text:
    TROMBLY v. TROMBLY.
    Promissory Note — Denial of Execution — Want of Consideration — Instructions to Jury.
    Where, in an action on a promissory note, the defendant denied having signed it, or having received any consideration therefor, and further testified that, while being taught to write by plaintiff, he signed his name to several pieces of paper, which he left on plaintiff’s desk, it was held that it was error to refuse to charge the jury, as requested, that if defendant signed the note without receiving any consideration therefor, or without understanding it to be a promissory note, or if he signed his name to a blank piece of paper, and the body of the note was filled in without his knowledge or consent, defendant was not liable, and to charge merely that, if defendant signed the note, plaintiff could recover.

      Error to Wayne; Frazer, J.
    Submitted June 7, 1895.
    Decided July 9, 1895.

      Assumpsit by David Trombly against Isedor Trombly on a promissory note. From a judgment for plaintiff, defendant brings error.
    Reversed.

      George X. M. Collier, for appellant.

      B. T. Prentis, for appellee.
   Long, J.

Plaintiff sued on a promissory note of $60. Defendant pleaded the general issue, and filed an affidavit denying the execution of the note. The cause was heard on appeal in the circuit, where plaintiff had judgment.

On the trial the plaintiff testified that he loaned the defendant $60, and took his note therefor, and that at that time defendant was working for him by the month, on his farm. Defendant testified that he never signed the note in question. He further testified that he worked for the plaintiff, and, while there, that the plaintiff taught him to write his name; that he practiced' on several pieces of writing paper, and left the papers lying on plaintiff’s desk. He also denied having received at any time any money or other property from the plaintiff, or any consideration whatever for the note. The note was written on a piece of common note paper. Plaintiff admitted that he taught the defendant to write, but stated that defendant practiced with a pencil. Some papers were put in evidence, which were admitted to bear the signature of defendant, and several expert witnesses were called, some-of whom testified that the person who signed the note in question signed the other papers, while others gave it as their opinion that they were signed by a different person.

At the close of the evidence, the court was asked by counsel for defendant to charge the jury:

“3. I charge you, as matter of law, that if you believe the defendant signed such promissory note without receiving consideration therefor, or without understanding the same to be a promissory note, your verdict must be for the defendant.
“á. I charge you, as matter of law, that if you believe ' the defendant signed his name to a piece of blank paper, and the body of the promissory note in question was filled in without his knowledge or consent, or without defendant’s receiving any consideration for the same, your verdict must be for. the defendant.”

These requests were refused, and the court charged the jury substantially as follows:

“This note was signed by somebody, and it was signed in the name of the defendant. It was signed either by the defendant or by somebody else. If it was signed by the defendant, he is liable, and your verdict should be for the amount of the note and interest; if he did not sign it, 1 hen he is not liable, because it is not his paper, and he did not execute it.”

Again, the court said:

“The important question is whether this note was executed by the defendant or not, or by somebody else without his consent, because, if it was-executed by soiüebody else without the consent of the defendant, and his name signed to it without his consent, it would be a forgery, i^o you must determine this issue, and, if you find that the defendant did not execute this note, then you will fin<J for the defendant; if you find that he did sign this note, then you will find for the plaintiff.”

We think the court was in error in not giving the requests to charge as asked. The charge as given did not fully cover the questions which counsel for defendant sought to get before the jury, which theory was that, t he defendant having signed his name upon several pieces of paper while he was being taught to write, the plaintiff or some one other than defendant had written the note above his signature, in which case the plaintiff could not recover; and, again, that if defendant signed the note without receiving any consideration, or without understanding that it was a promissory note, the defendant could not be held liable. We cannot say that there was no evidence to support such claims, and the court should have given the requests. The jury were left substantially with the instruction that, if the defendant signed the note, the plaintiff could recover. The jury may have been misled by this instruction.

The judgment must be reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    GREENWOOD v. DAVIS.

    1. Logging Contract — Time for Performance — Question for Jury.
    Where a logging contract specifies no time within which it is to be performed, a reasonable time will be implied; and unless the means of determining what would be a reasonable time are afforded by the contract, or the circumstances surrounding the transaction are undisputed or conclusively proved, the question is one for the jury.
    2. Same — Abandonment of Contract.
    Plaintiff contracted on November 30th to cut and haul certain logs for defendant. Payments were to be made as the work progressed, the final amount being payable when the work should be completed and camps broken up. No time was fixed for the performance of the contract. Plaintiff began work December 8th. On February 28th, having hauled all of the timber that he had cut, amounting to about one-third of that which was within the terms of the contract, he stopped work, owing to the depth of the snow, and broke up his camp, although defendant offered him an additional sum to continue operations. On October 1st following, plaintiff called for a statement of his account, and offered to resume work under the contract, but defendant refused to permit it, and p'aintiff sued for breach of the contract. Testimony was inti od aced upon the trial tending to show that defendant owned a mill, and relied upon the logs in question to supply it with work during the summer; that hauling can be profitably done on snow only; that it is well to begin cutting in September; and also showing generally the usual seasons and methods of lumbering. Held, that it was for the jury to say whether plaintiff had abandoned the contract, and, if he had not, whether he offered to perform it within a reasonable time; the inferences from the evidence not being so plain as to justify the court in determining the question.
    3. Same — Estoppel.
    Plaintiff was not estopped to deny an abandonment by reason of the fact that defendant had sent his own men to cut the remaining timber prior to October 1st, since plaintiff may not have had reason to suppose that defendant would do this without first attempting to ascertain plaintiff’s intentions.
    4. Breach op Contract — Recoupment—Instructions.
    Where, upon the trial of an action for breach of contract, the defendant has stated that he will ask no verdict against the plaintiff under his notice of recoupment, but only that his damages be allowed to an amount sufficient to offset any damages to which plaintiff may be entitled, a statement that "defendant seems to have waived his claim for damages,” made in the course of the instructions to the jury, is not prejudicial to the defendant, where the jury are further explicitly instructed that plaintiff cannot recover if hd himself has broken the contract.
    5. Logging Contract — Breach—Loss op Profits.
    In an action for the refusal to permit plaintiff to perform a contract whereby he was to cut and haul timber for the defendant, the measure of damages is the difference between the contract price and the cost of doing the work; and the fact, that such cost would depend upon the season and the management of the business, while proper to be considered by the jury, does not render the profits so conjectural and speculative as to prevent the application of the-rule.
    Error to Delta; Stone, J.
    Submitted June 6, 1895:
    Decided July 9, 1895.

      Assumpsit by Alfred Greenwood against Charles W. Davis and Richard Mason for the breach of a logging contract. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Mead & Jennings, for appellants.

      Sawyer, Waite & Waite, for appellee.

       Rehearing denied October 1, 1895.

   Hooker, J.

On November 30,1892, tlie parties made a written contract, by which the plaintiff agreed to cut logs for the defendants. He began work December 8th, and stopped on February 28th, after cutting about one-third of the timber agreed upon. In the fall of 1893 he expressed an intention of resuming operations, but defendants declined to allow it, and cut the logs themselves. Plaintiff then brought this action, claiming damages for a breach of the contract, and defendants bring error upon a judgment for plaintiff of $500.

The first and most important question arises upon the refusal of the trial court io direct a verdict for the defendants. This involves a construction of the contract, which counsel for the defendants say was for the court, whereas the court left it to the jury. The contract was as follows:

“Said Greenwood agrees to cut, haul, and bank * * * all pine timber now being on [here follows a description of the lands], for the price of five dollars' and fifty cents per M. ft., board measure, by Scribner rule. Payments are to be made by said Davis & Mason on the last day of each month, at the rate of two dollars per M. ft. for all logs then skidded, and at the rate of one dollar and fifty cents more per M. ft. for all logs then banked on landings, — that is to say, three dollars and fifty cents per M. for all logs then so banked, — and when the work is completed, and camps broken up, Davis & Mason agree to pay in full at the above price per M. ft. * * * Said Greenwood to provide Davis & Mason with full release for all labor employed by him, to avoid labor liens.”

The contract fixed no time within which the labor was to be performed, and, under elementary principles, the circuit judge was correct in holding that the plaintiff was entitled to a reasonable time for cutting and hauling the logs. It is obvious that the contract does not contain the means of determining what would be a reasonable time, and unless the circumstances surrounding the transaction are undisputed, or conclusively proved, no error was committed in allowing the jury to pass upon that question; and the same can be said'of the question whether the plaintiff abandoned the contract.

The record shows beyond controversy that the defendants were the owners of a mill, and -relied upon the logs to supply it with work during the summer; that, in consequence of the failure to obtain them, the mill was idle during a portion of the season. It seems undisputed that the plaintiff finished hauling the logs that he had out and skidded (except a very few) before February 28th, and that he then stopped work and broke up his camp, intending to do no more before the next fall (if at all); and that, as soon as the defendants heard of it, they offered him fifty cents per thousand additional to continue, but that he said that he could not pay expenses, owing to the depth of the snow, and refused to comply with the request. He drew checks to pay his men, which were paid by the defendants. He did nothing more until October 1st, when he called for a statement of his account, and intimated an intention or willingness to- begin work again; but the defendants told him that they did not want any more to do with him, as he had not kept his agreement. On October 30th he wrote a letter offering to go to work. Defendant Mason testified that their men were in the woods at work, before the conversation of October 1st, and there is no evidence to the contrary. The record shows nothing to indicate that plaintiff communicated an intention to finish the f ollowing winter, either at .the time he quit work, or at any other time before October 1st; and, on that occasion, there is nothing to show that he protested when he was told that they would not permit him to finish the job, or that he had at that time taken, or did afterwards take, .any measures to begin work. The testimony shows that this work-cannot well be done during the summer until after fly time; that it is well to begin work in September, to get cutting done before snow falls; and that the hauling can be profitably done only upon snow. Hauling could have been done upon snow through most, if not all, of March, 1893, but there were no logs cut. There was testimony in the case showing the usual seasons and methods of lumbering, and plaintiff testifies that Mr. Brown had supervision of his camp and cutting for the defendants. If this is true, the defendants probably knew that the plaintiff’s logging operations were not progressing in a way to promise complete performance of the contract before the season for hauling should be over, and this-tends towards the inference that they were satisfied to have the plaintiff take the second season to complete it. Again, as to abandonment of the job, we cannot say that it is conclusively shown, in the face of the testimony of the plaintiff, that he intended to abandon the job. He had a balance coming to him, and the first time that he asked for it he signified an intention of completing his job. No surprise was expressed by the defendants at this, nor was he told that they supposed he had abandoned it, and that in reliance upon that understanding they had sent their own men to cut the timber. We think that both of these were questions for the jury, and that the inferences from this evidence are not so plain as to justify the court in saying that the plaintiff abandoned the contract, or that it was to be performed only by continuous work.

The brief filed by counsel for the defendants mises the question of estoppel. It does not show that it was raised upon the trial; but, if it did, we cannot say that the plaintiff had reason to suppose that the defendants would commence work before October 1st without an attempt to ascertain plaintiff’s intentions. We think the intentions of the plaintiff were material, as they bear upon the question of abandonment, though they might not be conclusive upon that of estoppel, if all of the elements of an estoppel were present..

Defendants gave notice of recoupment. This was based upon the claim that the plaintiff abandoned the contract. On the trial, they aslsed no verdict against the plaintiff, but only that their damages be allowed to an amount sufficient to offset any damages that the plaintiff might be entitled to. After instructing the jury as to the right to recoup, the court added: “But all this, perhaps, will not be necessary, as the defendants seem to have ivaived their claim for damages on their part.” This remark followed a full discussion of the defendant’s right to recoup, of which they cannot reasonably complain, and was apparently intended to apply to the earnings of the mill as a measure of damages. There could be no recoupment unless the jury found that the plaintiff broke the contract; and, as the court explicitly instructed the jury that he could not recover any sum if he did so, there was no occasion to discuss the question of recoupment after defendants had signified their intention to ask' no afirma,tive relief.

It is further contended that the damages were speculative, especially in the light of the statement that plaintiff lost money the first season by reason of the deep snow. There was testimony tending to show that the work could "have been done for $3.50 to $4 per thousand feet, and the difference between that sum and the contract price was claimed to be the measure of damages. This is the usual rule, Mueller v. Mineral Spring Co., 88 Mich. 390. In other words, the plaintiff would be entitled to the contract price, less the cost of doing the work, which cost was susceptible of proof by the evidence of experts acquainted with the business and the cost of such work. This is admitted to be the general rule; but it is said that the court should have found the profits conjectural, uncertain, and contingent, and therefore not a proper basis of recovery. This claim is based upon the eAddence that the cost of such work would depend upon the management and the season, which is said to have been bad. These were proper subjects to be considered by the jury; but, unless we are to call profits conjectural and speculative whenever a defendant can show any element of uncertainty, we cannot accede to the suggestion that the court should have disposed of the question. Profits were anticipated as the natural result of the contract. Such profits can be determined by deducting the cost from the contract price, and we think that the cost was susceptible of proof with reasonable certainty. Leonard v. Beaudry, 68 Mich. 320; Atkinson v. Morse, 63 Mich. 276.

We find no error in the record, and the judgment must be affirmed.

The other Justices concurred.


text:
    NATIONAL HOME BUILDING & LOAN ASSOCIATION v. DWELLING HOUSE INSURANCE CO.

    Eire Insurance — Action on Policy — Appraisal as Condition Precedent.
    Under a Michigan standard fire-insurance policy, providing that, in case of disagreement as to the amount of loss, the same shall be ascertained by appraisers, whose award shall be prima faeie evidence of the amount of such loss; that the loss shall not become payable until 60 days after notice and proofs of loss have been received, “including an award by appraisers when appraisal has been required;” and that no suit on the policy shall be sustainable until after full compliance by the insured with all of -the requirements of the policy, — an appraisal is a condition precedent to suit only in case a demand therefor has been made; and where proofs of loss have been seasonably furnished, and no appraisal has been demanded for nine months after the fire, suit is properly brought.

      Error to Muskegon; Russell, J.
    Submitted June 13, 1895.
    Decided July 9, 1895.

      Assumpsit by the National Home Building & Loan Association against the Dwelling House Insurance Company upon a fire policy. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Brown & Lovelace, for appellant.

      Bunker & Carpenter, for appellee.

       Rehearing denied December 24, 1895.

   Hooker, J.

The only question in this cause is whether the action was prematurely brought upon a policy of insurance, no steps having been taken by either party to require an appraisal. Counsel for the defendant assert that the company offered to pay $750, while the plaintiff claimed $900 or more, and that this constituted a disagreement as to the amount of the loss, and that in such case appraisal was a condition precedent to bringing-action upon the policy.

The provisions of the policy involved in this contention are as follows:

“In the event of any disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire. The appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall, submit their differences to the umpire; and the award, in writing, of any two, shall be prima facie evidence of the amount of such loss.
“The loss shall not become payable until 60 days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received b'v this company, including an award by appraisers when appraisal has been required.
“No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within 12 months next after the fire.”

It is claimed that this amounts to an unequivocal agreement that, when controversy arises over the amount of the loss, that matter shall be submitted to appraisers before action shall be commenced, and that such is the method for determining that question, subject to appeal to a jury, if desired; that, if the insured is not content to accept the insurer’s valuation, he may and must invoice the aid of the tribunal having original jurisdiction of that question, as he would in any other case or controversy, the only difference being that in this case it is a board of appraisers, while in ordinary matters it is a court of competent jurisdiction, to which he must appeal; and if he does not do so, and the question is raised, he must fail.

Numerous cases hold such provisions valid conditions precedent. We cite in support of this proposition the following cases from the brief of counsel. Chippewa Lumber Co. v. Insurance Co., 80 Mich. 116; Morley v. Insurance Co., 85 Mich. 217; Guthat v. Gow, 95 Mich. 527; Hanley v. Walker, 79 Mich. 607; Gasser v. Sun Fire Office, 42 Minn. 315; Mosness v. Insurance Co., 50 Minn. 341.

The cases of Hanley v. Walker and Guthat v. Gow arose upon contracts for building, and in one case payment was to be made upon architect’s certificates. It was held that they were prerequisites to recovery. In the other his decision was held to be conclusive, in the absence of fraud.

The last two cases cited closely resemble the present case, and fully sustain defendant’s contention, and unequivocally hold the appraisal to be a condition precedent. The case of Gasser v. Sun Fire Office arose upon a policy which provided for an award in case of disagreement, upon the written request of cither party. It further provided that no suit or action upon the policy should be sustainable until after an award was obtained. The supreme court of Minnesota held this to be a condition precedent; in effect saying that in case of disagreement the insured must make a written request for appraisers before he could bring his action, unless such award was waived, refused, or prevented by the company. The case of Mosness v. Insurance Co. involved a policy like that in the present case, and the court followed the holding in the case of Gasser v. Sum Fire Office. The Gasser case was substantially like the case of Nurney v. Insurance Co., 63 Mich. 633. The Mosness case is like the one before us. The Minnesota court took a different view of the question from that previously expressed by this court in the Nurney case. The effect of the decision in the Nurney case was to make the request for appraisers optional. It was said not to be imperative unless upon written request, and, no request having been made, the agreement not to sue became inoperative. This seems to have been the view taken of this question by the Federal Supreme Court. Hamilton v. Insurance Co., 136 U. S. 255. See, also, Kahnweiler v. Insurance Co., 57 Fed. 562, where a distinction is made between such a policy and one where there is no such qualification as that providing for a written request. This distinction was recognized by Mr. Justice Grant in a discussion of the Nurney case in the case of Chippewa Lumber Co. v. Insurance Co., 80 Mich. 122.

Whether this policy before us makes an award an absolute condition precedent, or one' conditiqned upon a demand for it, is the question before us, and it depends upon a construction of the policy. The policy is the standard Michigan policy, and these provisions have been before the court twice, though, in neither case has the question before us been directly raised. The earlier of these is the case of Zimeriski v. Insurance Co., 91 Mich. 600, where a delay of 57 days after proofs of loss before service of a demand for appraisers was held, under the circumstances of that case, to be a waiver of the right to demand appraisers. This would seem to imply that tbe stipulations of the policy do not amount to an absolute condition precedent.

Again, in the case of Brock v. Insurance Co., 102 Mich. 591, the present Chief Justice said:

“This provision makes such appraisal, ‘when required,’ a condition precedent to the right to sue. The defendant has a reasonable time within the 60 days after proofs of loss have been furnished within which to move with respect to the ascertainment or estimate of the loss. Had the time elapsed, and no move been made in that direction, the plamtiff ivould undoubtedly have had the right to bring suit.”

In that case, however, an appraisal had been required.

The standard policy makes the loss payable in 60 days after notice and proof, which must include an award “when appraisal has been required.” We think this equivalent to the expression “has been requested,” and, taken in connection with the provision in relation to action, is subject to the same construction as that given in the Nurney case; and this is in harmony with views heretofore expressed by the court. No appraisal having been demanded during a period of nine months after the fire, although proofs of loss were seasonably furnished, the plaintiff' was warranted in bringing his action.

The judgment must be reversed, and a new trial ordered.

The other Justices concurred.


author: Montgomery, J.

text:
    HOUSE v. TURNER.
    1. Replevin — Goods Seized on Execution — Parties.
    Replevin will not lie against a judgment creditor for property seized on execution, and placed by the officer in the custody of a third party, although the levy was made by direction of the creditor.

      2. Appeal prom Justice’s Court — Costs at Circuit.
    Where a judgment for the plaintiff in a replevin suit that had been appealed from justice’s court was reversed in the Supreme Court on the ground that the defendant was not in possession of the property at the time of the commencement of suit, the costs of the defendant for trial at the circuit were limited to his actual disbursements, it appearing that such defense had not been interposed before the justice.
    Error to Kalamazoo; Buck, J.
    Submitted June 12, 1895.
    Decided July 9, 1895.
    Replevin by Manfred House against Andrew J. Turner and Thomas E. Himebaugh. . From a judgment for plaintiff, defendants bring error.
    Reversed.

      J. R. Cropsey, for appellants.

      Alfred S. Frost, for appellee.
   Montgomery, J.

This is an action of replevin. The defendants held a judgment against the plaintiff, amounting to about $35, and caused an execution to be issued, and placed in the hands of one Charles A. Merrell, a deputy sheriff, which execution was by him levied upon the property herein involved. A writ of replevin was sued out and directed against these defendants jointly. There is a finding that the property was seized by the direction of these defendants. There is no finding that the property was in the custody of defendants, or under their control. The evidence is distinctly the other way,— that when the chattels were seized they were by the sheriff placed in a barn controlled by a stranger, with instructions to deliver them up only on an order from him, or on legal process. The sole question presented is whether the action is properly planted, or whether i.t should have been brought against the officer.

Replevin is a possessory action, and does not lie against one not in possession of the goods at the time demand is made or the suit is begun. See Wells, Repl. § 134. And it is generally held that the possession of an officer who has seized goods on process in his hands is not to he considered tire possession of the creditor in the writ, and that replevin does not lie against the creditor. See Wells, Repl. § 142, and cases cited. It was held in McMillan v. Larned, 41 Mich. 521, that under the circumstances of that case the plaintiff in execution was a proper party. It appeared in that case that the property was taken and placed in the barn of defendant by the officer. These facts distinguish that case from the present. In the present case there was no actual or constructive possession by the defendants.

The judgment will be reversed, and a judgment entered here for defendants, but, as they are not entitled to the custody of the goods, no return of the property will be ordered; and, as this defense was not interposed before a justice, we think the costs for the trial in the court below should be limited to the defendants’ actual disbursements. With this limitation, defendants will recover costs of both courts.

McGrath, C. J., Long and Grant, JJ., concurred. Hooker, J., did not sit.


text:
    MACKIE v. CITY OF WEST BAY CITY.
    1. Defective Sidewalk — Contributory Negligence.
    Where, in an action for injuries received by stepping into a bole in a sidewalk, it appears that the accident occurred in broad daylight, that the defect was plainly visible, and that plaintiff had been accustomed to pass the place at least once a week, and had never noticed the defect, which according to her theory was of long standing, the question of her contributory negligence should be submitted to the jury, although she further testifies that she was exercising ordinary care and caution, and walking quietly along the street.

      2. Municipal Corporations — Personal Injuries — Presentation of Claim to Council.
    A charter provision to the effect that no action shall be sustainable upon any claim against the city unless an itemized statement thereof, duly verified, shall have first been presented to the council for allowance, has no application to a claim for personal injuries resulting'from a defective highway. Lay v. City of Adrian, 75 Mich. 438, followed.
    Error to Bay; Maxwell, J.
    Submitted June 13, 1895.
    Decided July 9, 1895.
    Case by Annie Mackie against the city of West Bay City for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      G. H. Francis, for appellant.

      Lee E. Joslyn, for appellee.
   Hooker, J.

The plaintiff was injured by a fall upon defendant’s sidewalk, occasioned by stepping into a hole in the walk. This hole consisted of an opening caused by the breaking of a large piece from one of the boards. It was four or five inches wide, and somewhat longer. The court directed a verdict for the plaintiff, against the request of the defendant’s counsel, who claimed that at the least the question of contributory negligence was for the jury. The court said that, inasmuch as the plaintiff’s declaration alleged that she was passing along the street in a careful manner, he should refuse to instruct the jury, as requested, that she was guilty of contributory negligence.

We think that the defendant was not entitled to have this request given, for the most that can be said is that contributory negligence was a question for the jury. We think, however, that this question should have been left to the jury; for, while the plaintiff testified that she was “walking along the street, exercising ordinary care and caution, walking along just quietly, as women ordinarily walk on their way to church, and -her foot went down through a hole in the hoard,” etc., there was testimony-showing that this occurred in broad daylight, and that she passed the place every Sunday, and had never noticed this defect; while by other witnesses she proved it to have been of long standing. Unless some excuse is given for a failure to see a large and plainly visible hole in a sidewalk in daylight, there is ground for the claim that the person injured is heedless; and it would be competent for a jury so to find, although the defendant offered no further evidence of negligence. She alleged in her declaration that she exercised proper care, i. e., was not negligent; yet she shows circumstances which are consistent with a want of care. The most that can be said for her testimony is that it authorized her to gO' to the jury upon that question. It was not sufficient to justify a verdict by direction.

It is unnecessary to discuss the other questions in the case, except to say that under the charter it was unnecessary for plaintiff to file a verified claim with the council before bringing action. Lay v. City of Adrian, 75 Mich. 438.

The judgment must be reversed, and a new trial ordered.

The other Justices concurred.

       Act No. 307, tit, 4, § 17, Local Acts 1885.


author: Long, J.

text:
    HAMMOND v. WELTON.
    Deed — Undue Influence.
    Influence obtained by arguments addressed to one’s understanding, or by mere appeal to his convictions of right doing, does not constitute undue influence in a legal sense. So held with reference to a deed executed by a mother to her daughter.

      Appeal from Kent; Adsit, J.
    Submitted June 19, 1895.
    Decided July 9, 1895.
    Bill by Horace C. Hammond and others against Mary J. Welton and John Welton to set aside a deed. From a decree dismissing the bill, - complainants appeal.
    Affirmed.

      Fallass & Swarhout, for complainants.

      Wolcott & Ward, for defendants.
   Long, J.

The bill in this case is filed to set aside a deed from Permelia Walden to Mary J. Welton upon two grounds, to wit, mental incapacity and undue influence. The deed was made December 17, 1891. Permelia Walden died in October, 1893, nearly twn years after the deed was made. She was the mother of complainants Horace C. Hammond and Sylvia'S. Van Gorder and of defendant Mary J. Welton, and the grandmother of complainants Ella I. Bechtel and Addie M. Bechtel. John Welton is the husband of Mary J. Welton. The court below, after hearing the testimony, which was taken in open court, dismissed the complainants’ bill, with costs.

The deed conveyed 40 acres of land of the value of about $2,000. It appears that, for many years prior to the death of her mother, the defendant Mary J. Welton and her mother lived together upon this land. Mrs. Permelia Walden obtained title under the will of her second husband, one Lodowick Walden, the stepfather of Horace C. Hammond, Mrs. Van Gorder, and Mary J. Welton. At the time the deed in controversy was executed, Mrs. Walden was about 80 years of age.

The whole controversy is an unfortunate family quarrel, and it would be of no benefit to the parties or to the profession to set out the testimony at length here. It is apparent that the aged mother intended that her daughter Mary should have -the property. Mary had lived with her for many years as a member of her immediate family, and cared for her in her sickness; and, for nearly two years after the deed was made, the parties lived together, during which time Mrs. Walden signified no disposition to have the deed set aside. The record wholly fails to disclose any legal reason for setting it aside upon the ground of undue influence or of incompetency, and we think the testimony abundantly shows mental competency sufficient to characterize her act in its execution as valid; and the influence obtained by arguments addressed to her understanding or by mere appeal to her convictions of right doing cannot he properly termed undue influence. Schofield v. Walker, 58 Mich. 96. We were satisfied, upon the argument of the case, that no such case had been made, upon either ground, as would warrant this court in setting aside the deed. Upon a more careful examination of the record, our convictions have been strengthened that the court below was correct in the conclusions thus reached.

The decree below must be affirmed, with costs of both courts in favor of defendants.

McGrath, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit.


text:
    HARRIS v. HARRIS.
    Parent and Child — Action for Services — Family Relations.
    A woman cannot recover from her father-in-law for services rendered while a member of his family, in the absence of an express agreement to pay for such services.
    Error to Calhoun; Smith, J.
    Submitted June 13, 1895.
    Decided July 9, 1895.

      Assumpsit by Melissa E. Harris against James W. Harris for services. From a judgment for plaintiff, defendant brings error.
    Reversed.

      John C. Patterson, for appellant.

      L. B. Tompkins (H. E. Winsor, of counsel), for appellee.
   Hooker, J.

In this cause the testimony of the plaintiff shows that her husband sent her from the State of Louisiana to the home of'his father, in this State, with a letter requesting him to send money to enable her said husband to come to Michigan, and to redeem certain property which he had pawned to get money to send her to Michigan. The father complied, sending $96 for the purpose, and the plaintiff’s husband came to Michigan, and from that time until his death resided in his father’s family, both plaintiff and himself rendering service upon the farm and in the household. The plaintiff remained some time after this death, until, relations becoming strained, she went away, either of her own volition or at the request of the father. Beyond the fact that at times She was requested by him to do things about the place, and the value and extent of services rendered, there is no evidence of a contract to pay for such services, which appear to have been voluntarily rendered. She testified that she knew of no agreement or understanding with the father that she should receive pay. She stated further that soon after her husband’s funeral he said to her that she could remain there just as she had until she could get married. This action is brought against the father to recover pay for her services.

The court instructed the jury that, if they should find that family relations existed, they must render a verdict for the defendant, as no express promise was shown. The circuit judge was asked to direct a verdict for the defendant, but refused to do so. In this, we think, he erred. The evidence showed conclusively the existence of the family relation, and there was nothing authorizing a recovery by the plaintiff.

We are therefore constrained to reverse the judgment, and there is no occasion for a new trial. It will be ordered accordingly.

The other Justices concurred.


author: McGrath, C. J.

text:
    GRAND TRUNK RAILWAY CO. v. WAYNE CIRCUIT JUDGE.
    Foreign Corporations — Service or Process — Railroad Companies.
    There is no statute in Michigan providing for the service of process upon a foreign corporation .where the cause of action did not accrue within the State. 3 How. Stat. \ 8147, which provides that in an action against any railroad company “ in this State ” process may be served upon a station agent or a ticket agent of the company, is supplemental to section 8137, and applies to domestic corporations only.

      Mandamus by the Grand Trunk Railway Company of Canada to compel George S. Hoismer, circuit judge of Wayne county, to dismiss a suit against relator.
    Submitted June 18, 1895.
    Granted July 9, 1895.

      Geer & Williams, for relator.

      Maybury & Lucking, for respondent.
   McGrath, C. J.

Suit is brought against relator in the Wayne circuit by a resident of this State, upon a cause of action which accrued in Canada. The defendant (relator here) appeared specially, and moved the court “to set aside and quas'h the service and dismiss the suit, for the reason that it was a foreign corporation, not organized under the laws of the State, and that plaintiff’s alleged cause of action did not accrue within the State, and that no lawful service of the declaration has been had upon it.” The circuit judge denied the motion, and defendant in this suit applies for a mandamus to compel the circuit judge to dismiss the suit.

The only question presented is whether the statutes provide for service of process in this class of cases. 2 How. Stat. § 8145, provides for service upon corporations not organized under the laws of this State in all cases where the cause of action accrues within the State. Respondent insists, however, that relator is “in this State,” under 3 How. Stat. § 8147. 3 How. Stat! § 8137, is section 3, chap. 1.16, Rev. Stat. 1846, as amended by Act No. 123, Pub. Acts 1877, and by Act No. 242, Pub. Acts 1887. It has been' repeatedly held that section 8137 applies only to domestic corporations. Newell v. Railway Co., 19 Mich. 335; Watson v. Wayne Circuit Judge, 24 Mich. 38; Reath v. Telegraph Co., 89 Mich. 22. In the last-named case it is said that suits against foreign corporations are authorized and regulated by sections 8145 and 8146. Section 8147 provides that such service shall be deemed as good and effectual as if made on the officers, stockholders, or members, or either of them, of said company. This section was enacted in 1849. The only statutory provision for service on officers, stockholders, or members of railway corporations' is section 8137. It is clear that section 8147 must be regarded as supplementing section 8137, and was intended to facilitate service upon domestic corporations.

The writ must issue as prayed.

Grant, Montgomery, and Hooker, JJ., concurred. Long, J., did not sit.


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    PEOPLE v. LOOMIS.
    1. Seduction — Sham Marriage — Common Law of Foreign Country — Presumption—Evidence.
    In a prosecution for seduction alleged to have been accomplished by means of a sham marriage, it appeared that the parties, who were competent to enter into the marriage contract, went to Canada, and there agreed, in the presence of a person whom the prosecutrix then believed to be a minister, to take each other as husband and wife, and that they thereafter cohabited as such. Held:

    (1) That these facts would have been sufficient to establish a valid common-law marriage in this State, and, in the absence of evidence to the contrary, would be presumed to have constituted a valid marriage under the laws of Canada.
    (2) That proof of additional, positive requirements of the Canadian law would no.t alone defeat this presumption, but a non-compliance therewith must be shown.
    (3) That such presumption was not rebutted by evidence of respondent’s subsequent assertions that the marriage was a mere sham.
    (4) That, the presumption of a valid marriage existing, the prosecution muse fail.
    2. Public Record — Proof of Non-existence.
    The non-existence of a marriage record is not shown by the testimony of a witness to the effect that she went to one whom she supposed to be a magistrate, and that he instituted a search, and told her there was no such record.
    3. Evidence — Foreign Statutes.
    Testimony tending to prove the laws of a foreign country is improperly admitted where the means of knowledge of the witness are not shown.
    Error to recorder’s court of Detroit; Chapin, J.
    Submitted June 20, 1895.
    Decided July 9, 1895.
    Joseph W. Loomis was convicted of seduction, and sentenced to imprisonment in the state prison at Jackson for five years.
    Judgment reversed.

      Frank C. Moriarty (George X. M. Collier, of counsel), for appellant.

      Fred A. Maynard, Attorney General, Allan E. Frazer, Prosecuting Attorney, and Ormond F. Hunt, Assistant Prosecuting Attorney, for the people.
   Long, J.

The information in this case charges the respondent with having seduced and debauched one Minnie Webb on or about the 1st day of June, 1893. The evidence on the part of the people tended to show that Minnie Webb was invited by respondent, in June, 1893, to go over to Windsor with him and be married; that they went before a man whom she at the time supposed to be a minister, and a ceremony was performed which she supposed at the time was regular and proper; that respondent told her that he did not have enough money to go to housekeeping, and that, as she'was already living with his mother, she had better continue doing so, and say nothing about the marriage, as his mother might object to the marriage, and that in the fall they would go to housekeeping; that Miss Webb .stayed at the house of respondent’s mother the same after marriage as before; that she was not introduced to any one as his wife, but that they cohabited together; that the following November respondent asked her to steal some money from her father, and promised that if she would do so he would go to Chicago and start a saloon and gambling rooms. This Miss Webb refused to do., and respondent then told her she was not his wife. Miss Webb says she thought at first that respondent was in a fit of anger; but afterwards he went on to state how he had taken her over to Windsor, and how hé 'had a friend of his perform this ceremony, and that he had so carefully covered up his tracks that she would never be able to uncover them, and that she would never be able to do anything with him. She then contiued:

“Then I threatened to have him arrested, and he says, Well, if you have me arrested, the judge in the courthouse will say, “that is a damn shrewd trick,” ’ his taking me over to Windsor and having this ceremony performed. I would not have had intercourse with him if I had not .supposed I was married. I was induced to stay with him, sleep with him, because I supposed I was married to him. I did not know until November. I am 23 years old. At the time the ceremony was performed I was not a married woman.”

Afterwards she went over to Windsor to see if there was any record of the marriage. She testified, on redirect examination, as follows:

“I went over to search the records in Windsor to sec if we were married. The justice sent me over, and T saw I guess it was a magistrate, and he had the records searched, and he sent around to the different ministers .to find out. There was no record of marriage there.”

■On recross-examination she testified:

“I don’t know whether there was any record kept or not of that marriage. I suppose there could not have been; we could not find any. We mutually agreed to become husband and wife in the presence of this other ■party, and I was very ignorant of the laws of Canada. The laws of Canada require a marriage record.”

On redirect examination she was asked by the prosecuting attorney:

“Do they have to get a license in Canada?
“A: Yes.”

This was objected to, on the ground that the witness was not shown to be competent to testify as to what the laws of Canada are. The .objection was overruled.

The theory of the prosecution was that the respondent induced the prosecutrix to have sexual intercourse with Mm by means of fraud. The prosecutrix testified that a marriage ceremony was performed, and that the parties thereto agreed to take each other as husband and wife. The parties were competent to enter into the contract, and apparently did contract with each other to be husband and wife. Had .such .a contract taken place in this State, followed by cohabitation as husband and wife,, the marriage would have been valid. Hutchins v. Kimmell 31 Mich. 126; Peet v. Peet, 52 Mich. 464. The marriage was presumptively valid in Canada, A marriage ceremony was performed, and the parties consented and agreed to the contract; and it has been held in this State that the common law as it exists among us will be presumed to prevail in a foreign country, in the absence of proof to the contrary. In re High, 2 Doug. (Mich.) 515; Crane v. Hardy, 1 Mich. 56.

The only remaining question is whether there was any proof in this case of local law or custom in Canada restrictive of this mode of contracting a valid marriage. It may be true that the prosecutrix made a search for a record of the marriage, and was unable to find such record. The testimony falls far short of showing that such a record does not exist. The testimony upon that question was mostly hearsay. All that the prosecutrix claimed to know of it was what some one told her, whom she supposed to be a. magistrate there. But it is said that her testimony showed that the laws of Canada required a marriage license. It does not appear that no license was in fact obtained by the respondent, and, moreover, the prosecutrix was not shown to have any knowledge or means of knowledge as to what the laws of Canada on the subject are. There was nothing in the case that would warrant the court or jury in saying that the marriage in Canada was invalid. While the conduct of the respondent towards the prosecutrix was most wanton and cruel, yet his statement to her that there never was a valid marriage would not of itself prove the fact that no marriage contract was entered into, and would not rebut the presumption of a valid marriage. The presumption of a. valid marriage existing, the respondent could not be held guilty of seducing and debauching the prosecutrix.

The judgment of conviction must be reversed, and a new trial ordered.

McGrath, C. J., Grant and Montgomery, JJ., concurred with Long, J. Hooker, J,, concurred in the result.


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    HOGAN v. WAYNE CIRCUIT JUDGE.
    Interpleader — Injunction—Courts of Co-ordinate Jurisdiction.
    Where an insurance company has been garnished in the circuit court of one county for moneys admitted to be due under a policy, and has subsequently been sued by an assignee of the insured in the circuit court of another county, an injunction restraining the parties from prosecuting their several suits may properly issue upon a bill of interpleader filed by the company upon the equity side of the court in which suit was first brought, and which thereby obtained jurisdiction of the question in controversy in both cases, namely, the ownership of the fund.

      Mandamus by James Hogan to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate an order granting an injunction.
    Submitted April 2, 1895.
    Denied July 13, 1895.

      Robert Parker and J. B. Pouch, for relator.

      James Swan, for respondent.
   McGrath, C. J.

On June 25, 1894, a loss occurred under a fire policy issued by the New Hampshire Fire Insurance Company to one James H. Coonan, a resident of the city of Detroit, upon property situate in said city. Proofs of loss were furnished July 3, 1894. On July 28, 1894, the B. Strok Brewing Company brought, suit against Coonan in the Wayne circuit court, "and garnished the insurance company. On July 31, 1894, Elliott & Co. brought suit in the Wayne circuit' court against Coonan, and garnished the insurance company. On'the 6th day of August, 1894, Robert Parker, as attorney for James Hogan, verbally notified the agent of the insurance company that Coonan had, on July 24,1894, assigned his claim under said policy to James Hogan. On August 21, 1894, the insurance company disclosed, denying any indebtedness to Coonan. Afterwards, on October 11, 1894, the garnishee defendant filed amended disclosures, setting up the facts, admitting liability under the policy, but setting up the aforesaid notice of assignment. Pending these proceedings, on September 20, 1894, relator, as assignee of the claim under said policy, commenced suit against the insurance company in the circuit court for the county of Ionia. Afterwards, on February 27, 1895, the insurance company filed its bill in the. circuit court for the county of Wayne, in chancery, making the plaintiffs in the garnishment proceedings aforesaid and the said James Hogan parties, praying that the defendants may be decreed to interplead, and that they may be enjoined from the prosecution of their several suits against the company. An injunction was granted. Relator asks for a mandamus to compel the vacation of the order granting the injunction.

The injunction runs against the person of James Hogan, rather than the circuit court for the county of Ionia, and it may be carried into effect by proceedings in contempt instituted in the circuit court for the county of Wayne, in chancery. The insurance company seeks to restrain, not only relator from proceeding in the circuit court for the county of Ionia, but the plaintiffs in garnishment from proceeding in the circuit court for the county of Wayne. If the company had filed its bill in the Ionia circuit, the plaintiffs in garnishment might make the same contention that is here made on behalf of relator. Any plea that might be interposed in the suit at law in the Ionia circuit would involve the determination of the same question that is involved in the proceedings in garnishment in the Wayne circuit,, and that court first obtained jurisdiction of that question. The bill sets up that relator was pressing the suit in Ionia county to trial, and the petition here insists upon the right to an immediate trial of such suit.

In Maclean v. Wayne Circuit Judge, 52 Mich. 257, a bill was filed in the Wayne circuit to set aside a judgment obtained in the superior court of the city of Detroit. Dodge v. Northrop, 85 Mich. 243, was a similar proceeding. In Barnum Wire & Iron Works v. Wayne Circuit Judge, 59 Mich. 272, a suit was pending in the .superior court of Detroit when the assignment was made, and it was sought to enjoin the prosecution of that suit. In Mabley v. Judge of Superior Court, 41 Mich. 31, judgment had been obtained in the superior court, a new trial had been granted conditionally, and the cause was assigned for trial for a day certain. Three days before the day set, defendant filed a bill in the United States circuit court, and obtained an ex parte order restraining plaintiff from proceeding. The order was served on the day before the day set for the trial, and a notice of the proceeding was filed in the superior court. The judge of the superior court thereupon vacated his conditional order, and reinstated the judgment.’ A mandamus was prayed for to compel the judge of the superior court to vacate said order, which was refused.

Each of these cases was decided upon the merits. Here, two parties are claiming the fund, and each has planted its suit, — one in the Wayne circuit, and the other in the Ionia circuit. A bill of this character, filed after suit brought, necessarily involves a restraint upon existing suits. The company acknowledges its liability upon the policy for the amount of the loss, but insists that it cannot safely pay to either claimant until the disputed question’ is adjudicated in some proceeding which shall bind both. It has filed its bill upon the equity side of the court first obtaining jurisdiction of the question sought to be determined, and we think properly so. I High, Inj. § 53. See, also, sections 45 and 46.

The writ will therefore be denied.

The other Justices concurred.


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    COREY v. SMALLEY.

    1. Recording Laws — Execution Levy— Constructive Notice.
    Under 3 How. Stat. § 6173, providing that no levy by execution on real estate shall be valid against bona fide conveyances made subsequent to such levy until notice thereof shall have been filed with the register of deeds, but that such levy shall, from the time of filing said notice, be a lien upon the premises, which shall be valid against all prior grantees of whose claims the party interested shall not have actual or constructive notice, a lien thus obtained will not take priority over the rights of one in actual possession under an unrecorded contract of purchase from the execution debtor, since such possession is constructive notice of his rights; nor will the filing of such notice of levy operate as notice to the vendee so as to invalidate payments thereafter made by him.
    3. Same.
    After A. had sold land to B. on contract, and assigned his interest under such contract to C., neither the contract nor the assignment being of record, an execution against A. was levied upon the premises, of which B.’s tenant was in possession, proper notice of the levy being filed with the register of deeds. B. afterwards assigned to complainant, who, in ignorance of the levy, paid the balance of the purchase price to C., took an assignment from him, and obtained a deed from A. Held, that the statute (section 6173; would not avail the execution creditor, and that a sale under the levy was properly enjoined, even though the assignment from A. to C. may have been made with fraudulent intent.

      Appeal from Wayne; Kinne, J., presiding.
    Submitted May 2, 1895.
    Decided July 13, 1895.
    Bill by Lorenzo Corey against Herbert Smalley and another to enjoin an execution sale. Complainant. appeals from a decree dismissing his bill.
    Reversed.

      Moore & Moore, for complainant.

      S. W. Stewart, for defendants.

       Rehearing denied December 34, 1895.

   Hooker, J.

Berlin, being the owner of the premises in controversy, sold the same upon land contract to Charlton on June 23, 1891, for $3,500. Charlton took immediate possession, and continued in possession until December 4, 1891, when he rented the premises to Andrioh, who took immediate possession: On February 8 or 9, 1892, Charlton assigned his contract to Corey. Andrich continued in possession as tenant of Charlton and Corey until October, 1892. By arrangement with Charlton, he paid some, if not all, of his rent by selling groceries to Berlin, for which Charlton was to have credit. On December 14, 1891, the record title of the premises was in Berlin. Neither the land contract nor assignment was recorded. On February 18, 1892, Berlin deeded the premises to Oorey upon the delivery to him o>f Corey's check, payable to Mrs. Burroughs, Berlin's sister, and a.n assignment to Oorey by her of the duplicate contract held by Berlin, which it is claimed was sold and assigned to her by Berlin in part payment of an exist ing debt on August 31, 1891. Meantime, and on December 14, 1891, the defendants had caused a levy of execution to be made upon these premises as the property of Berlin, and complainant was ignorant of this until after his payment. He thereupon filed the bill in this cause to enjoin the sale, and appeals from a decree dismissing it. The evidence indicates that the transfer to Mrs. Burroughs was not in good faith, and it is probable that the circuit judge so found. Oorey doubtless paid in ignoranee that there was a levy, and in ignorance of any attempt at fraudulent concealment by Berlin.

By the contract between Berlin and Charlton, the latter became owner of an equitable interest in the land, and incurred an obligation to Berlin to pay the consideration. Berlin thereby acquired a chose in action against Charlton, and hel'd the legal title to the land as security. Corey purchased the interest of Charlton, and became entitled to all of his rights. He assumed the obligation of Charlton to pay the consideration, and had a right to the deed of the premises upon full performance of the contract. By the assignment of the land contract to Mrs. Burroughs, Berlin parted with his claim against Charlton, and Mrs. Burroughs acquired the right to collect the same as assignee. Although Berlin thereby parted with his entire interest in the land, he held the legal title, but this title he held in trust for Charlton and Mrs. Burroughs, either of whom, by proceedings in chancery, might compel him to dispose of it in furtherance of the trust, — e. g., upon payment to Mrs. Burroughs the complainant could compel Berlin to convey to him, while in case of non-payment Mrs. Burroughs might sell the premises upon proceedings to foreclose her lieu. It is plain that, after the sale to Burroughs, Berlin had no interest in the premises which he could avail himself of. If the defendants can establish a defense, it must rest upon the following facts, viz.: (1) That the transfer to Burroughs was fraudulent as against them, and therefore void; (2) that neither the contract nor any of the assignments were recorded.

Under the early decisions of this State, the filing of a certificate of levy was held not to be notice to a subsequent purchaser. Columbia Bank v. Jacobs, 10 Mich. 349; Millar v. Babcock, 25 Mich. 137; Campau v. Barnard, Id. 381; French v. De Bow, 38 Mich. 708. But under 2 How. Stat. § 6173, such certificate, when recorded, became constructive notice to subsequent purchasers in good faith and for a valuable consideration whose conveyance was recorded prior to the sale. Atwood v. Bearss, 45 Mich. 469; Drake v. McLean, 47 Mich. 102. Under these decisions, the record of an execution sale to a dona fide purchaser for value gives the purchaser priority of right over a person claiming under a prior unrecorded conveyance. Again, Act No. 227 of the Public Acts of 1889 provides that the filing of a proper notice of levy with the register of deeds shall be a lien, etc., and that such lien “shall, from the filing of such notice, be valid against all prior grantees and mortgagees of whose claims the party interested shall not have actual nor constructive notice.” This statute would be sufficient support for the defendants’ claim, were it not for the fact that the complainant’s assignor, -Charlton, was in actual possession of the premises, either personally or by tenant, at the time of the levy. The premises consisted of a .store, and the possession was plain, and was sufficient to have put the defendants upon inquiry. One who purchases land occupied by another than the grantor is chargeable with notice of the rights of the occupant. Possession of land by a contract purchaser is constructive notice of his rights. Woodward v. Clark, 15 Mich 104; Russell v. Sweezey, 22 Mich. 235; Farwell v. Johnston, 34 Mich. 342; Dunks v. Fuller, 32 Mich. 242; McKee v. Wilcox, 11 Mich. 358; Allen v. Cadwell, 55 Mich. 8; Hommel v. Devinney, 39 Mich. 523; Seager v. Cooley, 44 Mich. 14; Weisberger v. Wisner, 55 Mich. 246; Michie v. Ellair, 54 Mich. 518; Stevens v. Castel, 63 Mich. 111; Moore v. Kenockee Tp., 75 Mich. 332; Schweiss v. Woodruff, 73 Mich. 473; Lambert v. Weber, 83 Mich. 395.

From these cases it is plain that the statute cited by counsel (Pub. Acts 1889, Act No. 227) will not justify the claim that the levy constituted a lien as against the rights of Corey. So far as any payments that were made previous to the levy are concerned, the levy is ineffective. Can the same be said of the later payment? This would seem to depend upon the questions (1) whether Berlin had any interest subject to ievy; (2) if he had, whether the record of the levy was notice to Corey that such interest had been 'subjected to legal process. If it can be said from the proof that the assignment to Mrs. Burroughs was not fraudulent, and that it was a valid transaction, it follows that between her and Corey the entire interest in the premises was held, and therefore that there was nothing left in Berlin to sell. If, however, such assignment was a shift to prevent a levy, Berlin had an interest, by way of security at least, to the amount of the sum due, which, while not recoverable by him, was subject to his debts, and under our statutes and practice it might be levied upon, and a bill could then be filed to settle the question of fraud. 2 How. Stat. § 6108; Doak v. Runyan, 33 Mich. 75. And there is perhaps little, if any, doubt that under the statute cited the complainant might have been made a party to a bill in aid of execution, and prevented from paying Mrs. Burroughs. It is not so clear that a mere notice of the claim of fraud would be sufficient to make such payment one at the peril of 'complainant. Certainly it would not be a defense against an action by Mrs. Burroughs upon the contract^ and complainant would be in no situation to attack the consideration or bona fides of her title.

Bu t it is admitted that he had no actual notice of such claim, for he did not even know of the levy. The defendants’ claim, then, seems to rest upon the fact that the levy was recorded, and the further claim that the fact of the levy should have apprised the. complainant that the transfer to Burroughs was claimed to be fraudulent, or at least that it had priority over the unrecorded contract and assignment to her. It is a well-settled rule that under the recording acts the operation of the record as notice is prospective, and not retrospective. In Wade on Notice (section 203) it is said:

“The only purchasers who are charged with notice by the registration of an instrument affecting the title to land are those who purchase subsequent to the deposit of the instrument with the registering officer.”

Numerous cases are cited in support of tbe text. See, also, 20 Am. & Eng. Enc. Law, 596, and notes.

This doctrine has ample support in Michigan. James v. Brown, 11 Mich. 25; Ladue v. Railroad Co., 13 Mich. 380; Cooper v. Bigly, Id. 176; Dewey v. Ingersoll, 42 Mich. 17; Atwood v. Bearss, 15 Mich. 169; Shelden v. Warner, Id. 638; 1 Jones, Mortg. § 562, and note. In Baldwin v. Thompson, 15 Iowa, 501, it was held that, while judgments were liens upon the vendor’s interest in land, they were not in themselves notice to the vendee, who might safely pay the consideration in the absence of actual notice. See, also, Polk Co. v. Sypher, 17 Iowa, 358. The complainant had no such notice, and, having paid in good faith to those apparently entitled to receive the money, should be protected in such payment; and as it appears that at the time Berlin made the deed he (the complainant) had a right to demand it, having paid the full purchase price of the land, there is no reason for permitting the defendants to proceed with the sale under the levy.

A decree will be entered in accordance with the prayer of the bill, with costs of both courts.

The other Justices concurred.


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    DUFFIE v. CLARK.
    1. Bill of Sale — Construction—Security for Advancements.
    A debtor executed a bill of sale of his stock of goods under an agreement providing that the vendee should furnish not to exceed §1,200 for the purpose of discharging the indebtedness of the vendor, and that the bill of sale should be security for the moneys so to be advanced; that the vendee should resell the stock upon payment by the vendor of $1,600, in monthly installments; that in the meantime the stock and all additions thereto should remain the nroperty of the vendee; that no indebtedness should be incurred without his knowledge; that the goods should be insured in his favor; and that, in case of his death before the entire $1,600 should have been paid, his representatives should execute a bill of sale to the vendor upon repayment of the amount advanced, with interest. The vendor continued the business for several months, when the vendee took possession. Held, that the absolute title did not pass to the vendee.
    2. Trust to Pay Debts — -Good Faith — Burden of Proof-Evidence.
    One who sells to his brother, at private sale, goods of which he has taken possession under an agreement to account to the owner for the proceeds after satisfying certain indebtedness, has the burden of showing that he acted in entire good faith, when sued for the value of the goods; and, as bearing upon that question, all of the circumstances attending the prior transactions between himself and the owner relating to the property are material.
    8. Same — Accounting.
    Where property has been turned over co a person upon h s undertaking to pay a claim against the owner and account for the balance of the proceeds, and at the former’s suggestion the claim is put in judgment, he cannot charge the own, r with the costs thus incurred, or with interest accruing upon the claim after the disposition of the goods.
    Error to Wayne; Donovan, J.
    Submitted May 2, 1895.
    Decided July 13, 1895.

      Assumpsit by John H. Duffle, trustee, against John E. Clark, to recover the value of a stock of goods. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Sloman, Groesbeck & Robinson, for appellant.

      Jayne & Lynch, for appellee.
   McGrath, C. J.

Plaintiff’s assignor, one Hoeger, was, on November 25,1891, engaged in tbe drug business. His stock and fixtures are alleged to have been worth at that time about $2,000. He was indebted to various parties, and, in order to obtain money with which to pay his indebtedness and enable him to carry on the business, he executed a formal bill 'of sale to defendant of all his stock and fixtures. The bill of sale contained the following provision:

“And said first party expressly agrees to keep said goods and chattels insured in the sum of $1,000 or more, in favor of said second party, but at said first party’s own expense; and, while said first party shall have charge of said store and stock of goods, he expressly agrees to incur no indebtedness therefor, except with the full knowledge and assent of the second party hereto.”

At the same time an agreement was entered into, the material portions of which are as follows:

“Whereas, said bill of sale is given as security for certain money furnished and to be furnished by said Clark to pay for and in behalf of said Hoeger certain debts now owing by said Hoeger:
“It is hereby expressly agreed that said Clark shall sell to said Hoeger said goods and chattels included in said bill of sale upon payment to said Clark by said Hoeger of the sum of $1,600, as follows: $50 monthly for 32 consecutive months, according to a series of promissory notes this day given by said Hoeger; the first payment falling due one month from to-day.
“It is further expressly agreed that said goods and chattels shall remain entirely the property of said Clark until the sum of $1,600 shall be paid in full, as above provided.
“It is further expressly agreed that all goods purchased by said Hoeger, to be added to said stock for sale, shall become the property of said Clark from the moment of the purchase by said Hoeger.
“It is further agreed that said Clark shall not be bound to furnish to and for said Hoeger more than the sum of $1,200 in all in consideration for said bill of sale.
“It is further agreed that said Clark shall not be bound to furnish the said Hoeger at any one time more than the sum of $50.
“It is further agreed that said Hoeger shall incur no debts regarding said goods and chattels, except with the knowledge and consent of said Clark.
“It is further agreed that said Hoeger, in case of death of said Clark before the entire $1,600 shall be paid as above provided, shall be entitled to receive from the representatives of said Clark a bill of sale of said goods and chattels upon the payment by said Hoeger of all moneys that have been actually advanced by said Clark, with 8 per cent, interest thereupon.
“Said Hoeger agrees to keep said goods and chattels at all times insured in favor of said Clark for the sum of not less than $1,000.”

Hoeger continued to conduct the business until some time in May, 1892, at which time Clark took possession of the store. Defendant had up to that time advanced to Hoeger $150, and Hoeger had paid one of the notes mentioned in the agreement. Hoeger claims that on several occasions he applied to defendant for further advances under the agreement, but defendant finally refused to make any further advances; that, inconsequence of defendant’s failure to make the advances, it was impossible for him to continue the business; that in May, 1892, he went to defendant.

“The circumstances under which I turned the same over to Dr. Clark were as follows: There was about $1,100 due me under that agreement at that time. A short time before that I went to see Dr. Clark at his office on John R. street, and told him I had to have more money, and he told me that he could not give me any at that time. He told me that he did not have any. He explained that he had a number of investments made just at that time, and all his money was taken up, and he could not give me any money. I told him I would like to make an arrangement with him in that case to turn the store over to him, and let him try to sell it, and we agreed he would do so, and, in case he should sell it, he would try to sell it for $1,800. That was supposed to be the value of it. And if he could sell it for $1,800 he was to give me $300 besides the $1,200. He told me to go and see his lawyer, and make an arrangement with him. I saw Mr. Jayne, his lawyer, and told him what had passed between Dr. Clark and myself. Mr. Jayne told me, however, that he could not bind Dr. Clark, but that he supposed it would be all right. I saw Dr. Clark the next morning. He came up to the store, and he says: ‘Well, Hoeger, I have got a man that will come up here today about noon, and you can leave him in possession of the store, and you take your agreement, and come and meet me down at the Detroit Savings Bank.’ And he says, ‘Be sure and bring your agreement along;’ and I .says, ‘All right.’ At noon his representative came up to the store, and I turned it over to him, and I went down to the Detroit Savings Bank, and met Dr. Clark there. Dr. Clark asked me whether I had brought my agreement along, and I says, ‘Yes,’ and he asked me for it, and I gave it to him. He then proceeded to cancel the notes I had given him, and, finding it a rather tedious job, he tore off the signatures, and gave them to me, and he says: ‘That is all that we can do here. Come over to the office, and meet me and Mr. Jayne there in the office;’ and then we went away, and Dr. Clark went one way and I went another. I went to the office, and met Dr. Clark there, and spoke to him a few minutes, and then the doctor said he had an urgent call he had to attend to at once, and he could not stop to do anything with me, but I could come the next day. I came the next day, and he then made the excuse that he had not been able to do. anything yet. He wanted to see his lawyer, and he told me to come again in a day or two, and in that way he kept putting me off three or four times, until finally a week or two had elapsed, and then, when I came again, then lie did not say he could do anything for me. He could not make the settlement. He did not know what debts might be owing and what debts would be. He said he could not make a settlement; would have to let it go. The value of the stock and fixtures at that time was about $1,900.”

The defendant insists that, at the time he entered into the agreement with Hoeger, he assumed the debt from Hoeger to Farrand, Williams & Clark, amounting to about $700, and that when he took possession of the store there were other amounts due, — for rent $140, a balance of $183 on a soda fountain, a balance of $19 on a show case in the store, and some $60 for electric light and telephone that was unpaid. He claims that possession of the store was voluntarily delivered to him by Hoeger; that he did say, in the presence of Mr. and Mrs. Hoeger, that if the business sold for $1,800 he would make Mrs. Hoeger a present of $300; but that on taking an inventory he found that the value of the stock and fixtures was less than the debts*assumed, and that he finally sold the business to his brother for $1,000. Defendant does not claim that he paid out any money between November 25, 1891, and May, 1892, except that he isays that he paid the $50 received from Hoeger upon the debt due Farrand, Williams & Clark. He admits that ¡he refused to pay Hoeger any more than $150. This suit was commenced in 1893. At that time defendant had not paid the Farrand, Williams & Clark claim, but he insists that he had assumed it. In July, 1892, Farrand, Williams & Clark commenced suit against Hoeger upon this claim, and garnished defendant. Defendant disclosed that he owed Hoeger $673. In January, 1894, defendant gave his notes to Farrand, Williams & Clark for the amount of the judgment. Defendant undertakes to explain this suit upon the theory that he was advised that his oral undertaking to pay Farrand, Williams & Clark was not valid, and that it was necessary that a formal suit should be commenced, and witness garnished.

It is unnecessary to detail the errors complained of. No question seems to have been raised on the pleadings. It is evident that the object of the instruments executed November 25,1891, was, on Hoeger’s part, to enable him to pay up his then existing indebtedness and continue his business, and, on defendant’s part, to obtain security for advances. It is undisputed that the then existing indebtedness was not paid. The largest claim was that of Far-rand, Williams & Clark. It is insisted that defendant assumed that indebtedness, but, whatever defendant did, Hoeger was not released, and, if defendant had been willing to release Hoeger, and Farrand, Williams & Clark had been willing to accept Clark instead, it was entirely unnecessary to have Farrand, Williams & Clark bring suit. The contract was that Clark should furnish the money to discharge the debt. Hoeger was willing to pay to Clark a bonus of $400 (the difference between the $1,200 to be advanced by Clark and the $1,600 which was bo be paid by Hoeger) to relieve tbe former from these pressing debts, amid to enable him to get. credit and continue his business. The bill of sale was filed in the office of the city clerk. Unless the agreement was available for relief, the bill of sale was but an added complication further affecting Hoeger’s credit, and making it more difficult for him to continue his business. If the stock and fixtures exceeded in value the $1,600, Hoeger was injured to that extent, at least, by defendant’s' failure to perform.

With reference to the subsequent arrangement, made* in May, 1892, if, as Clark claims, the stock was voluntarily turned over to him in satisfaction of his claims, Hoeger had full knowledge of what had occurred hitherto, and there can be no recovery. If defendant obtained possession promising to assume and pay the existing claims, and to pay to Hoeger $800 in case the stock and fixtures sold for $1,800, or if defendant agreed to take the stock, and agreed to account to Hoeger for the proceeds over and above his claim and the existing liabilities, and the defendant, acting in good faith, found that the amount of the stock and fixtures had been misrepresented, and did not exceed the amount which had been advanced and assumed, and he, acting in good faith, disposed of the stock at its fair market value, and the proceeds were insufficient to reimburse him, plaintiff cannot recover. Defendant, however, sold the stock at private sale to his brother, in which case the burden is upon him to show that he acted in entire good faith; and, as bearing upon that question, all the circumstances attending the transactions had relating to the property -are material. The papers executed in November, 1891, especially in view of what transpired subsequently, cannot be regarded as transferring the absolute title to defendant; and, if he obtained possession of the store and contents fraudulently or by overreaching, he is liable to plaintiff for the value of the stock and fixtures, less, the amount of defendant’s lien there on for disbursements actually made.

Respecting the claim of Farrand, Williams & Clark, it appears that the judgment against defendant as garnishee has been .satisfied. That operates as a discharge pro tanto of the judgment in the principal suit. Defendant’s undertaking was to pay this claim, but at his suggestion and procurement it was put in judgment. Defendant should not be allowed, in any event, an amount in excess of the face of that claim as it stood at the time of the disposal of the stock of goods, exclusive of any interest or costs thereon since accruing.

The judgment is reversed, and a ¡new trial granted.

The other Justices concurred.