author: Carpenter, J.

text:
    LINDSLEY v. SMITH.
    1. Husband and Wife — Separate Estate — Agency of Husband.
    Where a wife stated to plaintiffs, lumber dealers, that if she could sell her house she would buy lumber of them and build ” another, and subsequently she did sell her house, after which her husband, claiming to act as her agent, ordered lumber on her credit, from which a house was built for her, and for which she paid in part, an inference of her liability arises, without violence to the rule forbidding the use of. the declarations of an agent to establish agency, or the rule that there is no presumption of the authority of a husband to act for his wife.
    2. Same — Ratification—Instructions—Propriety .
    Though there is no positive testimony of knowledge to support an instruction that defendant, a married woman, might be held liable for goods purchased by her husband, representing himself to be her agent, on the ground that she remained silent knowing that the goods were being furnished upon- her credit, the giving of such instruction is not error, where the inference of knowledge may be drawn from the testimony.
    Error to Cass; Des Voignes, J.
    Submitted November 11, 1907.
    (Docket No. 150.)
    Decided December 30, 1907.
    Assumpsit by John A. Lindsley and Edwin M. Lindsley, copartners as J. A. Lindsley & Company, against Lydia A. Smith for goods sold and delivered. There was judgment for plaintiffs, and defendant brings error.
    Affirmed.

      John Wooster, for appellant.

      Charles E. Sweet, for appellees.
    The plaintiffs are copartners engaged in selling lumber by retail in the village of Dowagiac, Cass county. The defendant is a married woman, the wife of Leroy Smith, also a resident of said village of Dowagiac. This suit is brought to recover $89.02, the balance unpaid on a bill of $389.02 for lumber furnished by plaintiffs in the construction of a house upon a farm situated just outside said village of Dowagiac, belonging to defendant. The cause was tried before a jury. The plaintiffs introduced testimony which tended to prove the following material facts,— and we state this testimony, as we should, most favorably to plaintiffs.
    The lumber was ordered by defendant’s husband who claimed to be acting as defendant’s agent, and it was sold on defendant’s credit. A short time before this lumber was furnished, defendant said to one of the plaintiffs that if she could procure a purchaser for the house in which she was then living, she would buy lumber from them (plaintiffs) to build another house. Shortly thereafter this house was sold, — though not to a customer furnished by plaintiffs, — the defendant purchased the farm heretofore mentioned, and soon thereafter the house, in the construction of which the material in controversy was used, was erected thereon. After most, though not all, of the material in question had been delivered, defendant came to plaintiffs’ place of business with her husband “and paid $300 on the bill.” Subsequently defendant sold the property upon which the house was erected and received payment therefor. Defendant introduced no testimony. The trial court left it to the jury to say whether the defendant’s husband had any agency to act for her. He charged them in effect that they might find her liable on the ground of ratification, and also that if defendant “ had knowledge of this material being furnished * * * upon her credit, if she did not desire to become liable * * * it was her duty promptly to disaffirm the conduct of her husband, and bring it to the notice of the plaintiffs.” The jury rendered a verdict for the plaintiffs for the full amount of their claim.
   Carpenter, J.

(after stating the facts). Defendant insists that the trial court erred in not directing a verdict in her favor- She invokes the rules that ‘ ‘ the declarations of an agent are not admissible to establish an agency;” and that “there can be no presumption of the husband’s authority to act for his wife.” Both these rules are conceded. Neither of them was violated in the trial of this case. Defendant’s previously declared intention of building a house, the payment she made on account of these materials, and the fact that they were sold on her credit are circumstances of significance, and they, taken in connection with the other circumstances in the case, justify, if they do not require, the inference of her liability. This holding is not inconsistent with the Michigan cases relied upon by defendant. Hillier v. Eldred, 91 Mich. 54, is of those cases the most favorable to defendant. In that case it was held that defendant, a married woman, was not responsible for material furnished by plaintiff and used in building a barn upon her land. That case is readily distinguished from this case. The material in question there was furnished, not on the credit of defendant, but on the credit of her son, and defendant never “paid a. dollar upon the contract or agreed to pay a dollar upon it.”

Defendant also contends that the trial court erred in charging the jury that they might find her liable upon the ground of ratification, and upon the ground that she remained silent knowing that this material was “being furnished upon her credit.” The precise ground of this complaint is that there was no evidence that defendant knew that the material was being furnished on her credit. It is true that there was no positive testimony of such knowledge, but the inference that defendant had such knowledge might properly be drawn from the testimony. From the fact that she went with her husband and paid $300 on the-bill — a bill charged to her by plaintiffs — it may be inferred that she had knowledge that the material was furnished on her credit.

No other complaint demands discussion.

The judgment is affirmed.

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


source: Caselaw Access Project

author: Grant, J

license: Public Domain

text:
    BOWEN v. CITY OF DETROIT.

    Municipal Corporations — Defective Street — Ice—Personal Injuries — Liability.
    In an action against a city for a personal injury received in consequence of slipping on a hummock of ice on a street crossing, testimony of a road foreman that he left the street in proper condition six hours before the accident happened is not so conclusive of defendant’s lack of negligence as to warrant directing a verdict in its favor, where plaintiff’s witnesses testify to the presence of the defect.
    Error to Wayne; Rohnert J.
    Submitted November 12, 1907.
    (Docket No. 151.)
    Decided December 30, 1907.
    Case by William H. H. Bowen against the city of Detroit for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Codd & Hall, for appellant.

      J. Walter Dohany ( Timothy E. Tarsney, of counsel), for appellee.

      Plaintiff, while walking across Third street, on February 20, 1904, from the Wayne hotel, in the city of Detroit, towards the Michigan Central depot, slipped, fell, and was injured. There had been a rain. The weather suddenly becoming very cold, ice formed over the street, and it was very slippery. The entire street, including crossings as well as River street which there forms a junction with Third, was paved. The street and crossings were upon the same level and of the same material. There were no gutters. From the center of the street to the curbs there was a gradual incline. The curb on each side was about 6 or 7 inches high. There was a catch-basin a few feet along the curb on River street, and another a few feet along the curb on Third street. The day was one of the coldest of the winter. Snow had fallen upon, and was mixed with, the ice. Plaintiff with three others came out of the hotel on River street, crossed to the opposite or west side of Third, and when within from 4 to 6 feet of the curb he fell.
    Plaintiff claims that a trench was dug about 18 inches wide, between these two catch-basins, through the snow and ice; that some of the ice and snow from the trench was thrown out across the walk, forming an elevation, and that for this condition of affairs the city was responsible. Plaintiff’s counsel state his claim as follows:
    “It is claimed by the plaintiff in this case that the ice in the street was on a level with the sidewalk, and if left alone would have formed a natural bridge, but that when a trench was dug out along the curb, 18 or 20 inches wide, and from 5 to 8 inches deep, this was a dangerous condition of the cross-walk which would subject the city to liability.”
    Plaintiff introduced an employé of the city, one Clemens, a road foreman, who testified to the slippery condition of the streets and sidewalks of the city and at the place in question; that he caused the ice and snow to be removed across Third street, in a direct line with the sidewalk on River street, from curb to curb, eight feet wide, and as near to the pavement as possible. This work was done on the mornings of the 19th and 20th. He testified that all that was left in that space, from curb to curb, was ice that was frozen to the pavement. The snow and ice from this eight-foot strip was thrown on the sides. He testified that there was no trench. On each side of the cleared space near the curb the ice and snow was thrown out so as to permit the water to run to the catch-basins. It was daylight, and, as the witnesses who were with the plaintiff testified: “There was not the slightest difficulty in seeing where we were going,— perfectly bright, as I remember it.”
    Plaintiff saw no obstruction. He testified that it was very slippery, and he was walking carefully; that “there was no difficulty in seeing right straight in front of me, where I was walking along.”
    Plaintiff’s witness Oahalan, who was accompanying him, testified that there was a trench, and that “the side of it toward the Wayne hotel was sloping with a thin covering of snow over it,” and that the ridge extended slightly above the curb an inch or two, to the best of his recollection.
    Another witness, one Ramsay, who accompanied plaintiff, testified that plaintiff slipped “on a kind of a little hillock of ice, five or six inches, as he observed it with his eye;” that the trench extended down near to the surface of the street. He further testified:
    “There was a path; it was right across the street in a direct line with the pavement; I should say it was six or eight feet wide, that led from curb to the other. We had lots of snow about that time and we could see where the snow had been swept to one side, and the coating on the street proper was-icy; there must have been a couple of inches of ice on the street.”
    On cross-examination he testified:
    “ There was not a great deal of rise. I noticed it after he fell. * * * I cannot tell now whether the rise was gradual or not. If there had been an abrupt rise of six or seven or eight inches, I would have noticed it.”

      The court directed a verdict for the defendant, holding that plaintiff’s own evidence showed that the street was in proper condition on the morning of the 20th, and that if there was any defect caused by deepening the trench or throwing up an obstruction during the day, there was nothing to show that the city was responsible for it, or had notice thereof sufficient to fix liability upon it. *

       Rehearing pending.

   Grant, J

.'{after stating the facts). The sole claim of the plaintiff is that the defendant city caused the obstruction by digging the trench and throwing the ice and snow across the path cleared for foot passengers. The court based its ruling upon the testimony of the witness Clemens, holding that there was nothing in the.case tending to cast doubt upon his testimony. In this we think the court erred. According tp the testimony of the witness Cahalan there was a ridge about eight inches high across the path, close to the trench, composed of ice and snow, which a jury might infer was thrown there by those who dug the trench and cleared the path. Mr. Clemens testified that the work was finished about six hours before the accident happened.

We are unable to say, upon this record, that the testimony of Clemens conclusively established the fact that he left the path free from obstruction from curb to curb a few hours before.

Judgment reversed, and new trial granted.

McAlvay, O. J., and Carpenter, Blair, and Moore, JJ., concurred.


author: Blair, J.

text:
    KNACK v. BERLIN.
    1. Attachment — Proceedings—Statutes—Construction.
    Proceedings by attachment being entirely statutory in their inception, resort must be had to the statute to ascertain their requisites, and they must, in all things essential, conform to the statutes on which they are founded.

      2. Appearance — Special Appearance — Effect — Attachment Proceedings — Justices of the Peace.
    A special appearance for the purpose of objecting to the jurisdiction is not such an appearance as will authorize a justice of the peace in an attachment case to appoint a day for the trial of the case under section 736, 1 Comp. Laws.
    3. Attachment — Justices of the Peace — Adjournment — Effect.
    Where a defendant in attachment not personally served appeared specially on the return day for the purpose of objecting to the jurisdiction, and consented to several adjournments for the purpose of arguing his motion to quash, and on the last adjourned day, his motion being overruled, withdrew !' from the case and refused to proceed further, upon which the justice adjourned the case until the next day, and on that day adjourned it under the statute (section 736,1 Comp. Laws) for more than 30 days, the justice, by the adjournment of one day, lost jurisdiction to proceed further.
    4. Same — Inventory—Sufficiency.
    An inventory attached to a writ of attachment describing the property as “ one carload of household furniture” is not sufficient to identify with reasonable certainty the property taken, more especially as the property is of a class exempt from execution.
    5. Same — Bond—Effect.
    The insufficiency of the inventory of property seized under an attachment is not affected by the fact that a bond was given by, and the property surrendered to, a person not a party to the proceedings, nor, so far as the record shows, representing defendant.
    Error to Wayne; Hosmer, J.
    Submitted November 12, 1907.
    (Docket No. 162.)
    Decided December 30, 1907.

      Attachment proceedings in justice’s court by Julius Knack against Jacob Berlin and John C. Hartz. There was judgment for plaintiff, and defendants appealed to the circuit court by writ of certiorari. The judgment was sustained, and defendants bring error.
    Reversed, and judgment entered for defendants.

      Sloman & Sloman, for appellants.

      Arthur H. Covert, for appellee.
   Blair, J.

Writ of error to review a judgment of the circuit court entered in compliance with the direction of this court “to render such a judgment as the defendant in error shall be entitled to,” etc. Knack v. Wayne Circuit Judge, 147 Mich. 485.

The suit was commenced in justice’s court January 21, 1904, by writ of attachment returnable February 2, 1904, The return of the officer was as follows:

“By virtue of the within writ of attachment, I, Henry Wiechmann, on the 21st day of January, A. D. 1904, at the city of Detroit, within said county, seized the goods and chattels of the defendant, Jacob Berlin, within named, which are inventoried in an inventory of which the annexed is a copy, and I hereby certify that I have made diligent search and inquiry and am unable to find the said Jacob Berlin within said county or his last place of abode, and, therefore, on the 27th day of January, A. D. 1904, because the said defendant could not be found or his last place of abode, I left a copy of the within attachment and of the said inventory, duly certified by me, with the Lake Shore & Michigan Southern Railway Company, a corporation, by delivering said copy to James MeKenney, local freight agent of the said Lake Shore & Michigan Southern Railway Company, a corporation, in whose possession I found the said goods and chattels, and I certified that said defendant has no last place of residence within said county and I further certify that said goods and chattels were delivered up to Moritz Berlin, upon receiving the bond herewith returned.
“Dated February 1, 1904.”

On the return day, defendant appeared specially and moved to quash on several grounds. The case was adjourned several times by consent for argument of motion to quash, until February 24, 1904, when motion to quash was overruled, and. the defendant refused to proceed further with the case. Upon cause shown, plaintiff adjourned the case until February 25, 1904, and on February 25, 1904, the case was further adjourned under the statute until March 28, 1904, at which adjourned date, defendant not appearing, the plaintiff took judgment against the defendant for $105.75 damages and $3.91 costs.

The 10th and 11th assignments of error, based upon the 10th and 11th allegations,of error in the affidavit for certiorari, are as follows:

“ 10th. Because said justice lost jurisdiction to render judgment in said cause by failing to continue said cause not less than thirty and more than ninety days from the return day of the writ of attachment, said defendant not having been personally served nor having appeared in said cause.
“1.1th. Because the adjournment from February 24th to February 25th, 1904, was irregular and ousted said justice of jurisdiction, inasmuch as the writ was not personally served and the defendant did not appear the justice should have continued the cause for not less than thirty and not exceeding ninety days.”

We are of the opinion that these assignments are well founded.

“ Proceedings by attachment are entirely statutory in their inception, and we must look to the statute to ascertain their requisites. Such proceedings have no foundation outside of statutes, and must therefore, in all things essential, conform to them.” Cary v. Everett, 107 Mich. 654.

See, also, Faul v. Beucus, 124 Mich. 25.

Section 736, 1 Comp. Laws, provides:

“ If the attachment shall not be personally served upon any of the defendants, and none of the defendants shall appear on the return day thereof, the justice shall continue the cause for not less than thirty, and not exceeding ninety days; and in such case, no hearing shall be had or judgment rendered thereon, until the expiration of that time, unless the defendant shall sooner appear and request a trial; in which case the justice shall appoint a day for the trial of such suit, and cause notice thereof to be given to the plaintiff.”

A special appearance for the purpose of objecting to the jurisdiction is not such an appearance as the statute contemplates. Wright v. Russell, 19 Mich. 346; Marr v. Cook, 147 Mich. 425.

The justice should have continued the case on the return day, as required by the statute, regardless of the special appearance and motion to quash. But as the defendants consented to the adjournments for argument of the motion to quash, they cannot complain of the failure of the justice to enter the statutory continuance during that period. They did not consent, however, to the adjournment from February 24th to February 25th, but had refused to take further part in the case. If the justice had thereupon continued the case for a period not less than 30 days and not exceeding 90 days from the return day, such continuance might have been unassailable by defendants. But there is no warrant in the statute for the adjournment of one day. On the contrary, the statute excludes such adjournment, and, by making the same, the justice lost jurisdiction to further proceed with the case.

We are also of the opinion that the third assignment of error is well founded. This assignment is based upon the third ground of the motion to quash and the third allegation of error in the affidavit for certiorari, and is as follows:

“ 3rd. Because no inventory was made by the constable ■under said attachment, as required by law. ”

The inventory attached to the writ described the property attached as follows:

“By virtue of a writ of attachment hereby annexed, issued by Fred. E. DeGaw, one of the justices of the peace of the city of Detroit and county of Wayne, I have, this 21st day of January,-A. D. 1904, attached the goods and chattels described in the annexed inventory as follows, to wit: One car load household furniture.”

The office of the inventory is to identify with reasonable certainty the precise property taken. Such identification is particularly necessary where, as in this case, the property seized is of a class exempt from execution.

The giving of the bond does not affect the question. The bond was given by and the property delivered to Moritz Berlin, who was not a party to the proceedings, nor, so far as the record shows, representing the defendant.

The inventory was not such as the statute required and. the service thereof did not confer jurisdiction upon the-court to proceed further with the case.

The judgment is reversed, and a judgment directed in favor of defendants, with costs.

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


author: Moore, J.

text:
    QUACKENBUSH v. CITIZENS’ INSURANCE CO. OF MISSOURI.
    1. Fire Insurance — Policy — Reformation — Misnomer of Insured.
    A married woman, being the equitable owner of land under a land contract, made a verbal application for insurance on the buildings thereon, disclosing her interest and that of her vendor, and a policy was issued in the name of her husband,
    ‘ ‘ loss if any payable to” the vendor “as his contract interest may appear.” A loss occurring, and the state of the title appearing, the insurer refused to pay on the' ground that it had insured only against the husband’s loss and the vendor’s as to such interest as he might show therein. On a bill by the wife to reform the policy and to compel payment of the loss, held, that a decree granting relief as to the vendor would not be disturbed on the defendant’s appeal.
    2. Same — Insurable Interest — Vendor.
    A vendor of land, holding the legal title, has an insurable interest in the buildings thereon.
    Appeal from Bay; Collins, J.
    Submitted November 12, 1907.
    (Docket No. 154.)
    Decided December 30, 1907.
    Bill by Mary H. Quackenbush and .Joseph P. Haffey, administrator of the estate of Nelson Gonyaw, deceased, against the Citizens’ Insurance Company of Missouri to reform the terms of a policy of insurance, and to compel its payment. From the decree rendered, defendant appeals.
    Affirmed.

      Porter & Haffey, for complainants.

      WeadocJc & Duffy, for defendant.
   Moore, J.

In January, 1905,verbal application was made to the agent of defendant, for insurance. Two policies were made out, dated and issued on the same day, one for $200 on the store building, the other for $450 on the dwelling house, and $350 on the household furniture therein. They were to run three years. A premium of $15.10 was paid therefor on the part of complainant Mary H. Quackenbush, no part of which has at any time been refunded by defendant, nor has there been any offer so to do on defendant’s part.

The title to the land on which the building stood was in Nelson Gonyaw, who obtained it by deed from Elizabeth Delill in 1904, who at the same time assigned to him her interest in a land contract to the same premises made between herself and complainant Mary H. Quackenbush a few months before. There had been paid on the contract the sum of $181, and there remained to be paid the sum of $696.60.

The deed contained this clause:

“ This deed is given subject to a land contract, dated November 12th, 1903, given by said Elizabeth Delill to Mary H. Quackenbush.”

Each of the policies contained the clause, “ Loss if any, payable to Nqlson Gonyaw as his contract interest may appear.” The land contract provided that the party of the second part therein should keep the buildings upon the lands contracted for “insured against loss and damage by fire, by insurers, and in amounts approved by the said party of the first part, and assign the policy and certificates thereof to the said party of the first part.” The insured premises were in possession of and occupied by the complainant Mary H. Quackenbush and her family, and it was known to defendant that Nelson Gonyaw had an interest therein.

Subsequent to said loss Nelson Gonyaw died. Joseph P. Haffey was appointed administrator of his estate, and as administrator represents the interest of the estate in the insurance. It was claimed on the part of complainant Mary H. Quackenbush that her interest in the insured premises, was correctly stated to the agent of defendant, and that her name should be substituted in the policies in the place of that of her husband, George Quackenbush, whose name was inserted in the policies, and that the policies should be reformed accordingly. In a general way the court found against this contention. It was further insisted that the interest of the estate of Nelson Gonyaw in the insurance on the buildings was valid, and should be enforced. The court found in favor of this latter contention and decreed that the defendant pay to said Joseph P. Haffey, as administrator aforesaid^ the loss occasioned to said buildings by the fire. From this finding and decree defendant appeals. Complainant Quackenbush did not appeal.

It is the contention of defendant that it made no contract with Mary H. Quackenbush. We quote from the brief:

“By the decree of the circuit court it is decided that' defendant made no contract with Mary H. Quackenbush, but because it did make a contract with George Quackenbush and provided therein that in case of loss to him, such loss should be paid to Nelson Gonyaw as his contract interest might appear and the fire occurred which resulted in no loss to George Quackenbush, the defendant must pay Nelson Gonyaw with whom it had no contract and with whom George Quackenbush had no contract, the amount owing to him by Mary H. Quackenbush with whom the defendant company had no contract. Such a result is impossible and the decree so finding should be reversed.”

We do not think this can be said to be an accurate statement of the situation. The parties are in dispute as to whether the policy was intended to be made in the name of Mary H. Quackenbush or of the husband. As she has not appealed that question cannot be re-opened here. The parties are not, however, in dispute about the intention to protect the insurable interest of Nelson Gonyaw. They are all agreed it was to be protected. The land contract provided for insurance for his benefit. The agent knew he had an insurable interest. The policies read; “ Loss, if any, payable to Nelson Gonyaw as his contract interest may appear.” Knowing the interest of Mr. Gonyaw, the defendant provided insurance for his benefit. It accepted the premium. It retained it and has it yet.

Mr. Gonyaw, as the owner of the record title, had an insurable interest. Hamilton v. Insurance Co., 98 Mich. 535 (22 L. R. A. 527). The agent could have learned just what that interest was. Whatever it was he undertook to insure, and was paid for doing so. See Hoose v. Insurance Co., 84 Mich. 309 (11 L. R. A. 340); Ahlberg v. Insurance Co., 94 Mich. 259.

The decree is affirmed, with costs.

McAlvay, O. J., and Carpenter, Grant, and Blair, JJ., concurred.


text:
    BABCOCK v. BABCOCK.
    1. Appeal and Error — Remedy—Decision on Demurrer.
    The proper remedy in case of the erroneous overruling of a demurrer to a bill in chancery is by appeal from the order, and not by appeal from the final decree.
    2. Equity — Bill—Sueeioienoy—Bill in Aid oe Execution.
    A bill alleging that complainant secured a decree of divorce and an award of alimony against her husband; and levied upon his interest in certain lands inherited from his father; that prior to her levy he conveyed his interest to his brother; that a fictitious claim was collusively allowed the brother against the estate of the father, and that proceedings are being taken to sell all the real estate of which the father died possessed to satisfy said claim and prevent complainant from' realizing on her execution, states a case for equitable relief, since complainant could not proceed to sell her husband’s interest in the land until his transfer had been set aside.
    '3. Judgments — Res Judicata — Fraud.
    The rule.that a court of chancery cannot review a decision of the probate court has no application to a case where the probate decree was procured by fraud, especially where it is being enforced to the prejudice of one not a party to it.
    Appeal from Saginaw; Gage (William G.), J.
    Sub-.* mitted November 12, 1907.
    (Docket No. 158.)
    Decided December 30, 1907.
    Bill by Kachel A. Babcock against Charles Babcock and Clarence Babcock to set aside a certain conveyance, and to enjoin the sale of property. From a decree for complainant, defendants appeal.
    Affirmed.

      T. P. Zander {James H. Davitt, of counsel), for complainant.

      Richard A. McKay {James Van Kleeck, of counsel), for defendants.
   Carpenter, J.

Complainant filed a bill of complaint in the circuit court for the county of Saginaw, in chancery, in which she averred that she obtained a divorce from the first-named defendant Charles Babcock and an award of alimony amounting to $1,176; that an execution to collect said alimony was levied upon certain real estate owned by the two defendants in undivided shares, they having inherited the same as heirs of their father, Lyman Babcock, who died February 2, 1899; that said Charles Babcock, her former husband, after the decree for the divorce and alimony was made, and before the execution was levied, fraudulently transferred his interest in said land to his co-defendant and brother, Clarence Babcock; that by collusion of the two defendants a fictitious claim of said defendant Clarence amounting to $2,780.50 was allowed against the estate of his father, said Lyman Babcock, and that proceedings are being taken to sell all the real estate of which said Lyman Babcock died possessed to satisfy said claim and thereby prevent complainant from realizing on her said execution. The bill prayed for a decree setting aside the conveyance from defendant Charles to defendant Clarence, and for an injunction preventing the sale of the real estate to satisfy the claim of Clarence.

Defendants filed a demurrer to said bill upon the ground that complainant did not make a case for equitable relief. This demurrer was overruled and defendants given permission to answer. They filed no answer. Their default was taken and the case heard upon testimony taken in open court, and a decree rendered in complainant’s favor.

From that decree defendants appeal, and the only complaint they make is this: That the bill does not state a cause of action.” The grounds of this complaint are no other than those raised by their general demurrer. Perhaps we might answer defendants’ complaint by saying that the only proper way in which to raise this question was by appealing from the order overruling their demurrer. We think it best, however, to answer it by saying that the bill did state a case for equitable relief. Complainant could not properly proceed to sell her husband’s undivided interest in the land on which she had levied her execution until his transfer of the same had been set aside. See Cranson v. Smith, 47 Mich. 189. Her only way to thwart the conspiracy of the two defendants by which it was sought to sell the land in payment of the fictitious claim of Clarence was by this proceeding in equity. The point made by the defendants that a chancery court cannot review the decision of the probate court has no application to a case where that decision is procured by fraud (see 2 Freeman on Judgments [4th Ed.], § 489), especially where it is being enforced to the prejudice of one who was not a party.

The decree is affirmed.

McAlvav, C. J., and Grant, Blair, and Moore, JJ., concurred.


text:
    DRAKE v. INTERNATIONAL HARVESTER CO. OF AMERICA.
    1. -Justices of the Peace — Certiorari — Review — Questions Considered.
    On certiorari to review a judgment of a justice of the peace, the circuit court can reverse the judgment only for some error assigned in the affidavit for the writ.
    2. Appeal and Error — Review—Limitation by Record.
    On appeal from a judgment of the circuit court on certiorari to a justice of the peace, this court can only consider such questions as are shown by the record to have been properly raised in the circuit court; and where the affidavit for certiorari is not in the record, no question for review appears.
    3. Same — Record—Remand—Amendment.
    This court will not entertain a motion to remand and correct a record on appeal in aid of an appellant who is not seeking a reversal on a meritorious ground.
    4. Same — Review—Meritorious Question — Presumption—Contract for Services.
    Where a plaintiff suing for services rendered was prevented from proving the contract upon which he was employed by reason of the death of defendant’s agent who employed him, whereupon he proved the services and their value and recovered upon the quantum meruit, defendant’s ground of reversal that it must be presumed that the contract with defendent’s agent provided for compensation, whence there could be no recovery upon the quantum meruit, is not meritorious, unless plaintiff agreed with defendant’s agent to receive less than adequate compensation, an agreement not to be presumed.
    Case made from "Wayne; Brooke, J.
    Submitted November 13, 1907.
    (Docket No. 165.).
    Decided December 30, 1907.
    Assumpsit by J. Walter Drake against the International Harvester Company of America for services rendered. There was judgment for plaintiff, and defendant appeals.
    Affirmed.

      Walters & Walters, for appellant.

      J. Walter Drake, in pro. per.
   Carpenter, J.

This suit was commenced in justice’s court. It was brought for the recovery of attorney fees. Plaintiff was the only witness. He testified that there was an agreement entered into between himself and One Levi G. Merriman, general agent for the defendant; that before the commencement of this action the said Levi G. Merriman died. Defendant objected to the admission of any testimony relative to the agreement for services performed under said agreement as being equally within the knowledge of the deceased. Plaintiff thereupon introduced testimony showing the services he rendered and their value, and was permitted to recover upon the quantum meruit. The case was taken to the circuit court by a writ of certiorari and the judgment of the justice affirmed. It is brought before us for review upon a case made, and we are asked to reverse the judgment of the circuit court upon the ground that it is to be presumed that the agreement made between plaintiff and defendant’s general agent provided for the former’s compensation, and therefore there can be no recovery on the quantum meruit. We cannot consider this question. We can only consider such questions as are shown by the record to have been properly raised in the circuit court. What those questions were does not appear. They would be shown by the errors assigned in the affidavit for the writ of certiorari, and for no other error could the circuit court reverse the judgment. See Higley v. Lant, 3 Mich. 612; Fowler v. Railway Co., 7 Mich. 79; Witherspoon v. Clegg, 42 Mich. 484. That affidavit is not contained in the record in this court, and we have no means of knowing what errors were assigned therein.

If defendant were seeking to reverse the judgment upon a meritorious ground, we might entertain a motion to remand and correct the record. But it is not seeking to reverse the judgment upon a meritorious ground. Its ground of reversal is not meritorious unless plaintiff agreed with defendant’s general agent to receive less than adequate compensation for his services. It is not to be presumed that he made that agreement.

The judgment is affirmed.

MoAlvay, C. J., and Grant, Blair, and Moore, JJ., concurred.


text:
    PEOPLE v. CRUCIBLE STEEL CO. OF AMERICA.
    1. Corporations — Foreign Corporations — Doing Business without Admission — Penalty—Stat ute — Amendment—Effect.
    Act No. 310, Pub. Acts 1907, amending Act No. 206, Pub. Acts 1901, as amended, providing the terms upon which foreign corporations may be admitted to do business in this State, and providing a penalty for noncompliance, by dividing the amended act into sections and retaining the phraseology of that part of the act fixing the penalty, by which the penalty is prescribed for violations of “ this section,” repeals the penalty as to violations of other sections of the act, and puts an end to suits previously brought thereunder.
    2. Statutes — Construction—Ambiguity .
    Where the language of a statute is plain and unambiguous as it reads, the courts are not authorized to change its meaning by substituting another word for the one the legislature used.
    Certiorari to Ingham; Wiest, J.
    Submitted November 15, 1907.
    (Docket No. 74.)
    Decided December 30, 1907.

      Assumpsit by the People of the State of Michigan against the Crucible Steel Company of America for the amount of a statutory penalty. There was an order overruling a demurrer to the declaration, and defendant brings certiorari.
    Reversed, and demurrer sustained.

      H. M. & D. B. Duffield {C. A. Kent, of counsel), for appellant.

      Thomas, Cummins & Nichols, amici curise. •

      John E. Bird, Attorney General {Arthur P. Hicks, of counsel), for the people.
   Moore, J.

This is certiorari to review the action of the circuit judge in overruling a demurrer to a declaration filed as the commencement of a suit wherein the people of the State of Michigan are plaintiffs and the Crucible Steel Company of America is defendant.

In the declaration is the following:

Wherefore the said defendant became and isindebted. to the plaintiff in the penalty of one thousand dollars per month prescribed by said section 1 of Act No. 206 of the Public Acts of 1901, amended as aforesaid, for each and every month during which it continued to carry on business in Michigan, as aforesaid, without complying with said section, which said penalty amounted, on the twenty-ninth day of October, 1906, to the sum of, to wit, sixty-one thousand dollars ($61,000), and being so indebted, the said defendant then and there undertook and promised to pay said penalty; yet the defendant, although often requested so to do, has not paid said penalty or any part thereof to said plaintiffs, but has neglected and refused, and still neglects and refuses, to make such payment, all to the damage of the plaintiffs,” etc.

Several reasons are given in the demurrer, but in our view of the case it will be unnecessary to discuss them, as it is conceded that the case must be controlled by the provisions of Act No. 310, Public Acts of 1907. The question, then, is whether said act operates as a repeal of the provision for penalties for which the suit is brought. This act was passed after the case was submitted in the court below, but counsel are all agreed that the case ought to be disposed of as though that question was raised by the demurrer. Section 5 of this act reads as follows:

“ Every corporation which has paid a franchise fee and been admitted to do business in this State, which shall thereafter increase its authorized capital, or shall increase the proportion of its capital stock represented by property used and business done in Michigan, shall within thirty days after such increase file an additional statement with the secretary of State and pay an additional franchise fee of one-half of one mill on each dollar of the amount of increase of its capital stock represented by property owned and business done in Michigan. And any such corporation shall at any time when requested by the secretary of State file an additional statement, under oath, of at least two of its officers, showing the proportion of its property used and business transacted in Michigan. Every corporation subject to the provisions of this section which shall neglect or fail to comply with its requirements shall be subject to a penalty of not less than one hundred dollars nor more than one thousand dollars for every month which it continues to transact business in Michigan without complying with the requirements of this section, to be recovered by action in the name of the people of the State of Michigan in any court of competent jurisdiction.”

Section 6 makes a foreign corporation incapable of making valid contracts in the State “until it shall have fully complied with the requirements of this act, and at the time holds an unrevoked certificate to that effect from the secretary of State.”

Section 7 makes it unlawful for any person to act as an agent for a foreign corporation not authorized to do business in this State and inflicts heavy penalties for a violation of the provision. The last two sections are not in the prior act. No mention is made of penalties in any other part of the act. The penalties for which suit is brought are provided for in section 1, Act No. 206, Pub. Acts 1901, as amended by Act No. 34, Pub. Acts 1903, the material parts of which read as follows:

“ Section 1. It shall be unlawful for any corporation organized under the laws of any State of the United States (except the State of Michigan) or of any foreign country, to carry on its business in this State, unless it shall first have filed and recorded, in the office of the secretary of State, a certified copy of its charter, or articles of incorporation, and have filed evidence of appointment of an agent in this State to accept service of process and have paid to the secretary of State the requisite filing and recording fees and franchise fees in amount and to be determined as follows: Such corporation, by its president, secretary, treasurer and superintendent, or any two of them, shall make and file with the secretary of State a statement duly sworn to by at least two of such officers, in such form as the secretary of State may prescribe, containing the following facts: * * *
“ Every corporation which has paid a franchise fee and been admitted to do business in this State, which shall thereafter increase its authorized capital, or shall increase the proportion of its capital stock, represented by property used and business done in Michigan shall within thirty days after such increase file an additional statement with the secretary of State, and pay an additional fee one-half of one mill on each dollar of the amount of increase of its capital stock represented by property owned and business done in Michigan, and any such corporation shall, at any time when requested by the secretary of State, file an additional statement, under oath of at least two of its officers, showing the proportion of its property used and business transacted in Michigan. Every corporation subject to the, provisions of this section which shall neglect or fail to comply with its requirements, shall be subject to a penalty of one thousand dollars for every month that it continues to transact any business in Michigan, without complying with the requirements of this section, to be recovered by action in the name of the people of the State of Michigan in any court of competent jurisdiction.”

It is the claim of the attorney general and we quote from the brief:

“ Our contention is, however, that it is so perfectly clear from the reading of the act of 1907, especially with reference to the act which it amends, that it was the intention of the legislature to have the penalty provided in section five of the amended act apply to violations of the provisións of the preceding sections, that the word section as used in section five must be held to mean act, or, to express it in another way, that the penal provision of the act of 1907 should be applied just as if the legislature had not divided the subject-matter of section one of the original act into five sections by the amendment. Any other construction than the above makes the act of 1907 a senseless mass of unenforceable provisions.”

It is conceded that unless the word section,” in section 5 of Act No. 310, Pub. Acts 1907, can be construed as though it read “ act,” that this suit must fail. An inspection of Act No. 310 shows that its verbiage is not ambiguous. Upon its face it is full and complete. It is not for us to say the legislature intended the penalties provided in section 5 to apply to any and all violations of the provisions of the act, when the language is:

“ Every corporation subject to the provisions of this section which shall neglect or fail to comply with its requirements, shall be subject to a penalty,” etc.

We cannot assume the legislature made a mistake and used one word when it in fact intended to use another. The language of the statute is plain as it reads and we do not feel authorized to change its meaning by substituting another word for the one the legislature used. Endlich on Interpretation of Statutes, § 4; 23 Am. & Eng. Enc. Law (1st Ed.), p. 299; Handy v. Township of Meridian, 114 Mich. 454.

The judgment is reversed, and the demurrer sustained.

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


author: Montgomery, J.

text:
    WITHAM v. CLINTON CIRCUIT JUDGE.
    Appeal and Error — Chancery Appeals —Time —Extension-Statute — Construction.
    Act No. 340, Pub. Acts 1907, does not provide that a chancery appeal must in all cases be claimed before the expiration of 40 days, but section 6 of the act authorizes the court or judge to extend the time for filing a claim of appeal not exceeding one year from the filing of the decree.
    Mandamus by Mary Witham to compel Kelly S. Searl, circuit judge of Clinton county, to vacate an order extending time for taking an appeal.
    Submitted December 10, 1907.
    (Calendar No. 22,607.)
    Writ denied December 30, 1907.

      William M. Smith, for relator.

      Lyon & Moinet, for respondent.
   Montgomery, J.

The relator was granted a decree in the circuit court for the county of Clinton, in chancery, on the 1st day of August, 1907. Thereafter, on the 29th of October, 1907, the defendant in that case filed a claim of appeal, and on the same day filed a motion asking the circuit judge to extend the time for filing claim of appeal, and to extend the time for settling the testimony in the case. This motion was granted. By this application the relator seeks to raise the question of the authority of the circuit judge to extend the time for taking an appeal from a decree in chancery, the contention being that, since the taking effect of Act No. 340 of the Public Acts of 1907, an appeal must be made in all cases within the 40 days prescribed by section 2 of that act, and that no authority exists for extending the time beyond the 40 days.

The section referred to, so far as material, reads as follows :

“ Any person conceiving himself aggrieved by the decree of any court in chancery may, within forty days after the filing of the decree, claim an appeal from said decree to the Supreme Court of the State of Michigan by filing a written claim of appeal with the register of the court in which the decree complained of was rendered. * * * If the written claim of appeal herein provided for is not filed with the register in chancery as aforesaid an appeal may not thereafter be taken from the decree.”

The other provision which bears upon the subject is section 6: ■

“The trial court or any judge thereof or the Supreme Court or any judge thereof may, upon cause shown and reasonable notice given, extend the time provided in this act for the preparation, filing or service of any papers herein provided to be prepared, filed or served: Provided, That the time shall not be extended for the taking or perfecting of any appeal so that more time may be consumed thereby than one year from the filing of the decree.”

Counsel for relator correctly says that this section is in the nature of a proviso to section 2. The contention is, however, that if the construction which the circuit judge placed upon section 6, viz., that it confers authority to extend the time for taking an appeal, be adopted, that this rendered nugatory the last clause of section 2 above quoted. We do not think that this necessarily follows. Section 2 standing by itself relates to an appeal upon the party’s own initiative. It is to be construed in connection with section 6, and, as so construed, the last clause of section 2 simply forbids an appeal after the time fixed by the statute by the party’s own initiative and without an order from the court such as is provided for in section 6. There is little room to doubt what is meant by the language of section 6. It authorizes the extension of time for the preparation, filing or service of any papers herein provided to he prepared, filed or served, with the proviso that the time shall not be extended for the taking or perfecting of any appeal so that more time may be consumed thereby than one year from the filing of the decree.

The old law relating to appeals, section 551 of the Compiled Laws, provided that—

“ If the appeal shall not he claimed, and such oi'iginal. bond filed within the time above limited therefor, no appeal shall be allowed: Provided, That in such case the court in which such cause shall have been heard, or the judge thereof at chambers, shall have power on special motion, and a proper showing, to grant an extension of not over forty days for taking, and perfecting such appeal,” etc.

Under this statute the power to extend time has been exercised for many years. By the new act of 1907 instead of embodying these two provisions in a single section with a proviso, the substance of the same provisions is found in two sections; but the construction should not necessarily be different.

The circuit judge properly exercised the power objected to, and the application will be denied.

McAdvay, C. J., and Ostrander and Moore, JJ., concurred. Hooker, J., concurred in the result.


author: Me Alva v, J.

text:
    ST. HELEN SHOOTING CLUB v. BARBER.
    1. License — Construction—Revocability.
    An agreement by which defendants for a valuable consideration were sold a platted lot, with the privilege of shooting over other lands of their vendor, was not a mere license, revocable at will, but a contract of which specific performance might be decreed.
    S. Corporations — Contracts—Ultra Vires — Estoppel.
    Where a corporation solicited a contract, received, accepted, and used the consideration, and permitted the other contracting party to exercise the privileges bargained for without protest, it, and also its grantee, is estopped to deny its authority to enter into the contract.
    3. Same — Notice to Agent — Sufficiency.
    Where the agent of a corporation acquiring shooting rights in certain lands had notice that defendants had previously been _ granted similar rights by the owner of the lands, but, notwithstanding such notice, limited his inquiries to the only person interested in concealing from him the extent of defendants’ rights, and relied upon his statements and the public records, the corporation cannot claim, as against defendants, the rights of a bona fide purchaser.
    Appeal from Roscommon; Sharpe, J.
    Submitted January 8, 1907.
    (Docket No 1.)
    Decided January 6, 1908.
    Bill by the St. Helen Shooting club against Anson A. Barber and others to enjoin the entering, trespassing, and shooting game upon complainant’s property. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Willis Baldwin and JEJ. 0. Grosvenor, for complainant.

      Geer, Williams & Halpin, for defendants.
   Me Alva v, J.

This is an appeal by complainant from a decree entered in the circuit court for Roscommon county, in chancery, dismissing its bill of complaint filed for the purpose of en j oining defendants from entering, trespassing, and shooting game and wild fowl upon the waters and marshes of St. Helen Lakes in said county. Complainant is the lessee in perpetuity of the exclusive rights to said privileges by written lease from the St. Helen Development Company, the owner of the fee to the lands surrounding said lakes. Defendants claim prior rights under a certain writing made by said Development Company to them more than two years prior to said leasing, and'of which rights although said writing was not recorded they claim complainant had sufficient notice to defeat its claim as a bona fide purchaser for a valuable consideration without notice. The following is the writing relied upon by defendants:

“St. Helen, Mich., September 26th, 1902.
“ The St. Helen Development Co. agrees with Chauncey Tibbits, Charles Holenbeck, Joseph Edmunds, William Deeter, A. G. Barber and A. A. Barber, all of Lapeer, Mich., and all members of the St. Helen Club as follows:
“That so long as the said members observe the rules and regulations of the club, a camp and shanty shall be maintained for them at the point known as Camp seven, which is located on sec. 30, 23-1. The said St Helen Co. will build the shanty for the said parties, and rent it to them at a cost this duck season of $10, and thereafter at $5 per season, the said parties having the right to store their boats and camp equippage therein, which the St. Helen Development Co. agrees to protect with all the diligence commensurate with the cost of rental. Or the boats and. equippage may be stored at the club house. The St. Helen Development Co. agrees that at any time the ground at Camp seven is platted into lots by them, one lot shall be given to the said parties in exchange for one of the lots to be deeded them around the St. Helen Club House. The St. Helen Development Co. further agrees that the yearly dues of the St. Helen Club shall never be more than $3 per year to each of the members above named, and as long as these dues are paid and the rules and regulations observed, the said members shall enjoy the privileges of fishing and shooting as far as in the power of the St. Helen Development Co. lies, and shall also have the privilege of passing over the lands of the St. Helen Development Co. to reach Camp seven.
“St. Helen Development Co.,
“By John Carter, President.”

The circumstances which led up to the execution of this agreement and the facts of the case necessary to an intelligent consideration of the case are as follows. The St. Helen Development Company, a corporation, and the common grantor of the parties to this suit, on September 13, 1902, sent to defendant Barber the following letter:

“ St. Helen, Mich., September 13th, 1902.
“Mr. A. A. Barber,
“ Lapeer, Mich.
Dear Sir: We are informed that you are one of sportsmen who are in the habit of coming to St. Helen for the duck shooting. In this connection we beg to inform you that our company has purchased all the land surrounding the lake and for several miles each way from it, 65,000 acres in all. Desiring to protect the sport as long as we can, we have organized the St. Helen Club whose members will be accorded all the privileges of the shooting and fishing. The membership being limited to one hundred members is rapidly filling up, and if you desire to enjoy the sport with us this fall you are cordially invited to join the club.
“A club house is being built which will be completed by Oct. 1st. It is standing in a beautiful situation, with a view of First Lake. One hundred cottage lots are laid out around the club house, each member being entitled to one, the choice of which will be decided by lot. The cost of membership is $25, lot included. Members may either provide for themselves or may stay at the club house where board and room may be secured at the rate of one dollar per day. Members may camp upon their lot at the club grounds or upon any other site they may select. The shooting, however, will be controlled by rules adopted by the club.
“The club owns a twenty-five foot naphtha launch and boats will be provided for members who do not own one. The comfort of the members will be looked after in every possible way, which fact will be appreciated by all who have been here previously for the shooting.
“ Should you desire to become a member, send draft to the St. Helen Development Co. and a membership ticket will be forwarded to you. If you have friends in your town who are interested in sport, we would be pleased to hear from them also, as we wish to know just how many to provide for this season. Shells will be handled at the club, so that should you come, you need not be loaded down in bringing them.
“Trusting to hear from you in a few days, we beg to remain,
“Yours truly,
“St. Helen Development Co.,
“By F. G. Clark, Secretary.”
That Mr. Barber replied to this proposition on September 19, is shown by the following letter.
“ St. Helen, Mich., September 21, 1902.
“A. A.Barber,
“ Lapeer, Mich.
Dear Sir: Your letter of the 19th received and contents noted, and will say that the place where Jno. Troup camped is out of the ground laid off for club lots. Therefore we cannot grant your request. The lots for club members would make a desirable place for tent, and as to annual dues our club has none, excepting three dollars per year to keep up lots and have them uniform. Of course our rules will comply with the game law.
“ Hoping you will become a member under these conditions, I beg to remain, Yours resp.
“ St. Helen Development Co.,
“ F. G. Clark, Sec.”

Mr. Barber, who lives at Lapeer, Michigan, then went to St. Helen to meet Mr. John Carter, president of the Development Company, with reference to the transaction. Mr. Carter was not there and an appointment was made by telegraph to meet him at the Frazer House in Bay City, where the agreement, Exhibit No. 1, was drawn up and signed by Carter on behalf of said company, and delivered to defendant Barber, who acted for himself and the others named therein. All of which persons except A. G. Barber are defendants in this suit. Mr. Barber paid Carter $50 at the time, and three days later, on September 29, 1902, sent a draft for $100, the balance of the consideration, payable to the St. Helen Development Company, which was received, indorsed, and paid to it. This was full payment for the six persons named in the agreement. Cards of membership were issued to Barber and to each of the other defendants. These cards read as follows:

“St. Helen Club, St. Helen, Mich.
“A. A. Barber is a member of the St. Helen Club, of-:St. Helen, Mich.
“F. G. Clark, Secretary.
“This membership entitled the holder to all the privileges of the club house and other privileges to be granted by the St. Helen Development Co. The club house will be maintained by the St. Helen Development Co. for the use of members of the St. Helen Club and their friends, and will be governed by rules adopted by the board of directors.”

President Carter afterwards wrote defendant Barber the following letter modifying the agreement of September 26th:

“Bay City, Mich., October 2, 1902.
“A. A. Barber, Esq.,
“Lapeer, Mich.-
Dear Sir: You will remember that I told you that I could not promise you Camp eight for your party, so you settled on Camp seven. Circumstances have transpired since then that enables me to offer you Camp eight. Other parties are anxious for it, but I decided to give you the refusal. Your contract could stand in all other particulars, simply substituting eight for seven. Should you desire to change let me know by Saturday, sending your answer to us at Beaver Lake post office. We will then hold the camp for you and fix it up as comfortable as we can.
“Yours truly,
“John Carter.”

In 1902 a large painted sign was put up near the depot at St. Helen station, reading substantially as follows, “Positively no shooting on St. Helen Lake or these grounds except by members of St. Helen Club.” This depot is not a great distance from the lake.

The Development Company built the club house mentioned in the agreement with the money received from defendants and others. Its teams hauled defendants’ boats and baggage to the lake, and it sold camp supplies to them. Defendants’ boats were stored under the club house. The shanty spoken of was not built for defendants but they were given the use of the building called Camp 8.

Claiming the right to hunt and shoot wild fowl upon these lakes and marshes, and all other rights granted by the agreement made with the St. Helen Development Company, in consideration of the money paid therefor,. defendants have continued each season since to hunt and shoot on these waters, and to camp on these premises.

No St. Helen Club was in fact ever organized. The contract was > not recorded. Members of complainant club first saw the writing after this suit was brought. In August, 1904, defendant Barber received from the Development Company the following notice:

“St. Helen, Michigan, August 25, 1904.
‘ ‘ Dear Sir: You are hereby notified that all the shooting privileges of Lake St. Helen have been leased in perpetuity to the St. Helen Shooting Club, organized under the laws of the State of Michigan.
“As a member of the St. Helen Club you are entitled to the privileges of the Club House, but you will not be allowed to shoot upon the lake, as this will be under the jurisdiction of the new club.
“ If this ruling is not perfectly satisfactory to you, perhaps-you may desire to resell your membership in the St. Helen Club to us. If so will you kindly let us hear from you, fixing price upon your membership.
“Yours truly,
“St. Helen Development Co;,
“Per F. G. Clark, Sec’y.”

Defendants were warned off the lake in the fall of 1904 by Clark, secretary of the Development Company, who represented complainant. Before the organization of complainant club some of those who were actively interested in it had been acquainted with these lakes and for several years had hunted and fished there. Most of them resided at Monroe, Mich. One of their number, Mr. Bauch, acting for himself and six others, all contributing equally, purchased the tax titles from the State of Michigan on these and other lands for $550. He began proceedings for writs of assistance against the Development Company. Negotiations followed, and the organization of the complainant club was brought about. Bauch deeded his interest to the Development Company, and it gave complainant the lease under which it now claims. This in terms is a lease in perpetuity giving complainant exclusive rights to hunt and shoot upon these waters and submerged lands.

Messrs. Carter and Clark, president and secretary of the Development Company, took one-half of the shares of stock in complainant club. The Bauch deed to the Development Company, the lease from it to complainant, and the organization of complainant. club were contemporaneous.

The important and determining question in this case is the construction this court will give to this written agreement. The claim of the complainant is that this writing is simply a license revocable at the will of the licensor; that it obtained its lease in good faith for a'valuable consideration and without notice of defendants’ claim to rights in the premises. On the part of defendants it is urged that this writing and other writings in evidence and the testimony disclosed in the record shows that-they acquired an interest in this property for a valuable consideration. That they have continued in the possession and enjoyment of such interest since its acquirement, of which possession and exercise of rights complainant had notice. This agreement requires extrinsic evidence for its complete understanding. When read in-connection with the first letter written to defendant Barber and the other evidence bearing upon it, the fact appears that each of these parties defendant was buying one of the lots already platted and paying cash therefor as well as for the privileges of hunting and shooting. There is no testimony in the case contradicting this fact.

Taking into consideration all of the facts, we are not left in doubt as to the meaning and' intent of the parties. The interest acquired by defendants, they having fully performed on their part, was such that, as between the parties, specific performance would be decreed against the Development Company. "We therefore hold that this interest was not a mere license revocable at the pleasure of the Development Company.

Complainant claims that no authority is shown for the execution of this agreement by the Development Company. The record shows that it solicited the contract, received and accepted the money of defendants and, as the record shows, of many others, built the club house, as may be inferred from the record, with this money; permitted defendants to enter its premises and exercise the rights granted; stored and cared for their property and has never raised any question as to the validity of the contract. This company would be estopped from denying its authority and its grantees cannot question it.

As to the notice to complainant of the rights claimed by defendants it will be unnecessary specifically to point out and quote the testimony supporting defendants’ contention. Messrs. Girosvenor and Baldwin were the attorneys for the organizers of the club who lived at Monroe and had in charge the negotiations of purchase and the matter of title, and it was left to them to see that it was all right. The trespass sign was seen by Mr. Grosvenor and the matter of the membership cards was discussed by him with President Carter the year the club house was built, 1902. He had heard that lots were to be deeded or given to the card holders, and had asked Carter what rights had been granted to them. He saw many of these cards and Carter told him where these lots were located. When complainant club was organized the matter was discussed with Carter. Rauch stated that Carter told him that he would see these parties who held passes and fix it up with them. Grosvenor testified that Carter asked him what “was the thing for him to do with these card holders;” that he knew those who received cards paid cash for them and that the club house was expected to be built from these funds. He knew some of defendants and that they were interested. He had seen some of them shooting on the premises before and after the organization of the clubs. Carter is the only man the attorneys talked with in this relation, and as the court in his opinion says, “He was the only man interested in concealing the facts as to the matter about which the inquiry was made.”

There is ample testimony in the case to warrant the trial court in finding that complainant had sufficient to put a prudent, honest man upon his inquiry. Converse v. Blumrich, 14 Mich. 109, 120; Jackson, etc., R. Co. v. Davison, 65 Mich. 416; 2 Cook on Corporations (5th Ed.), § 727.

The attorneys relied upon Carter’s statements and the records of Roscommon county. It appears from the testimony of complainant’s attorneys and other members that this question of the rights of any one else to shoot on these lakes was considered to be the important one, yet, with the indications all pointing to some rights in defendants and others, information easily ascertainable from those who could furnish it was not sought. Hains v. Hains, 69 Mich. 587.

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

Grant, C. J., and Blair and Ostrander, JJ., concurred. Hooker, J., concurred in the result.


author: MoAlvay, J.

text:
    NEYENS v. WORTHINGTON.
    1. Contracts — Simultaneous Writings — Construction To- : GETHER.
    All writings executed at the time of entering into a contract and relating to the transaction are to be construed together.
    2. Corporations — Foreign Corporations — Doing Business in State — What Constitutes.
    The entering into a contract in this State by a foreign corporation, by which it authorizes a citizen of this State- to establish and further its business, to look after business already established, to sell its goods, and to make similar contracts with others on its behalf, constitutes “doing business” within this State within the prohibition of Act No. 34, Pub, Acts 1903, § 7, and no action can be maintained upon such contract by the corporation or its assignee with notice if the corporation has not been admitted to do business in this State under the statute.
    3. Same — Interstate Commerce.
    Such contract is not an agreement relative to interstate commerce.
    4. Bills and Notes — Action—Bona Fide Holder — Evidence— Sufficiency.
    In an action on a promissory note given to one not entitled to maintain suit in the courts of this State, evidence examined, and held, sufficient to go to the jury on the question whether plaintiff was a bona fide holder.
    Error to Livingston; Miner, J.
    Submitted April 15» 190'/'.
    (Docket No. 116.)
    Decided January 6, 1908.
    Assumpsit by Leonard M. Neyens against John W. Worthington on a promissory note. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Arthur H.. Covert, for appellant.

      Shields & Shields, for appellee.
   MoAlvay, J.

This is an action in assumpsit upon a promissory note given by defendant to Acme Food Company, plaintiff’s assignor, August 12, 1904.

“$100.00. Oak Grove, Michigan, August 12, 1904.
“On or before six months afterdate, for value received, I promise to pay to the Acme Food Company (a corporation organized and existing under the laws of the State of Illinois) or order, the sum of One Hundred and no-100 Dollars, with interest at the rate of seven per cent, per annum from date hereof until paid.
‘ ‘ Payable at the City National Bank, Lansing, Michigan. The indorsers, sureties and guarantors severally waive presentment for payment, protest, notice of nonpayment and diligence, and agree that time of payment may be extended without affecting their liability.
“John W. Worthington.”

Indorsed on back, “Acme Food Company, by Geo. H. Simpson, Treasurer.”

The parties also entered into the following agreement:

“ This contract made and entered into this 12th day of August, 1904, by and between the Acme Food Company (incorporated), of Chicago, Illinois, as party of the first part, and John W. Worthington of Oak Grove, and State of Michigan, as party of the second part.
“Acme Food Company, party of the first part, hereby agrees to furnish John W. Worthington, party of the second part, Acme Stock and Poultry Food at the reduced rate herein specified, to wit:
“It is hereby agreed that the party of the first part is to furnish to the party of the second part Acme Food in 3-lb. and 5-lb. packages as well as 10-lb. pails, at a discount of 15 per cent, from the list prices, which are as follows: ( Giving schedule of prices.)
“And also to furnish Acme Food in 25-lb. pails, 50-lb. quarter barrels, 100-lb. half barrels, and 200-lb. barrels in any quantity and to be shipped in such quantities of the above sizes as he may order at $5.00 per cwt. f. o. b. Chicago, Illinois, and to also furnish Acme Poultry Food at a discount of 15 per cent, from the list prices which are as follows: (Giving schedule of prices.)
“Itis also agreed that the party of the second part agrees to sell Acme Food when selling to dealers and sub-agents at the following prices: (Giving schedule of prices.)
“Acme Poultry Food: (Giving schedule of prices.)
“And when any of said goods are sold at retail they are to be sold at the regular prices covering same which are as follows: ( Giving schedule of prices.)
“The party of the second part is also instructed to sell Acme Food strictly on its merits, as guaranty provides, and to warrant and guarantee said food to each customer if used and fed according to the printed directions. And we agree in all cases where your customers have fed the food as aforesaid, and furnish us with their affidavit on the printed form furnished by us, to ship to you free of charge, f. o. b. on the cars at your station, as many pounds, not exceeding 500 lbs. to a single customer, as shall appear by such affidavit to have been used by such customer. It is understood that this warranty shall cover in each case only the first sale made to each individual customer. All blank spaces in said affidavit must be filled in ink before the same is executed, and the party ■executing the same must clearly and explicitly state that he has fed the said Food in accordance with our instructions, detail the manner of feeding same, and that his stock has derived no benefit therefrom, otherwise this warranty is of no force or effect. Blank affidavits to be furnished to the party of the second part upon application.
“ It is further agreed that the party of the first part is to furnish 50 booklets with each 3,000 pounds of Acme Food or at that pro rata; such other advertising matter as deemed good business to party of the first part.
“ It is further agreed by and between the parties of the first part that they will not sell or ship Acme Food or Poultry Food into the county of Livingston, State of Michigan, without the consent or order of the party of the second part during the lifetime of this contract.
“Party of the second part agrees to look after and to attend to the needs in the Acme Food line of customers already established in the county of Livingston by the Acme Food Company, or agrees to use his best efforts towards the establishing and furthering the Acme Food business in the above named county, and agrees to forfeit and waive all rights under this contract, if he should cease or stop working at the same for a period of ninety (90) days or more, without first obtaining consent from the first party so to do, or unless prevented by sickness or other good cause.
“ It is also agreed that the party of the first part will not assign during the term of this contract to exceed two-thirds (f) of the territory of the several'States of the United States.
“Now This Indenture Witnesseth: That for and in consideration of fifteen hundred dollars ($1,500 ) to us in hand paid, the receipt of which is hereby acknowledged, we agree to furnish Acme Stock and Poultry Food at the reduced prices as aforesaid, to the said John W. Worthington, party of the second part, or his assigns, for the period of fifteen (15) years from date.
“ For full performance of our respective parts, we bind ourselves, our heirs, administrators, executors and assigns.
“Acme Food Company.
(Signature) “George H. Simpson.
(Signature) “ John W. Worthington.
“ Witness B. J. McCracken.”
(Seal).

Said’Acme Food Company also executed and delivered to defendant the following appointment and agreement.

“ Chicago, III., August 12, 1904.
“ Office of Acme Food Company,
“ 1Í0 La Salle Street.
“ The Acme Food Company hereby appoints John W. Worthington of Oak Grove, an agent for the county of Livingston, State of Michigan, for the following purposes, to wijfc:
“jFirst, the Acme Food Company agrees to pay to John W. Worthington a commission of 50 per cent. (50 %) on all county contracts made by him and accepted by Acme Food Company, of counties not already contracted by the Acme Food Company, said payment to be made from the proceeds of such contracts.
Second, the same commission is to be allowed John W. Worthington whether the contract is made by him directly or whether through his influence the customer deals directly with the Acme Food Company.
Third, it is understood that when the customer has been interested or solicited by more than one agent, or in case the said Acme Food Company may suspect that an agent other than the one credited by the purchaser may be entitled to the commission, then the said Acme Food Company shall hold the proceeds of all such contracts (as well as all pending contracts) for such time as may be required by it to make proper adjustments and divisions of commissions pertaining thereto.
[Seal] (Signed) “Acme Food Company,
“By George H. Simpson, Treasurer.”

All these writings were made, executed, and delivered at the same time as part of one transaction, at the residence of defendant near Oak Grove, Michigan. The note in suit is one of 15 notes of equal amount made and delivered to the Acme Food Company at the same time as a part of said transaction as the consideration mentioned in said contract.

Defendant under the plea of the general issue gave notice that he would show the facts above recited and prove that the Acme Food Company was a foreign corporation which had not complied with the Michigan statute and was not entitled to do business in this State, or bring suits upon contracts made therein; that the notes had been procured by fraud and misrepresentation and were void and without consideration; and that plaintiff was not a bona fide holder of the note sued upon.

The plaintiff’s case, except the computation of the amount due upon the note, consisted of the note itself and the deposition of George H. Simpson, treasurer and manager of the Acme Food Company, and the person who negotiated the transaction between the parties at the time the note in suit was given and as far as this record shows, all of the prior transactions between said company and the defendant. Plaintiff did not testify in the case.

From the deposition of plaintiff’s witness Simpson, it appears that defendant in July, 1904, gave the Acme Food Company a note for $1,800 under an agreement to purchase 30,000 pounds of Acme Food to be shipped about September 1, 1904. This agreement was canceled, and the note surrendered when the contract and notes of August 12, 1904, involved in this suit, were executed and delivered. It also appears from Simpson’s deposition that—

“ Mr. Worthington [the defendant] had handled Acme Food prior to the time of giving this contract. He had first bought goods for his own use about two or three years before, and then had been acting as dealer or agent for something over a year, buying the goods at wholesale. I mean a year prior to the giving of this note. He had handled the Acme Food in considerable quantities.”

It further appears that Simpson saw defendant, after the note in suit was given, at a fair in Pontiac, Michigan, in September, 1904, when the defendant expressed himself as well pleased with the contract. The court directed a verdict for defendant on the ground that the Acme Food Company was carrying on business within this State contrary to law, and that there was no evidence in the case to show that plaintiff was a bona fide holder of the note. Plaintiff asks for a reversal of the judgment entered upon such directed verdict, having assigned error upon this direction of the court. It is admitted that the Acme Food Company is a foreign corporation, and that it has not complied with the requirements of the statute in question.

Two questions are presented upon this record:

(1) Was-the court in error in holding that plaintiff’s assignor was carrying on business in this State contrary to. law?

(2) Was the court in error in holding that there was no evidence in the case that would warrant the submission of the question to the jury upon the proposition that plaintiff was a bona fide holder of the note ?

The material provisions of this statute in force at the •time of this transaction necessary to be considered were as follows:

“ It shall be unlawful for any corporation organized •under the laws of any State of the United States (except the State of Michigan) or of any foreign country to carry on it's business in this State unless it shall first have filed and recorded in the office of the secretary of State a certified copy of its charter or articles of incorporation and have filed evidence of appointment of an agent in this State to accept service of process; and have paid to the secretary of State the requisite filing and recording fees, and franchise” fees in amount and to be determined, etc. * * *
“No foreign corporation subject to the - provisions of this act shall maintain any action in this State upon any contract made by it in this State after the taking effect of this act, until it shall have fully complied with the requirements of this act and procured a certificate to that effect from the secretary of State.” Act No. 84, Pub. Acts 1903, § 7.

By the provisions of the statute above quoted it is unlawful for a foreign corporation “ to carry on its business, in this State ” without complying with its requirements. As the law then stood contracts of a delinquent corporation made within the State were not void but such corporation was deprived of the right to maintain any action thereon. Whether the Acme Food Company was within the prohibition of the act depends upon our construction of the agreement made with defendant. Construing the contract and the appointment as agent together as parts of one transaction we find that a valid agreement was entered into between the parties.

By this agreement defendant was authorized, among other things,—

(1) To establish and further the Acme Food business in Livingston county, Michigan.

(2) To look after and attend to the needs of the Acme Food line of customers already established.

(3) To sell at wholesale to dealers and subagents at certain prices.

(4) To make county contracts (subject to the approval of the company ) of counties not already contracted.

For the exercise of all these powers granted, except the last mentioned, he was given exclusive rights in Livingston county, and agreed, during the life of the contract, to use his best efforts to establish and further the Acme Food business, subject to forfeiture of all his rights in case of neglecting this work for more than 90 days. The authority to make county contracts (subject to approval) was the greatest and most desirable of all the rights acquired by defendant. These county contracts were similar to the one made with defendant for Livingston county. He was given as his territory in which to solicit such contracts one-third of the counties in the State and his commission was fixed at 50 per cent., to be paid from the proceeds of such contracts.

Defendant paid the Acme Food Company for his rights acquired by these agreements, the sum of $1,500, and his rights were to continue for the term of 15 years.

Our construction is that this was not an agreement relative to interstate commerce. The case does not come within the line of authorities cited by plaintiff where the transactions amounted to sales by foreign corporations through agents of commodities to be manufactured and delivered outside of the State. The authorities hold that such transactions amount to interstate commerce.

“ Whatever power may be conceded to a State to prescribe conditions on which foreign corporations may transact business within its limits, it cannot be admitted to extend so far ás to prohibit or regulate commerce among the States; for that would be to invade the jurisdiction which, by the terms of the Constitution of the United States, is conferred exclusively upon Congress.” -Mr! Justice Matthews, concurring, in Cooper Manfg. Co. v. Ferguson, 113 U. S., at page 736.

These writings were not a sale of manufactured articles nor were they simply an agreement to sell. There is a conflict in the authorities as to what under these regulating statutes constitutes “carrying on its business ” in a State by an unauthorized foreign corporation. The weight of authority holds that a single sale of goods or a single business transaction by such corporation cannot be held to amount to carrying on business where there is no purpose to do any further business. 19 Cyc. p. 1268, and cases cited.

The case at bar is • distinguishable from either of the classes of cases above mentioned. This agreement by its terms was an invasion of this State by a foreign corporation not simply to make sales of products manufactured and delivered in a foreign State, nor was it a single act of business without intent or purpose to do any other business; but it was for the express purpose of extending and establishing its business permanently within the State. The agreement was made within the State, with a citizen of the State, to be executed by him wholly within its territory. It covered a term of 15 years, and for the rights granted under it a large consideration was received by the company. This transaction will in our opinion bear no other construction than that this corporation was carrying on its business within this State with the express intention of continuing so to do.

None of the authorities question the proposition that, if the acts of a foreign corporation, in coming within a State, amount to carrying on business, such corporation must conform with the requirements of the statute or be subjected to its penalties and restrictions. The cases cited by plaintiff as sustaining his contention that this was not “carrying on business” recognize the doctrine that where an act of business is transacted by a foreign corporation within a State with the intention to continue to transact its business in such State, the corporation is carrying on its business within such State. Cooper Manfg. Co. v. Ferguson, 113 U. S., at p. 735; Commercial Bank v. Sherman, 28 Or., at p. 576; Florsheim Bros. Dry Goods Co. v. Lester, 60 Ark. 120. See, also, People v. Horn Silver Mining Co., 105 N. Y. 76.

In Vaughn Machine Co. v. Lighthouse, 64 N. Y. App. Div., at p. 142, the court said:

“ The crucial test in doing business within the meaning of this statute is not an isolated transaction within the State or the trans-shipment of goods from the home office, pursuant to orders taken by drummers within the State, but it is the establishment of an agency or branch office within our State limits.”

We do not find that the correctness of this definition has been questioned. When this contract was executed and delivered and the consideration paid the agency was established. On this branch of the case we agree with the trial court that the Acme Food Company was unlawfully carrying on its business in this State and under the statute could not have maintained any action upon the note in suit.

Upon the second proposition we are unable to agree with the learned trial judge that there was no evidence in the case tending to show that the plaintiff was a bona fide holder of the note. There was such evidence given by the witness Simpson. There was also evidence given to the contrary to be considered by the jury. It was a question of fact to be'determinedfrom Simpson’s testimony and his conduct as a witness and from all the evidence in the case bearing upon that question. The case should have been submitted to the jury upon this question with instructions that if they found plaintiff was not a bona fide holder of the note he could not recover in this case, for the reason that he would then have no better or other rights than his assignor, the Acme Food Company, which by law could not maintain the suit.

We have discussed all questions presented by appellant. For the reason stated the judgment is reversed and a new trial ordered.

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