text:
    CUMING v. GLEASON.
    Municipal Corporations — Sidewalks—Board of Public Works —Fixing Grade.
    Where a board of public works, after establishing the grade for a sidewalk as directed by the council, recommend that the building of the walk be deferred for one year, its action in so doing does not rescind its prior action in establishing the grade.
    Appeal from superior court of Grand Rapids; Newnham, J.
    Submitted April 11, 1905.
    (Docket No. 48.)
    Decided May 12, 1905.
    Bill by Mary H. Cuming and Emily J. Cuming against Thomas J. Gleason, city marshal, and the city of Grand Rapids, to restrain the building of a sidewalk. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Dwight Goss, for complainants.

      Moses Taggart, for defendants.
   Hooker, J.

The complainants are owners of a messuage upon the east side of Bostwick street in the city of Grand Rapids, with a frontage of 524 feet. This street was graded 20 or more years ago, and no change has been made since. We infer that no sidewalk has ever been laid upon the east side of the street, and that the portion outside of the curb rises abruptly to the east from the curb. The complainants’ dwelling house is alleged to stand 57 feet from the curb line of the street, and 30 feet above said street, upon a sand hill. The bill is filed to restrain the grading for, and construction of, a sidewalk on the east side of said street. The record does not affirmatively show how, when, or by whom the walk was ordered in the first instance, but we infer that it was ordered by the council, under the provisions of section 19, tit. 5, of the city charter (1901), which gives it power to do so. On May 20, 1904, the board of public works passed the following resolution: “Resolved, that the east sidewalk on Bostwick street, between Orescent avenue and East Bridge street, be placed adjacent to the curb.” In doing so it is said to have acted under authority conferred by section 11, tit. 9, of the charter (1901), viz.:

“Said board of public works is hereby empowered to determine and establish the grade line of all streets, highways, lanes, alleys, courts, sidewalks, public places and public grounds, in the city, and to compel the laying of all sidewalks in conformity with the grade line thereof; and in case any sidewalk shall be laid not in conformity with such grade line, said board of public works shall remove such walk and rebuild the same in accordance with the grade line so established, and the cost thereof shall be a charge against the adjoining property, and become a lien thereon, until paid.”

A notice dated May 21, 1904, was duly served upon complainants, referring to a resolution of the council, a copy of which was said to be upon the back of said notice, and a part thereof. It contained specifications, etc. Subsequently the complainants joined in a protest to the board of public works against building the walk next to the curb. Thereupon the board visited the premises, and “on motion of Mr. Shanahan the clerk was instructed to report to the council that an examination of the conditions had been made, and that the conditions of the property at the present time made it impossible to establish a practical grade line; and, inasmuch as there was no public demand for the improvement, he- would recommend to the council that action be deferred for one yearand he sent the following notice to the council:

“ To the Mayor and Common Council.
Gentlemen: Some time ago M. H. and E. J. Cuming, agents for the property on Bostwick street, presented a communication to the board of public works, asking the board to establish a sidewalk grade line on the east side of Bostwick street, between Crescent avenue and Bridge street. At the last out-door meeting the board made an ■examination of the conditions, and I was instructed to report to your honorable body that it is the sense of the board of public works that it - is impossible to establish a practical grade line, and as there is little public demand for a change from the present conditions, they recommend .that action be deferred for one year.
“ Respectfully submitted,
“ Jno. C. Brown, Clerk.”

It does not appear that this action of the board was taken in compliance with section 31, tit. 9, charter 1901, which requires that the vote of each member be shown in .the record of its proceedings. This communication was referred to a committee, and its report was adopted by a yea .and nay vote of the council, 18 to 4. The report is as follows :

‘“To the Honorable Common Council.
Gentlemen: Your special committee, consisting of the committee on sidewalks and the city attorney, to whom was referred the communication of the board of public works, file No. 22,351, in reference to the communication of M. H. & E. J. Cuming, asking said board to establish a sidewalk grade line on the east side of Bostwick street between Crescent avenue and Bridge street, would report thereon: Your committee have given such matter due and careful consideration, and recommend that such grade* line be established, and that walks on such portion of said. Bostwick street be constructed at once.
“ Respectfully submitted,
'“Paul J. Averill,
“ Walter H. Struck.”

The walk not being built by the complainants, the city marshal arranged to build it with a view to charging the expense against the premises, when complainants filed this bill to restrain him. Complainants say that the cause was. heard on pleadings and proofs, while defendants assert that it was heard on bill and answer. The decree dismissing the bill recites that it was heard upon pleadings and proofs, but we find no proofs in the record. An appeal was taken from this decree, and also from the order denying a temporary injunction. We need not discuss the latter.

Complainants’ claim is that only the board of public, works has authority to fix the grade line of the street for sidewalk purposes; that it rescinded its action first taken by its subsequent recommendation to the council, after which the council had not the authority to proceed with the construction of the walk. It is admitted that its action was not an express repeal of its former resolution, but counsel says that it was a rescission by implication. We think this position untenable. The sidewalk was duly ordered by the council. The board took the requisite action to fix the grade, if it was necessary for it to take any action, in view of its similar standing rule alleged in the answer, which we do not decide. It never abrogated this action. It merely recommended delay, and the council, did not acquiesce. The answer in the case fully meets the alleged equities of this bill, and we see no occasion to disturb the decree, which is therefore affirmed, with costs.

Moore, C. J., and Carpenter, McAlvay, and. Ostrander, JJ., concurred.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    BEADLE v. SAGE LAND & IMPROVEMENT CO.
    1. Contracts — Interpretation—Grammatical Construction.
    In the interpretation of contracts a nice grammatical construction is not always to be regarded.
    2. Brokers — Real Estate — Employment—Duration.
    Correspondence creating an agency to sell two tracts of land, examined, and held, to create an agency for the period of 60 days only for both tracts, the broker having “ the privilege of looking the land for 60 days.”
    Error to Chippewa; Steere, J.
    Submitted April 11, 1905.
    (Docket No. 53.)
    Decided May 12, 1905.
    Assumpsit by Charles S. Beadle against the Sage Land & Improvement Company for commissions on the sale of certain real estate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Warner & Sullivan, for appellant.

      De VereHall {Sharpe & Handy, of counsel), for appellee.
   Carpenter, J.

In November, 1902, defendant sold a large tract of land situated in Chippewa county, in this State, to the Northwestern Timber Land Company. Plaintiff, under the claim that he was entitled to a commission for making said sale, brought this suit. This suit was tried before a jury, and a verdict directed in defendant’s favor. Plaintiff asks us to reverse the judgment entered on said verdict. He insists that the evidence shows or warrants the inference that he was the procuring cause of the sale, and that, by virtue of a contract between him and defendant, he was entitled to a commission therefor. The contract between plaintiff and defendant was made by correspondence, which was opened by a letter from plaintiff to defendant dated February 6, 1901, and closed by a letter from defendant to plaintiff dated March 30, 1901. This correspondence consists of eight letters, four of which were written by plaintiff, and four by defendant. We may summarize the first six of those letters by saying that plaintiff notified defendant of his desire, by “ negotiations which would be of short duration,” to act as its agent to effect a sale of a large quantity of its lands to a particular customer, not designated, and that plaintiff and defendant agreed upon a commission to be paid plaintiff in case such sale was effected. In other respects said first six letters were merely preliminary to the arrangement made by the seventh and eighth of said letters. The seventh letter reads as follows:

“Sault Ste. Marie, Michigan, March 25, 1901.
“ Sage Land & Improvement Company,
“Ithaca, New York.
Gentlemen: I have a customer for a small tract of your land, have not seen my large customer [this was the customer before ref erred to] since receiving your last letter, but for the benefit of the small one I request prices by townships of the following: [Then follows an enumeration of certain townships. ] When I get your prices on these tracts he will look them at once witha view of buying them, with this customer I wish you to name your best terms; for the benefit of the larger customer I wish you to send your bestprice on [other specified townships]. Prices to be based upon the red ink areas shown by the map sent you - to me, this matter to be cash price with the privilege of looking the lands for 60 days.
“Yours truly,
“C. S. Beadle.”

Letter No. 8 reads as follows:

“Albany, New York, March 30, 1901.
“C. S. Beadle,
“Times Block, Sault Ste. Marie, Michigan.
Dear Sir: Yours of the 25th at hand. Our prices on land you ask as per map sent you are as follows: [Then follow both the prices on the larger group and the smaller group, as requested by plaintiff.] We will give you an option for 60 days, or until June 2, 1901, on the first lot of land quoted in this letter with the understanding that this price is cash at the expiration of option, and that in case your parties should find that they were not interested in the land at prices named, they would give up the option as soon as they felt sure that they would not want the land. As for the smaller lot, No. 2, we would be willing to take one-third cash down; balance in three payments six months apart at six per cent. No timber to be cut until paid for in addition to down payment.
“ Yours truly,
“ The Sage Land & Improvement Company.”

Until after the sale, in November, 1902 (nearly 18 months later), no further correspondence took place between the parties in relation to this agreement. It is the claim of plaintiff that both before and after June 2, 1901, he talked with the parties who subsequently organized the Northwestern Timber Land Company, and that in consequence of such talk they made the purchase before mentioned. It is conceded by plaintiff that defendant made the sale in question in good faith, not knowing that plaintiff had ever done anything whatever to promote the same.

Plaintiff does not claim to recover merely because his efforts contributed to the sale. He bases his right to recover on the ground that his agency to effect the sale continued until the sale was actually made in November, 1902. His brief warrants our saying that he concedes (and this concession accords with the law as stated in Sibbald v. Bethlehem Iron Co., 83 N. Y. 388) that he has no right to a commission if his agency expired June 2, 1901. Did it so 'expire? This depends upon the proper construction of the letters of March 25 and March 30,1901, heretofore quoted. Plaintiff, while conceding that the exclusive right of his customer for the larger group of land expired June 2, 1901, insists that he himself had a right, not exclusive, to sell the same at a later day; and he also insists that his agency to sell the smaller group of land was unlimited in duration. The concession that the exclusiveness of plaintiff’s customer’s right to purchase terminated June 2, 1901, is fatal to plaintiff’s contention that he himself had thereafter any right to sell the larger parcel. The only right he ever asked was the right to sell that parcel to a particular customer, with the privilege of looking the lands for 60 days. That right he got, and we can find nothing to indicate that he got more than that. It was not intended by this correspondence that plaintiff’s customer should get an exclusive right to purchase for a period limited in duration, and that he himself should continue to be plaintiff’s agent to effect a sale for a period unlimited in duration.

Was plaintiff’s agency to sell the smaller tract unlimited in duration ? To answer this question, we must construe defendant’s letter of March 30th in connection with plaintiff’s letter of March 25th. Plaintiff brings this suit upon the assumption that by the latter letter defendant accepted the proposition which was made in the former. If, therefore, plaintiff asked in his letter of March 25th for a limited time to sell this smaller parcel, we are bound to say that such time was limited by the acceptance of his proposition. Do the words in plaintiff’s letter of March 25th, “ with the privilege of looking the lands for 60 days,” apply to the smaller parcel as well as to the larger ? Plaintiff’s contention that they do not rests entirely upon the fact that they are found in a sentence which relates solely to the larger parcel. While courts, in construing -writings, give due force to the grammatical arrangement of clauses, nothing is better settled than that they will disregard that construction if it is at variance with the intent of the parties as indicated in the whole writing.

“The grammatical construction of a contract will not be followed if a different construction will give effect to the intention of the parties as shown by the whole instrument, and accomplish the object for which the contract was executed.” 9 Cyc. p. 585.

In Gray v. Clark, 11 Vt. 583, land was described in a mortgage as follows:

“All that part of lot number three in the fifth range of lots in said town, meaning to convey all that part of said lot that Luther Hunt deeded to me this day, excepting seventeen acres lying in the southeast corner of said lot, also including one-quarter of an acre which James English deeded to Daniel Wilson.”

The question in controversy was this: Did the mortgage cover the quarter of an acre last described ? The court held that it did. The opinion was written by Justice Redfield, and the reasoning is as follows:

“ If we adopt the rule, ‘ Ut res magis valeat quam per-eat,’ we must consider this as forming apart of the exception, for, as the whole estate had already been described, it would not enlarge nor in any way render more certain the grant, but would enlarge the exception. But this maxim in regard to the construction of deeds is but one among the very great number which the sages of the law have left us. The great object, and, indeed, the only foundation, of all rules of construction of contracts, is to come at the intention of the parties. And any rule which leads us aside of this grand object is to be disregarded. In the present case, from the general nature and object of the transaction and the common course of business, there can be little doubt of the intention of the parties to include the buildings [these buildings were on the land in controversy], which constituted the principal value of the purchase, in the mortgage which was executed to secure the purchase money. * * * We ought not, therefore, to adopt a construction which will defeat the obvious intention of the parties, and produce a result which it is highly improbable, perhaps absurd, to suppose they contemplated. This view is in accordance with established rules of construction. Cholmondeley v. Clinton, 2 Barn. & Ald. Rep. 625; Hassell v. Long, 2 M. & S. 363. It has been repeatedly said that, in the interpretation of contracts, a nice grammatical construction is not always to be regarded. Cromwell v. Grunsden, 1 Ld. Raym. 335, Salk. 462; Fountain v. Gauvers, 2 Show. 333; 7 Petersd. Abr. 139. Hence we are under no necessity of referring the word ‘including’ to the next immediate antecedent, ‘excepting.’ The term ‘including’ may have reference to the deed as well as the exception. And it is evident the most natural and obvious import of the words is ‘ including ’ in the deed, and not in the exception.”

See, also, Newton v. McKay, 29 Mich. 1. We may therefore place upon this clause, notwithstanding its grammatical position, a construction in harmony with the purpose shown by the entire letter. The obvious purpose of the letter was to secure to plaintiff the right of earning a commission by effecting a sale of the smaller parcel (as well as of the larger) to a particular customer. It was just as essential to the accomplishment of the purpose to sell to the smaller as to the larger customer that plaintiff (or his customer) should have the right of inspecting the land, and a definite time during which his right to earn a commission should not be destroyed by any act of defendant. The letter should, if it can be, so construed as to secure this right. There is no difficulty in so construing it. We so construe it when we declare that the words “with the privilege of looking the lands for 60 days” were intended to and do apply to all the lands referred to in the letter. Had defendant within said 60 days deprived said plaintiff of his right to effect a sale, we think that it would have been easy for him to both see and prove that his legal rights were thereby violated. In short, we think the writings, properly construed, gave to plaintiff 60 days, and 60 days only, in which to make a sale of the smaller as well as of the larger parcel of land. Plaintiff had, therefore, no right to a commission upon the sale in question, and the trial court properly directed a verdict in defendant’s favor.

Judgment affirmed.

Moore, C. J., and McAlvay, Ostrander, and Hooker, JJ., concurred.


author: Hooker, J.

text:
    PENCE v. MILLER.
    Limitation of Actions — Adverse Possession — Tax Deed.
    Possession for five years under a void tax deed gives the purchaser title by adverse possession, under section 73, Act No. 206, Pub. Acts 1893, the general statute of limitations (§ 9714, 3 Comp. Laws) having no application to such a case.
    Appeal from Midland; Dodds, J.
    Submitted April 12, 1905.
    (Docket No. 55.)
    Decided May 12, 1905.
    Bill by Jeff Pence against George Miller and another to quiet title to land. From a decree for complainant, defendant Miller appeals.
    Affirmed.

      Floyd L. Post, for complainant.

      De Vere Hall, for appellant.
   Hooker, J.

The complainant filed the bill in this cause to quiet his title to lands occupied by him. His paper title consists only of two tax deeds, admittedly void, and he relies for relief upon proof of adverse possession, taken and held under his tax purchases, for a period exceeding five years. A decree in favor of the complainant has been appealed from by the defendant. A stipulation appears to the effect that:

“ The only question presented by the accompanying case submitted to the judge for his signature and settlement on appeal is that said several tax deeds held by complainant being invalid, for jurisdictional reasons, whether complainant’s actual and undisputed possession of the land in controversy for a period of five years from the date of his purchases or deeds, as contemplated by section 73 of Act No. 206 of the Public Acts of 1893, as amended by Act No. 154 of the Public Acts of 1895, and thereafter amended by Act No. 262 of- the Public Acts of 1899, vested the absolute title in complainant, as against defendant Miller, by adverse possession, or whether, such deeds being invalid for jurisdictional reasons, the general statute of the State (being the second subdivision of section 9714 of the Compiled Laws of 1897) requires complainant to be in such possession of said lands for a period of ten years in order to make his title complete by adverse possession.”

Complainant went into possession in February, 1897, claiming title under a purchase on February 3, 1897; deeds being issued in May, 1897, and action begun in June, 1902. Section 9714 of the Compiled Laws of 1897 provides as follows:

“ After the thirty-first day of December, in the year of our Lord eighteen hundred and sixty-three, no person shall bring or maintain any action for the recovery of any lands or the possession thereof, or make any entry thereupon, unless such action is commenced or entry made within the time herein limited therefor, after the right to make such entry or to bring such action shall have first accrued to the plaintiff or to some person through whom he claims, to wit: * * *
“Second, within ten years where the defendant claims title under a deed made by some officer of this State or of the United States authorized to make deeds upon the sale of lands for taxes assessed and levied within this State.”

Section 73 of Act No. 206, Pub. Acts 1893, provides:

“No sale of any lands or deed made by the auditor general under the provisions of this act shall be set aside or annulled by any court of this State after the purchaser, his heirs or assigns, have been in actual and undisputed possession of such lands so sold or conveyed for a period of five years from the date of such purchase or deed. Whenever any sale made under this act is set aside by any court in a less time than five years, the court shall determine and decree the value of improvements made by the purchaser, if he has been in possession, and give judgment therefor, and issue execution to collect the same of the claimant before putting him in possession.”

The contention of defendant’s counsel is that 3 Comp. Laws, § 9714, fixes the period within which an action or suit must be brought to recovgr possession or quiet title by one claiming through a possession taken under a tax ■deed, and that this period was not shortened by section 73, and that said section was intended to have application only to cases where the owners of the original titles have petitioned the circuit courts in chancery, by intervention in the tax proceedings, for orders setting* aside and annulling decrees made therein. It is strenuously urged that section 73 should not be treated as an act repealing section 9714. A forcible argument is based on the statutes and the case of St. Mary’s Power Co. v. Water-Power Co., 133 Mich. 470, where it is said that, in construing a similar statute (section 66 of the law of 1889, Act No. 195), we held that it was not intended as a statute of limitation. 133 Mich. 477. Section 66 related to the practice of setting aside sales in the tax proceedings, and contained several provisos, the last of which was as follows:

“Provided also, That no sale shall beset aside after the purchaser, his heirs or assigns, has been in actual possession of the lands for five years. If a sale is set aside, the county treasurer shall refund to the purchaser the amount of his bid, with interest at seven per cent., together with the taxes which have been paid by him since said sale, and interest thereon at seven per cent, from date of payment.”

This section was amended in 1891, and ultimately became section 70 of Act No. 206 of the Public Acts of 1893. An important change was made, as is indicated in Spaulding v. O’Connor, 119 Mich. 48, and in St. Mary’s Power Co. v. Water-Power Co., 133 Mich. 477, and while we held in the former case that section 70 (i. e., section 66 as amended) could not be treated in a statute of limitation, we did not pass upon section 73, which was not ■directly involved, though we intimated that it “contained a clear limitation,” as we afterwards said in the St. Mary’s Power Company Case, 133 Mich. 477; apparently declining to apply it only for the reason that by its express terms it was limited to sales under the act of 1893, which the sales in the present case were. There is abundant opportunity for distinguishing section 73 from section 70, in the matter of construction. The former has been shown to contain a proviso having a special reference, while the latter is a broad and direct provision, which forbids all courts from setting aside or annulling a tax sale or deed under which a purchaser has enjoyed actual possession for five years. In the St. Mary's Power Company Case, sections 115 and 116 of the law of 1885 (Act No. 153) were held to be a statute of limitation, notwithstanding the failure of the legislature to repeal section 9714. See, also, Nowlen v. Hall, 128 Mich. 279. It is true that we have not passed directly upon the question here raised, and sections 115 and 116 of the law of 1885, containing a more pointed limitation than that embraced in section 73, were not re-enacted in the same form when the law was revised. We are of the opinion that it would be matter of general surprise, should we hold that there was no five-year limitation law in favor of tax purchases and deeds based on actual possession, in view of what is clearly shown to have been the policy of the State at times, if not continuously, and our repeated expressions upon the subject.

The decree is affirmed.

Moore, C._ J., and Carpenter, McAlvay, and Ostrander, JJ., concurred.


text:
    WILSON v. MEDLER.
    1. Saving Questions for Review — Findings—Exceptions.
    Where there are no findings of fact made or requested, and no exception to entry of judgment, the proceedings before judgment cannot be reviewed.
    2. Justices of the Peace — Judgments—Joint Defendants.
    By the express provision of Act No. 199, Pub. Acts 1899, in an action brought in justice’s court recovery may be had against one of the defendants, though the other be found not liable.
    8. Appeal and Error — New Trial — Grounds of Refusal.
    Where one ground of overruling a motion for new trial is decisive of the case, the correctness of other reasons stated by the trial judge will not be considered.
    Error to Gratiot; Stone, J.
    Submitted April 12, 1905.
    (Docket No. 57.)
    Decided May 12, 1905.
    Assumpsit by Winnifred Wilson against J. Frank Medler and wife for money had and received. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      H. M.Dunham (Dunham & Malcolm, of counsel), for appellants.

      Bert Hayes, for appellee.
   Carpenter, J.

The case made by plaintiff’s testimony, briefly stated, is this: Defendants are husband and wife. In the absence of her husband, defendant Elizabeth and plaintiff entered into an oral agreement whereby the defendants were to sell, and plaintiff to buy, a house and lot in the village of Alma. This property was owned by defendants as tenants by the entirety, -and occupied by them as a homestead. In pursuance bf this agreement, plaintiff took possession. Defendants refused to carry out their agreement, and plaintiff refused to surrender possession. Defendants instituted summary proceedings to recover possession. The parties then agreed upon a compromise whereby plaintiff yielded possession in consideration of defendants’ promise to pay him the sum of $15. This suit was brought to recover said sum, and resulted in a judgment both in the justice and circuit courts in plaintiff’s favor. The case was tried by the court without a jury. No finding of facts was made or requested, and no exception was taken to the entry of judgment. We cannot, therefore, review the proceedings before judgment. See McDonell v. Union Trust Co., 139 Mich. 386. After the entry of judgment, defendants made an oral motion to set aside the same, which the trial court treated as a motion for a new trial. This motion was denied, and to this denial defendants excepted.

The only question open for our review is the action of the trial court in refusing to grant a new trial. Was the trial court in error in overruling defendants’ motion ? We cannot say that the trial court erred in refusing to grant a new trial unless there was error in overruling one or more grounds upon which it was asked. To ascertain the grounds of the motion for a new trial, we must look at the opinion denying the same. The only ground stated in that opinion is “ that Elizabeth Medler cannot be held jointly with her husband, J. Frank Medler, as the contract, if made, did not pertain to her separate estate, and that the judgment is wrongful as to her, and that judgment must be rendered against both defendants or neither.” It is obvious that the proposition contended for by defendants was this: That, as one of them was not liable, judgment must be rendered in favor of both. This is made clear by the subsequent language of the trial judge, who says: “The case is fully covered by Act No. 199 of the Laws of Michigan of 1899.” It is true that the trial judge then stated other reasons for overruling defendants’ motion. We shall not consider the correctness of those other reasons, for the statute cited by the trial judge clearly justified his ruling.

The judgment is affirmed, with costs.

Moore, C. J., and McAlvay, Ostrander, and Hooker, JJ., concurred.


author: Ostrander, J.

text:
    ROBINSON v. WARD.
    Saving Questions for Review— Objections — Evidence — Damages— Lost Profits.
    Where the purpose of counsel in introducing testimony in regard to the loss of future profits was stated frankly and unequivocally, but the objection to it was not placed upon the ground that such profits were unrecoverable, and the subject is not discussed in the briefs, the admissibility of the evidence will not be reviewed.
    Error to Crawford; Sharpe, J.
    Submitted April 13, 1905.
    (Docket No. 68.)
    Decided May 12, 1905.
    Assumpsit by Samuel A. Eobinson against Henry C. Ward for breach of a contract to furnish logs for sawing. There was judgment for plaintiff, and defendant brings error.
    Affirmed.-

      James E. Duffy, for appellant.

      Ward B. Connine (Main J. Connine, of counsel), for appellee.
   Ostrander, J.

The plaintiff sued for breach of a written contract to furnish logs for sawing, and recovered a small sum for unpaid saw bill and a larger sum for lost profits. Defendant claimed that there had been such breach of the contract by plaintiff as justified refusal to furnish logs, and sought to recoup damages for improper sawing of lumber and for delays in sawing. About each issue presented there was a conflict of testimony. In our opinion it would not benefit the profession to state or discuss the points raised on this appeal. A motion for a new trial was made and denied. No reasons for denying the motion were given, and none were requested. There was testimony admitted, over objection, which probably had a material bearing upon the estimate of lost profits, and we are of opinion that defendant was entitled to more specific instructions to the jury upon the subject of lost future profits. But, although the purpose of counsel for plaintiff in introducing the testimony referred to was frank and unequivocal, objection to it was not put upon the ground above stated, nor is the subject discussed in appellant’s brief. The court gave the only request presented by counsel for defendant upon the subject of the estimate of lost profits.

The judgment is affirmed, with costs.

Moore, C. J., and Carpenter, McAlvay, and Hooker, JJ., concurred.


author: Moore, C. J.

text:
    SPACEK v. SCHAUB

    1. Appeal and Error — Record—Conolusiveness.
    This court is governed by the record, rather than the claim of counsel, as to what occurred at the trial.
    2. Same — Verdict—Conolusiveness.
    A verdict on conflicting evidence is conclusive.
    Error to Wayne; Mandell, J.
    Submitted April 14, 1905.
    (Docket No. 81.)
    Decided May 12, 1905.

      Ejectment by Josephine Spacek and another against Anton Schaub and another. There was judgment for plaintiffs, and defendants bring error.
    Affirmed.

      William Look, for appellants.

      George P. Codd, for appellees.

       Rehearing denied June 4, 1906.

   Moore, C. J.

Plaintiffs bring ejectment to recover the easterly one foot of lot 67, on the north side of Watson street, in the city of Detroit. The defendants filed their plea of the general issue, with a notice of adverse possession, statute of limitation, etc. The case was tried by a jury, which returned a verdict in favor of plaintiffs. A motion was made for a new trial, which motion was overruled. The case is brought here by writ of error.

There are a good many assignments of error, but the discussion of most of them is unnecessary, growing out of what occurred upon the trial. In his charge to the jury, the judge said, among other things:

“ Now the issues in this case are somewhat simplified by the claims of the respective parties. The plaintiff claims and the defendants claim that the fence between thém up to four years ago accurately described the boundary line. Now they agree on that, but they do not agree that the fence has remained there in the same place since that. The plaintiff claims that the fence did describe the boundary line up to four years ago, but claims about four years ago that the fence was moved, and that consequently it no longer gives the proper line. Now the burden of proving that by a fair preponderance of evidence falls upon the plaintiff, and, if the plaintiff fails to convince you by a fair preponderance of evidence, then your verdict should be for the defendants. On the other hand, the defendants claim the same thing that the plaintiff does — that up to four years ago this fence accurately described the boundary line — and they seem .to agree upon that; but they differ from the plaintiff, by claiming that the fence today is where it was four years ago. So you see the issues have been simplified in this case by this claim. So the principal question of fact which is unfortunately in dispute here, and which is left for your determination, is, Where was the fence four years ago ? ”

This statement was not challenged at the time. In overruling the motion for a new trial, the circuit judge said:

“At the trial it was agreed between counsel that the plaintiffs’ right to recover depended solely upon the determination of the question of whether a certain fence separating plaintiffs’ and defendants’ property had been moved some six years prior to the trial by defendants. ”

Counsel, in his brief and upon the oral argument, says he challenges the truth of this statement. In disposing of the case, we must be governed by the record, rather than the claim of counsel.

It was the claim of plaintiffs upon the trial that, after the father of the one and the husband of the other obtained the lot, it was surveyed, and it was then 30 feet wide; that later defendant moved his fence 1 foot; and that a subsequent survey showed the lot had been reduced to 29 feet wide. There was testimony to support this claim. The defendant denied this claim of plaintiffs, and, while he admitted he had straightened up the fence, the top of which had sagged, he denied he had moved the bottom of the fence, and insisted it remained where it had been for many years, and gave testimony tending to establish his claim. Whether the fence had been moved or not became the pivotal question in the case. It was fairly submitted to the jury, which decided in favor of the plaintiffs.

Judgment is affirmed.

Carpenter, McAlvay, Ostrander, and Hooker„ JJ., concurred.


author: Grant, J.

text:
    WRIGHT v. CITY OF MUSKEGON.
    Municipal Corporations — Sidewalks—Barriers—Independent Contractors.
    A city is not liable for personal injuries caused by the negligence of a contractor employed by an abutting owner to construct a sidewalk. Thompson v. City of West Bay City, 137 Mich. 94, followed.
    Error to Muskegon; Russell, J.
    Submitted April 28, 1905.
    (Docket No. 117.)

    Decided May 12, 1905.
    Case by Edward Wright against the city of Muskegon for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.
    The board of supervisors of the county of Muskegon made a contract with one Louis H. Kanitz for the construction and repair of a cement sidewalk on one side of the court-house square. The work was completed about noon, and, in order to prevent ped.estrians from walking over it before it was sufficiently hardened, a piece of woven wire fence, about two feet high, was stretched across the ends. About dusk some girls, walking along the street, fell over it. In this way, or in some other, the wire fence was either crushed down or bent over partly upon its side so as to be from four to six inches from the sidewalk. Plaintiff lighted his lantern and placed it near this obstruction to serve as a warning, and notified the contractor over the telephone. The contractor promised to fix it, but did not. Plaintiff did not notify any officer of the city; neither did the city have any knowledge of its condition. The light of the lantern, for some reason, went out. Plaintiff, on the same night, went to a lodge meeting, and on his return, between 11 and 12 o’clock, forgetting about the obstruction, walked over it, fell, and claims to have been injured. The negligence charged is the failure to maintain a proper barrier and to hang up lights sufficient to serve as a warning. The court directed a verdict for the defendant.

      Stephen H. Clink, for appellant.

      James E, Sullivan, for appellee.
   Grant, J.

{after stating the facts). The defendant city exercised no supervision or control over the construction of this walk. It was done entirely by the board of supervisors under a contract with which the city had nothing to do. The precise question was raised in Thompson v. City of West Bay City, 137 Mich. 94, and decided against the plaintiff’s contention. It is unnecessary to repeat the reasoning of that case.

The judgment is affirmed.

Moore, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.


text:
    PEOPLE v. STISON.
    1. 'Criminal Law — Evidence—Dying Declarations — Incest.
    On a prosecution for incest, the dying declaration of the woman to the effect that respondent is responsible for her pregnancy is inadmissible.

    2. Incest — Evidence—Pregnancy—Knowledge of Respondent.
    Where, on the prosecution of respondent for incest with his niece, it is shown that she went to a hospital in a distant city under an assumed name, and that respondent corresponded with her while denying that he knew where she was, evidence of her pregnancy and the birth of a child, and that respond- ■ ent sent her money, is admissible.

      Exceptions before judgment from Oakland; Smith, J.
    Submitted April 28, 1905.
    (Docket No. 192.)
    Decided May 12, 1905.
    Waterman P. Stison was convicted of incest.
    Reversed.
    Respondent was convicted of the crime of incest with his niece, 19 years of age. She was pregnant, and died .in a lying-in hospital soon after the birth of the child. Respondent’s wife had left him, and his niece lived at his house, doing the household work and attending school. She left and went to a lying-in hospital at a distant city under an assumed name. She corresponded with the respondent while there under this assumed name. In view of impending death, she stated to her attendants that the respondent was responsible for her condition. Evidence of these dying declarations was admitted under objection and exception.

      Davis & Bromley, for appellant.

      JohnF. Bird, Attorney General, and Frank L. Covert, Prosecuting Attorney (K. P. Rockwell, of counsel), for the people.

       As to admissibility of dying declarations, see note to Worthington v. State (Md.), 56 L. R. A. 353.

   Grant, J.

(after stating the facts). 1. This ruling presents the main question we need to consider. The decisions of courts are nearly unanimous in holding that dying declarations — the exception to the rule of evidence excluding hearsay testimony — are confined to cases of homicide. The attorney general relies upon the reasoning in People v. Lonsdale, 122 Mich. 388, as applicable to a case of this character. That was a case of homicide alleged to have been produced by abortion. But we there said:

‘ ‘ The admission of dying declarations forms an exception to the law of evidence, and is now confined to cases of homicide.”

The only case cited on behalf of the people to the contrary is the case of McFarland v. Shaw, 4 N. C. 200, decided in 1816. We do not consider the reasoning in that case sound, and it does not appear to have been followed by any court since. See 10 Am. & Eng. Enc. Law (2d Ed.), p. 370, par. 9, note 9. A rule so long and so universally recognized by the wisdom of judicial decisions should not now be set aside.

2. Complaint is made of the admission of evidence of the pregnancy of the deceased girl and the birth of the child. As independent facts, this might be incompetent. Commonwealth v. O’Connor, 107 Mass. 219; State v. Pruett, 144 Mo. 92. The charge against the respondent was that of sexual intercourse with his niece. It was impracticable to separate these facts from others connected therewith, which, if true, tended strongly to show the act of intercourse. She went to a distant city to a hospital, under an assumed name, in order, if possible, that she might hide her shame. She and the respondent were in correspondence under this assumed name. He deceived her parents, informing them that he did not know where their daughter was. Any testimony tending to show that he had had intercourse with her was competent. Her pregnancy, and the fact, if it be a fact, that he gave her money and assisted in secreting her until the child was born, are some evidence tending to show that he recognized himself as the parent of the child. Under the facts of the case, there was no error in admitting this testimony.

Conviction reversed, and new trial ordered.

Moore, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.


author: Per Curiam.

text:
      In re MARION.
    Criminal Law — Sentence and Punishment — Indeterminate Sentence Law.
    A sentence pronounced after, for a crime committed before, the indeterminate sentence law (Act No. 136, Pub. Acts 1903) took effect is to be considered as though that law had never been enacted, and so considered is not invalid because for the maximum and minimum of five years, the maximum sentence provided for the particular crime, nor does it deprive the prisoner of the benefit of the previously existing statutes respecting “good time” in prison.
    Habeas corpus proceedings by Charles Marion to obtain his release from the State prison at Jackson.
    Submitted May 2, 1905.
    (Calendar No. 21,100.)
    Prisoner remanded May 12, 1905.

      Charles Marion, in pro. per.

      John E. Bird, Attorney General (George 8. Law, of counsel), for respondent warden.
   Per Curiam.

Respondent was convicted in the circuit court for the county of Wayne of the crime of receiving stolen property exceeding in value $25 upon an information charging the crime to have been committed February 24, 1903. The statute (3 Comp. Laws, § 11556) prescribes that one convicted of this offense shall be punished by imprisonment in the State prison not more than five years or by fine not exceeding $500 and imprisonment in the county jail not more than one year. On March 12, 1904, respondent was sentenced to be confined " in the State prison at Jackson, Mich., at hard labor for the period of minimum five years maximum five years from and including this day.” Petitioner, who is before us on a writ of habeas corpus, insists that the sentence is entirely invalid; that it was imposed under the provisions of Act No. 136, Pub. Acts 1903, which became operative September 16, 1903, and has no application; that, if held to be a sentence imposed under the governing law, its form deprives him of all rights under Act No. 218 of the Public Acts of 1895, and Act No. 118 of the Public Acts of 1893. The case is to be considered as though the indeterminate sentence law-had never been enacted. In re Lambrecht, 137 Mich. 450. So considered, we are of opinion that this was a valid sentence, imposed under section 11556, 3 Comp. Laws, and does not deprive respondent of the benefits flowing from the statutes referred to.

It will be so certified to the warden of the State prison at Jackson.


text:
    BRINEN v. SUPREME COUNCIL, CATHOLIC MUTUAL BENEFIT ASS’N.
    Beneficiad Associations — Beneficiaries—Change—By-Laws— Amendment.
    A certificate of membership in a mutual benefit society named the member’s sister as beneficiary, and contained a clause limiting the member’s right to change the beneficiary to such persons as the rules and regulations of the association should determine, and providing'that the member should comply with the laws, rules, and regulations which might thereafter be enacted. During the life of the certificate, the constitution and by-laws were, under a provision of the constitution authorizing it, so amended as to exclude strangers and creditors of a member as beneficiaries. Held, that the member could not thereafter substitute a creditor and strangers as beneficiaries, though he might have done so prior to the amendment.
    Error to Muskegon; Russell, J.
    Submitted January 6, 1905.
    (Docket No. 20.)
    Decided May 22, 1905.

      Assumpsit by William Brinen against the Supreme Council of the Catholic Mutual Benefit Association upon a benefit certificate. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed.
    Defendant, a mutual benefit association, is organized under a special act of the legislature of the State of New York, enacted in 1879, Laws 1879, chap. 496. Section 5 of the act provides:
    “The object of this corporation shall be to improve the moral, mental and social condition of its members, and to educate them in integrity, sobriety and frugality, to endeavor to make them contented with their position in life, and to aid and assist members, or their families, in case of death.”
    Section 6 provides that said corporation may hold, manage and disburse a beneficiary fund for the relief of the members, and their families, of the branches and the grand councils under the jurisdiction of the corporation, under such regulations as may be adopted by said corporation.
    Section 7 provides that such fund may be set apart—
    “ To be paid over to the families, heirs or representatives of deceased members, or such person or persons as such deceased members may, while living, have directed; and the collecting, management and disbursement of the same, as well as the person or persons to whom, and the manner and time in which the same shall be paid, on the death of a member, shall be regulated and controlled by the constitution, by-laws, rules and regulations of this corporation.”
    On December 26,1899, a certificate of membership, with the right to participate in this fund to the amount of $2,000, was issued to one Terence Reilly. The beneficiary named in the certificate was “his sister, Bridget Reilly, or such person or persons as the rules and regulations of said association shall determine.” The certificate contained the further condition that—

      “ The said member complies in the future with the laws, rules and regulations now governing the said association and fund, or that may hereafter be enacted by the supreme council to govern said association and fund; and in consideration of his right to participate in said beneficiary fund, the said member-hereby promises and agrees to keep, perform and observe all the rules and regulations of said supreme council, or its several branches for the government of its members, or said fund, which may now be in force or hereafter adopted or enacted by said supreme council.”
    On March 9, 1903, the same day that Mr. Reilly died, he indorsed upon this certificate the following statement:
    “I * * * do hereby surrender same and revoke my former direction as to payment of the beneficiary fund due at my death, and now authorize and direct such payment to be made to my sister, Ann Reilly, of Dublin, Ireland, $200; to my sister, Bridget Reilly, of Dublin, Ireland, $200; to my brother, Patrick Reilly, of New York City, $100.00, to William Brinen, Sr., of Muskegon, Michigan, $1500.00, as dependent and as trustee, as mentioned in my will of this date.”
    Mr. Brinen was a creditor of Mr. Reilly. Out of the $1,500 mentioned in this assignment, and also in the will, Mr. Brinen was to repay himself the money due him from Mr. Reilly (about $150; give $1,000 to one Kate Murphy, and $350 to one Leo Meade. Neither of these parties was in any wise related to or dependent upon Mr. Reilly, The constitution and by-laws of the association were amended in October, 1900, and limited the beneficiaries to the wife, his children, child by legal adoption, father, mother, brothers, sisters, blood relations, or persons dependent upon him for maintenance. .This provision was in force at the time of the death of Mr. Reilly. Due proofs of death were furnished.
    Defendant admits its liability, and is desirous of paying the amount to the party or parties legally entitled thereto. Plaintiff made a demand for the fund, with which the defendant refused to comply, and plaintiff brought this suit. The declaration contains three counts. The first alleged the issue of a certificate to Terence Reilly, payable upon his death to such person or persons as said Terence Reilly might, while living, have directed, and that he directed by indorsement that $1,500 of said fund be paid to plaintiff. The second count is the same as the first, except that the direction was by his last will and testament. The third count alleged the beneficiaries of Reilly to be his sisters, Bridget and Ann, and that they had assigned their claim to the plaintiff to the extent of $1,500. The third count was abandoned upon the trial. When the plaintiff offered the certificate in evidence, objection was made to its admission because it varied from that set up in the declaration. The court then allowed an amendment to the declaration, permitting plaintiff to declare upon this particular certificate. The court below held that, when the certificate was issued, Mr. Reilly had a right to designate any per son as his beneficiary, and that that right was not affected by the subsequent amendments of the constitution and by-laws, and directed a verdict for the plaintiff.

      Keena & Lightner, for appellant.

      James E. Sullivan (Nims, Hoyt, Erwin, Sessions & Vanderwerp, of counsel), for appellee.
   Grant, J.

(after stating the facts). Whether the original charter and by-laws of the defendant in force at date of the certificate contemplated that members might designate strangers or creditors as beneficiaries, we find it unnecessary to determine. The amended declaration is based solely upon the certificate of membership, and upon that plaintiff’s right of action depends. The deceased accepted a certificate naming his sister as beneficiary, and further limiting his right to thereafter name other beneficiaries “ to such person or persons as the rules and regulations of said association shall determine,” and further agreeing to comply with all the laws, rules, and regulations •of the society thereafter to be enacted. The contract is perfectly clear. It gave the defendant the authority to in the future limit the beneficiaries, should the member thereafter desire to change from his sister to other persons. Section 7 of the charter clearly confers upon the defendant the power to designate from time to time the person or persons to whom its benefit fun’ds shall be paid. After the certificate was issued to the deceased the defendant amended its constitution and by-laws so as to exclude strangers and creditors of a member as beneficiaries of this fund. The amendment is reasonable and in accord with the benevolent spirit of the association. The contract, as shown by the certificate, charter, and by-laws, said to him: “ If you wish at any time to change your beneficiary, it must be in accordance with the rules and regulations then in force.” The right of the member to at any time thereafter nominate another beneficiary was not a vested right, and was subject to the reasonable action of the defendant association. It has been held that the right to amend the laws of such association is sometimes reserved by implication. 2 Joyce on Insurance, §§ 744, 748; O’Brien v. Benevolent Legion, 81 App. Div. 1; Catholic Knights v. Kuhn, 91 Tenn. 214; Berg v. Badenser Understuetzungs Verein, 90 App. Div. 474. But here it is expressly conferred by the contract of membership. The following authorities are in point: Borgards v. Insurance Co., 79 Mich. 440; Langnecker v. Grand Lodge, A. O. U. W., 111 Wis. 279 (55 L. R. A. 185); Hall v.Accident Ass’n (Neb.),96 N.W. 170; Ross v. Modern Brotherhood of America, 120 Iowa, 692; Richmond v. Supreme Lodge, O. M. P., 100 Mo. App. 8; Wist v. Grand Lodge, A. O. U. W:, 22 Or. 271; Supreme Commandery, K. of G. R. v. Ainsworth, 71 Ala. 436.

Judgment reversed, and new trial granted.

Moore, O. J., and McAlvay, Blair, and Hooker, JJ., concurred.


author: Ostrander, J. Per Curiam.

text:
    SPIKER v. AMERICAN RELIEF SOCIETY.
    1. Judgments — Foreign Judgments — Want of Jurisdiction.
    A foreign judgment may be attacked for want of jurisdiction unless the transcript thereof affirmatively shows the existence . of jurisdiction in the court rendering the same.
    3. Corporations —Actions —Service of Procf.ss — Managing Agents.
    One who has been, but at the time of service of1 process upon him has ceased to'be, a solicitor of applications in a company which sells sick, accident, and funeral benefits, is not “a managing agent ” of such company, within the meaning of the Ohio statute authorizing service of process upon the managing agent of a foreign corporation.
    Error to Bay; Shepard, J.
    Submitted January 20, 1905.
    (Docket No. 94.)
    Decided May 22, 1905.
    Motion to modify judgment submitted July 21, 1905.
    Granted September 21, 1905.
    Assumpsit by William Spiker, by his next friend, against the American Relief Society for the amount of a judgment rendered in a foreign court. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed.

      F. P McCormick, for appellant.

      Lee E Joslyn, for appellee.
   Ostrander, J.

Plaintiff brought suit, declaring specifically upon a judgment rendered in the court of common pleas for Tuscarawas county, Ohio, in favor of William Spiker, a minor, who sued by Evelyn Spiker, his next friend, and against defendant. Defendant, pleading the general issue, gave notice that it would be shown that the Ohio court had no jurisdiction to render the judgment, because there was no service of process or notice of commencement of suit, in conformity to the mode prescribed by the statutes of Ohio; that a recital in the judgment entry “that defendant has had due legal .notice of the pendency and prayer of this action,” and a recital in the return of the sheriff that he served the defendant with the summons “by delivering personally to T. A. Lindsay, managing agent,” were both untrue in fact; that T. A. Lindsay was never an officer or managing agent for defendant, and never authorized to accept or receive for defendant service of process, nor was said Lindsay acting in any capacity for defendant when the summons was served.

Unless the transcript of the Ohio judgment affirmatively showed that the court had jurisdiction, the defendant could attack the judgment for want of jurisdiction. Wilcox v. Kassick, 2 Mich. 165; People v. Dawell, 25 Mich. 270; Shelton v. Tiffin, 6 How. (U. S.) 163. Counsel for appellee concedes this to be so. The section of the Ohio statute in question reads:

“When the defendant is a foreign corporation having a managing agent in this State, the service may be made upon such agent.”

Defendant is a Michigan corporation, and was never authorized to do business in Ohio by the officials of that State. Defendant had never designated any person or persons as its agent or agents in Ohio, upon whom process could be served, as the law of that State requires foreign companies doing business there. There was no appearance of the defendant in the Ohio court. The transcript offered in evidence shows no appearance, and counsel for plaintiff admits there was none. The transcript shows service to have been made as follows:

“ ón September 11, 1902, I served the within-named American Relief Society, by delivering personally to T. A. Lindsay, managing agent, a true and certified copy thereof, with all indorsements,thereon. The president or other chief officers not found in my county.”

The judgment entry recites:

“ The court finds that the defendant has had due, legal notice of the pendency and prayer of this action.”

The undisputed proof is that Lindsay, upon whom the service was had, had solicited applications in the place where he lived, and had received from defendant blank applications and a manual explaining the purposes of defendant. He collected the first monthly premium upon such applications as he took, and remitted that to defendant, and he retained the membership fee. He secured from 15 to 20 members. Sometimes, when a policy was issued, it was sent to Lindsay for delivery. All policies were issued at the home office. Lindsay sent the last application July 23, 1902, and remitted the last money September 3, 1902. At the time the summons was served he was not acting for defendant in any manner whatever. The court admitted the transcript in evidence, and instructed the jury that, under the evidence, plaintiff was entitled to a judgment for the amount of the Ohio judgment, with interest. It is said that the Ohio courts have so construed the statute in question that Lindsay is to be held a “managing agent” of defendant. If this is true, and under these decisions the judgment would not be, in that State, open to the attack here made upon it, the ruling of the circuit judge should be sustained.

The cases relied upon have been examined. American Express Co. v. Johnson, 17 Ohio St. 641, was a motion for leave to file a petition in error. Plaintiff in error, the American Express Co., was a foreign corporation, and the principal ground of error relied upon was the alleged insufficiency of the service of the original summons. At the time of the service the company had a general superintendent for the State, residing at Cleveland, and two or more local agents in the county of Madison, in which the action was brought. The one upon whom service was made resided at London, and kept an office there, where he received and forwarded packages for the company, and did all the business of the company usually transacted in such receiving and forwarding offices. The court held that he was a managing agent, within the meaning of the Code.

In Baltimore, etc., R. Co. v. Transportation Co., 32 Ohio St. 116, the railroad company was a foreign corporation, and service of process was made upon an alleged agent named Henry F. Heckert, who, appearing for that purpose only, moved to quash and set aside the service. The affidavit of this agent showed that his agency consisted in contracting for the transportation of freight over the railroad, and in attending to the transfer of freight to and from the connecting roads of said company, which had been shipped to or from any point on the said company’s road on through bills of lading; that no part of the company’s road or branches in Ohio extended into Hamilton county, in which the service was made. A blank printed bill of lading used by the said railroad company, introduced in evidence, had printed upon it, “ H. F. Heckert, General Agent. ” The trial court overruled the motion to set aside the service. The supreme court says of this point:

“ The court below found that Heckert was a managing agent, and we cannot say that it is proper to disturb that finding upon the evidence; and the case of American Express Co. v. Johnson, 17 Ohio St. 641, leaves little to be said upon the law relating to this question.”

Mohr & Mohr Distilling Co. v. Insurance Co., reported in 7 Wkly. Law Bul., at page 341, was tried in the superior court of Cincinnati. Both parties were foreign corporations. Jurisdiction depended upon service being made upon the defendant within the city of Cincinnati. It is said that service of a summons might be made upon a managing agent. The return of service seems to have been that it was made upon “ John P. Whiteman, agent of said Lamar Insurance Company, and the chief officer of its agency in the city of Cincinnati. No chief officer of said company found. ” It was held that this return showed service upon a managing agent, citing American Express Co. v. Johnson.

These decisions do not, we think, support the contention that Lindsay was a managing agent. Some meaning, and that a reasonable one, must be given to the word “managing.” In the absence of other authority, we think we should not assent to the rule that one who had been, but had ceased to be, a mere solicitor of applications in a company which sells sick, accident, and funeral benefits, is a managing agent of said company. For illustrative cases, see Lake Shore, etc., R. Co. v. Hunt, 39 Mich. 469; Kirby Carpenter Co. v. Trombley, 101 Mich. 447; Toledo Ice Co. v. Munger, 124 Mich. 4.

The record conclusively shows, also, that at the time of beginning this suit in this State William Spiker was more than 21 years of age. This appears from the transcript of the record of the Ohio court offered in evidence. The petition filed there is verified, and it states that “plaintiff is a minor, nineteen years of age December 5, 1901.” The petition was filed by Evelyn Spiker, his next friend and mother, September 10, 1902. The suit was begun in this State in justice’s court January 30, 1904, and in it the plaintiff is described as a minor, and the suit is begun in the name of his next friend. If Spiker was 19 years old December 5, 1901, he was 21 years old December 5, 1903. There is no other proof of age, except that the certificate, dated October 1, 1901, gives his age as eighteen years. This does not contradict the other position. Counsel for appellant urges that for this reason the transcript was not admissible in evidence without some further showing in this respect. The objection made was that the transcript did- not identify the plaintiff in the present suit as the plaintiff described in the transcript.

For the error committed in holding the Ohio judgment to be a valid judgment, the judgment below should be reversed, with costs. No new trial will be granted, but the judgment' of this court will be without prejudice to the right of the policy holder to begin another suit upon the policy, if so advised.

McAlvat, Grant, Blair, and Montgomery, JJ., concurred.

ON MOTION TO MODIFY JUDGMENT.

Per Curiam.

The opinion and judgment of this court in this case will be so modified as to grant to the plaintiff a new trial, with costs of this court to defendant. No costs of motion.


author: Per Cdriam.

text:
    GORMAN v. CALHOUN CIRCUIT JUDGE.
    1. Prohibition — Garnishment Proceeding® — Default.
    Prohibition will not lie to restrain the further prosecution of garnishment proceedings in which default and interlocutory-judgment against the garnishee defendant has been entered for want of disclosure and the cause referred to the court to determine the amount of the judgment to which plaintiff is entitled.
    2. Mandamus — Garnishment—Default.
    Mandamus will not lie to compel a circuit judge to set aside an order denying a motion to set aside a default and reference in garnishment proceedings on failure to disclose.
    Petition by John J. Gorman against Joel C. Hopkins, circuit judge of Calhoun county, for a writ of prohibition to restrain further proceedings in a garnishment suit, or for a writ of mandamus to compel respondent to vacate an order denying a motion to set aside an order of default.
    Submitted February 7, 1905.
    (Calendar No. 20,923.)
    Application denied May 22, 1905.

      Tarsney & Fitzpatrick, for relator.

      Williams & Beck, for respondent.
   Per Cdriam.

The facts in this matter, so far as necessary to an understanding of the determination by this court, are as follows: On the 14th day of September, 1904, one William I. Fell began suit in assumpsit in the Calhoun circuit by the filing of a declaration against one James N. Riley as principal defendant, and on the same day filed an affidavit for and caused a writ of garnishment to be issued against the relator as garnishee defendant, returnable at the court-house in the city of Marshall on the 3d day of October, 1904. On the 15th day of September, 1904, the writ of garnishment was served on relator at the city of Detroit. On the 21st of September relator caused notice to be given to the said William I. Fell, through his attorneys of record, of a motion made in the circuit court for the county of Calhoun for an order quashing service of the said writ of garnishment upon relator for the reason, among others, that the court had no jurisdiction, inasmuch as it appeared that the principal defendant and the garnishee defendant were not residents of the county of Calhoun, and that service upon the defendants was not within the county of Calhoun, and that service of the writ of garnishment and the affidavit therefor was had upon the garnishee defendant, 'John J. Gorman, in the county of Wayne; the relator contending that the garnishment proceedings against him were brought and prosecuted under the provisions of section 10629, 3 Comp. Laws, as amended by Act No. 60 of the Public Acts of 1901. Upon the 17th day of October, 1904, the motion to quash was overruled. Thereafter an application was made to this court for a writ of mandamus to compel the circuit judge to set aside the order overruling the motion to quash, which application was denied for the reason that mandamus was not the proper remedy, as the facts appeared in that application. On the 19th day of November, relator, through his attorneys, filed in the office of the clerk of the circuit court for the county of Calhoun, and served upon the attorneys for the plaintiff, a plea in abatement to the jurisdiction of the circuit court over the person of relator in said garnishment proceedings. On the 24th day of December, 1904, plaintiff’s attorneys served notice on relator’s attorneys that on Thursday, the 29th of December, they should ask that the default of the garnishee defendant be entered for a failure to file a disclosure, and that on presentation of the motion they should treat the plea in abatement “as an appearance in said cause, for the reason that the same is pleaded by attorney, and not in proper person, whereby the jurisdiction of the court is admitted.”

On January 3, 1905, the circuit judge entered an order that the default of the garnishee defendant, for want of disclosure and interlocutory judgment against him, be entered; referring it to the court to determine the amount of the judgment to which the plaintiff should be entitled. On the 9th day of January, relator, through his attorneys, appearing specially, moved the court for an order setting aside his default as garnishee, which said motion was denied; the said respondent, the circuit judge, holding “ that by the filing of said plea the said petitioner admitted the jurisdiction of said circuit court over his person, and admitted the jurisdiction of said circuit court in said cause, and as such garnishee defendant, and that thereafter, and within the time limit therefor, the said petitioner has not filed a disclosure in said cause in accordance with the law.”

Relator asks (1) that a writ of prohibition be issued by this court, commanding respondent to desist and refrain from further proceedings in said suit; or, (2) if the court shall not grant the said writ of prohibition, relator prays that writ of mandamus issue to respondent, commanding him to annul and set aside the order heretofore entered by him, denying relator’s motion to set aside the order of default and reference against him made and entered on the 9th day of January, 1905, and likewise directing the said circuit judge to annul and set aside the order heretofore entered by him defaulting petitioner for failure to file disclosure in said garnishment proceedings, made and entered on the 3d day of January, 1905.

Neither of the remedies applied for by the petitioner is appropriate to the case, and the application is denied, with costs.


text:
    MICHIGAN MUTUAL LIFE-INSURANCE CO. v. BASLER.
    Life Insurance — Beneficiaries — Designation — Children — Grandchildren.
    A life-insurance policy was payable to the insured’s wife, if living, or, if not, to the children of insured and his wife. Prior to insured’s death his wife, and after her, one of their two children, died. Held, that the policy was payable to the surviving child and the surviving issue of the deceased child.
    Appeal from Wayne; Rohnert, J.
    Submitted February 8, 1905.
    (Docket No. 113.)
    Decided May 22, 1905.
    Bill of interpleader by the Michigan Mutual Life-Insurance Company against Julius Basler, and Otto Miller and Ella Miller to determine the right to the proceeds of a life-insurance policy. From a decree for defendants Miller, defendant Basler appeals.
    Affirmed.

      George E. & M. A. Nichols, for appellant.

      William Wisner Taylor, for appellees.
   Moore, C. J.

On the 31st of August, 1870, the complainant company issued a $1,000 policy of insurance upon the life of Frank Basler, in which it was recited, among other things, that, in consideration “* * * and of the sum of thirty-three dollars and seventy-nine cents to them paid by Frances Basler,” they issued the policy. It provided :

"And the said Company do hereby promise and agree to pay the said sum insured at their office, in the city of Detroit, to the said assured for her sole use, if living, in conformity with the statute, and if not living to the children of the said * * * Frank and Frances Basler * * * or their guardian, for their use; or, if there be no such children surviving him, then to the executors, administrators or assigns of the said Frank Basler in sixty days after due notice and satisfactory proof of the death of the said person whose life is hereby insured as above, all indebtedness for premiums, if any, being first deducted therefrom.”

Frances Basler was the wife of Frank Basler. She died in March, 1897, leaving two children of herself and Frank Basler, namely, Julius Basler, appellant, and Martha Basler Miller. Mrs. Miller died January 22,1900, leaving two children, Otto Miller and Ella Miller, the other defendants. Frank Basler died February 23, 1902, leaving, him surviving, as his heirs, Julius Basler, a son, and Otto Miller and Ella Miller, grandchildren. Proper proofs of death were delivered to complainant, and its liability became fixed to pay $1,000 to the persons entitled thereto. Julius Basler makes claim to the entire $1,000 on the ground that he is the only surviving child of the said Frank Basler at the time of his death. Otto Miller and Ella Miller claim that, as children of Martha Basler Miller, they are entitled to $500. May 9, 1902, complainant paid to Julius Basler $500, and refused to pay any further sum, because of the claim made by Otto Miller and Ella- Miller. May 13, 1902, complainant filed a bill of interpleader for the purpose of settling the rights of the parties to the fund, and paid the money into court. A decree was entered wherein it was determined that the $500 remaining in the hands of the register in chancery, less certain costs, be paid to Julius R. Petersen, administrator of Martha Basler Miller’s estate, to be by him paid to the defendants Otto Miller and Ella Miller. From this decree Julius Basler appeals.

In considering this case, it is important to bear in mind that the policy was not issued by a fraternal society, but by a stock company. The appellant claims that the word “children,” as used in this policy or contract, means issue of the first degree, and does not and was not intended to include grandchildren, and is not and was not intended to be synonymous with “heirs,” “issue,” or words of inheritance. He insists that a true construction of his father’s intention in taking out this policy is, stated in the language of the brief:

‘ ‘ If my wife survives me, she is to have the whole of the sum insured. If not, my children, if they survive me, shall have it. If they do not, and neither of them survive me, it shall form part of my estate, and be divided according to the laws of the State of Michigan. It is my design to provide for my wife and my children, and none others, through the instrumentality of this policy.”

Counsel cite in support of this contention a good many cases, and rely particularly upon Lane v. De Mets, 59 Hun (N. Y.), 462; U. S. Trust Co. v. Insurance Co., 115 N. Y. 152; and Walsh v. Insurance Co., 133 N. Y. 408.

On the part of the appellees it is insisted:

“The policy is to be construed as a contract made between the assured [Mrs. Basler] and the company for the benefit of the party or parties named therein as beneficiary or beneficiaries, * * * which vests in the beneficiary certain rights, which neither the insured nor the insurer have power to destroy or abridge without the consent of the given beneficiary or beneficiaries.”

That “upon the death of Frances Basler the right to payment became vested in her daughter, Martha Basler Miller, and in her son, Julius Basler, brother and sister. This vested interest in the policy was so vested in Martha Basler Miller that it became part of her estate upon her death, and therefore passed — she dying intestate — to her personal representatives.” Counsel cite in support of this contention Continental Life-Ins. Co. v. Palmer, 42 Conn. 60; Phœnix Mut. Life-Ins. Co. v. Dunham, 46 Conn. 79; Connecticut Mut. Life-Ins. Co. v. Fish, 59 N. H. 126; Smith v. Insurance Co., 68 N. H. 405; Millard v. Brayton, 177 Mass. 533 (52 L. R. A. 117); In re Estate of Conrad, 89 Iowa, 396; and the case cited by counsel for appellant ( U. S. Trust Co. v. Insurance Co., 115 N. Y. 152), and Michigan cases which will be mentioned later.

An examination of the many cases cited by counsel shows a want of uniformity in the decisions. It would profit no one to attempt to analyze and harmonize these varying decisions. While the precise question involved here has not been passed upon by this court, we think the principle for which the appellees contend has been established as stated by the trial judge in Voss v. Insurance Co., 119 Mich. 161 (44 L. R. A. 689). See, also, Lockwood v. Insurance Co., 108 Mich. 334; Voss v. Insurance Co., 131 Mich. 597.

The decree is affirmed, with costs.

Carpenter, McAlvay, Grant, and Blair, JJ., concurred. •


text:
    SANDERS v. DODGE.
    Administrators — Indebtedness to Estate — Insolvency—Liability on Bond.
    An administrator is not liable on his bond for the amount owing by him to his intestate, where, at the time of his appointment he was insolvent, and so continued during the whole period of administration. Section 9433, 3 Comp. Laws.
    Error to Washtenaw; Kinne, J.
    Submitted February 9, 1905.
    (Docket No. 41.)
    Decided May 22, 1905.
    S. Eugene Dodge presented his final account as administrator of the estate of Susan S. Dodge, deceased, which was allowed in the probate court, and Caroline H. Sanders, guardian of Josephine S. and Susan E. Dodge, appealed to the circuit court. There was judgment affirming the order of the probate court, and contestant brings error.
    Affirmed.

      John F. Lawrence and Arthur Brown (Fdson JR. Sunderland, of counsel), for appellant.

      B. M. Thompson and John P. Kirk, for appellee.
   Moore, C. J.

Susan S. Dodge died, leaving a husband and two minor children as her only heirs at law. S. Eugene Dodge, the husband, was appointed administrator of his wife’s estate on June 24, 1901, gave a bond, and entered upon the duties of his trust. Among the items in the inventory which he filed as such administrator was his own note for $4,224.50, and payable to his wife one year from its date, December 4,1899. The final account of the administrator was allowed March 13, 1903, and the administrator was allowed to report said note as uncollectible. From this order of the probate court an appeal was taken. The case was tried before the circuit judge, who found, as a matter of fact, that at the time when S. Eugene Dodge was appointed administrator he was pecuniarily irresponsible; that at no time since his appointment could this note, or any part of it, have been collected; and that during all of that period he was wholly insolvent. He further found, as a matter of law, that the order of the probate court should be affirmed. The case is brought here by writ of error.

The finding of the circuit judge that during the entire time of his administration the administrator was insolvent is abundantly borne out by the record. It discloses that the note was given for money borrowed by Mr. Dodge to enable him to purchase an interest in the business of his father, which business was afterwards conducted in the name of S. H. Dodge & Son. S. Eugene Dodge owed this firm a large sum of money, and the firm itself failed January 1, 1903. The claim of appellants is:

“We contend, on principle as well as on authority, that, when a debtor is appointed the administrator of his creditor, the debt at once becomes realized assets in his hands, to be duly administered by him, and this irrespective of his own financial condition, or of the efforts he may or may not have made to collect it.”

It is their claim that, though Mr. Dodge had no means with which to pay this debt, because of the condition of the law the moment he became administrator he must be treated as having actually received the money, and, if he does not account for it, the sureties upon the administrator’s bond are liable. And they cite as sustaining that position Kinney v. Ensign, 18 Pick. (Mass.) 232; Stevens v. Gaylord, 11 Mass. 256; Chapin v. Waters, 110 Mass. 195; Tarbell v. Jewett, 129 Mass. 460; Kelsey v. Smith, 1 How. (Miss.) 68; Judge of Probate v. Sulloway, 68 N. H. 511 (49 L. R. A. 347); and many other cases. It may be said of many of the cases cited by counsel for appellant that they sustain the position for which they contend. We do not think, however, this is true of the case of Crow v. Conant, 90 Mich. 247, upon which they place great reliance; making therefrom a quotation contained in the opinion from Kinney v. Ensign, supra. Justice Grant, who wrote the opinion, quoted all he deemed necessary for the purposes of that case, but for the purposes of this case it may be better to quote more at length. Justice Shaw wrote, among other things, as follows:

“The point mainly relied on for the defendant is that Austin Kinney, the plaintiff, being himself debtor on the personal security for which this mortgage was given, when he became administrator of the estate of his creditor he became liable to account for this debt in his administration account; that the sureties on his administration bond, being responsible for his whole administration account, would be responsible for such debt, and so the debt was to be considered as absolutely paid and extinguished, and the mortgage thereby de facto discharged,
“But in equity this ground cannot be maintained. * * * On technical grounds, as well as on considerations of policy, an administrator is not permitted to show that he could not collect a debt due from himself. But this is in the nature of an estoppel, and it is a well-settled rule of strict law that, although a party is bound by an estoppel as of a fact proved or admitted, yet it shall not be taken as a substantial fact, from which other facts can be inferred. Proprietors of Monumoi Great Beach v. Rogers, 1 Mass. 159. So, in pleading, a party is held to admit all facts not traversed, but it is only for the determination of the issue in which such pleadings terminate. Such admission cannot be used elsewhere as a fact from which other facts may be inferred. Or the holding the fact of a debtor taking administration upon the estate of his creditor, to be a payment, may be deemed a legal fiction, adopted for purposes of justice and convenience, as well as from considerations of policy, and calculated generally to promote justice, but such a legal fiction will never be allowed to go so far as to work wrong and injustice.
“ In the present case there is no necessity to consider Austin Kinney’s debt to Parley as paid by his taking administration. Even though it might be a right on the part of the creditors and heirs of Parley to require Austin, the administrator, to credit his debt in his administration account, they were not bound to do so. It was a right they might waive. In point of fact, it has not been so accounted for. Indeed, it would have been highly inequitable to do so, when the effect would probably be to charge the sureties of the administrator with the amount, and to give the whole benefit to the respondent, who had purchased the equity of redemption at a sheriff’s sale subject to this very mortgage.”

In the case of Crow v. Conant it was claimed, as it is claimed here, that the debt of the executor, Nichols, must be treated as cash in his hands, and as such accounted for by him; and it was claimed this had the effect of discharging the mortgage, the foreclosing of which it was sought to enjoin. The court declined to take that view, and held the mortgage might be foreclosed. So far as the case is an authority upon the question here involved, it is not in favor of the appellant.

We have a statute which indicates what shall be done by an administrator after his appointment. He must give a bond. Section 9311, 3 Comp. Laws. He must return into the probate court an inventory. Section 9348, 3 Comp. Laws. He must have the property appraised. Section 9349. The statute provides with what property he shall be chargeable. Section 9433 reads:

“No executor or administrator shall be accountable for any debts due to the deceased, if it shall appear that they remain uncollected without his fault.”

If the note in question had been given by a third party, it would not be claimed, under the facts disclosed by the record, that the administrator would be required to account for the amount thereof. Because of the fact that thé administrator is the debtor, shall we read into the statute a provision which shall 'make him accountable ? The precise question has never been before this court. It has, however, been presented in other courts. In Nebraska there is a provision of the statute reading like our own. In construing this statute in Howell v. Anderson, 61 L. R. A. 313 (66 Neb. 575), Justice Barnes, writing for the court, said:

“The Massachusetts rule, as we will call it for convenience, is based on a legal fiction, and the presumption that all men are solvent and able to pay their obligations. It was but a short cut to say that one who was an administrator could not sue himself, and therefore he would be required to account to the estate for his individual debt as so much cash. It was an easy way of solving a difficult problem, and one which we fully approve of, where the fact of insolvency is not satisfactorily made to appear. In case the administrator was solvent at the time of his appointment, or any time during the administration of his office, and before his final settlement and discharge, he should be required to pay over in cash the amount of his antecedent debt. In such a case the rule contended for by plaintiffs is a salutary one. It results in no hardship to any one, and for that reason should be invoked and enforced. But it seems to us that this rule should have no application where it is made to appear that the administrator was wholly insolvent when appointed, while acting, and at the time of settlement. The defendant in this case filed his report in response to the citation, and brought his individual note into court, together with the other uncollectible claims due the estate, and turned them over to the county judge. As the estate had not been fully administered, it was the duty of the county judge to appoint an administrator de bonis non, into whose hands the administrator’s note, as well as the others uncollected and unconverted, would go. The result to the estate would have been the same had another person than the defendant been appointed administrator. The estate has in no wise suffered by any act of his subsequent to his appointment. It appears beyond question that at the time the defendant was appointed administrator of Howell’s estate he was wholly insolvent; that he remained in such insolvent condition during the entire time that he served as such administrator, and was insolvent at the time of his resignation and proposed settlement; that by reason of his condition it was at all times impossible for him to pay the antecedent debt he owed to the estate. Section 279, chap. 23', Comp. Stat. [1901], provides that ‘no executor or administrator shall be accountable for any debts due to the deceased if it shall appear that they remain uncollected without his fault.’ There is no reason why the antecedent debt of the administrator, where it is at all times uncollectible, and it is impossible for him to pay it, should be treated any different from any other uncollectible debt due the estate. The defendant in this case delivered up to the court his own uncollectible note, which came into his possession as administrator of the estate, and asked to have credited thereupon his commissions, amounting to $134.07. If he had not owed the estate this antecedent debt, he would have been entitled to withdraw from the assets thereof the amount above stated. It follows that his appointment, instead of reducing the available assets of the estate, resulted in their increase by the full amount of his commission. Instead of taking anything from the estate, he contributed his services to it gratuitously, and it was saved the expense that would otherwise have been paid to another administrator. It is unfortunate that the estate should lose the balance due upon Anderson’s note, but if we should hold that this balance should be treated as cash in his hands, and make an order requiring him to pay it over, the result of such order would be to require Anderson’s sureties to pay the antecedent debt he owed Howell, which could not be collected at any time during Howell’s lifetime, and has at all times since that date remained absolutely uncollectible. By adhering to this legal fiction, we would require Anderson’s sureties to take $700 from their pockets and pay it over to Howell’s heirs on account of an unfortunate investment made by him in his lifetime, and impose upon them a liability upon their bond which they never contracted. Their agreement was that Anderson was an honest, capable, and upright man, and would discharge his duties as administrator of Howell’s estate properly; in other words, that he would account for all of the assets thereof that came into his hands, and pay over all the moneys collected for and on behalf of the estate to his successor or other proper authority. They never covenanted that Anderson was solvent and able to pay his antecedent debts. The sureties on his bond did not agree to convert Anderson’s worthless note into cash, or create something out of nothing. Legal fictions should only be resorted to for the purpose of preventing a failure of justice, and when they would result in an unjust and inequitable judgment they should never be invoked.
“ The later cases hold that where the administrator or executor is shown to have been insolvent at the time of his appointment, during the incumbency of his office, and at the time of his discharge, his bondsmen are not liable for his individual debt. Estate of Walker, 125 Cal. 242; Baucus v. Stover, 89 N. Y. 1, affirmed in 107 N. Y. 624; Keegan v. Smith, 39 N. Y. Supp. 826; Re Georgi, 21 Misc. Rep. 419, 47 N. Y. Supp.1061; McCarty v. Frazer, 62 Mo. 263; Harker v. Irick, 10 N. J. Eq. 269; Rader v. Yeargin, 85 Tenn. 486; State, ex rel. McClamrock, v. Gregory, 119 Ind. 503; Condit v. Winslow, 106 Ind. 142.
“In State, ex rel. McClamrock, v. Gregory, the court uses the following language:
‘“One question which seems to have been overlooked on the trial of the cause was the financial condition of Levin T. Miller, the administrator, during the period of his administration. The money collected by him while professing to act as the agent of the administrator in Missouri, and for which he had not accounted when he became administrator, was a claim in favor of his trust, which he should have inventoried and charged himself with; and if, by the use of due diligence, all or any part of the claim could have been saved to the estate, his sureties are therewith chargeable, but, if he was hopelessly insolvent, they do not become liable therefor, the burden as to the question of insolvency being on the administrator and his sureties.’
“Further on in the opinion the court says;
“ ‘The debt of the administrator is to be accounted for as other debts or assets, and he may show his insolvency during the period of administration in discharge of his official liability.’
‘ ‘ Citing 2 Woerner on American Law of Administration, p. 654, § 311; Griffith v. Chew, 8 Serg. & R. 17; Eichelberger v. Morris, 6 Watts (Pa.), 42; Tarhell v. Jewett, 129 Mass. 457; McCarty v. Frazer, 62 Mo. 263. There being no direct statutory provision upon the question in this State, there seems to be no reason why the above rule should not be adopted. The recent text-writers recognize this rule to be in force generally at this time. Croswell on Executors & Administrators, p. 243, says:
“ ‘ In most States, however, by statutory provision, it is enacted that the appointment of a debtor as executor or administrator does not operate as an extinguishment of the debt, but it is treated as any other debt owing to the estate, and if it can be collected (i. e., if the executor or administrator is solvent), then he is held to accountf or it as part of the assets. In other States the statutes, while not extinguishing the debt, treat it as cash in the hands of the executor or administrator, just as the equitable rule above stated does. In such a case, if the executor or administrator is insolvent during the period of administration, the debt is not charged as assets, but considered as an ordinary uncollectible debt.’
“In Dame on Administration, § 189, we find the following:
“ ‘ It is a well-established rule of law, running back even before the Revolution, that an executor or administrator is considered as having paid the debts due from him to the estate, and as actually having in his possession that much more cash. If the personal representative is insolvent, the courts, in the interests of all concerned, modify this rule somewhat. He still charges himself with the amount of his debt, but it does not make it actually money. The law does not require impossibilities, and there is no more reason why he should be considered as having paid what he was utterly unable to pay, than any other creditor. He is held liable to the estate to the extent of his ability to pay the same at any time during administration.
“The text above quoted is supported by the case of Lyon v. Osgood, 58 Vt. 707. We think this is the better rule, and we therefore hold that where one is indebted to a deceased person, and is afterwards appointed administrator of his estate, and the fact is shown that when so appointed he was hopelessly insolvent, was so during all of the time of his administration, and remained in that condition up to and including the date of his settlement as administrator, he should be permitted to turn over the evidence of his uncollectible debt to his successor or other proper authority, and be discharged from his official liability therefor.”

This opinion cites a long list of very respectable authorities. Others are gathered in the note to the case. A like ruling was rendered in Buckel v. Smith’s Adm’r, 26 Ky. Law Rep. 991, in which several cases are cited. These cases are well reasoned and appeal to our sense of justice. We prefer to follow them instead of the other line of cases.

Judgment is affirmed.

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