author: Me Alva Y, J.

text:
    HELMER v. VAN WORMER.
    1. Equity — Practice—Evidence—Sworn Answer.
    A sworn answer filed in a suit to foreclose a mortgage had the force of evidence only as to admissions, though the bill required that the answer be under oath.
    2. Witnesses ■— Husband and Wife — Estates of Decedents — Payment — Matters Equally Within the Knowledge of Deceased.
    Evidence in a foreclosure proceeding -by the defendant and his wife that one of the mortgagees, since deceased, had received payment of $1,000 upon the instrument, was incompetent, under 3 Comp. Laws, §10212 (5 Plow. Stat. [2d Ed.] § 12856).
    3. Same — Waiver—Pleading—Evidence.
    The effect of calling for a sworn answer m complainant’s bill was not to waive the statutory prohibition as to testimony relating to matters equally within the knowledge of deceased.
    Appeal from Tuscola; Beach, J.
    Submitted April 8, 1915.
    (Docket No. 24.)
    Decided June 14, 1915.
    Bill by Kate Helmer against Norwood Van Wormer and another to foreclose a mortgage. From a decree for complainant for less than the amount claimed, she appeals.
    Modified and affirmed.

      Fred H. Warren (W. J. Spears, of counsel), for complainant.

      Quinn, Wixson & Quinn, for defendants.
   Me Alva Y, J.

Complainant filed her bill of com-, plaint to foreclose a certain mortgage for the sum of $1,600 given by defendants on their property located in Tuscola county to Theodore Helmer (deceased) and complainant, claiming a balance due of $1,100, with interest. Defendants answered the bill of complaint. An issue was joined, and a hearing of the case resulted in a decree in complainant’s favor for $524.65. From this decree she has appealed.

The facts in the case necessary to be stated are as follows:

On February 19, 1908, complainant and her late husband, Theodore Helmer, loaned to defendant Nor-wood Van Wormer $1,600, taking his promissory note therefor, due 10 years after date, with interest at the rate of 5 per cent., payable annually, secured by the mortgage in question, executed by said defendant Van Wormer and Maria Van Wormer, his wife. It was agreed in the mortgage that payments of $100, or any multiple thereof, might be made at any interest-paying period.

Theodore Helmer died intestate in the city of Detroit, May 8, 1912, and his estate was duly administered in Wayne county. He left complainant, his widow, and no children, surviving him. His estate consisted solely of an undivided one-half interest in the note and mortgage above mentioned, upon which $500 of the principal had been paid with interest- to February 19, 1912, leaving $1,100 of the principal sum unpaid, one-half of which, $550, was inventoried by the administrator as the sole asset of said estate. During the administration of said estate the probate court, upon a petition filed by complainant, his widow, made an order allowing her the sum of $25 per month for maintenance and support, to continue for not more than one year from the date of death of deceased.

Later, on April 28, 1913, the widow presented to the probate court a petition showing the inventory, the appointment of commissioners on claims, an allowance of claims- by said commissioners to the amount of $386.25, that no part of said claims had been paid, and that the estate was insolvent, the entire estate being the undivided one-half of the note and mortgage described; that on May 8, 1913, interest amounting to $67.06 would accrue, which, with the unpaid principal, would make the total value of the note and mortgage $1,167.06, making the interest of the estate therein $583.53. The petition also alleged the allowance for her support heretofore mentioned, amounting to $300, and she elected to take her statutory allowance of $200 from said mortgage. She prayed the court that the administrator be ordered to assign the interest of the estate in and to the note and mortgage to her in payment of said allowances above mentioned, upon her payment into court, or to the administrator, the sum of $83.53, the difference between the allowances and the value of one-half of the note and mortgage.

This petition came on to be heard May 7, 1913, and an order was made and entered by the probate court granting the prayer of the petition. On May 20, 1913, complainant paid the administrator, according to the terms of said order, $83.53, and received from him ah assignment of an undivided one-half of the note and mortgage belonging to the estate. After-wards, on July 8, 1913, the administrator, having rendered his final account, was discharged by the probate court, his bond canceled, and said estate was closed.

On May 23, 1913, complainant, having put the matter into the hands of her solicitor for collection and foreclosure, defendant Van Wormer was notified by registered letter of that fact and of the balance claimed to be due on the note and mortgage. On May 25th he replied that he held receipts given to him by Theodore Helmer (deceased) for $1,500 and had tendered the balance to complainant. On May 27th following counsel for complainant again wrote to Van Wormer, repeating that only $500 was indorsed on the note as payment on the principal, and requested a copy of the receipt for the additional $1,000, inclosing a stamped and addressed envelope for reply. He received no reply to this letter, and on June 16, 1913, again wrote, making' the same request, stating that the expense of foreclosure was undesirable if it could be avoided. A prompt reply came to this letter, as follows:

“Mrs. Helmer knows all about it, and where they are, and has looked them over. If you want to know anything about them, you ask her.”

A few days later counsel for complainant wrote to the attorney for defendant, who is counsel in the present case, a letter of considerable length, reciting his correspondence with Van Wormer, asking for a copy of the receipt in question. The attorney replied promptly, stating:

“It is just a regular receipt for $1,000 to apply on mortgage, signed by Theodore Helmer.”

Upon the hearing of the case complainant introduced the note, the mortgage, the necessary exemplifications of records of the probate court for the county of Wayne, the assignment of the administrator to complainant, ánd the computation of the balance due. Defendants, as witnesses, admitted the execution of the note and mortgage and that the $1,600 was received by Mr. Van Wormer.

The claim was made by defendants that at the time the note and mortgage were given there was an agreement made with Theodore Helmer (deceased), one of the mortgagees, that when defendants had paid $600 on the principal and the interest on the entire sum the mortgage was to be discharged. The alleged consideration for this promise was that years before (1871 to 1884) defendant Van Wormer had cared for, supported, and educated an infant son of Helmer, named Charles, who had been brought to the home of Thomas Van Wormer, the father of defendant Norwood, when about two years old.

The record shows that Theodore Helmer, deceased, and Norwood Van Wormer, were half-brothers, and it also appears that the son of Theodore was taken by him to his mother, then Mrs. Thomas Van Wormer, in 1871, when about 2 years old, and left with her for some years under some indefinite arrangement made by Theodore Helmer. In 1871, when Charles came to live with his grandmother, Norwood Van Wormer was about 13 years old.

The receipt for $1,000, upon which defendants rely as carrying out the agreement claimed to have been made with Theodore Helmer, at the time the mortgage was given, that the mortgage was to be discharged when $600 on the principal ana all interest had been paid, was offered in evidence, and reads as follows:

“Detroit, March 9, 1911.
“Received of Norwood Van Wormer $1,000 to apply on his mortgage.
“Theodore Helmer.”

It is the claim of defendant Van Wormer that this receipt was given to him on the date it bears by Theodore Helmer at Van Wormer’s request, under the following circumstances: Van Wormer had come to Detroit and paid Helmer on this mortgage $68. On their way back from a visit to the cemetery, Van Wormer testified that he said to Helmer:

“ Tf you intend to do as you agreed with me, why not give me a receipt for this money that you are going to give me on the mortgage ?’ He says, T will he says, ‘When we get down town, we will stop in some place and write it.’ ”

He says they stopped at a place where Helmer was acquainted. Van Wormer relates that he had a piece of paper in his pocket upon which he wrote this receipt, and Helmer then signed it.

During the trial objection was made by counsel for complainant to the testimony of the defendants as to all matters equally within the knowledge of the deceased, because incompetent under the statute. The only argument made by counsel for defendants against this objection is that it was waived by complainant in demanding in her sworn bill of complaint a sworn answer by defendants.

Chancery Rule 10, subd. “a,” reads as follows:

“Whenever in a cause a sworn bill of complaint is filed and a sworn answer demanded, the defendant shall be required to file such sworn answer. But neither a sworn bill, nor a sworn answer, shall have the force of evidence, except as to admissions and except on the hearing of motions and petitions: Provided, however, that when a cause is heard on bill and answer the allegations of the answer shall be taken as true.”

In the instant case the cause was heard upon an issue joined between the parties and the proofs were taken in open court. The rule provides in unambiguous terms:

“But neither a sworn bill, nor a sworn answer, shall have the force of evidence, except as to admissions.”

To that extent and no further under this rule does a sworn answer have the force of evidence.

As to all other matters the ordinary rules of evidence must be applied in taking proofs in such a cause, and all evidence offered must be competent. The statute invoked (section 10212, 3 Comp. Laws; 5 How. Stat. [2d Ed.] § 12856), which is too familiar to require quotation, makes both defendants incompetent to testify as to matters equally within the knowledge of Theodore Helmer, deceased. One of the most recent applications of this statute is found in the case of Shepard v. Shepard, 164 Mich. 183, 196 (129 N. W. 201), where the authorities are cited. This removes from our consideration in this case all of the testimony of defendants, Van "Wormer and wife, relative to the so-called $1,000 agreement, wherein it is claimed that at the time of the execution of the note and mortgage Helmer orally agreed that, when defendants had paid $600 on the principal and all accumulated interest, he would cancel and surrender the note; also all testimony relative to the alleged consideration for said promise; also all of defendant Van Wormer’s testimony as to the execution and delivery of the receipt for $1,000 claimed to have been signed and delivered to him March 9, 1911.

The elimination of this incompetent testimony leaves the case made by complainant undisputed. There was no competent evidence in the case to show that any part of the balance claimed to be due on this mortgage, with interest, had been paid. Complainant was entitled to recover the full amount of the balance of $1,100 due and unpaid on said mortgage, with interest at 5 per cent.

The decree of the circuit court will be modified to that extent, and the decree will be entered in this court for said full amount, with interest, and costs of both courts in favor of complainant.

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


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    MACKIN v. DETROIT-TIMKIN AXLE CO.
    1. Master and Servant — Constitutional Law — Workmen's Compensation Act — Validity—Personal Injuries.
    The principle involved in the statute providing for compensation to injured workmen is based on the economic principle of trade risk, in that the losses resulting from personal injuries incident to industrial pursuits are treated like wages and breakage of machinery and as part of the cost of production, and the statute affects fundamental changes in the matter of rules governing the adoption of liability for negligence; but it by no means follows that there is any violation of the spirit of the Constitution in the enactment of such statute. Act No. 10, Extra Session 1912 (2 How. Stat. [2d Ed.] § 3939 et seq.).

    2. Same.
    There is no vested right as to any remedy for a tort to happen in the future, that is protected by the Constitution, and except as to vested rights the legislature has power to change or abolish any existing statutory or common law remedy.
    3. Constitutional Law — Workmen’s Compensation Act — Election oe Remedy- — Notice—Presumptions.
    The objection that the statute -deprives an injured employee of his right to resort to the courts for redress and to claim a jury trial, without waiver, consent or knowledge on his part, is untenable as a ground to declare the statute unconstitutional. Under the provisions of section 8 of pt. 1, the employee is charged with notice of the action of the employer in electing to become subject to the act whether or not the employee has actual notice, and employees come within its terms unless at the time of hiring notice in writing of an election not to be subject to the provisions of the law is served upon the employer.
    4. Same.
    No provision of the Constitution prohibits the legislature from avoiding uncertainty by adopting a rule that the employee shall be conclusively presumed to have notice of his master’s election to become subject to .the compensation act, unless he shall serve such notice as is provided by part 3, § 4, of Act No. 10, Extra Session 1912.
    5. Same — Administrative Functions — Department of Government.
    The Industrial Accident Board is a purely administrative agency created to effect the purposes of the law; though some of its powers are quasi judicial (without that final authority to render enforceable judgments, which constitutes judicial power) it is a proper and constitutional body not open to the criticism that executive, administrative, and judicial functions are combined.
    6. Same — Judgment—Sanction.
    Judicial power involves a hearing and determination of a controversy and final disposition thereof by some order or judgment which needs no additional sanction to entitle it to be enforced.
    7. Same — Titee of Act.
    Under article 5, § 21, of the • Constitution, requiring that statutes shall embrace but one subject which shall be expressed in the title, it is not required that the title contain details or means of carrying out the object of the legislature; if it fairly indicates the general scope of the law, the title is sufficient, and the workmen’s compensation law sufficiently complies with those provisions of the Constitution.
    8. Same — Sufficiency.
    Objections that the statute contains provisions for repealing an existing act relative to contracts of attorneys for services, and creates a right of action against a third party and subrogates the employer to the rights of the employee, also requiring the injured employee to obtain compensation from the insurance company, are not sufficient ground for declaring the law invalid.
    9. Same — Class Legislation — Farm Servants.
    The provisions of the statute that exempt household servants, farm laborers and casual employees do not amount to class legislation or deprive employees of equal protection under the law. Appropriating money for the purpose of effecting the object of the act is not in violation of the State Constitution.

      10. Same — Minors.
    Where plaintiff was not a minor, his objection that the act deprives a parent of his right of action for injury to a child, vías not proper ground for determining the statute to be unconstitutional, where the statute does not indicate that the parent’s action for loss of services has been affected.
    11. Same — Attorney’s Fees — Garnishment—Eight oe Contract. The statutory clause making attorneys’ and physicians’
    fees subject to the approval of the Industrial Accident Board, and the clause relating to the assignment, attachment or garnishment of sums due to an injured employee, relieving the award from his debts, is not unconstitutional for the alleged reason that he is thereby prevented or limited in his right of contract or in the hiring of an attorney of his own choice. Section 12, Art. 2, Constitution.
    12. Same.

      Held, that the general plan, purpose, policy and propriety of this legislation is not &pen to question or subject to constitutional objections raised by claimant.
    Error to Wayne; Hosmer, J.
    Submitted April 12, 1915.
    (Docket No. 44.)
    Decided June 14, 1915.
    Case by Thomas Mackin against the Detroit-Timkin Axle Company for personal injuries. Judgment for defendant upon a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      Dohany & Dohany, for appellant.

      Fred L. Vandeveer (W. P. Belden and Hal H. Smith, of counsel), for appellee.

      Grant Fellows, Attorney General, and'L. W. Carr, Assistant Attorney General, amici curise.

   Steere, J.

This case involves the constitutionality of Act No. 10, Extra Session 1912, known as the workmen’s compensation law, entitled:

“An act to promote the welfare of the people of this State, relating to the liability of employers for injuries or death sustained by their employees, providing compensation for the accidental injury to or death of employees and methods for the payment of the same, establishing an industrial accident board, defining its powers, providing for a review of its awards, making an appropriation to carry out the provisions of this act, and restricting the right to compensation or damages in such cases to such as are provided by this act.” (2 How. Stat. [2d Ed.] § 3939 et seq.).

Plaintiff brought an action ex delicto to recover damages from defendant under the common law for personal injuries sustained while in its employ, filing his declaration in a plea of trespass on the case, properly stating a cause of action, to which defendant pleaded the general issue and gave notice, as a special defense, that it would rely upon said Act No. 10, and offer proof to show that it had elected in due form and prescribed manner to come under the provisions of said act, and in every way met its requirements, but that plaintiff had refused to accept the benefits and the indemnity provided for and offered to him under said act.

Upon the trial it was shown without dispute, and stipulated, that plaintiff was in defendant’s employ continuously for over two months prior to the 8th of October, 1912, upon which day he was injured by an electric shock received while oiling some shafting, and thrown from the step ladder upon which he was standing, falling on a grinding machine, receiving severe bruises and injuries, as a result of which he was confined to his bed and home for several weeks, where he was attended and treated, by a physician employed by defendant; that, owing to defective insulation and equipment in defendant’s plant, the countershaft which plaintiff was oiling had become heavily charged with electricity, and had been in that condition for 8 days and upwards prior to the time of his injury, of which condition he had no previous notice or knowledge.

Over 30 days before said accident defendant had filed a written statement with the Industrial Accident Board electing to be subject to and accepting the provisions of the workmen’s compensation law, adopting one of the provided methods specified in said act for payment of compensation to its employees, which election and adoption of method for payment of compensation were approved by the Industrial Accident Board September 26, 1912. Plaintiff gave no notice to defendant in writing that he elected not to become subject to the workmen’s compensation law, as provided in paragraph 2, § 8, of part 1 of said act, and remained continuously in the employ of the defendant for more than 30 days after it had filed its election to come under the provisions of the act.

Defendant tendered plaintiff in proper time and manner the full amount due him for his injuries under the workmen’s compensation law, which he declined to accept, not because it was insufficient according to the provisions of the act, but on the ground said act was unconstitutional, and he claimed the right to an action for personal injuries and trial by jury under the common law.

It was also stipulated between the parties at the trial that, if said Act No. 10 was found unconstitutional in the particulars claimed by plaintiff’s counsel, he was entitled to have a verdict directed in his favor for an agreed amount, but, if said act was found constitutional, plaintiff could not recover, and defendant was entitled to a verdict in its favor. After argument, on motion of counsel for defendant, the trial court sustained the constitutionality of the act as. to the question raised, and entered judgment on a directed verdict for defendant.

Though more fully elaborated and subdivided, the propositions urged by plaintiff’s counsel against the constitutionality of the act under consideration may be summarized and stated as follows: It conclu-

sively imputes to the employee knowledge of the employer’s election to come under the law; it confers upon the Industrial Accident Board judicial powers; it includes provisions not covered by the title, and the title embraces more than one subject; it discriminates against domestic, farm, and casual employees, and is class legislation; it deprives a parent of right of action for injury to his child; and it deprives an injured employee of the right to be represented by an attorney or agent of his choice, in making all attorney fees subject to regulation by the Industrial Accident Board.

It is to be recognized at the outset that workmen’s compensation legislation of this class, based on the economic principle of trade risk in that personal injury losses incident to industrial pursuits are, like wages and breakage of machinery, a part of the cost of production, works fundamental changes in the familiar principles underlying and governing the doctrine of liability for negligence as heretofore applied to the relation of master and servant. But it by no means follows that this comparatively recent and radical legislation upon the subject, enacted to meet changed industrial conditions, and afford relief from evils and defects which had developed under the old rules of law in negligence cases for personal injuries of employees, violates the spirit or letter of our Constitution. It can be assumed without misgiving that there is no vested right in any remedy for a tort yet to happen which the Constitution protects. Except as to vested rights, the legislative power exists to change or abolish existing statutory and common-law remedies. Common and statute laws only remain in force until altered or repealed. Constitution, Schedule, § 1. In Second Employers’ Liability Cases, 223 U. S. 50 (32 Sup. Ct. 175, 38 L. R. A. [N. S.] 44), sustaining the constitutionality of the Federal employers’ liability act, which abolished the defenses of contributory negligence, assumption of risk where injury was due to violation of a safety statute, and the fellow-servant doctrine, the Supreme Court of the United States quoted with approval the, rule gleaned by Bradbury from its former decisions, as follows:

“A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will * * * of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.”

While legislation providing for compensation of workmen for industrial injuries upon the basis of trade risks relating to the industry, to be charged against it as part of the cost, is of comparatively modern origin in countries where the common law of England has been the foundation of prevailing systems of law, in recent years statutes of that import, similar in purpose, and often with many provisions nearly identical, have been enacted in England, Ireland, Scotland, Australia, New Zealand, the British provinces of North America, and about one-half of the United States. These when brought before the courts of their respective jurisdictions have, as a rule, been sustained in their essential features. Comparison indicates that those who prepared the Michigan act made a thorough study of then existing laws and decisions upon the subject, and, conservatively adhering to tested precedent when available, painstakingly developed a comparatively mild and well-balanced law, avoiding uncertainties and ex-. tremes which some of the more radical acts enacted elsewhere disclose. As a result the questions raised here are not altogether novel, for we find similar provisions in the workmen’s compensation laws of other States have been passed upon in their courts of last resort, in carefully considered and well-reasoned opinions.

In some States the law is made compulsory upon both parties or upon one with choice to the other, giving rise to questions which need not be considered here, since the law in this State, as applied to this case, becomes operative upon neither employer nor employee who does not expressly or impliedly consent; but, if the employer so elects, and the employee does not give written notice to the contrary, he- is conclusively presumed to. have consented, and comes under the act. Plaintiff contends the act is unconstitutional in that particular, contravening both the Federal and State Constitutions, because it deprives an injured employee of his right to resort to the courts for redress and have trial by jury without knowledge, consent, or waiver on his part, and there can be no waiver of constitutional rights without knowledge of the facts upon which it is based. The act, so far as material to that question, provides (part 1, § 8) :

“Any employee as defined in subdivision 2 of the preceding section shall be deemed to have accepted and shall be subject to the provisions of this act and of any act amendatory thereof if, at the time of the accident upon which liability is claimed:
“1. The employer charged with such liability is subject to the provisions of this act, whether the employee has actual notice thereof or not; and
“2. Such employee shall not, at the time of entering into his contract of hire, express or implied, with such employer, have given to his employer notice in writing that he elects not to be subject to the provisions of this act; or, in the event that such contract of hire was made before such employer became subject to the provisions of this act, such employee shall have given to his employer notice in writing that he elects not to be subject to such provisions, or without giving either of such notices shall have remained in the service of such employer for thirty days after the employer has filed with said board an election to be subject to the terms of this act. * * * ”

Part 3, § 4:

“But notwithstanding the failure to give, or the insufficiency of, any such notice, knowledge of all filed statements of election and notices of withdrawal of election, and of the time of the filing of the same, shall conclusively be imputed to all employees.”

The record fails to disclose whether plaintiff did or did not have actual notice that defendant elected to become subject to the act, but he did have constructive notice and was presumed to know the law, and to know that it became operative as to him if his employer elected, unless he gave notice to the contrary as provided in the act.

The Massachusetts workmen’s act (Stat. 1911, chap. 751, pt. 1, § 5), similar in its general scheme to that of Michigan, contains almost the same language as the latter upon the matter of notice, though it does not expressly provide, as here, that knowledge of the employer’s election shall be imputed to the employee. It states:

“An employee * * * shall be held to have waived his right of action at common law to recover damages for personal injuries if he shall not have given his employer, at the time of his contract of hire, notice in writing that he claimed such right, or if the contract of hire was made before the employer became a subscriber, if the employee shall not have given the said notice within thirty days of notice of such subscription.”

In Young v. Duncan, 218 Mass. 346 (106 N. E. 1), plaintiff brought a common-law action for personal injuries against defendant, who had elected to come under the act and asked dismissal of the case on that ground. Plaintiff offered to show defendant had not given notice of his election and she had no knowledge of the fact. In a well-reasoned opinion reviewing the act and its purpose at length, the court ruled the proposed evidence inadmissible, that reasonable provisions were made for the employee to exercise an election, and, irrespective of actual notice, plaintiff must be held to have accepted the act by failure to give notice that she would not be bound by it, saying in part:

“The section in question affects no existing property rights. It deals with no property right after it has come into being. It affects a situation which antedates any property right arising out of tort. It simply establishes a status between subscribers under the act and their employees in the absence of express action by the latter manifesting a desire to elect a different status. No complaint justly can be made that the section compels the employee to elect without sufficient knowledge. Ignorance of the law commonly is no excuse for conduct or failure to act. The employee is not required to act without inquiry as to the' fact of insurance by the employer. He has only to ask for information. That is nothing more than is required in most of the affairs of life in order that one may act intelligently. Knowledge as to interstate commerce rates may be inaccessible without very considerable inquiry, and yet shippers or passengers may be bound by them .although ignorant of their terms [citing numerous cases]. * * * The possibility that the employee in a given instance may not know all his rights does not affect the constitutional aspects of the law. Many crimes even are made to depend solely upon the doing of an act with the utmost moral innocence and in ignorance of any forbidding aspect of the act. Commonwealth v. Mixer, 207 Mass. 141 [93 N. E. 249, 31 L. R. A. (N. S.) 467, 20 Am. & Eng. Ann. Cas. 1152].”

No constitutional provision is pointed out which, prohibits the legislature, in framing this law to best avoid uncertainty and contention tending to litigation, from adopting a rule of conclusive presumption upon the question of notice so long as the employee was left in the first instance free to forestall, overcome, or prevent such presumption by his own act if he so desired. This being true, the constitutional objections raised, which are necessarily founded upon the idea of coercion, disappear because the employee has had a free choice, and, by having ’failed to give notice, must be held to have elected his remedy under the workmen’s compensation, law. Such legal presumptions are not unconstitutional nor uncommon. A familiar illustration is the conclusive presumption that a party entitled to jury trial in a civil action has waived his right and elected to go to trial without a jury unless he took some affirmative action and made demand before a certain time or point of progress in the case arrived.

The contention that the Industrial Accident Board and arbitration committees provided for in said act are unconstitutional bodies, because the powers conferred and duties imposed upon them combine executive, administrative, and judicial functions, while the Constitution vests the judicial power in the courts, forbidding any one of the three departments of government exercising the powers belonging to another, is not tenable. This board was created purely as an administrative agency to carry the provisions of the act into effect. The act being elective, it is operative only as to those who choose to come within its provisions, and in that particular it is a board of arbitration by agreement, but, aside from that consideration, it is but an administrative body, vested, it is true, with various and important duties and powers, some of them quasi judicial in their nature, but without that final authority to decide and render enforceable judgment, which constitutes the judicial power. Its determinations and awards are not enforceable by execution or other process until a binding judgment is entered thereon in a regularly constituted court. Section 13, pt. 3, of said act.

“The judicial power, even when used in its widest and least accurate sense, involves the power to ‘hear and determine’ the matters to be disposed of; and this can only be done by some order or judgment which needs no additional sanction to entitle it to be enforced. No action which is merely preparatory to an order or judgment to be rendered by some different body can be properly termed judicial.” Underwood v. McDuffee, 15 Mich. 361 (93 Am. Dec. 194).

An examination of the many duties and responsibilities imposed upon the board by the act of a purely administrative nature makes plain that those which may be termed quasi judicial are but incidental, and only exercised when appeal is taken from an arbitration.

In Reck v. Whittlesberger, 181 Mich. 463 (148 N. W. 247), though constitutional questions were not there involved, this court, in considering the powers and duties of the Industrial Accident Board, held that, as a creature of statute, it is primarily an administrative body created by the act to carry its provisions into effect, having for the efficient administration of the law amongst its many duties and responsibilities quasi judicial powers in certain particulars. The constitutional objection that judicial power is lodged in an administrative board under workmen’s compensation acts has been carefully considered and squarely decided against the contention in State, ex rel. Yaple, v. Creamer, 85 Ohio St. 349 (97 N. E. 602, 39 L. R. A. [N. S.] 694); Cunningham v. Improvement Co., 44 Mont. 180 (119 Pac. 554); Borgnis v. Falk Co., 147 Wis. 327 (133 N. W. 209, 37 L. R. A. [N. S.] 489); Hawkins v. Bleakley (D. C.), 220 Fed. 378. But the development of governmental activities in many fields, demanding administrative and ministerial agencies for which commissions and boards have been provided with extensive and incidentally quasi judicial powers, has brought the question before this court in numerous cases where the exercise of such powers has been sustained, and we think the rulings in those cases are controlling of this question without further inquiry. Hartford, etc., Ins. Co. v. Raymond, 70 Mich. 485 (38 N. W. 474); Feek v. Township Board, 82 Mich. 393 (47 N. W. 37, 10 L. R. A. 69); Bissell v. Heath, 98 Mich. 472 (57 N. W. 585); Attorney General v. Jochim, 99 Mich. 358 (58 N. W. 611, 23 L. R. A. 699, 41 Am. St. Rep. 606); State Tax Com’rs v. Board of Assessors, 124 Mich. 491 (83 N. W. 209); Northrup v. Maneka, 126 Mich. 550 (85 N. W. 1128); Kennedy v. State Board of Registration, 145 Mich. 241 (108 N. W. 730, 9 Am. & Eng. Ann. Cas. 125); Zimmer v. Board of Supervisors, 159 Mich. 213 (123 N. W. 899); Michigan Central R. Co. v. Railroad Com’n, 160 Mich. 355 (125 N. W. 549); and People v. Brazee, 183 Mich. 259 (149 N. W. 1053), which confirms certain quasi judicial powers in the commissioner of labor, and supports its ruling by a review of authorities.

We conclude that the Industrial Accident Board is a ministerial and administrative body with incidental quasi judicial powers, exercised by consent of those electing to be governed by the act, not vested with powers or duties in violation of constitutional limitations.

We are unable to agree with plaintiff’s contention that the title of this act violates the requirements of article 5, § 21, of our Constitution, in that it embraces more than one subject, and includes provisions not expressed in the title. It has been said this section is not to be given a narrow and strained construction (National Loan, etc., Co. v. City of Detroit, 136 Mich. 451 [99 N. W. 380]), and it is familiar doctrine that this constitutional provision does not require in the title details, incidents, or means of carrying out the object of the legislation, nor an index of the body of the act, but it is enough if it, fairly indicates to the inquiring mind the general scope, intent, and purpose of the law. An examination of the title before us and comparison with titles to like statutes in other States discloses that it has been prepared with careful consideration and is unusually comprehensive and broad in its scope. The purpose of the act is broadly declared, and the object sought to be accomplished clearly stated in general terms, from which it must be understood as meaning that the act will contain many germane details and provisions necessary and suitable for the object not set out at length in the title. In Connecticut Mutual Life Ins. Co. v. State Treasurer, 31 Mich. 6, where the constitutionality of the law was attacked by which the State insurance bureau came into existence, with its many attending powers and activities, under the brief title, “An act to establish an insurance bureau” (Act No. 108, Laws of 1871), this court declared the rule, which has been since followed in passing upon the titles of acts of this class, in part as follows:

“ * * * Under such title, and in keeping with, and in furtherance of, the single object expressed, it was competent to go further than to enact mere organic provisions. It was certainly admissible to include any just and pertinent regulations respecting the course of action to be observed by the bureau as a State agency towards those engaged in the business of insurance; and it was equally admissible to include any just and appropriate provisions for prescribing the duty due to the State in the matter of taxation from insurance companies. The fundamental principle of the law was the marking out the reciprocal rights and duties of the State and those carrying on insurance, and to provide the machinery for administration, in so far as the State by a political agency might properly supervise.”

The particulars pointed out in which it is claimed the act contains provisions not referred to or comprehended in the title are that it repeals an existing statute relative to contracts with attorneys for services, creates a right of action against a third party by the employer of the injured, subrogating the employer to the rights of the employee, and requires the injured employee to seek compensation from an insurance company, instead of his employer. The last objection, we think, is disposed of in Barnard v. McLeod, 114 Mich. 73 (72 N. W. 24), where section 16 of the mechanic’s lien law (Pub. Acts 1891, p. 230), providing for subrogation under certain circumstances, was sustained, although the title of the act did not in terms give notice of such a provision, and the constitutionality of the act was assailed on the ground of defective title, and the court said:

“We think there is no merit in the constitutional question raised.”

If there be any repeal of the statute with reference to attorney’s contracts, it is by implication only. The portion of the act questioned provides:

“The fees and the payment thereof of all attorneys and physicians for services under- this act shall be subject to the approval of the Industrial Accident Board.”

This is but a detail of method for ascertaining and Insuring in the first instance full payment to the injured, is germane to the act, and its repealing effect by implication is a matter of construction. An examination of sections 6 and 14, pt. 3, of the act clearly indicates that the employee is not relegated to seek compensation for his injuries to an insurance company, but liability under the act is clearly upon the employer, and the provisions for insurance are in security and aid of payment by him.

Details in many respects similar to these, and numerous others not specifically enumerated in the titles, are to be found in the Wisconsin, Massachusetts, Minnesota, Ohio, Illinois, New Jersey, California, and Montana employers’ compensation acts, the general constitutionality of which has been sustained; and, while it does not appear that thése exact objections were raised and passed upon, those acts and the opinions sustaining them are significant and persuasive of the natural and necessary scope of this class of legislation in order to accomplish the obj ect sought, as declared in a general title. We think the objections urged to the title of this act are not tenable under the decisions of this and other courts.

Stress is laid upon that feature of the law which exempts household servants, farm laborers, and casual employees from its provisions, as being class legislation depriving them of equal protection under the law, and in that connection appropriating public money for the benefit of a certain class. In support of this contention counsel cite Michigan Corn, etc., Ass’n v. Auditor General, 150 Mich. 69 (113 N. W. 582), in which it is held that appropriating funds for the use of a voluntary, unincorporated society, the membership of which is limited to residents of the State actively interested in the improvement of corn, is an attempt to devote public funds to a private purpose in violation of the Constitution. On the same principle it was held a bounty on the manufacture of beet sugar could not be given by the State (Michigan Sugar Co. v. Auditor General, 124 Mich. 674, 677 [83 N. W. 625, 56 L. R. A. 329, 83 Am. St. Rep. 354]), and townships could not raise money by taxation to aid a private corporation to build a railroad (People, ex rel. Detroit, etc., R. Co. v. Township Board of Salem, 20 Mich. 452 [4 Am. Rep. 400]). The fatal objection to the laws under consideration in those cases was that they attempted to authorize a public tax for a mere private purpose, and whatever may have been said in those cases as to discrimination between different classes of occupations was directed to that proposition. Under this law there is no attempt to appropriate public money for private purposes. The expenditure of public funds to defray the expense of administering this law rests upon considerations of public policy, just as the State provides for protection of those engaged in hazardous employment, and supports a labor department for the general good, but primarily concerned with the condition of industrial workers. There can be no question that the legislature may determine that an act of this nature concerning a portion of the body politic is necessary or conducive to promotion of the general welfare of the people of the State and make constitutional appropriation of public funds raised by taxation to carry the law into effect. The law is unquestionable that it is within the power of the legislature to classify both employers and employees, if the classification is not fanciful or arbitrary and for reasons of public policy, is based upon substantial distinctions, is germane to the object sought to be accomplished by the act, not limited to existing conditions only, and applies impartially and equally to each member of the class. This power of the legislature is fully recognized in Withey v. Bloem, 163 Mich. 419 (128 N. W. 913, 35 L. R. A. [N. S.] 628); and Sonsmith v. Railroad Co., 173 Mich. 57, 73 (138 N. W. 347). Classifications of this nature, some of them identical with that under consideration, have been sustained in various States where workmen’s compensation acts and other laws affecting industrial workers were under consideration. Missouri, etc., R. Co. v. Mackey, 127 U. S. 205 (8 Sup. Ct. 1161); Deibeikis v. Link-Belt Co., 261 Ill. 454 (104 N. E. 211, Am. & Eng. Ann. Cas. 1915A, 241); Cunningham v. Improvement Co., supra; Borgnis v. Falk Co., supra; Dirken v. Paper Co., 110 Me. 374 (86 Atl. 320, Am. & Eng. Ann. Cas. 1914D, 396); Opinion of Justices, 209 Mass. 607 (96 N. E. 308); Jeffrey Manfg. Co. v. Blagg, 235 U. S. 571 (35 Sup. Ct. 167). In Mathison v. Railway Co., 126 Minn. 286 (148 N. W. 71), in which, the constitutionality of the workmen’s compensation act of that State is sustained, it is said:

“Other courts have held, and we think for sufficient reasons, that the exclusion of domestic servants, farm laborers, and persons whose employment is casual only, from the operation of laws providing compensation for injured workmen is within the proper discretion of the legislature. * * * We also think that the legislature is well within its prerogative when it places in one class employers who become subject to the provisions of part 2 of the act, and in another class employers who do not become subject to such provisions; also when it places in one class employees who become subject to such provisions, and in another class employees who do not become subject thereto. Employers who become subject to part 2 thereby tender to their employees, as a consideration for exemption from common-law liabilities, rights and privileges which did not previously exist, and offer to assume the burden of duties and obligations which were not previously imposed upon them.”

We think the latter case covers adversely plaintiff’s contention that class legislation results from dividing employees into three classes with varying rights and liabilities. After discussion of the suggested classes the court said:

“These propositions become binding contracts in respect to all who accept them, and remain as continuing offers to those who have not accepted them.”

The claim that the act deprives a parent of right of action for injury to his minor child is not tenable, even if open to plaintiff in this case. He is not a minor. His parents are not complaining. The act provides for the damages of the minor. It does not indicate that the parent’s action for loss of services is affected. But whether this act “may or may not deprive parties to supposititious cases of constitutional rights has no bearing upon the present case, if it appears that the parties before the' court are not deprived of constitutional rights by the proceeding under review.” Sexton v. Telegraph Co., 84 N. J. Law, 85 (86 Atl. 451).

It is urged that the clause of the act making attorneys’ and physicians’ fees in accident claims adjusted under its provisions subject to the approval of the Industrial Accident Board, and providing that no payment under this act shall be assignable or subject to attachment or garnishment, or be held in any way for any debts, is unconstitutional as limiting the right of contract, preventing the injured party from employing, an attorney of his choosing. In support of this contention, section 12, art. 2, of the Constitution is cited, which is as follows:

“Any suitor in any court in this State shall have the right to prosecute or defend his suit, either in his own proper person or by an attorney or agent of his choice.”

The Industrial Accident Board is not, in contemplation of law, a court, and a claimant before it for damages resulting from personal injuries is not strictly a “suitor in any court,” but the right of a claimant to select and employ an attorney or agent to represent him in the matter is recognized by the provision referred to. These restrictions in the act, as applied to those who submit to its provisions by election, certainly cannot be held unconstitutional. They were deemed by the legislature proper and necessary to safeguard the interests of the class for whose benefit largely this act to “promote the welfare of the people of the State” was passed; they are germane to the purpose of the act, and in the light of conditions previously existing in litigation over personal injuries to workmen, of which courts of last resort have taken judicial notice in construing workmen’s compensation acts, are beneficial and appropriate, if not essential, to an efficient administration of the law.

We do not deem it necessary to review in detail the underlying reasons which are recognized as fully justifying and sustaining these special provisions, but those interested in that particular will find them graphically elaborated by Judge McPherson in Hawkins v. Bleakley, supra, and discussed in detail in Cunningham v. Improvement Co., supra, and also pertinent reflections by Justice Sterling in Ayers v. Buckeridge [1902], 48 K. B. 57.

The policy, importance, and propriety of this legislation, in its general plan and purpose, are not open to question, and we do not find it subject to the constitutional objections urged in this record. No attack is made here upon that portion of the act relating to municipalities, and therefore no question which might arise in that connection is considered or decided.

The judgment is affirmed.

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


author: STONE J.

text:
    LINDERMAN MACHINE CO. v. SHAW-WALKER CO.
    1. Sales — Breach of Warranty — Parol Warranty — Written Contract.
    Where the agent of the seller of a machine known as a dovetail glue jointer represented that it would save defendant over $3,000 a year, and that certain lumber or material could be put in the machine without other process, and that the rip saw of the defendant buyer could be used in connection with the machine, evidence of the oral representations, claimed to have been false and fraudulent, was not admissible to change a written contract containing guaranties and other details of the agreement of the parties; the trial court properly 'directed a verdict for the plaintiff as against such objections.

    2. Same — Contracts—Election of Remedy — Rescission of Contract — Estoppel.
    Where defendant kept the machine which it bought and used it during a considerable period of time, down to the trial of the case, it was estopped from setting up a rescission of the contract, as a defense to an action for the price.
    3. Same — Evidence—Pleading.
    Plaintiff was not required to plead the conduct of the defendant in retaining and in making use of the machine; the evidence was admissible in rebuttal of or on cross-examination of defendant’s witnesses and was proper rebuttal to the defense that the buyer had rescinded the transaction.
    Error to Muskegon; Sullivan, J.
    Submitted April 18, 1915.
    (Docket No. 74.)
    Decided June 14, 1915.
    Assumpsit by the Linderman Machine Company against the Shaw-Walker Company for the value of certain machinery. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Clink & Farmer, for appellant.

      Cross, Vanderwerp, Foote & Ross, for appellee.

       As to right to show parol warranty in connection with contract for sale of personalty, see note in 19 L. R. A. (N. S.) 1183.

   STONE J.

Action of assumpsit to recover the price and value of a machine known as a standard five-foot Linderman automatic dovetail glue jointer, sold by the plaintiff to the defendant in the summer of 1912. The plaintiff is a corporation located in the city of Muskegon, whose business consisted wholly, or in part, of the manufacture of wood-working machinery. The defendant was engaged in the manufacture of various classes of woodwork, such as filing cabinets, bookcases, desks, etc. The declaration was upon the common counts in assumpsit; the plea was the general issue, with a notice: Thai upon the trial of the case the defendant would insist in its defense that, for the purpose of making the sale of the jointer to the said defendant, for the recovéry of the value of which this suit was brought, and with intent to induce said defendant to purchase said machine, the said plaintiff falsely, fraudulently, and deceitfully stated and represented to the said defendant:

(1) That there would be a saving to defendant of over $3,000 a year by the installation of the said machine; (2) that five-eighths inch beech, and other lumber could be taken from the crosscut saw and placed in the machine directly, without edging or other process; (3) that the ripsaw then in use by the defendant could be used with said machine; which statements and representations were wholly false and deceitful, and were known by the plaintiff so to be at the time of the making thereof, and were made for the purpose of deceiving and defrauding said defendant by falsely and fraudulently inducing it to purchase said Linderman machine, which said defendant, believing and relying upon, did purchase.

It concluded as follows:

“That the said defendant will insist, upon the trial of said cause, that by reason of the facts set forth said defendant is absolutely released from any liability for the value of the said standard five-foot Linderman automatic dovetail glue jointer, and that the contract for the sale thereof was and is void.”

The contract was offered in evidence by the plaintiff, and, among other things, contained the following clauses:

“Guarantee. We guarantee the workmanship and material on this machine to be of suitable quality, and will agree to furnish without charge new parts, to replace any which shall prove defective in material or workmanship within one year of putting this machine in operation.”
“Price and Terms. The price at which we will furnish this machine is $3,750 f. o. b. cars Muskegon, Michigan, payable in sixty day installments covering a period of twelve or fifteen months.”

Upon introduction of the contract in evidence, and evidence showing the installation of the machine and the nonpayment of the purchase price, the plaintiff rested its case. The defendant, not claiming any breach of warranty, placed its defense upon the ground that the plaintiff made false and fraudulent representations, as set forth in the notice attached to the plea. The evidence of the defendant tended to show that, from time to time, complaints were made by the defendant to the plaintiff of the work done by the machine, and that it did not accomplish the savings to the defendant which the plaintiff represented it would, and that the plaintiff, until some time in the spring of 1913, assisted in operating the machine to demonstrate that it would accomplish all that was recommended, a'nd that these trials of the machine continued until shortly before suit was brought. It appears undisputed that certain correspondence took place between the parties, and that on July 2, 1913, the defendant stated in its letter of complaint to the plaintiff, among other things, the following:

“We must say that we are very much disappointed with the trial of this machine. The work that we have just completed does not indicate any advantage to us whatsoever. * * * We are closing our shop for ten days now, and this is a good opportunity to have the machine taken down and loaded, and we would ask that you kindly make arrangements promptly to that end.”

In reply to this, by a letter which seems to be undated, the plaintiff said:

“We have spent considerable time and money in our efforts to have your mechanical department take advantage of the savings offered by the Linderman machine, and our efforts seem to have been rewarded.”

Under date of July 22, 1913, defendant wrote plaintiff again, stating, among other things, the following:

“Regardless of any discussion as to the merits or faults of the Linderman machine, the fact remains that it is not satisfactory to us. It has fallen far short of our expectations in every way. It was the idea in trying this machine that it would save a lot of money, and that we were to be the judge of its efficiency.
“We feel that this experiment has been costly to us, and we think that we have acted entirely in good faith. We again ask you to make arrangements at your earliest convenience to remove your machine.”

There was no reply to this letter. Again, on July 25, 1913, the defendant wrote plaintiff another letter, in which it said:

“We are anxious to have you remove your Linderman dovetail jointer immediately.
“This machine takes up room necessary for equipping to run our joints in the old way. We cannot get squared around again until the machine is removed.
“Will you please give this matter your immediate attention ?”

This suit was begun July 28, 1913, and was tried at the circuit early in February, 1914. It appeared undisputed upon the trial of the case that the defendant continued to use this machine down to the time of the trial; in fact it appeared that it was. then using the machine.

Numerous objections were made on the part of the plaintiff to the introduction of evidence in support of the notice under the plea, upon the ground that the numerous statements relied upon by the defendant did not amount to false and fraudulent representations, but that they were merely “sellers’ talk,” as to what the machine would accomplish under certain conditions; even if the machine failed to accomplish this saving, they were not false representations as to actual existing conditions. This evidence was at first received by the trial court, but later a verdict was directed for the plaintiff for the whole amount of its claim, and judgment was entered thereon.

There seems to have been a good deal of colloquy between court and counsel during the trial of the case. The court, after calling attention to the notice, asked defendant’s counsel whether he meant that there was a sale or not, to which defendant’s counsel answered as follows:

“My idea is this: If we recover, that the verdict should be no cause of action, and that that would leave it right where it was before; that is, the plaintiff would have to take this machine and go home with it, and that is all there would be to it.
“The Court: The court got the idea from the whole pleadings here that both parties understood that there was a sale, and that there were some representations made in relation to that for which the defendant should get some reduction, or something of that kind, and give defendant the machine. Now, that isn’t your idea at all?
“Defendant’s Counsel: I don’t know whether I get your idea right or not — that if the plaintiff prevails, that it gives the defendant the machine ?
“The Court: Is that your idea?
“Defendant’s Counsel: Yes; most assuredly. Then the contract would be validated; but if the. defendant prevails the plaintiff owns the machine, and that is all there is to it. In other words, if the defendant prevails, it does so upon the theory that this contract was never a valid, binding contract, because it was obtained by misrepresentation and fraud * * * that is my position exactly.
“Plaintiff’s Counsel: If your Honor please, our contention in that regard is this: That by no possibility could the defendant claim and recoup any damages here. They haven’t claimed any. They have alleged that there was a sale, and that that sale was brought about by fraud, and the fraud vitiates everything, and they prove the fraud, and that nullified the contract, and therefore the machine is ours, and they want a verdict of no cause of action. That is the theory on which they have drawn their pleadings. Now, w.^fjhall claim, if your Honor please, that if the defendant desires to attack the validity of. this sale on the ground of fraudulent representations, at least after this suit was commenced if they didn’t wish to retain the machine and pay for it, they should have moved it out or set it aside and not used it. Why, if we just wait long enough before bringing our suit they would wear out the machine l We could sue for the purchase price and get nothing, and they would have all the benefit of the machine. I maintain that by their use of the machine and their constant operation from the time of the commencement of the suit down to the present time, they have absolutely estopped themselves from, attacking the validity of this contract, as a proposition of law. There is only one verdict, and that is a verdict for the plaintiff.
“Defendant’s Counsel: Barring the last proposition that counsel made, I don’t think that we are apart on our theory of what the result will be in case of a finding of the facts one way or the other. There doesn’t seem to be much question about that. * * *
“The Court: If a man claims that there is a sale —no sale — that there was fraud and misrepresentations. and things of that kind practiced upon him by which he took the machine on trial and left it in his place of business, and he became satisfied that there were false, fraudulent representations, and that the sale didn’t- go, can he go on and continue to use that machine just as if it was his own, or must he immediately upon finding out that the machine don’t work turn it back?
“Defendant’s Counsel: Well, now, I would rather take up that and dispose of it. It is a legal proposition by itself, and my position is this: That the situation was such up to the time of the bringing of the suit— and after the bringing of the suit we can’t inquire at all, but the whole die is cast the day the suit is brought. Whatever the condition, then is, is what we have got to deal with now, unless there is some plea of pids darrein continuance, or something of that sort. Now, my contention is that during all this time — and it is not so great a time as it seems. You will understand this order was given nearly the last of July, 1912, and the machine was put in there possibly six weeks later, which would carry it into September, and then this difficulty ran all winter until the spring of 1913. That wasn’t a very long period of time and when Mr. Walker got home he found that there was difficulty about it, and they have been trying to solve that ever since, as the correspondence shows, and these defendants have been trying to let the plaintiff make good with his machine all that time, and finally he. turns around and sues. Now, up to that date we have to do with it. Just one further proposition in that connection and that is this: It is absolutely unreasonable to suggest that any time that we thought that •this machine wasn’t coming up to the recommendations that were made for it we should throw it out, because the expense of throwing that machine out, after we have put out one other machine and installed this in its place, would be great, and then say, when we don’t know what this jury will say, whether we have got to pay for it or not, throw it outdoors and then have the jury say, maybe, we have got to pay for it, and carry it back again and install it again.
“The Court: You can’t blow hot and cold. You have got to blow one way or the other.
“Defendant’s Counsel: We are not trying to blow hot and cold.
“The Court: You have got to either blow that there was a sale or there wasn’t. It is up to you to say what this jury should say before they have anything to say about it.-
“Defendant’s Counsel: I understand it is up to me to elect first whether there was a sale or not. We had a right to use that machine up to the time they brought suit, because it was in negotiation and on trial, and they were trying to make good, doing this and that, and everything, making tests, and the time wasn’t very long either, as I said before, but we are willing to take care of that when we get to it.”

At the close of this colloquy, the president and treasurer of the defendant company was further cross-examined, and the following occurred:

“Q. Mr. Walker, I want to ask you one question again. Having reached the conclusion that this sale was brought about through fraud on the part of Mr. Linderman, why didn’t you send that machine back, load it on a car, and have it switched down there?
“A. Because we knew we had gotten our foot in it on signing that order without any conditions, without the real conditions that existed, and we thought if we sent it down there, we might have to take it back. That is to be honest.
“Q. You didn’t know just where you did stand on this contract?
“A. We didn’t know where we did stand. That is the reason why we are up here to a jury.”

On the redirect examination of Mr. Walker by defendant’s counsel the following occurred:

“Q. Was there some other reasons of trying to make it work or giving time to do the work it was represented it would do?
“A. Well, Mr. Linderman’s statement was that, ‘If this machine don’t do exactly as I represented it, I will take it out,’ not we send it back.
“Q. Was there any effort on his part to correct the difficulties from time to time, and whether that has—
“A. He has been doing that ever since we purchased the machine, trying to correct the difficulties and trying to put on attachments that would make it work.”

There is no claim on the part of the defendant that after the writing of the letter of July 25th by defendant, the plaintiff attempted to do anything more by way of experimenting with the machine. The court, as we have already said, directed a verdict for the plaintiff for the full amount of the contract price, and it would seem that by its charge it relied upon the case of Foster v. Rowley, 110 Mich. 63 (67 N. W. 1077).

The defendant has brought the case here upon writ of error, and the errors,, assigned are that the court erred in directing a verdict in favor of the plaintiff and in refusing to submit said cause to the jury. Defendant’s position here upon the argument was substantially as above indicated in the court below, relying upon Phelps v. Whitaker, 37 Mich. 72.

Passing the claim of appellee, that as no exception was taken to the ruling of the court in response to plaintiff’s motion to direct a verdict in its behalf, no question is here for review, but treating error as having been properly assigned upon the charge of the court, under our statute (section 10247, 3 Comp. Laws; 5 How. Stat. [2d Ed.] § 12960), we think that upon the merits of the case the court did not err in directing a verdict and judgment for the plaintiff, and that the case of Foster v. Rowley, supra, and the subsequent cases of Hakes v. Thayer, 165 Mich. 476 (131 N. W. 174), and Wittemann Co. v. Malting & Brewing Co., 183 Mich. 227 (150 N. W. 109), rule the instant case.

The Wittemann Co. Case, like this, was planted in the pleadings, and was tried upon the theory that the contract in question was obtained by fraud, and it was under that theory that the case was submitted. Justice KUHN, speaking for the court, said:

“It is urged that what the defendant is attempting to do, in effect, is to add to the contract entered into by the parties warranties not contained therein, and it is insisted that the rule that there cannot be read into a written contract an express oral warranty should not be evaded by calling facts which constitute an express oral warranty by another name, ‘fraud.’ In support of appellant’s claim the case of Detroit Shipbuilding Co. v. Comstock, 144 Mich. 516 [108 N. W. 286], is relied upon. We are unable to distinguish the instant case from that case, in principle, as it is clear that the representations here relied upon to show fraud * * * are warranties. As was said in the Comstock Case with reference to such representations: ‘At most, this amounted to evidence of a parol warranty.’ Under this authority we see no escape from the conclusion that the trial court should have ruled -out all the evidence with relation to such representations.”

The case of Williams Transportation Line v. Transportation Co., 129 Mich. 209 (88 N. W. 473, 56 L. R. A. 939), is an instructive case upon the subject of the right to rescind an executed contract for a breach of warranty. In the instant case the claimed representation would amount to a verbal warranty, and not a false representation. As a verbal warranty it was inadmissible.

As this court said in Hakes v. Thayer, supra, this defendant could not “play fast and loose” in this matter. Having kept the machine and continued to use it down to the time of trial, it was estopped from claiming rescission of the contract as a defense.

It was competent for the plaintiff to show the conduct of the defendant with reference to the use of the machine, even down to the day of trial. No plea of puis darrein continuance was required. In fact, none would have been proper. Of course the defendant would interpose no such plea, and we know of no rule of pleading that would require the plaintiff to give notice that it would introduce evidence in rebuttal, or on cross-examination of the defendant’s witnesses to show that the defendant’s conduct was such as to preclude the defense here sought. In fact it was along the line of plaintiff’s claim in its declaration of goods sold and delivered, and to rebut defendant’s defense of rescission.

We find no reversible error in the record, and the judgment of the court below is affirmed.

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


author: McAlvay, J.

text:
    ROOF v. BLAKE.
    Garnishment — Joint Parties — Severaí Debt — Subject of Garnishment.
    An. indebtedness due to one of two joint defendants in an action of assumpsit was subject to garnishment in favor of the plaintiff in proper proceedings, under section 10600, 3 Comp. Laws (5 How. Stat. [2d Ed.] §13436).
    Error to Kalamazoo; Stewart, J.
    Submitted April 16, 1915.
    (Docket No. 132.)
    Decided June 14, 1915.
    Garnishment proceedings by Barney Roof against Horace A. Steuard and others as garnishees of William I. Blake. Marietta Blake was interpleaded as party claimant of the fund, and from a verdict directed in her favor plaintiff brings error.
    Reversed.

      Boudeman, Adams & Weston, for appellant.

      A. S. Frost (W. J. Barnard, of counsel), for appellee.
   McAlvay, J.

This was an action in assumpsit brought by plaintiff against the principal defendants, who were copartners in business as Blake Bros., in which a judgment was recovered against them and in favor of plaintiff for the sum' of $452.16. At the time of the commencement of this suit, plaintiff sued out a writ of garnishment against Horace A Steuard, as garnishee defendant, to secure funds claimed to be in his hands belonging to William I. Blake, one of the principal defendants. Mr. Steuard made a disclosure in writing that at the time of the service of said writ he was indebted to said defendant William I. Blake in the sum of $281.66, and further that this money was claimed by one Marietta Blake, the wife of William I. Blake. Proper proceedings were taken whereby said Marietta Blake was interpleaded as one of the defendants. She caused her appearance to be entered, filed her plea and notice, and the case was brought on for trial. After the opening statement of plaintiff’s counsel, upon motion of counsel for defendant, the court directed a verdict for the defendant Marietta Blake. This motion was based upon the opening statement of plaintiff’s counsel, coupled with the admission that the judgment in the principal case was against Blake Bros, jointly, and that the moneys sought to be recovered by plaintiff in the garnishment proceedings were the property of William I. Blake, one of the principal defendants. Plaintiff excepted to the action of the court in directing a verdict in favor of defendant and has removed the case to this court by writ of error for review upon errors assigned to such exception.

But one question is involved in the case, namely: Can a plaintiff garnish moneys in the hands of a third person belonging to one of two joint defendants to satisfy his claim against both defendants?

It is the contention of the appellee, which was accepted by the trial court, that the above question must be answered in the negative.

The whole question is controlled by the statute. This statute regulating proceedings against garnishees in courts of record was amended by Act No. 128, Pub. Acts 1885, being section 10600, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13436), and reads as follows:

“Section 1. The people of the State of Michigan enact, that in all personal actions arising upon contracts, express or implied, brought in the several circuit courts or municipal courts of civil jurisdiction, whether commenced by declaration, writs of capias, summons or attachment, and in all other cases where there remains any sum unpaid upon any judgment or decree rendered in any of the several courts hereinbefore mentioned or upon any transcript of a judgment filed in said courts, if the plaintiff, his agent or attorney, shall file with the clerk of said circuit court at the time of, or after the commencement of suit, or at any time after rendition of judgment or decree or the filing of a transcript of judgment, an affidavit stating that he has good reason to believe, * * * that any person (naming him) [has] his property, money, goods, chattels, credits or effects, in his hands or under his custody or control, belonging to the defendant or any or either of the defendants, or that such person is indebted to the defendants, or any or either of the defendants, whether such indebtedness is due or not, * * * a writ of garnishment shall be issued, sealed and tested in the same manner as writs of summons,” etc.

The case of Meigs v. Weller, 90 Mich. 629 (51 N. W. 681), decided March 18, 1892, which was appealed to this court by the garnishee defendant, is the only case in which this statute as amended has been construed. Two opinions were filed in the case; but, as far as the question here involved is concerned, they were in accord. In the dissenting opinion Mr. Justice Grant, at page 638 of 90 Mich, (at page 683 of 51 N. W.), said:

“The principal judgment in this case was against two partners, and it is insisted on behalf of the defendant that the garnishee proceedings will not lie against a debtor of one of such joint principal defendants. Such was the law previous to the act of 1885. Ford v. Dry Dock Co., 50 Mich. 358; Farwell v. Chambers, 62 Mich. 316. But the act of 1885, though it amended only the first section of the garnishee law, expressly confers the right to this proceeding. The legislature clearly understood that the subsequent provisions of the statute were ample in. providing the method of procedure. We see no difficulty in holding them applicable.”

In the majority opinion written by Chief Justice Morse, but a brief reference is made to the question, at page 635 of 90 Mich, (at page 683 of 51 N. W.). We quote as follows (the words in parentheses are ours):

“At the time this suit was commenced it is evident that Weller (garnishee defendant) had property and effects in his hands and under his control that belonged to Mernan (one of the principal defendants). I can see no reason why the writ of garnishment would not lie.”

An examination of the original record and briefs in Meigs v. Weller, supra, shows that the identical question involved in the instant case was presented and discussed at length in the briefs of both parties before this court. It determines that a plaintiff may garnishee moneys, etc., in the hands of a third person belonging to one of two joint defendants to satisfy his claim against such defendants.

The cases cited and relied upon by appellant are the cases which, in Meigs v. Weller, supra, Mr. Justice Grant in his opinion says were authority upon the question previous to the passage of the act of 1885.

Another case relied upon by appellant, Nachtegall v. Reilley, 165 Mich. 347 (130 N. W. 699), is readily distinguishable from the instant case. Naehtegall, as plaintiff, brought suit against James E. Reilley, principal defendant, and Gaius W. Perkins, garnishee defendant. The garnishee defendant held the fund under a certain contract. In that case Mr. Justice Brooke, speaking for the court, said:

“We are unable to say from an examination of the contract that James E. Reilley is the sole owner of the $1,000, but it is equally plain that the contract does not show affirmatively that either E. H. Reilley or E. R. Preston own the fund. Both claim to own it, and they have been interpleaded in order that their rights to the fund, if they have any, may be determined.”

And further the court said:

“If, at the time of the service of the writ of garnishment by the plaintiff, this fund was in fact the sole property of James E. Reilley, it was clearly subject to the process. If, upon the other hand, either E. H. Reilley or E. R. Preston was the owner thereof, or of a joint interest therein, at that time, the garnishment proceedings must fail.”

From the above excerpts it is clear that the question presented in the instant case was not involved.

The trial court was in error in directing a verdict against the plaintiff.

The judgment is therefore reversed and set aside, and a new trial is ordered.

Brooke, G. J., and Stone, Kuhn, Bird, Moore, and Steere, JJ., concurred. Ostrander, J., did not sit.


text:
    SYMONS BROS. & CO. v. BRINK.
    1. Fraudulent Conveyances — Chattel Mortgages — Sales in Bulk — Foreclosure—Voluntary Sale.
    Regular foreclosure of a chattel mortgage, that was duly executed and properly recorded, though resulting in a sale of the property to realize the indebtedness secured thereby, is not such a voluntary sale as is contemplated by the provisions of Act No. 223, Pub. Acts 1905, known as the bulk sales law.

    2. Same — Equity—Injunction—Receivers.
    On demurrer to complainant’s bill which charged that defendant debtor transferred his stock of groceries and fixtures to his mortgagee otherwise than in the regular course of trade, without complying with the bulk sales act, also that the transfer was a fraud upon creditors of the mortgagor, the facts alleged, were sufficient to authorize the interference of a court of equity under such bulk sales law, since an outright sale or transfer of the property from mortgagor to mortgagee might bring the sale within the terms of the statute under the averments of the bill of complaint, which was not demurrable upon the ground of want of equity or for the reason that it failed to aver the value of the property transferred.
    Appeal from Crawford; Sharpe, J.
    Submitted April 21, 1915.
    (Docket No. 105.)
    Decided June 14, 1915.
    Bill by Symons Brothers & Company and others against Rolla W. Brink and another for an injunction, a receiver and other equitable remedies. From a decree sustaining defendants’ demurrer to the bill of complaint, complainants appeal.
    Reversed.

      L. G. Beckwith and Gilbert W. Hand (Oscar W. Baker, of counsel), for complainants.

      George L. Alexander, for defendant Hanson.

       As to statutory requirements on sale of stock of goods in bulk, see note in 2 L. R. A. (N. S.) 331, 25 L. R. A. (N. S.) 758, and on the question of whether a chattel mortgage is within meaning of sales in bulk law, see note in 12 L. R. A. (N. S.) 758.

   Steere, J.

This is an appeal from a decree of the circuit court of Crawford county, in chancery, sustaining a demurrer to, and dismissing complainants’ bill filed to obtain a temporary injunction, restraining defendants from disposing of or incumbering a certain stock of groceries and fixtures, for the appointment of a receiver to take charge of said property, under Act No. 223, Pub. Acts 1905 (2 How. Stat. [2d Ed.] § 2612), and for an accounting.

Briefly stated, it appears from the allegations, in said bill that complainants are mercantile organizations. located in business at Bay City and Saginaw. Defendants reside at Grayling, Mich., where defendant Brink was engaged in the retail grocery business. On November 22, 1910, Brink gave a mortgage to defendant Hanson on the former’s, stock of goods and fixtures, in the sum of $2,134.29, said mortgage being put on record in the office of the city clerk at Grayling on March 23, 1911, an affidavit renewing the same being filed on October 16, 1912, stating that there yet remained due upon said mortgage the sum of $2,084.59. A second affidavit of renewal was filed on November 4, 1914, stating the amount yet due upon said mortgage to be $2,084.59; that between November 1, 1913, and November 4, 1914, complainants sold various bills of merchandise to defendant Brink, out of which accounts arose for deferred payments which were due and payable from Brink to said complainants prior to November 4, 1914, wherefore it is charged that said chattel mortgage is void as to complainants. As ground for equitable relief said bill thereupon further alleges:

(7) That on, to wit, November 11, 1914, said Rolla W. Brink transferred all of Ms said stock of groceries and the fixtures pertaining thereto to said Marius Hanson, otherwise than in the ordinary course of trade and in the regular and usual transaction of his said' business, and in violation of all of the provisions of Act 223 of the Public Acts of 1905, known as the ‘Sales in Bulk Act.’
“(8) That the aforesaid transfer to said Marius Hanson of said property constitutes a fraud upon your orators. That said transfer to said Marius Hanson by said Rolla W. Brink is absolutely void as to your orators, owing to the provisions of said Act 223 of the Public Acts of 1905, and that your orators are entitled to reach said property so transferred to said Marius Hanson and apply it upon their said claims.
“(9) That by virtue of the provisions of said Act 223 of the Public Acts of 1905_, the said Marius Hanson has become a receiver of said stock of merchandise and fixtures pertaining thereto, and is accountable to your orators for all of the goods, wares, merchandise, and fixtures that have come into his possession by virtue of such transfer.
“(10) That said Marius Hanson is threatening to sell and dispose of said stock of merchandise and said fixtures, and is about to do so, to innocent third parties, and if such sale and transfer by said Marius Hanson is permitted to occur, the fights of your orators in said property will be jeopardized and entirely lost.”

Complainants filed this bill, claiming the benefits of said Act No. 223, Pub. Acts 1905, making application for an injunction and a receiver, subsequently filing a supplemental bill praying for an. accounting; but a stipulation was entered into between the parties, by which the claim for a receivership was waived, it being agreed, however, that complainants waived none of their rights in this suit thereby, nor any claim which they might have against defendant Hanson on account of his having taken possession of the property in question. Hanson thereupon demurred to complainants’ bill, on various grounds, the principal questions urged in his counsel’s brief being that Brink’s indebtedness to complainants, created between the time when the first affidavit of renewal had expired and the second, was filed, did not have priority over said mortgage; that Hanson, in taking possession under and foreclosing’ his, chattel mortgage, was not required to comply with the so-called “Bulk Sale” act of 1905, and that any rights complainants might have are enforceable under appropriate legal proceedings in an action at law. As a'foundation for defendants’ chief argument it is assumed that Hanson was proceeding to foreclose his chattel mortgage, and took possession of the property for that purpose under authority of the mortgage, which the bill does not allege and complainants’ counsel refuse to concede, saying:

“This is an allegation of fact, and will sustain proof, either that the groceries and fixtures were voluntarily turned over, or that Mr. Brink permitted Mr. Hanson to peaceably take possession.”

The bill, on the contrary, distinctly alleges, not that Hanson demanded and took possession for foreclosure purposes, but that Brink transferred all of his stock of groceries and fixtures to him otherwise than in the ordinary course of trade, etc., in violation of the sales in bulk act and in fraud of complainants’ rights. So far as shown by the bill, the stock of goods might have been worth several times the amount secured by the chattel mortgage and bought outright, in bulk, by Hanson at Brink’s solicitation. What concessions, if any, in variance of allegations in the bill, were made before the trial court, is not disclosed by the record before us, but it appears that the demurrer was sustained on the theory that a chattel mortgage foreclosure was shown, the court saying:

“I can see much difficulty in trying to work out this act as applying to a person who holds a chattel mortgage, and I can’t see how the court is going to do it. * * * Under this sales in bulk act if he is buying this property, then he can compel Mr. Brink to give him a list of creditors. But a man taking possession of property under a chattel mortgage never can comply with the act because he cannot compel a list of creditors. So that if you are going to say that that act compels a man taking possession under a chattel mortgage, I don’t care whether his mortgage is valid as to creditors or not, why he never, dares to take possession. He can’t get a list of the creditors. That, coupled with the suggestion that I made to counsel during the arguments, compels me to believe that this act should not be held to apply to a case of this kind. But before we go into any question of proofs in the matter, I think we can get the matter decided if counsel desire to take it to the Supreme Court. * * * An order will be prepared * * * sustaining the demurrer.”

An order was thereupon entered sustaining the demurrer with costs, and subsequently said bill was dismissed.

Except as inferable from the opinion of the trial court, it is not made clear from the record and briefs before us that complainants contend the mortgagor, if he did no more than submit without resistance or protest to a legal demand, and only allowed the mortgagee to take possession of mortgaged property under a valid chattel mortgage and foreclose the same, would make a voluntary sale or transfer of such property in violation of the sales in bulk act, but the views of the trial court upon that proposition appear to be the controlling reason and only ground given for sustaining the demurrer.

While we are constrained to conclude that the bill of complaint cannot, upon its face, be construed as alleging only an attempted foreclosure, in view of the condition' of this record upon that question, it may be said, in overruling the demurrer, that we are well satisfied a regular foreclosure of a valid chattel mortgage, though it results in a sale of the property to realize the indebtedness secured thereby, is not a voluntary sale, transfer, or assignment as contemplated by the provisions of said Act No. 223, Pub. Acts 1905.

In the present state of the record upon this demurrer, we deem it premature to consider the various other questions raised in briefs of counsel, which are not shown to have been passed upon by the trial court, and which may or may not be controlling, or important under the proofs. As before stated, the value of this property alleged to have been transferred is not disclosed, and an outright voluntary sale or transfer of it by Brink to Hanson, conveying a complete title so that the latter could keep, sell, or otherwise dispose of it as his own, could well be held, under facts which might be proven, to require compliance with the act in question, and invalid if they were ignored, under such conditions as would entitle complainants to equitable interference even though Hanson may have held a valid chattel mortgage upon this stock for some amount which might or might not, according to the proofs, have been sufficient to cover the purchase price agreed upon.

The demurrer will be overruled, with costs to complainants, and defendants allowed 20 days within which to plead over as they may be advised.

Reversed.

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


author: Moore, J. Bird, J.

text:
    PRICE v. DELANO.
    1. Process — Railroads—Receivers—Amendment—Parties.
    In an action • against the receivers of a railroad corporation, plaintiff’s proposed amendment of the declaration so as to introduce the corporation as the party defendant in place of the receivers was properly denied, where the return of service showed that the declaration was delivered to a station agent of the railroad, and failed to show for what company or persons the agent was acting; the return was not sufficiently definite to warrant the amendment and the action of the court in declining to substitute the corporation as defendant was right.
    2. Same — Jurisdiction—General Issue — Consent.
    An appearance and plea of the general issue in a cause naming as the defendants the receivers of a railroad corporation, ánd further stating that the defendants appeared by their attorney and demanded a trial, etc., was not a sufficient appearance for and in behalf of the railroad corporation, although correct and proper as to the receivers. •
    Error to Wayne; Gage, J., presiding.
    Submitted April 16, 1915.
    (Docket No. 143.)
    Decided June 14, 1915.
    Case by Edward L. Price against Frederick A. Delano and others, as receivers of the Wabash Railroad Company, for personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Affirmed.

      Dohany & Dohany, for appellant.

      Rufus G. Lathrop (Alexander L. Smith and Gustavus Ohlinger, of counsel), for appellees.
   Moore, J.

Plaintiff was injured while in the employ of the Wabash Railroad Company in November, 1910. The above named receivers were appointed in December, 1911. This suit was commenced in April, 1913. The declaration named the receivers as defendants, but counted upon a cause of action against the railroad company.

Upon the opening statement of counsel it appeared, as stated above, that the accident occurred prior to the appointment of the receivers. Counsel for defendant moved for a directed verdict on the ground that no recovery could be had against the receivers for injuries which were incurred prior to their appointment. It appearing to plaintiff’s counsel that this was a correct statement of the law, he asked the trial court for permission to amend his declaration, and that the names of the receivers simply be treated as surplusage, an'd the cause proceed against the Wabash Railroad Company. This proposed amendment was denied, and a verdict directed. The case is brought here by writ of error. Counsel say the case is on all fours with Daly v. Blair, 183 Mich. 351 (150 N. W. 134), and that the amendment should have been permitted.

Counsel for appellees say that much stress was put in the opinion in Daly v. Blair, supra, upon the fact that the declaration was duly served upon the station agent of the railroad company, and deny that this was done in the instant case. It becomes important, then, to examine the return of service. It reads, omitting some formal parts:

“John A. Kokowicz, being duly sworn, deposes and says that on Saturday, the 12th day of April, A. D. 1913, at the city of Detroit, in said county of Wayne, he served a true copy of the within declaration on the Wabash Railroad by then and there, at the place and on the date above mentioned, delivering to Mr. Anthony Wolfschlager personally, city ticket agent, a true copy of said declaration.”

It will be observed that the words used are “Wabash Railroad,” instead of “Wabash Railroad Company.” Perhaps, under the rule stated in Daly v. Blair, supra, the omission of the word “Company” might be cured, but what shall be said of the language, “by * * * ■delivering to Mr. Anthony Wolfschlager personally, city ticket agent, a true copy,” etc. ? For whom was he city ticket agent? We think this return is too indefinite to bring the Wabash Railroad Company into court.

But it is said there was an appearance and plea of the general issue, thus giving the court jurisdiction. This makes it important to refer to the appearance and plea. They read as follows:

“State of Michigan — The Circuit Court for the County of Wayne.
“Edward L. Price, Plaintiff, v.
“Frederick A. Delano et al.,
“Receivers of the Wabash Railroad,
“Defendants.
“Now comes the said defendants, by Rufus G. Lathrop, their attorney, and demand a trial of the matters set forth in said plaintiff’s declaration.
“Rufus G. Lathrop.
“Attorney for Defendants.”

This would undoubtedly be a good appearance and plea, so far as the receivers are concerned, but we do not think the Wabash Railroad Company is brought into court by it. The case is .clearly distinguishable from Daly v. Blair, supra.

Judgment is affirmed.

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

Bird, J.

The failure of the return to show a valid service on the defendant proposed to be substituted clearly distinguishes this case from Daly v. Blair.


author: Bird, J.

text:
    PEOPLE v. GRUNLAND.
    1. Bastardy — Payment—Death cot Child — Criminal Law — Dismissal.
    Upon, the death of the alleged bastard in bastardy proceedings, the same do not end, hut respondent continues liable for expenses of the care and death of the'child and its maintenance during its lifetime.

    2. Same — Evidence—Expenses.
    What the expenditures in any given case may have been is a proper and necessary subject of inquiry on the trial to enable the court to fix the amount to be ordered to be paid; if no proofs were taken to ascertain the actual expenses of care and support of the child, an order fixing the sum of $150 to be paid by respondent was unauthorized and must be vacated.
    Certiorari to Houghton; O’Brien, J.
    Submitted April 23, 1915.
    (Docket No. 122.)
    Decided June 14, 1915.
    Jacob Grunland was convicted of the charge of bastardy and brings certiorari.
    Affirmed in part and reversed as to the amount of judgment, with leave to take further proceedings.

      William J. Galbraith, Prosecuting Attorney, for the people.

      Burritt & Burritt, for respondent.

       As to abatement of bastardy proceeding by death of the child, see note in 30 L. R. A. (N. S.) 1168.

   Bird, J.

The principal question for solution in this case is whether bastardy proceedings abate upon the death of the child. The complainant, Alvera Stone, made a complaint on the 16th day of July, 1914, under section 5901 et seq., 2 Comp. Laws (2 How. Stat. [2d Ed.] § 4986 et seq.), charging respondent with being the father of her child. The child was born on April 19, 1914. The respondent was arrested and held for trial in the circuit court. After that, but before the trial, the child died. After the testimony was taken at the trial, which took place in September, 1914, it appearing that the death of the child occurred on August 31, 1914, respondent moved the court for an order dismissing the case. The court denied this motion, and the question of the paternity of the child was left to the jury, and they returned a verdict of guilty. The trial court thereupon made an order requiring respondent to pay $150 for the use and benefit of complainant.

While this precise question has never been passed upon by this court, other State courts whose filiation statutes, like our own, were passed for the purpose of protecting the public against the necessity of supporting illegitimate children, have held that the proceedings thereunder were not abated by the death of the child. Hauskins v. People, 82 Ill. 193; Smith v. Lint, 37 Me. 546; Meredith v. Wall, 96 Mass. (14 Allen) 155; Hanisky v. Kennedy, 37 Neb. 618 (56 N. W. 208).

The reasons for this holding are well expressed in Smith v. Lint, supra, where it is said:

“The expenses for the maintenance of an illegitimate child commence at its birth. They include what may be necessary for its support and comfort. The liability of the father is co-extensive with that of the mother, and relates to the past as well as the future. The order of court, charging him with maintenance, embraces expenses which have been, as well as_ those which may be, incurred. The death of the child relieves the father from future support, but furnishes no discharge as to the past.”

In the instant case the child lived 4 months and 11 days. More or less expense must have been necessarily incurred by some one during that period. Had the child lived, the liability of the respondent covering this period would not have been questioned. If this be so, we can see no valid reason why he should not be held liable if the child died at the end of that period.

But it is contended that, if this be the proper construction, the court had no basis for fixing the amount of the order at the sum of $150, as there was no proof as to any expenses having been incurred by any one. In his return to the writ of certiorari the circuit court returns that:

“I further certify that no proofs were taken by me to ascertain the amount of money said Alvera Stone, the_ mother of said child, had expended, if any, for the maintenance of said child, although I did make some informal inquiries as to the expenses

In a case of this kind the authority of the trial court to make an order for any sum must rest upon the fact that there have been expenditures incident to the care and support of the child. What the expenditures may have been in any given case is not only a proper, but a necessary, subject of inquiry on the trial to enable the court to properly fix the amount of the order. As the return -of the court shows that this was not done, the order will be vacated. The verdict adjudging respondent to be the father of the child will stand. Leave is granted to take further testimony bearing upon the question of expenditures as a basis for a new order therein.

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