text:
    SLOMAN v. GOEBEL BREWING CO.
    Trial — Instructions—Requests to Charge.
    Refusal of requested instructions is not error where the court has properly stated the rules of law applicable to the case, and fairly submitted the questions involved.
    Error to Wayne; Frazer, J.
    Submitted October 6, 1898.
    Decided November 1, 1898.
    Garnishment proceedings by Morris H. Sloman against the Goebel Brewing Company, as garnishee of Louis J. Ouellette. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Sloman & Groesbeck (Emanuel T. Berger, of counsel), for appellant.

      Ralph Phelps, Jr. (William B. Jackson, of counsel), for appellee.
   Moore, J.

The plaintiff had a claim against Louis J. Ouellette, which he sued, and upon which he afterwards recovered judgment. He also garnished the Goebel Brewing Company, and from a judgment in favor of defendant he has appealed.

In 1895, Ouellette was engaged in the saloon business in Detroit. During a portion of June and July, 1895, he had a bar and restaurant at the Detroit Driving Club during the races. The garnishee defendant paid for him a license fee of $500, and became his surety to the driving club to the amount of $5,000 for the payment of the rent, which was a day. The brewing company also furnished Ouellette with a large amount of beer, and others furnished other supplies. By agreement of the parties, one Flynn, who was paid by Ouellette, received the money resulting from the business, and paid the rent, and handed the balance of the receipts to the attorney of the brewing company. During June plaintiff consigned to Ouellette about $2,400 worth of wines and liquors. July 9th, Mr. Ouellette was indebted to the Goebel Brewing Company, to Harrington & Ouellette, and to Barclay Smith. He gave to them a note for $2,000, due August 1st, and to secure its payment executed a mortgage on all his stock and property at the driving club, except the goods bought of the plaintiff, and, by consent of the mortgagor and mortgagees, Flynn managed the business, and continued to do so until the races ended. The plaintiff found and took possession of about one-half of the goods consigned by him, but could not find $1,100 or $1,200 worth of them. July 25th he sued out a writ of attachment, and levied upon the stock. Before the stock was removed, and on the same day it was levied upon, it was agreed verbally that the attachment should be released upon the payment of $150, which was paid, and that on the following morning some arrangement should be made at the office of the attorney of the brewing company as to the disposition of the balance of the claim. During the night Ouellette made a bill of sale of all the property to the Goebel Brewing Company, and when the parties met at the office of. the attorney, according to the agreement made the day before, the brewing company claimed to be in possession of the property by virtue of the bill of sale. On the same day suit was brought by the plaintiff, and a garnishee process was served upon the brewing company, which made a disclosure denying it had any property, money, or effects, or was indebted to Ouellette. An issue was framed, and tried by a jury, who found in favor of defendant.

It is claimed the trial judge erred in refusing to give plaintiff’s requests. The court endeavored to instruct the jury, in a general charge, as to the law applicable to the case, and refused all of the plaintiff’s requests. His charge was quite full, and properly stated the law in relation to the matters to which his attention was directed by the requests to charge. It will be necessary to consider but two requests.

The judge was asked to charge the jury:

“On the other branch of the case, I charge you that, whether the Goebel Brewing Company received or obtained property under the circumstances which I have stated or not, if you find that, at the time of the service of the writ of garnishment in this case upon it, it was in possession of goods, credits, chattels, moneys, or effects belonging to the defendant Ouellette, upon which it had no superior lien or claim, or at that time was indebted to Ouellette, then the plaintiff is entitled to recover the amount and value thereof.”

In his charge he failed to say anything to the jury about the liability of the brewing company in case it was indebted to Ouellette. Was this error? The affidavit for the writ was based, not only upon the possession of money and property, but also upon the indebtedness of the brewing company to Ouellette. As already stated, the disclosure made by the company denied it had any money or property belonging to Ouellette, or was indebted to him. The record shows that when the chattel mortgage was given, July 9th, Ouellette was indebted to the brewing company in a large amount, and it also shows he was indebted July 25th, when the attachment was released. There was nothing said in the progress of the trial, by counsel or witnesses, from which it would be inferred there was any claim of liability except for goods, chattels, moneys, or effects which came into the hands of the brewing company under the proceedings already stated, and this will doubtless account for the court not having more to say in his charge in relation to any indebtedness of the brewing company.

The court was asked to charge the jury as follows:

“The plaintiff claims in this case to recover upon two grounds: First; he claims that, at the time of the service of the writ of garnishment upon the defendant, the Goebel Brewing Company had in its possession, custody, or control goods and moneys, the property of the principal defendant, Louis J. Ouellette, which he is entitled to have applied upon his claim and judgment against the principal defendant, Louis J. Ouellette; second, that, at the time of the service of the writ of garnishment, the defendant the Goebel Brewing Company had in its possession property of the principal defendant, Louis J. Ouellette, which they held by conveyance or title that was void as to the creditors of the defendant. If the plaintiff shall have satisfied you, by a fair preponderance of evidence, of either of these two propositions, he is entitled to recover in this action.
“ It is the law of this State that if any person garnished (and that applies to a corporation as well as an individual) shall have in his possession any property, goods, chattels, credits, moneys, or effects of the principal defendant which he holds by conveyance or title that is void as to the creditors of the principal defendant, or if any person garnished shall have received and disposed of such property of the principal defendant which is held by conveyance or title that is void as to the creditors of the defendant, he may be adjudged liable as garnishee on account of such property, and for the value thereof, although the principal defendant could not have maintained an action therefor against him.”

Counsel cite 3 How. Stat. § 8059; Heineman v. Schloss, 83 Mich. 156; Gumberg v. Treusch, 103 Mich. 543.

The court did not give these requests in the language of the counsel, but he did charge as follows:

“It is claimed on the part of the plaintiff in this suit that this bill of sale was not a bona fide bill of sale; that is, that it was fraudulent, and therefore void. I charge you that, in order to make this bill of sale fraudulent or void in this case, it is necessary that it should be executed with an intent to hinder, delay, or defraud creditors. If it was executed for the purpose of securing bona fide indebtedness, it would not be fraudulent, no matter if it did in effect hinder or delay, or defraud creditors; but if executed, not to secure a bona fide indebtedness, but for the purpose of hindering, delaying, and defrauding creditors, it would be void in law, and no title would pass under it by virtue of the bill of sale, if you should find it to be fraudulent, — that is, if it was not executed for the purpose of paying a bona fide indebtedness owed by Mr. Ouellette to the Goebel Brewing Company.”

' It was the claim of the brewing company that it acted bona fide; that the bill of sale was made to secure payment of an actual indebtedness; that it was not fraudulent; and the jury found in favor of its claim. We think the court properly stated the rule of law, and fairly submitted the question of the bona fides of the transaction.

The other questions have been considered, but will not be discussed.

Judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    GRIFFIN v. GRIFFIN.
    Equity Practice — Dismissal op Bill — Cross-Bill.
    Where a cross-bill sets up additional facts relating to the subject-matter of the original bill, and asks affirmative relief upon them, the dismissal of the original bill will not carry with it the cross-bill.
    Appeal from superior court of Grand Rapids; Burlingame, J.
    Submitted October 7, 1898.
    Decided November 1, 1898.
    Bill by Michael F. Griffin against Thomas Griffin for a partnership accounting. Defendant filed a cross-bill, impleading Gertrude T. Griffin. From a decree for defendant upon the cross-bill, Gertrude T. Griffin appeals.
    Affirmed.

      D. IS. Corbitt (Ray & Cor dill, of counsel), for appellant.

      Wolcott & Ward, for defendant.
   Hooker, J.

The bill in this cause alleged a partnership and prayed an accounting between Michael F. Griffin and the defendant, Thomas Griffin. The latter filed an answer, denying the partnership, and alleging that the transactions set forth in the bill created a trust in his favor, and that complainant’s wife, Gertrude Griffin, was so connected therewith as to make her a necessary party, and she was brought in. Her demurrer to the cross-bill was before us in the case of Griffin v. Griffin, 112 Mich. 87, and was overruled. She afterwards answered, as the complainant had previously done. Upon the hearing the complainant voluntarily caused his bill to be dismissed, and defendant Gertrude Griffin claimed that the cross-bill should fall with it; but the trial court held otherwise, and proceeded to hear the case. A decree was rendered in favor of the complainant in the cross-bill, Thomas Griffin. Gertrude Griffin has appealed.

Most of the questions of law applicable to this case were disposed of upon the former hearing. The claim that the dismissal of the original bill carried with it the cross-bill cannot be sustained, as that rule does not apply to cases where the cross-bill sets up additional facts relating to the subject-matter of the original bill, and asks affirmative relief upon them. See City of Detroit v. Detroit City R. Co., 55 Fed. 569; 5 Enc. Pl. & Prac. 663, and note. McGuire v. Van Buren Circuit Judge, 69 Mich. 593, impliedly recognizes this rule.

The testimony shows that M. F. Griffin was a lawyer, and that his brother, Thomas, came to reside with him, and engaged in business upon his own account, loaning money and dealing in real estate. Gertrude Griffin, the wife of M. F. Griffin, inherited some property, of which her husband appears to have had a general management as her agent, and the business affairs of the two brothers and Gertrude became involved. Finally, M. F. Griffin transferred the property that was in his name, or the most of it, to his wife, and she began an action in attachment against Thomas, and M. F. Griffin filed the original bill in this cause, alleging that he and Thomas were copartners. The circuit judge found that no partnership relation existed, and that Gertrude Griffin held property justly belonging to Thomas, and upon an accounting made a decree for a balance in favor of Thomas. The case involves a number of items and complicated transactions, which need not be discussed at length, as we think that the decree of the superior court was as favorable to the defendant Gertrude Griffin as she should expect, and the other parties have not appealed.

The decree will therefore be affirmed, with costs.

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


author: Moore, J.

text:
    BELDEN v. BLACKMAN.
    1. Equity Practice — Bill to Enforce Judgment — Demurrer— Attorney as Complainant — Judicial Notice.
    The Supreme Court will not take judicial notice that the complainant in a bill to enforce a judgment is the same person as one hearing the same name who is an attorney of the court, upon a demurrer which sets up the statute (2 How. Stat. § 7185) prohibiting attorneys from purchasing claims for the purpose of instituting suit thereon.
    2. Same.
    Nor, conceding the identity of the parties, will the court assume, from the fact that the bill demurred to was filed three days after the purchase of the judgment by complainant, that the purchase was for the purpose prohibited by the statute.
    8. Same — Statements in Demurrer — Conolusiveness. ’
    While complainant is not bound by a statement of fact in a demurrer, defendant cannot complain if the court, in passing upon the demurrer, assume^ it to be true.
    4 Limitation of Actions — Cause Arising Without State.
    The saving to the creditor, in the statute of limitations, of the time that the debtor is absent from the State, applies to causes of action which accrue without the State between nonresidents.
    Appeal from superior court of Grand Bapids; Burlingame, J.
    Submitted October 7,1898.
    Decided November 1, 1898.
    Bill by William P. Belden against B. Am.elia Blackman, executrix of tbe last will and testament of Ezekiel Jewett, deceased, and George W. Barker, a legatee, to restrain the payment of a legacy. Prom an order overruling a demurrer to the bill, defendant Blackman appeals.
    Affirmed.

      McGarry & Belden, for complainant.

      G. H. Gleason, for appellant.
   Moore, J.

This is an appeal from an order overruling a demurrer to a bill in chancery.

The bill alleges, in substance, that complainant is the owner of a judgment rendered before a court of record in the State of New York in December, 1877, for upwards of $500, at the suit of one Watkins, against George W. Barker, and that said judgment is still in full force and effect, and of the present value of $1,200; that in August, 1897, it was assigned for a valuable consideration by Watkins to complainant. The bill further states that the defendant is executrix of the last will and testament of Ezekiel Jewett, deceased; that by the terms of the will said George W. Barker is entitled to a legacy of $500, and may be entitled to a larger sum, and, unless restrained by the order of the court, the executrix will pay over to Barker said sum of money. It is further stated that Barker is a resident of Arkansas, and has no property in the State of Michigan subject to garnishment or other process, and is and has been insolvent ever since the rendition of said judgment; that complainant will suffer irreparable injury unless the executrix is restrained from paying the legacy. The bill prays a receiver may be appointed to take charge of said legacy, and to pay the same to the satisfaction of the claim of complainant. It also contains a general prayer for relief. The bill is signed, “William P. Belden, Complainant. Walbridge & Belden, Solicitors for -Complainant.”

The reasons stated in the demurrer, so far as it is necessary to repeat them here, are as follows:

“1. Because it appears by the said bill of complaint that the said complainant is an attorney at law and solicitor in chancery and a counselor, and that he purchased the judgment referred to in said bill of complaint on the 28th day of August, 1897, with the intent and for the purpose of bringing suit thereon; and that this suit, based on said judgment, was begun by him in this court on the 31st day of August, 1897, — all of which is contrary to the provisions of the statutes of the State of Michigan, and especially contrary to the provisions of section 7185 of volume 2 of Howell’s Annotated Statutes, being the statutes of the State of Michigan. * * *
“4. Because, if the said complainant and the sa’d Ira W. Watkins, or either or both of them, ever had or obtained in any court of the State of New York a judgment against said, defendant George W. Barker to the amount, including damages and costs, of $506.97, or in any other amount, — which this defendant doth in no sort admit, — the said judgment was obtained more than 19 years before the same was assigned to said complainant, and more than 19 years before the said bill of complaint was exhibited in this honorable court; and the said defendant does not now reside, and has never resided, in the State of Michigan, and has in no way recognized said judgment, or paid anything thereon, within said 19 years; and, if the said judgment ever had any binding force or effect, it is now wholly outlawed, illegal, and void, and cannot be made the basis of an action in any court in the State of Michigan.”

As to the first of these reasons: It does not appear in the bill that complainant is an attorney at law and solicitor in chancery, but it is urged complainant is a solicitor of this court, and the court will take judicial notice of its own officers, including attorneys, and their signatures and official acts; citing Norvell v. McHenry, 1 Mich. 233; Johnson v. Delbridge, 35 Mich. 439. These authorities do not sustain the doctrine as broadly stated by counsel. There is nothing to show that the William P. Belden who is the complainant is the same William P. Belden who is an officer of this court. Nor is there anything to show that the purpose for which the judgment was assigned to him is the one prohibited by the statute.

As to the second reason stated: If it was necessary to state in the bill sufficient facts to prevent the statute of limitations from running against this claim, the statements contained in the demurrer supply that defect by showing the defendant does not now, and never has, resided in the State of Michigan. While the complainant is not bound by the statement of facts contained in the demurrer, the defendant cannot complain if the court assumes they are true. It is said by counsel the statute does not apply to a right of action which accrued without the State between parties who were at the time nonresidents, but applies only to actions that accrue within the State. The courts of New Jersey and Texas sustain the doctrine as contended. Our statute is like that of Masachusetts and New York. The statutes of those States have been construed as applying to causes of action which accrued without the State between nonresidents. White v. Bailey, 3 Mass. 270; Wilson v. Appleton, 17 Mass. 180; Bulger v. Roche, 11 Pick. 36 (22 Am. Dec. 359); Carpenter v. Wells, 21 Barb. 593; Bower v. Hathaway, 43 Barb. 214; Miller v. Brenham, 68 N. Y. 83. We think the last-named cases should be followed here.

A bill of complaint similar to this was sustained iEarle v. Kent Circuit Judge, 92 Mich. 285.

The order is affirmed, with costs against defendant, as executrix, to be paid out of the fund belonging to Barker.

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


text:
    H. M. LOUD & SONS LUMBER CO. v. HAGAR.
    1. Taxes — Warrant—Direction.
    A warrant for the collection of taxes is sufficient if directed to the township treasurer of a specified township and county, although it does not contain the treasurer’s name.
    2. Same — Assessment in Wron® Name — Levy and Sale.
    Lands of H. M. L. & Sons Lumber Company, a corporation, were by mistake assessed to “H. M. L. & Sons,” a copartnership. Held, that, under the curative provision of the tax law (Act No. 206, Pub. Acts 1893, § 99), the assessment was valid, and that a levy upon and sale of personal property of the lumber company to satisfy the tax was proper.
    Error to Oscoda; Simpson, J.
    Submitted October 18, 1898.
    Decided November 1, 1898.
    Replevin by the H. M. Loud & Sons Lumber Company against Henry D. Hagar. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      M. J. Oohnine, for appellant.

      John A. McMahon, for appellee.
   Moore, J.

Plaintiff replevied from defendant a wagon which he bought at a sale made by the township treasurer to collect a tax which the treasurer claimed the plaintiff should pay. The case was tried by a jury, who rendered a verdict in favor of defendant. The case is brought here by plaintiff, assigning a number of errors in the trial.

The tax was levied upon several descriptions of real estate, which the plaintiff claims it did not own, but that they were owned by one Vaughn. It claimed that it took the title to the land simply to secure it for advances made to Vaughn, which advances had,been paid, and that it had no further interest in the land. Testimony was given in support of this claim. The supervisor, before making the assessment, examined the records in the office of the register of deeds, and found the title to be in the plaintiff. The record shows the land was deeded to the plaintiff July 8, 1889, by warranty deed, which was recorded July 22, 1889. There is nothing to show, except a parol agreement to convey, but that the title remained in the plaintiff when the assessment was made. The plaintiff did not appear before the board of review, and represent it was not the owner of the land, but, when an attempt was made to collect the tax, it did make the claim. The judge left it to the jury to say whether the plaintiff was the owner of the land or not, and instructed them, if the plaintiff was not the owner, they must return a verdict in its favor. The verdict shows the jury found the plaintiff was the owner.

The warrant to the tax roll was directed, “ To -, Township Treasurer of the Township of Big Creek, County of Oscoda.” It was signed, “James B. Markle, Supervisor of the Township of Big Creek.” Objection was made to this warrant because it did not contain the name of the treasurer as well as his official title. This objection is not well taken. The precise question was raised and decided in First Nat. Bank v. Township of St. Joseph, 46 Mich. 526.

The lands were assessed on the roll to “ Loud, H. M., & Sons,” instead of being assessed to theH. M. Loud & Sons Lumber Company. Plaintiff insists that, while this might be á good assessment as against the land, it would not authorize the treasurer to levy upon personal property belonging to anybody except Loud, H. M., & Sons, and that, as the plaintiff corporation is not the same entity as the partnership which was assessed, the treasurer was not authorized to levy and sell property belonging to the plaintiff. Section 99, Act No. 206, Pub. Acts 1893, provides for just such a contingency as has occurred here. As already stated, the jury found the property assessed belonged' to the plaintiff. The property levied upon to satisfy the tax belonged to it. No injustice has been done plaintiff by levying upon property belonging to it to satisfy a tax upon its property. This question has been before this court in a number of cases, where it was decided against the contention of plaintiff. Petrie Lumber Co. v. Collins, 66 Mich. 64; Michigan Dairy Co. v. McKinlay, 70 Mich. 574; Hill v. Graham, 72 Mich. 659; Fletcher v. Post, 104 Mich. 424; Hinds v. Township of Belvidere, 107 Mich. 664.

These are the principal questions in the case. While the others have had attention, they will not be discussed.

Judgment is affirmed.

The other Justices concurred.


author: Grant, C. J.

text:
    ESCANABA BOOM CO. v. TWO RIVERS MANUFACTURING CO.
    1. Settlement — Construction—Recoupment.
    A written adjustment of accounts between a lumber company and a boom company, which leaves open, as “the sole question” for future determination, whether any price for the. services of the boom company over and above the rate at which payment is made by the lumber company, up to the rate claimed by the boom company, is a “reasonable” price, the lumber company admitting its liability if the reasonableness of the demand shall be determined, precludes the latter-company from afterwards asserting a claim of recoupment for damages occasioned by delay in the performance of the work.
    2. Raeting Charges — Reasonableness.
    The fact that delivery of logs by a boom company was delayed until the fall storms had rendered transportation dangerous has no bearing upon the reasonableness of its charges, since the cost of its services coúld be no less in such season, and the reasonableness of a charge for labor, where no claim is made that it was not well done, depends simply upon the cost of the work and a reasonable profit.

      Error to Delta; Stone, J.
    Submitted October 19, 1898.
    Decided November 1, 1898.

      Assumpsit by tbe Escanaba Boom Company against tbe Two Rivers Manufacturing Company for work and labor. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff is a corporation organized under 1 How. Stat. cbap. 114, and doing business on the Escanaba river. Defendant is a corporation engaged in lumbering on the same stream, from 1892 to 1896, inclusive. Plaintiff fixed a uniform price of 35 cents per thousand feet for booming, assorting, rafting, and delivery of logs. Defendant insisted that 20 cents was a reasonable charge, and up to 1896 had paid only that amount, leaving the price unsettled and their accounts undetermined. On May 13, 1896, the parties entered into an agreement, reciting their differences and the confusion in their accounts on account of such differences, and adjusting them on the basis of 20 cents per thousand, and defendant paying upon that basis. The agreement also stated the amount due each year on the basis of 35 cents, and provided that:
    “The adjustment of said unpaid 15 cents per thousand feet is left for future settlement between the parties, the sole question between the parties, and to be determined, being whether or not any charge above said 20 cents per thousand feet for the work above specified is a reasonable price; and should it be finally determined, either between the parties, or by suit brought upon this contract by the party of the first part before any court of competent jurisdiction, or by arbitration, as shall hereafter be agreed upon between the parties, that any charge above 20 cents per thousand is a reasonable price, then the party of the second part agrees, upon demand, to pay said party of the first part such excess over and above said 20 cents per thousand, up to the amount of 35 cents per thousand feet.
    “It is understood that failure of the party of the first part to render accounts for said unpaid 15 cents per thousand feet, and the giving of receipts in settlement of accounts in which the price of said work as is hereinbefore set forth is reckoned and allowed at the rate of 20 cents per thousand feet, shall not be considered as a waiver of the right of the party of the first part to demand and collect the excess over and above said 20 cents per thousand feet, up to the full amount of 35 cents per thousand feet, as claimed by the party of the first part, and to sue for •the same upon the terms of this contract. ”
    On November 28, 1896, another agreement was made, on account of an omission of the account for 1892. December 17, 1896, another agreement of settlement was made, reciting the first contract and being subject to it.
    This suit was instituted in August, 1897, to recover the 15 cents per thousand. Defendant, with its plea of the general issue, gave notice of recoupment, on the ground that plaintiff should have delivered the logs before September 1st each year, because of the danger in towing logs over Lake Michigan after that time on account of rough weather. Defendant towed its logs in rafts to its mill at Two Rivers, Wis. Defendant claimed to have suffered damages on this account. The circuit court refused to admit any evidence of recoupment.

      George Gallup, for appellant.

      F. I). Mead (F. C. Flannigan, of counsel), for appellee.
   Grant, C. J.

(after stating the facts). We think the ruling of the circuit judge was correct. The agreement settled all the differences between the parties except the price of the work, and left that as “the sole question” between them. The time for defendant to speak of any such claim was when the contract was made. If defendant desired to have its logs delivered earlier, it should have notified plaintiff.

It is suggested that testimony upon the subject of the recoupment was competent in determining the reasonableness of the charge. The cost of rafting, driving, and booming certainly could have been no less after September 1st than before. The reasonableness of the charge depended upon the cost of the work and a reasonable profit. No claim is made that the work was not well done, but only that it was not done within the time it ought to have been done.

Judgment affirmed.

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


text:
    BOGERT v. JACKSON CIRCUIT JUDGE.

    1. Mandamus to Dissolve Injunction — When Lies.
    An application for mandamus to compel the dissolution of an injunction will Jae entertained when questions of law-only are involved.
    2. Injunctions — Paving Assessments — Inequality — Charter Remedy.
    An injunction should not issue to restrain the paving of a street by a municipal corporation,' where the only irregularity in the proceedings relates to inequalities in the assessment, which may be corrected without stopping the progress of the work, under a provision of the charter that, when any such assessment is invalid, the council may make a new assessment for the purpose for which the original assessment was made, whether or not the improvement has been completed or any part of the assessment has been paid.
    3. Same — Facts not Appearing in Bill — Concessions.
    A concession as to the existence of facts not appearing in a bill for an injunction must be regarded as part of the bill.

      Mandamus by James K. Bogert to compel Guy M. Chester, acting circuit judge of Jackson county, to dissolve an injunction restraining the paving of certain streets in the city of Jackson.
    Submitted November 1, 1898.
    Writ.granted November 4, 1898.

      Thomas E. Barkworth, for relator.

      Parkinson & Campbell, for respondent.

       Rehearing denied January 20, 1899.

   Moore, J.

This is an application for a writ of mandamus requiring the dissolution of an injunction restraining the paving of certain streets in the city of Jackson. Ordinarily, we would not entertain such an application, but it appears from the case as presented that the questions involved are questions of law, and for that reason we entertain the application.

About August 1, 1898, Miar McLaughlin and other taxpayers filed a bill in chancery to restrain the city of Jackson from paving portions of two streets in that city. The city of Jackson and Mr. Bogert, who had made a contract with the city to do the paving, were made parties. An injunction was issued by the circuit judge, and upon his refusal to dissolve the injunction this application was made.

No fraud or intentional wrong is charged against any one, but it is claimed the necessary steps were not taken by the common council to authorize it to make this improvement, and to make the assessments against the property of the complainants which it made. The proposed paving would cost over $33,000, about $8,000 of which was to be borne by the city, and the balance by the property owners in a special assessment district. The steps taken by the city were as follows:

March 17, 1898, resolution passed, submitting to the electors proposition for a loan to pay for the improvement.

April 18th, resolution adopted, determining the necessity of the improvement, and directing estimates, plats, and diagrams of the special assessment district to be made and reported.

May 3d, resolution adopted, directing notice of hearing of objections to assessment district.

May 16th, resolution adopted, directing manner of assessment.

June 6th, resolution adopted, directing publication of notice of review of assessment.

June 20th, the assessment rolls were confirmed by resolution.

July 1st, resolution adopted, directing the contract to be made with Mr. Bogert.

The electors authorized the loan; the proper notices were published; the contract was properly let. It is evident from the record that the council attempted to comply with the provisions of the charter. Complainants did not appear before the board of review. The bill of complainants was filed August 1st. When it was filed it was. supposed by the complainants the records did not show that any of the above-mentioned resolutions were adopted by a yea and nay vote, as required by the charter. A further examination of the records of the common council disclosed they were adopted by a yea and nay vote, as required by the charter. The defects in the proceedings which the complainants supposed existed, because the resolutions were not adopted as required, need not be discussed, because they did not exist.

It is urged the common council did not properly submit the matter of the loan to the electors. We think they substantially followed the charter provisions, and that the only irregularities, if there are any, shown by the bill, relate to the inequalities of the assessment. Section 22 of chapter 20 of the charter (Act No. 414, Local Acts 1889) ■ provides:

“Whenever any special assessments, heretofore or hereafter made, shall, in the opinion of the council, be invalid by reason of irregularity or informality in the proceedings, or if any court of competent jurisdiction shall adjudge such assessment to be illegal, the council shall, whether the improvement has been made or not, or whether any part of the assessment has'been paid or not, have power to cause a new assessment to be made for the same purpose for which the former assessment was made. All the proceedings on such re-assessment, and for the collection thereof, shall be conducted in the same manner as herein provided for the original assessment; and whenever any sum, or any part thereof, levied upon any premises in the assessment so set aside, has been paid and not refunded, the payment so made shall be applied upon the re-assessment on said premises, and the re-assessment shall to that extent be deemed satisfied.”

If any injustice has been done the complainants in the matter of their assessment, it is not necessary to stop all of the improvement, andi to delay the city in a proper attempt to improve the streets, or to enjoin the contractor, who in good faith has assembled the necessary material and machinery, from completing his contract. It is entirely competent, under the provisions of the charter, 'to correct any injustice, if any has been done, without delaying the work. Townsend v. City of Manistee, 88 Mich. 408.

If the concession made in relation to the adoption of the various resolutions by a yea and nay vote had appeared in the bill, it would not have stated such a case as, under the law, would authorize the issuing of a writ of injunction. This concession having been made, it must be regarded as part of the bill.

The writ will issue as prayed.

The other Justices concurred.


author: Long, J.

text:
    BARNETT v. SALOMAN.
    1. Debtor and Creditor — Unauthorized Payment — Ratification — Question for Jury.
    A creditor’s statement to his debtor, after the latter has made an unauthorized payment of the debt to a third person, that 'the debt is discharged and the evidence of the same destroyed, does not necessarily show a ratification, its weight being for the jury.
    2. Trial — Deliberations of Jury —Irregular Instructions — Failure to Object — New Trial.
    After the jury had retired, they summoned the clerk, in the absence of the trial judge, and gave him a note requesting further instructions. The request was communicated by-telephone to the judge, who, in reply, dictated to the clerk an instruction which properly covered the subject of the inquiry. This instruction, after being reduced to writing and submitted to counsel, was delivered by the clerk to the jury. Held, that counsel could not for the first time object to the proceeding on motion for a new trial.
    Error to Wayne; Donovan, J.
    Submitted October 6, 1898.
    Decided November 9, 1898.

      Assumpsit by Louis Barnett against Rosa Saloman on a promissory note. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Selling & Hatch, for appellant.

      Sloman & Groesbeck {Benjamin Jacobson, of counsel), for appellee.
   Long, J.

Action upon a promissory note of $100, dated September 1, 1894. The execution of the note is admitted. The defense is that it has been paid.

The plaintiff is 75 years of age, and the defendant is his niece. They live in the same house, plaintiff living in the upper part of it. It appears that, after the making of the note, plaintiff was sued for a breach of promise of marriage. This case was settled by plaintiff, and on his return home after such settlement, he says, he stated to defendant that she could have this $100 note which she owed him; that defendant and her husband declined to receive it, saying that they had no children, and did not need the money. Defendant admits this conversation, but claims that she then told the plaintiff to give 'the money due on the note to Louis Saloman, her husband’s brother, who was then out of employment, had four children, and needed the money, as he wanted to start in business; that the plaintiff promised that he should have the money; that this conversation was in the presence of her husband. The husband of defendant also testified to this conversation, and, further, that the plaintiff told him to pay the money on the nbte to Louis Saloman; that, acting upon this, he did pay the $100 to Louis Saloman; that he informed the plaintiff of such payment, and asked to have the note back, and was informed by the plaintiff that the note had been destroyed. This whole arrangement as testified to by defendant and her husband is denied by plaintiff. He testified that there was a talk about his letting Louis Saloman have some money, and that he said if he got back the $100 he would loan Louis $50; but that he never authorized the defendant or her husband to pay Louis the money due on the note, and never approved such action; that, after defendant refused to receive it as a gift, he kept the note, and produced it on the trial.

The court charged the jury, at the request of defendant, as follows:

“If you find from the evidence that the plaintiff, after the termination of the breach of promise case with Rosa Schlessinger, authorized the defendant or her husband, Jacob Saloman, to pay the amount of the note sued on in this case to Louis Saloman, and that the plaintiff thereafter never revoked the authority, and that the defendant or her husband paid the amount of the said note to the said Louis Saloman, then your verdict would be for the defendant; that is, of course, if the note is paid you would not find a verdict on it.
“If you find that the plaintiff in January, 1896, authorized Loúis Saloman to collect the amount of this note from the defendant in this case, and that in pursuance of that authority the said defendant or her husband did so pay the $100 to the said Louis Saloman, then your verdict would be for the defendant. * * *
“If you find after the $100 was paid— I will say, if you find that the $100 was paid to Louis Saloman; that the plaintiff was informed by the defendant or her husband, and approved of the action so taken, — then your verdict would be for the defendant. It is immaterial in this case what Louis Saloman was to do with the money. If you find that the plaintiff authorized the defendant or her husband to pay Louis Saloman the money, and his ratification of the payment thereafter, if he did so ratify it, would show that he did not intend that the money was to be applied for any particular purpose.
“It is undisputed in this case that Rosa Saloman had authorized her husband, Jacob Saloman, to act in the matter for her; and if you find that Jacob Saloman"was instructed by the plaintiff in this action to pay the amount of the note to Louis Saloman, and that Jacob Saloman ■did so pay it, then the payment was the same as if made to the plaintiff himself, and then the verdict would be for the defendant.
“If you find that the plaintiff authorized payment of the money due on this note to Louis Saloman, and it was paid, then the fact that the note was not canceled orjde.stroyed is immaterial in this case.”

Defendant’s counsel also asked the court to chai'ge the jury:

“If you find that, after the payment of the amount of the note to Louis Saloman, Jacob Saloman asked the plaintiff for the note, so that it might be canceled or ■destroyed, and that the said plaintiff informed the said Jacob Saloman that the note was destroyed and that he would never again try to enforce payment, your verdict must be for the defendant.”

The following request was also made by the defendant:

“If you find that the plaintiff in this suit, one month before he brought suit upon this note, stated to the defendant, in the presence of her husband and in the presence of Mrs. Roth, that the defendant in this suit owed him nothing, and if he did not in any way qualify this-statement, this is conclusive proof that he considered the note paid, and your verdict must be for the defendant.”

These requests were refused, and counsel for defendant insist that the refusal to give them was prejudicial to the defendant, and that the requests correctly stated the law governing the case. We think the court properly refused them. If it be assumed that the plaintiff made these statements, he would not be estopped from making claim on the note. He denied positively that he made any such statements, and the whole controversy was for the jury. The court very fully and fairly stated to the jury that, if the plaintiff instructed defendant’s husband to pay the money to Louis Saloman, he could not recover. That was the only question in the case.

It appears that a motion for a new trial was made upon the grounds that after the jury had been charged by the court, and had retired to their room for deliberation, the clerk of the court, in the absence of the court, and without consent of counsel for defendant, entered the jury-room, and received from the jury a note reading, “It is maintained by some of the jurors that the judge charged us that, if we believed that Jacob paid the money to Louis, we must bring in a verdict for the defendant;” that the clerk communicated the contents of' this paper to-the trial judge through the telephone; that the judge directed him to change the paper so that it would read, “If Jacob paid the money to Louis by authority of Barnett, the plaintiff, you must bring in a verdict for the defendant;” that defendant’s counsel objected to this-method of charging the jury, but that the clerk took the paper into the jury-room, defendant’s counsel not being admitted, and no stenographer being present; and that the clerk was heard to say something to the jury, but what it was could not be heard. The motion was supported by the affidavit of counsel for defendant.

The plaintiff on such motion filed the affidavit of the clerk of the court in opposition to the motion, in which the clerk testified that, while the jury were in their room, he was informed by the officer in charge that the foreman of the jury requested to have him called; that he did not enter the jury-room, but went to the door; that the foreman stated that the jury desired to ask a question of the court; that he communicated this to the judge, who directed that the jury should put the question in writing, which was done, and the question was presented as stated in the motion; that one of the circuit judges was in the room adjoining while these matters were taking place; that, as soon as he received the question from the jury, he showed it to the circuit judge then present, who instructed him to submit it to the attorneys for both parties, which he did; that he then communicated it to the trial judge, who directed the change as above suggested; that he at once submitted the instruction to both the attorneys of the parties, neither of whom made any objection to its being handed to the jury; that he handed it to the jury, but in no manner otherwise communicated with them.

The motion was denied by the trial court, and error is assigned upon such denial. The whole matter was before the trial court, who was in a better position to determine the truth of the facts stated in the affidavits on this motion than we are. If counsel for the defendant consented that the further charge might be handed to the jury by the clerk, or stood by and made no objection to such proceeding, we think no error was committed of which counsel can now complain. It is true that no communication must be made to the jury after they have retired to deliberate upon their verdict, except by order of the court. ' The court itself directed that this further instruction be given them in writing. Counsel for defendant, if the clerk’s affidavit be true, knew that they were to be so further instructed, and made no objection. The instruction was a correct statement of the law applicable to the case, and we think no new trial should be now granted at the^ instance of counsel who made no objection at the time.

The judgment must be affirmed.

The other Justices concurred.


text:
    LINDLEY v. LUPTON.
    Mortgages — Settlement with Agent.
    A bill to foreclose a mortgage cannot be maintained, where the authorized agent of the mortgagee delivered to the mortgagor, for a valuable consideration, the notes secured by the mortgage, with the understanding that a settlement of the mortgage was fully consummated, leaving nothing to be done but the delivery of the discharge of the mortgage, although the mortgagee thereafter attempted to repudiate the settlement.
    Appeal from Ogemaw; Sharpe,. J.
    Submitted October 6, 1898.
    Decided November 9, 1898.
    Bill by Robert T. Lindley against Levi R. Lupton and others to foreclose a mortgage. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      F. L. SnOdgrass, for complainant.

      Boss & Harris (W. A. Weeks, of counsel), for defendants.
   Long, J.

In February, 1895, the defendants made and delivered to complainant their promissory note for $600, due in two years from date. The payment of this note was secured by mortgage executed by the defendants upon the S. E. i of S. E. i of section 26, township 24 N., of range 3 E., and lots 1, 9, and 10, in block 9, of the village of Lupton, all in Ogemaw county, this State. Two other small loans were thereafter negotiated between the parties, and secured by mortgage. The complainant lives in Elizabethtown, Ind. This proceeding is brought to foreclose the $600 mortgage. The defense interposed is a claimed settlement and payment of the mortgages by deed of certain property in Ogemaw county, executed by defendants to complainant, and such deed accepted by the complainant by Mr. Snodgrass, his agent in this State, and a further payment of $100 in a draft. The court below found in favor of defendants’ theory; that a settlement had been made, and dismissed the complainant’s bill. Complainant appeals.

It appears that considerable correspondence passed between the parties in reference to a settlement of complainant’s claims, and on May 4, 1897, defendants wrote complainant, offering to deed him the S. E. £ of the S. E. £ of .section 26, the village residence property, and pay $100 in cash, by way of settlement. On June 7th following, complainant wrote defendants that, if they would deed the house and lots in Lupton, the 40 acres of land, and pay $100 in cash, he would accept it. In answer to this the defendants wrote on June 8th, saying-:

“Our proposition is exactly the same as yours, unless you mean to include the Laura Lupton lots in the village you hold security on for interest due last year. We did not mean to include them in our proposition. Please let us know if you did. * * * On reading your letter, I recalled the deeds out of the mail before they left town. I will deliver them and the money over to Mr. Snodgrass, or to M. H. French & Co. bank at West Branch, whichever you designate, in exchange for the notes and mortgage releases. Let me know which place you send them, and oblige.”

It is the claim of defendants that, shortly after this letter, they received a card from the complainant, saying:

“I have asked Mr. Snodgrass to talk over your proposition to me with you. If you can trade with him, you can count the matter as satisfactorily settled with me. Hoping the matter will be amicably settled, I am, ” etc.

The time of receiving this card is in dispute between the parties, but we are satisfied. that it was received after sending the above letter to the complainant.

It is further claimed by the defendants that, upon the receipt of this card, they arranged the matter with Mr. Snodgrass; that they made id delivered the deeds of property as requested, and that, upon such settlement, Mr. Snodgrass turned over all the notes accompanying the mortgages to them, and among which was the note accompanying the mortgage in controversy here;.that, at the time the notes were so surrendered, Mr. Snodgrass, acting as agent and attorney for the complainant, agreed to procure the releases of the mortgages, and deliver them to defendants; and that, as a part of the consideration of the terms of settlement, they delivered to Mr. Snodgrass a draft for $100, payable to complainant. The complainant thereafter attempted to repudiate the settlement, and demanded the return of all the papers as they were originally. This defendants refused to comply with, and complainant commenced these proceedings for a foreclosure of the mortgage. There is no question upon this record but that these notes were delivered to the defendants by Mr. Snodgrass as the agent of complainant; and we think it is shown by a great preponderance of evidence that they were surrendered with the understanding that the settlement was fully consummated. Nothing was left to be done but the delivery of the discharges of the mortgages.

The decree of the court below must be affirmed.

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


text:
    O'LEARY v. SCHOOL DISTRICT NO. 4 OF BRIDGEPORT TOWNSHIP.
    Schools — Teacher’s Contract — Expiration of Certificate.
    A school board’s contract with a teacher to employ her for the fall term, and to give her a contract for five months longer if she gives satisfaction, will not bind the district to re-employ the teacher, though her fall’s work prove satisfactory, if her certificate, without which under the school law no one is authorized to teach, has less than five months to run.
    Error to Saginaw; Snow, J.
    Submitted October 6, 1898.
    Decided November 9, 1898.

      Assumpsit by Hannah O’Leary against school district No. 4 of Bridgeport township, upon a teacher’s contract. Erom a judgment for plaintiff, defendant brings error.
    ^Reversed.

      Harris & Kendrick, for appellant.

      JTred H. Allen, for appellee.
   Long, J.

Plaintiff entered into a written contract with the defendant to teach the school of the district. The contract is as follows:

“ It is hereby agreed by and between school district No. 4 in the township of Bridgeport, county of Saginaw, State of Michigan, and Miss Hannah O’Leary, a legally qualified teacher, that said teacher is to teach, govern, and conduct the pupils of the public school of said district to the best of her ability; keep a register of the daily attendance and studies of each pupil belonging to the school, and such other records as the district board may require;make the report required by law; and endeavor to preserve in good condition and order the school-house, grounds, furniture, apparatus, and such other district property as may come under the immediate supervision of said teacher, — for a term of three school months, commencing on the 21st day of September, A. D. 189G, for the sum of twenty-six dollars per school month, to be paid at the end of each month; and the said school district hereby agrees to give her a contract for the remaining five months of the school year if she gives satisfaction; and the said school district hereby agrees to keep the school-house in repair, to provide the necessary fuel and school register, and for the services of said teacher as prescribed above, well and duly performed, to pay said teacher the sum of twenty-six dollars per school month, at the end of each month, during a term of three months, commencing on the 21st day of September, 1896: Provided, that in case said teacher shall be legally dismissed from school, or shall have her certificate legally annulled by expiration or otherwise, then said.teacher shall not be entitled to compensation from and after such dismissal or annullment: Provided, further, that the wages of said teacher for the last month of the school term shall not be paid unless said teacher shall have made the report for the school term as required by law.”

At the time this contract was made, plaintiff held a third-grade certificate from the board of school examiners, which expired on March 28, 1897. She taught the school for the three months commencing September 21, 1896. At the end of that time the board hired another teacher, and advised plaintiff that her services were no longer required. This action was brought to recover what the plaintiff claims is her due under the contract. On the trial the court directed the jury that the contract was for eight months, and, if the board acted in bad faith in discharging her, she might recover for such part of the additional five months as would terminate on March 28, 1897, her certificate expiring at that time, and that she could not recover for services after that time.- The jury found a verdict in her favor, and defendant brings error.

The court was in error in construing the contract as one for eight months. The most that can be said of it is that it was a contract for three months, with an agreement that at the end of that time the board would “give her a contract for the remaining five months of the school year if she gives satisfaction.” At the end of the three months she was not a legally qualified teacher for the full five months thereafter, as her certificate extended only about three months thereafter. The school law provides that:

“No person shall be considered a qualified teacher within the meaning of this act, nor shall any school officer employ or contract with any person to teach in any of the public schools under the provisions of this act, who has not a certificate in force, granted by the board of school examiners or other lawful authority.” Act No. 147, Pub. Acts 1891, § 5, as amended by Act No. 34, Pub. Acts 1893, and Act No. 66, Pub. Acts 1895.

It appeared upon the trial that the board refused to enter into the five-months contract for the reason that the plaintiff had no certificate to teach that length of time. It is therefore evident that she was in no position to compel such action, and the court was in error in leaving the question of the motive of the board in discharging plaintiff to'' the jury. She had no contract for the five months, and was in no position to make one for that length of time. When the court directed- the jury that she might recover for that part of the five months ending March 28, 1897, he was making a new contract between the parties; that is, a contract for three months instead of five. There was • nothing in the case which warranted this. If the board was bound at all, it was to enter into a contract for five months. The plaintiff could not make such a contract, as she did not possess the necessary qualification therefor. The board was therefore released from - any obligations under this contract, even though it could have been enforced if the plaintiff had been qualified to make it, — a point which it is not necessary to determine here.

The judgment below must be set aside. No new trial will be awarded.

The other Justices concurred.


author: Montgomery, J.

text:
    PIERPONT v. OSMUN.
    Tax Sales — Redemption—Notioe—Statutes.
    Act No. 229, Pub. Acts 1897, which amended the general tax law by providing that no writ of assistance for the possession of land, “the title to which has been obtained under and in pursuance of any tax sale hereafter made,” shall be issued until six months after the filing of proof of service upon the grantee in the last recorded deed, and the mortgagee in the last recorded mortgage, of notice of the right to redeem therein provided for, does not apply to previous purchases at tax sales upon which deeds had not been issued by the auditor general at the time the act took effect.
    Appeal from Shiawassee; Smith, J.
    Submitted October 6, 1898.
    Decided November 9, 1898.
    Petition by Warren Pierpont against William H. Os-mun, Sr., for a writ of assistance. From an order granting the writ, defendant appeals.
    Affirmed.

      Kilpatrick & Pierpont (James H. McFarlan, amicus curiae), for petitioner.

      J. Ten Eyck (Alfred Bussell, of counsel), for defendant.
   Montgomery, J.

The petitioner, Warren Pierpont, purchased certain lands at the annual tax sale held at the treasurer’s office of Shiawassee county on the 7th day of December, 1896. The lands were sold for the delinquent taxes of 1894 under a decree the regularity of which is not questioned. A certificate of purchase was issued to the petitioner in the usual form. The lands not having - been redeemed, the certificate of purchase was surrendered to the auditor general, and a deed was issued by the auditor general to the petitioner, which deed was dated February 14, 1898. After demand for possession of the premises in question, the petition in the present proceeding was filed asking for a writ of assistance. The defendant showed that he had tendered to the petitioner the full amount paid by him, together with the additional charges provided by Act No. 229 of the Public Acts of 1897. The circuit court granted the writ, and defendant appeals.

The two questions presented are whether Act No. 229, Pub. Acts 1897, was intended to affect the title or remedy of the petitioner and those occupying a like position, and, second, if this was the intention, whether the provision extending the time for redemption, and modifying conditions under which redemption may take place, impairs the obligation of contracts, and is, for that reason, unconstitutional. Both questions are discussed in the briefs of counsel. The provisions of the statute in question material to this inquiry are as follows:

“ Sec. 140. No writ of assistance or other process for the possession of any land the title to which has been obtained under and in pursuance of any tax sale hereafter made, or of any sale of State tax lands or State bids hereafter made, except where such title shall be obtained under the provisions of section 131 of this act, shall be issued, until six months after there shall have been filed with the county clerk of the county where the land is situated a return by the sheriff of said county, showing that he has made personal service, or until substituted service, as hereinafter provided, has been made, upon the grantee or grantees under the last recorded deed to said land, and upon the mortgagee or mortgagees named in the last recorded mortgage, or any assignee thereof of record, of a notice,” etc.

It is the contention of the appellant that this statute should be so construed as to include all titles so acquired after the act takes effect, and that the title is not acquired until the conveyance is actually made by the auditor general. It is said that the words “sale hereafter made” mean the same thing as “title hereafter acquired.” We do not find ourselves able to agree with the learned counsel for the appellant. It appears by this section that the writ of assistance, authorized by other provisions of the tax law, is by the legislature denied in three cases: (1) In cases where the title to the land has been obtained under and in pursuance of a tax sale hereafter made; (2) in cases where the title is obtained by purchase of State tax lands; (3) in cases where the title is obtained by purchase of State tax bids, — in either of the two latter cases the purchase being made after the act takes effect. It was obviously not the intention of the legislature to deny the remedy to those who had made previous purchase of land at a tax sale, but who had not acquired their title or conveyance from the auditor general. To place this, construction upon the statute, we would be required to insert the word “heretofore” in place of or in addition to the word “hereafter.” It cannot be said that in this statute the words “any tax sale hereafter made’’refer to the conveyance by the auditor general to the purchaser. These words in the tax law are used to denote the sale made on petition of the auditor general, and at which the certificate of purchase is given to the purchaser. Act No. 206, Pub. Acts 1893, §§ 70-72, 74. Section 70 provides for the sale; section 71 provides for the giving of the certificate at such sale; and section 74 provides that any person owning any of the lands, or any interest therein, may, at any time within one year from and after “such sale,” redeem any parcel of such lands, etc. But the language of the act of 1897 is not ambiguous. It refers to a title which has been obtained in pursuance of a tax sale. The very language imports a distinction between a tax sale and an acquisition of title. Had the intent been otherwise, an apt term would have been, ‘ ‘ a title obtained by one through a tax sale.” But the language employed imports that a tax sale must have preceded the acquisition’ of title.

Being satisfied that the construction of the statute contended for by defendant cannot be adopted, it becomes unnecessary to consider whether the legislature has the power to enact such a provision as would relieve the owner of the property by materially extending the period of redemption.

The order appealed from will be affirmed.

The other Justices'concurred.


author: Grant, O. J.

text:
    HUNTON v. HERTZ & HOSBACH CO.
    Witnesses — Production of Documents.
    The court may, where written documents are in court, order their production and admission in evidence, if found to he material, although no subpoena duces tecum has been issued.
    Error to Wayne; Frazer, J.
    Submitted October 18, 1898.
    Decided November 9, 1898.

      Assumpsit by Albert K. Hunton, administrator of the estate of Wilson H. Tousey, deceased, against the Hertz & Hosbach Company, for goods sold and delivered. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff brought suit to recover the value of two car loads of birch lumber sold by the deceased to the defendant. The first sale was made through Mr. Tousey’s agents, commission merchants in Detroit; Mr. Tousey living in Bay City. This load was unsatisfactory, and Morris R. Tousey, the son of the deceased, went to Detroit and saw the defendant. It seems to have been conceded that that load was not up to the representations. It is claimed that the difficulty about that car load was settled in the order for a second car load. On the receipt of the second car load, defendant objected to accepting it, claiming that the lumber was not as represented. Plaintiff had verdict and judgment.

      Trevor & Trevor (O. E. Warner, of counsel), for appellant.

      T. A. E. & J. O. Weadock, for appellee.
   Grant, O. J.

(after stating the facts). The case appears to -have been submitted by counsel, and in the instruction of the court, upon the theory that the authority conferred upon the commission men by the deceased was material. This authority was contained in letters which passed- between the deceased and the commission men.. Mr. Morris R. Tousey was a witness for the plaintiff, and upon cross-examination was asked to produce the correspondence. The witness admitted the letters were in court, and in the possession of his counsel. His counsel stated that they were ready to produce them, if so ordered, but denied that they were material. The court declined to order their production, on the ground that it had not the power; that the proper course for the defendant was to issue a subpoena duces tecum. The court was in error. When written documents are in court, it is in the power of the court to order their production for examination, and for admission in evidence if found to be material. The only purpose of the subpoena duces tecum is that the documents may be produced in court. When they ai’e in court, in the hands of the parties or their counsel, the court should order their production. Powers v. Pussell, 26 Mich. 179.

Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    WILLIAMS v. WILLIAMS.
    1. Deeds — Declaration of Trust.
    A declaration of trust, comprised in a separate instrument accompanying a deed, will, as between the parties, be given the same effect as if embodied in the deed itself.
    2. Same — Husband and Wife — Purchaser for Value.
    A wife, having voluntarily given to her husband a sum of money, was told by him that whatever property he had should be hers at his death. A few days before his death, the husband, pursuant to the agreement, deeded his entire property to the wife. Held, that she could not hold the property, as a bona fide purchaser, as against one who had conveyed it to the husband in trust.
    3. Same — Trusts.
    A trust in land reattaches, where the land, after being conveyed by the trustee to a bona fide purchaser, is subsequently redeeded to the trustee.
    4. Same — Landlord and Tenant — Accounting for Bent.
    Where lands occupied by a tenant are conveyed by the landlord to his wife a few days before his death, the tenant’s liability to account for rent in arrears at the time of the transfer is to the estate of the landlord, and not ter the wife.
    Appeal from Wayne; Hosmer, J.
    Submitted October 19, 1898.
    Decided November 9, 1898.
    Bill by Louis H. Williams against Julia Williams and others to set aside a deed. From a decree for complainant, defendant Julia Williams appeals.
    Affirmed.
    On October 17, 1884, complainant and defendant Julia Williams, being the owners as tenants in common of the land here in controversy, executed a warranty deed to one Melhose. At the same time Melhose executed a conveyance of the same land to Henry Williams, the husband of the defendant Julia. The purpose of these conveyances was to transfer the title to Henry Williams. At the same time Henry Williams, who was complainant’s father, executed to him a declaration in writing, the substantial parts of which are as follows:
    “Know all men by these presents, that I, Henry Williams, of the city of Wyandotte, county of Wayne, and State of Michigan, being desirous of holding real estate in my own name for the purpose of giving me a standing in the commercial world, do hereby agree with my son, Louis H. Williams, as follows: For and in consideration of the deeding to me by my said son (for the purpose above mentioned) his one-half interest in the following described property, to wit: ‘The north one-half of lot eight (8); block seventy-two (72), situated on Biddle avenue, in the city of Wyandotte, in said county and State, together with the one-story brick store being on said ground; to have and to hold the same for and during my natural life,’ — I hereby agree to pay all taxes and assessments, ordinary and extraordinary, that may be levied against the said property; to keep the building in as good repair as the same now is; to keep the buildings erected and to be erected fully insured against loss by fire; and, unless the said premises are reconveyed back to my son, Louis H. Williams, during my lifetime, I hereby agree to execute a will leaving the said property to the said Louis H. Williams, as the same is received by me without consideration, and only for the purposes above named.”
    Mr. Henry Williams died August 16, 1894. A few days before his death he executed a deed of the entire premises to his wife. The purpose of this suit is to set aside that deed as contrary to the agreement between complainant and his father, as evidenced by the writing.
    Complainant, from the time of the execution of the deed to his father’s death, occupied one room in the building as a store. No charge was ever made for the rent, and there is no evidence to show that the relation of landlord and tenant was ever understood to exist between complainant and his father.. Defendant Julia claims to be a bona fide purchaser, without knowledge of the agreement between her husband and complainant. Her father gave her at one time $500, which she gave to her husband, and she claims to have given it to him upon the understanding that at his death whatever property he had should be hers. It is claimed that the deed to her was made pursuant to that agreement. The circumstances under which she gave this money to her husband appear in her own testimony, as follows:

      Q. You gave Mr. Williams some money in 1892, you say; $500. Just tell us what occurred at that time when you gave him the money. I want to know exactly what was said at that time between your husband and yourself.

      “A. My husband said: ‘That is all right, my dear.
    Whatever is going to be left will be yours, because you did everything to help me.’
    ‘ ‘ Q. And you had got this money from your father as an advancement on your portion of his estate ?

      “A. Yes, sir.

      “Q. You took that money over, and you handed it to Mr. Williams ?

      “A. Yes, sir.

      “Q. He didn’t ask you for it ?
    “A. No, sir.
    “Q. You simply walked over, and voluntarily gave it to him ?

      “A. Yes, sir.

      “Q. And how long was it, after you gave him this money, that he told you it was going to be ‘ all right, my dear ?’
    “A. Just at the time I gave it.

      “Q. He didn’t ask you for a loan, or anything of that kind ?

      “A. No, sir.
    ‘ ‘ Q. Mr. Williams and yourself — Whatever money you had you gave over to him, and he used it, and if you wanted any money you used it ?
    “A. Yes, sir.

      “Q. The same as husband and wife ordinarily do business together ?

      “A. Yes, sir.

      “Q. And that is the way you came to give him this money, isn’t it,— this $500 ?

      “A. Yes, sir.”
    Defendant Julia had paid a mortgage upon the land, and had also purchased a few inches of an adjoining lot, upon which a portion of the building rested.

      The case was heard upon pleadings and proofs taken in open court. Decree was entered for the complainant, but provided that he should pay defendant Julia one-half of the amount paid by her to redeem the mortgage and to purchase the small strip of land, less one-half the rents of the property since the death of Mr. Williams.

      Flowers, May & Moloney, for complainant.

      James H. Pound, for appellant.
   Grant, C. J.

(after stating the facts). 1. By the deed and the declaration accompanying it, Henry Williams had only a life estate in the land, and at his death the title revested in complainant. Had the declaration been incorporated in the deed, no question would arise as to its effect. As between the parties, the same effect -must be given to the words when found in the declaration as when found in the deed. Only creditors of Henry Williams, and purchasers in good faith and for a valuable consideration, have rights in the property superior to those of the grantor and grantee.

2. Mrs. Williams was not a purchaser for a valuable consideration. She did not loan this money to her husband with any express agreement that these premises were to be conveyed to her in consideration for the loan. The money transaction was such as is common between husband and wife.

3. It is urged that this deed was made to defraud the creditors of complainant and defendant Julia, who were copartners in business at the time, and that, therefore, equity will not interfere. We find no tangible evidence to sustain this theory.

4. Mr. Henry Williams and his wife at one time executed a deed to one Archibald Campau. Mr. Campau subsequently redeeded the land to Mr. Williams. Defendant’s counsel urges that there is nothing upon this record to show that Mr. Campau was not a bona fide purchaser, and, the presumption being that he is one, that Mrs. Williams is entitled to the same protection that would be given to Mr. Campau if a bona fide purchaser. This might be true if Mr. Campau had made the deed direct to her; but where property is conveyed by a trustee to a bona fide purchaser, and the title to the property is reconveyed to the trustee, the trust reattaches. % Perry, Trusts, § 830.

5. It is urged that defendant Julia is, in any event, entitled to an accounting for the rent of that part of the building occupied by complainant during her husband’s lifetime. As already said, there is nothing in the record to indicate the existence of the relation of landlord and tenant, except the mere fact that the title was in the father, and a portion of the building occupied by the son. Whatever presumption might arise under the circumstances of this case, we need not consider. If complainant was bound to account to any one for the rents, it would not be to Mrs. Williams, but to the estate of Henry Williams.

Decree affirmed, with costs:

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


text:
    KEEGAN v. LORANGER.
    Fraudulent Conveyanoes — Bill in Aid of Execution — Prima Facie Case — Husband and Wife.
    The prima facie case which is established under Act No. 99, Pub. Acts 1897, on a bill in aid of execution, by introduction of the judgment, execution, and levy, and proof of‘the conveyance complained of, may be overcome by convincing testimony that the grant was in fulfillment of an agreement to make the deed in payment of a bona fide loan, although the grantee is the debtor’s wife.

      Appeal from Monroe; Kinne, J.
    Submitted October 19, 1898.
    Decided November 9, 1898.
    Bill in aid of execution by Thomas Keegan against Philip B. Loranger and Minnie S. Loranger. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Charles A. Golden and Willis Baldwin, for complainant.

      E. B. Gilday (G. M. Landon, of counsel), for defendants.
   Moore, J.

This is an appeal from a decree dismissing a bill of complaint filed by a judgment creditor of Philip B. Loranger in aid of an execution.

In March, 1883, the complainant deposited money in the bank of Lafountain & Loranger. The partners composing this bank were Mr. Lafountain and the defendant Philip B. Loranger. Mr. Loranger shortly after this retired from the firm. In July, 1883, the bank failed, and passed into the hands of an assignee. Complainant received a portion of the amount due him from the assets of the bank. In September, 1885, he obtained a judgment for the balance due him, which judgment was sued over and put into a new judgment in November, 1895. The father of Philip B. Loranger died in 1872, leaving quite an estate. His will left the property to his wife as trustee. Upon her death, a portion of the property would, by the terms of the will, become the property of Philip B. Loranger. In October, 1895, Philip B. Loranger deeded his interest in his father’s estate to his wife, Minnie S. Loranger, the other defendant in this proceeding. This deed was recorded July 3, 1897. July 9, 1897, the mother of Philip B. Loranger died; and, within a few hours after her death, Philip B. Loranger made a quitclaim deed of his interest in his father’s estate to his wife. The bill in this case alleges these conveyances are fraudulent as to the complainant, and is filed to have them set aside, and the land conveyed subjected to levy and sale to satisfy complainant’s judgment.

It is claimed on the part of the defendants that the conveyances are not fraudulent, but were made for a proper purpose. The case was tried in open court, and nearly all the testimony was taken in the presence of the circuit judge. The testimony on the part of defendants shows they were married in 1870. It tended to show that one month thereafter $3,000 was paid to Mrs. Loranger by an insurance company upon a policy of insurance made for her benefit by her brother, who died shortly before her marriage. Two or three years after his marriage, Philip B. Loranger became a member of the firm of Lafountain & Loranger. This firm remained in existence until June, 1883. Mr. Loranger contributed his time. Mr. Lafountain was supposed to be the capitalist of the firm. The financial crisis of 1873 affected the business of the bank, and it suffered heavy losses. It was also the victim of a disastrous burglary. After the $3,000 was paid to Mrs. Loranger, it was put at interest, and mortgages were taken in her name. The interest on these mortgages was paid to Mr. Loranger, and used by him. He also used the principal — nearly all of it — for the use of the bank. The defendants allege the money was used upon an agreement that, if Mr. Loranger could not repay his wife sooner, he would pay her out of his interest in his father’s estate, when he should receive it. It is claimed by them that the conveyances which were made were simply the carrying out of this agreement, and that no fraud whatever was perpetrated upon anybody.

After the banking firm was dissolved, Mr. Loranger became interested in some mining property in Colorado, which he subsequently conveyed to his wife. The assignee of the banking firm filed a bill to have this conveyance set aside. It is said by the complainant that Mrs. Loranger’s answer in that proceeding is inconsistent with her present claim. The circuit judge found the transaction was not fraudulent; that the property conveyed did not exceed in value the amount of the indebtedness; and that the making of the conveyances was simply carrying out a proper agreement which was made at the time the money was borrowed from the wife by the husband. We think this finding was fully justified by the testimony. We have not overlooked the familiar rule of law that transactions of this character between husband and wife should be carefully scrutinized. We have also considered the provisions of Act No. 99, Pub.. Acts 1897, which provide that complainant shall make a prima facie case on a bill filed in aid of execution by introducing his judgment, execution, and levy, and proof of the conveyance complained of, and that thereafter the burden of proof shall be upon the judgment debtor, or persons claiming under him, to show that the transaction is in all respects bona fide. We do not deem it necessary to recite the testimony in detail. It will be sufficient to say it fully meets the requirements of the rule of law in relation to dealings of this character between husband and wife, and the provisions of the statute as well.

The decree is affirmed, with costs of this court.

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


text:
    FERRIS v. HOME LIFE ASSURANCE CO.
    Life Insurance — Misrepresentation—Directed Verdict.
    A life-insurance policy was based upon a written application which stated, among other things, that the applicant had never been refused insurance; nor been given an unfavorable opinion by a physician with reference thereto. In an action on the policy, the medical examiner of a benefit association testified that, prior to the application in question, he had examined decedent upon his application for membership in the order, and had found traces of Bright’s disease, and had so informed him, but had withheld the report at decedent’s request. There was evidence, also, that decedent had told a member of the order that he was ineligible because of the examination. The records of the lodge did not disclose the application, but it was shown that it was not the custom to record applications unless accompanied by the report of the examiner. The only evidence relied on by plaintiff to contradict this showing of misrepresentation was the statements of the insured in his application, and certain statements by the medical examiner as to the result of his examination, claimed to be inconsistent with his testimony. Held, that defendant was entitled to have the verdict directed in its favor.
    Error to Wayne; Frazer, J.
    Submitted October 20, 1898.
    Decided November 9, 1898.

      Assumpsit by Paulina Ferris against the Home Life Assurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Reversed.

      John W. McGrath, for appellant.

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

The husband of the plaintiff was insured in the defendant company. The plaintiff was the beneficiary named in the policy of insurance. After the death of the husband, the company declined to pay the insurance. The plaintiff brought suit, and obtained a judgment after a trial by jury. The case is brought here by appeal.

In 1895, the husband of the plaintiff was insured in the Michigan Masonic Mutual Benefit Association. In September, 1896, this company retired from business, and defendant company took over the insurance of Mr. Ferris, and issued to him a policy containing, among other conditions, the following:

“In consideration of the payments and the representations, agreements, and warrants made by the insured herein named in his original application made to the Masonic Life Association of Grand Rapids, Michigan, and upon which application said association issued its policy No. 6,468, which application, and the articles of association and by-laws of this company, are hereby made a part-of this policy, and in further consideration of the acceptance of this policy, with the stipulations and conditions herein contained, by said insured, during his lifetime and while in good health, * * * this company does hereby issue this policy.”

In the original application, signed by Mr. Ferris, were the following questions and answers:

“Question No. 8. Has any proposal or application to insure your life ever been made to any company or agent upon which a policy has not been issued? If sos state full particulars.
' “Answer. No.
Question No. 9. Has any physician given an unfavorable opinion upon your life with reference to life insurance ? If so, state particulars.
“Answer. No.”

Mr. Ferris died February 17, 1897. In the application it was stated the questions WQre truthfully answered, and that they “are considered as an essential part of the application, and as forming, with it, the basis of a proposed contract of insurance.” It is claimed by way of defense that these questions were untruthfully answered, and by the answers such fraud was practiced upon the company as to avoid the policy.

The testimony on the part of the defendant showed that, in the summer of 1894, Mr. Sirrine, master workman of Eureka Lodge, A. O. U. W., took the written application of Mr. Ferris to become a member of that lodge, and delivered it to the recorder, who retained it for about three months, waiting for the medical examination to be presented; but, as it did not come, the application was destroyed. It also appears from the record that in August Mr. Ferris was examined by the medical examiner of the lodge five times. The medical examiner testified that he found traces of Bright’s disease, and so informed Mr. Ferris. He said he usually informed the grand medical examiner of the result of his examinations, but did not in this case, because of the request of Mr. Ferris, who said, if the officer made the report, he could not get other insurance. The record also shows that in November, 1895, Mr. Ferris was urged by a member of Detroit Lodge, A. O. U. W., to become a member of that lodge, and told the member he was not eligible, because he had been examined by the medical examiner, who told him he Had Bright’s disease. The only testimony that tended in any way to lessen the force of this testimony was' the answers made by Mr. Ferris to the questions in the application itself, and some statements made by the medical examiner as to the result of his examination, which it is said were not consistent with his testimony; and the further fact that the records of the lodge did not show Mr. Ferris ever applied for membership. This testimony did not tend to show the medical examiner did not make the examination as testified by him. It was also shown that no record was made of an application unless accompanied by the report of 'a medical examiner. The circuit judge was requested to direct a verdict in favor of defendant. He thought there was some evidence for the jury, and submitted the case to them.

It is a right which insurance companies have to be truthfully informed whether an applicant for insurance has before then applied for insurance, and been rejected, and to know whether a medical examiner has declined to give a favorable opinion upon his application for insurance, so that the persons whose duty it is to act upon the application upon the part of the company may act intelligently. Brown v. Insurance Co., 65 Mich. 306 (8 Am. St. Rep. 894); Finch v. Modern Woodmen of America, 113 Mich. 646. There is no testimony in the case which tends to discredit the testimony on the part of the defendant that Mr. Ferris did apply to the Ancient Order of United Workmen for insurance, and that their medical examiner advised him he was not a proper subject for insurance. The judge should have directed a verdict in favor of defendant. Lange v. Perley, 47 Mich. 355; Corbett v. Spencer, 63 Mich. 731; Township of Medina v. Perkins, 48 Mich. 67; Dondero v. Frumveller, 61 Mich. 440; Hunt v. Order of Chosen Friends, 64 Mich. 671 (8 Am. St. Rep. 855 ); Gillette v. Knowles, 97 Mich. 77.

Judgment reversed, and new trial ordered.

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


text:
    CENTRAL NATIONAL BANK OF CLEVELAND v. GRAHAM.
    1. Creditor’s Bill — Validity of Judgment — Presumptions.
    The presumption of the validity of a judgment cannot be overcome by an allegation in the answer to a creditor’s bill, that the judgment on which the bill is founded was upon notes, in the giving of which defendant “ was grossly swindled,” that he was not aware of the trial when the case was tried, and that the trial was a conspiracy on the part of complainant and others.
    2. Same — Receivers—Examination Before Commissioner — Summons.
    A summons may be issued against a judgment debtor against whom a creditor’s bill is pending, and for whom a receiver has been appointed, requiring him to appear before a circuit court commissioner for examination, although proof has not been made of service of the order appointing a ’receiver, where such order, a copy of which is before the commissioner, directs him to issue a summons on request.
    3. Same — Contempt—Stay oj? Proceedings.
    A judgment debtor for whom a receiver has been appointed may be adjudged guilty of contempt in disobeying an order to attend a hearing before a circuit court commissioner for examination, although a petition taken by him to stay the receivership proceedings is pending, where no temporary stay preventing the judgment creditor from proceeding has been made.
    Appeal from Wayne; Lillibridge, J.
    Submitted October 20, 1898.
    Decided November 9, 1898.
    Judgment creditor’s bill by the Central National Bank of Cleveland, Ohio, against James Graham. From an order denying an application to stay receivership proceedings, and adjudging defendant guilty of contempt in failing to respond to the summons of a circuit court commissioner, defendant appeals.
    Affirmed.

      Bowen, Douglas & Whiting, for complainant.

      John Galloway (Elliott G. Stevenson, of counsel), for defendant.
   Montgomery, J.

The complainant on the 23d of March, 1898, recovered a judgment of $12,000 and upwards against the defendant in the Wayne circuit court. On the 12th of May following, a creditor’s bill in the usual form was filed, and, on the 19th of May following, Henry G. Nicol was appointed receiver of the property of the defendant, by an order which also required the defendant to appear before a circuit court commissioner for examination. On the 16th of June a circuit court commissioner’s summons was issued, requiring him to attend a hearing on the 23d of June of the matters in said case in reference before said commissioner. He failed to appear on tbe 23d of June, and a petition for an order to show cause why he should not be adjudged guilty of contempt was filed; and, upon an order- to show cause being served, he-made answer that, upon receiving a copy of the receivership order, he caused a petition to be prepared, praying that said order, appointing the receiver be vacated or stayed until the issue made by his answer regarding the validity of the judgment upon which the proceedings were based be determined. The court on the 28th of June made two orders, — the one denying the application to stay the receivership proceedings, and the other adjudging the defendant guilty of contempt. The defendant appeals from both these orders.

It should be further stated that the defendant has filed an answer in the original suit, in which he sets up that the judgment obtained against him was obtained upon notes, in the giving of which he was “grossly swindled; ” that he was not aware of the trial of the case at law when it was tried; that “the trial was a conspiracy on the part of the complainant, its agents, attorneys, and others, to prevent this defendant from presenting any further application for a continuance.” It will not be necessary to determine whether the answer sets up any defense which can be recognized if the defendant should find himself able to establish the averments by proof. It is sufficient to say that the presumption of the validity of this judgment cannot be overcome by the averments of the answer, and it cannot be said that the circuit judge abused his discretion in refusing to vacate the order appointing a receiver. Williams v. Hubbard, 1 Mich. 446; Turnbull v. Lumber Co., 55 Mich. 387; Dutton v. Thomas, 97 Mich. 93.

It is urged against the order adjudging the defendant guilty of contempt that the commissioner had no authority to issue the summons in question, requiring the defendant to appear, until he had before him proof of service of the order appointing a receiver. The order appointing a receiver directs the commissioner to issue a summons upon request. A copy of this order was before the commissioner, and this was sufficient. Whipple v. Stewart, Walk. Ch. 357.

The only other claim which needs to be noticed is that the defendant could not be adjudged guilty of contempt pending the hearing of his petition to stay the receivership proceedings. The answer to this is that there was no temporary stay preventing the complainant from proceeding. The whole case indicates a purpose on the part of the defendant to delay proceedings.

The orders appealed from will be affirmed, and complainant allowed an additional solicitor’s fee of $25.

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


text:
    BRITTON v. MICHIGAN CENTRAL RAILROAD CO.
    1. Trial — Accident at Railroad Crossing — Arguments of Counsel — Personal Observations.
    It is error for the court to permit plaintiff’s counsel, in an action for injuries at a railroad crossing, to state to the jury-in his closing argument his own observations with respect to the opportunity for seeing the track from the highway, based upon a visit to the scene of the accident.
    2. Same — Contributory Negligence — Judgment of Attorney.
    Counsel has no right to place before the jury in an action for personal injuries, as tending to show that plaintiff was not guilty of contributory negligence, the fact that, by reason of his experience in damage suits, he would not have taken the case unless his client had satisfied him that he was free from negligence.
    3. Same — Damages—Cost of Litigation.
    It is error for the court, in an action for personal injuries, to permit plaintiff’s counsel to urge the jury to include in their verdict compensation to plaintiff for the expense of litigation and the trouble in prosecuting the claim.

      Error to Shiawassee; Smith, J.
    Submitted October 31, 1898.
    Decided November 9, 1898.
    Case by Martinus S. Britton against the Michigan Central Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      M. V. & B. A. Montgomery (J. P. Lee, of counsel), for appellant.

      Watson & Chapman, for appellee.
   Hooker, J.

The plaintiff was injured while riding in a buggy, through a collision at the crossing of a highway and the defendant’s railway in the city of Owosso. In an action charging negligence he recovered a judgment, and the defendant has brought error.

It is unnecessary to consider all of the questions raised. The circuit judge seems to have overlooked the responsibility resting upon him to see that the defendant had a fair trial, and allowed counsel to present the case to the jury in a way calculated to arouse their prejudices. It is said in the brief that the rule of this circuit forbids interruption of counsel during an argument, no matter how far they wander from the record or transgress professional ethics. If this is true, we cannot commend the rule as a safe one to be applied upon all occasions. There is much that is intemperate in the argument of counsel in this case. Usually we assume that the circuit judge does his full duty in the premises, and do not reverse cases for such errors unless clearly injurious. Among the less violent, but improper, statements of counsel, we find the following in the record of his argument:

“These cars, instead of coming off straight at right angles, go straight in that direction, and as you go past them they are behind you, and block up your vision, so you look at an angle from behind you [illustrating on map]. Not only that, you get this pump works behind you; and when men talk about not shutting up the vision, I don’t believe it. I have been over on Chipman street myself. You stretch a line of box cars away off about 800 feet, — about 60 or 70 rods, — and have it at this angle, when you are close to that track, naturally your line of vision is partially behind you, and the pump-house would shut your vision out; and I will guarantee to say that the men couldn’t see that train, unless they had seen it back there nearly half a mile.”

Again, he said:

“One thing I think you have noticed is that the firm of Watson & Chapman have tried a great many damage suits, — a great many damage suits. I think I have drawn more declarations in damage suits than any other man in this section of Michigan. I say, I believe more than any man in the State of Michigan, with the exception of one, and that is Mr. Hayden, of the Upper Peninsula. I think you will give me credit for knowing something what the law of damage is in cases of this kind. I know my Brother Geer gives me credit for knowing what it is, and so do you. Now, do you believe Mr. Britton came into the office of Watson & Chapman, and said he didn’t stop at the railroad crossing, and Watson & Chapman undertook to try his case ? No, sir; certainly we didn’t. Nobody else would believe it.”

And, continuing, he said:

“We have asked the jury for $10,000. I say in this case the old man ought not to have at least less than $5,000. He ought to have a good round compensation,— such compensation as will compensate him for the injury that has been inflicted upon him; something that is going to pay him for the litigation and fight he has got to make to get it. In this case I say, if ever a man was entitled to recover a good verdict, this is one of them.”

It was error for him to state to the jury facts based on his own observation, or to argue, as proof 'that the plaintiff stopped before attempting to cross the railroad, that his counsel would not have commenced the action if he had not stopped. Nor should the jury have been asked to give the plaintiff compensation for the expense of litigation, or for trouble in prosecuting his claim. Had these things been promptly repressed, we might have passed them by as error without injury; but the record indicates that there was no effective restraint upon counsel.

"We also think that too great latitude was permitted in relation to the evidence of plaintiff’s statements of his injuries and feelings. We think the court did not err in his refusal to take the case from the jury, and we are not disposed to review the exercise of discretion in permitting an amendment to the declaration.

The judgment is reversed, and a new trial ordered.

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