text:
    JOHNSON v. DETROIT & MACKINAC RAILWAY CO.
    1. Railroads — Killing Stock — Defective Cattle-Guards — Instructions to Jury.
    In an action for the value of cattle killed on a railroad track in consequence of an alleged defective cattle-guard, the charge of the court was examined, and hold not to warrant the contention that the jury were instructed, in effect, that defendant had not done it§ full duty in providing a cattle-guard approved by the railroad commissioner unless the guard provided was in fact sufficient to prevent cattle passing upon the track.
    2. Same — Negligence.
    It was not error to instruct that if the cattle crossed the guard, because it was out of repair, or if they passed between it, and the wing fence, the verdict should be for plaintiff; it appearing that the guard had been in the same condition as at the time of the accident for more than two months. 2 Comp. Laws, § 6294.

      3. Same — Requests to Charge.
    There being testimony tending to show that some of the cattle passed over the portion of the guard not claimed to be defective, it was error to refuse to instruct that as to any such cattle there could be no recovery.
    4. Same — Evidence.
    It was not reversible error to permit witnesses to state the condition of the guard the day after the cattle were killed, without first proving that its condition had remained unchanged; subsequent testimony having supplied the omission.

      5. Same — Expert Testimony.
    Defendant’s roadmaster, who had examined the guard after the accident, should have been permitted to testify as to its efficiency to turn stock, as against the objection that this was one of the issues for the jury.
    6. Same — Conclusions.
    A question asked of a witness who had given an incomplete description of the guard, as to what, if any, other defect he noticed therein, was not objectionable as calling for a conclusion.
    7. Same.
    It was error to refuse to permit a witness to testify. that he had seen the cattle in question pass over another guard of like construction near by, which was in no way defective.
    8. Same — Trial—Argument oe Counsel.
    In an action against a railroad company for killing cattle, repeated statements by plaintiffs counsel in his argument to the jury, that any money given plaintiff by their verdict would not come out of the pocket of anybody except defendant corporation, and urging them to place themselves in plaintiffs position, coming into court asking that “this large corporation pay to him what his cattle were reasonably worth,” were ground for a reversal.
    Error to Iosco; Connine, J.
    Submitted November 18, 1903.
    (Docket No. 131.)
    Decided January 5, 1904.
    Case by Nelson Johnson against the Detroit & Mackinac Railway Company for killing cattle. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Charles B. Henry, for appellant.

      Jahraus & Bawden, for appellee.
   Carpenter, J.

On the 26th of June, 1902, seven head of cattle belonging to the plaintiff were struck, while on the defendant’s track, by its locomotive, and killed. These cattle went onto the track from the highway, at which there was a cattle-guard, designated as the “Positive” cattle-guard, and described as follows in defendant’s brief:

“It consists of four sections,— two sections 26 inches wide, between the rails, and one section on the outside of each rail, 22 inches wide. This cattle-guard consists of a series of ridges or billows, passing over each tie, and about 2-2- inches above it, and down between the ties; and in placing the guard they had to dig out between the ties and hew off the edge of the ties, spiking the guard to these ties. The effect of cattle attempting to walk over these guards was that they would be thrown upon their knees, their feet slipping down between the ridges or billows created by the shape of the guard.”

This cattle-guard was approved by the commissioner of railroads. In March, 1902, a freight car ran off the track and flattened down a portion of this guard, about 10 inches in width, on the north side of each rail. Though defendant contended to the contrary* the testimony of the plaintiff tended to prove that this defect was never fully repaired. Tbe testimony of the plaintiff also tended to prove that there was a sufficient space for the passage of these cattle between the cattle-guard and the adjoining fence, and that by reason of these two defects the cattle made their entry upon the track. The testimony of defendant tended to prove that the cattle, or at least some of them, in going on the track, passed over portions of the cattle-guard which had never been out of repair. The issue was submitted to the jury, who rendered a verdict for the plaintiff. We are asked to reverse the judgment ■of the court below for errors which can be most clearly discussed in the following order: (a) In the charge of the court; (6) in admitting and excluding testimony; and (c) in the argument of plaintiff’s counsel.

The law which determines defendant’s obligation in the premises is contained in section 6294, 2 Comp. Laws. We quote such portions of said section as are material to this case:

“Every railroad company * * * shall erect, and maintain in effective condition of repair, fences on each side of the right-of-way to their respective roads. * * * Such right-of-way fences shall be provided with suitable connecting fences and cattle-guards at all highway and street crossings, which shall at all times be kept in effective repair, and sufficient to prevent stock of all kinds from passing upon the track of the railroad at such highway or street crossings: * * * Provided, that any fence or cattle-guard which shall have the written approval and indorsement or the commissioner of railroads of this State, and which fence is not less than four and one-half feet in height, and is otherwise equal, in' durability, strength, and sufficiency to turn animals and stock, to the -fences herein described, shall be a legal railroad fence or cattle-guard. * * * And until such crossings, fences, and cattle-guards, as hereinbefore provided for, shall be duly constructed, the company or corporation owning or operating such road shall be liable for all damages done to cattle or other animals thereon which may result from the neglect of such company or corporation maintaining or operating such road to construct and maintain in repair such crossings, fences, and cattle-guards, as aforesaid; * * * and after such company or corporation shall have constructed such crossings, fences, and cattle-guards, as hereinbefore provided, and while they shall continue to maintain the same in good and sufficient repair, it shall not be liable for any such damages as aforesaid, unless negligently or willfully done.”

It is contended that the trial judge charged the jury, in effect, that defendant had not done its full duty in providing a cattle-guard approved by the commissioner of railroads unless said cattle-guard was in fact sufficient to prevent cattle passing on the track. We think this an unwarranted construction of the charge. This is proved by the following quotation, with which, in our judgment, the entire charge is in harmony:

“ It is, however, provided in this same statute that a cattle-guard that has been approved by the railroad commissioner of the State shall be deemed a reasonable and sufficient cattle-guard; and, if this cattle-guard had been kept as it was originally placed there, and if there was no question about the space between the cattle-guard and the fence, then there would not be any case here, and the plaintiff could not recover.”

It is also contended that the court erred in charging the jury as follows: *

“Now, if the cattle passed the metal guard, if they crossed it because it was out of repair, or if they passed beside the metal guard, and between it and the fence, and were killed by the cars of the defendant, then the plaintiff is entitled to recover the value of the cattle — the fair market value of the cattle — at that time.”

Defendant contends that', even though the cattle-guard was out of repair, and even though the cattle passed between the guard and the fence, it was not liable unless the jury found that these defects constituted negligence. It is true that in Smead v. Railway Co., 58 Mich. 200 (24 N. W. 761), this court decided that the railroad company, under a similar statute, was not bound to supply .cattle-guards which trespassing animals cou’ld not possibly pass over, and that it complied with its obligation by using commensurate care. The application of that principle to this case by no means proves the charge under consideration to be erroneous. This court should not hesitate to say that the obligation of defendant to use due care to maintain the efficiency of the guard approved by the commissioner of railroads was a legal obligation, and that, if these cattle passed over the guard because it had been out of repair for over two months, there was negligence as a matter of law. It is equally clear, if defendant left a space between the fence and the cattle-guard sufficiently wide for the passage of cattle, that the court should say, as a matter of law, that it neglected to provide “suitable connecting fences and cattle-guards * * * sufficient to prevent stock of all kinds” (and this includes hogs and sheep, as well as cattle) “from passing upon the track.”

The only fault in the charge of which complaint can justly be made consists of the failure of the court to instruct the jury, as requested by defendant:

“ The defendant has offered évidenceto show that some-of the cattle, at least, passed over that portion of the guard which it is not alleged was defective, and, for at least so many of such cattle as passed over the guard where it was not defective, no recovery whatever can be had; and, unless you find that some of the cattle passed over said guard by reason of its defective condition, no recovery can be had.”

The defendant did offer evidence tending to prove that at least some of the cattle passed over the portion of the guard not defective. We doubt if the jury were informed,, as they would have been if defendant’s request on the subject had been given, and as they should have been, that,, if some of these cattle passed over that part of the cattle-guard not defective, for their destruction there could be no recovery. With this exception, the charge was a clear and accurate statement of the law.

Errors in admitting and excluding testimony.

(a,) It is contended that the court erred in permitting witnesses to state the condition of the cattle-guard the day after the cattle were killed, without first .proving that its condition was then the same as when the cattle passed over it. It is a sufficient answer to this claim to say that testimony was subsequently introduced tending to show that the guard was practically in the same condition as when the cattle passed over it.

(6) The court refused to permit defendant’s roadmaster, after he had stated the condition of the cattle-guard, to answer the following question preferred by defendant:

‘ ‘ From your knowledge of the operations of cattle-guards in deterring cattle and turning back stock, I ask you to state what condition this cattle-guard was in when you examined it after these cattle were killed, — what condition this cattle-guard was in, so far as being in condition suitable to turn cattle away and prevent cattle from passing' over it ? ”

This testimony was excluded on the ground that it was a question for the jury. The court also refused to permit another witness of defendant, who had given an incomplete description of the guard, to answer this question: ‘ ‘ What, if any, other defect did you notice in the cattle-guard ? ” This decision was based on the ground that the question called for a conclusion. The court also refused to permit another witness of defendant to answer this question: “I ask you if prior to the 26th day of June, 1902 (last), you have seen these same cattle pass over this other guard, where it was not bent down or in any way defective ? ”

It is the claim of the defendant that, after the cattle-guard was damaged in March, it was so repaired as to be as effective as when originally constructed. If this claim were established, it would be a complete answer to the contention of plaintiff that the destruction of the cattle was a result of the cattle-guard being out of repair. This excluded testimony certainly tended to establish this claim. Neither can we say that the first of the above three questions was objectionable because it was one of the issues for the determination of the jury. We think it was a proper question for opinion evidence. The answer of an expert witness like the roadmaster of defendant corporation would afford legitimate aid to the jury. See N. & M. Friedman Co. v. Assurance Co., 133 Mich. 212 (94 N. W. 757). Neither do we think the second of said questions objectionable on the ground that it called for a conclusion.

During the argument of plaintiff’s counsel to the jury, defendant’s counsel took exception to “all this line of talk where he says that it will not come out of Mr. Luce’s pocket, or Mr. Bolen’s pocket, but it will come out of this corporation.” To this the court said, “ You may have an exception.” Thereupon plaintiff’s counsel said:

“I repeat, this case is the case of Nelson Johnson against the railroad company, and not against any individual, and if you shall decide that this railroad has been negligent, through its officers and agents and servants, in keeping up its roadbed, and not protecting the lives of cattle that might stray over its right of way, and not protecting the lives of those that are traveling upon its railroad, I repeat that the money will come out of the corporation’s pocket, and not out of anybody else’s. (Exception by defendant’s counsel.) I am asking that this corporation, after it has failed to perform the duties the statute imposes upon it, give us its just and honest value. (Exception by defendant’s counsel.) So I say to you, gentlemen of the jury, in closing, look at this matter as between man and man, and consider the circumstances that this man is in, and take his position, when he comes here asking that this large corporation pay to him what his cattle were reason,-ably worth. (Exception by defendant’s counsel.) We ;are not coming here asking for that which you would not ask for if you were in the same position we are in. These cattle belonged to him. These cattle were killed, as shown by the evidence of their witnesses, because it was a defective cattle-guard, as we claim, and because they had failed to perform its duty that the statute imposes upon it. Now, we do not ask you to put your hands into any man’s pocket, but Nelson Johnson comes here and says to this defendant corporation that ‘You failed in your duty; you failed to do what the law requires of you, and this man, the plaintiff in this case, has been injured thereby, and in all justice and fairness to him you should pay him what the propertyis worth that you destroyed.’ (Exception.)”

While we cannot say that included in these excepted statements there is not an argument that is just and legitimate, we cannot fail to see that, mingled with it, is an improper appeal that the jury should take into consideration, in determining this case, the fact that the plaintiff is an individual and the defendant a corporation. The principles of justice, as well as our own decisions (see Laird v. Laird’s Estate, 127 Mich. 24 [86 N. W. 436]; Thompson v. Railway Co., 91 Mich. 255 [51 N. W. 995]; Mott v. Railway Co., 120 Mich. 127 [79 N. W. 3]; Rutter v. Collins, 96 Mich. 510 [56 N. W. 93]; Britton v. Railroad Co., 118 Mich. 491 [76 N. W. 1043]; Cluett v. Rosenthal, 100 Mich. 200 [58 N. W. 1009, 43 Am. St. Rep. 446]), compel us to condemn this argument. If it is true, as suggested in plaintiff’s brief, that it was justified by the attendant circumstances, he should have made those circumstances appear in the record.

We do not discover any other error in the case, or any other question which merits discussion.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Carpenter, J. Carpenter, J.

license: Public Domain

text:
    PORTER v. OSMUN.
    1. Adverse Possession — Life Estates — Tenancy in Common.
    The possession of a grantee of a life tenant and part of the remaindermen cannot be adverse to tjje other remaindermen prior to the termination of the life estate.
    2. Ejectment — Title—Equity.
    A claimant under a primary school certificate cannot maintain ejectment against a patentee of the land from the State, but equity is the proper forum for relief.
    on settlement of decree.
    1. Estates in Land — Vested Remainders.
    Where land was conveyed to one for life, with remainder to his “heirs,” an estate at once vested in the children of the grantee, so that, on the death of one of them prior to the father’s death, his interest descended to his heirs.
    2. Tenancy in Common — Life Tenant — Compensation for Improvements.
    One in possession of land as tenant for the life of another, though a co-owner of the remainder, is not entitled, as against the other remaindermen, to compensation for improvements made during the continuance of the life estate, even in a court of equity.
    Appeal from Oakland; Smith, J.
    Submitted November 5, 1903.
    (Docket No. 88.)
    Decided January 5, 1904.
    Additional opinion on settlement of decree March 15, 1904.

      Bill by Ella Porter against Oliver H. P. Osmun, Nettie-Van Kuren, Dorsey Osmun, and others, for, a partition. From a decree dismissing the bill, complainant appeals.
    Reversed.

      William E. Crane, for complainant.

      Patterson & Patterson, for defendant Oliver H. P„ Osmun.
   Carpenter, J.

In 1849 complainant’s grandfather, Israel Osmun, purchased a primary school certificate, which gave him the right to a patent from the State conveying the land in controversy. In 1856 said Israel Osmun conveyed said land to complainant’s father, John. , Osmun, ‘ ‘ during his natural life, and to his heirs thereafter forever.” In 1877 complainant’s grandfather,, father, mother, brother (defendant Dorsey Osmun), and sister (defendant Nettie Van Kuren) united in a deed conveying said land to defendant Oliver H. P. Osmun. On the 10th of the following May said defendant Oliver obtained a patent from the State conveying to him the land in controversy, and paid the requisite consideration therefor. John Osmun died in May, 1901, leaving surviving him three children, viz., complainant, and defendants Dorsey Osmun and Nettie Van Kuren. Shortly thereafter, complainant, claiming that she is entitled to one-third of said land, commenced this suit in chancery, praying an accounting and partition. The learned trial judge dismissed her bill of complaint, and complainant appeals to this court.

No question is made that the term “ heirs ” in the deed of 1856 designated the children of said John Osmun. It is, however, contended that complainant’s right in the-land is barred by the statute of limitations, and that equity will not afford relief.

The statute of limitations, in our judgment, has no application. Complainant had no possessory right in the-land until her father’s death, in 1901. The possession of defendant Oliver H. P. Osmun, until that time, was in no sense adverse to complainant.

It is equally clear that complainant must seek relief in equity, and not at law. By obtaining the patent from the State in 1877, defendant Oliver H. P. Osmun acquired the legal title. Complainant could not assert her rights against this title in a suit in ejectment. Moran v. Moran, 106 Mich. 8 (63 N. W. 989, 58 Am. St. Rep. 462), and cases cited.

As no other answers are made to the claim asserted by complainant, and as we can conceive of none, it follows that she is entitled to a decree. The decree of the court below will be reversed, and complainant given a decree for an accounting and partition, as prayed. The record will be remanded for further proceedings under this decree.

The other Justices concurred.

ON SETTLEMENT OF DECREE.

Carpenter, J.

On the settlement of the decree in this case, some questions have arisen which demand discussion.

What interest has complainant in the land in controversy? Besides the three children of John Osmun mentioned in the opinion, there was a fourth, — Elizabeth Malby. Elizabeth Malby died September 18, 1883, leaving a child, Roy Malby, who died October 16, 1883. The heir of said Roy Malby was his father, Charles, who, since the decision of this case, has conveyed his interest to defendant Oliver. It will be observed from these dates that the daughter, Elizabeth, and her child, Roy, died before' the owner of the life estate, John Osmun. If Elizabeth had a vested interest which passed to her heirs on her death, complainant is entitled to but one-fourth of the property in controversy; otherwise she is entitled to one-third. We think the estate of Elizabeth was a vested estate, under section 8795, 3 Comp. Laws (see, also, Hitch cock v. Simpkins, 99 Mich. 198 [58 N. W. 47]), and that such estate, under section 9064, descended on her death to her child, and on the death of the child to its father, Charles Malby. It results that the interest of complainant in the land in controversy is an undivided one-fourth.

Is defendant Oliver entitled to an allowance for improvements ? Those improvements were made while the defendant was in possession as a tenant of the life estate of John Osmun, and at the same time owning an undivided half of the remainder. This precise question was determined by this court in Curtis v. Fowler, 66 Mich. 696 (33 N. W. 804). The court denied the right to an allowance for improvements, saying:

“As tenant in common and purchaser in possession under the deed from Melissa Curtis, conveying her life estate, the defendant was not entitled to recover for improvements made upon the premises previous to the death of Melissa. As plaintiffs admitted that defendant was entitled to compensation for improvements made after her Meath, we do not pass upon that question. But where defendant was entitled to hold possession of the whole premises as life tenant, he cannot recover for compensation for improvements made as such tenant. .This is because the life tenant is bound to keep the premises in repair, and is not permitted to commit waste; and any improvement such tenant makes, of a permanent character, inures to the benefit of the remainderman. It is true that at the same time he held an undivided interest of the land as tenant in common, but he was bound to know the • nature and extent of the title he purchased, and that he only obtained by his deed from Mrs. Curtis an undivided one-fourth of the fee. And he could not, while holding his co-tenants out of possession as life tenant, acquire any adverse rights to them by virtue of his being a tenant in common with them. The statute relative to compensation for improvements does not apply to such a case.”

Curtis v. Fowler was an ejectment suit, and was, as indicated in the above quotation from the opinion, governed by the statute. If this were a suit at law, that decision would be decisive against defendant. But it is held (see Ford v. Knapp, 102 N. Y. 140 [6 N. E. 283, 55 Am. Rep. 782]; Hewlett v. Wood, 62 N. Y. 75) that in equity the rule is more favorable to those claiming allowances for improvements. In Killmer v. Wuchner, 79 Iowa, 722 (45 N. W. 299, 8 L. R. A. 289, 18 Am. St. Rep. 392), on facts much like those in 'the case at bar, an, allowance was made for improvements. That decision, however, is placed upon the ground that the tenant for the life estate in possession had a deed which in form conveyed the fee, and he in good faith made the improvements, supposing himself to be the owner of the fee. We think these circumstances distinguish the Iowa case from the case at bar, and make the principles of that case inapplicable. We are bound to infer from the record that defendant Oliver, when he purchased, knew that his brother John only had a life estate, and that he knew that complainant had an interest in the remainder. '

In support of his claim that he should be allowed for improvements, defendant cites cases in which a co-tenant in possession has received such allowance. The likeness between cases of that character and the case at bar arises from the circumstance that, though the defendant Oliver Osmun was in possession as a tenant for the life of his brother John, he was also one of the co-owners with complainant, of the remainder. Those cases, viz., cases in which a tenant in common in possession has received allowance for improvements, differ from this in many particulars. In those cases there is justice in saying, and it has been said (see Ford v. Knapp, 102 N. Y. 140 [6 N. E. 283, 55 Am. Rep. 782]), that the tenant out of possession, by his unthrift and neglect, has compelled the tenant in possession to make the improvements. That cannot be said in a case like that before us, where the complainant had no right whatever to possession. When such a co-tenant receives an allowance for improvements, he is chargeable with rent. See Eighmey v. Thayer (decided March 8, 1904), post (98 N. W. 734). Here defendant claims that allowance freed from any such obligation. This distinction has a most important bearing upon the equities of the case. By this allowance of rent before partition, and by tbe subsequent partition, the tenant in common who did not participate in making the improvements receives their full benefit. That is not the case where a tenant for life has had, as in this case, the use of those improvements for 24 years. It is not at all improbable that he has been fully compensated for them in the enhanced rental value during this time. It certainly is inequitable that he should be repaid for them a second time because, perhaps, those improvements now enhance the. value of the property.

If defendant had owned no other interest than a tenancy for life, his claim for improvements would have had no foundation whatever. As a co-owner of complainant in the remainder, he had no possessory right. As such co-owner, he had no right to make these improvements. As such co-owner, he derived no benefit from their erection. We think we are bound to say that he made these improvements, not because of his interest in the remainder, but because of his possession under the life estate. The equitable principle which permits a tenant in common to charge his co-tenant for improvements has, therefore, in our judgment, no application. This conclusion is supported by Scott v. Guernsey, 48 N. Y. 106. There, during the existence of a life estate, one of the co-owners of the remainder, by the consent of the life tenant, and without the consent of the other remaindermen, made improvements upon the property. In a suit for partition, it was held that no allowance should be made for these improvements, the court saying:

“The appellants are not within the reason of any of the adjudged cases where relief has been granted in partition for money expended in improvements by one of several tenants in common.”

We are therefore of the opinion that defendant is entitled to no allowance for improvements.

The other questions arising upon the settlement of the decree do not demand discussion.

The other Justices concurred.


author: Carpenter, J.

text:
    STRADLEY v. CARGILL ELEVATOR CO.
    1. Partnership Associations — Treasury Stock — Misapplication of Funds.
    Stock in a partnership association organized 'to deal in land was assigned by the members to a trustee as treasury stock, to be sold, and the proceeds used in paying debts of the” association, and for such other uses as the board of managers might direct. The proceeds were applied to a canal project, which was contemplated in the original scheme, and upon which the success of the association depended. Held, that there was no misapplication of funds.
    а. Equity Practice — Right to Relief.
    Equitable relief will not be granted on facts not set up in the bill.
    3. Partnership Associations —Mortgages—Foreclosure — Fraud.
    The fact that land of a partnership association was bid in on mortgage foreclosure, for less than its value, by a member of the association who had formerly been chairman of the board of managers, and who was personally responsible for the debt secured, does not prove that there was fraud in the sale.
    4. Same — Payment.
    Where money was advanced to a partnership association to purchase mortgages covering its property, with the understanding that the mortgages should be assigned by the mortgagees to the persons making such advances, which was done, held,, that the mortgages were not paid, but were still operative in the hands of the assignees.
    8. Same — Consideration.
    Lands were purchased for a partnership association, before its organization, by one of the members, who executed purchase-money mortgages, and the association agreed to indemnify him for his personal liability thereon. At the foreclosure sale there was a deficiency, to secure which the association executed its mortgage to such member. Held, that the latter mortgage was supported by a sufficient consideration.
    б. Same — Conveyance of Equity.
    Conveyances by a partnership association of its equity of redemption in mortgaged lands in satisfaction of the mortgage debt were sustained; there being no such disparity of value as to indicate fraud.
    7. Same — Assignment of Mortgages — Avoiding Taxation. The assignment by a‘ partnership association of mortgages
    owned by it to one of its managers, to avoid paying taxes thereon, however reprehensible, does not operate as a fraud on the members of the association.
    8. Same — Articles of Association — Filing.
    Where the articles of a partnership association were filed with a person holding both the office of register of deeds and county clerk, there was a compliance with 3 Comp. Laws, § 6079, requiring their filing with the register of deeds, notwithstanding, when the offices were separated, the record of the articles was taken by the clerk.
    9. Same — Meetings of Members — Validity—Estoppel:
    A member of a partnership association, who is represented by a duly authorized proxy at meetings óf the members held outside of the State, is estopped from contending that such meetings were contrary to law, or that the by-law authorizing him to act by proxy was invalid.
    10. Same — Notice.
    Under 3 Comp. Laws, § 6088, requiring written notice of a meeting of the members of a partnership association to be served on each member 10 days prior thereto, notice by mail, pursuant to a by-law of the association, is sufficient.
    11. Same — Meetings of Managers — Validity—Estoppel.
    A member of a partnership association who signed, at a place outside the State, articles of association appointing a board of managers, all of whom lived at such place, and who presented a claim at one of the meetings of the board held there, and acted upon authority given him at another such meeting, cannot question the validity of action taken at any such meeting because held outside the State.
    13. Same — Conveyances—Authority of Managers.
    The articles of a partnership association, signed by the members, provided that the purpose and business of the- association should be the buying, owning, selling, mortgaging, etc., of real and personal property. The association elected a board of managers, with authority to make such rules for the government and management of the business concerns of the association as they might think expedient, and for its general welfare, not contrary to the articles of association, etc. The chairman and secretary were authorized to sign notes, deeds, leases, mortgages, or other papers required to be executed for or in the name of the association. Held, that the board of managers had the power to authorize the execution of deeds and mortgages.
    13. Same — Special Meeting op Managers — Presumptions.
    The mere fact that all of the managers of a partnership association were not present at a special meeting of the board does not raise a presumption that the meeting was irregular.
    14. Same— Conveyances — Validity.
    A conveyance by a partnership association in payment of a bona fide indebtedness is not invalid, either at law or in equity, because one of the managers who authorized the same was a member of the firm whose debt was paid thereby.
    Appeal from Chippewa; Steere, J.
    Submitted October 22, 1903.
    (Docket No. 67.)
    Decided January 5, 1904.
    Bill by John G. Stradley against the Cargill Elevator Company and others to set aside certain conveyances and for an accounting. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      John W. Shine, for complainant.

      George A. Cady '{John H. Goff, of counsel), for defendants.
   Carpenter, J.

Early in 1887, complainant and most of the individual defendants organized the Sault Ste. Marie Land Company, Limited, a limited partnership, under the laws of this State. Said association acquired the ownership of a large amount of land situated in the city of Sault Ste. Marie, in this State. Shortly after its organization, each member of said association transferred to defendant Samuel D. Cargill, as trustee, 50 per cent, of his stock, for the purpose of having the same sold for the benefit of the association. Said treasury stock so held by Cargill as trustee was sold to complainant’s associates in said enterprise at the rate of 12£ cents on the dollar. From 1892 to 1897, by many different transfers, the title to nearly all the land belonging to the association passed to one or more of its codefendants in this suit; and in nearly all these cases the title passed directly to, or for the benefit of, one or more of complainant’s associates in this partnership association, limited. Complainant instituted this suit in chancery in 1899, charging that each of these transfers, and the sale of said treasury stock, were steps in a scheme of fraud devised by his associates to wreck the association and to acquire its property, and that all the transfers “were ultra vires of the said partnership association, and were executed without proper authority, and are therefore void.” He asked the court to decree payment for the stock at its par value, and to set aside said transfers. An answer was filed, denying the material facts stated in the bill. The case was heard on pleadings and proofs, and a decree rendered dismissing the bill. From that decree an appeal was taken to this court.

We will first turn our attention to the charge of fraud, and will, so far as needful, discuss each transaction.

Sale of the Treasury Stock. The bill avers that this stock was divided for a nominal consideration, and never applied for the purpose for which it was contributed. This stock was assigned to be sold, and the proceeds used “ in paying off mortgages, * * * in paying any other indebtedness of the company, and for such other uses as the board of managers may direct.” The stock was sold at the rate of 12-J cents on the dollar, which was all, if not more than, it was worth. It is contended that we are to infer fraud because the proceeds arising from this sale were misapplied. The charge of misapplication is based upon the fact that the money derived from this sale went to the benefit of a project in which complainant and his associates in this enterprise were interested, namely, a project to build at Sault Ste. Marie a water-power canal. We are convinced that this application was made with the best of motives, and, moreover, that, under the circumstances, it was entirely legal. The success of the partnership association depended upon the success of the canal. The original scheme contemplated the joint prosecution of the two projects, and that the contributions should be divided equally between the two. On this basis, the land company was indebted to the water-power canal project more than the amount it received from the sale of this stock.

The Real-Estate Transfers. While complaint is made in the brief of eleven separate transactions, the bill complains of but nine. It is scarcely necessary to say that the issue in this case is not broader than that made by the averments in the bill. We will adopt the phraseology of complainant’s counsel, and enumerate and designate those transfers as follows: No. 1, “the Cargill Elevator property No. 1;” No. 2, “the Cargill Elevator property No. 2;” No. 3, “the S. D. Cargill property;” No. 4, “the Robert Eliot-Eitch property;” No. 5, “ the Robert Eliot property;” No. 6, “the Ellsworth property;” No. 7, “the La Crosse Land Company property;” No. 8, “the W. S. Car-gill property.” Included in the enumeration 1 are two separate transfers. The facts, however, relating to the two are so similar that they demand no separate discussion, and these nine transfers will therefore be considered and treated as if they were but eight.

Of these transfers, five, viz., 1, 2, 4, 6, and 7, were effected by purchase at the foreclosure sale of mortgages; two, viz., 3 and 5, were effected by deeds transferring the equity of redemption to a grantee who already held the mortgage of the association on the property conveyed; and one, viz., 8, was a deed of the association in satisfaction of the indebtedness owed by it. Four of the mortgages at the foreclosure of which title was acquired (viz., Nos. 1, 2, 4, and 6) were purchase-money mortgages, one of which (No. 4) was given by the association to clear up a cloud on its title, and three (viz., Nos. 1, 2, and 6) existed before the association acquired title.

It is charged, as evidence of fraud, that the association, through its managers, failed to use available funds to pay these mortgages. It is a complete answer to this charge to say that, in onr judgment, the association did not have funds available to make said payment.

It is true that, at the foreclosure sales of the purchase-money mortgages, the land brought not only much less than it cost, but, in our judgment, less than it was worth. This, however, affords no convincing evidence of fraud. Defendant Samuel D. Cargill obtained nearly the entire benefit of the purchase at this low figure. He was personally responsible for the indebtedness secured by the mortgages through the foreclosure of which he acquired title. Prior to this he had been chairman of the board of managers of the partnership association. At the time of the sales he had nothing in his hands belonging to the association, and he was at liberty to act for himself. The sales were public, and there was nothing to prevent complainant or any other person from making competitive bids. In our judgment, Cargill had a right, under these circumstances, to purchase, either in his own name or in that of others, on terms demanded by his own best interests. .

It is charged that two of these purchase-money mortgages (viz., Nos. 2 and 6) were paid by the association itself, and were then by its consent transferred to third parties, and subsequently foreclosed. Assuming that the averments in the bill permit this contention to be urged, it is an all-sufficient answer to say that we are convinced that these mortgages were not paid before said transfer. Our understanding of the facts is this: That the assignees advanced to the association the money to purchase the mortgages, under an agreement that they should be secured by an assignment from the mortgagees; that, in accordance with this agreement, the mortgages were purchased and assigned. We see nothing in these transactions to impair the legal force and effect of the mortgages.

The other title acquired at the foreclosure sale (viz., No. 7) was under a mortgage given by the association to one George W. Burton as trustee. This mortgage secured the payment of bonds to the amount of $47,500. It is a sufficient answer to complainant’s claim of fraud respecting this mortgage to say that the proof is conclusive that these bonds were sold, and that the association received the proceeds, and properly used them.

It is* contended that transfer No. 3, to Samuel D. Car-gill, — effected by first mortgaging the property to Cargill, and then later conveying to him the equity of redemption, — was without consideration, and that the property greatly exceeded in value the pretended consideration. We think there was a sufficient consideration for this mortgage. ' The indebtedness secured by it arose as follows: Several pieces of the property of the association were purchased, before its organization, in the name of Cargill, who executed purchase-money mortgages. The association agreed to indemnify Cargill for his personal liability on these mortgages. There was a deficiency at the foreclosure sale, for which thet association was legally liable, and this deficiency was the indebtedness secured by said mortgage. The equity of redemption was conveyed because the association had no means of paying the mortgage. There was no such disparity between the value of the property and the indebtedness secured by the mortgage as to afford evidence of fraud.

Transfer No. 5 was a conveyance to Robert Eliot of the equity of the association, as mortgagor, in lands on which the grantee already held a mortgage. The mortgage secured the payment of money advanced by the mortgagee, and used by the association in paying its indebtedness. The deed was made under an arrangement between the association and Eliot that the same would be accepted in .satisfaction of his mortgage indebtedness. We are satisfied that the managers of the association acted in good faith in making this conveyance, and that the land was not worth the amount of the incumbrance upon it.

The eighth and last transfer (No. 8) was a deed directly from the association to one W. S. Cargill in satisfaction of an indebtedness due to a partnership composed of himself and his father, W. W. Cargill. It is sufficient to say of the facts of this transaction that we are convinced that the indebtedness was a bona fide indebtedness, and the-property transferred worth no more than the indebtedness which it paid.

The ninth and tenth transactions complained of are outside the scope of the bill, in our judgment, and therefore no relief could be given respecting them. Moran v. Palmer, 13 Mich., at page 371 et seq. It is not improper, however, to refer to them. While these transactions are treated as two in complainant’s brief, in one sense they are one, and may be treated together. The association, assigned to W. W. Cargill, its manager, a large number of mortgages securing payment of the purchase money of lands sold by it. The purpose of this assignment was to secure the repayment of indebtedness owed Cargill, and to avoid the payment of taxes. While we cannot approve the latter motive, we cannot regard it as a fraud upon the members of the association, for whose benefit it was done. Some of these mortgages were subsequently foreclosed,, and the title taken in the name of W. W. Cargill. A careful examination of the account convinces us that Car-gill has accounted in this case for all of said mortgages remaining • unforeclosed. There are, however, certain pieces of real estate acquired at the sale, now standing in his name, which belong to the association. As such a decree would be beyond the scope of complainant’s bill, we shall not undertake to decree their conveyance.

We will now consider the legal objections urged by complainant against these transfers:

It is urged that the partnership association limited was never legally organized, because its articles are recorded in the office of the county clerk, instead of the register of deeds, as required by law. Section 6079, 2 Comp. Laws. It is a complete answer to this claim to say that the articles were in fact properly filed. At the time they were filed, the offices of the county clerk and register of deeds of Chippewa county were filled by the same person. When the offices were separated, the record of these articles was taken by the county clerk. This mistake of the officer who had the custody of these papers obviously had no effect upon the legality of the organization.

The other objections relate only to the validity of the mortgages and deeds executed by the partnership association. These objections will be stated in connection with their disposition:

It is contended that some, if not all, of these mortgages and deeds were altogether void, because the authority for their execution was given at meetings of members of the association which, contrary to law, were held outside the State of Michigan. We do not think complainant is in a position where he can make this claim. At all or nearly all the meetings of members where action was taken bearing upon these transfers, complainant was represented by a duly authorized proxy. This, in our judgment, estops him from making the contention under consideration (see Columbia National Bank of Tacoma v. Mathews, 85 Fed. 934, 29 C. C. A. 491; Handley v. Stutz, 139 U. S., at page 422 [11 Sup. Ct. 530]), and from urging, as he does, the invalidity of the by-laws which authorized him to act by proxy. Neither can we agree with the contention of complainant that action taken at these meetings was void because notice calling them was served upon the members not personally, but through the mail. It was, in our judgment, entirely competent for the association to provide in its by-laws, as it did, for this method of serving said notice. Otherwise it would be almost impossible, under section 6083, 2 Comp. Laws, to procure a legal meeting of members, where, as in this case, they reside at different points in different States.

It is claimed that all the mortgages and deeds executed by the partnership association, limited, are void, because they were authorized at a meeting of the board of managers held outside the State. We must hold that complainant is in no position to make this claim. He himself signed, in La Crosse, Wis., the articles of association, which appointed the board of managers. Every one of these managers lived in La Crosse, and it is to be presumed that he knew that they intended holding their meetings there. Complainant presented a claim at one of those meetings, and acted upon authority given him at another. He must be held to have sanctioned the conduct of which he now complains.

It is urged that the mortgages and deeds are void because the board of managers of the partnership association did not have authority to convey or mortgage its land. In the articles of association signed by complainant and ■ his associates we find this statement: “The purpose and business of this association shall be the buying, owning, holding, improving, selling, exchanging, leasing, mortgaging, and dealing in real and personal property in the State of Michigan and elsewhere.” It elected a board of managers, whose authority, though not precisely specified, we must infer was intended to be very broad, for they were empowered to “make such rules for the government and management of the business concerns of the association as they may think expedient, and for the general welfare of the association, which shall not be contrary to these articles and the laws by virtue of which this association is organized;” and its chairman and secretary were authorized to sign “notes, deeds, leases, mortgages, or other papers required to be executed for or in the name of the association.” As the business of the association consisted in selling and mortgaging real estate, we are bound to infer that its board of managers, created to do that business, had power to authorize the execution of mortgages and deeds, and that they obtained such power from a writing signed by the complainant.

It is contended that certain of the mortgages and deeds of the association were void because they were authorized at a special meeting of the managers, at which all were not present. It is urged that we should presume that these meetings were irregular. We think all the objections urged under this head are answered by our own decision in Wells v. Rodgers, 60 Mich., at page 530 (27 N. W. 673), where it is said:

“The record shows that a majority of the directors were present at such meeting, and that every director present voted to enter into this agreement. * * * There was no proof of notice, yet it did not appear affirmatively that there was a want of notice. The burden of proof is upon those who deny the regularity of a meeting, for want of notice, to prove it. Sargent v. Webster, 13 Metc. (Mass.) 504. The law presumes, in the absence of any proof to the contrary, that the proper notice was given, when a quorum are present at the meeting. 1 Rorer, Railroads, 191; Citizens’ Mut. Fire-Ins. Co. v. Sortwell, 8 Allen, 217; Com. v. Woelper, 3 Serg. & R. 29 (8 Am. Dec. 628).”

It is contended that the conveyance to W. S. Car-gill, enumerated as No. 8 in this opinion, is void because W. W. Cargill, one of the association’s managers, who authorized the transfer, was a member of the partnership whose indebtedness was thereby paid. The evidence satisfactorily proves, as heretofore stated, that the association owed the debt which this conveyance paid. The objection urged would not affect the validity of the deed in a suit at law, nor should it be entertained in a court of equity. Cargill’s right to this property, as a creditor of the association, is manifestly superior to that of complainant, as one of its members. If the deed were set aside, the original indebtedness would be revived, and the property in question, or other property of equal value, should be at once appropriated to pay it. We think, too, that the objection under consideration is answered by Lucas v. Friant, 111 Mich., at page 436 (69 N. W. 735).

We do not think any other legal objection urged by complainant demands discussion.

It results from these views that the decree of the court below dismissing the bill should be affirmed. /:

The other Justices concurred.


author: Grant, J.

text:
    PEOPLE v. HINSHAW.
    1. Criminal Law — Instructions to Jury.
    Even in criminal cases, counsel for the defense should call the court’s attention to points on which an instruction is desired.
    3. Pure-Food Laws — Vanilla Extract — Coloration—Sufficiency of Information.
    An information charging the coloration of vanilla extract, whereby its inferiority was concealed and it was made to appear better than it really was, sufficiently alleges the inferiority of the extract.
    3. Same — Evidence—Question for Jury.
    Evidence that the presence of coal-tar dye in vanilla extract made the extract appear stronger and of greater value than it really was, warrants the submission to the jury of the question whether the extract was inferior.
    4. Same.
    Though coal-tar dye is harmless, its use in vanilla extract, making it appear stronger than it really is, is a violation of Act No. 193, Pub. Acts 1895, § 3, as amended by Act No. 118, Pub. Acts 1897, prohibiting the adulteration of food by coloring, whereby inferiority is concealed, or it is made to appear better than it really is. Peoples. Jennings, 133 Mich. 663, distinguished
    5. Same — Constitutional Law — Discrimination.
    The provision in question is not repugnant to the 14th amendment to the Federal Constitution, notwithstanding the proviso that nothing therein shall prevent the coloring of pure butter.
    Exceptions before judgment from Saginaw; Snow, J.
    Submitted November 19, 1903.
    (Docket No. 235.)
    Decided January 5, 1904.
    Emory H. Hinsbaw was convicted of violating the pure-food law.
    Affirmed.
    Respondent was prosecuted and convicted of the unlawful sale of—

      “Extract of vanilla, which was then and there adulterated, within the meaning of Act No. 193 of the Public Acts of the State of Michigan of the year 1895, as amended by Act No. 118 of the Public Acts of the year 1897, ,in this, to wit, that said extract of vanilla was colored by the addition of a foreign coloring matter, to wit, coal-tar dye, whereby its inferiority was concealed, and whereby said extract of vanilla was made to appear better and of greater value than it really was.”
    Two errors are assigned: (1) That the court erred in instructing the jury; (2) that the act is unconstitutional as repugnant to the fourteenth amendment of the Constitution of the United States.

      iEugene Wilber, for appellant.

      Charles A. Blair, Attorney General, and Frank A. Rocktoith, Jr., Assistant Prosecuting Attorney, for the people. '
   Grant, J.

The instruction complained of is as follows :

“Now, before the inferiority of an article can be concealed, it must be necessarily first ascertained as to whether or not there is an inferiority in the article. If it is an inferior article, and that inferiority is concealed by reason of the addition of foreign substance in this vanilla, and you are satisfied from the proof beyond a reasonable doubt of the fact, then the defendant would be guilty, although he had no knowledge as to the foreign substance being in the bottle.”

It appears that no such claim was made on behalf of respondent upon the trial. No request was asked covering the points now raised. The only objections shown by the record to have been made are: First, that the title is not broad enough to cover the provisions in the amendment of 1897 (Pub. Acts 1897, Act No. 118); second, that the legislature has no power to prohibit and punish acts in themselves harmless; third, that the act is unconstitutional. Even in criminal cases, it is the duty of counsel to call the attention of the court to the points on which an instruction is desired. People v. Ezzo, 104 Mich. 341 (62 N. W. 407).

We, however, are of the opinion that the information charges the coloration to make an inferior article appear better and more valuable than it really was, and is sufficient; and also that there was evidence to sustain the allegation. The State chemist testified that the effect of the coal-tar dye was to make the article appear of greater value than it really was, and that people would think it stronger than it really was. It is true, his testimony was weakened by cross-examination, but not sufficiently to take the question from the jury, especially in view of the fact that no other purpose than to make the article appear better is shown.

The use of coal-tar dye being harmless, counsel for respondent insists that the case comes within the rule of the recent case of People v. Jennings, 132 Mich. 662 (94 N. W. 216). That case had not been decided when this case was tried. No such theory was advanced upon the. trial. Even if it were, we, however, think the case is clearly distinguishable from People v. Jennings. The color given to lemon extract, which of itself is almost colorless, is no indication whatever of the strength of the extract or its value. Its color is a mere whim or caprice of the trade, and no more indicates the character and value of the extract than does the coloring matter used to color butter indicate its character and value. In this case vanilla resembles the color of the bean from which it is produced. Its strength and value are judged, to some extent at least, under the evidence in this case, from its color. No other object is apparent from the use of the coloring than to make it appear of a quality better than it really is.

It is urged that the act is unconstitutional on account of the proviso “that nothing in this act shall prevent the coloring of pure butter.” This act is similar in its provisions to that involved in People v. Rotter, 131 Mich. 250 (91 N. W. 167), and People v. Phillips, 131 Mich. 395 (91 N. W. 616). The constitutionality of such acts was there sustained, and a discussion is unnecessary. Capital City Dairy Co. v. Ohio, 183 U. S. 238, 246 (22 Sup. Ct. 120), is decisive of the question.

The conviction is affirmed.

The other Justices concurred.

         1, e., that there was no charge in the information or testimony on the trial to warrant the instruction.


text:
    BUTTERS SALT & LUMBER CO. v. VOGEL.
    Declarations of Agents — Admissibility.
    Declarations of general agents, as well as of special agents, which are not part of the res gestee of a transaction for the principal, are inadmissible against the principal.
    Error to Mason; McAlvay, J.
    Submitted November. 20, 1903.
    (Docket No. 151.)
    Decided January 5, 1904.

      Assumpsit by the Butters Salt & Lumber Company against Albert Yogel for goods sold and delivered. Prom a judgment for plaintiff, defendant brings error.
    Reversed.

      Fitch & Reek, for appellant.

      A. A. Keiser and H. C. Hutton, for appellee.
   Carpenter, J.

Plaintiff sued to recover pay for goods delivered to one Wicksall. A former judgment for the plaintiff was reversed in this court (see 130 Mich. 33 [89 N. W. 560]) on the ground that, according to the testimony of the plaintiff, the agreement of defendant was void, as it was simply a verbal undertaking to answer for the debt of Wicksall. The second trial, like the first, resulted in a verdict and judgment for plaintiff. The testimony taken on this trial was that of the same witnesses who testified on the former trial, but we are of the opinion that a case was made from which the jury could have inferred that defendant’s obligation was that of an original purchaser. There was therefore no error in refusing to direct a verdict for defendant.

One of plaintiff’s witnesses was permitted, against defendant’s objection, to relate the following conversation between himself and one Gibson, defendant’s general agent and manager:

“We talked about logging in general, and I made the remark that he got some cheap logging over on that section 1,' — Wicksall’s logging; and Mr. Gibson made the remark that it might not be so cheap by the time they got everything settled up; there were several accounts yet to pay, — ‘ a large one over at the company’s store, which we will have to pay.’ That was the principal part of the conversation.”

In referring to this testimony in his charge, the trial judge said: “ That statement made by him would be binding upon the defendant, if he made the statement.”

We think the learned judge erred in admitting this testimony and in making this statement. Gibson, though defendant’s agent, had no original knowledge whatever of defendant’s liability for the claim in suit. .There is no evidence that he ever acquired any such knowledge. The statement in question was no part of the res gestee of any transaction. The law.excluding such evidence is settled by numerous decisions of this court.

“The statements and declarations made by an agent while he is contracting for his principal, within the scope of his authority, and having reference to the subject-matter of such contract, constitute a part of the res gestee, and may be given in evidence to affect his principal; but not what he says at another and subsequent period. His declarations are received, not as admissions of his principal, but as part of the res gestee.” Horner v. Fellows, 1 Doug. 53, 54.
“ The declarations of an agent, made at the time of doing an act within the scope of his authority, and relating to the subject-matter of the act, are evidence as a part of the res gestee; but statements subsequently made by him are not, because the latter are made without authority, and for that reason stand on the same footing with the declarations of any other person.” Benedict v. Denton, Walk. Ch. 337.
“But the admissions of an agent are only evidence against the principal when they constitute a part of the res gestee. They must accompany the transaction in which the agent acted. What he states at a subsequent time is inadmissible. * * * The rule that would allow an agent, after a transaction is closed, to admit away the rights of his principal, would be too dangerous to be tolerated for a moment.” Converse v. Blumrich, 14 Mich. 122 (90 Am. Dec. 230).

See, also, Ablard v. Railway Co., 104 Mich. 148 (62 N. W. 172).

There is no force in the suggestion of plaintiff that this rule is limited in its application to special agents. There is precisely the same reason for applying it to general agents, and that it does apply to them was expressly held in Benedict v. Denton, supra. While we must regard these authorities as controlling, it is not improper to state that they are not at variance with the cases cited from other courts by plaintiff’s counsel. See Kirkstall Brewery Co. v. Furness Railway Co., L. R. 9 Q. B. 468; Dowdall v. Railroad Co., 13 Blatchf. 403 (Fed. Cas. No. 4,038); Morse v. Railroad Co., 6 Gray, 450; McGenness v. Adriatic Mills, 116 Mass. 177; Northrup v. Insurance Co., 47 Mo. 435 (4 Am. Rep. 337). In each of these cases the admission received in evidence was an answer of an agent to an inquiry relating to a matter of business within the scope of his authority. It was therefore a part of the res gestee, and admissible under the rule recognized in this State.

We have examined the other errors complained of in defendant’s brief. We do not think them well grounded, nor that they raise any question which demands discussion.

The judgment is reversed, with costs, and a new trial granted.

The other Justices concurred.


author: Hooker, J.

text:
    PEOPLE v. HOSSLER.
    1. Criminal Law — Witnesses—Duty on People — Respondent’s Wine.
    In a prosecution for manslaughter, it was not error for the court to refuse to compel the people to indorse the name of respondent’s wife on the information and to call her as a witness, she having been the only third person present at the difficulty, though respondent expressly waived his right to object to her being called as a witness against him.
    2. Same — Recalling Witnesses.
    Where a child was called as a witness for the prosecution, and, on her stating that she did not know what it was to be sworn or to take an oath, the prosecutor offered to permit respondent’s counsel to examine her, which they declined, it was not error for the court subsequently to refuse to permit respondent’s counsel to recall the child for cross-examination; the court at the same time stating that they might call her as their own witness if they so desired
    3. Same.
    Where respondent on a trial for manslaughter knew that a certain person, whose name whs not indorsed on the information, was an eye-witness to a part of the transaction, but made no request that she be produced as a witness until the prosecution had rested, at which time she was 50 miles away, and' it was claimed that she was old, feeble, and unable to travel, there was no error in refusing to require the people to produce her.
    4. Same — Homicide—Question nor Jury.
    Where, in a prosecution for homicide, the defense claimed that a fracture of deceased’s skull and a cut near the ear must have been caused by respondent’s striking deceased’s head on the uneven surface of a bam floor, while the people claimed that such injuries must have been inflicted by a blow with some instrument or respondent’s boot, it was not error for the court to submit such issue to the jury, though no witness testified to the manner in which the injuries were inflicted.
    5. Same — Evidence—Husband and Wire.
    On a prosecution for manslaughter, a remark made by respondent’s wife, in his presence, to a third person, at the conclusion of the affray between respondent and deceased, not to let respondent “go at the old man any more,” was admissible in evidence against respondent.
    Exceptions before judgment from Bay; Shepard, J.
    'Submitted November 19, 1903.
    (Docket No. 231.)
    Decided January 5, 1904.
    George Hossler was convicted of manslaughter.
    Affirmed.

      Lee JE. Joslyn and M. D. Snow, for appellant.

      Lewis P. Coilmans, Assistant Prosecuting Attorney, for the people.
   Hooker, J.

The defendant is before us upon exceptions before sentence, having been convicted of the offense of manslaughter. The defendant and deceased, who were neighbors, met at the house of one Hodor, and partook freely of the contents of a keg of beer procured for the occasion. An argument regarding the strength of the respective navies of the United States and Great Britain culminated in a fight, but the parties were separated, and the defendant was induced to go home; the deceased being meantime restrained by the bystanders. Soon after the defendant left, the deceased went to defendant’s farm, and found the defendant putting out his horses. Another fight ensued, and deceased received a mortal injury; his skull being fractured near the ear. There were contusions upon the back of his head and upon his face, and his condition indicated that he was used very roughly, while defendant was practically uninjured. The defendant, at the suggestion of his wife, who witnessed the affray, gave immediate information to friends of the deceased, who removed Mr. Payne, and he died from his injury the next day.

Before the trial was commenced, the defendant’s counsel asked that the prosecution be required to indorse the name of the defendant’s wife upon the information as a witness for the people; she being the only third person present at the fight at the barn. Subsequently, during the trial, the application was renewed; it being stated by counsel that defendant expressly waived his right to object to the calling of his wife as a witness against him. The court denied the request. There was no error in this. The case of People v. Wolcott, 51 Mich. 618 (17 N. W. 78), is decisive of the question. In that case the name of respondent’s wife was indorsed on the information, but the prosecuting attorney declined to call her, and the court refused to compel him to do so. In the opinion, Mr. Justice Cooley said: “The relationship of the witness to the accused was sufficient reason for excusing her.” We are of the opinion that this language was intended to mean that the relationship was such as to justify the prosecutor in declining to call the witness on behalf of the people. The record in that case shows that the trial court “refused to require that the witness be called for the people,” and? if that is the rule notwithstanding the indorsement of the wife’s name, there is quite as much reason for applying it to a case where the defendant has not been led to expect that the prosecution intended to make his wife their witness.

Mary Hodor, a child of 10 years of age, was present at the preliminary quarrel at her father’s house. She was called as a witness for the prosecution, and, in answer to questions put by counsel for the people, stated that she did not know what it was to be sworn or to take an oath. Thereupon counsel for defendant were told that they might examine her, and stated that they, did not care to ask any questions. Later in the proceedings, counsel for defendant said that they would like to ask Mary Hodor some questions. The court said:

“You stated yesterday you did not want to ask her any questions on either side. If you want her, call her; the prosecution need not call her.
“ Mr. Joslyn: The prosecution has already called her.
The Court: If you want her here as a witness, you can do so. She was excused yesterday. You said you ■did not desire to have her put on, and let her go.
“Mr. Joslyn: We do not desire to call her as our witness.
The Court: If you call her, you will have to call her as your witness.
Mr. Joslyn: I wish it to appear that she was called .yesterday, and that we then stated that we did not desire to ask any questions, but we immediately notified the prosecuting attorney to have her kept here.
The Court: The court has no knowledge of the notification of the prosecuting attorney.
' “ Mr. Coumans: It was not done until after court adjourned last night.
The Court: The little girl can retire. She need not testify.
Mr. Joslyn: We desire to have it appear further that she was a witness to the trouble that took place at Hodor’s house—
The Court: If you desire to examine her on your behalf, you may examine her. *
“ Mr. Joslyn: We do not desire to.
The Court: Very well. She may be put on the stand by you and examined. You stated yesterday, when the prosecuting attorney put her on the stand, that you did mot care to examine her. Now, if you desire to examine her, you may examine her as your witness.
“Mr. Joslyn: But we do not have the privilege of cross-examination.
The Court: You heard what the court said.”

Afterwards the following occurred:

The Court: The little girl, Mary Hodor— If you want to put her on the stand, you must do it now, in order that she may be sent home. She must not be kept here any longer. If you desire to use her testimony in any way— She is only 10 years old, and, if you desire to use her, you must put her on the stand now.
‘£ Mr. Joslyn: Under the ruling of the court, in holding that it is necessary for the defense to call her as our witness, and in view of the fact that she has been with the people’s witnesses all the time, and we have had no opportunity to talle with her, we decline to call her.
The Court: She may be permitted to go home.”

It is claimed that this was error. It is a common thing for witnesses to be recalled for cross-examination, and we are unable to find in the record any reason for denying it in this instance; but the defendant’s counsel were given the opportunity of calling her, and it was within the power of the circuit judge to permit leading questions to be put to her if occasion demanded. There may have been reasons, not shown by the record, justifying the circuit judge in his refusal to permit counsel to recall this witness for cross-examination at that stage of the case, and after counsel had refused to cross-examine her while the people were making their case. It is not a matter of right to call witnesses repeatedly or unseasonably for cross-examination, and, where there is nothing to indicate that a defendant has suffered injury by the conduct of the trial in this respect, a conviction should not be reversed for a refusal to indulge counsel in repeated or unseasonable cross-examinations. *

Complaint is made that the court refused to compel the prosecution to produce and call as a witness Mrs. Andrew Payne, who was present at the house of Hodor when the first trouble occurred. Her name was not indorsed on the information, and, although the defendant knew that she was present on the occasion referred to, this application was not made until the people rested. At that time she was 50 miles distant, and the court properly refused to require the prosecution to produce her; it being claimed that she had not been in attendance, and was old and feeble, and unable to travel.

In his instructions to the jury, the court explained the theories of the respective parties. He said that the defense claimed that the fracture of the skull and the cut near, the ear must have been caused by the defendant’s striking the deceased’s head upon the uneven surface of the barn floor, while the people claimed that such a theory was unreasonable, and that these injuries must have been inflicted by a direct blow by some instrument or the boot of the defendant. Defendant’s counsel claim that there was no evidence that a club or other weapon was used.. ¥e are of the opinion that it was competent to leave this question to the jury, although no witness testified to the manner in which these.injuries were inflicted: It was for them to draw such inference as the entire testimony would warrant.

The evidence shows that, after the fight at the barn, the defendant returned to Hodor’s place, and said they had been fighting; and Andrew Payne, Jr., Hodor, and the defendant went to defendant’s place. On the way, defendant said that he would have killed the old man if it had not been for his wife and children, and that they cried and begged him not to touch him any more. On their arrival, Mrs. Hossler said, in the presence of the defendant, to Hodor, “ Joe, don’t let George go at the old man any more.” Error is assigned upon the admission of this remark by Mrs. Hossler upon the ground that it contains an implication that she was of the opinion that defendant had done more than he should have done, and that her admissions were not admissible against him without his consent, anjr more than her testimony would have been. The remark was made in the presence of her husband, and was, in our opinion, admissible. Upon the latter point, see People v. Foley, 64 Mich. 158 (31 N. W. 94);

We find no 'error, and the conviction is affirmed, with direction to-the trial court to proceed to judgment.

The other Justices concurred.


author: Montgomery, J.

text:
    MAZIROFF v. COMMERCIAL BANK.
    Wrongful Attachment — Title—Burden of Proof — Fraudulent Conveyances — Possession.
    In an action for the wrongful attachment, as the property of plaintiff’s husband, of a stock of goods which he had transferred to her, the testimony tended to show that he conducted the business for her; that on the store sign was merely their surname; that she was at the store a portion of the time; that the only signature under which the money deposited in bank could be withdrawn was her name' in his handwriting; and that the agreement as to his salary was that she was to-stand all the expenses of the family and everything, and pay all his lodge and life-insurance expenses. He was indebted at the time of the transfer, and was unable to state the amount paid by her therefor. Held, that it was error for the court to treat the evidence as conclusive that plaintiff was in actual possession, and not merely holding a pretended or colorable possession, and so to impose on defendant the burden of proving that the property did not belong to plaintiff.
    Error to Bay; Shepard, J.
    Submitted November 20,. 1903.
    (Docket No. 150.)
    Decided January 5, 1904.
    Case by Fannie B. Maziroff against the Commercial Bank for an alleged wrongful attachment of her property. From a judgment for plaintiff, defendant brings error.
    Beversed.

      T. A. E. & J. O. Weadock and Luther G. Beckwith,, for appellant.

      H. G. Haller and I. A. Gilbert, for appellee.
   Montgomery, J.

The plaintiff sued the defendant for an alleged wrongful attachment of her property and for wrongfully issuing a writ of garnishment, by which, owing to the peculiar form of the writ, money on deposit in her name was tied up, although the principal action was against Jacob Maziroff. The evidence on the trial as to the title of plaintiff was mainly that of Jacob Maziroff, who testified that he transferred the property which he had employed in his business as junk dealer to his wife, the plaintiff, by a bill of sale reciting a consideration of $1 and other valuable considerations; that at the time of this transfer he was indebted. The question of the good faith of this transfer, or whether the transfer was a mere pretense, was the question tried. The court charged the jury that the burden of proof to establish that the money and property did not belong to plaintiff rested upon the defendant. The evidence as to the possession of the property by plaintiff was that of her husband, who testified that he conducted the business for her; that the sign over the door was “Maziroff,” and that Mrs. Maziroff was at the shop a portion of the time; that-the only signature under which the money deposited in bank could be withdrawn was that of Mrs. Maziroff in the handwriting of Jacob Maziroff; he was unable to state the amount of money paid to him by his wife on the transfer; that the salary was, “ She was to stand all the expenses of the family and everything, and pay f®r lodges for me and life-insurance policy, and that is all.”

In Bump, Fraud. Conv. § 128, it is said:

“ In such cases of concurrent possession, it is a question for the jury whether the change of possession has been actual and bona fide, not pretended, deceptive, and collusive. If there are facts tending to show that the grantor has a beneficial interest in the business, or that the proceeds go to him beyond a reasonable compensation for his services, or that he has unlimited power to draw upon the till, or that, with the knowledge of the vendee, he takes money to pay his own debts, these are facts for the jury.”

Yet in the present case the circuit judge treated the evidence as conclusively showing that the plaintiff was in actual possession of the property and business, and' not merely holding a pretended or colorable possession, and treated this possession as casting the burden of proof upon the defendant. In this, we think, he erred. See McKay v. Ross, 40 Mich. 548; Buckingham v. Tyler, 74 Mich. 101 (41 N. W. 868).

It is contended that this error should not cause a reversal of the case, for the reason that the testimony conclusively shows the property to have been in the plaintiff. We are not to pass upon the facts, but, in view of this contention, feel impelled to say that there is more than one badge of fraud in this case, and that the question of fact is one for the jury.

Judgment reversed, and a new trial ordered.

The other Justices concurred.