text:
      In re LEAN’S ESTATE. E. B. CADWELL & CO. v. LEAN’S ESTATE.
    1. Contracts — Brokers—Gambling Transactions — Illegality op Sale — Statutes.
    The purchase, through a brokerage firm, on Chicago exchange, by correspondents of such brokers, of wheat later sold at a loss, is not void as a gaming transaction, under 3 Comp. Laws, § 11373, unless the party endeavoring to enforce the contract intended that no delivery or receipt of, or payment for, the wheat should take place.
    2. Same — Estates op Decedents.
    And, as against the estate of a deceased person who gave his note for the balance due on several such transactions, the testimony of claimants that they actually intended to buy and receive the wheat, uncontradicted and unimpeached, was conclusive of their right to recover.

      Error to Wayne; Murphy, J.
    Submitted January 19, 1912.
    (Docket No. 123.)
    Decided March 12, 1912.
    E. B. Cadwell and Howard Brooke, copartners as E. B. Cadwell & Company, presented a claim against the estate of Robert C. Lean, deceased, for certain moneys due on a promissory note of decedent. From a disallowance of the claim by the commissioners on claims, claimants appealed to the circuit court. Judgment for defendant. Claimants bring error.
    Reversed.

      Fred A. Behr, Chas. F. Delbridge, and Orla B. Taylor, for appellant.

      Bowen, Douglas, Eaman & Barbour, for appellee.
    The claimants are a partnership engaged in the general brokerage business in the city of Detroit. During the year 1908, they made arrangements with a Chicago broker who had a seat on the Chicago board of trade, by means of which they were enabled to transact a brokerage business in grain. While this arrangement was in force, Robert C. Lean, against whose estate claim is now made, retained them as his brokers to buy and sell wheat for him on the Chicago board of trade. To secure his brokers, Lean gave to them a promissory note in the sum of $300, indorsed by a person satisfactory to them. Having taken this security, the brokers accepted and executed Lean’s orders. The method of doing business was as follows : Lean would order his brokers to buy (or sell) for his account 5,000 bushels of wheat. This order was by the brokers transmitted to their Chicago broker, who executed it upon the floor of the board of trade and sent a confirmation of the execution of the order to Lean’s Detroit brokers. Later Lean would order his brokers to sell (or buy) an equal amount of wheat, which order was executed in like manner. The two transactions would result in canceling each other, so far as the amount of wheat was concerned. But for the execution of these two orders the Chicago broker charged Cadwell & Co., $6.25, which they in turn charged to Lean. So that if Lean bought and sold at the same figure he would still lose $6.25 on each 5,000 bushels bought and sold. If he was able to sell wheat at one-eighth cent per bushel higher than the price at which he bought, he would come out even; if at a greater advance, he would make money; but if at a less advance, he would lose. During the month of June, and up to July 6, 1908, Lean continued to trade through his brokers in the manner above described. His operations then ceased, and it was then found that he was indebted to Cadwell & Co. in the amount of $313.64. He thereupon renewed the initial note given by him and included therein the total amount of his indebtedness to them. Lean died August 17, 1909, and this note was duly presented by Cadwell & Co. to the commissioners on claims for his estate. An appeal was taken from their decision to the circuit court, where a trial was had which resulted in a disallowance of the claim. Claimants have now removed the case to this court for review.
   Brooke, J.

(after stating the facts). The defense set up is want of consideration; the claim being that the note was given in consideration of a gambling debt. The defendant estate offered no testimony. The claimants, through one of the partners, testified that they acted as agents and brokers for Lean, and that each order of his, whether for buying or selling, was actually executed through their broker upon the floor of the Chicago board of trade, and that actual delivery of the grain bought or sold was contemplated by themselves and their agents. That the legal obligation to so receive or deliver followed each transaction is not open to question. There is no testimony in this record to indicate that Lean himself regarded these transactions as gambling contracts; and the testimony that the claimants and their Chicago agents did not so regard them is conclusive. To warrant the jury in reaching the conclusion which they did reach, they must have found that, when the contracts were made, it was the intention of both Lean and the claimants to settle their differences upon the basis of the difference in the contract price and the market price at the time of settlement. This record is absolutely barren of evidence which would sustain such a finding. The mere fact that, after ordering his brokers to buy 5,000 bushels of wheat, Lean at a later date ordered them to sell a like amount, and repeated this operation from time to time, has no legitimate bearing upon the legal character of the contracts. Such contracts are made hourly upon the floor of every stock exchange in the country.

Section 11373, 3 Comp. Laws, makes the intention of the parties entering into the contract the controlling factor, and contracts are by that section made void only where there is no intention of receiving and paying for the property bought, or of delivering the property sold. This statement includes both parties to the contract, and the absence of intention on one side only, even if proven (which it was not in the case at bar), will not serve to avoid the contract. Section 11374, 3 Comp. Laws, defines the duties of brokers, and the record discloses that claimants carefully complied with all statutory requirements.

A clearer view may, perhaps, be obtained of the matter here in issue if we suppose that, instead of losing, Lean’s operations through his brokers had shown a profit. Suppose Lean or his estate had brought suit for such profits, and the brokers had set up the defense that the contracts were of a gambling nature, and therefore void. Lean’s answer to such a position would unquestionably be:

“It makes no difference to me what your intentions were in the premises. I gave you orders to make actual sales and purchases, which you have made for my account, and the resulting profits do not flow from a gambling transaction, but from the exercise by me of a wise business judgment in a series of actual purchases and sales.”

We have lately held ( Goodspeed v. Smith, 162 Mich. 641 [127 N. W. 813]) that even the keeper of a bucket shop, who operates in direct violation of law, cannot set up in his defense that his contracts are gambling contracts, where the other party dealt with him in good faith and with the intention of actually receiving and paying for the stocks purchased.

The only meritorious question presented by the various assignments of error is whether the claimants were entitled to a directed verdict in their favor upon the evidence as it stands in this record.

Our views, as indicated above, find abundant support in the following authorities: Gregory v. Wendell, 39 Mich. 337 (33 Am. Rep. 390); Id., 40 Mich. 432, and cases there cited; Chicago Board of Trade v. Grain & Stock Co., 198 U. S. 236 (25 Sup. Ct. 637); Ward v. Vosburgh (C. C.), 31 Fed. 12; Ponder v. Cotton Co., 100 Fed. 373, 40 C. C. A. 416; Chicago Board of Trade v. L. A. Kinsey Co., 130 Fed. 507, 64 C. C. A. 669 (69 L. R. A. 59); Cleage v. Laidley, 149 Fed. 346, 79 C. C. A. 284; Barnes v. Smith, 159 Mass. 344 (34 N. E. 403).

Claimants were entitled to a directed verdict for the amount of the note and interest.

The judgment is reversed, and a new trial ordered.

Moore, C. J., and Steers, McAlvay, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    ABBOTT VOTING MACHINE CO. v. TOWNSHIP OF HANDY.
    1. Municipal Corporations — Townships—Voting Machines— Contracts.
    Plaintiff could not recover upon a oontract with defendant township for the purchase of a voting machine without showing a compliance with 1 Comp. Laws, § 3805, requiring the township to hold a mock election to test the machine before contracting for its purchase.
    3. Same — Pleading—Contracts—Denial of Execution.
    The defensa was available in the action on defendant’s contract in writing, though no affidavit denying its execution was filed.
    Error to Livingston; Miner, J.
    Submitted January 24, 1912.
    (Docket No. 42.)
    Decided March 12, 1912.
    Assumpsit by the Abbott Voting Machine Company against the township of Handy for the price of a voting machine. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      E. A. & L. E. Stowe and Fellows & Chandler, for appellant.

      Louis E. Howlett and Arthur E. Cole, for appellee.
   Moore, C. J.

This suit was brought to recover for the value of a voting machine. A verdict was directed in favor of the defendant. The case is here by writ of error.

We quote sufficient from the brief of appellant to indicate the questions involved:

“ On the 22d day of August, 1906, the defendant, township of Handy, and the village of Fowlerville, ordered of the plaintiff a voting machine, to be shipped prior to the succeeding fall election. The township was to pay two-thirds of the purchase price and the village one-third. Neither municipality was to be bound by the order, unless the machine complied with its terms. * * * Such trial of such machines was to be had at the election to be held November 6 th following. The order is as follows:
“ ‘ Fowlerville, Mich., Aug. 22, 1906.
“‘The Abbott Voting Machine Company,
“‘Hudson, Michigan.
‘ ‘ ‘ Gentlemen:
“‘Please enter our order for one Abbott voting maohine to be'' delivered on or before the 25th day of October, 1906, and paid for by the township of Handy and the village of Fowlerville as follows: Payable on or before March 1, 1907, for the sum of three hundred and thirty-two and fifty one-hundredths dollars. Upon the following conditions and not otherwise: That the Abbott Voting Machine Company guarantee each Abbott voting maohine to be of perfect material and workmanship; that each maohine will at all elections keep an absolutely correct record of a vote from each voter voting at the election, and that the number of votes as to each office being voted for shall exactly equal the number of voters as shown by the total register on the machine to have voted; that said company will keep said maohine in repair and replace or repair any part or parts which may require repairing or replacing and furnish any improvements that the company makes on such machines for a period of three years from this date without charge to the township of Handy or the village of Fowlerville. If the machine complies with the above-mentioned conditions at the election to be held November 6, 1906, the board of the township of Handy and the common council of Fowlerville hereby agree to issue and deliver to the said Abbott Voting Machine Company their order on the treasurer of said township and the treasurer of said village for the sum of three hundred and fifty dollars for each machine and payable at the times above specified, less five per cent, discount, the said village to issue their order on said village treasurer for the sum of one hundred and ten and eighty-three hundredths dollars and the said township of Handy to issue their order on the said township treasurer for the sum of two hundred twenty one and sixty-seven hundredths dollars
[Signed]. “‘The Township Board op Handy,
“ ‘By Edward B. Millett, Supervisor.
“‘ William H Peek.
“ ‘ A. J. Wickham, Justice of the Peace.
“ ‘Norman Hughes, Justice of the Peace.
“ ‘S. S. Abbott, President of the Village.
“ ‘A. E. Benjamin, Clerk.
“ ‘The above order is hereby accepted, subject to all of its conditions.
“ ‘The Abbott Voting Machine Company,
“‘By Will O’Riley.’

“ On the back of which is indorsed:

'“The Abbott Voting Machine Company agrees to furnish one dummy or practice machine and one competent instructor to explain the workings of the machine at the next November election. This indorsement is hereby made a part of the contract on the other side of this sheet.’
“This order was executed pursuant to unanimous action of the township board and village council. Pursuant to this order, the plaintiff shipped to the defendant the machine and dummy machine about the middle of October, and sent a Mr. Liby, a competent workman from the factory, to assist at and before the election and act as an instructor, pursuant to the terms of the contract. The bill of lading was sent to the clerk, and the machine was taken out and set up in a store building before Mr. Liby arrived. He was there five days, instructing the board and exhibiting the machine to the voters, a great many of whom voted upon it. The machine contained enough slides to accommodate the ticket, and to spare, if the ticket was arranged according to its arrangement on the Australian ballot. The officers of defendant seemed to want to arrange the ticket in some way other than the ordinary, usual, and lawful way, and complained that there were not enough slides so to do, although admitting there were sufficient slides if the ticket was arranged in its usual order. The machine was not used at this election, but was boxed up by Liby and left where defendant had set it. About the middle of November, the township notified plaintiff that the voting machine was there at plaintiff’s risk. It has never been returned to plaintiff, and, so far as the record shows, is still at Fowlerville. This action was brought to recover of defendant the amount it had agreed to pay as its share. The execution of the contract was not denied under oath, but a plea of the general issue was filed with" various defenses alleged in a notice of general terms. There were: (1) Implied warranty of sufficient capacity; (2) implied warranty that machine would comply with the requirements of the law; (3) that machine would not keep correct account ; (4) that machine ‘ did not conform to the conditions of the contract existing between the said plaintiff and the said defendant,’ but not stating wherein; (5) that parties who signed contract had no authority, but not stating where; (6) that contract was procured by fraud, such alleged fraud consisting of representations that machine could be used at elections and enable voters to vote, and would enable electors to cast their votes during the hours when polls were to be open, and that it was of sufficient capacity; (7) set-off by way of damages for fraud alleged in t; (8) agreed rescission. All of these allegations are in general terms, and the notice lacks any degree of certainty in any particular. The facts hereinbefore stated as making up plaintiff’s case were proven upon the trial, and plaintiff offered to show that the defendant had already raised a tax to buy a voting machine with; also that the machines manufactured by the plaintiff were in general use in the State. Defendant proved, over objection, an attempted rescission because of a want of capacity to carry the ticket.”

After the proofs were all in, defendant moved for a directed verdict for several reasons, one of which was that because of section 8805, 1 Comp. Laws, it was the duty of defendant to hold a mock election before entering into this contract. The plaintiff asked for a directed verdict against defendant for the defendant’s share of the purchase price of the machine. The circuit judge directed a verdict for the defendant, on the ground that a mock election should have been held. The section above cited is as follows:

“ Before such township board, council or common council shall order, contract for, purchase, agree to purchase or order the use of any voting machine, they shall first test such machine by using the same under conditions, similar as near as may be to those of an actual election. Said township board, village or city council shall select three or more electors of said township, village or city, who are not members of said township board or city or village council, who shall act as inspectors and clerks of election, and any resident elector of said township, village or city, shall be entitled to vote upon and with said machine until at least one hundred votes in all shall have been cast by not less than twenty different persons and, if after testing said machine, as above stated, it shall prove satisfactory to said board, or council or common council, and fill all the requirements of section three of this act, they may then or thereafter purchase and order the use of said machine at all elections held thereafter in said township, village or city.”

On the part of the plaintiff, it is urged that, while the statute provided that the township shall not be bound, unless at a mock election the machine complies with the provisions of the law, the contract provides that the township shall not be bound, unless at an actual election the machine complies with the law. Counsel insist:

“First. That the grounds upon which the court directed a verdict were in no way set up in defendant’s notice, and that, therefore, such defense was unavailable; and, second, that the provision as to a mock election is purely directory, and, inasmuch as the contract provided for a thorough test in an actual election, all the purposes of a mock election and the statute with reference to the same were fully served.”

Many questions are argued which we deem it unnecessary to discuss. The authority to buy and use voting machines is derived from the statute. In view of the situation disclosed by the record, it is unnecessary to decide whether the statute is directory simply. It appears that when the contract was signed no machine was before the board. No mock election had been held, and no election, mock or actual, has yet been held, where the machine for which suit is brought was used. Under these circumstances, we think the trial court very properly directed a verdict in favor of defendant.

Judgment is affirmed.

McAlvay, Brooke, Stone, and Ostrander, JJ., concurred with Moore, O. J. Steere and Blair, JJ., concurred in the result. Bird, J., did not sit.


text:
    STATE LIFE INSURANCE CO. v. HARRAH.
    Insurance — Bills and Notes — Consideration.
    Defendant suffered his policy of insurance to lapse. Plaintiff’s agent advised him to change the form of policy and give a note for the premium, payable in six months, if plaintiff would consent to his reinstatement on such terms. He made a new application, which was forwarded to the company, by which a new policy was issued. Plaintiff claimed to have mailed the policy to defendant, but it was never received by defendant, as he testified. No competent evidence appeared that the policy was mailed with postage prepaid. Plaintiff, on the trial of the action on the premium note, waived submitting to the jury the issue whether or not defendant ever received his policy. Held, that verdict for defendant was correctly instructed on the ground of failure of consideration.
    Error to Wayne; Mandell, J.
    Submitted January 24, 1912.
    (Docket No. 105.)
    Decided March 12, 1912.
    Assumpsit by the State Life Insurance Company against Charles W. Harrah on a note for insurance premiums. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Jackson, Millis, Culver & Griffin, for appellant.

      E. S. Clarkson, for appellee.
   Moore, C. J.

Suit was commenced in the cause in the justice’s court for the city of Detroit upon the 1st day of June, A. D. 1909. The pleadings were oral; plaintiff declaring in assumpsit on all the common counts and specially upon a promissory note; the defendant pleading the general issue and giving notice of failure of consideration. The note sued upon was in words and figures as follows:

“$196.50. Detroit, Mich., Dec. 31/07.
“Six months after date, I promise to pay to the State Life Insurance Company, at its home office, for value received, the sum of one hundred and ninety-six and 50/100 dollars (with interest at six per cent, per annum from date with attorney’s fees, and waiving relief from valuation and appraisement laws), the same being the amount due of the annual premium due and payable the 31st day of December, 1907, on policy No. 157324= of said company.
“I understand and hereby agree that neither this note, nor any extension thereof, is given or accepted as a payment of said premium. And I agree that the non-payment of this note, or any extension thereof at maturity, shall ipso facto lapse said policy, and there will be due the proportionate part of the face of this note, with interest, that the time from the date to the maturity of this note, or any extension thereof bears to the whole time covered by said premium. I also agree that upon nonpayment of this note or any extension thereof, if said policy should have any reserve value, the company may charge the proportionate part of this note, or any extension thereof, that may be due as above provided, against such reserve value, and any extended insurance value it may have shall accordingly be reduced.
“Ext. to July 30, ’08.
“Charles W. Harrah.”

Upon the close of all the testimony, each party asked for a directed verdict. The circuit judge charged the jury as follows:

“This is an action brought upon a premium note — insurance note. It appears from the undisputed facts in the case that at one time Chas. W. Harrah was a policy holder in the plaintiff insurance company, and that the policy had lapsed, and that he was practically suspended. He was approached and asked and urged by an agent of the company to seek a different kind of insurance, and with the application he sent a note, and that note is the note in suit here. It appears that he never received any word from the company as to whether his application for reinstatement had been accepted or not. He never received from the company the policy that he sought. They had the note, and he had no word from them. Ordinarily in contracts when one makes a proposition, in order to make a binding bargain or contract, there must be an acceptance. The acceptance must be communicated to the person who makes the offer. In this case, Mr. Harrah, the defendant, was out of the company, and he did not know or had no means of knowing, unless receiving word from the company, whether he would be reinstated or not. He sought reinstatement, and sought a substitution of the new policy for the old one. Never having received word from the company whether the reinstatement was granted, and never having received the policy, he received no consideration for his note. The note, being without consideration, is void and not collectible , and therefore this action has failed by reason of no consideration for the note being given. It is not necessary to go into the question of what words were used between Mr. Harrah and the agent of the company who sought to obtain this application. It is true parol evidence will not be received to vary, alter, or amend the written terms of a contract; but the contract is not what we have here. We have here the proposition suggested on the part of Mr. Harrah with the company, and until that was accepted there was not a valid existing contract between them. That being so, there was no consideration.”

A verdict and judgment were rendered in accordance with the charge. The case is brought here by writ of error.

It is insisted upon the part of the plaintiff that, after it received the application for reinstatement and the report of the medical examiner, a policy was issued, which became binding at once, whether it was delivered or not, and that this furnished an adequate consideration for the note. This claim does not meet the situation. The defendant had been a member of the plaintiff company. His policy had become lapsed, so it was void. It was his claim that a special agent solicited that he again become a member, and assured him that he did not know whether the company would reinstate defendant, but that if they would issue a policy to him he could use it to obtain loans. The new application, asking, as it did, for a change in the policy, made it necessary to write a new policy. We quote from the testimony:

“He offered to take my note for a new policy, and agreed that I should have six months’ time on it, and three months on half of it when' the note came due. That arrangement was made because I told him I did not find it convenient to pay the money. He took my policy and said he would return it to the company and find out whether it would be reinstated, and I gave him the note. I never heard another word from the company until the note came due, not another word.
“Q. State, during the conversation, whether anything was said about the policy being delivered for the note; whether you were to have the policy for the note ?
“A. I certainly was to have the policy. He said if I were to be reinstated a new policy would be sent me; but it was not.”

He further testified that after he was notified that his note was not paid, and that payment was desired, that he refused to pay it until a policy was delivered to him; that he informed the agent that he had not received a policy, and that he was assured the agent would write the company; and that no policy was ever delivered to him or tendered to him. This testimony was not contradicted.

On the part of the plaintiff, it is said (we quote from the brief):

“The learned judge of the Wayne circuit court took the view that defendant’s application for reinstatement was an offer to enter into a contract with plaintiff which must not only be accepted, but the acceptance must be communicated to the defendant. The learned judge apparently ignores the fact that the testimony shows indisputably that plaintiff did communicate its acceptance of defendant’s application for reinstatement by depositing the reissued policy in the United States mail, together with the letter of transmittal, postage prepaid, and addressed to defendant at his proper address in Detroit. So that if the court took the correct view of the character of the transaction, there was a complete and binding contract from the moment the acceptance was mailed; and there was therefore ample consideration for defendant’s note.”

One trouble with this contention is that there is no competent testimony of the actual mailing of the policy, with sufficient postage paid thereon, to the defendant. He swears positively that the policy was not received by him. The trial judge inquired of counsel for the plaintiff if they desired to submit that question to the jury, and they replied, “No.” Upon the record as made, we think a right disposition was made of the case.

Judgment is affirmed.

Steers, McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    SHARRAR v. KEMPSHELL.
    1. Mortgages — Deed Given as Security — Cancellation of Instruments — Lien—Condition Subsequent — Conveyancing.
    Complainant and her deceased husband conveyed, by deed absolute in form, eighty acres of land to her son and his wife, taking back a separate contract for support of complainant and her husband, during their lives, and also transferring certain personal property to said grantees. Complainant’s husband died. Subsequently the wife deserted the son, who obtained a divorce, remarried, and several years afterwards died, leaving defendant, his second wife, and several children in possession of the premises. By the terms of said contract for support it was agreed that the son and wife should pay a mortgage of §300 outstanding upon the premises, but after his death it remained unpaid, and the son’s widow procured an assignment thereof to a third party, who, at her instance, commenced foreclosure proceedings. Before sale complainant tendered the amount due and attempted to secure an assignment to her, which was refused by the assignee. Averring the failure of said widow to provide complainant with the stipulated support, complainant instituted suit to be subrogated to the rights of the assignee of the mortgage, to redeem from the sale, and for other relief. Held, that a decree setting aside the deed to complainant’s son and first wife for failure of consideration, and decreeing that defendant, who had procured a transfer of certain personal property from the son, and had the use of the farm for several years, should have a lien for the value of improvements made on the farm for $200, payable after complainant’s death, was justified.
    2. Same.
    Nor was it erroneous to provide that an outstanding mortgage executed in place of the original mortgage should constitute a first lien on the premises.

      B. Same.
    The court rightly refused to award any sum to the heirs of complainant’s son for improvements made while the property was held by the entirety.
    4. Same — Prayer.
    And the relief was warranted by the prayer of complainant’s bill.
    Appeal from Isabella; Dodds, J.
    Submitted January 23, 1912.
    (Docket No. 144.)
    Decided March 12, 1912.
    Bill by Dorothy Sharrar against Hattie Kempshell, O. 5. Wood, Mary Draper, and others, for the redemption of a mortgage and other relief. From a decree for complainant, defendants Mary Draper, Bernice Draper, and Agnes Draper appeal.
    Affirmed.

      Charles T. Bussell and F. M. Burwash, for complainant.

      W. D. Fast, for defendants.
   Moore, C. J.

Stripped of its verbiage, the bill of complaint is in substance as follows: That on the 26th day of November, 1888, Gottfred Sharrer and Betsey M. Sharrer, his wife, were the owners of 80 acres of land in Isabella county upon which they resided. That on or about the 26th of November, 1888, said Gottfred Sharrer and Betsey M. Sharrer, his wife, became indebted to Charles Withey in the sum of $300, and made a mortgage to him on said land for that amount, with interest, which mortgage was in the usual form, and was recorded in the office of the register of deeds for the said county. That before November 26, 1894, said mortgage was sold to the Ann Arbor Savings Bank.

“ That on or about the 13th day of October Gottfred Sharrer and your oratrix, who was then his lawful wife, said former wife, Betsey M., having theretofore died, made and delivered to Charles E. Draper and Hattie Draper, his wife, a deed of conveyance absolute in form.”

That although said deed is absolute in form, and purports to convey the land in fee for the consideration of $1, and the assuming by the said second parties of the Withey mortgage—

“Yet in truth and in fact, at the time of the execution and delivery thereof, it was expressly understood and agreed by and between the parties thereto that the real consideration for such conveyance, and such conveyance was upon condition that the parties of the second part should assume and pay said mortgage therein referred to, and should also provide said parties of the second part with a comfortable living for and during the term of their, natural lives, and that of the survivor of them, and that' such agreement to provide for said second parties, a ...comfortable living was intended to be expressed by the terms of a certain written instrument known as a 'life lease,’ among the said parties, which was then and there executed by them contemporaneously with said deed and as part of the same transaction.”

That, notwithstanding the making of said deed and life lease, the parties thereto did not enter into the execution thereof until after the making of a contract hereinafter mentioned. That thereafter, and on or about the 18th day of March, A. D. 1897, said parties, Gottfred Sharrer and your oratrix, Dorothy, his wife, and Charles E. Draper and Hattie Draper, his wife, entered into a new agreement in writing which as to said real estate property became a substitute for the said life lease, and said deed of conveyance from said Gottfred and your oratrix to said Charles E. and Hattie Draper. This agreement is then set out in extenso.

The bill further avers:

“ That just before said contract last mentioned was entered into said Gottfred Sharrer had become very sick, and both he and your oratrix being then advanced in years, and said Gottfred expecting to die, and being anxious to provide more certainly and effectually for the support and maintenance of your oratrix, the personal property in said agreement mentioned was included therein. That said Charles E. Draper was the son of your oratrix by a former marriage. That between him and your oratrix there existed then and at all times theretofore the utmost good will, and your oratrix had great confidence in and affection for said Charles. That said Gottfred Sharrer and your oratrix in entering into said contract and agreement had in mind the mutual affection and confidence existing between your oratrix and said Charles E., and were desirous of securing to themselves during their lives and the life of the survivor of them the maintenance and support of each of them in a comfortable manner, and that it was understood and agreed by all parties to said deed of conveyance to said Charles E. and Hattie, said life lease, and said subsequent contract that such support and maintenance was the principal and moving consideration for such deed of conveyance, and that said deed of conveyance of the land and the conveyance of the personal property referred to in the contract last mentioned should be, and was, on condition of such comfortable maintenance and support being furnished to said Gottfred and your oratrix. * * * That said Gottfred Sharrer died on or about the 6th day of April, A. D. 1897, leaving him surviving your oratrix, his widow. That no child or children had ever been born to said Gottfred, and that he left him surviving neither parents nor brother nor sister, and that your oratrix is informed and believes that no kin survive said Gottfred. That the personal property referred to in the contract last mentioned was substantially as follows, to wit: Two horses, worth about $200; harness and wagon, worth about $50; plows, harrows, and cultivators, worth about $50; three cows, worth about $75; some crops consisting of corn, oats, and potatoes which had been grown on said land. That said Charles E. Draper and Hattie, his wife, did not then have any horses, nor farming implements other than those given to them by said contract, nor means of procuring such with which to work said farm and carry out the provisions for support therein provided. And your oratrix avers on information and belief that the mortgage of $300 heretofore mentioned was made to raise money to pay for the team of horses turned over by said contract to said Charles E. and Hattie Draper. * * * That after March 18, 1897, and prior to November 3, 1902, said Hattie Draper deserted said Charles E. Draper, and that on the day last mentioned a decree of divorce was entered by which decree the marriage between the said complainant Charles E. Draper and Hattie Draper was dissolved. That said Charles E. Draper continued to reside on the premises, and about the 29th of November, 1902, married Mary Miner, defendant. That Mary Miner at the time of said marriage was a widow and had a family of six children, all of whom continued to live with her and Charles E. Draper to be supported upon the said premises and the proceeds thereof. * * * That Hattie Draper departed from the State of Michigan and has not returned thereto, and has married a man named Kemp-shell, with whom she now resides in the State of Washington. That Charles E. Draper died intestate April, 1907. That at the time of the death of Charles E. Draper complainant was living in the log house on the farm furnished with maintenance by Charles E. Draper, though not entirely as provided for by the contract. That Mary Draper has continued to live on said premises in the frame farmhouse thereon, and has farmed the same and enjoyed the products and the fruits thereof, but wholly disregarding the rights of your oratrix in said premises, and desiring and intending to deprive your oratrix of the support and maintenance to which she was justly entitled upon and from said premises, has refused to permit your oratrix to remain in the log farmhouse thereon in which she resided until the death of said Charles E. Draper, and has driven her therefrom, and has entirely deprived her of any and all of the proceeds thereof. * * * That said Hattie Kempshell, formerly Hattie Draper, has ever since the death of said Charles E. Draper resided in the State of Washington, and has not in any way carried out the terms of the agreement entered into by her and said Charles E. Draper for the maintenance of your oratrix. * * * That Mary Draper, intending to deprive your oratrix of her just support from said premises, has, as your oratrix is informed and believes, procured the Withey mortgage to be assigned to one O. S. Wood, who has caused it to be foreclosed and said premises to be sold to him, for the sum of $375.49 or thereabouts. * * * That after the assignment of said mortgage to said Wood, and before said foreclosure sale, your oratrix by her agent attempted to secure from said Wood an assignment of said mortgage and offered to pay the amount due thereon, but that said Wood acting, as your oratrix is informed and believes, for and in collusion with Mary Draper, refused to sell or assign said mortgage to your oratrix, but proceeded to foreclose it with the intention of getting the title to said premises and depriving the complainant of her just rights therein. That complainant offers to pay to O. S. Wood the amount lawfully required for the redemption of said premises, and brings the money necessary for that purpose into court here, and offers to pay the same to the said O. S. Wood, either by way of redemption or for an assignment of said sheriff’s deed and the conveyance to your oratrix of the premises therein described. That by reason of the premises complainant is entitled to redeem from said foreclosure sale and to be subrogated to the rights of the purchaser at said sale, and to have the support provided for in the contract set up in this bill in paragraph eight, and to be decreed proper security for the furnishing of said support in the future, and that in default of such security she be decreed a conveyance to her of said property, or that a decree be made which shall operate as a conveyance thereof to her. That complainant is entitled to have said personal property or the proceeds thereof which may be in the possession of any of the parties hereto decreed to her for the purpose of securing to her said support and maintenance.”

The prayer of the bill is:

“(1) That it may be decreed that your oratrix is entitled to redeem from the said foreclosure sales on payment of the amount due thereon, and to be subrogated to the rights of the holder of said sheriff’s deeds in said real estate. * * *
“(5) That said defendant O. S. Wood may be enjoined and restrained from selling, conveying, incumbering, or otherwise disposing of said real estate, except to your oratrix.
“(6) And that your oratrix have leave to record such decree in the office of the Register of Deeds in and for the county of Isabella, aforesaid.
“(7) And that your oratrix have such further or other relief as shall be agreeable to equity and good conscience.”

The necessary pleadings were filed to put the case at issue. It was tried in open court, and the judge rendered a decree, the material parts of which are as follows:

“ This cause having been brought on to be heard, * * * that the deed be set aside because its provisions were not carried out, and the court also having found from the testimony in said cause that Dorothy Sharrer is the only heir to said Gottfred Sharrer so far as the parties to this suit are concerned, takes said land by inheritance, and, so far as the parties to this suit are concerned, is the owner thereof, and the court also having found and determined that Mary Draper is entitled to $200 for improvements put upon said land, subject, however, to the rights of Dorothy Sharrer and the use of said premises during her lifetime, and the court also having found and determined that the rights of said Dorothy Sharrer and said Mary Draper are subject to the mortgage given by Hattie Kempshell to Fred Russell, which mortgage was given for the purpose of redeeming from a mortgage given by Gottfred Sharrer and wife prior to the said alleged conveyance to Charles Draper and his wife, shall take precedence over all other rights and claims of the parties hereto. * * * The said mortgage to said Fred Russell shall take precedence over all claims or rights of the parties hereto, and constitute a prior lien upon the said land to all said rights. That the said deed from Gottfred Sharrer and Dorothy Sharrer, his wife, to Charles Draper and Hattie Draper, now Hattie Kempshell, shall be canceled, set aside, and held for naught. That, so far as the rights of the parties in this case are concerned in said land, said Dorothy Sharrer is held, determined, and decreed to be the only heir of the said Gottfred Sharrer, and to inherit the Baid land subject to the said mortgage. * * * That said Mary Draper shall receive the sum of $200, which $200 shall not be payable until after the death of said Dorothy Sharrer, but shall constitute a lien upon said land subject to the said mortgage to said Fred Russell, and subject also to the use of said premises by said Dorothy Sharrer during her lifetime. That, should said Dorothy Sharrer sell the above-described real estate, said $200 shall be so invested that the principal shall be secured to said Mary Draper in a manner so as to be paid to her after the death of said Dorothy Sharrer.”

The appellants say the decree is wrong for the following reasons:

“(1) The court erred in determining the value of the improvements made by Mary Draper and fixing the amount at $200.
“(2) The court erred in postponing the payment of the $200 to Mary Draper until after the death of the complainant.
“(3) The court erred in decreeing that one Fred Russell has a mortgage on the land in question, which is a valid lien thereon, and takes precedence over all claims or rights of the parties hereto, and a prior lien to the one given to Mary Draper for $200.
“(4) The court erred in refusing to award any sum of money to the defendants Bernice and Agnes Draper, heirs of the said Charles Draper, for the value of the improvements made on the said land by the said Charles Draper and Mary Draper from the time of his marriage to Mary Draper to his death.
“(5) The court erred in setting aside the deed for failure of consideration to Charles Draper and wife, Hattie Draper, from Gottfred Sharrer and wife, Dorothy Sharrer.
“(6) The court erred in setting aside the deed to Charles Draper and wife, Hattie, from Gottfred Sharrer and wife, Dorothy, because the complainant did not pray in her bill of complaint for the setting aside of said deed, but only that she be decreed a lien on said land and entitled to her support and security therefor.”

The first two of these groups may be treated together. The record shows that the personal property which had been conveyed to Charles and Hattie, as part of the consideration for the future support of Dorothy, remained in the possession of Charles, on the farm, when Hattie left him. Mary induced him before she married him to give her a bill of sale of this personal property. Mary has that property yet, or its proceeds, worth, as the bill shows, about $375. She had the use of the complainant’s cows for two years before the death of Charles; and she has had the use of the farm from his death until now, worth upwards of $100 a year. We think the allowance made and the time of its payment is fully justified by the record.

The record shows that Mr. Russell furnished the money to take care of the Withey mortgage which had been foreclosed by Mr. Wood. It would not be equitable to hold otherwise than was done by the court.

The land was held by Charles Draper and Hattie Draper by the entireties. The allowance which should be made because of improvements made after the marriage of Charles Draper and Mary Draper was fully covered.

Groups 5 and 6 may be considered together. The statement in the bill and the prayer thereof which we have heretofore quoted is sufficient. The proof is also sufficient to justify the decree.

The decree is affirmed, with costs.

Steers, McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Steeee, J.

text:
    ALLEN v. LUDINGTON STATE BANK.
    Specific Performance — Vendor and Purchaser — Memorandum —Landlord and Tenant.
    Where complainant, for the purpose of running a disorderly-house, entered into an arrangement with defendant .bank, which it olaimed was a lease of the premises, but which complainant contended was a contract Of purchase on monthly installments, evidenced by a brief and insufficient memorandum, subscribed by the president of defendant in his own name, and where complainant was given receipts for rent at the time of nearly every payment and the bank frequently made repairs on her demand, it was held, that the court was warranted in refusing a decree of specific performance.
    Appeal from Mason; Withey, J.
    Submitted January 24, 1912.
    (Docket No. 79.)
    Decided March 12, 1912.
    Bill by Mabel Allen against the Ludington State Bank, Charles G. Wing, John H. Cota, Frances Cota, and Hattie McDonald for specific performance of a contract for the sale of land. From a decree for defendants, dismissing the bill of complaint, complainant appeals.
    Affirmed.

      Robert J■ Quail, for complainant.

      M. R. Danaher and H. Q-. Reek, for defendants.
   Steeee, J.

This suit involves a piece óf real estate in the city of Ludington, known as the north 175 feet of lot 4 of block 83, except the south 50 feet, reserved for street purposes, of the original plat of the city of Ludington.

The bill of complaint is filed for specific performance of an alleged contract for the purchase of this property, or, in lieu thereof, a money judgment against certain of the defendants for the difference between the sum paid by complainant and the value of the use of the premises while she occupied them; and also to obtain an injunction, restraining defendant Cota from further prosecuting an ejectment suit brought to dispossess complainant.

At the conclusion of the trial in the circuit, the court, after having heard the testimony and arguments of counsel, offered some pertinent reflections as to the atmosphere surrounding the transaction, and gave it as his conclusion that neither party appeared before the court with clean hands, and thereupon dismissed the proceedings, without costs to either party.

At the hearing it appeared, undisputed, that complainant had been in possession of these premises since September, 1906, maintaining thereon a bawdyhouse, paying monthly to the Ludington State Bank, of which defendant Wing was president, the sum of $25. During this time there was a series of conveyances and transactions with this property, in some of which defendant Wing acted as scrivener and legal adviser, resulting in complications by which it is claimed, on the part of complainant, that she bought the house and lot for $1,000, to be paid for at the rate of $25 per month, and on the part of the defendant that she was merely a tenant, paying a monthly rental of $25.

As early as 1901, this property belonged to defendant Hattie McDonald, who had become indebted to the Ludington State Bank, which held a mortgage thereon. In 1906 she deeded it to the bank to facilitate an actual sale of it to a man named Brady, as it is claimed, which sale was never consummated. The title of record remained in the bank until 1907, when it was reconveyed to her; she giving a mortgage on the property to the bank for the amount it was claimed she was owing it. In October, 1907, she deeded it to defendants John and Frances Cota, who gave back to her a mortgage, which, in August, 1908, she assigned to the bank. In March, 1910, Cota began an ejectment suit against complainant, having previously served on her notice to quit for nonpayment of rent.

While title to this property was in the bank, defendant Wing gave to a woman named Pearl Eddy the following memorandum in writing:

“ Mrs. Pearl Eddy to have a land contract for lot 4, block 88, for one thousand dollars, payable $25 monthly, with interest at 5 %.
“September 10, 1906.
“C. G. Wing.”

This memorandum was shortly afterward assigned to the complainant.

It is in evidence in behalf of complainant that about the time this memorandum was made Pearl Eddy attempted to rent or buy this property from Mr. Wing to use as a “ladies’ house,” and was informed by him that it could not be rented for such purposes, but could be sold. That as a result of their negotiations a contract was made, as evidenced by the memorandum. It is further claimed by complainant that this deal was in fact made for complainant; Pearl Eddy not desiring or intending to occupy the property. That complainant, after receiving the assignment, interviewed Wing,, asking him if Hattie McDonald had any interest in the property, informing him of the fact that she had an assignment of the memorandum and intended to use the place as a disorderly house. That Wing told her that dealings must be entirely with the bank, and that Hattie McDonald had nothing to do with it. That thereafter monthly payments were made according to the terms of the contract; one payment being made, for which a receipt was given reading as follows:

“September 9, 1907. Received of Mabel Allen fifty dollars payment as interest on land contract she claims to hold for Hattie McDonald property.
“O. Q. Wing, President.”

That $25 per month was paid on this contract for the period of 50 months, and the full amount of the purchase price and interest have now been paid in accordance with the terms of the memorandum, except $50 which she has tendered, with a demand for a deed of the property.

It is in evidence in behalf of defendants that this property belonged to Hattie McDonald until sold by her to the defendants Cota; that the interest of the Ludington bank was only that of a mortgagee, the title for a time being in the bank by a deed which was in fact but a mortgage, the same having been given only to facilitate a sale which Hattie McDonald had negotiated, as heretofore stated; that arrangements were made for all rentals to be paid to the bank to apply on the indebtedness to it; that Pearl Eddy’s negotiations were with Hattie McDonald, and not with the bank, Mr. Wing simply acting as scrivener and legal adviser; that on the 10th of September Pearl Eddy and Hattie McDonald, having negotiated some sort of*a contract of sale of the property, went to Wing and stated to him the tentative bargain, proposing to come later and have a formal land contract drawn up; that in the meantime, at the request of Pearl Eddy, he handed to her the memorandum upon which complainant relies; that no contract was entered into or consummated by the parties at the time, it being fully understood and agreed that they should meet later, when the matter of taxes, insurance, and repairs and other details would be agreed upon and set forth in a regularly executed instrument; that neither Mabel Allen nor Pearl Eddy ever made any bargain or agreement with Wing or the bank in regard to this property, and that he never made any statements to them in regard to selling rather than renting the property for the purpose they state; that Mabel Allen, being in possession of the property as a tenant, regularly paid her rent to the bank, which was received for Hattie McDonald and applied on her indebtedness; that some time later she claimed to have a contract for the property from Hattie McDonald, and, without knowing what the facts were, Wing took $50 she tendered him and gave a receipt for the same, as she requested, which was credited on Hattie McDonald’s indebtedness; that two or three other receipts of like import were given her at her request under the same representations; that the rent she paid was the same as other women before her had paid for the same property for the same purposes; that she paid no taxes, insisted on repairs, refusing to pay further rent, unless the same were made, and that repairs were made and the taxes paid by the bank, being charged to Hattie McDonald, against whom the mortgage was held; that the board of directors of the bank never considered or acted upon any contract with complainant, and had no interest in the property beyond security for. the debt which Hattie Mc- , Donald owed; that the defendants Cota purchased this property directly from Hattie McDonald in good faith, believing she had title thereto, subject to the mortgage, and having no knowledge of complainant’s claim, simply supposing she was a tenant paying rent.

It appears to be undisputed that during her occupancy of the premises complainant, in monthly installments, made payments aggregating $1,050, the last being on January 8, 1910, at which time she ceased payments, but remained in possession of the premises, and was still in possession at the time this case was heard in circuit court. Most of the receipts given are for monthly payments, stating that they are for rent of the premises. Aside from the $50 receipt already referred to, of the 40 receipts given to her, three state the payments are to apply on Hattie McDonald’s mortgage, and one, of June 8,1908, “on contract claimed to hold for H. McDonald.”

It appears that in July, 1907, there was some litigation between complainant and Hattie McDonald before a circuit court commissioner, the nature of which is not disclosed by the record, but the same was settled; the following receipt being given to and accepted by complainant through her attorney:

“ $25.00 Ludington, July 8, 1907.
“Received of Mabel Allen, per M. Quail, twenty-five and 0/00 dollars.
“Rent due Mrs. Hattie McDonald in suit before me.
[Signed] “ H. G. Reek, “Circuit Court Commissioner.”

It is quite evident that defendant Wing, who appeared on the trial of the cause in the dual capacity of counsel and chief witness for the defense, was familiar with the property and the purpose for which it was used. He testifies:

“ I have had the management of this property since the loan to Hattie McDonald, which, I think, was made in the year 1901. I never had to do with the management of the property, except in the sense of paying the taxes' and occasionally keeping it out of trouble. * * * It was in the fall of 1906 * * * that Mabel Allen, who was then paying rent, as others had been for years before, at the same rate, had sent word to me that the roof was leaking; that the house was untenantable; and that she would not pay the rent, unless it was fixed up. * * * Anyway, I had to go and do such jobs; * * * and there was where I saw the situation — the kind of place it was.”

It might well be inferred from the testimony of the chief witnesses in this case that there was some understanding between the parties that at certain times and for certain purposes this property was to be treated as sold or rented, according to the exigencies which might arise; but we do not think that under the facts disclosed by this record the writing relied on by complainant can be construed as a valid and enforceable land contract entitling her to specific performance. It is but a scant memorandum, handed to Pearl Eddy by Wing, acting for Hattie McDonald, with whom Pearl Eddy was negotiating a deal. On its face it shows that it is tentative — not that she had a contract, but is “ to have a land contract.” It bears but this brief indorsement, without date: “Transferred to Mabel Allen. Pearl Eddy.” It appears, undisputed, that neither the bank nor Wing had any interest in the property at that time, except as security for a loan. Wing’s explanation that he was acting only for Hattie McDonald as a scrivener and an attorney, giving this memorandum for her to show Pearl Eddy what the contract would be, provided they finally consummated it, seems reasonable and in harmony with the history of this transaction as a whole. He did not then own the property, and Pearl Eddy knew it, and the woman who did own it was present negotiating with her.

Complainant was in possession of this property at that .time as a tenant according to her own testimony. She says, in detailing her conversation with Wing:

“ I asked him if it was all right for me to pay the |25 she had loaned me, and pay this month’s rent that was due the 1st, and he said that would be all right.”

She took receipts for rent without protest during all these years, demanded at times repairs, refusing to pay more rent until they were made, accepted a receipt for rent in settlement of the litigation with Hattie McDonald nearly a year after she had gone into possession of the property, and never paid any taxes on it. Her possession began as a tenant. She later claimed that she had a contract from Hattie McDonald, and had some receipts of that import given her by the bank. Her conduct during much of the time she occupied the property is not consistent with her present claim of ownership. The rent she paid was the same as that previously paid by women for the same property for the same purpose. In view of this purpose for which the house was used, with the added benefits of officials of the bank making repairs, paying taxes, “and occasionally keeping it out of trouble,”it cannot be inferred, by reason of the amount, that the monthly payments were payments on a contract, rather than for rent.

On this record, taken as an entirety, we are not satisfied that complainant has shown, by a preponderance of the evidence, that she has an enforceable contract, and think that the trial court was not in error in dismissing the case, leaving the parties where it found them.

The decree is affirmed, without costs to either party.

Moore, O. J., and McAlvay, Brooke, Blair, Btone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Steers, J.

text:
      In re DE HAAN’S ESTATE.
    1. Estates oe Decedents — Executors and Administrators — Claims eor Services — Parent and Child.
    On appeal from the commissioners on claims, the circuit court, not having original jurisdiction, cannot permit a claimant to amend his claim so as to present matters which the commissioners did not pass upon. '

      2. Contracts —Quasi Contracts — Express Agreement Precluding Implied.
    No contract can be implied between parties who have expressed an agreement on the same matter.
    8. Same — Parent and Child — Estates of Decedents.
    Evidence that decedent got his son to move on his farm and care for decedent, work the farm and share in the proceeds, that an agreement was made between them to give the son two-thirds and the father the rest of the crops, the son to have the use of his father’s horse and cow, that the father had said to several witnesses that he was going to make it right with the son, and he did in fact devise the homestead to the son and his family by his last will, has no tendency to establish an implied contract to pay the son for the care of the deceased.
    4. Same — Presumptions.
    It is presumed that services rendered by a son in caring for the father and for property owned by him, while all were living together as a family were gratuitously performed.
    Error to Ottawa j Padgham, J.
    Submitted J anuary 26, 1911.
    (Docket No. 65.)
    Decided March 12, 1912.
    Arend Branderhorst, administrator of the estate of Peter De Haan, deceased, presented a claim against the estate of Geert De Haan, deceased, for board and services rendered. From the allowance of the claim, the defendant estate appealed to the circuit court. Judgment for defendant upon a directed verdict. Claimant brings error.
    Affirmed.

      Jarrett N. Clark and George A. Farr, for appellant.

      Diekema & Kollen ( Wilkes & Hoffman, of counsel), for appellee.
   Steers, J.

Geert De Haan and Peter De Haan were father and son. They had lived together on Geert’s farm for many years. Peter, who had a family, worked the farm on shares, and Geert, who was a widower, boarded with him. Peter, the son, died on May 7, 1909, and Geert, the father, died on June 6, 1909. While their estates were being administered, Arend Branderhorst, administrator of the estate of Peter, presented on December 4, 1909, to the commissioners on claims in Geert’s estate, a bill, amounting to #2,094, for board, care, and attendance of Geert during a period of 958 weeks,, based on an implied contract to pay for the same. This bill was allowed by the commissioners, and an appeal was taken in behalf of the defendant estate to the circuit court of Ottawa county, where the case was tried before a jury and a verdict rendered for defendant by order of the court.

It was the opinion of the circuit judge that the testimony did not tend to establish an implied contract as claimed, but did show an express contract covering the matter, which contract had been performed, excepting a possible claim which Peter might have had against Geert for the use of a cow and a horse during a portion of the time they lived together. Touching this possible claim, the court proposed to counsel for claimant that he might amend the pleadings, if he wished, and make proof of values; whereupon that question would be submitted to the jury. Counsel claimed the right to go to the jury on the question of an implied contract for the full amount, and disavowed any desire to try the smaller issue, saying to the court:

I do not thing we care to go to the jury on the question of the value of the use of the cow for six years, and I don’t care to make the amendment suggested.”

Under this statement, and in the absence of any proof as to value of the items which the court suggested might be proper for a jury to pass on, a verdict was directed as stated.

The items for the use of a cow and horse during a portion of the time the parties lived together were never presented to the commissioners in the probate court. The circuit court had no original jurisdiction in the matter, and no new claims could be considered there. For that reason, as well as the absence of proof of value, the court properly directed the verdict in that particular. Patrick v. Howard, 47 Mich. 40 (10 N. W. 71); Kroll v. Ten Eyck's Estate, 48 Mich. 230 (12 N. W. 164); Luizzi v. Brady's Estate, 140 Mich. 73 (103 N. W. 574).

It is elementary that there can be no implied contract in relation to a particular matter where the parties have made an express contract on the same subject. It therefore remains to determine whether there is any testimony which warranted the claim that there was an implied promise on the part of the father to pay the son the amount contended for, or any part of it.

The facts do not appear to be in dispute. Nine witnesses were sworn; much of their testimony cannot be claimed to touch on the important questions involved. In 1890, when he was about 60 years of age, Geert De Haan was living on his farm of 80 acres, in Zeeland township, alone with his youngest son, a boy 16 years old, working the farm and keeping house as best they could. Geert’s wife was dead and the rest of the family away. Geert found this unsatisfactory and desired to change, either to live with some of his older children, or have them come and live with him. He finally secured his son Peter, who lived on a small mortgaged farm in Allendale and was owing his father, to join him. Peter moved with his family to his father’s farm, bringing a horse and some farming tools with him. He had a numerous family. His oldest child was then eight years of age. When he died, he had nine children.

The father had two rooms in one part of the house, with his own furniture in them, and boarded in Peter’s family. Peter ran the farm, getting two-thirds of the crops. The father worked on the farm at times as he felt disposed, and kept a horse, which he used at pleasure, feeding it from his share of the crops. They continued to so live there together, apparently contented and in harmony, until they died. The testimony shows quite clearly that when Peter returned to his father’s farm they had a definite understanding and express contract as to the terms on which they should live together and the farm be worked.

Arend Branderhorst, the administrator of Peter’s estate, who presented and is urging this claim, testified:

“Peter came to the farm in the fall of 1890. When Peter came to the old gentleman’s farm, the old gentleman had a horse and cow. I could not say if he had more than one cow, but I recollect he had one cow that Peter should have the use of. I don’t know how long the old gentleman kept the horse; but Peter told me he sold that cow when she was three weeks fresh. When Peter was telling me this, the old gentleman and Peter were both present; but I could not say if the old gentleman heard Peter say that. * * *
“Q. You have had a talk with the old man before the time Peter came there about the arrangements of Peter’s coming ?
“A. Yes, sir. * * * He said Peter took the farm. He got one-third; Peter two-thirds.
“Q. Is that all ?
“A. Then Peter said he had to have the horse and cow.
”Q. Who had the horse and cow ?
“A. He was going to-have the horse and cow.
“Q. For what?
“A. For the board.
“Q. For the old man’s board ?
“A. Yes, sir.
“Q. That was the arrangement they made when the old man went there, was it? that is, the arrangement they made at Allendale ?
“A. Yes, sir. * * *
liQ. Who told you that?
"A. Peter told me, I just said.
etQ. And the old man, too ?
“A. The old man said Peter was going to have two-thirds, and he was going to have one-third, and then Peter said he was going to have the use of the horse and cow. * * * When the old man told me Peter was going to have that, then Peter said he was going to have the horse and cow, too — the use of the horse and cow.
“Q. For the board of the old man ?
“A. Yes. * * * When Peter moved to the old man’s farm, the old man had a horse. He still had the horse when Peter died. This was not the same horse. * * * He traded horses once in a while. Peter had two horses. When he used three horses, he used the old gentleman’s horse. * * * They used him some on the cultivator and on the binder for the third horse, when they used a third horse. * * * ' The old gentleman fed his horse out of his own share of the feed. After the old man sold the cow, he never had a cow after that. Peter had generally four cows, which he pastured on the place. Peter had all the milk and butter, except such as the old man needed for his own use. He pastured his cows there during the time he lived there, and some young stock.”

There is no other evidence of any statements or claims made by Péter, or statements by the father to Peter or in his presence. The other testimony relates mostly to friendly relations of the parties and statements made to neighbors by the father, expressing satisfaction with his treatment, and ■ declarations of intention to compensate Peter and his family for their kindness to him by giving them a gratuitous preference on his decease.

We find no proof in the case of any direct promise made by the father to pay for “care and attendance,” or of any statement by him to others that he had made an agreement of that nature. In various conversations with his neighbors, in which he was expressing satisfaction with the manner Peter and his family had treated him, he used expressions from which it is claimed a bargain can be inferred. The strongest of such expressions are: “He had lived comfortably with Peter and was going to make it right with Peter;” “that he would make it good for Peter;” that “Peter and his family had taken care of him and he wanted to compensate them for itand in a conversation with a witness named Lenters, while expressing satisfaction over Peter returning to live with him, he said, “ Of course, he gets the 40 acres, the homestead, for my keep.” His intention in that particular appears to have been carried out in his last will. The will is not set out in the record; but from the testimony of the man who drew it, who seems to have referred to the will when he was testifying, Geert left the homestead to Peter and his wife for life, with remainder to their children. This witness testifies that he drew four different wills for the old gentleman, in some of which he left the homestead to Peter, and in some of which he did not. He had numerous lengthy conversations with Geert on the subject, and testifies to various statements by him to the effect that he desired to provide compensation for Peter and his family in return for their kindness to him. He also testifies in that connection:

“ He said he never made a particular bargain, only that he wanted Peter and Peter’s family to have a certain amount of his property; that he would make it good with him if ho took care of him.”

Peter died before his father, and Peter’s family got the 40-acre homestead.

There is not a word in the record showing that Peter or his family at any time claimed or expected to be compensated for extra services rendered. There is little to indicate that he was given or required any special care and attention beyond that reasonably implied in case of an ordinary boarder. Geert was living in his own house, in rooms furnished by himself. He is not shown to have been sickly or helpless or in need of extra care. It is testified that even during the last few years of his life he was not sickly, though he was troubled with rheumatism by spells, and old age was coming on. There is no testimony as to the duration or nature of his last illness, and there is an absence of any testimony from which the value of the alleged services might be ascertained.

The presumption is that services of the nature claimed, rendered in the family to ft relative, are gratuitous. There is not enough in this record to overcome the presumption of relationship. There is uncontroverted proof of an express contract for board. To establish this claim of an implied contract for extra care and attendance, the service must be proven, and there must be testimony tending to show an agreement, assented to by both parties, binding in law and requiring compensation. The import of the testimony relied on is gratuitous expressions of intention to compensate Peter and his family for this kindness during the years the father lived with them. This case is within the rules announced in Decker v. Kanous’ Estate, 129 Mich. 146 (88 N. W. 398); Luizzi v. Brady’s Estate, 140 Mich. 70 (103 N. W. 574); In re Colburn’s Estate, 153 Mich. 206 (116 N. W. 986, 126 Am. St. Rep. 479), and cases there cited.

The judgment is affirmed.

Moore, C. J., and McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Brooke, J.

text:
    TRUMAN v. J. I. CASE THRESHING MACHINE CO.
    1. Damages — Profits—Speculative Receipts.
    Anticipated profits of an itinerant thresherman were not recoverable from a mortgagee who wrongfully took possession of the threshing machine, upon evidence offered by plaintiff which was indefinite and showed that the profits were uncertain, dependent on the weather, and on matters beyond plaintiff’s control.
    2. Same — Principal and Agent — Parol Evidence Rule.
    Testimony that defendant’s agent told plaintiff at the time the machine was purchased that he. could make $700 or more profit before the first payment became due, was inadmissible to add to the terms of the written contract which contained no such warranty. •
    3. Same — Fraud.
    The agent’s statement amounted to no more than “puffing” used generally by salesmen.

      4. Chattel Mortgages — Possession by Mortgagor — Insecurity Clause — Good Faith.
    Instructions to the jury that defendant must satisfy them by a fair preponderance of the evidence that it believed and had good reason to believe that its security was in danger of being impaired, that there was ground for such belief and defendant acted in good faith in seizing the threshing machine, were prejudicial error, being in conflict with a prior statement of the correct rule that if defendant acted in good faith plaintiff could not recover, though the reasons on which it acted were insufficient.
    Error to Hillsdale; Chester, J.
    Submitted January 26, 1912.
    (Docket No. 37.)

    Decided March 12, 1912.
    Trover by Orrin B. Truman against the J. I. Case Threshing Machine Company for the conversion of a threshing machine. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Loelcerhy éb Bowen, for appellant.

      Miles T. Davis and Fellows <& Chandler, for appellee.
    Plaintiff sues in an action of trover for the value of a threshing machine taken by defendant under the so-called insecurity clause of a chattel mortgage. He also seeks to recover special damages caused by said taking. The machine was sold in 1908 for $2,200, the defendant taking four promissory notes for the amount, the first of which fell due in September, 1909, and one each year thereafter. To secure the payment of these notes plaintiff gave to defendant a chattel mortgage upon the machine. This mortgage contained the usual recital that:
    “If said party of the second part shall at any time deem itself insecure, then, thereon, and thereafter it shall be lawful, and the said first party authorizes the second party, its successors and assigns, or its authorized agent, to treat the debt hereby secured as fully due and payable, and to take said property wherever the same may be found, and hold or sell and dispose of the same and all equity of redemption, at public auction or private sale, with or without notice, and on such terms as said party of the second part or its agents may see fit,” etc.
    During the summer of 1909, defendant claimed to have learned facts which led it to believe that plaintiff was engaged in litigation and that he intended to run the machine until the first note came due in September and then abandon it to defendant.
    Acting on this information defendant seized the machine on August 24, 1909, and, after giving notice to plaintiff, sold it at public sale for the sum of $1,43'?, defendant itself becoming the purchaser at such sale.
    Plaintiff brought this action the day after the seizure, and to the usual declaration in trover added a special count for damages growing out of loss of profits upon some 60 threshing contracts which he claimed to have had at the time of the seizure.
    Defendant filed a plea of the general issue with notice that defendant was justified in the taking by virtue of the clause in the mortgage above quoted, and the acts of the plaintiff whereby the power of seizure under said clause became operative. Plaintiff had verdict for $228.28, that being the amount of his claim allowed by the jury in excess of the mortgage debt. Defendant has brought the case to this court for review.
   Brooke, J.

(after stating the facts). While there are some 80 assignments of error, we will examine those only which properly arrange themselves under the following heads:

(1) That the court erred in admitting testimony, on behalf of plaintiff, relative to the profits which plaintiff might have made during the threshing season of 1909 had the machine not been taken from him. The objection to this line of testimony was that such prospective profits were uncertain, indefinite, speculative, and conjectural.
(2) That the court erred in admitting testimony relative to representations said to have been made by defendant’s agent to plaintiff as to what he could earn with the machine if he purchased it. This was objected to upon the ground that it was incompetent and immaterial, and, further, that the whole contract was in writing and must govern.
(3) That the court erred in refusing certain requests to charge, and in the charge as given.

Touching the first group of assignments, we find that plaintiff was permitted to testify that he had about 60 contracts for threshing in the fall of 1909. These contracts were not in writing. Plaintiff claimed to have contracts with many persons whom he had never seen. His claim as to those was that different ones came to him and asked him to do their threshing and while there thresh what might be in the neighborhood. On cross-examination he testified:

c* I have given these names from a list which I have read from and which I made out a day or two ago. I went over the acreage last night. After court adjourned last night I prepared a list of the acreage which I have given here this morning. This list is an estimation of the acreage that they had when they contracted the jobs with me. I made an estimate of the acreage at the request of you fellows here yesterday. I have estimated some of the acreage these people had, and corresponded some of my jobs with other threshers that threshed the jobs after-wards. It is from what they told me, as near as I could remember, they had at the time, as near as I could remember, of what they told me when they contracted the job. I have got some of that statement off of other threshers’ books that done jobs of mine after the taking away of my machine. I haven’t any book accounts, nor never had, of the acres, so I must depend largely upon my memory. * * * I haven’t attempted to divide and give the number of acres of oats and the number of acres of wheat. [Plaintiff had testified on direct examination that a fair profit for threshing oats was one and one-half cents per bushel, and for wheat two and one-half cents per bushel.]
“Q. Now, I ask you once more, have you any idea, and can you give us so as to form a good fair basis of the number of bushels of wheat, or the number of bushels of oats, that were grown and threshed upon the farms that you have named that year ?
“A. I would have no way of knowing the number of bushels of grain, no. * * *
“Q. Yes; it isn’t much more than guesswork, is it, Mr. Truman, as to what it would—
“A. Well, of course, it’s partially in that way, a man in threshing, he knows what the run of acreage runs, and, of course, he figures upon that, but, of course, it would be partially guesswork; a man wouldn’t know how- much was in a job until it was done. * * * My profits would depend on whether I could run right along or whether I couldn’t run right along. If I should break down, had bad weather, bad grain, and bad threshing there wouldn’t be much profits. Those things occur in the threshing business and in all business, I guess. * * * I had never run a machine in that territory and didn’t know what that territory — there is a difference in territories — I didn’t know what a machine was able to make there; I never had any experience for myself in that particular territory.”

We have quoted these excerpts from plaintiff’s testimony in order to show its unsatisfactory and indefinite character as a basis upon which to award damages for loss of profits. We think this case falls clearly within the principle laid down in Allis v. McLean, 48 Mich. 428 (12 N. W. 640), where Mr. Justice Cooley said:

“The profits of running a sawmill are proverbially uncertain, indefinite, and contingent.”

The very frank and truthful testimony of the plaintiff upon this subject shows that the contingencies which enter into the business of itinerant threshing are numerous and grave. In our opinion they are much greater than are those attendant upon the operation of a sawmill. Talcott v. Crippen, 52 Mich. 633 (18 N. W. 392); Aber v. Bratton, 60 Mich. 357 (27 N. W. 564); Stevens v. Yale, 113 Mich. 680 (72 N. W. 5); Dowagiac Manfg. Co. v. Corbit, 127 Mich. 473 (86 N. W. 954, 87 N. W. 886); Quay v. Railway Co., 153 Mich. 567 (116 N. W. 1101, 18 L. R. A. [N. S.] 250).

In Cushing v. Seymour, Sabin & Co., 30 Minn. 301 (15 N. W. 249), the court there, having under consideration the loss of profits growing out of the unlawful conversion of a threshing machine, said:

“Anticipated profits of this character are too conjectural and uncertain to furnish a proper basis for estimating the compensation to which plaintiffs are entitled for the alleged wrong. This is reasonably apparent, we think,, when it is considered that threshing is conducted in the open air and subject to contingencies of weather, breakages, delays, condition and quality of grain and state of roads, and skill and energy in operating the machine, which make it impracticable definitely to ascertain what the profits of performing particular threshing contracts will be.”

On this branch of the case the learned circuit judge charged the jury as follows:

“You will further inquire and determine whether plaintiff has suffered any special damages by way of loss of profits or use of the machine. And upon this question of special damages, if you find plaintiff has been damaged in this particular, you will allow him such amount as will reasonably compensate him for the loss of profits, lost by reason of being deprived of the possession and use of this machine through the unlawful conduct of the defendant.”

It follows from our views, as expressed above, that this instruction was erroneous.

As to the second error of which complaint is made, we find the following testimony was admitted over objections :

CiQ. Now, Mr. Truman, at the time you were engaged in the purchase of this machine, I ask you what representations were made to you by the agent of the J. I. Case Threshing Machine Company as to the profits, and the amount you could make with this machine before the first payment would become due September 20, 1909 ?
“A. He said I ought to be able to make $700 or $800 with the machine.”

This testimony was clearly incompetent. The whole contract was in writing and contained no such warranty.

The statement, if made, amounted to no more than the ordinary {‘ puffing ” used by salesmen generally. Even if the question of profits had been properly before the jury for consideration, this testimony should have been excluded. McCray Refrigerator, etc., Co. v. Woods & Zent, 99 Mich. 269 (58 N. W. 320, 41 Am. St. Rep. 599); Detroit Shipbuilding Co. v. Comstock, 144 Mich. 516 (108 N. W. 286).

The third error we will consider relates to a portion of the charge. Upon the question of the right of defendant to take possession of the machine under the terms of the mortgage, the court charged as follows:

“Evidence has been offered by defendant tending to show it felt insecure and so seized the property in question. The mortgage gave defendant that right, if in fact, acting in good faith, it felt itself insecure, as by it claimed. The first question for this jury to consider is the good faith of the defendant, and whether or not there were any reasons as a basis for it to act. You are not to judge of the sufficiency of the reasons, or whether you would haVe acted as did the defendant under the same circumstances, but you are to take into consideration all the facts as shown by the evidence on which the defendant claimed it was acting, and determine from such evidence whether or not any reasons existed and were known to the defendant at the time on which it might in good faith act, and whether or not it did act in good faith in seising said property. The reasons given may not appeal to you as good reasons, yet the defendant may have acted in entire good faith; and, if you find that to be the fact, the defendant would not be liable in this case, and your verdict under such circumstances must be no cause of action. If you find that the defendant in this case acted in good faith in the belief that it was insecure, it was justified in taking possession at the time and in the manner it did, even though the reasons assigned may not be regarded as sufficient ones by the jury. In other words, it is not necessary that it should appear that the mortgagee was in fact insecure. By the terms of the mortgage a certain discretion is vested in the mortgagee, of which the jury cannot divest it, so long as that discretion is honestly exercised. And if you find in this case that the agent of defendant sent to investigate this claim, if he was sent, reported, giving his version and his conclusion thereon, you are not to question the judgment of such agent, however erroneous it may have been, if you find it was based on an honest belief that the defendant was insecure in its security. If you find the defendant acted in good faith in taking the property at the time and manner claimed, then in this case there would be no conversion, and your verdict would be in favor of the defendant, and in that event there would be no need to consider the question of damages. * * * The defendant had no right to act arbitrarily, and, before it took possession of the property for any other reason than default in payment, it must have had reasonable cause for believing that it was in danger of having its security impaired, either by reason of the neglect of the plaintiff to give proper care to the machinery, or by reason of his careless use of the same, or by reason of apprehension that the plaintiff would attempt to dispose of the property or to remove the same to some place that he had no right to take it under the terms of the mortgage. In other words, that the defendant in good faith actually believed, or had good reason to believe, that the plaintiff was in some way doing or attempting to do with the machinery that which was liable to impair its security. And, as bearing upon the question of the good faith of the defendant in taking possession of this property, you should consider all the testimony in the case, what, if anything, the defendant did in good faith in an effort to ascertain the condition of this property, the action of the plaintiff toward it, and all of the circumstances surrounding this transaction. * * * The burden of proof in this case is upon the defendant, and the defendant must satisfy you by a fair preponderance of all the evidence that it believed and had good reason to believe that its security was in danger of being impaired, and that there was ground for such belief, and that it acted in good faith in seizing this property, otherwise the plaintiff would be entitled to recover under the instructions which I have given you and will give you hereafter. Upon all the rest of the questions in this case the burden of proof is upon the plaintiff in this case.”

These instructions are contradictory. In one portion thereof the jury are told that, whether the reasons which actuated the defendant were, in the estimation of the jury; good or not, the plaintiff could not recover if defendant acted in good faith. Later it is said the defendant must show by a fair preponderance of the evidence that it believed and had good reason to believe that its security was in danger of being impaired. The infirmity in this instruction is exactly that pointed out in the case of Woods v. Gaar, Scott & Co., 93 Mich. 143 (53 N. W. 14).

The other assignments of error need not be considered as they are not likely to arise upon another trial.

The judgment is reversed, and a new trial ordered.

Moore, C. J., and Steere, Me Alva y, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    CRAIG v. BROWN.
    Attachment — Forest Products — Logs and Logging — Process— Substituted Service.
    Under the statute creating and enforcing liens upon logs and other forest products, 8 Comp. Laws, § 10761, service must be made upon the owner of forest products seized under attachment; and on a showing that the owner, one of the defendants, was at his usual place of residence during 17 days before the return day and after the officer had served the writ upon his agent in charge of the defendant’s office, the attachment was properly dissolved. Reynolds v. Marquette Circuit Judge, 125 Mich. 445 (84 N. W. 628).
    Error to Chippewa; Steere, J.
    Submitted January 23, 1912.
    (Docket No. 148.)
    Decided March 12, 1912.
    Attachment by Archie Brown, Stephen Craig, and others under the log-lien act against Eugene Brown and another. The writ was levied on certain property claimed by Millard D. Olds who intervened. Upon motion of said intervener to dissolve the writ the property was released, and plaintiff brings error.
    Affirmed.

      John A. McMahon and L. G. Holden, for appellant.

      C. 8. Beilley, for appellees.
   Brooke, J.

This ease is here on writ of error, the purpose of which is to review the action of the circuit judge in entering an order dissolving the writ of attachment, releasing the forest products seized thereunder, and discharging the bond given by Millard D. Olds, intervener.

The reason for the making of said order is set out therein as follows:

“ It appearing to the court that no proper service of said writ had been made upon said Millard D. Olds, owner of the forest products, one of the defendants.”

The statute governing the matter is section 10761, 3 Comp. Laws, and provides:

ccThe attachment shall require the sheriff, or other proper officer, to attach and safely keep the property or products described in the writ, or so much thereof as is necessary to satisfy the claim of the plaintiff, with all costs and disbursements, charges and expenses, and said attachment shall also require the said sheriff, or other proper officer, to summon the defendant therein named to appear before said court at the time and place therein specified, the same as ordinary writs of attachment in circuit and justices’ courts; and any such attachment or other process issued out of said courts of this State in pursuance of the provisions of this act, may be served in any county of this State, and if the defendant in said attachment is not the owner of the property or products described in said writ, then the officer executing said writ shall serve or cause to be served a copy of said attachment on or before the return day mentioned in said writ upon the owner of said products, or any of them, their proper agent or attorney, if such owner, agent or attorney be known to him, and residing in this State.”

It appears that defendant Olds is a resident of the city of Cheboygan, where he is engaged in the manufacture of lumber. On July 1, 1910, Olds was absent from Cheboygan, but returned on July 3d. Seryice of the writ herein was made on July 1st, upon one Edgar O. Hugill, described in the affidavit of service as “the agent, bookkeeper, and man in charge of the lumber office of Millard D. Olds.” The return day of the writ was July 20th. The affidavit of Olds, in support of his application to dismiss the writ, shows that he was at home in the city of Cheboygan all the time between July 3 and July 20,1910. This statement of facts is identical with that considered by this court in Reynolds v. Marquette Circuit Judge, 125 Mich. 445 (84 N. W. 628), where it was held that the service was bad.

Plaintiff insists, however, that we should overrule our holding in that case; it being his claim that the question of service under the log-lien law (section 10761, 3 Comp. Laws) was confused with the service provided for under the general attachment law (sections 730 and 731,1 Comp. Laws).

We find the decision in Reynolds v. Marquette Circuit Judge, supra, is based in part upon the case of White v. Prior, 88 Mich. 647 (50 N. W. 655), where Mr. Justice Grant, in construing this statute, said:

“Substituted service is only permitted in case the defendant cannot be found.”

Again, in the case of Pepin v. Nault, 149 Mich. 180 (112 N. W. 959), the statute was under consideration, and, though there are two opinions, and the Reynolds Case is discussed in both, no doubt is cast upon the correctness of that decision.

The contention of plaintiff that section 10761, 3 Comp. Laws, provides for one method of service upon the defendant and another method of service upon the owner of the forest products, and that the authority to serve “their proper agent or attorney ” should be construed as having reference to primary, not substituted, service, is not without force. We find, upon examining the briefs and records in the Reynolds Case, that this view was there urged and rejected.

Upon a consideration of the whole matter, a question of practice only being involved, we have concluded that the judgment of the court should be affirmed.

Moore, O. J., and Mo Alva Y, Blair, Stone, and Ostrander, JJ., concurred. Steere and Bird, JJ., did not sit.