author: Brooke, J.

text:
    McDONNELL v. CENTRAL DRUG CO.
    1. Master and Servant — Fellow-Servant —Negligence —Instructing Employé.
    In issuing to another servant orders to instruct decedent how to charge a tank with soda water, the employé who had charge of the soda department of defendant, and of the charging of soda fountains, represented the master, and negligence of the servant so directed by him in performing such duty was not the negligence of a fellow-servant.

    2. Same — Saee Appliances — Inspection.
    Where plaintiff charged defendant with negligence in furnishing a defective tank to be charged by decedent, defendant could not complain of instructions to the jury that defendant was called upon, in making an inspection, to do what a reasonable man of ordinary prudence would do to keep the tank in a reasonably safe condition; the words “ in making an inspection,” did not prejudice defendant.
    3. Damages — Trial—Evidence—Estates oe Decedents.
    Evidence that decedent sent a sum of money to his father, which was not shown to have been a contribution to his family, was erroneously received; but the error was cured by the court withdrawing such evidence from the consideration of the jury by its instructions thereto, in pursuance of a request of defendant’s attorney.
    4 Trial — Special Questions — Master and Servant.
    The trial court, on its own motion and with the consent of counsel, properly submitted to the jury a special question relating to the source from which decedent received instructions, if any.
    5. Same.

      Held, that the verdict was not against the weight of the evidence. •
    6. Damages — New Trial.
    A verdict of $6,268.01 in favor of decedent’s widow whom he had abandoned, and to whom he had made no contributions for a considerable period preceding his death, was exoessive. and is held to have been brought about by inflammatory language of plaintiff’s attorney: $8,000 held to be reasonable under the evidence.
    Error to Wayne; Murphy, J.
    Submitted January 4, 1912.
    (Docket No. 164.)
    Decided May 31, 1912.
    Case by Ella McDonnell, administratrix of the estate of Michael McDonnell, deceased, against the Central Drug Company for the negligent killing of decedent. Judgment for plaintiff. Defendant brings error.
    Reduced and affirmed.
    O. E. Butterfield (</. W. Dohany, of counsel), for appellant.

      Sloman & Slomcrn (J. N. Beckinstein, of counsel), for appellee.

       As to whether the duty of the master to instruct or warn servants is delegable, see note in 26 L. R. A. (N. S.) 624

   Brooke, J.

This case has been in this court once before and will be found reported at 160 Mich. 455 (125 N. W. 546), where a sufficient statement of facts will be found. A second trial in the court below has resulted in a verdict for plaintiff in the sum of $6,268.01, and defendant has removed the case to this court for review. There are some 76 assignments of error which are treated by defendant under the following heads:

“ (1) The proximate cause of the death of the plaintiff’s intestate was the negligence of David Berlin, a fellow-servant with the deceased, for whose acts no recovery can be had in this case.
“ (2) There is no evidence of negligence on the part of the defendant in respect to the condition of the tank.
“ (3) The verdict is excessive.
“ (4) The court erred in admitting evidence .of payments made by Michael McDonnell to his father and in refusing to charge as requested by the defendant in respect thereto.
“ (5) The verdict was induced, in part at least, by intemperate language in the argument of counsel for plaintiff.
“(6) The submission to the jury by the court on its own motion of the special question whether Berlin was directed by Larkins to show McDonnell how to charge the tank, was reversible error.
“(7) The verdict is clearly against the overwhelming weight of the evidence.”

We will consider defendant’s claims seriatim.

The testimony upon this trial as to Berlin’s connection with the matter is not materially different from that offered at the former trial. At this trial a special question was submitted to the jury, as follows:

“Did Larkins direct Berlin — meaning David Berlin— to instruct McDonnell how to charge the tank ? ”

This question was answered in the affirmative by the jury. If, therefore, the assertion of defendant is true that McDonnell’s death was due to Berlin’s negligence, it does not follow that Berlin was a fellow-servant of McDonnell, and therefore that defendant is not liable. In our former opinion, under the head of “Fellow-servant,” this question is discussed, and we there held that if the master delegated to Berlin the duty of instructing McDonnell how to fill the tank, Berlin’s negligence in carrying out those instructions would be the negligence of the master. We perceive no reason for changing our views there expressed. It is urged, however, that there is no evidence tending to show that the defendant had authorized Larkins to direct Berlin to give lessons to new employés. Mr. Rank, the general manager for defendant, testified that Larkins had charge of the soda department under Mr. Tabor, and that one of his duties was to see that the fountains and so on were charged. We find no difficulty in holding that, under the circumstances of this case, Larkins must be considered as representing the master in issuing the order to Berlin.

Defendant’s second proposition is, we think, answered contrary to its contention by the holding in our former opinion under the head ‘c Jury’s Duty. ” The tank which exploded was an appliance of the simplest character imaginable. It was concededly old. According to testimony on the part of the plaintiff, it was badly rusted and scaled. It was in use in a place and under circumstances highly conducive to rust and deterioration, evidences of the existence of which were plainly visible. The measure of duty imposed upon the defendant by the charge of the learned trial judge was that:

“ The defendant was called upon, in making an inspection of this tank, to do what a reasonable man of ordinary prudence would do to keep that tank in a reasonably safe condition.”

It is argued on behalf of defendant that, inasmuch as there was no testimony showing what inspection was usual or customary as to such apparatus, this charge was erroneous, in that it permitted the jury to establish a rule of inspection for themselves. We are of opinion that the cases cited in support of this contention are not here applicable. As we read the declaration, the negligence charged upon this point is not that the defendant failed to make a reasonable inspection of the tank, but that it was negligent in failing and neglecting to furnish sound and safe tanks to be filled. The words “in making an inspection of this tank” might very well have been omitted from the excerpt given above, but we cannot say that the jury was misled by their use, or that too high a degree of care was thereby imposed upon the defendant. Whether the defendant maintained a tank reasonably safe, by inspection and repair or by substituting new for old, is of no consequence. Its duty was to use reasonable care to so maintain this appliance. The plaintiff having shown the alleged defective condition of the tank, the explosion, and injury consequent thereon, a situation has arisen which, as we said before, “would have warranted the finding that the explosion was due to the rusted and weakened condition of the tank, which was properly chargeable to the master’s neglect.”

This will be treated hereinafter in connection with “5.”

If any error was committed in the admission of the testimony of which complaint was made, it was cured by the charge:

“ There is no evidence in this case that the sum of $130 (which) is alleged to have been sent by the deceased to his father during the 11 months preceding his death contributed in any respect to the support of his family; nor is there any evidence in the case that any of the money alleged to have been sent by the deceased to his father during the 11 months before his death was credited on any account for which Mrs. McDonnell or any member of her family was liable. Therefore any such money could not be regarded as a contribution to the support of the family.3

This instruction is in the precise language of defend-¶ ant3s requests upon the subject.

This was urged as one of the grounds for a new trial. In denying the motion, the trial judge asserts that, before submitting the special question, he secured the assent of both counsel to such a course. In thereafter submitting the special question, though not acting strictly in conformity with the provisions of 3 Comp. Laws, § 10237, we are of opinion that the trial judge acted with propriety, relying upon the express assent of counsel, who should not now be permitted to question the course taken because the result may be unsatisfactory.

We are not prepared to say that the verdict is so clearly against the weight of the evidence as to demand judicial interference upon that ground. As to the old and defective character of the tank, the evidence is voluminous. Touching the point raised by the special question, there was a decided conflict in the testimony. One witness, Berlin, swore positively that Larkins gave him the order, and Larkins as positively denied it. One significant fact remains, however, and that is that Berlin, whether for the purpose of instruction or otherwise, actually did • take McDonnell into the cellar with him and made use of him as an assistant in charging the tank.

3 and 5. We will discuss these two grounds together, and first as to 5. In his closing argument to the jury, counsel for plaintiff used the following language;

"The course that has been taken here is worthy of a pirate in the days of old; the old buccaneers, who had no sympathy with their victims, who would just as lief crush them out to death, and then revile them afterwards, with impunity, without a wink; just stop and think of it. What has happened here ? The meanest dog on the face of the globe, the worst criminal on the face of the earth, is given a reasonable trial, is afforded a fair opportunity to prepare for eternity; but poor Michael McDonnell, as straight and square a man as ever breathed a breath of life, was sent to death, without even the ordinary warning, without even the ordinary common decency that would be extended to the most humble and the worst criminal on the face of the globe. When a man is tried and condemned to death, he is allowed an opportunity to prepare for his inevitable end; but Michael McDonnell was sent into this cellar, reeking with slime and smells, in that sewer, without warning or chance to make peace with his Maker, without the remotest idea that he was coming in contact with something that was going to deprive him of his life, take his life from him, murder him.
“Mr. Dohany: I take an exception.
“Mr. Sloman: And, not content with robbing this man of his life, the only thing he has left to his family, his widow, and his children, the heritage of his good name, they must come in now and blast it.
The Court: I do not think there is warrant in saying this homicide was a murder. Therefore, gentlemen of the jury, that must be disregarded and not be permitted to influence you in your deliberations. * * *
“Mr. Sloman: Talk of negligence, if that does not border on criminal negligence, what does ? If people cannot be held responsible for things of that kind, I ask you, in the name of fairness and common honesty, when can they be ? Day in and year out that tank stands here in that wet and damp and slimy condition. You remember the testimony of one witness upon the part of the defendant, who told how even the sewer was, there was that drain, the center of it a few inches below the level of the floor. Why was that ? Because they did not have the fall; they could not get a fall. Would you want to have that on your conscience ?
“Mr. Dohany: I take an exception to the argument to , the jury as to what they would want to do, bringing the matter home to them.
“Mr. Sloman: I speak of the generality of men, and I take it you are among the great body of citizenship, among the men in the great walks of life, who have the daily experiences, who have the same heart throbs, who are actuated by the same influences, who are mindful of the rights of individuals like everybody else. I look upon you as human beings who would not dare — your consciences would not permit you — to put men in places of danger that way.
“Mr. Dohany: I take an exception to that. * * *
“Mr. Sloman: And when that duty presents itself, as it does in this case, free from any obstructions, you ought to discharge that duty to the full, and you ought to give her just what she asks in her declaration in this case, and even that would not compensate her for what she would have asked, and what her children would have asked, had Michael McDonnell been treated even as the commonest criminal on the face of the globe ought to be treated.
“Mr. Dohany: I take an exception to that.
“The Court: What was the remark? (The stenographer reads it, the court says nothing, and Mr. Sloman continues as follows:)
“Mr. Sloman: Had he been given an opportunity for his life down in that hellhole, without a chance to make his peace with his Maker. I don’t care what your life or what struggles you have had, but whatever you are, let your mind linger through those long years of memory, and you cannot find sucha case of cruelty as is here shown in this case, try as you will. And is a thing of that kind to go unrebuked ? Is a jury of Wayne county to say to these Flint people:
“‘Go back, there is no such thing as justice in Wayne county, men may be killed, they may be innocent as a babe of the harm they are thrown in, their lives taken from them, and their reputations soiled and destroyed.’ ”

It is the claim of defendant (and in our opinion the claim is not without reason) that this intemperate argument on the part of plaintiff’s counsel in his closing argument induced, in part at least, the verdict rendered. This court has set the seal of its disapproval upon the course here followed many times. See Spencer v. Simmons, 160 Mich. 292 (125 N. W. 9, 19 Am. & Eng. Ann. Cas. 1126), and cases there cited.

Nothing can here be added which would lend strength to what we have already said upon this subject. The question then is: What should be done with this judgment ? The amount fixed by the jury as the present value of the sums which McDonnell would have contributed to his family during his expectancy was $6,268.01. He seems to have started his married life as the owner of a 40-acre farm which he worked for some five years. He then took employment in a railroad in the roundhouse, then became foreman upon an engine, then lived on a rented farm, then became a teamster, then a collector and solicitor for a newspaper, then a solicitor for insurance, then a motorman, then a policeman, then the proprietor of a restaurant, to purchase one-half of which he borrowed some money from his father. Later he bought the other half by executing a mortgage on his home, worth about $700, for $350. At this point in his career he left his wife and family in possession of the restaurant in Mint and went to Detroit, where he lived for 11 months prior to his death. During this period he did not contribute anything to the support of his family, nor visit them. At the time of his death he was 46 years old and was working as porter for the defendant. His duties here were menial in character and such as are usually not very highly compensated. Up to the time he left his family, he had apparently maintained them as well as his circumstances would permit.

To say that this man, during the declining years of his life, with his earning capacity upon the wane (even assuming upon his part a proper disposition to support his family, which may well be doubted), would have contributed such sums of money to them as to produce a present worth equal to $6,268.01 is, in our opinion, gross exaggeration. Inasmuch, therefore, as we find no reversible error in the case unless the inflammatory remarks of counsel should be held to be such, and as the case has already been twice tried, we have concluded that the ends of justice would be better served by a reduction of the verdict, than by a reversal.

The judgment will therefore be reversed, unless the plaintiff shall remit the sum of $3,268.01, leaving the amount thereof $3,000. In which event it will stand affirmed at that figure, with costs of this court to defendant in any event.

Moore, C. J., and Steere, McAlvat, Blair, Stone, and Ostrander, JJ., concurred. Bird; J., did not sit.


source: Caselaw Access Project

license: Public Domain

text:
    PEKLENK v. ISLE ROYALE COPPER CO.
    1. Mines and Mining — Landlord and Tenant — Negligence.
    It was some evidence of negligence that a mining corporation, having property two by three miles in extent for a period of ten years and upwards, left a partially concealed and overgrown pit or abandoned portion of its mine uncovered and unguarded, upon a common about 300 feet from the highway and a fourth of a mile from houses which the corporation rented, notwithstanding that no officers of the company knew of its existence.
    3. Same — Trespass—License.
    The fact that children of such tenants were accustomed to traverse the common, which was unfenced, being known to defendant’s officers, who raised no objection, imposed a duty on defendant to warn the tenants of any existing dangers known to them or discoverable in the exercise of reasonable care; and plaintiff’s son, who fell into the pit while searching for wood, was not a trespasser but a licensee.
    Error to Houghton; Streeter, J.
    Submitted January 10, 1912.
    (Docket No. 39.)
    Decided May 31, 1912.

      Case by Margaret Peklenk, administratrix of the estate of Mike Peklenk, deceased, against the Isle Royale Copper Company for the wrongful death of decedent. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      O’Brien & Be Oendre, for appellant.

      Allen F. Rees, for appellee.
    Plaintiff’s decedent was her son, a lad nearly 12 years of age. On July 1, 1909, the boy’s father, with his family, had moved into a house upon the Hurontown location, at that time, a portion of the property of the defendant company. The whole estate of defendant covered an area approximately three miles long and two miles wide. Various companies had mined at different points upon said property, which came into possession of defendant in 1897. That portion of the property known as the old Huron mine had not been operated by defendant since it acquired the property. The location was entirely unfenced, an open common used for pasture. Across one portion of these premises there ran a footpath or trail, which connected with the highway between Hurontown and Dodgeville. It was used by the occupants of the little collection of houses upon this location as a short cut towards Dodgeville. This trail ran within a few feet (one witness places the distance at 15 feet) of an old pit. The opening is described as being about 5 by 6 feet in area at the surface. About its edges tall grass, bushes, and small trees had grown, so that at a distance of a few feet its existence would not be suspected. It was not an old disused shaft, but a hole in the surface which had resulted from mining operations carried upward from a stope in the old mine. It had never been protected by a fence, though defendant had caused all known dangerous, unused holes, pits, and shafts to be so protected in 1899. This hole was located about 1,400 feet from the home of the boy, and less than 200 feet from the highway. An open trench led from the hole a short distance down the slope. It was about 5 feet deep at the edge of the hole, diminishing in depth to nothing at a distance of about 100 feet.
    On the 9th day of July, the boy left his home in the afternoon, taking a wheelbarrow, with the intention of collecting wood about the old mining location. In some way, wholly conjectural, he found his way to the mouth of this pit, fell in, and was drowned. His cap, floating upon the surface of the water in the pit, advertised the tragedy. Immediately the defendant took steps to recover the body, and, after using a steam pump for four weeks, succeeded in lowering the water a distance of 87 feet, when the body was found.
    The negligence charged against defendant is:
    A. Failure to warn or notify plaintiff or her husband, or plaintiff’s intestate, of the existence of said pit.
    B. Failure to cover or guard said pit in any manner whatever for a period of 10 years and upwards.
    C. Failure to fence said pit for the same period of time.
    D. Failure to fill up said pit for the same length of time.
    E. Failure to remove brush, trees, and grass which partially concealed said pit from plaintiff’s intestate.
    A verdict having been directed in favor of defendant, plaintiff reviews her case in this court by writ of error.
   Brooke, J.

(after stating the facts). The declaration is composed of three counts. The first two counts predicate liability on the part of the defendant by reason of the statute, 3 Comp. Laws, §§ 11527 and 11528. The third count sets out a common-law duty, the breach of that duty and consequent damage.

The caBe seems to have been tried at circuit upon the theory of a common-law liability only. In this court plaintiff does not urge defendant’s liability under the statute, and we are therefore not called upon to determine its applicability to an opening such as the one which caused the death of plaintiff’s intestate. That question if presented would be one by no means free from doubt.

Was there testimony introduced by plaintiff tending to establish a liability at common law ?

The record contains abundant evidence tending to show that the hole into which the boy fell had existed for several years, and that it was unprotected. It is, we think, clear that no responsible officer of the defendant company had actual knowledge of the dangerous opening. The superintendent of the defendant company, however, testified that he had known of the existence of the trench leading from the hole down the slope for. some 11 or 12 years. He further testified that he learned of the shaft the morning after the accident, and that he then saw a piece of timber which looked as if it had been recently broken; his inference being that this timber had constituted a portion of a covering for the shaft, and that it had rotted away and fallen into the shaft. After a careful consideration of all the testimony offered on behalf of the plaintiff, we find ourselves unable to agree with the conclusion of the learned circuit judge, who held that:

‘ ‘ In my judgment there has been an entire failure on the part of the plaintiff to establish any negligence in this defendant company, which was the proximate cause of the death of the child.”

We think the question of the defendant’s negligence should have been submitted to the jury. If the shaft had been permitted by the defendant to remain open and unguarded for a number of years, even without actual knowledge on its part, that fact would certainly afford some evidence that the defendant had not exercised reasonable care in the premises, and particularly would this be true if the existence of the dangerous opening was known to those living in the vicinity.

It is urged by the defendant in this court (though the point was not made below) that in any event the verdict was properly directed because the boy was, at the time he met his death, a trespasser, or at best a mere licensee, to whom the defendant owed no duty. Though not properly before us for determination upon this record, as the case must be tried again, we deem it proper to discuss this phase of the question. The boy’s father was a lessee, or, at any rate, an occupant by permission, of one of defendant’s houses in the vicinity of the opening. No fences of any kind marked the boundaries of that portion of defendant’s land which plaintiff and her family might traverse. The entire vicinity was an open common used by the employés of defendant (among whom was the father of deceased) as a pasture for their cows. It was commonly traversed by the boys in their search for wood, and this fact was known to the defendant’s superintendent, and no serious objection seems to have been interposed. We are of opinion that such a license as was possessed by the father imposed upon the defendant the duty to warn him, and those members of his family coming upon the premises with him at its invitation, of such existing dangers as were known to it, or which should have been discovered by it in the exercise of reasonable care. See Powers v. Harlow, 53 Mich. 507 (19 N. W. 257, 51 Am. Rep. 154), and cases there cited.

The judgment is reversed, and a new trial ordered.

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


author: Steere, J.

text:
    ISBELL v. ANDERSON CARRIAGE CO.
    1. Amendment — Declaration—Assumpsit.
    Upon the trial of an action for breach of a contract of agency for the sale of electric automobiles, the court was within its discretion in permitting an amendment to plaintiff’s declaration so as to allege that defendant fraudulently canceled said contract, which, by its terms, was terminable by defendant, if it should become dissatisfied, although its oficiáis had repeatedly expressed satisfaction with plaintiff’s performance; also an amendment increasing the claim of damages; defendant making no claim of surprise and not requiring further time in which to meet the facts so added.
    2. Contracts — Principal and Agent —Satisfaction —Words and Phrases.
    The question of defendant’s good faith in terminating plaintiff’s contract of agency, which provided that the plaintiff should conduct the agency satisfactorily to defendant, was properly submitted to the jury on testimony, disputed by defendant, that it was satisfied with plaintiff’s efforts to perform and fraudulently exercised its option to annul the contract.
    8. Same — Performance.
    But it was entirely within defendant’s judgment whether the acts done and performance attempted were in fact satisfactory, and the justice of such conclusion could not be inquired into by a jury.
    4. Same — Trial—Evidence of Motive.
    After the amendment allowed by the trial judge so as to have the declaration aver bad faith in claiming dissatisfaction with the attempted performance of the agency contract, defendant was entitled to recall its principal witness and show its good faith in canceling plaintiff’s rights.
    5. Damages — Prospective Profits — Speculative Damages. •
    A verdict of $23,474.16 was excessive and improperly based on evidence of the prospective profits, which plaintiff claimed he might have made but for the wrongful termination of his contract for an automobile agency, where he had no established business in the machines which he purposed to sell and which had no market, being new and untried, and where the contract provided that defendant might terminate the relation whenever it became dissatisfied.

      Error to Wayne; Murfin, J.
    Submitted January 15, 1912.
    (Docket No. 59.)
    Decided May 31, 1912.
    Assumpsit by William G. Isbell against the Anderson Carriage Company for breach of a contract of agency. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Geer, Williams, Martin & Butler, for appellant.

      Lucking,Emmons & Helfman, for appellee.
   Steere, J.

This action is brought by William G. Isbell against the Anderson Carriage Company to recover damages for the alleged breach, by wrongful termination, of a contract giving plaintiff and one George D. Grant the agency for sale of defendant’s electric automobiles during a period of five years. . At the time of entering into said contract, the plaintiff and said Grant associated as partners in the enterprise, and-, as parties of the second part, agreed by this contract to ‘ ‘ establish the Anderson Electric Agency for the exclusive sale and care of the electric automobiles which are made by the first party.”

Summarized, the terms of this agreement are: The manner of conducting the details of this agency are to be “such as will be at all times entirely satisfactory to the Anderson Carriage Company.” At the time of the signing of the contract, the second parties shall place an order “for one Victoria top and one coupé top electric,” the second parties to be entitled to a discount of 20 per cent, from the established price list of said Anderson Carriage Company on its electrics, to pay 25 per cent., on placing orders, the balance on delivery of the machines, first parties to refer all inquiries and intending purchasers to the Anderson Electric Agency, and to assist the sales of its electrics by giving personal attention to parties sending to its factory for that purpose. That out of town purchasers coming to Detroit shall have free and sufficient demonstration and examination of machines at their agency. That machines sold to W. C. Anderson, W. P. McFarlane, W. M. Locke, C. A. Newcomb, or W. Kritser will not be considered a violation of the contract. That said contract shall run for a period of five years, subject to the keeping of its terms as stated.

The principal contention in this case centers around the second paragraph of said contract, which is as follows:

“ Second. It is agreed on the part of the second parties that the method of conducting said agency and the detailed care given to each of the Anderson machines which are sold shall be such as will be at all times entirely satisfactory to the Anderson Carriage Company, and the Anderson Carriage Company are to at all times have the privilege of properly investigating the methods which are used in the care and sale of their machines. It being understood that the business policy of such agency will be such as to build up and foster the sale and use of Anderson Electrics in the city of Detroit. This agency shall do business in a building that shall be satisfactory to the first parties and also maintain satisfactory storage and charging stations.”

This contract is dated September 19, 1907, though the testimony tends to show that it was signed three or four days later. Within two days after signing the same the parties executed the following supplemental agreement:

“ It is further understood and agreed that nothing contained in this contract, dated September 19, 1907, between the undersigned parties, to which this is attached and of which this forms a part, shall be construed as preventing, during the time in which such contract remains in force, the parties of the second part thereto from selling gasoline cars; but that the sale, at any time, of such cars by said parties of the second part is expressly allowed and is no infringement of such contract; and, further, that said parties of the second part may store and care for gasoline cars until such time as a sufficient number of electric cars is secured by them for storage purposes to occupy the storage capacity of their garage, the object of this being to give said second parties an opportunity to make .their business a paying enterprise. It is further understood and agreed that said first party shall give said second parties sixty days’ notice to correct any error or mistake that may arise in carrying out the conditions outlined in paragraph two of said contract.
“The Anderson Carriage Company, “By W. C. Anderson, President.
“W. G. Isbell.
“ Geo. D. Grant.”

On August 6, 1908, said George D. Grant assigned to plaintiff all his right, title, and interest in the above contract.

It is the testimony of both parties that it was understood and agreed Isbell & Grant would supply a new garage in which to conduct the business. Before or contemporaneously with the signing of said contract, plaintiff entered into an agreement with one J. S. Farrand, Jr., for the erection of a garage at 730-732 Woodward avenue, in which to conduct the business contemplated by said contract with the Anderson Carriage Company, and leased the same for five years. The plans for said garage were submitted to Mr. Anderson, president and manager of defendant, who expressed himself entirely satisfied with them. Plaintiff further claims that it was understood and agreed by all parties concerned that temporarily during the time of the construction of the Farrand garage the business of this agency should be taken care of in Grant Bros’, garage. The Farrand garage was completed between the latter part of February and 15th of March, 1908. On September 24, 1907, pursuant to the contract, a Yictoria top and a coupé top electric were purchased and $3,280 paid for the same by Isbell & Grant. They were also engaged in the sale of gasoline automobiles as contemplated in the supplemental contract.

On December 31, 1907, defendant served written notice on Isbell & Grant that they were not carrying out the contract in a manner satisfactory to it, naming 12 particulars in which it claimed their methods were not satisfactory or in accordance therewith, and giving notice that, if they failed to correct these matters in a way satisfactory to defendant within 60 days, it would consider the contract canceled. The particulars named are as follows:

“ (1) That your lack of advertising in the daily papers, through the mail, and by demonstration; (2) that your failure to employ proper salesman, manager, battery man, and man to wash, care, and charge machines; (3) that your method of caring for machines which have been left at your place for care; (4) that your method with reference to not being liberal enough in exchange deals; (5) that you fail to foster trade by co-operation with other garages and dealers in gasoline machines; (6) that your methods of having your telephone calls answered; (7) that the methods of Wm. G. Isbell in handling prospective buyers; (8) that your business policy and method in not placing orders with us for electrics in advance of sales being actually made; (9) that the method and business policy in not having our electrics in stock covering the various styles we make ready to deliver in the event of effecting a sale; (10) that the present appliances for charging electrics is not what it should be; (11) that you fail to put forth satisfactory efforts to sell our electrics; (12) that your business policy is not such as to foster the sale and use of Anderson electrics in the city of Detroit.
“ In none of the above-mentioned ways are you giving satisfaction to us or keeping your contract.”

Isbell & Grant replied, vigorously denying that the particulars named in the notice were borne out by the facts or they had failed to observe their contract, asserting their intention and desire to carry out its provisions. On March 2d following, the Anderson Carriage Company sent them written notice that, owing to their failure to carry out the conditions of the contract, “the same is hereby canceled.” Plaintiff’s original declaration alleges as breaches of this contract that defendant—

“ Contriving to injure and deceive, * * * did not, nor would, sell its automobiles to said William G. Isbell and George D. Grant at the terms aforesaid, but after-wards, and at the beginning of the season in which the sale of defendant’s machines would be the most profitable, * * * to wit, on March 2, A. D. 1908, refused to sell any of said automobiles or parts thereof to said William G. Isbell and George D. Grant, although often requested so to do, and * * * did not, nor would, give them the exclusive sale of said automobiles or parts thereof for the time stipulated, but, on the contrary, * * * said defendant frequently and continuously sold said defendant’s machines and manufactures to divers persons other than the said William G. Isbell and George D. Grant, in violation of its agreement, * * * ” to plaintiff’s damage $20,000. ’

On December 20, 1910, during the progress of the trial, amendments to plaintiff’s declaration were filed by leave of the court, and against defendant’s objection, enlarging the ad damnum clause to $100,000 and adding a third count, as follows:

“And plaintiff further avers that defendant was not at any time in good faith and honestly dissatisfied with any of the actings or doings of the said Grant and Isbell, or of either of them, in the performance of the said contract, and that the said plaintiff had repeatedly expressed its satisfaction therewith, but that on, to wit, March 2, 1908, with fraudulent, surreptitious and ulterior design to cancel the said contract and to be freed of the duties and obligations therein imposed upon the said defendant, and to unlawfully and fraudulently make other arrangements in relation to the sale of its said cars which should be more profitable, the said defendant did on said date cancel said contract.” .

Error is alleged on the ruling of the court in allowing the amendment. No claim was made by counsel of surprise, nor request for delay, and we think it was not an abuse of discretion for the court to allow the amendment under the authority conferred by section 10268, 3 Comp. Laws. Defendant pleaded the general issue. The cause was tried before a jury in Wayne circuit, resulting in a judgment for $23,474.16.

Subsequently defendant moved the court to set aside the judgment and grant a new trial, which motion was denied. When this contract was canceled, it had been in effect over five months. Isbell & Grant had sold one of the two machines bought when said contract was entered into, and had ordered no more. Prior to the date of the contract, defendant had sold but one of its electric automobiles in Detroit. It had previously been engaged in the manufacture of carriages, and first put its automobiles on the market in 1907. They were new and practically unknown, and were entering the field to compete with older and well-established cars.

It is the claim of plaintiff that it was well understood between the parties that the enterprise was in a formative period under adverse circumstances, at a time of business depression, in the fall and winter, an inopportune time for sales, striving to introduce a new car on the market in competition with well-known and popular cars; that the business of conducting and developing the agency was entered upon and faithfully followed out according to the terms of the contract and mutual plans of endeavor subsequently agreed upon, and approved by Mr. Anderson, manager of defendant, with whom almost daily consultations were held; that they occupied their time in talking the car to citizens and demonstrating it, interviewing prospective customers, advertising, and by other efforts laying the foundation for future sales, at the same time planning a more extensive campaign of advertising and active solicitation to introduce the car to the trade, when the new garage was completed, which had been mutually agreed upon as an opportune time, with all of which, as done and disclosed, and with the general method followed, Anderson, from time to time, had expressed entire satisfaction, until he surreptitiously entered into negotiations with another selling agency, called the Standard Auto Company, to take the business on a commission more advantageous to defendant, whereupon the first notice of December 31, 1907, was served, further consultation refused, and all co-operation withdrawn by defendant.

On the other hand, it is claimed by defendant that the agency was not properly conducted and pushed; that the methods pursued were not satisfactory; that Anderson, while he protested repeatedly and urged them to change their methods, nevertheless endeavored in good faith to aid and encourage them by sending prospective customers and advising as to the policy; but they were dilatory and neglectful, were not doing sufficient advertising and exhibiting, bought no more cars after they sold the only one they did sell, did not employ a competent salesman or properly care for the automobiles, and in various other ways, as specified in the notice given, failed to carry on the business of the agency satisfactorily or in a manner which portended ultimate success; that he did not tell them he was satisfied with their methods, but directly to the contrary; that he did not cancel the contract because others would take the agency on a lower commission, but because their methods were unsuccessful and unsatisfactory and their agency a failure.

In the details of this controversy abundant issues of fact were presented by the conflicting testimony, the import and competency of much of which are contingent, in many respects, on a proper construction of the contract the parties entered into. On the trial it was claimed by plaintiff that the reasonableness, honesty, and motives of defendant in declaring dissatisfaction were open to inquiry and attack; that the dissatisfaction must be honestly entertained, and, if it was feigned or in bad faith, for some ulterior purpose, it would be no defense. The trial court admitted testimony offered by plaintiff bearing upon this question and submitted the same to the jury as an issue of fact, giving the following instruction:

You will bear in mind that it is the claim of the plaintiff in this case that they really were satisfied, that they frequently expressed satisfaction, and it is the plaintiff’s claim that this is merely a subterfuge, an evasion, if you please, to express a dissatisfaction surreptitiously and improperly, taking advantage of this clause in the contract that they might be relieved of its obligation. So, that, gentlemen of the jury, is the primary issue for you to determine — not whether or not they had grounds for dissatisfaction, but were they in truth. and fact dissatisfied. For, under the testimony and the facts as developed in this case, if they were - dissatisfied, this plaintiff has no cause of action. But if, on the other hand, the defendants were satisfied, and simply claimed a dissatisfaction as a subterfuge by way of an evasion, not in good faith, but solely to be relieved of the obligation of the contract, then and in that case this plaintiff is entitled to recover.”

It is urged by defendant that, under the express provisions of the contract, it had the right to terminate the same at any time on the ground of dissatisfaction, that the reasonableness or justice of such dissatisfaction could not be inquired into, nor was defendant’s good faith and sincerity in such action a proper subject for investigation Therefore all testimony in relation to such issues was erroneously admitted, and those questions improperly submitted to the jury.

Contracts of this general character, known as “ satisfaction contracts,” in which one party agrees to perform his part to the satisfaction of the opposite party, are fruitful and frequent sources of litigation, owing to the disappointments they so often bring to the party who has taken the chance of performing satisfactorily, and the difficulty of ascertaining what really constitutes satisfaction, which primarily is but a mental process. Such contracts are enforceable, however, to the extent the intention of the contracting parties can be ascertained. If parties voluntarily assume the obligations and hazards of a satisfaction contract, their legal rights are to be determined and adjudicated according to its provisions. It is elementary that courts cannot make contracts for parties nor relieve them of the consequences of their contracts, however ill-advised.

In many cases of this nature which have been before various tribunals, there is recognized two quite well-defined classes — one where the personal taste, feeling, sensibility, fancy, or individual judgment of the party to be satisfied are especially involved; the other where mechanical utility or operative fitness in relation to which some standard is available are bargained for. In the former class the authorities preclude disputing the propriety or reasonableness of the declaration of dissatisfaction on the part of the individual entitled to exercise it. It is said to be with him purely a personal matter of which he is made the sole judge. It being his right to say whether he is satisfied or not, it cannot be left to another to say that he ought to be satisfied.

In the latter class of cases the authorities are more conflicting. In numerous decisions it has been held, under the phraseology of the contracts being considered and the attending circumstances, that not only the honesty of the declared dissatisfaction may be questioned, but even, in special instances, the adequacy and reasonableness of the ground for such action are open to investigation. Wood Machine Co. v. Smith, 50 Mich. 565 (15 N. W. 906, 45 Am. Rep. 57). We think the contract under consideration falls more closely within the former class. It was an agency in the nature of employment to render services involving something more than the operative fitness or mechanical utility of a tangible thing. It involved personal efficiency, energy, initiative, business experience and ability to formulate methods and make them successful, as well as co-operation and confidential relations with defendant, of such a character as to lead to the conclusion that the parties contemplated, and provided for, the right of defendant to terminate the relationship when, according to its own fancy and judgment, the work done and methods pursued were not satisfactory. In Tyler v. Ames, 6 Lans. (N. Y.) 280, it was said of an agent hired to sell engines for one year if he could do th® work “satisfactorily : ”

“The right of determining whether the plaintiff filled the place of agent satisfactorily must, from the nature and necessity of the ease, belong to the person whose interests are directly affected by the plaintiff’s action. To require the employer, under such a contract, to prove that plaintiff did not fill the place satisfactorily, would be to require of him an impossibility, unless his own oath was taken as to his mental status on the subject. If he is required to prove facts and circumstances that would justify him in feeling dissatisfied with the manner plaintiff filled his office, it would be annulling this clause of the contract, as, without such a clause, he would have the right to dismiss the plaintiff if he did not properly perform his duties.”

In Koehler v. Buhl, 94 Mich. 500 (54 N. W. 159), this court said:

“It is settled law that, where a person contracts to do work to the satisfaction of his employer, the employer is the judge, and the question of the reasonableness of his judgment is not a question for the jury.”

In Sax v. Railway Co., 125 Mich. 252 (84 N. W. 314, 84 Am. St. Rep. 572):

“ Under the rule as settled in this State, the reasons for, or justice of, the defendant’s satisfaction, cannot be inquired into ” — citing numerous cases.

Though this is the law, it is also well settled that, if the dissatisfaction claimed is shown to be insincere, in bad faith, dishonest, or fraudulently set up as a subterfuge, it will be no defense. 9 Cyc. p. 624; 3 Page on Contracts, § 1390; Philadelphia, etc., R. Co. v. Howard,, 54 U. S. 308. In Brucker v. Railroad Co., 166 Mich. 330 (130 N. W. 822), plaintiff sued to recover for wrongful cancellation of a contract for grading, in which it was provided that, if the work was not done satisfactorily to defendant or its engineer, defendant could take over the work. In sustaining the contention of plaintiff on a proposition analogous to the one now under consideration, this court said:

“The power to terminate a contract must be exercised in good faith, but the burden is upon the contractor to show a fraudulent exercise of the reserved power. While the construction of the contract was a question of law, the conduct of the defendant in taking over the work is open to the jfiry upon the question of fraud and bad faith, and we think there was evidence from which it may have been inferable.”

The issue was raised in this case by plaintiff’s amended declaration. To maintain it, plaintiff introduced evidence of repeated expressions of approval and satisfaction, by Anderson, as to what was done and the general method of conducting the business up to the time the notice of December 31st was served and of refusal to confer or cooperate thereafter, of dealings by defendant with others which resulted in a contract giving them the agency on better terms for defendant, before the 60 days specified in the contract" and notice had expired.

While the provision found in the supplemental contract, that 60 days’ notice shall be given to correct any error or mistake that may arise in carrying out the conditions outlined in paragraph number two of said contract, is somewhat obscure and does little to illuminate the doubtful portions of the paragraph referred to, it does make plain that, when dissatisfaction first arises, another chance will be given during a period of 60 days to make things satisfactory before a final decision is reached. Good faith and an honest compliance with this require that during the 60 days defendant shall reserve judgment, remain in a receptive mood, and be ready and willing to co-operate and approve it, if possible, to the end that the contract may continue if the causes of dissatisfaction shall be in truth removed. In Gwynn v. Hitchner, 67 N. J. Law, 654 (52 Atl. 997), where a color mixer hired to work to the satisfaction of his employers was discharged, and the question of good faith was raised, the court said:

"But, as men are always acting and talking, their acts and words continually afford material from which rational inferences may be drawn as to the mental state and attitude of the actor and speaker.”

We think there was evidence in this case as to what was said and done by defendant’s manager which authorized the action of the trial court in submitting the question of bad faith to the jury.

Plaintiff’s amendment to his declaration, charging bad faith, was filed and served upon opposite counsel during the progress of the trial and after Anderson had been on the stand as a witness. He was recalled to be interrogated specifically as to the allegations in the amendment directed against his good faith and honesty of purpose. This was not allowed. The following occurred:

“By Mr. Geer (stating some matters alleged in the amended declaration): I want .to ask you whether or not—
“Mr. Emmons: I object to that.
The Court: I sustain the objection. You need not go any farther with that. * * *
“Q. I will ask you this question: Whether or not, in declaring that contract forfeited, you acted in good faith. (Objected to. Excluded. Exception, taken.)
“Q. Did you cancel that contract for the purpose of making another contract thereby expecting to obtain better conditions ?
The Court: (To the witness): Stand down; that is enough of this. It has all been gone over on direct examination.”

At the time of witness’ previous examination, the amended declaration had not been filed or served, and these specific questions had not been' asked. This important issue was largely one of mental status. Purpose,- motive, and intent were involved, and defendant was entitled to make full and direct inquiry along those lines.

“It has become the settled law in this State that in cases where intent or motive are involved in the issue, the person to whom such intent or motive is imputed is a competent witness to testify in regard thereto.” Spalding v. Lowe, 56 Mich. 366 (23 N. W. 46).

“ When the only person who knows the fact (what his intentions were) is accessible as a witness, his answer must necessarily be more direct evidence than’any other; and, if there is any reason to suspect his candor, the jury can make all the allowances called for by his position and demeanor.” Watkins v. Wallace, 19 Mich. 57.

The evidence offered was admissible and its rejection erroneous.

It is also the opinion of this court that the verdict is excessive. It was manifestly awarded on the theory of prospective profits covering the balance of the five-year period mentioned in the contract, and based on sales made by defendant after it took over the business. During the five and one-half months Isbell & Grant had the agency, they were also engaged in other business, selling gasoline cars. They devoted but a part of their time and expended but little money on the agency while they had it. They hired little help, and did comparatively little advertising. They sold one car.

Conceding all that is claimed as to their reasons, methods, efforts, plans, and purposes while they had the business, it was not yet successful or profitable. When their contract was canceled (and, in effect, 60 days before, when the first notice was served on them), their efforts ceased, and they were free to devote themselves to other avocations. From March 2, 1908, when the contract was canceled, to December 16, 1910, when this case was tried, defendant had.sold 207 cars at an alleged profit to its selling department of $15,000. This was the result of a vigorous campaign, instituted at heavy expense to introduce, and develop a market for, its output, which was of vital importance, for its very existence as a manufacturing institution and previous investments in that connection were staked on a market for what it manufactured. Two large and expensive garages were built and from three to five salesmen were employed, from $300 to $500 per week was expended in advertising, and a force of over 30 men kept to care for customers’ cars, and do other work in that connection. Progressive methods were' adopted and pushed on a comprehensive and liberal scale.

There is no proof or presumption that Isbell & Grant would have been able to do all these things, or could have as successfully managed the business and worked up a market for the car. This was not a case of infringing on an old established business. It was building up a new business where none existed. Prospective profits on an established business can often be estimated in the light of the past with a reasonable degree of certainty; but a new business is in the realm of uncertainty and conjecture. It has sometimes been stated as a rule of law that prospective profits are so speculative and uncertain that they cannot be recognized in the measure of damages. This is not because they are profits, but because they are so often not susceptible of proof to a reasonable degree of certainty. Where the proof is available, prospective profits may be recovered, when proven, as other damages. But the jury cannot be asked to guess. They aró to try the case upon evidence, not upon conjecture.

This contract was for a commercial agency to sell a commodity for which there was no established market— an experiment which, by the terms of the contract and surrounding circumstances, embodied more elements of uncertainty than are often found in combination. The contract did not specify an amount of work to be done at a fixed price, nor designate in detail the methods of doing business, but did require they should be satisfactory to defendant. Isbell & Grant in express terms were not required to sell any special number of cars, or, in fact, any cars at all. The contract was liable to be terminated at any time on 60 days’ notice. To reach the verdict rendered, the jury necessarily assumed, and found as facts, that the agency would have remained satisfactory to the defendant, and that the contract would have continued in full force for five years; that Isbell & Grant would have expended as much money, employed as much and as good help, constructed as many and as large garages, pursued as effective methods and developed the business as successfully as defendant had done. This was all in the realm of conjecture. In Dowagiac Manfg. Co. v. Corbit, 127 Mich. 473 (86 N. W. 954, 87 N. W. 886), this court said:

“ The sale of a given piece of machinery in a new territory, where its merits or demerits are not known, depends upon so many contingencies that no one can speak with any reasonable certainty of how many will be sold by a given firm in a given time. Any attempt to fix the number of sales would be mere guesswork, and is too speculative to form a safe basis upon which to compute damages.”

Plaintiff’s counsel claim this case is controlled by Schiffman v. Peerless Motor Car Co., 13 Cal. App. 600 (110 Pac. 460), and Mueller v. Mineral Spring Co., 88 Mich. 390 (50 N. W. 319). The first mentioned is a case in which plaintiff recovered from defendant commissions on cars sold in his territory in violation of a contract for exclusive agency. In that case plaintiff had an established, going business, running an automobile agency in Los Angeles, Cal., with a contract of exclusive agency for a definite period, by which he agreed to purchase and sell a fixed number of defendant’s motors in a fixed territory. The contract contained no satisfaction clause under which defendant might prematurely terminate it. Defendant was engaged in manufacturing automobiles in Toledo, Ohio. It failed to fill.plaintiff’s orders for cars, for which he had a market, and surreptitiously invaded his territory while his contract was in force, and while he was complying with all its requirements, and sold certain of its cars in violation of the contract. Each sale was an infringement on an existing contract, and he was held entitled to his commission on each car so sold. It was an established business with an established market for a well-known commodity for a fixed period. In Mueller v. Mineral Spring Co., supra, plaintiff, a druggist in Detroit, had a contract for a year giving him the exclusive agency in that city for the sale of defendant’s Bethesda mineral spring water, a well-known commodity having an established market. He had been selling it for a year before entering into the contract in question. Before the expiration of the contract defendant canceled it and appointed another agent in Detroit, who took the going business up where plaintiff left off, and enjoyed the established trade for five months before plaintiff’s contract expired. Plaintiff was allowed to prove the sales made during the five months, in connection with other evidence as to the nature, amount, and profits of the business. That was also a case of a fixed contract for a definite period to continue an old established business in the sale of a well-known commodity for which there was an established market. These cases are not tinctured with the uncertainties and infirmities surrounding the contract in question, and are not controlling. The underlying principle which marks the distinction is suggested in Sax v. Railway Co., 129 Mich. 502 (89 N. W. 368), which was a case involving employment so long as plaintiff’s conduct and services were satisfactory. This court there said:

“In order to reách a verdict, it was necessary for the jury to fix the time when the contract would be terminated. That being fixed, and his age and monthly wage being found, the present value of his services could be determined. The jury must then determine the time of the interruption, and the difference between the two' amounts would be the amount of the judgment. Upon no other theory can the verdict be sustained. But the record contains no evidence upon these points, and, in the very nature of things, none could be produced. There is no foundation for even a guess by a jury upon either question of fact, because either could terminate the contract at will, and it was equally impossible to tell how much of the time he would be employed. The jury were turned loose into a field of pure speculation and conjecture, without any practical or tangible basis upon which to assess damages. Under such circumstances none can be assessed” — citing numerous cases.

In the case at bar, in order for the jury to reach a verdict, it was necessary for them to fix a time when the contract would terminate, and they were so instructed by the trial judge. They apparently did fix it at five years, but there was no foundation for even a guess upon that question of fact, because by its terms the defendant could terminate it on 60 days’ notice, at any time it was honestly dissatisfied with the method of conducting the business; and their conclusions that Isbell & Grant would have made equal expenditures, shown equal energy and ability, and adopted equally successful methods in developing a new business with equal profit, have no tangible basis of probative facts, and are but conjecture and surmise. Under an executory “satisfaction contract” of this nature, for an uncertain undertaking to develop a new and untried business, and build up a market for a new and unknown commodity, future profits are too speculative, contingent, and uncertain of ascertainment to be a measure of damages in the absence of definite stipulation therefor.

This contract was canceled, whether rightfully or wrongfully, at the expiration of five and one-half months. For that period it was executed. The balance of the time it might have run it was executory. Both parties treated it as ended, and made no further attempt to carry out its provisions. So far as it was executed, if wrongfully canceled, plaintiff is entitled to recover for all losses sustained in its execution and all benefits conferred on defendant, including time devoted to it, work done, obligations incurred, or money properly expended for labor, machinery, supplies, or building, and all other proper damages for breach of an executed contract, to be ascertained and determined according to the facts proven.

Judgment is reversed, and a new trial ordered

Moore, 0. J., and McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: McAlvay, J.

text:
    HATCH v. BOARD OF SUPERVISORS OF CALHOUN COUNTY.
    1. Trial — Directing Verdict — Concessions.
    Plaintiff’s concession, upon moving the court to direct a verdict in his favor, that there was no dispute as to the facts, •precluded him from making the contention, on error, that there was a question for the jury.
    2. Attorney and Client — Drain Commissioner — Expenses — Compensation.
    Attorney’s fees, incurred by a county drain commissioner in mandamus proceedings to collect his salary as commissioner, were not necessary expenses incurred in the performance of the official duties of drain commissioner, and the county is not liable to such attorney for the value of his professional services. Act No. 118, Pub. Acts 1909.
    Error to Calhoun; North, J.
    Submitted January 9, 1912.
    (Docket No. 27.)
    Decided May 31, 1912.
    Jesse M. Hatch presented to the board of supervisors of Calhoun county his claim for services performed. From, the disallowance thereof by the board, claimant appealed to the circuit court. Judgment for defendant upon a directed verdict. Claimant brings error.
    Affirmed.

      Jesse M. Hatch, in pro. per.

      Robert H. Kirschman, Prosecuting Attorney, for defendant.
   McAlvay, J.

The claim of appellant in this case arose on account of services as an attorney rendered by him to Arthur H. Chase, county drain commissioner for Calhoun county, in certain mandamus proceedings against the clerk and treasurer of said county to compel the clerk to issue, and the treasurer to pay, an order for his salary for the month of January, as provided by Act No. 118, Pub. Acts 1909, which services appellant claims were a legal and proper charge against said county. From a disallowance of this claim by the board of supervisors of Calhoun county, appellant appealed to the circuit court, where, at the close of the trial, both parties asked for a directed verdict. The claimant’s motion was denied by the court, and a verdict was directed in favor of the county. The case is brought here for review upon writ of error.

Appellant assigns error upon the action of the court in instructing a verdict for defendant, and in refusing to instruct a verdict in his favor. It is also claimed by him that the court was in error in not submitting the case to the jury.

The concession of appellant, when he moved the court for a directed verdict at the close of the trial, that there was no dispute upon the evidence in the case, precludes him from claiming before this court that there was a question for the jury. The opinion in the case in which the services were rendered for which it is contended defendant is liable, and to which reference is had, shows the question there involved, and is reported in Chase v. Hart, 162 Mich. 74 (127 N. W. 256).

It is contended on the part of the appellant that these services were incurred as necessary expenses by the drain commissioner in the discharge of the duties of the office, to be paid by the county under section 5 of Act No. 118, Pub. Acts 1909. The proceeding begun by the drain commissioner to enforce the payment of his salary was not an official duty imposed upon him by law. It was the enforcement of a private right, and, in our opinion, cannot be classified as actual necessary expenses incurred in the performance of the duties of his office. The drawing of a salary is doubtless a pleasant and satisfactory act, but we do not think that any contingency has ever arisen where the act has been designated by statute as the discharge of an official duty.

In the case cited', supra, the files and records show that the validity of a drain tax was not in question. No question of taxation or of public right was involved. The prayer of the petition drawn by appellant was confined to the question of the drain commissioner’s salary. It prayed that a mandamus issue to compel the county clerk to issue an order upon the county treasurer for his salary for the month of January, 1910, and that said treasurer pay the same.

The cases cited and relied upon by appellant are those involving the expenses of public officials which were necessarily incurred in the performance of official duties, and are distinguishable from the instant case, where the matter is of no interest to the municipality. The legislative intent by this act in fixing a salary for these officials in lieu of the former fee system was for the purpose of fixing and limiting compensation, in the interest of the public. The construction contended for is not consonant with such intent and cannot be accepted. The trial court was not in error in instructing a verdict for defendant.

The judgment is affirmed.

Moor®, C. J., and Steer®, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Blair, J.

text:
    STEARNS SALT & LUMBER CO. v. NEWBERG.
    Adverse Possession — Limitation of Actions — Trial—Appeal and Error.
    Giving to defendant’s testimony its strongest probative force, in ejectment, there was evidence tending to support his claim of adverse possession, and raising a question of fact which should have been submitted to the jury, where it appeared that defendant occupied land of plaintiff abutting on a lake with a fishing shanty for 35 years, not knowing who owned it but claiming title as a squatter; sinoe defendant was a trespasser, subject to the usual remedies from the beginning, and the question of the hostile character of his possession was erroneously decided by the trial court as a question of law.
    Error to Mason; Withey, J.
    Submitted January 16, 1912.
    (Docket No. 80.)
    Decided May 31, 1912.
    Ejectment by the Stearns Salt & Lumber Company against Andrew Newberg, to try title to real property. A judgment for plaintiff upon a verdict directed by the court is reviewed by defendant on writ of error.
    Reversed.

      Robert J. Quail, for appellant.

      A. A. Keiser, for appellee.
   Blair, J.

This is an action of ejectment to try the title to a small parcel of land, 12 feet wide and 22 feet long, entirely occupied by defendant’s fishing shanty, upon the shore of Pere Marquette Lake, and within the limits of the city of Ludington. It was agreed that the record title to the land was in the plaintiff; but defendant claimed to have acquired title by adverse possession. The circuit judge directed a verdict for plaintiff, and defendant seeks a reversal of the judgment by this court.

In determining whether there was any testimony tending to support defendant’s claim, we must give to the testimony in his favor its greatest probative force. So considered, the testimony tends to show that in 1875 the defendant constructed the fishhouse in question, to be used by him in carrying on his business as a fisherman. He testified:

"I have occupied it since 1875. I claimed to own the land from the time that I went on there. I thought I had a right to go there. I never made any lease with anybody. I never got any permission or anything of that kind from anybody. I did not know who owned the record title of the property over there. I couldn’t tell who owned it. The land is sandy. There is nothing carried on over there outside of the fishing business. * * * The shanty is calculated to be 24 feet long and 12 feet wide. The shanty rests part on the land and part on the water. We have got sills under the shanty and under the dock, some long sills. The sills extend out under the dock in front of the shanty. The dock is 8 feet wide. * * * The shanty is lumber. It is built with sills. There is 2-inch floor on the top of the sills, 12 feet long, most of them 6 inches wide. The roof is first boards and then tar paper. The shanty is not built of stuff that I picked up along the lake. I generally buy my stuff. ' The last I got at Cartier’s mill. This shanty has been there on this spot 35 years. It is the same shanty, only it has got to be fixed up a little bit, repaired from time to time. * * * I carry on my business over there as long as I can, till we freeze out in the fall of the year, and start as early as I can in the spring, generally in the month of March. We carry on our business every day steady, when we can get out. * * *
“Q. Had there been any shanties similar to this of yours torn down there or taken away, like yours ?
“A. No; not like mine; none of them.
“Q. I mean have there been others like yours that were torn down ?
“A. No; not any; not any fish shanties, except what caved in, and they had to rebuild them up. * * *
“ Q. Had there been different persons over there fishing at different times ?
“A. Always the same persons; the same ones is there yet that has been; and some more come. * * *
“Q. Why did they cave in?
“A. Sometimes when the hard current there, on the start, sometimes. The sand seemed to be like quicksand.
“ Q. The water washed it away ?
"A. The water washed it away; and it seemed to sink right down. It was caved in there about three or four times already, that I know of, since I came there, in different places, except in my place, what I owned; there it never caved in. I claim to own the land what X got my shanty on, and dock, and so on. I never paid any taxes on it. X told people that X claimed to own it as quick as I moved on it. X always tell it was my place. I told most every one I know. Mr. Palm is one. X never measured it; but I know how far it goes, how far X occupy it. I never paid any taxes on it.”

He further testified, on cross-examination:

“Q. When you moved on the other side, on the west side of the lake, did you think that was government land ?
“A. No; I didn’t know whose it was. * * *
“Q. Upon the first trial of this case you testified: ‘ There was some land where we calculated to move first, towards Butters; and then they told us not to move over there. They said we should move over there; but that belonged to the government.’ Do you remember testifying to. that ?
“A. I don’t remember anything like that. I didn’t know who it belonged to, only—
“Q. Well, did you testify to that upon the first trial, or did you not ?
“A. I don’t remember that. * * *
“Q. Then I asked you this question, ‘You thought the government owned it ? ’
“A. No.
“Q. And didn’t you answer: ‘Yes; we thought the government owned it; but then we found out that they didn’t ? ’ Did you testify to that ?
‘‘A. I don’t remember. * * *
“Q. And didn’t I ask you this: ‘When did you find out that the government didn’t own it ? ’ And you answered : ‘ I found it out when we got a notice. We wrote
to the government; and they said they hadn’t owned it.’ Did you testify to that ?
“A. Why, I don’t know who owned it, if they didn’t own it.
“Q. And I asked you this question, ‘ Up to that time you supposed the government owned that land ? ’ And didn’t you answer: ‘We had a right to stay there. I didn’t know who owned it, whether the government or anybody. I thought it was like a squatter’s claim; but we wanted to find out who did own it for sure.’ Didn’t you answer that ?
“A. Maybe I did answer that; but I don’t know who owned it today.
“Q. You say you don’t know today who does own it ?
“A. No, only that possibly I may. I claim myself to. But I don’t know who owned it, or got title to it. It probably belonged to somebody; but I can’t tell who. * * *
“Q. You don’t claim to have bought this, or paid for it to any one ?
“A. No; but sometimes we get land in this country by squatting; squatters generally get land in this country, too.
“Q. Is that what you understand you did in this case ?
“A. Yes, sir.
“Q. You moved on there as a squatter ?
“A. Yes; and occupied it ever since. * * *
“Q. Why didn’t you pay rent over there ?
“A. Who would you pay it to ?
“Q. I don’t know. Was that why you didn’t pay it?
“A. Why, it was my own place. Why should I pay rent ?
“Q. You think it was your own place ?
“A. Yes, sir. * . * *
“Q. Didn’t I ask you this question upon that trial: ‘ Your position in this case is, or your claim is, that, nobody else owns this land?’ and you answered, ‘Yes.’ Is that your claim that nobody else did ?
“A. I thought I said I owned it more than any one else.
“Q. Didn’t you testify in answer to that question, ‘Your position in this case is that nobody else does own it ? ’ And you answered, ‘ Yes.’
“A. Why, somebody, I suppose, must have owned it.
“Q. And then I asked you this question, ‘Then nobody else has a right to put you off ? ’
“A. ‘Yes; that is what I claim.’
Q. Is that what you testified to ?
“A. Yes; that is what I claim; they had no right to put me off. * * *
“Q. Now, I want to get this clear. Do you say here that at the time you wrote to the government office that that was for the purpose of finding out who owned it ?
“A. Yes, sir.
“Q. Now, you have testified that you thought you owned it. Now tell us what you mean.
“A. Well, I owned it all right enough; but I mean all over the whole island, I mean.
“Q. You were writing about the entire point, were you?
“A. The entire point, yes; that is all.”

The time he wrote to the government was in 1908, after notice to quit.

The trial judge bases his decision largely upon two findings of fact: (1) That defendant supposed that the Federal government owned the land; (2) that when the building was put there the water was under it, and the lake was a meandered lake. Summing up at the conclusion of the charge, the judge said:

“ I do not believe that a man who goes upon shore line property, where even the shore line itself changes from day to day and from week to week and from month to month, and is never well defined and is never established, and locates and erects a pier of a very frail nature in the water, and attaches to it a building, which was at that time over the water, and says that he thinks the Federal government owns it, and does not pretend to say that he ever changed his mind through all the years that he has occupied it, or ever knew any differently, and says that he went there as a squatter and continued there as a squatter, I do not believe that man can say he has obtained title by adverse possession, and I so hold, and give the defendant the benefit of an exception.”

We do not think it can be held as an indisputable fact that defendant supposed that the Federal government owned the land; and there is no testimony to support the second finding. It is the claim of plaintiff’s counsel, however—

“That the defendant has occupied by permission and indulgence, without color or claim of title, and in a manner entirely consistent with title in the plaintiff, as follows,” etc.

We think the defendant’s testimony, if credited by the jury, would have unquestionably supported a finding of all of the elements of an adverse possession, unless it be the element of hostility. As to this element, defendant testified that he built his fish shanty upon the land, supposing that some one owned it; but, not knowing who, he claimed to own it from the outset, and so told almost every one he knew, and'- that he never had permission from anybody to occupy it; that he used and occupied it for 35 years, during the fishing season, as any one would use his own property. Under his testimony, he was a trespasser from the outset, and subject to any legal remedies the owner might see fit to invoke on account of his occupancy, when discovered; and it was for the jury to say, under the circumstances, whether his open, visible, and notorious possession was, or was not, a hostile possession, and should not have been discovered to be such by the owner more than 15 years before bringing this action. There may be some custom relative to the placing of these fishing shanties along the shore which distinguishes their occupancy from other buildings as notice of an adverse claim; but, if so, it does not appear in this record. We are therefore of the opinion that the courf; should have submitted the case to the jury.

The judgment is reversed, and a new trial granted.

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


author: Ostrander, J.

text:
    TERRY v. TERRY.
    1. Competency — Assignment of Mortgage — Estates of Decedents.
    Where at the time of assigning a mortgage constituting practically his entire estate to one of his sons, the grantor had sufficient mental capacity to understand the business in which he was engaged, knew and understood the extent and the value of his property and how he wanted to dispose of it, and was able to keep the facts in mind long enough to plan and effect the conveyance ini question, without prompting and interference from others, his act was valid.
    2. Estates of Decedents — Fraudulent Conveyances — Testamentary Disposition of Estate — Debtor and Creditor.
    As to one son whom decedent owed a sum of money, the transfer of nearly all decedent’s property without consideration, was invalid.
    3. Judgment — Res Judicata — Estates of Decedents.
    The allowance against decedent’s estate by commissioners on claims, from whose finding no appeal was taken, of an indebtedness to one of decedent’s sons, conclusively established decedent’s indebtedness to the claimant.
    4 Same — Intervening Parties — Executors and Administrators — Equity.
    It is within the province of the court of equity, on appeal, to enter a decree against the assignee of the mortgage in whose suit for foreclosure the administrator of the assignor’s estate intervened by answering defendant’s cross-bill, and by going to hearing without objection on the contention of the estate that the assignee of such mortgage took the same subject to the expenses of administering said assignor’s estate. Act No. 326, Pub. Acts 1905.
    Appeal from Oakland; Smith, J.
    Submitted January 24, 1912.
    (Docket No. 68.)
    Decided May 31, 1912.
    Bill by John P. Terry against Isaac E. Terry and another for the foreclosure of a mortgage. Angus Mc-Callum, administrator of the estate of George Terry, deceased, intervened. From a decree for defendant and in favor of said intervener, complainant appeals.
    Reversed.

      Perry & Lynch, for complainant.

      Davis & Bromley, for defendant Terry.

      H. M. Zimmermann, for defendant McCallum.
   Ostrander, J.

The original bill was filed August 24, 1909, to foreclose a real estate mortgage made by Isaac E. Terry and Yiola, his wife, February 8,1908, to George Terry, to secure payment of a promissory note for $1,600, due one year after date, with interest at 7 per cent. The mortgage was recorded March 6, 1909. A deed of assignment of the debt and mortgage was made by the mortgagee to complainant dated March 25, 1909, and recorded April 17, 1909. The mortgagors only were made defendants, and they answered the bill, claiming also the benefit of a cross-bill. The answer denies that the sum due and unpaid on the note and mortgage is the original debt with interest, alleges that the mortgagee was indebted to defendant in a considerable sum, which, if the mortgage had not been assigned, would constitute a set-off, alleges further that the complainant paid nothing for the assignment of the debt and mortgage, but took the assignment thereof after the debt was due, with knowledge of defendant’s counterclaim and for the purpose of collecting the same for the mortgagee.

The grounds of affirmative relief, stated in brief, are: George Terry, the mortgagee, died April 15, 1909, intestate, his heirs at law being George W., John P., and Isaac E. Terry, his sons. Angus McCallum was appointed administrator of his estate, and was unable to find any property belonging to the estate, except such as was claimed by John P. Terry, the complainant. George Terry was mentally incompetent when he made the assignment of the note and mortgage, the assignment was brought about by undue influence, by means of persuasions and threats, and statements that said George Terry would lose the amount of said mortgage unless he assigned it to said John P. Terry. The assignment was made for the express purpose of having the said John P. Terry collect the debt evidenced by the note and mortgage for the use and benefit of the said George Terry, assignor. No consideration for said assignment was paid by the said John P. Terry; and the assignment was a fraud upon the creditors of George Terry; one of them being defendant and cross-complainant. The commissioners on claims appointed in the matter of the estate of George Terry had not determined what claims are outstanding^ but defendant and cross-complainant avers that besides his claim there are others. Upon information and belief it is charged that there is no other property belonging to the estate of George Terry, except that represented by the note and mortgage. The prayer is that the assignment of the mortgage may be set aside and canceled and the mortgage be declared to be a part of the estate of George Terry, deceased; if the mortgage is not set aside, that the amount of the claim of said cross-complainant against said George Terry be allowed as a set-off against the amount due on the note and mortgage; that Angus McOallum, administrator, etc., and George W. Terry, may be made parties defendant in the cross-bill, and be required to answer the same.

A subpoena was issued for the defendants named in the cross-bill and was served. Complainant filed a replication and answered the cross-bill. An order was made taking the cross-bill as confessed by George W. Terry. Angus McOallum, the administrator, answered, setting up, among other things, that he had been unable to find any property belonging to the estate of George Terry, deceased, of which he could possess himself, and that he knew of no property except such as was specified in the warrant and inventory filed by the appraisers, the title to which property was claimed by complainant, John P. Terry. Upon information and belief, he alleges that the assignment of the note and mortgage was a pretended assignment, of no force and effect; that the commissioners on claims in the said estate of George Terry, deceased, determined that there was due to defendant Isaac E. Terry from the estate $338.30, and to another claimant $9. He joins with the cross-complainant in his prayer for affirmative relief as in said cross-bill indicated. The cross-complainant filed a replication. Later, by virtue of certain orders made and filed in the cause, complainant filed a supplemental answer to the matters set up in the cross-bill of the defendant Isaac E. Terry, in which he alleges that no appeal had been taken from the determination of the commissioners on claims; said commissioners having disallowed a portion of the claim of the said Isaac E. Terry and allowed him $338.30. On the same day, May 17, 1910, Isaac E. Terry filed a supplemental cross-bill, the matter brought upon the record by the supplemental bill appearing to be that on the hearing before the commissioners on claims the complainant, John P. Terry, as an heir at law of the deceased, presented a set-off to cross-complainant’s claim against said estate; that the commissioners heard testimony with respect to the claim and cross-claim or set-off, disallowed a portion of the set-off, and allowed the balance of the claim of the said Isaac E. Terry at the amount already stated, and that no appeal had been taken by any one. Thereupon the administrator filed a further supplemental answer to the cross-bill, in which he sets out as new matter that the expenses of administration of said estate would amount to approximately $150, and for further relief he asks that, if the court finds the assignment of the mortgage'should not be set aside, then that John P. Terry, the complainant, be held to have taken the assignment of said mortgage, subject to the payment to the administrator of a sum sufficient to cover the payment of all claims allowed by said commissioners, together with the costs of administration, etc. The administrator makes no one defendant in his answers.

The cause came on to be heard on the 17th of May, 1910, upon the pleadings and upon proofs taken in open court as in a suit at law. Thereafter the court filed an opinion, in which is discussed, first, the contention that the administrator had no right to be heard in this proceeding, but must resort to an action at law against the complainant to recover property in his hands belonging to the estate, with the conclusion that the administrator was properly brought upon the record and entitled in this action to assert the claim and demand of the estate by virtue of sections 16 and 17 of chapter 71 of the Revised Statutes of 184:6, as amended by Act No. 326 of the Public Acts of 1905; second, the claim of Isaac E. Terry that the deceased ancestor was mentally incompetent to dispose of his property by deed, and was unduly influenced by the complainant to do so, which claim is, in effect, sustained.

A decree was entered July 19,1910, finding the amount due upon the note and mortgage; that the alleged assignment of said note and mortgage as to the creditors of the, assignor was null and void; that as to the defendant Isaac E. Terry said assignment was null and void because of the mental incompetency of said George Terry, and it was ordered that the complainant pay to the administrator the amount of the claims, allowed by the commissioners on claims in said estate, in default of which payments the assignment aforesaid be set aside and held for naught, and that the administrator recover his costs of and from the complainant. The decree then proceeds to distribute the remainder of said mortgage indebtedness as the probate court might have done; that is to say, it provides that, after paying the funeral debts and expenses of administration, there be deducted from the total amount due on the note and mortgage as a credit to Isaac E. Terry, the mortgagor, one-third of the amount thereof, that the said Isaac E. Terry recover costs of the suit against complainant, and that the defendant Isaac E. Terry and his wife, the mortgagors, pay, or cause to be paid, to complainant the balance of the amount unpaid on said note and mortgage, in default of which said payment the property mortgaged is ordered to be sold in accordance with the practice in foreclosure proceedings.

Complainant has appealed, claiming that the administrator, McCallum, is entitled to no relief, that the mortgagee, George Terry, was not proved incompetent to transfer the mortgage debt and security, it was not proved that he was fraudulently or improperly influenced to make the transfer, the defendant by his conduct is es-topped to assert the said incompetency of his father, and the decree setting aside the assignment of the said debt and mortgage is wrong. A great deal of testimony was taken, most of it relating to the mental condition and conduct of the mortgagee. After listening to able oral arguments, I have, with the aid of the briefs, reviewed the testimony. In considering the contention of defendant Isaac E. Terry, the learned trial judge said in part:

“It involves the question of the mental competency of the deceased as well as the question of undue influence. I think there is plenty of evidence to show the delivery of the papers in question. As to mental competency, there is no question but that during a long life Mr. Terry transacted the ordinary business of a man in his station, including the buying and selling of personal property and real estate and received mortgages without any question of his mental competency being raised. The son, Isaac, now one of the contestants, dealt with him in the matter of this mortgage as late as 1908 as one mentally competent to make such a loan, and the mere opinion of witnesses, who give no facts within their knowledge showing incompetency, has but little weight. The argument upon this phase of the case by complainant’s solicitor was the clearest and most exhaustive I have ever heard upon the subject, and there is no doubt but that in nearly all cases the foregoing facts are conclusive in favor of mental competency. A long line of decisions, some of recent date, are to this effect, and I am not at all sanguine but that this case will finally be made to follow this line of decisions because .of the precedent any different decision of it might create. Nevertheless I am unable to conclude this assignment ought to be sustained. I base my conclusion upon the peculiar and exceptional facts of this particular case.”

No profit can result from setting out the testimony. Whatever else may truthfully be said of him and of various idiosyncrasies he exhibited, it does not appear that George Terry lacked business acumen or mental integrity in business affairs.

The test of the mental competency of a grantor to make a deed has been stated as follows:

“ Whether, at the time he executed the deeds in question, he had sufficient mental capacity to understand the business in which he was engaged, to know and understand the extent and value of his property, and how he wanted to dispose of it, and to keep these facts in his mind long enough to plan and effect the conveyances in question without prompting and interference from others.” Hayman v. Wakeham, 133 Mich. 363, 365 (94 N. W. 1062).

Applying this test, it is my opinion that his competency is conclusively established. The motive which actuated the old gentleman in making the assignment is not very material. The property he disposed of was his own, to do with as he pleased. It is true that the practical effect of his action was a final disposition of all his property, and it is apparent that this fact and the relations he sustained to his sons are considerations affecting, if not controlling, the conclusion reached by the trial court. If he was not fraudulently or improperly influenced, and if he acted with intelligence, both of which facts are, in my opinion, established, his motive, if it can be inquired about, would appear to be to prefer one son to the others. Often matter of curiosity, sometimes of criticism, the preferences shown by parents for particular children, in particular cases, cannot be judicially set aside, unless it is clear that they are the effect of disease, fraud, or estimates of the character and conduct of the children, based upon misconceptions or notions having no foundation in fact. As was said by Mr. Justice Montgomery in a case involving testamentary dispositions of property:

“The question is, not whether the motives of testator were such as to be in all respects approved, but rather whether they were the motives of a sane man. ”

And it was said in the same opinion, and may also be said here:

“There is not the slightest ground for saying that the testator was under any delusion as to the attitude of his children toward him. The question of whether that attitude justified him in cutting them off with a nominal legacy was a question which he, within his rights as owner of the estate, had the power and legal right to determine.” Reichert v. Reichert, 144 Mich. 295, 297 (107 N. W. 1057, 1058).

See, also, Spencer v. Terry’s Estate, 133 Mich. 39 (94 N. W. 372). In Bean v. Bean, 144 Mich. 599, 626 (108 N. W. 369, 380), it was said, and the reflection is applicable in the instant case:

“ It must be borne in mind that the father, in eases like the one before us, is not a party to the post mortem, trial of the soundness of his opinions.”

From what has been said, it will be apparent that I do . not find that the so-called delusions of George Terry affected the disposition of his property. The conclusion must be the same whether the testimony of Isaac E. Terry upon this subject is regarded as competent or incompetent.

Starting with an assignment of the mortgage unaffected by fraud, undue influence, or the incompetency of the assignor, I notice the contention that as to creditors of the assignor it was invalid. I think it must be accepted as conclusive that the assignor was indebted to Isaac E. Terry. The debt was proved before commissioners on claims, and no appeal has been taken from the adjudication of the commissioners. The amount allowed was $338.30. The inventory and appraisal of the estate of George Terry, the mortgagee and assignor, filed in the probate court, reads as follows:

A true and perfect inventory of all the real estate, goods, chattels, rights and credits of said estate, to wit:
A mortgage given by I. E. Terry for $1,600.00, amount in dispute_________________________$1,600 00
1 platform wagon supposed to be worth_________ 20 00
1 silver watch supposed to be worth............. 5 00
1 certificate of deposit.........................- 50 00
1 note against Chas. Looney...........-........ ISO 00
All the above property is claimed to belong to Jno. P. Terry.
The property above mentioned was not exhibited

John P. Terry, the complainant, paid nothing for the mortgage debt or the assignment thereof to himself. He knew the extent and value of his father’s estate, and, of course, knew his age and physical condition. It is not claimed that George Terry could so dispose of his property as to defeat the claims of creditors.

It is contended that his personal representative cannot in this suit have a decree for affirmative relief. He was brought upon the record by defendant’s cross-bill, which he answered, asking for affirmative relief, but without making complainant or any other person defendant in his cross-bill, if his answer may be treated as a cross-bill. It is contended, also, that the administrator is not aided by the pleadings and prayer of the defendant Isaac E. Terry, and that he had an adequate remedy at law. Except as affecting costs, the point is not very material.

What the administrator might have done, and what he may now do, if the entire matter is not settled in this proceeding, is indicated in Act No. 326, Public Acts of 1905. By the filing of the original bill and the service of process, the court acquired jurisdiction. Defendant Isaac E. Terry, who' was the only considerable creditor of his deceased father, contended, as he had the right to do, that the mortgage, in the hands of complainant, was property out of which the debts of the estate ought to be paid. See Snyder v. Snyder, 131 Mich. 658 (92 N. W. 353); McFarlan v. McFarlan, 155 Mich. 652 (119 N. W. 1108). The administrator had not brought suit, and did not apply to intervene in this proceeding. He did answer the cross-bill of defendant, and the cause apparently went to hearing without objection based upon his intervention.

The facts are all before the court upon the present record. The conclusion from the facts is that defendants Isaac E. Terry and wife owe the mortgage debt, that the complainant holds the mortgage subject to the debts of his assignor and the expenses of administering his estate. The amount of the debts, and expenses of administration being determined and paid, complainant is entitled to all other beneficial interest in the mortgage. This court may order the mortgage turned over to the administrator for foreclpsure. It may, under all the circumstances, exercise some discretion with respect to denying to the complainant all relief. It may grant him relief upon conditions.

A decree may be entered, with the provision therein that defendants Isaac E. and Viola Terry may, within 60 days after entry of the decree, discharge the same by paying to the register in chancery of the circuit court for the county of Oakland the principal and interest of the mortgage debt, the costs of the complainant in the circuit court to be taxed, and $150, costs of this appeal, for which purpose the said register may accept as part payment the amount of the demand of said Isaac E. Terry against the estate of George Terry, deceased, upon the filing with him of a proper receipt therefor, running to the administrator of said estate. Out of the sum so paid into court, including said receipt, the register shall pay to the administrator the amount necessary to pay the claims allowed against said estate and the expenses of administering the same, not including any costs or solicitor’s fee for the administrator, for which purpose the findings contained in the decree of the court below will be accepted. The residue and remainder shall be paid to the complainant and his receipt taken therefor.

If the said decree shall not be so discharged within the time so limited therefor, complainant may, within 10 days thereafter, pay to the said register, for the use of the administrator, the amount of the debts proven against said estate and the costs and expenses of administration, not including any taxed or taxable costs or solicitor’s fee, and may thereupon proceed to sell the mortgaged premises, after the usual course and practice of foreclosure sales, for the amount due thereon, the costs and expenses of said foreclosure suit in the circuit court to be taxed, and $150, costs of this appeal.

Moobe, C. J., and Steebe, McAlvay, Bbooke, Blaib, and Stone, JJ., concurred. Bibd, J., did not sit.