text:
    CITY OF SAGINAW v. SAGINAW CIRCUIT JUDGE.
    1. License Fees — Taxation—Police Power.
    Where a business is subjected to the payment of a fee, it must be with a view to taxation, or to cover the expense of regulation under the police power.

      2. Municipal Corporations — Licensing Transient Dealers— Authority of Council.
    A city charter providing that the common council may require transient dealers to obtain license before engaging in business, and may regulate the terms of issuing the same, does not confer authority to tax the business, but merely to license it, to the end that it may be regulated.
    3. Same — Validity of Ordinance — Discrimination Against NonResidents.
    Under a charter authorizing the municipality to license and regulate the business of transient dealers, an ordinance imposing a license fee upon non-residents of the city only is invalid.
    4. Same — Unreasonable Fees — Restraint of Trade.
    Whether a municipal ordinance which assumes to regulate the business of transient dealers is not unreasonable in requiring the payment of a license fee of $10 a day, and whether, if restricted to non-residents of the city, it is not open to the further objection of being in restraint of trade,— quaere.

      Mandamus by the city of Saginaw against Robert B. McKnight, circuit judge of Saginaw county, to compel the vacation of an order quashing proceedings instituted for the violation of a city ordinance.
    Submitted May 23, 1895.
    Denied July 2, 1895.

      William G. Gage, for relator,

      James S. Davitt, for respondent.
   Hooker, J.

The charter of the city of Saginaw provides that—

“The common council may require transient traders and dealers to take out license before engaging in business, and regulate the terms and conditions of issuing the same.” Local Acts 1889, p. 900, § 9. .

Under the authority conferred by this section the council passed an ordinance which provides — •

“That each and every person, not a' resident, who shall bring into the city any goods, wares, or merchandise, with a view to disposing of the same by auction or otherwise, without any bonafide intention of remaining permanently in the business of selling or disposing of such goods, wares, or merchandise within the city, shall be deemed and treated as a transient trayler or dealer, and before he slia^l sell or expose for sale any of such goods, wares, or merchandise within the city, either by auction or otherwise, he shall pay to the city treasurer, for the use of said city, the sum of $10 per day for every day or part of a day such goods, wares, or merchandise shall be exposed for sale.”

The ordinance provides for the issue of a license upon such payment, and a penalty for non-compliance. It also provides that the words “goods, wares, or merchandise” shall not be construed to include wood or fuel, or the products of the farm or dairy, when exposed or offered for sale by the producers thereof.

One McDevitt was convicted before a justice of violating this ordinance. Upon appeal to the circuit court, the proceedings were quashed by the respondent, upon motion, upon the ground that the ordinance was invalid, and we are asked to issue a mandamus requiring him to vacate his order in the premises, and proceed with the trial of the cause.

It is asserted that the ordinance is void because:

1. It discriminates between residents of the city of Saginaw and other persons.

2. It discriminates between non-residents, inasmuch as it requires a license only in cases where the goods sold are brought into the city.

3. The fee charged for the license is excessive and unreasonable.

The business of a transient dealer, if subjected to the payment of a fee, must be with a view to taxation, or to cover the expense of regulation under the police power. In this case it cannot be said that,the fee can be sustained as a tax, because the charter does not indicate an intention upon the part of the legislature to authorize the municipality to tax the business, but only to license to the end that it may regulate it. The language of the charter indicates a design to promote the public good rather than to obtain revenue. As said by Mr. Justice Cooley, in People v. Russell, 19 Mich. 619:

“That the regulation of hawkers and peddlers is important, if not absolutely essential, may be taken as established by the concurring practice of civilized states. They are a class of persons who travel from place to place among strangers, and the business may easily be made a pretense or a convenience to those whose real purpose is theft or fraud. The requirement of a license gives opportunity for inquiry into antecedents and character, and the payment of a fee affords some evidence that the business is not a mere pretense.”

This may be measurably true of transient dealers; and it is to protect the community from imposition and fraud, rather than to obtain revenue, that, in our opinion, this power was conferred. If this is so, there is no reason for an ordinance that applies only to non-residents, as a class, and which exempts inhabitants of the city. We do not discuss the extent to which the city may go in restricting and limiting the number of said dealers, and whether tests relating to character, etc., may be applied (see Kitson v. Ann Arbor, 26 Mich. 327; Sherlock v. Stuart, 96 Mich. 193), as this ordinance does not attempt to regulate this business upon these lines. It permits any one to engage in the business of transient dealer. If by this term is meant a dealer who goes about from place to place, there is no apparent reason for thinking that such business only needs regulation when conducted by nonresidents. It seems to us that this ordinance is aimed at non-residents, and there is room for the suspicion that it was designed for the benefit of residents, and therefore open to the criticism that it is in restraint of trade. Moreover, it borders very closely upon the line of unreasonable license fees. We think the case is within the doctrine of Brooks v. Mangan, 86 Mich. 576, if not of Chaddock v. Day, 75 Mich. 527, and that the ordinance is void.

The writ will therefore be denied, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: McGrath, C. J.

license: Public Domain

text:
    TUNNINGLY v. BUTCHER.
    1. Justices’ Courts — Attachment—Service.
    Under section 6840, 2 How. Stat, providing that a justice’s attachment shall be executed at least six days before the return thereof by seizing goods of the defendant, making an inventory thereof, and serving a copy of the attachment and inventory upon the defendant if he can be found within the county, and section 6841, authorizing substituted service if the defendant cannot be so found, the service, whether personal or substituted, must be made at least six days before the return day of the writ.
    2. Justices’ Courts — Appearance—'Waiver of Defective Service.
    A justice’s docket which shows that the parties appeared upon the return day of the writ, and that by consent the suit was adjourned “ without pleadingB or prejudice to either party,” does not establish a waiver by defendant of a defect in the service of process.
    3. Exemptions — Principal Business of Debtor — Colt Owned by Farmer.
    A two-year-old halter-broken colt, kept by a farmer with reference to its use for farming purposes, may be claimed as exempt under 2 How. Stat. § 7686, subd. 8, giving an exemption to enable one to carry on the business in which he is wholly or principally engaged.
    4. Trover — Seizure under Void Execution — Action by Wife of Debtor — Possession—Exemptions—Instructions to Jury.
    In trover for property seized on a void execution against plaintiff’s husband, it was held that the jury were properly instructed that plaintiff was entitled to recover if the property was in her possession at the time of the seizure, or if she owned the same, or if it belonged to her husband and was exempt from execution, there being evidence to support the several theories.
    Error to Genesee; Wisner, J.
    Submitted June 4, 1895.
    Decided July 2, 1895.
    Trover by Jennette L. Tunningly against George W. Butcher. From a judgment. for plaintiff, defendant brings error.
    Affirmed.

      Henry C. VanAtta, for appellant.

      A. L. Chandler, for appellee.
   McGrath, C. J.

Plaintiff, who is the wife of George B. Tunningly, brings (rover for the value of a halter-broken two-year-old colt seized by defendant, a constable, upon an execution against George B. Tunningly in a suit commenced by attachment.

The court properly held that the attachment proceedings were void. The writ was executed by seizing the property on the 19th day of May, 1892, and leaving a copy of the attachment and inventory at the last place of residence of the defendant on the 24th day of May, 1892. The writ was returnable May 28, 1892. The statutes provide that the constable shall execute the writ at least six days before the return thereof, by seizing goods and chattels sufficient to satisfy the demand and costs, making an inventory thereof, and serving a copy of the attachment and inventory upon the defendant, if he can be found within the county; that, if he cannot be found within the county, the constable shall leave a copy of the attachment and inventory at the last place of residence of the defendant. 2 How. Stat. §§ 6840, 6841. Under the statute, whether the service be personal or substituted, it must be made at least six days before the return day thereof.

It was claimed, however, that the justice’s docked showed tha-t the defendant had appeared in the attachment proceeding. The docket entry was as follows:

“May 28,1892, at 10 o’clock in the forenoon, suit called. Parties present, and answer to suit by their attorneys,— Henry G. Van Atta for the plaintiff, Chandler & Teegal for the defendant; and by mutual consent of parties the above suit was adjourned, without pleadings or prejudice to either party, until the loth day of June, 1892, at 10 o’clock a. m.
“June 15,1892, at 10 o’clock in the forenoon, suit called. Plaintiff appears, and answers to suit. Defendant appears, not in answer to suit, but for the purpose of filing an objection in writing, and on file with the court. Plaintiff declares,” etc.

It cannot be said that this was such an appearance on May 28th as waived the defect in the service of process. The evident purpose of the language, “without prejudice,” was to save the right to raise the question as to the defect in the service.

George B. Tunningly was a farmer, and was at that time absent from home, preparing to homestead a piece of land. The colt and another were kept with reference to their use for farming purposes. Plaintiff claimed that this colt was her individual property. The trial court instructed the jury as to what property was exempt under the statute; that after levy it was the duty of the officer to give an opportunity to claim the statutory exemption; that this had not been done; that if they found that the property seized was the property of the husband, but was exempt, they should find for plaintiff; that in such case the statute (2 How. Stat. § 6297) gave the wife the right to maintain the action; that if the colt was in her possession, or if it was her property, she was entitled to recover.

There was no error in these instructions, and the judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    LICHTENBERG v. WAYNE CIRCUIT JUDGE.
    Garnishment — Justices’ Courts —Appeal by Garnishee — Certiorari.
    After a garnishee in justice’s court has appealed from a judgment against him, certiorari will not lie at the suit of the principal defendant to review the garnishment proceedings.

      Mandamus by William F. Lichtenberg and others against George S. Hosmer, circuit judge of Wayne county, to compel the entry of judgment on certiorari from justice’s court.
    Submitted June 4, 1895.
    Denied July 2, 1895.

      Bowen, Douglas & Whiting, for relators.
   Montgomery, J.

On'the 25th of September, 1894, one Ernst Shrikel commenced proceedings in garnishment before Harry L. Sckellenberg, a justice of the peace in Wayne county, against the First National Bank of Detroit, as garnishee defendant; the proceedings being based upon a judgment in favor of Shrikel, and against the relators. In the garnishee proceedings a judgment was rendered against the bank of $110.65 and costs, on the 26t'h day of October, ”1894. On the 31st day of October the case was removed, by a general and special appeal, to the circuit court, by the bank. On the 5th day of December, 1894, a writ of certiorari was issued from the circuit court, at the instance of the relators, the principal defendants, to bring up the garnishee proceedings for review. The two cases came on for argument at the same time, and the respondent reversed the judgment and dismissed the proceedings against the garnishee, upon the special errors alleged in the affidavit for special appeal by the bank, and thereupon declined to render any further judgment in favor of these relators in the certiorari proceedings. Mmdamus is now asked to require the circuit judge to proceed to enter a judgment in the certiorari proceedings. The respondent offered to enter a judgment quashing the garnishee proceedings, but refused to enter any judgment in favor of the plaintiffs in certiorari.

It will be seen that the question presented is whether, after an appeal by the garnishee from the judgment against him in justice’s court, the principal defendant may then remove the case by certiorari, and thus subject the plaintiff in the proceeding to double costs, in a case Avhere the principal defendant is fully protected by the appeal. We have not much hesitation in saying that such ought not. to be the law. It is true that the court held in Lake Shore & M. S. R. Co. v. Hunt, 39 Mich. 469, that certiorari was a proper remedy to get rid of a void judgment, but this was certiorari sued out at the instance of the garnishee defendant. It was also held in Wilson v. Bartholomew, 45 Mich. 41, that the common-law writ of certiorari may be sued out by the defendant in the principal suit to review garnishment proceedings before a justice. But in neither of these cases had the proceeding been removed to the circuit court by one having the right to appeal, as the garnishee defendant undoubtedly had.

Relators contend that the rights of the garnishee defendant and the principal defendant may be different; that the garnishee may waive formalities which would be, but for such waiver, essential, but it is urged that such a waiver cannot bind the principal defendant. It would certainly be an anomaly to hold that any step in the proceedings may be dispensed with, and that a judgment valid against the garnishee, and one which he cannot disturb, may be rendered, and yet that the same judgment may be vacated at the instance of the principal defendant. Such, we think, is not the remedy open to the principal defendant. The judgment is either good or bad. The waiver is either effectual to make the judgment binding, or it is nugatory. There may be cases in which the garnishee cannot set up the judgment as a defense to the demand of the principal defendant, even though a valid judgment has passed against him. If so, it is not of any concern to the principal defendant that the garnishee defendant has by his own act made possible a valid judgment against himself. Hebel v. Insurance Co., 33 Mich. 400; Johnson v. Dexter, 38 Mich. 695. If it be true, then, that the garnishee may waive irregularities in such manner as to bind him, such waiver binds him finally; and, if it be not binding upon the principal defendant, his remedy is in a suit against his debtor, the garnishee. We do not think it can be said that the principal defendant can raise any question relating to the validity of the proceedings against the garnishee which the garnishee himself could not raise by the same-method.

When the writ of certiorari was sued out, there was no judgment affecting the rights of the plaintiffs in certiorari in justice’s court, nor has any since been entered in the circuit, and we think one reversal of the justice’s judgment sufficient to answer the requirements of all parties concerned in the litigation. McCormick Machine Co. v. Reed, 85 Wis. 201.

The writ will be denied.

The other Justices concurred.


text:
    OSOWICKI v. FERRICK.
    Justices’ Courts — Non-resident Plaintiff — Labor Claim— Security for Costs.
    3 How. Stat. § 77176, which provides that, in. any suit to recover for the personal labor of the plaintiff, security for costs “ shall not be ordered” if the plaintiff shall make and file an affidavit that he has a meritorious cause of action and is unable to give such security, does not apply to a plaintiff in justice’s court who is a nomresident of the county, and as such is required by 3 How. Stat. § 6834, to give security for costs before the issuance of process.
    Error to Gogebic; Haire, J.
    Submitted June 4, 1895.
    Decided July 2, 1895.

      Assumpsit by Fabian Osowicki against August Ferrick for labor performed. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Julius J. Patek, for appellant.

      John D. Barry, for appellee.
   Montgomery, J.

This is an appeal from a judgment of the circuit court of the county of Gogebic affirming a judgment of a justice of the peace dismissing plaintiff’s action for his failure to give security for costs. The sole question presented is whether section 7717e, 3 How. Stat., should be so construed as to excuse a non-resident plaintiff who sues to recover a labor claim from giving security for costs. That section reads:

“In any suit brought to recover for the personal work and labor of the plaintiff, security for costs shall not he ordered in case the plaintiff shall make and file with the court an affidavit that he has a good and meritorious cause of action, and is unable to procure security for costs.”

Section 0824, 2 How. Stat., provides that—

“Any justice of the peace may, * * * in his discretion, require security of the plaintiff for any costs which may be adjudged against him in any action; * * * and in all cases plaintiffs who are not residents of the county in. which the suit is brought shall give such security before process shall issue.”

It is, we think, clear that the section first quoted is limited in its scope, and was intended to prohibit justices’ or other courts from ordering security for costs in cases where such an order was under the earlier statute discretionary. The language is not intended to excuse the plaintiff from furnishing security in cases where the statute in terms requires it without any previous order of the court. See Anon., 10 Abb. N. C. 80, and Christian v. Gouge, Id. 82.

Judgment affirmed, with costs.

The other Justices concurred.


author: Grant, J.

text:
    O’BRIEN v. ALPENA CIRCUIT JUDGE.
    Plea in Abatement — Sufficiency—Accounting by Trustee.
    While strictness is required in pleas in abatement, still, where no reasonable doubt exists as to the identity of the suits, the plea will be held good.
    Accordingly, where a bill was filed by a cestui que trust
      against the trustee and the other beneficiaries to obtain an accounting of the proceeds of a judgment recovered by the trustee, and to compel the payment to complainant of his share therein, it was held that a plea was sufficient which set forth that at the time of filing the bill a suit was pending in another court of equal jurisdiction, upon a bill filed by one of the defendant beneficiaries, for an accounting respecting the sime judgment and the same trust fund mentioned in complainant’s bill, affecting the same parties, and asking relief “ in the same manner and for the same matters,” which cause was still pending and undetermined.

      Mandamus by Michael W. O’Brien against Bobert J. Kelley, circuit judge of Alpena county, to compel the vacation of an order overruling a plea in abatement.
    Submitted June 4, 1895.
    Granted July 2, 1895.

      Samuel L. May (Keena & Lightner, of counsel), for relator.

      J. Cavanagh (J. D. Turnbull, of counsel), for respondent.
   Grant, J.

James D. Turnbull filed a bill in the circuit court for the county of Alpena, in chancery, setting forth that during the pendency of the former suit of Turnbull against Monaghan, O’Brien, and Bothschild, 94 Mich, 87, said O’Brien, as plaintiff and trustee for Turnbull, O’Brien, Bothschild, and Monaghan, began a. suit in the circuit court of the United States for the Northern district of Illinois against Yider, Kinsella &- Go. to recover damages for the refusal of that firm to take and pay for posts according to a contract executed between said O’Brien, as trustee, and Yider, Kinsella & Co.; that subsequently said O’Brien recovered a judgment for $6,874.29; that said O’Brien has received a portion of said judgment; that said Turnbull is entitled to 48 per cent, of said money received upon the judgment; and that he has applied to said O’Brien to pay him Ms said share, but that said O’Brien has refused, — and prays that an accounting additional to that had in the former suit of Turnbull v. Monaghan, supra, may be had, and said O’Brien be decreed to pay complainant Ms share. The bill is filed against O’Brien and Rothschild, and the reason alleged therein for not making Monaghan a party is that he acknowledges complainant’s right to his share of the fund, and has consented to its payment. To this bill each of the defendants interposed a plea in abatement as follows:

“This defendant, by protestation, neither confessing mor acknowledging any or all matters and things in the complainant’s bill mentioned to be true in such manner and form as the same are therein and thereby set forth and alleged, does plead thereunto, and for such plea says that on the 6th day of February, A. D. 1895, or thereabouts, Sigmund Rothschild, codefendant herein, filed his bill of complaint in the circuit court for the county of Wayne, in chancery, against James D. Turnbull, complainant herein, John Monaghan, and this defendant, to obtain an accounting of the moneys received by this defendant upon a judgment obtained by him as trustee, ns'plaintitf, against Vider, Kinsella & Co., as defendants, in the circuit court of the United States for the Northern district of Illinois, being the same judgment as is set forth in the bill of complaint herein, and for an accounting respecting the trust fund and matters relating thereto as in this complainant’s bill of complaint mentioned; and said Sigmund Rothschild, complainant in said bill of complaint in the circuit court for the county of Wayne, in chancery, prayed for relief against this defendant, James D. Turnbull (complainant herein), and John Monaghan, in the same manner and for the same matters as said James D. Turnbull, complainant in this case, prays for in this, Ms present bill; that a subpoena was duly issued from .said circuit court for the county of Wayne, in chancery, and was duly served upon this defendant; and that on, to wit, the 20th day of March, A. D. 1895, this defendant duly filed and served his answer to tlhe bill of complaint in said cause; and'that said Sigmund Rothschild, complainant therein, duly replied thereto; and that said cause is now at issue; and that the said bill of complaint and the several proceedings in said cause now remain pending and of record in the said circuit court for the county of Wayne, in chancery; and that said cause is as yet undetermined and undismissed. All which matters and things this defendant avers to be true, and pleads the same to the whole of said bill, and. demands the judgment of this honorable court whether he ought to be compelled to make any answer to the said bill of complaint, and prays to be hence dismissed, with his reasonable costs in this behalf most wrongfully sustained.”

The court 'overruled these pleas as frivolous. The relator now applies for. the writ of mam damns to compel the vacation of that ordfer.

While strictness is required in pleas in abatement, still,, where no reasonable doubt exists as to the identity of the suits, the plea must be held good. The bill itself refers-to Turnbull v. Monaghan, supra, and alleges that the judgment now in controversy arose out of the same cedar transaction and under the same trusteeship which were-involved in that case, and prays for an accounting as to additional funds which have come into the possession of the trustee since the' former suit was begun. The plea alleges that Mr. Rothschild had filed a bill in equity in a court of equal jurisdiction, involvingthe same judgment,, the same trust fund, the same parties, and for the same relief; that said cause was at issue at the time the present bill was filed in the Alpena circuit, and was still pending. No one can read the bill and plea without reaching the conclusion that the two suits are identical. The plea was-sufficient, and, if sustained, it is conceded that the second suit must abate.

The order will issue as prayed, and the complainant be allowed the usual time to take issue; otherwise the plea will be allowed.

The other Justices concurred.


author: Hooker, J.

text:
    HANLEY v. BALCH.
    Directing Verdict — Reasons x4ssigned — Appeal.
    Where the trial judge, upon directing a verdict for the defendant, states as his reason for such action that the evidence will not support a verdict for the plaintiff, the judgment will not be reversed because of the failure of the court to specify the particulars in which he deems the evidence to be insufficient. Demill v. Moffat, 45 Mich. 410, and Rayl v. Estate of Hammond, 95 Mich. 22, distinguished.
    Error to Wayne; Frazer, J.
    Submitted June 6, 1895.
    Decided July 2, 1895.
    Case by George Hanley, for the use and benefit of John T. Ryan, against George W. Balch and others, for alleged conspiracy to wreck a corporation in which Ryan was a stockholder. (See 94 Mich. 315.) From a judgment for defendants upon verdict directed by the court, plaintiff brings error.
    Affirmed.

      Dickinson, Thurber & Stevenson (John Atkinson, of counsel), for appellant.

      Griffin & Warner (Otto Kirchner, of counsel), for appellees.
   Hooker, J.

The court directed verdict for defendants. The first question is whether a general direction, without giving reason therefor, should be reversed.

This case differs from Demill v. Moffat, 45 Mich. 410, in that it does give a reason, viz., that the evidence will not support a verdict. In that case the court said, ‘‘The defendant is entitled to your verdict.”

In Rayl v. Estate of Hammond, 95 Mich. 22, the court directed a verdict for defendant without giving any reason therefor, or any statement as to the points of law upon which its direction was Jiased. This, it was held, could not be distinguished from Demill v. Moffat.

Neither of those cases showed whether the verdict was directed by reason of a jurisdictional question, or because of a want of evidence to establish plaintiff’s case, or for the reason that there was affirmative proof conclusively establishing a defense. As already said, in the case before us the judge explicitly states a reason, viz., that there was not sufficient evidence to warrant a verdict. He might, perhaps, have mentioned some point or points upon which evidence was lacking, but in such case, if we found him mistaken as to the particular point stated, it would not require a reversal if the evidence was lacking in another essential. The ground that the evidence would not support the verdict was the basis of the charge, and, as we sought to show in Tillotson v. Webber, 96 Mich. 153, this is distinguished from the cases of Demill v. Hoffatt and Rayl v. Estate of Hammond.

The propriety of the judge’s holding remains to be considered. The decision of that question involves no legal question of interest, and depends entirely upon the evidence, and we think it unprofitable to review this at length. An examination of the record satisfies us that the trial court did not err in stating that the plaintiff had failed to establish a case.

The judgment will therefore be affirmed.-

The other Justices concurred.


author: Hooker, J. Grant, J.

text:
    JACKSON v. BRITISH AMERICA ASSURANCE CO.
    1. Insurance Policy — Construction — Use of Riders — Inconsistent Provisions.
    All part of an insurance policy will be harmonized and given effect if possible, but, where the body of the policy and the riders attached thereto are irreconcilable, the latter will control.

      2. Fire Insurance — Use of Marine Policy — Conflicting Provisions — Loss of Vessel while Engaged in Navigation.
    Defendant insured 'a vessel against loss by fire from December 4, 1893, to May 1, 1894. The policy, which was written upon a marine insurance blank, contained a warranty by the insured that the vessel should be navigated between April 1st and November 30th only, and from the last-mentioned date to April 1st next ensuing should be “ laid up and safely moored.” A rider was attached more specifically assuming to insure “the steamer B., laid up and properly moored” in a certain harbor, and giving permission to do painting, to make necessary alterations and repairs, to fit out in the spring, and to “ move from dock to dock for the purpose of loading and unloading cargo.” 'Another rider provided: “This policy covers against fire only, on (he terms and conditions of the standard form fire policy of the State of New York, and anything in this policy conflicting therewith is hereby waived.” By the “standard form fire policy” mentioned in the rider, property was insured “ while located and contained” as described therein, and it became void if mechanics should be employed in repairing for more than 16 days. The boat burned at a distance from the harbor on April 16, 1894, while engaged in navigation. Held (Grant, J., dissenting), that defendant was liable for the loss, the contract being construed as follows:
    (1) While the insurance was issued according to the terms of the standard policy, and the insured could not insist on any provision necessarily conflicting therewith, the clause permitting navigation after April 1st was not of that character.
    (2) The term “ laid up and properly moored,” and the clause permitting the vessel to move from dock to dock, contained in the first rider, did not indicate an intention to limit the insurance to such time as the boat should remain in the specified harbor, but were consistent with the navigation clause in the marine policy.
    (3) The provision as to repairs was necessary to avoid the effect of the prohibitive clause in the standard policy.
    8. Same — Construction of Policy by Insured.
    The fact that after the fire, upon defendant’s repudiating liability, the insured claimed that he had the right to navigate under the provision permitting the vessel to move from dock to dock for the purpose of loading and 'unloading cargo, cannot alter the construction to be given to the policy.

      4. Fire Insurance — Loss op Vessel — Damages—Evidence.
    Under a provision in a fire policy upon a vessel that the loss or damage for which the insurer shall be liable shall in no event exceed what it would cost the insured to repair or replace the same with material of like kind and quality, the insured cannot, in a suit on the policy, be required to prove the exact extent of the damage, where the boat sank before being entirely consumed.
    5. Same.
    In an action on a fire-insurance policy for the loss of a vessel which sank while burning, a witness who admits that he cannot estimate the cost of repair may nevertheless testify, if otherwise competent, that in his opinion, apart from that question, the boat is a total loss.
    Error to Bay; Maxwell, J.
    Submitted June 5, 1895.
    Decided July 2, 1895.

      Assumpsit by Gurdon K. Jackson, trustee, against the British America Assurance Company on a fire insurance policy. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Shaw & Wright (H. D. Goulder and George Clinton, of counsel), for appellant.

      T. A. E. & J. C. Weadock (T. E. Tarsney, of counsel), for appellee.
   Hooker, J.

The plaintiff’s vessel having been burned in Detroit river, while on a voyage from Bay City to Cleveland, an action was brought and judgment obtained by him upon a policy of insurance, and defendant has appealed.

The first and most important question raised by the record is whether the policy covered the vessel after leaving Bay City, and this depends upon a construction of the policy, which consists of the ordinary marine policy, with certain riders attached. It is conceded to indemnify against loss by fire only. Defendant claims that it was-winter insurance, and covered the property only while the-vessel was in the harbor of Bay City; while the plaintiff asserts that it was a fire policy, covering the vessel from the 4th of December to the 1st of May, and that by the express terms of the policy she might navigate the lakes and Detroit river after April 1st. As stated, the policy was written upon a blank marine policy, which, if not qualified, would have insured the vessel against the other usual risks of navigation. It provided as follows:

“The British America Assurance Company * * * does make insurance, and cause $5,000 to be insured, upon the body, tackle, apparel, and other furniture of the steamer called the ‘Burlington/ from noon of the 4t(h day of December/1893 (the said vessel being warranted by the insured to be then in safety), to noon of the 1st day of May, 1894, unless sooner terminated or made void by con-* ditions hereafter expressed. Warranted by the insured to be employed exclusively in the freighting .or passenger business, or both, and not to carry quicklime in the lower hold, and to navigate only the waters, bays, harbors, rivers, canals, and other tributaries of Lakes Superior, Michigan, Huron, St. Clair, Erie, and Ontario, and River St. Lawrence to Quebec, usually navigated by vessels of her class, during the portion of the life of tlliis policy between noon of April 1st and noon of November 30th; * * * and between noon of November 30th and noon of April 1st ensuing, said vessel shall be laid up and safely moored, satisfactorily to this company.”

It was stamped: “This is a fire policy only.”

If this were the only provision upon the subject, it is plain that plaintiff’s contention that he had a right to navigate the vessel after April 1st without affecting his insurance is correct; but upon defendant’s behalf it is contended that the riders and the circumstances under which the policy was obtained, and plaintiff’s correspondence since the loss, exclude the plaintiff’s construction, and show that it was the intention of the parties that the policy should be limited to such time as the vessel should remain in the harbor where she then was.

We will first consider the effect of the riders, in and of themselves. It is elementary that all parts of the policy are to be harmonized and given effect, if it can be consistently done, and that, unless the riders are irreconcilable with the printed clause quoted, such clause must stand. If they are inconsistent and irreconcilable, the riders must control. The first rider upon the policy was as follows:

“On the hull, and 'on the engines, boilers, machinery, tackle, small boats, apparel, and furniture, belonging to and while on board of the steamer Burlington, laid up and properly moored in the harbor of Bay City, Mich. Permission is hereby given to do painting, and to malee necessary alterations and repairs, and to fit out in the spring, and to move from dock to dock for the purpose of loading and unloading cargo.”

Another rider was attached, reading as follows:

“This policy covers against fire only, on the terms and conditions of the standard form fire policy of the State of New York, and anything in this policy conflicting therewith is hereby waived.”

The significant provisions of these riders, and those alleged to affect the question under discussion, are:

1. The language, “steamer Burlington, laid up and properly moored in the harbor of Bay City, Mich.”

2. “Permission to do painting, and to make necessary alterations and repairs, and to fit out in the spring.”

3. The privilege “of moving from dock to dock for the purpose of loading and unloading cargo.”

4. The exclusion of all risks but fire.

' 5. The limitation to the terms of the standard form policy.

(i. The waiver of provisions of the policy written, so far as they conflicted with the standard policy.

The fact that the first rider describes the property insured differently from the body of the policy has no especial significance. It is somewhat more specific in articles mentioned; it may be doubtful whether it is more comprehensive.

The provisions numbered 4 and 5 clearly limit the risk, to losses by fire. They are irreconcilable with the provisions of the marine policy as to other risks, and must govern in that respect, and plaintiff does not question this.

There is more question over the effect of the limitation to the terms of the standard form policy. This standard form policy referred to appears to be the “standard fire insurance policy of New York,” and a copy is included in the record. It is said to be identical with the Michigan form. Counsel for the defendant claim that this rider gives the same effect to the policy as though written upon a standard form blank, and that in such blank there is no provision for -navigation during certain portions of the year, but, on the contrary, the printed part of the standard policy uses the following language, viz.: “To the following described property, while located and contained as described herein.” It is said that this provision should be substituted for the other, and if that be done there is nothing to indicate that the vessel might leave the place where she was moored, except to go from dock to dock in that harbor for the purpose of unloading and loading cargo.

These riders, like the policy, were signed by the underwriter, and we may dismiss the provision in relation to the waiver of inconsistent provisions by saying that it was the waiver of the company, and mot of the plaintiff, made for the benefit of the plaintiff, and not the defendant. It was doubtless designed to cover the various provisions pertinent to marine risks, but which had no application to a purely fire risk. On the part of the plaintiff, no express waiver was necessary, for, by accepting this policy, he agreed to take insurance according to the terms of the standard policy, and cannot insist on anything in the policy taken that is necessarily in conflict with it. There is, therefore, no especial significance to the waiver, unless its language implies that the provisions of the marine policy apply where they are not inconsistent with the standard policy.

Had the standard policy blank been used, and the clause quoted from the same been followed by the provision in relation to navigation after the 1st of April, it would have been a valid policy, and would have covered the property while in other waters than the harbor of Bay City. There is nothing inconsistent with the standard policy, or contrary to the law, in such a provision. Who can doubt that such a provision in a policy covering a threshing machine, a circus outfit, or a steam vessel would be efficacious? Indeed, the mere issuance of a policy upon property which, from its nature and use, is not adapted to its remaining in a given place, has been held to constitute insurance against its destruction while abroad. Especially has this doctrine been applied to livery stock, farmers’ property, and in one instance to a lady’s dolman while in the hands of a furrier for repair. See May, Ins. §§ 401u-401c; Benton v. Insurance Co., 102 Mich. 281, 26 L. R. A. 241, and note. There is no necessary conflict between such provisions, and, had this clause providing for navigation been printed upon the rider, no dispute could arise over it.

This brings us to the consideration of the first provision. It is urged that it would have been easy for the underwriter to limit the insurance upon the Burlington while laid up and moored, etc., and that the omission of the word “while” indicates the' intention to limit her to that place during the period of insurance, an inference which is said to be intensified by the third provision, as to moving from dock to dock. On the other hand, plaintiff suggests that the place of mooring was descriptive merely. The trouble with the defendant’s claim about this is that it nullifies the provision regarding navigation, which we have shown is not inconsistent with the standard policy. It seems to us that the ’language may not only be reconciled with the plaintiff’s claim, but that the words had a meaning and purpose consistent with the navigation clause. If it be conceded that the general terms of the standard fire policy apply, these two riders become necessary, or, if not indispensable, at least useful to set at rest possible questions that might arise. The evidence shows that the underwriter did not care to take this risk. It was represented to him that the vessel was in a safe place, properly moored in Bay City harbor, and the rider stated that she was there. Under the standard policy alone, this would have been nothing unusual, nor does it seem to us any more so under the clause quoted from the marine policy, which requires the vessel to be laid up and moored satisfactorily to the underwriter, if it was desired to indicate a place of mooring. Again, under the marine policy clause, there is nothing to indicate that the vessel might move from dock to dock previous to the 1st of April, and if the plaintiff desired to unload after obtaining the policy, or load in the spring before April 1st, it was prudent to have the clause inserted. We have little doubt that it was inserted at his instance, and it was as consistent with an intention to start upon a voyage April 1st under the clause in the marine policy as May 1st upon the defendant’s theory. The provision as to repairs was made necessary by reason of the provision relating to repairs in the standard policy. There is evidence tending to- show that, under a strictly marine policy, repairs, etc., might be made during the winter, but the standard policy provides that the same shall become void if mechanics are employed in building, altering, or repairing for more than 15 days.This provision is done away with by the rider.

This leaves only the telegram from the plaintiff to be discussed, upon this branch of the case. After the ñre, the plaintiff furnished proofs of loss, and the underwriter’s agent wrote as follows, viz.:

“We have no insurance on steamer Burlington burned in Detroit river. See your policy, which insures Burlington while laid up and safely moored in harbor of Bay City, Mich.”

To this the plaintiff replied by telegram as follows:

“Burlington was moored safely at dock when you wrote insurance, but you gave permission to fit out in the spring, and to move from dock to dock for the purpose of loading and unloading cargo. Look at your contract.”

It is argued from this correspondence that the plaintiff sought to maintain that.he was within the contract, and that the vessel had the right to go from Bay City to Cleveland to load and unload cargo, thereby implying that he recognized the fact that she had not the right to navigate unless under that provision. This language justifies both of these inferences, but this alone is not, in our opinion, sufficient to change the construction to be given the policy.

We are therefore satisfied that each of the provisions in the rider had a specific purpose, and that such purposes were entirely consistent with the express provision in the marine policy, providing for navigation after April 1st, and therefore that the policy covered the vessel at the time of the fire. We have, then, a fire risk simply, under the standard policy, upon a vessel in Detroit river.

Counsel for the defendant assert that there was not sufficient proof to enable the court to determine the question of damages. The following provision is relied on, viz.:

“This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation, however caused, and shall in no event exceed wh'at it would then cost the insured to repair or replace the same with material of like kind and quality.”

It is contended that, as the insured would not be entitled to recover more than the cost of repairing or replacing the property damaged with material of like kind and quality, it was incumbent upon the plaintiff to prove what that cost would be. The plaintiff’s witnesses testified regarding the fire, but no one seems to have been able to give an estimate of the extent of the burning. except in a general way. They testify that the cabin burned, and the deck was burned through, but do not know how much the hold was injured. She was laden with lumber, and there was no means of telling accurately. When she sunk, she was thought to have broken in two, and, although a diver examined her, he was unable to tell definitely the extent of the injury. We think there was evidence to be considered upon this subject, and that a plaintiff cannot be required to make a minute examination during a conflagration, or to go to the bottom of the lake or sea to estimate the cost of repair of a vessel which sunk before she was entirely consumed. Defendant’s claim, if the law, would render it impossible for a plaintiff to recover upon a purely fire policy, where the vessel sunk beyond the reach of divers. Even in shallow water, ship-building and diving are frequently separate callings, and we cannot suppose it practicable to always find a diver qualified to estimate the repairs required, if he should be able to ascertain what repairs would be necessary when at the bottom of the sea or lake. No authorities are cited in support of the defendant’s claim, and we think none can be found which hold to so strict a rule as is here invoked.

The court found that “the vessel was practically destroyed, so much so as to be a total loss.” It is urged that “the only evidence in the case which can in any degree support a finding of a total loss was the testimony of one Quinn, and was improperly admitted, against objection and exception.” Quinn was the diver. He spent about three hours examining the vessel, and, as it happens, was a ship carpenter by trade. He said that he examined her thoroughly from where she started to burn. After describing how and where she was burned, he said: “She was in pretty bad shape.” Then followed the question:

“From your experience and knowledge of vessels, and your personal observation of this one, to what extent would you say she was injured by the fire?
“A. I should say she is a total loss, so far as any use in rebuilding is concerned.”

He said she could be raised, but might come up in pieces, and the job might perhaps be done for $2,000. He did not know whether she was in shape to utilize when raised, but apparently thought it improbable. He could not estimate the cost of repair. After cross-examination, he was asked the following question upon redirect:

“Q. Is it your judgment, taking into consideration the condition in which you found the boat, and the necessary cost of raising her, independent of the cost of rebuild or repair, that the boat, in her present condition, is a total loss?
“A. Yes, sir.”

This was the answer excepted to. The objection was that the witness did not regard himself competent to estimate the cost of repairs. As will be seen, the cost of repairs was eliminated from the question as originally asked. We think that the court was not in error in permitting the witness to answer.

Upon the general question, whether there was proof that the loss was total, we think that there was evidence tending to show it, and it follows that it was for the circuit court to weigh, and we cannot review it.

We discover no error in the record, and the judgment-will be affirmed.

McGrath, C. J., Long and Montgomery, JJ., concurred with Hooker, J.

Grant, J.

(dissenting). I cannot concur in the construction placed by my brethren upon the contract of insurance upon which the plaintiff seeks to recover. It seems to me entirely clear that this was a contract for what is known as “winter insurance,” and covered the property insured only when the boat was “laid up and properly moored in the harbor of Bay City.” This construction follows from the further language of the contract:

“Permission is hereby given to do painting, and to make necessary alterations and repairs, and to fit out in the spring, and to move from dock to dock for the purpose of loading and unloading cargo.”

No such language would be appropriate or necessary to cover a boat and its contents while engaged in navigation. There could have been no object in describing the “steamer Burlington, laid up and properly moored in the harbor of Bay City,” except it was to fix the locus in quo during the life of the policy. If it were the intention to insure the boat under all circumstances, it would only have been necessary to describe the property as the steamer Burlington and its contents. That the plaintiff so understood the contract is evident from his telegram to the defendant:

“Burlington was moored safely at dock when you wrote insurance, but you gave permission to fit out in the spring, and to move from dock to dock for the purpose of loading and unloading cargo. Look at your contract.”

It thus appears that the plaintiff recognized the contract as one for winter insurance only, and sought to ' maintain its validity by interpreting the permission to move from dock to dock to apply to the boat when engaged in navigation. I do not think that courts should place a construction upon a contract different from that which the parties themselves have placed upon it, in a case where it is susceptible of two constructions.

I think the judgment should be reversed, and no new trial ordered.


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    JACKSON v. ORIENT INSURANCE CO.
    Fire Insurance.
    Case ruled by Jackson v. British America Assurance Co., ante, 47.
    Error to Bay; Maxwell, J.
    Submitted June 5, 1895.
    Decided July 2, 1895.

      Assumpsit by Gurdon K. Jackson, trustee, against the Orient Insurance Company on a fire policy. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Shaw & Wright (H. D. Goulder and George Clinton, of counsel), for appellant.

      T. A. B & J. C. Weadock (T. B. Tarsney, of counsel), for appellee.
   Hooker, J.

This cause is ruled by that of Jackson v. British America Assurance Co., ante, 47, which it closely resembles.

Judgment affirmed.

The other Justices concurred.


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    MURRAY v. NEAR.
    Joint Stock Association — Winding Up — Equity Jurisdiction-Construction op Contract.
    Several persons entered into a contract with D. by which they agreed to contribute certain sums “as and for stock” in an hotel .building to be erected by him, and to “take in pay” a corresponding interest in the property. D. was to have the use of the building so long as he should conduct an hotel therein, by paying interest to the others upon the amounts of their several subscriptions. D. constructed the building, and used it for hotel purposes for several years, paying interest as provided by the contract, but no stock was ever issued. Upon discontinuing the business as unprofitable, D. filed a bill to determine the interests of the respective parties, and to wind up the affairs of the concern. Held, that equity had jurisdiction; that the relation of debtor and creditor existed between the parties only as to the interest which D. was to pay while running the hotel; and that a decree was properly entered for a sale of the property, and a division of the proceeds among all of the parties in proportion to the amount furnished by each.
    Appeal from lugham; Person, J.
    Submitted June 5, 1895.
    Decided July 2, 1895.
    Bill by Henry J. Donnelly against William F. Near and others to determine the respective rights of the parties in an hotel built by them, and to wind up the affairs of the concern. Complainant died pending the suit, and it was revived in the name of his administrator, Michael J. Murray. From a decree in favor of complainant, defendant Near appeals.
    Affirmed.

      Q. A. Smith and Jay P. Lee, for complainant.

      Arthur D. Prosser, for appellant.
   Grant, J.

The rights of the parties to the contract involved were substantially settled in Near v. Donnelly, 80 Mich. 130. Pursuant to that decision the case was remanded, and referred to a commissioner, who reported to the court; and upon the coming in of the report the court decreed that Near was entitled to, and had an equitable lien upon, an undivided 5-18 of the property, and that the interest then due was $870.52. This Donnelly subsequently paid. The hotel business having become unprofitable, Mr. Donnelly discontinued the business, and filed the bill in this cause to determine the rights and interests of the respective parties, for the appointment of a receiver, and for the winding up of the affairs of the concern. Mr. Donnelly died during the pendency of the suit, and it was revived in the name of his administrator. The court entered a decree that Mr. Near owned 50-180, and Mr. Teal 3-180, and complainant 127-180, of the property; that there was due to Near $82.1)9 for interest upon the closing of the hotel. The-property was ordered sold, and the proceeds divided among the parties, giving to Mr. Near the accrued interest.

Defendant insists that the relation existing between Donnelly and the subscribers was that of debtor and creditor. It was decided in the former case that that relation did not exist, but that each subscriber was entitled to an interest in the hotel property according to the amount of his subscription. The relation of debtor and creditor existed only as to the interest which Donnelly agreed to pay while he was running the hotel. Payment of this interest was enforceable in an action at law. Near v. Donnelly, 93 Mich. 460. We think equity had jurisdiction to determine the rights and interests of the parties to this contract, and that the decree for a sale of the property and division of the proceeds was right.

Decree affirmed, with costs!

The other Justices concurred.


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    POWERS v. DAILY.
    Landlord and Tenant — Action for Rent — Recoupment—Injury to Business.
    A lessee who has sold the business which he conducted upon the leased premises, under a contract providing that a certain portion of the profits should be paid to him to apply upon the purchase price, has no such interest in the business. as to entitle him, in an action for rent, to recoup damages for an injury which the business is alleged to have sustained during the period of his vendee’s occupancy by the action of the lessor in closing an alley which afforded access to the premises
    Error to Kent; Grove, J.
    Submitted June 5, 1895.
    Decided July 2, 1895.

      Assumpsit by William T. Powers against Fred J. Daily for rent. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      McKnight & McKnight (James T. McAllister, of counsel), for appellant.

      C. E. Gleason (Arthur Lowell, of counsel), for appellee.
   Grant, J.

For several years prior to April, 1892, the defendant had leased of the plaintiff certain rooms in the Opera-House building in Grand Rapids, in which he kept a saloon and restaurant. On May 5, 1891, defendant sold out all his stock and fixtures and business to a firm by the name of Hennessey.& Waters, for the sum of $3,500. One-lialf was paid in cash, and- a chattel mortgage was executed upon the stock and fixtures to secure the balance. By the terms of this mortgage $150 was to be paid July 1,1891, and the residue in monthly payments of $100 each, according to 17 promissory notes. Hennessey & Waters paid the liquor tax, taking a receipt in their own name, carried on the business themselves, paid the rent, and had paid Mr. Daily’s claim, except $500. At the expiration ' of the lease, in April, 1892, plaintiff was unwilling to lease to Hennessey & Waters, probably because of the mortgage existing upon the stock and fixtures . A new lease, dated April 5, running for a year, was executed to the defendant, the plaintiff consenting that Hennessey & Waters might occupy the rooms and carry on the business specified in the lease. They paid the rent fot 10 months, but failed to pay the eleventh month’s rent. Upon such failure, plaintiff brought suit to recover possession of the premises, and obtained judgment and possession shortly after the lease had expired. He then instituted this suit to recover the unpaid rent. The defendant sought to recoup damages for the reason that the plaintiff had closed an alley, whereby one access to the saloon was cut off, and certain windows closed, and the business was thereby injured. The court held that the defendant had no business to be injured, and therefore could not recover.

It appears that there was a verbal arrangement between defendant and Hennessey & Waters that after deducting the expenses of the business, and $15 per week each to Hennessey and Waters, the residue of the receipts was to be paid to defendant, to apply on the purchase price. Daily had no other interest in the profits or in the business. His security was ample, but he failed to renew his chattel mortgage, whereby he lost his lien by the execution of a second mortgage to another creditor.

The relation existing between defendant and Hennessey & Waters was not that of principal and agent, but solely that of vendor and vendee, in which the vendor was paid one-half the purchase price in cash, transferred the title to all the goods, fixtures, and business, and took security for the payment of the residue of the purchase price. The instruction of the circuit judge was correct.

Judgment affirmed.

The other Justices concurred.


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    McCARN v. WILCOX
    1. Equity Pleading — Bill to Discharge a Mortgage — Defenses -Cross-Bill.
    Under a bill filed for the sole purpose of securing the cancellation of a mortgage alleged to have been paid, a cross-bill will not lie to enforce the specific performance of a parol agreement by complainant to convey to defendant an undivided interest in the premises, or to declare a prior conveyance of the land from defendant to complainant to have been intended as security only; nor will such matters constitute a defense to the suit. Defendant’s remedy in such case is by an independent • suit in chancery.
    3. Statute of Frauds — Parol Trust in Lands.
    One who conveys land to the purchase of which both he and his grantee have contributed, relying merely upon the latter to do equity as between them, is remediless under the statute of frauds.
    3. Mortgage — Payment—Subrogation of Mortgagor.
    Whether a mortgagor who has conveyed by a full covenant warranty deed can, upon paying his mortgage debt and taking an assignment, become subrogated to the rights of the mortgagee by reason of an alleged equity in the premises, — qucere.
    Appeal from Allegan; Padgham, J.
    Submitted May 21, 1895.
    Decided July 2, 1895.
    Bill by Myron H. McCarn, administrator of the estate of Eliza Wilcox, deceased, and others, against Gilblas Wilcox, Samuel H. Wilcox, and John M. Granger,, to procure the cancellation and discharge of a mortgage. From a decree for complainants, defendants appeal.
    Affirmed

      Charles R. Wilkes, for complainants.
    W. B. Williams & Son, for defendant Gilblas Wilcox.
   Grant, J.

The bill in this case was filed by the administrator and the heirs of Eliza Wilcox, deceased, to procure the cancellation and discharge of a mortgage for $400, executed by defendant Gilblas Wilcox and Ms wife, Eliza, June 29, 1872, to .defendant Granger. Decree was entered for the complainants.

The mortgage was upon a farm of 40 acres. It was deeded to Gilblas June 29, 1872, and on the same day Gilblas, by a warranty deed, conveyed it to Eliza. The consideration of the deed to Gilblas was $1,250, of which Eliza paid either $600 or $680. The $400 obtained on the Granger mortgage was also applied in payment of the purchase price, and Gilblas paid the remainder, — either $250 or $170. Although the deeds and mortgage bear date the same day and were simultaneous transactions, the mortgage and note were executed while the title was in Gilblas, and she executed the mortgage solely as his wife, the note being executed by him alone. In 1879, Gilblas and his wife moved upon this land, and occupied it as their home until her death, June 5, 1892. At the time of their marriage she was a widow and he a widower, and each had children by the former marriage. They worked the farm until 1884. She then leased the premises to her son by a former marriage, the rental being $50 per year and the support of Mr. and Mrs. Wilcox, except a year or two when he leased it on shares. It appears that she paid some upon this mortgage, and the bill admits payments made by him to the amount of $561. He made the last payment, and requested Mr. Granger not to discharge the mortgage, for the reason that he desired to hold it for the purpose of maintaining his rights and equities in the land. Subsequently, Mr. Granger assigned the mortgage to Gilblas, and Gilblas assigned it to defendant Samuel.

The answer of Gilblas admits the conveyances, but asserts that he has equitable rights in the land. He alleges that the deed was made by him for the purpose of fully protecting the said Eliza Wilcox for her portion of the purchase money therein; that the consideration expressed in said deed was intended to be the consideration for the moneys paid by her on said purchase, and that said deed was not intended as a gift or gratuity in any manner; that the dealings between them in regard to said premises were in entire confidence that each would do in reference to the other as would be just and equitable in regard to their respective rights therein, until, some time in the year 1879, and after they had moved on said premises, this defendant ascertained that the said Eliza Wilcox was not willing to make any adequate arrangement in regard to the title of said premises to protect this defendant and his interest therein; and that, after learning such facts, he did not have indorsed upon said note and mortgage the moneys paid by him to said Granger, but took his receipts therefor. Defendant admits that Eliza paid $600 of the purchase money, and asserts that he paid $650, — $250 in cash, and the Granger mortgage. He then alleges that—

“She at the time of her death had no greater interest in said premises in proportion to this defendant’s interest therein than the said sum of $600 is to the said sum of $650, so paid and obligated to be paid in by this defendant, except for whatever sums of money have been allowed against the estate of said Eliza for improvements made upon said premises, which amount fully appears from the records and files in the estate of said Eliza Wilcox in the probate court for the county of Allegan.’-’

Upon the answer, which was also filed in the nature of a cross-bill, he prays—

“That the respective rights and interests of this defendant and the said complainants, children and heirs at law of Eliza Wilcox, in and to said premises, may be fully-adjusted in accordance with the amounts paid therefor bv him and by her; that the premises may be sold under the order and decree of this court, and the proceeds thereof applied pro rata according to their respective rights and interests therein.”

A demurrer was interposed to the cross-bill, and sustained, but it was permitted to stand as an answer to the bill of complaint.

The defendant does not ask in his answer to be subrogated to the rights of the mortgagee under his assignment from him; nor is this question presented in the briefs. Possibly, he would not be entitled to any such relief, inasmuch as he was the original debtor, and made payments in extinguishment of his debt, which would carry with it the cancellation of the mortgage. Neither does he ask to have the deed declared a mortgage. Nor does he ask for the specific performance of a parol contract to convey to him one-half interest in the land upon the payment of the Granger mortgage. Had he relied upon either, he should have filed a bill in equity. Neither of these constitutes a proper defense in an answer, or a proper subject for a cross-bill, to a bill filed solely for the purpose of securing the cancellation and discharge of a mortgage. There is no such relation between these claims as to make them the proper subject of controversy in the same suit. If it be a fact that Mrs. Wilcox refused to part with her money for the purchase of this land unless a deed was made to her, and he chose to place the title in her, relying upon her to do equity between them when the mortgage was paid, he is entitled to no relief. It is unnecessary to cite authorities to show that such a transaction would be within the statute of frauds.

It is undoubtedly true that Mrs. Wilcox contributed $600 to the purchase of this land; that he contributed $250; and that, by their joint efforts, they paid the mortgage. It is a hardship and probably an injustice that he should now be deprived of any interest in the land, but courts of equity cannot ignore the well-settled rules of law. He knew in 1879 that she denied that he had any interest in it. It is conceded that the mortgage is paid, and that it is necessary to sell the land in order to pay the claims allowed against the estate. It cannot sell to advantage with this mortgage undischarged, for, if it still exists, the amount now due would be more than half the value of the land. The necessity of discharging the mortgage is therefore apparent. Gilblas’ interest, if he has any, can be enforced only in an independent suit in chancery.

Decree affirmed, with costs.

The other Justices concurred.


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    SHRIMPTON & SONS v. ROSENBAUM.
    1. Sale — Fraud of Seller — Evidence.
    Where an action for goods sold is defended on the ground that a greater quantity than that agreed upon was fraudulently inserted by plaintiff in defendant’s written order, evidence of the conversation between the parties at the time of procuring the order, and of the circumstances surrounding the transaction, is admissible to prove the fraud.
    2. Same — ratification.
    Plaintiff sued for the purchase price of three great gross cards of hooks and eyes, claimed to have been shipped to defendant upon his written order. The defense claimed that the order actually given was for three gross only, and that the larger number was fraudulently inserted by plaintiff’s agent. As an inducement to the order, plaintiff was to print defendant’s advertisement upon the cards containing the hooks and eyes. Plaintiff afterwards wrote to defendant, acknowledging the receipt of an order for “three great gross,” giving a copy of the advertisement, and requesting defendant to examine the same, and, if O. K.. to sign and return. Defendant signed the printed statement which followed, to the effect that he had “ checked this all over carefully,” and found it to be “ correct in every particular,” placed his “ O. K.” within the space containing the advertisement, and returned the letter. Held:

    (1) That defendant was properly permitted to testify that he supposed the letter to have been sent to obtain his approval of the advertisement, and that he gave no attention to anything further included therein.
    (2) That, with this explanation, the giving of the confirmatory order did not conclusively preclude defendant from relying upon the fraud in the original transaction.

      3. Fraud — Evidence—Similar Transactions.
    Where one is charged with fraud in procuring an order for goods, evidence of similar transactions between him and others is admissible upon the question of intent.
    Error to Kalamazoo; Buck, J.
    Submitted June 5, 1895.
    Decided July 2, 1895.

      Assumpsit by Alfred Shrimpton & Sons (a corporation) against Simon Rosenbaum and others for goods sold. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      E. A. Crane, for appellant.

      Howard & Roos, for appellees.
   McGrath, C. J.

The facts of this case are similar to those in Shrimpton & Sons v. Netzorg, 104 Mich. 225; and the principal questions raised here are ruled by the decision in that case.

The order was printed, leaving spaces as to quantities and dates, and containing blanks of which the following are copies:

One of the inducements held out was that the plaintiff was to print, upon the card containing the hooks and eyes, defendants’ advertisement. Just before the signature, printed in smaller type, were the words: “When ready, ship by the cheapest way.” Defendants’ testimony was that plaintiff’s agent first took the order in a memorandum book, which was exhibited .to defendants, and approved; that the order there written was for “three gross;” that-plaintiff’s agent then filled out the order blank, informed defendants that it contained the order given, and defendants, relying upon the representation, signed the same without reading it. Afterwards plaintiff wrote to defendants as follows:

“We are in receipt of your esteemed order given to our salesman Mr. Bertrand for three great gross cards of Kantopen hooks and eyes, to be put up as soon as we can prepare the goods with your name and special advertising matter printed thereon.
“We read the advertisement as follows:
“Please check this all over carefully, making any changes or corrections you desire; and, if O. K., sign, and return to us by first mail, in the inclosed stamped envelope, and we will proceed with the order. It usually requires from JO to 70 days to get out this class of goods, but we will hurry the order, and ship at the earliest possible date. Thanking you for the favor, we remain
“Yours respectfully,
“Alfred Shrimpton & Sons, Ltd.
“We have checked this all over carefully, and find it to be correct in every particular.
[Signed] “Rosenbaum & Speyers.”

Defendants attached their signature, and returned this letter. They testified that they did so supposing that it had been sent to obtain their approval of the advertisement, and that they gave no particular attention to the other portions of the letter, but placed their “O. K.” within the space containing the advertisement, as indicated. The defendants, upon receipt of the bill for the goods, refused to receive them, and they remained at the freight office.

It is urged that this case is distinguishable from the Netzorg case, in that here a confirmatory order was given. It was entirely proper to permit the explanation of the circumstances under which this order was obtained. Both papers related to the same transaction. If the first was obtained through fraud, defendants would be bound to repudiate it when discovered, and not before. The transaction was tainted by the fraud in the procurement of the original order, and the procurement of the confirmatory letter did not purge the transaction of the fraud.'

The testimony tending to show similar transactions with others was admissible as bearing upon the question of intent. Beebe v. Knapp, 28 Mich. 53; French v. Ryan, 104 Mich. 625.

The judgment is affirmed.

The other Justices concurred.


text:
    FISHER v. NAYSMITH.
    Trespass — Torn Grading Proceedings — Damages.
    Where, under void proceedings to grade a street, a cut is made opposite the land of an abutting owner, and ornamental trees within the limits of the way are removed, the incidental benefits accruing to the owner’s remaining premises by reason of the improvement cannot, in trespass by him for the injury, be considered in mitigation of the actual damages sustained.
    Error to Kent; McMahon, J., presiding.
    Submitted June 5, 1895.
    Decided July 2, 1895.

      Trespass by Olive B. Fisher against James Naysmith, the township of Grand Rapids, and Richard Pickett for the unauthorized grading of a street. Defendant Nay-smith was highway commissioner, defendant Pickett the contractor. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Smiley, Smith & Stevens, for appellants:
    The improvement having been made in good faith, and the value of plaintiff’s premises having been greatly enhanced thereby, she is entitled to nominal damages only. Stilson v. Gibbs, 53 Mich. 284; Porter v. Railroad Co., 33 Mo. 128; Luther v. Winnisimmet Co., 9 Cush. 171; Murphy v. Fond du Lac, 23 Wis. 365; Jewett v. Whitney, 43 Me. 242; Newman v. Railway Co., 118 N. Y. 618; Bohm v. Railway Co., 129 N. Y. 576; Railroad Co. v. Caldwell, 31 Cal. 367; Railroad Co. v. Armstrong, 46 Cal. 85; Nichols v. Bridgeport, 23 Conn. 189; Trinity College v. Hartford, 32 Conn. 452; Young v. Harrison, 17 Ga. 30; Jones v. Railroad Co., 30 Ga. 43; Railroad Co. v. Francis, 70 Ill. 238; Page v. Railway Co., Id. 324; Symonds v. Cincinnati, 14 Ohio, 147; Brown v. Same, Id. 541; Railroad Co. v. Ranch, 78 Pa. St. 454.

      C. H. Gleason (J. W. Champlin, of counsel), for appellee:
    To the point that plaintiff was entitled to her actual damages, regardless of any benefit that may have resulted to her remaining property in common with that of other abutting owners, counsel cited, in addition to the authorities referred to in the opinion, Allison v. Chandler, 11 Mich. 542; Northrup v. McGill, 27 Mich. 234; Dalton v. Laudahn, Id. 532; Bringard v. Stellwagen, 41 Mich. 57; Skeels v. Starrett, 57 Mich. 354; Walters v. Chamberlin, 65 Mich. 333; Fisher v. Dowling, 66 Mich. 372; Vanderlip v. Grand Rapids, 73 Mich. 522; Burtraw v. Clark, 103 Mich. 383; Bliss v. Ball, 99 Mass. 597; Francis v. Schoellkopf, 53 N. Y. 152; Haynes v. Thomas, 7 Ind. 38.
   McGrath, C. J.

In 1887, the center line of a highway called “East Street” separated the city of Grand Rapids and the township of the same name. Plaintiff resided in the township of Grand Rapids, and her premises had a frontage of 539 feet on East street. Under an act of the legislature passed in 1875, the city and township authorities let a contract for the grading of East'st-reet, in the course of which a cut was made in the street opposite plaintiffs premises, and a number of shade trees removed. Plaintiff brought trespass. The case was tried without a jury, and comes here upon exceptions to findings. The court found that—

“The defendants were trespassers, and must pay to plaintiff the actual damages she has sustained; and, as this is a case of the actual taking and destruction of private property without ‘due process of law,’ nothing can be deducted from the damages recoverable by the plaintiff for the benefits resulting to her remaining property, in common with that of others, from the improvement of the street. The damages to which the plaintiff is entitled are for
1. The destruction of 20 trees, at §25 each........$500 00
2. Damages by embankment.............-......... 50 00
3. Making new driveway......................... 30 00
4. Soil removed................................... 06
$580 06”

It is conceded that the proceedings under the statute were void. Defendants’ contention is that they acted in a public capacity, and in good faith; that plaintiff’s property was enhanced in value by the improvement; that she has, therefore, suffered no actual damage, and should have been awarded nominal damages only.

The plaintiff seeks to recover actual, rather than purely consequential, damages. Our own cases dispose of these contentions. In Cubit v. O’Dett, 51 Mich. 347, it was said that trespasses are not excused by good faith, although they may be aggravated by bad faith. In Clark v. Dasso, 34 Mich. 86, a highway commissioner had cut down certain trees within the limits of the highway. In Larned v. Briscoe, 62 Mich. 393, certain of the defendants were members of the board of public works, and others were contractors with the city for the work. The report of the board in favor of the change of grade was made to the common council, and the contract ordered, and after-wards approved. No vote was had upon the report, and the court held that the approval of the contract could nut be construed into an authority to change the grade. A cut was made opposite plaintiff’s premises, and the street had been paved. In Grand Rapids, etc., R. Co. v. Heisel, 47 Mich. 393, it was held that a wrong-doer could not cast any portion of an actual and appreciable loss on the injured party. In Isle Royale Mining Co. v. Hertin, 37 Mich. 332, plaintiff had, by mistake, cut certain timber upon defendant’s lands into cord wood, which defendant took and used. Plaintiff sought to recover the value of the labor expended upon it. It was held that he was not entitled to recover. The court say:

“It cannot be assumed, as a rule, that a man prefers his trees cut into cord wood rather than left standing, and, if his right to leave them uncut is interfered with, even by mistake, it is manifestly just that the consequences should fall upon the person committing the mistake.”

See, also, Harvey v. Railroad Co., 90 Ga. 66; Davis v. Railway Co., 87 Ga. 605; Marcy v. Fries, 18 Kan. 353; Gerrish v. Manufacturing Co., 10 Fost. (N. H.) 478.

It cannot be contended that the cut made in front of .plaintiff’s premises, or the destruction of her trees, was a benefit to her. All that is here claimed is that the improvement of the street throughout its extent benefited her remaining land in common with that of every other abutting owner. The cost and expense of such an improvement cannot be made a charge against plaintiff, or she be compelled to respond in an^ measure for benefits, except in pursuance of lawful methods to that end, and the cost and expense would be the limit of the charge. There was no attempt made to apportion that benefit. There is a class of cases which hold that, when the act constituting the trespass is in itself a benefit, nominal damages only can be awarded, but in those cases no tangible thing having an appreciable value was taken or removed from the land. In the New Hampshire case above cited the jury had been instructed that there was no sucli thing as an offset in actions of this kind, and that if defendants, by the unnatural use of the water, had injured the plaintiff’s lands, or killed his grass, plaintiff was entitled to their verdict, even though other portions of plaintiff’s lands were benefited, so that upon the whole the plaintiff would be more benefited than injured. The supreme court approved the instruction, and say: , '

“There is no set-off or recoupment of damages not founded on the undertaking or default of the party sought to be subjected to such adjustment, nor can he who has inflicted a wrong require the injured party to accept indemnity in any other manner than such as the law provides.”

Complaint is made that there was no finding that the trees possessed any intrinsic value separate from the land, and that the measure of damages when ornamental trees are destroyed is the difference in value of the realty. The court finds that plaintiff was damaged by the destruction of 20 trees at $25 each, $500. In Miller v. Wellman, 75 Mich. 353, it was held that the measure of damages would be the value of the timber standing upon the land, and the diminished value of the estate, if any, by reason of the removal. The testimony is not before us. It does not appear that the trees were purely ornamental, and had no value except as such; nor does it affirmatively appear that the figures given represent in whole or in part the diminished value of the land. In any event, the trespass and the improvement are not synonymous terms.

The judgment is affirmed.

The other Justices concurred.


text:
    FRANKLIN v. FREY.
    Intoxicating Liquors — Civil-Damage Law — Action on BondJoinder op Parties Defendant.
    Under 3 How. Stat. § 2283e3, being section 20 of the liquor law of 1887, giving to one injured by reason of the intoxication of another a right of action against any person or persons who by furnishing any liquors shall have contributed to the injury, and further providing that the principal and sureties to the bond mentioned in the act shall be liable severally and jointly with the person or persons so furnishing any such liquors, the principals and sureties upon the bonds of several liquor dealers may be joined in a single action.
    Error to Washtenaw; Kinne, J.
    Submitted June 6, 1895.
    Decided July 2, 1895.
    Case by Jennie Franklin against Henry Frey and others under the civil-damage act. From a judgment for -defendants on demurrer, plaintiff brings error.
    Reversed.

      F. J. Riggs and Lehman Bros., for appellant.

      G. W. Turnbull (A. J. Sawyer, of counsel), for appellees.
   Montgomery, J.

This is an action brought against two saloon-keepers and their bondsmen, jointly, for the recovery of damages resulting from the sale of liquor to the brother of the plaintiff, upon whom plaintiff had relied for support, resulting in the intoxication of the deceased, by means of which he became unconscious, and died from the effects of exposure induced by such intoxication. The case was disposed of by the court below on -demurrer, and the single question presented for our consideration is whether, under our statute, two different saloon-keepers, and the bondsmen of each, may be joined in one action.

The statute is section 2283e3, 3 How. Stat., and, so far hs material to this question, reads as follows:

“Every wife, child, parent, guardian, husband, or other person who shall be injured in person or property or means of support or otherwise by any intoxicated person, or by reason of the intoxication of any person, or by reason of the selling, giving, or furnishing any spirituous,, intoxicating, fermented, or malt liquors to any person, shall have a right of action in his or her own name against any person or persons who shall, by selling or giving any intoxicating or malt liquor, have caused or contributed to the intoxication of such person or persons, or who have caused or contributed to such injury, and the principal and sureties to the bond hereinbefore mentioned shall be liable severally and jointly with the person or persons so selling, giving,, or furnishing any spirituous, intoxicating, or malt liquors, as aforesaid.”

The succeeding section provides that the damages recoverable may be recovered in an action on the case before any court of competent jurisdiction.

We have held that under this section it is proper to join the bondsman with the principal. See Anthony v. Krey, 70 Mich. 629; Doty v. Postal, 87 Mich. 143. But the question of whether it is proper to join the bondsmen of two defendant dealers has never been determined by this court. The language of the statute, while not as plain as that adopted in some of the States, is very broad, and it provides that “the principal and sureties to the bond shall be liable severally and jointly with the person or persons so selling, giving, or furnishing any spirituous, intoxicating, or malt liquors, as aforesaid.” It is contended that the latter provision should be held to apply to sales made by persons in privity with the principal of the bond, — the clerks, servants, or agents mentioned in the statute; but we think it is open to the construction contended for by the plaintiff, namely, that the sureties are liable, jointly and severally, with any person or persons whose sales contribute to the injury in' part traceable to sales made by each.

The statute of Nebraska is not as broad as ours. Section 15 of chapter 50 of the Compiled Statutes of Nebraska provides: “Said damages and expenses may be recovered in any court of competent jurisdiction by any civil action on the bond named and required in section 6.” There is no express declaration that the parties shall be liable jointly or severally, but,there is the implication in section 18 that those who are responsible for or contribute to the injury shall be liable in this respect. The language of our statute is more clear and distinct, it providing that the action may be maintained “against any person or persons who shall, by selling or giving any intoxicating or malt liquor, have caused or contributed to the intoxication,” etc. Under the Nebraska statute it was held, in Wardell v. McConnell, 23 Neb. 152, that the principals and sureties on several bonds might be joined in a single action.

It is a general rule of the common law that all who are liable for the same tort may be joined, and while this rule does not, in the absence of statute, apply to those indirectly liable, as in the case of sureties on bonds, the statute is broad enough to modify the common-law rule in that regard. The rule is laid down as a general one, in Black on Intoxicating Liquor’s, that where several persons, by selling or furnishing liquor, contribute to an intoxication which results in actionable injuries under the civil-damage law, their responsibility is that, of joint tort-feasors. See Black, Intox. Liq. § 299.

Our conclusion is that the parties were properly joined in this action. The circuit judge was of the contrary opinion, and sustained the demurrer.

Judgment will be reversed, with costs,- and case remanded, with leave to defendants to plead under the rule.

The other Justices concurred.


author: McGrath,C. J.

text:
    ISAACS v. McLEAN.
    1. Trial — Objections—Competency of Witness.
    A general objection to testimony as incompetent is insufficient to raise the question of the competency of the witness.
    2. Opinion Evidence — Growing Crops.
    In trover for hay which had not been weighed at the time of conversion, but which had been cut from a given acreage, a witness who has shown himself competent to testify may be asked to state the average crop per acre for that season upon the premises in question.
    3. Trial-Instructions to Jury.
    The failure to instruct the jury in a civil case as to matters common to all cases is not, in general, reversible error. So held where no explicit instruction was given that the verdict must be based “ upon the testimony,” or that the amount and value of property involved must be determined “ from the evidence.”
    4. Trover — Sale on Void Execution — Damages.
    In trover for property seized and sold upon a void execution, the proceeds of the sale cannot be allowed in mitigation of damages upon defendant’s offer to apply the same upon his judgment. So held in a case where the execution, as well as the sheriff’s term of office, had expired at the time of the levy.
    Error to Osceola; McMahon, J.
    Submitted June 6, 1895.
    Decided July 2, 1895.
    Trover by John Isaacs against James H. McLean and James M. Eeed for property levied upon and sold on execution against plaintiff. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Charles A. Withey, for appellants.

      Smiley, Smith & Stevens, for appellee.
   McGrath,C. J.

It is conceded that the levy upon and sale of plaintiff’s property were wrongful. The property taken consisted in part of a pile of lumber and a stack of hay. A witness for plaintiff was asked what, in his opinion, was the amount of lumber in the pile. To this question counsel for defendants objected, saying, “I object to that, as incompetent.” Another witness was asked, “What, if you know, would be the average crop from that 40 acres there, from what you know of the land?” This was objected to “as incompetent and too indefinite.” íhe court overruled the objection, but that question was not answered. The question then asked was, “What was the average crop last summer on that 40 acres that you speak of, — of hay?” It is urged here that the competency of the witnesses to give estimates of quantity had not been established. It is evident, however, that in both instances the court regarded the objection as going to the character of the proof, rather than the competency of the witnesses. If it is desired to raise a question as to the competency of a witness, the objection should be framed accordingly. In each instance, however, the witness had shown a degree of competency to ' testify. It is not necessary to discuss the propriety of the ruling upon the question which was not answered. The ' hay had been cut from a given acreage. It had not been weighed. The witness was asked to estimate the quantity of hay in that acreage for that season before harvest. There was no error in the ruling.

It is next urged that the court failed to instruct the jury that their verdict must be based upon the testimony given. Defendants’ counsel, although making other requests, did not ask such a charge. The circumstances were not such as to suggest to either court or counsel for defendants that such an instruction should be given. The record contains nothing from which an inference of prejudice can be drawn. The jurors, at the threshold of the trial, had been sworn to well and truly try, and a true verdict give, according to law and the evidence given in open court.

The court instructed the jury that they were to determine the amount of property taken, and its fair market value, and the only criticism is that the words “from the evidence,''"' or “under the evidence,” were not used in that connection. It might with equal propriety be urged that no instruction was given as to the preponderance or burden of proof, or that the jury must be governed by the law as given by the court. It cannot be said that in a civil case the omission to instruct as to matters common to all cases is reversible error.

The property had been taken by an ex-sheriff several months after his term as sheriff had passed, and a year after the writ itself had expired. Defendants offered, in open court, to apply the proceeds of the sale upon the judgment upon which the execution issued, and asked to have the amount so offered allowed in mitigation of damages. The point is ruled by Northrup v. McGill, 27 Mich. 234; Dalton v. Laudahn, Id. 529 ; Bringard v. Stellwagen, 41 Mich. 54. In Stilson v. Gibbs, 40 Mich. 42, there was a valid execution.

The judgment is affirmed.

The other Justices concurred.


text:
    BARNUM v. ANDREWS.
    Practice — Trial Before Court Without a Jury — Record on Appeal.
    Where, in a case tried before the court without a jury, no findings are requested or made, and no exceptions taken to the conduct of the proceedings, there is nothing for review by the Supreme Court.
    Error to Huron; Beach, J.
    Submitted June 6, 1895.
    Decided July 2, 1895.

      Debt by Anna M. Barnum, for the use of John F. -Murphy, against John Andrews and others, on an appeal bond. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      A. B. Avery, for appellants.

      William T. Bope (Elridge F. Bacon, of counsel), for appellee.
   McGrath, C. J.

This case was tried before the court without a jury. No findings were requested or made. The assignments of error are:

“1. On the evidence given, the judgment should have been rendered for the defendants.
“2. On the evidence, the judgment should have been rendered in favor of the defendant Clark.
“3. The evidence did not warrant the judgment against the defendants.
“4. The court erred in refusing to permit the cause to be reopened and further evidence taken before the rendering of judgment.”

The case is ruled by Haines v. Saviers, 93 Mich. 440, and cases cited; Township of Gumming v. Schick, 94 Mich. 222.

Some time after the cause had been submitted to the court, but before judgment, defendants asked leave to introduce the testimony of one of the defendants, who was not present at the trial, to contradict the testimony of one of the witnesses for plaintiff, but the court refused to allow the case to be reopened. No exception was taken to this determination, and we are not advised as to whether the court regarded the testimony as immaterial, or whether the determination was upon other grounds.

The judgment is affirmed.

The other Justices concurred.