author: McAlvav, J.

text:
    PEOPLE v. SAUERBIER.
    1. Homicide — Manslaughter—Trial—Criminal Law — Charge.
    Respondent, who was convicted of manslaughter committed after an altercation in which the parties decided to go into the country and fight it out, respondent striking deceased soon afterwards and knocking him down, was not prejudiced by the charge of the court that if he acted in self-defense, fearing great bodily harm or danger to life, he should be acquitted; and the instructions were not open to the objection that they confused the issue, for if they were inapplicable on the ground that the parties were engaged in carrying out an unlawful purpose, the instructions were not harmful.

    2. Same — Assault During Perpetration of Unlawful Act.
    The fact that respondent.prepared himself for the fight, and attempted to carry out the unlawful purpose, warranted a conviction of the offense.
    3. Same — Murder in Second Degree.
    Upon expert testimony that the injuries found upon the deceased victim of the assault could not have been produced by a blow of the fist or fall on the sidewalk, and that respondent surreptitiously left the scene immediately after the assault, returning in a few minutes, sufficiently justified the court in submitting to the jury the question whether the orime amounted to murder in the second degree.
    4. Same — Requests—Trial.
    Nor did the court err in refusing to give several requests in the exact language used, where he instructed the jury fully, covering the same ground in the general charge.
    5. Same — Distinction as to Offenses — Instructions.
    It was error to instruct the jury that the practical difference between the two offenses was the length of the maximum penalty, but a verdict finding respondent guilty of the lesser offense rendered the instruction harmless.

      6. Same — Trial—Further Instructions.
    The court was not in error in limiting further instructions asked for by the jurors, subsequent to their retiring, to the points desired by them, without instructing them a second time as to the matters of self-defense, or of reasonable doubt, that had been covered in the charge.
    7. Trial — Criminal Law.
    It was within the discretion of the court to refuse to communicate to counsel for the accused the contents of a written communication sent to him by one of the jurors through an official of the court: his action in taking no notice of the matter was proper, and so long as he did not hold communication with any of the jury, respondent suffered no prejudice.
    Exceptions before sentence from Berrien; Bridgman, J.
    Submitted November 15, 1912.
    (Docket No. 6.)
    Decided January 3, 1913.
    Walter Sauerbier was convicted of manslaughter.
    Affirmed.

      Roger I. Wykes, Attorney General, and William H. Andrews, Prosecuting Attorney, for the people.

      Coolidge, Riford & White, for defendant.

       On the question of the standpoint of determination as to danger and necessity to kill in self-defense, see note in 3 L. R. A. (N. S.) 535.
      For insulting words or conduct as a provocation to homicide, see note in 4 L. R. A. (N. S.) 154.

   McAlvav, J.

Respondent was prosecuted in the circuit court for Berrien county upon an information in which he was charged with the crime of murder. The trial resulted in a verdict against him of manslaughter. The case is before this court on exceptions before sentence.

There is little dispute in the testimony in the case upon the circumstances surrounding this homicide. On November 21, 1911, deceased, Gilson Crumb, who lived at Colonia, a village located about 10 miles from Benton Harbor, went in the afternoon with another man to Benton Harbor, where they visited some saloons and drank some beer. Between 10 and 11 o’clock that night they went together to the street car station in Benton Harbor, for the purpose of taking the electric interurban car to Coloma. That evening respondent and two companions came from St. Joseph to Benton Harbor by street car, about the hour of 7 o’clock, where they also visited saloons and drank some whisky and considerable beer. They arrived at the street car station after deceased and his companion, for the purpose of taking the car back to St. Joseph. When they, arrived at this station, deceased and two or three others were standing on the cement sidewalk in front of the station, near the storm door. Soon after arriving there respondent in some manner became engaged in conversation with deceased and his companion, during which each expressed a willingness to engage in a fight, and deceased called respondent a vile name. Respondent suggested that there was too much light to fight at that place, and they went down the street about. 10 or 15 rods, where it was quite dark. All the others remained on the sidewalk in front of the station. The witnesses could not see what these parties did while they were together, and the only statement of what occurred is that of respondent, who says deceased desired to fight him, and started to strike him, but that he held him and talked him out of the idea of fighting. They came back in a short time to the station and joined their companions. Soon after deceased used some vile language, claimed to be directed to respondent, stating, “If he will go out into the country, I will lick him.” Soon after this respondent went into the street car station, as he testifies, thinking from deceased’s remarks that he desired to go out into the country, and that he went into the station for the purpose of taking off his overcoat, and to go with him and fight him. When respondent went through the storm door, deceased stood at the side or near it. He at once took off his overcoat, and said to the station agent, “ I am either going to give him a licking or take a licking.” He then came out of the station, through the same door, and immediately struck deceased with his left fist a blow somewhere upon his head, which knocked him down upon his back, causing unconsciousness from which he never recovered. He was first carried into the station, and later removed to a doctor’s office and afterwards to a hospital in Benton Harbor, where he died during the next day.

There is some dispute in the testimony as to what occurred just before the blow was struck. There is agreement that deceased was still standing on the sidewalk near the door, on the right-hand side. A witness who came with respondent testifies that as he came out of the door deceased called him a vile name and raised his hand as if to strike, and then respondent struck him. Respondent testifies to the same thing, and that he thought deceased was about to strike him. All the other witnesses testify that as respondent came out of the door deceased called him a vile name, but made no attempt to strike him, and that when respondent struck him deceased’s hands were either down at his side or in his pockets. All the eyewitnesses agree that the blow was a swinging blow, but none of them located with certainty the place where it struck him. On the sidewalk where deceased fell were three blood spots of considerable size, which came from the wound in the head of deceased. An examination of deceased immediately after he was knocked down, and later at the doctor’s office, in the hospital, and at the post mortem, disclosed a wound in the occipital portion of the skull on the right side, about an inch and a half from the middle line, just below the occipital prominence, about an inch long, tending slightly upward and inward toward the left. It was an incised wound, and the scalp was cut slanting upwards. It extended through the scalp and also through the periosteum into the bone. No other place was discovered on the face or the body showing evidence of a blow or injury, although it was examined for that purpose. Two fractures were found in the base of the skull, from which death resulted. The record shows testimony of at least one of the attending physicians that, in his opinion, the wound found upon the head of deceased could not have been made with the naked fist, nor by falling backwards upon an ordinary cement sidewalk.

The errors relied upon by respondent and discussed in his brief will be considered. It is insisted that in the charge to the jury the court did not properly submit the question of self-defense, claimed by respondent. On the part of the people, it is claimed that there was no element of self-defense in the case, and, even if there was evidence warranting the submission of the question of self-defense to the jury, it was fully and fairly submitted by the trial court.

The testimony of respondent was that the blow he struck deceased at that time was justified, as he claims, on account of his fear of him, and that at the time deceased appeared to be about to strike him. He also testifies that he went into the station for the purpose of removing his overcoat to go out and fight deceased, saying to the station agent, “I am either going to give him a licking or take a licking,” and went out at once, and dealt the blow as soon as he got through the door. The entire defense is that the blow with the fist was struck in self-defense, based by respondent upon the fact that he was in fear of deceased and thought he was about to strike him. Respondent’s claim is that the fracture of the skull and consequent death of Crumb was the result of striking his head upon the cement walk when he was knocked down by respondent.

The charge of the court upon the matter of self-defense, which is claimed by the respondent was prejudicial and erroneous, is as follows:

“ The defendant claims that he was in fear, and struck the blow that caused the death of Gilson Crumb in self-defense. The law gives to every person the right to protect himself from an unlawful assault. * * * Where assault is made, or attempted to be made, or a person honestly believes that an assault is about to be made upon him, the right to resist exists, but the resistance must be in proportion to the danger which is apprehended. If, however, the person assailed honestly believes his life is in danger, or that he may receive serious bodily harm, he has a right to resist, even to taking the life of the assailant. The person assailed is to be judged by the circumstances and conditions as they honestly appeared to him at the time. It is for you to say, considering his actions as told by himself, in going down the street with Gilson Crumb, in going in to the interurban station and returning at the time and in the manner he did, his statement concerning his fear and his intent, and what he said and did, taken together with all the other evidence in the case, whether the respondent honestly believed he was in danger of losing his life, or in danger of great bodily harm, or that an assault was about to be made upon him, and that it was necessary to strike Crumb in the manner he did in order to save himself from such apparent and threatened danger. Although you may not be satisfied that the respondent, in committing the act, acted in self-defense, still, if the testimony in this case creates in your minds a reasonable doubt as to whether or not the act was done in self-defense, the respondent is entitled to the benefit of the doubt, and it will be your duty to acquit him.”

If the question of self-defense, under the facts in this case, was a proper one to be submitted to the jury, which we do not here determine, the charge above quoted was not prejudicial to respondent, and no error can be predicated upon it.

The complaint made to this portion of the charge is not that the law as given was not correctly stated, but upon the ground that it was inappropriate to this case and confused the jury, and that the jury was left to infer that if the respondent was in fear of his life or of great bodily harm at the hands of deceased he was guilty at least of manslaughter; and this upon the theory that there was nothing in the case to warrant the court in charging the jury as if respondent, under any circumstances, could be convicted of manslaughter. This necessarily is closely connected with the second contention urged by respondent that the court erred in the instant case in charging the jury as to the law applicable to murder and voluntary manslaughter, for the reason that there was no evidence that the killing was voluntary or intentional.

There is no dispute but that respondent prepared himself to fight deceased out in the country, as he claims, or that at the time he struck this blow he was on his way to carry out that purpose. It is not claimed that it was a lawful purpose, and from respondent’s testimony it is evident that his intention was to carry the fight to a finish. Proceeding to the execution of this intention, clearly formed, his claim is that at the door of the station he struck deceased in self-defense, because he called him a vile name and appeared to be about to strike him. The verdict of the jury has disposed of the question of fact upon this proposition, contrary to respondent’s contention, and it therefore requires no further consideration.

In urging that the court erred in instructing the jury as to murder in the second degree, because there was no evidence in the case to warrant it, the testimony of some of the physicians as to the nature of the wound through the scalp and into the skull, and also their opinion that such a wound could not have been caused by a blow with the naked fist, or by falling backward upon the cement sidewalk has evidently been overlooked. This testimony, taken in connection with the undisputed fact that respondent, very soon after deceased was knocked down by him, went back into the station and asked the station agent if he could get out the back way, and was let out by him through the back door, which was kept locked, and very soon came around from the back of the station, was for the jury to consider as a question of disputed fact, and which warranted the court in charging as he did upon the law applicable to murder in the second degree.

The respondent contends that the court erred in not giving certain of these requests to charge in words exactly as presented. This court has of recent years held that, as a general rule, where the law has been clearly and correctly stated by the trial court in the charge as given, a refusal to give such requests in the exact words as presented will not be error. This rule applies to the instant case.

The jury, after retiring, returned to the courtroom twice for further instructions upon the matter of provocation, and also as to the distinction between murder and manslaughter. Colloquies of considerable length were held between the court and counsel, and the court finally charged the jury upon these matters, practically repeating what had already been given under the subjects in the former charge.

Upon the first return of the jury into the courtroom, it is apparent from what was said that the questions upon which further instructions were desired were as above stated, and upon these instructions given by the court at the time no error is assigned, except as to the matter of reasonable doubt. The record does not show a request on the part of the jury for such instructions, and the charge already given upon the question of a reasonable doubt was a proper one.

When the jury were again before the court asking for instructions, the court gave further instructions upon the same questions, to which counsel for respondent have excepted, as to what was said relative to provocation. It will be of no benefit to state all that was said upon this matter, but it appears that the court repeated substantially what he had already correctly given as to provocation.

In his charge to the jury at that time, relative to the distinction between murder in the second degree and manslaughter, the court at length stated the law correctly, and no exception was taken. A statement was then added that the practical difference was one of maximum penalty, and it is urged that this was prejudicial to defendant and constituted reversible error. This statement was not correct, and should not have been made in the instant case. However, we do not think that it was prejudicial. The verdict of the jury found respondent guilty of manslaughter, and his counsel recognize in their brief and argument the rule that respondent cannot complain of such error, where the result is a conviction of the minor offense.

At no time did the jury ask the court for further instructions upon the question of self-defense. The complaint is not made on the part of respondent on the ground that no such instruction was given. In our opinion the court properly confined these later instructions to matters requested by the jury, and from the result it appears that the respondent was not prejudiced.

After the jury retired for the last time to deliberate on a verdict, and while the court was in session, and in presence of both counsel, the court officer handed a paper to the court, and the record shows as follows:

“Mr. Biford: (Counsel for Respondent): Is that a communication from the jury ?
“ The Court: Yes.
“Mr. Biford: I think we are entitled to know what that communication is from the jury.
The Court: I think not.
Mr. Biford: The circuit judge on the bench has received a communication from the jury. Counsel for respondent respectfully asks the court to know what that is, and the court respectfully declines, and we take an exception.”

Error is assigned upon the refusal of the trial court to state the communication sent in by the jury. No statement was made by the court to any person of the nature of this communication; nor was any communication sent by the court in answer thereto. No authorities are cited in support of the contention of respondent, and this court has been unable to find any directly in point. There are authorities which hold that a court may not communicate with a jury after it has retired to deliberate, or in the absence and without the consent of counsel go before the jury for the purpose of instruction. In the instant case the court did not communicate with the jury. It is evident that the jury, or some member of it, communicated upon some matter, in writing, with the court. This was voluntary, and a matter which was not within the control of the court, and apparently was not a request for further instructions. Whatever it was, the learned trial judge, without divulging the matter, paid no attention to it. In our opinion this was a reasonable exercise of his judicial discretion. Nothing prejudicial to the respondent appears from this communication, and no error was committed.

We find no prejudicial error in this case. The conviction is affirmed, and the. court below is directed to proceed to judgment.

.Steere, C. J., and Moore, Brooke, Stone, Ostrander, and Bird, JJ., concurred. Kuhn, J., did not sit.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    CLOTHIER v. MILLER.
    1. Taxation — Auditor General — Cancellation of Sale.
    The auditor general is authorized to cancel tax sales which are invalid because of defects in notice, process, or decree; and the sale is equally void whether he takes such action or not.
    2. Same.
    Whether or not a change or erasure made in the date of cancellation, as shown on the records in the office of the auditor general, was fraudulent, was not material, where the cancellation, in fact, took place before the issuance of deeds to the applicant for purchase, and was duly made under Act No. 169, Pub. Acts 1899 (1 How. Stat. [2d Ed.] § 1910).
    3. Same — Notice—Laches.
    Having actual notice in 1900 of a tax title purchase against lands owned by them for taxes of 1887, and having instituted proceedings to secure possession by ejectment in 1906, complainants’ bill to annul tax deeds filed in 1909 was barred by laches. 1 Comp. Laws, § 3959 (1 How. Stat. [2dEd.] § 1911).
    4. Same — Redemption—Decree.
    Without some attempt to make a tender or payment into court of the amount required to redeem, a decree denying the right of redemption was justified after more than six months from due service of notice pursuant to 1 Comp. Laws, §§ 3959, 3960, as amended (1 How. Stat. [2d Ed.] §§ 1911, 1912). The time for redemption is not extended by the commencement and continuation of a suit to determine the validity of the tax deeds.
    Appeal from Chippewa; Steere, J.
    Submitted November 15,1913.
    (Docket No. 36.)
    Decided January 3, 1913.
    Bill by Caroline M. Clothier and another against David I. Miller and others for the annulment of certain tax deeds and other conveyances. From a decree for defendants, complainants appeal.
    Affirmed.

      D. W. Glosser (Davidson, Hudson & Green, of counsel), for complainants.

      Roger I. Wylces, Attorney General (Charles W. McGill and George L. Hauser, of counsel), for defendant auditor general.

      John W. Shine, for defendant Miller.

      E. S. B. Sutton, for defendant Peninsula Bark & Lumber Co.
   Brooke, J.

The opinion of the learned circuit judge who heard this cause very clearly sets forth the facts, and his legal conclusions thereon. It follows:

“This suit is instituted to set aside certain tax deeds and conveyances under them held by certain of the defendants on the following lands in Chippewa county: N. £ of the N. E. í, section 33, township 45 N., range 1W., N. E. i of N. W. J, section 33, township 45 N., range 1 W.; N. E. J of S. E. 1, section 33, township 45 N., range 1 W. The bill was filed in August, 1909, following two previous proceedings brought by complainants against the same tax titles. The first was a petition In chancery filed in 1906. After an answer had been filed by defendant Miller, the matter was continued from term to term for over a year, and finally dismissed for want of prosecution. The second was a suit in ejectment brought in June, 1908. On the trial of that action, plaintiffs, who are complainants in this suit, introduced evidence against the validity of these same tax titles, and sought to defeat them. The action was apparently brought only for that purpose. On the trial, it was shown that the lands were wild and unoccupied. The tax titles were not found to be invalid, but subject to the redemption under the tax law; it being found that certain attempted notices of tax purchase served in 1900 were defective in failing to name the State and county in which the lands were located, and it was therefore held that the complainants were, at that time, entitled to possession as against the defendants.
“ Following this decision, new notices were served by defendants, proof of service being filed with the county clerk March 23, 1909. No redemption was made or attempted by complainants, but this bill was filed the following August attacking the validity of the same tax titles on the ground that the auditor general erroneously computed the amount required by law to be paid for the same. It is undisputed that the purchaser paid to the auditor general’s oflSce an amount in excess of the sum required by law, but it is claimed that $7.60 was returned which should have been retained. These lands formerly belonged to Arthur Hill, a lumberman of Saginaw, and they had apparently been abandoned as not worth paying the taxes upon, in the same manner as were many other cut over lands purchased by lumbermen for the pine in early days. These lands have been delinquent for taxes for over 20 years. Truman R. French made application in 1900 to purchase these lands, together with others, at the auditor general’s office. In connection with the application for the purchase, Mr. French deposited with the auditor general $491.10. Tax deeds were issued on this application, dated March 28, 1900, for the years 1891, 1892, 1893, and 1894, and as a condition of purchase the taxes were paid on the lands for the years 1887,1890, and other years. On August 14, 1900, French had notice of purchase under tax sale served on Arthur Hill and Arthur Hill Company as the fee owners in the recorded chain of title. Proof of service of notice was filed June 13, 1904. These notices did not contain the name of the State or county in which the lands were situated and were held invalid as heretofore stated.
“The complainants claim title through certain deeds obtained from persons in whom the fe9 rested through a regular chain of title from the original purchaser. _ These deeds are quitclaim in form, and the consideration is nominal. The form of conveyance is such that whatever title complainants have acquired is subject to all defects, delinquencies, and laches which could be imputed to their grantors. As to the proper amount legally required to be paid the auditor general for the French purchase, we have three different computations presented and urged, varying according to the claims and theories of the parties in interest. On behalf of the auditor general, it is contended that the sum paid him was the exact amount required by law. In behalf of the defendant Miller, it is contended that the auditor general retained from the amount deposited with him $18 in excess of the legal amount, for interest and fees and unauthorized resales, he having no right to include in his petitions for certain years lands previously sold and then held by the State as State tax lands. The discrepancy of $7.60 between the amount retained by the auditor general and that contended for by complainants arises from the amount computed as due for the years 1887 and 1890, the same being computed by the auditor general on the basis of canceled sales and amount required to be paid as condition of purchase for other years, rather than a purchase for those years; while complainants contend that, the lands having been previously sold for those years and bid in by the State, no legal cancellation had been or could be made by the auditor general and that computation should be on the basis of a purchase rather than a payment of taxes, which would increase the amount required as contended for. The sale for the taxes of 1887 was absolutely void for lack of the dollar mark in the decree, a defect in the form of tax record furnished by the auditor general for that year, and practically uniform throughout the State. This defect was held jurisdictional in the case of Millard v. Truax, 99 Mich. 157 [58 N. W. 70], and has been repeatedly so treated in all our courts. As to that particular year, it has been expressly said by our Supreme Court:
The land is in a class by itself, under the charge and control of the auditor general.’
“ The sale for taxes of 1890 was void for defect in proof of publication and failure of the county treasurer to make and file proper proof of sale. The sales for those two years were equally invalid, whether the auditor general so declared and canceled them or not. It is the opinion of this court that he had power to cancel them at any time for the reasons stated, and it is in proof that he did cancel them and the cancellation was determined upon some time before January 4, 1900.
“ An examination of the State tax lands list No. 13, produced from the auditor general’s office, and offered in evidence, shows that a change had been made on that record in the date of cancellation, it appearing as January 2, 1909, a date immediately prior to French’s application to purchase. In behalf of complainants, this is dwelt upon as a serious matter, indicating some favoritism to French and possible dishonesty in making up the records. This changing of records, for which various theories, but no satisfactory reasons, are given, naturally weakens the authenticity of such records and lays them open to suspicion, but, in the view taken by the court of the legal aspect of this case, the alteration or change becomes immaterial from any point of view; it being satisfactorily shown that the cancellation took place before issuing the tax deeds. In making the cancellation, the auditor general was acting under authority of section 139 of the general tax law [Pub. Acts 1899, Act No. 169, 1 How. Stat. (2d Ed.) § 1910], and as he made the cancellation prior to issuing the deeds or receipts for sales of other years, the exact date is unimportant.
“The manifest object of section No. 139 was to provide ways to enforce the lien of the State and collect its revenues. That object would be more adequately and quickly accomplished by a cancellation followed by a speedy pay-. ment of the State lien for that year in connection with the purchase of tax titles of other years than by the slower and more certain process of cancellation, petition for sale, advertising, de’cree, and resale in the regular course of delinquent tax proceedings. The claim of laches urged by defendants has much force in the opinion of the court. The complainants, holding by quitclaim deeds, have imputed to them, not only their own delinquencies, but those of their grantors. These lands have been returned delinquent for taxes since 1887. The owner was presumed to know that his lands are annually taxed, to know when the taxes fall due, and the process and time of proceeding to enforce the State lien. No attempt or offer was ever made since 1887 by the complainants or their grantors to pay these taxes, except in connection with the recent attempt to obtain cancellation of the French purchase. As early as 1900 complainants received actual notice of French’s tax titles and of his purpose to perfect the same, although the notice was not in legal form to cut off redemption. As early as 1906, complainants’ interests were in charge of an attorney, who was instituting proceedings in their behalf. Various letters were received from the auditor general stating the situation. They were fully advised, and had actual notice and knowledge touching these delinquent taxes and the tax titles for over three years before this suit was begun. The rule declared in Hayward v. O’Connor, 145 Mich. 52 [108 N. W. 366], seems to us to be in point in this case and to control. The bill of complaint will be dismissed, with costs.”

We are satisfied that the learned circuit judge reached a correct conclusion as to the validity of the sale on the French application, and that complainants’ bill was properly dismissed.

Upon the filing of the opinion in the court below, complainants presented a decree in line with the opinion, but containing the following clause:

“It is further ordered, adjudged, and decreed that complainants may redeem the lands described in said bill of complaint by depositing with the register in chancery of said court the amount required to redeem said lands, under the provisions of sections 140 and 141 of the general tax law, within 30 days from the date on which solicitor for complainants receives notice of the entry and filing of this decree, and not afterwards.”

This decree the circuit judge refused to enter, but, instead, entered a decree dismissing complainants’ bill without condition. In this court complainants urge that, if we find the French sale to be valid, we should enter a decree permitting complainants to secure a reconveyance of the property upon complying with the provisions of sections 140 and 141 of the general tax law (1 Comp. Laws, §§ 3959, 3960, 1 How. Stat. [2d Ed.] §§ 1911, 1912). It appears from the record that proof of service of the notice to redeem was filed on March. 23,1909. By section 141 of the tax law, it is provided that:

“Any grantee or grantees * * * in the regular chain of title * * * shall be entitled to receive from the person so claiming under and by virtue of such tax deed, at any time within six months after the personal service of such notice or the date of mailing said notice by registered mail * * * a reconveyance of such interest in such lands so held, together with all certificates and tax receipts * * * upon payment to the owner of such tax deed or the register in chancery * * * the amount paid upon such purchase, together with 100 per cent, in addition thereto. * * * * ”

It is therefore apparent that complainants had a right upon compliance with this section to demand a reconveyance from defendants at any time prior to September 23, 1909. No attempt was made by complainants to secure such reconveyance within the time limited by the statute, but, instead of so doing, they commenced this suit on August 4, 1909. This was within the six months, during which the statute confers the right to secure a reconveyance. Section 142 of the tax law, as amended by Act 142 of the Public Acts of 1905, provides that the purchaser at the tax sale shall not enter into possession of the lands so purchased until six months after he has given notice to the parties in interest. This section contains the further provision:

“ Provided, that if suit or other proceedings is commenced before the expiration of the said six months by the owner of the land so purchased, or one having a redeemable interest therein, to set aside the sale thereof, the purchaser under tax sale or his grantee shall not enter into possession of the land until the final determination of such suit or other proceeding.”

It would seem to be the contention of complainants that the commencement of the suit to test the validity of the tax sale not only prevents the purchaser from taking possession during the pendency of the proceeding, but likewise operates to extend the period fixed by section 141 during which a reconveyance may he secured. To so hold would give the complainants the right to redeem more than three years after the expiration of the six months allowed by statute. The right to redeem under this section has been held to expire six months after the sheriff’s return of service of the statutory notice has been Sled. Pike v. Richardson, 136 Mich. 414 (99 N. W. 398); Holmes v. Loud, 149 Mich. 410 (112 N. W. 1109). In the case of McDonald v. Miller, 162 Mich. 81 (127 N. W. 262), a decree dismissing complainant’s bill of complaint, but reserving the right of the complainant to obtain a reconveyance under the provisions of sections 140-143 of the general tax law within 30 days after the final determination of the cause, was affirmed by this court. The right of the circuit court to make such decree does not appear, however, to have been questioned in that case, and in this court the defendant asked that complainant be given the right to redeem. We can perceive no good reason for extending the scope of the statute by a strained construction, even if that were possible. Complainants could readily have protected their rights by paying into court the amount necessary to secure a reconveyance at the time suit was started. The fact that they did not do so would seem to indicate that at that time they did not care to place themselves in the position of being compelled to accept a reconveyance in case of the failure of their attack upon the validity of the French sale. If the situation has now changed, and they find, when too late, that it would be to their interest to. secure a reconveyance under the statute, they cannot complain.

The decree is affirmed, without costs to either party.

Moore, McAlvay, Stone, Ostrander, and Bird, JJ., concurred. Steers, O. J., and Kuhn, J., did not sit.


text:
    LILLIE v. AUDITOR GENERAL.
    Taxation — Mandamus—Redemption—Certificate of Error.
    During the pendency of a suit involving relator’s right to redeem from a tax sale, mandamus will not lie to determine the same issues and to compel the auditor general to issue a certificate of error and permit the relator to redeem from the sale without paying the statutory penalty.
    Mandamus by Walter I. Lillie, trustee of the estate of Mary A. White, deceased, against Oramel B. Fuller, auditor general, to compel the issuance of a certificate of error as against certain sales of State tax lands, and for other relief.
    Submitted December 19, 1913.
    (Calendar No. 35,388.)
    Writ denied January 3, 1913.

      Walter I. Lillie, in pro. per.

      Roger I. Wykes, Attorney General (Charles W. McGill and George L. Hauser, of counsel), for respondent.
   Brooke, J.

This is an application for a writ of mandamus to compel the auditor general to issue a certificate of error canceling two certain tax deeds conveying lands belonging to the estate of which relator is trustee. Relator further prays:

“That your petitioner be allowed to redeem from the sale of said property for the tax thereon assessed for the year 1908 and sold as State tax land at the sale made in May, 1913, without paying the 100 per cent, as required by section 140 of the tax law of the State of Michigan.”

Inasmuch as it appears from the petition and answer that relator on July 3, 1913, filed a bill of complaint in the circuit court for the county of Ottawa, in chancery, wherein the purchaser at the tax sale, his attorney in fact, and the respondent herein were made defendants, in which proceeding substantially the same questions are involved as are here presented, we must decline at this time to pass upon the merits of the case.

Relator’s rights either have been or may be fully protected by the payment into court of a sum of money sufficient to entitle him to a reconveyance upon any theory, after which the matters in controversy can be determined by the court to which relator has already appealed and which has assumed jurisdiction.

Writ denied.

Steere, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Ostrander, J.

text:
    SNOVER v. BOYNTON.
    1. Appeal and Error — Demurrer—Multifariousness—Special Demurrer — Equity.
    The objection that a bill is multifarious is not a ground of general demurrer and an order overruling it is not appealable.
    2. Corporations — Officers and Directors — Accounting—Beneficial Associations — Receiver—Equity.
    The receiver of a mutual fraternal organization engaged in loaning and investing funds is entitled to maintain a suit in equity for accounting as against officers and directors of the association who were charged by the pleading with having neglected their duties, permitting the secretary of the organization to handle funds in an improper and unauthorized manner, as set forth in the bill, and failing to audit his accounts in a reasonably careful manner, so that he was enabled to convert funds of the association to his own use and to mate loans to his wife and otherwise divert the property of the association.

      3. Same — Parties—Joinder.
    The several officers and directors of the association who were jointly and severally charged by averments of the bill with neglect, were properly made joint defendants; a demurrer was properly orerruled although no conspiracy was averred.
    Appeal from Sfc. Clair; Beach, J.
    Submitted November 20, 1912.
    (Docket No. 77.)
    Decided January 3, 1913.
    Bill by Horace G. Snover as receiver of the United Home Protectors’ Fraternity against Charles L. Boynton and others for an accounting and general relief. From an order overruling demurrers of the defendants to complainant’s bill defendants appeal.
    Affirmed.

      Lincoln Avery and Thomas Wellman, for complainant.
    JET. L. Stevens (William Mitchell, of counsel), for defendant Wilson.

      Phillips & Jenks, for other defendants.
   Ostrander, J.

In a bill of filed, probably, in April, 1911, in the circuit court for the county of St. Clair, in chancery, the court is advised that complainant is receiver of the United Home Protectors’ Fraternity, including the supreme lodge thereof, the purposes and powers of which fraternity were:

“ To unite fraternally all reputable persons of legal age thereby promoting the social relations of its members. To diffuse the principles of economy, industry, benevolence and charity, and to more particularly encourage and foster the incentive to home building. To transact a building and loan business through the lodge system, embracing tontine and maturing benefits, with a liability limited to the payment of the matured certificates of the persistent members. To issue membership certificates in series or otherwise, to be paid out of the investment funds of the order, upon the maturity of such certificates, or as hereinafter provided. To loan money to its members and enforce the collections of all debts and obligations due to the order. To purchase at sheriff’s sale or other judicial sale, or at any other sale, public or private, any real estate upon which the order may have a claim, and the real estate so purchased to sell, convey, rent, lease or mortgage to any person or persons whomsoever.”

The supreme lodge of the fraternity was organized in January, 1894, when it filed articles of incorporation under the provisions of Act No. 68 of the Public Acts of 1893, pursuant to which it designated the Commercial Bank of Port Huron as depositary of its funds and securities, and no other depositary was designated prior to March 28, 1908. The fraternity is insolvent and not able to pay its creditors. (When it became insolvent, or when complainant was appointed its receiver, does not appear.) Certain persons who are made parties defendant were, on March 20, 1908, and for some years prior to that date, officers of the supreme lodge of said fraternity, and had assumed to perform the duties of the respective offices.

Sixth. It was the duty of the said corporation through its officers, the supreme executive board and the supreme board of trustees, to cause to be deposited all of the funds and securities of said fraternity in the said officially designated depositary, viz., the Commercial Bank of Port Huron. When said funds were so deposited in said officially designated depositary, it became the duty of the proper officers to divide, and to eause to be divided, said funds into three separate funds or accounts as follows: A maturing benefit fund, a general fund, and an investment fund. And it then became and was the duty of the said supreme executive board and the individuals thereof, jointly and severally as trustees, directors, and officers and the depositary, viz., the Commercial Bank, to guard and protect the said funds, moneys, and securities of and belonging to the said corporation and to see that the same were not dissipated, lost or used for any other purpose or purposes than those purposes designated in Act No. 68 of the Public Acts of 1893, and the articles of incorporation and organization of said corporation and its laws hereto annexed, and made a part hereof.
Seventh. This complainant alleges that it became the duty of the said supreme executive board and each member thereof and the said depositary, viz., the Commercial Bank, to create no other funds or accounts or permit any person or persons to create any other or different funds or accounts than the said maturing benefit fund account, the general fund account, and the investment fund account, and that it became and was their joint and several duties as a supreme executive board and individual members thereof and the board of supreme trustees, and the individual members of said board, and the officers of said corporation, to not allow or permit any money, funds, or securities to be withdrawn from any of said accounts in said depositary for the purpose of creating another or a different account known as a secretary’s account, which this complainant alleges the said supreme executive board, the several officers of said corporation, and the supreme board of trustees did do and permit, viz., did permit and allow the creation of an account known as United Home Protectors’ Fraternity account and referred to as the secretary’s account or fund, and complainant alleges that the moneys and funds of said fraternity were withdrawn from the investment fund account, so kept with the said depositary, and transferred to an account known as the secretary’s account, and complainant alleges that each and all of the said persons, officers, trustees, and boards and said depositary were guilty of great negligence and a want of due and ordinary diligence in allowing and permitting the creation of said secretary’s account and the withdrawal from the investment fund account of funds and moneys as herein alleged and over which account said several persons and boards exercised no control whatever, which resulted in the loss of many thousands of dollars to said fraternity and its membership, all of which would have been prevented and the said funds and moneys saved to the said fraternity and its membership had due diligence, care, and attention been exercised by the said several persons or any of them in the performance of their duties as officers, trustees in the management of the business of said fraternity.
“ Eighth. Complainant alleges that the said trust depositary and its officers and agents were not legally authorized to transfer any of the funds or moneys of the said corporation from the investment fund account, to the said unauthorized account, viz., the secretary’s account, which the said trust depositary through its officers and agents did do, and complainant alleges that the said trust depositary, viz., the Commercial Bank, was guilty of great negligence in the performance of its duties as such depositary and trustee in transferring funds from the regular and legally authorized account to said secretary’s account.
Ninth. The investment funds were loaned to members of said fraternity, who made application therefor, as provided by and in the by-laws of said order. The said funds were required to be deposited in the investment fund account so kept by the said trust depositary. Complainant alleges that for many years prior to the 28th day of March, 1908, the said officers, the supreme executive board and the supreme board of trustees, and the said depositary bank, its officers and employés, jointly and severally as boards and as individuals had permitted and allowed the supreme secretary of said order to withdraw funds from said investment fund account, contrary to and in violation of the act under which said fraternity was organized and in violation of its articles of organization and the laws of said fraternity, and to deposit them to his credit as secretary of said fraternity, and the said several boards and the members thereof and the said officers, trustees, and the said depositary, and its officers and employés, in so permitting the transfer and withdrawal of said funds, were each and all guilty of great negligence, which resulted in the loss of the funds of the said fraternity in a large amount aggregating $125,000 and upwards. The complainant alleges in this connection, as a part of this paragraph, that said William L. Wilson, supreme secretary, and other persons checked upon and drew from said secretary’s account, so created in said depositary, large sums of money, a large amount of which this complainant alleges has not been accounted for and have not come to his possession as receiver of said corporation, and which were not used by said Wilson or any other person to pay and discharge obligations of the fraternity to its membership and which said funds are of right the property of this corporation and should be accounted for and returned to complainant as receiver therefor and for the benefit of said society and its membership.
“Tenth. Complainant alleges that through the negligence, inattention, and mismanagement of the affairs of the said corporation, by its officers, supreme executive board, and supreme board of trustees, in not supervising, directing, and managing, collecting, and safeguarding the investment of its funds in accordance with the laws of said fraternity and through failure to perform their several duties as officers and trustees, the said funds and assets of said association or fraternity became dissipated and lost, fraudulently wasted, converted, and squandered. Complainant alleges that through the neglect of the duties assumed and required to be performed by said board’s officers and trustees, the said secretary, William L. Wilson, was permitted and allowed general and unrestricted access to the funds of said order resulting in the said Wilson fraudulently appropriating to his own use the proceeds of the assets and securities and funds of the said fraternity in an amount upwards of $125,000, all of which would have been saved to the said fraternity and its members, had the said several officers and trustees and the said trust depositary bank performed their said several duties required of them and each of them, by the terms of Act 68 of the Public Acts of 1893 and the laws of the said corporation which are made a part of this bill.
Eleventh. The said supreme officers, and the said supreme executive board as a board and as individuals, and the supreme board of trustees as a board and as individual trustees, carelessly and negligently and unmindful of their duties, permitted and allowed the supreme secretary, W. L. Wilson, to assume to perform their said several duties as officers and as trustees and directors, and, among other things, to receive the dues, assessments, fines, and other moneys due and payable from the members of said order and take charge of the same and enter the same upon his own individual books of account as the funds of the said Wilson, and to deposit such of said funds in the said trust depositary, as he, the said secretary, should elect to do, when they, the said officers, well knew that such funds, dues, assessments, and fines and all funds of every kind belonging to the order should be delivered to the supreme treasurer and by him deposited with the trust depositary as provided in section 22 of the laws of the said fraternity which are annexed and made a part hereof. And complainant avers that through such practice so negligently and carelessly permitted and allowed a large amount of the funds of the said corporation were fraudulently appropriated, converted, and wasted and lost to the said order. And complainant charges the said officers, trustees, and supreme executive board with mismanagement and neglect in performing their duties as such officials and trustees in not discovering and preventing said Wilson in retaining said funds, dues, and assessments and so charging the same to himself and commingling the same with his individual funds and moneys, all of which would have been revealed to the said officers, the members of said supreme executive board, and the said supreme board of trustees, had they been watchful and vigilant in the performance of their duties in the management and conduct of the business of the said corporation which they, and each of them, agreed to be when assuming the duties of said positions as officers, directors, and trustees, and as a result of said negligence and inattention many thousands of dollars belonging to said corporation and its membership have been lost and dissipated and not accounted for to complainant as receiver.
“Twelfth. The said trust depositary, viz., the Commercial Bank, through its officers and employés, for 10 years and upwards immediately and next prior to the 28th day of March, 1908, negligently, carelessly, and without legal right or authority paid to the said W. L. Wilson, supreme secretary of said order, many thousands of dollars on divers warrants regularly drawn and countersigned by the proper officers that should have been used in payment of matured claims against said fraternity, all of said warrants being so paid without the indorsement of the persons to whose order such warrants were drawn, the said payment to the said Wilson being made in the following manner, viz.: By the said depositary then and there transferring an amount equal to the amount of the warrant presented from the investment fund to the so-called secretary’s fund. The complainant alleges that the depositary bank negligently and carelessly permitted the said Wilson to draw checks upon the said funds so transferred from the investment fund to the alleged secretary’s fund, and in that manner negligently, carelessly, and unlawfully permitted and allowed the trust funds of the said fraternity to be dissipated, squandered, and converted by said Wilson, to uses and purposes other than those for which the same were received and held, and by so doing the trust funds of said order were dissipated and lost to it and the said several persons in whose favor said warrants had been so drawn for the purpose of paying matured claims of said members against the order have not been paid, and complainant will not be able to pay to said creditors the amounts so due and coming to them until the said funds are restored by the said officers, trustees, boards, and the said depositary to the said investment fund and to complainant as receiver of said fraternity.
Thirteenth. A large part of the business of the said corporation consisted in loaning money secured by mortgage upon real estate to its members, and the mortgages and securities so taken were required to be deposited with the said trust depositary, viz., the Commerical Bank, and were required by said depositary to remain in its possession and control until said mortgages and securities were duly paid. Complainant alleges that was the practice and custom of the said supreme secretary, W'. L. Wilson, to enter and carry upon the records and books of account kept by him as such secretary the mortgages and securities belonging to the said corporation. Complainant alleges that the said trust depositary, upon the payment of any of said mortgages or securities, did duly surrender such securities or mortgages, and the same were delivered to the mortgagors or the persons entitled .to receive the same; but the said W. L. Wilson, as supreme secretary, continued to carry upon his said books and accounts many of said mortgages and securities as still on hand as valid and subsisting securities and assets of said fraternity and of great value, to wit, the face value thereof. Complainant avers that it was the duty of the supreme board of trustees as a board of auditors, in their monthly and annual audit of the secretary’s account in which capacity said trustees acted, to ascertain whether the assets disclosed by said accounts and records were valid and subsisting obligations, by an examination of the assets on deposit with the said trust depositary and the list of assets as disclosed by the records of said secretary, and he alleges that they wholly failed to perform this duty, and negligently and carelessly certified monthly and annually to the said fraternity and its membership that said accounts and records were correct, and that the assets consisting of mortgages and securities as shown by said books and accounts were in the possession of the said depositary bank, when in truth and in fact upwards of $100,000 of said assets in the form of mortgages and securities had been paid and discharged and should have been deducted from the assets of said corporation as published and reported to its membership, and becausé of said neglect and failure and misrepresentation there was lost to said corporation and its membership a large amount, to wit, $125,000 and upwards.
“ Fourteenth. It became and was the duty of the supreme executive board to require a true and correct monthly report of the detailed financial transaction of said corporation for the preceding month from said supreme secretary, and it was the duty of said supreme executive board and the members thereof to examine and determine the correctness of the said reports, by such means and methods as would reveal their correctness or falsity, and complainant alleges that the said reports were false and misleading and fictitious, in that they did continuously for some years prior to March 28, 1908, contain and show that the said corporation was possessed of a large amount in assets, to wit, securities consisting of mortgages and notes which in truth and in fact it did not own or possess, the same having been paid and discharged, all of which should have been discovered and detected and further loss prevented to said fraternity by said supreme executive board, and which said false conditions would have been revealed by an examination and comparison of the assets, viz., said mortgages and securities on deposit with the said depositary and the said books of account and reports, and said negligence and inattention to duties resulted in the loss and dissipation of a large amount of the assets of said fraternity, for which the said officers and trustees should account to the complainant as receiver of said corporation.
“Fifteenth. It was also the duty of the supreme executive board and its members to examine the monthly report of the supreme secretary for the purpose of ascertaining if the same agreed with the true condition of the finances of the order for the previous month, and complainant alleges that said board and its members so negligently, carelessly, and indifferently acted in this regard that they failed to ascertain that the actual cash in the said depository to the credit of some of the funds or accounts of the order, and in particular the so-called secretary’s fund, was a less sum than that shown by any report, and as a result of this negligent conduct and failure to perform the duties resting on said board and its members the funds of said order in a large amount were dissipated, lost, and squandered by the said W. L. Wilson, and have not come to the possession of complainant for said order and its membership.
Sixteenth. It was the duty of the supreme executive board and its membership to examine the annual report of the supreme secretary, for the purpose of ascertaining if said report truthfully disclosed the receipts and disbursements of funds for the preceding year and to determine if the same correctly stated the full particulars relating to the loans and funds of the order; and complainant alleges that said supreme executive board and its membership were guilty of such negligence in performing the aforesaid duty for upwards of 10 years immediately prior to March 28, 1908, that the same resulted in false reports being made by said secretary as to assets and cash on hand belonging to said order, thus deceiving the membership and resulting in a loss of its funds in a large amount, all of which should have and would have been prevented by said supreme executive board had they performed the duties assumed by and required of them by the laws of the" order and by the exercise of ordinary care and prudence in the management of the business of said fraternity.
‘ Seventeenth. It was the duty of the supreme executive board and each member thereof, including the supreme board of trustees, to examine the monthly and annual reports of the supreme treasurer of said order at the time it was required to examine the monthly and annual reports of the supreme secretary; and complainant alleges that said board and the individual members thereof so negligently and carelessly performed this duty for upwards of 10 years prior to March 28, 1908, that they failed to discover the assets and cash actually on hand were many thousands of dollars less than that shown by the reports of the said secretary, all of which would have been discovered by due diligence and ordinary care on the part of said supreme executive board and its members; and complainant alleges as a result of said negligence and inattention the assets and funds of said fraternity were for a period of years prior to March 28, 1908, dissipated, fraudulently appropriated, lost, and stolen by the said supreme secretary.
Eighteenth. The members of said supreme executive board were vested with all the power to manage and conduct the business of said fraternity during the recess of the grand lodge which met annually, and as such managing board it became and was its duty and the duty of its individual members to use great care in the conduct of the business of said order; but the complainant alleges that the said board and its members were guilty of such negligence, carelessness, and inattention in managing the affairs of said fraternity, that its ruin and insolvency were made possible, and that such insolvency and ruin would have been prevented had its officers and members of the supreme executive board and the said official depositary been diligent in the performance of their duties. That through their negligence the said Wilson was able to manipulate the accounts and funds of said order and to misapply the same whereby the same became lost to the order.
“ Nineteenth. The said supreme executive board and the supreme board of trustees and the individual members thereof were jointly and severally guilty of negligence, carelessness, and inattention to their duties and those assumed by them in failing to guard and supervise and protect the funds of said order knowingly permitted by them and each of them to be carried in the so-called secretary’s fund. Complainant alleges that said supreme executive board and the supreme board of trustees and the members thereof neglected to account and at no time ascertained from the said depositary the amount of cash in said account or the purposes the same was being used for, and at no time during the years of its existence, which was well known to them, and each of them, was the said account audited or checked up in any way, but, on the contrary, the same was neglected and permitted to be used and checked against by said Wilson and other persons for their individual purposes, and complainant alleges that this negligence and inattention to the duties required and assumed by said persons as trustees and officers resulted in the loss of many thousands of dollars to said order.
Twentieth. Complainant alleges that it was the duty of the supreme treasurers, Albert D. Bennett and Albert A. Graves, during the time they severally occupied the positions of supreme treasurer, to make monthly and annual reports to the supreme executive board that would show in detail the condition of the so-called secretary’s fund, and that it became the duty of the said supreme executive board and its members to call and require such monthly and annual statements, and complainant alleges that the said supreme treasurers neglected to make said reports, and said supreme executive board neglected to call and require such reports, and in this regard the treasurers and the said board and its members were guilty of such inattention and want of due care in the management of the said corporation’s business that the said W. L. Wilson was enabled to conceal his manipulations of the funds of the said order and to and did, as a result of said neglect and want of care, appropriate to his own uses many thousands of dollars of the trust funds of said order, which said funds then and there became lost to said order.
Twenty-first. The laws of said corporation prohibited the loaning of any of its funds to the officers thereof, but, notwithstanding said prohibition, the said officers, the supreme executive board and the said trustees and directors, permitted and allowed large sums to be loaned to the wife of said W. L. Wilson when the said trustees and officers should have known that such loans were in truth and in fact for the use and benefit of the said W. L. Wilson, and that said loans resulted in great financial loss to the said corporation.
Twenty-second. Complainant avers that the said corporation order is insolvent and not able to pay its creditors, and that it is necessary, and therefore he prays to this court that the said several persons, officers, and boards and the members thereof and the said trust depositary come to and make an accounting of the trust funds of the said corporation; that as one of the defendants the said depositary the Commercial Bank be required to come to an accounting with this complainant of its receipt and disbursement of all funds, assets, and securities of said corporation deposited with it during the period of time it acted as such depositary, and that it be adjudged responsible for and required to pay to complainant all moneys, lost, dissipated, or stolen by said William L. Wilson, through and as a result of any neglect or inattention of duty required or assumed to be performed by said depositary or its officers; that the said several defendants, to wit, Nathan S. Boynton, G. Christie Meisel, Albert D. Bennett, Albert A. Graves, Mortimer Willson, Daniel P. Markey, Albert Dixon, Edward Campbell, William L. Wilson, and Frank T. Wolcott, jointly and severally as trustees and officers and members of the supreme executive board and the supreme board of trustees, and that they be adjudged responsible for the loss of the assets and funds of said corporation resulting from their negligence as charged in this bill of complaint, and that the amount for which they and each of them jointly and severally should he held liable, be determined by this court, and that they be required to pay over and deliver to complainant the several sums and amounts found and determined by this court at the hearing to have been intrusted to their care and thereafter lost and dissipated through or on account of their joint or several neglect of or inattention to the duties required or assumed by them as officers, trustees, directors, and managers of the affairs of said corporation.”

With the bill of complaint profert is made of the printed laws of the fraternity. To this bill the defendants Boynton, executors of the estate of Nathan Boynton, who was president of the fraternity, and seven other of the defendants, not including the defendant bank, filed their joint and several demurrers, and defendant Mortimer Willson filed his separate demurrer. These demurrers coming on to be heard were overruled, with leave, upon payment of certain costs, to answer the bill of complaint. From the order overruling the demurrers, the demurring defendants have appealed to this court.

It is stated in the bill that it is filed for a discovery and an accounting “and upon information derived from the books, records, and papers of the fraternity,” and upon the receiver’s belief based thereon. It is the apparent theory of the bill that funds came into the possession and control of the demurring defendants, as trustees, officers, and agents of the society, and that through their joint and their several negligence, acts of official negligence, and failures to perform official duties, the funds were lost, squandered, and stolen. Conspiracy is not charged, nor are specific losses traced to or charged as resulting from specific conduct.» It is admitted that different defendants performed and were charged with the duty of performing different duties. It is contended that there was a common duty to safeguard the funds and their investment, to see to it that they were not lost or misappropriated, which common duty would have been performed if the officers had performed their specific, designated duties; that the funds have been lost or misappropriated as a result of the breach or breaches of the specific, designated duty; and that the court should inquire into the specific conduct of each defendant and, as such conduct appears to have contributed to the result, hold each responsible.

As to the joint demurrer, it specifies that the bill is multifarious, and that the matters therein alleged may be tried and determined at law. The objection that the bill is multifarious is not ground for a general demurrer, and an appeal does not lie from an order overruling a special demurrer.

The second objection, namely, that actions should be begun at law, is disposed of against appellants by Flynn v. National Bank, 122 Mich. 642 (81 N. W. 572), and Fred Macey Co. v. Macey, 143 Mich. 138 (106 N. W. 722, 5 L. R. A. [N. S.] 1036). However likely it may seem to be that the proofs will not support the charge that all of the defendants failed in performance of their designated duties or support a decree against all of the appealing defendants, it cannot be said that there is no matter in the bill warranting equitable relief as to one or more of them. As was said in Flynn v. National Bank, supra, “we find it unnecessary to discuss the degree of negligence which will justify a court in holding ” officers of the society liable for losses.

Defendant Mortimer Willson alleges, in addition to reasons already considered, that all of the losses complained about occurred after he had ceased to be a member of the executive board of the supreme lodge, which was on or about April 20, 1906. We have called attention to the general nature of the charges in the bill. It is possible that with the books and records of the society in his possession the receiver ought to have been more specific in the charges, but we cannot say there was no actionable conduct on the part of officers, including this defendant, prior to the date given, and that no losses occurred prior to that time. We shall assume that at the hearing such order will be followed as will result in no unnecessary expense to any defendant.

The order appealed from is affirmed, with costs to complainant.

Steere, C. J., and Moore, MoAlvay, Brooke, and Stone, JJ., concurred. Kuhn and Bird, JJ., did notsit.


author: Brooke, J. Ostrander, J.

text:
    CROSS v. DAY.
    Brokers — Commissions—Contracts.
    Plaintiff, a broker, could recover commissions under a contract to pay him two per cent, commission if he should procure a purchaser through the agency of another broker, with whom plaintiff was associated and had listed the farm at a net price; the terms of the contract providing in substance as above stated were not ambiguous or uncertain or open to the construction that plaintiff must himself find a purchaser who would buy the land through the other agency.

       Ostrander and Stone, JJ., dissenting.
    Error to Genesee; Wisner, J.
    Submitted November 19, 1912.
    (Docket No. 110.)
    Decided January 3, 1913.
    Assumpsit by James L. Cross against Homer A. Day and Arthur G. Bishop for broker’s commissions. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Farley & Selby, for appellants.

      McFarlan & Wilson, for appellee.

       As to what constitutes listing of property or employment of broker within a contract promising a commission therefor in case the property is withdrawn or no sale made, see note in 24 L. R. A. (N. S.) 562.

   Brooke, J.

The record in this case conclusively shows that defendants’ farm was listed with the Hayes Agency through the instrumentality of plaintiff. Before defendants made either of the contracts, they knew that plaintiff was listing farms for S. V. R. Hayes. They likewise knew that plaintiff was in doubt as to his right to accept a commission from them, as well as a $50 fee from Hayes, in case the farm was sold. They knew that he wrote to Hayes for permission to accept such commission and got it, and they agreed to pay him 2 per cent, of the selling price if they sold their farm through Hayes at a price net to them. After this arrangement (not in writing) was made, plaintiff introduced the representative of Hayes to defendants, and that representative and defendants thereupon executed Exhibit B. Whether Exhibit A (the contract between plaintiff and defendants) was entered into immediately before or after the execution of Exhibit B is a matter of no consequence, as all the parties knew exactly what they were contracting about. All of them knew that during the life of the Hayes contract he alone had the right to sell the farm, unless it was sold by defendants themselves. All knew that the price named in the Hayes contract must be net to defendants, and that Hayes must make his commission by raising the selling price.

The farm was sold to a purchaser procured through Hayes for $60 per acre, and defendants paid Hayes the $2.50 per acre he had added to their price, as they had agreed to do in Exhibit B. They therefore have paid no commission whatever for the sale of the farm, but have received their full net selling price. I am unable to observe any ambiguity whatever in the contract Exhibit A. In it defendants agree to pay plaintiff 2 per cent, of the purchase price of the farm, provided he procures them a purchaser through the agency of S. V. R. Hayes within a certain limited period. He has procured a purchaser through Hayes, who bought defendants’ farm within the time limited, at the price ( net to them) specified in the contract Exhibit B. Why has he not earned his commission ? While I am of opinion that he would be entitled to recover under his contract if he had done no more than to list the farm with Hayes, thus setting in motion the efficient cause which resulted in a sale satisfactory to defendants, yet the record shows that he was not without influence in inducing Mr. Wilmot to purchase; indeed, that influence may have been a determining factor. I am of opinion that when the testimony was closed the plaintiff was entitled upon the admitted or undisputed facts to a directed verdict.

The judgment should stand affirmed.

Steere, O. J., and Moore, McAlvay, Kuhn, and Bird, JJ., concurred with Brooke, J.

Ostrander, J.

(dissenting). Plaintiff recovered a verdict and judgment in a suit upon the following contract:

“Flint, Michigan, April 2, 1909.
“I hereby agree to pay James L. Cross twó per cent, of the purchase price of my farm as commission, provided said James L. Cross procures me a purchaser for my farm, situate in the township of Richfield, containing 370 acres, through the agency of S. Y. R. Hayes, Grand Rapids, Michigan. Time limited for sale to December 15, 1909.
[Signed] “A. G. Bishop.
“ Homer A. Day.”

Defendants made another written agreement, here set out:

“Flint, Michigan.
“ S. Y. R. Hayes,
“ Grand Rapids, Michigan.
“We hereby give you the exclusive agency and authorize you to sell our farm in Genesee county, Michigan, described as follows: * * * For the sum of $57.50 per acre net to us on the following terms: One thousand dollars at the time of sale, one thousand dollars more when possession is given, balance in payments of two thousand or more each and every year with interest at 6 per cent. We agree that you shall add to our price whatsoever sum you may see fit for your services for making the sale and deducting such amount from the purchase price and turn over to us the balance, and we will not make a lower price on farm than you do to your customers during the life of this agency, nor will we put any obstacles in your way in your effort to make sale of farm. We agree to enter into a contract of sale with any person you may sell farm to at the time sale is made and when such purchaser has paid $10,000 we will then give him or her a warranty deed of said farm taking back a mortgage on the same for the unpaid balance of the purchase price, and payable not later than six years from date of mortgage.
“At the time you make the sale of the farm, or as soon thereafter as possible, not to exceed ten days, we will deliver to you or the buyer a complete abstract of title and tax history of said farm which shall show a perfect record title.
“We reserve the right to sell this herein described land, but to none of your customers and in case we do make a sale independent of you we agree to pay you two per cent, for your services except in selling to Mr. Bolán.
“This agency shall be in force and continue from this date up to and including December 15, 1909.
“ Dated at Flint, Michigan, this 2d day of April, 1909.
“Homer A. Day.
“A. G. Bishop.
“S. V. R. Hates.
“By J. F. Alward, Agent.”

A sale of the farm was made by Mr. Hayes, and was made effectual by conveyance of the farm by defendants to the purchaser. It was made before December 15, 1909. Plaintiff did not procure the purchaser. It is not pretended that he did. It is plaintiff’s theory that if a sale of the farm was made by or through the Hayes Agency he (plaintiff) was to receive a commission of 2 per cent, of the selling price. If this theory is supported by facts, then an examination of the two contracts discloses that if defendants themselves sold the farm they were to pay to Hayes 2 per cent, of the selling price (unless Bolán bought the farm); if the Hayes Agency sold it, Hayes was to have all he could get over the upset price per acre, and defendants were to pay plaintiff 2 per cent, of the purchase price. This would indicate an almost uncontrollable desire on the part' of defendants to place themselves in a position where they would have to pay some one 2 per cent, of the selling price of the farm if it should be sold.

Plaintiff says the main question in dispute is whether plaintiff was a mere middleman in bringing Day and Bishop and the Hayes Agency together, or whether he was an agent with full power to make sale. I do not so understand the record. The main, question is the proper construction of the contract sued upon. Defendants contended, and contend, that, by the terms of the contract, plaintiff, in order to earn his commission, was required to procure a purchaser for the farm. In two motions for a peremptory instruction a ground asserted was that it appeared that the plaintiff did not procure a purchaser for the farm through the agency of S. V. R. Hayes, of Grand Rapids, according to the terms of the contract. The court instructed the jury:

“ Now, that contract on its face shows a consideration, a valuable consideration, and is absolute, in the judgment of the court, and when the plaintiff, who has the burden of establishing his case by a preponderance of the evidence, introduces that contract in the case, has shown by a preponderance of the evidence that in pursuance of that contract he caused this farm to be listed with the Hayes Agency, that through the advertising inserted by the Hayes Agency in various papers throughout the country Mr. Wilmot, who lives down in the State of Illinois somewhere, saw the advertisement and came to Grand Rapids, and was by the Hayes Agency sent here and by Mr. Cross taken to the farm and its purchase in some degree urged upon him, and that afterwards the farm actually was sold to this Mr. Wilmot, whom the evidence shows was an entire stranger to the defendants in this case, then up to that point, and at that point, if there had been nothing further in the case, it would have been the duty of the court to have instructed you that you find a verdict in favor of the plaintiff.”

And further:

“ It is undisputed that the defendants, Bishop and Day, signed the contract, agreeing to give Mr. Cross a commission as provided in the contract. It is also undisputed that the land was sold to Wilmot before the Cross contract expired as to the time of performance, and that the commissions would amount to $425.50. If you find that Mr. Cross called the attention of the Hayes Agency to the Bishop and Day farm, and that they undertook the selling of the same, and that the Hayes agency procured Mr. Wilmot as a purchaser, and the farm was sold to Mr. Wilmot through the efforts of the Hayes agency, and you find that Mr. Cross had nothing to do with fixing the price that Bishop and Day were to receive for their farm, or the terms, then he is entitled to his commissions under the contract in evidence. I add:
“ ‘Unless you find in defendants’ favor under defendants’ fourth and fifth requests, which I will give you a little later.’ ”

It is plain, therefore, that the case was submitted to the jury upon plaintiff’s theory. In any event, plaintiff’s theory cannot survive a construction of the contract which requires plaintiff to do more than procure the farm, to be listed for sale by Hayes, or the Hayes Agency, if a sale was made by Hayes. If, therefore, plaintiff was required by his contract to do more than this, he has not performed, and should not recover the commission.

Whether the, words employed in the writing sued upon are themselves interpreted, or whether, treated as an ambiguous statement, they are interpreted in the light of surrounding circumstances, in either case they must, in my opinion, be given a meaning opposed to the plaintiff’s theory and contention. Considering the writing alone, some meaning must be given to the words “ providing said James L. Cross procures me a purchaser for my farm.” They are wholly unnecessary words if what was intended was that Cross was to be paid a commission if a sale was made through the Hayes Agency. To express that meaning and intention, the words above quoted might have been and presumably would have been omitted. The words quoted having been used, the writing imports that plaintiff was to procure a purchaser — was to interest himself to find a purchaser — who would, through Hayes, buy the farm. Considered in the light of all the circumstances, the same intention and meaning is, in my opinion, clearly made out. The facts known to all parties were these: Hayes paid for every farm listed with him and sold by him $50. This farm was listed with Hayes by Cross. That is to say, Cross informed Hayes of the fact that defendants had a farm for sale, leaving Hayes and defendants to make their own bargain. Cross expected to receive $50 from Hayes if Hayes sold the farm. As matter of fact, plaintiff has received the $50 from Hayes. Plaintiff says he did not know the terms of the arrangement made by Hayes and defendants. Whether he did or not is immaterial. The contract sued on imports that the farm was in the hands of Hayes for sale, upon some terms. Plaintiff and defendants knew it, and plaintiff’s contract, in effect, recites it. This being so, is it reasonable to suppose that, if Hayes sold the farm, defendants were to pay to plaintiff something more than $460 as a mere gratuity? We come again to the meaning of the words put into plaintiff’s contract and heretofore quoted. Defendants desired to sell their farm, and had fixed an upset and minimum price per acre which they were willing to accept. They bad so contracted with Hayes that he had the exclusive right to sell it. But if plaintiff would bestir himself and find a customer who would deal with Hayes — procure a buyer— they were willing to pay him a commission equal to the one they had agreed to pay Hayes if they (the defendants ) themselves found a buyer. This, it seems to me, is what the contract means. In this view the court was in error in refusing the peremptory instruction asked for by defendants. No other errors need be considered.

The judgment should be reversed, and no new trial granted.

Stone, J., concurred with Ostrander, J.