text:
    BECKMAN v. NOBLE.
    1. Partnership — Agency—Giving Security — Assent oe Absent Partner.
    A partner may execute a mortgage covering all of the partnership property, as security for a firm debt, without the assent of an absent copartner.
    2. Trust Mortgages — Conditions—Beneficiaries—Inconsistent Positions.
    A trust mortgage contained a condition that it should not be binding unless the beneficiaries should extend the time of payment for 40 days upon the obligations which the mortgage was designed to secure. Another clause authorized the trustee, should he consider the indebtedness insecure, to take possession of the property, and to sell the same as he might deem best for all persons interested. Held, that the assent of the beneficiaries to the act of the trustee in taking possession of the property before the expiration of the 40 days was not inconsistent with their previous acceptance of the condition on which the mortgage was given.
    3. Same — General Assignment.
    The facts that an instrument, in form a trust mortgage, covered property scarcely adequate to pay the indebtedness secured, and gave authority to the trustee to take possession if he should deem the creditors insecure, and that the makers were • insolvent at the time of its execution, have no tendency to show that the instrument was intended to operate as a common-law assignment.
    4. Debtor and Creditor — Fraud—Evidence.
    A creditor’s participation in the purpose of his debtor to defraud other creditors cannot be inferred from his acceptance as security for his debt of a mortgage covering all of the debtor’s property.
    Error to Wayne; Frazer, J.
    Submitted October 14, 1897.
    Decided January 18, 1898.
    Garnishment proceedings by Herman Beckman and another against Herbert W. Noble, trustee, as garnishee of Louis Kuttnauer and others. From a judgment for the garnishee defendant on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      Elliott G. Stevenson, for appellants.

      Alfred Lucking (Walker & Spalding, of counsel), for appellee.
   Montgomery, J.

The firm of Kuttnauer, Rosenfield & Co. consisted of Louis Kuttnauer, Adolph S. Kuttnauer, and Monroe Rosenfield. The business of the firm was buying and selling clothing, notions, furnishing goods, etc., at wholesale. Rosenfield traveled on the road selling-goods for the firm. On the 17th of October, 1895, a trust mortgage was given in the name of the firm to Noble, as trustee of the Mechanics’ Bank, the State Savings Bank, and the Northampton National Bank, of Northampton, Mass. This mortgage was executed by Adolph S. Kuttnauer with the approval of Louis Kuttnauer, but in the absence of Rosenfield and without his consent. The mortgage covered all the assets of the firm. The garnishee defendant took possession under the mortgage, and the testimony shows that the proceeds of the sales made in the execution of the trust are insufficient to pay the creditors secured.

The plaintiffs claim that this mortgage is void as to creditors, for the reasons:

(1) That the Kuttnauers did not have competent legal authority to execute a'mortgage covering all the partnership property, without the assent of Rosenfield.

(2) Because the mortgage contained a condition that it should not be binding unless two of the banks secured should extend the time of payment of obligations held by them for 40 days, and that this was not done.

(3) Because the instrument was intended to have the effect of a common-law assignment, and did not conform to the statute regulating such assignments.

(4) Because the mortgage was made with the intent to hinder, delay, and defraud creditors.

The circuit judge, at the close of the testimony, directed a verdict for the defendant, and plaintiffs bring error.

1. The authority of Kuttnauer to execute the mortgage on behalf of the firm, as a security for a firm indebtedness, is sustained by the cases of Walker v. White, 60 Mich. 427; Harvey v. Ford, 83 Mich. 506; Robards v. Waterman, 96 Mich. 233. In the last case cited, the precise question involved here was decided, and held in accordance with defendant’s contention. See, also, 1 Lindl. Partn. (Ewell’s Ed.) p. 279 (star p. 129); McClelland v. Remsen, 36 Barb. 622; Mabbett v. White, 12 N. Y. 454.

2. The notes held by the banks matured at different times, — some within a few days of the date of the mortgage, and others at different times during the succeeding four months. The mortgage contained a clause as follows:

“ This mortgage is given on condition that the said Mechanics’ Bank of Detroit and the said State Savings Bank of Detroit extend the time of payment 40 days on each of said notes and obligations held by them, and so signify to said trustee on or before October 18, 1895; else this mortgage shall be null and void.”

Plaintiffs contend that this condition never was complied with, and therefore the mortgage never became operative. It appears by the undisputed testimony that the mortgage was-submitted to the officers of each of the banks after its execution, and that, after the same was considered, they severally signified to Mr. Noble, the trustee, their wish to accept the mortgage, including the con•dition quoted; and it does not appear that either of the banks received any payment until the 40-day extension had expired. It does appear, however, that the trustee, Noble, with the assent of the banks, took immediate possession of the property covered by the mortgage, and commenced the sale of the goods, and this is alleged not to consist with the alleged extension. The mortgage also contained this clause:

“If default shall be made in such payment, or any part of the same, or if said trustee shall deem said indebtedness insecure, the said trustee is hereby authorized to take possession of such personal property aforesaid, and to sell the same in such manner as he may deem best for all persons interested in the trust.”

Was the sanction given to the act of taking possession under this insecurity clause inconsistent with the extension of time consented to by the bank? We think not. The instrument must be construed so as to give effect to the two provisions. The bank could not, after accepting the mortgage, have instituted a suit on the notes, but the trustee was, by the express terms of the mortgage, authorized to take possession if he deemed the beneficiaries insecure.

3. The instrument is not in form a common-law assignment ; it is a mortgage. There is no evidence that it was anything else in purpose and intent, unless the fact that the mortgagors were insolvent, and that the mortgage covered property scarcely adequate to pay the indebtedness secured, and that authority was given the trustee to take possession if he deemed the creditors insecure, be taken as evidence of such intent. There was no agreement between the preferred creditors or the trustee and the mortgagors to treat the instrument as anything other than security for the payment of the debts secured. We think the circuit judge was justified in the ruling, as matter of law, that there was no evidence tending to show that the mortgage was intended to operate as a common-law assignment. The case falls within previous rulings of this court. Sheldon v. Mann, 85 Mich. 265; Bank of Montreal v. J. E. Potts Salt & Lumber Co., 90 Mich. 345; Cluett v. Rosenthal, 100 Mich. 193 (43 Am. St. Rep. 446); National Bank of Oshkosh v. First Nat. Bank of Ironwood, 100 Mich. 485; Austin v. First Nat. Bank of Kalamazoo, Id. 613.

4. We also think that there was no evidence tending to show that the mortgage was received by the trustee or creditors with a purpose of aiding a scheme to defraud other creditors. There was affirmative testimony negaliving such purpose. Indeed, it is difficult to see how the foreclosure of the mortgage could have had any such effect. There was no attempt to deprive other creditors of their legal remedies, except as the acceptance of security which preferred these banks over other creditors had that effect, and such preference is lawful, as has been repeatedly held. There was, it is true, evidence that the Kuttnauers had practiced a fraud on their partner, and on their creditors also, by diverting funds belonging to the firm; but, if we assume that they made the mortgage with a like purpose, there is nothing in the record justifying the inference that the banks or the trustee participated in the purpose, unless the acceptance of the security for an honest debt, and the attempt to enforce the same, be so considered. That it cannot, see Eureka Iron & Steel Works v. Bresnahan, 66 Mich. 489.

The judgment will be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, C. J. Montgomery, J.

license: Public Domain

text:
    BENEDICT v. MICHIGAN BEEF & PROVISION CO.

    1. Trial — Compromise Verdict.
    Plaintiff, who had been in defendant’s employ as engineer, claimed that, by special agreement, his day’s work was to consist of 10 hours, and that he was to be paid for overtime. Defendant denied having made such agreement. The only evidence on the amount of overtime was the testimony of plaintiff; and his attorney, at the conclusion of the charge, suggested that the jury ought to know that plaintiff’s claim was §588.83, which sum he should recover, if allowed to recover at all. The court assented to this statement. The jury returned a verdict for §398.77. Held, that the verdict was not necessarily a compromise, since it may have been the result of a mistake in computation, or the jury may have considered portions of plaintiff’s testimony inherently improbable. Grant, O. J., dissenting.
    2. Same — Action on Contract — Evidence of Custom.
    Where plaintiff relied upon an express contract by which he was to be paid for working overtime as engineer, which contract was denied by the defendant, evidence offered by the latter to show what the custom was in similar establishments employing engineers was properly excluded.
    3. Appeal — Want of Specific Objections.
    Errors assigned upon the admission and rejection of testimony will not be considered where no ground of objection was stated in the court below.
    Error to Wayne; Frazer, J.
    Submitted October 15, 1897.
    Decided January 18, 1898.

      Assumpsit by Silas E. Benedict against tbe Michigan Beef & Provision Company for work and labor performed. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff was in defendant’s employ as an engineer from about May 1, 1890, to March 7, 1891, at a salary of $850 per year. He claimed a special agreement that his day’s work was to consist of 10 hours, and that he was to be paid for overtime. There were a few other small items, for a portion of which defendant admitted its liability, and conceded an indebtedness of $62.07. The principal item and main dispute is over the contract for overtime. • Defendant denied this contract, and claimed that no number of hours was agreed upon for a day’s work, but that the plaintiff agreed to work such time as was necessary. The only evidence of the amount of overtime came from the plaintiff. He testified that he kept an account each day of such overtime, and produced the account which he said that he kept. At the conclusion of the evidence, and after the charge of the court, the attorney for plaintiff said: “Inasmuch as your honor has told the defendant’s claim, probably the jury ought to know that the plaintiff’s claim is $588.83; there is no dispute about that, if he is entitled to recover at all,” — to which the court replied, “I suppose the jury know about that.” The jury returned a verdict for $398.7?. Counsel for the defendant made a motion for a new trial, upon the ground that the verdict was a compromise verdict, and therefore illegal, which the court overruled.

      Flowers, May & Moloney, for appellant.

      James H. Pound, for appellee.

       Rehearing denied March 22, 1898.

   Grant, C. J.

(after stating the facts). 1. There is no evidence to sustain this verdict. It was a compromise verdict, which has been condemned by this and other courts. Goodsell v. Seeley, 46 Mich. 623 (41 Am. Rep. 183). If the jury concluded that the plaintiff did not work the overtime testified to by him, there was not a scintilla of evidence by which they could determine how much overtime he did work. The jury were therefore bound under their oaths, the evidence, and the statement of plaintiff’s counsel, assented to by the court, to give plaintiff the entire amount of this claim or to reject it entirely. It is, however, urged that, since the jury have found that the contract was as claimed by plaintiff, and have fixed the amount at less than that to which he testified, the defendant is not prejudiced. Every litigant is entitled to have the verdict against him based upon evidence. If A. sue B. upon a promissory note of $100, and testifies that nothing has been paid, and B. testifies that he paid it, is a jury authorized to split the difference, and find that B. owes $50? Or, if A. sue B. for services for 100 days, and testifies that that was the contract, and that he worked the entire time, and B. testifies that the contract was for 10 days, and that that was all A. worked, can a jury find that A. worked 50 days, and render a judgment accordingly? It is well known to the profession that oftentimes, when a jury cannot agree as to what a contract is, they will compromise on an amount. Such is the fair inference in this case. It is undoubtedly true that the jury would be justified in finding that it would be almost a physical impossibility for the plaintiff in this case to have worked the time which he testified; but are the jury justified in finding how much less time he worked, without any testimony as to how many days or hours less ? A litigant is always prejudiced when he can point to the record and say there is no tangible evidence to support the verdict. It was necessary for the jury to determine two things: First, what was the contract; and, second, having determined that in favor of plaintiff, how much overtime he worked. Each must be based upon testimony, and not upon conjecture. Such verdicts ought not, in my judgment, to be permitted to stand.

2. Many errors are assigned on the admission and rejection of testimony. In several instances no ground for the objection was stated, counsel contenting themselves-with simply saying, “Objected to.” Such objections will not be considered by the appellate court.

In view of the new trial, we may note one objection. Defendant offered testimony tending to show what the custom was in other similar establishments in employing engineers. This testimony was properly excluded. Plaintiff relied upon an express contract for 10 hours a day and payment for overtime. The judge correctly instructed the jury that this was the sole issue, and that, if there was no such contract, plaintiff could not recover.

Judgment should be reversed, and new trial ordered.

Montgomery, J.

The principal question presented in this case is whether the verdict rendered should be set aside on the ground that it is a compromise verdict. There is no doubt that, where the record is such as to make it clear that the jury have reached the result by “splitting differences,” neither party has had the benefit of their judgment, and such verdict ought not to be permitted to stand. See Goodsell v. Seeley, 46 Mich. 623 (41 Am. Rep. 183). But this is quite a different proposition than the one suggested by the facts of this case, which is that, because the jury gave a verdict for a less sum than the plaintiff’s testimony showed him entitled to, the defendant has the right to complain, and to insist that the verdict was reached as a compromise. The inference is not a necessary one from the premises. The verdict for the less amount may have been the result of a mistake in computation, or it may have been that the jury, on their own judgment, considered portions of plaintiff’s testimony inherently improbable. It certainly does not appear in this case, as it did in Goodsell v. Seeley, supra, that the verdict was the result of a compromise.

Upon the other points suggested, I concur in the opinion of the Chief Justice, that no prejudicial error was committed.

The judgment is affirmed.

Hooker, Moore, and Long, JJ., concurred with Montgomery, J.


author: Montgomery, J.

text:
    CONNOR v. BUHL.
    1. Vendor and Purchaser — Offer and Acceptance.
    After certain, preliminary negotiations, defendant submitted to plaintiff a list of property belonging to the latter which defendant professed to be willing to take in exchange for land belonging to him. The list showed the value of each description, the amount of supposed incumbrance, and the net value of the equity, which latter aggregated a sum slightly in excess of the value of the land which defendant proposed to exchange. Plaintiff thereupon executed deeds of the property listed, and placed them in the hands of a third person for safe-keeping. Soon afterwards it developed that the total incumbrance on the property selected by defendant and described in the deeds was greater by several thousand dollars than appeared in the list made by defendant. Held, that defendant was justified in refusing to accept the deeds.

      3. Same.
    The fact that the deeds executed by plaintiff purported to be subject only to such incumbrances as were named in defendant’s proposition was immaterial, the incumbrances not having been actually reduced, since defendant was not bound to accept plaintiff’s covenant so to reduce them.
    3. Same.
    Nor could plaintiff, in the absence of an agreement in writing by defendant to accept other lands, complete the contract by tendering deeds of lands equaling in value the increased incumbrance.
    4, Deeds — Delivery—Agency.
    A delivery of a deed is not effected by placing it with the common agent of the parties for safe-keeping until the consummation of the contract between the parties.
    Error to Wayne; Carpenter, J.
    Submitted November 4, 1897.
    Decided January 18, 1898.

      Assumpsit by Jeremiah Connor against Theodore D. Buhl for the breach of a contract for the exchange of land. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      William Look, Ira G. Humphrey, and John Atkinson, for appellant.

      C. A. Kent, for appellee.
   Montgomery, J.

The plaintiff Drought this action to recover damages for the breach of an executory contract for the exchange of land. The estate of C. H.. Buhl owned a farm of 768 acres of land in Monroe county; and plaintiff owned a large number of parcels of land in the city of Detroit, consisting of houses and lots, valued at something like $335,000, and incumbered in various amounts, aggregating $132,700, as was supposed. After some oral negotiations, defendant, on September 5, 1894, addressed the following letter to one F. B. Trout, who was acting for the plaintiff, and, as he testifies, for defendant also:

“Dear Sir: After talking with you this morning, I can hardly agree with you on the proposition made by Mr. Connor for the farm, at $65 per acre. We have held the price of this farm at $75 per acre; but, as my time is so taken up that I cannot look after the property, I would be willing to divide the difference, and make the price $70 per acre. I will take my choice of the properties you own, at a fair valuation, either by appraisement, or value as we may agree upon mutually. I will also assume to take the mortgages on the property I select. All taxes must be paid to date by you.
“Yours respectfully,
“Estate of C. H. Buhl,
“By T. D. Buhl, Administrator.”
On this letter was indorsed the following:
“Accepted on appraisements of Union Trust Company heretofore made, and herewith attached.
“Jeremiah Connor.”

Defendant was apparently unwilling to accept the appraisement of the Union Trust Company previously made, and also desired that Prentis avenue should be kept open, and therefore wrote a statement and letter as follows:

“We have had the property of Mr. Connor looked over very carefully, and we find the values made by the Union Trust Company are valued as high, as the property has been sold on any of the streets referred to. We find some of the houses much out of repair, and many of them too highly valued.”

This was followed by a description of the property which the defendant was willing to accept, showing the value of each description, the amount of supposed incumbrance, and the net value of the equity, which latter aggregated $54,115,^-a sum slightly in excess of the value of the farm; and the communication concluded with the following:

‘ ‘ As Prentis avenue is a private roadway, and not a legal street, we must have a guaranty that the street must be left open as now laid out.
“Theodore D. Buhl.”.

After this paper was executed, plaintiff executed deeds of the property described in the list, and, as he testifies, “placed them in Mr. Trout’s hands, to keep in his safe.” Plaintiff also testifies that Mr. Rathbone, acting for the defendant, and Mr. DeLong, acting for the plaintiff, went around, October 15th, to the tenants occupying the property, and notified them that the rents, for the future, were to be paid to Mr. Buhl. The deeds deposited with Mr. Trout were acknowledged on the 8th of November. On the 27th of November, Mr. Trout wrote Mr. Buhl a letter stating, in substance, that the total incumbrances on the property selected by Mr. Buhl were greater by several thousand dollars than appeared in the list made by defendant, and adding: “It will be necessary for you to select further lands for this amount. Mr. Connor has deposited with me deeds for all the lands selected, and is ready to deposit deeds for the rest, when selected.” Plaintiff received a letter from defendant, dated November 24th, but which he testifies he received some days after its date (inferably, after the receipt of Mr. Trout’s letter), which reads as follows:

“Mr. Jeremiah Connor,
“ Detroit.
Dear Sir: It has become necessary for us to make other arrangements in regard to the Buhl farm, and we herewith withdraw the proposition to exchange the Buhl farm for your property.
“ Yours respectfully,
“Theodore D. Buhl.”

It should be further stated that the deeds executed by plaintiff purported to be subject only to such incumbrances as were named in Mr. Buhl’s proposition. At the close of the testimony, the circuit judge permitted an amendment counting upon the contract as an executed contract, and claiming as damages the value of the Buhl farm. The circuit judge directed a verdict for defendant, and plaintiff brings error.

It is conceded, very properly, that the indorsement on Mr. Buhl’s first proposition, of September 5th, was not an unconditional acceptance, and that the minds of the parties had not then met. The counter proposition of Mr. Buhl, in which a list of the lands was given, and a new valuation placed on them, did not make a complete contract. It was but a proposition. It may be assumed that if the plaintiff had executed deeds of the property corresponding to the specifications contained in this proposition, and such deeds had in fact conveyed the property, subject only to the incumbrances named in the proposition of Mr. Buhl, and the deeds had been accepted by the defendant, this would have made a complete agreement. But the evidence fails to show that the plaintiff had reduced the incumbrance to the amount named in defendant’s proposition, and we think defendant was not bound to accept plaintiff’s covenant to reduce the mortgages. Kelsey v. McDonald, 76 Mich. 188. This was not what the proposition called for, nor was there any performance of the condition of the guaranty relating to Prentis avenue.

It is contended by plaintiff’s counsel that the deeds were accepted by defendant, as they were deposited with Trout, who was defendant’s agent. Mr. Trout testifies that he was agent of both parties, and testified to his possession of the deeds as follows:

“Col. Humphrey (plaintiff’s attorney) and myself took the deeds (that is, I took the deeds, and Col. Humphrey was with me), and we went down to defendant’s store; and I told him that we had the deeds all executed and ready to deliver, and asked him for his deed. It was not then ready, he told me. He said to me to keep those deeds, and that he would be ready in a few days; that Mr. Kent had not quite got through with the abstracts yet.
“Q. Were you referred in any way by defendant to Mr. Kent ?
“A. Yes; always referred to Mr. Kent.
“Q. What did he tell you to do with reference to Mr. Kent, if anything?
“A. He told me to see Mr. Kent in regard to the abstracts. I went quite frequently to Mr. Kent’s office after that, and did considerable business with him, preparing abstracts and getting them brought down. There was some dissatisfaction, etc.
“Q. What can you tell us as to whether the deeds and abstracts were finally approved or disapproved ?
“A. They were, by both defendant and Mr. Kent.
"Q. For whom were you acting, in retaining the deeds ?
“A. Mr. Buhl.
“Q. Acting under his directions, as I understand you?
“A. Yes, sir.”

As we have seen, plaintiff testifies that the deeds were placed in the hands of Mr. Trout, to keep in his safe. There is but one inference to be drawn from this testimony, and that is that Mr. Buhl has not accepted the deeds absolutely, or disarmed himself of the right to insist that the incumbrance should be reduced to the amount named in the schedule.

The plaintiff afterwards made deeds of other lands to make up the deficiency; but defendant had not undertaken) by any agreement in writing, to accept other lands, and did not accept the last-named deeds.

The direction of the circuit judge was right.

The judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    PEOPLE v. SUMMERS.

    1. Appeal — Assignments op Error —Objections to Testimony.
    Assignments of error relating to objections to the admission of testimony cannot be considered where no reasons were given for the objections, or where no exceptions were taken to the rulings.
    2. Jury — Competency—Challenge for Cause.
    A challenge for cause in a criminal proceeding, based upon the fact that the juror has read something about the case, is properly overruled where he states that he does not remember what he has read, that he is not prejudiced against the accused, and that he can render a fair and impartial verdict.
    3. Same — Drawing op Talesmen.
    A sheriff is not disqualified from acting upon a commission for drawing talesmen in a criminal case because his name is indorsed on the information as a witness for the people.
    4. Criminal Law — Trial—Exclusion op Witnesses.
    A contention that the respondent in a criminal case was prejudiced by the fact that persons were allowed to be sworn as witnesses for the people, although they had not observed an order of the court excluding witnesses from the courtroom, must fail where the record discloses that the trial judge satisfied himself that they had complied with the order, and there is nothing to indicate that he reached a wrong conclusion.
    5. Same — Prosecuting Attorney — Disqualification.
    A prosecuting attorney is not disqualified from appearing in a criminal case by the fact that an unsuccessful effort had been made to employ him in a civil cause growing out of the same state of facts, and that thereupon his father was employed therein.
    6. Same — False Pretenses — Intent—Evidence.
    It is competent, upon a prosecution for obtaining a promis- . sory note by the false pretense that it was a contract binding the makers to pay only upon the sale of certain machines for which they were to be given the exclusive agency in certain territory, to show, as illustrating the purpose or intent, that the respondents, at about the same time, were engaged in like transactions with other parties, and had already sold to others the right which they represented they were conveying to the makers of the note.
    7. Same — Elements of Offense — Sufficiency of Information.
    An information for obtaining a note by the false pretense that it was a contract for the payment of a certain sum on the contingency that the maker should sell a certain number of machines is not open to the objection that the pretense alleged is not of an existing fact, but is merely promissory in its nature, nor to the objection that it is not such a pretense as would result in the deception alleged.
    8. Same — Conspiracy—Merger of Lesser Offense.
    A conviction may be had for conspiracy to obtain a note by false pretenses, although the respondents are guilty of the completed offense; the conspiracy not being merged in the felony.
    9. Same — Fraudulently Obtaining Note — Pleading.
    An information charging a conspiracy to obtain a note by false pretenses need not set out the means by which the end was to be accomplished; the end itself being unlawful.
    10. Same — Separate Counts.
    An information may charge, in different counts, the obtaining of a note by false pretenses, and a conspiracy to commit that crime, founded on the same transaction.
    11. Same — False Pretenses — Capacity of Person Deceived.
    The false pretense essential to the crime of obtaining property by false pretenses need not necessarily be such that it would deceive a person of ordinary prudence, capacity, and intelligence, but it is sufficient if it is calculated to deceive one of the capacity of the person to whom it is made.
    Exceptions before judgment from Macomb; Eldredge, J.
    Submitted November 5, 1897.
    Decided January 18, 1898.
    Jacob L. Summers was convicted of obtaining a promissory note under false pretenses.
    Affirmed.

      Sidney J. Lochner, for appellant.

      Fred A. Maynard, Attorney General, and John A. Weeks, Prosecuting Attorney, for the people.

       Rehearing denied May 24, 1898.

   Moore, J.

Respondent and one H. C. Nelson were informed against jointly. Respondent demanded a separate trial, which was granted him, and a verdict of the jury was rendered against him. The information contained three counts. The first one was withdrawn from the consideration of the jury by the trial judge. The other two are as follows:

“2. And the said prosecuting attorney further gives the court to understand and be informed that heretofore, to wit, at the township of Erin, in said county of Macomb, on the 29th day of May, 1896, the said H. C. Nelson and Jacob L. Summers, with the intent to cheat and defraud them, the said Edward Fischer and Fred Fischer, -did falsely pretend and represent to the said Edward Fischer and Fred Fischer that a certain promissory negotiable note payable to the said H. C. Nelson six months after date thereof, to wit, May 28, 1896, being the date of said note, for the sum of $306, which they, the said H. C. Nelson and Jacob L. Summers, did then and there offer to said Edward Fischer and Fred Fischer to be signed by them, the said Edward Fischer and Fred Fischer, was not a negotiable promissory note, and that the same w'as a contract, by which they, the said Edward Fischer and Fred Fischer, were bound to pay said sum of money only on the contingency that they, the said Edward Fischer and Fred Fischer, could and would complete the sale of 36 stock-food steamers and evaporators aforesaid in the townships of Erin and Warren, in Macomb county, Troy, in Oakland county, and Grosse Pointe, in Wayne county, and that the said sum of money was not to become due or payable until the said Edward Fischer and Fred Fischer should sell 36 stock-food steamers and evaporators; and the said Edward Fischer and Fred Fischer, relying upon and believing said representations and pretenses so made as aforesaid, were deceived thereby, and were thereby then and there induced to sign, and did sign and deliver, their said note to said H. C. Nelson and Jacob L. Summers, and the said H. C. Nelson and Jacob L. Summers, by means of the false pretenses aforesaid, did then and there designedly obtain of the-said Edward Fischer and Fred Fischer said negotiable promissory note of the value of $306, the making of which note and written instrument would be punishable as forgery, with the intent to cheat and defraud them, the said Edward Fischer and Fred Fischer; whereas, in truth and in fact the said instrument, the purport of which is above set forth, was a negotiable promissory note, and the same was not then and there a contract which bound the said Edward Fischer and Fred Fischer to pay said sum of money, to wit, $306, only on the contingency that they, the said Edward Fischer and Fred Fischer, could and would complete the sale of 36 of said machines in the townships of Erin and Warren, in Macomb county, Troy, in Oakland county, and Grosse Pointe, in Wayne county, as they, the said H. O. Nelson and Jacob L. Summers, then well knew; and whereas, in truth and in fact said sum of money was to become due and payable with or without the happening of said contingency, or any other condition whatever, six months from the date of said instrument, as they, the said H. O. Nelson and Jacob L. Summers, then well knew.
“3. And, further, that heretofore, to wit, on the 29th day of May, 1896, at the township of Erin, in the county of Macomb, aforesaid, H. C. Nelson and Jacob L. Summers unlawfully, falsely, deceitfully, and fraudulently did combine, conspire, confederate, and agree together by divers false pretenses, subtle means and devices, to obtain and acquire unto themselves of and from the said Edward Fischer and Fred Fischer a certain negotiable promissory note, dated May 28, 1896, at Roseville, Michigan, for $306, with interest at 7 per cent, per annum, paerable in six months after date to the order of H. O. Nelson, duly signed by Edward Fischer and Fred Fischer as makers, a more particular description of which note this informant is unable to give for the reason that the same is out of his possession and control, of the value of $306, of the goods, chattels, and property of the said Edward Fischer and Fred Fischer, and to cheat and defraud them, the said Edward Fischer and Fred Fischer, of the same; and the said H. C. Nelson and Jacob L. Summers, in pursuance of and in accordance with said combination, conspiracy, and agreement between them as aforesaid, did, on the 29th day of May, A. D. 1896, at said township of Erin, in said Macomb county, by divers false pretenses, subtle means and devices, unlawfully, falsely, deceitfully, and fraudulently obtain and acquire unto themselves of and from the said Edward Fischer and Fred Fischer, of the goods and chattels and property of the said Edward Fischer and Fred Fischer, the negotiable promissory note as above set forth in purport, with the intent to cheat and defraud the said Edward Fischer and Fred Fischer,” etc.

The jury returned a verdict of guilty.

Counsel for respondent has made 90 assignments of error. Some of them relate to objections made to the admission of testimony where no reason was given for the objection, and in other instances no exception was taken to the ruling. These assignments of error cannot be considered here.

Some of the assignments of error relate to the action of the trial judge in allowing Mr. Hazleton to sit as a juror. The record shows that Mr. Hazleton had read something about the case, but it also shows that he did not remember what he had rea'd, that he was not prejudiced against the accused, and that he could render a fair and impartial verdict. He was challenged for cause, and the challenge was, as we think, very properly overruled.

Other assignments of error relate to the manner in which the talesmen were procured. They were drawn by a commission, in accordance with the law applicable to Macomb county, of which commission the sheriff was a member. His name was indorsed on the information as a witness for the people. A challenge was made to the talesmen because of the facts just stated. It was not shown that the sheriff was an interested party in any other way than as a witness for the people. We do not think this any more disqualified him from acting upon the commission than the fact that the clerk of the court swore the witnesses, and that the judge presided at the trial, would disqualify them from acting upon the commission.

Before the trial commenced, an order was made excluding the witnesses for the people from the court-room. Some of the assignments of error relate to the action of the court in allowing persons to be sworn as witnesses who the defense claimed had not observed the order of the court. Before allowing them to be sworn, the judge satisfied himself that the witnesses had complied with the order of the court, and we find nothing in the record to indicate that he reached a wrong conclusion.

Errors are also assigned on the ground that the prosecuting attorney was disqualified from appearing in the criminal case, because he was interested in a civil cause growing out of the same state of facts, and to the action of the judge in refusing to grant a new trial upon that ground. The record shows that, when the civil case was commenced, an effort was made to employ the prosecuting attorney. He declined to be employed. His father was then employed in the civil case. It was made to appear to the satisfaction of the trial court that the prosecuting attorney was not in any way interested in the civil proceeding, and we think his conclusion was fully justified by the record.

The people produced testimony tending to show that Nelson and Summers were acting together in the transaction. They were then allowed to show that these parties had been engaged in like transactions with other parties, and that they had already sold to others the right to sell the machine in certain townships which they represented to the Fischers they were selling to them. We think this was entirely competent, as tending to throw light upon the purpose or intent of the respondent in the transaction which was the subject of inquiry. People v. Henssler, 48 Mich. 49; People v. Wakely, 62 Mich. 297.

It is claimed that the second count is not good, because the false pretense is not there stated to be an existing fact or circumstance, but was promissory in its nature; and also because the pretense ■ alleged must be distinctly negatived; and also because there can be no false pretense when the means of detection are at hand; and also because the count fails to set forth such false pretenses as would result in the deception alleged. An examination of the second count shows that none of these objections are well taken. 2 How. Stat. § 9226; Com. v. Blanchette, 157 Mass. 486; Tiff. Cr. Law, 704.

It is claimed that the third count is defective — First, because a conspiracy to commit a felony is merged in the felony; second, because an intention to cheat and defraud is not indictable at common law, and that a promissory-note obtained by false pretenses, in the hands of the original parties, is not a valuable thing, within the meaning of 2 How. Stat. § 9161, and, as the act done was not unlawful, the means with which it was done must be set out in the information. As to the first of these contentions, we think the point has been decided by this court dgainst the contention of counsel in the conspiracy case of People v. Petheram, 64 Mich. 258, where it was said:

“The fact that the object of the conspiracy was accomplished, and the unlawful thing conspired to be done performed and completed, does not prevent a conviction upon the charge simply that the defendants conspired to commit the act. The carrying of the conspiracy into effect does not merge the offense charged into the greater, but, if the conspiracy to perform the unlawful act is proven, the conviction follows, though the defendant might have been found guilty of the greater crime had he been charged with it.” 1 Bish. Cr. Law, §§ 804, 805.

As to the other contention, in an information charging a conspiracy the rule is that either the end or the means must be unlawful. If the end be unlawful, that, and that only, may be alleged; if the end be lawful, and the means' used unlawful, then the means must appear. People v. Clark, 10 Mich. 310; People v. Petheram, 64 Mich. 252. It is lawful for one to procure the note of another. It is not lawful, but criminal, for one to obtain and acquire the note of another by false pretenses, subtle means and devices. 2 How. Stat. § 9432; State v. Patty, 97 Iowa, 373. Here the information charges the respondent with conspiracy with another to accomplish an end which was unlawful and criminal, and that, in pursuance of the conspiracy, the conspirators accomplished the criminal end sought to be accomplished. We think the third count is good.

Counsel says it was error to join the second and third counts in the information. The offenses charged spring out of substantially the same transaction. The same testimony was applicable to each of these counts. We cannot see how the respondent was prejudiced in any way by the joinder. People v. McKinney, 10 Mich. 95; Van Sickle v. People, 29 Mich. 61; People v. Sweeney, 55 Mich. 586.

Complaint is made of that portion of the charge reading as follows:

“It is not every representation that is false that will amount to a false pretense within the statute, and sustain a charge of obtaining a signature to an instrument by false pretenses. It must be one calculated to deceive and induce action on the part of the one to whom it is made. A representation as to an existing fact or thing so evidently and plainly false that no one would be deceived, that no one should believe or can be induced to act upon it, cannot sustain a charge of false pretense. Formerly it was held that, to sustain a charge of false pretense with intent to deceive and cheat or defraud, the pretense must be one that is calculated to deceive and induce action on the part of a person of ordinary prudence, capacity, and intelligence; but,. as I understand, that is not now the rule, and whether the representation is calculated to deceive and induce certain action may depend upon the capacity, intelligence, and learning of the person or persons to whom the statement or representation is made. And in this case you may, in judging of this question, take in consideration the education, business ability, experience, and learning of the Fischers, as shown by the evidence; and if you find that the representation charged in this count, if made, was, in view of their capacity and ability, calculated to deceive them as to the character of the paper, and did induce them to sign it, even though you should be of the opinion that a person of ordinary prudence, capacity, and intelligence ought not to be deceived by it, you may still find that the representation was calculated to and did induce them to sign the paper. It is for you to determine whether it was calculated to and did induce their signing from all the circumstances shown.”

The authorities are not uniform as to just what the rule is in relation to the character of the pretense used. The trial court, in disposing of the motion for a new trial, stated the rule, as we think it now prevails, so clearly that I quote it here:

“While there are many cases supporting the contention of the respondent that, when the pretenses used are of a character such that a person of ordinary intelligence and prudence could not be deceived by it, they do not constitute false pretenses within the statute, I think the best-considered cases hold to a different doctrine. The design of the statute was to protect the weak and shield the credulous against the arts and wiles of the shrewd and designing; and the real question on this point ought to be, and under the statute and in reason is, Was the pretense designedly false, and made to induce the action claimed, and was it successful ? Its success may depend upon the weakness or strength of the party played upon. Men of much good judgment and discretion are often deceived by false pretenses used by skilled and crafty confidence men, that ' possibly to the ordinary jury would seem ought not to deceive anybody, while much less plausibility of pretense will rapidly capture and deceive the unwary, unlearned, and inexperienced. It ought not to be the law that one may escape the penalty of a crime in deceiving the weak to their injury by false pretenses by establishing that, if the party was not so weak, he would not have succeeded in deceiving him.”

2 Russ. Crimes (International Ed.), 519; Cowen v. People, 14 Ill. 348; State v. Mills, 17 Me. 211; State v. McConkey, 49 Iowa, 499; State v. Montgomery, 56 Iowa, 196; State v. Fooks, 65 Iowa, 196, 452; In re Greenough, 31 Vt. 290; Smith v. State, 55 Miss. 513. See opinion of the chancellor in People v. Haynes, 14 Wend. 546 (28 Am. Dec. 530), and People v. Henssler, 48 Mich. 49.

We have examined the other assignments of error, but do not think it necessary to refer to them further than to say we deem them without merit. The verdict is affirmed, and cause remanded for further proceedings.

The other Justices concurred.


text:
    BOARD OF WATER COMMISSIONERS OF DETROIT v. AUDITOR GENERAL.
    Taxes — Exemptions—Detroit Water Board — Leased Property.
    The act creating the board of water commissioners of the city of Detroit (Act No. 90, Laws 1853, as amended) empowers the board to take and hold such property as may be needful or convenient for carrying out the purposes of the act, and to sell and convey’or lease the same when required by the interests of the city. The act further provides that the property of the board shall be exempt from all taxes. Held, that property of the board which was formerly used as a pumping station is exempt, though temporarily leased to a dry-dock company.

      Mandamus by the board of water commissioners of the city of Detroit to compel Roscoe D. Dix, auditor general, to cancel a certificate of purchase of lands sold for delinquent taxes.
    Submitted January 4, 1898.
    Writ granted January 18, 1898.

      Charles Flowers and Charles D. Joslyn, for relator.

      Fred A. Maynard, Attorney General (H. B. Carpenter .and Harris E. Thomas, of counsel), for respondent.
   Montgomery, J.

This is a proceeding by mandamus to compel the auditor general to cancel a certificate of sale of certain lands in the city of Detroit owned by the board of water commissioners, and which were assessed for the taxes of 1894. The question involved is whether the lands were exempt from taxation. The lands are owned by the board, and were occupied as a pumping station until the present station was erected. From that time until 1887 the board used the land in question for storage purposes, when (in 1887), having no immediate use for the same, a lease was made to the Detroit Dry-Dock Company. The act creating the board (Act No. ¿90, Laws 1853, as amended) empowers the board “ to take and hold, by purchase, gift, devise, bequest, or otherwise, such franchises and real and personal property, either within or without the limits of said city, as may be needful or convenient for carrying out the intents and purposes of this act, and to sell and convey or lease the same whenever required by the interests of the city.” The act further provides: “ The property of the board, whether within or without the limits of the city of Detroit, shall be exempt from all taxes and assessments of every kind. No writ of attachment or writ of execution shall be levied upon the property of said board.” Charter and Laws of Detroit (1893), chap. 21, § 1.

The counsel for respondent contend that this statute should be construed as exempting only such property of the board as is at the time convenient or necessary for direct use by the board. The argument is that, as taxation is the rule, and exemption the exception, a statute providing for an exemption should receive a strict construction. This is undoubtedly the correct rule. Cooley, Tax’n (2d Ed.), 204. Whether this strict rule should be applied in construing a statute exempting the 'property of a municipal corporation, we need not, in this case, determine, as we are of the opinion that the legislative intent is made clear by the language employed. The language creating the exemption is in itself broad enough to cover the property in question. The provision relating to exemption from taxation is immediately followed by the exemption of the property from legal process, indicating that the same class of property was in the mind of the legislature; and when it is considered that the board is in the same section given power to lease property owned by it, and that no limitation is placed upon the exemption, the conclusion is irresistible that the exemption is broad ■enough in terms to cover the property in question.

The writ must issue.

The other Justices concurred.


author: Hooker, J.

text:
    OLD SECOND NATIONAL BANK OF BAY CITY v. ALPENA COUNTY SAVINGS BANK.

    Vendor and Purchaser — Land Contract — Forfeiture—Waiver. The vendor in a land contract, by filing a bill to foreclose his vendor’s lien, waives the benefit of a prior notice of forfeiture for default in payments given by him to the vendee.
    Appeal from Alpena; Kelley, J.
    Submitted January 4, 1898.
    Decided January 18, 1898.
    Bill by the Old Second National Bank of Bay City and Orrin Bump, trustee, against the Alpena County Savings Bank, Austin W. Mitchell, and John Millen, for the specific performance of a land contract. From a decree dismissing the bill, complainants appeal. Reversed as to defendant bank.

      C. L. Gollins, for complainants.

      J. D. Turnbull, for defendant bank.

       Rebearing denied February 16, 1898.

   Hooker, J.

On December 8,1891, Austin W. Mitchell, being the owner in fee of the premises described in the bill of complaint, sold them, upon a written executory contract, to Mosher & Son and Alvin Maltby. Prior to their disposal of their interest, they paid upwards of $90,000 of the purchase price, besides interest. On October 11, 1895, Maltby and wife quitclaimed their interest in the premises to the Old Second National Bank, and on October 15, 1895, Mosher & Son assigned their interest to Bump, which appears to have been for the benefit of said bank; and it seems to be understood by counsel that these instruments amounted to an assignment by the vendees of their interest in the contract to the bank and Bump, which the learned circuit judge determined was to secure a then existing indebtedness against them of about $22,000, due to the bank. At this time there was about $8,000 remaining unpaid upon the contract, which would mature on January 2, 1896. This was not paid, and on February 3, 1896, Mitchell caused a notice to be served upon the bank. The following is a copy of the substance thereof:

“There having been default made in payment of the amount due under the land contract of date December 8, 1891, between Austin W. Mitchell, as first party, and Alfred Mosher & Son and Alvin Maltby, as second parties, you are hereby notified of the determination of said contract, and that all said second parties’ rights therein are declared forfeited and void under the terms thereof.
“Austin W. Mitchell.
“Dated Cadillac, Mich., February 3, 1896.”

The following provisions of the contract should be read in this connection:

“But in case the said parties of the second part, or their legal heirs, representatives, or assigns, shall fail to make the payments aforesaid, or any of them, or any part thereof, punctually, and upon the strict terms, and at the times- and places above limited and provided, or shall fail to regularly and seasonably pay and discharge all said taxes and assessments that may hereafter become a lien upon said premises, or any portion thereof, or shall otherwise fail to keep, perform, and fulfill all or any of the promises, agreements, and covenants herein contained, to be kept and performed by the said parties of the second part, then the said party of the first part, or his representatives or assigns, shall have the right, upon 30 days’ written notice to said second parties, to treat and consider this contract as abandoned and forfeited by the said parties of the second part; and the said parties of the second part shall forfeit and lose all right and claim under this contract, and be liable to the said party of' the first part for damages, and shall thenceforth be deemed mere tenants of the said first party, holding over- after expiration of their term, and may be removed from said premises, without notice to quit (which is hereby by said second parties expressly waived), in the same manner as is provided by law for the removal of a tenant in such case. And it shall be lawful for the said party of the first part, at any time after the violation or nonfulfillment of any of the said agreements on the part of the said parties of the second part, to sell and convey the said land and premises, with the appurtenances, and the said party of the first part shall not be liable in law or equity, in any way or to any person, for damages in consequence of such sale, or to refund any part of the said purchase money or interest which shall have been paid under this contract, and all payments hereon which shall have matured and are due and unpaid at the time of such forfeiture shall not be affected by the same, but shall be paid to the said party of the first part as if no forfeiture had heen made. And it is hereby expressly covenanted and agreed that time is and shall be deemed and taken as the very essence of this contract; and that, unless the same shall in all respects be complied with by the said parties of the second part, at the respective times and in the manner herein limited and declared, the said parties of the second part shall lose and be debarred from all rights, remedies, and actions, either in law or equity, upon and under this contract, at the option of the party of the first part.”.

About the same time (February 3, 1896), Mitchell’s solicitor tendered a deed of the premises to the complainants, and demanded payment of an amount claimed to be due upon the contract. In the interview the liability of the bank was not denied, nor did complainants refuse payment. They did decline to pay at that time, upon the ground that they were entitled to further time, and claimed that under existing circumstances (whatever they may have been) the contract could not be forfeited, and that Mitchell’s remedy was by bill in equity. In this Mitchell’s counsel seems to have acquiesced, and a bill to foreclose the vendor’s lien was filed about the middle of March, 1896. These complainants did not answer until December. Other defendants answered as late as July 1st, and a replication was filed as late as June 4, 1896. Counsel for the complainants asserts that they meditated allowing the case to go to decree, and taking care of their interests by payment, or submitting to sale, as might seem best. Nothing appears to have been done in that case after July 1, 1896, and it is still pending.

We will now return to some transactions earlier in point of time than these last mentioned. Mosher & Son and Maltby became insolvent about October 15, 1895, and the defendant Alpena Savings Bank commenced an attachment against them, the lands described being attached. This was after the assignment of the contract to the complainants. Early in May, 1896, a quitclaim deed was given by Mitchell of his interest in this land to one O’Brien, a director of the Alpena Savings Bank, who then deeded to the bank, and on the 9th of May complainants’ solicitor, who had heard a rumor of this, wrote, upon behalf of the complainants, to the defendant bank, stating their claim, and that they had heard this rumor, asking to be informed whether it was true, and offering to make an exhibit of complainants’ proof, to show the priority of their claim over that of the defendant bank, and inviting correspondence with a view to an amicable adjustment of the matter. No answer was made to this, beyond an acknowledgment of its receipt. On or after January 2, 1897, the following letter was received by complainants’ solicitor. Its statements do not appear to be disputed:

“Cadillac, Mich., Jan. 2, 1897. “0. L. Collins, Esq.,
“ Bay City, Mich.
“Dear Sir: Yours containing answer in Mosher case is at hand. If I failed to answer your former letter, I must ask your pardon. The neglect was unintentional. I referred the inquiry as to the status of the case at that time to Mr. Michael O’Brien, of Alpena, who purchased the Mitchell end of the Mosher contract in May or June last. His expectation was to file a bill of revivor or take other steps to install him in Mr. Mitchell’s place in the pending suit, and I had supposed he had long ago done so. I today forward to him your copy ofu answer of Old Second National Bank, and suggest you write him for information regarding the case.
“Yours, etc.,
“E. E. Haskins.”

Upon receiving this letter, the complainants went to Alpena, and had an interview with the defendants, and offered to pay the amount due on the contract, principal and interest, and any amount they had in taxes, and on February 1, 1897, the offer was renewed by letter. It was as follows:

“Assuming that you have the Mitchell title to the land, I contend that as to that land, between myself on the one part, representing the Old Second National Bank of Bay City, and the Alpena County Savings Bank, holding the Mitchell title, the legal relation is that of mortgagor and mortgagee. And that there may be no misunderstanding between us, I hereby offer to pay up in cash and in full the principal, interest, and costs past due and unpaid on the land contract dated December 8,1891, between Austin W. Mitchell on the one part and A. Mosher & Son on the other part, for the sale of the land in question, including all amounts that you have paid as taxes on the land. I understand you to have declined such an offer from me verbally, but I make this offer in writing, so that, in a friendly, but plain, way, you may understand my position.”

This being refused, this suit was commenced on February 10th.

Counsel for the defendant sums up his reasons why complainants should not be granted relief, as follows:

“1. They refused to perform contract.
“2. They neglected to give notice within a reasonable time of their readiness and willingness to perform.
“ 3. Their rights in contract were duly forfeited by notice.
“1. They are prohibited by contract from maintaining suit.
“5. They denied liability under contract.
“6. They refused to accept proper deed when tendered.
“7.- They have adequate remedy at law, and under special facts of this case is the only proper remedy.
“8. They have trifled with this contract.
“9. They have nokbeen ‘ready, desirous, prompt, and eager ’ to perform on their part.
“ 10. They have no equities.”

In relation to these, we may say that the evidence convinces us that the complainants did refuse to perform the contract according to its strict letter, and defaulted in payment when they declined to pay the amount due at the time the deed was tendered. - Thereupon Mitchell served notice with a view to terminating the contract. Whether, under the terms of the contract, this notice was a sufficient one to support proceedings at law to enforce a forfeiture, we need not inquire, as no such proceedings were taken by Mitchell. On the contrary, he chose to treat the contract as continuing, and began proceedings with a view to enforcing its provisions, by collecting the contract price, through foreclosure of the vendor’s iien. We must therefore conclude that any meditated forfeiture was waived, the effect of the notice was nullified, and the status of complainants thenceforth was that of vendees in default. That this was an intentional waiver is more plainly indicated by the deed to O’Brien, in which the existence of the complainants’ contract rights was recognized, and subject to which Mitchell’s interest was conveyed. No other steps have been taken to forfeit this contract, and, within a few days after receiving authentic information of the conveyance from Mitchell to the Alpena Savings Bank, the complainants made an offer of performance, which the defendant bank refused to accept. A court of law would hardly adjudge the contract forfeited under these circumstances, and we discover no inequity in granting relief to the complainants. The defendant bank has no greater rights than Mitchell, and suffers no injustice when it receives full payment. Our understanding is that the controversy is between the complainants and the Alpena Savings Bank, defendant Millen having disclaimed, and Mitchell having no interest in the matter. No decree is asked against him, and we do not discover that he has appeared in this court.

As against the Alpena Savings Bank the decree will be reversed, and one entered in this court in favor of the complainants, in accordance with the prayer of their bill, with costs of both courts. The amount due upon the contract when this suit was commenced is adjudged to be as admitted upon the hearing by counsel for the respective parties, and will be definitely fixed by the decree. From that sum will be deducted the costs of both courts, which complainants will recover. As to the other defendants, neither party will recover costs.

The other Justices concurred.


text:
    CITY OF KALAMAZOO v. FRANCOISE.
    1. Municipal Improvements — Paving Tax — Assessment by Frontage.
    It is competent for the legislature to authorize the cost of paving a street to be assessed upon the abutting property according to frontage.
    2. Same — Designation oe Assessment District.
    The designation of a taxing district by its street frontage, where that method of assessment is to be followed, is a sufficient compliance with a charter provision requiring the common council, in cases of special assessments, to “describe or designate the lots and premises or locality to be.assessed.”
    Error to Kalamazoo; Ruck, J.
    Submitted January 7, 1898.
    Decided January 18, 1898.

      Assumpsit by the city of Kalamazoo against Cornelius Francoise to recover the amount of a paving tax. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      E. M. Irish, for appellant.

      E. S. Roos (A. J. Mills and Wm. G. Howard, of counsel), for appellee:

      In support of the validity of an assessment according to frontage, counsel cited: Cooley, Tax’n (2d Ed.), 644; Williams v. Mayor, etc., of Detroit, 2 Mich. 560; Motz v. City of Detroit, 18 Mich. 495; Sheley v. City of Detroit, 45 Mich. 431.
   Hooker, J.

The circuit judge directed a verdict for the plaintiff for -the amount of a paving tax assessed against the defendant on the basis of his lot frontage upon the street paved. The defendant attacks the judgment upon the ground that the resolution of the council did not define a legal taxing district, in that it was designated by its frontage, and that it is inequitable to assess an expensive pavement on a small portion of the city, while most streets are not paved. The charter provides:

‘ ‘ When any special assessment is to be made pro rata upon the lots and premises for any improvement, according to frontage or benefit, the city council shall, by resolution, direct the same to be made by the board of asessors, and shall state therein the amount to be assessed, and whether according to frontage or benefits, and describe or designate the lots and premises or locality to be assessed. The council may, in their discretion, in such resolution order a certain definite sum to be assessed upon each foot of frontage; and, in case they shall so order, the assessors shall assess such amount upon the frontage, instead of proceeding according to section 9 of this chapter.” Act No. 318, Local Acts 1885, chap. 22, § 7.

The resolution was as follows:

“ It is further resolved, that the sum of three dollars and twenty cents be assessed on each lineal foot frontage of all lands and premises abutting and fronting on either side of v East Main street (a portion of which is also known on the records as ‘Kalámazoo Avenue’), between the easterly rail of the main track of the Lake Shore & Michigan Southern Railroad, at the crossing of said main track with East Main street, and the westerly end of the most westerly bridge over the Kalamazoo river on said East Main street (a portion of which is also known on the records as ‘Kalamazoo Avenue’), said sum being one-third of the estimated cost per lineal foot of said improvement.”

This was in accordance with the discretion confided to the council.

The question of the right to pave certain streets, and assess according to street frontage, we must treat as settled by our own decisions. The authorities will be found cited in plaintiff’s brief.

The judgment is affirmed.

The other Justices concurred.