text:
    EIKHOFF v. WAYNE CIRCUIT JUDGE.
    1. New Trial — Depositions—Practice.
    Under 3 Comp. Laws, § 10136, authorizing the taking of testimony by deposition de bene esse “ in all cases where affidavits are permitted to be used in proceedings before the court, ” testimony may be so taken for use on the hearing of a motion for a new trial.

      2. Same.
    The statute, however, does not change the practice in relation to such motions, as prescribed by Circuit Court Rule 81, under which the motion must be made -promptly, and must set up the reasons on which it is founded.
    3. Same.
    Where the time allowed is insufficient to permit advantage to-be taken of the statute, a proper practice would be to make and serve the motion papers seasonably, showing the necessity for, and asking, an extension of time for the purpose.of taking the desired testimony.
    A Same — Newly-Discovered Evidence.
    A motion for new trial on the ground of newly-discovered evidence should disclose the nature and materiality of the evidence relied on.

      5. Same.
    Hence, a motion stating merely that it is made because of “newly-discovered evidence,” and is based on “testimony to be taken,” is insufficient to authorize the taking of testimony under the statute in support of the motion.

      Mandamus by Henry J. Eikhoff to compel Flavius L. Brooke, circuit judge of Wayne county, to enter an order requiring certain persons to' testify before a notary in support of relator’s motion for a new trial.
    Submitted November 19, 1901.
    Writ denied December 21, 1901.

      Edward S. Grece, for relator

      Wells, Angelí, Boynton & McMillan, for respondent.
   Hooker, J.

A motion for a new trial was made on behalf of relator in a cause pending in the Wayne circuit court.against Edward T. Gilbert et al. Subsequently he served notice upon defendants’ attorneys that he proposed to take the testimony by deposition of Gilbert and several other witnesses, before a notary, for use upon the hearing of said motion. The witnesses appeared at the time and place set, but, under the advice of counsel, refused to testify. An application was thereupon made to the trial court for an order that should compel the witnesses to testify. This was denied. Counsel relied upon section 10136, 3 Comp. Laws, as authority for his practice, while the defendants’ counsel urged that it should be held not to apply to such motions.

The right to take testimony for use upon such a motion is within the words of the statute, viz., “and in all cases where affidavits are permitted to be used in proceedings before the courtand we think testimony to be used on such a motion fairly within the title of the act. We are of the opinion, however, that this statute does not change the practice in motions for new trial. Circuit Court Rule 21 requires the motion to be made promptly, and, while it recognizes the authority of the circuit judge to enlarge the time prescribed, — i. e., five days, — a meritorious showing may always be required by opposing counsel. If the motion is based upon newly-discovered evidence, its nature and materiality should appear in the motion, and the evidence in support of the motion should be served on counsel. It is apparent that this statute would be ineffective in a case where a motion is heard within five days after verdict, because evidence thus taken could not be served with the motion papers, if it could be procured in time for the hearing. A proper practice would be to make and serve the motion papers seasonably, showing the necessity for, and asking, an enlargement of time to take testimony tending to prove the allegations of newly-discovered evidence alleged in the motion, which could be refused or granted upon such conditions as justice should require, the whole being a discretionary matter. We have not a copy of the motion before us, and have no means of determining whether it apprised counsel of the character of the testimony expected or not. While the brief indicates that one ground of the motion was newly-discovered evidence, and that it stated that it was based on the ‘ ‘ testimony in the case, and testimony to be taken,” such statements fall short of the requirement of the rule requiring a statement of the ground of the motion. Doubtless considerable laxity in the formulation of motions for new trials prevails, due probably to the fact that the affidavits, which must be served with a copy of the motion, convey the requisite information; but when the testimony relied upon is not in the form of affidavits, but is to be taken under the statute, the necessity for setting up in the motion the nature of the expected testimony, and in the accompanying affidavit some evidence that it is attainable, is manifest. This does not appear to have been done; and, moreover, the brief of counsel states — and we do not discover that the statement is denied — -that, while the motion stated that it was based on testimony taken and to be taken, the latter portion was omitted from the copy served. The time for hearing the motion was extended by consent, but there is nothing justifying us in saying that it was for the purpose of taking testimony, which counsel seem to have consistently opposed at all times.

We are of the opinion that the application was properly denied by the learned circuit judge who heard it, and his order is affirmed, with costs.

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


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    STARK v. STARK.
    Divorce — Cruelty—Evidence.
    Where, in a suit by a wife for a divorce, it was shown that defendant compelled her to perform manual labor on the farm, that, on one occasion, he struck her in the face, and that he charged her with having a venereal disease, complainant was entitled to a decree.
    Appeal from Calhoun; Smith, J.
    Submitted December 10, 1901.
    Decided December 21, 1901.
    Bill by Emma Stark against Fred Stark for a divorce. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Hatch & Page ( Charles A. Blair, of counsel), for complainant.

      William H. Porter (James M. Powers, of counsel), for defendant. '
   Grant, J.

Complainant and defendant were married March 23, 1899, and she left him on May 26, 1900, and filed a bill of divorce on the ground of cruelty. The acts of cruelty charged are: (1) That she was compelled by defendant to do manual work upon the farm, such as spreading manure, planting corn, etc.; (2) that he was guilty of personal violence upon her; (3) that he used abusive, profane, and threatening language; (4) that he charged that she was afflicted with a venereal disease, and that she communicated it to him. Proofs were taken in open court, and the bill dismissed.

The learned circuit judge assigned no reasons for dismissing complainant’s bill. We cannot concur with him in the conclusions reached. We think the charges were fully sustained by the evidence. It was admitted that she did the manual work, not only upon his farm, but upon that of his brother; the only dispute being that he testified she did it voluntarily, and she that he compelled her to do it. That he struck her in the face is admitted, and that he charged her with having a venereal disease is clearly established. It is unnecessary to enter into the details.

The decree is reversed, and decree entered for the complainant. It is further adjudged that defendant pay her $500 as alimony, and $100 as solicitor’s fee, with the costs of both courts additional.

The other Justices concurred.


text:
    JAHRMATTER v. KLINE.
    Injury to Infant Employé — Liability of Master — instructions to Jury.
    Where, in an aotion by an infant against his employer for personal injuries, the declaration alleged that plaintiff was possessed of ordinary intelligence, and no claim to the contrary was made on the trial, it was not error for the court to accept it as the fact in his instructions to the jury as to the measure of defendant’s duty.
    Error to Alpena; Emerick, J.
    Submitted December 10, 1901.
    Decided December 21, 1901.

      Case by Max Jahrmatter, by next friend, against Lewis T. Kline, for personal injuries. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      B. J. Kelley, for appellant.

      I. 8. Canfield, for appellee.
   Grant, J.

Defendant owns and operates a foundry, machine shop, and woodworking shop, in which he uses lathes, planers, circular saws, etc. Plaintiff, a lad a little under 17 years of age, applied to defendant for employment. He was placed at work to take away the square pieces and the edgings as they came from a circular saw. He had been at work about three hours when an employe named Duncan, who was operating the saw, went into an adjoining room. Plaintiff, after carrying away the edgings, attempted to oil the machinery; and, in reaching over the saw, his arm came in contact with it and was cut off. The sole ground of negligence urged is the failure to properly instruct him in the dangers incident to the work. The declaration alleged that he was a youth of ordinary intelligence. He denied having been given any instructions. In this he is contradicted by the defendant, and by the witness Duncan. The latter testified to giving him specific instructions, and cautioning him against the dangers. The case was submitted to the jury in a very full and specific charge as to the duty of the defendant to give plaintiff instructions and warning of danger. The court said to the jury that general instructions were not sufficient, but that specific instructions should have been given, sufficient to inform a youth of his age and experience, and possessed of ordinary intelligence, of the dangers incident to the work. The jury rendered a verdict for the defendant.

Error is assigned upon the rulings of the court in admitting and rejecting testimony, and also upon the charge. The precise complaint made of the charge is that it-fixed too high a standard of intelligence and prudence required of the plaintiff. The court recognized the standard by which the conduct of this plaintiff was measured to be the same as that set up in the declaration, viz., that of ordinary intelligence. There was no claim that plaintiff was not possessed of ordinary intelligence. The instruction was, therefore, correct.

We find no error upon the record, and the judgment is affirmed.

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


author: Moore, J.

text:
    UNION TRUST CO. v. CONUS.
    1. Guardian and Ward — Bonds—Consideration—Forbearance.
    C., having converted certain funds in his hands as guardian, was removed, and ordered to pay the amount “forthwith” to B., his successor. Subsequently, as the result of efforts to collect the claim, C. gave to B., as trustee for the wards, “his successors, executors, administrators, or assigns,” a bond conditioned for the payment of the amount due, in installments extending over a term of years; after which no attempt was made to enforce payment otherwise than in accordance with the bond. Held, to warrant the inference of an extension of time for payment, affording a sufficient consideration for the bond.
    2. Same — Default—Amount Recoverable.
    By the terms of the bond, the whole amount might be declared due in case of a default in payment for 60 days. B. died before any payments became due, and an administrator was appointed for his estate, and a new guardian (U.) for the wards; and to U., C. made several of the payments specified in the bond. U. was subsequently appointed trustee under the bond, and, more than 60 days after nonpayment of an installment, but within a less time after his appointment as trustee, he brought suit on the bond. Held, that a recovery was properly permitted for the full amount of the bond, since, in view of the appointment. of the administrator, and of U. as guardian, the contention that no default could exist prior to U.’s appointment as trustee, for want of a person to whom payments might lawfully be made, was untenable.
    Error to Wayne; Frazer, J.
    Submitted December 11, 1901.
    Decided December 21, 1901.

      Assumpsit by the Union Trust Company, trustee, against Anthony M. Conus, principal, and John Siwka and John Zynda, sureties, upon a bond for the payment of money. From a judgment for plaintiff on verdict directed by the court, defendant sureties bring error.
    Affirmed.

      Malcolm McGregor and William D. Fox, for appellant Zynda.

      Clark, Durfee & Allor, for plaintiff.
   Moore, J.

The appellants bring the case here by writ of error. The plaintiff sued and obtained a judgment upon a bond reading as follows:

“Know all men by these presents, that Anthony M. Conus, of the city of Detroit, county of Wayne, and State of Michigan, as principal, and John Siwka and John Zynda, of the city of Detroit, county of Wayne, and State of Michigan, as sureties, are held and firmly bound unto John Bialk, Sr., of the city of Detroit, county of Wayne, and State of Michigan, as trustee for John Bialk, Jr., Bose Bialk, and Elizabeth Bialk, children of Christina Bialk, deceased, in the sum of two thousand dollars ($2,000), good and lawful money of the United States, to be paid to the said John Bialk, Sr., trustee, his successors, executors, administrators, or assigns, for which payment well and truly to be made we do bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents.
“ Sealed this 29th day of June in the year one thousand eight hundred and ninety-eight.
“The condition of the obligation is such that if the above-bounden Anthony M. Conus, his heirs, executors, and administrators, or any of them, shall well and truly pay, or cause to be paid, unto the above-named John Bialk, Sr., trustee, his successors, executors, administrators, or assigns, the just and full principal sum of one thousand six hundred and eighty-three and 48-100 dollars ($1,683.48), with interest thereon at the rate of six per cent, per annum, payable semi-annually, at the times and in the manner following, to wit: One hundred and eighty-three and 48-100 dollars ($183.48) on or before the 5th day of November, A. D. 1898, together with such interest as may be due upon the aforesaid principal sum, and the remainder of said principal sum in twelve (12) equal semi-annual payments, of one hundred and twenty-five dollars ($125) each, on the fifth day of each succeeding month of May and November following, until the full payment of the said principal sum; the accumulated interest upon such part of the principal sum as may be due at the time of making any of said payments to be paid semi-annually and at the time of making the payments on the said principal sum as aforesaid, — without fraud or other delay, then this obligation to be void.
“And it is hereby expressly agreed that should default be made in the payment of said principal sum, the interest, or any part thereof, when the same is payable as above provided, and should the same, or any part thereof, remain unpaid for a period of sixty days, then the whole of the aforesaid principal sum, with all arrearages of interest, shall, at the option of said John Bialk, Sr., his successors, legal representatives, and assigns, be due and payable immediately thereafter, notwithstanding the time as above limited for the payment of said principal sum and interest shall not have then expired.
“But, if default be made in the payment of any or either of the said sums on the days on which the same ought to be paid as aforesaid, then this obligation shall remain in full force and virtue.
[Signed] “Anthony M. Conus. [L. S.]
“John Siwka. [L. S.]
‘ ‘ John Zynda. [L. S.'
“ I hereby accept the within trust.
“Detroit, July 20th, A. D. 1898.
[Signed] “John Bialk.”

This bond was acknowledged by the parties thereto before a notary public.

There are twenty-three assignments of error. We have considered them all, but shall discuss only those which we deem to be important.

To understand the questions involved, a brief statement of facts is necessary: In March, 1892, the defendant Conus was appointed general guardian of three minors (John Bialk, Jr., Rose Bialk, and Elizabeth Bialk) by the probate court. He filed the usual guardian’s bond, with two sureties. Later he filed an additional bond. The defendant Zynda was not on either bond. The defendant Conus converted funds belonging to said minors to his own use. He was removed as guardian on the 21st day of September, 1897. John Bialk, Sr., was appointed on the 30th day of September, 1897, guardian of said minors. On the 1st of November, 1897, the probate judge found Mr. Conus indebted to the minors in the sum of $2,242.20; and he was ordered to pay this sum “over forthwith” to his successor, John Bialk, Sr. Conus subsequently made payments on this indebtedness, and, at the time of giving the bond on which this suit is brought, was indebted to the estate in the sum of $1,683.48. The defendant Siwka was a surety on both the probate bonds. As Mr. Conus did not pay the balance, Mr. Bialk put the claim in the hands of an attorney for collection. The attorney satisfied himself that the only person on the probate bonds who was good was Mr. Siwka. He had a conference with Mr. Conus and Mr. Siwka, and he also called the attention of the prosecuting attorney to the situation. A letter was written from the office of the prosecuting attorney, the contents of which do not appear. The record is not as full as could be desired as to what occurred between counsel and the parties to the bond, but the result of the conference of the attorney with Mr. Conus and Mr. Siwka was that the bond in controversy was given, and no further effort was made to collect the claim through the probate court. October 24, 1898, Mr. John Bialk, Sr., died. On the 16th of December an administrator of his estate was appointed, and in December, 1898, the Union Trust Company was appointed guardian of the minors. After the appointment of the Union Trust Company as guardian, defendant Conus made payments on the bond to the Union Trust Company as guardian, — seven in all. When it became evident that suit must be commenced to collect the bond, the question arose as to who had the right to sue, — whether the Union Trust Company, as guardian, Basil A. Lemke, as administrator, or a new trustee. In order that there might be no question about it, a bill was filed making all the parties in interest defendants, and a decree was made appointing the Union Trust Company trustee. As Mr. Conus made default in his payments, this suit was commenced in January, 1900, and judgment was rendered for the full amount due in November of'the same year.

It is claimed the bond was impeached because it was given solely to secure a past indebtedness, and to keep Mr. Conus out of prison. There is nothing in the evidence that warrants the inference that the bond was given to prevent the imprisonment of Mr. Conus; and, while the bond was given to secure an indebtedness then due, we think it a fair inference from all the facts and circumstances that it was given to enable Mr. Conus to have such additional time in which to pay this indebtedness as would enable him to do so. This court has held that extending the time in which to pay an existing indebtedness is a sufficient consideration for the giving of a bond. Calkins v. Chandler, 36 Mich. 320 (24 Am. Rep. 593); Lee v. Wisner, 38 Mich. 82. See, also, Sanders v. Barlow, 21 Fed. 841; 14 Am. & Eng. Enc. Law (2d Ed.), 1136.

The case of Webbe v. Stone Co., 58 Ill. App. 222, is an instructive one. In the opinion it is said:

“As already stated, the written guaranty itself expresses no agreement for forbearance by appellee. That instrument bears date October 3, 1891, and the appellant promised to pay one-half of the sum guaranteed by the end of that month, and the balance within 90 days from the date of the guaranty, which would expire on January 1, 1892. Of the amount of $3,300 specified in the memorandum of settlement between Samuel E. Webbe and the appellee, referred to in the written guaranty, there was paid on October 31st $1,491, — a sum $159 less than one-half of the amount specified; and on January 5, 1892, four days later than the time mentioned in appellant’s'contract of guaranty, there was paid $1,500, — a sum likewise less than was then due. These payments, it is conceded by appellant’s brief, were paid by the principal debtor, Samuel E. Webbe, and this suit against the guarantor was not begun until January 19, 1893.
“ These facts establish, prima facie at least, that there was in fact a forbearance by the appellee to sue the principal debtor; and actual forbearance, taken in connection with the fact of acceptance of the guaranty by the appellee, and of subsequent payments by the principal debtor from time to time not earlier than the times specified in the guaranty, and nothing whatever being shown to the contrary, nor offered by the appellant to be shown, the inference or presumption arises that it was agreed by the parties that there should be a forbearance for the time mentioned in the written guaranty. An agreement to forbear to sue, or to extend the time of payment, need not be in writing, nor in any precise words, nor in express language at all. As said in Brooks v. Wright, 13 Allen, 72:
“ ‘It is a question, of mutual understanding and'intention, and, like other contracts, the agreement of the parties may be derived from and inferred by acts, declarations, facts, and circumstances. "When such are the sources from which the mutual agreement of the parties is to be gathered, it is for the jury to determine what the intention and understanding were, if any, upon which the minds of the parties met.’
“It was held in Walker v. Sherman, 11 Metc. (Mass.) 170, that the slightest damage to the plaintiff, or benefit to the defendant, offered a sufficient consideration to support the promise of the defendant to pay an order accepted by him, and that the fact of forbearance to sue the drawers of the order there involved was sufficient to authorize the inference that the plaintiff agreed so to forbear; and the case of Breed v. Hillhouse, 7 Conn. 523, was cited in support of the decision.
“In the Connecticut case, which was a suit against the guarantor of a note, it appears from the statement of facts as follows:
“ ‘To show that the plaintiff agreed, in consideration of the guaranty, to forbear the collection of the note, the plaintiff relied on his acceptance of the guaranty, and on his actual forbearance for the stipulated time, these facts not being disputed.’
On the trial below the court instructed the jury that proof of consideration was necessary, but that the plaintiff’s receiving the guaranty, and his actual forbearance consequent thereon for the stipulated time, was prima facie, and, being unrepelled, sufficient, proof of consideration. And it was said:
“ ‘The agreement in question, to forbear, was clearly proved, on a principle of probable presumption, which harmonizes with common sense, and is conformed to experience; and both reason and experience bear concurrent testimony to the inference of a consideration in this case. The acceptance of the indorsed guaranty by the plaintiff, and his consequent forbearance, prove the 'agreement in-question, and are incompatible with any other supposition.’
“Recognizing the weight of those cases, we hold that the contract of guaranty by appellant was supported by a consideration, and bound the appellant.”

We think the proofs disclose a sufficient consideration for the giving of this bond.

It is said by counsel the court erred in directing a verdict for the full amount of the bon,d; that as the trust company was not appointed trustee until January, 1900, there was no person to whom payments could be legally made, and therefore there could be no legal default. The bond recites that Mr. Bialk, Sr., is trustee for John Bialk, Jr., Rose Bialk, and Elizabeth Bialk, children of Christina Bialk, deceased. The bond runs to John Bialk, Sr., trustee, his successors, executors, administrators, or assigns. A few days after his death an administrator of his estate was appointed, and the Union Trust Company was appointed guardian of the minor children; and, as before shown, payments were in fact made to the Union Trust Company. There was some one to whom payments could be legally made. They were not made, and the default condition of the bond became operative.

Judgment is affirmed.

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


text:
    STEWART v. BOWERMAN.
    Replevin — Appeal—Conclusive Finding.
    Where, in replevin for a horse alleged to have been mortgaged to plaintiff and sold by the mortgagor to defendant, the jury found'specially that the horse was not the one covered by the mortgage, and no error was assigned to matters entering into such finding, errors relating to the evidence and instructions on the subject of bona fide purchase are immaterial, and will not be reviewed.
    Error to Grand Traverse; Mayne, J.
    Submitted December 11, 1901.
    Decided December 21, 1901.
    Replevin by Rachael Stewart, executrix of the last will and testament of Neil Stewart, deceased, against Moses Bowerman. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Thompson & Temple, for appellant.

      Patchin & Orotser, for appellee.
   Grant, J.

One Stewart, of whose will plaintiff is executrix, sold and delivered to Bentley & Sherburne on the 12th day of January, 1898, a team of horses, and, to secure the balance of the purchase price, took from B. & S. a chattel mortgage upon them. This mortgage was duly filed with the township clerk of the township where B. & S. resided. Shortly thereafter B. & S. sold them to the defendant. The horsps were described in the mortgage as a brown team, while the horse in dispute was a bay. Subsequently plaintiff found what she claimed to be one of the team in possession of the defendant, demanded possession, was refused, and instituted this action of replevin to recover possession. The main defense was that the horse replevied was not the one described in the mortgage, but had been owned by, and was in the possession of, B. & S. prior to the sale and delivery of the Stewart team to them. Verdict and judgment went for the defendant.

In reply to a special question, which appears to have been submitted without objection, the jury found that the horse in dispute was in the possession of B. & S. prior to the sale and delivery of the team to them by Stewart. The question was one of identification, on which there was a conflict of evidence. The jury have settled it in favor of the defendant. No error is assigned upon this branch of the case. The errors assigned relate to the admission of testimony and the instructions of the court in regard to the purchase by defendant without any notice of the chattel mortgage, and upon the representations of B. & S. that the horses were free from any mortgage. The finding by the jury that the horse was not the one described in the mortgage renders a discussion of the questions raised immaterial.

Judgment is therefore affirmed.

The other Justices concurred.


author: Montgomeky, C. J.

text:
    MILKS v. MILKS.
    1. Contracts — Agreement for Support — Breach—Defenses.
    Where a husband and wife agreed to support his mother during her life, and after the husband’s death the wife broke up housekeeping and went to live with a sister, so that she was no longer in position to furnish the mother with a home, her failure to carry out the contract cannot be excused on the claim that the mother would not continue to live on the premises.
    2. Same — Execution—Representations as to Binding Force.
    Where an agreement by a husband and wife to support his mother during her life, for which a lien was given on their homestead, was read to the wife, and its purport was clear, and could not have been misapprehended, the fact that the husband assured the wife that the instrument would be of no binding force is no defense to a suit against her to enforce the lien.
    •3. Same — Mental Competency.
    The fact that a person is ill, and his mind at times more or less clouded, does not render him incompetent to execute an agreement, if at the particular time he is capable of fully comprehending its terms.
    Appeal from Mecosta; Palmer, J.
    Submitted December 11, 1901.
    Decided December 21, 1901.
    Bill by Barthina Milks against Hannah Milks and Henry Ewing, administrator of the estate of George Milks, deceased, to enforce a lien for support. Prom a decree dismissing the bill, complainant appeals.
    Reversed.

      Frank Dumon, for complainant.

      M. Brown, for defendants.
   Montgomeky, C. J.

George Milks was, by occupation, a farmer, and was married to the defendant Hannah Milks in 1894. Previous to the marriage of George Milks, complainant had lived with him as his housekeeper for a period of 15 years or more, and had done the woman’s work on his farm. Complainant was visiting relatives in the State of New York at the time of the marriage, and, some months afterwards, returned, at the request of George Milks, and continued to reside in his family. The defendant Hannah Milks being ill a portion of the time, the burden of the household cares fell upon complainant, in large part. In the month of October, 1895, George Milks gave complainant his note for $600, the consideration being the services which she had rendered for him prior to his marriage. In the month of January, 1896, a new agreement was made between the parties. The note appears to have been surrendered and canceled, and an agreement signed by George Milks and his wife, witnessed and acknowledged, containing the following provisions:

“For and in consideration of past, present, and future services, and, as well, duty, and by mutual agreement and understanding, said first parties do hereby agree to and with said second party to maintain, care for, and support said second party during her lifetime; to do so in a good, substantial, proper, and, in every particular, suitable manner, for people who are surrounded in similar circumstances; to furnish said second party with a reasonable amount of expense money, surroundings to be considered; to make home pleasant and agreeable for second party; and to be kind and considerate to and with second party at all times, second party being mother to George Milks. This agreement being given to protect second party in and during her old age, for care, support, and maintenance, both in sickness and in health; said support and maintenance to be complete, ample, and sufficient at all times to be considered reasonable and proper. And it is hereby further agreed that said second party is hereby given a lien on the southwest one-quarter of the southeast one-quarter of section thirty-two, in town thirteen north, of range nine west, in Mecosta county, State of Michigan, for the full, complete, and faithful performance of the above agreement; same to be considered and treated in the nature of a.collateral mortgage, and is so intended.”

Complainant continued to live in the family of George Milks until his death, which occurred in June,-1899. Since his death, she has received no support from his estate, nor from defendant Hannah Milks, and this bill is filed to enforce the lien provided for in the written agreement. The circuit judge dismissed-the bill, and complainant appeals.

The record does not disclose the ground upon which the circuit judge decided the case, but the substantial grounds urged- here in support of the decree are that the agreement covered the homestead of the parties; that the defendant Hannah Milks, at the time of its execution, was incompetent, and was induced to sign the agreement upon a statement by her husband that it would be of no binding force; and that the complainant refused to live upon the premises after the decease of her son, and, therefore, that there has been no breach of the agreement. As to the last claim, it appears that Hannah Milks broke up housekeeping upon the death of her husband, and went to live with a married sister, and has never been in a position since to furnish a home for complainant. It is true she testified that she requested the complainant to remain with her at the house, but it is evident that this was intended ofily to be temporary, as she testifies that she thought she could stay there until the crops were taken care of. The defense that the defendant Hannah Milks was assured by her husband that the instrument would be of no binding force cannot prevail, as it appears that the instrument was read to her, and its purport is clear, and could not have been misapprehended, if Hannah Milks was at the time competent to transact business. The principal question in the case is as to her competency. A careful reading of the testimony satisfies us that she was not incompetent at the time this instrument was executed. It is true that Dr. Darr, who attended her in February, 1895, and saw her again in March, states that she was suffering from a little mental trouble, and diagnosed it as a little temporary trouble which he thought she would soon get over. This was nearly a year before the instrument was executed. Other witnesses were called by defendants to show the incompetence of Hannah Milks, and gave testimony in terms stronger than that of the doctor. On the other hand, witnesses on behalf of complainant testified that Hannah Milks appeared to be sane, although she was ill. It is undoubtedly true that, at times, her mind might have been more or less clouded. But the most convincing testimony in the case is that given by defendant Hannah Milks herself, from a careful reading of which we are satisfied that, at the time it was signed by her, she understood what the purpose of the instrument was, and fully comprehended it, and that she signed it understanding the obligations which it created. The circumstances surrounding the transaction show it to have been an eminently fair agreement.

We think the complainant is entitled to a decree foreclosing the lien for the present worth of an annuity for her expectancy of life. The annuity, based upon the testimony, will be fixed at $125 per year, and the present worth, including the period which has elapsed since the decease of George Milks, is $1,286.25, for which amount decree will be entered, with costs of both courts.

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


author: Montgomery, C. J.

text:
    MERCHANT v. GUILDS.

    Deeds — Delivery—Evidence—Review.
    Evidence reviewed, and held to establish, the invalidity of a deed for want of delivery by the grantor in her lifetime, notwithstanding her act in recording a life lease given back to her by the grantee.
    Appeal from St. Clair; Thomas, J.
    Submitted December 12, 1901.
    Decided December 21, 1901.
    * Bill by Sarah Ann Merchant against Julius Guilds and Martha Guilds to set aside a deed. From a decree for complainant, defendants appeal.
    Affirmed.

      Avery Bros. & Walsh, for complainant.

      A. E. Chadwick, for defendants.

       Rehearing denied April 22, 1902.

   Montgomery, C. J.

The complainant is a daughter of Abigail Guilds. The defendant Julius is her brother, and this controversy involves the question of whether a certain deed, which was duly signed and acknowledged by Abigail Guilds in her lifetime, ever became operative by delivery. The question is one of fact.

It appears that in October, 1897, Abigail Guilds and the two defendants called upon Nelson Smith, a notary public living in the neighborhood, and a deed of 40 acres of land belonging to Abigail Guilds was prepared, signed, witnessed, and acknowledged. At the same time the defendants prepared, signed, and acknowledged a life lease of the same premises, running to Abigail Guilds. There were present at this transaction three witnesses, — Nelson Smith, Matilda Smith, and Charles Ewing. Matilda Smith’s recollection of the transaction is so obscure as to make her testimony of no value in determining whether the deed was delivered. Nelson Smith’s testimony tends to show that the deed was not delivered, but retained by Mrs. Guilds. Charles Ewing gives a somewhat different version, which is to the effect that Mrs. Guilds, after the deed and lease were delivered, requested the defendant Julius toletherhave the deed, and stated that they would put both the deed and the lease on record together. There is testimony which corroborates the testimony of Mr. Smith. The only other evidence tending to show delivery of the deed was the fact that the life lease was placed of record by the deceased in her lifetime. There is enough in the record to indicate that, having ascertained that the deed was of record, Mrs. Guilds became concerned about her rights, and placed this lease of record, thinking it might afford her some protection. We do not think it conclusively shows an intention to part with the title, and upon the whole record we are convinced that Mrs. Guilds never intended to part with her control over this deed. The circuit judge, who saw the witnesses, reached this conclusion, and a careful reading of the testimony has satisfied us that it is the correct conclusion upon the testimony.

The decree will be affirmed.

The other Justices concurred.


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    RYAN v. MILLS.
    1. Landlord and Tenant — Holding Over — Verbal Lease— Notice to Quit.
    Where, after the expiration of a lease for a term of years, a verbal agreement was entered into, in settlement of a dispute between the parties, whereby the tenant was to hold for two years longer, the landlord was entitled to restitution at the end of that period, without giving a year’s notice to quit.
    2. Pleading — Abatement—Motion to Quash.
    The defense of a former suit pending must be raised by a verified plea in abatement, and cannot be raised by a motion to quash the proceedings.
    Error to Wayne; Carpenter, J.
    Submitted December 12, 1901.
    Decided December 21, 1901.
    Summary proceedings by William T. Ryan against Carlton H. Mills to recover tbe possession of leased premises. From a judgment for complainant on verdict directed by the court, defendant brings error.
    Affirmed.
    Complainant instituted proceedings before a circuit court commissioner to recover possession of certain premises which the defendant had for some years occupied as a tenant under him. In 1887 complainant executed to one Gordon a lease for eight years and nine months. Shortly afterwards Gordon, by the consent of complainant, assigned the lease to Mills. The lease would terminate on the 1st day of April, 1897. After the time fixed therein had expired, he took steps against defendant to obtain possession. He was defeated in that litigation, but for what reason does not appear. Subsequently, and early in 1898, a parol agreement was entered into, by which defendant was to remain in possession for two years longer, the term to end April 30, 1900. Upon March 30th complainant served upon defendant notice to quit on or before April 30th thereafter. The court directed a verdict for the complainant.
    - Galloway <& Graham, for appellant.

      James H. Pound, for appellee.
   Grant, J.

(after stating the facts). 1. Defendant’s counsel urged that defendant, by entering upon another term, had obtained the right of occupancy for a year, and was entitled to one year’s notice before complainant could legally proceed to terminate the tenancy. The court held that the case was controlled by Teft v. Hinchman, 76 Mich. 672 (43 N. W. 680), and in this it was correct.

2. Upon the hearing before the commissioner, defendant moved to quash the proceedings for the reason that a chancery suit was pending between the parties, involving the same cause of action, and in which an injunction was asked for by the defendant here and complainant in the chancery suit against the complainant here, who was the defendant there. At the trial in the circuit court defend-. ant renewed the motion. The court correctly held that the defense of a. former, suit pending could not be raised in this way, but only by a plea in abatement, which must be verified.

Judgment is affirmed.

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


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    PEOPLE, for Use of ROBERTS, v. LAPPIN.
    Principal and Agent — Partnership—Authority op Husband —Evidence.
    Plaintiffs — a partnership composed of R. and T., a married woman — and defendant were each engaged in the paving business. Defendant, R., and T.’s husband, who was formerly engaged in the same business, and who had represented himself to defendant as a member of plaintiff firm, leased a stone quarry for the purpose of securing paving stone, and, by an arrangement between them, R. and the husband were to have the first stone from the quarry in consideration of their furnishing certain paving blocks to defendant. The arrangement was carried out, the blocks furnished being the property of plaintiffs, and the stone taken being used in their business. T. had given her husband a power of attorney to sign her name to all papers necessary for the conduct of plaintiffs’ business, and he testified that he acted for her in all matters connected therewith. Held, that the authority of T.’s husband was such that she was bound by the agreement between him, R., and defendant, and hence plaintiffs could not recover for-the blocks so furnished.
    Error to Wayne; Hosmer, J.
    Submitted December 13, 1901.
    Decided December 21, 1901.

      Assumpsit by the People of the State of Michigan, for the use and benefit of Ephraim K. Roberts and Blanche D. Talbot, copartners as E. K. Roberts & Co., against William Lappin and the Fidelity & Deposit Company of Maryland, upon a contractor’s bond. From a judgment for defendants, plaintiffs bring error.
    Affirmed.
    Defendant Lappin had a paving contract with the city of Detroit. The contract was entered into July 3, 1900. Mrs. Talbot became a partner with Roberts in J une previous. Under the law Lappin gave a bond, signed by the defendant corporation, for the faithful performance of said contract, and the payment of indebtedness due for labor and materials. Plaintiffs furnished defendant cedar blocks, and instituted this suit upon the bond to recover the purchase price thereof. The purchase of the blocks, the price, and the amount due are not in dispute. The defense is payment by an arrangement hereinafter set forth.
    Mr. Harry Talbot, husband of the plaintiff Blanche, had for several years been engaged in the paving business in Detroit, both as principal and manager for others, including the Talbot Paving Company. Roberts had been in the employ of the Talbot Paving Company. Roberts & Co. were also paving contractors, and purchased cedar blocks, as well as crushed stone, for use in paving. Both Roberts & Co. and Lappin used crushed stone. There was some difficulty in obtaining this material, and, in order to obtain it, Roberts, Talbot, and Lappin entered into a copartnership, and leased of one Patrick a stone quarry, in order to obtain the material for their work. There were no written articles of partnership either between Mr. Roberts and Mrs. Talbot, or between Roberts, Talbot, and Lappin for the stone quarry. Their entire agreements rested in parol. No special terms were fixed, and little else was said about the partnerships than simply that they were copartners. Neither firm seems to have kept any books of account. The crushed stone was brought to Detroit in boats. The first load that came was desired by both Roberts and Talbot and by Lappin. Mr. Lappin testified that he finally made arrangements with Roberts and Talbot that they should take the first load of stone, and give him in payment therefor cedar blocks. He testified that this was carried out; that they furnished the blocks and took the stone pursuant to this agreement. This is the defense claimed. Mr. Lappin, it seems, paid most of the rent and expenses in running the stone quarry. He testified that he never received any bill from plaintiffs for the blocks, and that Mr. Talbot told him that he was a partner with Roberts, and was “the company.” Another witness also testified that Talbot so informed him. Mr. Talbot testified, “ I represented Mrs. Talbot in all the partnership matters.” Besides this, he had a power of attorney’from his wife, authorizing him, “in her name, place, and stead, to sign in her name all contracts, bonds, checks, drafts, notes, and all other papers necessary for the conduct of the business of the firm of E. K. Roberts & Co.” Neither Mr. Roberts nor Mr. Talbot, under their own testimony, disclosed to Lappin that Mrs. Talbot was Mr. Roberts’ partner. The agreement testified to by Mr. Lappin was denied by Mr. Roberts and Mr. Talbot. It was further claimed, as the judge said to the jury, “that plaintiffs were to furnish defendant cedar blocks, and receive credit in the partnership account to the extent to which they furnished such blocks, and he should be debited practically with that amount as having been drawn from the partnership funds; that, in lieu of their putting in cash, they were to put in blocks, which he would credit as cash, and take the blocks himself.” The judge instructed the jury that individual debts could not be paid with copartnership property, unless the co-partnership assented thereto; but left it to the jury to find whether Mrs. Talbot “permitted E. K. Roberts & Co. to so conduct the business as to hold out the property as the property of E. K. Roberts and Mr. Talbot.” The jury rendered a verdict for the defendants.

      Julian 6r. Dickinson, for appellants.

      Anderson & Backham, for appellee Lappin.

      Brennan, Donnelly & Van de Mark, for appellee Fidelity & Deposit Co.
   Grant, J.

(after stating the facts). Plaintiffs were not dealers in cedar blocks. They only purchased and had them on hand for use in paving. They also used crushed stone. Defendant Lappin was engaged in the same business, and used the same kind of materials. Mrs. Talbot was not actively engaged in the business. Why the business, which had theretofore been carried on by Mr.. Talbot, was put in the name of his wife, does not appear. The fact does appear, and was so known to Lappin, that Talbot had been engaged for several years in the business. She trusted its entire management to her husband, so that his acts were her acts. The agency conferred upon him appears to have been unlimited, under his testimony. She was not a witness. Lappin evidently had control and possession of the stone, and was entitled to use it. To accommodate Roberts & Co. the arrangement was made for the exchange. Roberts & Co. obtained the benefit of it. Plaintiffs had urgent need of the stone to prevent their defaulting to the city in carrying out their contract. The arrangement hound Mr. Roberts, for he was a party to it. We think, under the testimony of the transaction, as detailed by the defendant Lappin, and under the authority conferred upon Talbot by Mrs. Talbot, that his act in any lawful transaction connected with the business .bound her and that the judge would have been justified in instructing the jury that, if they found the agreement to be as claimed by the defendant, they should render a verdict for him. The arrangement was in the nature of a purchase of the stone from Lappin for the use and benefit of plaintiffs. Mrs. Talbot is in no worse position than she would have been if Roberts and her husband had purchased the stone elsewhere. As between Roberts and the defendant, their rights can be safely protected in a settlement of the partnership matters of Roberts, Talbot, and Lappin.

The judgment is affirmed.

The other Justices concurred.


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    HAMMEL v. FIRST NATIONAL BANK OF HANCOCK.
    Chattel Mortgages — Priority — Purchase Money — After-Acquired Property.
    A purchase of chattels, and the contemporaneous mortgage thereof for the purchase price, constitute one transaction, entitling the mortgage to precedence over a prior mortgage covering the purchaser’s after-acquired property.
    Case made from Houghton; Streeter, J.
    Submitted December 13, 1901.
    Decided December 21, 1901.
    Trover by Jacob Hammel against the First National Bank of Hancock. There was a judgment for plaintiff on verdict directed by the court, and defendant assigns error.
    Affirmed.

      Dunstan & Hanchette, for appellant.

      Gray, Haire & Bice, for appellee.
   Moore, J.

The plaintiff obtained a judgment in the court below. The defendant has brought the case here as a case made.

In December, 1896, one Eliassen was indebted to the defendant, and upon that day gave it a chattel mortgage, covering all horses, wagons, sleighs, harnesses, etc., belonging to him; also all that might thereafter belong to him. The mortgage was duly recorded on the day given, with the town clerk of the proper township, and kept properly renewed. In January, 1901, the First National Bank of Hancock foreclosed the mortgage, took possession of all the chattels therein mentioned, and sold the same at public auction. November 16, 1900, Mr. Eliassen bought of the plaintiff three horses, and, at the same time, gave a chattel mortgage upon them and other personal property for the purchase price of said horses, which chattel mortgage was at once duly filed. Later the defendant foreclosed its mortgage, seizing and selling the three horses sold by Hammel to Eliassen. Hammel then sued the bank in trover and recovered a judgment.

The sole question involved is, Which of these mortgages has priority ? It is claimed by defendant that the record of the chattel mortgage is due notice to all who deal with the mortgagor as regards future-acquired property, citing Eddy v. McCall, 71 Mich. 503 (39 N. W. 734), and that this case is controlling in its favor. We cannot assent to this position. The sale by Hammel to Eliassen, and the giving' of the chattel mortgage, were concurrent. They formed one transaction. Eliassen obtained no title freed from a lien. The only title he had was subject to the lien. It was not intended to give him any other title, and he did not expect to receive any other. We cannot express the rule of law which controls the case better than to quote from the opinion of Justice Bradley in U. S. v. New Orleans Railroad, 12 Wall. 362, which reads, in part, as follows:

“The appellants contend, in the next place, that the decision upon the facts was erroneous; that the mortgages, being prior in date to the bond given for the purchase money of these locomotives and cars, and being expressly made to include after-acquired property, attached to the property as soon as it was purchased, and displaced any junior lien. This, we apprehend, is an erroneous view of the doctrine by which after-acquired property is made to serve the uses of a mortgage. That doctrine is intended to subserve the purposes of justice, and not injustice. Such an application of it as is sought by the appellants would often result in gross injustice. A mortgage intended to cover after-acquired property can only attach itself to such property in the condition in which it comes into the mortgagor’s hands. If that property is already subject to mortgages or other liens, the general mortgage does not displace them, though they may be junior to it in point of time. It only attaches to such interest as the mortgagor acquires; and, if he purchase property and give a mortgage for the purchase money; the deed which he receives and the mortgage which he gives are regarded as one transaction, and no general lien impending over him, whether in the shape of a general mortgage, or judgment, or recognizance, can displace such mortgage for purchase money.”

Judgment is affirmed.

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


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    WHALEN v. GRANT.
    Trial — Compromise Verdict— Review.
    Where, in an action for work and labor, the evidence is conflicting, both as to the price to be paid and the amount of labor performed, -and defendant claims to have overpaid plaintiff, a verdict for less than the full amount of plaintiff’s claim will not be set aside as a compromise verdict, as part of the testimony of both parties may have been credited, and part rejected, by the jury.
    Error to Wayne; Donovan, J.
    Submitted December 13, 1901.
    Decided December 21, 1901.

      Assumpsit by Martin K. Whalen against Archibald Grant for work and labor performed. There was a judgment for plaintiff, and, defendant’s motion for a new trial having been denied, he brings error.
    Affirmed.

      J. J. Speed (O. D. Joslyn, of counsel), for appellant.

      Jay Fuller (Matthew H. Finn and William H. Hockaday, of counsel), for appellee.
   Moore, J.

The plaintiff recovered a judgment in the court below for $463.79. The defendant has brought the case here by writ of error. In 1895 the defendant had a contract with the street-railway company to remove a quantity of cobblestones, and to do considerable excavating of the street, made necessary by the reconstruction of the street-railway track. Mr. Grant employed Mr. Whalen to do this work. Payments were made from time to time, amounting in the aggregate to $2,628.04. After the work was all done, the plaintiff claimed there was due him $731.17. Defendant claimed there was but $31.67 due, for which amount he sent his check to plaintiff, who returned it because it stated it was “in full” for the work. On the trial defendant claimed he had overpaid plaintiff $110, in addition to the check of $31.67. It is the claim of defendant the verdict shows the jury, instead of being governed by the evidence, rendered a compromise verdict; that, if Whalen was right in his contention, he should have received the full amount of his claim, and, because it was a compromise verdict, it should be set aside.

The testimony was as conflicting as it could well be. The parties are not agreed as to the price to be paid for the work. They are not agreed as to the measurements. We do not think it can be said this is shown to be a compromise verdict. The jury may have believed part of the testimony offered on the part of the plaintiff, and rejected other portions of it. They may have done this, also, as to the testimony offered on the part of the defendant. The case is ruled by Benedict v. Provision Co., 115 Mich. 527 (73 N. W. 802).

Judgment is affirmed.

The other Justices concurred.


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    LODER v. REED.
    Justices of the Peace — Docket Entries — Time of Adjournment — Entry of Judgment.
    Entries in the docket of a justice under the date to which the cause had been adjourned, which show that the case was called at 10 o’clock, and that defendant’s motion for an adjournment was overruled, and the case “adjourned” until 1 o’clock, when judgment was entered for plaintiff, are not open to the objection that they do not show the date to which the cause was adjourned, and the date of the entry of judgment.
    Error to Lapeer; Smith, J.
    Submitted December 13, 1901.
    Decided December 21, 1901.

      Assumpsit by Benjamin E. Loder against Anna Reed for goods sold and delivered. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Stickney & Reed, for appellant.

      I. J. Kohler, for appellee.
   Montgomery, C. J.

This case originated in justice’s court, was removed by the defendant to the circuit court by certiorari, and, upon affirmance of the judgment, is brought here by writ of error. The errors assigned are the refusal of the justice to grant an adjournment of the case, and the failure to make the date to which the case was adjourned, and the date of the entry of judgment, appear upon the docket.

As to the first question, it will suffice to say that we are of the opinion that the justice did not err in the exercise of his discretion in refusing an adjournment.

As to the second question, the docket shows a regular adjournment from the 1st of February to the 15th of February, 1901. The docket then proceeds, under date of February 15, 1901:

“ Ten o’clock a. m., at my office in the city of Lapeer. Cause called. Plaintiff appears, ready for trial. B. P. Reed appeared for the defendant. * * * Whereupon the defendant’s attorney made a motion for an adjournment on account of the sickness of the defendant.”

This is followed by an account of the proceedings upon the application for an adjournment, concluding as follows

“I overruled said motion, and adjourned said cause until one o’clock p. m., at my office in the city of Lapeer, for hearing. One o’clock p. m., at my office in the city of Lapeer. Cause called. Plaintiff, witnesses, and his attorney present. Defendant not present. And, after holding the cause open for one hour, the defendant not yet appearing, I did proceed to hear the proofs on the part of the plaintiff in said cause. * * * And, after hearing the proofs and allegations of the parties, judgment is hereby forthwith rendered in favor of the said plaintiff,” etc.

There is no question that the docket should show the time and place to which a cause is adjourned, and the date of the entry of judgment. It has been frequently held that this is jurisdictional. See Waldron v. Palmer, 104 Mich. 556 (62 N. W. 731); Mitts v. Harvey, 125 Mich. 354 (84 N. W. 288). But, after this is said, we are also of the opinion that this docket does show the date to which the cause was adjourned, and the date of the entry of judgment. All the proceedings to which allusion has been made are under date of February 15th. This date appears in the docket. What follows, by reasonable intendment, is to be construed as under that date. The entry of the adjournment of the case until 1 o’clock, coupled with the statement that the motion for an adjournment, made on behalf of defendant, had been refused, clearly indicates a simple holding open of the case until 1 o’clock of that day. The subsequent entry has reference also to the same date, already appearing upon the docket. A reasonable and fair construction of the docket should be given, and, so construed, we think this docket shows the date of the entry of this judgment, and the date to which the adjournment was had. See Stoll v. Padley, 98 Mich. 13 (56 N. W. 1042).

The judgment will be affirmed.

The other Justices concurred.


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    AUDITOR GENERAL v. SAGE LAND & IMPROVEMENT CO.
    Taxation — Omission of Taxable Property — Effect on Validity of Tax.
    The action of the auditor general in deeding to the State, as tax homestead lands, a large quantity of land in a certain township, under 1 Comp. Laws, § 8949, and the subsequent omission of such lands from taxation as belonging to the State, if unauthorized, did not invalidate the taxes assessed against the remaining lands in the township, though improperly increasing the tax imposed upon them; the action of the authorities having been taken in good faith, and under a misconstruction of the tax law.
    Appeal from Ogemaw; Sharpe, J.
    Submitted October 10, 1901.
    Decided December 30, 1901.
    Petition by Roscoe D. Dix, auditor general, for the sale of lands delinquent for taxes: On objections filed by the Sage Land & Improvement Company. From a decree for petitioner, respondent appeals.
    Affirmed.

      E. M. Harris, Prosecuting Attorney, for petitioner.

      Hall & Brockway, for respondent.
   Moore, J.

In the year 1896, and for many years prior thereto, many lands in the township of Hill, in Ogemaw county, were delinquent for taxes, and had been bid off to the State for a consecutive period of more than three years, no application having been made to redeem or purchase the same, when the township board of the township, by resolution at a meeting held in December, 1896, requested the auditor general and the commissioner of the state land office to examine these lands for the purpose of placing them on the tax homestead list, under sections 127 to 134, inclusive, of Act No. 206 of the Public Acts of 1893, as amended by Act No. 154 of the Public Acts of 1895. Pursuant to such application and request, and acting on the report of the examiner of said lands, the auditor general did on the 25th day of October, 1897, deed the aforesaid lands (about 7,200 acres in all) to the State, as tax homestead lands, advising the township clerk, the county treasurer, and the supervisor of Hill township of his action; and, when the assessment roll was made in the spring of the year 1898, these lands were omitted, under section 130 of Act No. 206 of the Public Acts of 1893. The Sage Land & Improvement Company, appellant, refused to pay its taxes, and, on the hearing of the petition of the auditor general, filed its objections to the taxes appearing against its lands therein, for the reason that the action of the auditor general in deeding the aforesaid lands to the State October 25, 1897, under the provisions of section 127 of Act No. 206 of the Public Acts of 1893, as amended by Act No. 154 of the Public Acts of 1895, was unwarranted and void, and that, by reason of such lands being omitted from the roll of 1898, the respondent is called upon to pay much more than its uniform share of the tax levy of that year. The court on the 22d day of March, 1901, filed an opinion in said cause sustaining the several taxes, interest, costs, and charges appearing against the lands, and éntered a decree therefor against such lands. The case is brought here by the Sage Land & Improvement Company.

The position of the appellant, as stated by counsel, is as follows:

“The Constitution provides that ‘taxes shall be levied on such property as shall be prescribed by law.’ Article 14, § 11. ‘All assessments hereafter authorized shall be on property at its cash value.’ Article 14, § 12. ‘ For the purpose of taxation, real property shall include all lands within the State, and all buildings and fixtures thereon, and appurtenances thereto, except such as are expressly exempted by law.’ Act No. 206, Pub. Acts 1893, § 2. It is the requirement of the Constitution and statute law that the burden of taxation shall be borne equally, to the extent that the officers of the State and municipality imposing the same are able to make it when following the law. It cannot be seriously contended that a tax unlawfully imposed upon exempt property can be made lawful by invoking the claim that the officers acted in good faith. If this is true as to exempt property, the same principle determines that a tax imposed upon assessable property through the exemption of other assessable property is illegal. A misconstruction of the law affords no claim to protection, however honest the officers may be. Acting within the limits of the Constitution, the power to tax is statutory; and whenever this power is successfully challenged by proofs, and no authority is found in the statute for the proceedings, they must fail. It has been the uniform rule of this court that, to render a tax lawful, it must be spread over the whole territory comprising the municipality imposing 'the levy, and equally over the whole assessable property therein, and a plea of good faith on the part of the officers making a mistaken assessment in this regard is of no avail,” — citing Sears v. Cottrell, 5 Mich. 273; People v. Township Board of Salem, 20 Mich. 474 (4 Am. Rep. 400); Michigan Land & Iron Co. v. Township of Republic, 65 Mich. 628 (32 N. W. 882); Auditor General v. McArthur, 87 Mich. 464 (49 N. W. 592); Auditor General v. Prescott, 94 Mich. 190 (53 N. W. 1058).
“A tax is void that is prejudicial or unwarranted, whether arising from want of lawful authority to impose it, or from illegal action in administering the law. Two things, at least, must concur to make the tax valid: (l) There »must be a law that authorizes the tax; (2) there must be lawful proceedings in the administration of the law by the officers when imposing the authorized tax. If there is a failure in either of these regards, and the taxpayer is prejudiced thereby, he is entitled to relief; and it is immaterial that the officers, honestly, mistakenly, or in good faith, erroneously believed that the law warranted the unauthorized tax or proceedings. The mental attitude of the officer towards the law will not aid the taxpayer to discharge the unlawful imposition, or lessen his burden. The court must do this,” — citing article 6, § 32, Const. Mich.; article 14,, § 1, Const. U. S.; Connecticut Mut. Life Ins. Co. v. Wood, 115 Mich. 450 (74 N. W. 656); and other cases.

The circuit judge filed a written opinion in the case, a part of which reads as follows:

“The respondent, the Sage Land & Improvement Company, filed objections to the making of a decree against the lands owned by it in town 23 north, range 4 east (township of Hill), as prayed for in the petition. There are many objections and numerous reasons assigned, but it would seem that they all could be summarized in one, viz., that the action of the auditor general in deeding to the State a large portion of land in this township on October 25, 1897, under the provisions of section 127 of the tax law of 1893, as amended, was unwarranted and void, and that, by reason of these lands being omitted from the roll of 1898, the respondent is called upon to pay much more than its fair share of the tax levy of that year.
“It appears that there were, in 1897, 20,312 acres of land in this township subject to taxation, and that 7,240 acres were deeded to the State. Respondent owns about one-half of the balance of the lands in the township. It also appears that the lands of respondent are quite similar in quality and value to those deeded. It is apparent that its taxes have been largely increased by such action of the auditor general. There would seem to be no question but that the action of the auditor general in deeding these lands to the State was unwarranted and void. The lands had not been bid off to the State for a consecutive period of more than three years, as required. Neither were the lands of the character or quality provided for. There would seem to be no necessity for further discussing this question, as it is practically conceded by the State officers.
“The next question, and one I find much more difficulty in solving, is as to the effect of such action on the tax rolls of said township for succeeding years. For, if it be held that the taxes of respondent for the year 1898 are void by reason of the omission of these lands from the assessment roll of that year, then no valid tax can be assessed in the township of Hill until such action of the auditor general is rescinded, and these lands again assessed. It is not contended but that the auditor general acted in good faith in the proceedings which he took under section 127. Neither is it claimed that the supervisor or board of review acted fraudulently, or other than they believed to be in the due performance of their duty, in omitting these lands from the assessment roll. While objection is made to the application of the township board to have these lands examined, and to the report of the examiner, I should find, were it necessary to do so, that these were mere irregularities, and not sufficient to justify the avoidance of the tax. The erroneous construction of the law by the auditor general was the cause of the omission to assess these lands for the year 1898-. And it might not be improper to add that such construction was that generally adopted by the bar of the State previous to the decision of the Supreme Court in Connecticut Mut. Life Ins. Co. v. Wood, 115 Mich. 444 (74 N. W. 656).
“There would seem to be no question, under the authorities, but that the fraudulent, or even intentional, omission of any considerable amount of either real or personal property from the assessment roll avoids the entire tax, unless it be possible from the record to determine the fair share which should be paid by the contesting party. In the case of such intentional omission, where nq fraudulent motive is established, it has been held that such unlawful act in itself amounts to fraud in law. And in all of the cases cited by counsel for respondent it will be seen that the element of fraud was present. Auditor General v. Prescott, 94 Mich. 190 (53 N. W. 1058); Solomon v. Township of Oscoda, 77 Mich. 365 (43 N. W. 990); Walsh v. King, 74 Mich. 350 (41 N. W. 1080); Auditor General v. McArthur, 87 Mich. 457 (49 N. W. 592); Auditor General v. Pioneer Iron Co., 123 Mich. 521 (82 N. W. 260). Experience teaches us that it is impossible to have the tax laws executed so as to prevent inequality and injustice. And where these results have been produced by favoritism or fraud, or intentional misconduct, the courts have always granted relief. But where none of these elements are present, and the action complained of is simply due to an error in judgment on the part of the official, in my opinion, no case for relief is made out. While it is a hardship to require respondent to pay more than its fair share of the tax levy of 1898, it only suffers in common with the owners of the other third of the lands in the township.”

We do not feel as certain as did the circuit judge that these lands were improperly withdrawn from assessment. The record discloses that, as to some of them, the owners had not paid taxes since 1882, but had allowed them to be returned for nonpayment of taxes, and to be bid in by the State, year after year; and all of them had been bid in for a consecutive period of more than three years. It is very probable that, if the title of the State had been questioned in a direct proceeding, under the case of Connecticut Mut. Life Ins. Co. v. Wood, 115 Mich. 450 (74 N. W. 656), it would have been held invalid; but the record does not disclose that any steps have been taken by the former owners to vacate the decrees under which the State obtained title, and no effort may ever be made by any person having the right to do so to question the title of the State. The title, then, to these lands being in the State, was it not competent to exempt them from assessment ? In Cooley, Tax’n (2d Ed.), 171, it is said-:

“Every statute for the levy of taxes is, in a sense, a statute making exemptions; that is to say, it leaves many things untaxed which it would be entirely competent to tax if the legislature had deemed it wise or politic. One State w'ill lay the burden on property only, another on property and corporations, another on property and the different kinds of business, and so on. In each case there is such selection of subjects as the legislative wisdom has determined upon, and the determination is conclusive. All subjects for which taxation is not provided are exempted, and the subjects selected are alone, for the time, taxable.
“When, however, the selections have been made, and the general rule determined upon, it has been customary for the legislature to make certain exemptions of either persons or property coming within the general rule, but which, for reasons of general policy, it is deemed wise not to tax. Some of these, such as the exemptions of household furniture, tools of trade, etc., and the limited personal property which very poor persons may be possessed of, are to be looked upon rather as in the nature of limitations of the general rule, than as exceptions from it; the taxation being only of all that is possessed over and beyond what has been left out as absolutely needful to the owner’s support. * * *
“ Some things are always presumptively exempted from the operation of general tax laws, because it is reasonable to suppose they were not within the intent of the legislature in adopting them. Such is the case with property belonging to the State and its municipalities, and which is held by them for governmental purposes. All such property is taxable, if the State shall see fit to tax it; but to levy a tax upon it would render necessary new taxes to meet the demand of this tax, and thus the public would be taxing itself in order to raise money to pay over to itself, and no one would be benefited but the officers' employed, whose compensation would go to increase the useless levy. It cannot be supposed that the legislature would ever purposely lay such a burden upon public property, and it is therefore a reasonable conclusion that, however general may be the enumeration of property for taxation, the property held by the State and by all its municipalities for governmental purposes was intended to be excluded, and the law will be administered as excluding it in fact.”

In section 127, before cited, the legislature recognized the situation in which the State found itself in having lands which it had been compelled to buy in, year after year, still upon the assessment roll, and by the proposed legislation sought to obtain some relief. The action of the State authorities was a substantial compliance with the provisions of the law, and, speaking for myself, I do not think in this proceeding the appellant is in a situation to raise the question it seeks to raise here. I prefer, however, not to put the disposition of this case alone upon this ground. It appears clearly from the record that the assessing officer intended to assess all the property in his township which it was his duty to assess. He was advised by the State officers, whose advice it was his duty to follow, not to assess certain lands. He followed this advice. There is nothing to call in question either his good faith, or the good faith of the auditor general and the land commissioner, who undertook to carry out the provisions of the act passed by the legislature. No proceedings have ever been taken to review their action and set it aside. Suppose an assessing officer, acting in the utmost good faith, under a mistaken view of the law, were to leave unassessed one description of land of little value; would that avoid the roll ? And, if not, would the leaving off of five descriptions do so ? We think the circuit judge reached a right conclusion; that the true rule is as follows:

“It has been decided in a number of cases that accidental omissions from taxation of persons or property that should be taxed, occurring through the negligence or default of officers to whom the execution of the taxing laws is intrusted, would not have the effect to vitiate the whole tax. The reasons for this conclusion are summarized in one of the cases as follows:
‘ ‘ ‘ The execution of these laws is necessarily intrusted to men, and men are fallible, — liable to frequent mistakes of fact and errors of judgment. If such errors on the part of those who are attempting in good faith to perform their duties should vitiate the whole tax, no tax could ever be collected. And, therefore, though they sometimes increase improperly the burdens of those paying taxes, the rule which holds the tax not thereby avoided is absolutely essential to a continuation of government.’ Weeks v. City of Milwaukee, 10 Wis. 264.
“ It seems difficult to resist the force of this reasoning, and it applies to the case of a mistake of law with the same cogency as to the case of a mistake of fact. Indeed, where the omission has occurred through no purpose to evade or disregard official duty, the occasion which produced it seems wholly immaterial.” Cooley, Tax’n (2d Ed.), 216.

The decree of the court below is affirmed.

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

      Viz.: Auditor General v. Pioneer Iron Co., 123 Mich. 521 (82 N. W. 260); Hersey v. Board of Supervisors, 16 Wis. 185 (82 Am. Dec. 713); Johnston v. City of Oshkosh, 65 Wis. 473 (27 N. W. 320).


author: Hooker, J.

text:
    SIMMONS v. CONKLIN.
    1. Specific Performance — Decree—Construction.
    Under a bill for the specific performance of an oral land contract by the terms of which the land was to be occupied jointly during defendant’s lifetime, and then to go to complainant, a decree declaring that the title vest absolutely in complainant on the death of defendant, and that the decree have the same effect to vest the title as a deed from defendant would have, is not, construed as a whole, open to the objection that it vests the title in complainant prior to defendant’s death.

      2. Equity Practice — Modification of Decree.
    An objection to a decree cannot be urged where both court and counsel have formally indicated a willingness to modify the language so as to remove the objection.
    3. Bill of Review — Grounds for — Failure to Appeal.
    Leave to file a bill of review will not be granted on the sole ground that petitioner has lost his right to appeal through the neglect of his counsel.
    Appeal from Eaton; Smith, J.
    Submitted November 13, 1901.
    Decided December 30, 1901.
    Bill by Harvey Simmons and Marion J. Simmons against Allen Conklin and others for the specific performance of a land contract. There was a decree for complainants, and, from an order denying his petition for leave to file a bill of review, defendant Allen Conklin appeals.
    Affirmed;

      J. B. Hendee and Garry C. Fox, for complainants.

      Corbin & Peters, for appellant.
   Hooker, J.

The complainants filed a bill to compel the specific performance of an oral land contract made with them by defendant Allen Conklin, and incidentally to set aside some deeds of portions of the premises made by Allen Conklin to his codefendants. The contract contemplated the occupation of the premises by Allen Conklin and the complainants during the life of the former, after which the property was to belong to complainant Marion Simmons. A decree was rendered in favor of the complainants, and one or more of the defendants sought to appeal, but the appeal was dismissed. Subsequently Allen Conklin caused to be filed his petition praying for leave to file a bill of review upon two grounds: First, that the decree was erroneous, in that it adjudged that title to the premises should immediately vest in complainant Marion Simmons, instead of at the death of Allen Conklin, as prayed in the bill; and, second, because the right to appeal was lost through the neglect of his counsel employed to take the necessary steps to perfect the appeal, whereby he was prevented from obtaining a review of his cause in this court.

The decree rendered upon the hearing of the original cáse followed an order that the complainants take a decree as prayed, etc. A decree was thereafter prepared, and defendants’ solicitor appended the following, viz.: “I hereby consent to the entry of the foregoing decree.” It was thereafter signed by the circuit judge. The decree adjudged that the deeds from defendant to others be set aside, and the “title in fee reinvest in defendant Allen Conklin; ” and it was further provided that:

‘ ‘And it appearing to this court that the equities of the case are with the complainants, and that the said complainant Marion J. Simmons has equitable rights and interests in and to said premises, to wit, * * *,' together with the appurtenances thereunto belonging, and fully described in the bill of complaint filed herein: Now, therefore, it is further ordered, adjudged, and decreed that the title to the said described premises, with the appurtenances thereunto belonging, be, and the same is hereby, decreed to vest absolutely in the complainant Marion J. Simmons upon the death of the said Allen Conklin. * * * It is further ordered, adjudged, and decreed that this decree .shall stand in place of, and have the same force and effect to vest the title in the complainant Marion J. Simmons as a deed of conveyance from the said defendant Allen Conklin to the said Marion J. Simmons might or would have if executed and delivered to her.”

In support of the first ground it is claimed that the last clause in the decree, to wit, “ it is further ordered, adjudged, and decreed that this decree shall stand in place of, and have the same force and effect to vest the title in the complainant Marion J. Simmons as a deed of conveyance from the said defendant Allen Conklin to the said Marion J. Simmons might or would have if executed and delivered to her,” has the effect to give to the complainants an immediate and absolute title in fee to the premises, which the bill shows that they are not entitled to. Taking the decree as a whole, it does not bear the construction claimed by counsel; and, if it did, both court and counsel have indicated formally a willingness to modify the language so as to remove a possibility of such construction.

It is unfortunate that a party should lose his opportunity to appeal without his own fault, but we cannot relieve in such a case as this without practically nullifying the statute. While, as shown in Barnes v. Kent Circuit Judge, 97 Mich. 212 (56 N. W. 599), this petition was seasonably made, it is apparent that it is being used as a substitute for an appeal, and it cannot be granted upon such a ground. The court will be slow to grant a petition for leave to file a bill of review in a case where the time for taking an appeal has been allowed to pass before filing it.

The order of the learned circuit judge denying the prayer of the petition is affirmed, with costs.

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


text:
    STATE SAVINGS BANK OF ANN ARBOR v. BUHL.
    Contracts — Settlement — Mutual Mistake of Fact — Lost Articles.
    Where a seal-skin sack was delivered to defendants for storage, they agreeing to return the same, or, in case of its destruction, to pay the fixed value thereof, and, when demanded, it could not be found, and defendants, believing it to have been stolen, gave a check in payment for the sack, and it was found by them the day after the check was given, held, that the settlement was made under a mutual mistake of fact, justifying defend-ants in stopping payment of the check, though they may have been negligent.
    Error to Wayne; Carpenter, J.
    Submitted November 14, 1901.
    Decided December 30, 1901.

      Assumpsit by the State Savings Bank of Ann Arbor against Walter Buhl and Andrew J. Agnew, copartners as Walter Buhl & Company, to recover the amount of a check. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Arthur Brown, for appellant.

      Graves & Hatch, for appellees.
   Moore, J.

The plaintiff brings this case here by writ of error. After the testimony was closed, it was agreed by court and counsel that there was no question of fact in the case for the jury, and that a verdict should be directed either for the plaintiff or the defendants. There is no’ claim the bank was a bona fide holder of the check. Mrs. Wilson left with defendants a seal-skin cloak, and took from them a receipt, the material part of which reads as follows:

“The owner, Mrs. M. E. Wilson, 712 E. Washington, Ann Arbor, M., of the following named goods, agrees to pay 3 per cent., $-, on .the values affixed, as agreed upon by the owner and Walter Buhl & Co., in consideration of which said Walter Buhl & Co. agree to return said goods in as good order as received, or, if the goods are destroyed, to pay the value, as herein fixed.”

The other facts in the case sufficiently appear in what the trial judge said to the jury in directing a verdict, which was as follows:

“ This is a case which turns entirely upon a proposition of law. Plaintiff takes the position that it is entitled to a direction, and the defendants likewise take that position; so that, in no view of the case, is there any question to be submitted to you. There is no such dispute in facts as raises such an issue. The facts are these: In the month of May, 1900, Mrs. Wilson, of Ann Arbor, deposited for safe-keeping in defendants’ store a seal-skin sack. She took from the defendants a receipt, according to which the defendants promised any time within six months, as I construe the receipt, to return this, and, if it was destroyed, to pay .her $300. About the 1st of October, as I recall the date, Mrs. Wilson informed the defendants that she wanted the sack. She received a letter shortly after, saying they could not find the sack. ' Other correspondence took place between them, the defendants saying in this correspondence that they thought the sack had been delivered to somebody else. The defendants said that they would pay her the money that was agreed to be paid. A certain conversation occurred between them, and in that conversation the defendants expressed the thought that this sack had been stolen. Matters ran along until shortly before the 22d of October, when the defendants notified Mrs. Wilson that, if she would produce her receipt, they would pay her the money, less the charges." Accordingly, she came to Detroit on the 22d of October, and delivered the receipt, and received a check for the amount of $300, less the charges; the exact amount, I think, being $291.25. She returned to Ann Arbor with this check, and deposited it in the plaintiff’s bank, the proceeds being placed to her credit, not being withdrawn from the bank. On the following day, that check, having reached the bank in Detroit, was protested for nonpayment, the defendants having in the meantime found the sack, and stopped payment on the check. This sack was found by the defendants stored away in their store, and they sent their agent very shortly afterwards, with the sack, to Ann Arbor, for the purpose of returning it to Mrs. Wilson, and receiving the check. He had full authority to make this arrangement with Mrs. Wilson, to pay her whatever expenses she had been put to, and to take back or to take from her a much cheaper sack that she had bought to replace this one. There is some dispute between this agent and Mrs. Wilson as to exactly what took place. He testifies that he told her exactly what he had been told to say. She testifies, on the other hand, that he said to her that he would do what was right.
“Now, the question under these facts (I think I have stated the facts in sufficient detail) is whether the plaintiff or defendants are entitled to recover. It is insisted by the defendants that there was such a mistake of facts at the time the settlement was made as to invalidate that settlement. This question was argued quite fully yesterday before me, and at that time I did not agree with the defendants’ counsel upon that question. I thought there was not such a mistake of facts as would warrant the court in saying that settlement was invalidated. Subsequent reflection, however, has changed my mind on that question. I do think now that there was such a mistake of facts as to invalidate that settlement. At the time this settlement was made, it is very obvious that the defendants thought either that this sack had been taken out of the stor4e by some one by mistake, or that it had been stolen. That is what they stated to the plaintiff, and the plaintiff knew nothing about it except what they told her. She supposed, in other words, the fact to be that this sack was either taken from the store or stolen. Now, the fact is that the sack was there in the store, being properly cared for. In other words, the only thing that prevented the sack being produced was the want of a vigilant search for it. It seems to me, on reflection, that there was very clearly a mutual mistake of fact. The settlement was made upon the assumption that .the sack was not in the store, where a vigilant search would find it, but that it was gone.
‘ ‘ Yesterday, when this question was discussed before me, it seemed to me that all we could say was that the assumption was that the sack was lost, and that in fact it was lost when it could not be found. That is true in one sense. In one sense, whatever you cannot find is lost. When your spectacles are on top of your head, and you don’t know where they are, in a sense they are lost. In another sense they are not lost. That is to say, there is a very great difference between a thing being mislaid, which a vigilant search will discover, and a thing being gone where ordinary vigilance will not regain it. This view of the question has occurred to me: The effect of a valid settlement between these parties was to pass the title of this property; that is, When this money was paid to Mrs. Wilson, the effect of that settlement, if valid, was to pass-the property of the sack from her to the defendants. Her title ended and their title was acquired by this settlement. I think we gain considerable light by looking at it from this standpoint. Suppose that this sack had been worth more than $300, the effect of a valid settlement would have been to pass the title. Yet, supposing it had been worth that much, — that is, worth more than $300, — and it ha¿ been discovered the day after the check was given to be right there in the store, where a vigilant search would find it, the question is whether Mrs. Wilson could not have said, ‘Gentlemen, I made this settlement under a misapprehension, and am I bound to let you keep this property, which is worth more than $300?’ Most obviously she could have said that, and very clearly the title would not have passed, because there was a mutual mistake of fact. It might be said, in answer to that, that, while she might avoid it, it would not be true that they could. Undoubtedly, if they had been guilty of fraud, their rights would not have been the same as hers; but, of course, there is no question about that in this case. That is not claimed. It could not be claimed under the evidence. The most that can be claimed is that the defendants were negligent' in not having made this vigilant search, or in having been too careful, as their counsel claim, in putting this property where they did. As I understand it, a mistake of fact, even resulting from negligence of a party, does not prevent his avoiding a contract made in reliance upon it, where both parties have made the same mistake, even though the mistake is due to the negligence of one.”

It is insisted by plaintiff that defendants agreed to return the cape to Mrs. Wilson when called for, or to pay its value; and counsel says:

“Now, upon these admitted facts, upon what principle of law can this ‘settlement,’ made in plain pursuance of an express contractual liability, be set aside in an action at law, against one who has been guilty of no negligence, who has acted in the utmost good faith, and free from any fault whatever, in favor of those who, after investigation, with ample opportunity, announce their entire willingness to perform their contract, and who, in point of fact, have done nothing more than that, and when any hardship that may result therefrom is traceable to their own negligence ? If, under these facts, the settlement made is not to be treated as a final settlement, when are parties to understand that their business transactions are closed ? How long was Mrs. Wilson to wait before she could dismiss the matter from her mind, and consider the transaction at an end? We submit that under these facts, when the defendants had made an investigation, and thereafter notified Mrs. Wilson of their willingness to pay, and pursuant thereto gave her their check in ‘full settlement,’ that was an end of the matter, and that no case can be found in the books where, under similar circumstances, such a settlement has been held invalid and set aside in an action at law,” — citing McArthur v. Luce, 43 Mich. 435 (5 N. W. 451, 38 Am. Rep. 204); Walker v. Conant, 65 Mich. 197 (31 N. W. 786); Id., 69 Mich. 321 (37 N. W. 292, 13 Am. St. Rep. 391); Wheeler v. Hatheway, 58 Mich. 77 (24 N. W. 780); and Boyce v. Wilson, 32 Md. 122.

It will be observed, by referring to the receipt, that the defendants are required “to return said goods in as good order as received, or, if the goods are destroyed, to pay the value, as herein fixed.” The proofs show that the defendants thought the cape was stolen, which, so far as their being able to restore it to Mrs. Wilson, was equivalent to its destruction. This belief of the defendants was communicated to Mrs. Wilson. Neither she nor the defendants supposed the garment was in the possession of the defendants and had simply been misplaced. It was in view of this mistaken belief of the situation that the check was delivered to Mrs. Wilson. While it may be difficult to find a case on all fours with this, it may be said the •courts almost unanimously now hold that, although the mistake of facts is caused by the negligence of one party, that party is not precluded thereby from availing himself ■of the mistake if the other party can be relieved of any prejudice caused thereby. Walker v. Conant, 65 Mich. 194 (31 N. W. 786); Id., 69 Mich. 321, 328 (37 N. W. 292, 13 Am. St. Rep. 391); Pingree v. Gas Co., 107 Mich. 156, 160 (65 N. W. 6); Eberle v. Heaton, 124 Mich. 205, 209 (82 N. W. 820).

There is another view which may be taken of this case. In the cases cited on behalf of the plaintiff the money actually had been paid. In this case, while the parties,, under a misapprehension of the facts, had agreed upon a settlement, before the agreement was carried out they both learned what the true situation was, and the defendants stopped payment of the check. See 1 Am. & Eng. Enc. Law (2d Ed.), 428; Hawley v. Foote, 19 Wend. 516; 18 Am. & Eng. Enc. Law (1st Ed.), 167, 168, and cases cited.

We think the trial court made a proper disposition of the case.

Judgment is affirmed.

The other Justices concurred.