author: Ostrander, C. J. Kuhn, J.

text:
    WINE v. NEWCOMB, ENDICOTT & CO.
    1. Negligence — Personal Injuries — Evidence — Question eor Jury.
    In an action for personal injuries caused by a fall, testimony by plaintiff that while she was shopping with her daughter in defendant’s store, and while passing down an aisle plaintiff fell and was injured, and testimony by the daughter that she noticed her foot was in contact with a rope or cord on the floor, that she turned to warn her mother just as the latter fell, and that a loop or coil of the rope was about the foot or ankle of the mother, raised a question for the jury as to what brought about plaintiff’s fall. Kuhn, Brooke, and Fellows, JJ., dissenting.
    2. Same — Trial—Instructions.
    It was error for the trial court to neglect to submit to the jury the question as to whether plaintiff tripped on the rope or cord, as controlling of the question of defendant’s negligence, as requested by plaintiff’s counsel. Kuhn, Brooke, and Fellows, JJ., dissenting.
    3. Same — Contributory Negligence — Trial—Instructions.
    In the absence of testimony that plaintiff was acting any differently from ordinary people in going about the store, an instruction by the trial court that “one who enters a busy store must keep his wits about him; he must pay attention to his surroundings, and he cannot go hither and thither absent-minded, thinking of some particular subject and shutting his eyes to everything else; * * * such inattention is a want of that ordinary care which the safety of society requires of sane persons of mature age to exercise,” was erroneous.
    4. Same — Contributory Negligence — Safe Place.
    As a general proposition, a customer in a store has the right to rely upon the safety of passage along passageways used by customers.
    5. Same — Obstructions.
    A customer in a store is not bound to anticipate that there would be any obstruction on the floor, such as a coil of rope or cord.
    See notes in 21 L. R. A. (N. S.) 456; L. R. A. 1915F, 572.

      6. Same — Evidence—Identity of Defendant.
    Where the record showed that a corporation named as defendant was organized to carry on the-business of selling dry goods at retail in Detroit, testimony that plaintiff was shopping in the store of this corporation when she was injured, UelcL, sufficient to show that the store in which plaintiff was injured was owned and operated by defendant.
    7. Evidence — Judicial Notice.
    The court will not take judicial notice of the fact that many large stores apparently owned and operated by one company have departments operated and controlled by entirely separate corporations.
    8. Same — Master and Servant — -Inferences—Negligence.
    Testimony that an apparent .employee of defendant was engaged in taking down some decorations in defendant’s store, and had in his hand one end of the rope or cord over which plaintiff, a customer, tripped and was injured, was sufficient to warrant the inference that said person . was an employee of defendant.
    Error to Wayne; Des Voignes, J., presiding.
    Submitted June 12, 1918.
    (Docket Nos. 4, 5.)
    Decided December 27, 1918.
    Case by Meyer Wine against Newcomb, Endicott & Company for personal injuries to plaintiff’s wife. Case by Leah Wine against Newcomb, ^Endicott & Company for personal injuries. The causes were heard as one. Judgment for defendant. Plaintiffs bring error.
    Reversed.

      Selling & Brand, for appellants.

      Keena, Lightner, Oxtoby & Hanley, for appellee.
   Ostrander, C. J.

Testimony for plaintiff (none was offered by defendant except that of a medical man, called, for convenience, out of order) tended to prove that on January 4, 1915, while Leah Wine and her daughter were shopping in defendant’s store and were passing along an aisle, or space, set with tables displaying goods, the mother, Leah, fell to the floor, sustaining severe physical injury. The mother, a witness in her own behalf, does not state what caused her to fall, and nothing in her testimony tends to prove negligence of defendant. The daughter accompanying her testified, in substance and effect, that just before her mother fell she noticed that her own foot was in contact with a rope or cord on the floor and that she had turned to call her mother’s attention to it just as she fell. She saw, she said, a man, apparently an employee, removing holiday decorations, who was handling a rope or cord, some of which was upon the floor and coiled, or in loops, one end or length of which he held and one loop or coil of which was about the foot or ankle of her mother after she had fallen. It slipped off when she was assisted from the floor. The person who was handling the rope or cord and another helped Leah, took her to the next room, and one of them sent for a physician.

When plaintiff’s case was concluded, defendant moved for a directed ver,diet in its favor and, the motion being denied, rested. The case was submitted to a jury, and a verdict for defendant was returned. A motion for a new trial was refused.

Meyer Wine is husband of Leah Wine. He also began a suit against the defendant for damages for the injury resulting to him on account of the facts stated and the sums disbursed by him in curing his wife. The causes were heard together, submitted to the same jury, with the same result.

For Leah Wine it is assigned as error (1) that the court refused a new trial, (2) that the court submitted to the jury whether plaintiff was guilty of contributory negligence, (8) that certain of plaintiff’s requests to charge were refused, (4) that the court wrongly instructed the jury, (5) that counsel for defendant made improper argument to the jury which, when challenged, was allowed to go unrebuked.

In denying the motion for a new trial, after discussing and overruling the various grounds assigned therefor, the court said:

“I am constrained to say that in any event there is no necessity for reviewing these several assignments of error, because I am now convinced that under the evidence produced in this case the court at the conclusion of plaintiff’s case should have granted defendant’s motion for a directed verdict.”

The reasons for this conclusion are not stated beyond this, that in the same opinion it is recited that

“defendant moved for a directed verdict on the ground that under the evidence plaintiff had shown no act amounting to actionable negligence on the part of defendant.”

And it is further stated in the opinion:

“On the argument to the jury defendant’s counsel, contended that from the cross-examination of Mrs. Wine it developed that it was just as probable to conclude that she tripped by stepping on the skirt of her dress as upon the coil of cord or rope. Mrs. Wine admitted that she wore on the day of the accident a long dress skirt, and the jury could see the one she was then wearing; also that she was uncertain on her feet, very stout and heavy in physique.”

The appearance of Leah Wine and the length of the dress she wore may have impressed the jury favorably to the idea that it was at least uncertain whether the rope or twine was the cause of her fall. The testimony of her daughter, the only testimony pointing to defendant’s negligence, when read with that of the mother, whatever the appearance of the mother, raised a question of fact for the jury as to what brought about her fall. The daughter did not see her mother fall. The mother, as has been stated, does not account for the fall. The cord or rope is the only cause for the fall asserted by the plaintiffs. If this question was properly submitted, plaintiffs must be contented with the verdict.

The assignments of error are in each case the same. Upon the subject of defendant’s alleged negligence the court advised the jury:

“The question is, Was this injury caused or produced, and does she suffer by reason of the negligence on the part of the defendant here, and should the defendant, by reason of such negligence, be required to respond in damages?
“In considering this question, gentlemen, as to negligence, a customer entering the store of a retail merchant by invitation has a right to believe that there are no concealed sources of danger and is not required to be on the look-out for the unusual thing. Is it a usual or unusual circumstance for a mercantile concern whose store is open for business, to have in its aisle a rope or cord? Was it in this instance so placed that a customer might reasonably be expected to stumble? Had Mrs. Wine no reason to suspect that such a condition ought to have existed, or is she chargeable with negligence in not anticipating such a circumstance?
“Where a mercantile establishment, by its advertising or otherwise, as I have stated, invites people to go upon its premises to inspect goods, does it assume to all who accept the invitation, the duty to warn them of any danger in coming, which is known to the employees of the mercantile establishment, or ought to be known of by them. Note the language of that, gentlemen, when you come to analyze the question of liability here; that is, was the danger known to the employees of the mercantile establishment, should they have known it, or was it by reason of the circumstances of the case unknown to him?
“Mrs. Wine was not charged with the duty of anticipating that there would be lying across the aisle of the defendant’s floor any such obstruction as the one over which she tripped, or claimed to have tripped. Now, gentlemen, in analyzing this proposition as to whether or not there was negligence on the part of the defendant, you should inquire of the testimony and determine among other things, was this cord found wrapped about the leg or foot of- Mrs. Wine when she fell? Inquire from the testimony and determine whether, from the facts as they are adduced here, whether the fall was occasioned by the cord so wrapped about her foot. Inquire of the evidence and determine what, if anything, is shown as to whether one end of the cord was in the hands of the defendant’s employee at the time. If it was, whether anything at that time done by the employee of the defendant had a tendency to increase the danger or hazard. In fact, gentlemen, analyze all this testimony.
“It is the claim of the plaintiff in this case that this cord was of a material that permitted a loop as it lay on the floor, to stand up, and that by reason of that, in walking along she put her foot in that cord, and that there was quite a quantity of the rope or cord upon the floor, and that by reason of this entanglement it threw her down. Upon the other hand, gentlemen, the defendant contends that the dress of Leah Wine being rather long, that it is just as well to find that she was in the' act of leaning over in examining' the goods upon the table, that her dress being perhaps to some extent upon "the floor, she stepped upon it, tripped, and that occasioned the fall. In other words, gentlemen, analyze the evidence in the case and determine, if you can, whether or not this cord occasioned the fall. You will have to be satisfied by a preponderance of the evidence that her fall was occasioned by this cord. You- cannot find the defendant in this case liable unless you determine the proximate cause of her falling was due to the fact of this entanglement of her foot in this rope or wire, cord.
“If you find the defendant was not negligent you need consider this case no further but return to this court with a verdict of no cause of action.
“If, upon the other hand, you find that the defendant was negligent, then you will pass to the next proposition : Was the plaintiff guilty of contributory negligence?”

If any rule for determining defendant’s negligence was given, it .must be found in the foregoing. I feel compelled to say that no rule is stated. It is patent that the fact that plaintiff. tripped on the rope or cord, while it was a necessary fact to be found, was not made controlling or conclusive of defendant’s negligence. While plaintiff’s requests to charge upon this subject are somewhat discursive, they ask for a rule, and in substance for a proper rule, for determining defendant’s negligence.

Upon the subject of the duty of the plaintiff the jury was told:

“One who enters a busy store must keep his wits about him and pay attention. He must pay attention to his surroundings, and' he cannot go hither and thither absent-minded and thinking of some particular subject, and, shutting his eyes to everything else. Such inattention is sometimes dangerous to the person himself, and quite as often to his neighbors. Such inattention is a want of that ordinary care which the safety of society requires of sane persons of mature age to exercise, and for which they are civilly responsible.”

This was, in any event, an erroneous statement of the law as applied to the facts of this case. It does not appear that plaintiff was acting differently from ordinary people who visit establishments like that of defendant to examine merchandise — to shop. As a general proposition, a customer in such a place has the right to rely upon the safety of passage along passageways used by customers. Brown v. Stevens, 136 Mich. 311; Bloomer v. Snellenburg, 221 Pa. 25 (21 L. R. A. [N. S.] 464, 69 Atl. 1124). The court was requested to so instruct the jury. But there was no evidence of any negligence of plaintiff contributing to her injury. She did not see the rope, or cord, on the floor, and, as the court said to the jury, she was not bound to anticipate that there would be any such obstruction.

There are other assignments of error, not considered in view of the fact that the points raised are not likely to arise upon a new trial.

The appellee says that in any event the judgment was right and should not be reversed because (1) plaintiff did not introduce competent evidence that the store in which plaintiff was injured was owned and operated by defendant, (2) there was no proof that the young man who was taking down the decorations and had some of the cord in his.hand was an employee or in any way subject to the control or supervision of defendant, (3) there was no proof as to the person who put, or allowed to be put, the cord in the aisle, whether it was the young man referred to, some customer in the store, or any other person, (4) there was no evidence that the cord had been in the aisle at all before the moment the daughter of plaintiff saw it, which was almost the instant of the accident, and, therefore, there is no evidence of notice to the defendant, (5) there was no proof as to what caused the cord to fall, whether through negligence of any one or by accident, (6) there was no competent evidence that the cord was what caused the plaintiff to fall. Excepting, perhaps, the last point stated, it does not appear that any of these questions was presented to or considered by the trial court. And none of them can upon this record be resolved in favor of defendant as a matter of law.

The defendant is charged as a corporation, and the plea is the general issue. The testimony is to the effect that plaintiff was injured in the place of business of the defendant. It is said this is not enough in view of the well known custom of which the court will take judicial notice that many large stores apparently owned and operated by one company have departments operated and controlled by entirely separate corporations, and plaintiff is bound to prove that the particular department in which she was injured was owned and controlled by defendant. The court knows of no such custom as is referred to and doubts if there is in fact such a custom. The record shows there, is a corporation named as defendant is named, organized to carry on the business of selling dry goods at retail in Detroit. The testimony is that plaintiff was in the store of this corporation when she was injured.

Some inferences may be drawn from the fact that one is employed in a place of business, apparently doing the work of an employee. And the case differs from Toland v. Paine Furniture Co., 175 Mass. 476 (56 N. E. 608), where a customer fell over a mat on the floor, the mat being curled up, and from De Velin v. Swanson (R. I.), 72 Atl. 388, where a customer slipped on a banana peel on the floor. In the case at bar, there is evidence of the active agency of an apparent employee of defendant in making the passageway unsafe.

The other points are answered by what has already been said.

The judgment is reversed and a new trial granted, with costs to appellants as of a single appeal.

Bird, Moore, Steere, and Stone, JJ., concurred with Ostrander, C. J.

Kuhn, J.

(dissenting). Accepting the proof offered in support of plaintiffs’ case in the light most favorable to their contention, I am convinced that there was no evidence of any negligence on the part of the defendant to warrant the submission of the case to the jury. The testimony discloses that the young man had a piece of cord in his hand and was apparently taking down some Christmas decorations, and that he inadvertently dropped it in the aisle. There is no proof that it was in the aisle before the moment that it was discovered by Mrs. Blaustein, the daughter of the plaintiff who saw it when she felt it, according to her claim, against her foot, and that immediately thereafter, upon'turning, she saw her mother fall to the floor. The evidence, therefore, as to the length of time that the cord was on the floor would clearly indicate that it was only a second or two from the time \yhen the cord was first seen by any one to the time of the accident. There is no evidence that the defendant knew, or in the exercise of reasonable care ought to have known of the presence of the cord in the aisle, or that there was any negligence .on its part in failing to remove it. Accepting the plaintiffs’ theory of the case, in my opinion what occurred was simply an unavoidable accident, for which the defendant should not be held responsible. I am of the opinion that the learned judge might properly have directed a verdict for the defendant, as he intimates he- should have in his denial of the motion for a new trial, and that there was no error in allowing the verdict of the jury to stand in finding that the plaintiff had no cause for action. I therefore cannot concur with the opinion of the Chief Justice.

The judgment should be affirmed.

Brooke and Fellows, JJ., concurred with Kuhn, J.


source: Caselaw Access Project

author: Ostrander, C. J.

license: Public Domain

text:
    DALTON v. WEBER.
    1. Usury — Mortgages—Taxes, Payment by Mortgagor — Redemption.
    A mortgage executed by plaintiff and his wife bearing interest at 6 per cent., and providing in addition thereto that the mortgagors should pay all taxes and assessments levied upon the lands or upon or on account of the mortgage or the indebtedness secured thereby; and it appearing that the mortgagee paid taxes upon its personal estate at the rate of over 2 per cent., held, usurious. Union • Trust Oo. v. Radford, 176 Mich. -50.
    2. Same — Bonus.
    A mortgage calling for $10,000, while the amount actually paid to and received by the mortgagors was only $7,165.19, held, usurious.
    3. Same — Attorney in Fact — Principal and Agent — Inferences.
    Where the loan was made by defendant’s attorney in fact, and it is undisputed that the bonus claimed by plaintiffs was exacted, the court will not infer that the exaction was for the sole benefit of the agent, in the absence of evidence that the.principal did not benefit by it.
    4. Same — Equity—Interest—Forfeitures.
    On a bill by the mortgagors to redeem from foreclosure by advertisement of a usurious mortgage, equity will require them to pay the legal rate of interest, since to remit the interest would amount to forfeiture; the proceeding not being one by the usurious lender seeking to enforce. usury.
    5. Parties — Mortgages—Foreclosure—Redemption—Jurisdiction —Appeal and Error.
    Where one of the defendants was a nominal holder only of a tax lease on the mortgaged premises for the benefit of the mortgagees, he was a proper party to a bill to redeem from the mortgage lien; but where he was not served with process, has had no opportunity to answer, and has not been heard, the court acquired no jurisdiction to adjudicate his rights, and the decree against him will be reversed although he did not in proper time claim an appeal.
    Appeal from Wayne; Bridgman, J., presiding.
    Submitted June 4, 1918.
    (Docket No. 14.)
    Decided December 27, 1918.
    Bill by Robert M. Dalton and another against Joseph-F. Weber, Sarah A. Warner, Franklin E. Bushman and others to redeem from certain mortgage foreclosures. Defendant Warner filed a cross-bill asking affirmative relief. From the decree rendered, all parties appeal. Modified as to plaintiffs and defendants Weber.
    Affirmed as to defendant Warner. Reversed as to defendant Bushman.

      Harrison Geer, for plaintiffs.

      Wilkinson, Routier & Hinkley, for defendants Weber and Bushman.

      Stellwagen & MacKay, for defendant Warner.
   Ostrander, C. J.

Plaintiffs, who are husband and wife, and who reside in Detroit, executed a mortgage upon real estate in the city of Detroit to the Detroit Fire & Marine Insurance Company to secure the payment of a note for $18,000, made by Robert M. Dalton to said mortgagee, with interest at the rate of six per cent, per annum. On the same day, which was January 21, 1911, they executed a second mortgage upon the same real estate to J. Cotter Weber, of Chicago, Illinois, as mortgagee, to secure the payment of a note, made by both of the plaintiffs, for $10,000 and interest at the rate of six per cent., payable quarterly. Each mortgage contains the covenant that the mortgagor, within 40 days after the same become due and payable, will pay all taxes and assessments levied upon the lands or upon or on account of the mortgage or the indebtedness secured thereby, whether levied against the mortgagor or otherwise. Interest was paid upon these mortgages until and to October 1, 1913. October 23, 1912, $1,500 was paid on the principal of the first mortgage. November 14, 1918, the Detroit Fire & Marine Insurance Company assigned the first mortgage and note to J. Cotter Weber. The mortgagors having defaulted, both mortgages were foreclosed by advertisement. JJpon the second mortgage, the property was bid in in the name of J. Cotter Weber, and the sheriff’s deed, dated February 19, 1914, reciting that the property was sold on that day for the full amount of the mortgage, with interest, namely, $10,-547, and that the deed would become absolute February 19, 1915. Upon the foreclosure of the first mortgage, the property was bid in in the name of J. Cotter Weber, and the sheriff’s deed, dated July 28, 1914, recited that the bid was the full amount of the mortgage, $17,550.60, and that the same would become absolute July 28, 1915. Plaintiffs on March 23, 1915, filed their amended bill of complaint, in which Joseph F. Weber, Frank J. Weber, and Florence K. Weber, his wife, Thomas M. Weber, J. Cotter Weber and Sarah A. Warner are made defendants, the latter upon the charge that she is a subsequent incumbrancer of the premises, holding a mortgage thereon in the form of a deed executed to her by the plaintiffs as security for a loan. The relief prayed for is that the sheriff’s sales and deeds in the said statutory foreclosure proceedings may be set aside and the premises redeemed from said liens; that an accounting may be had to ascertain the amount due upon the mortgages, and in that connection—

“your orators hereby offer to do equity and to pay, within such time as may be fixed by the court, the amount of principal and lawful interest which shall be determined by this court, on such accounting, to be due as aforesaid.”

It is charged in the bill of complaint that the property in question i$ worth $60,000 and more, plaintiffs deriving rents therefrom amounting to more than $5,-000 a year; that in 1910 it was sold upon a chancery foreclosure of a mortgage, made to and held by the Detroit- Fire & Marine Insurance Company, and that, no redemption having been made from that sale, the plaintiffs later secured a conveyance to themselves from the Detroit Fire & Marine Insurance Company of the premises for $24,676.19, which amount was paid by executing to said Detroit Fire & Marine Insurance Company the mortgage first hereinbefore described for $18,000 and $6,678.19 by the check of J. Cotter Weber. (The discrepancy of two dollars be-' tween the amount due to the insurance company and the amount paid it is understood to be the cost of recording the mortgage.) It is further charged that the amount of this check, plus a sum claimed to have been paid for taxes, was the actual consideration for the note and mortgage for $10,000 hereinbefore described. It is further charged that the said second mortgage and note were executed to J. Cotter Weber, of Chicago, to avoid the payment of taxes on the mortgage under the statutes of Michigan and that if the said J. Cotter Weber has any actual existence he never had any actual interest in either of said mortgages or notes, and that Joseph F. Weber and Frank J. Weber, the only persons with whom plaintiffs had any dealings, are the principals in the transaction. Finally, plaintiffs charge that Robert M. Dalton was in financial distress at the time that the said mortgages were given and was compelled to and did accede to the demands of the said Joseph F. and Frank J. Weber, who had knowledge of his condition, and' in and by the said second note and mortgage agreed to pay them about $3,000 as a bonus for their aid in enabling him to secure a reconveyance of this property from the Detroit Fire & Marine Insurance Company.

J. Cotter Weber made a separate answer to the bill, in which he avers that he, through Frank J. Weber, his attorney in fact, lent Robert M. Dalton $10,000, and, in substance and effect, that he knows nothing of any exaction such as is complained of in the bill, expressly denying the charge in the bill that no ad-t vancements other than the said check and a small sum for taxes were paid by him to said plaintiff.

Joseph F. and Frank J. Weber filed’a joint answer to the bill, denying all charges of wrongdoing. Sarah A. Warner answered the bill and claimed affirmative relief, charging that her deed from the plaintiffs of the property in question was. executed to secure the payment of certain moneys for which Robert M. Dalton was indebted to. her. She asks that her lien be decreed to be a first lien upon the premises and that the mortgages hereinbefore described be declared to be usurious and of no force or effect against her, and if the court refuses that relief that the defendants Weber be ordered to account for all sums of money received by them usuriously, and she offers to do equity and to pay the amount of principal and lawful interest that shall be determined to be due upon said mortgages. The Webers answered the cross-bill of Sarah A. Warner, and so did the plaintiffs, the latter denying that Robert M. Dalton is indebted to Sarah A. Warner in any such sum as she claims in her cross-bill.

The cause, being at issue, came on for hearing in open court. Testimony was introduced, none of the Webers being called as witnesses. The learned trial judge was of opinion that the $18,000 mortgage, the first one hereinbefore referred to, was not affected, originally or in the hands of Weber, with any infirmity on account of usury; that the second mortgage included a bonus of $3,000, which made the mortgage usurious. A computation was made according to which he found the principal of the second mortgage to be $6,-678.19, the amount of the taxes paid $486.96, total $7,-165.15, finding the sum due upon both mortgages to be $26,668.25.

At the hearing the plaintiffs called as a witness Franklin E. Bushman, from whom certain testimony was elicited to the effect that he was in the real estate business in Detroit and in the business of loaning money; that one day in the office of Mr. Wilkinson, attorney for the defendants Weber, who was also his, Bushman’s, attorney, he was recommended by Mr. Wilkinson to purchase a tax title which he understood was held by Mr. Faust, living in Cleveland, Ohio, and he instructed Mr. Wilkinson to go ahead and buy it for him; that Mr. Wilkinson furnished the money, which he charged to his, Bushman’s, account, they having dealings together. The witness testified that •he knew Joseph F. and Frank J. Weber and had had more or less business with them; that he understood that Mr. Wilkinson was acting as attorney for the Webers. There appears in the record no cross-examination of this witness. However, there was filed in the cause December 29, 1917 (the cause caane on to be heard on the 21st of May, 1917), an order reciting that counsel for both parties having heard the testimony of Franklin E. Bushman,

“and it appearing to the court now herein that Franklin E. Bushman is a necessary party to said cause,”

—that under the authority of the provision of the judicature act (3 Comp. Laws 1915, § 12364) reading:

“No action at law or in equity shall be defeated by the nonjoinder or misjoinder of parties. New parties may be added and parties misjoined may be dropped, by order of the court, at any stage of the cause, as the ends of justice may require,”

—the court had power to add parties, and it was ordered that Franklin E. Bushman be made a party defendant, and that the order be entered nunc pro tunc as of May 21, 1917. Under the oral permission of the court, on May 21, 1917, the bill of complaint was amended by adding certain allegations thereto and among them certain charges which are in effect that a certain tax certificate (city tax lease) affecting the property in question here, assigned to said Bushman by John Faust of Cleveland, is held by said Bushman for the defendants Weber, the real purchasers and owners thereof, and in addition to the other relief prayed for in the bill is the prayer that the defendants be required to come to a just accounting with plaintiffs as to said alleged tax title,

“to the end that the same may be dealt with and extinguished by the final decree of this court in said cause.”

The decree, which purports to have been made on the 15th of September, 1917, contains the findings that on the 15th of September, 1917, there was due on the two mortgages $26,496.66, and that J. Cotter Weber is entitled to five per cent, interest on that amount from and after the date of signing the decree; that Sarah A. Warner has a claim against the property of $16,-167.36, subject to the said two mortgages.

“The court doth further find that J. Cotter Weber is purely nominal in the subject-matter of this litigation, and that the parties to be considered are Joseph F. Weber and Frank J. Weber, with whom all negotiations were carried on and completed.”

It was further found that the Bushman tax lease was procured in the interest of Joseph F. and Frank J. Weber and should be canceled upon the payment of $650, with six per cent, interest from April 14, 1915. It is ordered that Bushman cancel his tax lease’ accordingly; that upon the payment of the sum found to be due thereon as stated, with interest, the sheriff’s deeds referred to be canceled and removed as a cloud on the title of plaintiffs, and the time is fixed within which payment is to be made, and the rights of the defendant Sarah A. Warner as subsequent incumbrancer are declared.

The printed record does not disclose when the decree of the court was entered. It does appear from the printed record that the plaintiffs, the defendants Weber, the defendant Sarah A. Warner, and the defendant Franklin E. Bushman all claimed the benefit of an appeal to the Supreme Court therefrom. When these various claims were filed does not appear. The return, on file in the office of the clerk of this court, indicates that plaintiffs filed their claim of appeal October 13, 1917, the defendants Weber filed theirs October 17th, that the decree was entered September 26, 1917, and that defendant Bushman filed his claim of appeal December 10, 1917.

The plaintiffs, appellants, claim that the first or $18,000 mortgage was usurious as between plaintiffs and defendants (1) because it must be viewed as part of a single transaction, namely, the purchase of the property from the Detroit Fire & Marine Insurance Company, in which the defendants Weber participated, the alleged usurious exaction of $3,000 being a part of the whole transaction, (2) because the said mortgage in fact exacted more than seven per cent, interest, it having appeared that the Detroit Fire & Marine Insurance Company paid taxes on its personal estate at a rate of over two per cent.; that the second mortgage was usurious because given for $10,000, when as matter of fact $7,000, more or less, was the amount of money actually advanced by the Webers to the plaintiffs, and, both mortgages being usurious, no interest should have been allowed on either to the date of the decree.

We are of opinion that the evidence requires the conclusion that both mortgages are usurious, the first one upon the authority of Union Trust Co. v. Radford, 176 Mich. 50, the second one because it calls for a sum largely in excess of the amount actually paid to and received by the mortgagors. The contention of the defendants Weber that J. Cotter Weber, the mortgagee in the second mortgage, is.not shown to have had knowledge of the bonus paid to his attorney in fact, through whom, it is claimed, the loan was made and to whom, it is also claimed, he furnished the sum of $10,000, cannot be sustained. Assuming that where a mortgagee furnishes to his agent who makes the loan the full amount called for by the mortgage, the mortgage is not rendered usurious because the agent, by consent of the mortgagor, retains for himself a commission for procuring the loan (see, Secor v. Patterson, 114 Mich. 37; Condit v. Baldwin, 21 N. Y. 219; Wyllis v. Ault, 46 Iowa, 46), we are not satisfied that the principle can be applied here. Plaintiffs have assumed, but have not proved, that J. Cotter Weber is a fictitious, at least a mere nominal, party to the transactions above recited. That he is not a fictitious person seems to be proven by the power of attorney executed and acknowledged by him which is recorded in Wayne county, Michigan, and by the checks made by him by Frank J. Weber, his attorney in fact. He appears to be the mortgagee, the purchaser at the foreclosure sales, the person who furnished the money. The checks given were all drawn on the German-American Bank of Detroit, and there is one for $3,000, payable to the order of Robert M. Dalton, indorsed by Robert M. Dalton and by Frank J. Weber. Admittedly, this check represents a part of the sum of money making up the $10,000 secured by the second mortgage. The testimony of Robert M. Dalton, which is undisputed, is to the effect that this sum represents the bonus exacted by Frank J. Weber, the attorney in fact of J. Cotter Weber. If J. Cotter Weber is a nominal party, then, of course, the exaction made the note and mortgage usurious. If he' is the real party in interest, the testimony, we think, should have gone farther and defendants Weber should have made it appear that Frank J. Weber exacted the $3,000 for his own benefit, and not for the benefit of his principal. In form, whatever business was done appears to have been done for J. Cotter Weber by his attorney in fact. We are not required to infer, and indeed there is little room for the inference, that this money was an exaction or commission which benefited the agent only, unless the apparent agent was, in fact, the principal.

Plaintiffs should be permitted to rédeem their property upon equitable terms. They have offered to pay the sums, principal and interest, which the court shall determine to be due. They contend that no interest should be paid, but only the amount of the money actually paid to and received by them. In making this contention, they are asking a court of equity to enforce a penalty, a forfeiture. It is clear, however, that the usurious lender is not in this case, nor in any other judicial proceeding, seeking to enforce usury. Upon the authority of Vandervelde v. Wilson, 176 Mich. 185, plaintiffs, having had the use of a certain sum of money for a certain period of time, ought to pay the legal rate of interest therefor for the time. This conclusion requires a modification of the decree in plaintiffs’ favor.

But as to defendant Bushman the decree must be reversed. Assuming that he is nominal holder only of the tax lease, for the benefit of J. Cotter Weber, and is therefore a proper party to a bill filed to redeem the property from the liens of Weber, Mr. Bushman was not served with the process of the court, has had no opportunity to answer the bill of complaint, and has not been heard, as a party, in a proceeding to adjudicate his right.

We find no occasion for disturbing the decree as to defendant Sarah A. Warner.

A decree will be entered in this court permitting plaintiffs to, redeem upon payment, within 60 days after the decree is entered, of all sums of money advanced or paid out by defendant Weber on account of the said notes and mortgages,, taxes, and for other purposes, with interest thereon at five per cent, per annum, less any and all sums of money paid by plaintiffs, whether-as interest or as principal. As to defendant Warner, the decree of the court-below will be affirmed. As to defendant Bushman, the decree is reversed, but without costs, the record remanded and leave given to the plaintiffs to properly bring him before the court below to answer the bill and for such further proceedings as are agreeable to equity and in accordance with proper practice. We have not overlooked the fact that Mr. Bushman did not in proper time claim an appeal. The decree against him is not reversed as upon his appeal, but is reversed because it affirmatively appears that the court below acquired no jurisdiction to adjudicate his rights and that as to him the decree is a nullity. The bill, however, is so framed (upon amendment) as to question his interest. If jurisdiction of his person is acquired, there appears no good reason for refusing, in this suit, to adjudicate the right which, as assignee of the tax lease, he asserts.

Plaintiffs will recover costs of this appeal as against the defendants J. Cotter Weber and Frank J. Weber.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


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    LEONARD-HILLGER LAND CO. v. WAYNE COUNTY BOARD OF AUDITORS.
    1. Plats — Approval—Municipal Corporations — Powers op County Board — Statutes.
    The board of auditors of Wayne county, in the approval or rejection of plats of land submitted to it, is limited in its powers and duties by section 3350, 1 Comp. Laws 1915.
    2. Same — Mandamus.
    Mandamus will issue to compel the board of auditors of .Wayne county to approve a plat of land located in two townships of said county, which had been accepted by the township boards and which conformed to all statute requirements, where the reason given by the board for its refusal, viz., that it did not conform to adjoining plats, was not based upon evidence; there being in fact, at the time said plat was first presented, no adjoining plats.
    Certiorari to Wayne; Codd, J.
    Submitted June 11, 1918.
    (Calendar No. 28,026.)
    Decided December 27, 1918.
    Mandamus by the Leonard-Hillger Land Company to compel the board of auditors of Wayne county to approve a plat. From an order denying the writ, plaintiff brings certiorari.
    Reversed, and writ granted.

      William Van Dyke, for plaintiff.

      Paul W. Voorhies, Assistant Prosecuting Attorney, for defendant.
   Ostrander, C. J.

A plat of land lying in the township of Gratiot and Grosse Pointe township, in Wayne county, called Leonard-Hillger Land Company’s subdivision of lots 16, 17, and 18 of plat of Private Claim 300, recorded in liber 221 of deeds, was approved by the authorities of both of said townships and was offered for approval to the Wayne county board of auditprs. Approval, was refused. Relator, owner of the land, applied to the Wayne county circuit court for a mandamus to compel approval of the plat, an order to show cause was granted, an answer filed, and upon a hearing the writ was refused. Relator sued out of this court a writ of certiorari by which the record of the proceeding in the mandamus case is brought here for review. The learned trial judge delivered a short opinion, perusal of which will tend to make clear the legal proposition upon which relator rests the right to the writ of mandamus. He said:

'“I don’t believe that the legislature in the act intended that the duties of the board of county auditors should be purely clerical in nature as is practically claimed by relator in this case. Surely some one must be vested with some general supervision of the platting of property in any county. It seems to me that when the legislature selected three officials for a county they intended to invest them with certain discretionary powers and certain duties to see to it that the property within their jurisdiction was platted for the greatest good to the greatest number. If the contention of counsel were correct that where there are no adjoining plats, the plat must be accepted by the board, then it would become a case of first come first served.
“The plat in question was rejected under date of April 25, 1917, in writing, for the reason that ‘the streets and alleys in such plat do not in our opinion conform to the general plan of the streets and alleys in the district of which said plat is a part.’ There is ample testimony adduced to show that the platting of property as proposed by relators would work great hardships to adjoining property upon the west, and that also it did not conform to the general plan as stated in the notice in writing given by the board. There is also, of course, evidence introduced that the platting of the property in any other way might work a hardship to relator. At the same time it can be assumed that all of these matters were thoroughly investigated by the board, and unless their finding was such as to amount to an abuse of discretion which I believe to be vested in them in this respect, the court should not interfere.”

The powers and duties of the respondent board are set out in section 3350 of the Compiled Laws of 1915 as follows:

“* * * It shall be the duty of said board whenever any map or plat is submitted to them to carefully examine the same for the purpose of determining whether or not the caption of said map or plat conflicts in any way with the title or caption of any other map or plat previously recorded in the office of the register of deeds of said county, and also for the purpose of ascertaining whether or not the streets and alleys in such map or plat conform, in their opinion, to the streets and alleys of any adjoining map or plat heretofore recorded; and are so named that no name previously in use in the same city or village shall be made use of except in continuing a street or alley: Provided, That nothing herein contained shall require the dedication of any other or further streets than those shown on the plat; and for the purpose of determining whether or not the land included within the limits of said map or plat is suitable for platting purposes; and if, upon examination of said map or plat a majority of said board shall find that the title or caption does not conflict with that of any other map or plat, not vacated, recorded in such county, and the streets and alleys do conform to those of any adjoining map or plat theretofore recorded; and are so named that no name previously in use in the same city or village shall be made use of except in continuing" a street or alley; and further, that the land included in said map or plat is sifitable for platting purposes, and that said map or plat conforms to the requirements of this act, the said board shall endorse its approval thereon by the signatures of’ a majority of said board, but shall otherwise reject the same.” * * *

It is possible that the board of auditors of Wayne county should be given larger powers in the premises than they now possess in order that plats of the land adjacent to the city of Detroit may be adapted to a general plan insuring against ugly and inconvenient cutting up of private property into public plats. It is clear, however, as is discovered, by reading the statute, that the power of the hoard of auditors in the premises is a very limited power.

In the case now presented it appears there is no general township plan in either of the townships in which relator’s land is situated, at least no plan in either which has been followed. It appears there are private subdivisions and public plats in the neighbor-, hood, but when relator’s plat was presented for approval there was no other which was in the immediate neighborhood, none adjoining it, none to which it could conform if such conformation could be required. Relator’s plat conforms with all statute requirements. This is admitted. It is true that before the respondent board passed finally upon the plat another plat of adjoining land — land adjoining part of relator’s land ■ — had been presented, and the board, in consequence, seems to have attempted to secure some modification of relator’s plat. But relator’s was the first plat offered for approval. The reason given for refusing to approve it must be accepted as the real reason. That reason does not appear to be based upon evidence.

The principles which must control construction and application of this statute have been stated and applied in Campau v. Board of Public Works, 86 Mich. 372; Van Husan v. Heames, 91 Mich. 519; Klug v. Auditor General, 194 Mich. 41; Campau v. Board of Auditors, 198 Mich. 468.

Under the circumstances, we are compelled to disagree with the learned trial judge, to set aside his judgment, and order that the writ of mandamus issue as prayed. No costs.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


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    OLSON MANFG. CO. v. REX MOTOR CO.
    1. Corporations — Creditors’ Suit — Mortgages—Validity.
    On appeal by judgment creditors of a motor corporation from a decree sustaining the validity of mortgages covering the real and personal property of said corporation, evidence held,, sufficient to sustain the decree of the court below.
    2. Same — Stockholders—Part Payment eor Stock — Liability eor Debts.
    Where the incorporators of a motor corporation subscribed for a certain amount of its capital stock, part of which .was issued and paid for, and later more stock was issued to one of them who divided it among the others, the consideration for which is not clearly explained, said stockholders are liable to the creditors of the corporation for the unpaid balance of stock subscribed for; there being no evidence of any agreement to pay for said stock by services or otherwise.
    3. Same — Several Obligation.
    The obligation of a subscriber to pay for stock is a several obligation, which may not be diminished because some other delinquent subscriber cannot respond or cannot be brought within the jurisdiction of the court.
    Cross-appeals from Wayne; Lamb, J, presiding.
    Submitted June 6, 1918.
    (Docket No. 57.)
    Decided December 27, 1918.
    Judgment creditors’ bill by the Olson Manufacture ing Company and another against the Rex Motor Company, Charles H. Riopelle, and others. From the decree rendered, plaintiffs and defendant Riopelle appeal.
    Modified, and affirmed.

      Frederick E. McCain (Stevenson, Carpenter, Butzel & Backus, and William S. McDowell, of counsel), for plaintiff Olson Manufacturing Co.

      Ignatius J. Salliotte (James O. Murfin, of counsel), for defendants Riopelle.
   Ostrander, C. J.

This is a proceeding instituted by judgment creditors of the Rex Motor Company, who have made said company and Charles H. Riopelle, Eliza J. Riopelle, his wife, William J. Frasier, Alfred Robinson, and Frank Lemerise defendants. The company was incorporated in December, 1918, with an authorized capital of $75,000, with 7,500 shares. The declared purpose of the corporation was to manufacture, buy, sell, and deal with automobiles, automobile motors, transmissions, etc., and to carry on a general manufacturing and mercantile business at Ford, Wayne county, Michigan. Some, perhaps all, of the original incorporators had become interested in an attempt to develop and apply what appears to have been a novel idea in motor cars — a front wheel drive — and before the incorporation of the Rex Motor Company had spent some time, perhaps a little money, in this behalf. They capitalized their optimism, some labor, a little property and credit. At the hearing, one of them testified that—

“The blue prints of the front wheel drive and the blue prints of the motor are all that is left of the assets of the company for the general creditors now.”

The same witness testified further:

“There was considerable experimental work done on this motor prior to the incorporation of the company by Mr. Blumstrom, Mr. Frasier and Mr. Lemerise. Before the organization we got together and planned for a factory site, and started to get material for building. We started the latter part of October, 1913, and prior to the time of incorporation I worked with the carpenters getting the material and getting the stuff on the ground. Mr. Lemerise,- • Mr. Frasier, Mr. Robinson and Mr. Blumstrom also did the same work. They had drafted designs for the engine and the motor prior to the time of the incorporation and the five of us continued in this experimental work after the incorporation.”

Of the capital stock, one-half, or $37,500, was subscribed by Riopelle, Frasier, Lemerise, Robinson, and Charles Ii. Blumstrom, in equal amounts. None of them paid in any cash, but Frasier, Robinson, Blumstrom, and Lemerise contributed certain personal property valued at $8,090, and Charles H. Riopelle contributed a parcel of real estate valued at $4,500. The personal property was later on mortgaged to Frasier, who assigned to another, not a party here; the mortgage was foreclosed and the property sold. The real estate was mortgaged to Mrs. Riopelle for $6,500, and her mortgage has been foreclosed.

It is a contention of the plaintiff creditors that as to them and other creditors these mortgages were void, and that the court should so declare and treat the property, real and personal, as assets of the company for their benefit. This contention the court determined adversely to them, and upon a review of the testimony, which will not be set out here, we decline to disturb the judgment of the trial court. It may, however, be said, in this connection, that the person who has apparent title to the personal property is not brought upon the record, that it is clear that Mrs. Riopelle advanced the money represented by her mortgage, that the corporation had the benefit of it, and that she is not shown to have participated in any purpose, if her husband and other shareholders had the purpose, to cover up assets of the company in fraud of creditors.'

It is a further contention of plaintiff that some of these defendants should pay for the stock they subscribed for for the benefit of creditors of the company, and the court, being of this opinion, found that there is due from Charles H. Riopelle upon his original subscription $3,000. As he had purchased the stock and interest of Alfred Robinson, the further sum of $5,480 was found to be due from him on that account, and, as he had also purchased the stock of Frank Lemerise, the sum of $5,470 was found to be due from him on that account — the total of these being $13,950. It was found that William J. Frasier is indebted to the company upon his stock subscription $5,480. The court also found there is due to certain judgment creditors of the Rex Motor Company — to Olson Manufacturing Company, $5,223.21, to Swope-McCracken Company, $68.18, to Advance Pattern Works, $309.25, to Knott & Jarlus Company, $158.01, exclusive of interest and costs in each case. As to defendants Robinson, Lemerise, and Mrs. Riopelle, the bill is dismissed. Defendants Charles H. Riopelle and William J. Frasier are ordered to pay plaintiffs’ claims “in proportion to the amount of their indebtedness to the Rex Motor Company as herein set forth,” together with the costs of suit. Eliza J. Riopelle is given costs in the sum of $20. The bill was taken as confessed by defendant Frasier. Defendant Charles H. Riopelle and plaintiff Olson Manufacturing Company appeal from the decree.

Riopelle’s contention, briefly stated, is, that on the admitted facts liability for unpaid subscriptions to the capital stock cannot attach.

The court accepted the recitals in the articles of association as to what was in the first instance contributed by the associates, giving appellant credit for $4,500 for his real estate and Frasier, Robinson, Blumstrom and Lemerise credit each for one-fourth of the value of the personal property contributed. This personal property consisted of—

“Mahogany patterns for the manufacture of motor and transmission covering the entire construction of motor and transmission, all being located at 268 Junction avenue, Detroit, $2,250; one 14% h. p. sample and model motor and transmission now in operation and located at 268 Junction avenue, $2,350; drawings, tracings and blue prints covering all designs relating to the construction of motor and transmission, same being located at 268 Junction avenue, $2,800.00; tools and jigs located at 268 Junction avenue, $690; total valuation of which said property is taken, $8,090.00.”

The incorporators never paid in anything more. What they did of record, is evidenced by the following:

“A special directors’ meeting, village of Ford, Michigan, August 31, 1914. Special directors’ meeting called by the president for the purpose of allotting stock to the five incorporators in the sum of $20,000 for their services in completing the Rex Front Wheel Drive. Moved by Frank Lemerise, that the 20,000 stock be issued to Charles H. Blumstrom and in re-, turn have same assigned over to William F. Frasier, $4,000; Charles H. Riopelle, $12,000 worth; $4,000, Alfred Robinson to C. H. Riopelle; $4,000, Frank Lemerise to Harry Riopelle; balance, $4,000, to Charles H. Riopelle’s shares in said front wheel and friction motor drive automobile known as Rex Friction Front Wheel Drive. Supported by Charles H. Blumstrom, Lemerise, Frasier, and Riopelle, carried unanimously.”

Concerning this, Mr. Riopelle testified:

“My own share according to that was $4,000. I think it was paid for in services, time and money expended since the date of incorporation. . We credited up this stock $20,000 and reported it as additional value of patents and so forth.. I had turned in real estate to the value of $4,500, which left $3,000 according to the books. I got $4,000 in value here in stock. I did not charge up to the company the $1,000 difference because I thought the stock was good. It was all right at that time in August, 1914. That was the same month we put a mortgage on the property to pay a note and our other little indebtedness. ' This company had never received any cash other than about $4,000 from these small stockholders. That was all the cash that the company had. What Lemerise, Blumstrom and Robinson collected; it didn’t go through my hands. We never had six machines running at a time. We never had but one. On August 31, 1914, we owed the bank $5,000 on a note and other indebtedness of about $1,500. We had .about 82c in the bank at the time.”

He also testified, referring to the $20,000 stock allotment :

“Q. What was the object of that?
“A. That was for our work and time and one thing and another and money expended in organizing the concern and extra pay. That was the understanding when we first organized. I don’t know why we issued it all to him at first. He promised us he would return us $4,000 each. I couldn’t tell you exactly what his promises had to do with it. That was the understanding at that time and before. The applications for the patents and everything were in his name.' He signed them over to the company at that time and we issued all the stock to him in payment therefor. He did not make us a present of that stock. That was our proportion of the money advanced, our time and expenses. I advanced my expenses on the road right along. You will not find any expense account of mine in that book.
“The money that Blumstrom used to go to Chicago was company money. That was for the Exhibit 4, or $500.
“I paid my own fare, paid my own bills, and they paid their expenses on the road every day; car fare, traveling around, and expenses on the road, trying to sell stock. That was expenses trying to sell this stock. My expenses are not credited on my personal account. The $20,000 stock is just recompense for our time and expense. I spent more money beyond what is on the books. It cost me $5 or $6 a day on the road every, day. I went all around, machine shops here and there, stopped in this place and that place, in D.etroit, Ecorse, and different places. I went to Monroe and Mt. Clemens and around testing these automobiles. We had employees at our place who sometimes did testing. My son did the testing on one car. I ran one car. We wanted to advertise the car so as to get the caí on the market in Wayne county. We didn’t want to go out of Wayne county until we got started. Altogether we had 4 or 5 cars. Blumstrom, Robinson and Frasier were the originators of this car. Blumstrom and Robinson were the inventors. We issued the $20,-000 worth of stock to Blumstrom for the patents, designs, on this car, labor, etc. We all got a division of that $20,000 from Blumstrom by pre-agreement.”

And:

“Q. * * * ‘Moved by Frank Lemerise that $20,-000 stock be equalized between the five stockholders. Carried.’ What did you mean by that?
“A. By equalize I mean divided by five. I did not need $4,000 to equalize my subscription. I wanted all the stock I could get. With the exception of the $590 stock that was issued out of the treasury, there has been but $37,500 worth of stock issued all together. We never entered upon that subscription account other subscription- which we had to the company for stock. 1 think we had some corporation by-laws. I couldn’t tell you where they are. The directors had authority by the by-laws, to place a chattel mortgage on the machinery and a mortgage on the property. We had by-laws, but I don’t know where they are. In the case of Rundy we enforced the subscription to the stock of the company in court in behalf of the company. It is not on Exhibit B, the subscription account. On the subscription account are entered just the five original subscriptions, and we used Rundy’s subscription and all the rest to balance these figures. If we had put all these subscriptions on the subscription account, there would have been a balance due there of some $24,000. The money paid that was received from the other stockholders and the $20,000 which we voted to ourselves balanced that account.
“Q. Now, there, all the money which was expended by you and Lemerise and from Frasier and from Blumstrom in going to Chicago and in experimenting with this car, and all the different things trying to develop this car, they drew back again, didn’t they, at different times from the company?
“A. They drew back after we organized, they drew back what money they paid out.
“Q. And after you organized, they put in bills and drew it back from time to time?
“A. Sure; yes, sir.
“Q. Then for this $20,000 you furnished the company simply your services in soliciting and showing off this car to various people around in Wayne county, and your knowledge, whatever it happened to be, in regard to motors ?
“A. Yes, me and the rest of the boys.”

What stock was this, thus voted by the directors to themselves? The minutes do not purport to authorize a credit to these gentlemen upon their stock subscriptions. It is a vote of stock, to be issued and divided.

About this, defendant Robinson testified:

“Q. What do you know about this $20,000 dividend divided between the other gentlemen in August?
“A. I think it was something about $20,000 to be divided up for charges that we had to make.
“Q. Was that new stock in the company?
“A. I think so.
“Q. Was that new stock over and above $7,500?
“A. Yes, Blumstrom gave us that.
“I couldn’t tell you whether it was to be new stock over and above the original incorporation or to be used in payment of old stock. I never understood it. I don’t know when this was first spoken of. I do not now claim any portion of that $20,000. I sold all my rights that I had connected with this concern to M>. Riopelle. I understood this $20,000 was to be for changes.”

And defendant Lemerise testified:

“I agreed to take 750 shares, but we didn’t intend to sell any more than we had to. We put in all the money that we had, then we finally ran out and had to sell stock in order to keep going. I put in lots of money, but I did not keep an account of the amounts that I put into this company. I drew out some money. I didn’t keep account of my expenses in behalf of the company. I didn’t get half of what I ought to have got for the work I did and the money that I put in. I did not keep track of the amount of money I put in. I presented to the company expense bills for the trip to the automobile show and a couple of tires, $198.92. We didn’t get anything for our work. We didn’t draw any salary out of it. There wasn’t any salary authorized to me. I don’t think there was to Mr. Riopelle. I don’t know anything about the books. I sold my stock to Mr. Riopelle for $1,000, 750 shares. I don’t know whether I had any other stock or not. Later on we' voted ourselves $20,000. I guess it was in addition to $7,500. I think that was $20,000 we raised when we put up the new car. That was included in the $7,500 I subscribed. We did not get any additional certificates. I don’t know why this $20,000 was voted to Mr. Blumstrom entirely. It was too long ago. It is my signature to Exhibit A-17. At the bottom of that certificate. That was voted for the automobile front wheel drive. I can’t recall why it was issued to Mr. Blumstrom first. I couldn’t tell you why that particular transaction took place in that way. I did not get certificates for my portion of that $20,000. That was to complete the front wheel drive. Mr. Blumstrom set the figure at $20,000. I don’t remember whether I was present at all these meetings. That was paid by our services in completing this front wheel drive.’’

Defendant Frasier, to whom the chattel mortgage was given, testified:

“The $20,000 was not in addition to the $7,500 which we subscribed. The $20,000 was to pay that subscription. I was present at the meeting, the minutes of which are shown on Exhibit A-17, where this stock is voted. It was voted to Blumstrom because we had our deal with Blumstrom, he was given $20,000 for his invention, his labor, his services rendered, his management and so on. He was the general manager and inventor of the machine and ran the factory. I bought that stock of Blumstrom after-wards. It was a bargain between us and him for so much and to take it in'stock. I paid him $1 and other considerations and we paid a good many other dollars too. I bought that stock of Blumstrom and the others did the same.
“Q. And some of it,' a big-portion of it went to Mr. Riopelle, didn’t it?
“A. What Mr. Riopelle bought and Lemerise bought and Robinson’s direct from them.
“Q. When was this bargain made?
“A. When we first opened up there started the company, that was the bargain made between Blumstrom and the bunch, when we got the thing going good started in once, to get $20,000 for his inventions and the stuff that he had in looking after the thing. He was to draw no salary until the thing was complete, tie just got $25, $50 and so on to live on. He got money from me and from Lemerise and from all of us. He still owes us for that money. On August the 3d we got going and voted this stock to him. He made demand because he had the thing perfected, and he transferred everything to the company. At the time of the incorporation the Rex Motor front drive was in the experimental stage; it was developed in a way and in an experimental way, and then we showed the first car in Chicago. Then when we came back they had to change this and they have been changing ever since. You can call it an automobile, call it complete as far as it is, and where it is, but for a perfect thing it never has been.
“Q. When you subscribed for 750 shares of stock you expected to pay for it? You understood that was a debt to the company?
“A. That was the understanding between Blumstrom and us at our first agreement, our first arrangements.
“I put in money at the time of the incorporation. Mine was all cash. It was money put into the company as they went along before the incorporation. That was the same as cash put in at the incorporation.
“Q. How. did the voting to Blumstrom of $20,000 pay your debt on this subscription?
“A. Why, we canceled — it was voted to me then canceled off from my account to the company.
“Q. $4,000?
“A. Yes.
“Q. We are talking about the time of incorporation in December, 1913, there was $8,090 worth of property put in.
“A. Yes. ’ .
“Q. Of which you got a quarter, that was $2,020, wasn’t it?
A. Y©s sir
“Q. That left $5,480 still due?
“A. Yes.
“Q. How did the voting to Blumstrom of $20,000 pay your debt to the company on this subscription?
“A. Why we canceled — it was voted to me then canceled off from my account to the company bank?
“Q. $4,000?
“A. Yes.
“Q. Where did the balance of $1,480 come from?
“A. I don’t know.”

Here is some evidence of confusion, but no evidence of payment for the stock subscribed for by the incorporators. Some of this testimony tends to prove an arrangement or agreement to aid Mr. Blumstrom, the inventor, in perfecting a car, in creating something for which there would be a demand, a salable thing, and when it was completed, with a going corporation behind it, stock was to be issued to Blumstrom for his invention, etc. But nothing of value was completed, and it does not appear that anything of value was by Blumstrom turned over to the corporation. It does not appear that there were any patents. What appears to have been attempted was to make use of the alleged Blumstrom agreement to relieve the original subscribers to stock of their liability to pay for the same. Assuming that stock of a corporation may be issued for property and for services in good faith performed for the corporation — that it can pay a debt for services with stock as well as with money — and assuming further, what is not, however, proven, that Blumstrom had earned $20,000 of capital stock, it is not perceived how the issue of stock to him would affect the subscription of others to whom he may have transferred some of his stock. It would increase their holdings, it could not pay their debt to the company. And if the stock was not voted to Blumstrom according to the theory that he had earned it, that it paid him what the company owed him, then he had no right to it at all. There is no reasonable theory according to which a vote of stock to Blumstrom and a transfer of it by him to appellant could pay appellant’s debt to the company, even if Blumstrom was a mere figurehead, a mere conduit.

No demands of these incorporators for services were ever allowed by the corporation. There is no evidence of any arrangement, any contract, to give their services to the corporation in payment for its capital stock. After the fact, the directors sought to dispose of all equitable, as they had theretofore disposed, or did soon thereafter dispose, of all physical, assets of this corporation, relieving themselves of the obligations of their respective contracts to pay for the stock they had subscribed for. We know of no adjudicated case and of no principle of law which will sustain appellant Riopelle’s contention.

In one respect, the decree appealed from is wrong and ought to be modified. The obligation of a subscriber to pay for stock is a several obligation. See 3 Comp. Laws 1915, § 13596; 4 Thompson on Corporations (2d Ed.), § 5044; Dieterle v. Paint & Enamel Co., 143 Mich. 416. Each demand, against each subscriber, is an asset of the corporation, which may not be diminished because some other delinquent subscriber cannot respond or cannot be brought within the jurisdiction of the court. Creditors of the corporation may in this proceeding look to each of them for payment. The ninth paragraph of the decree will be amended by striking out the words “in proportion,” and as so amended the decree will be affirmed.

Defendant Eliza J. Riopelle will recover her costs of this appeal from the plaintiff, appellant. No other costs are allowed.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


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

text:
    KIMMERLE v. LOWITZ.
    1. Account Stated — Action—Multiplicity of Suits.
    Am account stated and the express or implied promise of one party to pay the amount of the balance indicated therein is none the less binding because one or more of the items, the factors, used in making up the account, are therein charged or credited upon a distinct promise and agreement of one or the other of the parties to do in the future some other or further thing with respect to such item or items.
    2. Same.
    Where in a partnership accounting between plaintiff and defendant the latter was allowed credit for certain notes which he assumed and agreed to pay, but which he paid only in part, plaintiffi paying the balance, an action there■on by plaintiff is not barred by recovery in a former action upon the account stated, although defendant had defaulted in the payment of the notes at the time suit upon the account-stated was brought against him. Fellows, J., dissenting.
    3. Same — Res Judicata.
    The validity of the account stated and the credit to defendant having been adjudicated in the former action, the question of the validity of the partnership between plaintiff and defendant, not having been then raised, is not open in this action.
    Error to Cass; Des Voignes, J.
    Submitted June 13, 1918.
    (Docket No. 34.)
    Decided December 27, 1918.
    Assumpsit by Charles H. Kimmerle against Elick Lowitz ior an unpaid item in an account stated. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Asa K. Hayden and Gore & Harvey, for appellant.

      William F. McKnight (Hatch, McAllister & Raymond, of counsel), for appellee.
   Ostrander, C. J.

More or less complicated business transactions between the plaintiff and defendant were followed, as plaintiff claims, by an accounting between them, concluding with an account stated. Plaintiff sued defendant, and in the Federal district court for the western district of Michigan recovered adjudgment, which was affirmed by the circuit court of appeals. 187 C. C. A. 415, 221 Fed. 857. The judgment has been paid. It was determined in that action, among other things, that there was a settlement, an account stated, which showed a balance due plaintiff from defendant of $7,883.08. The recovery was for this amount, less $500, which was paid after the settlement was made. It was also determined in the action brought upon the account stated that it had been agreed between plaintiff and defendant before the California corporation was organized that they would share the profits and losses of the venture.

In the account stated, an item of $4,700 was credited to defendant. This item was the amount of two notes made by the Kimmerle. Concrete Machinery Company,' a California corporation, to the Bank of Southern Cab ifornia, indorsed by plaintiff. These notes, when the settlement was made, were outstanding and unpaid, but it is the claim of plaintiff that the defendant assumed and agreed to pay them, for which reason he was given credit for them in the settlement. Defendant did not pay them, but did pay to plaintiff $2,000, which plaintiff paid on them.

The issue in the case at bar, as stated by the trial judge, is:

"This is not an action on an account stated, but for an unpaid item contained in the account stated, which plaintiff claims defendant had credit therefor in said account stated and assumed and agreed to pay the 'same, and an unpaid balance on October 12, 1911, of $2,959.68 and interest thereon since to date at the rate of 5 per cent: per annum, totaling, principal and interest, on October 13th, as claimed, of 1916, of $3,599.60.”

The jury was instructed that for plaintiff to recover he must prove by a preponderance of evidence that there was an account stated as claimed. The jury was further required to find whether there was an agreement made and entered into between the plaintiff and defendant prior to the organization of the California corporation that they would share the profits and losses of that business venture, the court, in this behalf, saying to the jury that an account stated cannot in and of itself and alone create liability; that there must be actually an account between the parties, items of debit and credit, which can be stated. The jury determined these issues in favor of plaintiff, and that defendant did assume and agree to pay the notes referred to, had not done so, and that plaintiff had been obliged to pay and had paid the balance of them as above set forth. They returned a verdict for plaintiff for $3,599.60, and upon the verdict a judgment was entered.

' Defendant regards the following facts, among others, as important: The account was stated September 29, 1910. The bank which held the notes above referred to sued plaintiff thereon February 6, 1911, and plaintiff paid the bank October 12, 1911. Plaintiff’s action upon the account stated was begun March 24, 1911 (it was begun in the State court and removed by defendant to the Federal court), and on January 21, 1913, plaintiff filed his bill of particulars, which recited only the settlement and its amount and contained an item for interest due thereon. The plea was filed in that cause February 4, 1913, and was the general issue, with claim of set-off. The cause was tried in March, 1913, the verdict being rendered March 22, 1913. So that it appears that judgment was rendered upon the account stated, it has been paid, that the contract to pay the California notes entered into the action to the exte'nt of $4,700, that plaintiff was sued on the notes in February, 1911, thereafter brought suit upon the account stated, and that all of these transactions were founded upon the alleged copartnership transaction between the parties. Upon these facts it is urged that plaintiff cannot recover, cannot split up his cause of action; having elected to sue and recover judgment upon the alleged account stated, this action is barred. It is further claimed that the alleged partnership, the basis of this and the former action, was in violation of sound public policy and therefore void. These are the principal contentions, relating to which and the theories according to which they are advanced errors are assigned upon rulings admitting testimony, upon the charge to the jury, and upon the refusal to give certain instructions preferred by defendant.

Aside from the contention that the alleged joint undertaking of the parties is void in law, the theory of defendant and the principles upon which it is developed are well stated in his brief as follows:

“An account stated supersedes the constituent items composing it. The action upon the account is predicated upon the new promise and undertaking; the account stated altering the character of the original indebtedness. When the account was had between the parties and a balance struck, the promise to pay and the agreement to accept such balance constituted a new contract between the parties. The constituent items were no longer material as evidence. The new undertaking furnished the sole right of recovery; and such cause of action cannot be split up into several parts and a separate action brought against defendant for each constituent part.
_ “Ail damages to plaintiff arising from this partnership transaction had fully matured on March 24, 1911, when plaintiff launched his first suit against the defendant upon the alleged account stated.
“The law limits the plaintiff to one action and such action must embrace all injuries proceeding from the same source. The plaintiff must elect his remedy. He may invoke equity and file his complaint there; he may sue at law for damages, but he cannot harass the defendant by piece-meal litigation.”

The answer to this contention is, we think, and it is an answer which does not draw in question any of the principles stated, that an account stated and the express or implied promise of one party to pay the amount of the balance indicated therein is none the less binding because one or more of the items, the factors, used in making up the account, are therein charged or credited upon a distinct promise and agreement of one or the other of the parties to do in the future some other or further thing with respect to such item or items. Suppose, for example, that in a settlement between two persons who have engaged in a joint venture, and upon making up an account stated, a credit is given and it is expressly stated that it is the value of specific property to be thereafter delivered by the one to whom the credit is given either to the other or to some third person. Or, suppose there are a number of debts for which both are liable, and in the account each assumes and agrees to pay certain of them. Is it in its legal aspect anything more or less than an account stated upon which suit may be brought? Is it any less an account stated when credits are given upon promises not expressly set out in the account itself? Suppose a different, but similar, case. In a settlement between joint adventurers, one turns over to the other personal property, as a horse or an automobile, and receives a credit for an agreed-upon sum therefor on the account stated. It turns out later that he had no title to the property, and meantime the balance shown by the account is paid. Has the other party no remedy? The argument for defendant, appellant, leads, finally, to this: One who has received a credit in an account stated, as in the case at bar, may defeat an action upon the account stated by refusing before suit is brought upon the account stated to keep the promise upon which the credit was given. The principle controlling determination of the precise question presented would be the same if defendant had voluntarily paid the balance shown by the account stated. The holder of the notes he assumed and agreed to pay would have no right of action against him. If plaintiff, who was obliged to pay them, had no right of action, the result would obviously be morally wrong.

We do not regard it as important to state or in any way to review the facts antecedent to the judgment in the Federal court. They are stated with some detail in the opinion, 187 C. C. A. 415, 221 Fed. 857. It was conclusively determined by that judgment that the parties had with each other an account which they settled and stated. It was determined that by agreement the profits and losses of the California corporation venture were to be shared by them. It is not perceived how the facts thus determined can be regarded as disputable by defendant in this suit.

We find no legal objection to the course pursued by the plaintiff in this case. The established facts require the conclusion that defendant in paying the balance shown by the account stated to be due, and in refusing to pay the amount of the notes for which he received a credit' in the account, has profited, at the expense' of plaintiff, and in violation of his undertaking made to plaintiff, by the sum represented by the judgment. This is a different cause of action from the one instituted upon the account stated. It rests, it is true, in part, upon the account stated and, more remotely, upon the original undertaking of the parties; it is not an action upon the account.

It is said the alleged partnership is void because against public policy, and that in the suit upon the account stated this point was not raised and not decided. We think the point is not now open to defendant. As between himself and plaintiff, defendant received a credit in an account stated, the validity of which has been adjudicated. Out of that, and defendant’s promise to pay the notes representing the credit, his refusal, and plaintiff’s payment of them, this cause of action arises. That the item of credit represented the notes of the California bank is not disputed, except as the account itself and all of it is disputed. That defendant agreed with plaintiff to pay them is determined by the verdict as well as that plaintiff paid them.

With respect to issues open to defendant upon the trial of this cause, no errors were committed. As to those raised, but settled in the suit upon the account stated, the court, it is assumed out of abundant caution, submitted them to a jury but should have determined them as matter of law.

The judgment is affirmed, with costs to appellee.

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

Fellows, J.

(dissenting). The theory upon which the plaintiff recovered in this case was that he and defendant had agreed to share the losses of the Kimmerle Concrete Machinery Company; that on September 29, 1910, the parties came to an accounting upon such agreement; that upon such accounting a considerable sum of money was found to be due the plaintiff ; that there was an account stated; that defendant was given credit in such account stated with the sum of $4,700, the amount of certain notes given by the company to the.Bank of Southern California and indorsed by plaintiff, which notes defendant then agreed to pay. Plaintiff also claimed that upon such accounting there was found to be due him the sum of $7,-888.08, which defendant also then agreed to pay. It is the plaintiff’s claim that but $2,000 was paid by defendant on these notes. Defendant refused to pay the $7,883.08 to the plaintiff, paid no further sum on the notes, and on February 6, 1911, plaintiff was sued by the Bank of Southern California for the amount due on them. If the plaintiff’s claim is taken as true the defendant made two promises, one to pay plaintiff $7,883.08 and the other to pay the Bank of Southern California the amount of the notes; these two payments to extinguish defendant’s liability growing out of the California venture, and to settle and pay the account stated. Both promises were bottomed on the same transaction, had the same consideration, were made at the same time, were the result of the same accounting, both entered into the same account stated, and both constituted a part of the one contract of settlement of the differences between the parties. The breach of both promises had occurred when plaintiff brought his first suit. Had defendant promised to pay the amount found due the plaintiff upon such accounting in three equal monthly installments, and had breached his agreement in regard to all three of the installments, it could not be successfully urged that plaintiff had the right to split up his cause of action into three separate and different suits. He could in one action recover for all three of the installments and would be required so to do. Kruce v. Lakeside Biscuit Co., 198 Mich. 786. I think the instant case is ruled by that case, and that a verdict should have been directed for the defendant.


author: Bird, J.

text:
    PEOPLE v. ONESTO.
    1. Criminal Law — Murder—Evidence — Sufficiency — Question for Jury.
    In a prosecution for murder, evidence reviewed, and held, sufficient to furnish a foundation for the inference of guilt which the people sought to draw from it, and that the court helow was not in error in submitting to the jury the question of defendants’ guilt.
    2. Same — Joint Defendants — Conspiracy—Trial — Instructions —Equally Guilty.
    Where defendants were jointly charged with murder, it being the theory of the people that they conspired together in Chicago to kill deceased and that they came to Benton Harbor and worked it out in accordance with a preconcerted plan, and there was no room in the testimony for the jury to' find that one defendant, /although he did not actually do the killing, was guilty of any other or different offense than the other, the court was not in error in instructing the jury that he was equally guilty or should he acquitted.
    3. Same — Manslaughter—Instructions.
    Where the court, in his principal charge, defined at some length murder in the first and second degrees, also manslaughter, and later, in reply to the request of a juror, defined manslaughter again, there is no merit in the complaint that he did not draw a distinction between second degree murder and manslaughter in reply to the request of the juror.
    4. Same — Exhibits in Jury Room — Discretion of Court — Appeal and Error.
    Where the particular circumstances attending the refusal of the court below to allow an exhibit to be taken to the jury room do not appear in the record, it cannot be said by this court that there was an abuse of discretion.
    Error to Berrien; Bridgman, J.
    Submitted June 14, 1918.
    (Docket No. 102.)
    Decided December 27, 1918.

      Tony Onesto and Frank Damico were convicted of murder in the second degree.
    Affirmed.

      Frank Be Bartolo and O’Hara & O’Hara, for appellants.

      Alex. J. Groesbeek, Attorney General, and John J. Sterling, Prosecuting Attorney, for the people.
   Bird, J.

Respondents were jointly charged in the Berrien circuit court with having murdered one Henry Pontorno in that county on August 1, 1916. They were found guilty of murder in the second degree and sentenced on March 5, 1917. The proceedings have been brought to this court for review with the claim that errors were committed on the trial which should reverse the judgment of conviction.

and The first and second errors assigned are based upon the refusal of the court to direct a verdict for defendants, or either of them, at the close of the people’s case. It is the claim of counsel that the testimony did not warrant the conviction of either respondents, especially of Damico.

The proofs upon which conviction was had. show substantially the following facts: Respondents are Italians and relatives, Onesto being the uncle of Damico. They have resided in the city of Chicago for several years. They left Chicago on the morning of July 31, 1916, in pursuance of an arrangement, which they had previously made in a saloon, to go to Benton Harbor. They arrived there at about five o’clock in the afternoon. They made inquiry of a real estate man in Benton Harbor where Pontorno lived. Upon being advised they engaged a taxi and drove nearly to Pontorno’s home in the country when they alighted and discharged the chauffeur, saying to him they would walk the rest of the way. They soon changed their plans and returned to Benton Harbor because of the suggestion of Onesto that they might not be well received by Pontorno' at that hour of the day. From Benton Harbor they went to Coloma, a distance of six or seven miles from Pontorno’s home, where they registered at a hotel under assumed names and spent the night. In the‘morning they arose and went directly to Pontorno’s home. Upon arrival they did not find him there. They were well received by Pontorno’s wife and by Pontorno when he returned. The three visited, looked about the farm and afterwards had dinner together. About 3:30 o’clock in the afternoon Pontorno hitched his team to a light wagon to return a mechanic, temporarily in his employ, to the interurban station. Pontorno invited the respondents to accompany him and they did so after some hesitation. In returning from the interurban station Damico rode in the seat beside Pontorno. Onesto occupied the rear seat alone. When nearing Pontorno’s home, in a secluded point in the highway, Pontorno was shot and killed, one shot entering the back of his head, another the shoulder and a third passing through the heart. He was dragged for some distance through the grass, leaving a bloody trail, to a nearby orchard where he was found a few hours later. Respondents fled to Chicago where several months later they were apprehended and brought to Berrien county for trial.

The deceased was also an Italian, and appears to have formerly resided in Chicago. He and the respondents were well acquainted and had had business dealings. While in Chicago Pontorno was engaged in banking and in connection therewith ran a real estate business and a steamship ticket office. It appears that at one time Onesto, a relative, and Pontorno purchased certain real estate in Chicago for the price of $66,000. Pontorno had charge of it and collected the rents. Failing to account to his co-owners a suit was begun by Onesto to compel him to make an accounting, and considerable bad feeling was engendered by this litigation, it being the claim of Onesto that Pontorno robbed him. Soon after the termination of the litigation, and in 1915, Onesto was shot by some unknown person* and it appears that Onesto charged Pontorno with either doing it himself or causing it to be done. Soon after this trouble Pontorno moved to Berrien county and purchased a farm a few miles from Benton Harbor, where he had since resided.

Before the trial was over the respondents took the stand and testified in their own behalf. Onesto admitted that he shot Pontorno but claimed that he did it in self defense. Onesto gave the details of the shooting and described what led up to it, as follows:

“On the way back (from the interurban station) he was showing us the different places and explaining things to us. After we had gone quite a ways we got to a big hill and he pointed towards his farm and said: ‘Look at my farm there, I certainly have it real nice out here.’ I then said to him: ‘Yes, your farm out here is certainly wonderful, but you have left two of us fathers out in the street without any money (by us I meant my other nephew whose name is also Frank Damico, and myself).’ And he said to me: ‘Well, what do you want; here? Did you'come all the way-out here to break my testicles? Wasn’t it enough when I gave you one shot full in Chicago? Do you want another one here?’ ”

It was Onesto’s claim that following this conversa- ' tion Pontorno jumped to the ground and that he followed him and a struggle ensued in which he wrested Pontorno’s gun from him and shot him three times. Damico testified that he took no part in it, and was corroborated by Onesto.

It was the theory of the people that the respondents conspired in Chicago to go to Benton Harbor and take the life of Pontorno, and that the motive therefor was to be found in their quarrels over business dealings in Chicago as well as in the shooting of Ones-' to which, whether rightfully or wrongfully, he charged to Pontorno. After reviewing the testimony adduced at the trial, we are of the opinion that it was sufficient to furnish a foundation for the inferences of guilt .which the State sought to draw from it. The trial court was in no error in submitting to the jury the question of respondents’ guilt.

and After deliberating several hours the jury were brought into court and the following colloquy took place:

“The Court: Gentlemen of the jury, I am advised that you have not yet agreed upon a verdict. Is there anything, any principle of law upon which the court can assist you?
“A Juror: No, I don’t know as there is!
“A Juror: One thing I would like to speak to you about, the jury would like a little information. We understood in the charge to the jury that if we saw fit to find Frank Damico guilty that he would be equally guilty with Onesto? Is that right?
“The Court: Yes, I think so, under the instructions I gave you.
“A Juror: In your instructions, if we found him guilty of anything, he has got to be equally guilty with Onesto?
“The .Court: Yes, I think that is correct under the facts, as I understand them in this case..
“A Juror: As I understand your charge, Judge, if we find Tony Onesto guilty, we will say of murder in the first degree or second degree, either one, that we had to find Frank Damico equally guilty.
“The Court: Oh, no.
“The Juror: Or discharge him?
“The Court: Or discharge him, that will do.
'“The Juror: Either equally guilty or acquittal?
“The Court: I think that is correct, Mr. Foreman.
“The Juror: That is the point I want information on.
“The Court: I think that is correct, that is, under the facts in this case.”

Error is assigned upon that part of the colloquy in which the court instructed the jury that in the event they found Damico guilty they should find him equally guilty with Onesto, or acquit him. It is hardly fair to the trial court to construe this language independently of the main charge. It was the people’s theory that the' respondents conspired to take the life of Pontorno and that they came to Benton Harbor and worked it out in accordance with the preconcerted plan. The people’s case was put before the jury on this theory. They were instructed in the main charge that:

“The defendants are jointly charged with the murder of one Pontorno. The people claim that the two defendants, Onesto and Damico, came from Chicago with the intent and purpose of killing Pontorno, that they were acting together with a common intent, and on August 1st, 1916, Pontorno was murdered by them. * * ❖
“If the jury believe, beyond a reasonable doubt, from all the facts and circumstances in the case, that the two respondents acted with a common intent to kill Pontorno — acting with a common intent to kill Pontorno, came from Chicago, and Onesto killed Pontorno in carrying out such common intent, then Damico would be equally guilty with Onesto; but if Damico was not immediately present when Onesto killed Pontorno, had nothing to do with the killing, and had not been acting with Onesto with such common intent, then Damico would not be guilty. * * *
“If the jury believe, beyond a reasonable doubt, that the respondents were acting in concert with a common intent, as I have before stated, when Onesto killed Pontorno, and if you find Onesto guilty, then Damico is equally guilty.
“If, on the other hand, when Onesto killed Pontorno, he was acting in self-defense, under the suggestions as I have before stated, then both defendants are not guilty. In accordance as you determine what the evidence shows, one of three verdicts can be rendered by you; murder in the first degree; murder in the second degree; manslaughter or acquittal.”

If Onesto did the shooting and Damico was present, aiding and assisting him in the commission of the crime, he would be equally guilty with Onesto. On the other hand, if he was not aiding and assisting Onesto in the commission of the crime, he was entitled to a verdict of acquittal. We see no room in the testimony for the jury to find that Damico was guilty of any other or different offense than On,esto was. Under the people’s theory, if he were not guilty of the same offense Onesto was, he was entitled to a verdict of acquittal. Under Onesto’s theory of self-defense Damico was entitled to a verdict of acquittal. Unless the proofs showed that the jury would have been justified in convicting Damico of an offense of lesser grade, there was no occasion for the court to instruct them in regard to it. People v. Ezzo, 104 Mich. 341; People v. Repke, 103 Mich. 459. We, therefore, conclude that the instruction was proper under the circumstances of this case.

Complaint is made because the court did not draw a distinction between second degree murder and manslaughter in reply to the request of a juror. The court, in his principal charge, defined, at some length, murder in the. first and second degrees, also manslaughter, and later in reply to the request of the juror he defined manslaughter again, saying in part:

“The Court: I want to give it to you, as near as I can; just as I instructed you before. You understand, gentlemen, what murder in the first and second degree consists, I suppose, and that what you want is simply a definition of manslaughter? Now, manslaughter is the unlawful killing of another without malice, express or implied. The offense is one that is committed without malice or premeditation.” * * *

There appears to be no merit in this contention.

The pantaloons worn by the deceased at the time he was killed was offered and received as an exhibit. Some time after the jury retired to consider their verdiet they advised the court through the attending officer that they desired to examine the pantaloons in the jury room. The court denied their request. It does not appear whether any objection was made by the State or for what reasons the trial court denied the request. The question whether exhibits admitted upon the trial shall be taken to the jury room is one of discretion with the trial court. Bulen v. Granger, 63 Mich. 311; Tubbs v. Insurance Co., 84 Mich. 646; Walker v. Newton, 130 Mich. 576; Farrell v. Haze, 157 Mich. 374; People v. Tibbetts, 173 Mich. 628; Silverstone v. Assurance Corporation, 187 Mich. 333; People v. LaLonde, 197 Mich. 76.

We cannot say in this instance that the court abused his discretion inasmuch as the particular circumstances attending his refusal do not appear of record.

The trial of this cause was a long one in which ■ both sides of the controversy were well presented. The instructions of the trial court were fair and impartial. Under these conditions the jury has done its duty and recorded its verdict. No reversible error having been pointed out in the proceedings, the judgment of conviction must be affirmed.

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