text:
    EBEL v. PIEHL.
    1. Gifts — Choses in Action — Assignment.
    Where defendant received property from his father upon a promise to pay his sister a certain sum of money after his father’s death, the chose in action thus created, when assigned by the father to his daughter, was enforceable by her against defendant, after the father’s death.
    2. Same — Evidence.
    Defendant, who had received property from his father upon a verbal promise to pay his sister 8400 at his father’s death, afterwards, in the presence of his sister, asked his father, “ What do you want me to give Kate when you are dead Vr The father replied, "I told you you were to give her 8400 at my death; I want you to give her writings.” Defendant said that it would be all right, and told his sister he would pay it. Held, that the jury were warranted in finding that the father transferred the cause of action to the sister.
    3. Same — Gifts in Futuro and in Presentí.
    The transfer by the father was not a gift in futuro, but a gift - inprcesenti of a promise to pay in the future.
    4. Same — Instructions—Error—Favorable Rulings.
    A charge that the transfer was a gift in futuro, and revocable by the father, was not prejudicial to defendant.
    5. Same — Assignment—Question for Jury.
    A charge that, if the father turned the property over to defendant upon the latter’s promise to pay plaintiff, the jury should find for plaintiff, was error, as the question of the assignment by the father to the daughter was denied by defendant.
    6. Appeal — Questions Not Raised Below.
    An objection that plaintiff could not recover under the common counts will not be considered on error, where the objection was not made in the trial court.
    Error to Cheboygan; Shepherd, J.
    Submitted May 15, 1903.
    (Docket No. 93.)
    Decided July 8, 1903.

      Assumpsit by Catherine Ebel against Daniel Piehl for money had and received. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Frost & Sprague, for appellant.

      Charles D. Barghoorn, for appellee.
   Carpenter, J.

Defendant is plaintiff’s brother. In 1895 their father, who lived in Hanover, Canada, transferred to defendant property consisting of a house, two lots, notes, and cash, of the aggregate value of $1,500. According to plaintiff’s testimony, defendant, on his return, said he would pay her $400 at their father’s death. Subsequently the three — the father, the plaintiff, and defendant — had a conversation about the matter at plaintiff’s residence. At this time defendant asked his father: “What do you want me to give Kate [the plaintiff] when you are dead?” The father replied: “I told you you were to give her $400 at my death. That was understood. * * * I want you to give her writings.” The defendant thereupon said: “I didn’t think you told me, but I should have done it anyway. * * * That will be all right, father. I will see to that,” — and, turning to plaintiff, said in English (the former conversation having been in German): “I don’t see what you want to bother father about that money for. I am good for it; I am worth the money; and I told you I would pay it.” After the father’s death, defendant discharged a mortgage of $196 which he held against plaintiff’s property, and refused to pay the balance. Plaintiff brought this suit on the common counts in assumpsit, to recover the balance claimed to be her due. Defendant testified that neither he nor his father ever agreed that plaintiff should be paid as she claims. The case was submitted to the jury, who found for the plaintiff. Defendant contends that, on the case made by the plaintiff, a verdict should have been directed in his favor, and that the court erred in charging the jury as hereinafter stated.

We think plaintiff made a case for the consideration of the jqry. If it is true that, when the defendant made the promise testified to by plaintiff, he had already received the property under an agreement which imposed no other obligation upon him than to “furnish his father with money for his own personal use as long as he lived,” there was no consideration for defendant’s promise, and it could not, for that reason, be enforced. But, if the testimony of plaintiff is credited, defendant received the property upon a promise that, on his father’s death, $400 should be paid to plaintiff. This ci’eated a chose in action, — a chose in action which, it is true, belonged to the father. Though intended for plaintiff’s benefit, it could not be enforced by her. Pipp v. Reynolds, 20 Mich. 88. The father might, however, transfer it to her; and, if so transferred, she could, as his assignee, enforce it. In our judgment, a fair construction of the conversation which occurred between the parties to this suit and the father after the property was received by. defendant warrants, if it does not compel, the conclusion that the father did transfer to plaintiff this cause of action. This is not the case of a gift in futuro, and therefore is not subject to the law governing such gifts. Between the defendant and his father, it was an existing cause of action. Between the father and the plaintiff, it was a gift, — a gift of a promise to pay money in the future, of an existing cause of action; but the gift itself was a gift in prcesenti. When the defendant, who had promised to pay the money (a promise evidenced by no writing), at the request of the father, to whom the promise was made, agreed with the sister, for whose benefit the money was to be paid, that it should be paid to her, there was all the delivery possible under the circumstances, and a delivery sufficient to answer the requirements of law. See article on “Novation,” by Prof. J. B. Ames, 6 Harv. Law Rev., at page 189; M’Fadden v. Jenkyns, 1 Phillips, 153; Meert v. Moessard, 1 Moore & P. 8. It is true that the learned circuit judge, in charging the jury, treated the gift as a gift in futuro, and said that it was revocable by the father. This, we think, was error; but it was prejudicial to the plaintiff, and not to the defendant.

We think, however, the court erred in charging the jury as follows:

“Was the property turned over to Dan with the express understanding between Dan and his father that, at the old man’s death, Dan should pay the plaintiff $400 ? * * * If you find that there was such an understanding as is claimed by the plaintiff, and old Mr. Piehl, until his death, continued of that mind,' — that is, the desire to provide and give $400 to Catherine at his death, — your verdict will be for $204 * * * and interest.”

According to this charge, plaintiff is entitled to a verdict ■even if her father did not assign to her the cause of action against defendant. This, as we have already shown, was •error. The error in this part of the charge is not corrected •elsewhere. We cannot assume that this error was not prejudicial, for, if defendant’s.testimony was believed, the •assignment did not take place as plaintiff claimed.

The defendant insists that the plaintiff could not recover for this cause of action under the common counts in assumpsit. The record fails to show that this objection was made in the trial court, either during the taking of testimony or afterwards. The only exception that appears to have been taken until after the jury was charged is to the refusal of the court ‘ ‘ to direct a verdict for the defendant of no cause of action.” For this reason, we must •decline to consider the objection in this court.

For the error pointed out, the judgment of the court below will be reversed, and a new trial granted.

The other Justices concurred.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    REED v. PARKER.
    Justices’ Courts — Joint Defendants — Adjournments — Jurisdiction. .
    Where the record of a judgment in a justice’s court does not show that the action was on any contract or obligation, or in what county the defendant not served was to be found, or that the alias summons issued was directed to the sheriff or a constable of the county where such defendant might be found, or that the justice indorsed on the alias what defendant had been served in the county where suit was commenced, as required by 1 Comp. Laws, § 720, pi’oviding for bringing suit in justice’s court against two or more joint defendants, one of whom may be found in. the county, a judgment rendered after an adjournment of 11 days on the justice’s own motion is void as to both the nonresident defendant and the-one served in the county.
    Appeal from Genesee; Wisner, J.
    Submitted May 15,, 1903.
    (Docket No. 87.)
    Decided July 8, 1903.
    Bill by Dewitt C. Reed, Herbert C. Reed, and Moses Hill against Grant Parker, John W. Dunstan, Marshall L. Stringer, Zachariah Stringer, and Edgar J. Osband, in aid of execution. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Brown & Farley, for complainants.

      Lee & Parker (Edward J. Bissell, of counsel), for defendant Marshall L. Stringer.
   Carpenter, J.

This is a bill in aid of an execution. Except in the particular that the complainants are different individuals, and had a different judgment, the facts-are precisely like those in the case of Morley Bros. v. Stringer, 133 Mich. 690 (95 N. W. 978). The only question, therefore, which demands discussion, relates to the validity of the judgment upon which complainants base their claim to relief. The court below, as we infer from the record, determined complainants’ judgment to be void, and for that reason dismissed their bill.

The judgment relied upon was rendered by a justice of the peace in the county of Genesee. The transcript of his docket, so far as material to the discussion in this case, is as follows:

“Dewitt C. Reed, Herbert G. Reed, and Moses Hill, a Copartnership, v. Grant Parker and John W. Dunstan, a Copartnership, Doing Business under the Name of Grant Parker and John W. Dunstan.
“Suit commenced by summons July 8, 1893. Summons issued and returnable at my office, in the city of Flint, Michigan, on the 18th day of July, 1893, at one o’clock p. m.
“ July 18, 1893. Summons returned personally served on Grant Parker, one of the defendants (the other being out of the county), by M. P. Branch, deputy sheriff, July 10, 1893.
“July 18, 1893, one o’clock p. m., at my office, in the ■city of Flint. Suit called. Plaintiffs in court by their attorney. Court held open for one hour, and defendants did not appear. Suit adjourned to July 29, 1893, at one o’clock p. m., at my office, in the city of Flint, Alias summons issued on July 18, 1893, and returnable at my office, in the city of Flint, July 29, 1893, at one o’clock in the afternoon.
“July 29, 1893. Summons returned personally served •on John W. Dunstan, one of the defendants, July 21, 1893, in Oakland county, Michigan, by Frank E. Jenkins, deputy sheriff.
“July 29, 1893, at my office, in the city of Flint, at one o’clock p. m. Suit called. Plaintiffs in court by their attorneys, Sayles & Sayles, who were sworn as to their authority to appear for the plaintiffs. Defendants did not appear. Plaintiffs declare upon all the common counts in assimpsit, as in bill presented in court, and being sworn to, and the same was placed on file as evidence in the cause. Court held open for one hour and more, and defendants not. appearing, and on the evidence presented and filed in the cause, judgment was rendered by me on the 29th day of July, 1893, against Grant Parker and John W. Dunstan, defendants, and in favor of Dewitt C. Reed, Herbert C. Reed, and Moses Hill, plaintiffs,- for the-sum of one hundred and ninety-seven and eighty-five hundredths dollars damage, and five dollars and eighty cents costs of suit.”

The only authority the justice had for the adjournment from July 18th to July 29 th — a period of 11 days— must be found in section 720 of the Compiled Laws of 1897. That section reads:

“When an action on any contract or obligation shall have been or shall be brought before any justice of the peace of this State against two or more joint defendants, one or more of whom shall not reside or be found in the-county where the suit shall be brought, and one or more of the defendants shall be served with process in the county where suit is commenced, and due proof of such service shall be filed with the justice of the peace before whom such suit is pending, upon application of the plaintiff in such action, at any time within four days from the return day of the writ by which such action was commenced, the justice shall issue one or more alias writs of summons or other writ whereby such suit was commenced, returnable-not less than six or more than twelve days from date of' issue, directed to the sheriff or any constable of the county or counties where such defendant or defendants not so-served may be found; and the justice shall indorse on such alias writ or writs what defendant or defendants have-been served in the county where such suit is commenced, as shown by the proof of service filed with such justice; and it shall be the duty of such sheriff or constable to serve-such process not less than six days from the return day thereof, and make return thereof to the justice of the peace-issuing the same: Provided, that it shall be the duty of the justice of the peace, on the return day of the first writ, to continue the cause upon his own motion, and without pleadings, until the return day of the alias writ or writs. ”'

In speaking of a similar statute applicable to service of' process issued by a circuit court upon defendants out of the county, this court, in Baxter v. Kent Circuit Judge, 92 Mich. 293 (52 N. W. 295), said:

“The general rule is that service of process can only be-made in the county of its issue. The proceeding contemplated by this section is special, and parties acting under this statute must keep within its terms. * , * * ‘A defendant has a right to know from the record whether he is subject to the jurisdiction.’ Denison v. Smith 33 Mich. 155.”

The record of the justice in this case does not show that the action was on any contract or obligation. While it does show that one of the two defendants was served in the county, and that the other was out of the county, it does not show in what county the defendant not served is to be found, or that the alias summons was, as required by law, ‘ ‘ directed to the sheriff or any constable of the county * * * where such defendant * * * may be found,” or that the justice indorsed on such alias “what defendant has been served in the county where such suit is commenced. ” It is a fair inference from the entries in the justice’s docket that the alias served on defendant Dunstan in Oakland county was in form like those issued by the justice to officials in Genesee county. The justice had no right to adjourn the suit 11 days on the issuance of such an alias, and its service in Oakland county. It follows from this reasoning that the justice lost jurisdiction to render a judgment against defendant Grant Parker, and never acquired jurisdiction to render a judgment against defendant Dunstan.

The decree of the court below must be affirmed.

The other Justices concurred.


text:
    SOSNOFSKI v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Personal Injuries — Gross Negligence.
    Plaintiff was injured while crossing a railroad track in a public street, by a steel rail being handled by defendant’s workmen. Her testimony tended to show that no barriers were placed across the street; that she had passed over the track on her way to a store, and had noticed that some planks and rails were taken up. On her return, shortly afterwards, she noticed nothing to indicate danger until the instant she was injured. Defendant’s testimony tended to prove that the place was guarded by barriers, and that the workmen did not see plaintiff until too late to prevent the injury. Held, that the evidence did not warrant a finding that the workmen were guilty of such negligence that defendant was responsible notwithstanding plaintiff’s contributory negligence.
    2. Same — Precedent Negligence.
    Plaintiff could not recover, notwithstanding her own negligence, unless the evidence should show that defendant discovered her in a situation where due care on her part would not, and due care on its part would, have prevented the injury.
    3. Same — Contributory Negligence — Instructions.
    In an action against a railroad company for injuries to a pedestrian at a crossing, it was not error to instruct the jury that, if plaintiff saw evidences of repairs at the crossing, she was bound to observe whether the repairs interfered with travel; that it was her duty to avoid danger that would be apparent to an ordinarily prudent person; and that, if she failed to exercise the care of an ordinarily prudent person under like circumstances, she could not recover.
    4. Same — Barriers at Place oe Danger.
    A charge that plaintiff could not recover if barriers were placed across the street was not prejudicial to plaintiff, where it was her theory that there were no barriers, and it was apparent from her testimony that she approached the place of danger without using the care she should have used had she been warned by barriers.
    5. Same — Place of Safety — Acts of Others.
    The fact that others had passed over the crossing where plaintiff was hurt on the same day did not tend to prove that it was u safe place in which to pass.
    6. Same — Opinion op Court — Question por Jury.
    The statement by the court in denying a motion to direct a verdict, that he considered it one of those close cases which should go to the jury, and that different minds might draw different inferences from the testimony, could not be presumed to have improperly influenced the jury.
    Error to Ingham; Wiest, J.
    Submitted June 2, 1903.
    (Docket No. 6.)
    Decided July 8, 1903.
    Case by Charlotte Sosnofski against the Lake Shore & Michigan Southern Eailway Company for personal injuries. From a judgment for defendant, plaintiff brings ■error.
    Affirmed.

      John J. Zimmer (F. 8. Porter, of counsel), for appellant.

      C. E. Weaver, for appellee.
   Carpenter, J.

On the 30th of April, 1900, defendant was repairing its track at the intersection of its railway and Franklin street, in North Lansing. While plaintiff was walking on said street across said track, between noon and 1 p. m. of said day, a steel rail being handled by •defendant’s employés rolled on her foot, and crushed the great toe. She brought this suit to recover damages.

Plaintiff’s testimony tended to prove that no barriers were placed where the repairs were being made. When she was injured she was returning home from the grocery store. On her way to the store she had passed over the track at this place, and had noticed that some of the planks and rails were taken up. On her return she observed nothing to indicate danger, and was not warned until the very instant she was injured. Defendant’s testimony tended to prove that the place was guarded by barriers, and that the workmen handling the rail did not observe plaintiff until too late to prevent the injury. The issue was /submitted to the jury, who found a verdict for the defendant. Various errors are assigned, all but one of which relate to the charge of the court. We will consider such of these as, in our judgment, deserve discussion.

The court charged the jury: “ There is no evidence in this case that will justify the jury in finding that the workmen were guilty of wanton or willful negligence in moving the rail,” and that plaintiff must prove herself free from having contributed toward the injury. The claim is made that the evidence warranted the jury in finding that defendant’s employés were guilty of such negligence as to make defendant responsible, notwithstanding plaintiff’s own negligence. We are of the opinion that the evidence does not justify this claim. To justify it, the evidence must warrant the inference that defendant’s employés discovered, or by the exercise of due care should have discovered, plaintiff in a situation where due care on her part would not, and due care on their part would, save her from injury. See Richter v. Harper, 95 Mich., at p. 225 (54 N. W. 768). No such inference could be drawn from the testimony. Plaintiff herself was present on the scene as an actor, possessing the ability and charged with the duty of exercising due care for her own safety. She possessed this power, and was under this obligation, up to the very moment of her injury.

Error is assigned because the court charged the jury:

“If she saw evidences of repairs being made at that point by the railroad, then she is to be held to have had her attention challenged thereby to the fact, and she was bound to observe whether the repairs interfered with the passage of persons at that point across the track. If she saw workmen moving a rail along the walk and rolling it into place in the track of defendant, it was her duty to avoid a danger that would have been apparent to a person of ordinary caution and prudence. * * *
“If there was no one at work, what caused the rail to" fall upon the plaintiff’s toe? If persons were working, moving the rail, did she see them ? If she did not, ought she, by the exercise of the care and caution of an ordinary prudent person in passing along the street, and about to cross a railway track, to have seen them ? If so, then she was bound to pay some heed to what was being done, and, if she paid no' heed, and was injured, where a person of ordinary prudence would have seen and avoided the danger and saved herself from injury, she cannot recover. * * *
“It was broad daylight, and the question is, Did she know the men were rolling the rail, or ought she, by the exercise of ordinary prudence, to have known tfie same ? If she did know or ought to have known, and failed to exercise the care and prudence of an ordinary prudent person under like circumstances, she cannot recover.”

It is said that these instructions virtually directed the jury to return a verdict for the defendant. This statement is entirely unjustified. We think the instructions complained of unobjectionable.

Error is also assigned on these portions of the charge:

“ If barriers were placed as claimed by defendant, then the existence of the same was a direct challenge to the plaintiff that there was danger to be apprehended in crossing at that point, and if she stepped over the same in defiance of it, and proceeded to cross where the workmen were at work, and was injured, she cannot recover.”
‘ ‘ If there were barriers placed across the walk in manner as claimed by defendant, and she stepped over them, and was injured, she cannot recover.”

It cannot be said that the mere fact that barriers are erected, in cases of this character, will always afford an answer to the charge of negligence. This charge, however, was not erroneous if the testimony warranted no theory upon which plaintiff could have recovered if the barriers guarded the place of the injury in the manner claimed by defendant. The theory of her case, as made by the testimony of plaintiff and her witnesses, is that there were no barriers; and it is apparent from her testimony that she approached the place of danger without the care that she would have used had she been warned by such barriers. • The testimony in the case would not, therefore, warrant the jury constructing a theory upon which a verdict could be rendered for the plaintiff on the assumption that the barriers were there.

It is contended that the court erred in charging the jury:

‘ ‘ The fact, if it is a fact, that other people passed over this walk that day, is not evidence, and cannot be considered by you as evidence, that it was a safe place in which to pass. You will determine that question from the evidence in this case, and not from what some other person has done or may have done.”

It has been often held that what people customarily do affords a standard of due diligence. The question presented here, however, is a very different one. Did the fact that others had passed over this walk furnish evidence, not that it was prudent to pass over the walk, but that the walk itself was in a safe condition ? The question was not whether it was prudent to risk a certain danger, but whether or not such a danger existed. We think the court was right in saying that this was to “be determined from the evidence, and not from what persons had done.”

In denying defendant’s motion to direct a verdict for the defendant, the court said:

• “The motion is denied. You may proceed with the defense. The record may show that the court considers this one of those close cases which should go to the jury under instructions from the court. Different minds might draw different inferences from the testimony, and conclusions.”

This must be taken as a statement of the reason why the court denied defendant’s request. We are bound to suppose that the judge was of opinion that the question of whether or not a verdict should be directed for the defendant was a close one. We cannot presume that this improperly influenced the jury in determining the questions submitted to them, particularly when the judge said, “Different minds might draw different inferences from the testimony, and conclusions.”

In our judgment, the trial judge committed no error prejudicial to plaintiff, and therefore the judgment is affirmed.

The other Justices concurred.


text:
    NEILANDS v. WRIGHT.
    1. Statute of Limitations — Judgments—Part Payments.
    A part payment upon a judgment by a policeman of Detroit suspended the running of the statute of limitations, though policemen, in order to hold their positions, were required to pay their debts.
    2. Same — Duress.
    The fact that a judgment in justice’s court was obtained against the defendant without his knowledge, as there was an agreement that the case should be dropped, and that he was unable to appeal, does not indicate that payments upon the judgment while the defendant was a policeman, and required by law or rules to pay his debts, were made under such circumstances as to repel the presumption that he recognized his obligation to pay it.
    Error to Wayne; Frazer, J.
    Submitted June 3, 1903.
    (Docket No. 11.)
    Decided July 8, 1903.

      Assumpsit by Abraham Neilands against Frederick J. Wright to recover a balance due upon a judgment. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Corliss, Andrus, Leete & Joslyn (Bay B. Morgan, of counsel), for appellant.

      John Considine, Jr. (Galloway & Graham, of counsel), for appellee.
   Carpenter, J.

This suit was commenced February 12, 1901, on a judgment rendered in justice court on the 25th of January, 1894. The defense was that the claim was barred by the statute of limitations. Defendant had made several payments, — the first • September 26, 1894, and the last December 10, 1900, — aggregating $169.75, to apply on said judgment. On the trial, defendant’s counsel stated that the only question he raised was that payment on a judgment does not take it out of the statute of limitations. The trial was adjourned to the following day. He then stated:

“When payments were made on this judgment, they were made under duress. Mr. Wright, at the time or soon after the judgment was rendered, went onto the police force; and under their requirement at that time, and under the police law now, policemen had to pay their debts. The police commission did not go behind the judgment, whether it was right or wrong. Mr. Wright was not able, at the time judgment was rendered, to take an appeal,- — in fact, did not know that there had been a judgment, because, by an agreement between him and the plaintiff, the case was to be di'opped. Yet a judgment was rendered against him in such a sum that he was not able to give a bond. The payments that were made upon this judgment were made under duress.”

The court replied, “I do not think all you state amounts to duress,” and thereupon charged the jury to render a verdict for the plaintiff for the balance of the judgment.

The objection now urged, and upon which defendant seeks a reversal of the judgment, is that “he was not allowed to go into the merits of his case, in order that he might show that the payments made by him were not a recognition of the indebtedness, nor a promise to pay the balance of the judgment.” Defendant’s counsel rely upon Jewett v. Petit, 4 Mich. 508; Parsons v. Clark, 59 Mich. 417 (26 N. W. 656); and Lester v. Thompson, 91 Mich. 254 (51 N. W. 893). In each of these cases it was held that a payment made upon a claim under such circumstances as to repel the presumption that the debtor thereby recognized his obligation to pay the entire debt did not prevent the running of the statúte of limitations. These decisions, in our judgment, have no application to the case made by the record. Defendant’s claim that the judgment was obtained in the manner stated by his counsel in no way indicated that the payments on said judgment were made under such circumstances as to repel the presumption that defendant thereby recognized his obligation to pay it. The trial judge .was bound to presume, and this court must presume, that these payments were unaccompanied by any fact or circumstance which would tend to qualify their presumed effect. That such a payment interrupts the operation of the statute of limitations is indicated by the cases relied upon by defendant’s counsel. The rule of law applicable to this case is clearly stated by Judge Cooley in Miner v. Lorman, 56 Mich. 216 (22 N. W. 266), in the following language:

“The statute does not prescribe what effect part payment of a demand shall have, but it is familiar law that it operates as an acknowledgment of the continued existence of the demand, and as a waiver of any right to take advantage, by plea of the statute of limitations, of any such lapse of time as may have occurred previous to the payment being made.”

The judgment of the court below must therefore be affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    ANDERSON CARRIAGE CO. v. PUNGS.

    1. Pleading — Common Counts — Fraud.
    Where corporations consolidate, and new stock is issued to the shareholders of each on a basis of the value of the assets of each, the new company cannot recover on the common counts against one who has sold his stock, for money received by him for such proportion of the stock as represented the value of certain assets of one of the original companies which proved to be valueless, and which he had falsely and fraudulently represented to be good, as the remedies are, first, an action for damages for fraud, and, second, a rescission of the contract.

      2. Same — Assumpsit—Statute.
    A plaintiff cannot rely upon the statute (3 Comp. Laws, § 10421) authorizing an action o£ assumpsit for fraud and deceit, where his declaration does not, either by reference to-the statute or by averment of necessary facts, bring his case within its provisions.
    Error to Wayne; Hosmer, J.
    Submitted June 3, 1903.
    (Docket No. 24.)
    Decided July 8, 1903.

      Assumpsit by the Anderson Carriage Company against William A. Pungs for money had and received. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Russel & Campbell, for appellant.

      Barbour, Rexford & Field, for appellee.

       Rehearing denied October 12, 1903.

   Montgomery, J.

In February, 1897, two corporations-were in existence in Detroit, the one known as the Anderson Manufacturing Company, and the other as the American Railway Supply Company. By an agreement between the officers of the two corporations, a new corporation was organized, known as the Pungs-Anderson Manufacturing Company; the corporation being instituted for the purpose of absorbing the two first-named corporations. The assets of each of said companies were transferred to the new corporation, and, in payment for the same, stock in the Pungs-Anderson Company was issued to the respective holders of stock in the two merging corporations on a basis of the valuation of the assets of each company; i. e., to the stockholders of the American Railway Supply Company, $100,000, and to the stockholders of the Anderson Manufacturing Company, $70,000. The present plaintiff is the Pungs-Anderson Manufacturing Company under a new name. The defendant, Pungs, was a large shareholder in the American Railway Supply Company, and took part in the negotiations resulting in the consolidation, and was allotted stock in the new company to the amount of $33,781.25.

On the trial of the present case the plaintiff offered to prove that, during the negotiations for consolidation, the defendant, Pungs, misrepresented the character and value of certain assets of the American Railway Supply Company, thereby securing to the shareholders of said company a larger allotment of stock in plaintiff company than they were entitled to, and that defendant subsequently sold his stock and converted it into money. The claim was made that the plaintiff is entitled to recover on the indebitatus assumpsit count, as for money had and received by the defendant for plaintiff’s use, the money received by defendant for such proportion of the stock issued to him by plaintiff as represented the value of the assets turned in to the plaintiff by the American Railway Supply Company which proved to be valueless, and were falsely and fraudulently represented by the defendant to be good. The particular items were given in the statement of counsel. The declaration was the common counts. The circuit judge was of the opinion that the plaintiff could not recover under the count for money had and received, and directed a verdict for defendant. Plaintiff brings error.

Plaintiff’s contention is that a fraud was committed, by which the issue of stock to defendant was, in round figures, $5,000 more than it would have been had the fraud not been committed; that the stock to that amount remained the property of the plaintiff; and that, on its sale, the money received by defendant was, at the election of the plaintiff, the money of the plaintiff. We think the premise faulty. If we assume that the plaintiff, rather than the Anderson Manufacturing Company, is the proper party to seek a remedy for this fraud, — as to which see Teachout v. Van Hoesen, 76 Iowa, 113 (40 N. W. 96, 1 L. R. A. 664, 14 Am. St. Rep. 206), — the remedies open were two: First,' an action for damages for the fraud and deceit; second, a rescission of the contract. It was not open to the plaintiff to treat the original contract as subsisting to the extent of so much stock as plaintiff claimed would have fairly represented defendant’s proportion of the true value of the property turned in by the American Railway Supply Company, and nonexistent as to the remainder. See Emerson v. Spring Co., 100 Mich. 127 (58 N. W. 659); Bedier v. Fuller, 106 Mich. 343 (64 N. W. 331); Id., 116 Mich. 126 (74 N. W. 506); Galloway v. Holmes, 1 Doug. (Mich.) 330.

Plaintiff’s counsel direct our attention to 3 Comp. Laws, § 10431, which authorizes an action of assumpsit for fraud and deceit. We do not think the plaintiff is in a position to invoke the aid of this statute. The declaration does not, either by reference to the statute or by averment of the necessary facts, bring the plaintiff’s case within its provisions. Hallett v. Gordon, 128 Mich. 364 (87 N. W. 261).

Judgment is affirmed, with costs.

The other Justices concurred.


text:
    KOTWICKI v. THURINGIA INSURANCE CO.
    Fire Insurance — Waiver of Conditions — Authority of Agent.
    A fire-insurance agent, having authority to permit other insurance, who receives a policy from the insured with a request for a permit for other insurance, and after eight days returns it, saying he has “fixed it all right,” while in fact he has made no indorsement, waives the condition that the policy shall be void if other insurance Is obtained without written permission indorsed upon the policy.
    Error to Alpena; Emerick, J.
    Submitted June 4, 1903.
    (Docket No. 37.)
    Decided July 8, 1903.

      Assumpsit by Frank Kotwicki against the Thuringia Insurance Company on a policy of insurance. From a j udgment for plaintiff, defendant brings error.
    Affirmed.

      Pierce & Kinnane, for appellant.

      Charles B. Henry, for appellee.
   Carpenter, J.

On the 15th of May, 1902, defendant insured plaintiff’s property against loss by fire. The policy was a Michigan standard policy. June 18, 1902, the insured property was burned. Defendant refusing to pay the insurance, plaintiff brought this suit.

It appeared from the testimony that before the fire, and after defendant insured his property, plaintiff procured thereon other insurance, and that permission to procure the same was not indorsed on or added to the policy issued by defendant. The testimony of the plaintiff, however, tended to prove that defendant’s agent who issued the policy, and who had authority to permit the other insurance, consented to the same; that plaintiff delivered to him the policy, and told him to “fix it so he could take more insurance;” that the agent kept the policy seven or eight days, and returned it to plaintiff, saying, “I have got it fixed all right;” that plaintiff took the policy, and did not look at it again until after the fire occurred, when, as already stated, he ascertained that permission for other insurance had never been indorsed thereon. Defendant’s agent testified that he “never had the slightest intimation that the insured had any other insurance until the morning after the fire.” The issue raised by this conflicting testimony was submitted to the jury, who found a verdict for the plaintiff.

The only question presented on this appeal is raised by defendant’s contention that, by reason of the provisions of said policy, which may be found in the opinion of this court in Rediker v. Insurance Co., 107 Mich. 224 (65 N. W. 105), the agent could not, by his oral agreement and the conduct testified to by plaintiff, waive the stipulation that other insurance rendered the policy void unless thereon indorsed. This contention is fully answered by the following decisions of this court: Beebe v. Insurance Co., 93 Mich. 514 (53 N. W. 818, 18 L. R. A. 481, 32 Am. St. Rep. 519); Rediker v. Insurance Co., 107 Mich. 224 (65 N. W. 105); Cronin v. Fire Ass’n, 119 Mich. 74 (77 N. W. 648); Walter v. Insurance Co., 120 Mich. 35 (78 N. W. 1011).

The judgment of the court below is affirmed, with costs.

The other Justices concurred.


author: Grant, J.

text:
    SPRING v. RAYMOND.
    1. Sal!es on Execution — Prior Deed.
    A creditor who knows, at the time of his levy, that the defendant has parted with his title to the lands, should proceed by bill in aid of execution; and a sale made without resort to such remedy, and after the recording of the grantee’s deed, will be set aside in equity.
    2. Same — Redemption—Creditors.
    One who buys land, but does not record his deed until after levy of execution, is not entitled to redeem from the execution sale as a creditor under the statute.
    Appeal from Kent; Perkins, J.
    Submitted June 5,. 1903.
    (Docket No. 31.)
    Decided July 8, 1903.
    Bill by Amelia Spring against Fred M. Raymond to set aside an execution sale. From the decree rendered, defendant appeals.
    Affirmed.
    Complainant became the owner of the legal title to the lands in dispute March 7, 1900, by deed from her brother, George N. Shaw, who was .then, and had been for many years, the owner. Through the fault of one to whom she intrusted this deed for record, it was not recorded until May 7, 1900. After this deed was given, defendant purchased a note against said Shaw and one Merrifield, who were joint makers, the consideration for which went to Merrifield, as defendant testified. For this note, defendant paid $1. He obtained a judgment in justice court on it for $107.07, took a transcript to the circuit court, caused an execution to be issued on May 4, 1900, levy made upon this land, and the sale thereof made July 7, 1900. The land was worth $2,400, and was subject to a mortgage of $1,400. Complainant filed this bill August 7, 1901, to procure the annulment of that sale, and the cancellation of the certificate thereof, as constituting a cloud upon her title. There was also a prayer for general relief. The case was heard upon pleadings and proofs, and the court below held the sale to Raymond to be regular and valid; that complainant was a creditor of the execution debtor, Mr. Shaw; treated the bill of complaint as a bill to redeem; and entered a decree that, within 30 days, complainant pay to defendant the full amount on such execution, with interest and costs of this suit. The defendant alone appeals.

      McKnight & McAllister, for complainant.

      Hatch & Wilson, for defendant.
   Grant, J.

(after stating the facts). In the view we have taken of this case, it is unnecessary to determine the question whether Mr. Shaw had homestead interests in this land at the time of the transfer to complainant, or whether the conveyance was made by both him and complainant with intent to defraud his creditors, or whether the sale is void because no attempt was first made to .satisfy the execution out of Mr. Shaw’s personal estate. Defendant’s main contention is that this levy took precedence over complainant’s unrecorded deed. It is insisted in his behalf that he had no actual or constructive notice, .at the time of the levy, of the existence of the deed; citing Corey v. Smalley, 106 Mich. 257 (64 N. W. 13, 58 Am. St. Rep. 474), and authorities there cited. It is insisted on behalf of complainant that the defendant had such notice, and that it was his duty to proceed by bill in aid of execution before sale, under Daniel v. Palmer, 124 Mich. 335 (82 N. W. 1067), and authorities there cited.

The reasons given in Daniel v. Palmer, and other decisions of this court, apply with remarkable force to this case. The record in the office of the register of deeds at the time of the sale showed a transfer by proper deed to complainant, executed two months before defendant’s levy, and recorded three days after the levy. There was no reason why complainant should keep it from record. On the contrary, due regard for the protection of her own interests would have prompted her to record the deed at once. Defendant is without equity. He purchased the note which is the basis of the judgment for only $1, knowing that Shaw received no consideration therefor; took no proceedings against ■ Merrifield, or to levy upon Shaw’s personal property, but insisted upon the levy and' sale of real estate worth eight times the amount of his judgment. It is evident that no one, however much he might desire to purchase this property, would bid upon a sale of land, the title to which stood in that condition. The defendant was willing to take his chances, evidently relying upon the priority of his levy over the unrecorded deed. No one but himself would bid, and, in so conducting the sale, he obtained title to this land, worth $1,000 over and above-the incumbrance thereon, for $128. Courts of equity will avoid such sales whenever the rules of law and equity will permit.

We think there is evidence in the case sufficient to-sustain the finding that defendant, at the time of his levy, knew that Mr. Shaw had parted with his title. The conversation which he admits having had with Mr. Shaw clearly informed him that Mr. Shaw had no leviable interest in the land.. It is true, the tenant, who had been tenant under him, was at the time of the levy in possession; but an inquiry of the tenant would undoubtedly have revealed the fact that Shaw had transferred the property to complainant, for there is reliable evidence to-show that the tenant knew of the transfer, and, as he expressed it, he had a “ new boss.”

Defendant’s counsel seek to bring the case within Atwood v. Bearss, 47 Mich. 72 (10 N. W. 112), and similar cases. In that case a husband and wife were in possession of and lived upon the land. She had conveyed it by deed to her husband. His occupancy was found to be under her ownership, and in right of the marital relation, and there was nothing to suggest that she had conveyed to him. In that case the grantor and the grantee were both in the possession of the property as husband and wife. There was nothing to indicate that the husband’s possession was any different than it had been. In this case the grantor was not living upon the property. It was rented from year to year. Under these circumstances, the presumption as to title is not the same as where the grantor remains in possession of the property. Aside from this question, however, we think he had knowledge and notice sufficient to, put him upon inquiry, and that he should have proceeded by bill in aid of execution.

We think that complainant was not a creditor of Mr. Shaw, as found by the court below, so as to entitle her. to redeem under the statute; but she has not appealed, and, it is said, tendered the money required.

The decree, therefore, must be affirmed, with costs.

The other Justices concurred.


text:
    HOAG v. SUPREME LODGE OF INTERNATIONAL CONGRESS.
    1. Benefit Insurance — By-Laws—Arbitration.
    Where the by-laws of a benefit association provide for the arbitration of all death claims, that the decision of the arbitrating body shall be final, and no suit at law or in equity shall be maintained by a beneficiary against the company, a claimant cannot bring suit on a death claim until the remedy given by the by-laws has been exhausted.

      2. Same — Waiver of Fraud.
    Fraud in the denial of liability on a death claim by a benefit association may be waived by submitting proofs and appealing from the decision of the local board.
    .Error to Calhoun; Winsor, J.
    Submitted June 5, 1903.
    (Docket No. 38.)
    Decided July 8, 1903.

      Assumpsit by Mary J. Hoag against the Supreme Lodge of the International Congress on a benefit certificate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Jesse M. Hatch and North & Salisbury, for appellant.

      William G. Howard, for appellee.
   Grant, J.

Plaintiff’s son, on April 18, 1898, became a member of the defendant, a fraternal insurance company organized under the laws of this State. He was a member of the local assembly in the city of Battle Creek. By the by-laws, assessments of 70 cents each are payable monthly on the 1st day of each month, but an extension is given to the 21st of the month, and they must be paid on or before that date, and, if not so paid, the member stands suspended from all benefits provided by the laws of the order. Mr. Hoag was in arrears at the time of his death, February 5, 1899. Plaintiff’s right of action is based upon her proposition to show that the defendant had not always insisted upon the payments by the 21st, but that it was customary to receive assessments from members after that date, and that it had so received dues from Mr. Hoag.

. Plaintiff applied to defendant for blanks upon which to make proof of death. The defendant refused, denying liability on the ground that Mr. Hoag had been suspended for nonpayment of assessments. Finally, however, defendant furnished her with the blanks. She perfected her proofs, and submitted them to the board of trustees of the local assembly, which rejected the claim. Her attorneys then prepared an appeal for her, which she took to the supreme body. That body met at the time provided for by its bylaws, but did not pass upon plaintiff’s appeal, as neither she nor any one appeared for her. The claim, therefore, still stands unacted upon, and will be for hearing at the next meeting of that body. Her claim, by this nonaction of the supreme body, is no more affected than would be the right of a litigant whose case has been continued to another term through his default for not appearing and demanding trial.

The court, upon offers of proof of the above facts, directed a verdict for the defendant, for the reasons (1) that Mr. Hoag was suspended; (2) that the court had no jurisdiction, under the former decisions of this court. The judgment must be sustained, under several prior decisions. Russell v. Benefit Ass’n, 116 Mich. 699 (75 N. W. 137), and authorities there cited; also Fillmore v. Great Camp K. O. T. M., 103 Mich. 437 (61 N. W. 785). The provisions of defendant in regard to the allowance of claims are substantially the same as those in the authorities cited. Under plaintiff’s own statement of the case in open court, and her offers of proof, she has not been deprived of the remedy which the defendant’s articles of association afford her. She was not satisfied with a denial of liability, but insisted upon making proofs. If there was any fraud prior to her submission of proofs and the hearing before the board of trustees, such fraud was waived by her action. Her case is now in the proper forum provided by the articles of association, to which Mr. Hoag agreed, and by which she is bound. She cannot maintain any suit at law until that remedy is exhausted. The case of Rose v. Supreme Court, Order of Patricians, 126 Mich. 577 (85 N. W. 1073), does not apply. The right to maintain suit in that case was based expressly upon the fact that plaintiff had been denied a hearing before the supreme court of the order.

Judgment affirmed.

The other Justices concurred.


author: ■ Grant, J.

text:
    GARDINER v. GARDINER.
    1. Witnesses — Matters Within Knowledge op Decedent.
    Complainant in a suit to cancel deeds from herself to her husband, since deceased, cannot testify as to matters equally within the knowledge of the deceased.
    3. Deeds — Delivery.
    In determining whether a deed has been delivered, the purpose of the parties in making it is an important factor.
    3. Same — Evidence.
    The testimony of a conveyancer that deeds were signed, acknowledged, and witnessed in his office, and that he does not know who took them from the office, does not show an actual delivery.
    4. Same — Recording by Grantee Without Delivery.
    Where a woman executed deeds of her property to her husband, but retained them in her possession, intending to convey the title to him in case she died first, but to hold it if he died first, and the husband, while she was seriously sick, and without her knowledge, took the deeds and had them recorded, the title did not pass, and she was entitled to have them canceled after his death.
    Appeal from Ingham; Wiest, J.
    Submitted June 5, 1903.
    (Docket No. 154.)
    Decided July 8, 1903.
    Bill by E. Eveline Gardiner against Joseph Gardiner, Sarah EL Adams, Jennie E. Olmstead, and Frederick P. Arthur, administrator of the estate of Nathaniel H. Gardiner, deceased, to set aside certain deeds. From a decree for complainant, defendants appeal.
    Affirmed.
    Complainant and the deceased, Nathaniel EL Gardiner, were husband and wife. They were married June 26, 1859, and had no children. She became the owner of certain real estate purchased with money inherited from her parents. He was also the owner of some real estate. On November 27, 1886, he conveyed by quitclaim deed his lands to her, which deeds were duly recorded November 30, 1886. On October 29, 1888, she signed and acknowledged two quitclaim deeds to her husband of the lands which he had conveyed to her, and also a warranty deed of her separate lands. These deeds bore date September 13,1887, and were recorded November 21, 1892. After his death— the date of which is not stated in the record or briefs, but was evidently in the year 1900 — complainant filed this bill, the object of which is the annulment of the,three deeds from her to her husband. The theory of the bill is that the deeds from her husband to her and from her to her husband were made in accordance with an understanding and for the purpose of securing the title to these lands to the survivor; that they went to a conveyancer, stated their purpose, and that the conveyancer advised them that their purpose could be accomplished by the making of the deeds; and that she was to retain the deeds from her to her husband in her possession, so that, if she died first, he could get them and record them, but that, if he died first, she could destroy them, there having been no delivery by her; that when she was very ill, and in anticipation of her death, her husband took these deeds from her possession without her knowledge, and recorded them; that she some time afterwards ascertained this fact, but that, under the promise and belief that he would some time correct the wrong by proper deeds, she took no steps while he was alive. The case was heard upon pleadings and proofs in open court, and decree rendered for the complainant.

      Lombard & Hexf, for complainant.
    P. Henry Smyth (Alfred Allen and L. B. McArthur, of counsel), for defendants.
   ■ Grant, J.

(after stating the facts). It is conceded that the question is one solely of fact, viz., were these deeds delivered by complainant to her husband ? If they were not, she is entitled to the relief prayed for and granted. No testimony was produced on the part of the defendants, and the question must be determined upon the proofs made by her. It is conceded that her testimony as to the transaction is incompetent under the statute prohibiting her from testifying to matters equally within the knowledge of the deceased, and the court might with propriety, although this is a suit in equity, have refused to receive her testimony. We have not, therefore, read it.

One William C. Saunders was the conveyancer who drew the deeds in question. He testified that complainant and her husband came to him and stated:

“ That they had no heirs, and they wished the property' to go to the survivor in case of the death of either of them. That seemed to be the object, and to be finally done. They wanted it done, and fdr that reason I drew up the papers, and talked with them a good deal about some other cases I had had, and like questions coming up. *' * *
Q. I will ask you in what way it was arranged that, by making these deeds from her to him, it could operate so that the survivor could obtain the property.
“A. That was the final object to be attained by'making the deeds. They wanted to have the property put in such shape that, if either of them survived the other, the property should go to the survivor.
‘ ‘ Q. How were you going to accomplish that by making these deeds from her to him ?
“A. Well, that would be shown by the papers themselves.
Q. Perhaps you do not understand what I mean; as to what was to be done with these papers that she was going to make ?
“A. So far as that was concerned, that was a long time ago, and the talk I had at that time completed all I did about the matter.
Q. Well, I am not asking you what was done with them, but what was your instruction about what should be done with these deeds in order that, in case she should die first, that he would get the property ?
“A. Well, that part don’t appear in the writing, does it ?
Q. Well, I will ask you this,- — perhaps you don’t understand what I mean: Who was to keep these deeds, if anything was said about it ?
“A. Nothing said about it. * * * The main conversation was to have their property put in such shape to go to the surviving party. They had no heirs.”

This witness knew nothing more about the delivery of these deeds other than that they were signed, acknowledged, and witnessed in his presence; that both were present; and that the deeds were taken from his office, but whether by her or by him he does not know.

One Harry D. Cowan, who lived near Mr. and Mrs. Gardiner, testified:

Q. Did you have any talk with Mr. Gardiner during his lifetime in reference to his property ?
“A. I did; yes, sir. The first conversation I had with him was in the summer previous to his death. It would be the summer of 1899. I do not know where the conversation took place. I have had several conversations with him. I had several conversations with him in presence of the complainant. They both talked it over with me. We talked it over several times at their house. We visited back and forth. Mr. and Mrs. Gardiner carried on a milk business, and I used to go there almost every evening and get milk, and generally would stop and chat a few minutes every time I went over.
Q. .State what conversations you had with Mr. Gardiner concerning this property.
“A. If I remember correctly, the way the talk concerning this property oame around, they had asked me several times if I would draw them up some papers, and I told them I would; and they told me that they owned several pieces of property, — one down in Mason, and a 40 up in Mason county, up near Ludington, and the Grand Rapids property where they lived, — and that he wanted to convey the property over to Mrs. Gardiner. The first conversation I had, as near as I can recollect, was the latter part of August or first of September, 1899.
Q. I will ask you if, during the conversations you had with them, particularly with him, whether or not he told you anything about how this property came to stand in his name ?
“A. Yes.
Q. Go on, and state what he said to you about that.
“A. Why, he told me the property had formerly all been in her name, but that she had got sick, and thought she was going to die, and he would go and put the deeds on record. He said he got the deeds from the house where she had them. He said he took them and placed them upon record because she was going to die.
Q. Did he say anything to you whether or not she knew anything about it ?
“A. I do not remember whether he said that or whether she said it, but we did talk, — the three of us together.
Q. Was that in his presence whatever was said ?
“A. Oh, yes.
Q. And was anything said at that time as to when she found it out ?
“A. She said she did not find it out until some little time after, — until she got better.
Q. Did he make any objections to that statement, or any reply to it, — deny it in any way?
“A. No. He mentioned several times afterwards after that the same fact.
Q. In these conversations afterwards did he tell you whether she knew .he was going to do that ?
“A. No; or, yes. He told me that down to the office several times. The last appointment he made with me to draw the deeds he told me about recording the deeds when she did not know it. The deeds which he recorded were delivered to me when I drew the other deeds, for the purpose of furnishing data from which to draft the other deeds. I drafted five or six deeds — I forget the number — ■ from him to her.
Q. I call your attention to these three deeds, and ask if these were the ones that were delivered to you from which to draft the deeds you were to make ?
“A. I should say so. I finally delivered them either to you or the administrator.
Q. I call your attention to these documents, and will ask you if those are the deeds you drafted for Mr. Gardiner ?
“A. Yes, sir. They were dated January, 1900.
Q. Do they have the year in the date ?
“A. 1900.
Q. And the month ?
“A. January. * * *
Q. What was done, after you drafted those deeds, with reference to having them executed ?
“A. I received word one morning that Mr. Gardiner was sick, and wanted to see me. In the morning I went over there. I found, I think, he was in bed. I do not think he had gotten up yet. He told me he wanted me to draw those deeds up that he had spoken to me about before, and when I came up from the office to bring them over, and he wanted to sign them. That was the day before he died. In the evening I went home, and got my wife, and went over, and he was asleep. Mrs. Gardiner said to me, ‘Now, I do not think — he has been kind of restless all day — I do not think you had better wake him.’ She says, ‘Cannot you put this off until morning?’ I said, ‘Yes, if you want to.’ Anyway, we agreed to postpone it until morning, — the signing of the deeds. And I went again'in the morning, and he was asleep. I came again at noon, and he was dead. I had the deeds with me on each of these visits. They carried on a milk business. She was really the manager of the business. Mr. Gardiner drove the wagon, and she attended to the house business.”

On cross-examination he testified:

‘ ‘ He said he went and took them from where she had them, and had them registered. * * * He said it was really her property. * * * She stated in the presence of her husband [and the witness] that he took the deeds when she was sick, and put them on record, and that she did not know anything about it until after she got better; and he did not deny the statement.”

It appears from the testimony of one other witness that Mr. Gardiner, in the early summer of 1899, wanted to fix the property so that it would go to the survivor, and asked how it could be done.

It is contended by counsel for defendants that the testimony of the conveyancer, Saunders, shows an actual delivery of the deeds. "We cannot concur in this view. Deeds are often drawn; signed, acknowledged, and witnessed, and taken away from the office of the conveyancer, without delivery. The statement “Signed, sealed, and delivered in the presence of,” above the signatures of the witnesses, does not necessarily imply an actual delivery. Delivery takes place when the deed, either actually or constructively by record, is placed beyond the control of the grantor. In determining this question of fact, the purpose of the grantor and grantee in making the deeds is an important factor. From the testimony of Saunders it conclusively appears that the sole purpose of these deeds was to place this property so that it would go to the survivor. If the deeds were not delivered, and remained in her possession, and he died first, the title remained in het. If she died first, and he recorded the deeds, the title would be good, unless her heirs saw fit to test their validity on the ground of nondelivery. We think a fair inference from all the evidence is that the deeds were retained by her in her possession; that they were not delivered, and were not to be delivered until her death; that he, without her knowledge or consent, took them from her possession when she was seriously ill, and recorded them; and that he intended to correct the wrong by the execution of deeds to her, and thus give her the title upon record, as well as the title in fact.

Decree is affirmed, with costs.

The other Justices concurred.


text:
    GATES v. CITY OF GRAND RAPIDS.
    1. Equity Practice — Hearing—Bill and Answer.
    Where a case is heard upon, bill and answer, the allegations of the answer must be taken as true. Chancery Rule 10.

      2. Municipal Corporations — Street Improvements — Sewers.
    Under the charter of the city of Grand Rapids, a storm-water sewer may be constructed under proceedings for grading and graveling a street, where it is expressly provided for in the proceedings of the council, and is also necessary to the proper' construction and preservation of the street.
    3. Taxes — Public Improvements — Laches.
    Parties who know that public improvements are being made, and do not avail themselves'of the statutory provisions affording them an opportunity to object to the proceedings, cannot afterwards have such proceedings set aside in the courts for mere irregularities.

      Appeal from superior court of Grand Rapids; Newnham, J.
    Submitted June 9, 1903.
    (Docket No. 50.)
    Decided July 8, 1903.
    Bill by Carrie Gates and others against the city of Grand Rapids to restrain the collection of certain taxes. From a decree for complainants, defendant appeals.
    Reversed.

      S. Wesselius (Holmes & Holmes, of counsel), for complainants.

      Moses Taggart (Taggart & Taggart, of counsel), for defendant.
   Grant, J.

Complainants, 19 in number, filed this bill to enjoin the city of Grand Rapids from collecting taxes assessed against their lands for improvements made -upon Grandville avenue, a public street of said city. The resolution authorizing the improvement reads as follows:

“That the grading and graveling of Grandville avenue, a public street in the city of Grand Rapids, from the south line of Hall street, a public street in said city, to the easterly line of Clyde Park avenue, a public street in said city, including the construction of the necessary vertical stone curbing and storm-water seiuer in said described portion of said Grandville avenue, and also including the construction of the necessary bridges, culverts, brick-paved gutters, cross-walks, manholes, catch-basins, approaches, and cesspools in said portion of said Grandville avenue, is a necessary public improvement; and be it further resolved, that the expense of said public improvement shall, pursuant to title 5 of the charter of said city, be defrayed by assessments payable in five equal annual installments, in the manner in said title 5 provided for.”

Proceedings prior to and subsequent to the adoption of the resolution were taken, a contract for the improvement let, the improvement made, the assessment district established, and the taxes levied according to benefits received. The case was heard upon bill and answer. The allegations of the answer must, therefore, be taken as true. Chancery Rule 10; Fields v. Highway Com'r, 102 Mich. 449 (60 N. W. 1048).

Complainants attack the validity of the proceedings under Peck v. City of Grand Rapids, 125 Mich. 416 (84 N. W. 614), wherein we held that the city had no power, under its charter, to construct a sewer for general purposes under cover of a street improvement, but that the provisions of the charter must be followed in regard to the construction of sewers. In that case the resolution and proceedings of the council were silent as to the construction of a sewer. In this the resolution expressly provides for the construction of a “storm” sewer. The answer and the affidavit of the city engineer show that this storm sewer was constructed, and intended to be constructed, for the sole purpose of carrying off the surface water, and that it was absolutely essential to the proper construction and preservation of the street. The resolution was notice that the sewer was to be constructed as a part of the improvement, and for the purpose of properly constructing and protecting the highway. The entire cost of the improvement was $10,943, of which the cost of the sewer was $512. This sewer extended over only about 500 feet of the improvement. According to the answer, it was not necessary to be constructed along the rest of the street; thus showing that it was not intended as a general sewer for the use of adjoining properties, but designed wholly for the benefit of the highway. According to the answer, this so-called storm sewer is no more than a covered drain to carry away the water from the surface. Cone v. City of Hartford, 28 Conn. 363. It is not a sewer, the con-; struction of which was held invalid in Peck v. City of Grand Rapids, supra.

It further appears from the answer that only 5 of the 19 complainants appealed to the common council from the proceedings, and the sole objection made by them on that appeal was that the several assessments were not equal according to benefits. This appeal was examined by the council, and ruled against the appellants. No other steps were taken by any of these complainants to test the validity of the proceedings until the work had been completed. Under many decisions of this court, their laches defeats them. The law does not permit parties to stand by in silence, see public improvements made, and then appeal to the courts to set them aside for irregularities. Byram v. City of Detroit, 50 Mich. 56 (12 N. W. 912, 14 N. W. 698); Atwell v. Barnes, 109 Mich. 10 (66 N. W. 583); Brown v. City of Grand Rapids, 83 Mich. 101 (47 N. W. 117); Moore v. McIntyre, 110 Mich. 237 (68 N. W. 130). Many other cases will be found cited in these.

Decree reversed, and bill dismissed, with costs of both •courts.

The other Justices concurred.


text:
    VANATTER v. MARQUARDT.
    Land Contracts — Forfeiture—Infants—Recovery of Payments.
    Where the vendor in a land contract declares the contract forfeited for nonpayment, and obtains possession of the land, the vendee, who is a minor, may sue at once to recover his payments, less the value of the use of the land; it is not necessary to wait until he becomes of age to repudiate the contract.
    Error to Macomb; Tucker, J.
    Submitted June 12, 1903.
    (Docket No. 157.)
    Decided July 8, 1903.

      Assumpsit by Frederick A. Vanatter, by next friend, against William Marquardt, to recover money paid upon a land contract. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    This case was tried before the court without a jury, and a finding of facts and law made. On May 8, 1899, defendant made a contract with the plaintiff to sell him a lot of land in the city of Mt. Clemens for $250, — $5 down, and balance payable on or before 10 years, with interest at (> per cent., payable semi-annually; plaintiff to pay the taxes and assessments, ordinary and extraordinary. Upon payment, defendant agreed to execute a proper deed. Upon failure to make any payment, defendant had the right to> declare the contract void, and retain what had been paid upon it. Plaintiff was 14 years old; lived at home. His father was poor, and was in need of the earnings of his son, who worked as a printer, receiving $2.50 a week. The boy had no means. The contract was made without the knowledge or assent of his father. The boy had paid $24.55.. Upon failure to make a payment, defendant served him a notice declaring the contract void, and his interest in the lot forfeited, unless he paid the amount within 10 days. The plaintiff thereupon instituted this suit to recover the amount he had paid. The court deducted the value of the use of the lot during the time it was occupied by the plaintiff from the amount paid, and rendered judgment for plaintiff for $16.55. Plaintiff obtained judgment in both the justice and circuit courts.

      Silas B. Spier, for appellant.

      Martin Crocker, for appellee.
   Grant, J.

(after stating the facts). Counsel for defendant, in his brief, contends that plaintiff, being a minor, must stand by his contract until he becomes of age, and then he may ratify or repudiate it. If this be so, it must follow that defendant could not rescind the contract for nonperformance. He certainly could not sue the minor and compel him to pay, or enforce action at law or in equity which the minor has the legal right to afterwards repudiate. Defendant concedes he has made a contract voidable at the option of the plaintiff, but now seeks either to compel payment or a forfeiture of the contract. According to his own theory, the minor is entitled to exercise his choice of ratification or rejection after he becomes of age. If this be so, the defendant has made a contract which must stand in abeyance until the time arrives when the minor can legally bind himself by his action. To hold that a minor must pay according to the terms of his voidable contract, obtain a deed, and then repudiate the transaction after he becomes of age, tender back the deed, and sue to recover the purchase price, would be little short of absurdity. Defendant has chosen to annul the contract, and must accept the result of his own deliberate action. Plaintiff’s counsel, in his brief, states that plaintiff, upon receiving notice of the forfeiture, abandoned the land. While there does not appear to be any finding of this fact, it is not denied by counsel for the appellant. The only question, therefore, is, Can plaintiff maintain an action to recover what he has paid ? According to his own theory, defendant has relied upon his right to forfeit the contract, has forfeited it, and either has recovered possession of the land or is entitled to it, and now seeks to retain what the minor has paid on the contract. He is, therefore, in the wrong, and cannot retain the benefit of his own wrongdoing as against an infant. He has received payment for the use of' his land, and this is all to which he is entitled, either in law or equity. Davis v. Strobridge, 44 Mich. 157 (6 N. W. 205). If the plaintiff himself had been the moving party to repudiate the contract, and had then sought to recover the amount paid, a different and important question would be presented, which we need not discuss.

Judgment affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    ROSE v. COMMON COUNCIL OF ANN ARBOR.
    Intoxicating Liquors — Approval of Bond — Mandamus.
    Where the legislature prohibited the sale of intoxicating liquors within a certain portion of a city after relator’s application to the common council for the approval of a bond for the sale of liquors within such district, mandamus to compel the council to approve such bond was denied.

      Certiorari to Washtenaw; Kinne, J.
    Submitted July 8, 1903.
    (Calendar No. 19,988.)
    Decided July 8, 1903.

      Mandamus by Joseph L. Rose to compel the common council of the city of Ann Arbor to approve a liquor bond. From an order granting the writ, respondent brings certiorari.

    Reversed.

      John W. Bennett, for relator.

      Thomas D. Kearney, for respondent.
   Per Curiam.

The question involved in this suit is respondent’s authority to pass an ordinance forbidding the sale of intoxicating liquors in a certain section of the city of Ann Arbor. Since this suit was brought to this court, the legislature, by Act No. 543, Local Acts 1903, has prohibited such sales in that section. There is, therefore, no occasion to determine what relator’s rights were under the former law. Preferred Tontine Mercantile Co. v. Secretary of State, 133 Mich. 395 (95 N. W. 417).

The case will be remanded, to enable respondent to procure in the lower court a vacation of the order complained of. No costs will be allowed.