text:
    WIGENT v. MARRS.
    1. Executory Contract — Right to Stop Performance— Damages.
    A party to an executory contract may always stop performance by the other party by an explicit direction, but renders him-
    • self liable for such damages as the other has sustained by reason of having the performance stopped.
    2. Same — Contract Price.
    Where one party to an executory contract has renounced it, the other party cannot thereafter complete the performance of it, and recover the contract'price, but his remedy is for damages for a breach of contract.
    3. Same — Pleading—Common Counts.
    The common counts will not sustain an action to recover damages for the breach of an executory contract.
    Error to Berrien; Coolidge, J.
    Submitted 'April 25, 1902.
    (Docket No. 107.)
    Decided May 19, 1902.
    ' Assumpsit by Gardner A. Wigent against Chloe R. McClung for goods sold and delivered. Defendant died pending the trial, and the cause was revived in the name of- her administrator, Thomas Marrs. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      N. A. Hamilton, for appellant.

      Charles E. White and Cady & Andrews, for appellee.
   Hooker, C. J.

Plaintiff recovered a verdict and judgment in an action of assumpsit before a justice of the peace, which was reversed in the circuit court on appeal. The declaration was upon the common counts. The facts were undisputed, and in substance are as follows: In May, 1900, defendant’s intestate gave a written order to plaintiff’s agent for a monument to be erected upon her lot in the cemetery at the agreed price of $100, the same to be completed between that date and June 30, 1900, unless unforeseen causes should prevent, and in that event as soon thereafter as practicable. It was to be set upon a foundation to be erected by her. The contract was approved by the plaintiff on May 14th, of which Mrs. McClung was notified, and at the same time the monument was ordered to be made at the quarry. The latter part of June the plaintiff notified her to get the foundation ready, in response to which she wrote him that he need not bring that monument, as it did not come according to agreement. On July 5th plaintiff replied, stating that the monument was well under way, and he could not allow her to countermand her order; that it would be delivered as soon as completed, and would be strictly according to contract, and she was requested to have her foundation built as soon as possible. In response to this she wrote:

“You have not done according to agreement at all. You was to have it up by the 30th of June at the farthest. We are not obliged to wait your motion, so, if you bring it,-you may take it back.”

The plaintiff had the monument completed and set up upon a foundation erected by himself. This action was brought to recover the contract price and $1.50 for the foundation, with interest from August 23, 1900.

It was shown that the delay was caused by unforeseen circumstances. No complaint was made of the workmanship, which was such that the monument could not be used for any other purpose. The defendant claims that the plaintiff, upon receipt of Mrs. McClung’s letter, had no legal right to complete the contract and recover the price; that his only remedy was to recover in damages for a breach of the contract. Plaintiff, on the other hand, claims that it was competent to treat the contract as performed, and that he is entitled to recover the contract price upon the common counts.

It is undisputed that defendant unqualifiedly renounced this contract before the monument was completed, and forbade its completion and erection upon her premises. Many authorities hold that she had the right to do this, and thereafter plaintiff’s right of recovery would be limited to damages for the breach of the contract involved in the renunciation. In 2 Mechem, Sales, § 1091, the author says:

‘ ‘ The law is well settled that a party to an executory co'ntract may always stop performance on the other side by an explicit direction to that effect, though he thereby subjects himself to the payment of such damages as will compensate the other for the loss he has sustained by reason of having his performance checked at that stage in its progress.”
“The contract is not rescinded, but broken; and, while the other party has the fight to deem it in force for the purpose of the recovery of his damages, he is under no obligation, for that purpose, to tender complete performance, nor has he the right to unnecessarily enhance the damages by proceeding, after the countermand, to finish his undertaking.” Id. § 1092.

This subject is discussed in the case of Hosmer v. Wilson, 7 Mich., at page 305 (74 Am. Dec. 716), where Mr. Justice Christiancy says:

“And it is certainly very questionable whether the party thus notified has a right to go on after such notice to increase the amount of his own damages. In Clark v. Marsiglia, 1 Denio, 317 (43 Am. Dec. 670), it was held he had no such right, and that the employer has a right (in a contract for work and labor) to stop the work, if he choose, subjecting himself to the consequences of a breach of his contract; and that the workman, after notice to quit work, has no right to continue his labor, and recover pay for it. This doctrine is fully approved in Derby v. Johnson, 21 Vt. 21.”

Mr. Justice Christiancy adds that:

“This would seem to be good sense, and therefore sound law; and it would seem that any other rule must tend to the injury, and in many cases to the ruin, of all parties.”

In the case of Danforth v. Walker, 37 Vt. 244, the court said of a similar case:

“While a contract is executory, a party has the power to stop the performance on the other side by an explicit direction to that effect, by subjecting himself to such damages as will compensate the other party for being stopped in the performance on his part at that point or stage in the execution of the contract. The party thus forbidden cannot afterwards go on and thereby increase the damages, and then recover such increased damages of the other party.”

See, also, Butler v. Butler, 77 N. Y. 472 (33 Am. Rep. 648); Clause v. Printing-Press Co., 118 Ill. 612 (9 N. E. 201).

We are cited by plaintiff’s counsel to the case of Black v. Herbert, 111 Mich. 638 (70 N. W. 138), as a case on all fours with the present case; but we think it is readily distinguishable. In that case, after renunciation the parties met by appointment, and the plaintiffs were permitted to alter and set up the monument. It became, therefore, a question for the jury whether or not the contract had been performed. Renunciation must be more than mere idle talk of nonperformance; it must be a distinct, unequivocal, and absolute refusal to receive performance or to perform on his own part. 2 Mechem, Sales, § 1087. The party attempting to renounce may withdraw his renunciation and have the contract performed (Id. § 1090), and it would seem that the defendant in that case did so.

There are only two theories upon which the common counts could be relied upon in this case: First, upon the theory that the contract had been performed, and that the contract price was therefore recoverable; and, second, for the work and material used in the foundation built by the plaintiff. The undisputed facts show that the contract was not performed on receipt of the renunciation, and there could be no recovery for the erection of the foundation, because the plaintiff was never requested to build it, but,- on the contrary, was prohibited from doing anything further in performance of the contract. The only redress that the plaintiff would be entitled to recover would be damages for the breach of the contract if renunciation should be found to be unwarranted, which does not appear.

It follows that the judgment must be affirmed.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    KRIMMEL v. EDISON ILLUMINATING CO.
    Master and Servant — Saee Place to Work — Duty to Inspect.
    Where an experienced lineman, whose duty it was to inspect poles before ascending them, is killed by the falling of a rotten pole, and the company did not know of the defect, and had no - reason to suppose there was any, and there is no evidence of a more practical system of inspection than the one it was his duty to make, the rule as to a safe place to work does not apply, and the lineman assumed the risk by his contract of employment.

      Error to Wayne; Carpenter, J.
    Submitted April 25, 1902.
    (Docket No. 120.)
    Decided May 19, 1902.
    Case by John Krimmel, administrator of the estate of Henry Krimmel, deceased, against the Edison Illuminating Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      jEdward H. Kennedy, for appellant.

      Keena & Lightner, for appellee.
   Moore, J.

Henry Krimmel was a lineman in the employ of defendant. June 30, 1899, a pole upon which he was at work broke, and he received injuries from which he afterwards died. This suit is brought to recover damages for his death. The trial judge directed a verdict in favor of defendant. The case is brought here by writ of error. The only question involved is whether the case should have been submitted to a jury.

The record discloses that plaintiff’s intestate was nearly 21 years of age, and had been in the employ of defendant nearly 4 years. The last year his work was that of lineman. Prior to October, 1895, the Peninsular Company, which company the defendant succeeds, had its wires upon a cedar pole near the corner of State street and Woodward avenue. A street railway was constructed in State street, and the street, between curb and curb, had been widened. The railway company strung its wires upon hollow, wrought-iron poles, about 22 feet high, and about 6 inches in diameter. When the street was widened, the cedar pole would not be near the curb; and, to get rid of some of the poles, the board of public works required the electric-light companies and the street-railway companies to join in the use of poles at certain locations, one of which was near State street and Woodward avenue. In order to carry the electric wires safely across Woodward avenue, it was necessary to make the pole higher, so that these wires should not come in contact with the trolley wires.

In October, 1895, the foreman of the Peninsular Company went to Vinton & Co., and selected seasoned oak, which that firm had in stock, for about two dozen extensions of poles. The oak poles were turned at the bottom to a size that would enable them to fit snugly in the inside of the wrought-iron poles, with a shoulder upon them that rested on the top of the wrought-iron poles, and projected beyond the shell of the iron, which projection, it was expected, would keep out all water from the joint so made. The pole was then painted black. The pole in question was extended 9 feet 11 inches above the wrought-iron pole, and toward its upper end carried two crosspieces, which, in turn, carried wires.

Upon the day of the accident, Mr. Krimmel ascended the pole, had thrown one leg over the cross-piece, and was proceeding with his work, when the-'wooden part of the pole broke just below the top of the wrought-iron portion of the pole, and he was precipitated to the pavement below. When the pole was examined after the accident, it was found to be affected with dry rot. No inspection of these poles had been made previous to the accident, except what had been made by the linemen in the course of their work. The testimony is that it was part of the duty of the linemen to inspect the poles and wires, and if the defect is such that, with the material they have at hand, they can fix it, it is their duty to do so, and, if they cannot fix it, to report the defect to the office. The testimony is that no defect in this pole was ever reported, and the company had no knowledge of any defect in this pole until the time of the accident. It was also in testimony that the practical way to inspect the pole, and determine whether it was safe or not, was for the lineman, before leaving the iron portion of the pole, to reach up and shake the wooden portion of the pole, and that by so doing he could tell whether it was safe for him to go upon the pole; that the only other way to make an inspection was to lift the wooden portion out of the iron post, which was a very troublesome thing to do, on account of the wires being attached to the pole; that, after the accident, an inspection of this character was made of the other poles, and none of them were found to be defective, and no other accident of this kind had ever occurred. It was not shown, by any of the witnesses that Mr. Krimmel, after reaching the top of the iron post, made any test of this pole before going up the wooden portion of it.

It is insisted by counsel for plaintiff that the master must provide the servant with a reasonably safe place to work, and must keep it in a reasonably safe condition, and must, from time to time, make an adequate inspection, and that he cannot escape responsibility by delegating the duty of inspection to an employé, and that as defendant made no inspection, and the pole was decayed, the defendant was liable; citing Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572); Ouellette v. Alkali Co., 129 Mich. 484 (89 N. W. 436); Essex County Electric Co. v. Kelly, 60 N. J. Law, 306 (37 Atl. 619); and San Antonio Edison Co. v. Dixon, 17 Tex. Civ. App. 320 (42 S. W. 1009). The rule as to the duty of the employer is well settled, but the trouble comes in the application of the rule in a given case. In none of the cases cited by counsel was it shown, as in this case, that it was the custom of the company to have the inspection made by the person injured, before he entered upon his work, and that it was part of his duties to make the inspection. In the case of San Antonio Edison Co. v. Dixon, supra, it was found as a fact by the trial judge that by the exercise of ordinary care, and by testing the pole in the ordinary way, the company could have learned of the defect. In Essex County Electric Co. v. Kelly, supra, it was not shown there was any duty of inspection upon the part of the employé, and there was evidence to show that a proper inspection would have disclosed the defect which caused the injury.

The circuit judge was of the opinion:

“There was no testimony that the defendant knew of this defect. Its opportunity for knowledge was no greater than that of Krimmel himself. Krimmel had been a lineman for a year, as I understand. He had been employed in training for that service for two or three years longer. He was just as well acquainted, and probably more so, with the appearance of this pole, than the Edison Company. In other words, this defect was just as much unknown to the Edison Company, who had been in possession of the pole only a year, as it was to Krimmel; so that the question is whether he could say that the Edison Company should have known of this defect, — a defect of which both he and they were ignorant. That depends upon whether he was in a position to say that the Edison Company should have made an inspection, and satisfied themselves this pole was all right, and whether he had a right to say,
‘ I could rely upon your having made an inspection, and I was not obliged to take the chances of that hidden defect myself.’
.“Sucha rule is applicable in a great many classes of cases, but the question is whether it is applicable here. I do not think it is. You will remember that this post which was defective, and which fell, was in the top of an iron pole, 22 feet from the ground. It is obvious that there could be no effective inspection from the ground. It is obvious that there could be no inspection without some one climbing that iron post at least 22 feet. That is obvious to you, and it must have been obvious to Krimmel. Krimmel knew, then, that the only inspection that could be made would be made by climbing it; and who were the ones that would make that inspection, if it were made? Manifestly, no one but the linemen themselves. Now, of course, if they had been seeking to devise a system of inspection, they would have said, ‘Well, we will go out today and inspect these posts, and send men out for no other purpose than the making of an inspection.’ In that case, of course, while acting as inspectors they would be taking just such risks as inspectors would take. Another way would be to say that ‘inspection will be made when you do your work.’ We are not shown just how often these men had occasion to climb these poles. Manifestly, it was not a matter of everyday occurrence. They went up there when they had to do something with the wires. Now, what they did do in this case, not so much by express notice, but by custom, — and by custom, too, which, it seems to me, Krimmel was bound to know, — was to say, in effect, that ‘ inspection will be made when you do your work.’ I do not see how Krimmel could have lost sight of this. I don’t think he did. So that Krimmel, it seems to me, was by this custom — a custom of the day’s business, of which he must have known- — charged with the duty of making the inspection himself. He knew that before he climbed the pole no one went up before him to-inspect for him and report. He must have known that he never had known of any such inspection, because none had ever been made. So that it seems to me he must have known that that duty was not imposed upon any other official, but rested upon himself. In other words, he was charged with a duty of making an inspection by the circumstances of the case, and by the custom in vogue in the business of the company. That being the case, it seems to me it disposes of everything here. No matter whether that custom was a good custom or a bad custom, it was a custom known to him, and assented to, under the law, by him, and by remaining in the employment.”

In Flood v. Telegraph Co., 131 N. Y. 603 (30 N. E. 196), it is said:

“He [the intestate] knew precisely how the defendant inspected its poles, and the arms on them, and that it was not its custom to cause the arms on the poles to be inspected by some one climbing up the poles; and hence, as to him, carelessness in not inspecting the arms cannot be attributed to it. He knew that no one knew the condition of the arm which broke better than he did; and no one, in fact, knew better than he its sufficiency to bear his weight. If he gave the matter a thought, he knew that he must rely upon his own judgment in placing his weight upon the arm; but, before placing his weight thereon, he ought to inspect it, and see if it was sound, and strong enough to hold him, and he had no right to rely upon the judgment or inspection of any other person. Under such circumstances, it is impossible to perceive how the death of the intestate can be charged to the defendant.”

The case of Roberts v. Telephone Co., 166 Mo. 370 (66 S. W. 155), was one where the plaintiff, a lineman in defendant’s employ, fell by reason of the breaking of a cross-arm upon which he worked in the line of his employment. The linemen were expected to make any inspection of the poles, cross-arms, etc., which was had; and it was held that, under such facts, the rule as to safe place to work did not apply. The court quotes at. length from the Flood Case, and cites other decisions. After showing that the linemen were expected to look after the poles, and that they knew that no other inspection of them was had, the court said:

“This case is clearly distinguishable from the cases cited and relied on by the plaintiff, in this: That in those cases the servant injured was not charged with the duty of ascertaining and repairing the defects in the appliances, but was using appliances furnished him by the master for use in the ordinary course of his employment, while in this case the plaintiff was charged with the duty and engaged in the work of inspecting and repairing the master’s appliances. The plaintiff therefore assumed, by his contract of employment, all the risks incident to the performance of the work upon which he was engaged. The accident was caused by one of those risks. The plaintiff therefore has no claim against the defendant.”

See, also, Bergin v. Telephone Co., 70 Conn. 54 (38 Atl. 888, 39 L. R. A. 192); McIsaac v. Lighting Co., 172 Mass. 89 (51 N. E. 524, 70 Am. St. Rep. 244); Brennan v. Railroad Co., 93 Mich. 156 (53 N. W. 358).

In this case it is not shown that any system of inspection was more practical than the one it was the duty of the deceased himself to make. It is hot shown the situation was such that defendant had any reason to suppose there was any defect in the pole, nor that anything it could do would make apparent to it what would not be apparent to deceased, had he done what it was his duty to do.

Judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.


author: Montgomery, J.

text:
    PEOPLE v. SCOUTEN.
    Statutory Rape — Evidence oe Penetration.
    In a proseeution for having carnal intercourse with a female under 16 years of age, penetration maybe shown by the testi-, mony of the prosecuting witness that the respondent had sexual intercourse with her, and the testimony of a physician ' who made a physical examination.
    Error to Osceola; McAlvay, J.
    Submitted May 8,1902.
    (Docket No. 154.)
    Decided May 19, 1902.
    Albert Scouten was convicted of statutory rape, and sentenced to imprisonment in the State prison at Jackson for six years.
    Affirmed.

      Charles A. Withey, for appellant.

      B. N. Savidge, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of having carnal intercourse with a female under the age of 16 years, and brings the case here for review upon a single question. It is contended that there is no sufficient proof of penetration. The rule is laid down in 1 McClain, Cr. Law, § 450, that no particular form of words on the part of the prosecuting witness is necessary in testifying to the fact of penetration; that her statement that the defendant had full connection or sexual intercourse with her is sufficient, if the jury therefrom believe that the penetration was effected. The complaining witness in the present case testified that the respondent had sexual intercourse with her. There was also testimony of a physician, who made an examination of the parts, and found that the hymen had been ruptured, and a relaxed condition of the vagina. He also testified that frequent sexual intercourse with an adult male would cause the condition which he found.

We think the rule stated in McClain on Criminal Law is reasonable. It is true, the fact of penetration must be proved, although any penetration, however slight, is sufficient. But it may be proved, as any other fact is proved, by circumstantial evidence, or by one who witnessed the act, but who is unable to testify in terms to the actual fact of penetration. See Brauer v. State, 25 Wis. 413. The testimony of the physician, showing the condition of the parts, is an important piece of evidence as bearing upon the question of fact. See Brauer v. State, supra, and cases cited.

The conviction will be affirmed.

Hooker, C. J., Moore and Grant JJ., concurred. Long, J., did not sit.


text:
    PEOPLE v. VAN PELT.
    1. Statutes — Repeal.
    Where the provisions of an aot were not repeated in an act revising and amending the laws relating to the same subject, but were expressly saved thereby, a repeal of the latter leaves ■ the original act in force.
    2. Same.
    An act revising and amending certain laws, and repealing inconsistent acts, does not affect statutes which are omitted, and not repugnant to its provisions.
    3. Same — Shipping Game Out oe State. '
    Act No. 217, Pub. Acts 1901, providing that all game transported under cover shall be plainly marked on the outside of ' the package with the names of the consignor and consignee, point of billing, and destination, is not inconsistent with, but supplementary to, Act No. 196, Pub. Acts 1893, prohibiting the transportation of game from the State, and hence does not repeal the latter act.

      4. Property in Game — Constitutional'Law.
    A prosecution under section 2 of Act No. 196, Pub. Acts 1893,— a statute for the protection of game, — does not infringe .the privileges and immunities granted to citizens by the Federal Constitution, as game is the property of the State, and it may make such restrictions for its protection as it deems best.
    5. Same — Seizure op Game — Due Process op Law.
    In a prosecution for having in possession wild ducks with intent to ship them beyond the limits of the State, it is unnecessary to determine whether or not the proceeding authorized by the statute for the seizure of the ducks is due process of law.
    Error to Wayne; Rohnert, J.
    Submitted May 8, 1902.
    (Docket No. 147.)
    Decided May 19, 1902.
    William Van Pelt was convicted of a violation of the game laws, and sentenced to pay a fine of $25 and costs.
    Affirmed.

      F. T. Wood, for appellant.

      Ormond F. Hunt, Prosecuting Attorney, and Louis O. Wurzer, Assistant Prosecuting Attorney, for the people.
   Montgomery, J.

Defendant was convicted of having in his possession and under his control wild ducks, with intent to ship them beyond the limits of the State. The complaint was made under section 2 of Act No. 196 of the Public Acts of 1893, being 2 Comp. Laws, § 5805. The defendant, by his counsel, contends that Act No. 196 of the Public Acts of 1893 has been repealed by subsequent legislation.

In 1897 the legislature passed Act No. 159 (2 Comp. Laws, § 5760 et seq.), entitled “An act to revise and amend the laws for the protection of game.” This act contained a provision that “all other acts and parts of acts in conflict with or inconsistent with the provisions of this act are hereby repealed; but nothing contained in the provisions of this act shall be construed in any wise to repeal .or abridge any of the provisions of Act No. 196 of the Pub-lie Acts of 1893.” In 1901 the legislature passed Act No. 217, entitled “An act to revise and amend the laws for the protection of game and birds.” In the repealing section various statutes are named and repealed, among which is Act No. 159 of the Public Acts of 1897; and a general provision reads, “All other acts and parts of acts in conflict with or inconsistent with the provisions of this act are hereby repealed.” Act No. 196 of the Public Acts of 1893 was not, in-terms, repealed.

It is contended, however, that the effect of repealing Act No. 159 of the Public Acts of 1897 was to repeal Act No. 196 of the Public Acts of 1893, under the doctrine announced in Moody v. Seaman, 46 Mich. 74 (8 N. W. 711), where it was held that where a statutory provision was repeated, without change, in what purported to be an amendatory act, and the latter was afterwards repealed, the original provision was repealed also. We think this is not at all in point, and that the rule is wholly inapplicable to the question here involved. The provisions of the act of 1893 were not repeated in the act of 1897, nor do they derive their force in any way from the later enactment. On the contrary, by express terms it was declared that the act of 1897 should not be construed as a repeal of the act of 1893. The effect was to leave the act of 1893 in force, and having the same force, precisely, as if the act of 1897 had not been adopted.

Whether the act of 1901 operates as a repeal of the act of 1893, therefore, must depend upon whether its provisions are inconsistent with those of the earlier act. In the case-of People v. Huntley, 112 Mich. 569 (71 N. W. 178), we laid down the rule that a revisal, under a title similar to the present, repealing all acts repugnant to the provisions thereof, does not affect statutes which are omitted, and which are not repugnant to its provisions; and that the rule of implied repeal is clearly inapplicable where the revising statute declares what effect it is intended to have upon the former law, as where it declares that it shall operate as a repeal of such provisions of the earlier laws as are inconsistent with it, as this is regarded as a decíaration that it shall repeal only such provisions, and leave unaffected such as are not inconsistent.

It is contended that the act of 1901 is inconsistent with the act of 1893, for the reason that it provides that all game or game birds transported under cover shall be plainly marked on the outside of the package such game or game birds are shipped in, with the name of the consignor and the consignee, the initial point of billing, and the destination, together with an itemized statement of the quantity of game or game birds contained therein. Can this provision be said to be inconsistent with the provisions of the act of 1893 prohibiting the transportation of game from the State ? We think not. On the contrary, we agree with counsel for the people that these provisions are, rather, supplementary to the provisions of the act of 1893, and provide a means to aid the officers in detecting an infringement of the law. It is lawful to ship within the State, and, if the packages are marked for shipment within the State, it would furnish some evidence, at least, to the officers, that no further investigation would be required; and, if the legislature deemed that it was no offense to ship game out of the State, it is difficult to conceive why it should have been at all necessary to provide for thus plainly marking packages for shipment, as the public authorities would be in no way concerned with the question of the destination of such shipment.

It is contended that, as applied to the present case, this prosecution infringes the privileges and immunities granted to citizens by the fourteenth amendment to the Federal Constitution. The argument is that this game was taken on premises belonging to defendant, and that he is therefore privileged to do with it what he chooses. The fallacy in the argument consists in the assumption that the person who may shoot game has an absolute property right in the dead animals. It has frequently been held that game is the property of the State, and that the State has a right to make such restrictions as to its taking and use as it sees fit. See American Express Co. v. People, 133 Ill. 649 (24 N. E. 758, 9 L. R. A. 138, 23 Am. St. Rep. 641); Geer v. Connecticut, 161 U. S. 530 (16 Sup. Ct. 600).

It is further contended that the proceeding authorized by this statute is not due process of law. All that is before this court upon defendant’s appeal is his conviction for a misdemeanor. It is not essential that we determine whether the seizure of the ducks was or was not a lawful act; but, upon that subject, see the case of Osborn v. Charlevoix Circuit Judge, 114 Mich. 655 (72 N. W. 982).

We find no error in the case. The conviction will be affirmed.

Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit.


author: Long, J. Montgomery, J.

text:
    ALDERTON v. WILLIAMS.
    1. Promissory Notes — Possession by Indorser — Payment.
    Where the makers of a promissory note admit that they have not paid it, the possession of the note, and its production on trial, by one who indorsed it before delivery, is prima facie evidence that he paid it in full at maturity.

      2. Same — Renewals—Recoupment Between Joint Makers.
    An indorser of promissory notes to the amount of $5,000 paid the notes at maturity, and brought an action against the makers to recover the full amount paid by him. The notes were renewals of others indorsed by plaintiff before delivery in pursuance of an agreement whereby plaintiff was to indorse notes to the amount of $20,000 for the purpose of establishing the makers in a certain manufacturing business, in consideration that they would purchase goods of him. Held, that, as it was necessary for plaintiff to show the contract in order to maintain his action, the defendants could recoup damages for his failure to indorse notes to the amount agreed upon. Long, J., dissenting.
    Error t.o Clare; / Dodds, J.
    Submitted October 10, 1901.
    (Docket No. 43.)
    Decided June 3, 1902.

      Assumpsit by George A. Alderton against Charles E. Williams and Lafayette C. Williams upon promissory notes. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Reversed.

      George J. Cummins ( C. W. Perry and C. H. Rose, of counsel), for appellants.

      James H. Davitt, for appellee.
   Long, J.

This action is in assumpsit, commenced by writ of attachment, to recover upon six promissory notes given by the defendants to the Commercial National Bank of Saginaw, and indorsed by plaintiff. The declaration is on the common counts, with copies of notes attached, and notice that they would be given in evidence under the money counts. Defendants pleaded the general issue, and gave notice of recoupment, the notice being as follows:

“That the several notes upon which the action is based, copies of which are attached to the declaration in this 'cause, were executed by these defendants pursuant to a certain contract made and entered into between the said plaintiff and these defendants on or about August 1,1898, which said contract was, in substance .and effect, as follows, and arose under the following conditions, that is to say: That on and prior to August 1, 1898, the said defendants were engaged in the business of manufacturing heading, and had in the village of Beaverton, Gladwin county, Michigan, a heading mill, well equipped for and used in said business, and of the value of, to wit, $5,000; that the heading business so carried on by said defendants was of great profit to said defendants, and that they were making in said business large sums of money monthly, viz., the sum of $500 per month; that on or about August 1, 1898, the said plaintiff represented to said defendants that an arrangement could be made to the material benefit and profit of both said plaintiff and said defendants if the said defendants would abandon their said business of manufacturing heading at their said mill at Beaverton, and remodel the said mill into a stave mill, ■and enter upon the business of manufacturing staves; the cost and expenses of so remodeling said heading mill, and of purchasing materials and supplies for such stave business, and getting the said stave business established, being estimated to be the sum of about $20,000; and, upon such representations so made by said plaintiff, it was then and there mutually agreed between the said plaintiff and the said defendants that the said plaintiff should and would indorse the notes of the said defendants to the amount of $20,000, as the same was needed for the purpose of installing said stave mill and establishing in said stave business; ' that the said defendants were to use the money so obtained upon said notes in tearing down and remodeling the said heading mill, and in putting up a new stave mill, and in manufacturing staves. It was further agreed that the said defendants were to' have a store in connection with their said mill, and were to pay for all supplies, timber, and labor used in said stave business out of said store as far as possible, and that the defendants were to look after the management of said business and the manufacturing of said staves; that the said business was to be carried on at Beaverton, Gladwin county, Michigan; and that the defendants were to purchase their stock of groceries and. supplies for their said store from said plaintiff, who was interested in a wholesale grocery store in Saginaw, Michigan,, and was doing a wholesale grocery business under the firm name of George A. Alderton & Co. It was further agreed that said business of manufacturing staves should be carried on by said defendants as long as they could get timber in that locality. It was further agreed that the said plaintiff, in addition to the profits derived from the sale of the said groceries and supplies which he should make to the defendants under said agreement, was to have a reasonable compensation for his indorsement on said notes.
‘ ‘ The said defendants will further give in evidence and ' insist on the said trial that they have fully performed the said agreement according to the terms and true intent and meaning thereof in all things on their part to be fulfilled and performed, but that the said plaintiff did not nor would fulfill or perform the said agreement on his part, but has wholly failed so to do in this, to wit: That after said defendants had entered upon the performance of said contract by fitting up their said mill at Beaverton with proper machinery and appliances, and remodeling the same from a heading mill to a stave mill, purchasing a large amount of timber supplies, and all things necessary to successfully carry on their part of said contract, and after the said defendants had expended for such purpose not only the entire proceeds of the said notes upon which this action is based, but also all of the individual funds of said defendants which they were able to raise to put into said business, the- said plaintiff refused to indorse any more notes for the said defendants, or to assist the said defendants in procuring any further funds for the prosecution of said business; that, by reason of such refusal of said plaintiff to indorse the notes of the defendants pursuant to the terms of said agreement, the defendants were wholly unable to continue the business of manufacturing staves, and were obliged to close up their said business, and dispose of their said stave mill and of their stock of materials, supplies, machinery, etc., on hand, for the best prices obtainable for the same, to the great damage and loss of the defendants, whereby the said defendants have been greatly injured and have sustained damages to a large amount, to wit, the sum of $10,000.
“That by reason of the action of said plaintiff in the premises in inducing these defendants to remodel their said heading mill and abandon said business of manufacturing heading for the purpose of engaging in the stave business, and then refusing to carry out his contract or agreement to indorse the notes of the said defendants to raise the funds necessary for the prosecution of the said stave business, the said defendants have been and were deprived of the profits which they would have made in the said heading business, amounting to the sum of $500 per month for the period of at least 10 months, such total loss of profits amounting in all to a large sum, to wit, the sum of $5,000; to the damage of said defendants in the sum of, to wit, $5,000.
“That at the time when the said plaintiff so refused to carry out his said contract, whereby the said defendants were obliged to abandon the said stave business, the said defendants had on hand a large quantity, to wit, 1,000 cords, of bolts which they had purchased or manufactured for the purpose of manufacturing the same into staves, and, if the said plaintiff had complied with his said contract, the said defendants would have manufactured .the said bolts' into staves, and would have realized large profits therefrom; and, by reason of the action of the said plaintiff in refusing to carry out his said agreement, the said defendants were prevented from manufacturing said bolts into staves, and from making the profits which they otherwise would have made therefrom, to wit, the sum of $1,500, thereby sustaining damages to a large amount, to wit, to the sum of $1,500.
“That, at the time said plaintiff so refused to carry out his said contract, the said defendants had on hand a large quantity, to wit, 500,000 feet, of logs suitable to make bolts to be manufactured into staves, and which they had purchased and gotten out for that purpose; and if said plaintiff had complied with his said contract the said defendants would have manufactured the said logs into staves, and would have realized large profits therefrom; but that, by the action of the said plaintiff in refusing to carry out his said agreement, the said defendants were compelled to have the said logs manufactured into lumber, for which they were not suitable, in order to realize anything out of the same, and were thus deprived of the profits which they would have made could they have manufactured the said logs into staves, to wit, the sum of $3,000, and thereby suffered damages to alargo amount, to wit, the sum of $3,000.”

The cause came on for trial before a jury. Plaintiff’s, counsel, in his opening to the jury, stated:

“These notes, six in number, which, without interest, amount to $5,000, were made payable' to the Commercial National Bank of Saginaw. They were signed by the defendants, Williams Brothers, and on the back of each note was written, ‘George A. Alderton.’ The proof will show that, when the notes fell due, Williams Brothers, whose duty it was to pay them, failed to do so, and the bank demanded payment of Mr. Alderton by reason of his signature on the back of the notes, and he was compelled to take them up by paying the amount due to the bank. ”

The notes were then offered in evidence without objection. Counsel for defendants then made his opening statement to the court and jury, substantially as follows:

“If we show to your satisfaction that growing out of this arrangement of Mr. Alderton with us to furnish indorsements to the amount of $20,000 to enable the defendants to carry on this buisness, and that it was necessary for him to do that to put them on their feet to manufacture staves, and that, because of the failure of him to carry out his contract, these losses were sustained, we shall ask to recoup these damages which these defendants sustained in consequence of their business being broken up, and to sell as best they could, to recoup that against whatever would be Mr. Alderton’s due on the notes which he paid and which he had indorsed; and, if that damage shall equal these notes, it shall be offset against the notes. If it shall amount to more, then we shall expect a verdict for whatever damages they sustained over and above the amount of the notes in question.”

Defendants then offered evidence to show the facts set up in the notice of recoupment. Counsel for plaintiff objected to the introduction of this testimony, for the reason that the notice of recoupment fails to show any breach of the contract sued upon so as to become a matter of recoupment. The court held that the contract sued upon by the plaintiff was separate and distinct from the one set up in the notice, and directed verdict for plaintiff for the amount of the notes and interest, the total being $5,242.39. Defendants bring error. But two questions are raised: (1) Was it admitted or proved that plaintiff paid the notes before suit was brought? (2) Were the defendants entitled to recoup damages under the notice ?

I am of the opinion that payment of the notes must be presumed from the fact that plaintiff had possession of them, and produced- them on the trial. It is admitted that the proceeds of the notes were received by the defendants! It is apparent, therefore, that prior to their maturity the notes were delivered to and held by the bank, which was the payee. As to the payee the plaintiff was a joint maker, and as much bound to pay them at maturity as the defendants. It is admitted that the defendants did not pay them, and the plaintiff having them in possession and producing them on the trial is prima facie evidence that he paid them in full at their maturity, according to his obligation. In McGee v. Prouty, 9 Metc. (Mass.) 547 (43 Am. Dec. 409), it was held that the possession of a promissory note by one of the parties liable to pay it is prima facie evidence of payment, and he is to be treated as a bona fide holder, unless the contrary is made to appear. That court cited in support of this principle: Dugan v. U. S., 3 Wheat. 172; Baring v. Clark, 19 Pick. 220; Northampton Bank v. Pepoon, 11 Mass. 288. In 3 Rand. Com. Paper, § 1475, and 2 Daniel, Neg. Inst. § 1227, the same principle is laid down. In the last-named work it is said, “The possession of the note by. the maker is presumptive evidence that he has paid it. ”

It appears that the notes sued upon were renewals of former ones, which were given in pursuance of the con'tract mentioned in the notice of recoupment. The claim of the defendants is that the plaintiff agreed in this contract to indorse notes for them in the sum of 120,000, to enable them to carry on their business. It appears that he did indorse notes to the amount of $5,000, and then refused to indorse any more. The notes indorsed were discounted at the bank, and renewed from time to time. The notes sued upon are not the original notes so first given, but renewals of them; and it is the contention of counsel •for plaintiff, and the court below so held, that the plaintiff’s action was not upon the same contract that defendants seek to recoup against.

The notes sued upon were renewals of former ones, and bear date December 18, 1899, December 19, 1899, December 26, 1899, January 18, 1900, February 20, 1900, and March 2, 1900, and form no part of the original contract. Each note rested upon its own consideration, and was a complete and separate contract. The plaintiff was not to furnish money to defendants, but only to indorse for them, leaving them to obtain money, if they could, upon the paper when indorsed, and to pay the notes when they became due. The law implies a promise on the part of the defendants to reimburse the plaintiff in case he had .to pay as conclusively as if a stipulation to that effect had been written in the notes themselves, and the contract so implied is no more open to dispute or variation than if it had been reduced to writing. It is well settled that no damages can be recouped except such as spring out of the contract upon which the suit is brought. Molby v. Johnson, 17 Mich. 382; Forrest v. Johnson, 100 Mich. 321 (58 N. W. 1005); Van Epps v. Harrison, 40 Am. Dec. 323 (s. c., 5 Hill, 63). As the notes sued upon are separate and distinct, and had separate and distinct considerations, from the contract set up in the notice of recoupment, and for the breach of which the defendants seek to recoup, I think the court was not in error in directing the verdict for plaintiff. The cases cited by defendants’ counsel ai;e not in conflict with this rule. In both Batterman v. Pierce, 3 Hill, 171, and Ward v. Fellers, 3 Mich. 281, the damages sought to be recouped grew out of the contracts sued upon.

. The judgment should be affirmed.

Montgomery, J.

I concur with Mr. Justice Long in holding that the presumption arising from plaintiff’s possession is sufficient, prima facie, to show the payment of the notes in question by him; but I am unable to agree with his conclusion that the defense of recoupment is not open in this case. The cases which he cites as sustaining his conclusion do not, in my judgment, support the holding. Molby v. Johnson, 17 Mich. 382, was a case in which distinct purchases of property were made. The horses in question were paid for in cash. On the same occasion additional articles of personal property were purchased, and a note given for a portion of the purchase price. The court held, in an action brought upon the note given for the purchase price of these distinct articles of personal property, that recoupment could not be had for damages sustained by reason of a false warranty of the horses sold. The case of Forrest v. Johnson, 100 Mich. 321 (58 N. W. 1005), is to the same effect. Van Epps v. Harrison, 40 Am. Dec. 314 (s. c., 5 Hill, 63), is not an authority upon the question; but the note to that case contains a citation to numerous cases which support the holding of Molby v. Johnson. “But,” quoting from the note, “althoughit is necessary that the plaintiff’s claim and the defendant’s damages should grow out of the same contract or transaction to admit of recoupment, all the stipulations on both sides need.not appear in the same instrument. They may appear in different instruments, or they may be in writing on one side and oral on the other. Thus, where the plaintiff sold certain standing wood to the defendants, which they were to have a certain time to remove, and guaranteed them against loss by fire from burning over adjacent fallow land, and took a note for the price, it was held, in an action on the note, that the defendants could recoup*damages for a destruction' of the wood by the fire guaranteed against;” citing Batterman v. Pierce, 3 Hill, 171, which is an instructive case. See, also, Sanger v. Fincher, 27 Ill. 346.

In the present case the plaintiff’s right to maintain this action upon the notes, both himself and defendants being makers, arises not alone from the fact of his having paid the notes, but out of the contract between himself and defendants, under which the indorsements were made. Reference to that contract is essential to determine the rights of the parties. The plaintiff’s action depends upon the contract, and, in my opinion, this being so, a recoupment of defendants’ damages, incurred by the plaintiff’s breach of the same contract, may be had in this action.

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

Hooker, O. J., concurred with Montgomery, J. Moore and Grant, JJ., took no part in the decision.


author: Hooker, C. J.

text:
    COWLEY v. SCHOOL DISTRICT NO. 3 OF HARRISVILLE TOWNSHIP.
    1. Schools — District Board — Teacher’s Contract.
    A school teacher can he employed only by the action of a district board at a meeting of the board. 2 Comp. Laws, § 4671.
    2. Same — Record of Meeting — Parol Evidence.
    In an action by a school teacher to recover on a contract signed by two members of the district board, evidence to show that such contract was authorized by the action of the board, and that the record as made by the director is not true, is inadmissible.
    Error to Alcona; Gonnine, J.
    Submitted November 20, 1901.
    (Docket No. 139.)
    Decided June 3, 1902.

      Assumpsit by Lillian C. Cowley against school district No. 3 of Harrisville township for the breach of an alleged contract of hiring as teacher. From a judgment for plaintiff, defendant brings error.
    Reversed.
    O. H. Smith, for appellant.

      Hall & Brockway, for appellee.
   Hooker, C. J.

The plaintiff’s action is brought to recover upon an alleged contract of hiring as a school teacher. She produced a contract in writing, signed by two members of the school board as it existed at the date of the contract, and offered proof tending to show that she held herself in readiness to perform the contract on her part, but was prevented by the school board. The defense relied on is that, although the contract bears the signatures of two of the members of the school board, they were not authorized to sign it by any action taken by the board at a meeting. The contract bears date the 30th day of June. Plaintiff applied for the school on May llth-, and on May ,12th Mr. Ferguson, one of ther members of the board, informed her that the board had decided to hire her, and Mr. Wilson, another member, intimated the same thing. She stated that:

“They said that the board had a meeting, and that I was hired at that meeting by two members of the board. Mr. Ferguson told me that.”

Mr. Briggs, the director, notified her to the contrary when informed of her claim. The director, Briggs, produced the record of the district, and said that it contained a record of all the meetings for the year, both of the board and electors. The following is an exemplification of the record of the meeting of May llth:

“ Meeting of the school board was called to order at 8 o’clock p. m., May llth, 1900. Present: Jas. Ferguson, De Witt Wilson, and C. C. Briggs. After looking over the house, it was resolved that the school-room be papered and painted, and Mr. Wilson was appointed a committee of one to have the same done in proper shape. The application of Miss Cowley for the next term of school was presented by Mr. Wilson, but no action was taken on the application. C. C. Briggs, Director.”

The next meeting was on July 14th, and the following is a copy of the record:

“July 14, 1900. The school board of school district number three was called to order at 8 o’clock p. m. by the chairman. Full board was present. Application of Miss Lillian C. Cowley was presented, and voted upon: Effrick, no; Briggs, no; and Wilson, yes. The application of one Frederick was presented and voted upon: Effrick, yes; Briggs, yes; and Wilson, no. The director was instructed to draw a contract for Mr. Frederick for nine months’ school at forty dollars per month. Moved by Mr. Briggs, and seconded by Mr. Wilson, that the director correspond with parties in regard to purchasing ten new desks. Moved by Mr. Briggs that Mr. Wilson be appointed a committee of one to get the school-house cleaned, and pay three dollars for same. Seconded by Mr. Briggs, and carried on motion. Board adjourned.
“C. C. Briggs, Director.”

It will be observed that Ferguson was no longer a member of the board, having been succeeded by Effrick, who was elected at the annual meeting held on July 9 th. The plaintiff sought to show that the statement in the record of May 11th, that no action was taken upon her application, was not correct, and that at such meeting two members — i. e., Wilson and Ferguson — expressed themselves as favoring her employment. Ferguson testified that they talked the subject over at the meeting, and those two agreed to hire her, and that Briggs, the director, said that “if we hired her he would have to sign the contract, — something to that effect,” — and that the record mentioned was not true. Briggs states that the record was written up correctly the next day. The plaintiff recovered, and defendant has appealed.

Counsel for the appellant states that the questions in the case are two:

“ 1. Can the record of the school board, made in considering the applications for hiring teachers, be contradicted ?
“2. Is it necessary that the official action of the school board in hiring a teacher, taken at a' regular meeting, be in the form of a vote or resolution ?”

The statute (2 Comp. Laws, § 4671) provides:

.“No act authorized to be done by the district board shall be valid unless voted at a meeting of the board. A majority of the members of the board at a meeting thereof shall be necessary for the transaction of business.”

It' has been explicitly held that a teacher could not be legally employed without official action as required by statute. Hazen v. Lerche, 47 Mich. 626 (11 N. W. 413). The record of the proceedings of the meeting, kept by the director, states that ‘ ‘ the application of Miss Cowley for the next term of school was presented by Mr. Wilson, but no action was taken on the application.” Parol proof was not competent to contradict the record in this proceeding. See 20 Am. & Eng. Enc. Law (1st Ed.), 511, and cases cited; Hall v. People, 21 Mich. 462; Stevenson v. Bay City, 26 Mich. 44; Ten Eyck v. Railroad Co., 74 Mich. 232 (41 N. W. 905, 3 L. R. A. 378, 16 Am. St. Rep. 633); Ludington Water-Supply Co. v. City of Ludington, 119 Mich. 487 (78 N. W. 558); Sweet v. Gibson, 123 Mich. 701 (83 N. W. 407).

The"judgment is reversed, and a new trial ordered.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.


author: Montgomery, J. Grant, J.

text:
    WILSON v. PARKER.
    Wills — Undue Influence — Sufficiency of Evidence.
    The testator was sick with cancer for two years, during which time three operations for its removal had been performed in a hospital. In the summer preceding his death, he declared that he expected his property would go to his heirs, with whom he had always been friendly. He had rooms in the basement of a building, where he did his own cooking, until about a month before his death, when he was taken to his aunt’s, and had the care of a nurse and a physician. A few days later, and while so weak that he could not eat solidfood, nor sit up all day, the proponent took him eight miles in the country, to proponent’s home. After nine days proponent brought him back to his room in the basement, and built a fire, where his will was prepared by a lawyer. He was then taken to his aunt’s, and was so weak that he had to be carried up the steps. Held, that the opportunity for the exercise of undue influence, with the fact that the will was largely in favor of the proponent, and the suspicious circumstance that he was taken to a cold room to have his will prepared, instead of to his relative’s, justified the submission of the question to the jury. Grant, J., dissenting.
    Error to Kent; Wolcott, J.
    Submitted December 10, 1901.
    (Docket No. 153.)
    Decided June 3, 1902.
    Abiel A. Wilson presented for probate the last will and testament of George Jerome Parker, deceased. The will was allowed in the probate court, and May Parker, Alice London, and Jane McKenzie appealed to the circuit. From a judgment there for contestants, proponent brings error.
    Affirmed.

      Wolcott & Perkins, for appellant.

      McKnight & McAllister, for appellees.
   Montgomery, J.

This is a contest over the probate of the will of George Jerome Parker. On the trial at the circuit the two questions of. undue influence and mental incapacity were submitted to the jury, and a verdict denying- probate of the will was rendered. The proponent brings error.

At the close of the testimony the proponent made a motion to withdraw the case from the consideration of the jury, and in this court contends that there was no evidence tending to show either mental incapacity' or undue influence.

As to the question of undue influence, it may be said that there was no direct proof that at the very time the will was executed any solicitation on behalf of the legatees was made. For evidence of undue influence we must look elsewhere. The immediate relatives of the deceased were Alice London and May Parker, nieces. There was testimony tending to show that the relations between the deceased and these nieces were friendly, and had always been so. The deceased was a farm laborer, who had accumulated about $3,500 through his labor and savings. About two years before his death, a cancer made its appearance upon his lip. He then had an operation, and the cancer was removed, which gave temporary relief. About a year later, another cancer appeared upon his hand. Another operation was performed, btífc, a short time afterwards, the disease manifested itself in a serious form in his right armpit, and it progressed so rapidly after its first appearance that within a few months he was taken to a hospital, where another operation was performed to l’emove the same.

For two years prior to his death he had a room in the basement of a building called the “Melrose Flats,” where he did his own cooking. During the summer prior to his death he had been in the habit of calling upon his friends in the country south of the city, and during this time he declared to some of his friends that he expected his property to go to his heirs, and had no intention of making a will. There is some testimony of other declarations inconsistent with this. In the latter part of October he became so bad that he was taken to the residence of his aunt, Jane McKenzie. At this time he had been sick two or three months, and was not in condition to do any work. He could hot use his right arm. jete was weak, and getting weaker every day, and had the attendance of a doctor nearly every day. He died on the 30th of November.

On the 3d of November proponent called at Mrs. McKenzie’s, and took Mr. Parker in his buggy, and conveyed him to his place in the country, some eight miles distant. At this time there was testimony tending to show that he was in such a condition that he had been unable for more than a week to keep anything on his stomach except whisky sling, that he could not eat solid food, and that for a week before he went to Wilson’s he had not sat up all day. When Wilson proposed his going, Mrs. McKenzie said that Mr. Parker was very weak, and suggested that it was a long ride out to Wilson’s place for so weak a man. Before Wilson took decedent away, he had had the attendance of one Andrew Wright as a nurse, who dressed his arm, put on his clothes, and assisted him up and down stairs. He had also had the attendance of a doctor.

On the 12th of November Wilson brought decedent back to the city, took him to his room in the basement of the Melrose Flats, built a fire, and left decedent there,' while he went to find some one to prepare a will. Judge Perkins was found, and visited the room where decedent was, and prepared the will in the presence of Wilson, and it was duly signed and witnessed. Decedent was then taken back to Mrs. McKenzie’s. Mr. Wright, his former attendant, was sent for and attended him. He was found in such a weak condition that he had to be carried upstairs, and the nurse remained with him until about midnight. The doctor was also called in. He continued from this time to grow worse, and died on the 30th of November following.

The will bequeathed to the two nieces $200 each. It gave to his aunt, Jane McKenzie, $500. It gave to the proponent, Wilson, $300, to Wilson’s wife $200, to Wilson’s son $100, and to three Huntley children $100 each; the Huntleys being relatives of Wilson. It provided for a monument, at a cost of $100, and made the proponent, Wilson, residuary legatee.

We have not attempted, and shall not attempt, a detailed statement, in this connection, of all the testimony bearing upon the question of decedent’s condition. The opportunity for the exercise of undue influence was certainly present, and, taken in connection with the fact that the will was made largely in favor of the proponent, under whose influence decedent was, together with the suspicious fact of his having taken him to this cold room in the basement of the Melrose Flats, instead of returning him to his relative’s, and having the will executed there, we think justified the submission of the question of undue influence to the jury. . As was said in Rivard v. Rivard, 109 Mich. 98 (66 N. W. 681, 63 Am. St. Rep. 566):

“Undue influence is largely a matter of inference from facts and circumstances surrounding the testator, his character and mental condition as shown by the evidence, and the opportunity possessed by the beneficiary for the exercise of such control.”

It is true that cases may be so clear that, even where opportunity and motive are shown, the court may be justified in withdrawing the question of fact from the consideration of the jury. But we do not find this such a case.

As to the question of mental capacity, Dr. William Clark, who was the attendant of the decedent before he went to the country and after he returned, in answer to the question:

“Then he was in that condition of mind, or body and mind, where he was easily influenced, carried away by the surroundings ?” replied :
“Yes, I think he might be influenced.
Q. You give that as your opinion as a physician, and knowing the man ?
“ A. Well, I don’t know as it is a medical question, but that is the opinion I have of a man in that condition, —he could be influenced by those who were kind to him. I have expressed an opinion in relation to Mr. Parker that his will would have been made in favor of some one else had he been in their charge at the time. * * * I told somebody, shortly after Mr. Parker died, that if Mr. Parker had been at Huntley’s, or at any other place instead of Wilson’s, they would probably have got his property had they done as Wilson did.”

It is true this testimony does not go the length of showing absolute mental incapacity. But there was testimony by other witnesses tending to show a want of mental capacity, if their testimony is held competent. It is contended, however, that some of the testimony offered upon this branch of the case was incompetent. ■ The question as to whether the opinions of the witnesses Woodard, Wright, and London were receivable rests upon whether a proper foundation was laid by a statement of facts within the knowledge of the witnesses respectively. Without reciting at length the testimony of these different witnesses, an examination of the record satisfies us that there was sufficient to justify the court in receiving the opinions of the witnesses. The criticism -as to the foundation goes rather to the weight of the testimony than to its admissibility.

The other questions presented do not require discussion.

The judgment will be affirmed.

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

Grant, J.

(dissenting). I think the record in this case is barren of any substantial testimony to justify the verdict of the jury in setting aside the will of Mr. Parker. Mr. Parker was a bachelor, and was under no obligation to his collateral heirs. He, however, remembered them all. He gave his aunt, Mrs. McKenzie, with whom he had lived for a short time, $500; to his two nieces $200 each; to the three Huntleys $100 each; to two others $100 each; to proponent $300; to his wife $200; and to his son $100. He provided $100 for a monument. He knew he was in debt, and provided for paying his debts. At the time of the trial of this case debts had been proven to the amount of $315. The bequests outside of any members of proponent’s family amounted to $1,500, to which add the debts already proved, and we have $1,815. The bequests to the three members of the proponent’s family were $600. If, therefore, we take out the expense of administration, the residuary legacy amounts to substantially nothing. It must have been apparent to the testator that his specific bequests, debts, and expenses of administration would include all his property. So far as there being anything unnatural about the provisions of the will, it was very natural for him to dispose of his property as he did. The Wilsons did not get the bulk of his property; on the contrary, they received less than one-third. In the light of these facts, I will now examine the testimony in regard to the execution of the will.

The mere fact that Mr. Parker visited the house of Mr. Wilson for a few days prior to the execution of the will is not alone sufficient proof of undue influence. Mr. Parker and Mr. Wilson were old friends, and the former frequently visited at the latter’s. Mrs. McKenzie testified that Mr; Wilson told her that, if she did not think it suitable for Mr. Parker to go out with him, he would not take him; that she replied she had no control over Mr. Parker, and if he thought he was able to go, and wanted to go, it was his business, and not hers. She further testified that the doctor knew, he was going. It was not unnatural, under the circumstances, that Mr. Parker should go first to his own rooms. The only evidence in the case is that it was at his own suggestion, in order to get some bedding to take to the house of his aunt, because he said he slept in a cold room; and he said to Mr. Wilson, “While we are there [at his room], why can’t I have the papers made out there?” and Mr. Wilson told him he could if he wished. Mr. Wilson built a fire, and then, at the request of Mr. Parker, went for an attorney by the name of Beckwith to draw the will. Mr. Beckwith was busy, and Mr. Wilson then went to Mr. Perkins, an attorney of reputation, character, and ability. Mr. Wilson came with Mr. Perkins, introduced him to Mr. Parker, and then left the room, and went out to feed his horse. When he returned Mr. Perkins was writing, and he asked if he should go out of the room, and Mr. Perkins replied, “No.” In this Mr. Wilson is corroborated by Mr. Perkins, who said that while he was drawing the will Mr. Wilson was in and out of the room. Mr. Perkins relates what occurred as follows:

“ Mr. Wilson told him what he had brought me for, and shortly after he went out. I arranged the table for drafting the will, and had a chat with Mr. Parker about his general health and condition, and then I asked him what he wanted to do with his property, how he wanted his will made, and he went on to tell me, and I made a memorandum of the different legacies he desired to make, and, after I had completed it, then I drew off the will in the extended form in which it appears here. When he had got a number of legacies mentioned, — perhaps the fourth or fifth legacy mentioned, in the will, — Mr. Parker said, ‘Now, how much does that figure up?’ and I made a computation and told him how much had been disposed of, and then he made several more, — provided for several more legacies. Then I asked him if he wanted anything done about his monument or stone to mark his grave, and he said he would like to make a provision of that sort; that he would like to have a, stone put out in the country cemetery where he was to be laid, and that there should be inscribed upon it also, I think, the name of a brother, who had died before; and he wanted Mr. Wilson named as the executor; and said, also, if there was anything left he would like to have it go to Mr. Wilson. No other suggestion than the one which I have stated was made by me or by any person in relation to the disposal of his property. I found him sitting up when I went there, in a chair. I asked him how he was feeling. He said he didn’t have any appetite. He says, ‘ I think if I could get back my appetite I would be all right; but,’ he says, ‘as it is, I am feeling rather weak. ’ He was able to get about. Got up and walked about the room without assistance from anybody, and talked right along in a natural tone of voice. He was not a rapid talker, but still he did not hesitate. I did not notice anything unusual about his method of talking, and I simply looked upon him as a man who was an invalid. I am speaking about his appearance. He appeared to be rational, and fully to understand what he was about. He had no memorandum at all that he referred to or used to aid him in giving me instructions to draw the will.”

In this case, therefore, we have nothing to indicate any undue influence on the part of Mr. Wilson, except the bare fact that he had an opportunity to influence him. He emphatically denies any influence whatever; and the fact that he chose to remember so many of his relatives and friends in his will, giving to his aunt, with whom he was then living, the largest amount, seems to me sufficient to rebut any presumption of undue influence, if the mere fact of opportunity be sufficient to justify such presumption. I do not think there was any evidence of undue influence to submit to the jury.

Dr. Clark, his physician, who had attended him during his illness, and up to the time of his death, testified as follows:

“ I continued to treat him up to the time of his death, November 30th. I think Mr. Parker was a decided man, —decided in his temperament. He had his own positive views of business. His condition was about the same as to clearness of understanding during the time I treated him next prior to his death. His mind ran in the same channel. I think he was competent to transact business of any sort. His mind seemed to be clear up to within 48 hours of his death. During the 18 days that elapsed between the time that he returned to the house of Mrs. McKenzie and the date of his death, there were two days that I didn’t visit him, I think, and there were some other days that I saw him four or five times. During that time I think his ability was good to understand and recollect the amount of his property, and who were his friends and relatives, and generally to make an intelligent will, accord-' ing to the amount of information he had, at any time. During the latter part of October, and up to the third of November, when he went out into the country, I saw him almost every day. Up to the time that I last saw him prior to going out into the country on November 3d, I think he was competent to make an intelligent will. I did not observe any change or falling off in his mental condition and clearness and strength between the time that I saw him before he went out in the country, November 3d, and the time that I saw him immediately after his return on the 13th. Immediately before and immediately after his return from that stay out in the country, I think his physical condition as to strength was sufficient to attend to the business of making a will.”

I do not think the cross-examination of Dr. Clark weakens his testimony in chief. This testimony is as follows:

Q. Well, supposing he was out there with Mr. Wilson for nine or ten days, and in his house there during that time, in the condition he was in, what influence do you think that would have over him in making his will, doctor ?
“A. I could not say.
Q. Would it not have a tendency to have him make it in favor of those that were around him ?
“A. It might.
“ Q. Well, would it not?
“A. I think it would.
Q. Then he was in that condition of mind, or body and mind, where he was easily influenced, carried away by the surroundings ?
“A. His mind was clear.
Q. Well, that is not the question I asked you, doctor. Just read that question again. (Reads.)
“A. Yes, I think he might be influenced.
“ Q. You give that as your opinion as a physician, and knowing the man ? '
“A. Well, I don’t.know as it is a medical question, but that is the opinion I have of a man in that condition, — he could be influenced by those who were kind to him. I have expressed an opinion in relation to Mr. Parker that his will would have been made in favor of some one else had he been in their charge at the time. I made it offhand. I said I thought if he had died at Mr. Huntley’s that 'Huntley would have got more, because he would have been under more obligation to Mr. Huntley, because he happened to be there. If he had been over to Mr. Rice’s, or Mr. Nellis’, or some of those places, he might have favored them.' He needed friends very much about that time.”

The doctor’s offhand opinion in such matters is of but little weight, and has no legitimate tendency to show undue influence on the part of Mr. Wilson. The two witnesses to the will were old acquaintances, knew him well, saw him frequently, and testified that he was perfectly competent to understand it.

The testimony on the part of the contestants in regard to his mental condition is not sufficient, in my judgment, to raise a question of fact as to his competency. Mr. Parker was not an old man. He was, physically considered, enfeebled by disease; but that is not enough to show that a man is incompetent to understand his business or to dispose of his property. He dictated-his will without hesitation, and without any memoranda, showing a clear and firm mind. The character of the testimony to show that Mr. Parker was incompetent may be illustrated by referring to that of one witness, — Abbie Woodard. She testified that she called at Mr. Wilson’s some five or six days after he went there, and had a conversation with Mr. Parker. She said:

‘ ‘ I should call him a good deal different from what he usually was. He was a man that was very lively, and joking and laughing and full of fun generally. He felt well as a general thing, but that time he didn’t act as if he— Well, it was either the state of his health or his mind, or something, but he didn’t act natural to me. I cannot tell. I don’t know but it was both. He didn’t attempt at all to converse with me when I talked with him. I asked him one or two questions, and he merely answered me, and that in the easiest way he could. I asked him how he was, and he said if he could keep any-, thing on his stomach he thought he would be better, but he could not; and that ended it.”

After this testimony the following question was then allowed under objection and exception:

“Was he competent and able to transact any business?
“A. Of course, I could not tell, because he did not say anything while I was there. If he had talked with me in any way I might have known whether he was or not, but I have not— He never had before failed to talk with me when I had seen him. He didn’t appear to be able to carry-on a conversation that day. I think if he had, he would with me, because I was an old acquaintance of his, and known him for a great many years. I don’t think he was able.”

Not satisfied with that answer, counsel then put the question:

“ From what you talked with him, and the fact that he was not able to carry on a conversation, from what you knew of him and what you saw that day, do you say he was competent to transact business, or make a will disposing of his property, such as he had at that time ? ”

The competency of the question was argued by counsel, and finally the objection overruled, and the witness answered:

“Well, of course, not having conversation with him about that— That is, I should think in my own mind that he was not. I should not think he was competent. ”

I submit that juries ought not to be permitted to set aside wills upon such flimsy and worthless testimony. If it be true he did not talk with her at that time, it is equally true that he was perfectly able to talk when he made his will, and to state to the scrivener, when no one else was present, just what he wanted. If Mr. Parker’s will can be set aside upon such testimony, then it would be almost impossible for a person physically enfeebled by sickness to make a valid will, for there is no difficulty in finding persons who are ready and willing to testify to incompetency solely because the testator was ill, and did not talk with or appear to them as he had before. The right to dispose of one’s property is too sacred to be thus defeated. The witness Wright testified to nothing to indicate that Mr. Parker’s mind was not clear. He was at Mrs. McKenzie’s after his return from Wilson’s. He testified solely to his physical condition. The witness was then asked, “ From what you saw and what you knew of him, whether he was competent to make a will disposing of the property he had.” His answer was, “Well, sir, I don’t know what to think of it.” Yet he was permitted to go on and give his opinion. Upon what theory can a person be permitted to give his opinion when he says that he does not know ? The witness Alice London did not see Mr. Parker until three or four days after his return to Mrs. McKenzie’s. The disease was then progressing very rapidly, and his physical condition then is not evidence that he was mentally incompetent four days before. The testimony of these witnesses ought, in my judgment, to have been excluded.

I think the case should be reversed.

Long, J., did not sit.


text:
    KOPPITZ-MELCHERS BREWING CO. v. BEHM.
    1. Liquor Tax — Custom—Evidence.
    In an action by a brewing company against a saloon keeper to recover the liquor tax claimed to have been paid by the company for the latter, evidence to show that it was the custom for brewing companies to give the statutory liquor bonds of saloon keepers, and take the receipt for the tax and notice required by statute in their own names, to be used by others, is inadmissible.

      2. Same — Unlawful Custom.
    A custom to violate the law would avail nothing if proved.
    3. Intoxicating Liquors — Nonseverable Contract — Illegal Consideration.
    An agreement that plaintiff should give the statutory saloon-keeper’s bond, procure the tax receipt and notice in its own name, lease a building to defendant for a saloon, and sell him beer, and that defendant should procure a United States license, carry on the business of a saloon keeper in his own name, buy beer of plaintiff only, pay rent, and reimburse plaintiff for the liquor tax, is a nonseverable contract, and wholly void, since it provides that defendant shall carry on the business of a liquor dealer without giving the bond required by law as an indemnity against his own illegal sales.
    4. Same^Unilateral Contract — Want or Consideration.
    A contract in writing signed by defendant only, providing that defendant should buy beer of plaintiff exclusively, rent a building of plaintiff for a saloon, and reciting as a consideration that plaintiff had advanced and loaned to defendant $500 for the payment of the liquor tax for defendant, is unilateral; and, it appearing that plaintiff paid the liquor tax and tools receipt in its own name, there was no consideration, and the contract could not be enforced.
    Error to Wayne; Carpenter, J.
    Submitted December 13, 1901.
    (Docket No. 220.)
    Decided June 3, 1902.

      Assumpsit by tbe Koppitz-Melchers Brewing Company against Adolph Behm for goods sold and for rent. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      James H. McDonald, for appellant.

      L. O. Stanley, for appellee.
   Hooker, C. J.

The plaintiff, being owner of a building in the city of Detroit, rented it to the defendant for a grocery and saloon; and upon May 1, 1900, the defendant was in arrears about $135, according to plaintiff’s testimony. A new arrangement was then made, under which the defendant continued business until' the place was burned, on October 28, 1900. Under this arrangement plaintiff drew and delivered to the county treasurer its check for $500, and procured therefor a beer license, issued to itself, permitting it to sell beer upon the premises. This license was put up in the saloon conducted and owned by the defendant, who gave plaintiff his note for $500, and executed and delivered to the plaintiff the following writing (Exhibit A):

“Detroit, May 1, 1900.
“Whereas, the Koppitz-Melchers Brewing Company, first party, has advanced and loaned to Adolph Behm, second party, $500.00 towards paying the license fee of the second party as a liquor dealer under the laws of Michigan at No. 593 St. Aubin avenue, Detroit, Michigan:- Now, in consideration thereof, the second party agrees to buy his beer for use in his said business exclusively from the first party for one year from this date, and to pay the first party $5.00 per barrel for such beer, cash, weekly, to the peddler. To this price for the beer shall be added and paid by the second party at least $2.00 for and on each barrel, payable at the same time in addition, until the whole sum of $500.00 so loaned, as aforesaid, shall have been repaid. The additional payment on each barrel of beer provided for the liquidation of the loan may be increased in amount from time to time, to the end that the entire loan shall be fully satisfied on or before May 1,1901.
“And it is further agreed that, in addition to the above price specified and payments to be made, the second party agrees to pay for and on each barrel of beer, and at the same time, any additional revenue tax imposed by the government on beer in addition to the present tax of $2.00 per barrel.
“Witness the hand of the second party.
“In addition to above, rent of $20.00 per month, payable monthly in advance.
“Adolph Behm.
“Witness: Arthur C. Melchers.”

During the time that defendant occupied after May 1, 1900, he conducted a grocery and the saloon, sold beer purchased from the plaintiff, and made payments therefor, which were duly credited on plaintiff’s books, upon which, at monthly intervals, charges for beer- appear. On October 31st defendant was credited on the books with $250 for license returned, and it is explained that this credit was given by reason of his ceasing to do business then, owing to the destruction of the shop by fire. This action was brought by the plaintiff to recover a balance of $523 claimed to be due.

There is evidence tending to show that it was understood by the parties that the license was to be taken in. plaintiff’s name for the purpose of securing payment of the price advanced by it to the defendant. Plaintiff’s counsel sought to show that it was a custom for brewing companies to take licenses in their names, to be used by others, under similar circumstances. The testimony was properly excluded. A custom to violate the law would be ineffective if proved. Counsel also claimed and sought to show that it was agreed that the rent should be $25 per month, and that the sum of $20 rental was insei’ted in the writing by mistake.

The plaintiff claimed that the writing was not subject to contradiction or explanation by parol, and the defendant insisted that it was an illegal contract, and void. The court held that the writing was the only proper evidence of the contract; that it provided for the conduct of a saloon business by the defendant under a license that did not authorize it, being in the name of another; and that there could be no recovery of any unpaid part of the note given for the money advanced to pay the license. It was held that recovery might be had for the rent and beer sold to defendant. In determining the amount, the court found that defendant had paid $122.33 upon the license account, and the balance of said item, $127.66, was disallowed, leaving plaintiff entitled to $395.42, for which he rendered judgment. The defendant has appealed, maintaining that the entire contract was illegal and void, and that it will not support a judgment for any sum. ■

The undisputed proof in the case shows that it was mutually agreed orally by the parties that the plaintiff should lease a building for a saloon, sell defendant its beer, procure a license in its own name, and give the statutory saloon-keeper’s bond, and that the defendant should procure the United States license, and carry on the business in his own name, purchase beer of the plaintiff only, pay $25 a month rent, and pay for the beer, and reimburse the plaintiff for the cost of the license. If it can be said that this was the contract, it was clearly illegal and void, for one cannot lawfully carry on such business without himself procuring authority by license, and giving a bond as indemnity against his own illegal sales and those of his agent. Such entire contract would be in contemplation of these illegalities, and there would be no legal ground for treating it as severable, and thereby saving and treating as valid any part of it.

But it may be Said that, after this full and complete oral agreement, the parties put their contract in writing. Exhibit A, which has been incorporated herein, is such writing. It is signed by the defendant, and upon its face shows only the things that the defendant was to do, and states as a consideration only a recital that the plaintiff has loaned the defendant $500 towards paying the defendant’s license fee as a liquor dealer. It does not obligate the plaintiff to sell him any beerit does not agree to lease him any premises, though he agrees to pay rent; it does not state that plaintiff is to procure a license or-give a bond in its own name, under which the defendant should do business; and it is not signed by the plaintiff. The only consideration mentioned is shown to be false, for no loan towards paying a license fee of the defendant as a liquor dealer has been made or proposed, (tf, as contended by the plaintiff, this writing contains the entire contract, and cannot be varied or added to by parol, it is a unilateral contract, which only becomes binding when the consideration therein mentioned is paid. See 1 Beach, CQnt. § 152, note. The proof is that there was no such consideration, and, if it be said that the defendant has accepted the procurement of a license in the name of the plaintiff as the consideration contracted for, it is a sufficient answer to say that it was no consideration, for it was valueless to any one except the plaintiff. If, however, as contended by the defendant, it was competent for the defendant to show the full agreement (and it is clear fróm the instrument itself that all does not appear therein), then the illegality of the whole transaction is made manifest j for it was made in contemplation of the violation of law. Under either theory, the plaintiff cannot recover upon the contract.

The judgment is reversed, and a new trial ordered.

Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit.