author: Hooker, J.

text:
    PEOPLE, for use of HOLMES, v. SHEEHAN.
    1. Sale — Passing of Title — Delivery.
    Where one person has agreed to sell and another to buy a specific and designated article, the law, in the absence of any manifestation of a contrary intention, presumes a sale to have been effected; delivery not being essential to the passing of title as between the parties and their privies.
    2. Same — Construction of Contract.
    Under an agreement whereby S., a contractor, was to select curbstone at H.’s yard, “and when the curbstone was thus picked out, and delivered to S., it should belong to S., and H. would have nothing more to do with it,” title passed when the stone was selected at the yard, although H. was to transport it when requested.
    3. Same — Delivery on Sunday — Effect on Contract.
    The right to recover the purchase price of goods sold upon a week-day is not affected by the fact that delivery was made on Sunday.
    4. Paving Contract — Contractor’s Bond — Liability of Sure- ■ TIES.
    Sureties upon the bond of a paving contractor are not liable for material purchased for the improvement, but subsequently rejected, and sold to other parties.
    5. Same — Actions—Parties Defendant.
    Dealers in paving materials, who have supplied contractors with stone used for distinct improvements, in respect to which separate bonds were given, cannot, in an action to recover a balance due, join all the sureties upon the different bonds, but should bring separate actions for the balance due on each improvement against those liable therefor.
    6. Same — Application of Payments.
    Payments made upon an account for materials furnished to a paving contractor for use in several improvements, in the absence of any application by the parties, will be applied to the charges in the order of their date.
    Error to Wayne; Carpenter, J.
    Submitted October 18, 1898.
    Decided November 15, 1898.

      Assumpsit by the people of the State of Michigan, for thé use and benefit of Frank B. Holmes and Albert R. Strachan, copartners, against Thomas P. Sheehan, Robert C. Sheehan, John Archer, and John C. McDonald, upon a statutory bond. From a judgment for plaintiffs for less than the amount claimed, both parties bring error.
    Modified.

      Warner, Codd & Warner, for plaintiffs.

      George H. Prentis, for defendants.
   Hooker, J.

The findings of fact filed by the circuit judge state that the. defendants Sheehan contracted with the city of Detroit to furnish materials and repave three streets, one of which was Randolph street. The other defendants were sureties upon the statutory bond given upon the Randolph-street contract according to the provisions of Act No. 94 of the Public Acts of 1883, as amended by Act No. 45 of the Public Acts of 1885. The plaintiffs furnished materials, viz., curbstone, for all of these jobs, amounting in the aggregate to $1,182.18. Payments were made amounting to $674.83, leaving a balance of $507.35. All of the stone was charged upon one account, and the payments were so credited, the last credit being August 7th. On or about August 5th the plaintiffs had an interview with the Sheehans, in which they said that, owing to what they considered an unfair rejection of stone, they would furnish no more, unless the Sheehans would select such material at plaintiffs’ yard, and when thus picked out, and delivered to Sheehan & Co., it should belong to.them, and the plaintiffs would have nothing more to do with it. This was agreed to, and upon a secular day the Sheehans examined at the yard 629 feet 8 inches of curb, which was delivered to them upon Randolph street. / The judge found that this became the property of the Sheehans, whether used or not, and that, of this quantity of stone, 334 feet at 58 cents per foot, worth $193.72, was delivered on Randolph street, at the request of the Sheehans, upon Sunday, August 8, 1897. Of this quantity delivered upon Sunday, the Sheehans sold to other parties an amount worth $34.39; it being curb that was rejected by the inspectors. It is inferred that the remainder was used upon the street. The learned circuit judge found, as conclusions of law, that the defendants Archer and McDonald are not liable for the curb delivered on Sunday, amounting to $193.72, nor for the curb not used on Randolph street, amounting to $30.42; also, that the payments should be applied to the charges in the order of time; and he rendered judgment for the plaintiffs for $283.16, with interest at 6 per cent, from September 1, 1897. Exceptions were taken to the several findings of law. Both parties appealed.

Counsel for the plaintiffs contend that the selection of the stone passed the title from them to the Sheehans. If this is so, their liability is not affected by the fact that the stone was drawn Sunday. The finding shows that the material in question was furnished under the agreement of August 5th, which grew out of a refusal on their part to furnish any more material unless the defendants Sheehan would select it at the yard. It is a general rule that, when one has agreed to sell and the other to buy a specific and designated article, the title passes to the purchaser at once, unless the terms of the contract indicate the intention to have been otherwise, and delivery is not essential to the passing of title as' between the parties and their privies. This rule is supported by innumerable cases, a long list of which will be found in 21 Am. & Eng. Enc. Law, 476, note 1, — among them, three of our own cases, viz.: Davis v. Ransom, 4 Mich. 238; Whitcomb v. Whitney, 24 Mich. 486; Byles v. Colier, 54 Mich. 1. See, also, Bingham v. Eggleston, 27 Mich. 324; Blodgett v. Hovey, 91 Mich. 574; Kuppenheimer v. Wertheimer, 107 Mich. 79 (61 Am. St. Rep. 317).

Where there is no manifestation of intention, the law presumes a sale, and the immediate transfer of title, if the specific thing is agreed on, and it is ready for immediate delivery. See 21 Am. & Eng. Enc. Law, 482, and cases cited in note 1; Lingham v. Eggleston, supra. Kuppenheimer v. Wertheimer, supra. This presumption will be overcome if a different intention can be deduced from the contract, and in this case counsel asserts that the finding shows a different intention. The language is, “Sheehan & Co. should select the material at their yard, and when the curbstone was thus picked out, and delivered to Sheehan & Co., it should belong to Sheehan & Co., and Holmes, Strachan & Co. would have nothing more to do with it.” Were the last clause of the sentence •omitted, it would be plain that the parties understood that the title was to pass upon selection, which is coupled with delivery in a manner indicating such intent. But counsel argues that the word “delivery ” cannot have been used in that sense, because the language implies that after delivery the plaintiffs were not to have anything more to do with the stone, which would be inconsistent with an agree.ment that they should deliver it on Randolph street. Were we disposed to be technical, we might say that there is nothing in this contract, as stated in the .finding, to indicate an obligation upon the part of the plaintiffs to transport the stone; but it appears that they did so, and we therefore assume that it was understood that they should transport it when requested. The question is not free from difficulty. As several of the cases cited hold, the mere agreement to do this would not prevent the title from passing; and we think a fair construction of the sentence quoted to be that after selection the title shpuld pass to the Sheehans, who would take it subject to the vicissitudes of inspection, with which the plaintiffs should have nothing to do. Taking this view of the case, the Sheehans 'became liable for the purchase price when the stone was selected, as the sale was then complete; and this liability was not affected by the subsequent transportation of the stone upon Sunday, to do which was no part of the contract of sale. This conclusion necessitates a reversal of the case, but we will consider the other questions raised.

We are of the opinion that the bondsmen cannot be held liable for material which, though purchased for this .job on Randolph street, was rejected, and sold to other ■parties.

Counsel for defendants also alleges error upon the application of payments, but cites no ■ authority which prevents the application of payments by the parties to the contract under the usual rule, or, if they fail to specify how all payments shall be applied, justifies any other rule than that followed by the learned circuit judge.

A further point is made, viz., that this was a running account between the Sheehans and the plaintiffs, and that it could not be split for the purpose of bringing separate actions. We understand counsel to claim that the bondsmen upon all three contracts should have been joined in one action for the entire balance of the account. Such an action could not have been maintained, as there was no joint liability between the sureties upon different bonds. This is not an action upon the contract for stone, but is based upon the bond, and is authorized by the statute.

The finding shows that the curb furnished for Randolph .street amounted to $853.01, upon which there was unpaid the sum of $507.35. From this amount the rejected curb, •amounting to $64.81, should be deducted, leaving a balance of $442.54, for which sum, with interest at 6 per ¡cent, from the 1st day of September, 1897, judgment will ibe entered in this court, with costs to the plaintiffs.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, C. J.

license: Public Domain

text:
    ROBERTS v. DENIO.
    Taxes — Seizure oe Personalty — Replevin.
    Plaintiff, in replevin for property taken under a tax warrant to satisfy a tax levied in pursuance of a law of the' State, cannot go behind the warrant and show the invalidity of the tax.
    Error to Sanilac; Beach, J.
    Submitted October 19,. 1898.
    Decided November 15, 1898.
    Replevin by William Roberts against George Denio. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Gates & Bajpley, for appellant.

      W. H. Burgess and William Dawson, for appellee.
   Grant, C. J.

Defendant was the treasurer of the village of Sanilac Center for the year 1897, and had a warrant for the collection of taxes, valid upon its face. He levied upon personal property to satisfy a tax assessed against the. plaintiff. Plaintiff brought this action of replevin, claiming the right to go behind the warrant and show the invalidity of the tax. The court entered judgment for the defendant. The suit is within the expressed prohibition of the statute, and cannot be maintained. 2 How. Stat. § 8318; Boyce v. Peterson, 84 Mich. 490; Curtiss v. Witt, 110 Mich. 131. This case is not within the few which have sustained the action of replevin when the tax was not levied in pursuance of any law of this State. These cases will be found cited, and the distinction shown, in Curtiss v. Witt.

Judgment affirmed.

The other Justices concurred.


author: Moore, J.

text:
    NEWMAN v. OLNEY.
    Assumpsit — Conversion by Bailee — Waiver oe Tort.
    One who leaves property with a bailee, who converts it to his own use, may waive the tort, and sue in assumpsit to recover its value.
    Error to Calhoun; Smith, J.
    Submitted October 20, 1898.
    Decided November 15, 1898.

      Assumpsit by William Newman against John B. Olney to recover the value of property converted by defendant. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      M. H. Nichols, for appellant.

      Le Bar Tompkins, for appellee.
   Moore, J.

Plaintiff sued defendant in justice’s court, and recovered a judgment. His declaration was upon all the common counts in assumpsit. The case was appealed to the circuit court, where, after a trial by a jury, plaintiff recovered a judgment of five dollars. Defendant has brought the case here by writ of error.

It is the claim of plaintiff that he sold his farm to defendant for 8400. He claims he left upon the land eight or ten cords of cord-wood and about a thousand feet of elm logs, upon an agreement that Mr. Olney might have the logs if he would allow Mr. Newman to leave the wood until the following winter. Mr. Olney drew the wood to his house, where it was at the time of the trial, and drew the logs to the mill. It was the claim of the defendant that he not only bought and paid for the.land, but that he bought and paid for the logs and wood the sum of five dollars. The trial judge, at the request of the defendant, submitted four special questions to tbe jury, which they answered, and they returned a general verdict of five dollars for the plaintiff.

It is claimed by defendant the special findings are inconsistent with the general verdict, and that the general verdict should be set aside. A motion for a new trial was made for that reason. In overruling the motion, the circuit judge found that the special findings were not inconsistent with the general verdict, and that the jury were not misled as to the issues of fact in the case. The trial judge was correct in his conclusion.

It is urged that, as the defendant still has the wood in his possession, the action of assumpsit cannot be maintained ; citing Watson v. Stever, 25 Mich. 386; Tolan v. Hodgeboom, 38 Mich. 624. The first of these cases is not in point, and the second case seems to be based upon the first one. In the case at bar it is admitted by defendant that plaintiff was the owner of the wood, but it is claimed that he sold it to defendant. It was the claim of the plaintiff, not only that he was the owner of the wood, but that he continued to be the owner of it at the time defendant converted it. His claim is, it was to be left with defendant, in consideration of plaintiff’s letting defendant have the logs, until the next winter. The jury found against defendant’s claim, and must have found plaintiff’s version of the transaction to be true. According to both versions, it came into possession of the defendant by reason of a contract made between them. They do not agree as to what the contract was, but they both agree a contract was made. The plaintiff waived the tort. The possession of the property was obtained under' contract between the parties, and the refusal to surrender the property amounted to a conversion, for which the tort could be waived and assumpsit brought. McLaughlin v. Salley, 46 Mich. 219; Coe v. Wager, 42 Mich. 49; Loomis,v. O'Neal, 73 Mich. 582; Aldine Manfg. Co. v. Barnard, 84 Mich. 632. If the version given by the plaintiff is the true one, the defendant was the bailee for the wood. It was his duty to deliver it to the plaintiff when he called for it. In such a case the plaintiff could sue in trover for the conversion, or, waiving the tort, might sue in assumpsit, and recover its value. Tuttle v. Campbell, 74 Mich. 652 (16 Am. St. Rep. 652).

Judgment is affirmed, with costs.

The other Justices concurred.


text:
    DUNN v. DETROIT SAVINGS BANK.
    1. Garnishment — Disclosure—Amendment.
    The court may, at any time before judgment, permit a garnishee to amend his disclosure, upon due notice to the opposite party.
    3. Same — Estoppel.
    A garnishee bank which, after an alleged defective service of the writ, paid out the deposit of the principal defendant on his outstanding checks, and, upon a subsequent service, filed a disclosure denying liability, is not estopped thereby from showing the exact condition of things at the time of the alleged defective service, — as that the fund was subject to the prior claim of a mortgagee.
    Error to Wayne; Carpenter, J.
    Submitted October 20, 1898.
    Decided November 15, 1898.
    Garnishment proceedings by Edward J. Dunn against the Detroit Savings Bank, as garnishee of Thomas Swan and others. The Union Trust Company intervened as claimant of the fund. From a judgment for claimant, plaintiff brings error.
    Affirmed.
    Statement of case taken substantially from brief of claimant: Plaintiff, Dunn, holds a judgment against the principal defendant, Swan, rendered in 1894, and on June 1, 1897, took out a writ of garnishment, based on the judgment, against the Detroit Savings Bank. At the time the writ was issued, defendant Swan had $900 on deposit in the said bank, the proceeds of sales of his stock in business. The’ sheriff, in making service of the writ, by mistake served a copy of the affidavit of garnishment, instead of a copy of the writ itself. A few hours later, a new and proper service of the writ was had; but in the meantime the bank paid the money to Swan on his checks then outstanding, and its disclosure set up no liability. An examination of the garnishee was demanded, and the issue reached the trial stage February 9, 1898. It was agreed that the court might dispose of the case without a jury, and the court evidently took the case into consideration.
    The claimant, Union Trust Company, held a chattel mortgage, made in 1893, and kept in force by proper renewals, on all defendant Swan’s stock, present and future, proceeds of sales, etc., and, upon learning of the garnishment proceedings, claimed any amount for which the bank might be held in the proceedings, under its mortgage. As the bank had not, in its disclosure, set up the mortgagee’s claim, the court, February 16th, allowed the disclosure to be amended so as to permit intervention under the statute, and, February 21st, after due notice to plaintiff, made an order interpleading the trust company as claimant. The court also found that the service of the writ on the bank was a good one, and directed a verdict against it in favor of the plaintiff, subject to the rights of the claimant, to be established in a trial between plaintiff and claimant. This latter issue was tried May 17th, and, all the facts being undisputed, the court held that under the decision of this court in the case of Dunn v. Michigan Club, 115 Mich. 409, where this same mortgage was construed, claimant was entitled to the fund, and a verdict was rendered and judgment entered in favor of the claimant. From this judgment, plaintiff has taken a writ of error.

      William B. Jackson, for appellant.

      Russel & Campbell, for appellee Union Trust Co.
   Grant, C. J.

(after stating the facts). 1. The amendment was allowable. 2 How. Stat. § 7631; Newell v. Blair, 7 Mich. 103; Drake v. Railway Co., 69 Mich. 168 (13 Am. St. Rep. 382); Rock v. Collins, 99 Wis. 630. It is true that the issues had been submitted to the court on February 9th, but it was within the power of the court to open the case and allow an amendment at any time before judgment, upon due notice to the opposite party.

2. The bank was not estopped by its first' disclosure that, at the time of the service of the writ, it had no money in its hands belonging to Swan. It did not have at the time of the actual service. The court held that the exhibition to the cashier of the original writ, and the service of a copy of the affidavit, instead of a copy of the writ, constituted a good service. The court was correct in permitting the garnishee to show the exact condition of things at the time of the alleged defective service.

Judgment affirmed.

The other Justices concurred.


author: Hooker, J. Long, J.

text:
    YOUNGS v. AUDITOR GENERAL.
    Tax Sales — Redemption—Certificate of Error.
    Where a city council, assuming the invalidity of a sidewalk tax for a certain year, ordered the tax reassessed in the following year, and the land was sold for the taxes of both years, and the owner, in due season, sought to redeem from the second sale, the auditor general was justified in canceling the former sale, and issuing a certificate of error thereon, under section 98, subd. 2, of the tax law of 1893, authorizing such action in cases where the tax was paid “within the time limited by law for the payment or redemption thereof.” Hooker, J., and Grant, O. J., dissenting.

      Certiorari by Clark W. Youngs to review the action of Roscoe D. Dix, auditor general, in issuing a certificate of error.
    Submitted June 10, 1898.
    Writ quashed November 15, 1898.

      W. 8. Hill, for petitioner.

      Henry E. Chase, Deputy Attorney General (E. C. Chapin, of counsel), for respondent.
   Hooker, J.

Hinds was owner of city lots in Stanton. In 1893 the city authorities built a sidewalk adjacent to these lots, and a special tax was spread therefor against the lots. The tax not being paid, they were bid in for the State, and the State title was sold in June, 1897, to Sherwood, and in September, 1897, he conveyed the property to the plaintiff. Op January 10, 1898, the auditor general issued a certificate of error canceling the deed to Sherwood, and assigning in the certificate, as ground therefor, that the land was erroneously returned delinquent, advertised for sale, and sold for taxes assessed for the year 1893, for the reason that the warrant for the collection of taxes did not include sidewalk taxes for that year. A writ of certiorari was issued to the auditor general, and the retur shows that the certificate of error was given for the reason above stated. The return also shows that it was at the same time shown to the auditor general that the record of the common council of the city of Stanton showed that, after said sidewalk was built by the city, a report was made of the cost thereof, and a resolution to assess the sum of $17.67 against these lots; but the record did not show that any action was taken upon the resolution; and that the record of the council showed further that in March, 1894, a report was made by a committee of the council of the uncollected taxes, and that, — ■

“Owing to a clerical error on the part of Supervisor Lucas in spreading said taxes on the roll, it was considered inadvisable by City Attorney Miller to force collection on the same. Your committee would recommend the correction of the assessment on P. S. Dodge’s description, which was spread at $17.67, but by the county clerk in the certificate at $27.86, and the reassessment for 1894 of the above-mentioned sidewalk tax.”

It was further made to appear that, by reason of the foregoing, the common council caused this tax to be reassessed in the year 1894, and that, being returned delinquent, the land was sold for said tax. On June 29, 1897, on application of Sherwood, this last sale was canceled, for the reason that it was made to appear that the land had been sold in 1893 for the same tax that was reassessed in 1894. On November 30, 1897, Hinds, the owner, applied to redeem from the sale of 1894, and was informed that the same had been canceled. Thereafter, on full investigation, the auditor general canceled the deed for the tax of 1893, and permitted Hinds to redeem from the tax of 1894.

The plaintiff in certiorari contends that matters are set up in the return that are not responsive to the affidavit, and that they are immaterial; that the cancellation must stand upon the alleged defective warrant, if anything; and that, as a defective warrant does not invalidate the lien of the State (Auditor General v. Sparrow, 116 Mich. 574), the action of the auditor general was erroneous.

The circuit court, by its decree, adjudged these lands to be chargeable with and subject to sale for the nonpayment of this tax. Muirhead, v. Sands, 111 Mich. 487. The auditor general, by his action, has held that they were not, and the reasons alleged to justify such action are that the tax was not ordered, and that it had been reassessed. In short, he has reversed the decree of the circuit court.

Section 98, Act No. 206, Pub. Acts 1893, allows the auditor to cancel sales upon any one of three grounds:

1. That the land was not subject to taxation at the date of the assessment of the taxes for which it was sold.
2. That the tax had been seasonably paid.'
3. That the sale was in contravention of some provision of the act.

None of these grounds are shown. The land was subject to, taxation, the tax had not been seasonably paid, and no irregularity in the sale.is shown. This order was therefore erroneous, and should be set aside. The plaintiff in certiorari should recover costs against Hinds.

Grant, O. J., concurred with Hooker, J.

Long, J.

I cannot agree with my Brother Hooker in this case. Whether or not the common council had the power to cancel the tax of 1893 need not be discussed. Such action was taken by the council that the owner of the premises, Mr. Hinds, had the right to assume that he would not be called upon to pay the tax of 1893, as it was reassessed for the year 1894. It appears by the return of the auditor general that on November 30, 1897, Mr. Hinds, the then owner of the land, applied to him for the redemption of the land under the sale for the tax of 1894. This application was made within the time when such lands were redeemable after sale, and the auditor general very properly received the amount of the tax tendered at that time, and canceled the sale for the tax of 1893, which he was empowered to do under subdivision 2, § 98, Act No. 206, Pub. Acts 1893. It is apparent that the owner of the land was led by the action of the common council to believe that by the reassessment in 1894 he would not be called upon to pay the tax within the time limited for the collection thereof under the assessment of 1893, and that a payment of it under the reassessment would be a full compliance with the statute. Feeling secure in this position, he delayed the payment until November 30, 1897, and then it was ascertained that the tax of 1893 had been returned to the auditor general, and a sale made thereunder, and his right to redeem apparently cut off. The auditor general, realizing this condition, and ascertaining that the owner had been misled by the public authorities, canceled the sale of 1893, and received the money in payment of the reassessed tax.

The proceedings in the premises must be affirmed, and writ of certiorari quashed.

Montgomery and Moore, J J., concurred with Long, J.


author: Montgomery, J.

text:
    HARRIS v. O’GORMAN.
    Replevin — Special Verdict — Return op Property.
    A verdict in replevin, simply that “defendant did not unlawfully detain,” based on a plea of the general issue, which, under 2 How. Stat. § 8339, puts in issue, not only the detention of the property, but also the property of plaintiff therein, and his right to possession at the time of the commencement of the suit, does not entitle defendant to a return of the property.

      Certiorari to Saginaw; Snow, J.
    Submitted October 25, 1898.
    Decided November 15, 1898.

      Mandamus by Lovina Harris to compel John O’Gorman, justice of the peace, to issue a writ of retorno habendo. From an order granting the writ, respondent brings certiorari.

    Reversed.

      John E. Nolan, for relator.

      James H. Davitt, for respondent.
   Montgomery, J.

The Singer Manufacturing Company brought replevin before respondent to recover possession of a sewing machine, making one Lovina Harris defendant. On the trial the jury returned as their verdict that “the defendant, Lovina Harris, did not unlawfully detain said sewing machine.” The judgment entered on the verdict was that the defendant did not unlawfully detain the said goods and property, and that she recover costs. Subsequently the defendant, Lovina Harris, applied to Judge Snow for a writ of mandamus directed to the justice to compel him to issue a writ of retorno habendo. The circuit judge granted the writ, and this ruling is before us for review.

The statute (section 8339, 2 How. Stat.) provides:

“The defendant may plead the general issue to such declaration, which shall be in the same form as in personal actions, and shall put in issue not only the detention of the property, but also the property of the plaintiff therein, and his right to the possession thereof at the time of the commencement of the suit, and under such plea the defendant may give notice of any special matter of defense to the action.”

The question is whether, under such an issue, a verdict in the form in which that in question was given entitles the defendant to a judgment for the return of the property. The defendant is not in all cases entitled to a return of the property. It may appear that plaintiff is entitled to possession, and yet that judgment ought to go for defendant for the reason that he has not detained the property from the plaintiff. In such cases the verdict and judgment should be limited to a discharge of defendant and costs in his favor. McGregor v. Cole, 100 Mich. 262; Farrah v. Bursley, Id. 547; Weber v. Henry, 16 Mich. 399.

It has been held that when the plea presents several issues, and the verdict is general, and broad enough to cover all the issues, as, for instance, “We, the jury, find the issues for the defendant,” a return may be adjudged on such a verdict. Wells, Repl. § 753. But when there are several pleas, and the verdict is, “Not guilty,” a return cannot be adjudged on such verdict. Hanford v. Obrecht, 38 Ill. 493; Ford v. Ford, 3 Wis. 399. It is well settled that at the common law the plea of non cepit does not entitle the defendant to the return of the goods. Pierce v. Van Dyke, 6 Hill, 613. And while, as we have seen, a verdict covering all the issues would entitle the defendant to a return of the property, as would "also perhaps a general verdict for the defendant (Baldwin v. Burrows, 95 Ind. 81), in this case the verdict is not general, but limited to finding a single fact, viz., that defendant did not unlawfully detain the property. This verdict did not cover all the issues which defendant might have presented, possibly not all that she did present. She has, however, not appealed; and, unless we are to supply the defects in the verdict, we cannot treat it as a finding that she is entitled to a return of the property.

The circuit judge was in error. The order will be reversed.

The other Justices concurred.


text:
    WRIGHT v. AUDITOR GENERAL.
    Takes — Boards of Review — Sufficiency of Meeting.
    Under section 30 of the tax law of '1893, requiring township boards of review to meet on the fourth Monday in May, at 9 o’clock in the forenoon, and continue in séssion during that day and the day following, the failure of the board to meet until the second of the specified days will not avoid the tax, although the landowner appeared on the preceding day, and claims to have been unable to attend thereafter.
    Appeal from Ogemaw; Sharpe, J.
    Submitted October 20, 1898.
    Decided November 15, 1898.
    Bill by David Wright and another against the auditor general and others to restrain the collection of certain taxes. From a decree for defendants, complainants appeal.
    Affirmed.

      McDonell & Hall, for complainants.

      Albert E. Sharpe, for defendants.
   Moore, J.

Complainants filed a bill to restrain the collection of certain taxes, and have appealed from a decree made against them by the trial court. The complainants are owners of a good many descriptions of land situated in various townships. For the purpose of having their lands properly assessed, they sent their agents, who were well acquainted with values, to attend the meeting of the board of review, whose duty it was to meet upon the fourth Monday of May at the office of the supervisor. They arrived at the office about 12 o’clock, and remained until about 3 o’clock. No member" of the board of review was present during that time, and the board were not assembled as a board that day. These men were informed that the supervisor was absent from home, and would not return for some days. They examined the assessment roll, and prepared a list of the lands assessed to the complainants, and set opposite each description what they regarded as its value for assessment purposes, which list they left at the office of the supervisor. Attached to the list was a written protest against any higher assessment than the values which they had put upon the lands. No one appeared at the office of the supervisor on behalf of complainants after this. It was claimed that it was necessary for the agents of the complainants to spend all of the remaining portion of the day, and the following day, with other boards of review. The record shows that the supervisor was called from home on the preceding week by the illness of his mother. He did not reach home until Monday night. He convened the board of review Tuesday morning, and it remained in session during all that day. It had the list prepared by plaintiffs’ agents before it, and passed upon the assessments. It was the opinion of the circuit judge that there was an opportunity for the complainants to appear before the board of review, and that the assessment was not void.

The complainants insist that the failure of the board of review to meet on the first day fixed by law voids the tax, and cite, in support of that proposition, Township of Caledonia v. Rose, 94 Mich. 216; Auditor General v. Chandler, 108 Mich. 569. There is language used in these opinions which justifies the claim of the solicitors, but the language was not necessary to the disposition of the cases. In the first case the owner of the land appeared at the place of the meeting, on Monday, to protest against his assessment, and was told by the supervisor the board had adjourned. He asked it to be reconvened. This was refused by the supervisor, and the board was not again in session. In Auditor General v. Chandler the landowner appeared at the house of the supervisor on Tuesday, and learned from the supervisor the board had adjourned without day. It will be seen that in both of these cases there was no opportunity for the owner of the land to have a hearing before the board of review, though he had been diligent in his effort to have a hearing. In this case there was an opportunity for a hearing upon one of the days fixed by law for the hearing. The legislature undertook to provide for such a contingency as occurred here. Section 28, Act No. 206, Pub. Acts 1893, provides for a board of review consisting of three members, a majority of whom shall constitute a quorum. Section 30 provides that the board of review shall meet at the office of the supervisor on the fourth Monday in May, at 9 o’clock in the forenoon, and continue in session during the day and the day following. Section 32 provides that if, from any cause, a quorum shall not be present at any meeting of the board of review, it shall be the duty of the supervisor, or, in his absence, any other member of the board, to notify any absent member to attend at once, and makes it the duty of the member so notified to attend without delay. It also provides that if, from any cause, the second meeting of the board shall not be held at the time fixed therefor, it shall meet the following Monday. Would it be claimed that, under these provisions of the statute, if the board, because of the sickness of some of its members, or illness in their families, or for any other cause, did not convene in the forenoon, it would void the tax even though it was in session in the afternoon? We think this is loo narrow a construction to put upon the law. The landowner has a right, up to the last moment fixed by law, to be heard in relation to bis assessment, and he cannot be deprived of that right; but where the board, though it may be late in convening, meets during the time fixed by law, and remains in session until the time fixed by law is ended, and has been in session long enough to permit all persons desiring to appear before it to be heard, and to pass intelligently upon the protests, it cannot be said the landowner has not had his day in court.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    LAROUE v. CONWAY.
    Township Boards — Justices op the Peace — Vacancy in Office.
    Under 1 How. Stat. § 744, providing that the two justices of the peace whose terms of office will soonest expire shall be members of the township board, upon a vacancy arising in either of the senior terms the third justice succeeds to membership.

      Certiorari to Chippewa; Steere, J.
    Submitted November 1, 1898.
    Decided November 15, 1898.

      Mandamus by Sarah J. Laroue to compel Edward H. Conway, county treasurer of Chippewa county, to receive and file a liquor bond. From an order denying the writ relator brings certiorari.

    Affirmed.

      McDonald & Smith, for relator.

      Oren & Webster, for respondent.
   Grant, C. J.

This case involves the right of one Charles W. Caley, a justice of the peace, to act as a member of the township board of the township of Superior, Chippewa county. At a meeting of said board there were present the supervisor, the clerk, and one Scribner, a justice of the peace, whose term of office expires in 1899. The office of the justice whose term would have expired July 3, 1898, was vacant. Mr. Caley’sterm expires July 3, 1900. 1 How. Stat. § 744, provides that the board shall consist of four members, — the supervisor, the clerk, and the two justices of the peace whose terms of office soonest expire. Under the relator’s contention, the township board would consist of only three members until the vacancy in the senior term was filled. We are of the opinion that the statute means the two oldest justices at the time holding office. The court below so held, and the judgment is affirmed.

The other Justices concurred.