text:
    McLANE, SWIFT & CO. v. BOTSFORD ELEVATOR CO.
    1. Negligence — Proximate Cause — Elevator Companies.
    Failure by an elevator company to ship grain at the time agreed upon is not the proximate, but the remote, cause of the loss from its destruction by the accidental burning of the elevator after the time when it should have been shipped.
    3. Same.
    A defendant whose negligence is the remote, and not the proximate, cause of a loss, is not liable therefor.
    3. Same — Conversion.
    Where an elevator company contracted to clip oats in its elevator, and reship them in the same cars in which they were received, but, instead thereof, used the cars for other purposes, and kept the grain in the elevator, where it was accidentally burned, the company was not guilty of conversion, nor was its failure to reship in the same cars the proximate cause of the loss.
    Error to St. Clair; Tappan, J.
    Submitted April 6, 1904.
    (Docket No. 16.)
    Decided June 7, 1904.
    Case by McLane, Swift & Company against the Bots-ford Elevator Company to recover the value of certain grain destroyed while in defendant’s custody. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Phillips & Jenks, for appellant.

      Arthur B. Williams (Avery & Walsh, of counsel), for appellee.
   Carpenter, J.

In the fall of 1901, plaintiff shipped certain oats from Battle Creek, Mich., to the eastern cities. It arranged with defendant to clip these oats at its elevator in the city of Port Huron, and to reship them on their original bills of lading. While these oats were in defendant’s elevator, and before they were clipped, the building and the oats were accidentally destroyed by fire. It is affirmed by plaintiff, and denied by defendant, that, if the latter had faithfully performed its obligations, the oats would have been shipped from the elevator before the fire occurred. Assuming plaintiff’s claim to be sound, the ■question arises whether the failure of defendant to perform this obligation was a proximate cause of the loss of the oats. The trial court decided that it was, and this decision resulted in a verdict and judgment for the plaintiff.

We think this decision erroneous. Defendant’s neglect to clip and ship the oats had no direct relation to their destruction. It simply resulted in leaving them where they were burned by a fire for which defendant was not responsible. Defendant’s neglect was therefore, at most, the remote cause, while the accidental fire was the proximate cause, of plaintiff’s loss; and it is authoritatively settled, as we shall show, that the law does not look beyond the proximate cause. In Lewis v. Railway Co., 54 Mich. 55 (19 N. W. 744, 52 Am. Rep. 790), plaintiff, a passenger on defendant’s railway, was wrongfully carried past his station, and, on leaving the train, was misinformed as to his location. He spon discovered his whereabouts, and started home. He knew the neighborhood, and the location of certain cattle-guards and culverts; but he was deceived by his eyes, his foot slipped, and he fell into a culvert, and was seriously injured. It was held that this injury was not a proximate result of defendant’s wrong. In deciding the case, the court said (page 66):

“If lightning had chanced to strike the plaintiff at that place, the fault of the defendant, and its relation to the injury, would have been the same as now, and the injury could have been charged to the defendant with precisely the same reason as now. If the accidental discharge of a gun in the hands of some third person had wounded the plaintiff as he approached the cattle-guard, the connection of defendant’s wrong with the injury would have been precisely the same which appears here. But the proximate cause of injury in the one case would have been the act of God; in the other, inevitable accident, but not more plainly accident than was the proximate cause here. Back of that cause in this case were many others, all conducing to bring the plaintiff to the place of the danger and the injury; the act of the defendant was the last of a long sequence; but, as between the causes which precede the proximate cause, the law cannot select one, rather than any other, as that to which the final consequence shall be attributed, and it stops at the proximate cause, because to go back of it would be- to enter upon an investigation which would be-both endless and useless.”

No argument is necessary to prove that the principle applied in the foregoing case applies to the case at bar. See, also, Michigan Central R. Co. v. Burrows, 33 Mich. 6 Morrison v. Davis, 20 Pa. St. 171 (57 Am. Dec. 695); Denny v. Railroad Co., 13 Gray, 481 (74 Am. Dec. 645); Hoadley v. Transportation Co., 115 Mass. 304 (15 Am. Rep. 106); Railroad Co. v. Reeves, 10 Wall. 176 ¡ Daniels v. Ballantine, 23 Ohio St. 532 (13 Am. Rep. 264); and. Ashe v. De Rossett, 50 N. O. 299 (72 Am. Dec. 552). The last is a case almost precisely like that at bar.

It is true that in this case the property was lost while it was still in defendant’s custody, and in many of the cases above cited the loss did not occur until after it had left the custody of the defendant charged with negligence. Plaintiff insists that this distinction makes the rule declared in the above cases inapplicable. According to this argument, defendant would not be responsible for an accidental destruction of the goods after its negligent delay, provided they had been shipped, but would be responsible if they had not been. We are unable to see any sound basis for this distinction. Defendant’s wrong has precisely the same relation to the loss in the one case as in the other*. If authority is needed to show that this distinction is unsound, we refer to Hoadley v. Transportation Co. and. Ashe v. De Rossett, supra.

Many of the cases above cited were actions on the case,, like that brought by plaintiff, and therefore we cannot accept plaintiff’s contention that the rule does not apply to an action on the case.

There is authority for saying (see Michaels v. Railroad Co., 30 N. Y. 564 [86 Am. Dec. 415]; Read v. Spaulding, 30 N. Y. 630 [86 Am. Dec. 426]) that, if defendant had had the custody of these oats as a common carrier, it would have been responsible for their loss, under the circumstances disclosed by this record. There is no occasion in this case either to approve or to disapprove these decisions, though they are opposed to Morrison v. Davis, Denny v. Railroad Co., and Hoadley v. Transportation Co., supra, as well as to the reasoning of this, court in Michigan Central R. Co. v. Burrows, supra. They are based on the extraordinary obligation of a common carrier (an obligation not imposed upon the defendant), who is responsible for loss of goods in his custody unless excused by an act of Grod or of the public enemy. Their reasoning, if sound, has no application to the case at bar.

It is the claim of the plaintiff that some of the oats destroyed by fire were to have been reshipped in the same cars which brought them to defendant’s elevator; that defendant is responsible for the loss of these oats, because it used said cars for another purpose. Plaintiff’s right to-recover on this theory was denied by the trial judge. We-approve that decision. Under the foregoing reasoning, the use of the cars for another purpose, though a wrong to plaintiff, was not the proximate cause of the destruction of the oats. Neither can it be said that it was a conversion of the oats. A conversion of the oats can only arise from some improper dealing with the oats themselves. It cannot arise from an improper use of the cars of the railroad company, from which they have been taken.

It results from this reasoning that defendant was entitled to have a verdict directed in its favor.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    FLINT LAND CO. v. GODKIN.
    1. Equity Pleading — Quieting Title — Demurrer.
    A bill to quiet title by a claimant under a tax deed will not be dismissed on the ground that it fails to show that defendant is asserting a hostile claim, where it alleges that he has refused to sign a disclaimer, and the question is raised under a demurrer clause in an answer which points out no defect in the bill, but attacks the validity of complainant’s title.
    2. Tax Deeds — Collateral Attack — Assessment.
    In a suit by a claimant under a tax deed to quiet his title, the tax decree cannot be attacked on the ground that the assessment failed to except a railroad right of way across the land.
    3. Same — Notice to Redeem.
    Nor is it any defense that the statutory notice to redeem, served upon the owner, did not except such right of way.

      4. Same — Resale.
    Nor can defendant in such suit complain because a prior sale to the State was set aside by the auditor general without authority, and the land included in subsequent proceedings.
    Appeal from Iosco; Connine, J.
    Submitted April 8, 1904.
    (Docket No. 27.)

    Decided June 7, 1904.
    Bill by the Flint Land Company, Limited, against John Godkin and Samuel Anker, to quiet title. From a decree for complainant, defendant Godkin appeals.
    Affirmed.

      •McFarlan & Wilson, for complainant.

      Fatio Colt, for appellant.
   Hooker, J.

Complainant had tax deeds upon several parcels of land, viz.: On lot 3 for the taxes for the years 1897 and 1898, on lot 4 for 1898, on lots 5 and 6 for 1897 and 1898. Lots 3 and 4 had also been sold to the State for the taxes of 1891, 1892, and 1893, and the complainant acquired this title from the State. Defendant Anker had an old tax title upon the premises. John Godkin acquired the original title to the land in March, 1891. He did not redeem from these taxes after receiving thé statutory notice of the complainant’s purchase, and, after the expiration of the requisite period of six months, the complainant filed the bill in this cause to remove the cloud of defendants’ deeds, which were of record, and quiet its title, after vainly trying to obtain disclaimers from the defendants. The defendant Godkin answered, and claimed the benefit of a demurrer, and proofs were taken. The bill was taken as confessed as to Anker. No question has been raised in relation to him. Defendant Godkin has appealed from a decree in behalf of the complainant.

These lots were crossed by a railroad, which owned and had fenced a right of way 100 feet wide. Otherwise the lands were vacant. They were assessed without making an exception of the right of way aforesaid.

The questions argued by appellant’s counsel are that:

(1) The bill does not allege that defendant Godkin sets np a claim in opposition to complainant’s title.
(2) The assessment, not excluding the railroad right of way, was void for each year.
(3) The notices served were void, because the right of way of the railroad was not excluded from the descriptions referred to therein.
(4) The sale for the years 1891, 1892, and 1893 was void, for the reason that the auditor general had no authority to cancel the first sale to the State and sell .the same again.

The Demurrer. The bill is said to be demurrable for the reason that it fails to show that defendant Godkin is setting up a claim in opposition to the complainant’s title. The bill alleges that the defendants refused to sign a disclaimer, and Godkin, instead of filing a demurrer to' the bill, which, under Chancery Rule 9, must have set up the defects in the bill, contented himself with praying the benefit of a demurrer, without indicating any defect in the bill, in an answer which denies the complainant’s title, and prays that he (Godkin) be allowed to redeem. Under these circumstances, he should not be entitled to a dismissal of the bill upon this ground. See Blodgett v. Dwight, 38 Mich. 596; Woodworth v. Gorton, 46 Mich. 324 (9 N. W. 434); Cleland v. Casgrain, 92 Mich. 150 (52 N. W. 460).

Erroneous Assessment. It is undisputed that the assessments of the land should have excepted the right of way of the railroad company. Assuming, but not deciding, that this is so, the question arises here collaterally. These lands were sold upon a decree wherein it was judicially determined that they were subject to sale for a valid tax, the amount of which was therein ascertained and adjudged to be a valid lien. We have frequently said that such sales cannot be set aside upon proof of irregularities in assessments and other proceedings. Cole v. Shelp, 98 Mich. 56 (56 N. W. 1052); Kneeland v. Wood, 117 Mich. 174 (75 N. W. 461); Muirhead v. Sands, 111 Mich. 487 (69 N. W. 826); Peninsular Sav. Bank v. Ward, 118 Mich. 93 (76 N. W. 161, 79 N. W. 911); Haven v. Owen, 121 Mich. 51 (79 N. W. 938, 80 Am. St. Rep. 477); Cook v. Auditor General, 124 Mich. 430 (83 N. W. 96).

Was the notice served sufficient? In the statutory notice served, the right of way was not excepted. It is now said that this was not a proper notice. The notice was that the complainant had purchased all of the premises for an adjudged tax, and that, unless redeemed within six months, its title would become absolute. If redeemed, the law would have required a deed from it of all. We are of the opinion that the defendant has no cause of complaint in regard to the notice.

Sale for taxes of 1891, 1892, and 1898. It is said that the auditor general had no authority to set aside the decrees for 1891, 1892, and 1893, and that the subsequent decree and sale for these taxes are void. If this is true, the original sales to the State are not affected. In either case the complainant has the equitable, if not the legal, ■title of the State, and, at all events, there is nothing shown of which defendant can complain.

The decree is affirmed, with costs.

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


author: Grant, J.

text:
    WHITAKER v. STERLING.
    Sale — Delivery—Waiver—Breach oe Contract.
    Plaintiff contracted with defendants for the purchase of a boat, to be delivered at Detroit between the 1st and 15th of April, as he might determine. He did not notify them to deliver the boat between the 1st and 15th of April, but asked to be released from the contract, which request was refused, and an arrangement entered into whereby defendants were to assist him in selling it at their residence in Monroe. On April 26th he telegraphed them to bring the boat to Detroit, as parties wanted to look at it. Held, that defendants were not in default in not delivering the boat in response to the telegram, as the effect of the arrangement was to waive delivery at Detroit and accept delivery at Monroe, and it was apparent that the telegram did not relate to the original contract.
    Error to Wayne; Donovan, J.
    Submitted April 12, 1904.
    (Docket No. 45.)
    Decided June 7, 1904.

      Assumpsit by Charles F. Whitaker against William O. Sterling and William C. Sterling, Jr., copartners as William O. Sterling & Son, for the breach of a contract for the sale of a boat. From a judgment for plaintiff, defendants bring error.
    Reversed.
    On November 20, 1901, plaintiff and defendants made a contract by which defendants sold to the plaintiff a gas launch named “Restless;” price, $1,700; $500 to be paid upon the execution of the contract, and $1,200 to be paid on the delivery of the launch at Detroit, “between the 1st and 15th days of April, 1902; as said "Whitaker may determine, weather permitting.” “In default of the completion of the payment as above stipulated, Sterling & Son shall retain said sum of $500 as stipulated damages. ” The $500 was paid, and the defendants, as provided, insured the boat during the winter. On March 13, 1902, defendants wrote plaintiff, suggesting some additions to the boat. Plaintiff replied March 15th, ordering the additions. Plaintiff lived in Detroit, the defendants in Monroe.
    Plaintiff testified that early in April he went to Monroe, told defendants that he could not be in Detroit during the summer, that he would not be able to get any pleasure out of the boat, and wanted to make an arrangement for them to keep the boat and return the money he had paid. This defendants refused to do, and informed plaintiff that they should hold'him to the contract, but that they would assist him in showing off and selling the boat. Plaintiff' advertised the boat for sale in the Detroit newspapers. Plaintiff said he would refer any one answering the advertisement to the defendants.
    Defendants’ version of this conversation is different from that of plaintiff’s substantially in this: That William C. Sterling, Jr., with whom the conversation was had, testified that plaintiff told him he could not take the boat on account of losses, and that plaintiff told him he did not want the boat at Detroit, as he could not pay for it; that he would try and sell it, and, if he succeeded, ho would deliver it where wanted. The only subsequent communications between the parties were by letter and telegram, except that William C. Sterling testified that he talked with the plaintiff over the telephone on the 14th of April, when plaintiff asked him to sell the boat for him, and fixed the price. On the same day, defendants sent a telegram to plaintiff, saying: “Receiving letters. You do not give price to sell for you.”

      On April 9th, defendants wrote plaintiff, stating that they were getting letters in response to his advertisement in the Detroit papers; that they had not answered any of them, as they had received no written authority from him. to quote price. Defendants also said in this letter that it would be impossible for them to take the boat off his hands, as they had disposed of their boathouse at a great sacrifice, and made other arrangements for the summer at considerable expensé; and the letter closed by saying, “We hope you will advise us in full by return mail just how you want us to act for you.” The record contains no re^ ply to this letter, and no other communication until the telegram of April 14th.
    On April 17th, defendants again wrote plaintiff, saying that they had offered the boat for sale, in accordance with his instructions, to one or two parties who had been to see it, mentioning one Smith. Plaintiff replied to this by letter, which is undated, and the date is not shown in the record. That letter is as follows:
    “Please let me know by return mail when you will have the boat ready to show people. Mr. Smith, of Peter Smith & Sons, has promised me that he would go down and take a ride in the boat, and look her over, when you get her ready. Have also got one other party, maybe two, who will go down the same way, about Thursday or Friday of this week, if you can get her in shape by that time. I would not care to bring them until the boat is in first-class order. If you cannot get her ready this week, Tuesday of next week will do. Would prefer to have them go next week Tuesday.
    “I think that, if we could bring the boat to Detroit, I could interest some people who would buy her, without a doubt. It is rather awkward to have to go to Monroe to look'her over, whereas if we had the boat at Detroit, where it could be seen in an hour or two, I think I could sell her within a couple of weeks. If this meets with your approval, let me know when you write, and we can bring her up to Detroit, and save, Mr. Smith and the other people having to go down there to look her over. I have not any doubt but what I can make a sale of her within the next couple of weeks if I have her here in Detroit. I can get a first-class man to run the engine, so that you can rest assured that she will be in good hands. When you write, let me know about this. An . immediate answer will greatly oblige.”
    In reply to this, on April 24th, defendants wrote:
    “ The Restless has been in condition to deliver for some time. * * * We have made arrangements for another boat, and expect you to make the final payment within a short time. We will gladly show the boat to parties you wish to send here, and run her for them; but, as to our taking her to Detroit for your engineer to exhibit to parties on the Detroit river, you could hardly expect us to do this until you have paid for her.”
    On April 26th, plaintiff sent the following telegram to defendants:
    “Please have boat Restless foot Woodward avenue, Detroit, Monday, 1 o’clock. Parties want to look at her that time.”
    That was Saturday. Defendants were away from home, and the telegram was not received until the following day, Sunday, when William C. Sterling, Jr., sent a telegram to plaintiff to call him up by phone. To this defendants received no reply. On Monday, the 28th, defendants telegraphed plaintiff, “ Will you be here this or tomorrow noon to try boat?” April 28th, plaintiff wrote defendants as follows:
    “I have waited all this afternoon for you to deliver the boat Restless to me here at Detroit as per our contract, and in compliance with my instructions sent you by wire Saturday. You have neglected to comply with your part of the contract, and I hereby notify you that I do not want the boat, and request the return of the $500 deposited with you. An immediate answer will greatly oblige.”
    To this defendants replied :
    “Yours of the 28th received. We are ready to deliver boat Restless if paid for.f We decline, however, and have heretofore refused, to have the boat conveyed to Detroit, or elsewhere away from Monroe, for purpose of exhibition to the supposed purchasers from you. As we have written you before, we will do everything within reason to show the boat at Monroe for you. We shall hold you to the fulfillment of the contract.”
    Plaintiff brought this suit to recover damages for breach of the contract, and recovered a verdict and judgment for §480, evidently being $500 advance payment, less cost of the additions which the defendants had made in accordance with the plaintiff’s instructions.

      George M. Landon, for appellants.

      A. B. Hall, for appellee.
   Grant, J.

(after stating the facts). Under the contract, it was the duty of the plaintiff to notify the defendants when he desired the boat delivered at Detroit between the 1st and 15th of April. He did not notify them. On the contrary, he chose to leave the boat in the possession of the defendants, in the expectation that he would sell it, and have it delivered at the place where his vendee might desire. The defendants retained the possession of the boat •at Monroe, at the express request of the plaintiff, for sale. There was no agreement between the parties to extend the time of delivery at Detroit by the defendants to the plaintiff beyond the 15th of April. The effect of the arrangement was to waive delivery at Detroit and accept delivery .at Monroe. Defendants were willing to accommodate plaintiff by retaining the possession of the boat for him, taking care of it, and assisting him in selling it, and did all in their power to secure a sale.

The telegram of the 26th, requesting defendants to have boat at foot of Woodward avenue, Detroit, on Monday, as •parties wanted to look at her at that time, was not a notice under the terms of the contract, but must be construed with reference to the correspondence and arrangement under which the defendants, as an accommodation, promised to keep the boat at Monroe, and assist the plaintiff in selling her. We think it manifest that the plaintiff did not intend to pay for the boat at that time; neither did he send that telegram with any intention that it was the notification required by the terms of the contract, but only for the purpose of showing the boat to expected buyers. He was asked:

Q. Did you ever offer, after the 15th of April, to pay for the boat ?

“A. I made a demand for the boat to be brought up to Detroit after my conversation and correspondence.”

The answer was evasive, but clearly shows that-he sent the telegram with reference to the arrangement for keeping the boat at Monroe for sale according to the correspondence and conversations. The defendants so understood it. Plaintiff is now seeking to take advantage of the accommodation accorded to him by the defendants. Defendants are not acting unconscionably.' Their damages in various ways have been considerable. Plaintiff knew all the time that defendants were insisting upon the letter of the contract, and all their legal rights under it. If there has been any unfair treatment, it is by the plaintiff, and not by the defendants. The defendants were not guilty of any breach of contract, and were entitled to all the rights which the contract gave them.

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Montgomery, J.

text:
    MOHR HARDWARE CO. v. DUBEY.
    1. Pleading — Variance—Waiver.
    A defendant in an action for damages for the breach of an ex-ecutory contract, who pleaded the general issue to a declaration on the common counts in assumpsit and on a written order for the purchase of goods, cannot, after the proofs have been admitted without specific objection, insist upon a directed verdict on the ground that the evidence fails to support the declaration.

      '% Sale — Contracts—Mutuality.
    Where plaintiff orally agreed to sell 70 rods of wire fence at 58 cents per rod, and defendant agreed in writing to accept the fence at the price named, the contract was not void for want of mutuality.
    3. Same — Breach—Damages.
    Where a purchaser of goods refuses to accept the same, the measure of damages is the difference between the contract price and the market value at the time agreed upon for delivery.
    Error to Bay; Shepard, J.
    Submitted June 3, 1903.
    (Docket No. 14.)
    Decided June 25, 1904.

      Assumpsit by the Mohr Hardware Company against ■Joseph L. Dubey for the breach of a contract of purchase. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Loranger & Flynn, for appellant.

      Lee F. Joslyn, for appellee.
   Montgomery, J.

This is an action to recover damages for the breach of an executory contract. Plaintiff’s testimony tended to show that it agreed to sell to defendant the wire for 70 rods of fence at the price of 58 cents per .rod, to be taken at plaintiff’s store, and paid for on or before April 1, 1903. Plaintiff also agreed to stretch the wire when the defendant had placed posts and braces as directed. Before the wire was delivered, defendant countermanded his order, and plaintiff thereupon brought this suit.

The case was brought in justice’s court. The return of the justice states that the plaintiff declared orally on the common counts, and “especially on an order herewith filed as a part of plaintiff’s declaration,” and claimed damages of $100. After the proofs were admitted without objection, defendant’s counsel asked that a verdict be directed on the ground that the evidence failed to support the declaration. After pleading issuably, and permitting-the evidence to come in without specific objection on this ground, we think the defendant ought not to be permitted to assert the insufficiency of this declaration. The defendant could not have been taken by surprise. He knew it-was sought to fix a liability upon him, based upon a breach of a specific contract made a part of the declaration. We think the case in this respect falls fairly within the cases cited by plaintiff’s counsel. Hartford v. Holmes, 3 Mich. 460; Wilcox v. Railroad Co., 43 Mich. 584 (5. N. W. 1003).

We think the objection that the contract is void for want of mutuality is without force. The agreement of' the defendant to accept this wire, and to accept the same at a given price, was in writing, and over his signature.

The only question presenting any difficulty is that relating to the measure of damages. The theory of the plaintiff appears to have been that it was entitled to recover the profits which it would have made on the sale. Evidence of the wholesale value of the wire was given, and this appears to have been the same at the time of the contract and at the time agreed upon for delivery. No evidence was given of any resale of the wire in question, or of the price for which it could have been sold at the place of agreed delivery. We discover no consideration which can take the case out of the general rule that the measure of damages. in case of the breach of an executory contract of sale by a refusal of the purchaser to accept and pay for the goods is the difference between the agreed price and the market value at the time agreed upon for delivery. 3 Suth. Dam. (3d Ed.) § 647, and cases cited. This rule seems to be based upon the view that it is the duty of the party suffering damages by the breach of the contract to make himself whole, if he may, and that the duty in such a case as the present is to seek a market for the goods refused, and, if they can be sold at the same price as that agreed upon, only nominal damages have been suffered. It is true that where the contract is for the manufacture of goods, and the order is countermanded, a different rule is sometimes-applied. For a case noting the distinction, see Silberstein v. News-Tribune Co., 68 Minn. 430 (71 N. W. 622). In that case the court said, in noting the distinction:

“Where the material to be furnished has a market value, and the amount and value of the necessary labor to fit it for the performance of the contract are reasonably certain, and nothing has been done by the plaintiff in performance of his contract on account of its breach by the defendant, the rule for ascertaining the cost of performance suggested by the defendant in this case would seem to be the correct and probably the exclusive one.”

The rule there contended for by defendant’s counsel was the rule first above adverted to.

The circuit judge did not so limit the recovery in the present case. For this error the judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    NOBLE v. LAIDLAW.
    Fraudulent Conveyances — Evidence—Sufficiency .
    A conveyance by a debtor to his brother of all of his property in consideration of the assumption of a mortgage then on the land and the giving back of a mortgage for the balance of the purchase price was held fraudulent as to a judgment creditor of the grantor, where it also appeared that the debtor considered the judgment inequitable and was attempting to evade payment, that the papers were left with the scrivener, that the deed was not recorded for some time and the mortgage never recorded, and that the grantor soon left the county.
    Appeal from Sanilac; Beach, J.
    Submitted February 23, 1904.
    (Docket No. 100.)
    Decided June 25, 1904.
    Bill by Bostwick R. Noble against William J. Laidlaw and David E. Laidlaw in aid of execution. There was a decree for complainant, and defendant David E. Laidlaw appealed. Complainant died pending the appeal, and the cause was revived in the names of Charles Noble and Charles F. Lawson, his executors.
    Affirmed.

      G. F. Gates, J. A. Rapley, and E. H. Drake, for complainants.

      J. S. Grandell, for appellant.
   Montgomery, J.

This is a case of a bill filed in aid of an execution. The circuit judge granted the relief prayed, and the defendant David E. Laidlaw appeals.

The bill avers an indebtedness of William J. Laidlaw, represented by a judgment amounting to $170.42 and $2.80 costs, and the transfer by him to defendant David of a farm of 98 acres, worth $4,000, with the sole purpose of defrauding complainant. The bill also avers that defendant David was without responsibility, and that execution against William J. Laidlaw had been levied upon the land in question. The answer admits the transfer of the farm, but avers that defendant David purchased it in good faith ■at the price of $2,000, which was paid by assuming a mortgage outstanding against the property of $400, and by giving back a mortgage for the remainder of the purchase price; i. e., $1,600.

The two Laidlaws are brothers. The papers were drawn by a brother-in-law. The mortgage was never recorded. The evidence fairly shows that the farm in question comprised substantially all of the debtor’s property. It crops out that he regarded the claim of complainant as inequitable, and the inference that he was attempting to get under cover'is a fair one. The question of the participation of David in this design is more doubtful, but we think the circumstances were such as to fairly justify the finding of the circuit judge on this point also. The relationship of the parties, the manner of execution of the notes, the fact that the papers were left with the scrivener, that the deed was not recorded for some time, that not a dollar changed hands at the time, that the brother William J. soon left the county, all tend strongly to establish that the purpose of the grantor was not wholly unknown to defendant David.

The decree is affirmed, with costs.

The other Justices concurred.


author: Carpenter, J.

text:
    ADKIN v. PILLEN.
    1. Criminal Law — Malicious Injury — Dwelling of Another— Husband and Wife.
    Where, at the time a respondent did certain acts injurious to a. dwelling house, the title to the house was in his wife, it will be presumed, as against the holder of a tax lien, that his acts were authorized by his wife, and therefore he was not guilty of willfully and maliciously injuring the house of another.
    2. Tax Sales — Redemption—Ownership.
    Although it is provided by section 3895, 1 Comp. Laws, that a-tax deed shall convey an absolute title and be conclusive evidence of title in fee, the land sold, even where the State had acquired absolute ownership by previous tax sales, is subject to redemption under Act No. 229, Pub. Acts 1897, and, until the period of redemption expires, the original owner is the owner of the property.
    3. Malicious Prosecution — Advice of Counsel.
    The advice of an attorney who was directly interested in the subject-matter of the controversy is no defense to an action for malicious prosecution.
    4. Same — Instructions—Probable Cause — Malice.
    A charge that a defendant in a suit for malicious prosecution, in order to avail himself of the defense of advice of counsel, must have acted upon it fairly and honestly, followed by a ,. statement that “ he has got to prosecute with the knowledge that he obtains from counsel, without malice, or else it is no protection,” is not equivalent to a charge that defendant is responsible if he acted maliciously, although he had probable cause.
    5. Appeal — Evidence—Grounds of Admissibility.
    It cannot be urged on appeal that testimony excluded by the trial judge was admissible for a purpose other than that brought to his attention on the trial.
    Error to Muskegon; Russell, J.
    Submitted February 2, 1904.
    (Docket No. 61.)
    Decided June 25, 1904.
    Case by George Adkin against Lorenzo D. Pillen for malicious prosecution. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Clark, Jones & Bryant, for appellant.

      Nims, Hoyt, Erwin, Sessions & Vanderwerp, for appellee.
   Carpenter, J.

Plaintiff’s wife owned certain property in the city of Muskegon. She omitted to pay the taxes assessed against the same for the years 1892 to 1898, inclusive, and on the 19th of December, 1899, defendant acquired State tax deeds of the property. The time to obtain a reconveyance under Act No. 229, Pub. Acts 189?, expired July 5, 1900. In June, 1900, a few days before the expiration of this time, plaintiff removed from the house some doors, windows, door frames, and casings, and injured the property. Defendant thereupon instituted a criminal prosecution, charging plaintiff with willfully and maliciously injuring his dwelling house, contrary to section 11584, 3 Comp. Laws.' These proceedings were dismissed on the ground that defendant had not such an interest in the property as would authorize him to institute the prosecution. Thereupon this suit for malicious prosecution was instituted. It resulted in the court below in a verdict and judgment for plaintiff. We are. asked to reverse that judgment for several reasons.

It is insisted that defendant was entitled to a verdict on the ground that the evidence shows that plaintiff was-actually guilty of the offense for which he was prosecuted.. To commit that offense, one must “ willfully and maliciously destroy or injure any house, barn, or other building of another, or the appurtenances thereof.” Section 11584, 3 Comp. Laws. It is to be inferred, and it is assumed, that what plaintiff did was authorized by his wife, who owned the fee. He was therefore not guilty of a crime under this statute, unless at the time of the injury defendant owned the property.

Let us ascertain the character of defendant’s ownership. It is to be inferred that some of the tax titles purchased by defendant had become absolute in the State before Act No. 229 of the Public Acts of 1897- — the act which gives the owners the right of redemption — took effect. Defendant acquired his deeds under section 72 of the general tax law (section 3895, 1 Comp. Laws) enacted in 1893. By that section it is provided:

‘ ‘ Such deeds shall convey an absolute title to the land sold, and be conclusive evidence of title in fee in the grantee, subject, however, to all taxes assessed and levied on such lands subsequent to the taxes for which the same was bid off.”

Notwithstanding the fact that the State had acquired the absolute ownership of this land, and notwithstanding the language above quoted, the title acquired by defendant was, by Act No. 229 of the Public Acts of 1897, subject to redemption for a period of six months; and during this tiine defendant was not entitled to possession of the land. We have recently held (see Auditor General v. Sherman, ante, 157 [98 N. W. 995]) that, notwithstanding the language of section 72, above quoted, the title thereby conveyed is subject to sale for prior taxes under certain conditions, by virtue of Act No. 169 of the Public Acts of 1899. It is equally clear that we are bound to hold that, by Act No. 229 of the Public Acts of 1897, said title acquired under section 72 did not become absolute — and this is true whether that title had or had not become absolute in the State before sale — until the period for redemption had expired. Until the expiration of this period, during which the original owner has the sole right of possession and the right to redeem from outstanding tax titles, such owner, and not the owner of said tax titles, which may or may not become absolute, is the owner of the property. It follows, therefore, that plaintiff did not commit the crime for which he was prosecuted.

It appears by the testimony in the case that defendant, before instituting the criminal prosecution, stated the facts of the case to his counsel, Mr.. Jones, and acted under his advice in instituting the prosecution. Respecting this, the court charged:

“ It is claimed here — you have heard the evidence on that point- — that Mr. Jones was interested in this project, the purchasing of this lot; * * * that he was going to receive an interest out of the proceeds, — that is to say, that he had an interest in the project, under certain circumstances, of 45 per cent. Now, if you find that is true, gentlemen, that eliminates Mr. Jones’ advice from this controversy. ”

It is the claim of the defendant, not only that the court erred in the foregoing charge, but that defendant was entitled to a direction in his favor because he acted under the advice of Mr. Jones. We are bound to say (and in saying this we overrule defendant’s contention to the contrary) that the testimony warranted the jury in saying that Mr. Jones, the attorney consulted by defendant, had an interest in the tax deed to the land in question. The testimony warrants the inference that Mr. Jones was entitled to 45 per cent, of the net proceeds of this venture. It is our judgment that, on principle and authority, his advice under these circumstances did not afford protection. It is a complete defense to a suit for malicious prosecution that defendant actually submitted to his counsel all the facts, and bona fide acted on his advice. Authorities are not agreed as to the ground upon which this holding proceeds. See Le Clear v. Perkins, 103 Mich. 131 (61 N. W. 357, 26 L. R. A. 627). Some authorities hold that advice of counsel tends to establish probable cause, and also to negative malice. See Bartlett v. Hawley, 38 Minn. 310 (37 N. W. 580); Merchant v. Pielke, 10 N. Dak. 52 (84 N. W. 574). See, also, note by Prof. Tiedeman, Sharpe v. Johnstone, 21 Amer. Law Reg. (N. S.) 582. See, also, opinion of Chief Justice Sherwood in Thurston v. Wright, 77 Mich. 100 (43 N. W. 860). Some hold that it tends to negative malice. See Brewer v. Jacobs, (C. C.) 22 Fed. 217; Stanton v. Hart, 27 Mich. 539. Others hold that it tends to establish probable cause. See Le Clear v. Perkins, supra; Poupard v. Dumas, 105 Mich. 326 (63 N. W. 301); Pawlowski v. Jenks, 115 Mich. 275 (73 N. W. 238); Stewart v. Sonneborn, 98 U. S. 187.

On whatever ground the defense of advice of counsel rests, it affords the defendant a defense which otherwise he does not have. We think it would not be unfair to say that it often, if not always, affords a new defense when the defense of probable cause and of absence of malice have failed. To illustrate: Oases may arise — indeed, this is one — in which, if this advice of counsel were lacking, this court would not hesitate to say, as a matter of law, that there was no probable cause (see Rankin v. Crane, 104 Mich. 6 [61 N. W. 1007]; Fine v. Navarre, 104 Mich. 93 [62 N. W. 142]; Rogers v. Olds, 117 Mich. 368 [75 N. W. 933]), and we would also say that, from this want of probable cause, the jury could infer malice (see Gould v. Gregory, 133 Mich. 382 [95 N. W. 414], and authorities therein cited). The fact, however, that defendant submitted his case to an attorney, and that the attorney, under a mistake of law, gave improper advice, which he in good faith followed, creates a defense which otherwise he did not have. It is unfair to the other party in interest that defendant, or any one similarly situated, should shield himself by advice from an associate in the very enterprise which it is claimed plaintiff injured. It is no hardship to require a complainant in a criminal case to be advised respecting such matters by one who-is not biased by his own personal and pecuniary interest. Accordingly, it has been held:

‘'But when the attorney is directly interested in the subject-matter of the suit, and his interest is known to the client, the client has no right to presume that he will give him an unbiased opinion; and if he takes it, and acts upon it, and it turns out to be erroneous, it will afford him no justification. The client knows that he has not consulted a disinterested and unbiased attorney. Neither a judge nor a juror thus interested would be competent to sit in the trial of the case, and, if either should act, it would be good ground for a new trial, although he acted honestly. Why should the opinion of an attorney thus interested be entitled to greater respect than the decision of the judge? It might as well be held that, when an attorney is defendant in an action for malicious prosecution, he may justify on the ground of probable cause by satisfying the jury that, as a lawyer, he in good faith believed he had a good cause of action, although in fact he had none. We know of no authority to sustain such a proposition.” White v. Carr, 71 Me. 555 (36 Am. Rep. 353).

See, also, Merchant v. Pielke, 10 N. Dak. 48 (84 N. W. 574); Bartlett v. Hawley, 38 Minn. 308 (37 N. W. 580).

Complaint is made of this portion of the court’s charge:

“A man may be too honest, as well as not honest enough, in the commencement of litigation; and it is necessary, before this defendant here can have any protection at all by reason of the advice of counsel, that he must act upon that fairly and honestly. He cannot use that for the purpose of covering, or anything of that kind. That won’t do. But he has got to be fair, and he has got to be honest-. He has got to prosecute with knowledge that he obtains from the counsel, without malice, or else it is no protection whatever.”

After defendant had obtained the advice of Mr. Jones, heretofore referred to, and before the prosecution was instituted, he was advised by the prosecuting attorney, and by other reputable lawyers, that the prosecution could not be maintained. If from these facts the jury found, as -they might, that defendant did not believe the advice of his counsel to be sound; that he used that advice as a cover to prosecute a man whom he believed innocent; in short, that he did not bona fide act on that advice, — then such advice would afford no protection. See Harris v. Woodford, 98 Mich. 147 (57 N. W. 96); Poupard v. Dumas, 105 Mich. 326 (63 N. W. 301). And this, in substance, is what the court did charge, in the language now under consideration. We do not think that the closing sentence of this charge, “ He has got to prosecute with knowledge that he obtains from the counsel, without malice, or else it is no protection whatever, ” instructed the jury, contrary to Hamilton v. Smith, 39 Mich. 222, and Smith v. Austin, 49 Mich. 289 (13 N. W. 593), that the fact that defendant acted maliciously would make him responsible, even though he had probable cause. We think this language, fairly construed, in connection with what had preceded it, merely indicates that defendant, to be protected by advice of counsel, must act on that advice in good faith; and this, as we have already stated, was correct.

Defendant, on the cross-examination of the plaintiff, was denied the right to show that plaintiff knew that the taxes on the property had been unpaid for years, and that it was sold to the State, and that his injury to the property was done wantonly. It is contended that this testimony was admissible because it tended to lessen plaintiff’s damages. See Sears v. Hathaway, 12 Cal. 277. We do not think that defendant is in a position to urge the admissibility of this testimony on that ground. When the testimony was offered and excluded in the trial court, defendant’s counsel made no suggestion that the testimony bore upon the measure of damages, and it is evident that the trial judge did not determine its admissibility from that point of view. When the first item of this testimony was-offered, defendant’s counsel, who was called upon by the court to state his purpose, said:

“I propose to show that he [plaintiff] wasn’t charged with this offense maliciously, and to show it (if I can, I have a right to) by this witness, by showing the facts and circumstances surrounding this transaction, to show that he had ceased to be an owner of this property.”

This would give the trial judge a right to suppose — and I think it inferable from the record that he did suppose— that this testimony wafe offered as having a bearing upon the cause of action. From that point of view, the trial judge correctly excluded it. If, from another point of view, the testimony was admissible, — that is, if it had a bearing upon the question of damages, — it was the duty of defendant’s counsel to bring that to the attention of the court. Having failed to do that, he cannot complain of the court’s ruling. It cannot be said that a trial judge errs when he decides a question correctly from the point of view he is encouraged to take by appellant’s counsel.

No other complaint is made which demands discussion.

The judgment is affirmed.

The other Justices concurred.


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    HOFFMAN v. AUDITOR GENERAL.
    1. Tax Sales — Duty oe Purchaser — State Tax Lands.
    One purchasing land at a tax sale is obliged to purchase the same from the State tax land list, and pay the taxes, interest, and charges remaining unpaid thereon, for all years for which such land is held as State tax land. 1 Comp. Laws, § 8893.
    2. Same — Purchase and Payment.
    A purchase of State tax land by the original owner is in effect a payment and redemption.
    3. Same — Auditor General — Cancellation oe Sale — Mandamus.
    The original owner of land purchased the same at a tax sale conducted by a deputy county treasurer, and applied to him “to pay, redeem, or purchase all the taxes then remaining a lien on the land,” and was informed by him that the land was not held for the taxes of any other years, though it was in fact then held as State tax land, and subject to sale. Subsequently the auditor general canceled the purchase as void because such owner had not purchased also from the State tax land list, and. sold the land to another. Held, that mandamus would lie to compel the auditor to cancel the last sale and permit the owner to redeem. 1 Comp. Laws, § 3921. Schulte v. Auditor General, 131 Mich. 676, distinguished.

      4. Same — Deeds—Exception from Warranty — Notice.
    The fact that the warranty clause in the deed by which such original owner acquired his title expressly excepted all taxes and tax claims subsequent to a certain year, prior to that for which the land was sold to the State, was not conclusive against his right to such relief.

      Mandamus by Frank Hoffman to compel Perry F. Powers, auditor general, to cancel a tax sale and permit relator to redeem.
    Submitted February 2, 1904.
    (Calendar No. 20,230.)
    Writ granted June 25, 1904.

      Hovey & Stockwell, for relator.

      Charles A. Blair, Attorney General (McFarlan & Wilson, of counsel), for respondent.
   Carpenter, J.

Relator became the owner of the land in controversy in 1900. He acquired his title by warranty deed, and the covenants of warranty therein excepted “the taxes of 1895 and subsequent years, and all claims arising therefrom.” At this time -the lands were delinquent for the taxes of 1895, 1896, 1897, 1898, and 1899. The land was sold for the nonpayment of the taxes of 1897 and 1898, and the State acquired an absolute title thereunder in May, 1901, and May, 1902, respectively.

The land was advertised for sale for the taxes of 1899, and .for the reforeclosed taxes of 1896, at the May sale in 1902. Relator attended this sale and bid in the lands for those taxes, and then applied to the deputy county treasurer conducting the sale “to pay, redeem, or purchase all the taxes then remaining a lien on the land.” The said deputy county treasurer made out and delivered to relator tax certificates of sale for the years 1899 and 1896, and informed him that said lands were not held for any other years, though at that time the land was held as State tax land, subject to purchase, for the taxes of 1897 and 1898, above described.

Subsequently the Flint Land Company, Limited, applied to respondent to purchase these lands, and deposited sufficient money to pay the taxes for 1895, 1896, 1897, 1898, and 1899. Respondent thereupon canceled the purchase made by relator on the ground that his purchase was void because he had not at the same time purchased from the State tax land list for the taxes of 1897 and 1898, and deeded the land to said Flint Land Company, Limited. Relator thereupon presented a petition to respondent, setting forth the foregoing facts, tendered the amount due for the payment of the taxes of 1897 and 1898, demanded a vacation of the order canceling his purchase, a cancellation of the conveyance to the Flint Land Company, Limited, and permission to purchase and pay the taxes for all other years charged against the land. Respondent refused to comply with this request, and this mandamus is sought to compel such compliance.

Relator’s right to relief depends upon the proper construction of subdivision 4 of section 98 of the tax law (1 Comp. Laws, § 3921). This provision authorizes the auditor general to issue a certificate of error when “a certificate that no taxes were charged against said lands has been given by the proper officer within the time limited by law for the payment or redemption thereof.” It is contended by respondent that relator does not bring himself within this provision; that the deputy county treasurer was not the “proper officer” therein described; and that “the time limited by law for the payment or redemption ” from said taxes had long before elapsed. Let us consider these contentions.

Relator, having bid in the land for the taxes of 1896 and 1899, was obligated by law (section 70 of the tax law; 1 Comp. Laws, § 3893) to “become the purchaser from the State tax land list, and pay the taxes, interest, and charges remaining unpaid thereon,” for all years for which such land was held as State tax land. See, also, section 80 (1 Comp. Laws, § 3903). And it was likewise the duty of the deputy county treasurer conducting the sale to sell such tax interests to relator. While this transfer would have been, in form, a purchase by relator of the State’s interest, it would, according to elementary principles, because relator owned the land, have been, in effect, a payment and redemption. Connecticut Mut. Life-Ins. Co. v. Bulte, 45 Mich. 113 (7 N. W. 707). It follows that relator had a right to pay and redeem from these taxes at the time he was prevented from acquiring them by the officer who denied their existence, and that said officer was charged with the duty of making a sale to him which would effectuate that redemption. It is true,, relator’s right to pay and redeem, under this reasoning, had just come into existence, and the time limited by law to redeem from the original sale had expired. But we should be giving this statute a very narrow construction if we should say it did not apply to all cases where one has a right by law to pay and redeem. And the statute, we have held, is to receive not a narrow, but a broad, construction. In Kneeland v. Wood, 117 Mich. 176 (75 N. W. 462), this court said:

“We think the provisions of this section should receive a liberal construction, to the end that a taxpayer justly entitled to relief may not be cut off from all remedy. Hand v. Auditor General, 112 Mich. 597 (71 N. W. 160). It is held in numerous cases that if a landowner in good faith applies to the proper officer for the purpose of paying his taxes, and is prevented by the mistake, wrong, or fault of the officer, such attempt to pay is equivalent to payment.”

See, also, Wood v. Bigelow, 115 Mich. 123 (73 N. W. 129); Hough v. Auditor General, 116 Mich. 663 (74 N. W. 1045); Kneeland v. Hyman, 118 Mich. 56 (76 N. W. 127).

It was therefore the duty of the auditor general to comply with the relator’s request, and mandamus is the proper remedy to enforce that duty. Hubbard v. Auditor General, 120 Mich. 505 (79 N. W. 979).

This case is distinguished from Schulte v. Auditor General, 131 Mich. 676 (92 N. W. 417), relied on by respondent, by this important circumstance: There the official applied to — the county treasurer — had no authority to receive payment of the tax, while here he had such authority.

It is urged that relator was not misled by what the ■deputy county treasurer told him, because he was informed by his deed that these taxes were unpaid. We cannot accept this argument. While relator’s deed did not covenant that the taxes were paid, it certainly did not inform him that they were unpaid. Notwithstanding the exception in the deed, we are bound to accept the averment of the petition that relator believed the information communicated by the deputy county treasurer.

It is only proper that we should say that respondent’s answer has not specifically admitted many statements in relator’s petition, which, under the rule, we assume to be true because they are not denied.

A mandamus will be issued as prayed, with costs against the Flint Land Company, Limited, who, it appears, has defended this suit.

Moore, O. J., Montgomerv and Hooker, JJ., conourred. Grant, J., did not sit.


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    PEOPLE v. GARDNER.
    1. Constitutional Law — Jury Commission — Equal Protection of Laws.
    Act No. 204, Pub. Acts 1893, providing for a board of jury commissioners for Wayne county, to be appointed by the governor of the State, authorized to select and return the lists of petit jurors for service in the courts of record in said county, does not conflict with the fourteenth amendment to the Federal Constitution, providing that no State shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

      3. Courts — Jury as Judges of Law and Pacts.
    The jury in the recorder’s court of Detroit; in a trial for the violation of an ordinance, are not judges of both the law and the facts.
    3. Constitutional Law — Municipal Ordinances — Disposition of Garbage — Property Rights — Nuisances.
    An ordinance requiring occupants of dwellings and hotels to place in garbage boxes the refuse of animal, fruit, or vegetable matter from their tables, whence it shall be removed by a person under contract with the city, and prohibiting all other persons from carrying or transporting such garbage through the streets, is not invalid on the ground that it takes private property without compensation.

      Certiorari to recorder’s court of Detroit; Murphy, J.
    Submitted February 24, 1904.
    (Docket No. 101.)
    Decided June 25, 1904.
    James Gardner was convicted of violating a municipal ordinance relative to the disposition of garbage.
    Affirmed.

      Clark, Jones & Bryant (Fred A. Baker, of counsel),, for appellant.

      T. JE. Tarsney and Corliss, Andrus, Leete & Joslyn,, for the people.
   Montgomery, J.

The defendant was convicted of a. violation of an ordinance of the city of Detroit relative to the disposition of garbage. The ordinance requires all occupants of dwellings, hotels, etc., to provide suitable water-tight boxes in which all garbage and refuse matter shall be placed, provides that the city may enter into a contract for the disposition of such garbage, makes it the duty of such contractor to remove all garbage in accordance with certain expressed regulations, and prohibits all others from carrying or transporting such garbage through the streets. The ordinance defines “garbage” as the refuse of animal, fruit, or vegetable matter that attends the preparation, use, cooking, dealing in, or storing of meat, fish, fowl, fruit, or vegetables, including dead animals and condemned foods found within the city. The defendant dbes not deny having gathered and transported the refuse from the tables of hotels, which refuse answers the description contained in the ordinance, but shows that he was acting for the purchaser of such material,- who-bought the same from the hotel proprietors; that such refuse had a money value as food for swine; and contends that the ordinance in question is not only unreasonable, but unconstitutional, as an attempt to take private property without compensation. The trial judge declared the ordinance valid, and, as the facts were not in dispute, directed a verdict of guilty. Defendant brings the case here for review on questions of law.

A challenge to the array of jurors was made, on the ground that the act creating the board of jury commissioners of Wayne county is in conflict with the fourteenth amendment to the Federal Constitution. This law was held constitutional in People v. Harding, 53. Mich. 48, 481 (18 N. W. 555, 19 N. W. 155, 51 Am. Rep. 95), and, while the objection that the provisions of the statute violate the fourteenth amendment was not there made, yet the reasoning in the case goes far towards answering that contention as it is now made. We are agreed that the contention cannot be sustained.

It was also contended that the jury in this class of cases are judges of both the law and facts, and that the recorder, in instructing the jury as to the law, invaded the province of the jury. It is not claimed that any provision of statute can be pointed out which gives the jury in the recorder’s court such power, but the reasoning is that, as in ordinance cases tried before the police justices the jury are judges of the law and facts, it is to be inferred that the legislature, in conferring jurisdiction upon the recorder’s court to try such .cases, must have intended that it would be attended by the same incidents. And, if the statute is to have any other construction, the fourteenth amendment is again invoked. The contention does not commend itself to us as sound. It would be equally logical to say that as, in trials before a justice of the peace, the jury determine both the law and facts, the same practice should obtain on appeal, or in all cases in which the circuit and justices’ courts have concurrent jurisdiction.

. The defendant attacks the validity of the ordinance as it relates to garbage or refuse from the tables of hotels. Similar ordinances have been before the court, and sustained, in People v. Gordon, 81 Mich. 306. (45 N. W. 658, 21 Am. St. Rep. 524), and City of Grand Rapids v. De Vries, 123 Mich. 570 (82 N. W. 269). In these cases the question of whether there is a property, right in refuse was not raised in the form in which it is here presented, although in the case last cited it was quite plainly implied that the common council, in the exercise of the police power, had the right to treat as a nuisance all such refuse as is unfit for human food. The court may well take judicial notice that table refuse, when dumped into receptacles kept for that purpose, will speedily ferment and emit noisome odors calculated to affect the public health. If, in providing against such a nuisance, the owner of such material suffers some slight loss, the inconvenience or loss is presumed to be compensated in the common benefit secured by regulation. Horr & B. Mun. Pol. Ord. § 220. The precise question involved in the present case was considered in the well-reasoned opinion of Judge Shepard in Dupont v. District of Columbia, 20 App; Cas. (D. C.) 477, and the conclusion reached fully sustains the holding of the trial judge. See, also, State v. Orr, 68 Conn. 101 (35 Atl. 770, 34 L. R. A. 279). The court in Dupont’s Case distinguished between garbage and dead animals, and by so doing distinguished some of ¡the cases cited by defendant’s counsel, which hold that it is not competent to declare a dead animal to be a nuisance immediately after death. The reasoning in Dupont’s Case commends itself to us, and we are disposed to follow it.

Judgment is affirmed.

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


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    PEARL v. TOWNSHIP OF BENTON.
    1. Townships — Personal Injuries — Defective Bridges — Authority to Repair.
    A township which has elected to maintain its highways and bridges, not by a system of general taxation, as provided by 2 Comp. Laws, §§ 4104^4114, but by the labor of the inhabitants, as provided by sections 4072-4103, cannot escape liability for an injury due to a defective bridge on the ground that, as the accident happened after it had expended all its labor for the year, it had neither the means nor the authority to repair the bridge; adequate means and authority to repair bridges being given in such cases by 2 Comp. Laws, §§ 4129-4131, and 1 Comp. Laws, § 3443.

      % Same — Instructions—Harmless Error — Special Verdict.
    Any error in the charge of the court, or in the refusal of requests to charge, which would permit the jury to find a township liable for a latent defect in a bridge, was rendered harmless by a special verdict that the defect was visible to persons traveling over the bridge, and was generally known in the township.
    3. New Trial — Denial—Exception—Error.
    Unless an exception is taken to the denial of a motion for a new trial, it will not be considered on error.
    Error to Berrien; Carr, J.
    Submitted February 24, 1904.
    (Docket No. 105.)
    Decided June 25, 1904.
    Case by Arthur L. Pearl against the township of Benton for personal injuries. From a judgment for plaintiff, ■defendant brings error.
    Affirmed.

      G. M. Valentine and M. L. Howell, for appellant.

      James O'Hara and Gore & Harvey, for appellee.
   Carpenter, J.

On the 21st of December, 1895, plaintiff was injured by the fall of a bridge over which he was traveling in defendant township. He brought this suit to recover compensation on the claim that defendant was responsible for his injuries. The first trial resulted in a judgment for plaintiff, which was reversed by this court. See 123 Mich. 411 (82 N. W. 226). The second trial resulted in a verdict and judgment for defendant. This also was reversed by this court. See 131 Mich. 275 (91 N. W. 209). On the third trial, plaintiff for the second time recovered a judgment. Defendant asks us to reverse that judgment.

It was the claim of the plaintiff on this trial that the cause of the fall of the bridge was the undermining of a mudsill which served as. its foundation, and that this mudsill was being undermined for several months before the bridge fell; that visible evidence of this defect was presented to those passing over the bridge, by the settlement or canting of its north end; and that the defect was so obvious and generally known in the township that defendant’s officials would, had they been diligent, have discovered and remedied it. Upon this theory the case was submitted to the jury, who rendered a verdict for plaintiff. We are asked to reverse this judgment, not upon the ground of the unsoundness of the theory upon which the case was submitted to the jury, — for this theory accords, with our last decision in this case, and with Thomas v. City of Flint, 123 Mich. 10 (81 N. W. 936, 47 L. R. A. 499), — but upon the ground, as we understand from defendant’s brief, that there was no such evidence that the defect was visible and generally known as to warrant the submission of the case to the jury. To this we cannot agree. There is certainly as much evidence, and, in our’ judgment, more, in the present record, than there was. when the case was before us on the last occasion, and it was then said that there was “testimony tending to show that the imperfect condition of the bridge was visible and generally known for a long period.” We do not mean to say that the undermining of the mudsill was visible. The' canting and settlement at one end of the bridge was, however, clearly visible, according to plaintiff’s testimony,. and generally known; and the evidence warrants the inference that due diligence on the part of those who should have observed this canting and settlement would, owing to the construction of the bridge and the conditions surrounding it, have led to the discovery that the mudsill was undermined and falling.

Defendant elected to maintain its highways and bridges, not by a system of general taxation, as provided by chapter 4 of our general highway act (Act No. 243 of the Public Acts of 1881; sections 4104-4114, 2 Comp. Laws), but by the labor of the inhabitants of districts, as provided in chapters 2 and 3 of said act. See sections 4072-4103, 2 Comp. Laws. It is contended that defendant was thereby relieved of its obligation to keep its highways and bridges in repair, and in a condition reasonably safe and fit for travel, as provided by Act No. 264 of the Public Acts of 1887 (sections 3441-3445, 1 Comp. Laws), because it had neither the means nor authority to comply with said act. It is contended that, under this law, the only means whereby a bridge could be repaired was the labor of the inhabitants, and that after November 1st, where, as in this case, the labor had all been performed, this means was not available. It is contended that there was no authority because the official charged by this law with the duty of maintaining highways and bridges is the overseer of highways for the district, who thereby becomes a State officer, for whose negligence the township is not responsible, and that there is no provision in this law by which any duty rests upon said overseer either to make these repairs, or to exercise any diligence to discover them, except at the regular time for supervising the labor of the inhabitants.

If this argument is sound and based on correct premises, the consequences are startling. It opens a method by which any township in the State may voluntarily relieve itself from or greatly lessen its statutory obligation. In the view we take of the case, it is unnecessary to pass upon the soundness of this argument, because, in ourjudgment, it is founded on a false premise. If we look only at the provisions contained in chapters 2 and 3 of the act under consideration, there would be much force in the claim of defendant that townships adopting this method of maintaining their highways and bridges do not have adequate means of discharging their statutory obligation of keeping their bridges in good repair. But, in our judgment, any insufficiency of means or of authority in these chapters is supplied by other statutory provisions. We are unable to see why adequate means and authority to repair this bridge are not given to the defendant, and to all townships similarly situated, by sections 1, 2, and 3 of chapter 7 of the act heretofore referred to. See sections 4129-4131, 2 Comp. Laws. The first of these sections reads:

“ The commissioner of- highways shal} have the care of the building, rebuilding, and repairing of all bridges within his township, and in cases where it shall be necessary for the public safety to build, rebuild, or repair any bridge within his township, where the cost in any case shall be over fifty dollars, he shall proceed, as soon as may be, to let by contract, pursuant to section three of chapter eleven of this act. * * * Provided, that nothing in this section shall prevent the overseers of highways of the several road districts in the State, from expending any delinquent highway or commutation money or labor in the construction, repair, and maintenance of bridges in such districts.”

Section 4160 provides for the payment for the labor performed, materials furnished, and other expenses incurred under the above section; and section 4131 provides for raising a fund where the expenditure in building bridges exceeds $1,000.

It is scarcely necessary to say that the authority given in these sections, extending, as it does, to ‘ ‘ all bridges” in the township, applies where the township has adopted the method of maintaining highways and bridges by labor of its inhabitants. It results from these sections that the commissioner of highways, a township official, and not the overseer of the road district, is charged with the duty of repairing bridges, and means are furnished him by which that duty may be performed. It is true that this duty cannot be immediately performed, under these sections, if the expenditure exceeds $50. But in- such a case as that, — indeed, in many cases where the amount of the expenditure is less than that, — if the bridge is not safe for travel, the duty of closing it to travel can and should be performed. See Southwell v. City of Detroit, 74 Mich. 443 (42 N. W. 119). And this would be sufficient to prevent dangers to travelers, and, if performed in the case at bar, would have prevented plaintiff’s injury.

It may also be said, in our judgment, that section 3 of' the act creating municipal liability in cases of this character (see section 3443, 1 Comp. Laws) gave defendant adequate means and authority to repair this bridge. That section reads:

“ It is hereby made the duty of townships * * * to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all public highways, streets, bridges, * * * and culverts that are within their jurisdiction and under their care and control, and which are open to public travel; and, when the means now provided by law are not sufficient, * * * such township * * * is hereby authorized to levy such additional sum * * * as will enable such township * * * to keep its public highways, "streets, bridges, * * * and culverts in good repair at all times.
“Highway commissioners, street commissioners, and all other officers having special charge of-highways, streets, bridges, * * * • and culverts, and the care or repairing thereof, are hereby made and declared, to be the officers of the township * * * wherein they are elected or appointed, and shall be subject to the general direction of such township * * * authorities in the discharge of their several duties.”

It is contended that this section does not apply, because, in townships maintaining their highways by labor, the bridges are not under their care and control, because they are under the control of the overseer of the distinct'. But, as we have already seen, the bridges in such townships are by section 4129 placed under “the care of the commissioner of highways.” Even if it were otherwise, and they were under the care and control of the overseer of the district, that overseer is made by the second sentence in the section above quoted an officer of the township, and subject to the general direction of such township.

Defendant contends that “the provisions of this section (3443) are mere idle words, as applied to townships and highway officers, when highway taxes are collected in labor,” because “any increase in the highway taxes of such township remains payable in labor, which may all be required by August 1st in each year.” Neither section 3443, nor the act of which it is a part, indicates that the sum therein authorized to be levied is payable in labor, and defendant’s contention furnishes the strongest kind of an argument that it is not so payable. If the assumption that it is so payable prevents, as defendant contends, a township keeping “ its public highways, streets, bridges, and culverts in good repair at all times,” then we are bound to assume, in order that the legislative purpose may be accomplished, that it is payable in money.

It is also urged that section 3443 does not aid because, no matter how much is raised under it, “it authorizes nothing, after the annual town meeting, for the then present year.” By this we understand that it is claimed that the tax levied under this section in one year would not be available until after the tax was paid at the end of the year; that is, as applied to this case, the tax levied under this section in 1895 would not be available until 1896. It •is to be borne in mind, however, that this section has been a part of the law since 1887. It authorizes a township to raise by tax sufficient money each year to answer all requirements until the tax of the following year is available. While it may be said that the defendant township could not, in the year 1895, raise the money, under this section, needed for the repairs in question, authority was given to raise that money in 1894.

It is to be observed that we are not dealing with the question of whether the defendant township properly exercised its statutory authority, — and, if it did not, defendant alone is chargeable for its default, — but we are dealing with its contention that it lacked statutory authority to make the repairs in question; and it is our judgment, as heretofore stated, that section 3443, as well as the other sections referred to, answers that contention.

It is claimed that a request of the plaintiff, given by the court, warranted the jury in finding defendant liable for a latent defect, and it is also claimed that the court erred in not giving the following and other similar requests of defendant:

“ If a large majority of the people of the township who passed over the bridge did not observe any defect in it, it cannot be said that the defect was so apparently visible as to give the township notice of its existence.”

These alleged errors, if errors they were, are proved to be harmless by the fact that the jury, by their answers to special questions, found that the defect was visible to persons traveling over the bridge, and was generally known in the township prior to the accident.

Complaint is made of the refusal of the trial court to give other requests of defendant, and of the general charge. Many of these requests should not have been given. Such as should were covered by the general charge, which was fair to defendant, and a clear statement of the law applicable to the case.

Complaint is made because the court denied defendant’s motion for a new trial. The record contains no exception to this denial, and therefore we cannot consider this complaint. See Stevenson v. Railway Co., 118 Mich. 651 (77 N. W. 247).

We have examined the other errors relied on. We do not think they are well grounded, or that they demand ¡discussion.

The judgment is affirmed.

Moore, C. J., and Montgomery, J., concurred. "HookER, J., concurred in the. result. Grant, J., did not .sit.


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    McMILLAN v. REAUME.

    1. Statute of Limitations — Second Suit for Same Cause — Mistake of Remedy.
    Where plaintiff, before her right of action was barred by the statute of limitations, brought suit in assumpsit for fraud in the sale of real estate, which action was defeated on the ground that she had mistaken her form of remedy, and not upon the merits, a second action in tort for the same fraud, begun within one year after the final determination of the former suit, was not barred by the statute. 3 Comp. Laws, § 9738.
    2. Fraud — Conflict of Evidence — Question for Jury.
    Where there is a substantial conflict in the evidence upon a question of fraud, it should be submitted to the jury.
    3. Same — Measure of Damages — Exceptions to General Rule.
    In an action for fraud in inducing plaintiff to sell an interest in real estate for less than it was worth, the measure of damages is the difference between what she received and what it was reasonably worth; and, if there is anything in the circumstances of the case to take it out of the general rule, the defendant should call the court’s attention to it by a request.
    Error to Wayne; Frazer, J.
    Submitted February 26, 1904.
    (Docket No. 79.)
    Decided June 25, 1904.
    Case by. Josephine Bedier McMillan against Denis J. ■Reaume, Hiram D. Willmarth, and Jay Fuller for fraud in the sale of real estate. From a judgment for plaintiff, defendants bring error.
    Affirmed.
    The circumstances and facts upon which the present suit is based are sufficiently stated in the three former decisions of this court based upon the same transaction. Bedier v. Reaume, 95 Mich. 518 (55 N. W. 366); Bedier v. Fuller, 106 Mich. 342 (64 N. W. 331); Id., 116 Mich. 126 (74 N. W. 506). The first suit was brought on the chancery side of the court to set aside the deed given by plaintiff, the complainant in that suit, on the ground of fraud. The bill was dismissed in the court below, and the decree affirmed in this court. Plaintiff then, in the belief that she could waive the tort and sue in assumpsit, brought the second suit. The declaration contained a special count and the common counts. The demurrer to the special count was sustained both in the circuit and in this court (106 Mich. 342 [64 N. W. 331]) for the reason that plaintiff could not disaffirm the contract, waive the tort, and maintain assumpsit as upon an implied promise for the difference between the amount received and the actual value. Plaintiff then went to trial upon the common counts, and her claim will be found stated in the third case in this court. 116 Mich. 126 (74 N. W. 506). Upon the opening statement in that case by her counsel, the court directed a verdict for defendants upon the ground that she had affirmed the contract, and could not, therefore, recover “as for an implied promise in assumpsit.” After the determination of the former suit, plaintiff then brought this action of tort, based upon the fraud alleged to have been committed by the defendants upon her in the sale of her interest in her father’s estate. She recovered verdict and judgment. Three questions are presented: (1) Is- the action barred by the statute of limitations? (2) Was there evidence of fraud to justify the verdict? (3) Was the correct rule of damages submitted to the jury?

      John D. Conely (William C. Stuart, of counsel), for appellants.

      Fred A. Baker, for appellee.

       Rehearing denied October 27, 1904.

   Grant, J.

(after stating the facts). The principal and most important question arises upon the statute of limitations. That portion of the statute applicable to the case is as follows:

‘ ‘ If, in any action duly commenced within the time limited in this chapter and allowed therefor, * * * the writ be abated, or the action otherwise avoided or defeated, * * * for any matter of form, or if, after a verdict for the plaintiff, the judgment shall be arrested, or * * * shall be reversed on a writ of error, the plaintiff may commence a new action for the same cause at any time within one year after the abatement or other determination of the original suit, or after the reversal of the. judgment therein.” 3 Comp. Laws, § 9738.

The only suit determined within one year prior to the commencement of this suit was that upon the common counts, which was determined in May, 1897, and this suit was commenced in April, 1898, — within one year after the final determination of the former suit. This suit was not •a determination upon the merits. The merits were not entered upon. The plaintiff and her counsel believed that they could try the merits of the controversy in an action of assumpsit, instead of tort. No testimony was taken. After the opening statement, the court held that the plaintiff’s suit was planted upon a mistaken view of the law; in other words, plaintiff had mistaken her form of remedy.

We think the statute clearly covers such a case. Our ■statute of limitations was borrowed from that of Massachusetts. It was said by the supreme court of that State, speaking through Chief Justice Shaw:

“This is a remedial statute, both in its enacting and qualifying clauses, and should have such construction as will best carry into effect the intent of the legislature; * * * and the presumption [of payment] does not arise if the creditor resorts to legal diligence to recover his debt within the time limited. ”

That court therefore held that, where the first letters of administration were held to be a nullity, and a second suit was commenced within one year after that decision, and more than six years after the debt accrued, the new suit could be maintained. Coffin v. Cottle, 16 Pick. 383, 385.

It is not an infrequent occurrence for attorneys to make a mistake in the form of the remedy. Where they have acted in good faith, the- statute should be held to apply. So, where an action upon, contract was defeated on demurrer to a declaration in a suit at law, a bill in equity was held maintainable under this statute. Taft v. Stow, 167 Mass. 363 (45 N. E. 752); Phelps v. Wood, 9 Vt. 399; Spear v. Newell, 13 Vt. 288.

Without entering into details, we think there was sufficient evidence to justify the submission of the question of fraud to the jury. If there was any substantial conflict of evidence, it belonged to the jury; and we think there was.

The court instructed the jury that, if they should find for the plaintiff, the measure of damages would be the difference between what the property sold for and. what her interest really was; i. e., the difference between what she actually received and what her interest was worth. It is contended that plaintiff knew that her share was worth much more than she received for it, and that, therefore, the true measure of damages would be the difference between what her interest was worth and what she was led to believe it to be worth. While there is evidence that plaintiff knew that, aside from debts, the value of the widow’s dower, ■ and expense of litigation, the value of the estate was more than $4,500, yet her claim is based upon the theory that these defendants induced her to believe that $4,500 was all her interest was in fact worth. Furthermore, counsel for the defendants preferred no request for instruction upon this point. The rule laid down by the court is the usual measure of damages. If the defendants contended that there was anything in the peculiar circumstances of this case to bring it without the general rule, it was their duty to call the attention of the court to the matter. We think the instruction correct.

The judgment is affirmed.

The other Justices concurred.


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    CLUTE v. EVERHART.
    1. Courts — Jurisdiction—Waiver.
    Objections to the jurisdiction of the court over the person of defendant are waived by pleading the general issue and going to trial on the merits.

    2. Replevin — Possession—Question por Jury.
    Where certain turkeys were shown to have been shut up by defendant before the issuance of a writ of replevin therefor, and defendant’s testimony tended to show that he had let them but, and that they went towards plaintiff’s residence, and plaintiff’s testimony tended to show that they never came home, defendant was not entitled to a directed verdict on the ground that the property was not in his possession at the time the writ issued.
    -3. Same — Waiver op Return — Damages.
    A defendant in replevin who was not the owner of the property, nor entitled to its possession, and who waived a return, and defended on the ground that he did not have possession at the time the writ issued, was not entitled to a judgment for its value.
    Error to Cass; Carr, J.
    Submitted April 5,' 1904.
    (Docket No. 127.)
    Decided June 25, 1904.
    Replevin by John Clute against Charles Everhart. Erom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Walter C. Jones, for appellant.

      Cassius M. Eby (F. W. Knowlen, of counsel), for appellee.

       Act No. 310, Pub. Acts 1905, permits such questions to be reviewed on error after final judgment.

   Hooker, J.

The statement of facts contained in the brief of plaintiff in error (defendant below) alleges that Clute, the plaintiff below, filed an affidavit for the replevin of some turkeys, of the value of $15, with a justice of the peace, on the 11th of November, 1902, but that a proper-bond was not filed at that time. The writ was issued,. but no return was made. On the return day, November 17th, the defendant moved to dismiss the writ. This was. done, and the justice made an order that the property replevied be returned to the defendant. The turkeys taken, viz., nine, were not returned, but remained in the hands of the plaintiff, to whom the officer had delivered them. Defendant states that nine of the turkeys were seized and delivered to the plaintiff, and were never returned to him, and this is not denied in plaintiff’s brief. Plaintiff testified that they remained in his possession after such delivery by the officer.

A new affidavit and bond were filed upon the same day, and a writ returnable November 24th was issued. This writ was returned; the return being dated November 17th, being the same day of its issue. Upon the return day, viz., November 24th, the defendant appeared specially and moved to dismiss the suit upon the ground of an improper service; the copy not showing the date of the writ, or the place of its issue, otherwise than in its order for a return. The copy served was attached to the motion, and the date and place of issue were omitted from the blanks, therefor.

The docket entry shows that this motion was denied, and that an alias writ was issued and served upon the defendant, who was in court; being dated November 24, 1902. This probably means that a copy of the writ issued November 17th was served, as no alias writ appears in the record, and in the amended return it is called an alias-copy of said writ. Judgment was then rendered for the plaintiff, and the defendant took a special appeal to the circuit court. The grounds of the special appeal were:

1. That a true copy of the writ was not served, and therefore that the justice did not acquire jurisdiction in. the case.

2. That the justice erred in denying the motion to dismiss.

3. That the court erred in issuing an alias writ returnable on the same day that it issued.

4. That, defendant not further appearing, the rendition of judgment by the justice was erroneous.

These points are stated in various ways, but the above is the substance of the irregularities complained of. The justice made no return to the allegations of fact or error contained in the affidavit for special appeal.

In the circuit court the defendant moved to dismiss the writ and to quash the proceedings and assess defendant’s damages, and he waived a return of the property. The court found that there was no error in the proceedings before the justice, and overruled the errors on the special appeal. The defendant excepted to this, and four days later the cause was brought on for trial upon the merits before a jury, a verdict and judgment being rendered for the plaintiff, and the case is before us upon a bill of exceptions.

At the opening of the trial the following occurred:

“Mr. Jones: In the special appeal, your honor overruling the special appeal and setting the case for trial, and, inasmuch as there has been no plea, I at this time want to file a plea of the general issue, and reserving unto the defendant his rights by exceptions heretofore taken and filed to the court overruling the special appeal.”
“Plea.
[Title of Court and Cause. ]
‘ ‘ The above-named defendant, Charles Everhart, comes and demands a trial of the matters set forth in the plaintiff’s declaration, reserving unto defendant exceptions heretofore taken in this cause in the court dismissing the defendant’s special appeal.
“Walter C. Jones,
“ Attorney for Defendant.”

Counsel for the defendant now raises the following questions :

1. The attempted service of the writ did not confer jurisdiction, and the case should have been dismissed on special appeal.

2. Plaintiff could not maintain replevin for the property which was not in defendant’s possession on November 17th, when the writ issued.

3. Plaintiff was not entitled to recover without accounting for the value of the property taken upon the first writ.

4. The plaintiff should not have been allowed to recover, because the title to the turkeys was in another.

5. Yerdict should have been directed for the defendant, because the proofs failed to show that the property was in the possession of defendant when the action was commenced.

If it be conceded that the justice acquired no jurisdiction of the defendant, by reason of the defective copy of the writ served, the questions raised by the special appeal were waived by the plea of the general issue interposed at circuit, and the subsequent trial there. Manhard v. Schott, 37 Mich. 234; Dailey v. Kennedy, 64 Mich. 208 (31 N. W. 125); Improved-Match Co. v. Insurance Co., 122 Mich. 256 (80 N. W. 1088).

Defendant claims that the evidence conclusively shows that nine of the turkeys were in the plaintiff’s possession at the time the second writ was issued, and that it as clearly shows that the other four were not in the defendant’s possession at that time, and that it was error upon the part of the circuit judge not to direct a verdict for the defendant in accordance with his request, for the reasons:

“1. Because the testimony on the part of plaintiff shows that at the time this action, or the one now before the court, was brought, the property was in possession of the plaintiff, and this action will not lie.
“2. Because there is no evidence in the case that the property in question was ever-in the possession of defendant, so far as this case is concerned.”

The plaintiff was not entitled to maintain a replevin for property in his own possession, as the nine turkeys were. But this did not entitle the defendant to a verdict, and, unless he is right in his claim as to the four turkeys, the court should not have directed such a verdict. The thirteen turkeys were shown to have been in defendant’s possession previous to the issue of the writ. He testified that .he shut up thirteen of them. He offered testimony tending to show that he turned out four of them, and that .they went towards the plaintiff’s; but they never went home, according to plaintiff’s testimony. The question was one for the jury, who found against the defendant. We cannot set aside the verdict upon the ground that a verdict should have been directed for the defendant, for the reason that plaintiff was entitled to go to the jury as to the four turkeys, whether he was as to the nine or not.

The court instructed the jury that the plaintiff could not recover for the nine turkeys, because they were in his own possession at the time the writ issued. The defendant waived a return of the property, and claimed the value. The court left to the jury the question whether the turkeys belonged to him or the plaintiff, and directed them to give him a verdict for the value of such as belonged to him. There would be no justice in giving him a verdict for the value of plaintiff’s turkeys upon no other ground than that he did not have possession of them when the suit was begun. There was no substance to the claim that plaintiff .could not maintain his suit because the turkeys belonged to his wife. The jury must have found that the plaintiff was the owner and entitled to the possession of this property, and that defendant was not. Under such circumstances, defendant was not entitled to a verdict for the value of plaintiff’s property. Treadwell v. Paddock, 75 Mich. 286 (42 N. W. 820); Pearl v. Garlock, 61 Mich. 419 (28 N. W. 155, 1 Am. St. Rep. 603).

The judgment is affirmed.

The other Justices concurred.