text:
    TEMBY v. CITY Of ISHPEMING.
    Highways and Streets — Municipal Corporations —Open Space Adjoining Sidewalk.
    Where a building was not constructed to the street line, and the intervening space was used by the owner of the building for his own purposes, and there was no showing that the city exercised any control over it, or had constructed a walk over it, the city was not estopped from denying that the space was part of its sidewalk, to be kept in repair by it.
    2. Municipal Corporations — Billboards.
    A city is not liable, under section 3441,1 Comp Laws, for injuries resulting from the maintenance of a billboard by a property owner on a space between the street line and the building.
    Error to Marquette; Stone, J.
    Submitted April 4, 1905.
    (Docket No. 4.)
    Decided May 12, 1905.
    Case by Richard Temby against the city of Ishpeming for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      W. T. Potter, for appellant.

      Button & Heffernan, for appellee.
   Hooker, J.

The plaintiff was injured by a billboard which Butler was in the habit of using in front of the doors of his opera house, in the city of Ishpeming, to advertise prospective attractions. This billboard was 88 inches in length, 44 inches in width, and weighed over 40 pounds. On each edge, about a foot from the top of the board, a screw hook was placed to fasten into eyes or staples on the beam over the double doors. The lower end rested upon the sidewalk 18 inches or 2 feet from the building. The building is 3 feet back from the street line, but the walk extends to the door. The plaintiff, while passing, was hit and injured by the board, which was blown by the wind against him. There was some testimony indicating that it was not fastened on this occasion. A verdict and judgment for the plaintiff resulted from the trial, and the defendant has appealed. The only question arises over the refusal of the circuit judge to direct a verdict for the defendant.

The undisputed evidence in this case shows that the billboard was wholly outside of the highway and upon private ground. Before the defendant can be held liable to pay for this injury, it must be shown that it “neglected to keep its sidewalk in reasonable repair and in condition reasonably safe and fit for travel.” No complaint is made that the street or sidewalk was not in proper condition and in a reasonably safe and fit condition for travel, so far as the same was dependent upon the condition of the street itself. Plaintiff’s claim rests on the proposition that, to avoid liability under the statute, the municipality must protect the traveler against dangers from beyond the limits of the highway which make traveling unsafe.

The only theories upon which defendant can be held liable in this case are: (1) That all of the sidewalk was a portion of the highway, or (2) that the billboard was a nuisance, which the city might and should have abated.

There is no testimony tending to show that the three feet of ground upon which the billboard stood was a part of the highway, or that the city so treated it. Nothing indicates that it exercised any control over it, or that said three feet was covered by any walk that it built or ordered. This area in front of the opera house appears to have been an exception, other buildings extending to the line of the highway. It is not unreasonable to suppose that it was left for the accommodation of the owner’s patrons, and it is shown that the owner exercised dominion over it by the use made of the billboard, if in no other way. The city had no lawful right to require its use for a street, or to prevent the owner from using it in connection with his opera house in any lawful way. We cannot say from the record that the city should be estopped from denying that this strip was a part of its sidewalk, to be kept in repair, etc., by it.

We must then inquire whether the liability can be sustained upon the ground that it failed to abate a nuisance. In its construction of the statute (1 Comp. Laws, § 3441), which has been somewhat liberal, this court has never gone so far as to hold that it requires the municipality to protect a traveler against dangers which result entirely from the use made of abutting premises by their owners, and which cannot be avoided by barriers or some other effective mode of construction of the highway. It may be reasonably said that a highway is not reasonably safe which has no barriers separating it from a pit or cellar on adjoining premises, and in such a case the liability rests, not on a failure to abate a nuisance, but an inadequate highway. The city may, and should, perhaps, build the barrier, but it has no authority to trespass upon the abutter and fill up his cellar.

In Hixon v. City of Lowell, 13 Gray (Mass.), 61, this subject is discussed by Mr. Justice Hoar. The statute provided that “all highways, town ways, causeways and bridges within the bounds of any town ” are required to “be kept in repair at the expense of such town, so that the same may be safe and convenient for travelers, with their horses, teams and carriages, at all seasons of the year. ” That was a case where snow and ice fell from a building, having gathered there until it overhung the street. The court distinguished the case from the fall of an awning projecting over the street and supported by posts resting upon the sidewalk. The learned jurist said:

‘ ‘ It may not be easy to perceive and state distinctly the difference between the two cases in regard to the liability of the town, but we are all of opinion that there is such a distinction, and that the facts which were proved on the trial will not sustain this action.
‘ ‘ In most cases the town has discharged its duty when it has made the surface of the ground over which the traveler passes sufficiently smooth, level, and guarded by railings to enable him to travel with safety and convenience by the exercise of ordinary care on his own part. There may be many causes of injury, to which he might -he exposed in traveling upon such a way, which would not constitute any defect or want of repair in the way itself. In Vinal v. Inhabitants of Dorchester, 7 Gray (Mass.), 421, it was held that a town was not responsible for an injury caused to the plaintiff by the running of the cars of a railroad company across a public highway, although the railroad was constructed in a manner not allowed by law, and the trains run thereon in a manner dangerous to the travelers on the highway. The town, if it has done its duty in making the way safe and convenient in all the proper attributes of a way, is not obliged to insure the ¡safety of those who use it.
“The traveler may be subjected to inconvenience and hazard from various sources, none of which would constitute a ‘ defect, or want of repair,’ in the way, for which the town would be responsible. He might be annoyed by 1he action of the elements — by a hailstorm, by a drenching rain, by piercing sleet, by a cutting and icy wind — against which, however long continued, a town would be under no obligation to furnish him protection; he might be obstructed by a concourse of people, by a crowd of carriages; his horse might be frightened by the discharge of guns, the explosion of fireworks, by military music, by the presence of wild animals; his health might be endangered by pestilential vapors or by the contagion of disease; and these sources of discomfort and danger might be found within the limits of the highway, and continue for more than twenty-four hours, and yet that highway not be, in any legal sense, defective or out of repair. It is obvious that there may be nuisances upon traveled ways for which there is no remedy against the town which is bound by law to construct and maintain the way. If the owner of a distillery, for example, or of a manufactory, adjoining the street of a city, should discharge continuously from a pipe or orifice opening toward the street a quantity of steam or hot water, to the nuisance and injury of passersby, they must certainly seek redress in some other mode than by an action for a defective way. If the walls of a house adjoining a street in a city were erected in so insecure a manner as to be liable to fall upon persons passing by, or if the eavestrough or water conductor was so arranged as to throw a stream from the roof upon the sidewalk, there being in either case no structure erected within or above the traveled way, it would not constitute a defect in the way.
“ It is true that the present case finds that the snow had slid from the eaves, so that for more than twenty-four hours before it fell it hung above the sidewalk; but we can see no good reason why the plaintiff should therefore have a claim against the city, any more than if it had fallen directly from the roof without the intermediate suspension.
“ The liability of towns for injuries caused by defective ways is created by statute, and is not to be extended, by construction, beyond the limits which a reasonable interpretation of the statute establishes. We are of the opinion that in Drake v. City of Lowell, 13 MetC. (Mass.) 292, one of those limits was reached, and that where there is no-structure, such as, if inconsistent with the safety of travelers, would be an encroachment upon the street, and the way itself is properly constructed, the descent of snow or water from the roof of a building, whether sudden or gradual, does not give a right of action against the town to recover compensation for the injury which it may occasion. It is not, within the meaning of the law, a £ defect or want of repair in the highway.’ ”

It is doubtless true that a municipality, having the control of the highways and the duty of keeping them in repair, must at its peril remove or guard against perils, growing out of defects and obstructions within the highway limits. It has the necessary authority and possession to summarily remove obstructions and other public nuisances therefrom, and the statute imposes a liability for a failure to do so. It has, however, neither the possession nor the authority to invade private premises to summarily remove such things belonging to the proprietor which may be thought dangerous. If nuisances exist on private premises, it is, in most cases, necessary that legal proceedings be instituted to abate them, and we are of the opinion that meantime the city cannot be held liable for the consequences of their maintenance. Redress in such cases must be sought against the owner. In the present.case it may be that the landowner is liable. Certainly, if there is any actionable negligence, it is his, and no good reason suggests itself for bringing this action against the city rather than against him.

We are cited to several cases which are supposed to support plaintiff’s contention. The one most relied on was Cason v. City of Ottumwa, 102 Iowa, 99. In that case there is nothing to indicate that the billboard was upon private property. Apparently it was in the street, as it clearly was in the case of Village v. Kallagher, 52 Ohio St. 185; Grove v. City of Fort Wayne, 45 Ind. 429, was where a cornice overhanging the street fell. It apparently rests upon a statute making it a municipal duty to abate nuisances. It is recognized as an extreme case, if not discredited, in the case of City of Anderson v. East, 117 Ind. 128 (2 L. R. A. 712). It cites the case of Parker v. Mayor, etc., of Macon, 39 Ga. 725, where a liability was predicated on a failure of the city to remove a dangerous ruin upon private property, but on the line of the street — a duty imposed by statute. Another case (a billboard by the way) is found in Langan v. City of Atchison, 35 Kan. 322. This also rests upon a statute, quoted in the opinion, which made it a municipal duty to take down and remove dangerous structures. It distinguished the case of Taylor v. Peckham, 8 R. I. 349, which held the contrary, upon the grounds, first, that the city had no such authority, and, second, that the liability was statutory only in Rhode Island. The same distinction may be made in the present case. In McLoughlin v. Philadelphia, 143 Pa. St. 80, a city was held not liable for injury occasioned by the falling of screens upon a child, although left habitually upon the sidewalk.

We are of the opinion that this cause is not within the statute, the accident resulting from no default of the city in keeping its highway in a condition reasonably safe and fit for travel. We think that it was not the legislative intention to impose upon municipalities the duty of supervising the use of abutting premises by their owners, and that sufferers from the negligence of such must look to them for redress, where such negligence has been confined to private premises and not previously affected the physical condition of the highway in such a way as to give notice and require action by the officials of the city.

The judgment is reversed, and a new trial ordered.

Moore, C. J., McAlvay, Grant, and Montgomery, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    JOHNSON v. GILLEN.
    Trover and Conversion — Damages—Interest.
    Where goods are wrongfully seized on execution and converted, and their owner brings trover, he is entitled to recover interest on their value from the date of the execution sale.
    Error to Washtenaw; Kinne, J.
    Submitted April 5, 1905.
    (Docket No. 16.)
    Decided May 12, 1905.
    Trover by Hans M. Johnson against John Gillen and others. There was judgment for plaintiff for less than the amount claimed, and he brings error.
    Reversed on condition.

      Murray & Storm and Frank F. Jones, for appellant.

      Arthur Brotan and M. J. Cavanaugh (T. A. Bogle, of counsel), for appellees.
   Hooker, J.

The plaintiff, a student, left some personal effects with a lady in Ann Arbor, at whose house he boarded, and with one Lemon and others went to Europe, where he became indebted to Lemon. He was gone upwards of two years. Lemon returned within a few months, and a year or more later sued out a writ of attachment against plaintiff, under which the defendants seized and sold the goods upon execution subsequently issued. They were purchased by Lemon, who afterwards sold some of them and retained others. This action is trover, brought against the sheriff and his deputies who seized and sold the property. The court directed a verdict for the plaintiff, and the jury found in his favor the sum of $100. Upon motion the court rendered judgment therefor, but gave defendants a judgment for costs.

There are many assignments of error which we need not discuss, as the judgment must be reversed for the neglect of the court to direct the jury to give plaintiff interest upon the value of the goods unlawfully converted, as requested by the plaintiff’s counsel. See rough v. Womer, 76 Mich. 383.

The judgment will be reversed, and a new trial ordered, unless the defendants, with the consent of the plaintiff, shall elect to submit to a judgment for the amount of the verdict, with interest thereon from the date of the execution sale and costs. The plaintiff will recover costs of this court.

Carpenter, McAlvay, Grant, and Montgomery, JJ., concurred.


text:
    VAN SLYCK v. ARSENEAU.
    1. Process — Indorsement by Attorney — Sufficiency.
    Where an affidavit, writ of attachment, and return were inclosed in a cover to which they were affixed, and on the cover, but not on the writ itself, the name of plaintiff’s counsel was written, and the copies served were inclosed in a similar cover, there was a sufficient compliance with the statute requiring the attorney for plaintiff to subscribe the writ by writing his name thereon.
    2. Logs and Logging — Lien—Judgment Against Principal Contractors.
    A default judgment against a principal contractor in a suit against him and the owner to enforce a lien on logs for labor is, in the absence of a showing to the contrary, assumed to be valid.
    3. Same — Consolidation of Liens.
    A statement filed under the log-lien law showing the claim of a person for services exceeding $100 is not invalid because an attempt was made to include the claims of others in the same statement.
    4. Appeal and Error — Verdict—Conclusiyeness.
    A verdict on a disputed question of fact is final.
    Error to Houghton; Streeter, J.
    Submitted April 6, 1905.
    (Docket No. 29.)
    Decided May 12, 1905.
    Attachment proceedings under the log-lien law by James D. Van Slyck against Frank Arseneau and the Sagola Lumber Company. There was judgment for plaintiff, and defendant lumber company brings error.
    Affirmed.

      J. F. Hambitzer, for appellant.

      Chadbourne & Bees, for appellee.
   Hooker, J.

On April 11, 1902, one John Chase swore to and caused to be filed a statement of' lien embodying claims for himself and three others, aggregating $675.81. Each claim was separately stated. It included a statement that said persons had designated said John Chase their agent for prosecuting said lien, or any suit necessary to enforce the same, and asked that the claims, as thus united, be treated as one lien upon the property of the Sagola Lumber Company, upon which said persons had respectively performed labor under contracts with one Frank Arseneau, who in turn had such labor performed by virtue of a contract with said lumber company. The plaintiff, Van Slyck, was one of those whose claims were included in the statement of lien. He began an action by attachment against Arseneau soon after the statement was filed. This writ issued May 24, 1902. Some logs were attached, and the writ was personally served upon Arseneau and upon the Sagola Lumber Company, the owner of the logs. The writ and affidavit were inclosed in a cover to which they were affixed, and upon this cover, and not upon the writ itself, the name of counsel was written or printed. The Sagola Lumber Company appeared, and pleaded the general issue, and its attorney appeared at the trial of the issue thus raised. Judgment by default was entered against Arseneau, who did not appear at the trial; also against the Sagola Lumber Company, and it has appealed.

1. It is claimed that the court erred in admitting against objection any testimony against the primary debtor, Frank Arseneau, for the reason that no valid writ was served upon him. We understand this to mean that the judgment against the Sagola Lumber Company was irregular for the reason that no valid service of the attachment was made upon Arseneau, it being defendant’s contention that “ no valid lien can attach against appellant’s property unless a valid judgment is first obtained against the contracting party.” The point to this claim, as indicated by defendant’s brief, Í3 that the writ of attachment did not bear tbe name of plaintiff’s attorney, and that “there was nothing in the proof of service in the writ attached to the same, or anything inside of the cover, to show that the attorney for the plaintiff subscribed or indorsed the writ by writing his name and address thereon, unless it be assumed that the served copy was indorsed as the original, which was indorsed as is usually done before filing.” As we understand it, the affidavit and writ of attachment and the return were all inclosed in the cover bearing the signature of plaintiff’s counsel, and that the copies served were inclosed in a similaf cover. This was a sufficient compliance with the law. There is no presumption that the cover was not attached to, and therefore a part of, the original writ when filed, and the return shows “service of a copy.” If so, it included the cover. The fact that the return was also placed inside of the cover, is without significance. The judgment entered by default may or may not have been regular. The proceedings are not in the record, and, if they were, Arseneau has not questioned them. It must be assumed that they are valid. Moreover, error is not assigned upon the absence of a showing of a valid judgment, and therefore the question is not before us.

2. It is said that the statement of lien was not sufficient to support this proceeding, for the reason that it was consolidated with other claims. As has been said, four claimants joined in one statement, evidently relying upon 3 Comp. Laws, § 10762, as authority for doing so. This section was evidently designed for the benefit of those whose claims were individually less than $100, and not for the benefit of those who might have claims exceeding that sum. While section 10757, which provides how such liens shall be made and filed, makes no allusion to a practice of joining several claims in a single statement, we see no' objection to it. This statement shows clearly the claim of this plaintiff, and there is no occasion to hold it invalid, because an attempt was made to include other claims in the same statement.

3. It is asserted that the court should have dismissed the suit, for the reason that the testimony as to the actual balance due for plaintiff’s personal services was too indefinite and uncertain to form any reliable basis for a determination by the jury. We think that there was evidence from which the jury could determine the amount due for horse hire and that due for personal labor of the plaintiff. It was not error, therefore, to submit the question to them.

4. Error is assigned upon the verdict for $342.58 due for personal services and the application of the payments to the amount due for horse hire. We are of the opinion that these were disputed questions, and that the verdict is final.

Some other questions are discussed in the brief of defendant, but the foregoing discussion covers all questions properly before us.

The judgment is affirmed.

Carpenter, McAlvay, Grant, and Montgomery, JJ., concurred.


text:
    BECKWITH v. MACE.
    1. Partnership — Purchase by Partner — Authority—Evidence —Admissibility—Right to Sue Firm.
    Where a declaration against a partnership for property sold to it contained a special count alleging the partnership, the holding out of one of the partners as manager, with authority to promote the business of the firm, and his purchase of the property on the firm’s behalf, it was competent to show a holding out of the partner as authorized to act for the firm in the transaction.'

      2. Same — Evidence—Sufficiency.
    In an action against a partnership for goods purchased by a partner, evidence considered, and held, that the question of the partner’s authority to buy the goods for the firm was for the jury.
    3. Same — Declarations of Partner.
    Though the authority of an agent cannot be proved by his declarations, where a partnership is sued for the price of goods sold to it, evidence of the declaration of an alleged partner who bought the goods, made at the time of the purchase, that he bought them for the firm, is admissible as a part of the res gestse, as showing the nature of the contract actually agreed on.
    4. Same — Liability for Goods Bought by Partner.
    The fact that a partner buying goods for the partnership gave his individual note for the price does not prevent the seller from recovering the price from the partnership which had the benefit of the transaction.
    Error to Oceana; Russell, J.
    Submitted April 6, 1905.
    (Docket No. 36.)
    Decided May 12, 1905.
    Assumpsit by Alanson Beckwith against L. Stowell Mace, Robert H. Lanyon, and John S. Huey, copartners as the Stony Lake Resort Company, for goods sold and delivered. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      F. F. Wetmore, for appellant.

      Wallace Foote, for appellees.
   Hooker, J.

The defendants’ counsel admitted, upon the trial of this cause, that his clients constituted a syndicate formed to exploit a summer resort called the “ Stony Lake Resort,” and sell lots. The testimony showed that, in furtherance of that design, defendant Mace was manager, and one Barnes superintendent upon the ground, and that a dock was made at the lake, some clearing and other work done, and that the time of the men was kept by Barnes, under whose supervision they worked. They were given orders by Barnes, which were paid sometimes by Huey, if not by the other defendants. The action is brought by the plaintiff to recover the price of a team and other property which he claims to have sold to the defendants as a copartnership. The deal was made with Mace, who gave his personal note for the purchase price. Plaintiff sought to prove that the defendants were copartners, and that Mace stated at the time of the purchase that he was buying the property for the copartnership; but the court was of the opinion that he had produced no proof of copartnership authorizing such purchase, and excluded the statements of Mace upon the ground that his copartners could not be bound thereby. A verdict being directed, for the defendants, the plaintiff has appealed.

The declaration contained a special count alleging the copartnership, the holding out of Mace as manager of its business, with authority to promote the business of the firm, and his purchase of the team on its behalf. The common counts were added, with a copy of the note. Under the special count, it was competent to show authority or a holding out of Mace as one authorized to act for the copartnership in this transaction. It was shown beyond dispute that he was one of the copartners, and there was testimony tending to show that he was the active manager of its affairs, and was so recognized by his co-partners. There was also testimony tending to show that the copartnership contemplated more than the mere sale of lots; that it engaged in cleaning up the ground, building a dock, and other things that required the employment of help and the use of a team; that the team in question was used by the copartnership; and that it afterwards claimed to own the team through a purchase from Mace. These circumstances were sufficient to make a case for the jury upon the question of authority.

Plaintiff’s counsel were not permitted to show that Mace declared at the time the team was purchased that he was buying it .for the firm, and that the plaintiff sold it to the firm. This appears to have been upon the theory that it was not competent to thus prove plaintiff’s authority to bind the firm as its agent, or to show that the act was within the scope of his authority, by his declarations, under the generally accepted doctrine that the authority of an agent cannot be proved by his declarations. It was competent to prove the transaction; to ascertain whether the purchase was understood by the parties to be one made by Mace on his own behalf, or for a firm. Whether there was a firm, and whether Mace had authority to act for it, would perhaps affect the validity of his attempt to bind others, but the evidence offered was admissible to show the nature of the contract actually agreed upon. It was part of the res gestes, and should have been admitted.

That copartners may be bound by a written contract signed by one of them, see Barcroft, George & Co. v. Haworth, 39 Iowa, 462; Seekell v. Fletcher, 53 Iowa, 330; Stecker v. Smith, 46 Mich. 14; Hopkins v. Thomas, 61 Mich. 394, and cases there cited; Michigan Savings Bank v. Butler’s Estate, 98 Mich. 381; Whitla v. Butler’s Estate, 99 Mich. 53.

Defendants’ counsel invokes a rule applicable to non-trading partnerships, alluded to in the case of McPherson v. Bristol, 115 Mich. 258. We are of the opinion that there is nothing in that case inconsistent with plaintiff’s right to have the questions hereinbefore mentioned submitted to the jury, viz., whether Mace had authority to purchase the team for the firm, and whether he did so, whether they accepted it, and had the benefit of the transaction.

We do not overlook the point that verbal testimony is inadmissible to vary the terms of a written instrument. The action is not alone upon the note. The authorities hereinbefore cited show that the execution of an individual note by one joint debtor does not preclude recovery of the debt represented by the note against two or more who had the benefit of the transaction, and upon whose behalf the contract was made. The case of Coote v. Bank of U. S., 3 Cranch (U. S.), 95, relied upon by defendants’ counsel, seems to recognize this, in the following language:

“ His right as a partner is only to represent the firm and to act in the name of the firm. As an individual he has no authority over the partnership effects. If he acts avowedly in his individual character, everybody knows that he cannot bind the firm; and every person who deals with him ostensibly in his individual character, if he would charge the firm with his acts, must take upon himself the burden of proving that, notwithstanding appearances to the contrary, he was acting for and on behalf of the firm, and for their account and benefit.”

This is what the plaintiff has sought to do in this case, and he offered evidence which entitled him to go to the jury upon the question. ■

Several assignments of error were discussed by counsel. Some of them, involving the introduction of hearsay testimony, are not meritorious. Others are sufficiently covered by what has been said, and we think it unnecessary to discuss them in detail.

The judgment is reversed, and a new trial ordered.

Carpenter, McAlvay, Grant, and Montgomery, JJ., concurred.


author: Carpenter, J.

text:
    HUOT v. REEDER BROTHERS SHOE CO.
    1. Estoppel — Husband and Wife — Creditors — Wife’s Property.
    Where a husband and wife united in conveying her land as security for a loan on the agreement, which neither of them understood, that on payment the reconveyance should be to the husband, which was done, the wife is not estopped to claim the land, as against a subsequent creditor of the hus■band, she having done nothing to mislead the creditor.

      2. Principal and Agent — Knowledge of Agent —Notice to Principal — Acts Against Principal’s Interest.
    If the husband understood that he was taking the title, and its legal effect,.his knowledge was not chargeable'to his wife, since he was acting in his own interest and adversely to her.
    Appeal from Alpena; Emerick, J.
    Submitted April 6, 1905.
    (Docket No. 23.)
    Decided May 12, 1905.
    Bill by Joseph Huot and Mel vina Huot against the Reeder Brothers Shoe Company, Ferdinand Huot, and John Willis to set aside an execution levy and to reform a deed. From a decree for complainants, defendant shoe company appeals.
    Affirmed.

      Collins & D’Aigle, for complainants.

      Joseph H. Cobb (Peter Doran, of counsel), for appellant.
   Carpenter, J.

Complainants, as grantees of Delphine Huot, claim to be the equitable owners of lot No. 5, block 2, of Carter’s Addition to the city of Alpena. The legal title to this lot stands in the name of defendant Ferdinand Huot, the husband of Delphine and the father of complainant Joseph. Appellant claims a lien on said lot as an execution creditor of said defendant Ferdinand. Complainants brought this suit to clear up the title to said lot, and to procure a conveyance from said Ferdinand. They obtained a decree in the court below. Defendant appellant, the Reeder Bros. Shoe Company, appeals to this court'.

The facts are as follows: Prior to October 19, 1888, defendant Ferdinand owned the lot in controversy. On that day he conveyed it to his wife, Delphine, and this conveyance was immediately recorded. At this time defendant Ferdinand was not indebted, and his wife therefore became invested with the complete ownership of the lot. July 29, 1890, for the purpose of procuring a loan of $300, Ferdinand and Delphine united in a deed conveying this lot to John Donovan. At that time a contract was entered into, and signed by Donovan and defendant Ferdinand by which the lot was to be reconveyed, not to Delphine, the real owner, but to Ferdinand. Delphine was entirely ignorant of this contract, and defendant Ferdinand (who could not read the English language), if he knew its import, did not know its legal effect. For the purpose of paying Donovan, said Ferdinand and Delphine, on the 28th of November, 1892, executed a second mortgage upon this property. Donovan was paid, and he executed on the same day a quitclaim deed transferring the property. By mistake, and contrary to the intention of both Ferdinand and Delphine, the grantee named in this, deed, which was speedily recorded, was Ferdinand instead of Delphine. Delphine was ignorant of this mistake, and supposed until shortly before the commencement of this suit that she held the record title. February 20, 1901, said Delphine conveyed the same to complainant Melvina, who, with her husband and co-complainant, Joseph, were then in possession of said lot, under an oral contract of purchase. While the title of this lot stood in his name, Ferdinand contracted the indebtedness for which appellant subsequently recovered the judgment before mentioned. Appellant contends that it entered into this contract believing that said Ferdinand actually owned said property. Our foregoing finding of facts, which accords with the finding of the lower court, disposes of some of the grounds upon which we are asked to reverse the decree appealed from. We proceed to a consideration of the other grounds upon which we are asked to reverse said decree.

It is said that as appellant trusted Ferdinand, believing the land to be his, Delphineis now estopped from claiming it to be hers. To justify this claim of estoppel, it is not enough for appellant to prove that it was misled or deceived.

“ To entitle a party to insist upon an estoppel, he must be able to show that the other party has done something or represented something which has had the effect to deceive and mislead him, and which would render it inequitable for the right of such other party to be now enforced against him.” Crane v. Reeder, 25 Mich., at p. 321.

Neither Delphine nor her grantee either did or said anything to mislead appellant, and were in no manner responsible for the conditions of affairs which did mislead it. The doctrine of estoppel has, therefore, no application. Michigan Trust Co. v. Adams, 109 Mich. 181.

It is urged that, as defendant Ferdinand acted as Delphine’s agent in making the loans in question, she is chargeable with his knowledge that he took the title to the land in his own name. It is seriously contended that, because Ferdinand had knowledge of the wrong he had done his wife in taking this title in his own name (and it is by no means certain that he had this knowledge), she knew it, and, because she did not take steps to regain her property, she must be held to have approved his conduct. This is a novel and startling application of the doctrine that knowledge of the agent will be imputed to the principal — an application which would be attended with disastrous consequences to those whose property might be embezzled or wrongfully appropriated by unscrupulous agents. It is sufficient to say that it is not the law. If Ferdinand was in any sense Delphine’s agent, he was acting, not for his principal, but against his principal and for himself, when he took the title to the land in his own name. The doctrine which imputes to a principal the knowledge possessed by his agent does not apply ‘' where the agent, though nominally acting as such, is in reality acting in his own or another’s interest, and adversely to that of his principal.” Mechem on Agency, § 723. See, also, Brown v. Harris, 139 Mich. 372.

We think that complainant was entitled to relief, and therefore the decree appealed from is affirmed, with costs.

McAlvay, Grant, Montgomery, and Hooker, JJ., concurred.


author: McAlvay, J.

text:
    PAPE v. TOWNSHIP OF BENTON.
    Townships — Road Machines — Purchase—Liability — Enforcement — Assumpsit—Mandamus.
    A township is not primarily liable for the price of a road machine purchased by the highway commissioner under sections 4193-4197, 2 Comp. Laws, and assumpsit will not lie against it for the same, the seller’s remedy being by mandamus against the proper officers to compel the levy and collection of the tax as provided by law.
    Error to Berrien; Coolidge, J.
    Submitted April 6, 1905.
    (Docket No. 24.)
    Decided May 12, 1905.
    Assumpsit by Charles Pape against the township of Benton for the price of certain road machines purchased under section 4194, 2 Comp. Laws. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      John J. Sterling (Gore & Harvey, of counsel), for appellant.

      H S. Whitney and I. W. Biford, for appellee.
   McAlvay, J.

The plaintiff, Charles Pape, doing business as the Fleming Manufacturing Company, sued defendant township in assumpsit upon two certain agreements made and entered into June 12, 1899, and June 30, 1898, respectively, such agreements claiming to be contracts of purchase and sale made under and by virtue of sections 4193-4197, inclusive, of Compiled Laws of 1897. This is Act No. 173 of the Public Acts of 1897, “An act to authorize commissioners of highways in townships to purchase tools and machinery for making roads in certain cases, and prescribe the manner of payment therefor and the use and care of such machines.” Section 1 provides for the purchase by highway commissioners, upon request of a majority of the overseers of highways of such township with the assent of the township board, of certain tools, road machines, etc., for the use of the township. The contracts sued upon were entered into pursuant to section 2 of said act. To properly understand the questions volved in this case, it is necessary to quote the entire section.

“Sec. 2. That the commissioner of highways may, upon the request of one or more overseers of the highway districts of their township, contract for and purchase for such district or districts, upon credit or otherwise, if a majority of the taxpayers of one or more highway districts in any township, representing more than one-half of the taxable property in such district, or in each of such districts, to be ascertained by the last preceding assessment roll and certified to as such by the township clerk of the town, petition the commissioner of such township therefor, such commissioner may contract for the purchase upon credit or otherwise a road machine for the use of such district or districts, which implement shall be used, cared for and owned by such district or districts jointly. Such implement shall be paid for out of the highway tax of the district or districts for which they are purchased,. and may be paid for in annual installments, not exceeding five years. If purchased for more than one district, the amount paid by each shall be in proportion to the amount of highway tax paid by each; a copy of the note or contract issued upon the purchase of such implement shall be filed in the office of the township clerk of the township in which such road district or districts are situated, and it shall be the duty of said township clerk to present a statement of the sum due there'on to the township board at each annual meeting thereafter for the audit of the township claims and charges, and the township board shall audit such sum and certify the same to the board of supervisors of the county. Not more than one-half of the highway tax of any district shall be applied in payment therefor in any one year. The portion of the tax so applied shall be required to be paid in money, and assessed and levied upon the property of such district or districts an'd collected in the same manner as other township charges are assessed, levied, and collected, except that the amount thereof shall be put in a separate column upon the tax roll, and the board of supervisors of the county shall cause the sum so certified by the township board to be levied upon the taxable property of such highway district or districts, such commissioner of highways shall, with the assistance of the overseer of highways in any road district which is to be charged with the payment of such machine,.after the completion of the assessment roll and ten days before the meeting of the board of supervisors of the county, make and deliver to the supervisor of such township a list of the persons in such district or districts who are named in the last assessment roll as being liable to assessment for taxes to be levied for the payment of such road machine.”

The plaintiff declared specially upon these contracts and upon the common counts. Defendant pleaded the general issue, with notice that the required petitions did not conform to the provisions of the statute as to the number of signing taxpayers and the amount of taxable property represented. Upon the trial before the court with a jury plaintiff offered the petitions with the contracts based thereon in evidence. An objection was made that the declaration stated no cause of action, and upon the facts claimed no recovery could be had in an action at law. This objection was overruled, and the petitions and contracts were admitted in evidence, and proof made that there was due and unpaid $50.10 on one contract and $277.67 on the other, making $327.77, the amount claimed in suit. Defendant then renewed the above objection, which was sustained, the court holding that mandamus, and not a suit at law, was the proper remedy for plaintiff in this case. A verdict was directed for defendant. The case is here by writ of error by plaintiff.

The following are the contracts sued upon:

“Exhibit A.
“No. 9976.
“To the Commissioner of Highways of the Township of Benton, County of Berrien, State of Michigan:
“We, the undersigned overseers and taxpayers of road districts Nos. 2 and 3 of said township, do hereby petition and request you to contract and purchase for our road districts one improved Fleming Road Machine at the agreed price of two hundred and twenty-five dollars, with six per cent, interest on deferred payments, to be owned, used and paid for out of the road tax of said above road districts, in the manner prescribed and set forth in section 2 of a law enacted by the legislature of the State of Michigan, and approved by the governor of said State, May 29, 1897, to take effect immediately, entitled, ‘ An act to authorize commissioners of highways in townships to purchase tools and machinery for making roads in certain cases, and prescribe the manner of payment therefor, and the use and care of such machines.’ The said districts now having a number of days’ work levied shown by figures set opposite the respective names of overseers hereunto attached.
“ I hereby certify that a majority of the taxpayers have signed above and that they represent more than one-half of the taxable property in each of the said districts according to the last preceding assessment roll.
“ Fred Washburn,
“ Township Clerk.
“225.00. June 12, 1899.
“In consideration of the above request, I, Wm. Wees, the undersigned commissioner of highways, of the township of Benton, in the county of Berrien, State of Michigan, have this day purchased of the Fleming Manufacturing Co., Fort Wayne, Ind., onelfnproved Fleming Road Machine at two hundred twenty-five dollars, which sum said township promises to pay to the order of said Fleming Manufacturing Co. together with six per cent, interest from July 1st, 1899, payable annually, the annual payments of seventy-five dollars, together with six per cent, interest. Provided that not more than one-half of the road tax of the above named districts shall be applied to the discharge of interest and principal each and every year until the whole of said principal sum and interest shall have been paid. Payable at Farmers and Merchants Bank of Benton Harbor, Michigan, payment to be made on or before February 15th of each year. First payment to be made February 15, 1901.
“William Wees,
“ Commissioner of Highways.
“Attested: Fred Washburn,
“Tp. Clerk.
“ Township of Benton, County of Berrien, State of Michigan.}
“I hereby certify a true copy of this contract has this day been filed with me.
“Fred Washburn,
‘ ‘ Township Clerk, “Benton Harbor, Mich.”
“Received from Fleming Manufacturing Co., Fort Wayne, Indiana, one Fleming Improved Road Machine in accordance with above contract.
“ Wm. Wees,
“ Commissioner of Highways.
“ Dated June 22nd, 1899.”
“Exhibit B.
“No. 9573.
“To the Commissioner of Highways of the Township of
Benton, County of Berrien, State of Michigan:
“We, the undersigned overseers and taxpayers of road districts Nos. 9, 13, and 8 of said township, do hereby petition and request you to contract and purchase for our road districts one Improved Fleming Road Machine at the agreed price of two hundred and twenty-five dollars, with six per cent, interest on deferred payments, to be owned, used and paid for out of the road tax of said above road districts, in the manner prescribed and set forth in section 2 of a law enacted by the legislature of the State of Michigan and approved by the governor of said State, May 29, 1897, to take effect immediately, entitled, ‘ An act to authorize commissioners of highways in townships to purchase tools and machinery for making roads in certain cases, and prescribe the manner of payment therefor, and the use and care of such machines.’ The said districts now having a number of days’ work levied, shown by figures set opposite the respective names of overseers hereunto attached.
“I hereby certify that a majority of the taxpayers have signed above and that they represent more than one-half of the taxable property in each of the said districts according to the last preceding assessment roll.
“Ben R. Eastman,
“Township Clerk.
“$225.00. June 30, 1898.
“ In consideration of the above request, I, Dustin Woodin, the undersigned commissioner of highways, of the township of Benton, in the county of Berrien, State of Michigan, have this day purchased of the Fleming Manufacturing Co., Fort Wayne, Ind., one Improved Fleming Road Machine at two hundred twenty-five dollars, which sum said township promises to pay to the order of said Fleming Manufacturing Co., together with six per cent, interest from July 13, 1898, payable annually, the annual payments of forty-five dollars, together with six per cent, interest. Provided, that not more than one-half of the road tax of the above-named districts shall be applied to the discharge of interest and principal each and every year until the whole of said principal sum and interest shall have been paid. Payable at Farmers and Merchants Bank of Benton Harbor, Michigan, payment to be made on or before February 15th of each year. First payment to be made February 15, 1901.
“ Dustin Woodin,
“Commissioner of Highways,
‘ ‘ Millburg, Mich.
“Attested: Ben R. Eastman,
“Tp. Clerk.
“ Township of Benton, County of Berrien, State of Michigan.}
“ I hereby certify a true copy of this contract has this day been filed with me.
“ Ben R. Eastman,
“ Township Clerk,
“ Benton Harbor, Mich.”
“Received from Fleming Manufacturing Co., Ft. Wayne, Ind., one Fleming Improved Road Machine in accordance with above contract.
“Dustin Woodin,
“ Commissioner of Highways.
“ Dated July 13, 1898.”

Exhibit A shows payments indorsed thereon at the times and in the amounts following: “Paid June 14, 1899, $15.86 by Dist. No. 13; $15.86 by Dist. No. 8. Paid Jan. 20, 1900, $35.99 by Dist. No. 9; $20.00 by Dist. No. 13; $20.00 by Dist. No. 8. $60.00 paid hereon Jan. 21, 1901. $46.46 paid hereon May 16, 1902.”

The only question before the court is whether assumpsit will lie against defendant in this case. The only authority claimed for making the contracts is the section of the statute above quoted. The statute is a recent one, and has never been before the court for construction. By the provisions of section 1 (1 Comp. Laws, § 4193) the highway commissioner is authorized to purchase for the township, upon the request of a majority of the overseers in writing, with the assent of the township board, any tools, road machine, rock crusher, or roller, to be paid for, when purchased, out of the highway fund of the township upon orders of the highway commissioner and supervisor. Such orders to be registered with the township clerk, and the sum necessary to pay the same to be certified by said clerk to.the supervisor, which sum shall be added to the other taxes raised for highway purposes, and when collected to apply to the payment of such orders, and to no other purpose. These provisions are clear and certain, simple and satisfactory. The purchase is authorized to be made for the township, to be paid for out of the highway fund of such township upon orders-of township officers, with special provisions how the amounts shall be raised by taxation. No reference need be made to this section but for the fact that the section which follows it, and under which the contracts in litigation were made, is claimed to fix liability against the township upon such contracts. The proceeding is not as complicated as might be inferred from a casual reading of this section of the statute. After the purchase is made, the contract is filed with the township clerk, who presents the statement of the sum due to the township board at its annual meeting. This board audits the sum, and certifies it to the board of supervisors, who cause the sum so certified to be levied upon the taxable property of the highway districts or district. After the assessment roll is made out, and 10 days before the meeting of the board of supervisors, the commissioner and overseer of highways furnish the list of persons against whom this tax is to be assessed to the supervisor of the township, who, after the board has performed its duty, spreads the tax upon the tax roll of his township upon the property of those named in the list so furnished him, such levy and assessment in any one year not to exceed one-half of the highway tax of any district. The statute is mandatory in its terms as to the duties to be performed by the officers and boards of the township and county therein specified.

It is evident from a reading of the two sections that the first provides for these contracts to be made with townships; that in the second the legislature, in providing a means whereby road districts in a township might purchase a road machine, recognized that such districts were not municipalities which could assume obligations, and sue and be sued, and provided a way of payment for this implement necessary in the construction and maintenance of highways, through the provisions of the statute. No proceeding is necessary to determine the amount of such indebtedness. That amount is fixed by the proper township officers, who certify to the board of supervisors. The contract fixes the purchase price. Payment can be made only through official channels. Everything is a matter of record. At no time can the balance due be a matter of doubt. The township is not primarily liable. No contract relations exist between the seller of the road machines and the township. The paving cases cited by appellant are not in point. In each the municipality had assumed the liability by contract or otherwise. The duties required to be performed under this statute by the several officers are, in their nature, ministerial. This court has held repeatedly that mandamus is the proper remedy to compel an officer to perform a ministerial duty. In this case, the remedy of plaintiff in case of refusal on the part of these officers to act in the premises was by mandamus.

The judgment of the circuit court is affirmed, without prejudice to the plaintiff as to any steps he may desire to take by proper proceedings.

Carpenter, Grant, Montgomery, and Hooker, JJ., concurred.


text:
    CITY OF DETROIT v. MACKINAW TRANSPORTATION CO.
    1. Taxation — Corporations Engaged in Maritime Commerce— Place op Business — Location op Property — Uniform Taxa- * TION.
    The proviso of section 3834, 1 Comp. Laws, that “the personal property of all corporations of the State for the purpose of maritime commerce and navigation shall he assessed only in the city, village, or township which is stated in their articles of association,” attempts to confer on such corporations the special privilege of fixing the situs of their property for the purpose of taxation in violation of section 11 of article 14 of the State Constitution requiring a uniform rule of taxation. Teagan Transp. Co. v. Board of Assessors, 139 Mich. 1, followed.
    2. Same — Estoppel.
    Where neither a corporation nor its personal property was within the jurisdiction of a board of assessors, except by virtue of an unconstitutional statute authorizing assessment of such property only at the place designated by the articles of such corporation as its general office, it was under no obligation to resist an assessment, and, by failing to resist, did not lose its right to object to the invalidity of the assessment when sued for the tax.
    3. Same — Voluntary Payment.
    A voluntary payment of personal taxes assessed under an invalid statute for one year does not affect the right to raise the question of the invalidity of the tax in a suit for taxes subsequently accruing.
    Error to Wayne; Rohnert, J.
    Submitted April 6, 1905.
    (Docket No. 33.)
    Decided May 12, 1905.
    Assumpsit by the city of Detroit against the Mackinaw Transportation Company for taxes. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Timothy E. Tarsney (P. J. M. Hally and Frank E. Doremus, of counsel), for appellant. ■

      Nathaniel E. Slaymaker {Henry Russel and O. E. Butterfield, of counsel), for appellee.
   McAlvay, J.

This is an action of assumpsit brought by plaintiff against defendant to recover the amount of a personal tax levied against defendant for the year 1902. The facts are not disputed.

Defendant is a Michigan corporation engaged in maritime commerce and navigation, and was organized about the year 1882; the city of Detroit being designated in the ■original articles of association as the location of its general office for business. By amendment of these articles made in November, 1901, filed with the secretary of State April 2, 1902, this general office was changed from Detroit to the village of Mackinaw. A certified copy of these amended articles was filed with the county clerk of Wayne county, May 8, 1902. The stock of defendant was owned in equal shares by three railroad companies, and its personal property consisted of two car ferryboats and necessary furnishings. These boats were engaged in the business of ferrying cars apross from Mackinaw to St. Ignace, and carrying some passengers and package freight. The company also owned slips at each end of this route, to make the necessary landings to take on cargoes. It owned no other property, and never had its property in Detroit, or operated its business there, except as the boats may have been there for repairs. It had the office of its secretary at Grand Rapids. Defendant was assessed for personal property at the city of Detroit for the year 1902; the contention of the plaintiff being that, under section 3834 of the Compiled Laws of 1897, the assessment was properly made at the place designated in the articles of incorporation as the location of its general office for business. Plaintiff further contends that this assessment' cannot be questioned in this suit; that the question not having been raised by defendant before the proper municipal boards— no appearance or protest having been made before the assessors or board of review — defendant is estopped. The trial court did not accept plaintiff’s contention, and instructed a verdict for defendant. Plaintiff brings the case here on writ of error.

The amendment to the articles of incorporation and the ownership of the stock of defendant company are facts immaterial to the consideration of this case. Since the trial in the court below the question of the constitutionality of the provisions of the statute in question, relative to the assessment of personal property of corporations organized under the laws of this State for the purpose of engaging in maritime commerce or navigation, at the place only designated in their articles of association to be the location of their general office for business, has been before this court; and such provision has been declared to be in violation of article 14, § 11, of the Constitution, requiring a uniform rule of taxation. See Teagan Transportation Co. v. Detroit Board of Assessors, 139 Mich. 1. This decision controls this case, unless the second contention of plaintiff, that defendant is estopped from questioning this assessment in this suit, is sustained. This position of the plaintiff is not tenable. Personal property of an individual is subject to taxation in a particular district by reason of his residence or the situation of his property. If neither the defendant nor its property was within the jurisdiction of the board of assessors, except by virtue of an unconstitutional provision of law, then no obligation or duty rested on the defendant to do anything with reference to the assessment of its property in the city of Detroit, whether it had or had not notice of such assessment.

Nor can the fact that defendant made a voluntary payment of personal taxes assessed against it for the year 1901 have any bearing upon the proposition.

Upon principle and. authority, defendant could question the legality of this assessment in this suit. See City of Detroit v. Wayne Circuit Judge, 127 Mich. 604; Wood- mere Cemetery Ass'n v. Township of Springwells, 130 Mich. 468; Pioneer Iron Co. v. City of Negaunee, 116 Mich. 430.

The judgment of the circuit court is affirmed.

Carpenter, Grant, Montgomery, and Hooker, JJ., concurred.


text:
    BISHOP v. BOARD OF SUPERVISORS OF OTTAWA COUNTY.
    1. Health — Contagious Diseases — Counties —Local Boards— Itemized Account.
    A local board of health is not required to keep, in a book of its own, an account of the items furnished each person sick of a contagious disease, if it has such an account before it, and is able to render the itemized and separate statement required by the statute. Township of Cedar Creek v. Board of Sup’rs of Wexford County, 135 Mich. 124, followed.
    2. Same — Counties—Claims—Payment by Municipality.
    Where expenses are incurred in the case of an indigent person afflicted with a contagious disease, it is not necessary, under Act No. 7, Pub. Acts 1903, that the municipality first pay the claim and then present it to the board of supervisors, but the claimant may make his claim direct to the board in the first instance.
    3. Same — Board op Supervisors — Powers—Auditing Claims.
    Boards of supervisors have no power, under Act No. 7, Pub. Acts 1903, to reject a claim for services rendered by order of a local board of health, without giving the claimant an opportunity to be heard and to present proof in its support. City of Monroe v. Board of Sup;rs of Monroe County, 137 Mich. 638, followed.
    4. Same — Service Rendered — Liability op County.
    The services of a person employed as a quarantine guard to prevent the spread of a contagious disease are a proper basis for a claim under the act.

      Certiorari to Ottawa; Padgbam, J.
    Submitted April 7, 1905.
    (Docket No. 44.)
    Decided May 12, 1905.
    Mandamus by Harry T. Bishop to compel the board of supervisors of Ottawa county to audit and allow a claim for services rendered during an epidemic of smallpox. There was an order granting the writ, and respondent brings certiorari.
    Affirmed.

      Dan F. Pagelsen, for relator.

      Smedley & Corwin, for respondent.
   McAlvay, J.

This is & proceeding by writ of certiorari to review the action of the circuit court for Ottawa county in a certain mandamus proceeding. Harry T. Bishop was employed by the health officer of the city of Grand Haven as quarantine guard, at the time of a smallpox epidemic in said city, to watch during the nighttime a certain house in which there were patients infected with said disease, and to prevent the spread thereof. He so acted for 35 nights, charging for such services $1.50 per night. An itemized bill for such service was approved by the said health officer, and at a meeting of the board of health of the city of Grand Haven was duly audited, and the amount thereof approved, and fixed at the sum of $52.50. The approval of the health officer was indorsed upon said itemized account, as was also the audit and approval of the said board of health, duly certified thereon by the clerk of said board. This account, with the indorsement thereon, was duly filed with the county clerk, and presented to the board of supervisors of Ottawa county for allowance and payment. The claim was rejected by the board of supervisors, and claimant then filed his petition for a mandamus in the circuit court for Ottawa county to compel said board to audit and allow said claim. This petition set up the facts as hereinbefore briefly narrated. The answer of the board of supervisors admitted all the facts, but denied that the employment of relator by the health officer, and his approval of the bill rendered, and its allowance by the board of health were final, and denied that it was the duty of the board of supervisors to audit and pay said claim, or to ascertain if it was excessive, or if the person having the smallpox was an indigent person, and admits that it did not do so, but referred the claim to the proper committee, “who, upon careful and impartial investigation, rejected the same.” Upon the hearing before the circuit court, the trial judge found the facts as herein stated, and that the claim was one properly to be brought before respondent for its investigation, and that it was its duty to pass upon said claim as provided by Act No. 7 of the Public Acts of 1903. A writ of mandamus was accordingly granted, ordering the board of supervisors “ to at once proceed to audit the said claim, and to investigate whether or not the said expenses were necessarily incurred, and whether or not the services were actually and necessarily performed, and whether or not the amounts claimed for such services are severally just and reasonable, under the circumstances, and that notice be given to said claimant of the time when action on said bill would be taken.”

The case was presented on briefs and oral argument by' both sides.

Respondent contends: First. That under the provisions of Act No. 7, Pub. Acts 1903, the county cannot be called upon to audit and pass upon this claim until after it has been allowed and paid by the municipality; that the claim against the county must be made by the municipality, and not the individual. Second. That the county is not liable for expenses incurred in keeping a watchman to watch a house infected with a contagious disease.

The section of the statute under which proper claims of the kind under discussion could be made a charge against a county was enacted in 1846 (being section 1647, 1 How. Stat.), and reads as follows:

‘ ‘ When any person * * * shall be infected * * * with smallpox * * * the board of health * * * shall make effectual provision * * * for the safety of the inhabitants * * * providing nurses and other assistance and necessaries which shall be at the charge of the person himself,, his parents, or other person who may be liable for his support, if able; otherwise at the charge of the county to which he belongs.”

By amendment (Act No. 97, Pub. Acts 1895) the following was added:

“Provided, That the health board shall keep and render an itemized and separate statement of expenses incurred in so caring for each person.”
Act No. 7, Pub. Acts 1903, made some slight changes in the body of said section, and, striking out the words in the last line of the original section, “otherwise at the charge of the county to which he belongs,” added:
“ Provided, If such person, his parents, or other person who may be liable for his support be not able to pay for such assistance and necessaries, the board of health shall keep an itemized and separate statement of expenses incurred for each and every person cared for under this section, and shall render such statement to the board of supervisors of the county by filing the same with the county clerk. And the said board of supervisors shall, as soon as may be, proceed to audit the said bill, and if found that the expenses were necessarily incurred, the services actually and necessarily performed, and the amounts claimed for such expenses and services are severally just and reasonable under the circumstances, the said board of supervisors shall allow the same or such parts thereof as the majority of the members elect of said board shall deem just, and provide for their immediate payment by the said county, and in auditing such accounts, said several boards of supervisors shall have full power to examine into the merits of all claims presented to them in accordance with the provisions herein contained, and may subpoena witnesses and take any other measures necessary to arrive at the truth of the same.”

Under this law as first enacted, it has been held repeatedly by this court that the action of the boards of health of the municipalities was final, if such action complied with the terms of the statute, and that the claims audited and allowed by them must be paid by the boards of supervisors. Elliott v. Board of Sup’rs of Kalkaska Co., 58 Mich. 452; McKillop v. Board of Sup’rs of Cheboygan Co., 116 Mich. 614, and many other cases. The requirements of the amendment of 1895 that the health board keep and render an itemized and separate account of expenses incurred in so caring for each person was held to be mandatory. Village of Durand v. Board of Sup’rs of Shiawassee Co., 132 Mich. 448.

In the case of Township of Cedar Creek v. Board of Sup’rs of Wexford Co., 135 Mich. 124, where the cases upon this question are cited and approved, this court said:

‘‘We are of the opinion that the allowance by the township board of health, which is identical with the township board in townships, was designed to be final, and, where the law imposes the liability upon counties, it was intended that the allowance by the township board should bind the board of supervisors as to the character of the disease, the necessity and fitness of the articles and services furnished and rendered, as well as the fact that they were furnished.”

In this case, also, as in the case at bar, it was urged that the health board did not comply with the proviso requiring the health boards “ to keep and render an itemized and separate statement of expenses incurred in so caring for each person.” Whether a book was kept by the board -of health of Grand Haven does not appear from this record, but it does appear in this case, as in case of Township of Cedar Creek v. Board of Sup’rs of Wexford Co., supra, that they had before them an itemized account, .and certified thereto. This court held:

“This was a sufficient compliance with the statute. 'The requirement to keep and render an account is met when the board is able to render the itemized and separate statement required by statute.”

Only in cases of indigent persons could these claims become a county charge, formerly, under the original .statute, upon the finding of this fact by the local health board ; then, after tbe first amendment, the additional requirements that said board keep and render an itemized, and separate account in each case.

The contention is here made that the amendment of 1903 now requires that the municipality must first make, payment of such claims to the person performing the services or furnishing the supplies, and that the municipality must present the claim to the county. We do not so construe the statute, nor has this court so construed the former statutes in these cases. Many of the cases have, been brought by municipalities against counties where, these claims have been paid by the municipalities and have been allowed as county charges, but this court has never held that the individual was obliged to look to-the municipality for pay for claims which were proper-charges against a county. The amendment requires an audit of these claims by the board of supervisors, and a full examination into the merits as to the services rendered or expenses incurred, and to allow the same, or so much thereof as may be just and reasonable under the circumstances, by a majority of the board. In this case the board did not comply with this statute, and took no steps in the matter, except to refer it to the committee on miscellaneous claims, which rejected the same. The answer admits that no .witnesses were subpoenaed to ascertain the-validity of the claim, or to ascertain whether the services had been rendered, or the value thereof.

In City of Monroe v. Board of Sup’rs of Monroe Co., 137 Mich. 638, the court said:

“ It was intended by this law [1903] to give the boards' of supervisors the right, which they did not theretofore have, of determining the propriety and reasonableness of bills incurred by local boards of health. It is conceded by the relator and by the circuit judge that, under the new law above quoted, the decision. of boards of supervisors which have legally investigated such bills is final. But can such a bill be rejected without giving to the claimant who presents it an opportunity of being heard ? While the statute does not expressly provide that this opportunity shall be given, such a provision is necessarily implied.”

The further contention is made that in any event this is not in its nature such a claim as comes within the intendment of the statute. Claimant was employed as a quarantine guard to watch the premises in order to prevent the spread of smallpox. It is apparent that such services are usual and absolutely necessary in such cases. The claim in City of Monroe v. Board of Sup’rs of Monroe Co., supra, was for services in acting as watchman.

This statute has been liberally construed. It has been recognized that these are exigency cases, and that the public safety demands the greatest diligence on the part of public officers to prevent public calamity. We find no error in this record.

The learned circuit judge, in his Order above referred to, granting the writ, followed the statute, and required the board of supervisors to do only that which by the plain terms of the law they should have done without the necessity of a court proceeding.

The order of the circuit court granting the writ of mandamus is affirmed, with costs.

Carpenter, Grant, Montgomery, and Hooker, JJ., concurred.


author: Montgomery, J.

text:
    DIAMOND MATCH CO. v. VILLAGE OF ONTONAGON.
    Taxation — Municipal Corporations — Highways — Extra Assessments — Presumptions.
    Where a village levies a tax of three-fourths of 1 per cent for highway purposes, it will be assumed in favor of the validity of the tax that its action in so doing was warranted by the facts and circumstances (§ 3443,1 Comp. Laws), though there was no previous determination of the council of the necessity of levying a tax in excess of the one-half of 1 per cent authorized by the general village law, Act No. 3, Pub. Acts 1895.

      Error to Ontonagon; Haire, J.
    Submitted April 7, 1905.
    (Docket No. 42.)
    Decided May 12, 1905.
    Assumpsit by the Diamond Match Company against the village of Ontonagon for taxes paid under protest. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      W. JR. Adams (Ghadbourne & Bees, of counsel), for appellant.

      Ball & Ball, for appellee.
   Montgomery, J.

The only question at issue in this case relates to the validity of the assessment by the village of Ontonagon in the years 1902 and 1903 of one-fourth of 1 per cent, highway tax in excess of one-half of 1 per cent. Action was brought by the plaintiff to recover back from the village the amount of this excess as levied upon the real and personal property of the plaintiff in the village of Ontonagon. The action included claims for taxes based upon alleged defects in the description of certain parcels of property, but on this branch of the claim the decision of the court below was in favor of the defendant, and judgment was rendered in favor of the plaintiff for the amount which the plaintiff had paid after levy, and under threat of sale, in excess of one-half of 1 per cent, for highway taxes, such excess amounting to $427.81 for the year 1902 and $575.25 for the year 1903, whichitems, with interest, resulted in a judgment in favor of the plaintiff for $1,079.38 damages. In each of the years in question the village of Ontonagon levied a tax of three-fourths of 1 per cent, for highway purposes. This tax was assessed against the property of the plaintiff, and, as above stated, was paid by it involuntarily, and suit was brought to recover back the amount so paid m excess of one-half of 1 per cent. In each year the proceedings with relation to this tax were the same, and the only record in the proceedings of the village council covering the assessment in question is, in each year, as follows: “ On motion, a tax of three-fourths of one per cent, was levied on the assessed valuation for highway purposes.” The law under which the village is maintained, being Act No. 3, Pub. Acts 1895, chap. 9, § 2, permits the council to raise “by general tax upon all real estate and personal property aforesaid,. such sum not exceeding one-half of one per cent, of the assessed value of said property as they shall deem necessary for highway and street purposes.” To the extent of one-half of 1 per cent, the tax in question is conceded to be valid, and it is conceded by defendant that the judgment in favor of the plaintiff for the excess of one-fourth of 1 per cent, and interest is warranted if there was no authority for the levying of such excess. It is conceded by plaintiff’s counsel that under section 3443, 1 Oomp. Laws, power to levy an additional tax for highway purposes does exist. This section, after imposing the duty upon municipalities of keeping the highways and bridges in a ■condition reasonably safe and fit for public travel, provides as follows:

“And when the means now provided by law are not sufficient to enable any township, village or city to keep its public highways, streets, bridges, sidewalks, crosswalks and culverts in good repair, such township, village or city is hereby authorized to levy such additional sum upon the taxable property of said township, village or city, not ex-needing five mills on the dollar in any one year, as will enable such township, village or city to keep its public highways, streets, bridges, sidewalks, crosswalks and culverts in good repair at all times.”

The contention of the plaintiff (which prevailed below) is best stated in the language of the brief of plaintiff’s counsel, which we quote:

“Village councils have certain powers relative to the levying of taxes for general purposes and under general laws. They have certain powers which are only to be exercised when the need exists, or under exceptional circumstances ; and there must be a determination by the village council that the exceptional facts exist, in order to entitle them to act accordingly. The general authority of the village council is exhausted by the levy of one-half of 1 per cent., and, in order to authorize them to levy a further sum under their special powers, there must be a determination by them that the additional amount is necessary in order to authorize them to exercise their exceptional or special powers, and that determination must appear upon their records, and not be left to the memory of the board, or in parol, to justify the levy of the tax and make it valid.”

On the other hand, the defendant contends that thestatute quoted plainly confers the power to levy an additional one-half of 1 per cent, when the necessity exists for such levy; that jurisdiction to levy this tax was conferred upon the common council; and that, as this jurisdiction is not made to depend upon any previous action or nonaction of any other body, nor upon any previous record of determination by the council itself, the usual presumption of regularity of official action should obtain. We think this contention is not met by the authorities cited by the plaintiff’s counsel and accepted by the court below.

The accepted rule of law is well stated in 1 Cooley on Taxation (3d Ed.), 582:

“In all legal proceedings, after proper evidence is given of municipal action, it is always to be assumed that the municipality, whether represented by its people or by its official board, has acted wisely and well upon all matters of policy and of discretion which have been submitted to it, and that the conclusion was warrantedby the facts and circumstances which were the basis of its action. The courts have no power to review their action, so long as they are found to have kept within the limits of their authority. ”

The cases relied upon- by plaintiff’s counsel are Harding v. Bader, 75 Mich. 316; Newaygo County Manfg. Co. v. Echtinaw, 81 Mich. 416; Gamble v. Stevens, 78 Mich. 303; Auditor General v. Railway Co., 116 Mich. 122. The case of Harding v. Bader states the rule followed in the later cases. It was there held that it was the statutory duty of the proper authorities to submit to the electors at the annual township meeting a statement of the sums necessary to be raised by taxation for the ensuing year, and that the township board has, under the statute, authority to act only after this is done, and the electors have neglected or refused to vote the necessary funds, and that where the record fails to show that this opportunity was afforded to the electors, and that they did refuse or neglect to vote money, there is no jurisdiction in the township board to levy a tax. These cases are clearly distinguishable from the present. The jurisdiction of the common council depended upon no previous action of another board or body. The council was authorized to levy this tax, and there is nothing in either statute which requires any previous determination of the necessity for an increased amount by the council.

The judgment is reversed, and judgment will be entered for defendant, with costs of both courts.

Carpenter, McAlvay, Grant, and Hooker, JJ., concurred.


text:
    WILBUR v. GROVER.
    1. Deeds — Delivery—Purpose—Evidence.
    Where a married woman executed and delivered a deed in form conveying certain lands to her husband, evidence of his statements that the intention in making the deed was to vest title in the survivor, is inadmissible.
    2. Same — Delivery—Presumptions.
    Manual delivery of a deed, in form a present grant, to the grantee, in the presence of the grantor, and the formal acceptance and retention of the deed by the grantee — nothing being said or done to qualify the legal effect of the acts and conduct of the parties — raises an inference of a legal delivery of the deed.
    8. Same — Illness oe Grantor.
    Where the grantor in a deed was in her right mind and understood and comprehended what was done, the fact that she was ill does not affect the validity of her deed.

      4. Same — Secret Intentions.
    It is not competent to prove that either of the parties to a deed entertained a secret and undisclosed intention that the delivery of the deed should be ineffectual to transfer title.
    5. Witnesses — Matters Equally Within Knowledge of Deceased.
    Compelling a widow to admit destroying deeds from herself to her husband after his death, does not open the door to statements of hers accompanying the destruction, where they relate to matters equally within the knowledge of the deceased husband. Section 10312, 3 Comp. Laws.
    6. Deeds — Delivery—Presumption Arising from Possession by Grantee.
    In the absence of testimony as to delivery vel non the law will presume delivery of a deed from its possession by the grantee.
    Error to Ionia; Snow, J., presiding.
    Submitted April 7, 1905.
    (Docket No. 43.)
    Decided May 12, 1905.
    Ejectment by De Witt Wilbur against Harriet Grover and John Grover. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Affirmed.

      B. A. Hawley, for appellants.

      V. H. & H. H. Smith, for appellee.
   Carpenter, J.

Plaintiff is the son of defendant Harriet by a former husband, Stephen Wilbur, who died in 1901. He claims that Stephen Wilbur at his death was the owner of the land in controversy, which is now occupied by the two defendants, and he brings this action in ejectment to recover an undivided interest in said lands. Prior to 1879 the land belonged to defendant Harriet. Early in that year said Harriet, while confined to her bed by illness, though concededly in a condition to understand and comprehend what was done, executed a deed which in form conveyed this property to the plaintiff, and plaintiff and wife executed a deed in form conveying the same to his father, Stephen Wilbur. These deeds were never recorded, and on the death of Stephen were destroyed by Harriet. The entire controversy in this case relates to the delivery of those deeds. At the time they were executed, without counting Harriet and Stephen, five witnesses were present, four of whom were still living when the suit was tried in the lower court. These four were produced as witnesses by plaintiff, and, while there are discrepancies in their testimony (such discrepancies as might naturally be expected to exist in the testimony of honest witnesses), each testifies to a manual delivery of the deeds in the presence of defendant Harriet, and under such circumstances as to necessarily imply her consent to their delivery; that nothing was said to qualify the effect of the manual delivery; and that Stephen took possession of these deeds and deposited them in a secretary in the house. There is no competent evidence that Stephen ever redelivered the deeds to Harriet. The trial court directed a verdict in plaintiff’s favor. Defendants ask us to reverse the judgment entered on said verdict for several reasons, which will be stated and discussed in this opinion.

The trial court refused to permit defendant to prove statements of her deceased husband indicating that the intention in making the deed was to vest the title to the land in that one of the two married parties who should survive the other; that is, if Stephen outlived his wife, he was to record the deeds, and thereafter to own the property, and, if his wife outlived him, she should destroy them and “hold the place.” This evidence was properly excluded under the authority of Dyer v. Skadan, 128 Mich. 348; Dawson v. Hall, 2 Mich. 390; Tabor v. Tabor, 136 Mich. 255.

The trial court also refused to permit defendants to prove that, several years after the execution of these deeds, Stephen Wilbur declared in express words, and indicated by his acts, that his wife owned the land in controversy. We are not called upon to determine whether this testimony had any tendency to disprove the fact testified to by plaintiff’s witnesses, that the deed was actually turned over. For, in contending for its admissibility, defendants’ counsel said, “ I presume it was turned over, as Mc-Kendry [plaintiff’s witness] says it was.” It is altogether likely that these excluded declarations and acts merely afforded additional evidence of the grantee’s intention to assert title only in the event of his surviving his wife. If so, they were properly excluded for reasons already stated. It is contended, however, by defendants, that they were admissible as evidence of the grantee’s intent at the time the deeds were formally delivered to him. Were they admissible as such evidence ?

In this connection we may properly consider another and similar question on this record, viz., Had defendant Harriet a right to testify that, at the time the deed was manually delivered, she did not intend that the title of the property should pass ? In determining the admissibility of this testimony, it is to be assumed, then, that a deed (which in form was a present grant) was in fact in the grantor’s presence manually delivered to the grantee, and was by him formally accepted and retained, and that nothing was said or done at that time which in any way tended to qualify the legal effect of the acts and conduct of the parties. In determining this question, we should also bear in mind that but one inference can be drawn from these acts and conduct, viz., that there was a legal delivery of the deed. See Dawson v. Hall, 2 Mich. 390. Nor is this inference in anyway affected by the circumstance that at the time of said manual delivery the grantor was ill, for, when plaintiff undertook to prove that the grantee “understood and comprehended what was done,” defendants’ counsel said: “No claim to the contrary, no claim but what she was in her right mind. ” The question for our consideration, then, is this: Is it competent to prove that either of the parties entertained a secret and undisclosed intention that the delivery of the deed should be ineffectual to transfer title ? The question for our determination is not, as in Schuffert v. Grote, 88 Mich. 650, and in Roup v. Roup, 136 Mich. 385, whether acts and words accompanying a formal delivery are admissible to rebut the presumption that the grantor intended to transfer the legal title. This case is also to be distinguished from those cases where the deed has not been actually delivered to the grantee. See Stevens v. Castel, 63 Mich. 111, and Burk v. Sproat, 96 Mich. 404. In such cases the delivery depends wholly upon the intention of the parties, and, to ascertain this intention, it is permissible and necessary to make an extended inquiry into the acts and declarations of the parties. The excluded evidence in this case was not admissible unless it was competent for the grantor to prove that either he or the grantee at the time of the delivery entertained a secret intention at variance with that which the law inferred from their actions and conduct. I think the elementary principles of the law of contracts forbid the admission of such evidence. See Nichols v. Mercer, 44 Ill. 252.

In a case somewhat like this it was said:

“ Subsequent statements of a party’s motives or intentions will not be received to affect the rights of others or to explain a transaction. It is only the intention declared at the time of such transaction which, as a part of the res gestae, can bind the defendants. An exception to this rule exists only when the statements are made to a party to be affected by them under circumstances from which his acquiescence in their truth can be fairly inferred, if not expressed, and then they are entitled to little or much consideration according to the circumstances under which they are made.” Dawson v. Hall, 2 Mich., at p. 393.

Stevens v. Stevens, 150 Mass. 557—an authority relied upon by defendants — is much in point. There the grantor, unlike the grantor in the case at bar, was a competent witness. She testified that no delivery was made, and it was held that she might also testify that she never parted with the possession of the deeds with the intent that they should take effect. There, it will be observed, the grantor was permitted to testify to an intent in harmony with her nets. That it was not intended to hold that she might testify to an intent at variance with her acts is indicated in the opinion. It is said:

“A concealed intention that a delivery made with such formalities or declarations or under such circumstances that the grantee believed and was justified in believing that the manual transfer was made with the purpose of passing the property to him, and accepting it as such, could not prevail against the intention expressed or fairly to be implied from the declarations or conduct of the grantor.”

Wilson v. Wilson, 158 Ill. 567, relied upon by defendants, is not in point. There it was held that the formal delivery to the grantee did not transfer title, the court saying:

“ It seems clear that this deed was placed by her father [the grantor] in the hands of Lizzie Elson [the grantee] with the mutual understanding that, if he at any time desired to withdraw it, she should return it to him.”

In that case the mutual understanding referred to was proved by competent testimony. It was not held that it could be proved by evidence of a secret, undisclosed intention at variance with the legal effect of the acts and conduct of the parties.

Plaintiff proved by admissions of defendant Harriet that she had destroyed the deeds heretofore referred to. Complaint is made because defendant Harriet was not permitted to testify to other statements accompanying said admissions, which related to matters within the knowledge of her deceased husband. This testimony was incompetent, under section 10212, 3 Comp. Laws, and was not admissible unless plaintiff, by proving said admissions, had waived his right to object to its introduction. Defendants insist that he had. It is true, we have held (see Smith’s Appeal, 52 Mich. 415; Lilley v. Insurance Co., 92 Mich. 159) that when the personal representative or heir of a deceased person, being a party to a suit, proves certain admissions of the opposite party, he’thereby waives the right to object to that party testifying to matters equally within the knowledge of the deceased. In these cases, however, the admission proved related to some matter equally within the knowledge of the deceased, and the decisions rest upon the proposition that the personal representatives or heir must accord to the opposite party the same right he himself asserts; that is, if he resorts to the evidence of the opposite party to prove a fact equally within the knowledge of the deceased, he must concede the same privilege to said opposite party. That eminently just principle has no application to the question under consideration. Here the admission proved by the plaintiff did not relate to a matter equally within the knowledge of the deceased. There is therefore no ground for holding that plaintiff waived his right to object to the testimony under consideration.

Defendants contend that, in any event, the trial court erred in not submitting the case to the jury. It is not denied — indeed, it is apparently conceded — that the deeds were actually executed as contended by plaintiff, and were at once formally delivered to the grantee, and that at this time the grantor was in her right mind, and understood and comprehended what was done. It is contended, however, that the jury might have found that defendant Harriet did not know of, and did not consent to, said formal delivery. And in this connection it is urged that there is a discrepancy in the testimony of the witnesses as to whether the deeds were formally delivered in the bedroom where the grantor was lying, or a few feet away, in an adjoining room. In no view that may be taken of the case is this discrepancy of importance. If the testimony of any of these witnesses is credited, there was a legal delivery. If the testimony of all is discredited, there is no testimony tending to prove that there was no delivery, and in the absence of such testimony the law will presume a delivery from the possession of the deed by the grantee. Dawson v. Hall, 2 Mich. 390.

The judgment of the circuit court is therefore affirmed, with costs.

Mo Alva y, Grant, Montgomery, and Hooker, JJ., concurred.


text:
    MISKWABIK DEVELOPMENT ASS’N v. CROZE.
    Adverse Possession — Evidence—Sufficiency.
    Ir a suit to quiet title, evidence examined, and held, sufficient to sustain a finding of adverse possession.
    Appeal from Keweenaw; Streeter, J.
    Submitted April 7, 1905.
    (Docket No. 41.)
    Decided May 12, 1905.
    Bill by the Miskwabik Development Association, Limited, against Joseph Croze and others to quiet title to land. From a decree for complainant, defendants appeal.
    Affirmed.

      Kerr & Petermann (Ohadbourne & Rees, of counsel), for complainant.

      Ball & Ball, for defendants.
   Hooker, J.

John Carey died seised of the premises involved in this suit on November 28, 1870. His widow, as administratrix de bonis non, executed and delivered a mortgage upon the land, upon a foreclosure of which Stephen Pooley purchased it February 27, 1875, and conveyed to his wife in 1881. Her title, such as it was, came to the complainant through Alfred Guck, to whom she deeded in October, 1901. The suit is to quiet title, and the defendants are the heirs of John Carey.

The foreclosure proceedings are admittedly void, and passed no valid title to Pooley, but complainant’s bill claims title by an adverse possession alleged to have commenced at the time of his purchase, and continued for the statutory period. Counsel for both parties agree that the only question to be considered is the sufficiency of the proof of adverse possession to sustain the decree rendered for the complainant. There is testimony showing that Pooley lived in a village nearby, where he kept hotel; that the land was generally known as the “ Pooley Land,” and was assessed to him, and that Pooley took wood and hay from it frequently; that he built a fence, and kept hay in a building upon it, cut brush, blew out stumps, plowed, and raised some crops. Had the action been ejectment, it would have been error to refuse to submit the question of adverse possession to the jury. We agree with the circuit judge that such possession was fairly proven.

The decree is affirmed, with costs.

Carpenter-, McAlvay, Grant, and Montgomery, JJ., concurred.