author: Kuhn, J.

text:
    MOLBY v. MURRAY.
    1. Witnesses — Estates of Decedents — Bills and Notes.
    In an action by an indorsee of a note that had been transferred to plaintiff by another indorsee who obtained it from the administrator of the payee’s estate, defendant was prohibited from testifying to matters equally within the knowledge of decedent by 3 Comp. Laws, § 10212, and Aot No. 30, Pub. Acts 1903, 5 How. Stat. (2d Ed.) § 12856, though the transfers took place after the death of the payee. .
    2. Bills and Notes — Evidence—Title.
    Testimony tending to show that plaintiff purchased the note sued on from his grandmother, in consideration of services rendered, that the latter received it from the administrator of the payee’s estate, supported by the indorsements on the instrument, raised a question of fact as to ownership.
    3. Same — Statutes—Limitation of Actions.
    Whether an indorsement of payment for the use of a team of defendants was authorized by him, so as to extend liability under the statute of limitations, presented a proper question for the jury.
    Error to Hillsdale; Chester, J.
    Submitted April 11, 1912,
    (Docket No. 146.)
    Decided December 17, 1912.
    Assumpsit by George S. Molby against Abner Murray on a promissory note. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      C. A. Shepard and B. E. Sheldon, for appellant.

      Powell & Chase (_F. A. Lyon, of counsel), for appellee.
   Kuhn, J.

The defendant is sued in assumpsit as the maker of the following note:

“ Reading, Michigan, Oct. 2,1900.
“$100.00.
“ Sixty days after date, for value received, I promise to pay to the order of Byron Berry, one hundred dollars, at the State Bank of Reading, with interest at the rate of six per cent, per annum, interest payable annually from date, until paid.
“Abner Murray.”

Indorsements are as follows:

“Oct. 2-01 interest paid in full, $6. Noy. 12th-04 by team, $2.50. Pay to the order of Phebe E. Berry, Elvin P. Starr, Admr. Estate of Byron Berry, without recourse. Pay to Geo. S. Molby or order. Phebe E. Berry.”

The main question involved in this appeal is whether the trial court erred in refusing to permit the defendant Murray to testify to matters equally within the knowledge of Byron Berry, deceased, the payee of the note. The testimony was excluded by authority of section 10212, 3 Comp. Laws, as amended by Act No. 30 of the Public Acts of 1903 (5 How. Stat. [2d Ed.] § 12856), which provides, in part, as follows:

“ When a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees or personal representatives of a deceased person, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify at all to matters which, if true, must have been equally within the knowledge of such deceased person.”

Counsel for defendant urge that the word “assigns,” as used in this statute, can include only a person to whom the property or right is transferred by a deceased person in his lifetime, and cite in support of this proposition the case of Ripley v. Seligman, 88 Mich. 177 (50 N. W. 143). This question was not involved in this case because the assignment was made by the deceased in his lifetime, and the court held that such an assignee would come within the meaning of the statute. The following language is also used:

“ The statute is broad enough to cover successive transfers, or where the controversy depends upon the acts or dealings with the property of the deceased in his lifetime; and any one who is called upon to prosecute or defend some interest which is affected by the act or agreement of the deceased party through whom he claims may invoke the protection of the statute to shield his interest from the testimony of the opposite party to matters which, if true, were equally within the knowledge of the deceased person through whom he claims.”

In the case of Olin v. Henderson, 120 Mich. 154 (79 N. W. 180), Chief Justice Grant said:

Defendant was asked to testify to a conversation between him and Mr. Campau, deceased, in 1878, in regard to the building of this fence. This was excluded, under 3 How. Stat. § 7545, as amended by Act No. 121, Pub. Acts 1895. Counsel sought to defend the admission of this testimony upon the ground that the plaintiffs are not the assignees of Mr. Campau, but are grantees of his heirs several times removed, and that the statute only applies to a case where the property or right was transferred by the deceased in his lifetime. We think the statute is broad enough to include this case within the beneficent prohibition. This statute was held in Lloyd v. Hollenback, 98 Mich. 203 [57 N. W. 110], to include the heir. If it includes the heir, for the same reason it should include the grantee or assignee of the heir. It was also held in Ripley v. Seligman, 88 Mich. 189 [50 N. W. 143], that the assigns of a deceased person include the grantee of the grantee of the deceased person. The testimony was properly excluded. ”-

See, also, Letts v. Letts, 91 Mich. 596 (52 N. W. 54). We believe this to be controlling, and the court did not err in excluding the testimony.

It is also urged that there was no proof of ownership of this note on the part of the plaintiff. An examination of the record discloses that there was evidence of ownership in the plaintiff, who testified:

“ I know Byron Berry and Phebe Berry. She is my grandmother. I know Elvin P. Starr. I remember purchasing a note of my grandmother. It was in the fall, about 1904, that I received this note from my grandmother.
“Q. And did you pay her the consideration for the note ?
"A. Why, in services I did.”

The administrator, Elvin P. Starr, testified:

“Q. Now this note came in the administration and distribution of the estate. This note came to Mrs. Phebe Berry ?
“A. Yes, sir. * * *
“Q. Well, what did you do with the note ?
“A. I turned it over to Mrs. Berry.”

The question of ownership was properly submitted to the jury, and they were justified in finding ownership in the plaintiff upon this testimony.

We are of the opinion that the question of whether or not the indorsement of $2.50 for the use of the team was authorized by the defendant was properly submitted to the jury.

We find no reversible error in the record, and the judgment is affirmed.

Moore, C. J., and Steers, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


source: Caselaw Access Project

license: Public Domain

text:
    PRUNER v. DETROIT UNITED RAILWAY.
    1. Pleading — Declaration—Joinder of Parties — Counts.
    No reversible error was committed on the trial of an action for negligence in which two defendants were joined by one count of the declaration, while each of the other counts severally charged one defendant with the injury, in overruling an objection to the declaration for misjoinder of parties.
    2. Same — Trial—Practice—Abatement and Revival.
    Circuit Court Rule 27, permitting plaintiff to go to trial as to joint defendants without discontinuing and requiring the jury to return a verdict against the defendants that are liable, applies to aotions of tort as well as to actions ex contractu.

    3. Evidence — Exclamations of Pain — Personal Injuries.
    Natural exclamations of pain made by plaintiff 30 minutes after her injury were competent, unless they amounted to narrations of past conditions.

    4. Same — Photographs.
    When they are properly identified and their accuracy is proved, photographs of the place of injury are admissible, but pictures obtained after the accident should not he introduced without pointing out to the jury any changes that have occurred; the determination usually is of a discretionary nature, and rests with the trial judge.

    5. Trial — Argument—Misconduct oe Attorney.
    Improper argument of plaintiff’s attorney to the effect that no one would sustain plaintiff’s injuries for any amount of money, where he withdrew his remark when defendant’s attorney objected, was not so prejudicial as to require that the case be reversed.
    6. Same — Charge.
    Nor will the court reverse the judgment because the trial judge omitted to instruct the jury as to the question of plaintiff’s negligence, which he might properly have referred to, no request being made for such instructions.
    Error to Wayne; Murfin, J.
    Submitted April 11, 1912.
    (Docket No. 18.)
    Decided December 17, 1912.
    Rehearing denied March 20, 1913.
    Case by Nancy Pruner against the Detroit United Railway and the city of Detroit for personal injuries. As to defendant city a verdict was directed by the court. Judgment for plaintiff against the remaining defendant which brings error.
    Affirmed.

      Brennan, Donnelly & Van De Mark and Corliss, Leete & Joslyn (William Or. Fitzpatrick, of counsel),' for appellant.

      Merriam, Yerkes & Simons, for appellee.

      As to how near the main transaction declarations must be made in order to constitute part of the res gestse, see note in 19 L. R. A. 733.
      On the admissibility of expressions or statements of present pain made during sickness or subsequent to injury, see note in 24 L. R. A. (N. S.) 253.

      As to the use of photographs as evidence generally, see note in 35 L. R. A. 802; and as to the effect and conclusiveness of photographs introduced in evidence, see note in 15 L. R. A. (N. S.) 1162.

   Kuhn, J.

In July, 1909, the Michigan Central tracks in the city of Detroit were crossed on Baker street, which runs, approximately, east and west, by a bridge. The approach of the bridge, on the easterly end thereof, commences about 30 feet west of the westerly curb of Fourteenth street) which crosses Baker street. The incline from this point to the top of the bridge is about 120 feet. Across the north end of the bridge, from about the center of the easterly approach, there is a handrail, and immediately south of the rail is a plank walk about 6 feet wide for the full length of the easterly approach. Immediately south of the end of this plank walk, and at a distance varying from about 1^ to 2 inches at the lower, or extreme easterly, end of the approach, to about 6 inches at the top of the easterly approach, is the north rail of the north, or westbound, street car track of the defendant company. It is the claim of the plaintiff, supported by competent testimony, that on the 19th day of July, 1909, she was walking east on the Baker street bridge; that she had left the top of the bridge and was walking down the incline; that an open, single-truck Baker street car was coming up the incline at a fast rate as she was going down, and as the car passed the plaintiff it was jumping or teetering up and down to such an extent that the fender of the car hit the planks under her feet, tore them loose, threw her down and against the car, and seriously injured her. Plaintiff brought suit by declaration in the court below against, the city of Detroit and the Detroit United Railway. On the trial, when the proofs were closed, the court directed a verdict in favor of the city of Detroit and submitted the case to the jury on the liability of the Detroit United Railway. The jury found a verdict in plaintiff’s favor, and judgment was entered thereon. A motion for a new trial was made and denied, and the case brought into this court by writ of error.

Error is alleged because of a misjoinder of defendants. The declaration contains a several count against the city of Detroit and one against the Detroit United Railway, respectively, and a joint count charging both defendants with joint negligence. It is well established in this State that an act wrongfully done by the joint agency or co-operation of several persons will render them liable jointly or severally. Cuddy v. Horn, 46 Mich. 596 (10 N. W. 32, 41 Am. Rep. 178); Malmsten v. Railroad Co., 49 Mich. 94 (13 N. W. 373).

Circuit Court Rule 27 provides as follows:

“ But in case an action is brought against two or more defendants, the plaintiff shall not be required to discontinue as to any of them, but the jury shall show by their verdict, or the court by its finding, in a trial by the court without a jury, which of them are and which of them are not liable to the plaintiff, and judgment shall be given accordingly.”

It is urged that this rule applies only to actions ex contractu, and the case of Durgin v. Smith, 115 Mich. 239 (73 N. W. 361), is cited in support of this contention. This was an action in assumpsit, and the court held that in actions ex contractu Circuit Court Rule 27 applies. The court did not say that the rule does not apply to cases sounding in tort. In the rule itself no distinction is made between actions ex contractu and ex delicto. Section 196, 1 Comp. Laws, not only gives this court the power to formulate general rules to establish the practice of the circuit courts in civil suits ex contractu, as set forth in subdivision 8, but also, in - subdivision 10, empowers the court—

“ To provide the manner by which a discontinuance may be entered against parties improperly joined in any suit, and by which parties improperly omitted may be joined in the suit and brought in to answer thereto, if within the jurisdiction of the court.”

Circuit Court Rule 27 is an application of the legislative grant as embodied in subdivision 10 of the section as well as subdivision 8.

The plaintiff’s husband and another witness were allowed to testify, over objection, as- to exclamations of pain made by the plaintiff at the time she was brought home, approximately 30 minutes after the injury. The general rule is well settled in this State that declarations of present suffering are admissible in evidence and are not objectionable so long as they do not amount to narrations of past conditions or sufferings. Johnson v. McKee, 27 Mich. 471; Mayo v. Wright, 63 Mich. 32 (29 N W. 832); Lacas v. Railway Co., 92 Mich. 412 (52 N. W. 745); Girard v. City of Kalamazoo, 92 Mich. 610 (52 N. W. 1021); Burleson v. Village of Reading, 110 Mich. 512 (68 N. W. 294); McKormick v. City of West Bay City, 110 Mich. 265 (68 N. W. 148); Strudgeon v. Village of Sand Beach, 107 Mich. 496 (65 N. W. 616). In the present case, the exclamations and complaints of the plaintiff in her home were made under circumstances which indicated that they were the natural and ordinary exclamations of pain made ante litam motam.

At the trial, eight photographic views of the scene of the accident were received in evidence over objection. The photographs were taken two or three days after the injury. The photographer who took them testified as to their accuracy, and sufficient testimony in support of them was offered to justify their admission. Sterling v. City of Detroit, 134 Mich. 22 (95 N. W. 986).

The objection made, that five of them, Exhibits 2, 3, 5, 7, and 8, show cars going up the incline, none of which was the car that caused the injury, is not without difficulty. The record discloses that the car which it is claimed caused the injury was an open single-truck Baker car, No. 812. All the cars depicted in the photographs are of the same type of car. No claim is made that any of the cars depicted in the photographs is car No. 812, and the photographs clearly show this. At the time they were offered in evidence, the court said:

“ I think these photographs may be received for whatever they are worth. There is no doubt about the right of counsel to argue to the jury the different contentions they make concerning them. But I understand from this witness, who is a commercial photographer of several years’ experience, according to his testimony, that they are correct representations, so far as the photographic art can make them, of the scene at the time he took them. We all of us know some of the peculiarities of photography, as already developed by counsel. I think the photographs may be received for whatever they are worth.”

In photographs there should be a substantial identity in the person, place, or thing photographed and that which the jury are to consider in the case. It is difficult, and often impossible, to obtain a photograph of the scene of the accident at or about the time of the accident, but, having in mind the object sought, the assisting of the jury by knowledge of the locality to judge the conduct of the parties with reference to the issue raised, the only practical rule would seem to be that the changes must not be such as to destroy the substantial identity. The changes should be carefully pointed out and brought to the jury’s attention. With these safeguards, the subject must be left largely to the discretion of the trial judge, and, while in the instant case the court might very properly in his charge have called the jury’s attention more particularly to the changes, still we cannot say that his failure so to do was prejudicial error under the circumstances of this case.

During the argument, counsel for the plaintiff made an improper remark to the jury. The following colloquy occurred between the court and counsel:

Mr. Yerkes: Gentlemen, take this home to yourselves and think about it yourselves and put yourselves with the evidence on both sides and say who is to blame and who should pay for this woman’s suffering. Money cannot make her good, gentlemen. You know it, and I know it. None of us, for all the money the street railway has got, would stand in her place today.
Mr. Fitzpatrick: Just a moment. I think I will have to interrupt counsel. I object to that argument as improper.
Mr. Yerkes: If it is improper, I will consent that it be—
The Court: You may have an exception.
“Mr. Yerkes: Then, gentlemen, don’t pay any attention to it.
“Mr. Fitzpatrick: I ask your honor to rule upon it.
“ The Court: No doubt about its being improper discussion. I did not make any further ruling because counsel admits its impropriety and withdraws it.”

The improper statement made was withdrawn by counsel and corrected by the court. The conduct of counsel in making such an improper statement should not be approved, but the question as to whether it was reversible error was passed on by this court in Wheeler v. Jenison, 120 Mich. 422 (79 N. W. 643).

Exception is taken to the charge of the court, but a careful reading of the charge satisfies us that the case was submitted to the jury under proper instructions. It is claimed that the court erred in not instructing the jury as to the question of contributory negligence. No request was made to the court to make such charge, and it cannot now be urged upon appeal as a ground for reversal. It is a rule of very general application that, if instructions are correct as far as they go, it cannot be assigned as error that the court omitted to instruct on all points involved in the case, if the attention of the court has not been directed thereto by special requests for instructions on those points. 38 Cyc. p. 1693; Rankin v. West, 25 Mich. 195; Crowell v. Truax, 94 Mich. 585 (54 N. W. 384); Little v. Williams, 107 Mich. 652 (65 N. W. 568); Record Publishing Co. v. Merwin, 115 Mich, 10 (72 N. W. 998); Hovey v. Telephone Co., 124 Mich. 607 (83 N. W. 600); Miller v. Shumway, 135 Mich. 654 (98 N. W. 385); Hewitt v. Lumber Co., 136 Mich. 110 (98 N. W. 992); Parkey v. Galloway, 147 Mich. 693 (111 N. W. 348); Hammond v. Porter, 150 Mich. 328 (114 N. W. 64); Stuart v. Holt, 166 Mich. 549 (131 N. W. 1100).

We find no reversible error in the record, and the judgment of the court below is therefore affirmed.

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


author: Bird, J.

text:
    DALTON v. MERTZ.
    1. Pleading — Assignment—Mortgages—Inconsistent Positions —Void Instruments.
    One filing a bill to have an assignment of an interest in a land contract declared not absolute but security for advances made, cannot consistently claim that the assignment is void for want of consideration. .
    2. Mortgages — Declaring Assignment Given as Security.
    Complainant’s testimony that he executed an assignment of his half interest in a land contract on which default had been made, intending to secure advances of his cotenant, who gave testimony disputing that of complainant, held, insufficient to support the burden of proof.
    Appeal from Wayne; Murfin, J.
    Submitted June 5, 1912.
    (Docket No. 26.)
    Decided December 17, 1912.
    Rehearing denied February 18,1913.
    Bill by Robert M. Dalton against William M. Mertz to redeem from an alleged mortgage in the form of an assign'ment of an interest under a land contract. From a decree for defendant, complainant appeals.
    Affirmed.

      W. G. Fitzpatrick and M. Hubert O’Brien, for complainant.

      Frank N. Benaud and Frazer, Griswold & Slyfield, for defendant.

       As to whether a deed absolute on its face, but intended as a mortgage, conveys the legal title, see note in 11 L. R. A. (N. S.) 209.

   Bird, J.

The purpose of complainant in bringing this suit was to have an assignment of a land contract declared a mortgage. The trial court refused to grant him relief, and he has appealed to this court for similar relief.

Complainant and defendant are lawyers and reside in the city of Detroit. For several years before this trouble arose they occupied the same office and did business under a firm name, although they were not partners as between themselves. Complainant gave some of his attention to buying and selling real estate and in the forepart of the year 1907 there was placed with him for sale a tract of 44 acres of land in Crosse Pointe township. The sale price was $35,000 and his commission was fixed at $1,000. Both complainant and defendant seemed to be impressed with the future prospects of this land, and complainant suggested that defendant purchase It. Defendant explained to him that his means were too limited to engage in a deal involving such a large amount, and that, if he should so engage and be unable to carry it through, he might lose what little he possessed. It was then proposed and agreed that they should both purchase it and make it a joint venture. Charles W. Restrick, the owner, was seen by complainant, and a deal arranged whereby the premises were sold to complainant on a land contract, dated September 24, 1907, for $34,000. The terms were $1,000 payable when the contract was executed, $9,000 in 60 days, and the balance in sums of not less than $3,000 each year. The first payment was promptly made. The second payment of $9,000 was not paid when due because complainant was unable to pay his share of it. After some delay, he arranged with Restrick to accept a payment of $2,500 with some accrued interest in lieu of the $9,000 payment. Each gave his check for $1,262.50 to cover this payment. Complainant’s check was postdated. When it became payable it was presented at the bank, and payment was refused by reason of “ no funds.” The check was renewed but was never paid. About this time complainant’s financial matters became very much involved, and he was unable to meet his share of the payments. Defendant hesitated to meet his share of them for fear he would lose all. Matters went along in this way until November 4, 1908, when Restrick forfeited the contract for the nonpayment of upwards of $10,000 of principal and interest. Three days later, on November 7th, complainant executed and delivered to defendant an assignment of all his interest in the contract; the defendant agreeing therein to assume all the obligations of complainant imposed by the contract. Subsequently defendant secured assistance, and on November 9th he made a new arrangement with Restrick Whereby he consented to the assignment and arranged as to future payments. From that time on the defendant made payments, and when this suit was begun in August, 1910, he had paid thereon upwards of $13,500 besides paying taxes, insurance, and for improvements.

In June, 1910, complainant demanded a reconveyance of a one-half interest in the contract, and later he offered to reimburse defendant for one-half of the payments made thereon, his claim being that he conveyed his one-half interest in the contract to secure defendant for whatever advances he might make on his account. This demand was refused, and later in the summer this suit was commenced to enforce the demand. It was the claim of the complainant that, soon after the execution of the assignment, his business affairs became badly involved, and that in consequence thereof he was unable to meet his share of the payments as they fell due, and that defendant in consideration of the assignment of the contract agreed to carry the deal for him, as he had in the first instance carried it for the defendant, until either a sale was made of the premises or his financial position became easier, at which time defendant was to be reimbursed for all advancements made on his account. The defendant denies these claims and insists that the assignment was unconditional and absolute. He asserts that after the forfeiture the complainant executed and delivered to him the assignment, with the announcement that he was through with the deal, and that defendant must take care of himself the best he could; that since that time complainant has given no attention to the property, has paid nothing thereon, and has had no possession thereof, that he made no claim that he had any interest in the property for over two years after the assignment was given; and defendant charges that complainant would have made no claim when he did, save for the fact that the property has increased in value very rapidly since the fall of 1909.

The question is raised by complainant that the assignment is void for want of consideration. However much of merit there may be in this contention, the complainant is in no position to raise it, as he has brought the instrument into court and asked for a construction thereon beneficial to himself. To rely on the instrument as a mortgage, and at the same time condemn it as being void, is a position not within the rules of equitable consistency.

The remaining question, an important one, is a question of fact involving the veracity of the parties. The conflict is very sharp on the essential point as to whether the assignment was intended to be absolute or simply to operate as a security.

We think it would be without profit to the profession to discuss the testimony which makes for or against the veracity of these parties. We have given the record and briefs close attention and have considered the case, keeping in mind the friendly relations of the parties; the fact that none of their engagements was reduced to writing, the financial position of each; the reason given for making the assignment, and the attitude of each toward the property since the assignment was made; and, while we are still in doubt as to which party is right in his contention, we are of the opinion that the complainant has failed to discharge the burden of proof which rested upon him in making out his case. The proof should be clear and convincing before an instrument which, on its face, purports to be an absolute conveyance is declared to be a mere security. For complainant’s failure in this respect he must be denied relief.

The decree of the trial court will be affirmed. The defendant will recover his costs in this court.

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


author: Ostrander, J. Moore, C. J.

text:
    ANDERSON v. BRANSTROM.
    1. Public Officers —Salary —Assignment —Contracts —Partnership— Attorney and Client — Prosecuting Attorney — Public Policy — Public Service.
    In a suit to obtain a partnership accounting between two attorneys at law, a clause in the articles of partnership providing for division of the salary of defendant, earned as prosecuting attorney, is unenforceable, being contrary to the policy of the law.
    2. Same — Contracts—Public Policy.
    The test of the validity of any contract assigning future earnings of a public officer is not whether, if it is faithfully carried out, the public will be harmed, but whether its tendency will affect the public.
    3. Same.
    The effect of the void clause in the agreement is to invalidate the entire contract.
    Moore, C. J., dissenting.
    Appeal from Muskegon; Sullivan, J.
    Submitted June 12,1912.
    (Docket No. 96.)
    Decided December 17, 1912.

      Bill by John G. Anderson against William J. Branstrom for an accounting under articles of partnership, for an injunction and other relief. From a decree for complainant, defendant appeals.
    Reversed.

      John G. Anderson and Philip W. Kniskern (Stephen H. Clink, of counsel), for complainant.

      William J. Branstrom {Albert G. Day and A. B. Cogger, of counsel), for defendant.
   Ostrander, J.

The decree appealed from is in affirmance and enforcement of the unexecuted partnership contract, not its specific performance, it is true, but none the less for damages to be measured in part by the results of a performance of the contract according to its terms. The agreement was to divide equally between the partners the salary of the office of prosecuting attorney, to which office one of the parties, before or after the making of the agreement, succeeded. This salary is the quid pro quo paid by the public for the performance of public official duties, and the agreement, in substance and effect, assigns, before it is earned, this salary. The decree enforces the agreement to assign, not in terms, but actually.

The test of the validity of such an agreement is not, I think, whether, if it was faithfully carried out, the public would be harmed, but its validity must be measured by its tendency. It is undoubtedly true that the salary of public office is frequently brought into firm accounts and divided by the officer with partners. But assignments of unearned emoluments of public office are not favored, and courts have, pretty uniformly, refused to enforce them. The agreement in question amounts to such an assignment, and it would seem therefore that the courts should refuse to enforce the agreement, directly or indirectly. We said in Granger v. French, 152 Mich. 356 (116 N. W. 181, 125 Am. St. Rep. 416), that—

“ The rule of public policy makes all anticipatory assignments of salary by the relator void, and demands that he be paid his official salary notwithstanding such assignments.”

This rule was restated and affirmed in Dunkley v. City of Marquette, 157 Mich. 339 (122 N. W. 126, 17 Am. & Eng. Ann. Cas. 523). See, also, Bailey v. Quarry Co., 166 Mich. 321 (129 N. W. 17); Mechem on Public Offices and Officers, § 370; Benson v. Bawden, 149 Mich. 584 (113 N. W. 20, 13 L. R. A. [N. S.] 721).

In my opinion, the agreement of defendant to divide his official salary was void, and in consequence the entire agreement is invalid. The decree should be reversed, and the bill dismissed, with costs of both courts to defendant.

Steers, McAlvay, Brooke, Stone, and Bird, JJ., concurred.

Moore, C. J.

(dissenting). The parties to this litigation entered into the following agreement:

“This agreement made this 10th day of February, A. D. 1911, by and between John G. Anderson and William J. Branstrom of the village of Fremont, Mich., witnesseth:
“(1) The said parties hereby agree that they will become and be partners in business for the purpose and upon the terms herein stated.
“(2) The firm name of the partnership shall be Anderson & Branstrom.
“(3) The business to be carried on tobe general practice of law at the village of Fremont in Newaygo county, Mich., and at the city of Muskegon, in Muskegon county, Mich. And the said partnership shall continue for the period of five years, subject, however, to the conditions hereinafter mentioned.
“ (4) The said John G. Anderson shall conduct the business of said partnership at the said city of Muskegon, and the said William J. Branstrom shall conduct the said business of the said partnership at the village of Fremont until such time as a sufficient income shall be derived from the business at the city of Muskegon to warrant his removal to the last-mentioned place, after which time the office of said firm in the village of Fremont shall be closed and their said business in the city of Muskegon shall be conducted by them jointly. Each party shall give his entire time and attention to said business, and shall endeavor at all times to promote the interests of said partnership business. The said John G. Anderson shall assist in the trial of all cases in Newaygo county when it is deemed necessary and the said William J. Branstrom shall assist in the trial of all cases in Muskegon county and elsewhere when it is deemed necessary.
“ (5) The said parties shall each contribute their law libraries and furniture to the use of said business, and shall purchase a typewriter and such other necessary furnishings as may be deemed necessary at the joint expense of the parties.
“ (6) It is hereby understood and agreed between the parties that the said John G. Anderson is to have all the proceeds and profits from the business done at the Muskegon office, except such proceeds as may be derived from business coming from Newaygo county, which last-mentioned business shall be credited to the Fremont office, and shall pay all expense of conducting the business of said firm at Muskegon, except the expense attended upon such business as shall be credited to the Fremont office as aforesaid, such last-mentioned expense to be borne equally by the parties hereto. The proceeds from the business of the Fremont office, including the salary of the prosecuting attorney, shall be divided equally between the parties hereto, and the expense of said Fremont office shall be borne equally by the parties hereto. The said agreement as to division of proceeds shall be in effect for the period of two years unless otherwise mutually changed by the parties hereto.
“Each party is to keep an accurate account of the business done and the proceeds derived from the respective offices of the firm, and said books of account shall be the property of the firm and subject to the inspection of either party hereto at all times.
“John G. Anderson.
“William J. Branstrom.”

Pursuant to the agreement, they did for a time a partnership business. In October, 1911, the defendant declined to go on with the partnership. This bill was filed asking for an accounting and for an injunction restraining defendant from withdrawing from said partnership, with a general prayer for relief, and by amendment later to the bill of complaint was added a prayer for damages. The defendant demurred to the bill, but later it was agreed in open court that an answer should be put in, and it was put in, and a.hearing had, the complainant swearing several witnesses. Defendant offered no proofs. A decree was entered, the essential parts of which are as follows:

.“(1) That said partnership be and the same is hereby-dissolved.
“(2) That the complainant shall recover from the defendant one-half of the assets and profits of said copartnership.
“(8) That the complainant shall recover from the defendant his damages suffered and sustained by him by reason of the failure of the defendant to carry out and perform said written contract of copartnership.
“(4) That further proof shall be taken before the court as in a suit at law, for the purpose of ascertaining and determining what the assets and profits of said copartnership were and are, and for an accounting between the parties, and for the purpose of ascertaining and determining the amount of damages suffered and sustained by the complainant by reason of defendant having refused to carry out and perform the said written contract of copartnership.
“(5) That the parties hereto produce before this court, and leave with this court until otherwise directed, all books, papers, and documents and writings in their custody or under their control relating to the business of said parties at Fremont, and that the parties come into court to be examined under oath touching such assets, profits, and accounts, and that they have the right to produce and examine witnesses in relation thereto, and in relation to such damages as complainant has sustained by reason of the refusal of defendant to carry out and perform said written contract of copartnership. That this court retain jurisdiction cf this cause for the purposes set out and stated in this decree, and to settle all matters in controversy between the parties in relation to said partnership agreement. ”

From this decree defendant has appealed. The complainant did not appeal.

As to the claim made by the appellant that the case should be heard here on the demurrer, in view of what occurred in open court, we think that claim is not tenable. The first paragraph of the bill of complaint reads:

“ (1) That on or about the 1st day of September, A. D. 1909, he was engaged in the practice of his profession of an attorney at law at the village of Fremont, in the county of Newaygo, State of Michigan, and had practiced law at that place for several years previous to the last-mentioned date, and had a lucrative business established, and was at that time the prosecuting attorney of said Newaygo county; that on or about the 1st day of September, 1909, he entered into a contract of partnership with one William J. Branstrom, the defendant hereinafter named, and the said business of your orator was continued from such time until the present under the firm name and style of Anderson & Branstrom; that the said William J. Branstrom was a young man who had at that time just been admitted to the bar, and was without any practical experience whatever; and that during the summer of 1910 the parties hereto decided to engage in the practice of their profession in the city of Muskegon, in said county of Muskegon, and it was decided by the parties that the said John G. Anderson would not present himself as a candidate for re-election to the office of prosecuting attorney, but that the said William J. Branstrom should run for such office, instead of your orator, and your orator would go to the said city of Muskegon to reside and engage in the practice of law about the 1st day of January, 1911, or as soon thereafter as matters might be arranged so he could remove to said city of Muskegon, and in accordance with such arrangement the parties on or about the 10th day of February, 1911, entered into a contract, a copy of which is hereto attached, marked ‘Exhibit A,’ and is made a part of this bill of complaint; that, in accordance with the plans of the parties, the said John G. Anderson refrained from running for the office of prosecuting attorney for Newaygo county, and the said William J. Branstrom ran for said office, and was elected thereto; that at the time said Branstrom presented himself to the electors of Newaygo county for election to said office he was little known by the voters of said county, and your orator together with said defendant held public meetings at various places in said county for the purpose of procuring the election of said defendant to said office, and your orator spent a great deal of time and money in the matter of holding meetings at various places within said county for the purpose of procuring the election of said defendant to said office, your orator relying on the good intentions of said defendant to carry out his agreement in regard to continuing the business of said firm according to the agreement of the parties afterwards, and on the 10th day of February, 1911, reduced to writing and executed by the parties and exhibited herewith and as a part hereof.”

Exhibit A is the contract we have already quoted. After the complainant had testified that this paragraph was substantially true, it was offered in evidence by defendant, and was received in evidence by consent of the complainant. He testified that the precise terms of Exhibit A were not agreed to until after the defendant became prosecuting attorney. Based upon the testimony of complainant to which reference has been made and the averments in the bill of complaint which we have quoted, the defendant insists that complainant has no claim he can enforce, because the agreement of the parties is void as against public policy. He cites in support of his contention the case of Brooks v. Cooper, 50 N. J. Eq. 761 (26 Atl. 978, 21 L. R. A. 617, 35 Am. St. Rep. 793); 9 Cyc. pp. 495, 545; 32 Cyc. pp. 724, 725. An examination of these authorities will show that, while they discuss the doctrine of public policy, they are not controlling. None of them relate to a partnership relation between an attorney and a prosecuting attorney.

In the case of Brooks v. Cooper, supra, the contract was in contravention of a statute of the State. In the opinion the following language was used:

“It has been declared that public policy is a variable quality.; but the principles to be applied have always remained unchanged and unchangeable, and public policy is only variable in so far as the habits, capacities, and opportunities of the public have become more varied and complex. The relations of society become from time to time more complex, statutes defining and declaring public and private rights multiply rapidly, and public policy often changes as the laws change, and therefore new applications of old principles are required. Davies v. Davies, 36 Ch. Div. 365.
“ Whatever tends to injustice or oppression, restraint of liberty, restraint of legal right; whatever tends to the obstruction of justice, a violation of a statute, or the obstruction or perversion of the administration of the law; whatever tends to interfere with or control the administration of the law as to executive, legislative or other official action, whenever embodied in and made the subject of a contract, the contract is against public policy, and therefore void, and not susceptible of enforcement.”

If the contract made between the parties here was faithfully carried out, it is difficult to see how the public would be harmed. Prosecuting attorneys are so often members of a firm of lawyers that we might take judicial notice of the fact that such partnerships exist. The statutes of the State take notice of the fact, and provisions are made regulating the conduct of the members of the partnership. Sections 2567, 2568, 1 Comp. Laws (1 How. Stat. [2d Ed.] §§ 1162, 1163). Prom our knowledge of attorneys we can readily see that it may be a great advantage to the people of the State if the prosecuting attorney, who is usually a young man, has the benefit of being associated with a lawyer or lawyers of greater experience. We are not satisfied that the public is harmed by such a contract. In Solomon v. Kirkwood, 55 Mich. 256 (21 N. W. 336), the following language was used:

“ (1) We think the judge committed no error in his instructions respecting the dissolution of the partnership. The rule on this subject is thus stated in an early New York case. The right of a partner to dissolve, it is said, ‘is a right inseparably incident to every partnership. There can be no such thing as an indissoluble partnership. Every partner has an indefeasible right to dissolve the partnership as to all future contracts by publishing his own volition to that effect; and, after such publication, the other members of the firm have no capacity to bind him by any contract. Even where partners covenant with each other that the partnership shall continue seven years, either partner may dissolve it the next day by proclaiming his determination for that purpose; the only consequence being that he thereby subjects himself to a claim for damages for a breach of his covenant. The power given by one partner to another to make joint contracts for them both is not only a revocable power, but a man can do no act to divest himself of the capacity to revoke it. Skinner v. Dayton, 19 Johns. [N. Y.] 513, 538 [10 Am. Dec. 286]. To the same effect are Mason v. Connell, 1 Whart. [Pa.] 381, and Slemmer’s Appeal, 58 Pa. 155 [98 Am. Dec. 248]. There may be cases in which equity would enjoin a dissolution for a time, when the circumstances were such as to make it specially injurious; but no question of equitable restraint arises here. When one partner becomes dissatisfied, there is commonly no legal policy to be subserved by compelling a continuance of the relation, and the fact that a contract will be broken by the dissolution is no argument against the right to dissolve. Most contracts may be broken at pleasure, subject, however, to responsibility in damages. And that responsibility would exist in breaking a contract of partnership as in other cases.”

This language would seem to justify the decree that was made.

It should be affirmed, with costs, and the case remanded for further proceedings.


author: Brooke, J. Ostrander, J.

text:
    LUSCOMBE v. PETERSON.
    Deeds — Delivery—Escrow.
    Complainant entered into possession of his brother’s farm, as claimed by him, under an agreement to work the land during the brother’s lifetime and to have the proceeds thereof, paying the taxes and keeping up the place: complainant also averred that his brother some years later stated that he had fixed the title so that it would pass at his death to complainant. The brother denied any agreement to convey title. In reliance on such arrangement, complainant claimed to have built a house on the premises. In fact the brother had prepared a deed, which he left in escrow with a justice of the peace whereby complainant and his wife were to have a life estate after the grantor’s death, their son to have a life estate and the remainder to their grandson. Said grantor after-wards being advised that the deed was invalid, prepared a new instrument which he intended to take effect after his death, but delivered to complainant who handed it to the scrivener. It was not recorded. Held, that the transaction operated as a delivery to complainant, that title passed and the grantor oould not later recall the deed and execute a conveyance to third persons. Ostrander, Stone, and Bird, JJ., dissenting.
    Appeal from Montcalm; Davis, J.
    Submitted June 7, 1912.
    (Docket No. 47.)
    Decided December 17, 1912.
    Rehearing denied February 18, 1913.
    Bill by John B. Luscombe and others against Peter Peterson and another for the cancellation of a deed, and other relief. From a decree for complainants, defendants appeal.
    Affirmed.

      B. A. Hawley, for complainants.

      I. L. Hubbell and F. G. Miller, for defendants.

      As to effect of delivery of deed to grantee, subject to a future extrinsic condition, see note in 16 L. R. A. (N. S.) 941.
      Delivery of deed to third person to be delivered to grantee after grantor’s death upon performance of conditions by grantee, see note in 9 L. R. A. (N. S.) 317.

   Brooke, J.

I am of the opinion that the learned circuit judge reached a proper conclusion in this cause. After Lyman W. Luscombe learned from Wilson, who drew the original papers, that they were no good, he went back to Wilson with the complainant, John B. Luscombe, for the purpose of correcting the error he had been told was made.

He testified:

“Q. Before you made the change you told your brother John, and you and John went to Wilson together, didn’t you?
“A. Yes; he said it was no good.
“Q. You fixed it up so it was good ?
“A. I supposed so.
“Q. Bo your brother would have it after you passed away while he and his wife lived and then Robert should have it ?
“A. Yes, sir.
“Q. You fixed it up that way ?
“A. Yes, sir.”

Wilson, the scrivener, testified in part as follows:

“A. He wanted to deed it to his brother, John, and at his death and his wife’s death he wanted his son, Robert, John’s son Robert, to have it as long as he lived. Then he wanted Robert’s oldest son to have it. I can’t say as I remember any further conversation before drawing up the papers. Might by jogging my memory; a good many years ago. I believe he stated John lived on the place at that time. If he told me how long John had lived there, I don’t remember. I made out a deed at that time.
“Q. I wish you would describe what was in the instrument, as near as you can remember.
“A. The deed was filled out as Lyman Luscombe as party of the first part to John B. Luscombe as party of the second. The consideration, if I remember right, was $1. Then the description of the land was given, and then, after the description was given, it further stated that at the time of John’s death and his wife’s he wanted Robert Luscombe to have it, his son, John’s son; and at the time of his death, Robert’s death, he wanted Robert’s oldest son to have it. After I drew the document, I read it to him. It was drawn on a warranty deed headed ‘ Long Form,’ containing the usual covenants.
“Q. After the deed was drawn and read to him what • was done ?
“A. He told me he wanted to leave it with me.
“Q. Did he sign it?
“A. Yes, sir; he signed the deed.
"Q. Will you state as to whether it was witnessed or not?
“A. Yes; signed, witnessed, and acknowledged. I don’t remember who the witnesses were. There were two of them. I was a notary, and took the acknowledgment. Nothing further said or done about it any further than he told me to keep it. He wanted to leave the papers with me. * * *
“Q. When he came to your office in 1904, as you remember it, in relation to this property, do you know how he happened to come there at that time ?
“A. My attention was called on the street or in the People’s Savings Bank over here by Mr. Larabertson to an article in the Northwestern Review, stating that a deed made in that kind of manner there had to be a transfer made.
“Q. Delivery you mean ?
“A. Yes, sir; delivery of the deed. I had left my papers there at the bank, and Mr. Lambertson knew they were there, and I brought up that matter about him. I said there was no delivery made there. We talked the matter over. So I called Lyman’s attention to it.
“Q. In what way?
“A. I have forgot whether — I think I spoke to him. I told him I was informed there had to be a delivery made of the deed, and I think I wrote to John, his brother. I think I wrote to him, and says I, ‘ If that is the case, we had better fix these matters up.’ So he and John came into the store together, to the best of my remembrahee, and I told him that this deed that he drew up formerly looked to me as though it was entailing the property. I told him, if I was in his place, I would change it, and have only one name mentioned in it besides John’s. He told me I might draw up another one. So I drew up another deed of the same property, and with just Robert’s name mentioned besides John’s.
“Q. How was that deed worded, as near as you can remember it ?
“A. It was worded like the first one, copied from the first one, with the exception of Robert’s oldest son.
“Q. That was left out ?
“A. Yes, sir.
‘ ‘ Q. Now was that deed read over to Lyman Luscombe ?
“A. To the best of my remembrance it was.
“Q. When he came there on each occasion, as I understand you, or on the first occasion when he came there, he told you he wanted a deed made of his property ?
“A. Yes, sir,
“Q. To John ? And he stated he wanted it fixed so it would not have to be probated ?
“A. Yes, sir.
“Q. Did he say anything about being opposed to the probating of estates ?
“A. Well, he grumbled about the expense that was attached to it, and he said as a rule the lawyers got a good share of it. He wanted his fixed so there wouldn’t be any expense.
"Q. When he came there the second time, and this last deed was made, the deed you have just referred to was made, did he say anything at that time about fixing it so it wouldn’t have to be probated ?
“A. I don’t remember of it now. It was read over to him, signed, witnessed, and acknowledged. I think Alvin Lloyd and Henry Friedley witnessed it. I took the acknowledgment as a notary public at that time. That acknowledgment was certified on the instrument itself in the usual form in vogue in this State. It was a long form warranty deed.
“<Q. Was John Luscombe present on that occasion, the second time ?
“A. To the best of my remembrance he was sitting down by the stove. I couldn’t say positive. I think he was. The first time he wasn’t there.
“Q. The second time he was ?
“A. Yes, sir; as I remember it.
“Q. After the deed was drawn and fully executed except delivery, what was done with it ?
“A. The three of us went over to the People’s Ssfvings Bank and I gave Lyman the deed. He passed it to John, and John handed it to me and I took care of it.
“Q. Lyman Luscombe delivered if to John Luscombe ?
“A. Yes, sir.
”Q. And John handed it to you ?
“A. Yes, sir.
'‘Q. What were your instructions in relation to what was finally to be done with that deed ?
“A. The instructions were the same as the other, that I was to beep the deed and in case of his death I was to pass it to John.
Q. That is, hand it to John ?
“A. Yes, sir.
“Q. Now, at the time of the delivery, or the execution of this deed, or either of them, was there anything said in regard to recording the deeds by Lyman Luscombe ?
“A. He stated he didn’t want it recorded. The first deed I inserted the words: ‘ This deed not to be recorded until after my death.’
"Q. Was there anything said about it at the time of the second deed ?
“A. He didn’t want that recorded, said the same.
“Q. What was the language you inserted ?
''A. ‘This deed is not to be recorded until after the death of Lyman Luscombe.’ Lyman Luscombe came to me again in the winter of 1911. * * *
“Q. At the time of making the second deed was there anything said by Lyman in respect to his wanting to retain control of the deed or property during his lifetime ?
“A. No, sir.”

I think it is quite clear from the foregoing testimony that Lyman W. Luscombe made and intended to make delivery of the deed in question, and that by such delivery a present estate passed to the grantees named in the instrument which could not afterwards be defeated through any change of mind on the part of the grantor. Dyer v. Skadan, 128 Mich. 348 (87 N. W. 277, 92 Am. St. Rep. 461); Wilbur v. Grover, 140 Mich. 187 (103 N. W. 583); Blackford v. Olmstead, 140 Mich. 583 (104 N. W. 47); Wipfler v. Wipfler, 153 Mich. 18 (116 N. W. 544, 16 L. R. A. [N. S.] 941), and cases there cited and reviewed.

The judgment should be affirmed.

Moore, C. J., and Steer® and McAlvay, JJ., concurred with Brooke, J.

Ostrander, J.

(dissenting). The subject of this controversy is 80 acres of land in the county of Montcalm in this State which was at one time owned by Lyman Luscombe ; the parties complainant and the parties defendant each claiming title to the land through the said Lyman Luscombe. When the bill was filed, Lyman Luscombe was living and was made a party defendant. He has since died, but not until after his deposition had been taken, which appears in the record. The case involves some disputed facts, which the circuit judge determined favorably to the complainants, and held that a deed made by the said Lyman Luscombe, conveying the premises to the defendants, should be delivered up to be canceled, that the defendants should convey to the complainants, and that a certain instrument made by the said Lyman Luscombe in his lifetime, conveying the said premises to the complainants, should be restored, “ and that the said agreement between said Lyman Luscombe and John B. Luscombe be specifically performed.”

The case made by the bill is that Lyman Luscombe, an unmarried man, residing at some distance from the land in question, proposed to his brother, the complainant John B. Luscombe, in March, 1878, that he remove his family and belongings to the land in question, saying that, if he would do so and would work and operate the farm, improve it, and pay the taxes, he might have the entire proceeds and profits of the land; that pursuant to this request the said John B. Luscombe consented to and did remove to the premises, occupied and tilled the land, and remained in possession until the spring of 1894. At that time the dwelling house had become dilapidated, and the complainant John B. Luscombe consulted with Lyman, suggesting that it was advisable to erect a new dwelling house upon the premises, receiving the reply that he should go on and erect a dwelling house and continue to live in it and upon the premises, that he, the said Lyman, had fixed the title to the premises in such a way that John B. Luscombe would have the same after his death, and that he would fix the title in such a way that said John B. should have the same after his death, without exactly stating the terms of the arrangement, whatever it was. Said John B. assented, erected a large and more commodious dwelling, paid the entire expense thereof, and built other buildings and structures, and during all the time down to the filing of the bill of complaint, which was in March, 1911, continued to occupy, crop, and improve the premises. Said John B. Luscombe received word, so he charges, in March, 1905, or thereabouts, that a deed theretofore made by Lyman Luscombe, conveying the land to himself, was invalid and void because it had never been delivered. He informed Lyman Luscombe what he had heard, and thereafter, and on the next day, the complainant John B. and the said Lyman went to the city of Belding, and were informed that the former deed was invalid for the reason stated, when it was agreed between John B. and Lyman that a deed of the premises should be executed and delivered, conveying to John B. and his wife, Elizabeth, the said premises for the period of their natural lives with the remainder to complainant Robert Luscombe, a son of said John B. and Elizabeth; that such a deed was executed and then and there delivered to John B. Luscombe, who handed the same to the scrivener, “ to be by him safely kept during the life of said defendant Lyman Luscombe, and then to be by him placed on record in the office of the register of deeds of said county of Montcalm.” Later, and in February, 1911, complainant John B. was told by Peter Peterson, one of the defendants, to remove from the premises and surrender possession of the same to him, he claiming to be the owner thereof as grantee of Lyman Luscombe. Inquiry made by complainant John B. discovered the fact that the scrivener had delivered up the deed made in March, 1905, to the said Lyman Luscombe. An injunction is asked for, restraining Peter Peterson from entering upon the premises and disturbing complainants, restraining all defendants from concealing, disposing of, or destroying the deed of conveyance made in March, 1905, and a decree restoring said deed in case it had been lost or destroyed, and—

“That the said defendant be decreed specifically to perform said agreement so made by said Lyman Luscombe to and with your orator, John B. Luscombe, in the spring of A. D. 1895, as hereinbefore set forth, and to convey said premises to your orators and your oratrix in due form of law as agreed by and between said John B. Luscombe and said defendant Lyman Luscombe at the time last above stated, your oratrix and orators being ready and willing and hereby offering to perform said contract fully and specifically on their part, and to do or perform any other act or thing that may seem to said court to be equitable in the premises.”

Lyman Luscombe answered the bill, and denied the material allegations thereof, averring that John B. Luscombe came to him in March, 1878, or about that time, wanting to know what kind of an arrangement he could make to work the land in question, and that he told him that if he would work the farm in a good and proper manner, improve it, keep it fenced, pay the taxes, do the road work, he could have what he made thereon for his labor; that thereupon John B. moved upon the land, raised large and valuable crops, and made a good deal of money, enough to keep his family, and in addition, to purchase an adjoining farm; that he cut down and sold many hundred dollars’ worth of valuable timber, taking the entire proceeds, had been able to travel extensively, but for several years had not kept up the fences, and had allowed the same to become dilapidated. Further answering, he says that John B. came to him “a few years ago ” and requested permission to build the house now standing on the premises, that he gave him permission to build the house, but denies that it cost the amount stated in the bill, and says it did not cost to exceed $1,000, and in this connection avers that the receipts of the farm at a fair rental value prior to the time when the house was erected would exceed the value of all improvements placed thereon, before or after that time. Concerning the execution of the conveyance, he denies that he ever executed any at a time when complainant John B. was present, and avers that John B. was not informed by himself, and did not know of his intention to make any conveyance or conveyances of the land in question; that because he was becoming old, being 79 years and more of age, he desired to make a testamentary disposition of his property and considered the matter for a time, when he went to a justice of the peace (the same one referred to in the hill of complaint), and consulted him with respect to making a will or disposition of his property to take effect only after his death; that the scrivener prepared a paper, but whether it was a will or contract or deed he does not know, except that he never understood that he was making a deed and never understood that the paper he executed was a deed, and had no knowledge at the time of filing his answer, except as he has since been advised, that the paper was a deed; says that, if it was a deed which conveyed any title whatever, it was contrary to the understanding and expectation and wish of himself; that whatever paper was made he left with the scrivener with the understanding that he could change the same or destroy it if he should choose to do so at any time thereafter; that whatever paper he executed provided that upon his death the premises should go to John B. Luscombe and at his death to his son Robert, but that he had always insisted upon retaining full control of the property during his lifetime, with the right to make other or different disposition of it. In this connection he avers that he was growing feeble, and considered that he might require the property for his own living and support.

He further avers that the scrivener did state to him later on that the paper which he had previously made was void, and told him of the decision of some court to that effect; that some time thereafter he met complainant John B. in Belding, and together they went to the place of business of the justice of the peace, who again informed him that it would be necessary to make other or different papers, and in a talk with said justice was told by him that he had fixed it up, but defendant did not know, and did not know at the time of filing his answer, whether he made a new paper or fixed over the old one. He avers that, whatever the justice of the peace did, he, Lyman, never understood he was making, and never intended to make, any paper which would be other than a testamentary disposition of his property and operate as a will. He says he was requested by the said justice of the peace and by complainant Robert Luscombe to make a deed of the premises, which he refused to do. He admits the occupancy of the premises by the complainant, but says that they are there as his tenants, subject to be removed at any time. He admits that he went to the justice of the peace and demanded of him the papers made by him, and says that the justice immediately acceded to his request, and advised him that he had a perfect right to destroy them, and, in fact, did advise him to destroy them, and he avers that he at once tore the papers up and destroyed them. He, further answering, avers that he is old and infirm, unable to hear without the aid of an ear trumpet, with poor eyesight, no longer able to care for himself; that he has been living for some years with one Lester Carpenter, who married a niece, and had become indebted to the said Carpenter for medicine and board and care, and had to have money to discharge his obligation; and that in February, 1911, after destroying the papers originally made by him, he sold the property to the defendants Peter and Lulu Peterson, Lulu being his niece and wife of Peter, they paying him $1,000, which with his love and affection for his said niece was the consideration for the conveyance. The $1,000 he turned over to the Carpenters at whose home he was living at the time of drawing his answer, and who were providing for him. Defendants Peter and Lulu in their answer assert that they are good-faith purchasers of the premises, for which they paid $1,000, and that they had no notice or knowledge of any rights on the part of John B. and Elizabeth Luscombe other than that they were tenants of Lyman Luscombe, subject to removal at any time when he, the said Lyman, desired. They ask for affirmative relief.

An analysis of the testimony has led to conclusions which may be stated without setting out the testimony at large. There was never any agreement between John B. and Lyman Luscombe by the terms of which Lyman agreed to convey the land, or any interest in it, to John B. Nothing was ever done by John B. with respect to the land in reliance upon, or in consideration of, any promise or undertaking of Lyman to convey the land to him or to any one else. Entry was made and possession retained by John B. by permission of Lyman, and with the understanding that John B. should have the use of the land. But no term was agreed upon and no interest in the land created by any agreement of the parties. John B. Luscombe entered upon the land in 1878. In 1890 or 1892, according to his testimony, he inquired of Lyman what he would take for the place. He says that Lyman replied:

“ I intend it to be yours any way. I am going to fix it that way so it will never have to be probated.”

In this there is no indication that John B. claimed any interest in the land, or that Lyman intended any present gift to him. In 1894 the house erected by John B. upon the land was in such condition that he desired to build a new one. He consulted with Lyman, who said, according to the testimony of John B., “ Go on and build it,” and said he had fixed it or would fix it so the land “ would be mine.” John B. was asked by his counsel, “Would you have gone on and built the house unless he had given you that assurance?” and was answered, “ I don’t think I should.” The house was built, but we find no evidence of an agreement to convey the land which the court could enforce. The house was built to accommodate John B. and his family. No obligation to build it was asserted or was implied. Looking again to the testimony of John B. Luscombe, we find that in 1898 Lyman told him that he had fixed the papers so it would be all right and would not have to be probated. “ He had fixed the paper out for me, it wouldn’t have to be probated.” It was not until 1904 or 1905 that John B. was informed how Lyman had “fixed it.” Even then he gained his information, not from Lyman, but from the officious justice of the peace and scrivener who had prepared the instrument. John B. never saw the instrument, and knew and knows nothing of its terms, except from hearsay. Clearly there was no oral agreement to convey the land to him, and no gift was talked about except one to take effect after the death of Lyman.

As to the contents of the two instruments which were executed by Lyman, we have his testimony and that of the scrivener. The papers were destroyed. Lyman testified that he went to a justice of the peace, who had made out his pension vouchers, and told him what sort of instrument he desired drawn. This was in 1894. His instructions were to prepare an instrument which would give the place to John B. after he, Lyman, was done with it, for the life of John B. and his wife, remainder to Robert, son of John B. The scrivener testified that the old gentleman wanted the instrument drawn in such manner that it would convey a life estate to John B. and his wife, a life estate to Robert, son of John B., and remainder to Robert’s eldest son. He testifies that he so prepared the instrument. He further testifies that Lyman wished to retain the property, so that, if necessary, he could use it for his own support; that he put nothing into the instrument to carry out this wish, but did write therein that it was not to be recorded until after the death of Lyman. The instrument was left with the scrivener. No one pretends that it was ever delivered to John B. The scrivener testifies that he did not believe it was a valid instrument, but, so long as it seemed to satisfy Lyman, he said nothing about it, understanding himself that he was bound to deliver it to Lyman upon his request. The scrivener had the custody of this instrument until late in 1904 or early in 1905. Meantime he continued to make out the quarterly pension vouchers for Lyman. Neither referred to the instrument. In 1904 or 1905 he informed Lyman that he thought the instrument was not valid. He took it upon himself also to inform John B. something about the instrument and the necessity for a new one. It is somewhat difficult to gather from the testimony of the scrivener the reason for this counsel. Probably it was because he had read something from which he conceived that manual delivery of the instrument was necessary to give it validity, although he testifies that he thought the deed was invalid because creating a perpetuity.

Whatever the reason, Lyman and John B. appeared in the scrivener’s store and office, and a new instrument was prepared which purported to create a life estate in the land for John B. and his wife, with remainder to Robert, son of John B. The instrument having been executed, the parties went through the form, according to Lyman, of having Lyman pass it to John B., who passed it back to Lyman, who delivered it to the scrivener, telling him to keep it or them “until I was done with them.” The scrivener testified that Lyman passed the paper to John B., who handed it to the scrivener. There is much in the testimony of the scrivener tending to prove that Lyman intended, and that the scrivener knew he intended, to retain title to the property so long as he lived, and that he made these instruments, instead of making a will or wills, to avoid the expense and uncertainty of probating his estate. Clear it is that Lyman did not and could not dictate or formulate the method to be pursued or the language to be employed to accomplish his purpose, in which respects he relied upon the scrivener. It appears, too, that at the request of John B. and Robert the scrivener afterwards asked Lyman to make a deed, stating that Robert had consulted an attorney who told him that, in case Lyman died, the persons with whom he was living could present claims against his estate which would have to be paid out of this property if his personal estate was insufficient for that purpose. Lyman declined to make any other papers. Later, in 1911, the scrivener, at Lyman’s request, made a deed of the property to defendants Peterson, and delivered to Lyman the two instruments formerly executed, and those instruments were destroyed. The scrivener testified that he understood that Lyman had the right to demand; receive, and destroy those instruments at any time. The Petersons gave Lyman a valuable consideration for the land and deed.

Upon the whole record — direct reference has been made to but a small portion of the testimony — we feel compelled to disagree with the learned trial judge, and to find that complainants have not made out by a preponderance of evidence that Lyman Luscombe ever intended to part with his title to the land, or that in passing the deed to John B. he understood or believed that by so doing he was making effective a present transfer and conveyance of property. My Brother Brooke has set out considerable of the testimony and reached the conclusion that Lyman Luscombe, when the last deed to complainants was made and the performance of a delivery gone through with, intended to make a delivery of the deed, and that by the delivery a present estate passed to the grantees. No opinion should be formed — I do not say that his has been so formed — from reading portions of the record. It must all of it be read. When it is read, it will be seen that the old gentleman had not changed his original purpose to keep and control the land so long as he lived. Otherwise, he would have executed and delivered his deed. What he did do was by direction of his scrivener, to whom he had once fully stated his purpose. Everything tends to prove that his original purpose had not changed. His original purpose was understood by the scrivener. But he had been advised by the scrivener that the deed first made was ineffectual to accomplish his purpose, which was to retain the title to and control over the land so long as he lived. He was seeking, by making the second conveyance, to make effectual a distinct purpose, namely, to retain control of his property and title thereto while he lived, and to secure a particular devolution of his estate after his death, without expense. To accomplish this, he did what the scrivener told him it was necessary to do. The understanding of the scrivener of the legal effect of the instruments he prepared is not of importance, except as it explains the conduct, declarations, and intentions of Lyman Luscombe. It negatives the idea that Lyman Luscombe made a delivery of the deed for the purpose of immediately passing title. It clearly indicates, as does the later refusal of Lyman to execute another conveyance, that Lyman Luscombe did not intend to deliver the deed.

It is not a case in which, after delivery of a deed, the grantor, having changed his mind, seeks to defeat an estate he has created. Nor do the facts as stated herein bring the case within the rule of Dawson v. Hall, 2 Mich. 390; Dyer v. Skadan, 128 Mich. 348 (87 N. W. 277, 92 Am. St. Rep. 461); and Wipfler v. Wipfler, 153 Mich. 18 (116 N. W. 544, 16 L. R. A. [N. S.] 941). There are cases, and those just cited are such, where the act of making delivery of a deed by the grantor to the grantee is held to conclusively establish the fact of intentional, unconditional, delivery. And the rule of these cases ought to be applied whenever it appears that a grantor intended to deliver and a grantee intended to accept the instrument as a conveyance, without further act on the part of the grantor. But, as has been pointed out, in the case at bar, all of the parties witnessing the delivery understood that no such unequivocal acts of delivery and acceptance were taking place. Precisely the contrary. Suppose that one ignorant of the law was instructed by one supposed by him to have proper knowledge, that to carry out his clearly expressed and understood purpose he must do an act which, in law, if intentionally done, completely frustrated such purpose; would it be held that a court of equity could not give relief from the apparent effects of the fraud thus committed ? The case at bar is the case supposed, although the scrivener was innocent of any intention to defraud. Unmistakably, the testimony points to a desire and intention on the part of Lyman to retain title and to provide by some means other than a last testimonial for the devolution of the estate after his death. Unmistakably the act of delivering the deed was done under the belief that it was necessary to the accomplishment of his purpose, and did not negative and frustrate that purpose, and all parties so understood it.

Holding this view, we determine that the decree of the court below should be reversed,' and a decree entered in this court dismissing the bill of complaint, with costs of both courts to appellants. Appellants should have a decree for /possession of the premises, and for an accounting as prayed for in the cross-bill.

Stone and Bird, JJ., concurred with Ostrander, J.


author: McAlvay, J.

text:
    BERRY v. HARBOR SPRINGS RAILWAY CO.
    1. Railroads — Negligence—Gross Negligence.
    Where defendant’s engineer saw plaintiff some distance ahead walking along a path close beside defendant’s tracks, and proceeded slowly, with his engine under control, and both hands engaged in operating it and in ringing the bell, so he could not blow the whistle, and where plaintiff, whose attention was engaged by another passing train, failed to hear the bell ring, and stepping upon the track or dangerously near it, about ten feet in front of the locomotive, was struck before the engineer could stop, and it appeared that the engine ran only a few feet after striking plaintiff, who was knocked down but not crushed, the engineer could not be held guilty of gross negligence.
    2. Same — Contributory Negligence.
    Plaintiff was guilty of contributory negligence as matter of law.
    Error to Emmet; Shepherd, J.
    Submitted January 11, 1912.
    (Docket No. 49.)
    Decided December 17, 1912.
    Case by Helen Berry against the Harbor Springs Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      Halstead & Halstead, for appellant.

      W. 8. Mesick and Gf. E. & M. A. Nichols, for appellee.
   McAlvay, J.

This is an action on the case brought by plaintiff against defendant to recover damages for personal injuries to plaintiff, claimed to have been caused by the negligence of defendant’s servants. A verdict was rendered in the case in favor of plaintiff. From a judgment entered upon such verdict defendant has brought the case before this court upon a writ of error, asking a reversal on account of errors, which are assigned. As far as may be necessary in the consideration of this ease to state any facts, the court will accept the statement as made in the brief of the appellant, for the reason that the appellee has ignored Rule No. 40 (68 N. W. viii) of this court, and not pointed out in a single instance wherein if is claimed the appellant’s statement is incorrect, and has made a new statement of great length.

The injury to the plaintiff occurred in the village of Harbor Springs, Emmet county, where defendant owns and operates a narrow-gauge logging road, which crosses the tracks of the Grand Rapids & Indiana and Bay street at right angles. On defendant’s main track two switches are placed to connect with side tracks, one north of the Grand Rapids & Indiana tracks and one south of those tracks. These switches are operated from a small target house. The north switch is about 120 feet north of this operating station.

On the day of the injury, plaintiff approached defendant’s main tracks from the east, and saw an engine pushing a car of coal ahead of it approaching from the south, the engine heading north. Plaintiff stepped on the east side of the defendant’s track, and waited for this engine and car to pass going north. . While waiting she saw a naan, supposed by her to be in the employ of the defendant, in this target house. She knew what the target house was used for, and understood he was there for the purpose of turning the switch on defendant’s track. She knew that the north switch could be operated from there, and knew of no other switch to the north that could be so operated. She was familiar with the location of the main line and the switch tracks of defendant’s road, having often walked on both. After the engine and car of coal had passed plaintiff, she continued on west in the path and on the north side of what is known as Bay street. Defendant’s switch track, from the north switch stand, above mentioned, curves in a southwesterly direction, and as it approaches Bay street curving to the westward it straightens out and runs parallel with such street. This curve, which starts at defendant’s north switch stand, ends where this switch track meets the path at Bay street, and is about 175 feet in length. This engine and car continued on its course up the track far enough to permit the switch to be thrown by the man in the operating station, and let them in on this curved track. This he did, and then went across to the switch track to meet the engine and car, upon which he ácted as a brakeman, to cut the car off for the lower switch. When the switch was thrown, the engine backed in on the switch track, pulling the car of coal. This was a small, light engine of low gear, and adapted to climbing grades. The track was slightly downgrade, and, as soon as it got onto the switch track with a car of coal, the steam was cut off, and it coasted slowly down the hill, with the tender first, at a speed estimated as 2f to 4 miles per hour. It was intended to place the car of coal further down by cutting it off, and making what is known asa “ flying switch.” The grade on the switch track as it descends from the north switch stand is 2.3 per cent., for a short distance, then two per cent., then on a level at a point where this track comes in north of Bay street, and continues along parallel with it to the place where the injury occurred.

Plaintiff, continuing on the path as described, came to and passed the point where this switch track approaches Bay street, and proceeded along said path to the place where she was injured, which she designates as exactly opposite the south switch. As she was coming towards the point where the switch track parallels Bay street, some piles of railroad ties obstructed her view of this switch track higher up. She could see some distance up the track where it straightens out, and says that at that point she looked and saw nothing approaching. She continued along her way to the place where the path comes to the side of the switch track on Bay street, and proceeded along such path without any further observation. The engineer on the approaching engine saw plaintiff when she came into view at the end of the pile of railroad ties. The brakeman on the engine also saw her at the same time. The engineer was standing up in his cab watching her from that time until the accident, with nothing to obstruct his view, with one hand on the air brake lever, and ringing the bell continuously with the other hand; the air pump making a noise which could be heard 35 or 40 rods. She walked the whole distance with her back to the engine approaching her from behind along, or near, the path on the side of the track toward Bay street, which is open and level for the whole distance it is paralleled by the track, without turning or looking back. The record shows that she did not walk in the path all of the time, but zigzagged as she went along toward the street and toward the railroad track. The engineer had the engine under control, and at one time applied the brakes because he thought plaintiff was getting too near the track. She proceeded in this manner for a distance of about 10'0 feet from the place where, as stated, she looked up the track as she approached it, when, as is claimed by the men on the engine, she suddenly stepped between the rails, the engine being then ten feet from her, and, although the engineer applied his air brakes, reversed his engine and pulled the throttle wide open, and the engine was stopped within that distance, she was struck, and her ankle was injured. No part of her person went under the tender, or was crushed by it. Her testimony is that she was walking in the path, and did not step over the rail onto the track. She gives as her reason why she did not walk farther away from the track that the street was dusty. Plaintiff claimed that her attention was distracted by a train which passed, going west, on the Grand Rapids & Indiana tracks, about. 80 feet away from defendant’s road, before she was struck. All the other witnesses testify that no such train passed until five minutes or more after she was hurt. The plaintiff testified that she was familiar with all these surroundings, and knew that trains were operated on these tracks; that she did not look behind her for the whole distance after she made the first observation until she was injured. The record shows that this was for a distance of about 100 feet, the greater part of which was traversed by her parallel with the railroad track. It appears without dispute from the record and the exhibits in the case that this path parallel with the railroad track was a well-defined and beaten path, at a sufficient distance from the tracks to be without danger of injury from a passing engine, and also that on this side south from the track the way for the entire distance was smooth and unobstructed for a width sufficient for teams to pass each other.

The material errors assigned and relied upon by defendant are that the court erred in refusing to direct a verdict for the defendant, in allowing the amendments of the declaration whereby the charge against defendant was changed from one of “ ordinary negligence” to “gross negligence,” upon the charge of the court upon the question of negligence and the measure of damages, the refusal to charge upon these questions as requested by defendant, and the refusal of the court to grant a new trial. The amendments rsferred to were allowed after all the evidence in the case had been introduced, changing the averments in the declaration from “ ordinary negligence” to “gross negligence,” notwithstanding the objection of defendant that such amendments introduced a new and distinct cause of action. It may be said that the offer and allowance of these amendments was vital and important, and at this stage of the trial was, to say the least, unusual and of the most serious import to the defendant. Upon this record, however, we do not need to determine the proposition urged by defendant, that by the amendments an entirely new cause of action was presented, and therefore under our practice they were improperly allowed.

The undisputed facts in the case show that the engineer was operating this small geared engine with great care, from the time the plaintiff approached the railroad down to the time when the injury occurred; that the engine was practically moved no faster than plaintiff walked; that she was a normal person, in possession of all her senses, traveling over a road which she was well acquainted with and walking in this path, which ran far enough from the rails for perfect safety; that the bell on the engine was ringing continuously, the brakes were always under control, and the air pump working with a great noise. The engineer was justified in acting upon the assumption that plaintiff would not put herself in a place of danger, and had no reason to believe that plaintiff would walk so near to the rails as to be injured, much less step over the rail. The fact that the engine was stopped within ten feet after she was discovered to be in a place of danger is evidence of itself that it was under control. Both of the engineer’s hands were engaged in doing those things which were necessary to warn plaintiff of the approach of the engine, and at the same time keep absolute control of the machine. Complaint is made that he did not blow the whistle. Not being provided with more than the ordinary number of hands, which were occupied as we have already stated, the blowing of the whistle was impossible.

The record shows that after it was discovered that plaintiff had got into a place of danger the engineer did everything that could have been done to prevent her injury, and was not guilty of reckless, wanton, and wilful conduct. This court has recently defined what is “gross negligence,” under somewhat similar circumstances to those of this case. Mr. Justice Ostrander, speaking for the court, said:

“The term ‘gross negligence’ has been used in eases decided by this court, and has a definite meaning when referred to as authorizing a recovery for negligent injury, notwithstanding the contributory negligence of the plaintiff. It means the intentional failure to perform a manifest duty, in reckless disregard of the consequences as affecting the life or property of another. It also implies a thoughtless disregard of consequences, without the exercise of any effort to avoid them. Schindler v. Railway Co., 87 Mich. 400, 411 (49 N. W. 670); Denman v. Johnston, 85 Mich. 387, 396 (48 N. W. 565). In Labarge v. Railroad Co., 134 Mich. 139 (95 N. W. 1073), the cases are reviewed and the doctrine of ‘gross negligence,’ as stated and defined in Richter v. Harper, 95 Mich. 221, 225 (54 N. W. 768), is approved.” Knickerbocker v. Railway Co., 167 Mich. 596, 602 (133 N. W. 504, 507).

A careful examination of all the testimony in the record satisfies us that it does not disclose any evidence of “ gross negligence” upon the part of defendant, and the court was therefore in error in its charge to the jury that there was evidence in the case, which, if believed by them, would warrant a verdict against defendant upon the ground of “gross negligence.”

The defendant insisted upon the trial that the evidence disclosed contributory negligence on the part of the plaintiff, and requested the court to instruct a verdict in its behalf for that reason, which request was refused. It will not be necessary to repeat what already appears from the statement of facts we have given, the conduct of this plaintiff, as she went along this path. The presence of the railroad track was of itself a warning of danger, and required the exercise on the part of plaintiff of all her senses necessary to discover whatever danger might be imminent from an approaching train. The testimony of all the eyewitnesses and plaintiff’s testimony is in accord, and shows that she proceeded all this distance without looking behind her. It is also undisputed, as shown by the record, including her testimony, that there was ample space along the track for her to walk with perfect safety. Of her own accord, without any regard to her safety, it appears that she put herself either over the rail or so close to the rail that she was struck by the end of the tender coming from behind. If, in fact, a train on the Grand Rapids & Indiana track passed shortly before the injury, upon which there is a dispute in the testimony, this would be no excuse for the utter disregard of her own safety. Our conclusion is that from the evidence in the case the plaintiff was guilty of contributory negligence as a matter of law, and on that ground, as requested by defendant, the court should have so charged the jury.

Other errors assigned, in view of our conclusion, do not require discussion. The judgment of the circuit court is reversed, and, it being admitted in the brief for plaintiff that the testimony offered at the trial could not have been and cannot now be otherwise or different, no new trial is granted.

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


text:
    PUDAS v. MATTOLA.
    Account Stated — Unliquidated Damages — Action.
    An action on an account stated will not lie upon defendant’s promise to pay a stipulated sum in settlement of damages caused by his breaking a plate glass window belonging to plaintiff.

    Error to Houghton; Streeter, J.
    Submitted April 11, 1912.
    (Docket No. 149.)
    Decided December 17, 1912.
    Assumpsit by Matt Pudas against Andrew Mattola on an account stated. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Hanchette & Lawton, for appellant.
    . Burritt & Burritt, for appellee.

       On the question what constitutes an account stated, see note in 27 L. R. A. 811.

   McAlvay, J.

Plaintiff recovered a judgment in the circuit court for Houghton county against defendant in an action of assumpsit upon an account stated, from which defendant has appealed by writ of error.

The following are the facts in the case: The record shows that the plate glass front of plaintiff’s place of business had been broken. Plaintiff claimed that defendant was one of the parties who wrongfully committed this damage. Complaint was made before a justice of the peace against defendant (as the justice testifies) for malicious destruction of property. The defendant was arTested and taken to the justice’s office, where some negotiations were had, which plaintiff claims resulted in an agreement on the part of defendant to pay to him $16 as his share of the damages for the breaking of plaintiff’s window. There is a dispute as to whether such an agree-merit ever was made. Plaintiff later brought suit, declaring and relying upon this claimed agreement made in settlement of this wrong charged against defendant, as an account stated in assumpsit, and has recovered a judgment in this suit, which is founded entirely upon the theory that an account stated was had between these parties. This suit was instituted in the court of the justice before whom defendant was brought by the officer, as above mentioned. The case was tried in that court before a jury, and a judgment was rendered against plaintiff. Upon appeal to the circuit court the case resulted as above stated. The trial judge accepted the theory of the plaintiff that the only question to be determined was whether in fact an account had been stated as claimed by plaintiff.

Defendant has assigned errors in the case, of which, as we view it, but the one need be considered which charges the court was in error in holding that the facts in this case show that this transaction could be considered in law as a foundation of an action for an account stated in assumpsit. The statement by the appellant of his position is as follows :

“The court erred in holding that an unliquidated claim for tort is provable as an account stated, upon the theory that the defendant had promised to settle the tort at a stipulated sum.”

Definitions of an “ account stated” have been given by text-writers and authorities of which the following may be accepted as a general statement:

“ In general terms, where an account is rendered by one person to another, showing a balance due from the one to the other, and the indebtedness thus expressed is acknowledged to be due by the person against whom the balance appears, or where parties having previous transactions agree upon a definite balance as due from one to the other, this will constitute an account stated.” 1 Cyc. p. 364.

This doctrine was founded originally upon the practice among merchants. This definition states the doctrine generally as it was originally accepted. It has been somewhat modified, but the rule has been retained that in order to constitute an account stated there must be some prior transaction, which may include but a single item where there are no mutual dealings, and when the transaction has no relation to trade. 1 Cyc. p. 865. This suit upon an account stated was brought to recover upon a claimed settlement between the parties of an unliquidated claim for damages arising out of a tort.

The supreme court of Oregon, in an excellent opinion written by Mr. Justice Wolverton, in a case where action was brought upon an account stated to recover for an unliquidated claim of damages for breach of a contract, in discussing this question, said:

“Suppose the plaintiff had sent to defendants a statement in writing of his claim against them for $300 for building this fence, and the defendants had retained it an unreasonable or any length of time without objection, would a promise to pay such a sum arise by implication ? Undoubtedly not. If such were the rule, it would be an easy matter for any claimant to convert an action for unliquidated damages, whether arising from contract or tort, into an action upon a money demand, wherein it would not be permissible to inquire into the original cause of action. Every person against whom such a claim is made would be compelled to be constantly' on the alert, and make due and timely objection in order to prevent an undue advantage being taken of him. The doctrine of an account stated cannot be carried to this extent. A single item, not of a debt due and owing, but of an unliquidated claim of damages for the breach of a parol or simple contract, cannot form the basis of an account stated.” Vanbebber v. Plunkett, 26 Or. 562 (38 Pac. 707, 27 L. R. A. 811), and notes.

The only distinction between the Oregon case, above cited, and the instant case is that the former grew out of a settlement of unliquidated damages arising from the breach of a contract, and the latter from a claimed settlement of unliquidated damages arising from a tort.

The basis of an account stated must always be a balance or amount due upon a subsisting indebtedness. This was the principle upon which the action upon an account stated was founded. Therefore a settlement of an unliquidated claim for damages arising either from the breach of a contract or from a tort cannot become the subject of an account stated.

Our attention is not called to a single authority which holds to the contrary, and in a thorough search we have been unable to find one. It was unanimously held by the Court of Exchequer, in an opinion;'written by Lord Abinger, C. B., as follows:

“ Then as to the account stated: I have often observed that there is a good deal of confusion in the books on questions of accounts stated — not the older books, but the modern ones; they lay down this, that, where there is a promise to pay a sum of moneyas due from A. to B., it is evidence of an account stated; which means this, that the simple promise, if it stands unexplained and uncontradicted, is evidence to go to a jury that the plaintiff claims that sum to be due, and that there are matters of account between the parties; it does not go further than that; and it is only when you come to look at the facts on which the promise was made that you are enabled to see whether it is an account stated or not. Here there was nothing due from the defendant to the plaintiffs at all, the only thing in respect of which they had a claim upon him was upon his promise, and they might have had an action against him for not performing that promise, because no doubt it was made upon a good and sufficient consideration ; but it was not in the nature of any debt due from one to the other at all.” Lubbock v. Tribe, 3 M. & W. 606-613.

The same doctrine was announced earlier in Tucker v. Barrow, 7 B. & C. 623 (14 E. C. L. R.)

In our opinion, upon this record, it may be stated, as a matter of law, that the claimed settlement relied upon by plaintiff was not an account stated, and no recovery can be had in this action. This disposes of the case, and the other errors assigned, although apparently meritorious, require no consideration.

The judgment is reversed, and a judgment will be entered in this court in favor of defendant and appellant, with costs of both courts to be taxed.

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