author: Long, C. J.

text:
    PEERLESS MANUFACTURING CO. v. DETROIT CYCLE CO.
    Appeal—Review. ■
    Complainant corporation, a creditor of the defendant cycle company, obtained from it a transfer of certain contracts as security for its claim, and left them for collection in the hands of defendant’s secretary. The company thereafter gave a chattel mortgage to the defendant manufacturing company, and assigned as further security several of the- contracts in question. Complainant filed a bill for an accounting, alleging that such secretary, as its agent, and the defendant manufacturing company, had made collections upon its contracts, and a decree was rendered declaring complainant to have a first lien upon all the contracts originally transferred to it, and directing that defendants account to it for all moneys received by them upon such contracts. Held, that the decree was fully sustained by the evidence.
    Appeal from Wayne; Lillibridge, - J.
    Submitted November 11, 1896.
    Decided December 9, 1896.
    Bill by the Peerless Manufacturing Company against the Detroit Cycle Company, Limited, and others, for an accounting. From a decree for complainant, defendants appeal.
    Affirmed.

      A. G. Pitts and O. M. Leonard, for complainant.

      Atkinson & Atkinson, for defendants.
   Long, C. J.

The defendant the Detroit Cycle Company, Limited, is a partnership association, organized under chapter 79, 1 How. Stat., and doing-business in the city of Detroit. The complainant is a corporation of Cleveland, Ohio, engaged in the business of manufacturing and selling bicycles and bicycle sundries. On September 16, 1893, the Detroit Cycle Company was indebted to the complainant in the sum of $2,705, and on that day the complainant sent Frank R. Merchant, an attorney, to Detroit, to secure the debt, and such negotiations were had that it was agreed between Mr. Merchant, representing the complainant, and Mr. Matheson, Mr. Holmes,, and Mr. Robinson, representing the Detroit Cycle Company, that the latter should transfer to the complainant certain contracts as security for the complainant’s claim. It was the custom of the Detroit Cycle Company, in many cases, to sell bicycles on weekly and monthly payments, according to the terms of a contract entered into between the parties, by which the bicycle was turned over to the purchaser, but remained the property of the Detroit Cycle Company until the payments had been fully completed. Forty-two of these contracts were selected by Mr. Matheson, president of the company, in the presence of Mr. Holmes,' the treasurer and manager, and turned over to Mr. Merchant, and he left them with the bookkeeper of the Detroit Cycle Company with the understanding that defendant Robinson was to have charge of them, and make collections upon them, and turn the proceeds over to the complainant. A. list of these contracts was made, and is headed, ‘ ‘ List of Contracts Passed Over to E. B. Robinson on Behalf of the Peerless Manufacturing Company, Cleveland, Ohio, September 16, 1893.” Each contract was numbered, and the amount due on each stated in the' list, as well as the names of the parties from whom the amounts were due, amounting in all to $3,537.96. Complainant claims that by this arrangement defendant Robinson did collect certain amounts, and for a time remitted the proceeds, or a part thereof, but that in December, 1893, he refused and neglected to remit anything further. On October 6, 1893, the Detroit Cycle Company gave a chattel mortgage to the defendant the Gormully & Jeffery Manufacturing Company, an Illinois corporation, to whom the Detroit Cycle Company was indebted, and at the same time assigned all its contracts to that company as further security, including many of the contracts formerly turned over to the complainant, and which, the latter contends were in the hands of Robinson as its agent for collection; and it is asserted that the Gormully & Jeffery Manufacturing Company now claims to own those contracts, and has made collections thereon.

The Gormully & Jeffery Manufacturing Company claims by its answer that it knew nothing of the arrangement by which Robinson received these contracts, and was to collect them for the complainant, but admits that the defendant Detroit Cycle Company gave a chattel mortgage and assigned these contracts to it, to secure certain indebtedness to it. It denies that it received from the Detroit Cycle Company any contracts belonging to the com- ■ plainant, or that it received any contracts from defendant Robinson, and avers that all the contracts assigned to it were at the date of the assignment in the possession and under the control of the Detroit Cycle Company, and that it had no notice that the complainant had any claim thereto. And it further alleges that, relying upon the apparent ownership of the contracts evidenced by the . possession of the same by the Detroit Cycle Company, and in consideration of the latter’s assignment to it, the Gormully & Jeffery Manufacturing Company advanced to the said Detroit Cycle Company a large sum of money to relieve said contracts from the lien of the Preston National Bank, where said contracts were held as collateral security to certain notes of the Detroit Cycle Company, and that, in addition to paying about $2,000, it extended the time of payment of the aipount due it by the Detroit Cycle Company, and took said chattel mortgage and assignment in good faith, and without notice of any right or interest the complainant had in any of them. It denies that it made any collections on contracts belonging to the complainant. It alleges that on account of its succeeding to the business of the Detroit Cycle Company, and transacting business at the same store, certain moneys have been paid into its hands by various parties, and also several bicycles have been left with it, which, it is informed, belonged to the complainant or to the Detroit Cycle Company, for all of which sums collected and machines left with it the defendant is ready to account to whomsoever it is proper. Defendant Robinson denies by his answer that he ever received these contracts, and alleges that he refused to have anything to do with the collection of them personally, and that, if a.ny amounts have been paid to the complainant upon its account, it was done at the request of the manager of the Detroit Cycle Company; and he denies that he ever made any agreement at any time to collect said contracts for the complainant, or that he is in any way indebted to the complainant.

On the hearing the court below made a decree finding that there was due from the Detroit Cycle Company to the complainant the sum of $2,817.62, and that for such amount complainant had a lien upon all the contracts for the sale of bicycles set forth and enumerated in the schedule made and delivered by the officers of the company to the complainant on September 16, 1893, and that this was a first lien thereon, and not subject to any lien acquired by the Gormully & Jeffery Manufacturing Company; that that company should account to the complainant for the moneys received by it upon said contracts; that, as to the remainder of said contracts, Edwin B. Robinson should account for all sums collected thereon after the 16th day of September, 1893, that being the day when the contracts were accepted by him for collection on behalf of complainant, as found by the court. The court referred the matter of accounting to a circuit court commissioner of Wayne county to ascertain the true state of the account, what had been collected upon each contract, and by whom, and what bicycles had been returned, and what contracts had been settled and compromised, and by whom, and directed that the Gormully & Jeffery Manufacturing Company and Edwin B. Robinson should account for such contracts, and pay over to the complainant the amount found due from them, respectively, within 10 days after said accounting should be completed, and directed that, should any deficiency remain, the commissioner should sell bicycles returned to meet it, and report his doings thereon to the court. The court further found that the bicycle contracts for which the Gormully & Jeffery Manufacturing Company should account were the 16 which were included in the assignment to that company, and which had been theretofore turned over to Robinson for collection, and that it should also account for other contracts, enumerated in Schedule A, upon which its agents had received payments, and that, should any default be made in the sum found due to the complainant from either Edwin B. Robinson or the Gormully & Jeffery Manufacturing Company for 10 days after the coming in of the report, the complainant should have execution therefor. Prom this decree the defendants appeal.

It would not be profitable to set forth or discuss the testimony given in the case. We are satisfied that the testimony fully sustains the decree made by the court below. It is contended, however, by counsel for defendants, that Mr. Matheson, Mr. Holmes, and Mr. Robinson had no power or authority to act for the company in turning over these contracts to the complainant’s agent on September 16, 1893. It appeared that Mr. Matheson was the president of the company, Mr. Holmes the treasurer, and Mr. Robinson its secretary; and we think there is sufficient testimony to show that they had such authority. It was not an act creating a debt'against the company, but the turning over of property for the purpose of securing a debt. It is admitted that the Detroit Cycle Company was indebted to the complainant.

The decree below will be affirmed, and the record remanded for the purpose of an accounting. The complainant will recover its costs.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    RHEA v. MEYERS’ ESTATE.
    1. Contracts—Uncertainty.
    The jury may find that the parties to an agreement, whereby an employer promised to give an employe for her services “the cottage” where he then lived, understood each other with reference to the real estate involved, and that the contract, accordingly, was not void for uncertainty, from evidence showing that a certain parcel of land upon which the cottage stood was purchased several years after the adjoining land, and that the employer always referred to this purchase as the “Cottage.”
    2. Statute oe Frauds — Verbal Agreement to Convey Lands —Evidence.
    A verbal agreement to convey land in consideration of personal services may be considered in estimating the value of the services in an action to recover therefor, although there have been no acts of part performance by the promisor. In re Williams’ Estate, 106 Mich. 490, followed.
    Error to Kent; Adsit, J.
    Submitted November 12, 1896.
    Decided December 9, 1896.
    Frances Rhea presented a claim against the estate of Jacob Meyers, deceased. The claim was allowed in part by the commissioners, and the estate appealed to the circuit court. From a judgment for claimant, the estate brings error.
    Affirmed.

      John S. McDonald (Hatch & Wilson, of counsel), for appellant.

      C. H. Gleason (Arthur Lowell, of counsel), for appellóe.
   Moore, J.

Mrs. Rhea presented a claim against decedent’s estate as follows:

Wages from May SO to July 3, at $15, one and one-half months............................... $23 50
Wages for attending store nine months, extra.-- 45 00'
Value of cottage and store building and ground promised claimant by deceased for services_____ 2,500 00
Work and labor done for deceased at his request, agreed to be paid for by his property known as the “Cottage”__________.................... 2,500 00
Interest at 6 per cent, after July 3, 1894________
Work and labor done for deceased at his request-. 2,500 00
Interest at 6 per cent, after July 3, 1894........

The commissioners allowed claimant $1,720. An appeal was taken to the circuit court, where a jury rendered a verdict in favor of claimant for $2,790. The estate appeals.

Jacob Meyers died in June, 1894, at Grand Rapids, where he had lived many years. At the time of his death he left no children, but left an estate of upwards of $20,000. His wife died in June, 1889. ■ At this time Mrs. Rhea was a resident of Clyde, N. Y. It is the claim of Mrs. Rhea that Mrs. Meyers desired Mrs. Rhea to come on to act as housekeeper for Mr. Meyers; that Mr. Meyers telegraphed for her, and that she arrived three days before Mrs. Meyers’ death. The evidence discloses that for many years before his death Mr. Meyers had been a hard drinker, and that the habit was worse after his wife’s death. When he was under the influence of liquor, he was unfit to do business, and was given to squandering his money, and making foolish bargains. It is the claim of Mrs. Rhea that she acted as Mr. Meyers’ housekeeper and cook, and that when he was ill or drunk she acted as his nurse, and took charge of his money and business; that Mr. Meyers knew his failings, and instructed Mrs. Rhea, when he began a spree, to take charge of his money, watch, diamonds, and keys; that she did this, and, when he got sober, returned them to him; that when drunk Mr. Meyers had to be watched constantly, as he would fall and hurt himself, and would drink anything within reach, even though it was hurtful; that he would light matches and. cigars, and throw them down while on fire, imperiling his person and property; that when drunk his habits were filthy; and that she had to and did look after him. It is also claimed by her that she found the work so hard that she left Mr. Meyers, and went to work as a cook for Mr. Stevens, for $8 a week, and board for herself and daughter. It is her claim that Mr. Meyers came to her there, and urged her to return; that she at first declined, but that she finally consented to go, upon his promise that if she would go back he would give her $15 a month, and the cottage where he then lived, for her services, and that this was a renewal of a promise he had made to her before. It is her claim that under this agreement she went back, and performed services for him of the character already described until his death, a period of nearly four years; that at the time of Mr. Meyers’ death he had paid her in part, but had not deeded or willed her the cottage. On the hearing she introduced testimony tending to support her claim, and it is evident that the jury believed her claim to be established by the evidence.

It is claimed for the estate that this contract, even if established, is not good, because it lacks definiteness, and because it cannot be ascertained what was meant by the parties when they spoke of the “Cottage.” It is said to be impossible to tell whether the parties intended to include simply the building in their agreement, or whether land was to be included, and, if land, how much. We do not think this contention can be sustained. The evidence discloses that a piece of land 49 feet front and 222¿ feet deep, with the cottage upon it, was bought by Mr. Meyers, eight years after he purchased the land adjoining it. Some of the testimony is that he always referred to this purchase as the “Cottage,” and the jury were justified in concluding that Mrs. Rhea and Mr. Meyers understood each other with reference to the real estate Mrs. Rhea was to have, if she performed her contract.

It is also claimed on the part of the estate that the contract is void for all purposes, because: “First, it is

founded upon a pretended verbal agreement to convey land, and is void under the statute of frauds; second, because there was no such part performance as would take it out of the statute; third, because plaintiff was never let into possession, and never made any improvements,”—and that the jury should not have been allowed to consider it in estimating the value of plaintiff’s services, or the amount she was entitled to recover from the estate. The questions thus presented by counsel were at issue in the case of In re Williams’ Estate, 106 Mich. 490'. We think this case must govern the case now under consideration. In that case, Justice McGrath entered into a full and detailed discussion of the issues involved. His opinion was so recently handed down that it is not necessary to review the authorities here. We do not think there was error in the trial of the cause.

Judgment is affirmed.

The other Justices concurred.


text:
    FORD v. SAVAGE.
    1. Deeds—Consideration—Parol Evidence.
    Parol evidence that a bargain for an exchange of lands contemplated the payment by one party of interest on mortgages on the property conveyed by him, and the assumption of the principal only by the other party, is admissible as showing the consideration of the conveyance by the lattei% although the deed to him excepted the mortgages from the covenant of warranty, without any qualification in regard to interest.
    3. Evidence—Admissions.
    An attorney in foreclosure proceedings may, in a subsequent action involving the question of liability for the interest as between the mortgagor and a grantee of the premises subject to the mortgage, testify to statements of the mortgagor tending to support the theory that he agreed to pay the interest.
    3. Same—Witnesses—Use of Memoranda.
    A computation made by such witness when the mortgage was in his hands for foreclosure may be referred to by him in testifying to the amount due thereon.
    Error to Kent; Grove, J.
    Submitted November 12, 1896.
    Decided December 9, 1896.

      Assumpsit by John H. Eord against Emeri J. Savage for money paid in discharge of certain mortgages on land conveyed by defendant to plaintiff. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      C. H. Gleason (Arthur Lowell, of counsel), for appellant.

      Lombard Brothers, for appellee.
   Moore, J.

The statement of facts prepared by coun-sel for defendant’ is so terse and clear that it is adopted here:

“This is an action of assumpsit. Prior to March 14, 1892, plaintiff was the owner of a house and lot in the city of Grand Rapids, Mich., incumbered by a mortgage of $1,850, and some accrued interest and back taxes, which he had placed in the hands of Averill & Frary, real-estate agents, for exchange for property with less incumbrance. Defendant was the owner of a house and lot in Coopersville, Mich., incumbered by two mortgages,'—one of $200 and one of $300, each with some accrued interest. Through the efforts of the real-estate agents an exchange of these properties was effected, the deeds being executed and delivered March 14, 1892. 'The deed from defendant to plaintiff was an ordinary warranty deed, and the covenants in the deed read as follows: ‘And the said Emeri J. Savage and Eunice Savage, his .wife, parties of the first part, their heirs, executors, and their administrators, do covenant, grant, bargain, and agree to and with the said party of the second part, his heirs and assigns, that at the time of the ensealing and delivery of these presents they are well seised of the above-granted premises in fee simple; that they are free from all incumbrances whatever, except two mortgages (one of three hundred dollars, and one of two hundred dollars) given to Isaac Manchester, of Coopersville, Michigan; and that they will, and their heirs, executors, and administrators shall, warrant and defend the same against all lawful claims whatsoever, except two mortgages (one of three hundred dollars, and one of two hundred dollars) given to Isaac Manchester, of Coopersville, Ottawa county, Michigan.’

“Plaintiff’s claim was that defendant was to take his property subject to the mortgage of $1,850, the accrued interest, and back taxes, and give him in exchange therefor $200 and the Coopersville property, subject to the principal, only, of the mortgages of $200 and $300 mentioned in his deed, and that defendant was to pay, not only the interest accrued on them at the time of the trade, but as well what would accrue to the 9th day of April, 1892. Defendant admitted the bargain was as stated by plaintiff, except as to the interest on his mortgages. He paid plaintiff the $200, and deeded him his Coopersville property subject to the two mortgages, but did not pay any interest on them, claiming the bargain was that plaintiff was to take his place subject to the mortgages and accrued interest. March 30, 1892, _ the interest not having been paid, foreclosure proceedings were begun on these mortgages. July 5, 1892, plaintiff paid the mortgages, including the costs of foreclosure. He afterwards brought this suit, and was permitted to recover a judgment, against defendant, for the interest claimed to have accrued on these mortgages to the 9th day of April, 1892, being interest claimed to have accrued at the time of the exchange and for 26 days thereafter. This judgment defendant seeks to have set aside.”

The jury, under the rulings and instructions of the court, found for the plaintiff; and it is those rulings and instructions of which defendant now complains, and which he asks this court to review.

The first group of assignments of error relates to the opening statement of counsel. A great deal was said by the attorney for the plaintiff in his opening that it would have been well to leave unsaid, but we do not think what was stated was so prejudicial as to justify us in reversing the case for that reason alone.

The assignments of error that next require discussion relate to the admission of oral testimony of the agreement of defendant to pay, not only the accrued interest on the two mortgages, but also the interest up to April 9, 1892. Counsel insist—First, that it is an attempt to vary the terms of a written agreement; second, that it is an agreement in regard to real estate, and, to be binding, must be in writing; and, third, that the deeds themselves were the final agreements about the exchange, in which all prior or contemporaneous agreements merged; citing Cook v. Bell, 18 Mich. 393; Abell v. Munson, 18 Mich. 306 (100 Am. Dec. 165); Vanderkarr v. Thompson, 19 Mich. 85; McEwan v. Ortman, 34 Mich. 327; Adams v. Watkins, 103 Mich. 431. It is undoubtedly the rule in this State that you cannot vary the terms of a deed by parol, and that a conveyance of an interest in real estate must be in writing to be of binding force; but we do not understand that this was the purpose of the testimony. It was sought to show by the testimony what was the actual consideration for the giving of the deed. Our understanding is that parol testimony is competent to show the consideration for a deed. See Doty v. Martin, 32 Mich. 462; Strohauer v. Voltz, 42 Mich. 444; Dean v. Adams, 44 Mich. 117; Hyler v. Nolan, 45 Mich. 357; Flynn v. Flynn, 68 Mich. 20. These cases are in point, and establish the correctness of the ruling of the trial judge.

Upon the trial, Mr. Goodrich, who was the attorney in the foreclosure proceedings, was allowed to testify what defendant told him about paying the interest. We think this competent, as bearing upon the theory of plaintiff that defendant had agreed to pay the interest. Mr. Goodrich was also allowed to testify that he made a computation of the amounts due on the mortgages at the time they were discharged and paid, and made a memorandum thereof, which he produced, and from which he testified how mtích was due on the mortgages. It is said that the mortgages ought to have been produced, and that Mr. Goodrich had nothing present to base any figures upon, so that it could be told whether or not they were correct. Mr. Goodrich was cross-examined at length about his knowledge of the amount due on these mortgages, and, while it appeared that he was not present when the payments were made, and could not remember what indorsements were made on the mortgages, it was made to appear that the computation was made while the mortgages were in his possession and in process of foreclosure, and for the sole purpose of learning how much was due upon them. We think Mr. _ Goodrich was shown to have sufficient knowledge of the subject about which he was testifying to make him a competent witness. It might be suggested, in this connection, that Mr. Savage was a witness, and was examined about the two mortgages and his payments thereon. He did not contradict the testimony of Mr. Goodrich as to the amount due.

The other assignments of error have had consideration, but we do not deem it necessary to discuss them here.

The judgment is affirmed.

The other Justices concurred.


author: Long, O. J.

text:
    GRAND RAPIDS ELECTRIC LIGHT & POWER CO. v. FIDELITY & CASUALTY CO.
    Insurance—Employer’s Liability Policy—Notice oe Accident.
    Under an employer’s liability policy requiring the assured, “upon the occurrence of an accident, and upon notice of any claim on account of an accident,” to give immediate notice, in writing, “of such accident or claim” to the company, notice need not be given until there has been both an accident and a claim for damages by reason thereof.
    Error to Kent; Grove, J.
    Submitted November 13, 1896.
    Decided December 9, 1896.

      Assumpsit on an employer’s liability policy. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Fletcher & Wanty, for appellant.

      Kingsley & Kleinhans, for appellee.
   Long, O. J.

On June 13, 1894, the defendant insured the plaintiff against liability for damages on account of injuries suffered by any employe of the plaintiff, and on the same day extended the insurance under the “Manufacturers! Outside Liability,” under the terms of the policy, to all accidental injuries sustained by any person whomsoever, other than employes of the plaintiff, for one year. The policy contained the following clause :

“ (3) The assured, upon the occurrence of an accident, and upon notice of any claim on account of an accident, shall give immediate notice, in writing, of such accident or claim, with the fullest information available, to the company, at its office in New York City, or to the agent, if any, who shall have countersigned this policy.”

On December 23, 1894, a trimmer of the plaintiff, who was engaged in trimming lamps in one of the public towers in the city of Grand Rapids, dropped a burnt carbon, about six or eight inches long, from the tower, which, in falling, struck a young child, Florence D. Walker, aged about three years, in or near her right eye, and her injuries subsequently resulted in her losing its sight. The superintendent of the electric light company, Mr. Mathews, heard of this accident on the same evening; and the next day, under the direction of the general manager of the company, he visited the home of the child’s parents, saw the child, and talked with the mother in regard to the injury. While there, two.doctors came, and examined the eye. After this, he returned, and reported the case to the general manager. At this time no notice was given by the parents .that any claim would be made against the company on account of the accident. After the loss of the eye, and in the latter part of June, 1895, the father of the child retained attorneys, who wrote the plaintiff that the child had lost its eye, and that, if the matter was not settled, suit would be brought. This letter was received June 25th, and was the first notice the plaintiff received of any claim against it on account of the accident. On the same day, the plaintiff notified the defendant of the accident, and of the claim made on it, and that it would look to that company to settle it. The defendant claimed that it was entitled to immediate notice of the accident, by the terms of the policy, and on this ground refused to have anything to do with the matter. Suit was afterwards brought on behalf of the injured child against the electric light and power company, and the defendant was asked to assume the defense of the suit, but declined, for the reason already given. Subsequently, with the consent and approval of the defendant company, the electric light company consented to a judgment in favor of the child for $2,000, which, with the taxed costs, amounting to $24, it paid immediately, and thereupon brought the present suit. The case was tried before the court, without a jury, and the court found that the plaintiff was not required to give immediate notice to the insurance company upon the occurrence of the accident, and that it was required to give such notice only after the accident had occurred, and it had received notice of the claim against it on account of the accident. Judgment was rendered for the full amount of the claim in favor of the plaintiff. The defendant brings error.

It is insisted upon the part of the defendant that this clause in the policy means that notice should be given immediately upon the occurrence of an accident, and that the plaintiff had no right to wait before giving, the notice until the claim was made on account of the accident, and that such notice is requisite, whether any claim is made or not; that this construction was within the contemplation of the parties when the contract was entered into; that the reason of that requirement is that the insurance company might at once have the opportunity to investigate, while the witnesses to the accident could be found, and while all the details of the accident were yet fresh in the minds of the parties who were witnesses to it. And it is further contended that the delay from December 23, 1894, to June 25, 1895, in giving notice, was unreasonable. Upon this last proposition, counsel cite many cases in support thereof. If the contention of counsel be correct that notice was necessary upon the happening of the accident, we are satisfied that the notice was not given within the time required by the terms of the policy; that a delay of six months would be unreasonable under the circumstances of this case.

But, on the other hand, it is contended by counsel for plaintiff that the construction, and the only construction, which can be given to this clause- of the policy, requires notice only upon the occurrence of the accident and notice of any claim on account of the accident; and that, therefore, the notice on June 25th given to the defendant company, being the same day the plaintiff received notice of the claim, was a full compliance with the condition of the policy. Counsel cite, in support of this contention, Anoka Lumber Co. v. Fidelity & Casualty Co. (this same defendant), 63 Minn. 286, in which the Minnesota court considered this same clause in the policy. In that case it was said by the court:

“The Fidelity Company contends that this provision requires notice to be given whenever any accident occurs, and also that another notice must be given whenever any el aim on account of an accident is made. Opposed to this contention, it is asserted that notice is not required by the terms of such provision until there has been both an accident and a claim by reason thereof. We are of the opinion that the latter construction is the correct one. Nelson [the injured party] never made any claim against the Anoka Lumber Company for damages prior to the 13th day of September, 1893; and, upon such claim being made, the company immediately notified the insurance company of the accident and Nelson’s claim. No question is raised as to the sufficiency of the written statement or proof of loss. If the injured party never made any claim against the Anoka Lumber Company on account of his injuries, it would be an idle ceremony for the company to give notice of the accident to the insurance company. It only concerned the company when it was notified by Nelson that he claimed damages against it on account of the injuries he had received. When it learned of the threatened liability, then it notified the responsible party, in accordance with the terms of its policy, and that was all the notice required under the provisions of its contract. We have no doubt as to the correctness of the construction we have placed upon the provision of the policy we have quoted, but, if there were any doubt as to the meaning of the clause, then such doubt must be solved in favor of the insured.”

We are of the opinion that the Minnesota court placed the right construction upon the clause of the policy. This clause was drawn by the insurance company itself, and as said in Utter v. Insurance Co., 65 Mich. 545 (8 Am. St. Rep. 913):

“When a stipulation or exception to a policy of insurance emanating from the insurers is capable of two meanings, the one is to be adopted which is the most favorable to the insured.”

In Anderson v. Fitzgerald, 4 H. L. Cas. 484, in speaking of the policy in that case, it was said:

“It ought tobe framed with such deliberate care that no form of expression by which, on the one hand, the party assured can be caught, or by which, on the other, the company can be cheated, shall be found upon the face of it.”

In National Bank v. Insurance Co., 95 U. S. 673, speaking of the policy in that case and the rule here stated, the court said:

“The company cannot justly complain of such a rule. Its attorneys, officers, or agents prepared the policy for the purpose, we shall assume, both of protecting the company against fraud, and of securing the rights of the assured under a valid contract of insurance. It is its language which the court is invited to interpret, and it is both reasonable and just that its own words should be construed most strongly against itself.”

We think the court below was correct in its interpretation of the policy, and the judgment must be affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    MICHIGAN BOLT & NUT WORKS v. STEEL.
    Contracts—Offer and Acceptance.
    A contract for the season is not consummated by a letter quoting prices for a season’s supply of merchandise, in reply to a letter requesting merely that such quotations he furnished, followed by orders at various times for a number of specific articles included among those upon which quotations were so given.
    Error to Clinton; Daboll, J.
    Submitted November 10, 1896.
    Decided December 9, 1896.

      Assumpsit by the Michigan Bolt & Nut Works against George A. Steel and others for goods sold and delivered. From a judgment in its favor for less than the amount claimed, plaintiff brings error.
    Reversed.

      H. J. Patterson, for appellant.

      Feclewa & Walbridge, for appellees.
   Montgomery, J.

This case was determined on special' findings of fact. The plaintiff is a corporation doing business in Detroit, engaged in the manufacture and sale of bolts, nuts, etc. Defendants are engaged in the manufacture of harrow teeth, etc., at St. Johns, Mich., under the name of the St. Johns Spring Company. In January, 1894, defendants commenced the purchase of plow bolts of plaintiff. The business was all done by correspondence. On the 12th of July, 1895, defendants wrote to plaintiff as follows:

‘ ‘ What discount will you be able to make us on our season’s supply of machine, carriage, and plow bolts; also, our tee head bolts ? We have not bought any carriage or machine bolts from you as yet, but may use, the coming season, 100,000 to 125,000. What price can you make us on set screws, !■£ to 1-J, square head, standard thread? Send samples, if you carry this size in stock.”

To this letter the plaintiff replied as follows:

“Answering yours of the 12th, we beg to quote you on your season’s supply from now until July 1, 1896, as follows: Machine bolts, 70—12£— 5 per cent. Carriage bolts, 70—5-—5 per cent. Plow bolts, in bulk: f", 5c. per pound. 7-16”, 4fc. per pound, i", 4£c. per pound. Tee head bolts would be at the same price as other plow bolts. We do not make set screws, and cannot quote you on them, for the reason that we cannot cover ourselves at any factory for a year’s time; but we would furnish them at the lowest market price at all times, should you give us an order. Present discount on set screws is 70—10 off. Terms on all, 60 days net, f. o. b. Detroit; freight allowed to St. Johns on shipments of 200 pounds or over.”

Defendants, on the 15th of July, wrote plaintiff as follows: “Please ship us at once, by freight, 300 plow bolts, f by one inch,” and subsequently, from time to time, ordered plow bolts, which were shipped, on similar orders. Those shipped prior to August 19th were billed at the rate of five cents a pound, but in August there was an advance in price, and the goods shipped in response to the order of August 19th, and in filling subsequent orders, were charged and billed at the rate of six dollars a thous- and, which would amount to about seven cents a pound, and which was, at the time of the shipments, the fair market price. Notwithstanding the goods were billed at the rate of six dollars a thousand, defendants did not discover the discrepancy until December 3d, when they wrote plaintiff, calling attention to the fact that a price had been made of five cents a pound. To this the plaintiff replied, stating that no acceptance of its offer in July had been received, and that the offer was made as an inducement to secure the entire business of defendants. Plaintiff refused to make the concessions claimed, and brought this suit.

It appears that there was due the plaintiff, at the fair market price, for the goods shipped, $58.98; whereas, if the price quoted July 13th is to control, there was due but $14.10, which was tendered. The circuit judge found, from this evidence, that a contract had been made to furnish such bolts as defendants might want, and as were designated in their letter of July 12th, at the price of five cents a pound, and gave judgment for $14.10 only, with costs in favor of the defendants, incurred subsequent to the tender. Whether this conclusion is to be sustained depends upon whether the correspondence of July 12th and 13th made a contract between the parties. We are of the opinion that it did not. The letter of July 13th was a quotation of prices for the season’s supply, required by defendants up to July 1, 1896. By their letter of July 12th, defendants did not undertake to buy any of their supply from the plaintiff. Before they could be bound to do so, there must have been an acceptance of plaintiff’s proposition of July 13th. No such acceptance was shown. Defendants rely upon the case of Cooper v. Wheel Co., 94 Mich. 272 (34 Am. St. Rep. 341). That case is clearly distinguishable from the present. In that case there was an order for the season’s supply at stated prices, which was accepted by the defendant in writing. Such is not the case here. There was no assurance, either in writing or by parol, given to the plaintiff that the defendants would purchase all their requirements of the plaintiff.

The judgment will be reversed, and a judgment entered in this court in favor of the plaintiff for the sum of $58.98, with interest, and costs of all the courts.

The other Justices concurred.


text:
    HOFFMAN v. LOUD.
    1. Preponderance of Evidence—What Constitutes.
    Under the rule requiring a preponderance of evidence in civil cases, plaintiff has the burden merely of producing evidence which, when weighed with that opposed to it, has more convincing force, from which it results that the greater probability is in his favor.
    2. Same—Instructions to Jury.
    It is reversible error for the trial judge to use such qualifying words and phrases, i-n explaining the rule as to the preponderance of evidence, as are calculated to convey the idea that the jury must feel absolutely certain as to the facts before finding for the plaintiff.
    Error to Iosco; Simpson, J.
    Submitted November 19, 1896.
    Decided December 9, 1896.
    Trover by John M. Hoffman against Henry N. Loud. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Phillips & Jenks, for appellant.

      M. J. Connine, for appellee.
   Montgomery, J.

This is an action of trover, for the conversion of timber claimed to have been taken from lands owned by the plaintiff and delivered to the defendant, by whom it was converted. The defense was the statute of limitations, and the question involved was whether any of the timber taken from the lands was delivered to defendant within six years prior to the commencement of the suit, and, if so, how much. All the questions sought to be raised are precluded by the special finding of the jury, unless there was error in the instructions bearing upon the burden of proof. The plaintiff excepts to a portion of the charge, alleging that it placed upon him a greater burden than the rules of evidence require. To understand clearly the purport of the charge, it is necessary to quote at some length. The court charged as follows:

“ It is a legal right that the defendant in this case, Mr. Henry N. Loud, has, a right to insist that, if he pays any damages in this case, the jury shall find that it has been proven to you, by a preponderance of evidence, that the suit was brought within six years from the time the cause of action accrued; just as essential that it should be proven to you by a preponderance of all the evidence in the case as it i^ that he should prove the value of the timber, or anything else. Now, gentlemen of the jury, whether this action was brought within this time is a question of fact. There have heen a number of witnesses on the stand that have sworn that that timber was standing on such a date, and there is one that swore it was not; some have sworn it was cut and hauled on such a date, and others have sworn it was not; and some have sworn there was so much standing, and so much on skids, and others have sworn there was not. There seems to be a good deal Of dispute upon that question. It is a disputed question of fact, that the court has nothing to do with; and it has got to be left entirely to you, and it is your duty to agree upon it. Find, if you can, what is right; and, if you cannot find at all, then, of course, your verdict has got to be, ‘ No cause of action,’ because the man that brings the suit must satisfy you. The man that sues in a court of law, and asks the jury to render a verdict for him, must satisfy that jury so that they are able to say that it is so. As I have stated to you before, we -are not here to guess at anything; we have nobody’s interests at heart, nobody’s rights that we sympathize with; we are not supposed to care for either one or the other; but we are here to say just what is right between the parties, and insist that the one that makes the claim shall prove his claim; and consequently it is your duty in this case to insist that this plaintiff prove by a preponderance of evidence; that is, evidence that, after you have heard it, you are satisfied does not leave your minds balanced, so that you don’t know. I say, it is your duty to be satisfied, by proof and evidence that satisfies you, that the conversion of this property was within six years previous to the 8th day of February, 1892. If he has not done it, if there is not a clear preponderance of evidence that satisfies you to that effect, if there is not that weight of evidence that preponderates in favor of it, gentlemen of the jury, the case is ended, and it is your duty to say, ‘No cause of action.’ * * * This is not a case of equity, or a chancery case. It is a law case. It is a plaintiff suing by law. He says he is entitled to so many hundred dollars from Henry N. Loud, by law. He is entitled to it, he says. He doesn’t ask your sympathy, but he says he is entitled to it, as a legal question, upon the evidence. Now, gentlemen of the jury, the defendant says that, if he is entitled to it, it is his duty, by law, to prove it; that he must produce evidence that establishes the fact that he is entitled to it, so that it preponderates, so that you know it, that your minds are not left balanced. It is his duty to prove it, and the defendant has a right to insist that he does it. And the defendant not only insists that he must prove that there was timber cut, and that he owned the lands, and that he owned the timber, but it devolves upon him to prove that he has not rested upon his rights, but that he has brought this action within six years from the'time his cause of action accrued. * * * I have given you now what I believe to be the law. Now, apply it, and find the facts as you believe them. Don’t guess at anything. It is your duty to sit there and demand that th'e plaintiff establish his case, so that you are not left balanced, so that you have to guess; but he must outweigh the evidence brought against him, so that your minds are not balanced, so that you are satisfied that what he claims is so, before you have the right to grant it.”

In civil cases, a preponderance of evidence is all that is required, and by a “preponderance of evidence” is meant such evidence as, when weighed with that opposed to it, has more convincing force, and from which it results that the greater probability is in favor of the party upon whom the burden rests. Proof to a demonstration is not required, and it is usually unfortunate to employ qualifying words when defining the necessity for a preponderance of evidence, when it is possible that the terms employed may lead the jury to draw the inference that something more than a mere preponderance is required. See Watkins v. Wallace, 19 Mich. 77; Ferris v. McQueen, 94 Mich. 367; Gumberg v. Treusch, 103 Mich. 543. There is respectable authority for holding that the use of the term “ clear preponderance” is in itself sufficient to mislead the jury, and that it is error to employ such term in an instruction. McDeed v. McDeed, 67 Ill. 546; Bitter v. Saathoff, 98 Ill. 266; Mitchell v. Hindman, 150 Ill. 538; Marx v. Kilpatrick, 25 Neb. 118. Whether we would be prepared to adopt this view of all cases, without regard to other portions of the charge, it is not now important to determine. But we think this instruction, taken as a whole, was calculated to impress the jury with a view that something more than a preponderance was requisite before they were authorized to find for the plaintiff. In addition to the expression “clear preponderance,” the jury were repeatedly told that they had no right to guess; -that they must be satisfied. While it is strictly accurate to say that the jury should not be permitted to guess, it is true that they have a right to weigh probabilities, and to decide in favor of the greater; and the use of this expression in the connection in which it was used was calculated to convey the idea that the jury must be able to feel absolutely certain as to the fact, before acting upon the testimony. In one place it is said that “he [plaintiff] must produce evidence that establishes the fact that he is entitled to it, so that it preponderates, so that you know it, that your minds are not left balanced;” that “it is his duty to prove it, and the defendant has a right to insist that he does it.”

We think, taking the charge as a whole, it is open to the criticism made by plaintiff’s counsel, and the judgment should be reversed and a new trial ordered.

The other Justices concurred.


author: Per Curiam.

text:
    VAN HOUTEN v. METROPOLITAN LIFE INSURANCE CO.
    Lire Insurance—False Representations op Applicant—Estoppel.
    Case ruled by Van Houten v. Insurance Co., 110 Mich. 682.
    Error to Kent; Grove, J.
    Submitted October 21, 1896.
    Decided December 9, 1896.

      Assumpsit by Anna Van. Houten, administratrix of the estate of Adrian Van Houten, deceased, against the Metropolitan Life Insurance Company, upon a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Fletcher & Wanty, for appellant.

      Q. H. Albers (C. 0. Smedley, of counsel), for appellee.
   Per Curiam.

This case is ruled by Van Houten v. Insurance Co., 110 Mich. 682, in which an opinion was filed November 17, 1896.

The judgment is affirmed.


text:
    HIDEY v. SWAN.
    Assumpsit — Contract op Sale—False Representations.
    A vendor who agrees to accept in part payment shares of stock at the price paid for them by the purchaser, and who, in reliance on the latter’s false representations that he paid a certain amount therefor, accepts them at such valuation, may maintain assumpsit for the difference between such valuation and the price actually paid by the purchaser.
    Error to Isabella; Davis, J., presiding.
    Submitted October 6, 1896.
    Decided December 18, 1896.

      Assumpsit by John T. Hidey against Marsena D. Swan to recover a balance due on the purchase price of real estate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      O. F. Sheldon, for appellant.

      Fancher & Sangster and F. H. Dodds, for appellee.
   Long, O. J.

In June, 1894, the plaintiff conveyed to the defendant lots 1 and 2, block 4, Brown & Deaton’s addition to Mt, Pleasant, for the consideration of $1,600. The plaintiff was to accept as part payment for the property one-half of 590 shares of stock of the Mt. Pleasant Manufacturing Works, being of the face value of $10 per share, at the price per share that the defendant paid for it. The defendant then and there represented to the plaintiff that he paid 50 cents on the dollar of the face value for the stock, and that he would let the plaintiff have it for just what it cost him; and the plaintiff, relying upon such representations, accepted one-half of such shares, being 295, as payment on the property, the same amounting to $1,475. Subsequently plaintiff learned that defendant did not pay 50 cents on the dollar of the face value for the stock; that he paid only $250 for the whole 590 shares, or $125 for the one-half accepted by the plaintiff. This action is brought to recover the balance due the plaintiff for the land, he claiming it to be the difference between what defendant paid for the stock, and what plaintiff accepted it at by reason of the misinformation given him, the difference being $1,350. On the trial in the court below, it was conceded that the defendant did not pay, directly or indirectly, any greater sum than $250 for the 590 shares. The action is in assumpsit, and, after the close of the proofs, defendant’s counsel moved the court to strike out the evidence in the case, for the reason that the declaration did not set forth a cause of action. The court then asked plaintiff’s counsel:

‘ ‘ What is your measure of damages ?

‘ ‘ Counsel: What we paid him over and above what the stock cost him.

“The Court: Regardless of the fact that the stock may have been worth more than he paid for it ?

Counsel: Yes, your honor; that is our position.”

The "court thereupon directed verdict in favor of the defendant. Plaintiff brings error.

Counsel for plaintiff relies upon the case of Barnard v. Colwell, 39 Mich. 215. The present case is on all fours with that. There the defendant was the owner of certain real estate, which he agreed to sell to the plaintiff for the same sum of money that he had paid for it, which he claimed and pretended was $4,000. This the plaintiff paid, but he thereafter ascertained that defendant paid only $1,700 for it. In an action of tort to recover this difference, in the circuit, the cause went against the plaintiff. On appeal here, the judgment was reversed, and it was held that the declaration contained a sufficient count for money had and received. It was said by this court:

“The recital of facts shows a bargain for the lands at a price measured by the cost, and an overpayment brought about by misinformation, whereby an action arises to demand and receive back what was overpaid.”

In the present case, all the plaintiff agreed to pay for the stock was what it had cost the defendant. This was the measure of price at which he took it, and any amount over and above that price he could recover back, as this balance of the money was paid under misinformation. The court below was in error in holding otherwise.

The judgment below must be reversed, and a new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    HEAVENRICH v. ALPENA CIRCUIT JUDGE.
    1. Attorney and Client — Lien upon Judgment — Discontinuance.
    An action instituted by the attorney for a judgment creditor, in the name and with the approval of the latter, upon a bond conditioned for the payment of the judgment, cannot be discontinued by the agreement of the parties thereto, without the consent of the attorney, to the prejudice of his lien upon the judgment recovered in the former action.
    3. Same.
    It is immaterial that the attorney claiming such lien was styled upon the record as “of counsel” merely, if it affirmatively appears that he instituted the suits, had control of them at all times, and was recognized as attorney of record by counsel for the adverse parties.

      Mandamus by Samuel Heavenrich and another to compel Robert J. Kelley, circuit judge of Alpena county, to vacate an order striking from the files of the court a stipulation for the discontinuance of certain actions at law.
    Submitted October 6, 1896.
    Denied December 18, 1896.

      Sloman, Groesbeck & Robinson, for relators.

      I. 8. Canfield, for respondent.
   Hooker, J.

In May, 1893, relators, and others, who were doing business under the name of S. Simon & Co., were joint mortgagees in a mortgage given them by Kositchek & Bro., of Alpena. In June of the same year, the sheriff of Alpena county attached the mortgaged property in an action brought by other creditors against the Kositcheks. Simon & Co. and the relators brought separate actions of trover against the sheriff, and Simon & Co. recovered judgment for $3,267, and relators for $505. The jury in the latter case, which was the last case tried, found the value of the stock to be $3,772. Subsequently, Simon & Co. assigned to the relators such part of their judgment as would make the amount due each concern equal to that due the other, and each brought an,action in the Alpena circuit upon the sheriff’s official bond. While these actions were pending, the defendants in such actions paid to the relators and to Simon & Co. the amount of such judgments, interest, and costs, less $425, which was retained; notice having been given by I. S. Canfield that he claimed an attorney’s lien for such amount on said judgments. Thereupon relators and Simon & Co. assigned their respective judgments to one Comstock, one of the sheriff’s bondsmen, he being a defendant in such actions; and thereupon relators and said Simon & Co., through Sloman, Groesbeck & Robinson, their attorneys of record, stipulated with the defendants’ attorney for the discontinuance of said actions, and filed such stipulation. No order of discontinuance was entered. Canfield obtained an order striking said stipulation from the files, and relators ask a mandamus to vacate said order.

It is claimed upon behalf of the relators that Canfield was not the attorney of record, but only counsel in each and every of said causes, and that, as such counsel, merely, he had no control over said causes, or lien upon the judgments. The circuit judge returns that Sloman, Groesbeck & Robinson appear upon the records as attorneys, and Canfield and Frank Emerick as counsel; that the evidence showed, and he found the fact to be, that Canfield commenced said actions, and at all times had control of them, and'was recognized as attorney of record by counsel for the adverse parties; that the names of Sloman, Groesbeck & Robinson were placed upon process and pleading by said Canfield out of courtesy; and that they did not appear or take part in any of the proceedings. Relators profess to be able and willing to pay to Canfield a reasonable sum for his services, but deny that he is entitled to the sum claimed by him.

Upon this record, it appears that the court has found that the relators’ attorney, Canfield, had a lien upon the judgment rendered against the sheriff. This gave him an equitable interest in such judgment. An action was brought in the name of the plaintiffs against the sureties of the defendant, upon his official bond, Canfield being their attorney. Thereafter plaintiffs undertook to settle with such bondsmen, and, through their Detroit attorneys, stipulated to discontinue such proceeding, without the consent of Can-field, or in any way providing for his pay. Such action having been instituted with plaintiffs’ approval, we think the case is governed by Weeks v. Wayne Circuit Judges, 73 Mich. 256, and Carpenter v. Myers, 90 Mich. 210, and could not be discontinued to the injury of Canfield without his consent.

The writ of mandamus is denied.

The other Justices concurred.


text:
    KIRKLAND v. KIRKLAND.
    Divorce—Alimony—Reasonableness op Allowance.
    An award of §2,500 alimony out of defendant’s personalty, on condition that defendant should not be liable to complainant for the support of a daughter whose custody was awarded to the latter, and a further award of §2,000, conditioned upon complainant’s releasing her rights of dower in the realty, held reasonable and proper.

    Appeal from Ingham; Person, J.
    Submitted October 7, 1896.
    Decided December 18, 1896.
    Bill by Nina R. Kirkland against Joshua K. Kirkland for a divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      Smith & Lee, for complainant.

      E. D. Lewis and Howard Wiest (W. F. Atkinson, of counsel), for defendant. .

       The decree for alimony fixed the value of .defendant’s personalty at §6,000, and the realty at §10,000.

   Montgomery, J.

This is a proceeding for divorce. The complainant filed her bill of complaint, alleging that defendant neglected and refused to provide suitable food for the family, neglected to provide and furnish sufficient help in the house, and exacted of complainant that she perform more labor than she, in her delicate state of health, was able to perform; that for years he habitually used insolent and abusive language towards complainant; that he was habitually profane, and that he accused her of stealing from him. These charges were denied. The case proceeded to hearing upon testimony taken in open court. The circuit judge granted the relief prayed, and awarded alimony in the amount of $&,500 out of the personalty of defendant, and the further sum of $2,000, conditioned upon complainant’s releasing her right of dower in the lands of defendant. Defendant appeals.

The case is not altogether clear, but, in view of the presumption favoring the conclusion of the circuit judge on a question of fact, where the testimony is so nearly balanced, and where he has had the opportunity of noting the appearance of witnesses on the stand, which-is denied us on appeal, we have, after some hesitancy, determined that we should treat the complainant’s case as made out by the proofs.

Upon the question of alimony, we feel well satisfied that the circuit judge did not exceed a proper and reasonable allowance to the complainant, under the circumstances. There was awarded to the complainant the custody and education of the daughter, and the allowance was conditioned that the defendant should not be liable to the complainant for any support she may furnish to the daughter.

The decree will be affirmed.

The other Justices concurred.


author: Grant, J.

text:
    OADES v. MARSH.
    Wills—Construction—Extrinsic Evidence.
    A testator bequeathed to his wife, in trust for her maintenance and the maintenance of a child yet unborn, “12 shares of stock in the steam barge J.to the child, four shares, to be divided, if he should die before becoming of age, among three persons named; and to two sisters, a half interest each in one undivided share, to be divided, on the death of either or both, among four persons named. Further bequests of 10 shares were made to the children and grandchildren of the testator, after which the will provided for money legacies, aggregating §550, should there be any surplus then remaining, and for a pro rata apportionment as to such legacies in / case of a deficiency; and, finally, that any residue or remainder should go to the testator’s wife. Upon a bill filed to construe the will, it appeared that the testator had at one time owned the steam barge J., but that he had transferred the boat to a corporation, and that, at the time of the execution of the will, he owned no stock in or title to the boat itself; that the sole property of the corporation was the barge in question, and that the testator owned 600 shares of the corporate stock; that, while such shares were of the par value of §50, the testator always spoke of his interest as shares of §1,000 each; and that, when he drew his will, he gave to the scrivener a memorandum of his assets, in which he referred to this stock as “30 shares stock in steam barge J., §30,000.” Held, that a bequest of shares of stock in the steam barge J. should be construed as a bequest of 20 times the number of shares in the corporation.
    Appeal from Wayne; Frazer, J.
    Submitted October 8, 1896.
    Decided December 18, 1896.
    Bill by Walter H. Oades and another, executors of the last will and testament of John Oades, deceased, against William Marsh, administrator of the estate of Alvira S. Marsh, deceased, and others, to construe a will. From a decree for complainants, defendant Marsh appeals.
    Affirmed.

      John Oades died testate September 8, 1893, leaving a widow, and several children by a former marriage, and one by his second marriage, who was born after the will was executed. After his death his widow married William Marsh. She died before this suit was instituted. All parties interested in the will were made defendants. The material portions of the will are as follows:
    ‘ ‘ Third.' I hereby give and bequeath to my wife, Mrs. Alvira Oades, in tzmst, 12 shaz’es of stock in the steam barge John Oades, for her maintenance and the maintenance of her child, to me yet unborn, until it becomes of age, when said trust shall cease.

      “Fourth. I give and bequeath to niy child, yet unborn, four shares of stock in the steam barge John Oades, with all its profits or interests, to be held in trust until it shall become 21 years of age. Should this child not live to become of age, then this bequest shall be divided among my three children, Mrs. Lucy Thompson, of Detroit, Mrs. Mary Hurd, of Utica, N. Y., and Walter H. Oades, of Detroit, or their heirs, share and share alike.

      “Fifth. I give and bequeath to my daughter Mrs. Lucy Thompson, of Detroit, four shares of stock in the steam barge John Oades.

      “Sixth. I give and bequeath to my daughter Mrs. Mary Hurd, of Utica, N. Y., four shares of stock in the steam barge John Oades.”

      “Eighth. I give and bequeath to my grandchildren George, Lena, and John Thompson, of Detroit, two undivided shares of stock in the steam barge John Oades, share and shaz’e alike.”
    ‘ ‘ Tenth. I give and bequeath in trust to my sisters, Mrs. Rozell, of Clayton, N. Y., and Mrs. Betsy McKee, of Iowa, one-half interest each for life in one undivided shaz’e of stock in the steam baz’ge J ohn Oades. On the death of either or both sisters, their share shall be divided between Henry, Minnie, and Eva Johnson and Libbie Kenyozi, all of Clayton, N. Y., share and share alike.”

      “Fourteenth. I hereby order and direct my executors to sell, transfer, or dispose of so much of the remaining stocks not bequeathed as shall satisfy and redeem my three notes or indebtedness as may be against me.

      “Fifteenth. If any surplus remaineth after the above-mentioned bequests are satisfied azid my just debts paid, I desire the sum of $150 to be given to Mrs. Maggie Collins, of Clayton, N. Y., for her services rendered to my sister Mary Collins, deceased; to my sister-in-law Mrs. Talmage the sum of $200; and to my niece Mrs. Vosburg the sum of $200. Should there be a deficiency to meet this last bequest in full, then the same shall be made pro rata to the amount remaining.
    “Sixteenth. Any residue or remainder I give and bequeath to my wife, Mrs. Alvira Oades.”
    The complainants qualified as executors, and filed this bill to obtain a construction of the will. . It is alleged in the bill that the testator intended to give each beneficiary 20 times as many shares of stock as are therein mentioned, and that, where the will reads “one share of stock in the steam barge John Oades,” the same was intended by testator to read, and should read, “20 shares of stock in the Peninsular Transit Company.” The defendant Marsh, administrator, answered, admitting some of the allegations of the hill to be true, and as to the others the answer alleged that he had no knowledge, and left the complainants to their proofs. The other defendants, legatees mentioned in the will, answered, admitted the allegations of the bill to be true, and asked that the prayer thereof be granted. Proofs were taken in open court, which granted a decree according to the prayer of the bill, and construed the will to mean that the expression in the third clause, “12 shares of stock in the steam barge John Oades,” meant “240 shares of stock in the Peninsular Transit Company,” and that the other clauses should be similarly construed. Prom this decree the administrator appeals. The further statement of essential facts will be found in the opinion.

      Oonely & Taylor, for complainants.

      Otto Kirchner, for appellant.
   Grant, J.

(after stating the facts). The learned counsel for the complainants insist that the case comes within the rule as stated by Wigram in his fifth proposition :

“ For the purpose of determining the object of a testator’s bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator, and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will. * * * Examples illustrating the fifth proposition above stated might be multiplied without end. They appear to justify the conclusion that ‘ every claimant under a will has a right to require that a court of construction, in the execution of its office, shall —by means of extrinsic evidence—place itself in the situation of the testator, the meaning of whose language it is called upon to declare.’ It follows that if, with the light which that situation alone affords, the testator’s meaning can be determined by a court, the court which so determines does, in effect, declare that the testator has expressed his intention with certainty, or, in other words, that his will is free from ambiguity. There is no other criterion of legal certainty in a will.” Wig. Wills,'142, 161, 162.

See, also, 1 Jarm. Wills, 422, 423 (6th Ed. 428); Tuxbury v. French, 41 Mich. 7; Dakin v. Dakin, 97 Mich. 290.

The learned counsel for the appellant contends that the decree was not, in effect, a construction of the will, but a reformation of it; that there is no ambiguity in its provisions ; and that, therefore, it comes within the rule stated by Schouler:

“We may lay it down, then, at the outset, that where the language employed in the will is clear, and of well-defined force and meaning, extrinsic evidence of what Avas intended in fact cannot be adduced to qualify, explain, enlarge, or contradict this language, but the will must stand as it was written.” Schouler, Wills, § 568.

See, also, 1 Redf. Wills, chap. 10, § 39; Wilkins v. Allen, 18 How. 385.

The rules of law to be applied to the construction of wills are not in dispute, and are correctly stated by these learned authors. The province of the court in each individual case is to determine whether it comes within or without these well-established rules. This leads us to a statement of the facts, about which there is no dispute: Mr. Oades owned no such property as the steam barge John Oades. There was no corporation known by that name. He owned no stock in, or title to, the steam barge John Oades. There was a corporation organized under the laws of this State, known as the Peninsular Transit Company, with 1,880 shares of stock, of the par value of $50 each. Mr. Oades owned 600 shares of this stock. The sole property owned by this corporation was this barge, which he and his son had formerly owned, and had transferred to the corporation. When the stock was issued, he asked to have his shares issued to him in $5,000 lots, and six certificates were issued in accordance with this request. Before the company was organized, and it was not determined what the par value of each share should be, Mr. Oades spoke of his interest as shares of $1,000 each. After the organization and the issuance of the certificates, he spoke of and treated them in the same manner. When he drew his will, he handed to the scrivener a memorandum of his assets, in which he referred to this stock as “30 shares-stock steamer John Oades, $30,000.” This represented the entire amount of his stock in the corporation. Other memoranda were produced, in which he spoke of it in the same manner. The evidence leaves no doubt but that he always spoke of and treated a share as being of the par value of $1,000.

It is apparent that extrinsic evidence must be resorted to in order to identify this property described in the will, and which constituted the great bulk of his assets. This, of necessity, opened the door to the admission of testimony which would enable the court to “put itself in the place of the testator, by looking into the state of his property- and the circumstances by which he was surrounded when he made the will.” Counsel for the appellant contends that when it is shown that this property was transferred to a corporation, and that he had shares in that corporation, the expression, “shares of stock in the steam barge John Oades,” means the same thing as the shares of stock in the corporation. The terms of the will do not say so, and, in our judgment, refute this conclusion. It is evident upon the face of the will that Mr. Oades intended to substantially dispose of his entire estate by specific bequests. This is manifest from clauses 14, 15, and 16. By clause. 15 he provided that, if there should be any surplus after the specific legacies, $150 should be given to Mrs. Collins, $200 to a sister-in-law, and $200 to a niece; and, should there be any deficiency to meet the last bequest in full, then the same should be made pro rata to the amount remaining. The term used in the sixteenth clause, “ any residue or remainder,” implies naturally that he did not anticipate that there would be much, if any, residue. . This conclusion is still more manifest from his own memorandum of his assets and liabilities. Under the construction of the appellant, the most singular and unnatural results would follow, and certain provisions of the will appear absurd. Is it conceivable that he intended to give his unborn child only $200 ? Or that he intended to bequeath to his two sisters only one share of the stock of the Peninsular Transit Company, worth only $50, for life, and upon their death to be divided among four ? He evidently intended to make some liberal provisions for the support of his wife and the child yet unborn. He was possessed of an estate worth about-$40,000. By this provision, as construed by the appellant, he bequeathed to his wife only $600, in trust for the maintenance of herself and child. It is impossible to believe that he intended any such inadequate provision. It is also manifest that he intended to make among his children and other objects of his bounty an equitable division of all his property, and reasonable provisions for the proper support and maintenance of his wife. The result of appellant’s contention would be that he intended to cut his own children off with a mere pittance, and leave the bulk of his entire estate to his wife, who had a child by a former marriage. We think it established beyond controversy that the testator, in making this will, treated those 30 shares as constituting his entire interest in the boat, and his entire stock in the corporation, and that the expression, “one share of stock in the steam barge John Oades,” was understood and intended by him to mean 20 shares of stock in’the corporation. It does not appear “from the four corners of the instrument” what is meant by the language used, but the extrinsic evidence clearly shows what the testator meant by it, and courts should so construe the will. This is not in conflict with the many cases cited by appellant’s counsel.

The decree is affirmed, with costs to the complainants.

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


text:
    HARRAH v. DOHERTY.
    1. Bills and Notes—Liability of Successive Indorsers.
    Successive indorsements of negotiable paper prima facie import, as between the several indorsers, a several and successive, and not a joint, obligation, whether the indorsements be made for accommodation or for value received, though it may be shown aliunde that the undertaking of the several indorsers is in fact joint.
    2. Same—Subsequent Agreement—Consideration.
    An agreement by a subsequent accommodation indorser of a note with a prior accommodation indorser, after maturity of the note, to pay one-half thereof, is without consideration, and of no binding effect, in the absence of a precedent agreement changing the liability of the respective indorsers, as between themselves, from that imported by their successive indorsements.
    3. Same—Evidence—Admissions.
    An admission by a subsequent indorser of a note that he-signed under an agreement to become liable as cosurety is not established by evidence merely that he told the holder, after maturity, that he would see the prior indorser, and arrange so that the latter and himself would pay the note.
    Error to Wayne; Smith (George W.), J., presiding.
    Submitted October 9, 1896.
    Decided December 18, 1896.

      Assumpsit by Charles W. Harrah against Patrick F. Doherty to recover one-half of the amount of a promissory note indorsed by both parties and paid by the plaintiff. From a judgment for plaintiff, defendant brings error.
    Never sed.

      James H. Pound (Edivard H. Kennedy, of counsel), for appellant.

      John J. Jackson (George W. Radford, of counsel), for appellee.
   Montgomery, J.

On November 10, 1894, one John T. McKeown made a note fpr $230, payable to the order of plaintiff. This note was indorsed by plaintiff for Mc-Keown’s accommodation, and was subsequently indorsed by defendant, also for the accommodation of the maker; both indorsements being made before the note was discounted. When the note matured, it was protested for nonpayment, and notice given to the indorsers. Plaintiff afterwards paid the note, and seeks to recover contribution from the defendant. The testimony offered by plaintiff tended to show that, before he indorsed the note, McKeown agreed to procure another indorser; but there was no evidence that this agreement was brought home to the notice of defendant, or that defendant in any way undertook to bind himself in other form than as the indorsement indicated. The plaintiff also offered testimony tending to show that after the note matured, the maker having in the meantime died, the defendant agreed with him,-the plaintiff, to pay one-half of the note, but ^that he subsequently failed to do so, and that plaintiff thereupon made the payment and brought this suit.

The circuit judge charged the jury as follows:

“The evidence is conclusive that subsequent to plaintiff’s indorsement, at a later time and date, when plaintiff was not present, but very likely at his request, McKeown, the maker, solicited and obtained the indorsement of defendant, Doherty, who also indorsed it as an accommodation to McKeown.. * * * Upon the note itself their names appear as successive indorsers. I think the law of Michigan, as it now stands, will hold them to be indorsers, and not cosureties. In my view of the case as it stands, the verbal statements and understandings of each of these parties, as testified to and had with McKeown when the indorsement was had, are of no importance. The note itself appeared to be drawn when the note was negotiated by McKeown at the bank. The defendant, therefore, would not, upon the note itself, or by reason of the conversation with McKeown, be in law held liable to contribute or refund in this suit one-half its amount.”

This view of the law is fully sustained by the decisions of this court. In McGurk v. Huggett, 56 Mich. 187, upon facts almost identical with those in the present case, the plaintiff sued as a last indorser, and was permitted to recover. It was said:

“Successive indorsers to commercial paper do not, in this State, by virtue of such relation alone, stand in the situation of sureties to each other, and are not liable to contribution.”

This is not only the rule in Michigan, but is the general rule elsewhere. In'l Daniel, Neg. Inst. § 703, the rule is correctly stated:

“When several persons indorse a bill or negotiable note in succession, the legal effect is to subject them as to each other in the order they indorse. The indorsement imports a several and successive, and not a joint, obligation, whether the indorsements be made for accommodation or for value received, unless there be an agreement aliunde different from that evidenced by the indorsements.”

While there is no doubt that it may be shown that the undertaking of the several indorsers is that of joint indorsers (see Phillips v. Preston, 5 How. 288; Farwell v. Ensign, 66 Mich. 600), yet in the present case there is no evidence bringing notice home to Doherty of any attempt by the plaintiff to limit his responsibility, as it was evidenced upon the face of the paper.

The circuit judge, however, after giving the rule as above stated, further charged that if defendant recognized his liability, and saw fit to obligate himself to share the loss of plaintiff, plaintiff would be entitled to recover one-half the amount paid by him on the note. Plaintiff’s counsel rely, to sustain this instruction, upon the cases of Phillips v. Preston and Farwell v. Ensign, above cited. These cases fall short of sustaining plaintiff’s contention. In Phillips v. Preston it appeared that there was an agreement between the plaintiff and defendant to become indorsers of certain notes, and divide between them any loss. As was said:

“ The whole claim proceeds on the collateral agreement, and there is no pretense of grounding the suit, as holder or indorsee, on any promise contained in. the notes, or in the indorsements on them. There is also a good consideration for this collateral agreement. It is the promise of the plaintiff beforehand to lose one-half if the defendant would become surety with, him and lose the other half, and the actual payment afterwards of the whole by the plaintiff.” *

The case of Farwell v. Ensign was similar. But in the present case there was no agreement whatever between the plaintiff and defendant until the liability of both became fixed. The relation of plaintiff to the note was in no way changed by the alleged promise of defendant. His obligation remained the same as before. There was no consideration upon which to base the alleged promise, and the court was in error in submitting the case to the jury upon this theory.

Plaintiff offered testimony to show that, after the note matured, Doherty went to the bank in which it was held, in response to a letter, and said, in a conversation with the president of the bank, that he was going over to see Harrah, and make arrangements so that he (Doherty) and Harrah would pay the note; and it is contended that this conversation amounts to an admission that he (Doherty) had signed the note under an agreement to become liable as cosurety. It is sufficient answer to this to say that the circuit judge did not submit the case to the jury on any such theory, and that, as the testimony was disputed, we are not able to say that the jury found that such a conversation occurred; but, further than this, we do not think the testimony of itself sufficient to establish that there was any agreement to share the responsibility. There was no other evidence, aside from this, of any agreement of that nature. Under his indorsement, Doherty was primarily liable to the bank, and the statement which he made is entirely consistent with his true relations to the paper.

The case of Shufelt v. Moore, 93 Mich. 564, it is urged, should be decisive of the present case. But that case is clearly "distinguishable. Coolidge was surety for Moore on a pre-existing debt. It was desired to get a further accommodation. Coolidge refused to indorse unless Moore should secure a cosurety. • The opinion, at page 568, states:

“Coolidge did not consent that his liability upon the judgment should stand, nor did he contemplate that he should be the sole surety upon the note in question. Shufelt did not become surety because the creditor refused to accept of Coolidge, but because Coolidge refused to take the entire responsibility. He did not become surety for Moore and Coolidge, but Coolidge and Shufelt became cosureties for Moore. In fact, Shufelt first signed the obligation of suretyship, which was individual in character.”

In that case there was an agreement antedating the indorsement, fixing the responsibility of the indorsers, and the case falls within the principle announced in Phillips v. Preston and Farwell v. Ensign. In the present case no such agreement was found by the jury, but a recovery was permitted on a naked promise, made after the liability was fixed, and upon no consideration passing to defendant.

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

The other Justices concurred.


text:
    HITCHCOCK v. MISNER.
    Homestead—Abandonment—Evidence of Intention.
    Complainant filed a bill to set aside an attachment levy upon property alleged to be his homestead. It appeared that he had vacated the premises a year and a half before the levy, and, with his family, had removed to a house occupied by his father, and had accepted from the latter a deed to the premises mentioned. Complainant claimed that the removal was necessary on account of his father’s ill health, and was for a temporary purpose; that he never intended to abandon his homestead; that he had agreed to sell the property deeded to him by his father, and to pay the latter the surplus remaining after reimbursing himself for certain expenditures. Held, that the facts shown did not necessarily constitute an abandonment of the homestead so as to render it subject to attachment.
    Appeal from Muskegon; Russell, J.
    Submitted October 20, 1896.
    Decided December 18, 1896.
    Bill by Joseph A. Hitchcock against Porter P. Misner and others to set aside an attachment levy. From a decree for complainant, defendants appeal.
    Affirmed.

      Nelson DeLong, for complainant.

      Brown & Lovelace, for defendants.
   Moore, J.

This is a proceeding to set aside an attachment levy made by defendants upon one-half of a city lot in Muskegon. The record shows that the attachment was made October 5, 1895, by creditors of a firm of which complainant was a member. This half lot, which was known as “No. 12 Muskegon Avenue,” was bought by complainant, who was then á married man, in 1890. It was occupied by himself and family for about 3£ years. About a year and a half before the levy, complainant and his family moved to No. 53 Muskegon avenue, into a house then occupied by his father and his family, and continued to reside there until after the levy upon the property at No. 12 Muskegon avenue was made. At the time complainant moved to No. 53 Muskegon avenue, his father deeded the property located there to him. There was a mortgage upon the property of about $800, and some back taxes. It is the claim of complainant that he never intended to abandon his homestead at No. 12, but that he and his family always regarded it as his homestead; that he moved to No. 53 to enable him to care for his father, who was very old,—the house at No. 12 not being large enough to accommodate both families. It is also his claim that, when No. 53 was deeded to him, his father was not able to pay the mortgage and taxes, and was afraid he would lose the property. He also claims that the arrangement between his father and himself at the time of the making of the deed was that the complainant should pay the mortgage and taxes, and that, when he could sell the property without sacrificing it, he was to do so, and, after reimbursing himself, was to pay the surplus to his father; that he expected to make the sale, and to carry out his agreement. It was the claim of the defendants that, when complainant moved to No. 53 Muskegon avenue, he intended to abandon his home at No. 12 Muskegon avenue, and that his return to No. 12 was because he was afraid that his creditors would levy upon it, and was for the purpose of defrauding his creditors; that by giving mortgages to his mother-in-law upon both pieces of property for an amount largely in excess of his debt to her, which mortgages were^ signed by complainant’s wife, he has shown his purpose to defraud his creditors, and that these acts of the complainant and his wife characterize them as persons whose testimony ought not to be believed. The case was tried in open court, and the circuit judge granted a decree according to the prayer of the bill. The complainant, his wife, and his father all gave testimony tending to establish the truth of complainant’s claim. The defendants controverted this testimony.

In Hoffman v. Buschman, 95 Mich. 540, Justice Hooker held that “the retention of homestead rights, though the party live elsewhere temporarily, is possible. It is largely a matter of continuing intent, and i's a fact to be proved like any other fact.” In Kaeding v. Joachimsthal, 98 Mich. 78, it was held, in a case where the parties had been absent from the homestead six years, that, where there was a continuing intent to return to their home after the object of their temporary absence should have been attained, such intent protected the homestead. The cases are collated in the decision just quoted. See, also, the case of Myers v. Weaver, 101 Mich. 477. The circuit judge had the witnesses before him. While there were some things done by the complainant, in his effort to keep his creditors from reaching his property, that are open to criticism, we are not inclined to say that the conclusion of the circuit judge that the property was exempt from levy is erroneous.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    MUNROE v. GODKIN.

    1. Witnesses—Expert Testimony.
    In an action to recover the contract price for the construction of a dock, where it is pleaded that, owing to faulty construction, the dock gave way and was carried out into the lake, the testimony of a witness as to what, in his opinion, was the cause of its going out, is properly excluded, in the absence of anything to show his qualifications.
    2. Evidence—General Reputation.
    The fact that a party to a civil action is asked, on cross-examination, questions implying, by inference, wrongdoing upon his part, does not entitle him to introduce testimony as to his general reputation.
    3. Trial—Remarks oe Counsel.
    A judgment will not be reversed because of statements made by the attorney for the prevailing party, in a colloquy between counsel, reflecting upon the opposite party, where the remarks were not excepted to at the time, and the court, of its own motion, instructed the jury that statements or charges of counsel, unsupported by the testimony, should be disregarded.
    Error to Schoolcraft; Steere, J.
    Submitted October 21, 1896.
    Decided December 18, 1896.

      Assimpsit by John Munroe, Jr., against John God-kin, for work and labor performed. From a judgment for plaintiff, defendant brings errror.
    Affirmed.

      Chester L. Collins, for appellant.

      Henry Hoffman, for appellee.

       Rehearing denied January 16, 1897.

   Moore, J.

Plaintiff sued defendant, declaring on the common counts in assumpsit. Defendant pleaded the general issue, with notice of set-off and recoupment. A number of witnesses were sworn on each side. The case was submitted to a jury, who rendered a verdict in favor of plaintiff. Defendant appeals. The counsel who appears for defendant in this court did not take part in the trial of the case in the circuit court. All the assignments of error may be considered under three heads:

First, what occurred between counsel during the cross-examination of defendant. ’

Second, the refusal of the court to allow counsel for defendant to prove the general reputation of the defendant.

Third, the refusal of the court to allow Mr. "Winter to testify what, in his opinion, was the cause of the dock’s going out.

The record does not show that Mr. Winter was an expert, nor does it show such knowledge upon his part as would entitle him to give opinion evidence as to the cause of the failure of the dock to stand.. It was not error to exclude his testimony.

As to the second group of errors assigned, no testimony had been offered attacking the general reputation of Mr. Godkin. The most that had been done, as will appear later, was to ask him questions implying, by inference, wrongdoing upon his part. His answer was received, and it denied any wrongdoing. We know of no rule of law that would authorize proof of general reputation in a civil cause under such circumstances.

As to the first group of errors, the record shows the following to have occurred:

Q. Where were you born and brought up ?

“A. I was born in Canada, near Toronto.

“ Q. In Canada ?

“A. Yes, sir.

Q. And you lived there with your father? Your father owned a farm there in Canada?

“A. Yes, sir.

Q. And you engaged in business there in Canada?

“A. Yes, sir.

Q. In the timber business ?

“A. Yes, sir.

Q. Didn’t you raise money to engage in that business by mortgaging your father’s farm ?

“A. No, sir.

“ Q. Do you swear that you didn’t execute a mortgage on your father’s farm, and forge your father’s name to it?

“A. I swear I never did.

“Mr. Humphrey: I think that is an outrage. You don’t propose to attempt to prove such a thing, and you know you can’t prove it.

“Mr. Hoffman: If you will permit me to prove it, I will do it.

“Mr. Humphrey: Well, sir, we will permit you to prove it, and defy you to prove it. You know you can’t prove it, and it is an outrage on this man to ask such a question.

“Mr. Hoffman: I have been informed that that is the truth.

“Mr. Humphrey: You know you 6an’t prove it.

“Mr. Hoffman: I know I can do it, and, if this witness testifies to the truth, he will admit it.

“Mr. Humphrey: Well, I object to any such question, unless they say they will follow it up by evidence that it is so.

“Court: Well, that is collateral matter, and within certain limits such questions are allowed. When it reaches the limit, we will see that it is stopped.

“Q. How old were you when you commenced business?

“A. Seventeen. ■

‘ ‘ Q. How large a business ? How much money did it involve ?

A. I think we made about $1,300 the first year.

! ‘ Q. How much capital did it take ?

“Mr. Humphrey: I object to that,'as being entirely immaterial and irrelevant.

Mr. Hoffman: I want the jury to know what kind of a man this is that is testifying here.

“ Mr. Humphrey: Suppose it took $ip0,000, and suppose it took $15. I object to the question, and ask that the objection go on record, and I ask a ruling.

“ Court: Of course, in cross-examination, we cannot always compel counsel to disclose his purpose. I don’t see the purpose at the^present time, but there may be one. Within proper limits, we have to allow such an examination to go on for a limited time. Unless something discloses itself, we shall have to restrain this line of inquiry.

11 Mr. Hoffman: I seek'only to be fair. I don’t want to do anything but be fair, and my only purpose in asking these questions is not for the purpose of worrying the witness or filling in the time, but for the purpose of showing to the jury the character of the man who is testifying now. But, at the suggestion of the court, I will drop that, and enter upon another subject of cross-examination.”

It is urged with much zeal on the part of the defendant that he was prejudiced by what occurred, and upon that proposition he cites a large number of cases. It will be noticed that the most objectionable language used was in a colloquy, not between the counsel and witness, but between the respective counsel; each of them making assertions that it would have been well to omit, and counsel being alike in fault. No request was made of the court to correct any impression the jury might get from the colloquy prejudicial to the defendant, and no exceptions were taken to what occurred. The trial judge, however, upon his own motion, used, in his general charge, this language:

“Your province is to say what the facts are in this case from the testimony which has been offered, and you are expected to decide that, regardless of who are the parties to the litigation, and regardless of their opinions, or the opinions of counsel who have conducted the respective sides of the litigation. If, as it is claimed, any assertions of fact, any statements, have been made by counsel, unsupported by the testimony, you should disregard them. Any charges, criminations, or recriminations of counsel, outside of the testimony introduced, should cut no figure in° this case. The province of the attorneys is to prepare the case, to present the testimony before the jury, and then, they having had time and experience to carefully consider the whole case, they appear before you, and from their standpoint argue the matter. That is, as a rule, of great assistance to the jurors, and their arguments should not be disregarded. It is the duty of the juror to sit and carefully listen and weigh, the arguments of counsel, and, as far as their theories appeal to their better judgment, to adopt them. But mere assertions made by counsel, not supported by evidence in the case, should cut no figure in the case.”

The charge covered the questions at issue by the pleadings and proofs, and stated the law very clearly and correctly. The record does not disclose such error as would justify a reversal of the case.

Judgment is affirmed.

The other Justices concurred.