author: Hookeb, J.

text:
    RAPLEY v. McKINNEY’S ESTATE.
    1. Evidence — Records—Former Decree.
    A landowner agreed with a railroad company that it might build across the land, and when he could make title it would pay him the sum to be awarded by arbitrators. Subsequently a mortgage on the land was foreclosed and M. advanced funds to redeem, taking a. deed from the foreclosure purchaser as security for the amount advanced. M. brought ejectment against the railroad company which thereupon filed a bill to enjoin the suit at law and enforce the agreement, which resulted in a decree in its favor and the payment of the consideration for the right of way to M. After M.’s death an assignee of the landowner made a claim against his estate on the theory that M. received the fund in trust for him under a parol agreement to so hold it. Held, that on a trial of the contest the decree and records in the chancery case were admissible as showing the origin of the fund, and as explanatory of the central fact in the case.
    2. Statute oe Frauds — Agreement Concerning Land.
    A parol agreement by the vendee of a purchaser at foreclosure sale to deed a portion of the land to a railroad company for right of way and pay the consideration received therefor to the mortgagor is void under the statute of frauds.
    3. Trusts — Parol Agreements — Validity.
    A parol agreement by the vendee of a purchaser at foreclosure sale to hold the title in trust for the mortgagor is void.
    4. Same — Personalty.
    A valid trust in personalty may be created by parol.
    5. Same — Executed Contract — Existing Fund.
    Where a parol agreement by the vendee of a purchaser at foreclosure sale to deed a portion of the land to a railroad company for right of way and pay the consideration received therefor to the mortgagor has been carried out to the extent of making the deed and receiving the consideration, it cannot be said to be so far executed that a valid parol trust exists as to the money, the fund not having been in existence when the creation of the trust was attempted.

      Error to St. Clair; Tucker, J., presiding.
    Submitted January 30, 1906.
    (Docket No. 67.)
    Decided March 27, 1906.
    Jessie A. Rapley presented a claim against the estate of James McKinney, deceased, for an amount claimed to be due to plaintiff’s assignor. The claim was allowed in part in the probate court,- and the executors appealed to the circuit court. There was judgment for claimant on a verdict directed by the court, and contestants bring error.
    Reversed.

      Stevens, Graham, & Stevens, for appellants.

      Thomas Wellman, for appellee.
   Hookeb, J.

This cause is before us on error to the circuit court, in a trial upon appeal from probate court, and the allowance of a portion of the claim of the defendants in error.

The record shows that some years ago, David Sexton, being the owner of a parcel of land upon which there was a mortgage, made an agreement with the Flint & Pere Marquette Railroad Company, under which it constructed its railroad across the premises, upon the condition that it should ultimately pay to Sexton such sum as should be awarded by arbitrators upon perfection of the title and conveyance. This sum was afterwards fixed at $150. Soon after the agreement was made the mortgage was foreclosed, and the premises were bid in at the sale by one Barrett. It is claimed by the claimant, Rapley, who asserts a right by assignment from Sexton, that Sexton made an arrangement with McKinney, whereby he provided the money necessary to redeem the land, and the title was transferred to him, as security for repayment by Sexton, and that by the arrangement McKinney’s security was not to extend to the right of way of the Flint & Pere Marquette Railroad Company, and that Sexton was to be entitled to the amount to be paid by the company therefor. The title standing in McKinney, after the expiration of redemption, the Flint & Pere Marquette Railroad Company filed a bill alleging the facts above stated (substantially), that McKinney held the premises for the use and benefit of Sexton, having taken a mortgage with notice of its claims, and as security merely, that he had commenced an ejectment case against the railroad company, and refused to carry out the agreement, that it could not state the amount of the award, and asking that the ejectment suit be restrained, and that McKinney and Sexton be required to deed the right of way upon payment of the amount of said award, upon its being ascertained and determined, which it offered to make. McKinney answered, denying that Sexton had any right or interest in the land, and that, although he attempted to make the contract alleged, it was not binding, and denied that any award or agreement to arbitrate was ever made. A decree in favor of the complainant followed, the amount found due from the railroad company being paid into court.

It does not appear that Sexton ever sought to redeem the land from McKinney, but, after McKinney’s death, this claim was filed in probate court, against his estate. Upon the trial at circuit, the record in the chancery cause was received in evidence against objection. The decree in that case provided that a cross-bill, filed by Sexton, in which he 'prayed that McKinney should be required to execute a land contract for the premises to’ Sexton, should be dismissed, leaving him to any action at law that he might have against McKinney and Sexton’s son, Edward, by reason of the facts set up in the cross-bill. It was shown that the amount of $177, paid into court by the railroad company, was paid over to McKinney’s counsel, who applied one-half to payment for his services, and the remainder was applied upon a contract for the sale of the land to Edward Sexton. It was shown that the whole amount fixed by the arbitrators was $150. The court held and charged the jury that David Sexton was entitled to the money, from the railroad company, but that he was under obligation to reimburse McKinney for the expenses of its collection, and that the arrangement to give counsel one-half was a reasonable one, and directed a verdict for the claimant for $97.34, one-half of the fund, and interest. The administrator has appealed.

The questions argued are:

1. Were the chancery records admissible^

%. Was the parol agreement between Sexton and McKinney void under the statute of frauds ?

3. Was it without consideration ?

4. Was the claim sufficiently proved to justify the •direction of a verdict ?

The only question of importance in this case, which the records of the chancery case tended to prove, was the ■origin of the fund which came to the bands of McKinney. The oral testimony showed that McKinney’s counsel received the amount under a contract with McKinney to collect this claim against the railroad. Instead, he began an ejectment suit claiming title. Thereupon the railroad company filed a bill against him and Sexton, and enjoined the ejectment case, and compelled specific performance of ■a contract, paying over the agreed consideration to McKinney through the clerk. This record was received for no other purpose as the record shows. It was proper for that purpose. By taking the amount of the decree, it is as though an admission of McKinney had been shown that this identical money was received from the railroad •as compensation for its right of way. The pleadings, to the introduction of which special importance is attached, proved nothing of significance, and, like the decree, are valuable only as explanatory of the central fact. He was a party to that litigation, and we need not inquire whether it raised and adjudicated rights as between him and Sexton for no claim that it did is made, and it is not apparent that it was given any weight by the circuit judge, whose action could as well have been, and probably was, based upon other testimony, which alone could justify it. The answer of Sexton states his claim, but only as a pleading, and would not be admissible as evidence of such facts; but it is of assistance in showing that certain questions in the present case were not disposed of in that case. No harm resulted if it was not admissible for this purpose.

The rock upon which claimant’s right to this money must rest, is the alleged agreement between Sexton and McKinney that the latter should furnish money for the redemption of the place as a loan to Sexton, and take a conveyance from the purchaser at foreclosure sale, as security, and that this security should be subject to the rights of the railroad, and that the money, when received from the railroad, should be paid to Sexton. If it can be said, that the testimony shows that Sexton had any right of redeifiption at the time that McKinney took his deed from Barrett, so that such deed can be held to .be a mortgage from Sexton to McKinney, under the rule laid down in Malone v. Danforth, 137 Mich. 227, the parol promise that McKinney should convey the land either to Sexton or the railroad company, and pay the price which should be received therefor, to Sexton, was void, under the statute of frauds. The claimant cannot be heard to say that this deed does not cover the half acre; for to do so would be to contradict, not only the express terms of the deed, but the only testimony that we have in the case, viz., that the course taken was for the express purpose of giving McKinney a title to the half acre, which should be superior to the railroad claim. That McKinney was to hold title to this for the benefit of Sexton may be true, but, if so, he was to hold it in trust for Sexton for some purpose, and such trust was void under the statute. ' But it may be said that the oral arrangement, though void, has been carried out, to the extent of converting the half-acre parcel into money, and that such money is a trust fund, held for the benefit of the claimant, under the rule followed in Calder v. Moran, 49 Mich. 14. That a valid trust in personalty may be created by parol, is indisputable, in view of the decision in the case of Calder v. Moran, supra, and the earlier cases of Bostwick v. Mahaffy, 48 Mich. 342, and Bowker v. Johnson, 17 Mich. 42. These cases have been approved in the following cases: Chadwick v. Chadwick, 59 Mich. 87; Penny v. Croul, 76 Mich. 471 (5 L. R. A. 858) — which were referred to in the late case of Eipper v. Benner, 113 Mich. 80, where it was not found necessary to decide the question. The difficulty with this view is that there was no personal property when the arrangement was made. It arose later out of the conveyance of the railroad parcel, and under the decision of Collar v. Collar, 86 Mich. 513 (13 L. R. A. 621), while the agreement might serve to show equities, the trust in the fund could not be enforced at law, unless a new promise was made thereafter. If the rule were otherwise the statute of frauds would be practically nullified because it might be safely disregarded. Moreover, the right to redress would be left to depend upon what the grantee should do with the land. As counsel for the appellant say:

‘ ‘ Such an arrangement could not possibly give Sexton any greater right than if he had quitclaimed his interest in the land occupied by the railroad company to McKinney, with the understanding that McKinney would sell the same, and would turn over a part or all of the proceeds to Sexton.”

Counsel for the claimant seek to treat the fund as existing at the time the arrangement was made, upon the theory that the railroad company became indebted to Sexton when the amount was fixed by the arbitrators. The railroad company promised to buy the land upon the perfection of the title, and to pay the sum thereafter to be determined upon conveyance, and went into possession under that arrangement. The amount was fixed, but title could not be made because of the existing mortgage. Hence the money was not due then, and did not become more than a conditional obligation until McKinney conveyed the legal title.

It follows that the court erred in directing a verdict for the claimant. It is unnecessary to discuss other questions.

The judgment is reversed, and á new trial ordered.

McAlvay, Grant, Ostrander, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Carpenter, C. J. Carpenter, C. J.

license: Public Domain

text:
    CROZE v. ST. MARY’S CANAL MINERAL LAND CO.
    1. Chattel Mortgages — Foreclosure — Conversion — Sale— Place.
    Where mortgaged logs are mingled with logs belonging to another, and it is impossible to sort them at the place of seizure, the mortgagee is not guilty of conversion in removing them to a. harbor in the direction of market, for the purpose of sorting and selling them, as a mortgagee is hot bound to sell the mortgaged chattels at the place of seizure.

      % Same — Sale on Credit.
    A sale of mortgaged chattels by the mortgagee in possession on credit does not constitute a conversion, but only renders him accountable to the mortgagor on the same basis as if he had received cash.
    8. Same — Negligence.
    A mortgagee of logs having rightfully acquired actual possession, his act in negligently removing them from the banking ground on the shores of Lake Superior at an improper time and in an improper manner, and his neglect for an unreasonable time to sell them after taking possession, is not a conversion thereof, but merely renders him liable for the resultant damages.
    4. Same — Damages—Evidence.
    Where logs covered by a chattel mortgage were mingled with logs belonging to another, and there is no evidence by which it can be determined what portion of the logs, which have been permitted by the mortgagee to remain on the rollways until they are deteriorated in value, were not covered by the mortgage, and no evidence as to the amount of certain liens which existed thereon, the mortgagor’s assignee is not entitled to recover for such alleged deterioration.
    ON MOTION FOR REHEARING.
    Sales — Delivery in Bulk — Passing Title.
    Where, prior to the alleged conversion of certain logs by a mortgagee, the mortgagor had sold a part of an entire mass of logs which included both the logs mortgaged and those sold, and the joint agent of the buyer and mortgagee had taken possession of the entire mass for the purpose of sorting and delivering them to the respective parties entitled thereto, the buyer had title to such of the logs as it had agreed to purchase.
    Error to Houghton; Streeter, J.
    Submitted June 15, 1905.
    (Docket No. 11.)
    Decided March 27, 1906.
    Motion to modify opinion granted May 24, 1906.
    Trover by Joseph Croze against the St. Mary’s Canal Mineral Land Company. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Chadbourne & Bees, for appellant.

      Lawrence L. Croze and Tarsney & Fitzpatrick, for appellee.
   Carpenter, C. J.

Plaintiff, as the assignee of a cause of action originally belonging to one Will C. Baudin, brought this action for the conversion of certain timber, and recovered verdict and judgment in the lower court. Defendant asks us to reverse that judgment.

The material facts are as follows: December 27, 1900, Baudin executed and delivered to defendant a chattel mortgage covering the timber in question to secure the payment of an indebtedness of $4,480. In the mortgage the timber was described as “all the logs and timber now cut or that may he cut by the said party of the first part [upon certain described sections of land] excepting from the above 1,000,000 feet, board measure, of long timber 18 feet long and upward, heretofore sold out of said lot of logs to the Tamarack Mining Company.” The mortgage provided that the indebtedness should be paid July 1, 1901, and authorized the mortgagee, in case of default, to take possession, and sell at public auction “or at his option at private sale with or without notice ” sufficient'of the mortgaged property to satisfy the said debt, interest, and reasonable expenses. Baudin did not pay this indebtedness at maturity, and in September, 1901, the defendant through a deputy sheriff took possession of the mortgaged property. When this possession was taken, the logs were cut, part of them had been towed to Portage Lake, and the remainder was on the railways cn the shore of Lake Superior at Misc.y Bay, a place some distance from Portage Lake. At that time the logs belonging to the Tamarack Mining Company had not been delivered and were commingled with the logs of which defendant took possession. It is conceded, however, that the title to the same belonged to the Tamarack Mining Company. The day after defendant seized this property it and said Tamarack Mining Company entered into an agreement to have the logs' “properly boomed and towed to Portage Lake, and there properly sorted and delivered to the several respective parties entitled thereto,” and for this purpose appointed I. A. Moore as their agent and custodian. They also agreed that each party should “bear and pay each its proportion of the cost and expense based upon the number of feet the logs and timber actually sorted and delivered each.” At this time there were liens against these logs and timber aggregating a large amount. These were subsequently paid by defendant and the Tamarack Mining Company. Their precise amount is not shown in the record, nor was it shown on the trial in the court below. Mr. Moore, the joint agent of defendant and Tamarack Mining Company, proceeded to tow the logs on the rbllways in Lake Superior to Portage Lake in conformity with the terms of said ■contract. These logs were moved between September 14 •and October 11, 1901. I think it is but fair to say that the evidence justly warranted the inference that defendant was negligent in attempting such work at that time. It was the stormy season of the year, and the jury might have found that the work was done at increased expense and resulted in the loss of many logs. Not all of the logs ■on Misc.y Bay were removed. There was left on the rollways at that place 466,000 feet, and these have never been removed. Owing to the approach of winter the logs at Portage Lake were not sorted until the spring of 1902. They were then sorted and there was delivered to the Tamarack Mining Company as its property logs to the amount of 528,358 feet. In June, 1902, defendant sold by private sale, on credit, the remainder of the logs for the sum of $7,710.53, and the testimony shows that this was less than the expense of moving the same and the amount expended in paying liens.

The question of paramount importance in this case is whether, under his declaration, plaintiff made a case entitling him to take the judgment of the jury. The declaration contains two counts.- The second count is the ordinary count in trover charging the defendant with converting the property. The first count charges that defendant converted the property by removing the same before sale from the place where it was seized, and it also charges that the timber left at Misc.y Bay was damaged by reason of defendant’s negligence in not caring for and protecting the same. The trial judge overruled plaintiff’s contention that defendant, by removing the logs to Portage Lake, thereby converted the same to its own use. We think he was right. There is no inflexible rule requiring the mortgagee to sell the mortgaged chattels at the place of seizure. See Olcott v. Bynum, 17 Wall. (U. S.) 44. The circumstances in this case forbade such a sale. Part of the property seized was already at Portage Lake. That place lay in the direction of the market. Commingled with these logs were the logs of the Tamarack Mining Company. . Those logs had to be withdrawn before the mortgaged property could be sold, and we think, therefore, it was the duty of defendant to gather the property together at Portage Lake in the manner it attempted. This is made clear by the testimony of plaintiff’s assignor, Baudin, who says:

‘ ‘ The logs could not have been sorted out on the bank nor in the slough. * * * In order to get the Tamarack logs, it would be necessary to bring all the logs together down at Portage Lake, or to some harbor, and then sort them after they were brought down.”

It is also contended by plaintiff that defendant converted the property when it sold the same on credit. This contention was also properly overruled by the trial judge. While it is not to be denied that, in one sense, it is the duty of a mortgagee to sell for cash, it is also true that the only penalty for the breach of this duty is to hold him responsible for the damages thereby caused. That is, to charge him on the same basis as if he had received cash. See Williams v. Hatch, 38 Ala. 338; Jones on Chattel Mortgages (4th Ed.), § 800.

The trial court charged the jury that, if defendant attempted to remove the property from the shores of Lake Superior at an improper time, it thereby converted such property; that, if the defendant neglected for an unreasonable time to sell the mortgaged property after taking possession, that, too, was a conversion; and that it must be held to have converted the 466,000 feet left on the shores of Lake Superior at Misc.y Bay because it left the same there an unreasonable time. Was this charge correct? It must be conceded that it was the duty of defendant to make a sale of the property within a reasonable time after seizure and to effect its removal with due diligence, and while it does follow that it would, in some form of action, be answerable in damages for a failure to perform this duty, it by no means follows that such a failure would amount to a conversion of the property. Does it ? To maintain an action for conversion, one must either have actual possession, or the immediate right to possession. Stevenson v. Fitzgerald, 47 Mich. 166; Axford v. Mathews, 43 Mich. 327; Foster v. Mining Co., 68 Mich. 188; McGraw v. Sampliner, 107 Mich. 141. Plaintiff’s assignor did not have the actual possession. Defendant had that. Defendant was a mortgagee in possession. It had the right to retain that possession so long as its mortgage lien existed. Plaintiff had no right to possession, unless the wrongful conduct of the defendant had terminated its title to the property. Had defendant committed such a wrong as to destroy its mortgage lien, and to give plaintiff an immemediate right of possession of the mortgaged property ?

An instructive case upon this question is Donald v. Suckling, L. R. 1 Q. B. 585. It was there decided that it was not a conversion for the pledgee of a chattel to re-pledge the same, before the maturity of the debt due, for a larger sum than that debt, upon the ground that the wrongful conduct complained of did not destroy the special property of the pledgee. In the course of an opinion in that case, Blackburn, J., said:

“ But I think in all these cases (cases in which it was held trover might be maintained) the act done by the party having the limited interest was wholly inconsistent with the contract under which he had that limited interest, so that it must be taken from his doing it that he had renounced the contract.”

In Rose v. Page, 89 Mich. 105, it was held that a mere irregularity in the sale of chattel mortgaged property in good faith would not subject the purchaser or mortgagee to an action in tort, in which the value of the property can be recovered, leaving the mortgage debt unpaid. This is only another way of saying that an action of trover could not under those circumstances be maintained. In Brown v. Mynard, 107 Mich. 401, this court(said:

“A void attempt to foreclose a chattel -mortgage, in which the mortgagee bids in and retains the property, is not a conversion.”

It follows from these principles that neither unreasonable delay in selling mortgaged property, nor negligence in caring for the same, constitutes conversion. Indeed, there is abundant authority for saying that the total loss of a chattel arising from the mere negligence of a bailee does not constitute a conversion. Anonymous, 2 Salk. 655; Ross v. Johnson, 5 Burr. 2826; Packard v. Getman, 4 Wend. (N. Y.) 613; Hawkins v. Hoffman, 6 Hill (N. Y.), 586. In Marseilles Manfg. Co. v. Perry, 62 Neb. 715, a decision of the supreme court of Nebraska, it was held that a mortgagee, who took possession of mortgaged chattels and retained them for more than two years without making a sale, was responsible for their value as at the time he seized them. This case is, in our judgment, no authority for the proposition that unreasonable delay in removing the property from Misery Bay amounted to a conversion. Trover for conversion is one of the common-law forms of action abolished in Nebraska, and in deciding the case the court was not called upon to consider what constituted a conversion. It may also be said that, even if defendant converted the logs remaining at Misc.y Bay, the reasons hereafter pointed out as decisive against plaintiff’s right to maintain an action of damages for the deterioration of that property would have prevented a recovery.

The distinction between an action for damages and an action for conversion is not merely technical. One who has converted property is liable for the entire value of the property at the time of the conversion, while one whose wrong has damaged that property is held responsible only for those damages. For instance, in this case, the defendant would, in an action (whether in assumpsit or on the case) for damages, be bound to ma'ke good all losses arising from negligently towing the logs; but, according to the law of conversion as applied by the trial judge, he was responsible for the value of all the logs towed, “ and the question of whether there were losses cut no figure whatever.” It is our judgment, therefore, that the negligence of the defendant in towing the logs, its delay for several months to sell them, as well as its delay in moving the same from the banks of Lake Superior, did not destroy its special property therein, and therefore did not give the plaintiff such a possessory right as to entitle him to maintain an action for conversion.

There remains for consideration this question: Did the evidence warrant the jury awarding plaintiff damages on account of defendant’s failure to care for the 466,000 feet of logs left at Misc.y Bay ? There was evidence that these logs, in consequence of the failure to remove them, deteriorated in value, but there was no evidence by which the jury might say what portion of these logs belonged to the Tamarack Mining Company. (And to make up the. 1,000,000 feet belonging to that company there was still due it more than 470,000 feet.) Nor was there evidence of the amount of liens — and concededly there were liens upon this property. There was, therefore, no basis upon which a jury might find that this deterioration damaged plaintiff. The trial court should therefore have directed a verdict in favor of defendant.

Judgment reversed, and a new trial ordered.

McAlvay, Grant, Montgomery, and Ostrander, JJ., concurred.

ON MOTION TO MODIFY OPINION.

Carpenter, C. J.

In a motion to modify our opinion deciding this case (ante, 514) plaintiff states that he did not concede, as therein stated, that the title to the 1,000,000 feet of logs described in the mortgage “ as heretofore sold to the Tamarack Mining Company” actually passed to that company. We supposed that plaintiff intended to make this concession from several circumstances, the most significant of which was his failure to deny the assertion in defendant’s brief that he did make it. We are now persuaded that he did not intend to make it, and we therefore state in this supplemental opinion that lie did not make it.

We think, however, that it is our duty to say that this-statement will not change the effect of our former opinion, because it must be held as a matter of law that the title to the said 1,000,000 feet did pass to the Tamarack Mining Company before the wrongs complained of by plaintiff were committed. Before the commission of those wrongs the joint agent of the Tamarack Mining Company and of defendant took possession of the mass of logs, of which the Tamarack Mining Company’s logs were a part, for the purpose of sorting and delivering them “ to the several respective parties entitled thereto.” By this act, which was authorized by its contract of sale, the Tamarack Mining Company acquired title to such of the logs (viz., said 1,000,000 feet) as it had agreed to purchase. In Lamprey v. Sargent, 58 N. H. 241, it was held:

“In the case of a sale of a part of an entire mass of goods, such as coal, brick, flour, and grain, if the purchaser is allowed to take possession of the whole for the purpose of enabling him to separate the part sold, the title to that part passes to the purchaser.”

See, also, 1 Mechem on Sales, § 703; Iron Cliffs Co. v. Buhl, 42 Mich. 86; Crofoot v. Bennett, 2 N. Y. 258 ; and Weld v. Cutler, 2 Gray (Mass.), 195.

McAlvay, Grant, Montgomery, and Ostrander, JJ., concurred.


author: Blair, J.

text:
    ATTORNEY GENERAL, ex rel. BATTISHILL, v. TOWNSHIP BOARD OF SPRINGWELLS.
    1. Statutes — Title—Subject-Matter.
    The title of Act No. 627, Local Acts 1905, viz.: “ An act to annex certain territory * * * to the city of Detroit, and to apply and make operative in said territory all statutes and laws now or hereafter made applicable to and operative in said city,” clearly expresses the general purpose of the law, to which all its provisions are germane and incidental, within section 20, article 4, of the Constitution, notwithstanding incidential provisions, the effect of which will be to amend the charter and change the boundaries of the city.
    2. Constitutional Law — Legislative Powers — Delegation — Popular Vote.
    Act No. 627, Local Acts 1905, relating to the annexation of territory to the city of Detroit, and providing in section 9 that the act shall not become operative until the proposition to annex the territory shall be approved by a vote of the electors, does not make an unconstitutional delegation of legislative power.
    3. Same — Municipal Corporations — Local Self-Government.
    Municipal corporations are mere instrumentalities of the State for the more convenient administration of local government. Their powers are such as the legislature may confer, and these may be enlarged, abridged, or entirely withdrawn at its pleasure.

    4. States — Legislative Districts — Apportionment.
    Act No. 627, Local Acts 1905, providing for the annexation of a part of the township of Springwells to the city of Detroit, was approved by the governor and given immediate effect on June 8, 1905. In accordance with the Constitution and laws of the State, an enumeration of the inhabitants thereof was made in 1904, and on June 16, 1905, an act was passed to apportion anew the representatives of the State legislature among the several counties and districts. The popular election under which the local act was accepted was held on. July 31,1905, and before the division, by the board of supervisors, of the county into legislative districts. Held, that the local act was not in violation of section 4, article 4, of the Constitution, which provides that each apportionment and division into representative districts by any board of supervisors shall remain unaltered until the return of another enumeration.
    5. Same.
    While the apportionment act of 1901 was supplanted by the apportionment act of June 16, 1905, it must be presumed that the legislature, in passing the latter act, had in mind Act No. 627, Local Acts 1905, which had been given immediate ■effect, and by the provisions of which the territory described was not to be annexed to the city of Detroit until the first Monday of April, 1906, and, construing the two statutes together, it appears that it was the intention of the legislature that during the interval the rights of the electors in such territory should be determined by the old law.
    6. Municipal Corporations — Annexation of Territory — Constitutionality.
    Act No. 627, Local Acts 1905, providing for the annexation of certain territory to the city of Detroit, is not unconstitutional as depriving the people of the annexed territory of their right to local self-government in their village and school matters.
    7. Constitutional Law — Due Process — Cities—Annexation of Territory.
    Act No. 627, Local Acts 1905, providing for the annexation of certain territory to the city of Detroit, is not unconstitutional as depriving the residents of the annexed territory of their property without due process of law by means of illegal tax: ation.
    8. Municipal Corporations — Annexation of Territory — Constitutionality.
    Act No. 627, Local Acts 1905, providing for the annexation of certain territory to the city of Detroit, is not objectionable as placing the inhabitants of the annexed territory outside of the limits of all senatorial and congressional districts, and thus depriving them of the right to be represented, as no provision is made in the act for changing the boundaries of such districts.
    Mandamus by John E. Bird, attorney general, on the relation of Morris Battishill, to compel the township board of the township of Springwells to reconvene and rescind a resolution in regard to an election.
    Submitted March 22, 1906.
    (Calendar No. 21,625.)
    Writ denied March 27, 1906.

      George W. Coomer (Thomas A. E. Weadock and John J. Speed, of counsel), for relator.

      Richard I. Lawson (Timothy E. Tarsney, of coun-. sel), for respondent.

      Timothy E. Tarsney (Henry M. Duffield, of counsel), for intervenor city of Detroit.

      George G. Scott (H. H. Hatch and Fred A. Baker, of counsel), for intervenor village of Delray.

       As to power of legislature to impose burdens upon municipalities and to control their local administration and property, see note to State, ex rel. Bulkeley, v. Williams (Conn.), 48 L. R. A. 465.

   Blair, J.

The attorney general, upon the relation of a taxpayer and elector of the village of Delray, in the township of Springwells, files his petition, praying for a writ of mandamus commanding certain action of the township board, upon the ground that Act No. 627, Local Acts 1905, under which said board took the action complained of, was unconstitutional and void. The act in question was' adopted by the legislature, approved by the governor, and given immediate effect on the 8th day of June, 1905, and is entitled:

“An act to annex certain territory situated in the township of Springwells, in the county of Wayne, to the city of Detroit, and to apply and make operative in said territory all statutes and laws now or hereafter made applicable to and operative in said city.”

Section 1 of the act declares that:

“On or after the first Monday in April, 1906, the ter- ' ritory hereinafter described situated in the township of Springwells, in the county of Wayne, shall be by virtue of this act annexed to and made to form a part of the city of Detroit.”

Section 2 directs that the said territory so annexed to said city on and after the first Monday in April aforesaid shall be, in part, annexed to the present sixteenth ward in said city, and, in part, form a ward to be known as the eighteenth ward in said city. Section 3 directs the common council of the city of Detroit, within 15 days after the first Monday in April, 1906, to divide said ward 18 into election districts, appoint registrars and inspectors of election therein, and call a special election to be held in said ward 18 for the election of officers. Section 4 declares that:

“ From and after the said first Monday in April, 1906, the corporate organization of the villages of Delray and Woodmere, and all the powers and duties of the several boards and officers thereof shall cease and determine, and all corporate powers and authority vested in the said township of Springwells, in respect to the territory hereby annexed to said city, shall cease and determine, and thereupon all right and title to property, both real and personal, and all claims and demands belonging * * * to the township of Springwells in its corporate capacity shall pass to and vest in said city. The officers of said villages and township shall thereupon transfer the possession and control thereof to the common council of said city, or to such officer or officers as said common council may direct; all moneys• belonging to either of said villages shall be paid over to said city, and all books, papers and documents belonging to said villages or either of them shall be transferred and delivered to the common council of said city or to such officers as they may designate. All bonds, debts, and obligations, of every name and nature, owing by either of said villages at the date aforesaid shall be borne and paid by said city.”

' Section 5 provides for the apportionment of taxes between the city and township according to the relative valuation of the taxable property. Section 6 directs that on and after the 30th day of June, 1906, the corporate organization of the several public schools and school districts within the territory so annexed and the powers and duties of the several boards and officers thereof shall cease and determine, and thereupon all right and title to the property, both real and personal, belonging to either of said public schools or school districts situated entirely within said territory so annexed to said city, shall pass ■and vest in the board of education of the city of Detroit. Section 8 declares that all the provisions of the charter of the city of Detroit and all statutes and laws applicable to the said city shall, on and after the first Monday in April, 1906, apply to and be operative in the territory so annexed to said city in like manner as in the other territory of said •city, except as in the act otherwise provided. Section 9 declares:

“The foregoing provisions of this act shall not become ■operative until the proposition to annex the territory hereinbefore described, to the city of Detroit, shall be approved by a majority vote of the qualified electors voting thereon residing in said territory at an election to be held ■as herein provided for that purpose.”

Provision is made in said section for the machinery for bolding said special election in accordance with its re•quirements.

The relator contests the constitutionality of said annexation act, and alleges several grounds of invalidity:

“ (a) The referendum contained in said act and the submission of the question whether it should become a law or not to a vote of the electors of the territory therein described is unconstitutional and void, being contrary to article 1 of section 4 of the Constitution of Michigan, which provides: ‘ The legislative power shall vest in a senate and a house of representatives.’ Said act is void because it allows the voters of the villages of Delray and Woodmere .and a portion of the township of Springwells •aforesaid to' amend the charter of the city of Detroit.
(b) The act embraces more than one object, and those ■objects are not designated in the title of the act, contrary to section 20 of article 4 of the Constitution of said State.
“ (c) The act undertakes to amend the charter and •change the boundaries of the city of Detroit, which objects are not mentioned in the title.
(d) Said act is void because it undertakes to allow the general laws of the said State to be amended and repealed by a vote of the people of two villages and part of a township ; said laws not being any of those upon which the people of said State or said electors have the right to vote under the terms of the Constitution of this State.
“ (e) Because it permits the voters of one village in said. State to repeal the charter and destroy the incorporation of another and different village in said State, against the will of the electors of the latter.
“ (/) Because it would alter the boundary of legislative district, contrary to the Constitution of this State.
li{g) Because it increases the number of supervisors in said county, contrary to the Constitution of this State.
(h) Because it allows the people of the villages of Del-ray and Woodmere and a portion of the township of Springwells to repeal the law creating the public schools of Delray.
“ (i) Because it deprives the people of Delray of their right of local self-government in their village and school matters and, through the means of illegal taxation, to deprive them of their property without due process of law, contrary to the Constitution of said State and the Constitution of the United States.”

The answer of respondents upon the validity of Act No. 627 of the Local Acts of 1905, referred to in said petition, avers, in the ninth paragraph thereof, that an election was held in said territory proposed to be annexed to the city of Detroit in pursuance of the requirements of said act, and that a majority of 508 of the qualified electors voting thereon, residing in said territory proposed to be annexed to the city of Detroit, voted in favor of said proposition of annexation; that an enumeration of the inhabitants of the State of Michigan was made pursuant to law in the year 1904, and that the legislature apportioned to the county of Wayne 14 representatives in the State legislative body by Act No. 244 of the Public Acts of 1905; that on October 23, 1905, the board of supervisors divided the.county of Wayne into four legislative districts, and placed said annexed territory in the First representative district as a part of the city of Detroit, and placed the township of Springwells, consisting only of that part of the territory of said township as would remain after the annexation, in the fourth representative district of Wayne county.

The title of the act clearly expresses the general purpose of the law, to which all of its provisions are germane and incidental. We entertain no doubt of its sufficiency. People v. Mahaney, 13 Mich. 481; People v. Bradley, 36 Mich. 447; Hargrave v. Weber, 66 Mich. 59.

The most serious question in the case arises upon the objection that the referendum clause of the act violates the Constitution, which lodges all legislative power in the senate and house of representatives, and that such power cannot be delegated. There are not wanting highly respectable authorities to support this objection. On the other hand, authorities of equal weight hold such a reference as that in question here to be permissible, and not a delegation of legislative power. The precise question presented by this record has not beén passed upon by this court. We do not think, however, that this case falls exactly within the principle of Feek v. Bloomingdale Township Board, 82 Mich. 393 (10 L. R. A. 69). In that case the operation of the local option law in a particular county is made to depend, to a certain extent, upon the approval of a majority of the electors of said county, but the decision rests largely upon the constitutional provision cited by the court. It is true, .also, as contended by counsel for relator, that the local option laws are an exercise of the police power, and are sustainable upon that ground. But this is simply saying that in such cases it is proper to submit the question whether the provisions of such a law shall be availed of in a particular locality to the judgment of the people of that locality. As said by Justice Cooley and quoted with approval by this court in the Feek Case, in speaking of the constitutionality of local option laws:

“They relate to subjects which, like the retailing of intoxicating drinks, or the running at large of cattle in the highways, may be differently regarded in different localities, and they are sustained on what seems to us the impregnable ground that the subject, though not .embraced within the ordinary power of the municipalities to make by-laws and ordinances, is, nevertheless, within the class of police regulations, in respect to which it is proper that the local judgment should control.” Cooley on Constitutional Limitations (7th Ed.), p. 174.

Many of the cases which support relator’s contention involve general laws affecting the whole people of the State, and the weight of authority prohibits a reference of such laws to the people for their approval or rejection.

“The question then arises, whether that which may be done in reference to any municipal organization within the State may not also be done in reference to the State at large. May not any law framed for the State at large be made conditional on an acceptance by the people at large, declared through the ballot box ? If it is not unconstitutional to delegate to a single locality the power to decide whether it will be governed by a particular charter, must it not quite as clearly be within the power of the legislature to refer to the people at large, from whom all power is derived, the decision upon any proposed statute affecting the whole State ? And can that be called a delegation of power which consists only in the agent or trustee referring back to the principal the final decision in a case where the principal is the party concerned, and where perhaps there are questions of policy and propriety involved which no authority can decide so satisfactorily and so conclusively as the principal to whom they are referred ?
“If the decision of these questions is to depend upon the weight of judicial authority up to the present time, it must be held that there is no power to refer the adoption or rejection of a general law to the people of the State, any more than there is to refer it to any other authority. The prevailing doctrine in the courts appears to be that, except in those cases where, by the Constitution, the people have expressly reserved to themselves a power of decision, the function of legislation cannot be exercised by them, even to the extent of accepting or rejecting a law which has been framed for their consideration.” Cooley on Constitutional Limitations (7th Ed.), p. 168.

The learned jurist, however, expresses the opinion that it is clearly constitutional to refer to the people of a locality for their determination questions which peculiarly affect that locality.

“Nevertheless, as the corporators have a special and peculiar interest in the terms and conditions of the charter, in the powers conferred and liabilities imposed, as well as in the general question whether they shall originally be or afterwards remain incorporated at all or not, and as the burdens of municipal government must rest upon their shoulders, and especially as by becoming incorporated they are held, in law, to undertake to discharge the duties the charter imposes, it seems eminently proper that their voice should be heard on the question of their incorporation, and that their decisions should be conclusive, unless, for strong reasons of State policy or local necessity, it should seem important for the State to overrule the opinion of the local majority. The right to refer any legislation of this character to the people peculiarly interested does not seem to be questioned, and the reference is by no means unusual.
“ For the like reasons, the question whether a county or township shall be divided and a new one formed, or two townships or school districts formerly one be reunited, or a city charter be revised, or a county seat located at a particular place, or, after its location, removed elsewhere, or the municipality contract particular debt's, or engage in a particular improvement, is always a question which may, with propriety, be referred to the voters of the municipality for decision.” Cooley on Constitutional Limitations (7th Ed.) pp. 166-168.

The opinion of Justice Cooley upon a question of constitutional law is entitled to great weight, and we are satisfied that in this instance it is in harmony with the decisions of the great majority of the courts. See People v. McFadden, 81 Cal. 489; People v. Nally, 49 Cal. 478; Stone v. City of Charlestown, 114 Mass. 214; Graham v. City of Greenville, 67 Tex. 62; State v. O’Neill, 24 Wis. 149. We hold, therefore, that the act was not unconstitutional as an unlawful delegation of legislative power. This conclusion renders it unnecessary to consider several of the objections urged against the act, since the results which followed the acceptance of the act by the vote of the people interested flowed from the act itself, and not from the people who voted to adopt it.

“ Municipal corporations are mere instrumentalities of the State for the more convenient administration of local government. Their powers are such as the legislature may confer, and these may be enlarged, abridged, or entirely withdrawn at its pleasure.” . Meriwether v. Garrett, 102 U. S. 472, 511.

Does the act violate the provisions of article 4, § 4, of the Constitution ? In accordance with the Constitution and laws of the State, an enumeration of the inhabitants thereof was made in 1904. On June 16, 1905, “An act to apportion anow the representatives of the State legislature among the several counties and districts of this State ” was approved, and took effect on September 17, 1905. Act No. 244, Pub. Acts 1905. The election under Act No. 627, Local Acts 1905, was held on the 31st day of July, 1905. At a meeting of the board of supervisors of Wayne county, held on the 23d day of October, 1905, the board, pursuant to the statute, section 2486, 1 Comp. Laws, divided the county of Wayne into four legislative representative districts and thereby declared that the several representative districts should be composed of territory and legislative representatives apportioned to each district, as follows: District No. 1, to be the city of Detroit, and to be entitled to 11 legislative representatives. District No. 2, to be comprised of the townships of Dearborn, Gratiot, Greenfield, Grosse Point, Hamtramck, Nankin, and Redf ord, and to be entitled to 1 legislative representative. District No. 3, to be comprised of the townships of Brownstown, Canton, Huron, Livonia, Plymouth, Romulus, Sumpter, Taylor, and Yan Burén, and to be entitled to 1 legislative representative. District No. 4, to be comprised of the townships of Ecorse, Monguagon, Spring-wells, and the city of Wyandotte, and to be entitled to 1 legislative representative. Under the apportionment and division into representative districts made after the census of 1900, the city of Detroit was made the first district, and the townships of Springwells and Ecorse and the city of Wyandotte, the fourth district, of Wayne county. It is alleged in the answer of respondents, and not denied, that, in making said division and apportionment, the said board of supervisors, in obedience to the act of June 8, 1905, treated the territory covered by the act of June 8,1905, as a part of the city of Detroit, and treated the township of Springwells as consisting only of that part of the territory of said township as would remain after the annexation. Independent of such averment, the courts would presume, in the absence of record evidence to the contrary, that the board of supervisors acted in conformity to the law. Even if it clearly appeared from the records of the board that it had disregarded the statute, such illegal action could not affect the constitutionality of the law1,-which alone is attacked here. We are of the opinion that the local act was not unconstitutional for this reason, and that the case, in this respect, falls within the decision in People v. Bradley, 36 Mich. 447.

It is objected that this conclusion disfranchises the electors of the detached territory. We do not regard this objection as sound. It was held, in Giddings v. Secretary of State, 93 Mich. 1 (16 L. R. A. 402), “that each apportionment act remains in force until it is supplanted by a subsequent valid act.” While the apportionment act of 1901 was supplanted by the apportionment act of 1905, we do not think it necessarily follows that all acts under the prior statute would be void. It must be presumed that the legislature, in passing the apportionment act of June 16, 1905, had in mind the local act of June 8, 1905, or vice versa, which had been given immediate effect, and by the provisions of which the territory described was not to be annexed till the first Monday of April, 1906. Construing the two statutes together, we think it was the intention of the legislature that the new act should not supplant the old as to the territory in question until the time arrived when the annexation actually took place,. and that, during the interval, the rights of electors in such territory should be determined by the old law.

It is further objected that the act is unconstitutional—

“Because it deprives the people of Delray of their right of local self-government in their village and school matters and, through the means of illegal taxation, to deprive them of their property without due process of law, contrary to the Constitution of said State and the Constitution of the United States.”

We regard these objections as disposed of against relator’s contention by the following decisions, which we content ourselves with citing: People v. Ryan, 19 Mich. 203; Mount Pleasant v. Beckwith, 100 U. S. 514; Turnbull v. Board of Education of Alpena Township, 45 Mich. 496; Smith v. Mayor, etc., of Saginaw, 81 Mich. 123; 1 Comp. Laws, §§ 3462, 3465, 3469; Township of Gladwin v. Township of Bourrett, 131 Mich. 353; Kelly v. Pittsburgh, 104 U. S. 78.

It is contended that the act is unconstitutional because its effect is to place the inhabitants of the annexed territory outside of the limits of all sentatorial and congressional districts and thus deprive them of the right to be represented in the senate and in congress. The answer to this contention is that the act had no effect on the boundaries of either a senatorial or a congressional district. There are no other objections which, in our opinion, require discussion. In view of the fact, however, that there is some variation in the language of the act as to the time when the annexation shall become effective, we think it proper to say that, in our opinion, it was the intention of the legislature that the annexation should take effect the first Monday of April, 1906.

The writ is denied.

Carpenter, C. J., and McAlvay, Grant, Ostrander, Hooker, and Moore, JJ., concurred.


author: Montgomery, J.

text:
    LADENSACK v. JOHNSON.
    1. Cancellation oe Instruments — Undue Influence — Inadequate Consideration.
    On a bill to set aside certain conveyances on the ground that they were obtained for an inadequate consideration by the exercise of an undue influence, evidence considered, and held, to sustain a decree for complainant.
    2. Same-Fraud.
    Evidence as to another conveyance, held insufficient to so connect the grantee therein with the fraudulent conduct of her husband as to support a decree for complainant.
    3. Appeal and Error — Chancery Appeal — Objection not Raised Below.
    An objection that an administrator cannot join with heirs in a bill to set aside a conveyance made by decedent, without a showing that the land is needed to pay debts, will not be considered on appeal where the question was not raised below and there is no reason why a decree cannot be entered that will do justice to all parties.
    Appeal from Wayne; Brooke, J.
    Submitted January 4. 1906.
    (Docket No. 6.)
    Decided April 3, 1906.
    Bill by Philip Ladensack and William M. Mertz, administrator with the will annexed of the estate of Carl J. Ladensack, deceased, against Thomas H. Johnson, Elizabeth Johnson, Charles Ladensack, and others, to set aside certain deeds. From a decree for complainants, defendants Johnson appeal.
    Modified.

      Dalton, Mertz & Benaud, for complainants.

      William C. Manchester and George H. Prentis, for defendants Johnson.

      Crane & Crane, for defendants Ladensack.
   Montgomery, J.

The following statement is taken from the opinion of Judge Brooke, who heard the case bej low:

“The bill of complaint in this cause is filed by Philip Ladensack and William M. Mertz, administrator with the will annexed of the estate of Carl J. Ladensack, as complainants, against Thomas H. Johnson, Elizabeth Johnson, Mary Edem, and John Edem, .all of Detroit, and Charles Ladensack, Margaret Ladensack, and Lizzie Ladensack, all of the city of Saginaw. The complainant Philip Ladensack is a son of Carl J. Ladensack, deceased. The defendants Elizabeth Johnson and Mary Edem are daughters of the said Carl J. Ladensack, and the defendants Charles Ladensack, Margaret Ladensack, and Lizzie Ladensack are infant children of Frank Ladensack, who was in his liftime a son of the said Carl J. Laden-sack. The bill is filed for the purpose of setting aside certain conveyances from Carl J. Ladensack and his wife, made in their lifetime, to Elizabeth Johnson and Thomas H. Johnson, and to set aside a deed from said Thomas H. Johnson and Elizabeth Johnson to Mary Edem and John Edem, and to reach certain funds which it is complained by the complainants are in the hands of the defendant Thomas H. Johnson, belonging to the estate of Carl J. Ladensack, deceased.
“ Up to the year 1887, the deceased, Carl J. Ladensack, had lived upon a small farm in the vicinity of Detroit. In the fall of that year he sold his said farm for an express consideration of $5,555. * * * At that time he was possessed of a house and lot on St. Joseph street in the city of Detroit, and at or about that time he expended in improvements upon said lot the sum of $1,600. He, likewise, in the fall of 1887, purchased a lot on Ash street adjoining the residence of his daughter Elizabeth Johnson, for the sum of $900, and erected thereon a house at an expense of about $1,000. * * * An examination of his bank account in the People’s Savings Bank, covering the years 1886 and 1887, shows that he had several hundred dollars on deposit in that bank prior to the sale of his farm. Assuming that he had no money except the proceeds from the sale of his farm, it will be seen that, after deducting the two sums of $1,600 paid for repairs on the St. Joseph street house and the sum of $1,900 paid for the house and lot on Ash street, he had remaining $2,055 in cash at the time he took up his residence upon Ash street next door to his daughter Elizabeth Johnson. He sold the house on St. Joseph street to his daughter Mary Edem and her husband for the sum of $2,000, the full consideration of which was paid. Christina Ladensack, the wife of his son Frank, paid to him the sum of $1,000 at the time she sold the 32 acres which her husband had owned during his lifetime. These two sums, together with the $2,055 already mentioned, would amount to $5,055. The old gentleman was at the time possessed likewise of a 20-acre plot of ground not far from Detroit, worth somewhere from $1,300 to $2,000. At the time he took up his residence in the city of Detroit in 1888, he was 71 or 72 years of age. He died February 9, 1902, at the age of 85; his wife having died some three or four months previous. During the last three months of his life he lived with his daughter Elizabeth Johnson. At his death it was found that he left no estate. A conveyance from himself and wife to Elizabeth Johnson, his daughter, of the house and lot on Ash street, had been made some time during the year 1900, and a further conveyance of the 20-acre lot had been made from himself and wife to Thomas H. Johnson for an expressed consideration of $1,600 some time in the year 1901.
“ Upon the appointment of the administrator, no assets were discovered, except two promissory notes from Thomas H. Johnson to Carl J. Ladensack; one for $1,500, dated July 24, 1897, and one for $400, dated May 24, 1899. These two notes, after the death of Carl J. Laden-sack, were found to be in the possession of John and Mary Edem, and were claimed by Mary Edem as her own property. The administrator of the estate, although at one time in possession of these two notes as administrator, reached the conclusion that they were in fact the property of Mary Edem and turned them over to her. * * * Suit was commenced to recover the interest upon the notes by the Edems against Johnson, and those suits were pending in this court when Mary Edem and her husband, John, entered into an agreement with the defendant Johnson, whereby Johnson agreed to and did pay to them the sum of $250 and conveyed to them the 20 acres, the deed of which he had received from Carl J. Laden-sack for an expressed consideration of $1,600, no part of which except $1 had been paid by him for the same. It appears that, prior to the settlement last mentioned between the Edems and the defendant Johnsons, the Edema had been acting in concert with Philip Ladensack, the brother of Mrs. Edem, in an effort to recover from the Johnsons the estate of Carl J. Ladensack. After said settlement was made this bill was filed, and Mary and John Edem became parties defendant, instead of parties complainant, as had been originally contemplated.
“After his appointment as administrator the complainant Mertz demanded of the Johnsons the books, papers, and effects of Carl J. Ladensack, deceased, and among the same were turned over to him three account books, all conceded to be in the handwriting of the deceased. From an examination of these books it is apparent that the deceased, Carl J. Ladensack, was a man of considerable education and. exceedingly careful in the method of his bookkeeping. The account books ran back to 1850 or thereabouts, and contained careful memoranda of all financial transactions. The one current at the time of his death commenced in the year 1882, and contained careful statements of account practically up to the time of his death, and with one notable exception. Pages 61 to 76, inclusive, are missing from this book. The last entry on page 60 is under date of October, 1887, and the first entry on page 77 is under date of April, 1896; so that the history of the financial dealings of the deceased between the years 1887 and 1896 is-wholly lacking. The leaves upon which the transactions were evidently recorded have been cut from the book with a scissors, and are missing, and are conceded to have been absent from the book at the time the same was turned over to Mertz, the administrator.
“At the time the deceased went to live on Ash street beside the defendant Johnson, Johnson was engaged in a small way in the manufacture and sale of horseradish and other grocery sundries. It appears from the testimony that from that time/ the business of Johnson was rapidly and considerably enlarged, and it likewise appears from the admissions of the defendant Johnson that, between the year 1887 and the year 1894, he bought and paid for real estate to the amount of upwards of $8,000.
“ It is claimed by the complainants that the two notes above referred to should be decreed to belong to the estate of Carl J. Ladensack, deceased; that the conveyances covering the 20-acre lot and the house on Ash street should be set aside, and that those two pieces of property should be decreed to belong to the estate of the deceased; and that the defendant Thomas H. Johnson should be compelled to account to the estate for the profits of his business since the year 1888, at which time it is claimed that he secured from the deceased money with which to prosecute it. It is claimed by the complainants that the deceased, who was some 83 or 84 years old at the time of the execution of the deeds in question, was mentally incompetent to understand the meaning and purpose of his acts, and was wholly under the influence of the defendants Thomas and Elizabeth Johnson.
“The defendant Thomas H. Johnson claims that, at the time of the death of the deceased, he owed the two notes amounting to $1,900 to Carl J. Ladensack, and no other or further sum. His wife, Elizabeth Johnson, claims that the conveyancé to her of the house and lot on Ash street was without consideration, but, as expressed by her father, for the purpose of putting her in possession of her share of his estate. It is admitted by the defendant Thomas H. Johnson that no money was paid for the conveyance to him of the 20 acres, although the consideration expressed was $1,600; but he avers that at the time he agreed with the old gentleman that he would furnish him with whatever money was necessary during his lifetime.
“ It' is obvious, however, that inasmuch as the deceased was at the time some 84 years of age, and the defendant Johnson already owed him, according to his own testimony, $1,900, that there could be small chance of his ever being called upon to pay any part of the expressed consideration under this agreement. Johnson likewise testified that, some time after the execution' of the deed to him of the 20 acres, the deceased told him that, if he sold the 20 acres within five years, he should pay from the sum received $500 to Philip Ladensack, and $500 to Mary Edem. He, however, says that he did not agree with his father-in-law to make these payments, and claims the absolute title to the 20 acres, and that he had the right to convey the same to John and Mary Edem in order to redeem the notes held by them against him.”

The circuit judge decreed that Mary Edem was entitled to retain the two notes of $400 and $1,500, respectively, and also decreed that both the deed to Thomas H. Johnson and that to Elizabeth Johnson should be set aside. The defendants Johnson appeal.

That the conveyance to Thomas H. Johnson was made upon a wholly inadequate consideration, and when he had a large influence over the deceased, is apparent from the most casual examination of the record. It is also significant that the consideration named in the deed was $1,600, and not that which defendant Johnson now asserts to have been the real consideration. It also appears by Johnson’s own testimony that deceased, after the deed was made, made certain requests as to the disposition of the proceeds of the land conveyed, to which he (Johnson) made no reply, thinking, as he said, that this was a strange way to do business. We are convinced that the deceased never intended this conveyance as an absolute gift, and agree with the circuit judge that it should be set aside.

As to the conveyance to Elizabeth Johnson the case is not so clear. Standing by itself, this transaction is very similar to that of the transfer of the notes to Mrs. Edem in an effort to equalize the estate. The transfer was made before the gift to Mrs. Edem, and seems to have been the inducing cause for that gift. At least, the fact that this transfer had been made to Elizabeth was made use of by the Edems as furnishing a reason why something should be given to Mary. There seems to have been the same reason for each gift. The circuit judge appears to have reached the conclusion that the deed to Elizabeth should be set aside by concluding that the Johnsons had a considerable sum of money belonging to the deceased which was not accounted for. In any view, there is nothing which connects Mrs. Johnson with any fraud in this respect. More than this, a most careful examination of the record convinces us that, however wanting in candor Thomas H. Johnson may have been, the evidence fairly shows that the two notes represented all that he owed to deceased at any time after 1900. This conclusion is based, in part, upon the books of account kept by the deceased. We have, as we think, given due weight to the fact that Johnson was not frank with the probate court, and have considered the charge that he mutilated the decedent’s books; but the evidence, as a whole, is convincing that the indebtedness was in fact truly represented by the two notes.

It is contended by defendants’ counsel that the bill cannot be maintained because there was a misjoinder of complainants. It is said that the administrator could not file the bill to set aside the transfer of real estate, except upon a showing that there are creditors of the estate who cannot be paid out of the personalty, and that Philip Ladensack, as heir, cannot maintain a bill to reach personal property. There is nothing standing in the way of a decree which shall do justice to all the parties. No demurrer was interposed by the defendants, nor can we discover that this point was made in the court below. Under these circumstances, the court will not dismiss the proceeding for such a fault, if there be one, but will proceed to enter a proper decree. Reed v. Wessel, 7 Mich. 139.

The decree of the circuit court will be modified as above indicated. The deed to Thomas H. Johnson will be set aside, but the deed to Elizabeth Johnson will stand. Elizabeth Johnson will recover the costs of her appeal, to be paid out of the estate. No costs will be awarded for or against her for proceedings in the court below, but complainants will recover their costs in the court below against Thomas H. Johnson.

Blair, Ostrander, Hooker, and Moore, JJ., concurred.


text:
    DALLAVO v. SNIDER.
    1. Libel and Slander — Spoken Words — When Actionable.
    To say of a business man “ He is not worth a dollar; everything is in his wife’s name” is not slanderous per se unless said of and concerning him in his business.
    2. Same — Words in Relation to Business.
    Plaintiff, a mill owner and merchant, having signed an indemnity bond in favor of the sureties on the liquor bond of another, defendant said to the sureties “ He is not worth a dollar-, everything is in.his wife’s name.” Held, that the words were not spoken of and concerning plaintiff in his business.
    3. Same — Issues.
    Where the charge is the uttering of slanderous words concerning plaintiff’s standing in his business, the allegations of the declaration must be sustained by proof that the words were actually spoken of and concerning plaintiff in relation to his business, in order to make them slanderous per se.
    Error to Mecosta; Palmer, J.
    Submitted January 4, 1906.
    (Docket No. 10.)
    Decided April 3, 1906.
    Case by John Dallavo against Jacob Snider for slander. There was judgment for plaintiff for nominal damages only, and he brings error.
    Affirmed.

      Cogger & Broomfield, for appellant.

      McKnight & McAllister and Joseph Barton, for appellee.
   Blair, J.

This is an action of slander. The slanderous publication relied upon is charged in the declaration as follows, viz.:

“Did on, to wit, the 1st day of December, A. D. 1902, at the said village of Remus in the county and State aforesaid, in a certain discourse which the said defendant then and there had with one Prank Simon, in the presence and hearing of divers good and worthy persons, designedly, falsely, and maliciously, speak, publish, and declare ■of and concerning the said plaintiff in connection with his said trade, business, and employment, these scandalous, malicious, and defamatory words, to wit: ‘ Them indemnity bonds (meaning thereby the indemnity bonds given by •one James R. Kaley upon which this plaintiff had become indemnity bondsman) are no good. He (meaning the isaid plaintiff) is not worth a dollar (meaning that plaintiff was not collectible and was insolvent). His property (meaning said plaintiff’s property) is all in his wife’s name.’”

The plaintiff gave testimony as to his business relations, which was undisputed, tending to show that at the time of the publication of the alleged slanderous words, he was the owner of and operating a mill at' Wyman, some 14 miles from Remus, and was buying and selling logs, lumber, and ties, and manufacturing and selling lumber and shingles and ties in the country around Remus.

‘ ‘ In my mercantile business and in buying and selling timber and logs, I did some business on credit. I made .some purchases without paying the cash immediately and, practically, I could deal more advantageously in that way. * * *
“In 1902, about in August, I bought a certain amount •of interest in the Mansfield Mercantile Company at Remus. * * * The Mansfield Mercantile Company was a general store handling dry goods, clothing, shoes, .groceries, crockery, etc. That was a stock company and I put $7,000 of money in there. I continued to have that interest in that business until some time in February or March, 1903. I was vice president of the company.”

The circumstances surrounding the speaking of the alleged slanderous words were, substantially, as follows: 'The plaintiff’s son-in-law, Kaley, was engaged in the ■saloon business and had given to the sureties upon his liquor bond an indemnifying bond signed by plaintiff to induce them to become such sureties. One of the sureties •testified that after he signed the liquor bond he had a talk with defendant at the saloon of one Theisen.

“Jacob Snider says to me, ‘You went Kaley’s bond?’ I says, ‘Yes, sir.’ ‘Well,’ Jake says, ‘ I think you made a great mistake.’ He says, ‘ He is not worth anything/ I says,- ‘ I got Mr. Dallavo’s— He gave me his indemnifying bond.’ ‘ Well,’ he says, ‘ he is not worth anything, he is not worth a dollar, everything is in his wife’s name.’”

The other surety testified to substantially the same conversation. There was no proof or claim of special damages. The defendant introduced no evidence, but rested, at the close of plaintiff’s case.

Plaintiff’s counsel requested the court to charge the jury, amongst other things, as follows:

“In this class of cases, slander per se, it is not necessary for the plaintiff to show malice. Malice is a presumption of law from the publication of words actionable per se, and I charge you that these words are actionable per se and that malice is presumed. Malice is a presumption of law from the false and injurious nature of the charge.
“ In this case the words are actionable per7 se and it is not necessary in this case for the plaintiff to allege or prove any actual damages. It is legally presumed that damages result from the utterance of such words, and that they cause injury as a natural and immediate com sequence.”

The trial judge refused to give either of these requests but instructed the jury that the words were not actionable per se, and that malice must be proved, upon the ground that it did not appear that the words were spoken of the plaintiff, as charged in the declaration, with reference to> his business.

“ So we must go further than the words themselves and ascertain as far as we can from the evidence what were the surrounding circumstances that led up to the talk, in order to determine what was the spirit in which these words were used,” etc.

The important question in this case is whether the words counted upon were slanderous per se. If the words were slanderous per se, the charge of the court was given upon an erroneous theory, which affected the entire charge. If the words were not slanderous per se, the charge was too favorable to plaintiff, since no special damages were proved.

In determining whether words are slanderous per se, a distinction has generally been recognized between words written or printed and words spoken. An exception to this rule has, however, been made in the case of words affecting a person in his profession or business, and it has been held that in such cases the distinction does not exist. The principle upon which this exception rests was questioned by Mr. Justice Christiancy in Weiss v. Whittemore, 28 Mich. 366, and we are satisfied that it is unsound. See Foster v. Scripps, 39 Mich. 376; Tryon v. Evening News, 39 Mich. 636.

The law is well settled that it is libelous per se to publish of and concerning a merchant false statements touching him in his business and naturally tending to injure him therein. And it might well be held that a statement of a merchant’s insolvency printed in the public press, even though connected with some matter entirely distinct from his business, was libelous per se, since the inevitable tendency must be and is intended to be injurious to him in his business. But whatever the rule may be in such a case, we are satisfied that in a case where the charge is the uttering of slanderous words the allegations of the declaration must be sustained by proof that the words were actually spoken of and concerning the plaintiff in relation to his business, in order to make them slanderous per se, and this rule, we think, is sustained by the weight of authority. Van Epps v. Jones, 50 Ga. 238; Van Tassel v. Capron, 1 Denio (N. Y.), 250; Oakley v. Farrington, 1 Johns. Cas. (N. Y.) 130; Cassavoy v. Pattison, 93 App. Div. (N. Y.) 370; Smedley v. Soule, 125 Mich. 192.

In view of our conclusion that the trial judge did not err in holding that the words proved were not slanderous per se, the other assignments of errors become immaterial.

The judgment is affirmed.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.


author: Moore, J.

text:
    J. RICHARDSON & CO. v. NOBLE.
    1. Sales — Breach of Warranty — Recoupment—Notice—Suffi. oienoy.
    In assumpsit for the price of shoes, a notice of recoupment stating that the shoes were not the goods “represented and warranted to be,” but were of an inferior quality and grade, hut which does not state that the goods were sold by sample which they did not equal, or that they were to be other than they were in certain enumerated respects, is insufficient.
    2. Trial — Instructions—Unduly Emphasizing Testimony.
    Where, in assumpsit for the price of shoes, a witness for defendant testifies that they were worth less than the contract price, but there is testimony to the contrary, an instruction that if one witness testified that the shoes were worth less than the contract price the damages on each sho.e would be the difference between the contract price and the price at which the witness fixed it, is erroneous as unduly emphasizing the testimony of a witness.
    3. Same — Verdict—Surplusage.
    Where, in assumpsit for the price of shoes, it appears from the verdict that the jury undertook to give to the plaintiff the ownership of certain shoes returned by defendant on the ground that they were not up to sample, which return plaintiff refused to accept, and to determine the amount of defendant’s indebtedness thereafter, and it is evident that the money part of the verdict would not have been rendered if the jury had understood that they had no authority to decide who was entitled to the possession of the shoes in question, that part of the verdict giving plaintiff possession of the shoes cannot be treated as surplusage and the balance be permitted to stand.
    Error to Berrien; Coolidge, J.
    Submitted January 5, 1906.
    (Docket No. 14.)
    Decided April 3, 1906.
    Assumpsit by J. Richardson & Company against George W. Noble and Walter A. Noble, copartners as G. W. Noble & Son, for goods sold and delivered. There was judgment for plaintiff for less than the amount claimed, and it brings error.
    Reversed.

      Burns & Sweet, for appellant.

      N. H. Bacon, for appellees.
   Moore, J.

The plaintiffs are manufacturers of shoes. In the spring of 1903 they sold the defendants, who are retail shoe merchants, by sample, a bill-of 108 pairs of “ladies patent leather tipped shoes,” 84 pairs at $2.10, the remaining 24 pairs at $1.50 per pair, amounting in all to $212.40, upon which the defendants paid $100 September 10, 1903. The shoes were delivered at defendants’ store between May 27th and May 30th. The defendants commenced to sell the shoes “in two or three days or a week after their arrival.” The defendants claim to have sold all of the $1.50 shoes and 56 pairs of the $2.10 shoes. About December 1, 1903, plaintiff placed the account with attorneys for collection. After this date the defendants returned 28 pairs of the $2.10 shoes to the plaintiff, saying the shoes were not right and he could not use them. The plaintiff refused to accept them and returned them to defendants, and they are in the freight office at Niles now.

January 9, 1904, this suit in assumpsit was commenced for the balance due. Defendants pleaded the general issue, and attached thereto a notice, the material parts of which are as follows:

“ That 84 pairs of the 108 pairs of ladies’ shoes named in the plaintiff’s bill of particulars, were purchased by the defendants from the plaintiff at $2.10 per pair, and were not the goods represented and warranted to be to the said defendants by the said plaintiff, at the time of the sale and purchase thereof, but were shoes of an inferior quality and grade, having cut-off vamps, the vamps thereof not extending to the tips of the soles of the shoes, but only to where the tips began, and also having poor and inferior soles, known as globe soles, being composed of canvas and leather, said soles having stock tips and patent tips made of inferior leather, and said shoes having poor wearing • qualities and not being of merchantable kind. * * *
“ They further aver that by reason of the premises they have sustained great injury and damage to a large amount, to wit, the sum of $500, which said damages the said defendants will recoup,” etc.

Upon the trial the defendants offered to prove the kind, quality, value, and merchantability of the shoes, to the introduction of which testimony the plaintiff objected for the reason that the notice of recoupment was not sufficient. The objection was overruled and the testimony received. The jury returned a sealed verdict reading:

“ J. Richardson & Company, a Corporation, v. Geo. W. Noble et al. •
“ We the juory agree to the following verdic
“ That the defendant pay to the plantive the sum of twenty-eight dollars ($28.00) and give plantive posession of shoes lying in ware house at Niles City.
“Joseph V. Hone, Foremen.”

Upon this verdict the court rendered judgment in favor of plaintiff for $28, and also rendered judgment in favor of the defendants for the costs of the suit to be taxed. The case is brought here by writ of error.

Three questions call for consideration: First. Were the proofs admissible under the notice of recoupment ? Second. Did the judge err in his charge ? Third. Was the judgment entered justified by the verdict ? We will consider them in the order suggested.

It will be observed that in the notice there is no statement that the goods were sold by sample which they did not equal, nor that the goods sold were to be full vamps instead of cut-off vamps, nor is there any suggestion of an express guaranty or of an implied guaranty which was not met. We think the notice is insufficient under the following authorities: Roethke v. Brewing Co., 33 Mich. 340; Watkins v. Ford, 69 Mich. 357; Sinker, Davis & Co. v. Diggins, 76 Mich. 557; Bolt v. Friederick, 56 Mich. 20; Delaware, etc., Canal Co. v. Roberts, 72 Mich. 49; Cir. Ct. Rule 7, subd. b. It is said by counsel the testimony was admissible under the general issue without notice, citing Grieb v. Cole, 60 Mich. 397; Child v. Manufacturing Co., 72 Mich. 623; Pungs v. American Brake-Beam Co., 128 Mich. 318. An examination of these cases will show they are easily distinguishable from this one.

Did the court err in his charge ? We shall not consider each of the errors assigned in relation thereto, because if well taken they are not likely to occur again. We call attention, .however, to that portion of the charge reading as follows:

“ In this case there are no damages on account of loss of business. That has not been established. And the only question is as to the damages on account of these defective shoes. You arrive at that in this way: The damages will be the difference between what the shoes would have been worth if they had been of good workmanship and what they are actually worth as they are. Now, for instance, if one witness testifies that those shoes if properly made had been worth $3, and are worth only $1 as they actually exist, then the damages on each defective shoe would be $2. And you would take the number of shoes that are defective, that is, are defective in that condition, and multiply by two you get the difference.”

There was a witness for defendants who testified substantially as the instance stated by the judge in his charge. There was testimony quite to the contrary on the part of plaintiff. The effect of the charge was to unduly emphasize the testimony of the one witness which ought not to have been done.

Was the judgment entered justified by the verdict ? It is evident the jury undertook to leave with or give the ownership of the 28 pairs of shoes to the pláintiff and to determine the. amount of defendants’ indebtedness after this was done. In this action and under the charge of the court the jury were not authorized to do what they attempted to do. But it is said that part of the verdict giving plaintiff possession of the shoes may be treated as surplusage and the balance of the verdict be permitted to stand. We cannot assent to this suggestion because we think it clear the money part of the verdict would not have been rendered if the jury had understood they had no authority to decide who was entitled to the possession of the shoes then in the warehouse.

Judgment is reversed, and new trial ordered.

Blair, Montgomery, Ostrander, and Hooker, JJ.„ concurred.


text:
    PROULX v. BAY CITY.
    1. Highways and Streets — Defective Sidewalks — Personal, Injuries — Instructions.
    In. an action against a city for personal injuries received on a defective sidewalk, the defense being contributory negligence, instructions examined, and held, not objectionable as submitting the question of contributory negligence solely on the theory that plaintiff had previous knowledge of the condition of the, walk, whereas defendant’s theory was that by the exercise of ordinary care at the time of the injury plaintiff might have observed the condition' of the walk.
    2. Trial — Instructions—Theory of Case — Misapprehension.
    Fairness to the trial coui't requires that, in case of misapprehension by the court in his charge as to counsel’s theory of the case, he should be promptly informed of his error.
    3. Damages — Personal Injuries — Origin of Symptoms.
    Where plaintiff in falling on a defective sidewalk bruised her knee, ran slivers into her hand, and sustained a rupture of the navel, the contention that the verdict should be set aside as including damages for paralysis, numbness, and other symptoms due to hysteria alone, cannot be maintained, since it is for the jury to say whether the physical injury was the direct cause of the paralysis and other symptoms.

      Error to Bay; Shepard, J.
    Submitted January 5, 1906.
    (Docket No. 26.)
    Decided April 3, 1906.
    Case by Elizabeth Proulx against the city of Bay City for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      S. G. Houghton (L. G. Beckwith, of counsel), for appellant.

      T. A. E. & J. O. Weadock {Lewis J. Weadock, of counsel), for appellee.
   Blair, J.

This is an action for personal injuries claimed to have been sustained by plaintiff’s falling on a defective sidewalk within the defendant’s corporate limits. Jefferson street, in Bay City, runs north and south; Eleventh street, east and west. On the northwest corner of the intersecting streets is a vacant lot. About 9 o’clock on the evening of August 12, 1904, the plaintiff, in company with her daughter Blanche, a Mrs. Aronson, and a Mr. Martell, left a house on Jefferson street, between Tenth and Eleventh streets, and proceeded south on the east side of Jefferson street, then turned west, crossing Jefferson street and following the sidewalk on the north side of Eleventh street in front of the vacant lot. Martell and Blanche Proulx walked together and a few feet in advance of the plaintiff and Mrs. Aronson, who walked abreast. When the party had reached a point about 25 feet west of the west side line of Jefferson street, the daughter turned around and said, “Be careful, here is a bad place, mother,” and at that instant, as is testified, plaintiff caught her foot, or her foot sunk into a hole in the sidewalk, and she fell, sustaining, as she claims, injuries for which she is now attempting to recover.

The sidewalk in front of the vacant lot on Eleventh street, where the injury is claimed to have been sustained, was in a very bad condition. It was not fit to walk across-. There were many holes in it, and a number of planks broken. The stringers were rotted away, and the boards loose, and the walk was in such shape that one passing over it would be likely to realize its condition, even on a dark night. There was an electric arc light on the corner of Eleventh and Jefferson, the night was clear, and there were no obstructions to intercept the light, except one telegraph pole, with a bill board attached, about opposite from where plaintiff claims to have fallen, which cast shadows across the walk.

Defendant does not claim that plaintiff knew anything of the condition of the walk prior to the night of the accident. Counsel for defendant contend that plaintiff was guilty of contributory negligence upon her own testimony. There is considerable confusion in plaintiff’s statements upon direct and cross examination, and some of her statements, standing alone, would go far towards supporting defendant’s contention. Taking all of her testimony into consideration, however, in connection with the testimony of her companions, we are satisfied that a question of fact was presented which was properly and fairly left to the jury by the court.

Counsel for defendant also complain that the court erred in submitting the question of contributory negligence to the jury, upon the theory that plaintiff had knowledge of the defective condition of the walk; whereas the defendant’s whole case, on the question of contributory negligence, was based upon the theory that on the night of the accident she could, by the exercise of ordinary care, have ascertained the condition of the walk and avoided the accident. We do not see how the instructions of the court in this regard could have prejudiced the defendant, since he expressly instructed the jury that:

“If you find from the evidence in the case that she was going over that walk, and using such due care and caution and effort to avoid injury to herself as a careful, prudent man or woman would use under like circumstances, walking over the walk, and the injury was brought upon her unavoidably so far as she was concerned, and her action did not contribute to it, and otherwise that she was not at fault herself in exercising her right to walk over that walk in the manner she did, and because of that defect in the walk she caught her foot and was thrown and injured, in that case she is entitled to recover against the city, because it has been guilty of negligence, and in that event she would not be guilty of contributory negligence.
“ Now as to whether or not she was guilty of contributory negligence is a matter for you to determine, gentlemen. You heard the testimony of the plaintiff, telling where she was, and of her starting from home, and of her walking with a friend over the walk, and her attention being called to the condition of the sidewalk by her daughter just as she claims to have caught her foot in the hole and fell. Was she going over the walk with her friend in the usual and ordinary way in which persons would walk over a sidewalk at that time in the evening, and on the walk in the city, or was she heedless, careless, and without regard to her personal ability, without taking any heed where she walked, or how she walked, when she went along there ? If she was using reasonable prudence and care, such as an ordinarily careful and prudent person would use in walking along a walk, and was not at fault, then she is not guilty of contributory negligence; but if she was negligent and heedless, and did not take such care and caution as an ordinarily prudent and careful person would take, in that case she would be guilty of contributory negligence and could not recover.”

Furthermore, if the court was not properly presenting defendant’s theory of the case to the jury, his attention should have been called to his omission. On the contrary, when counsel were asked, “ Is there any claim that there is any testimony that she passed over that walk at any other time?’’the city attorney replied, “Not in nearly two years, I think,” thereby giving the court to understand that she had been over the walk before, and making no complaint of what the court had theretofore said, of which they now complain. Fairness to the trial court requires that, in case of misapprehension as to counsel’s •theory of their case, he should be promptly informed as to iis error.

It is further contended that the verdict should, on defendant’s motion, have been set aside as excessive, for the reason that it included damages for paralysis, numbness, and other symptoms due to hysteria alone, and entirely distinct and unconnected with the physical injury. Nelson v. Crawford, 122 Mich. 466, is cited in support of this contention. The substance of that case is stated in the headnotes as follows:

“ Where defendant dressed himself in woman’s clothes, and went, in a spirit of fun, with no malicious motive or intent, to the residence of plaintiff, a neighbor, where he neither offered nor threatened violence, but merely followed plaintiff into her house, making no demonstration other than to tap the ground with a parasol, it was properly held that his conduct did not amount to an assault.
“ Defendant, with no malicious motive or intent, dressed, himself in woman’s clothes, and went at*dusk to the home of plaintiff, who became frightened at his appearance, and, six weeks later, sustained a miscarriage, which she attributed to the fright. Held, that the fright, unaccompanied as it was, by any immediate physical injury, could not be made the basis of a recovery of damages for a result which could not have been contemplated by defendant.”

In the present case the plaintiff did suffer physical injuries. Her knee was bruised, slivers were run -into her left hand, and she sustained a rupture of the navel. Some days after the accident symptoms of numbness and paralysis in the left side and leg, pains in the back, difficulty and uncertainty of articulation, trouble with her vision, and with the bowels and kidneys, a relaxation of the muscles of the left side, and other symptoms, made their appearance. We think it was so clearly a question of fact for the jury as to whether the physical injury was the direct cause of the paralysis and other symptoms as not to require discussion. •

The judgment is affirmed.

Montgomery, Ostrander, Hooker, and Moore, JJ.„ concurred.