text:
    JAMES v. IRVINE.
    1. Deeds — Building Restrictions — Validity.
    A restriction in a deed, declaring that no structure but a dwelling, to cost at least $2,500, and to be built 15 feet from the street line, shall be erected on the land, is valid.
    2. Same — Construction.
    Restrictions in deeds will be construed strictly against the grantors and those claiming to enforce them, and all doubts resolved in favor of the free use of the property.
    3. Same — Double Houses.
    A building restriction limiting the use of the property to dwellings costing not less than $2,500, and to be built not less than 15 feet from the street line, cannot he invoked to prevent the erection of a double house otherwise complying with the re- ' striction, several other similar ones having been erected on the same plat without objection.
    Appeal from Wayne; Mandell, J.
    Submitted June 16, 1905.
    (Docket No. 35.)
    Decided September 20, 1905.
    Bill by Delbert C. James against William A. Irvine and Mina G. Irvine to restrain the erection of a dwelling. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    For some time prior to 1889, a tract of land extending west from Woodward avenue to Hamilton Boulevard, in the city of Detroit, was owned by several parties, and was platted as Duffield & Dunbar’s Subdivison, containing 98 lots. The plat was duly recorded. After the recording of the plat, and on May 16, 1891, the parties owning the land executed a deed to Mr. Bethune Duffield, as trustee. Mr. Duffield afterwards deeded back to each original owner a certain number of lots, representing his interest in the unplatted property. Neither the plat, nor the trust deed to Duffield, nor the deeds from Duffield to the original owners, contained any restrictions as to the character or location of the buildings to be erected thereon.
    . It was stipulated in writing upon the hearing below that 16 of these lots of this subdivison contained no building restrictions whatever, of which several have been sold and buildings erected thereon.
    That 5 of the lots are subject to the restrictions:
    “That no structure but dwellings, to cost at least $2,500 and to be built 15 feet from the street line of Euclid avenue, shall be erected thereon.”
    That 2 of said lots are subject to the restriction that:
    “The grantee, his heirs or assigns, * * * will not erect any building upon said lots within 15 feet of the line of Euclid avenue or of the valueless than $2,500, said' building to be used only as dwellings with appurtenances.'”

      That one deed, dated ,$une 18, 1891, to one Mary Sherman, contained the restriction:
    “ That no building shall be erected upon said premises by said second party, her heirs, executors, administrators, or assigns, except for the purposes of a dwelling only, that any building so erected shall not be less than 15 feet from the line of Euclid avenue, and shall cost not less than $2,500, and said parties of the first part, for themselves, their heirs, executors, and administrators, and said Bethune Duffield, as trustee, for the considerations herein mentioned, hereby covenant and agree that in selling said land in said subdivision the foregoing restrictions shall be incorporated in each and every deed, and that they, the heirs, executors, administrators, and assigns, will enforce said restrictions.”
    That 8 of said lots are subject to the restriction:
    “ That said party of the second part, his heirs or assigns, are not to occupy said premises except for residence purposes, * * * and, further, that no building shall be erected within 15 feet of the street line of Euclid avenue, and to cost not less than $2,500.”
    That 19 of the said lots are subject to the restriction that the grantees—
    ‘ ‘ Will not occupy said premises, except for dwelling purposes, and to cost at least $2,500, and not to be erected within 15 feet of the street line of Euclid avenue.”
    That therfe are now 29 buildings erected, or in course of erection, on Euclid avenue (which extends through this subdivision), exclusive of the building involved in this case.
    “ That there are 13 buildings in. the first block, of which 9 are buildings designed and used for the purpose of one family, 3 of which are double houses, designed and used, respectively, for two separate families, and 1 of which is a four-family flat, designed and used by four separate families; that lot No. 8, owned by defendants, and upon which they propose to erect the building complained of in this case, is situated in the first block near Woodward avenue; that there are 16 buildings in the second block, 15 of which are designed and used for one separáte family, 1 of which is a two-family flat designed and used by two separate families; that lot No. 45, owned and occupied by the complainant, is situated in the second block, 8 lots west of Second avenue.”
    The defendants derived their title to lot 8, upon which the building in dispute is proposed to be erected, by the trust deed executed by all the original platters to Duffield, trustee, and a deed from Duffield, trustee, to Mary B. Duffield, both of these deeds being without any restrictions; deed from Mary Duffield to George A. Gregg, which deed contains the first restriction upon said lot; and a deed from Gregg to defendants, March 24, 1903, containing the following:
    “Said party of the second part, for themselves and heirs and assigns, as a part of the consideration hereof, hereby agree that they will not occupy said premises except for a dwelling house, and that they will not erect any building upon said premises within 15 feet of the line of Euclid avenue, or of the value of less than $2,500.”
    The deed to complainant contains a similar restriction. Upon his lot he erected a dwelling house designed for one family, which is occupied by himself. The defendants had prepared plans and specifications for the erection of a dwelling house, and had let the contract, when complainant filed this bill to enjoin them from erecting a double dwelling house, upon the theory that there was a binding restriction upon all lot owners of Euclid avenue that no dwelling house should be erected for the occupancy of more than one family. The house proposed to be erected by the defendants is 35 feet wide, with a gable roof, to cost $6,500, to have all modern conveniences, to be built in a, first-class manner, and designed for the use of two families; the defendants designing to live upon the first floor and to rent the second.
    It was stipulated in a supplemenal record that a double house, designed for use by two separate families, had been erected on lot No. 39, situated nearer complainant’s house than is the proposed building of defendants; that said double house is now occupied by two separate families; that complainant protested and objected to said double house, but took no legal steps to prevent it; that plans for a terrace, designed for the use of three separate families, have been submitted to complainant and other residents of Euclid avenue, and that formal objections to said terrace were made, but no legal steps were taken by complainant or other residents to prevent the erection of said terrace; that building operations for the same have been commenced, excavations completed, and work is now being done upon the walls above the ground. The case was heard upon pleadings and proofs taken in open court, and the bill dismissed.

      James ■& Kilpatrick (Henry C. Walters, of counsel), for complainant.
    Shaw, Warren, Cady & Oakes, for defendants.
   Grant, J.

(after stating the facts). Complainant seeks to enjoin the defendants from the erection'of a dwelling house designed for two families, one on the first and the other upon the second floor. His theory is that there was a general restriction, binding upon the original owners and their subsequent grantees, that only a single dwelling house designed for one family should be erected upon each lot. The defendants have complied with the other alleged restrictions, and we need not discuss them. The restriction as claimed by the complainant would be valid. Harris v. Boraback, 137 Mich. 292; Watrous v. Allen, 57 Mich. 368. Restrictions in deeds will be construed strictly against the grantors and those claiming to enforce them, and all doubts resolved in favor of the free use of the property. 11 Cyc. pp. 1077, 1078. The principle governing restrictions of this character is not in doubt. The question is ably discussed in De Gray v. Club House Co., 50 N. J. Eq. 329. The court, after a full discussion of the principle and the authorities, so clearly states the law (page 340) that we quote it:

“Thelaw, deducible from these principles and the authorities applicable to this case, is that where there is a general scheme or plan, adopted and made public by the owner of a tract, for the development and improvement of the property, by which it is divided into streets, avenues, and lots, and contemplating a restriction as to the uses to which buildings or lots may be put, to be secured by a covenant embodying the restriction to be inserted in each deed to a purchaser, and it appears, by writings or by the circumstances, that such covenants are intended for the benefit of all the lands, and that each purchaser is to be subject to and to have the benefit thereof, and the covenants are actually inserted in all deeds for lots sold in pursuance of the plan, one purchaser and his assigns may enforce the covenant against any other purchaser and his assigns, if he has bought with knowledge of the scheme, and the covenant has been part of the subject-matter of his purchase.”

See, also, Sharp v. Ropes, 110 Mass. 381; McMurtry v. Investment Co., 103 Ky. 308; Sonn v. Heilberg, 38 App. Div. (N. Y.) 515; Summers v. Beeler, 90 Md. 474 (48 L. R. A. 54).

There is nothing in the plat or in the deed from the original grantors to the trustee, or from the trustee back to the original owners, to indicate any restrictions whatever. The original platters afterwards executed deeds of many lots, 16 of which contained no restrictions whatever, while others contained restrictions differing from each other, and only 1, the deed to Mary Sherman, contained any covenant or agreement to incorporate the restriction in other deeds.

Complainant sought by parol evidence to establish a common plan for the location and erection of the dwelling houses in the subdivision, and endeavored to show an understanding that a dwelling house for one family on each lot was intended. Even if restrictions could be thus established, the proof fails to establish the one contended for by the ■ complainant. The evidence goes no further than to show that there was an understanding that the subdivision should be used for residences, and not for business purposes. The subsequent conduct of the original grantors and their grantees shows clearly that the understanding went no further. Double houses have been built upon the same subdivision without objection, and complainant testified that he did not deem such buildings objectionable. There were such houses on the street when he bought. ■ Is a house more objectionable because built to accommodate two families on the same floor than when one is on the floor above ?

Complainant also testified that defendants’ house is not objectionable in appearance, and there are other houses upon the subdivision more objectionable than theirs. One of the original owners, complainant’s witness, testified that a house designed for two families was not detrimental to the street. Another witness for complainant testified that the five double dwellings then on the street are not detrimental to it. The defendants submitted their plans to complainant, and he stated that the building would look as good as two-thirds of those on the street.

If it be conceded that there was a valid restriction limiting each lot owner to “a dwelling” to be erected on his premises, we think the parties have construed that to mean a double house, or a house of two stories, to be ocupied for dwelling purposes by two families, as a compliance with the restriction.

This is not a case, as in, Harris v. Roraback, supra, where the restriction was to “one dwelling house to each lot,” and the grantors had incorporated that restriction in every deed they executed. Neither is it a case where, as in Gillis v. Bailey, 21 N. H. 149, “in order that the buildings erected thereon may not be crowded together, but may each be surrounded by a space of open ground,” it was agreed that “one single dwelling house, with a shed, barn, and other outbuildings requisite for the use of the same,” should be erected.

Complainant and other lot owners, including the defendants, have placed a construction upon the language of this restriction, and must be bound thereby.' Especially is this ■true where the complainant shows no damage by the erection of the building.

Other important and interesting questions are raised, but this disposal of the case renders it unnecessary to discuss them.

Decree affirmed, with costs.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    HOWE v. MOREY.
    1. Contracts — Action for Breach — Declaration—Sufficiency.
    Where plaintiff declared on the common counts in assumpsit, and furnished a bill of particulars, claiming for services and expenses incurred in logging operations on defendant’s land, and defendant was not surprised at plaintiff’s testimony that defendant agreed to take the work as plaintiff left it and pay his debts for labor, and also pay him for his services and expenses, a judgment for plaintiff will not be reversed on the ground that the declaration should have set forth both the inducement for and the terms of the agreement.
    2. Evidence — Exclusion—Harmless Error.
    Where, after sustaining an objection to a question asked plaintiff on cross-examination, the court withdraws the ruling and expressly permits defendant to go into the matter, the error in sustaining the objection is not prejudicial.
    3. Appeal and Error — Review—Insufficient Record.
    Where, in an action for services and supplies in logging operations, the evidence showed the value of the services and supplies, and an agreement binding defendant to pay therefor, an instruction that the verdict for plaintiff must be based on the agreement, irrespective of the value of the services, and, on finding the agreement, the verdict should be in such sum as plaintiff might be entitled to, cannot he held prejudicial, where the whole charge is not in the record, and there are no requests for instructions, and the amount of the verdict is not shown.
    Error to Missaukee; Chittenden, J.
    Submitted June 16,1905.
    (Docket No. 32.)
    Decided September 20, 1905.
    Assumpsit by Allen E. Howe against William J. Morey for work and labor done, and for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      E. E. Sawyer, for appellant.

      F. O. Gaffney, for appellee.
   Ostrander, J.

The plaintiff in this case claims that, with his partner, one Buck, he undertook to cut from defendant’s land certain hemlock timber, paying defendant stumpage therefor, and that his lumbering operations proceeded to a point where, on account of inability to market the logs or lumber, he was unable to pay the men employed by him or to immediately continue the work; that his partner agreed that he might make such terms as he could about the disposal of the logs and property at the camps; and that he did make an arrangement with the defendant, the owner of the land, by the terms of which defendant was to take the operations and property as plaintiff left them, including the camps and the logs cut and skidded, and to pay the debts for labor and supplies, and plaintiff for labor rendered by himself, his wife, and his team, and for the supplies which plaintiff had furnished and paid for in doing the work up to that time. In other words, plaintiff claims that defendant was to take the job as he left it, paying therefor as above stated. In the language of the record, in the testimony of plaintiff:

“Mr. Morey agreed to pay all claims against the job, and to pay my wife and me for our time. He also agreed to pay for the produce that I put in. I accepted that proposition. * * * He wanted to know how much the job cost me, and I told him as near as I .could. He wanted to know if I would sell for what it cost me, and I told him I would. There was no price agreed on that day before I went home. * * * I next saw Mr. Morey up at the camp, when I was there showing Mr. King around, and he told me to come over the next night and settle; but when I came he wouldn’t pay. We made no settlement, he was then in possession of the camp. I gave him a bill of all the claims against the job. It contained the men’s wages, my time, my wife’s time, and the stuff we furnished the camp. * * * I kept no copy of it.”
It is undisputed that defendant took possession of the logs and camps, continued the operations, and paid the men. He denies having made the arrangement plaintiff claims was made, and says that, on account of plaintiff’s inability to pay his men, they contemplated and threatened putting a lien upon the logs, and that to prevent that and save himself from loss he paid them and continued the work. Stated in another way, he claims that plaintiff and his partner abandoned their operations, and that he, Without making any bargain of any kind with them, took them up where the plaintiff stopped. Later on plaintiff sued defendant, declared upon the comfhon counts in assumpsit, and furnished a bill of particulars of his demand,
which is here set out in full:
“To 39 days’work performed by plaintiff as foreman between September 26 and November 4, 1899,
at §60 per month________________________________§90 00
To 39 days’ work performed by team during the same
time, at one dollar per day....................... 39 00
To 39 days’ work during the same time, performed
by plaintiff’s wife in cooking at the said camp____ 39 00
To hay............................................ 10 00
To flour........................................... 6 30
To potatoes........................................ 3 00
To canned fruit____________________________________ 12 00
To cabbage........................................ 2 00
To lumber in building and repairing camps........ 4 00
Total....................................§205 30
“ All of which said sums the defendant promised to pay to plaintiff upon the 1st day of December, A. D. 1899, in consideration of plaintiff turning over to the defendant said job, together with all logs cut and the benefits of all said labor performed and produce furnished, and which was done by plaintiff on the said 1st ¿lay of December, 1899.”

The plea was the general issue, with notice that defendant would show in his defense that if any labor was performed by plaintiff and his wife, and if any materials were furnished by him while at work on said lumber job, they were furnished for his own use and in his own behalf; that plaintiff and Buck abandoned the work, leaving a large amount of labor bills unpaid; that defendant never hired any of said labor to be performed, nor such materials to be furnished, and never agreed to pay for the same, either before or after it was performed, but that the timber being logged belonged to defendant, and, to save the same from confiscation under the lien law, he was forced to and did pay upwards of $200, and that, in order to save any portion of the logs and to make them merchantable, he was forced to expend a large amount of money in skidding, hauling, and banking the same; that the logs were cut in an unskillful and unworkmanlike manner, entailing a large amount of damage and expense upon the defendant; that the timber was cut to improper lengths, causing defendant loss in selling and disposing of it. These items of damage, the notice concludes, would be set off and recouped against any claim which plaintiff might have.

The first proposition raised by the assignments of error is that the testimony offered of the claim of plaintiff was inadmissible under the declaration and bill of particulars. In disposing of this objection, the learned trial judge said:

“I think," perhaps, I can shorten this matter somewhat by giving my idea on it and asking a few questions. It seems to me that, under the declaration and opening statement of the plaintiff, he must rely upon the agreement which, he claims, was made when Mr. Morey came back from seeing Mr. Buck; that if any such agreement was made, and I don’t assume that there was, that he told him he would pay all these bills, and pay him for his work and supplies; and that he has failed to pay for that. Could not that be proven under the declaration? The first specific contract, whereby they were to lumber certain logs and timber and do certain things, I hardly think would be material at this time or admissible. The plaintiff must rely, if he relies at all under this declaration, on the simple agreement of this man to pay for these goods and this work, if he did agree to it, and nothing else.”

Counsel for plaintiff, in reply to the objection made, says that the contract which he sought to prove, and did prove to the satisfaction of the jury, was one wholly performed on the part of the plaintiff, leaving nothing to be done by defendant but pay the money he agreed to pay; that the bill of particulars gave an itemized statement of plaintiff’s claim; and that there was no cause for defendant’s being misled or surprised at the time.

Unquestionably there is force to the objection made on the part of appellant. The rules of pleading would have been better observed if the declaration had set out both the inducement for and the terms of the contract alleged to have been made between the plaintiff and the defendant. We are not, however, disposed to reverse the case because of insufficiency of. the pleadings. It is not apparent upon the record that in fact defendant was surprised by the testimony offered or by the theory advanced by plaintiff’s counsel. As the trial proceeded the precise issue between the parties became clear, and after the defendant had been sworn as a witness it was stated by the court, without correction or contradiction offered, as follows :

“Now, in order that there may be no misunderstanding in the proofs here: This witness [the defendant] has sworn on cross-examination that he took possession of this property without any agreement whatever with this man; that he simply went on there and took possession of it. * * * In other words, on one side there is an agreement claiming to have been made by Mr. Howe and Mr. Morey,that Morey would pay Howe for his labor and for those supplies. This witness (Morey) denies that agreement, and says that he took possession of this property without any agreement or understanding whatever.”

For the purpose, as it was asserted, of showing that it was not likely that defendant would have made the agreement which plaintiff claims he did make, counsel for defendant, on cross-examination of plaintiff, the subject-matter being the manner in which the logs were cut, asked the following question:

“ Q. Were they cut in a good workmanlike manner ?
‘ ‘ Mr. Gaffney: Wait. That is opening the door toa very wide and very immaterial investigation in this matter. The question of the performance of that job between Mr. Morey and Mr. Buck isn’t in controversy here at all. The question in this case is, Was there a contract made between Mr. Morey ? Remember that counsel objected to the introduction of this contract between Buck and Morey. Now, if he goes into this line of cross-examination, that contract must be admitted.
Mr. Sawyer: It is claimed that Mr. Morey agreed to pay everything; all that that job cost up to that time. But it has already developed that this man could not sell that timber, and we have a right to show that he could not sell it because it was utterly mismanaged, because it was worthless, because it had no value whatever; and the jury have a right to know that this timber had no value whatever as it stood there, that it was worthless, and more than worthless, in order to show the improbability of Mr. Morey, a good business man, coming up and ágreeing to pay the plaintiff all that he had put into that job when it was worthless.”

The testimony was excluded. Further along in the trial, the defendant being called and sworn as a witness, he was asked by his counsel:

“ Q. Now, I will ask you if you know how much timber you got that was cut and skidded by Mr. Howe ? ”

To this an objection was interposed, and the testimony was excluded. On his cross-examination, he was asked:

“ Q. After you had made this agreement, and after you had taken possession of that job, you made arrangements with Gardner & Dominick by which they put a mill in there and cut and manufactured this timber, didn’t you ?”

To this counsel for defendant objected.

“The Court: The witness has said that he entered into possession of that job without making pny bargain. Is that right, witness ?
Witness: Yes; that is right.
The Court: Would it make any difference with this case, if Mr. Morey took possession of this man’s labor, whether it was worth anything or not ?
“Mr. Gaffney: Yes; as bearing upon his credibility, because he has stated that he never received any benefit from the work.
The Court: Well, if you go into that; I shall allow the defendant to go into the question of the amount of work done on those logs. * * *
“Mr. Gaffney: Let me understand the court.
“ The Court: Mr. Sawyer asked a question in regard to how many logs were skidded, or something of that kind. You objected to it. I sustained the objection. I now recall that ruling, and will allow Mr. Sawyer to go into it.
“Mr. Gaffney: Well, then, your honor, I will withdraw this question to save going into that matter. I withdraw it.”

Notwithstanding the withdrawal of the question, the court stated that in his opinion it was material to show what defendant took possession of and what it was worth, and that the question that counsel for defendant asked on direct examination as to what he did take possession of was material. The objection of plaintiff’s counsel to it was overruled, and counsel might govern themselves accordingly. After this ruling counsel for defendant undertook to interrogate his client, and, being told that his client knew nothing about the number of logs or the number of feet that were there of his own knowledge, made the following statement:

“I thought not. That is all, then. I cannot go into it. I thought so at the time I asked the question; but the court ruled, and so I didn’t find out.”

This left the case to stand upon the testimony of the defendant that he received no benefit from the labor which plaintiff had put upon the logs in question; that whether Gardner & Dominick allowed him any credit on that account he could not tell, because he had put a lot of work upon the logs himself, and had turned over to the manufacturer sleighs and camp equipage and other property, making it impossible for him to tell whether he received any credit on account of plaintiff’s labor on the logs. It is not apparent that defendant was injured by the rulings of the court of which he complains. The door was widely opened for him to show, if he could, the condition of the logs and the value of plaintiff’s labor upon them.

Certain portions of the charge are complained of. The seventh assignment of error is directed specifically to a portion of the charge which reads as follows:

“The amount of your verdict for the plaintiff, if any, must arise from the agreement, if any, made between the parties, and this amount must be arrived at, not because the services were worth that amount, but because it was agreed upon between the parties; that is, this jury, under the proofs, have practically nothing to say as to what the value of the plaintiff’s services on that job was worth. There has been no proof, practically, as to what their value was, but the plaintiff relies upon an agreement whereby he claims that the defendant was to pay him for these services — regardless of what they were worth, I might add — and that this agreement is the basis of his action here today; and, if you find that there was such an agreement, that the defendant agreed to take this job off Mr. Howe’s hands and pay him his time on the job, and for the supplies furnished, and for the team work, and for his wife’s services, then your verdict will be for the plaintiff in such sum as you may find from the evidence he is entitled to. But, if you find there was no such agreement made, your verdict will simply be no cause of action, because the plaintiff cannot recover in this action, unless there was such an agreement made between the parties.”

The complaint made is that the jury were told that there was no evidence as to what the services were worth, and that it was none of their concern whether they were worth anything or not; but, if they found that at a certain interview held between the parties nearly five years before the trial, the defendant had agreed to pay for everything that the plaintiff had put into the job, regardless of what it was worth, then they might find for the plaintiff such a sum as they guessed would be about right. The whole of the charge of the court to the jury does not appear in the record. Nor does it appear that counsel for the defendant preferred any requests to charge. It is not true, either, that there was no evidence given of the value of the services of plaintiff and his wife, or of the value of the work performed by the team, or of the supplies furnished by plaintiff. Such evidence as was given on the part of plaintiff was not disputed. It tended to show that the bill of particulars stated the items and the total correctly. What verdict the jury rendered, we do not know.

Confining ourselves to the errors which are assigned and the points which are made for appellant, we see no occasion to disturb the judgment. It is therefore affirmed, with costs.

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


text:
    THRALL v. GUINEY.
    1. Taxation — Double Taxation — Constitutional Provisions.
    Double taxation, in order to violate the constitutional rule of uniformity, must exist within this State, our courts not being concerned with taxes levied outside the State.
    2. Same — Corporate Shares — Foreign Corporations —Assessment.
    Under section 3831, 1 Comp. Laws, shares of stock in a foreign corporation owning property within and without the State, belonging to a resident of this State, are properly assessed to him here; the investment represented by such stock not being “property actually and permanently invested in business in another State” within clause 5 of the statute cited.
    3. Same — Proportionate Assessment.
    A resident of this State owning shares of stock in a foreign corporation which owns property in this and several other States, on which it pays taxes according to the law of the States where the property is situated, cannot complain of an assessment to him in this State of the value of his shares diminished by the proportion which the value of the corporation’s property in this State bears to its whole property.
    4. Same — Fourteenth Amendment.
    One who has the benefit of a construction of a tax law which, as construed, affects him no differently than it does any other citizen of the State owning property of the same class, cannot complain that his assessment violates the fourteenth amendment of the Constitution of the United States.
    Certiorari to Wayne; Rohnert, J.
    Submitted June20, 1905.
    (Calendar No. 21,166.)
    Decided September 20, 1905.
    Mandamus by George Thrall, administrator of the estate of Harrison H. Taylor, deceased, to compel Benjamin Guiney, Frank A. Altenbrandt, and Edward F. Marschner, board of assessors of the city of Detroit, to cancel an assessment of corporate stock. There was an order denying the writ, and relator brings certiorari. Affirmed.

      The plaintiff in certiorari, the relator below, is administrator of the estate of Harrison H. Taylor, deceased. Mr. Taylor, at the time of his death and for many years prior thereto, was a resident of the city of Detroit. In association with others he developed the Detroit Screw Works, a corporation organized and existing under the laws of the State of Michigan, into a large manufacturing institution. He was a large shareholder in the corporation. On March 31, 1900, the Standard Screw Company, a corporation organized and existing under the laws of the State of New Jersey, acquired the property of the Detroit Screw Works, and Mr. Taylor received in part payment for his stock in the Detroit Screw Works $39,700 of preferred stock, par value, of the Standard Screw Company. The Standard Screw Company is also the owner of manufacturing plants in the States of Massachusetts, Connecticut, Ohio, and Illinois. The property in Michigan constitutes about one-fifth of the entire property of the company. From the organization of the Detroit Screw Works its property has been regularly assessed in this State in the manner provided by law. Since the acquisition of the property by the Standard' Screw Company, the real and personal property has been regularly assessed in Detroit; the present assessed valuation thereof being $186,200. All of the other properties of the company are assessed and taxed in the respective States where the property is situated, in accordance with the laws of such States. The respondents are the assessors of the city of Detroit. They have assessed the stock of said estate in the Standard Screw Company at the sum of $31,760, deducting one-fifth of the value on account of the property of the company located in this State.
    The writ of mandamus to compel the respondents to strike the assessment of the stock from the rolls was refused. It was urged in the court below, as it is here, that:
    (a) The assessment against the Standard Screw Company upon its properties in -this State and in the other States above mentioned, and the assessment against said estate upon its shares of stock in said company, result in a double assessment upon the same property and upon the same value.

      (b) The assessment against the estate is illegal and contrary to the Constitution and laws of the State of Michigan.
    (c) The assessment is in violation of the Constitution of the United States, and constitutes a taking of the property of the estate without due process of law.
    So far as the facts challenge the justice of the taxation complained about, they are forcibly presented in language which we take from the brief for plaintiff in certiorari:
    “The precise question here in issue has never been passed upon in this State.
    “ In the case of Bacon v. Board of State Tax Com’rs, 126 Mich. 22 (60 L. R. A. 321), it was held that shares of stock in a foreign corporation were taxable, where all of the property of the corporation was outside of the State.
    “In the case of Stroke. City of Detroit, 131 Mich. 109, it was held that shares of stock in a foreign corporation were not taxable, where all of the property of the corporation was inside of the State.
    “The question here presented is whether stock in a foreign corporation is taxable, where a portion of its property is within the State and the remainder in other States. Speaking practically, this question is of much more general application than either of those heretofore decided. Many institutions like that in the case at bar have arisen in this State in recent years. In this case Mr. Taylor, in association with others, had built up a large manufacturing business. His interest was represented by stock in the Detroit Screw Works. Under the law, the property of the corporation was taxed, but the stock in the corporation was not taxed. Thus this property bore its proportionate share of taxation. For business reasons satisfactory to itself the corporation joined with other companies in other States engaged in the same line of business. All of these companies had property situated and taxed in the other States. The combination of the companies added nothing to the total of their property. Mr. Taylor, like the others interested, received stock in the new association or company in payment for his stock in the Detroit Screw Works. This exchange added nothing to the actual property. The actual property of the new company consisted simply of the combined properties of the old companies. The value of the stock in the new company depended solely and entirely on the value of the combined properties. Therefore the stock interests do not represent new property, but only the proportionate shares of the shareholders in property already in existence. In a sense, it may be said that the stock going to the shareholders of each constituent company represents their respective share in the property of that company.
    “Now, if these shares of stock are also subject to taxation, it results in double taxation, and places an extraordinary penalty on business associations with men engaged in the same line of business in other States. Of course, combinations of the same kind between companies in this State in the same line of business would not be subject to the same penalty. Unfortunately this penalty will fall upon the State itself; for if, by forming such associations, men subject themselves to double taxation, the inevitable result will be that they will remove from this State to those which pursue a more just and liberal policy upon this subject.
    “ The board of assessors have attempted to steer a middle course between the Bacon Case and the Stroh Case by deducting from the value of the stock the value of the property inside of the State. This, however, only obviates the difficulty pro tanto and still leaves actual double taxation as to the remainder. As we shall demonstrate later, there is no legal authority for this method of taxation,, nor is there any machinery for so doing. We are, therefore, clearly remitted to the question as to whether the Bacon Cpse or the Stroh Case shall control under the facts in this case.”

      Orla B. Taylor, for relator.
    P. J. M. Hally (Timothy E. Tarsney, of counsel), for respondents.
   Ostrander, J.

(after stating the facts). The attack of relator is made upon a particular assessment of property, and also upon legislation, or upon the construction of legislation, claimed by respondents to sustain the assessment. The statute (1 Comp. Laws, § 3831) reads as follows:

For the purposes of taxation, personal property shall include: * * *
“5. All goods, chattels, and effects belonging to inhabitants of this State, situate without this State, except that property actually and permanently invested in business in another State shall not be included. * * *
“7. All shares in corporations organized under the laws of this State, when the property of such corporations is not exempt, or is not taxable to itself; or when the personal property is not taxed.
“8. All shares in banks organized within this State, under the laws of this State or of the United States, at their cash value, after deducting the assessed value of real property owned by and assessed to such banks.
“9. All shares in foreign corporations,.except national banks, owned by citizens of this State.”

The language of the statute does not suggest a rule of taxation not uniform. It is said in the case of Stroh v. City of Detroit, 131 Mich. 109, the statute having been applied by taxing officers according to its terms, that the result was not consistent with the policy of the State nor the constitutional rule of uniformity. In that case the owner of stock in a foreign corporation, the entire property of which was in Michigan and was taxed in Michigan, was assessed the value of his shares. It was held that the assessment of the shares should be vacated. In Bacon v. Board of State Tax Com'rs, 126 Mich. 22 (60 L. R. A. 321), also, the law was applied by the taxing officers according to its terms. An owner of shares of stock in a foreign corporation was assessed the value of his shares. It appeared that the property of the corporation was situated and was taxed outside the State. The assessment of the shares was sustained. In each of these cases there was, in fact, double taxation of property, if the shares of stock are considered as mere evidence of the interest of the holder of them in the property of the corporation. In only one of the cases was there such double taxation in this State. It is plain that the constitutional rule can apply only to the taxing of property by this State, and, this being so, judicial interference with the subject can go no further than to see that as to taxes levied by and within the State the rule is observed.

Has the legislature exempted these shares of stock from taxation ? It is said that the facts make a case to be governed by the provisions of clause 5, above quoted, and that proper construction would be expressed by the formula that shares of stock in foreign corporations shall he subject to taxation, except when the property is actually and permanently invested in business in another State. We are of opinion that this contention must be held to be disposed of against relator by the decision in Bacon v. Board of State Tax Com’rs.

It is said, also, that there is no statutory provision for taxing the stock of a foreign corporation after deducting the value of its property within this State. Undoubtedly this is true, and it is also true, as pointed out, that if assessors are to adopt the method pursued in this case, in assessing citizens of this State who own shares of stock in foreign corporations having some property within the State, difficulties will arise in fixing values of such shares for the purposes of assessment. In the case before us there has been an assessment of the shares of relator, which he consents is a proper one if they are held to be assessable. We are of opinion that such shares were taxable, and, whatever difficulties may arise in other cases, that he cannot complain of the particular assessment made. There are many difficulties in the assessment of property under laws designed and framed, so far as' general enactments can be framed, to insure recognition and operation of constitutional requirements. Courts must meet and deal with such matters as they arise. We are not here required to say more than that we find no reason to interfere with the assessment complained about.

It will be of little benefit to enter upon a discussion of the contention of relator that the particular assessment violates rights secured to him by the fourteenth amendment to the Constitution of the United States. It is in testing the legislation by the Constitution of our own State that we have experienced difficulty. In the particular case, relator has the benefit of a construction of the law to which we are committed, and which affects him no differently than it does any other citizen of the State owning property of the same class.

The court rightly refused the writ, and the judgment is affirmed.

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


author: Hooker, J.

text:
    MOORE v. WAYNE CIRCUIT JUDGE.
    Banks and Banking — Receivers — Deposits with State Treasurer — Duty of Court.
    Section 6144, 2 Comp. Laws, requires receivers of State banks to pay over all money collected by them to the State treasurer, and it is the duty of the circuit court to require its receiver to comply with such requirement.
    Mandamus by George W. Moore, State bank commissioner, to compel Joseph W. Donovan, circuit judge of Wayne county, to issue an order requiring the Union Trust Company, receiver of the City Savings Bank of Detroit, to turn over all money collected or received by it as such receiver, to the State treasurer.
    Submitted June 22,1905.
    (Calendar No. 21,133.)
    Writ granted September 20, 1905.

      John E. Bird, Attorney General (Roger Irving Wykes, of counsel), for relator.

      Henry M. Campbell and Frederick W. Whiting, for respondent.
   Hooker, J.

Section 6144, 2 Comp. Laws, requires that receivers of State banks “pay over all money so collected or received to the State treasurer,” etc.

The Union Trust Company, acting as receiver of the City Savings bank of Detroit, has not complied with this statute, and the respondent, before whom the proceedings are pending, has refused to order compliance, and an application is made to this court to compel such action. We see no ambiguity or uncertainty in the language of the statute. With the question of the wisdom of such legislation we have nothing to do. Real or imaginary inconvenience to parties has no effect upon the question.

The writ will issue, requiring the court to order the payment of all money collected or received by the receiver to the State treasurer forthwith.

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


text:
    LINGLE v. DALZELL.
    1. Appeal and Error — Record—Judgment.
    An objection to the review of a case on error because the record contains no judgment is not tenable where the return shows a judgment entry and the bill of exceptions as printed refers to a judgment.

      % Property — Ownership—Evidende—Suepioienoy.
    Testimony by plaintiff and her husband that she bought certain personal property of a corporation, giving the circumstances and consideration, together with a bill of sale by the corporation, the execution of which was proved, is sufficient prima facie to establish title in plaintiff, though record evidence of authority by the corporation to execute the bill of sale was offered and excluded.

      3. Same — Negative Testimony.
    Testimony of witnesses that they had never heard that plaintiff owned the property or of any bill of sale was merely negative and should have been excluded.
    Error to Leelanaw; Mayne, J.
    Submitted June 22, 1905.
    (Docket No. 49.)
    Decided September 20, 1905.
    Replevin by Jennie M. C. Lingle against John Dalzell. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      Dwight D. Root, for appellant.

      Parm C. Gilbert, for appellee.
   Hooker, J.

The plaintiff brought replevin for certain household goods, which the defendant had seized for taXoS upon the real estate of the Traverse Beach Association, upon the assumption that the property taken belonged to such association. It is conceded that the only question in the case was whether plaintiff was the owner of the goods, and this question was left to the jury. A verdict was found for the defendant, and the plaintiff has appealed.

It is the contention of the plaintiff’s counsel that the undisputed proof shows her ownership; while defendant’s counsel says that there was proof to the contrary, and, furthermore, that plaintiff’s proof failed to establish such ownership. It is further stated that the record does not embody a judgment, and therefore there is nothing which this court can review upon error. An examination of the return shows a judgment entry, and reference is made to a judgment in the bill of exceptions as printed.

A deposition of the plaintiff contains the statement that she had been the owner of the property since March, 1896, and had possession and control of it since, and paid taxes upon it, and received compensation for its use from the Traverse Beach Association, from whom she purchased it for a substantial consideration. Another deposition of plaintiff’s husband contains the statement that the property was mortgaged by the association to E. P. Bacon for a loan of $1,229.43, and, the note given not being paid, he started to foreclose the mortgage, when the board ordered a sale of the furniture to the plaintiff, who agreed to and did pay the note in consideration thereof, taking a bill of sale therefor. The bill of sale was offered and admitted over defendant’s objection that requisite proof of execution was not made; the original bill not being attached to the deposition. There was testimony by Rathbun proving the execution and the seal, and we think this was sufficient to authorize its admission.

It is claimed that there should have been record proof that the bill of sale was authorized. Such proof was offered and excluded. The case stands, therefore, as though there were no such record. The bill of sale was sufficiently proved, and also the consideration paid and the delivery of the property by those having the management of the association’s affairs. This was sufficient. We are of the opinion that there was a prima facie case of ownership, and that the defendant offered no proof to the contrary. Several witnesses were allowed to testify that they never heard that plaintiff owned the property, or of any bill of sale of the property. This was negative testimony, and not admissible. The fact that it was used in the hotel was not inconsistent with plaintiff’s ownership or her claim. The court should have directed a verdict for the plaintiff.

The judgment is reversed, and a new trial ordered,

McAlvay, Blair, Montgomery, and Ostrander, JJ., concurred.


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    PORTAGE GRANGE, NO. 16, PATRONS OF HUSBANDRY v. PORTAGE LODGE, NO. 340, FREE AND ACCEPTED MASONS.
    Landlord and Tenant — Lease — Construction — Waiver of Provisions.
    Where a lease of lodge rooms by one lodge to another, to be used in common by the lessor and lessee, provided that they should not be leased or rented to any other lodge, “without a two-thirds majority of both lodges,” the permitting of another lodge affiliated with the lessee and also one affiliated with the lessor to occupy the rooms by common consent or acquiescence, was not a waiver of such provision, which entitled the lessor to rent the same to a third organization against the objection of the lessee.
    Appeal from Kalamazoo; Adams, J.
    Submitted June 22, 1905.
    (Docket No. 48.)
    Decided September 20, 1905.
    Bill by Portage Grange, No. 16, Patrons of Husbandry against Portage Lodge, No. 340, Free and Accepted Masons, and others to restrain defendants from interfering with complainant’s lessee. From the decree rendered, complainant appeals.
    Affirmed.

      Howard & Howard, for complainant.

      Alfred S. Frost and Alfred J. Mills, for defendants.
   Ostrander, J.

The facts are somewhat complicated. Generally, and sufficiently for our purposes, they may be stated as follows: Complainant and defendant Masonic Lodge No. 340 occupy the relation of lessor and lessee, respectively, under a written lease, construction of which lease is involved and is made in the decree. The provision of the lease with which the parties are principally concerned is:

“The said party of the first part [complainant] reserves the use of the second story equally with the said party of the second part, together with all its furniture and fixtures, but reserves the full right and control of the remaining described property, to lease, let, or rent without the consent of the said party of the second part. It is understood by and between the two parties of this instrument that the upper hall is to be used only for lodge purposes and the transaction of their business, and cannot be leased or rented to any lodge without a two-thirds majority of both lodges.”

Complainant did lease these rooms to defendant Ladies of the Modern Maccabees, a "body having a lodge system and which on various occasions occupied the lodge rooms. This occupancy was interfered with and the meetings interrupted by persons alleged to represent or be members of the Masonic Lodge, which order had not consented to such leasing and occupancy, and the bill in this cause was filed. The principal relief prayed for is an injunction restraining said lessee and certain individuals, named, from ‘further interfering with meetings of the Ladies of the Modern Maccabees. A good deal of testimony was taken. The decree entered denies complainant any relief. Complainant has appealed.

It is insisted on the part of the complainant, and is the principal contention here, that, because by mutual consent of the parties to the original lease — at least, by mutual acquiescence — the Order of the Eastern Star had been permitted to occupy the rooms, the defendant Masonic Lodge waived the provision of the lease above quoted. It appears, however, that by the same mutual consent an order known as the “Pomona Grange” was permitted to occupy the rooms. These last-named orders are in some ways affiliated, respectively, with the Masons and with the Grangers. It would be of no general interest and would profit no one to set out the testimony showing the connection between these orders, nor the course of conduct of each. The question presented is a mixed one, involving both law and fact. The circuit judge was warranted in his conclusion, in view of the evidence, that there was no waiver by defendant lessee of the provision of the lease against letting to other orders. We think, also, the court rightly construed the lease. A careful reading of the record and of the briefs of counsel has convinced us that the decree ought not to be set aside or modified in favor of the party appealing. It is affirmed, with costs of this court to defendants, other than Portage Hive, No. 326, Ladies of the Modern Maccabees.

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


text:
    FIRST NATIONAL BANK OF TRAVERSE CITY v. TOWNSHIP CLERK OF UNION TOWNSHIP.
    Mandamus — Township Officers — Purchase of Machinery — Interest Antagonistic to Township.
    Mandamus, being to some extent a discretionary writ, is properly refused when sought to compel the certification of the amount due on a township order given for the purchase of road machinery by the township board, in which the supervisor had an interest by way of compensation received from the seller of the machine.
    Certiorari to Grand Traverse; Mayne, J.
    Submitted June 27, 1905.
    (Calendar No. 21,085.)
    Decided September 20, 1905.
    Mandamus by the First National Bank of Traverse City to compel the township clerk of Union township to certify an amount to the board of supervisors for the purchase of a road machine. There was an order denying the writ, and relator brings certiorari.
    Affirmed.

      John W. Patchin, for relator.

      Parm C. Gilbert, for respondent.
   Ostrander, J.

On or about December 17, 1902, pursuant to the provisions of Act No. 173, Pub. Acts 1897 (2 Oomp. Laws, §§ 4193-4197), the commissioner of highways for the township of Union, in the county of Grand Traverse, upon the joint request of a majority of the overseers of highways of such township in writing, and with the assent of the township board of the township purchased for the use of the township, upon credit, from a manufacturer of road machines through the agent of such manufacturer, a road roller. In accordance with the contract of purchase and sale, a township order was drawn, registered by the clerk of the township, a true copy filed by him in his office, delivered to the vendor, and by the vendor assigned to relator and plaintiff in certiorari, a copy of which order follows:

“To the Treasurer of Union Township in Grand Traverse County, State of Michigan:
“Whereas, the commissioner of highways of your said township has heretofore duly contracted for and purchased of C. W. Carter & Co., in pursuance of the laws of the State of Michigan, one Carter patent snow roller:
“You are hereby directed and required to pay to said C. W. Carter & Co., of St. Johns, Michigan, or order, out of the highway fund of said township ($500) five hundred dollars, the contract price therefor, as per contract as follows: $100 on the 1st day of March, 1904; $100 on the 1st dayof March, 1905; $100 on the 1st day of March, 1906; $100 on the 1st day of March, 1907; $100 on the 1st day of March, 1908 — with interest at the rate of six per cent, per annum, payable annually, from the 20th day of December, 1902, at First National Bank, in Traverse City, Michigan.
“Witness our hand and seal as highway commissioner and supervisor of said township, this 17th day of December, 1902.
“D. McAley, Highway Commissioner.
“ C. M. Hager, Supervisor.”

Nothing has been paid on the order. It is alleged that no money has been provided by the township for payment of the order, because the clerk of the township, respondent below, declined to certify the amounts due upon the order as sums to be included in the budget of the township. Relator filed its petition in the circuit court for the county of Grand Traverse for a mandamus to compel the clerk to make the necessary and proper certification, so that a tax could be spread to pay the amount due on the order. To this petition an answer was filed, and a replication, which called for the framing of issues, and 25 issues were framed and ordered to be submitted to be determined as issues of fact. The matter was brought to hearing before the court and a jury.

The answer of the respondent to the order to show cause alleges various reasons why the contract made for the road roller ought not to be performed on the part of the township, and sets out conduct of the supervisor, at the time the contract was procured and the order given, in support of the claim that proper official, action was wanting. In the progress of the hearing in the circuit court, the supervisor, whose name* appears in the action to purchase the machine, was called as a witness for relator and gave testimony. The jury were excused from the court-room, and the court said to counsel, among other things:

“Theaction of the township board as such is necessary to constitute a legal contract or agreement for the purchase of this machine. Whatever it may be, under the statute some action must be taken. In this case, the supervisor’s testimony is that he was to receive and did receive compensation from the owners of the machine. This compensation consisted in pay for the time which he spent in working for them. In this case it was only $22.50 —probably an amount that was not more than sufficient to pay him, but in the view that I take of the matter it does not matter. It is not material whether he received from the seller of the machine $1 or $100. An officer acting for and in behalf of the township cannot be in the employ of a party contracting with the township in relation to the very matter which is to come before the board, and the fact that in this case the compensation was none too much, probably, I consider is entirely immaterial, and the fact that the parties were honest and that he was 'acting in an honest manner — simply got his day’s pay — is immaterial also. The policy of the law is not such that these wholesalers can go around and employ township officers to go around with them in order to get the article sold, and then sit on the township board and act in behalf of the township. Now, for this reason, it seems to me that, unless this testimony is to be contradicted, the facts that I have indicated would be conclusive of the question in this case.”

After hearing from counsel, the jury were recalled, and the supervisor was again called to the stand and gave further testimony, which, while it may be said to soften, in no way changes, the facts as stated by the trial judge. The court thereupon iustructed the jury that there was no question for their consideration, discharged them, and denied the writ.

It seems to be conceded upon the record that the township never accepted or used the road roller. Counsel for respondent states in his brief that the “sole question decided by the circuit court was that the so-called order was voidable by having been obtained by means contrary to public policy.” The granting of the writ of mandamus by a court involves to some extent the exercise of discretion. The relator occupies no different position, and has no greater legal or equitable right to consideration, than its assignor would have.

The determination of the court below was warranted, and the judgment is affirmed.

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


author: Per Curiam.

text:
    JONES v. WAYNE CIRCUIT JUDGE.
    Mandamus — Propriety of Remedy — Leave to File Amended Pleading.
    This court will not interfere by mandamus to compel a7circuit judge to vacate an order denying a motion for leave to file amended pleadings, the order being reviewable on error after judgment.
    Mandamus by Clarence R. Jones, administrator de bonis non of the estate of James A. Jones, deceased, to compel Henry A. Mandell, circuit judge of Wayne county, to vacate an order denying a motion to file an amended declaration.
    Submitted November 15, 1904.
    (Calendar No. 20,633.)
    Writ denied September 28, 1905.

      Lehmann & Riggs, for relator.

      John D. Conely, for respondent.
   Per Curiam.

The question in this case is whether this court should interfere by mandamus to compel the circuit judge to vacate an order denying a motion for leave to file an amended declaration; said motion having been made before trial of the cause, which has not yet taken place.

The question is properly reviewable on error after judgment, if the proper exception was taken, by including the proceedings in the bill of exceptions. See People v. Anderson, 53 Mich. 60; Pangborn v. Insurance Co., 67 Mich. 683; Skutt v. Kent Circuit Judge, 136 Mich. 477; Snyder v. Quarton, 47 Mich. 211. This being so, mandamus will not lie.

The writ will be denied.


author: Moore, C. J.

text:
    WILKINSON v. DUNKLEY-WILLIAMS CO.
    Appeal and Error — Degree Granting Injunction — Effect op Appeal.
    Though the effect of an appeal from a decree granting a permanent injunction is to bring the cause into this court and to stay all proceedings at the circuit, its effect is not to dissolve the injunction, and pending the appeal the injunction may not be ignored.
    Contempt proceedings by Thomas L. Wilkinson against the Dunkley-Williams Company for violating an injunction.
    Submitted July 26, 1905.
    (Calendar No. 20,623.)
    Application granted September 28, 1905.

      Samuel H. Kelley, for petitioner.

      Osborn & Mills, for respondent.
   Moore, C. J.

The complainant filed an injunction bill. A preliminary injunction 'was granted in the court below, and, after a hearing, a permanent injunction was decreed as prayed. The case was appealed to this court, and an appeal bond in the sum of $5,000 was given. The case has been heard and affirmed in this court. See 139 Mich. 631. ■

It is the claim of complainant that pending the appeal the defendant violated the provisions of the injunction, and he seeks in this proceeding to have it punished for contempt.

It is the claim of defendant, first, that, if the injunction is in force pending the appeal, it has not violated its terms; and, second, that the effect of appealing the case here, and giving the bond, is to stay all proceedings pending the appeal, and to do away with the effect of the injunction.

There can be no doubt that the effect of the appeal is to bring the case into this court and to stay all proceedings in the circuit court. See seetion 551, 1 Comp. Laws; Daily v. Litchfield, 11 Mich. 497; Beal v. Chase, 31 Mich. 490; Day v. De Jonge, 66 Mich. 550; Petrie v. Muskegon Circuit Judge, 98 Mich. 130; Wright v. King, 107 Mich. 660. It does not follow, however, that where an appeal is taken from a. decree granting an injunction that the terms of the injunction may be ignored. In Brevoort v. City of Detroit, 24 Mich. 322, upon the filing of the bill a preliminary injunction was granted. Upon the hearing the bill was dismissed. An appeal was taken to this court, and pending the appeal an application was made here to have defendants punished for contempt. This court held that the appeal from a decree dismissing the bill did not revive the injunction and that the defendants were not liable as for contempt. In 2 Enc. Pl. & Prac. p. 326, it is said:

“Appeals from Orders Affecting Injunctions. Thus an appeal from a decree granting, refusing, or dissolving an injunction does not disturb its operative effect, unless the trial judge in allowing an appeal therefrom is vested with discretion to make and does make an order suspending or modifying the injunction during the pendency of the appeal.”

In the note it is said:

“An appeal from an injunction order, even with a supersedeas bond, does not vacate or suspend it. The defendant must abstain from doing the prohibited thing until reversal or be guilty of contempt.”

In 16 Am. & Eng. Enc. Law (2d Ed.), p. 436, itis said:

“The violation of an injunction pending an appeal is a contempt, and is punishable as such. It is well settled that an appeal from an order granting an injunction or from a decree for a perpetual injunction does not operate as a supersedeas, and does not permit the defendant to disregard the injunction.”

See Kentucky, etc., Bridge Co. v. Krieger, 91 Ky. 625. In Sixth Avenue R. Co. v. Gilbert Elevated R. Co., 71 N. Y. 430, it was said:

“The order of the judge was in substantial compliance with the statute, and stayed ‘ all proceedings on the part of the plaintiff in execution of the judgment.’ But this did not affect the validity or effect of the judgment pending the appeal, so far as it bore upon and restrained the action of the defendant, its servants or agents. It did not absolve them from the duty of obedience, and permit them to do that which the judgment absolutely prohibited, and the doing of which would, as adjudged by the court, cause irreparable mischief to the plaintiff, or an injury which could not certainly be compensated in damages. * * * The statute does not, and the judge’s order staying the plaintiff did not, and could not, derogate from the efficiency of the judgment in its operation upon and effectually restraining all acts by the defendant in violation of its mandate. The court should have, and doubtless has, the power, notwithstanding an appeal, especially so long as the action is pending in the same court upon an appeal from the Special to the General Term, to command respect for its judgments and obedience to its mandates until they are reversed. This power is essential to the administration of justice, and to the respect which courts of justice have a right to demand from suitors. It would seem to be preposterous that a party could, by the mere order of the court staying his hands from executing a judgment not yet executed, be deprived of the whole fruit of the judgment by the lawless act of the defeated party pending an appeal, without remedy; that he must stand by, and without possibility of redress, see the subject-matter of the litigation destroyed, so that if he succeeds in affirming the judgment it will be a barren victory.
If the respondent here is right in its contention, pending an appeal from a judgment staying waste, which, if committed, will destroy the freehold, the appellant, in simply staying the plaintiff’s proceedings on the judgment, may with impunity do the very act forbidden and destroy the freehold. This would be to give the latter injunction, staying action by the one party upon the judgment, effect as working a dissolution of the permanent and general injunction, before granted, restraining the other party from doing any act affecting the subject of the litigation. The judgment, so far as it enjoined the defendant, needed no execution. It acted directly without process upon the defendant, and the stay only operated to prevent the collection of the costs awarded.”

See, also, Hicks v. Michael, 15 Cal. 107; Ortman v. Dixon, 9 Cal. 23; State, ex rel. Matthews, v. Chase, 41 Ind. 356; 2 High on Injunction (3d Ed.), § 1698; Central Union Telephone Co. v. State, 110 Ind. 203; Heinlen v. Cross, 63 Cal. 44.

The effect of the appeal is not to dissolve the injunction, and while it continues in force it may not be ignored. Did the defendant violate its terms ? It would profit no one to review the evidence; but we think it clear the defendant did ignore the provisions of the injunction, and should be punished as for contempt.

The extent of the punishment and the need of a reference will be determined on the settlement of the decree.

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


text:
    WITHEY v. PERE MARQUETTE RAILROAD CO.

    1. Carriers — Inpants—Baggage—Loss—Liability to Parent.
    A father, paying full fare for himself, traveling with an infant of such tender years that by custom no fare is demanded for its carriage, may recover upon the contract of carriage, for the loss or injury of articles bought and used for the child, which articles are a part of the father’s baggage.
    2. Same — Wipe’s Jewelry.
    Where a husband buys railroad tickets for himself and wife, and has their baggage checked thereon, the contract of carriage is with him as to both of them, and he can recover thereon for the loss or injury of articles of jewelry belonging to her, which were not given or furnished by him.

      3. Evidence — Opinions—Value—Experts.
    In an action against a carrier for injury to bagg.age, witnesses who have inspected various articles of wearing apparel claimed to have been injured, may, after describing the injuries, state the amount, which, in their opinion, such articles are depreciated in value by the injuries. ,
    4. Trial — Injury to Chattels — Inspection by Jury.
    Refusal of the court to require production before the jury of articles of wearing apparel claimed to have been injured by defendant, held, not an abuse of discretion, defendant’s witnesses having been given full opportunity to inspect them before trial.
    Error to Kent; Perkins, J.
    Submitted January 10, 1905.
    (Docket No. 29.)
    Decided September 28, 1905.
    Assumpsit by Charles S. Withey against the Pere Marquette Eailroad Company for breach of contract of carriage. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Frederick W. Stevens (Charles McPherson, of counsel), for appellant.

      Crane & Norris, for appellee.

       Rehearing denied November 6, 1905.

   Ostrander, J.

On Saturday, December 26, 1903, plaintiff, his wife, and their 21 months’ old child were passengers on defendant’s road from Monroe, where they had passed Christmas with relatives, to Grand Eapids, their home. As baggage they had on the same train two trunks. These trunks contained various articles of dress and of the toilet; some intended solely for the use of the infant. They contained, also, some articles of jewelry used by and intended for use by the wife, which had been given her by others than her husband, which she took to Monroe with her on her visit, and some gifts made to plaintiff and his wife and to the child at Monroe.

Plaintiff purchased at Monroe two full fare tickets to Grand Eapids, no ticket for the infant, checked the trunks, and received the checks issued for them. At East Paris, near Grand Rapids, the train in question was in collision with an east-bound passenger train. On the following Monday the baggage was delivered at plaintiff’s place of residence, and later, at defendant’s freight depot, plaintiff’s wife picked out from a quantity of goods certain articles which had been in the trunks. As delivered, the trunks, which were broken, contained a portion only of their original contents, and also articles, some of them greasy, not belonging to plaintiff or his wife, coal, and pieces of earth or mud. The contents of the trunks were mussed, and some of them stained and greased and spotted with mud. In January, 1904, a claim, which reads: “ I herewith present my claim for damages sustained by Mrs. Withey and myself in your wreck of December 26, amounting to $386.25” — with a list of articles and figures, was presented to defendant, and later plaintiff began this suit.

The action is assumpsit. Liability of defendant is predicated upon the contract of carriage, the nonperformance of the contract by defendant, and the injury of the baggage. No contention was made in the court below respecting the negligence of the defendant and resulting liability to pay plaintiff the damages he sustained.

The case comes here upon 25 assignments of error, which may be grouped, and which counsel for defendant has grouped and discussed, under four propositions. Stating these propositions as they are understood, and in the order in which they will be discussed, they are: (1) That plaintiff was not entitled to recover (as he did) for destruction of and damages to articles intended for the sole use of the infant; (2) that he was not entitled to recover (as he did) for loss of and damages to the articles of jewelry belonging to his wife; (3) that the court improperly admitted opinion evidence as to the amount' or sum of the damage to particular articles; and (4) that the court should have required, upon defendant’s application, production of the damaged articles, so far as they could be produced, for exhibition to the jury.

1. It is contended that, because no fare was paid for the infant — because it was carried free — the defendant “was a gratuitous bailee as to the baby, and the transportation as baggage of articles intended solely for its use was a mere incident to that gratuity,” and the case of Flint & Fere Marquette B. Co. v. Weir, 37 Mich. 111, is relied upon to sustain the contention. In that case the form of action was, as it is here, assumpsit. The plaintiff, on a passage from Detroit to Saginaw upon defendant’s road, lost, as he claimed, his trunk, containing personal effects. It appeared that both plaintiff and his trunk were being carried, not for hire, but gratuitously. It was held that, in the absence of a contract for carriage, damages for loss of the baggage could not be recovered in assumpsit. The rule in the case cited does not control the present case. Even if it can be said that the child was carried free, a point which we do not consider, it by no means follows that the articles in question, the child’s wearing apparel, were carried free. The clothing of the infant was the property of the father, and was in the trunks of the father, with whom the defendant had made a contract of carriage, both of his person and his baggage.

While it is asserted on the part of defendant that it had the right to charge for the carriage of the infant, it is not claimed that under its rules and practice it does charge anything for the carriage of infants of the age of plaintiff’s child. Nor do we base our determination at all upon the fact, which appears in the record, that the infant occupied for hire a seat in the parlor car during the trip. What we hold, and what we think the correct rule of law, is that a father, paying full fare for himself, traveling with an infant child of such tender years that by custom no fare is demanded for its carriage, may recover upon the contract for carriage for the loss or injury of articles bought and used for the child, which articles are a part of, and packed and carried with, his baggage, and upon the ground that such articles are the property of the parent, in his possession, and properly a part of his proper baggage. Prentice v. Decker, 49 Barb. (N. Y.) 21; Burke v. Railroad Co., 7 Heisk. (Tenn.) 451; Wheeler v. Railroad Co., 31 Kan. 640; Smith v. Abair, 87 Mich. 62, 63.

2, We have before us no question concerning the right of the husband (plaintiff) to recover for injuries to the ordinary wearing apparel of his wife. The contention relates entirely to articles of jewelry, lost or injured, which were not given or furnished by her husband. It is defendant’s position that, these being the separate and sole property of the wife, the husband, under the circumstances shown, could not recover for their loss or injury. In his charge the court said to the jury:

“Some question has been raised by defendant’s counsel to the effect that the articles contained in this trunk which had been previously given to the plaintiff’s wife by others, and which were taken by her to Monroe on this trip as a part of her wardrobe, ought not to be included in your consideration. These articles áre the cameo pin set in pearls, the silk liberty scarf, the set of gold beads, the emerald wreath set in pearls, and perhaps some other articles.
“But after some consideration (although not without considerable hesitation) I have concluded, under the circumstances admitted in this case, to submit that question to you in relation to these articles thus enumerated. I feel somewhat certain that the husband had such special property in these articles by reason of his possession that he would be entitled to recover their value, if lost, notwithstanding they were the special property of the wife.
“I therefore instruct you as to these articles, which were the wife’s property, * * * and which you believe, under the evidence, were either lost or damaged, shall be taken into consideration by you in fixing the amount of damages sustained by the plaintiff. * * * ”

Error is assigned upon this portion of the charge, and is also assigned upon the refusal of the court to give defendant’s eleventh request to charge, which was:

‘ ‘ The plaintiff is not entitled to recover for the loss of or damage to any article belonging to his wife which had not been purchased with funds furnished by the plaintiff.”

Of this request it is said by counsel for plaintiff that—

“The defendant contends that in no case can any recovery be had, unless the plaintiff establishes an absolute title to the articles, notwithstanding that the plaintiff was the bailor and the defendant was the bailee, and undertook with the plaintiff to carry the trunks safely.”

We do not so understand the position of counsel for defendant. No one will contend that in all cases a bailor must show absolute title to the thing bailed in order to maintain an action against the bailee for injury to the subject of the bailment. The question in this case is whether, under the circumstances shown, plaintiff, with respect to the particular chattels, had the interest necessary to enable him to maintain this action. I have been of opinion that upon the facts and the declaration, which avers a contract between the parties to transport plaintiff’s baggage, of which baggage the articles in question are averred to have been a portion, it must be held that the plaintiff cannot recover the value of the particular property of the wife. My Brethren who sat in the case are agreed, and there is reason and authority to sustain them, that the verdict and judgment are right, and that the recovery may be and should be sustained upon the ground that the contract to carry plaintiff and his wife and their common baggage was a contract with the plaintiff. Jacksonville, etc., R. Co. v. Mitchell, 32 Fla. 77 (21 L. R. A. 487); Baltimore Steam Packet Co. v. Smith, 23 Md. 402. Analogous decisions are those in Blanchard v. Page, 8 Gray (Mass.), 281; Moran v. Packet Co., 35 Me. 55. See, also, Hutchinson on Carriers, § 724. It is not claimed that the articles in question were not proper baggage for the wife. In a sense, the question presented is one of general commercial law, in view of which I yield my own opinion to that of the majority.

3. It is necessary, in considering this proposition, for a better understanding, to make further reference to the record. The plaintiff, his wife, and others were sworn as witnesses for the plaintiff. Each of them had made some examination of the articles about which they gave testimony. Excepting plaintiff’s wife, each was permitted, over objection, to estimate in dollars the amount of the injury described by them, or to state the injury in fractions of the value before injury, as that the damage was one-fourth or one-half of the original value of the articles, or that for the purpose for which they were purchased they had no value. The witnesses Smith, Schwartz, Remington, and Berry, called by plaintiff, were treated by counsel as expert witnesses, and each gave answers to hypothetical questions. It is evident that, whether included in the hypothetical question or not, and it usually was, the answer of each witness as to amount of damage was based in part upon a personal inspection of the injured article. A witness with 25 years’ experience in dry goods was asked by plaintiff’s counsel:

“ Q. Assuming that that gown was made late in the fall of 1903 by Miss Remington, cost $85 when delivered, and was worn the second time, that it had been through a railroad collision, been to the cleaner’s, and left after cleaning in the shape it is now, state what in your opinion would be the value of that gown in the present condition for Mrs. Withey’s use and wear.
“A. The gown having been injured, the purpose for which it was made is absolutely destroyed. A gown which is made for a dressy dress, to be worn as a dress for dress occasions, when it has become soiled or spotted or injured so that it shows, its value for that is lost entirely ; and it is not a gown that is adapted for ordinary uses. She did not buy it for a house dress or street dress. Its value is gone. * * * I should not consider it had any money value for the purposes for which it was made. It has lost it by its damage.”

Another witness, the dressmaker who made the gown, testified that in her opinion it was damaged one-half, or $42.50. These examples acquaint us fairly with the grounds of the exceptions taken. As to two rather expensive dresses, an opera cloak, and the overcoat of the plaintiff, the injuries complained about were principally to the appearance of the garments, rather than injuries to the fabrics. Each witness had some knowledge, gained from observation, which the jury had not and could not have, except by seeing the injured property, although the witnesses attempted to describe conditions as they saw them.

Counsel for appellant contends that, whatever experience these witnesses may have had in their respective lines, and however competent they may have been to state cost and quality and to describe the injury, it was not competent to state to the jury an opinion of the amount of the damage expressed in dollars. It is a rule of the law of evidence that upon the question of the existence or nonexistence of a fact in issue, whether a main fact or an evidentiary fact, the opinion of witnesses is not admissible. What a witness has seen or heard or felt, he knows, and it is for him to put before the jury the facts as he has perceived them by his senses, and for the jury to form an opinion concerning the fact in proof of which the evidence is offered. But there are exceptions, apparent or real, to the rule which excludes opinion evidence. A real exception is that class of opinion evidence which is called ‘ expert evidence.’ The apparent exceptions are not easily classified. They are sometimes treated as opinions admitted under exceptions to the rule, sometimes as matters of fact. The practical test for receiving or rejecting opinions of lay witnesses seems to be that, when the jury can be put into a position of equal vantage with the witness for drawing them — when by the mere words and gestures of the witness the data he has observed can be so represented that the jurors have those data as fully and exactly as the witness had them at the time he formed his opinion —he may not as a rule give an opinion or estimate. 3 Wigmore on Evidence, § 1924.

It was said by Justice Campbell, in Evans v. People, 12 Mich. 27, 35:

“ Experience has shown that many cases exist in which it is impossible, by any description, however graphic, to explain things so as to enable any one but the witness himself to see or comprehend them as they would have been seen or comprehended, could the jury have occupied his position of observation. In such cases the witness must give his own impressions and conclusions, or his narrative is useless, adding, however, as full explanations as the nature of the case will admit, so that his capacity and truthfulness may be tested as far as practicable.”

In this State, testimony concerning the amount of damage, largely matter of opinion, has been held properly received in cases not to be distinguished in principle from the one at bar. Continental Ins. Co. v. Horton, 28 Mich. 173; Printz v. People, 42 Mich. 144; Enright v. Hartsig, 46 Mich. 469.

In City of Grand Rapids v. Railroad Co., 58 Mich. 641, cited and relied upon by plaintiff in error, the evidence held to have been wrongly admitted was not opinion as to value of premises merely, but opinion or judgment as to compensation to be awarded for taking premises in condemnation proceedings.

The court carefully instructed the jury. He said in part:

“ Several witnesses have been permitted to testify as to their opinions as to value both before and after the alleged injuries to these articles. But I instruct you that you are to assess the plaintiff’s damages according to your own best judgment of the evidence and as to the injury done to them; and the evidence that has been thus received may be followed or not, as you find that it is true or not, under the evidence as to the amount of damages the plaintiff has actually sustained.
“ If you believe from the evidence in the case that the statements and estimates made by any witness are not warranted, you need not follow such statements. If you believe that they are warranted, you may, to the extent that you find they are warranted by the evidence. In other words, the whole question of the amount of damages sustained by the plaintiff is for you to determine, and you alone, from the evidence, and you are not to be governed or concluded by the opinions of any one else, unless you believe such opinions to be well founded' and based upon the evidence in the case.”

4. A subpoena, requiring in terms that plaintiff and his wife produce in court such of the damaged articles as were in their possession, was taken out on the part of defendant, and with a witness fee and an additional fee was served upon both the plaintiff and his wife. The record discloses that a considerable amount of the most expensive clothing could have been, without evident inconvenience, so produced, including plaintiff’s overcoat, and the opera cloak and two dresses belonging to his wife, the value of which it was claimed had been diminished $127.50 by stains, marks, and other injuries to the appearance of the garments received in the collision. None of the clothing was produced, and, upon the motion of defendant’s counsel to compel its production, counsel for plaintiff announced that it would not be produced. At different times during the trial the following, with other similar, language was used by the court:

“At present I think it is a matter in the discretion of the court to require it, and, being a discretionary matter, I do not feel like exercising it against the wish of the party to bring personal chattels into court for exhibition to the jury. * * * I do not think it is within the province of the court, as I have already said, to compel the production of such evidence. * * * If the party does not care to produce these articles, but chooses rather to have oral testimony as to their condition received, instead of the articles themselves, I think it is a matter that rests with the party and not with the court.”

And in the charge to the jury it was said:

“Something has been said about the refusal of the plaintiff to produce before you the articles alleged to have been injured or damaged. I think, perhaps, I ought to say something about that to you in these instructions. I have already said in your presence that to produce the articles or not produce them was a privilege belonging to the plaintiff, and to him alone, concerning which the court under the circumstances had no right to interfere.
Yet, if it should appear to you by the evidence that it would be practicable to produce those articles in court, the fact that there was a refusal to produce them is a matter you may consider as bearing upon the credibility of the witnesses.”

These rulings and this instruction are before us for review. We shall 'assume that the learned trial judge did not mean to be understood as denying the power of the court to order the production of the garments. Graves v. City of Battle Creek, 95 Mich. 266 (19 L. R. A. 641). Treating the rulings made as an exercise of judicial discretion, we are not impressed that the discretion was abused. The witnesses for defendant were permitted before the trial inspection of the principal articles of apparel claimed to have been injured, and we do not think it is clear that the inspection which the jury might have made, if the garments had been produced in court, wpuld have aided them.

Judgment is affirmed.

Moore, O. J., and Carpenter, Montgomery, and Hooker, JJ., concurred.


text:
    HUNT v. BRANCH CIRCUIT JUDGE.
    Exemptions — Beneficial Associations — Proceeds of Certificate-Alimony.
    Under section 7754, 2 Comp. Laws, creating an exemption in favor of the proceeds of benefit certificates, the circuit court in chancery has no jurisdiction, on a bill for divorce and alimony, to enjoin the payment of the proceeds of a certificate to defendant.
    Mandamus by Charles B. Hunt to compel George L., Yaple, circuit judge of Branch county, to dissolve an injunction and to vacate an order for maintenance pending divorce proceedings.
    Submitted'March 28, 1905.
    (Calendar No. 20,989.)
    Writ granted as to the injunction, and denied as to the order for maintenance.

      Kinney & Briggs and Palmer & Palmer, for relator.

      Lockerby & Cowell, for respondent.
   Hooker, J.

The relator was beneficiary in two certificates issued by mutual benefit societies of which his father was a member. Two days after the father’s death the relator’s wife filed a bill for divorce and alimony, making the societies parties thereto, and obtained a temporary injunction restraining the payment of the benefits to the relator. The relator was brought in by publication, as personal service could not be had upon him, for the reason that he was absent from this State and in the State of Georgia. He employed attorneys at Coldwater, and they filed an order that “ on motion of Kinney & Briggs and Palmer & Palmer, solicitors for said defendant, it is ordered that the appearance of said defendant be, and is hereby, entered specially, and for the purpose of filing a petition to dissolve the injunction heretofore issued in this cause,” and for general relief. This was accompanied by a petition, made by counsel upon relator’s behalf, for a dissolution of the injunction. Upon service of this petition counsel for the complainant filed a petition for an allowance for expenses and maintenance during the pendency of the suit, and caused notice of the hearing of the same to be served on relator’s counsel. The two applications were heard at the same time; the motion to dissolve the injunction being denied, and the other being granted and an allowance made. Relator now asks that the court be compelled by mandamus to (1) dissolve said injunction; (2) vacate the order allowing maintenance, etc.

The questions argued are (1) whether the fund was subject to the process of the court; (2) whether there was such a service as to support the action of the court in relation to alimony pendente lite.

The first contention rests upon the statute (2 Comp. Laws, § 7754), which provides:

(7754) Sec. 15. The money or other benefit, charity, relief or aid to be paid, provided or rendered by any association authorized to do business under this act, shall not be liable to attachment by trustee, garnishee, or other process, and shall not be seized, taken, appropriated or applied by any legal or'equitable process, or by operation of law, to pay any debt or liability of a certificate holder, or of any beneficiary named in a certificate, or of any person who may have any right thereunder.”

In other words, the claim is that this class of property is exempt from interference by a court of equity for this purpose and that such courts have no jurisdiction over it. We are reluctantly forced to the conclusion that this statute must be construed in accordance with the relator’s contention, and that the writ should issue as prayed, so far as the injunction is concerned.

Upon the other question we must decline to interfere at this stage. If the order for temporary alimony is void for want of jurisdiction, it cannot be enforced. If there is jurisdiction, we should be disinclined to interfere with the discretion of the circuit judge. Counsel cite authorities to support tbeir claim that, by appearing and moving to dissolve the injunction, the defendant appeared generally in the case and conferred jurisdiction, if the court did not already have it. See Coad v. Coad, 41 Wis. 26; 3 Cyc. p. 504, note 28. We find it unnecessary to pass upon the question, and this portion of the relief prayed for is denied.

A writ will issue in accordance with the above opinion, without costs to either party.

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