author: McAlvay, 0. J.

text:
    TALCOTT v. FREEDMAN.
    1. Sales — Contract—Modification.
    Where a contract for the sale of goods is entered into by means of an order for the same and an unconditional acceptance thereof, subsequent correspondence between the parties concerning payment, and relative to the buyer’s credit, no agreement being reached, is ineffectual to modify the contract so as to relieve the seller of the duty of shipping all the goods as agreed.
    2. Same — Construction—Question of Law.
    The construction of letters depended upon to modify a contract is a question of law for the court and it is error to submit the same to the jury.
    3. Same — Failure to Perform — Damages.
    The measure of damages for failure to supply goods procurable in the open market is the additional cost to the buyer; but, if the goods are not obtainable, the buyer is entitled to recover the profits lost through the fault of the seller.
    4. Same — Evidence—Admissibility.
    In an action for damages for failure to supply goods as agreed, the buyer is entitled to show what efforts he made to procure the goods in the open market, by correspondence and other- . wise.
    5. Same — Instructions.
    In an action for damages for failure to supply goods as agreed, evidence as to a fire which occurred in the buyer’s store several months after the transaction is immaterial, and it is erroneous and prejudicial for the court to refer to it in the charge as an “important factor” in the termination of the buyer’s business.
    Error to Wayne; Donovan, J.
    Submitted February 18, 1907.
    (Docket No. 14.)
    Decided October 4, 1907.
    Assumpsit by James Talcott against Louis Freedman, Ephraim M. Love, David R. Love, Harry Love, and Henry Rosenthal, copartners as Freedman, Love & Cornpany, for goods sold and delivered. There was judgment for plaintiff, and defendants bring error.
    Reversed.

      Sloman & Sloman, for appellants.

      Bowen, Douglas, WTiiting & Murfin, for appellee.
   McAlvay, 0. J.

Plaintiff sued defendants, copartners, for certain goods sold and delivered under a contract which was entered into between the parties contained in certain letters introduced in evidence. This is the second time the case has been before this court. On the first trial a verdict was directed by the trial judge against defendants on the ground that no contract was shown between the parties which would authorize recoupment. The judgment entered upon such verdict was reversed, and a new trial ordered. 140 Mich. 38.

Upon the second trial it was claimed that the correspondence showed that a change was made in the contract entered into, which relieved plaintiff from delivering the entire amount of goods purchased. The facts in the case and all the letters relied upon are found in the former decision of the court, to which reference is had. In that decision it was held that a contract existed between the parties, for a breach of which damages might be recovered. See former opinion and cases cited.

The claim of plaintiff that a change had been made in this contract by the letters dated November 88, November 86, November 88, and December 8, 1908, is not tenable. The most that can be said of the letter from plaintiff of the date of November 88d, is that it was a proposition to change the agreement, and the answer of defendants dated November 86th, was a counter proposition. No change was agreed upon between the parties. The question of the construction of these writings was a question of law for the court. The court erred in submitting the question to the jury. The only question for the jury to determine in the case was the question of the damages, if any, sustained by defendants, on account of the failure of plaintiff to deliver the balance of the goods purchased.

In the former opinion the court indicated that the correct rule for the measure of damages in this case, was that laid down in the case of F. W. Kavanaugh Manfg. Co. v. Rosen, 132 Mich., at page 48. In that case the court said:

“ The rule of damages in case they were able to procure the goods in the open market would be the additional cost to them; but, if the goods were not obtainable, defendants would be entitled to recover the profits lost through the fault of plaintiff.” Citing Den Bleyker v. Gaston, 97 Mich. 354.

The court should have so charged upon the question of damages. The charge as given was erroneous.

Defendants were entitled to show what efforts they made to procure these goods in the open market, whether by correspondence or otherwise, and the court was in error in excluding evidence tending to show that fact.

The contract is silent as to the place of delivery of the goods. Upon the record before us the question is immaterial. Plaintiff, upon demand, refused to deliver the balance of the order, and defendants’proof tended to show that the goods could not be obtained on the open market. The evidence as to the fire which occurred in defendants’ store several months after this transaction was wholly immaterial and the court so held. Reference to it in the charge, as an “important factor” in the termination of defendants’ business was erroneous and prejudicial.

The judgment is reversed, and a new trial granted.

Carpenter, Ostrander, Hooker, and Moore, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, C. J.

license: Public Domain

text:
    PEOPLE v. WOLVERINE MANUFACTURING CO.
    Judges — Disqualification—Motion for Change — Discretion.
    On certiorari to review a judgment of the recorder’s court of Detroit, the error relied upon was the denial of a motion that the presiding judge assign the cause for trial before another judge of that court or before one of the circuit judges, on account of his bias, prejudice, and interest. The movant relied entirely upon a newspaper article purporting to be based upon an interview with the judge, but there was no proof that the statements in the article were actually made, and the judge in denying the motion said he was not prejudiced, and nothing occurred at the trial indicative of prejudice. Held, that no abuse of discretion was shown.
    Certiorari to the recorder’s court of Detroit; Phelan, J.
    Submitted April 8, 1907.
    (Docket No. 26.)
    Decided October 4, 1907.
    The Wolverine Manufacturing Company and the Cadillac Cabinet Company were convicted of obstructing a street, and sentenced to pay a fine of $25.
    Affirmed.

      Keena, Lightner & Oxtoby, for appellants.

      Denton Guinness, for the people.
   McAlvay, C. J.

Defendants, Michigan corporations, were complained against early in 1904 and charged with the obstruction and incumbrance of Thirteenth street (later called Vermont avenue), in the City of Detroit, on May 17, 1904, by placing a fence across said street, putting buildings, brick and other material therein, thereby entirely closing said street to the public from Stanley street to the railroad, contrary to the provisions of section 1, chap, 55, p. 154, revised ordinances of said city of 1895.

The case was first tried in the recorder’s court before Judge Phelan, associate recorder, on June 23, 1904, and respondents were found guilty and fined $25. The case was removed to this court on certiorari, reversed, and a new trial granted. 141 Mich. 455. The second trial was had before the same court and judge on December 26 and 27, 1905. Upon this trial, before a jury was called, respondents made and filed the following motions and plea:

1. A motion to cite a certain reporter to show cause why he should not be punished for contempt for publishing a certain alleged interview with the judge relative to this case.

2. A motion that the presiding judge assign the cause for trial before another judge of that court or before one of the circuit judges, on account of his bias, prejudice and interest.

8. A plea puis darrien continuance, setting up that the proceedings were barred by the vacation of this portion of Thirteenth street, December 5, 1905, by a decree of the Wayne circuit court.

The court took the first motion under advisement, denied the second, and also took the plea under consideration. Thereupon counsel for respondents excepted to the rulings of the court and withdrew from the case and took no further part in it. The case then proceeded to trial. A jury was regularly and duly selected, which, after hearing the evidence and the charge of the court, returned a verdict of guilty against respondents. The judgment of the court was a fine of $25 and costs amounting to $20. The case is again here upon writ of certiorari.

Before discussing the error respondents rely upon, it will be well to state a few facts appearing in the record, which probably account for the disagreement between the judge and counsel for respondents. On November 2, 1905, after the case had been decided in this court, respondents filed a bill of complaint in the Wayne circuit court, in chancery, against the city of Detroit, the corporation counsel, and the complainant in this case, asking for an injunction restraining them from proceeding in the recorder’s court with the new trial of this case which had been granted by this court. The injunction was granted by Judge Donovan. On the same day the owners of the plat which includes that portion of this street in controversy, filed in the same court a petition to vacate a part thereof. On December 5, 1905, a decree was signed by Judge Donovan granting said petition, and vacating a part of said plat, which included the portion of the street in this suit where the same was charged to be obstructed by respondents. The newspaper article relied upon to show the bias, prejudice, and interest of the trial judge was printed in the Detroit News, December 20, 1905.

The only one of the errors assigned which is discussed before us in the brief for counsel for respondents, relates to the disqualification of the judge to preside at the trial of the case. The ground for this motion is the affidavit of counsel for respondents who' relies entirely upon the contents of the newspaper article of December 20th above referred to. There is no proof that the statements therein contained were actually made. From the article it appears that a controversy had arisen on account of the injunction issued restraining the municipality and its officers from going on with the new trial ordered in the case. Apparently it was intended to delay the prosecution of this case until the decree in the Wayne circuit court could be obtained vacating this street.

The questions which were sought to be raised in this case by the plea puis darrien continuance based upon the decree vacating the plat are not urged in this court. Whatever Judge Phelan may have said under provocation, in regard to those proceedings, is immaterial.

Under the statute, if he had desired, the judge might have requested a circuit judge or an associate justice of this court to preside. This was a matter of judicial discretion with him. Our attention is not called to any statute which provides for a change of venue from the recorder’s court, nor is there any provision requiring the judges he might request to preside to comply with such, request.

It remains to be determined, then, whether, in proceeding to try the case, the court was guilty of an abuse of judicial discretion. • In his opinion in ruling upon this matter the court said:

“ I desire to state further to the counsel that this court is not prejudiced; that the law has been passed upon, and the question of fact, the question of user or nonuser is a question for the jury; and the court is not biased, the court is not prejudiced either against counsel or his clients.”

Nothing which occurred later during the trial is pointed out as indicative of the disqualification of the trial judge. The court in overruling the motion asking for a trial before another judge held that no sufficient showing had been made, and that no necessity demanded such action. In so holding and proceeding to try the case he was not guilty of an abuse of his judicial discretion.

The conviction is affirmed.

Carpenter, Grant, Blair, and Ostrander, JJ. concurred.


text:
    BENSON v. BAWDEN.
    1. Contracts — Illegality—Purchase of Official Influence.
    A contract by a postmaster of a post office of the third class, by which he agrees to remove the post office to a certain building and maintain it there during his term of office, in consideration of certain office fixtures, is illegal, as against public policy.
    2. Same — Parties in Pari Delicto.
    The law will not aid either party to an illegal agreement, but will leave them where it finds them.
    3. Same — Assignee of Illegal Contract.
    The assignee of a party to an illegal contract cannot recover back property parted with by his assignor under the contract.
    4. Appeal and Error — Questions Considered — Question not Raised Below.
    In an action by the assignee of a party to an illegal contract to recover back property parted with under the contract, a claim in this court, not made below, that the sale of the property to him was a rescission of the contract, will not be considered.
    5. Same — Wrong Reason for Correct Decision.
    Where plaintiff in trover cannot exhibit his case without presenting an illegal contract, as to which the parties are in pari delicto, a judgment for defendant will not be reversed, though the verdict was directed for defendant on the ground that, under the contract, he had title to the property.
    Error to Gogebic; Shepard, J., presiding.
    Submitted April 10, 1907.
    (Docket No. 44.)
    Decided October 4, 1907.
    Trover by Signa M. Benson against Richard J. Bawden, Jr. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      G. F. Button, for appellant.

      Herb M. Norris, for appellee.
   McAlvay, C. J.

This is an action in trover brought by plaintiff to recover the value of certain chattels, being post-office furniture and fixtures. There appear to be no disputed facts in the case. In 1897 defendant had been appointed postmaster for the city of Bessemer by the proper authorities of the Federal government. This post office was one of the third class. Under defendant’s predecessor, Levi S. Rice, it had been kept in what was known as the Bersbach block. Plaintiff’s assignor, K. S. Markstrum Company, a corporation, desired to have this post office removed and located in the Picken building, in the city of Bessemer, near which it was conducting a general merchandise store. This company on July 30, 1897, purchased the property in dispute from Mr. Rice, the retiring postmaster, who, under its instruction, delivered the same to defendant. On the same date these chattels had been transferred to defendant by plaintiff’s assignor under the following agreement:

“Bessemer, Mich., July 30th, 1897.

“ This is to certify that for and in consideration of one dollar to me in hand paid, as agent and manager for the K. S. Markstrum Co., a corporation, I have this day .sold and transferred to R. J. Bawden, Jr., all fixtures, paraphernalia, now belonging to and part of the post-office outfit of the Bessemer post office, and now in my custody and possession.

“ The condition of this .sale being as follows:

“The said R. J. Bawden, Jr., having been appointed postmaster of the city of Bessemer, State of Michigan, agrees and binds himself to remove the said post office to the building on Mary street and to the room formerly occupied as post office in the John Picken building, on said street, and to continue the maintenance, location and occupancy of said room in the said John Picken building as the post-office quarters for said city, for the term of four years from the first day of July, 1897, and to maintain said fixtures, for such post-office purposes, in as good condition as they now are, reasonable and unavoidable wear and tear excepted; when each and all of these conditions are fulfilled, and all here stipulated obligations complied with, said post-office fixtures become the unconditional property of the said R. J. Bawden, Jr., but otherwise they are and remain the property and purtenances of the said. K. S. Markstrum Company, and be taken possession of by them any time the conditions as above agreed to are violated or denied.

“It is understood and agreed that if the said R. J. Bawden, Jr., should, by reason of change in the administration at Washington, or from any other cause not justly chargeable to his own negligence or misconduct, be removed from said postmastership before the four years as here stated expire, then such failure to keep said office the stipulated four years will cause no failure in his right and title to said fixtures.

“K. S. Markstrum Co.,

“By K. S. Markstrum, Agent. “R. J. Bawden, Jr.”

The post office was removed to the John Picken building and there maintained by defendant for the term of more than four years after July 1, 1897. Plaintiff derives title by sale from K. S. Markstrum Co., January 5, 1900. Demand for delivery of the property was made for her January 5, 1903, upon defendant who was in possession of it using it as postmaster.

The court at the request of defendant directed a verdict of not guilty, as follows:

“ I charge you as a matter of law that it appears from the testimony, undisputed, that defendant in this case has purchased the property in dispute, and that it was his at the date of the alleged conversion. You will retire to your room and bring in a verdict of not guilty.”

■It is insisted that the court erred:

1. In admitting the contract in evidence.

%. In directing a verdict for defendant.

The objection to the admission of the contract was that it was against public policy and void on its face, and therefore incompetent. This postmaster had received property claimed now to be of the value of $800, for the sole purpose of securing the location of the post office at a certain place desired by plaintiff’s assignor, and entered into an agreement in writing that he would do so, and maintain the office there for four years. In case of a removal of a post office the Federal postal laws and regulations provide for an application to be made to the proper officer and division wherein “the postmaster must state * * * the distance and direction of the proposed site from the one occupied; whether such change is satisfactory to the patrons of his office, and whether the cost of transportation of the mails will be increased.” Postal Laws and Regulations (1902), § 267, subd. 2. The postmaster must exercise his official judgment. He should be disinterested. That he may be hired to act in the interest of any individual is shocking to a decent sense of propriety.

No comment is necessary on our part to emphasize the fact that this agreement cannot be defended upon any theory. The plaintiff claims that such trafficking in official influence cannot be tolerated, and that an affirmance of the judgment would give all the postmasters in Michigan, in locating office sites, license to sell their official influence to the highest bidder. Defendant urges that if the contract was illegal the parties are in pari delicto and no recovery can be had. The court is able without difficulty to agree with both parties as to the illegality and viciousness of this transaction; but the regulation and supervision of such matters is for the consideration of the Federal authorities. It is well settled that the law will not aid either party to an illegal agreement. It leaves the parties where it finds them. Neither a court of law or equity will aid the one in enforcing it, or give damages for the breach of it, or set it aside at the suit of the other, or, when the agreement has been executed in whole or in part by the payment of money or the transfer of other property, lend its aid to recover it back. 9 Cyc. p. 546 et seq., and cases cited; Walhier v. Weber, 142 Mich., and cases cited on p. 325.

By this suit plaintiff is in effect asking the aid of the court to recover back property parted with under an illegal agreement. She is in no better position than her assignor and in asking-the court for the value of the property claimed to have been converted is unable to exhibit her case without presenting to the court the question of the illegality of this contract. It was no error for the court to admit the contract in evidence. Walhier v. Weber, 142 Mich. 322.

The claim of plaintiff that the sale to her by the K. S. Markstrum Co. was a rescission of this contract will not be considered, as it appears to be raised for the first time in this court.

These parties are equally in the wrong and the court will leave them where it finds them. The trial court in directing a verdict for defendant was not in error, although he gave a wrong reason for such action. The result was correct.

The judgment is affirmed.

Carpenter, Grant, Blair, and Ostrander, JJ., concurred.


text:
    DETROIT LEATHER SPECIALTY CO. v. MICHIGAN CENTRAL RAILROAD CO.
    Eminent Domain — Railroads — Necessity of Compensation— Private Way.
    By the term “private way,” used in section 6234, 2 Comp. Laws, is meant all private ways, however created, and not merely roads laid out as private roads under statutory provisions; and where a deed conveying land contains also a grant of “right of way for all purposes for which a public alley can be used, over a strip of land ” adjoining the land conveyed, a railroad company purchasing the strip with full notice of the prior grantee’s rights cannot build a track along the strip without first compensating such grantee.

      Appeal from Wayne; Rohnert, J.
    Submitted April 12, 1907.
    (Docket No. 72.)
    Decided October 4, 1907.
    Bill by the Detroit Leather Specialty Company against the Michigan Central Railroad Company and others to restrain an encroachment upon a private right of way. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Bethune Duffield, for complainant.

      N. E. Slaymaher and Gray & Gray, for defendants.
   McAlvay, C. J.

Complainant, a Michigan corporation, purchased from George L. Beecher, December 15, 1900, a certain part of an unplatted portion of what was known as the Brevoort farm in the city of Detroit, described by metes and bounds, “together with the right of way for all purposes for which a public alley can be used, over a strip of land twenty (20) feet in width next adjoining the above-described land on the westerly and northerly sides thereof.” Complainant agreed to pay $2,500 for said property, and erect thereon a building worth $5,000. It immediately went into possession of the premises, erected the factory, and has ever since possessed, maintained, and operated the same. Prior to this purchase, another parcel of this land, 40 feet wide and 180 feet deep, next adjoining along the entire southerly line of complainant’s land, had been sold to other parties.

On August 29, 1902, Beecher and wife conveyed to defendant Michigan Central Railroad Company a strip of land running from its right of way on the south, northerly, and in its course passing over the entire length of complainant’s right of way on the west side of its property, and including the whole of it, to be us.ed for a railroad right of way, for the purpose of constructing thereon a side track for railroad purposes. Said quitclaim deed recited that “the northerly 204 feet of said strip being subject to an easement for all purposes of a public alley-in favor of the owners and occupants of the premises adjoining the same.” Said right of way was granted subject to certain agreed terms as to the time the side track should be constructed. Upon southern portions within 60 and 90 days, “ and upon the remainder of the right of way, to wit, the said northerly 204 feet thereof, upon the surrender and abandonment by the owners and occupants of the premises adjoining the same of their said easement.” This 204 feet at the northerly end is that portion of the right of way passing along immediately west of complainant’s premises and the parcel 40 feet wide joining it upon the south, and which covers the entire right of way west of its property which it acquired by purchase from Beecher.

In November, 1902, Beecher recorded a plat of these premises. Upon this plat complainant’s premises are identical with lot 19. A strip 20 feet wide is laid off back of it. On this strip south of the north 204 feet is printed “M. C. R. R. land. Not included in plat.” On the north side of complainant’s premises is a public alley 20 feet wide.

Without notice to complainant, some of defendants on May 3, 1906, began to take proceedings to get permission to construct a side track across the public alley last named, and on June 28, 1906, without permission or any agreement between complainant and any of defendants, and without taking any proceedings to acquire complainant’s rights in its private way, began to lay a track in the center thereof west of complainant’s premises extending northerly along and past its premises and across the alley to the north thereof.

The bill of complaint in this case was filed June 30, 1906, and a temporary injunction issued restraining defendants from further constructing said track or using the same. The bill prays for a permanent injunction and for general relief. There is no dispute as to the material facts of the case. Upon a hearing in the circuit court a decree was granted dissolving the injunction; the relief prayed for was denied, and the bill dismissed.

Complainant upon its appeal from such decree contends that its property has been taken without due process of law; that under the Constitution and laws of Michigan private property cannot be taken by a steam railway without lawful condemnation and compensation therefor; and also that defendant railroad company is estopped, from constructing its road because of the covenant in its deed from Beecher. The contention of defendants is that the railroad company is the owner of this strip of land subject to the easement of complainant, and has the right to use the same for any purpose that an owner of an unincumbered fee could make use thereof; provided they do not unreasonably obstruct complainant’s easement.

We cannot agree with this proposition. Defendant railroad company is a public corporation, and the use to which it seeks to subject the right of way of complainant is for the purposes of a steam railway. It is not necessary for us to discuss or decide whether or not defendant’s position would be tenable were this dispute between private owners of interests similar to those of these parties. It is admitted that complainant has vested rights in this easement or private way, but urged that it' has not been ousted of such rights by the construction of a steam railway along such way. There is also no question but that defendant railroad company had full notice of complainant’s rights. It is urged that the provisions of the general railroad law (2 Comp. Laws, § 6234) do not apply to ways of this kind, but that the term “private road,” as used, applies only to such as are established under statutory provisions. Section 6234, 2 Comp. Laws, subd. 5, among other things, provides:

“But such railway shall not be constructed upon any public street, lane, alley, highway or private way until damages and compensation be made by the railroad company therefor to the owner or owners of property adjoining such street, lane, alley, highway or private way, and opposite where such railroad is to be constructed, either by agreement between the railroad company and each owner or owners, or ascertained] as herein prescribed for obtaining property or franchises for the purpose of its incorporation to be paid to the owner thereof, or deposited as hereinafter directed.”

Taking the use of the term “private way ” in the above quotation in connection with the words “public street,” “lane,” “alley,” “highway,”* which it immediately follows as the last of the different ways mentioned, we cannot but say that the legislative intent is clear that no-statutory road was intended, as defendants argue. The legislature evidently intended to include all private ways within the provisions of this subdivision of the section. Giving this construction to this later provision of the subdivision, we find that in order to give harmonious construction to all of it, the term ‘ ‘ private road ” used in the first sentence was not intended to be restricted in meaning to those roads .laid out as “private roads’’under statutory provision; but to include all private roads and ways however created. The right of way in dispute would be a “ private way” within the terms of this statute. It follows that the defendant without right entered upon this private way and proceeded to build and operate its railroad. Complainant was correct in contending that this could not be done without compensation or condemnation. The decree of the court below is reversed, with costs of both courts, and a decree will be entered perpetually enjoining defendants from entering upon said way for the purpose of building, using, and operating a railroad, and ordering defendant Michigan Central Railroad Company to remove all its rails, ties, switches, and all other materials placed thereon by it from the strip of land 20 feet wide adjoining said lot 19 on the west, and also to remove all such material from what is now known as a public alley northerly from the northwest corner of lot 19 and within the limits of the grant of this right of way from Beecher to complainant; all to be removed within 20 days after notice of said decree, and also within the same time to restore the said right of way to the same condition as when entered upon by said defendant, unless condemnation proceedings be sooner instituted.

Carpenter, Grant, Blair, and Ostrander, JJ., concurred.


text:
    BUNN v. KERNEN.
    Contracts — Sale of Business — Agreement not to.Resume — Injunction Against Violation — Evidence—Sufficiency.
    On a bill to enjoin the violation of an oral agreement not to reengage in a certain business, alleged to have been made at the time of selling defendant’s business to complainant, and for an accounting for damages, evidence examined, and held, that the oral agreement relied upon was not proven.
    Appeal from Gratiot; Searl, J.
    Submitted April 15, 1907.
    (Docket No. 104.)
    Decided October 4, 1907.
    Bill by Charles Bunn against John W. Kernen to restrain the continuation of a certain business, and for an accounting. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Julius B. Kirby, for complainant.

      John T. Mathews, for defendant.
   McAlvay, C. J.

Appeal in chancery from a decree in favor of defendant denying complainant relief, and dismissing his bill of complaint. , Complainant was engaged in the ice business in the village of Ithaca, Michigan. Defendant and his brother, known as Kernen Brothers, were engaged in the same business. Mr. W. J. Clark, an agent of complainant, opened negotiations for the purchase of the ice business of Kernen Brothers. These negotiations terminated in a sale and transfer to complainant for a consideration of $1,000. Of this purchase price $50 was paid January 10, 1904, when the terms of the sale were agreed upon, and the balance, $950, on January 20th following, when the writings between the parties were drawn and delivered. These writings consisted of a deed, a bill of sale, and a reservation of the use of cold storage. They were made directly to Clark as security to him for indorsing for complainant to procure cash to pay defendant. Clark afterwards transferred to complainant. After-wards during the year defendant again engaged in the ice business at Ithaca, and complainant filed the bill in this case against him, -praying for an injunction to restrain him from continuing and engaging in any way in the ice business in Ithaca and vicinity, and for an accounting to complainant for damages on account of again entering into said business; complainant alleging that at the time of his purchase of defendant’s business, in consideration of the money paid as aforesaid, defendant orally agreed not to engage again in the ice business at Ithaca.

The case was heard in the circuit court, and relief denied on the ground that the oral agreement relied upon was not proven. A rehearing was granted and the same decision was made. The question to be decided is one of fact. A careful examination of all the evidence in the case shows that the writings between the parties make no mention of the claimed agreement, and the testimony in the case does not establish it. To set forth this evidence, written and oral, will be of no benefit to the profession. We agree with the circuit judge in denying complainant the relief prayed, and dismissing the bill of complaint.

The decree is affirmed, with costs.

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


author: Montgomery, J.

text:
    CLEMENT v. ROMMECK.
    Negligence - >■ Sale of Dangerous Substances — Liability of Retailer.
    A .merchant who buys in the open market a stove polish which purports to be safe and proper for use, and sells the same for the purpose for which it is apparently intended, is not liable, in the absence of negligence, if it turn out that the polishes not adapted to the proposed use, but on the contrary is inflammable and explosive, and causes injury.
    Error to Wayne; Murphy, J.
    Submitted June 4, 1907.
    (Docket No. 6.)
    Decided October 4, 1907.
    Case by Alice D. Clement against Arthur O. Gr. Rommeck, impleaded with Crosby & Company, for personal injuries. There was judgment sustaining a demurrer as to defendant Rommeck, and plaintiff brings error.
    Affirmed.

      James H. Pound, for appellant.
   Montgomery, J.

This case was brought to recover damages for an injury sustained by plaintiff while using a stove polish manufactured by defendant Crosby & Co. and sold to plaintiff by defendant Rommeck. . Both defendants demurred to the plaintiff’s declaration. The demurrer was sustained as to defendant Rommeck and overruled as to defendant Crosby & Co. Crosby & Co. brought the case here and the order overruling its demurrer was sustained. Clement v. Crosby & Co., 148 Mich. 293. The plaintiff has now brought the case here to review the order and judgment sustaining the demurrer of defendant Rommeck.

The declaration alleges that plaintiff is by occupation a housekeeper, and, having occasion to polish up her gas range, did so with a preparation she had been solicited to buy from defendants. The declaration alleges that the preparation was “compounded, made, prepared, and put upon the public market in Detroit by a corporation known as Crosby & Co., one of the defendants herein, and upon which product defendants invited public use by the following solicitations, which they placed upon the goods when prepared for sale in the open market.” (Here follows the recommendation of the preparation for use when polishing gas ranges, stoves, etc.)

The declaration avers that the preparation was sold to her agent by the defendant Rommeck without any warning of the dangerous nature of the preparation; that as a matter of fact it is a highly inflammable, volatile, and dangerous mixture, liable to ignite by spontaneous combustion, and that as a matter of fact it did ignite when being properly used, and caused serious injury to plaintiff.

The duty that is averred in the declaration is as follows :

“ It then and there became the duty of the defendants, and each of them, to know the property and properties of the goods manufactured and sold by them, and that they should not manufacture and sell, both or either of them, dangerous and highly inflammable substances,” etc.

The plaintiff averred that she was in nowise negligent in the use of said product or of the said product of the defendant, known as Crosby & Co., a Michigan corporation, and known and called 6-5-4, which it manufactures, and which was sold to her in the ordinary course of trade by the defendant Arthur O. G. Rommeck, and that she, plaintiff, was in nowise blamable for her own injuries, but she now here avers and charges the fact to be that the negligence, carelessness, and wrongdoing of the defendants in the manufacture and placing upon the public market for sale without notice of its dangers of such a highly inflammable and dangerous product as the composition known as 6-5-4 is and proved itself to be to plaintiff without any warning of its dangerous qualities and characteristics and the said article being sold in the open market was and is the direct cause of the plaintiff’s injuries.

It is manifest from a reading of this declaration that the theory fairly to be deduced from it is that, though the defendant Rommeck bought the preparation from Crosby & Co. properly labeled in the open market and sold it in the open market, the positive duty rested upon him to know the property of the- goods and their inflammable nature and to communicate the facts to the purchaser. It is to be noted that the declaration contains no averment that the defendant Rommeck had actual knowledge of the inflammable nature of the goods, nor is it averred in what manner he was negligent in not knowing their inflammable nature. It gets down to this, whether af dealer, a hardware merchant, for example, who buys ini the open market stove polish which purports to be safe! and proper for use, and sells the article for a purpose for j which it is apparently intended, is liable in the absence j of negligence if it turn out that the article is not adapted f to the use, and causes injury.

We think it clear upon principle that no such liability exists. It is sought to liken the case to the sale of an article of food in which it is held that the sale to the consumer carries with it an implied warranty of the wholesomeness of the food. Craft v. Parker, Webb & Co., 96 Mich. 245 (21 L. R. A. 139); Hoover v. Peters, 18 Mich. 51. We are not aware that the rule of these cases has been extended to the sale of commodities like stove polish. On the contrary, we think that the principle stated in Brown v. Marshall, 47 Mich. 576, is analogoús, and that negligence must of necessity be the basis of an action in such a case. The plaintiff may in such case proceed against the manufacturer, as we held in Crosby's Case, supra.

Judgment is affirmed, with costs.

Carpenter, Grant, Blair, and Ostrander, JJ., concurred.


text:
    HOPKINS v. ORMSBY.
    Cancellation op Instruments — Deeds — Incompetenoy op Grantor — Undue Inpluenoe — Evidence—Suppioienoy.
    On a bill to set aside a deed of land on the grounds of the mental incompetency of the grantor and of the undue influence of the grantees, evidence examined, and held, to support a decree for the complainant.
    Appeal from Benzie; Chittenden, J.
    Submitted June 4, 1907.
    (Docket No. 15.)
    Decided October 4, 1907.
    Bill by Ada J. Hopkins, administratrix of the estate of Sampson P. Jaquith, deceased, against William Ormsby and Eliza Ormsby to set aside a deed. Prom a decree for complainant, defendants appeal.
    Affirmed.

      D. G. F. Warner, for complainant.

      Louisell & Nevius (P. C. Gilbert, of counsel), for defendants.
   Montgomery, J.

This is a bill originally filed by the guardian of Sampson P. Jaquith to set aside a deed of a 40-acre description of land made by Sampson P. Jaquith to the defendants on June 2, 1904, on the grounds of mental incompetency of said Jaquith and of undue influence exerted by defendants. After the filing of this bill Sampson P. Jaquith died. By stipulation the complainant, after being appointed administratrix of the estate of Jaquith, was substituted as complainant, the defendants saving any right of objection in the matter of defense. The case was tried in open court and decree rendered in favor of complainant and defendants appeal, and submit the case to the court with the discussion of two questions: First. Was Jaquith, on the second of June, when he executed the deed in question, mentally incompetent ? Sec ond. Does the testimony justify the conclusion of undue influence ?

In the winter of 1903-4 Jaquith, who was then past 80 years of age, and who had for several years been living by himself on the premises in question, went to reside temporarily with his daughter, Mrs. Hopkins, in the village of Benzonia. He remained there until about the first of May, the defendants at the time, who lived upon an adjoining piece of property, looking after his stock on the farm. About the first of May, Jaquith returned to the farm and the defendants came to live in his house. Before that they had been working some of the land on shares. Under some arrangement for continuing to work the land they became one family. On the second day of June he deeded the land in question for the stated consideration of $50 to the two defendants, and on the same day deeded another 20 acres to two sons of the defendants. The evidence shows that at the time this deed was made Jaquith was sick in bed. His brother who lived a half mile distant, and his daughter who lived in the village, were neither of them apprised of his illness or of the purpose to convey this land. A few days after the deed was made, word was conveyed to Mrs. Hopkins, his daughter and only heir, that her father was ill, and she visited him. She made, a number of visits during June, her father getting better of his illness, but no information was conveyed to,her either by her father or by defendants in relation to this deed, until about the 19th of July she saw a notice of its record in the county paper.

A good deal of testimony was given pro and con the mental competency of Sampson P. Jaquith at this date. It appears that very shortly after discovering this conveyance, application was made for the appointment of a special guardian and general guardian for Mr. Jaquith. A special guardian was appointed and later on a general guardian. The proceedings relating to this appointment are attacked, on the ground of irregularity amounting to. jurisdictional defects. But we do not see how it is important whether these proceedings were regular or irregular, as appellants’ counsel very properly assume the questions involved relate to the validity of the transfer at the time it was made which preceded either appointment.

At the time this deed was made the scrivener who drew it testifies that none were present except himself and the Ormsby family, four of whom received an interest in the conveyance made at the time, and the fifth, a young girl, acting as a witness. The evidence as to what the consideration agreed upon was is very unsatisfactory. The recollection of the scrivener is very vague, and crediting him with entire honesty it may be said that his account of the transaction is of little value. We are satisfied that Jaquith was at this time in a debilitated state; that his mind was so weak as to admit of his being easily imposed upon; he had no counsel from any friend nor any person not interested against him; and there is testimony indicating a studied purpose of withholding information from his relatives and to poison his mind against his daughter. The consideration named in the deed was grossly inadequate, as was the consideration provided by a subsequently (some weeks after) executed life leaseback to Jaquith of the same property conveyed by warranty deed.

The circuit judge who saw the witnesses reached the conclusion that this transaction ought not to stand. We think there is ample testimony in the case to justify the conclusion which he reached, and, in view of his better opportunity to judge of the credibility of the witnesses, we are not disposed to disturb the finding which he made.

The decree is affirmed.

Carpenter, Grant, Blair, and Ostrander, JJ., concurred.


author: Ostrander, J.

text:
    BLISS v. CAILLE BROTHERS CO.
    1. Appeal and Error — Assignments — Disqualification of Judge — Sufficiency.
    An assignment that the circuit judge erred in entering judgment and in hearing and determining motions to vacate the same when he was disqualified, by relationship with the plaintiffs, to do so, is sufficient in form to raise the question of the disqualification of the judge and the consequent invalidity of the judgment.

      % Judges — Disqualification—Relationship to Party — Effect on Judgment.
    Judgments and orders made by a judge who is disqualified by relationship to a party are not voidable merely, but are void, and subject to collateral attack.
    3. Appeal and Error — Errors Assignable — Disqualification of Judge.
    The disqualification of the judge who entered a judgment, by reason of relationship to the plaintiff, suggested in this court after the return of the writ of error, is an error of fact assignable on the writ of error.

      4. Statutes — Construction—Adoptiqn from Sister State — Common Law.
    Where a statute adopted from another State requires aid from the common law, the judicial interpretation of the statute, given by the courts of that State, does not bind the courts of this State to the extent of determining the rule of common law applicable to the statute.

      5. Judges — Disqualification—Relationship to Party.
    A judge is disqualified to hear and determine a case in which a blood relative of his wife within the ninth degree is a party, but he is not disqualified if the relationship arises merely from marriage of the party with the blood relative of his wife.
    6. Same — Parties—Nominal Parties — Executors and Legatees.
    Where a suit brought by a testator in his lifetime is continued in the name of his executrix, who is also his widow and a preferred and residuary legatee, she is not merely a nominal party, but is a party in interest, and a judge related to her by affinity within the prohibited degree is disqualified to act, though he was not so disqualified with reference to the testator.
    7. Same — Statutes—Construction—Saginaw County.
    Sections 276-284, 1 Comp. Laws, providing, among other things, that in Saginaw■ county “all cases made, motions for new trials and bills of exceptions and settlement of cases for review * * * shall be heard, settled, and certified by the judge before whom the trial or hearing was had” do not require that the judge who entered a judgment must hear and determine a motion to vacate the same where, by reason of a change in parties, he has become disqualified since the entry of the judgment.
    Error to Saginaw; Gage (William G.), J.
    Submitted June 7, 1907.
    (Docket No. 14.)
    Decided October 4, 1907.
    Garnishment proceedings by Allaseba M. Bliss and Lorenzo T. Durand, executors of the last will and testament of Aaron T. Bliss, deceased, against the Caille Brothers Company, Wilber W. Steele, and A. Arthur Caille, copartners as the Caille Company, and Wilber W. Steele, A. Arthur Caille, and Adolph A. Caille, as garnish ee defendants of Silas W. Tyler and Fred B. Tyler. There was judgment for plaintiffs, and defendants bring error.
    Reversed.
    Appellants are defendants in garnishment proceedings which have proceeded to judgment against them upon their default for want of appearance and disclosure. Execution has issued and property has been seized thereunder. The garnishment proceedings are ancillary to an action of assumpsit begun by Aaron T. Bliss in the circuit court for the county of Saginaw, in which county he resided, against two joint promisors, some time copartners, by the issuing of a summons and writ of attachment (3 Comp. Laws, § 10584), by serving one defendant personally within the jurisdiction of the court and by attaching, as appears by the return of the sheriff, real estate of the other (nonresident) defendant, against whom, alone, the asserted ground for attachment existed, situated in said county. Judgment in the principal action was rendered for the resident defendant upon his plea of the statute of limitations and his discharge in bankruptcy, and against the other (nonresident) defendant, who did not appear. Appellants are charged as garnishees of the judgment debtor. They reside in the county of Wayne and the writ of garnishment was executed there.
    In three several motions, in substantially the same form, entered in the court below, in each of which some of the garnishee defendants are the movers, it was asked that the judgment in the principal cause and in the garnishment proceeding, the defaults of the principal defendant and of the garnishee defendants, the service of the writs in both the principal and ancillary suits, be vacated and set aside, and that further proceedings under the execution levy be stayed pending the hearing. Reasons given for the relief sought are based upon the record and files in the several cases and upon affidavits, which it is claimed establish, among other facts, the one that the land upon which the writ of attachment was levied was not at that or at any other time the property of the nonresident judgment debtor. These motions coming on to be heard, they were denied. Thereupon appellants joined in suing out a writ of error and have separately assigned errors. No bill of exceptions was settled. In this court, a suggestion herewith set out was filed and brought to the notice of counsel for appellees:
    “And now come the said Caille Brothers Company, a corporatioh, Wilber W. Steele, A. Arthur Caille, copartners, doing business as- the Caille Company, Wilber W. Steele, A. Arthur Caille, and Adolph A. Caille, the garnishee defendants in the above-entitled cause, by Jonathan Palmer, Jr., their attorney, and respectfully show to the court that the Honorable William Glover Gage, one of the judges of the circuit court for the county of Saginaw, who heard and decided the several motions of said garnishee defendants to vacate the proceedings in said cause and who made the orders overruling said motions and rendered the judgment against Fred B. Tyler, one of the principal defendants, and the judgment against the said garnishee defendants, was related within the ninth degree, to wit, second cousin to Aaron T. Bliss in his lifetime, and to his widow, Allaseba M. Bliss, one of the executors of the estate of the said Aaron T. Bliss, and one of the plaintiffs in the above-entitled cause and the principal legatee under the will of the said Aaron T. Bliss, and that said William Glover Gage was disqualified by reason of said relationship to sit as judge and hear and determine the matters involved, in said case.
    “This suggestion is based upon the affidavits of Silas W. Tyler, A. Arthur Caille, and Wilber W. Steele hereto attached.”
    The most that is claimed for the affidavits is that they show that Judge Gage and Aaron T. Bliss married second cousins; that such relationship as was thereby created existed when these suits were begun and when the judgments were rendered; that Allaseba M. Bliss is widow and legatee of Aaron T. Bliss, who died after the judgments were rendered and before the said motions were made, and the executrix of his last will and testament, who has by virtue of her office succeeded her husband upon the record as plaintiff in the actions. It does not appear that Mr. and Mrs. Bliss had children born of their marriage. The matter suggested was not brought to the attention of Judge Gage, and it is not claimed that he was cognizant of the exact relationship existing between his wife and Mrs. Bliss or that he was in fact, not indifferent. The suggestion as limited by the affidavits has not been controverted (3 Comp. Laws, § 10402), and the fact of the relationship, above stated, is not disputed. There is returned with the writ of error the record of the proceedings in said suits, the motions and the order made with reference to them, the affidavits used in support of the motions and in opposition thereto. It is assigned as error that the circuit judge entered the various judgments and heard and determined the motions to vacate the same when he was disqualified, by relationship with the plaintiffs, so to do. The only other assignment of error is based upon the refusal of the court to grant the motions. Appellees moved in this court to dismiss the writ of error and to strike from the files the said suggestion and affidavits. These motions are pending.

      Jonathan Palmer, Jr. (Flbridge F. Bacon and Bus-sell B. Thayer, of counsel), for appellants.

      John A. McKay (Gray & Gray and L. T. Durand, of counsel), for appellees.
   Ostrander, J.

(after stating the facts). We regard the first assignment of error sufficient in form to raise the question of the disqualification of the judge and the consequent invalidity of the judgments. It is contended that we are not at liberty to consider this question. The motions which have been referred to were made November 28, December 8, and December 15, 1906, were heard December 29, 1906, and determined January 21, 1907, an opinion being filed. The writ of error was issued February 20, 1907, and was returnable March 29, 1907. The suggestion filed in this court is dated April 6, 1907, and the affidavits in support thereof were made March 26, 1907, and April 5, 1907, respectively. Two of the deponents, garnishee defendants, who join in an affidavit, say that about February 1, 1907, they first heard a rumor to the effect that Judge Gage was related by marriage to Aaron T. Bliss and Allaseba M. Bliss, and was disqualified, but were unable to obtain positive information until on or about March 26, 1907. One of the persons from whom they learned the fact óf the said relationship was Silas W. Tyler, who made the other affidavit, was one of the defendants in the original suit, and is father of the judgment debtor, who avers that on March 26, 1907, he learned the fact from Mrs. Bliss. The fact upon which disqualification is predicated was not then discovered or suspected by appellants until after the entry of the orders denying their motions. The earliest opportunity, therefore, for presenting the point was after the last action taken by the judge and any motion or suggestion thereafter made in the court below could have resulted in nothing more than a confirmation of the alleged facts hy admission on the part of the judge, or a denial of the facts or of the legal consequences asserted. Judgments and orders made by a disqualified judge are not voidable merely, but are void. They may be collaterally attacked and the objection, if not taken before decision is rendered, is available in the appellate court. See Teller v. Wetherell, 6 Mich. 46; Peninsular R. Co. v. Howard, 20 Mich. 18; Horton v. Howard, 79 Mich. 642; Shannon v. Smith, 31 Mich. 451; Post v. Black, 5 Denio (N. Y.), 66; Dimes v. Grand Junction Canal, 3 H. of L. Cas. 759; Mercers, etc., Co. of Chester v. Bowker, 1 Strange, 639; Cooley on Constitutional Limitations (7th Ed.), p. 595; 23 Cyc. p. 583; 11 Enc. PI. & Pr. p. 781 et seq., and notes. We are of opinion that the point is before us for decision.

Was the judge disqualified by reason of his relationship to the plaintiff ? A principal, challenge to a juror, at the common law, was one where the cause assigned carried with it prima facie evidence either of malice or of favor to one of the parties. There were, also, challenges to the favor, which depended upon some asserted or disclosed circumstances of suspicion, the validity of which was determined by triers who found whether the juror was or was not indifferent. Among the. principal challenges recognized was one predicated upon the relationship of the juror to a party. Blackstone says a juror was disqualified who was of kin to either party within the ninth degree. Chief Justice Champlin so stated the rule (obiter as to the degree), in Horton v. Howard, supra. Blackstone also treats consanguinity and kindred as terms to be defined alike. Book 2, chap. 14. Unlike the common law, our statute (3 Comp. Laws, § 10238) provides for peremptory challenges and it has been held that, therefore, the distinction between challenges for principal cause and to the favor is practically abolished. Holt v. People, 13 Mich. 226. All challenges are for cause, and if the facts upon which the challenge is based are undisputed the decision of the question is one of law, and open to review on exceptions. Holt v. People, supra. We have no statute presumptions of disqualification of jurors on the ground of relationship, and are left to inquire whether among the rules of the common law in force in this State there are any for determining the question. presented as. one of law. The cases of Hasceig v. Tripp, 20 Mich. 216; People v. Harding, 53 Mich. 48; Horton v. Howard, supra, refer to the common law for rules of decision without, however, stating a rule. And in the first and last of these cases the relationship alleged was one of blood.

Our statute disqualifies a judge from sitting in a case in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties. 1 Comp. Laws, § 1109. Judge Gage was not related by consanguinity to Aaron T. Bliss and is not so related to Mrs. Bliss. It is unnecessary to do more than-refer briefly to the origin and history of the legal doctrine of affinity. It grew out of canonical maxim that sexual union makes man and woman one flesh. The application of the maxim, especially as affecting marriage, divorce, and the legitimacy of children, gave rise to rules, the intricacy of which is proof of the amazing ingenuity of the churchmen. The rules varied with different periods. The temporal courts were sometimes recalcitrant in adopting those which were formulated, and it is not always easy to determine the degrees of relationship established by these rules within which, at a particular time, marriage was prohibited. But the notion obtained, to some extent, that relationship other than by blood might be so intimate that of itself it ought to prevent officers and jurors from acting in matters in which their relatives were interested. Courts were called upon frequently to determine whether the challenge of a juror or of an array of jurors was a principal challenge or one to the favor, and in so doing apparently introduced some confusion into the law as they recognized or failed to recognize some canonical rule of affinity. Since our statute, in terms, recognizes the doctrine and does no more, we must determine how much of it, applicable to a case like the one before us, survives, in doing which we are bound by the rule of no period and by the determination of no court. We are bound to consider and give effect to the changes in the common law made by our statutes in respect to the relations with which the doctrine was intimately associated. We should keep in mind, also, the fact that the use of the doctrine attempted is for the purpose only of determining whether in support of a high public policy affecting the administration of the law a juror or a judge should be regarded as indifferent or as biased.

An examination of authorities has led to the conclusion that the doctrine of affinity relationship should be limited by the following rule: Affinity is the relation existing in consequence of marriage between each of the married persons and the blood relatives of the other, ánd the degrees of affinity are computed in the same way as those of consanguinity or kindred. A husband is related, by affinity, to all the blood relatives of his wife, and the wife is related, by affinity, to all the blood relatives of the husband. See Bouvier Law Dictionary, p. 113; 1 Am. & Eng. Enc. Law (3d Ed.), p. 911; 3 Cyc. p. 38; 33 Cyc. p. 583; 34 Cyc. p. 374; 1 Words and Phrases Judicially Defined, p. 345. It is true our statute was adopted from the State of New York, and that when adopted here it had received j udicial interpretation by the courts of that State (Foot v. Morgan, 1 Hill [N. Y.], 654; Paddock v. Wells, 3 Barb. Ch. [N. Y.] 333), and that in the last-mentioned case, at least, á different rule was stated obiter. But the judicial interpretation which can be said to be binding upon the courts of this State extended only to the point of determining that the statute must be aided by the common law. The particular rule of common law adopted and in force in this State is not to be determined authoritatively by courts of another State. The rule above stated is the rule of decision in both of the New York cases above cited, as well as in Higbe v. Leonard, 1 Denio (N. Y.), 186, decided in 1845. The other and further rule stated, obiter, in Paddock v. Wells, to the effect that ‘ ‘ relationship by affinity may also exist between the husband and one who is connected by marriage with a blood relative of the wife,” is based upon very remote, and is opposed to the weight of modern, authority. We must decline to hold that the fact that two men, unrelated, marry wives who are second cousins, establishes between them a relation by affinity.

. We conclude, therefore, that Judge Gage is related by-affinity to Mrs. Bliss; that he was not related by affinity to Aaron T. Bliss. He was not disqualified to hear and determine the causes or to enter the judgments sought to be vacated. It is conceded that he was disqualified to hear and determine the motions to vacate the judgments unless Mrs. Bliss is regarded as a nominal party, unless, also, an exception of necessity must be made because of the statute (1 Comp. Laws, §§ 276-284), which provides, among other things, that in Saginaw county—

“All cases made, motions for new trials and bills of exceptions and settlement of cases for review, * * * shall be heard, settled and certified by the judge before whom the trial or hearing was had.”

Mrs. Bliss is not a nominal party. She is beneficially interested in the estate of her husband as a preferred and as a residuary legatee. 23 Cyc. pp. 584, 585. It is Aell established that the rule of disqualification of judges must yield to the demands of necessity, as, for example, in cases where applied it would destroy the only tribunal in which relief could be had. See the cases collected in 23 Cyc. p. 581, note 76. The statute recognizes the possibility of the absence, illness, “or inability from other cause” of the judges, preventing the one to whom business is assigned from acting. See sections 281, 283. It would not be claimed that the death of one of the judges would prevent the settlement of exceptions, etc., in cases which had been tried before him. This statute and the one disqualifying judges must be read together, and so read may both of them be given effect. It results that the first assignment of error must, to the extent indicated, be sustained. As the judgments are not attacked for anything appearing of record in the matters, in which they were rendered, but only by matters brought upon the record with the motions to vacate, and as the only other error assigned is that the court, in consideration of such matters of fact, should have vacated the judgments, there is no further question for our consideration. An order will be entered setting aside the orders overruling the motions of appellants, and reinstating the same for argument, with costs.

Grant, Blair, Montgomery, and Hooker, JJ., ' concurred.


text:
    GLEASON v. STONEHOUSE.
    Deeds — Delivery—Evidence—Sueeioienoy.
    On a bill to set aside a deed and for an accounting of the rents and profits of the property described therein, evidence examined, and held, that testimony tending to show that the grantor placed the deed, with others to other grantees, in a box in which he kept his papers, and before his death requested defendant to get the box and take care of it, did not tend to show a delivery of the deed to defendant.
    Appeal from Kent; Wolcott, J.
    Submitted June 6, 1907.
    (Docket No. 45.)
    Decided October 4, 1907.
    Bill by Clark H. Gleason, trustee, against Albert Stone-house and Matie Stonehouse to set aside a deed, and for an accounting. From a decree for defendants, complainant appeals.
    Reversed, and decree entered for complainant.

      Gleason & Lee, for complainant.

      Smedley & Corwin, for defendants.
   Montgomery, J.

The bill in this case was filed for two purposes: (1) To set aside a certain deed made by John Stonehouse and wife to defendant Albert Stonehouse of two lots in the city of Grand Rapids, Michigan, known as lots 107 and 110 of Leonard & Co.’s addition, on the ground the deed was never delivered, and to decree that complainant is the owner of the undivided one-third thereof. (2) To compel defendant to account to complainant for the undivided one-third of the rents and profits of said lots, also of the proceeds of certain lands in Montcalm county described in another deed from said John Stone-house and wife to defendant, which lands, defendant had sold and conveyed to innocent purchasers. By agreement of counsel the matter of the accounting was eliminated from this case, the same to be taken up, if it be determined that defandant should account therefor, in the accounting suits now pending in the circuit court for the county of Kent.

The two deeds referred to were executed by John Stone-house and wife. The defendant Albert Stonehouse is the grantee named in each deed. Complainant contends that neither deed was ever delivered by the grantor to the defendant. The deed of lands in Montcalm county was executed April 3, 1883, and was, recorded July 9, 1883. Consideration named in the deed is $3,500. The deed of the lands in the city of Grand Rapids was executed May 7, 1883, and was recorded June 1, 1883. Consideration named in the deed is one dollar. Both deeds were without present money consideration. John Stonehouse, the grantor, died in the city of Grand Rapids, May 28, 1883, intestate, leaving a large amount of property, both real and personal.

The question for determination in the case is one of fact, viz., Did John Stonehouse at any time during his lifetime deliver the two deeds in question to Albert Stone-house, the defendant, with intent to have them take effect presently ? A question was raised upon the trial as to whether, by a certain settlement between the parties, this matter had not been adjusted; but both parties now seem agreed that the settlement is not an issue in this case and cannot be determined. The circuit judge held that such settlement was not a bar to this case in any view, and the defendant has not appealed. The circuit judge, however, found as a fact that the deeds had been delivered. The testimony upon this subject of delivery is furnished by Sarah A. Bentley, a sister of John Stonehouse, and by the two defendants. For some time prior to the execution of these deeds John Stonehouse had been ill at Maple Hill, Michigan, where he had lived for some years, engaged in the lumber and shingle business. Mrs. Bentley was caring for him as a nurse. She testifies that the notary came to the house and prepared these deeds, together with deeds of other property to other of his children; that John Stonehouse signed them; that she, together with the notary, witnessed them; and that the papers were then handed to her with the request that she place them in a secretary kept in the house, and that she did so; that nobody was present except the notary and the witness.

The testimony shows that not long after this John Stonehouse was removed to'Grand Rapids, and, as before stated, died on the 28th day of May, 1883, which was about three weeks after the last deed was executed. Mrs. Bentley testifies that after the death of John Stonehouse, the defendant Albert Stonehouse asked her where those deeds were put, and she told him they were put in his father’s secretary. This conversation, she states, was after the death of John Stonehouse and before the funeral. The defendant testifies that he has no recollection whatever of any such conversation and testifies that when his father came down from Maple Hill to Grand Rapids he accompanied him and that his father requested him to bring down a box. We quote from his testimony:

“ He says, ‘ Albert, you know the box that I always keep my papers in?’ I said, ‘Yes, sir.’ And he says, ‘ You go and get that box and bring it with you because that contains all of my papers.’ * * * I took this box with me. Father mentioned it again that day. He told me after we got him into the house and all settled so that he was a little easier, he says, ‘ Albert, you take that box and take care of it.’ I took it home. It contained five deeds, also abstracts, quite a few receipts and all those line of papers, old deeds and old abstracts of property. I have the box yet.”

Witness also denied having gone to Maple Hill after the deeds. He testifies that after the funeral the deeds were in the box and he took out the deeds of his property up there and brought them down and put them on record, and gave his brother his two deeds.

The defendant Matie Stonehouse testified that she was present when his father reached Grand Rapids from Maple Hill, and testifies that when Albert told his father that he was going home for the night his father asked, “Have you got the box that you brought down with you ? ” Albert said, “Yes.” The father said, “Well, take it with you, it is yours, the papers that are in there are yours,” and she recognized the box which contained the deeds as the one Albert took home. This witness is somewhat confused in stating this conversation on cross-examination, and it is to be noted that her testimony differs very materially from that of her husband.

The testimony of Albert Stonehouse, so far from showing delivery, tends in the opposite direction. The box in question not only contained the deeds running to Albert but to others as well, together with other important papers. John Stonehouse, being too ill to care for it himself, requested Albert to take the box and take care of it. This goes far to disprove any purpose of delivering, to have present effect, any one of the papers contained in the box,. There is no pretense that any authority was delegated to Albert to deliver the deeds to either of the other children, and it is not to be inferred that John Stonehouse expected to deliver the deeds to one of the children and leave the others not delivered.

In view of this conflict between the testimony of the defendants, it is too much to ask that we place credence in the statement of the witness Matie Stonehouse of the precise words that John Stonehouse used on the occasion in question. In the first place the words prove too much. John Stonehouse could not have intelligently said of the papers in the box that they belonged to Albert Stonehouse. This might possibly have been said of the two deeds in question if the grantor had so intended; but the box contained many other papers — among the others, deeds to other children. These certainly were not the papers of Albert Stonehouse. Furthermore, it was not Albert Stonehouse’s box, as he well understood.

We think the fair course is to accept the testimony of Albert Stonehouse as more reliable than that of his wife, and his testimony fails to show a present delivery of these deeds in its most favorable construction to the defendant. "We feel constrained to reverse the decree of the circuit court, and direct that the deeds in question be held inoperative, and that the complainant, subject to any defense that may be made in the accounting case, is entitled to the rents and profits of her one-third .interest in this property.

Complainant will recover costs of both courts.

Carpenter, Grant, Blair, and Ostrander, JJ., concurred.


author: Blair, J.

text:
    FRIEDMAN v. ADAMS.
    Compromise and Settlement — Effect.
    Defendant by written order authorized plaintiff to retain from moneys due him a certain amount as a contribution towards the payment by plaintiff of a certain claim against a railroad upon which both parties had liens. Subsequently plaintiff entered into an agreement with others in interest providing that plaintiff should be fully protected against the claim, and that defendant should be paid in full, and later, before any part of the claim had been paid, consented to the payment to defendant of the sum due him and the taking of his receipt in full. Held, that plaintiff had no cause of action against defendant on the written order, whatever claim he may have had originally being lost by the settlement and receipt.
    Error to Wayne; Donovan, J.
    Submitted June 7, 1907.
    (Docket No. 23.)
    Decided October 4, 1907..

      Assumpsit by William Friedman against John T. Adams for an amount due upon a written order. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Bernard B. Selling, for appellant.

      Wilkinson, Post & Oxtoby, for appellee.
   Blair, J.

Plaintiff, as assignee of William B. Strang, Jr., brought suit against defendant for a sum alleged to be due upon a written order. The declaration contained a special count, to which were added the common counts. The special count set forth the cause of action, as follows:

“For that, whereas, the said defendant and the said William B. Strang, Jr., hereinafter called plaintiff’s assignor, were, in the year of 1899, jointly engaged in the building of the Detroit & Lima Northern Railroad, and in the course of said enterprise it became necessary for the plaintiff’s said assignor and said defendant to pay various indebtedness which the plaintiff’s said assignor and the said defendant assumed and were jointly liable for, among which was an indebtedness of $12,500 which the plaintiff’s said assignor paid at the request of said defendant, said defendant agreeing to pay his share of said money and giving to said plaintiff’s assignor an instrument in writing reading as follows:

“‘Toledo, Ohio, Oot. 5, '99.
“ ‘W. B. Strang, Jr.:
“ ‘Whereas you are giving the Minnesota Loan & Trust Company .and Chas. N. Nelson (or E. A. Merrill for them) an order on the Columbus Northwestern Ry. Reorganization Committee for §12,500 in settlement of the Haskell claim, to be paid out of the moneys due you, this authorizes you to charge and retain from amounts due me as a contribution to said $12,500 the sum of $2,500.’
“ ‘ J. T. Adams.’

“Said plaintiff’s assignor paid said $2,500, relying upon the promises of the said defendant to make good or to pay to said plaintiff’s assignor the said sum of $2,500 mentioned in the foregoing instrument.

“ It then became and was the duty of the said defendant to repay to the said plaintiff’s assignor the said sum of $2,500, with interest, but the said $2,500, with interest, has never been paid or made good to the plaintiff or his said assignor.”

The Merrill claim referred to in the order was based upon a written instrument signed by C. N. Haskell containing, among other things, the following: .

“New York, N. Y., November 21, 1898.

“On the 21st day of May, 1899, for value received, I promise to pay to the order of Charles N. Nelson and the Minnesota Loan & Trust Company of Minneapolis, at the office of the Minnesota Loan & Trust Company in Minneapolis, in the State of Minnesota, the sum of twenty-five thousand dollars ($25,000) with interest from the date thereof at five per cent. (5^) per annum, having deposited as security therefor the certificate of William B. Strang, Jr., as contractor, for the sum of forty-five thousand dollars ($45,000) purporting to be secured as a first lien upon the Detroit & Columbus extension of the Detroit & Lima Northern Railway Company, which certificate bears date the 16th day of August, 1898.”'

Prior to September 6, 1898, Strang had been engaged, as manager of a finance company, in constructing the Detroit & Lima Northern Railroad and a branch or extension from Peoria to St. Mary’s, Ohio. Strang’s compensation was the cost of construction and 10 per cent, additional.

In the course of construction, Strang issued lien certificates to persons furnishing money to build the road, payable when he collected from the company. September 6, 1898, the road went into the hands of a receiver, and thereupon Strang filed a lien against the road for about $700,000, covering all of the Strang lien certificates, the money which he had put into the road individually, and all other claims which he had against the road. Soon after the appointment of the receiver, plans were instituted for reorganization, and two separate committees were appointed for that purpose, one for the Detroit & Lima Northern, the other for the St. Mary’s Branch, referred to as the Columbus Northwestern Railway.

Charles N Haskell was the promoter of the Detroit & Lima Northern Railroad, and was president of the same. John T. Adams, the defendant in this suit, was a subcontractor and sublienor under William B. Strang, plaintiff’s assignor. Charles N. Haskell was the owner of one lien certificate to the amount of 110,000, which had been assigned to him. All of the liens not represented by Mr. Strang were to be transferred to the main line, which would leave the St. Mary’s division free from all liens except those represented by Strang. In order to sell the St. Mary’s division free and clear from the rest of the road except the Strang liens, it was necessary to cancel certain bonds and certain lien certificates or put them into the hands of somebody who had authority to do so.

On September 7, .1899, William B. Strang placed in the hands of the Columbus Northwestern Reorganization Committee his lien, upon certain stipulations and conditions, the principal ones being the recognition of certain claims of Strang as entitled to priority, and payable in full. Priority was granted to these claims of Mr. Strang by various resolutions of the reorganization committee.

The holders of the Merrill claim refused to agree to the plans of reorganization unless Strang would guarantee them that they would be paid out of the first money coming to him. Strang declined to do this unless Adams and Mr. Harmon would give him orders like the one declared upon. Haskell procured such orders, the one from Harmon being for $4,500, and thereupon Strang filed with the committee an order to pay to the holders of the claim 1 ‘ out of such moneys to which I may be entitled by the terms of the reorganization agreement and the plan accompanying the same, bearing date September 7th, 1899,” $12,500, with interest at 5 per cent. The order, which was dated October 20, 1899, and was accepted by the committee October 21, 1899, provided that—

“At the time of paying the said sum of $12,500, and interest, in compliance with the provisions hereof, you are to receive from the said Minnesota Loan & Trust Company, and said Nelson, or their assigns, certificate of de-' posit, which shall be issued by the Hamilton Trust Company to them upon the deposit of my certificate of $45,000 and a certain note of Charles N. Haskell to them, bearing date November 21st, 1898, to secure the payment of $25,000 and interest, at the rate of five per cent, per annum.

“ The said trust company and said Nelson shall be under no obligation to deliver the said securities, unless the aforesaid payment is made to them within one year from the date hereof.

“DatedNew York, October 20th, 1899.”

On September 11, 1900, the Columbus Northwestern Railway having been advertised to be sold at public sale on 'September 21, 1900, Strang made a proposition to the reorganization committee containing, among other things, the following:

“As no proposition has been suggested in reference to the purchase of the Columbus Northwestern Railway, the sale of which is set for September 21st, 1900, which will protect the creditors of the committee under private agreement, I herewith submit for your acceptance a proposition under which I may meet the obligations of the committee and at the same time save myself and creditors as well as the certificate holders from further great loss. I, or such person or corporation as I may designate, will bid in the railway property at the coming sale. Regardless of the price I may have to bid at said sale to purchase the property, I will settle the following claims, etc., for the committee and this shall be accepted by them in payment for said property, to wit: * * *

“It is distinctly understood that my bid at the public sale for the purchase of this property shall in no way affect the payments that I have to make for or to the committee, my object being to free and discharge the committee from liability if I undertake to become the purchaser or provide for a purchaser of the property and I am to have full power to use for this purpose all claims and securities deposited with the committee or under their control and with further power to compromise, contest, repudiate or adjust any apparent charge or liability against the committee or property. The committee will by proper orders or assignments invest me with the legal control of all of said claims and securities for the above purchase.

“Having acquired title to the property, I will place same in the hands of a railway corporation and they shall upon account of said property issue the following stocks and bonds. * * *

“ The contract between the committee and the depositors with the Hamilton Trust Company contemplated the reorganization of the Columbus & Northwestern Railroad Company under plan ‘A’ or plan 4 B,’ set forth as a part of said contract. My proposition cannot be carried out under plan ‘A’ but is a substantial execution of plan 4 B,’ except that the certificate holders and other interests under the Strang lien and judgment, after the payment of the cash requirements, will receive 63^ in preferred stock, of the face value thereof, instead of 100^ of perferred and common stock of the principal and interest thereof, as set forth in plan 4 B.’ This being a departure from the contract of the committee with its depositors, and the assent of 66^ in writing of the certificate holders and beneficiary interests, other-than cash, being required, I request that the committee shall forthwith obtain the necessary consents in writing so that there* may be no delay.

“This proposition and the benefits to be derived therefrom shall extend only to those certificate holders who shall assent in writing on or before the 21 st day of September, 1900.

(Sgd.) 44 W. B. Strang, Jr.

44 O. K., C. N. Haskell.”

This proposition was accepted by the reorganization committee. The property was bid in by Strang at the sale under an .agreement with Haskell that the property was to be bid in for the joint interest of Strang and Haskell and defining their interests in the property. The agreement contained a provision that:

44 It is also understood as a part of this agreement that the payment to the Minnesota Loan & Trust Company of 112,500 is to be assumed and paid by said Haskell.”

At the time of bidding in the property, Strang had an understanding with the Toledo & Ohio Central Railway Company that the property should be sold to it.

On November 1,1900, Strang made a written proposition to the Toledo & Ohio Central Railway Company to sell the property to it, which proposition was accepted by the company on the same day. On December 31, 1900, Strang and Haskell entered into a new agreement in writing, reciting the joint interest of the parties, the agreement to sell to the Toledo & Ohio Central Railway Company, and containing provisions as to the interests of the parties, which were more unfavorable to Strang than those in the September agreement. Strang fully understood this agreement and its effect, but testified that Haskell and Mr. Lewis, who was attorney for the Toledo & Ohio Central Railway Company and Haskell as well as for Strang, took advantage of his financial straits and practically compelled him to sign this agreement or lose everything. This agreement, after providing that a portion of the proceeds of the sale to the railway company should be allowed and delivered to Strang, required that the remainder should constitute a fund for the payment of the obligations assumed, and, among others:

“And out of said funds is also to he paid such an amount as may be due to said John T. Adams, if anything, out of the item of $38,961.10 referred to herein as a right of way claim.

“7. It is further understood, as to the claim of E. A. Merrill for twelve thousand five hundred dollars ($13,500), which has been guaranteed by said Strang, that said Strang is to be fully protected on account thereof out of the above-mentioned remaining securities.

“8. All of the bonds, securities, subsidies and other property remaining after compliance with the terms and conditions herein set forth, is to become and be the sole property of said Haskell and those he represents, not mentioned herein.

“ 10. It is further mutually agreed and understood that all claims to be paid out of said remaining fund shall be in the hands of said Haskell for compromise, settlement or litigation, as he may deem proper, but all settlements are to be to the approval of said Strang, and that said Strang will co-operate therein to the best of his ability in aiding such compromise, settlement or litigation.”

The remaining securities referred to in the agreement were left by the parties in the hands of their attorney, Mr. Lewis, to pay the various claims as adjusted. On January 13, 1901, Mr. Lewis paid to the defendant Adams the sum of $6,000 and took from him the following receipt:

“ I acknowledge receipt from Doyle & Lewis of the sum of six thousand dollars ($6,000), the same being in full payment, satisfaction and discharge of any and all claims heretofore held by me or by the firm of Vallery & Adams against the Detroit & Lima Northern Railway Company, or the Columbus Northwestern Railway Company, or either of them, and especially covering any interest which I may have had in the so-called Adams right of way claim referred to in the decree of December 16, 1899.

“This receipt, however, is not intended to do other than release the railroads and property from any claim or lien, but does not release or satisfy a recent contract had with C. N. Haskell by which I am to receive further securities from him as a part of the terms of said last-mentioned contract.

- Signed “ J. T. Adams.

“Toledo, Ohio, Jan. 13, 1901.”

On January 34, 1901, Haskell and Strang executed the following writing:

“ Toledo, Ohio, Jany. 34, 1901. “To Doyle & Lewis:

“ We hereby consent to the following payments made and to be made out of the fund now in your hands and collected in the Harmon case, and known as the Adams right of way claim, amounting to $80,839.09, as follows:

J. T. Adams.....................................$6,000.00
F. S. Mitchell................................... 1,401.00
W. B. Strang, Jr................................ 1,200.00
Dime Savings and Banking Go___________________ 10,550.00
Euclid Ave. Trust & Savings Co.................. 8,900.00
Signed “ W. B. Strang, Jr.
“C. N. Haskell.”

On the 19th day of September, 1903, Mr. Lewis paid the Merrill claim.

The circuit judge directed a verdict for defendant, and plaintiff has brought the record to this court for review. In our opinion, the trial judge did not err in holding, as a matter of law, that plaintiff had not established his cause of action.

The instrument declared upon was not an evidence of a general indebtedness on the part of Adams to Strang, but was an agreement to contribute to the payment of the Merrill claim from a special fund, in consideration of the payment of the claim by Strang out of moneys dué him. No money was to be paid by Adams, nor was any action required of him. If the reorganization committee used moneys due to Strang to pay the Merrill claim, Strang was authorized to receive and retain of the moneys due to Adams the sum of $2,500. The reorganization committee did not succeed in carrying out its plan, and Strang took the matter off its hands and assumed its obligations. In the September contract with Haskell, Strang expressly renounced an intention to pay the Merrill claim, and provided for its payment by Haskell. In the December contract, Strang provided that he should be fully protected on account of the Merrill claim, and that Adams should be paid what was due him, if anything. On January 12, 1901, they settled with Adams arid took his receipt in full. At the time of the settlement with Adams, no part of the Merrill claim had been paid, and plaintiff, by his own act, put it out of his power to retain any sum due Adams upon a subsequent payment by him of the Merrill claim. Whatever claim plaintiff may have had against defendant Adams prior to the time of the settlement, he lost thereby.

Judgment affirmed.

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


author: Cabpenteb, J.

text:
    COLEMAN v. McGOWAN’S ESTATE.
    1. Evidence — Declarations—Admissibility.
    Declarations of a decedent tending to disprove a claim against his estate, not made in presence of the claimant, cannot be shown on the trial of the claim.
    a. Same — Declarations by Decedent — Effect.
    Where a claimant against the estate of a decedent for services shows declarations of decedent that there was an understanding that claimant should be paid, a contention that no recovery can be had for services rendered prior to the earliest of the declarations is not tenable, since the declarations constitute an admission of the existence of an obligation to pay claimant’s entire claim.
    Error to Genesee; Wisner, J.
    Submitted June 7, 1907.
    (Docket No. 98.)
    Decided October 4, 1907.
    Julia Coleman presented a claim against the estate of Elizabeth McGowan, deceased, for services rendered. The claim was allowed by the commissioners, and contestant appealed to the circuit court. There was judgment for claimant, and contestant brings error.
    Affirmed.

      Seth B. Terry (Everett L. Bray, of counsel), for appellant.

      Black & Roberts, for appellee.
   Cabpenteb, J.

Elizabeth McGowan died May 14, 1904. From 1889 until her death, with the exception of about a year, Miss McGowan lived at the home of Mrs. Coleman, the above-named claimant. Claimant brings this suit to recover compensation for boarding and caring for the deceased during this time. In the circuit court she recovered a verdict and judgment for $2,078.50. The estate asks us to reverse that judgment upon several grounds:

First. It is contended that the trial court erred in refusing to permit the estate to introduce in evidence declarations of deceased not made in claimant’s presence, which tended to disprove the claim. The ruling of the trial court was correct. Van Fleet v. Van Fleet, 50 Mich. 1.

Second. It appeared from the testimony that deceased had stated that she had never paid claimant for any of the board or care furnished; that this was to be fully paid out of her estate after her death; that there .was an understanding to this effect between her and claimant and that for this reason claimant would have no trouble in collecting her account. . The point is made that inasmuch as it appeared by this testimony that the earliest of these declarations was made in 1895 there could be recovery for nothing prior to 1895. I think it a proper answer to this contention to say that from this testimony the jury were warranted in inferring that the understanding admitted by the deceased was made at such a time and in such a manner as to obligate her estate to pay claimant’s entire claim. The declarations above set forth, properly construed, constitute an admission of the existence of such an obligation.

Third. In answer to other complaints of the estate, we say: (a) That in charging the jury the trial judge presented in a clear and fair manner every proposition of law needful for them to consider; (6) that the verdict of the jury was not against the weight of the testimony.

Judgment affirmed.

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