text:
    James M. Smith v. Horatio I. Lawrence and others.

      Specific perfoj'mance of contract: Reasonable time. Courts will only enforce the specific performance of contracts where, in view of all the circumstances of the case, it seems just and equitable to do so; and where a party has laid by, without performance on his part, until there has been such a change in the value of property sold as to render the contract unequal if made now, the court will refuse relief.
    Smith purchased pine lands of defendant by contract, in October, 1856, and paid the first instalment — the balance, of $3,800, to be paid in three annual instalments. He sold off $1,200 of the timber. The land becoming unsaleable, he failed to make the other payments. After considerable correspondence in regard to the payment, defendant wrote plaintiff, in 1862, that the contract had been long since forfeited. Up to this time, defendant had paid the taxes on the premises. In 1863, defendant sold the lands to third parties. Plaintiff thereupon notified them that he claimed the lands under his said contract, but took no steps to enforce his claim. The purchasers went upon the premises, and lumbered during one season. The land having increased largely in value,. Smith, in 1865, filed his bill against them and defendant for a specific performance of the contract. Held, that if plaintiff had desired to perfor^ his contract, he should have done so within a reasonable time.

      Heard May 21st.

      Decided May 25th.
    Appeal in Chancery from Muskegon Circuit.
    This was a bill to enforce the specific performance of a written contract for the sale of land.
    A cross bill was also filed by defendant, for the purpose of having- the contract cancelled and delivered up.
    A decree was rendered- in the court below dismissing the bill, and ordering the contract to be cancelled.
    The facts are stated in the opinion.
    A. T. Douglass and S. D. Miller, for complainant.
    This court has uniformly assumed discretionary power in enforcing the specific performance of contracts, and, while declaring that the exercise of the jurisdiction could not be demanded, as a matter of course,, or ex débito justitics, no uniform rules, no unbending prjbéiplés¿ nontechnical abstractions, have been laid down as governing the reasonable discretion of this court. — Ear. Ch. 124; 5 Mich. 123; 7 Id. 405; 8 Id. 463; 11 Id. 9; 12 Id. 193; 14 Id. 3 05; 15 Id. — ; 2 Story Eq. Jar. §§724, 742, 750, 769, 771, 776.
    The burden, therefore, rests upon the party seeking relief to present such superior equities that the court can not ■ remain passive, but must interfere for the protection of justice and fair dealing. — 13 Ves. 324; 1 Johns. Gh. 370; 6 Id. 222.
    From the evidence, it appears that complainant has acquiesced in the assertion of defendants’ title to the land, and that he ' has abandoned and rescinded the contract.
    He is also estopped by inaction, loss of time, and the intervention of the rights of third parties, from asserting any equitable rights, under the contract.'

      G. I. Waller and Geo. Gray, for defendants.
    1. Time is not made the essence of th% contract between these parties, and, in such case, mere delay or neglect on the part of the vendee to make the required payments, is no ground for denying specific performance, unless that delay or neglect has been very great, and without reasonable excuse. — 3 Lead. Gas. in Eq. pp. 7, 5, 8, 83, 84, 86, 87; 8 Mich. 46, 49, 472; 11 Id. 9; 14 Peters, 175.
    And in this case there has been no great increase in the value of the property, that would make it inequitable for the complainant to enforce specific performance. — 2 Lead. Gas. in Eq. 80; 6 Wheat. 528; 11 Paige, 354.
    Nor is there any evidence that the complainant at any time intended to abandon the contract, and any presumption of abandonment that would have arisen from the length of time, is repelled by all the circumstances of the case; including the possession of Smith, through S. Lawrence, as late as 1861, and until H. I. Lawrence forbid further cutting or removal of timber. — 3 Lead. Gas. in Eq. 87.

      2.- .But when, as in .this case, .there had been . an acquiescence on .the part of the .vendor in the delay .or neglect of the vendee .to make .the payments, j;he yen dor is not at liberty to declare the contract forfeited, yrithout clear notice to the vendee, .and .without giving him .a .reasonable time within iwhich .he may perform and make .payment.— 3 lead. Gas. in Pq. pp. 66, ,86, .87; 4 Mich. 573; 11' fcl. 19; 4 Johns. Gh. .560; .8 Paige ,426, a?,i$ n^ote; 1 Hoff. 137; 5 Pich. Pq. 570; 6 Id. 324; 2 Ohio 8t. 33.2 5 2: Olarh’s la. 126;' 26 III. 611; 2 Peav. 183.; 6 Jd. p.26-
    At the very time when the defendant, H. I. Lawrence, made this contract of sale to his co-defendants, he ;was entirely at liberty to have enforced the specific performance of the contract in question with Spiith, oy to hav.e sued him on his covenants for his purchase money; and these rights to specific performance are mutual. — 3 Jones’ Pq. 84.
   Cooley J.

The specific performance of contracts must always rest in the sound discretion of the court; to be decreed or not as shall seem just and equitable under the peculiar circumstances of each case. It is frequently ordered in favor of a party who has been for a considerable period in default, if he has never abandoned the contract, and the ofher party has suffered nothing from the delay for which he can not be compensated in the decree. If, however, succeeding the default, there has been a considerable change in the value of the property, this may be reason sufficient for denying the specific relief, inasmuch as, the contract would thereby become an unequal one, and to enforce it would be to eyn courage delays by enabling the party to take advantage of changes in his favor, though he, might have delayed performance' intentionally, and riot meaning to perform unless, favorable changes should occur.

The contract in question in this case was made Octo- . ber 1, 1856. It is apparent from the evidence that it was entered into by Smith as a matter of speculation, and in the hope of making money by the sale of the pine timber. Before the first annual payment fell due, the depression in business circles was so great as to render that which before seemed likely to result in profit, a losing bargain. That payment was not made; and it is highly probable that there was no time from thence until the sale to Lawrence and Backus, nearly six years later, when Smith would not gladly have been relieved of his contract if practicable without actual loss.

Horatio I. Lawrence, however, did not press for payment, and the correspondence between the parties shows clearly that he was willing to receive payment and to recognize the contract as valid up to the 25th of February, 1862. At that time he writes Smith that the contract had long been forfeited as far as the latter was concerned, and that he, Horatio I. Lawrence, was only hesitating as to what he would do on his part.

To know what was meant by this last clause of the letter, it may be necessary to look a little into the prior correspondence between the parties. It appears that Smith had been making propositions looking to a surrender of the contract on being repaid what he had expended under it, and that he had also proposed to take a part of the land only on payment of a sum named. Lawrence had not accepted either of these offers, but had proposed to Smith that the latter surrender the contract cancelled, without any re-payment. This, Smith had declined for the time, assigning as a reason that he needed it for the purposes of a suit which he had brought against Sidney Lawrence, for the price of pine timber sold him from "the .lands in, 1851", but saying that when that suit was disposed of he trusted the business could be settled between them. In another letter, apparently referring to the same proposition by Horatio I. Lawrence, 'he says that when he can make the collections due from Sidney Lawrence he shall be willing to accede to a former proposition of Horatio I. Lawrence if still made.

Without looking at the case as it stands upon the evidence aside from this correspondence — which is certainly the most favorable view to take for the complainant — we think it apparent that for some time preceding February 25, 1862, Smith had not contemplated performing the contract, but had relied upon being able to make some more satisfactory and advantageous arrangement for himself when the suit with Sidney Lawrence was disposed of. And although it is probable that nothing had occurred up to this time which would preclude a specific performance on his behalf if he had sought it, yet the letter from Horatio I. Lawrence of that date, apjn-ising Smith that he considered the contract forfeited, was a sufficient notification to the latter, under the circumstances, that if he desired to perform, he must apply in a reasonable time thereafter for the purpose.

The statement by Lawrence that he was hesitating as to what he should do on his part is very far from an intimation that he concurred in any. further extension of time, and may have had reference either to Smith’s proposition to purchase a portion of the land, or to proceedings against him for declining to cancel the contract, or to sales to others. Whatever it may have meant, it certainly is no such clear assent to the extension of the contract as we think should be shown where a party claims an extension after the long delay which had here intervened, and after being fairly notified that the vendor considered the contract forfeited.

Smith, however, took no steps towards performance; and in June, 1868, the lands, so far as they were of value, were sold to the defendants, Sidney Lawrence and Backus. Hp to that time the taxes had for the most part been paid by Horatio I. Lawrence, and although Smith claims to have paid a small amount to apply on the contract besides the down payment of $1,000, yet the proof on the subject is not very clear, and the amount as claimed was of small importance. Although after the sale to Sidney Lawrence and Backus, Smith informed them that he claimed rights under the contract of sale to himself, he still took no steps to enforce that contract, and it was only after they had taken off timber for one season that he commenced the present suit. In the meantime it is apparent that a great change had taken place in the value of the land. Horatio I. Lawrence had sold the second time at a considerable deduction from the first contract price, but in January, 1865, when the present suit was commenced, pine timber on the stump is shown to have been worth twice as much as it was sold for by Smith the year after he made his contract. In this great rise in the value of the timber is the secret, so far as we can discover it from this record, of Smith’s willingness and anxiety to have this contract performed in his favor. He waited until the circumstances were all changed; until the land had been sold; until his losing bargain had become a speculation, and nearly three years after being notified that the contract was considered forfeited, before filing the present bill. At no time had he ever tendered performance, though he had said on one occasion that he was ready to perform, but without adducing any evidence of readiness. The payments which he had made, conceding the most that could be claimed on the evidence, were less than the interest over due on the contract. We are unable to perceive any circumstance upon which a court of equity could seize as warranting specific performance in his favor, and we think the Circuit Court was correct in dismissing his bill and ordering the contract to be cancelled.

Decree affirmed with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Campbell J.

license: Public Domain

text:
    Francis W. Fifield v. Marvin J. Close.

      Stamp Act: Process. So much of the Internal Revenue Law as requires process in state courts to he stamped, as a condition of the validity of legal proceedings, is unconstitutional and void.

      Heard April 27th.

      Decided May 25th.
    Error to Oakland Circuit.
    ' This was an action of trespass,” commenced before a justice of the peace. There was no appearance on the return day, and judgment was rendered for plaintiff for one hundred dollars damages and costs.
    The case was removed by certiorari to the Circuit Court, on the ground that the summons issued by the j justice of the peace was void, because no United States! revenue stamp was attached thereto.
    The Circuit Court reversed the judgment of the said justice of the peace.

      M. IS. Grofoot, for plaintiff in error./
    The act of Congress taxing the process of state courts, is void. — 2 Pet. 449, 467; 22 .Pncl. 276; Paw. Meg. Party, 1865, p. 157; 19 Wis. 369; 5 Mich. 368; '26 Howard's Mr. 119; 29 Id. 253, 357; 19 Abb. Pr. 121; 30 Id. 378.

      O. F. Wisner, for defendant in error, ^

    Cited 19 Wis. 380.
   Campbell J.

There is but one question raised in this ease, and that is, whether the stamp tax on legal process in state courts is valid. The power of 'Congress to impose such a charge, as a condition upon litigation, is denied by the plaintiff in error, as inconsistent with the control which the Constitution of the United States guarantees- to the state authorities over all such matters as have been left by that instrument under local regulation. The question is one of much importance, inasmuch as it involves fundamental principles bearing upon the nature and attributes of both local and general governments.

In order to comprehend the full meaning of the inquiry, it will be well to consider how far this power of taxation may be carried, if it exists, and what consequences it will draw after it. For, while consequences can not alter the law, they may be of the utmost value in aiding us to discover what the law is, in reference to such constitutional questions as refer to the nature of our institutions, and the distribution of the various functions of government.

If this power exists, it is derivable from the specific power vested in Congress “To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.” — Art. 1, §8. It is very well settled that such a tax as is involved in this cause is not a direct tax, within the sense of the constitution, and, therefore, need not be distributed by the rule of population. — Hylton v. United States, 3 Dall. 171. The constitution imposes no limit on , any but* direct taxes, beyond the requirement that they “shall be uniform throughout the United States.” — Art. 1, §8. There is, • therefore, no limit upon the power of Congress (if it can levy these taxes at all), to select any objects within the taxing powei-, and draw from them any amount of uniform contributions which it may see fit to require. The power to tax any specific thing is unlimited, or it is entirely wanting. There are no bounds within which the discretionary action must be confined. The legislature levying the tax is the sole and ultimate judge of the expediency or necessity of requiring it, and of the-extent to which it shall be charged upon any class of taxable articles. And where a legislature acts within the line of its constitutional powers,--the motives-of its action-can never be judicially reviewed, nor can courts in any way determine the propriety of its enactments. Its expressed will disposes of all questions of reason or policy.

Having this unqualified discretionary power to tax to any extent whatever is taxable, that power may easily be extended far enough to destroy anything on which burdens may be imposed, by making those burdens so heavy as to become prohibitory. It is within the experience of most countries that duties may become prohibitory, and where taxes are chargeable specifically, so that particular objects may be taxed at pleasure, the same result may easily be reached by specific impositions upon domestic interests. The argument that such prohibitory action is improbable, has no force whatever in determining the existence or nonexistence of the power. There is no legitimate power possessed by any legislature which it may not lawfully carry to an extreme, where extreme action is deemed expedient by the majority of the members. And where a power of destruction has been conferred, it is always possible that it may be exercised, although it may be very improbable. Where a constitution does not limit the action of such an assembly, it must be assumed that the people do not regard a right or institution as important enough to be removed from the control of their representatives. And when those representatives make up their minds that policy requires the abrogation of any system over which they have complete authority, they can not be held legally incompetent to abolish it. The principle that an unrestrained right to tax involves in law a right to destroy by faxation, has been recognized from the beginning by our courts. It is the foundation of all of those decisions which have been made by the Supreme Court of the United States, asserting the immunity from state interference of the United States government, and its various offices and instrumentalities. In some of the tax cases, the danger' of destruction, to the agencies of the government was more than theoi’etical, and the design of the obnoxious legislation was to defeat the measures which Congress had determined on for the public interest. And, ■therefore, in holding that the general government, and its various agencies and machinery, are exempt from state taxation, the Supreme Court expressly rested their decisions upon the assumption that the power to tax involves the power to control and to destroy. — McCulloch v. Maryland, 4 Wheat. 316; Osborn v. Bank of the United States, 9 Id. 133; Weston v. City Council of Charleston, 2 Peters, 449 ; People of New York v. Commissioners of Taxes, 2 Black, 620; Bank Tax Case, 2 Wallace, 200; Van Allen v. The Assessors, 3 Id. 573; Dobbins v. Commissioners of Erie County, 16 Pet. 435. A similar principle has led to the protection from State interference of all privileges lawfully granted by the United States.— Hays v. Pacific Mail Steamship Company, 17 How. 596; Gibbons v. Ogden, 9 Wheat. 1; Passenger Cases, 7 How. 283; Sinnott v. Davenport, 22 Id. 227.

If Congress has the right to impose a duty or tax upon suits in courts of the states, it follows, as an inevitable conclusion, that such restrictions may be laid upon these proceedings as to put an end to the entire action of those courts, and, for all practical purposes, to produce the same results as if they were abolished. And the question we are called upon to decide is, therefore, whether Congress has power to put an end to the exercise of the judicial power of the states.

Presented in this form, the inquiry involves little short of absurdity. It is one of the cardinal principles of political science that no government can exist without a judicial' system. It is the only peaceable means of enforcing private rights, and of protecting the community or the citizen from violence and fraud. ^A^ta-t^without courts to enforce ifs own laws, is an imjossjbiljty. And if Congress can destroy or control the State judiciary, it can utterly abrogate the state itself.

No one would contend that the system of government established by the constitution of the United States can pos- ; sibly permit of any diminution by the general government' of any of the functions which are left under state control. The judicial powers, like the other powers of the Union, are enumerated. They do not cover any considerable number of those subjects which concern the ordinary interests of the people. They punish no ordinary local Crimes against the peace and good order of society, committed within the States, and they can entertain jurisdiction of no ordinary litigation between members of the same community. Congress can not enable the courts of the United States to entertain any except what — as compared with ordinary interests— must be regarded as exceptional cases. The great mass of common law rights and remedies, asserted by one citizen against his neighbor, are beyond their reach. Our whole system is based upon the principle that local affairs must be administered by state authority, unless where peculiar circumstances have led to the establishment of definite exceptions, resting on special reasons of public policy. The same supreme power which established the departments of the general government, determined that the local governments should also exist for their own purposes, and made it impossible to protect the people in their common interests without them. Each of these several agencies is confined to its own sphere, and all are strictly subordinate to the constitution which limits them, and indejjendent of ocher agencies, except as thereby made dependent. There is nothing in the constitution which can be made to admit of any interference by Congress^with the, secure existence of any State authority within its lawful bounds. And any such interference by the indirect ¡neaps of taxation, is quite as much beyond the power of the national legislature, as if the interference were direct and extreme.

We are not, therefore, at liberty to give weight either to the moderate amount of the tax, or to the solicitude manifested by Congre'ss to exempt those cases more immediately concerning the state as a community. We are bound, of course, not to, decide against the validity of any law, unless we are forced into a clear conviction of its conflicting with the constitution. But the uniform decisions of the United States Supreme Court against the validity of any taxes which would destroy those immunities which are secured by the constitution, seem to leave no room for doubt concerning the case before us. The courts of Indiana and Wisconsin have arrived at the same result. — Warren v. Paul, 22 Ind. 276; Jones v. Keep, 19 Wis. 369. The interference is not remote, but direct, and prevents any action whatever by the courts of justice in private suits, until the tax is paid. It makes this payment a condition of jurisdiction.

The stamp could not lawfully be required, and the decision of the court below, dismissing the case, and annulling the judgment for want of it, was erroneous, and should be reversed, with costs.

Christianity J. and Cooley J. concurred.

Martin Ch, J, concurred in the result.


author: Per Curiam.

text:
    Catharine Hawkins v. William H. Clermont and another.

      Foreclosure bill: Mortgage conditioned to board and support: When general demwrer lies. Where a mortgage was given to an old person to secure the payment of a debt by boarding and supporting her for five years, held, that the mortgagee was absolutely entitled to the support for the entire period, and that the mortgagor was bound to furnish it — Evans v. Notris, 6 Mich. 369 — and was not at liberty to furnish the support, or pay the money, at his option.
    The bill in this case contained an averment that the mortgage sought to be foreclosed had been taken from the register’s office before recording, and that defendant Clermont threatened to sell the premises; and also a prayer for an injunction. Meld, further, that even though the mortgage were not due, the bill should not have been dismissed, as complainant was entitled to an injunction as prayed, to prevent such conveyance or incumbrance of the premises as might deprive her of all remedy. — Woodward v. Clark, 15 Mich. 111.
    A general demurrer to a bill will not lie, if any relief whatever is warranted by the bill.

      Heard and decided July 9th.

    Appeal in Chancery, from Kalamazoo Circuit.
    This was a bill to foreclose a mortgage. It alleged that complainant being seized of certain real estate, and being old and infirm, entered into an agreement with her son-in-law, William H. Clermont, by which in consideration of her conveying to him said real estate that he would execute back to her a mortgage upon said premises — conditioned to pay to her the sum of $500 in five,years from the date thereof — but to be paid by furnishing said complainant with a good and sufficient home and support in all things during said five years.
    That said deed and mortgage were duly executed and delivered, but that said mortgage - after being left at the recorder’s office was lost and never recorded. That defendant had failed and refused to perform the conditions of said mortgage, and that he had threatened to sell the premises so conveyed by complainant. '
    The bill asked for a foreclosure of the mortgage, and that defendant be enjoined from disposing of or encumbering the premises, and that he be decreed to re-execute and deliver to complainant a mortgage in lieu of the one alleged to have been lost.
    Defendants filed a general demurrer, which was sustained by the Circuit Court, and the bill was dismissed without prejudice.
    From this decree an appe.al was taken to this court.

      May and JBuoJe, in support of the. demurrer.
    The demurrer must be sustained, for the bill of complaint does not show anything due under the mortgage.
    The undertaking of the defendants which the bill sets up was “to pay, or cause to be paid, five hundred dollars in five years from the date thereof, (July 23d, 1867,) to be paid in furnishing your oratrix, during the said five years, a good and sufficient home and support.”
    The mode of payment did not change the amount of the indebtedness nor the time when it was to be- paid. In view of any default or contingency, the parties fixed the time absolutely when the five hundred dollars should be due.
    Under this agreement the defendants had their election whether they would furnish the “home and support,” or pay the money.— 2 Pars, on Cont. 492; 3 Conn. 58, and oases cited; 1 JBlachf. 342; 5 Wend. 393.

      2: But if .we consider the gist of the promise to be the “furnishing a home and support,” and the sum named not an existing debt, but liquidated damages or a penalty fixed by the parties, we still must arrive at the same conclusion,. that nothing is yet due on the mortgage; for the parties, in that case, settled not only the amount of the damages or penalty, but the time of payment as well.
    In no view can the mortgage be foreclosed till the time agreed for the payment of the five hundred dollars — July 23d, 1867.
    If this was a promise to pay money, either directly or alternately, the demurrer must be sustained. That it was so understood by the parties is apparent from the fact that it was made to run to the complainant, - “her heirs, executors, administrators and assigns.”

      A. Brown, for complainant, was stopped by the court.
   Per Curiam.

There are two objections to the demurrer. A general demurrer will not lie, if any relief whatever is warranted by the bill. Even if this bill could not be sustained as a foreclosure bill, it nevertheless makes out a case for an injunction to restrain a threatened transfer in fraud of the unrecorded mortgage, and, therefore, can not be demurred to generally for want of equity.

But we think it a good foreclosure bill. The mortgage was given to secure the payment of the complainant’s debt, by boarding and supporting her during five years. This boarding and care are the very method of payment contemplated, and the performance of this condition is distinctly secured. Complainant had a perfect right to require it, and any failure would be a 'breach which would justify proceedings under the mortgage. Defendant had no option in the matter, and could not refuse to support complainant in the manner provided for. — Phans v. Norris, 6 Midi. 369.

The decree dismissing the bill must be reversed with .costs of both courts, the demurrer must be overruled, and defendants must answer the bill within the time fixed by the rules.


text:
    Elliott E. Covell v. Charles Mosely and others.

      Chancery pi'actice: When appeal will be dismissed: Appeal bond. When the return to an appeal in chancery is filed, before the motion to dismiss is called on, it will not be dismissed, in the absence of gross negligence.
    The claim of appeal forms no necessary part of an appeal. The filing of the bond, properly approved, is the only condition required by law; but it is valid only for those parties in whose behalf it purports to have been filed.

      When tw bond filed. Amendment. A party in whose behalf no bond has been filed can not be allowed to file one after the time for appeal has expired. The statute allowing bonds to be amended does not reach the case of such an omission.

      Costs on motion to dismiss, when allowed. On a motion to dismiss, where it appears that the party in default, on being notified, offered at once to do all that justice required, no costs will be awarded against them.

      Heard and decided July 9th.

    Appeal in Chancery from Kent Circuit.
    Motion to dismiss for want of prosecution.
    An appeal was taken by a portion of the defendants, and in giving directions to the clerk for making a return, he was, by mistake, ordered only to return so much of the record as embraced the matters in which those defendants were concerned.
    TTpon the filing of this imperfect return, notice of a motion to dismiss was made, and the parties at once, on receiving such notice, directed the clerk to make a further return, and offered to the appellee to pay the costs of the motion.
    This further return was made before the motion was reached.
    A claim of appeal was filed in the name of three defendants, but an appeal bond was filed only on behalf of two of them. . . ■ - ■

      The motion was based on the imperfection of the original return, and on the variancé between the claim of appeal and the appeal bond.
    IJpon the hearing of the motion, the defendant, who had failed • to file any appeal bond, offered to file a new or amended bond, under the statute referred to in Beebe v. Young, 13 Mich. 221.

      A. Pond, for appellant.

      A. M Gowles, for appellee.
   Per Curiam.

It has always been held by this court that unless in case of gross negligence, no appeal will be dismissed where the return is filed before the motion to dismiss is called on.

In this case, the parties being apprised of the irregularity of the return, at once took such steps as were in their power to have the mistake rectified.

They are not, therefore, in fault, and the appeal can not be dismissed on that ground.

The claim of appeal forms no necessary part of an appeal, and the filing of a bond, properly approved, is the only condition required by law. This bond is a valid bond of appeal for those parties in whose behalf it purports to have been filed, and the fact that all the parties whose names appear in the claim for appeal have not joined in it, can not invalidate it as to those parties who did not join. As to them, therefore, the appeal is valid, and the motion to dismiss must be denied, and inasmuch as upon being notified they at once offered to do all that justice required, no costs will be awarded against them.

Lena Young, one of the defendants, not having joined in the bond, and the bond not appearing to have been made in her behalf, she can not be regarded as having aj>pealed. There being no bond in her behalf, there is nothing to amend; and having lost her appeal by lapse oí time, it is out of the power of this court to relieve her.

Motion on her behalf denied.


text:
    Louis M. Smit v. The People.

      Where action of Circuit Gourt Commissioner is affirmed, Supreme Court may issue wairant. Where this court affirmed the action of a Circuit Court Commissioner, under the fraudulent debtor’s act, held, that the power to hear and dispose of the case finally, involved the power to order such action as would make the judgment effective. Warrant ordered to issue.

      Heard and decided July 9th.

    Motion for warrant of commitment.
    In this case the Supreme Court at its last term affirmed the action of a Circuit Court Commissioner holding' the defendant liable under the fraudulent debtor’s act for having disposed of his property with intent to defraud his creditors. (For the facts see, ante, Louis Smit v. The People, p. 497.)
    No warrant of commitment having been issued by the commissioner, an application was made to this court for an order of commitment, to carry out its previous judgment.

      A. Pond, in support of the motion,
    Claimed this court has power to issue process necessary to carry out its judgments, and inasmuch as no other relief can be granted in this case the order of commitment must be made by .this court.

      L>.. Or MolUpplc/i^ defendant,
    . ■ Insisted this Cc'our.t had no jurisdiction to grant such . an ordervÍVclai£oin^/. that the statute being one in relation to special proceedings must be strictly construed, and that it provided for no warrant in an order of commitment except such as mig-ht.be issued by the commissioner who adjudicated on the fraud.
   Per Curiam.

The power to hear and dispose finally of these cases necessarily involves the power to order such action as will make the judgment of this court effective.

Let a warrant issue as prayed for.


text:
    Uri Raymond v. Samuel Hinckson and another.

      Notice of 'motion: Computation of time: Usual route of travel. The usual route of travel must govern in the computation of the time required, to he given hy rule in the service of notices.

      Heard and decided July 9th.

    Motion for re-hearing.

      P. P. Pratt, for defendants.-
    Objected that the notice of the hearing of this motion was not for a sufficient length of time under rule 26; Hillsdale, where it was served being over one hundred miles from Lansing by the usual route of travel, which was by railroad.

      W. T. Mitchell, for plaintiff:
    Claimed that the actual distance must determine, and that there being regular svagon roads between the points, they must regulate the distance. , ,,
   The court held that the usual route',.0‘f travel must govern, and that being over one hundrgd^jfules by,. rgilfoUd, the plaintiff must comply with the rule;-.^


text:
    The People ex rel. Taylor v. E. D. Tripp.

      Replevin: Judgment by discontinuance: Assessment of defendants' damages. When judgment of discontinuance, in replevin, Is rendered by a justice against plaintiff, if defendant -waive a return of the property, he is entitled to have his damages assessed.

      Heard and decided July 9th.

    Motion for mandamus.
    Taylor was defendant in a replevin suit before Tripp, who was a justice of the peace in Clinton County. The writ of replevin was not served a sufficient time before the return day, and the justice declined to proceed.
    The defendant thereupon waived a return' of the replevined property, and asked the justice to proceed to assess its value, which he declined to do.

      JR. Striclcland, for the motion.

      JBJ. Walbridge, contra.
   Per Curiam.

Where a plaintiff in replevin, before a justice of the peace, has judgment of discontinuance rendered against him by the justice, it is the duty of the justice to proceed and assess damages in favor of defendant, when he waives a return; and if the justice refuses to do this, a writ of mandamus will he allowed, to compel him to do so.

Mandamus issued.


text:
    The People ex rel. Mead v. Commissioners of Highways.

      Costs where plaintiff in motion maíces default The party appearing to resist a motion where the moving party makes default, is entitled to the costs of the motion.

      Heard and decided July 10th.


text:
    George Sheldon v. Josiah L. Hawes.

      Alteration, in written instrument t When to he explained. Where there are eircumcumstances and appearances rendering an alteration in a written document suspicious, the party relying upon the document, as altered, is hound to explain it before he can recover.

      Bandwriting: Inspection by court. Where there was evidence introduced to show in whose handwriting a certain interlineation was made, and there was no evidence showing, or tending to show it to be in the handwriting of the defendant, it was held incompetent for the court, upon its own unaided inspection, and' contrary to the testimony, to find it to have been written by him.

      Re - hearing: When should be allowed. Where the only positive testimony in his own behalf came from the complainant, and after the hearing, a re-hearing was asked upon a showing of newly discovered evidence that complainant had made statements contradicting his evidence in the material points, in such a way as to be decisive of the case, the refusal of such re-hearing was held erroneous. Complainants’ denial of the truth of the newly discovered evidence shouldlnot be regarded.upon such an application.

      Beard July 8th and 9th.

      Decided July 11th.
    Appeal in Chancery from Kalamazoo Circuit.
    This was a bill to foreclose a mortgage given to secure the payment of a note.
    The defense was a material alteration in the note.
    A decree was rendered in favor of complainant, and a petition for re-hearing was filed, but denied.
    The facts are stated in the opinion.
    Balch, Smiley & Balch, for defendant.
    1. The burden of proof rests upon the party who alleges the alteration of a note as a defense. There seems to be a conflict of authority upon the subject, but the best considered cases hold the burden to be upon the defendant. The following cases are cited to sustain this view.— 2 JMJe. 147; 18 Id. 886; 7 Shepley {JMJe.) 337; 1 JHJalst. 215; 6 Wheat. 481; 20 Vi. 205 ; 5 llar. <& I 36; 11 Conn. 531; 7 Jones' Law {JN~. C.) 455; 12 Rich. Law (S.. C.) 387; 7 Clarice {Iowa) 143; 2 Johns. Cas. 198; 1 Cowen and HilVs

      Notes, Phil. Ho. 606 (4th Am,. Hd.); 16 Sergt. db Pcmle, 47; Pest on Presump. 58.
    The distinction sometimes made as to negotiable paper, can not be made here, as this note was not made negotiable.
    The reason of this rule seems to be that to adopt a different rule would be to presume the plaintiff guilty of a fraud or crime, which would violate one of the strongest presumptions of the law; the presumption of innocence. It appears by the evidence that the complainant was complained against and discharged for making the alleged alteration. Would this court presume him guilty of a crime of which he has been acquitted upon an examination in a court of justice?
    The presumption of fact is naturally in favor of the fairness and innocence of the alteration. — 1 Waifs Paw and Practice, 913; 20 Vt. 205.
    Especially, and with great force, ought this principle' to prevail in a new country like this, or as this was when these papers were executed, and when the papers are drawn by the parties themselves; but even if the onus, probandi rests upon the complainant, he is only bound to prove the signature of the defendant, which establishes prima facie that the defendant signed it as it appears, and shifts the burden upon him to show that he did not. — 2 Posw. 352.

      J. P. Hawes, in person.
    1. Where an alteration is material and apparently suspicious, it is incumbent on the complainant to explain it.— 6 Gush. 34, 22; Hug. P. &, Hq. 208; 7 Par. 8. G. 564'; 8 Id. 514; 9 Gow. 125; 3 Ohio, 445; 9 Par. 186; 19 Penn. 178; 1 Qreenl. Hv. 564-5; 2 Id. 160; 2 Pars, on Gon. 716; 8 Ad. & E. 215; 11 N. H. 395.
    2.' The alteration in such a case is presumed to. have been made after signing, and by the holder or person to be benefitted by it. — 35 N. H. 351; 9 8. db M 375; 9
      Wend. 5551 2 Rich. Eq. 49; 11 J E 895; 13 Id. 385 ; 2 Ears, on Con. 721; Chit, on Bills, 624.
    2. It is not competent for the court or jury to institute a comparison even between writings properly in evidence, except in corroboration of other testimony. The comparison made by the Circuit Judge was unauthorized, there being no evidence or pretense that defendant wrote the alteration, but proof that he did not write it. — 5 A. é> E. 514, 703; 4 Carr. <& B. 267; 9 Cow. 100, 112;- 13 Johns. 238, 97; 2 Phil. Ev. G. & II. N. 611, note 483.
    3. The decision of the Circuit Judge being founded entirely on inspection and comparison of writings, uncorroborated by any evidence, was erroneous, and a re - hearing should therefore have been granted. The petition for such re-hearing was regular, and stated reasons which would constitute a good cause for a new trial at common law.— Dan. Ch. Pr. 1232, 1615, note; 2 Wood & Minot, 168; 4 Wend. 639; 2 Johns. Ch. 488; 14 Id. 481,.
    By the English practice, one re-hearing was a matter of course, when the application was sanctioned by two counsel. — Dan. Ch. Pr. 1620, 1624; 1 Bar. Ch. Pr. 356. Under our practice, after decree a re-hearing rests in the sound discretion of the court, and is not a matter of course. — Rule 81, Dan. Ch. Pr. 1625; 1 EopJc. 112; 1 Story C. C. 198; 4 Id. 173.
    The grounds upon which a party may appeal from a decree or order, or apply to have it re-heard, are as numerous and vai-ious as the cases themselves. Whenever a question of law or fact is determined, the decisions may be the subject of re-hearing or appeal by any party who conceives himself aggrieved. — 3 Dan. Ch. Pr. 1606. Those grounds in this case were,

      a. The decision of the Circuit Judge, and order thereon, was contrary to law and evidence.
    5. The newly discovered evidence was material and pertinent to the issue, and such as to deny a party the benefit of, especially in view of tbe opinion filed by the Circuit Judge, would be an act of the grossest injustice, and the denial of a sacred right, which the defendant had not waived by any act, or forfeited by any latches. — 2 TVend. 225; 4 Id. 579; 1 Johns. Gh. 494, 502.
   Campbell J.

The bill in this case was filed to foreclose a mortgage, given to secure a note made by defendant to plaintiff. The defense rested upon an alleged alteration of the note, whereby it was made payable with ten per cent, interest. The note was originally drawn and signed without any such clause, and the question was whether the words in the margin, “at ten pr. e£.,” were inserted before the delivery, or- were added after the papers went into complainant’s possession, without defendant’s assent.

The only positive testimony attempting to fix the time and circumstances of tbe alteration was given by the complainant, who swore the words were inserted after the signing, and before the delivery, by one E. B. Bassett, the subscribing witness, with the assent of defendant. This the defendant denies. Bassett can not speak positively to the handwriting, and has no recollection whatever of the facts, but thinks it probable that he wrote the words. The remaining testimony was all the opinion of witnesses upon the handwriting and other indications appearing on the face of the paper.

The words alleged to have been interpolated are in a different ink from the rest of the note, and are not written in the manner usually to be expected in such papers. The alteration being so peculiar in appearance, and being favorable to the complainant, by adding three per cent, to the interest, creates sufficient ground of doubt to require some explanation. And unless upon a review of the whole testimony it produces a belief in the genuineness of the instrument as altered, of course complainant could not claim to recover upon it.

The court below sustained the bill, but, as set forth in a petition for re-hearing, upon the hypothesis that defendant himself made the alteration. As there was no evidence to that effect, and as there was positive evidence to the contrary, we think it was not competent to act upon any such hypothesis from a mere inspection and comparison of documents. Shortly after the decision was rendered and a computation ordered, and before the case was ready for decree, defendant presented a petition to open the case for a re-hearing on newly discovered evidence, of which defendant was first informed a few days after the decision ■was rendered. This testimony was set forth in the affidavit of one John E. Babbitt, who states in substance that complainant was in January, 1860, examined before deponent as a magistrate upon the charge of forging the alteration in the1 note in controversy, upon which Bassett swore that from the fact of his being a subscribing witness he thought he might have written the words inserted; that the decision ' being postponed until the next day, complainant called in early in the morning and was informed he would be discharged, and the entry was made upon the docket; that he still remained in the office, appearing troubled and as if he wanted to say something, whereupon Babbitt,' as they were alone, said to him, “mow this matter is ended, and I have discharged you, I should like to have you tell me all about how this alteration came in the note.” Sheldon then went on to state that Bassett was mistaken about it, and did not write the words and figures on the note. He further, in answer to questions, said that Hawes, the defendant, did not write it, but refused to say who did, although giving Babbitt to understand he knew all about it.

The court refused to open the case on this showing. We think this was wrong, and that the evidence should have been taken. Sheldon’s denial of the truth of Babbitt’s affidavit, is - not entitled to any weight on such an application. This testimony was offered for the very purpose of disproving his previous statements as a witness, and to allow a witness to exclude contradictory testimony by denying its truth, would lead to very absurd results. The claim that defendant had been guilty of laches in not obtaining it before, is met by conclusive proof that Babbitt never disclosed it until after he heard of the decision, and it can not be presumed that defendant could have surmised what had been kept secret from every one. And although he previously obtained leave to examine this witness, yet that can have no bearing upon this new discovery. Nor is the testimony merely cumulative in any proper sense of the term. It is the only positive testimony which has come to light in the whole record, except that of the interested parties, and, if true, it would entirely overthrow the case sworn to by the complainant. We think justice required that testimony of this kind should be secured, and that the cause should have been opened for that purpose.

We do not think the case, as presented by the other testimony in the cause, is by any means satisfactorily made out, in such a way that we should feel at all confident that we could fully see through the mystery in which it is involved. We therefore prefer reversing the decree on the ground already mentioned, and opening the case to further light, instead of deciding it upon the imperfect proofs now in.

The decree must be reversed, with costs, and the order of reference must be vacated, and. the proofs must be opened to allow the examination, of Mr. Babbitt, and the case must be remitted to the Circuit Court for further proceedings. Proofs to be taken upon the usual notice, and to be closed within forty days from the filing of remittitur, unless otherwise ordered by the Circuit Court.

Cooley and Chbistiancy JJ. concurred.

Martin Ch. J. did not sit in this case.


author: Christiancy J.

text:
    The Western Union Telegraph Co. v. John H. Carew.

      Telegraph Companies, liability of, over their own and other lines: Repeated Messages: Printed Blanks: Special Contract: Agency. Telegraph Companies, in the absence of any provision of the statute, are not common carriers, and their obligations and liabilities are not to be measured by the same rules, but must be fixed by considerations growing out of the nature of the business in which they are engaged. They do not become insurers against errors in the transmission of messages, except so far as by their rules and regulations, or by contract, they choose to assume that position.
    When a person writes a message under a printed notice, requesting the company to send such message according to the conditions of such notice, held that the printed blank was a general proposition to all persons of the terms and conditions upon which messages would be sent, and that by writing said message and delivering it to the Company, the party must be held as accepting the proposition, and that such act becomes a contract upon those terms and conditions.
    Where a telegraph company established regulations to the effect that it would not be responsible for errors or delay in the transmission of unrepeated messages and for which an increased charge would be made, and further, that it would assume no liability for any error or neglect committed by any other company over whose lines a message might be sent in the course of its destination, held, that such regulations were reasonable and binding on those dealing with the company.
    Error to Wayne Circuit.
    This was an action of assumpsit, brought by defendant in error to recover damages for the failure on the part of plaintiff in error to transmit a certain telegraph message from Detroit to Baltimore. The charges were, paid to Baltimore, though plaintiff in error’s lines only extended to Philadelphia. The message was correctly sent to Philadelphia, and delivered there to the agent of the Baltimore line. The error occurred between this point and Baltimore.
    The message was written upon one of the printed blanks of the company, at Detroit, containing certain conditions, but which defendant in error had never read; neither was his attention ever called to them.
    The charge of the court is stated in the opinion. Judgment was rendered for plaintiff below.

      Walker <& Kent, for plaintiff in error.
    1. Telegraph companies are in no proper sense common carriers, or indeed bailees of any sort.
    Bailment in all its forms, is a contract on the part of the bailee to take some particular thing or person, and deliver again the same thing or person.
    The telegrapher receives a certain message, written or spoken, and undertakes, not to convey the identical message or words, but by means of a new and wonderful process to reproduce the same words at another place and to another person. He may neglect or refuse to perform his promise, but the thing received cannot be stolen, cannot be lost.
    The ground on which, by the policy of the law, the common carrier is made an insurer, is that the goods entrusted to him, are absolutely in his power, that without danger of detection he might claim that they had been lost or stolen. — I Pars, on Oont., 634.
    The reason of the rule failing as to Telegraphers, it is unjust to apply to them a rule confessedly harsh in its application to carriers.
    The reasonable and just rule which should be applied .to him seems to us to be the same applied to most other callings. Holding himself out to the public as a telegrapher he should be held to the exercise of reasonable skill in his occupation. He should also be bound to have reasonably good instruments.
    He should not be held responsible for mistakes without negligence and from causes beyond his control.
    A declaration against him should always aver that he promised to use reasonable diligence and skill; and the breach should be an allegation of neglect.
    In this view of the promise implied in law, it is plain that the court below erred in not giving the last request to charge, made by defendant. The declaration averred an absolute contract to transmit the message to Baltimore. The contract proven was an agreement to use reasonable diligence and skill in sending. Hence, of course, a fatal variance. — 2 Com. ¡Bench, 7.
    ' 2. The law imposes upon all telegraph companies the duty of receiving dispatches for other lines. — 1 Comp. ¡L. p. 676.
    But, from the nature of the case, their contract with the public is only to transmit a message over its own lines, and deliver it to the next line in the course of its journey. — 16 Upper Canada, 530.
    3. The contract is a special one. The printed conditions form a part of it:

      a. The contract was made through an agent. It is well settled that an agent can bind, his principal only when the act in question is within the authority of the agent, or the principal has so acted as to give the party contracting, reason to believe the agent authorized.
    In the case at bar, the agent testifies, without contradiction, that he had no authority to receive messages except in accordance with the printed conditions.

      b. The conditions were general regulations made by the company. They are reasonable regulations, and Carew was bound to take notice of them. If he wanted to send a message he should have inquired on what terms the company sent messages.

      c. By writing his message ujion the company’s blank, Carew assented to the conditions written thereon, and is now estopped from denying his knowledge of them. Even though telegraph companies were to be held to the strict rules of a common carriel, still they could make special contracts limiting their general liability.
    This doctrine is settled in this state. — 6 Mich. 243 ; 25 New Torli, 442; 5 II & N, 867; 45 ¡Barb., 274; 33 M L. S ¡Eq., 180; 18 Md., 341; 1 Mete. Ey., 164.

      C. Hunt, for defendant in error.
    It is not claimed that defendant in error ever read the conditions on the printed blanks of the company, or that his attention was ever called to them.
    1. The principle is elementary that no party can be bound by an instrument, the contents and conditions of which are concealed, or even if the same were not disclosed by the party benefitted thereby.
    Telegraph companies, like common carriers, may limit their liability by a special acceptance when the message is delivered to them, but it must be brought home to the knowledge of those employing them. — 3 Mich., 39; 6 Id., 257.
    2. The same rule must apply to telegraph companies that applies to common carriers who receive the whole compensation for the carriage of a package addressed to a place beyond the limits of their own route. That is, that he engages for the due delivery of the package at the place of destination, unless he expressly limits his responsibility to his own route, or the circumstances are such as to clearly indicate that that was the understanding of the contracting parties. —19 Wend., 534; 25 Id., 660; 8 M & W, 421; 3 Sand, S. G., 610; 24 Bark, 382; 43 Id, 225 ; 8 Pick., 23; 5 B. & P., 182; 4 Ball., 206 ; Law Beg., May, 1866, p. 414.
    3. Where a party assumes to act for another, and where, through his own or his agent’s neglect, the interests of the party reposing the trust are damnified, the party assuming the trust shall answer to the party injured. — 12 Mod., 490.
    It has been held in numerous cases, both in England and this country, where railway companies were defendants, that where the carriage money was only paid as far as the terminus of defendant’s road, and the rest was to be collected on delivery, still the defendants were liable for loss on another and connecting road. — 3 Mig. L. & E. 497.

      It has been held in numerous cases that a plaintiff could not recover damages from a connecting line for a loss occuring on such connecting line, on the ground that there was one contract for the entire sum with the original company, and no contract with any of the connecting companies; thus cutting off all redress whatever should these decisions govern, and the proposition affirmed by the plaintiff in error, be correct. — 4 H. & JST., 614; 5 Id., 274; 7 Id, 986. ’’
    There was no variance between the contract declared upon, and the one proven.
    No reference was made to the paper on which the words were written, nor did plaintiff introduce it as part of his proof; he claimed nothing under it, and in fact never had it in his possession after having used it to write the message on. There was nothing contained in it on which plaintiff could sue. It contained no promise on the part of the company to safely and correctly transmit the words thereon written, to Baltimore. The paper contained no undertaking on the part of the company for a breach of which plaintiff could sue. The paper was utterly worthless to him for any purpose whatever. His case was made out by parol proof of the parol agreement, made with plaintiff to send certain words to Baltimore; of the consideration paid therefor; of the failure of the company to transmit the words as agreed, and the damage resulting therefrom.
   Christiancy J.

Carew, the plaintiff below, wishing to order an amount of oysters from Rowe, Schoolfield & Co., of Baltimore, went to the office of the plaintiffs in error, at Detroit, and wrote and delivered for transmission the following message:

Rowe, Schoolfield & Co. — Carletm, Baltimore, Md.:
Send immediately (40) forty cases cans, (5) fire sacks kegs. Don’t fail.
J. H. CAREW.” and paid for its transmission one dollar and ninety-five cents, the price of an unrepeated message from Detroit to Baltimore.
On the face of the paper upon which the message was written, was printed the following immediately above the written message:
“WESTERN UNION TELEGRAPH CO. — COMMERCIAL MESSAGE.
SEE CONDITIONS ON BACK.
Write plainly. Give fall address. Use no abbreviations or figures. Send the following message, without repeating, subject to above conditions and agreement indorsed on back.”
On the back of the same paper, in full and clear type, was printed the following:
“WESTERN UNION TELEGRAPH COMPANY.
CONDITIONS.
In order to guard against and correct as much as possible some of the errors arising from atmospheric and other causes appertaining to telegraphy, every important message should he repeated by being sent back from the station at which it is received to the station from which it is originally sent. Half the usual price will he charged for repeating the message. And while this company in good faith -will endeavor to send messages correctly and promptly, it will not he responsible for errors or delays in the transmission or delivery, nor for the non-delivery of repeated messages beyond two hundred times the sum paid for sending the message, unless a special agreement for insurance he made in writing, and the amount of risk specified on this agreement, and paid at the time of sending the message. Nor will the company he responsible for any error or delay in the transmission or delivery or for the non-delivery of any unrepeated message beyond the amount paid for sending the same, unless in like manner specially insured, and amount of risk stated thereon and paid for at the time. No liability is assv led for error in cypher or obscure messages. Nor is any liability assumed by this company for any error or neglect of any other company over whose lines this message may he sent to reach its destination. And this company is hereby made the agent of the sender of this message to forward it over the lines extending beyond those of this company.
“No agent or employee is allowed to vary these terms, or to make any other or verbal agreement, nor any promise as to the time of performance; and no one but a Superintendent is authorized to make a special agreement. These terms apply through the whole course of this message, on all lines by which it may be transmitted.”

Tbe plaintiff below testified — and. there was no evidence to the contrary — that he never read the above conditions, nor had his attention called to them — that he was not informed, nor did he know that the message passed over the line of any other Company on its way to Baltimore, or that it was necessary to repeat the message in order to hold the Company responsible for mistakes.

The line of this Company extended only to Philadelphia. The message was correctly transmitted to that point, and there correctly delivered to the agent of the line from Philadelphia to Baltimore. But when received at Baltimore the message read “four cases,” instead of “forty,” and the four cases only were sent by Rowe & Co. This action is brought to recover the damages resulting from this error.

The court charged the jury:

“ 1. That the plaintiff was not bortnd by the conditions on the back of the dispatch, ufiless his attention was called to them.

“ 2. That it is immaterial' on which line the error occurred; the defendant having received the pay for the

proper transmission of the dispatch from Detroit to Baltimore.

“ 3. That if the plaintiff’s attention was not called to the necessity of repeating the message in order to secure its correct delivery, he was not bound so to do, to entitle him to recover.”

To each of these charges exception was taken; and the court was requested, but refused, to charge directly the contrary, and that there was a fatal variance between the contract declared upon and that proved (the declaration being upon an absolute undertaking to send to and deliver the message at Baltimore). If the printed request on the face of the paper, to “send the message without repeating subject to above conditions and agreement on back,” together with the terms and conditions referred to, constituted or governed the contract for transmission, then the entire charge of the court was wrong, and the plaintiff below had no right to recover.

The competency of the parties to enter into such a contract is not denied; but it is insisted that telegraph companies are common carriers; that carriers cannot limit their common law liability by a mere notice, because the other party has the right to insist upon having his goods carried by them, subject to their common law liability, notwithstanding the notice; that the parties employing them are not bound to pay any attention to such notice; and to exempt the carrier from such liability it must be shown, not only that the notice was brought home to the party dealing with him, but that he actually assented to the terms.

We do not deem it necessary to discuss the case upon this theory. Our opinion upon its application to carriers will be expressed in the several cases of the Michigan Southern and Northern Indiana R. R. Co., now before us. We are all agreed that telegraph companies, in the absence of any provision of statute imposing such liabilities, are not common carriers, and that their obligations and liabilities are not to'be measured by the same rules; that they do not become insurers against all errors in the transmission or delivery of messages, except so far as by their rules and regulations, or by contract or otherwise, they choose to assume that position, or hold themselves out as such to the public, or to those who employ them. The statute of this state, authorizing such companies, and, to some extent, prescribing their duties and liabilities, imposes no such liability.— Comp. L. Ch. 70.

Impartiality and good faith-.are the chief, if not the only, obligations required by the statute so far as relates to the question here involved. Beyond these statute requirements, their obligations must be fixed by considerations growing out of the nature of the business in which they are engaged, the character of the particular transactions which may arise in the course of their business, and the application of the principles of, justice and public policy recognized alike by common senje. and the common law. The statutes of the other states in reference to this branch of business are in the main substantially like our own.

Telegraph companies, like common carriers, it is true, exercise a public employment, and the former are bound! to send messages for those who apply, and are ready to j pay the usual or settled charges, as the latter are bound J to transport goods for those who seek their services upon' similar terms; and doubtless the same rules for securing! impartiality would apply to both, except as modified by^ statute — see Section 15 of Chapter 70, above cited. But! .beyond this, as relates to the actual transportation of goods in the one case, and the transmission of ideas ini to • 3 > # /■ the other, there is, in the nature of things and the; different means and agencies employed, but very little substantial resemblance; and any analogy must1 be more fanciful than real, and likely to lead to error and injustice. This is not a case which calls upon us for laying down the rules, which must be held to govern as to the degree of skill, care and diligence to be required in the transmission of messages. But doubtless the use of good apparatus and instruments would be required, and reasonable skill, and a high — perhaps the very highest— degree of care and diligence in their operation. And when an error has occurred in the transmission of a message, it may be found that they ought to be held prima facie guilty of negligence, the ontes of proof resting upon them to show diligence, the means for doing this being peculiarly within their knowledge and power.

But it would be extremely unjust, and, considering the small amount of compensation for sending a message, would effectually put an end to, this method of correspondence, to hold them absolutely liable as insurers for the entire correctness of all messages transmitted, or to ^told them responsible for all damages which might accrue from an error, especially when only a single transmission without repeating, is relied upon or paid for; or, to deny them all power by rules, regulations or notices to limit their liability even in the case of repeated messages. And it would he equally unreasonable to require them to repeat a message when they are paid only for a single .transmission.

And while, in settled weather, or, when the normal condition or operation of the electrical currents is not affected by any temporary or local disturbance, a single transmission by a skillful operator may be relied upon, as a general rule, and for matters of comparatively small importance, yet it must be well known to most men (if, not to all who have such a degree of intelligence as to be likely to resort to this mode of correspondence), that the electrical state of the atmosphere is liable to sudden and violent changes, extending over areas of greater or less extent, which cannot be foreseen or guarded against, and which materially affect the currents transmitted from a battery along the wires, and for a time render the operation of the instruments uncertain and unreliable; that these disturbances often affect distant portions of the line or of a connecting line, while their influence may be scarcely felt or not felt at all at the station from which a message is sent, and that therefore to insure entire and uniform correctness, the only safe method is to have the message verified by repeating it back to the station from which it was sent.

The regulation therefore of most, if not all telegraph companies operating extensive lines, allowing messages to be sent by single transmission for a lower rate of charge, and requiring a larger compensation when repeated, must be considered as highly reasonable, giving to their customers the option of either mode, according to the importance of the message, or any other circumstance which may affect the question.

And as the compensation ought always to be in proportion to the risk assumed, the provision in these' regulations in reference to insurance, must be regarded also as just and reasonable.

As the statute of this state (and of the other states so far as we have examined them) requires them to receive dispatches from and for other telegraph lines, and to tz'ansmit, etc., it is but z-easonable, when the same message is to pass over the lines of more than one company, that each should be responsible only for the errors occurring on its own line; and the receipt of the money by the company first transmitting the message, as the agent of the other lines, is much more for the convenience of the person sending the message, than for that of the company.

Such being the reasonable and settled rules, regulations and usage of this company, it was, we think, for the plaintiff, before sending his message, to acquaint himself with those rules, regulations and usages, and the terms upon which messages would be sent. And in the absence of any special inquiry by him upon the subject, the natural inference would seem to be, either that he already knew and assented to such rules, regulations or usages, or that he intended to assent to them whatever they might be.

But to give to all who should wish to send messages full information upon these matters, in an authentic and reliable form, which could not so well be done verbally by special explanations • to each applicant, this company has very properly printed their rules and regulations upon the very paper upon which each message is to be written; and upon the very face of the paper immediately preceding the blank space on which the message is written, is the printed request to send the message j “ subject to above conditions and agreement indorsed -on ! back.” The signature of the message becomes also an adoption of, and signature to this request. The party sending the message fills up and signs the printed blanks; and, in form, at least, it is as much his contract as if he had written the whole printed conditions or a contract in which they were inserted with his own hand.

This printed matter on the face of the paper could hardly escape the attention of any one not naturally or purposely blind, who should write a message upon the paper. He must at least know that there is some printed matter on the face of the paper, and he must be held to know that it has been placed there for some purpose connected with the message. It is therefore no excuse for him to say he did not read this printed matter before his eyes. It was gross carelessness on his part if he did not.

The printed blank, before the message was written upon it, was a general proposition to all persons of the terms and conditions upon which messages would be sent. By writing the message under it, signing and delivering it for transmission, the plaintiff below accepted the proposition, and it became a contract upon those terms and \conditions. Breese v. United States Telegraph Co., 45 Barb., 274, a parallel case, in all material respects, with the reasoning of which we are fully satisfied. See also Lewis v. Great Western Railway Co., 5 H. & W., 867; Bryant v. Telegraph Co., 1 Daly, 578 ; McAndrews v. Telegraph Co., 33 Eng. L. and Eq., 180.

The conditions on the back of the message, it is true, did not state where the line of this company terminated, nor Avhat other line the message must pass over. But the reference to the terms of sending over other lines, Avas sufficient, if the plaintiff deemed it of any importance to him, to put him upon enquiry, when the fact would at once have been ascertained.

The contract, which the evidence tended to show, was for a single transmission by the company over its own line without repetition, and for delivering the message as the agent of the plaintiff to the next line in its course to Baltimore; a contract which the evidence tended to show had been fully complied with. The contract, therefore, was essentially different from that declared upon. The charge was erroneous upon all the points stated in the record.

The judgment must be • reversed, with costs, and a new trial awarded.

Campbell and Coolet JJ. concurred.

Martin Ch. J. was not present.


text:
    Ira W. Case v. John Rorabacher.

      Exemption from service of process, without arrest, while in attendance on court. There is no general exemption from the s'ervice of process without arrest, • merely "because a party is attending court awaiting the trial of a case.

      Heard July 9th.

      Decided July 11th.

    Error to Livingston Circuit.
    This Avas an action upon a promissory note.
    The defendant filed a plea, in substance, that he Avas attending the Circuit Court in a suit wherein he was a party defendant, and while in such attendance that the summons in said suit was served upon him; and that lie claimed exemption from the service of such process during such attendance. Plaintiff demurred to the plea. The demurrer was overruled and the plea sustained.

      Norris & Uhl, for plaintiff in error.
    The question presented is, can a suitor in attendance, in the county of his residence, upon a suit then pending and for trial, be served with a summons as commencement of another suit in the same court.
    The demurrer was overruled upon the authority of the case of Lyell v. Goodwin, 4 McLean, 29. This is not a case in point, and if it was, we must be permitted to doubt its authority.
    We can find but one case directly in point in favor of the ruling below. — Nays v. Shields, 2 Yeates, 222, (1797).
    A better reasoned case, directly the other way, is found in 1 Peters O. C. 222, (1809).
    Most of the cases in -which the matter is discussed are cases of privilege claimed from arrest. — 4 Lall. 388, 107; 40 Nng. Com. L. 464; 1 Lall. 296; 1 Linney, 77; 9 Serg. & 2?., 150; 1 Miles, 237 ; Andrews, 275; 1 N. J. 300, (Pennington)-, Coxes’, 142; 6 Mass. 245, 264; 8 Johns. 350; 18 Id. 520; 4 Litt. 123; 2 Wend. 586.
    It would seem that suitors have been, and would be, sufficiently well protected by restraining their arrest, and that the simple reading of a summons, inviting their attendance, by attorney, some weeks thereafter, is not a very formidable breach of their privilege, nor a dangerous contempt of court.

      O. Nawjcins, for defendant in error.
   Campbell J.

Rorabacher, the defendant in error, having been sued by service of summons, pleaded in abatement that at the time of service he was attending court as a party to another law suit which had been noticed for trial at. that term, and he therefore claimed privilege from such process.’ This plea was demurred to, and the demurrer was overruled,, and error is brought upon that decision.

We are not prepared to say that cases may not exist where a party to a suit may be entrapped into attendance for vexatious purposes, and where service of j>rocess may not be an abuse to be relieved against. But we think any general exemption from service of jirocess without arrest, merely because a party is attending court awaiting the trial of a cause, is unauthorized by any settled rule of law, and is not required by public policy. We do not feel called on to enlarge personal immunity to such a needless extent, and we can conceive of no legal principle which demands it. Privilege from legal process is, in general, only needed in cases where an arrest is allowed, and where, therefore, service of process directly interferes • with liberty of action. There were at Common Law some privileges also against being sued except in particular courts, and some arising out of peculiar official duties or relations. It is very certain, however, that under our non - imprisonment system very few of these privileges are required for any legitimate purpose, and we think it would be improper to extend them by any supposed analogies, when so much of their reason has ceased to exist.

We think the demurrer should have been sustained, and the judgment must be reversed with qosts, and the defendant must plead .over within twenty days.

Christiancy and Cooley JJ. concurred;

Martin Ch. J. did not sit.


author: Grant, J.

text:
    VILLAGE OF FAIRVIEW v. CITY OF DETROIT.
    Statutes — Subjects and Titles — Sufficiency—Constitutional Law.
    The title of Act No. 455, Local Acts 1907, disclosing an intention to annex the territory of the village of Fairview to the city of Detroit, is not broad enough to cover the body of the act, which repeals the charter of the village, annexes a part of the territory to the city, and leaves the remainder in the township of Grosse Pointe without charter government. (Constitution, art. 4, § 20.)
    Appeal from Wayne; Hosmer, Donovan, Murphy, and Brooke, JJ.
    Submitted October 9, 1907.
    (Docket No. 49.)
    Decided October 15, 1907.
    Bill by the village of Fairview and others against the city of Detroit and others to enjoin the interference with the officers or agents of complainant village, and for other relief. From a decree dismissing the bill, complainants appeal.
    Reversed, and decree entered for complainants.

      Moore & Moore (Daniel J. Gampau, of counsel), for complainants.

      Timothy E. Tarsney, for defendants.
    The purpose of this bill is to enjoin the defendants from interfering with the officers or agents of the village of Fairview in the performance of their duties under the village charter; from taking possession of the books of the village and from levying and collecting taxes upon any property within the corporate limits of said village; and from the performance of certain other acts. The rights of the parties depend upon the Constitutionality of an act of the last legislature (Act No. 455, Local Acts 1907) in annexing a part of the village of Fairview to the city of Detroit. The jurisdiction of the court is not questioned. The defendants demurred to the bill of complaint, and a decree was entered dismissing the bill.
    The title to the act is as follows:
    “An act to annex that certain territory situate in the township of Grosse Pointe in the county of Wayne contained within the corporate limits of the village of Fair-view to the city of Detroit, and to apply and make operative in said territory all statutes, laws and ordinances now or hereafter made applicable to and operative in said city.”
    Section 1 of the act provides:
    “All that territory situate in the village of Fairview in the township of Grosse Pointe in the county of Wayne lying and being west of a line two hundred feet east of Alter Road in said village of Fairview and extending from the northerly limits of said village to Lake St. Clair, shall, by virtue of this act, be annexed to and form a part of said city of Detroit.”
    Section 4, so far as material, is as follows :
    “On and after the said first day of May, nineteen hundred and seven, the corporate organization of the village of Fairview and all the powers and duties of the several officers thereof shall cease, and all corporate powers and authority vested in said township of Grosse Pointe, in respect to the territory hereby annexed to said city, shall cease, and thereupon all right and title to property both real and personal, and all claims and demands belonging to either said village in its corporate capacity and all right and title to real property situate within the territory hereby annexed to said city belonging to the township of Grosse Pointe in its corporate capacity shall pass to and vest in said city. The officers of said village and township respectively, shall thereupon transfer the possession and control thereof to the common council of said city, or to such officer or officers as said common council may direct. All moneys belonging to said village shall be paid over to said city, and all books, papers and documents belonging to said village shall be transferred and delivered to the common council of said city or to such officer of said city as they may direct. The said city of Detroit and the township of Grosse Pointe shall assume and pay such part or portion of all the bonds, debts and obligations of every name and nature owing by said village at the date aforesaid, that is to say, the said city of Detroit shall assume and pay such portion of said bonds, debts and obligations as the assessed valuation of the property within the territory hereby annexed to said city bears to the whole assessed valuation of the territory of said village of Fairview as appears by the last assessment roll of said village, and the said township of Grosse Pointe shall assume and pay such portion of said bonds, debts and obligations as the assessed valuation of that part of the territory in the village of Fairview not so annexed to the said city of Detroit bears to the total valuation of the entire property of said village of Fairview as appears by said last assessment roll of said village.”
    Section 5 provides that all the moneys belonging to said village of Fairview, raised for village purposes or thereafter collected for like purposes, on account of taxes levied and assessed, shall be apportioned between the city and the township according to the relative valuation of the taxable property so annexed to said city, and the valuation of the property so assessed remaining in said township. And the township is—
    “Authorized to levy and assess upon the taxable property within that portion of the village of Fairview remaining in said township and not hereby annexed to the said city of Detroit all sums of money which, by the provisions of this act, said township of Grosse Pointe is required to assume and pay.”
   Grant, J.

(after stating the facts). “No law shall embrace more than one object which shall be expressed in its title.” Art. 4, § 20, Const, of Michigan. Clearly but one object is expressed in the title to this act, namely, to annex the entire territory composing the village of Fairview to the city of Detroit. This title gave notice to legislators and to the people of the city of Detroit, of the township and of the village of Fairview, who were the sole parties interested, that no other purpose should be found in the body of the bill. The people of Detroit might be willing that the entire territory should be annexed to the city, but might have objections to only a part. The people of the village of Fairview might be willing that their entire territory should be annexed to the city, but might seriously object that a part should be annexed and the other part left in the township with their charter repealed.

Village and city corporations are formed in order that the inhabitants thereof may acquire rights, privileges, and means of protection to their health and property which are not and perhaps cannot be exercised by townships. With nothing in the title to this act to indicate any such purpose, the inhabitants of one-third of the village of Fairview are deprived of village government, and all the rights and benefits they had acquired thereunder, and relegated to township government without any notice or opportunity to be heard. By no possible construction can it be held that provisions so radical are germane to the object expressed in the title. I find no case which better illustrates the wisdom of this provision of the Constitution. To hold that these provisions of the body of the act are germane to the object expressed in the title, would be to emasculate this provision of the Constitution and render it of no avail to the people whom it was designed to protect.

A title to detach certain territory from the village of Fairview (Attorney General v. Township Board of Springwells, 143 Mich. 523) would clearly give notice to every inhabitant of the township that his territory might be included in the body of the act. But a title to annex the whole cannot be construed as giving notice that his territory may be divided into two or more parts and attached to other municipalities than the one specified in the title, and leave him without the municipal government under which he has been living and under which he may prefer to live, unless, as the title informs him he may, he prefers to live under a city government.

A general title to regulate the manufacture and sale of an article (People v. Worden Grocer Co., 118 Mich. 606); relative to justices’ courts (Soukup v. Van Dyke, 109 Mich. 679); to organize townships into school districts (Perrizo v. Kesler, 93 Mich. 280); to organize a municipal corporation, etc., is broad enough and sufficient to cover any and every subject germane to the general object stated in the title. When, however, one specific object is stated in the bill, provisions in the body of the act not germane to such specific object render the act void. Cahoon v. Improvement Co., 92 Va. 367; People v. Mellen, 32 Ill. 181; Davies v. Board of Sup’rs of Saginaw Co., 89 Mich. 295; City of Grand Rapids v. Judge of the Superior Court of Grand Rapids, 93 Mich. 469; Niles v. Schoolcraft Circuit Judge, 102 Mich. 328; Callaghan v. Judge of the Superior Court of Detroit, 59 Mich. 610; Blades v. Board of Water Com’rs of Detroit, 122 Mich. 366; City of Lansing v. Board of State Auditors, 111 Mich. 327; Brooks v. Hydorn, 76 Mich. 273.

Probably no other provision of our State Constitutions has given rise to so much litigation as this. In the multitude of cases decided in various jurisdictions there is undoubtedly some conflict, but I have found no case which sustains a title so misleading and deceptive as this.

The decree is reversed, and decree entered in this court declaring the act null and void, and enjoining the defendants from any action under it.

No costs will be allowed.

McAlvay, C. J., and Carpenter, Blair, Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


text:
    SMALL v. CHEBOYGAN CIRCUIT JUDGE.
    Mandamus — Propriety—Orders Reviewable — Other Remedy-Error.
    An order of the circuit court denying a dilatory appeal from an order of the probate court allowing the final account of an executor is a final order, reviewable upon error, and is therefore not the proper subject of mandamus proceedings.
    Mandamus by Etta M. Small to compel Frank Shepherd, circuit judge of Cheboygan county, to vacate an order denying an appeal.
    Submitted October 15, 1907.
    (Calendar No. 22,501.)
    Writ denied October 19, 1907.

      Bush & Bush, for relator.

      Frost & Sprague, for respondent.
   Per Curiam.

Mandamus is asked to compel the respondent to vacate an order denying a dilatory appeal from an order of the probate court allowing the final account of an executor.

The order of the circuit j udge was a final order reviewable upon error and therefore not the proper subject of mandamus proceedings under a rule which we have stated many times. That it is applicable to this case is shown by the cases of Capwell v. Baxter, 58 Mich. 571, and Pickell v. Coates, 147 Mich. 53, both of which were here upon writs of error, a preliminary order for mandamus having been previously denied in the latter case. In City of Flint v. Genesee Circuit Judge, 146 Mich. 439, the subject is discussed, the foregoing and other authorities cited and followed.

The writ is denied.