text:
    FRIEDENWALD v. WELCH.
    1. Brokers —Commissions —Time for Performance— Theatrical Broker.
    It is a well established rule of law that, when no time is fixed, a broker is entitled to a reasonable time in which to get results, and the principal cannot revoke the authority within that time unless it is done in good faith and not to esoape paying commissions.

      % Same — Theatres and Shows —Variation from Contract-
    Terms.
    Where an actor authorized a theatrioal broker to secure him employment at $550 a week, at five per cent, commission, and the actor secured employment through the efforts of the broker at $500 a week, without taking any steps to revoke the broker’s authority, an action for commissions would lie notwithstanding the change in terms.
    Error to Wayne; Murphy, J.
    Submitted January 21, 1913.
    (Docket No. 8.)
    Decided March 20, 1913.
    Assumpsit by Norman Friedenwald against Joe Welch for broker’s commissions. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.

      George W. Bates, for appellant.
    N. Calvin Bigelow and Henry C. L. Forler, for appellee.

       Performance of oontract by real estate broker to find a purchaser or effect an exchange of his principal’s property, see note in 44 L. R. A. 593.

   Kuhn, J.

The plaintiff is a theatrical broker in the city of Chicago. The defendant is an actor, to whom plaintiff introduced himself, and asked him if he desired to secure employment in that city. Defendant said that he did, and quoted him a price of $550 per week, and it was agreed that plaintiff was to receive 5 per cent, commission for his services. The defendant says that the next day plaintiff called him by telephone, and told him that he had secured contracts, and to call at his office. Upon calling at Friedenwald’s office, contracts calling for $400 were submitted to him, which he refused, and said he would take $550 and nothing else. A day or two later Friedenwald met Welch at the office of Mr. Nash, the agent for a theatrical circuit, to whom Friedenwald had introduced Welch, and contracts were made between Nash and Welch which resulted in Welch playing for four weeks at $500 per week. Welch had met Nash the evening before, and made the arrangement himself which resulted in these contracts. It is the claim of the plaintiff that the contracts were secured through his instrumentality, and that his authority to act for Welch was not withdrawn or suspended. The defendant’s claim is that the contract was terminated by the failure of the plaintiff to perform it, and that he was not the procuring cause of the contracts which were entered into; that, when Friedenwald did not get a contract for $550, he was then at liberty to undertake the negotiations himself, and to make such contracts as he desired, without any liability to Friedenwald.

The circuit judge was of the opinion that, it not appearing that Welch had dismissed Friedenwald while the negotiations were being carried on, the plaintiff was entitled to recover, and directed a verdict in his favor.

Error is assigned because of the charge of the court, and counsel urge that a verdict should have been directed for the defendant. From an examination of the testimony of the defendant himself, it conclusively appears that at no time previous to the closing of the contracts with Nash did he withdraw or suspend the authority he had given Friedenwald to endeavor to get him employment. While it is true that his first effort to secure a contract did not result in getting what was satisfactory to Welch, the latter did not intimate at the time the offer was submitted to him that he did not desire Friedenwald to do anything more.

It is a well-established rule of law that, when no time is agreed upon, a broker is entitled to a reasonable time in which to get results, and the principal cannot even revoke the authority within that time, unless it is done in good faith, and not to escape paying commissions. Mechem on Agency, § 968.

The fact that the contract entered into was for less than the amount originally demanded would not result in the broker losing his commission. The rule is stated in 19 Cyc. p. 249, as follows:

“If a broker has brought the parties together and as a result they conclude a contract, he is not deprived of his right to a commission by the fact that the contract so concluded differs in terms from the one which he was authorized to negotiate.”

See, also, Prindle v. Allen, 164 Mich. 553 (129 N. W. 695), and the cases therein cited.

The record conclusively shows that Friedenwald brought the parties together; that he tried to get contracts; that as a result of the negotiations Welch himself closed the contracts without revoking the authority of Friedenwald. We are of the opinion that the circuit judge was correct in his conclusion of law, and properly directed a verdict for the plaintiff. The judgment is therefore affirmed.

Steere, C. J., and Moore, McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    ECONOMY POWER CO. v. DASKAM.
    Taxation — Mortgages—Mortgage Tax — Specific Tax.
    Where a Michigan corporation executed a blanket trust mortgage of $5,500,000 securing bonds which were only partly issued prior to January 1, 1912, when the specific mortgage tax became effective (Act No. 91, Pub. Acts 1911), and thereafter issued more bonds and increased its mortgage indebtedness in pursuance of provisions in the trust instrument, on the basis of other property purchased, it was not entitled to have a supplemental instrument, reciting the original trust arrangement and covering the subsequently acquired property, placed on record without paying the entire tax on the whole amount of bonds issued.
    Certiorari to Calhoun; North, J.
    Submitted February 18, 1913.
    (Calendar No. 25,436.)
    Decided March 20, 1913.
    Mandamus by the Economy Power Company against C. Howard Baskam, register of deeds of Calhoun county, to compel respondent to receive for record a mortgage. The lower court refused the writ. Relator brings certiorari.
    Affirmed.

      George W. Mechem and A. C. McTtvaine, for relator.

      Grant Fellows, Attorney General, Edward Waer, Assistant Attorney General, and Robert H. Kirschman, Prosecuting Attorney, for respondent.
    Relator reviews by certiorari an order made by the circuit judge of Calhoun county refusing to issue a writ of mandamus against respondent.
    The relator is a Michigan corporation. On February 11,1911, it duly executed a mortgage to Harris Trust & Savings Bank of Chicago, 111., a foreign corporation, as trustee for bondholders. The mortgage was given to secure payment of all bonds issued or to be issued thereunder. The limit of the amount of bonds to be issued was fixed at $5,500,000, except with the consent of the mortgagor and the holders of all the bonds issued and outstanding, when an increased issue might be authorized. The mortgage provides for the immediate issue and delivery to the mortgagor of bonds to the amount of #1,250,000, the balance to be issued from time to time thereafter upon the basis of 90% of the cost of the acquisition of property, the construction, completion, extension, or improvement of facilities or for the improvement and maintenance of service. Up to January 1, 1912, bonds to the amount of $1,250,000 only were issued. Subsequent to January 1, 1912, and before November 6, 1912, bonds were issued in the further sum of $289,000. The instrument covered certain described real estate in three counties — Iosco, Kalamazoo, and Genesee. It also covered—
    “All of the estate and properties, real, personal and mixed, rights, privileges, franchises and choses in action of every nature and kind and wheresoever situate now or hereafter owned or possessed or belonging to the company, or to which it is or may or might or could now or at any time hereafter be in any manner entitled in law or in equity.”
    This mortgage was duly recorded in the three counties named upon February 17, 1911. On November 6, 1912, relator having acquired some real estate in the county of Calhoun, and desiring to place the same specifically under the mortgage, as by its .terms was required, it tendered to respondent the original mortgage, and a supplemental instrument, particularly describing and conveying the real estate acquired by it in Calhoun county, for record; Respondent refused to record the instruments or either of them until the relator had complied with the provisions of Act No. 91 of the Public Acts of 1911.
    The applicable portions of said act requiring construction are as follows:

      “Sec. 2. A tax of fifty cents for each one hundred dollars and each remaining major fraction thereof of the principal debt or obligation which is, or under any contingency may be, secured by a mortgage upon real property situated within this State recorded on or after the first day of January, 1912, is hereby imposed on each such mortgage and shall be collected and paid as hereinafter provided. * * *
    ‘ ‘ Sec. 3. The tax imposed by this act shall be paid to and collected by the treasurer of the county where such mortgage is first presented for record, in the manner following : Before said mortgage is received by the register of deeds for recording it shall be presented to the county treasurer, who shall, as one of his official duties, compute and collect the taxes due thereon, as provided by this act, and shall certify on said mortgage the amount secured thereby and the amount of taxes received by him. Said certificate shall be recorded by the register of deeds as a part of the record of said mortgage.”
    “ Sec. 5. In case of mortgages made in trust to secure payment of bonds or obligations issued or to be issued thereafter, if only a partial amount of the indebtedness has been advanced thereon at the time of presentation for record such mortgage shall, at the end thereof, contain a sworn statement of the amounts advanced thereon and secured thereby, and the tax herein provided shall be computed on that basis. When a further amount is advanced thereon or becomes secured thereby the mortgagee shall immediately present to the county treasurer and file with the recording officer where such mortgage was first recorded a statement of the amount about to be further advanced or become further secured, and the tax on such amount shall thereupon become due and payable on such amount about to be advanced or secured, and it shall be paid in the same manner as to the original tax thereon as in this act provided. * * *
    “ Seo. 6. The owner of any mortgage which is now, or which may be recorded before this act takes effect, may present to the county treasurer of the county in which said property is situated an affidavit setting forth the mortgage and the place of record thereof and the amount of principal secured thereby which is unpaid, and may pay a like tax of one-half of one per cent, upon such amount, and thereafter said mortgage for the purpose of taxation is to be considered and treated the same as other mortgages provided for in this act. Said affidavit shall be recorded in the office of the register of deeds and shall he prima facie proof of the amount of the principal unpaid on said mortgage. Mortgages given prior to January first, nineteen hundred twelve, and on which the registry tax provided for in this act shall not be paid, shall remain under the present ad valorem system of taxation and shall be assessed and taxed under the present law.”
    “ Sec. 8. No mortgage or land contract, which is subject to the tax imposed by this act shall be released, enforced, discharged of record or received in evidence in any action or proceeding at law or in equity, nor shall any assignment of or agreement extending any such mortgage or land contract be recorded until the tax imposed thereon by this act shall have been paid as in this act provided. No judgment or final order in any action or proceeding at law or in equity shall be made for the foreclosure or enforcement of any such mortgage or land contract, which is subject to the tax imposed by this act, or any debt or obligation secured thereby, until the tax imposed by this act shall have been paid as provided in this act. The certificate of the county treasurer in form as hereinafter provided, shall be prima facie evidence of the payment of the tax.”
    Section 9 provides that, where a mortgage cpvers property in more than one county, the tax shall be paid only in the county where the instrument is first presented for record. Section 10 repeals all acts and parts of acts in contravention with the provisions of this act.
   Brooke, J.

(after stating the facts). The history of this legislation is too well known to require much comment. The old or ad valorem system of taxation of mortgages was believed to be unsound economically as well as inefficient in operation. It seemed to result in many instances in the imposition of a double tax upon the same property. While doubtless intended as a relief to the borrower, its tendency seemed to be to increase his burden, and it placed domestic lenders of money upon real estate security at a distinct disadvantage when compared with the nonresident lender, in whose hands the mortgage escaped taxation.

Primarily the legislation was doubtless enacted to correct an alleged economic fallacy, and secondarily to place foreign and domestic loaners of money upon an equal footing. There can be no doubt that, if relator and the Harris Trust & Savings Bank (the mortgagee-trustee) choose to rest their respective rights upon the original instrument and the record thereof in the three counties named, they have a right under section 6 of the statute to do so. The mortgage would then remain under the ad valorem system of taxation, and, the mortgagee-trustee being a foreign corporation, no tax of any nature could be imposed or collected thereon. This, however, it seems is impracticable. The original mortgage contemplates the acquisition by the mortgagor of real estate and franchises outside the three counties named, but within the State. It further contemplates the subjection of such after acquired property to the lien of the mortgage and the issuance of additional bonds upon the faith of such added security. While the amount of bonds to be issued under the mortgage is presently limited to $5,500,000, this amount can be indefinitely increased by the joint action of the mortgagor and the bondholders. So that, if we understand the contention of relator, we have here an instrument which, at the time of its record, and up to January 1, 1912, stood as security for $1,250,000 only, but which through the acquisition of other property and the issuance of further bonds may in the future be enlarged to any indefinite amount without the payment of the tax imposed by the statute.

We are clearly of the opinion that this position is not tenable. To so* hold would be to enable this relator to acquire real estate and other property without limit, to borrow money thereon and escape the payment, while all others in performing the same acts since January 1,1912, would be subjected to the payment of the impost. Every such act of the relator is in effect the making of a new loan. It acquires property by purchase and borrows money thereon. The fact that the original mortgage was recorded prior to the passage of the act can surely produce no such anomalous situation. Whenever (after January 1, 1912) it becomes necessary for relator, in order to subject newly-acquired property to the lien of the mortgage, and to give notice thereof to the world through registration, we are of opinion that such registration may be had only upon compliance with the terms of the act. This would certainly compel the payment of the specified tax upon all issues subsequent to that date. The contention of relator that it is, in any event, entitled to the registration of the supplemental instrument, we think unsound. The recital in that instrument describing the original mortgage and the record thereof, if recorded in Calhoun county, would (probably) be sufficient notice to the world of the character and extent of the lien imposed by the original instrument.

Upon this point relator’s contention is based upon the language found in section 3, which provides:

“Such certificate shall not be required with any mortgage made to indemnify the mortgagee as surety, or to secure the performance by the mortgagor of any contract which does not require the payment of a specified sum of money, nor with any mortgage made to correct or perfect a mortgage previously recorded, on which the charges imposed by this act have been paid, if no new or additional indebtedness is created thereby.”

Two answers present themselves to this contention. First, the supplemental instrument cannot be construed as in any true sense correcting or perfecting the original mortgage; and, second, by means of the second instrument a new or additional indebtedness is created. But why should relator be entitled to record upon payment of the tax upon the amount of the bond issue since January 1, 1912, only ? By withholding the instrument from all further record, it is entitled to issue bonds thereunder, and in accordance with its terms, and as to such issues no tax can be demanded. But if it, for any reason, desires to record the same in a new county, why should it not comply with the terms of the statute, and pay the tax upon the whole amount issued at the timé the instrument is presented for record ? It may he said that as to the $1,-250,000 issued prior to January 1, 1912, the relator, not having paid the tax, has indicated an intention to kéep the mortgage under the ad valorem system, and that, as to that amount, it should be relieved of the tax. It cannot be denied that such a result would be equitable, for it may be supposed that, when the original mortgage was executed, relator made its financial engagements upon the basis of the law as it then stood, but' the State in the exercise of its sovereign powers may, at will, change its methods of taxation. Moreover, the statute will be searched in vain for any authority for such action. Section 2 of the act imposes the tax, without exception, upon all mortgages recorded on or after the 1st day of January, 1912. The instruments here tendered for record come clearly and literally within the designation. Even though one of them has been heretofore recorded, they are now to be recorded, and it is that act which under the statute imposes the tax. Relator is not obliged to tender the instruments for record; it does so voluntarily.

A further reason for this view is presented in the fact that the newly-acquired property sought to be subjected to the lien becomes by virtue of the supplemental instrument (and perhaps by the original mortgage as well) security for the whole debt, as well that portion incurred prior to January 1,1912, as the portion incurred subsequent to that date.

The writ is dismissed.

Steers, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


text:
    BAIRD v. SALNAVE.
    1. Bills and Notes — Alteration.
    An alteration in a promissory note made after execution defeats an action on the instrument.
    2. Same.
    ■ It was not erroneous, in an action on a note that defendants claimed had been altered by increasing the amount from $400 to $420, to instruct the jury that if the defendants had paid $20, and such amount was by mistake included in the total, they might allow that sum as a payment and return a verdict for $400, with interest, where the jury found for plaintiff on the question of alteration and rendered a verdict of $400, defendants alone appealing.
    Error to Van Burén; Des Voignes, J.
    Submitted January 29, 1913.
    (Docket No. 72.)
    Decided March 20, 1913.
    A.ssumpsit by A. F. Baird against Oliver R. Salnave and another upon a promissory note. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      W. J. Barnard, for appellants.

      Thomas J. Cavanaugh, for appellee.
   Brooke, J.

Plaintiff, who is the father of defendant Lottie Salnave, sues his daughter and her husband upon a promissory note, a copy of which follows:

“Sale Note:
“Bangor, Mich., April 1, 1911.
“ One year after date we jointly and severally as principal promise to pay to the order of A. F. Baird the sum of four hundred and twenty ($420) dollars, to draw interest at the rate of 6% per annum from date and attorney’s fees if suit is instituted on this note. Value received.
Payable at residence of A. F. Baird.
“ Oliver R. Salnave.
“Lottie Salnave.”

The defendants pleaded the general issue, and denied the execution of the instrument under oath. Upon the trial, both defendants admitted that they had signed the note, but claimed that, when it was signed by them, the amount specified by both words and figures was $400, and that it had been changed after execution by the insertion of the words “ and twenty,” and by placing the figure “2” over the cipher next the “4.” It was further claimed by defendants that the time of maturity had been changed. Defendant Oliver R. Salnave testified:

I claim the note has been altered and changed. It was to be a three-year note. I didn’t read the three years in particular. I was in a hurry when I signed it. # * * I don’t think the note said ‘ one year after date ’ when I read it. * * * There was only $400 written in there, no $20 or anything of that kind; no, sir. I think it was changed from $400 to $420 after I signed it.”

This note was given by defendants to plaintiff as the purchase price of a span of horses, a wagon, and harness.

It was further claimed by defendants that, upon the day the note was given, the sum of $20 was paid by defendant Lottie Salnave to her father, the plaintiff. Plaintiff denied receiving the $20 in question, and denied that the note had been changed in any particular after execution.

The case was submitted to the jury under a charge which plainly instructed them that the plaintiff could not recover at all if they found that the note had been altered after execution so as to raise the amount or change the time of payment. This instruction was warranted under the decisions in this State. See Holmes v. Trumper, 22 Mich. 427 (7 Am. Rep. 661); Wait v. Pomeroy, 20 Mich. 425 (4 Am. Rep. 395); Bradley v. Mann, 37 Mich. 1; First Nat. Bank v. Carter, 138 Mich. 421 (101 N. W. 585).

The court further charged:

“ Even though you should find that the defendant did pay $20 to apply on the horses at the time of the making of the note, this would not, standing alone, authorize you to deny the plaintiff relief in this case, unless you find that, after the note was signed, the plaintiff changed the consideration and added thereto, in the body thereof, the words ‘and twenty,’because, if the defendants signed the note with these words in, then they would be liable, although if you should find that $20 was paid and it was intended that it should apply upon the purchase price of the horses, wagon, and harness, but by mistake or inadvertence it was not taken into consideration when the note was made, you would have the right to allow defendants this payment and render a verdict for the plaintiff for the sum of $400, with interest thereon at 6 per cent, from April 1, 1911.”

Error is particularly assigned upon this portion of the charge; it being contended by defendants that the court thereby submitted to the jury a theory of the case which had been advanced by neither party. We are unable to agree with this view. It is true that the plaintiff denied the receipt of the $20 and the alteration of the note, while the defendants asserted the payment of the $20 and that the note had been altered.

Under the instruction above quoted, the jury found against the plaintiff upon the first proposition, and against the defendant upon the latter, and returned a verdict in favor of plaintiff for $400 and interest. We are of opinion that the testimony warranted both findings.

We are at a loss to understand exactly why defendants appeal from this judgment. They admit that they owe plaintiff $400; and that sum, with interest, is exactly the amount they are by this judgment condemned to pay. It may be said that the question of costs is involved. Defendants had it in their power to protect themselves against the payment of costs by depositing in court the $400 for which they claim the note should have been made. By their verdict the jury have determined that there was no alteration in the note after it was signed; therefore, that contention of defendants is not upheld. It was their duty, then, if they desired to avoid the payment of costs, to have followed the course indicated.

Error is assigned upon other portions of the charge and upon the exclusion of certain testimony. These assignments have been examined, but are without merit.

The judgment is affirmed.

Steere, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Moore, C. J.

text:
    KOZLOWSKI v. DETROIT UNITED RAILWAY.
    Trial — Rebuttal—Evidence—Order op Proof.
    In an action for injuries sustained by defendant’s trolley pole falling on plaintiff, in the highway, it was not error to permit the plaintiff, who had offered no direct evidence of negligence, to show on rebuttal that the falling of the pole was not due, as defendant’s evidence had tended to show, to the fact that the arm of a steam shovel caught a span wire and broke the pole; it was within the court’s discretion to permit the introduction on rebuttal of evidence that should have been offered as a part of plaintiff’s case.
    Error to Oakland; Smith, J.
    Submitted January 30, 1913.
    (Docket No. 75.)
    Decided March 20, 1913.
    Case by Walter Kozlowski against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      James H. Lynch, for appellant.

      Kléber P. Rockwell and Glenn O. Gillespie, for appellee.
   Moore, C. J.

The plaintiff, while riding on Woodward avenue in a market wagon, was injured by the falling upon him of a cedar pole used to carry a trolley wire of the defendant’s road. The plaintiff sued the company and recovered a judgment for $378. The case is brought here by writ of error.

The plaintiff introduced evidence as to how the accident happened, and the extent of the injury, and it was his claim that by this testimony defendant was shown to be negligent. It was the claim of defendant that the pole fell, not because it was of insufficient strength, but because the arm of a steam shovel came in contact with a span wire and caused the pole to break and fall, causing other poles to fall. Testimony was given tending to support this claim. Plaintiff then introduced testimony tending to show that the accident was not caused by the steam shovel. Counsel say (we quote from the briefs):

“It was the duty of plaintiff, if he wished to introduce testimony negativing the liability of the steam shovel, to have introduced such testimony on his case in chief. I have been unable to find a case in which this precise point is raised. The rule of law is, however, very clearly stated ‘ that when the damages arose from one of two causes, for one of which the defendant is responsible and for the other of which it is not responsible, the plaintiff must fail, if his evidence does not show that the damages were produced by the former cause, and he must fail also if it is just as probable that they were caused by one as the other.’ Knapp v. Railway Co., 114 Mich. 199, page 201 [72 N. W. 200].”

We think the claim of counsel is without merit. If the testimony was not strictly rebutting, it was within the power of the court to permit its introduction out of its order. See Chase v. Lee, 59 Mich. 237 (26 N. W. 483); Meade v. Bowles, 123 Mich. 696 (82 N. W. 658).

The other assignment of error is not urged by counsel.

The judgment is affirmed.

Steere, C. J., and McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Moore, J.

text:
    BRINEN v. MUSKEGON SAVINGS BANK.
    Bills and Notes —Demand Note — Lien of Corporation for
    Debt of Stockholder — Banks and Banking.
    A negotiable instrument reading “On demand after date I promise to pay to the order of,” etc., was a demand note which was not affected as to the time of maturity by a clause reoiting that the maker had deposited certain collateral security with the payee bank and authorized it to sell at maturity or before the maturity of the note if the securities should depreciate; defendant bank, in which the maker was a stockholder, continued to have a lien on his bank stock for the indebtedness as against the claim of a pledgee of such stock to whom possession of the certificate was transferred ' before any demand was made upon the note.
    Appeal from Muskegon; Sullivan, J.
    Submitted January 31, 1913.
    (Docket No. 59.)
    Decided March 20, 1913.
    Bill by William Brinen against the Muskegon Savings Bank for an adjudication of complainant’s and defendant’s conflicting claims or liens on certain stock. From a decree for defendant, complainant appeals.
    Affirmed.

      Cross, Vanderwerp, Foote & Boss, for complainant.

      William Carpenter, for defendant.
   Moore, J.

In this case the question is: Who of the parties has the superior right in ten shares of the capital stock of defendant company ? Complainant asserts that he is the owner; while defendant contends it has a lien upon the stock which is superior to and takes precedence over the right claimed by complainant.

Defendant is a banking corporation. On December 31, 1910, Frank G. Jones, the then owner of ten shares of its capital stock, became indebted to defendant, which debt was evidenced by the following writing:

“Muskegon, Michigan, Dec. 31,1910.
“ On demand after date I promise to pay to the order of Muskegon Savings Bank, at its banking office in Muskegon, Mich., five thousand dollars, $5,000.00, for value received, with interest at the rate of six per cent, per annum after date, and I herewith deposit with said bank as collateral security for the payment of this note, or of any other indebtedness by me to said bank, one hundred shares of American Electric Fuse Company as evidenced by certificate number 17, and I hereby give to said bank or its assigns full authority and power to sell, transfer and convey the said collateral security, or any part thereof, on the maturity of this note or any time thereafter, or before maturity of this note, in'ttya event of said securities depreciating in value, at public or private sale, at its discretion, without advertising the same, or giving me any notice, with the right of said bank or its assigns themselves to be the purchasers, and to apply the proceeds of such sale or sales, first, to the payment of the expense of such sale or sales, and the balance to the payment of this note including interest thereon; and in case the proceeds of the sale of thesaid collateral security shall not cover the said expense of sale, and principal and interest of this note, I promise to pay the deficiency forthwith after such sale.
[Signed] “Frank G. Jones.
“No. 115. Due — Demand.”

Payment of this note at maturity, or on demand at any time thereafter, was guaranteed by the American Electric Fuse Company upon the back of the instrument. No demand for payment of this obligation was made until the afternoon of June 10, 1911.

On the 8th of June, 1911, Mr. Jones, then the owner of the stock, indorsed it in blank and delivered it to the Union National Bank of Muskegon as collateral security for a loan of $1,250. This debt became due July 8, 1911, and on December 5, 1911, in pursuance of a proper notice, the stock was sold to complainant for the consideration of $1,250.

On December 13, 1911, complainant presented to defendant this certificate indorsed in blank by Mr. Jones, with evidence of sale to complainant, and demanded that a new certificate be issued to him, offering to surrender to defendant the old certificate No. 288 for that purpose. Defendant refused to comply with this demand, claiming that Mr. Jones was indebted to it in the sum of $5,000 on account of the note given December 31, 1910, and that said note had matured on June 10, 1911, by reason of demand of payment that day made upon Jones, and further claiming that at the time of the making of such demand of payment defendant had no knowledge or information that Mr. Jones had pledged the stock to the Union National Bank.

The court below rendered a decree that the defendant has a valid lien on the stock, whish takes precedence over the right claimed by complainant, and directed the surrender of the certificate to defendant for the enforcement of its lien. From this decree complainant has appealed.

Counsel say the questions involved are:

(1) When did the obligation of Frank G. Jones to defendant mature, so that the statutory lien attached ?

(2) Is complainant’s ownership of the stock superior to defendant’ statutory lien ?

Under the banking laws of the State of Michigan, a bank’s lien on its stockholders’ stock is provided for by section 6098, 2 Comp. Laws (3 How. Stat. [2d Ed.] § 6404). We content ourselves with referring to the statute.

Counsel concede that, if the note of December 31,1910, is a demand note, then complainant is without remedy; but it is insisted that it is not a demand note. Their contention is stated as follows:

“We have no quarrel with the doctrine that the holder of a demand note may consider it due from the moment it is given, and may bring suit thereon without first making formal demand for payment. But in the instant case the paper writing is something more than ‘ a demand note, pure and simple.’ Nor is it necessary to resort to evidence aliunde to gather the intention of the parties. The instrument speaks for itself, and, in a voice that is unmistakable, proclaims that the parties elect to treat the words ‘ on demand ’ as of controlling significance; that they shall mean precisely what the language imports, viz., that the note shall not mature until ‘ demand.’ That such is the plain meaning of the contract is evidenced by the instrument as a whole, and particularly by that portion - thereof wherein is conferred upon defendant the following grant of power respecting the 100 shares of stock of American Electric Fuse Company pledged to defendant as collateral security, viz.:
“ ‘ And I hereby give to said bank or its assigns full authority and power to sell, transfer and convey the said collateral security, or any part thereof, on the maturity of this note or any time thereafter, or before the maturity of this note, in the event of said securities depreciating in value, at public or private sale, at its discretion,’ etc.
“We are not seeking to change the plain terms of the contract. On the contrary, we are asking for such an interpretation of the contract as will give force and effect to every provision thereof. * * * We think there can be no doubt of the meaning of the paper writing now under consideration. Construing the instrument as a whole, the conclusion cannot be avoided that the agreement of the parties was that the note should not mature until demand for payment was made. Otherwise, why provide that the stock of the American Electric Fuse Company pledged as collateral security, might be sold ‘ before the maturity of this note, in the event of said securities depreciating in value’ ? It is not reasonable to suppose that the parties intended the obligation to be a demand note, pure and simple, due from the moment it was given, when the plain language of the instrument contemplates that sufficient time might elapse before the maturity of the note to allow the collateral security to depreciate.”

We do not place the same construction upon the instrument as do counsel. The note was written upon a blank in common use by the bank when it took collateral security for its debt, and was worded to meet the actual situation growing out of debts evidenced by demand paper or time paper, as the debt happened to be. There is nothing that indicates an intention to change the rule governing the time when demand paper becomes due. The collateral was given, not only to secure the debt evidenced by the note, but “ any other indebtedness by me to said bank.”

We think that the rule stated in Citizens’ Sav. Bank v. Vaughan, 115 Mich. 156 (73 N. W. 143), and the cases cited therein, apply here. See, also, Bronson Electric Co. v. Rheubottom, 122 Mich. 608 (81 N. W. 563).

The decree of the court below is affirmed, with costs.

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


author: Steere, C. J.

text:
    WAY v. ROOT.
    1. Election of Remedies — Counts—Trial—Inconsistent Positions.
    Plaintiff should be required to elect between inconsistent counts of a declaration which are contradictory and conflicting as to theory or facts: he should not be permitted to occupy repugnant positions.
    2. .Same — Vendor and Purchaser — Common Counts.
    In an action brought by the assignee of the purchaser’s interest in a land contract where the purchaser had paid the full price, and the vendor had failed to convey as agreed, because his wife refused to execute the deed, plaintiff was entitled to go to the jury on a declaration setting up the contract and its breach, and on the common counts: in case they should find that the defendant had acted in bad faith, the damages under the special count would be the value of the property at the time of the breach; if they determined that defendant was acting in good faith plaintiff could recover the money paid and interest, under the common counts.
    3. Vendor and Purchaser — Land Contract — Breach, Action for.
    . Where a vendor has failed to perform a land contract upon full performance by the purchaser, the latter need not rescind and tender possession of the premises to the Vendor, or otherwise place him in statu quo, in order to recover in an action for breach of the contract: and under a contract not providing for possession by the vendee before full performance, it was not a condition precedent to an action to retender possession : the purchaser’s occupancy which continued after the execution of the land contract is to be considered the same as it had previously been, i. e., that of a tenant.
    4. Same — Estates by Entirety.
    While neither husband nor wife can affect the interest of the other in land held by the entirety, and a contract of either to convey the property is ineffective to vest any title in the vendee, or encumber the land, such a contract is not absolutely void and affords an action for breach of a land contract against the one who executed it.
    5. Damages — Breach of Land Contract.
    Whether or not the good or bad faith of the vendor should be permitted to affect the question of damages, — a point which is not determined, — the court did not prejudice the rights of defendant by submitting the question to them instructing the jury that if defendant acted in bad faith the damages would be the market value of the property at the time of the breach of the land contract, the jury finding for plaintiff on that question; plaintiff was entitled to recover the market value of the premises including improvements and any increase in value, when he had not rescinded the contract.
    6. Husband and Wife — Estate by Entirety — Rent.
    In Michigan the husband has the right to possession, use, and control of realty held by the entirety with his wife, and is entitled to the income or rent from it.
    7. Same — Set-Off and Counterclaim — Parties.
    Accordingly plaintiff, in an action for breach of a land contract stipulating for the conveyance of property that defendant and his wife owned jointly, was liable for the use of the premises while he remained in possession, the wife refusing to execute a deed and not being a party to the contract, was not a necessary party in order to permit the husband to recover rentals as a counterclaim.
    Error to Yan Burén; Des Yoignes, J.
    Submitted October 18, 1913.
    (Docket No. 106.)
    Decided March 21, 1913.
    Behearing denied June 3, 1913.
    Assumpsit by Harrison S. Way against Herbert L. Boot for breach of a contract to convey land to plaintiff’s assignor. . Judgment for plaintiff. Defendant brings error.
    Reduced and affirmed.

      Titus, Van Horn & Titus, for appellant.

      David Anderson, for appellee.
   Steere, C. J.

This action is brought to recover damages for breach of a land contract given by defendant on February 20, 1908, agreeing to sell and convey to George Way, son of plaintiff, for the sum of $300, a tract of land, containing three and a fraction acres, situate in S. W. i of section 34, in Pine Grove township, Van Burén county. The contract was in writing, and signed by both said Root and Way. By its terms a payment of one-half was to be made at once and $50 per year for three successive years, with interest, at 6 per cent, per annum, defendant to give a deed of the premises when Way had fully performed on his part. The contract was silent as to possession. There was a small house on the property, in which Way was residing with his family as a tenant of Root at the time of the purchase. He continued his residence there, and kept possession of the property until after the payments were completed. He made the first payment of $150 on receiving the contract, and the subsequent payments on or before the time they fell due, until the purchase price was fully paid. Root accepted them all, and indorsed them on the contract.

Soon after the last payment, Root promised to give Way a deed as soon as he could see a man named Kingsley, who lived in the township, and have him write out the deed. Some time later, in a conversation on the subject, he admitted Way had fully performed, but stated it was impossible to give him a deed owing to Mrs. Root’s refusal to join in the conveyance. Various interviews and negotiations were had, during which the parties together interviewed an attorney, who advised them to try to persuade Mrs. Root to sign, and to get together and fix it up amongst themselves. All attempts in that direction failed, and no deed was ever given. It appears, undisputed, that the property was part of a 60-acre farm, the title to which rested in Root and his wife as tenants by entirety. This fact was first learned by Way during the negotiations after he had made full payment on his contract. On September 11, 1911, George Way and wife assigned their interest in said contract to his father, the plaintiff, and moved onto a 40 acres across the road which the father had sold to George, leaving the house they had formerly occupied vacant, though some of their furniture remained there until later.

Plaintiff having received an assignment of the contract, demanded a deed of the premises, and, being refused, began this suit September 26,1911. November 3,1911, he served written notice on defendant that he had not been in possession of the property since obtaining assignment of the contract, and claimed no right of possession. November 17, 1911, defendant tendered and paid into court $244.61 to cover damages and costs, which tender was refused as insufficient. Plaintiff’s declaration contained both the common counts and special counts on the contract. A demurrer to the declaration was overruled, and defendant then pleaded the general issue, giving notice of special defenses, including tender. ' The case was fried before a jury, resulting in a verdict and judgment in favor of plaintiff for $650, and defendant has removed the case to this court for review upon writ of error.

At the trial, after counsel for plaintiff had made his opening statement to the jury, counsel for defendant moved the court to require plaintiff to make an election of counts, saying:

“Now, they must either go to trial upon the contract, or they must go to trial upon the common counts in assumpsit. They cannot do both.”

This motion was overruled, and error is assigned on such ruling; it being defendant’s claim that the counts are inconsistent, and the case was submitted to the jury on a “ double-barreled proposition.” Where counts in a declaration are inconsistent and contradictory, the theory and facts of one conflicting with those of another, plaintiff should be required to elect and not be allowed to take repugnant positions. Neither can a plaintiff abandon the theory on which he has tried his case under one count and recover under a conflicting one. Numerous cases are cited by defendant fully sustaining these well-recognized principles, but we are unable to find that such repugnancy or misjoinder of counts exists here.

Counsel for plaintiff in his opening statement said:

“ The plaintiff relies on his contract. This is not a suit brought on the theory of rescission. This is a suit brought on the theory of full and complete performance on our part and failure to perform on the part of the defendant, and for damages by reason of his failure to perform.”

This claim was consistently adhered to during the trial. We think the practice (and ruling of the court) are in harmony with the import of Doty v. Nixon, 109 Mich. 266 (67 N. W. 116), Glover v. Radford, 120 Mich. 542 (79 N. W. 803), and certain language found in Wyatt v. Herring, 90 Mich. 581 (51 N. W. 684), which is cited by defendant, and holds, as that case was presented, plaintiff could not abandon the theory on which he tried the case under a special count on contract and recover on a quantum meruit for the value of services under the common counts. The court there said:

“ It is undoubtedly true that, had the plaintiff upon the trial given testimony -under his common counts showing what his services were worth for the work and labor performed by him for the defendant in procuring a sale of the property, he would have had a right to submit that question to the jury, but his whole case was based upon his special count and all of his testimony directed to the contract as claimed by him.”

The counts in this case cover the same cause of action and recovery could be had under either on the same testimony according as the jury found the facts to be. The special count sets up the contract, full performance by George Way, failure to perform by defendant Root, and assignment of the contract to plaintiff. If the jury found from the testimony that defendant acted in bad faith, the measure of damages would be, under this count, the value of the property contracted to be conveyed at the time of the breach, if in good faith, the money paid with interest, and recovery would be limited to the latter amount under the' common counts. Where the testimony is along the same lines and a portion of the facts in relation to which there is testimony would justify one verdict, and all the facts claimed would, if found by the jury, justify a larger verdict, the plaintiff is not required to prejudge what he will be able to convince the jury of, but may plead to meet the contingency, so long as his position is not inconsistent and misleading. In such case an election of counts is usually discretionary. Cook v. Perry, 43 Mich. 623 (5’ N. W. 1054); McLennan v. McDermid, 50 Mich. 379 (15 N. W. 518).

It is contended in behalf of defendant that possession of the premises had not been restored or tendered to him at the time this action was begun; that it was incumbent on plaintiff, before recovery could be had, to allege in his declaration and prove on the trial whether or not the vendee went into possession under his contract, and, if so, that he had tendered repossession. This objection could be urged with more force had the contract of purchase provided for possession. Possession prior to full performance is not a part of the estate bargained for according to the instrument of purchase. George Way was occupying as a tenant of defendant when the contract was made, but was not residing on the premises when suit was brought. That some of his effects still remained in the house might raise a material question as to his yet technically being in possession, if the contract had given him possession, but it was silent on that subject. He being in possession as a tenant when the contract of purchase was made, it would not necessarily change the nature of his occupancy. The contract for a deed containing no stipulation as to the time when the vendee might occupy the premises, it is construed as entitling him to possession only on full performance by him and receipt of his deed. Druse v. Wheeler, 22 Mich. 439; Gault v. Stormont, 51 Mich. 636 (17 N. W. 214).

Plaintiff’s action for damages in this case is not, properly speaking, based upon a rescission of the contract, but upon and in affirmance of it on plaintiff’s part, and because of a breach by defendant. Where the vendor is guilty of a failure to perform, and the vendee has made full performance, the latter may proceed in equity for specific performance where performance is possible, or by an action at law for damages. In such case it is not necessary that the purchaser should rescind the contract, restore possession, or otherwise place the vendor in statu quo in order to maintain the action. Miller v. Roberts, 169 Mass. 134 (47 N. E. 585); Fletcher v. Button, 4 N. Y. 396; 39 Cyc. p. 2088; Stockham v. Cheney, 62 Mich. 10 (28 N. W. 692).

It is contended in behalf of defendant that the contract was void from its inception, and therefore cannot be made the basis of a cause of action, for the reason that the land described in it was owned by defendant and his wife together as tenants by entirety, and she did not join in executing the instrument. That the contract is invalid in so far as it is powerless to affect her interests in, or the title to, the property it describes is undoubtedly true. Neither a husband nor wife can alone convey or incumber the estate vested in them as tenants by entirety. In that light and for such purpose such an instrument has been held void by this court. Counsel for defendant cite numerous cases to that effect and especially refer to Naylor v. Minock, 96 Mich. 182 (55 N. W. 664, 35 Am. St. Rep. 595), wherein it is said in substance:

“ Neither the husband nor the wife could convey the estate vested in them in the entirety, unless both joined, and any instrument by which either attempted to make such conveyance would be void.”
“ The term ‘ void ’ is perhaps seldom, unless in a very-clear case, to be regarded as implying a complete nullity; but it is, in a legal sense, subject to large qualifications, in view of all the circumstances calling for its application and the rights and interests to be affected in a given case.” Brown v. Brown, 50 N. H. 538.

This rule is recognized in Lawrence v. Vinkemulder, 157 Mich. 294 (122 N. W. 88), as applicable to the decisions of this court where the term is used in holding conveyances void as an attempt to convey; it being there said:

“The statements of the court in these cases that such contracts were ‘ wholly invalid,’ ‘ a nullity,’ ‘ absolutely void,’ etc., must be considered as made with reference to the question involved.”

It was there held by a divided court that a contract to convey the defendant’s homestead, not executed by his wife, was invalid to create a right of action for damages, but the opinion sustaining that principle as to homesteads, which are specially guarded by constitutional provision, recognized the distinction, and says:

“Thecase of Dikeman v. Arnold, 78 Mich. 456[44 N. W. 407], is not inconsistent with this conclusion. That case differs from this in that the contract covered lands not embraced within the homestead.”

In the case at bar none of the land covered by the contract was embraced within a homestead.

There is no limit on the amount or value of the realty which husband and wife may hold as tenants by entirety as in case of a homestead, and they are not therefore analogous. Such a holding is not protected by any constitutional . provision, and is not regarded by the courts with the same tender consideration as homestead rights, involving a home and shelter for the family.' It is a species of title which may, and sometimes does, afford opportunity to sequester substantial assets from just liabilities. When land is so held, neither can affect the other’s or his or her own rights in the property by a separate transfer. An agreement to convey, though invalid to affect the title to real estate, in whole or in part, may yet be valid between the parties as a basis for the recovery of damages by reason of its breach. In Miller v. Smith, 140 Mich. 524 (103 N. W. 872), where defendants, having only a partial interest as heirs in certain real estate, contracted to sell the same and give perfect title, this court said:

“The fact that specific performance could not be enforced would not bar plaintiff from his right of action at law to recover damages for such failure.”

This rule is too well settled to call for further discussion or citation of authorities. The fact that the relation of husband and wife is involved, and she has an interest in the property, does not necessarily militate against that rule. In the case of Dikeman v. Arnold, supra, defendant made a contract, not signed by the wife, for the sale of certain land, a part of which was their homesteád. The wife would have a dower interest in all. The contract was held void as to the homestead and valid as to the rest in an action for nonperformance; this court saying:

“We think the contract was good between Arnold and the plaintiffs. He knew when he made it that he could not perform it without the signature of his wife to the deed. He, in effect, bound himself to propure such signature. It in no wise differs in this respect from a contract to sell lands which one does not own at the time he makes such contract. The fact that one did not have the legal title at the time he made the contract, and could not procure it afterwards, has never been recognized as a legal defense to an action for breach of the contract.”

The instrument under consideration was not, properly speaking, an attempt to convey the title to the property described in it,- but an agreement that the vendor would convey a good title at a stated future time, should the vendee perform on his part. When the time to convey arrived, it was not a case of inability on the part- of Root to perform by reason of the subsequent discovery of a previous hidden and unsuspected defect in his title. The title was clear and without complications in himself and wife. There was nothing secret or hidden from him as to its condition. He knew, or is presumed to have known, how it was held. But, if he did not in fact clearly understand the nature of his wife’s interests and rights, he at least knew he was a married man, and that to convey a complete title to this real estate his wife must join him. He testifies:

“I knew that when I came to make a deed my wife would have to sign it to make a good title.”

With knowledge that his power of performance was contingent on her assent and co-operation, he contracted to convey this land, of which he was in possession and' control, which involved no homestead rights, in which he had an interest and of which he claimed ownership, but which by reason of his wife’s interest and the condition of its title he was powerless to convey, and therefore the Tendee powerless to enforce specific performance.

Titles by entireties, as known under the common law, are virtually abolished in this State and survive only as to husband and wife, who at common law were one person, and as to whom it was, and is, held that when title to real estate passed to them together, during coverture, they as one person took but one estate seised by them singly per tout, and not per my etper tout as in ease of joint tenancy. It is in most essentials like a joint tenancy, the owners holding the estate together and the survivor taking the whole, but modified by the common-law doctrine that the married pair is one person, and that neither half of that person in law can transfer or affect the title alone, but both halves must act together as a whole, while joint tenants may alien their interests individually at pleasure. This anomalous and sui generis species of tenancy remains, and is the well-settled law of this State under a clear line of decisions, and cannot be questioned. When the husband and wife have thus together acquired an unincumbered title to real estate they have laid up treasures, where, without their concerted action, neither moth, nor rust, nor thieves, nor creditors, nor anything else but death or the tax gatherer can divest them. But beyond that we see no reason and know no authority for extending personal protection to the husband when he assumes to deal singly with property so held, and makes contracts in relation to it which he cannot perform. We think that the husband’s contract to sell realty held by himself and wife under a tenancy by entirety,'though not susceptible of specific performance, nor valid to affect in any way either her or his title, has validity between him and the party to whom he contracts to sell as foundation for an action to recover damages for his breach of it.

As to the measure of damages, the' trial court charged the jury that, in case it was found the defendant had not acted in good faith, it would be a fair market value of the land in the open market, as it then lay, taking into consideration the soil, the improvements, and uses for the purposes it was reasonably susceptible of under conditions as they then existed; but, if he acted in good faith, the measure would be the payments plaintiff had made, with interest, evidently being guided in giving such instructions by the rule stated in Hammond v. Hannin, 21 Mich. 374 (4 Am. Rep. 490). Defendant excepts to this, and urges the equity rule stated in Warvelle on Vendors (2d Ed.) p. 229, that, in case of rescission, where the vendee has paid and been put into possession—

“The decree should in general restore the money to the purchaser without interest and the land to the vendor without rents and profits.”

This is not a case of rescission by the vendee and a suit to recover the purchase money paid. Therefore the latter rule is not controlling. In commenting on Hammond v. Hannin, supra, counsel for defendant say it has not since been recognized by this court and the doctrine of good or bad faith has been repudiated by the Federal courts and a large majority of the State courts of last resort:

“That the good or bad faith of a vendor should not enter into the matter at all. The vendee should not have his damages measured by any such standard.”

Assuming, without admitting, that this view is correct, the defendant was not prejudiced by the instructions upon that point. The court submitted the question of good or bad faith to the jury with the instruction that, if the vendor did not act in good faith, the measure of damages would be the market value at the time of the breach, which is the general rule, with those elements eliminated, where the vendee is entitled to his bargain, and seeks to recover damages for wrongfully being deprived of it. That general rule has been recognized by this court, where the question of good or bad faith was apparently not involved (Dikeman v. Arnold, supra), and in Allen v. Atkinson, 21 Mich. 351, found in the same volume as the Hammond Case, Justice Cooley, who wrote both opinions, sustains that rule. We find no prejudicial error in the charge of the court in that particular.

The court did, however, contrary to the request of defendant’s counsel, distinctly instruct the jury that no offset could be allowed for rental or use of the premises by George Way during the time that he was in possession, for the reason that title to the property was in Root and his wife, and recovery for its use could only be had in a concerted action brought by them in their joint names. In this we think the court was in error. Dealing with the use and usufruct of the property is not the same as dealing with its title.

The rights of husband and wife in such an estate are purely common-law rights, to be tested and interpreted by the rules of that law as they existed before the wife was emancipated as to her individual property interests. By the common law the husband controlled his wife’s estate, and had the usufruct, not only of real estate standing in both their names, but of that sole seised by his wife, whether in fee simple, fee tail or for life. It remains the law that, while coverture continues, the husband has the control, use, rents, and profits of arl estate by entirety. In this State, contrary to the general doctrine, as stated by some authorities (21 Cyc. p. 1201), it is held that growing crops on the land cannot be seized on execution by his personal creditors, but otherwise the general rule as to entireties remains as stated. Morrill v. Morrill, 138 Mich. 112 (101 N. W. 209, 110 Am. St. Rep. 306, 4 Am. &Eng. Ann. Cas. 1100). Under this law defendant had the possession, use, and control of the property. He was entitled to the income from it. While outside creditors might not reach it, he was empowered to take, deal with, and dispose of what it produced. He had a right to rent the property to others and collect the rent. He rented it to George Way, and put him in possession. His possession during the time in question was that of a tenant at will, or from month to month, defendant having no right to sell him the property and the contract of sale which he gave being silent as to possession. But he could lawfully collect rent from Way, and evict him in case of default, and Way could enforce a lease of the property given him by defendant alone. Pray v. Stebbins, 141 Mass. 219 (4 N. E. 824, 55 Am. Rep. 462). We are well satisfied that defendant, being entitled to the rent, could maintain an action in his own name to collect it, and we think he is entitled to recover it as a counterclaim when sued by the party owing it, or his assign.

Both George Way and defendant testified as to the rental value of the premises, but that issue was not submitted to the jury, and consequently the same was not allowed. George testified that up to the time of making the contract he was paying $4 per month. Defendant, who was manifestly interested in depreciating the value of the property for purpose of the trial, testified that he had rented the house and garden for 50c a week at one time, that George Way paid $1.75 per month, that the rental value was perhaps $30 per year, and he presumed he had said it was worth $40 per year.

The contract was entered into February 30,1908. This suit was begun September 36, 1911, shortly after George Way moved from the premises. Should plaintiff see fit to remit $175 from the judgment in this case, as a proper offset for rent, it will stand affirmed, without costs to either party, otherwise it is reversed and a new trial granted, with costs.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Steere, O. J.

text:
    WEISS v. WEISS.
    Divorce — Parent and Child — Custody of Minors.
    No absolute right to the oustody of a child under 13 years of age is vested in the mother by 3 Comp. Laws, § 8689, 4 How. Stat. (3d Ed.) § 11537, even though the court finds that she is a suitable person to have charge of the child: the court in divorce proceedings has authority to make such disposition of minor children as it may deem for their best interests. The statute is intended to provide a general rule or guide for courts when there is a doubt which parent is best fitted for the control of young children, and under it the mother is prima facie entitled to have the charge thereof. Brooke, McAlvay, and Kuhn, JJ., dissenting.
    Appeal from Bay; Collins, J.
    Submitted January 7, 1913.
    (Docket No. 6.)
    Decided March 21, 1913.
    Bill by Leonard Weiss against Alma Weiss for divorce. From a decree making provision as to the custody of the children, both parties appeal.
    Affirmed.

      Cowmans & Gaffney, for complainant.

      Stoddard & McMillan, for defendant.
   Steere, O. J.

The only proposition in this suit wherein the parties litigant are in accord is their desire to be divorced. Complainant in his bill and defendant in her cross-bill each ask and urge that relief, but each imputes their admitted wreck on the sea of matrimony to the malfeasance of the other. The most' strenuous efforts of each, as indicated by their evidence, are devoted to rescuing from the wreck what salvage is possible, in the shape of reputation, property, and the surviving children born of their marriage. In their respective pleadings each charges the other with extreme cruelty and other forms of gross misconduct inimical to domestic harmony, which necessarily render a continuation of their relations as husband and wife intolerable and impossible. Each particularly contends for the care, and custody of their two sons, aged, respectively, years and 1 year. The pleadings having been perfected and issue joined in this suit, it was duly brought on to be heard, on pleadings and proofs taken in open court, before the Bay county circuit court in chancery on March 7, 1912, and was apparently concluded the following day.

On April 12, 1912, an opinion was rendered by the trial judge in which neither was held blameless; but it was found that sufficient facts alleged in defendant’s cross-bill had been established to entitle her to a'divorce on the ground of cruelty, and a decree accordingly was authorized giving her the custody of the two children until the elder should arrive at the age of five years, when the complainant should have care and control of him; defendant thereafter to retain the younger as before, complainant to pay the actual disbursements of the suit, and their former home valued at between $3,000 and $4,000, title to which they held as tenants by entireties, to be divided. Following this opinion, and before any decree was settled, defendant made a change of solicitors, and proceedings were had resulting in the case being opened, and the testimony of 36 witnesses was heard relating mainly to the fitness of the respective parties to have the care and custody of their children, developing a bitter contention of broad range, involving the antecedents and parents of each. Subsequently an opinion was filed by the court adhering in chief essentials to his former decision, and on July 31, 1912, a decree was signed along the lines already stated, granting defendant a divorce on her cross-bill, giving her both children until August 1, 1914, when the oldest boy, Walter, who would then be five years of age, should be given into the custody and control of complainant, who, in addition to paying up certain back alimony and actual disbursements of the suit, was to pay complainant $13 per month until said August 1, 1914, dividing the real estate as heretofore stated; subsequent disposition of the children being also held subject to the further order of the court, with leave to defendant to make application for further allowance should certain contingencies arise. From this decree she has appealed, because, as stated in the brief of her counsel—

“ She is not satisfied with the provision therein giving the care, custody, control, and education of Walter Weiss, the minor child of said parties, to the complainant after he becomes five years of age. She also asks that the award of property and alimony to herself be fixed at such an amount as, in the opinion of the court, shall be just to her, and in accordance with the modification of the decree in the particular of which she complains.”

It appears from the record of this case that complainant was 23 years of age when they were married and defendant 20. They are German Americans, raised in the township of Frankenlust, Bay county, where the parents of each settled in an early day. They both now make their respective homes with their parents, in said township, who own farms and are substantial, prosperous, and respectable members of the German settlement located there. These young people appear to have been well brought up in good homes, by thrifty, industrious, and moral, Christian parents, and bore good reputations in the communities where they were raised. They, with their parents, were members and attendants of the churches near their homes. Complainant was well educated, had been away to college, and taught in the public schools of the county. When married he was employed in a hardware store in Bay City, in which he had an interest, but which was subsequently destroyed by fire. Defendant appears to have been well reared and morally trained, living without reproach at home with her parents until she was married to complainant. The charges each now makes against the other, if true, not Only would render them totally unfit to have the rearing of children, but brand each as of quarrelsome, immoral, vicious, and criminal tendencies which should ostracize them from decent humanity. It is evident from this record, taken as an entirety, that the criminations and recriminations of both are sadly exaggerated and illustrate in tragic fashion the extremes to which a revulsion of domestic impulses sometimes carries. The two respectable families of the parties have been drawn into this chapter of domestic infelicity and made an issue by reason of the litigants each residing with their parents and wishing to take their children there, involving the fitness of the proposed homes into which the children would go. Any detailed statement or review of the bitter charges and conflicting testimony found in this lengthy record would be unprofitable and demoralizing, and is unnecessary.

It is contended in behalf of defendant that, under its decision granting her a decree, not finding her an unfit person to have the custody, care, and control of her children, but, on the contrary, finding that she was a proper person^ by awarding both to her until the oldest reaches five years of áge and the youngest until legally qualified to choose for himself, the court was logically and legally bound to award her both without qualification under section 8689, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11537), which provides:

"Section 1. The People of the State of Michigan enact, that in case of the separation of husband and wife having minor children, the mother of said children shall be entitled to the care and custody of all such children under the age of twelve years, and the father of such children shall be entitled to the care and custody of all such children of the age of twelve years or over: Provided, that any probate court or any court of competent jurisdiction, may, on petition and hearing thereof, make and enforce such order or orders as it may deem just and proper as to the care and custody of such minor children, excepting in cases where an order or decree may have been made by any court in chancery regarding such children: And provided, further, that nothing in this act shall prevent any court of competent jurisdiction from making and enforcing any such order or orders as it may deem just and proper as to the care and custody of such minor children in the same manner and with like effect as it could if this act had not been passed.”

It can be said of the foregoing section, taken as a whole, that it was intended as a general guide for the courts when in doubt as to which of the parents is the more fit, or when neither is shown to be unfit. It has been construed as meaning that prima facie the mother is best entitled to the custody of very young children, favoring her in that respect, and as meaning there should be preponderating reasons in favor of the father before it is otherwise provided. Klein v. Klein, 47 Mich. 518 (11 N. W. 367); In re Knott, 162 Mich. 10 (126 N. W. 1040).

The statute in question has never been construed as qualifying or restricting the inherent, broad, discretionary powers of a court of chancery to adjudicate as to the custody and control of children whose interests are before it, according to the varying elements for consideration arising in each case, and to make such disposition of each child as its best interests appear to demand. On the contrary, it was said in Re Knott, supra:

"There is nothing in either provision (sections 8689-8701) which interferes with the right of a court of competent jurisdiction, upon investigation and upon consideration of the best interests of a minor child, to commit said child to the custody of either the father, the mother, or some other suitable person.”

The fact that the parents are equally good, or equally bad, or even that one in some respects may be better than the other, is not necessarily the final test. Other considerations bearing on the welfare of the child may turn the scale.

By section 8631, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11468), the discretionary power of the chancery courtis affirmed in clear language. When a decree of divorce is granted, “ the court may make such further decree as it shall deem just and proper, concerning the care, custody and maintenance of the minor children of the parties, and may determine with which of the parents the children, or any of them, shall remain;” and by the nest section (8632) the court can afterwards from time to time revise and alter its previous orders on the subject “as the circumstances of the parents and the benefit of the children may require.” Such course has been recognized as proper and ratified by this court. Griffin v. Griffin, 154 Mich. 536 (118 N. W. 1); Stone v. Stone, 161 Mich. 565 (126 N. W. 710). The trial court recognized the possibility of such a contingency and provided for it in the decree. In his opinion the chancellor says:

“ Under the provisions of 3 Comp. Laws, § 8632, the duty of the court in respect to the care and custody and maintenance of these children is a continuing duty. This section, among other things, was in mind when the order was made granting practically a rehearing upon the indicated question. The question as to what order should be made in respect to the care, custody, and maintenance of the children of the parties was one to which I gave my most careful thought and best consideration before making the decision of April 12th. I have gone over the matter again and have reconsidered it in the light of the additional testimony and arguments of counsel made thereon, and reach practically the same conclusion as reached in the first opinion quoted. * * * I know of no case that I have been called upon to decide that I have given more earnest thought to in an attempt to reach such conclusion as would be for the best interest of the children and justice between the parties.”

It is a salutary and well-recognized elementary rule of equity jurisprudence that one seeking aid from a court of chancery must come with clean hands, and, if not, the court will decline to act, leaving the parties where it finds them. That rule, as applied to divorce, means that it is a remedy provided only for the innocent and injured party, and, if the evidence discloses that both have shown ground for divorce, neither is entitled to it. It must be conceded, however, that there is a growing tendency in divorce cases to at times relax that rule, on grounds of public policy or the peculiar exigencies of the special case under consideration, and adopt one of comparative rectitude or turpitude. This record, taken as a whole, breathes the suggestion that defendant’s divorce comes more logically under the rule of comparison. The court did not, and we think could not, find her blameless, and says:

“The defendant is not free from fault, and many reasons appear to favor a decree against her, but upon a careful weighing of the testimony and a consideration of the circumstances inclines me to a decree in her favor.”

It is manifest, so far as human foresight can discern, that the enmity and bitterness which has developed precludes possibility of reconciliation. Neither has appealed from the decree so far as divorce is concerned; complainant has acquiesced in all its provisions, and defendant complains only of the disposition of the eldest child and, contingently in that connection, of the allowance for its support.

Though chancery cases when appealed are, as a general proposition, heard de novo, in view of the position and claims of the respective parties, the condition of the pleadings, and the testimony, taken as a whole, we do not feel called upon to directly consider more than the one question of the disposition made by the court of the oldest child, so tenaciously opposed on this appeal by defendant.

While the wishes and affections of the parents for the child are not to be ignored, they are a secondary consideration. The primary consideration is the welfare and happiness of the child, from the standpoint of education, moral and religious training, good influences, care, kind treatment, pleasant environments, and future prospects.

It is evident that the court, disinterested except in the discharge of a grave official responsibility, so viewed the matter. He made a thorough and unusually exhaustive investigation, and opened the door for all evidence the litigants proposed, and patiently heard everything which either side had to offer. The advantage of hearing and seeing the witnesses is not to be overlooked, and that is of particular importance in a case of this nature where personal bitterness, parental affection, family pride, and even neighborly partisanship tincture the testimony and lead the witnesses to extremes beyond the possibility of reconciliation. Not only the families, but the neighbors, have loyally lined up, and warmed up, on the respective sides where kinship and friendship naturally place them.

That both parents are fond of their children, would be kind to them, and care for them as best they could, we have no doubt; neither do we doubt that their zeal in the matter is quickened by a desire to prevent each other from being gratified in that particular. Both of them are sojourning with their parents, and neither has an independent home of his or her own to take their children to. The environments and home life where, so far as now appears, these children will be, are what the grandparents make them. In recognition of this, much testimony was introduced for defendant attacking the habits, character, and home life of complainant’s parents, which was spiritedly reciprocated by complainant as to defendant’s parents.

It was shown that in the home of complainant’s parents beer and wine are kept and sometimes indulged in, and children have been allowed to partake. This also appeared true of the home of the defendant’s parents. We discover little distinction in that respect. The township of Frankenlust was settled by a German- colony. They have vineyards and make wine and beer, using these beverages in moderation at their homes, according to their domestic and social customs. At their social and religious gatherings, hospitalities in that particular are extended to the teachers of their schools and pastors of their churches the same as other guests, without opprobrium or thought of wrongdoing. Whatever may be said of this in the abstract, we see no reason to discriminate on that ground.

Taken as a whole, the testimony leaves the impression that these families are respectable and respected, their members stand above the average in their communities, and lead moral, industrious, and wholesome lives. We think enough is shown to satisfy the court that each of the litigants has peculiarities of temperament, and faults which must be taken into account.

The welfare of both children must be considered by the court from every point of view, including their future prospects. The care, attention, and disposition toward them of the grandparents, into whose homes they go, is an element of much importance. It could well be thought that family pride and rivalry, as well as family affection, would result in each of these boys being more kindly treated, more carefully reared and better provided for, both in the present and future, if each of the families had one of them; and such a course might eventually better tend to a conciliation and co-operation between the grandparents, if not the parents. Primarily the court decides as a legal question between the parents, but* the line of testimony introduced by the contending parties inevitably gives unusual importance to the relations of the children with their grandparents also.

We have endeavored to examine the testimony critically and have come to the conclusion that the result reached by the learned circuit judge should not now be disturbed.

The decree is affirmed, without costs.

Moore, Stone, Ostrander, and Bird, JJ., concurred with Steere, O. J.

Brooke, J. The record showing affirmatively that the mother is not morally unfit to care for her children, I am of opinion that the custody of both should have been awarded to her until each became 12 years of age. 3 Comp. Laws, § 8689 (4 How. Stat. [2d Ed.] § 11537).

McAlvay and Kuhn, JJ., concurred with Brooke, J.


text:
    RANNEY v. STOLL.
    1. Injunction — Injury—Equity.
    An injunction bill must aver some substantial or positive injury; mere preference or desire on the part of the complainant will not justify restraining acts which are merely injurious to feelings or which amount to no more than invasion of complainant’s right of privacy.
    2. Same — Recording of Land Contract.
    The writ will not issue to enjoin the register of deeds from recording an assignment, duly acknowledged, of an interest in a land contract that was not acknowledged or proven so as to be entitled to'record, but which the assignment refers to and which is thereto annexed, where complainant’s bill merely avers that the contract included matters of a private nature which he disliked to have placed on record.
    3. Same — Parties.
    The assignee of an interest in the contract who caused it to be recorded was a necessary party to the suit.
    Appeal from Wayne; Hosmer, J.
    Submitted January 16, 1913.
    (Docket No. 142.)
    Decided March 21, 1913.

      Bill by Frederick T. Ranney against Otto Stoll, register of deeds for Wayne county, for an injunction restraining defendant from recording certain instruments. From an order dissolving a temporary injunction, complainant appeals.
    Affirmed.

      Lucius H. Collins, for complainant.

      Cullen, Casgrain & Hanley, for defendant.
   Steere, C. J.

In this suit complainant filed an injunction bill in the circuit court for Wayne county, in chancery, to restrain defendant, as register of deeds of said county, from recording a certain land contract between one Robert Thuner and complainant, on the ground that the same was not acknowledged in accordance with the provisions of the statute authorizing the recording of land contracts, and that it—

“ Contains matter that is exclusively private to the parties thereto, and in no sense such as is customarily set out at length in ordinary land contracts; that it is such matter as is of no interest to the general public. * * * Wherefore your orator dislikes the making public any record thereof, as he asserts it is of such a character that the public at large can have no interest in and are not entitled to any knowledge thereof.”

The bill of complaint was sworn to by complainant on October 23 and filed on October 24, 1912. On the day it was filed a preliminary injunction was granted. On November 1, 1912, defendant filed and served an answer, in which he denies recording the land contract as described in complainant’s bill, and states—

“That he did, as register of deeds, on the 16th day of October, A. D. 1912, at 3:05 p. m. on said day, duly record an instrument in his office purporting to be an assignment of interest in lands made and executed by Alois Thuner to Imogene Thuner; that said instrument aforesaid was duly executed and acknowledged and certified according to the laws of this State, and as such entitled to record in said office under the laws of said State, by entering the same on said day and said time in the entry book provided by law to be kept by him, noting in such entry book the said day and said hour and minute of the reception of said instrument as aforesaid, all of which appears in and by such entry book, and did at the same time indorse on said instrument the aforesaid day, hour, and minute of the reception of such instrument so recorded.”

On the’ same date that defendant filed his answer he also filed and served a motion to dissolve the preliminary injunction granted on the filing of complainant’s bill for the following reasons:

“ (1) Because said injunction was improvidently granted.
“(2) Because the bill of complaint in said cause is without any equity.
“(3) Because said court is without jurisdiction tore-strain the official acts of said defendant.
“ (4) Because all parties interested in the subject-matter of this said cause are not made parties to the same.”

Said motion was duly brought on for argument on the 23d day of November, 1912, at which time it was conceded by counsel for the respective parties that a certain instrument now set forth in the printed record is the instrument in question in said suit. After argument and submission of said motion, the court ordered the preliminary injunction set aside, “dissolved, and held for naught.” It is admitted by counsel for defendant that, upon said motion to dissolve, all facts and matters which could have been shown at a full hearing in open court were presented; that said order of dissolution was a final disposition of the case, and is appealable. The instrument conceded, on argument of the motion aforesaid, to be the one in question, as it appears on the pages of the printed record, consists, first in order, of the contract, or “memorandum of agreement ” described in complainant’s bill. It is signed by complainant and Robert Thuner, dated January 14, 1909, and, briefly stated, relates to certain lands described therein jointly purchased by them, recites the assigning by Thuner of his interest to complainant as collateral for certain indebtedness, states the relations of the parties and condition of the title, provides that, within a reasonable time, complainant shall plat and put the property on the market and divide the net profits between them, deducting from Thuner’s share certain indebtedness owing by him to complainant. Following this contract, and evidently indorsed thereon in the original, appears an assignment, also dated January 14, 1909, by Robert Thuner to Alois Thuner of “all my right, title and interest in and to one-half of my share of the profits that may arise and be coming to me under and by virtue of the above contract.” This is followed by an assignment from Alois Thuner to Imogene Thuner of the interest in the original contract previously assigned by Robert to Alois Thuner. The assignment gives a description of the real estate, the date and nature of the previous contract and assignment, and says, “which contract and assignment are hereto attached,” concluding:

“Now, therefore, for a valuable consideration to me in hand paid, I hereby sell, assign, transfer and set over unto Imogene Thuner, of the city of Detroit, all my right, title and interest in and to my share of said profits which may be coming to me, by virtue of the assignment thereof to me, by said Robert Thuner as aforesaid.
“Alois Thuner.
“ Signed, sealed, and delivered in presence of:
“Chas. W. Casgrain.
“Eva Doxtator”—

And was duly acknowledged before a notary public of Wayne county, on October 15, 1912. The recording laws (section 9035, 3 Comp. Laws, 4 How. Stat. [2d Ed.] § 10876) authorize the execution and acknowledgment of contracts for the sale of land, or any interest therein, in the same manner as the execution of deeds; and section 9038 provides:

“ Sec. 4. Any contract executed and acknowledged according to the foregoing provisions shall, with the certificates (certificate) thereto attached, be entitled to be recorded in the office of the register of deeds of the county where the lands lie, and the recording of the same shall have the same force and effect as to subsequent incumbrancers and purchasers, as the recording of deeds and mortgages, as now provided by law.”

It is manifest that the contract between complainant and Robert Thuner of January 14, 1909, standing alone and as an original instrument, is not entitled to record under the recording laws. Neither is the indorsement thereon by Robert Thuner of a half interest in his share of the profits to Alois Thuner. But by proper recitals and references and the attachment of said instrument to the assignment from Alois Thuner to Imogens Thuner it is claimed by defendant that the same is made a part thereof and entitled to record as such, the assignment to Imogene being duly witnessed and acknowledged, entitling it to record beyond question. . Therefore the whole must be treated as one duly witnessed and acknowledged instrument when presented for record.

Just what this ingenious device for getting on record in the office of the register of deeds an instrument which alone and of itself is not entitled to record would profit any one beyond the fees realized by the register might be an interesting question, if material; but, irrespective of that field of inquiry, complainant’s bill cannot be sustained. It is purely an injunction bill, and nothing more, and it does not state any substantial injury which would result to complainant from the act sought to be restrained. The only ground alleged, as already quoted, is that certain matter set out in the original contract is not such as is usually set out in land contracts, is private to the parties, and of no interest to the public, and complainant therefore dislikes to have it recorded.

“ Substantial and positive injury must always be made to appear +o the satisfaction of a court of equity before it will grant an injunction, and acts which, though irregular and unauthorized, can have no injurious results, constitute no ground for.the relief.” 1 High on Injunctions, § 9.

It is also elementary that courts of equity will not interfere by injunction solely to give relief against injury to one’s feelings, nor for mere protection of the right of privacy, although the case may be such that redress is available in other proceedings.

The bill is also defective for want of parties. Imogene Thuner, the assignee of an interest in the original contract, and the person who proceeded to have the instrument recorded for the protection of her rights, is a party in interest, entitled to be heard, and would be a necessary defendant in any view of the case.

We think the learned circuit judge correctly dissolved and held for naught the preliminary injunction, and his order herein appealed from is affirmed, with costs.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.