text:
    GNAU v. MASONS’ FRATERNAL ACCIDENT ASSOCIATION OF AMERICA.
    1. Insurance—Arbitration—Waiver—Question for Jury.
    Whether a provision in an accident insurance policy requiring all disagreements to be settled by arbitration -is waived, where the company, in its correspondence with the claimant, exhibits no desire to have the claim arbitrated, and states that if suit is brought it will place the matter in the hands of its attorneys, is a question for the jury.
    S. Same—Proofs of Loss.
    An accident insurance company cannot insist that a claimant shall furnish further proofs of loss without pointing out • wherein the proofs already submitted are defective, or what further information is desired.
    3. Mutual Benefit Societies—Membership—Burden of Proof.
    Where the by-laws of a mutual benefit society provide that it shall in no case be liable to a beneficiary in a sum greater than that realized from one assessment upon its members, the burden of showing the membership of the society in a suit for benefits, in order to establish that the amount so realized would be less than the amount claimed, is upon the society, it being a matter peculiarly within its knowledge.

      Error to Wayne; Frazer, J.
    Submitted April 7, 1896.
    Decided June 2, 1896.

      Assumpsit by Caspar Gnau against the Masons’ Fraternal Accident Association of America upon an accident insurance policy. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      E. T. Wood, for appellant.

      Morgan E. Dowling, for appellee.
   Long, C. J.

This action is brought upon an accident insurance policy issued to the plaintiff by the defendant on November 27, 1889. The certificate is for $5,000, and, among other things, it is agreed, by the certificate, to pay to the plaintiff the sum of $25 per week, for a period not exceeding 26 weeks, as indemnity for loss of time resulting from bodily injury during the life of said certificate, through external, violent, and accidental means, which should, independently of all other causes, immediately and wholly disable him from transacting any and every kind of business pertaining to his occupation. At the time the certificate was issued, the plaintiff was a merchant engaged in the hardware business in Detroit. The defendant was incorporated’, under the laws of Massachusetts, as a mutual Masonic accident insurance company.

The facts, as shown upon the trial, were that on December 16, 1893, the plaintiff ascended a stepladder in his store, for the purpose of placing some goods upon a shelf, and, while standing upon the ladder, the fastening at the bottom accidentally broke, causing him to fall to the floor, fracturing his leg, and from which injury he became wholly disabled from transacting any business for a period of 20 weeks. Plaintiff had kept up his payments upon the certificate. On December 18, 1893, written notice was served upon the companj^ of the accident and injury, and on May 7, 1894, the plaintiff mailed to the defendant proofs of his loss and damage resulting from his injuries. In June, following, he wrote the defendant company as to when he might expect to receive his money. On June 20th the secretary of the company responded, saying:

“In reply to yours of June 16th, I beg to say that, after claims are reported to the office, they are put into what is known as the ‘investigating channel,’ to be thoroughly looked up before they are presented to the auditing committee for adjustment. Some of the papers in your case have not yet been returned to the office. For that reason you have heard nothing from it. We think, however, in due time you will hear from it through the regular channel.”

On August 24th the plaintiff again wrote the secretary of the company, asking payment of his claim. In reply to this the secretary wrote:

“ I beg to say that the reason of the delay in your case arises from the fact that there is quite a discrepancy in the dates given in the papers in your case received at this office, and we have written to find out the reason that it should occur. As soon as we ascertain, and can straighten out these matters, we will advise you again.”

On September 5th the plaintiff again wrote as follows:

“It seems to me this is a very small discrepancy to worry about for nearly four months, and I am disgusted with the manner in which you do business. My claim was made out and handed in exactly as you dictated, and approved by your resident surgeon, and there is no just cause why you should withhold the payment of same. I am fully decided that if I do not hear from you immediately, with check for amount of the claim, I shall put the matter into the hands of my attorney.”

In answer to this the secretary wrote:

“I beg to say that it is evident that you do not understand the working of the association, as I do not think you really mean that you will put your claim into the hands of your attorney. If that were really the fact, I should turn all of your papers over to our attorneys, and the office would have nothing more to do with it; but, presuming that you do not understand that there is some error somewhere in the papers, I am sending you another blank to be filled out, which I trust you will attend to, and forward at as early a date as possible. * * * Trusting that I have made the matter plain, and that you will fill out the blank which we are sending you, and return at an early date, X remain,
“Yours, etc.”

The plaintiff then placed the matter in the hands of his attorney, who, on October 11th, wrote the secretary, and, among other things, stated:

“ Mr. Gnau declines to fill out the blank you sent him, marked ‘Duplicate,’ for the reason that he has already filled out such a blank and forwarded it to you, and this is all the law and his contract required him to do. * * * He has cheerfully met every requirement of his contract. He gave you due notice of the accident, he has furnished you with good and sufficient proofs of loss, and the time has elapsed for the payment of his claim. The only question to be settled is the question as to whether or not you intend to pay his claim, and he requests an immediate answer.”

October 16th the secretary answered this letter, saying:

“ Mr. Gnau has not complied with all the requirements of his contract. I am returning the duplicate blank to him to be filled out, which I trust he will do. He can have his case adjusted very much quicker by complying with the rules and requirements of the association, which he agreed to in his application, than to do otherwise. However, if he insists in putting it into the courts for settlement, we shall certainly defend the funds of the association. We are entitled to 90 days after satisfactory proof, and that we have not had, up to the present time.”

Plaintiff’s attorney thereafter wrote for a copy of the by-laws, which was furnished him, and on October 29th forwarded a statement to the company, from the plaintiff’s attending physician, stating the time of the injury, and its extent. Nothing further was heard from the company, when, on December 6th, plaintiff’s attorney again wrote, asking settlement of the claim, to which, on December 11th, the secretary wrote:

“Replying to yours of December 6th, in regard to the case of Mr. Gnau, I beg to say * * * our directors desire to have all claims settled up before January 1st, and they have waited very patiently for his blank to be duly executed and returned to the office. Will you kindly see that he does so? We inclose another blank, for fear that he may have mislaid the former one.”

In answer to this, plaintiff’s attorney wrote the secretary that a suit had been commenced, and said:

“Mr. Gnau regrets the necessity of suing, but the certificate of insurance requires him to bring suit within a year from the day of the accident. Any time the company is ready to pay the claim, the suit will be discontinued without costs.”

The by-laws of the association, by section 3, provide:

“Any disagreement in the settlement of losses that is not provided for in the application, certificate, occupation manual, or by-laws, may be settled by arbitration, whereby the insured shall select one who shall be a Mason in good standing, one shall be selected by the association, and these two shall select a third, all of whom shall be members of the Masonic fraternity in good standing, and shall constitute a board of arbitration.”

Section 8 of the certificate reads as follows:

“No legal proceedings for recovery hereunder shall be brought until the expiration of three months after receipt by the association of acceptable proofs of loss; and the association shall not be required, in case of a disagreement between the certificate holder and the beneficiary and the association as to liability, to arbitrate the question of liability, as by the rules of this association it is provided, and no suit shall be brought at all, and the said association shall not be bound to arbitrate at all, unless the said suit is brought or such arbitration is in writing demanded within one year from the date of the alleged accident; and no suit shall he brought in any case except to enforce payment of the award of the said arbitrators, unless the association refuse to arbitrate.”

The certificate also provides as follows :

“The certificate holder shall be bound by the rules and regulations of this association.”

And further:

“ This association do not agree to pay to any certificate holder or beneficiary in any case, either by way of indemnity or benefit, a greater sum than is realized by the said association from one assessment of two dollars, made and assessed upon all assessable holders of certificates assessable at the date of the accident; and provided, further, that no indemnity or benefit shall be due or payable until 90 days after the receipt by the said association of satisfactory proof of loss.”

At the close of the testimony, defendant’s counsel requested the court to charge:

“1. There is no evidence in this case that said association, from one assessment of two dollars, made and assessed as aforesaid, has sufficient funds to pay the amount claimed by the plaintiff, and such proof is necessary to a recovery.
“2. The correspondence and evidence in this ease show that the plaintiff had not furnished to the defendant satisfactory proofs of loss, as required by the terms of the contract of insurance, and your verdict should be for the defendant.
“3. Under the eighth paragraph of the contract of insurance, no suit can be maintained until after an arbitration is had. No arbitration has been had, and defendant has not refused to arbitrate. This suit was therefore pre-. maturely brought, and your verdict should be for the defendant.
“4. The evidence in this case shows that the plaintiff, on October 29, 1894, practically conceded that the proofs of loss previously furnished by him were not satisfactory, by furnishing the defendant, on said date, other and additional proofs of loss. I charge you that, under the contract of insurance between the plaintiff and the defendant, the loss, if any, is not payable by the defendant until •90 days after receipt of satisfactory proofs of loss; and this suit, having been commenced before the expiration of said 90 days, is premature, and your verdict should be for the defendant.
“5. I charge you that, under the pleadings and evidence in this case, the plaintiff is not entitled to recover.”

These requests were refused to be given in charge to the jury.

The court charged the jury, substantially, that the right to arbitrate might be waived by the defendant, and if they found by the evidence that the company did not agree to arbitrate, or that, by any statement made by it, it was shown to be willing to go into court, and adjust the matter with the plaintiff in a court of law, and that position was taken by the company, or the authorized agent of the company, in dealing with Mr. Gnau in relation to the claim, the jury might find that the company thus refused to arbitrate. The court then said:

“It is not necessary that this refusal should be made in any express terms, but by the action or conduct of the defendant or its agents, if it expressed its willingness to try this case in court, that would amount to a waiver, and that the terms of this policy had been complied with. * * * It is your privilege, if you find those facts that will justify it, to say whether or not this defendant did refuse to arbitrate, within the meaning of this policy and these by-laws.”

Upon the question of furnishing satisfactory proofs of loss, the court stated, substantially, that it was the duty of the plaintiff to furnish to the defendant proofs of loss as to the accident that happened to him, and the disability, and everything that was required under the policy and by-laws; that it was the duty of the company to speedily notify him of any defects in the proofs of loss, so that he might.supply them within the time limited in the policy, and, if the company was derelict in that, it could not complain that such proofs were not furnished; that the company could not so delay the proofs as to bar, or interfere with, the assured’s right of recovery; and that it was a question for the jury to determine whether anything of the kind had been done by the company. The court further stated that the company could not arbitrarily say that it was not satisfied with proofs of loss, but must show why it was not satisfied, and such objection must be reasonable, and within the terms of the contract; and the court stated, further:

“If it neglect to do this within a reasonable time, then the right to recover attaches at once when that reasonablé time has elapsed; and in no event, I charge you, could the assured be required to wait longer than within the year prescribed by the policy, and in bringing his suit he had to bring it within a year.”

Under this charge the plaintiff recovered verdict and judgment for $500.

It is apparent that there was no request or desire on the part of the defendant to have the claim arbitrated. Instead of making a claim to have the question of liability arbitrated, the secretary, when a demand was made for the money, and a threat made to bring suit, stated that, if that course were taken by the plaintiff, the company would put the case into the hands of its attorneys, and the office would have nothing further to do with the matter. The court very properly left the question of waiver of such provision of the contract to the jury to determine. The question of waiver of this provision was a proper one for the jury, and was very fairly submitted by the court.

The question of sufficient proof of loss was also fairly submitted for the consideration of the jury. The defendant company could not arbitrarily insist upon further proofs of loss. In all the correspondence had in reference to further proof, the company utterly failed to point out how such proofs were defective, or what further information was desired. The whole correspondence shows a desire to delay the payment and put the claimtant off until the time in which suit could be brought had expired, and the jury evidently found that the conduct of the company was without excuse.

When the plaintiff had shown his right to recover for the accidental injury, if the defendant desired to contest the amount on the ground that one assessment would not produce the amount claimed, the opportunity was open to it. The burden of showing the membership was not upon the claimant. These were facts especially within the knowledge of the defendant, and could not well be known to the plaintiff. This brings the case out of the general rule that the party holding the affirmative of the issue takes the onus of proof. The proof was within the peculiar knowledge of the defendant, and could readily have been shown. The case falls within the rule laid down in People v. Swineford, 77 Mich. 582, 583, and cases there cited.

The judgment must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Long, C. J.

license: Public Domain

text:
    BROWN v. PONTIAC MINING CO. BROWN v. MESNARD MINING CO
    Appeal—Stare Deoisis.
    Where, upon an appeal from a decree entered on demurrer to a bill in chancery, the statute under which the proceedings were brought is held constitutional, such decision becomes the law of the case, and the question will not be reviewed on appeal from a decree upon the merits.
    Appeals from Houghton; Hubbell, J.
    Submitted April 8, 1896.
    Decided June 2, 1896.
    Separate bills by Albert L. Brown and William J. Riley against the Pontiac Mining Company and others, and against the Mesnard Mining Company and others, to wind up the affairs of said corporations. From deórees for the complainants, defendants appeal.
    Affirmed.

      Chadbourne & Rees, for complainants.

      A. R. Gray (Thomas H. Talbot, of counsel), for defendants.
   Long, C. J.

The bills were filed in these cases September 27, 1893, under chapter 124a, 3 How. Stat. p. 3397, to wind up the affairs, and distribute the assets, of the defendant corporations. These bills were demurred to, and the demurrer sustained. An appeal was taken to this court in both cases, and the appeal heard here at the April, 1895, term, and .is reported in 105 Mich. 653. The facts are fully set out in that opinion. The order of the court below, sustaining the demurrer to the bills, was overruled, and the cases remanded to the circuit, with permission to defendants to answer over, and the causes to be heard on the merits. They have since been heard in the circuit, and the prayer of the complainants granted. Defendants now appeal.

One of the questions involved relates to the. constitutionality of the statute under which the proceedings were brought. When the causes were heard on demurrer, the same question was raised, and decided adversely to the contention of the defendants, and the statute was then held valid. It is unnecessary to reiterate what was then said, or the reasons then given for upholding the statute. The whole matter was fully treated, and the order then made became the law of the cases, and must now be upheld. We may say that we see no reason for changing the conclusion then reached.

The decrees of the court below must be affirmed, with costs.

The other Justices concurred.


author: Grant, J.

text:
    ARMSTRONG v. ANDREWS.
    1. Contract—Payment—Condition Precedent.
    A contract for the construction of a driveway of a specified width, and of “about” a designated length, for a given price per square foot, “payment to be a good and sufficient note, at 60 days, upon completion of work,” does not make the giving of the note a condition precedent to the right to demand a performance of the work.
    2. Same—Uncertainty.
    The use of the term “good and sufficient,” in a contract providing that payment for work done thereunder shall be by “a good and sufficient note at 60 days,” does not render the contract void for indefiniteness, it being construed to require such a note as can be readily discounted at a reputable bank in the place where the parties reside.
    3. Same—Pleading—Denial of Execution.
    Where the declaration in a suit upon a contract fails to set it out verbatim or to aver that it was in writing, the failure of the defendant to file with his plea an affidavit of non-execution will not prevent him from showing upon the trial that the contract was not his individual obligation.

    4. Evidence—Agency—Individual Liability.
    Parol evidence is admissible to show whether a corporation or an individual is liable on an accepted order for paving addressed to and guaranteed by the corporation, but signed by the individual without any designation of agency, and containing a marginal provision in which the individual agrees to pay for all material furnished by the party giving the order.
    Error to Kent; Adsit, J.
    Submitted April 10, 1896.
    Decided June 2, 1896.

      Assumpsit by Denson H. Armstrong against Samuel F. Andrews' for the breach of a p aving contract. From a judgment for plaintiff, defendant brings error.
    Reversed.

      The dispute in this case arises upon the following instrument :
    “April 8, 1893.
    “Grand Rapids Sidewalk Co.,
    “105 Ottawa St., Grand Rapids, Mich.

      “Dear Sirs: You will please construct for me on or about April 20, 1893, on my premises, Richard Terrace, a driveway made of your patent tar concrete, 26 feet wide, and about 500 feet in length,, for which I agree to pay you 6 cents per square foot, surface measure; payment to be. a good and sufficient note, at 60 days, upon completion of work.
    “Denson H. Armstrong.
    “S. F. Andrews.”
    At the foot of this instrument was a printed warranty, as follows: “The Grand Rapids Sidewalk Co. guarantee the above-described tar concrete work shall be in good, serviceable condition at the expiration of five years from the date of its completion.” The signature, “Grand Rapids Sidewalk Co.,” was also printed. On the margin of the instrument appears the following: “Said Armstrong also agrees to grade at his own expense, according to city survey; and said Andrews agrees to pay $1 per yard for all stone furnished by said Armstrong.”
    This instrument was executed in duplicate, each retaining one. The one kept by Andrews differs from the other only in that it contains the word ‘ ‘after” instead of “upon,” in the agreement, before the word “completion.” The defendant refused to do the work. Plaintiff employed other parties to do it, and then instituted this suit to recover damages for breach of contract, and recovered a verdict for $326.30.

      C. O. Smedley (Benn M. Corwin, of counsel), for appellant.

      Frank W. Hine, for appellee.

       For cases bearing upon this question, see Insurance Co. v. Howell, 101 Mich. 335, and note; Bank v. Insurance Co., 107 Mich. 543.

   Grant, J.

(after stating the facts).

The court instructed the jury that the provision, ‘ ‘ payment to be a good and sufficient note, at 60 days, upon completion of work,” meant that such note was to be given at the completion of the work, payable in 60 days. The defendant contends that the giving of the note was a condition precedent to the performance of the contract. We think the court’was correct. The amount could not be determined until the contract was performed. • It could not, therefore, have been contemplated that the note was to be first given. It is quite evident, also, from a letter written by the defendant to the plaintiff, June 14th, that he did not then so understand it.

It is also claimed that the term ‘ ‘ good and sufficient ” is indefinite, and that for this reason the contract is void. The court instructed the jury that this term meant “such a note as he could get his money on, which could be readily discounted at some one or more of the reputable banks of the city where the parties, the maker and the indorser of the note, reside, and a bank which was doing a general discount business.” We think this instruction correct, and that the contract was not void for indefiniteness. Defendant’s counsel cite, in support of their contention, Thomas v. Greenwood, 69 Mich. 215. The terms of the offer in that case were “cash or approved notes.” In reply to the proposition, plaintiff wrote to ship the goods at once, and, “on receipt of invoice, will forward note due four months from March, 1886.” The defendants refused to ship the goods. The distinction between that case and this is apparent. There the note was to be given as a condition precedent to the delivery of the goods, and the amount was fixed. In this case, manifestly, the work was to be done before the note was to be given, and the amount could not be determined until it was done. It was there held the note was to be one that could be used the same as cash.

It is urged that this contract was not the contract of the defendant, but of the Grand Rapids Sidewalk Company, and that the court erred in not so holding, and in rejecting parol testimony tending to show that the defendant was an officer of that company, and that the contract was executed as the contract of the company. The plea was the general issue, and it is urged on behalf of the plaintiff that this defense cannot now be interposed, since the defendant did not deny the execution of the contract, under Rule 79. The obvious reply to this contention is that the declaration did not aver that the contract was in writing, nor set it out verbatim. The numerous authorities cited by the plaintiff do not, therefore, apply.

The authorities are not in harmony as to the effect to be given to a contract where one of the parties is described in the body of the contract as an agent, or signs it as an agent. The mere description of the party is of but little moment, where it clearly appears upon the face of the contract that the party intends to bind himself as principal. Such is the case of Landyskowski v. Lark, 108 Mich. 500. So, also, where it clearly appears that the contract is made for and on behalf of a principal, the agent will not be bound. The difficulty arises in the phraseology of the contracts which come before the courts for interpretation. The true rule is stated by Mechem to be:

‘ ‘ Where anything on the face of the paper suggests a doubt as to the party bound, or the character in which any of the signers has acted in affixing his name, testimony may be admitted between the original parties to show the true intent.” Mechem, Ag. § 442.

None of the authorities cited by the plaintiff involve a contract like the one before us. In the case of Matthews v. Jenkins, 80 Va. 463, the agreement is between “T. W. Matthews, Secretary of the Mutual Endowment Association,” and “S. T. Jenkins,” and recites that “Matthews agrees to pay said Jenkins $200 per month as a guaranteed salary as a general manager and agent of the southern department of said association, and all the commissions of the membership fee over and above 20 per cent.,” etc. This is signed “T. W. Matthews.” The question was raised on demurrer. It was held that the contract on its face was the individual contract of Matthews, and did not indicate an intention to do a mere ministerial act in giving effect and authenticity to the promise of another. It was there said: “In this case we have no parol evidence to aid us in the construction of the contract;” thus intimating that, upon a trial upon the merits, it would be competent to introduce parol evidence to show that it was in fact the contract of the association, and was so understood by the plaintiff. The contract in the present case consists of a letter or order and its acceptance. The order was not directed to the defendant, but to the sidewalk company. The sidewalk company attached its guaranty at the foot. This, clearly, indicated that it was the contract of the company. The use of the personal pronoun “I,” the signature of the defendant without any designation of agency, and the marginal provision, indicate a personal contract on the part of Andrews. We think this, clearly, a case for the admission of parol evidence to show whose contract it in fact was, and how it was understood by the parties. 1 Greenl. Ev. § 282; Keidan v. Winegar, 95 Mich. 430; Lacy v. Dubuque Lumber Co., 43 Iowa, 510.

Reversed, and new trial ordered.

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


author: Montgomery, J.

text:
    MUNCEY v. SUN INSURANCE OFFICE.
    1. Garnishment—Procedure—Trial oe Issue.
    Where the only question raised under a disclosure in garnishment is whether the fund belongs to the principal defendant or to a third party claimant, a demand for the trial of the statutory issue under section 8068, 3 How. Stat., is unnecessary as against the garnishee.'
    3. Fraudulent Conveyances—Evidence—Admissions.
    Statements made by the assignor of an insurance policy after he has parted with its possession are not admissible to defeat the title of the assignee. -
    3. Same—Instructions—Curing Error.
    In a suit involving the bona fides of an assignment of an insurance policy, the erroneous admission of the declarations of the assignor, made subsequent to the transfer, tending to show that the policy had not then been assigned, and of further statements tending to show that the policy had been placed beyond the reach of creditors, is cured by an instruction that the undisputed testimony shows the assignment to have been made, and that, if given to secure an honest debt, it was valid.
    Error to Iosco; Simpson, J.
    Submitted April 28, 1896.
    Decided June 2, 1896.
    Garnishment proceedings by Angelina Smith Muncey against the Sun Insurance Office, as garnishee of Henry Boutyette, in which proceeding Caspar M. Zengerle intervened under claim of title to the fund. From a judgment for plaintiff, the garnishee and the intervener bring error.
    Affirmed.

      M. J. Connine (Cutcheon, Stellwagen & Fleming, of counsel), for appellants.

      J. E. Kinnane, for appellee.
   Montgomery, J.

Plaintiff instituted proceedings in garnishment against the Sun Insurance Office, and disclosure was filed, showing that the insurance company was indebted to the principal defendant in the sum of 1480, unless Caspar M. Zengerle was entitled to the claim under an assignment made to him of the same, but stated that'such an assignment had been made, and that, therefore, the insurance company was not indebted to the principal defendant. By an order of the court, Zengerle and O. E. MOutcheon and M. J. Oonnine were permitted to intervene as claimants to the fund involved. On the trial the claims of Connine and MOutcheon were allowed by direction of the court, and the single question remaining for trial was whether Zengerle was entitled to the fund under his assignment. The jury found against his claim, and he and the insurance company bring error.

It is contended that there was no authority to try the issue, for the reason that no demand for a trial of the issue was made under section 8068, 2 How. Stat., which reads as follows:

“The affidavit for the writ of garnishment shall be held and considered as a declaration by the plaintiff in trover against the garnishee as defendant, where the garnishee is chargeable for property, and for money had and receivéd, when he is chargeable upon indebtedness against the garnishee; and upon the filing of the garnishee disclosure, or upon filing of. the answers to such written interrogatories in cases where the same are required and filed, or upon the filing of the report of the testimony or statement made by such garnishee on such personal examination in cases where such examination is had, the matter of such affidavit shall be considered as denied (except so far as the same is admitted by such disclosure, answers to interrogatories, or report, which admissions shall have the effect of admissions in a plea, and also shall be prima facie evidence of the matters therein admitted). And thereupon a statutory issue shall be deemed framed for the trial of the question of the garnishee’s liability to the plaintiff. (And judgment may. be rendered against such garnishee defendant as upon declaration and plea, or [on] plaintiff’s motion to the court, at any time after the ■final judgment against the defendant in the principal cause, without fui'ther notice to such garnishee: Provided, however, if such plaintiff or such garnishee defendant shall, within 10 days after filing of such disclosure, answer, or statement, file with the clerk of such court a demand, for trial of the cause, said cause shall stand for trial in the manner provided by this act.)”

We need not determine whether the demand can be waived, or whether, in the absence of demand, the statements contained in the disclosure must constitute the sole evidence, in a case where the garnishee defendant is the sole party appearing to be interested in the question. The practical importance of the question is not great, as under the amendment of 1895 (Act No. 178, p. 332), the demand may be made after the lapse of 10 days, by the permission of the court. But we think section 8068, 2 How. Stat., is to be construed in connection with section 8085, 3 How. Stat., which provides for the intervention of other claimants when the answer of the garnishee declares that other persons than the defendant make claim to the fund or indebtedness, and for the payment of the fund into court to abide the result. Upon such disclosure the garnishee has no further interest in the proceedings, except to have the right as between such claimant and the principal defendant determined. And where the statement in the disclosure is accepted as true, except as such statement relates to the claim set up by said third party, there is no necessity or propriety in demanding, as against the garnishee, a trial of this question. The claimant must be brought in for that purpose. In this case the claimant voluntarily intervened.

The court admitted evidence of statements made by the defendant Boutyette, tending to show a promise by him to apply this insurance on his debts, after the date of the assignment to Zengerle, and of further conversations in which he stated that he had nothing from which collection could be made, and, in effect, that the plaintiff’s judgment was not collectible. These statements, being made by the assignor after he had parted with the possession of the policy of insurance, were not admissible to defeat the title of the assignee. Blanchard v. Moors, 85 Mich. 380. But, in view of the charge of the court in the case, we do not think the admission of this testimony was prejudicial. The tendency of a portion of this testimony was to show that no assignment of the policy had been made, and the tendency of the other portion of such testimony was to show that the property was placed beyond the reach of creditors. The circuit judge, as to the first question, charged:

“Now, there is no question, from the evidence in the case, but what Boutyette assigned the policy to Mr. Zengerle. I don’t believe there is any evidence upon that, but what he did do it. The assignments are here in writing. You have the testimony, and all the testimony goes to show that the next day after the fire he assigned this policy over, and it seems, and I charge you, that the evidence is that the assignment was made to pay him anything that Mr. Boutyette owed him at that time; and I do not think there is any dispute, upon that, but what the assignment was made.”

And, as to the second question, the court charged as follows:

“Gentlemen of the jury, I charge you, further, if he honestly owed Mr. Zengerle anything at the time, that the assignment is valid, and Mr. Zengerle’s claim is valid against this insurance. There is no question about that. We are not here to say that one man’s claim is any better than another’s. He made that assignment. He made it to secure Mr. Zengerle against any debt that he owed him at that time, and, if he owed him any debt at that time, Mr. Zengerle has a claim, to the extent of that debt, upon this insurance.”

We think, in view of this charge, the testimony could not have damaged the claimant.

Judgment affirmed.

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


text:
    KERR v. BENNETT.
    JuSTI0ES 0F THE Peace—Return on Appeal—Pleadings.
    Where a justice’s return to an appeal to the circuit court fails to show whether the pleadings before him were written or verbal, it will be presumed that they were verbal, since the statute (2 How. Stat. § 7008) requires him to give copies of the pleadings, if in writing.
    2. Pleading—Notice of Recoupment—Sufficiency.
    A notice of recoupment which fails to point out in what respect the contract sued upon was broken by the plaintiff is insufficient.
    Error to Wayne; Donovan, J.
    Submitted April 24, 1896.
    Decided June 2, 1896.

      Assumpsit by Thomas Kerr against Edmund Bennett for the breach of a special contract. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Hamilton Baluss, for appellant.

      George Griffin Prentis, for appellee.
   Grant, J.

This case was commenced in justice’s court. The justice, in his return to the circuit court, stated that—

“Plaintiff declares against the defendant in an action wherefore he claims dami ges for the wrongfully cutting certain timber trees on the lands of the plaintiff, contrary to an agreement between the plaintiff and defendant, and to the damage of the plaintiff $30. . The defendant pleaded the general issue, and gave notice of recoupment.”

Upon the trial in the circuit court the defendant was permitted to introduce evidence under this notice. It is claimed that the notice was insufficient, in that it does not point out in what respect the contract was broken by the plaintiff. The return of the justice does not show, nor does the record state, whether the pleadings were written or verbal. 2 How. Stat. § 7008, requires the justice, in his return, to give copies of the pleadings, if in writing. It must therefore be presumed that they were verbal. It follows that the notice of recoupment wás insufficient, and that .no testimony could be introduced under it. Roethke v. Brewing Co., 33 Mich. 340.

Judgment reversed, and new trial ordered.

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


text:
    HODGES v. DETROIT ELECTRIC LIGHT & POWER CO.
    1. Principal and Agent—Authority—Question for Jury.
    Whether one -who for five years has had charge of the affairs of a corporation as superintendent and general mana-' ger, and who is also a member of its board of directors, has authority to bind the corporation by a promise to pay for the attendance of a nurse upon an injured employé, is a question for the jury.

    2. Same—Evidence.
    In a suit by a nurse to recover for services rendered to an injured employé of a defendant corporation, the testimony of the attending physican that he had charged his own services to defendant on his books was incompetent, although it was claimed that the defendant had authorized the physician to employ the plaintiff.
    Error to Wayne; Hosmer, J.
    Submitted April 22, 1896.
    Decided June 2, 1896.

      Assumpsit by Harry Hodges against the Detroit Electric Light & Power Company for services rendei’ed as nurse to an employé of defendant. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Keena & Lightner, for appellant.

      Edward S. Grece and Hotoard J. Hall, for appellee.

       The decisions as to the duty of a master to furnish medical aid to a servant are compiled in a note to Ohio & M. R. Co. v. Early, (Ind.) 28 L. R. A. 546.

   Long, C. J.

This cause was commenced in justice’s 'court, and appealed to the circuit, where, on a trial before •a jury, verdict and judgment were rendered in favor of the plaintiff for $100. The action was brought for services rendered by the plaintiff as nurse to one Harden-burg, who, while in the employ of the defendant, was severely burned on his face and neck, causing injuries requiring medical attendance and the attention of a nurse. The injury was caused by the explosion of a steam valve, and, after the injury, Hardenburg was at once removed to Emergency Hospital, where his injuries were dressed. It appears that the defendant, at the time of the accident to Hardenburg, held a policy, made by the Standard Life & Accident Insurance Company to the defendant, wherein the insurance company agreed to pay to the defendant all sums it (the defendant) might become liable for on account of bodily injuries sustained by its employés on or about its premises, which policy contained the following stipulation:

“It is hereby agreed, in the event of injury of any employe of the assured, resulting from accident occurring during the hours of labor, and while actively employed in the service of the assured, that the company’s surgeon shall attend such employe until he shall have fully recovered from the effects thereof; that said employe can be sent to any public hospital in the city, and the charges for services rendered injured employes shall be paid by said company.”

Dr. Hitchcock, the regular physician of the insurance -company, being advised of the accident, made inquiry at the hospital, and on the next morning called and examined Hardenburg, and advised his removal to Harper Hospital, where he would give him personal attention and care; such change being necessary because he was not a member of the medical staff of Emergency Hospital. Hardenburg did not wish to go to the hospital, and at his own request was removed to his own home. Dr. Hitchcock offered to attend him there, but at Hardenburg’s request one Dr. Judson was sent for, who attended him until his recovery. The plaintiff, in nursing Hardenburg, claims that he was employed by the defendant through Dr. Judson, and that Dr. Judson was instructed to make such employment by Mr. Fitzgerald, the manager of the defendant company. Dr. Judson testified that he employed the plaintiff, and was authorized to do so by Mr. Fitzgerald; that he called at the office of defendant a day or two after the accident, saw Mr. Fitzgerald, told him it was a very severe case, needing' care night and day, and he would have to have a nurSe; and that Fitzgerald told him to employ a nurse, and thereupon he employed the plaintiff. The witness was then asked:

“What did he say about paying for it?
“A. He said that my bill and the nurse’s bill they would see to. He would see to that.”

This conversation took place, as claimed by Dr. Judson, at the office of the company, and following said instructions he told the plaintiff what Fitzgerald said. This conversation is denied by Mr. Fitzgerald. The court submitted the question of authority of Mr. Fitzgerald to make this contract for and in behalf of the company to the jury, saying:

“So far as the question of authority is concerned, I cannot say to you, that there is no evidence in this case from which you may infer that the superintendent or manager of the institution, as Mr. Fitzgerald testified he was, was authorized to make a contract. I think, from the evidence of what he did, and the evidence that he was the manager, you may draw the inference that he was authorized to make such a contract as the plaintiff contends in xhis case was made. I do not say it is a necessary inference, but from the testimony in this case it is for you to say whether Mr. Fitzgerald did or did not have power to make a contract for the nursing of 'the injured man, as is claimed by the plaintiff in this case.”

. Further on in the charge the court said, upon the same question:

‘ ‘ To restate, perhaps, what I said at first, the plaintiff is not entitled to a verdict unless you find—First, that the manager, Mr. Fitzgerald, was authorized to employ him; second, that he did employ him.”

Certain requests were presented by counsel for defendant which the court refused to give to the jury, and certain assignments of error refer to such refusal. These requests, taken together, substantially are: That there was no evidence in the case that Mr. Fitzgerald ever authorized the employment of the plaintiff for or on behalf of the defendant; that there was no evidence that Mr. Fitzgerald had power and authority to employ the plaintiff for and on behalf of the defendant; that the evidence showed that the defendant had made provision for the medical attendance and care of its employés injured by accident; that, under such circumstances, the burden of proof rests upon the plaintiff to show that Mr. Fitzgerald had authority from the company to make the contract claimed by the plaintiff; and that, under the pleadings and proof, the plaintiff was not entitled to recover. The evidence showed that Mr. Fitzgerald was the superintendent of the company, its manager, a stockholder, and one of the board of directors. The company is a domestic corporation, organized under an act to authorize the formation of electric light companies within this State.

We think the court was not in error in refusing these requests to charge, and that the charge as given substantially sets out the law in reference to the power of Mr. Fitzgerald. Under the testimony, it was a question of fact, for the jury to determine, whether the power existed in Mr. Fitzgerald to bind the company in the manner claimed by the plaintiff. The public .cannot deal with a corporation except through its agents. Mr. Fitzgerald’s position in the company, as superintendent and general manager of its affairs, was recognized; and he was the only person known to Dr. Judson or the plaintiff of whom inquiry could be made as to what the company was willing to do for the relief of Hardenburg. It is apparent that Hardenburg understood that the company would furnish medical care and attendance, and Mr. Fitzgerald, as superintendent and manager, acquiesced in the arrangement by which Hardenburg was taken to his own home, instead of being treated at the hospital, and also acquiesced in the arrangement to have Hardenburg treated by Dr. Judson instead of by Dr. Hitchcock, the physician of the insurance company. He was aware, before the services were rendered, if the testimony of Dr. Judson be true, that the plaintiff was to be employed, and authorized such employment, and agreed that “they” (meaning the company) would see to the payment of the bills. A somewhat similar question was presented in Marquette, etc., R. Co. v. Taft, 28 Mich. 289. While the court was equally divided upon the question of the authority of the superintendent of the railway company to bind the company for the services of a physician rendered to an injured employe, we are disposed to follow the reasoning of Mr. Justice Cooley, concurred in by Mr. Justice Christiancy, in the case. There it was said by Mr. Justice Cooley:

“We think it is within the general scope of the employment of a railway superintendent to make such a contract as the jury have found was made in this case, and that no evidence to prove a special authorization is requisite.”

In the present case, the management of the affairs of the corporation had, for upwards of five years, been left in the hands of Mr. Fitzgerald. An effort had been made, through the insurance company, by the defendant, to provide and care for the employés of the company injured while in discharge of their duties; and the mere fact that Hardenburg was provided and cared for at his own home cannot affect the question of the power vested in Fitzgerald to make the arrangement which is claimed by the plaintiff. We think the case was properly submitted, upon that question, for the determination of the jury.

Error is also assigned upon the ruling of the court in permitting Hr. Judson to testify that he charged upon his own books of account for his services rendered to the company. The question arose as follows: He was being examined by counsel for the plaintiff, and was asked:

‘ ‘ Did you ever make any demand upon, Mr. Hardenburg for your pay ?
“A. I had some conversation with him about it, and I did not make any demand on him. I charged my bill up, and it is on my books, to the Detroit Electric Light & Power Company; and it is on my books.”

Counsel for defendant asked the court to strike out the testimony as to the account being charged to the company. This was refused. It is apparent that this was not responsive to the question, and could but have been prejudicial to the defendant. The whole case hinged upon whether the jury took Dr. Judson’s statement, or that of Mr. Fitzgerald, as true; and the fact that Dr. Judson charged his services to the defendant might have been regarded by the jury as evidence that the contract was made as claimed by the plaintiff. The testimony was incompetent for any such purpose, and we think the court should have stricken it out when the request was made.

For this reason the judgment must be reversed, and a new trial ordered.

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


author: Hooker, J.

text:
    PEOPLE v. PAYMENT.
    I. Justices of the Peace—Failure to File Oath and Bond— De Facto Officers.
    One who has been elected to the office of justice of the peace, and has entered upon the duties thereof, is an officer de facto, notwithstanding his failure to file his oath of office and bond within the time prescribed by law.
    3. Criminal Law—Illegal Arrest—Validity of Subsequent Proceedings.
    The validity of an arrest under proper proceedings is not affected by the fact that the respondent is already in custody for the same offense under void proceedings.
    3. Adultery—Complaint—Information.
    A complaint against a woman for adultery need not show that it is made by her husband; nor is it necessary that the information should contain such an averment.
    4. Criminal Law—Offense not Triable by Justice—Jurisdiction to Issue Warrant.
    Where a complaint and warrant for an offense not cognizable by a justice of the peace are valid in form, the question whether the evidence taken before him justified his conclusion to issue the warrant is not triable at the circuit.
    5. Adultery—Instructions.
    Upon a prosecution for adultery, an instruction that sexual intercourse must be proved is sufficient, without going into particulars regarding penetration and emission.
    Exceptions before judgment from Chippewa; Steere, J.
    Submitted April 30, 1896.
    Decided June 2, 1896.
    Minnie Payment and John E. McDonald were convicted of adultery, and the former assigns error.
    Affirmed.

      McDonald & Chapman and Holden & Steinlein, for appellant.

      Fred A. Maynard, Attorney General, and Frank B. Warner, Acting Prosecuting Attorney, for the people.
   Hooker, J.

The defendant, Minnie Payment, was convicted of adultery upon a plea of not guilty, entered by direction of the court by reason of her refusal to plead to the information. Her counsel claim that the conviction is void because of a want of jurisdiction in the examining magistrate (1) because he was not a lawful officer; (2) because the arrest, complaint, and warrant were unlawful and void.

The magistrate was elected to the office of justice of the peace at the regular spring election of 1894. On the 4th of July following he received the docket and papers from his predecessor, and entered upon the duties of the office, but neglected to file his oath of office and bond until July 9th. It is contended that this created a vacancy in his office, under 1 How. Stat. § 649, which provides that—

“Every office shall become vacant on the happening of either of the following events before the expiration of the term of such office: * * * His refusal or neglect to take his oath of office, or to give or renew any official bond, or to deposit such oath or bound in the manner and within the time prescribed by law.”

Sections 767-769 require the justice elect to take, subscribe, and file his oath of office and execute and file his bond on or before the 4th day of July. By these sections the justice has the whole of the 4th of July to file these papers. There is nothing to indicate that he is not a lawful officer until this is done. On the contrary, the case is parallel to that of a sheriff who is required to file bonds at stated times. See Dunphy v. Whipple, 25 Mich. 10. In that case this court held that such sheriff was an officer de factoj that his election justified his treatment as an officer, and not a usurper, and that, together with his acting under it, constituted protection to those interested in his official acts. The election and the exercise of the office within the lawful term of the office constituted color, and his title could not be attacked in any other way than by a direct proceeding for that purpose.

The case of Carleton v. People, 10 Mich. 250, lays down the same doctrine, which appears to have been approved by the dissenting judges, who base their dissent upon the fact that the law had not provided for any officer de pire. Mr. Justice Campbell said:

"There could not be an officer de facto where no officer de jure was provided for. Where the law has provided that an office may legally be filled, then the acts of an incumbent may be valid, although not lawfully appointed, because the public, being bound to know the law, know that somebody may or should fill the place, and perform the duties; and possession would, as to them, be evidence of title.”

The case of Edison v. Almy, 66 Mich. 329, relied upon by counsel for the defendant, turned on the same principle, for there the law expressly provided that the term should terminate at the time -mentioned, and there could be no holding over.

The evidence showed that the defendants were discovered and arrested by an officer without a warrant, and subsequently a complaint was made by the defendant’s husband, and a warrant was issued, and duly returned with the defendant, and the examination followed. We attach no importance to the first arrest. Whether it was valid or not, the subsequent proceedings, if regular in themselves, cannot depend upon what occurred before.

We think the complaint and warrant were valid, under the decisions in the cases of People v. Isham, ante, 72, and People v. Bennett, 107 Mich. 430. It is not competent to try at circuit the question whether the evidence before the justice justified his conclusion to issue a warrant, when the complaint and warrant are valid in form.

The attack upon the information is based on the fact that it did not allege that the complaint was made by defendant’s husband; but this question is settled against defendant’s contention in People v. Isham.

Error is assigned upon the charge of the court in that it is said to have permitted the jury to consider outside rumor. Technically speaking, the language might admit of such construction, but it is also susceptible of another, and we think the defendant was not injured either by the refusal to give the request or the charge given; and we think the instructions upon the question of reasonable doubt and the presumption of innocence substantially covered those subjects in a proper manner.

We also think that, when the court told the jury that sexual intercourse must be proven, he sufficiently covered the question, without going into disgusting particulars regarding penetration and emission, or informing the jury that the “commission of adultery in the heart” is not sufficient. We may presume that the jury was composed of grown men, of average intelligence, and the request which the judge is said to have “positively refused” would have subserved no useful purpose.

We find no error in the record, and the conviction is affirmed.

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


text:
    BROWN v. GREENFIELD TOWNSHIP BOARD.
    1. Highways—Appeal to Township Board.
    The'determination of a township board upon an appeal from a decision of the commissioner of highways locating a'road across appellant’s land, and awarding compensation for the land so taken, is, under 3 How. Stat. § 1303, final and conclusive.
    2. Same—Award op Damages.
    The township board, upon such appeal, is not bound by the decision of the commissioner as to the amount of damages to be awarded, hut may, under 3 How. Stat. § 1304, diminish or increase the same.
    3. Same—Maximum Width.
    3 How. Stat. § 1296, providing that public highways shall not be less than four rods in width, does not operate to restrict them to such width.

      Certiorari by George H. Brown to review the proceedings of the township board of Greenfield township upon plaintiff’s appeal from a decision of the highway commissioner establishing a highway across his land.
    Submitted April 21, 1896.
    Writ dismissed June 2, 1896.

      William Look, for plaintiff in certiorari.

      George W. Radford, for defendant in certiorari.

   Long, C. J.

Proceedings were instituted before the commissioner of highways of Greenfield township to open a road 100 feet wide along the section line of certain sections in said township, the road being about 2¶- miles long. In the proceedings the plaintiff was the only one of a large number of property owners who did not dedicate his land for such purpose. In the proceedings the commissioner found the road a public necessity, and awarded the plaintiff $80 damages. Plaintiff took a general appeal from the decision of the commissioner to the township board, without stating any special reasons therefor. The township board convened for the purpose of hearing the appeal, but declined to consider it, because no reasons for the appeal were stated therein. Plaintiff thereupon applied to this court for mandamus 'to compel, the township board to hear proofs on his appeal. The writ was granted, and in the opinion, which is reported in 92 Mich. 294, it was held that the appeal left only two questions to be determined by the board, and the writ was issued directing the board to assemble to hear the proofs, and (1) determine the necessity for taking the land for a public highway; and (2) if such necessity should be found by the board to exist, then to assess the damages incident thereto. Pursuant to the directions in this writ, the township board convened July 5, 1892, and heard the proofs and allegations of the parties, and, after inspecting that portion of the lands required for the proposed road, decided that the road was a public necessity, and awarded the plaintiff $75 damages. The present proceeding is by certiorari to the township board to review its action.

The affidavit for the writ raises no question except the regularity of the proceedings. The allegations of error are:

1. In compelling the plaintiff to prove a negative, that is, that there was no public necessity for the opening of said highway, without there being first some showing, or a prima facie case being made, that there was a real public necessity existing for the taking of the lands.

2. That the statute under which this proceeding was taken, in limiting the value of the lands of plaintiff to their value for farming purposes only, is unconstitutional.

3. That the township board erred in finding, as matter of law, that there was any testimony upon which to base a finding that there was a public necessity for the opening of said proposed highway.

4. In finding, as matter of law, that there was any testimony which tended to show that the valuation of the lands of plaintiff was $75.

5. In reducing the amount of compensation allowed the plaintiff by the commissioner of highways.

6. In finding that there was a public necessity for the opening of said highway.

7. In awarding $75 as damages to plaintiff for taking 8.04 acres of land.

8. In awarding damages to plaintiff, instead of just compensation incident to the opening of said highway.

The township board has made a return to the writ, stating that it met, pursuant to the writ of mandamus from this court, to inquire into the necessity for taking the land for the proposed highway, and to fix the compensation or damages of the plaintiff by reason thereof; that it denies that the plaintiff was ip any way compelled to take the initiative; that the board heard all the testimony in behalf of the plaintiff, and also the testimony on the ground of the public necessity for said road, and the damages to the plaintiff; that, after hearing the testimony, the board adjourned to the 1st day of August, for the purpose of inspecting the premises upon-which the proposed road was laid out; that it did inspect the premises, and certifies that the larger portion of the land required for said road was swamp, and covered with water, and wholly worthless for farming purposes; that, after inspecting the premises, the board convened again, and heard arguments of counsel upon the question of public necessity existing and damages to the plaintiff; and that the decision of the board was reached after a full and careful consideration of all the testimony, and after an inspection of the premises.

Tinder sections 1302 and 1303, 3 How. Stat., the decision of the township board is made final and conclusive. See, also, Soller v. Township Board of Brown, 67 Mich. 422. The plaintiff, having taken advantage of his remedy under this statute by appeal to the township board, must rest content with the result reached by that body. Burt v. Highway Commissioners, 32 Mich. 190; Brody v. Township Board of Penn, 32 Mich. 272; Prescott v. Patterson, 44 Mich. 525.

There was testimony before the board which we think warranted it in finding the public necessity existing for the highway, and also warranted the fixing of the damages for the taking at the sum of $75.

The statute places no such limitation upon the action of the commissioner in fixing the value of the land taken as is contended. The Constitution provides, by section 14, art. 18, that “the property of no person shall be taken for public use without just compensation therefor and section 1300, 3 How. Stat., provides that, under certain circumstances, the lands shall not be estimated at less than their value for general farming purposes.

The board had the legal right, under section 1304, 3 How. Stat., to increase or diminish the amount of damages fixed by the highway commissioner.

The contention, also, that the commissioner had no' right to take land of the width of 100 feet cannot be sustained. Section 1296, 3 How. Stat., provides that public highways shall not be less than four rods in width. In Tyler v. Township Board, decided February 5, 1891, and not reported, the proceedings to open Hamilton boulevard 100 feet wide were reviewed and sustained by this court.

The writ of certiorari must be dismissed, with costs in favor of defendant in the writ.

The other Justices concurred.


text:
    PELKY v. PALMER.
    Malpractice—Instructions—Measure of Duty. .1.
    An instruction, in an action against a surgeon for malpractice, that the measure of defendant’s legal duty was to exercise such care, skill, and diligence in his treatment of the plaintiff as physicians and surgeons “in the neighborhood where he resided” ordinarily exercised in like cases, while not strictly accurate, is not prejudicial to the plaintiff, where it appears that the defendant resided in a city where there were other physicians, presumably of average ability when compared with similar localities.
    :2. Same—Quantum of Proof.
    It is error to instruct the jury in a malpractice case that the plaintiff cannot recover unless he shows, by a preponderance of the evidence, “a state of facts from which no other rational conclusion can be drawn than that the defendant was unskillful and negligentthe effect being to require the jury to acquit, if they can, upon any theory, find the facts rationally consistent with skill and diligence, notwithstanding a contrary probability.
    Error to Jackson; Peck, J.
    Submitted May 1, 1896.
    Decided June 2, 1896.
    Case by John A. Pelky against Frank E. Palmer, ■a surgeon, for malpractice. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Richard Price (Rienzi Loud, of counsel), for appellant.

      A. M. Culver and John Atkinson, for appellee.
   Hooker, J.

The plaintiff was defeated in an action for malpractice, brought against a surgeon whom he em-' ployed to set his broken arm. He was unable to give the defendant information as to the cause of the injury, which he discovered while on his way home from Parma, a neighboring village. The defendant set his arm on Tuesday morning. On Thursday the plaintiff called at defendant’s office in Albion, and found him absent, a card upon his door stating that he had gone to the State of Ohio. The plaintiff called again upon Saturday, and complained to the defendant that his hand and arm hurt him. Defendant stated that he could not attend to^ him then, as he had an urgent call to attend a person who had just had a stroke of paralysis, but he finally looked at his hand, which plaintiff says was black underneath, and cut away some of the wood of the splint, and told him to come the next day, which he did. At that time, according to the plaintiff’s version, the defendant pointed out lines of gangrene from the elbow to the wrist. He tied it up, and plaintiff called again Wednesday, according to defendant’s instructions. Subsequently defendant called upon the plaintiff, and treated him for 15 days. The arm shrunk, and has troubled him since in ways described. Defendant’s testimony is quite at variance with that of the plaintiff, but need not be stated.

The first question of importance arises over a request to charge that—

“ The defendant was bound to exercise such skill, care, and attention, in setting the arm of plaintiff and its treatment thereafter, as should be ordinarily exercised by a man of his profession under like circumstances.”

The court modified this, and instructed the jury as follows:

“Now, Dr. Palmer was bound to exercise reasonable and ordinary care, skill, and diligence in his treatment of plaintiff’s arm and injuries. That was the measure of his legal duty,—such care, skill, and diligence as physicians and surgeons in the neighborhood where he resided, and where he practiced his profession, and who are engaged in the same general line of practice, ordinarily have and exercise in like cases. And the defendant can he held to no higher or greater care, skill, and diligence than this. * * * Now, I instruct you, with reference to this point, that ordinary skill implies ordinary judgment in the selection and adoption of methods and details of a surgeon’s practice, and the defendant, Dr. Palmer, should not be held guilty of malpractice in this case, if, in these respects, he exercised the ordinary judgment of physicians in his neighborhood, even though it may be found that some other course would have been better, or would have prevented the unfortunate results here complained of. He could not be liable in this case for errors of judgment, unless you find, from the evidence, that he failed to exercise the ordinary judgment of physicians in his neighborhood, in deciding upon and pursuing a course where different physicians of ordinary skill and judgment might disagree as to the practice to be pursued or the precise course to be adopted.”

We may reasonably take judicial notice that a surgeon’s skill depends somewhat upon his experience and opportunity for witnessing operations, and it is to be expected that the degrees of surgical skill met with in different localities will be affected by these things. While a man with no skill, or inconsiderable skill, could not shelter himself behind the claim that he was the only practitioner in his neighborhood, and therefore that he was possessed of the ordinary skill required, although shown to possess less than the ordinary skill to he met with in such localities, or, as the books sometimes say, in the general neighborhood, it is true that the character of the locality has an important bearing upon the degree requisite. And, while the language of the circuit judge, taken abstractly, was perhaps not strictly accurate, yet, in view of the testimony showing that the defendant resided in one of the cities of the State, where, as the evidence shows, there are other physicians, presumably of average ability when compared with similar localities, we see no indication that the plaintiff was injured, especially as there was nothing to indicate a claim that such physicians were below the general standard in such localities.

Error is alleged upon the instruction that an error in judgment cannot be treated as legal negligence, provided the defendant exercised the ordinary judgment of an ■ordinary physician in his locality. The subject was discussed somewhat at length, and the charge stated the rule •correctly, except as it was limited to the particular locality, which, as already said, if inaccurate, was probably ■due to the fact thait, under the proofs, a closer discrimination was unnecessary.

The charge excluded, as grounds of recovery, the failure of defendant to give antiseptic treatment when he set the arm, the alleged insufficient size of the hole in the : splint, whereby a proper examination of the bruised tissues could be made, and whether he was negligent in not ; seeing the plaintiff on Friday, or in postponing examina-tion until Sunday, when he called upon defendant on Saturday, and told him that he was and had been experiencing severe pain. The only evidence offered by the plaintiff tending to prove improper practice was that of ■ one Dr. De May, who, in answer to a long hypothetical •question closing with the inquiry, “What, in your opinion, caused the gangrene, and the sloughing out, and wasting away of the forearm and hand? ” answered, “Too tight bandaging, and lack of proper attention on the part of the physician.” On cross-examination, he said, substantially, that the question asked excluded all other causes, and that his conclusion that there was tight bandaging was drawn from the alleged “fact that the man suffered great pain, that he had swelling, blackness of the hand, discoloration.” On his redirect examination he stated that there was lack ■ of attention in not seeing the patient daily, in his failure to leave the case in another physician’s hands when he went . away, and in his neglect to undo and look at the arm on Saturday, and ascertain the condition of the wound. He ■also thought provision should have been made so that the region of the wound could be seen. The inference, from his testimony, is that too tight bandaging stopped the circulation of the blood, and caused gangrene, and that this was not seasonably discovered, because of the improper use of splints and appliances, and failure to examine. We have discovered nothing in this testimony about antiseptic treatment, and it is not clear, from the briefs, that, there was any testimony tending to show that the condition of the arm was due to a failure to give antiseptic-treatment. But we are impressed that the testimony of' Dr. De May tended in the direction claimed, and justified the submission to the jury of the question of neglect in the particulars mentioned.

One further question demands notice. The court said to the jury:

“You are instructed that the plaintiff cannot recover in this action unless he shows, by a preponderance of the evidence, a state of facts from which no other rational conclusion can be drawn than that defendant was unskillful and negligent, which were the proximate causes of producing the result complained of; and it is not enough to show a state of things equally consistent with unskillfulness and negligence or the absence of them.”

The latter part of this instruction is not objectionable; for, where the inferences to be drawn from the facts proved are as consistent with skill and diligence as with unskillfulness, the plaintiff should fail. But a rational conclusion is a conclusion which is reasonable, or “agreeable to reason,” and, of two conclusions inferable from known facts, one may be more rational than the other, or men may differ as to which is the more rational. It cannot properly be said that the plaintiff cannot recover where it is possible to draw a rational conclusion other than that of negligence. That is, in effect, applying a rule approximating that of reasonable doubt. We think that the true rule is that, where there are two inferences equally consistent with the facts proved, one of them cannot reasonably be drawn to the prejudice or exclusion of the other, and the plaintiff would necessarily fail; but where, although either of two inferences might legitimately and reasonably be drawn, one involving negligence is more reasonable or likely than the other, then the case cannot be taken from the jury. 1 Beven, Neg. 133. The author continues:

‘It is not sufficient, to exonerate a defendant, merely to point out that the facts proved are susceptible of another conclusion than that of negligence. It must be shown that, of the two inferences that can be drawn, there must be a probability of the inference that acquits him either equal to or greater than that which points to negligence.”

In other words, the language used excluded probability, by requiring the jury to acquit, if they could, upon any theory, find the facts rationally consistent with skill and diligence, notwithstanding a contrary probability. It is possible that the instruction was understood, as it was .doubtless intended, to point out the necessity of a probability of unskillfulness, as a rational conclusion, before the jury could find a verdict for the plaintiff, but we think it went further.

We are therefore constrained to reverse the judgment, and it is ordered accordingly. A new trial is directed.

Gbant, Montgomeby, and Moobe, JJ., concurred. Long, C. J., did not sit.


text:
    SCHATTLER v. WAYNE CIRCUIT JUDGE.
    Quo Warranto—Trial or Issue—Procedure.
    2 How. Stat. § 7551, in relation to notices of trial of issues of fact, does not apply to proceedings in the nature of quo toarranto, the same being governed by chapter 298, 2 How. Stat., and the rules of court adopted thereunder.

      Mandamus by Frank C. Schattler against Willard M. Lillibridge, circuit judge of Wayne county.
    Submitted June 16, 1896.
    Denied June 17, 1896.

      William Look and Ira G. Humphrey, for relator.

      Allan H. Frazer, Prosecuting Attorney (Charles B. Warren, of counsel), for respondent.
   The prosecuting attorney of Wayne county, on the relation of David Trombley, filed an information in quo warranto in the circuit court for said county, to test relator’s title to the office of supervisor of the township of Gratiot. Relator pleaded to the information, and replication was filed, an issue of fact being raised; whereupon the respondent, Judge Lillibridge, on motion of the informant and due notice to the relator, entered an order, under Circuit Court Rule No. 108 (104 Mich, iii.), placing the cause upon the docket of the then pending term for trial. Relator applied for mandamus to compel the vacation of this order, upon the ground that 2 How. Stat. § 7551, requires notice of trial of an issue of fact to be served at least 14 days before the first day of the term at which it is proposed to try the cause, and that the rule cited is in conflict with this statutory provision. The respondent contended that this section of the statute is not applicable to proceedings in quo warranto, but that the same are governed exclusively by chapter 298, 2 How. Stat., and any rules of court adopted thereunder. Upon hearing, respondent’s contention was sustained, and the writ denied.


author: Moore, J.

text:
    PAINTER v. LEDYARD.
    1. Lost Documents—Secondary Evidence.
    A witness may testify as to the contents of a lost letter without proof that he had knowledge of the handwriting of the party claimed to have written it, where the letter has ' been sufficiently identified by another witness, and proof of its loss made, to allow parol proof of its contents.
    2. Findings op Fact—Appeal.
    Findings of fact by the trial court will not be disturbed on appeal where there is evidence to support them.
    Error to Kent; Adsit, J.
    Submitted April 23, 1896.
    Decided June 30,1896.

      Assumpsit by Martin J. Painter against Harrison T. Ledyard upon an account for boarding and lodging defendant’s nephew. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      L. G. Rutherford, for appellant.

      Mains & Mains, for appellee.
   Moore, J.

Plaintiff sued defendant to recover $40 for 10 weeks’ board furnished by Clark & Co. to one Shepard, a nephew of defendant, which claim was assigned to plaintiff. Judgment was rendered in favor of plaintiff in justice’s court, and appeal was taken to the circuit court, where the case was tried, and a judgment for $40 and costs, together with an attorney fee of $25, was rendered in favor of plaintiff. Defendant appeals to this court, making a number of assignments of error. So far as they relate to the amendment of the pleadings allowed by the court, it is not necessary to discuss them, as what was done in relation thereto was clearly within the discretion of the court.

' It is the claim of the plaintiff that one Shepard came to Clark & Co.’s hotel at Lake Odessa, Sunday, July 16, 1893, and registered; that the next day Clark discovered something was wrong with Shepard; and attempted to send him away; that he was told by one Powers that Shepard was a nephew of defendant, and that he would see him about Shepard. Clark testified that on the following Tuesday he got a letter from defendant, which was lost; that he had made diligent search for the letter; that in substance it said to him not to send Harry Shepard back, but to keep him there until he could straighten up, and charge it up to him, and to draw on him for it, and he would pay it. He also testified that he had other letters from defendant, four or five in all, two or three of which he then had; the others were lost. One, dated September 26, 1893, was offered and received in evidence, reading:

“Grand Rapids, Mich., Ledyard Block.
“Sept. 26, 1893.
“Frank Clark: In reply to your favor, will say the young man’s board will be paid, as I told you, up to this time,—that is, September 26, 1893; but from this out I shall not stand by it. If his own mother refuses to pay, I don’t consider I am called upon to do so. She will undoubtedly settle with you for the past amount. I don’t wish to advance it, for she is the one that should do it. I saw her two sisters Sunday night, and they think about this matter as I do, and they will have a talk with her, and advise her. Don’t draw any drafts on me. I shall be absent from the city for the next two weeks, but your claim up to this time will be settled.
[Signed] “H. T. Ledyard.”

Another letter was received in evidence, without objection, dated October 24th, from Mr. Ledyard, in'which he stated:

“I consider myself liable for his first week or two’s board with you, as I told the checkman, and told you to keep him there until he could straighten up,” etc.

Mr. Clark also testified to verbal interviews in which he told him to keep Shepard, and that he would pay him $4 a week, and send him a check for the amount.

An assignment of error is made, growing out of the testimony of the plaintiff, who was allowed to give testimony as to the contents of the letter of July 18th, about which Clark had testified, without its being shown that Painter had knowledge of Ledyard’s handwriting. Upon this point counsel cites Pinkham v. Cockell, 77 Mich. 265. The admission of Painter’s testimony would have been error had not the letter been sufficiently identified by Clark, and proof of its loss made, to allow parol proof of its contents.

For further ground of error it is alleged that the facts do not support the findings. Ledyard testified that he never sent the letter of July 18th. Powers testified:

' “The only thing I ever did tell them was that Ledyard told me to say to Mr. Clark to keep Harry Shepard there a few days, until he might straighten up. Mr. Ledyard never authorized me to say anything to Mr. Clark.”

These are disputes which relate to questions of fact. The trial judge had the witnesses before him, and we are not inclined to disturb his findings.

The judgment is affirmed.

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


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    CHABERT v. RUSSELL.
    1. Adverse Possession—Question for Jury.
    Where, in an action to x'ecover marsh land to which defendants claimed title by adverse possession, it appeared that defendants and their predecessors claimed to be the owners, and exercised acts of ownership by driving stakes to mark boundaries, by fishing, hunting, and trapping, by leasing to others, by erecting signs to warn off trespassers, and by building a dike around the land, a request to direct a verdict for plaintiff was properly refused.
    2. Same—Evidenoe.
    A tax deed which is insufficient in itself to pass title, and assessment x’olls showing the assessment of the property in the name of the grantee, and proceedings of the probate court showing that the land was treated as a part of the estate of such grantee upon his decease, are admissible, upon an issue of advex’se possession, to characterize the acts of possession, on the part of such grantee and his successors, shown by the evidence.
    3. Same—Hostile Acts.
    Acts of possession, in order to constitute adverse possession, must be such as, if seen by the party whose claim is sought to be divested, would clearly apprise him that the party doing the acts claimed the ownership of the property.
    4. Trial—Requests to Charge—Modification by Court.
    Where a request to charge bearing upon an important feature of the case at issue correctly states the law, it is ex-ror for the court, in instructing the jury, to add to the statement submitted words which render it of doubtful meaning.
    5. Same—Instructions to Jury.
    Where the issue is a close one from a legal standpoint, the instructions to the jury should state the law applicable to the case clearly and without ambiguity.
    Error to Wayne; Donovan, J.
    Submitted April 22, 1896.
    Decided June 30, 1896.

      Ejectment by Richard Chabert against John A. Russell and another. From a judgment for defendants, plaintiff brings error.
    Reversed*

      Alfred Lucking, for appellant.

      Sullivan & Mason (Elliott G. Stevenson, of counsel), for appellees.
   Moore, J.

This is an action of ejectment for an undivided 1-28 of about 34 acres of land in Ecorse township, Wayne county. The plaintiff was the owner of the land, unless the ownership was cut off by adverse possession. He claims title as the grandson of Francis Chabert, who got title from the United States government in 1821. This land was part of a tract of about 237 acres called “Private Claim No. 42.” It was marsh land, and part of a large marsh, of several hundred acres in extent, which fronted on Detroit river, and was covered with water most of the time until some dredging was done in 1891. The heirs of Chabert settled in different parts of the country between 1830 and 1840. Joseph Lor anger obtained a two-ninths interest, and about 1850 built a fishing shanty on the front of claim No. 42. In February, 1854, Loranger deeded his two-ninths interest to Simon B. Rousson, who also bought another one-ninth interest the same year from Margaret Chabert. The fishing shanty was moved to Ecorse village about- 1856 or 1857. A little later, Rousson rented the fishing privilege to some Canadians, who built a shanty and fished for a short time, when the shanty was torn down. In 1868, Rousson obtained a tax deed from the State for the taxes of 1865, in which the land was described as the middle part of claim No. 45, which deed was recorded April 2, 1868. It was claimed this referred to the same land, and proof was offered to that effect. Upon the death of Simon B. Rousson, which occurred in 1875, this land was inventoried as part of his estate, and ■upon the petition of his eight -children claim No. 42 was surveyed and divided into eight lots, numbered from 1 to 8. One lot was assigned to each child; Sarah Senecal, a married daughter, obtaining lot 1, which is the land in controversy in this suit. In 1883, she deeded to Franklin, who, in 1885, deeded, to Goodrich, who deeded to the defendants in 1889. In 1886, Nathan Judson obtained title from some of the Chabert heirs, which, in 1889, by quitclaim deed, he conveyed to Goodrich, so that, at the time this suit was begun, the defendants were the owners of about -three-fifths, of the original title. In 1891, the defendants dredged a canal and made a dike around the land. This case was commenced in 1892. The claim of the defendants is that, after Simon B. Rousson got title, he and his successors in title exercised such acts of ownership and possession as to constitute adverse possession within the meaning of the law. A large number of witnesses were sworn. The jury returned a verdict for the defendants. The plaintiff brings the case here upon nearly 100 assignments of error, which will not be taken up separately, but will be grouped.

The first group alleges it as error that the court refused to direct a verdict in favor of the plaintiff.- We think these assignments are not well taken, as there were questions that were proper to be submitted to the jury. Ewing v. Burnet, 11 Pet. 50.

It is claimed it was error to admit the tax deed of 1868, the assessment rolls, and the proceedings of the probate court in evidence. It is the contention of the defendants that, from the time Simon B. Rousson got title, he and his heirs claimed to be the owners of all the premises, and that he and they exercised all such acts of ownership by driving stakes to mark boundaries, by fishing, hunting, and trapping, by leasing to others, and by the erection of signs warning off trespassers, and by doing all such acts as the owner of the land would be expected to do, considering its character and the uses to which it could be put. We do not think any of this testimony was incompetent. Some of it may not have been very valuable, but it was proper to advise the court and jury of all the acts of the grantors of the defendants, in order to characterize such possession as they did exercise over the premises in controversy. Oglesby v. Hollister, 76 Cal. 136.

The other group of errors to be considered relates to the charge of the court, to which counsel for plaintiff objects —First, because it is argumentative; second, because it does not properly state the law of ouster; third, because it does not correctly state the law of adverse possession. The portions of the charge that are objectionable, so far as necessary to quote here, may be stated as follows: The learned- judge was asked to charge the jury as follows:

“26. In order to constitute adverse possession, the acts of possession on the land claimed to constitute the adverse possession must be such as, if seen by the plaintiff, would clearly apprise him that the party doing the acts claimed the ownership of the property.”

This he did, and very properly, as we think, for we believe it to be good law. He then spoiled the effect of it by adding the following words, which we do not think were good law:

“ That is the case, gentlemen. By seeking the record, by titles, leasing, deriving a profit, driving any one off,—these acts must be such that, if Mr. Chabert was there in the vicinity, and knew about it, that that would be notice to him. That is correct.”

The addition of these words made the request to charge, that was direct, pointed, and clear, ambiguous and of doubtful meaning. We have repeatedly held that the trial judge is not bound to charge the jury in the language used by counsel in his requests to charge, if he gives it in substance, so far as it is applicable to the facts in the case. In this case, the request to charge bore upon one of the most important features of the case from the standpoint of the plaintiff, and the plaintiff was entitled to have the jury properly instructed upon that point.

After disposing of the requests of counsel, the trial judge added, upon his own motion, the following:

“Now, gentlemen, I have but a few words more to say. Having stated to you already what adverse possession is, and what the rights of the parties are, it depends upon the things named,—what constitutes possession, and what constitutes adverse possession. One may occupy land by his tenant,—by himself, or by his tenant. But, in occupying it, it must be something. He must do something, and must intend to do something, and it must be a different occupancy'from casually passing over it by a stranger; and you have heard the testimony in this case, and you will be able to determine whether this was a different style of occupation from that of the casual hunters who passed over it. You have seen these different witnesses brought here from the community where this property is located. You have been able to weigh their knowledge and measure their ability to know what is the real condition of the property,—what has been the condition of the property. It is for that purpose that you are here. You will be able to know whether there were taxes paid, maps made, stakes driven, shanties built, people driven off, leases made, any profits derived; whether it was continuous, or whether it was casual. You are to take the case, gentlemen, with your candor and your best sense. You are to consider it in all its bearings. You are to consider each side of this case as presented,—which side is most likely to be right; which are best informed; which, of all these persons who have come before you, convince you in your hearts that they are right. You are not likely to make a mistake about it. The doors have not been closed, and the main witnesses shut out. They have been opened, and you have seen. It is to you, I think, capable of a very reasonable conclusion. It is not mysterious. You will not be confused about it when you go out, any more than you would be in an assault and battery case,—any more than you would be in any case where you have seen the eyewitnesses. Now, this is not a case that you can split up and divide. It is not a case where, in dollars and cents, you may give one a portion, and .divide it by twelve. It is a case for the plaintiff or the defendants. You are to say, gentlemen, has the plaintiff made out a case ? If so, ‘ We find for the plaintiff.’ If the defendants have made out their case,—if they have maintained possession, control, ownership, leased, and shot game on this property, as contended. by them,—if so, ‘We find for the defendants.’ Follow an officer.”

It is urged that this was argumentative and misleading, and, taken in connection with the rest of the charge, indicated to the jury that the trial judge thought the case should be decided for the defendants. We are inclined to-think it open to at least one of these criticisms. The case at iss ue is a close case from a legal standpoint. We have already indicated that we thought it such a case as, from the proofs, made it necessary to submit the questions involved to the jury. From the nature and-character of the proofs, it was important that the trial judge should clearly and without ambiguity instruct the jury as to the law applicable to the case. This, we think, was not done.

The judgment is reversed, and a new trial ordered.

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


text:
    ALFRED SHRIMPTON & SONS v. CULVER.
    1. Trover—Conversion of Check—Intent.
    An attorney at law is not liable in trover for cashing a check forwarded by a client to cover disbursements, although he appropriates the proceeds to his own use, in the absence of evidence showing an intention to misappropriate at the time the money was obtained.
    2. Same—Conversion oe Proceeds.
    Trover is not maintainable as for a conversion of money unless there is an obligation on defendant’s part to return the specific money intrusted to his care.
    Error to Calhoun; Smith, J.
    Submitted April 23, 1896.
    Decided June 30, 1896.
    ‘ Trover by Alfred Shrimpton & Sons, Limited, against Allen M. Culver. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Mains & Mains, for appellant.

      John C. Patterson, for appellee.
   Montgomery, J.

This is an action of trover. The declaration contains two counts; the first charging the conversion of a check drawn by plaintiff to the order of defendant, and the second charging the conversion of the money, the proceeds of the check. The circuit judge directed a verdict for the defendant on the ground that the action of trover could not be maintained under the testimony.

The defendant is an attorney at law, residing at Albion, and the plaintiff’s home office is New York. Plaintiff had a claim against one Ella M. Crane, of Albion, and through their New York attorney, J. Sarsfield Roche, opened correspondence with the defendant in relation to the same. The first letter was as follows:

“Dear Sir: Herewith claim of Alfred Shrimpton & Sons vs. E. M. Crane, of your town. This claim is for pins which were manufactured especially for him, and are useless to any one else, as each and every paper bears his name and special advertisement. I have in my possession his original signed order for the goods given to A. Shrimp-ton & Sons’ salesman. Kindly present the claim at once, and, if payment is refused, advise me what the total costs of suit will be, including your fee, and, if reasonable, I will forward papers at once. Should you succeed in collecting without suit, deduct for your fee $3, and remit me the balance.”

To this the defendant replied:

Dear Sir: Replying to your communication of the 26th inst., I hereby acknowledge the receipt of statement of account rendered by Alfred Shrimpton & Sons against E. M. Crane for $42.41 for collection; and you are further advised that I have had an interview with the debtor’s husband, W. B. Crane, who is the authorized agent of E. M. Crane, and the said W. B. Crane refuses to accept or pay for the goods mentioned in such statement of account, for the alleged reason that he ordered the goods in January last, and they were not shipped until the 28th day of April, which he claims was an unreasonable delay on the part of the vendor. The attorney fee for trial of suit will be $10. ' In case the plaintiffs are defeated in the action, I think the costs cannot be made to exceed $10, and not less than $5, which depends on the trial’s being had with or without a jury. The last item will be exclusive of attorney’s fees.”

Mr. Roche replied, inclosing original order, and requesting defendant to proceed at once to sue, unless Mr. Crane would settle the bill. On September 25th the defendant wrote as follows:

“I am in receipt of the original order referred to by you in your communication of the 23d inst., but can do nothing with Mr. Crane without suit. The claim made by him that the goods were not shipped within a reasonable time after the order was given (as it seems to me) has no force. If the demand is to be sued, please furnish me with full Christian names of the persons composing the copartnership firm of Alfred Shrimpton & Sons, and send me postal order for $10 to cover disbursements, and I will furnish security for plaintiff’s costs, and commence action.”

In response Mr. Roche replied:

“I concur in your opinion that debtor’s claim that goods were not delivered in a reasonable time will not constitute a defense, and I send you herewith my client’s check for $10 to cover the costs of suit.”

To this the defendant replied:

“Yours of the 3d inst., with check inclosed for $10 came duly to hand. Will bring action as directed without delay.”

The testimony on the part of plaintiff tended to show that from this time on the defendant did not communicate with plaintiff, and neglected to answer letters. No suit was brought, and after several months the claim was turned over to another attorney on plaintiff’s order, and demand made for the check. Defendant had, however, cashed the check on its receipt, and testifies that he used the receipts of the check for himself, for his own purposes. The defendant’s testimony tended to show that he had induced Crane to promise payment, and expected to effect a collection without suit; that he had taken out a summons at an expense of 25 cents, but, after doing so, learned that Mrs. Crane was away from home, and that the summons could not be served for this reason. Defendant claims to be entitled to set-off against the claim of plaintiff to the extent of the value of his services.

It is clear that trover for the check cannot be maim tained, for both parties contemplated that the check would be cashed by defendant, as it was. There was no wrong im converting the check into money when the plaintiff expressly authorized it. In People v. Hanaw, 107 Mich. 337, relied upon by plaintiff, 'the jury, under the charge of the court, found an intent to embezzle existing at the time the draft ■ (which was drawn by a third person) was cashed. The • evidence in this case has no tendency to show any such intent; nor do we think the general count in trover can be maintained on the ground that there was a conversion • of money. This is not a case of special deposit of money ■ to be returned in specie. In Pierce v. Underwood, 103 Mich. 62, the defendant received a deposit of money withdrawn from the bank where it was deposited, and ■ agreed to return it on demand. Trover was maintained, • evidently on the ground that the agreement contemplated . a return of the identical .money in specie. Trover is not .maintainable for money .unless there be an obligation on the part of the defendant to return the specific money intrusted to his care. 26 Am. & Eng. Enc. Law, 766, and cases cited in notes; Davis v. Thompson, (Pa. Sup.) 14 Atl. 169.

Judgment will be affirmed.

Grant, Hooker, and Moore,, J.J..„ ¡concurred. Long, 'iC. J., did not sit.