text:
      In re RADFORD.
    1. Certiorari — Appeal and Error — Questions Reviewable— Disbarment Proceedings.
    The writ of certiorari to review proceedings for the disbarment of an attorney at law (8 Comp. Laws, § 10497), brings before the Supreme Court for review only questions of law, not of fact; and the court will examine the evidence only to determine whether it justifies the finding of -the court as a legitimate inference therefrom.
    2 Attorney and Client — Disbarment of Attorney — Demurrer —Petition.
    General and special demurrers to a petition for disbarment that charged respondent with refusing to account to the probate court as executor, with disobedience to specified orders of the court, with converting property of the estate to his own use, and other misconduct, were not sustainable on the theory that such petition was not sufficiently clear and specific, and was properly overruled.
    3. Same.
    Formal allegations charging specifically acts of malpractice, etc., are not essential to the sufficiency of the petition, and if fair notice is given to the respondent of the nature of the charges and a reasonable opportunity for defense afforded, the proceedings are not open to objection.
    4. Same — Practice—Taking- Testimony.
    Testimony taken at the hearing before the circuit court was not required to be read over to and signed by the respective witnesses.
    5. Same — Evidence—Unprofessional Conduct — Estates op Decedents — Executors and Administrators.
    Evidence showing that an attorney at law, appointed as executor of an estate, failed to file'an inventory and account, disobeyed numerous orders of the probate oourt without excuse, retained funds of the estate in his hands for upwards of eight years, invested money of the estate in his own name in real property which he mortgaged and lost upon foreclosure proceedings, and was guilty of deceit towards the persons interested in the estate, sufficiently supports a finding that th'e attorney was guilty of unprofessional and immoral conduct requiring his disbarment.
    6. Same — Conditions Precedent.
    Nor was it necessary that he be first oonvicted of criminal . misconduct.
    7. Same — Fiduciary Relation.
    When an attorney has forfeited his claim to the office by such misconduct, professional or nonprofessional, in or out of court, as to render him unworthy, unfit, or unsafe to be entrusted with the duties and responsibilities of his profession, the court is justified in removing him from the bar.
    Certiorari to Wayne; Rohnert, Mandell, and Murfin, JJ.
    Submitted January 31,1912.
    (Docket No. 23.)
    Decided February 10, 1912.
    Petition by Charles T. Wilkins and Charles W. Casgrain, amici curiae, for the disbarment of George W. Radford. A judgment of disbarment is reviewed by respondent on writ of certiorari.
    Affirmed.

      Thomas A. E. Weadock, for appellant.

      C. A. Kent and William G. Fitzpatrick, amici cur ice.

   Stone, J.

This is a proceeding for the disbarment of George W. Radford, who for many years has been a member of the bar in the courts of this State. The proceeding was taken at the instance and on the recommendation of the Detroit Bar Association, and has been conducted under the direction of the circuit court for the county of Wayne. That court appointed two members of the bar, as friends of the court, to make, prefer, present, and prosecute charges against Mr. Radford, hereinafter called the respondent.

The petition of the friends of the court is very lengthy, and, together with the exhibits attached thereto, covers more than 100 pages of the printed record. Its great length renders it inexpedient that it be set forth in full here. It is very explicit and full in its charges and specifications, and was duly verified upon information and belief. We have set forth the specifications which we deem material, as follows:

“(A) He wilfully and knowingly and unlawfully failed and neglected to file in the probate court for the county of Wayne, within the time required by law and by the conditions of his bond as such executor, and by an order duly and lawfully made by said probate court, any account, or inventory, so called, of the estate, real or personal, belonging to the estate of the said John E. Oxnard, deceased, which, of great value, had within^fchat time come into his (said George W. Radford’s) possession as such executor; and he wilfully and knowingly and unlawfully so continued in his said failure and neglect for eight years after he had been appointed and qualified as such executor, as is hereinabove, in paragraph numbered third hereof, also set forth.
(e (B) He wilfully and knowingly and unlawfully failed and neglected to render to said probate court, within the time required by law and by the conditions of his bond as such executor, and by an order duly and lawfully made by said probate court, any account of his administration of the estate of the said John E. Oxnard, deceased, although during that time he had, as such executor, come into the possession of large amounts of property, both real and personal, belonging to said estate, and had made large disbursements thereof, and he wilfully, knowingly, and unlawfully so continued in his said failure and neglect for eight years after he had been appointed and had qualified as such executor, as is hereinabove, in paragraph numbered third hereof, also set forth.
“(0) He wilfully and knowingly and unlawfully and contemptuously, and without any good or lawful excuse, violated and disobeyed the lawful orders of the probate court of the county of Wayne, duly made and entered by and in said probate court the 10th day of March, A. D. 1908, and the 26th day of May, A. D. 1908, hereinabove referred to, and of which orders he had due notice, ordering and requiring him, within the times in such orders stated, to file in said court an account, or inventory, of said estate, and to render to said probate court his account as such executor, and an account of his receipts and disbursements as such executor, although, when such orders were made, he had, as such executor, come into possession and was then in possession of large amounts of property, both real and personal, belonging to said estate, and had made large disbursements therefrom; and, although a warrant was, on the 22d day of July, A. I). 1908, issued by and out of said probate court for his arrest and imprisonment for failure to obey, perform, and comply with the said order of the 26th day of May, A. D. 1908, he knowingly and wilfully and unlawfully and contemptuously, and without any good or lawful excuse, filed no inventory or account of such estate, and rendered no account of his receipts or disbursements as such executor until the 2d day of September, A. D. 1908, and after he had been removed from his office as such executor, as is hereinabove, in paragraph numbered third hereof, also set forth, and he, by his said actions, was and is guilty of wilful contempt of said probate court.”
“(E) He has wilfully and knowingly and unlawfully and contemptuously disobeyed and violated a lawful order of the probate court of the county of Wayne, duly and legally made and entered by and in said probate court the 15th day of May, A. D. 1909, and hereinabove referred to, and another lawful order of said probate court, duly made and entered by and in said probate court the 14th day of July, A. D. 1909, and also hereinabove referred to, and from neither of which orders has any appeal been taken, or claimed, or noticed, and has wilfully and knowingly and unlawfully failed, neglected, and refused, and so continues to so neglect and refuse, to pay to Elizabeth R. Oxnard, and to the Security Trust Company, of Detroit, Mich., and to the county treasurer of Wayne county, the persons in such orders named, or to any of such persons, or to any one on behalf of such persons, or on behalf of any of them, the sums of money, or any part of the sums of money, by said probate court, and in and by such orders, then found due to such persons, respectively, from said George W. Radford as such executor, as aforesaid, and which said George W. Radford was by said probate court, and in and by such orders, then and there ordered to pay to such persons; and he (the said George W. Rad-ford) has wilfully and knowingly and unlawfully neglected and refused, and so continues to so neglect and refuse, to turn over to said Emmet A. Perry, administrator de bonis non with the will annexed of said estate, and in such order of the 15th day of May, A. D. 1909, mentioned, the uncollected assets stated in said George W. Radford’s said account, in Exhibit C thereof, or any part thereof, which uncollected assets the said George W. Radford was by said probate court, and in and by said last-mentioned order, ordered to so turn over to said Emmet A. Perry, as is hereinabove, in paragraph numbered fourth hereof, also set forth.”
“(J) He wilfully and knowingly and unlawfully, in and by his testimony given in said probate court on the examination of his said account as such executor as aforesaid, sought to deceive and mislead said probate court, and to deceive and mislead and cheat and defraud the persons interested in said estate, and in the insurance moneys, so called, hereinabove mentioned, by knowingly and intentionally charging to the said estate and claiming credits to himself, as such executor and trustee aforesaid, for certain practically worthless investments which he claimed to have made from and out of the funds of said estate and from and out of said insurance moneys, and for and on behalf of said estate and for and on behalf of the persons interested in said insurance moneys, so called, which said investments, as- he (the said George W. Rad-ford) then and there well knew, he did not lawfully make from or out of said funds or said insurance moneys, and did not make for or on behalf of said estate., or for or on behalf of the persons interested in said insurance moneys, and for which investments he was entitled to no credit as such executor or trustee, all as he (the said George W. Radford) then and there, when he gave his testimony aforesaid, well knew, as is hereinabove, in paragraph numbered eleventh hereof, also set forth.
“ (K) If he, as such executor and trustee of and under the said last will and testament of John E. Oxnard, deceased, made from and out of the funds of said estate, or from and out of the said insurance moneys, so called, and for and on behalf of said estate, or for and on behalf of the persons interested in said insurance moneys, so called, any of the investments hereinabove, in paragraph numbered eleventh hereof, mentioned, and which he claimed in his said testimony given in said probate court, on the examination of said account as such executor, that he did so make, as is hereinabove, in paragraph numbered eleventh hereof, set forth, then he (the said George W. Radford) wilfully and knowingly and fraudulently and unlawfully sought to deceive and mislead said probate court, and to deceive and mislead and cheat and defraud the said estate of John E. Oxnard, deceased, and the persons interested therein, and the persons interested in said insurance moneys, so called, when he failed and neglected to state in his said account as such executor the investments so made, and when he failed and neglected to credit said estate in such account, or otherwise, with said investments and with the moneys that he received on account thereof, and when he failed and neglected to credit the persons interested in said insurance moneys with such investments and with the moneys received on account thereof, as hereinabove, in paragraph numbered eleventh hereof, set forth.
“(L) He has wilfully and knowingly and unlawfully and fraudulently, and with intent to defraud the said estate and to cheat and defraud the persons interested in the funds and assets thereof, misappropriated and converted and applied to his own use a large sum of money, to wit, the sum of twenty-one thousand six hundred and eleven dollars and thirty-four cents ($21,611.34), which was received by him, and which came into the hands and possession and control of him (the said George W. Rad-ford), as the executor of the last will and testament of the said John E. Oxnard, deceased, and which was a part of the funds and assets of said estate, as is also hereinabove set forth.
“ (M) He, as such executor, knowingly received large sums of money belonging to the funds and assets of said estate for which he wilfully and knowingly and fraudulently neglected and refused to render any account, as by the said probate court he was ordered and required to do.
“(N) He knowingly and wilfully and fraudulently omitted from his said inventory of said estate, so filed in said probate court, as aforesaid, property which came into his possession as such executor.
“(O) He knowingly and wilfully and fraudulently charged and stated in his account as such executor as disbursements large sums of money, which, as he well knew, he did not lawfully disburse as such executor.
“ (P) He was by the Honorable Edgar O. Durfee, judge of probate of the county of Wayne, lawfully appointed executor of and under the last will and testament of John E. Oxnard, deceased, as aforesaid, and as such executor collected goods, chattels, money, and effects of the said deceased, of great value, as above set forth, and still has such goods, chattels, money, and effects in his hands, possession, and control, and he wilfully and knowingly appropriated the same to his own use, and he has been, to wit, by an order entered by and in said probate court for the county of Wayne on the 15th day of May, A. D. 1909, and hereinbefore referred to, and a copy of which is hereto attached and marked ‘Exhibit I,’ ordered by the said judge of probate forthwith to deliver to his successor in trust and to the persons lawfully entitled thereto, and in such order mentioned, all the goods, chattels, money, and effects of the deceased in his (the said George W. Radford’s) hands, and he (the said George W. Radford) has wilfully omitted, neglected, and refused for 60 days to obey said order, and, although 60 days have elapsed since said order was made, he still neglects and refuses to deliver said goods, chattels, money, and effects of the said deceased as he was and is in and by said order commanded, and he (the said George W. Radford) has thereby, and by his said neglect and refusal, committed the crime of embezzlement.”

On the filing of this petition, an order to show cause, directed to the respondent, was duly signed and entered. Thereafter, on the 9th day of September, 1909 copies of the petition, charges,, and specifications, and the order to show cause entered thereon, were duly served upon the respondent personally; and on September 14, 1909, the respondent, through his attorney, filed herein and served upon the friends of the court general and special demurrers to the petition. We shall have occasion to refer to these demurrers; but, as the same points there involved are discussed by respondent’s counsel upon the final hearing, we do not deem it necessary to insert the demurrers here at length.

On September 35, 1909, the eourt overruled the demurrers, and ordered the respondent to file and serve his answer within 10 days. Thereafter respondent applied to this eourt for a writ of certiorari to review the order overruling his demurrers to the petition, which application was denied by this court. In re Radford, 159 Mich. 91 (133 N. W. 546). Afterwards, andón December33,1909, the respondent’s. answer was filed and served. This answer denies the material allegations of deceit, fraud, and malpractice charged in the petition.

On March 14, 1910, the taking of testimony on the issue joined on the petition and answer was begun before one of the circuit judges. At the conclusion of the testimony offered by the petitioners, the respondent moved to dismiss the proceedings for numerous reasons, among others, that the evidence did not support the allegations of the petition, and the respondent at first declined to offer any testimony. Later the respondent offered testimony which was received, the taking of which occupied many days, beginning June 16, and ending June 37,1910. The case was argued and submitted before three of the circuit judges, and time was given to file briefs. On July 31,1910, after filing an opinion, certain findings were entered in the journal of the court, and a formal judgment of disbarment was entered. These findings and judgment were as follows:

“State oe Michigan,
“ In the Circuit Court for the County of Wayne.
“At a session of said court continued and held at the courthouse in the city of Detroit on the 21st day of July, A. D. 1910.
“ Present: Hon. Morse Rohnert, Hon. Henry A. Man-dell, and Hon. James O. Murfin, Circuit Judges.
“ In the Matter of George W. Radford, an Attorney at Law.
“ (Misc. No. 211.)
“This matter coming on to be heard in open court on the testimony in support of the petition herein offered by the friends of the court and the testimony offered by the respondent and the testimony of the friends of the court in rebuttal, and the matter having been duly argued by counsel for the respective parties, and the court being fully advised in the premises and after due consideration having been given to the matter, and it appearing to the court from the evidence taken herein that George W. Radford, an attorney at law, has been guilty of the charges of unprofessional conduct made against him, and it appearing from the evidence, the court now here finds that the said Radford wilfully, knowingly, and unlawfully failed and neglected to file in the probate court for the county of Wayne within the time required by law and the conditions of his bond as executor of the will of John E. Oxnard, deceased, and by orders duly and lawfully made by the said probate court, any account or inventory of the estate, real or personal, belonging to the said Oxnard, which had come into his (said George W. Radford’s) possession as executor, and that he (said Radford) wilfully, knowingly, and unlawfully continued in such failure and neglect for eight years after he had been appointed and qualified as such executor; that said George W. Radford wilfully, knowingly, and unlawfully failed and- neglected ro render to said probate court, within the time required by law and by the condition of his bond as such executor, and by the lawful orders of said probate court, any account of his administration of the estate of John E. Oxnard, deceased, and that during the time of such failure and neglect there had come into the possession of said George W. Radford large amounts of property, both real and personal, belonging to said estate; that said Radford had made large disbursements from the funds of said estate, and that said George W. Radford wilfully, knowingly, perversely, and unlawfully continued in his said failure and neglect to render accounts of his administration for the period of eight years after he had been appointed and had qualified as such executor; that he has wilfully, knowingly, and contemptuously, without any good or lawful excuse, violated and disobeyed the lawful orders of the probate court for the county of Wayne, requiring him (said George W. Radford) to file in the said probate court accounts of his administration of and an inventory of the assets and property of the estate of John E. Oxnard, deceased, and the said George W. Radford has knowingly, wilfully, and perversely disobeyed and violated the said lawful order of the probate court for the county of Wayne, made and entered in said court on the 17th day of November, 1908, requiring that he (said Radford) file his bond as trustee under the last will and testament of the said John E. Oxnard, deceased, and that at the time of such failure to file such bond he (said Radford) \yas in possession of large amounts of property which he was holding as trustee under said will; that the said Radford knew and had personal knowledge of the requirements of the provisions of said order requiring him to file a bond as such trustee, and that he wilfully, knowingly, and perversely continued and still continues to retain possession of said trust property under said will; that said George W. Radford wilfully, knowingly, and unlawfully disobeyed the lawful order of the probate court for the county of Wayne, duly and legally entered by and in said probate court on the 15th day of May, 1909, and another lawful order of said probate court on the 14th day of July, 1909, requiring the said Radford to turn over forthwith and pay over to one Elizabeth R. Oxnard the sum of $5,537.16, being the balance due from said George W. Radford on the said 15th day of May, 1909, to said Elizabeth R. Oxnard, as executor of the will of John E. Oxnard, deceased, and to forthwith turn over to the Security Trust Company, of Detroit, Mich., successor or trustee of the estate of John E. Oxnard, deceased, the sum of $15,904.19, with interest thereon from said 15th day of May, 1909, as required by said order of the probate court of July 14, 1909, and that said failure to pay said sums of money, respectively, still continues, and that said George W. Radford has not to the date hereof paid the same to the said several parties, nor has he paid any part thereof; that said orders of the probate court were not appealed from, and that no good and sufficient reason has been given by said Radford why said sums of money have not heretofore been paid to their rightful and lawful owners; that the said George W. Radford has wilfully, fraudulently, and unlawfully, and with intent to defraud the estate of the said John E. Oxnard, deceased, and to cheat and defraud the persons interested in the funds and assets thereof, misappropriated and converted and applied to his own use, to wit, said George W. Radford’s use, large sums of money, to wit, $20,000 and upwards, which was received by him and which came into his possession and control as the executor of the last will and testament of the said estate of John E. Oxnard, deceased; that he (the said George W. Radford) did wilfully, knowingly, and contemptuously, in and by his sworn testimony given in the said probate court for the county of Wayne on the occasion of the examination of his said account as executor of the will of said John E. Oxnard, deceased, seek to deceive and mislead and cheat and defraud the persons interested in said estate and in certain moneys then and theretofore in the hands of said Radford, known and called ‘insurance moneys,’ which were and are the proceeds of certain insurance policies on the life of said John E. Oxnard, deceased, by knowingly, intentionally, falsely, and fraudulently charging to the estate of said John E. Oxnard, deceased, and to the insurance moneys, so called, and claiming credit to himself as such executor and as trustee, certain practically worthless investments, to wit, investments in real estate in the city of Detroit, known as Yil Fort Street West, and certain other real estate situate on the. northwest corner of Clairmont and Woodward avenues in the said city of Detroit, and divers and sundry other investments, all of which said alleged investments were in the name of said George W. Radford, individually, and which said alleged investments he claimed to have made from and out of the funds of the estate of John E. Oxnard, deceased, and from and out of said insurance moneys, and for and on behalf of said estate, and for and on behalf of the persons interested in said insurance moneys and all of which said investments, as he (the said George W. Radford) then and there well knew, he did not make and from and out of said funds or said insurance moneys, and did not make for and on behalf of said estate, or for and on behalf of the persons interested in said insurance' moneys, and for which investments he was entitled to no credit as executor and trustee, as he (the said George W. Radford) then and there, when he gave his testimony, as aforesaid, well knew; the said George W. Radford, as an attorney at law, and as an individual, in connection with his dealings with the estates of Frances E. and Alfred Chesebrough and with one George L. Chesebrough, the administrator of said estate, has been guilty of unlawful, immoral, and unprofessional conduct, in that, after having caused the legal title of the real estate in the city of Detroit, known as No. 171 Fort Street West, to be taken in his name, for the benefit and advantage and as trustee of the said George L. Chesebrough and others, such title being taken with the knowledge and consent of the said George L. Chesebrough, he (said George W. Radford) did thereafter assert and claim absolute ownership in himself of said real estate, and did deny, dispute, and repudiate the interest and estate of George L. Chesebrough in and to said real estate and the right of the said George L. Chesebrough to an account, and in that he (the said George W. Radford), although in possession of certain moneys belonging to the estate of said Frances E. Chesebrough and. said Alfred Chesebrough, which he (said Radford) claimed to have disbursed from time to time, and although he (said Rad-ford) came into possession and received large sums of money as the proceeds of a certain mortgage executed by said Radford in his name on said real estate last above mentioned, and of large sums of money as the rents of said real estate No. 171 Fort Street West, Detroit, and certain other large sums of money as the proceeds of the sale of two certain lots or parcels of real estate at one time belonging to the estate of Frances E. Chesebrough, and located on Kirby avenue in the said city of Detroit, he (said George W. Radford) wilfully, perversely, unlawfully, fraudulently, and deceitfully omitted, neglected, and refused to render to the said George L. Chesebrough an accounting or an account of said trust, and the said George W. Radford was repeatedly requested to furnish said accounting, or account by the said George L. Chesebrough and his agents and representatives; that in other respects and particulars, as well as for the reasons stated in the findings aforesaid, said George W. Radford has been and is guilty of immoralities which utterly unfit him for the faithful discharge of the duties of an attorney to his client and of the court in which he may practice, and the court doth hereby find that the character of the said George W. Radford is such as shall no longer be approved by this court, or any other court, and is such that we or the public cannot safely rely upon his (said George W. Radford’s) honor and integrity.
“ Due consideration having been given to the aforesaid findings, it is ordered, and the court doth hereby order, that the license of said George W. Radford to practice as an attorney and counselor at law and solicitor in chancery in all the courts of this State be, and the same is hereby, revoked and canceled, and that the name of said George W. Radford be, and the same is hereby, stricken from the roll of attorneys of this court, and that the said George W. Radford be, and is hereby, removed from his office and offices as an attorney and counselor at law and solicitor in chancery, and that the said George W. Radford be and he is hereby, forever disbarred from practicing as an attorney and counselor at law and solicitor in chancery in any of the courts of this State.”

The respondent then applied to this court for a writ of certiorari to review the proceedings and judgment, which writ was granted.

In his petition for such writ, respondent alleges errors as follows:

“(a) In overruling your petitioner’s said demurrer, and separately erred in„ overruling each and every ground thereof.
“(6) In not requiring each witness to examine his or her testimony, and to correct and sign the same, and in considering such testimony as evidence in this cause, without the same being done.
“(c) In refusing or failing to rule on your petitioner’s motion, made at the close of the proofs of the friends of the court, to dismiss said proceedings, and in not granting said motion, and in not dismissing said proceedings.
“(d) In its conclusions and findings of fact, and as to each of the same, as set forth in its opinion (Exhibit 0), and in its order (Exhibit D), and. that the same are contrary to the evidence in said cause.
“(e) In finding that the acts mentioned in said order (Exhibit D) were done by your petitioner ‘wilfully, unlawfully, knowingly, perversely, contemptuously, falsely, fraudulently and intentionally,’ as charged in the petition for disbarment in this cause; there being no testimony to support the same; and there being affirmative testimony showing that said acts were not so done.
“(f) In holding that the findings supnort the order of disbarment.
“(g) In entering an order of disba'rment upon said findings. v
“(h) In disbarring your petitioner.
“(i) In refusing to stay said order, pending a review by this honorable court.”

If is well that we keep in mind the fact that this case is before us upon certiorari, under the provisions of section 10497, 3 Comp. Laws; and that it has been often held that the office of a certiorari is not to review questions of fact, but questions of law. And that in examining into the evidence the appellate court does so, not to determine whether the probabilities preponderate one way or the other, but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved, whether that inference would, or would not, have been drawn by the appellate tribunal. Jackson v. People, 9 Mich. 111 (77 Am. Dec. 491).

It is claimed that the court erred in overruling the demurrer, and in overruling each and every ground thereof. After an examination of the demurrer, both general and special, we are of opinion that it was properly overruled. The charges and specifications were explicit and clear, and the practice followed has been approved by this court. In re Shepard, 109 Mich. 631 (67 N. W. 971).

Randall v. Brigham, 7 Wall. (U. S.) 523, was a case which reached the Supreme Court of the United States on error to the United States circuit court for the district of Massachusetts. The action was brought by plaintiff, who was an attorney and counselor at law in Massachusetts, against the defendant, who was one of the justices of the superior court of that State, for an alleged wrongful removal by him of the plaintiff from the bar. Objection was raised to the sufficiency of the charges brought against the plaintiff. The statute of that State gave the superior court, it being a court of general jurisdiction, power to remove any attorney “for deceit, malpractice or other gross misconduct.” It was there held that formal allegations, making specific charges of malpractice or unprofessional conduct, are not essential as a foundation for proceedings against attorneys.

“All that is requisite to their validity is that, when not taken for matters occurring in open court, in the presence of the judges, notice should be given to the attorney of the charges made, and opportunity afforded him for explanation and defense. The manner in which the proceeding shall be conducted, so that it be without oppression or unfairness, is a matter of judicial regulation.”

A reference to our statute (sections 1128 to 1130) will show that its provisions were complied with in this proceeding. If the petition was true, it set forth sufficient grounds for the disbarment of respondent.

It is urged that the court erred in not requiring each witness to examine his or her testimony, and to correct and sign the same, and in considering such testimony as evidence, without the same being done. We think that there is no merit in this point. The testimony was taken in open court before one of the circuit judges. It would have been perfectly regular and competent for this judge to have alone heard and disposed of the case. He saw fit to call in two other judges to hear and decide the case, all acting together. We know of no rule requiring testimony so taken to be examined and signed by the witness.

The remaining allegations of error go to the merits of the whole case, and may well be examined together. They were well expressed by respondent’s counsel in the oral argument, when he said that two questions were presented: First. Was there a fair trial ? Second. Was there evidence to support the findings ?

After reading this record with great care, we are constrained to hold that both of these questions should be answered in the affirmative. By the uncontradicted evidence in the case, the manner in which the respondent handled the Oxnard estate, not only cannot be justified, but shows such a disregard of his legal obligations and duties as executor under the will of John E. Oxnard, deceased, to the legatees and to the court as calls for censure and condemnation. It is true that he was given by the will large powers of sale and investment, but the testator added, “in such manner as he may deem best to preserve my estate for the purposes herein named.”

Mr. Oxnard died in November, 1899. The will was admitted to probate January 4, 1900, and the respondent qualified as executor. The total amount of the estate, including the life insurance, which came into the respondent’s hands, was claimed to be over $30,000. Payments were made by respondent, as executor, to the widow and daughters, and to the surviving daughter from early in 1900 to July, 1908. During this time, no inventory of the estate and no executor’s account had-ever been filed in the probate court, although the legatees had on numerous occasions requested the respondent to close the estate.

On March 10, 1908, the probate court ordered the respondent to file an inventory and his final account within 30 days after service of a copy of the order. On the 26th of May, 1908, a further order was entered that the inventory and account be filed on or before June 26, 1908. These orders were disobeyed. On August 6,1908, a petition was filed in said court by Florence O. Beach, the surviving daughter, reciting the issue and service of the orders of March 10th and May 26th, and averring the disobedience of respondent, and on July 22d an order for his arrest and imprisonment was made. The petition asked that respondent be removed as executor and trustee, and that a suitable person be appointed in his place. The warrant was issued July 22d. On August 25, 1908, the sheriff returned that he could not find respondent, and on the same day an order was made by the probate court, removing respondent from his executorship, and on September 13th Emmet A. Perry was appointed in his place. September 2d respondent filed his inventory and account. Objections were duly filed by the widow and daughter to the account. Later respondent filed an amendment of the account. On November 17, 1908, respondent was ordered to give a bond in the sum of $20,000, as trustee, and proof of the service of the order was filed November 23d. He did not comply with the order. The hearing on the account was adjourned from time to time, but on May 15, 1909, the probate court made an order and adjudication that:

“ The cash balance due from said executor at this date, including interest, is the sum of $21,611.34, of which the sum of $5,537.16 is due Elizabeth R. Oxnard, and said executor is hereby ordered to pay over said sum to her forthwith. The court finds that the cash balance due the fund provided in said will for the benefit of said Florence Oxnard Beach is the sum of $15,904.19, to be hereafter assigned to the trustee to be appointed by this court.”

The Security Trust Company of Detroit was appointed Buch trustee, and on July 14, 1909, the probate court ordered that:

“ The cash balance due the fund provided in the will of said John E. Oxnard for the benefit of Florence Oxnard Beach, being the sum of $15,904.19, with interest thereon from said May 15, 1909, be and the same is hereby assigned to said Security Trust Company, trustee. And it is further ordered that George W. Radford forthwith turn over the said cash balance of $15,904.19 and the interest thereon to said trustee.”

From this record, it appears that respondent has not paid over any of said sums. He has not appealed from said orders, or either of them. He claimed in the court below that the amounts decreed against him were too large; but in his answer he admitted an indebtedness of over $5,000. He made investments in his own name, in both personal and real estate, showing no connection with the tru'st. He kept the money belonging to the trust in his own bank account, and drew therefrom for his own uses, as well as for payments in the trust matters, without his checks or books showing any difference between the two. He kept no accounts, as executor, showing his investments. As to two pieces of real property in which he had invested the money of the estate, taking the title in his own name as absolute owner (both of which were mortgaged by him, and both of which were lost upon foreclosure of mortgage), he did not upon the trial produce or prepare any statement of receipts of rents and disbursements, although often asked so to do. His testimony upon those subjects was evasive, inconclusive, and very unsatisfactory. One cannot impartially read this record without reaching the conclusion that the respondent acted in bad faith in dealing with this estate; that he was guilty of deceit in his fiduciary relation to the legatees; and that the judgment of the circuit court was fully justified. The evidence shows, not a mere mistake in judgment, but a studied purpose and design to exploit the assets of this estate in his own interest, and not to preserve the estate for the purposes named ‘in the will. The respondent is presumed to know the law, and his duty to those with whom he stands in a trust relation. We can reach but one conclusion, and that is that he acted in bad faith.

It is significant that in each of the cases in which the respondent is charged with improper and unprofessional conduct in the petition, he managed to get the legal title to the property of his cestuis que trustent, or clients, into his own name, as the absolute owner thereof. This opinion might well end here. But we shall notice some of the points urged by counsel for respondent.

It is claimed that the court has no right to disbar an attorney until, by a judicial proceeding, determined in a judicial way, the court shall find that by some criminal conduct on his part, of which he has been convicted, or for some professional misconduct, he has forfeited his right to practice law. The early case, In the Matter of Mills, 1 Mich. 392, fully meets and answers this point. That case has been cited and followed many times.

The following authorities are in point here:

Sanborn v. Kimball, 64 Me. 140. This was a proceeding, in behalf of the bar of Penobscot county, for a removal of Kimball from the office of attorney and counsel- or at law. The court holds that an attorney at law is an officer of the court, and may be removed from office for misconduct, ascertained and determined by the court, after an opportunity to be heard has been afforded. The statute of Maine makes “a good moral character a condition precedent to admission to the bar.” It was held that when an attorney at law had forfeited his claim to such character by such misconduct, professional or nonprofessional, in or out of court, as rendered him unworthy to society in general, and unfit and unsafe to be intrusted with the powers, duties, and responsibilities of the legal profession, the court may deprive him of the power and opportunity to do further injury, under the color of his profession, by removing him from the bar. The Case of Mills, supra, is cited with approval in that case.

In Re Thatcher, 80 Ohio St. 492 (89 N. E. 39), it was held that, in order to justify the court in disbarring an attorney, it was not necessary that his offense should constitute a contempt or a crime, or that he should be convicted of a crime or contempt before disbarment; that, while the power of disbarment should be exercised with great caution, yet, where the respondent had been found guilty of unprofessional conduct involving moral turpitude, and of misconduct affecting his character and standing as an attorney, and especially where he had manifested no signs of regret, and retracted nothing, the courts will not hesitate, through sympathy for the individual, to protect themselves from scandal and contempt, and the public from prejudice, by striking such person from the roll of attorneys.

Ex parte Wall, 107 U. S 265 (2 Sup. Ct. 569). In this case it was held that an attorney’s name will be struck off the roll, among other things, if he is guilty of gross misconduct in his profession, and of acts, although not done in his capacity as an attorney, gravely affecting his character as an attorney; but if the acts charged are indictable, and are fairly denied, the court will not proceed against him until he has been convicted by a jury. And the court said:

“The cases are quite numerous in which attorneys, for malpractice or misconduct in their official character, and for other acts which showed them to be unfit persons to practice as attorneys, have been struck from the roll upon a summary proceeding, without any previous conviction of a criminal charge”— citing many cases, including In the Matter of Mills, 1 Mich. 392, and In the Matter of George W. Wool, 36 Mich. 299.

This case reviews many of the cases already cited at great length.

State v. McClaugherty, 33 W. Va. 250 (10 S. E. 407), holds that when an attorney commits an act, whether in the discharge of his duties as an attorney or not, showing such want of professional or personal honesty as to render him unworthy of public confidence, it is not only the province, but the duty, of the court, upon proper presentation of the case, to strike his name from the roll of attorneys.

In re Spencer, 137 App. Div. (N Y.) 330 (122 N. Y. Supp. 190). It is worthy of note that the statute in New York is similar to ours, in that it provides “an attorney and counselor who is guilty of any deceit, malpractice, crime or misdemeanor, may be suspended or removed from office.” The case holds that the question for determination, both in appointing an attorney to, and removing him from, his office, is whether he is qualified to hold it. It is also held that his removal is not penal in character See Bar Association of City of Boston v. Greenhood, 168 Mass. 169 (46 N. E. 568). In this case the authorities are generally reviewed, and it is held that the primary purpose of the proceeding is not punishment, but the preservation of the virtue of the courts and protection to the public from attorneys who disregard their oaths of offices and attorneys may be removed for causes not included in the statute, such as ceasing to be of good moral character, within the meaning of these words as used in the statute prescribing requirements for admission to the bar. •

In Re Wilson, 79 Kan. 674 (100 Pac. 635, 21 L. R. A. [N. S.] 517), it was held that whenever one who was in fact a lawyer accepted employment to act for some one else in a business transaction, in the course of which he received money belonging to his employer, his wrongful detention of it is a sufficient ground for his disbarment, although he may not have been called upon to give legal advice or to take part in litigation; that “such conduct would justify excluding him from the practice of the law, as it would certainly be a just cause of refusing an application for admission to the bar” — citing In re Smith, 73 Kan. 743 (85 Pac. 584). In this case the amount of money received and misappropriated was inconsiderable.

People v. Salomon, 184 Ill. 490 (56 N. E. 815). This was a proceeding to disbar respondent, Moses Salomon, for misconduct in his office as an attorney. In this case an attorney, acting for an administrator, who had collected money due the estate after the administrator had fled, and invested it in his own business, defying the orders of the probate court to turn the money over to an administrator appointed by it, was held guilty of such misconduct in office as authorized his disbarment. The court said:

“ Such conduct on the part of an attorney at law must be regarded, within the statute, ‘as malconduct in office,’ and must be condemned as unworthy of the honorable profession to which he belongs. Sharswood, in his Essay on Professional Ethics, says:
‘ ‘' There is no class of men among whom moral delinquency is more marked and disgraceful than among lawyers. Among merchants, so many honest men become involved through misfortune that the rogue may hope to take shelter in the crowd and be screened from observation. Not so the lawyer. If he continues to seek business, he must find his employment in lower and still lower grades, and will soon come to verify and illustrate the remark of Lord Bolingbroke that, “the profession of the law, in its nature the noblest and most beneficial to mankind, is in its abuse and abasement the most sordid and pernicious.”,’ ”

People v. Chamberlain, 242 Ill. 260 (89 N. E. 994). This case holds that the power of the supreme court of Illinois to disbar an attorney is an inherent one, which exists independently of any statute on the subject; and, if satisfied that the attorney has acted fraudulently and in bad faith, the court may disbar him, regardless of whether or not the case comes technically within the provisions of the statute.

It is also held that the fact that a client had settled with his attorney for money collected did not preclude subsequent inquiry into the moral and professional character of the attorney’s acts; and if it was shown that he had acted in bad faith toward such client, and had obtained, by misrepresentation and concealment of facts, money to which the client was rightfully entitled, the court might disbar the attorney, notwithstanding such settlement.

In Randall v. Brigham, supra, the court said:

“ The authority of the court over its attorneys and counselors is of the highest importance. They constitute a profession essential to society. Their aid is required, not merely to represent suitors before the courts, but in the more difficult transactions of private life. The highest interests are placed in their hands, and confided to their management. The confidence which they receive, and the responsibilities which they are obliged to assume, demand, not only ability of the highest order, but the strictest integrity. The authority which the courts hold over them, and the qualifications required for their admission, are intended to secure those qualities.”

Many more cases might be cited, going much further than we find it necessary to go, to sustain the judgment of the court below.

We find no error in the proceedings, and the judgment of the circuit court is affirmed.

Moore, C. J., and Steere, Brooke, and Blair, JJ., • concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    FOLEY v. GRAND RAPIDS & INDIANA RAILWAY CO.
    1. Attorney and Client — Contract — Compromise Without Consent oe Attorney — Compensation.
    Parol evidence was not admissible, in a personal injury action which the client compromised without the consent of his attorneys, and which was thereafter prosecuted by the attorneys for their fees, to show that a written instrument exe cuted by plaintiff and defendant purporting to be a settlement of the entire cause of action, was actually a settlement of an undivided half of plaintiff’s claim.
    8. Same — Lien—Contract.
    Under a contract giving the attorneys a lien on the moneys obtained by any settlement without depriving the client of the right to enter into a compromise against their consent, as soon as the amount of settlement was agreed upon, the attorneys became entitled to the percentage thereof fixed by the instrument.
    3. Same — Tender—Payment into Court.
    Judgment was properly directed for defendant who had tendered and paid into court the correct sum due plaintiff’s attorneys.
    Error to Cheboygan; Shepherd, J.
    Submitted December 15, 1911.
    ( Docket No. 109.)
    Decided February 10, 1912.
    Case by James Foley against the Grand Rapids & Indiana Railway Company for personal injuries, — prosecuted for the benefit of plaintiff’s attorneys after settlement, to satisfy their lien. Judgment for plaintiffs for less than the amount claimed, upon a verdict directed by the court. Plaintiffs bring error.
    Affirmed.

      Benjamin & Quay (De Vere Mall, of counsel), for appellant.

      James M. Campbell, for appellee.
   Blair, J.

The writ of error in this case is prosecuted to review the judgment of the circuit court, entered upon a directed verdict upon the trial of the issue, framed in accordance with the opinion of this court in Grand Rapids, etc., R. Co. v. Cheboygan Circuit Judge, 161 Mich. 181 (126 N. W. 56, 137 Am. St. Rep. 495).

There are two questions requiring consideration, viz.: (1) Did the court err in holding that parol evidence was not admissible to show that the agreements, printed at' pages 183, 184 of 161 Mich. (126 N. W. 57, 137 Am. St. Rep. 495), were in truth and in fact intended to be, and actually were, not a settlement of Foley’s entire cause of action, but only of his undivided one-half interest therein ? (2) That plaintiffs, under their lien, were entitled to the same, amount which Foley received.

The offered testimony was not limited to showing the consideration of the contract merely, but sought to change the scope and effect of the contract, and to cast upon the defendant an obligation which the contract did not require of it. The court properly rejected such testimony. Kibler v. Caplis, 140 Mich. 28 (103 N. W. 531, 112 Am. St. Rep. 388); Tradesman Co. v. Manufacturing Co., 147 Mich. 702 (111 N. W. 343, 112 N. W. 708); Stockbridge Elevator Co. v. Booth, 165 Mich. 212 (130 N. W. 619); International Text-Book Co. v. Marvin, 166 Mich. 660 (132 N. W. 437); Sheffler v. Sherman, 167 Mich. 42. (132 N. W. 466); 17 Cyc. p. 661, subd. “i.”

Under his agreement with his attorneys (see 161 Mich., at page 185 (126 N. W., at page 57, 137 Am. St. Rep. 495), Foley was entitled to make a settlement without the consent, and even against the opposition, of his attorneys. And, in the event of such settlement, “second parties shall have a lien on any * * * money that may be obtained from said railroad company.” - By the very terms of the agreement, therefore, the moment the amount of the settlement was agreed upon, the attorneys’ lien attached thereto at the percentage fixed by their agreement with their client.

The defendant having paid into court one-half the amount of the settlement and costs then a proper charge, the court did not err in directing a verdict in its favor.

The judgment is affirmed.

Steere, Brooke, Stone, and Ostrander, JJ., concurred.


author: Brooke, J.

text:
    WEIMER v. KALAMAZOO CIRCUIT JUDGE.
    Intoxicating Liquors — Mandamus — Criminal Law — Carrying on Business without a License.
    Evidence that the respondent in a criminal action took out a retail liquor dealer’s license to engage in business at a certain place, and while the building was undergoing repairs or alterations he entered the employ of another retail dealer as manager of the business which was conducted at a separate location, under a license issued to the owner, is insufficient to sustain a prosecution upon a charge of selling and keeping for sale intoxicating liquors, in violation of Act No. 291, Pub. Acts 1909.
    Mandamus by George V. Weimer, prosecuting attorney of Kalamazoo county, against Frank E. Knappen, circuit judge of said county, to compel respondent to vacate an order quashing an information wherein William S. Forler was charged with selling and keeping for sale intoxicating liquors without having procured a license therefor.
    Submitted January 30,1912.
    (Calendar No. 24,932.)
    Writ denied February 10, 1912.

      George V. Weimer, in pro. per.

      B. L. Campbell and Harry C. Howard, for respondent.
   Brooke, J.

Relator asks for a writ of mandamus requiring respondent to set aside and vacate an dtder quashing an information and discharging one William S. Forler, who was charged with engaging in the business of selling and keeping for sale spirituous, malt, brewed, and intoxicating liquors, contrary to the provisions of Act No. 291 of the Public Acts of 1909. After examination before a municipal justice, Forler was permitted by the circuit judge to withdraw his plea of “ not guilty ” for the purpose of making a motion to quash the information. This motion sets out six different reasons for the relief sought, only one of which was considered by the learned trial judge to be fatal to the case made by the people. That one reads as follows:

“ The evidence taken upon the examination of respondent, on which the information filed herein is based, shows that no offense under the laws of the State of Michigan has been committed.”

The learned circuit judge, in his answer to the order to show cause herein, says, in part:

“It appeared from the record that said William S. Forler, who was charged with conducting a retail liquor business without a license, in the city of Kalamazoo, during May, 1911, had during the year 1910 conducted a retail liquor business at No. 109 East Main street. It further appears that a license had been issued by the city council of the city of Kalamazoo to said William S. Forler to conduct a business for retail liquor selling at Nos. 226-226J East Main street, Kalamazoo, Mich., and that all the legal requirements had been complied with by the said William S. Forler previous to the time when the complaint was made against said William S. Forler for conducting an illegal retail liquor business. It further appears that a retail liquor dealer’s license was issued to - Louis A. Kertson to conduct a retail liquor business at No. 236 East Main street, Kalamazoo, Mich., and it further appears that the complaint against William S. Forler was based upon his connection with the business of the saloon at No. 236 East Main street, Kalamazoo, Mich. All the legal requirements, such as making the application, filing a bond for approval, having it approved by the proper body and obtaining a license, were complied with by Louis A. Kertson as far as No. 236 East Main street was concerned. It further appears by the record that the license obtained by William S. Forler for Nos. 226-226-^ East Main street was not used until after the time alleged in said complaint for the reason that Nos. 226-226-J- East Main street was undergoing repairs; * * * that the said William S. Forler, who held a retail liquor dealer’s license for Nos. 226-226^- East Main street, and who was unable to occupy that location on account of repairs being made therein, was hired on May 9, 1911, by Louis A. Kertson, to manage his (Kertson’s) retail business at No. 236 East Main street until such time as Forler’s place of business would be ready for occupancy. The record shows that from May 1, 1911, to May 9th or 10th, one William S. Dean was hired by Louis A. Kertson to manage that place. There is no evidence whatever that any one other than Louis A. Kertson individually had anything whatever to do with the hiring of any of these clerks or managers so called; * * * that after careful consideration of all the testimony of the people’s witnesses taken upon the examination in the court below, respondent came to the conclusion that the only possible inference to be fairly drawn from all of the testimony was that William S. Forler was hired by Louis A. Kertson, who held a license at No. 236 East Main street, and who has complied with every legal requirement so that a retail liquor business could be conducted at that place, and that William S. Forler was at such place simply as manager, clerk, or hired man for Louis A. Kertson.”

The other matters covered by the testimony and dealt with in the return need not here be considered. The sole question here presented is whether there was any testimony introduced on behelf of the people tending to establish the eharge against Forler that he was engaged, during the time specified, in the liquor business contrary to the provisions of the statute.

We have examined this record with care, and are satisfied that a correct conclusion was reached by the court below.

The writ is denied.

Moore, C. J., and Steers, Blair, and Stone, JJ., concurred.


author: Steere, J.

text:
    INTERNATIONAL TEXT-BOOK CO. v. ROBERTS.
    1. Amendment — Justices oe the Peace — Appeal and Error — Notice of Defense — Affidavit — Denial of Execution of Contract.
    The order of a circuit court, on appeal from justice’s court, permitting the defense to file an affidavit denying the execution of a written contract, was within the court’s discretion, on a showing by defendant that he first saw the alleged contract at the trial below.
    2. Contracts — Pleading—Trial.
    When plaintiff made no claim of recovery on any other than the contract in writing declared upon, and defendant denied its execution, claiming to have made a different oral contract, which he contends plaintiff had broken, the court committed prejudicial error in admitting evidence of a breach of any other agreement than the written instrument.
    8. Same — Parol Extrinsic Evidence — Written Contract.
    And the court erred in receiving evidence of parol promises or statements of plaintiff’s soliciting agent having some tendency to vary and to contradict the writing.
    4. Same — Trial—Directing Verdict.
    Except as to the question of the execution of the written contract, which was a question of fact, the plaintiff was entitled to peremptory instructions in its favor for the amount of damages agreed upon and stipulated by the parties.
    Error to Jackson; Parkinson, J.
    Submitted November 23,1911.
    (Docket No. 177.)
    Decided February 10, 1912.
    Assumpsit by the International Text-Book Company, a foreign corporation, against William A. Roberts for damages on a declaration specially alleging a contract in writing. Judgment for defendant. Plaintiff brings error.
    Reversed.

      J. J. Galkins (David G. Henderson, of counsel), for appellant.

      Frank L. Blackman, for appellee.
   Steere, J.

Plaintiff sued defendant in justice’s .court to recover $47.79, being a balance claimed to be due on a contract for a course of instruction in the International Correspondence School at Scranton, Pa., of which plaintiff is proprietor. Defendant was a car marker residing in Jackson, Mich., and at the solicitation of one of plaintiff’s agents engaged for a course of' instruction in said school, which was to cost him $68, less 20 per cent, discount. He entered upon his course of study, worked two lessons in arithmetic, “ got down to example 14 ” in the third, "‘couldn’t work it out,” and quit. In the meantime he had made two payments of $5 each. He refused to pay the balance, claiming plaintiff had not given him assistance in his studies as agreed, whereupon this suit was brought. Issue was joined in justice’s court May 24, 1909. Plaintiff declared orally on the common counts in assumpsit and specially on a written contract. Defendant pleaded the general issue, and gave notice that plaintiff had failed to fulfill in certain particulars its part of the contract. The case was tried in justice’s court before a jury and a verdict rendered in defendant’s favor. It was appealed to the circuit court, where defendant again secured a verdict, A motion for a new trial was denied, and the case is now brought before this court by plaintiff on writ of error.

There are many assignments of error, the subject-matter of some of them not appearing in the printed record. They include rulings of the court in permitting amendment of the pleadings, in passing on the admissibility of testimony, in refusing to give plaintiff’s requests, the charge of the court as given, and its refusal to grant a new trial.

What took place at the trial of the case in justice’s court, aside from the pleadings and verdict, is not disclosed, but, after appeal and return of the case by the justice to the circuit court, a motion was made in. the latter court for leave to file an affidavit of the defendant denying execution of the written contract, which plaintiff had offered in evidence in the court below, the application being supported by affidavits of the defendant and his attorney to the effect that they first saw said contract at the time of the trial in justice’s court. An order granting said motion was made by the circuit court September 13, 1909. This was duly excepted to, and is plaintiff’s first assignment of error. The order of the circuit court allowing the affidavit to be filed was discretionary. Polhemus v. Savings Bank, 27 Mich. 44; Freeman v. Ellison, 37 Mich. 459; Chicago, etc., R. Co. v. Edson, 41 Mich. 673 (3 N. W. 176).

At the trial of the case in the circuit court plaintiff introduced in evidence a contract in writing for a course of study in its school purporting to be signed by defendant. The genuineness of defendant’s signature and the circumstances connected with obtaining it were testified to by plaintiff’s soliciting agent, named Clark, who had secured the contract. Plaintiff also introduced evidence as to its organization, the nature and methods of doing its business, its acceptance and observance of the contract sued upon, defendant’s abandonment of the same, and refusal to pay the balance claimed to be due thereon. Defendant denied executing the contract offered in evidence, and testified that it did not bear his signature. He admitted that as a result of negotiations with plaintiff’s soliciting agent, Clark, he signed some kind of a contract for a course of instruction in plaintiff’s school, and commenced a course of study, using certain lessons furnished by plaintiff. His testimony as to what he signed is manifestly indefinite and evasive. He testifies:

“ I signed something, I don’t know what it was. * * * I was rather in a hurry, I guess.”

Later in his testimony he says he understood he was making a contract with the company for a course of instruction; that he did not know all the provisions of the paper which he signed; but “I read part of them; yes, sir, with Mr. Clark. I could not tell you what part I read, though.” He further testified in that connection, under objection, of promises made by Clark to furnish him a special instructor, and subsequent unsuccessful efforts on his part to obtain from Clark personal assistance in his studies.

As the case developed, the only issue of fact to be passed on by the jury was whether or not defendant executed the contract sued upon and offered in evidence. Counsel for plaintiff abandoned the common counts, and stated in open court—

“The whole claim is upon this contract, your honor. * * * He has got to defend on that contract or nothing. We say it is the contract or nothing.”

Counsel for defendant stated in open court:

“They did make a contract with him, in which they stated part of the contract was he should have a special instructor here, or instructor here. * * * We admit he signed a contract or paper, entered into an agreement with them to take their correspondence or their instruction.”

The contract offered in evidence is in the nature of a proposal or subscription from defendant which was subject to acceptance by plaintiff. The court instructed the jury that it was a question of fact for them to determine whether or not the contract, if signed by defendant, had been accepted by plaintiff, saying:

“If it was not accepted at Scranton, it never became binding on the defendant, and plaintiff cannot recover because, as I say, this was a proposition which defendant ‘sent to be accepted at the home office in Scranton.”

The undisputed evidence is that the contract, whatever it was, had been accepted by plaintiff and acted upon by both parties. The defendant himself testified that he was furnished the lessons provided for in the contract offered in evidence, and that with them he entered upon his course of study. If he signed the contract relied upon by plaintiff, it is undisputed that it was accepted. If he did not sign it, the plaintiff cannot recover, and defendant’s claim of a breach of some other and different contract is immaterial. It was error to leave that issue to the jury. This was repeated in the following portions of the instructions which otherwise are correct:

“ As to this claim that plaintiff was guilty of a breach of this contract in the first instance and so absolved him, defendant, from being further bound by it, is not supported by the proof in this case. I must instruct you that if defendant’s signature is genuine and plaintiff accepted the subscription or proposition sent by defendant, and the parties entered upon its performance, that as in my judgment the evidence conclusively shows that defendant was guilty of the breach on his part in the first instance, and in such case your verdict must be for the plaintiff in the sum of $47.79, which the parties agree is a correct computation and proper sum.”
“ If you find defendant signed the contract and that it was accepted, then, as I instructed you, I do not think there is evidence in the case that plaintiff failed to carry out its own contract, but the evidence conclusively establishes that defendant was guilty of the breach, and plaintiff in such case should recover.”

The measure of damages, which otherwise might have been a question for the jury under rules stated in former decisions on this class of contracts, appears to have been stipulated in this case as follows:

“ Tuesday morning it was agreed in open court by counsel that the interest was $3.39, making total due on contract $47.79.”

Testimony was given, under objection, by defendant as to statements and promises of the soliciting agent which were at variance with, or additions to, the contract relied upon. The admission of this testimony was error. International Text-Book Co. v. Marvin, 166 Mich. 660 (132 N. W. 437). The court subsequently sought to cure this error, and instructed the jury “that the testimony as to talks or promises by Clark to the defendant which would contradict or change the writing should be disregarded.”

It is to be borne in mind that the genuineness of defendant’s signature to the contract was the paramount and only proper issue for the jury. The evidence on that issue consisted of certain of defendant’s admitted or claimed signatures, together with his testimony diametrically opposed to that of Clark, the soliciting agent; they two being the only witnesses having personal knowledge. All through the trial of the case this issue was permeated with and confused by imputing questions and accusing answers on matters entirely foreign to the real question, tending to impress the jury with the thought that defendant had been imposed upon and deceived by empty promises of Clark, and thus innocently inveigled by glowing misrepresentations to engage for a course of instruction in the belief that plaintiff would open for him a royal road to learning. In view of the verdict rendered, we think there is force in the claim that such testimony would have a tendency, which the charge of the court could not eliminate, to bias and prejudice the minds of the jury, and divert their attention from the real issue before them. The case should have been tried free from the possibility of such prejudicial influences. Contracts similar to the one under consideration have several times been reviewed by this and other appellate courts. The rights of parties under them are now quite clearly defined. International Text-Book Co. v. Lewis, 130 Mo. App. 158 (108 S. W. 1118); International Text-Book Co. v. Peterson, 218 U. S. 664 (31 Sup. Ct. 225); Id., 146 Wis. 119 (130 N. W. 1134; International Text-Book Co. v. Schulte, 151 Mich. 149 (114 N. W. 1031); International Text-Book Co. v. Jones, 166 Mich. 86 (131 N. W. 98); International Text-Book Co. v. Marvin, supra.

As the case presents itself on this record, aside from the question of the genuineness of defendant’s signature to the contract, the court should have directed a verdict, for plaintiff.

For the errors stated, this case is reversed, and a new trial granted.

Moore, C. J., and McAlvay, Brooke, and Blair, JJ., concurred.


author: Stone. J. Blair, J.

text:
    TITUS v. CHIPPEWA CIRCUIT JUDGE.
    1. Venue — Equity Practice — Parties — Jurisdiction — Commencement oe Suits.
    One residing in the county of St. Clair may not file a bill of complaint in the circuit court for the county of Chippewa against a party defendant that is a resident of the Dominion of Canada to restrain the taking of depositions of certain witnesses in a criminal proceeding pending in the Canadian courts. 1 Comp. Laws, § 434.
    2. Same — Local or Transitory Actions.
    The subject-matter of such suit not being local, as required by the provisions of said law, the proceeding must be instituted in the county where plaintiff resided.
    3. Same — Demurrer Clause — Answer in Equity — Jurisdiction.
    The question of jurisdiction was properly raised by a demurrer clause in defendant’s answer, upon which the hearing could only take plaoe at the time of final hearing.
    4. Mandamus — Injunction—Appeal and Error.
    Although the Supreme Court does not review by mandamus, in ordinary cases the issuance of a preliminary writ of injunction granted upon the hearing of an order to show cause, it will take cognizance of a case which involves merely a question of law.

    Mandamus by Fernando E. Titus against Horace M. Oren, judge of the Chippewa circuit court, to compel respondent to vacate an order granting an interlocutory injunction.
    Submitted January 9, 1912.
    (Calendar No. 24,877.)
    Writ granted February 10, 1912.

      E. S. B. Sutton (O. E Hunt and Burlingham, Montgomery & Beecher, of counsel), for relator.

      Sherman T. Handy, for respondent.

       Mandamus in exercise of superintending control over inferior courts, see note in 51 L. R. A. 33.

   Stone. J.

This is a petition for mandamus to compel the respondent to vacate and set aside his order dated November 4, 1911, ordering the issue of a writ of injunction, being the writ of injunction dated November 9,1911, based on said order in the cause pending in the circuit court for the county of Chippewa, in chancery, wherein Alexander Cunning is complainant and the relator is defendant. The facts briefly stated are as follows:

A criminal cause styled “The King v. Alexander Cunning” is at issue and undetermined in the district court of Manitoulin, Province of Ontario, Dominion of Canada, wherein the said Cunning is charged with the crime of larceny. Thereafter said district court issued a commission authorizing and directing the relator to take depositions of certain witnesses in behalf of the king residing in the county of Chippewa and State of Michigan. Relator presented to the circuit court for the county of Chippewa his petition for an order for subpoenas to compel the attendance of witnesses, claiming to act in pursuance of the provisions of section 10138, 3 Comp. Laws. In pursuance of said petition, an order was made authorizing and directing the clerk of the circuit court to issue subpoenas for the witnesses named. Thereafter, and on October 29,1911, said Alexander Cunning filed a bill of complaint in the circuit court for the county of Chippewa, in chancery, praying for an injunction restraining petitioner and relat- or as such commissioner from taking the depositions of said witnesses. Upon filing said bill, a restraining order was issued as prayed for, together with an order to show cause. Relator filed an answer to the order to show cause and also an answer to the bill of complaint. In his answer to the bill of complaint relator denied that the complainant was entitled to any relief whatever by reason of said bill, and he also prayed that the writ of injunction and order to show cause might be dismissed, set aside, and held for naught. The last paragraph of the answer to the bill is as follows :

“And this defendant, further answering, denies that said complainant is entitled to the relief, or any part thereof, in the said bill of complaint demanded, and prays the same advantage of this answer as if he had pleaded or demurred to the said bill of complaint, and prays to be dismissed with his reasonable costs and charges in this by him in his behalf most wrongfully sustained, and that the injunction issued in this cause, and served upon this defendant, may be vacated, dismissed, and held for naught.”

The order to show cause having been argued and submitted to the court, an order was issued November 4, 1911, granting a preliminary injunction, and on November 9, 1911, the preliminary injunction was issued, and served upon relator. We have examined the record fully, including the answer of the respondent. It appears by the said bill of complaint that the said Alexander Cunning is and was when the bill of complaint was filed, a resident of the city of Port Huron, in the county of St. Clair, “State of Michigan, and, as appears by the exhibits attached to the bill of complaint, the relator. Fernando E. Titus, is, and was when the bill was filed, a resident of Gore Bay, in the district of Manitoulin, Canada.

Was the bill of complaint properly filed in the circuit court for the county of Chippewa, in chancery; and, if not, is that question properly before us ? Our statute (section 434, 1 Comp. Laws), among other things, provides:

“ Every suit in chancery shall be commenced in the circuit court for the county in which the property in dispute is situated, if the subject-matter is local, and, if it is not local, in the county where one of the parties in interest resides, if either is a resident of the State; but if the subject-matter is not local, and neither party resides in the State, the suit may be brought in any county.”

An examination of the bill of complaint shows clearly that no property is in dispute in the case, and that the subject-matter of the bill is not local within the meaning of the statute It is equally clear that neither of the parties resides in the county of Chippewa, but that the complainant therein resides in another county of this State, and that the defendant therein resides in Canada. This being the situation, we are of opinion that the bill of complaint was improperly filed in tbe circuit court for the county of Chippewa, in chancery, and that that court was without jurisdiction to issue the injunction. Chapin v. Montcalm Circuit Judge, 104 Mich. 232 (62 N. W. 351); Richard v. Boyd, 124 Mich. 396 (83 N. W. 106); Roberts v. Roberts, 124 Mich. 414 (83 N, W. 132); Lawrence v. Hathaway, 128 Mich. 119-123 (87 N. W. 84); Prather Engineering Co. v. Railway, 152 Mich. 582 (116 N. W. 376); Wipfler v. Warren, 163 Mich. 189 (128 N. W. 178).

We think that the answer fully raised the jurisdictional question. Under our practice the hearing upon the demurrer clause in the answer could not take place until the final hearing of the cause. Zabel v. Harshman, 68 Mich. 270 (36 N. W. 71); Smith v. Blake, 96 Mich. 542 (55 N. W. 978); Brassington v. Waldron, 143 Mich. 364 (107 N. W. 100). We are constrained, therefore, to hold that the Chippewa circuit court, in chancery, had no jurisdiction of the cause, and hence no power or authority to order or issue the injunction complained of.

We need not discuss the question as to whether mandamus is the proper remedy here. We have said that, while ordinarily this court does not by mandamus review the action of a circuit judge in injunction cases, yet, where the return shows the question in dispute to be one of law merely, it will consider the case. Ionia, etc., Ins. Co. v. Ionia Circuit Judge, 100 Mich. 606 (59 N. W. 250, 32 L. R. A. 481); Siegel v. Wayne Circuit Judge, 155 Mich. 459 (119 N. W. 645), and cases there cited.

The writ will issue as indicated, but without costs.

Steers, McAlvay, Brooke, and Ostrander, JJ., concurred with Stone, J.

Blair, J.

I concur on the ground that the remedy by appeal would not afford an adequate remedy.

Moore, 0. J., concurred with Blair, J.

Bird, J., did not sit.