author: Person, J.

text:
    BROBST v. BROBST.
    1. Estates of Decedents — Executors and Administrators— Equitable Rights — Probate of Estates.
    Since only a legal estate in the personal property of a decedent vests in the administrator, the heirs being vested with the equitable estate or right, they may collect the debts, etc., if no creditors’ rights prevent, and may distribute the funds in such manner as they may agree upon without administration in the probate court. The law favors arrangements of this nature. They are binding, especially when carried out, on the heirs or distributees, in the absence of fraud or mistake.

    2. Same — Debtor and Creditor — Enforcing Claims.
    The rule does not, however, recognize any authority upon their part, they not having the legal title, to enforce payment of debts to the estate.
    3. Same — Collection of Assets.
    On> the decease of an intestate the legal title to his personal effects remains in abeyance until the appointment of an administrator, and then vests in him in trust, in his official capacity, as of the time of the intestate’s death, • and he is entitled to the possession of such assets and to manage the property for the purpose of his trust; and except under special circumstances, such administrator, or other personal representative, as holder of the legal title, is alone authorized to bring an action for. the recovery of a debt due to the estate.

    4. Same — Authority of Executor or Administrator.
    And after an administrator has been appointed, and the time for appeal has elapsed, he cannot be refused the right to uncollected choses in action yet belonging to the estate. Upon his appointment, because of debts or for any other good reason, he has the right to seize and take into his possession, or sell, such assets as may be necessary, regardless of any division or disposition the’ heirs or distributees may have made of the same.
    5. Same — Assignments—Stock.
    It has been held that the widow and heirs of a decedent have no authority to assign a certificate of stock in a corporation so as to transfer the legal title, and like holdings have been made in relation to other intestate property. .
    6. Same — Actions—Pasties.
    The rule is a general one that actions for the collection of debts due to an estate must be brought by an executor or administrator.
    7. Same — Exception.
    Where the debtor acknowledges the holder’s right to a, note received from an estate and agrees to treat the moneys called for by the note as a loan from such holder or assign, an exception is recognized to such rule.
    Error to Kent; Perkins, J.
    Submitted October 18, 1915.
    (Docket No. 143.)
    Decided January 3, 1916.
    Assumpsit by Almeda Brobst against Henry Brobst. on a promissory note. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Dunham & Dunham, for appellant.

      Nichols & Shaw, for appellee.

      On necessity of administration in devolution of personalty, see note in 15 L. R. A. 491.

      The executor or administrator as real party in interest by whom action on behalf of estate must be brought is discussed in note in 64 L. R. A. 611.

   Person, J.

The plaintiff brought this action upon a promissory note for $700 and interest, payable to the order of one Almanda Adams, and purporting to be signed by the defendant. Almanda Adams, the payee in the note, died intestate on the 19th day of February, 1913; and on the 23d day of June, 1913, the other heirs and distributees of her estate assigned in writing all of their interest in the note to the plaintiff, who was one of the daughters of the deceased payee. No administration was had of Mrs. Adams’ estate, and plaintiff’s only title to the note comes through the assignment, and the fact that she is one of the distributees. This action was begun about eight months, or a little more, after the death of Mrs. Adams; and uncontradicted testimony was given upon the trial that there were no debts or claims of any kind against her estate. The case was tried before the circuit judge without a jury, and his findings disclose the facts above stated. He also found, as a conclusion of law upon these facts, that the plaintiff was entitled to recover, and directed judgment accordingly. An exception was taken by the defendant, upon the ground that the facts do not support the conclusion of law, in that the plaintiff has not shown such title to the note as will authorize a recovery by her upon it. As our conclusion upon this point will require a reversal of the judgment, the other exceptions become immaterial.

It is unquestionably the law, as stated in Foote v. Foote, 61 Mich. 181 (28 N. W. 90), that:

“The legal estate only in personal property vests in the administrator; the equitable estate therein is in the heirs, or other persons entitled to distributive portions thereof. The estate of the administrators therein is a trust for that purpose, and is created only for the purpose of laying hold of the estate and making such distribution. When there are no creditors, the heirs or legatees may collect, if they can, the estate together, and make such distribution among themselves as they may agree to and carry into effect, without the intervention of any administrator; and the law favors such arrangements. In such cases it is only where the heirs or legatees fail to make such collection and distribution that administration becomes necessary.”

And where there is no fraud or mistake, such an arrangement, particularly when carried into effect, will be binding upon the heirs and distributees; and, in the absence of creditors, they will be estopped from disturbing it by asking for the appointment of an administrator. Needham v. Gillett, 39 Mich. 574. The heirs themselves being bound by such settlement, and no creditors existing, there is no one with authority to question the distribution they may make; they are the equitable owners of the estate, and, in the absence of administration, there is no one to assert the legal title against them. It will be observed, however, that while this rule recognizes the right of the heirs and distributees, to divide among themselves such property of the estate as may be in their possession, and such as they may be able to get into their possession, it does not recognize any authority upon their part, they not having the legal title, to enforce the payments of debts owing to the estate and unpaid.

Notwithstanding the right of heirs and distributees to make such arrangements among themselves,

“It is well settled in this State that, on the decease of an intestate, the title [legal title] to his personal effects remains in abeyance until the appointment of an administrator, and then vests in him, in trust, in his official capacity, as of the time of the intestate’s death, and he is entitled to the possession of such assets, and to manage the property for the purposes of his trust.” Parks v. Norris, 101 Mich. 71 (59 N. W. 428).

See, also, Cullen v. O’Hara, 4 Mich. 132; Palmer v. Palmer, 55 Mich. 293 (21 N. W. 352); Miller v. Clark, 56 Mich. 337 (23 N. W. 35); Morris v. Vyse, 154 Mich. 253 (117 N. W. 639, 129 Am. St. Rep. 472) ; In re Reidy’s Estate, 164 Mich. 167 (129 N. W. 196). And, except under special circumstances, such administrator, or other personal representative, as holder of the legal title, is alone authorized to bring an action for the recovery of a debt due to the estate. Cullen v. O’Hara, supra; Gilkey v. Hamilton, 22 Mich. 283; Hollowell v. Cole, 25 Mich. 345; Parks v. Norris, supra; Buchanan v. Buchanan, 75 N. J. Eq. 274 (71 Atl. 745, 138 Am. St. Rep. 563, 20 Am. & Eng. Ann. Cas. 91, 22 L. R. A. [N. S.] 454).

And, upon the appointment of an administrator, because of creditors, or for any other good reason, such administrator, as holder of the legal title, has the right to seize and take into his possession and sell such assets of the estate as may be necessary, regardless of any division or disposition the heirs and distributees may have made of the same. In Morton v. Preston, 18 Mich. 60 (100 Am. Dec. 146), the widow and heirs placed their names upon a certificate of stock which passed into other hands. It was held that they had no authority to transfer the legal title to the stock, and the mother, upon afterwards being appointed administratrix, recovered its value in trover. In Gilkey v. Hamilton, 22 Mich. 283,. the son and wife of the intestate sold and delivered to the plaintiff in error a horse belonging to the estate. Upon afterwards being appointed administrators, the son and wife of the intestate were held by this court entitled to maintain replevin for the horse. In Ormsbee v. Piper, 123 Mich. 265 (82 N. W. 36), the widow and children of the intestate entered into a written agreement for the division and distribution of the estate which consisted, principally of a mortgage owned by the deceased, and the mortgage was given into the possession of the widow. Afterwards one of the sons procured himself' to be appointed administrator of his father’s estate,, and it was held that he was entitled to maintain replevin for the purpose of getting control of the mortgage, it being said in the opinion of the court:

“Nowhere do we find that an administrator duly appointed without appeal can be denied the uncollected, choses in action yet belonging to the estate, upon the ground that the heirs have agreed that there should, be no administration of the estate.”

If the heirs and distributees of an estate were entitled to receive and enforce payments of debts due the estate whenever it was believed that there were no> •creditors, then every debtor would be under the necessity of determining, at his peril, whether there were such creditors or not. And for a stranger to the estate to reach such a conclusion would ordinarily be no ,safe or assured matter. There might be debts depending upon a contingency that had not happened, •or incurred in a fiduciary relation not falling within the bar of the statute of limitations. As was said in Powell v. Palmer, 45 Mo. App. 236:

“From the nature of the case, the proposition that there are no debts provable against the estate of a deceased person is therefore a negative proposition, which is not susceptible of absolute proof. No evidence which could be offered in support of such a proposition could go further than to reach a strong degree of probability.”

Without attempting to name them all, there are certain exceptions to the rule that actions for the collection of debts due an estate must be brought by an administrator, or some one holding the legal title. The case of Letts v. Letts, 73 Mich. 138 (41 N. W. 99), illustrates such an exception. There the debtor had acknowledged the plaintiff’s right to a note received by her from her father’s estate, and had agreed to treat the moneys called for by the note as a, loan from the plaintiff. But the bare fact that there are probably no creditors of the estate to which the note belongs, and that is the most that can be said in any case until some conclusive bar has intervened, does not create an exception in this State to the rule.

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

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, .Steere, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    NORTHERN MICHIGAN BUILDING & LOAN ASSOCIATION v. FORS.
    Mortgages — Equity—Redemption.
    A mortgagee was bound in equity to afford an opportunity to redeem to parties wbo had an interest known to it when it foreclosed a mortgage on real estate without mentioning them; and where they had been ready and able to do so at any time, the court would grant an opportunity to redeem as a condition of equitable relief to the complainant mortgagee.
    Appeal from Houghton; O’Brien, J.
    Submitted October 14, 1915.
    (Docket No. 86.)
    Decided January 3, 1916.
    Bill by the Northern Michigan Building & Loan Association against John S. Fors and another to quiet title to certain land. From a decree for defendants, complainant appeals.
    Affirmed.

      Hanchette & Lawton, for complainant.

      John Kiiskila (Burritt & Burritt, of counsel), for defendants.
   Moore, J.

Some phases of this litigation have been here before. See Fors v. Fors, 159 Mich. 156 (123 N. W. 579); Northern Building, etc., Ass’n v. Fors, 171 Mich. 331 (137 N. W. 154). A reading of the opinions in those cases, will be helpful in the instant case.

After the last-named case was decided, the bill of complaint in this case was hied. In it is stated in. great detail the making of the deed, the making of the-mortgage, its foreclosure, the efforts of the complainant to get possession of the premises, the defendants’ refusal to vacate, and it avers that complainant is without remedy except in a court of equity, and prays, among other things, that the title to the premises in controversy may be decreed to be in the complainant. •The defendants answered in detail each of the averments in the bill and claim to be the owners of the property and that the deed involved in the controversy had been altered after it was made. The answer was in the nature of a cross-bill, and it admitted the mortgage should be paid, and averred that the defendants had offered to redeem therefrom, and averred that the premises are wortfy $8,500. An answer was made to the cross-bill. By stipulation of counsel the testimony taken in the two cases before mentioned which reached this court was received in evidence in this case. Other testimony was offered. The case was heard in open court. The trial judge in an opinion found the following facts:

“There is very little dispute concerning the facts ■necessary to a decision in this case. While it is disputed by the complainant, I am of the opinion that the defendant John S. Fors has occupied the east half of said lot under a claim of ownership from the 4th day of October, 1900, and the evidence certainly establishes the fact that on the \day of the execution of said mortgage, the 26th day of July, 1905, the defendant John S. Fors was. living on said premises under claim of ownership. The mortgage was foreclosed by advertisement against John S. Fors, Jr., on the assumption that John S. Fors, Jr., had the title in fee to said premises, although at the time of the foreclosure, and for a long time previous thereto, the complainant and its secretary and attorneys were all well aware that the defendant John S. Fors claimed to own said premises in fee simple. There is no question but that the bargain for the purchase of said property was made with the defendant John S. Fors, and that such defendant made valuable improvements on the premises. From an inspection of the deed itself from Her-res to Fors, it is quite evident that the deed was altered either before or after the delivery thereof. I am of the opinion that it was the intention of the parties at the time that the deed should run to John S. Fors. It is unnecessary, however, to decide this question in this case. The complainant saw fit to foreclose its mortgage by advertisement, and thereby assumed in spite of the fact that the defendant John S. Fors was then in possession of the premises, claiming to be the owner thereof and asserting a title which was adverse to the mortgagor John S. Fors, Jr.
“Now there is no doubt whatever that the complainant had a right to pursue this course and to foreclose by advertisement, and there is no doubt whatever that as far as John S. Fors, Jr., is concerned, his interest in said premises has been cut off and foreclosed by such foreclosure and the expiration of the equity of redemption.
_ “The complainant, however, is not resting on its title derived from such statutory foreclosure. It seeks now to confirm the same by means of a suit in chancery. It seeks to quiet its title against any claim of the defendants in this case. The defendants in their cross-bill are not seeking to avoid the payment of the mortgage, as the defendant John S. Fors unquestionably acquiesced 'in the securing of the loan by his son. It is claimed, however, by the defendants, that before the equity of the redemption expired they offered to redeem said premises. * * *
“I am not able to say that the preponderance of the evidence established the proposition that there was an offer to redeem on the part of Mr. Kiiskila before the equity of redemption expired, although there have been offers to redeem since the expiration of the equity of redemption.
“I am inclined to think, however, that, as the complainant now seeks to absolutely cut off all the claims of the defendants in and to said premises in this suit, a court of equity should give the defendants an opportunity to redeem from the mortgage. He who seeks equity must do equity. The complainant will not suffer if its loan is paid in full, together with the costs of foreclosure, less the net rent which it has collected, after deducting the necessary and reasonable charges incident to the renting and taking care of said premises.
“Under all of the circumstances, a decree will be entered as prayed for by the defendants in their cross-bill. * * *
“Upon the payment of the sum to be so fixed, within six months from the date of the decree, the defendants will be permitted to redeem. •* * *
“The decree shall further provide that, in case the defendants should not redeem said premises, then the complainant’s title shall be forever quieted against the defendants in pursuance to the prayer of the bill of complaint.”

Other proceedings were had, of which mention is made in a supplemental opinion by the trial judge as follows:

“The court filed an opinion in the above-entitled cause on the 19th day of November, 1913. There was some difficulty in settling the decree in conformance with the opinion, so that the decree was not finally signed until the 27th day of January, 1914. The decree, however, bore date of January 3, 1914. It was entered on the 30th day of January, 1914. According to the terms of the decree, the defendants were given six months from ‘the date hereof to pay the amount of the mortgage, with interest,’, and if the said defendants failed to do so their cross-bill was to be dismissed and costs to be taxed against them. Upon motion of the complainant, the time for filing its claim of appeal was extended for six months. This order was entered on the 2d day of March, A. D. 1914. The defendants paid the money into court as provided by the decree, on the 9th day of July, A. D. 1914. During the meantime, however, the complainant had the decree enrolled on the 7th day of July, A. D. 1914, and now claims that the defendants have failed to comply with the terms of the decree within the time fixed by the same, and that therefore the defendants have lost their right to redeem and all of their interest in the premises in controversy. * * *
“In my opinion the defendants have substantially complied with the terms of the decree. Within six months from the actual signing and entering of the decree they have paid their money into court. While the decree was dated as of the 3d day of January, 1914, it was not actually signed until the 27th day of January, 1914, and not entered until the 30th day of the same month. This decree certainly did not become effective until it was signed, and perhaps not until it was entered. I take it therefore that the six months would not begin to run until at least the date of the signing of the decree. In any event, it seems to me that the complainant is estopped from now claiming that the defendants have not complied with the terms of the decree by reason of the fact that on the 2d day of March, A. D. 1914, the complainant was. granted a six months’ extension of time within which to file its claim of appeal and bond in said cause. There were therefore proceedings on an appeal pending at the time that the complainant had the decree and other papers enrolled. A decree is inoperative as a decree until it has received the filing marks of the clerk. Puterbaugh’s Michigan Chancery, p. 183. The actual date of the decree was the 27th day of January, because it was on that date that it was actually signed.
“Under the circumstances, the defendants have sufficiently complied with the terms of the decree, and, as a claim of appeal was pending at the time of the enrollment of the decree, such enrollment was of no effect against these defendants.”

The case is brought here by appeal.

The record fully sustains the findings of fact which we have quoted from the opinion of the judge. It has already appeared that complainant deemed itself without remedy without the aid of a court of equity. It is a well-established rule that those who seek equity must do equity. Long before complainant made the loan which it seeks to collect, the senior Fors was in possession of the premises; his claim is that he was in possession under a claim of ownership. He was an ignorant man. The record abounds with evidence that he has attempted to maintain his rights at all times and at the same time has been willing that complainant should be paid what is equitably its due. Justice CAMPBELL speaking for this court once said of parties who seek the aid of a court Of equity:

“When they come here for relief, and are not willing to comply with equitable conditions, it is competent to give them their choice to do justice or to get their remedy where they can.” Miller v. Cornwell, 71 Mich. 270 (38 N. W. 912).

See, also, Goodenow v. Curtis, 33 Mich. 505, and Toms v. Boyes, 59 Mich. 386 (26 N. W. 646). , A perusal of the entire record satisfies us that the lower court reached a right result.

The decree is affirmed, with costs.

Stone,.C. J., and Kuhn, Ostrander, Bird, Steere, Brooke, and Person, JJ., concurred.


author: Steere, J.

text:
    OAKLAND MOTOR CO. v. AMERICAN FIDELITY CO.
    1. Insurance — Indemnity Policy — Accident Insurance — Automobiles — Notice of Accident — Breach of Policy.
    Plaintiff, an automobile manufacturing corporation, was insured in defendant company against accidents or injuries to third persons by its motor cars, in testing them or before they were sold. By the terms of the policy, upon the occurrence of an accident, the insured was required to give immediate notice in writing with fullest information obtainable to the agent or home office of the defendant: and if a claim was made on account of any accident the insured was to give like notice and state full particulars. The policy obligated the insurer to settle or defend litigation and hold the plaintiff harmless, when due notice of service and of suit was given. Defendant claimed, in an action on the policy, that notice of an accident for which suit was begun had not been served until over three months after the injury, and that in the meantime one of the testers involved in the injury had left plaintiff’s employ and gone to unknown parts, and it had suffered prejudice from the neglect to give notice. One Page, chief inspector of mechanical parts, who had supervision over the testers, and defendant’s head tester, both learned of the accident shortly after it occurred, but claimed the two testers involved denied the claim. The head inspector had authority to hire and discharge men. Held, that though neither employee who had notice of the injury or claim reported the accident to their superiors, their failure to report did not relieve their employer, and that defendant was discharged from liability on the policy.

    2. Same — Master and Servant.
    Nor did the fact that information concerning the accident came to the head tester and superintendent of mechanical parts from the attorney of the husband of the woman injured, and that they believed the story of the two testers, alter the right of defendant to notice or the obligation of plaintiff under the policy to advise such insurer: immediate notice meant, in the policy, a reasonable time to give such notice.
    3. Same — Notice.
    As a matter of law three months was an unreasonable time to delay in notifying the' insuring company of the claim of injury, its office being only 25 or 30 miles distant from plaintiff’s.
    4. Same — Waiver—Knowledge.
    No waiver of the conditions of the contract of insurance could be inferred from the insurer’s undertaking to defend the policy without asserting any objection of want of notice, and failing to set up that defense until the time of trial, when it first learned of the real facts and that plaintiff had had notice of the claim, .also, where defendant was protected from the ground of contention by a clause in an agreement entered into with plaintiff to the effect that all acts done in the conduct of the litigation, etc., should he without prejudice to the rights under the policy.
    Error to Oakland; Smith, J.
    Submitted October 14, 1915.
    (Docket No. 50.)
    Decided January 8, 1916.
    Assumpsit by the Oakland Motor Car Company against the American Fidelity Company, a foreign corporation, upon a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Reversed; new trial denied.

      Oxtoby & Wilkinson, for appellant.

      Patterson & Patterson, for appellee.

      On liability insurance covering automobiles, see notes in 44 L. R. A. (N. S.) 73, 51 L. R. A. (N. S.) 584, L. R. A. 1915E, 575.
      As to when insured is charged with knowledge of accident so as to require him to give notice thereof as provided for in policy indemnifying against liability for personal injuries to others, see note in 16 L. R. A. (N. S.) 400.

   Steere, J.

In this action plaintiff recovered a judgment against defendant upon an automobile liability policy issued by the latter for the amount of damages plaintiff had paid in satisfaction of a judgment against it for personal injuries sustained by one Sarah Gregory.

Plaintiff is and was engaged .in the manufacture of automobiles at Pontiac, Mich., and on January 16, 1912, secured from defendant, a corporation engaged in liability insurance business, an automobile liability policy which by its provisions agreed, amongst other things, to indemnify plaintiff against loss or liability on account of any bodily injuries accidentally suffered by any person during the testing of its automobiles before sale. Conditions in the policy interposed as a defense in this case are, so far as material, as follows:

“Condition 3. Upon the occurrence of an accident, the insured shall give immediate written notice thereof, with the fullest information obtainable, to the agent by whom this policy has been countersigned, or to the company’s home office. If a claim is made on account of such, accident, the insured shall give like notice thereof with full particulars.
“Condition 4. If thereafter any suit or legal proceedings are instituted against the insured, even if groundless, for damages or expenses incurred on account of an accident covered by this policy, the insured shall immediately cause to be delivered to the agent by whom this policy has been countersigned or to the company’s home office every summons, notice, document, or other process served on him in such suit or legal proceedings, and upon receipt of such summons,” etc.

The insurance company obligates itself to either settle or defend such suit and hold the insured harmless, when so notified.

The accident to Mrs. Gregory, for which she recovered damages, occurred on May 4, 1912, as the result of a horse driven by her and drawing a conveyance in which she was riding becoming frightened at one-of plaintiff’s, automobiles driven before sale by one of.' its testers, for testing purposes, along a public highway on the outskirts of Pontiac. In her action for personal injuries brought in the Oakland county circuit court she ultimately recovered a judgment against; plaintiff herein for $1,500, with costs, which the latter paid, and thereupon demanded indemnity from defendant under its liability policy. Payment was refused for the reason that timely notice of the accident was not given defendant as required by the policy. This action was thereupon instituted, and judgment recovered herein as before stated.

Defendant pleaded and claimed upon the trial that at the time of the accident in question plaintiff did not give-it immediate notice of either the accident or Mrs. Gregory’s claim, although it had knowledge of the same, shortly thereafter, and while both testers involved in it were still in plaintiff’s employ; and the first notice of the affair given by plaintiff to defendant was after suit had been commenced, on August 15, 1912, at which time the tester operating the car which frightened Mrs. Gregory’s horse had left plaintiff’s employ, and his whereabouts become unknown, and as a result of plaintiff’s neglect to promptly notify defendant the latter was prejudiced and deprived of the testimony of a most important and material witness for the defense in the Gregory Case, by reason of which breach of conditions of said policy defendant was released from liability. Whether notice was given within reasonable time'after the accident occurred was submitted to the jury as a question of fact; while defendant urged and moved by timely application that, under the undisputed evidence, it should be disposed of by the court as a matter of law, and a verdict directed in its behalf. Therefore the question for determination by this court is whether, as matter of law, under the undisputed facts, notice was given in compliance with the conditions of the policy heretofore quoted.

At the time of this accident Emmet L. Page was plaintiff’s chief inspector of mechanical parts, and it was one of his duties to supervise the testers. He was over the head tester, said to be a man by the name of Smith, who was directly in charge of the testers with authority to hire and discharge them. The testers were given numbers which they were required to wear conspicuously upon their clothing while on duty. Two of the testers, named Briggs and Wilson, numbered, respectively, 8 and 20, were out testing cars on that day, and it was one of them who frightened Mrs. Gregory’s horse, although neither reported any such incident, and both subsequently denied it. Plaintiff’s rules for employees connected with its testing department, under the head of “Accidents,” contained, amongst other things, the following:

“All accidents, regardless of nature or seriousness, shall be reported in detail to the head tester immediately.”

Although not reported by those under him, the head tester learned of this accident, shortly after it occurred, from Page, to whom it was. reported by an attorney whom Mrs. Gregory’s husband consulted and retained. The attorney called Page to his office by telephone, there told him of the claimed accident, and that Gregory had been in to see them regarding the injury resulting to his wife from it; stated that he was very much worked up, and something would have to be done by way of settlement, and related to Page the alleged circumstances of the accident, to the extent at least, as Page admitted, of the time, the highway on which it occurred, and the numbers of the cars or testers, stating Gregory thought they were Oakland motor test cars and the numbers were 8 and 20. Page testified it was “put up” to him that some one had been thrown out of a carriage, and “claimed it was the negligence of either of these two tester 8 and 20;” that on receiving this notice he investigated, referring the matter to Smith the head tester, and they together interviewed Briggs and Wilson, testers Nos. 8 and 20, whom they ascertained were out on the highway where it was reported the accident occurred on that afternoon, télling them what was claimed, but “both denied anything about any horse being scared,” and denied that there was an accident. Page then visited the attorney’s office and reported he had investigated the matter, and the testers denied having or causing any accident that day.

Neither Page nor Smith made any report of this claim of accident or of their investigation to any of their superiors in the company. Page’s excuse for this is that he was on very friendly terms with the attorney, whom he had previously helped to elect prosecuting attorney, and supposed he had taken the matter up in that capacity, and that the attorney told him in their last interview, if anything turned up further, he would let him know. He admits the attorney made no representations that he was acting officially, does, not deny he said something would have to be done as to a settlement, and, when asked if he made his investigation by virtue of his position, replied:

“I was doing so for the benefit of the Oakland Motor Car Company and the satisfaction of the prosecuting attorney.”

Smith, as head tester, was the person designated by the rules of the company as the one to whom accidents in that department should be reported, and Page was. over him as. inspector and superintendent of mechanical parts. Both had notice of this accident and claim from the attorney of the injured party within two or three days after the event, with data as to time, place, and parties. It was told to Page and referred by him to Smith, although they together made such investigations as. they deemed advisable. If their knowledge was knowledge of the corporation, their reasons or excuses for not reporting the matter to some other department or superior officer of the company is of no importance, as affecting defendant’s rights.

Plaintiff, a corporation organized as an artificial person and recognized as having a legal entity, is in itself unavoidably destitute of all sense of perception and knowledge, except as vicariously possessed and exercised for it by the natural persons composing or representing it. It could only have notice or knowledge of this accident as they came to some officer, agent or employee. Both Page and Smith held in its employ positions of trust and responsibility, with the duty of supervising and directing the conduct and work of subordinates. The company itself by its rules selected and designated Smith as the person to represent it in receiving from those under him notice of accidents. Page was over Smith in a yet more important and responsible pos* ion, as a superintendent of mechanical parts with his office on the same floor as the general manager and factory superintendent, who had immediate supervision over him. The controller upon whom process was served in the Gregory Case stated Page was not directly under him, and he could not tell any more about his duties than that “he was in charge of' inspection, whatever that means.” This case does not involve the question of the knowledge of the testers, which, in violation of the rules, they kept to themselves and denied. It may be conceded their unreported knowledge would not bind the company, but the men who received the notice through such ominous sources as the husband of the injured "party and the attorney he had consulted were superior agents of plaintiff, delegated to assume responsibility, think for others under them, and exercise judgment in the performance of their duties..

In Northwestern Telephone, etc., Co. v. Casualty Co., 86 Minn. 467 (90 N. W. 1110), a workman was caught by caving earth while digging a hole for a telephone pole, and extricated without indications at the time of any serious results. The foreman in charge made no report of the accident to the company. In an action upon a policy containing conditions similar to those, under consideration the court said of the requirement for notice:

“Having contracted to furnish it, respondent’s foremen and men in charge of work when an accident happens are the company’s representatives and agents for that purpose, and the duty rests upon them to report to the proper officers of the company. In this case the foreman had knowledge of the accident, but failed to report it. Having knowledge of the accident, he was bound to exercise his judgment and determine whether it was of sufficient importance for the basis of a claim in damages, and, having concluded it was not, the company was bound by his decision.”

See, also, Woolverton v. Fidelity & Casualty Co., 190 N. Y. 41 (82 N. E. 745, 16 L. R. A. [N. S.] 400), where the subject is reviewed and the same rule declared.

Notice to Page and Smith was notice to the company, and the fact that in exercising their judgment they decided to believe the testers’ denial, or for any other reason concluded the claim was not of sufficient importance to require further attention, does not relieve plaintiff. It was bound by their decision and' nonaction. Defendant received no notice of either an accident or claim until over three months later.

The conditions of the policy required “immediate written notice” of both. The rule is well settled that this is to be construed as meaning within a reasonable time after plaintiff has learned of the accident or claim, provided he exercised reasonable diligence to acquire such information; for the contract imposed upon him the duty of so regulating his business as to ordinarily be advised with reasonable promptness of any accident occurring in its conduct.

“The word ‘immediately,’ although in strictness it excludes all mean times, yet, to make good the deeds and intents of parties, it shall be construed such convenient time as is reasonably requisite for doing the thing.” 9 Am. & Eng. Enc. Law (1st Ed.), p. 931 and note.

This policy was signed by defendant’s State agent and issued from Detroit, where it had an office and agency. Plaintiff had defendant’s Detroit address, and mailed the notice it finally sent there. It was but 25 or 30 miles between the two cities, with daily mails, or oftener, and all modern means of quick communication between them. After notice and knowledge of this accident by plaintiff at Pontiac, it cannot be seriously contended that three months was a reasonably requisite time in which to advise defendant’s office in Detroit, under a condition precedent in a policy requiring it to be done “immediately.”

No disputed questions of fact bearing on reasonableness of the delay are involved. Plaintiff’s only explanation or excuse for the delay is that it had no knowledge, because certain of its officials who would have served the notice were not advised, which under the undisputed facts cannot be sustained as a proposition of law. What is a reasonable time must be determined as a question of law when the facts are not in dispute. Foster v. Fidelity & Casualty Co., 99 Wis. 447 (75 N. W. 69, 40 L. R. A. 833); Travelers’ Ins. Co. v. Myers & Co., 62 Ohio St. 529 (57 N. E. 458, 49 L. R. A. 760); Baker v. Insurance Co., 124 Ind. 490 (24 N. E. 1041); Edwards v. Insurance Co., 75 Pa. 378.

By the conditions in this policy, irrespective of whether any claim was then made for damages, it became the duty of plaintiff to notify defendant of an accident at once, that the latter might promptly investigate the circumstances and take such steps as were found advisable in order to settle or prepare for any defense which it might ultimately be called upon to make. Whenever a claim for damages became known to plaintiff it was also required to notify defendant immediately of the fact, in that respect differing in phraseology from the policy under consideration in Grand Rapids Electric Light, etc., Co. v. Fidelity & Casualty Co., 111 Mich. 148 (69 N. W. 249), cited by plaintiff, which was construed by this court as requiring notice only upon both happening of an accident and receipt of notice of a claim made on account of it, following Anoka Lumber Co. v. Fidelity & Casualty Co., 63 Minn. 286 (65 N. W. 353, 30 L. R. A. 689). The policy involved here is not susceptible of that construction.

Attention is called in plaintiff’s brief, with citation -of authorities indicating a claim of waiver or estoppel, to the fact that the insuring company took charge of the defense in the Gregory Case and did not raise the point of want of notice until that case was on trial. It appears that defendant did take up the burden of defense under assurances and in the belief that plaintiff first learned of the matter when summons was served upon it, and only learned the facts heretofore related, as to previous knowledge of plaintiff’s agents, when they were brought out upon the trial, whereupon counsel raised the objection and insisted that defendant had been both misled and handicapped in fact by the long delay in notifying it, during which time it had no opportunity to see the parties and investigate before litigation was. initiated, and the tester Briggs, who, as Mrs. Gregory claimed, drove the offending automobile, had left plaintiff’s employ and afterwards disappeared, for which reasons counsel proposed to turn the defense over to attorneys of the motor car company and retire from the case. Assuming the burden of such defense would not constitute a waiver so long as defendant had no knowledge of plaintiff’s-previous information and forfeiture of its rights under the policy (National Construction Co. v. Insurance Co., 176 Mass. 121 [57 N. E. 350]); but whatever questions this situation might otherwise present, we are satisfied defendant is fully protected by an agreement thereafter entered into, which provides, after full recitals :

“That all acts of the parties hereto with reference to the conduct of the defense of said [Gregory] case shall be considered as done without prejudice to their respective rights under said automobile policy.”

Contracts of insurance against the consequences of the insured’s negligence are, as a rule, limited, and but partial. Conditions for notice of the event insured against, similar to those under consideration, are common in policies for most kinds of insurance. They are nothing new or misleading. Such stipulations, when contained in the policy, are recognized as valid, and must be complied with before recovery can be had, if within the power of the insured. Plaintiffs right to indemnity flows from this policy, constituting the written agreement between the parties which they voluntarily entered into and of which these conditions form a part. Failure by plaintiff to observe the condition precedent of this executory contract was failure to perform the contract on its part. It first breached the contract, and by such nonperformance it released the other contracting party. In order to maintain this action, it was bound to give notice of both the accident and claim for damages as and when by the terms of the contract it agreed to do so.

For the foregoing reasons, we are constrained to conclude that, as a matter of law, under the undisputed evidence, plaintiff failed to give timely notice of the accident and claim in compliance with its agreement as expressed in the conditions of this policy under which recovery is sought, and a verdict should have been directed for defendant.

The judgment is therefore reversed, without a new trial.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Brooke, and Person, JJ., concurred.


text:
    ADLER v. KATUS.
    Vendor and Purchaser — Breach of Contract — Void Agreement —Parties.
    Under a written contract of sale of real property signed, by one joint owner in his own name and as agent for and. in behalf of his co-owner, who, however, had never authorized the execution of the contract, the vendee could recover back what he had paid on the contract of purchase, and the refusal of the buyer to accept a writing in accordance with the receipt or memorandum • containing the terms was justified. The contract was not binding on one of the parties who purported to execute it, and, being void as to him, was unenforceable, unless it could be determined from the provisions that the other in executing it intended to obligate himself to convey a good title at his peril, or unless it was of a severable character.
    Error to Wayne; Hosmer, J.
    Submitted October 15, 1915.
    (Docket No. 102.)
    Decided January 3, 1916.
    Assumpsit in justice's court by Hyman Adler' against Peter Katus and another for money had and received. A judgment for defendants was reviewed in the circuit court on certiorari. Judgment for defendants. Plaintiff brings error.
    Reversed.

      Beckenstein & Wienner and Jasper C. Gates (Maurice Sugar, of counsel), for appellant.

      William E. Henze, for appellees.
   This action was begun in justice’s court, where the defendants had judgment. It was then taken to the circuit court on certiorari, where the judgment rendered by the justice was affirmed. The return made by the justice to the circuit court shows that:

“On the trial of said cause, the defendant Peter Katus, a witness sworn on the part of the plaintiff under the statute, and the only witness to testify, testified that the plaintiff entered into an agreement for the purchase of a parcel of real estate which was owned by Peter Katus and Charles J. Katus as joint owners. This agreement was in the words and figures as follows, to wit:
“ ‘Received from Hyman. Adler the sum of five hundred (5500.00) dollars to apply on the purchase money to the amount of twelve thousand five hundred dollars for the following described property, to wit: Lot numbered eighty-nin© (89), plat of part of P. C. 181, north of Jefferson avenue, Antoine Rivard farm, subdivided into lots 1841, said lot being situate on the northwest corner of Macomb and Rivard streets, having a frontage of fifty feet on Macomb street and one hundred five (105) feet along the west line of Rivard street to a public alley; the remainder of the purchase money to amount to twelve thousand dollars to be paid as follows: Two thousand' (52,000) dollars upon delivery of property by land contract and a certified abstract of title for examination on or before September 1, 1914, provided papers are completed by that date, and the remaining ten thousand dollars in quarterly payments of two hundred fifty (5250) dollars or more, payments to include principal and interest at the rate of six per cent, per annum.
“ ‘In addition thereto, the purchaser agrees to discharge, when due, aU taxes and assessments and to keep property fully covered by insurance in amounts approved by the seller, said policies to be held by the seller in escrow until such time as the property has been fully paid for.
‘“It is'understood that the purchaser is to draw all rents .from and after date of land contract when the two thousand dollar payment has been made.
“ ‘Peter Katus,
“ ‘Charles J. Katus,
“ ‘By Peter Katus.
“ T do hereby agree to purchase the property above described and on the terms and conditions herein set forth.
“ * H. Adler.
“ ‘Aug. 15, 1915. Detroit, Michigan.
“This agreement was signed by Peter Katus, who also affixed the signature of the said Charles J. Katus in the absence of the said Charles J. Katus. Said Peter Katus had no written authority from said Charles J. Katus to sell this property nor to execute contracts for the sale of real estate in his name. Plaintiff paid down, at the execution of this agreement, the sum of $500. About a month later a land contract for the sale and purchase of the premises described in the agreement was tendered to the plaintiff, bearing the signatures of both Peter Katus and Charles J. Katus. The plaintiff refused to accept,this contract.”

The foregoing was all the evidence given upon the trial. The plaintiff insists that the contract is void under the statute of frauds, and that he is entitled to recover the money paid to defendants, as paid without consideration; while the defendants argue that the contract is binding upon Peter Katus, at all events, and that it should be treated as if it had not been executed on behalf of Charles J. Katus at all.

Person, J.

(after stating the facts). If a promise to convey the land is to be implied from' this memorandum, it is a promise which purports to have been made by Peter Katus and Charles J. Katus, jointly, and not by Peter Katus alone. It acknowledges the receipt of the money by both, and implies a joint conveyance, if any. Peter Katus does not agree to procure a conveyance from Charles, but the import of the writing is that Charles himself agrees to convey his interest. Should we construe this as a contract by Peter alone, as vendor, we would be making for the parties a contract they never made for themselves. So far as the memorandum shows, the plaintiff did not intend one which could not be specifically performed without the subsequent consent of Charles, nor did Peter intend to make .one by which he bound himself, at his. peril, to obtain a conveyance from Charles. The agreement being void as to Charles, and not severable, is entirely void. This case is ruled by Kooman v. De Jonge, 186 Mich. 292 (152 N. W. 1016).

The contract being void, inasmuch as the memorandum was not signed by Charles, nor by any one authorized in writing to sign for him, plaintiff was not bound to accept the written draft when subsequently signed by both Charles and Peter. Dickinson v. Wright, 56 Mich. 42 (22 N. W. 312); Scott v. Bush, 26 Mich. 418 (12 Am. Rep. 311); Kelsey v. McDonald, 76 Mich. 188 (42 N. W. 1103); Ducett v. Wolf, 81 Mich. 311 (45 N.. W. 829); Krool v. Match Co., 113 Mich. 196 (71 N. W. 630).

The judgment is reversed, and a new trial granted.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.


author: Kuhn, J.

text:
    TOLEDO, SAGINAW & MUSKEGON RAILWAY CO. v. SHAFER.
    1. Drains — Statutes—Certiorari—Proceedings.
    While 2 Comp. Laws, § 4333 (1 Comp. Laws 1915, § 4894), provides that a drain may be laid within the right of way of any railroad, if it shall not injure the roadbed, and provides for eminent domain proceedings to condemn a right of way, it is also enacted that the drain shall be laid along private property if the jury or commissioners determine that it can be as well laid on the private lands, and the purpose of the act seems to have been to have all matters pertaining to the location and construction forever determined in the proceedings to establish it, or on review by certiorari.

    2. Same — Equity—Ebaud.
    But a bill in equity was not demurrable under section 15 of the drain law, where it charged fraudulent intent on the part of the commissioners who located the drain, in determining that it should be constructed on the railroad right of way, that the drain would be better located, on private lands, etc.; the remedies afforded by the statute not being adequate in the presence of fraudulent action.
    Appeal from Kent; McDonald, J.
    Submitted October 18, 1915..
    (Docket No. 145.)
    Decided January 3, 1916.
    Bill by the Toledo, Saginaw & Muskegon Railway Company and another against Wilmarth ,T. Shafer and another, as drain commissioners, to restrain defendants from constructing a drain. From an order sustaining the demurrer of defendants complainants appeal.
    Reversed.

      Clapperton, Owen & Fatten (L. C. Stanley, of counsel) , for complainants.

      Earl F. Phelps (Louis H. Osterhous, of counsel), for defendants.

      Generally, on procedure in establishment of drains, see note in 60 L. R. A. 172.

   Kuhn, J.

Complainants by their bill filed in this cause seek to enjoin the defendants from constructing a drain on their right of way. Defendants demurred on the following grounds:

(1) That the complainants have an adequate remedy at law.

(2) That no facts from which fraud is fairly inferable are set forth in the bill of complaint.

(3) That complainants’ action is premature, for the reason- that the defendants have not progressed to the -point of actually digging said drain.

(4) That the matters complained of have been judicially tried out and determined by the special commissioners, whose determination was final.

An appeal is taken from an order sustaining the demurrer.

Section 15 of the drain law, being section 4333, 2 Comp. Laws (1 Comp. Laws 1915, § 4894), and section 3390, 2 How. Stat. (2d Ed.) provides:

“Drains may be laid along the line of any railroad within its right of way: Provided, such drain shall not be to the injury of the roadbed. Whenever it is proposed to construct a drain along the line, and within the right of way of any railroad, and the company owning or operating such road shall refuse or neglect to permit such drain to be constructed, or release the right of way therefor within the time prescribed in section four of chapter three, such release shall be obtained in the same manner as is provided in this act for obtaining private lands: Provided, that no drain shall be constructed along the line of any railroad without the consent of the company owning or operating such road, if it shall appear to the special commissioners or jury that such drain can equally well be laid on private lands.”

Proper proceedings were taken to lay out the drain in question, as provided for by the drain law, and no appeal was taken as provided therein, and no attempt was made to review the proceedings by the writ of certiorari. An examination of the drain law clearly discloses that it was the intention of the legislature to have all matters pertaining to the locating and constructing of a drain, in the absence of fraud, tried out, determined, and forever settled in the direct proceedings to establish the drain or on certiorari, as provided for in the statute. Crandall v. McElheny, 146 Mich. 191 (109 N. W. 261); Auditor General v. Bolt, 147 Mich. 283, 287 (111 N. W. 74); Grandchamp v. McCormick, 150 Mich. 232 (114 N. W. 80); Lickly v. Bishopp, 150 Mich. 256 (114 N. W. 69); Troost v. Fellows, 169 Mich. 66, 70 (134 N. W. 1011).

However, the bill before us charges the commissioners with fraudulent conduct, in that they—

“Knowing that the construction and maintenance of the proposed drain along the right of way of your orators as aforesaid would injure and destroy the property of your orators for railroad purposes, and with full knowledge that the construction and maintenance of a drain upon said right of way was wholly unnecessary, and that it could as well be laid out, constructed, and maintained upon private property, even more advantageously for the purpose of said drain, deliberately and fraudulently ignored the rights of your orators, and for the purpose of favoring the property of the private owners and saving some expense in the construction of said drain, in deliberate violation of the statute aforesaid, made a determination and finding in a report bearing date of August 29, 1913, that it was necessary to lay said drain upon said right of way to the lineal extent above mentioned, providing that said drain should be narrowed to 25 feet in width along said right of way, that is to say, 121/2 feet wide on each side of the center line of said drain, and that the grade thereof along said right of way should be 18 inches above that of the first survey thereof in said proceeding, and they further state as follows: ‘And we are of the further opinion that said drain cannot equally as well be laid upon private property as upon the property of the Grand Trunk Railway Company of Canada.’ ”

This is also alleged in different language in other parts of the bill.

On this hearing these allegations of the bill must be taken as true, and we are of the opinion that they sufficiently state facts which make out a case of equity, and that therefore the case should be heard on the facts. The truth of the allegations with reference to the fraudulent conduct of the drain commissioners can only be determined after the testimony has “been taken. Zabel & Harmon v. Harshman, 68 Mich. 270 (36 N. W. 71); Hudlemyer v. Dickinson, 143 Mich. 250 (106 N. W. 885, 108 N. W. 1116).

Being of the opinion that equity has jurisdiction, the order sustaining the demurrer should be reversed, and the defendants be allowed the usual time in which to file an answer, with costs to appellant.

Stone, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.


author: Person, J,

text:
    AUDITOR GENERAL v. STONE.
    1. Taxation — Board of Review — Sessions.
    It is provided by 1 Comp. Laws, §§ 3852, 3853 (1 Comp. -Laws 1915, §§ 4023, 4024), as amended by Act No. 326, Pub. Acts 1907, that tbe board of review shall hold two sessions, at the first of which it may of its own motion or upon cause shown, correct all errors as to valuation upon the assessment roll as submitted to them by the supervisor and enter upon the roll at that time the valuation as fixed and determined by it; ■ the second meeting to begin on the second Monday in June and continue during that and the following day. Defendant’s agent called on the supervisors and examined the roll betwe.en the dates of the two meetings, but found no changes in valuation or assessment on the roll. He did not discover that an attempt had been made on che record of the board of supervisors to increase the assessment. There was evidence that such change had been made at the first session and noted in pencil on the assessment roll: also, that the agent did not examine it as he claimed to have done. The lower court found that the agent examined the roll, which contained no change in valuation and that the determination had been entered on the record of the meeting of the hoard at its first meeting. Held, that the taxpayers were justified in relying on the assessment roll and not appearing at the second meeting of the hoard: also, held, that they were misled by the failure to enter the changes on the roll and to follow the provisions of the statute.
    • 2. Same — Doing Equity.
    As a condition of relief the defendants are required to pay the taxes that would have been properly assessed against the lower or original valuation, and the decree of the court is modified accordingly.
    Appeal from Ontonagon; Cooper, J.
    Submitted June 17, 1915.
    (Docket No. 66.)
    Decided January 3, 1916.
    Petition of Oramel B. Fuller, auditor general, for the sale of lands delinquent for taxes: On objections filed by Galen Stone and others. From a decree for petitioner, defendants appeal.
    Modified and affirmed.

      John Jones, Prosecuting Attorney for Ontonagon county, for petitioner.

      M. J. Sherwood, for defendants.
   Person, J,

The defendants.are owners of the east fractional half of section 4 in the township of Greeland, Ontonagon county, and contest the auditor general’s petition for a decree against said land for the taxes of 1911. The land was assessed that year by the supervisor at $20,000, and this assessment was increased by.the board of review to $50,000. The contest grows out of this increase in valuation made by the board of review. It is charged by defendants that this increase was excessive and fraudulent. But upon 'examining the record we are not convinced that the board acted in bad faith in making the increase; and, whether the increase did or did not result in an excessive valuation, the defendants failed to appear before the board for the purpose of questioning it. Petoskey, etc., Gas Co. v. City of Petoskey, 162 Mich. 447 (127 N. W. 345), and cases there cited. And this leads us to the principal question in the case: Were the defendants so misled regarding the action of the board of review in increasing the assessment as to result practically in depriving them of an opportunity to contest such increase before that board?

There was a very lively contest as to the facts in the case. The tax law, as is well understood, provides for £wo separate and distinct sessions of the board of review. At the first session, to be held on the Tuesday next following the first Monday in June, and to be continued during the next day, if necessary, the board is authorized, of its own motion, or upon cause shown, to correct all error as to valuation upon the assessment roll as submitted to them by the supervisor. And the board is required to enter upon the roll at that time each valuation as fixed and determined by it. 1 Comp. Laws, § 3852, as amended by Act No. 326, Pub. Acts 1907 (1 How. Stat. [2d Ed.] § 1797; 1 Comp. Laws 1915, § 4023). The power of the board to change any valuation upon its own motion ceases at the close of this first meeting. Auditor General v. Sparrow, 116 Mich. 574 (74 N. W. 881). The second meeting of the board begins on the second Monday in June, and must continue during that and the following day. The object of this second meeting is to correct any assessment upon complaint of the owner of the property and cause shown. 1 Comp. Laws, § 3853, as amended (1 How. Stat. [2d Ed.] § 1798; 1 Comp. Laws 1915, § 4024).

It is claimed on behalf of defendants that their agent called upon the supervisor of the township of Greeland in 1911, on one of the days intervening between the first meeting of the board of review of that township for that year and its second meeting, and examined the assessment roll of the township. The agent testified at the hearing that there was no entry upon the roll at that time indicating any change by the board of review in the assessment as made by the supervisor, and that he never knew, nor did the owners know, until the time had arrived for the payment of taxes, that the supervisor’s assessment of $20,000 had been increased by the board to $50,000. The supervisor of the township for that year also testified at the hearing, and denied as emphatically that the agent made any examination of the roll at all. There was also testimony tending to show that the change in valuation was made at the first session of the board, and that it was entered at the time in pencil upon the assessment roll. There was also testimony that the board of review kept a record of its proceedings as required by law, although the clerk of the township was unable to produce or find any such record. From this conflict of testimony the circuit judge who heard the case found, as matter of fact, that the agent did examine the assessment roll, and that the increase in valuation had not been entered therein, but that it had been really fixed by the board at its first meeting, and entered by it in the record of its proceedings. That, at least, is our understanding of the findings of fact made by the judge, and we are inclined to believe that they are correct. Assuming that both the agent and the supervisor were giving each the best remembrance he had of the matter, as, no doubt, he was, it would seem that the recollection of the agent, who had a definite purpose in examining the roll, and who says there were definite results from the examination, ought to be more vivid than that of the supervisor, who was merely called upon to produce the roll for examination.

This being true, we are directly called upon to determine whether a property owner, after the first meeting of the board of review has been closed and adjourned, may rely upon the fact that the assessment roll shows no change in the valuation of his property, and may therefore remain away from the second meeting of the board if he is satisfied with the supervisor’s valuation.

In Auditor General v. Ayer, 122 Mich. 136 (80 N. W. 997), it was said:

“It is true that there is testimony showing that the entries of the amounts fixed by the board were not made at that time; but the carrying out of the amounts fixed by the board was mere clerical work, and, if the board actually acted upon the question of values at the time fixed, the fact that such values were not carried out in the appropriate column within the time was but an irregularity, which would not make the taxes void.”

It was evidently in view of what was said in that case that the circuit judge in the case at bar, after finding that here the board of review had agreed at their first meeting to increase the valuation of the land in question to $50,000, decided that the agent of defendants should not have relied upon the failure of the assessment roll to indicate such increase, but should have gone further, and consulted the records of the" proceedings of the board, and that, not having done so, the validity of the increase, and of the taxes levied thereon, cannot now be questioned. But the same thing, in substance, has been said of the record of its proceedings to be kept by the board of review. Auditor General v. Iron Co., 132 Mich; 454 (93 N. W. 1080). In the latter case it was shown affirmatively that the owner of the land had not suffered any injury from the failure of the board to keep a record of its proceedings, and in the Ayer Case it did not appear that any one had been misled by the failure of the board to enter its valuations upon the roll. Undoubtedly both cases were rightly decided, because it is provided by section 3922, 1 Comp. Laws (1 How. Stat. [2d Ed.] § 1870; 1 Comp. Laws 1915, § 4098), that:

“No tax assessed upon any property, or sale therefor, shall be held invalid by any court of this State on account of any irregularity in any assessment, or on account of any assessment or tax roll, not having been made or proceeding had within the time required by law, or on account of the property having been assessed without the name of the owner, or in the name of any person other than the owner, or on account of any other irregularity, informality, or omission, or want of any matter of form or substance in any proceeding that does not prejudice the property rights of the person whose property is taxed.” (Italics are ours.)

It was not held in the Ayer Case that the language of the statute, “The board shall pass upon each valuation of each interest, and shall enter the valuation of each, as fixed by it, in a separate column,” was immaterial; nor was it indicated that the board of review were not under obligation to obey this statutory requirement. On the contrary, their failure to do so was recognized as an irregularity. But in that case it was an irregularity without injury, because the owner of. the land did not consult the roll or rely upon it. In the case at bar the injury was direct and material, if the owners of the land had a right to rely upon the assessment roll, and shape their conduct accordingly.

And why should not a property owner, anxious about his assessment, have the right to rely upon what the assessment roll shows? It is a public record. It is required by law, not only that the valuation fixed by the supervisor shall appear thereon, but also that the board of review, at their first meeting, shall enter therein, in a separate column, the valuations which they have fixed. To enter these valuations, as determined by the board of review, is a very short and easy matter. The entire situation is then open and clear to the owner of property. At the first meeting of the board they may of their own motion, or in cause shown, add property to the roll and increase or decrease valuations. At their second meeting each property owner may state his objections to the valuations the board have decided upon.. Between these two meetings the statute allows a period of several days in which property owners may examine the roll, consider the valuations made by the board, and determine whether they find anything objectionable in the values arrived at, and, if they do, to prepare their showing for the second meeting. And no reason is apparent why the property owner should be required to consult the records of the board, rather than the assessment roll. It is directed by law that each shall show the valuation of his property, and the one record is of as high a grade as the other. The assessment roll is the more natural and easily accessible source of information.. If the agent of the defendants, in the case at bar, examined the assessment roll during the period between, the first and second meetings of the board of review,, as it has been found he did, and found no record of an increase in valuation by the board, he had a right to rely upon the information thus obtained, and was not required to appear at the second meeting of the board.

The result was equivalent, in effect, to á denial of opportunity to present, at the second meeting of the board, his objections to the increased valuation; and the assessment stood, as made by the supervisor, at $20,000. The defendants ought to pay the amount of taxes that should have been spread against such valuation, and the decree will be modified accordingly, and, as modified, will be affirmed. If the parties cannot agree upon the amount of the tax, that amount will be determined at the settlement of the decree.

Decree modified and affirmed.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.

This case, having been submitted on briefs, without oral argument, was reassigned after the death of Justice McAlvay.


text:
    HALL v. HALL.
    ■ Deeds — Notary Public — Presumptions—Acknowledgment.
    A decree dismissing the bill of a married woman to cancel or set aside a conveyance of her dower interest in a farm, was justified by proofs which failed to overcome the legal presumption of the correctness of the notarial certificate, appearing on the instrument, and which failed to convince the circuit judge that she had not signed the conveyance, showing that the notary who remembered the transaction secured her acknowledgment in the usual way, although she denied executing or acknowledging it.
    Appeal from Huron'; Beach, J.
    Submitted October 18, 1915.
    (Docket No. 136.)
    Decided January 3, 1916.
    Rehearing denied April 21, 1916.
    Bill by Jessie E. Hall against James H. Hall and others to set aside a deed, and other relief. From a decree dismissing the bill of complaint, complainant appeals.
    Affirmed.

      Hall, GMard & Temple, for complainant.

      Paul Woodworth and Thomas Wellman, for defendants.
   Moore, J.

The complainant was the wife of defendant James H. Hall. He was a man of affairs. In 1905 Mr. Hall had a bank at Port Austin which was in charge of his son H. Le Roy Hall, cashier. He had a bank at Kinde in charge of his son Ernest G. Hall, cashier. He was also the owner of considerable real estate; one tract of which, containing 738 acres, was known as the Clover Blossom farm. Some disagreements had arisen between Mr. and Mrs. Hall, but, so far as the record discloses, they were living together. Mr. Hall was indebted to his brother Charles L. in a considerable sum, and was also indebted to David I. Salisbury in the sum of $3,000 to $5,000. Mr. Hall decided to form a corporation to be called the “Clover Blossom Farm Corporation.” He drew a deed from himself and wife of the 738 acres running to the Clover Blossom Farm Corporation. The deed was given to his son Le Roy Hall, who was a notary public, who took it to his mother, who signed it. The witnesses were a daughter of Mr. and Mrs. Hall and the son H. Le Roy Hall. A little later the deed was put upon record. The corporation was at once formed, with a capital of $50,000, 498 shares of the par value of $10 were issued to Mr. Hall, one share to H. Le Roy Hall, and one share to Ernest G. Hall. Mr. Salisbury increased his loan to $10,000, and Mr. Hall assigned to him 140 shares of the stock of the corporation as security. Mr. Hall also pledged 100 shares to his brother Charles L. Hall, whose loan to John H. Hall had increased to more than $7,000. Mr. Hall’s business affairs did not improve, and March 2, 1912, his banks were compelled to suspend payment. Two days later he assigned the assets of the banks to trustees. Still later involuntary bankruptcy proceedings resulted in the appointment of a trustee in bankruptcy.

It is the claim of the complainant that in November, 1911, she saw an item in the newspaper of a transfer of some of the land comprising the Clover Blossom farm, which surprised her, as she had not been asked to sign the deed; that she then instituted inquiries, which resulted in her learning for the first time that it was claimed she had signed a deed of these lands to the Clover Blossom Corporation. When she learned the situation she commenced a divorce proceeding against Mr. Hall on February 21, 1912, and on March 8, 1912, she filed her bill of complaint against the trustees to whom Mr. Hall had made his assignment to recover her dower interest in certain lands and to set aside the deed made in 1905 to the Clover Blossom Farm Corporation. March 18,1913, a decree of divorce was granted complainant. Her property rights were determined, except as to her rights in the Clover Blossom farm property which rights were to await the outcome of the case after á hearing. The case was heard in open court, and a decree was entered dismissing the bill of complaint. The case is brought here by appeal.

In the trial in the court below James H. Hall was called by the complainant under the statute for cross-examination. Mrs. Hall testified at great length. The daughter who was a witness was called. The son H. Le Roy Hall testified, in substance, that the banks controlled by his father required more funds, and that it was considered an unwise business policy to mortgage the land for fear of the effect on depositors, and it was decided to incorporate the farm and use the stock as required as collateral security to secure the money advanced; that, in pursuance of this policy, the deed was prepared by his father, and was given him to take to his mother to secure her signature; that he took the document as was customary, went to the mother, told her that they were incorporating "The Farm,” and that the deed was. a deed to the corporation of the farm property; that she signed the deed together with the bill of sale, which was the accompanying document conveying the personal property to the corporation; that he then took the acknowledgment, and his mother acknowledged that the execution was her free act and deed; that the paper was witnessed by his sister Florence L. Hall, and was turned over to the corporation and the incorporation was completed! Mrs. Hall denied his version of what happened. She also denied the giving of many other deeds and mortgages. When confronted with them she admitted they bore her signature, but declared she did ' not know what they were when she signed them.

In Hourtienne v. Schnoor, 33 Mich. 274, the complainant filed her bill to avoid a mortgage on her homestead, claiming she never knowingly signed or acknowledged it. In affirming a decree dismissing her bill of complaint, the court said in part:

"All presumptions in cases of this kind must be treated with reasonable respect to the inprobability of misconduct in a reputable officer, or of forgery which he ought to have discovered if it existed; and the burden of proof was on complainant to make out a plain case.”

See Johnson v. Van Velsor, 43 Mich. 208 (5 N. W. 265); Cameron v. Culkins, 44 Mich. 531 (7 N. W. 157); Dikeman v. Arnold, 78 Mich. 455 (44 N. W. 407).

In affirming a decree holding that the alleged release of a mortgage was a forgery the court stated the rule as follows:

"It is doubtless true in relation to deeds, mortgages, and releases that ‘all presumptions are in favor of the certificate, and it must be treated with reasonable respect to the improbability of misconduct in a reputable officer, or of forgery which he ought to have discovered if it existed, and the burden of proof is on the party denying it to make out a plain case’ (Hourtienne v. Schnoor, 33 Mich. 274; Johnson v. Van Velsor, 43 Mich. 219; Dikeman v. Arnold, 78 Mich. 470 [44 N. W. 407]); and that a certificate in proper form can be impeached only by clear, convincing, and satisfactory proof that it is false and fraudulent (Barker v. Avery, 36 Neb. 599 [54 N. W. 989]; Phillips v. Bishop, 35 Neb. 487 [53 N. W. 375]; Insurance Co. v. Nelson, 103 U. S. 544; Russell v. Theological Union, 73 Ill. 337; Bailey, Wood & Co. v. Landingham, 53 Iowa, 722 [6 N. W. 76]; Smith v. Allis, 52 Wis. 337 [9 N. W. 155]; Barrett v. Davis, 104 Mo. 549 [16 S. W. 377]). The testimony offered by Miss McBrian meets these requirements.” Saginaw Building, etc., Ass’n v. Tennant, 111 Mich. 515 (69 N. W. 1118).

See, also, Shelden v. Freeman, 116 Mich. 646 (74 N. W. 1004).

The trial judge, who is a man of great experience, saw and heard the witnesses in open court. His decree indicates a failure in his judgment on the part of complainant to make a case.

We have not overlooked the cases called to our attention by the solicitors for the complainant of Camp v. Carpenter, 52 Mich. 375 (18 N. W. 113), and Wright v. Wright, 79 Mich. 527-531 (44 N. W. 944). A reference to them will show they are very different cases from the one we are considering.

' The pivotal question is one of fact. It would profit no one to set out the testimony in detail. We have gone over this voluminous record with care, and we think . the decree of the court below was a proper one.

It is affirmed, with costs.

Stone, C. J., and Kuhn, Ostrander, Bird, Steere, Brooke, and Person, JJ., concurred.


text:
    KRUIS v. GRAND RAPIDS, GRAND HAVEN & MUSKEGON RAILWAY CO.
    1. Negligence — Death — Presumptions — Contributory Negligence.
    It is a presumption of law that one killed by accident was in the exercise of due care, no evidence being offered tending to show negligence on the part of the deceased.
    2. Same — Electricity—Telephones.
    In an action for the death of a pedestrian who came in contact with a wet fence charged with an electric current from the third rail of an electric railway, it was not error to submit to the jury the question of negligence of defendant telephone company, which permitted a loose wire to dangle from the arm of its pole into the highway for two months, and whether or not a reasonably prudent person ought not to have foreseen that the wire might come in contact with the third rail and the fence, or that children or some natural cause might produce injury.
    3. Same — Evidence—Proximate Cause.
    And the defendant was liable unless a responsible and independent human agency intervened between its negligent act and the resulting injury.
    4. Same — Probable Cause.
    Mere evidence that certain boys played with the wire, without any showing as to their age, intelligence, or responsibility, was insufficient to relieve defendant of the charge of negligence.
    Error to Kent; McDonald, J.
    Submitted October 20, 1915.
    (Docket No. 167.)
    Decided January 3, 1916.
    Case by Wieger Kruis, as administrator of the estate of Simon Kruis, deceased, against the Grand Rapids, Grand Haven & Muskegon Railway Company and ■ the Citizens Telephone Company, for the wrongful death of plaintiffs decedent. Judgment for plaintiff against defendant Telephone Company, which brings error.
    Affirmed.

      Colin P. Campbell, for appellant.

      Wykes, Dilley & Averill and Fred P. Geib, for appellee.
   Kuhn, J.

This action is brought by the plaintiff as the administrator of the estate of his son, Simon, who was killed on the 19th day of June, 1914, by an electric current carried from the third rail on the right of way of the defendant railway company to a fence separating that right of way from the highway by a loose guy wire suspended from one of the defendant telephone company’s poles. A verdict of no cause of action was directed in favor of the railway company, and one was returned by the jury against the telephone company, the appellant here, for $2,203.25 damages. Judgment being entered for that amount, the case is brought here by writ of error.

The right of way of the railway company runs along the north side of the highway, and is inclosed by a wire fence, and the telephone poles of the defendant telephone company are in the highway near this fence. The guy wire in-question was fastened to the inside end of the cross-arm on one of these poles, and drawn taut around the next pole and fastened close to the ground. It appears conclusively from the evidence that it had been broken about two months before the accident, and had once been fastened to the railway fence, and another time to the pole. Boys had been seen playing with it at times, and the telephone company had been twice notified before the accident that the wire was down, but apparently no attention was paid to it.

The pole from which the wire was suspended was about 16 feet from the third rail, and the wire was long enough to reach that distance several times. There is no direct evidence as to how the guy wire came into contact with the third rail. It 'does not appear how the deceased came into contact with the fence. The accident occurred about 7 o’clock in the morning; the fence and ground being wet with rain that was still falling. It was the theory of the plaintiff that the wire was carried by the wind over the railway fence when it was loose and dangling. There was some testimony that there was considerable wind during the night before the accident. The weather bureau had no record of severe wind at that time, although the director admitted that winds might vary greatly within a few miles. It was the theory of the defendant that the accident was caused by the inter-meddling of boys who carried the wire across the fence and brought it into contact with the third rail. Many children passed along this highway daily, going to school a half mile away or to a berry farm nearby, to which place the deceased was going, at the time of the accident, to pick berries.

Several witnesses testified that on the morning in question three or four boys were seen playing near the third rail at or about the point where the wire was down, and that they were making flashes, and one was seen with a stick. After the accident a stick and numerous short pieces of wire were found on the track, and there were indications of contact with the third rail, and that the pieces of wire had been severed by fusion. These boys had been brought into court under subpoena, but were not called upon to testify.

It is the contention of the plaintiff’s counsel that the defendant was negligent in leaving this wire unfastened in the highway in such close proximity to the third rail, at a point which was passed daily by many c’b.Udren as well as adults, after repeated notice that it was down, and that the question was properly submitted to the jury whether the defendant, acting as a reasonably prudent person should, ought to have anticipated that the loose wire might in the natural course of events connect the fence with the third rail and thus cause injury or death to persons using the highway. Defendant’s counsel, on. the other hand, contends that it was incumbent on the plaintiff to show how the wire came into contact with the fence and rail, or that it occurred without the independent intervention of responsible third persons, and that the defendant would not, in the exercise of reasonable prudence, have anticipated that the wind would blow the wire on the track, if that really happened.

The court, with reference to the question of negligence, charged the jury as follows:

“If you find that this wire was allowed to remain there hanging in the highway as the plaintiff claims, and that the defendant knew, or by ordinary diligence would have known, that fact, that is, that it was out of place and dangling in the highway, the defendant would be negligent, but he would not necessarily be liable; and, if you further find that a reasonably prudent person, under the circumstances, might have expected or anticipated that the wire would come in contact with the third rail of the interurban company, and cause such an injury, you would then be justified in finding that the defendant's negligence was the proximate cause of the injury, or one of the proximate causes. By proximate cause I mean the immediate producing cause of the injury. To make it the proximate. cause, the result or injury must be the natural and probable consequence of the negligent act.
“Now, the defendant says that the death of the boy in the manner shown by the evidence was not a natural and probable consequence of the negligent act, that is, of allowing the wire to remain dangling in the highway near the third rail, but that an intervening human agency in the person of three Polish boys produced this injury. The defendant was not bound — it is true the defendant was not bound to anticipate that unauthorized persons would interfere wrongfully with its wire. But if, under the circumstances, considering the manner in which the highway was used and the proximity of the dangerous third rail, and the fact that children frequently passed at this point in the highway — I say, considering these and all the other circumstances — if, under these circumstances, the Citizens’ Telephone Company reasonably should have expected or anticipated that children, acting .from boyish instincts and impulses, would interfere by meddling with or playing with the wire, the act of the defendant would be the proximate cause of the injury, notwithstanding the other intervening cause or the intervening cause. If you find that, acting as an ordinarily prudent person, the defendant might have expected that boys would do whatever you find these boys did, then the defendant would not be relieved of liability by the intervention of the three Polish boys, if you find that they did intervene in the manner claimed by the defendant.”

In the absence of any evidence to the contrary, no person having seen the accident, it is to be presumed that the plaintiff’s decedent was free from any contributory negligence.

We are of the opinion that no error was committed by the court in submitting to the jury the question whether a reasonably prudent person ought not to have foreseen the possibility of the wire coming into contact with the third rail and the fence, having in mind the uses of the highway and the fact that dangling wires which recoil and rebound are attractive to children to play with. That the defendant company was negligent in allowing the loose wire.to remain in the condition that it did, after notice, there can be no question, and the sole question here is whether that negligence can be said to be a juridical cause of the accident.

The authorities uniformly hold that, although there may have been negligence on the part of a defendant in leaving a wire suspended as this defendant did, if that negligence simply created a condition harmless in itself, and the accident was really caused by the intervention of a responsible human agency, the act of the intervening human agency must be said to be the proximate cause of the accident. We are not prepared to say, as a matter of law, upon this record, that the •accident was caused as a result of the intervention of a responsible human agency. The record does not 'disclose how old the boys in question were, but that they were boys, attracted to the-wire by the spirit of play, and undoubtedly with the idea of seeing the sparks fly as it touched the live third rail, is clear. It was the duty of the defendant, in order to relieve itself of liability on this theory, to show that a responsible human agency intervened, which it failed to do. The condition here created might with reason be said to have put a reasonably prudent person on notice that what occurred here, either by the wind or by the intermeddling of the boys, might result, and thus be a probable consequence of defendant’s negligence. The causal connection between defendant’s negligence and the injury would therefore not be broken by the intervention of the other agency.

In discussing this interesting question, Mr. Wharton, in his work on Negligence (section 143), said the following:

“So, where A. makes a fire negligently, but no mischief would result were it not from the negligence of B., who by tampering with the fire causes it to spread to C.’s field, here G'. has no claim against A., supposing that B. is a free and rational agent. It would be otherwise, however, if A. built the fire negligently in a field where children were accustomed to play. Here it would be natural that the children should play with the fire; that they should do so is what the defendant should have foreseen; they are in some sense from their infancy irresponsible. Hence their acts are within the probable consequences of the defendant’s negligence; •and, not constituting an independent liability, do not break the causal connection between the defendant’s negligence and the injury.”

See note to Seith v. Electric Co. (241 Ill. 252 [89 N. E. 425, 132 Am. St. Rep. 204]), in 24 L. R. A. (N. S.) 978; also note to Harrison v. Electric Light Co. (195 Mo. 606 [93 S. W. 951]), 7 L. R. A. (N. S.) 293.

Many interesting cases are cited in the briefs of counsel, but none of them seem to be exactly in point here. Some involve the question of trespassing on the part of children, as the case of Iamurri v. Gas Co., 148 Mich. 27 (111 N. W. 884), which question is clearly not involved here. Here the plaintiff’s decedent was not a trespasser, as he was in the public highway, where he had a right to be. He was not meddling or wrongfully interfering with any of the defendant’s property.

We think the trial judge committed no error in submitting the question of proximate cause to the jury, under the circumstances of this case. That being the only question before us for review, we affirm the judgment.

Stone, C. J., and Moore, J., concurred with Kuhn, J. Ostrander, Bird, Steere, Brooke, and Person, JJ., concurred in the result.