text:
    BANK OF ITALY v. WELSH.

      1. Garnishment — Statutory Proceeding.
    Garnishment proceedings are special and statutory, giving a harsh and peculiar remedy, requiring the provisions of the statute to be strictly followed.
    2. Same — Disclosure Before Jurisdiction Obtained of No Force.
    A disclosure in garnishment before jurisdiction in the principal case has been obtained is of no force, even though the principal defendant subsequently appear.
    3. Same — Dismissal—Jurisdiction.
    Garnishment proceedings were properly dismissed where the statutory period expired without service upon the principal defendant, and whether the principal case survived resulting later in a valid judgment against the principal defendant is immaterial.
    Error to Wayne; Webster (Clyde I,), J.
    Submitted January 21, 1921.
    (Docket No. 58.)
    Decided March 30, 1921.
    Garnishment proceedings by the Bank of Italy against Charles F. Welsh and others, garnishee defendants of E. G. Rideout and another. From orders denying plaintiff’s motion for summary judgment, and granting' defendants’ motion to quash, plaintiff brings error.
    Affirmed.

      Rood & Visscher, for appellant.

      Herbert J. Newman, for appellees.
   Steere, C. J.

Appellant seeks reversal of two orders of the Wayne county circuit court, made on motions argued and submitted together, denying plaintiff’s motion for summary judgment against the above-named garnishee defendants and granting their motions for an order to quash the writ of garnishment, releasing them from all liability thereunder. The principal action to which the involved garnishment proceedings litigated here are auxiliary was commenced in the circuit court of Wayne county by summons issued January 8, 1920, and made returnable April 6, 1920. This summons was not served, nor returned until May 28, 1920, on which date the sheriff of Wayne county made return of nonservice in the usual form because of inability to find the defendant after diligent search and inquiry. No alias summons was ever issued in the case.

Plaintiff is a foreign corporation, organized under the laws of California. Elbridge G. Rideout, the principal defendant, was also a nonresident of this State. He died in the city of New York on January 28, 1920, proceedings to administer his estate being thereafter taken in the State of New Jersey. His nonresidence when action was begun was known to plaintiff’s counsel who made and filed an affidavit of garnishment January 10, 1920, concluding, “and the affiant further says that the said E. G. Rideout is a nonresident of the State of Michigan,” a provision not required by the general garnishment statute and evidently inserted to bring the proceedings under section 13150 of the Compiled Laws of 1915, relating to the garnishment proceedings where the principal defendant is a nonresident. A declaration in assumpsit was filed on January 9, 1920, with an attached copy of a note for $900 given by Rideout to plaintiff, dated Los Angeles, California, July 10, 1914, upon which $400 was credited, with affidavit of plaintiff’s counsel, dated January 9, 1920, stating that the “annexed account” was a true statement between the parties, the indebtedness of defendant to plaintiff being then $703.50 as near as he could estimate the same, etc. Pursuant to the affidavit therefor, a writ of garnishment was issued and filed on January 13, 1920, with a return of service on the above-named garnishee defendants.

On February 28, 1920, they filed disclosure of an indebtedness of $1,962.49 to the principal defendant, and an affidavit of Gaylord N. Bebout, stating that he together with the other garnishee defendants Welsh and Kahn constituted a firm of attorneys in Detroit, and as such had represented the interests of said defendant Rideout in said city; that affiant was informed and believed said Rideout had died in a hospital in the city of New York on January 28, 1920, and no service in this cause had ever been made on him within the State of Michigan during his lifetime.

On March 27,1920, they filed an amended disclosure denying indebtedness, setting out in apparent explanation of the former disclosure, that when served with said writ they were acting as agents and attorneys for the principal defendant, and as such custodians of his funds were privileged from disclosing any facts in relation thereto coming to their knowledge in that capacity and, otherwise than in such capacity, they had no property or money of said defendant in their possession or under their control. No authority is cited to sustain this doubtful feature of their defense. In 2 Wade on Attachments and Garnishments, § 349, it is said with citation of decisions:

“The ease of an attorney who has collected money for the defendant, and has it in possession subject to the latter’s right of action therefor on demand and failure to pay, may be held as garnishee if properly served. But this is for the reason that he occupies the position of debtor to the defendant in attachment.”

Nothing further was done in the case until April 6, 1920, when plaintiff filed and served a demand for examination of the garnishee defendants before a circuit court commissioner on April 9, 1920. Oin that day they did not appear for such examination, of which, fact the commissioner made return on April 10, 1920, stating that “said garnishees suffered default.” On the same day plaintiff’s counsel entered their default and served on them notice thereof.

On April 13,1920, Douglas A. Graham, an employee connected with the office of plaintiff’s counsel, filed an “appearance of defendant and notice” as follows:

“Now comes Douglas A. Graham, administrator of the estate of Elbridge G. Rideout, who died after the commencement of the above entitled cause, and in behalf of the estate of the said Elbridge G. Rideout, demand's a trial in the matter set forth in the plaintiff’s declaration.
“Douglas A. Graham,
“837 Dime Bank Bldg.,
“Detroit, Michigan.”

On May 7, 1920, he filed another “appearance of defendant and notice” as follows:

“Now comes Douglas A. Graham, administrator of the estate of Elbridge G. Rideout, duly appointed by the probate court of Wayne county, Michigan, and enters appearance in the said cause, for and in behalf of the said defendant, and shows to the court that the said Elbridge G. Rideout died at the city of New York on the 28th day of January, A. D. 1920.
“Douglas A. Graham,
“Administrator of the estate of Elbridge G. Rideout.”

On May 10, 1920, entry of judgment was filed and journal entry made as follows:

“Entry of Judgment (filed May 10, 1920). At a session of the circuit court held in the county building of Wayne county the 7th day of May, A. D. 1920. Present: The Honorable Adolph F. Marschner, circuit judge.
“Upon reading the declaration in said cause, and upon taking proofs in open court, the said defendant having appeared and pleaded, by his administrator, Douglas A. Graham, it is hereby
“Ordered that judgment be entered against the said defendant in the amount of ($703.33) seven hundred and three dollars and thirty-three cents damages, plus twenty-two dollars ($22.00) costs, and that the plaintiff have execution therefor.
“Adolph F. Marschner,
“Circuit Judge.”
“Journal Entry (Filed May 10, 1920). Upon reading the declaration in said cause, and upon taking proofs in open court, the said defendant having appeared and pleaded by his administrator, Douglas A. Graham, it is hereby ordered that judgment be entered against the said defendant in the amount of seven hundred three ($703.33) dollars and thirty-three cents damages, plus twenty-two ($22.00) dollars costs, and that plaintiff have execution therefor.
(Signed at the end of the day’s entries.)
“Adolph F. Marschner,
“Presiding Judge.”

The “said defendant” against whom judgment ran was, as stated in the præcipe, summons, declaration and all other proceedings in the case so far as the printed record discloses, E. G. Rideout, who died unserved with process over three months before the judgment was rendered against him.

On May 18, 1920, affidavit of regularity was filed in the garnishment proceedings, and a motion for judgment against the garnishee defendants was filed with notice for hearing said motion on May 22, 1920, duly served upon them. On May 22, 1920, they filed a motion for dismissal of the garnishment and their release as garnishees, followed by a “motion to quash suit,” filed May 26, 1920. After hearing the motions, argued together, the court made and entered orders on July 6, 1920, denying plaintiff’s motion for judgment and granting defendants’ holding that the ancillary proceeding in garnishment had abated because no service of process or notice was made upon the principal defendant during hi§ lifetime, nor upon his estate, within 60 days from the time of service of process on the garnishee defendants in compliance with section 13150, 3 Comp. Laws 1915, as construed in Axtell v. Gibbs, 52 Mich. 640, supported by Iron Cliffs Co. v. Lahais, 52 Mich. 394.

Section 13150, relating to “proceedings against nonresidents,” has been upon our statute books since 1861. So far as material here it provides:

“If the plaintiff, in addition to the allegations hereinbefore required to be contained in the affidavit for the writ of garnishment, shall set forth in such affidavit that the principal defendant is a nonresident of the county or State where the suit is commenced, * * * the principal writ or declaration and affidavit may be filed of the day of issue, and the writ of garnishment may be served as in ordinary cases; and within sixty days after such service the plaintiff shall cause to be delivered to such nonresident defendant * * * a true copy of the principal writ or declaration, affidavit and writ of garnishment with return of service thereon, and with a written or printed notice attached,” etc.

Iron Cliffs Co. v. Lahais, supra, states the often repeated rule in this jurisdiction that garnishment proceedings are special and statutory, giving a harsh and peculiar remedy requiring the provisions of the statute to be strictly followed, and holds that a disclosure in garnishment before jurisdiction in the principal case has been obtained is of no force, even though the principal defendant subsequently appear. It is argued for plaintiff that the Iron Cliffs Case is not analogous nor controlling here, because it involved the validity of proceedings in justice’s court. We are unable to recognize the force of this distinction to the extent claimed; but passing to the Axtell Case, supra, which involved ancillary garnishment proceedings in a case begun against a nonresident in circuit court under the same statute as here, we find that in the principal .case, separately disposed of by an immediately preceding opinion, it was held that under the facts an alias summons could be treated as a new writ’ for a new suit if the first suit went down, and the process was not void as against the principal defendant because the return to the original summons did not furnish a proper basis for it, and, referring to the principal case, it was said in the opinion relative to the dependent garnishment case:

“The circuit judge was quite right in dismissing the garnishment proceeding when the plaintiff had failed to secure service upon the principal defendant within the statutory period. Noble v. Bourke, 44 Mich. 194. Whatever the plaintiff might do to keep the suit against the principal defendant alive for the purpose of a personal judgment, did not concern the garnishee; the proceeding against him was purely statutory, and his hands were tied and his action restrained for the time only that the statute provided for such service on the principal debtor as was necessary to enable the plaintiff to reach the credits and effects in the hands of the garnishee.”

Plaintiff’s counsel point out as an adequate distinction that in the Axtell Case no judgment had been obtained against the principal defendant when the garnishment proceedings were quashed, and it was not known there ever would be, while in the instant case the order of dismissal was made after judgment, and in that connection say:

“The decision in Axtell v. Gibbs and Iron Cliffs Co. v. Lahais were made at a time when garnishment proceedings in general were being given a strict construction, entirely different from the construction that has been given for the past twenty-five years.”

The view expressed as to the nature of the remedy and rules of construction applied in those cases have since then been recognized as the law in this State from time to time as occasion arose, even as late as the decision in W. H. Warner Coal Co. v. Nelson, 204 Mich. 317, wherein it is said:

“In considering the question here involved we must take into consideration that the proceeding in garnishment is special and statutory, affording a harsh remedy, and that one pursuing it must bring himself within the statute and follow its mandate”; with citation of cases, including Iron Cliffs Co. v. Lahais, supra.

Vide, also,-Michigan cases cited to the concluding sentence of section 8 in Rood on Garnishments.

Whether the principal case survived, and Graham’s appearance as administrator after the 60 days’ statutory time for service had expired resulted in a valid judgment against the deceased “said defendant” or his estate did not, as held in the Axtell Case, concern the garnishees. When the statutory period expired without service their hands were no longer tied. During the last two-thirds of that period death rendered it impossible for the principal defendant to appear or be served. Within the statutory period no appearance was entered by or service made upon any representative of the estate.

The judgment is affirmed.

Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. Moore and Brooke, JJ., did not sit.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    KINGSNORTH v. BAKER.
    1. Ejectment — Right to Maintain by Vendee in Land Contract Entitled to Possession.
    One entitled to possession of land under an executory land contract may maintain ejectment, since the action may be used not only, to try titles, but also to determine the right of possession.
    2. Appeal and Error — Objection—Form: of Verdict.
    Objection to the form of the verdict should be made in the trial court, but where not so done, and where no prejudice by reason thereof could result to defendant, the verdict, if necessary, may be corrected in this court.
    3. Same — Trial—Irregularity in Submission of Special Questions — Objection.
    Where special questions submitted to the jury by plaintiff's counsel were not first submitted to defendant’s counsel for examination, and, although counsel objected thereto, he did not suggest to the trial court that he was taken by surprise, that he wanted more time to consider them, that he wanted to discuss them with the court or jury or that they were improper, and the record shows that said questions and answers might have been eliminated without affecting the general verdict, said irregularity in their submission will not be considered in this court.
    Error to Ottawa; Cross (Orien S.), J.
    Submitted January 12, 1921.
    (Docket No. 89.)
    Decided March 30, 1921.
    Ejectment by Grace Kingsnorth against Hendrick Baker. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Smedley & Unset, for appellant.

      Thomas N. Robinson, for appellee.
   Moore, J.

This is an action in ejectment. On the 6th day of July, 1917, the parties to this litigation entered into a land contract for the sale of the property in question to plaintiff, for a consideration of $925, $100 to be paid on the date of the execution of the contract and $24 to be paid quarterly. The land contract was written on a blank form in common use. Mrs. Kings-north moved to Rock Island, Illinois, and during part of the summer of 1919 she rented the premises to Mrs. Hanchett of Chicago, who at the end of the season sent the plaintiff the key to the house.

In September, 1919, the plaintiff received the following :

“Mrs. J. B. Kingsnorth :
“I received your $8.00 for rent, but you do not do as you said you would about the $10.00 a week. You are so much behind and I went to a real estate man and he said to move right in, which I did, although I had no key. So your place is gone back to me as I foreclosed on you. I can see on all sides you do not do right.
“From Hendrick Baker.”

The plaintiff stated that this was the first knowledge she had that defendant meant to forfeit the contract, and that at this time she had made all the payments the contract called for or had agreed upon a settlement with defendant of all that was due under the terms of the contract. She had several interviews with the defendant, but as she was unable then to come to any agreement with him, on the 9th day of October, 1919, she commenced this ejectment suit, filing a declaration which she claims complies with the provisions of sections 13174 and 13177, 3 Comp. Laws 1915.

The defendant pleaded the general issue and gave notice in substance:

(1) That he repossessed himself of the premises for the reason that plaintiff had violated the terms of the contract.

(2) That he took possession of said premises by the express consent of the plaintiff given July 1, 1919.

Objection was made to the admission of the contract in evidence. A motion was made for a directed verdict. The case was submitted to the jury who returned a verdict in favor of the plaintiff. A motion was made for a new trial, which motion was overruled. The case is brought here by writ of error.

Counsel discuss the assignments of error under 11 heads which really revolve around one pivotal question, to wit, If the plaintiff has any remedy upon this record, may she assert it by means of an ejectment suit? Counsel for the appellant insist she cannot.

We cannot state counsel’s position better than to make two or three quotations from the brief as follows:

“The only title plaintiff claims is by virtue of an executory land contract. An equitable title, at most, which may, if the terms of the land contract are performed, give her the right to demand the execution of a deed of the fee to the property from defendant. It is admitted the legal title to the fee is in defendant. *, * *
“Plaintiff cannot recover because she has only the equitable title and defendant has the legal title. The legal title is the only title involved in an action of ejectment.”

Counsel cite many authorities, many of them Michigan cases, but a reference, to them will show them easily distinguishable'from the instant case.

In 9 R. C. L. at p. 827 it is said:

“Definition, Nature and Purpose of Ejectment. In a general way it may be said that ejectment is a form of action in which the right of possession to corporeal hereditaments may be tried and the possession obtained. As defined by the statutes of some States, it is ‘an action to recover the immediate possession of real property.’ At common-law ejectment was a purely possessory action, and even as modified by statute, and though based upon title, it is still essentially of that nature, and is confined to cases where the claimant has the possessory title; that is to say, a right of entry upon the lands.”

Later the same authority says the action is used not merely to recover the possession of lands, but to settle the title and establish the right of property.

In Michigan Cent. R. Co. v. McNaughton, 45 Mich, at p. 88, Justice Graves, speaking for.the court, discusses the history of the action of ejectment in an illuminating way, showing the action may be used not only to try titles, but also to determine who has the right of possession.

The language of Chief Justice Grant in Olin v. Henderson, 120 Mich. 149, meets many of the objections raised by counsel in the instant case. We quote:

“It is urged that plaintiffs showed no title in fee, and therefore could not recover; the precise claim being that the contract under which plaintiff claims title does not convey the fee, and that having claimed title in fee, they have failed to make their case. To support this proposition counsel cites Buell v. Irwin, 24 Mich. 145; Gamble v. Ross, 88 Mich. 315, and several other authorities. We cannot take the time to analyze those cases. An examination will show that they do not apply to this case. The contract contemplated and permitted possession by the. vendees. The trial was evidently conducted upon the understanding that the plaintiffs were in possession under the contract, which evidently gave them the right of possession. Ejectment is a possessory action, and a vendee in such contract, in possession under it, is entitled to maintain ejectment against one who has ousted him from the land. Covert v. Morrison, 49 Mich. 135. A vendor in a land contract giving the vendee right of possession cannot maintain ejectment until he has in some manner terminated the .contract relation. Michigan Land & Iron Co. v. Thoney, 89 Mich. 226. * * *
“Section 7790 [2 How. Stat. (1st Ed.)] provides that in order to recover the plaintiff must show ‘a valid subsisting interest in the premises claimed, and a right to recover the possession thereof, or of some share, interest or portion thereof.’ While it is. true that the plaintiffs had not the legal title, and therefore did not show title in fee, as alleged in the declaration, yet, under the statute in question, prescribing the contents of the declaration, there is only one requirement, if the statute is strictly followed, under which plaintiffs could bring their action, and that is that they claimed in fee. While plaintiffs might with propriety have fully set out the contract, and possession under it, we are cited to no authorities requiring this to be done. Defendant is not prejudiced or misled. The point is purely technical. We are not, therefore, disposed to reverse the case upon this ground.”

A late case holding that one entitled to the possession of land may maintain ejectment is Moody v. Macomber, 159 Mich. 657.

The trial judge charged the jury as follows:

“1. Gentlemen of the Jury: This action is brought by plaintiff Grace Kingsnorth against the defendant Hendrick Baker to recover possession of property. It is the claim of the plaintiff that she bought the property in question of the defendant on a land contract and that she has fully paid all the payments required by the contract; that he has taken possession of the property, refuses to let the plaintiff take possession and she brings this action to recover the possession.
“2. The defendant claims that the plaintiff failed to make the payments as required by the contract and that he declared the contract forfeited and took possession of the property and is now entitled to the possession of the same, and does not hold the same against the plaintiff unlawfully.
“3. Those are the claims of the parties in this case, and in stating their claims to you I do not state which of the claims are true, for that is the question for you to decide.
_ “The burden of proof in this case is upon the plaintiff and before the plaintiff can recover she must prove her case and all the essential elements thereof by a preponderance of the evidence.”

Each of the parties produced evidence tending to support their respective qlaims. The testimony was in sharp conflict. To illustrate: The plaintiff produced a small book in which she testified the defendant made entries of payments as she made them, and that she saw him make the entries. She also produced checks on a bank drawn by her that purported to be indorsed by the defendant. The defendant testified that he did not make some of the entries in the book and that he did not indorse the checks. The defendant’s banker was produced, who testified he had seen defendant write many times, and was familiar with his handwriting, and that the entries in the book and the indorsements on the checks were all in the handwriting ©f defendant.

In' the entry of the verdict and judgment appears the following:

“That the said Hendrick Baker is guilty of unlawfully withholding from the said Grace Kingsnorth the premises * * * and that the said Grace Kingsnorth is well entitled to hold the same in fee under the said land contract.”

It is now said that as the plaintiff admitted she held only under the land contract and that defendant had the legal title, that including the words “in fee” in the verdict constitutes reversible error. This claim is made for the first time in this court. No objection was made to the form of the verdict in the court below and when the verdict and judgment are read as an entirety we do not think anybody would be misled, but if necessary the word “in fee” might be eliminated.

At the close of the charge the following occurred:

“In addition to your regular verdict you will also be required to answer these two questions and you will answer these questions by writing the word ‘yes’ or the word ‘no,’ as you determine the evidence to be, on the line where it is marked ‘Answer,’ and the foreman of the jury will sign it and hand it in with the regular verdict.
“You may swear an officer.
“Mr. Linsey: I want to call the court’s attention to the fact that the counsel for plaintiff did not show me the special questions; I did not know they were to be handed up until they were submitted to the jury.
“The Court: I supposed you had seen a copy of them.
“Mr. Limey: No, I didn’t know it until just now, so I take an exception to submitting the special questions to the jury.”

Counsel now say this was reversible error. He did not suggest to the trial court that he was taken by surprise or that he wanted more time to consider the special questions, or that he wanted to discuss them to the court or the jury, nor did he claim they were improper questions to be submitted to the jury. The most cursory examination of the record will show that the special questions and answers might be eliminated without affecting the general verdict.

We have examined all the other assignments of error but do not think it necessary to discuss them. A careful reading of the entire record does not satisfy us that any injustice has been done.

The judgment is affirmed, with costs to the appellee.

Steere, C. J., and Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    PEOPLE v. POTTER.
    1. Venue — Change of Venue — Showing—Sufficiency.
    In a prosecution for arson, the denial of the motion for a change of venue, held, justified by the record, there being no sufficient showing of ill feeling or prejudice against defendant.
    2. Criminal Law — Arson—Evidence—Admissions.
    The admission of testimony by an inspector of the State fire marshal’s department, in a prosecution for arson, as to statements made to him by defendant admitting that he had made false entries in his books to make it appear that his loss by the fire was greater than it really was, held, not reversible error.
    3. Same — Trial—Instructions.
    Where there was testimony that the fire was first discovered about 1 o’clock in the! morning, an instruction by the trial judge that it was undisputed that the mill was burned about 1 o’clock in the nighttime,.held, not reversible error, although it was shown that the alarm was turned in at 1:55, the fire chief testifying that he responded at once and when he got there the fire' was all through the mill.
    4. Same — Trial—Argument of Counsel.
    An assignment of error that the prosecuting officer, in his use of a blackboard in his argument to the jury, upon which figures were placed, used one large item twice, and thereby the jury were misled, is not well taken, said blackboard being used in the presence of defendant and his counsel, and the accuracy of the figures thereon being open to their criticism.
    5. Same — Circumstantial Evidence — Inferences.
    Although the evidence was largely.circumstantial, held, that the inference of guilt therefrom could be fairly drawn.
    6. Same — Trial—Argument of Counsel.
    The argument of counsel for the people, when proper allowances are made for the excitement growing out of the trial and the arguments of opposing counsel, held, not reversible error.
    7. Appeal and Error — Miscarriage op Justice — Statutes.
    Where a careful reading of the record does not satisfy that the verdict has resulted in a miscarriage of justice, it should not he set aside, under 3 Comp. Haws 1915, § 14565.
    Exceptions, before judgment from St. Joseph; Knowlen (Frederick W.), J.
    Submitted January 13, 1921.
    (Docket No. 125.)
    Decided March 30, 1921.
    Arthur W. Potter was convicted of setting fire to and burning a flour mill.
    Affirmed.

      George E. Arnold, for appellant.

      Merlin Wiley, Attorney General, Dwight M. Britton, Prosecuting Attorney, and Theo. T. Jacobs, Assistant Prosecuting Attorney, for the people.
   Moore, J.

The defendant was convicted of setting fire to and burning a flour mill belonging to the Three Rivers Milling Company which he had leased from that company. The case is here on exceptions before sentence.

Supreme Court Rule No. 40 provides in part:

“The brief of a party bringing a cause into this court shall contain a clear and concise statement of the facts of the case, distinct from argument, and of the errors upon which he relies, the questions involved, and the manner in which they are raised.”

See People v. Boyd, 151 Mich. 577, and Greenleaf v. Lambert, 192 Mich. 411.

The failure of counsel for the appellant to heed the provisions of the rule has put upon this court a good deal of work it ought not to be required to do.

The case of the people depended almost wholly upon circumstantial evidence. Eighteen witnesses were sworn on the part of the people. Their testimony fills more than 340 pages of the printed record. No witnesses were sworn on behalf of the defendant. After the verdict of the jury was rendered a motion was made for a new trial. This motion was overruled.

The first assignment of ‘error urged is that the court should have granted a change of venue because of the public feeling existing in St. Joseph county against the defendant.

In stating his reasons for overruling the motion for a rehearing the trial judge said as to this feature of the case:

“No difficulty was experienced in quickly obtaining an apparently competent and unprejudiced jury. Very few jurors had any knowledge of the case, very few had ever heard of the case, except that the term calendar carried the case, and very few had any opinion of any kind in respect to the case. Additional jurors brought in were at the request of the respondent, summoned from townships away from the city of Three Rivers, where the alleged offense was committed. Nothing appeared during the trial indicating or suggesting that there was any merit in the motion for a change of venue.”

We think the record fully bears out what was said by the trial judge. We have been unable to learn from it that defendant exhausted his peremptory challenges. This assignment of error has no merit.

Counsel say the court erred in its ruling in admitting some of the testimony of Mr. Armstrong, an inspector in the State fire marshal’s department, calling attention to page 262 of the record. It may be well to quote:

“Q. Now tell the jury any other statements, if any, any conversations had with Mr. Potter as to the amount of his loss?
“A. Afterwards when he presented the books, he told what he had done.
“Q. What did he say he had done?
“A. Made false entries in the books on rye and wheat, corn and different other things, clover seed and timothy seed; I think about fifteen bags of clover and timothy seed, weighed somewhere around 2,400, that he had shipped out the day' before the fire, that he had also on his invoice and balanced up his books and came out in round numbers about $12,000, that his actual loss would have been.,
“Q. I will ask you whether or not he signed a statement to that effect?
“A. He did.
“Q. Just give the jury the conversation, what was • said; I refer now to this last time when he made the statement of $12,000.
“Mr. Arnold: If your honor please, I would object to that. It would appear all this, was put in a written statement, and the statement is the best evidence.
“Mr. Jacobs: Your honor, I do not understand that it appears that it was put in a written statement; what we want to know is what he said at the time.
“Mr. Arnold: A written statement was made.
“The Court: If it was put into a written statement and signed by Mr. Potter—
“Mr. Jacobs: It don’t appear that it was in a written statement.
“The Court: I don’t see why what was said should not be given even if there was a written statement made.
“Q. Just tell what was said at that time?
“A. He said that he had — he and his wife had added in these extra amounts of wheat and rye and corn, and buckwheat flour, clover and timothy seeds,, in order to collect the full amount of his policies, being $25,000.
“Q. What, if anything, did he say at ftiat conversa- . tion as to the amount of his loss, the actual amount of his loss?
“A. He said the actual amount of his loss was about $12,000 — what the books showed afterward.”

[We do not find any reversible error in this ruling. In this connection we think it may be well to quote more of the testimony of this witness:

“A. In conversation with Mr. Potter he told me that his cash book, ledger, cancelled checks and check stubs were destroyed in the fire. I told Mr. Potter if all these check stubs, checks, ledger and cash book were destroyed in that fire there would be some evidence left; I told him I was going over there and dig down under the office in the ruins and see what I could find. * * *
“Q. What was the conversation then, if any, between you and Mr. Potter?
“A. I told Mr. Potter that I had been over to the ruins and dug through the ashes and cinders and found no evidence of any check stubs or books, but I could find everything else. I said: ‘Mr. Potter, you are guilty of this crime, and you know it, and I want you to produce every book that you have got, every paper, cancelled check, check stubs or anything that will give us any light on this subject. I want you to go home tonight and I want you to think it over, talk'it over with your wife, and tomorrow morning I want you to come down here and bring every book that you have got, paper, cancelled check and check stubs with you.’
“Q. Did Mr. Potter make any reply to that statement?
“A. He made no reply, he went out of the room and I said goodnight to him. The next morning about 8:30 he came back with a market basket, two folding handles on it, covered over nicely with newspapers, brought it in and set it on the table, and he says: ‘There is your books.’ We took them out, looked at them, opened up his grain book, and I said: ‘Now, just show where you made false entries in the book,’ and he turned them over leaf after leaf and showed us where he entered the rye, corn and oats — * * *
“Q. Niow this conversation you have told the jury about that happened the night before he brought in the market basket full of records, you say he did not answer you when you told him he was guilty?
“A. No, he did not say a word.
“Q. What did he do, how did he look?
“A. Just slid down in his chair this way (illustrating) looking down. * * *
“Q. Now, Mr. Armstrong, something was said last night about a kerosene soaked bag that you found in the basement, will you tell the jury who was present when you found it?
“A. Mr. Rommell and Mr. Berger. * * *
“Q. Tell where you found the sack?
“A. Found it in the corner of the mill under the cinders and debris. * * *
“Q. What was the character of that debris?
“A. Why, charcoal and grain, sticks and nails, paper and everything that goes with a fire.
“Q. Now just describe to the jury the condition of that sack you found there that day?
“A. Partially burned, saturated with kerosene.
“Q. To what extent was it saturated?
“A. Why, it was wet so that you take hold of it, you could see it on your fingers.”

We now quote from the brief of counsel:

“It would have been proper for the court to have charged that ‘the undisputed testimony in the case is that the mill was burned and destroyed by fire in the nighttime of the 21st day of January, last’; but the added portion ‘that is to say, about 1 o’clock in said nighttime’ was a misstatement of the facts, and such a fact as was very prejudicial to respondent.
“The exact minute of receiving the alarm was fixed by the fire chief at 1:55, while it was true that some witnesses without fixing the time simply said some time between 1 and 2 o’clock, and the important feature of this statement of an uncontroverted fact to the jury was that they were given as the law that it was about 1 o’clock and the testimony as to it being about 2 o’clock not to be considered.”

This contention overlooks the testimony of the witnesses who first discovered the' fire, that it was about 1 o’clock when they discovered it. It also overlooks the testimony of the fire chief that he at once responded to the call,'and that when he got to the fire if was all through the mill and was coming out through the upper windows and the roof. We might add that when the judge made this statement counsel for the defendant, who heard it, made no suggestion to the court that he had made a mistake. This was not reversible error.

In his argument to the jury the prosecuting officer made use of a blackboard upon which figures were placed, which he claimed were justified by the evidence. It is now claimed one large item appeared twice upon the blackboard, and that the jury were misled, and for that reason the case should be reversed. This blackboard was used in the. presence of the defendant and his counsel, and the figures appearing thereon were open to the criticism and the argument of counsel as to their accuracy or want of accuracy. We do not think this assignment is well taken.

It is said there was no case made for the people to present to the jury, because the evidence did not show the defendant was connected with the fire. We have already quoted some of the testimony. There was testimony that Mr. Potter ordinarily carried $15,000 of insurance on the contents of the mill. About 60 days before the fire he had taken out a fire insurance policy of $5,000, which expired within a day after the fire; another policy of $5,000, which expired a few days after the fire; it was also shown that at first he made a claim for the loss of $27,000, while he admitted shortly afterwards that his loss was but $12,000. There was testimony from the miller who worked for him that just before the fire large shipments of the contents of the mill had been made, so that there was not a large amount of grain, flour or feed left; that shortly after the fire Mr. Potter cautioned the miller not to say too much to the insurance adjusters.

There was also testimony that Mr. Potter returned to his apartments, Mrs. Potter being away from home, at 12:30 to 1 o’clock a. m. the night of the fire. There were other details of the testimony which it would profit no one to recite, that tended to establish the guilt of Mr. Potter. We think from the evidence the inference of guilt could be fairly drawn.

The argument of counsel for the people ia criticized. Both sides were represented by able counsel who conducted the case with great zeal. When proper allowances are made for the excitement growing out of such a trial, and for the arguments of opposing counsel which are reported at considerable length, we do not think the arguments made in this case can be said to be reversible error.

Act No. 89, Pub. Acts 1915 (3 Comp. Laws 1915, § 14565), reads:

“No judgment or verdict shall be set aside or reversed, or a new trial be granted by any court of this State, in any case, civil or criminal, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for errors as to any matter of pleading or procedure, unless, in the opinion of the court, after an examination of the entire cause it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.”

A careful reading of this long record does not satisfy us that the verdict should be set aside because it has resulted in a miscarriage of justice. On the contrary we think the evidence fully justified the verdict, and it is affirmed. The case will be remanded to the court below for further proceedings.

Steere, C. J., and Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Steere, C. J.

text:
    CURRY v. CURRY.
    1. Equity — Forfeitures — Land Contracts — Default — Vendor and Purchaser.
    Equity does not favor forfeitures, arid, when time is not of the essence of the contract, relieves against them when harsh and hasty steps to enforce for default in payment are unjust and inequitable.
    2. Vendor and Purchaser — Land Contracts — Default—Acquiescence — Time Not of Essence of Contract.
    Where the vendees’ default was acquiesced in and condoned over a long series of years by the continued acceptance of payments by the vendors, time was not of the essence of the contract.
    3. Same — Equity—Trusts—Legal Title Held in Trust.
    In equity the vendor under a land contract holds the legal title as trustee for the vendee, and trust relations are an element of the contract.
    4. Same — Forfeiture Without 'Chance to Redeem Not Favored by Equity.
    While forfeiture may be contracted for as a basis for expeditious termination of the relation of vendor and vendee in a land contract, drastic measures taken after forfeiture to seize possession without warning and thereby cut off the vendee’s last chance to redeem as recognized in summary proceedings are not, between vendor and vendee, entitled in equity to as tolerant consideration as in cases involving only the relation' of landlord and tenant.
    5. Same — Forfeitures—Action by Vendor to Regain Possession.
    Upon appropriate steps following forfeiture of a land contract, three actions are open to the vendor: A suit in equity to foreclose the contract; an action of ejectment; proceedings under the statute to recover possession by summary proceedings.
    6. Same — Illegal Possession Not Recognized in Equity.
    Where defendant vendor used a key which was in his possession as an employee of the vendee to enter the building in the nighttime and bar part of the same against said vendee, after declaring a forfeiture, such possession cannot, in equity, be recognized as a peaceable re-entry and ouster of a defaulting vendee who, up to that time was in possession of the property under his contract.
    7. Same — Tender oe Amount Due — Relief from Forfeiture— Specific Performance.
    Tender of full amount due, with costs, within six days of notice of forfeiture, held, to entitle vendees to a decree relieving them from said forfeiture, on payment of same within 30 days, on their suit for specific performance of their contract, in view of 3 Comp. Laws 1915, § 13253, as amended by A.ct No. 243, Pub. Acts 1917, giving defaulting vendee 30 days after judgment of restitution in summary proceedings by the vendor in which to pay the amount found due.
    Appeal from Shiawassee; Collins (Joseph H.), J.
    Submitted January 19, 1921.
    (Docket No. 91.)
    Decided March 30, 1921.
    Bill by Ira G. Curry and another against Arthur L. Curry and another for the specific performance of a land contract. From a decree for plaintiffs, defendants appeal.
    Affirmed.

      Pulver & Bush, for plaintiffs.

      Selden S. Miner and Leon F. Miner, for defendants.
   Steere, C. J.

The parties to this suit are two brothers and their' wives, who are sisters. Plaintiffs pray for relief from forfeiture and. ask specific performance of a land contract given them by defendants covering a lot of 21 feet front with a three-story and basement brick building thereon, located on East Main street in the city of Owosso. Plaintiff Ira G. Curry had long conducted a hardware store in the building. The property formerly belonged to Lewis V. Gurry, father of Ira and Arthur Curry, who died in 1910. An adjustment of his estate resulted in defendant Arthur Curry becoming the owner. He was then working for Ira and sold him the property for $6,000 under a land contract, remaining in his employment in the hardware store, which the latter continued to operate in this, building until this suit was heard.

The contract, dated June 15, 1910, runs from defendants to plaintiffs, being signed and acknowledged by all four of them. It is a common short form of land contract. The purchase price is made payable within 5 years, with interest at 6 per cent, per annum, payable semi-annually on all sums remaining unpaid. The vendees are required to keep the buildings insured in the vendors’ favor to the amount of $3,000 and pay all taxes of every nature assessed against the property. It contained the not unfamiliar forfeiture clause for nonperformance, authorizing the parties of the first part to immediately déclare the contract void, treat parties of the second part as tenants holding over without permission and remove them therefrom, in case of any failure by the latter “to perform this contract or any part thereof.” It contains no provision making time the essence of the contract.

The family and business relations of the parties appear to have continued amicable and Arthur remained in his brother’s employ until shortly before this bill was filed early in January, 1920. During that time he worked in various capacities in and around the store, part of the time at tinning and plumbing, and also as clerk and salesman, and other general work necessary around á hardware store. He carried a key to the store and in the line of his employment had like access as his employer to the various parts of the premises. It is undisputed that almost from the beginning plaintiffs did not keep up their payments in accordance with the terms of the contract; and it is also shown without dispute from entries made at the time that payments, often in small amounts, were made upon it and accepted by Arthur in a continuous series extending for 9 years after the contract was made, and until this litigation arose, although the amount yet due was then greater than when the contract was made. The amounts and times of payments made to Arthur by Ira are apparently unquestioned. The latter carried insurance upon the building up to $3,000, assigned or payable to Arthur, made certain repairs and paid the taxes upon the property except for two years, upon which he only paid $41.65 and Arthur paid the balance out of some money he borrowed from the bank for that and other purposes. Ira paid the interest on the portion of that loan which went to pay those taxes. Payments- were made and accepted on this contract in each month during 1919. Ira at times had tenants on the second floor of the building who usually paid their rent to him, but occasionally paid it to Arthur, who in such cases gave them receipts signed Ira G. Curry, sometimes writing “Art” beneath. Several such receipts so signed by him were produced in evidence, one given as late as December 30, 1919. A recent tenant named Siess, who ran a small cigar factory in a room over the hardware, was told by Arthur on October 3, 1919, when he went to see about paying his rent, to pay it to Ira, which he thereafter did, drawing checks to him on the 9th of each month. These items of rent were all paid by Ira to Arthur along with other payments .and credited by him on the contract. Arthur admitted the receipt of six small payments made him by Ira in December, 1919, which he credited on the contract, one of which was a $15 payment by Siess. Of the rent he testified on cross-examination:

“Every dollar of rent received from the building, whether paid to Ira or to me, went to me and I credited it to Ira upon his contract account.”

That this contract was unforfeited, recognized by defendants as yet operative, and, as a matter of law, remained in full force and effect until December 30, 1919, is conclusively established. Shortly before December 30, 1919, Ira broached the subject of taking Arthur into partnership with him in the hardware business. What passed between them during their discussion of that subject is in marked dispute, but it does appear that serious differences developed in which Arthur asserted the contract was forfeited and Ira had no further interest in the property under his contract, which the latter disputed.

On December 30, 1919, a notice of forfeiture prepared by counsel was served upon plaintiffs at the instance of defendants. On the morning of Saturday, January 3, 1920, Ira went to his store as usual but could not open the door with his key and on investigation found the store and basement in which he had goods locked and barred against him. He also found on the outside a three-word note in Arthur’s handwriting referring him to an attorney. He was thereafter excluded from his store and unable by peaceable means to open or enter it until the following Tuesday, January 6,1920, when enforced exclusion was relieved by a temporary injunction issued by the circuit court, in chancery, of that county. It was learned on cross-examination of Arthur that he had effected this sudden measure of exclusion during closing hours of business when his brother was absent by letting himself into the building at about 11 o’clock of the night before, using for that purpose the key of the store which he carried, and then firmly barred the doors, on the inside against entrance of the store or basement from without. He did nothing to exclude the tenants or anybody else from the second or third floor of the building. At that time part of Ira’s stock of goods was on the third floor, as well as the first floor and basement. No part of the stock was removed from the building. On January 3, 1920, after Arthur had barred the doors, as stated, defendants served two notice's on.plaintiffs, stating that, having given notice of forfeiture, they had taken possession of the premises, but claimed no interest in stock of merchandise in the building and plaintiffs on due notice would be given opportunity to remove the same. On January 5, 1920, counsel stipulated that if a sufficient amount was tendered by plaintiffs and refused the exact amount due would be left to subsequent determination and the tender regarded as kept good. On January 6, 1920, plaintiffs made defendants a tender in due form of $8,500, to coyer the full amount due on the contract and any unpaid taxes,' which was refused. This bill was then filed upon the same date.

Many pages of the record are devoted to a schedule of payments on the contract, with computation of balances due from time to time, including interest on interest, from which the trial court found there was yet due on the contract the sum of $8,482.12, covering all charges and arrearages within its purview up to the time of the hearing. This computation is not challenged by defendants, though gone over by Arthur, as he testified, and is apparently accepted as correct.

We do not deem it necessary to review in detail the arguments made by counsel upon the equities involved with extended citation of authorities directed to the propriety of granting or refusing equitable relief. It is elementary that equity does not favor forfeitures, and when time is not of the essence of the contract relieves against them when harsh and hasty steps to enforce for default in payment are unjust and inequitable, while by permitting full and prompt performance by the defaulting party no injustice results to either.

Time was not of the essence of this contract. Manifestly it was not so treated or regarded by either party. Plaintiffs, though sadly in default, had made substantial payments on the contract, amounting in all to over half the original purchase price. Their continuing default was in failure to make full payments when due, which was acquiesced in and apparently condoned by continued acceptance of smaller payments applied on the contract through all those years. Unquestionably, defendants could have long before compelled plaintiffs to promptly pay the full amount due on their defaults or by proper proceedings dispossessed them and nullified the contract. This they did not see fit to do, but permitted the contract to remain in force, steadily accepting payments thereon until a quarrel between the brothers was promptly followed by declaration of forfeiture without final demand of payment or other warning and a surreptitious seizure of possession of the store in evident attempt to avoid the possibility of redemption, which customary legal proceedings to obtain possession might permit.

Defendants’' counsel cite, and, in justification of Arthur’s stealthy entry in the nighttime, rely upon a line of cases involving forfeiture which sustain repossession thereafter by peaceable entry and retention by force, if necessary. These cases relate for the most part to questions between landlord and tenant in which the defaulting tenant never had any ownership or equitable interest in the title to the property as a vendee. In equity the vendor under a land contract holds the legal title as trustee for the vendee and trust relations are an element of the contract. While forfeiture may be contracted for as a basis for expeditious termination of those relations, drastic measures taken after forfeiture to seize possession without warning and thereby cut off the vendee’s last chance to redeem as recognized in summary proceedings, are not between vendor and vendee entitled in equity to as tolerant consideration as in cases involving only the relation of landlord and tenant. Upon appropriate steps following forfeiture, this court has said:

“Three actions were open to the complainant upon the failure of the vendee to make payments, and the service of notice upon him declaring the contract forfeited: (1) A suit in equity to foreclose the contract; (2) an action of ejectment; (3) proceedings under the statute.- The first two actions exist independent of the statute. The third is purely statutory. The only violation of the vendee’s contract in this case was his failure to make pajonents. This brought him directly within the terms of the statute. He who seeks possession for violation of a lease or contract of sale for nonpayment of money due thereunder takes the remedy subject to the conditions imposed by the statute. The statute was designed to provide a speedy and summary remedy for obtaining possession of lands held over contrary to these agreements, and in doing so it also sought to give the lessee or vendee another opportunity to retain the benefit of his contract by payments within five days, where the failure to pay was his sole default.” Lambton Loan & Investment Co. v. Adams, 132 Mich. 350.

This contract gave plaintiff immediate possession of these premises at the time of its execution. From that time Ira Curry was in undisturbed legal possession, personally and through his employees and tenants, daily conducting a long established, going hardware business there, occupying for that purpose three of the four floors of the building until the closing hours of Friday evening, January 2, 1921. The fact that he was absent during that night, leaving his place of business closed and locked in the customary manner, did not change the nature of his possession. Arthur’s right of access to the locked store by the key he carried was only that of an employee in the line of his employment. His hostile night activities were confined to the store floor and basement in which he was employed. He effectually bolted all doors to that part of the building with hasp locks and bars nailed across, leaving the second and third floors undisturbed with Ira and his tenants in the same possession as before. As to that part of the building there was not, even by the questionable method pursued, a re-entry and ouster. In Maday v. Roth, 160 Mich. 289, it is indicated that a partial ouster and re-entry are not sufficient.

But aside from that technicality we think the trial court rightly held that under the circumstances of this case such stealthy closing down of his employers’ business by Arthur in the nighttime cannot in equity be recognized as a peaceable re-entry, and ouster of a defaulting vendee up to that time in possession of the property. Defendants were seeking possession on violation of a contract of sale for nonpayment of money due thereon and, as stated in the Adams Case, could have foreclosed the contract, brought' an action of ejectment or, more speedily, resorted to the. provided statutory remedy to recover possession by summary proceedings, which, under section 13253, 3 Comp. Laws 1915, as amended by Act No. 243, Pub. Acts 1917, gives the defaulting vendee 30 days after judgment of restitution to pay the amount found due, with costs. Within six days after notice of forfeiture and three days, including a Sunday, after the stealthy seizure of the business portion of the building, plaintiffs tendered payment in full, which was refused.

The decree of the lower court relieving plaintiffs from forfeiture on payment within 30 days of $8,482.12, with interest thereon at contract rate from June 7, 1920, is in substance affirmed, with costs of this court to plaintiffs, except that time for payment is extended to 30 days from filing of this opinion. In default thereof defendants will have decree of dismissal, with costs.

Moore, Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    UITHOVEN v. SNYDER.
    1. Negligence — Crossing Accident — Personal Injuries — Evidence — Weight of Evidence — New Trial.
    Id. an action for personal injuries caused to plaintiff by a collision between his motorcycle and defendant’s automobile at a street intersection, where the record shows a sharp dispute between the witnesses as to how the accident happened, the verdict for plaintiff held, not so against the weight of the evidence as to call for reversal.
    2. Same — Evidence—Trial—Appeal and Error.
    That counsel for plaintiff was allowed to take the answer of a juror, on his voir dire examination, that his automobile was insured in a mutual company, and that a witness, on cross-examination by counsel for defendant, stated that he thought the insurance company would do the right thing by plaintiff and advised him not to go to court, which answer was immediately stricken out, held, not reversible error, where the trial judge instructed the jury that there was no question of insurance in the case, and that it would be a fatal mistake for them to allow themselves to be influenced in any way by any suggestion of that sort dropping from the mouth of a witness, etc.
    3. Evidence — Expert Witness — Competency.
    Objection to incompetent questions and answers put to a witness called as an expert was properly sustained.
    4. Same — Municipal Corporations — Ordinances — Negligence — Speed of Vehicles.
    A city ordinance regulating the speed at which vehicles must pass over railroad tracks was properly excluded where the collision in question occurred more than 125 feet from the railroad crossing.
    5. Appeal and Error — Requests to Charge Covered by General Charge.
    Refusal to give requests to charge, which, so far as they were proper statements of the law, were fully covered by the general charge, held, not reversible error.

      6. Same — Assignments of Error to Charge.
    The Supreme Court will not discuss isolated sentences of the charge of the trial court which might be open to criticism, where no assignments of error in relation thereto were made.
    Error to Kalamazoo; Weimer (George V.), J.
    Submitted February 2, 1921.
    (Docket No. 112.)
    Decided March 30, 1921.
    Case by Frederick Uithoven, an infant, by his next friend, against J. Allen Snyder for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Clyde W. Ketcham, for appellant.

      Jackson, Fitzgerald & Dalm, for appellee.
   Moore, J.

In September, 1918, the plaintiff rode southerly on Portage street in Kalamazoo on a motorcycle. Vine street intersects Portage street. As the plaintiff approached Vine street, the defendant, who was driving an automobile north on Portage street, turned to the left for the purpose of crossing Portage street and entering into Vine street. The vehicles collided, resulting in severe injuries to the plaintiff who brought this suit to recover damages. The defendant moved for a directed verdict, which motion was denied. The case was submitted to a jury, resulting in a verdict and judgment in the sum of $4,075. A motion was made for a new trial which was denied, and the case is brought here by writ of error.

The trial judge charged the jury in relation to the claims of the respective parties as follows:

“It is the theory and claim of the plaintiff in this case that he was proceeding southerly on Portage street on his motorcycle, and the defendant was proceeding northerly on the other side of the street, upon the east side of the street in his automobile, and that at the intersection of Vine street the defendant turned his automobile to the west and negligently caused it to collide with the plaintiff’s motorcycle, producing injuries to the plaintiff. * * * That the plaintiff was in the exercise of due care. * * *
“It is his theory and claim that the defendant was negligent, particularly as follows:
“First: That the defendant suddenly and without warning changed the course in which he was proceeding, and turned to the west.
“Second: That the defendant failed to have his automobile under control.
“Third: That in changing the course of his automobile he disregarded and ignored the plaintiff’s' position on the street and the use that the plaintiff was making of the street.
“Plaintiff alleges that he has sustained damages, and that those damages consist of several elements, namely,
“First: That his motorcycle was damaged — that he is entitled to recover the reasonable cost and expense of repairs to his motorcycle.
.“Second: That he sustained personal injuries; that his leg was broken. * * *
“The theory and claim of the defendant is that the defendant was not negligent, that he had his automobile under control; that he did not turn suddenly and without warning; that in turning his automobile to the west, he exercised a due regard for the plaintiff’s safety in the latter’s use of the street, and that the plaintiff himself was negligent and that his injury was due to his own negligence rather than that of the defendant. That is, in substance and in effect, the theory and claim of the defendant.”

The defendant argues at great length that the verdict was against the weight of the evidence. The trial judge was of a contrary opinion. A careful reading of the record shows a sharp dispute between the witnesses as. to how the accident happened. We cannot say that the verdict was so against the weight of the evidence that we ought to interfere. See Hintz v. Railroad Co., 132 Mich, at p. 308; Nichols v. Railway Co., 209 Mich. 331.

While examining the jurors in an effort to get a jury the attorney for the plaintiff was allowed to take the answer of a juror that his automobile was insured in a mutual company. On the cross-examination of a witness by counsel for the defendant the following occurred :

“Q. You did not have any such talk with him?
“A. No, sir. I said that he — I tried to have him keep away from the law, and settle with you. I thought maybe you could settle with him cheaper than going to court with it. I advised him not to go to court with it. I said this man was injured and I thought the insurance company would do the right thing, that is what I told him. I advised him against going to court with it.
“Mr. Keteham: I ask that the answer go out as given by the witness.
“The Court: It may go out.”

Counsel insist that those references to insurance were so harmful that the case should be reversed.

The trial judge charged the jury upon this subject. We quote part of what he said:

“There is no question of insurance in this case, and you are not concerned with it. There is no evidence of it in the case, and you are not to guess or speculate or imagine that there may or may not be any insurance involved in this controversy, for there isn’t any, and it would be a fatal mistake for you to allow yourselves to be influenced in any way by any suggestion of that sort dropping from the mouth of a witness. So you will abolish that, obliterate it entirely from your minds in the consideration of the evidence in this case.”

Upon this record we do not think what occurred upon the subject of insurance is reversible error. See Ward v. DeYoung, 210 Mich. 67.

Defendant called an expert as a witness and complains of the ruling of the court in sustaining objections to some of the questions put. To illustrate: “Q. And in answer to the question which of the two vehicles was the aggressor?” The testimony of this expert covers more than eight printed pages and was not restricted where the question and answer were competent.

Complaint is made that a city ordinance was excluded. This ordinance related to the speed at which a vehicle must pass over the railroad tracks. The trial court was of the opinion that this ordinance was not competent because the scene of the collision was more than 125 feet from the railroad crossing. Its exclusion was not error.

Complaint is made of various portions of the charge of the court, and of the refusal to give certain requests of the defendant. So far as these requests were proper statements of the law, they were fully covered by the general charge. It is possible that a few sentences of the charge isolated from the context might be the subject of proper adverse criticism, but as there was no assignment of error in relation thereto we decline to discuss it.

The charge was a long one and fairly covered the issues involved. We find no reversible error.

The judgment is affirmed, with costs to the plaintiff.

Steere, C. J., and Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    RUBY v. TYLER.
    Cancellation of Instruments — Deeds—Insane Persons.
    On a suit by the guardian of an incompetent person to cancel a deed, alleging fraud, duress, and undue influence, that no consideration passed for said conveyance, and that the grantor therein was incompetent physically and mentally, evidence reviewed and held, to justify a decree for plaintiff.
    Appeal from Wayne; Codd (George P.), J.
    Submitted January 21, 1921.
    (Docket No. 132.)
    Decided March 30, 1921.
    Bill by Elizabeth Ruby, guardian of Mary Ann Romer, a mentally incompetent person, against Mary Tyler to cancel a deed. From a decree for plaintiff, defendant appeals.
    Affirmed.

      McIntyre & Robinson, for plaintiff.

      John C. Alexander and Leopold D. Mayer, for defendant.
   Moore, J.

This is a bill brought to cancel a deed. From a decree in accordance with the prayer of the bill the case is brought here by appeal.

We quote from the bill of complaint as follows:

“The plaintiff says:
“1. That she was duly appointed guardian of Mary Ann Romer, a mentally incompetent person, in the probate court for the county of Wayne, State of Michigan, on the 10th day of March, A. D. 1920, and brings this suit in such capacity.
“2. That said defendant resides in the city of Detroit, said county and State; that sometime on some date in the early part of February, 1920, while said Mary Ann Romer, mother of said defendant, was visiting at said Tyler’s home and while said Mary Ann Romer was in an unsound condition both mentally and physically, the said defendant by use of undue influence, persuasion, fraud and unfair methods procured the said Mary Ann Romer to sign a warranty deed of certain property owned by the said Mary Ann Romer located in the city of Detroit, said county and State, commonly known as 457 Brewster street * * * for no consideration whatsoever and wholly against the wishes, desires and intention of said Mary Ann Romer and proceeded to record such deed in the register of deeds’ office for Wayne county, Michigan.
“3. That the said deed was procured by fraud, duress and undue influence and that no consideration passed for such conveyance.”

Defendant answered the bill of complaint, admitting she obtained the deed, but denied any fraud or undue influence, and averred the deed was based upon a sufficient consideration, without stating what the consideration was.

The case was tried in open court. It is the claim of the appellant that plaintiff failed to make a case, and that the bill of complaint should have been dismissed, citing Akers v. Mead, 188 Mich. 277; Hawthorne v. Dunn, 210 Mich. 176, and other cases.

The testimony in the case is rather meager, perhaps growing out of the fact that the trial judge stated to counsel that he thought it would be error to put in any testimony that was also within the knowledge of Mary Ann Romer, for the reason that she had been adjudged incompetent, and he thought the testimony would be barred by the statute. He made a like ruling when Mrs. Romer was offered as a witness on the part of the plaintiff.

The plaintiff and defendant are both daughters of Mrs. Romer. She also had other children. The record shows she had been living with one of them, Mrs. Abar, until Mrs. Abar went to Chicago on Christmas week of 1919, when she went to Mrs. Ruby’s; that in response to an invitation from the defendant she went to visit her on the Sunday following Christmas day. On the 10th day of February, 1920, the deed in controversy was made, and shortly thereafter was put upon record. Mrs. Ruby testified that ' after the Tylers got the deed that “Mr. Tyler called up and told me to come and get her, that he could not be bothered with her.” Mrs. Ruby’s brother did get Mrs. Romer and brought her to Mrs. Ruby’s, where she remained until after the decree was rendered. She has since died and her death has been suggested of record.

Shortly after the return of Mrs. Romer to Mrs. Ruby, Mrs. Romer was adjudged an incompetent person and this suit was instituted March 19, 1920.

Witnesses who had roomed with Mrs. Romer before she went to live with Mrs. Abar testified to- acts showing .her to be incompetent to do ordinary business. The notary who was called in to take the acknowledgment of the deed was a stranger to Mrs. Romer, and found a deed already prepared when he got to the house in the evening when the acknowledgment was taken, and while he expressed the opinion that Mrs. Romer understood what she -was doing, he stated on the cross-examination that Mrs. Romer was so feeble that Mrs. Tyler assisted her in signing her name by guiding her hand.

We quote:

“Q. You had nothing to do with the preparing of the deed?
“A. No, nothing to do with it.
“Q. The old lady never sent, for you to come, that she wanted the deed done?
“A. No, sir.
“Q. Did the old lady, when you were there that night, tell you what she wanted done?
“A. She did not.
“Q. You simply read the deed to her and that is all there was to it?
“A. That is all there was to it.
“Q. Did you see any money pass?
“A. No.
“Q. There was no money passed in your presence?
“A. No.
“Q. Did you discuss any other matter with her, with the old lady on that occasion?
“A. No, sir; I did not.
“Q. Ask her the formal question when you take an execution of a deed, that is, if she acknowledges it to be her free act and deed?
“A. Yes, I did.
“Q. And that is all you know about it?
“A. That is all I know about it, yes.”

The witnesses to the deed were also strangers to Mrs. Romer. One of them testified Mrs. Romer, we quote:

‘‘A. The old lady said that Mrs. Tyler would take care of her the rest of her life; she would give her the property. Yes, she would do it if she took care of her.”

There was no provision in the deed requiring Mrs. Tyler to take care of Mrs. Romer, and no paper was ever prepared making any such provision. The deed conveyed all the property Mrs. Romer had. Its value was shown to be $5,000.

The decree should not be disturbed. See Nolan v. Nolan, 78 Mich. 17, and Noban v. Shoup, 171 Mich. 191.

The decree is affirmed, with costs to appellee.

Steere, C. J., and Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Moose, j.

text:
    HARRINGTON v. KNEELAND-BIGELOW CO.
    X. Deeds — Sale of Timber — Reversion After Expiration of Time for Removal.
    Where all the timber on. certain described land was sold and deeded by grantor to a corporation, to be removed within a certain number of years, the title to all the timber not removed at the expiration of the period reverted to grantor’s heirs, he having died intestate in the meantime; it being clear that grantor never intended to part with the fee of the land, but did intend to put a limitation upon the time within which grantee must remove the timber.
    2. Equity — Jurisdiction—Injunction—Forfeiture.
    Equity has jurisdiction to restrain defendant from cutting and removing timber which by the terms of the conveyance reverted to plaintiffs after the expiration of the time for removing same.
    Appeal from Montmorency; Emerick (Frank), J.
    Submitted January 6, 1921.
    (Docket No. 49.)
    Decided March 30, 1921.
    'Bill by Jessie M. Harrington and others against the Kneeland-Bigelow Company to enjoin the removal of timber from certain land. From a decree for plaintiffs, defendant appeals.
    Affirmed.

      I. S. Canfield, for plaintiffs.

      Elmer G. Smith, for defendant.
   Moose, j.

The questions involved in this litigation are so clearly stated by the trial court that .we quote his opinion:

“The plaintiff Jessie M. Harrington is the widow of Hiram Harrington, who died intestate on January 11, 1913, and the other six plaintiffs are his infant children and heirs at law. In his lifetime Hiram Harrington was the owner of a parcel of land in this county and on June 19, 1907, he sold and deeded to defendant:
“ ‘All timber standing, lying or being on a certain piece or parcel of land situate and being in the township of Vienna, county of Montmorency and State of Michigan, and described as follows, to wit:
“ ‘On the southeast quarter of northeast quarter of section six, town thirty (SO) north, of range one (1) east, said second party to have eight years from, date to remove said timber, said first party to pay the taxes for the first four years, said second party to pay the taxes for the last four years, if timber is not removed prior to that date.’
“After the death of Hiram Harrington, and on June 2, 1913, his widow, the plaintiff Jessie M. Harrington, gave to defendant an agreement in writing, bearing that date, containing this clause:
“ ‘And said first party shall give to said second party the right to enter upon said premises to cut and remove said timber without any hindrance whatsoever, for a period of five years from this date.'
“The defendant never entered upon this land, or cut or removed any timber therefrom, until some time in the month of January in the year 1919, when it did enter upon said land in its preparations to cut such timber, but was stopped from so doing before it had cut any appreciable amount by the preliminary injunction issued in this suit. Hence the subject-matter of the suit, and the contest between the parties, arises from and involves their conflicting claims as to the present ownership of the uncut, standing and growing timber upon this land.
“I hold that in January, 1919, the legal title to the uncut timber had reverted to, and revested in, the estate of Hiram Harrington by virtue of the terms of his deed of June 19, 1907; and in support of such holding I propose now to cite and consider certain cases where almost the same words have been construed by our own court.
“In the case of Williams v. Flood, 63 Mich. 487, the words of the written and sealed contract are set out at page 490 as:
“ ‘The party of the first part, for and in consideration of the sum of five hundred dollars, to me in hand paid by Henry W. Williams, the receipt whereof is hereby acknowledged, do, by these presents, sell, assign and convey to the said Henry W. Williams all the standing timber,’ etc.
“And at page 488 as:
“Giving and granting the said Henry W. Williams the undisputed right, for two years from this date, to enter upon the said premises and remove the said timber, the same as if he, the said Henry W. Williams, was the owner in fee of said lands.
“In construing this sealed instrument, Mr. Justice Champlin at page 491 said:
“ ‘It appears to me that the parties intended the one to sell and the other to purchase the standing timber, upon condition that it should be removed from the land within the time specified, and that the title to such as should remain upon the land at the expiration of the time should revest in the vendor; the effect of the whole transaction being a sale of so much of the timber as the vendee should remove from the land within the time limited in the agreement for its removal. * * * The breach of the condition worked a forfeiture of the plaintiff’s right and title to the remaining timber.’
“I accept this doctrine implicitly. True it is that these are the words of only two judges, or of only one, if you please. I stand on them not by reason of the number pronouncing them, but because of their inherent probity and soundness.
“In the case of Macomber v. Railroad Co., 108 Mich. 491 (32 L. R. A. 102, 62 Am. St. Rep. 713), the written contract provided:
“ ‘The Cutler & Savage Lumber Company has this day sold to J. S. Wiedman of Lake View, Michigan, all of the timber on the entire section twenty-nine in town thirteen north, of range seven west. The said J. S. Wiedman is to remove the timber in two years from this date.’
“Justice Montgomery in his opinion, concurred in by the entire court, at page 492 says:
“ ‘Contracts containing similar provisions have been construed in the courts in a number of the States, and the weight of authority supports the defendant’s contention that, as to timber remaining uncut at the expiration of the time limited under a contract such as this, the title reverts to the owner of the realty.’
“In other words it is not necessary to use the words ‘shall revert’ in order to cause such reversion.
“In the case of Hodges v. Buell, 134 Mich. 162, the defendants had sold and deeded to complainant a parcel of land with this reservation:
‘“First party (defendants Buell and Fler) reserves all saw timber on said land, with right to enter upon and remove same within two years.’
“During that period defendants entered upon lumbering operations, and at its expiration they had some logs cut which they had not removed from the land and some of the timber remained standing. It was very clearly held in this case that as to logs manufactured by defendants before the expiration of the time limited, but not yet then removed, defendants had title, but that as to all timber then uncut and still standing defendants had lost all further right or title.
“In this case (Hodges v. Buell) Chief Justice Hooker, after quoting the above paragraph from the opinion of Justice Montgomery in the Macomber Case, at page 169, says:
“ ‘Taking this as a correct statement of the law, it would seem to be finally settled in this State that, where, one acquires title to standing timber, the same to be removed within a time stated, he eaimot be divested of his title to such as he severs from the soil during the period, whether, he takes it away from the premises within such period or not, * * * but that he is divested, by lapse of time, of the title to such as was not severed.’
“And again at page 170:
“‘Under the rule above stated, we must hold, as an abstract proposition, that the title to the timber standing was in the complainant (Hodges) after the expiration of the period fixed by the contract. * * * On the other hand, these cases show that the defendants have no further right or title in the standing timber; or such as they cut after the expiration of such period.’
“And so I say in this case that as to the timber standing and uncut on the land in January, 1919, the defendant had no title whatever, and if it had then cut, removed and converted the whole, or any part, of such timber it would have been liable to plaintiffs in an action at law for its value, or in replevin for the specific property; and so it will be if it does so now.
“In defendant’s brief much importance seems to be attached to the fact that no writing, limiting the time of cutting the timber, was ‘signed’ by defendant. Neither was there by the vendee in either of the three cases hereinbefore considered.
“But defendant says, even if such be the law so well settled as to have become a rule of property, plaintiffs may not have relief by injunction to prevent our cutting their standing timber because that would be asking equity to enforce a forfeiture which it will not do.
“But, as was said by Chief Justice Moore, in the case of Dye v. Woodenware Co., 169 Mich. 78:
“ ‘Equity is invoked in this instance, not to declare a forfeiture * * * but to prevent a removal of property belonging to the complainant.’
“True it is in that case the parties had included in their contract the express provision that all timber remaining on the land, whether cut or uncut, should ‘revert.’ But, in the present case as to the timber uncut and standing in January, 1919, the addition to the writing, which was made, of the express provision that such timber should revert would have added absolutely^ nothing to the words actually used, for, as we have just seen from the cases cited, the legal effect of the words used was to cause the standing timber to ‘revert’ to the plaintiffs.
“To make my meaning clear, take the case of Macomber v. Railroad Co., just cited and quoted from. There the only words of limitation were :
“ ‘The said J. S. Wiedman is to remove tbe timber in two years from this date.’
“But the court unanimously held that, as to timber remaining uncut, the title ‘reverts’ to the owner of the realty. And of course to the same effect are the above cases of Williams v. Flood and Hodges v. Buell.
“To deny plaintiffs in this case injunctive relief, as to the timber standing in January, 1919, is to deprive them of any practical remedy which would not result in serious hardship to defendant. When the latter came on to cut the timber on the eighteenth day of that month, had the plaintiffs (after forbidding the same) remained inactive, and the defendant had cut the timber and transported the same by rail more than 100 miles to its mill in Bay City, as intended, the plaintiffs might, and probably would, have recovered their property in specie, either as logs in the mill yard, or as lumber on the tramways, or at the least, its value at the place of detention.
“Indeed if the present bill be dismissed upon the sole ground that equity will not enforce a forfeiture, the plaintiffs will not thereby be deprived of their actions at law, and they may still do what I have just indicated. The best interests of both plaintiffs and defendant demand an adjudication of their respective rights to the standing timber before its severance and manufacture, and it would be a reproach to the law if such a determination could not be afforded them.
“A decree may be settled restraining defendant from cutting the standing timber from the land' in question.”

A decree was made in accordance with the opinion. The case is brought here by appeal.

Counsel for appellant claims:

“Our position is as follows:
“A. This timber still belongs to the defendant.
“(1) By virtue of the character of the conveyance from Hiram Harrington and Jessie M. Harrington, his wife, under date of June 19, 1907.
“(2) By virtue of the instrument, signed by Jessie M. Harrington under date of June 2, 1913.
“B. Even if the timber does not belong to the defendant, the bill must be dismissed as seeking to enforce a forfeiture in equity.”

Briefly stated the claim of appellant is that, as in the conveyance of the timber a short form of warranty deed with the ordinary habendum clause was used, defendant got absolute title to the timber, and that the cases cited by the learned trial judge are not controlling for that reason. Counsel for appellant says he has no decision in this State that is controlling. We quote from his brief:

“And, as I said once before, the question raised in this case has not been passed upon, where the conveyance was made by a full covenant warranty deed, by the supreme court of this State. The nearest construction I have been able to find was in Putnam v. Tuttle, 10 Gray (76 Mass.), 48. In this case, ‘A deed of land habendum, “with all the privileges and appurtenances to the same belonging excepting all the wood and trees on a certain island, I reserve to the grantee, his heirs and assigns forever,” and concluding, “it is understood that the wood above mentioned is reserved to the grantor and his heirs forever.” ’ ”

1

A reference to the case cited will show that it is unlike the case before us. The deed which the court construed in that case was made in 1751, and did not undertake to convey the title to the timber. On the contrary it undertook to reserve to the grantee the title to the timber; we quote: “It is to be understood that the wood above mentioned is reserved to the grantor and his heirs forever.” The court held that what was reserved by the deed was the timber growing on the island at the date of the deed, but without limit as to the time when it should be removed. Clearly a different case than the one before us where there is a limit as to the time when the timber must be taken. We think the instrument conveying the title to the timber in the instant case can hardly be called a full covenant warranty deed, as counsel designates it. It should not be overlooked that the party of the second part is a corporation and the sale is made direct to it and nowhere in the paper is it stated the sale is made to its successors and assigns. It is also clear from the paper that the grantor never intended to part with the fee of the land, but did intend to put a limitation upon the time in which the party of the second part must remove the timber.

We are content with the reasoning and the conclusion of the learned trial judge, and adopt it as our own.

The decree is affirmed, with costs to the appellees.

Steere, C. J., and Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.

The late Justice Brooke took no part in this decision.


text:
    BURRIDGE v. STUDEBAKER CORPORATION.
    Brokers — Real Estate Brokers — Commissions.
    In. an action by a real estate broker for a commission on the sale of real estate, where it appears that plaintiff had a written contract to sell the property for a limited time at $20,000, but was unable to do so, and so wrote defendant, who canceled his contract and later sold the property for $17,500 without any knowledge as to who the buyer was acting for, plaintiff was not entitled to a commission, and verdict should have been directed for defendant.
    Error to Wayne; Mandell (Henry A.), J.
    Submitted January 18, 1921.
    (Docket No. 28.)
    Decided March 30, 1921.
    Assumpsit by Charles W. Burridge against the . Studebaker Corporation for commissions on the sale of real estate. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Walters & Hicks, for appellant.

      Robert M. Brownson (Frederick S. Baker, of counsel), for appellee.
   Moore, J.

The plaintiff sued defendant for commissions he claimed he had earned resulting from a sale of real estate by the defendant. At the close of the testimony the defendant made a motion to direct a verdict against the plaintiff, which motion was overruled. The case was submitted to the jury and a verdict in favor of the plaintiff in the amount of $1,028.12 was returned. The defendant moved the court to enter judgment in its favor non obstante veredicto, which motion, was denied. Later a motion for a new trial was made and denied. The case is brought here by writ of error.

The relations between the parties as affecting this litigation is largely shown by correspondence. We shall quote as much therefrom as we deem necessary to an understanding of the case:

“Detroit, Mich., April 10, ’16.
“To Charles W. Burridge:
“In consideration of valuable services performed and to be performed by you, I, the undersigned, hereby give to you for a term of 10 days, the exclusive sale of the following described property, to wit:
“The Studebaker plant in Pontiac, all buildings and land that go with same, price $25,000, and lowest price to be accepted $20,000. * * * And in case you find a buyer ready and willing to consummate a deal on the foregoing terms, or in case of sale by you of said above described property during the life of this contract, I agree to pay you five per cent, as a commission. * * *
“This agreement shall be in full force for the term above specified, also to continue until I give you five days’ written notice of withdrawal. * * *
“The Studebaker Corporation,
“By A. G. Rumpf, Secretary.”
“April 8th, 1916.
“Mr. A. G. Rumpf,
“South Bend, Indiana.
“Dear Sir: I see Mr. Warner of the Oakland several days ago and he promised to take the matter up with Mr. Nash and let me hear from them soon. I also have a deal on with some other parties through a dealer in Detroit. * * * ,
“The price I have quoted Oakland and the Detroit dealer is $25,000. I am going to hold to this price if possible and close up one or the other.
“Yours very truly,
“Charles W. Bhrridge.”
“April 28, 1916.
“Mr. Chas. W. Bhrridge,
“24 W. Huron Street,
“Pontiac, Michigan.
* * * “We have another deal that is pending which looks rather promising, and I wish you would write me by next mail stating what the prospects are of closing one of the two deals referred to in your letter of the 8th.
“Yours very truly,
“Secretary.”
“May 9th, 1916.
“Mr. Chas. W. Bhrridge,
“24 W. Huron Street,
“Pontiac, Mich.
“Dear Sir: We wish to withdraw the agreement signed on the 10th in respect to the sale of the plant in Pontiac. We have another deal pending to which we want to give attention, and we shall consider the arrangement as set forth in the agreement referred to canceled on the 14th. Kindly acknowledge receipt.
“We of course are not withdrawing the matter from your hands, and wish you to continue to give it attention. Do not, however, want this agreement to stand under the circumstances.
“On the 4th you reported that you had an appointment with Mr. Nash on the following Friday. We would be interested in knowing what, if anything, was accomplished.
“Very truly yours,
“Secretary.”
“May 11th, 1916.
“A. G. Rumpf,
“South Bend, Ind.
“Dear Sir: Yours of the 9th inst. received and contents noted. I was unable to accomplish anything with Mr. Nash, and the other parties would not consider it at even $20,000.
“Yours very truly,
“Charles W. Burridge.”
The record does not show any further correspondence until the following:
“Western Union Night Letter.
“Pontiac, Mich., June 15, 1916.
“A. G. Rumpf,
“Sec’y Studebaker,
“South Bend, Indiana.
“Understand. General Motors has bought your plant here. If- so, according to laws of Michigan, am entitled to the commission. If necessary will sue for same.
“Charles W. Burridge.
“10:35 P. M.”

Then follows quite a voluminous correspondence in which plaintiff claims a commission and the defendant denies he is entitled to it.

The plaintiff was a witness in his own behalf and testified to interviews with Mr; Warner, who he testified was the president and general manager of the Oakland branch of the General Motors Company; that one of them was on May 12th or 13th, the second one in the neighborhood of the 15th or 16th, of May. “My third would be probably the 17th or 18th of May.” He also testified in a general way that he had talks with Mr. Spencer in Detroit. He does not testify that at any time was any price named for the property other than that mentioned in the letter of April 10, 1916, or that any different arrangement was made with defendant than what is contained in the letters of April 10th and May 9th.

On the cross-examination he testified in nart:

“A. I did not find anybody, up to June 26th, 1916, who told me that they would give $20,000 for that piece of property. I know William B! Anderson of Pontiac. I don’t claim that I have had any other talk to get him to purchase this piece of property.”

The sale was actually made in Detroit by a Mr. Spencer, a representative of defendant company, living in Detroit, whose version of what occurred is as follows:

“I never had any talk with Anderson prior to June 7th when he came into my office. And after a considerable time prior to that, these matters had been taken out of my hands, and I was not paying attention to the real estate transactions here for the company prior to that time. I didn’t know that it had been listed with Mr. Anderson. I didn’t even know who he was. I didn’t ask any questions as to whom he was representing. He sent up his card in the usual manner, as I recall, and it had a note on that he wanted to see me about the Pontiac plant. He came up and made me an offer. We agreed on the price and closed the deal right there that day. When he came in, he just offered me a stated sum for the total amount to be paid on this property. We made the deal right away, within the matter of an hour. Mr. Erskine happened to be there that day. That is the reason that I did not take it up with Mr. Rumpf. I went right to Mr. Erskine, the president. * * *
“No, I did not know he was buying for somebody else. Anderson came in the office and offered me $15,-000 for the property. I told him that we would not accept that — that it was too low. He said: ‘Well, I have the cash to pay you for the plant. I will pay you $10,000 today, and the remainder as quick as you produce — or have your abstract brought down to date, and deliver the deed.’ I told him that that was too low, and he said: ‘Well, I know that the property has been vacant for a long time, and you are not getting any income from it. It is an expense to you, you better take this offer while you have the opportunity.’ Mr. Erskine, the president, was here from South Bend that day, and I felt that I ought to submit the offer of $15,000 to him, even though we had been asking $20,000 up to that time. So I went in his office and I told him that I had an offer of $15,000 for the plant. He conferred with Mr. Haslett a minute, and he said: ‘Well, go ahead, Spencer, if you can’t get any more than that, we will take the $15,000.’ Then I returned to my own office, to Anderson, and I told him that I would split the difference with him, that is the difference between $15,000 and $20,000 or take $17,500 cash. He said: ‘No, I don’t want to pay that much.’ We talked for about a minute or so more, and finally he said: ‘Well, will you stand for a commission on that $17,500?’ And I said: ‘Yes, if .you mean five per cent, off that price,’ and he said: ‘Thát is what I mean.’ * * *
“I first.learned that the General Motors got this property when I heard of it through Mr. Burridge, that is, through the letter that he sent me that I referred to earlier.”

Mr. Anderson testified:

“I did not tell Mr. Spencer that I was buying this property for somebody other than myself. I made the offer on behalf of myself. * * *
“I don’t think that I did anything for the General Motors directly until after 1916. At the time of that transaction that was talked about here, I didn’t know anything about that this would go to Mr. Durant, at the time I made the transaction. I did not know or think it would go to the General Motors.”

We now quote from the brief of counsel for the plaintiff.

“The record shows that Anderson testified as follows:
“The Court: I want to ask a question. I don’t know why they don’t. On this last deal, the deal that we are talking about; did you go to Warner or did he send for you?
“A. That would be hard to tell for the simple reason that we had — we were just talking of the farm proposition — he was just buying a farm.
“The Court: And then he spoke to you about this property?
“A. He asked me if I had any property in sight, and if I thought I could sell the Cartercar property. I said yes, I thought I could. At the time they placed the Cartercar property in my hands, which I afterwards sold.
“Mr. Walters: Did anybody that you know that had any connection with the General Motors Company ask you to take up this deal for them?
“A. Not to take it up for them; no, sir.
“Mr. Walters: Who did they ask you to take it up for?
“A. Mr. Warner asked me what was the lowest price I could buy that property for.
“Mr. Walters: Is he the one that sent you on a mission to buy?
“A. Well, he wanted me to see how low I could buy it.”

Counsel citing in support of their contention that under this testimony there was a case for the jury, Brooks v. Leathers, 112 Mich. 463, and Lerner v. Harvey, 189 Mich. 249. A reference to those cases will show that the agreements for commissions were oral and that there was a sharp dispute about what the agreement was. In the instant case there is nothing to indicate that defendant, until long after the sale, had any knowledge of any talk between Mr. Warner and Mr. Anderson, or that it had any knowledge that the property was purchased for the benefit of the General Motors Company. The record is barren of any testimony that the plaintiff had any time brought to the attention of the defendant the fact that he had a purchaser who was able and willing to pay $20,000 for the property.

The record is also barren of any authorization given to the plaintiff to sell the property for less than $20,000. It also fails to show that defendant had any knowledge that the sale to Mr. Anderson was for the benefit of the General Motors Company. The trial judge should have directed a verdict in favor of the defendant. McDonald v. Boeing, 43 Mich. 394 (38 Am. Rep. 199); Wood v. Smith, 162 Mich. 334; Gilmore v. Bolio, 165 Mich. 633 (34 L. R. A. [N. S.] 1050).

Judgment is reversed, with costs to the defendant, and a new trial ordered.

Steere, C. J., and Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.