author: Grant, C. J.

text:
    MUNTON v. RUTHERFORD.
    1. Partnership — Estoppel-t-Evidence—Former Suit.
    Where two persons are sued as partners, an estoppel to deny the partnership is not shown by evidence that the defendant who seeks to deny it was joined as a co-defendant in a suit against her alleged copartner on motion of the attorney who represented the original defendant in that suit, although he appears for the contesting defendant in the later suit, where it is clear that such defendant knew nothing of the former suit, and never authorized or ratified the attorney’s action.
    2. Same — Newspaper Item — Failure to Deny.
    Nor is an estoppel shown by evidence that the contesting defendant failed to publish a denial of a news item appearing in a trade paper crediting her with being a member of the partnership, in the absence of any proof that she was shown the article, assented to it, and that credit was given on the strength of such assent.
    3. Same — Trade-Name—Firm Style.
    The mere fact that one of two persons charged as copartners did business under the trade-name “ B. & Co.” is not of itself, and standing alone, evidence of the existence of a partnership.
    Error to Kent; Adsit, J.
    Submitted June 8, 1899.
    Decided September 27, 1899.

      Assumpsit by John W. Munton against Martha C. Rutherford and Charles M. Beckwith, alleged copartners as Charles M. Beckwith & Co., for goods sold and delivered. From a judgment for plaintiff, defendant Rutherford brings error.
    Reversed.
    Plaintiff, a grain dealer, residing at Morgan, Mich., sold a car load of rye to Charles M. Beckwith & Co. for $235.90, and the sale was made with Mr. Beckwith exclusively. Beckwith failed to pay, and plaintiff sued Beck-with and Mrs. Rutherford as partners, and recovered verdict and judgment. The case was submitted to the jury upon two theories: (1) That Mrs. Rutherford was an actual partner; and (3) that, if she were not, yet she had knowingly permitted herself to be held out as a partner, and was therefore estopped to deny her liability as partner. Beckwith admitted his liability, elected not to appeal, and consented to an order permitting appellant to prosecute this writ of error separately. Mrs. Rutherford denied the partnership, and gave testimony tending to show that she was only a creditor of Mr. Beckwith, having loaned him $3,000. Plaintiff gave evidence tending to show admissions by her that she was a partner.

      McGarry & Belden, for appellant.

      Fits Gerald & Barry {Francis A. Btace, of counsel), for appellee.
   Grant, C. J.

{after stating the facts). 1. Plaintiff introduced in evidence the record of a suit brought in justice’s court by one Comstock against defendant Beck-with. Mr. McGarry, one of the attorneys for appellant, appeared for the defendant in that suit, and Mr. Clapper-ton appeared for the plaintiff. Mr. McGarry raised the point that Mrs. Rutherford should have been made a co-defendant. By stipulation, she was made a co-defendant. This testimony was introduced under objection and exception. Mrs. Rutherford had no knowledge of that suit. She did not know Mr. McGarry, had not authorized him or any One else to appear for her, and first learned about it on the trial of this cause. This testimony was incompetent, and should have been excluded. ' It was not an admission by her, and could not be considered as evidence of an estoppel until; she had knowledge of and had ratified it. |

3. Mr. Beckwith; had been in the employ of one M. L. Sweet, who had been doing business under the name of M. L. Sweet & Co\ He left Mr. Sweet’s employ to enter the business of Challes M. Beckwith & Co. On February 12, 1896, the following item appeared in the Michigan Tradesman, a newspaper published in Grand Rapids, where the defendants resided:

“Charles Beckwith, who has managed the grain and hay business of M. L. Sweet & Co. since the death of the late D. M. Rutherford, has concluded to embark in the same business on his own account, having formed a co-partnership with Mrs. D. M. Rutherford for that purpose. Mr. Beckwith is a gentleman of experience and ability, and will undoubtedly meet with the full measure of success.”

Afterwards Mrs. Rutherford was informed of this article, but did not see it. She asked Mr. Beckwith to contradict it. It was not contradicted in the paper, but Mr. Beckwith issued a circular, which he testified he sent out to the trade in general, which circular announced that he would continue to conduct business under the firm name of Charles M. Beckwith & Co. The publication of the above item, which was merely an item of news, was not authorized by Mrs. Rutherford, and there is no testimony that it was authorized by Mr. Beckwith. It was not an advertisement by the firm or any one else, and was without signature. The court instructed the jury as follows :

“ If you find that Mrs. Rutherford knew that her name had been mentioned in a commercial newspaper as associated with Mr. Beckwith, and composing the partnership of Charles M. Beckwith & Co., it was her duty, if she was not such partner, to see that a denial of such copartnership was promptly made, in unmistakable terms, and as fully as the publication of the partnership had been made. Failing to do this, she will be held to have acquiesced in such publication, and would be estopped from denying the existence of such copartnership, as against the plaintiff, provided he gave the firm of Charles M. Beck-with & Co. the credit of the liability in question in reliance upon the alleged facts of such holding jut, and failure on the part of defendant Rutherford to publicly deny the same.”

The instruction was erroneous. Mrs. Rutherford was under no legal or moral obligation to publish a denial of this newspaper story. Any one who saw fit to deal with Mr. Beckwith, relying on this item, did so at his peril. If she had been shown the article, had assented to it, and credit had been given her on the strength of such assent, the rule of estoppel would have applied. There being no evidence that she authorized or assented to it, there is no room for the application of the rule.

3. The court instructed the jury as follows:

“The fact that the business was carried on in the name of Charles M. Beckwith & Co. is -evidence tending to show that Charles M. Beckwith had a partner, and that partner would be liable for the debts of the firm, whether the name was disclosed or known to the plaintiff; or not at the time the debt was incurred. A copartnership firm cannot exist of one individual.”

This instruction was error. There is no statute in this State prohibiting an individual from carrying on business under a trade-name. Brennan v. Pardridge, 67 Mich. 449, 453; Robinson v. Magarity, 28 Ill. 423. Plaintiff himself testified that he understood that individuals sometimes carried on business in this manner. The use of this trade-name was therefore, of itself, and standing alone, no evidence of partnership, but was a circumstance to be considered in connection with other testimony.

Judgment reversed, and new trial ordered.

Moore and Long, JJ., concurred with Grant, C. J. Montgomery and Hooker, JJ., concurred in the result.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    YEISLEY v. BENNETT.
    , Land Contracts — Construction—Title to Crops.
    An owner of land contracted to convey it to a purchaser on payment of a certain sum, and by the terms of the contract it was agreed that the hay raised on a part thereof for certain designated years should be properly harvested by the purchaser and delivered to the vendor, he to take it at the current market value, and credit it on the purchase price, and the purchaser to have possession of the land. Held, that the vendor had title to the hay grown on the designated land during the years stipulated.
    Error to Saginaw; Wilber, J.
    Submitted June 7, 1899.
    Decided September 27, 1899.
    Trover by Gilbert Yeisley against John H. Bennett. Prom a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Watson & Chapman, for appellant.

      Frank E. Emerick, for appellee.
   Moore, J.

Plaintiff brought suit in trover in justice’s court. The case was appealed to the circuit court. The plaintiff appeals from a judgment rendered in the case, which was entered by direction of the circuit judge.

In March, 1896, Mr. Burrows made a contract with plaintiff to sell him a piece of land, and to execute to him a deed of it upon certain conditions. Those in relation to payment were that plaintiff should assume the payment of a mortgage which was upon the land, and pay the further sum of $900, as follows:

“ One hundred dollars on the delivery of these presents, the receipt of which is hereby acknowledged; all the wheat and one-half of the straw raised in the year 1896 on the twenty-six acres of land now in wheat on the aforesaid southeast one-quarter of the southeast one-quarter of section twenty-two; all the hay raised on said twenty-six acres of land in the years 1897 and 1898,— said wheat, •straw, and hay to be properly cared for, harvested, and cured by the said second party, and delivered to said first party at the village of Chesaning, Michigan, the wheat at ■threshing time, and the hay as soon as suitable for baling. Said first party to take said wheat, straw, and hay at the then market price, and from tho same pay the interest on the aforesaid mortgage for the then current year, and apply the balance on tho amount then remaining unpaid on this contract,” etc.

The wheat grown on the land in 1896 was delivered to Mr. Burrows, and the avails thereof applied as agreed in the contract. In 1897, Mr. Yeisley conceived the idea that he did not have to deliver the hay to Mr. Burrows, but might himself sell it and put the money in his pocket. “I had no intention of delivering that hay to Mr. Burrows at Chesaning under that contract after it was baled. I said I didn’t have to.” He told Mr. Burrows and his agent, Mr. Mudge, it was his hay, and he intended to keep it. He cut the hay, and removed it to the Palmer place, which he had rented, about 60 rods away, and stacked it. About three weeks later, Mr. Burrows sued out a writ of replevin, which was served by Mr. Bennett, the defendant, who was an officer. The hay was sold by Mr. Burrows for $132.50, which amount was indorsed upon the contract. The plaintiff then sued Mr. Bennett in trover for a conversion of the hay, and the circuit judge, as before stated, directed a verdict in favor of defendant.

Counsel urge that, before the replevin case could be brought, Mr. Burrows should have made a demand for the property; that the contract was an executory one, in which there were conditions precedent to the transference of title, and a verdict should have been directed in favor of plaintiff. Counsel mistake the issue. This is not a trial of the replevin case. What Mr. Bennett did must be regarded as the act of Mr. Burrows. The title to the land remained in Mr. Burrows, and was to remain there until certain things were done. Among them was that the hay grown upon the land should be harvested and cured by the plaintiff, and properly cared for, and delivered to Mr. Burrows as soon as it was suitable for baling. Mr. Burrows was to receive it at the market price, and apply the proceeds first to the payment of the interest on the mortgage, and the balance on the contract. There was no question about what was to be delivered to Mr. Burrows. It was all the hay which should be grown upon lands that were definitely described and well known, the title to which was yet in him; and a fair construction is that the language put in the contract was used to insure the application of the value of the product to the payment of the sum which Mr. Yeisley had agreed to pay.

As we haye already seen, when the hay was suitable for baling, instead of delivering it to Mr. Burrows, Mr. Yeisley undertook to convert it to his own use, which he had no right to do. 'The title to the land was in ,Mr. Burrows, and ordinarily the title to the product follows the title to the land. Here the parties undertook, as I think, to provide that the title to the hay should not pass to Mr. Yeisley, but that he should care for it for Mr. Burrows, and, as soon as it was suitable for baling, should deliver it to him.

The circuit judge made a right disposition of the case. Judgment is affirmed.

The other Justices concurred.


text:
    KAEMPFER v. LINDSAY.
    Principal and Agent — Discretionary Powers — Question for Jury.
    In an action for a deficiency arising under a contract whereby plaintiff agreed to use his best efforts, for a term of three years, to introduce to the trade an article of defendant’s manufacture, and defendant agreed to pay to plaintiff a stated sum monthly for his services, and an equal sum for advertising, to he expended as he (plaintiff) might deem most advantageous, and to pay the deficiency in case the sales for any month should he insufficient to cover the allowance for services and advertising, it was a proper question for the jury, it appearing that plaintiff, during the month in which the deficiency arose, expended very little for advertising, whether he limited such expenditure in the honest exercise of the discretion which the contract reposed in him.
    Error to Wayne; Lillibridge, J.
    Submitted June 9, 1899.
    Decided September 27, 1899.

      Assumpsit by Jacob Kaempfer against Archibald G. Lindsay upon a contract for services. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Wilkinson, Post & Oxtoby, for appellant.

      Hatch, Hatch & Chapman, for appellee.
   Moore, J.

In February, 1897, defendant, a resident of Detroit, was a manufacturer of blankets called the “Fiber-Cloth Blanket.” It was a new article, which the defendant wished to introduce to the trade, and he made an arrangement with the plaintiff, who is a resident of New York, which was as follows:

‘ ‘ This agreement, made this eighteenth day of February, 1897, between the Sable Fiber Company, of Detroit, Michigan, party of the first part, and J. Kaempfer, of the city, county, and State of New York, party of the second part, witnesseth: That the said party of the first part appoints the said party of the second part its selling agent for fiber-cloth blankets in the city of New York, including Brooklyn, Jersey City, and vicinities. That the said party of the first part agrees to furnish said party of the second part with its fiber-cloth blankets in such quantities as he may require and call for, not exceeding, however, three hundred per day. That the said party of the first part agrees to pay the said party of the second part the sum of one hundred dollars per month for advertising, and one hundred dollars per month for store rent and personal services of any and all kinds; the amount paid for advertising to be expended by the party of the second part as he may deem most advantageous for the sale of the blankets. The said party of the first part agrees to bill the fiber-cloth blankets to the said party of the second part at forty cents each, f. o. b. cars New York, including cartage, and to fill his orders at the same price, and at the same rate of freight, to any point in the United States where the territory is not occupied.
“The said party of the second part agrees to receive from the said party of the first part its fiber-cloth blankets as above set forth, and, as its selling agent in the territory named, to use his best endeavors to introduce the same to the public through his stores in New York, and through all appropriate channels at his command, to sell as many goods as possible, and to maintain a minimum retail price of not less than seventy-five cents each. The party of the second part will make a statement at close of each month, and send same to the said party of the first part at Detroit, Michigan, so that it may reach said party of the first part by the fifteenth day of the month succeeding that for which statement is made, and accompanying said statement with check for amount due on sales of said month. Should, however, .the sales of said month, or of any month, not be sufficient to pay the amount of two hundred dollars per month hereinbefore provided for, then the said party of the second part shall draw on the said party of the first part for the amount of deficiency.
‘ ‘ This agreement shall be for the term of three years from the first day of March, 1897, ending the twenty-eighth day of February, 1900.
“On and after March first, 1898, the said party of the second part agrees to take from the party of the first part, and pay for same at the price named and in the manner herein provided for, five hundred blankets per month as a minimum quantity. In case the said party of the second part does not take the said minimum quantity of five hundred blankets per month after the first day of March, 1898, then this agreement shall cease and come to an end, and become canceled, null, and void.
427

“ It is the intention of the parties to this agreement to introduce to the public the fibre-cloth blanket, to. promote and encourage its sale, and each agrees to work to that end, mutually helping each other.”

After the making of the contract, the parties entered upon its execution. The sales of March, 1897, were not sufficient in amount to pay plaintiff $100 for services and store rent and $100 for advertising. About the middle of April, Mr. Kaempfer drew upon Mr. Lindsay for the deficiency for the month of March, and his draft was honored. May 1st he made a statement for the month of April, which showed, after crediting the sales, a deficiency of $170.20, for which amount he drew on Mr. Lindsay, and his draft was refused. He made a like statement the middle of June for the month of May, showing a deficiency of $181.18, and drew upon Mr. Lindsay. His draft was again refused. It is to recover these amounts that this suit was brought.

Upon the trial plaintiff claimed he was entitled to the full amount of $100 for advertising each month, whether he actually spent it that month or not, he expecting to spend it later, when the season made it desirable to expend more than $100 in a given month. The court held he could not receive in any month for advertising more than he had actually expended in that month. Under this ruling, the plaintiff admitted he could not recover any amount for advertising in this action, because of the amount paid him in April. A verdict was rendered for the plaintiff of $163.46, which was for services and store rent, less the credits for goods sold. The case is brought here by the defendant.

The assignments of error relate to the admission of testimony contained in the deposition of the plaintiff, and to the construction given to the contract by the court.

The testimony of the plaintiff was taken upon direct and cross interrogatories. It is claimed that, in answer to the direct interrogatories, the plaintiff swore to a conclusion, and also gave testimony based upon hearsay; and that, in answer to the cross interrogatories, he volunteered testimony, and deprived the defendant of the benefit of cross-examination. I think these contentions are true; but the other Justices are all of the opinion that the testimony improperly admitted was not so material and prejudicial as to make its admission reversible error.

Defendant claims the plaintiff was just as much bound under the contract to advertise substantially to the amount of $100 each month as he was to furnish a store and perform other services, and, inasmuch as he had spent but little money in April for advertising, and none in May, the court was not justified in submitting to the jury the question whether the plaintiff had kept his contract. It is the claim of the plaintiff that, under the contract, a large discretion was reposed in him about the manner and the amount of the advertising which he was to do; that it would not have been a proper exercise of his discretion to ' spend as much money in April and May advertising the goods, the market for which would not be until cold weather set in, as to spend large sums later. He asserts he acted in good faith, using his best judgment in the advertising, and would have done more in that direction if defendant had not himself broken the contract by refusing to honor his drafts.

The contract was for three years. Nothing was said as to how the advertising should be done, — whether by means of circulars and cards, or by the insertion of advertisements in magazines and newspapers, — but a large discretion was reposed in the plaintiff.

“The amount paid for advertising to be expended by the party of the second part as he may deem most advantageous for the sale of the blankets.”

The contract provides:

“ In case the said party of the second part does not take the said minimum quantity of five hundred blankets per month after the first day of March, 1898, then this agreement shall cease and come to an end, and become canceled, null, and void.”

It also provides that each of the parties shall work and do what he can to promote the selling of the blankets, mutually helping each other; but it does not provide that, if plaintiff did not expend for advertising in. any one month just $100, the defendant could cancel the contract, and such interpretation ought not to be put upon it. By its terms it became the duty of the plaintiff to expend such sums of money, not exceeding the amount placed at his disposal, for advertising, as he in good faith deemed most advantageous for the sale of the blankets. ‘ When the money was so expended, if the sales were not sufficient to reimburse the plaintiff, it was the duty of the defendant, upon receipt of the statement provided for in the contract, to pay the deficiency. The court submitted the question in the following language:

“But the defense in this case is that Kaempfer did not exercise good faith in advertising and in placing these goods upon the market. The defense is that Kaempfer refused or neglected to exercise the discretion which the contract vested in him for advertising and in placing these goods upon the market; and the defense is that, since Kaempfer refused and neglected to go on and advertise, and exercise the discretion which the contract reposed in him, and thereby violated the contract in so far as the advertising and the placing of the goods on the market is concerned, therefore the defendant is excused from the payment of the $100 a month, payable to him for personal services and storage. Novi, that is the principal fact which is to be submitted to you in this case. The- contract is one entire contract; it is not separated; the two features of the contract must be construed together. It was Kaempfer’s duty, under this contract, to go on and exercise a reasonable discretion in advertising and placing these goods upon the market; to do precisely what this contract says,— to use his best endeavors to introduce the same.to the public through his stores in New York, and through all proper channels at his command, and to exercise a reasonable discretion in the advertising, —which he did. Now, it is claimed on the part of the plaintiff that he did. It is claimed, and you have heard the deposition of Kaempfer read to you, as to the advertising, that he did perform the terms of the contract, viz., that he used every reasonable means which were within his reach to introduce these new goods to the trade, — got traveling men, put circulars in all his packages, displayed goods in the windows, and in all the different manners and forms the testimony shows that Kaempfer used to introduce these goods, and that he did perform the contract, and it is claimed on the part of the plaintiff that the discretion he used in the matter of advertising was proper and right, and in that respect he performed and fulfilled the terms of the contract.
“On the other hand, it is claimed that Kaempfer did not, and defendant’s reliance is largely upon what he claims was the failure of Kaempfer to advertise more extensively than he did; and his claim is that this was a new product, and that, in the exercise of the discretion the contract vested in him, he should have advertised more extensively than he did, and that his conduct, taking into consideration the amount of advertising he did, amounted to a refusal and neglect to perform that part of the contract. His claim is that plaintiff did not exercise the discretion of advertising which the contract reposed in him-, therefore he violated the contract, and defendant is excused from paying the claim for the month of April and the month of May. Now, that is the substance, the great and principal question of fact in this case, and that is what you have to decide. I want to say to you that this contract reposes a certain discretion in Kaempfer. You are not to put yourself in place of it, - but you may say whether Kaempfer exercised that discretion or not; if he did, you have nothing to do with it, nor have I. If he exercised the discretion he was responsible for, you cannot exercise your discretion; but you may say, in the light of the testimony in this case, whether he did exercise the discretion which the contract vested in him.”

We think this a proper interpretation of that feature of the 'contract, and that the court did not err in submitting the question as to its performance by the plaintiff to the jury.

Judgment is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    PEOPLE v. TOMPKINS.
    Criminal Law —Assault on Officer —Sufficiency of Information.
    An information charging respondent, in the language of the statute (3 Comp. Laws 1897, § 11327). with “knowingly and willfully ” assaulting one C., a village treasurer, while the said C. was attempting to execute a tax warrant, sufficiently alleges that respondent knew that the person assaulted was an officer, and knew that he was at the time in the discharge of his duty.
    Exceptions before judgment from Iosco; Simpson, J.
    Submitted June 22, 1899.
    Decided September 27, 1899.
    George Tompkins was convicted of assaulting an officer.
    Reversed.
    The following is a copy of the information:
    “State oe Michigan, )

    The Circuit Court for the County > ss.
    of Iosco. )
    “Iosco County — ss.
    “Albert E. Sharpe, prosecuting attorney for the county of Iosco aforesaid, for and in behalf of the people of'the State of Michigan, comes into said court in the August term thereof, A. D. 1898, and gives it here to understand and be informed that George Tompkins and James Hamilton, of the township of Oscoda, in the county of Iosco and State of Michigan, heretofore, to wit, on the 23d day of July, in the year one thousand eight hundred and ninety-eight, at the village of Oscoda, in said Iosco county, did then and there knowingly and willfully assault, beat, and wound George H. Cosgrove, while he, the said George H. Cosgrove, was attempting to serve and execute a warrant for the collection of taxes in and for the said village of Oscoda, in said county, said warrant having been made and executed and attached to the tax roll of said village of Oscoda by Vernon E. Rix, president of said village, on the 20th day of May, 1898, and, by authority of the common council of said village, extended by said president, Vernon E. Rix, on tbe 8th day of July, 1898, for thirty days thereafter, and the said George H. Gosgrove being then and there the village treasurer, of said village of Oscoda, duly elected and qualified as such, it being then and there his duty to levy and collect the village taxes in said village under said warrant, and said tax roll of said village of Oscoda being then and there in the hands of said George H. Cosgrove for collection, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the people of the State of Michigan.
    “Albert E. Sharpe,
    “ Prosecuting Attorney for the County of Iosco.”

      Main J. Connine and Crane & Crane, for appellant.

      Albert E. Sharpe, Prosecuting Attorney, for the people.
   Hooker, J.

The defendant asks that the information in this cause be held insufficient, upon the ground that it fails to allege that he knew that the person assaulted was an officer, or that he knew that he was at the time in the discharge of his duty. It is contended that it states only that the assault was willfully and knowingly made. It seems to me that this is hypercritical, and, moreover, that it is not an accurate interpretation of the language. The law attempts to punish an assault upon an officer while in the discharge of his duty by a penalty more severe than that imposed for other assaults. It requires that the offense shall be committed knowingly and willfully. If an assault is willful, it is intentional; and, if intentional, it must Be made knowingly. If, therefore, we are to apply these words as we are asked to do, the word “knowingly” is superfluous. There is no doubt that a knowledge that the person assaulted is an officer in the discharge of his duty was made an element of the offense, and that the insertion of the word “ knowingly ” in the statute had reference to this, and not to the assault, which could not be willful unless made intentionally, and therefore knowingly. Had this information stated that the defendant willfully, with force and arms, assaulted A. B., knowing him, the said A. B., to be then and there an officer, etc., it would be held good. Instead of that, the exact order of language used in the statute (3 Comp. Laws 1897, § 11327) was followed, and, as it could have but one meaning, it was sufficient.

We think the conviction must be set aside upon the ground that hearsay evidence of the ownership of the property sought to be levied upon was admitted.

The conviction must be set aside, and a new trial ordered.

The other Justices concurred.


text:
    DIVINE v. BOARD OF TRUSTEES OF VILLAGE OF LAKEVIEW.
    Intoxicating Liquors — Village Trustees — Acceptance op Bond — Mandamus.
    The circuit court is without authority to require the board of trustees of a village, by mandamus, to approve a liquor bond rejected by them because, in the opinion of a majority of the board, one of the proposed sureties was not financially qualified to act as bondsman, where it does not affirmatively appear that the board acted arbitrarily and not in good faith.

      Certiorari to Montcalm; Davis, J.
    Submitted September 12, 1899.
    Decided September 27, 1899.

      Mandamus by Monroe B. Divine to compel the board of trustees of the village of Lakeview to approve a liquor bond. From an order granting the writ, respondents bring certiorari.

    Reversed.

      George E. Nichols, for relator.

      Bussell A. Peake (Walker & Eitz Gerald and Myron H. Walker, of counsel), for respondents.
   Moore, J.

This is a proceeding in certiorari to review the action of the circuit court of Montcalm in granting a writ of mandamus directing the respondents to approve of the liquor bond of the relator. The relator is the keeper of an hotel at Lakeview, in which there is a bar where liquor is sold. In April, 1899, he presented to the respondents a liquor bond in the sum of $3,000, with Mr. Bale and Mr. Peterson as sureties. A motion was made to accept the bond. Three of the trustees voted affirmatively and three in the negative. The president of the village voted in the negative and the board refused to accept the bond. The relator then applied to the circuit court for a writ of mandamus to compel them to accept his bond. In his petition he claimed that the bond was in proper form, and was signed by a sufficient number of sureties, who were financially responsible, and that the majority of the trustees rejected the bond arbitrarily, and because they were elected upon the issue of no saloon, and because they were determined there should be no saloon in the village.

The respondents made a return to the order to show cause, in which they denied they had acted arbitrarily or capriciously, and asserted they had inquired into the sufficiency of the sureties to the bond, and rejected it because one of the sureties was not of sufficient financial ability to qualify as a surety. This return was authorized to be made, and was the return of the three trustees and the president of the board, who had voted to reject the bond. Upon the hearing before the court, the attorney for the relator was, against the protest of the respondents, allowed to file his affidavit as to what occurred before the board, and also the statement of the three trustees who voted to approve the bond, in which statement they admitted the truth of the statements contained in the petition of the relator. The court made an order, in part, as follows: “After hearing read the return of a majority of the board of trustees of said village of Lakeview, and also the return of the minority of the said board of trustees, and the court not being satisfied, from the return made and affidavits filed with said return, that the majority of the board of trustees did not act arbitrarily in rejecting said bond and refusing to approve the same, it is ordered that” the board meet again, and either approve or reject the bond. The board again met. The relator appeared before them with counsel. The village attorney appeared upon the part of the village. Affidavits were filed tending to show that the property of Mr. Peterson was sufficient to qualify him to act as bondsman. The affidavits of three of the trustees and the president of the village, to the effect that they had personally examined the property and placing their estimate of its value upon it, were also read. Their affidavits would indicate that Mr. Peterson was not financially qualified to be a surety. Affidavits were also filed by two of the trustees that surety Bale, who owned the Decker House, the hotel where the bar was kept, had stated to them that he conveyed certain of the property scheduled by Peterson as assets to him to enable him to become surety on the bond. It also was made to appear that all the property assessed to Peterson in 1899 was assessed at $725, and that the property conveyed by Bale to Peterson was still assessed to Bale. Affidavits were also filed tending to show that, including the property conveyed to Peterson, he was then not of sufficient financial worth to enable him to become surety. The attorney for the relator offered in evidence the deeds made to Mr. Peterson. They were not received in evidence, the trustees saying there was no question about Mr. Peterson having the deeds, but their validity was questioned. An opportunity was given to Mr. Bale to make proof as to why the conveyance to Mr. Peterson was made, but no proof was offered by him or Mr. Peterson upon that subject. Some other things occurred before the board which it is not necessary to mention here. The board then adopted a resolution reciting that, after considering all the evidence offered as to the sufficiency and insufficiency of the bond, they rejected it for the reason that one of the sureties was not financially a sufficient surety thereon.

At the second hearing before the board there was a clerk and a stenographer, who took minutes of what occurred. The case was again taken up by the circuit judge. In addition to the return made by the respondents, consisting of a majority of the trustees, there were returned the minutes kept by the clerk and stenographer of what occurred at the second hearing, and the return of two of the trustees, constituting the minority, and other affidavits, which had never been presented to the board of trustees. In the second answer of the respondents they again denied that they had acted arbitrarily or capriciously, and asserted they had acted in the utmost good faith; and that, conceding that Peterson was the bona fide owner of all the property conveyed to him by Bale, they did not believe he was worth $3,000 over and above his exemptions and incumbrances. The court found that, taking into consideration all the facts as shown by the affidavits and record, Mr. Peterson was sufficiently responsible, and that the board had acted arbitrarily, and directed that they approve the bond.

It is urged by the relator here that this court ought not in this proceeding to discredit the finding of the circuit judge. It is urged by the respondents that, in the absence of a framed issue, the return of the respondent in a mandamus case is conclusive, and the circuit judge had no right to consider anything outside of the return. In our view of the case, it is not necessary to spend any time upon either of those propositions. The statute does not confer upon the court the right to review the accuracy of the conclusion reached as to the financial standing of the sureties offered upon liquor bonds. It may determine whether or not the board has acted in good faith, or whether it has acted arbitrarily, in disapproving the bond. The court will not compel the approval of a bond unless it affirmatively appears the board has acted arbitrarily, and not in good faith. Parker v. Board of Trustees of Portland, 54 Mich. 308; Wolf son v. Township Board of Rubicon, 63 Mich. 49; Post v. Township Board of Sparta, 63 Mich. 323, 64 Mich. 597; McHenry v. Township Board of Chippewa, 65 Mich. 9; Palmer v. President, etc., of Hartford, 73 Mich. 96. In this case therecord shows there was a fair question as to whether the conveyances made to Peterson were not made for the purpose of enabling him to become surety, and when they had accomplished their purpose the property to be reconveyed. It also shows that, conceding he was the bona fide owner of the property deeded to him, men differed in their judgment as to whether or not he was of financial ability to act as bondsman. Each of these questions was for the solution of the board of trustees, and a majority of them say that they in good faith solved them against the claim of the relator. Under such circumstances, their action is not to be overturned because a minority of the trustees and the circuit judge think they came to a wrong conclusion.

The writ of mandamus should have been refused, and the relator’s petition dismissed; and it is so ordered.

The other Justices concurred.


text:
    MICHIGAN TRUST CO. v. LANSING LUMBER CO.

    1. Mortgages — Foreclosure—Orders Pendente Lite — Ajppeal —Res Judicata.
    A decision of the Supreme Court vacating an order of the circuit court, on foreclosure bill and answer, for the appointment of a receiver for defendant corporation and the issuance of an injunction pendente lite, is not an adjudication of the merits which may be relied upon in a subsequent proceeding as establishing that the corporation was not in default, and that the filing of the bill was an illegal interference with its business, releasing a surety on its bonds.
    2. Same — Surety—Liability for Deficiency.
    Where, on a bill to foreclose, the question of the personal liability of a surety for a deficiency is raised by the pleadings, the court may determine it in the original decree.
    3. Same — Expenses of Business — Payment by Trustee.
    Under a trust mortgage providing that the mortgagor, a corporation, should deposit all moneys received by it to the credit of-the trustee, who should pay over to it such amounts as should be necessary for interest, taxes, insurance, and expenses in the regular course of its business, the trustee cannot be required to pay over for expenses and interest any moneys except those so deposited.
    Appeal from Ingham; Person, J.
    Submitted April 21, 1899.
    Decided October 3, 1899.
    Bill by the Michigan Trust Company against the Lansing Lumber Company and Orlando M. Barnes to foreclose a trust mortgage. Prom a decree of foreclosure, but releasing defendant Barnes, complainant appeals.
    Defendant lumber company appeals from a final order denying its petition for an allowance for interest and expenses out of assets in the hands of the trustee.
    Affirmed as to foreclosure and denial of petition, and reversed as to release of defendant Bardes.

      Fletcher & Wanty, for complainant.

      R. A. 'Montgomery (.Bartlett Wiley, of counsel), for defendant lumber company.

      Russell G. Ostrander, for defendant Barnes.

       Rehearing (application of defendant Barnes) denied December 12, 1899.

   Hooker, J.

Some years ago there was a going concern known as the Lansing Lumber Company. It was indebted to a large amount, secured by negotiable paper, upon which defendant Orlando M. Barnes was an accommodation maker and indorser. In 1893 it became seriously involved, and on April 17th of that year gave mortgages on most of its property to Orlando M. Barnes to indemnify him. Subsequently, and about May 1, 1893, negotiations between it and its creditors, to which Orlando M. Barnes was a party, resulted in an arrangement whereby a 'trust deed or mortgage was given to the complainant to secure the payment of certain bonds issued to its creditors. Orlando M. Barnes guaranteed the payment of such bonds as were issued for debts upon which he was theretofore liable, and assigned his mortgages to the complainant. The bonds guaranteed by Barnes are called the “A Bonds,” and others “B Bonds.” The arrangement contemplated the continuation of the business by the Lansing Lumber Company, and the payment of its debts from its receipts. The following provisions were included in the trust deed:

“Said trustee shall exercise the duties of his office for the purposes of preserving the interests of the stockholders as well as of the bondholders.
“Said trustee shall have power, upon the failure of said company to provide sufficient means during any half year to pay the interest due at the end thereof, or within one month thereafter, at the request of a majority in interest of all the creditors secured hereby, to declare this mortgage due and payable at once, and proceed to foreclose the same.
“Said trustee, if at any time the business of said company is not profitable, or if the management thereof by the company is so wanting in economy, in the judgment of the trustee, as to endanger the security of the bondholders, may, if a majority in interest of said bondholders shall so request in writing, take possession of all the property, real and personal, of said company, and its entire business, and conduct the same in the ordinary way for the benefit of the parties in interest, paying the net income of said business, after the taxes upon the property, the insurance, and the expenses are paid, upon said bonds, until the principal and interest of said bonds are paid; or, upon taking possession as herein provided, if a majority in interest of the bondholders shall so request in writing, said trustee shall proceed to foreclose this mortgage.”

The trust deed was dated May 1, 1893, and on May 4, 1894, the bondholders served upon the trustee a request to take possession of the property and foreclose the mortgage, because the business was not profitable, and on June 8, 1894, the bill was filed. An order appointing a receiver and restraining the defendants was made by the circuit court. Upon appeal by Orlando M. Barnes this order was vacated, and the cause was remanded for further proceedings. Michigan Trust Co. v. Lansing Lumber Co., 103 Mich. 392. Proofs were taken, but we are not advised that the case ever went to hearing. Subsequently this bill was filed to foreclose the trust deed. A demurrer filed by the Lansing Lumber Company was overruled, and, an appeal being dismissed, the Lansing Lumber Company stipulated that a decree of foreclosure might be entered. Defendant Barnes having answered, the case was heard upon pleadings and proofs. Upon the hearing the circuit court decreed foreclosure, but found that the filing of the bill was such an interference with the business of the Lansing Lumber Company as to amount to a legal wrong, and that the surety was thereby released, and dismissed the bill as to Orlando M. Barnes. In the account of the complainant, interest on daily balances was credited, amounting to $6,050.50, and it charged for services $11,500. The decree allowed $5,900 for the services. Complainant has appealed, claiming that a personal decree for deficiency should have been entered against Mr. Barnes, and that reasonable compensation was not allowed for its services.

The learned circuit judge was of the opinion that the decree of this court vacating the order for a receiver was a final adjudication that the creditors had no just reason for causing this foreclosure proceeding to be instituted, and that such proceeding was an illegal interference with the business of the Lansing Lumber Company, which they should have permitted it to continue until there was a default, and that by such proceeding the surety was released. The merits of this question were not before this court upon the former hearing. The only question there raised was the propriety of an injunction and receivership pendente lite. It was disposed of upon the pleadings alone, and could not be considered final upon the merits, and it was not so considered by court or counsel, for they proceeded with the taking of proofs in the case. It was an open question upon the trial of the case, and in his opinion the court expressly says that, “so far as the Lansing Lumber Company is concerned, the default was satisfactorily proved.” We think his conclusion in that respect was justified by the testimony, and we also think, as we have already indicated, that the question was not res adjudieata as to Mr. Barnes. We merely held that, upon bill and answer, the order for a receiver and an injunction was improvidently made.

Inasmuch as the evidence shows that there was a default, it was complainant’s right to file the bill, and it follows that the surety was not thereby discharged. We need not discuss the legal question raised and argued upon the theory that the foreclosure was unwarranted, and express no opinion upon it. But see Union Trust Co. v. Detroit Motor Co., 117 Mich. 631.

In the opinion of the circuit judge some prominence is given to the question of the authority of the court to determine the liability of Mr. Barnes for a deficiency. That question was raised by the pleadings, and has been litigated by the parties, and we think the court’s view was-correct. Simons v. McDonnell, 120 Mich. 621; Miller v. Childs, Id. 639.

Another question is before the court upon appeal in this case. A petition made by the Lansing Lumber Company, verified upon the 9th day of September, 1898, is filed, alleging, among other things, that:

“ Said trust deed contained and contains a provision, in substance, that said complainant shall turn over to your petitioner, for the purpose of providing for.the disbursements, including the interest, taxes, insurance, and expenses of your petitioner in the regular course of its business, such amounts as were found from time to time to be necessaiy for that purpose during the continuance of the trust provided for in said deed. ”

It also states that there are outstanding debts amounting to several thousand dollars, incurred for current expenses and interest that accrued on the B bonds during the time that the Lansing Lumber Company conducted business. It is claimed that the complainant was bound to furnish money to pay these, but has refused, and the petition asks that it be required to pay to the petitioner a sufficient sum to pay the same. The court denied the petition by an order bearing date July 18, 1898. We suppose that there must be a mistake in the printed record in relation to these dates, as no question is raised over the apparent discrepancy.

The following are the provisions of the deed:

“All moneys received by said company during the continuance of said trust shall be deposited in some bank or banks to be selected by the trustee, the deposit to be to- the credit of said trustee. For the purpose of providing for the disbursements, including the interest, taxes, insurance, and expenses of said company in the regular course of its business, said trustee shall turn over to the said company such amounts as shall from time to time be necessary for that purpose: Provided, that the amount so in the hands of the company for current expenditures shall at no time exceed the sum of ten thousand dollars. The company shall preserve vouchers for all disbursements made by it. At the beginning of every month, and whenever it shall be necessary for the company to have further funds for the payment of expenses, it shall turn over to the trustee all the vouchers on hand, and account for all the money received by it since the last accounting. After a sufficient sum has been set aside by the trustee to pay the current expenses of the company and the interest on its bonds for the current half year, and after the debts which are liens upon the property are paid, all the surplus income of said company shall be applied to the payment and retirement of the bonds issued hereunder, and in the following order, viz.”

We are of the opinion that this deed does not require that the trustee should use moneys not received from the business to pay such expenses or interest on bonds. It contemplates such payment from earnings. The Lansing Lumber Company was a mortgagor in possession, with a light to sell mortgaged property in the course of business. Such sales would be binding upon the trustee, but persons giving credit would have no prior lien or claim upon the mortgaged property, as the deed did not authorize the Lansing Lumber Company to incur obligations binding upon the property. The deed contemplated payment of interest on the B bonds from the earnings of the Lansing Lumber Company, but we think there is nothing in the deed to justify the claim that the Lansing Lumber Company might require payment from the estate through itself. If the trustee holds property subject to a right of such bondholders, such right can be enforced by the court on application of the bondholders; but we think that the Lansing Lumber Company is not entitled to disburse the fund. It is said, and we do not discover that it is disputed, that no earnings ever came to the hands of complainant, for the reason that the Lansing Lumber Company never deposited money according to the provisions of the deed, but, on the contrary, used all moneys received by it. The complainant has therefore no fund from which it is authorized to pay such claims.

We are of the opinion that the determination of the circuit judge in relation to the compensation of the complainant should not be disturbed.

The decree of the circuit court will be reversed as to defendant Orlando M. Barnes, who is held liable for any deficiency upon the A bonds that may arise after the proceeds of the sale shall be applied on the amount of indebtedness upon the A bonds. In other respects it will be affirmed. The complainant will recover costs of this court.

The other Justices concurred.


author: Long, J.

text:
    EATON v. GLADWELL.
    1.Building Contract — Recovery on Quantum Meruit.
    While one is under no obligation to accept from the contractors a building which does not conform to the plans and specifications, having taken possession, he may be held liable on a quantum meruit.

    2.Same — Measure oe Recovery.
    In an action for recovery on a quantum meruit for the construction of a building which does not conform to the specifications, and cannot be made to without its entire demolition, and which is of less value than the one contracted for, the measure of recovery, where defendant has taken possession, is the value of the building so completed, not exceeding the contract price, less the damages defendant has sustained by plaintiff’s failure to perform his contract.
    3.Same — Damages.
    • In case the building contracted for exceeds in value the contract price, the measure of defendant’s damages would be the difference between the value of the building tendered and that contracted for, less the difference between the agreed price of the building contracted for and the value of the one tendered.
    4. Same — Loss of Rentals.
    Where the completion of a building is delayed by the contractors, the owner is entitled to recover as damages its rental value as it ought to have been completed from the time it should have been completed to the time it is completed and tendered.
    5. Same — Acceptance—Unreasonable Delay.
    Where the building tendered by contractors fails to conform to the plans and specifications, it becomes the duty of the person seasonably to decide whether he will accept or refuse it; and, having taken possession after delaying his decision for 13 months, he cannot recover from the contractors for deterioration or loss of rents during such period.
    Error to Wayne; Hosmer, J.
    Submitted May 4, 1899.
    Decided October 3, 1899.

      Assumpsit by Joseph W. Eaton and another against Thomas J. Q-ladwell to recover for the construction of a building. Erom a judgment for plaintiffs, defendant brings error.
    Reversed.

      Wilkinson, Post & Oxtoby, for appellant.

      T. E. Tarsney and W. G: Fitzpatrick, for appellees.
   Long, J.

It appears that December 15, 1892, the defendant entered into a written contract 'with plaintiffs for the construction by them of a certain building for defendant. The contract referred to certain plans and specifications which were annexed thereto. The plaintiffs entered upon the work, and on March 10, 1894, notified the defendant that the building was completed according to the contract. No payments, so far as shown by this record, had been made on the contract, and defendant hád not accepted or taken possession of the building. Suit was then commenced by plaintiffs against defendant to recover upon the contract for the contract price, and for some extra work and material. In that case plaintiffs had verdict and judgment, which was subsequently reversed in this court. Eaton v. Gladwell, 108 Mich. 678. That case was subsequently discontinued by the plaintiffs. On April 6, 1895, the defendant took possession of the building under protest, in which he stated that, in taking possession,, he did not accept the building as having been built in accordance with the terms of the contract, and that he would hold the plaintiffs responsible for all sums it might cost to put it in shape for use, and for loss of rent of the premises since the time it should have been finished under the contract; also, the difference in the value of the building as it then was and what it would be worth if constructed and finished according to the contract. Soon after the defendant took' possession of the building, the present suit was commenced. The action is brought to recover on the quantum meruit.

The defendant claimed upon the trial that the work and materials did not correspond in many particulars to those required by the contract. While there is a contest over some of these matters, it is not seriously contended that the building, was in all respects as required; but it is claimed here, as it was in the former case, that the defendant waived his right to insist on strict compliance with / the contract terms. The plaintiffs, to maintain the case j upon the quantum meruit, introduced three witnesses, ,! two of whom testified that the building was worth in the ; spring of 1895 $1,327, and the third put it as $1,387.25, • while the plaintiffs stated the value at $1,400. Plaintiffs’ witnesses say, however, that they did not estimate the value of the building on the basis of the specifications, but ¡"took the building as it was. Defendant called several - witnesses who testified to the difference in the value of the building as it was constructed and what it would have been worth if built according to the specifications. Mr. Spitzley placed the difference in value at $400; Mr. Golden, at from $500 to $600; Mr. Shepler, at the same •amount; Mr. Lee placed the value of the building as it then was at $900, or over $400 less than it would have been worth if built according to the contract. Testimony was also introduced by the defendant showing what these defects in the building were. They are too numerous to mention here, but many of them, according to this testimony, were glaring, and not easily remedied without a total rebuilding of the structure. The defendant also made another claim of defense as a set-off to the amount claimed by plaintiffs. It appears that the contract was made December 15, 1892. The work was commenced in January, 1893, but was stopped by the city authorities because it was within the fire limits. The limits were changed, and work was again commenced May 17, 1893. No complaint is made by the defendant of this delay, however; but Mr. Eaton, one of the plaintiffs, testified that two months would have been a reasonable time to complete the building after work commenced the second time, and that it could have been finished in May and June, and ready for occupancy by July, 1893. The notice of its completion was served on defendant on March 10, 1894; and defendant claims for the rental value of the building from the time it should have been completed, .July 1, 1893, to the time he took possession of it, in April, 1895. His testimony tended to show that the rental value for this time was from $45 to $54 per month.

The questions involved, as stated by counsel for defendant, are:

1. What is the proper measure of plaintiffs’ recovery in quantum meruit for the .construction of the building, which they admit does not conform to the contract and ■specifications ?
2. Was the defendant bound at anytime to take possession of the defective. building before the plaintiffs had ■completed it according to the provisions of the contract F
3. If the defendant was not bound to take possession of the building, was he responsible for injury to it occasioned by dampness and general deterioration arising from ■vacancy during the time preceding his actually taking possession, and while the building was unoccupied ?
' 4. Cannot the defendant recoup against the plaintiffs the damages he has suffered on account of the loss of the use of such a building as he contracted for ?

Upon the question of the measure of damages, the defendant called Mr. Spitzley as a witness, and asked him .- “ How much would it cost to make the necessary changes in that building to make it conform to the plans and specifications ? ” This was objected to, and objection sustained, upon the ground that it would be a practical impossibility to make the building, in the manner in which it was constructed, conform to the plans and specifications. Similar questions were put to other witnesses, and objections sustained by the court. It was and is the contention of counsel for defendant that these questions were proper, and that the measure of damages which should be permitted, under the circumstances here stated, is what the building was reasonably worth as defendant took possession of it, not exceeding the contract price, less what it would reasonably cost to complete it and make it comply with the contract and specifications. On the other hand, counsel for plaintiffs contend that the proper measure of damages in a case like the present is the value of the building as it is, not exceeding the contract price, less the difference in its value as it now stands and as it would be were it such a building as contracted for; that, to this difference in value to be deducted in the case at bar, there should be added the damage suffered by the defendant by reason of the delay, if any, in constructing the building, and the net result would be the measure of recovery. The court below stated the rule as to the measure of damages substantially as it is claimed by counsel for plaintiffs.

While it is apparent that the rule claimed by counsel for plaintiffs and as given by the court is not the correct rule, the defendant had no reason 'to complain of it. It gave him a greater amount of damages than he was entitled to. In fact, it gave him double damages; that is, under it he could take the building erected at its then value, not exceeding the contract price, deducting from that value the difference between such value and what it would be worth if it had been such a building as contracted for. The true rule to be applied in a case like the present, where it appears that, at the time the defendant took possession, the building could not be made to comply with the contract without its entire demolition, and was of less value than the one contracted for, is the value of the building as so completed, not exceeding the contract price, less the damages sustained by the defendant by reason of plaintiffs’ failure to perform their contract. These damages consist of: (1) The rental value during the time the completion was unnecessarily delayed. (2) The difference between the value of the building actually tendered and that contracted to be built, less the difference between the agreed price of such contracted building and the reasonable value of that which was built; or, in other words, the damages are the difference between the house contracted for, if worth more than the price agreed to be paid, and such price. This would give the defendant the benefit of his contract.

It is conceded that the building was completed, though it was not constructed in accordance with the specifications contained in the contract. It is well settled that one is not compelled to accept work which does not conform to the contract, and that no recovery can be had on the contract where the contractor has not complied with-the specifications. Allen v. McKibbin, 5 Mich. 449; Martus v. Houck, 39 Mich. 431 (33 Am. Rep. 409 ); Hanley v. Walker, 79 Mich. 616 (8 L. R. A. 207); Eaton v. Gladwell, 108 Mich. 678.

When, however, a building has been erected, though it does not comply with the contract and specifications, and the owner of the land has taken possession, a recovery can be had by the contractor on the quantum meruit. In the present case the structure was for a dwelling-house. It was completed for that purpose, and was suitable for it, though not in compliance with the specifications. The defendant took possession of it in April, 1895. Before taking possession he notified the plaintiffs in writing that he did not accept it as having been built in accordance with the contract, and that he would hold them responsible for all sums it would cost to put it in shape to use. Having taken possession, and appropriated the material and labor of the plaintiffs which had gone into the building, the damages would be measured under the above rule. It is trae, the rule is laid down, in certain cases where the building has not been completed, that the measure of recovery is what the building is reasonably worth as defendant took possession of it, not exceeding the contract price, less what it would reasonably cost to complete it and make it comply with the contract and specifications. But that is not this case. It is conceded that the building, when taken possession of by the defendant, could not be made to comply with the specifications in the contract without an entire demolition of it. The sills were not of the required size; the studding and joists were not of the size specified, and they were too far apart; the roof boards were not planed; and in many other respects the contractors had failed to comply with the specifications. These facts were known to the defendant when he went into possession. Under such circumstances, he cannot be allowed to measure- his damages by what it would cost to tear the building down and put in timbers of the required size, tear off the roof and plane the roof boards, and to put in other timber and lumber such as specified in the contract. Having concluded to take the benefit of the labor and material in the building as it was, defendant’s damages must be measured by the rule stated by plaintiffs’ counsel.

In Martus v. Houck, 39 Mich. 431 (33 Am. Rep. 409), the controversy arose out of a contract for the building of a house of worship. It was conceded that the building was not constructed in accordance with the contract. It was to have 15 windows; it had but 13. The floor was to be l-J- inches thick; it was but T[. The studding was to be 3 by 8; it was only 2 by 8. The trial court instructed the jury, in substance, that, if the building was not completed according to the contract, the plaintiff was entitled to recover, but with such allowance from the contract price as would be equal to the cost of making the building what it should be, To this, however, he added the qualification, in respect to the studding, that the defendants would not be entitled to tear this out, and substitute, at the expense of the plaintiff, studding of the size stipulated for, but that the difference in the value of the building caused by this departure from the contract the defendants should be allowed for. This court said of that charge:

“Had the defendants taken possession of this building and applied it to the uses for which they were constructing it, the charge of the circuit judge would, in the main, have been applicable to the case, and might have been supported.”

The contract price in the present case was $1,335. It is contended that there were extras amounting to $99, making the total amount under the contract $1,334, which, with interest added from the time defendant took possession, in April, 1895, would make the amount claimed something over the amount found by the jury, which was $1,513. The defendant asked the court to charge that, the failure to complete the building being the fault of the plaintiffs, no right of action accrued until defendant took possession of the building as it was; also, that defendant was not bound to take possession until it was completed according to contract. These requests were given, but greatly modified by the court in other portions of the charge. The court said, substantially, that, when it became apparent to the defendant that the plaintiffs were not going to complete the building according to the terms of the contract, then it became incumbent upon him to either take his building at that time, or to abandon it entirely to the plaintiffs, and take measures, if he desired the use of his land, to have the structure removed therefrom. We think the court was not in error in this modification, under the circumstances here stated. The plaintiffs notified the defendant in March, 1894, that the building was completed according to the terms of the contract. The defendant, so far as this record shows, did not signify to the plaintiffs what his course would be in reference to it. He neither accepted it nor did he refuse to accept it until April, 1895. He had a right to rely upon his contract, and, by seasonably refusing to accept, could avoid liability upon the unperformed contract. Fildew v. Besley, 42 Mich. 100 (36 Am. Rep. 433); Martus v. Houck, 39 Mich. 431 (33 Am. Rep. 409); Eaton v. Gladwell, 108 Mich. 681. By his own showing, he kept the question open for more than a year without deciding what course he would take. During that time he had no right to recover for the rental value or for any deterioration in the building. He should have decided within a reasonable time. Eaton v. Gladwell, supra. A year and a month was not a reasonable time. In a few days, at most, the question should have been settled by him.

It was admitted that the building could have been completed, under the contract, as early as the summer of 1893. The defendant was entitled to the use of the building from that time, but it was not tendered to him until March, 1894.. The defendant asked the court to charge:

“The defendant’s measure of damages in recoupment is the rental value of the building as it ought to have been completed according to the contract, to be computed from the time plaintiffs ought reasonably to have completed the building down to the time when the plaintiffs served on defendant a sworn notice that the building was completed according to the contract.”

This was refused. This request should have been given. Covode v. Principaal, 110 Mich. 672.

We find no other error in the case.

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

The other Justices concurred.


text:
    HOGAN v. DREIFUS.
    Bills and Notes — Title—Presumptive Evidence.
    The possession by plaintiff, and production at the trial, of an accepted draft discounted by a bank, and indorsed in blank by one of its officers authorized to make such indorsement, is presumptive evidence of plaintiff’s right to bring suit thereon.
    Error to Wayne; Lillibridge, J.
    Submitted May 4, 1899.
    Decided October 3, 1899.

      Assumpsit by Walter G. Hogan against Charles Dreifus, Emanuel Dreifus, and Leopold E. Block, co-partners as Dreifus, Block & Company, on certain acceptances. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Affirmed.

      Wells, Angelí, Boynton & McMillan, for appellants.

      Boxeen, Douglas & Whiting, for appellee.
   Long, J.

This action is upon five acceptances drawn in favor of the First National Bank of Chicago by the Columbian Exposition Salvage Company, of Chicago, 111., upon Dreifus, Block & Co., of Pittsburg, Pa., and accepted in writing by that company. They were all drawn in 1895, and accepted within a few days after their respective dates. The Columbian Exposition Salvage Company had an account with the First National Bank of Chicago, and discounted these acceptances with that bank, the proceeds being placed to the credit of that company. When these acceptances became due, they were duly protested for nonpayment. They were each duly indorsed upon the back as follows: '“Without recourse. First National Bank of Chicago. H. Hoge.” It was shown on the trial that Mr. Hoge had authority to make these indorsements. The court below directed the verdict in favor of the plaintiff for the amount claimed. Defendants bring error.

The only question raised here, as stated by counsel for defendants, is whether, under the proofs in the case, the plaintiff showed title in himself to the acceptances at the time the suit was brought. Defendants’ counsel asked the court to charge (1) that the plaintiff was not entitled to recover; (2) that if the jury found that plaintiff, Hogan, was not the owner of the acceptances in suit when this suit was begun, he was not entitled to recover. These requests were refused.

There is no proof in the case that the plaintiff ever became the owner of these acceptances, except the fact that his counsel had them in his possession, and produced them on the trial. They were indorsed by the bank in due form. Mr. Forgan, the vice-president of the bank, was called as a witness, and testified that Hoge had authority to make the indorsements; that Hoge was assistant cashier of the bank. He also testified that none of the acceptances had been paid by the acceptors, and, being further examined, testified as follows:

“Q. What was done with them by the bank, as to being charged back to the company ?
ilA. They were carried past due upon our books until May 2?, 1896.
‘lQ. How were they disposed of ?
“A. I then called in Mr. Poliak [the treasurer of the Columbian Exposition Salvage Company], and told him we could not afford to wait for the adjustment of this matter until the acceptors paid, as they were resisting payment; * * * that he must come to the front and arrange the matter. He said the company was not prepared to pay us, but that they would give their own paper, and keep it alive with the guaranty of certain parties, and leave this paper [the acceptances] with us as collateral for their direct obligation, so that things would be changed on our books from past-due paper to a live piece of paper secured by past-due paper.”

On cross-examination the witness testified:

“Q. You held the past-due paper until what time?
“A. We held it past due until May 27, 1896.
“Q. On May 27th what was the arrangement betweeu you and the Columbian Exposition Salvage Company ?
iiA. The arrangement was that they gave us their note for the paper.
Q. Did you .surrender the paper ?
“A We did not surrender the paper. We took it as collateral security for their note. That note was payable on demand. It bears interest, and.they pay us the interest on it. They have paid the interest regularly every month since, up to the last month;. * * that is, the note of
the Columbian Exposition Salvage Company. We did not charge these acceptances back in the open account of the Columbian Exposition Salvage Company. The transaction on our books was simply to credit bills discounted with these acceptances, and charge it with the note of May 27th, and it so stands upon our books today. * * *
“Q. Do you recall bringing a suit in Pittsburg in the name of your bank, upon these acceptances, or some of them, against the acceptors?
“A. I don’t recollect'that, — whether we brought suit in Pittsburg or not. I knew there was a suit brought against the acceptors somewhere in the name of the bank; that I am sure of. I suppose that suit is what you. are figuring on here.
“Q. You remember that thei’e was a suit as you have described, but whether it was in Pennsylvania or elsewhere you do not now recollect ?
“A. I do not.
“Q. Do you know whether that suit is still pending, or has been dismissed?
“A. I don’t remember; I cannot state as to that.”

It is the contention of counsel for the defendants that' under this undisputed testimony the court should have directed the verdict for the defendants, or at least have instructed them as requested in their second request. It is settled in this State that the possession by the plaintiff of a promissory note sued on, and its production by him upon the trial, are presumptive evidence of his title or right to sue upon it, and that such right existed when the suit was commenced, and the plaintiff need not be the real or beneficial owner, to entitle him to recover. But the maker of such note has the right to rebut such presumption, and show that the plaintiff has no' title, or that he did not acquire title until after the commencement of suit, and thus defeat recovery thereon in such action. Hovey v. Sebring, 24 Mich. 232 (9 Am. Rep. 122), and cases cited in note 1 to that case; Reynolds v. Kent, 38 Mich. 246. It cannot be said here, however, that there is any evidence to rebut the presumption of ownership arising from the possession of the acceptances in the hands of the plaintiff. It appears that the acceptances belonged to the bank, and that they were duly indorsed by one having the authority of the bank to indorse them. They were produced on the trial, and the claim of ownership to them by the plaintiff fully established by that fact.

The judgment must be affirmed.

The other Justices concurred.


text:
    POKREFKY v. DETROIT FIREMEN’S FUND ASSOCIATION.

    Mutual Benefit Associations — Powers of Trustees — Change in By-Laws — Retroactive Effect.
    The fact that general authority is conferred upon the trustees of a benefit association organized under 1 How. Stat. chap. 165, to change its by-laws at pleasure, does not empower them to adopt, against a member’s protest, a by-law which limits the amount of benefits to which, at his death, his beneficiary is entitled, to a specified share of a per capita assessment upon surviving members, where, under the by-laws existing when he became a member, his beneficiary was entitled to the entire proceeds of such an assessment.
    Error to Wayne; Hosmer, J.
    Submitted May 4, 1899.
    Decided October 3, 1899.

      Assumpsit by Anna Pokrefky, individually and as guardian of Charles Pokrefky, a minor, against the Detroit Firemen’s Fund Association, to recover for death benefits. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      James D. May, for appellant.

      Edwin Henderson, for appellee.

         Rehearing denied December 12, 1899.

   Long, J.

The defendant association was organized in April, 1867, under what is now chapter 165, 1 How. Stat. Its object, as set forth in its articles of association, is to afford relief to sick and disabled members and to the families of deceased members. Plaintiffs’ decedent joined the association July 9, 1890. At that time the by-laws of the association provided that, in the event of the death of any of the members of the association in good standing, a per capita assessment of $5 should be levied upon each member of said association, and the entire amount paid to the properly-designated beneficiary. After the death of Pokrefky, the beneficiaries (the plaintiffs here) requested payment in accordance with the by-laws. It is conceded that there were 346 members in good standing at that time, and each paid to the treasurer the $5 assessment, making the sum paid in $1,730. The association paid the beneficiaries the sum of $1,500, and this suit is brought to recover the balance. The court below directed a verdict in favor of defendant. Plaintiffs bring error.

It appears that, at the time Pokrefky joined the association, sections 3 and 4 of article 8 of the by-laws provided :

“Sec. 3. Upon the death of any active or retired member of this association, there shall be collected from each surviving active or retired member thereof the sum of five dollars, said amount to be paid on or before the second payday of the fire department after the death of the said member; and, in default of said payment, the secretary shall strike the name of the defaulting member from the rolls of the association: Provided, however, that the board of trustees of this association may extend the time for said payment.
“Sec. 4. Upon the death of any active or retired member of this association, there shall be paid within ninety days to the person or persons (to be designated by said member) named in the instrument on file in the office of the secretary the entire amount collected under section 3, article 8.”

The defense to the action is that on June 8, 1896, sections 3 and 4 of article 8 were amended: (1) By adding-to section 3, as it stood originally, the following: “AIL moneys received by said association must be placed in one general fund. All moneys received at a death assessment in excess of $1,500 must be placed in the general fund. When the general fund equals or exceeds the sum of $2,500, there shall be no assessment made upon the members of this association upon the death of one of its members, but the beneficiary of such dead member shall be paid from the general fund: Provided, however, that no two death assessments shall be paid in succession from the general fund, except by the unanimous vote of the trustees and the approval of the president of the association.” (2) By amending section 4 to read as follows: “Upon the death of any active or retired member of the association, there shall be paid within ninety days to the person or persons (to be designated by said member) named in the instrument on file in the office of the secretary the sum of $1,500, under section 3, article 8.” It appears that, at the time these amendments to the by-laws were presented to the board of trustees, 186 members, including Pokrefky, protested in writing against these changes. There were 9 trustees of the association at that time, and the amendments were agreed upon by 8, notwithstanding the protests which came from more than one-half of the members.

The act under which the association was organized provided that:

“The affairs of each corporation shall be managed by not less than five nor more than twenty trustees, to be chosen by the members thereof, and to hold office for one year. * * * The by-laws of such corporation shall be adopted by the trustees, who may change them at p easure. ” 1 Comp. Laws 1871, § 3038.

It was shown by the testimony given by the defendant in the case that the association, prior to this change in the by-laws, had limited or no funds on hand to pay sick benefits, and that it was practically insolvent; that by these amendments, and all the funds collected going into the general fund, sick benefits could be paid, and still preserve a fund of $1,500 to be paid out on the death of any member. This was the course taken upon two deaths prior to that of Pokrefky. -The court below, being of the opinion that, under the statute under which the association was organized, the trustees had the power to amend the by-laws in the manner in which they were amended, and that the amendments were reasonable in view of the situation of the finances of the association, directed a verdict in favor of defendant.

The court was in error in thus directing the verdict. The case is unlike Borgards v. Insurance Co., 79 Mich. 440. There it appeared the plaintiff had an equal voice in the management of the affairs of the company, and under the charter could have had his policy canceled and withdrawn; and it was found that, by his conduct, he assented to the bylaws, and the change in the terms of his policy caused thereby. In the present case, Mr. Pokrefky, acting with a majority of the members, protested against the change made by the trustees. The by-laws, as they existed at the time he became a member, constituted a part of the contract. If the trustees had the power to limit the amount of payment to be made to $1,500, they could limit it to a much less amount. The act under which the company was organized permitted the trustees to change the by-laws at pleasure ; but it cannot be said that this was intended to place it within the power of the trustees to adopt by-laws that would have a retroactive operation upon the contracts of the company máde before new by-laws were adopted. While the trustees undoubtedly had the power to pass or change by-laws necessary for the well government of the affairs of the company, it cannot be said that it was intended to clothe them with the arbitrary power to reduce the amount due beneficiaries under contracts made before new by-laws were passed. The same question was presented in Insurance Co. v. Connor, 17 Pa. St. 136, and it was there held that the by-law could have no retrospective effect.

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

The other Justices concurred.


author: Per Curiam.

text:
    JUNGNITSCH v. MICHIGAN MALLEABLE IRON CO.
    1. Judgments — Res Judicata.
    A reversal on appeal, without a new trial, of a judgment for personal injuries, rendered in an action wherein the alleged negligence of defendant was set out in the declaration in two counts, upon only one of which counts plaintiff was allowed to proceed, is a bar to any subsequent action for the negligence as averred in the other count.
    2. Same — Nonappeal able Orders.
    The fact that a plaintiff is not entitled to appeal from an order striking out one count of liis declaration, alleging a, nondivisible cause of action in separate counts, does not affect the conclusive force of a judgment on the other counts.
    Error to Wayne; Frazer, J.
    Submitted May 9, 1899.
    Decided October 3, 1899.
    Case by Oscar Jungnitsch against the Michigan Malleable Iron Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      William Look and Ira G. Humphrey ( Willis Baldwin, of counsel), for appellant.

      Keena & Lightner, for appellee.
   Per Curiam.

The plaintiff sues to recover damages for negligent injury. The defense of a former suit in bar was sustained by the circuit court, and plaintiff has brought error. It appears that the plaintiff, by his next friend, brought a former action before the circuit court of Wayne county to recover for the same injury, imputing negligence to the defendant in different counts, in one of which the same breach of duty as is set up in this action was averred. On the trial the court ruled that the breach of duty which is set up in this action did not entitle the plaintiff to a verdict. The plaintiff submitted the case to the jury on the other count, and recovered a verdict, which was reversed by this court on error, and no new trial ordered. 105 Mich. 270.

The cause of action was not divisible, and the cause of action here set out was within the issue presented by the former case. The rule is settled that a prior judgment is a bar to all the matters that might have been tried under the issue made. Barker v. Cleveland, 19 Mich. 230; Pierson v. Conley, 95 Mich, 619; Detroit, etc., R. Co. v. McCammon, 108 Mich. 368; Kellogg v. Thompson’s Estate, 115 Mich. 618; Jacobson v. Miller, 41 Mich. 90. The cases cited by plaintiff’s counsel to the point that the'' withdrawal of a portion of a divisible cause of action entitles the plaintiff to a new action on such portion of the demand do not apply here, for the reason that the cause of action was not divisible. If the recovery of the plain- • tiff had stood, he certainly could not have had another cause of action under the present count.

But it is further contended that, as the plaintiff could not appeal from the ruling of the circuit judge, he should not be debarred from trying the case anew. We do not find anything to sustain the view that the force of a judgment as a bar depends upon the right to appeal. Appeal is a statutory right. Many of the judgments of justices of the peace in the city of Detroit are final, and many other instances might be cited in which appeals are not allowed. Nevertheless judgments are in such proceedings bar to other actions. Furthermore, the determination of this court on the hearing of the former case was in terms final as to all the issues presented.

The judgment is affirmed.


author: Moore, J. Hooker, J. Per Curiam.

text:
    LOOK v. DURFEE.
    Estates of Decedents — Appointment of Administrator as Trustee — Accounting—J urisdiotion.
    One appointed to administer an estate, the income of which was bequeathed to decedent’s wife for life, the whole estate to become vested, after her death, in decedent’s children, is not relieved from the duty of accounting as administrator to the probate court by his subsequent appointment as trustee of the estate by a court of chancery, pursuant to proceedings taken by the wife, where the children were not made parties to, nor given notice of, such proceedings.
    Error to Wayne; Steere, J., presiding.
    Submitted January 4, 1898;
    opinions filed March 15, 1898.
    Rehearing granted April 19, 1898: former decision reversed October 3, 1899.

      Certiorari by William Look to review the decision of Edgar O. Durfee, probate judge of Wayne county, holding relator accountable to the probate court as administrator of the estate of John Schehr, deceased. From a judgment of affirmance, relator brings error.
    Affirmed.

      Ira G. Humphrey and George X. M. Collier (Willis Baldwin, of counsel), for appellant.

      James H. Brewster and Frank A. Noah (Wisner & Harvey, of counsel), for appellee.
   Moore, J.

In 1869, John Schehr died leaving a will, which was probated. He left a widow and six children. In his will he appointed three executors, giving them full ■power and authority to sell his personal and real estate, •and to invest the proceeds in mortgages upon real estate in Wayne county. The executors subsequently resigned, .and an administrator de bonis non with the will annexed was appointed. Upon his resignation, Mr. Look was .appointed administrator. At this time the debts and administration expenses had been paid, and the estate •consisted of personal property amounting to about $4,000. The widow, Mrs. Schehr, claimed that she was entitled to this estate. Her claim was not admitted by the administrator. She filed a bill in chancery to obtain possession of the property. Her bill was dismissed in the circuit court, and, upon appeal to this court, the decree was affirmed. The case is reported as Schehr v. Look, 84 Mich. 263. In that case the court construed the will of Mr. Schehr, and made use of this language:

“ In the present case, however, it is evident, from the language employed, that the estate bequeathed to the wife is intended to be limited to the use, and after her death the whole body of the estate is to become vested in the children. Whether or not the testator intended to vest .any estate in the executors, or only to give them power of disposition, does not become important. The execution of the trust failed by the resignation of the executors before any portion of the estate had been disposed of or any distribution made. The estate is now in the hands of the administrator, and, upon proper application, undoubtedly a ■court of chancery would have power to appoint the necessary trustee for the control and management of the estate, and to pay the income over to the widow.”

Doubtless, acting upon the suggestion contained in this-opinion, Mrs. Schehr, in June, 1891, filed a bill in chancery against Mr. Look, as administrator, praying for an accounting by him as administrator and for the appointment of a trustee. July 23, 1891, a decree was entered in said cause according to the prayer of the bill. Mr. Look was appointed trustee, and filed his account as administrator, and entered upon his duties as trustee, and continued to obey the orders of the chancery court until Mrs. Schehr died, in July, 1895. In September of that year, Mr. Look filed his final account as trustee, showing a balance in his hands of something over $2,000. In October, 1895, Mr. Look was cited to appear before the probate court and file his final account as administrator. He appeared before the probate court, and objected to its jurisdiction upon the ground that he was now a trustee, and should account to the chancery court, and not to the probate court. The probate court held it had jurisdiction, and found a balance to be due from Mr. Look of something more than $5,000. The question involved here is, Should Mr. Look be required to settle his account in the probate court as administrator, or in the chancery court as trustee?

In support of the contention that Mr. Look should settle with the probate court, counsel cite Holbrook v. Campan, 22 Mich. 288; Lafferty v. Savings Bank, 76 Mich. 35; 2 How. Stat. § 5957; and the recent cases of In re San-born’s Estate, 109 Mich. 191, and In re Sweetser’s Estate,.Id. 198. We do not think these cases are controlling here, for the conditions are very different. The only act Mr. Look had done as administrator was to take •the estate as it came to him. His right to the estate was at once questioned, and the aid of the chancery court was invoked to decide that right. It was then, said by this court that, upon the matter being brought before the chancery court, it would take jurisdiction to appoint a trustee, and later it did appoint a trustee. To its action in that respect apparently no objection was made, and for four years the trustee managed the estate under the direction of the chancery court. In Re Sanborn’s Estate, 109 Mich. 196, Mr. Justice Montgomery said:

“Assuming that the will creates such a trust as is contended, we think that, before the executor can discharge himself of his official responsibility, he must do some act to change the character of his holding, and show that the fund is placed safely where it ought to be.”

Is not that just what has been done in this case ? Suppose the chancery court had appointed some one else as trustee, and Mr. Look, as administrator, had turned over all the assets in his hands as administrator to the trustee, who for four years administered the fund as trustee, and disposed of the income under the direction of the chancery court; could it justly be said that the probate court should still require the administrator to account to it for the entire fund, just as though no proceedings were had in the chancery court? We think not. The record shows that the fund which came to Mr. Look as administrator passed into his hands as trustee, and we think he should account as trustee to the court appointing him.

The order of the circuit court is reversed, the writ will issue as prayed, and the order of the probate court is vacated.

Grant, C. J., and Long, J., concurred with Moore, J.

Hooker, J.

(dissenting). The relator was appointed administrator de bonis non with the will annexed of the estate of one John Schehr, which estate at that time consisted of personal property, and it came to the hands of the relator. The testator’s widow claimed that she was entitled to the possession of the entire estate as absolute owner, and that, at all events, she was entitled to the possession and control of the property during her natural life. This being disputed, she filed a bill in chancery for a construction of the will, and relief, and, upon a hearing in this court upon appeal, her bill was dismissed, with the intimation that she was entitled to the income from the estate, and, as the trustees named in the will had resigned, an application might be made to a court of chancery to appoint a trustee, and this was done, the relator being appointed. He administered the trust until the widow’s death, when he filed his final account as trustee in the equity court, showing a balance of $2,024.92 in his hands, giving notice to interested parties. A month later he was cited into probate court to show cause why he should not file his final account as administrator, and appeared and filed such account, but insisted that he had filed his final account in the court of equity, and that distribution must be ordered by that court. The probate court made a decree that he was indebted to the estate in the sum of $5,415.52, being upwards of $3,000 more than his unsettled trust account showed to be in his possession. This proceeding was removed to the circuit court by certiorari, where the order of the probate court was affirmed, and it is before us upon writ of error.

The order of the probate judge was appealable, and it would seem that an appeal would have been the better practice, as the merits of the question could then have been reviewed. As it is, we must dispose of the case upon the question raised, viz., whether the probate court had jurisdiction to require an accounting. Relator is not entitled to this relief, because the probate court has jurisdiction over its administrator to compel an accounting, and to close the estate upon its books. That court had an open estate upon its records. Its letters of administration were out, and the administrator’s account showed him charged with a large amount of property that was unaccounted for. The probate court was unable to take judicial notice of litigation elsewhere, or the payment of the fund by the administrator to a trustee. It was proper for the court to require a settlement of the estate at a proper season. Whether it was a proper season, and what there was to settle, if anything, would appear upon the hearing.

We do not find it necessary to discuss several questions which suggest themselves, viz.: Whether the appointment of Mr. Look as trustee by a court of equity drew to that court the settlement of the estate after the execution of the trust which that court appears to have declared, viz., the custody of the fund for the benefit of the widow, thereby devesting the probate court of its power to complete the administration of the estate afterwards; or, if equity might have taken such jurisdiction, whether it did or not. It may be that either would be a complete answer to the probate judge when the facts should be presented, and the administrator thereby become entitled to be discharged. It does not appear to have been considered so; but, if the probate judge was wrong in his conclusion, his order can be reviewed upon appeal. Whether and to what extent the questions passed upon by the court of chancery are res adjudicata, as against the persons now entitled to the residuum of the estate, we need not here consider; and whether it is necessary that an adjudication be made by the probate court before the probate bond may be resorted to by distributees we need not determine. It is enough that the administrator had not filed and had not settled his account with the probate court. This we understand that that court has always the right to compel.

The order of the circuit court should be affirmed.

Montgomery, J., concurred with Hooker, J.

ON REHEARING.

Per Curiam.

Soon after the case was decided, a rehearing was ordered. A decision of the case has been delayed because the attorneys for the respective parties expected the case would be settled out of court. The motion for a rehearing is based upon the claim that the court in chancery never had authority to appoint Mr. Look trustee, for thé reason, which was not made to appear when the case was here before, that the six children, to whom the estate belonged, subject to its use by the mother of the children, were not made parties in the chancery proceeding, and no notice to them was ever given of the application to have Mr. Look appointed as trustee. A majority of the court, when the case was here before, were of the opinion that the court in chancery, by its appointment of Mr. Look as trustee, had jurisdiction over him, and that he should account to the chancery court as trustee, and not to the probate court as administrator. Upon the showing now made, we are all agreed that the probate court had jurisdiction of the estate of Mr. Schehr, and of Mr. Look as administrator, and has never been devested of its jurisdiction, and that Mr. Look should be required to settle his account as administrator in the probate court.

Mr. Look appeared in the probate court only for the purpose of questioning its jurisdiction. In arriving at the balance due from Mr. Look to the estate, it does not appear that he was credited with his disbursements and charges. There is a difference of $3,000 between the amount found due in the chancery court from Mr. Look as trustee and the amount found due in the probate court. Counsel say in their brief that they are willing to have all proper disbursements allowed to Mr. Look. The probate court is directed to credit Mr. Look with all proper dis bursements and charges.

The order of the circuit court is affirmed.