author: Moore, O. J.

text:
    BEARINGER v. BEARINGER.
    1. Divoroe — Extreme Cruelty — Improper Conduct — Husband and Wipe.
    In a suit for divorce brought by the wife as complainant, the defendant was rightly granted a divorce on the ground of extreme cruelty, where complainant was shown to have been repeatedly guilty of undue intimacy and improper conduct, although not of adultery, with defendant’s hired man.
    2. Same — Alimony—Suppicienoy.
    Six hundred dollars was properly awarded to complainant as alimony out of the sum of $5,000 received by defendant from the estate of a deceased brother, complainant having aided in no way in procuring that amount.
    Appeal from Lapeer; Smith, J.
    Submitted June 4, 1912.
    (Docket No. 9.)
    Decided July 10, 1912.
    Bill by Alma Bearinger against William Bearinger for divorce. From a decree for defendant, on his answer in the nature of a cross-bill, awarding alimony to complainant, both parties appeal.
    Affirmed.

      Herbert W. Smith, for complainant.

      Elmer Shumar, for defendant.
   Moore, O. J.

The parties to this suit were married in October, 1885, and lived together from that time until about the time of filing this bill of complaint, in March, 1911, with the exception of a short time in 1909, when complainant filed a bill for divorce against the defendant. This cause was afterwards settled, and the parties resumed marriage relations. Two children were the result of the marriage, a daughter 24 and a son 17 years of age at the time of commencing this suit. The bill of complaint charges the defendant with habitual drunkenness and extreme cruelty, and prays a decree for separate maintenance. The defendant’s answer, in the nature of a cross-bill, denies the allegations of habitual drunkenness and extreme cruelty, and charges the complainant with extreme cruelty, specifying acts of improper conduct with one Grader, and other acts of misconduct. Complainant filed an answer to defendant’s cross-bill, denying the charges of extreme cruelty. The cause was heard in open court. After hearing the testimony, the circuit judge dismissed complainant’s bill, and granted a decree of divorce to the defendant, awarding to the complainant $600 permanent alimony. From this decree both parties appeal.

The most serious controversy grows out of the question of alimony, though complainant insists defendant failed to show a case for a decree of divorce. The trouble between the parties seems to have arisen with the advent of a hired man upon the farm occupied by the parties, whose name was Grader. While there may have been nothing criminal in the relations between this man and the complainant, their relations, to say the least, were very indefensible, and were well calculated to do away with the happiness of the defendant. Without attempting to narrate in detail the testimony, we think it justifies a decree of divorce on the part of the defendant. See Briggs v. Briggs, 20 Mich. 34; Vollrath v. Vollrath, 163 Mich. 301 (128 N. W. 190).

We now come to the question of alimony. It is the claim of the complainant that she was a good worker and helped to accumulate the property owned by her husband, and that the amount of alimony should be- substantially larger. On the part of the defendant it is contended (we quote from the brief of counsel):

“Fourth. That the charges contained in defendant’s cross-bill, and the proofs in support thereof, are of such a nature that the complainant is entitled to no alimony whatever.”

An examination of the record does not satisfy us that either of these contentions is true. We have already referred sufficiently to the relations of the complainant with Mr. Grader. The record shows that the farm owned by the defendant came to him from his father and mother, and that in March, 1906, he was badly in debt. At about this date he received from the estate of his brother the sum of $5,000, which was used in paying off the indebtedness of defendant and improving the farm. If the amount of property received from the brother was deducted from the assets of defendant, there would be very little left. Of course complainant-had nothing to do with the accumulation of the $5,000 which came from the brother to her husband. We think the amount allowed by the trial judge was about right, in view of what is disclosed by the record.

The decree is affirmed. As both parties have appealed, neither party will recover costs.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    ALLEN v. TALBOT.
    1. Fraud — Vendor and Purchaser — Title—Incumbrances.
    Fraud, authorizing the rescission of a contract for the sale of a farm, appeared from the testimony of complainants that the vendor represented he had a clear title, when, in fact, he had only a contract equity, subject to two mortgages, both overdue.
    2. Same — Rescission—Inconsistent Conduct.
    Complainants’ delay in declaring the contract rescinded was excused by their want of knowledge of the true state of defendant’s title, and by the -fact that defendant promised for some time to furnish an abstract of title, which complainants finally procured at their own expense, and learned the real condition; the fact that complainants negotiated for a new contract, which was never executed or agreed upon, was not such inconsistent conduct as to preclude their right to rescind.
    3. Vendor and Purchaser — Accounting.
    In a suit to rescind a land contract for fraud of the vendor, the vendees must account for the reasonable rental value of the premises while they had possession.
    Appeal from Oakland; Smith, J.
    Submitted June 6, 1912.
    (Docket No. 37.)
    Decided July 10, 1912.
    Bill by George Allen and another against Gash W. Talbot for the rescission of a land contract. From a decree for complainants, defendant appeals.
    Affirmed.

      Jay Fuller, for complainants.

      Ralph B. Wilkinson, for defendant.
   Stone, J.

The complainants are husband and wife. They filed their bill of complaint to have a certain land contract made to them as purchasers by the defendant as vendor on April 27, 1910, declared null and void by reason of fraud practiced upon them by the defendant in fraudulently misrepresenting to them the condition of the title to and character of the land in question.

It appears that at the date above stated the defendant was the owner of an equity in a farm of 40 acres of land in the township of Royal Oak, in Oakland county. Defendant’s interest in this farm was evidenced by a certain land contract which he had entered into on February 1, 1910, with one Andrew Rinkey and wife, in and by which the latter agreed to convey to defendant the land in consideration of $4,000, to be paid as follows: $1,136.59 paid at the date of the contract, and the remaining $2,863.41 to be paid in payments of $15 or more per month, interest payable every six months at 6 per cent, until due, and 8 per cent, thereafter. When the principal sum should be lowered to $1,200, being the amount of a certain mortgage held by the Oakland County Savings Bank of Pontiac, the parties of the first part to said contract should give defendant a deed of the premises, and defendant was to receive a deed subject to said mortgage. The undisputed evidence shows that there were two mortgages on said farm held by said savings bank, one of $1,000 dated July 14, 1906, due one year after date, and another of $250, dated July 5, 1907, payable three years after date, both bearing interest at 6 per cent, per annum.

Such being the condition of defendant’s interest in the said farm, it is the claim of the complainants that he approached them in March, 1910, in the city of Detroit, where all of the parties then lived, and fraudulently and corruptly represented to them that he was the owner of said premises, that he had a warranty deed of the same, that his title thereto was perfect of record, that the same was free from all liens and incumbrances, that, if they would purchase it, there would be no other parties interested therein, and that the land was first-class land for crops, and that the soil was a sandy loam with a clay subsoil, and suitable for raising grains and farm products of all kinds. Complainants further claim that they were wholly unacquainted with farming and the value ot farm lands; that they did go upon the lands, but that the ground was in a frozen condition, and, because of their ignorance of such matters, they were unable to form any correct judgment as to the condition or quality of the soil; that, relying upon the representations of the defendant, who advised them not to consult a lawyer in the matter, they were induced to enter into a contract for the purchase of said premises for the agreed price of $3,900, agreeing to pay $200 on the execution and delivery of the contract, and the remainder in payments of $30 or more per month, with interest at the rate of 6 per cent, per annum to be deducted from the monthly payments until the whole sum should be paid. Complainants moved onto the farm in May, 1910. It is their claim that the land was practically worthless for farming purposes, and that they were unable to raise any crops that would pay for harvesting. Complainants made their monthly payments down to and including the month of November, 1910.

In the month of December, when they went to pay the taxes on the farm, the complainants claim that they discovered that the lands were assessed to Rinkey. They paid the taxes, and then made inquiry about some fire insurance premium that they had learned was due on the buildings, and were informed that they had no insurable interest in the buildings, and that the insurance was in Rinkey’s name. They claim that this made them suspicious about the state of the title, and that they applied to the defendant for an abstract of title, which he promised from time to time to(get for them, but never did. After waiting in vain some weeks for the promised abstract, complainants finally obtained one themselves, which showed the true condition of the title. Upon defendant learning what had been done, complainants claim that he became very angry, and, as they were then in arrears in their monthly payments, he served notice of forfeiture of the contract, and it is undisputed that he commenced summary proceedings to get possession of the farm, which proceedings were pending when the bill in this cause was filed.

The defendant by his answer denied all fraud and fraudulent representations, and claimed the benefit of a cross-bill, and prayed that his land contract be foreclosed, the premises sold, and that complainants be decreed liable for any deficiency there might be due him thereon. All of the parties testified at the hearing, and the testimony was taken in open court as in a suit at law. There was a sharp conflict in the testimony of the parties on most of the material questions. The defendant denied that he made any representations as to the state or condition of the title, and testified that nothing was said upon the sub" ject The latter claim seems to us improbable. The complainants testified in support of their claim, and that they had actually paid on the contract $370 and $17.09 in taxes. They also testified that they had expended in improvements on the farm, including manure hauled and spread, $187.80. This last sum also included interest on the money paid on contract at time of purchase. They also made claim of $40 and $2.40 of interest, being the amount of a balance due on a note of $50 given by them for a part of the cash payment on the contract, upon which note suit had been brought by defendant as plaintiff and a judgment entered against them therefor.

The circuit court entered a decree for the complainants declaring the contract null and void, for fraud, and vacating and setting the same aside and dismissing the cross-bill. It also adjudged that defendant should pay to complainants $525 and interest from the date of the decree, being for the amount paid by complainants on said land contract, and for improvements made by complainants on said premises, together with complainants’ costs to be taxed, and awarded execution therefor.

The defendant has appealed. He contends in this court that it is not conclusively shown that complainants were deceived by any representations made by defendant as to his title to the property. We are of opinion that the circuit judge reached the correct conclusion upon that branch of the case. Not only did the circuit judge have the superior advantage of seeing and hearing the witnesses testify, but we are of opinion that by a clear preponderance of the evidence it appears that such representations were made by defendant, and were relied upon by complainants, and that such representations were material representations of alleged facts.

Instead of having a perfect title to this land in fee as represented, the defendant had an equity, in peril of being foreclosed and cut off by an overdue mortgage. At most, he gave complainants an equity of an equity, liable to be cut off by two mortgages, both overdue at the time of hearing. Not only is this true, but defendant had agreed to accept a deed from his grantor subject to and agreeing to assume those mortgages. That such representations of condition of title were material has been repeatedly held. See collection of authorities in Wegner v. Herkimer, 167 Mich. 587-595 (133 N. W. 623). It is contended by defendant that this representation as to condition of title is no ground for rescission of the contract, and he cites Silfver v. Daenzer, 167 Mich. 362 (133 N. W. 16), in support of such claim. We think that the case is readily distinguished. Here fraud is charged and proven. There no fraud was claimed, and it appeared that the contract was made in good faith, and the defect was susceptible of being easily perfected, and, by the undisputed testimony, would be perfected by decree in a case then pending for that purpose.

It is also claimed by defendant that complainants by their conduct are entitled to no relief; that they remained in possession and were content until they got in arrears in making the monthly payments; and that they made application to defendant for a new contract after knowledge of all the facts. We cannot agree with this contention. Complainants got in arrears while they were waiting for the promised abstract. After they learned the true condition of the title, it is true that there was some talk leading to a new contract, which was never entered into. Upon the precipitate action of the defendant to declare the contract forfeited, and to get possession, the complainants promptly filed this bill. We do not think that they were guilty of laches, or inconsistent conduct.

We think, hpwever, that defendant should be allowed for the rental value of the premises while occupied by complainants. We understand that they have left the land. There was evidence of its rental value. We think that the decree should be so modified as to allow defendant $125 for the use of the land while occupied by complainants, and that the judgment on the $40 note should be discharged by the defendant. The amount of complainants’ recovery against defendant will be $400, instead of $525. The decree will be modified as herein indicated, and will stand affirmed in all other respects, including costs to complainants in the court below. The defendant will recover his costs of this court.

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


text:
    PEOPLE v. WILSON.
    1. Criminal Law — Evidence—Rape—Unohastity of Complaining Witness — Impeachment.
    Cross-examination, on a trial for statutory rape, tending to show that the complaining witness, a female under 16 years of age, had made false accusations of criminal relations with other men in the community than respondent, and had subsequently admitted the falsity of her charges, was improperly excluded on the ground that her chastity was not in issue; the evidence was competent to affect or impeach her credibility.

      2. Same — Trial—Jury
    And the court erred in refusing to permit a brother of one of the jurors to testify relative to respondent’s good character; witness’ relationship did not affect his competency as a witness, nor did the fact that other witnesses were sworn to the same point meet the objection or cure the error.
    Error to Missaukee; Lamb, J.
    Submitted June 13, 1912.
    (Docket No. 128.)
    Decided July 10, 1912.
    Ari W. Wilson was convicted of statutory rape.
    Reversed.

      Norman W. Dunan and Sawyer & Penny, for appellant.

      Franz C. Kuhn, Attorney General, and Henry Miltner, Prosecuting Attorney, for the people.
   Stone, J.

The respondent was convicted and sentenced for the crime of statutory rape upon one Myrtle McNeil, a female child under the age of 16 years, to wit, of the age of 15 years.

The respondent has brought the case here for review upon writ of error, assigning a number of errors. We shall not find it necessary to discuss at length all of the assignments of error.

The first and second assignments of error may be considered together, and relate to matters which arose upon the cross-examination of Myrtle McNeil, the complaining witness. Upon her direct examination she had testified to an act of sexual intercourse on July 1,1911, as charged in the information. Upon her cross-examination the following occurred:

“Q. Now, Myrtle, haven’t you made the same complaint against a number of other men ?
“Prosecuting Attorney: That is objected to as being immaterial and incompetent.
“The Court: I sustain the objection.
“Q. Now, didn’t you make a similar complaint against Mr. Parks when you stopped working there ?
“Prosecuting Attorney: We object to that.
“The Court: I sustain that objection, and I will say now that you need not pursue that line of cross-examination at all, because I shall sustain every objection made to a question of that kind.
“Respondent’s Counsel: We propose to show, your honor—
“The Court: Now, FI1 not permit that. I want it thoroughly understood that there will be no testimony admitted here, or any question put to this witness bearing on her chastity or want of it.
“Respondent’s Counsel: It is not asked for that purpose, your honor. It is to show her credibility as a witness.
“The Court: It is not admissible for that purpose.
“Respondent’s Counsel: Any offer along these lines will be denied by the court ? Do I. so understand it ?
“The Court: Any statement of what you propose to prove along these lines will be denied; yes, sir.
“jRespondent’s Counsel: Note an exception.”

During the course of the cross-examination of the same witness, and in the absence of the jury, the following occurred:

“ By Respondent’s Counsel: Your honor, in order that I may make my offer of yesterday clear to the court, which I did not then do, I offer at this time to show that the witness Myrtle McNeil has made accusations similar to the one in question against three different men in this county, who are our best citizens, and, after making these accusations, she has acknowledged them to be false and untrue. I ask to be allowed to show that — ask it at this time so that Myrtle McNeil may be cross-examined upon it. Then I will follow that up, and carry it out by producing those men against whom she made the charges, and the people to whom she confessed those charges were false. I want this to be understood, your honor, but I offer it, not to show that the credibility of this witness can be affected by her lack of chastity, but I offer it to show that she is morbid — in a morbid condition of mind and body — and she is subject to hallucinations in making charges of this kind. This is part of our main defense, and I wish to cite the case of People v. Evans.
“ The Court: Since that case has been decided the law has been changed, raising the age of consent from 14 to 16 years of age. I am quite familiar with the law and also with the proposition that, if this girl was 16 years of age or over, that specific acts of unchastity could be gone into for the purpose of affecting her credibility. But this is a different proposition. There is no question but that would apply if the girl was over the age of consent. The age of consent at that time was 14, so it would not be a parallel case with this at all.
Respondent's Counsel: We claim, your honor, to have the right to come in here and show that she is subject to making these identical charges, and then, after she has made them, confess that they ar® false and untrue.
The Court: I think, if you want to affect her credibility in any way, you would have to do it in the regular way; that is, her credibility as a witness, her truth and veracity, or the lack of it, would have to be shown in the usual and general way, and not in specific instances. I think that would be a proper subject of inquiry. But to ask her questions on the stand that. would clearly affect her chastity by plain inference would be within the rule.
Respondent's Counsel: Well, I want to go one step further: Does the court refuse to allow me to bring those parties on, and show that she has made those charges concerning them, and also that she has confessed them to be false, would the ruling of the court prevent me doing that ?
The Court: Yes; it would.
Respondent's Counsel: Those propositions, then, are denied by the court ?
The Court: Yes, sir.
“ Respondent's Counsel: Note an exception.”

Error is assigned upon these rulings. It is the claim of respondent’s counsel that the above rulings constituted prejudicial error, and that he should have been allowed, not only to cross-examine the witness on the subject, but also to offer affirmative evidence of the fact of such charges and their denials, both as affecting her credibility as a witness, and as bearing upon her mental condition; and he cites in support of his position the case of People v. Evans, 72 Mich. 367, 377, 379 (40 N. W. 473). In that case the trial court permitted the question to be asked and answered on cross-examination, but held that respondent was concluded by the answer, and could not contradict the witness by other evidence. Exception was taken, and error was assigned upon this ruling. This court said:

“We think this evidence should have been admitted. * * * The jury were asked to tabfe her story, and in reliance thereon find the respondent guilty. It became a question of fact for their consideration; and they ought to have been made acquainted, under the circumstances stated and proven, with the mental and moral qualities of the girl. If she was accustomed, and had on numerous occasions, as claimed by counsel for respondent, made statements charging, not only her brothers, but numerous other men of that community, with other similar offenses, and then admitted the falsity of such charges, it would have a tendency to show a morbid condition of mind or body, and go a long way in explaining this charge, which, under the circumstances, and the surroundings shown to exist, seems almost unaccountable. It is claimed that the testimony offered would tend to show that she was the subject of hallucinations upon this subject, and is in its nature independent evidence, and in no sense collateral.
“We think this view is sustained in the case of Derwin v. Parsons, 52 Mich. 426 (18 N. W. 200, 50 Am. Rep. 262). Mr. Justice Cooley, in his opinion in that case, says:
“ ‘The case was one which justified a good degree of liberality in the admission of evidence. The parties were directly opposed in their testimony, and the jury would-be likely to accept the statement of the one who was best supported by the circumstances. * * * To questions whether the plaintiff had not made charges similar in nature against two other persons, objection was made, but we have no doubt it was proper to allow them, and also to prove the facts, if she denied having made the charges.’ ”

The trial judge seems to have been of opinion that the change in the statute relating to the age of legal consent should distinguish the instant case from the Evans Gase. Both were dealing with the testimony of the complaining witness, and both had to do with the credibility of the witness as such, and not with the question of chastity, or unchastity. In fact, it was sought to show that the girl by her own statements had not been unchaste, but that she was not entitled to belief by reason of contradictory statements that were material. We think that both the trial judge and counsel for the people misapprehended the scope of the inquiry, which was not an attempt to show other acts of unchastity, but other statements inconsistent with her testimony. Counsel for the people cite cases to the effect that other specific acts of unchastity cannot be shown in such a case; also, that the girl’s general reputation for unchastity is not involved in a case where the girl is under the age of legal consent. We agree to this doctrine, but repeat that we do not understand by the line of evidence offered that any attack was being made upon the chastity of this girl. As cross-examination, as laying the foundation for collateral impeachment, and as an offer of independent evidence relating to similar charges and their denials, we are constrained to hold that the court erred in excluding the offered testimony. It is no answer to say that the girl was corroborated by other witnesses. That fact would not change a rule of evidence.

The eighth assignment of error is to the effect that the court erred in refusing to allow William Kelean, a witness called for the defense, to testify because his brother was on the jury. The record shows that the respondent sought to show his good character by a number of witnesses residing in the community. Among others William Kelean was called to testify upon that subject. Upon the objection of the assistant prosecuting attorney the court said:

“I think I will sustain the objection to his being sworn on the ground stated by Mr. Gaffney; he being a brother of one of the jurors;” to which ruling the respondent excepted.

We are of the opinion that this ruling was unwarranted, and cannot be justified. The counsel for the people seek to justify the ruling by saying that numerous other witnesses did testify upon the subject, and that the circuit judge had the right to limit evidence of this kind. We have quoted the language of the court to show that the ruling was not placed upon the latter ground. The materiality and the importance and bearing of testimony of good character have been often referred to by this court. People v. Garbutt, 17 Mich. 27 (97 Am. Dec. 162); People v. Jassino, 100 Mich. 536 (59 N. W. 230); People v. Laird, 102 Mich. 135, and note (60 N. W. 457). We know of no rule that gives the trial judge the right to exclude a witness for the reason stated, and we think that it is a practice that should not be sanctioned. We are of opinion that by this ruling the respondent was denied a substantial right.

We find no other reversible error in the record. For the errors discussed, the judgment of the circuit court is reversed and a new trial granted. The respondent will be remanded, to be dealt with as the law directs.

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


author: Moore, C. J.

text:
    PEOPLE v. BELL.
    Intoxicating Liquors — Druggists—Physicians and Surgeons— Local Option
    Under the local-option law, 2 Comp. Laws, § 5412 et seq., as amended by Act No. 261, Pub. Acts 1911, a physician in a county that has prohibited the sale of intoxicating liquors, who is not a licensed druggist and who keeps a place where intoxicating liquors are dispensed, sold, or furnished, violates the statute.
    Exceptions before sentence from Ionia; Davis, J.
    Submitted June 13, 1912.
    (Docket No. 130.)
    Decided July 11, 1912.

      Robert B. Bell was convicted of keeping a place where intoxicating liquors were sold or dispensed in violation of the local-option law.
    Affirmed.

      Alfred B. Locke, Prosecuting Attorney, for the people.

      James Scully and Divert M. Davis, for respondent.
   Moore, C. J.

The respondent is a practicing physician at Portland, Ionia county, Mich. He was convicted of a violation of the local-option law, so called. The case is here on exceptions before sentence. The information covers the period from July 1, 1911, to November 1, 1911. It was admitted that the local-option law was in force in Ionia county during this period of time, and that the respondent was not a druggist nor registered pharmacist, and had not filed a bond as such.

The people produced several witnesses. We quote the testimony of one of them to show the manner in which respondent did business:

“ I have lived in Portland about 25 or 30 years. I am a common laborer. I have known Dr. Bell about a year. His place of business is on Kent street. He is a doctor. I never purchased any liquor there only for medicinal purposes. I came home from the country. I had been at. work in the country. My wife was sick and I wanted some liquor, and got it. I think it was in the month of October. I got a pint, and he charged me a half a dollar. I asked him for whisky for medicinal purposes. I told him it was for my wife. I took the whisky home. My wife drank it. Probably a couple of weeks after that I got another pint of whisky for medicinal purposes. I told him my wife wanted the liquor. He had looked my wife over before that, last fall. It must have been a month before this. The trouble with my wife was change of life.”

Cross-examination by Mr. Scully:

“ I lived here 25 or 30 years. I worked here in town and in the country. I have known the doctor about a year. He has treated me and doctored my family some. He was called to my place last fall to examine my wife, and made a personal examination of her condition. This liquor I wanted for my wife and told the doctor so. He came to see her about a month before I got the liquor, that is what I understood. I told him I wanted some liquor for my wife for medical purposes; that she was not well. My wife was nervous and all unstrung, and had the usual troubles a woman has during the change of life. She used the liquor herself.”

It was shown by a member of a wholesale liquor house that there was sold by his firm and delivered to the respondent at Portland between July 12, 1911, and November 1, 1911, 210 gallons of whisky, gin, wine, and other intoxicating liquors. It was also shown that a deputy sheriff with a search warrant visited the office and premises of the respondent, and found “some intoxicating liquors there at that time. I think there was 33 pint bottles of whisky and a gallon bottle, and a gallon of gin, I can’t say exactly, but several other large bottles. I took possession of them.” Respondent had posted in his office a tax receipt from the Federal authorities showing he had paid the government tax as a retail liquor dealer.

The defense is that, because respondent is a regular practicing physician and surgeon, he has the legal right to keep, sell, furnish, and give away intoxicating liquors to his patients as they may require for medicinal purposes. The respondent was sworn in his own behalf, and stated that he had some correspondence with the office of the attorney general, and introduced in evidence a letter reading as follows:

“ State of Michigan, Office of Attorney General.
“Lansing, October 20, 1910.
“Robert B. Bell, M. D., Portland, Mich.
Dear Sir:
“Your letter of October 19th, duly received. In reply thereto would say that this department has held a physician practicing in a county where the local-option law has been adopted, may administer intoxicating liquors to patients as a part of his treatment. Physicians are not, however, to become common sellers of such liquors, but if in good faith they administer the same as a part of their treatment, we do not believe this would be a violation of the local-option law.
“Yours respectfully.”

It was respondent’s claim that druggists at Portland would not fill doctors’ prescriptions, and that he had never sold intoxicating liquors without thinking its recipient needed it as a medicine. Several doctors were sworn to the effect that intoxicating liquors were regarded as medicines in many diseases.

At the close of the testimony the following occurred:

“ Thereupon the prosecuting attorney moved the court for the direction of a verdict of guilty as charged in the information, and thereupon counsel for respondent moved the court to direct a verdict of not guilty.”

No requests to charge were filed by either side.

The trial judge submitted the case to the jury in a long charge, from which we quote as follows:

“ In these cases it is for the court to determine what the law is, and to interpret its meaning. That responsibility rests with the court. Also it rests with the court to instruct the jury as to what that law is, and then it becomes the duty of the jury to accept the instructions of the court and follow his interpretation of the law, and it becomes the duty of the court to direct whether under certain proven facts the defendant be found guilty and under what circumstances the defendant should be found not guilty.
“Sometimes it becomes the duty of the court to direct the jury as to what their verdict should be if they believe certain testimony to be true, and it becomes the duty of the jury to follow the instructions of the court as to the law. It is the duty of the jury and they assume the responsibility of determining whether facts may be submitted to them by the court. So each, the court and the jury, have their respective provinces. * * *
“ Testimony on the part of the people in this case has been adduced tending, as they claim, to show the respondent in this case kept a place where intoxicating liquors were sold, stored for sale, and furnished; that the respondent was not then and there a druggist or registered pharmacist engaged in the sale of intoxicating liquors in compliance with the law.
“ The claim is also made by the people and proof is offered tending, as they claim, to show and establish that the defendant did keep this place, used and occupied as an office in his business as a physician, and that he kept intoxicating liquors there; that he sold them to various parties; also, that he had not secured the right in compliance with the law as required from druggists .and pharmacists to dispense liquors.
“ Now the first question in this case the court must determine, as I have already stated, that is: Does the law of this State forbid a person who is a physician and not a licensed druggist, a druggist who has complied with the, law by filing his bond — although a physician is authorized to practice medicine, is he authorized under the law to dispense intoxicating liquors or keep a place where it is. dispensed, furnished, or sold ?
“ If so, then the question is important, if he is authorized so to do, then the question of good faith would be important in determining the extent of furnishing or dispensing, as to whether he has by exceeding his rights violated the law. We have a statute which reads as follows:
'“It shall be unlawful for any person, directly or indirectly, himself, or by his clerk, agent, or employé, to manufacture, sell, keep for sale, give away or furnish vinous, malt, brewed, fermented or spirituous or intoxicating liquors, or any mixed liquor or beverages, or keep a saloon or any other place where any such liquors are manufactured, sold, stored for sale, given away or furnished in any county of this State on and after the first day of May next follow* ing after the adoption by the board of supervisors of such county of a resolution prohibiting the same.’
“It has been shown in this case that resolution has been adopted and local option, so called, was in force in this county from the 1st of July until the 9th of November last. And there is a provision in this section which reads as follows:
'“The provisions of this section shall not apply to druggists or registered pharmacists selling such liquors under and in compliance with the restrictions and requirements imposed upon them by sections 25 and 2S.’
“And further: A prescription given by a regular physician would entitle a party to obtain liquor at the drug store, but the law is silent as to a physician dispensing liquor. They have the right to say whether a man needs it. They have a right to give a prescription, and that man can go to a drug store and obtain that liquor after that determination is made, but nowhere does the law give in words the right to a physician to dispense. It safeguards the handling of liquor by the drug store keeper by requiring a bond and stating the conditions under which that druggist shall sell or furnish, but nowhere does it impose any condition or state upon what terms any other person can dispense liquor.
“So far as any question as to what we think the law ought to be, what our prejudices may be, or how we may feel personally towards persons that may be charged with a violation of it, does the law authorize the respondent to dispense liquor, alcoholic liquor ?
“After a consideration of this question, gentlemen, the defense claim in this case that alcoholic liquor is and should be considered as a medicine. Therefore, a physician authorized under the State law to practice medicine in every branch of its various departments, or in every department of that system, has a right to dispense liquor as a medicine.
“As a question of law, I state to you that alcoholic liquor is not to be included in the list of drugs or medicines that is not referred to by the terms of this law. It may be used, alcoholic liquor may be used, in connection with the practice of medicine, it is true. The statute is not only silent as to giving a physician the right, but expressly says it shall be unlawful for any person to keep a place where such liquors are sold and dispensed, except druggists under certain conditions. The defendant does not fall within the exceptions in this case. He has not complied with the conditions the law imposes.
“ A drug store under this law, gentlemen, is the only legal place in the county for keeping liquors of this character for sale. A druggist is the only one authorized to sell and dispense, and that must be upon a written prescription of a physician afer a diagnosis of the ailment in the case.
“ When the law forbids you and I cannot change it, we cannot extend its meaning nor its provisions. We cannot and should not read into the law what was not there written nor intended, not being there in letter nor in spirit. The sale, or keeping a place for the sale of intoxicating liquors, is not practicing medicine as contemplated by the statute as to its several departments. No permit by law was given to this defendant, or to physicians not having complied with the terms of the exceptions, and they are prohibited the same as other persons. It may be it will be a hardship in some cases, but it is our duty to enforce the law as we find it. If a change in the law is desired by the people, application will have to be made to the legislature of this State, and not in the courts.
“ So I say to you, gentlemen, if you believe the defendant kept a place where intoxicating liquors were sold, stored for sale, and furnished, it is your duty to return a verdict of guilty. If you are so satisfied beyond a reasonable doubt. If you are not satisfied, it is your duty to acquit. You may retire, gentlemen, and consider your verdict.”

The jury returned a verdict of guilty.

The contention of counsel for respondent is as follows:

‘ ‘Although there are 10 assignments of error in this bill of exceptions and record, there is in reality but one important question for the consideration of the court, and we believe it logically requires discussion at the beginning of our brief. Can a physician, engaged in the regular practice of his profession in a county where the Michigan local-option law is in force, administer intoxicating liquors as medicine to his patients after such examination or diag^ nosis as satisfies his professional judgment that intoxicating liquor is indicated as proper medical treatment ? By the refusal to direct a verdict in favor of the respondent in this case, and by the refusal to submit to the jury the question of the good faith of the respondent, and by the direction of a verdict in favor of the people in the case at bar, the trial court has determined that it is not lawful under any circumstances for a physician in a local-option county to administer and dispense intoxicating liquors medicinally to his patients.”

An examination of the record will show .that the above contention is not sustained by the record. As before stated, the respondent insisted upon a directed verdict in his favor. He made no requests to charge. It is true the court, after quoting from the statute, said, “ but nowhere does the law give in words the right to a physician to dispense,” but a reading of the entire charge shows that the question was put up to the jury:

" So I say to you, gentlemen, if you believe the defendant kept a place where intoxicating liquors were sold, stored for sale and furnished, it is your duty to return a verdict of guilty, if you are so satisfied beyond a reasonable doubt. If you are not satisfied, it is your duty to acquit. You may retire, gentlemen, and consider your verdict.”

Upon this record as made it is not necessary to pass upon the question of whether the attorney general’s office was right in saying to respondent that in a local-option county a practicing physician "may administer intoxicating liquors to patients as a part of his treatment, * *' * ” but, if in good faith they administer the same as a part of their treatment, they are not within the law. There was an abundance of testimony that respondent did not follow the suggestions made in this letter. The following authorities are germane to the questions involved: Section 1 of Act No. 261 of the Public Acts of 1911, reading in part as follows:

"It shall be unlawful for any person, directly or indirectly, himself, or by his clerk, agent or employé, to manufacture, sell, keep for sale, give away or furnish any vinous, malt, brewed, fermented, spirituous or intoxicating liquors, or any mixed liquor or beverages, any part of which is intoxicating, or keep a saloon or any other place where any such liquors are manufactured, sold, stored for sale, given away or furnished in any county oí this State on and after the first day of May next following after the adoption by the board of supervisors of such county of a resolution prohibiting the same. * * * Provided, however, that the provisions of this section shall not apply to druggists or registered pharmacists selling any such liquors under and in compliance with the restrictions and requirments imposed upon them by sections twenty-five and twenty-six of this act and who have given the bond required by the general liquor law of this State.”

The case of People v. Rice, 161 Mich. 657 (126 N. W. 981); following which case an amendment was made to the law (section 26, Act No. 261, Pub. Acts 1911), which we quote as follows:

"Any physician who prescribes any of the liquors hereinbefore mentioned for any person who he knows or has good reason to believe intends to use them in whole or in part as a beverage or in any other manner contrary to the provisions of this act or without a diagnosis showing that liquor is indicated shall be guilty of violating this act.”

In People v. Sharrar, 164 Mich. 267 (127 N. W. 801, 130 N W. 693), this court said, among other things:

“ The purpose of the local-option law is to prohibit sales of liquor as a beverage in certain localities. It is not its purpose to forbid, or even to diminish, sales of liquor for medicinal or mechanical purposes. In local-option counties the drug store is the only place whore liquor may be dispensed for such lawful purposes. The regulations and restrictions upon the traffic are aimed at preventing sales of liquor to be used as a beverage under the guise of sales for medicinal and scientific purposes.”

See, also, Holt v. State, 62 Neb. 134 (86 N. W. 1073); Carson v. State, 69 Ala. 235; State v. Gray, 61 Conn. 39 (22 Atl. 675); State v. Fleming, 32 Kan. 588 (5 Pac. 19); State v. Bissell, 67 Iowa, 616 (25 N. W. 831); State v. Benadom, 79 Iowa, 90 (44 N. W. 218).

The conviction is affirmed, and the cause is remanded for further proceedings.

Steere, McAlvay, Brooke, Stone, and Bird, JJ., concurred. Blair and Ostrander, JJ., did not sit.


text:
    PEOPLE v. BRYAN.
    1. Criminal Law — Trial—Cross-Examination.
    A respondent, charged with larceny, who offered herself as a witness in her own defense, became subject to the same latitude, on cross-examination, as other witnesses, and it was within the discretion of the trial judge to permit the prosecutor to inquire into crimes committed by her after the offense charged, and to show her associations and character.

      2. Same — Charge.
    The court did not err in charging the jury, upon the testimony of complaining witness, that it was not disputed that he had the money, that he was in the place where he charged respondent robbed him, or that he was robbed by a colored woman, leaving to the jury only the question in dispute, whether respondent committed the offense.
    Error to the recorder’s court of the city of Detroit; Phelan, J.
    Submitted June 13, 1912.
    (Docket No. 139.)
    Decided July 10, 1912.
    Helen Bryan was convicted of larceny.
    Affirmed.

      Hugh Shepherd, Prosecuting Attorney, and Gteorge A. Kelly, Assistant Prosecuting Attorney, for the people.

      James B. Neill, for respondent.
   Moore, C. J.

The respondent was tried and convicted in the recorder’s court for the city of Detroit under an information charging larceny from the person. The case is' brought here by writ of error.

The assignments of error may be grouped as follows:

(1) Because of the fact that counsel for the people was permitted to show other crimes subsequent to the one charged in the information.

(2) Because of the scope of the cross-examination of the respondent, in which counsel for the people was permitted to go into the life of the respondent, showing her associations and character.

(3) Because of the charge of the court.

We will take up these groups in the above order.

These assignments of error are not sustained by the ' record; on the contrary, the court ruled that a subsequent offense could not be shown.

The respondent was a witness in her own behalf. When she became a witness she thereby became subject to the same latitude in cross-examination as other witnesses. The trial judge did not abuse his discretion in this respect. Wilbur v. Flood, 16 Mich. 40 (93 Am. Dec. 203); Comstock v. Smith, 20 Mich. 338; Barnett v. Insurance Co., 115 Mich. 247 (73 N. W. 372).

That part of the charge about which complaint is made is as follows:

“ It is not disputed that he had that amount of money in his possession, or that he was in the neighborhood of Brush and Beacon streets, on the night he claims he was robbed. Neither is it disputed that he was robbed, and it is not disputed that he was (not) robbed by a colored woman.”

The record shows this portion of the charge of the judge to be true. The complaining witness swore to these facts, and no one contradicted him. See People v. Hawkins, 106 Mich. 479 (64 N. W. 736). It was not until the question arose as to who took his money that a dispute arose. As to that question and all disputed questions they were left to the jury; the court instructing them correctly as to the law applicable thereto.

We discover no error in the record.

The conviction is affirmed.

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


author: Ostrander, J.

text:
    HANEY v. ALLEGAN CIRCUIT JUDGE.
    Appeal and Error — Parties—Joinder.
    A party not joined as complainant or defendant, in a suit to redeem from a tax title, may not join with one of the defendants in appealing from an order of the court denying the modification of an order allowing a writ of assistance on application of such third party, who never filed a petition to intervene in the case and who claimed title by distinct grant, not through any of the parties to the suit; nor could he unite with defendant in an appeal from the order granting such writ.

      Mandamus by George M. Haney and another to compel Philip Padgham, Allegan circuit judge, to approve an appeal bond and settle a record on appeal.
    Submitted June 14, 1912.
    (Calendar No. 23,916.)
    Writ denied July 10, 1912.

      Eugene Carpenter, for relators.

      Brown & Farley, for respondent.
   Ostrander, J.

From the mass of matter contained in the 152 pages of record printed by the relators is to be gathered the following facts: Relators proposed to jointly appeal from an order, made October 12, 1909, granting to one Miller a writ of assistance in certain tax proceedings. George M. Haney was not a party to those proceedings, nor a party to the application for the writ of assistance.

The parties were Archie T. Miller, the tax title owner, and Elijah Haney and his wife, the owners of the original title to the land. Relators also proposed, jointly, and in the single proceeding, to appeal from an order, made November 6, 1909, dismissing the petition of George M. Haney for a modification of the said order of October 12, 1909. The appeal bond offered for approval refers to and recites a joint appeal. The circuit judge, respondent, refused to approve the bond and refused to settle as a case for appeal the testimony taken upon the hearing of the application of Miller for the writ of assistance. In his answer to the order to show cause he assigned, among other reasons, for his refusal, the one that the relators were not entitled to jointly appeal from said orders. This court is asked to compel the settlement of a case for appeal and an approval of the bond.

The relief must be denied, for the reasons asserted by the respondent, and for other reasons. Relator George M. Haney is not a party upon the record in the tax proceeding. The decree did not run against him. The order allowing the writ of assistance does not run against him. It directs the sheriff to enter upon the premises and eject and remove therefrom Elijah Haney and his wife—

“ And each and every person who since the service of said notice for reconveyance has come into the possession of said premises, * * * through or under the said respondents, or any of them, and that he put the said Archie * * * in the full and quiet possession of said premises without delay.”

It is not claimed that George M. Haney is in possession of any of the premises through or under Elijah Haney, and it is claimed that he holds possession, by virtue of an auditor general’s deed, adversely to every one. Manifestly, Elijah Haney is not interested in an appeal from the order denying the petition of George M. Haney. He has not claimed the right, on his own account, to appeal from the order granting the writ of assistance. George M. Haney has not asserted the right to appeal, on his own account, from the order denying his petition for a modification of the order allowing the writ of assistance. Aside from these considerations, it appears that Elijah Haney had notice of the application for a writ of assistance and was represented by his solicitor at the hearing. No answer to the petition for the writ was filed. No testimony was produced in his behalf. In the course of the hearing, his solicitor informed the court that he desired to file an answer before the matter was concluded and in all probability to file with the answer a petition in the tax proceeding for leave to file a bill of review, “ at least I think I shall.” He made various objections to the testimony offered on the part of the petitioner and at one point said:

“We can file a general denial during the day, for that matter, to this petition.”

Later, he said:

“I can answer that petition by making a general denial of it now. I desire to file an answer in writing, and I desire also to file an answer in this case for a party who does not appear of record, who is interested in this property — in connection with the answer in this case.”

He was informed that such a course would not be con- ' sented to by counsel. The hearing concluded with the following:

The Court: I think that in this matter the petition should be granted.
“Mr. Carpenter: I desire, before the matter is passed, the opportunity of filing the objections in writing upon this holding.
“The Court: I supposed you had put in your objections. Of course, the time for filing an answer unless it was given — I supposed the hearing was for this morning. If there is any objection you desired to put in by way of answer, it should have been done before the present time.
“Mr. Carpenter: I can before the case is finally disposed of put in an answer in this matter, and I desire to put in some objections in this matter.
“Mr. Farley: It is a good ways from our home.
“Mr. Carpenter: I just waived this matter of filing an answer this morning, rather than to come in and ask an adjournment of this proceeding.
“Mr. Farley: There wasn’t anything said to us.
“The Court: There was nothing said about waiver of answer until we got about halfway through with the proof. Then you announced you desired to file an answer.
“Mr. Carpenter: I announced in the beginning I would probably want to file an answer and probably file a bill of review, before I went into this matter.
The Court: I hardly think we can wait for that. You have had time. There is no answer here, and there was nothing said about an answer until after the matter was opened. If an answer had been filed and it had been necessary for Mr. Miller to have appeared here to show that he made this demand, he would have been here probably. As I understand, that part of it is practically admitted, that he came there and presented papers, which he says he did in his petition, and demanded possession, and it was refused, and, as you say, Mr. Haney had delivered up possession to some other man that had come along some little time before and delivered up possession to him, a party that came to him and showed him he had a tax deed.
“Mr. Carpenter: I desire to have the matter appear upon the record.
“Mr. Farley: You have all your objections.
“Mr. Carpenter: No, I have not. I desire to offer the tax records and I ask grace to put in a defense in this case. All I care for is that this matter can appear in this record. I have got some proof. I have the deed to show that the party is in possession of the property.
“The Court: I do not think under your statement that would make any difference with this matter. It seems to me the proceedings in this case in the first place to take the decree were proper. Notice for reconveyance was properly served some three or four years ago, or five— three or four years ago at any rate — in 1904. The sheriff has made his return. This petition has been served asking for a writ of assistance under the proceedings at that time. It seems to me all the steps taken were regular, and that he is entitled to a writ of assistance at this time.
“Mr. Farley: I will prepare that order for a writ of assistance if I have the time before leaving, or can I mail it to your honor ?
“The Court: Yes, you can do that.
“Mr. Carpenter: I wish to make the offer of this testimony so it will appear that I offer—
Mr. Farley (interrupting): We object to the offer.
“Mr. Carpenter: I desire an objection. I wish it to appear in the record that the defendant — not the defendant in this case, but George M. Haney, appears in this proceeding.
“Mr. Farley: We don’t know George M. Haney and never heard of him.
Mr. Carpenter: He offers to appear here.
Mr. Farley: Well, we object to it.
The Court: You may prepare your writ of assistance.
Mr. Farley: Yes, I will try and do that before I go home.
Mr. Carpenter: I wish to arrange or have an understanding in regard to settling this record from the minutes of the stenographer. There will be an appeal taken.
“ The Court: That is a matter you would not have to agree with him.”

Relator George M. Haney made no motion for leave to intervene in the matter of the application for a writ of assistance. He did not put himself in a position to be bound, or affected, by such determination of that proceeding as the court might make. No continuance was asked for. Nothing was done, upon the record, either to establiab the right of Elijah Haney to contest the issuing of the writ of assistance, or to bring in George M. Haney, as a party intervening, or otherwise.. Indeed, the statements made by the solicitor for Elijah Haney support the conclusion that Elijah Haney was not, and did not claim to be, in possession of the land and did not occupy, or claim to occupy, presently, a position from which he could contest the issuing of the writ of assistance. Later, George M. Haney filed a petition by — and signed by — his solicitor, stating that he was not a party to the tax proceeding, nor to the proceeding for a writ of assistance, but was interested in a portion of the land in controversy and was in possession thereof by a tenant, holding an adverse and paramount title derived from the auditor general. In the petition, various verbal attacks are made upon the original tax proceedings under which Miller claimed, and it concludes with the statement that petitioner claims—

‘‘The right to raise all of the points and objections stated in the preceding paragraphs to Mr. Miller’s application for writ of assistance, so far as the east 80 acres of land is concerned, and hereby assigns all the grounds and reasons mentioned in the foregoing paragraphs, claiming that all of such grounds exist in this case, for the purpose of, and in support of, this application or motion to have this court so amend the decree, announced by the court, * * * so that such writ of assistance shall not include or be issued against the east one-half,” etc., of the land.

What might have occurred if George M. Haney had seasonably sought for permission to intervene in the tax matter and oppose the issuing of a writ of assistance, we need not consider What he seeks now is an order permitting him to appeal from the order granting the writ of assistance, and he seeks this, not on his own behalf alone, but jointly with another, as to whose possible rights his own are asserted to be adverse.

Various phases of the litigation which has been carried on by Elijah Haney and Archie T. Miller about the title to the land in controversy appear in Haney v. Miller, 154 Mich. 337 (117 N. W. 71, 745); Haney v. Allegan Circuit Judge, 164 Mich. 581 (129 N. W. 865); Haney v. Auditor General, 165 Mich. 681 (131 N. W. 386); Haney v. Allegan Circuit Judge, 167 Mich. 489 (133 N. W. 482).

Without spreading upon the record in this opinion particular references to certain matter contained in the present record, matter scandalous and impertinent in itself, vituperative, and insulting to the respondent, we content ourselves with saying that the solicitor for relators apparently practices according to rules of his own, because in no particular, and in no instance, in the court below, did he comply with the rules of court and of chancery practice generally. The respondent appears to have considered with unusual patience his repeated presentations of applications for a settlement of a case on appeal and for approval of a bond after the first refusal of the court. In this court, neither the record nor the brief are prepared in conformity with the rules of court, and both might with propriety be stricken from the files without consideration.' Statements contained in the record, some of them upon the oath of relators, are proper subjects for investigation in another proceeding. We have nevertheless carefully examined the mass of matter presented without arrangement, and much of it, apparently, without purpose, to discover if a right has been denied the relators.

We do not find any denial of right and decline to issue the writ prayed for. Respondent will recover costs.

Moore, C. J., and Steere, Mo Alva y, Brooke, Stone, and Bird, JJ., concurred. Blair, J., did not sit.


text:
    UNION TRUST CO. v. COMMON COUNCIL OF CITY OF DETROIT.
    1. Taxation — Specific Tax — Land Contracts — Mortgages — Statutes.
    The specific tax on mortgages and land contracts imposed by Act No. 91, Pub. Acts 1911, is in lieu of all other general taxes, including city assessments.
    3. Same — Detroit Charter — Municipal Corporations.
    Provisions of the charter of the city of Detroit authorizing said city to levy taxes upon all property made taxable for State purposes includes only property subject to State and county taxes, not mortgages and contracts paying the specific tax. Detroit Charter, sec. 59, chap. 7.
    3. Same — Constitutional Law — Exemptions—Uniformity—Educational, Charitable and Religious Institutions.
    Said act is not unconstitutional for violating Art. 10, § 4, of the Constitution, requiring specific taxes to be uniform; the objection that the exemption of mortgages, etc., upon property of religious, charitable and other like societies, violates the rule, is not sustained.
    4. Same — Mortgages Included — Time.
    Section 3 of said act includes only mortgages recorded on or after January 1,1913; the provisos following are to be understood as referring to the same class, and exempt from all taxes mortgages thereafter recorded affecting property of such religious, charitable, and educational institutions.
    5. Same — Corporations—Stock and Stockholders.
    In assessing a trust company upon its capital, surplus, and undivided profits, deduction should be made of all funds invested in stocks of corporations which pay taxes upon realty and personalty. "

    6. Same — Partnership Associations.
    Stock of partnership associations, limited, are subject to the same rule under Art. 13, § 3, of the Constitution.
    7. Same — Trust Companies — Illegality of Investment.
    If the trust company illegally invests funds in stock of incorporated associations, exempt from taxation, the remedy is by direct proceedings against the company, not by exercising the taxing power.

      Certiorari to Wayne; Hally, J.
    Submitted June 18, 1912.
    (Calendar No. 25,223.)
    Decided July 10, 1912.
    Mandamus by the Union Trust Company against the common council and assessors of the city of Detroit to compel respondents to deduct from relator’s assessed property the value of certain mortgages and other credits of relator. An order granting the writ is reviewed by respondents on certiorari.
    Affirmed.

      Walter Barlow {Bichard I. Lawson, of counsel), for appellants.

      Campbell, Bulkley & Ledyard, Henry M. Campbell, and Henry Ledyard, for appellee.
   Stone, J.

The relator by petition asked the circuit court of Wayne county to issue a writ of mandamus to compel the common council of the city of Detroit, sitting as a board of assessors, to deduct for taxation purposes from its capital stock, surplus, and undivided profits the items of $655,243.23 of real estate mortgages upon which the specific mortgage tax of one-half of 1 per cent, has been paid to the county treasurer, and $64,947.02 of land contracts on which said tax has been paid to said county treasurer, and $192,295 of stocks claimed to be owned by it in Michigan corporations which pay taxes on their property in this State. The circuit court granted the writ as prayed for by the relator in so far as the foregoing items are concerned, and denied the writ as to an item of $250,000 represented in the capital stock, surplus, and undivided profits of relator by its abstract department, and the relator has not appealed from such denial, hence we shall treat the last item as eliminated from our consideration.

The respondents have sued out the writ of certiorari to review the action of the court below in granting the writ of mandamus compelling the respondents to strike from the assessment roll said items of $655,243.23 and $64,947.02 and $192,295 in assessing the 'relator on its capital stock, surplus, and undivided profits for taxes for the year 1912. The respondents say that the case presents two questions for consideration. One is whether or not trust companies can use mortgages, executory contracts for the sale of real property, and deeds or other instruments that are given to secure debts upon which the specific tax provided for by Act No. 91, Pub. Acts 1911, has been paid to the county treasurer, as an offset against their capital stock, surplus, and undivided profits, in making their annual personal tax statements to the board of assessors of the city of Detroit, to reduce the assessment of their personal taxes thereon. The second question is whether or not the relator can use the stocks owned by it in other Michigan corporations which pay taxes in Michigan on their property as an offset against its capital stock, surplus, and undivided profits to reduce its personal taxes assessed on such stock, surplus, and undivided profits.

The first two sections of Act No. 91 are as follows:

“ Section 1. For the purposes of this act all indebtedness secured by liens upon real property shall constitute that class of credit upon which this act imposes a specific tax. The word c mortgage ’ as used herein shall include every mortgage or other instrument by which a lien is created over or imposed upon real property, notwithstanding it may also be a lien upon other property, or there may be other security for the debt, and shall also include executory contracts for the sale of real property, and deeds or other instruments that are given to secure debts.
“ Sec. 2. A tax of fifty cents for each one hundred dollars and each remaining major fraction thereof of the principal debt or obligation which is, or under any contingency may be, secured by a mortgage upon real property situated within this State recorded on or after the first day of January, nineteen hundred twelve, is hereby imposed on each such mortgage, and shall be collected and paid as hereinafter provided: Provided, that no tax shall be imposed upon any debt or obligation which is, or under any contingency may be, secured by a mortgage upon such real estate as shall be owned and occupied by library, armory, benevolent, charitable, educational and scientific institutions, incorporated under the laws of this State, with the buildings and other property thereon, while occupied by them solely for the purposes for which they were incorporated: Provided, that such exemption shall not apply to fraternal or secret societies, but all charitable homes of such societies shall be exempt: Provided, further, that no tax shall be imposed upon any debt or obligation which is, or under any contingency may be, secured by a mortgage upon any house of public worship with the land on which it stands, the furniture therein and all rights in the pews, and upon any parsonage owned by any religious society of this State and occupied as such; which such mortgage is recorded on or after the first day of January, nineteen hundred twelve: Provided further, no tax shall be imposed upon any building and loan mortgage. The tax imposed by this section shall be in addition to the recording fee now provided for by law.”

Section 6 is as follows:

“ The owner of any mortgage which is now, or which may be recorded before this act takes effect, may present to the county treasurer of the county in which said property is situated an affidavit setting forth the mortgage and the place of record thereof and the amount of principal secured thereby which is unpaid, and may pay a like tax of one-half of one per cent, upon such amount, and thereafter said mortgage for the purpose of taxation is to be considered and treated the same as other mortgages provided for in this act. Said affidavit shall be recorded in the office of the register of deeds and shall b oprima facie proof of the amount of the principal unpaid on said.mortgage. Mortgages given prior to January 1st, nineteen hundred twelve, and on which the registry tax provided for in this act shall not be paid, shall remain under the present ad valorem system of taxation and shall be assessed and taxed under the present law.”

Section 10 is as follows:

“That class of credits other than the mortgages given prior to January first, nineteen hundred twelve, upon which this act imposes a specific tax shall be exempt from further general taxes under the laws of this State. All acts and parts of acts in contravention of the provisions of this act are hereby repealed.”

It is the claim of respondents that this act is at most only an act to provide for the collection of a specific tax on such instruments for State and county purposes, and in no way applies to the assessment of taxes in the city of Detroit for the general purposes of the municipal government, and that, having failed to provide for city, township, school district, village, and other municipal taxes, is void for want of uniformity of taxation, under Const, art. 10, § 3. We cannot agree with the claim that the act does not apply to the assessment of taxes for general purposes. We have quoted section 10, which provides that mortgages and land contracts upon which the act imposes a specific tax shall be “exempt from further general taxation under the laws of this State.” The history of the adoption of this act is a matter of common knowledge. It is well claimed by relator that mortgages and like instruments had been concealed from assessing officers by putting them in the names of nonresidents, withholding them from record, and other familiar means, and it was urged that if a special tax could be imposed upon these instruments when they were recorded, and their foreclosure made dependent upon their having been recorded, and the tax made sufficiently low in amount, there would be an inducement to disclose mortgages to the assessing officer, rather than hide them as theretofore. With this end in view, the act was passed, and the universal acceptation throughout the State is that mortgages recorded under its terms are then exempt from other taxation. We are of opinion that the phraseology of the act amply sustains this view. We think that the exemption is from all ad valorem, taxation.

An examination of the charter of the city of Detroit satisfies us that it does not give the common council power to tax any property other than that made taxable under the laws of the State for State purposes. The power of the common council to assess and collect taxes is given in section 59, chap. 7, of the charter, as follows:

“ Said council shall also have power * * * to assess, levy and collect taxes for the purposes of the corporation upon all property made taxable by the law for State purposes.”

Section 2, chap. 10, provides:

“The board of assessors shall, before the first day of April in each fiscal year, assess at its true cash value all the real and personal property subject to taxation by the laws of this State.”

Under the general scheme of taxation in force in the city of Detroit, it seems to us clear that nothing can be placed on. the rolls for taxation which cannot legally be taxed for State and county purposes. We conclude that these tax-paid mortgages and contracts are exempt from city taxation.

It is contended by counsel for respondents that this act is unconstitutional because the various provisions contained in section 2 provide for exemption from all taxation, recorded or otherwise, of mortgages and land contracts held by various educational, charitable, and religious societies, etc., his claim being that said exemptions made the scheme of taxation afforded by the act violate the constitutional rule of uniformity of taxation under article 10, § 4, of the Constitution. We cannot agree with this contention. While the provision respecting uniformity is new as relates to specific taxes, it has long existed with regard to ad valorem taxes, and the question whether or not any particular act providing for a specific tax offends against the uniformity rule can be answered by our decisions. In the early case of People v. Auditor General, 7 Mich., at page 90, it was said:

“ This provision of the Constitution (uniform rule of taxation) has no reference to the power to exempt, or to remit taxes; which is, and necessarily must be, to a great extent, left to the discretion of the legislature. Its design was to secure, to every portion of the State, and to every class of property taxed, a uniform rate — to secure equality, so that property in one quarter should not be taxed at a higher rate than in another, or the same kind taxed unequally. The legislature has the power of prescribing the subjects of taxation, and of exemption, but it cannot arbitrarily tax property according to locality, kind, or quality, without regard to value (Sedg. on Stat. 557), but in this respect it must act by uniform rules. But to exempt property, as is done in the case of church, school, or library property, or to remit taxes for any cause, has nothing to do with the uniformity of the rule of taxation.”

Walcott v. People, 17 Mich. 68-92; National Loan & Investment Co. v. City of Detroit, 136 Mich. 451 (99 N. W. 380). We refrain from quoting authorities outside of this State upon this question. The same reasons which impel the exemptions as to the property of such institutions would naturally apply to their obligations. The fact that their obligations would be exempt from taxation would be a great aid in making loans and negotiating their mortgages. The circuit judge in his opinion seems to claim a distinction between the treatment accorded obligations secured by mortgage under the first proviso and those secured by mortgage under the second. We cannot agree with him in this. Section 2 in its controlling, general terms at the beginning refers solely to mortgages recorded on or after January 1, 1912. No other description of mortgages is mentioned. The provisos in the section can only be understood as referring to, and limiting, the general terms previously used. The specific terms of the first proviso cannot be construed as referring to mortgages, no matter when recorded, when the language which it is intended to limit refers to mortgages recorded on or after January 1, 1912. It follows that the language near the bottom of the section, “ which such mortgage is recorded on or after the first day of January, nineteen hundred twelve,” is pure repetition and surplusage, adding nothing to, and deducting nothing from, the meaning of the section, which is that all obligations secured by mortgages recorded on or after January 1, 1912, shall pay a specific tax in lieu of ad valorem taxes, except that certain specified obligations recorded on or after that date shall not pay any tax. We are of opinion that no part of section 2 contravenes the provisions of section 4, art. 10, of the Constitution.

We cannot follow counsel for respondents in his criticism of section 6, which provides for bringing mortgages recorded prior to January 1, 1912, within the provisions ■of the act. What we have said as to uniformity of taxation applicable to section 2, applies here.

This brings us to the second question raised by respond- • ents, whether or not the relator can use the stocks owned by it in other Michigan corporations, which pay taxes in Michigan on their property, as an offset.

It is the claim of relator that, in so far as stocks in corporations are concerned, there can be no question that such stocks are exempt from taxation, and their value should be deducted from the taxable capital of relator. 1 Comp. Laws, § 3831, subd. 7:

“For the purposes of taxation, personal property shall include * * * (7) all shares in corporations organized under the laws of this State, when the property of such corporation is not exempt, or is not taxable to itself; or when the personal property is not taxed.”

In the construction of this section due consideration should be given to section 3834, which provides that all corporate property, except where some other provision is made by law, shall be assessed to the corporation, in the name of the corporation. Stroh v. City of Detroit, 131 Mich. 109 (90 N. W. 1029); Bacon v. Board of Tax Commissioners, 126 Mich. 22 (85 N. W. 307, 60. L. R. A. 321, 86 Am. St. Rep. 524); Thrall v. Guiney, 141 Mich. 392 (104 N. W. 646, 113 Am. St. Rep. 528). We think that relator is right in this claim.

It is claimed that the same rule should be applied to the stock of partnership associations, limited; that such associations are considered legal entities, existing independently and apart from ‘the members composing them, and are governed by the rules applicable to corporations, rather than by the rules applicable to unincorporated partnerships, citing Staver & Abbott Manfg. Co. v. Blake, 111 Mich. 282-287 (69 N. W. 508, 38 L. R. A. 798); Rouse, Hazard & Co. v. Cycle Co., 111 Mich. 251 (69 N. W. 511, 38 L. R. A. 794). Our present Constitution, in section 2, art. 12, like the former Constitution, provides that:

“ The term ‘ corporation’ as used in this article shall be construed to include all associations and joint stock companies having any of the powers or privileges of corporations, not possessed by individuals or partnerships.”

Stock and stockholders are recognized both in the Constitution and the statute.

It is further claimed by respondents that the investments of the relator in said limited partnership associations were unlawful and beyond its power to make, and the amount of its capital invested in said associations is taxable property. This point is, we think, ruled against the contention of respondents in Detroit Home & Day School v. City of Detroit, 76 Mich. 521 (43 N. W. 593, 6 L. R. A. 97), where it was held that, if any corporation misuses its funds, the remedy is not by the action of the assessing officers, who have no authority to punish it by taking away its exemption, but by direct proceedings to restrain and punish any corporate abuses. We are of opinion that the circuit court ruled correctly Jupón this branch of the case.

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

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


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    DETROIT TRUST CO. v. COMMON COUNCIL OF CITY OF DETROIT.
    Certiorari to Wayne; Hally, J.
    Submitted June 18, 1912.
    (Calendar No. 25,224.)
    Decided July 10, 1912.
    Mandamus by the Detroit Trust Company against the common council and assessors of the city of Detroit to compel respondents to deduct from relator’s assessed property the value of certain mortgages and other credits of relator. An order granting the writ is reviewed by respondents on certiorari.
    Affirmed.

      Walter Barlow (Richard I. Lawson, of counsel), for appellants.

      Miller, Smith, Paddock & Perry (Sidney T. Miller, of counsel), for appellee.
   Stone, J.

This casé was presented and argued with that of the Union Trust Co. v. Detroit Common Council, ante, 692 (137 N. W. 122). It relates to the question of tax-paid mortgages amounting to $848,707.49. The same question is presented, and is subject to the same rules as in the other case, and the action of the court below was the same.

The judgment of the circuit court is affirmed.

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


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    SCHEIBLE v. KLENK.
    Contracts — Building Contracts — Modifications.
    An allowance of a considerable sum for defective plastering and for delay claimed by the owner of premises that were undergoing repairs and alterations under a written contract, was properly denied by the trial court, upon evidence showing that the owner was dissatisfied with the plastering done, and made a new and distinct contract with the plasterer; also on a showing that the alleged delays were caused by the owner and his architect, and the contractor was not responsible for them.
    Appeal from Wayne; Donovan, J.
    Submitted June 8, 1911.
    (Docket No. 23.)
    Decided July 10, 1912.
    Rehearing denied December 18, 1912.
    Rill by Leo Scheible against William C. Klenk and others for the foreclosure of a mechanics’ lien. From a decree enforcing the lien, defendant owners appeal.
    Affirmed.

      Lucking, Emmons & Helfman and Harry L. Schellenberg, for complainant.

      May & Dingeman and Daniel P. Cassidy, for defendants.
   Moore, C. J.

Complainant’s bill is filed by the general contractor, Leo Scheible, and a cross-bill is filed by the subcontractors, Will & Goeltz, to foreclose lieás on property of William C. Klenk, known as the Lighthouse Inn. Mr. Scheible’s contract is dated June 29, 1907, and called for the construction by him of practically all of the building except the cement foundation and the brick chimneys. It is claimed by complainant that subsequently the plastering and steam fitting were awarded by the owner to other contractors. The plans and specifications were prepared by an architect, and the contract was in writing. The contract price was $11,200.

It is claimed by complainant that many changes were made on the verbal order of the architect, and that the extra cost of these extras was agreed upon at the time. These extras amounted to $1,549. In this case defendant claims there was defective construction, and asks damages because of it, and for delay in the completion of the contract, and also that an architect’s certificate is lacking. The trial judge handed down an opinion in which he reviewed these claims in detail, he allowed some reductions, and found against the defendant as to the others, and granted a decree awarding Mr. Scheible $3,540.88 and Will & Goeltz $585.90. From that decree an appeal was taken to this court by defendant, and the case was argued at length and submitted. Later, leave was granted to remand the case for the taking of further testimony. This was done, and the case was again passed upon by the trial judge. He expressed himself as confirmed in his former decree and affirmed it. The case has again been ably argued by counsel in this court.

The questions involved are not complicated. We quote from the brief of the appellant:

“The parties to this contract in due form determined in that instrument how their rights should be settled, not in a manner which would depend on conversations which might be imperfectly heard or incorrectly understood or the purport of which might be unintentionally colored, or the real meaning purposely distorted, but by written instrument capable of the closest and most exacting scrutiny, and determination by the court in the event of controversy. ■ As was said in a case of which we will directly call the court’s attention at length, this court said:
“‘While the contractor may rely upon what was actually approved under the contract, he is supposed to understand the speeifications and how the work should be performed as well as the superintendent, and as well as, if not better than, the owner; and he cannot be permitted to invoke the doctrine of estoppel where some of its elements are lacking, making it " a sword; and not a shield.” ’ [Boots V. Steinberg] 100 Mich. 137 [58 N. W. 657].
“ Should then a court he overready to depart from tne carefully prepared contract, and drift into the uncertainties of claimed modification ? * * *
In the case of Weggner v. Greenstine, 114 Mich. 310 [72 N. W. 170], this court refused to put aside the arbitration clause of the contract which was similar in character to the clause in the contract in this case, although the contractor claimed a waiver of the arbitration clause by reason of the owners going out and paying subcontractors, and in the face of the fact that the architect testified that the work had been done to his satisfaction, and had actually given his final certificate to the contractor. In the case at bar there is infinitely more reason why this principle of law should be adhered to than in the Weggner v. Greenstine Case. No waiver was claimed here of the provision in the contract that payments should be made only on the certificate of the architect.”

We think the contention of counsel is fairly answered by what actually occurred. The architect furnished thé following statement:

“ Sept. 29th, 1908.
“Mr. Wm. C. Klenk:
I herewith make the following report of your account with J. L. Scheible & Co., for work and material on club
house at Lighthouse Inn.
“ ‘ General contract for building----$11,300 00
Allowed extras as checked on bill of
July 13.......................... 85147
$13,051 47
Cash as per certificates.............. 6,700 00
$5,351 47
April 6, certificate paid by note...... 2,000 00
$3,351 47
Aug. 22, bill for beam ceiling in barroom.......-...................... 258 00
$3,609 47 $3,609 47'

“ The following are the further credits due you for inferior work, omission from that called for in plans and specifications, together with $10.00 for overrun of time limit as per contract:

“ ‘6 in. clapboarding used instead of 5
in. as specified-................... $138 80
1 plumbing stack omitted........... 20 00
Dumb waiter....................... 75 00
2 flights outside cellar stairs......... 10 00
Counter door between hall and barroom ..................-.......... 5 00
Gas, 6 lights, first and second story-
veranda...............-.......--- 9 00
Gas piping undersize and without
proper drip...............-....... 7EÍ 00
Credit due for defective plastering. - 732 00
Time forfeit, Oct. 30, ’07, to Jan. 1,
’08, 63 days....................... 620 00
Time forfeit, 12-31 to 5-1-08, 121 days. 1,210 00
$2,894 80
2,894 80 $2,894 80
Amount due to J. L. Scheible & Co............ $714 67 ’ ”

It will be seen that by this statement of the architect a balance was shown due to Mr. Scheible of $3,609.47, less deductions for inferior work and for overrun of time in which .to complete the work charged at the rate of $10 a day. The architect after making these deductions found a balance due the contractor of $714.67. Included in these deductions made by the architect were the items of $732 for defective plastering, and $1,830 for overrun of time.

The trial judge found that neither of these allowances should be made, for the reason that, as to the plastering, Mr. Klenk was not content to have the plastering done according to the contract, but insisted upon making an entirely different contract with the plasterer after the lathing was done.

The trial judge also found that the delays in the completion of the contract were caused by the owner and the architect, and that the complainant was not responsible for them. It would profit no one to go into detail about the facts disclosed by a printed record of more than 600 pages. We are satisfied from a careful reading of the record, aided by the arguments of counsel, that the findings of the trial judge are abundantly sustained by the weight of the evidence.

With these two items eliminated, the decree of the trial judge is approximately the same as the balance shown by the architect’s statement. We are satisfied that the decree is just, and it is affirmed, with costs of both courts.

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


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    SIELAFF v. WOODRUFF.
    Execution — Sale—Redemption—Equity.
    A demurrer to complainant’s bill to redeem from an execution sale of real property was rightly sustained where the pleading charged no fraud or inequitable conduct, and it did not appear from its averments that an undue proportion of the real property was sold to satisfy the indebtedness, complainant claiming that he was ill and unable to secure funds or attend to business
    Appeal from Wayne; Codd, J.
    Submitted June 18, 1912.
    (Docket No. 145.)
    Decided July 10, 1912.
    Bill by Emil Sielaff against Ari E. Woodruff to redeem from a sale on execution of certain land. From an order sustaining a demurrer to complainant’s bill, he appeals.
    Affirmed.

      George W. Coomer (John BougMon, of counsel), for complainant.

      Frank W. Atkinson, for defendant.
   Moore, C. J.

This bill of complaint is filed for the purpose of allowing the complainant an opportunity to redeem from a sale of land made by a sheriff. It recites, in substance, that complainant was the owner of 20 acres of land worth $1,000. That on or about the 16th day of March, A. D. 1908, Charles Sielaff and Louisa Sielaff, as defendants, obtained against complainant a judgment in the circuit court for the county of Wayne for the sum of about $78. That an execution was issued and levied upon said land, and that the sheriff sold on the 6th day of June, A. D. 1908, said premises to Charles Sielaff and Louisa Sielaff for the sum of $92.32.

“ That your orator was severely injured in a collision with an electric car in the city of Detroit in said county on or about the 30th day of November, 1909, and from the effects of such injury he has not recovered sufficiently to attend to any business matters whatever, and in fact such injuries have been growing more aggravated, thereby rendering your orator so weak physically that for the past two months and upwards he has been unable to leave his home for a distance of more than a couple of miles; that during such time the wife of your orator and a son, a mere lad, have been the principal persons to attend the farm and look after the business of your orator.
“6. That owing to the physical infirmities of your orator, and his inability to perform manual labor so as to render his farm as productive as it ought to have been, thereby affording your orator sufficient means wherewith to meet his obligations, and particularly to pay the judgment in question and redeem the land. hereinbefore described, it became necessary for your orator to negotiate a loan of money with which to meet and pay such pressing obligations; that, owing to the infirm physical condition of your orator and his inability to leave his home, the duty of loaning money devolved upon the wife of your orator; that about one month ago, and, as your orator believed, in sufficient time to redeem his said land from said sale, a loan of sufficient money to redeem from such sale was secured, and your orator’s wife was instructed by your orator to go to his attorney, George W. Coomer, and have him ascertain the amount of money necessary to redeem from said sale, and, upon his attorney furnishing the information of the amount of money required for such redemption, your orator’s wife was told by said attorney that in the meantime the said Charles Sielaff and Louisa Sielaff had obtained a sheriff’s deed, and that it was too late to redeem said land.
“ 7. That your orator is informed and believes, and so charges the truth to be, that the said Charles Sielaff and Louisa Sielaff, soon after obtaining said sheriff’s deed, immediately conveyed all their interest acquired by them under said deed to their attorney, Ari E. Woodruff, for a consideration of $1, both of said deeds having been recorded in the office of the register of deeds for said Wayne county.
“8. That your orator is willing to pay the amount of said judgment, interest, and all accrued costs upon being allowed to redeem the land hereinbefore described, which he has been prevented from doing by circumstances beyond his control.
“'9. That the failure of your orator to redeem said land within the time prescribed by law has not been due to ignorance or negligence on his part, but solely to his inability to raise the money necessary to do so, due wholly to his physical infirmities hereinbefore described.” ■

The prayer was for leave to redeem from the sale. A demurrer was interposed to the bill of complaint and was sustained, and the case is brought here for review.

There is no claim in the bill of complaint of fraud, or conspiracy or deception, nor does it appear that the land was so situated that an unnecessary amount of land was sold to satisfy the execution. Upon the averments of the bill, the court below did right to sustain the demurrer, but, if it is true that land worth $1,000 was sold to satisfy an execution calling for less than $100, so great a hardship has been done that we are constrained to allow complainant 30 days in which to amend his bill of complaint, so as to state a case for relief if the facts will warrant it.

The defendant will recover costs of this court.

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