author: Long, J.

text:
    Alexander M. Campau v. Carl H. Michell.

      Landlord and tenant — Subletting—Holding over — Estoppel.
    1. Where a tenant has sublet the whole or any part of the leased premises, and the subtenant is in possession at the termination of the original lease, the tenant must remove him, otherwise he will not be in a situation to render that complete possession to which the landlord is entitled; and, unless the entire possession is surrendered, the responsibility of the tenant for rent will continue, although it may have become impossible for him, in consequence of the obstinacy or ill will of the subtenant, and his refusal to quit, to give the landlord full possession.

      2. The lessee for a term of years of two stores sublet one of the stores, and, about a month before the expiration of the lease, notified the subtenant that he did not desire to take a new lease, and, if the subtenant desired to retain possession, he had better see the lessor. The lease expired on Sunday. Prior to that time, the subtenant had commenced packing his goods, preparatory to vacating the store. On the following Monday the lessor’s agent came to the store, took down a sign “To. Rent,” which had been placed there by the lessee, and informed the subtenant that the store had been rented to the lessee. The subtenant, relying upon such statement, and thinking that, the lessee did not wish immediate possession, delayed the removal of his goods for a short time. The lessee, on learning of such delay by being called upon for the payment of a. month’s rent, notified the subtenant, who moved out, and the keys were surrendered to the lessor on the ninth day after the termination of the lease. And it is held that this was not such a holding over as would constitute a new lease by the lessee for another year.
    Error to Wayne. (Hosmer, J.)
    Argued November 2, 1894.
    Decided January 22, 1895.

      Assumpsit. Plaintiff brings error.
    Affirmed.
    The facta are stated in the opinion.

      Ormond F. Hunt, for appellant.

      Broolce é Spalding, for defendant.
   Long, J.

This cause was tried in the court below without a jury, and the following facts found:

1. That the defendant leased of plaintiff on the 8th day of February, 1889, for the period of three years, two brick stores, numbers 32 and 34 Cadillac Square, city of Detroit, and county of Wayne, said term beginning May 1, 1889, the rent being paid in advance in equal monthly installments of 1258.33, payable on the 1st day of each month during the term of the lease; and at the end of the term second party agreed peaceably to leave, surrender/and yield up said premises to the party of the first part, his heirs and assigns.

“ 2. That the rent mentioned in said lease was regularly paid by the defendant in accordance with the terms of' said lease during the period of the term mentioned therein.

“3. That on March 3, 1892, a written notice was given by plaintiff to defendant that the premises 34 Cadillac Square had been rented to third parties, beginning May 1, 1892; that in February, 1892, plaintiff’s agent and defendant had a conversation in which the latter said he would not pay over $1,100 per year rent for 34 Cadillac Square, and the former said he could not rent it for that.

4. That on the 16th day of March plaintiff notified defendant in writing, as follows:

“ ‘ 656 Clinton Avenue,

“‘Detroit, Mich., March 16, 1892.

“ ‘Mr. C. H. Michell,

“ ‘ City.

‘Dear Sir: The rent of store number 84 Cadillac Square, under lease to you, dated February 8, 18S9, and which expires April 80, 1892, will be $1,400 for the year commencing May 1, 1892, the conditions, etc., to be the same as in the current lease. If you want to keep the store or not, please give me an answer by Saturday, the 19th inst., or tell Mr. Janisse.

“ ‘ Yours truly, Alex. M. Campau.’

“ 5. That on March 28, 1892, defendant wrote to Schmidt, his subtenant, hereinafter referred to, a letter of which the following is a copy:

“ ‘ Detroit, Mich., March 28, 1892.

“ ‘ Mr. Schmidt, Esq,

“ ‘ Dear Sir: Please take notice that my lease of store No. 84 Cadillac Square expires May 1, 1892, and, as I do not desire to take a new lease, you had better see Mr. Campau, if you want or wish to keep the store after my lease expires.

“ ‘Yours truly, O. H. Michell.

“ On April 6, 1892, plaintiff wrote defendant as follows:

“ ‘April 6, 1892.

“ ‘ C. H. Michell.

“ ‘ Dear Sir: At your request, I will say that store No. 34 Cadillac Square is to rent for a term of not less than one year; and if possession is not given to me April 30, 1892, I will take it for granted that you wish to keep the store according to the terms mentioned in my note dated March 16, 1892.

“ ‘ Yours truly, Alex. M. Campau.’

“ On April .11, 1892, the defendant sent by mail, on a postal card, the following reply to the above letter, but said postal card was not received by said plaintiff:

“ ‘Detroit, Mich., April 11, 1892.

■“ ‘A. M. Campau, Esq.,

“ ‘ City.

‘Dear Sir: In answer to yours dated April 6, I will sa.y that I have made no request in reference to store No. 34 Cadillac Square, and do not want it any longer than the term of my lease, which ■expires May 1, 1892.

‘Very truly yours,

“ ‘ C. H. Michell.’

“Defendant had never asked for any terms for leasing .said store, except as heretofore stated, and the note was written of April 6 by plaintiff’s. agent, to please plaintiff.

“6. That some time during the year of 1891 defendant sublet the premises 34 Cadillac Square to one Francis T. .Schmidt, and that he continued to occupy said premises as .a grocery store, as such subtenant of defendant, but that the rent was always collected by plaintiff of defendant personally, and there were no contract relations between plaintiff and said Schmidt; that some time previous to the 1st of May defendant hung a sign in said premises, 34 Cadillac Square, substantially as follows: ‘To Bent. Apply to Alexander M. Campan, 656 Clinton avenue, between five and six p. m.’ That said sign remained in the window 'of said store until Monday, the 2d day of May, 1892, when it was taken down by plaintiff.

“ 7. That, about April 23 or 24, said Schmidt, relying ■on the letter of said Michell of March 28, commenced packing and shipping his goods, intending to vacate said .store’May 1, 1892. He did not vacate on Saturday, April 30, because all his goods were not -packed. May 1 was Sunday, and he could not move that day. On Monday, May 2, 1892, he prepared to remove the goods from said store. On the morning of May 2, plaintiff’s agent, Janisse, ■entered the store, and took down the sign above described, and while there saw that preparations were going on for the removal of the goods from the store. Schmidt asked .Janisse why he removed the sign, and whether the store had been rented. Janisse replied that it had. Thereupon ■Schmidt asked whether the party would want immediate possession. Janisse replied he did not know. Schmidt then asked who the new tenant was. Janisse replied that it was Mr. Michell. Said Schmidt, relying on this representation, and thinking that Mr. Michell did not want immediate possession, delayed the removal of his goods for .several days, as hereinafter stated.

“8. That defendant did not know that said Schmidt had not surrendered possession until May 5, 1892, when plaintiff demanded rent for May, and at the same time informed him that Schmidt continued to occupy said store. Defendant at once saw Schmidt, and had a conversation, which informed each of the true situation. Schmidt removed his goods from said store as soon as he could, and the keys of said store were sent to plaintiff’s office on Monday, May 9, 1892. May 14, 1892, plaintiff returned said keys to defendant, and informed him he could not accept them. Defendant refused to accept the keys, but plaintiff threw them on defendant’s show case, and left them there. The holding over by said Schmidt was not intended by him or by said Michell to create a tenancy after May 1, 1892.

“That on the 11th day of July, after this case had been tried in justice’s court, a letter was written by Mr. Hunt, counsel for the plaintiff, as follows:

“ ‘ Detroit, July 11, 1892.

“ * C. H. Michell, Esq.

“ 1 Dear Sir: As attorney for Mr. Campau, I have conferred with Mr. Carpenter, and he has advised that the store premises 34 Cadillac Square be rented. I told him that we considered the premises yours, and that, in case we took possession of it, and any proceeds were received, the same would be credited to your account. I send Mr. Janisse with this note, and, if agreeable to you, you can let him have the keys, and we will do the best we can with the premises upon this basis.

“ ‘Very respectfully,

“ ‘ O. F. Hunt.’

“And on the following day a reply was received from Mr. Carpenter, attorney for defendant, a true copy of which is as follows:

“‘Detroit, Miqh., July 12, 1892.

“ ‘ O. P. Hunt,

“‘Care Grieein, Warner & Hunt,

“ ‘ City.

“ ‘ Dear Sir: I have just looked over your letter of July 11 tO' Mr. Michell, respecting the premises 34 Cadillac Square. Of course, you understand that we claim that we are not responsible for the rent, and that our surrender of the keys to you under the circumstances is in no manner to be deemed as assent to the position contained in your letter. We certainly think the premises should be rented, as I have heretofore stated.

“‘Yours respectfully, W. L. Carpenter.

“That thereafter, and on the 13th day of July, defendant settled with one Borden for occupying sidewalk in front of said premises, without, however, the permission of any one, for the sum of $35, for rent from June 1, 1892.”

On these findings of fact judgment was entered for rent of the store for the month of May at the rate of $1,400 per annum, with interest. The only exception is that the facts found do not support the judgment. Plaintiff brings ■error, and insists that the judgment should have been for the two months’ rent then due.

By the terms of the old lease, the rent was payable monthly in advance, and by the terms of plaintiff’s letter ■of March 16, 1892, the rent was to be paid in the same manner, but at the rate of $1,400 per year. The holding was for less than a month, and it is evident that the defendant did not intend to hold over beyond the year, and create a tenancy after that time. The court found that the holding over by the tenant was not intended by him or by defendant to create a tenancy after May 1, 1892. Plaintiff’s counsel, in his brief, lays down the familiar rule that when a tenant enters under a parol lease for a year, and holds over, and when a tenant under a valid lease for years holds over, the law implies a contract on his part to renew the tenancy on the same terms for another year; but the landlord may treat him as a trespasser, or as a tenant holding over upon the terms of the original lease. And the counsel insists that the case falls within the rule thus laid down, whether the holding over was intentional or involuntary; and says that, if the defendant himself had been in actual possession, and held over for the length of time that the subtenant did, no question could arise but that he would have been held for the year. He also contends that the fact that the premises were occupied by a subtenant could make no difference in the rule, as it was the duty of the tenant to put the subtenant out within the term of the former lease.

Taylor, in his work on Landlord and Tenant (section 524), lays down the rule that—

“If he [the tenant] has let the whole or any part of the premises to an undertenant, who is in possession at the termination of the lease, he must get him out, otherwise he will not be in a situation to render that complete possession to which the landlord is entitled; and, unless the entire possession is delivered up, the tenant’s responsibility for rent will continue, although it may have become impossible for him to give the landlord full possession in consequence of the obstinacy or ill will of an undertenant to whom he has let a part or the whole of the premises, :and who refuses to quit; for in such case the landlord may refuse to accept possession, and hold the original tenant .liable.”

Undoubtedly this is the well-settled rule. Brewer v. Knapp, 1 Pick. 332; Dimock v. Van Bergen, 12 Allen, 551; Lubetkin v. Brewing Co., 21 Abb. N. C. 304.

The defendant contends that to create a new term the holding over by the tenant must be voluntary, and for his own convenience. This is not the rule laid down by the •cases, and we think it would be a very unsafe one. As was said by the court in Haynes v. Aldrich, 133 N. Y. 287, 290:

“Such a holding would introduce an uncertainty into a rule whose chief value lies in its certainty. The consequent confusion would be very great. Excuses would •always be forthcoming, and their sufficiency be subject to the doubtful conclusions of a jury, and no lessor would ■ever know when he could safely promise possession to a new tenant.”

It remains to be seen, therefore, whether the holding •over of the subtenant in the present case, and under the circumstances shown by the facts found, can be construed as an election by the tenant to continue the time for another term. His term expired on April 30. On March 28, the tenant wrote the subtenant that the term would expire on May 1, and that he did not desire to renew the lease. April 23 or 24 the subtenant commenced packing and shipping his goods, intending to vacate May 1. April 30 was Saturday. On Monday, May 2, he prepared to move the goods from the store. On the morning of that-day, plaintiffs agent entered, and took down the sign, “To Rent. Apply to Alexander M. Caropau.” He saw that the subtenant was about to move out. The subtenant asked him why he reihoved the sign, and he said the store had been rented to Michell; and the subtenant, relying upon this, and thinking that Michell did not want immediate possession, delayed the removal for several days. Defendant knew nothing of this until May 5, when plaintiff called upon him for rent. Defendant at once notified the subtenant, who moved out. It is evident that, had the subtenant moved out on Monday, it would have been in time to save any question of holding over. That he did not move at that time appears to have been due to the action of the plaintiff’s agent, who led the subtenant to believe that Michell had renewed the lease. In Scott v. Beecher, 91 Mich. 592, 593, after stating the rule as to-the effect of holding over beyond the time, it was said by this Court:

“An agreement that such holding over should not be so regarded might be shown to rebut the presumption, oi-there might be such clear indications of an intention to vacate that a holding over for a day would not support, the presumption.”

We think, in this case, the facts found by the court below show very clearly the intent of the subtenant to vacate, and that he would have vacated but for the interposition of plaintiff’s agent. If the landlord should be permitted to prevail under these circumstances, it would be permitting him to have advantage of the wrongful acts-of his own agent. Adler v. Mendelson, 74 Wis. 464.

It is not contended by defendant but that the court below was right in his conclusion that the defendant could be held for one month. That he found the rent to be at the rate of $1,400 per year instead of the rate under the old lease does not harm the plaintiff, and the defendant is not here complaining, as he did not appeal.

Judgment is affirmed.

McGrath, 0. J., and Grant, J., concurred with Long, J.

Montgomery, J. I am of the opinion that the facts show such a holding over as to amount to a renewal of the lease as matter of law.

Hooker, J., concurred with Montgomery, J.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    The First Commercial Bank of Pontiac v. James Talbert.

      Partnership — Dissolution—Subsequent indorsements of firm name —Construetion of written authority — Banks and banking — Reorganization of bank.

    1. A member of an insolvent banking firm sent to the cashier of a national bank, ■which held a large amount of commercial paper indorsed by the firm, a writing authorizing his copartner to use his name “ as one of the firm * * * as indorsers on paper ” sent to the cashier to renew the indorsed' paper. And it is held that the intent was to authorize the continuance of the use of the firm name as indorser.
    2. The holder of the paper continued for about eight years to do business as a national bank, when it was reorganized as a State bank under 3 How. Stat. § 320866, which authorizes such reorganization, and provides that “thereupon all assets, real and personal, of said dissolved national bank shall, by act of law, be vested in and become the property of such State bank, subject to all liabilities of said national bank not liquidated under the laws of the United States before such reorganization.” And it is held that said authority inured to the benefit of said State bank, and authorized the indorsement of said firm name upon a renewal note taken by said State bank for the unpaid portion of a note held by said national bank at the time said authority was given.
    8. Said authority should not be construed as confined to the renewal of the particular notes held by the national bank at the time it was given, but with reference to the known situation of the parties, and the evident purpose with which the authority was given, which very plainly was to invest the copartner to whom it was given with a discretion to continue said renewals until the paper could be retired by collection.
    Error to Saginaw. (Wilber, J.)
    Argued November 22, 1894.
    Decided January 22, 1895.

      Assumpsit. Plaintiff brings error.
    Reversed.
    The facts are stated in the opinion.

      Weadoclc & Purcell (A. 0. Baldtvin, of counsel), for appellant.

      Humphrey é Grant, for defendant.
   Montgomery, J.

In 1884, Leroy Moore & Co., composed of Leroy Moore and defendant, James Talbert, were engaged in the banking business at Greenville, Mich., and in June of .that year closed their doors. At this time the First National Bank of Pontiac held about 850,000 of commercial paper with the indorsement of Leroy Moore & Co. Mr. John D. Norton, cashier of the First National Bank, had an interview with the defendant, Talbert, in which Mr. Norton stated to the defendant that the bank held this amount of paper, and should, for its protection, have some writing to hold the defendant, Talbert, on renewals. Subsequently an authority in writing was sent to the bank in the following terms:

“Greenville, Mich., Sept. 15, 1884.

■“ John D. Norton, Cashier.

“Dear Sir: I hereby authorize Leroy Moore to use my name as one of the firm of Leroy Moore & Co. as indorsers •on paper sent you for renewals.

“Very respectfully, James Talbert.”

Among the paper held by the bank at the time of the suspension of Leroy Moore & Co. were notes amounting to upwards of $5,000, signed by 0. S. D. Harroun. The paper of Harroun was renewed from time to time, and ■reduced until the note in suit represents the unpaid portion •of his paper. The present note was taken by the plaintiff, the First Commercial Bank. The First National Bank continued business until January 1, 1893, when the First Commercial Bank was organized under the State banking 'law, and the testimony tends to show that the only change was a reorganization, the First Commercial taking all the paper of the First National, and assuming all its liabilities, ■and having the same stockholders and the same officers •and board of directors.

Three contentions were made by the defendant on the •trial:

1. That the authority relied upon was not an authority do indorse the firm name of Leroy Moore & Co., but the name of James Talbert.

2. That the authority was to indorse paper held by the First National Bank only, and not paper held by the First ■Commercial Bank.

3. That the authority cannot be held to authorize repeated renewals, but must be limited to renewals of paper held by the bank on September 15, 1884, or at the most that defendant could not be held by renewals after such ■original paper would have outlawed. (

The circuit judge directed a verdict for the defendant, and plaintiff appeals.

1. We do not think the authorization open to the con.struction contended for by the defendant. It is suggested that, the authority being "to use my name,” it should be-construed as authorizing Moore to sign the individual name of Talbert, and not the firm name. But we think it clear that the intent was to authorize the continuance of the use of the firm name. In no other way would the name of Talbert be signed as a member of the firm of Leroy Moore & Co.

2. Defendant also insists that, the authority being directed to John B. Norton as cashier of the First National Bank, the plaintiff could not act upon it, and charge the defendant; and cases are cited in which the guaranty of payment of obligations to be in the future incurred to-a particular firm has been held not to bind the guarantor to meet obligations incurred by purchases made of another or different firm, even though the firm be the successor to-the firm addressed. The case of Crane Co. v. Specht, 39 Neb. 123, is a case of this character. There is much force-in the contention of plaintiff that the authorization in question is something more than a guaranty of payment, and is in the nature of a continuation of the partner’s authority to bind the hanking firm of Leroy Moore & Co. by indorsement, and that the instrument should not be-construed with the same strictness.as an ordinary guaranty, but more as in the nature of a continuation of the copartnership for the purpose of dealing with the paper then held by the bank. But, however this may be, we think that the First Commercial Bank is substantially identical with the First National. The State banking law (3 How. Stat. § 3208b6) authorizes the reorganization of a national bank as a State bank. It provides:

“ Thereupon all assets, real and personal, of said dissolved national bank shall, by act of law, be vested in and become the property of such State bank, subject to all liabilities of said national bank not liquidated under the-laws of the United States before such reorganization.”

It was evidently under this statute that the reorganization was effected, as the testimony is that the First Commercial took all the paper of the First National, and assumed all the liabilities, and had the same board of directors and stockholders at the time of it. In the well-considered case of Bank v. Phelps, 97 N. Y. 44, a question which we think is precisely analogous to the one here under consideration was considered. The court held that a national bank, which was a reorganization of a former state bank, retained its identity so that a guaranty of payment made to the state bank could be enforced by the reorganized national bank. It was said:

All property and rights which they held before organizing as national banks are continued to be vested in them under their new status. Great inconveniences might result if this saving of their existing assets did not include pending executory contracts and pending guaranties as well as vested rights of property. Although, in form, their property and rights as state banks purport to be transferred to them in their new status as national banks, yet in substance there is no actual transfer from one body to another, but a continuation of the same body under a changed jurisdiction. As between it and those who have contracted with it, it retains its identity, notwithstanding its acceptance of the privilege of organizing under the national banking act.”

3. Nor do we think that the authorization should be ■construed as limiting the authority to one to make the renewals of the particular notes then held by the bank. The statement should be construed with reference to the known situation of the parties, and the evident purpose with which it was executed, which very plainly was to invest Moore with a discretion to continue these renewals •until the paper could be retired by collection.

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

The other Justices concurred.


text:
    St. Ange Duplanty v. William Stokes and David Kelley.

      Contract — Sale of logs — Delivery—Waiver of conditions — Pleading —Bill of .particulars — Evidence—Measurement—Acceptance of timber — Estoppel.
    1. In a suit to recover the balance claimed to be due upon a contract for the delivery of a certain amount of timber by a given date, the plaintiff was permitted to show that, when he reached the mouth of the river down which the timber had to be run, he found a boom strung across the river; that he consulted the attorney of the defendants as to his right to cut the boom; that, when about to cut it, one of the defendants told him it was best not to do so, and that there was no hurry about the delivery of the timber; that, acting upon his statement, plaintiff was detained there several weeks, and prevented from delivering the timber by the agreed time. And it is held that the testimony was admissible as tending to show that the delay was assented to by the defendants; citing, Barton v. Cray, 57 Mich. 622.
    2. A bill of particulars, in a suit commenced by a common-count declaration to recover the balance claimed to be due upon a contract for the delivery of a quantity of timber astern of a. vessel at a certain city, contained a charge for “cash paid for labor of men in watching raft, and looking after the same at request of defendants.” And it is held that the bill of particulars is broad enough to admit proof of the delivery of a raft of the timber at a certain shipyard, instead of astern of a vessel, and that the plaintiff was requested by the defendants to look after the raft, and did so, and charged defendants with his time.
    8. The contract provided that the timber should average 55 cubic feet per stick. Some timber of a less average was delivered, and testimony was admitted to show that after the contract was made, and before the timber was delivered, plaintiff was. offered 24 cents per foot, being 2| cents less than the contract price, for said timber. And it is held that an objection that the testimony was too remote in point of time is untenable.

      4. The contract further provided that the timber should be suitable for a designated Canadian market. The defendants sold one raft of the timber to a Michigan ship-builder, whose scaler measured it as between defendants and the purchaser. The scaler testified that, at the request of the defendants, he used, in making said measurement, the Canadian hook and rule, and that this would give less timber than if he had used the American hook. He was then permitted to testify as to the difference between the American and Canadian hooks in measuring timber. And it. is held that the testimony was admissible.
    8. The defendants claimed damages for the non-performance of the contract, in that the timber delivered did not average the required number of feet per stick, and that it was not suitable-for said Canadian market. On the trial the defendants sought, to show by the testimony of one of them that they would not’have contracted for timber of a less average number of feet, per stick. And it is held that said testimony was properly excluded, as it would not have added to defendants’ rights, under their contract.

    6. One of the defendants was inquired of, on cross-examination,. as to whether he had a vessel to take the timber on the day limited for its delivery. And it is held that the inquiry was proper as bearing upon the question whether or not he understood that he had waived the delay in delivering the timber, as claimed by the plaintiff.
    7. The marking by defendants of that portion of the timber considered to be suitable for the designated market if of the required average (the title to which timber vested in them as manufactured in the woods), and the subsequent receipt of the same, upon the agreement that the timber should be made to average 55 cubic feet per stick by supplying other larger timber, which was not done, will not preclude the defense that said timber so marked was below the specified average.
    Error to Bay. (Cobb, J.)
    Submitted on briefs November 23, 1894.
    Decided January 22, 1895.

      Assumpsit. Defendants bring error.
    Reversed.
    The facts are stated in the opinion.

      T. A. E. & J. 0. Weadoclc, for appellants.

      Simonson, Gillett & Oourtright, for plaintiff.

       The defendants’ counsel, in their brief, claimed that the testimony was admissible, because it would have served to explain the-fact that the defendants were buying timber for said Canadian market only; that said market required timber averaging not less than 55 cubic feet per stick; and that they would not have contracted for timber averaging a less number of feet.

   Montgomery, J.

Plaintiff recovered a balance claimed to be due him. for certain lumber, logs, and square white oak timber. It was conceded on the trial that plaintiff had furnished board pine and saw logs, and was entitled to a credit therefor of $1,853.50. The dispute arose over the allowance which should be made to plaintiff on account of square oak timber, and over the damages claimed by defendants for the non-performance of the special contract by plaintiff. The agreement between the parties was in writing, and, by the terms of it, plaintiff agreed to sell to the defendants 20,000 cubic feet of square white oak timber suitable for the Quebec market, and to deliver the same astern a vessel in Saginaw river, at Bay City, on or before June 1, 1890, all of said timber to average 55 cubic feet per stick. The defendants undertook to pay plaintiff at the rate of 26£ cents per cubic foot for all of .said timber manufactured and delivered in the manner recited, “which said sum shall be payable as follows: 15 nents per cubic foot when manufactured in the woods; 5 ■cents per cubic foot when delivered on the railroad; and the balance when said timber is delivered astern of a vessel at Bay City.” A further provision of the contract was that the title to said lumber should be vested in said Stokes and Kelley from the time the said timber was manufactured in the woods.

1. It was shown on the trial that the plaintiff had run the timber down the Chippewa, and, when he reached the mouth of the Chippewa river with his drive, he found a boom across the mouth of the river, placed there by the owner of a mill maintained at that place. Plaintiff was permitted to show, against defendants’ objection, that he consulted defendants’ attorney relative to his right to cut the boom, and went np on purpose to cut the boom, and •defendant Kelley said to him it was not best to do so, as it would make hard fdelings, and there was no hurry about any of the timber, and there would be time enough, and not to cut the boom; and that, acting upon this, the plaintiff was detained there five weeks. He was therefore not able to deliver the timber at the date contemplated. We think this testimony was competent as tending to show that the delay was assented to by defendants. Barton v. Gray, 57 Mich. 622.

2. The next objection is to the admission of testimony •on the part of the plaintiff to show that a raft of timber was delivered at Davidson's shipyard, instead of astern of :a vessel, and that plaintiff was requested by defendants to look after the raft, and did so, and charged defendants with his time. We think the bill of particulars was broad ■enough to admit of the proof, and that there was sufficient to justify an inference by the jury of a promise to pay for this service.

3. Some timber was delivered smaller than the average required, and testimony was admitted to show that plaintiff had been offered 24 cents per foot for such timber. The objection seems to be that the testimony as to the price offered was too remote in point of time, but we think not, as it was after the making of the contract, and before delivery.

4. The fifth assignment of error is based upon a ruling of the court in permitting a witness to testify as to the difference between the American and Canadian hooks used in measuring timber. Defendants' counsel, in their brief, state:

The error of this ruling will be seen when it is recalled that the raft of logs which was sold to Davidson, and which McDonald measured, was measured by the .American hook, which is most favorable to the seller; and it was simply introducing into a case an element which could serve no purpose except to confuse the jury.”

But the witness who measured the timber testified that—

“In measuring the 620 pieces, I used the Canadian hook and rule, at Mr. Stokes' request. That would give less timber than if measured by the American hook. Mr. Stokes was with me when I was measuring it. In figuring the amount, we used a ready reckoner and the Canadian rule."

5. The next assignment of error is based upon the refusal of the court to permit the defendant Kelley to testify as to whether he would have contracted with plaintiff for timber averaging less than 55 cubic feet per stick at the time he made the contract, in the fall of 1889. This ruling was clearly proper. The defendants were entitled to the benefit of their contract without regard to whether they would have contracted for a less average at the time.

6. Error is assigned upon permitting questions to be put to the witness Kelley, on cross-examination, as to whether he had a boat to take the timber on the 1st of June. We cannot say that this did not l^ave some bearing upon the question as to whether he understood that he had waived the delay, as claimed by the plaintiff.

7. It appears that, during the time this timber was being manufactured, the defendants sent their scaler into the woods, who scaled and marked the timber, a portion being marked S & K, which was supposed to be that suitable for the Quebec market, and some marked S & K, diamond. That marked S & K, as appeared by the testimony, was only suitable for the Quebec market in case the average of the lot should be 55 feet. The court ruled, in effect, that an acceptance of the timber marked S & K, being the mark designed for timber suitable for the Quebec market, was conclusive, and the defendants could not afterwards assert-that this timber did not average 55 feet. It is undoubtedly the general rule that an acceptance of a commodity furnished in pursuance of an executory contract, as in compliance with the terms of such contract, is conclusive upon the purchaser, and he cannot afterwards be heard to say that the article does not answer the terms of the description. But we think that rule was misapplied in the present case. Under the contract between the parties, the title to the timber vested in the defendants from the time it was manufactured in the woods; and one of the defendants testified that he looked over the timber, and found it very small in average; that he told plaintiff that his average was very low, and that he would have to get some much larger timber to make up his average according to his contract; that he said he would, that he had the timber bought, — the stumpage. Defendant further testified: “I went two or three times during the winter with the culler. The timber was not growing larger in average. I had a talk with Mr. Duplanty after the first time. I made some complaints to him. At this time considerable money had been given to Mr. Duplanty.” So it would appear that the money was advanced upon a distinct understanding that this timber which had been marked by the defendants, and the title to which had, under the terms of the contract, vested in the defendants, should be made to average 55 feet by supplying other larger timber, which was not done. Under these circumstances, we do not think the acceptance of the timber prevents defendants from raising the question of whether it complies with the contract. They were not bound to reject it, and thereby lose their lien upon it, particularly as plaintiff testified:

“I had a talk with him [defendant Stokes] about the timber that would be under the average. I asked him what was going to be done about the small timber. That was the timber that was under the average. * * * ‘Well/ he says, ‘we will have to do as I said; we will have to take it down, and you can sell it to whom you like.’ ‘Well, all right/ says I. And I met Mr. Armstrong, the man that buys timber for Mr. Wheeler. I was acquainted with him, and he spoke to me about some small timber. After that I saw Mr. Stokes, and I told him what I could get for the square timber. He says, ‘We wrill give you the same.’ I told him I was offered 24 cents for the small timber that was under the average, and he said, ‘ If you were offered 24 cents, I will give you the same.’ So he kept that, too. He accepted both the small and large timber that I delivered. Mr. Stokes-did not make any objections to any of the timber, nor did Mr. Kelley, either as to size or how it was made.”

It is very clear that, under this testimony, the defendants were not bound by the receipt of the timber to pay the contract price for anything below such as would make the average 55 feet, unless the fact of having placed the mark indicating that the timber was suitable for the Quebec market (S & K) upon the timber in the woods concluded them. But we think, if defendants’ testimony were to be accepted by the jury, it is not conclusively shown that these marks and the subsequent receipt of the timber evidenced any such intent, as by that testimony the mark was placed there provisionally, and defendants had the right to rely upon the plaintiff’s agreement to supply enough larger timber to bring the average up to 55 feet.

We think none of the other questions are likely to arise upon a new trial.

The judgment will be reversed, with costs, and a new trial ordered.

The other Justices concurred.

       See Talbot Paving Co. v. Gorman, 103 Mich. 403.


text:
    The Fort Street Union Depot Company v. The Peninsular Stove Company.

      Union depot companies — Eminent domain — Appeal.
    The questions involved in this case are ruled by Fort Street Union Depot Co. v. Backus, 92 Mich. 33.
    Appeal from Wayne. (Gartner, J.)
    Argued November 23, 1894.
    Decided January 22, 1895.
    Proceedings to condemn land for union depot purposes, under Act No. 244, Laws of 1881 (Iiow. Stat. chap. 93). Petitioner appeals from an award of $49,800 in favor of respondent.
    Award set aside, and new trial ordered.
    The facts are stated in the opinion, and in 92 Mich. 33.

      p. A. Baker, for petitioner and appellant.

      Edwin F. Gonely and Orla B. Taylor, for respondent.
   Montgomery, J.

This is a proceeding for condemnation of lands. The trial in the court below occurred after the trial in the case of Fort Street Union Depot Co. v. Backus, 92 Mich. 33, and before the decision of that case by this Court. The same line of testimony was introduced, and the same contentions of counsel made, in this case, as were held in that case to have tended unreasonably to swell the verdict of the jury, and that decision must be held controlling.

It is strenuously insisted that the depot company has lost its right to appeal by having made payment of the award, and having occupied the land condemned pending the appeal. This question was likewise considered in the case of Fort Street Union Depot Co. v. Backus, and ruled adversely to the contention which is now made by the appellee. We have carefully considered the arguments adduced by the appellee, and do not feel justified in departing from the conclusion arrived at in that case.

It follows that the order should be reversed, and a new trial ordered.

The other Justices concurred.


author: Grant, J.

text:
    Byron Green v. Frank G. Russell.

      Will — Grant of poiver to executor — Authority of administrator with will annexed — Sale of real estate — “Satisfactory” title.

    1. A testatrix made specific bequests amounting to about $15,000. Her property consisted of a house and lot valued at $25,000, and an insignificant amount of personal property. The will directed the executor to pay, out of the first moneys received by him from any portion of the estate, the debts and funeral expenses of the testatrix, and vested in him full power to dispose of the real estate in fee simple, or for a term of years, or otherwise. The executor refused to accept the trust, and an administrator with the will annexed was appointed, who advertised and sold the house and lot under the power contained in the will. The purchaser paid a portion of the purchase money, and, under the advice of two lawyers of experience, refused to pay the remainder unless the administrator would obtain authority to sell under the order or decree of the probate court. On the refusal of the administrator to do this, the purchaser sued him to recover the money paid. And it is held that the trust was not one personal to the executor named in the will, but was properly executed by the administrator, under How. Stat. § 5840, which provides that such an administrator shall proceed in all things to execute the trust in the same manner as an executor would be required to do.
    2. The receipt given for the down payment stated that the remainder of the purchase price was to be paid in 30 days, and that the amount receipted for was to be refunded in case the title to the house and lot was not satisfactory. And it is held that the purchaser was justified in refusing to be satisfied with the title tendered, and in rescinding the sale, and bringing suit to recover the money paid.
    Error to Wayne. (Frazer, J.)
    Argued January 9, 1895.
    Decided January 22, 1895.

      Asstimjosit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      W. 0. Harris (O. A. Kent, of counsel), for appellant.

      John D. Gonely, for plaintiff.
   Grant, J.

Louisa P. Roberts died testate January 26, 1892. The date of the will is not given in the record. It made many specific bequests, amounting in all to about $15,000. Her property consisted of the house and land where she lived, valued at $25,000. Her personal property was insignificant in amount. The will contained the following provisions, upon which arises the first question in the case:

“I direct that all my debts and funeral expenses be paid, as soon after my decease as possible, out of the first moneys that shall come into the hands of my executor from any portion of my estate, real or personal.

I do hereby vest in my executor, hereinafter named, full power and authority to dispose of my real estate in fee ■simple, or for a term of years, or otherwise, in as full and large a manner as I could myself do, if living.” .

“I desire that the sale of my house shall not be a forced one.”

“I do hereby make and ordain Julien Elisha Winder, ■of Detroit, Wayne county, Michigan, executor of this, my last will and testament.”

Mr. Winder declined to accept the executorship, and defendant was appointed administrator with the will annexed. He assumed that he had the same power of alienation, under this will and under the statute, that Mr. Winder would have had. December 11, 1892, he advertised the-property for sale. The terms were cash. The right to-adjourn sale was reserved. The title was stated to be perfect, and a complete Burton abstract offered. Plaintiff bid the property in at the sale for $25,000. Two thousand dollars was paid down and a receipt given, the balance-being payable in 30 days. The receipt contained the following:

“The said $2,000.00 to be refunded in case the title of said lot is not satisfactory.”

Plaintiff took the advice of two lawyers of good standing and experience, who advised him that, in their opinion, defendant had no authority, under the will, to convey the title, - and plaintiff offered to take the property if defendant-would obtain authority to sell under the order or decree of the probate court. Defendant declined to do this. Plaintiff refused to pay the balance, and instituted this suit to-recover the $2,000. The court directed a verdict for plaintiff.

1. Was the defendant, as administrator with the will annexed, authorized to sell the real estate without an order from the probate court? While there is no express mandate in the will to sell the property, we think it entirely clear that it authorized the sale, and that that sale should' be made by the executor. The absolute title in fee was-vested in him for that purpose, with as full power to sell as the testatrix herself had when living. She owned no-other real estate. She spoke expressly of the sale of this-land. While the amount of her personal property at the-time of the execution of the will does not appear, yet we-think it manifest that she intended that this real estate-should and must be sold in order to pay the legacies. The only objection urged against this power is that it was a personal power or trust lodged in Mr. Winder independently of his power as executor. There is nothing in this will to indicate any other or different trust and confidence than must be reposed in every executor chosen by the testator. Nor is there any other duty imposed upon him than that which must exist in every will which names an executor. The sole power conferred was to dispose of the property of the testatrix, pay the expenses of the-administration, her debts and funeral expenses, and the legacies. It was necessary to sell all her property to accomplish that purpose. Whatever is left must be distributed among her heirs. He had no discretion reposed in him, and no funds placed in his hands to keep for the benefit .of any one. Under these circumstances, the defendant may execute the trust and convey the land in the same manner as the executor named. To hold otherwise would be to negative the provisions of the statute, which expressly provides that such administrator “shall proceed in all things to execute the trust in the same manner as an executor would be required to do.” How. Stat. § 5840. The statute, moreover, expressly provides that the word “executor” shall be construed to include an administrator with the will annexed. How. Stat. § 5823. The clear weight of authority supports this position. Giberson v. Giberson, 43 N. J. Eq. 116. In a valuable note to that case will be found collected the authorities on this subject, under two heads, viz., those where words have been held to confer a personal discretion, and those holding that no such discretion was imposed. Under the statute of New York, which is similar in language to our own, it was at first held that this power was personal. Conklin v. Egerton, 21 Wend. 430. The soundness of that decision was early questioned by Chancellor Walworth in Egerton v. Conklin, 25 Wend. 224. The decision was expressly overruled in Mott v. Ackerman, 92 N. Y. 539. See, also, Venable v. Deposit Co., 74 Md. 187; Bay v. Posner, 78 Id. 42; Schroeder v. Wilcox, 39 Neb. 136. The language of Chief Justice Cooley in Vernor v. Coville, 54 Mich. 281, appears to cover this case. It follows that the court was in error in holding that this was a trust personal to the executor named.

2. Had the plaintiff the right to refuse to carry out the sale for the reason that the title was not satisfactory to him? This* cannot now be determined against him upon the ground that this Court has decided in this case that, the defendant possessed the power to convey. He acted reasonably, and not captiously. A large amount of money and valuable property were involved. The question had not been expressly decided by this Court. In Bennett v. Chapin, 77 Mich. 526, two Justices of this Court had held that the trust involved in that case was a personal one. It is true that the provisions of that will were different from those of this. But that decision, as well as others, was sufficient to justify him in refusing to be satisfied with the title. He was not obliged to incur the expense or run the risk of a lawsuit to determine the validity of the title to be conveyed. His conduct does not come within that maxim of the law which holds a man to be satisfied with that which he ought to be satisfied. He acted as any prudent and cautious man would act. He was therefore entitled to rescind the sale, and bring suit to recover his money. Lord v. Stephens, 1 Younge & C. Exch. 222. It is unnecessary to determine the effect of an arbitrary refusal where no doubt exists as to the title. As to this question, we express no opinion.

The judgment is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    Lizzie Clark Roehm v. The Estate of David C. Clark, Deceased.

      Will — Payment of legacy — Support of family of testator,
    1. A testator appointed his widow sole executrix of his will and guardian of' his minor children, and directed that during their minority, from the income of his entire estate, which was placed under her control, she should maintain a home for herself and said children, provide for their proper education, pay certain legacies, and add the remainder of the income, if any, to the estate. And it is held that the legacies must yield to the necessities of the family, which, must first be provided for.
    2. The fact that the executrix fails to reduce expenses, as her altered circumstances would seem to require,'is unimportant, so long as the income from the estate is not extravagantly used.
    Error to Wayne. (Hosmer, J.)
    Argued January 9, 1895.
    Decided January 22, 1895.
    Appeal from an order of the probate court granting the petition of a legatee for the payment of a legacy or the removal of the executrix. Petitioner brings error from an order of the circuit court reversing the order of the probate court.
    Affirmed.
    The facts are stated in the opinion.

      James O. Smith, Jr. (Hoyt Post, of counsel), for appellant.

      .Edwin F. Gonely and Orla B. ■ Taylor, for the estate.
   Hooker, J.

David O. Clark, late of Detroit, who died •June 3, 1888, left a widow, Marcella Clark, and six children, -of whom petitioner is one. Of these children, one died .May 15, 1891, and three others were minors, aged, respectively, 14, 10, and 8 years. The first clause of Mr. Clark’s •will appointed his wife, Marcella Clark, executrix of the will and testamentary guardian of the minor children, and •.requested that no bond be required from her in either ■capacity. The second clause directed that unsecured debts be paid promptly out of his personal estate. The third clause directed that a mortgage to the Detroit Savings Bank, of $18,000, be paid out of the testator’s share in the common stock of the partnership of Clark, Vinton & <Co. It advised his wife to pay from the proceeds of his life insurance (which, by its terms, belonged to her) at least ■410,000 upon the principal of this mortgage, and provided for her repayment, in case of her compliance, by a con•ditional bequest of a sufficient -sum from said partnership property to reimburse her. The fourth, fifth, and sixth •clauses of the will were as follows:

“Fourth. Subject to the bequest to my wife, above, and ■•■subsequent directions of this will, I give, devise, and bequeath to each of my children, Nettie M. Clark, Lizzie A. ■Clark, D. Charles Clark, Mary Clark, Hazel K. Clark, and Harold Shaw Clark, an equal, undivided share of my real ■and personal estate, to them and to their heirs and1, assigns iorever; but the right of possession of the shares so given to them shall not become operative until the youngest child who shall survive to reach majority shall become of .age. The foregoing devise and bequest to my children shall also be subject to the condition that if any one of my children shall die under age, and without issue, the .share of such child I give, devise, and bequeath, in equal parts, to the remaining children. But the shares of each, under the foregoing devise and bequest, shall be deemed do be vested thereby, so that any one or more of my said ■children dying before the youngest becomes of age, having reached majority, or leaving issue, the share of such child ■shall go to such '‘issue, or in accordance with a lawful will made by such child after becoming of legal age.
“Fifth. Before distribution shall be made of my undivided estate to my children, as provided above, provision shall be made for my wife; and, to that end, I give, devise, ■and bequeath to my wife, Marcella Clark, for her natural life, the use of one-third of my personal and real estate, less the amount of insurance upon my life she may have received, and after her death the estate so set off to her ■shall become the property of' my said children, in all respects, as the remainder of the estate according to the provisions of the fourth paragraph of this will. I also give to my wife all our household furniture of every kind.
“Sixth. Pending the minority of the youngest of my said children who shall live to be 21 years of age, I direct my executrix to collect my personal estate, and invest the same, as far as practicable, in good, interest-bearing security, and collect the entire income thereof; also, to take and retain possession and control of my real estate, to collect the rents, to keep the property in good repair, and to pay the taxes and insurance upon the same. For the purpose of ■such control, I authorize her to make leases for such periods as she may deem best, not extending more than 3 years beyond the time when the youngest child will reach majority. From the income of the entire estate so to be•collected by my wife, as executrix, I direct her to maintain a home for herself and all our children, and to provide for their proper education; and if anything can be ■saved from the. income, after proper and comfortable provision for the family, and the payments here following, I direct that it. be added to the capital of the estate. .From the annual income, I direct my executrix also to pay to each of my daughters, Nettie M. and Lizzie A. ■Clark, and to my daughters Mary and Hazel K., when they become 21 years of age, respectively, the sum ■of $125 each year, so long as they remain at home, and, in ease they cease to live at home with my family, then to give them each the sum of $300, annually, payable •quarterly; such payments to begin at the end of one year from the time this will be proved. I recommend my •executrix to give to my son D. Charles similar payments .after he becomes of legal age.”

Mrs. Clark has managed the estate, with the aid of Mr» Bissell, her counsel, and possibly her daughter, the petitioner. In March, 1892, a petition was filed in the probate’ court by Mrs. Roehm, the daughter of Mr. and Mrs. Clark, asking that the latter be required to pay the petitioner the-legacy provided by the sixth clause of the will, or, in default thereof, that she be removed from her office as executrix;, and, being carried to the circuit court, the prayer of petitioner was denied, from which decision she has appealed: to this Court.

The sixth clause of the will directs the maintenance of a home for the widow and all the children, and the education of the latter, from the income of the entire estate, which is subjected to this burden and the payment of the legacies mentioned. We understand, from the argument, that it is not disputed that the legacies must yield to the-necessities of the family, as, in our opinion, the language’ of the will implies, and that, therefore, the case resolves-itself into the question of the sufficiency of the fund for these purposes. It appears that Mrs. Clark advanced $13,000 of her own insurance money to pay on the mortgage, and the Clark, Vinton & Co. property was sold. At. the close of the first year, the estate consisted of ^the following property:

1. Second avenue block (four houses and lots), at. $25,000
2. Brainard street house and lot.................. 6,500
3. Bagg street house and lot...................... 11,000
4. High street house and lot.................. 2,800
5. Half interest in Otsego, county lands........... 720 •
6. Henry street houses and lots................ 12,500
Total....................................J — - $58,520

The Bagg street house was, and still is, the homestead, and appears to have consisted of a valuable piece of land, upon which was a 'reasonably good house.

It is contended on behalf of the petitioner that Mrs» Clark has been extravagant (1) in her expenditures for the family; (2) in remaining in the Bagg street house, instead •of taking one of the less valuable places; (3) in building a $3,000 vault.

In support of the first of these propositions, it is said that she paid for the family the following sums:

For the first 13J months........................ $4,136 35
For the second year............................ 3,097 18
For the third year.............................. 3,612 36

These items appear in accounts which seem to have been «drawn by Bissell, signed by Mrs. Clark, and filed in the probate court. The accounts show that for the year ending July 15, 1890, the gross receipts from the estate amounted to $3,412.92; disbursements, in the nature of expenses incident to the estate, $2,088.96; leaving a balance, subject to use for the support of the family and payment of the legacies, of $1,323.96.

The next account (July 15, 1890, to August 1, 1891) shows:

Gross receipts....................................$3,563 92
Expenses of the estate.......................'____ 2,717 78
Balance......................................$ 846 14

■ The year ending August 1, 1892, makes a better showing:

• Total receipts....................................$3,430 92 ■
Expenses (which included the funeral of the child
who died).................................... 2,025 99
Leaving a balance of........................$1,404 93

The fact remains that the actual expenses of supporting the family are shown to have been much more. Perhaps there is room for saying that Mrs.-Clark has not succeeded •in reducing expenses as her altered circumstances seem to Require, but that fact is unimportant, so long as the income from the estate, which is chargeable with this burden, has not been extravagantly used. We are of the opinion that the circuit court reached a just conclusion-when it determined that the petitioner was not entitled to relief, and. dismissed the petition without prejudice to-another application when altered circumstances may show that it is warranted.

His judgment will therefore be affirmed, with costs.

The other Justices concurred.


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    Edward H. Rankin v. Albert A. Crane et al.

      Malicious prosecution — Probable cause — Burden of proof — Instructions to jufy — Embezzlement.
    1. In an action for malicious prosecution, the burden of proof is upon the plaintiff to show want of probable cause.

      ± A prima facie case may be made by showing plaintiff’s discharge, but it is not conclusive.
    3. Where there is no dispute as to the facts, want of probable causéis a question of law to be determined by the court.
    4. Where the evidence as to the facts claimed by the plaintiff to-show want of probable cause is conflicting, it is the duty of' the court to instruct the jury clearly what facts, when established, will justify a finding of want of probable cause, and a, general charge is not sufficient.
    5. A trusted employé, coming to the conclusion that his services were to be dispensed with before the expiration of the year for which he was hired, discounted a note received from a oustomer, and which he should have deposited to his employers’ credit, at a bank outside of the State, and appropriated a portion of the money in payment of his unearned salary, whereupon his employers caused his arrest on a charge of embezzlement. And in an action for malicious prosecution thereafter instituted by the employé it is held that the court should have instructed the jury that want of probable cause was not established by the evidence, but, on the contrary, that it did establish probable cause.

      6. The existence of probable cause being thus established, the motives of defendants in causing the arrest of plaintiff are immaterial, and the fact that they offered to refrain from> such prosecution if plaintiff would repay the money he had', misappropriated is not sufficient to establish want of probable-, cause.
    Error to Lenawee. (Lane, J.)
    Argued January 10, 1895.
    Decided January 22, 1895.
    Case. Defendants bring error.
    Reversed, and no new-trial ordered.
    The facts are stated in the opinion.

      Watts, Bean é Smith and Shepard & Lyon, for appellants:.

      John B. Bird and L. H. Salslury, for plaintiff.
   Grant, J.

The defendants were copartners doing a manufacturing business in Tecumseh. Plaintiff was their-trusted clerk and employé, keeping their books, and having the substantial charge of the business. Plaintiff entered their employ March 17, 1888, under a verbal contract, claimed by him to be for a year, but by the-defendants to be indefinite as to time. The salary was at-the rate of $1,000 per year, payable monthly. Plaintiff' took his pay monthly, and charged it to himself upon the-books. The banking business was done with the banking" house of O. P. Bills & 0o., Mr. Bills being one of the-defendants. On but one occasion previous to the one now" in question had the plaintiff discounted any paper of the-firm, or done any banking business, with any one but. O. P. Bills & Co. Defendants testified that they instructed plaintiff to do all his business at that bank.. Plaintiff testified that he was not so instructed. The partnership of the defendants was formed in January, 1888, to continue for a year. Early in December, 1888, plaintiff came to the conclusion that defendants intended to dispense with his services. The only reason he had for-this conclusion was that he thought he saw indications that they were going to sell out. Some time during the week ending Saturday, December 23, a note, dated December 13, and executed by Eiler, Breitweiser & Co., customers of the defendants, was received in the due course <of mail by the plaintiff. On December 22 the plaintiff took this note, went to Toledo, Ohio, discounted it at the First National Bank, and secured two drafts, one payable to his own order for $225.74, and the other payable to the firm, which he afterwards deposited to defendants’ credit in the bank of O. P. Bills & Go. Plaintiff took this money as payment for his unrendered services for the remainder of the year. At the same time he 'took $25 of this money in payment for a few hours’ work on two evenings in examining the books of another company, which were a part of the assets of the defendants. He testified that defendants instructed him to do this work, and that nothing was said about payment. He presented a bill to the other company, which refused payment. He testified:

“ So [after that company’s refusal] then I paid myself before I had any talk with either of the defendants about ■it. I did not present a bill to the defendants, nor say .anything to them about it, because I thought when I saw them it might be under adverse circumstances.”

Plaintiff admitted that he knew he had no right to take the money in payment of this unearned salary; that he knew he would be liable to • the defendants in a civil action for its recovery. He refused to pay it back when demanded, and told his employers that he intended to keep it. He testified:

" I took this note to Toledo for the purpose of getting the money -for myself out of it. That is one of the main purposes. There might have been some minor reasons, but I do not think of any now. If I had discounted it at the bank of O. P. Bills & Co., I would not have been liable to have gotten the money upon my salary. I would probably not have received it. * * * I never intended to pay that money back in the world. If I had, I should not have appropriated it at that time. I suspected that I was taking this money in a manner that might leave me liable to a suit, yes, in a civil way. * * * I knejv that I had not earned it. * * * I knew that defendants were abundantly responsible."

The defendants made a substantial statement of the facts to Mr. Watts, an attorney of experience and good standing, who advised them that the plaintiff was, guilty of embezzlement under the statute, and that they further advise with the prosecuting attorney, which they did. He advised the prosecution, which was instituted. Upon the examination, which was conducted by the prosecuting attorney, the plaintiff was discharged, whereupon he instituted this suit for malicious prosecution, in which he recovered verdict and judgment.

The burden of proof was upon the plaintiff to show want of probable cause. A prima faoie case may be made by showing a plaintiff's discharge, but it is not conclusive. In this case there is no dispute as to the facts. It is the settled rule in this State that, the facts being conceded, want of probable cause is a question of law to be determined by the court. If there is a conflict of evidence" as to the facts claimed by the plaintiff to show this, it is the duty of the court to instruct the jury clearly what facts, when established, will justify a finding of want of probable cause. A general charge is not sufficient. Hamilton v. Smith, 39 Mich. 222; Wilson v. Bowen, 64 Id. 133; Huntington v. Gault, 81 Id. 144; Ball v. Rawles, 93 Cal. 222. See, also, Perry v. Sulier, 92 Mich. 72; Harris v. Woodford, 98 Id. 147.

The court in the present case did not instruct the jury as to what facts relied upon by the plaintiff would constitute want of probable cause. The court, however, should have instructed the jury that want of probable canse was not established by the evidence, but, on the contrary, that it did establish probable cause. The plaintiff took the money knowing that it was not his, and that he had no right to it. He knew that it was his duty to deposit the note at the bank with which the firm did its* banking business. Instead of doing this, he took the note, and went out of the State, to get it discounted, for the express purpose of getting an unjustifiable advantage over his employers. The court instructed the jury that the plaintiff had no right to take the money, and that he committed a wrong against his employers in doing so, but left it to the jury to determine whether in taking it he honestly believed that he had a right to do so. The question is not to be determined by the amount, but by the principle involved. If he possessed the right to take $225 which he-had not earned, upon the fear that he was to be discharged,, he would have the right to take $10,000 for the same-reason. It is difficult to understand why this was not a. fraudulent conversion under the statute. The iñtent is often to be inferred from admitted facts, and where a. trusted employé takes the property of his employer, and converts it to his own use, knowing that he has no right to it, it would seem reasonable that the fraudulent intent-should be inferred. We need not, however, pass upon this question. It is sufficient to say that probable cause-existed. This being established, the motives of the prosecutor are immaterial, and the fact that defendants offered to refrain from criminal prosecution if the plaintiff would repay the money he had misappropriated is not sufficient to establish want of probable cause. However-unjustifiable in law it may be to compound a felony by a promise not to prosecute an employé who has misappropriated funds, yet it is common knowledge that-in nearly all cases of embezzlement the repayment of the> money will secure exemption from prosecution by the employer. It would be little short of absurdity to hold that such an offer or promise will stamp the transaction as innocent, and permit an employer to he mulcted in damages on the ground that there was no probable cause, simply because the employer promised not to prosecute if the amount were paid.

Judgment reversed, and no new trial ordered. The defendants will recover the costs of both courts.

Montgomery and' Hooker, JJ., concurred with Grant, J. McGrath, G. J., concurred in the result. Long, J., did not sit.


text:
    In the Matter of the Estate of Theodore Chapoton, Deceased. Appeal of Elizabeth N. Phelps, Guardian of Edgar and Arthur Chapoton, Minors.

      Descent of property — “ Children” — Bight of representation.-

    The word “children,” as used in 3 How. Stat. § 5772a, subd. 2, which provides that, if the intestate shall leave no issue, father, or mother, his or her estate shall descend, subject to the provision made in said section for the widow or husband, if a widow or husband survive the deceased, in equal shares to his or her brothers and sisters, and the children of deceased brothers and sisters, by right of representation, does not include the grandchildren of a deceased brother or sister of the intestate.
    Error to Wayne. (Hosmer, J.)
    Argued January 11, 1895.
    Decided January 22, 1895.

      Appeal from an order of the probate court denying the right of the wards of the appellant to share in the distribution of the estate of their granduncle. The guardian brings error from a judgment of the circuit court affirming the order appealed from.
    'Affirmed.
    The facts are stated in the opinion.

      Griffin & Warner, for appellant.

      John W. A. S. Cullen and Sidney T. Miller, for the estate.

       Amended by Act No. 200, Laws of 1893.

   Hooker, J.

This record raises the question of the right of grandchildren of a deceased brother to inherit a portion of the estate of the intestate, in a case where brothers and sisters of the intestate survived him. This depends upon the construction of the word “ children ” in the second subdivision of section 5772a, 3 How. Stat., which provides that—

“ If the intestate shall leave no issue, father, or mother, his or her estate shall descend, subject to the provision herein made for the widow or husband, if a widow or husband survive the deceased, in equal shares to his or her brothers and sisters, and the children of deceased brothers and sisters, by right of representation.”

How. Stat. § 2, subd. 1, provides that, in the construction of the statutes,—

“All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.”

The commonly accepted definition of the word “ child” is, “ a son or a daughter; a male or female descendant in the first degree.” Webst. Diet. “ Grandchildren ” are rarely called “children,” the word “descendants” being ordinarily considered more comprehensive than the word “children” or “grandchildren;” and the term “children” cannot be said to have a technical or peculiar meaning in the law, though it has been held to extend to “grandchildren” in some cases. In Bouv. Die. tit. “Child,” it is said: “The term 'children’ does not, ordinarily and properly speaking, comprehend 'grandchildren,’ or issue generally, yet sometimes that meaning is affixed to it in cases of necessity.” In re Curry’s Estate, 39 Cal. 529; Adams v. Law, 17 How. 417. We shall find this statement of Bouvier confirmed in many cases involving wills, although cases are not rare where the term “children” has been held coextensive with “ issue ” or “ descendants.” Such holdings are not put upon the ground that the word “ children ” has a technical or peculiar meaning in the law, but because such meaning is necessary to give effect to the instrument, or because of an evident intent upon the part of a testator. It is in deference to the rule that the intent is to he sought after and given effect in the construction of wills, which may be done to the extent of holding illegitimate children to be included in the term “ children,” though the law ordinarily excludes them. See Bouv. Dic. tit. “Child,” subd. 3; In re Curry’s Estate, supra; 4 Kent, Comm. 345. In Reeves v. Brymer, 4 Ves. 698, cited by counsel, the court said that '"children’ may mean 'grandchildren’ where there can be no other construction, but not otherwise.” Pride v. Fooks, 3 De Gex & J. 252.

In this connection we may profitably consider the statute under discussion. The first subdivision provides that property shall descend to the children of the intestate, and to the issue of any deceased child by right of representation. The same subdivision declares that, if no child of the intestate be living at his death, his estate shall descend to all his other lineal descendants, etc. Here it is noticeable that the word “child” is unquestionably used in the ordinary 'sense. The third subdivision provides that if the intestate shall leave no issue, . husband, widow, father, mother, brother, sister, nor children of brother or sister, his estate shall descend to his next of kin in equal degree, where they claim through ancestors equally near. This subdivision again uses the word “children” in close proximity to the term “ issue,” indicating an understanding of the difference in meaning between them. It also contains ■clear evidence that it was not the intention to apply the right of representation to cases where property descends to collateral heirs, beyond certain limits. It also discriminates between collateral kindred of the same degree, by favoring those having the nearest ancestor. It is manifest that, in the opinion of the lawmakers, the right ■of representation must end somewhere. If not there would be no occasion for providing for a descent to the next of kin in equal degree. We may think that grand nieces and nephews are too near to be excluded; others might think that the right of representation should be much further extended. It was for the Legislature to fix the point where it should end, and we see no way of avoiding the conclusion that this was done intelligently. ’ ■So long as there are lineal descendants, the right of representation .is preserved, but, in dealing with collateral relations, it has been as carefujly restricted. The courts of Massachusetts have taken this view of the statute of that state, which is similar. Bigelow v. Morong, 103 Mass. 287.

We do not feel justified in holding that the word u children,” where used in the statutes, has the same meaning as the word “issue” or “descendants,” and are constrained to affirm the judgment of the circuit court.

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


author: McGrath, C. J.

text:
    George D. Engle v. Levant E. White, Administrator of the Estate of James Engle, Deceased, et al.

      Land contract — Construction—Specific performance — Homestead.

      1. A father owned and occupied a farm consisting of three government subdivisions of 40 acres each. He also owned an adjoining parcel of land containing 69 acres. Having become incapacitated for working his farm, and to induce a married son, who had formerly lived with him, to return to the farm, an agreement in writing was entered into between them which provided that the father was to give the 69 acres to the son; that the latter was to work the farm on shares, help to keep it in good repair, and care for his father and mother; and that, upon the performance of the agreement by the son, he should, at his father’s death, have a deed of the farm. And it is held that it is evident that in consideration of the sons return to the farm, his agreements regarding the same and the care of his parents, it was intended that he should have absolute control over the 69 acres during the life of his father, and at his death should take the legal title to the farm also.

      2. The son moved upon the 69 acres, and for 18 years, during which time his mother died and his father remarried and again became a widower, did all that was required of him under the contract, without complaint upon the part of the father. And in a suit by the son for specific performance of the agreement it is held that an objection upon the ground of the indefiniteness of the obligations assumed by the son is without force, as the parties have, by a long course of dealing and conduct, made certain what otherwise might be deemed uncertain.

      8. The buildings were situated upon one of the 40-acre subdivisions. And it is held that said 40 acres may be treated as the father’s homestead; that as no dower rights are involved, and the remainder of the farm is capable of severance from said homestead, and the contract itself treats the 69 acres as a separate parcel, the contract may be held operative as to all of the land except the homestead, and to that extent is enforoible in equity.
    Appeal from St. Joseph. (Loveridge, J.)
    Argued October 31 and November 1, 1894.
    Decided February 12, 1895.
    Bill for specific performance of a land contract. Both parties appeal.
    Decree modified.
    The facts are stated in the opinion.

      R. R. Pealer and George E. Miller, for complainant.

      H. P. Stewart, Charles A. Sturges, and Boudeman <& Adams, for defendants.

       See note to Krell v. Codman, 14 L. R. A. 860, regarding agreements to pay money or give property after the death of the promisor.

   McGrath, C. J.

James Engle, who died after decree-herein, was in 1873 the owner of adjoining parcels of land; one containing 120 acres, upon which he and his wife lived, and the other containing 69.acres, upon which there was a dwelling and other buildings. He was then 57 years of age, and, having met with an accident which incapacitated him for active work on the farm, to induce complainant, his son, to return to the farm, the following agreement was entered into:

“ Schoolcraft, Kalamazoo Co., October 27, 1873.
“James Engle does hereby agree to give to his son, George D. Engle, the 69 acres fractional, being known as the timber land. He does further agree that he shall work the 120 acres of land on shares where he now lives, and is to help to keep the place in good repair, take care of his father and mother, and administer to their wants the necessaries of life; providing that George D. Engle fulfills on his part, at the end of his death he shall have a deed of the old homestead 120 acres of land.
“ George D. Engle does hereby agree to furnish to J ames Engle, his father, his wood and timber necessary to be used on the 120 acres of land where he now lives. He further agrees to work the place on shares, and help to keep the place in good repair. He further agrees to administer to their wants the necessaries of life when called upon.
“James Engle.
“ George D. Engle.
“Witnessed by
“Ang. Engle.
“Geo. Acres."

Complainant entered into possession of the 69 acres, and has since continued to reside thereon, his father continuing to reside on the 120 acres until his death. In 1892, James Engle undertook to lease the 69 acres to a third party, gave complainant here notice to quit said premises, and filed a bill to restrain the son from cutting timber upon the 69 acres, whereupon the present bill was filed, setting up the contract, possession thereunder for 18 years, and performance of its terms, and asking that the right to possession be protected, and “a specific performance of said contract be decreed, in so far as the same can now be done."

The father denied that he ever signed the contract, and a circumstance throws some doubt upon its execution, but all the other circumstances point unerringly to the existence of a contract such as the one set up. The son and family removed to the farm. They moved into the house upon the 69 acres. In the bill of complaint filed by the father, he says: “ While defendant has been working 120 acres of your orator’s land on shares, he has had the entire control and income from the balance of your orator’s land." The son did just what the contract required him to do. Eor 18 years, and without complaint on the father’s part, the son cropped the 120 acres, kept the place in good repair, furnished the necessary wood and timber from the 69 acres, and attended to the wants of the parents.

The contract is inartificially drawn, but, keeping in view the circumstances under which it was entered into, it is evident that in consideration of complainant’s return to the farm, his further agreement as to the 120 acres and as to his attentions to the father and mother, it was intended that he should have absolute control over the 69 acres during the life of the father, and at his death should take the 120 acres also. The contract does not say when the 69 acres are to be conveyed, but evidently the parties construed it to mean that complainant should take the legal title at the death of the father.

Respecting the indefiniteness of the obligations assumed by the son, it appears that for 18 years, during which time complainant’s mother died, and the father afterwards remarried, and subsequently the second wife died, the relations between the parties remained the most amicable. The son did all that was required of him. The parties have, by a long course of dealing and conduct, made certain what might otherwise be deemed uncertain; and, so far as this record shows, complainant was ready and willing to continue to perform the contract on his part.

At the time of the execution of the contract, the homestead of the father and mother was upon the 120 acres. The court below held the contract valid as to the 69 acres, but that under the rule laid down in Phillips v. Stauch, 20 Mich. 369, and Hall v. Loomis, 63 Id. 709, the contract, as to the homestead, was a nullity, and would not be enforced in equity as to the surplus. The court was right in holding the contract void as to the homestead. That infirmity did not, however, affect the parcels capable of severance. The contract itself treats the 69 acres as a separate parcel, and complainant was put into possession thereof. The 120 acres consist of the S. 1/2 of the S. E. 1/4 and the N. W. 1/4 of the S. E. 1/4. The buildings are upon the N. W. 1/4 of the S. E. 1/4. That 40 may be treated as the homestead, and the contract •declared operative as to the other two 40s and the 69 .acres: In the cases cited the question of dower was also involved. In one case, severance was impossible, and in the other, impracticable. There is no good reason why, under the circumstances here presented, the whole matter may not be disposed of in this proceeding.

The decree will be modified accordingly, with costs to •complainant.

The other Justices concurred.


author: Hooker, J. Grant, J.

text:
    The City of Muskegon v. Herman O. Lange.
    [See 90 Mich. 592; post, 26.]

      Taxes — Bank stock — Liability of cashier.

    1. Section 33 of the tax law of 1889, which provides that, upon demand being made by the treasurer upon the cashier of any bank for the payment of any tax assessed upon the shares of its capital stock, it shall be the duty of the cashier to pay said tax, and charge the same against the shares of stock so assessed, imposes upon the cashier an official, and not a personal, obligation.

    :2. Upon the making of such demand it becomes the duty of the bank to pay the tax demanded, and, if the performance of said duty is to be enforced by an action at law, the suit should be brought against the bank, and not against the cashier.
    :S. Whether or not an action at law against the bank is a proper procedure to collect such tax — gucere.

      Error to Muskegon. (Palmer, J., presiding.)
    Argued November 1, 1894.
    Decided February 12, 1895.

      Assumpsit. Plaintiff brings error.
    Affirmed.
    The facts; are stated in the opinion.

      Brown é Lovelace, for appellant.

      Sessions, Nislcern é Bassett (F. W. Cook, of counsel),, for defendant.

       The same provision is found in the tax laws of 1891 and 1893.

       See Eyke v. Lange, post, 26, holding that an action at law will lie against the bank.

   Hooker, J.

The defendant was cashier of a national bank in the city of Muskegon. Taxes were assessed against, the several stockholders upon the stock of said bank, two-of whom failed to pay. Demand was then made upon the-defendant, who refused payment. The action is based upon section 33 of Act No. 195, Laws of 1889 (3 How. Stat. §• 1170(22), which provides:

“In case of any tax assessed upon the shares of the-capital stock of any bank, he [the treasurer] shall call upon the cashier of such bank, and demand payment thereof; and thereupon it shall be the duty of such cashier to pay the same, and charge the amount so paid against the shares of stock so taxed.”

Application was made to this Court for a mandamus to-compel the defendant to pay these taxes, but it was denied. See Eyke v. Lange, 90 Mich. 592. Subsequently this action was brought.

The validity of a state law making it the duty of a. national bank to pay the taxes assessed against its stockholders is supported by Lionberger v. Rouse, 9 Wall. 468; National Bank v. Com., Id. 353. Our statute does not in express terms do this, but it. is very clear that the money with which it is expected that the cashier will pay the-taxes is that of the bank, as he is authorized to “charge-the amount so paid against the shares of stock so taxed.”' The question here arises whether this is an attempt to-impose a personal or an official duty. If personal, we may reasonably say that he is expected to pay the taxes from his own means, and that he would have a right to recover •them from the stockholders. In such case he could enforce payment only by action, and his chances for collecting irom a non-resident stockholder would be no better than those of the tax collector. Again, the cashier may be unable to pay. On the other hand, a demand upon the cashier may well be treated as a demand upon the bank, and it is no hardship to say that upon such demand it is the ■duty of the bank to pay, — a duty which must be discharged by the bank, in its corporate capacity, through its proper officer, and one which it should not be allowed to avoid because the cashier has not been authorized to handle the funds or keep the books of the bank. We cannot say that the law will presume that the cashier may pay from the bank funds; for the national bank act, to which he must look for his authority, makes him the creature of the board of directors, who may appoint him and define his duties. National Bank Act, § 15. The bank has, what the cashier lacks, an account with the ■stockholder and the shares of stock, and it has property in its possession in which the stockholder has a pecuniary interest. Ordinarily, it is in á situation to reimburse itself from these sources, and in no such danger of loss as •the cashier would be. Who can doubt that the intent of the Legislature was that the payment required was to be made by the cashier from funds of the bank, and that it was to be charged against the shares of stock taxed, upon the books of the bank? If these things are true, why should we say that the obligation is personal, and that it is not official; that the law looks to the cashier, and not to the bank?

It appears, then, that the State may legally charge the bank with this duty. It is said in National Bank v. Com., supra, that this is the common practice in New England. It is the just and natural thing to do, in order to facilitate collection against non-resident stockholders. It would seem to be unnatural and unjust to make this obligation a charge merely upon a cashier, personally. I think, therefore, that the law in question made it the duty of the bank to pay upon demand made upon the cashier. This being so, if this duty is to be enforced by action at. law, it should be by action against the bank, and not by suit against the cashier.

Inasmuch as the bank is not a party to this record, I do not express an opinion as to whether or not an action at law against the bank would be a proper procedure to. collect a tax upon the stock. It is enough for the purpose of this case to say that, in my opinion, an action at. law will not lie against the cashier in the premises, and that the judgment should be affirmed.

My brethren think that a rehearing should be granted in the mandamus case of Eyke v. Lange. Ordered accordingly.

McGrath, C. J., and Long, J., concurred with Hooker, J.

Grant, J.

(dissenting). After the decision of Eyke v. Lange, 90 Mich. 592, the city of Muskegon instituted this, suit to recover against the defendant, who was the cashier of the bank, the amount of the tax assessed against its. stockholders who had not paid. The court directed a verdict for the defendant upon the ground that defendant, the cashier of the bank, was not liable for the taxes assessed against its stockholders.

It is the policy of the tax law to provide expeditions methods for collecting the public revenue. The method of collecting the tax is not always confined to a direct proceeding against the party whose property is assessed. Those in charge of the property taxed are often made the medium for collection. This method should be sustained unless there is some insurmountable legal obstacle in the way. Bank stock is held by both residents and non-residents. It is subject to taxation in the municipality where-the bank is located. Under our tax law, shares in banks; should be assessed to their owners in the town where the-bank is located, provided that shares owned by a person, residing within the county where the bank is located should! be assessed in the town where he resides. Act No. 195,. Laws of 1889, § 11, subd. 3. The law usually provides-for the collection of this tax from the banks, which are then authorized to charge it against the stockholders, and upon whose stock they have a lien. In this State the provision for collection is as follows:

“In case of any tax assessed upon the shares of the-capital stock of any bank, he [the treasurer] shall call upon the cashier of such bank, and demand payment, thereof; and thereupon it shall be the duty of such cashier to pay the same, and charge the amount so paid against, the shares of stock so taxed.”

While this statute in terms imposes this duty upon the-cashier, yet it is done for the bank, and when the entries, are made upon the bank books it becomes a bank transaction. This method of procedure is sustained by Mr. Justice-Cooley in his work on Taxation (2d ed., page 432), in. the following language:

“For the most part, the taxes levied by the states are-collected of the persons taxed, or enforced against the property in respect to which they are imposed. In a few cases, however, in which no injustice could result from such a course, the state may reach the party taxed by indirection, and collect in the first instance from some one else, who in turn will become collector from the person on whom the tax is really imposed. The reason for this is that in such cases it is more convenient to the state, and perhaps makes more certain the collection; and it could be resorted to only when the case is such that injustice could result to no one. A case of the kind is where *a tax is imposed on the dividends or other receipts of shareholders from the profits of corporations, or upon their shares, and the corporation is required to make the payment, which it would then deduct from the payments to be made to shareholders. There is no doubt of the right to do this, except as to payments to be made to non-residents, nor even as to them, if the statute under which their interests were acquired provided for the levying and collection of taxes in that manner.”

The authorities cited by him fully sustain the text, and we need not cite them here. See, also, Cook, Stock, Stockh. & Corp. Law, § 566.

I see no difference in principle between making the bank or the cashier thereof a medium for collection. The same principle is applicable to both. The tax-payer is not injured. He is chargeable with knowledge of the law, and that his stock will be taxed, and of the time when due. He knows the means provided for its collection. If he desires to contest the validity of the tax, he can notify the cashier, and be allowed to come in and defend any suit that may be instituted against him. Referring to the record in Eyke v. Lange, I find it stated there that the stockholders had notified Mr. Lange to contest the tax. Under that decision, and under the contention of the defendant in this suit, the above provision of the statute, would be nugatory, and the collector would be compelled either to seize the stock under his warrant or to bring suit against the individual stockholders. The latter would be impracticable and expensive, and is the very thing which the statute sought to avoid. The express duty is imposed upon the cashier to pay. In doing this he represents the stockholders. He has in his possession the means of payment. Whatever judgment is rendered against him is binding upon the stockholders. He can pay the judgment out of the funds in the bank which belong to them, and which are under his control. If there are no accrued dividends out of which to pay, the bank, through him, has a lien upon the stock which it can enforce to reimburse itself. The tax law of 1853 provided that, if any person refused or neglected to pay the tax imposed, the treasurer should levy the same by distress and sale of his goods and chattels, or of any goods and chattels in his possession; and no claim of property by any other person should be available to prevent the sale. It further provided that, if the property so seized should be owned by any other person, such owner might recover, of the person for whose tax the same was sold, the value of such property in an action of assumpsit as for goods sold and delivered. This law was sustained by this Court. Sears v. Cottrell, 5 Mich. 251. It certainly follows from the principle of that case that the Legislature may direct that the person having charge, possession, and control of the property assessed, shall pay the tax, and collect the amount by suit or otherwise from the person against whom it is assessed. It follows, also, that the legal duty to pay carries with it the right to bring suit. I am of the opinion that the ruling of the learned circuit judge was wrong.

The judgment should be reversed, and, inasmuch as no fatal defect is shown in the tax proceedings, judgment should be entered in this Court for the amount of the tax, with the costs of both courts.

I am convinced, after mature deliberation and a more extended examination of the authorities, that there is doubt as to the correctness of the decision of Eyke v. Lange. The writ of mandamus will lie in some cases where there is a remedy at law. In many cases a speedy determination of legal questions is of great importance. This is especially true in the collection of the public revenue. The following authorities sustain the proceedings by mandamus: Barney v. State, 42 Md. 480; McVeagh v. City of Chicago, 49 Ill. 318; Town of St. Albans v. National Car Co., 57 Vt. 68. An able discussion will be found in this last case upon pages 84 and 85.

I concur with my brethren in holding that a rehearing should be ordered in the case of Eyke v. Lange, since they have held that the present suit cannot be maintained.

Montgomery, J., did not sit.