author: Montgomery, J.

text:
    SMITH v. CITY OF DETROIT.
    1. Condemnation for Street Opening — Parties—Mortgagees— Collateral Attack.
    The fact that a mortgagee was not made a party to proceedings to condemn land for street purposes does not deprive the court of jurisdiction, so as to open the judgment to collateral attack by property owners assessed for benefits, where there was sufficient land left to pay the mortgage, and the city was in full possession of the street.
    2. Same — Descriptions of Property — Sufficiency.
    Nor is it prerequisite to jurisdiction that the property of each owner be described separately and accurately in the petition, if the owners are in fact notified that their lands are sought to be condemned; 3 How. Stat. § 3064/, providing that an amendment may be allowed in the description of property proposed to be taken whenever it will not interfere with the substantial rights of the parties.
    3. Same — Setting Aside Assessment — Remedy by Council.
    Section 61, chap. 7, of the Detroit" charter, as amended by Act No. 463, Local Acts 1895, provides that, when any special assessment shall be held invalid by a court of competent jurisdiction, the common council may order a new assess- . ment for the same purpose. An assessment for benefits for the opening of a street was set aside because the resolution of the council apportioning the amounts to be paid by the city and by assessment up'on the local assessment district did not declare that the amount so assessed was a just proportion of the amount awarded by the jury. Held, that, while the preliminary determination was no part of the '• assessment," it was proper for the council to correct the resolution, and order a new assessment based thereon.

      Appeal from Wayne; Lillibridge, J.
    Submitted May 10, 1899.
    Decided July 5, 1899.
    Bill by Thomas Smith and others against the city of . Detroit to restrain the collection of an assessment in a street-opening proceeding. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      John J. Speed, for complainants.

      C. D. Joslyn, for defendant.
   Montgomery, J.

December 31, 1894, a petition was filed by the defendant to condemn property for the opening and extending of Mack avenue from Collins street to McDougall avenue. A verdict from a jury having been obtained, the verdict was confirmed, and the amount was certified to the common council. On April 6, 1897, the common council adopted a resolution fixing an assessment district, determining that the lands within the district were benefited by the opening of Mack avenue, and that there be levied the sum of. $5,618.33, in proportion, as near as may be, to the advantage which each lot or parcel is deemed to acquire by such improvement, and directing the board of assessors to proceed and make the assessment roll. It was further resolved that $3,745.54, being 40 per cent, of the amount awarded, be paid by the city out of the street-opening fund. The assessment roll was made as ordered, and confirmed; property of the complainants, among others, being assessed. The complainants thereupon filed their bill of complaint, and, the defendant having appeared and answered, it was decreed that the ■resolution of the common council apportioning the respective amounts to be paid by the city and by the assessment district did not determine that the sum t.o be assessed was a just proportion of the amount awarded by the jury, and the city was perpetually enjoined from collecting the assessment. This decree was entered on the 2d of November, 1897. On the 7th of December, 1897, the common council adopted a resolution, whereby it was resolved that the vote by which the assessment district for the opening of Mack avenue was adopted be rescinded. On the same date the council adopted a further resolution, fixing a district composed of identically the same property embraced in the district covered by the resolution of April 6th, and they further resolved that the sum of 15,618.33 was a just proportion of the compensation awarded by the jury which should be assessed upon the district, and the board of assessors were ordered to make an assessment roll for said amount. This assessment roll was made, and confirmed by the common council December 28, 1897. The same lands were assessed, and for the same amounts, as those described in the roll which was declared illegal by the decree above mentioned. The complainants thereupon filed the present bill of complaint, and pray for a perpetual injunction against the collection of the assessments against them.

It appears that the original petition filed was amended. This amendment was made by striking out parts of the description of the property to be taken, and inserting other matter; but there is nothing definite to show what was original and what is amendment. It stands now, “As amended by the order of the court.” No order permitting the amendment was ever entered, although the stenographer’s notes taken on the trial show an amendment of some kind was permitted.

The description of the entire property to be taken was given accurately, but, in describing parcels which were supposed to belong to the individuals named as owners, there was some inaccuracy, one parcel being described as “a small strip in unplatted alley.” It also appeared that' one description was mortgaged, and the mortgagee was not made a party to the condemnation proceedings. It appeared, however, that there were sufficient lands to pay the mortgage outside of the street, and which would be previously liable, and that the city was in full possession of the street.

Was it a prerequisite to jurisdiction that the property of each owner should be described separately and accurately, it appearing that the owners were in fact cited in ? The' statute (3 How. Stat. § 3064c) provides that—

“A description of the property to be taken shall be given, and generally the nature and extent of the use thereof that will be required in making and maintaining the improvement shall be stated, and also the names of the owners and others interested in the property, so far as can be ascertained, including those in possession of the premises.”

Section 3064j provides that amendments, either in form or substance, may be allowed to any paper, petition, process, record, or proceeding, or in the description of property proposed to be taken, or the name of any person, whenever the amendment will not interfere with the substantial rights of the parties. It appears that the owner was notified of the proceedings, and that an attempt was being made to condemn lands in which he had an interest, and that the description, though incorrect, was subject to amendment. We think the court had jurisdiction, therefore, and that the proceedings are not open to collateral attack. Borgman v. City of Detroit, 102 Mich. 261; Scotten v. City of Detroit, 106 Mich. 564; Brown v. City of Saginaw, 107 Mich. 643.

The complainants contend that the common council had no authority to adopt a new resolution after the first assessment had been declared invalid for the want of a sufficient one. Section 61, chap. 7, of the charter of Detroit, as amended by Act No. 463, Local Acts 1895, provides that—

“ When any special assessment shall be * * * held invalid by the judgment or decree of any court of competent jurisdiction, the common council may cause a new special assessment to be made for the purpose for which the original assessment was made. Such new assessment shall be made in the manner for making original assessments of like nature.”

It is contended that the preliminary determination as to the proportion of the compensation which shall be paid by the owners of the property specially benefited is no part of the assessment, and that, therefore, the council did not, under this statute, have authority to make a correction of the earlier resolution fixing this proportion. The purpose of this enactment is clear enough. The legislative intent was that assessments should not fail because the authorities had failed in following the statute. It is true the preliminary determination is not the assessment, but it is the new assessment which is attacked. The statute furnishes authority for making this, and, unless there is something in the determination of the court in the first case which precludes the council from taking the preliminary action which had been omitted, we are not able to discover any valid objection to the exercise of that power. The bill charges that the decree in the first case found that the resolution of the common council, apportioning the respective amounts to be paid by the city and by assessment upon the local assessment district, did not determine that the amount so assessed was a just proportion of the amount awarded by the jury. The council, not having made such a determination, proceeded, on December 7, 1897, to pass a resolution which was in part as follows:

“It is hereby determined that the sum of five thousand six hundred eighteen and 33-100 dollars is a just proportion of the compensation awarded by the jury for the property taken for said improvement, which should be paid by the owners or occupants of the above-described pieces- and parcels of real estate, which will be thus benefited by said improvement.”

We think it was competent for the council to make this determination when it did, and, having made it, the authority for a reassessment is given by the statute cited above.

We think the other criticisms of the proceedings presented in the brief of counsel without merit. The decree is affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

license: Public Domain

text:
    GRAHAM v. LAMB.
    1. Deeds — Parent and Child — Cancellation—Rights of Mortgagee-Constructive Notice.
    Knowledge on the part of a wife that her husband, previously-married, procured from his daughter, without any consideration, shortly after the latter became of age, a quitclaim deed of property which she had inherited from her mother, is sufficient to put her on inquiry, before accepting a mortgage upon the property, as to the character of the transaction, and will subject her, as mortgagee, to the right of the daughter to have the deed set aside on showing that she had no knowledge that the title to the property had descended to her on her mother’s death.
    2. Husband and Wife — Mortgage to Secure Husband’s Debt . —Marshaling Securities — Homestead.
    A wife, by including her separate property in a mortgage, together with the property of her husband, to secure her husband’s debt, does not make it the primary fund out of which the debt should be satisfied, though his property included in the mortgage constituted the fiomestead.
    Appeal from St. Clair; Vance, J.
    Submitted June 7, 1899.
    Decided July 5, 1899.
    Bill by Olive L. Graham against Hosea and Eugenia Lamb, and Ellis B., Daniel,, and Susan B. Clark, executors of the last will and testament of Ira M. Clark, deceased, to -set aside a deed. From the decree rendered, complainant appeals.
    Modified.

      Atkinson, Wolcott & Moore, for complainant.

      Thomas Wellman, for defendants Lamb.

      John G. Graham, for defendants Clark.
   Montgomery, J.

This is a bill to set aside a deed. The circuit judge found the following facts:

“On January 4, 1873, Hosea Lamb owned in fee the W. i of the N. E. £ of section 2, township 8 N., of range 16 E., St. Clair county, Mich. On that date he quit-claimed to his wife, Mary A. Lamb, the S. ½ of the W. ½ of the N. E. i of said section 2, township 8 N., of range 16 E., for the stated consideration of $400, but no consideration was paid in fact. Hosea Lamb was indebted at this time on two notes given to one Lewis Potts, and, believing the indebtedness unjust, made this deed to his wife to avoid their payment. At this time he lived on, and made his home on, the north 40 acres. These Potts notes came to the hands of one William Stevenson, who recovered a judgment thereon against Hosea Lamb in this court in June, 1873, and execution upon this judgment was levied upon the 80 acres above described, about November 25, 1873. December 6, 1873, Hosea Lamb and his wife, Mary A., mortgaged the whole 80. acres to Robert J. Arnott for $202 to pay the Stevenson judgment. On February 12, 1878, Hosea and Mary A. Lamb, his wife, mortgaged the same 80 acres to Ira M. Clark for $400, and the proceeds of this mortgage, at least in part, were used to pay up the Arnott mortgage. Ira M. Clark died, and the defendants Ellis B., Susan B., and Daniel Clark are executors of the estate of Ira M. Clark, deceased. About May, 1885, Mary A., wife of Hosea Lamb, died, leaving the complainant, Olive Lamb, her sole heir at law, and owner in fee, subject to the Clark mortgage, of the S. i of the W. -]>- of the N. E. jr of said section 2, township 8 N., range 16 E., being the land in controversy. August 25, 1885, Olive Lamb quitclaimed the 40 acres last above described to her father, Hosea Lamb. No consideration was paid for this deed, and it recites that it was made on account of love and affection. At the time of giving this deed, Olive Lamb did not know that her mother owned this 40 acres at the time of her death, and did not know that she became the owner thereof on the death of her mother. She was then shortly past her majority, and was living with her father, and keeping house for him, on the 80 acres'where she had lived from childhood.
“ It is my conclusion that Olive Lamb was not advised or informed of her real interest in this 40 acres, either by her father or any one else, at the time she signed the quitclaim deed, and she did not know the nature of the business she transacted, or the rights or interests she had which were being transferred.
“About one and a half years after the death of his wife, Mary A. Lamb, Hosea Lamb married his present wife, Eugenia Lamb, oné of tbe defendants. Of this marriage there is one child, now about 6 years old. Eugenia Lamb, shortly after her marriage with Hosea Lamb, loaned him some money, and gave him some cattle to double, amounting in all to a considerable sum of money. Hosea Lamb had been interested in a store at Jeddo, and that business failed in 1895, involving him in debt. When Eugenia, his second wife, learned of his financial condition, she asked him for security for the money and property she had loaned him after their marriage. At the time he received this money and property from her he promised to give her security for their repayment when she requested it. On June 17, 1895, Hosea and his wife, Eugenia, went to an attorney, M. N. Mugan, who figured up the amount due from Hosea to Eugenia, and on that day Hosea gave his wife, Eugenia, a real-estate mortgage for $800 on the S. W. £ of the N. E. £ of section 2, township 8 N., range 16 E., the same premises Olive Lamb deeded to her father, August 25, 1885, and at the same time secured the indebtedness by a chattel mortgage on all, or nearly all, of his personal property. At the time Eugenia Lamb took this mortgage for $800, on June 17, 1895, she had no knowledge that Olive Lamb Graham questioned the validity of the deed she made to her father, August 25, 1885, or that it was open to question.”

The conclusion of the circuit judge was that complainant was entitled to have the deed made by her set aside as against Hosea Lamb, but that the equities of Eugenia Lamb were superior to those of complainant, and, as to the Clark mortgage, there were no equities which would justify a direction that the homestead should be sold first.

We ai’e not able to agree with the conclusion of the circuit judge as to either of these questions. Mrs. Eugenia Lamb testified as to her knowledge of complainant’s claim to the land as follows:

“Had you any knowledge of her having any interest in this property at the time you married Mr. Lamb ?
“A. No, sir.
“Q. And after and before you took this mortgage?
“A. Well, I just heard a while after. Mr. Lamb never spoke to me about it at all until since the trouble commenced to come. I had heard from different parties around that there had been something of that kind, but never from Mrs. Graham nor from Mr. Lamb. It came through other parties.
“Q. Was there any intention on your part, when you took this mortgage, to defrand Olive out of her rights ?
“A. No, sir; not one dollar.
“Q. Now, you say you heard of this, or heard something about it, from other parties. What was it you heard ?
“A. Mrs. Methven told me concerning this deed. She said about Olive’s mother having the deed, and how Mr. Lamb had got Olive to deed it back to him; and Mr. Graham said that, if he had got hold of Olive before she gave the deed, he would never have let her give the deed back to her father.
“Q. Where is Mrs. Methven now?
“A. She is dead.”

We cannot escape the conclusion that, when Mrs. Eugenia Lamb took her mortgage, she had enough knowledge to put her on inquiry.

As to the Clark mortgage: The first Mrs, Lamb, by including her separate property in a mortgage to secure her husband’s debt, did not make that the primary fund out of which the debt should be satisfied. We think the decree should have provided that the amount of the mortgage should, in case of foreclosure, be satisfied by a sale of complainant’s lands only in the event that the lands owned by defendant Hosea are insufficient to satisfy the mortgage. The decree will be modified accordingly, and the mortgage of Eugenia Lamb will be declared not to be a lien upon the land in question. Complainant will recover costs against Hosea Lamb and Eugenia Lamb.

The other Justices concurred.


text:
    MIDDAUGH v. MITCHELL.
    1. Master and Servant — Dangerous Machinery — Assumption of Risk.
    An employé in a sawmill assumed the risk incident to working in the vicinity of a rapidly-revolving shaft having a projecting set-screw, where he had been employed for a long time about the mill, and, only two or three days before being caught on the set-screw, had talked with a fellow-employé regarding the danger of injury from that source.
    2. Same — Directions of Master.
    The fact that a servant is directed to work in a place of especial danger does not render the master liable for resulting injuries,' where the danger is entirely familiar to him, and the work is directly in the line of his employment.
    Error to Wexford; Aldrich, J.
    Submitted May 9, 1899.
    Decided July 5, 1899.
    Case by Laverne Middaugh, administratrix of the estate of William Middaugh, deceased, against Austin W. Mitchell and William W. Mitchell, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendants bring error.
    Reversed.

      E. Eugene Haskins and D. E. McIntyre, for appellants.

      C. C. Chittenden and E. S. Pratt, for appellee.
   Montgomery, J.

The plaintiff recovered a verdict and judgment for an alleged negligent injury to her husband, William Middaugh, resulting in his death. The facts appearing on the trial were that on March 2, 1897, defendants were, and for more than 15 years prior thereto had been, copartners operating an extensive lumber manufacturing plant at Jennings, Missaukee county, Mich. On said day they had in their employ George Moore as superintendent, and, among other operatives and employes, Frank Woodcook, Alex. Yandon, and William Middaugh. The latter was employed as roustabout, handy man, or extra man to assist in odd jobs, and take the place of any man laid off temporarily, and had worked all around sawmills for upwards of 15 years. On the date mentioned, early in the afternoon, Woodcook, Yandon, and Middaugh were engaged in placing in position in the lower part of the mill an upright shaft with attached disk at its lower end, which had been previously taken out for repairs. The weight of the shaft and disk appears to have been about 500 pounds, and the disk was about 3 feet in diameter. The work of the mill is all performed on the second floor, and the driving machinery, shafts, pulleys, bearings, etc., are all hung or located below in the ground story of the building. This first or ground story is about 12 feet in height.

This disk and shaft had been brought from the depot by the superintendent and these three men, and placed on the lower floor, under its proper place. At this point Moore was called away temporarily, and left the raising of the disk to be proceeded with in his absence. The shaft and disk were then raised, by means of rope and pulley-blocks, to a scaffold about ?■£ feet above the floor, and rested there. This scaffold was constructed by utilizing a “running-board ” for its east support, and a 2x8 spiked to two posts about 12 feet west of the running-board for its west support, and then placing three or four loose planks east and west across these two supports, and directly under the position of the shaft and disk when in place. The “running-board ” is a stationary plank running north and south, from post to post, lengthwise of the mill, about 7£ feet above the lower floor, and is used to walk on in oiling bearings, shifting belts, and other things which would otherwise require carrying a ladder from place to place. The disk and shaft had been pulled up by means of the rope and blocks between these loose planks, and, when of sufficient height, the loose planks were pushed nearer together, and under the sides of the disk. In this part of raising the disk, the rope by which Yandon and Middaugh pulled ran from the upper sheave down to the floor. on the west side of the running-board. After the disk was rested on the scaffold, Woodcook, who worked on the scaffold, pulled the rope up, and dropped it over and down on the east side of the running-board, and between the ends of the loose planks, which extended over the running-board, to the east, some two feet. One end of this running-board is against the west side of a 12-inch post, and the east end of the north loose cross-plank was some 3 or 4 feet south from this 12-inch post.

On the south side of this post is a box, which bears the end of a 3-inch shaft that has a revolution of about 300 to the minute. The west end of the shaft runs in this box, and, as is usual at the end bearing, a 2-inch collar is secured to the shaft against the east side of the box. The collar is held on the shaft by means of a set-screw, which projects from the collar about seven-eighths of an inch. It revolves in a square corner formed by the south face of the post and the east side of the box. It is seven-eighths of an inch east from the box, and 2^ inches west of the east face of the post, and the front or south line of the box projects out about an inch beyond the periphery of the revolving set-screw. It is 4 feet from the bottom of the shaft down to the floor. This 3-inch shaft formed the north boundary, and the running-board mentioned formed the west boundary, of a clear open space 5 or 6 feet east and west by 10 or 12 feet north and south.

To still further raise the disk, and place the same in position, Yandon and Middaugh took the rope where it had been dropped over the running-board by Woodcook,. and proceeded to pull. Middaugh stood with his back to the revolving shaft, and Yandon facing him, both standing near the 12-inch post. Woodcook was on the scaffold to guide the upper end of the disk shaft through a hole in the floor above. Neither Woodcook nor Yandon saw Middaugh at the moment of the accident, as Yandon was looking back upon the scaffold, and Woodcook’s attention was directed to guiding the disk shaft. Yandon felt the rope jerked from his hands; Woodcook felt the north loose cross-plank jerked almost from under him; and both turned, and saw Middaugh wound on the revolving shaft near the 12-inch post. From the injuries thus received, Middaugh died in a few hours.

The lower portion of the mill was lighted by windows and an open door. The disk in question was about 20 feet from one window, about 25 feet from another, and about 15 feet from a large door, where teams drive through. Yandon, who was called as a witness for plaintiff, testified that, when a man first comes into the mill from the outside, he cannot see very good, but he further testified that there was no difficulty in seeing the shaft; it could be plainly seen. “I had no difficulty in seeing objects about the mill down there after I was down there a few minutes. Mr. Middaugh had been under- there longer than I had.”

The plaintiff offered testimony showing that defendants had rebuilt the mill some two years before the accident, and that in most mills of modern construction the setscrews are either covered or counter-sunk. The plaintiff called Mr. Woodcook as a witness. He testified that, on an occasion a month or two before the accident, deceased had filled the place of day-watchman; that it was his duty as day-watchman to oil the box that the shaft in question ran in; and that witness was unable to see how the deceased could have failed to see the collar and set-screw while doing so. This witness further testified that, a day or two prior to the accident, witness and deceased were working together in the basement of the mill, putting up some bents; that, while at work, a Mr. Trickey, an employe, passed under the shaft on which Middaugh was afterwards caught; that deceased and witness had a conversation about it, as to which the witness testified as follows:

“We talked something about the place being dangerous for a man to dodge under there, for he might get caught. The set-screw was mentioned. We said it was a dangerous place there; there was a set-screw there, and a man dodging under there might get caught.”

It further appeared that deceased was an experienced mill man, having worked in a mill for upwards of 15 years. At the conclusion of the testimony, the defendants’ counsel asked the court to charge that there could be no recovery.

The plaintiff’s counsel state their petition in their brief as follows:

“That, under the proof, it was a question of fact for the jury to pass on as to (1) whether the danger was so apparent that Middaugh must be held to have assumed the risk; (2) whether deceased had prior knowledge of the fact that there was a projecting set-screw on the shaft; (3) whether the deceased was not justified in acting on the suggestion of Woodcook in taking his position and doing his work-where he did. And we submit, under the law, that the deceased had a right to assume that the place designated was a safe place, and, if it proved otherwise, the fault would be the fault of the defendants, who were represented by Woodcook.”

We are unable to assent to these propositions, in view of the testimony in this case. We do not find it necessary to pass upon the first, inasmuch as we think the second cannot be maintained. The undisputed testimony shows that deceased had for a long time been employed about this mill; that at least on one occasion his duties brought him in a position where he should have discovered the setscrew on the shaft; and that he was, not more than two or three days before, informed of the danger, and his attention specifically called to the set-screw. Under these circumstances, the deceased must be held to have assumed the risk, and, if it was negligence to attempt the work in which deceased was engaged, he was himself guilty of contributory negligence. Michigan Central R. Co. v. Smithson, 45 Mich. 212; Brennan v. Railroad Co., 93 Mich. 156; Perlick v. Wooden - Ware Co., 119 Mich. 331; Goodnow v. Emery Mills, 146 Mass. 261; 1 Bailey, Pers. Inj. § 673 et seq.

In support of the proposition that deceased'was justified in acting on the suggestion of Woodcook, and in taking his position where he did, plaintiff’s counsel cite Walker v. Railway Co., 104 Mich. 606; Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205; Jones v. Railway Co., 49 Mich. 573. In each of these cases the servant was directed out of the line of his employment by a superior. In the present case the deceased was directly in the line of his employment, so that, if it be considered that Wood-cook, in casting the rope down where he did, invited deceased to take a position dangerously near the shaft, the case presented is not at all analogous to the cases cited; on the contrary, if there was fault in that regard, it was the fault of a fellow-servant. The instruction asked by defendants should have been given.

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Grant, C. J.

text:
    ELDRIDGE v. RICHMOND.
    1. Tax Sales — Notice—Sufficiency of Publication.
    The auditor general’s petition in a tax proceeding need not be published for 10 days prior to the day fixed for the hearing, in addition to the four weeks required by Act No. 162, Pub. Acts 1895, § 66, although that section requires a contesting party to file objections at least 10 days prior to the day of hearing; it being further provided that objections may be filed within five days after the hearing, if the party was prevented from filing them before without fault on his part.
    2. Same — State Lands — Rights of Purchaser.
    A purchase of state tax lands is effected when application therefor is made to the auditor general, accompanied by a deposit of the full amount due; and hence, where this was done prior to the time when Act No. 229, Pub. Acts 1897, went into effect, providing that one thereafter purchasing such lands should have no right to recover the possession thereof without first serving a specified notice upon the original owner, the purchaser was not within the act, although neither his deed nor certificate of purchase issued until after the act had become operative.
    Error to Oceana; Russell, J.
    Submitted January 6, 1899.
    Decided July 5, 1899.
    Ejectment by Minnie B. Eldridge against Edgar D. Richmond and Lydia L. Richmond. From a judgment for defendants, plaintiff brings error.
    Reversed.

      James H. McFarlan, for appellant.

      L. M. Hartwick and Wallace Foote, for appellees.
   Grant, C. J.

Two questions are presented by this record:

1. Under section 66, Act No. 162, Pub. Acts 1895, must the petition in tax proceedings be published for 4 weeks and 10 days next prior to the hearing ? The question must be answered in the negative. The language of the statute is that a copy of the petition shall “be published at least once in each week for four successive weeks next prior to the time fixed for the hearing thereof.” Such publication was had. The defendants contend that, because another provision of the same section requires a contesting party to file objections at least 10 days prior to the day fixed for the hearing, the notice must be published 4 weeks before this period of 10 days commences; otherwise, one who sees the advertisement on or after its last publication would be deprived of the benefit of the 10-day provision. The statute provides for such a contingency by giving the right to appear and file objections within 5 days after the hearing, if one has been prevented from filing his objections before without any fault on his part.

2. Did plaintiff acquire her tax title to this land after August 29, 1897 ? On August 30th, Act No. 229 of the Public Acts of 1,897 took effect. That act required notice to be served upon the owner of the land before a writ of assistance or other process for the possession of the land could be obtained. That act applied only to sales made after the law went into effect. If purchase was not made until after this law took effect, plaintiff could not maintain her suit. A question of fact is involved, which the learned circuit judge found against the plaintiff. We think he was in error. The tax deed was dated October 11th, and recited the purchase as having been made on the 3d of August. On October 11th a tax certificate was issued to the plaintiff, on the foot of which was written, “Deeded October 11th.” At the head of it was written the number of the application, and “Filed August 3, 1897.” The auditor general made a report to the county treasurer of state tax lands sold during the month of October. In such report was this description reported as sold to plaintiff. Above her name appeared the letters and figures: “ App. 8-3-97. No. 31,093.” These words and figures mean “application dated August 3,1897.” The application was made by James H. McFarlan, who subsequently assigned to plaintiff. We think it conclusively appears that application and payment were made on August 3d. This was all that was necessary to complete the purchase. It is urged that the minds of the applicant and- the auditor general did not meet until the latter had investigated, and determined whether the land was subject to sale. The mind of the auditor general is of no consequence. He is not clothed vpith any discretion. His act is purely ministerial. The deposit with him of the amount due, and the application, complied with the law, and rendered the purchase complete. The subsequent acts of issuing a certificate, or executing a deed0, or both, are mere ministerial acts, necessary to evidence title. The title which the State has becomes absolute by application and payment. The fact that the auditor general reported the sale as in October is not in conflict with the other undisputed facts.

Judgment reversed, and entered in this court for the plaintiff; and, as the case is ejectment, it will be remanded to the court below for further proceedings.

The other Justices concurred.


author: Hooker, J.

text:
    JOHNSTON v. MITCHELL.
    1. School Board — Vacancies —Mandamus—Other Adequate Eehedv.
    2 Comp. Laws. 1897, § 4747, authorizes the board of trustees of a graded school district to fill vacancies in their number until the next annual meeting, and further provides that, on failure of the board to elect its own officers, they shall be appointed by the board of school inspectors. Section 4668 provides that,, in case of a vacancy on the board of an ungraded district, the two remaining officers shall immediately fill such vacancy, and, in case of two vacancies, the remaining officer shall immediately call a meeting of the district to fill the vacancies; and that, in case the vacancies are not so filled within 20 days, the board of school inspectors shall fill them. Sections 4659-4661 make it the duty of any member of the district board to call a special meeting of the district, for the transaction of any special business, on the written request of five legal voters of the district. The concluding section of the act (4774) declares that all of its provisions (section 4689 et seq.) shall apply to every school district in the State, unless inconsistent with some special enactment of the legislature. Held, that mandamus will not lie to compel a trustee of a graded district to meet with his colleagues to fill two vacancies on the board, since there are other adequate remedies; section 4774 having the effect (it seems) of making applicable to graded districts the provision of section 4668 relative to the filling of vacancies by the board of school inspectors, and the remedy by special election, which is also 'rendered applicable, being presumed to be available in such cases where there is no showing that a written request of five legal voters could not be obtained.
    2. Same — Costs.
    The minority of a school board have no authority to commence an action in its name, and, if they do so, they will be individu ally responsible for the costs.

      Certiorari to Oakland; Smith, J.
    Submitted June 6, 1899.
    Decided July 5, 1899.

      Mandamus by Alfred Johnston, moderator, and Warren D. Clizbe, director, of school district No. one, fractional, of Bloomfield, Troy, Royal Oak, and Southfield, to compel George H. Mitchell, assessor of said district, to meet with relators for the purpose of filling vacancies on the district board. From an order granting the writ, respondent brings certiorari.

    Reversed.

      A. & S. H. Perry, for relators.

      Jerome W. Robbins, for respondent.
   Hooker, J.

Alfred Johnston is moderator, Warren D. Clizbe director, and George H. Mitchell assessor, of a graded school district. The other two trustees resigned as early as January 5, 1899. Johnston and Clizbe joined in an application for a mandamus to compel Mitchell to meet with them and fill the vacancies caused by such resignations, he having refused to do so. Said application was sworn to on February 1, 1899. The circuit court granted the writ, and the case is before us on certiorari.

2 Comp. Laws 1897, § 4747, authorizes the board of trustees to fill vacancies in their number until the next annual meeting. A similar provision is found in section 4668, which provides for filling such vacancies in districts not graded. It provides that, in case of such vacancy, the two remaining officers shall immediately fill such vacancy, and, in case of two vacancies, the remaining officer shall immediately call a meeting of the district to fill the vacancies, and, in case the vacancies are not filled in one of these modes within 20 days, the board of school inspectors shall fill them. It is contended by counsel for the respondent that section 4747 contains a similar provision as to school inspectors; but we think the language of that section restricts the power of school inspectors to the election of the officers of the board. Section 4774 provides:

“All provisions of this act shall apply and be in force in every school district, township, city, and village in this State, except- such as may be inconsistent with the direct provisions of some special enactment of the legislature.”

This provision has the effect to make section 4668 applicable to graded school districts, and the provision of that section as to school inspectors would be applicable, unless it should be thought that section 4747 is inconsistent with section 4668. We do not so consider it, but, if it were, the other provisions of section 4668 are applicable, and the vacancies could have been filled by the trustees, or at a special election called by the board for the purpose. People v. Board of Education of Detroit, 18 Mich. 400; Keweenaw Ass’n v. School Dist. No. 1 of Hancock Tp., 98 Mich. 442. If it be said that the meeting could not be called, because Mitchell refused to join in a meeting for the purpose, the exigency could have been met under sections 4659, 4660, and 4661. Thus, there is full power in the district to fill such vacancies, either by a special meeting, or by action of the school inspectors, if such provision is applicable to graded districts. The record indicates that the respondent may have carried out the wishes of the district in not participating in an election to fill the vacancies. We are not advised that there would have been any difficulty in obtaining the desired written request of five legal voters of the district for a special meeting to fill these vacancies, or of any reason why the selection by the board would be preferable. It would certainly have been a more expeditious and less expensive way than to attempt to coerce a member of the board. We are of the opinion that this is not a case where there is no other remedy.

It appears to be thought that the petitioners could make the district a party to this proceeding; but the minority of the board had no such authority, and, notwithstanding the fact that they have petitioned as trustees, they have no standing here except as private litigants. It is as though any other voter of the district had instituted the proceeding, without showing that his personal rights were injured. See People v. Whipple, 41 Mich. 548.

The order of the circuit court is reversed, and the writ is denied, with costs of both courts against the relators personally. This is not a proceeding by or against the district.

The other Justices concurred.


text:
    ATTORNEY GENERAL, ex rel. McCALL, v. KIRBY.
    Elections — Misconduct of Inspeotoes — Throwing Out Vote.
    In. determining the title to a county office, the vote of a township should be excluded, where it appears that in such township the mandatory provision of the election law requiring the official ballots to be kept in the custody of an inspector was violated by the appointment of an unofficial person as “ instructor ” to distribute the ballots, and allowing him access to the voters even after they had entered the booths, although the parties acted in good faith and it is not shown that voters were unduly influenced.
    Error to Gratiot; Daboll, J.
    Submitted June 22, 1899.
    Decided July 5, 1899.

      Quo warranto by Horace M. Oren, attorney general, on the relation of Archie McCall, against Julius B. Kirby, to determine the title to the office of prosecuting attorney for the county of Gratiot. From a judgment for respondent, relator brings error.
    Reversed.
    The relator and respondent were candidates for the office of prosecuting attorney at the election held on November 8, 1898, in the county of Gratiot. The county board of canvassers returned that relator received 2,991 votes and the respondent 3,014. This is an information in the nature of a quo warranto to test the title to the office. The relator claims that the returns from the township of Elba should be thrown out. If this were done, the relator is elected. The illegality of the election in that township is based upon the following facts. The following diagram shows the situation of the room where the election was held:

    M is the entrance to the room. I and J were gates for the entrance and exit of voters; Í being the entrance and J the exit. E, E, G, and H are the booths; L the table where thq inspectors sat; K the place where the challengers sat. The voters entered at I, passed to the left, obtained their ballots from one Kerr, who kept the ballots on a box or table at D, then entered the booths, passed through, deposited their ballots át L, and made their exit at J. B is- the room occupied by the inspectors and challengers. In addition to all the officers provided by the statute, the inspectors of election chose this Kerr as an instructor. The oaths of office appear in the record. Mr. Kerr, it appears, took the oath, a copy of which is in the record, but the blank for the designation of his office is not filled. The inspectors, after having the ballots marked as the law provides, gave them, as required, to- Mr. Kerr, who took them over, and placed them on the box at D. He took them as wanted, meeting the inspectors at some point in the space marked 0, between D and I. It was his custom to ask voters as they entered if they knew how to vote, and, if they desired instruction, he took the ballot, sometimes holding it against the wall, and gave instructions. He had free access to every voter who came in. It is clearly established thát he talked with them while in the booths with the. doors open, and himself standing in the door of the booth. He was, while talking with the electors, a good share of the time out of the sight of the inspectors and challengers. Several testified that they could hear him talking to the electors, but could not tell what he said. Several voters- testified that he showed them on the ballot where to vote for respondent, if they desired to. There is no evidence of attempting to influence voters, unless this be so considered. No protest was made to the action of Kerr during the election, and it appears that Mr. Kerr had filled this position at other elections.

      Horace M. Oren, Attorney General (George P. Stone, John T. Mathews, and W. A. Bahlke, of counsel), for appellant.

      Kelly S. Searl, Byron H. Sawyer, and W. A. Leet, for appellee.
   Grant, C. J.

(after stating the facts). Manifestly, the election law was wholly ignored in the appointment of Mr. Kerr, in intrusting the ballots to him, and permitting him to have free access to the electors after they had passed into the voting‘precinct, and into the booths themselves. It is urged that the inspectors of election acted in good faith, and supposed they had the right to appoint a man as an instructor of election. It is difficult to understand how intelligent men should reach this conclusion. The law makes no such provision, but makes it the clear duty of one inspector to keep possession of the ballots, and to hand them to the voters, after another inspector has opened the package, and still another has put his initials upon them. It is due to the member^ of the election board to say that there is no evidence that they acted from corrupt motives. If, however, this conduct can be sustained, and the plain provisions of the law ignored, rascals can very readily make the same plea, and it would be difficult to expose their rascality. These provisions of the law have been held mandatory. Attorney General v. McQuade, 94 Mich. 439; Attorney General v. Stillson, 108 Mich. 419. By a reference to the latter case, on page 421, it will appear that the interpreter, an officer provided by the act, was stationed very near to, and in plain sight of, the inspectors, and talked with the voters, as they came in, in a foreign language. It does not appear that there was more evidence of fraud in that case than in this. That case differs from this only in two particulars: First, that the conversation between the interpreter and the voters was not in the English language, as it was in this; and, second, that the “instructor,” as he was called in this case, had a better opportunity to secretly influence electors than did the interpreter in that. If these provisions are mandatory, — and we have so held, — they cannot be evaded by showing that the parties acted in good faith and that voters were not influenced. The law was intended to prevent just such transactions and chances .to influence voters, and courts cannot fritter them away by permitting jurors to find that there was no fraud and that voters were not unduly influenced.

The judgment must be set aside, and one entered for the relator.

The other Justices concurred.


text:
    DOXTATOR v. CHICAGO & WEST MICHIGAN RAILWAY CO.
    Railroad Companies — Injury to Employe — Amputations — Disposition of Fragments.
    A railroad company is not liable to a widow for failure to deliver to her, after her husband’s death, portions of his limbs which were amputated by the company’s surgeon because they had been crushed by the cars while he was-in the employ of the company, when the operation was performed at a hospital to which he was taken by a policeman in charge of the city ambulance, and the fragments were cremated according to the custom at the hospital, as the company did not assume the obligation, either by its employé who lifted the injured man from the ground, or by the surgeon who amputated his limbs, to deliver the remains, and the whole of them, to his widow, if death should ensue from the injury.
    Error to superior court of Grand Rapids; Burlingame, J.
    Submitted October 7, 1898.
    Decided July 11, 1899.
    Case by Fanny E. Doxtator against the Chicago & West Michigan Railway Company for failure to deliver to plaintiff for burial the entire remains of her deceased husband. From a judgment for plaintiff, defendant brings error.
    Reversed.

      William Alden Smith,, for appellant.

      McGarry & Belden (Brown & Adams, of counsel), for appellee.
   Montgomery, J.

This case presents a question which has never had the attention of this court, and one which, in some of its aspects, has not been considered by any other court of last resort, so far as we are advised. The plaintiff sues to recover damages on account of having been deprived of the right to give the remains of her deceased husband a Christian burial, and alleges that she was deprived of this right by the wrongful act of the defendant. At the common law there was said to be no property in a dead bod}’, and in one sense this may still be deemed an accurate technical statement; but it has been held in a number of well-considered American cases that the one whose duty it is to care for the body of the deceased is entitled to possession of the body as it is when death comes, and that it is an actionable wrong for another to interfere with that right by withholding the body or mutilating it in any way. Larson v. Chase, 47 Minn. 307 (28 Am. St. Rep. 370); Foley v. Phelps, (Sup.) 37 N. Y. Supp. 471; Burney v. Children’s Hospital, 169 Mass. 57 (61 Am. St. Rep. 273); 8 Am. & Eng. Enc. Law (2d Ed.), 834. This right is conceded.

Another question, not discussed in the original brief of appellant, although adverted to in its supplemental brief, may be whether, under the facts as claimed by plaintiff, the right of action exists in the widow for the destruction of fragments amputated from the body of her husband during his lifetime, when the evidence discloses the fact that such destruction occurred during the lifetime of the husband. As this question was not at all discussed in the original brief of counsel, we pass it by, and direct our attention to the points raised; and for the understanding of these points a brief statement of the facts is essential.

On the morning of June 2, 1897, Thomas A. Doxtator was working as a switchman with a gang of men in charge of John Dozeman, foreman of the West Side yards of the Chicago & West Michigan Railway Company. At about 6:30 a. m. Doxtator was run over by the cars and fatally injured. His injuries were extensive. His right leg was crushed from the ankle to the knee. The bone protruded, and the foot hung only by the muscular attachments. The left leg was crushed from the lower third up to about the middle third of the thigh, and the pelvic bones were also broken. Foreman Dozeman was the first to reach Mr. Doxtator, and he called witness Strickland to hold his head while Dozeman called the doctor and the ambulance. Dozeman called Dr. G. K. Johnson, who was at that time chief surgeon for the Chicago & West Michigan Railway Company. He also notified police headquarters to send the ambulance at once, and then notified the company’s agent at the Alien-street freight house (Mr. Hatch), who also telephoned to the doctor. Doxtator requested that he should not be taken home, as the shock would kill his wife. He requested to be taken to- a Catholic hospital. One witness testified that witness Strickland promised that he should be taken to a Catholic hospital, without naming which one. Strickland, however, testified that he did not remember whether Doxtator so requested or not. The custom of the railway company, as stated by Dr. Johnson, is to take the patient to whichever hospital he prefers. The ambulance arrived about 25 minutes after the accident had occurred. It was in charge of Patrolman John Scobey. While in the ambulance, Doxtator requested to be taken to a Catholic hospital. Patrolman Scobey thought it was nearer to Butterworth Hospital, and so took him to that place, accompanied by Switchman Strickland. Neither Doxtator nor Strickland raised any objection to his so doing.

They reached the hospital at 5 minutes to 7 in the morning. The hospital force called Dr. Lupinski, who, on the arrival of Dr. Wooster, turned the case over to the latter. Dr. Wooster had exclusive control of the case, and was working under a general employment by the Chicago & West Michigan Railway Company. With the assistance of Dr. Lupinski and of Dr. Smith, the house physician of the hospital, he amputated the legs at about 8 o’clock in the morning. From the nature of the case, the doctors knew that the wound was necessarily fatal. The left leg was taken off near the thigh; the right leg, below the knee. Neither Dr. Lupinski nor Dr. Smith was employed by the railroad company, but Dr. Lupinski assisted in the operation without any special agreement, having been called by the hospital. One Clarence L. Brainard, the orderly of the hospital, attended upon the surgeons, and testified for the plaintiff that he burned the fragments about 9 or 10 o’clock in the morning. He testified that he asked, in the presence of Dr. Lupinski and Dr. Wooster, what he should do with the fragments; that Dr. Lupinski replied, and that he had no instructions from any other physician; that, when he asked Dr. Lupinski what to do with the fragments, Dr. Lupinski inquired what was usually done with such fragments, and, being told by the orderly that they were usually burned, directed the orderly to do as he had been accustomed to do. Dr. Wooster testified that he knew nothing of the disposition of the fragments, and had nothing to do with it; that he gave no instructions whatever regarding them, and did not know of their whereabouts or disposition.

- The theory of the plaintiff is that, when the railroad company lifted Doxtator from the ground, it took upon its shoulders a duty, and that duty was to care for him while he should live, and at his death deliver his remains, and the whole of 'them, over to his wife for burial'; that the company did not do this, but, instead, negligently allowed the cremation of the dissevered limbs, and is therefore liable to the widow in damages. It becomes important, therefore, to inquire just what duty the railroad company was under, and just how far it assumed control over the injured man. This question must, in the main, be determined as one of first impression, as no case analogous has been cited, and our research has not been more successful than that of the learned counsel on either side of the case, who are to be commended for the exhaustive examination which they have given the subject. When this accident occurred, the common instincts of humanity forbade that this injured man be left to lie where he had fallen. His fellow workmen or any stranger would be impelled to minister to him, and the first impulse would be to call a surgeon and an ambulance, and see that he was taken where he could be treated. The yard foreman performed this plain duty, by notifying Dr. Johnson, the surgeon of the road, and calling the ambulance from police headquarters. By doing so, neither the foreman nor the railroad company can be said to have become bailee, or to have assumed such a control over the injured man as to preclude the relatives from assuming charge of the ministrations to him. But by Doxtator’s own request he was not taken to his home. The policeman in charge of the ambulance evidently did not look to the yard foreman or any other official for his instructions. It was at his suggestion, and without dissent from Doxtator or his fellow workman, Strickland, that he was taken to Butterworth Hospital, instead of to a Catholic hospital. On arriving at the hospital, the hospital authorities took charge of Rim and called Dr. Lupinski. Had Dr. Wooster not appeared, could it be successfully contended that those connected with the railroad company had done more than humanity required, or had rendered the company liable] for any further neglect of, or injury to, the unfortunate man ? To admit such a contention would amount to punisljing one for ministering to the comfort of a distressed fellow creature. Such cannot be held to be the obligation of -those concerned in removing this unfortunate man to an appropriate place for treatment. They did -precisely what they ought to have done, and are to be commended, rather than censured, for so doing. !

What, then, was the obligation assumed by Dr. Woostér ? He found the patient in an appropriate hospital, with another surgeon in attendance, apd, as he says, assumed charge of the case. Dr. Lupinpki continued to assist. Did Dr. Wooster, by thus assuming charge of the case, take upon himself, as the agent of jthe railroad company, the duty of seeing to it that, when death ensued, the body should be delivered to the widow, or did his duty consist merely of performing such operations as the nature of the case required, leaving it to the attendants at the hospital to make such disposition of the parts amputated as custom warranted ? We are of the opinion that the duty assumed by Dr. Wooster was the latter kind, merely, and that neither in purpose nor in fact did he assume to take charge of the dismembered parts. The assumption of the charge of the case was simply assuming charge of the operation, and the operation was performed under the conditions as Dr. Wooster found them. The patient was in a reputable hospital. Dr. Wooster had no knowledge of any direction as to the disposition of the amputated parts, and was not in fault in not assuming and guarding against an unwarranted disposition of them.

Under the testimony, the defendant was entitled to a directed verdict.

Judgment will be reversed, and a new trial ordered.

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


author: Moore, J.

text:
    HARVEY v. DETROIT FIRE & MARINE INSURANCE CO.
    1. Insurance —Action on Policy — Limitations —Summons.
    A claim under a policy of insurance is prosecuted within one year from the date of loss, as required by the terms of the policy, where a summons was taken out within the year, • and was properly served before the return day, although it was not placed in the hands of the officer until after the year had expired.
    2. Marine Insurance — Date op Loss — Stranded Vessel.
    The “ date of loss,” within the meaning of the limitation clause of a policy of marine insurance, is not necessarily the day a stranded vessel, subsequently released, repaired, and abandoned to the underwriters, ran upon the shoal.

      3. Same — Right of Abandonment — Items of Loss.
    The cost of removing the cargo from a grounded vessel in order to get it afloat should be considered as part of the loss in determining the amount lost, as decisive of the owner’s right to abandon the vessel to the underwriters, and is not an expense “incurred on account of the cargo,” withiri a clause of the policy excluding from the computation of the loss the expenses so incurred.

      4. Same — Decision to Abandon — Reasonable Time.
    Under a policy of marine insurance providing that the right to abandon shall not exist unless the loss exceeds one-half the valuation expressed’in the policy, the owner of a vessel which has been aground, and has been floated by the underwriters, is entitled to a reasonable time in which to gather information and make up his mind as to whether he has, and whether he wishes to exercise, the right.
    5. Same — Proportionate Risk.
    Abandonment to an underwriter of the proportion of a vessel which the amount of risk assumed by his policy bears to the value of the vessel expressed therein is sufficient, under the requirement of the policy that the abandonment convey an unincumbered and perfect title to the subject abandoned
    Error to Wayne; Carpenter,, J.
    Submitted January 6, 1899.
    Decided July 11, 1899.

      Assumpsit by Fred C. Harvey against the Detroit Fire & Marine Insurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Moore & Goff, for appellant.

      Wisner & Harvey and George Gartner, for appellee.
   Moore, J.

This is an appeal by the defendant from a judgment obtained against it by the plaintiff upon an insurance policy issued by defendant. The plaintiff, who resides in Detroit, was the owner of the schooner Penokee, which had a valuation, stated in the policies hereafter mentioned, of $4,050. The plaintiff, applied to defendant for insurance. Policies were delivered to him June 10, 1896, insuring the body, tackle, apparel, and other furniture of the schooner Penokee in the following amounts, viz.:

Detroit Fire & Marine Insurance Co,, defendant____$1,200
Providence-Washington Insurance Co.............. 500
St. Paul Fire & Marine Insurance Co............... 500
Greenwich Insurance Co........................... 500
Total______________________-__________________- $2,700

October 26, 1896, the schooner stranded on a reef or shoal near Port Maitland, about 45 miles from Buffalo and 235 miles from Detroit. She was loaded with coal, bound to Toledo. The same day the owner and the defendant learned of the disaster, and the plaintiff started an expedition to her relief from Detroit, while the insurance companies started one from Buffalo. Each protested against the other sending an expedition. The plaintiff notified the defendant that he would not share in the expenses of its expedition. The defendant made the same statement in relation to the expedition sent out by the plaintiff. The Buffalo expedition arrived at the schooner first. About 200 tons of coal were taken from the Penokee, after which she was pulled from the shoal and towed to Buffalo, arriving there on the evening of October 30th. She was placed in a dry-dock, and temporary repairs put upon her. She was afterwards permanently repaired by the underwriters, and tendered to plaintiff in March, 1897. December 24, 1896, the plaintiff notified the underwriters that he elected to abandon the schooner to them, as a total constructive loss, and should look to them for the amount of the insurance policies. The valuation of the vessel was fixed by the policy at $4,050. As already stated, she was insured for $2,700. It is the claim of the plaintiff that he was a co-insurer to the amount of $1,350. When he decided to abandon the vessel, he tendered a conveyance to the underwriters of the following interests in the vessel: To the defendant, 24-81; to each of the other three companies, 10-81, — retaining in himself 27-81.

A good many assignments of error are alleged. The case was tried by jury before Judge Carpenter; the judge reserving the right to enter a judgment for defendant later, if he was satisfied that, as a matter of law, he should do so. Afterwards a motion for a new trial was made, which was overruled. The case was very carefully tried, and it will not be necessary to refer to some of the assignments of error, though they have been carefully considered.

The important questions in the case are four in number:

First. Was the claim of plaintiff prosecuted in time?
Second. Was the plaintiff entitled to abandon the vessel as a total constructive loss ?
Third. Did plaintiff give notice of his intention to abandon soon enough ?
Fourth. Did the plaintiff tender to the underwriters a conveyance of a sufficient interest in the vessel ?

The answer to the first question will depend upon the construction to be placed upon the following clauses in the policy:

“Losses shall be payable in sixty days after proof of loss or damage covered by this policy, and of the amount thereof, and of the interest of the insured, shall be made and presented at the office of said company (the amount of the premium or note for premium on this policy, if unpaid, and all other indebtedness due this company, being first deducted).
“It is agreed that this policy shall become void if any other insurance is or shall be made upon the vessel interest hereby insured, which, together with this insurance, shall exceed the sum of twenty-seven hundred dollars.
“ It is agreed that all claims under this policy shall be void unless prosecuted within one year from the date of loss.”

The proof of loss was made December 24, 1896. This suit was commenced by summons, which was issued October 26, 1897, returnable November 16, 1897, which was placed in the hands of the pheriff November 12th, and was personally served upon the' defendant before the return day mentioned therein. Iti is the contention of the defendant that, as the summons was not placed in the hands of the sheriff until more than a year after the vessel was stranded, the claim was not prosecuted within one year from the date of loss. The circuit judge construed this clause to permit suit to be brought within a year after the cause of action accrued, and held that the cause of action did not accrue until 60 days after proof of loss was furnished. If the contention of the defendant is true, when did the loss occur ? In case of a fire or a death, there is not much trouble in deciding when the loss happened. There is more difficulty in a case of this character. Did the loss occur when the steamer first struck the reef, or next day, or when the hull was run into the dry-dock and the water was pumped out? What is meant by the requirement that the claim shall be prosecuted within one year from the date of loss ? Is this the same as a requirement that claimant shall commence his suit within a year ? The defendant gives an affirmative answer to the last question, and says the suit was not commenced until the summons was put into the hands of the officer to serve; citing Howell v. Shepard, 48 Mich. 472; First National Bank v. Dwight, 83 Mich. 191; Peck v. Insurance Co., 102 Mich. 52; and other cases. None of these cases are directly in point, and, so far as the case of Peck v. Insurance Go. bears upon the question, it is more favorable to the plaintiff than defendant. In the case at bar the summons was taken out in time, with a proper return day; it was put in the hands of a proper officer for service during its life, and was actually served before the return day. In the cases cited, the writs were either allowed to die, without service, and without being put in the hands of an officer, or were not issued until the statute of limitations had begun to run. What was done here comes within the rule.as stated by Justice Montgomery in Peck v. Insurance Co., supra: “The commencement of suit consists of suing out the summons, and delivering or transmitting it to an officer, with the bona fide intention of having it served.” I do not understand that not only must the summons be taken out, but it must be given to an officer and served, before the statute of limitations begins to run, to constitute the commencement of a suit; but it will be sufficient if the summons is taken out before the statute begins to run, with the bona fide intention of having it served, and placing it in the hands of an officer and having it served during its life. Angelí on Limitations (section 312) says:

‘ ‘ The general rule appears to be, in this country, that at the time of suing out of the writ the action commences; and either when the writ is delivered to the sheriff or to his deputy, or when it is sent to either of them, with a bona fide intention to be served upon the defendant, it is considered to have issued.”

See Chicago, etc., R. Co. v. Jenkins, 103 Ill. 588.

In construing what the words in the policy mean, it may be well to consider other provisions of the policy. One of its provisions is, there shall be no liability should the vessel be grounded in certain localities, where the known shallowness of the water is such that the grounding would be likely to occur in navigating that locality. Should the vessel go ashore in such a locality, though the owner would suffer great loss, he would have no claim against the underwriters, and, within the meaning of the policy, there would be no loss. The grounding of a vessel is not sufficient, of itself, to create a liability. It is the getting of her off, the floating her, and getting her to a place of safety, that makes a loss for which there is a liability to pay. Another provision of the policy requires the owner, in case of loss or misfortune, to give the underwriters prompt notice; and the insured is required to do what he can- to recover and save the property, submitting his plans to the underwriters. Another provision provides that no partial loss or particular average shall in any case be paid unless it equals 11 per cent, of the valuation. It is evident that the question of loss does not depend upon the vessel going aground, but upon the expense of getting her off and getting her repaired. As we shall see later, there can be no right of abandonment unless the loss exceeds 50 per cent, of the valuation of the vessel as stated in the policy. Until there is a right of abandonment, there can be no claim for total constructive loss, and this cannot be determined until it is known what the expenses are. Another clause of the policy provides, ‘ ‘ Losses shall be payable in sixty days after proof of loss or damage covered by this policy, and of the amount thereof, and of the interest of the insured, shall be made and presented at the office of the company.” We do not discover from the policy when this proof of loss must be made. Taking all the other provisions of the policy in connection with this particular provision, it is evident the question when suit must he brought is a difficult one to answer.' Intelligent men may differ as to its meaning. The language used in the policy was prepared by the insurance company. Where the language is ambiguous, it is to be construed most strongly against the company. See Steel v. Insurance Co., 2 C. C. A. 470, 51 Fed. 722, and the many cases there cited. We think the claim was prosecuted in time. See authorities collated in the case just cited.

The answer to the second question will be determined-by construing this clause in the policy:

“The right to abandon as for a constructive total loss shall not exist unless the loss exceeds one-half of the valuation expressed in this policy. In determining the amount of the loss, there shall be deducted therefrom the deductions from repairs provided in this policy; and in no case shall any amount be included, in determining such loss, for which the vessel or the insured -would be liable in general average, beyond the vessel’s proportion in general average of the cost of recovering and taking her to the port of repair, and the cost of repairs, with such deductions; and, among other things, there shall be excluded from the loss the vessel’s proportion of all expenses and sacrifices by jettison, and sacrifices of, or expenses incurred on account of, the cargo, or any part thereof; nor shall detention by the season, or by any other cause, be alleged •or allowed as cause for abandonment.”

The following portion of this clause had been used in policies but a short time: “Among other things, there shall be excluded from the loss * * * expenses incurred on account of the cargo, or any part thereof.” The adjuster of the company, with his 12 years of experience, testified that he never had been called to adjust a loss where such a clause was in the policy. In wrecking the vessel, 200 tons of coal were taken from her, and transferred to a barge. It is contended by defendant this was “an expense on account of the cargo,” and cannot be considered in deciding whether the loss exceeds one-half of the valuation expressed in the policy, so as to give the owner the right to abandon for a constructive total loss. It is claimed by counsel that the policy excludes (1) that proportion of the expenses incurred on account of the cargo which would, under general average, be chargeable to the vessel; (2) all expenses incurred solely on account of the cargo. It is this provision of the policy which is to govern the disposition of the items of expenditure in this case. It is said that, if the expenditures are disposed of upon this basis, the vessel’s proportion of the expenses is not sufficient to make its loss exceed one-half the valuation of the vessel, thereby making a constructive total loss. In overruling a motion for a new trial, the learned trial judge disposed of the claim of counsel in these words:

“ The most difficult problem in this case is to determine what general average expenses shall be considered. The policy provides, ‘ and in no case shall any amount be included, in determining such loss, for which the vessel or insured would be liable in general average, beyond the vessel’s proportion in general average of the cost of recovering and taking her to the port of repair, and the cost of repairs; * * * and, among other things, there shall be excluded from the loss the vessel’s proportion of all expenses and sacrifices by jettison, and sacrifices of, or expenses incurred on account of, the cargo, or any part thereof.’ I do not think this language excludes any expense to recover or to get to the place of repair both the vessel and the cargo. Defendant concedes that the expense of pulling the vessel off the shoal should not be excluded. It is clear, though, that at least a part of this expense was made necessary by tbe fact that tbe cargo was on tbe vessel. I am unable to see on what ground this item of expense can be included, and the expense of lightering the cargo be excluded. The language of the policy, in clear terms, includes the vessel’s proportion of recovering and taking her to the port of repair. Does not this clearly indicate that expenditures for the benefit of the vessel and cargo shall be included? The language, ‘and, among other things, there shall be excluded * ' * * all expenses and sacrifices by jettison, and sacrifices of, or expenses incurred on account of, the cargo, or any part thereof,’ from its natural import, as well as from its connection with the language just quoted, means expenses incurred solely on account of the cargo. An illustration of this is a charge of $12.55 for towing barge Taylor to unload coal, deducted from the Maytham Tug Line bill. I am satisfied that I erred in excluding the charge for unloading coal. The boat could not receive the needed repairs with the cargo on board.”

We are not aided in deciding whether the judge was right or not by any authorities, and the question is not free from doubt. When the vessel went ashore, she was loaded with coal. To release her, it was necessary to remove part of her cargo, that she might float. Can it be said that was an “expense on account of the cargo?” After she reached port, she was leaking badly, and it was necessary to keep a pump running, to prevent her sinking. Had she filled and sunk, great expense would have been involved in raising her. A small tug was used, which was brought to the vessel by the representatives of the underwriters who had an insurance upon the cargo. The record shows it was used for many purposes where the large tug, on account of the depth of water, was not available. She was used in going for provisions for the men who were at work to release the vessel as well as the cargo, and in running lines from the schooner to the lighter and the larger tug. We agree with the trial judge that, while these expenses were incurred because the cargo was in the vessel, they were not simply “ expenses on account of the cargo,” but were for the benefit of the vessel as well as the cargo.

Was the notice of abandonment in time? The policy does not mention any particular time in which the notice must be given. The owner is entitled to a reasonable time in which to make up his mind, and also to a reasonable time in which to get information so he can act advisedly. The testimony discloses that the insured made frequent inquiries of the underwriters for the amount of the expenses and charges, and that there was delay in obtaining‘these amounts. The notice of abandonment, was given before the permanent repairs were made, and before a contract was given therefor. The trial judge, on the motion for a new trial, held the notice was in time, and based his holding on the case of King v. Walker, 3 Hurl. & C. 209. We think he did not err in so holding.

The clause of the policy bearing upon the fourth question reads:

“Moreover, no abandonment in any case whatever, even when the right to abandon may exist, shall be held or allowed as effectual or valid unless it shall be in writing, signed by the insured, and delivered to the said company or its authorized agent, nor unless it shall be efficient, if accepted, to convey to and to vest in the said insurance company an unincumbered and perfect title to the subject abandoned. The valuation of said vessel expressed in this policy shall be considered the value in adjusting losses under this policy.”

It is claimed by defendant that plaintiff, instead of tendering a conveyance of 21-81, should have made a tender sufficient to convey to and vest in ¡the insurance company an unincumbered and perfect title.i Counsel argue, “The insurance covered the whole body of the schooner, and the abandonment should be co-extensive with the subject insured;” citing The Mary E. Perew, 15 Blatchf. 58; The Manitoba, 30 Fed. 129. The authorities are not free from conflict. If the contention of defendant is true, before plaintiff could make an abandonment which would entitle him to recover of the defendant, he must make a conveyance which would cut off his right to recover from the other underwriters who had policies on the vessel. It was the opinion of the trial judge that:

“The provision in the policy requires that the abandonment shall be evidenced by a written transfer, which shall convey to and vest in the insurance company an unincumbered and perfect title to the subject abandoned. The ‘subject abandoned,’ in my judgment, means that.part of the property covered by the policy of insurance.”

This conclusion is justified by 2 Phil. Ins. § 1490; 2 Arn. Ins. 953, 956, 979; Rice v. Cobb, 9 Cush. 302; Phillips v. Insurance Co., 11 La. Ann. 459; Merchants’, etc., Ins. Co. v. Duffield, 2 Handy, 122; Cincinnati Ins. Co. v. Duffield, 6 Ohio St. 200 (67 Am. Dec. 339). See Insurance Co. of North America v. Johnson, 17 C. C. A. 416, 70 Fed. 794; The Potomac, 105 U. S. 630.

The judgment is affirmed.

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


text:
    GORMAN v. BROSSARD.
    1. Statute op Frauds — Contracts op Barter.
    Contracts of barter are regarded, so far as the statute of frauds is concerned, as contracts of sale.
    2. Same — Sale op Curbstone — Constructive Delivery.
    A mere oral agreement on the part of one person to sell, and of another to accept, a quantity of curbstone lying where the seller deposited them after completing á public contract, the buyer agreeing to send for them when desired, is, notwithstanding the bulky nature of the subject-matter, insufficient to constitute a constructive delivery which will satisfy the statute of frauds; a constructive delivery, even, not being allowed to rest in words alone.

      3. Same — Payment.
    A mere oral agreement whereby a creditor is to take payment of a debt of §>125 in curbstone belonging to his debtor, where no receipt or other evidence is given of the extinguishment of.the debt, cannot be sustained, as against the objection that, there being no delivery, it violates the statute of frauds, on the ground that the transaction itself amounts to a payment within the meaning of that statute.
    Error to Wayne; Steere, J., presiding.
    Submitted January 25, 1899.
    Decided July 11, 1899.

      Assumpsit by Charles A. Gorman against Hubert Brossard for goods sold and delivered. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Walter Barlow, for appellant.

      Jonas B. Houck and Robert Parker, for appellee.
   Hooker, J.

The plaintiff shipped a quantity of crossing and curb stone to the defendant, upon his order. The defendant received the stone, and used most of them. Upon receiving the bill, he learned that the shipment exceeded the amount ordered, and he notified the plaintiff that the excess was subject to his order. He used some of the excess, however, and drew the remainder to a vacant place. He paid for all that he used, and refused to pay a draft for $129 for the remainder. The plaintiff brought an action to recover the balance, and appeals from a verdict and judgment for the defendant.

The defendant testified that the plaintiff called upon him in Detroit, and they went together to where the stone were, and that he agreed to accept them in satisfaction of his debt. The plaintiff denied this, and the question was-submitted to the jury. The plaintiff claimed that this alleged contract was void under the statute of frauds; the defendant, that it was not, because it was accompanied by a delivery of the stone, — it being contended that the title passed at the time of the agreement. The judge submitted the question to the jury, and permitted them to find that there was a delivery of the stone on the occasion mentioned. It is alleged that this was error. The stone were in an alley, and were at hand when the alleged arrangement was made. The defendant testified:

Q. Did you go and show it to him ?
“A. Yes; we started from Mr. Barlow’s office, in the Buhl Block, and went up Griswold street, and got on the car, and went up as far as the Western Market, and we got off at Ninth avenue. It was 45 or 50 or 60 feet of curbing that was right by the little office of the board of public works; and, after we examined them, he was satisfied, and we crossed over to where the balance was, across the street, in the alley, where I had some racks — -block racks — stored away. There was a pile of cobblestone there in the alley, and Mr. Gorman examined the curbstone I had there, — a fraction over 300 feet that was, including the 50 feet at the Western Market. I told him I would move them over there, and he said he was going to Toledo, and that he would have them shipped there, or send for them himself. ”

It is said in the brief that the stone were in a public alley when the arrangement was-made, but we find no evidence that the alley was public. It seems obvious, from the record, that the defendant accepted all of the stone, notwithstanding his letter, and the case did not go to the jury upon the theory that he did not. By his own testimony it is shown that he used about half of the excess, and that he attempted to turn out what was left in payment, which is inconsistent with a claim that he did not accept them.

It is claimed on behalf of the defendant:

First. That the transaction was in the nature of barter, and not a sale for money, and therefore not within the statute.
Second. If it shall be held to have amounted to a sale, that it was not within the statute, because there was an acceptance and receipt of the property.

The first proposition rests upon a strict construction of the statute, by which its application would be limited to cases of technical sales for money. Counsel cite no cases in point, and such as we have found do not support their claim. Mr. Browne, in his' work on Statute of Frauds (§ 393), says that “contracts of barter are regarded, so far as the statute of frauds is concerned, as contracts of sale.” Among the cases cited is Dowling v. McKenney, 124 Mass. 478, where a contract to exchange a monument for lands was held to be within the statute. See, also, Kuhns v. Gates, 92 Ind. 66, and Rutan v. Hinchman, 30 N. J. Law, 255.

The other question is not so easily disposed of. 3 How. Stat. § 6186, provides:

“No contract for the sale of any goods, wares, or merchandise, for the price of fifty dollars- or more, shall be valid, unless the purchaser shall accept and receive part of the goods sold, or shall give something in earnest to bind the bargain or in part payment, or unless some note or memorandum in writing of the bargain be made, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized.”

The transaction in question consisted entirely of a conversation. No act was shown, beyond the oral agreement on the one part to give, and upon the other to accept, the stone there present, in satisfaction of the debt. If the stone had not been upon the premises of the vendor or his bailee, but had been upon the lands of a third party, who was not a bailee (e. g., upon public ground, in which the vendor had no special interest), it is said that the “ vendor might effect a delivery by putting the goods at the disposal of the vendee, and suffering him to take actual control’of them,” — citing Benj. Sales, § 178. In support of this the author cites Tansley v. Turner, 3 Bing. N. C. 151. But that case does not. seem to involve the statute of frauds, because the contract was in writing. The same is true of the case of Cooper v. Bill, 3 Hurl. & C. 722. Thus, although the author applies these cases to a discussion of “acceptance and receipt” in connection with the statute of frauds, they involved a question of the passing of title under a valid contract. But the text does not imply that the language of the contract alone is sufficient to constitute an acceptance and receipt. Here the question is whether enough was done to render the contract valid and efficacious to pass title, and the authorities are harmonious that something is necessary beyond a mere oral agreement to sell and to buy.

In Marsh v. Rouse v. 44 N. Y. 647, it was said that, “to take the case out of the statute, the acts of the parties must have been of such a character as to unequivocally place the property within the power and under the exclusive dominion of the buyer. ” The case follows Shindler v. Houston, 1 N. Y. 261 (49 Am. Dec. 316). It was there said:

‘ ‘ As no part of the purchase money was paid by the vendee, the contract above stated was void by the statute of frauds (2 Rev. Stat. p. 136, § 3, subd. 3), unless-the buyer ‘ accepted and received ’ the whole or a part of the property sold. The object of the statute was not only to guard against the dishonesty of parties and the perjury of witnesses, but against the misunderstanding and mistakes of honest men. If the contract is reduced to writing, and ‘subscribed by the parties to be charged thereby,’ this object is effectually attained. The writing becomes its own interpreter. Where this is omitted, but the vendee has paid part of the price, or the vendor has delivered and the buyer has accepted a portion or all of the property, upon the strength of the agreement, these acts not only indicate deliberation and confidence upon the part of the contractors, but they furnish unequivocal evidence of the existence of a contract of some sort between them, although its terms and provisions must, after all, depend upon the recollection of witnesses.
“The case before us is destitute of all such collateral evidence. No acts of the party sought to be charged are proved. We are presented with a naked verbal agreement. The declarations relied upon as evidence of a delivery and acceptance constitute a part of the contract, and, of course, are obnoxious to all the evils and every objection against which it was the policy of the law to provide. The acts of part payment, of delivery and acceptance, mentioned in the statute, are something over and beyond the agreement of which they are a part performance, and which they assume as already existing. The entire absence of such evidence distinguishes the present case from all those that have been cited by the counsel for the plaintiff in support of this action: Chaplin v. Rogers, 1 East, 192; Jewett v. Warren, 12 Mass. 300 (7 Am. Dec. 74); Riddle v. Varnum, 20 Pick. 280; Bates v. Conkling, 10 Wend. 391; 2 Kent, Comm. (4th Ed.) 500, 501. The strong case, from the Pandects, of the column of granite, is not an exception; for it is fairly to be inferred that the consent of the vendor that the purchaser should take possession was subsequent to the sale.
“I am aware that there are cases in which it has been adjudged that, where the articles sold are ponderous, a symbolical or constructive delivery will be equivalent in its legal effect to an actual delivery. The delivery of a key of a warehouse in which goods sold are deposited furnishes an example of this kind. But, to aid the plaintiff, an authority must be shown that a stipulation in the contract of sale for the delivery, of the key or other indicia of possession will constitute a delivery and acceptance, within the statute. No such case can be found. The entire contract being void by the statute, the stipulation in reference to a constructive delivery would fall with the other provisions. In Phillips v. Bistolli, 2 Barn. & C. 511, the property was sold by an auctioneer, and delivered to the purchaser, who, after detaining it three or four minutes, handed it back, saying he was mistaken as to the price. The vendor refused to receive the property, and the jury found that the excuse was false in fact. The verdict was set aside; the court saying that, to satisfy the statute, there must be a delivery by the vendor, with an intention of vesting the right of possession in the vendee, and there must be an actual acceptance by the latter, with the intent of taking possession as owner. This, I apprehend, is the correct rule, and it is obvious that it can only be satisfied by something done subsequent to the sale unequivocally indicating the mutual intentions of the parties. Mere words are not sufficient. Bailey v. Ogden, 3 Johns. 421. Declarations accompanying an act, and explanatory of it, are undoubtedly admissible evidence, as a part of the res gestee. This is all that is established by the modern authorities. Jewett v. Warren, 12 Mass. 300; Dutilh v. Ritchie, 1 Dall. 171; Baldey v. Parker, 2 Barn. & C. 44; Bailey v. Ogden, 3 Johns. 421.”

In the same case, Bronson, J., concurring, said:

‘ ‘ A writing must be made, part of the purchase money must be paid, or the buyer must accept and receive part of the goods. Mere words of contract, unaccompanied by any act, cannot amount to a delivery. To hold otherwise would be repealing the statute. There may be a delivery without handling the property or changing its position. But that is only where the seller does an act by which he relinquishes his dominion over the property, and puts it in the power of the buyer, as by delivering the key of the warehouse in which the goods are deposited, or directing a bailee of the goods to deliver them to the buyer, with the assent of the bailee to hold the property for the new owner. In such case there is, in addition to the words of bargain, an act by which the dominion over the goods is transferred from the seller to the buyer. Here there was no delivery, either actual or symbolical. * * * It is undoubtedly true that it will not always be easy to make an actual delivery of bulky and ponderous articles. But there are other ways of satisfying the statute of frauds. The parties may piit their agreement in writing, or the buyer may pay the whole or some part of the purchase money. ”

"Wright, J., in the same case, said:

“The cases of Elmore v. Stone [1 Taunt. 458] and Chaplin v. Rogers are the most barren of acts indicating delivery, but these are not authority for the doctrine that words, unaccompanied by acts of the parties, are sufficient to satisfy the statute. Indeed, if any case could be shown which proceeds to that extent, and this court should be inclined to follow it, for all beneficial purposes the law might as well be stricken from our statute book; for it was this species of evidence, so vague and unsatisfactory, and so fruitfrd of frauds and perjuries, that the legislature aimed to repudiate. So far as I have been able to look into the numerous cases that have arisen under the statute, the controlling principle to be deduced from them is that, when the memorandum is dispensed with, the statute is not satisfied with anything but unequivocal acts of the parties, — not mere words, that are liable to be misunderstood and misconstrued, and dwell only in the imperfect memory of witnesses. The question has been, not whether the words used were sufficiently strong to express the intent of the parties, but whether the acts connected with them, both of seller and buyer, were equivocal or unequivocal. The best-considered cases hold that there must be a vesting of the possession of the goods in the vendee, as absolute owner, discharged of all lien for the price on the part of the vendor, and an ultimate acceptance and receiving of the property by the vendee, so unequivocal that he shall have precluded himself from taking any objection to the quantum or quality of the goods sold. Chit. Cont. 390, and cases cited; Hil. Sales, 135, and cases cited; Maberley v. Sheppard, 10 Bing. 102; Acebal v. Levy, Id. 384. But will proof of words alone show a delivery and acceptance, from which consequences like these may be reasonably inferred? Especially if those words relate, not to the question of delivery and acceptance, but to the contract itself ? * * * I think not.”

See, also, Rodgers v. Phillips, 40 N. Y. 519; Young v. Blaisdell, 60 Me. 272.

The' case of Hallenbeck v. Cochran, 20 Hun, 416, is much like the present case. An oral contract for the sale of hay, when the parties were in sight of a part of it, was held within the statute, though the plaintiff said at the time, “The hay is yours,” and defendant said, “Yes.” The case of Shindler v. Houston, supra,, has provoked criticism, but it is not necessary for us to adopt all that is there said. This court has had occasion to consider the Shindler Case, and has held that “it supports the only sound view, viz., that words are not enough, and that the statute can only be satisfied by something done subsequent to the sale unequivocally indicating the mutual intentions of the parties.” Alderton v. Buchoz, 3 Mich. 329.

But it may be said that the case need not turn upon the question of receipt and acceptance of the goods, because the contract may be valid without delivery, if something is given by way of earnest or part payment. 2 How. Stat. § 6186. We think there is no escape from the conclusion that this was an arrangement for the sale of chattels in consideration of the cancellation of a debt due from the vendor to the vendee. As we have said, nothing occurred except mutual promises, — words, merely,— and the question is whether that was such a payment as comes within the statute. The subject is treated in Browne, Stat. Frauds, §§ 342, 343. A New York case is quoted, where there was an agreement for novation, but the court held’ that it was not part payment, but merely an oral agreement to pay, which, like any other promise to pay, •was insufficient. Artcher v. Zeh, 5 Hill, 205. In Ely v. Ormsby, 12 Barb. 570, decided in 1850, this case was followed. The plaintiff bought a span of horses for $300, which amount was applied, but not indorsed, upon a mortgage which he held against the defendant, the same being on file. In a suit upon the contract it was held void under the statute. It was said that words alone would not answer the requirements of the statute; citing Artcher v. Zeh and Shindler v. Houston, hereinbefore referred to.' In 1865 the question arose again in the case of Brabin v. Hyde, 32 N. Y. 523, and it was there said, with the approval of the entire bench, that:

“This seems very plain. The section of the statute employs the words ‘purchase money.’ But it was said in the case of Artcher v. Zeh, 5 Hill, 200, that the statute ‘must be taken in its spirit to mean anything, or part of anything, given by way of consideration, which is money or money’s worth. The object was to have something pass between the parties besides mere words, — some symbol, like earnest money.’ The payment may be made in money or property, or in the discharge of an existing debt, in whole or in part, due from the vendor to the purchaser, or the extinguishment of or payment upon a promissory note held by the latter against the former. A mere agreement to apply the purchase money to either of these' objects would not be enough, because the contract would still rest in words, and nothing more. The agreement to paj1- the note or satisfy the debt must be consummated and carried into effect by an act which shall be obligatory upon the purchaser, and enable the vendor to enforce the contract of sale. The note should be delivered up and canceled; or, if the purchase money falls short of complete payment, it should be extinguished by an indorsement made upon it in writing which shall operate effectually as an extinguishment pro tanto. And if the purchase money is to be applied to pay an open account, in whole or in part, the creditor and purchaser should part with some written evidence of such application which shall bind him, and put it into the power of his debtor and vendor to enforce the contract. Without this, or something like this, the contract is a mere collection of words, and the statute evaded. ”

This language was quoted and followed in 1872 in the case of Walrath v. Richie, 5 Lans. 362; and Walrath v. Ingles, 64 Barb. 265, is in accord with the principle. See, also, Organ v. Stewart, 60 N. Y. 413. The case of Matthiessen, etc., Refining Co. v. McMahon’s Adm’r, 38 N. J. Law, 536, supports the same doctrine, following and approving Walker v. Nussey, 16 Mees. & W. 302. See, also, Caddis v. Leeson, 55 Ill. 83. There is a dictum in Walker v. Nussey that implies that, where the goods sold are to extinguish the debt, it may be considered a payment; but it is plainly at variance with the logic of the cases cited. Had it the force of authority, it would be out of harmony with the great majority of cases.

The testimony in this case not only fails to show that the plaintiff took possession of the stone, but shows that he declined to accept and receive them. The defendant testified that he told the plaintiff that he would move the stone for him, but he did not accept the offer; saying that he was going to Toledo, and that he would have them shipped there, or send for them himself. Nor does it show a payment taking the agreement out of the statute.

We are of the opinion that there was no question for the jury.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.