text:
    PODKASTELNEA v. MICHIGAN CENTRAL RAILROAD CO.
    1. Statutes — Construction.
    Effect should be given to all the provisions of a statute, if possible.
    2. Same — Workmen’s Compensation Act — Construction.
    The workmen’s compensation act should not be given a construction which will nullify any of its provisions, unless necessary.
    3. Master and Servant — Workmen’s Compensation Act — Notice oe Claim — Time for Filing Claims — “Physical Incapacity.”
    The workmen’s compensation act (Act No. 10, Extra Session 1912, part 2, § 15, 2 Comp. Laws 1915, § 5445), providing that no proceedings for compensation may he maintained unless, in the event of physical or mental incapacity, a claim is presented within six months after the removal of such incapacity, does not relate to an incapacity from physical reasons to personally make out and personally mail or deliver the claim.

    Certiorari to Industrial Accident Board.
    Submitted June 11, 1917.
    (Docket No. 31.)
    Decided September 27, 1917.
    Andrew Podkastelnea presented Ms claim for compensation against the Michigan Central Railroad Company for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed.

      J.W. Dohwny and Raymond K. Dykema (Frank E. Robson, of counsel), for appellant.

      Charles L. Dibble (Lincoln H. Titus, of counsel), for appellee.

       On sufficiency of notice of injury under employers’ liability act, see note in 21 L. R. A. (N. S.) '233.

   Fellows, J.

This proceeding brings up for review the construction placed by the industrial accident board on certain provisions of section 15, pt. 2, of Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5445), commonly called the “employers’ liability act.” The section involved is as follows:

“No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer three months after the happening thereof, and unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same; or, in case of the death of the employee, or in the event of his physical or mental incapacity, within six months after death or the removal of such physical or mental incapacity.”

The construction placed upon this section by the board is as follows:

“The incapacity referred to is of two kinds, viz., ‘physical’ or ‘mental.’ A proper construction of the section requires that both of these words, be given effect, and by giving effect to the phrase ‘physical incapacity,’ it must be held that the six months’ period did not commence to run until the applicant was physically able to make out and deliver the claim to respondent.’?

The facts disclosed on this record, briefly stated, are as follows: On March 2, 1914, claimant was in the employ of defendant putting up ice at Kalamazoo. His foot got into a hole between two cakes of ice, and he fell over, causing an injury to his ankle and limb. No bones were broken. It is claimed plaintiff’s foreman was present when this took place. Claimant worked the balance of the day, and walked home about a mile. Arriving there, he found that his foot had stárted to swell and was quite painful. He did not work the next day, and the second day went to the office and drew his pay. Being unable to work, he remained at home, getting out in the yard some, and applied home remedies. He was not confined to his bed. The forepart of May a doctor was called, who found the joint inflamed, and treated him for it. Later he lanced the ankle and turned out the pus. After that a fibrillar growth appeared in the opening, and claimant was taken to the hospital on June 29th, and this growth was removed. He remained at the hospital until August 24th, when his attending physician considered him sufficiently recovered to be able to come to his office for such further treatment as he might require, and he returned to his home. He had not recovered so as to be able to work at the time of the hearing before the committee on árbitration April 27, 1915.

Claimant does not speak, write, or understand English. About a month after the accident he employed a fellow countryman named Nesho, who understood English, to write to the defendant claiming compensation. Defendant never received this notice, and claimant made no-proof of its being sent. Nesho, at the time of the hearing, was in the old country, and his deposition was not taken. On November 19th, more than eight months and a half after the accident, claim for compensation was made through a Mr. Strifling, who was employed by claimant to perform this service. The claim was received by the company on the 20th.

It is the claim of the claimant that the section under consideration should be construed to mean that an employee is physically incapacitated from making claim for compensation, within the provisions of the section under consideration, if he is not physically able to make out the claim and take it to the post office and personally mail it, and the board so held. And it necessarily follows, as we shall presently see, that under the construction of the provision by the board it is of no importance whether such physical incapacity is the cause preventive of giving the notice or not.

We are not inclined to invoke technical rules in the construction of this act, but we cannot overlook the fact that the rights of employers and employees are both safeguarded by its provisions, that the rights of both are designed to be protected by it, and that the provisions of the law, as written, must be given force. It is a well-recognized rule of statutory construction that effect should be given to all the provisions of a statute. We should not give the act such a construction as would nullify any of its provisions unless compelled so to do. The statute deals with accidents. To hold that the injured employee is not required to make claim, for compensation until six months after he has recovered sufficiently to personally make out his claim, and personally take it to the post office, or to his employer, would nullify the purpose and the language of the limitation found in this section. The purpose of requiring a claim for compensation is to give the employer notice, to enable him to employ skilled physicians to treat and care for the employee, thus minimizing his loss, and inuring to the benefit of the employee. It is its purpose to enable him to investigate claims made against him, and to do this when the matter is fresh in the minds of those who saw or knew of the accident, and to prevent the pressing of stale and unfounded claims. These purposes cannot be carried out if we follow the construction given by the board. If such construction is followed, claims for compensation need not be made in case of any accident serious enough to confine the employee to his home until six months after he has recovered. Such construction would give no force to the limitation, would nullify its purpose, and would make the filing of claims within six months after the accident the exception, and not the rule. The whole scheme of the act is designed to work out a speedy adjustment and payment of claims for industrial accidents. The injured employee is given a reasonable time, three months, in which to give notice of the accident, and ample time, six months, to make claim for compensation, with certain exceptions, named in the section. It is not necessary for us to determine in the instant case whether the term “physical incapacity,” as used in the section under consideration, contemplates incapacity from physical reasons to direct the making out and sending of the claim as is the usual course pursued. It will be sufficient to say that we cannot agree with the board; that it contemplates only an incapacity from physical reasons to personally make out and personally mail or deliver the claim.

We .have already stated that the claimant could not speak, write, or understand English. It is therefore obvious that, no matter what his physical condition was, he could not have made out the claim in English as he would be required to do; neither could he read it if it was made out for him. His want of knowledge of the English language, not his physical condition, prevented him from making out his claim; it necessitated doing what is done in the great majority of cases, what he finally did when he got Mr. Striding to make out his claim, and what he ineffectually tried to do when he got Mr. Nesho to look after it for him.

We have examined the authorities cited in the briefs and made such independent investigation as the time at our command permitted, and are unable to find authority in point. The English cases, usually very helpful in cases arising under this act, have to deal, as far as this question is concerned, with different language than found in our act. The provisions of the English act (Stat. 6 Edw. 7, chap. 58, § 2) are as follows:

“Proceedings for the recovery under this act of compensation for an injury shall not be maintainable unless notice of the accident has been given as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured, and unless the claim for compensation with respect to such accident has been made within six months from the occurrence of the accident causing the injury, or, in case of death, within six months from the time of death: Provided always, That the want of or any defect or inaccuracy in such notice shall not be a bar to the maintenance of such proceedings if it is found in the proceedings for settling the claim that the employer is not, or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in his defense by the want, defect, or inaccuracy, or that such want, defect, or inaccuracy was occasioned by mistake, absence from the United Kingdom, or other reasonable cause.” * * *

Several of the States have,, either, in terms or in substance, adopted the provisions of the English act. The legislature of this State has not seen fit to do so. If the provisions of our act are not sufficiently liberal as to making claims for compensation, the question is one for the legislative branch, not for the judicial.

It follows from what we have said that the award must be reversed.,

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


source: Caselaw Access Project

author: Fellows, J.

license: Public Domain

text:
    DONLIN v. DETROIT UNITED RAILWAY.
    1. Contributory Negligence — Automobiles—Street Railways— Reckless Driving — Collisions.
    The driver of an automobile who approaches a street railway track, his view of wliich is obstructed, at so high a rate of speed as to make it impossible to stop before the track is reached, where the sense of seeing is for the first time available, is guilty of contributory negligence, as a matter of law.

    2. Street Railways — Negligence—Question for Jury — Evidence.
    It was a question for the jury whether the defendant street railway company was guilty of negligence in the operation of the ear, where there was evidence that the car was operated at excessive speed in a densely populated neighborhood; that no gong was sounded, and that the car was not under control.

      3. Same — Automobiles— Collisions — Pkoximate Cause — Question fob .Jury.
    It was a question for the jury whether the contributory negligence of the driver of the automobile, in driving on the track at such a high rate of speed as to make it impossible to stop before the track was reached, was the proximate cause of the injuries to an occupant of the car.

    4. Automobiles — Negligence—Reckless Driving — Imputed Negligence — Minors.
    The negligence of the driver of an automobile cannot be imputed to an infant occupying it as a passenger.

    5. Same — Contributory Negligence — Evidence—Sufficiency.
    Evidence held, insufficient to show that the occupant of the automobile, which was driven by another, was guilty of contributory negligence.
    6. Parties — Joinder—Joint Tortfeasors.
    Where there are several tortfeasors, more than one negligently contributing to the injury, an action may be maintained against them jointly or severally.
    Error to Wayne; Hosmer, J.
    Submitted June 25, 1917.
    (Docket No. 7.)
    Decided September 27, 1917.
    Case by Stanley P. Donlin against the Detroit United Railway and anothe'r for personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Reversed as to defendant railway.

      Ormond F. Hunt, for appellant.

      William G. Fitzpatrick, for appellee.
    At the time of the accident which is the basis of this action, plaintiff was over 16 years of age and was living with his parents at 350 Howard street, in the city of Detroit. Their home was about a quarter of a block west of Tenth street. They had a roomer named Elder L. Rugg, who was an employee of defendant Home Telephone Company; he drove an automobile for that company, and it was kept in a garage on the premises of plaintiff’s father. The Sunday following Christmas plaintiff and his older brother, Wallace, went to church and Sunday school. Wallace had arranged with Rugg to call for them and some girl friends. Plaintiff does not appear to have been a party to this arrangement, but when Rugg came along after church and stopped for them the two boys got into the automobile. The girls had started for home, but were overtaken, and they got in the machine. The girls were first taken to their respective homes, then Rugg and the two boys started for home, going south on Tenth street. Baker street runs east and west. Defendant railway company operates a line on Baker. These streets cross at right angles. On the east side of Tenth street, and running north from Baker, was a high board fence; there was a place in it where there was a drop that gave a view to the east on Baker. In approaching Baker street the driver Rugg made no attempt to slacken his speed, but, on the contrary, increased it to 20 miles per hour, and, so far as the record discloses, did not look up Baker at the drop in the fence, or at any other place before Baker street was reached, or before attempting to cross, to ascertain whether there was a car coming from either direction. A car going west on Baker street collided with the automobile, and the plaintiff was seriously injured. There was testimony given on behalf of plaintiff, tending to show that this car was going at a very high rate of speed, 25 to 30 miles per hour, that no gong was rung to give notice of its approach, and that it was not under control. There 'was no testimony tending to show that defendant telephone company was in any way connected with the use of the automobile on the day in question, and it is conceded that a verdict was properly directed in its favor. The court also directed a verdict in favor of the railway company at the close of plaintiff’s case, on the ground that the sole and proximate cause of the accident was the negligence of the driver Rugg. From a judgment rendered upon the verdict so directed, the, plaintiff brings the case here.

       As to duty of operator of automobile when near street cars, see note in 38 L. R. A. (N. S.) 493.

       On the question of evidence as to speed of automobiles or other road vehicles, see note in 34 L. R. A. (N. S.) 778.

       On the question of imputed negligence of driver to infant, see note in 8 L. R. A. (N. S.) 669.

   Fellows, J.

(after stating the facts). We conclude, as matter of law, that the driver Rugg was .guilty of negligence contributing to the accident. He was not called as a witness; was not available, having left Detroit some time before the trial. If he depended upon his sense of hearing alone — and no other rational explanation of his conduct is permissible — it is not a sufficient excuse. To approach with an automobile the track of a street railway where the vision is obstructed at so high a rate of speed as to make it impossible to stop before the track is reached, where, after the machine has reached the street, the sense of seeing is for the first time available, and without theretofore taking any precautions to ascertain whether a car is coming, is not the exercise of that reasonable care for the protection of the driver himself and other occupants of the automobile as common prudence and the law requires. Colborne v. Railway, 177 Mich. 139 (143 N. W. 32), and authorities there cited. In that case it was said by Chief Justice Steere, speaking for the court:

“He could and should have made sure of the safety of proceeding, by looking just before entering upon the track, and at such a point that he could stop his machine if necessary in order to avoid a collision. This rule should be as strictly applied to an automobile as to a pedestrian, and the reasons for its application are more impelling.”

But we are unable to agree with the learned circuit judge that under the evidence in the case it may be said, as matter of law, that the negligence of the driver was the sole and proximate cause of the accident, and that there was no testimony in the case which would justify the jury in finding that the negligence of the defendant railway company contributed thereto. There was testimony in the case tending to' show that the car was funning at an excessive rate of speed. One witness puts it at 20 miles an hour; another at 20 to 30 miles an hour; another at 25 miles an hour; another, a passenger, said they were going so fast as to cause her to grow nervous. The testimony shows this neighborhood to be densely populated. There was evidence tending to show that the gong was not sounded, and the evidence as to the distance the car ran after the impact would permit the inference that it was not under control. This testimony made the question of the negligence of defendant railway a question for the jury. Deneen v. Railway Co., 150 Mich. 235 (113 N. W. 1126, 13 Am. &. Eng. Ann. Cas. 134); Putnam v. Railway, 164 Mich. 342 (129 N. W. 860), and authorities there cited; Sceba v. Railway Co., 189 Mich. 308 (155 N. W. 414); Wavle v. Railways Co., 170 Mich. 81 (135 N. W. 914).

Whether the negligence of the driver alone, or his negligence, together with that of the defendant railway company, caused the accident was a question of fact to be solved by the jury, not a question of law to be solved by the court.

Defendant’s counsel further urges that the negligence of the driver Rugg should be imputed to plaintiff,, that Rugg and plaintiff were engaged in a common enterprise, and that plaintiff was guilty of contributory negligence. Had plaintiff been an adult the negligence of the driver would be imputed to him under the uniform holdings of this court, upon the theory or fiction of the law that the relations of principal and agent, or master and servant, existed. But plaintiff, at the time of the accident, was a minor, incapable of entering into a contract of agency, and the question is ruled by Hampel v. Railroad Co., 138 Mich. 1 (100 N. W. 1002, 110 Am. St. Rep. 275). It was there said by Mr. Justice Hooker, speaking for the court:

“The next question of importance is whether the negligence of the driver is imputable to the plaintiff’s intestate. Plaintiff’s counsel concede that, had she been an adult, it would be, but earnestly and ably contend that, as she was an infant, she should not be charged with the negligence of the driver. It is urged that the doctrine of negligence rests upon the assumption that the relation of principal and agent or master and servant exists between the passenger and driver, and that, as an infant can be neither principal nor master, the doctrine cannot apply to an infant. The deceased was an infant 13 years old, in a carriage by invitation of its driver, through whose negligence, and without her fault, she was killed. Had she been an adult, his negligence would have been imputable to .her, upon the fiction that he was her agent, under the doctrine of Thorogood v. Bryan, 8 C. B. 115, which is recognized as authority in this State. See Mullen v. City of Owosso, 100 Mich. 103 (58 N. W. 663, 23 L. R. A. 693, 43 Am. St. Rep. 436). But this infant lacked the capacity to make him her agent, while there is not the least substance of a claim that either party supposed that such relation existed as a matter of fact.
“It is said that the case is covered by Apsey v. Railroad Co., 83 Mich. 432, 440 (47 N. W. 319). The question of imputed negligence is not discussed in that case. It may be inferred that it was not raised. The decision in Mullen v. City of Owosso was carefully limited to cases of adults, by the writer of the opinion, who participated in the decision of the Apsey Case. In some jurisdictions the negligence of parents is imputable to children. Whatever the rule in this State may be as to children of very tender years, having no capacity to care for themselves, that doctrine is not sustained as to infants generally. See Fye v. Chapin, 121 Mich. 679 (80 N. W. 797), citing Shippy v. Village of Au Sable, 85 Mich. 280 (48 N. W. 584), and Mullen v. City of Owosso, supra. Here no question of the parents’ negligence is raised, as in the Apsey Case; but, if a child is chargeable with its parents’ negligence, does it follow that he should be held responsible for that of strangers at whose invitation he rides? The doctrine is at variance with the overwhelming weight of authority here and in England. If the case of Apsey v. Railroad Co., supra, must be considered an authority for the proposition that the negligence of a driver is imputable to an infant, it should be overruled.”

Nor can it be said upon this record that plaintiff and Rugg were engaged in a common enterprise. We have already stated that plaintiff’s older brother Wallace made arrangements with Rugg to call for them* and the girls after Sunday school. There is no evidence in the record that plaintiff was a party to this arrangement, or knew of it. It therefore becomes unnecessary for us to determine the question of the effect of plaintiff’s minority upon an arrangement which it is not shown he entered into.

Plaintiff, so far as the proof discloses, in no way controlled the operation or movement of the automobile; no act of his, or failure to act on his part, is pointed out which shows contributory negligence on his part, and we have already shown that the driver’s contributory negligence is not imputable to him.

We have, therefore, before us in the final analysis a case of injury to plaintiff which a jury would be authorized in finding was produced through the concurrent and contributing negligence of defendant railway company and the driver Rugg, the negligence of the driver not being imputed to plaintiff. Where there are several tortfeasors,. more than one negligently contributing to the injury, an action may be maintained against them jointly or severally. Pruner v. Railway, 173 Mich. 146 (139 N. W. 48); Cuddy v. Horn, 46 Mich. 596 (10 N. W. 32, 41 Am. Rep. 178) ; Malmsten v. Railroad Co., 49 Mich. 94 (13 N. W. 373).

The plaintiff introduced in evidence an ordinance of the city of Detroit, entitled:

“An ordinance to regulate the speed of street railway cars within the corporate limits of the city of Detroit.”

The trial court construed this ordinance, giving force to the view that the ordinance was, among other things, designed to promote an efficient and regular 'service. Plaintiff insists that the construction is erroneous, and calls attention to an ordinance approved April 15, 1904, which it is thought deals with the latter subject. This ordinance, however, is not before us, and we do not deem it wise to determine this question without both ordinances before us.

It follows from what has been said that the case must be reversed, and a new trial ordered. Plaintiff will recover costs.

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


author: Stone, J.

text:
    WEIHE v. MACATAWA RESORT CO.
    ■'1. Injunction — Public Parks — Evidence.
    On a bill by lot and cottage owners against a summer resort corporation to restrain tbe erection of an addition to a hotel owned by defendant on lapd claimed to be a public part, evidence held, to show that such addition was necessary and would not interfere with certain drive-' ways.
    2. Dedication — Intention oe Grantors.
    The question of dedication of land for public purposes is one largely of intention.

      3. Same.
    Evidence held, insufficient to show dedication of land of a summer resort corporation used for hotel purposes for a public park.
    4. Highways and Streets — Establishment by Prescription.
    The mere permissive use of a private road by the public, however long continued, will not make it a public highway.

    5. Corporations — Injunction—Scope oe Authority — Ultra Vires.
    The question of whether the acts of a summer resort corporation are beyond its powers cannot be raised in a suit to enjoin it from making an addition to one of its hotel buildings on the ground that the land on which the hotel is located is a public park.
    Appeal from Ottawa; Cross, J.
    Submitted June 28, 1917.
    (Docket No. 71.)
    Decided September 27, 1917.
    Bill by William A. Weihe and another against the Macatawa Resort Company to restrain the erection of a hotel. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      Wilkes & Stone, for plaintiffs.

      Diekema, Kollen & Ten Cate, for defendant.

       Authorities passing on the question as to public easements acquired by prescription, are collated in a note in 11 L. R. A. 55.

   Stone, J.

This case is here upon the appeal of the plaintiffs from a decree of the circuit court in chancery dismissing the bill of complaint. The bill was filed by two lot and cottage owners in Macatawa Park to restrain the defendant from erecting a building on property claimed to be a public park. Some of these cottages face upon a parcel of land designated upon the plat of Macatawa Park as “Hotel Park.” The defendant company .operates Macatawa Park as a summer resort. The defendant commenced to construct an addition to its hotel building, located on the land designated as “Hotel Park,” and the plaintiffs by their bill of complaint seek to restrain the erection of such building, claiming that the land so designated as “Hotel Park” is in fact a public park, and that the defendant has no right to erect an addition to the hotel building on the same, to the injury of plaintiffs. The learned circuit judge who heard the case upon the issue joined reached the following conclusion:

“From the proofs it appears that the land designated as ‘Hotel Park’ has been used as a site for a hotel since the plat was made, and that the land so designated as ‘Hotel Park’ was reserved as a site for the erection of hotels, and was not dedicated as a public park. The land not being a public park, the plaintiffs have no right to complain of the erection of an addition to the hotel now situated on the land designated as ‘Hotel Park.’ ”

The history of Macatawa Park embraces a period of more than 35 years. There have been four corporations or organizations, to wit, the Macatawa Park Association, the Macatawa Park Company, the Macatawa Association, and finally the present company, the Macatawa Resort Company.

The Macatawa Park Association was incorporated in 1881 under Act No. 122, Pub. Acts 1877, entitled “An act for the incorporation of associations for yachting, hunting, boating, fishing, rowing, and other lawful sporting purposes.” An examination of this act will show that no provision was there made for platting real estate.

Act No. 69, Pub. Acts 1887, provided for the formation of corporations for the purpose of purchasing, holding, improving, and disposing of lands or lots for summer resorts. This act also provided for the platting of grounds in accordance with chapter 32 of Howell’s Annotated Statutes of 1882, and provided that the roads, ways, and avenues should in all respects be deemed private ways, and only open to the public upon such conditions and restrictions as the trustees should prescribe.

Proceeding as though they were organized under this last-named act, but without any change in their organization, the officers of the Macatawa Park Association, on the 5th day of May, 1888, filed a plat of their grounds, seemingly in accordance with the provisions of this statute, and containing no dedication whatever of the streets, ways, and alleys to the public. All of the above-named corporations have operated the same resort, and have succeeded to all of the rights, privileges, and property of their respective predecessors.

When the Macatawa Park Association transferred its property to the Macatawa Park Company, its successor, the following resolution was adopted by the board of directors of the Macatawa Park Company on January 24, 1890:

“It was resolved to incorporate under the laws of 1889 with a capital stock of $50,000. All stock of present stockholders is to be exchanged, share for share, all to be paid by stock in said new corporation-, and that the property of the Macatawa Park Association be conveyed to the new corporation, provided the same is completed and adopted by all the stockholders at a meeting to be held for that purpose January 28, 1890.”

In accordance with the above resolution and the action of the stockholders of the Macatawa Park Association, a deed was made to the Macatawa Park Company on June 23, 1890. The Macatawa Park Company thus organized was reincorporated under Act No. 230, Pub. Acts 1897 (2 Comp. Laws 1915, § 10034 et seq.) This act repealed the act of 1889 (Act No. 164, Pub. Acts 1889) under which the Macatawa Park Company was organized, but expressly provided in section 22 (2 Comp. Laws 1915, § 10054) that the repeal of the act of 1889, and other acts, should not dissolve any corporation formed or existing under them—

“and all corporations of the nature of corporations authorized to be organized under this act, now organized and existing under said several acts in this section-mentioned, or either of them, and all corporations which have attempted to organize and are now doing business under said acts, or either of them, shall be deemed and taken to be organizations under this act, and all rights, obligations and liabilities contracted, acquired or incurred by any such corporation thereunder, shall continue of the same force and effect as though such acts or laws had not been repealed, and all such corporations from and after taking effect of this act, shall be subject to all the provisions hereof as fully as though such corporation had been organized hereunder, and such corporations may continue to carry on the business specified in the articles of association, under the provisions of this act, as lawfully as if said acts, mentioned in this section, were not repealed.”

Thus it appears, that the Macatawa Park Company retained all rights and privileges conferred by the act of 1889, and such additional rights and privileges as were conferred by said act of 1897.

In 1906 the Macatawa Park Company conveyed all of its property to the Macatawa Association. This was done by deed and bill of sale, and all of the shares of stock held by the stockholders in the Macatawa Párk Company were deposited in escrow, to be delivered to the new organization as soon as it had been completed. The Macatawa Association thus succeeded to .all of the rights, property, and privileges of its predecessor, and was practically a continuation of the same corporation, under a new name. An attempt was made to sell the stock of this new company, but it failed, and later the fourth company, this defendant, was organized, and became the owner and possessor, through deed and bill of sale, of all of the property, rights, and privileges, of the Macatawa Association, and assumed all of the association’s liabilities. The deed contained the following clause:

“Including in and transferring in this conveyance all the statutory rights and control over the property conveyed hereby, and the parks and streets^ contained within said recorded plats, and also all riparian rights, including docks, landings, bathing, and boathouses, and all easements and privileges; it being the purpose and intent hereof to convey all the property, rights, interests, and claims of said first party.”

We think it appears that the defendant is the successor of these former organizations, and possesses the powers and privileges possessed by any of its predecessors. Among those powers and privileges section 4 of said act of 1889 mentions the following:

“Owning, holding, leasing or disposing of in any manner, and subject to any lawful conditions, real estate situated in this State, not exceeding five hundred acres of land, and all personal property and personal estate which may be necessary to enable such company to carry on the operations and business mentioned in their articles of association; and also, that said association shall be capable of improving, draining and ornamenting their lands, erecting and maintaining hotels, churches and other buildings for their own use and those of visitors to such lands, and may construct docks necessary for the business of such association, and make such provision as may be necessary for supplying their lands, and the people thereon, with water for sanitary and fire purposes.”

The purpose of the defendant to carry on this business is clearly set forth in article 2 of its articles of association. The power to own and operate a hotel is expressly given. Before the plat of 1888 was in existence, there was another plat of Macatawa Park which was never recorded. Running through “Hotel Park” from east to west there are two walks, the most northerly of which is known as Interlake walk, and the southerly one is known as Michigan walk. These walks extend from Black Lake on the east to Lake Michigan on the west. The first hotel on “Hotel Park” was built south of Michigan walk before the plat of 1888 was made. Running through this land marked “Hotel Park” there has been a road used by the public and cottage owners. Some- of the materials used for buildings located near “Hotel Park” were drawn over this road. There are from 300 to 400 cottages erected in Macatawa Park.

Plaintiffs own lots 45 and 46; and the large hotel known as the Annex, and covering the space between Interlake and Michigan walks, was built after some of the cottages on these lots were erected. The new addition proposed to be built by the defendant to the Hotel Annex would run in a northeasterly direction fronting on Interlake walk, and would be situated immediately south of lot 46. It is the claim of the defendant that this proposed structure would in no way interfere with the driveway running from Bay road to and along the north side of Hotel Annex; that the ground upon which it would stand is wild and unimproved, no improvements having been made between this driveway and Interlake walk; that the driveway running from Bay road through “Hotel Park” to and along the north side of the hotel is 16 feet wide, and it is proposed to bridge this over, so as to leave the driveway undisturbed.

We think that this claim of the defendant is supported by the evidence. As to the necessity for this proposed addition there can be no question under the evidence. The plaintiffs are not stockholders in the defendant corporation.

It is the claim of defendant that “Hotel Park” was never dedicated as a public park; that it was never intended to be a public park, and has always been used for hotel purposes. It is clear from the evidence that a hotel had been erected upon this site before the plat of Macatawa Park Company was made and filed. That the question of dedication is one largely of intention is supported by the authorities generally. The intent is the vital principle. Lee v. Lake, 14 Mich. 12 (90 Am. Dec. 220) ; Vance v. Village of Pewamo, 161 Mich. 528 (126 N. W. 978). Many authorities in other jurisdictions might be cited.

We are of the opinion that the finding of the trial court is fully sustained by the evidence. In fact, we have examined this record with care, but in vain, to find any evidence that “Hotel Park” was ever dedicated as a public park. It has been used as a site for hotel purposes, and never as a public park.

We have examined the cases cited by plaintiffs upon this question, and think that in their facts they are readily distinguished from the instant case, and therefore not applicable here.

Under our own decisions, it must also be held, upon this record, that there is no public highway through “Hotel Park” extending from Bay road to Lake Michigan. The mere permissive use of a private road by the public, however long continued, will not make it a public highway. Stickley v. Township of Sodus, 131 Mich. 510 (91 N. W. 745, 59 L. R. A. 287) ; South Branch Ranch Co. v. Emery, 191 Mich. 188 (157 N. W. 419).

In our opinion, the question of claimed ultra vires acts of the defendant is not before us in this case. The question is not even suggested in the bill, but if it were, it could not be litigated in this case. International Harvester Co. v. Eaton Circuit Judge, 163 Mich. 55, 67 (127 N. W. 695, 30 L. R. A. [N. S.] 580, Am. & Eng. Ann. Cas. 1912A, 1022).

The decree of the circuit court is affirmed, with costs to the defendant.

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


text:
    WARREN v. FEDERAL LIFE INSURANCE CO.
    1. Contracts — Terms and Conditions — Rescission.
    Where a person, accepts a contract and acts upon it he iso hound to know its terms and conditions, and he cannot accept its benefits, or a part thereof, and reject the balance, or plead ignorance of its conditions.
    2. Insurance — Life Insurance — Opinions—Fraud;
    Statements by an insurance company, which has reinsured a life policy, that dividends ought to operate to reduce very materially the charges against the policy, even though they did not entirely offset them, constitute merely an expression of an opinion as to what might occur in the future and cannot be made the basis of an action for fraud, nor for the recovery of the premiums paid.
    3. Same — Payment of Premiums — Voluntary Payments.
    Payments of premiums by an insured on a life policy are voluntary, where the insured is during all the period insured and has the benefits of the policy, and they cannot be recovered back.
    4. Payment — Voluntary Payments — Protest.
    Payment made under protest does not change a voluntary into an involuntary payment.
    5. Insurance — Life Insurance — Reinsurance—Statutes.
    A reinsurance contract is not within the provisions of 2 Comp. Laws, § 7217 (2 Comp. Laws 1915, § 9351), providing that life insurance companies shall not make any insurance contract with any citizen of the State which shall not state distinctly the amount of life benefits, manner of payment, period of continuance and amount of premiums, and that any person who may have paid money therefor may recover same back at any time within six years from date of payment.
    6. Same.
    Even if a reinsurance contract is within the provisions of 2 Comp. Laws, § 7217 (2 Comp. Laws 1915, § 9351), it complies with the statute where the original policy states n9t only the amount of ^insurance, but the monthly premium, and the insurer assumed all obligations of the policy, subject to the terms of a reinsurance contract between it and. a third insurance company with which the risk had been previously reinsured, and the legality of the contract is unaffected by a demand of a greater than the specified premium.
    7. Same — Life Insurance — Reinsurance — Noncompiiance with Statute — Estoppel.
    In an action against an insurance company, which had re-insured a life risk, to recover premiums paid, held, that plaintiff was estopped from invoking the provisions of 2 Comp. Laws, § 7217 (2 Comp. Laws 1915, 5 9351), relating to the requirements of life insurance policies and giving the right of action for recovery of premiums paid under policies not complying with the statute.

    Error to Eaton; Smith, J.
    Submitted June 8, 1917.
    (Docket No. 21.)
    Decided September 27, 1917.
    Assumpsit by Frederick G. Warren against the Federal Life Insurance Company for premiums paid on a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      Cummins, Nichols & Rhoads. (C. A. Atkinson, of counsel), for appellant.

      Frank A. Dean, for appellee.

       On the question of liability of reinsurer, see notes in 8 L. R. A. (N. S.) 845; 44 L. R. A. (N. S.) 317.

   Stone, J.

This is an action in assumpsit to recover premiums paid by plaintiff to the defendant upon a life insurance policy. The case, was tried by the court without a jury, and the trial court made a written finding of facts and law, and rendered a judgment for the plaintiff in the sum of $1,559.06, damages, with costs of suit.

The'main facts are not in substantial dispute, and they are stated by the defendant and appellant substantially as follows:

On October 15, 1898, the Merchants’ Life Insurance Company of Detroit issued its policy upon the life of the plaintiff for $2,000. The company was what is termed “an assessment company.” The premium specified in the policy was $4.20 per month. It contained a clause giving the right to the company, should any emergency arise, through epidemic or otherwise, whereby the premiums should be insufficient to meet the mortuary requirements, to levy additional premiums to meet such emergency. This clause is referred to in the record as the “assessment” or “safety” clause.

On November 1, 1900, the plaintiff was reinsured in the Union Life Insurance Company of Indiana. That company accepted and assumed all liability arising under the policy issued by the first-named company, without any qualifications or restrictions. That was also an assessment company.

On July 16, 1904, the plaintiff was reinsured by the defendant, the Federal Life Insurance Company. It is not an assessment company, but is what is known as an “old-line,” or “legal reserve company.” The defendant assumed the policy of the Union Life Insurance Company only in accordance with the contract of reinsurance between it and the said Union Life Insurance Company made on the same day. The certificate issued to the plaintiff by the defendant was substantially as follows:

“This policy of reinsurance is issued to Frederick G. Warren, to be attached to certificate or policy No. 5510 of the Union Life Insurance Company of Indiana, and subject to all the provisions of the contract of reinsurance between said Union Life Insurance Company and this company, dated July 16, 1904, constitutes policy No. 7184 of the Federal Life Insurance Company of Chicago, Illinois.
“Whereas, the said Federal Life Insurance Company does hereby assume the foregoing certificate or policy of said Union Life Insurance Company in accordance with the terms of said reinsurance contract; Now therefore, this policy and the said certificate to which it is to be attached, constitute the holder thereof, a policy holder of the said Federal Life Insurance Company, and the said Federal Life Insurance Company hereby assumes and guarantees any liability which may hereafter be established on account of such original policy or certificate, subject to the terms and conditions hereof, and of said reinsurance contract; provided that all premiums required to maintain such policy or certificate in force shall be paid to said Federal Life Insurance Company, as provided in the said original policy, or certificate, and said reinsurance contract. No change of policy or certificate further than the attachment of this reinsurance policy to said policy or certificate of the said Union Life Insurance Company, is necessary in order to bind the said Federal Life Insurance Company to the payment of the same, subject to the provisions hereof, and of the said reinsurance contract.”

The reinsurance contract between the defendant and the Union Life Insurance Company, dated July 16, 1904, was received in evidence, and is contained in the record. Article 22 of this agreement expressly provided that the “assessment” or “safety” clause, above referred to, should be eliminated, thereby placing the policy upon an old-line, or legal reserve basis. Article 21 of said contract provided that the necessary reserve not having been accumulated for the proper protection of the policies reinsured and transferred thereunder, the defendant should be authorized to charge against such policies assumed by it a reserve lien, based upon the American table of mortality, with 3% per cent, interest. This same clause provided that in cases where the premium or assessment theretofore paid by any policy holder in the Union Life Insurance Company was less than the premium rate of the Federal Life Insurance Company for a policy of the same amount and similar in form, then the defendant was authorized to require the payment in cash of the difference in premiums, or to charge the same against said policies, as an additional lien, from and after the date of the contract. The plaintiff testified that he accepted all of these policies, including the one issued by the defendant.

On the same day that the insurance contract was made and the certificate of reinsurance issued to the plaintiff, the defendant sent a letter to plaintiff, advising him of his reinsurance, and stating that such reinsurance was subject to the terms of the contract, between the Union Life Insurance Company and the defendant, dated July 16, 1904, and further advising the plaintiff that the defendant was, and always had been, strictly an old-line legal reserve company. This letter the plaintiff admits he received, about the time that he received his policy of reinsurance. On the same date, the Union Life Insurance Company issued a circular letter- to its policy holders, advising them of the reinsurance in the defendant company, and stating that the assessment clause above referred to had been eliminated from each jpolicy, and that all such policies were placed upon a legal reserve basis. This letter the plaintiff testified he must have received. It appeared in evidence that the plaintiff was a man of intelligence and business experience, and had been engaged in the life, accident, and fire insurance business.

On August 2, 1904, the plaintiff, in a letter to the defendant, acknowledged the receipt of- his policy and stated:

“I see that policy is subject to all the provisions of the contract between the Union Life and your company; hence, not knowing what those provisions are, I would be pleased if you would inform me.”

On August 5; 1904, defendant’s secretary replied to this letter by a letter which the trial court characterized as of the “spider and fly” grade. The substance of it was as follows:

“We have your favor of recent date making remittance for monthly premium on policy 7184. Proper receipt for the same is herewith inclosed.
“The contract about, which you make inquiry was passed upon by a committee named by the policy holders of the Union Life, and on this committee was an expert insurance man and two leading attorneys of the State of Indiana. After a careful and extended consideration, the contract was given the unanimous approval of the committee, and thereafter executed by the officers of the company in compliance with instructions given them by the policy- holders in meeting assembled. The assessment or safety clause formerly embraced in the Union Life policies is absolutely eliminated, and everything in connection with the policies will hereafter be based upon definite and specific guaranties. Each policy holder will hereafter be allowed thirty days of grace for the payment of his premiums, without regard to .whether this was provided for in his original policy. The operation of the contract is to place each policy, as nearly as,possible, upon the same basis, as would have been the ckse had it been issued originally by our company which is now and always has been a legal reserve company. In placing the Union Life policies upon a legal reserve basis, they are surrounded by all of the protection which the legal reserve laws give to policy holders in ‘old-line’ life insurance companies.” ■

There was no further correspondence between the parties for nearly a year, and the plaintiff continued to pay the premiums of $4.20 per month as provided in his original policy.

Frank Hill, an agent of the defendant, testified that on April 24, 1905, he visited the plaintiff at Charlotte, and then explained to him fully concerning his policy, the liens thereon, and the difference in the premiums, and the steps which the plaintiff might take to relieve his policy from the liens. He could not remember whether he showed the plaintiff the reinsurance contract or not. He identified certain cards, memorandum, and reports which he made at that time, and which were filed with the company, in which the figures with reference to the status of the policy, and the liens thereon, a,nd the difference in the premiums between the Union Life and the Federal Life were clearly stated. The plaintiff was at first inclined to deny this claimed visit of Mr. Hill, but afterwards stated that he could not remember it, but it was undisputed that on May 22, 1905, a little less than 30 days after Mr. Hill’s claimed visit, the plaintiff made out an application for the removal of the impairment lien. There is no doubt that Mr. Hill visited the plaintiff, and explained these liens; otherwise there is no accounting for the fact that within a month thereafter the plaintiff made formal application to have the impairment lien removed. There was then some correspondence between the plaintiff and the medical examiner of defendant relative to a discrepancy in plaintiff’s age. On June 6, 1905, the plaintiff was advised by the defendant that the impairment lien against his policy had been removed, and a credit of $21.60, formerly deducted from such impairment lien, had then been credited to plaintiff’s reserve lien. Following this, no further correspondence was had between the parties until on or about February 8, 1907. In the meantime plaintiff continued to pay the old premium of $4.20 per month.

On February 8, 1907, the defendant wrote to the plaintiff, stating that after a careful computation made of the expense of carrying his policy, it had been shown that the cash payment which he had been paying theretofore, which was the old Union Life rate, was insufficient to meet the current cost of carrying his policy, and that the company was obliged to notify the plaintiff that it would be necessary thereafter for him to pay in cash the full Federal premium of $11.92 monthly. In this letter the defendant also stated that the difference between the Union Life and the Federal Life premiums had been theretofore charged as a lien against the plaintiff’s policy, and quoted from article 21 of the reinsurance contract, which granted to the defendant the right to require the payment in cash of the said difference in premiums, or to charge the same against the policy as an additional lien. It was also stated in this letter that if the plaintiff desired to exchange his policy for a new one, with premiums as above indicated, the company would arrange to do so. It is clear from the record that, after receiving defendant’s letter of February 8, 1907, the plaintiff replied to such letter, and remitted the increased premium as requested.

The letter of March 5, 1907, from the defendant to the plaintiff, seems to be the letter upon which this action for alleged fraud and deception is based. In this letter the plaintiff was again advised specifically as to the lien for reserve that had been charged against his policy, with interest on the same, and of the lien arising because of the difference in premium between the Union premium and the Federal premium, with the interest on the same. These liens, with the interest at that time, as stated, amounted to $689.46. It is not claimed by plaintiff that these liens were not in strict accord with the reinsurance contract. This letter contained this clause:

“Your policy is a participating policy and not a nonparticipating policy, as you may suppose. At the end of five years from the date of its reinsurance by this company, we agree to distribute a dividend to the persistent policy holders who are then in good standing, and at the end of each five-year period thereafter. This dividend, in your case, ought to operate to reduce very materially your charges, even though it does not entirely offset them.”

The record shows that the plaintiff’s policy was afterwards credited with certain dividend additions, amounting to $53.44.

On March 7, 1907, plaintiff replied to defendant’s letter of March 5th, stating that he did not fully understand defendant’s proposition, saying:

“You say that my insurance is carried upon your books at age 55, that being my age when policy was issued by the Union Life. If I am to pay $11.92 monthly, besides a lien upon my policy, wherein is the benefit to me of continuing the policy?”

The plaintiff in this letter then discussed the question of taking out a new policy, and made some inquiry as to premiums. On March 9, 1907, the defendant replied to this letter, quoting a premium of $123.88 for age 60, stating:

“There would be the reserve for the three years premium past due, which would amount to $263.76. This reserve would be charged against your policy, bearing 5% interest annually.”

This same letter stated that if the plaintiff desired to avail himself of such policy, it would be necessary to have the reserve lien placed against the same, as stated. The matter seems to have been dropped at this point, and there was. no further correspondence between the parties until December 6, 1915, a period of over 8 years. During all of this time, the plaintiff continued to pay the monthly premiums of $11.92, and made no objection or protest of any kind, as to such payments; and during all of this time, of course, the plaintiff was insured for $2,000, less the liens that existed against the policy. On December 6, 1915, plaintiff addressed a letter, to the defendant, asking it to inform him as to the present standing of his policy, and as to the amount of the dividends accrued thereon, etc.

On December 8, 1915, the defendant replied to this letter, advising the plaintiff fully as to the status of his policy. From this letter it appears that the only difference in the condition of the policy on December 8, 1915, and March 5, 1907, was that on December 8, 1915, the policy had been credited with a dividend addition of $58.44, and charged with the accumulated interest on the reserve liens. So that where in 1907 the total charge for liens and accumulated interest against the policy was $689.46, on December 8, 1915, it was $976.86, the difference arising entirely from the items of accumulated interest on the liens against the policy. This letter was replied to by the attorney for the plaintiff, demanding the return of all the premiums paid, and he quoted from the clause in the letter of March 5, 1907, that the dividend in plaintiff’s case “ought to operate to reduce very materially his charges, even though it did not entirely offset them,” and that the plaintiff, believing these representations to be true, had continued to pay the premiums due on his policy.

The defendant proposed extended amendments to the findings of fact and law, which were all refused by the trial court, and exceptions were duly filed to such refusal. Exceptions were also filed to the findings of fact, for the reason that such findings were against the clear weight of evidence, and also that the findings of fact did not support the judgment. These questions and many others are raised by the assignments of error, on defendant's appeal.

It is said by appellant that the principal questions involved in the case are:

(1) Do the facts in the case give rise to any cause of action on the ground of fraud or misrepresentation, whereby the plaintiff is entitled to recover insurance premiums paid by him?
(2) Is the reinsurance contract of the defendant in violation of section 7217, 2 Comp. Laws (2 Comp. Laws 1915, § 9351), and, if so, has the plaintiff a right to recover premiums by reason thereof?

It is urged in argument by the appellant that the policy contract was fair. It clearly appears that the. defendant company was what is known as an old-line company; that is, it was required to maintain a legal reserve. All of the previous companies in which the plaintiff had been insured were assessment companies, containing “assessment” or “safety” clauses. It was provided in the contract that this clause should be eliminated, and that the policies should be placed upon a legal reserve basis. The defendant, under its contract with the Union Life, took over the policy holders at the age at which they were insured in the Union Life. The plaintiff had been carried in the last-named company at the age of 55 for about 4 years, at a rate of premium which would not create any legal reserve for that period of time. It was necessary, therefore, for the defendant, in order to comply with its charter, and the law, to charge plaintiff’s policy with a lien equivalent to the legal reserve for that period of time, and which would have been created by the payment of the larger premium had the plaintiff been insured in the defendant company in the first instance.

It appears also that by the terms of the reinsurance contract, the defendant had the right to charge as a lien against plaintiff’s policy the difference between the Union Life rate of $4.20 per month and the regular Federal rate of $11.92 per month, or, at the option of the defendant, it might require the difference in premium to be paid in cash. Not only was this contract fair to the plaintiff, but, as the evidence showed, it was necessary in order for the defendant to comply with its charter and the statutes of this State.

Complaint is made by the plaintiff that this policy contract was unfair because the longer plaintiff lived the less his beneficiary would receive. It is manifest that, in all life insurance policies the longer a man lives the less he gets so far as the difference between the face of his policy and his premiums are concerned, and in case there are liens existing against the policy, and there are no payments of interest on the same it must follow that the longer a man lives and does not pay either the principal or interest on the liens against his policy, the less value will the policy be to his beneficiary upon his death. But that does not make the policy unfair.

It is also the claim of the plaintiff that he was never informed of the terms and conditions of the reinsurance contract referred to. The policy above set forth gave him explicit notice of the existence of such contract, and that his policy was expressly subject to all of its terms and conditions. He was also advised of the general nature of the contract. He was a man of experience and business judgment. When a man accepts a contract, and acts upon it as the plaintiff did in this case, he is bound to know its terms and conditions. He cannot accept the benefits of a contract, or part of it, and reject the balance, or plead ignorance of its conditions. Converse v. Blumrich, 14 Mich. 109 (90 Am. Dec. 230); Sanborn v. Sanborn, 104 Mich. 180 (62 N. W. 371) ; Moore v. Township of Kenockee, 75 Mich. 332 (42 N. W. 944, 4 L. R. A. 555); Mishawaka Woolen Manfg. Co. v. Stanton, 188 Mich. 237, 250 (154 N. W. 48, L. R. A. 1917B, 651), and cases there cited.

In his declaration the plaintiff bases his right of action, in so far as fraud is concerned, solely upon defendant’s letter of March 5, 1907, and in particular upon that part of it stating that the dividends ought to ' operate to reduce very materially the charges against his policy, even though it should not entirely offset them. We do not think that such statement was a misrepresentation of any fact. It was but the mere expression of an opinion, and afforded no basis for an action of fraud or misrepresentation of fact. In Myers v. Building Ass’n, 117 Mich. 389 (75 N. W. 944), Justice Moore, in speaking of similar statements, said:

“It is claimed on the part of the association that the statements of its officers as to how soon the shares of stock would attain their full vaLue, and how low the rate of interest to the borrower would be, are but matters of opinion, and cannot be treated as fraudulent representations. We think this contention is sustained by the following authorities: Lake v. Loan Ass’n, 72 Ala. 207; Hammerslough v. Savings Ass’n, 79 Mo. 80; American Building & Loan Ass’n v. Bear, 48 Neb. 455 (67 N. W. 500).”

See, also, Bristol v. Braidwood, 28 Mich. 191.

Counsel for plaintiff claims that the instant case is governed by Stoddard v. Loan Ass’n, 138 Mich. 73 (101 N. W. 50). A reference to that case will show that the cases are distinguished. In fact that case refers to the Myers Case with approval. In Smith on Frauds, § 7, p. 17, that author says:

“Representations* having reference to the future merely, however much relied upon, do not constitute a cause of action or. a defense.”

Many other cases in other jurisdictions are cited by defendant in support of this doctrine. In the very nature of the statement it could be nothing more than the expression of an opinion as to what might occur in the future, and under the law cannot be made the basis of an action for fraud, nor for the recovery of the premiums plaintiff paid to defendant. Dieterle v. Enamel Co., 143 Mich. 416 (107 N. W. 79).

We are of the opinion also that under all of the authorities the payments made by the plaintiff were all voluntary payments. He was during all of the period insured, and had the benefits of the policy. Under such circumstances the payments cannot be recovered back. Wheeler v. Hatheway, 58 Mich. 77 (24 N. W. 780); Tompkins v. Hollister, 60 Mich. 485 (34 N. W. 551); Francis v. Hurd, 113 Mich. 250, 256 (71 N. W. 582); Vereycken v. Vanden Brooks, 102 Mich. 119 (60 N. W. 687).

Payment made under protest does not change a voluntary into an involuntary payment. City of Detroit v. Martin, 34 Mich. 170 (22 Am. Rep. 512); Congdon v. Preston, 49 Mich. 204 (13 N. W. 516). Many other cases outside of Michigan might be cited to the same effect.

It is the claim of the plaintiff that he has a right to recover by virtue of the provisions of section 7217, 2 Comp. Laws (2 Comp. Laws 1915, § 9351). This statute provides that life insurance companies shall not make any insurance contract with any citizen of this State, “which shall not distinctly state therein the amount of such life benefits, the manner of payment, the period of the continuance thereof and the amount of the annual, semi-annual or quarterly premium” and that:

“Any person who may have paid moneys therefor, shall be entitled to recover the same back, from the person to whom it was paid * * * by action of assumpsit to be brought at any time within six years after such payment.”

It is the claim of the defendant, not only that a reinsurance contract is not within the meaning of this statute, but that if it were, the policy contract in this case complies in every respect with the provisions of the statute. It is urged that the original policy in the Merchants’ Life Insurance Company states, not only the amount of the insurance, but the monthly premium; that the certificate of reinsurance which defendant issued assumed all of the obligations of this contract or policy, subject to the terms and conditions of the reinsurance contract between it and the Union Life Insurance Company; that so far as the contract itself was concerned, it specified upon its face the premium to be paid, and that if under its reinsurance contract with the Union Life, the defendant demanded of the plaintiff more than was specified in the policy contract, that demand, in and of itself, did not affect the legality of the contract in so far as this statute is concerned. We are of the opinion that this position of the defendant is correct, and, further, that under the circumstances of this case the plaintiff should be held- estopped from invoking the provisions of the statute.

By section 15 of chapter 18 of the judicature act (Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 12587), it is provided that in cases tried before the court, either party may file exceptions to the findings of facts, that such findings are against the clear weight of the evidence, and may assign error upon such exceptions, and upon appeal the same shall be reviewed by this court.

The defendant has invoked this statute. We are of opinion that the findings of facts in the court below were against the clear weight of the evidence. For this and the other reasons stated herein the judgment of the court below is reversed, with costs to the appellant, and no new trial will be granted.

Kuhn, C. J., and Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred. Ostrander, J., did not sit.


text:
    LIPP v. JACOBS.
    1. FRAUDULENtCON VEYANCES — EVIDENCE—SUFFICIENCY—STATUTES,
    The requirements of 3 Comp. Laws, § 10203 (5 How. Stat. [2d Ed.], § 12864), relating to a prima fade ease in suits begun by a bill in aid of execution, are met where plaintiff introduces the judgment in an action against a person exchanging property with plaintiff for fraudulent representations as to the exchanged property as alleged in the bill of complaint, the execution and levy, and the record thereof and the conveyance from plaintiff to the purchaser and her husband, and evidence tending to show that the whole of the consideration paid for the property conveyed by the deed was paid by the purchaser.
    2. Same — Biel in Aid of Execution — Sufficiency of Allegations — Relief.
    Where a judgment at law had been obtained for fraudulent representations as to exchanged property, a bill in aid of execution alleging that the purchaser caused the deed from plaintiff to run to the purchaser and her husband for the purpose of making them tenants by the entirety, so that the premises would not be subject to execution levy, and that title was so taken to hinder, delay, and defraud the creditors of the purchaser, and for the purpose of defrauding plaintiff out of her just dues and demands, and to prevent her realizing upon any judgment she might secure against the purchaser by reason of the fraud practiced upon plaintiff, was sufficient to warrant relief so far as the deed gave any title to the husband of the purchaser.

    3. Same.
    The mere fact that an execution creditor is hersélf the grantor in a deed does not preclude the maintenance by her of a bill in aid of execution against the purchaser.
    4. Same.
    Evidence held, sufficient to show that the conveyance was made to the purchaser and her husband at the request of the purchaser.

      5. Same.
    Under 3 Comp. Laws, § 9167 (3 Comp. Laws 1915, § 12897), providing that all real estate of any debtor, including legal and equitable interests in lands acquired by parties to contracts for sale and purchase of land, including lands fraudulently conveyed with the intent to defeat, delay or defraud his. creditors, shall be subject to execution where a contract for the exchange of real estate is entered into and one purchaser taires title to the exchanged property in the names of herself and husband for the purpose of defrauding the seller and other creditors, the interest of the purchaser may be subjected to execution.
    Appeal from Lenawee; Hart, J.
    Submitted June 7, 1917.
    (Docket No. 11.)
    Decided September 27, 1917.
    Bill in aid of execution by Clara C. Lipp against Carrie Jacobs and another. From a decree for plaintiff, defendants appeal.
    Affirmed.

      Baldwin, Alexander & Bussell, for plaintiff.

      James W. Helme, for defendants.

       On condition precedent to equitable remedies of' creditors in case of fraudulent assignment, see note in 23 L. it. A. (N. S.) 118.

   Stone, J.

The bill of complaint filed in this cause was in aid of execution. Prior to the 8th day of November, 1913, the plaintiff was the owner of a certain house and lot in the village of Blissfield, Mich., and the defendant Carrie Jacobs was the owner of a farm of 120 acres situated in Monroe county. On the date aforesaid the plaintiff and said defendant entered into a contract which was as follows:

“This contract, made and entered into this 8th day of November, 1913, by and between Carrie Jacobs, party of the first part, and Clara C. Lipp of the second part, witnesseth:
“Said first party, for and in consideration of said second party deeding, by warranty deed, the following described property, viz.: The south forty-eight (48) feet of lot No. seventeen (17) of Giles’ addition to Blissfield village, according to a recorded plat thereof, and the further payment on March 1, 1914, of two thousand ($2,000) dollars in cash and the execution of a mortgage for eight thousand ($8,000) dollars payable on or before five (5) years from March, 1914, bearing interest at the rate of five (5%) per cent, per annum, payable annually, with the privilege granted to pay five hundred ($500) dollars or any multiple thereof at any time, hereby agrees to convey by warranty deed and furnish an abstract of title showing a good merchantable title to the following described property, to wit: The west half of the southeast quarter of the southeast quarter of section 34; also the southeast quarter of the southeast quarter of said section 34 — both in town seven (7) south, range six (6) east, in Summerfield township, Monroe county, Michigan, and containing one hundred twenty (120) acres of land, more or less, together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining. Said first party further agrees to install fourteen (14) stanchions in barn, to repair outside entrance to house cellar, also to repair roof on house, all without cost to second party.
“It is mutually agreed that each of the parties hereto shall pay all taxes for the year 1913 on the respective properties to be by them conveyed, and each party shall on March 1, 1914, deliver to the other party a proper receipt showing that such taxes have been by them paid. It is further agreed and understood that said second party shall have the income from the rental until March 1, 1914, on the property deeded to first party, and that first party shall accept title subject to a certain lease to Stephen H. Leonard which said lease expires April 1, 1914.
“In witness whereof, the respective parties hereto have hereunto set their hands and seals this 8th day of November, 1913.
“Carrie Jacobs,
“First Party.
“Clara C. Lipp,
“Second Party.” ■

On the day of the date of this contract plaintiff executed a deed of the house and lot. At the request of the defendant Carrie Jacobs, the deed was made to her and her husband, Charles A. Jacobs, the other defendant, as husband and wife. Later Carrie Jacobs made a deed of her farm to plaintiff, who paid $2,000 in cash and gave back a mortgage in compliance with the contract. On the 28th day of May, 1915, plaintiff obtained a judgment in the circuit court for the county of Lenawee against defendant Carrie Jacobs for damages in the sum of $1,997.75 and costs, which costs were afterwards taxed at the sum of $100.95.

Counsel for plaintiff in their brief assert that the action was to recover damages resulting from fraudulent representations made by defendant Carrie Jacobs to plaintiff prior to and on November 8, 1913, regarding the farm afterwards conveyed to plaintiff. It is stated by the defendants’ counsel that there was no evidence in the case in support of this assertion as to the basis of the judgment. We find the bill definitely makes the claim, and the same is not very distinctly covered by the answer. The circuit judge found in the instant case as follows:

“Plaintiff afterwards brought a suit on the law side of the circuit court for this county [Lenawee] against the said Carrie Jacobs, claiming fraud by the said Carrie Jacobs in the sale of said farm.”

We find no evidence in the record upon this subject, and the certificate of the circuit judge was that the record contains the substance of all the evidence given or read upon the hearing. An execution was. issued out of said court on said judgment, and a levy made on the house and lot, which had been conveyed by said plaintiff to the defendants; said levy having been made June 21, 1915.

The bill of complaint in this case was filed on the 3d day of September, 1915, against the defendants in aid of execution, and prayed that the title to the premises described in the bill may be decreed to be in said Carrie Jacobs, and that said Charles A. Jacobs be decreed to have no interest therein whatever, and that the sheriff of said county be directed to proceed in the execution of said writ of fieri facias, and to advertise and sell the said lands and premises by virtue thereof in due form of law for the payment and satisfaction of said judgment of plaintiff, with interest and costs, and that the purchaser or purchasers at such sale take all the right, title, and interest of the said Carrie Jacobs in and to said lands. It is alleged in the bill of complaint that the said Charles A. Jacobs paid no portion of the purchase price of the said house and lot.

At the close of the plaintiff’s proofs counsel for defendants moved to dismiss the bill, “on the ground that plaintiff had submitted no proofs that entitled her to a decree, and that a bill to aid execution was not the proper remedy.” No proofs were offered on the part of the defendants. The case was heard upon pleadings and proofs offered by the plaintiff, and the court granted the relief prayed for. The defendants have appealed.

There are two main questions discussed by counsel:

(1) Did the proof offered support the decree entered?

(2) Is a bill in aid of execution the proper remedy?

Section 12864, 5 How. Stat. (2d Ed.) provides that in all suits begun by a bill in aid of execution the complainant shall make a prima facie case by introducing in evidence the judgment against the principal defendant, the execution, with the levy thereon indorsed, and proof of the conveyance complained of. The burden of proof shall then be upon the judgment debtor, or the person or persons claiming through or under him, to show that the transaction or transactions are in all respects bona fide, etc. No proof having been offered by the defendants, it cannot well be said that they had discharged any burden, if there was one resting upon them. The record shows that the plaintiff introduced in evidence the judgment as alleged in the bill of complaint, the execution and levy, and the record thereof, and the conveyance from the plaintiff to Charles A. Jacobs and Carrie Jacobs. There was also evidence, beyond what was required of the plaintiff, tending to show that the whole of the consideration paid for the property conveyed by the deed was paid by the defendant Carrie Jacobs. If a bill in aid of execution was the proper remedy, we think the plaintiff satisfied the statute by her evidence.

This brings us to the second question, as to whether a bill in aid of execution was the proper remedy. It is urged by defendants’ counsel that, the deed complained of having been made by the plaintiff, she had no legal right to file a bill to have the deed set aside on the ground of fraud. It is also urged that the defendant Carrie Jacobs never had any title to the house and lot, and that the conveyance complained of was not made by her. There is much discussion'in the briefs of counsel as to whether an attempt is made to set aside the conveyance, or to set aside that part of the conveyance which purports to vest any title in the defendant Charles A. Jacobs. The allegations of the bill are as follows:

"Your oratrix further shows and charges the fact to be that the said Carrie Jacobs caused the deed to said premises, made by your oratrix as aforesaid, to run to the said Charles A. Jacobs and Carrie Jacobs as husband and wife, for the purpose of making them tenants by the entirety, and placing the title to said premises so that said premises would not be subject to execution levy, and said title was so taken to hinder, delay, and defraud the creditors of said Carrie Jacobs, and for the purpose and with the intention of defrauding your oratrix out of her just dues and demands, and to prevent her realizing upon any judgment that your oratrix might secure against the said Carrie Jacobs by reason of the fraud practiced by the said Carrie Jacobs upon your oratrix as aforesaid.”

We think the prayer of the bill, already referred to, sufficient to warrant relief in that regard. Really it is not claimed that the entire deed was void, but that that portion of it which gave any title to Charles A. Jacobs was fraudulent and void, and the plaintiff claims that the deed gave Carrie Jacobs a complete title to the premises.

We do not think there is much force in the claim that plaintiff cannot ask and obtain relief as to the deed in question, simply because it was executed by her. If the plaintiff were some other judgment creditor, the same objection would probably be made that the legal title had never been in the defendant Carrie Jacobs. It is urged by defendants’ counsel that there was no evidence that the conveyance was made to the two defendants at the request of Carrie Jacobs; but we think that this may be fairly inferred from the circumstances of the case, as the matter inured to their benefit.

It will be noted that the defendant Carrie Jacobs acquired her first interest in the premises by virtue of the contract entered into between her and the plaintiff. The husband, Charles A. Jacobs, is nowhere mentioned in this contract. This was a good and valid contract of purchase of real estate, and gave such an interest to Carrie Jacobs as would be subject to levy on execution. Section 11321, 4 How. Stat. (2d Ed.), 3 Comp. Laws 1915, § 12897, provides, among other things, as follows:

“All the real estate of any debtor, including legal and equitable interests in lands acquired by the parties to contracts for the sale and purchase of lands, whether in possession, reversion or remainder, including lands, fraudulently conveyed, with intent to defeat, delay or defraud his creditors, and the equities and rights of redemption hereinafter mentioned, shall be subject to the payment of his debts, liabilities and obligations, and may be levied upon and sold on execution as hereinafter provided.”

A subsequent portion of the same section provides:

“That in case of a levy upon the equitable interest of a judgment debtor, the judgment creditor may, be-, fore sale, institute proceedings in aid of * * * execution, to ascertain and determine the rights and equities of said judgment debtor, in the premises so levied upon.”

It is urged by plaintiff that it is not important that Carrie Jacobs did not have complete title to the premises in question, or that she did not make the conveyance; that she had an interest upon which she has attempted to create a charge, so that it could not be reached by her creditors. Section 11417, 4 How. Stat. (2d Ed.), 3 Comp. Laws 1915, § 11998, is as follows:

“Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or in goods or things in action, or of any rents or profits issuing therefrom, and any charge upon lands, goods or things in action, or upon the rents or profits thereof, made with the intent to hinder, delay or defraud creditors or other persons of their lawful suits, damages, forfeitures, debts or demands, and every bond or other evidence of debt given, suit commenced, decree or judgment suffered, with a like intent, as against the persons so hindered, delayed or defrauded, shall be void.”

It is the claim of plaintiff’s counsel that her position is sustained by the following cases: Foster v. Whelpley, 123 Mich. 350 (82 N. W. 123); Newlove v. Callaghan, 86 Mich. 297 (48 N. W. 1096, 24 Am. St. Rep. 123); Michigan Beef & Provision Co. v. Coll, 116 Mich. 261 (74 N. W. 475); St. Louis Hoop & Stave Co. v. Danforth, 160 Mich. 226 (125 N. W. 5). In Foster v. Whelpley, supra, the judgment debtor, Whelpley, held a part-paid certificate to primary school lands. He assigned an undivided one-half interest in the premises to his wife and later the balance due was paid to the State and the patent issued to the judgment debtor and his wife as tenants by the entireties. Execution was levied upon the lands in question, and a bill in aid of execution was filed to reach the undivided interest of the judgment debtor and subject it to sale. It was contended by the defendants that, as the judgment debtor had never had the legal title to the lands levied upon, the complainant had mistaken his remedy. Mr. Justice Moore, in speaking for this court, said:

“It is an answer to the last claim to say that, under the express provisions of the statute and the decisions of this court, the undivided interest which Mr. Whelpley had in the land, prior to the issuance of the patent, could be reached by execution” citing section 1332, 1 Comp. Laws (1 Comp. Laws 1915, § 507) ; Kercheval v. Wood, 3 Mich. 509; Allen v. Cadwett, 55 Mich. 8 (20 N. W. 692).

We think the question is clearly decided in St. Louis Hoop & Stave Co. v. Danforth, supra. That was a combined creditors’ bill and bill in aid of execution. The portion which we here refer to was in aid of execution. The fourteenth paragraph of the bill of complaint in that case was as follows:

“Your orator further shows that after the indebtedness upon which the said several judgments were rendered had accrued, to wit, on the 6th day of December, 1900, said Elmer M. Danforth purchased from Henry A. Macomb and William Stanton, executors of the last will and testament of Mary E. Macomb, deceased, and Stephen K. Stanton, William Stanton and Louise Stanton, his wife, Robert L. Stanton and Grace Stanton, his wife, and De Lagnel Berier the premises described in paragraph 7 herein for the consideration of $2,375 ; that with the purpose and intention of defrauding your orator and his other creditors, and for the purpose of hindering and delaying your orator in the collection of its just claims, and to prevent a levy and sale of said premises under and by virtue of said writs of fieri facias, the said Elmer M. Danforth procured and obtained a deed of said premises to be made and delivered to himself and his wife, Annettie Danforth, defendant herein, and that the consideration therein mentioned, or at least one-half of said consideration, was paid by the said Elmer M. Danforth, and that the said Elmer M. Danforth is the owner of at least one-half of said premises.”

Among the things prayed for in the bill was the following:

“That the said conveyance of the said described property, namely, lot 915, being a part of the Stanton farm, so-called ‘private claim 473,’ and being so numbered and described by and according to the recorded plat of a portion of said farm recorded in the register’s office of the county of Wayne in liber 6 of plats, p. 26, to the said Elmer M. Danforth and Annettie Danforth, may. be held and decreed subject to the said levies of your orator, and that the same, or the title and interest of the said Elmer M. Danforth therein, may be sold to satisfy said judgments, costs, and the interests thereof, and the costs of this suit.”

The decree below in that case authorized the sale of the entire property. It was in this court modified, so as to provide for the sale of an undivided one-half of the property. It will be observed that in that case the title never had been in Elmer M. Danforth; that he had made a purchase of it, and then procured and obtained a. deed of the premises to be made to himself and wife. We think the case almost parallel with the instant case in that respect. It shows that an execution had been levied thereon and was permitted to be sold to satisfy the judgment and costs.

Counsel for the defendants, in support of the proposition that a bill in aid of execution will not lie in this case, has cited the following cases: Trask v. Green, 9 Mich. 358; Maynard v. Hoskins, 9 Mich. 485; Lee v. Enos, 97 Mich. 276 (56 N. W. 550) ; French v. Newberry, 124 Mich. 147 (82 N. W. 840) ; Bliss v. Tyler, 159 Mich. 502 (124 N. W. 560). We have examined these cases in connection with the other authorities cited, and think that they are readily distinguished on their facts from the instant case. We think that it cannot be seriously contended that a contract interest in lands is not subject to sale on execution under the statute which we have already referred to. Welsh v. Richards, 41 Mich. 593 (2 N. W. 920) ; Grover v. Fox, 36 Mich. 453, 459.

The learned circuit judge found that the house and lot in question was the sole property of the defendant Carrie Jacobs, in so far as the judgment in evidence was concerned, and that she was the real owner of said house and lot, and that the sheriff might proceed to sell the same upon said execution levy. That defendants did not see fit to introduce any evidence in the case was neither the fault of the plaintiff nor of the court.

We think this bill filed in the aid of execution was the proper remedy, and the decree of the circuit court is affirmed, with costs.

Kuhn, C. J., and Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred. Ostrander, J., did not sit.


text:
    DATTNER v. WEISZ.
    1. Justices of the Peace — Appeals—Pleading—Laches — Discretion of Court — Abuse of Discretion.
    Where nearly four months had elapsed after an appeal was taken in an action in the justice’s court by one broker against another to recover plaintiff’s share of a commission for assisting in the sale of a saloon, stock, fixtures and business before plaintiff filed the notice for trial of the case in the circuit court, and nearly five months elapsed from the time the appeal was taken to the time of the trial, and during such time defendant took no steps to form an issue, the court did not abuse its discretion in refusing to allow defendant to file a plea of the general issue, with notice of failure of consideration and illegality of contract in place of a plea of the general issue only.
    2. Same — Appeals—Pleading—Judicature Act — Court Rules.
    Under the judicature act, Act No. 314, Pub. Acts 1915, chap. 78, § 17 (3 Comp. Laws 1915, § 14417), providing that on filing the return of a justice of the peace the circuit court shall become possessed of the cause the same as if it had been originally commenced in the appellate court, and Circuit Court Rule No. 23, § 2, providing that any affirmative defense such as payment, release, satisfaction, discharge, license, fraud, duress, estoppel, statute of frauds, illegality, that an instrument is either void or voidable, want of consideration and any defense which by other affirmative matter seeks to avoid the legal effect or defeat plaintiff’s action as stated in the declaration, and any ground which, if not raised by the pleadings, would be likely to take the other party by surprise, must be set forth in notice added to defendant’s plea, the defense of illegality of contract and want of consideration cannot be proved under simply a plea of the general issue in a case in the circuit court appealed from the justice’s court.
    3. Brokers — Commissions — Terms oe Contract — Evidence — Question por Jury.
    Where the evidence was conflicting as to whether or not by the terms of the contract plaintiff had agreed to assist defendant broker in the sale of another saloon, and plaintiff had failed to do so, and that in that regard the contract for commissions differed from that testified to by plaintiff, the court erred in directing a verdict for plaintiff.
    Error to Wayne; Van Zile, J.
    Submitted June 21, 1917.
    (Docket No. 107.)
    Decided September 27, 1917.
    Assumpsit in justice’s court by Henry Dattner against Andrew Weisz for moneys had and received. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Reversed.

      Cornelius & Ring, for appellant.

      Harry J. Lippman, for appellee.
   Stone, J.

This case originated in justice’s court in the city of Detroit, where the defendant did not appear, and where a judgment was entered for the plaintiff on June 30, 1916. An appeal was taken by the defendant to the circuit court for the county of Wayne, and the justice made return of said appeal on July 1, 1916. The case appears to have been placed on the appeal docket for trial, and came on for trial on November 17,1916, upon notice by the plaintiff. After a jury was impaneled, counsel for defendant called the court’s attention to the fact that there was no issue in the case, and asked the permission of the court to file a plea of the general issue. Counsel for plaintiff consented to the filing of such plea, but defendant’s counsel immediately thereafter asked leave to file a plea of the general issue with notice of failure of consideration, and illegality of contract. This was objected to by plaintiff’s counsel, he claiming that plaintiff should have some notice, and called attention to the fact that the appeal had been taken by the defendant, after judgment by default. After a colloquy between the court and counsel, it was finally ruled that the plea of the general issue only would be permitted to be filed. This ruling was excepted to by defendant’s counsel, and no adjournment or postponement of the trial was asked for by either party, and the trial proceeded.

The declaration was on the common counts in assumpsit, and there was a bill of particulars by the plaintiif for moneys had and received, $250 and interest. The plaintiff gave evidence tending to show that he had assisted the defendant in making a sale of a saloon, stock, fixtures, and business in the city of Detroit, and that they were to divide the commission of $500 equally, and that the defendant had received the commission of $500, but refused to divide the same with the plaintiff, although defendant had given the plaintiff his check for $250, but that payment by the bank had been refused for lack of funds. The defendant sought to show that the sale included the sale of a liquor license, and that the contract was illegal and void, and hence that there was no valid consideration for the promise, if made. The court excluded such proposed evidence, ruling that the same could not be received under the plea of the general issue, to which ruling defendant’s counsel excepted. Similar offers and rulings were repeated upon the trial. The defendant further claimed that the plaintiff, as a part of the contract was to assist him in the sale of another saloon, which the plaintiff had failed to do, and claims ing that the contract differed from the one testified to by the plaintiff in that regard. Such evidence was received upon the trial.

At the close of the plaintiff’s evidence defendant’s counsel moved the court for a directed verdict, upon the ground that it conclusively appeared by plaintiff’s own testimony that the subject-matter of the sale consisted of a saloon and of a license, and that it was an illegal sale, against public policy, and that the plaintiff could not recover. This motion was denied, whereupon defendant’s counsel said that the only testimony he desired to offer was along that line, whereupon the court directed a verdict and judgment to be entered for the plaintiff.

The defendant has brought the case here upon writ of error, and the first assignment of error is that the court erred in refusing to allow defendant to enter a plea of the general issue with notice of failure of consideration and illegality of contract. There are a number of assignments of error relating to the introduction of evidence, which we do not think contain any merit. The 12th assignment of error is to the effect that the court erred in refusing to permit defendant to introduce evidence to show the illegality of the contract. The 13th assignment of error is that the court erred in refusing to direct a verdict for the defendant at the conclusion of the plaintiff’s case, upon the ground that the agreement entered into was illegal. The 14th assignment of error is to the effect that the court erred in refusing to submit to the jury the question of fact raised by the evidence.

It is the claim of the defendant that the court erred in refusing to allow him to file a plea of the general issue, with notice of failure of consideration and illegality of contract. We think that this matter was addressed to the sound legal discretion of the trial court, and we cannot say that that discretion was abused. Nearly four months had elapsed from the time the appeal was made before the plaintiff filed the proecipe or notice for the trial of the case in the circuit court, and nearly five months elapsed from the time the appeal was taken to the time of the trial of the case. During that time it does not appear that the defendant took any steps to put himself in condition for the trial of the case by the forming of an issue. The court, under the circumstances, and then only by consent of plaintiff’s counsel, permitted defendant to file a plea of the general issue. Courts are usually loath to permit amendments at the trial that will make a continuance necessary, or injure the opposite party if compelled to proceed to trial at once. We find no error in the ruling of the court upon this subject.

It is apparent that the evidence offered by the defendant, tending to show illegality of contract and want of consideration, could not have been received under the plea of the general issue, and the court was correct in ruling out such testimony, and in refusing to direct a verdict for the defendant upon that ground. Section 17 of chapter 78 of the judicature act (3 Comp. Laws 1915, § 14417), provides that, on filing the return of the justice, the circuit court shall become possessed of the cause the same as if it had been originally commenced in said appellate court, and subject to the same rules and regulations. Section 2 of Circuit Court Rule No. 23 provides as follows:

“An affirmative defense, such as payment, release, satisfaction, discharge, license, fraud, duress, estoppel, statute of frauds, illegality, that an instrument or transaction is either void or voidable in point of law, want or failure of consideration in whole or in part, and any defense which by other affirmative matter seeks to avoid the legal effect of or defeat the cause of action set forth in the plaintiff’s declaration, and any ground which, if not raised on the pleadings, would be likely to take the opposite party by surprise, must be plainly set forth in a notice added to the defendant’s plea.”

Clearly, the defense of illegality of contract and want of consideration could not be made under a plea of the general issue. There was no error, therefore, in the ruling of the court in this regard.

The 14th assignment of error is to the .effect that the court erred in refusing to submit to the jury the question of fact raised by the evidence. An examination of the record discloses that there was a disputed question of fact as to whether or not by the terms of the contract the plaintiff had agreed to assist the defendant in the sale of another saloon, which the plaintiff had failed to do, and that in that regard the contract made differed from the one testified to by the plaintiff. Such evidence was received upon the trial. We are constrained to hold, therefore, that the court erred in directing a verdict for the plaintiff, and in not submitting that question to the jury under proper instructions.

For this error the judgment of the circuit court is reversed, and a new trial granted, with costs to the appellant.

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