text:
    WOEMPENER v. KETCHUM.
    Justices of the Peace — Continuance and Adjournment-Docket Entries.
    A justice may continue a proceeding before him by holding it over from day to day, in order to perform other official duties, without losing jurisdiction of the case; and such holding over is not technically an adjournment, within the meaning of 2 How. Stat. §§ 6899-6903, even though it is so called in his docket, and is not within the provisions of section 7053, requiring the docket to show adjournments, and the place to which they are made.
    Error to Iron; Stone, J.
    Submitted June 10, 1896.
    Decided June 30, 1896.

      Assumpsit by Fred Woempener against Edward F. Fetchnm.' A justice’s judgment was affirmed on certiorari in the circuit court, and defendant brings error.
    Affirmed.

      Julius J. Patek, for appellant.

      J. W. Byers, for appellee.
   Hooker, J.

The defendant removed this cause from justice’s court to the circuit court by certiorari, where the judgment was affirmed. The only point requiring consideration is whether the justice lost jurisdiction by an irregular adjournment, under the rule stated in the case of Waldron v. Palmer, 104 Mich. 556.

The defendant was regularly summoned, but chose not to appear at any stage of the proceedings. The plaintiff appeared and declared, and the return of the justice shows that the trial was commenced, and the plaintiff was sworn and testified, and legal questions were argued; that at 12 o’clock noon the cause was adjourned and continued until the succeeding day at 10 o’clock; that the reason of this was that it was necessary to suspend for dinner, and that the justice had other official duties to perform during a part of the afternoon, and he desired time to look up some legal questions bearing upon the case.

It is competent for the justice to- delay proceedings by “holding open,” as it is sometimies called, ánd by continuing and adjourning from day to day, during the progress of the trial, and, if there is no abuse of discretion, he does not lose jurisdiction thereby. That is what he appears to have done in this case, and it matters not that he called it an adjournment in his docket. Technically it was not an adjournment provided for by .the statute. 2 How. Stat. §§ 6899-6903.

In the case of Waldron v. Palmer we held that the docket must show adjournments, and the place to which they are made. "With much reluctance we felt constrained to follow the letter of the statute. ' But we think section 7053, which controlled that case, does not extend to continuances for a few hours, or from day to day. See Tiff. Justice’s Guide, 295, and cases cited; Stadler v. Moors, 9 Mich. 268.

The judgment of the circuit .court is affirmed.

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


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    STONE v. CAMPBELL.
    Appeal — Findings on Conflicting Evidence.
    Upon an appeal in a chancery case in which questions of fact were alone involved, it appearing that complainant had failed •to establish some of the facts alleged in her bill, and that her conduct since the controversy arose had been wholly inconsistent with the claims made therein, a decree dismissing the bill was affirmed.
    Appeal from Muskegon; Russell, J.
    Submitted June 11, 1896.
    Decided June 30, 1896.
    Bill by Rachel Stone against John Campbell and Florence Campbell to declare a trust in certain real estate. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Arthur Jones, for complainant.

      Smith, Nims, Hoyt & Erwin, for defendants.
   Montgomery, J.

The bill in this case avers that complainant and defendant John Campbell are brother and sister; that, in 1886, defendants and the mother of John Campbell joined in purchasing a ticket in the Louisiana State Lottery, which drew a prize of $15,000, which came into the hands of defendant John Campbell; that he held $5,000 of this sum in trust for his mother, Catherine Campbell; that Catherine Campbell and complainant joined in purchasing a house and lot in the city of Muskegon at the price of $1,650, which was paid for by complainant’s paying in $750, and Mrs. Catherine Campbell’s directing the defendant John Campbell to apply $900 of the proceeds of the lottery ticket in his hands belonging to her; that, without the knowledge of complainant, said John Campbell took the deed to the property in his own name, in fraud of complainant’s rights. The answer denies the claim that Mrs. Catherine Campbell had an interest in the lottery ticket; denies that there was any agreement that the property should be purchased in the name of complainant, and that the complainant furnished any portion of the consideration; and avers that, for the purpose of providing the complainant a home, he bought the property with his own money, permitted the complainant and her husband to occupy it upon their payment of a small rental, and with the privilege of purchasing at the price which he paid, if they should be able to do so.

The question involved is purely a question of fact. The parties are at direct variance in their testimony, and each party has the support of alleged admissions of the other. We are convinced upon the whole record that the complainant has not established her case. The testimony fails to satisfy us that the complainant had the amount of money which she alleges she put into the property in question. After the controversy arose, we find that she wrote a letter to defendant John Campbell which is wholly inconsistent with her present claims. This evidence is convincing, and, if the case were more doubtful, would be controlling.

The decree of the court below, dismissing complainant’s bill, will be affirmed, with costs.

The other Justices concurred.


author: Hooker, J.

text:
    VAN DEUSEN v. INGRAHAM.
    Principal and Agent — Authority to Collect Mortgage.
    The agency of a firm of attorneys to receive payment of the principal of a mortgage not in their possession, making a payment to one of them, who misappropriates the proceeds, binding upon the mortgagee, is not established by evidence that, without any request by the mortgagee, they had collected the interest on the mortgage, and that, a short time before the payment, some correspondence had passed between them with reference to having the mortgagor procure a renewal of the insurance, where the loan was procured by them for the mortgagor, who paid them by a note included in the security of the mortgage, and which, according to their understanding, also covered their services in collecting interest, and it was the custom of the firm to see that the parties for whom they procured mortgage loans kept up their insurance.
    Appeal from Van Burén; Buck, J.
    Submitted June 10, 1896.
    Decided June 30, 1896.
    Bill by Cynthia A. Van Deusen against Frank E. Ingraham and others to foreclose a mortgage. From a decree dismissing the bill, complainant appeals.
    Reversed.

      E. A. Oreme, for complainant.
    Osborn, Mills & Master, for defendants.
   Hooker, J.

Crane & Breck, lawyers, and copartners, respectively resided at Kalamazoo and Paw Paw. They engaged somewhat in the business of negotiating loans. Early in 1889, Bushnell and Ingraham applied to Breck for a loan of $1,500. Breck inf ormed Crane, and bespoke to Dr. Van Deusen, the complainant’s husband, who gave him encouragement that his wife would make the loan. Crane thereupon wrote to Breck, as follows ••

“If I understood you correct, those parties west of Berlamont are to come in next week to make their papers. I think we will be safe in making them to Mrs. Van Deusen, as I think they will have the money by the time it will be necessary. I shall want the insurance and everything in good shape when I present them.”

Breck caused the parties to execute a mortgage to the complainant, and had it recorded. It was acknowledged January 11th, and.it was delivered through Crane. On January 16th Crane wrote to Breck’as follows:

“Dear Breck: Dr. Van Deusen gave me a check for the Ingraham loan, and I have deposited $1,500 to your credit at the Michigan Nat. Bank. I gave him the note and mortgage, and he has just returned insurance policy, and calls my attention to the fact that the policy runs to Bushnell, and the mortgage note is given by Ingraham. Of course, Í could not explain how it happened. Also, that the policy describes the premises as on section 23, 1, 14, while the land is on 18. I will inclose policy. You get it fixed right, and explain how it comes that Ingraham gives this mortgage. I supposed Bushnell was the owner of the land. I also .send you the Palmer policy you wanted.
“You may assign ICnafsker mortgage to Louisa F. Trask. Get papers here as soon- as you can, and I will get the money.
“ Send me your duebill, also, for balance as per books.”

The following statement was forwarded by Breck to Crane:

Paw Paw, Mich., 9-.
Amount Ingraham mortgage.................... $800 00
Interest to date..........._■...........-......... 70 75
Amount Bushnell mortgage..............-...... 692 00
Amount interest to date B. mortgage............ 61 20
Total-..-...........................-.......$1,628 95
Expenses of loan..........._•................... 3 00
Total....................................... $1,626 95
Less amount of mortgage.....................1,500 00
Amount Ingraham paid..................-...... §126 95

The mortgage secured two notes, one of $1,500, running to the complainant, and the other reading as follows, viz.:

“E. A. Crane, George E. Breck,
Kalamazoo. Paw Paw.
Law Oeeice of Crane & Breck.
“$75. Paw Paw, Michigan, January 12,' 1889.
1 ‘ For value received, I promise to pay Crane & Breck one per cent, per annum on fifteen hundred dollars, payable annually, for five years from date. This note is secured by real-estate mortgage of even date herewith, and collateral hereto, on land in section 23, town 1 south, of range 15 west, Van Burén county, Michigan. It is agreed that, if any interest as above provided shall become due and remain unpaid for 60 days, the whole amount of said interest may, at the option of the holder hereof, be declared due and collectible at once. This note is given as one per cent, per annum on fifteen hundred dollars for five years, and it is agreed that, should any payments be made on said mortgage before five years, only one per cent per annum upon the amount unpaid shall be- due hereon, and that one per cent, shall be payable until all is paid, be the time five years or more.”

The interest of Crane & Breck was never assigned to the complainant. Dr. Van Deusen, who acted as- agent of his wife, knew that the mortgage secured the note for $75. Dr. Van Deusen had the custody of the mortgage and the $1,500 note, and Crane seems to have held the $75 note. It appears that the Van Deusens had previously loaned money, upon applications made through Crane & Breck. Dr. Van Deusen knew they were partners, and had an office contiguous to Crane’s office, and kept his papers in Crane’s safe. Among them was this mortgage. Crane had access to the compartment in which they were kept. Interest was paid to Breck, who forwarded it to Crane, who turned complainant’s share over to Dr. Van, Deusen; Crane indorsing the same upon the notes. A time before the mortgage matured, Ingraham and Bushnell approached Breck about a new loan, at a lower rate of interest. Breck appears to have written to Crane about it, who replied as follows:

“So far as Ingraham-Bushnell mortgage is concerned, it is useless to talk about getting money at less than 7 per cent, net to the mortgagee. I suppose they are paying us a commission note in addition to that. I can do nothing for them, as I certainly will not be annoyed with attending to these collections for anything less than we have been getting. * * * ” .

Subsequently Crane and Breck met Ingraham, who testified that the following conversation occurred:

“Mr. Crane and Breck came up there. I was drilling oats, and Mr. Crane said to me, ‘Ingraham, what is to do about this interest?’ ‘Well,’ I says, ‘Mr. Crane, unless you can make this a cent less, I will have to make a change.’ ‘ Well,’ he said, ‘ I don’t think the parties will do it; but,’ he says, ‘you need be in no hurry about this interest. You can let it run until fall, then come out and make new papers, and you can have all the time you want.’ I says, ‘Thank you; if I can get the money, I shall make the change.’ And he drove away.”

Ingraham thereafter arranged with Wiggins for a loan from a fund which he held for a Mrs. Fuller and her children, and Wiggins sent a check to the First National Bank of Paw Paw. The business was done with Breck at his office. Breck called at the bank and told the cashier that he had discharged the mortgage, and obtained the money Breck mailed to Ingraham the $75 note, which he obtained from Crane, and what purported to be the $1,500 note, and discharged the mortgage by signing an acknowledgment of full payment of the same in the margin of the record. He sent $72 to Crane, who paid it to Van Deusén, and indorsed it on the complainant’s note. Breck converted the balance, which fact was not discovered until after his death, in 1894.

The foregoing is substantially all of the testimony tending to show that Crane & Breck were agents of the complainant, except the fact that Breck wrote to Crane about Ingraham’s insurance policy on April 27, 1894, a short time before Wiggins sent his check to the bank at Paw Paw. In this connection Crane testified that he did not know that he asked Breck to look it up, and that—

“I have made a practice of looking over all insurance policies in my office on the first day of each month, as I have a great many of them, and tiróse that are to expire during that month I calculate to follow the parties up, and see that they get new policies, and my recollection is that something of that kind happened with reference to the Bushnell policy. ”'

In our opinion, the testimony fails to show that Crane & Breck were agents of the complainant. They obtained the loan for Ingraham and Bushnell, who paid them for it, by a note for $75. Interest was paid Yan Deusen through them, but it does not appear that Yan Deusen paid for or requested it, and Crane’s letter indicates that he understood that the mortgagors paid for that service by the $75 note when he refused to do it for less.

The decree of the circuit court is reversed, and the complainant will take a decree as prayed in the bill, with costs of both courts.

Long, C. J., Montgomery and Moore, JJ., concurred, (or rant, J., did not sit.


author: Hooker, J.'

text:
    BLUMENTHAL v. SIMONS.
    Garnishment — Assignment oe Judgment — Fraud.
    Garnishment proceedings cannot be sustained against a judgment debtor where it appears that the judgment, prior to the institution of the suit, had been assigned by the principal defendant to a third party in trust for certain of his creditors, unless it is established that the assignment was fraudulently made.
    Error to Ingham; Person, J.
    Submitted June 11, 1896.
    Decided June 30, 1896.

      Garnishment 'proceedings by Albert Blumenthal and others against Benjamin F. Simons, as principal defendant, and David Burnham, a judgment debtor of Simons, as garnishee defendant. Arthur O. Bement, assignee of the judgment against Burnham, Quincy A. Smith, Richard A. Montgomery, and Jay P. Lee claimed the proceeds of the judgment, which had been paid into court. From a judgment for claimants, plaintiffs bring error.
    Affirmed.

      Sloman, Groesbeck & Robinson (Wood & Wood, of counsel), for appellants.

      Smith & Lee, for appellees.
   Hooker, J.'

Simons recovered a judgment against Burnham for §3,000 in the circuit court of Ingham county, which was affirmed in this court September 25, 1894. 102 Mich. 189. Pending the appeal, the plaintiffs garnished Burnham, by proceedings instituted January 14, 1893. On January 9, 1893, Simons- assigned the judgment and certain accounts due him to A. O. Bement, in trust, to collect and receive the same, and apply the-proceeds to certain debts of Simons, therein enumerated. Bement took the accounts and proceeded to collect the same. At this time Bement was accommodation indorser for Simons to the extent of §20,000 or $30,000, and Simons owned a stock of goods, and perhaps other property, in Lansing, upon which he gave chattel mortgages on January. 7, 1893, he having failed in business. Simons continued to run the business under the supervision of Bement, who saw that the receipts were applied to the liquidation of the mortgages, and the notes secured by the assignment of January 9th, until August 18, 1893, when the property was all assigned to Bement subject to the mortgages mentioned. Meantime Bement had paid the claims secured by the assignment of January 9th from the proceeds of the goods, or from his own means, or both, and the judgment remained uncollected. He see'ms to have taken the property, and assumed the burden of paying Simons’ debts, as necessary to his own protection. Burn-ham filed a disclosure, which was sworn to by him on March 1, 1893, denying any indebtedness, but admitting the rendition of the judgment, and asserting that the action was unsettled. On January 31, 1895, he filed an amended disclosure, admitting a judgment of $3,114, and interest from October 27, 1892, and stating that he had paid the money, in accordance with the order of the court, to the clerk of the circuit court, on November 9, 1894. He also stated that A. O. Bement, Q. A. Smith, J. P. Lee, and R. A. Montgomery claimed interests in the judgment; and, pursuant to a stipulation dated March 30, 1895, and the order of the court of November 9, 1894, neither of which appears in the record, these persons made and filed their respective claims against the fund, and issues were joined thereon.

The plaintiffs contended that the assignment of January 9th was a fraudulent transaction, but the judge found otherwise, and we think the exception to such finding groundless. The circuit judge also found that the property assigned January 9th was insufficient in value to pay the claims mentioned therein. His finding shows, however, that Bement collected from the accounts covered by such assignment $2,699.35, and that all or most of this was collected after service of the writ of garnishment. Bement’s assignment was absolute in form, and was apparently accompanied by a delivery of the property mentioned. While, in equity, it would doubtless be held a mortgage, as to Simons and his creditors, the legal title to the property passed to Bement, and with it the right to collect the judgment against Burnham, which Simons was not thereafter in a situation to enforce. It may be doubted, therefore, whether a garnishing creditor would be in a position to enforce payment against Burnham by an action at law. See 2 Shinn, Attachm. §§ 475, 516, and cases cited; Neumann v. Mining Co., 57 Mich. 97; Farwell v. Chambers, 62 Mich. 321.

If, however, it be contended, that this assignment can be treated as a mortgage in courts of law, Bement, the mortgagee, was in possession of the judgment against Burnham, as far as it was susceptible of possession. See Preston Nat. Bank v. George T. Smith Middlings Purifier Co., 84 Mich. 364. If it is contended that, as mortgagee in possession, he might have been garnished, which we do not intimate, the right of redemption only would have been subject to the writ. 2 Shinn, Attachm. § 584. But in this case no attempt was made to garnish Bement, who was left to deal with the property as he chose under the assignment. There is reason to believe that he may have applied some, if not all, of the money collected from the accounts, to other obligations of Simons. These accounts were not garnished, and, so far as appears, Bement had no reason to doubt the propriety of relinquishing a part of such security, so long as the cestuis que trustent did not complain. If ignorant of the garnishee proceedings, he owed no duty to the plaintiffs, who now insist upon the right to require him to exhaust the other assigned property before resorting to this judgment, and say that, if he has advanced from his own pocket, or from property covered by the chattel mortgages, to pay the cestuis que trustent under the assignment, he has done so at his peril, and cannot reimburse himself out of the property delivered to him for the purpose of securing the claims so paid, but that the plaintiffs are entitled to profit at his expense.

The record seems to disclose that the garnishee, Burn-ham, did not owe Simons, but that he did owe Bement, at the time the writ was served. If Simons may be said to have had an interest in the judgment, it was that equitable interest called an “equity of redemption,” which he could not assert against Burnham, but only against Bement. This neither he nor the plaintiffs have attempted to do. Instead of proceeding against the equity of redemption, they chose to attack the good faith of the assignment. Had they succeeded in establishing fraud, their proceeding would have been well planted. Failing in that, they have no foundation to support their claim.

The judgment of the circuit court is affirmed.

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


text:
    PEOPLE v. RUSSELL.
    1. Criminal . Law — Continuing Offenses — Keeping House of III Fame — Information.
    In an information for keeping a house of ill fame, the offense may be charged as having been committed on a day certain, and on divers other days and times between that day and a previous day specified, it being a continuing offense.
    3. Same — Variance Between Complaint and Information.
    The information in such case is not invalidated by the fact that the complaint before the justice charged the offense as having been committed upon the particular day only.
    3. House of III Fame — Evidence—Reputation of Inmates.
    In a prosecution for keeping a house of ill fame, evidence that one of the inmates of the house had borne the reputation of being a common prostitute is admissible.

    4. Same — Remoteness.
    Such evidence is not so remote as to be incompetent although it relates to reputation three years before, particularly where it covers a period down to the time the offense is charged to have been committed.
    5. Same — Reputation of Frequenters.
    It is not necessary to prove, on a prosecution for keeping a house of ill fame, the bad reputation of men who resorted to the house, where their acts were of such a character as to warrant the inference that they went there for immoral purposes, and the inmates are shown to have been women of evil reputation.
    6. Same — Instructions—Essentials of Offense.
    An instruction, in a prosecution for keeping a house of ill fame, that if the inmates of the house were prostitutes, and if males were seen frequenting the house at night, the jury might convict, is not ground for reversing a conviction, where the court also instructed that the males must have resorted to the house for the purpose of prostitution or lewdness, and that it was the usé of the house, and not merely the reputation of its inmates, that the statute was intended to reach
    Exceptions before judgment from Emmet; Adams, J.
    Submitted June 19, 1896.
    Decided June 30, 1896
    Sarah J. Russell was convicted of keeping a hou,se of ill fame.
    Affirmed

      B. T. Halstead, for appellant.

      Clay H. Call, Prosecuting Attorney, for the people.

       The decisions as to evidence of the character of inmates of disorderly houses are collected in a note to State v. Hull, (R. I.) 30 L. R. A. 609.

   Montgomery, J.

The respondent was convicted of the offense of keeping a house of ill fame, and brings the case here for review. There are a large number of assignments of error. We shall not discuss at length all of them. It will suffice to say that as to such allegations of error as appear to be predicated upon the claim either that the offense has not been proven, or that the character of the men who visited the house was not shown to be bad, we think the record is an ample reply to the contention in both respects, but shall not set out the evidence at large in this opinion, for manifest reasons.

A motion was made to quash the information on the ground that it .does not correspond in its allegations to the charge made in the complaint before the examining magistrate. The complaint before the justice stated the offense to have been committed on the 17th day of November, 1895. In the information it is charged as having been committed on the 17th day of November, 1895, and on divers other days and times between that day and the 1st day of September, 1895. In this allegation the information followed the proofs taken on the examination. It is permissible to fix the date by the date shown on the examination. People v. Annis, 13 Mich. 511; People v. Whitney, 105 Mich. 622. If other offenses than that averred in the complaint might be proven under the allegation in the information, a different question would be presented. But the charge of keeping a house of ill fame is a charge of a continuous offense, and no second prosecution could be had for any act antedating the day fixed by the complaint. People v. Cox, 107 Mich. 435. And, under a complaint alleging a particular day, proof of transactions on other previous days, the whole constituting one continuous offense, is admissible. State v. Ah Sam, 14 Or. 347. A continuing offense may be charged as having been committed on a day certain, and on divers days and times between that and another day specified. Com. v. Briggs, 11 Metc. (Mass.) 574; State v. Bosworth, 54 Conn. 1. The suggestion made at the argument that it is essential that the earlier date should be first named, we think, is without force.

It was competent to show that one of the inmates of the house was a female who had borne the reputation of being a common prostitute. Com. v. Kimball, 7 Gray, 330; Harwood v. People, 26 N. Y. 190 (84 Am. Dec. 175).

It is contended that in this case the evidence relating to the reputation of one of the inmates, covering as it did a period of some three years before the time charged, was too remote. We think the testimony not open to this objection. Reputation is not made in a day, and, when once, established, may well be presumed to continue, particularly where, as in the present case, the testimony covered the period down to the time in question.

Error is assigned upon the refusal of the court to give the respondent’s fourth request, which reads:

“ To constitute the offense charged, the house must be resorted to by men of evil repute, as well as women of that repute, for the reason that the act of prostitution cannot be committed by persons of' one sex alone; and there must be proof of the evil repute of the men who visited this house, if they did visit it, inasmuch as it has been shown that the women named as of doubtful reputation actually resided in the house, for the reason that the permanent occupants of a dwelling cannot be said to resort to it.”

We think this charge was properly refused. It was not essential for the people to prove the reputation of men who resorted to this house, if they were of lewd character, and their acts were such as to warrant the inference that they resorted to the place for the purpose prohibited by the statute.

By another request the court was asked to charge that it must be shown by the people either that the men went there for the purposes of prostitution and lewdness, or else that they were men of evil repute themselves; and error is also assigned upon the instruction, given at the request of the prosecutor, as follows:

“If it is shown to the jury that the inmates of the house are prostitutes, and that males were seen frequenting the house at night, and that the respondent is the keeper of the house, then the jury may convict.”

This latter instruction, standing by itself, if interpreted by the jury as a positive instruction to convict upon proof of these facts alone, would be misleading. While, from the facts stated in the request, the jury might draw such inferences as would justify a conviction, yet the bare facts stated in the instruction did not constitute the offense. But, taken as a wholé, we think the charge could not have been misinterpreted, and that the substance of the request of respondent, above quoted, was given. The circuit judge charged that in order to convict, and entitle the people to a verdict of guilty, it was necessary for the people to prove beyond a reasonable doubt the essential elements of the offense charged, which are— First, that the house was a house of ill fame; second, that the l’espondent kept the house, or aided in the keeping of it; third, that it was resorted to for the purposes of prostitution and lewdness; “that it is the use of the house, and not merely the repute of its inmates, which the particular statute under which this charge is brought was intended to reach.” And in another portion of his charge he stated:

“ It is not sufficient that the house should be a house of evil repute, or ill fame. It must be resorted to by persons for the purposes of prostitution or lewdness. Now, in relation to that, I will say to you that the bare fact of some women living there, who have an evil reputation, — the reputation of being prostitutes,' — would not be sufficient for you to convict upon, * * * without, if anybody resorts there, they are the inducement for these other people to resort there.”

We think that under this charge, taken as a whole, the jury could not have been misled, and must have understood that before a verdict of guilty would be justified there must be an actual finding that the purposes for which the house was resorted to were those named in the statute.

The rights of the respondent were fully protected on the trial, and the conviction will be affirmed.

The other Justices concurred.


author: Grant, J.

text:
    KIRT v. KROPP.
    ' Contracts — Married Women — Incapacity.
    A married woman cannot be held liable to a domestic for services rendered in a house and about a farm the title to which is in the husband, although she, having the management and control of the property, herself employed the servant.
    Error to Leelanaw; Corbett, J.
    Submitted June 17, 1896.
    Decided June 30, 1896.

      Assumpsit by Caroline Kirt against Mary Kropp for services rendered and money loaned. From a judgment for plaintiff, defendant brings error.
    Reversed.
    The defendant was a married woman, living with her husband upon a farm owned by him at the time of the plaintiff’s employment. Plaintiff sued to recover for services as a domestic in the family from 1881 to 1889 and for money loaned to the defendant. She recovered verdict and judgment. Defendant’s husband deeded the land to her September 3, 1887. Plaintiff testified that she had conversations with both defendant and her husband as to her employment, and that both promised to pay her. She did work upon the farm as well as in the house. The court instructed the jury as follows:
    “If you find from the evidence that Mr. Kropp left the r control of the house and the management of the farm to his wife, and that his wife, in pursuance of that business, employed the plaintiff to labor for her, then the plaintiff is entitled to recover against the defendant, Mary Kropp.”

      M. B. Pulcipher, for appellant.

      Alexander McKercher and Pratt & Davis, for appellee.
   Grant, J.

(after stating the facts). We think the instruction is in conflict with the well-established rule that a married woman can make contracts binding upon her only in reference to her separate estate. She cannot be held liable because she keeps her husband’s accounts, handles the money, or even makes contracts for laborers. For her agreements and promises after she became the owner of the land, and for any money loaned to her, she is responsible. Upon this record the court should have instructed the jury that plaintiff could not recover for services rendered before she became the owner of the land.

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

The other Justices concurred.


text:
    PEEK v. ROE.
    1. Nuisances — Line Pences.
    A board fence 11 feet high., which shuts out the light from the rooms of an adjoining proprietor, prevents a circulation of air, and renders his house damp and unhealthy, and which subserves no useful purpose, is a nuisance.
    2. Same — Responsibility for Maintenance — Parties.
    Evidence that both of the parties defendant to a bill to restrain the maintenance of a fence at such a height as to constitute a nuisance own an interest in the premises upon which the fence is maintained, that one of them lives thereon, and that the other, in reply to a communication requesting a reduction in the height of the fence, stated, “Whenever you get ready to move on our works we shall be ready to receive you,” is sufficient to show that both are responsible for its maintenance.

      Appeal from Wayne; Lillibridge, J.
    Submitted June 17, 1896.
    Decided June 30, 1896.
    Bill by Cynthia M. Peek against Jennie Roe and Charles Roe, Jr., to abate a nuisance. Prom a decree for complainant, defendants appeal.
    Affirmed.
    Complainant and defendants are the owners of adjoining lots. Complainant’s house is situated about a foot from the division line. The defendants maintain a board fence 10 feet 9 inches high, which shuts out the light from the rooms of the complainant, and prevents a circulation of air, thereby rendering her house damp and unhealthy. A bill was filed to restrain the defendants from maintaining this fence to a greater height than 6 feet. Proofs were taken in open court. The defendants introduced no testimony, and decree was entered for the complainant.

      John B. Shipman, for complainant.

      Atkinson & Atkinson, for defendants.
   Grant, J.

(after stating the facts). The main point in the case is ruled by Kirkwood v. Finegan, 95 Mich. 543, and Flaherty v. Moran, 81 Mich. 52 (21 Am. St. Rep. 510). The principal defense appears to be that the defendants are not shown to be the parties responsible for the erection and maintenance of the fence. Defendant Jennie Roe lives in the house, as does also her father. Defendant Charles Roe, Jr., is the owner of an undivided interest as the heir of his mother, of whose estate he is the administrator. We think the evidence sufficient to show that both defendants are responsible for the maintenance of the fence. Charles, in reply to a letter, written in behalf of the complainant, requesting a change in the height of the fence, wrote, “Whenever you get ready to move on our ‘works,’ we shall be ready to receive you.”

The decree is affirmed, with costs.

The other Justices concurred.


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    HOGAN v. HUDSON.
    1. Chattel Mortgages — Default — Foreclosure for Whole Amount — Rights of Unsecured Creditors.
    A mortgagee whose lien secures the payment of several notes to become due at different times, and which is the only lien upon the property, may, with the consent of the mortgagor, as against his creditors, foreclose for the whole amount, on default in payment of the note which first becomes due.
    2. Same — Sale in Bulk — Validity.
    Such proceedings are not invalidated as to other creditors of the mortgagor by the fact that, with his consent, the property is sold in bulk instead of in parcels, where the mortgage does not designate the manner of sale, and the sale is so made in good faith, with the intention of procuring the highest price obtainable.
    Error to Wayne; Carpenter, J.
    Submitted June 17, 1896.
    Decided June 30, 1896.
    Garnishment proceedings by Walter G. Hogan against Joseph L. Hudson, as garnishee of Joseph L. Gearing. From a judgment for the garnishee defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    The principal defendant, Gearing, was a building contractor, carrying on business in the city of Detroit. He owned some buildings situated upon leased ground, which he occupied as a plant for carrying on his business, and in which he had the usual machinery and tools. On October 14, 1895, he was indebted to the garnishee defendant, Hudson, in the sum of $2,000, for money loaned. At the same time Mr. Hudson was an indorser for Mr. Gearing on a promissory note for $4,500, due November 11, 1895. One C. McElroy was an indorser for Gearing on three notes,' — one for $2,600, one for $1,800, and one for $2,000, — due, respectively, on October 21, November 12, and November 14, 1895. To secure Mr. Hudson and Mr. McElroy, Mr. Gearing executed a chattel mortgage on the buildings, machinery, stock, goods, and material used in connection with his business, and his book accounts. The $2,000 loaned by Mr. Hudson, and also two other small debts secured by the mortgage, were paid. Default was made in the payment of the $2,600 note, due October 21st, and thereupon, and before the other notes became due, Mr. Hudson took possession of the property under the chattel mortgage, and advertised it for sale on October 29th. October 28th, Mr. Gearing wrote a letter to Mr. Hudson, saying:
    “I think it best for all parties that the entire property as inventoried, together with book accounts, be sold as one parcel, and that the proceeds be used for the payment of the claims secured, whether matured or not.”
    The property was accordingly sold in bulk, and was bid in by Hudson and McElroy for the sum of $11,000, the total amount of their liability; Hudson buying an undivided 46-110 part, and McElroy an undivided 64-110 part. Soon after the sale, Mr. Gearing obtained from Hudson and McElroy an option to purchase the same for the sum of $12,000, and immediately sent out notice to his other creditors, reciting the fact of the giving of the mortgage, the foreclosure of the same, and an offer to turn over the property upon which he had secured the option to the creditors, or such of them as might wish to take it, provided they would answer the proposition by November 4, 1895, the time at which his option expired. A meeting of the creditors was had on that day, but, as all were not present, an adjournment was had for a week, and an extension of the option secured for that time. Meanwhile, and upon November 0th, the plaintiff instituted this suit. The court directed a verdict for the defendant.

      Boioen, Douglas & Whiting, for appellant.

      Gray & Gray, for appellee.
   Grant, J.

(after stating the facts.) The validity of the sale was attacked for three reasons: ■

(1) Because there was a fraudulent collusion between Mr. Hudson and Mr. Gearing.
(2) Because default in the payment of one note did not authorize a sale, and no foreclosure could be had until there was default in all the notes.
(3) Because the sale was in bulk, and not in parcels.

The mortgage was conceded to be valid, and the indebtedness secured thereby to be bona fide. Subsequently to the sale, McElroy sold and conveyed his interest in the property to the Delta Lumber Company; and the Delta Lumber Company and Mr. Hudson, after the failure of the creditors to accept the proposition of Mr. Gearing, sold and transferred the property to Julia Gearing, the wife of Mr. Gearing. Hpon the theory that the sale was void, the plaintiff seeks to hold Mr. Hudson liable for the value of the property, and without payment, tender, or offer to pay the indebtedness secured by the mortgage.

The record contains no evidence to show any fraud on the part of Mr. Gearing or Mr. Hudson, or any collusion between them for the purpose of defrauding Mr. Gearing’s other creditors. The sale was open, the proper notice given, and there was no other alternative left to Mr. Hudson and Mr. McElroy than to bid the property in, there being no other bidders. There was no effort to conceal anything from the unsecured creditors. Had they secured liens upon the property by attachments or otherwise, the law would have compelled them to pay the indebtedness secured by the mortgage. By the action of Mr. Hudson and Mr. Gearing they were given this opportunity after the sale.

The second point is not tenable. There was default in the payment of one of the notes. The mortgage provided that—

“If said Gearing shall pay the promissory notes according to the tenor of said promissory notes, then the mortgage shall be void and of no effect, but, if lefault shall be made in snch payment, said Hudson is hereby authorized to, and shall, sell at public auction.”

No other lien then existed, and Mr. Gearing, the only party who then had any voice in the matter, recognized the right to foreclose, and assented to it. The other notes would have become due in a few days, and it was entirely competent for him to assent to a foreclosure, and that at that sale the other notes might be considered as due, and be included in the sale. Those who had no liens are not in position to attack the sale upon this ground.

What has already been said applies to the sale in bulk. The mortgagor and mortgagee considered it for the interests of all concerned that the property be sold in bulk. Gearing had the right to so assent. They were the only parties.who had the right-to speak, and, so long as they acted in good faith, others cannot complain. The mortgage did not provide for sale in parcels, and, in the absence of such provision, it is the duty of the mortgagee to sell in such lots as will command the highest price. Perkins v. Spaulding, 2 Mich. 157.

We find no error, and the judgment is affirmed.

The other Justices concurred.


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    DUSENBURY v. LOOKER.
    Corporations — Stockholders’ Minority Law — Mandamus — Parties.
    Where the incorporators of a mutual insurance company, pursuant to authority lodged in them, by the act under which the company is organized, to fix the number of directors and the manner of electing them, have vested the power to call the stockholders together for election purposes exclusively in the board of directors, the president and secretary of the company are not the proper respondents in mandamus proceedings to compel the reconvening of the stockholders for an election in compliance with the stockholders’ minority law, after an election in which the rights of the minority under such law have been disregarded.

      Certiorari to Wayne; Frazer, J.
    Submitted June 2, 1896.
    Decided June 30, 1896.

      Mandamus by Joseph W. Dusenbury against Oscar R. Looker, president, and James H. Cummins, secretary, of the Michigan Mutual Life Insurance Company, to enforce the stockholders’ minority law. From an order denying the writ, relator brings certiorari.

    Affirmed.
    The Michigan Mutual Life Insurance Company is a corporation organized in this State July 8, 1870, under the life insurance act of 1869. At the annual meeting of the stockholders January 28, 1896, the relator, holding 1,238 of the 5,000 shares of stock in the company, endeavored to enforce the stockholders’ minority law of 1885. 3 How. Stat. § '4885a. The majority refused to vote according to the minority law, and cast 3,655 votes for each of the nine directors to be elected. The relator multiplied his 1,238 shares by 9, making a total of 11,142 votes, and cast 5,571 for his brother, Will J. Dusenbury, and a like number for himself. The meeting refused to count his vote except as a vote of 1,238 for each, and declared the nine persons receiving 3,655 votes each elected. The relator protested against this action, and subsequently notified the stockholders that he would insist on an observance of the minority law as to the manner of voting, and also on an election of the whole number of directors as required by that law. This is an application for a mandamus to compel the president and secretary of the company to issue the necessary notices to reconvene the stockholders’ meeting for the purpose of holding an election in compliance with the minority law.

      Fred A. Baker, for relator.

      C. A. Kent, for respondents.
   Grant, J.

(after stating the facts). The act under which this insurance company was organized does not provide for the number of directors, nor how they shall be elected, but leaves it to the incorporators in their articles of association to fix the number of directors and manner of election. The original articles provided for 21 members, 7 to be elected each year. A subsequent amendment increased the number to 27. If mandamus were the proper remedy, we do not think the proper parties are before the court. Neither the articles of association nor the by-laws impose any duty or confer any right upon the president and secretary to call the meeting. That power is vested exclusively in the board of directors. Besides, the directors are the persons whose right to this office is attacked, and are the proper persons to be made parties to a suit involving their title.

The judgment of the court below, denying the mandamus, will be affirmed, with costs.

The other Justices concurred.


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    PEOPLE v. OSTRANDER.
    I. Perjury — Materiality of Testimony — Evidence.
    In a prosecution for perjury alleged to have been committed upon a trial for burglary, it is proper, where the materiality of the testimony upon which the alleged perjury is based would not otherwise appear, to show by the jurors in the burglary case the nature of the defense there relied upon.
    3. Conspiracy — Evidence—Question for Jury.
    In a prosecution for perjury alleged to have been committed upon a trial for burglary, evidence of a conspiracy between the respondent and others to give such false testimony, for the purpose of aiding the respondent in the burglary case, need not be express to justify its submission to the jury, since proof of a conspiracy, from its very nature, must often be made by circumstantial evidence.
    3. Criminal Law — Presumption of Innocence — Instructions.
    Failure to instruct the jury in a criminal cause as to the presumption of innocence is not reversible error, where the attention of the court was not called to the omission, and the charge as given was explicit to the effect that the guilt of the accused must be proved beyond a reasonable doubt. People v. Graney, 91 Mich. 646, followed.
    Exceptions before judgment from Oakland; Carpenter, J. , presiding.
    Submitted April 30, 1896.
    Decided June 30, 1896.
    Eugene Ostrander was convicted of perjury.
    Affirmed.
    The respondent was convicted of perjury, alleged to have been committed upon the trial of one Campbell for burglary committed in the city of Pontiac. Upon the trial of Campbell the theory of the defense was that one Gulick committed the crime, and the respondent and several other Avitnesses testified to seeing him in Pontiac the evening prior to its commission, and early on the morning following. It is stated in the brief of counsel for the respondent that two of these witnesses had been convicted of the crime of perjury committed on that same trial.

      Davis & Bromley, for appellant.

      Frederick Wieland, Prosecuting Attorney, for the people.
   Grant, J.

(after stating the facts). Some of the jurors in the Campbell case were permitted, under objection and exception, to testify that the defense in that case claimed, from the evidence, that Gulick committed the crime. Respondent’s counsel elicited, on cross-examination of one of these witnesses, the fact that Gulick, upon the trial of Campbell, testified that he' bought 500 cigars of Campbell, who told him that he had stolen them. These witnesses had given evidence that respondent testified upon that trial that he saw Gulick in Pontiac at the time stated. The respondent’s testimony was also read in evidence by the stenographer. It was, of course, essential for the prosecution to show the materiality of this testimony, upon which the perjury was based. If the materiality clearly appeared from this testimony of respondent and others, it would have been unnecessary to show it by other evidence, but the admission of such other evidence would not then be prejudicial. If, however, it was not apparent, we think it was competent to show its materiality by ho wing what defense was made in the Campbell trial, and that the claim was that Gulick was the criminal, and that such.claim was based upon the testimony of respondent and others. We have not been able to find any authorities upon the question, and our decision must therefore rest upon what seems to us sound sense and reason. It is evident that the materiality would frequently not appear from the alleged perjured testimony itself. It must be shown by other facts and circumstances connected with it and the use made of it.

The prosecuting attorney stated, during the trial, that he claimed that there was an arrangement bétween Campbell, the respondent, and the other witnesses to give their testimony in that case in order to acquit Campbell. In his argument to the jury he also made this claim. The respondent requested the court to instruct the jury that there was no evidence of such arrangement or conspiracy. This is the important question in the case. Proof of such an arrangement or conspiracy must largely depend upon circumstances. Direct evidence can seldom be produced. Here were several witnesses giving testimony, which, though they did not testify to seeing Gulick at the same moment and in the same place that respondent did, yet it was to the same purport, and tended to show him in the vicinity of the place where the crime was committed, and to create the impression that Gulick, instead of Campbell, was the guilty party. In addition to this, one witness testified to a conversation with the respondent, in which the respondent told him that “they had it all fixed so that he [Campbell] was going to get clear.” This same witness testified that on another occasion respondent asked him what he thought about his own case, to which he replied:

“I told him I did not know anything about it, but I knew one thing, that if it was me, and I went in with Sprague on a scheme or anything of that kind, I would stand by him until the last end, but if I hadn’t, and Sprague got me into trouble, I would turn state’s evidence. He said there was just one thing standing in the way, the reason he didn’t. He said, as far as Sprague was concerned, he could send him to hell in a minute ”

Sprague was one of the witnesses who had testified for Campbell. This witness also testified to another conversation, in which he said to respondent, “If you did it, and worked a scheme, why then I would stand by him.” To this respondent replied that he would stand by him. Another witness testified that the respondent said to him, in a conversation about the Campbell case, that money ■would furnish evidence. This testimony made an issue of fact for the determination of the jury as to the existence of such an agreement or conspiracy on the part of the respondent and the other witnesses, and was competent for the jury to consider in determining the guilt of the respondent.

It is .next argued that the court neglected to charge the jury as to the presumption of innocence. The attention of the court was not called to this point. The court, however, did very fully instruct the jury that they must be convinced, by the evidence, of the guilt of the accused, beyond any reasonable doubt. This point is ruled by People v. Graney, 91 Mich. 646; People v. Smith, 92 Mich. 10.

The conviction is affirmed, and the court below directed to proceed to judgment.

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


author: Per Curiam.

text:
    FOSTER v. ROWLEY.
    Sale — Misrepresentation—Rescission op Contract — Waiver.
    The use of chattels by a purchaser thereof, for 30 days after he discovers the falsity of representations which induced the sale, constitutes a waiver of the right to rescind.
    Error to Ingham; Wisner, J., presiding.
    Submitted April 22, 1896.
    Decided July 1, 1896.

      Assumpsit by Seymour Foster against Louis E. Rowley for goods sold and delivered. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      M. V. & R. A. Montgomery, for appellant.

      Cahill & Ostrander, for appellee.
   Per Curiam.

In April, 1893, the defendant was ap-

pointed postmaster of Lansing, to succeed the plaintiff. After defendant’s appointment, and shortly before taking possession, he had various conversations with plaintiff in which the subject of purchasing of the plaintiff the furniture then in the office was discussed. A new post office was in process of construction by the government. Some time thereafter a purchase price was agreed upon between the parties, at $206.25, $100 of which was paid down, and time given for the balance. This action is brought to recover the balance claimed to be due.

It appears that the postmasters, prior to that time, had been required to furnish, and had furnished, at their own expense, the furniture and equipments for the office, and the property had been passed down from one postmaster to another by purchase. The plaintiff represented to the defendant that this furniture was what was required for use, and that he could not very well get along without it in the office; that he had purchased it from his predecessor, and claimed to the defendant that it was only fair that he should buy it from him. Defendant objected to the purchase, as the new office was in process of erection, and he said he expected the government would furnish the new office. The plaintiff stated to him that he thought the government would not furnish the new office. The plaintiff testified:

“I said to him I didn’t know; I had never worked in a first-class post office. I said I knew the government didn’t furnish second-class offices; * * * that, when he should come to go into the new building, the office by that time would be a first-class office, and that I didn’t know what the government would do with a first-class office; * * * and in the meantime he had got to have, furniture to run his office until the new post office was done.”

The plaintiff further testified that he told the defendant he had recently been to Muskegon, and had called on the postmaster there, and been shown through the office; that the postmaster told him that the government would not furnish him with a penny’s worth of furniture; that plaintiff had the impression, at the time he was talking with defendant, that Muskegon was a first-class office, and that he stated this fact to Mr. Rowley, with the honest belief that it was a first-class office; that, after some further negotiations, defendant took a list of the articles in the office, and wrote opposite the name of each article the price he was willing to pay for it; and that, when he came to an article he did not want, he struck it out, and finally remarked: “I think that is about right.” Plaintiff testified, further, that he had since learned that the post office at Muskegon was not a first-class office. He was asked:

“So you did inadvertently state as facts things that did not exist as facts ?
“A. Yes, sir.
‘ ‘ Q. And you stated those things for the purpose of inducing him to enter into this contract ?
iirA. Yes, sir; possibly.”

The plaintiff admitted that the price asked was greater than the actual value of the property, taking it as a whole, but says he told defendant that the value consisted in its being just what he wanted in the proper place, and that it was worth something to him because of that, aside from the intrinsic value.

Defendant testified that plaintiff admitted to him that the property was not worth the price asked, but claimed that it was necessary for the working of the office; that he called plaintiff’s attention to the fact that there was a new government building in process of construction, to be completed about January 1st, and that it seemed to him the government would put the furniture in, but plaintiff said that was not so; that, strange as it might appear, he knew the government did not furnish the buildings. Defendant also stated what plaintiff told him about the post office at Muskegon, to the effect that the postmaster there told him that he had found out at his own expense that the government would not put the furniture in, and that he had been obliged to put it in himself; that, upon this statement of the plaintiff, he was induced to make the purchase, but that the furniture was not worth more than from $25 to $50. Defendant further testified, on cross-examination, that he went into the new post office the following April, and that he had used this old furniture, and used it 10 months after [he found out that the plaintiff’s statements were not true.

At the close of the testimony, defendant’s counsel requested the court to charge the jury:

“1. Under the undisputed evidence, your verdict must be for defendant.”
“4. If the contract in question was entered into between the parties because of the representation of Mr. Foster that the furniture would be needed by Mr. Rowley in furnishing the new post office, and Mr. Rowley, believing such representation, contracted to purchase the same, the promise was obtained by fraud, and the plaintiff cannot recover.”

These requests were refused, and the court directed the jury substantially as follows:

“If you should find by a preponderance of the evidence that on the occasions which led up to the making of this agreement, and at the same time when it was finally consummated, Mr. Foster 'represented — not as an opinion, not giving it as his opinion, but asserting it to be a fact— that it was the policy of the government and its practice to require postmasters of this class to furnish the appliances for their offices, and if you find that he made that statement as a fact, and that it was relied upon and believed by Mr. Rowley, and that it was the main thing which induced him to enter into this contract, then whether Mr. Foster knew that it was true or not would be immaterial; it would amount in law to a fraud. * * * If you find that, within a reasonable time after it came to his knowledge that false representations had been made to him, he tendered back this property, and sought thus to rescind the contract, and did not continue to use it, that would be a rescission; but I think a man cannot simply make an offer to return property, and then continue to use it, to his advantage, and have it operate as a rescission of the contract in law.”

Certain other requests were given in the charge to the jury, which we do not deem it important to discuss here.

The testimony shows that, just prior to the commencement of this suit, the defendant notified the plaintiff that he would not keep the property, and plaintiff must take it away. This was not done, and defendant, as shown by his own testimony, continued to use it. It was the duty of defendant, as soon as he learned of the misstatements, to rescind the contract; and notice of such rescission must have been promptly given, and adhered to, in order to bind the parties thereto. The continued use of the property for some 30 days after he had learned the facts would be a waiver of the right of rescission, even though notice of such rescission had been given. Hubbardston Lumber Co. v. Bates, 31 Mich. 158; Dunks v. Fuller, 32 Mich. 242; Campau v. Lafferty, 50 Mich. 114; Craig v. Bradley, 26 Mich. 353; Gridley v. Tobacco Co., 71 Mich. 528; Beal v. Congdon, 75 Mich. 77; Dailey v. King, 79 Mich. 568. While the court left .the question of rescission to the jury, we think, under the defendant’s own testimony, the court should have instructed them to find a verdict for the plaintiff. We think defendant’s continued use of the property for 30 days after he learned of the alleged fraud amounted to a waiver of any intent to rescind the contract. Marthinson v. Insurance Co., 64 Mich. 384; Cobbs v. Fire Association, 68 Mich. 466; Peninsular Stove Co. v. Osmun, 73 Mich. 570.

The judgment is affirmed.


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    BRILLIANT v. WAYNE CIRCUIT JUDGES.
    Costs — Appeals prom Probate Court.
    The discretion of the circuit judge, in causes contested in the circuit court upon appeal from the probate court, to allow to either or both parties their costs to be paid out of the estate in controversy, is limited to the awarding of taxable costs, and an award to an executor of his actual exx>enses incurred upon the trial is unauthorized.

      Mandamus by Odelia Brilliant to compel the circuit judges of Wayne county to modify a judgment as to costs.
    Submitted March 3, 1896.
    Writ granted July 8, 1896.

      James H. Pound, for relator.

      James D. May, for respondents.
   Hooker, J.

The will of Julius Lefevre was admitted to probate in the Wayne probate court after a contest upon the ground of want of testamentary capacity. The contestants appealed, and were successful in the end, after three trials in the circuit court. Upon the last trial the circuit court entered a judgment that contestants recover their costs to be taxed, to be paid from the estate, and that the proponents recover from the estate the amount of their actual expenses incurred in the trial of the cause in the circuit and supreme courts, the same to be ascertained by the probate judge on the final settlement of the estate.

Under the statute (2 How. Stat. § 6791) the court might, in a meritorious case, allow costs payable from the estate to either or both parties, but it could not do more than award taxable costs. Cheever v. North, 106 Mich. 390. If an executor can be reimbursed for his actual expenses in following a case of this kind to higher courts, it must be in some other proceeding.

The writ will issue directing the circuit court to vacate, so much of the judgment as awards costs to the proponents ; relator to receive costs of this proceeding.

The other Justices concurred.


author: Grant, J. Moore, J.

text:
    DODDER v. SNYDER.
    1. Statute of Frauds — Agreements Relating to Lands.
    A parol agreement between the parties to a deed, reserving to the grantor certain trees and a right of pasturage, is within the statute of frauds.
    2. Same — Deeds—Consideration.
    The recital of the consideration in a deed is not conclusive, and, where it is established that the verbal promise of the grantee to build a fence furnished in part the consideration for the conveyance, damages may be recovered against him for a failure to perform. Moore, J., dissenting.
    Error to Shiawassee; Wisner, J., presiding.
    Submitted April 19, 1896.
    Decided July 8, 1896.

      Assumpsit by David L. Dodder against Franklin J. Snyder for the breach of a special contract. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.
    Plaintiff sold and conveyed to the defendant by a warranty deed the E. \ of the E. £ of the N. E. J, section 10, township 7 N., range 1 E., for an expressed consideration of $2,000. Plaintiff claims that in addition to the $2,000 the defendant agreed to build a certain portion of the fence between the land conveyed and certain other lands of the plaintiff, and that he reserved certain trees and the-right of pasturage. Plaintiff brought suit to recover damages for the failure to build the fence, in consequence-of which his cattle escaped from his own pasture.
    At-the conclusion of the plaintiff’s evidence the court struck' out the evidence, and directed a verdict for the defendant, upon the ground that the parol contract was a reservation in respect to lands, which the law required to be in writing or reserved in the conveyance.

      Watson & Chapman, for appellant.

      S. A. Tomlinson, for appellee.
   Grant, J.

(after staling the facts). So far as the parol contract included the reservation of the trees and the pasture, the learned circuit judge was correct in his instruction. Vanderkarr v. Thompson, 19 Mich. 82; Adams v. Watkins, 103 Mich. 431. But in so far as it included the-contract to build a fence, we think he was in error. The recital of a consideration in a deed is not conclusive, and it may be shown to be greater or less than the amount stated. Strohauer v. Voltz, 42 Mich. 444; Dean v. Adams, 44 Mich. 117; Mowrey v. Vandling, 9 Mich. 39. The court, at one time during the progress of the trial, recognized this distinction, and stated that it would permit evidence of an agreement to build the fence, but would exclude evidence of the reservation of. the pasturage.

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

Montgomery, J., concurred with Grant, J. Hooker, J., concurred in the result. Long, C. J., did not sit.

Moore, J.

I do not think the agreement in relation to the fence, resting in parol, can be enforced, and for that reason I dissent.


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    GAVIGAN v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY COMPANY.
    1. Master and Servant — Negligence—Scope oe Bmploybient— Assumption oe Risk — Injury to Railroad Employe.
    The fact that a servant is directed by a superior to perform a service outside of the scope of his employment, and is injured while attempting to perform such service, does not give him a right of action against the master for the injury so received, -where the dangers of the service were apparent, and its performance undertaken without objection. So held where an experienced section man, wliile engaged, with the other members of the section gang, in moving a ' loaded car by forcibly shoving an empty car against it, was ordered by the section boss to climb upon the loaded car and set the brake, and was injured by the empty car’s being pushed against him while he was climbing a ladder on the loaded car to execute the order.
    2. Same — Section Men — Fellow-Servants.
    . In such case the negligence, if any, was that of the section boss or of the men under his control, all of whom were fellow-servants of the injured employé.
    Error to Hillsdale; Lane, J.
    Submitted April 24, 1896.
    Decided July 8, 1896.
    Case by Andrew J. Gavigan against the Lake Shore & Michigan Southern Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      C. E. Weaver (George C. Greene and O. G. Getzen-Danner, of counsel), for appellant.

      O. M. Barre, E. J. March, and Watts, Bean & Smith, for appellee.
   Hooker, J.

The plaintiff was a- section hand upon a railroad, and had many years’ experience in such capacity, and as foreman of such gangs. On the day that he was injured, the section gang of which he was a member, and a gang of an adjoining section, were engaged in relaying a spur-track with rails that had been unloaded at a point upon said track. In order to distribute such rails, it was necessary to move two freight cars standing upon the track, and the plaintiff attempted to climb upon one to set the brake. While climbing up the ladder at the end of the car, the other car was pushed against him by the other men engaged in the work, and he was injured. He testified that he was ordered by the section boss in charge to climb upon the car, and that he supposed that he would have lost his place if he had refused, and that it was not a part of the duty of section men to move cars, or climb upon them to manipulate the brakes. The uncontradicted evidence shows that the plaintiff and all of his colaborers obeyed, without protest or question,' the direction to move the loaded car, and by pushing and the use of bars they had moved it for a distance, and to a point where the dust and dirt of the highway made the work difficult. Then they resorted to bumping the loaded car with an unloaded one, all uniting in pushing it with force against the loaded car several times, thereby moving it to a point in close proximity to the main track. It was to prevent its being run into the switch and upon the main Hack that the direction to climb the car and put on the brake was given.

We have so often held that the section boss is a fellow-servant with the men under him, and pointed out the distinctions applicable to the question of fellow-service, that we deem it unnecessary to repeat them here. We have no doubt that, in running the car back and forth, all of those engaged were fellow-servants. The important questions are:

1. Was the plaintiff asked to perform an extraordinary service, outside of the scope of his employment, in moving the cars, and in climbing the ladder for the purpose of setting the brake ?
2. If so, does it follow that the act of the section boss in requesting such service was the act of the master, and is the master liable for the injury under such circumstances ?

Counsel for the plaintiff appear to contend for the broad propositions that, in directing a service outside of the scope of the employment, the boss represented the master, and that, by consenting to perform the service, the plaintiff did not assume the risk, inasmuch as he might be discharged by the boss if he refused to perform the service. In other words, the master is to be considered an insurer of the servant performing extraordinary service by direction of a superior, whenever he chooses to obey a direction of one in charge for fear of discharge. If the master is to be charged with neglect, it is for a failure to perform a duty, and, had he himself given the command in this case, the only possible negligence would be the request to perform extraordinary service, unless there was some hidden danger from the service. Many cases hold that, where an employe of mature years and of ordinary intelligence and experience is directed by the employer himself to do a temporary woi’k, outside of the business he has engaged to do, and enters upon its performance without objection on account of his want of skill, knowledge, or experience in doing such work, no negligence can be predicated upon such act alone. Bailey, Mast. Liab. 220, and cases cited. The master who asks a servant to perform some hazardous service outside of his employment, the danger of which is not apparent, and of which the master is advised, is under an obligation to inform the servant of such danger; but where the danger is obvious, or equally known and apparent to both, the case is different. The analogy is close between such a case and one where one employs an infant or inexperienced person. In such case the master owes a duty to point out the danger; but, where the danger is obvious or known to such person, there is no such duty. Mc- Ginnis v. Bridge Co., 49 Mich. 466; Welch v. Brainard, 108 Mich. 38.

Counsel for plaintiff cite us to the cases of Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205, and Jones v. Railway Co., 49 Mich. 573, in support of their contention. A quotation ’ from Bailey, Mast. Liab. pp. 222-225, is in point here:

‘ ‘ While great stress is laid in some cases upon the fact that the risk has been increased, as well as, in other cases, that the servant was injured while in the performance of a hazardous act outside of his general employment, yet it is difficult to ascertain that any special importance is to be attached to that fact alone, any further than that the risks of the general employment, thus increased, are not assumed as risks incident to the employment, and therefore knowledge thereof, actual or presumed, must be shown by the master, unless they are such as are obvious, requiring no special knowledge or skill to understand or appreciate. If such dangers are not obvious, and the employé may not be presumed to understand or appreciate them, then he inust be warned and instructed. I know of no rule that, where the servant ' fully understands and comprehends the dangers of an increased risk, or of a risk attendant upon a temporary or occasional act of service, and he performs the act, or attempts to do so, the master is liable for the injury he may sustain, merely upon the ground of such increased risk, or risk attending such temporary employment. The liability in these as in other respects is made to depend upon the knowledge and experience of the servant, and the warning and instructions given, where any such are by law required. The rule has been stated that if, while in the performance of such a temporary service, the servant’s opportunity for observing the danger was equal to that of the company, or if he was required to perform an unusually dangerous service for good reason, as for the safety of passengers, then the master cannot be said to have been negligent.
“In Jones v. Railway Co., from the report of' the case, it might be understood that the mere fact of being required to perform other duties than such as were properly embraced in his contract would impose a liability upon the master to respond in damages for injury he might sustain while so engaged. Yet such could not have been intended by the court, but, rather, the ground for recovery was within the principles stated in Chicago, etc., R. Co. v. Bayfield. In fact, the court so state. There the recovery proceeded upon the ground of directing an inexperienced lad, who did not comprehend the danger, to perform the hazardous duty of applying brakes to moving cars.
“The same position was taken by counsel in Cole v. Railway Co., 71 Wis. 114 (5 Am. St. Rep. 201), to wit: That the mere direction of the master to perform such temporary and dangerous work is negligence on the part of the master sufficient to sustain the action of the employé so injured in the performance of such work while he is using ordinary care on his part. The court say: ‘We are very clear that the broad rule contended for by the learned counsel for the respondent is not sustained by the authorities, nor by the general rules of law which define the relations of employer and employé. Some of the cases cited may have some general statements which give some countenance to the rule as stated by counsel; but when the facts of each case are considered, it will, we think, be found that no such broad rule was' ever /intended to be sanctioned by the courts.’ The court further state that negligence of the master cannot be predicated simply on the fact that he directed his employé to do the work; that in every case of negligence the evidence must show some violation of duty on the part of the master. No case can be found where it has been held that the mere fact that the employer requested his employé to perform a temporary work outside of his ordinary employment was a violation of any duty which he owed to his employé. Tf the particular work ordered to be done is of a dangerous character, and one which requires peculiar skill in its performance, and the servant so directed has not the requisite knowledge or skill for doing the work with safety, and such want of skill is known, or might be reasonably supposed to be known, to the employer, in that case the direction of the master to do the work might be justly held to be a violation of duty which he owes to his employé, even though the employé undertook to do the work without objection or protest upon his part. The Wisconsin court reviews many leading cases upon the subject, including those relied upon by the respondent’s counsel, and asserts that none sustain the position contended for by such counsel. The court further say they are not called upon to decide what the rule would be if the employé, when ordered to do such temporary work, objected on account of his want of experience and knowledge, and, notwithstanding such declaration, his employer insisted upon it, and thereupon he undertook to do the work, after such protest, rather than subject himself to the risk of being discharged from his employment. They neither approve nor disaffirm the rule stated in Leary v. Railroad Co., 139 Mass. 587 (52 Am. Rep. 733). The weight of authority, as stated in note to Cole v. Railivay Co., is that the mere fact of objection and protest by the employé,- the conduct of the master not amounting to coercion, does not change the rule; and many cases are cited.”

See, also, Keenan v. Railroad Co., 145 N. Y. 190. In Wheeler v. Berry, 95 Mich. 251, it was held that—

“ The claim that a master negligently put a servant at dangerous work, against his protest, and outside of the scope of his employment, is sufficiently answered by proof that the servant was thoroughly instructed in the use of the saw by which he was afterwards injured; that whatever danger there was was apparent; that he had full and complete knowledge of the risk; that he was strong in body and mind, and in the full possession of all of his faculties; and that he had frequently performed the same work for a year, and knew that he was liable to be called upon to do it. ”

The evidence shows that the section hands were engaged in track work, and without objection, or apparent thought upon the part of any of them that it was out of the line of their duty, proceeded to move a car which was an obstacle to the prosecution of their work. While it may be said that the scope of their employment was a question of fact, and therefore for the jury, the same might be said in a case involving the removal of a rock or other debris that had fallen or been placed upon the track, or a train or car that had been derailed; and if the jury could be found to sustain such claim, we might not be justified in holding it error to submit the question to the jury, though satisfied from common observation that the work of the section gang is supposed to include nearly all kinds of labor that may be imposed upon them by the road master which relates to or facilitates the maintenance of the track; in short, that they are emergency men, so far as the track is concerned. A section boss who should not require his gang to push a car onto a side track, thereby averting a possible disaster, would be properly subject to severe condemnation, if nothing more; and while we are not disposed to say that it was improper to submit this case to the jury, inasmuch as witnesses were found to imply by their testimony that, according to the usages of the road, the boss should have suspended operations until an engine could have been procured to move the car, and a brakeman to climb the car and manage the brake, we think, under the proof in the case, that a verdict of that kind might properly be set aside by the trial court as contrary to the evidence. But, however that may be, we think that it conclusively appears that the plaintiff had as much information as to the character of the work and its possible dangers as any one, and that there is nothing that can appropriately be called coercion. He admits that he was familiar with his duties, and railroad affairs generally, and there was no special danger in climbing the car. It consisted in the act of his fellow-servants, who, negligently or otherwise, pushed the car down against the loaded car before he got to the top of the ladder, and this risk was obvious. This was a risk he assumed when he entered upon the service required, and, under the authorities cited, there is nothing to show a breach of duty upon the part of the employer. If the boss was careless in causing the car to be pushed, it was the negligence of a fellow-servant.

The judgment is reversed. No new trial will be ordered.

Grant and Moore, JJ., concurred with Hooker, J. Montgomery, J., concurred in the result. Long, C. J., did not sit.


text:
    MITCHELL v. PRANGE.
    1. Negligence — Pleading.
    A recovery cannot be had in a negligence case upon a ground of negligence not alleged in the declaration.
    2. Same — Blasting—Instructions to Jury.
    Therefore, where a blacksmith was injured by a kick from a horse which was frightened by an explosion in the vicinity of the shop, it was error, in an action against the excavators who caused the explosion, to permit a recovery upon the ground that the charge of dynamite was excessive, or that it was not properly covered, when the only ground of negligence set up in the declaration was the failure of the defendants to give notice of the blast.
    3. Same — Notice.
    Where excavations had been in progress in the vicinity of plaintiff's shop for several weeks, and dynamite blasts were of frequent occurrence, the defendants were not negligent in failing to apprise him of intended blasts, as they were events which, under the circumstances, he should have anticipated.
    4. Same — Sewer Trenches.
    One excavating a trench for a sewer cannot be said to have been negligent in not refilling it before exploding a dynamite blast, in the absence of evidence to show that such a requirement would be a reasonable one.

      5. Same — Construction of Contract.
    A provision in a contract for the construction of' a sewer, requiring the contractor, in all cases where blasting is necessary, to cover the blast with brush or timber sufficiently to prevent injury to persons or property, is designed to prevent injury from fragments which might otherwise be thrown from the trench, and doe's not cover a case where one is injured by a horse which was frightened by the explosion.
    Error to superior court of Grand Rapids; Burlingame, J.
    Submitted April 24, 1896.
    Decided July 8, 1896.
    Case by John Mitchell against Charles Prange and others for personal injuries. From a judgment for plaintiff, defendants bring error.
    Reversed.

      Birney Hoyt, for apjiellants.

      Peter Doran (Charles A. Watt, of counsel), for appellee.
   Hooker, J.

The plaintiff was injured by the kick of a horse which he was shoeing, and recovered a judgment against the defendants, who were engaged in excavating a trench for a sewer, some hundreds of feet distant from his shop. The plaintiff’s claim is that the horse was frightened by an explosion in the trench, caused by the defendants for the purpose of excavating rock. Counsel for the plaintiff admitted upon the trial that blasting was necessary. The first count of the declaration alleges the explosion as wrongful; the second alleges that it was the duty of the defendants to give notice, by ringing a bell or otherwise, to people in the vicinity, that a blast was to be made, which, duty was neglected. Upon the trial it was claimed that defendants’ negligence consisted in using an excessive charge,- in failing to properly cover it, and in failing to give the proper notice of the intended blast; and the case was allowed to go to the jury upon such theories.

It was improper to allow the jury to find a verdict upon the ground that the charge was excessive, or that it was not properly covered, as neither was alleged in the declaration. Furthermore, there was no evidence that the charge was an improper one, or that any usual method of covering would have obviated the danger. It was urged that filling the trench with dirt would have lessened the noise, but it was not shown to be a proper or usual or reasonable thing to do, to excavate and refill a trench each time they put in and explode a blast. The specifications under which the work was done required that—

‘ ‘ When rock is found in the bottom of a trench, it is to be taken out,to a depth of six inches below the bottom of the sewer, and replaced by strong gravel, well rammed. Ledge rock, that cannot be removed by pick or bar, will be paid for as extra work at a price named in the proposal for such excavation. Should the contractor fail to name a price for such rock excavation, no extra allowance will be made therefor. The estimate of the quantity of rock excavated will be based upon the bottom width of trench required for laying the different dimensions of sewers, as used in the original estimate of quantity of excavation, with side slopes of one-fourth of a foot horizontal to one foot vertical. In all cases where blasting is necessary, the blast is to be carefully covered with brush or timber sufficient to effectually prevent injury to persons or property.”

The provision for covering was evidently to protect persons and property from injúry by fragments which might otherwise be thrown from the trench, and it was error to instruct the jury as follows:

‘ ‘ The contract with the city requires that, in all cases where blasting is necessary, the blast is to be carefully covered with brush or timber, sufficiently to effectually prevent injury to persons or property. Now, was this blast so carefully covered with brush or timber as to sufficiently and effectually prevent injury to persons- or property; or, in other words, did these defendants use all the precaution, notices, and warnings, and cover that blast of dynamite in such a manner, as prudent men ought, under like circumstances, to have exercised, is a question for you to determine.”

Nor do we think the defendants negligent in not taking measures to apprise the plaintiff of the intended blast. It appears that they did take precautions to warn passersby within a reasonable distance, but it would hardly be reasonable to expect them to give notice to every one who resided or worked within a radius of 500 feet, especially after the business had been going on, to the knowledge of such persons, for several weeks. The plaintiff knew that blasting was a common occurrence, and to be expected at any minute. This did not deter him from attempting to shoe the horse. He did not know when the -blast was coming, and, if the defendants knew that he h,ad a blacksmith shop in the vicinity, they did not know that he would have the foot of a spirited horse in his lap. Both were engaged in lawful acts, and upon this record the injury appears to be a casualty, which is not ascribable to the defendants’ neglect of duty.

Judgment reversed, and a new trial ordered.

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


author: Moore, J.

text:
    SAFFORD v. DETROIT BOARD OF HEALTH.
    1. Boards of Health — Infectious Diseases — Quarantine—Compensation.
    Act No. 403, Local Acts 1893, prescribing the powers and duties of the board of health of the city of Detroit, provides: “In case of pestilence or epidemic disease, it shall be the duty of the board of health to take such measures, and to do and order and cause to be done such acts, for the preservation of the public health, as they may in good faith deem the public safety and health to demand.” Held, that it was the duty of the board to award compensation for damages directly arising from its action in using an hotel for an hospital during an epidemic of smallpox among the inmates, and in causing the destruction of infected iiroperty

    2. Public Boards — Mandamus.

      Mandamus will lie to conrpel a public board to awai'd compensation for damages resulting from its official action, where the duty to pass upon the amount of compensation is established, and it refuses to make any award.
    3. Appeal — Waiver op Objections.
    Where an issue is framed and a case is presented upon its merits, an objection to the regularity of the iiroceedings cannot be raised on appeal.

      Certiorari to Wayne; Adams, J., presiding.
    Submitted April 22, 1896.
    Decided July 8, 1896.

      Mandamus by Mason S. Salford to compel the board of health of the city of Detroit to award compensation for damages arising from the quarantining of relator’s place of business. From an order granting the writ, respondent brings certiorari.

    Affirmed.

      Fred A. Baker (George Gartner, of counsel), for relator.

      John J. Speed and D. E. Heineman, for respondent.

       The especial powers and liabilities of municipalities in time of epidemics is the subject of a note to Thomas v. Mason, (W. Va.) 26 L. R. A. 727.

   Moore, J.

The respondent in this case asks for a review by certiorari of the proceedings had in the Wayne circuit court, in which respondent was compelled by mandamus to audit and allow a certain claim in favor of relator. Relator was the proprietor of the Merchants’ Hotel, in the city of Detroit. June 1, 1894, Louisa Leonard, a servant in his employ, was taken ill. Her disease was pronounced measles by Dr. Cleland. As the young woman failed to improve, Safford telephoned the board of health that he feared the case was smallpox. In reply, one Goodson, contagious disease clerk at the health office, said: “It is all right; only a case of measles. Don’t be alarmed. And it would be best for you to carry out Dr. Cleland’s orders.” June 6tli the girl died. An investigation was made by the health department, and the case pronounced smallpox. The officers of the board of health immediately took possession of the Merchants’ Hotel, and placed it in quarantine; confining therein 13 persons, several of whom were subsequently stricken with smallpox, and detained in the hotel, and there treated, by the board of health. The quarantine continued until June 29th. After this the board of health disinfected the premises, and destroyed a considerable portion of the furniture which had become infected. September 29th relator presented a claim to the board of health, asking for compensation for the use of the hotel as an hospital, for damaged and destroyed property, and for damage to his business through respondent’s neglect to remove the patients to some other place for treatment, thereby causing him to lose his business. The entire amount of this claim, which was disallowed in toto, was $6,106.75.

Upon relator’s petition, an order to show cause was granted. Respondent answered, and issue was framed thereupon by several pleas putin by relator to such answer. The fourth and fifth pleas set up new matter from that in the petition, in which the action of the board of health is rendered subject to criticism. These pleas aver that respondent was negligent in the Leonard case, and needlessly allowed several persons to become exposed, many of whom were subsequently stricken with smallpox, two dying; that, if Miss Leonard had been promptly removed, it would not have been necessary to quarantine the hotel; that, after the hotel was quarantined, no person was allowed to go in or out for a period of nine days; that relator, his wife, and 11 other persons were confined without any medical attendance whatever, and without any attention on the part of the board of health. The jury rendered a special verdict of direct damages for relator, and judgment was entered in the sum of $981.70, including costs taxed at $90.20. Relator asked for a new trial, which was denied, and the case comes here, as previously stated.

The proceeding in the court below was a ■ somewhat unusual one, but no objection was made by counsel for respondent to the manner of framing the issue, and the case was presented upon its merits; so that the objection to the irregularity of the proceedings, now raised for the first time, must be treated as waived.

For the purposes of this case, I think the verdict of the jury may, with much propriety, be treated as advisory to the court, inasmuch as he listened to all the testimony, and found, in his written opinion, the facts to be as stated by the jury. The claim of Mr. Safford for consequential damages was rejected. The amount of the judgment was for direct damages growing out of the action of the board of health in using the hotel for an hospital, the destruction of the infected property, and the burial of Miss Leonard, who died of smallpox. The question involved is whether, under the law and the facts, the respondent is liable? Its contention is that what was done by it was necessary, in the interest of the public welfare, and that the loss.must be borne by Mr. Safford. It is the claim of the relator that the board of health of the city of Detroit stands in the same relation to the city that the township board of health does to the township, and that it has like duties and powers in cases of contagious diseases, and that the statute provides for compensation when property is occupied or destroyed to prevent the spread of such diseases.

Section 11, Act No. 403, Local Acts 1893, provides that—

“In case of pestilence or epidemic disease, * * * it shall be the duty of the board of health to take such measures, * * * and to do and order and cause to be done such acts, for the preservation of the public health, though not herein or elsewhere or otherwise authorized, as they may in good faith deem the public safety and health to demand.”

The next section provides that the common council arid board of estimates shall provide a fund for the maintenance of the board of health in performing the duties and obligations imposed by law on the board, and makes the city treasurer the treasurer of the health board. It is claimed that, whether or not the county of Wayne should eventually be liable to pay these expenses, the account must first be presented to, and acted upon by, the board of health, in order to fix the amount of the liability.

The general law confers upon township boards of health large powers in the treatment of contagious diseases. See 1 How. Stat. chap. 39. Section 1647 makes it incumbent on the board of health to make provision for the care of a sick or infected person “by providing nurses and other assistance and necessaries, which shall be at the charge of the person himself * * * if able, otherwise at the charge of the county to which he belongs.” In construing this section, the courts have held that a city may make itself liable. Rae v. City of Flint, 51 Mich. 526. They have also held that a township may make itself liable. Wilkinson v. Long Rapids Tp., 74 Mich. 63. It has also been held, in construing this section, “that the destruction of the infected property used in the care of the sick is so plain a necessity as to need no discussion.” Elliott v. Kalkaska County Supervisors, 58 Mich. 452 (55 Am. Rep. 706). In the last-mentioned case, Justice Campbell said: “The exigency of a pestilence will not wait for the convenience of parties, and measures must be prompt and effectual. The board of health must have power to make necessary contracts, and this involves all their terms;” citing People v. Supervisors of Macomb Co., 3 Mich. 475.

In the case at issue, it is clearly established that the relator acted in good faith, as did the board of health. We think it is within the contemplation of the law that, when property is used or destroyed or services rendered under such circumstances as in this case, compensation should follow. We also think it the duty of the board of health to pass upon the question of the amount of compensation, and, where they refuse utterly to award compensation, that a writ of mandamus may be invoked to compel them to do so.

The judgment is affirmed, with costs.

Geant, Montgomeey, and Hooker, JJ., concurred. Long, C. J., did not sit.