author: Blair, J. Ostrander, J. Carpenter, J.

text:
    BALL v. Harpham.
    1. Statute op Frauds — Sale op Land — Executory Contract-Validity.
    A verbal executory agreement to purchase real estate subject to the back taxes thereon is void under the statute of frauds.
    3. Same — Estoppel.
    A verbal executory agreement to purchase real estate, void under the statute of frauds, is a mere nullity, and cannot be made the basis of an estoppel against defendants’ right to acquire an adverse title.
    3. Taxation — Sales—Right to Purchase.
    Where defendants entered into a verbal executory agreement to purchase certain land subject to the back taxes thereon, •which agreement they failed to keep, they did not thereby become obligated to pay the taxes, and their purchase of the ¡State’s tax title to the land did not operate as a mere payment of the taxes.
    4. Same — Fraud.
    Defendants, after learning through negotiations to purchase certain lands, that petitioner was unable to pay the taxes delinquent thereon, agreed, by parol, through their agent, to purchase the same subject to the taxes, and induced her to believe that they would carry out such contract so that she executed a warranty deed subject to the taxes and deposited the same in escrow for defendants’ benefit. While the deed was lying in escrow defendants secretly purchased the State’s -tax title to the land, and subsequently refused to carry out their contract with petitioner. Held, that such acts constituted a fraud on petitioner entitling her to recover the land on payment of the amount paid by defendants to the State for taxes, with interest, within a reasonable time. Ostrander and Carpenter, JJ., dissenting.
    Appeal from Newaygo; Palmer, J.
    Submitted January 19, 1905.
    (Docket No. 76.)
    Decided July 21, 1905.
    Petition by Florence Ball against John N. Harpham .and George A. Over to set aside certain tax deeds. Defendants filed an answer in the nature of a cross-bill to quiet title. From a decree for petitioner, defendants appeal.
    Affirmed.

      Kingsley & Wicks (M. Brown and Cogger & Broom-field, of counsel), for petitioner.

      E. J. Marsh and Frank Dumon, for defendants.
   Blair, J.

The petitioner filed her petition against the defendants in the circuit court for the county of Newaygo, in chancery, in the matter of the general petition of the auditor general for the sale of lands in Newaygo county for unpaid taxes. The defendants became parties to the tax proceedings by purchasing from the State and applying to the court for the usual writ of assistance.

The petitioner alleges in her petition that she is the owner of some 2,440 acres of stump lands in Newaygo county of the value of “several thousand dollars;” that, owing to lack of funds, she has been compelled to allow the annual taxes thereon to remain unpaid for the years 1891 to 1901, both inclusive; that she has been willing to sell said lands at a sacrifice in order to pay off the delinquent taxes and obtain a balance for herself; that in July, 1902, petitioner—

“Authorized Mr. J. C. Shinkman, of Grand Rapids, Michigan, to negotiate a sale of the same for the purposes aforesaid; that said Shinkman, as her agent, entered into negotiations during the month of July with one Theobold •Harter, of Big Rapids, Mecosta county, Michigan, then representing said John H. Harpham and James Over, who were and still are nonresidents of the State of Michigan. Your petitioner further shows that said Shinkman, as the agent of your petitioner, stated fully all of the facts and circumstances relating to her title to said lands, together with the question of the unpaid taxes thereon, and also, as a part of such negotiations, fully informed the said Theobold Harter, as agent aforesaid, of her pecuniary inability to pay off the tax liens on said lands otherwise than through the sale of them; that such information was imparted in good faith by said Shinkman to said Harter, relying upon said Harter’s assurances that a sale to his principals could be effected and carried through on the terms and conditions offered by the said Shinkman on behalf of your petitioner. Your petitioner further shows that a verbal executory contract was entered into between the said Harter as the authorized representative of said John H. Harpham and James Over, whereby said last-named parties were to furnish the money to pay off all of said back taxes, and your petitioner was to convey by warranty deed her title to said Theobold Harter for the net sum of $900 over and above the said delinquent taxes. * * * Petitioner did, on the 29th day of July, 1902, execute a warranty deed conveying to said Harter all of the aforesaid lands. That the said warranty deed was, by the said Shinkman, deposited in escrow with the Citizens’ Bank of Big Rapids, in accordance with the terms of the aforesaid verbal contract and arrangement, and as a part thereof, for the sale and purchase of all of said lands. * * *
“Thatsaid Harpham and Over disregarded their contract and fiduciary relations with your petitioner, and in violation of their duty requiring them to pay and care for such taxes, and not take advantage of the confidential information communicated by your petitioner’s agent to them, nor of your petitioner’s pecuniary embarrassment, did wrongfully permit and cause said lands to be sold for the delinquent taxes, and did purchase the same from the State for such delinquent taxes. The said Harpham and Over received a tax deed or deeds for such lands from the State, and now assert as against your petitioner adverse title, through such sale and purchase, to all of said lands.”

Petitioner charged:

(a) That the aforesaid arrangement made to purchase said lands from your petitioner and the treacherous conduct of said John H. Harpham'and James Over incapacitated them and each of them from becoming lawful purchasers of the legal title of said lands under the said pretended tax sale purchase.
“ (6) That the demand of the 100 per cent, penalty from your petitioner is contrary to equity and good conscience; that it is extortionate and oppressive.
“ (c) That the payment of the said $2,702.73 by John H. Harpham and James Over did, by operation of law, amount to the payment and redemption by your petitioner of all of said tax liens adjudged as aforesaid upon said real estate.
(d) That said Harpham and Over did not, by virtue of their said alleged tax deed, acquire any legal title to said lands, but in equity became subrogated to a mere lien in an amount equivalent to the benefit received by your petitioner.”

Defendants answered, denying that Harter was their agent, or was authorized by them to negotiate for the purchase of petitioner’s lands, or that they ever agreed with petitioner or her agent, Shinkman, to purchase the lands or pay the taxes, or that they sustained any contract or fiduciary relations with petitioner which should estop them from acquiring a tax title to the lands. Defendants also claim that petitioner’s pretended title constitutes a cloud on their title, and, claiming the benefit of a cross-bill, ask for a decree quieting their title.

The testimony of the parties was taken by deposition. The testimony of Shinkman, Harter, and Lawrence was taken in open court. After hearing the testimony, the court made a decree finding that the material facts stated in the petition were true, and ordering that the writ of assistance be stayed on condition that petitioner deposit with the register of the court, to be paid over to the defendants, the amount paid by them to the State for taxes, with interest, within two months after the decree should become final, and providing that defendants should have a lien on the lands for that amount. It was further ordered that in case petitioner made default in paying off the lien her petition should be dismissed. From this decree the defendants appeal to this court.

After a careful examination of the testimony in the case, we are satisfied that the material facts underlying the transaction between the parties, briefly stated, are substantially as follows: The petitioner, through inability to raise the money to pay the taxes on the lands in question, had permitted them to be sold for taxes for the 10 successive years preceding the oral agreement to sell to Harter. Since 1900 petitioner had been endeavoring to sell the lands through Mr. Shinkman and Mr. Lawrence, and Lawrence had broached the subject to Harter in the winter of 1901-1902. Lawrence did not have full authority to sell the lands, but brought about a meeting between Harter and Shinkman at Big Rapids. Harter was familiar with the lands, and represented the defendants as their agent at the meeting at Big Rapids, and Shinkman represented the petitioner as her agent, although neither had any written authority. On July 25, 1902, Shinkman met Harter at Big Rapids—

“To see if we could not negotiate a sale. I asked the price of $1,000 for Mrs. Ball’s interest. I think my proposition first was that she would give a quitclaim deed. Later I agreed that Mrs. Ball would give a warranty deed, subject to taxes for and after 1890, and the figure of $1,000 didn’t take. Finally we made it nine hundred dollars. Mr. Harter agreed to that. * * * I think the fact of her financial situation and her inability to pay the taxes was brought out in the conversation. I cannot remember the exact words. * * * I don’t know what I said to Mr. Harter about Mrs. Ball’s pecuniary condition except that which was brought out that she did not have money •to take up these taxes. That is how they accumulated. I told Mr. Harter how many years’ taxes there was back at that time.”

Harter had been informed before, and was also told at this meeting, of a resolution of the township board to rebate 25 per cent, of the taxes on these lands, if paid. Mr. Shinkman procured the execution of a warranty deed by petitioner, and on July 31st deposited it in a bank in Big Rapids, where Harter had agreed the money should be to meet it on its arrival. The money was not deposited as agreed, and on August 6, 1902, Shinkman wrote to Harter, and received the following reply, dated August 8th:

“Yours of.the 6th at hand. You see I must produce an abstract before I can turn over land and receive cash. The abstract will cost eighty-four (84) dollars. Had you sent abstract with deed I could have turned everything at once. It takes time. Had receipts been sent with deed, I would not have had to go to Lansing to see the auditor general. You see all this extra work takes time and I will not be able to close with full amount of cash until first of next week.
‘ ‘ Hoping that all will be as you claimed when we were in Big Rapids,. I have to do what you should have done and it takes me much longer than it would have taken you.
“Yours truly,
“T. Harter.”

On the 19th of August, without notifying Mr. Shinkman or petitioner of any change in their intentions, the defendants purchased of the auditor general the State’s title to the lands. On or about August 27th Harter notified the bank that he could not make the deal, and the deed was returned to Shinkman. Harter testified that he abandoned the deal because Shinkman did not furnish an abstract of title as he had promised, but we are satisfied that the agreement did not require Shinkman to furnish an abstract, and that Harter and his principals abandoned the transaction because it was more profitable to deal with the State than with Mrs. Ball.

Petitioner’s counsel contend that the decree should be affirmed, because—

First. “ The rule is well settled in this State that if the circumstances of the particular transaction are such that it would be contrary to the recognized rules of law or of equity as between purchasers and the owner of the existing title that the former should make the purchase, it will not be allowed to prevail but will be treated as a mere mode of payment of the taxes to the State. Blackwood v. Van Vleit, 30 Mich. 118; Simons v. Rood, 129 Mich. 345.”

It is claimed that defendants come within this rule, for the reasons:

1. That they occupied confidential or fiduciary relations to Mrs. Ball through the information imparted to them, by her agent, of her straitened circumstances and inability to pay the taxes, which information was imparted upon the faith of the agreement to buy the lands.

3. That their taking advantage of the information given them and secretly purchasing the tax title before they notified Mrs. Ball or her agent that they had abandoned the contract, and while she had a right to suppose that they still intended to carry it out, was a fraud upon her, which should estop the defendants from claiming that they purchased the State’s title, instead of paying the taxes under the agreement.

Counsel for defendants contend that, the verbal agreement being void under the statute of frauds, no rights can be predicated upon it nor estoppel be based upon it; that no fiduciary or confidential relations existed between the parties; that defendants had a right to abandon the agreement at any time without notice to petitioner; and that there are no allegations in the pleadings nor evidence in the case that the conduct of defendants resulted in any damage to the petitioner other than that which arose from loss of the sale to them.

The verbal executory agreement between the parties was unquestionably void under the statute of frauds. 3 Comp. Laws, § 9509. So far as this agreement was concerned, it bound neither party. Mrs. Ball could have conveyed the premises to another party at any time before her deed was actually delivered to and accepted by defendants upon performance by them of the condition of payment, and they would have been remediless. The defendants could have abandoned the deal at any time prior to accepting the deed, and Mrs. Ball would he remediless so far as the agreement was concerned. As said by the court in Kelsey v. McDonald, 76 Mich. 188, at page 194:

“ As long as he had not accepted the deed, the contract was incomplete, and rested in parol; and his intention to accept it, even if expressed orally, and the payment of money on the contract, and the taking of possession of the land under it, did not complete the contract, or pass the title to him. There yet remained the delivery and acceptance of the deed and the payment of the $4,500. And at least until he accepted the deed, he was at liberty to take advantage of the statute, and recede from his bargain.”

This court has many times held that a contract void under the statute of frauds is a mere nullity. Scott v. Bush, 26 Mich. 418; Lemon v. Randall, 124 Mich. 687; Rodgers v. Lamb’s Estate, 137 Mich. 241. It necessarily follows that, the oral agreement being absolutely void under the statute of frauds, it cannot be made the basis of an estoppel. Hickey v. Hinsdale, 12 Mich. 99; Nowlin Lumber Co. v. Wilson, 119 Mich. 406.

Support for the decree in this case must therefore be found outside of the contract relations of the parties. Petitioner’s counsel contend that such support is found in the confidential or fiduciary relations which they claim arose out of the information disclosed by petitioner’s agent, and which rendered it inequitable for defendants to purchase in the tax title.

Judge Cooley, in the third edition of his work on Taxation, vol. 2, pp. 964, 965, discussing “Who may acquire tax titles,” says:

“There is a general principle applicable to such cases, which may be stated thus: That a purchase made by one whose duty it was to pay the taxes shall operate as payment only. He shall acquire no rights as against a third party by a neglect of the duty which he owed to such party. This principle is universal, and is so entirely reasonable and just as scarcely to need the support of authority. Show the existence of the duty, and the disqualification is made out in every instance.”

In Blackwood v. Van Vleit, 30 Mich. 118, it was said:

“ To preclude any person from making and relying upon a purchase of lands at tax sale, there must be something in the circumstances of the case which imposes upon him a duty to the State to pay the tax, or something which renders it inequitable, as between himself and the holder of the existing title, that he should make the purchase. It was not claimed in this case, so far as the record shows, that there were contract or other relations between Black-wood and Van Vleit that would preclude the latter from buying the former’s land for delinquent taxes. If he was precluded, therefore, it must be on the ground that it was his duty to the State to make payment, and that he is not to be suffered to build up a title on this neglect of duty.”

Referring to the case of Blackwood v. Van Vleit, supra, the court say, in Sands v. Davis, 40 Mich. 14, at page 20:

“The case of Blackwood v. Van Vleit, 30 Mich. 118, holds, in conformity with these views, that there can be no estoppel against purchasing tax titles except against one who had a duty to pay the tax or remove the burden.”

See, also, Hain v. Robinson, 72 Iowa, 735; Jones v. Wells, 31 Mich. 170; Connecticut Mut. Life-Ins. Co. v. Bulte, 45 Mich. 113; Maxfield v. Willey, 46 Mich. 252. This question has arisen in a multitude of cases in our own court and elsewhere, and the decisions have turned generally upon the result of the inquiry whether, under the circumstances of the particular case, a duty to pay the taxes rested upon the person buying the tax title growing out of contract or confidential or fiduciary relations.

Were there such confidential or fiduciary relations existing between these parties as to make it the duty of the defendants in equity to pay these taxes? We think not. The relation of these parties was not confidential, or of a fiduciary character. Their relation was that of adversaries with opposing interests; the one seeking to purchase for his own interest, the other seeking to sell for her own interest. No confidence was reposed in defendants. The' deed was deposited with the bank, to be delivered to Harter when the full amount of the purchase price was paid, and not till then. The disclosure by petitioner’s agent to defendant’s agent that the petitioner was' financially unable to protect herself by paying the taxes was a purely voluntary disclosure, and brought about no change in the relations of the parties. Petitioner’s counsel lay much stress upon the alleged fact that Harter agreed to pay the taxes as part of the consideration, and that, therefore, defendants must be deemed to have paid them in the discharge of their duty under that agreement. We do not think the claim is sustained by the record. The testimony of Shinkman and Lawrence, fairly interpreted, is that the agreement was for the purchase of Mrs. Ball’s interest for $900 subject to the taxes. The testimony of Mr. Shinkman has already been quoted on this point. Mr. Lawrence' testified:

“ Mr. Shinkman did not want to furnish an abstract. Mr. Harter spoke something about it, but Shinkman said, under the conditions of the sale, the cheapness of the land, that they really couldn’t be to the expense of getting an abstract. We proposed to give him a quitclaim deed. Mr. Harter said: ‘ I wouldn’t accept any such thing. I would rather buy it from the State. I want a warranty deed.’ Mr. Shinkman says: ‘All right, we will give it to you. We can give it to you.’ The parties that bought were to pay the taxes. Mr. Over and his man that bought were to pay the back taxes. It was to be so specified in the deed. The deed was to be given subject to all back taxes after 1890. It was stated very positively by Mr. Shinkman that a warranty deed was to be given, subject to the taxes subsequent to 1890. The deed was to be sent to the Citizens’ State Bank of Big Rapids for collection. The consideration was $900.”

The deed from Florence Ball to Theobold Harter is the usual form of warranty deed conveying the lands in question for a,consideration of $900, and contains the following clause as to taxes:

“ That at the time of the ensealing and delivery of these presents she is well seised of the above-granted premises in fee simple, and that they are free from all incumbrances whatever excepting taxes for the years 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1901, and 1902, and she will, and her heirs, executors and administrators shall, warrant and defend same against all lawful claims whatsoever excepting the above-mentioned taxes.”

It remains to consider whether the defendants are es-topped to claim title to the premises on account of their secretly and fraudulently making the purchase while petitioner was authorized by their acts and the letter of Harter of August 8th in believing that they were proceeding in good faith to carry out the oral agreement. Under the circumstances disclosed by this record, we think that the conduct of the defendants in purchasing the tax title for their own benefit and in hostility to Mrs. Ball was a fraud upon her. While defendants had a right to recede from the agreement, wholly abandon it, put themselves in the position of strangers to Mrs. Ball, and acquire the tax title as any stranger might, they had no right to deceive Mrs. Ball, and fraudulently induce her to believe that they honestly intended to carry out the invalid bargain, when, as a matter of fact, they had determined not to carry it out. In our view of the evidence, this is precisely what defendants, through their representative, did. At the time -when Harter wrote the letter of August 8th we are satisfied that defendants had determined to abandon the bargain in case they should ascertain that the auditor general could convey a good title. We are brought to this conclusion by the evasive character of the letter itself, and by the fact that Harter in his testimony assigns false reasons for the defendants’ conduct. Harter testified as follows:

“ I made the proposition that if they furnished the deed and an abstract, so when these parties came they can go before any legal authority and have it examined and approved, I would give them $900; but, if the title was not good, I could not get anything because I couldn’t transfer it. Well, the result was that Mr. Shinkman said he thought he had an abstract. Isays, ‘Now be sure to have it,’and, in order to induce him to have it, we were to put as they say —we put up $100 to pay for all those expenses, and get out an abstract, and have everything straight, because I couldn’t deal any other way. But what was my disappointment when he sent in he had the deed. He said he had back papers that would show this part. I showed him the report of the county treasurer. I showed him that he said they were to be paid to 1900. I says, ‘You say that is incorrect.’ He says, ‘It is; I will show you it is because I have the receipts.’ I says, ‘You send the receipts with the abstract, and that $900 will be there as quick as the papers come.’ When I went to the bank and examined them, I found that he had no abstract, no tax history, to show there was. And Mr. Over came up and I said: ‘The whole thing has fell through. We haven’t a thing for our trouble. It is all gone. There is only one way to do in this matter, and that is to go to Lansing and examine it ourselves — go to the auditor general.’ We took the train that afternoon, and went' direct to Lansing, seen the auditor general, and got specific instructions regarding taxed land. * * *
“ Mr. Over and I went to Lansing and examined the tax title right after we had examined the deed Mr. Shinkman sent to Big Rapids. When we found the papers were not there, Mr. Over, by his own suggestion — we went down there to see who owned the land, because we couldn’t prove anything by that warranty deed. It must have been two or three weeks after the 31st of July, 1903, that we went down.”

Harpham testified:

“ Mr. Over and myself were present in the office of the auditor general of the State of Michigan, and made the purchase ourselves on the 19th day of August, 1903.”

Both Mr. Shinkman and Mr. Lawrence testified that it was distinctly agreed that no abstracts should be furnished, and we have no doubt of the truth of their testimony. Yet Harter pretends that he was greatly disappointed when he found that no abstract had been furnished, and that the deal was abandoned for that reason. His letter is also inconsistent with this claim, for, although he intimates that Shinkman should have furnished the abstract, he also intimates that he is proceeding to have it prepared himself, and for that reason will require time. Again, he gives the court to understand that up to the time they went to the bank they did not know that there had been no abstract furnished. They evidently met at the bank on August 18th, 11 days after his letter, which disclosed that he knew that no abstract had been furnished. He says that after finding there was no abstract the only thing left for them to do was to go to Lansing and examine it for themselves. His letter indicates that he was then — August 8th — prosecuting his inquiries in the auditor general’s office, as we have no doubt he was, and wrote the letter to reassure Mr. Shinkman and gain time. The fact, also, that these parties met at Big Rapids on August 18th, determined., as they claim, to abandon the deal because no abstract was furnished, and yet never said a word to any one connected with the bank, so far as the record discloses, about abandoning the agreement, till August 27th, after they had acquired the State’s title, is quite significant, and not consistent with fair dealing. The form of Harter’s letter is also worthy of consideration. It is evasive. It avoids any direct statement that defendants will carry out their verbal agreement, but was, in our opinion, designed and well calculated to deceive Mr. Shinkman into the belief that they were honestly intending to pay for the deed, and that it was only a question of a few days when they would do so. Eleven days later, without a word to Shinkman of any change in their intentions, and while he had a right to believe that all of their acts were directed to carrying out the bargain, they purchased the State’s title, with the intention of compelling Mrs. Ball to redeem or lose her land. Having lulled Mr. Shinkman into a sense of security by their fraudulent conduct and assurances, whereby they were enabled without hindrance to obtain the title, a court of equity will not permit them to reap the fruits of their fraudulent representations and concealments. They induced Mrs. Ball’s representative to believe that they were- acting in good faith in carrying out the contract, and, relying upon this belief, he permitted the deed to remain in the bank subject to their acceptance, and refrained from taking any steps whatever to protect Mrs. Ball’s interests. Having falsely represented to Mrs. Ball that the things which they had done, were doing, and were about to do were in the carrying out of the agreement, and she having relied upon these representations and refrained from taking any steps to protect herself, and in consequence having been placed in a situation where she cannot be restored to her original condition, we think that it would be inequitable to permit defendants to enforce against Mrs. Ball the rights resulting from their fraudulent practices. The decree of the circuit court in chancery restores the parties to their original position, is equitable and just, and is affirmed with costs of both courts.

Moore, C. J., and McAlvay, Grant, and Montgomery, JJ., concurred with Blair, J.

Ostrander, J.

(dissenting). The decree in this case should be reversed, for the following reasons :

1. Although the petition is filed “in the matter of the general petition of the auditor general of the State of Michigan for the sale of lands in Newaygo county for unpaid and delinquent taxes for the years 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, and 1901,” and although there are some averments in the petition, made upon information and belief, that the court was without jurisdiction to adjudicate the taxes delinquent, it is evident that the case attempted to be made involves purely private rights in no way dependent upon or involving any tax proceedings. Petitioner should be treated like the ordinary complainant in a bill in equity.

2. In a court of equity the complainant must stand or fall by the case made by the bill. This rule is too familiar to require citation of authority. The theory-of the bill is an agreement by defendants to pay the taxes in question, which agreement, with information obtained as to petitioner’s inability to pay them, created relations of such nature that defendants were in equity bound to pay the taxes. °

3. The only contract or agreement proven is one made between petitioner’s agent and one Theobold Harter, and that agreement was to pay to petitioner $900 for a deed of the lands, subject to the taxes. There is no proof that defendants, or any one of them, ever directly or indirectly agreed to pay the taxes upon the lands.

4. The decree below is based upon the finding that the material facts stated in the petition are true. The most material facts stated are that a verbal executory contract was made with Harter as representative of defendants whereby said defendants were to furnish the money tcpay off all back taxes, and that petitioner was to convey her title for the net sum of $900 over and above said delinquent taxes; that defendants disregarded their contract, .and, in violation of their duty requiring them to pay and care for said taxes, purchased the land for such taxes. Treating these alleged facts as untrue, the basis for the decree is gone.

5. It is conceded that the agreement which was made, namely, to buy petitioner’s title, and to pay her $900 therefor, which rested entirely in parol, is void, and that neither an obligation nor an estoppel can be based upon it.

6. Defendants owed no duty, either to the State or to petitioner, to pay the taxes.

7. Conduct is not actionably fraudulent, within legal definitions, which does not defraud. There is no proof in this record that petitioner has been defrauded. Petitioner has as good title to these lands now as she had when the State owned the tax interest. It does not appear that she has done anything except to make a deed, or refrain from doing anything, in reliance upon any promise, undertaking, or conduct of defendants, or of their alleged agent, Harter.

8. Theobold Harter is the person who made whatever agreement was made with the agent of petitioner. It was to him that petitioner’s inability to pay the taxes was confided, if to any one. The deed was made to him. It is sought to reach defendants by the claim that Harter was their representative, and that what he knew and said and did, were the knowledge, sayings, and doings of defendants. The proofs fairly sustain the conclusions that Harter desired control of petitioner’s title for the purpose of selling it to whomsoever he could find to buy; that he interested defendant Over, and Over endeavored to find a purchaser, and did induce two men to look over the lands. These men did not buy. Over is a real estate agent. He testifies that he never expected to buy the lands for himself until he and Harpham visited them. Neither of the defendants ever saw petitioner or her agent, nor had any communication with them or either of them. Over interested defendant Harpham. Harter, whom they saw, claimed to be well acquainted with the land, and to know of several good tracts of land that could be had if parties could handle them. When defendant Harpham had seen the lands, or some of them, and learned that the State held a title to them,' he went with Over to Lansing, and there purchased the interest of the State. It is said in the brief for petitioner that Harter was agent for both Over and Harpham, because he was negotiating with Over, and Over and Harpham are partners, and the employment of an agent by one partner “ is an employment by the copartnership itself.” But there was no copartnership. It is true that both defendants say that they are partners in this particular deal, but, taking all of the testimony into consideration, it is plain that they are no more than tenants in common of the land. The record discloses the fact, which is common knowledge, that the stump lands and pine ‘ barrens of this State, heretofore considered practically worthless, have been sought and bought for cattle ranges by owners of cattle. Harter knew this, and was anticipating a sale of these lands to some such possible buyers. That he had authority from defendants, or from any one else, to buy land for them, or to represent them to petitioner, is, upon this record, negatived.

The decree should be reversed, with costs of both courts to defendants, and a decree entered in this court granting the relief prayed for in defendants’ cross-bill to the extent of quieting their title to the lands in question and awarding them possession thereof.

Carpenter, J.

I do not think that petitioner was injured by the alleged fraud of defendants, and I therefore concur in the foregoing opinion on the ground stated in paragraph 7.

Hooker, J., did not sit.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    WIPFLER v. DETROIT PATTERN WORKS.
    1. Gifts — Bank Deposit — Husband and Wife — Fraudulent Transfer.
    Where a husband deposits his money in a bank to the credit of his wife, and the bank book is placed in her keeping, and all checks by which the deposit is withdrawn are signed by her, there is a gift to her, which he cannot avoid, though its purpose was to place the money beyond the reach of his creditors.

    3. Fraudulent Conveyances — Equity — Parties in Pari Delicto.
    Equity will not assist a husband to obtain rights in a corporation organized by his wife with funds originally his and dependent chiefly on his labor and skill for its success, where title to the property has been kept in his wife’s name to prevent its being reached by his creditors. 0
    Cross-appeals from Wayne; Rohnert, J.
    Submitted February 8, 1905.
    (Docket No. 110.)
    Decided July 21, 1905.
    Bill by Charles Wipfler against the Detroit Pattern Works, Lucy Wipfler, Charles E. Wipfler, and Louis Horn io establish his rights in defendant corporation. From ihe decree rendered, all parties appeal.
    Reversed, and Fill dismissed.

      Charles B. Robertson (Jasper C. Gates, of counsel), lor complainant.

      Fred H. Warren, for defendants.

       As to delivery of bank book to sustain gift of money in bank, ¡see note to Jones v. Weakley (Ala.), 19 L. R. A. 700.

   Carpenter, J.

Defendant Lucy is the wife of complainant, and defendant Charles E. is their eldest son. In September, 1898, complainant commenced the manufacture of patterns. This business was carried on under the name of the Detroit Pattern Works. The capital invested in that business was $1,050 in cash, the ownership of which is in dispute, and other property of inconsiderable value. In January, 1899, it was found that additional capital was needed, and defendant Lucy advanced $1,500, which she obtained by mortgaging land which had formerly been conveyed to her by complainant. This mortgage was subsequently paid, in part by defendant Lucy from moneys earned by her in keeping boarders, and in part — and this, constituted the larger part — from the profits of said business. At the time this $1,500 was put in the business, defendant Charles E. assumed its financial management. Since that time he has not only managed its finances, but. has exercised the power of employing and discharging-men. In October, 1900, defendant Lucy, assuming to be the owner thereof, transferred all the assets of said business to a corporation then organized, also called the Detroit Pattern Works. The incorporators in said corporation were the three individual defendants in this case. Defendant Horn, one of the employes in said business, subscribed for only one share of stock, which he subsequently transferred to defendant Lucy. The stock subscribed by defendant Charles E., with the exception of one share, was also subsequently transferred to defendant Lucy. Prom its inception the business has been a financial success. This success has been due, not only to the efforts of complainant, but also to the efforts of defendant Charles E. Said Charles E. had devoted his time and energy to the business upon the assumption that it belonged to his mother, defendant Lucy, expecting that through her kindness it would ultimately come to him. Complainant.contends that he contributed the original capital to said business, that the corporation was formed without his knowledge and consent, and that the property and business of said corporation therefore belongs to him; and he filed a bill in the court below to enforce his rights as such owner. From a decree granting him partial relief, both parties appeal to this court.-

To sustain complainant’s claim that from the beginning he has owned the property and business of the Detroit Pattern Works, it is necessary that we should find that he owned the same at its inception, and that he did not consent to its transfer to the corporation, in which he had no interest. In my judgment this record warrants our saying that from the beginning the property and business belonged to defendant Lucy, and that complainant consented to its transfer to the corporation. I will proceed to state briefly my reasons for each of these conclusions.

Respecting the ownership of the business at its inception : Ordinarily we may determine the ownership of a business by looking at some distinct arrangement between the parties interested. In this case, no such distinct arrangement appears to have been made. We nrast infer that ownership from the ownership of the capital contributed, and this is the test complainant asks us to apply. The governing question is this: Who owned the $1,050 which constituted substantially all the original capital ? This $1,050, which unquestionably had once belonged to complainant, was at the time this business was started deposited by him in the City Savings Bank to the credit of defendant Lucy. The book which evidenced this deposit was placed in her keeping. She signed all the checks by which the deposit was withdrawn. Complainant testified that this deposit was made in his wife’s name in order to secure her for the $1,500 loan heretofore referred to. I am forced to discredit this testimony. I am satisfied that the $1,500 loan was not made or contemplated at the time complainant made this deposit in his wife’s name.

Complainant insists that, notwithstanding his making this deposit in his wife’s name, the money still remained his under the authority of Peninsular Sav. Bank v. Wineman, 123 Mich. 257. That decision holds “that a mere deposit in the name of another, unaccompanied by acts or declarations indicating an intention to donate the fund, is not alone sufficient to prove a gift,” and is inapplicable to this case, where there was also a delivery of the bank book and a full recognition of the wife’s ownership of the fund deposited. This case is governed by Blasdel v. Locke, 52 N. H. 243, cited with approval and distinguished in Peninsular Sav. Bank v. Wineman, and compels us to hold that there was a gift. See, also, Camp’s Appeal, 36 Conn. 88; Guinan’s Appeal, 70 Conn. 342; Hill v. Stevenson, 63 Me. 364. The only ground upon which we could hold that complainant continued to have an interest in the deposited fund is that suggested by his wife’s testimony, viz., that he had transferred it to her for the purpose of placing it beyond the reach of creditors. This is corroborated by other testimony in this case, and it is established to my satisfaction that complainant wished his wife to appear as the owner of the property and business of the Detroit Pattern Works, so that no property of his might be taken by creditors.

I think it may also be said that, actuated by this same motive, viz., the motive of placing his property beyond the reach of creditors, complainant later not only consented, but advised that the property should be transferred to a corporation in which it should clearly appear that he had no interest. It is true that he testifies that he knew nothing of this transfer. I discredit this testimony, not only because it is contradicted by the testimony of his wife and son, but because it seems to me highly improbable that this circumstance happened without his knowledge.

For these reasons I think, as I have heretofore stated, that complainant never owned the property and business in controversy, and that he consented to its transfer to a corporation in which he had no interest. I have no doubt that there was an understanding, as there always is when a husband transfers to his wife property to defraud creditors, that he should continue to have an interest in said property and participate in the profits of the business. If we could enforce this understanding, complainant would be entitled to relief; otherwise, he would not. No principie of law is better settled tban that we cannot compel a confederate in such an illegal scheme to carry out his contract. Courts refuse to interfere, not because they approve the reprehensible conduct of the confederate, but because they will not aid the other party in an illegal undertaking.

It results from this reasoning that, in my judgment, the decree of the court below should be reversed, and a decree entered here dismissing complainant’s bill, with costs of both courts.

Moore, C. J.3 and McAlvay, Grant, and Blair, JJ., concurred.


author: Moore, C. J.

text:
    REELMAN v. GROSFEND.
    1. Husband and Wipe — Purchase op Goods — Agency — Questions por Jury.
    Where, in assumpsit against husband and wife for lumber sold, plaintiff claimed that, though the lumber was originally sold to the husband, after the first car load was shipped, and when plaintiff was in a condition to recover it back, a new arrangement was made, which authorized him to extend the credit to both husband and wife, and that .he in fact did so, and such new arrangement was denied by defendants, whether both agreed to be liable, or whether the husband acted as agent for the wife, was a question for the jury.
    2. Statute op Frauds — Husband and Wipe — Promise to Pay Husband’s Debt.
    An oral agreement by a married woman that if plaintiff would leave building material purchased by her husband, and would ship the balance ordered, she would see that it was paid for, was in effect a statement that, if her husband would not pay for the material, she would, and was void both under the statute of frauds and as the act of a woman sought to be made liable for her husband’s debt.
    3. Same — Appeal—Record.
    In an action of assumpsit against a husband and. wife, to recover the value of certain lumber originally sold to the husband and used to build a house on the wife’s land, plaintiff claimed that after a portion of the lumber had been shipped, and while he was entitled to recover it back, he made a new agreement with the wife, by which he was entitled to furnish it on the credit of both, and that the wife’s statement that, if her husband did not pay, she would, was only a part of the agreement. The record on error, instead of setting out the evidence, merely recited that plaintiff introduced evidence to support his claim. Held, that a judgment in his favor would not be reversed on the ground that the wife’s agreement was void under the statute of frauds or as an agreement to pay her husband’s debt.
    4. Husband and Wife — Agency—Instructions.
    Where, in assumpsit against husband and wife for the price of certain building materials, it appeared that plaintiff first extended credit to the husband, and it was claimed by plaintiff, and denied by defendant, that afterwards a new arrangement was made, by which credit was extended to both, it was error for the court to charge that if the wife was the owner of the property on which the materials were to be used, and the husband'owned no real estate, except a lot of small value, and he conducted the business in relation to his wife’s property with her knowledge and consent, and she and her husband planned to erect a building on her property, and he, with her approval, contracted for the material, she would be liable therefor, regardless of the fact that the bill was charged, and the correspondence in relation thereto was directed, to him.
    Error to Barry; Smith, J.
    Submitted February 14, 1905.
    (Docket No. 202.)
    Decided July 21, 1905.
    Assumpsit by Jacob Reelman against Evander S. Grosfend and Lucretia M. Grosfend for goods sold and delivered. There was judgment for plaintiff, and defendants bring error.
    Reversed.

      Milton F. Jordan and Colgrove & Potter, for appellants.

      Thomas Sullivan and Hartley E. Hendrick, for appellee.
   Moore, C. J.

Plaintiff recovered a judgment of $171.78 for the value of lumber and material which entered into the construction of a dwelling house erected upon village lots, the record title of which is in Lucretia M. Grosfend, the wife of Evander S. Grosfend. The case is brought here by writ of error.

The record does not give the testimony in extenso. It states that after impaneling a jury the plaintiff introduced evidence to support his claim, and it then sets out particularly some of the evidence. It is then stated defendants then introduced evidence to controvert the claim of the plaintiff, and to support the claim made by the defendants in their plea and notice. It then mentions particularly some of the defenses to which thetestimony was directed. Not a single witness is named, nor is the substance of his testimony set out. This being the situation, it is somewhat difficult to discuss intelligently the 39 assignments of error which are presented.

Mr. Grosfend visited the plaintiff, whose place of business is at Grand Rapids, and, as the result of a talk between them, a paper was drawn and signed, reading:

“Grand Rapids, Mich., June 16, 1897.
“Mr. S. Grosfend bought of J. Reelman, wholesale and retail dealer in hard and soft lumber, flooring, ceiling, siding, etc., job work done to order. Citizens’ phone 1125. Rear 135 Grandville avenue. Dimension shingles a specialty.”

Here follows a long list of articles to be furnished, and then:

“ The amount of this bill is $117.98. This bill of goods to be delivered f. o. b. at Middleville for above amount. The above sum to be placed in the State Bank at Middle-ville, subject to the invoice of unloading. If found satisfactory the money to be sent to Mr. Reelman. Will deliver on or before June 26.
“ J. Reelman.
“E. S. Grosfend.”

It is the claim of the plaintiff that after he shipped the first car load of lumber he drew upon the defendant Evander S. Grosfend, through the Middleville Bank, for the value of the car load of lumber; that the draft was returned to him unpaid; that in the meantime he learned Mr. Grosfend did not own the lots upon which the building was intended to be erected, and was financially irresponsible; that he then went to Middleville with the intention of recovering back the lumber shipped, and went to the farm to see Mr. Grosfend, and there met Mrs. Grosfend and told her the situation, and that he could not let the lumber go under those circumstances; that she then said to him “ that if he would leave the building material there, and would ship.the balance, that she would see that it was paid for; ” that in pursuance of such promise upon her part he allowed the car load already shipped to remain, and proceeded to ship the balance, and also furnished extras; that the defendants completed the dwelling, the plaintiff changing the heading on his books of account so that where it formerly read, “ Evander S. Grosfend,” it afterwards read, “Mrs. and Mr. Evander S. Grosfend.” The plaintiff further testified that, had it not been for the express promise of Mrs. Grosfend to see that this lumber was paid for, he would have taken away the lumber shipped, and would have refused to ship any more; that Mr. Grosfend afterwards carried on the correspondence in reference to the building material; that he wrote Mr. Grosfend from time to time, and sent the bills to him; that, when the finishing material was shipped, Mr. Grosfend wrote plaintiff, expressing himself as satisfied, and asking him to come to Middleville and settle; that he came to Middleville in pursuance of the letter sent him, when Mr. Grosfend found some fault with part of the materials, and asked that plaintiff make a reduction in his bill. This the plaintiff refused to do, hut said to Mr. Grosfend that any material he had that was not up to grade he might ship back, and plaintiff would credit the amount returned; that this was done by Mr. Grosfend; and that he was given credit for the amount returned.

It is claimed that it was admitted on cross-examination by Mrs. Grosfend that she and her husband talked over and planned the building of this dwelling house together on the lots owned by her in the village of Middleville; that she wanted and intended persons doing work on the building, and Mr. Reelman, who furnished the material, should have their pay for the same; that the dwelling house into which this material was put was erected for the mutual benefit of herself and husband, on land owned by her; that they were now occupying it.

It was the contention of the plaintiff that if Mr. and Mrs. Grosfend planned the building of this house together for their joint occupancy and mutual benefit, and Mr. Grosfend, in pursuance of that, ordered the lumber and incurred this indebtedness for their joint benefit, with the knowledge and consent of Mrs. Grosfend, then they were jointly liable.

Upon the part of the defendants it was claimed there was but one contract, and it was made with the defendant E. S. Grosfend upon his own responsibility, and without his acting in any way as the agent of Mrs. Grosfend; that the building material was not in accordance with the terms and conditions of the contract, and that, at the time the plaintiff shipped the second car of material to Mr. Grosfend and it arrived at Middleville, the defendant E. S. Grosfend, together with the carpenter, Mr. Cook, went to the city of Grand Rapids and called upon Mr. Reelman, who agreed to come to the village of Middleville, and that he did come within a day or two, and that at that time the parties talked over the question of the lumber not being in accordance with the terms and conditions of the contract; the defendant E. S. Grosfend then threatening to send it back; and that it was agreed between the parties that the defendant E. S. Grosfend should go on and use the material, and employ such extra help as was necessary to use the same, and that he would be compensated therefor, and that such material as it was absolutely impossible to use he should send back to the plaintiff. It was also the claim of the defendants that the shingles were not in accordance with the contract; that he employed such extra help in pursuance of his agreement with the plaintiff, and that certain material that was covered by the contract was not furnished by the plaintiff under its terms; and that the defendant, by reason thereof, was compelled to purchase material elsewhere to supply the place of material which the plaintiff refused to furnish under his contract.

On the part of the defendants it is insisted :

First. That the testimony does not show Mr. Grosfend was acting for his wife.

Second. If Mr. Grosfend was in fact the agent of his wife, that, if plaintiff was dealing with him as the known agent, then Mr. Grosfend would not be liable; that, if the plaintiff was dealing with him as the agent of an undisclosed principal, when he learned who the principal was he must elect either to hold the agent, or else to hold the principal, but could not hold both.

Third. They contend that the promise of Mrs. Grosfend, if made, was a collateral promise, not in writing, and within the statute of frauds.

As to the first and second of these claims, they might be well taken if all that occurred was what occurred at Grand Rapids at the time the order was given; but it is the claim of the plaintiff that after the first car load of lumber was shipped, and when he was in a condition to recover it back, a new arrangement was made, which authorized him to extend the credit to both of defendants, and that he in fact so extended it. This is denied by defendants, and presented a question of fact for the jury, under proper instructions from the judge.

As to the third contention, if all that was said by Mrs. Grosfend to the plaintiff was “that if he would leave the building material there, and would ship the balance, that she would see that it was paid for,” the point would be well taken. At that time the credit had been extended to the husband, and the language quoted was in effect a statement that, if her husband did not pay for the lumber and material, she would. Such a promise would be void unless in writing. It is also probable it would be void as the act of a married woman who is sought to be made liable for the debt of her husband. See Emory v. Lord, 26 Mich. 431.

The case, however, does not rest there. We have already stated the claims of the respective parties. It has already appeared the testimony is not returned. The record states that plaintiff introduced evidence to support his claim. If, after the first load of lumber was shipped, and while it was in the power of the plaintiff to secure its return, he in fact made an agreement by which the material which was to go into a building to be erected upon land owned by Mrs. Grosfend (the building to be occupied by both defendants) was left at Middleville, and the balance of the material was shipped, the two defendants agreeing to pay for the same, and the credit was then and there and from that time extended to both of them, we think such an agreement could be enforced. By making such agreement, property was acquired for the purpose of having it attached to the real estate of the wife. As to the husband, there is nothing in the way of his making such an agreement. As to the wife, it was an agreement which resulted in acquiring property which was to be attached to her real estate, and the moment it became so attached it became hers. See Johnson v. Sutherland, 39 Mich. 579; Post v. Shafer, 63 Mich. 85; Wilson v. Wilson’s Estate, 80 Mich. 472; Gillespie v. Beecher, 94 Mich. 374; Arthur v. Caverly, 98 Mich. 82; Mosher v. Kittle, 101 Mich. 345.

The judge charged the jury:

“ If you find from the evidence in the case that Mrs. Grosfend was the owner of the lots in Middleville on which the building was to be built, and the farm on which they lived; that Mr. Grosfend was the owner of no real estate, except one lot of small value, and that he conducted the business in relation to all the property owned by Mrs. Grosfend, selling the produce, conducting the business of collecting, handling, and controlling the money thereof, with her knowledge and consent, and that she and her husband planned to put a building on these lots; and that-Mr. Grosfend went to Grand Rapids and contracted for this building material with her knowledge and consent and approval, and in consonance with such planning to build such house — she would be liable for whatever amount you find from the evidence is still due and unpaid for such lumber, and in such case it would be immaterial if the bill was charged to Mr. Grosfend, and that the correspondence connected therewith was directed to him.”

Plaintiff’s counsel say this charge was justified by First Commercial Bank of Pontiac v. Newton, 117 Mich. 433, and other cases cited in the brief. We think, however, a reference to the cases will show they are easily distinguishable from the case at bar. According to the testimony of the plaintiff, the credit in the first instance was extended to Mr. Grosfend. Afterwards a new arrangement was made, by which it was extended to both defendants. All the facts stated in that portion of' the charge quoted might exist, and the credit still be extended to Mr. Grosfend. If it was extended to him, he alone would be liable unless a new arrangement was made.

The other assignments of error — especially those relating to the conduct of some of the jurors — it is unnecessary to discuss, as a like situation will not occur again.

Judgment is reversed, and new trial ordered.

Carpenter, McAlvay, Grant, and Blair, JJ., concurred.


author: Grant, J.

text:
    FOSTER v. GRAND RAPIDS RAILWAY CO.
    1. Master and Servant — Street Railways — Carriers—Assault on Passenger — Special Officers — Liability of Employer.
    Where a special deputy sheriff, paid by a street-railway company, acts solely in his capacity as an officer in assaulting a passenger, and not by the direction of the conductor in charge of the car, the street-railway company is not responsible for the act.

    2. Same — Presumption.
    When a disorderly person is arrested by a police officer, the presumption is that the officer is acting in an official capacity, and not as an agent for the party who by law is required to pay him.
    3. Same — Representation of Public.
    Where a special deputy sheriff, who was paid by a street-railway company, and whose duty it was to preserve order at a resort owned by the company, and ride upon the cars and prevent disturbances, assaulted a passenger on a car in assisting the conductor to eject him for nonpayment of fare, the officer, in so doing, represented not the public, but his employer, and the street railway company was liable.
    Error to superior court of Grand Rapids; Newnham, J.
    Submitted April 4, 1905.
    (Docket No. 2.)
    Decided July 21, 1905.
    Case by Adam Foster against the Grand Rapids Railway company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    Plaintiff claims damages for an assault while a passenger on defendant’s road. He, with four companions, including his wife, had spent the evening at a beer hall at Reed’s Lake, near Grand Rapids, drinking beer and watching a vaudeville performance. This resort is owned by the defendant. The party drank considerable beer, and when they started for home plaintiff was evidently somewhat under the influence of liquor. They boarded the car for their return to the city about 11:15 p. m. The three women of the party, went to the forward end of the car and took seats. Plaintiff and his friend named Duckett, went to the back end. Plaintiff offered the conductor a coin in payment of the fares for the party. The conductor refused to take it, because he was not ready, not having turned the register back to the zero mark. After turning back the register, which was at the front end of the car, he commenced collecting fares. Plaintiff followed the conductor part way up the aisle and offered the fares again, but was refused for the same reason. Plaintiff testified that he pulled out of his pocket a coin, which he supposed was a quarter, and that the conductor put it in his pocket and then handed hack a quarter, and that the plaintiff had thereupon concluded that it must have been a 50-cent piece which he handed the conductor. He later found the 50-cent piece in his pocket. He then discovered that he had paid no fare. On reaching the back platform, the conductor asked plaintiff for his fare. Plaintiff testified that he told the conductor that the fare was paid. The conductor testified that the plaintiff said he had made a tender. Mr. Duckett then twice offered to pay the fares for the party, but plaintiff pushed his hand aside. Plaintiff testified that the conductor then said to some one, “ Put him off,” that immediately afterwards he was struck over the head by some one, and an altercation then ensued, in which he was seriously injured. The assault, if any, was made by one Shinski, an employe of the company, but who for several seasons had been appointed a deputy sheriff to preserve order at defendant’s resort. Shinski testified that his duties were to watch the park in the evening, and stay around the car landing, and, in case of a “ rough load ” of passengers, to go in on the cars to preserve order. Except when employed as a special deputy sheriff during the summer season, he was a motorman in defendant’s employ. The theory of the plaintiff is that Shinski acted under the authority of the defendant, through its conductor, and -that the defendant is responsible for the assault made by him. The theory of the defendant is that Shinski was acting in the capacity of a peace officer, that a disturbance had arisen, and that Mr. Shinski and his brother officer, Fallon, who was also a deputy sheriff, had, without any direction whatever from the conductor, united in an attempt to restore order. These two theories were stated to the jury by the court, and a verdict rendered for the plaintiff.

      Knappen, Kleinhans & Knappen (Willard Kingsley, of counsel), for appellant.

      John W. Powers (MyrowH. Walker, of counsel), for appellee.

       As to liability of carrier for assault upon passenger by third person, see note to Fewings v. Mendenhall (Minn.), 55 L. R. A. 713.

   Grant, J.

(after stating the facts). Counsel for the defendant preferred the two following requests:

“ If there were no angry words spoken in the rear vestibule between Mr. Shinski and Mr. Foster, and if there were no angry words between the conductor and Mr. Foster, and everything had been gentlemanly and quiet up to the time that Mr. Foster claims he was hit on the head, and if you find that Shinski, as a special deputy sheriff, hit him on the head with his billy suddenly, without any direction from the conductor to do so, then the railway company would not be liable for that blow.”
“It appears by the undisputed testimony in the 'case that Shinski and Fallon were special deputy sheriffs, and although they were paid by the railway company, yet that company could neither appoint nor remove them from office; and if you find as a fact, from the evidence in the case, that these officers, or either of them, committed any assault on Mr. Foster, either on the car or on the ground, while they were in the discharge of their official duties, without any directions to do so from the conductor, then -the company would not be liable for such assault, or any injuries resulting therefrom.”

These wei;e refused, and the court instructed the jury that:

“ If the defendant’s servant, Shinski, struck the plaintiff substantially in the manner and under the circumstances narrated by the plaintiff and his witnesses, and while engaged in trying to eject plaintiff from the car, under the instruction of the conductor, said action on his part was unwarranted, and the defendant would not be liable therefor. * * *
“Mr. Shinski, by virtue of being a special deputy-sheriff, was a peace officer, and if a breach of the peace by Mr. Foster had occurred, or was immediately imminent,, in the presence of the officer, he had the right to stop or prevent such breach of the peace; and if the officer, to accomplish that purpose, used excessive violence, by using his billy or otherwise, the railway company would not be responsible for such acts of the officer.”

The court further instructed the jury:

“The railway company is not liable for any assault that was committed upon Mr. Foster after he left the car and was on the ground, by either of the officers, or by the conductor or the motorman, or any of the employes of the railway company, even though such assault was willful and malicious.”

Police protection is essential in places of resort like this, visited by large crowds composed of all classes of society. They are apt to be visited by vicious and lawless elements, and by those addicted to the excessive use of intoxicating liquors. Especially is this true of pleasure resorts of this character open at night. The defendant is largely responsible (for the necessity for police protection, because it brings the crowds there, and is perhaps responsible for the means of amusements and entertainments. Many instances are therefore found in law books where the public authorities have appointed police officers to preserve order in these places, but at the expense of those responsible for them. So the public authorities in the present case appointed deputy sheriffs, with the same powers and duties as they would exercise in any other place. When acting purely in their capacity as police officers, the defendant is not responsible for their acts. Only when the defendant, through its authorized agent, has employed or directed such police officers to act for it, does it become responsible. It was the duty and custom of these police officers to preserve order in and around the pleasure grounds, to arrest those engaged in violations of law, and to accompany the street car from the grounds to the city when there were indications that there were rough persons aboard liable to cause disturbance. If this police officer acted, in his alleged attack upon the plaintiff, solely in his capacity as an officer, and not by and under the direction of the conductor of the car, the defendant is not responsible for his act.

When a disorderly person is arrested by a police officer, the presumption is that the officer is acting in an official •capacity, and not as an agent for the party who by law is required to pay him. Jardine v. Cornell, 50 N. J. Law, 485.

We do not think these requests are justified by this record. As a peace officer, Shinski’s sole duty was to preserve the peace, and to arrest those who were engaged in ,a breach thereof. It was not a part of his duty to the ■public to assist in the removal of passengers who refused to pay their fares, unless the removal was accompanied by such disturbance and violence as to amount to an actual or threatened breach of the peace. Neither under the plaintiff’s nor the defendant’s testimony was there any disturbance before the assault was made. The car had not ■stopped, and the court correctly instructed the jury that the defendant’s servants had no authority to remove plaintiff from the car until it had stopped. Plaintiff had not refused to leave the car for nonpayment of fare. Under the defendant’s own showing, all that had been done prior :to the seizure of plaintiff by Shinski was the demand for fare, the assertion by plaintiff that he had either tendered ■or paid the fare, and the statement by the conductor that he would have to pay his fare or get off. A brief statement of the testimony of the conductor and Mr. Shinski upon this point is important:

The conductor, after testifying that he had asked plaintiff for the fares, and that plaintiff replied that he had made a tender of the money and that the fares were paid, testified as follows:

Q. Then what took place next ?
“A. Why, I told the man, if he didn’t pay his fare, I would put him off, and I took him, put my hand on the man’s shoulder after asking him the third time, told him to-pay his fare or I would put him off, and he didn’t seem to think he would pay his fare, so Mr. Shinski stood there, and Mr. Shinski took hold of him himself. * * *
‘ ‘ Q. When Mr. Shinski took hold of him, what took place ?
“A. Mr. Shinski took hold of him by the throat and pushed him in the corner. He says, ‘ You pay your fare or I will put you off.’ ”

Mr. Shinski, after testifying to the conversation between plaintiff and the conductor, and Mr. Duckett’s offer to pay, when his arm was pushed aside by the plaintiff, testified as follows:

“ So, I turned around. I stood right side of him, and faced him, in front of him. I says, ‘Now, you have to pay.’ I says, ‘ It has been asked enough.’ So I got hold of his right arm. I says, ‘ Step off, please.’
‘ ‘ Q. Whose arm ?
“A. Mr. Duckett’s. * * * So the other man — he waff right behind him — he jumped up to me. He says: ‘What have you got to say? (using a vile epithet). And I grabbed him. I says, ‘I have got a good deal to say.’' I says, ‘ I will have a good deal to say.’ ”

Mr. Shinski then testified to seizing plaintiff by the throat and pushing him up in the corner. When Mr. Fallon, another special deputy sheriff, who was on the car behind, came up, plaintiff testified that Mr. Shinski told Mr. Fallon:. “These people refuse to pay fares, and we want them, off.”

On cross-examination Mr. Shinski testified that before he interfered—

‘ ‘ The conductor asked me, ‘ What are we going to do F ’ 1 says, ‘You know what to do.’
Q. The conductor asked you what to do?
“A. Yes, sir.
Q. What did you say to that ?
“A. I told him what to do. I says, ‘You are the conductor of this car.’ ”

He further testified:

“I asked both of them — plaintiff and Duckett — to pay their fares. ‘As you have not paid your fares,’ I says, ‘ this must be settled.’ I spoke to both gentlemen. * * * After plaintiff called me that name, I let Mr. Duckett go, and got hold of him.”

From Mr. Shinski’s own testimony, and as well from that of the conductor, there was no attempt or intention to arrest plaintiff for a breach of the peace, but only to put him off the car for the nonpayment of his fare. The only reasonable conclusion from this testimony is that the conductor either expressly or impliedly called upon Shinski to assist him in ejecting the plaintiff, and that Mr. Shinski understood that to be a part of his duty. Under these circumstances Mr. Shinski did not, in his assault upon the plaintiff, represent the public, but the defendant. It was wholly immaterial whether any angry words were spoken before Mr. Shinski interfered, or whether the conduct of the parties up to that time had been gentlemanly and quiet.

Judgment affirmed.

Moore, C, J., and Carpenter, McAlyay, and Montgomery, JJ., concurred.


author: Montgomery, J.

text:
    O’NEIL v. POTTER.
    Deeds — Reservations—Right op Way — Nonexistent Land.
    An attempt to reserve a right of way over land which has no existence in fact is inoperative and cannot be given effect inconsistent with the grant of the deed in which the reservation is attempted.
    Appeal from Eaton; Smith, J.
    Submitted April 4, 1905.
    (Docket No. 5.)
    Decided July 21, 1905.
    Bill by Edward O’Neil, an incompetent, by Clara O’Neil, his next friend, against John C. Potter to establish a right of way across defendant’s land. From a decree for complainant, defendant appeals.
    Reversed, and bill dismissed.

      Frank A. Dean and Ernest G. Davids, for complainant.

      George Huggett, for defendant.
   Montgomery, J.

This bill is filed to establish a right of way across premises owned by defendant, and to enjoin defendant from interfering with complainant’s use thereof. The case will be the better understood by the appended map, showing the situation of the premises substantially as they appeared on the 11th day of August, 1879.

The rectangular figure extending east from the southeast corner of the main building, known as the “Sherwood House,” was of later construction; but, apart from this, the map shows the situation of the buildings, with corner and distances as established by the testimony.

In the platting the lots were made to face Lawrence avenue, and were 40 feet in width. There is testimony that there was an overplus in the block, and the testimony

is not altogether clear that the lot lines had been established by user prior to this time. Whether we assume that there was an overplus of some 6f feet belonging to lots 1 and 2, or accept the view of the circuit judge that the surplus had been apportioned to the four inner lots, making them 45 feet, and the outer lot 40, is not very material. The lots are numbered from 1 to 6,' commencing at the west side of the block.

In August, 1879, John Levy owned the north 70 feet of lots 1 and 2 and the west 25 feet of lot 3 of said block 23. Mr. Sherwood formerly owned the same property, and gave mortgages upon it. John Levy acquired title to the south 20 feet of the north 70 feet of said lots 1 and 2 by sheriff’s deed on foreclosure of one of these mortgages. He became the owner of the north 50 feet of lots 1 and 2, and the west 25 feet of lot 3, by deed from A. C. Howard, who had become the owner of the property by sheriff’s deed on foreclosure of the other mortgages. August 11, 1879, John Levy and wife conveyed by quitclaim deed to George W. Sherwood the north 50 feet of lots 1 and 2, and in said deed was the following exception:

“Excepting and reserving the right of way north and south not less than ten feet in width across said premises east of said Sherwood house; also excepting and reserving the south half of the south wall of said hotel building.”

The same day (August 11, 1879) John Levy and wife conveyed by warranty deed the following property:

“Commencing fifty feet south of the northwest corner of block 23, thence running east along the south line of the brick hotel building known as the Sherwood house, eighty feet, thence south twenty and one-sixth feet, thence west eighty feet, thence north to place of beginning, including the south half of the south brick wall of said hotel building, also the right of way across the premises this day deeded by us to George W. Sherwood and reserved by us in said deed to said Sherwood.”

This property above deeded is immediately to the south of the said hotel. Joseph Lang and wife conveyed by warranty deed the said above-described property to the complainant March 28, 1882. And immediately after the said description is the following language:

“ Also a right of way not less than ten feet in width off the east end of the north fifty feet of lots numbered one and two of said block twenty-three.”

November 16, 1886, John Levy deeded the west 25 feet of lot 3 to George W. Sherwood; consideration, $1. It is an undisputed fact, testified to by witnesses of complainant and defendant, that the west 25 feet of lot 3 was used by George W. Sherwood prior to Ndvember 16, 1886, the date of the last-mentioned deed from Levy to Sherwood. The defendant in this case obtained by warranty deed from Mr. Sherwood, April 21, 1892, the north 50 feet of lots 1 and 2; also a strip of land 25 feet in width and 89 feet in depth, extending south from Lawrence avenue, off the west side of lot 3. Defendant also claims by commissioner’s deed given May 9, 1892; said commissioner’s deed giving him the north 50 feet of lots 1 and 2; also a strip of land 30 feet in width and 100 feet in depth, extending south from Lawrence avenu.e, off the west side of lot 3.

In August, 1879, the Sherwood House, or Hotel, was occupied by Mr. Sherwood for hotel purposes, and had been so used from about the year 1871. It consisted Of a three-story brick structure, 50 feet in width by 80 feet deep, fronting on Cochrane avenue, and situated on the southeast corner of Cochrane and Lawrence avenues. The south half of the first story was used for store purposes, and the north half for the office, washroom, and baggage or sample room connected with the hotel, and a hallway leading from the south side of the office running back to a door at the east end of this hallway. The south half of the second story was used as the dining room of the hotel, at the front of the building, with kitchen in the rear; and the north half contained the hotel parlor in front, with rooms back for hotel and family use. This story was divided in the middle by a hallway reached by a flight of stairs from Cochrane avenue, and connected at the foot thereof by a door with the office. This hallway also led to a door at the east end thereof, and contained a stairway to the third story, which story was entirely used for rooms for the hotel. On the east was an open stone and cement cellarway, 3 feet and 4 inches between the walls, leading down to a door in the south basement of this building. Over this was a covered or inclosed stairway, passing down from the back door of the second story hallway to or near the southeast corner of the brickwork of the building, and then to the back yard. Back of the brick building between 20 and 30 feet, and a little south of its center, stood a substantial two-story wooden building, erected at the time of the building of the hotel, for closets. The second story of this building was for the use of the female guests and women inmates of the hotel, and the lower story for the men. The women’s closet was attached to the main building by an inclosed walk or passageway, connecting with the stairway going down from the back hall door above mentioned, and was supported by pillars or posts passing down to the ground below. Beneath this passageway was a board or plank walk, constructed from the back door or lower hallway to the men’s closet. On Lawrence avenue stood the hotel woodshed — a board structure commencing about 14 feet east of the main building, and running east along the street line to a point about 1 foot, or a little more, east of the premises now owned by the defendant. The north side of the woodshed and the fence therefrom to the northeast corner of the main building were so constructed as to be used for bill boards.

The circuit judge decreed that complainant was entitled to a right of way 10 feet in width across lots 1 and 2, immediately east of the brick building formerly known as the “Sherwood House,” now the “Pythian Temple.” It was not found that the complainant had used a right of way at this point, nor does the evidence show such user. On the contrary, access has been gained to complainant’s land by use of the private alley east of the woodhouse. The circuit judge, in deciding the case, laid stress upon the fact that Levy, at the time he conveyed to Sherwood, owned the west 25 feet of lot 3, and was of the opinion that he intended to include that description in the deed of August 11, 1879. The bill does not ask that this deed be reformed, nor does it set out sufficient facts to justify a reformation. The fact that Levy may have intended to reserve a right of way out of land which he proposed to convey on lot 3 cannot establish a right of way inconsistent with the grant of his deed by a reservation over land which has no existence in fact. Thayer v. Finton, 108 N. Y. 394. If the usual sense be given to the words of this reservation, “East of said Sherwood House,” the right of way would fall wholly outside of lots 1 and 2, and wholly on lot 3, as the water-closets were so connected with the main building as to form a part of it. If, however, the reservation could be saved by giving a more restricted meaning to the words, “Sherwood House,” it would, within the settled rule that a deed is to be construed most strongly against the grantor, be our duty to give the words such restricted construction. We are not, however, able to find that anything was reserved in this deed, without doing direct violence to the words employed. The main walls of the Sherwood House extended nearly 81 feet. The stairway'to the basement and its wall occupied substantially every remaining inch of lots 1 and 2. And this was too clearly a part of the Sherwood House to admit of cavil. It results, then, that there was an attempt to reserve a right of way over land which had no existence in fact, and the reservation must be held inoperative.

What the complainant’s rights might have been, had there been a timely application to reform the deeds under which he claims, we need not determine. We are convinced that, as to the right of way claimed, both by failure of any operative reservation in the deed of August 11, 1879, and by reason of adverse occupancy, the complainant’s claim of right is unfounded.

The decree is reversed, and the bill dismissed, with costs of both courts to defendant.

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


text:
    ANTRIM IRON CO. v. ANDERSON.
    1. Licenses — Sales of Standing Timber — Invalid Contracts— Statute of Frauds.
    Though an oral contract to sell standing timber is invalid as a contract, yet it is good as a license, and timber cut thereunder before its revocation becomes the property of the licensee,
    3. Principal and Agent — Authority of Agent — License to Cut Timber — Necessity of Writing.
    It is not necessary that the agent who gives license to cut standing timber should have written authority.
    3. Same — Liability of Principal — Apparent Authority of Agent.
    The liability of a principal to third persons, who have relied on the agent’s apparent authority, in good faith and in ignorance of any limitations or restrictions thereon is measured by such apparent authority, and not by the agent’s actual or express authority, where that differs from the apparent, regardless of whether the agency be a general or special one.
    4. Same — Instructions—Harmless Error.
    Where an agent’s authority in the premises is established by undisputed testimony, a charge authorizing the jury to find that the principal ratified the agent’s action is not prejudicial although there is no evidence justifying it.

      Error to Antrim; Mayne, J.
    Submitted April 6, 1905.
    (Docket No. 31.)
    Decided July 21, 1905.
    Replevin by the Antrim Iron Company against James Anderson. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      Nelson O. Weter (T. J. O’Brien, of counsel), for appellant.

      W. S. Mesick, for appellee.
   Carpenter, J.

Plaintiff brings this action of replevin to recover timber cut from section 31, Star township, An-trim county, Mich., by one Elgie Dow, and by Dow sold to defendant. On the 10th of September, 1902, plaintiff, the owner of said timber, acting through its agent, Charles L. Bolio, entered into a contract with Dow, whereby Dow agreed to cut, skid, draw, and load on cars the timber in question and the timber standing on four other sections belonging to plaintiff. In February, 1903, this contract was rescinded, and a new and oral contract made, by which Dow purchased from the plaintiff, through said Bolio, its agent, certain timber standing on the land covered by the former written contract. There is a dispute as to what standing timber was embraced in this new oral contract. Plaintiff’s testimony tends to prove that it covered all the standing timber embraced in the written contract, except that on section 31. Defendant’s testimony tends to prove that it covered the standing timber on all the land embraced within the written contract, including that on section 31. At the time this oral contract was made it was contemplated by Bolio and Dow that it should be put in writing; and that in the meantime, according to the testimony of the defendant, Dow might enter upon the lands, and commence cutting and removing the timber. Bolio testifies that he subsequently did execute'a writing, and mail it to Dow, and that in this writing the timber standing on section 31 was not included. Dow testifies that this writing was never received by him, and that before he was interfered with he had cut the timber in question. It is conceded that the consideration paid by Dow was actually received by plaintiff. Plaintiff never gave Bolio any written authority to act for it, nor any express verbal authority to sell the timber standing on section 81. The issue was submitted to a jury, who rendered a verdict for the defendant. Plaintiff brings the case to this court, and urges many reasons why the judgment entered on said verdict should be reversed.

We answer many of those reasons by saying, first, though the contract to sell the standing timber was invalid as a contract because not in writing (see Russell v. Myers, 32 Mich. 522), it was good as a license, and the timber, having been cut before the license was revoked, became the property of Dow; second, it was not necessary that the agent who gave this license should have written authority. Spalding v. Archibald, 52 Mich. 365, is authority for each of the foregoing propositions.

Plaintiff contends that there was no evidence tending to prove that Bolio had even verbal authority to sell this timber to Dow. The undisputed evidence shows that Bolio did have authority to contract with Dow for the lumbering of all this timber, and that he also had authority to sell Dow all the standing -timber covered by said contract except that on section 31. There was also evidence that Dow bought the timber believing Bolio had authority to sell it. The legal rule applicable to this case is correctly stated by Mr. Mechem in his work on Agency (section 283) as follows:

The principal is bound to third persons who have relied thereon in good faith and in ignorance of any limitations or restrictions by the apparent authority he has given to the agent, and not by the actual or express authority where that differs from the apparent* and this, too, whether the agency be a general or a special one.”

Under this rule it cannot be said that Bolio did not have verbal authority to make the contract in question.

The court charged, in effect, that the jury might find that plaintiff ratified the action of its agent, Bolio. Plaintiff contends that there was no evidence justifying this charge. If so, the charge was not erroneous, because it bore only upon the question of Bolio’s authority, and under the rule we have just stated the undisputed testimony established that authority.

Many complaints of plaintiff relate to rulings admitting testimony introduced by defendant. We have carefully examined each of these complaints. It would be of no service to the profession to detail them. It is sufficient to say that all this testimony was properly admitted. Some of that testimony tended to prove the contract, some of it tended to prove Bolio’s authority, and. some of it had a legitimate tendency to discredit plaintiff’s witnesses.

Complaint is made of improper language used by defendant’s counsel in his argument to the jury. We think it sufficient to say that under the authority of Cameron Lumber Co. v. Somerville, 129 Mich. 552, this language was not reversible error.

No other complaint demands discussion. The judgment is therefore affirmed.

Moore, C. J., andMoALVAY, Grant, and Montgomery, JJ., concurred.


author: McAlvay, J.

text:
    ROBINSON v WARD.
    1. Appeal and Error — Questions Considered — Directed Verdict.
    Where a verdict is directed for defendant after all the evidence is in, the question on error is whether, considering all the evidence in plaintiff’s favor as true, and giving it the most -favorable construction, it fails to make a prima facie case.
    3. Sales — Scale oe Logs — Conolusiveness.
    Where logs were sold for a certain price per foot, the number of feet to be ascertained by a joint scale, the parties were not bound by a scale afterwards made by their agents if it was erroneous either because of fraud or gross mistake.
    Error to Crawford; Sharpe, J,
    Submitted April 13, 1905.
    (Docket No. 67.)
    Decided July 21, 1905.
    Assumpsit by Samuel A. Robinson against Frank Ward, and Fred Ward, copartners as Ward Bros., for goods sold and delivered. There was judgment for defendants on a verdict directed by.the court, and plaintiff brings error.
    Reversed.

      Ward B. Connine (Main J. Connine, of counsel), for appellant.

      James E. Duffy, for appellees.
   McAlvay, J.

Plaintiff, a lumberman of Crawford county, sold defendants certain maple logs skidded in his millyard near Frederic. Defendants do business at Bay City in buying logs and manufacturing lumber. One Trombly, acting for defendants, examined the logs in plaintiff’s millyard, and plaintiff agreed to sell defendants such logs as Trombly should select at $7 per thousand, payable $6 per thousand as soon as the scale was reported to defendants, and the balance of one dollar when the logs were loaded on cars. It was agreed that the logs were to be scaled merchantable, rejecting visible defects, sound hearts not to be scaled out. The logs were to be scaled jointly by Trombly and Lewis. They, in the presence of plaintiff, began the joint scale of the logs as selected by Trombly; Lewis marking logs he scaled with a straight mark and Trombly with a letter D. Plaintiff was soon called away from his mill and yard. Trombly had brought with him one of defendants’ marking hammers, and plaintiff had one of his men follow the scalers and hammer mark the logs scaled and marked by them. Soon after plaintiff left, Trombly told Lewis that it was too slow work for them to scale together, left him, and went to work scaling in another part of the yard. After they had gone oyer the logs in the yard, Trombly took the hammer man with him to another lot of logs, and went over them, selecting and marking certain logs. After finishing his scaling, Lewis got their team and drove to where Trombly was, took him in, and started for Frederic. On the road they met plaintiff, and told him they had finished the work, Trombly saying he would send plaintiff a scale of the logs as soon as he figured it up. After arriving at Frederic, Trombly took Lewis’ scale book, and added the amounts in it to those in his book, and soon after sent plaintiff a scale of the logs, purporting to show the number of logs scaled and the scale as made by himself and Lewis. This report showed 2,255 logs, scaling 223,210 feet. Of these, 609 logs, scaling 65,260 feet, were scaled by Lewis, and 1,646 logs, scaling 157,950 feet, were scaled by Trombly. A copy of this scale report was sent by Trombly to each of the parties. From this report plaintiff presented his bill for $6 per thousand to defendants, and was paid by their check $1,338. The cars were furnished by defendants and loaded by plaintiff from time to time from May to July, 1901. The logs were scaled ^nd counted by plaintiff as they were being loaded on the cars, and with each shipment a statement was mailed to defendants, describing each car, and giving the number of logs and the number of feet on each car according to his scale. Plaintiff claims that all the logs shipped were those marked by Lewis or Trombly, except a very few instances, where he substituted a good sound log for a broken, cull, or basswood log. Plaintiff shipped 2,112 logs, amounting tó 227,524 feet, according to his scale. This exceeds the scale according to Trombly’s report by 4,314 feet, and there yet remained in his yard 500 to 600 logs marked with Lewis and Trombly marks. All the logs selected and marked by Lewis were hammer-marked, but not all those selected and marked by Trombly. Plaintiff did not know until after the logs were all shipped that Lewis and Trombly did not make a joint scale. Shipment of logs was stopped on account of the excess of the marked logs and the excess of plaintiff’s scale. On being notified, Fred Ward, one of the defendants, came to the plaintiff’s place. He claimed all the logs with their mark on. He wanted all the logs Trombly had scaled. Plaintiff refused to let him have them. Plaintiff afterwards manufactured the balance of the marked logs. Plaintiff sued defendants in assumpsit on all the common counts, and on demand furnished a bill of particulars, claiming $254.67, the balance due on logs delivered according to his scale, and $26.71 as interest thereon. The plea was the general issue, with notice that the logs were purchased by defendants under a special agreement, being a certain number at a certain price, which agreement had not been fulfilled by plaintiff, and damages were claimed because only part of the logs purchased were delivered; that many poorer logs were substituted; and that they were not delivered at the time agreed upon. After proofs on both sides were all submitted, the court directed a verdict in favor of defendants.

Whether or not the court was correct in taking the case from the jury is the principal question before us. The question cannot be determined upon the strength of plaintiff’s case, but upon the fact whether, after considering all the testimony in the case making in favor of the plaintiff as true, and giving the most favorable construction possible to such testimony, it fails to make a prima facie case.

There is no question in this case but that a certain number and amount of logs were purchased by defendants from the plaintiff for a certain price, to be delivered and paid for in a certain manner. Plaintiff claims that the logs were to be scaled by a joint scale to be made by the representatives of each party, and offered proof tending to show this fact, and also that no such joint scale was made; that 500 to 600 more logs were marked than the number stated in the scale report, and that a less number of logs delivered by plaintiff actually contained a greater number of feet than the scale called-for; that he never knew that the scale was not made as agreed until after the logs were delivered. He sued in assumpsit upon the common counts to recover the balance due him, Defendants deny that they have received the logs purchased, either in number or amount, and claim that logs of poorer quality were substituted. It was the province of the jury, and not the court, to determine these disputed facts. The court erred in taking the case from the jury.

The court was in error in his conclusion of law from the evidence that plaintiff was bound by the scale made, because no fraud was shown. It was for the jury to determine the dispute relative to the scale and marking of the logs. These scalers, either or both of them, by fraud or gross mistake could not defeat either one of these parties of their rights and property, nor would either party be bound by such a scale. Such conduct is always open to investigation, and any competent proof of any scale made of these logs, or the lumber manufactured from them; was material, which tended to show the amount actually delivered to and received by defendants. It is not necessary to consider the other assignments of error.

The judgment of the circuit court is reversed, and a new trial ordered.

Moore, C. J., and. Carpenter, Montgomery, and Ostrander, JJ., concurred.