text:
    BROWN & BROWN COAL CO. v. GRAND TRUNK RAILWAY SYSTEM.
    Carriers — Discrimination—Mandamus—Railroads.
    The refusal of a railway company to extend credit for freight charges to a shipper with whom it had had previous difficulty does not constitute an unreasonable disadvantage or prejudice under Act No. 312, Pub. Acts 1907, and does not entitle the shipper to the writ of mandamus.
    Certiorari to Wayne; Donovan, J.
    Submitted November 16, 1909.
    (Calendar No. 23,211.)
    Decided February 3, 1910.
    Mandamus by the Brown & Brown Coal Company to compel the Grand Trunk Railway System to forward certain freight without the prepayment of charges. An order denying the writ is reviewed by relator on writ of certiorari.
    Affirmed.

      E. T. Berger, for relator.

      L. C. Stanley, for respondent.
   Blair, J.

On or about October 22, 1908, the defendant railroad company delivered to the siding of the relator eight cars of sand, upon all of which cars certain freight charges were due and payable at the time of delivery. On the same day as delivery, the relator directed the railroad company to deliver three of said cars to the Fair view Coal & Supply Company of Detroit, with freight charges to follow, and deliver five of said cars to the People’s Ice Company of Detroit, with charges to follow. In directing charges to follow it was understood that same were collectible from the parties to whom the cars were directed to be forwarded. It is admitted by the railroad company that cars were so delivered and orders were received for forwarding as above stated. The defendant railroad company refused to forward the cars until the charges thereon had been paid by the relator, and refused to undertake to move the cars to, and collect the charges thereon from, the parties to whom they were directed to be forwarded. On October 28, 1908, a car loaded with gravel was delivered to the relator’s siding, and on the same day it directed the railroad company to deliver same to Schillinger Brothers of Detroit, with freight charges to follow. The railroad company refused to move the car until the charges were paid by the relator. The relator claims in this case that it had, until the month of August, 1908, been doing business with the railroad company under its usual custom of forwarding cars to its purchasers with all charges to follow, and that this custom had been in full force and effect ever since it was in the sand and gravel business, and that because of a dispute with the railroad company over car measurements in another and different matter the railroad company, as a retaliatory measure, refused to move the cars in question in this case until the relator had advanced freight charges thereon. The relator further claims that other dealers in sand and gravel in the city of Detroit doing business with the defendant railroad company are accorded the privilege of forwarding materials in car lots to their customers with freight charges to follow and paid by the parties to whom they were to be forwarded. The relator claims that this is the way they do business, and the terms upon which the materials are sold include the payment by the purchaser of the freight charges, and that by reason of the arbitrary action of the defendant railroad company in suddenly refusing to continue its custom the relator company was put to a serious disadvantage with its competitors.

Jacob G. Brown, relator’s assistant manager, testified:

“ The Grand Trunk System maintains what is known as a ‘credit list,’ which is an accommodation extended to different concerns for their convenience, giving them the privilege of ordering their shipments to different yards, etc. When the cars are delivered, the bills are sent and they are paid. It is conducted just like a general book account. Our request was, of course, on the condition that those consignees were upon the credit list of the Grand Trunk. If the parties to whom we directed shipment were not on their credit list, we were willing to prepay the freight. We have done this before. Some time in the spring last year we had a disagreement with the Grand Trunk Railway Company with reference to charges. We disputed their measurements of certain cars upon which the charges are based. The discrepancies were so great that we refused to pay the charges, and asked them to correct the bill, and they refused to do that. There were some 88 bills unpaid for that reason, and that resulted in their canceling our credit and at the same time refuse to move any cars. The dispute was finally settled, but our credit was not restored, although they stated that their reason was not because of any lack of financial standing. Prior to this dispute we had forwarded cars over the Grand Trunk with charges to follow without objection.
‘ ‘ Q. After this dispute and the settlement of it, did they consent to move cars and have charges to follow ?
“A. No; they have refused to do so. The matter of reconsignment of cars with charges tó follow has never been in dispute before; the previous trouble being for the reason stated. We have competitors along the line of the Grand Trunk Railway. We have purchased material from other concerns along the Grand Trunk last year and have ourselves paid the charges on the reconsignment of these cars to us without objection by the railroad company prior to our dispute with them. Our purpose in not prepaying charges and to have them follow the cars to their final buyer is because our sand is sold on pit measurement or railroad measurement, and the customers when they settle for the shipment want to see the freight bills before paying to see if they correspond with the pit measurement. We are always responsible for the freight until it is paid by the reconsignee, but there are about 16 cars that we ordered forwarded that were not delivered, all of them being rejected by the railroad company. Because of the failure of the railroad company to move cars on our order the orders were canceled.”

Respondent’s local freight agent testified:

“There were 22 cars that were held up in the latter part of August, or the first part of September, caused by our canceling their credit on account of their delay in settling charges on previous cars. These charges had remained undisposed of for some days. Finally, they paid our charges as rendered except on three cars, making a difference in the charges of about $1. Those cars were standing there all the time until they paid, so that they had opportunities to remeasure them. As far as my knowledge goes, I have had more trouble with them than with any other firm in settling charges. There was $600 of freight money outstanding and in dispute in October.”

Relator prays for the writ of mandamus commanding the respondent to move the cars refused and all cars in the future, with charges to follow, so long as such privilege is extended to relator’s competitors. Relator relies upon the custom shown as bringing it within the rule of Gates v. Railway Co., 151 Mich. 548 (115 N. W. 420), and upon section 17, Act No. 312, Pub. Acts 1907. In the Gates Case the contract between the parties was alleged to have been made with reference to the custom then existing between the parties to deliver complainant’s logs on defendant’s side track in Bay City for transportation to complainant’s mill on the Michigan Central. The circuit judge granted the preliminary injunction prayed for, commanding the defendant to deliver cars at the customary place until the further order of the court. Defendant appealed, and, in view of the custom, the temporary inconvenience to defendant and the serious injury to complainant of a contrary holding, this court, for the purpose of maintaining the status quo until the final hearing, sustained the trial court.

In the present case the alleged custom, so far as relator was concerned, had only existed from May, 1907, to August, 1908. It did not apply as to all dealers, but only to those who were placed by defendant upon its credit list, and such place did not depend upon contract or other legal right but upon the grace of the defendant. At least, the defendant was entitled to determine for itself to whom it would extend, credit, and, having had serious trouble with relator in collecting its freight charges, we cannot say that it was not justified in striking its name from its credit list. The case is clearly distinguishable from Gates v. Railway Co., supra. Section 17, Act No. 312, Pub. Acts 1907, provides that: “It shall be unlawful for any common carrier, subject to the provisions of this act, to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation,” etc., or subject them “to any undue or unreasonable disadvantage or prejudice in any respect whatsoever.” We do not think that the acts complained of give an undue or unreasonable preference or advantage to relator’s competitors or subject relator to an undue or unreasonable disadvantage or prejudice within the meaning of said section 17. 2 Hutchinson on Carriers (3d Ed.), §§ 567, 799, and cases cited in notes; Little Rock, etc., R. Co. v. St. Louis, etc., R. Co., 63 Fed. 775, 11 C. C. A. 417 (26 L. R. A. 192); Randall v. Railroad Co., 108 N. C. 612 (13 S. E. 137).

The order of the circuit court is affirmed, and the writ is dismissed.

Montgomery, C. J., and Ostrander, Hooker, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J. Blair. J.

license: Public Domain

text:
    McCAUSEY v. HOEK.
    1. Exemptions — Execution—Levy—Debtor and Creditor.
    The selection of their statutory exemptions by merchants who gave a trust mortgage for the benefit of creditors is not conclusive upon a judgment creditor who did not accept rights under the trust, and he is entitled' to attack the amount of such selection by an execution levy upon the property in the hands of an assignee who paid no consideration.
    2. Same — Duty to Claim — Executions.
    Where the assignee of such exempt stock, under a transfer without consideration, does not claim it as exemptions sold to her, the officer who makes a levy is not bound to set them off.
    3. Executions — Levy on Property of Stranger — Effect of Mixing Property.
    No action lies in favor of a stranger to the writ of execution against the officer making a levy upon property subject thereto and other intermingled property of such stranger who refuses to select the goods which belong to her.
    4. Same — Duty of Officer.
    The officer is required to make the selection if he can.
    5. Damages — Trover and Conversion — Levy of Execution on Property of Stranger.
    The damages sustained by a third person from the wrongful levy of an execution are the value of the property converted plus the amount of depreciation of the goods.
    6. Same — Torts—Trespass on the Case.
    A trespasser who interrupts a merchant’s business is liable for the injury to the business.

      7. Same.
    The cost of repurchase of the goods is not the full measure of damages where a merchant is deprived of his entire stock; and he may recover for profits lost as measured by previous gains, and for losses sustained in performing contracts from which he would otherwise have profited.
    8. Same — Duty to Mitigate.
    The damages so recoverable in an action of tort are subject to the duty to mitigate them by the purchase of other goods.

      Error to superior court of Grand Rapids; Stuart, J.
    Submitted November 17, 1909.
    (Docket No. 114.)
    Decided February 3, 1910.
    Trespass on the case by Lena B. McCausey against George Hoek. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Kleinhans & Kndppen, for appellant.

      Charles Á. Watt (Charles V. Hilding, of counsel), for appellee.
   Hooker, J.

The declaration in this cause is “ trespass on the case,” charging an unlawful seizure of a stock of goods and conversion of the same to defendant’s use. In addition to the value of the goods converted, it claims damages for the interruption of the plaintiff’s business and loss of profits. Plaintiff recovered a verdict and judgment of nearly $900, and the defendant appealed.

The plaintiff was conducting a store. She had three classes of goods therein: (1) Some millinery goods given to her by her husband; (2) some furnishing goods that she received from one Sprague; (3) some goods of both kinds purchased by her. The defendant was a constable. He levied on these goods on the 3d day of April, 1907, under an execution issued in a judgment against McCausey and Sprague, claiming the property to be theirs. At the time of the levy and inventory plaintiff claimed the goods to be hers, and the defendant surrendered to her all that she pointed out was hers. This appears to have in-included only some goods from class 3. The goods retained by the officer were at once removed from the store, and soon afterwards plaintiff’s attorney made a formal demand upon defendant for all of the goods taken, claiming them to be the property of the plaintiff. Defendant offered to return to the plaintiff all goods that she would select as her own. She refused to make such selection, or to furnish invoices so that the defendant might do it. Thereafter the defendant sold the goods at execution sale, and they were bid in by one Post at $75 or $85, and the plaintiff immediately took them from him, paying him the exact amount of his bid. This was about six weeks after the levy. The defendant maintains that classes 1 and 2 were subject to levy at the suit of creditors of McCausey and Sprague, former copartners, who were out of business at the time of the levy. He also claims that such portions of the goods in class 3 as he retained had been so mixed with those in the other classes as to make them indistinguishable, and that he was therefore justified in taking them, subject to plaintiff’s right of selection, which he was willing and offered to respect.

These goods were acquired by the plaintiff in the following manner: Her husband and Sprague engaged in the business of selling millinery and furnishing goods; plaintiff assisting in the millinery department. Becoming involved, they gave to the firm of Corl, Knott & Co., a creditor, a trust mortgage of all of their property, except their lawful exemptions, in trust for creditors. Corl, Knott & Co. closed out the stock, after allowing Mc-Causey to select certain goods as exemptions for himself and Sprague. This occurred about March 8, 1907. The creditors were not paid in full, and McCausey and Sprague were insolvent. These so-called exemptions went into the possession of plaintiff, class 1 by gift from McCausey, and class 2 under an oral arrangement that if Sprague did not succeed in selling them, plaintiff should put them with her stock and sell them, accounting to Sprague for the proceeds. He did not sell them, and she put them on the shelves for sale. She also bought some goods of both kinds to replenish stock, and these were placed on the shelves also. These constituted the goods in class 3.

At the time that McCausey and Sprague went out of business, they had a right, as against their creditors, to exemptions, but the creditors could not be bound by their selection; i. e., as to amount and value. Each was entitled to select from the Stock goods amounting in value to $250, and no more, and we see no reason for saying that the judgment creditors in this case were bound to admit such selection to have been a valid one, even if the mortgagee did acquiesce. They did not attack the voluntary trust mortgage, and it is not shown that they accepted a dividend from the trustee; but, if they did, this did not deprive them of the right to enforce their judgment against any of the property of the judgment debtors. And such property, in the hands of an assignee who paid no consideration, was subject to the levy, with the right to have exemptions set off if entitled to them and demanded. See Ostrander v. Packer, 35 Mich. 430.

They levied their execution upon property supposed to belong to the judgment debtors, and proceeded to make an inventory. At that time the judgment debtors were out of the mercantile business; one had gone away, and the other had engaged in other business. The record does not show that the officer had any reason to suppose that they were claiming this property as a selected exemption, or that they were engaged in a business making it exempt. Yet he proceeded to inventory it. Then the plaintiff claimed the property as her own. She did not claim it as exempt property sold to her. Upon this record the officer owed her no duty as to setting off exemptions, as she claimed none. Had she done so, the levy would not have been unlawful, for the judgment creditor had a right to levy and set off exemptions. By an ex parte selection of an amount for exemptions those parties did not conclude the defendants. The assignee succeeded to McCausey’s rights to exemption, but it was necessary for her to assert them. Williams v. Brown, 137 Mich. 569 (100 N. W. 786). Not having done so, she has waived her right to the goods in class 1. The same may be said of the goods in class 2, and, further, she makes no claims to recovery of those goods, as shown by her counsel’s brief. They may therefore be considered as out of the case.

Having found that the defendant lawfully seized and sold the goods in classes 1 and 2, it leaves only those in class 3 to be considered. Those goods were not subject to this execution, and it is only upon the theory of admixture of goods, and a refusal by her to designate them, which no other person could do, that the defendant can escape liability. The proof conclusively shows that she was offered the opportunity of selecting and taking any and all goods that she should claim to be hers. The offer was broad enough to cover goods in any class. She refused ; her language implying that she preferred another method of getting her rights. We recognize the injustice of compelling any one to lose their goods through admixture, where it can be avoided. We have no doubt that the intermixture was made in perfect good faith, but the refusal to point but the goods purchased by her, other than to say she claimed them all, was not treating the officer fairly, and it was equivalent to an intentional admixture of her own with goods clearly subject to levy. The officer had the alternative of releasing all the goods or selling all. If he released goods subject to levy and sale, he became liable to the execution creditor. We think, therefore, that he was justified in making the sale.

Counsel for defendant cite many authorities sustaining the propriety of seizing admixed goods, including some subject, and others not subject, to execution. In such a case it is undoubtedly his duty to separate them if possible. In Daumiel v. Gorham, 6 Cal. 44, the court said:

“Where the goods of a third person are mixed with the property, or in the apparent possession of the judgment debtor, a sheriff who levies upon them, supposing them to belong to the defendant in execution, is not liable as a trespasser ab initio. In order to charge him it is necessary to show a notice and demand of the goods, and a delay or refusal to deliver.”

In Taylor v. Jones, 42 N. H. 25, 33, we find it stated that:

“ If the plaintiff’s goods were intermingled with those of Rand through his own fault, he had neither the possession, nor right of possession, of the goods as against a creditor or an officer having process against Rand, and attaching the whole intermixture as the property of Rand, and therefore could not maintain trespass for taking them.”

It was said in Lewis v. Whittimore, 5 N. H. 364-366 (22 Am. Dec. 466):

“ The direction which was given to the jury in this case in relation to the corn was correct. It is immaterial whether the corn had been mixed with the plaintiff’s assent or not. It was all in the possession of the plaintiff’s agent, Haywood, and, while in Haywood’s possession, had been intermixed. Haywood at first told the officer that the corn belonged entirely to the plaintiff; and, although he afterwards informed the officer that only a part of the corn belonged to the plaintiff, it does not appear that he stated what portion was the property of the plaintiff. It was the duty of the officer to attach the goods of the debtor, notwithstanding they were intermixed with the goods of the plaintiff; and he had a right to take and hold the whole until the plaintiff identified his goods, and demanded a redelivery. Shumway v. Rutter, 8 Pick. (Mass.) 443. (19 Am. Dec. 340); Bond v. Ward, 7 Mass. 127 (5 Am. Dec. 28); 2 Blackstone’s Commentaries, p. 405; Pettingill v. Bartlett, 1 N. H. 87; Cooper’s Justinian, Lib. 2 F. 1, §§ 17, 18. The sheriff cannot be treated as a trespasser for doing what he had a right to do. If the plaintiff gave the officer notice of what interest he had in the corn, and demanded a return, trover may be maintained. If the officer has sold the whole, after notice of the plaintiff’s claim, that may be a conversion. But trespass does not lie for the original taking.”
“ It is, at all events, the business of the owner who, wilfully or carelessly, has allowed his goods to become confused with those of a debtor to point out to the officer what belongs to him; and since his own duty is to attach the debtor’s goods, whether so mingled or not, the officer is no trespasser merely for having attached, in good faith and with due care, those of another blended in the same mass.” 2 Schouler on Personal Property (3d Ed.), § 50.

In Smokey v. Peters-Calhoun Co., 66 Miss. 471, 475 (5 South. 632, 14 Am. St. Rep. 575), it was said:

“ The goods claimed by appellant having been levied on under the writ of attachment, as part of a stock of goods intermixed with those of the defendant in the attachment, and appellant having claimed the whole of the stock, instead of pointing out and giving notice to the sheriff of what particular part of it belonged to him, he is not entitled to recover damages for his part of the gooods having been seized and held by the sheriff, until they were, for the first time, designated as belonging to him, on the trial of the claimant’s issue. It was the duty of the sheriff to levy on the goods of the defendant in attachment, notwithstanding they were intermixed with those of appellant, and he had a right, and it was his duty, to take and keep the whole, until appellant identified his part of the stock, and demanded that it should be delivered to him. The sheriff cannot be treated as a trespasser for doing what he had a right to do.”

The following excerpts from cases are in point: Orr Shoe Co. v. Frankenthal, 4 Ind. T. 375 (69 S. W. 908):

“ If the plaintiffs’ agent were claiming the whole of the stock of goods, and as such agent, on the part of plaintiffs, he had a bill of sale of only part of said stock, this would be such a fraud upon the officer that there could be no liability whatever in his seizure, under his attachment writ, of the whole of the stock of goods. And if this contention was maintained after the service of the writ, and were all of the goods in the possession of the officer, it would still be a fraud upon such officer, and there would be no liability.”

Helfrich v. Stem, 17 Pa. 153:

“ If, at the time of the levy, it was known to the vendee that the goods were taken as the property of the vendor, and as a means of avoiding the sale, and the vendee gave only a general notice of his claim, such notice will be construed to mean no more than a denial of the fraud in the sale; and it would be unjust and unlawful to allow him, on such notice, to make the sheriff a trespasser, by proof that since the sale to him, he had made additions to the store out of his own means, and confounded them with the goods fraudulently transferred to him.”

Wellington v. Sedgwick, 12 Cal. 476:

“It seems that these goods so sold were mixed with other goods subsequently bought by Wellington; and the sheriff, by virtue of the last execution, levied on these subsequently acquired goods, as well as those first seized. If the goods first bought were fraudulently sold to Wellington, they were, of course, subject to the execution; and, if they were so mixed or confounded with other goods as that they could not be identified or distinguished, and Wellington failed to point out to the sheriff or designate the goods which were not subject to execution, the sheriff could not be liable for levying on the whole. But the sheriff would be bound, after the levy, on notice to him of the goods not liable, to restore them; but this notice must be specific, apprising him of and designating the particular goods improperly seized, and must be given previously to suit brought.”

In Zielke v. Morgan, 50 Wis. 567 (7 N. W. 651):

“There was evidence which would have warranted the jury in finding, and the jury must now be presumed to have found, that these classes of goods were so mingled in and with the general stock of goods so taken by the respondent on the attachment, as to be indistinguishable, except by the appellant himself, and that the respondent had no knowledge of their identity, or that they were embraced in the stock, and that the appellant said nothing about them at the time of the levy.
“ The appellant not only did not claim any parts of the stock by any particular right, irrespective of his purchase from his son, but made a claim utterly inconsistent with such particular right by claiming the whole stock by this fraudulent purchase, and thereby induced the respondent to believe that he had no other right. This not only constituted a waiver of his particular right by failure to claim it at the proper time, but it should operate as an estoppel. The appellant should now be bound by the state of facts which he then induced the respondents to act upon.”

In 5 Current Law, p. 12, it is said that—

“ It is the duty of a stranger to an execution, whose goods are so intermingled with those of the execution debtor that they cannot be readily distinguished, to designate them to the officer making the levy; and, if he fails to do so, the latter may levy upon the whole.”

See, also, 4 Cyc. p. 555. See, also, Zuehlke v. Stone, 148 Mich. 478 (111 N. W. 1065). We think this rule is not inconsistent with Wetherbee v. Green, 22 Mich. 311 (7 Am. Rep. 653), and other cases cited by plaintiff.

These views require us to reverse the judgment; but, as the cause may be tried again, we discuss the question of damages. If the goods given by McCausey were worth only $350 when selected, and the plaintiff had sold some of them, it is sufficiently favorable to her to call those seized worth $350. The goods purchased by her amounted to $343.75, making a total of $593.75, or, as claimed, $605. She did business in the neighborhood of two weeks, realizing profits of some considerable amount, according to her testimony. Some of these goods were returned to her; and when it came to a sale she was able to regain all of them for $75 or $85. Yet a jury gave her a verdict of nearly $900, which was so plainly excessive that the trial judge required a large reduction as a condition for the denial of a motion for a new trial. The plaintiff claimed damages as'follows:

(1) The value of the goods converted.
(3) The loss of profits during a period of some weeks pending her reopening two days after the sale.
(3) The loss of profits on certain alleged orders which she had taken.

The Value of the Goods Converted. The declaration attempts to combine in one count a claim for damages for the conversion of property and damages for the interruption. The measure of the former is the value of the property converted, or, if recovered, the cost of such recovery plus the amount of depreciation of the goods.

Damages for Interruption of Business. That one who, by an act of trespass, renders it impossible to conduct a going business is liable for damages, is settled for this State by the old case of Allison v. Chandler, 11 Mich. 542. It has been followed in other cases as late as Hart v. Village of New Haven, 130 Mich. 181, 186 (89 N. W. 677).

We are of the opinion that the cost of repurchase is not necessarily the full measure of damages in a case where a merchant is deprived of his entire stock. If he was doing a profitable business, and could show approximately the measure of his profits for a period preceding the unlawful interruption, and if he had contracts which could be shown to have included a profit, if performed, and he was prevented from performance, these facts would be proper evidence to go to the jury upon the subject of injury from interruption of his business. This proof would be subject to the inquiry of the necessity for the continuance of the interruption, and whether by the purchase of a new stock, or material for the performance of existing contracts, he could not in whole or in part have avoided or mitigated the damages; but, as we have said before in cases cited, a man who has certainly injured another cannot escape liability in an action of tort, through the difficulty of proving the exact amount of damage suffered. We think a fuller discussion of this question unnecessary, as the cases cited indicate the proper rule for instructing juries in such cases.

The judgment is reversed, and a new trial ordered.

Moore, McAlvay, and Brooke, JJ., concurred with Hooker, J.

Blair. J.

As this record presents the facts, I concur. If upon another trial it appears that Wilson Bros, recognized the trust mortgage and participated in the dividends, I shall feel a,t liberty to reach a different result.


author: McAlvay, J.

text:
    MICHIGAN RAILROAD COMMISSION v. MICHIGAN CENTRAL RAILROAD CO.
    Mandamus — Railroads—Constitutional Law —Michigan Railway Commission.
    An order of the Michigan railroad commission fixing a minimum rate for excess baggage to be charged by steam railroads, not confiscatory in amount, is enforceable by mandamus although a proceeding in equity is pending on appeal in the Supreme Court for a determination of the legality of the action of such commission; an injunction to restrain the enforcement of the order haying been denied in the chancery proceeding.
    Mandamus by the Michigan railroad commission to compel the Michigan Central Railroad Company and others to put in force an order fixing certain excess baggage rates.
    Submitted November 16, 1909.
    (Calendar No. 23,675.)
    Writ granted February 3, 1910.

      John E. Bird, Attorney General, and Lucking, Emmons & Helfman, for relator.

      McPherson, Bills & Streeter (O. E. Butterfield,, James H. Campbell, and L. C. Stanley, of counsel), for respondents.
   McAlvay, J.

This is an application on the part of relator for a writ of mandamus to compel the respondent railway companies to put in force an order adopted by relator January 15, 1909, fixing a tariff of rates for excess baggage, and also to put in force the modification of said order made August 4, 1909. Relator is a body politic and corporate, known as the Michigan railroad commission, organized and existing under Act No. 300, Pub. Acts 1909, and is the successor to Michigan railroad commission, heretofore organized and existing under Act No. 312, Pub. Acts 1907. The order of January 15, 1909, was made by relator under the duties and powers vested in it by law, upon proceedings duly taken before it by petition filed July 10, 1908, and after a full hearing. After this order was promulgated and served, respondents, being dissatisfied, asserted their rights under the statute by proceeding against relator by bill in chancery in the "Wayne circuit court to vacate and set aside such order as unlawful and unreasonable, praying that pending the determination of the validity of the order the commission be enjoined froth making said order effective, and from commencing any proceeding to enforce compliance therewith. A temporary injunction was also asked. After a hearing the injunction was denied, and respondents then applied to this court for a writ of mandamus to compel the issuance of such injunction. A temporary stay of proceedings was granted, and after full argument the writ was denied. Michigan Cent. R. Co. v. Wayne Circuit Judge, 156 Mich. 459 (120 N. W. 1073). Afterwards the case came on for hearing before the circuit court on May 29, 1909. These respondents, who were the complainants, offered no evidence. All the evidence in the case was put in on the part of relators. A final decree denying relief was granted September 27, 1909. An appeal has been taken from such decree to this court, and is now pending.

On June 8, 1909, a petition was filed before relator by parties duly authorized by law so to.do, complaining that the minimum charges fixed by the order of January 15th were unreasonable and excessive. This petition was answered by respondents, and was heard July 21, 1909; the hearing being confined to the consideration of minimum charges. After due consideration on August 4, 1909, relator made an order modifying the order of January 15th, and making a single minimum charge of 25 cents. This was the only modification made. After service of this order respondents, except the Grand Rapids & Indiana Railway Company, filed another bill to set aside and vacate the order of August 4th, and the order of January 15th as affected by that order. Relator has answered this bill,, denying all equities. Within a few days of the time when this last bill in chancery was filed, respondent Grand Rapids & Indiana Railway Company filed its bill in the Kent .circuit court, in chancery, against relator, to vacate and set aside as invalid the order of August 4,1909. Relator has answered this bill, denying all equities. The statute provides that the order fixing rates shall take effect and become operative in 20 days after service thereof, and all railroads to which the order applies shall make such changes in their schedule on file as may be necessary to conform with such order; that all rates fixed by the commission shall be in force and prima facie lawful and reasonable until finally found otherwise, or until changed or modified by the commission. The orders of the commission herein referred to have not been put in force and made effective by respondents. They neglect and refuse to comply with them. It appears from the records of these proceedings that on the hearing before the circuit court, and before this court in-asking for a mandamus to compel the court to grant an injunction, respondents admitted that the rates fixed by the order of the commission were not confiscatory. We do not find that such claim is now made.

In the opinion of this court written by Mr. Justice Grant, handed down when respondents’ application for a writ of mandamus to compel the issuance of an injunction was denied, all of the facts in the case were stated at length. Reference is had to such opinion, to be read in connection with, and necessarily a part of, this opinion. Michigan Cent. R. Co. v. Wayne Circuit Judge, supra. Such reading clearly indicates the opinion of this court that the rates fixed in the order complained of should be operative and continue in force as provided by law. Since that time respondents have had opportunity, at the final hearing of the chancery case, to produce evidence in support of their contention, and have failed to do so. The circuit court found against them, and a final decree was entered accordingly. The fact that the case is now in this court upon an appeal from such decision does not, in our opinion, affect the question of the application of the statute. In fact the prospect of a term of years elapsing before a final determination of the questions raised is, under the circumstances of this case, a cogent reason why the legislature provided that the order should be effective during such delays. That in certain cases such orders ought to be suspended is probably true, but we think the authorities support the contention of relator that these orders should be put in force by respondents. City of Knoxville v. Water Co., 212 U. S. 1 (29 Sup. Ct. 148).

The statute provides a remedy by mandamus. The writ will issue.

Ostbandeb, Hookeb, Bbooke, and Blaib, JJ., concurred.


author: Hooker, J.

text:
    STARR PIANO CO. v. MORRISON.
    1. Sales — Conditional Sale — Consignment—Eeplevin by Consignor — Estoppel.
    Under an agreement which provided that the consignee of the plaintiff’s pianos might sell for cash or to responsible purchasers on credit, reserving a lien, no title passed to a purchaser who paid no cash but exchanged other property for the piano, in the absence of evidence tending to show that plaintiff is estopped to recover the property.
    2. Same — Title.
    Possession of personalty is merely prima facie evidence of ownership.

      3. Same — Customs and Usages — Principal and Agent.
    The terms of a contract which clearly and explicitly give the consignee of a piano authority to sell, may not be extended by proof of a custom of piano dealers to make exchanges.
    Error to Isabella; Searl, J., presiding.
    Submitted December 13, 1909.
    (Docket No. 181.)
    Decided February 3, 1910.
    Replevin by the Starr Piano Company against John W. Morrison. A judgment for defendant is reviewed by plaintiff on writ of error.
    Reversed.

      H. A. Sanford and F. H. Dodds, for appellant.

      F. C. Wallington and Francis McNamara, for appellee.
   Hooker, J.

Ray was a music dealer and carried on business at Ithaca, Mich., under the name of the Ithaca Music Company. In short, plaintiff claims that Ray and that company were one and the same person, the Ithaca Music Company being a trade-name which Ray had assumed and sometimes used. Ray, over his own signature, executed a contract with the Starr Piano Company, by which the latter agreed to consign pianos to Ray for sale. It fixed the terms on which they might be sold by Ray, and provided that sales should be settled for by Ray. It contained the following provisions:

“(1) The said company will (consign) to said party of the second part, to be sold for and on account of said company, pianos of such kind and quality and in such quantity or quantities as may be mutually agreed upon from time to time, upon the terms and conditions hereinafter set forth.
“(2) Said party of the second part shall offer or sell the goods consigned to him by said company, under the terms of this agreement, to parties residing in the counties of Gratiot and Isabella, State of Michigan. In assigning certain territory to an agent the Starr Piano Company do not thereby assume to pay commissions to said agent on other sales made therein.
“(3) The terms upon which said party of the second part may sell said pianos are (a) for cash; (b) to responsible parties for part cash and part lien paper; (c) to responsible parties wholly on lien paper; (d) or the same may be mortgaged or leased as hereinafter set forth. When sold or leased and returns made therefor in cash to said company within thirty days after shipment thereof by said company, said party of the second part shall pay the invoice less 10 per cent., or if returns be made in cash after thirty days and before sixty days after shipment thereof said party of the second part shall pay the invoice price less 9 per cent., or if returns be made in cash after sixty days and before ninety days after shipment thereof, said party of the second part shall pay the invoice price less 8 per cent., or if returns be made after ninety days and before four months after shipment thereof said party of the second part shall pay the invoice price less 8 per cent. If returns shall be made after four months from date of shipment, interest at the rate of six (6) per cent, per annum shall be added to the price of the invoice and continued until such time as the Starr Piano Company is paid all amounts, due on such instrument in full, except that a discount of 8 per cent, shall be allowed for cash. * * *
“ (12) No part of this agreement shall be construed as in any manner whatever divesting the Starr Piano Company of absolute ownership in every piano shipped by it to said party of the second part, or to any person or persons said party of the second part may direct the same to be shipped, until all demands due or owing to said company for such piano, with interest and expenses as aforesaid, shall have been fully paid.”

The piano in question was sent to Ray, who receipted as follows:

“Detroit, Michigan, August 17, 1907.
“ Consigned by the Starr Piano Company,
“Manufacturers of High Grade Pianos,
“To the Ithaca Music Co.,
“Ithaca, Mich.
“ Terms as per contract.
“One Starr Piano, Style R. No. 54,739. Price $400.
“Received the above described piano, in good order and condition in all respects, and we agree to sell the same for account of the Starr Piano Co., and account to them or their authorized agent for the full value as above, and that no expense or claim of any kind shall be made against the above described piano while we hold the same for sale, and that the above described piano shall continue to be the property of the Starr Piano Company, until the same is fully accounted for at value as above mentioned, as per contract. After four months from date of shipment, and until accounted for, six per cent, interest shall be charged us, but with the understanding that we will account for said piano within four months from date, and if not accounted for at the expiration of that time said piano to be returned to the Starr Piano Company upon their order at our expense, either to Detroit, Michigan, or any place where they may direct, provided the rate of freight does not exceed that to Detroit, Michigan.
[Signature] “Ithaca Music Co.,
“By F. J. Ray, Prop.”

Both contract and receipt bore the same date, and there is nothing to indicate that any other piano was received under the contract. Plaintiff was never paid for the piano. Ray had previously sold a Stiger piano to a man named Morrison for which his consignor claimed he had not paid. Being anxious to get the Stiger piano into his possession to save trouble, he (Ray) sent an employe to see Morrison, with instructions to trade the piano involved in this suit to Morrison for the Stiger, and this was done; the exchange being even. Plaintiff replevied the piano in this action, and appeals from an adverse verdict and judgment.

This piano was delivered to Ray with express authority to sell, and, while no title passed upon its delivery to Ray, the plaintiff may be estopped as against a bona fide purchaser who relied on Ray’s authority to sell from an assertion of title. See 6 Am. & Eng. Enc. Law (2d Ed.), pp. 486, 487, and Michigan cases cited, and pages 482 and 483 and notes; Pratt v. Burhans, 84 Mich. 489 (47 N. W. 1064, 22 Am. St. Rep. 703); Williston on Sales, § 317 and notes, section 329 and notes, and section 338 and notes; 1 Benjamin on Sales (Am. Ed.), §§ 448, 449; Columbus Buggy Co. v. Turley, 32 L. R. A. 260 (73 Miss. 529, 19 South. 232, 55 Am. St. Rep. 550), and cases cited therein. It was not error to leave the question of defendant’s bona fides to the jury, unless the fact that he traded the old piano for the new one was an act not within the scope of Ray’s authority. It is contended by defendant’s counsel that plaintiff gave Ray a general authority to sell its pianos, which gave him power to trade under the general custom, and, furthermore, that the defendant was not bound to inquire regarding limitations and secret instructions contained in the contract of agency or sale; while plaintiff contends that defendant’s purchase was not authorized by the authority given nor was it a sale in the course of trade, nor was the purchase made in reliance upon any authority given, or any holding out of Ray as authorized to sell or trade the piano. What did the defendant know about Ray’s title and right to sell ? Only this: The offer of the piano at his place by Ray’s salesman and his representation that it was Ray’s piano. This was no more than the representation of Ray. The possession of the piano was no more than prima facie evidence of Ray’s ownership, for it was as consistent with other theories; e. g., that he was a bailee or wrongdoer. See Mechem on Agency, § 786.

These things were not enough to estop plaintiff. What is there then to estop him that came to defendant’s notice ? Not his contract surely, nor the fact that he had authorized Ray to sell, nor that he so held out to the defendant, nor even the fact that plaintiff had ever been the owner. He did nothing inconsistent with his claim that ever came to defendant’s notice, or upon which he relied, or which induced his belief in Ray’s ownership. Hence there is no estoppel in this cáse. Mechem on Agency, § 787.

It follows that the defendant must rely upon the actual authority given by the contract. It is silent upon the subject of exchanging. It gives authority to sell and to lease, but it provides in plain terms for cash and notes in payment, and is explicit in defining the terms on which the pianos may be sold. There is nothing in it which justifies an inference that the parties intended sales to be made in any other way, nor can the contract, which is clear and explicit, be enlarged by proof of a custom on the part of piano dealers in general to exchange pianos. Mechem on Agency, § 352. The fact is obvious that Ray’s agent went to the defendant with a falsehood, and bartered plaintiff’s instrument, which he had not a right to do, instead of selling it, as he may have had a right to do. Had defendant known or supposed he was dealing with plaintiff’s agent, and even had a right to suppose that he had authority to sell, without further inquiry, he should have known that the exchange made was not within an authority to sell. See Mechem on Agency, §§ 326, 352.

Upon the undisputed facts a verdict should have been directed for plaintiff.

The judgment is reversed, and a new trial ordered.

Montgomery, C. J., and Ostrander, Moore, and McAi/VAY, JJ., concurred.


author: Ostrander, J.

text:
    GRAND TRUNK RAILWAY COMPANY OF CANADA v. WOLCOTT.
    1. Cancellation — Reformation of Instruments — Mistake — Equity.
    The court of equity has jurisdiction to cancel a written contract from which a material clause has been omitted by mistake, upon a bill to reform the agreement, to enjoin an action at law on it, and for general relief.
    2. Same — Equity—Clean Hands — Public Policy — Restraint of Trade.
    The objection that the complainant does not come into court with clean hands, because the contract is an attempted restraint of trade, is not sustainable in a proceeding to which the public is not a party, when the agreement merely provides that a siding should be constructed to defendants’ mill to connect with the complainant’s track and that the defendants should not engage in elevator business in connection with any building on the siding.

      Appeal from Macomb; E^skine, J.
    Submitted December 13, 1909.
    (Docket No. 124.)
    Decided February 3, 1910.
    Bill by the Grand Trunk Railway Company of Canada against Anson E. Wolcott and John P. Wolcott, co-partners as Wolcott Bros., to restrain an action at law, and for the reformation of a contract. From a decree for complainant, defendants appeal.
    Affirmed.
    The bill is filed to restrain proceedings at law, to reform a written instrument, and for general relief. The court found that the instrument ought to be canceled, and not reformed, and ordered it to be delivered up to the register of the court for cancellation, provided complainant paid to defendants the sum of $75; “said payment being the terms upon which the relief by cancellation is granted.” Defendants have appealed. Under date March 18, 1901, after considerable correspondence between them, oral and written, the parties entered into a written agreement for the construction of a siding from complainant’s track and right of way to defendants’ mill, and for the use and maintenance of such siding. Clause 21 of the agreement, which appears to have been written in ink upon a printed form, reads:
    “ (21) The contractor [defendant] agrees, in consideration of the premises, that he will not engage in an ‘ elevator business’, so-called, in connection with any building or buildings to which this siding is laid, or in connection with any building which may be hereafter erected and reached by said siding; but will confine his business strictly to a ‘ milling business,’ so-called.”
    The siding which this agreement provided for was not constructed. Defendants purchased land upon which a more satisfactory siding could be constructed. A new survey was made. A new agreement for a siding, also in writing, dated July 19, 1901, was executed by the parties. It did not contain the clause 21 above referred to. The first contract was canceled by mutual consent. The siding was constructed. Thereafter it came to the knowledge of complainant that defendants were doing an elevator business. A controversy arose; complainant claiming that the substance of clause 21 of the first agreement should have been inserted in the second agreement, and had been omitted by mistake. Complainant meantime refused to furnish cars upon the siding, gave the notice for termination of the agreement which both agreements expressly provided for — a three months’ notice — and finally removed connections so as to prevent use of the siding. Later the parties executed a new agreement, which bears date July 19, 1902, which contains a clause similar to that one numbered 21 in the first agreement and, also, the following:
    “It is hereby agreed that two certain written agreements between the above parties, the one dated March 18, 1901, and the other dated July 19, 1901, are canceled and all rights under them terminated from the delivery hereof, they being superseded by this agreement.”
    The suit at law, begun October 9, 1906, was brought to recover damages for failure and for refusal of complainant to furnish cars on the siding during the period it is claimed the second agreement was in force. The bill of complaint charges that the restrictive clause was omitted from the second agreement by mistake.
   Ostrander, J.

(after stating the facts). It must be assumed, I think, that the railroad company violated the terms of the agreement of July 19, 1901, and that defendants have a right of action, at law, for any resulting damages, unless (1) all rights under the agreement were surrendered when the last contract was made; or (2) unless equity ought to and may treat the said second agreement as an agreement entered into by mutual mistake of the parties. The first point is argued at some length by counsel for appellants. It is not asserted by complainant as a ground for equitable relief. We do not consider it.

As to the second point: The complainant had leased land to one McIntyre, who had a siding, and who operated an elevator. The route for the siding first surveyed and agreed about was across the land leased to McIntyre. Complainant considered itself under some obligations to McIntyre to prevent competition in the business of buying and shipping grain at this point. It also believed, or assumed, that one elevator was sufficient for the local business of buying-and shipping grain. These facts and views furnish the reasons asserted for the restrictive clause in the first contract with these defendants. As has been stated, the clause was written in ink upon a printed form, taking the place of a printed clause in the form bearing the same number. Defendants, having purchased land to secure a more suitable siding, and one which did not cross land leased to McIntyre, received and executed the second contract, a copy of which was later returned to them, which did not contain the restrictive clause. Complainant asks the court to find that the omission of this clause from the second contract was an inadvertence, oversight, mistake, on the part of complainant, and to find, further, that defendants had no reason to expect, and did not expect, to receive a contract with the clause omitted therefrom; in short, to find that the actual intention of both parties was to make a contract for a siding which should not be used in connection with an elevator business. That this was the original intention of the parties cannot be doubted. The division freight agent of complainant, in a letter of December 24, 1900, sending all papers in the matter to the local agent at Mt. Clemens, said:

"If the contracting parties are prepared to enter into an agreement to confine their business to milling and not engage in the elevator business at that point, I will recommend the building of the proposed side track on the terms. * * * If they wish to accept these terms, they must so state to you in writing, which attach to these-papers and return.”

Mr. A. E. Wolcott, then proprietor of the mill, did write, in reply,

“ I am perfectly willing to accept tbe terms as offered by your company.”

I find no testimony tending to prove that any other or different understanding was arrived at, excepting, of course, the terms of the second contract. There is testimony on the part of defendants tending to prove that before the second contract was executed defendants had assurances from the proper officer or officers of complainant that they would be permitted to ship out grain bought locally out of condition for milling purposes, and that when they were requested to surrender the second contract, and did do so, they expected the restrictive clause to be inserted, but modified in accordance with such assurances. When it was returned to them, containing the same restrictive clause as appeáred in the first contract, they mutilated the duplicate which had been sent to them, and returned it to complainant. It also appears that after it was discovered that the second contract did not contain the restrictive clause in question, and after defendants had been notified that the form of the contract must be corrected, defendants, on January 11, 1902, after cars had been refused them, wrote to the division freight agent, the officer of complainant who had charge of the matter, upon whose recommendation alone such sidings were installed, the following:

If you consider that your company is under no obligation to receive grain from our siding, and that this is in accordance with Mr. A. E. Wolcott’s agreement with you, then we are perfectly willing to let the matter stand as it is. As soon as convenient, please send bill in full for labor and material, and we will send check to balance.”

From this and other evidence I am satisfied that the second contract did not set out the agreement of the parties, and that defendants understood that it did not. I am satisfied, also, that the execution and delivery of such a contract was an inadvertence on the part of complainant.

Appellants’ contentions are: First, that the bill prays for reformation, and not for rescission, of the contract; second, that there is no testimony tending to prove a mistake; third, that the contract has been recognized and canceled; fourth, if any mistake was made, it was due to the negligence and carelessness of complainant; fifth, the complainant’s hands are not clean; sixth, rescission ought to be upon terms which will place the defendants in statu quo; seventh, the rights of the parties can be determined at law. If, in fact, the contract does not express the agreement and understanding of the parties, and if the failure to express the actual understanding is due to inadvertence of one party, the other contentions which are made are, save only the fifth one, technical, rather than meritorious.

The fifth contention is grounded in argument, upon the theory that complainant’s objections to entering into a contract without the restriction, and its conduct towards defendants after the contract was executed, are alike unconscionable; that the purpose of the restrictive clause was to prevent competition with McIntyre, and the whole arrangement was opposed to public policy and in restraint of trade. If is a sufficient answer to say that both this and the lawsuit are adversary proceedings, to which the public is not a party. In the lawsuit defendants seek to recover damages for the breach of an alleged agreement. If no such agreement as is counted upon was actually made, there ought to be no recovery for its breach. The contract which was actually made was mutual. The writing made to evidence it does not express the mutual understanding. The contract was not one which complainant was compelled to make. It related to matter of mutual convenience and profit. Further than this we are unable to say that the restrictive clause in the contract was intended to restrain trade, or that such would be its effect.

The fact that the bill prays specifically for reformation, and not for rescission, of the contract is not, in view of the testimony, and in view of the prayer for general relief, material. The purpose of the bill is to remove — get rid of — the written evidence of the contract relied upon in the suit at law. If it does not state the real understanding of the parties, it ought not to be usable in any proceeding brought to enforce it, or in one brought for damages for its violation. It may be that in a particular case it should be annulled and canceled upon terms. In this case we find no ground for saying that the terms made by the court below are not sufficiently liberal to defendants. The testimony is rather convincing that defendants have suffered no damages; that although they received and joined in executing the written evidence of a contract favorable to themselves, which they had not in fact made, they did nothing, suffered nothing, in reliance upon it for which complainant should compensate them.

The decree of the court below is affirmed.

Montgomery, C. J., and Hooker, Moore, and Mc-Alyay, JJ., concurred.


text:
    DENNIS v. FIDELITY MUTUAL LIFE INSURANCE CO.
    1. Insurance — Defenses—Contracts—Execution.
    In an action on a life insurance policy which had never been delivered to the insured during his lifetime, and on which the first premium was not paid, the defense that the nonpayment of the premium was in violation of the express terms of the agreement, was not waived by a letter refusing to furnish blank proofs of loss on the ground that no delivery had been made and the first payment was not received by the company or its agent.
    2. Same — Life Insurance — Waiver.
    The consent of an agent for a life insurance company to accept a note for part of the first payment on a policy which was not delivered to the insured before his death, the note never having been executed, is not a waiver of the condition in the policy requiring full payment as a condition precedent.
    3. Same — Evidence—Exclusion and Admission of Testimony.
    It was not error to exclude from evidence testimony tending to show that the premium was charged by the defendant to its agent, that statements of the amount due had been mailed to the insured, that the agent had given a bond to secure the company and that the policy had been returned to the company, after an unauthorized delivery, by reason of threats.
    Error to Wayne; Brooke, J.
    Submitted December 13, 1909.
    (Docket No. 36.)
    Decided February 3, 1910.
    Assumpsit by Lizzie S. Dennis against the Fidelity Mutual Life Insurance Company on a policy of insurance. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Jonathan Palmer, Jr. (Elbridge E. Bacon, of counsel), for appellant.

      Lucking, Emmons & Helfman, for appellee.'
   Hooker, J.

Houghton was a solicitor for the defendant life insurance company. He solicited one Dennis to take a policy with said company, and in the course of the negotiations Dennis was informed that the payment of the first premium could be in cash, or half cash and note, as should be arranged when the policy should be delivered. He thereupon determined to apply for a policy, and signed a written application for a policy of $2,000. This application contains this agreement, viz.:

“ That the policy issued hereon shall not become binding on the company until the first payment due thereon shall have been actually received by the company or its authorized agent and the policy delivered to me during my lifetime and continued good health.”

It was dated January 19, 1906, and was sent to defendant’s home office, and a policy was executed and returned to the general agency in Detroit, and by a clerk in that office to Houghton, who was expected to collect the premium and deliver the policy. Upon the back of this policy was the following:

“ General Precedent Conditions. The application, copy of which is given on third page, forms the sole basis of this contract, which shall not be operative or binding until the actual payment of the initial premium, and delivery of the policy during the lifetime and good health of the insured.”

Houghton saw Dennis several times, and the latter made some promises to call and pay for the policy, which he did not keep. On the other hand, he called twice in Houghton’s absence to see about the matter, and on one of the occasions when' the parties met the policy was looked over, and considered. It seems that there had been a change in the statement of the applicant’s age as first stated from 57 to 58 years, which had the effect of increasing the rate from that contemplated by the parties. At all events the matter was not closed up by payment and delivery of the policy.

The plaintiff testified that Houghton called on February 26th about 9 a. m., showed the policy to her ready for delivery, and she told him that Mr. Dennis would settle with him in the afternoon, and take the policy. Houghton replied: “Very well, Mrs. Dennis; it will be all ready.” Dennis died the same morning, between 10 and 11 o’clock. Dr. Bailey was Dennis’ physician. He was informed of Dennis’ death by telephone, in the afternoon. Bross, a relative of the Dennis family, came to his office that afternoon, and Houghton was telephoned for. On his arrival Bross paid the premium to Houghton in cash, and the policy was delivered to Bailey, and he delivered it to Mrs. Dennis. Houghton testified that Bailey told him of the death of Dennis before any money was paid, and that the policy was delivered to Dr. Bailey or Bross, on the agreement that, if it was not right for Houghton to deliver it, they would get the policy and return it to Houghton, which was afterwards done, and the money was returned to Bross. This action was afterwards commenced, and the learned circuit judge directed a verdict for.the defendant, upon the ground that, under the contract consisting of the application and policy, and the. admitted fact that there was no payment of premium or delivery of the policy until after Dennis was dead, plaintiff could not recover. Assuming, but not deciding, that Houghton had authority to accept cash, part cash and part note, or note in full payment of the first premium, the admitted fact, remains that during the life of the applicant no payment of any kind was made or tendered, nor was the policy delivered to him, or any one for him. Under the express terms of both application and policy the latter was not to become binding or operative until the initial premium should be paid, and the policy delivered during the lifetime and continued good health of the applicant.

Counsel for plaintiff contend:

(1) That the defendant waived its right to insist on the nonperformance of this condition, by not basing its claim of nonliability on this ground in the letter of January 15, 1907. That letter was written in answer to a request for blank proofs of loss, made on behalf of the plaintiff. It is as follows:

“Mr. Jonathan Palmer, Jr.,
“ Moffat Building,
“ Detroit Mich.
My Dear Sir: Answering yours of the 10th inst., would say that while Mr. George M. Dennis made application to this company for a policy of insurance on his life, and the above-numbered policy was issued, such policy was never delivered to Mr. Dennis in his lifetime, and no payment whatever on account thereof was ever made by him. The application provided that the applicant expressly agreed ‘ that the policy issued hereon shall not become binding on the company until the first payment due thereon shall have been actually received by the company or its authorized agent, and the policy delivered to me during my lifetime and continued good health.’ The policy never having been delivered to Mr. Dennis or the first premium paid, there was no contract of insurance and Mrs. Dennis has no valid claim against this company by reason of the transaction, we therefore do not comply with your request to send you blank forms for making proof of death and presentation of a claim by her under the policy.
“Very truly yours,
“F. H. Calkins,
“ Sup’t Claim Dept.”

(2) The court erred in instructing the jury that:

“ I have permitted the plaintiff to put in testimony relating to the custom of settlement and the extension of time and so on, but I charge you that all that testimony becomes immaterial in view of the admitted facts that no settlement of any kind was made for this policy until five hours after the captain’s death.
“It is an unfortunate thing that the insured and his family permitted the matter to rest until it became too late to comply with the law in such a manner as to make this insurance available for his family, but under the admitted facts in the case, and there is no dispute about any of them that are material to the issue, I feel constrained to direct a verdict of no cause of action.”

(3) That the court erred in excluding evidence to show that when the policy was delivered to Houghton he was charged by the company with the amount of the premium.

(4) That the court erred in excluding an offer to show that Houghton gave a bond to the company to secure any indebtedness which he might owe it for moneys collected on policies, or on policies delivered to him for delivery to other parties.

(5) That the court erred in excluding an answer to the question put to Miss Hutchinson, “Why was it [the policy] returned ?”

Estoppel. We are of the opinion that the letter quoted clearly implied that the defendant relied on the defense afterward made.

Waiver of the Condition. This claim is based on an alleged agreement to give time on this premium; i. e., to take cash or note in settlement for the premium. There is nothing to show that any one expected that the policy would be delivered until it should be settled for in one of these ways, and there is no evidence that warrants the belief that anybody expected that the policy would be delivered or become binding, and that the agent Houghton would trust the assured for the premium without payment by cash or note and delivery of the policy. The fact that the applicant called at the insurance office ostensibly to make settlement by note for the policy, and, upon being informed that he could not do so without seeing Mr. Houghton, with whom his negotiations were pending, went away, indicates no waiver, nor was it such an offer of payment as to make the policy operative. He afterwards saw Houghton several times, who repeatedly asked him to settle, but he put him off for one reason or another. There is no evidence in the case justifying an inference that there was any agreement that the agent would deliver the policy until it was settled for, or that it should be operative meantime. Much authority is cited on the subject of a forfeiture that is inapplicable.

Exclusion of Testimony. Upon this record the rulings on the admission of testimony complained of cannot affect the result. Whether this premium was charged by the company against the agent or not, it conclusively appears that neither party expected delivery of the policy until settled for. The agent had a right to protect himself by a settlement before permitting the policy to become operative. Moreover, there is nothing that indicates that the statements alleged to have been mailed or sent to Houghton were more than memoranda of policies, sent to him for delivery, showing the amount of premiums upon them. The exclusion of proof that Houghton had given a bond to the company was proper, as that fact would not prove whether the company had accepted Houghton’s promise for the premium. Neither was it of any importance whether the policy was returned by reason of threats. The case would be no different had it not been surrendered; for, measured by the express terms of both application and policy, the delivery was not such a delivery as the contract required, and was a fraud on the insurance company by the parties obtaining and the agent permitting it.

Upon the undisputed proof in this cause there was no alternative but to direct a verdict for the defendant. Judgment affirmed.

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


author: Moore, J.

text:
    REESE v. DETROIT UNITED RAILWAY.
    1. Carriers — Street Railways — Negligence — Starting and Stopping Cars.
    That while plaintiff was proceeding from her seat in defendant’s car to the door, the conductor signaled for the car to start and the jerk threw and injured plaintiff, presents a question of fact for the jury in an action for negligent injuries.
    2. Evidence — Master and Servant — Hearsay—Admissions.
    No error is committed in such action by the admission of testimony as a part of the res gestee that the conductor stated he thought the plaintiff was off the car, where the conductor testified on direct and cross-examination as a witness for the defendant to the same fact.
    3. Trial — Argument oe Counsel.
    Incorrect statements of the law made by the plaintiff’s attorney in argument were cured by the prompt action of the trial judge.
    Error to Wayne; Mandell, J.
    Submitted December 13, 1909.
    (Docket No. 138.)
    Decided February 3, 1910.

      Case by Henrietta I. Reese against the Detroit United Railway for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Corliss, Leete & Joslyn (Benjamin 8. Pagel, of counsel), for appellant.

      Lucking, Emmons & Self man, for appellee.
   Moore, J.

The plaintiff recovered a judgment for injuries received by her while a passenger on one of the cars of defendant company. The case is brought here by writ of error.

The car on which plaintiff became a passenger had three entrances, one at the rear, one in the middle of the right-hand side, and the third at the front. The seats ran at right angles to the sides of the car so that passengers when seated faced the motorman. The aisle ran along the right-hand side from the rear to the front door. Mrs. Reese and her friends occupied a seat about opposite the middle door, with Mrs. Reese sitting at the end of the seat farthest from the door; her daughter sat at her right side and her friend Mrs. Claxton next to the daughter. Another woman occupied the remaining space of the seat. As the car proceeded down town, numerous passengers were picked up along the route, and by the time the car got to Broadway, the street on which plaintiff is alleged to have been injured, all the seats were occupied, and many people were standing in the aisle. The conductor gave the signal to stop and the car was brought to a standstill at the intersection of two streets. The conductor stood on the rear platform just outside the rear door. Several people alighted from the steps at the rear platform. The conductor looked along the outside of the car to the steps opposite the middle door and seeing no one on the steps or about to step from the aisle of the car, signaled the motorman to go ahead. The car was started immediately, and it is the claim of plaintiff that while she was still going toward the door to alight she was thrown forward and badly hurt, and that there was negligence on the part of the employés of defendant in starting the car before she had an opportunity to alight.

Appellant’s grounds for appeal are stated by counsel as follows:

“(1) That a verdict should have been directed in behalf of the defendant and appellant at the trial of the said cause.
“(2) If defendant’s negligence was a question for the jury, error was committed in allowing testimony to be introduced which was incompetent and immaterial.
“ (8) That error occurred in the charge of the court.
“ (4) That error occurred in the argument of counsel for plaintiff and appellee.”

We will take up these claims in the order presented.

Did the court err in declining to direct a verdict for defendant ? The conductor was a witness. He testified there were 40 to 60 passengers on the car.

“Q. Tell what took place.
“A. I got the signal, I got the signal to stop, and gave my motorman the bell to stop. I was standing on the back platform, right you may say in the doorway, so the passengers could go either side out of the door or in behind me on the platform. Three or four got off at the rear platform and I looked at the side door to see if anyone was getting off there. There was no one and I gave the bell to go ahead, and I don’t know whether a gentleman or lady hollered ‘ Wait a minuite,’ and I had not let loose of the bell rope, and I gave him a bell to stop, and he stopped, and then I walked right inside to see what was the trouble in there, and I would not say whether this lady "or that lady said to me, ‘ It is a wonder you would not wait until we get off,’ and I said, ‘ I supposed you were all off,’ and she said, ‘No,’ and I don’t know whether I made the remark about getting off or not, but some one said, ‘ Go ahead, we will goon down town.’
“Q. When you referred to getting off, to whom did you refer ?
“A. I was talking to those two ladies at the time, so it would practically be to them.
“Q. Did your car stop when you gave the signal to stop the second time ?
“A. It did.
“Q. How far had it gone between the two stops ?
“A. I would not imagine it had gone over six feet.”

On the cross-examination he testified, in part, as follows:

“Q. As I understand you, there is no dispute but what your car stopped at John R. street.
“A. It did.
“Q. You say some people got off the back platform ?
“A. They did.
“Q. You thought every one was off ?
“A. Yes, sir.
“Q. You looked along the outside of the car ?
“A. Yes, sir.
“Q. You did not look inside ?
“A. No, sir.
“Q. You supposed every one was off and you rang up for the motorman to go ahead ?
“A. Yes, sir.
“Q. And you discovered these people were not off ?
“A. I discovered by some one hollering, ‘Wait a minute.’
“Q. You looked inside the car ?
“A. Yes, sir.
Q. You could see them there ?
“A. Yes, sir.
“Q. See this lady standing up by the door ?
“A. Yes, sir.
“Q. You say the plaintiff was thrown back in the seat ?
“A. I don’t know whether she was thrown back.
“Q. She was back there when you got there ?
“A. When I got there she was there.
“Q. There is no doubt about any of these facts in any way ?
“A. No, not exactly.”

There was other testimony to the effect that when the car was stopped plaintiff at once arose and started toward the door; that while she was standing and awaiting her turn to step down upon the steps the car was suddenly started and she was thrown forward and hurt. This state of facts presented a case for the jury. See Finn v. Railway Co., 86 Mich. 74 (48 N. W. 696); Kirchner v. Railway, 91 Mich. 400 (51 N. W. 1059); Selby v. Railway, 141 Mich. 112 (104 N. W. 376); Burke v. Electric Co., 147 Mich. 172 (110 N. W. 524); Hazen v. Electric Co., 152 Mich. 457 (116 N. W. 364); Beattie v. Railway, 158 Mich. 243 (122 N. W. 557).

Did the court err in the admission of testimony ? This assignment is based upon the admission of testimony that the conductor stated he “ thought they were off.” It is said these were declarations concerning past events by an agent who has no authority to speak for his principal. There are two answers to the objection, first, the conductor, a witness for the defendant, testified both on his direct and on his cross examination to the same thing, and second, because the statement was made during the happening of the event and was part of the res gestee. Ensley v. Railway, 134 Mich. 195 (96 N. W. 34); Plefka v. Railway, 155 Mich. 53 (118 N. W. 731).

Did the court err in its charge ? The court gave all of defendant’s requests to charge except:

“ (4) The only evidence before you as to the action of the conductor is his own testimony, and if you believe his statement, plaintiff-is not entitled to recover.
“ (5) In weighing the testimony of the conductor, you should consider it without any prejudice one way or the other.”

The fourth request was not according to the fact. As to the fifth request the jury were charged as follows:

“You sit here as judges of the facts, and as judges of the facts you must not put yourself in the place of either the plaintiff or the defendant, because, if you do, you bring into play a kind of sympathy either for the plaintiff or the defendant. You are to sit here in the solemn capacity of judges, absoluely free from any bias or prejudice or sympathy or any like human emotion, sit here calmly and judicially and determine first what the facts are and then determine from those facts the things I have instructed you you must determine, what things can properly and reasonably be inferred from the facts that have been adduced here from the witness stand. Your endeavor in the jury'room should be to arrive at a just, and honest, and fair verdict under the evidence in this case, and you should be actuated by no other motive.”

There was no reversible error in the charge.

Argument of Counsel. It is said counsel erred in stating to the jury what the law is, and what the court will charge. As far as any error was committed in this respect, the mischief, if any, was immediately cured by the trial judge. It is said counsel erred in his argument to the jury as to the amount of damages it should give plaintiff. It was the claim of plaintiff that the results of the injury were very grave, making her a cripple for life. There was testimony in support of her claim. We think in this part of the argument nothing was said by counsel which calls for a reversal of the case.

Judgment is affirmed.

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


author: Blair, J.

text:
    HULAN v. WAYNE CIRCUIT JUDGE.
    1. Injunction— Mandamus — Enjoining Enforcement of Judgment at Law.
    In a suit to enjoin the enforcement of a judgment in proceedings at law for the possession of land, an order of the circuit judge, after hearing the cause on the merits, providing that the preliminary injunction be dissolved, and unless complainant secure the defendant for the rental value of the premises pending her appeal from a decree dismissing the bill, in addition to the statutory appeal bond, the judgment at law should be enforced, is a discretionary matter which will not be reversed on mandamus.

      3. Same — Dissolution.
    The dissolution of a preliminary injunction is largely within the discretion of the circuit judge.
    3. Same.
    A preliminary injunction which has been dissolved on the coming in of defendant’s answer upon motion, or upon the final hearing, is not revived by the appeal.
    4. Same — Appeal and Error.
    After such dissolution, if the complainant who has appealed have just cause for apprehension, he may apply to the Supreme Court for an injunction to preserve the status quo.

    5. Same — Effect of Injunction upon Judgment at Law.
    An injunction staying proceedings at law in a pending case does not affect the validity of the judgment therein, obtained in disobedience of the injunction.
    6. Same — Appeal and Error — Stay of Proceedings.
    Where a conditional order is entered permitting the execution of the judgment at law, the appellee must comply with the condition or rely on such protection as is afforded by the appeal bond, which does not continue the protection afforded by the preliminary injunction.
    Mandamus by Anna Stella Huían to compel James O. Murfin, circuit judge of Wayne county, to vacate certain provisions in an order granting an appeal.
    Submitted December 14, 1909.
    (Calendar No. 23,732.)
    Writ denied February 3, 1910.

      E. A. Fink, for relator.

      Denton Guinness (Robert M. Brownson, of counsel), for respondent.
   Blair, J.

On the 11th day of June, 1909, respondent directed a verdict against relator, and in favor of the holders of the record title to certain lands, as grantees of her father, in summary proceedings to recover the possession of said lands, of which relator claimed to be the equitable owner by virtue of an oral agreement with her father. On the 24th day of June, relator filed her bill of complaint for the enforcement of the alleged oral agreement, praying, among other things, that the deed from her father, and the judgment at law in favor of the grantees therein, be vacated, and that a temporary injunction issue to stay proceedings under said judgment. Relator having filed a bond in the penal sum of $500; a temporary injunction was issued. After the hearing of the case, and on the 25th day of October, 1909, respondent entered a decree dismissing the bill of complaint and dissolving the injunction. Thereupon relator obtained a stay of proceedings for 20 days, and the court fixed the penalty of the bond on appeal from said decree at the sum of $300. Relator having presented an appeal bond for approval, and the defendants having presented an. application for a writ of possession to enforce their judgment at law, respondent entered an order approving said appeal bond, and further providing:

“ That the application for the issuance of a writ of possession in the law case referred to in said complainant’s bill of complaint be and the same is hereby granted, unless said complainant shall, within two days from the date hereof, file a good and sufficient bond, conditioned for the payment of $45 per month, as stipulated damages, during her occupancy of the premises referred to in said complainant’s bill of complaint, and during the pendency of her appeal, providing said complainant should not prevail in said appeal.”

Thereupon relator—

“ Made and presented to the court a motion for the vacation of that part of the order of the court above quoted, at the same time filing a claim of appeal to this court from said decree, and also tendering said appeal bond of $300, and moving the court thereupon for a supersedeas or stay order, which, pending the appeal, should stay all proceedings, including the issuance of said writ of possession, at the same time also offering to put in an appeal bond or stay bond in such sum or penalty as the court might designate, to take the place of said $300 appeal bond, if upon reconsideration the court deemed the penalty of $300 insufficient, and requesting the court, if he so considered, to name such sum or penalty as he should require for that purpose.”

Respondent’s return, among other things, contains the following:

“ Respondent further submits that in my opinion, where a bill seeking to enjoin proceedings at law has been dismissed after a hearing, the continuance of the temporary injunction contrary to the provisions of the final decree is entirely a matter of discretion, and can only be done on such terms as in the opinion of the court shall be deemed just to all parties. In this case, having tried the lawsuit and the chancery case, I am convinced the complainant is not entitled to relief. However, she is still in possession, and is a person of no financial responsibility. If she desires to continue in a position to which she is not' entitled, the defendants should be amply compensated. For these reasons I feel that if the proceedings on the lawsuit are to be further enjoined, she should furnish, in addition to the appeal bond, a special statutory bond staying the proceedings on the lawsuit as already ordered.”

An order has been issued out of this court requiring the respondent to show cause why that portion of his order relating to the stay bond above quoted should not be vacated, and why he should not approve the bond tendered, or, if he considers the penalty insufficient, fix a reasonable penalty, with conditions as prescribed by the statute. Act No. 299, Pub. Acts 1909.

Counsel for relator contend that the effect of compliance with the provisions of sections 4 and 6 of said Act No. 299, is to bring the case into the Supreme Court in its entirety, and to stay all proceedings during the pendency of the appeal, citing Wilkinson v. Dunkley-Williams Co., 141 Mich. 409 (104 N. W. 772). Second, that the statute prescribes the condition of the bond to stay proceedings, and no different condition can be required. The defendants are not taking or contemplating any proceedings under the decree appealed from, but under their judgment at law; the temporary injunction which restrained them from taking such proceedings having been dissolved. So far as the legal aspect of the case is concerned, the rights of the parties are no different than though the preliminary injunction had been dissolved upon motion of defendants prior to the final decree. The dissolution of a preliminary injunction is largely within the discretion of the circuit court. Grand Rapids Electric R. Co. v. Calhoun Circuit Judge, 156 Mich. 419 (120 N. W. 1004). A preliminary injunction, which has been dissolved on the coming in of defendant’s answer upon motion or upon the final hearing, is not revived by the appeal. Brevoort v. City of Detroit, 24 Mich. 322. If complainant has just cause for apprehension, he can apply to this court after appeal for an injunction to preserve the status quo. Hitchcock v. Wayne Circuit Judge, 144 Mich. 362 (107 N. W. 1123). An injunction staying proceedings at law in a pending case does not affect the jurisdiction of the law court, nor affect the validity of the judgment therein obtained in disobedience of the injunction. Geddis v. Wayne Circuit Judge, 151 Mich. 122 (114 N. W. 874).

We are also of the opinion that the judge before whom "both cases were tried, upon dismissing the bill of complaint and dissolving the injunction, may grant an order for the execution of the judgment in the suit at law; and, if such order is conditional, the appellant must comply with it, or rely upon such protection as is afforded by the statutory bond, which does not continue the protection afforded by the injunction previous to its dissolution. Hovey v. McDonald, 109 U. S. 150 (3 Sup. Ct. 136); Knox County v. Harshman, 132 U. S. 14 (10 Sup. Ct. 8); 2 High on Injunctions (3d Ed.), § 1709; Wilkinson v. Dunkley-Williams Co., 141 Mich. 409 (104 N. W. 772).

The application for the writ of mandamus is denied.

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


author: Brooke, J.

text:
    BOUCHA v. ALGER CIRCUIT JUDGE.
    1. Quo Warranto — Pleading—Petition—Public Officers.
    A petition for leave to file an information in the nature of a quo warranto against a township supervisor should be sufficiently clear and definite as to facts to make out a clear case of right, and should not state conclusions.

      2. Same — Discretion of Court.
    The granting or withholding leave to file an information in the nature of a quo warranto is discretionary.
    3. Same.
    The law requires a precise and positive showing before the appellate court will interfere in such proceeding.
    Mandamus by Ezra J. Boucha to compel Joseph H. Steerei circuit judge of Alger county, to vacate an order denying a petition to file an information in quo warranto proceedings.
    Submitted December 14, 1909.
    (Calendar No. 23,637.)
    Writ denied February 3, 1910.

      B. B. Stewart, for relator.

      H. B. Freeman, for respondent.
   Brooke, J.

At the April, 1909, election, relator was a candidate for the office of supervisor of the township of Munising, Alger county. His opponent for said office, at said election, one Marcus A. Doty, was declared elected. Relator thereupon filed his petition in the circuit court for Alger county, praying for leave to file an information in the nature of quo warranto against said Doty to test his title to said office. The circuit court denied relator’s prayer. He now asks this court for a writ of mandamus, commanding the circuit judge to grant the prayer of his petition.

Relator’s petition was in part as follows:

“He shows that there were eleven votes cast for your petitioner that were legal votes which were not counted by said election board for the alleged reason that said ballots contained distinguishing marks, when in fact said ballots did not contain distinguishing marks, the real reason being, that a majority of said election board were opposed to the election of your petitioner, and illegally refused to count said eleven ballots. He shows that said election board counted between one and ten ballots for said Marcus A. Doty that have distinguishing marks and were illegal ballots and should not have been counted.”

We are of opinion that in holding that the relator, by his petition and affidavits in support thereof, failed to make a showing “sufficiently clear and definite as to facts, to make out a prima facie case” the learned circuit judge was clearly right.

It is apparent that relator swears to a conclusion only, and his affidavits are no stronger than his petition. The application should be so clear and positive in its statement of facts as to make out a clear case of right; and should be so framed as to sustain a charge of perjury if any material allegation is false. Cain v. Brown, 111 Mich. 657 (70 N. W. 337). The granting or withholding leave to file an information in the nature of a quo warranto is discretionary. People v. Tisdale, 1 Doug. (Mich.) 59; Attorney General v. Railroad Co., 55 Mich. 15 (20 N. W. 696). The law requires a precise and positive showing before the court will interfere in such a proceeding. Vrooman v. Michie, 69 Mich. 42 (36 N. W. 749); Cain v. Brown, supra.

The writ is denied, with costs.

Montgomery, C. J., and Ostrander and Hooker,. JJ., concurred with Brooke, J. Blair, J., concurred in the result.


text:
    ALLEN v. WAYNE CIRCUIT JUDGE.
    1. Injunction — Pleading—Equity Practice.
    Averments on information and belief in a bill to obtain an injunction do not justify the issuance of a preliminary writ.
    2. Same — Order to Show Cause.
    Such averments are sufficient to obtain an order to show cause and would justify the temporary injunction if supported by proper evidence.
    3. Same — Parties—Preliminary Injunction.
    The omission of a necessary party to a suit for an injunction to restrain a municipality from constructing a fire department building on lots which were sold subject to a plan restricting buildings on the street to residences will not prevent the issuance of a temporary injunction.
    4. Same — Municipal Corporations — Public Buildings — Real Property — Eminent Domain.
    Such restrictions are binding upon a municipality as well as an individual, and the rights so obtained by adjoining purchasers must be acquired by purchase or condemnation before a lot subject to such restrictions may be used in violation, of their terms.
    5. Same — Mandamus—Showing for Temporary Writ.
    Mandamus will not lie to compel the issuance of a temporary injunction on a bill sworn to on information and belief, unsupported by positive testimony.
    Mandamus by Mark W. Allen and others to compel James O. Murfin, circuit judge of Wayne county, to vacate an order denying a writ of injunction.
    Submitted December 14, 1909.
    (Calendar No. 23,723.)
    Writ denied February 3, 1910.

      Arthur J. Lacy and Lucking, Emmons & Self man, for relators.

      P. J. M. Hally, for respondent.
   Hooker, J.

The bill alleges or attempts to allege that one Hoyt Post, being the owner of 10 lots on Hurlbut avenue in the city of Detroit, announced and advertised the sale of said lots subject to a plan to make said avenue a residence street, with certain restrictions, and that thereby, and by certain valid contracts, which he made to persons who purchased in reliance upon said publication and plan, he subjected all of said lots to its restrictions. The complainants, who profess to be the owners of some of said lots, claiming the right to the performance of said contracts, filed the bill to restrain the city of Detroit from erecting a fire department building on certain of said lots, which the city had purchased or contracted for from Post. A temporary injunction was refused by the circuit judge, and we are asked to compel him by mandamus to allow such writ.

Inasmuch as no demurrer nor answer has been filed, and as the sufficiency of the allegations of the bill do not appear to have been questioned, we shall assume, but not decide, that it states a sufficient contract as against a private person and in favor of these complainants. As the same was based upon information and belief, it alone would not have justified the allowance of the writ. See Manistique Lumbering Co. v. Lovejoy, 55 Mich. 189 (20 N. W. 899); Henderson v. Reynolds, 11 L. R. A. (N. S.) 960 (168 Ind. 522, 81 N. E. 494), and cases cited. But on an order to show cause it was sufficient had it been supported by proper evidence. Again, the fact that Mr. Post was not made a party was unimportant, and should not have prevented the issue of the writ. If a necessary party, he could have been brought in later. Moreover, the bill may be amendable in both respects.

The respondent refused to hear proofs upon the further ground that a building restriction could not be enforced against a city, which sought in the exercise of its police power to erect and maintain for the public safety a fire department station on the property. We are satisfied that a valid building restriction may be binding upon a city as well as an individual, and, before it can use a lot charged with such restriction for a purpose prohibited by the restriction, it must obtain by purchase or condemnation, the title of all owners of any interest therein, and, when it has not done so, equity may properly intervene to preserve the status quo until such interests are acquired, provided the pleading and the evidence supporting the application show a reasonable probability of the validity and justice of complainants’ claim. As the bill was verified on information and belief, and there was no proof taken, we cannot issue a mandamus to compel the allowance of an injunction. It will be without prejudice to another application, however, if counsel have confidence that they can allege and prove a valid contract binding upon and enforceable against the city in favor of the complainants, all of which questions will be open on such an application, though not necessarily determined finally thereon.

Writ denied.

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


text:
    PRICE v. KENT CIRCUIT JUDGE.
    Mandamus — Husband and Wipe — Division op Property — Divorce — Appeal and Error.
    An order in divorce proceedings awarding to the wife possession of certain furniture will not be set aside in mandamus when it does not appear tobe unjust and the legal right to the possession under the order is reviewable on appeal, as from a final order.

      Mandamus by W. Claude Price to compel Willis B. Perkins, circuit judge of Kent county, to vacate an order granting a temporary injunction.
    Submitted December 14, 1909.
    (Calendar No. 23,447.)
    Writ denied February 3, 1910.

      Colin P. Campbell, for relator.

      Dunham & Phelps, for respondent.
   Hooker, J.

The relator’s wife filed a bill for divorce against him, and while living in a house rented and furnished by him she obtained an order for the payment of $5 per week for the maintenance of herself and child. He was enjoined from selling the furniture. Subsequently the wife secured other apartments, and moved or attempted to move the furniture, some of which belonged to the husband, to such place. The court afterwards modified the injunction, and then the parties attempted to adjust the matter as to the furniture, but, failing in this, relator’s solicitor prepared an order for the modification of the injunction, and secured the signature of the judge thereto. The brief for relator states that subsequently an order was made setting aside said former order and ordering substantially all of the furniture back into the hands of the wife, and relator asks that this order be set aside on the ground that the husband and not the wife “has the right to the possession of the personal property which has been used by himself and wife in and'about their housekeeping operation’s after their separation.” The last order made recites that the former order was made under a mistake of fact, and states that the furniture, being in a house rented by defendant (relator) prior to the separation, was removed to rooms afterwards rented by complainant, and that such furniture was necessary to her use; some of it being her own property. We are disinclined to interfere in this matter, as there is nothing to indicate that the order complained of is not just; and we may well deny the writ when it is not required to be issued in furtherance of justice.

Again, if the relator has an absolute legal right to the possession of this property, notwithstanding the provisions of 3 Comp. Laws, § 8686, which seem to authorize the courts to make such orders as that complained of, it would seem to be a final order, reviewable on appeal, as are orders giving receivers possession of individual property pendente lite, and therefore not to call for interference by mandamus. We have not overlooked the case of Johnson v. Johnson, 125 Mich. 671 (85 N. W. 94), which involved no order of the court of chancery.

The writ is denied, with costs.

Moore, McAlvay, Brooke, and Blair, JJ., concurred.