text:
    EAMES v. BARBER.
    1. Usury — Rent-^Landlord and Tenant — Lease—Interest—Distinctions.
    Under Consolidated Laws New York (1909), Vol. 2, § 370 et seq., the rate of interest is limited to 6 per cent. By statutes of Texas interest is defined as the compensation allowed by law or fixed by the parties to a contract for the use or forbearance or detention of money. Interest rates in Texas are limited to 10 per cent., in New York to 6 per cent. In a suit to recover an installment of rent on a lease of certain real estate located in Texas, brought in Michigan by the lessors, who were residents of New York, providing for the payment by lessees of twenty per.cent, of the amount invested in the Texas property, and a 10 per cent, fee for services in clearing the land and preparing for the first crop by lessors to be paid at Buffalo, N. Y., in semi-annual installments, where no proofs tending to show any intent to evade the statute were offered, held, that the rental was recoverable as such and no usurious conditions had been shown. Cf. 2 Comp. Laws 1915, § 5998.
    2. Same — Interest.
    Interest is a charge for the loan or forbearance of money. In order to bring a contract within the theory of the statute, the use of money, or a debt, must be the basis of the transaction.
    3. Appeal and Error — Harmless Error.
    A correct result reached by the trial court will be affirmed on error, even if a wrong reason therefor be given.
    4. Frauds, Statute of — Sufficiency of Writing.
    In a lease for more than one year, in which the rental was fixed at twenty per. cent, of the amount invested, which was made certain by other provisions, and though no amount was named the terms were not left in uncertainty, no further or more explicit provisions as to rental were demanded to bring it within the requirements of the statute of frauds.

      Error to Berrien; Bridgman, J.
    Submitted April 12, 1916.
    (Docket No. 111.)
    Decided June 1, 1916.
    Assumpsit by Milo D. Eames and another against Herbert O. Barber and others for the recovery of an installment of rent. Judgment for defendants on a verdict directed by the court. Plaintiffs bring error.
    Reversed.

      Gore & Harvey (Joseph H. Morey, of counsel, for appellants.

      Coolidge & White (C. C. Flansburg, of counsel), for appellees.
    Plaintiffs sued to recover an instalinient of rent reserved in a certain indenture of lease, declaring specially, With a plea of the general issue defendants gave notice that upon the trial they would maintain that the said indenture on its face authorizes the taking by plaintiffs of “a greater sum or value for the use, loan, detention, or forbearance of money than is allowed by the law of the State of New York,” where the agreement was to be performed, and where the indenture was executed, and that under the laws of the State of Texas, where the writing was executed and where the land described therein is situated—
    “whenever a contract authorizes on its face the taking and receipting of a greater sum or value for the use, loan, detention, or forbearance of money than 10 per cent, per annum the interest authorized by such contract becomes forfeitable, and the plaintiff who brings action upon such contract can recover no interest by reason of usury; that the said writing on its face authorizes the reservation of 20 per cent, per annum for the use, loan, forbearance, or detention of money, and the defendants claim that no recovery can be had upon the said writing by virtue of the said law of the State of Texas.

      “The defendants will further snow and insist that the 20 per cent, to be paid annually by the defendants to the plaintiffs upon certain sums of money mentioned in said writing is of the nature of interest on sums of money advanced or to be advanced by plaintiffs for the use of the defendants and intended by the parties to said writing as interest, and that by the laws of both the States of Texas and New York said contract in said writing contained is usurious, and that under the laws of both the States of Texas and New York no recovery can be had upon said writing by the plaintiffs against the defendants by reason of the usurious interest authorized by said writing.”
    Notice is given, too, of the claim that the writing was procured by fraudulent representations and promises of plaintiffs. Upon the trial counsel for both parties moved the court for a peremptory verdict; the grounds of defendants’ motion being:

      First, that the lease was a contract required to be in writing, and it does not satisfy the statute of frauds.

      Second, that the contract (lease) is a usurious contract, and therefore wholly void, and, in consequence, the demand sued upon is a usurious demand.
    The court charged.the jury to return a verdict for the defendants; the sole ground for the ruling being that under the laws of either New York or Texas the contract was usurious. Such a verdict was returned and upon it a judgment for defendants was rendered.
    In this court the first ground asserted in moving for a directed verdict is again asserted by defendants as ground for sustaining the judgment; the proposition being:
    “That the contract declared upon is void as a lease or as an agreement for a lease under the statute of frauds, because it does not express the substantial terms required in such an instrument nor the rental prices to be paid with such certainty that they can be understood without resort to parol evidence.”
    The indenture referred to reads as follows:

      “This indenture made this 6th day of May, 1909, between Milo D. Eames and Edward A. Eames, both of. the city of Buffalo, county of Erie, and State of New York, parties of the first part (hereinafter called the lessors), and H. O. Barber and E. E. Barber, of Lincoln, Lancaster county, Nebraska, Charles E. Barber and H. K. Barber, of San Benito, county of Cameron, State of Texas, copartners, doing business under the firm name and style of TL O. Barber '& Sons/ parties of the second part (hereinafter called the lessees), witnesseth: • That the said lessors, for and in consideration of the rents, covenants, and agreements hereinafter contained on the part of the said lessees, their executors and administrators, to be paid and performed, have granted, demised, and let, and do by these presents grant, demise, and let, unto the said lessees, their executors and administrators, and the said lessees have agreed to, and do by these presents hereby take, all that tract or parcel of land situated in the county of Cameron, State of Texas, particularly known and described as block No. one hundred twenty (120) of the subdivision of the lands of the San Benito Land & Water Company as delineated upon and shown by a map' marked ‘Map of Lands of San Benito Land & Water Company in Concepcion de Carracitos Subdivided for Said Company by Sam A. Robertson, Civil Engineer/ said map being dated March 31, 1908, and being of record in the office of the county clerk of Cameron county, Texas.
    “To have and to hold the above-described premises, together with the appurtenances unto the said lessees, their executors and administrators, for the term of ten (10) years, to commence on the 1st day of January, 1910, and to end on the 1st day of January, 1920.
    “And the said lessees, parties of the second part, agree to pay to the said lessors, parties of the first part, yearly rent therefor in the amount each year of twenty (20) per cent, of the entire investment of the said lessors in said leased premises; the said investment being as follows:
    “(1) Purchase price of the said premises $10,400.
    “ (2) Total of all other moneys heretofore furnished or which may hereafter be furnished by the lessors to the lessees at their request for other purposes, including the clearing of the land, preparation for, and planting of the first crop.
    “ (3) Ten per cent, fee for services in clearing, preparing for, and planting first crop, as hereinafter provided.
    “The total of the above-mentioned items shall constitute the investment of the lessors in said property upon which the aforesaid rental of 20 per cent, shall be computed.
    “The said yearly rent in the amount of twenty (20) per cent, of the lessors’ said investment shall be paid in cash to the lessors at their office in the city of Buffalo, county of Erie, and State of New York, in two equal payments each year, one-half on the 1st day of January, and one-half on the 1st day of March in the year 1911, and one-half on the 1st day of January, and one-half on the 1st day of March in each and every year thereafter, to and including the year 1920; the rental for each year of said term being payable on the first days of January and March of the year following.
    “And it is expressly agreed that the lessees shall promptly clear the said land and prepare the same for and plant the first crop of sugar cane thereon prior to the beginning of said term, and that the lessors shall bear and defray the actual cost thereof, and furnish to the said lessees from time to time, as may be necessary, sufficient sums of money therefor, and in addition thereto shall pay to the said lessees upon the completion of said work a fee of ten (10) per cent, of the said cost of clearing, preparing for, and planting the first crop for their services in connection with the purchase of said land, and the management of the operations of clearing, et cetera, in this paragraph mentioned: Provided, however, that the total cost to said lessors for clearing, preparing for, and planting the first crop of sugar cane on said premises with water on the land in completed ditches, including said ten (10) per cent, fee, shall not exceed approximately fifty dollars ($50.00) per acre.
    “And the said lessees hereby especially covenant and agree that they shall and will pay for all necessary water for irrigation and other purposes, and shall furnish at their own cost and expense all tools, appliances, materials, labor, and repairs incident to or necessary for the proper cultivation of said premises and the maintenance thereof, and shall comply with all lawful regulations, and shall pay all lawful charges of the San Benito Land & Water Company with respect to the said leased premises.
    “And the said lessees further expressly covenant and agree that they will use, care for, and cultivate the said premises in a lawful, careful, and proper manner, and maintain in good condition said premises and the irrigation ditches to be constructed thereon, and shall not allow the accumulation of rubbish thereon, and shall prevent the establishment of noxious weeds or growths thereon.
    “And it is further expressly covenanted and agreed that the said lessees shall not let, sell, underlet, or assign over the said premises, or any part thereof, for the whole or any part of said term.
    “It is mutually covenanted and agreed that the said lessees shall have the right to remain in possession of the said premises for two months after the expiration of said term, to wit, until the 1st day of March, 1920, for the purpose only of removing therefrom the crops growing at the expiration of the term. And the said lessees expressly covenant and agree that on the 1st day of March, 1920, they will surrender unto the said lessors the said premises in good condition and in such condition that the marketable crop of sugar cane harvested thereon in the year 1919 shall weigh not less than ninety (90) per cent, of the weight of the marketable sugar cane harvested as the first crop, and shall then deliver to the said lessors the peaceable possession thereof.
    “And it is expressly covenanted and agreed that this lease-is made subject to a right of way over the said premises for a drainage ditch conveyed to Sam A. Robertson, trustee, by deed or contract made by George A. Fearnow and others, dated March 5, 1908, and recorded on pages 8 to 7 of Book Supplemental J of Cameron County Records, and to all the provisions of said lease or contract, all of the terms and conditions of which deed or contract the said lessees hereby covenant and agree to fulfill and perform.

      “And it is further expressly covenanted and agreed by and between the parties hereto that, if default be made in the due payment of the rent, or any part thereof, or if the said lessees shall violate any other covenant or agreement contained in this lease, then and in either case the said lessors shall have the right at their election to terminate this lease, and to re-enter upon the said premises upon first giving thirty (30) days’ notice of such election by serving the same personally upon the said lessees, or by posting the same in some conspicuous place upon the said premises.
    “In witness whereof the parties hereto have hereunto set their -hands and seals the day and year first above written.
    “Edw. A. Eames. [Seal.] “Milo D. Eames. [Seal.]
    “H. O. Barber. [Seal.]
    '“E. E. Barber. [Seal.]
    “Chas. E. Barber. [Seal.]
    “H. K. Barber. [Seal.]”
    As to plaintiffs it was acknowledged in Erie county, N. Y., as to Charles E. and H. K. Barber it was acknowledged in Cameron county, Tex., and as to H. O. and E. E. Barber in Lancaster county, Neb.; notarial certificates to this effect being indorsed upon or appended to the indenture. For four years the defendants paid the rent at the rate of $3,370 each year. The principal sum upon which the rent was computed was agreed to, and is shown by a letter written by defendants and received in evidence without objection, reading: >
    “On the stationery of H. O. Barber & Sons, real estate owners and operators of the Barber plantation, San Benito, Texas. In the left-hand corner are the names 'H. O. Barber, E. E. Barber, Lincoln, Nebraska.’ In the upper right-hand corner are the names 'C. E. Barber, H. K. Barber, San Benito. Texas.’ The other printed matter on the letter head is: 'Buy irrigated lands in the lower valley of the Rio Grande.’

      “ ‘San Benito, Texas, February 10,1911.
    “ ‘Mr. Edward A. Eames,
    “ ‘Buffalo, New York.
    “ ‘Dear Sir:

    “ T inclose herewith statement of your account, or, rather, investment, as our records show it. As stated in my letter to you, this shows the permanent investment to be $16,852. As regards the $48 taxes, this was for year 1909, due November 1st that year, and became delinquent February 1,1910. Owing to failure to publish notice far enough in advance, the penalty did not apply. You had no rent due until January 1, 1911, so that we could not pay the 1909 taxes from this. You wrote asking me to pay these taxes! Think this may give you a clearer understanding of the whole transaction. I send $10 to pay interest for the delay in remitting. I believe we are entitled to an extra credit instead of owing you a balance of $1.56 on interest.
    “ ‘Yours truly,
    “‘Charles E. Barber/
    “ ‘Statement. San Benito, Texas, February 9, 1911. Messrs. Eames Bros, in Account with H. O. Barber & Sons, Flour and Feed’ — the heading of the paper.
    “ ‘1909.
    April 17. Draft, credit ................ $3,700.00
    April 23. Draft, credit .................... 500.00
    May 1. Draft, credit ...................... 500.00
    May 18. Draft, credit ...................... -500.00
    June 30. Draft, credit ..................... 500.00
    July 30. Draft, credit ..................... 500.00
    October 9. Draft, credit .................... 500.00
    November 6. Draft, credit ................ 500.00
    November 26. Draft, credit ................ 500.00
    . December 4. Draft, credit ................ - 500.00
    December 11. Draft, credit ................ 2,000.00
    Outstanding notes ........................... 6,400.00
    Earnest money ..................... 300.00
    Debit, 1910.
    March 17. Taxes ........................... 48.00
    Balance, credit to the Barber Account... .$16,852.00”’
    Upon cross-examination of plaintiff ’ Edward A. Eames (the only witness called for plaintiffs) there was offered in evidence by defendants and received over the objection of plaintiffs a memorandum of agreement reading:
    “Memorandum of agreement between Milo D. Eames, single, and Edward A. Eames, of Buffalo, N. Y., parties of the first part, and H. O. Barber, E. E. Barber, Chas. E. Barber, and H. K. Barber, copartners, of San Benito, Tex., parties of the second part, witnesseth:
    “That in consideration of one dollar interchangeably* paid, and in consideration of agreements hereinafter made by parties of the second part, the parties of the first part hereby agree:

      “First. That said first parties will furnish to said second parties, as may be necessary, sufficient moneys to purchase, clear, break, and plant in cane all of that tract of land known and described as follows: Block No. 102 of the subdivision of the lands of the San Benito Land & Water Company as delineated upon and shown by a map marked ‘Map of Lands of San Benito Land & Water Company in Concepcion de Carricitos, Subdivided for Said Company by Sam A. Robertson, Civil Engineer,’ said map being dated March 31,1908, and being of record in the office of the county clerk of Cameron county, Texas.

      “Second. Said parties of the first part agree to lease to said second parties all of the above-described tract of land for a term of ten years beginning January 1, 1910, and ending January 1, 1920, with possession for removal of crops until March 1, 1920, for a price to-be determined in a manner hereinafter described.

      “Third. Said parties of the first part agree to pay to said second parties 10 per cent, of the cost of clearing, preparation for, and planting of the first crop, as a fee for management of the operation^ 'described above in this paragraph, and for all services in connection with the purchase of the land as herein described.
    “In consideration of the foregoing agreements the parties of the second part hereby agree:

      “First. To promptly purchase and transfer to parties of the first part all of the land described above and to furnish said first parties a good and sufficient deed to same, and also an abstract of title satisfactory to first parties.

      “Second. The parties of the second part agree to lease from said first parties all of the above-described land for the above-mentioned ten years from January 1, 1910, at an annual rental in cash of 20 per cent, of the total investment (to be described below), payable at Buffalo, N. Y., the payment of rental to begin January 1,1911, and to be payable one-half in cash January 1st, balance in cash March 1st, of each year.

      “Third. Said second parties agree to turn over to said first parties at the expiration of this lease all of the above-described tract of land in such condition that the marketable cane harvested in 1919 shall weigh not less than 90 per cent, of the weight of the marketable cane harvested as the first crop.

      “Fourth. Parties of the second part agree to supply all the necessary water for irrigation and other purposes, tools, appliances, materials, labor, and repairs, except as herein specifically provided.
    “It is hereby mutually agreed and understood:

      “First. That the purchase price of the above-mentioned tract of land shall not exceed $65.00 per acre, and that the total additional cost to said first parties shall not exceed approximately $50.00 per acre planted in cane with water on the land in completed ditches.

      “Second. So far as a basis for determining the annual rental above-mentioned is concerned, ‘investment’ shall consist of the total outlay required of the parties of the first part under this agreement.

      “Third. It is understood that the parties of the second part will care for and operate the above-mentioned land in. a careful and proper manner, not allowing the accumulation of rubbish thereon and preventing the establishment of noxious weeds or growths thereon. v

      “Fourth. This agreement contemplares payment by said first parties:
    “ (a.) For the purchase of the land.

      “(b) Preparation of the land for and the planting of the first crop.
    “(c) A fee for services.
    “Except for these three items more particularly described above, parties of the first part shall not be expected to make any further payments.

      “Signed by second parties subject to their ability to purchase the land at a price satisfactory to said first parties.
    “Signed in duplicate this 6th day of March, 1909, at San Benito, Texas.
    “Milo D. Eames.
    “Edward A. Eames.
    “H. O. Barber.
    “Chas. E. Barber.
    “H. K. Barber.”
    There was also introduced (this without objection) a deed made by George A. Fearnow and wife to plaintiffs of the land described in the foregoing indenture, reciting a consideration of $10,400.
    Testimony tends to prove that the land described in the deed and lease was, when purchased by plaintiffs, wild, covered with mesquite and cactus, so that it was necessary to grub it, plow it, fence it, make ditches for irrigation, and seed it for sugar cane, in order to make it productive.
    The highest rate of interest allowed in Texas is 10 per cent., in New York 6 per cent., per annum. By the laws of Texas all written contracts which provide for a rate of interest greater than 10 per cent, are void as to the interest money. By the laws of New York all usury contracts (there are certain exceptions) are void. As stated in defendants’ brief, the contention respecting usury is:
    “That portion of the contract [lease] contained in clause No. 2, above quoted, is clearly usurious on its face. The moneys Referred to do not constitute any part of the purchase price of the lands’ nor anything upon which real estate rentals can be based. It relates solely to moneys advanced by the lessors to the lessees for the benefit of the lessees to be paid back in ten equal installments. The amount paid for the purchase price of the lands was $10,400. The total amount of the moneys paid out, including the purchase price of the lands, was $16,852. After deducting the 10 per cent, fee for services and the purchase price, there would be left the sum of $5,806.80 as the amount of moneys advanced by the lessors to the lessees and for which an indebtedness came into being. This money was to be furnished to the lessees from time to time to enable them to clear the land, plough it, ditch it, and plant the cane for their own benefit. Of this there is no dispute. * * *
    “It is claimed by the plaintiffs that no indebtedness arose because the principal sum advanced was never to be paid back. We insist that the principal sum of money advanced by the plaintiffs to the lessees was to be paid back by the terms of the contract together with an exorbitant rate of interest. The repayment of principal with interest was to be paid in 20 semiannual installments, payable the 1st days of January and March in each year. These installments would amount to $580.68 twice each year under the second clause quoted. Allowing the plaintiffs 10 per cent, for the use of this money at each payment of $580.68, one-half of the amount paid would legally apply on the principal and reduce it proportionately.
    “By calculation we find that at the end of ten years the lessors, by paying according to the terms of the contract, would have paid to the plaintiffs the principal sum of $5,806.80, together with interest at 15 per cent, and a trifle over. By no process of ingenious reasoning can it be seriously contended that the payment of 20 per cent, per annum or 10 per cent, semiannually upon the moneys advanced by the plaintiffs directly to the lessees, not for the purchase of the lands for the plaintiffs, but for necessities of the lessees in clearing the land for their own use and purchasing material necessary for that purpose, could be regarded as a rental of land. Calling it by that term was a mere scheme to avoid usury laws. It is similar to a transaction which, taking the form of or creating or purchasing an annuity, is on the footing of a loan or borrowing of money, and is put in such form as a device to cover the exaction of illegal interest. Such a transaction is usurious.”
    I quote further from defendants’ brief:
    “Although it may be that, where the rental of land is fixed upon a percentage basis, and that percentage exceeds the lawful rate of interest, the contract might be good and enforceable, still if, in the same contract, there is an agreement to furnish other money at an' illegal rate of interest, that portion of the contract taints the whole contract, the entire agreement, and renders it unenforceable. In other words, if there are several considerations for one promise, and one of them is illegal, the whole promise will be unenforceable ; it being impossible to tell which one of the many considerations induced the promise.”
    For plaintiffs, appellants, it is contended:
    “(1) That the burden of proof is on the defendants to establish usury.
    “(2) That to establish usury there must be a loan of money, or the forbearance of an indebtedness.
    “(3) That, where the transaction does not involve the loan of money, or the forbearance of an indebtedness upon its face, to have usury it must be proven that the transaction was a mere device to cover usury, and that the real intention of the parties was to make a loan, or create an indebtedness for the forbearance of which interest is to be paid.
    “(4) In such a case that such was the intent of the parties, is material, and must be proved to establish usury.
    “(5) That in this case the transaction on its face did not involve a loan of money, nor the forbearance of an indebtedness, and that there is no evidence of any intention on the part of any of the parties to make a loan of money, or for the forbearance of any indebtedness.
    “(6) That accordingly the defense of usury fails, and that therefore, the trial court having held with the plaintiffs on every other question in the case but the question of usury, the judgment must be reversed.”
   Ostrander, J.

(after stating the facts). 1. The statute of the State of Texas defines interest as:

“The compensation allowed by law or fixed by the parties to a contract for the use or forbearance or detention of money.” Article 4973, Revised Civil Statutes.

So by the statute of New York:

“The rate of interest upon the loan or forbearance of any money, goods or things in action, except as otherwise provided by law, shall be six dollars upon one hundred dollars, for one year, and at that rate, for a greater or less sum, or for a longer or shorter time.”

Consolidated Laws of the State of New York (1909), vol. 2, pp. 1253, 1259, § 370 et seq.

So our own statute (2 How. Stat. [2d Ed.], § 2870 [2 Comp. Laws 1915, § 5998]) is:

“No bond, bill, note, contract or assurance, made or given for or upon a consideration or contract, whereby or whereon a greater rate of interest has been, directly or indirectly, reserved, taken or received, than is allowed by law, shall be thereby rendered void; but in any action brought by any person on such usurious contract or assurance, except as is provided in the following section, if it shall appear that a greater rate of interest has been, directly or indirectly, reserved,, taken or received, than is allowed by law, the defendant shall not be compelled to pay any interest thereon.”

In each State what the statute condemns is taking or receiving directly or indirectly, more than the legal rate of interest. The contract is not avoided; the loss of interest is the penalty.

While a statutory definition of interest may change the definition of usury, there is nothing in the statutes I have referred to which forbids the acceptance of the common idea that interest is a charge for the loan or forbearance of money. See, generally, 39 Cyc. p, 888 et seq.; 29 Am. & Eng. Enc. Law (2d Ed.), p. 453.

The lease affords no evidence of a loan by plaintiffs to defendants. Its reasonable, and, unless the imagination is employed, its necessary, interpretation negatives the idea of a loan to defendants. Defendants’ term began after the land had been fitted and seeded. It is immaterial that they, instead of some one else, superintended the fitting and seeding, at the expense of plaintiffs, or that they even performed the necessary labor and furnished the necessary materials. Suppose that a barn on premises was needed, and the owner undertook to erect it before the tenant’s term began, permitting the tenant to erect it at the owner’s expense, the rent being fixed with reference to the improved premises; in such a case it could not be reasonably contended that the cost of the barn was a loan to the tenant. I can see no difference between the supposed case and the one presented by the terms of the lease. Assuming that the contract which preceded the making of the lease may be resorted to and its terms and those of the lease be considered together, there is then nothing which supports a construction of the lease other than the one indicated. Clearly there is no lawful objection to fixing the rental in terms of a percentage of the total cost of the premises. Defendants, appellees, rely upon Rosen v. Rosen, 159 Mich. 72 (123 N. W. 559, 134 Am. St. Rep. 712); Fisher v. Hoover, 3 Tex. Civ. App. 81 (21 S. W. 930), and other cases as sustaining the doctrine that usury may exist when there is no actual loan of money. Since defendants assert, and assert only, that there was a loan — an advancement — of money to defendants, the proposition stated is not, if sound, of particular interest. However, one has only to read the opinions in the cases cited to see that in each use of money, a debt, was the foundation of the exaction complained about. It is assumed, each party having moved for a directed verdict, that there was no conflicting oral testimony tending, by inference or otherwise, to prove an intention of the parties other than the one to be found in the terms of. the lease. It is asserted in the brief for appellants that there is no such testimony, and defendants’ brief refers us to none, tending to prove that the lease was a mere device for exacting usury — unlawful interest. It may be conceded that the plaintiffs desired to make a profitable investment of their money, but they did not lend it to defendants, and no debt was created for the amount invested. The intention to exact usury is not proven.

2. For appellants it is contended that this cburt should refuse to consider whether the verdict and judgment are in any event right, and should enter a judgment for plaintiffs for the amount of past due rent and interest, plus the amount of unpaid water rental. It is the general rule that an appellate court does not concern itself with errors claimed to have been committed against the appellee. Hughes v. Railway Co., 78 Mich. 399 (44 N. W. 396); Bowsher v. Railway Co., 174 Mich. 339, 345 (140 N. W. 524). But, when an issue determinable as matter of law is determined by the court, and a wrong reason assigned for the ruling, the proper administration of the law does not require a reversal if the ruling is nevertheless right. In Ehinger v. Graham, 190 Mich. 132 (155 N. W. 747, 750), it was said:

“We think the circuit court reached the correct conclusion (although its reasons stated therefor were insufficient) ,”

and affirmed the judgment. In Lentz v. Insurance Co., 96 Mich. 445 (55 N. W. 993), it appeared that three grounds of defense to an action on a policy of insurance were asserted. Upon one of them the court directed a verdict for defendant. It was said, 96 Mich. 446 (55 N. W. 994):

“If it appears that there is any conclusive reason why no recovery should be had, the judgment should not be disturbed.”

A considerable number of similar cases are collected in 1 Mich. Digest, § 854.

In the case at bar the record includes the lease, and the laws of Texas and of New York were proved. It appears to be agreed — at least nothing to the contrary is asserted — that the point is one of law which the court below should and, appellants say, did determine. It is- also a question certain to be raised upon a new trial. Therefore, in my opinion, it should be considered.

The contract is for leasing for a longer period than one year. By the laws of New York and of Texas it is required to be in writing. It is in writing. Is there omitted from the writing anything essential to the contract which it attempts to evidence? If not, then it is not necessary to further test it by the laws of either State. The lease was executed in June and in July and August, 1909. It described the investment made and to be made by the lessors, upon the total of which, the rental was to be reckoned. The terms of the lease are not uncertain. No element of a lease of lands is omitted. The precise amount of rent reserved is not stated; nor is it in a lease of lands for agricultural purposes where rent in kind from crops to be raised is reserved; nor in leases for a considerable period of time during which an appraisal, or successive appraisals, of the property rented is by agreement to be the basis of the rent charge. See Rayburn v. Lumber Co., 57 Mich. 273 (23 N. W. 811); Lamb v. Hydraulic Co., 59 Mich. 597 (26 N. W. 785); Camp v. Moreman, 84 Ky. 635 (2 S. W. 179); Vindquest v. Perky, 16 Neb. 284 (20 N. W. 301); Atwood v. Cobb, 16 Pick. (Mass.) 227 (26 Am. Dec. 657); 2 Page on Contracts, § 704. Beyond this the term began after the expenditures had been made, the amount expended has been agreed to, and for four years the rent reserved in the lease was paid.

The court below- was in error in ruling that the contract was usurious, and right in ruling that the lease was not affected by the statute of frauds of either New York or Texas.

We are referred to no testimony which supports a recovery for the unpaid water rentals.

The judgment is reversed, with costs to appellants, and a new trial granted.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    McDANIELS v. CROSBY.
    1. Witnesses — Estates of Decedents — Matters Equally Within Knowledge of Deceased.
    In equity proceedings to recover certain property or its value, where the hill alleges that the property was deeded to complainant, and the deed, without being recorded, was destroyed by deceased and her beneficiaries, confederating together, the suit being defended by them and the personal representative of deceased, the testimony of complainant was not admissible under 3 Comp. Laws, § 10212 (3 Comp. Laws 1915, § 12553), excluding testimony as to matters equally within knowledge of deceased.
    2. Same — Trusts—Pursuing Trust Funds.
    The same rule applies in an attempt to pursue a trust fund.
    3. Same — Lost Instruments — Delivery.
    While there was some testimony other than that given by complainant which tended to prove the execution of the deed to complainant, upon complainant’s testimony alone rested the delivery of the deed, and, held, the competent testimony upon the delivery of the deed with intent to vest title in complainant was insufficient.

      Appeal from Wayne; Gilday, J., presiding.
    Submitted April 4, 1916.
    (Docket No. 3.)
    Decided June 1, 1916.
    Bill by Lottie E. McDaniels against Fannie Whitaker Crosby and others to have certain property or its value restored to complainant. From a decree for defendants, complainant appeals.
    Affirmed.

      Lee N. Brown, for complainant.

      George W. Eyster (Earle M. French, of counsel), for defendants.
   Ostrander, J.

John Whitaker and Amelia Whitaker were husband and wife. The husband died, probably in August, 1903, and, it is assumed, he left no estate. Amelia died testate in March, 1913. The value of her estate, of what it consisted, and how it was disposed of, is not made to appear. Some time after the death of her husband, Amelia sold and conveyed certain premises known as lot 29 in Belleville, Wayne county, which she owned, receiving therefor $1,300. The date of this conveyance I do not find stated in the bill of complaint, or in the statement of facts in complainant’s brief. In the brief for defendants it is said it was in 1910. This sum, or $1,250 'of it, she expended in a building she caused to be erected upon a farm which she and her husband had conveyed to Walter Whitaker, in which premises Amelia had a life estate. The complainant, Lottie McDaniels, is not described in the bill of complaint as related to John or Amelia Whitaker, but in the brief for complainant is called “their niece.” She filed her bill of complaint in this cause December 11, 1914. The theory of the bill and of her asserted right is not distinctly stated in her brief, but it is charged in the bill that in consideration of personal services which the complainant rendered to John Whitaker in his lifetime, as well as some rendered to Amelia, it was understood between John and Amelia and complainant that after the death of John, Amelia should convey, to complainant the above-described premises, and that Amelia did execute a warranty deed of the premises pursuant to this understanding, delivering it to complainant, who kept it for some time and then gave it to Amelia to keep for her until she should call for it. It was not recorded. The deed being so in the custody of Amelia, the defendants Whitaker, conspiring and confederating together, to that end, secured the consent of Amelia that the said deed should be destroyed, and thereafter these confederates, with another, who is the executor of Amelia, caused the said deed to be burned and destroyed, and Amelia sold the property. The court is asked to decree that:

“The said defendants, who are abundantly able, and who now hold all of the property that they have procured by this fraudulent destruction of this deed — the said defendant estate and the said defendant beneficiaries of the said, defendant estate, who so participated in the said destruction of the said deed — to either return the said property for which the said destroyed deed called, or the value thereof, to this complainant, and that the said value thereof, in the event that they, the said defendants, do not forthwith procure for her a title to the said lot 29 in the village of Belleville, the deed for which they destroyed, that then the amount that was procured by the said defendants for the said lot when the same was sold, together witn the interest thereon, be declared a lien on the estate of the said Amelia Whitaker, deceased, and a lien on the property procured from the said Amelia Whitaker by either and both of the other defendants either before the death of Amelia Whitaker or such property as they, or either of them, received from the estate of Amelia Whitaker, deceased, after her death, to the end that full and complete retribution and satisfaction of the said'property which the said complainant was so fraudulently swindled out of by the said destruction of the said deed shall be returned to her with the interest thereon, and that the amount found due shall be a lien on any and all the property possessed by any and all of the said defendants to this cause.”

Sworn answers were filed by each defendant, the executor representing the estate, and in each most of the material allegations are expressly denied.

The theory of the bill seems to be that the estate of Amelia Whitaker was augmented by the sum she received from the sale of complainant’s property, and that the estate, or the confederating beneficiaries, ought, in equity, to restore to complainant the value of what she thereby lost. In this view the suit is defended by the legatees and personal representative of a deceased person, and complainant is not admitted to testify at all to matters which, if true, must have been equally within the knowledge of such deceased person. 5 How. Stat. (2d Ed.) § 12856; 3 Comp. Laws, § 10212 (3 Comp. Laws 1915, § 12553). Considered as an attempt to pursue a trust fund, the same rule applies. There is some testimony other than that given by complainant which tends to prove the execution by Amelia of a deed of said premises to complainant. There is other testimony tending to prove that such a deed was seen in the possession of complainant. But upon complainant’s testimony alone rests the delivery of the deed, its return by her to Amelia, and the conditions of said return. Complainant admits that it was understood that she was to execute to Amelia a life lease of the premises, and that this was not done. It is clear that if the deed was not delivered to complainant for the purpose of passing the title she has lost nothing, and if she did not return the deed to Amelia, it was ,not destroyed by Amelia, or with her knowledge and consent. And there is to be considered the admitted action of Amelia in selling and deeding the property to another and innocent vendee. It further appears that when the will of Amelia was proposed for probate (the will is not before us) complainant contested the probating thereof. While the record upon this subject is not clear, it seems that the contest reached the circuit court for the county of Wayne, and was pending in November, 1914, about a month before the bill in this cause was filed. It further appears that in the probate court complainant was a witness. At the hearing of the present suit her testimony there given was referred to upon the cross-examination of complainant by reading from a transcript of the stenographer’s minutes:

“The Court: Read the questions and answers and ask her if she so testified.
“Q. ‘Q. Do you know anything about the property that was left to her by her husband?’ (that refers to Amelia Whitaker; that is a question asked in the probate court). Your answer was, ‘There was $6,000 in the bank at Ypsilanti when my uncle died.’ ‘Q. And was that the Ypsilanti Savings Bank?’ Now your answer was this: T think it would be, it was. in the bank at Ypsilanti; anyhow, there was a house and lot that my uncle lived in in her name, too. She was to have given me that and taken a life lease as soon as he was dead. She said when she felt able to go she would go down to the office and have it fixed up. She drank a good deal and was not able to go.’
“A. If I did, I didn’t understand their question because I didn’t mean to say that she didn’t make that deed because she did.
“Q. Answer yes or no ? * * *
“A. Whatever testimony I gave there I naturally was telling the truth, but I must have misunderstood it or something because the deed was made and I had the deed. I calculated it was mine, but they was probating the will, and we wasn’t proving up the deed then.
“Mr. Brown: In regard to that lease, the lease wasn’t made then?
“A. No.
“Q. And it was the lease that you referred to?
“A. Yes.
“Q. That is all.
“By Mr. Eyster (continuing):
“Q. Now, Mrs. McDaniels, you received $300 to withdraw the objection?
“A. To settle the bill, but that was in regard to the will.
“Q. In your testimony in the probate court, inv this will contest case on cross-examination, do you remember the time I cross-examined you in the probate court nearly two years ago, I asked you this question: ‘Q. Do you know what became of this lot that you claim you are interested in, the lot in the village of Belle-ville? A. I have heard that she sold the house and lot which I was to have.’
“The Court: Was that question asked you, and was that the answer you made to it?
“A. It might be; I couldn’t tell. The will was in question then.
“The Court: If you did so answer, was it true?
“A. Yes; I heard she sold the house and lot; yes.
“Q. T heard she sold the house and lot which I was to have’?
“A. Yes.
“Q. The next question: ‘Q. She didn’t own that when she died, did she? A. No, sir; not after she sold it.’ That was true, was it not?
“A. Of course, after she sold it.
“Q. ‘Now that is the only way in which you are interested in this estate, because of the clause in the first will here? A. I was to have the house and lot, yes, that was the only interest.’
“Q. The next question: ‘Q. Then that is the only interest? A. My uncle claimed— Q. I want to know what your interest was; that is the only interest you have; that is all you are claiming? A. No, sir; I had a part of the money, my uncle told me. Now I had some trouble with my husband, and I said I didn’t know whether I could live with him, and he said: “Don’t take any of his lip; there is enough property to take care of you as long as you live.” That is what he told me.’ Is that true?
“A. Yes. sir.
“Q. ‘She should have given me a part of the money. I find in the will that she has just gave me the house and lot.’ That is true?
“A. Yes, sir.
“Q. ‘And that is the only interest you had. A. That is all the interest which she gave me in that will.’ Is that true?
“A. Yes, in the will; yes.
“Q. ‘And what is your claim now, do you want the first will to stand? A. If any will stands, I want the first one, the first one.’ Is that true?
“A. I want the value of the house and lot — that is what I want now — and the interest on the money, because it was mine.”

From this it may be inferred that Amelia made two wills, in the first of which complainant was devised the premises in question. It also appears that in the will contest, in the circuit court, complainant, in consideration of $300, withdrew her objections to the probating of the will.

According to her own testimony, complainant never sought to have the deed returned to her after she had returned it to Amelia. She had no possession of the property and exercised no dominion over it. She heard, she says, that Amelia had . sold it, but did not believe the report nor make any investigation. In its entirety the competent testimony upon the subject of the delivery of the deed with intent to' vest title in complainant is, not convincing. Beyond this, I am not satisfied that any connivance of defendants, any conspiracy, to induce Amelia to destroy the deed is proven, or that the testimony proves the destruction of a deed by Amelia or any one else. As is usual in cases like this one, the facts necessary to be established are interrelated so that, one essential fact being clearly established, other alleged facts appear to be more probable. Naturally, inferences from established facts are used to support others, not well established, but which established facts make probable. In this case, after a careful consideration of all of the testimony, giving it its full probative value, it appears to me that complainant has not proven the facts asserted and relied upon by her. In this view, no legal propositions require discussion or statement.

The court below dismissed the bill, and in this action is affirmed. Defendants will recover costs of this appeal.

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


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    JOLMAN v. ALBERTS.
    1. Res Judicata — Judgment—Appeal and' Error — Pleading.
    A decision on appeal in a former suit between the same parties, that a count stated a cause of action, became and is the law of the case.
    2. Appeal and Error — Trial—Instructions.
    Where a question was raised by plaintiff’s counsel in his opening statement, and the court, before any evidence was submitted, declined to instruct the jury on the question, saying it was dependent upon the proof that might be put in, and later, when evidence was offered, no objection was made by defendant, the latter was not prejudiced by the ruling of the court.
    3. Evidence — Res Gestae — Compromise—Admissions.
    In an action for personal injuries caused by defendant’s automobile colliding with a buggy in which plaintiff was seated, evidence by plaintiff’s husband that immediately after the accident defendant offered to pay for having “the rig” repaired was admissible as res gestas.

      4. Appeal and Error — Lights—Evidence.
    In such action, where the court ruled .out questions permitting defendant to explain why he did not have his “big lights” on, and later withdrew from the jury the question as to lights entirely, instructing them that defendant's car was lighted in conformity with law, the rulings were either favorable to defendant or were correctly made.
    5. Negligence — Automobiles—Lights.
    Where defendant, who was a witness in his own hehalf, claimed he could not see because of the intense lights of an approaching automobile, that he was driving at a speed of but four or five miles an hour, and did not see the buggy until he was within a few feet of it, when he thought he could pass it, it was a question for the jury, whether, under all the facts, defendant was negligent.
    6. Evidence — Secondary Evidence — X-Ray Picture — Expert Witnesses.
    The court was not in error in rejecting testimony by a medical expert as to what an X-ray picture showed, where the absence of the picture itself was unaccounted for.
    7. Trial — Instructions—Negligence.
    It was not error for the court to instruct the jury that the evidence was given to place them in the situation of the parties, and enable them to say whether, under all the circumstances, defendant was guilty of negligence.
    Error to Muskegon; Sullivan, J.
    Submitted April 10, 1916.
    (Docket No. 46.)
    Decided June 1, 1916.
    Case by Sadie Jolman against Frank Alberts for personal injuries. Judgment for olaintiff. Defendant brings error.
    Affirmed.

      Clink & Farmer, for appellant.

      Carpenter & Jackson, for appellee.
   Ostrander, J.

The testimony introduced on the part of the plaintiff tended to prove that plaintiff’s husband had driven his horse to the curb on a paved street in the city of Muskegon; the buggy in which plaintiff was sitting being so close to the curb that she stepped into the buggy from the curb. Horse and buggy were headed south, and were on the west side of the street. It was about 9 o’clock in the evening, the nearest electric light was not burning, and the shade or shadow cast by nearby trees did not make discovery of the buggy on that account difficult. Defendant, going south on the street, ran his automobile against the buggy, and plaintiff was injured.

The court excluded from consideration two counts of the declaration, leaving one, the first, to be considered. In that count, it is alleged that defendant, riding in and driving an automobile along Peck, “a public street, * * * negligently and carelessly drove and guided said automobile so that it ran into a buggy standing on the west side of said street near the curb,” striking the buggy with such force as to break and crush it. It is contended, as it was when the cause was first before us (Jolman v. Alberts, 186 Mich. 643 [153 N. W. 11]); that this count states no cause of action. This contention we overruled, and the decision became and is the law of the case.

In his opening statement to the jury the attorney for plaintiff said, among other things, that a consequence of plaintiff’s injury was that for three years (she was injured in August, 1912) she has not been able to do her work; “to have her own enjoyment,\to go out in society as others go; to take care of her children as others do; to take her part in the family’s life. * * *99

Counsel for defendant, no testimony having been offered, asked the court to instruct the jury that:

“Under no circumstances are they to take into account whether or not Mrs. Jolman is less able to take care of her children than she was before. If she is less able to take care of her children and damages accrue, they don’t accrue to her, but to her husband, and he has an action pending now.”

The court declined to pass at that time upon the measure of damages, saying it was dependent entirely upon the proof that might be put in. There was an exception. The proof, so far as we are referred to it, was upon this subject given in answer to the question:

“What have you been able to do as to taking care of the children?”

The answer was:

“I haven’t done anything as far as taking care of— combing the children’s hair or helped them to dress, something of that sort.”

No objection to the question was interposed, or to the testimony. The argument made in the brief for appellant in this court proceeds no further than did the objection made at the trial. I cannot imagine how the ruling' excepted to prejudiced the appellant.

Plaintiff’s husband testified that defendant said, in substance, that he would’ pay for having the buggy or “the rig” repaired or fixed up. The court refused to strike out the testimony. The argument is that this statement could relate to no more than compromise, and it is against public policy to allow plaintiff to use it as an admission of liability. This statement, according to the testimony for plaintiff, was made almost immediately after the collision occurred. In the charge the court said the testimony was admitted as res gestae, to understand the transaction, and that the jury should give it such weight as they thought it was entitled to. It does not appear that appellant asked for any instruction upon the point. The exception must be overruled.

The headlights on defendant’s car were not burning; only some small kerosene lamps being lighted. Such lights as were burning could be seen for a considerable distance, but did not appreciably light the road for the driver. Defendant was asked why he did not have his “big, lights” on. The objection made was that the fact called for was immaterial, and the objection was sustained. The court also excluded answers to the questions:

“Mr. Alberts, do you know whether it is customary for careful drivers and operators of automobiles in cities on city streets to use the large headlights at all?”
“Do you know, Mr. Alberts, whether or not it is the custom of careful drivers and operators of automobiles in the city of Muskegon when driving their machines upon the streets of this city to use large headlights?”
“Let me ask this question, Mr. Alberts: What can you say as to what the custom was of careful drivers and operators of automobiles in the city of Muskegon as to running their cars on the streets of .the city lighted as your car was lighted that night, the night of this accident?”

Later on, during the argument of counsel for plaintiff, the court ruled that the preponderance of testimony showed that the defendant carried lawful lights; that his car was lighted in conformity with law. As has been stated, he withdrew from the jury the count in which failure to light the car was alleged as negligence, and counsel, when the ruling above referred to was made, withdrew his argument upon the subject of the headlights. The various rulings are involved by appellant’s third, fourth, fifth, sixth, eleventh, and twenty-seventh assignments of error, and perhaps by others. When it is considered that the governing statute cannot be construed as requiring headlights on automobiles for the sole purpose of warning persons not in the car, but must be construed as requiring them for the purpose of lighting the way for some distance for the driver of the car (Harnau v. Haight, 189 Mich. 600 [155 N. W. 563]), it appears that the rulings were either favorable to appellant or were correctly made. And these rulings and the exceptions based upon them are related closely to others, and to errors assigned upon the charge of the court. As has been stated, the appellant was a witness in his own behalf. He ascribes the collision to the fact that the lamps of an approaching automobile gave so intense a light that he could not well see objects in his path, and his testimony tends to prove that he was operating his car when and just before the collision occurred at a speed of but 4 or 5 miles an hour, and did not see the buggy until he was “within 8 or 10 or 12 feet of it”; that he did not intentionally strike it; that he thought he could go no further into the street without being struck by the approaching car, and supposed he could pass the buggy in which plaintiff was sitting. Witnesses for plaintiff testify that they saw appellant’s car approaching. 150 or 200 feet, running close to the curb.

It was a question for the jury whether, considering all of the facts as they found them to exist, appellant was prudent or' was careless in driving his car upon the buggy. And this ultimate fact was, I think, fairly submitted to the jury, and no error committed in the rulings complained about or in the charge upon this subject.

It appears that while plaintiff was in the hospital an X-ray picture was taken for the purpose of discovering whether her spine was injured — whether there was a dislocation of vertebrse. The picture was not produced at the trial. Counsel for appellant referred to it in argument, stating to the jury that:

“It was up to them to produce that picture, and we have a right to infer when they don’t produce it * * * that it is because that would have demonstrated conclusively that there was no subluxation of the vertebra there.”

The court interrupted counsel, saying no inference was to be drawn from the fact that the picture was not produced. An exception was taken. Dr. Jacob A. Cramer had been sworn as a witness for defendant. He testified that he made the X-ray picture. He was asked:

“Did you see any visible condition in Mrs. Jolman that indicated any injury to her spine?”

The answer was excluded. The witness then testified that he was present when the X-ray examination was made; was not present when any other examinat'ion was made; that the picture taken would show the condition of the plaintiff’s spine; that he examined the picture; that the last he saw of it was in the courtroom a year or so ago. He was asked:

“After making the X-ray examination that you did are you able to state whether or not there was an injury to the spine of Mrs. Jolman that would be or amount to a practical dislocation,”

the objection being that the question called for an interpretation of the picture and the picture was the best evidence. In the course of a colloquy the following occurred:

“Mr. Clink: Q. Have you tried to find that picture?
“A. Yes, sir; I just came from the hospital now.
“Mr. Cross: We would like to inquire of the plaintiff’s attorneys whether they have that picture or know where it is.
“Mr. Carpenter: We have never seen the picture, Mr. Cross. On the last trial you said you were going to get it, but you haven’t produced it. You may have it in the courtroom; I don’t know. We never had it.
“Mr. Cross: It was here on the first trial.
“Mr. Carpenter: No; it was not. You never gave that plate in evidence, and you never produced it in the courtroom, not in my presence.
“Mr. Cross: It was here, and the superintendent of the hospital was insisting that it be returned.
“Mr. Carpenter: I don’t doubt that you had it, as far as that is concerned, but we have never had it here; never seen it.
“Mr. Clink: Q. Did you go up to the hospital to ascertain about it, Doctor?
“A. Y went up there to look for it myself this afternoon, but I wasn’t able to find it.
“Mr. Clink: We certainly haven’t got it. It was here once. I don’t know what become of it.
“Mr. Carpenter: Your honor may remember that we waited for them some time to get that plate on the former trial, and it ended with their not producing it for the trial. I don’t know whether they had it or not. We never have had. it.
“Mr. Clink: I think now the absence of that picture is sufficiently accounted for, and I shall renew that question.
“Mr. Carpenter: I still .object, your honor. That doesn’t make it competent. * * *
“The Court: I will not receive it. I will not take the answer.
“Mr. Clink: On the theory that the picture is not sufficiently accounted for or that it is incompetent?
“The Court: Well, you ought to know.
“Mr. Clink: Yes? Give me an exception.
“Q. Doctor, are you able from what you know of this case, that is, the case of the claimed injury of the plaintiff, from whatever observation you have made, including what you learned through the X-ray picture which you took, to state whether or not there was a partial dislocation of the vertebrae of the spine of Mrs. Jolman at that time?
“Mr. Carpenter: That is objected to as incompetent, no knowledge on the part of the witness to answer the question, and is trying to renew the description of the picture.
“The Court: The question goes back to the X-ray picture, and I am going to sustain the objection.
“Mr. Cross: Exception. Are we to understand from that, your honor, that the witness will not be permitted to testify to anything that he learned from the X-ray?
“The Court: Yes; I will do that. Yes, sir; that is my idea about that.”

Exceptions were taken to the rulings. The court instructed the jury, in accordance with these rulings, that they were to assume nothing in relation to what the picture showed or did not show. There was no error in any of these rulings. The knowledge of the witness was derived from reading — interpreting—a picture. The picture was, of course, the best and only evidence of what it did or did not reveal. And, while it is matter of common knowledge that the correct reading of such a picture is a thing for experts, there could be no proper cross-examination of an expert interpreter in the absence of the thing interpreted.

Finally, it is alleged as error that the court said to the jury:

“The evidence in the case was given to place you in the situation of Mr. Alberts and to see the situation there that surrounded Mr. Alberts, with all the other circumstances and conditions and facts, so that you can take it all into consideration as to the parties up there, both Mr. Alberts and the plaintiff and her husband. * * * The evidence is put into the case so as to place you, as far as it may be, there at the place and time yourselves, and then say under your oaths whether it has been proven here by a preponderance of the evidence that Mr. Alberts did not do what an ordinarily careful and prudent man would have done under the circumstances, because the law says, and I instruct you, that the proof of the accident standing alone is not proof of negligence.”

The argument is:

“The rule laid down by this court prevents attorneys from arguing that any juror should place himself in the situation of either of the parties to the suit, and it is also error for the court to charge the jury in a like manner.”

This, I think, demands no comment save the one that counsel has entirely misapprehended the rulings of the court relative to proper argument of counsel.

In my opinion, reversible error is not made to appear, and therefore the judgment is affirmed.

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


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    BRUCE v. TAYLOR & MALISKEY.
    Master and Servant — Industrial Accident Board — Appeal and Error.
    An award of compensation for total disability because of a broken' ankle, for a period of 500 weeks, will not be disturbed if there was evidence to support the finding of total disability, though this court might have reached a different conclusion as a question of fact. Act No. 10, Extra Session 1912; 2 Comp. Laws 1915, § 5439 et seq.

    Certiorari to the Industrial Accident Board.
    Submitted April 11, 1916.
    (Docket No. 90.)
    Decided June 1, 1916.
    James Bruce presented his claim for compensation against Taylor & Maliskey for injury to claimant's right ankle. From an order awarding compensation for total disability, respondent and the Fidelity & Deposit Company of Maryland bring certiorari.
    Affirmed.

      Shields & Silsbee (Austin J. Spaulding, of counsel), for appellants.

      Lee & Parker, for appellee.
    Claimant was injured, his right ankle being broken. The defendant insurance company entered into an agreement with him to pay him compensation at the rate of $6.75 per week during the period of disability; the agreement being subject to the terms of the compensation act (2 Comp. Laws 1915, § 5423 et seq.) Claimant was paid for 124 weeks, and pay for an additional week was tendered, and a receipt in full demanded. Claimant refused to give a receipt, and the company applied to the Industrial Accident Board to be relieved from making payments beyond the period of 125 weeks.
    By the terms of the statute the period of disability for loss of a foot is deemed to be 125 weeks. Claimant testified at the hearing in part as follows:
    “I am not able to follow any work such as I had been following, that of a common laborer, and there is no work that I have been able to find at which I can earn a livelihood. My leg pains me all the time. I am able to stand on it by using my cane, and taking the weight off my foot, but when I put the leg on the ground, and try to stand on it, I suffer pain. I have recently noticed that there is a breaking out around the injured portion of the right ankle, which Dr. Tupper says is due to deficient circulation. * * * I am not ready at this time to take any treatment that might be recommended by a competent physician as a step toward improving my condition. I think it has gone so far that there is no use of it. I will let it, alone, and see. I will take a treatment, but not aiT| operation. That answer is given in view of the advice]' given me by my doctor, who said not to have any operad tion. After Dr. Tupper recommended me to the Murphy operation, I had a talk with Dr. McGregor, and he told me to let it alone and not have the operation. * * * The last time I did any work was at the time I received my injury, and I have not tried to do any work since. I have not made any effort to secure any employment that I am able to do without standing on my feet. * * *° The reason that I have not done that is because I am not able to. * * * My hands and arms are both in good shape. My left leg is all right. My right leg is all right down as far as the point where I was struck by the iron. There is a sore there (indicating a point on the leg) down to a point below my knee; my right leg is all right. My genefall health is good, and I have a good appetite, and except for my leg, I am a perfectly healthy man. * I have no education that enables me to take a clerical position, and when I sit down my leg pains me; the pain is with me all the time, and would interfere with me in any sitting down occupation.”
    Testimony of a physician was introduced which tended to prove that the condition of claimant can be, to an appreciable extent, remedied by a surgical operation. In part he said:
    “In a case similar to Mr. Bruce's case, they get such results that the injured man, at the conclusion of this. 12 months, is able to work, and stand on his feet, because they remove the very cause of the condition— that is, the removal of this bony tissue that is formed there, which impinges on the nerves, and that would have a tendency to cause pain. I believe in this case) an operation over a year ago would have remedied the_\> condition from which Mr. Brucejiow suffers. /Any operation would remedy it I think.) I said so Then, and I say so now. In my opinion, Hr, Bruce has not got now 10 per cent, of function in his foot. * * * Poor circulation caused the discolorations breaking out around the wound — a general weakness due to the circulation, which you always find in a wound of that kind. ’He has recovered so far as nature is concerned. It has formed a splint. He has recovered as much as he ever will, and so far as the usefulness is concerned, he is practically disabled with that ankle and foot at the present time. He does not appear to have recov- \ ered, but I contend that the man was totally disabled I from work. He has not gotten over the injury, and I see no immediate prospect for his recovery unless he] has the operation. That operation is not guesswork. " There is a certain per cent, of chances against him. It is not 40 per cent., but it is not guesswork. Murphy has got this work down to a science. * * * Following an operation on Mr. Bruce, after nature gets in her work of healing and cleaning up things — after the operation, assuming that the operation is not a success — his condition will not be any worse than now.. I don’t see áiiy reason why it should be. There is no great riskattending the operation, f The riskof ah" > operation is düe to the anesthetic';. They have got it01 down to an absolute science. There is not one fatality in 40,000.” '
    To the writ of certiorari the board returns as a part of its finding:
    “The position and claim of said Bruce is set forth in his answer to said petition as follows:
    ‘“That the conditions are not the same as though the undersigned had lost a foot in which case he could have had recourse to an artificial limb and gone on with some employment. As it now stands he is entirely disabled and denies that the petitioner is entitled to the relief asked.’
    “The board found from the evidence and the inspection of the injured limb that this claim was sustained. While no parts of the body except the foot and ankle in question are affected, the condition is such as to prevent the use of an artificial limb or appliance and to 9 disable Mr. Bruce from following his customary employment. Such condition so far has prevented him from following any employment. In the opinion of thel board the refusal of the defendant to submit to the! proposed operation, referred to in the petition, was not so unreasonable as to justify the stopping of hisjj compensation, the operation being a serious one and| the result doubtful.”

      Por a review of cases under the workmen’s compensation act, see note in L. R. A. 1916A, 409.

   Ostrander, J.

(after stating the facts). If claimant is totally disabled, his compensation must continue to be paid, not for longer than 500 weeks. Plaintiffs in certiorari argue that it is anomalous that he should be permitted to recover for a period greater than the one fixed for the total loss of his foot, and it is suggested that the statute (section 10) be construed to mean for the loss of a foot, or what is equivalent thereto.

Sections 9 and the applicable parts of section 10, part 2 of Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, §§ 5439, 5440), read:

“Sec. 9. While the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee a weekly compensation equal to one-half his average weekly wages, but not more than ten dollars nor less than four dollars a week; and in no case shall the period covered by such compensation be greater than five hundred weeks, nor shall the total amount of all compensation exceed four thousand dollars.
“Sec. 10. While the incapacity for work resulting from) the injury is partial, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee a weekly compensation equal to one-half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than ten dollars a week; and in no case shall the period covered by such compensation be greater than three hundred weeks from the date of the injury. In cases included by the following schedule the disability in each such case shall be deemed to continue for the period specified, and the compensation so paid for such injury shall bé as specified therein, to wit: * * * For the loss of a foot, fifty per centum of average weekly wages during one hundred and twenty-five weeks.”

,The board has found that claimant’s incapacity for work is total. It would seem that the finding might well have been that his incapacity is partial only, thus limiting payments to 300 weeks, in view of claimant’s admission that he had not tried to work since receiving, his injury, nor sought any employment other than such as .requires him to stand on his feet. However, I .think there is some testimony tending to support the finding. We cannot by construction of the statute make a case of partial incapacity for work when the fact is found that the incapacity is total.

The conclusion of the board will not be disturbed.

Stone, C. J., and Kuhn, Bird, Moore, Steers, Brooke, and Person, JJ., concurred.


text:
    PEOPLE v. BREEN.
    1. Trial — Evidence—Witnesses—Appeal and Error.
    Where one of the witnesses for the people, in a prosecution for larceny, proceeded to answer a question on cross-examination by respondent’s counsel, without waiting for a ruling of the court on an objection made by the prosecution, and substantially covered the: ground and purpose of the examiner, the respondent had no ground of complaint on error because the court sustained the objection.
    2. Same — Criminal Law — Evidence — Incriminating Prooes — Constitutional Law.
    The use of respondent’s shoes, that a .police officer had taken while respondent was in custody, for the purpose of comparing them with footprints of the respondent, was not an improper method of getting evidence, and did not force the accused to give evidence against himself.
    3. Same — Appeal and Error — Exception.
    A ruling of the court to which no exception was taken could not be reviewed on error.
    4. Same — Charge.
    It was not error to refuse to charge the jury, as requested by respondent, that they might reject the evidence of a witness if they found he had sworn falsely in regard to a material fact, etc., which contained no explanation in regard to corroborative evidence by other witnesses.

      5. Same — Witnesses.
    The court may of its own motion call the attention of the jury to the testimony of a particular witness and caution them regarding it; hut neither party may of right insist that the court so instruct the jurors.
    Error to Wayne; Van Zile, J.
    Submitted April 13, 1916.
    (Docket No. 125.)
    Decided June 1, 1916.
    Dennis Breen and Robert McKnight were convicted of breaking and entering an office in the nighttime with intent to commit larceny.
    Affirmed.

      Grant Fellows, Attorney General, Charles H. Jasnowski, Prosecuting Attorney, and Paul H. Voorhies, Assistant Prosecuting Attorney, for the people.

      Thomas L. Dalton and Thomas J. Mahon, for respondents.
    Four men, of whom appellants were two, were informed against for breaking and entering an office building not adjoining to Or occupied with a dwelling .house with intent to commit the crime of larceny, in the nighttime. One of the principal witnesses for the people at the trial was a Frank Mueller, who was with the defendants at least a portion of the time on the night in question. Having described his connection with the affair, he testified on cross-examination that he went to the police headquarters on the night following the commission of the alleged offense after having been asked by some detectives what he knew about this job, and told the officers all about it, or all he knew about it. He testified further, also upon cross-examination, that he had been an inmate of Ionia prison for two years, having been convicted of breaking and entering a butcher shop, and was asked:
    “Now, you were in fear yourself of being arrested for other crimes were you not at the time you made this statement to the police and sheriff?”
    This was objected to as improper, and the court ruled that it was improper; but the witness answered:
    “The officers have been talking to me right along for a time, about other things. About tires and a few other things. By tires I mean stolen tires.

      “Q. You mean that they came to you and spoke— suspected you?

      “A. They knew I had been hauling tires. I knew I was hauling stolen tires three or four months before this night. I hauled them where those fellows told me to.”
    The respondent being in custody, Breen’s shoes were taken by an officer, or officers, for the purpose of comparing them with certain footprints, and a deputy sheriff was permitted over objection to testify that they seemed to fit perfectly into the footprints. No one representing the respondent Breen, or any of the respondents, was present when the shoes were being put to this use. With respect to these alleged footprints, a witness for the people was asked upon direct examination: “What did you do with reference to protecting them?” He answered: “Ordered the men not to walk approximately across the shrubbery beds.” Counsel for the defendant moved that the answer be stricken out as being incompetent, and the court gave him an exception.
    A certain overcoat was produced by the people as an exhibit. Another witness for the people was shown the coat and asked whether or not respondent Breen had it on in Cleveland, Ohio, on the 19th of November, when the witness saw him there. The answer was in the affirmative, but before the question was answered counsel for defendant objected that the testimony was not rebuttal and the witness’ name not indorsed upon the information. To this ruling of the court no exception appears to have been taken.

      The defendant preferred certain requests to charge, directed at the witness Mueller. The court was asked to charge that if they believed from his testimony that he had knowledge that a crime was about to be committed when he drove the defendants, or some of them, in a taxicab to a certain point on the evening in question, he must be -regarded as an accomplice before the fact; that they should consider the testimony of an accomplice with great care and caution and disregard it if it had any features of untruth; that, if they found he had “wilfully sworn falsely to any material factor, you may reject his entire testimony”; that if they found him to be an accomplice they should consider “the inducement and influence for hope or promise Under which he gave his testimony. You may consider the motive that prompted him to inform Mr. Parker, police officer, of the alleged offense.” The court was requested to instruct the jury:
    “If you find that any witness has wilfully and intentionally falsified as to any material fact in this case, you may reject the entire testimony of such witness.”
    None of these requests was given as preferred, but in respect to the duty of determining what witnesses had told the truth he advised the jury to take into account—
    “The interests that the witness has in making the statement, the bias that he may have, if there is any, and if there are any compelling forces, if there are any compelling circumstances that are in his mind that cause him to make such a statement — all that may be taken into consideration. As is claimed here in this case by the defense, there are certain circumstances where certain of these witnesses have made certain statements, that they might fear prosecution, or that they have some interest in bringing about a conviction; or, upon the other hand, the prosecution may have claimed that there are certain interests that might bias certain of the witnesses. - Now, these things are always to be taken into consideration, if you find them to exist. If there is any bias upon the part of any witness, you have a right to consider that, if it is such a bias as attracts or challenges your attention. If there are any interests on the part of any witnesses, you are to take that into consideration, or if there is any compelling fact in hand that (you) may induce a witness to color his statements or testimony, you have a right to take that all into consideration. And you as reasonable men are supposed to apply those tests.”
   Ostrander, J.

(after stating the facts). 1. Technically, the question asked the witness Mueller was objectionable in assuming that he was guilty of or believed or supposed he was suspected of having committed crimes other than those he had himself referred to. The purpose of the question, i. e., to learn his attitude toward the police, and perhaps to show that he had a motive in assisting the police and in securing the conviction of respondents, was a proper one. In my opinion, the obvious purpose of the question was accomplished, considering the answer which was given, with the admissions of criminal conduct which the witness made.

2. Respondent Breen was not required to give testimony against himself because his shoes were used in the manner above stated.

3. It is plain that the testimony with respect to preserving the footprints which the shoes fitted is not incompetent.

4. The testimony relating to the overcoat was introduced in reply to testimony that the respondent never wore the coat. Without an exception, the point is not properly before us. But the prosecuting attorney could not have anticipated that the testimony would be important.

5. What was said in the opinion in Heddle v. Railway Co., 112 Mich. 547, 551 (70 N. W. 1096, 1098), answers, I think, the objections based upon the failure to instruct the jury as requested by respondents. It was there said:

“We think it was not the absolute right of defendant to have the request given in the exact language employed. It is the province of the jury to determine ultimately the credit to be given to a witness who has knowingly falsified or exaggerated as to certain facts. Whether the entire testimony of the witness is to be excluded depends upon the consideration of other questions, among which is that of whether the testimony is or is not corroborated by other witnesses. Knowles v. People, 15 Mich. 408; O’Rourke v. O’Rourke, 43 Mich. 61 (4 N. W. 531); Cole v. Railway Co., 95 Mich. 80 (54 N. W. 638). The request omits any reference to the question of corroboration by other witnesses, although the testimony of the plaintiff as to the manner of the accident was fully corroborated. Furthermore, the better practice is for the court to frame instructions in such manner as not to imply a fixed opinion of his own, upon the question either of the truthfulness of the challenged statements or of the credit to be given to other portions of the testimony. Fraser v. Haggerty, 86 Mich. 530 (49 N. W. 616); Argabright v. State, 49 Neb. 760 (69 N. W. 102); 2 Thomp. Trials, § 2423. And although we do not hold that it is error to call attention to the testimony of a particular witness, and to give cautionary instructions framed in such language as to be in all other respects unobjectionable, we do not think that it is the right of either party to insist that this course be taken. In the present case, the court laid down general rules for the guidance of the jury in weighing testimony, which we think were sufficiently clear not to be misapprehended.”

As a whole, the charge was exceptionally fair to respondents. I think no reversible error is pointed out.

Affirmed.

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


text:
    BARNEY v. BARNEY.
    Wills — Custody ok Possession — Estates of Decedents — Probate —Penalty—Statutes.
    Under 3 Comp. Laws 1915, §§ 13776-8, requiring any person having custody of any will to deliver it to the prohate court within thirty days after he learns of the death of testator, a person who accidentally came upon the instrument and filed it away after the testator’s death, was not a custodian within the meaning, of the statutory provisions and so was not liable ioi the penalty prescribed by the act.
    Error to Calhoun; Weimer, J., presiding.
    Submitted April 6, 1916.
    (Docket No. 34.)
    Decided June 1, 1916.
    Case by Helen L. Barney against Oliver W. Barney, under sections 9274-6, 3 Comp. Laws; 3 Comp. Laws 1915, §§ 13776-8, for the wrongful neglect to file a will for probate. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      James M. Powers and Walter S. Powers, for appellant.

      Leland H. Sabin, for appellee.
    In Barney v. Barney, 187 Mich. 145 (153 N. W. 730), this court affirmed the ruling of the circuit court for the county of Calhoun admitting to probate the will of Oliver Barney, deceased. The proponent of the will was Oliver William Barney, a grandson of the testator. The will was filed for probate July 28, 1913. It was executed in December, 1896, and the testator diect February 12, 1900. Upon the trial of that cause it was the claim of Oliver William Barney, the proponent of the will, that upon entering his bedroom in his father’s house one evening he discovered the will in an envelope upon his bed, that he took the will from the envelope* and read it and filed it away in a letter clip in his room, where it remained until shortly before it was presented by him for probate, a period of from 7 to 10 years. One of the legatees in that will brought this action against the said Oliver William Barney, in which she seeks to recover the penalty which she claims has accrued to- her by virtue of the provisions of 3 Comp. Laws, §§ 9274-9276; 3 Comp. Laws 1915, §§ 13776-13778, which sections read as follows:
    “ (9274) Sec. 13. Every person other than the judge of probate, having the custody of any will, shall, within thirty days after he has knowledge of the death of the testator, deliver the same into the probate court, ’which has jurisdiction of the case, or to the person named in the will as executor.
    “(9275) Sec. 14. Every person named as executor in any will, shall, within thirty days after the death of the testator, or within thirty days after he has knowledge that he is named executor,. if he obtains such knowledge after the death of the testator, present such will to the probate court which has jurisdiction of the case, unless the will shall have been otherwise deposited with the judge of probate; and shall, within the period above mentioned, signify to the court' his acceptance of the trust, or make known in writing to such court his refusal to accept it.
    “(9276) Sec. 15. Every person who shall neglect to perform any of the duties required in the two last preceding sections, without reasonable cause, shall be liable to each and every person interested in such will, in the sum of ten dollars damages for each and every month he shall so neglect, after the thirty days above mentioned, to be recoverd in an action on the case, with costs.”
    It is alleged in the declaration of the plaintiff that the will came into the possession, custody, and control of defendant on, to wit, the 1st day of June, 1902, at which, time he had knowledge of the death of the said testator, and it then and there became and was his duty to deliver the will to the judge of probate for the county of Calhoun within 30 days, or to deliver it to the executor named therein; that disregarding his duty, defendant, without any reasonable cause, neglected to deliver said will to the judge of probate or to the person named as executor in said will within 30 days, but, on the contrary, kept and secreted it from the 1st day of June, 1902, until the 28th day of July, 1913, concealing from the plaintiff and each and all of the 'persons mentioned in said will, from the judge of probate, and from the person named in said will as executor, all knowledge of the existence of the will and his possession thereof. Upon the trial, certain testimony of the defendant given at the trial of the cause above mentioned was read, to the effect that he found the will on his bed in his bedroom about 7 years before he gave his testimony, that he does not know how the will came to be there, that he looked it over and put it in a file in which he kept some other papers. Testimony for the plaintiff being concluded, the court was moved to direct a verdict for the defendant, one ground of the motion being that the defendant had not the custody of the will within the meaning of the statute and owed no duty under the statute, and this motion of the defendant was granted, and judgment was entered on the verdict. ■
    In his charge to the jury the court said:
    “It is the plaintiff’s contention that the defendant had the custody of this will within the meaning of that statute. On the other hand defendant contends that he did not have the custody of the will within the meaning of the statute. In other words, that the will was not in his custody before the death of testator; that the testator never intrusted it in his care, therefore that he was not the custodian of the will; that it came into his possession, not custody, some two or three years after testator’s death; and that is the view the court takes of it. * * *
    “This is a so-called penal statute — a statute which penalizes somebody — which provides for a penalty to be paid arbitrarily, and the plaintiff is claiming something over $1,200 by way of a penalty. Plaintiff’s case, however, proceeds upon the theory, his declaration alleges and his opening statement to you and all shows rather negatives the idea of any claim that might be made that this will was in the custody of the defendant at the time'of his grandfather’s death. Plaintiff does not claim that it was, and that in my opinion is the contemplation of the statute; that what the statute was aimed at was to provide penalty to be levied upon those persons who might accept a trust and then not carry it out; who might accept the custody of a will, as is frequently done. Frequently men accept the custody of wills — lawyers, bankers and others who act in those capacities, are frequently called upon to receive and accept wills and keep them in their safes or strong boxes or safe-deposit vaults for safekeeping for the men who made them, and it is those persons, that this statute was aimed at, and not a person who might casually come into possession of a will some time afterward, as occurred in this case.”
   Ostrander, J.

(after stating the facts). I am of the opinion that the court rightly construed the statute. The judgment is affirmed.

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