text:
    HARMON v. PARKER.
    1. Master and Servant — Contracts—Evidence.
    In a suit for compensation for plaintiff’s services as a carpenter, evidence that several checks used to pay him his salary were those of a corporation of which defendant was an officer was properly limited by the charge of the court to. proof of payment, under the testimony of plaintiff, not contradicted, that the checks were received by his wife and that he had never seen them, nor did he know by whom they were drawn.
    2. Same — Evidence—Intent.
    And at the trial, it was proper to exclude testimony in reply to the interrogatory of defendant whether he made the bargain in the capacity of an officer or as an individual; the fact should be established by the conversation of the parties and surrounding circumstances, not by the conclusion of the witness.
    3. Same — Principal and Agent.
    It is the duty of the agent, if he would avoid personal liability, to disclose his agency. Nor is it sufficient that the other party has the means of ascertaining the name of the principal. The agent must either bring home to him actual knowledge, or that which to a reasonable man is equivalent to knowledge, or the agent will be bound, and if he does not do so he may be held personally responsible upon the presumption that he so intended.
    4. Same — Trial—Contracts, Parties to — Corporations.
    Where- the issue was whether, in hiring the plaintiff as a carpenter, the defendant was dealing as an individual or as a corporate officer, and the attorney for defendant requested the court to charge that if, at the time, plain- • tiff knew defendant was acting in a representative capacity, only, and not in his individual capacity, there would be no necessity of disclosing the alleged agency, etc., the request, which was a correct statement of the law, and might very well have been granted by the court, was sufficiently covered by a general charge that if plaintiff had it in mind he was not hired by, or was not to look to, defendant for his pay, the bargain was made with the corporation, and by further instructions of a general • character and of similar tenor.
    Error to Muskegon; Sullivan, J.
    Submitted June 13, 1916.
    (Docket No. 76.)
    Decided December 21, 1916.
    Assumpsit in justice’s court by Willis W. Harmon against Harrison M. Parker for work and labor performed. There was judgment for plaintiff and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Cross, Vanderwerp, Foote & Ross, for appellant.

      Sutherland, Johnson & Sessions, for appellee.
   Person, J.

This is an action to recover a balance of $116.91 due to plaintiff for his labor as a carpenter. It is admitted that he rendered the services charged for, and that he is entitled to receive the amount claimed. Nor is it denied that he was employed by defendant. The only ultimate issue at the trial was: Whether plaintiff was employed-by defendant acting in his individual capacity, or by him as an officer and agent for a certain company known as “the Fruitvale Company.”

•The work for which plaintiff claims judgment was performed by him at Fruitvale, in this State, and there is evidence tending to show that it was actually performed for the company, but the contract of employment was made in Chicago, where plaintiff resides. The defendant is an officer of several companies, and transacts a large portion, at least, of his business in Chicago. The arrangement for plaintiff’s employment was made at the office of the Fruitvale Company in the Hearst Building. Plaintiff requested defendant to give him work at Fruitvale, and the terms of the employment were agreed upon. This was towards the last of November, 1914, and plaintiff continued to work under the agreement from the 31st of that month to May 1, 1915. His work, in all, came to $249.91, and he acknowledged various payments to the amount of $133, leaving the aforesaid balance unpaid. This suit was begun in justice’s court, where plaintiff recovered. Judgment was again given in his favor in the circuit court, and defendant brings the case here upon writ of error.

Defendant insists that in hiring plaintiff he was acting for the company, and that this was known to and understood by the plaintiff. It is not shown that the Fruitvale Company was expressly mentioned at the time of the employment, but, aside from the fact that the contract was made in the office of that company, evidence was given tending to prove that plaintiff had worked at Fruitvale in 1912 for the Fruitvale Land-Developing Company, of which defendant was an officer; that defendant at the time of the employment furnished plaintiff with report blanks headed “The Fruitvale Company”; that plaintiff was paid from time to time for his present services by checks of the Fruitvale Company or of the Fruitvale Transportation Company; and that he receipted for the last payment received, which was in money, by a receipt running to the Fruitvale Company. There was, perhaps, other evidence tending to . show that his services were rendered for the Fruitvale Company. On the other hand, plaintiff testified that he supposed defendant owned personally a portion of the property at Fruitvale, and insists that the contract for services was made by him with the defendant as an individual, and not as officer of any company. The jury, as we have said, accepted plaintiff’s theory of the hiring.

Defendant offered in evidence ten checks used in making the payments to plaintiff. Nine of these were checks of the Fruitvale Transportation Company, and one was a check of the Fruitvale Company, and all were drawn to plaintiff’s order. Plaintiff admitted that these were checks by which he had been paid, but testified that they were received by his wife in Chicago while he was at Fruitvale, and that he had never seen them before. His testimony was not contradicted, and, while the checks were received in evidence, the court limited their effect to proof of payment. In this defendant thinks the court erred, and that he should have been permitted to use the checks for the purpose of showing that the company had received the benefit of plaintiff’s services, and that plaintiff was hired for and by the company. Inasmuch as plaintiff had never seen the checks and did not know by whom they were drawn, we think the court was right in the limitation imposed upon their use.

During the course of the trial the following question was asked defendant by his counsel:

“And when you made the bargain with him and you said, T will do so and so,’ were you speaking as an individual or speaking as an officer of the company?”

The answer was excluded upon the theory that the fact inquired after should be shown by the conversation of the parties and surrounding circumstances, and not by any unexpressed -intent of the witness. There was no error in this.

The rule governing situations like the one disclosed in this case is thus stated in Mechem on Agency (2d Ed.), § 1413:

“The duty rests upon the agent, if he would avoid personal liability, to disclose his agency, and not upon others to discover it. It is not, therefore, enough that the other party has the means of ascertaining the name of the principal; the agent must either bring to him actual knowledge, or, what is the same thing, that which to a reasonable man is equivalent to knowledge or the agent will be bound. There is no hardship to the agent in this rule, as he always has it in his power to relieve himself from personal liability by fully disclosing his principal and contracting only in the latter’s name. If he does not do this, it may well be presumed that he intended to make himself personally responsible.”

The .instructions given by the court to the jury were substantially in accord with the foregoing rule, and we do not think that the language used should be considered objectionable.

The court was requested by counsel for defendant to give the following instruction:

ff£I£ at the time the bargain was made the plaintiff already knew that Mr. Parker was acting in a representative capacity only, and not in his individual capacity, then there would be no necessity for Mr. Parker to make it known to Mr. Harmon that he (Mr. Parker) was acting as the representative of the Fruit-vale Company.”

This request was a correct statement of the law, and might well have been given by the court. But we think the same idea was fairly expressed in the general .charge where the court said:

££If Mr. Harmon, the plaintiff, had it in his mind that he was not hired, and was not to look to Mr. Parker for his pay, then, of course, the bargain * * * would rather have been made.with the Fruit-vale Company.”

And again:

“I said to you before, and I repeat it again, that a man is an individual before he is the president of a company, and the law intends that people dealing with each other, rather deal with each other as individuals, unless there is something in the surrounding facts and circumstances that would lead a jury of 12 men to believe that — fairly believe that it was not so intended.”

On the whole we do not believe that any such error has been pointed out in the proceedings as should cause a reversal, and the judgment is affirmed.

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


source: Caselaw Access Project

author: Stone, C. J.

license: Public Domain

text:
    CHYLOWSKI v. STEINBERG.
    1. Forcible Entry and Detainer — Landlord and Tenant — Summary Proceedings — Circuit Court Commissioner — Force—Actions, Condition for.
    A complaint before a circuit court commissioner, which does not state that the defendant entered into the premises with force or that he unlawfully holds them by force, as required by 3 Comp. Laws 1915, § 13231, is not a complaint for forcible entry or detainer, and does not cover the case of a landlord who retains possession of his premises against the right and demand of his tenant.
    2. Same — Force—Possessory Action.
    There must be evidence, to support the proceeding, that the entry or detainer was riotous, or personal violence must be used or in some way threatened, or the conduct of the parties guilty of the entry or detainer must be such as in some way to inspire terror or alarm in the persons evicted or kept out; in other words, the force is not against or upon the property, but force used or threatened against persons as a means, or for the purpose of, evicting or keeping out the possessor.

      3. Same — Circuit Court Commissioner — Jurisdiction — Ejectment.-
    Summary proceedings, under the provisions of 3 Comp. Laws 1915, § 11164 et seq., cannot be brought for the possession of premises by a lessee against the landlord, who refuses to give or restore possession. Plaintiffs remedy is damages or ejectment.
    Error to Wayne; Mandell, J.
    Submitted July 21, 1916.
    (Docket No. 149.)
    Decided December 21, 1916.
    Summary proceedings by Alexander Chylowski against Louis Steinberg for the possession of leased premises before a circuit court commissioner of Wayne county. Defendant removed the cause by appeal to the circuit court. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      Louis James Rosenberg (Cornelius & Ring, of counsel) , for appellant.

      William II. Turner, for appellee.
   Stone, C. J.

This proceeding was instituted by the plaintiff to obtain possession of one room contained in a building known as 1008 Michigan avenue, Detroit. The defendant was the owner of a two-story building located on said avenue. It consisted of two stores on the ground floor, and two separate living apartments on the second floor. On May 1, 1912, plaintiff, under a verbal arrangement with defendant, moved into and took possession of one of the stores, being No. 1008, and the living apartment above. He was to use the store for business purposes, and as at the time of renting the premises he had no personal use for the living apartment, he rented it to a tenant by the name of Walters. During the month of May the defendant was altering and repairing the upper story of the building. The living apartment, up to that time, was divided into three large rooms. It was changed by defendant into seven smaller ones. Plaintiff’s tenant, Walters, moved in on May 1, 1912, during the time the alterations were being made. Not having sufficient room to house his family during the time the repairs and alterations were being made, Walters asked the defendant for the privilege of using the small room that is the disputed subject of this suit. Defendant permitted him to use the room during the time the repairs were being made. The répairs were completed on May 26, 1912, and Walters surrendered the possession of this room to the defendant.

The plaintiff desiring a written lease, the parties entered into an agreement whereby plaintiff leased from defendant the premises known as 1008 Michigan avenue for a period of five years from June 1, 1912. Plaintiff has never had possession of the disputed room, by tenant or otherwise, since June 1, 1912, and it is the claim of defendant that plaintiff has never had possession of the room under the written lease of that date. It appears that the sole occupancy of this room by plaintiff was by his said tenant during the month of May, while the repairs and alterations were being made. Matters ran along until December 13, 1913, when plaintiff demanded possession of the room. This demand not being complied with, this suit was instituted by the plaintiff on January 22, 1914, upon the following complaint:

“State of Michigan,
County of Wayne, ss- •
“To Samuel L. May,
“Circuit Court Commissioner of Wayne County,
“Michigan:
“The complaint of Alexander V. Chylowski, of said county of Wayne, respectfully shows that Louis Stein-berg is in possession of the following described lands and tenements situated in the city of Detroit, said county and State, to wit: ‘Rooms at No. 1008 Michigan avenue.’ That complainant is the lessee of said premises, and that Leonard L. Szmanski is his agent, and makes this complaint for and in his behalf. That defendant both holds said premises Unlawfully and against the rights of said complainant, and that' said complainant is entitled to possession of same. Wherefore this complainant prays that proceedings according to the statute in such case made and provided, may be taken against said defendant and that the possession of said premises may be restored to said complainant. Leonard L. Szmanski.”

This complaint was duly sworn to and filed with the circuit court commissioner, and a summons was duly issued and served. Defendant duly appeared and pleaded not guilty. Upon the trial before the commissioner a judgment of restitution was duly entered, and defendant appealed to the circuit court where a jury trial was had.

At the trial in the circuit court, at the close of plaintiff’s case, and also at the close of all of the testimony, the defendant moved for a directed verdict in his behalf, upon the grounds that plaintiff had mistaken his remedy, that in place of summary proceedings, he should have proceeded in an action for damages, or in ejectment; also that it appeared from plaintiff’s own testimony that defendant had always contended that this part of the premises was not covered by the lease, and that plaintiff had never obtained possession thereunder. The motion was denied and exception duly taken, and the case was submitted to the jury.

The trial resulted in a verdict and judgment for the plaintiff, and the defendant has brought the case here upon writ of error. Among the assignments of error are the following:

(1) “The court erred in refusing to direct a verdict of ‘no cause for action,’ upon the motion in that behalf made, for the reason that said plaintiff never had possession under the lease, and had therefore chosen the wrong remedy to obtain possession thereof.”

(4) “The court erred in making the following statement to the jury in his charge: ‘Now the plaintiff claims that he was in possession before this lease was made; he claims that after the lease was made, his possession was the same. Now, as he went lawfully into possession on the 1st of May of the premises known as 1008 Michigan avenue, he could not be deprived of such possession except in a lawful manner, and his complaint is that he was deprived by the defendant taking possession, either surreptitiously or by force, of this particular room.’ ”

The above is a correct excerpt from the charge, and the trial court also instructed the jury that the proceedings were brought under the first ten sections of chapter 308, 3 Comp. Laws, §§ 11153-11162 (3 Comp. Laws 1915, §§ 13229-13238), and that the claim of defendant that the proceedings were under section 11164 et seq. was not true.

The record is in a very unsatisfactory condition. The written lease of June 1, 1912, although offered in evidence, does not appear in the record. It does appear, however, that it was made and took effect June 1, 1912, and had no relation to May 1st. It seems to us that the ease was tried under a misconception, which amounted to a mistrial.

Neither the complaint nor the evidence warranted the court in holding that the case was brought under the first ten sections of chapter 308 of the Compiled Laws. Under those sections the complaint must state, among other things, that defendant “entered into the same with force, or that he unlawfully holds the same by force.” Section 11155. See notes to these sections in 5 How. Stat. (2d Ed.) chap. 366. For proper form of complaint under that part of said chapter, see Bush v. Dunham, 4 Mich. 345; Carpenter v. Harris, 51 Mich. 223 (16 N. W. 383); Kusterer v. Wise, 59 Mich. 382 (26 N. W. 645).

The first ten sections of this chapter provide for the recovery of possession of land which has been entered or detained by force. Shaw v. Hoffman, 25 Mich. 162-169; Marsh v. Bristol, 65 Mich. 378-386 (32 N. W. 645); Davis v. Ingersoll, 2 Doug. 372.

In Shaw v. Hoffman, supra, Chief Justice Christiancy said:

“But the entry or the detainer must be riotous, or personal violence must be used or in some way threatened, or the conduct of the parties guilty of the entry or detainer must be such as in some way to inspire terror or alarm in the persons evicted or kept out — -in other words, the force, contemplated by the statute is not merely the force used against, or upon, the property, but force used or threatened against persons, as a means, or for the purpose, of expelling or keeping out the prior possessor.”

As we have already said, there was no evidence of any force or intimidation whatever; hence the action cannot be based on the first ten sections of the chapter referred to.

The undisputed evidence in the ease, upon this record, shows that plaintiff was never in possession of the disputed room under the lease of June 1, 1912.

If it were argued that the suit was brought under sections 11164 to 11166, 3 Comp. Laws (3 Comp Laws 1915, §§ 13240-13242), and that the holding of the court otherwise was harmless error, our reply is that under the authority of Freeborn v. La Londe, 118 Mich. 662 (77 N. W. 269), summary proceedings under said last-named sections cannot be brought by a lessee against the landlord who refuses possession.

The statute is not applicable in such a case, and the remedy of the plaintiff must be either by an action for damages or ejectment. 24 Cyc. p. 1051.

We are of opinion that the plaintiff has mistaken his remedy, that the court should have granted said motion for a verdict for defendant, and that the judgment below should be reversed, with costs to defendant, and that no new trial should be granted.

Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


text:
    WEADOCK v. CHAMPE.
    1. Vendor and Purchaser — Options—Contracts—Description.
    A description of a block of store buildings in a written contract, or option, as the “Eagle Block” carried with it the buildings and rights of support of the adjoining block, in the form of a party wall, existing as such when the owner granted the option.
    2. Same — Deed—Lease—Acceptance.
    Acceptance of the terms of the option required an unconditioned assent to its terms, and a letter suggesting a change in the description, and enclosing a deed describing the property by dimensions, etc., so.as to extend beyond the center line of the wall, and not including a party wall agreement proposed by the defendant, was a counter proposition and did not create a contract, where the deed included about seven inches of the adjoining store block, instead of establishing the dividing line in the center of the party wall.
    3. Same — Offer and Acceptance.

      Held, also, that by providing in the acceptance that the conveyance should be subject to all existing party wall agreements of record in the registry office on the date thereof, the vendee in the option excluded certain existing party wall rights that were not of record and that defendant was relieved from the effect of an acceptance and was justified in refusing the counter proposal.

      4. Same — Party Walls — Leases—Option.
    Where plaintiff, after securing the option, examined the leases existing upon the property, and, having retained them for some time, expressed himself as satisfied, a deed, executed by defendant subject to the outstanding leases, was not objectionable, though the leases were not recorded in the office of register of deeds.
    5. Limitation of Actions — Party Wall — Record.
    And where a division wall between two buildings was used for the period of the statute of limitations it became a party wall, without any recorded agreement.
    Error to Saginaw; Gage, J.
    Submitted June 26, 1916.
    (Docket No. 72.)
    Decided December 21, 1916.
    Assumpsit by G. Leo Weadoek -against Elizabeth Champe for breach of contract for the sale of real estate. Judgment for plaintiff; Defendant brings error.
    Reversed, and no new trial ordered.

      H. E. Spalding, for appellant.

      Miles J. Purcell (Humphrey, Grant & Humphrey, and George W. Weadoek, of counsel), for appellee.
   Stone, C. J.

This is an action in assumpsit to recover damages for the breach of a contract alleged to have been made by the defendant to sell and convey certain premises to the plaintiff. The case was tried by the court without a jury, and resulted in a judgment for the plaintiff of $6,000.

At the time of the alleged contract, the defendant owned certain premises in lots 7 and 8 of block 34 of Hoyt's subdivision in the city of Saginaw, situate on the south side of Genesee avenue between Washington avenue and Franklin street. On it were situate two brick blocks, the westerly one Nos. 214 and 216 Genesee avenue, known as the “Eagle Block," the other known as the “Tea Store” property, and numbered 218, adjoining the Eagle Block on the east. Both these blocks had been built before 1870, and, with the exception of certain alterations in their fronts, had remained unchanged. Between the two blocks was a single brick wall 12 inches thick, which wall supported the joists of both buildings, and served as a party wall for the benefit of both. The easterly side line of this wall was some 47.7 feet west of the easterly side line of lots 7 and 8, and west of Franklin street upon which both lots (lot 8 lying south of lot 7, and forming the rear part of the premises in question) abutted.

On February 2, 1907, the defendant, at plaintiff’s request, executed the following option, drawn by the plaintiff, but running to his brother:

“This contract, made this 2d day of February, A. D. 1907, by and between Elizabeth Champe of Saginaw, Michigan, party of the first part, and John V. Weadock of the same place, party of the second part, witnesseth:
“The said party of the first part, in consideration of the sum of one dollar and other valuable consideration to her in hand paid by the said party of the second part, does hereby agree that she shall and will at any time on or before April 1, 1907, from the date hereof, at the written request of the said party of the second part, execute and deliver to him, or to any person or persons as he, the said party of the second part shall direct in writing, a good and sufficient warranty deed of the following described land, situated in the city of Saginaw, county of Saginaw, State of Michigan, to wit:
“The property known as the Eagle Block, situate on the south side of the Genesee avenue between Franklin street and South Washington avenue in the city of Saginaw, Michigan, for the sum of twenty-four thousand ($24,000) dollars, payable as follows: Cash on delivery of warranty deed, abstract and tax history.
“And the said party of the first part does hereby further agree that she shall and will not before April 1, 1907, from the date hereof, sell, convey, mortgage or otherwise encumber the said land, or any part thereof, or do, or permit to be done, any act or deed to diminish or encumber the title to said land.
“It is agreed by and between the parties hereto, that if the said party of the second part at the expiration of the aforesaid limited time shall have declined or omitted to make application for the purchase of said land at the price aforesaid then this instrument shall be void, and the above sum of one dollar so paid as aforesaid shall be forfeited by the said party of the second part, and the said party of the first part shall have the right to retain the same as and for liquidated damages, and the said party of the second part shall relinquish to said party of the first part all claim to the said land, either in law or equity, and also all claim to the said sum of one dollar, so paid as aforesaid, and no claim of the said party of the second part under this contract shall then be effectual.
“In witness whereof, the said party has hereunto set her hand and seal the day and year first above written.
“Elizabeth Champe. [Seal.]
“In presence of:
“G. Leo Weadock.
“Geo. W. Weadock.
“State of Michigan, \
“County of Saginaw, j ss- :
“On this 2d day of February, A. D. 1907, before me, the subscriber, a notary public in and for said county, personally appeared Elizabeth Champe to me known to be the same person described in and who executed the foregoing instrument, as vendor, and acknowledged the same to be her free act and deed.
“G. Leo Weadock,
“Notary Public in and for Saginaw County, Mich.
“My Commission expires 3/5/1910.”

Shortly after the execution of the option, the defendant, who lived at the Hotel Vincent in Saginaw, went to Washington, D. C., on a visit, returning April 3, 1907. During her absence, and on March 27th, the plaintiff sent to her at her Saginaw address the following letter:

“Saginaw, Mich., March 27, 1907.
“Miss Elizabeth Champe,
“c/o Hotel Vincent,
“Saginaw, Michigan.
“Dear Madam: In re Eagle Block. In pursuance to your option to Mr. John V. Weadock dated February 2, 1907, now held by me, I hereby request you to execute and deliver to the People’s Savings Bank of the city of Saginaw, Michigan, a good and sufficient warranty deed to G. Leo Weadock of the following described land, viz.: East twenty-one and a half (21%) feet of the west fifty-one and a half (51%) feet of lot seven (7), and the east twenty-one and a half (21%) feet of the west fifty-one and one-half (51%) feet of north half of lot eight (8), also west twenty-one and a half (21%) feet of east sixty-eight and a half (68%) feet of lot seven (7), and the west twenty-one and a half (21%) feet of east sixty-eight and a half (68%) feet of north half of lot eight (8) in block thirty-four (34) of Hoyt’s plat of the city of East Saginaw, now a part of the city of Saginaw, Michigan, according to the recorded plat thereof. It being the intention of said first party to hereby convey all of the property known as the ‘Eagle Block’ situate on the south side of Genesee avenue between Washington avenue and Franklin street and being known as Nos. 214 and 216 Genesee avenue in the city of Saginaw, Michigan, subject to all existing party wall agreements as of record in the office of the register of deeds of Saginaw county, Michigan, on the 2d day of February, 1907. So that I may pay the purchase price, viz. $24,000, to you at said bank on or before April 1, 1907. To save you trouble in the premises, I herewith hand you a deed in pursuance to your option which you may submit to your attorney and if you find it satisfactory, execute and deliver on or before April 1, 1907.
“Very truly yours,
“G. Leo Weadock.”

On the same day, he sent to her Washington address the following letter, inclosing therein a copy of the Saginaw letter:

“Saginaw, Mich., March 27, 1907.
“Miss Elizabeth Champe,
“c/o Riggs House,
“Washington, D. C.
“Dear Madam: I herewith inclose you copy of a letter sent forward to your Saginaw address by reg- ■ istered mail today. I am also inclosing you a deed, a duplicate of that sent to Saginaw.
“We have carefully compared the description in this deed with that in the deed to you covering the same property and would suggest that you execute same before some notary or other person authorized to take acknowledgments in the District of Columbia, or wherever this letter may reach you, and forward to the People’s Savings Bank of this city, with instructions to them not to deliver to me except upon receipt of $24,000 and then give such instructions as you may want in regard to $24,000, which I will pay you for this property. This is the clean way of doing it and the most convenient for you.
“Please give this matter your immediate attention, as I desire to get possession of this property before the first of the month. At any rate, I claim rent from the first of April.
“Trusting that you are well and enjoying your eastern trip, I remain
“Very truly yours,
“G. Leo Weadock.”

Each letter contained a draft of deed, the description of which was identical with that recited in the letter sent to defendant, care of the Hotel Vincent. These letters constitute the only written acceptance claimed to have been made of defendant’s offer to sell and convey the Eagle Block. No other written request or demand for conveyance than that contained in these two letters of plaintiff was ever made upon the defendant. John V. Weadock, to whom the option ran, neither in writing nor otherwise, ever requested her to execute a deed, either to himself or to any one else. John V. Weadock did, on March 30th, make a written assignment of the option to the plaintiff, but defendant was not notified of this assignment. These letters sent by the plaintiff to the defendant were received by her on April 3d, on her return to Saginaw. She inquired at the bank to ascertain if the $24,000 was there for her, and was told it was not. She, however, directed her attorney to prepare a deed to the plaintiff, for conveyance of the Eagle Block, and a deed was accordingly prepared, executed, and tendered to the plaintiff on April 10, 1907. The description in that deed was as follows:

“All that part of lots seven (7) and eight (8) in block thirty-four (34) of Hoyt’s plat of the city of East Saginaw, Michigan, described as follows: Commencing at a point on said lot seven (7) on Genesee street, one hundred and fifty (150) feet east from the northwest corner of lot 6 in said block 34 and on the line of premises heretofore deeded by Cornelia A. Young to Daniel S. Hall, thence south on a line parallel with Washington street, ninety (90) feet, thence east on a line parallel with Genesee street, twenty-one and one-half (21%) feet, thence north on a line with Washington street, ninety (90) feet to Genesee street, thence west along the south boundary line of Genesee street twenty-one and one-half (21%) feet to the place of beginning, being also described as the east twenty-one and one-half feet of the west fifty-one and one-half (51%) feet of lot seven (7) and the east twenty-one and one-half (21%) feet of the west fifty-one and one-half (51%) feet of the north half of lot eight (8) in said block, and subject to the joint use of the party wall on the westerly line of said described property, which party wall may be used in common with the owner of the adjoining premises; also all that part of lots seven (7) and eight (8) in block thirty-four (34) of Hoyt’s plat of the city of East Saginaw bounded and described as follows:
“Commencing at a point one hundred and seventy-one and one-half (171%) feet distant on the south line of Genesee avenue, from the northwest corner of lot six (6) in said block, running thence southerly on a line parallel with Washington avenue, ninety (90) feet, thence easterly on a line parallel with Genesee avenue, twenty-one and one-half (21%) feet, thence northerly on a line parallel with Washington avenue to the south line of Genesee avenue, thence westerly on the south line of Genesee avenue twenty-one and one-half (21%) feet to the place of beginning, being also described as the west twenty-one and one-half (21%) feet of the east sixty-eight and one-half (68%) feet of lot seven (7) and the west twenty-one and one-half (21%) feet of the east sixty-eight and one-half (68%) feet of the north half of lot eight (8) in said block thirty-four (34), and subject to the joint use of the party wall on the easterly line of said described property, which party wall is to be used in common by the parties hereto, and the center line of said party wall being the division line between the properties deeded to second party and the property still owned by the first party and occupied by the Grand Union Tea Company.
“It is the intention of the first party to hereby convey all the property known as the Eagle Block, so called, and all rights and appurtenances acquired by user, adverse possession or written instruments relating thereto, and being Nos. 214 and 216 Genesee avenue, in the city of Saginaw, Michigan.
“This conveyance is also made subject to the leases given by first party to A. J. Schirmer dated April 1, 1906, and the firm of Oppenheim & Levy, dated April 1, 1910, and W. C. McKinney, dated April 1, 1906, and the occupation of the office on second floor over No. 214 Genesee avenue by Dr. O. P. Barber.”

The effect of this deed was to make the easterly line of the property conveyed, being the division line between it and the Tea Store property retained by the defendant, the center line of the wall lying between the Eagle Block and the Tea Store, and to declare that wall a party wall, as it had always been in fact. The plaintiff refused to accept the deed, as he testified, for the following reasons: That it established a party wall agreement in the easterly line of the building, whereas at the time of the option there was no party wall agreement of record, and he knew nothing about it; that it established a dividing line between the two properties; and that the deed did not set forth the terms of the leases which it mentioned, nor were these leases of record, nor was the option subject to any lease. It was undisputed that an abstract and tax history had been given the plaintiff some time in February, and the leases referred to in the last-named deed had also been submitted him some time in March. Although the plaintiff claimed that the option was not subject to any lease, his letter of March 27th, in which he expressed a desire to get possession before April 1st, and claiming rent from that date, indicates that he expected to take the property, with which he was well acquainted, subject to the outstanding leases. After this refusal, and on April 12th, the defendant declared the deal off, and on April 20th she sold and conveyed the property for $24,000 to another person, using the same description contained in the deed which the defendant had tendered the plaintiff on April 10th. The instant suit was thereupon brought.

The foregoing facts are substantially covered by the court’s findings, except the fact that the easterly line of the description given in the plaintiff’s letter of acceptance, and for which he demanded a deed, is at least seven-tenths of a foot east of the easterly line of the wall between the Eagle Block and the Tea Store, and is within the Tea Store property, and the fact that both buildings were built before 1870, and had remained substantially unchanged, and that the wall between them gave support to both and was used as a party wall, and the fact that John V. Weadock never requested a deed. The court made no findings on either of these points, though duly requested by the defendant’s proposed amendments so to do. The cáse has been brought here by the defendant upon a writ of error.

The exceptions to findings made, and to disallowance of amendments proposed, and the assignments of error thereon, are numerous; but we shall pass some of them and consider the following questions:

(1) Whether there was a valid acceptance of the option.

(2) Assuming that there was a valid acceptance, was the plaintiff warranted in refusing to accept the deed tendered by defendant?

1. It is the claim of defendant that there was no valid acceptance of the option, because plaintiff’s letter of acceptance demanded more land than the option covered; and that this was an attempted modification of the defendant’s offer, and not the unconditional acceptance necessary to turn that offer into a binding contract. It clearly appears that by the terms of the option the defendant agreed to sell the “Eagle Block.” According to the undisputed testimony, both that block and the Tea Store adjoining it upon the east were built before 1870, and except for changes in the fronts, immaterial here, remained in their original condition. They were separated by a 12-inch wall, , into which the joists of both entered, and which had always been used as a party wall by both. The plaintiff, who drew the option, was familiar with the property. The ownership of the blocks was originally separate, but had become united in 1897, and the defendant owned them both. We think that, in view of these facts, it cannot be doubted that the “Eagle Block,” called for by the option, meant the building and land on which it stood, together with party wall rights in the division wall between it and the Tea Store property. Tuthill v. Katz, 163 Mich. 618 (128 N. W. 757). The plaintiff therefore was required, in order to convert the option into a contract, to accept that option in writing and according to its terms. He might, properly, demand a conveyance of the Eagle Block, described in accordance with the legal meaning of that term, as above indicated. What he did do in his letter of acceptance was to state that, in pursuance to the option, he requested a deed to himself of a description calling for the west 2iy% feet of the east 68y% feet of lot 7, and of the north half of lot 8, which made the easterly boundary of the parcel demanded a line 47 feet west of the easterly boundary of lot 7. By the uncontradicted testimony of the surveyors, both for plaintiff and defendant, the easterly edge of the wall between the Eagle Block and the Tea Store is more than 47.7 feet distant from the easterly line of lot 7. The plaintiff’s “acceptance,” therefore, was a demand of a conveyance covering, not only the entire division wall, but a strip 7/10 of a foot wide east of that wall, and inside the Tea Store.

Furthermore, by the proviso that the conveyance was to be s.ubject to all existing party wall agreements, as of record in the office of the register of deeds on February 2,1907, he excluded all party wall rights for which there was no agreement of record. There was such an agreement of record as to the wall between the Eagle Block and the property west of it; but there was no such agreement regarding the wall in question between the Eagle Block and the Tea Store. The defendant had offered to sell one thing, the Eagle Block. The plaintiff offered to accept another thing, to wit, a parcel of land including the Eagle Block, the entire division wall, and a strip'of land 7/10 of a foot wide east of that wall. This was not an acceptance, but a counter proposal, which defendant properly rejected by refusing to sign any deed which embodied it. We do not think there had been any such merging of the title of the two properties as extinguished any party wall easement theretofore existing. Even had the two buildings been erected by the defendant as owner, the sale of one of them as a block or building would pass the title, subject to the right of that retained, to the use of the wall between them as a party wall. Hendricks v. Stark, 37 N. Y. 106 (93 Am. Dec. 549); Schaefer v. Blumenthal, 169 N. Y. 221 (62 N. E. 175); Ingalls v. Plamondon, 75 Ill. 118. From the testimony of the plaintiff it appears that he claimed the whole of the east wall of the Eagle Block.

2. It is the further claim of defendant that, assuming that there was a valid acceptance, plaintiff was not justified in refusing the deed tendered by defendant, and that such refusal relieved the defendant of any farther liability.

Was the provision in the deed tendered, making the sonveyanees subject to existing tenancies, proper?

As already stated, the leases were delivered to the plaintiff in March for examination, and were retained by him some time, and he expressed himself as satisfied with them. We have referred to his letter which spoke of rent from April 1st. The fact that the leases were not of record is not important, as he knew their terms. We do not think that the provision rendered the deed objectionable.

Was the plaintiff entitled to object to the party wall agreement contained in this deed?

“Every wall of separation between two buildings is presumed to b'e a common or party wall if the contrary be not shown, and this not only is a rule of positive ordinance, but is a principle of ancient law.” Washburn’s Easements and Servitudes (4th Ed.), p. *458; Hendricks v. Stark, supra; and other cases cited above.

We think the law is well settled that, where a division wall between two buildings has for a period larger than that of the statute of limitations been used for the support of both buildings, it becomes in effect a party wall, whether it was originally constructed as such or not, and without any express agreement between the owners of the buildings, and that one who purchases such a building takes it subject to such party wall right. Such was the case with the east wall of the Eagle Block.

As above stated, this wall supports both the Eagle Block and the Tea Store buildings, and both buildings have been standing for upwards of 40 years, and there was no evidence of any change in the use of this wall. The necessary inference is that its use as a party wall has been continuous during that period. If no mention at all had been made in the deed respecting the use of this wall as a party wall, the plaintiff would have taken title subject to the joint use of this wall as such by the two buildings. The party wall agreement mentioned in the deed, therefore, did nothing more than to state the rights of the parties respecting this wall that would have been implied without such provision in the deed. The plaintiff was familiar with the property. He had appraised it as one of the appraisers in the matter of the estate of Michael Jeffers, deceased. He also testified that he knew definitely the location of the block, and that he informed the defendant that no further description than the words “Eagle Block” in the option was necessary. The description in the deed tendered, fixing the center line of the east wall as the easterly boundary of the premises, was; proper and gave the plaintiff all that he was entitled to, under the option.

Another matter appearing in the record should be referred to. The estate of Michael Jeffers, deceased, owned both the Eagle Block and the Tea Store property. It was assigned in the administration of the estate to the defendant and John Jeffers in equal portions. The two heirs, in 1906, adjusted their interests by a partition deed, and in that deed, as shown by the memorandum in the record, for the first time in the chain of title, occurs the description which the plaintiff claims he was entitled to under the option. That description is given in that deed only as an alternative to the description already referred to of the 43-foot parcel, commencing on a line 150 feet east of the northwest corner of lot 6, being the description in the deeds under which Michael Jeffers derived his title. As has been already shown, that alternative description is in fact erroneous, as a description of the Eagle Block, because calling, not only for the entire division wall, but for a strip of land to the east of that wall, and in the Tea Store.

The fact should not be lost sight of that all the plaintiff claimed was the Eagle Block. “The Eagle Block” may be said to be the “master description,” or the controlling description, in the option; and there is no claim that this description was a mistake. We held, in Tuthill v. Katz, supra, that such a description was sufficient; and, although the instrument itself contained also an erroneous description, the mistaken portion of the deed must be rejected, and the remainder be treated as controlling. Here, the instrument itself contained no erroneous description, and an erroneous alternative description in the partition deed cannot avail plaintiff under his option for the purchase of the Eagle Block.

So in any view which we are able to take of the case under the undisputed evidence, we think the trial court erred in not entering judgment for the defendant.

For the reasons given, the judgment below is reversed, without a new trial.

Kuhn, Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


author: Kuhn, J.

text:
    LONG POINT DEVELOPMENT ASS’N v. McINTOSH.
    1. Injunction — Restraining Action at Law — Adequate Remedy at Law.
    Where plaintiff filed a bill to enjoin. defendants from maintaining a garnishment suit upon certain contracts for broker’s commissions for selling lands, representing that there existed an oral arrangement between them and their agents, including plaintiff, that they would set off their commissions against certain sums due to the company upon land contracts, and complainant prayed for an injunction and for an accounting under the contracts, the bill was not multifarious, and presented a case for equitable cognizance.
    2. Same — Judicature Act — Statutes—Repeal—Courts.
    The exception to Act No. 283, Pub. Acts 1915, relating to injunctions staying proceedings in State or Federal courts, and limiting authority to issue the same to a judge having the same territorial jurisdiction, is repealed by the judicature act. 3 Comp. Laws 1915, § 12004 et seq. The general repealing clause, referring to acts inconsistent therewith, repealed the pre-existing statute, since the last clause, omitted in the judicature act, was not consistent with the new statute.
    Appeal from Cheboygan; Shepherd, J.
    Submitted June 12, 1916.
    (Docket No. 33.)
    Decided December 21, 1916.
    Bill by the Long Point Development Association against John S. McIntosh and Paul D. Wampler, co-partners as McIntosh & Wampler, for an injunction against an action at law and for other relief. Defendants filed a motion to dismiss the bill. From an order denying the motion, defendants appeal.
    Affirmed.

      Victor D. Sprague, for complainant.

      Coumans & Gaffney, for defendants.
   Kuhn, J.

This is an appeal from the order of the trial court denying a motion to dismiss the bill of complaint filed in the cause on the ground that it is multifarious and that the plaintiff has an adequate remedy at law.

The averments of the bill set up, in substance; That the defendants, as copartners, have a written contract with the plaintiff to act as its selling agents of certain tracts of orchard land, on which contract there was due and unpaid on October 1, 1915, approximately $1,-500 of earned commissions. That the defendants, individually, have certain contracts with the plaintiff for the purchase of certain orchard tracts from it, upon which contracts moneys fall due on December 18th of each year. That there was a verbal understanding, and by long practice it has been the custom of the parties, to set off against the commissions owed by plaintiff to the defendants the sums due plaintiff from the defendants on those contracts. That on October 1, 1915, the defendants commenced suit against the plaintiff in the circuit court for Bay county claiming that there was due from plaintiff to the defendants the sum of $2,000 over and above all legal set-offs, and began garnishment proceedings against 14 persons who were indebted to the plaintiff; and it appeared that the plaintiff herein has not been served or appeared as defendant in that suit. That on December 1, 1915, a suit was begun in the circuit court for the county of Cheboygan by one Stephen D. Corvin as plaintiff against McIntosh & Wampler, defendants herein, as defendants, in which suit it was claimed that there was due him from the defendants the sum of $1,075, and the plaintiff in this suit was made garnishee defendant therein.

On January 1, 1916, the bill of complaint in this cause was filed alleging the above facts and the claim that the suit in Bay county was maliciously instituted by the plaintiff therein for the purpose of embarrassing and harassing the plaintiff in the sale of its orchard lands. The bill prayed for the following relief:

(a) Injunctive relief against McIntosh & Wampler from prosecuting their suit instituted in Bay county.

(5) Injunctive relief against the garnishee proceedings in the same court, and that the defendants therein be ordered to pay over any money due from them to plaintiff.

(c) An accounting between plaintiff and defendants, as individuals and copartners, praying an application of the moneys according to the equity set up . in the bill.

(d) Injunctive relief against Corvin prosecuting his garnishment suit in the Cheboygan county court against complainant, and that the moneys garnisheed by Corvin be released from garnishment and applied as directed in the accounting.

Appellants seek to review here the refusal of the lower court to dismiss the bill for the two reasons stated above.

We do not think that it can be said that the bill in question is multifarious under the authority of the following cases: Torrent v. Hamilton, 95 Mich. 159 (54 N. W. 634); Densmore v. Savage, 110 Mich. 27 (67 N. W. 1103); Cleland v. Casgrain, 92 Mich. 139 (52 N. W. 460). See, also, Puterbaugh’s Michigan Chancery, pp. 22-24.

In Torrent v. Hamilton, supra, in discussing the question of multifariousness, this court quoted the following from 1 Daniell, Ch. PI. & Pr. p. 335:

“What is more familiarly understood by the term ‘multifariousness,’ as applied to a bill, is where a party is able to say he is brought as a defendant upon a record, with a large portion of which and of the case made by which he has no connection whatever.”

Can it be said that the appealing defendants here are brought in “upon a record a large portion of which and of the case made by which he has no connection” ? We think not, for they are certainly interested in the commission-selling contract; they are interested in the moneys due thereunder and the suit they brought to recover the same; they are interested in the orchard contracts and the moneys due thereunder; and they are interested in the suit brought against them by Mr. Corvin and in the garnishment of the moneys claimed to be due them from the plaintiff.

It is the plaintiff’s claim that the object of the bill is to protect the plaintiff’s rights which are centered in $1,500 of selling commissions. The plaintiff claims that money to apply on the orchard contracts. The appealing defendants claim the money, and the defendant Corvin claims the money, and the only object of the bill seems to be the determination of its disposition. Counsel for plaintiff do not contend that they are seeking to compel Corvin and McIntosh & Wampler to litigate their demands in this suit, and no interference with that suit is sought, although such a suggestion is made in the bill; it being now stated that it was intended only as a suggestion.

With reference to the claim that the plaintiff has an adequate remedy at law, it is the plaintiff’s contention that the oral agreement or verbal understanding as to the settlement to be made each year was not a legal contract enforceable at law, but was an equitable understanding and one which could only be urged in a court of equity. The averments of the bill being taken as true on the hearing of this motion, we are of the opinion that it cannot be said that the plaintiff had an adequate remedy at law.

In this court it is also charged that the circuit court of Cheboygan county did not have jurisdiction to restrain the suit in Bay county by reason of the following provision of Act No. 283, Pub. Acts 1915 (3 Comp. Laws 1915, § 12662):

“No injunction shall issue to stay the trial of any personal action in a court of law, until the party applying therefor shall execute a bond, with one or more sufficient sureties, to the plaintiff in such action at law in such sum as the circuit judge or other officer allowing the injunction shall direct, conditioned for the payment to the said plaintiff, or his legal representatives, of all moneys which may be recovered by such plaintiff, or his representatives, or the collection of which may be stayed by such injunction in such action at law for debt or damages and for costs therein; and also for the payment of such costs as may. be awarded to them in the court in chancery, in the suit in which, such injunction shall issue; but no writ of injunction shall issue from any court of this State which will operate to stay any suit or proceeding pending in any court of the United States, or in any other court of this State, except it be issued by a judge of the court having the same territorial jurisdiction as the court in which such suit or proceeding is pending .”

During the same session of the legislature, Act No. 314, Pub. Acts 1915 (3 Comp. Laws 1915, § 12004 et seq.), known as the “judicature act,” was passed, and by that act all acts or parts of acts inconsistent with and contrary to its provisions were repealed. Said Act No. 283, Pub. Acts 1915, was re-enacted, except the portions of the act italicized above, which was omitted. In our opinion it must be said that said Act No. 314 repealed so much of Act No. 283 as is clearly inconsistent with its provisions. Act No. 283, Pub. Acts 1915, was in force and effect from August 25 to January 1, 1916, when the judicature act went into effect. The bill of complaint in this case was filed January 1, 1916, and tíie injunction was issued January 10, 1916, so that it appears that neither the bill nor the injunction can be said to be affected by said Act No. 283, Pub. Acts 1915, which was not then in force.

Being of the opinion that the bill of complaint sets up grounds for equitable relief, we affirm the order of the circuit judge denying the motion to dismiss, with costs to the appellee. The case will be remanded to the circuit court in chancery; the defendants to file their answer within 15 days thereafter.

Stone, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


author: Kuhn, J. Ostrander, J.

text:
    WEAVER v. MICHELLO.
    1. Homestead — Husband and Wife — Signature of Wife — Estate by Entirety — Creation.
    The conveyance of a homestead to a third party executed by the husband alone, for the admitted purpose of creating an estate by tbe entirety, vested tbe intended estate in the husband and wife, to whom a reconveyance was forthwith executed, absence of the wife’s signature not avoiding the conveyance under Art. 14, § 2, of the Constitution, which was for the protection of the wife’s interest.
    2. Dowek — Inchoate Right — Estates—Merger.
    Since the inchoate right of dower is not such an estate as gives the possessor a different title or estate than that of her husband, tbe dower right merged in an. estate by the entirety, which was created without her joinder. Where dower and fee combine in tbe same person dower merges in tbe greater estate.^
    Ostrander, J., dissenting.
    Appeal from Bay; Collins, J.
    Submitted June 13, 1916.
    (Docket No. 59.)
    Decided December 21, 1916.

      Bill by George Weaver and another against Lydia M. Michello and another for the cancellation of certain deeds. From a decree for defendants, all parties appeal.
    Modified and affirmed.

      Stoddard & McMillan and C. W. Hitchcock, for complainants.

      W. B. Henry, for defendant Lydia Michello.
    On February 7, 1911, Morris L. Michello was living on a piece of real estate in Bay county which was his homestead, and on that day Lydia Michello, his wife, filed a bill for divorce against him which was settled amicably two days later. At the time of the settlement of this litigation, Morris Michello made a deed of the homestead to Fred E. Shearer and his wife, and on the same day and immediately thereafter said Fred E. Shearer and his wife made a deed of the same premises to Morris Michello and his wife, Lydia, as husband and wife. These deeds were executed at one and the same time and without consideration, Morris Michello also signing an agreement by which a resumption of the marriage relation was agreed to. The parties lived together for some time, and a second suit for divorce was brought, pending which Morris died.
    The bill in the instant case was filed by Louis Michello and Francis Michello, the two sons of Morris Michello, against Lydia M. Michello, the widow of Morris Michello, and Orilla Trudel, who is also a daughter of the deceased. It is contended that the deeds are a cloud upon the plaintiffs’ title to the land, and it is prayed that the deeds be set aside and general relief given. Their contention is that the deed from Morris Michello to the Shearers is void because Lydia Michello did not join in it, and that therefore the Shearers had no title to the land to convey, and hence the defendant Lydia Michello has no interest in the premises except her dower interest; and, secondly, they contend that, if the deeds are not void, they did not establish an estate by the entireties, but rather a tenancy in common.
    It is the contention of the defendants that the deeds are valid and created a tenancy by the entireties, and upon the death of Morris Michello his wife became the owner of the fee.
    The learned trial judge held that the deeds were valid, but concluded that the legal effect of the deeds was to create a tenancy in common. The plaintiffs and defendants both appeal to this court, and the construction to be placed upon these deeds is the only question for review.
   Kuhn, J.

(after stating the facts). It is clear, I think, that in contemplation of law no fee to the property in question rested for a single moment in the Shearers, as they were mere instruments used for the purpose of conveying title. There can be no doubt but that the entire transaction was made and executed for the purpose of creating a greater estate in the wife, Lydia Michello, and for her benefit.

The homestead provision in our Constitution is a wise provision, and our court has uniformly held that, In order to create a valid conveyance of the homestead, it must have the signature of the wife. But it was only in cases where giving validity to the deeds impaired or destroyed the homestead right. This court said, in Stevens v. Castel, 63 Mich. 111, 120 (29 N. W. 828, 831):

“A deed from the husband to a third person of a homestead for the mere purpose of transferring the title to the wife which is accomplished by the grantee at once executing a deed to her, is not void for want of her signature. The whole transaction should be treated in law as a conveyance from the husband to the wife.
“If the deeds were ever delivered and passed the title, Mullinnex was a mere instrument in the hands of the parties for the purpose, and the only purpose, of transferring the title from the husband to the wife. In such a case I do not think the deed to Mullinnex would be void without her signature. It should be treated — the whole transaction — in law as a simple conveyance from the husband to the wife. The object of the homestead provision in this respect is to protect the interest of the wife, and these conveyances inured only to her benefit, and were not in any sense against any of her rights, or of the family, in the homestead.”

So in this case the homestead rights were in no way legally affected by the execution of the two deeds of February 9th and remained with the defendant Lydia Michello and the family as well after the execution of the deeds as before. The obvious purpose of the constitutional provision (section 2 of article 14) is in no wise impaired, and I am therefore of the opinion that it should not be said that the deeds are void because of the constitutional provision which makes an alienation of the homestead invalid without the signature of the wife to the same.

The learned trial judge was of the opinion that the failure of Lydia Michello to join in the deed to the Shearers, and the failure thus to transfer to them her dower right, prevented the unity of title necessary to create an estate by entireties, and therefore a tenancy in common was created instead. I am of the opinion, however, that this conclusion is not well founded, for the reason that in an estate by the entireties the husband and wife are not seised by the moieties, but are seised by the entireties, or, as it has been said, “Each is seised of the whole,” and any inchoate right of dower which Lydia Michello may have had in the premises merged when she became seised of the whole estate by the deed from Shearer and wife.

The inchoate right of dower 'is not such a right that could be said to have given Lydia Michello a different title or estate than her husband, but it was a mere inchoate interest such as could be released or abandoned, and merged into the title when the dower and the fee combined in the same person. When Morris Michello died, Lydia Michello, being seised of the whole, took the whole estate, and her right of dower is therefore nonexistent and of no benefit to her.

In Pegg v. Pegg, 165 Mich. 228 (130 N. W. 617, 33 L. R. A. [N. S.] 166, Am. & Eng. Ann. Cas. 1912C, 925); Wright v. Knapp, 183 Mich. 656 (150 N. W. 315), and Michigan State Bank v. Kern, 189 Mich. 467 (155 N. W. 502), the formalities necessary to create a tenancy by the entireties were not observed. But in my opinion by the conveyance in question all the legal requirements to create an estate by the entireties were observed, and such an estate was therefore created.

The decree of the lower court will be therefore modified in accordance with this opinion. As this was a settlement of a family matter and a construction of the deeds was sought by both sides to the controversy, no costs were allowed by the lower court to either party as against the other. Such an order will likewise be made here.

Stone, C. J., and Bird, Moore, Steere, Brooke, and Person, JJ., concurred with Kuhn, J.

Ostrander, J.

(dissenting). Morris L. Michello was the owner of the premises. He executed a conveyance of them to Fred E. Shearer. As a consequence, title to the premises, and ownership, did, or did not, pass to Shearer. It did not pass because the land was a homestead and the wife of Michello did not join in the conveyance. If Shearer acquired no title, he could not by his own deed create, or convey, an interest in the land. Yet it is plain that the widow is claiming an estate, created, if at all, by Shearer’s deed. It will not do to say that the occupancy of the land, for a homestead, was not actually disturbed by the transaction, and was not intended to be. The owner, by his deed, alienated the land, and his deed is therefore void. Ex nihilo nihil.

The quotation from the opinion of Mr. Justice Morse in Stevens v. Castel, 63 Mich. 111, 120 (29 N. W. 828), is the expression of the individual opinion of that judge, who expressly states that a charge to the contrary was an error not affecting the result of the trial “and is of no moment here.”

On the contrary, in Lott v. Lott, 146 Mich. 580 (109 N. W. 1126, 8 L. R. A. [N. S.] 748), reasoning for and against the proposition that the constitutional provision can be evaded was presented, with a review of former decisions, with the result that the court adhered to the rule that the conveyance of a homestead, by a married man, to a third person, must, to be valid, have the signature of the wife. See, also, Lawrence v. Vinkemulder, 157 Mich. 294 (122 N. W. 88).

The husband was owner of the land when he died. The land belongs to his heirs at law, subject to the widow’s rights therein.


text:
    NORRIS v. DETROIT UNITED RAILWAY.
    1. Street Railroads — Excavations—Streets—Negligence.
    Where plaintiff fell into an excavation of the defendant railway, in the streets of the city of Detroit, and sustained severe injuries, the trial court did not commit error in instructing the jury, in substance, that, if the rain and storms that might be expected dt that time of the year ■put the street out of repair and rendered it dangerous, defendant would be chargeable with negligence, but, if they found that a storm of unusual severity, or one that might not be expected under ordinary circumstances and conditions, came up, then it would be something that human foresight could not. prevent and would be an extraordinary visitation and the defendant would not be chargeable with negligence.

    2. Evidence — Mortality Tables — Previous Disease.
    The mortality tables were improperly received in evidence in a personal injury action in which plaintiff admitted she had a weak heart and had suffered from goitre or what was described as “Graves Disease,’’ which was almost cured and where her condition was aggravated by the accident.

    3. Same — Permanent Injuries.
    Upon testimony of plaintiff’s physician that the injury to her ankle was of a permanent nature, the court was right in submitting to the jury the matter of damages.
    4. Same — Compromise and Settlement — Agency.
    A question asked of defendant’s claim agent, whether or not he had been authorized to settle the case, was clearly incompetent. But where the court charged the jury that the remark of counsel was not for their consideration and that the matter of compromise could not be considered at all, the court on error would not hold the error prejudicial, especially when the question was not answered.

      5. Same — Appeal and Ebkor.
    Tbe court, furthermore, will not reverse a case on error for argument of counsel not shown by the record but presented by affidavits, the trial court returning that he did not so understand the alleged objectionable argument.
    6. Same — Trial—Damages.
    Future damages are limited to such as the evidence makes reasonably certain will necessarily result from the injury sustained, and it was error to advise the jury that they might award such sum as would compensate plaintiff for the injuries she would be likely to suffer in the future.
    Error to Wayne; Des Voignes, J., presiding.
    Submitted June 16, 1916.
    (Docket No. 148.)
    Decided December 21, 1916.
    Case by Myrtle Ida Norris against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Corliss, Leete & Moody and William G. Fitzpatrick, for appellant.

      William M. Mertz, for appellee.

      On the question of liability of street railways for defects in tracks or street, see notes in 52 L. R. A. 448; 15 L. R. A. (N. S.) 840.

      On admissibility of mortality tables in evidence in action for personal injuries, see note in 40 L. R. A. 553.

   Kuhn, J.

The plaintiff, an unmarried woman about 24 years of age, brought the action to recover damages resulting from her falling into an excavation made by the defendant in the course of the construction of its tracks on Grandy avenue north from Gratiot avenue in the city of Detroit. On a former trial the plaintiff obtained a verdict, and the judgment entered thereupon was reversed and a new trial granted because of the errors in the admission of testimony. This decision is reported in 185 Mich. 264 (151 N. W. 747). On the new trial a judgment for the plaintiff in the sum of $2,055 was obtained, and the case is again brought here by writ of error.

The facts surrounding the injury are so fully set forth by Mr. Justice Stone in the previous opinion of this court that it will be unnecessary to repeat them here.

It is argued in appellant’s brief that there was no proof of negligence, and that therefore the court should have directed a verdict for the defendant. Upon the argument of the case, however, counsel for defendant and appellant stated that he was of the opinion that the record did raise questions which should have been submitted to the jury. With this we agree, as the proofs in support of plaintiff’s claim differed but little from those introduced on the previous trial.

In the previous opinion it was said:

“If the jury should find, as matter of fact, that the storm was an unusual and extraordinary one, and one which the defendant could not, in the exercise of ordinary care, reasonably expect, we think the question then should have been clearly put to the jury whether the defendant had had a reasonable time in which to restore the lights before the accident happened; and they should have been instructed that if it had not had a reasonable time in which to restore the lights, in case the storm was of such a nature, then there would be no liability. Whether it was such a storm as it might reasonably expect and provide for at that season of the year was also a question for the jury. The idea is embraced in the charge of the court in Beattie v. City of Detroit, 137 Mich. 319, at page 324 (100 N. W. 574, at page 576), where the charge of the trial court was approved by this court:
“ ‘Did they do all that prudence and foresight would demand of them? In other words, if the rain and storms that might be expected, if you believe that they might be expected at that time of the year, would put that street out of repair and render it' dangerous, then, gentlemen of the jury, in my opinion, negligence would be chargeable against the city; but if you find that a storm of unusual severity, or a storm that might not be expected under ordinary circumstances and conditions at that time of the year, came up, then it is something human foresight cannot see or prevent, and that would be an extraordinary visitation of the elements, and the city * * * would not be, in such a case, chargeable with negligence.’
“And the rule of reasonable time in which to remedy the defect would apply.”

The trial judge on the new trial practically submitted the question in issue in the language approved in Beattie v. City of Detroit, supra.

The next assignment of error relates to the admission of the mortality tables. It appears that the plaintiff, before the accident involved in this litigation, was suffering with a goiter, or what is known as “Graves Disease.” Plaintiff herself admitted this in her testimony and said that before the accident she had a weak heart because of the goiter, and claimed that she was almost cured, and that her condition was aggravated by the accident. The trial judge withdrew from the jury any question of permanent injury so far as the goiter was concerned, but did submit to the jury the question of permanent injury to her ankle. Dr. Zaeger testified that in his opinion the injury to the ankle was permanent, and that there would be no improvement in the condition caused by plaintiff’s fall. We are of the opinion that this testimony was sufficient to warrant the trial judge in submitting the question of permanent injury to the jury; but, in view of the fact there is no question that the plaintiff was not in average physical health and vitality at the time of her disabling injury, we are constrained to hold that it was error to receive the mortality tables and submit them for the consideration of the jury. In the absence of any testimony to show how much her expectancy of life was impaired by the pre-existing pathological condition, the tables could furnish no safe guide as to the probable duration of the disabling injury.

In Denman v. Johnston, 85 Mich. 387 (48 N. W. 565), this court in speaking of the mortuary tables said:

“But their use in trials for negligent injuries not causing death requires great' caution on the 'part of the trial court. The expectancy of life in those tables is based upon the lives of healthy persons who are of the ages indicated; and it cannot be said, as was said by the trial judge in this case, that a party who, prior to the injury complained of, was afflicted with hernia, which had been aggravated by such injury, and who was also suffering from internal injuries, as claimed, had an expectancy of life at the age of 52 of 17 years, or any other number of years. The tables furnish no basis of expectancy of such a life. They do form a basis of the expectancy of life of a healthy person of the age of 52, and such expectancy is stated in the tables to be 19.49 years; but other testimony of experts would be required to show what the plaintiff’s expectancy of life would be, taking into consideration his ailments, and the effect they would probably have to shorten his expectancy. Such testimony must necessarily be problematical, but perhaps it is the best that is attainable to establish the probability.”

See, also, Clinton v. Laning, 61 Mich. 355, at page 361 (28 N. W. 125).

In Wilkins v. City of Flint, 128 Mich. 262 (87 N. W. 195), in which case the tables were admitted where it was claimed that the plaintiff, a woman, was not a person in the average health, it was said:

“It is now claimed that the plaintiff was not a woman of average health at the time of the accident, and that the tables should have been excluded, under the authority of Denman v. Johnston, 85 Mich. 387 (48 N. W. 565). Had the fact that she was not an ordinarily healthy person been admitted or undisputed, the tables would have had no bearing; but, being disputed, they were admissible, to be used or not by the jury, according to their conclusion upon the question of fact.”

If, in the case before us, it had appeared that there was any dispute about the question of whether or not the plaintiff was an ordinarily healthy woman, then that question would have been for the jury, and the mortality tables would be admissible for them to use if they should find that she was an ordinarily healthy woman. But, as we have said, there is no question but that plaintiff was not what could be called an ordinarily healthy person at the time of her injury, and therefore the mortality tables should not have been admitted, and it must be said to be prejudicial error for the court to have submitted them to the jury for their consideration.

During the examination of defendant’s claim agent, Jansen, he was asked by plaintiff’s counsel whether he had been authorized to settle the case. Objection was made, and the question was not answered, and the court immediately charged the jury in the following language:

“Gentlemen, that remark, of course, is not for your consideration at all, and I trust and have no doubt you will give heed to the rulings of the court in relation to the testimony which should go in or not go in. It is a rule of law that a matter of compromise is nothing for the jury to determine one way or the other. There is nothing here as to such a fact at all; and, even if there was, it could not be considered by you, because the law favors compromises, and for that reason they do not allow it to be permitted to enter into the evidence in any way. Counsel asked the question, and the court ruled that the witness should not answer. Exception has been taken to that as being prejudicial, and you will remember that under no circumstances have you the right to assume or presume anything in the answer to that question. If you do so, you violate your oaths.”

The question was clearly improper, and Jansen should not have been asked it; but we are not prepared to say that it was prejudicial error in view of the instructions which the trial judge immediately gave to the jury.

It was sought to show by affidavits that during the argument of plaintiff’s counsel to the jury improper statements were made. The record does not show what these statements were, as the stenographer made no minutes, of them, and the trial judge stated at the time that he had not understood the statement to have been what was claimed for it by defendant’s counsel. We cannot review this alleged error, for this court in reviewing errors of the trial court must be governed by the record and the statements of the trial court, rather than the claims of counsel as to what occurred at the trial. Pinkerton v. Bromley, 128 Mich. 236 (87 N. W. 200); Spacek v. Schaub, 140 Mich. 212 (103 N. W. 546); Hews v. Hews, 145 Mich. 247, 255 (108 N. W. 694).

In charging the jury on the question of permanent injuries and disability, and future damages growing out of the impairment and disability of plaintiff’s ankle, the court said:

“If you find for the plaintiff, it will be your duty to award such a sum as will compensate her for whatever pain and suffering and inconvenience she has experienced in the past by reason of her injuries, and for such as you may'find from the testimony she is likely to experience in the future; also, for the loss of wages, if any in the past, and what she is likely to lose in the future, if any. * * *
“Now, you may take into consideration whatever handicap you may find she has been or may be caused by this injury, in obtaining her rest and the performance of her usual duties, and such.loss of enjoyment to her in the usual routine of her life as you may find her injuries have or may cause. * * *
“A person who receives an injury has but one right of action. When he comes before a jury once, that is the end of his case, and if she or he comes before a jury he or she is entitled to receive for injuries in the past and which may be endured in the present.”

It is urged that these portions of the charge are erroneous, in that they do not follow the rule announced by this court in Brininstool v. Railways Co., 157 Mich. 172, 180 (121 N. W. 728); Kethledge v. City of Petoskey, 179 Mich. 301, at pages 311, 312 (146 N. W. 164); and Matthews v. Lamberton, 184 Mich. 493 (151 N. W. 563). The rule is well settled by these cases that future damages are limited to such as the evidence makes reasonably certain will necessarily result from the injury sustained, and the instructions should have been given in the language there approved.

The judgment must be reversed, and a new trial granted, with costs to the appellant.

Stone, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


author: Person, J.

text:
    DICKINSON v. HANLEY.
    1. Brokers — Real Estate Sale — Commissions — Contracts — Evidence.
    A real estate broker, who secured a purchaser for a parcel of realty which the several owners did not employ plaintiff to sell, was not entitled to maintain an action for his commissions against one of them who represented, as he claimed, that she had absolute power to dispose of the land, and the court did not commit error in directing a verdict against the agent for the reason assigned that he was a mere volunteer and there was no competent proof of misrepresentation, which, in part, rested upon hearsay .

      2. Same — Fraud—Evidence.
    Evidence held, to be insufficient to support a charge of fraud.
    Error to Wayne; Hally, J.
    Submitted June 16, 1916.
    (Docket No. 141.)
    Decided December 21, 1916.
    Case by Stanley R. Dickinson against Elizabeth W. Hanley and others for broker’s commissions and for fraudulent misrepresentations. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Affirmed.

      Dickinson & Dickinson (Benj. S. Pagel, of counsel), for appellant.

      A. B. Hall, for appellees.

      On what constitutes employment of broker which will entitle him to commissions otherwise earned, see note in 27 L. R. A. (N. S.) 786.

   Person, J.

It appears from the record that plaintiff is a real estate broker in the city of Detroit. His method of doing business, according to his own description of it, is as follows:

‘I go to the records in the city hall and get the names of the owners, or I go right to a certain piece of property, and ask who the owner is; then, if the owner lives there, I call on him.”

If the property is for sale, plaintiff says he picks up such information about it as he can, and starts out to find a purchaser. It is to be inferred from his testimony that he usually arranges with the latter for his compensation. In stating the origin of the present action, plaintiff says:

“In February, 1914, during one of these listing canvasses, I called at 63 Watson street.”

No. 63 Watson street is the property in question in this case. He there met Mrs. Campau, one of the defendants, and learned from her that the property belonged to Mrs. Hanley, and that it was for sale. Mrs. Campau also informed him that the price asked was $22,000. He then departed in search of some one who might be induced to make the purchase. After calling upon several gentlemen without avail, he was finally able to interest a Mr. Alvin G'. Sherman and the latter’s father and brother in the matter. These gentlemen, however, seem not to have been willing to pay $22,000 for the property. Plaintiff, therefore, again visited No. 63 Watson street, and was able this time to see Mrs. Hanley herself. Her daughters, Mrs. Campau, hereinbefore mentioned, and Mrs. Kern, the other defendants, were also present. He says that at this time Mrs. Hanley told him the property was owned by four heirs, but that they had given her absolute power to sell it.

Plaintiff also testifies that he had hoped to be able to get the property for $16,000, but found he could not. He did, however, succeed in getting Mrs. Hanley to sign a written contract, running to “Alvin G. Sherman et al.,” by which she agreed to make a conveyance for $19,000. Of this amount $500 was to be paid immediately, and the balance at a later period. Having secured Mrs. Hanley’s signature to the contract, he returned to the Shermans, who also signed it. At the time the contract was being executed by Mrs. Hanley, he asked Mrs. Campau and Mrs. Kern to sign it as witnesses. This they did, but in signing it he had them place their names below that of Mrs. Hanley, as if they were parties. Upon plaintiff’s return to the Shermans with the contract, they executed an agreement in writing to pay him a commission of $570 for securing the sale. The agreement states that such payment is understood to be his profit on the agreement to buy and sell secured by him from Mrs. Hanley.

Upon the tender of a check, a little later, to Mrs. Hanley, as payment of the $500, she repudiated the entire transaction, and refused to proceed farther with the sale. A bill was filed by the Shermans for specific performance, but for some reason, not clearly explained in the record, the suit was discontinued. Plaintiff then brought this action against Mrs. Hanley and her daughters for the loss of the commission he was to have received from the Shermans.

His claim, if we rightly understand it, is based upon two theories:

First, that the defendants, by refusing to perform the contract, became indebted to him for services in procuring a purchaser; and, second, that defendants misrepresented the authority of Mrs. Hanley to make the sale.

At the close of plaintiff's proofs, the trial court directed a verdict against him; and in this the trial court was undoubtedly right. Plaintiff utterly failed to show any contract relations whatever between himself and the defendants, or either of them. He does not testify that they ever asked or in any way employed him to dispose of the property. So far as they are concerned, he was a mere volunteer, hoping to get a commission out of the purchaser. That being true, a misrepresentation as to Mrs. Hanley's authority to make the sale, even if there were such a misrepresentation, could not be made the basis of an action in his behalf. But there is no competent proof showing that there was a misrepresentation. Plaintiff was told, so he says, after the deal fell through, that a party, other than the defendants, would have to be consulted before a sale could be effected. But he fails to furnish any evidence of the fact other than his own hearsay information.

The judgment is affirmed.

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