author: Bird, J. Fellows, J. Ostrander, C. J.

text:
    JOHNSTON v. LOOSE.
    1. Dower — Equity — Unadmeasured Dowee Interest — Assignments.
    The purchaser of an unadmeasured dower interest in lands may come into a court of equity for the purpose of ad-measuring such dower as against the heirs, and compelling conveyance by the widow after such dower is admeasured.
    2. Limitation oe Actions — Dower—Running oe Statutes.
    Under 3 Comp. Laws 1915, § 11661, the statute of limitations would not run against the right of a widow to have her dower assigned while she continued to reside upon the premises with the children, without objection by the heirs.
    3. Guardian and Ward — Trusts—Purchase oe Dower Interest •in Lands oe Wards — Validity.
    Where the guardian of minor heirs purchased the dower interest of-the widow in the lands of his wards, held, that while such purchase for his own benefit may not be prohibited by the literal terms of the statute (3 Comp. Laws 1915, §§ 14011,.11065), it is prohibited by the general principles of the law of trusts, and the wards, not the guardian, are entitled to the benefit of the purchase. Bird, J., dissenting.
    4. Same — Equity—Maxims.
    While the purchase of the guardian will be held to inure to the benefit of the wards, on the principle that he whu seeks equity must do equity, they will be required to account to plaintiff for the purchase price, with interest, he to be charged with rents and profits for the period, although it appears that shortly before these proceedings were brought the widow assigned to the heirs her dower interest. Ostrander, C. J., and Bird, J., dissenting.
    Appeal from Livingston; Hart, J., presiding.
    Submitted October 12, 1917.
    (Docket No. 98.)
    Decided June 3, 1918.
    Bill by Charles L. Johnston against Herman Loose and another, minors, to restrain an action of ejectment. From an order denying a motion to dismiss, defendants appeal.
    Modified, and remanded.

      Louis E. Howlett, for plaintiff.

      Glenn S. Mach, for defendants.
   Bird, J.

In March, 1900, Alfred Loose of Livingston county died intestate, leaving an estate consisting of real and personal property. The estate was duly probated and the real estate was assigned by an order of the probate court to his two infant sons, the defendants herein, subject to the dower rights of the widow. The real property consisted of a farm of 80 acres upon which Mr. Loose lived at the time of his death and upon which the widow and boys continued to live for a time after his death. Later the widow remarried and in 1910 sold to plaintiff her dower interest for the sum of $250, said interest being conveyed by quitclaim deed. At this time plaintiff was guardian of the two minor children, and after making the purchase he credited two-thirds of the income from the farm to the minors and retained one-third himself. This arrangement and division of income continued until the year 1916 when he was superseded as guardian by Glenn S. Mack. In February, 1917, the mother appears to have released her dower rights again, this time to her boys, and they commenced an action of ejectment against plaintiff to recover the possession of the farm. Plaintiff then filed this bill for the following purposes:

“(a) To restrain the ejectment suit.
“(b) To have the dower interest of the said widow in said premises admeasured and set off, and compel the widow to reconvey to him said lands so set off.
“(c) To have declared a subsequent deed made by said widow to the sons, bearing date February 6,1917, conveying her purported dower interest to them, set aside and declared to be null and void as a cloud upon plaintiff’s title thereto.”

Defendants answered and filed a motion, which was subsequently denied, to dismiss the bill for the following reasons:

(1) Because the plaintiff obtained no right, title or interest in and to the said premises by the conveyance above mentioned.

(2) Because the statute of limitations has run against his right to have the dower admeasured or set off.

(8) Because the conveyance made to him while he was guardian is null and void.

(4) Because only an action of ejectment could try the question involved.

(5) Because the court of equity has no jurisdiction.

1. Counsel agree that the quitclaim deed executed and delivered by the widow to plaintiff of her unadmeasured dower did not convey such a title thereto as would enable him to maintain ejectment under the authority of Galbraith v. Fleming, 60 Mich. 408. By the common law she could not maintain ejectment until her dower was admeasured. Our statute has changed this and permits her to maintain ejectment to recover her dower before it is admeasured. (3 Comp. Laws, §§ 10948-11004, 3 Comp. Laws 1915, §§ 13169-13219). But the statute does not authorize another, to whom she has assigned her interest, to do so. Galbraith v. Fleming, supra. While it is true that plaintiff has no such interest as would enable him to maintain ejectment or to make a legal defense to an action of ejectment, he has an equitable interest by reason of the assignment, which may be converted, by a court of equity, into a legal title. Id. This is plaintiff’s position: He prays that the ejectment suit may be stayed until he can appeal to a court of equity to transform his equitable interest into a legal one so that it will be available as a defense in the ejectment suit. This is a reasonable request and he should have his day in court upon this proposition before being forced to make a defense in the ejectment case if there are no legal barriers in the way.

2. The claim is made that the statute of limitations has run against the right of the widow to have her dower assigned; that six months after the decease of her husband she had the right to have her dower ad-measured (3 Comp. Laws, § 10948, 3 Comp. Laws 1915, § 13169), not having done so within 15 years it is now too late. It appears that the widow continued to live on the premises after the death of her husband and the inference is from the pleadings that she lived there until she was remarried, about the year 1909 or 1910. If she did reside there without objection from the heirs under permission of the statute (3 Comp. Laws, § 8929, 3 Comp. Laws 1915, § 11661), the statute of limitations would not run during that time. This statute provides that:

“When a widow is entitled to dower in the lands of which her husband died seised, she may continue to occupy the same with the children or other heirs of the deceased,' or may receive one-third part of the rents, issues and profits thereof so long as the heirs or others interested do not object, without having the dower assigned.”

The record is not as satisfactory as it might be to enable us to determine this question, but in view of what it does show we hesitate to declare the right barred for the reason urged.

3. It is further insisted that the transfer of the dower interest to plaintiff was void because he was at the time guardian of the boys and they were owners in fee of the farm. This contention is based upon sections 9095,11065, 3 Comp. Laws (3 Comp. Laws 1915, §§ 14011, 13307):

‘*(9095). The executor or administrator making the sale, and the guardian of any minor heir of the deceased, shall not directly or indirectly purchase, or be interested in the purchase of any part of the real estate so sold, and all sales made contrary to the provisions of this section shall be void; but this section shall not prohibit any such purchase by a guardian for the benefit of his ward.”
“(11065). No such master, nor any person for his benefit, shall be interested in the purchase, nor directly or indirectly purchase any of the premises sold; nor shall any guardian of any infant party in such suit, purchase or be interested in the purchase of any lands, being the subject of such suit, except for the benefit or in behalf of such infant; and all sales contrary to the provisions of this section shall be void.”

The statutory inhibition contained in these sections we think is aimed at purchases made by guardians at public or official sales in respect to which they owe some duty to their wards. The interest which plaintiff purchased was one created by law for the benefit of the widow. It was a distinct interest which she owned and one in which his wards had no concern, and whether much or little was paid for the dower interest would not affect them. It was a private sale in which plaintiff’s official duty did not conflict in any way with his private interest. To give these sections the construction urged by defendants would be to include therein sales not contemplated by them.

4 and 5. What has already been said herein will indicate our views sufficiently to dispose of the questions raised under these heads.

The • order denying the motion should be affirmed with costs to plaintiff.

Fellows, J.

I agree with Mr. Justice Bird that a purchaser of an unadmeasured dower interest may come into a court of equity for the purpose of ad-measuring such dower as against the heirs, and compelling conveyance by the widow after such dower is admeasured. I also agree with him that we cannot say upon this bill, that the statute of limitations has run against such cause of action. But I do not agree that the guardian of these minors may purchase, in his own name and for his personal benefit, the dower interest of the widow in the lands to which his wards hold the fee. Such purchase by private contract may not be prohibited by the literal terms of the two statutory provisions quoted, but it is prohibited, in my judgment, by the general principles of the law of trusts. This plaintiff was the guardian of these minor defendants. As such guardian he was charged with a most sacred trust, a most sacred duty, that of guarding their interest for their benefit and for their benefit alone. When a trustee undertakes to manage for others he undertakes not to manage for his own benefit. He must not put himself in any position where his self interest may in the slightest degree have any tendency to conflict with the interest of the cestui que trust. To prevent this he may not personally traffic or deal in any way with the trust property, either by purchasing at public sale or by private contract. It is no answer to say that the transaction is in all regards fair and free from fraud; it is no answer to say that full value was paid; nor where the sale was a judicial one, that the sale was to the highest bidder and the proceedings regular. The trustee may deal with the trust property for the benefit of the cestui que trust as his or her .interest may require, but for himself and for his own benefit he may deal with it not at all. Courts of equity must be most vigilant in the protection of the cestui que trust. They must be constantly on guard to protect the interests of minor wards. As was remarked by Lord Eldon, in Hatch v. Hatch, 9 Ves. 292:

“If the court does not watch these transactions with a jealousy almost invincible, in a great majority of cases it will lend its assistance to fraud.”

It has, therefore, frequently been stated that not only is the rule designed to prevent fraud on the part of the trustee, but also to prevent the temptation to commit fraud; and to eliminate such temptation the transaction of the trustee, if beneficial to the trust estate, will inure to the benefit of the estate at the option of the cestui que trust, or by order of the court; while if disadvantageous to the estate the loss must fall upon the trustee.

Sparhawk v. Allen, 21 N. H. 9, is quite analogous to the instant case. In that case defendant Allen was the guardian of the minor children of John B. Spar-hawk. One George Sparhawk had by his will bequeathed to his wife Mary one-half of his personal property, and devised to her the use of one-third of his real estate; the residue was given to these minors. Upon the advice of Allen, who was a nephew of Mary, she elected to take under the statute. This gave her a larger amount of property than the will, as there were no lineal descendants. Allen then acquired by contract with the widow her interest in the estate. It was held that Allen being the guardian of the minors could not thus contract with reference to the trust property, and that such contract inured to the benefit of the trust estate; that the purchase by the guardian was illegal and he could derive no benefit from it.

I think the purchase by the plaintiff of the dower interest in the lands of his wards for his own use was in violation of his trust and illegal, and that he is not entitled to benefit by it, and I think this is settled by the reasoning underlying the decisions of this and other courts; among the numerous cases dealing with the subject see, Dwight v. Blackmar, 2 Mich. 330; McKay v. Williams, 67 Mich. 547; Terry v. Tuttle, 24 Mich 206; Clute v. Barron, 2 Mich. 192; Clements v. Cates, 49 Ark. 242; Hindman v. O’Connor, 54 Ark. 627; Taylor v. Calvert, 138 Ind. 67; Ingram v. Heintz, 112 La. 496; Webb v. Branner, 59 Kan. 190; Thornton v. Gilman, 67 N. H. 392; Brandau v. Greer, 95 Miss. 100 (see note to this case in 21 Am. & Eng. Ann. Cas. 1119); Downs v. Rickards, 4 Del. Ch. 416; Davoue v. Fanning, 2 John. Ch. (N. Y.) 252; Torrey v. Bank of Orleans, 9 Paige (N. Y.), 649; Greenlaw v. King, 5 Lond. Jur. 622; Michoud v. Girod, 4 How. (U. S.) 503.

In Clute v. Barron, supra, Chief Justice Whipple fully reviewed the cases, both English and American, and it was there held that the county treasurer bore such trust relations to the property sold by him for delinquent taxes as to prevent his purchase of such property.

The rule is so clearly stated by the Chancellor in Downs v. Rickards, supra, that I quote from that case:

• “The principle upon which the disqualification of the trustee to buy the trust estate rests, is a very broad one, and extends, as well to sales conducted by others, as to those conducted by himself. The principle is that one shall not act for himself in any matter with respect to which he has duties to perform or interests to protect for another. The trustee of real estate, which happens, during the continuance of the trust, to fall under some judicial process of sale, such as execution process, sale in bankruptcy, or, as in this case, an order of the orphans’ court, stands in this position. Though he has not the management of the sale, he had in charge the interests of the cestui que trust, as they may be affected by the sale, and standing in the place of his cestui que trust, he is not allowed to act for himself. The principle looks, not merely to prevent fraud in the management of the sale, but to the broader object of relieving trustees from any possible conflict between duty and self interest.
“The rule is one of the widest application. It applies, not only to trustees, in the strict technical sense, but to all persons holding fiduciary confidential relations, such as assignees in bankruptcy, executors and administrators, attorneys and solicitors, and with the greatest stringency to guardians. 1 Story’s Eq. Jur. §§ 321, 322; 2 Sugd. on Vend. chap. 19, § 2, par. 1. The prohibition does not depend upon any question of fraud or improper advantage made by the purchase. However fair the sale, and adequate the price, the court will set it aside. In view of the difficulty of unraveling fraud in these transactions, the policy of the r,ule is, to exclude the possibility of it by making the prohibition absolute.”

In the instant case those minors owned the fee of the premises in question, subject to the dower interest of the widow. This plaintiff was their guardian and trustee for their estate. ' While so acting he purchased that dower interest. It is highly probable that the purchase was an advantageous one, or he would not have made it. He took that interest in the lands to which his wards held title for his own use and benefit. If it was an advantageous purchase, and we must assume it was, the cestui que trust, not the trustee, was entitled to the benefit. He could not traffic to his personal advantage in outstanding interests in the lands of his wards. He could not buy up for his own use a mortgage, he could not purchase a tax title for his own benefit, he could not, for himself, directly or indirectly, buy at execution sale, or at any judicial sale; by the same token he may not buy, for his own use, the dower interest to which the lands are subject. Upon partition proceedings his self-interest would be entirely antagonistic to his interest and his duty as trustee. To sustain the plaintiff’s claim would break down the salutary rules prescribing the conduct of trustees when dealing with trust property and expose the rights of minors to the adroit management of an interested trustee. He may not act for his own benefit, he must act for the benefit of the cestui que trust. The wards, not the guardian, are entitled to the benefits of this purchase.

But he who seeks equity must do equity. I do not think this bill should be dismissed. I think these minor defendants, acting through their present guardian, may elect to accept the benefit of this purchase. If they do, and treat this purchase as one for their benefit, their estate must account to the plaintiff for the purchase price. Upon such accounting the plaintiff would be entitled to the amount paid, with simple interest at five per cent, together with taxes, if any, that have been paid, and would be chargeable with the rents and profits for the period. For this purpose I think jurisdiction should be retained and the case remanded for such proceedings as may be had not inconsistent herewith. I think the costs should abide the final determination of the case.

Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred with Fellows, J.

Ostrander, C. J.

I agree to the conclusion of Mr. Justice Fellows except that I am of the opinion that the heirs — children—should not be compelled to repay the sum the guardian paid for the mother’s dower interest. They have already rightfully acquired that interest.


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    BROWN v. A. F. BARTLETT & CO.
    1. Contracts — Construction—“Profits”—Parol Evidence.
    That the surrounding circumstances and the connection in which the term “profits” is used in an instrument may present such uncertainty as to render parol evidence admissible for the purpose of ascertaining the sense in which it is used, has been recognized.

    2. Same.
    Neither does a well-recognized technical meaning of a term necessarily preclude oral evidence of an intended or understood modified meaning, where the circumstances and language in connection with, which it is used tend to obscure it and leave in doubt the light in which the parties to the agreement regarded it.
    3. Same — Construction Against Party Preparing Contract.
    Where the written agreement sued upon was prepared by defendant’s president,. its doubtful or incomplete provisions are not to be construed to defendant’s advantage.
    4. Same — Construction—Parol Evidence.
    In an action by a salesman for commissions claimed to have been earned in pursuance to the terms of a written contract of employment which provided for the payment of a commission to plaintiff on all orders procured by him and sold at a profit to defendant, and which further provided that plaintiff should carry out the instructions com” municated to him from time to time, oral testimony of plaintiff that defendant’s president instructed him that cost would be made by adding 20 per cent, for overhead to actual cost of labor and material was admissible, since the written instrument was incomplete and did not express the entire agreement or understanding of the parties.
    5. Same.
    The contention by defendant that costs of which plaintiff could have no knowledge and which could only be ascertained at the end of the year should be included in determining whether defendant had made a profit was inconsistent with the terms .of the contract, which provided for the payment to plaintiff of the commission 30 days after an order sold at a profit had been paid for.
    6. Same — “Profits”—Construction.
    Where an employee is to have a per cent, of the net profits when realized on certain contracts, only necessary expenses or disbursements on account of such contracts are to be deducted, and not all the expenses incidental to the management of the employer’s business.
    7. Same — “Profits”—Construction—Parol Evidence.

      Helé, that the written contract in question did not so plainly express the full and final intention of the parties upon the question of “profits” as to preclude resort to oral testimony to determine its meaning.
    Error to Bay; Houghton, J.
    Submitted October 19, 1917.
    (Docket No. 57.)
    Decided June 3, 1918.

      Assumpsit by Edward W. Brown against A- F. Bartlett & Company on a contract of employment. Judgment for plaintiff. Defendant brings error-
    Affirmed.

      John F. O’Keefe, for appellant.

      Stoddard & McMillan, for appellee.

       See note in 4 L. R. A. (N. S.) 980.

   Steere, J.

Defendant is a corporation, located in Saginaw, Michigan, where it is engaged in the manufacture of certain kinds of machinery, operating a plant consisting of a foundry, boiler shop, machine, pattern and blacksmith shops with requisite equipment. It also as a part of its business does repair work of certain kinds and so-called “original jobs” in manufacturing and installing, complete with equipment at an agreed price, such machines or appliances as it manufactures and deals in.

Plaintiff, who was experienced in that line of work and had previously “sold machinery on the road” for others engaged in similar business, entered defendant’s employ on February 8, 1915, under the following contract:

“Saginaw, Michigan, January 26,1915.
“Mr. E. W. Brown,
“Bay City, Michigan.-
“Dear Sir: A. F. Bartlett & Co. of Saginaw, Michigan, is willing to employ you as a traveling salesman and pay you for your services a salary at the rate of $1,500 per year, together' with the amount of your legitimate traveling expenses necessarily incurred in developing business for the company, salary to be paid semi-monthly.
“In addition to the above we will pay you a commission of five per cent of the receipts of the company on all orders procured by you for machinery, provided such orders are executed and sold at a profit for the company, such commission also to apply on all orders received by us from new customers within twelve months from the date .of the first order; no commission to be paid you on orders taken and filled by the company without profit. This provision, however, not to apply to regular business taken-in the cities of -Saginaw and Bay City, Michigan. No commissions are to be due or paid you until thirty days after full payments on orders have been received by the company.
“It is understood that you will devote your entire time and attention to the company’s interests, work in harmony with its management, and carry out such instructions in connection with the development of the company’s business as it may communicate to you from time to time.
“The above arrangement will continue in full force and effect for a period of one year and thereafter either party hereto may terminate this arrangement by giving the other party thirty days’ notice of his desire to do so. •
“If the above proposition is acceptable to you, kindly note your acceptance on the line indicated below.
“A. F. Bartlett & Co.,
“By A. M. Lemke, President.
“I hereby accept the above proposition this 27th day of January, A. D. 1915.
“E. W. Brown.”

Plaintiff remained with defendant about .13 months, leaving because his services were not satisfactory, as its president claimed, who testified of the occasion for his quitting in part as follows:

“I told him we couldn’t afford to keep him; that he was not earning us any money, and he resigned, gave us thirty days’ notice according to his contract.”

In May, 1916, plaintiff commenced this action against defendant in the circuit court of Bay county, claiming in his declaration that there was yet due him from defendant under his contract of hiring $28.84 unpaid salary and $1,057.12 for commissions earned.

Defendant pleaded the general issue with a lengthy notice of recoupment for damages resulting from losses sustained in filling orders taken by plaintiff contrary to instructions, for wages paid him covering time in which he falsely claimed to be working for defendant out was idle, and for $68.53 expense money furnished him but not used for that purpose nor accounted for.

As to plaintiff’s salary of $1,500 per year and necessary traveling expenses provided for in the contract there is little dispute. Defendant showed by its testimony that it had paid him $125 per month until he left, amounting to $1,668.20, and furnished him on expense account $791.99, for $68.53 of which he had not accounted. He admitted upon the trial that this item was a proper charge against him, but claimed a credit for one week more time than was paid him, amounting to $28.84, in addition to unpaid commissions earned, the balance computed from his testimony and claimed due him on his theory at the close of the evidence, as. stated by the court, being $682. A verdict was returned by the jury in his favor for $400 and judgment was rendered thereon.

The contested issues upon the trial were how profits should be computed under the facts shown and terms of the contract and when properly computed, what, if any, orders procured by plaintiff entitled him to a commission which he had not been paid.

Of plaintiff’s instructions and the nature of his services Mr. Lemke, the president of the company, testified:

_ “I told him he would be traveling salesman, furnished with prices from time to time, as they varied, and he would be told what to charge. * * * Well, when we heard of a plant being built we sent him up there to see what machinery they wanted, and instructed him to sell the machinery, and he was provided with price list, cost and discounts every time he went out on a trip; if there was any changes he would go to the place to figure up what the man wanted, make a list of it, use his discount sheet, price of the material, make up his cost and add his profit.
“Q. Who made these figures on these several jobs?
“A. Well, he made all his figures with the exception of appertaining to the structural steel.”

This was subsequently further explained, or modified, as follows:

“Mr. Brown was furnished with these catalogues to use in his solicitation and also with discount sheets, showing what discounts he could from time to time allow off from the prices. He was required to use these catalogues and discount sheets in getting his cost. * * * When there was a special order upon which something had to be made different from the. regular line, or the articles which we were listing in our catalogues, as a rule drawings were made first, from which estimates were made; from these drawings the estimates by the different men in the different departments, depending upon where the work was going to be done. These estimates showed what the cost would probably be, as near as could be determined, in the respective departments, and w<ere given to Mr. Brown to aid him in fixing his prices; he was supposed to use them to make the prices-high enough to cover the estimate at a profit.”

Of this plaintiff testified:

“Mr. Lemke and Mr. Stevenson fixed the price at which I could sell or take an order from a customer. Mr. Stevenson was the foreman of the boiler shop. The general process of taking an order was that I made out a specification of what the customer wanted. I generally did that; then took the discount sheet which Mr. Lemke had seen was given me, changed from time to time, took the discount off from the price list and submitted it to my customer, sometimes handing that to Mr. Lemke to get his O-K on it, and if there was any work that came to the boiler shop it was given over to Mr. Stevenson, the plans, Mr. Stevenson made me a price on it for me to submit. It was the instructions of Mr. Lemke that I was not to make anything on the structural steel end of it. These instructions were given me by Mr. Lemke at the time the contract was made. Upon making those specifications out I submitted them to my customer. After submitting them to my customei I did not always submit them to any one in connection with the defendant, sometimes I did.”

Against defendant’s objection that the proposed testimony, which had been previously debated, was incompetent "for the reason that it is an attempt to modify the terms of this contract,” the following, testimony of plaintiff was introduced:

“Q. Now, will you state what, ii anything, was said by Mr. Lemke at the time the contract was made concerning what you were to take into consideration as determining the cost of the articles for which you were to take orders?
“A. There was, before signing the contract, I asked Mr. Lemke to define how the costs were going to be made. . He said, at actual cost of labor and adding twenty per cent, for overhead. And then I went back into his private room and signed the contract.
“Q. I understand, then, that the items to be considered were the actual “cost of labor and — material?
“A. Actual cost of labor and material and twenty per cent, for overhead. Yes, sir.
“Q. Will you state whether or not you acted upon that definition in making prices?
“A. I did, except where the discounts were given me and I had nothing further to go by. An original order was made out when I took a contract. I made the original order, that was sent to the office, given to the order clerk. The original order is the specification for the machinery or the castings, whatever it was, and the price. * * * I did not know how they figured costs except as told me by Mr. Lemke.”

On cross-examination:

“Q. So you didn’t charge anything, then, for overhead?
“A, I didn’t put it in that way.
“Q. How did you put it?
"A. I tried to make what profit I could, which was my instruction.
“Q. You don’t know whether you added 20 per cent, or not?
“A. I am positive I added more than that.”

Amongst the exhibits introduced in evidence by defendant were certain so-called cost sheets which showed 10 per cent, added to material, 150 per cent, to labor and 11 per cent, for selling expense which Lemke testified was the amount he determined upon “when we started, based on doing a greater amount of business * * * when we engaged Mr. Brown.” Of the items going to make up overhead charges he enumerated—

“ — taxes, fire insurance, indemnity insurance, cyclone insurance, nonproducing help such' as supervision, office help, coal, under the boiler, electric lights, electric power and the repairs of the different departments, fixing buildings and' roofs, breakage and depreciation, wearing out of small tools such as drills, files, oils, waste, brushes, shovels, picks, chisels, blacksmith coal, belting, grease, paint — ”

and testified that these items do not appear in the accounts of each order as shown upon their invoices made up by the cost department and posted into their books, but are determined at the end of the year and they “cannot tell what the overhead is at various times or on various days during the year.” Of a statement for earned commissions rendered by plaintiff in October, 1915, amounting to $97.96 paid November 4 by Lemke’s direction, he explained that plaintiff told him all the orders it included showed a profit and he did not ask him to wait until the end of the year for them. Of an exhibit containing a list of 47 orders showing name of customer, order number and price of each, dated January 15, 1916, and turned in to defendant for earned commissions, plaintiff testified that when Lemke handed it back to him he said he had marked on the orders those that were correct, that there was no profit on some and others he would have to look up. Three of these orders were marked “no profit,” two “loss” and ten “O-K.” Of this Lemke testified the O-K indicated the amounts were correct according to the invoices, and he had told plaintiff that when the expenses of the year were compiled and all figured up they would pay commissions on those he was entitled to.

The testimony of defendant’s witnesses as to proper overhead charges and the manner of arriving at them was not altogether in harmony. An expert accountant from Chicago, called by defendant to examine its books in relation to this matter, testified that as he analyzed defendant’s expense accounts, to provide properly for overhead charges, “so termed,” in the nature of nonproductive labor, taxes, insurance, etc., 219% per cent should be added to productive labor, which Lemke was willing to admit might be an improvement on his plan.

While several errors are assigned by defendant the only one seriously urged and argued in counsel’s brief is the court’s admission, against objection, of plaintiff’s testimony that prior to signing the agreement Lemke said in reply to his inquiry that costs would be made by adding 20 per cent for overhead to actual cost of labor and material.

It is contended by defendant this testimony violates the elementary rule that contemporary parol evidence is never admissible to contradict or vary the plain terms of a valid written instrument and this written agreement expressly provides that no commission is to be paid on orders filled by the company without profit, in contradiction of which plaintiff was permitted to testify in effect that upon orders not executed at a profit he was to receive a commission if they showed a profit on actual cost of labor and material with 20 per cent, added for overhead, although it is shown there should have been added to actual cost of labor 219% per cent for overhead and as a matter of fact the orders he claims a commission on were executed at a loss; that the word “profit” has a fixed and definite meaning not subject to change or modification by oral testimony and the written contract is in its provisions complete and unambiguous.

For plaintiff it is denied that the testimony complained of is an attempt to contradict the plain provisions of the written agreement, but its legitimate purpose is to supplement the same, make clear apparent inconsistencies and show in what sense the parties themselves understood and used uncertain and ambiguous words or phrases. The rule invoked upon that proposition is thus well stated in 17 Cyc. p. 682:

“Where any doubt arises as to the true sense and meaning of the words themselves, or .any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument, for both reason and common sense agree that by no other means can the language of the instrument be made to speak the real mind of the party. In this case parol evidence is admissible ex necessitate.”

Defendant’s principal contention is that the word “profits” has a fixed and definite primary meaning in merchandizing or manufacturing, signifying the same as net profits, construed by the courts to designate acquisition beyond expenditure, or the difference between what it cost to manufacture and sell a commodity and what it brought, citing the well-known case of Rubber Co. v. Goodyear, 76 U. S. 788, and various other cases so defining profits. It may be noted that in the cases cited by defendant for positive definition the courts were discussing profits arising from a business activity in its entirety or a continuous course of business and not the term “profit,” or “at a profit” from each executed order considered separately as provided in this agreement.

That the surrounding circumstances and the connection in which the term “profits” is used in an instrument may present such uncertainty as to render parol evidence admissible for the purpose of ascertaining the sense in which it is used, has been recognized. Snyder v. Seaman, 37 N. Y. Supp. 696. Neither does a well-recognized technical meaning of a term necessarily preclude oral evidence of an intended or understood modified meaning, where the circumstances and language in connection with which it is used tend to obscure it and leave in doubt the light in which the parties to the agreement regarded it. The expression “extension of time” has a well-defined legal meaning in connection with negotiable paper, but in sustaining the admission of oral testimony to show a modified sense intended by the parties using it this court said, speaking through Chief Justice Hooker, in Borden v. Fletcher's Estate, 131 Mich. 220:

“The language used in this writing is not necessarily ambiguous, but, when taken in connection with the circumstances, is susceptible of a different construction from that which its language imports if taken in its technical sense; yet it is doubtful if the sense contended for by the claimant is not that which would be generally understood by persons outside of the profession of the law. (Citing cases.) Parol evidence is admissible to aid in arriving at the intention of the parties in the use of equivocal words in a contract. The rule is stated in 2 Am. & Eng. Enc. Law (2d Ed.), p. 291, as follows:
“ ‘The true doctrine seems to be that, while direct evidence of intention is not admissible in explanation of ambiguous terms in a writing, yet proof of collateral facts and surrounding circumstances, existing when the instrument was made, may bo properly admitted, in order that the court may be placed as nearly as possible in the situation of the testator, or contracting parties, as the case may be, with a view the better to adjudge in what sense the language of the instrument was intended to be used, and to apply it to the subject matter.’ ”

In Ganson v. Madigan, 15 Wis. 158, it is said of interpretations put upon obscure portions of an agreement by the parties themselves at the time it is made:

“If evidence of surrounding facts and circumstances is admitted to explain the sense in which the words were used, certainly proof, of the declarations of the parties, made at the time of their understanding of them, ought not to be excluded. (Citing cases.) Such declarations, if satisfactorily established, would seem to be stronger and more conclusive evidence of the intention of the parties than proof of facts and circumstances, since they come more nearly to direct evidence than any to be obtained, whilst the other is but circumstantial.”

In this case the agreement did not define costs, which are an essential in determining profit, in a sense a collateral matter making the meaning of the contract as to that provision uncertain, and it could.be contended with reason that the oral testimony was admissible because the incomplete written instrument does not express the entire agreement, or understanding, of the parties in that particular. This agreement was prepared by defendant’s president. Its doubtful or incomplete provisions are not to be construed to defendant’s advantage. As a legal document It is Imperfect and shows its informality on its face. In Butler v. Iron Cliffs Co., 96 Mich. 70, the applicable rule in such cases is quoted with approval from Jones on Construction of Commercial and Trade Contracts, § 134, as follows:

“The test of the completeness of the writing proposed as a contract is the writing itself. If this bears evidence of careful preparation, of a deliberate regard for the many questions which would naturally arise out of the subject-matter of the contract, and if it is reasonable to conclude from it that the parties have therein expressed their final intentions in regard to the matters within the scope of the writing, then it will be deemed a complete and unalterable exposition of such intentions. If, on the other hand, the writing shows its informality on its face, there will be no presumption that it contains all the terms of the contract. In every case, therefore, the writing must be critically examined in the light of its surrounding circumstances, with a view of determining whether it is a memorial of the transaction.”

This contract provided that plaintiff should carry out such instructions as defendant might communicate to him from time to time. The oral testimony as to what defendant’s president said when they made the contract was both in the nature of an instruction and his interpretation of what he had just written. Lemke testified that he told plaintiff he would be furnished with prices from time to time and be told what to charge; that he was required to use the catalogue and discount sheets furnished him “in getting his costs that on special orders, or “original jobs,” estimates showing the cost were made by different men in different departments upon the cost of specially made articles and furnished plaintiff to aid him in fixing prices “high enough to cover the estimate at a profit.” Plaintiff testified that he so used the information furnished him and followed instructions, not knowing how they figured costs except as Lemke told him. It is not claimed Lemke told him to include 219% per cent, added to productive labor, or 150 per cent, to labor with 10 per cent, to material and 11 per cent for selling expense, which did not appear in the invoices of the orders made up by the cost department, nor as they were posted in the books. The costs contended for by defendant at the trial were made up of a large number of items which plaintiff did not and could not know as orders were placed, which Lemke himself stated would be determined at the end of the year and could not be told at various times or on various days during the year. This contract drawn by Lemke contemplated payment of commissions from time to time on individual orders 30 days after an order sold at a profit had been paid for, necessitating for each transaction a basis on which profits could be determined within that time, manifestly inconsistent with defendant’s present theory.

It appears from defendant’s evidence that there are different ways of determining costs, or whether an order was executed at a profit, and it has been held that when an employee is to have a per cent, of the net profits when realized on certain contracts, only necessary expenses or disbursements on account of such contracts are to be deducted, and not all the expenses incidental to management of the employer’s business. In re British Columbia, etc., Saw Mill Co., 25 L. T. Rep. (N. S.) 653.

It cannot be said that the terms “profit,” or “at a profit” have such fixed and inflexible meaning as to preclude modification in whatever connection used. This writing in itself does not so plainly express the full and final intention of the parties upon the question in controversy, which is naturally a matter within its scope, as to preclude resort to oral testimony to determine its meaning. For the purpose proposed we think the testimony was admissible.

The judgment is therefore affirmed.

Ostrander, C, J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


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      In re SADLER’S ESTATE. SADLER v. SADLER.
    1. Banks and Banking — Joint Deposits — Ownership—Survivor-ship — Statutes.
    Where a fund was deposited in a bant in the joint names of mother and son, payable to either or the survivor, in the absence of evidence to the contrary, section 3, Act No. 248, Pub. Acts 1909 (2 Comp. Laws 1915, § 8040), fixes the ownership of the fund in them as joint tenants, with the attendant right of survivorship.
    2. Same — Appeal and Error — Harmless Error.
    In proceedings by the administrator of a mother’s estate against the estate of her son for the value of certain cer- ■ tificates of deposit in the joint names of mother and son payable to either or the survivor, where the evidence shows that these certificates were renewed from time to time, and understandingly indorsed by the mother, the statute establishes the ownership, and the questions of gift inter vivos and undue influence, claimed to have been erroneously submitted to the jury become unimportant, since the jury found in defendant’s favor.
    3. Trial — Instructions—Burden op Proof — Fiduciary Relations.
    Refusal of repeated requests to charge that the burden of proof rested upon defendant to show that there was no undue influence by reason of the fiduciary relations existing between mother and son was not erroneous, where the question was properly covered by the general charge and twice repeated to the jury when they returned for further instructions.

    4. Same — Instructions.
    Where one of the jurors asked the court as to the use they might make of the fact that there was undue influence in regard to the deeding of certain land to defendant by his mother, not in issue in the case, the court was not in error in responding that they had nothing to do with the land in their verdict; that they could only consider that as bearing upon the question in issue; that if they found influence was used in the deeding of the land, it would not of itself show that influence was used in the other matters; and that they would also have to find influence was used as to the certificates of deposit and the notes.
    Error to Ottawa; Cross, J.
    Submitted October 18, 1917.
    (Docket No. 11.)
    Decided June 3, 1918.
    Charles M. Abbott, administrator of the estate of Phila M. Sadler, deceased, presented a claim against the estate of Franklin Sadler, deceased, for the amount of certain promissory notes and certificates of deposit. The claim was allowed in part, and plaintiff appealed to the circuit court. Judgment for plaintiff for less than amount claimed. Plaintiff brings error.
    Affirmed.
    A. E. Ewing and Smedley & Linsey, for appellant.

      Lillie, Lillie & Lillie, for appellee.

      See note in 35 L. R. A. (N. S.) 944.

   Steere, J.

The parties out of whose estates this litigation arose were mother and son. Phila M. Sadler died on December 23, 1912, then upwards of 79 years of age. Franklin Sadler died March 25, 1914, well past middle life, leaving a widow to whom he had been married over 40 years, and two grown children. This proceeding was commenced by the administrator of her estate filing a claim against his estate in the probate court of Ottawa county on July 28, 1916, consisting of numerous items for amounts of money claimed to have belonged to her and received by him while assisting her in business matters, with interést thereon, aggregating over $5,000. At the hearing before the commissioners on claims in the probate court but two items of said claim were allowed, with interest, amounting to $277.51. On appeal taken by the administrator of Phila M. Sadler’s estate to the circuit court of Ottawa county a retrial by jury resulted in a verdict of $254.80. The case was then removed to this court by writ of error, appellant’s numerous assignments condensing into the two propositions that the court erroneously refused to instruct the jury as requested in various particulars, and in the charge as given. Upon the trial in the circuit court, as stated by the court in his charge and not denied, all items of plaintiff’s claim as filed in the probate court were abandoned except for three bank certificates of deposit — one for $2,400, one for $400 and one for $80,— $98 in cash and a note given her by one Abbott for $156.80.

Phila M. Sadler, and her husband, Henry, who died in 1915, aged over 90 years, were pioneers of the township of Wyoming in Kent county, where they owned and resided upon a farm of 80 acres during most of their married lives. They had three children who arrived at maturity and were married — a daughter yet living, a son Edwin who died in 1908, leaving a wife, grown son and daughter, and Franklin against whose estate this claim is filed.

Briefly stated, as bearing upon the relations and situation of the parties, the testimony shows that as they approached old age and their children had grown up and married, the parents made an arrangement with Edwin, the oldest of the two sons, to live with or near them and run their farm, they making out to him a deed of 40 acres of it, upon which they retained a life lease, placing said deed in escrow, at the same time making another deed, which they also placed in escrow, of the other 40 acres of their farm to their son Franklin, who lived upon his own place in the adjoining county of Ottawa, but not far from the home of his parents. Edwin moved with his family onto the 40 acres designed for him, built a house upon it in which he lived, working the whole farm and giving his parents a third of the proceeds. In 1907 he sold his personal property and went west, but soon returned and remained upon the place until he died. After his death his widow continued to live upon the 40 for a season, attempting to carry on the farm as her husband had done. While she yet remained on the place the deed to Edwin which had been in escrow for him was taken up and destroyed, and a new deed running to her was put in escrow instead. She remained upon the place for near a year, then remarried and went away to Canada. The deed to her in escrow was destroyed before she left the farm and a new deed of that 40 running to Franklin was put in escrow. There is testimony indicating on the one hand that Franklin induced his parents to make this change in his favor, and on the other that it was done because Edwin’s widow was about to remarry and leave the old people and place, as she soon did.

Little is shown as to Henry Sadler’s activities and he only figures, in this controversy incidentally, but it does appear that his wife Phila for many years was the active manager of their home and business affairs, looking after the farm, hiring men, renting fields, selling produce, making purchases, doing the banking, loaning money, etc. They lived their long lives together in harmony so far as shown, were apparently forehanded and reasonably prosperous. She had money which she handled as her own, making deposits in banks and loans in her own name. Her husband who survived her is not shown to have claimed any interest in it and her ownership of the amounts in controversy here is not questioned. Until Edwin’s death the old people depended upon him for such help and counsel as they needed or desired. After his death they looked to and consulted with Franklin for filial attention, aid and counsel as occasion arose. It is plaintiff’s claim that they had confidence in him, depended upon him, deferred to his judgment, and were largely influenced by him in their views and conduct; that after his mother became mentally and physically enfeebled by age and ill health he took advantage of such fiduciary relations to unduly influence her to put into his possession her bank deposit certificates, notes and money, and permit him to manipulate them, taking renewals of paper in the name of both, or to the survivor, so that upon her death he could claim the whole, as he did.

This the defense denies, claiming that the mother remained in full possession of her faculties, bright and of independent mind, interested in and fully capable of understanding and determining upon her business affairs as before, and that what she did or had done in relation to the same was but natural under the circumstances, of her own volition and according to her wishes. The parents and both sons, who apparently always lived in friendly relations with each other and had first knowledge of these matters, were all dead when this, proceeding was begun, and the abundant testimony of neighbors and relatives as to surrounding circumstances, the relation between Phila and Franklin and what was said or done by them, was introduced by the respective sides for its bearing upon the issue as to undue influence.

Franklin had a home and family of his own and did not go to live on the old farm with his parents after Edwin’s death, but that he frequently visited them, looked after their welfare and helped them in caring for their farm and domestic affairs after that time is clearly shown. They were in frequent and friendly communication back and forth between their homes and the old folks went to live with him during one winter; but returned to their old home where they remained until his mother died, after which he built a house on his place close by his own home for his father, who lived there the rest of his life, surviving his wifp Phila two years and eight months and his son Franklin a year and five months.

In January, 1910, some two years before her death, Phila Sadler became ill, and experienced a partial paralysis on one side. Her sickness continued until April, but in the spring she was out again and in May went with her son Franklin to an old neighbor named Burnham, who had at. times done business with and for her, with whom she had left certain bank certificates of deposit. These she asked for, indorsed and turned over to Franklin. Burnham testified that this occurred at his house some time before she and her husband spent the winter with Frank; that he then noticed her right arm and hand were affected and it bothered her a little to write, that when he handed them to her she “made the remark that she was going to turn them over to Frank” and “handed them to Frank after she had indorsed them,” that there were three or four of those certificates the amount of which witness did not remember, but the largest was $1,400 and the smallest “in the neighborhood of $150.”

Franklin’s widow testified that he brought the certificates of deposit to her in a cloth bag with some other papers and she put it in a box where they kept their deeds and other valuables, and from time to time he would take them to the bank and get new ones; that he also had some life insurance come due and put part of that in the bank, and after his death she found amongst his papers a certificate for $2,400. This is the most important item in relation to which claim is made. No certificate for that amount is shown to have been in existence when Franklin and his mother went to Burnham for her papers. One for that amount was first issued as deposited in their joint names on August 30, 1910. It was apparently renewed as it fell due, payable to the order of either or the survivor until after her death when it, or a certificate for that amount, was issued, December 29, 1912, payable to Franklin’s order.

There is also evidence that Franklin had charge of other money matters of his mother’s, how much and to what extent being more or less uncertain. The history of their banking matters for several years back was traced by the testimony of the bank officials and records, showing numerous deposits, interest credited, canceled certificates, etc., from which it was contended and is fairly shown that during the life of his mother Franklin renewed these certificates as they fell due or took new ones to their equivalent, or more, made payable to himself or his mother or the survivor of them. Two certificates in their joint names, payable to either or the survivor were issued in April, 1910, apparently before she obtained those Burnham held. It is also indicated that Phila Sadler could and did transact business independent of Franklin after her sickness and subsequent to the time she indorsed and turned these certificates over to him. It was shown that in the banking line she and one Emma Brown made at least three deposits, the certificates for which were issued payable to the order of either of them, or the survivor. One dated September 26, 1911, for $450, payable to the order of either, was indorsed by Emma Brown and paid November 23, 1911.

In their verdict the jury found upon the items submitted that Franklin’s estate was holden for the Abbott nóte and $98 cash claimed, but that the three certificates of deposit, for $2,400, $400 and $80, belonged to Franklin and no part of them was a just claim against his estate.

While the testimony introduced and the questions arising during the trial wander through a wider field of collateral inquiry, as is but natural and common in cases of this nature, the claimed errors brought before this court for review are directed and limited to refusal of the court to give various requests of plaintiff relating to the burden of proof where undue influence is at issue and the charge given upon that subject, as relating to the three certificates of deposit found by the jury to belong to Franklin, which it is claimed, and for this inquiry,' may be conceded, represented the money and indorsed certificates of deposit turned over to him by his mother. There is no evidence that he ever asked or demanded or made direct effort to induce her to do this. The claim of undue influence is directed to inferences from surrounding circumstances and the relations of the parties. Burnham’s recollections as to the certificates he delivered to her was that Franklin figured them at that time as amounting to $2,006. The first shown of a $2,400 certificate was the one dated August 30,1910,- and made payable to either Phila or Franklin Sadler or the survivor, as were the others, after renewal. As they fell due the amounts were deposited in the name of Phila M. Sadler and Franklin Sadler, and certificates again issued payable to the order of either of them or the survivor. Of the significance of a deposit so made it was said by this court, in construing section 3 of Act No. 248, Pub. Acts 1909 (2 Comp. Laws 1915, § 8040):

“We are of opinion that in enacting the legislation in question it was the legislative intent not only to protect banks in the payment of deposits made in the manner indicated by "the statute, but in the’ first instance, and in the absence of competent evidence to the contrary, to actually fix the ownership of the fund in the persons named as joint tenants, with the attendant right of survivorship therein.” In re Rehfeld’s Estate, 198 Mich. 249.

That these deposits were so made with Phila Sadler’s knowledge and approval is evidenced by her identified signature indorsed with that of Franklin’s on the canceled certificates up to the time of her death, and upon other canceled certificates of deposit for other amounts payable in like manner, not traced as connected with the three in controversy. As applied to these certificates the question of gift inter vivos debated in the briefs of counsel is unimportant, neither is it necessary to follow counsel’s review of the testimony upon defendant’s contention that there was no competent evidence to carry the case to the jury on the issue of undue influence, for the jury found in defendant’s favor so far as these certificates are concerned.

The charge of the court was somewhat lengthy, explaining fully the nature of the case with appropriate instructions as to the respective claims of the parties and principles of law involved when undue influence is claimed, which was submitted to the jury as an issue of fact. Plaintiff’s chief ground of complaint is that the court did not adequately charge that the burden of proof shifted to defendant when such fiduciary relations as existed in this case were shown, as asked in carefully prepared requests which were presented and refused. The court was tendered 24 requests by plaintiff, some 14 of which with more or less elaboration and variation are directed to the question of undue influence and shifting in burden of proof. The court apparently endeavored to cover the substance of the material .portions of these requests in the charge with less stress and repetition. It would be of no profit to quote at length from or review in detail plaintiff’s many requests, or all portions of the charge to which the assignments of error are directed, but the following excerpts from the charge indicate that the burden of proof where fiduciary relations appear, omission of which is most seriously complained of, was not overlooked:

“The question that you are concerned with in this case, and which you must decide, is the question of whether this was a gift by the mother to her son, and whether any undue influence or advantage was taken of the mother, Phila M. Sadler, by her son Franklin Sadler, in obtaining these certificates of deposit in their joint names, and afterwards getting the money on the same. * * *
“When I used the word ‘fiduciary relation’ I mean such a relation as exists between parent and child, where the child has thé management of the parent’s business and the parent looks to the son for advice and counsel, and the law calls that relation fiduciary, and the law is jealous and insists that there shall be no advantage taken because of that relation, and therefore looks with suspicion if that relation is used for the benefit of the one who has charge of the business and gives counsel and advice.
“I charge you as a matter of law that if you find that Franklin Sadler, having charge of his mother’s business, unduly influenced her to part with all this property to the detriment of the other heirs who had claims upon her bounty, to the party who held this fiduciary relation, and by the exercise of undue influence he obtains all this property for himself and the others obtain nothing, then I charge that is undue influence.
“In considering these claims of the various parties you have a right to take into consideration the law relative to transactions of this kind. Where a fiduciary relation existed between parties to the transaction, as between parent and child, the party who held this place of superiority and influence by virtue of the relation has the burden of proving the compliance of the transaction with the rules of equity and fair dealing, and to show that there was no undue influence.”

The last quoted instruction was given to the jury three times. Twice on return of the jury for further instruction when the court asked if “some member of jury wants some part of the charge read,” and the foreman replied, “With regards to undue influence on the whole case.” When the jury was before the court for. further instruction certain of its members propounded- several questions, as to which there was some discussion in which counsel for plaintiff participated at times, offering suggestions to both the court and jury, qnd stating in answer to inquiry by jurors his recollection of certain parts of the evidence, on one occasion saying to a juror who asked as to the significance of certain facts counsel had stated, “The judge made that plain to you in reading the instructions.” It is said in defendant’s brief that this occurred in “the absence of the attorneys on the other side,” which is not denied, and the record shows no participation by them in what took place. During this episode the following occurred, upon which plaintiff assigns error:

“A Juror: Could I put a question? I don’t know as I could state it in a supposition case, but I will have to state it in this case. There was influence — we are agreed that there was influence with regard to this forty or eighty acres. Does that signify that there was influence used all the way through the case, or just in that instance?
“The Court: You don’t have anything to do with the land proposition in your verdict. You could only consider that as bearing on the other question, and it would not of necessity mean that influence ivas used in the other case. In case you do find that influence was used in the deeding of the land, that would not of itself show that influence, was used on the other matters. You would also have to find that influence was used as to the certificates of deposit and the notes.”

The testimony as to the land transactions was introduced by plaintiff. It was a collateral matter admissible only for its bearing on the relations of the parties and inferable undue influence in connection with the certificates and notes which were in issue. The court again correctly told the jury, in substance, what the real issue was, and that in the verdict which they might render the land proposition was not the issue for them to decide, but they did have a right to consider the testimony in relation to it for its bearing upon the main issue, which was whether the certificates and notes were obtained by undue influence. In the connection given we discover no prejudicial error in this answer by the court to the juror’s question. '

Following further questions and answers between the court and jury, certain of the jurors, or a juror, more than once asked the court to read them his charge again and counsel for plaintiff said to the court at this point:

“I don’t think it is clear with regard to the" burden of proof as to undue influence'. I think you ought to say something about that, on that point, where the burden of proof rests, whose duty it is to show undue influence.”

To which the court replied:

“I think that instruction clearly specifies that: ‘Where a fiduciary relation existed between the parties to the transaction, as between parent and child, the party who held this place of superiority and influence by virtue of the relation has the burden of proving the compliance of the transaction with the rules of equity and fair dealing, and to show that there was no undue influence.’ ”

The court then read to the jury much of the charge as previously given, including the portion last quoted. The record indicates that this case was thoroughly tried by counsel and submitted by the court to the jury under a carefully prepared charge, with full and impartial instructions as to the nature of the issue, the principles of law involved and the duty of the jury in weighing the testimony and deciding the facts within their province.

No reversible error is found and the action of the trial court will stand affirmed. The case is therefore remanded for such further appropriate proceedings as may be desired, in harmony with this opinion,

Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    FLEMING v. DALTON.
    1. Banks and Banking — Joint Deposits — Ownership — Gifts Inter Vivos.
    In an action by a father against a daughter for the amount of a deposit in a bank placed there by plaintiff’s wife in the joint names of herself and defendant, and withdrawn by the latter after her mother’s death, the burden of proof is upon plaintiff to establish his ownership of the money, which he claimed to have entrusted to his wife to handle for him.
    2. Married Women — Building and Loan Stock — Ownership of Fund Accumulated — Statutes.
    Section 10001, 2 Comp. Laws 1915, providing that married women may become subscribers to the capital stock of building and loan corporations, and hold, control, and transfer their stock in all respects as femmes sole, and that their stock shall not be subject to the control of or liable for the debts of their husbands, construed, and held, to protect married women in the ownership of the fund derived from and accumulated through the ownership of such stock.
    3. Husband and Wife — Marital Duties — Adult Children.
    There is no legal obligation upon a wife imposed upon her by her marital duties to her husband in caring for, managing, and doing the housework of their home, to assume the extra burden of taking their adult children as boarders.
    4. Banks and Banking — Joint Deposits — Ownership—Evidence.
    Evidence examined, and held, insufficient to sustain the finding of the jury that plaintiff was the owner of the fund.
    Error to Jackson; Parkinson, J.
    Submitted October 15, 1917.
    (Docket No. 118.)
    Decided June 3, 1918.
    Rehearing denied July 18, 1918.
    Assumpsit by James Fleming against Mary E. Dalton for money had and received. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Thomas M. Poynton and James J. Noon, for appellant.

      Reece, Blackman & McGraw, for appellee.
   Steere, J.

Mary Fleming died at Jackson, Michigan, on March 16, 1916, survived by her husband, James Fleming, plaintiff herein, their daughter Mary E. Dalton, defendant herein, and three sons named James, Peter, and John Fleming. Her age is not stated but she was an elderly woman, her husband James being 70 years old at the time of the trial, her daughter Mary 42, their son James 47, and John, who testified that he was the youngest of the family, told of events happening in 1902 at which time he had married and left the parental home. About 8 years prior to her death Mary Fleming caused a savings account for deposits by her in the Jackson City Bank to be made payable to herself and defendant. Pass-book No. 402 of the savings department of said bank, which she delivered to defendant before her death, shows the account is with “Mary Fleming or Mary Fleming-Dalton,” that it was opened in 1896 by a deposit of $1 and ran through succeeding years in varying amounts until at the time of her death the credit balance was $697.35, which was thereafter withdrawn from the bank by defendant who claimed it was given to her by her mother. Claiming this money was his, and had been entrusted to deceased as his wife to handle for him in that capacity, plaintiff brought this action to recover the same from defendant. The trial resulted in a verdict and judgment for him of $731.33, being the full amount of such deposit with interest from the time it was withdrawn.

Defendant’s 50 assignments of error, many of which do not impress us as demanding serious consideration/ are directed to claimed erroneous admissions of testimony, refusal to charge as requested, the charge as given, prejudicial argument of counsel, that deceased’s estate is not made a party defendant and refusal of the court to grant defendant’s motion for a directed verdict in her favor.

This was a savings deposit put by deceased in the joint names of herself and daughter with declaration of donation at the time followed by delivery before her death of the bank pass-book for the same. No question is, or we think can be, raised as to a gift to defendant by deceased, provided it was hers to give. Plaintiffs only claim is that it belonged to him. Upon that proposition the burden of proof rested upon him under the undisputed facts.

Plaintiff and his family came from Glasgow, Scotland, 39 years previous to the. time of the trial, first to Ohio where he worked in the mines a couple of years and then moved to Jackson where they thereafter remained. Plaintiff is not shown to have had any trade or special calling, and what line of employment he followed is not disclosed except by his statement that he worked in the mines in Ohio and was at the time of the trial working for the city in the water department, repairing water service pipes and mains. His son James testified that he was a steady, hard working man without education and had “no business facilities at all.” It is shown that he turned his wages over to his wife, whether in whole or in part is a matter in dispute, that she managed all their business and household affairs, making ^repurchases and paying the bills for the family. The record is silent as to the amount of plaintiff’s average earnings, what wages he ever received or what amount he regularly or at any time turned over to his wife. She is, however, shown to have been a thrifty, economical and saving woman, who at times had savings accounts in banks and in 1898 took some stock in the Standard Savings & Loan Association of Detroit, on which she paid $5.25 per month until July 26, 1907. From this she realized $560.84. It was not shown that she had any funds or income other than she received from her husband and children; but it was shown that the children all lived at home some time after they respectively became of age and while there paid their mother for their board, some giving her other money at times. James, who was married when 27 years of age, nearly 20 years before his mother died, testified that he lived at home up to the time he was married and “everybody had to pay their board that stayed at home.” Defendant remained at home until she was 82 years old, working in a corset factory as a machine operator earning seven and eight dollars a week and “contributed money to mother in addition to paying my board,” as she testified. John remained at home and paid board after he was of age. He testified that in 1902 after he was married and living elsewhere he gave his mother money to pay the building and loan association. Peter, who never married and lived at home until his mother died, was said to have “always contributed and paid his board.” That plaintiff was not always at home earning wages and turning them over to his wife is made plain. James, Jr., tells of his father going away to Saginaw in 1902, where work was very slack, as in Jackson at that time, and that he stayed for a time “waiting for it to break up,” which he thought there was reason for “because there was not much work there and he might have had some little rumpus with mother.” Defendant and John also tell of his being absent. Defendant testified that between 1898 and 1905 he was away from home most of the time; that he left her mother in 1892 and was' gone about eight months and did not contribute to her support during the period of 1902; that he left home in September, 1904, and did not return until March, that he once left and boarded with one of the neighbors for two or three weeks and then got a room down town. These matters only serve to emphasize the uncertainty in which the evidence leaves the extent of his contributions to his wife, out of which it must be found all the savings account in question came in order to sustain this verdict. To the extent money was given her by the children it is as fairly inferable she put into this saving, as that it was entirely made up of money received from plaintiff.

It also appears that shortly before deceased placed this savings account in the name of herself and defendant she had received from the Standard Savings & Loan Association of Detroit between five and six hundred dollars in payment for the transfer or surrender of seven shares of its stock which she had held in said company and paid dues on for about seven years. From whatever source she may have obtained money to pay her dues, she had been a subscriber and held such stock as her own during that time. By section 7580, 2 Comp. Laws (2 Comp. Laws 1915, § 10001), it is provided, so far as material here, that:

“Married women may become subscribers to the capital stock of such corporation, and hold, control, and transfer their stock in all respects as femmes sole, and their stock shall not be subject to the control of or liable for the debts of their husbands.”

Directly applying to the relation of husband and wife, this provision necessarily means something more than the right of the wife to invest her own independently acquired funds or savings in building and loan stock, for she already had that right to* the full under the so-called -married woman’s act (3 Comp. Laws 1915, § 11485). It would scarcely be within the fair intent of this provision, or the spirit of our modern legislation emancipating the wife from oppressive common law rules respecting her marital relations, to construe the law as only protecting the wife as a femme sole in her ownership while for herself and in her own name saving and accumulating a fund in this manner, but leave her husband and his creditors free to take it away from her after it has been thus accumulated and paid over to her by the association.

Deceased’s marital duties to. her husband, in caring for, managing and doing the housework of their home, imposed upon her no legal obligation to assume the extra burden of taking their adult children as boarders, even though a natural and.' congenial arrangement to all of them. This she did, receiving from them the pay for their board with his knowledge and consent, to which he never made claim during her lifetime.

During the last five years of her life, irrespective of any donation or permission by her husbaiid, she was absolutely entitled to. all earnings acquired as the result of her personal efforts in services performed for others than her husband. Act No. 196, Pub. Acts 1911 (3 Comp. Laws 1915, § 11478).

The record is destitute of any testimony showing plaintiff’s earnings at any time, their family expenses or what amount he ever gave his wife, or what if any directions he ever gave her as to the disposition of what she received from him, or any claim made by him for any of it during her life.

It is shown that when she died, and when she put this savings account in the name of herself and defendant, deceased had property of her own, some money at least which legally and separately from her husband belonged to her. There is no evidence showing how much of it or how much of that received directly from plaintiff went to make up the deposit in dispute. The burden of proof rested upon him to show this by competent testimony, and trace directly or circumstantially the money he claimed to have entrusted to his wife as his agent through her hands into that deposit to its full amount in order to sustain his verdict for that amount with interest.

In that respect this case is analogous in many particulars to McNamara v. Langguth, 198 Mich. 776, where it is said of deceased wife’s bank account claimed by her husband:

“Assuming, then, what the evidence in the record tends to establish, that some portion of the bank account is represented by deposits made out of the funds sent to Margaret by her husband, the plaintiff, and assuming, further (which we do not hold, see Wipfler v. Pattern Works, 140 Mich. 677 [104 N. W. 545, 112 Am. St. Rep. 430]), that as to such portion, Margaret should be considered as the agent of the plaintiff instead of as the absolute donee of the fund, How may the court determine what proportion of said bank account properly belongs to the estate of Margaret McNamara, and what proportion thereof to the plaintiff? It is obvious that upon this point no conclusion can be reached based upon the testimony in the record, and the court would be obliged to resort to mere conjecture.”

For the foregoing reasons the judgment is reversed, with costs to defendant, and a new trial granted.

Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.