text:
    PIONEER FUEL CO. v. MOLLOY.
    1. Statutes— Amendment— Publication— Constitutional Law.
    Act No. 349, Local Aots 1897, purported by its title and enacting clause to amend section 15 of chapter 29 of the charter of the city of Gladstone, together with numerous other sections and chapters. By mistake, amendatory section 15 was published as a part of chapter 28, instead of chapter 29. The former chapter related to “finance and taxation;” the latter, to “the assessment and collection of taxes.” Held, that the error in publication did not render the section void as in contravention of section 25, art. 4, of the Constitution, providing that no law shall be amended by reference to its title only, but the sections amended shall be re-enacted and published at length.
    2. .Taxation — Collection—Replevin.
    If any part of a tax is legal, replevin will not lie for property seized to enforce its collection.
    3. Same — Validity op Assessment — Interstate Commerce.
    Thus, where an assessment was laid on a quantity of coal brought into the State, designed primarily for shipment to points outside the State, replevin would not lie for property seized to satisfy the tax, on the ground that the coal was the subject of interstate commerce, it appearing that some shipments had been made to points in Michigan.
    4. Same — Nonresidents —Assessment to Agent — Seizure op Property.
    1 Comp. Laws, § 3837, provides for the assessment of personal property of a nonresident to the person having control of the premises where it is located. Section 3847 provides that an assessment to one other than the owner shall show in what capacity the property is assessed to him. Property not belonging to plaintiff, a nonresident, was assessed to a certain person as plaintiff’s agent, and other property, belonging to plaintiff, was seized for the tax. Held, that, as the agent was personally liable for the tax, the seizure was unlawful.
    5. Same — Curative Provisions op Statute.*
    The provision of section 8922, that no tax shall be held invalid because the property was assessed without the name of the owner, or in the name of one other than the owner, could not validate such seizure; though, had the property seized been that assessed, or, possibly, had plaintiff owned the latter, such provision might have been invoked.
    6. Same — Replevin.
    Replevin will lie for property seized to satisfy a tax assessed against a third person.
    Error to Delta; Stone, J.
    Submitted April 24, 1902.
    (Docket No. 33.)
    Decided September 30, 1902.
    Replevin by the Pioneer Fuel Company against John Molloy, marshal of the city of Gladstone. From a judgment for defendant on verdict directed.by the court, plaintiff brings error.
    Reversed.

      Plaintiff contended that the provision of Act No. 349, Bocal Acts 1897, purporting to authorize the marshal of the city of Gladstone to collect taxes (section 15, page 206), was in violation of Const, art. 4, § 25, inasmuch as the title and enacting clause of said act indicated an intention to amend section 15 of chapter 29 of the charter, relating to “the assessment and collection of taxes,” while the section as amended was published as a part of chapter 28, entitled “Finance and Taxation.”
    G. R. Empson {I: C. Jennings, of counsel), for appellant.

      A. W. Wolfe (Cummiskey & Yelland, of counsel), for appellee.
   Montgomery, J.

This is an action of replevin for a quantity of coal, which was seized by the defendant, as marshal of the city of Gladstone, for a personal tax that had been assessed upon the roll of that city for the year 1900. The assessment is made to “J. M. Beattie, agent for the Pioneer Fuel Company.” The tax extended is $964.58. As the case stood at the close of the testimony, there was, in addition to the facts of the assessment and the seizure by the marshal, evidence that the coal, which was assessed in the manner above stated, was not the property of the plaintiff, but was the property of the Erie Railroad Company; that it was stored at Gladstone; that from time to time shipments were made from it, under a contract, to parties resident of Minnesota; but that shipments from this mass of coal were also made to residents of Michigan. At the close of the testimony, the circuit judge directed a verdict for the defendant for the amount of the tax, with interest. The plaintiff, by this appeal, presents four- questions: It is contended — First, that the marshal had no authority to make the levy, the warrant being directed to the city treasurer; second, that the property was not assessed to the plaintiff, but to Beattie, and •that the process is not process against the present plaintiff, but against Beattie, and that plaintiff’s property cannot, therefore, be seized; third, that the procedure under the tax law, being directed against the property of the plaintiff, who is a nonresident, and claims not to be the owner of the property assessed, is not due process of law; and, fourth, that the coal assessed was in transit, and the subject of interstate commerce.

As to the first question, it is conceded by plaintiff that, if the amendment incorporated by'Act No. 349 of the Local Acts of 1897, which purports to authorize the marshal to collect taxes, is legal, the proceedings are regular. Without discussing at length the criticism made upon this enactment, it will suffice to say that the act is not unconstitutional for the reasons urged, and that authority for this holding will be found in People v. Judge of Superior Court of Grand Rapids, 39 Mich. 195, Fort-St. Union Depot Co. v. Commissioner of Railroads, 118 Mich. 340 (76 N. W. 631), and Common Council of Detroit v. Schmid, 128 Mich. 379 (87 N. W. 383).

Under the showing made, we think, also, that the point that the assessment of this property is an interference with interstate commerce is without force. It appears that from this mass of coal shipments were being made to cities within the State, and, as the circuit judge rightly held, if any portion of the coal was assessable in the city of Gladstone, this action will not lie.

The question remains whether, under an assessment in form such as this, property of the present plaintiff could be seized, where the property assessed was not the property seized, and not the property of the present plaintiff. It is conceded in the brief of plaintiff’s counsel that, had the property actually assessed been seized, it would be immaterial in what name it was assessed. But it is contended that, the plaintiff being a nonresident of the State, and not in fact owning any property subject to the jurisdiction of the taxing officers, it is not due process of law against this plaintiff to assess property of a third party to plaintiff’s assumed agent, and then subject the plaintiff’s own property to the payment of the tax.

1 Comp. Laws, § 3837, provides for the assessment of property, under circumstances such as those existing in the present case, to the person having control of the premises, store, mill, dock, yard, piling ground, place of storage, or warehouse. Section 24 of the tax law (Id. § 3847) provides that assessments to one other than the owner shall show in what capacity it is assessed to him; and, as we held in Spanish River Lumber Co. v. City of Bay City, 113 Mich. 181 (71 N. W. 595), this section does not limit the authority conferred upon the assessing officer by section 3837, to assess property to the person having control. It is very clear that, under the authorities, the assessment to the person having control makes such.person personally responsible for the tax. See Forster v. Brown, 119 Mich. 86 (77 N. W. 646); Spanish River Lumber Co. v. City of Bay City, 113 Mich. 181 (71 N, W. 595); Township of Orion v. Axford, 112 Mich. 179 (70 N. W. 417); Minneapolis & Northern Elevator Co. v. Traill County, (N. Dak.) 82 N. W. 727, 50 L. R. A. 266; Lockwood v. Johnson, 106 Ill. 334.

This tax was, therefore, a valid tax against Mr. Beattie. Was it also a valid tax against the plaintiff? To determine this, we may ask, Against whom should suit have been brought to recover the tax? If brought against Beattie, we .think he could not have defended successfully upon the ground that he was described in the assessment as the agent of the Pioneer Fuel Company, if, as a matter of fact, he was the person having control of the property, as must be assumed from the assessment. We think it could not be said, therefore, that it was an assessment against the Pioneer Fuel Company, which would entitle the municipality to bring suit to recover the tax.

Reliance is had upon section 99 of the tax law (1 Comp. Laws, § 3922), which provides that no tax shall be held invalid on account of the property having been assessed without the name of the owner, or in the name of any person other than the owner, etc. This curative provision might be urged if the property assessed were that in controversy in the case, or, possibly, if the .plaintiff were shown to be the actual owner of the property assessed. But neither of these facts is conceded on the present record.

For a discussion of the question of when replevin will lie for property seized under a tax warrant, see Forster v. Brown, 119 Mich. 86 (77 N. W. 646). We think the present case comes within the line of cases there discussed, in which the property of plaintiff has been seized for a tax assessed against a third party.

It follows, from the views expressed, that the judgment of the circuit court must be reversed, and a new trial ordered. '

Hooker, C. J., Moore and Grant, JJ., concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    HARMON v. FELDHEIM.
    Bankruptcy — Preferences—Validity.
    An assignment of commercial paper, made by a firm of bankers, two weeks before they were adjudicated bankrupts, to secure a depositor, was sustained; it appearing to the satisfaction of the court that neither the beneficiary nor his agent had reasonable cause to believe, at the time of the assignment, that the assignors were insolvent.
    Appeal from Wayne; Donovan, J.
    Submitted June 5, 1902.
    (Docket No. 19.)
    Decided September 30, 1902.
    Bill by Henry A. Harmon, trustee of Albert Ives, Butler Ives, and Albert Ives, Jr., bankrupts, against Adolph Feldheim and Leo M. Butzel, trustee, to set aside an assignment of collateral as a preference under the bankruptcy law. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Albert, Butler, and Albert Ives, Jr., constituted the banking firm of Ives & Sons, which, at the time of the transactions complained of, had been engaged in business for more than 30 years. The firm had a fine commercial rating, and had enjoyed a good standing in commercial circles. Defendant Feldheim had been a depositor of the bank for five years. In July, 1900, he had three certificates of deposit, aggregating $37,000, and bearing interest at 4 per cent. Thirty days’ notice was required before he could draw the money. Desiring to make other investments, he gave the firm notice on July 7, 1900, that he would require $17,000 in 30 days. The firm informed defendant at the end of that time that they could not pay the amount just then, and he then placed the matter in the hands of his attorney, defendant Butzel. Mr. Butzel examined into the affairs of the bank, and consulted Mr. Don M. Dickinson, who was a depositor in the same bank, and had an intimate acquaintance with the members of the firm. Butzel and other members of his family were also at the same time large depositors. The result of the negotiations was the execution on August 38, 1900, of the following agreement:
    “ Whereas, A. Ives & Sons are desirous of borrowing the sum of twenty-five thousand dollars from said Adolph Feldheim; and
    “ Whereas, the said Adolph Feldheim has on deposit the sum of twenty-five thousand dollars in cash now due and payable and subject to present withdrawal in currency; and
    “ Whereas, the said Feldheim is willing to loan such sum to said A. Ives & Sons if satisfactorily secured concur rently with the making of said loan:
    “Now, therefore, in consideration of the loan of twenty-five thousand dollars to A. Ives & Sons by said Feldheim, and in consideration of the sum of one dollar paid to said firm by said Feldheim, and for the purpose of inducing the making of said loan, the said fjrm of A. Ives & Sons hereby convey, set over, assign, and pledge unto Leo M. Butzel, as trustee, a certain lot of commercial paper as collateral to said loan. (A list of said paper is hereto attached, and made part of this agreement, and all of said paper is now delivered to said trustee.) And the said first party-does further, in consideration of the premises, set over and assign to said trustee sufficient other good and collectible paper or securities belonging now or hereafter to belong to said first party, for the purpose of realizing unto said trustee sufficient moneys to pay unto said second party the aforesaid sum of twenty-live thousand dollars. The said trustee is authorized to make such selection.
    ‘' The said trustee, in consideration of the premises, and the sum of one dollar paid to him by each of said first and second parties, agrees to and with said parties as follows:
    “(1) He will retain possession of said paper, and upon the repayment to said second party by said first party will return the same to said first party: Provided, however, that said trustee may, in his discretion, deliver the manual possession of such portions of such paper as he shall deem fit to said first party, who shall, for him, collect and take all due steps necessary to the colléction of said paper, the said paper and the proceeds thereof to belong and be the property of said trustee under the terms and conditions of this agreement; and the said first parties agree to give a receipt upon the delivery of such paper to them, satisfactory in form to said trustee.
    “ (%) It is agreed between all the parties hereto that the period of said loan is $5,000 for three days from date, $5,000 for five days from date, $5,000 for five days from date, $5,000 for ten days from date, $5,000 for twenty days from date.
    “(3) It is agreed that the time of this loan may be extended, or said loan may be renewed, at the expiration of the aforesaid dates, upon the giving or the continuing of collateral satisfactory.
    “ (4) The said first parties may, upon the replacing of any paper by other satisfactory paper, repossess themselves of any particular paper during the period of this trust and of this loan.
    “(5) The said trustee shall keep the collateral where the said first party may, upon compliance with paragraph 4, easily and quickly exchange sáid paper.
    “ (6) In case of default by said first parties of any of the obligations by them agreed to herein, the said trustee is hereby vested with all the right, title, and interest in and to the said collateral that said first party has or may hereafter at any time have; and the said trustee is authorized to take any steps which, in his judgment, are necessary to protect said second party’s interests, and to use the name of said first party in such proceedings, and to declare the entire sum due forthwith.
    “(7) It is also understood and agreed that said first party also conveys to said trustee all property of every description, personal and real, which secures any of the paper trusteed herein; and upon demand of said trustee he shall be given, in case of default, manual possession of all the evidences of such property.
    “ (8) The said A. Ives & Sons agree to pay the aforesaid sums and interest accrued or to accrue, and to issue certificates of deposit therefor; and the said trustee is authorized upon said certificates of deposit to make any proper indorsements indicating this’agreement.
    “ (9) This agreement is to be kept absolutely secret.”
    Complainant, the trustee in bankruptcy, filed this bill in chancery to set aside this agreement and recover the securities mentioned therein. Issue was duly joined, proofs taken in open court, and the bill dismissed.

      Thomas A. E. Weadock, for complainant.

      Elliott O. Stevenson, for defendants.
   Grant, J.

(after stating the facts). Section 60 of the bankrupt act (subdivisions a and 6) reads as follows:

“(cf) A person shall be deemed to have given a preference if, being insolvent, he has procured or suffered a judgment to be entered against himself in favor of any person, or made a transfer of any of his property, and the effect of the enforcement of such judgment or transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class.
“(b) If a bankrupt shall have given a preference within four months before the filing of a petition, or after the filing of the petition and before the adjudication, and the person receiving it, or to be benefited thereby, or his agent acting therein, shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value from such person.” 30 U. S. Stat. p. 562.

The sole question presented is: Did Mr. Feldheim and his attorney, Mr. Butzel, acting for him, have reasonable cause to believe that Ives & Sons were insolvent, and made the assignment with intent thereby to give a preference ? The court below, in a written opinion, found that they did not. In this finding we concur. We deem it unimportant to set forth the evidence upon which the finding is based. It would not form a precedent of any value to the profession. We are satisfied that Ives & Sons did not at the time of the assignment contemplate bankruptcy, and that both defendants had no information which led them to believe, or which should have caused them to believe, that the firm was insolvent. All the suspicious features of the contract are fully explained by the testimony.

The decree is affirmed, with costs.

Hooker, C. J., Moore and Montgomery, JJ., concurred.


author: Moore, J.

text:
    PEOPLE v. PAYNE.
    1. Seduction — Evidence.
    In a prosecution for seduction, evidence that prosecutrix’s mother was insane, and that her father had not cared for her since she was 14 years old, was improperly admitted, but, being merely preliminary, did nob, of itself, constitute ground for a reversal.
    3. Same.
    Subsequent acts of intercourse cannot be shown on a trial for seduction.
    3. Same — Cross-Examination op Prosecutrix.
    In a prosecution for seduction, where the proof of the charge made depended almost wholly on the testimony of the prosecutrix, and she testified that the act of intercourse relied on occurred between 11 and 12 o’clock p. m., but admitted on cross-examination that she had testified on the preliminary examination that it occurred at about 9:30 p. m., and that such testimony was false, an objection to a question as to why she had given such former false testimony was erroneously sustained.

      L Trial — Conduct of Counsel.
    Where, notwithstanding repeated rulings of the trial court, counsel continues to put questions in an objectionable form, he cannot complain if he is somewhat severely reprimanded.
    5. Same — Seduction—Adverse Witness — Surprise.
    Where respondent’s counsel in a prosecution for seduction called a witness to show that he had sustained illicit relations with prosecutrix prior to the alleged seduction, but the witness denied that he had done so, counsel was entitled to examine the witness with a view to showing that he had previously made a different statement to counsel; not as a matter of substantive proof, but merely to show the jury why the witness had been called, that respondent might not be , prejudiced.
    6. Saííe — Improper Remarks of Prosecutor.
    Statements by the prosecuting attorney in his address to the jury in a prosecution for seduction, characterizing the mode of defense as “brutal, cowardly, and contemptible,” charging respondent's counsel with falsifying, and with having “raked the purlieus of hell ” for evidence against prosecutrix, commenting on the superlative villiany of respondent and the extreme baseness of his crime, and suggesting that, if prosecutrix had a father or a brother, there would have been no occasion for a trial, were erroneously permitted, and ground for a reversal.

      7. Same.
    In a prosecution for seduction, in which respondent had not testified, the prosecuting attorney said in his argument that no one saw what occurred at the time of the alleged seduction except prosecutrix, respondent, and the allseeing eye of God, and that prosecutrix had told her story, and there was not a word to prove that it was untrue. Held, to constitute a reference to respondent’s failure to testify, not permissible under 3 Comp. Laws, § 10211.
    8. Seduction — Information—Time of Offense.
    An information for seduction charged the offense to have been committed on October 22d. The prosecutrix had testified before the examining magistrate that it occurred on that date, but had also fixed the time as the first time she had intercourse with respondent, and on the date when they attended a certain entertainment. An investigation disclosed that this entertainment was on September 22d, and on the trial prosecutrix testified that the seduction was on that date. Held, that it was not error to permit a conviction as for an offense committed on September 22d.
    Exceptions before judgment from Muskegon; Russell, J.
    Submitted June 5, 1902.
    (Docket No. 97.)
    Decided September 30, 1902.
    Charles Payne was convicted of seduction.
    Reversed.

      Dan T. Chamberlain, for appellant.

      Charles B. Cross, Prosecuting Attorney, and George S. Lovelace, Assistant Prosecuting Attorney, for the people.
   Moore, J.

The respondent was convicted of the crime of seduction. He has brought the case here on exceptions before judgment. The errors assigned may be grouped: First, errors in the admission and rejection of testimony; second, the language, conduct, and instructions of the trial judge; third, the language of the prosecuting attorney upon the trial and in his address to the jury. We have considered all the assignments of error, but will discuss only part of them.

The prosecution were allowed to show that prosecutrix’s mother was insane, and her father did not care for her after she was 14 years of age. This testimony might well have been omitted, but, as it was preliminary simply, we fhould not be inclined to reverse the case if there were no other errors in it.

The information'charged the offense to have been committed October 22d. The testimony showed it was committed September 22d. After this testimony was given, the people were allowed to show acts of intercourse in November and December, and that pregnancy resulted therefrom. This was contrary to the rule laid down in People v. Clark, 33 Mich. 112; Boyce v. People, 55 N. Y. 644.

The complaining witness was examined in the court below. In the circuit court she testified that the intercourse occurred between 11 and 13 o’clock. On her cross-examination she admitted that she testified in the court below that the intercourse occurred about half past 9 o’clock, and that it was not true. She was then asked, “Then why did you tell it?” The circuit judge sustained an objection to this question. The proof of the charge made against the respondent depended almost wholly upon the testimony of the complaining witness. The respondent was entitled to whatever benefit might be derived from a proper cross-examination, and we think he was entitled to an answer to this question.

Complaint is made of the attitude of the judge towards respondent’s counsel. The record discloses a situation •that must have been very unpleasant. There had been repeated rulings in relation to a type of questions. , It is difficult to believe counsel did not know how to frame the question so it would be unobjectionable, and it is also apparent he studiously avoided doing so. Under the circumstances we are not inclined to criticise the action of the judge towards counsel about which complaint is made.

Counsel called a witness for the purpose of showing that complaining witness had sustained illicit relations with him, and was not chaste when it is claimed respondent seduced her. Instead of the witness testifying to the illicit relations, he denied they had occurred. Counsel claimed to be surprised, and sought to show that witness had made a different statement to counsel before he was called as a witness. He was not allowed to do this. The authorities are not agreed as to the rule, but we think the weight of the authority is that he might examine the witness upon the point to which his attention was directed. 3 Taylor, Ev. (9th Ed.) p. 97830; 2 Best, Ev. (1st Am. Ed.) p. 1080; 1 Greenl. Ev. (16th Ed.) p. 565; Webber v. Jackson, 79 Mich. 175 (44 N. W. 591, 19 Am. St. Rep. 165). Counsel ought to have been allowed to show by the witness, if he could, that the witness had made a different statement; not as substantive proof, but as explaining why he had called him, so that the jury should not be prejudiced by his having done so.

The record discloses that intense feeling was shown by the attorneys upon both sides. The argument of counsel for respondent does not appear. That of the assistant prosecuting attorney does. In the course of his argument he used the following language:

“ It has been my good fortune to participate in the trial of many causes, to be in the court-room and see many causes tried; but I want to tell you that never in my experience have I sat in the court-room and seen the brutal, cowardly, and contemptible defense that has been made in this case.
Mr. Chamberlain: I take an exception to that statement. Does the court think that is proper ?
‘ ‘ The Court: I don’t know whether it is or not.
Mr. Lovelace: And I will prove it to you, gentlemen of the jury. * * * I say that because a man is hired to defend a man charged with crime he has a right to use all the legal means to acquit his client; he has no right to stand here in the court-room and dispute the decisions of the court; he has no right to stand here in the court-room, and, without any foundation whatever, knowingly and willfully stand before a jury and state what he knows is not so.
“Mr. Chamberlain: I will take an exception to that statement.
Mr. Lovelace: He has no right to rake the purlieus of hell for evidence against a woman, and, when he finds that he cannot do it, to stand before you and tell that the witnesses for whose credibility he vouches are perjurers. That may be the ethics of the legal profession in some States; it is not in the State of Michigan. * * * Why, it is only at this term of court that some of your members sitting upon this jury sent a man to State’s prison because he had broken into a store and stolen a couple of pairs of pants; and yet shall this man, who has broken into a woman’s life, and filched from it all that makes her life worth living, and cast her out to be the scorn of the community, to go on perhaps down the road to hell itself, and abandoned her—
Mr. Chamberlain: Take an exception to this statement.
“Mr. Lovelace: Shall he go unwhipped of justice? Why, there is no more comparison between the two crimes than there is between light and darkness. * * * Why, I sat here in the court-room the other day, and I saw that poor unfortunate girl as she sat there in that stand, her eyes streaming with tears, as she told the story of her downfall. Was it any wonder ? She was detailing that which cast her out from society, that marked her as distinctive from our wives and daughters, that rendered her an outcast in society, so that, if she came to your door or mine, it would be closed against her. Tears, wasn’t it ? Ánd I saw this noble young man sit there with a smile playing about his lips.
“Mr. Chamberlain: I object to that.
‘ ‘ Mr. Lovelace: Glorying in the ruin he had done.
“Mr. Chamberlain: I take an exception to the statement. * * *
“Mr. Lovelace: That kind of business won’t be tolerated in any decent community. It won’t be tolerated in this community. Why, we know that in some portions of this country this man wouldn’t be here being tried today; and I want to say to you that if this girl had a father—
“Mr. Chamberlain: An exception.
Mr. Lovelace: Or a brother, he wouldn’t be here being tried today, because, if he had not repaired the wrong that he had done, he would have made a good place to sink a lead shaft; and I believe that that, as it is carried on in the Southern States, is a protection to the virtue of women. When a man realizes that he cannot trespass upon the rights of others unless he takes his life in his hands, he is going to watch out.
“Mr. Chamberlain: The testimony in this case is that she has got a father, your honor. The counsel is not within the testimony.
“Mr. Lovelace: If I don’t keep any nearer the testimony than you do, I will quit the argument right off.
“Mr. Chamberlain: I will take an exception to that statement, too.
“Mr. Lovelace: I am going to prove it to you before I get done. I will show you that both this Mr. Chamberlain and Mr. Turner have not come within 40 rows of apple trees of telling the testimony. * * * My brother can quibble all he wants to; he can get up here and falsify the testimony; but it never will change the facts.
‘ ‘ Mr. Chamberlain: I take an exception to that statement. ”

While a great deal of latitude should be given to counsel, we think the excerpts from the argument we have given are objectionable, and come within People v. Lange, 90 Mich. 454 (51 N. W. 534); People v. Cahoon, 88 Mich. 456 (50 N. W. 384); and the cases cited therein.

The respondent was not called as a witness. In his argument the assistant prosecuting attorney said:

“Now, wasn’t this girl seduced? What is the testimony ? Where is the testimony that says she was not ? There wasn’t anybody that saw what occurred there except this girl, this boy, and the allseeing eye of God. The girl has told you her story, and from the beginning to the end of this case there is not a word to prove that she didn’t tell exactly what occurred.”

Section 103.11 of the Compiled Laws provides ‘ ‘ that the defendant in any criminal case shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.” We think there is much force in the claim of counsel that “the only possible result of this kind of remarks was to direct the attention of the jury particularly to the fact that the respondent had not testified at all in, contradiction of the girl. It could mean and did mean nothing else.”

We now come to the errors assigned in relation to the charge of the court. The court called the attention of the jury to the fact that the information charged the offense to have occurred October 33d; that the proof disclosed the seduction occurred, if it occurred at all, September 33d; and that, having put in proof as to the date, they were bound by it; and said: “As I say, if the evidence does not show you, beyond all reasonable and fair doubt, that Rosa Pierce was seduced on the 33d of September, your verdict will be ‘Not guilty.’” It is true that, before the magistrate, the complaining witness fixed the time as being Saturday evening, October 22d, but she also fixed it as being the first time she had intercourse with the respondent ; that it was in the dining room of the house where she was employed, and was in the evening, after she had attended a certain show at the opera-house. It was disclosed that the witness was mistaken as to the date, but not as to the occurrence; that the date when she attended the show was September 22d, instead of October 22d. The case is very unlike People v. Bressler, ante, 390 (91 N. W. 639). The charge was a guarded one and a proper one.

For the errors we have pointed out, the conviction is reversed, and a new trial ordered.

Hooker, O. J., and Montgomery, J., concurred with Moore, J. Grant, J., concurred in the result.


text:
    ANDERSON v. BESSER.
    1. Trover — Cutting Timber —Good Faith — Evidence — Tax Deeds.
    In trover for timber out from plaintiff’s land, tax deeds issued to defendant under the recent laws prescribing a method of foreclosure in chancery are admissible as evidence of good' faith, though their invalidity is conceded.
    a. Same.
    In such case, the deeds being prima facie valid, it is not incumbent on defendant to introduce the anterior proceedings.
    3. Same — Measure of Damages.
    'One from whose land timber has been cut without authority has his choice of four remedies, viz., trespass guare clausum,
      replevin, assumpsit (under 3 Comp. Laws, § 11207), and trover; but, if he brings trover, he waives the other remedies, and must be content with the rule of damages applicable to that form of action.
    4. Same.
    Where defendant cut timber from plaintiff’s land in good faith, under belief of title, and removed it to the railroad and sold it, the measure of damages, in an action of trover therefor, was the market value of the logs at the place of sale, less the reasonable cost of cutting and hauling. Winchester v. Craig, 33 Mich. 205, followed.
    Error to Alpena; Emerick, J.
    Submitted June 6, 1902.
    (Docket No. 32.)
    Decided September 30, 1902.
    Trover by John W. Anderson, receiver of the estate of Charles L. Ortman, against Herman Besser. From a judgment for plaintiff for less than the amount claimed, he brings error.
    Affirmed.
    Plaintiff was the owner in fee of certain timber lands. The defendant cut and removed therefrom the timber, and hauled the same to the railroad track, where he sold it. Plaintiff brought this action of trover to recover the value of the timber so cut and removed. It was conceded upon the trial that plaintiff owned the land, that defendant had no right to cut and remove the timber, and that plaintiff was entitled to recover its value. As evidence of good faith, the defendant introduced in evidence certain tax deeds for delinquent taxes for the years 1889, 1890, and 1892, which were conceded to be void. The sole purpose of their introduction was to mitigate damages. The proceedings leading up to the sale were not introduced in evidence. The defendant testified that he consulted counsel, who advised him that the tax deeds were valid. He did not disclose who the counsel were. The court instructed the jury that, if they found that the defendant cut the timber thinking in good faith that he owned the land through his tax deeds, then the fair measure of damages would be the market value of the logs at the point where ■they were sold by the defendant, less what it was fairly worth to put the logs there. The court afterwards said to ■the jury:
    “If you find that the defendant cut it in good faith,[ you should give the plaintiff all that the timber was fairly! worth on the stump, together with such profit as he might J have made in removing it to the railroad.”
    He also instructed them-that, if the trespass was will-1 ful, the measure of damages would be what the logs were! worth at the railroad, with interest from the time they! were delivered. The jury evidently found that the defendant acted in good faith.

      Henry K. Gustin and Charles B. Henry, for appellant.

      Joseph H. Cobb (James Francis, of counsel), for appellee.

      But see Dawson v. Peter, 119 Mich. 274 (77 N. W. 997).

   Grant, J.

(after stating the facts). 1. Two objections were made to the admission of the tax deeds in evidence: (1) That they were not evidence of good faith; and, (3) if they were admissible for that purpose, it was incumbent upon the defendant to introduce all the proceedings upon which such deeds were based.

In support of the first objection, counsel cite and rely upon Winchester v. Craig, 33 Mich. 205. The language used by Mr. Justice Marston at page 333, in which he says, “ It is a notorious fact that tax deeds are almost universally upon examination found to be invalid, on account of defects not appearing upon the face of the deed,” etc., was not necessary to the decision of the case. The proceedings prior to the issuing of the tax deed by the State were at that time entirely ex parte. Since that decision was rendered, new tax laws have been enacted, which provide for suits in chancery in the nature of foreclosure to -determine the validity of the tax proceedings. The courts pass upon their validity before sales are decreed. Every taxpayer is thus afforded an opportunity to be heard before his land is sold and deed issued, and has little cause for complaint if he fails to either pay his tax or contest its validity in court. The statement made in that case by the learned justice was undoubtedly correct, but it cannot apply to tax deeds obtained under the procedure now required by the law. We think, therefore, that the tax deeds and the proceedings prior thereto were admissible as evidence of good faith.

Neither do we think the second objection well taken. The statute makes tax deeds prima facie valid. The presumption, as already stated, is in favor of the validity of the chancery proceedings tahen, .prior to decree and sale. The burden was upon the plaintiff to show a fatal irregularity, if any existed. This he failed to do.

2. The next question relates to the measure of damages. Plaintiff now seeks to obtain the value of the timber at the railroad, without any deduction for the cost of cutting and removing it to the railroad. Upon the trial he requested the court to instruct the jury as follows:

‘ ‘ If you find that the defendant cut the timber thinking in good faith that he owned the timber through his tax titles, then the fair measure of damages would be the market value of the logs at the point where they were sold by the defendant, less the amount paid by Mr. Besser to put them on the track, with interest from the date they were placed on the railroad track until the present time. In determining the market value of the logs at the track, the amount for which the defendant sold the logs, of which the timber from the land in question formed a part, should be considered by you.”

This request was given, with the modification that they should deduct “what it was fairly worth, or what it would fairly cost,, to put the logs upon the track.” In closing his instructions the court said:

“"But, to sum it all up, you should give the plaintiff, if you find that the defendant, as I have instructed you, acted in good faith in this matter, under his tax titles, all that the timber was fairly worth on the stump on the land in question, together with such profit as he might have made in removing it to the place where it was landed, and then sold at the fair market value for tl|e logs at that-place.” ■ -

Four actions were open to plaintiff: (1) Trespass quare clausum fregit; (2) replevin; (3) assumpsit, under section 11207, 3 Comp. Laws; (4) trover. In an action of trespass he would recover all damage to the freehold, including the value of the timber removed. In replevin he would recover the property in its changed state, unless the defendant had obtained title by accession under the rule of Wetherbee v. Green, 22 Mich. 311 (7 Am. Rep. 653). In an action of assumpsit he would recover the value of the timber, but upon what basis such value should be determined seems never to have been before the court, and we refrain from expressing an opinion. By bringing an action of trover, these other remedies are waived, and the rule of damages in trover must apply. The general rule in trover is that the plaintiff is entitled to recover the value of the property converted. Difficulties in applying this rule have arisen where the defendant has added to the value of the property converted by his own labor and expense, and where he has obtained possession by fraud or willful wrong, and where his acts were casual and involuntary. The decisions upon the measure of damages where trespasses have been committed, and timber, coal, and other materials have been severed from the realty and converted, are not harmonious and cannot be reconciled. Where the trespass was not intentional, and the manufactured property is worth 27 times the standing timber, the unintentional trespasser obtains title by accession. Wetherbee v. Green, supra; Carpenter v. Lingenfelter, 32 L. R. A. 422, and note (s. c., 42 Neb. 728, 60 N. W. 1022). In applying this doctrine the facts in each particular case must govern. See Isle Royale Mining Co. v. Hertin, 37 Mich. 332 (26 Am. Rep. 520), where it was held that the property was not so increased in value in its changed state as to justify the application of the rule of title by accession.

Plaintiff relies upon Grant v. Smith, 26 Mich. 201. The reasoning of that case is not easily reconcilable with Winchester v. Craig, supra, decided four years later. Three of the justices who decided Grant v. Smith also participated in the decision in Winchester v. Craig, and two of them approved the opinion. It was there held, in an exhaustive opinion, that, in the absence of fraud, violence, or willful negligence or wrong, the proper measure of damages, as a general rule, in trover, is such sum as will afford compensation for the actual injury sustained. The rule in Grant v. Smith would apply in cases of willful trespasses, and the opinion in Winchester v. Craig in effect so holds, for it says that, with the tax deed rejected,t there was nothing tending to show that defendant acted other than as a willful trespasser. Winchester v. Craig has been frequently cited with approval by this and other courts, and states the rule which is sustained by the clear weight of authority. It is cited in Bolles Wooden-Ware Co. v. U. S., 106 U. S. 432 (1 Sup. Ct. 398), where the rule for assessing damages in such cases is held to be: (1) Where defendant is a willful trespasser, the full value of the property at the time and place of demand or of suit brought, with no deduction for his labor and expense; (2) where he is an unintentional or mistaken trespasser, or an innocent vendee from such trespasser, the value at the time of conversion, less the amount which' he and his vendor have added to its value; (3)- where he is a purchaser, without notice of wrong, from a willful trespasser, the value at the time of such purchase. See, also, Ayres v. Hubbard, 57. Mich. 322 (23 N. W. 829, 58 Am. Rep. 361); Id., 71 Mich. 594 (40 N. W. 10); Gates v. Boom Co., 70 Mich. 311 (38 N. W. 245); Bailey v. Railway Co., 19 L. R. A. 653, and note (s. c., 3 S. Dak. 531, 54 N. W. 596); Whiting v. Adams, 66 Vt. 679 (30 Atl. 32, 25 L. R. A. 598, 44 Am. St. Rep. 875).

Judgment affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred.


text:
    HOLMES v. FOSS.
    Brokers — Commissions — Contracts— Modification — Questions for Jury — Instructions.
    Whether a contract for the payment of commissions on the purchase of certain timber was made as claimed by plaintiff, and, if so, whether it was modified by the subsequent correspondence and conduct of the parties, held, under the evidence, to have been proper questions for the jury, and to have been submitted under proper instructions. (
    Error to Marquette; Stone, J.
    Submitted April 25, 1902.
    (Docket No. 5.)
    Decided September 30, 1902.

      Assumpsit by David H. Holmes against Edgar B. Foss for commissions on the purchase of certain timber. From a j u dgment for plaintiff, defendant brings error.
    Affirmed.

      A. B. Eldredge (Simonson, Gillett & Clark, of counsel), for appellant.

      Button & Culver (Clark & Pearl, of counsel), for appellee.
   Moore, J.

The plaintiff recovered a judgment of $3,053.46 against defendant. The case is brought here by writ of error. The questions involved so clearly appear in the charge of the court to the jury that We reproduce it here:

‘ ‘ Gentlemen, this is a suit brought by the plaintiff, Mr. Holmes, against the defendant, Mr. Foss, in which the plaintiff claims a certain commission to be due him of 3 per cent, upon the purchase price by said defendant of the Michigan Land & Iron Company, Limited, of certain pine timber that has been detailed before you. It is undisputed in the evidence, gentlemen, that this pine timber was sold finally to the defendant, Foss, for the sum of $64,900. The plaintiff claims a commission upon the sale of 3 per cent., which would amount to $1,947. If there was ever a duty upon the defendant to pay this sum, it is fair to say that the duty devolved upon the defendant as early as November 1, 1899. You may add 13 months’ interest, or $105.46, if you find for the plaintiff, to that sum, making a total of $2,052.46, which, should you find for the plaintiff, must be the maximum of the verdict, or the limit. In fact, that is the sum that is claimed by the plaintiff. If the plaintiff is entitled to recover at your hands at all, he is entitled to recover that sum. If he is not entitled to recover that sum, he is not entitled to recover anything.
“ Now, gentlemen, in this case bear in mind that, so far as establishing the contract is concerned and the showing of the breach thereof, the duty rests upon the plaintiff. The plaintiff must have a preponderance of evidence in the case showing you that the contract was made as he alleges it to have been made; that there was an absolute promise made by the defendant to pay him the sum of 3 per cent, upon the purchase price of the timber in question, provided it was purchased by the defendant. That it was eventually purchased by the defendant is not disputed; but it is disputed that the defendant ever made such a contract.
“Now, gentlemen, to come a little nearer to the case, the plaintiff claims that he met the defendant on the 26th of June, 1899, on the arrival of the train from St. Ignace. It is undisputed that prior to that time, running back a month or two before that time, Mr. Holmes, the plaintiff, had performed some service for Mr. Foss, the defendant, in the matter of looking over an alleged trespass in the vicinity of Au Train, for which he had rendered his bill, and which had been paid; and also there had been some negotiations between them before that time in reference to a sale to the defendant by Mr. Holmes of what is termed seven 40’s of pine that Mr. Holmes owned or had an interest in, and the land looker of Mr. Foss (the defendant), Mr. Kaiser, had been with Mr. Holmes upon the seven 40’s prior to the arrival of Mr. Foss in this city on the 26th of June, 1899. That far the evidence is undisputed. What occurred upon the arrival of Mr. Foss in this city upon that date is disputed. The plaintiff claims that upon being informed by Mr. Foss something in regard to the seven 40’s, or the conversation arising upon that subject first, he then calls his attention to other lands that had valuable timber upon that he was interested in, and claims that he mentioned to him certain pine owned by the Michigan Land & Iron Company, and went with him to the office of the Michigan Land & Iron Company, and there, in the presence of Mr. Stevens, the subject was discussed of the proposed purchase by Mr. Foss from the Michigan Land & Iron Company of certain pine. Now, gentlemen, he further claims that, leaving Mr. Foss there, an arrangement was made by the defendant that he was to meet him at the office of the Hotel Marquette in the evening. It is further claimed by the plaintiff that, having spent a great deal of valuable time in estimating and looking over this property, he was advised in regard to it, and he did meet Mr. Foss that evening at the hotel, and, after certain conversation with reference to the lands and the character of the timber, — the location of the land and the character of the'timber, — stating to him that it was good, big timber, or words to that effect, along the line that it was valuable timber, that the question is asked by Mr. Foss of him,
“ What will be your commission upon the purchase of this?’ and he said, Five per cent, of the purchase price; ’ that the defendant says, ‘That is too much; I won’t pay it.’ Plaintiff then claims that he stated, ‘ What will you pay?’ And he said, ‘Three per cent.’ And he claims that he responded, ‘I will accept it.’ Now, gentlemen, the plaintiff claims the bargain was made then and there; that they then sat down and went over the subject of these lands with a map; that the lands were pointed out, the way in which the timber would come out best was explained, and that then and there the minds of the parties met upon the contract.
“Now, gentlemen, this is the claim of the plaintiff. Was there such a contract made ? Look over the evidence bearing upon the subject. There is a square denial of it by the defendant. The defendant claims that the bargain there made was substantially as stated in the letter of July 16th, which probably should be the 18th, and he claims that the proposition was that he would give him 3 per cent., provided this timber should be purchased upon a satisfactory estimate to him at $5 per thousand stumpage. The burden of proof is upon the plaintiff to establish the making of this bargain in the first instance. Was there such a bargain made as is claimed here by the plaintiff ? You are to look at all the surrounding circumstances. You may look at the subsequent conduct of the parties. Bring to bear all the evidence upon this subject, — those who were present, and state what the bargain was upon that evening. If you shall say, by a preponderance of the evidence, that this contract was made as claimed by the plaintiff; that he, having imparted this information, which he claims he imparted, to Mr. Foss, that he had been with him to the Michigan Land & Iron Company’s office and had introduced the subject of this land td him, — then, gentlemen, if there is any change claimed in this contract, it devolves upon the defendant to show that change.
“ Now, there are two branches to this. If you shall say there is no preponderance of evidence in favor of the plaintiff that any such contract was ever made, then, of course, the plaintiff cannot recover here, and your verdict should be for the defendant. But, if you shall find that there was made such a contract as is claimed by the plaintiff, then you should not cease your inquiry, but then should say, was it subsequently modified, by the letter written by Mr. Foss, and the subsequent action and conduct of the parties? There I think the burden is upon the defendant. It shifts upon him to show the change in the contract, if you find it once established; but, if not established in the first instance, the plaintiff canno't recover.
“ Certain requests have been passed to me, gentlemen, some of which I give you:
“The burden of proof is upon the plaintiff to make out his case; and, if you find the evidence equally balanced, you must find a verdict of no cause of action. You understand, gentlemen, when parties come into court, and before any evidence is introduced, the scales are even, upon the subject of evidence. Now, the evidence has been put in the scale on the part of the plaintiff. Evidence has been put in on the part of the defendant. To establish and make out the plaintiff’s case, there must be a preponderance of evidence, so that it outweighs the evidence upon the other side; and if, at the close of all the evidence in the case upon this proposition and the making out of his. case, the evidence is equally balanced, then there would be no preponderance, would there F The scale would not preponderate in favor of the plaintiff; and there must be a preponderance of evidence before the • plaintiff can recover.
“In determining the weight of the evidence, you should take into consideration the conduct of the plaintiff, and that from time to time he presented accounts to the defendant for looking this and other lands for him; that the timber of the Michigan Land & Iron Company was bought September 12, 1899, — that is, the written contract was on that date; I think the evidence shows the purchase was closed a few days earlier, about the 1st of the month; that the plaintiff made no claim for commission until some time in October or November, — the plaintiff claims, at the time the contract was made by Stickney & Johnson with Mr. Foss, which was in October or November, and that he then called his attention to this subject-matter of commissions. That, however, is denied by the defendant; but you may consider that he made no claim for commission at least until October or November, and has never as yet presented a bill for the claim he seeks to recover in this case. No formal bill has ever been presented, gentlemen. It has been urged to you that he had presented bills for his services, and that they had been paid, but that no formal bill was ever presented in this case. It is true that he wrote him on the subject in December; but he has never as yet presented a bill for the claim he seeks to recover in this case. That he presented his last bill November 21, 1899, for services, and in all his communications up to October or November made no reference to commissions on the purchase. You must also take into consideration the manner, in which he called defendant’s attention to his claim in his letter to the defendant of December 4th, and the language used, and the amount of his demand.
“Now, gentlemen, in that connection I will call your attention to the letter of July 16th or 18th, written by the defendant to the plaintiff. If you shall find that the contract was made as claimed by the plaintiff in this case, then you should ask yourselves, under the evidence in the case, has that contract ever been changed? In the letter of July 16th— Now, you will bear in mind that it is claimed that this contract was made June 26th (20 days before the 16th, and 22 days before the 18th, of July; for this letter was written upon the 18th); that, 22 days after it is claimed by the plaintiff that this contract was made, this letter was written:
“ D. H. Holmes,
“ ‘ Marquette, Mich.
"‘Dear Sir: Yours of the 17th is at hand,’ etc. ‘If you can assist us in buying this timber on a satisfactory estimate to us at $5 per thousand stumpage, we will pay you a commission of 3 per cent., as talked with you while the writer was at Marquette. We are willing to have the Michigan Land & Iron Company put a man in the woods with Mr. Kaiser, they to agree on an estimate. Please see what you can do in regard to this, and let us hear from you. It may not be necessary to tell them that our man is out of the woods. Please let us hear from you by return mail, and oblige,
“ ‘Yours,
“ ‘E. B. Foss & Co.’
“Now, gentlemen, the plaintiff claims that such was not the agreement made. The plaintiff claims the agreement was, as I have already stated, an absolute agreement. The defendant claims that the agreement stated in this letter was substantially the agreement made on the 26th. But, as I say to you, if you find that the plaintiff is wrong, has not by a preponderance of evidence established his contract in the first instance, then he cannot recover ; for, gentlemen, this timber was not sold at $5 per thousand stumpage, on an estimate to the defendant that was satisfactory. It was purchased upon an estimate of about 9,000,000 feet, which, at $5 per thousand, would be $45,000; but, instead of that, the defendant paid nearly $20,000 more than that. But, if you should find that the defendant is wrong in claiming this change from the contract made on the 26th, and if you should further find that the plaintiff had not entered upon the performance of his contract— And that involves, what was he to do under the contract, gentlemen ? That is why I have called your attention to the claim of the plaintiff that he possessed this information; that he imparted this information to the defendant; that he accompanied him to the Michigan Land & Iron Company’s office, and put him in communication with that company; and that he gave him the information in the evening at the hotel. If you shall say that he did this, and that this was a part performance on his part, then the. writing of this letter to the plaintiff could not change a contract then existing, without the plaintiff’s consent. But if you should say that he gave him none of this information; that Mr. Foss, under the evidence, had all this information before; that he merely had a conversation with him about this land and timber, which information he already possessed, so that the plaintiff had not entered at all upon the performance of the contract when this letter was written, then it might operate as a modification of the contract, if the contract was still executory; and it depends upon the facts in this case as to whether the contract was then executory. But if you should say, even, that it had been part performed by Mr. Holmes, then you should look further, and see as to the conduct of the defendant subsequently in their dealings.
“ The immediate answer to that letter is bearing date July 19th, in which Mr. Holmes says to the defendant, addressing him:
“ ‘E. B. Foss, . '
“ ‘Bay City, Mich.
‘Dear Sir: Your letter received today, with check for $30, payment in full for labor. Much obliged for same. I think it advisable to have Kaiser come back and go on lands as soon as possible, as I have not told the Michigan Land & Iron Company that he is o£E the land. I have been expecting a letter from you. I would instruct Mr. Kaiser to go over these lands very carefully, for it is a rough country, and woods thick, and a man is apt to overlook a good deal of timber unless he estimates carefully. It is also advisable to estimate burnt timber, and keep it separate from the other. I think it better to stay away from the Michigan Land & Iron Company until your man is back on the land. Then you can write for an extension of option, and in all probability you will get it. Then I will go to them and do all I possibly can to aid you in making the purchase. I think, when they know the condition of the timber, they will come down on their price. You had better wire me when your man leaves there.
“ ‘ Yours very truly,
“‘D. H. Holmes.’
Now, gentlemen, you see that in that letter nothing is said by Mr. Holmes upon the subject of his commission. He says nothing to him about it. If you find that the facts are as Mr. Holmes claims them; that he had imparted this information, and had set Mr. Foss in communication with the Michigan Land & Iron Company, and had told him his knowledge of this timber, and that the contract was made as Mr. Holmes claims it was made; that he himself had procured the option; that he had got a man to go into the woods, and had been with them there, although he was-paid for that service; if you shall say he had entered upon the performance of this contract, this mere silence upon this subject would not defeat his right to recover here. But you may consider his conduct there upon the subject. The delay of the plaintiff in making his claim for commissions for some time, or months, after the purchase of defendant of the lands or timber in question, is a strong circumstance to be considered by you in determining the weight to be given to his testimony. You have a right to consider the conduct of Mr. Holmes in this regard. You have a right to consider how he had dealt with Mr. Foss before; that the service performed by him, —whether he had been prompt in sending his bills or not, and whether he had been tardy in sending this bill. You have a right to consider this delay as conclusive against the plaintiff, if you are satisfied that the claim he now makes was an afterthought, and that he made no such agreement with the defendant at Marquette as he now claims. And, gontlemen, this conduct of the parties should be looked at with a view to aiding you as to what the agreement was at the Hotel Marquette on the 26th of June. But, of course, if you shall say that it was an afterthought on the part of the plaintiff, that no such agreement was ever made as he contends for here, then there could be no recovery in this case.
“Now, gentlemen, speaking of these agreements, they might be modified. They might have modified this agreement, even if it was made and established at the hotel on the 26th. It might be modified by consent of the parties, and changed. Even if a verbal agreement was made between the parties at Marquette, if, any time before the complete performance of the same, a new agreement was made, inconsistent with such former agreement, such former agreement was discharged, and plaintiff can recover only upon such new agreement. Now, that is, if their minds met upon a new agreement. Look at the conduct of Mr. Holmes. Did he assent to this proposition, contained in the letter of July 18th, either expressly or tacitly, by his conduct ? If so assenting to that proposition, he cannot recover here; because the evidence is undisputed that the timber was not obtained at $5 per thousand, upon an estimate to the defendant that was satisfactory to him. The parties had a right to change or discharge any agreement made by them by a subsequent mutual agreement; and, if you find any such change or discharge to have been made in this case, the plaintiff can recover only upon the final agreement. Now, mind you, the parties had a right to change or discharge any agreement made by them by subsequent mutual agreement; not simply by an assertion by the defendant in that letter to him, but by an agreement of minds coming together and agreeing upon it. And that agreement might be evidenced .by express language, or by conduct on the part of the plaintiff. But, gentlemen, if the contract was made, as Mr. Holmes claims it was, on the evening of the 26th ■of June, then the writing to him by the defendant of this letter of July 18th, or any other letter, after the plaintiff had entered upon the performance of the contract, could not change the contract. For the plaintiff had a right to say, ‘ My terms are fixed with you, and upon that I stand.’ But if his conduct was such, by his silence, as to mislead the defendant into this, into his subsequent action, another rule would apply, which I will call your attention to. If a verbal contract was made between the parties, as claimed, at Marquette, and a subsequent agreement made between them, by letter or otherwise, — that is, a meeting of their minds, — changing the terms upon which commissions were to be paid to the plaintiff, such verbal agreement was to this extent modified and canceled, even if no change was made in any of the other terms of the contract. The intention of the parties to change or discharge the original contract need not be formally expressed, but may be evidenced by their conduct.
“If you find, from the evidence, that the plaintiff had done nothing in pursuance of the verbal agreement or offer made by the defendant at Marquette, before the receipt by him of defendant’s letter of July 18, 1899, the plaintiff cannot recover, as the defendant had a right, before the plaintiff had done anything in pursuance of such understanding or offer, to withdraw or modify the ■same, which was done by letter of that date. I have already said to you that it was shown by a preponderance of evidence, as claimed by plaintiff, that the services consisted largely of imparting information which Mr. Foss had not at the time, putting him in communication with them, and then showing him maps and giving him the information at the hotel; and, if you find that to be the fact, it could not be said that the plaintiff had not entered upon the contract. But, if he had done nothing in pursu-# anee of it, if he had not imparted any information, and the contract was executory, to be performed in the future by both parties, then it might be modified by the defendant before the parties commenced performance.
“It appears from the testimony of the defendant and Walter Foss that in January, 1900, they met the plaintiff in Marquette; that plaintiff then made a claim against the defendant for commissions on the purchase of the timber in question; that in the course of this conversation he said to the defendant that he had promised to pay him a commission of 8 per cent, on this purchase, and that he had a letter from the defendant to show it, and regardless of the price that defendant was to pay for the timber. If you find this testimony to be true, — that is, the testimony of defendant and Walter Foss, — it is a strong circumstance to be taken into consideration by you, going to show that plaintiff then relied on defendant’s letter of July 18, 1899, as the basis of his right to recover against the defendant, and that he neither claimed nor had any demand or right of action against the defendant, except such as might be based upon the terms of said letter.
“The letter of the plaintiff, dated July 19th, in answer to defendant’s letter of July 18th, does not in express terms accept defendant’s offer of commission as contained in defendant’s letter to him. In determining, however, whether it was intended as an acceptance, or is to be construed as such, you must take into consideration the conversation testified to by the defendant and Walter Foss; that the plaintiff has never presented a bill for his claim in this suit; that he allowed months to pass before he said anything in regard to it; the language of his letter of December 4, 1899, to defendant; his conduct in assisting in making the purchase, and saying nothing in regard to his claim, and making no claim against defendant for his commissions until a long time after the purchase; and all the circumstances of the case. How long a tfme was it, gentlemen, before he made his claim? That is a question of fact, asserted by the plaintiff and denied by the defendant. The plaintiff asserts that he made the claim in October or November, as I have already said, at the time the Stickney & Johnson contract was made with Mr. Foss; that Mr. Foss was here, and he made the claim. That would be within two months, gentlemen, — within a month and a half, — of the date of that contract. That would not be an unreasonable time to wait, gentlemen. But did he make his claim then? It is denied by the defendant. It is a question of fact for you to consider. His conduct, I say, in regard to it, is for you. Then, from the circumstances of the case, if you find that the defendant had a right to, and did, treat or consider the plaintiff’s letter to him of July 19, 1899, as an acceptance of his offer of commissions on the basis stated in the defendant’s letter of July 18, 1899, and that he had a right to, and did, consider, from all the circumstances in the case, that plaintiff had thereby accepted his offer, if the defendant relied thereon to his prejudice, then the plaintiff is estopped from now making any claim against the defendant except upon the terms and conditions contained in these letters, and, under the evidence and pleadings in the case, cannot recover. Now, that is, gentlemen, if, by his conduct, his silence in the letter back, his answer back, his silence upon that subject, and then his subsequent conduct. If you shall say that his conduct was such as would lead a prudent man to believe that- — as Mr. Foss, believe that — Mr. Holmes had accepted his proposition, in his conduct, etc., as to lead Mr. Foss on to pay a larger price than he otherwise would have paid for this timber,-then the plaintiff ought not to recover, upon the ground of estoppel. The doctrine is a familiar one in the books that when a person, by his words or conduct, voluntarily causes another to believe in the existence of a certain state of things, and thereby induces him to act on that belief, so as to change his previous condition, the person inducing such belief will be estopped from afterwards denying the existence of such a state of things, to the prejudice of the person so acting. If a pei’son knowingly and voluntarily so conducts himself in relation to his business as to justify persons dealing with him in supposing and believing that a certain state of facts exists, and such person so dealing with him relies on that inference and belief, the person so conducting himself will not afterwards be permitted to deny that such state of facts did exist, to the prejudice of the person acting upon such belief.
‘ ‘ Although you may find from the evidence that there was an understanding had between the parties at Marquette for commissions, as claimed by plaintiff, yet you may still find that the plaintiff cannot recover, as the parties had a right to change or modify any such understanding; and if you find that it was intended by the letters of July 18th and July 19th to change such understanding, or that these letters do change it, or are inconsistent with it so far as it affects the payment of commissions, and' that the defendant had a right, under the circumstances in the case and the conduct of the plaintiff, to consider that such verbal agreement was changed by these letters and conduct, then the plaintiff cannot recover under the evidence and pleadings in the case.
“Now, gentlemen, I have substantially covered the case. I will give you one other request, and then explain what I mean by it. In arriving at your conclusion as to what the true arrangement or agreement between the parties was, you will consider the letters passing between the parties, namely, the letter of the defendant of July 18th, dated in error July 16th, and the reply of the plaintiff, dated July 19th. They are entitled to special attention from you, as being in writing. You will consider Whether, if the defendant’s letter did' not correctly state the true arrangement, the plaintiff would not have called attention to the misstatement, and whether it was not his duty to have called his attention to it, under all the circumstances in the case. The plaintiff said nothing, you remember, upon that branch of the subject. Would he have been apt to have said anything, gentlemen, if he believed it did not state correctly the correct position ? As I say to you, if the contract had been made, and plaintiff’s position is the true one in this case, and he had entered upon the performance of it, he was not obliged to. If not, he should have said something about it, or his silence would be taken as assenting, acquiescing in it, if it was still executory.
“I call your attention to the letter of December 4th, and I ought to read it to you. It refers to other matters. First, the letter of Mr. Holmes, because I have called your attention to the manner in which he presented his claim at that time. Perhaps I had better read it all :
“ 'Marquette, Dec. 4, 1899.
“ ‘E. B. Foss,
“‘Bay City.
“ ‘ Dear Sir: Just returned from the woods, and find your letter here, and check for 850, payment in full for labor. Thanks for same. I went to see L. P. Crary about the land.’
“ I don’t know as it is necessary to read all that letter. It is one of considerable length, and I will pass down to the other subjects: .
“ ‘Would also be glad if you would advise me about the settle, ment of commissions on Michigan Land & Iron Company trade. Three per cent, on purchase price was agreed upon, you know. I leave tonight for 10 days in the woods. Hope to hear from you on .. my return. Yours truly,
“ ‘D. H. Holmes.’
“ Now, gentlemen, I have spent some time in this matter, as I frequently do when I always say I will be brief. But now let us recapitulate, and leave this matter with you.
‘ ‘ In the first place, to establish the contract and services as claimed by the plaintiff here, he must show them by a preponderance of the evidence; and if he does not show that the contract was made at the Marquette Hotel as he claims, and under the circumstances he claims, and with the preliminaries as he claims them leading up to it, — I mean as to his getting Mr. Foss in communication and imparting the information, — then the plaintiff cannot recover, unless he establishes this contract by a preponderance of the evidence in this case. If he does establish that contract by a preponderance of evidence in the case, then he cannot recover, providing the defendant has shown by a preponderance of evidence that this contract has been modified or changed in the respect ' claimed, to wit, limiting the commissions to 3 per cent, in case the purchase was made upon a scale satisfactory to the defendant, at $5 per thousand. * * *
Mr. Button: There is one piece of testimony in the •case, uncontradicted, as I remember it, which is entirely lost sight of by the counsel for the defendant in their requests to charge, and that is, a meeting between the parties in this case, and the conversation, subsequent to the letters of July 18th and 19th, namely, the meeting at the depot on the 3d or 4th of August, at which time, I say, according to my recollection, the evidence is undisputed, the plaintiff told the defendant that it would be impossible ’ to buy the timber at $5 a thousand stumpage, and that the defendant then replied, ‘Well, go on and see what you can do.’ I think your honor should, and so request that your honor, charge the jury that they may find that conversation to be a giving up by the defendant of any ■condition they might consider was annexed to the letter of July 18th.
The Court: The jury will consider that evidence in connection with the other evidence, and say whether it is entitled to any weight, and, if so, give it such weight as in their judgment they think it is entitled to, under all the circumstances in the case.”

We are favored with very long and able briefs in the case. Among other things claimed by the defendant is that the letters of July 18th and July 19th constitute the contract between the parties, and are conclusive, and a judgment ought to be entered here in favor of defendant. The pivotal question in the case is one of fact. Was the agreement made as claimed by plaintiff ? Or is tbe claim of tbe defendant the true one? The plaintiff and the defendant contradict each other. Mr. Grarry corroborates the testimony of the plaintiff; Mr. Farrell, the testimony of the defendant. Mr. Stevens also corroborates his testimony. Mr. Stevens’ cross-examination shows he-testified differently on the first trial. He explains how he' came to do so. It is said the rendering of his accounts, and the receipts of payments thereof, by Mr. Holmes, and his delay in claiming commissions, corroborate the version of defendant. On the* other hand, it is said commissions were claimed at the first opportunity after the plaintiff learned of the purchase; that, when the claim was made in the letter of December 4th, defendant, instead of saying no commission had been earned, as he would have done if the claim of plaintiff was not true, replied under date of December 8th:

“The writer expects to be in Marquette in a short time,, and will arrange in regard to that piece of timber of yours, and also talk to you about the other matter referred to in your letter. ' The writer finds his desk so full of papers that require his attention that he is unable to write further at this time.”

And that in January the following correspondence occurred:

“Marquette, Mich., Jan. 23, 1900.
“Mr. E. B. Foss,
“Bay City, Mich.
Dear Sir: Lawyer Miller has come to the conclusion that the title of timber in section 4 — 49—27 is all right, and I have instructed bank to send deed and draft to Bay City. If you decide to send me a check at any time before you come here outside of this deal, I will give you credit for it on Michigan Land Iron deal commission. * * * Yours truly,
“ D. H. Holmes.”
“Feb. 2, 1900.
Mr. D. H. Holmes,
“Marquette, Mich.
“Dear Sir: The writer has been away from home several days. The draft for the Danaher timber was paid some days ago. The first time the writer is in Marquette he will see you. Tours truly,
“E. B. Foss & Co.”

We think it will readily be seen that the record presents controverted questions of fact, which weré proper to submit to the jury. Without discussing the several questions presented by counsel, we shall content ourselves by saying we think the case was fairly tried, and submitted to the jury with proper instructions as to the law. .

Judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


author: Montgomery, J.

text:
    ESTEY v. CAPITOL INVESTMENT, BUILDING & LOAN ASSOCIATION.

    1. Building and Loan Associations — Interest—Usury.
    2 Comp. Laws, § 7584, providing that no premiums, fines, nor interest on premiums accruing to a building and loan association organized under the act of which said section is a part shall be deemed usurious, does not extend to a specific reservation of interest on a loan, and, if the same exceeds the rate prescribed by the general statute, the contract is usurious.

    2. Same — Premiums—How Payable.
    Under 2 Comp. Laws, § 7581, providing that the premium bid by a borrowing stockholder in a building and loan association may be deducted from the loan in one amount, or may be paid in installments, such premium need not be a definite sum, but may be a continuing premium of a stated per cent, on the loan.
    3. Interest — Usury—Application op Payments.
    Under 2 Comp. Laws, §§ 4857, 4858, providing that the court shall declare void the interest reserved by a usurious contract, and that the debtor shall not be compelled to pa/ any interest, money paid specifically as interest under a usurious contract, should be applied.on the principal.
    Appeal from Shiawassee; Smith, J.
    Submitted February 18, 1902.
    (Docket No. 47.)
    Decided October 7, 1902.
    Bill by David M. Estey against the Capitol Investment, Building & Loan Association to restrain the foreclosure of a mortgage. From a decree for defendant, complainant appeals.
    Reversed.

      Holland J. Cleland (Knappen & Kleinhans, of counsel), for complainant.

      Cahill & Wood (Hollin H. Person, of counsel), for defendant.

      Rehearing denied January 5, 1903.

       For usury in loans by building and loan associations, see note to Reeve v. Ladies’ Building Ass’n, (Ark.) 18 L. R. A. 129.

   Montgomery, J.

The complainant filed a bill to restrain the foreclosure of a mortgage given to defendant to secure the repayment of $1,500, advanced to complainant in accordance with the terms of the defendant’s bylaws. These by-laws provided for the payment, monthly, of $18, to be applied as follows: . Installments on stock, $4.50; interest (75 cents per month on each $100), $11.25; premium (15 cents per month on each $100), $2.25.

It is apparent that the contract was usurious, unless it can be treated as one authorized by law, and exempted from the usury laws. An elaborate argument is made to show that the contract by complainant was not essentially a loan, but a purchase of stock, and that, therefore, the usury law does not apply.

This court has recognized the dual relation of a borrowing stockholder, — i. e., that a stockholder may be a borrower, — and that the two relations are in a sense separate and distinct. Phelps v. Loan Ass’n, 121 Mich. 343 (80 N. W. 120); Russell v. Pierce, 121 Mich. 211 (80 N. W. 118); Myers v. Building Ass’n, 117 Mich. 389 (75 N. W. 944). In the case last cited we distinctly held that, to entitle these associations to the privilege of charging more than the rate of interest fixed by the general laws of the State, they must comply with the provisions of the law under which they are organized. In the present case there can be no doubt that the defendant*exacted an interest in excess of the 8 per cent, per annum, which was the highest rate authorized to be reserved by the statute in force when the contract in question was made. The contract reserved 9 per cent, per annum as interest, and 14-5 per cent, as premium, so called.

Section 7581, 2 Comp. Laws, provides for competitive bidding by proposed borrowers, and authorizes a premium bid in open meeting to be secured. And section 7584 provides :

“Corporations organized under this act being of the nature of co-operative associations, therefore no premium, fines, nor interest on such premiums that may accrue to the said corporation, according to the provisions of this act, shall be deemed usurious, and the same may be collected as other debts of like amount may be collected by law in this State. ”

It will be seen that this section does not exempt a reservation of interest, as such, from the general usury statute, but only premium and interest on such premium. It is clear, therefore, that in exacting interest at 9 per cent, the company exceeded the authority of the statute, and that the contract was usurious.

The statute (2 Comp. Laws, § 7581) provides for awarding loans to the stockholder who shall bid the highest premium for priority, and further provides:

‘ ‘ The said premium bid may be deducted from loan in one amount, or may be paid in such proportional amounts or installments, and at such times during the existence of the shares of stock borrowed upon, as may be designated by the by-laws of the respective associations. ”

It is contended that, under this statute, the premium bid must be a definite suui, payable either in gross or in installments for a stated period. The case of Mechanics’, etc., Bldg. Ass’n v. Wilcox, 24 Conn. 147, is cited to sustain this contention, and in its reasoning goes far towards doing so; but in that case no such statute as ours was under consideration. In Cantwell v. Welch, 187 Ill. 275 (58 N. E. 414), the supreme court of Illinois sustained a contract for premium like the present under a statute like ours. We think a bid of a premium of a stated per cent, is authorized by this statute. It is true it may not be known in such case just what the aggregate of the premium may be; but, on the other hand, if a stated sum be bid as premium, it is not known what rate per cent, this will amount to, for it cannot be known when the stock will mature. Requiring a bid of a definite per cent, affords no greater opportunity for deception or oppression in making a contract of this character than does a requirement of a bid in gross.

It is also contended that the premium bid was not binding, for the reason that competitive bidding was not allowed. The complainant testifies that he understood that there was such a system as bidding for priority of rights, and we are not satisfied that he did not understand that he was free to bid' according to his judgment, or that he understood that his bid would not be considered if less than 20 cents per share. Indeed, if he knew that there was a sys-: tern of competitive bidding, the presumption is that he knew that the board was bound to accept the best bid given, whatever it might be.

But, as the express reservation of 9 per cent, interest was illegal, it tainted the contract. What is the complainant’s remedy? It is claimed that all' payments made should be applied on principal, and that, on payment of the balance of the principal, the mortgage should be discharged. On' the other hand, it is contended that money paid as interest cannot be recovered back. This question was discussed by Mr. Justice Long in Fretz v. Murray, 118 Mich. 302 (76 N. W. 495). In that case it was held that, where payments were made upon a usurious contract without designation, they should be applied in extinguishment of the lawful debt, — i. e., the principal; but the court found it unnecessary to decide whether payments made on the contract as interest should be applied in reduction of the principal. The case of Fowler v. Trust Co., 141 U. S. 384 (12 Sup. Ct. 1), was cited, holding that the payments shall be so applied. We are satisfied with the reasoning of that case, and hold that, where it is sought to enforce a contract which was usurious at its inception, in so much as our statute provides that the court shall declare the interest void (section 4858), and that the debtor shall not be compelled to pay interest (section 4857), the recovery should be limited to the principal sum, less payments actually made, however designated at the time of payment. This is the only rule which effectuates the intent of the statute. Bateman v. Blake, 81 Mich. 227 (45 N. W. 831); Martin v. Building Ass’n, 2 Cold. 418; Moore v. Beaman, 111 N. C. 328 (16 S. E. 177); Borrowers’, etc., Bldg. Ass’n v. Eklund, 190 Ill. 257 (60 N. E. 521, 52 L. R. A. 637).

The decree will be reversed, and a decree entered in accordance with this opinion.

Hooker, C. J., Moore and Grant, JJ., concurred.


text:
    KAISER v. DETROIT & NORTHWESTERN RAILWAY.
    Street Railways — Construction of Road —Excavations — Negligence.
    In an action against a street-railway company for injuries-received by falling into a cut made by it in the traveled portion of a public highway to accommodate its tracks, and left by it unguarded, it was error to direct a verdict for defendant on the ground that plaintiff had failed to show that it was acting without authority in constructing its road in such manner i the company being at least prima facie bound to restore the highway to a safe condition, — in other words, it not being presumable that the local authorities would authorise the-creation of a nuisance.
    Error to Wayne; .Hosmer, J.
    Submitted April 10, 1902.
    (Docket No. 67.)
    Decided October 7, 1902.
    Case by Herman Kaiser against the Detroit & Northwestern Railway for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Washington I. Robinson and J. Walter Dohany, for appellant.

      Thomas A. E. Weadock, for appellee.
   Montgomery, J.

The declaration averred that the defendant railway tore up and excavated the highway known as “ Grand River Avenue,” making a ditch or hole in the traveled way, and left the same unprotected, and that plaintiff, while riding with one Conroy, was thrown upon the track of defendant’s railway because of the wheel of the vehicle dropping into the ditch.

The evidence tended to show that the defendant’s track occupied a portion of a 16-foot traveled way, and that the space occupied by the track had been cut down 16 or 18 inches; that, in the evening, plaintiff was driving with Conroy, and the wheel dropped down into this excavation. Plaintiff was thrown from the wagon, rendered unconscious, and was afterwards, while in this unconscious state, injured by the defendant’s passing car.

The circuit judge directed a verdict for defendant on the ground that plaintiff had not shown that the defendant railway was acting without authority in constructing its road in the manner in which it did. We think this was error. The defendant company was at least prima facie bound to restore the surface of the street to a condition reasonably safe for travel. 2 Thomp. Neg. § 1354; Maltby v. Railway Co., 52 Mich. 108 (17 N. W. 717); Jeffrey v. Railroad Co., 108 Mich. 221 (65 N. W. 755, 31 L. R. A. 170); People v. Railroad Co., 67 Ill. 118; Woodman v. Railroad Co., 149 Mass. 335 (21 N. E. 482, 4 L. R. A. 213, 14 Am. St. Rep. 427); Inhabitants of Veazie v. Railroad Co., 49 Me. 119; Schild v. Railroad Co., 133 N. Y. 446 (31 N. E. 327, 28 Am. St. Rep. 658); Booth, St. Ry. Law, §§ 290, 291. True, if the defendant constructed its railway as directed by the municipal authorities, acting within the powers conferred upon them, no negligence could be imputed to it. 2 Thomp. Neg. § 1364. But it is not to be presumed that authority to create a nuisanee was granted, and we are of the opinion that the burden of showing such authority rested with defendant. McKillop v. Railway Co., 53 Minn. 532 (55 N. W. 739).

It is contended that the testimony shows negligence of the driver. This question was not ruled by the circuit judge, and need not be discussed further than to say that we do not think such negligence conclusively appears.

Judgment reversed, and a new trial ordered.

Hooker, O. J., Moore and Grant, JJ., concurred.


text:
    CUTTER v. WAIT.
    1. Vendor and Vendee — Removal of Buildings — Replevin.
    Tlie vendor in a land contract may maintain replevin for a house built on the premises by the vendee, and afterwards removed by him, upon the theory that, while the title to the house was not changed by the removal, it might thenceforth be regarded as personalty.
    2. Same — Eraud—Evidence—Title to Lands.
    In such action, evidence as to the title to the premises, offered in support of the defense that defendant was induced to enter into the contract by the false representations of plaintiff as to his title, is admissible, as against an objection that title to realty cannot be tried in an action of replevin.
    3. Same — Rescission of Contract — Improvements.
    One who has been induced to enter into a contract for the purchase of land by the false representations of the vendor has a right, on rescission therefor, to place himself in statu quo by . removing the improvements made on .the premises, so far as it can be done without injury to the freehold remaining.
    Error to Van Burén; Carr, J.
    Submitted April 11, 1902.
    (Docket No. 74.)
    Decided October 7, 1902.
    Replevin by Frank Cutter against Dan Wait and Elijah L. Green. From a judgment for plaintiff, defendants bring error.
    Reversed.

      W. J. Barnard and Lincoln H. Titus, for appellants.

      Thomas J. Cavanaugh, for appellee.
   Montgomery, J.

This is an action of replevin for a house built by the defendants upon land held by them under a contract of purchase, the plaintiff being the vendor named in the contract. The defendants removed the house from the land contracted for, and plaintiff, claiming that the house, when built, became a part of the realty, and that the legal title vested in him, and that by a severance of the house from the lands the title remained unchanged, but that the house might thenceforth be treated as personalty, brought replevin. He was allowed to recover upon this theory, and there can be no doubt of his right to maintain the action, unless there was in the defense proffered a question which should have been submitted to the jury. Michigan Mut. Life-Ins. Co. v. Cronk, 93 Mich. 49 (52 N. W. 1035).

The defense urged was 'that the defendants were induced to enter into the content of purchase by false and fraudulent representations of the plaintiff as to the state of his title, and defendants contended that they had the right to rescind the contract, and remove the building from the premises. The circuit judge held, however, that it was not competent to try the title to real estate in an action of replevin. We do not so understand the rule of law. True, replevin will not lie for real property, but it is not rare that the title to personal property is determined by an inquiry as to its ownership at a time when it was a part of the realty. Cases where such an inquiry has been entered upon without question are not infrequent. Huron Land Co. v. Robarge, 128 Mich. 686 (87 N. W. 1032); Wells, Repl. § 5.

It is contended by plaintiff’s counsel that there was no evidence of fraud in this case. We are not prepared to hold that the record is wholly devoid of testimony which a jury might construe as intentional misstatements as to the state of the title. If such intentional misstatements wore made, and were materially false, it was competent for the defendants to rescind the contract; and this involved the right to place themselves in statu quo, so far as it conld be clone without injury to the freehold remaining.

The judgment will be reversed, and a new trial ordered.

Hooker, O. J., Moore and Grant, JJ., concurred. ,