text:
    JASNOWSKI v. JUDGE OF THE RECORDER’S COURT OF THE CITY OF DETROIT.
    1. Pood — Oleomargarine—Statutes.
    The manufacture and sale of oleomargarine as defined In section 6, Act No. 63, Pub. Acts 1913 (2 Comp. Laws 1915, § 6400), is lawful.
    2. Same — Adulteration—Criminal Law — Statutes — Repeal by Implication.
    Act No. 63, Pub. Acts 1913 (2 Comp. Laws 1915, §§ 6395-6402), authorizing and regulating the manufacture and sale of oleomargarine, as therein defined, said definition, not including coloring matter in its ingredients, did not by implication repeal Act No. 22, Pub. Acts 1901 (2 Comp. Laws 1915, §§ 6393, 6394), prohibiting the manufacture and sale of oleomargarine containing coloring matter in imitation of yellow butter, and an information charging sales in violation of said act should not have been quashed . for said reason.

    Mandamus by Charles H. Jasnowski, prosecuting attorney, against William F. Connolly, judge of the recorder’s court of the city of Detroit, to compel respondent to set aside an order quashing a certain information.
    Submitted February 21, 1917.
    (Calendar No. 27,702.)
    Writ granted March 29, 1917.

      Charles H. Jasnowski, Prosecuting Attorney (Eugene P'. Berry, of counsel), for relator.
    In 1899 the legislature passed an act (No. 147) entitled:
    “An act in relation to the manufacture and sale of oleomargarine, or imitation butter.”
    In 1901 it passed an act (No. 22) entitled:
    “An act to prevent deception in the manufacture and sale of imitation butter.”
    It contains two sections, the first reading:
    “No person, by himself or his agents, or servants, shall render or manufacture, sell, offer for sale, expose for sale, or have in his possession with intent to sell, any article product or compound made wholly or in part out of any fat, oil, or oleaginous substance or compound thereof, not produced from unadulterated milk or cream from the same, which shall be in imitation of yellow butter produced from pure unadulterated milk or cream of the same: Provided, that nothing in this act shall be construed to prohibit the manufacture or sale of oleomargarine in a separate and distinct form, and in such manner as will advise the consumer of its real character, free from coloration or ingredient that causes it to look like butter”
    —the second providing a penalty for violation of the act. The act of 1899 was considered by the court in Shepherd v. Judge of Recorder’s Court, 175 Mich. 193 (141 N. W. 556). Thereafter the legislature, in 1913, enacted Act No. 63 (2 Comp. Laws 1915, § ■6395 et seq.), entitled:
    “An act to regulate the manufacture, display, advertisement and sale of oleomargarine or imitation butter and to prevent fraud and deception therein and to provide penalties for violations thereof, and to repeal act number one hundred forty-seven of the Public Acts of eighteen hundred ninety-nine, entitled ‘An act in relation to the manufacture and sale of oleomargarine, or imitation butter.’ ”
    It also repealed all acts or parts of acts inconsistent with the provisions thereof.
    Like the act of 1899, the statute of 1913 contains in its title notice that the manufacture of oleomargarine is in some way regulated. In terms the-acts are both of them addressed, not to manufacturers as such, but to persons who sell, expose, or offer for sale, or have in possession with intent to sell or exchange, oleomargarine. The manufacture of the* substance as a process is not forbidden. Indirectly the manufacture is regulated because the manufacturer must sell his product, and so must offer or expose it for sale, and there is in section 6 of both acts a list of the substances which for the purposes of the act are to be known and designated as oleomargine. Included in this list is “all substances heretofore known as oleomargarine, oleo, oleomargarine oil, butterine, lardine,” etc., “and all mixtures and compounds” of these substances, “all lard extracts and tallow extracts,” etc., “made in imitation or semblance of butter, or when so made, calculated or intended to be sold or used as butter or for butter.”
    The act is not disobeyed if persons sell what is by the act so designated if the vessel/ package, roll, or parcel of it sold bears a certain printed notice, and if a certain verbal and a printed notice is given to the purchaser at the time of the sale. Unlike the law of 1899, the one passed in 1913 does not require that the printed or verbal notice required to be given by the seller shall state the name of each and every article or ingredient used or entering into the composition .of the substance sold.

      In the January, 1915, term of the recorder’s court of the city of Detroit an information was filed charging that May Pixley did have in her possession with intent to sell and did sell a certain quantity of oleomargarine, a compound made in part of certain fats, oils, and oleaginous substances, not produced from unadulterated milk or cream from the same, “and which substance or compound was in imitation of yellow butter produced from pure unadulterated milk and cream from the same, in this, that said compound, to wit, said oleomargarine, purchased as aforesaid, contained foreign yellow coloring matter which caused said oleomargarine to have the appearance and be in imitation of yellow butter produced from the pure milk and cream of the cow, contrary to the form of the statute,” etc.
    The recorder was of opinion that the act of 1913 was intended to supplant and repeal the act of 1901, and that it did by implication repeal it, and therefore quashed the information. This court is asked to issue its mandate to the recorder to set aside his order and ruling and restore the said information. The single question presented is whether the act of 1901 is repealed by the later statute.

      On the use of coloring matter in oleomargarine as adulteration, see note in 25 L. R. A. (N. S.) 1234.

   Ostrander, J.

(after stating the facts). It is clear that the manufacture and sale of oleomargarine is lawful in this State. What oleomargarine is is defined in the law of 1913. The definition excludes coloring matter. If matter is introduced for the purpose of coloring it, a compound not recognized in the law as oleomargarine is produced. The manufacture and sale of such a compound is prohibited by the law of 1901. This is the effect of the reasoning of the opinions in People v. Rotter, 131 Mich. 250 (91 N. W. 167); Bennett v. Carr, 134 Mich. 243 (96 N. W. 26). See, also, People v. Phillips, 131 Mich. 395 (91 N. W. 616). In People v. Rotter it was said of the act of 1899 that it does not prohibit sales of oleomargarine which is not tainted with the prohibited ingredients. In Bennett v. Carr it was said:

“The legislature has defined oleomargarine which may be manufactured and sold in this State.”

It was further said:

“These two statutes [1899 and 1901] must be construed together. The article sold by respondent is clearly authorized by the first act. [It was yellow, but contained no coloring matter.] The latter act does not in terms prohibit its sale and manufacture. It does prohibit the use of any substance for the sole purpose of producing yellow color. The use of such coloring matter was the sole mischief then known to exist and the only danger to be apprehended and guarded against.”

The repeal of the act of 1899 and its practical reenactment in 1913 does not impair the effect of this reasoning. The respondent may sell oleomargarine— the substance defined in the act of 1913 — by complying with the conditions of the act, and may not sell oleomargarine containing an ingredient or matter not named in the statute of 1913, introduced for the purpose of coloring the substance to imitate yellow butter. The acts of 1901 and of 1913 are not conflicting, and necessarily the earlier act is not repealed by the later one.

The recorder should not, for the reason given, have quashed the information. The writ will' issue.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    PEOPLE v. AYRES.
    1. Rape — Evidence—Physical and Mental Condition — Resist- ' ANCE.
    In a prosecution for rape, proof of the mental and physical condition of the prosecuting witness at the time of the commission of the alleged offense was competent as affecting the question of the resistance she offered, or could offer.
    2. Same — Evidence—Related Acts.
    Testimony of respondent’s attempt to have sexual intercourse with prosecutrix on the preceding night, and the resistance she then offered, was admissible for the purpose of negativing her willingness to engage in sexual relations with respondent, and also for the purpose of discovering what took place at the time the claimed offense was committed.
    3. Same — Complaint—Admissibility. .
    The fact that prosecutrix complained to her mother as soon as she could, which was within 24 hours after the commission of the alleged offense, was admissible, where ' no details of the complaint were stated.
    4. Same — Trial—Criminal Law.
    Where respondent claimed that the charge of the prosecutrix was wholly false, the seating of several ladies immediately behind and close to the prosecutrix, during the trial, no other seats being available, was not prejudicial, it being assumed that the rights of the accused to a fair trial were jealously guarded against any unseemly demonstration.
    5. Same — Instructions—Question eor Jury.
    Where the substance of respondent’s requests to charge were given, except for a directed verdict, the ultimate •question as to respondent’s guilt was for the jury.
    6. Criminal Law — New Trial — Time for Motion — Statutes.
    Under Act No. 315, Pub. Acts 1909 (3 Comp-. Laws 1915, § 12307), providing that the several circuit courts shall on all lawful days and times be deemed to be in actual session from the first day of one term until the next succeeding term, notwithstanding the formal adjournment of a regular or special session, and section 11963, 3 Comp. Laws (3 Comp. Laws 1915, § 15836), providing that a motion for a new trial may be made in the same term in which the trial is had or at the next^ term thereafter, where respondent was convicted of rape at the February term and the next term began May 10th and ended Saturday, September 4th, a motion for a new trial filed Monday, September 6th, which would have been the first day of the September term but for the fact that it was Labor Day, was not filed in time to give the court jurisdiction.
    Error to Mecosta; Barton, J.
    Submitted January-11, 1917.
    (Docket No. 155.)
    Decided March 29, 1917.
    Otis Ayres was convicted of rape.
    Affirmed.

      John E. Dumon, Prosecuting Attorney, for the people:

      Cogger & Cogger, for respondent.
   Ostrander, J.

Respondent has been convicted of rape. The proceedings which resulted in his conviction are reviewed upon a record which contains the testimony given at the trial, the motion for a new trial, which was denied, and the exceptions taken and relied upon are discussed under the following headings:

“ (1) The admissibility of evidence proving or tending to prove the commission of a former act or offense for the purpose of showing probable commission of the act charged.
“(2) Did the court err in overruling respondent’s motion to strike out of the answer of the witness Hazel Martin the following language: T was so sleepy I could hardly undress.’
“ (3) The right of the people to show that the complaining witness Hazel Martin complained to her mother as to the alleged offense on the day following the day alleged in the information.
“(4) Did the court err in permitting the sheriff to escort eight ladies into the courtroom and seat them immediately behind and, within close proximity to the prosecutrix while she was giving her testimony, and while there was room for the ladies to be seated with the rest of the audience?
“(5) Admissibility of evidence on the part of the people as to the health of the prosecutrix prior to coming to Big Rapids.
“(6) Did the court err in permitting the witness Dr. Karschner to answer the following question: ‘What would be the result of a tampon treatment upon the hymen?’
“(7) The admissibility of evidence as to the effect of the falling of the womb upon the general health and nervous condition of a girl 18 years and 8 months old.
“(8) Respondent’s requests to charge.
“(9) The motion for a new trial made on the part of the respondent should have been granted by the court.”

The prosecuting witness was more than 18, less than 19, years old. The court instructed the jury that the people must prove, not only the act of sexual intercourse, but beyond a reasonable doubt and to a moral certainty that there was “the utmost reluctance and resistance” on the part of the prosecutrix, that, if she consented to the act during any part of it, there was not the opposing will necessary to be established in order to convict, and that it was not claimed that respondent accomplished what he did by threat or physical violence, or that the prosecutrix was overcome by fear. Again the court said that to convict the jury must be satisfied beyond a reasonable doubt that the prosecutrix did everything she could do under the circumstances to prevent the respondent from accomplishing his purpose. “If she did not do that, it is not rape.”

Testimony for the people tended to prove that the prosecutrix and the. respondent occupied adjoining rooms in the barracks, or headquarters, of the Salvation Army, to which organization both belonged, in Big Rapids, Mich.; the prosecutrix having gone there from Lansing on January 29, 1915. The'respondent, his wife, and the prosecutrix lived at the barracks, or quarters; the prosecutrix doing housework and assisting in the meetings. Respondent’s wife went away in the afternoon of February 3d, and during the night respondent went into the room occupied by the prosecutrix, who was awakened by his attempt to get into the bed with her. He did get into the bed, but the resistance and expostulations of the girl were such that he returned to his own room. During the next day the prosecutrix did her work, and during the day she sent a wire to respondent’s wife asking her to come home. There was some conversation during the day between the prosecutrix and respondent, he praying with her or in her presence and asking for forgiveness for what he did the previous night. She was sick and disturbed, but did her work and went to the Bible study at 7 o’clock in the evening. While respondent was attending the meeting, she went upstairs and to bed, exhausted, and went to sleep. Some time during the night respondent again went to her room, got into the bed with her, and had intercourse with her, there being no one else in the house. She described in detail her efforts to protect herself. On the morning of February 5th she arose, got the breakfast, ate breakfast with respondent, wrote a letter and put it in the toe of a shoe belonging to respondent’s wife, and another note which she left on her dresser, and by the 12:45 p. m. train of that day set out for her home in Lansing, Mich., taking her clothing. There she at once complained to her mother about what had occurred.

The evidence of her resistance, as it appears in the record, is not as convincing as could be wished, when her experience of the previous, night is considered and the fact that entrance to her room seems to have' been unobstructed except by closed unfastened doors. It was competent to prove her mental and physical condition on the night of February 4th as affecting the question of the resistance she then offered, or could offer, and for this purpose to prove the state of her general health, that she was nervous and disturbed by a physical ailment, and that she was exhausted by loss of sleep and by the resistance she offered on the night of February 3d. The testimony concerning what occurred on the night of February 3d had, if believed, some probative value to negative desire or willingness on her part to engage in sexual relations with respondent. The events of»the two nights and days were so related that they were properly laid before the jury for the purpose of determining the relations of the parties and discovering what took place during the night of February 4th. This disposes of respondent’s first, second, fifth, sixth, and seventh contentions.

Prosecutrix complained of the affair to her mother as soon as she could, which was. within 24 hours after the committing of the alleged assault. No reason is suggested for ruling that the fact that she then complained, details of the complaint not being stated, could not be proven.

In determining the motion for a new trial, the court stated, in this, respect contradicting the affidavit of counsel, that “the rest of the courtroom being entirely occupied by spectators, and that being the only possible place in which they could sit,” the seating of the party of ladies, where they were seated by the sheriff and the presence of the ladies in the courtroom was not prejudicial to respondent, and not good ground for a new trial.

We accept the statement of the trial judge that other available space for spectators was occupied when the ladies entered and were seated, although when counsel made his objection to the proceeding he stated, and his statement was not then challenged, that there was then ample room to accommodate the ladies with chairs upon the floor of the courtroom. Respondent’s counsel appears to complain, not of the presence of the ladies in the courtroom, but rather of what he regarded as an ostentatious, calculated entry and seating of the visitors. It is assumed that in trial courts the right of the accused to a fair trial is jealously guarded, and that an unséemly demonstration, favorable or unfavorable to the accused, or to a prosecuting witness, will not be tolerated. It is not unseemly that women shall take an interest in. a trial like the one reviewed here, not from curiosity, but because of the peculiar nature of the issue and the trying position of the prosecutrix in the presence in which she finds herself. In this case the accused denied having entered the room of the prosecutrix on either of the occasions described by her. According to him and his testimony, her story of what occurred in her room on both occasions was wholly false. The issue being as indicated, it is not perceived how the entry and presence of these ladies as described could have affected the determination of the issue presented.

The court properly submitted the question of respondent’s guilt to the jury; none of the respondent’s requests except for a directed verdict being wholly refused. In different language, but in substance and effect, the essentials of instructions asked for were stated in the charge given. It cannot be seriously contended that the ultimate question was not one to be answered by a jury.

This cause was tried at the February, 1915, term of the circuit court, the term ending May 8, 1915. The next term of court began May 10, 1915, and ended September 4, 1915, which was Saturday. The motion for a new trial was filed September 6, 1915, which was Labor Day. The first day of the new September, 1915, term was Monday, September 6th; in fact, it was Tuesday, September 7th. Act No. 315, Pub. Acts 1909 (3 Comp. Laws 1915, § 12307), provides that the several circuit courts shall on all lawful days and times be deemed to be in actual session from the first day of one term until the next succeeding term, notwithstanding the formal adjournment of a regular or special term. It is objected that the motion was made too late, and upon authority of Nichols v. Circuit Judge, 185 Mich. 654 (152 N. W. 482), the objection is sustained, as it was in the court below. But, that respondent may not believe that a meritorious position is denied him upon a mere construction of an act of the legislature, we have, as the circuit court did, reviewed the 'showing for a new trial which was presented, and agree that it was properly denied.

No reversible error is made to appear, and the judgment is affirmed.

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


author: Bird, J.

text:
    SLOCUM v. SMITH.
    1. Brokers — Commissions—Frauds, Statute of — Construction.
    An, agreement by a real estate broker for commission on the purchase of a farm by a customer is within the provisions of Act No. 238, Pub. Acts 1913 (3 Comp. Laws 1915, § 11981 et seq.), providing that “every agreement, promise, or contract to pay any commission for or upon the sale of any interest in real estate,” shall be void unless in writing, said act applying to a purchase as well as to a sale.

    2. Same — Quantum Meruit.
    A judgment for plaintiff upon the quantum meruit for services actually performed cannot be sustained, being opposed to the rule followed in Paul v. Qrafiam, 193 Mich. 447 (160 N. W. 616).
    Error to Wayne; Lamb, J., presiding.
    Submitted January 9, 1917.
    (Docket No. 62.)
    Decided March 29, 1917.
    Assumpsit by James Slocum against George W. Smith for broker’s commissions. Judgment for plaintiff. ‘ Defendant brings error.
    Reversed.

      Campbell & Dewey, for appellant.

      Stellwagen & Mackay and Daniel E. Wade, for appellee.

      On the necessity of securing written contract from purchaser to entitle real estate broker to commission, see notes in 44 L. R. A..605; 46 L. R. A. (N. S.) 129.
      As to the necessity that agent’s authority to purchase or sell real property be in writing, to enable him to recover compensation for his services, see note in 9 L. R. A. (N. S.) 933.

   Bird, J.

The plaintiff is a real estate broker who deals exclusively in farm lands. He claims that in February, 1915, he purchased a farm known as the Rood farm near Romeo, consisting of 276 acres, for defendant, at his request, but that after he had arranged the terms of the purchase and the purchase had been consummated, defendant refused to pay him his commission. Defendant denies that plaintiff acted for him, and takes the position- that he supposed plaintiff was representing Mr. Rood, the vendor. Being unable to adjust their differences, plaintiff brought this suit, and recovered a judgment of $250.

Defendant insists that even if there were such an agreement as plaintiff claims, it is of no-'force because it was oral and within the prohibition of Act No. 238, Pub. Acts 1913 (3 Comp. Laws 1915, § 11981), which makes such agreements void unless in writing. Plaintiff meets this point by asserting that the agreement is not within the statute because it was an agreement to purchase real estate, and not one to sell real estate. The amendment of the statute of frauds referred to reads:

_ “Sec. 2. In the following cases specified in this section, every agreement, contract and promise shall be void, unless such agreement, contract or promise, or some note or memorandum thereof be in writing and signed by the party to be charged therewith, or by some_ person by him thereunto lawfully authorized, that is to say: :i: * * 5. Every agreement, promise or contract to pay any commission for or upon the sale of any interest in real estate.”

We think plaintiff’s construction of the statute is much too narrow. While it is true, as counsel say, that a purchase is not a sale nor a sale a purchase, it is /equally true that there cannot be a purchase without a sale, nor a sale without a purchase. The history of the reasons leading up to this legislation is- persuasive that the law was. intended to apply to an agreement for a purchase as well as a sale because one is a necessary complement of the other. .Both are clearly within the mischief which was intended to be remedied by the legislature, and we .think a reasonable and liberal construction of the statute will make it apply to an agreement for a purchase as well as to a sale of real estate.

But it is contended that if we should so hold, the judgment ought not to be disturbed because a recovery was had upon the' quantum meruit for services actually performed, and upon proof of their, value. This contention is in accordance with the rule heretofore followed by this court until the case of Paul v. Graham, 193 Mich. 447 (160 N. W. 616). A different rule was therein announced in construing this amendment to the statute of frauds, and one which is opposed to counsel’s contention. The judgment must be reversed, with costs to the defendant.

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


author: Kuhn, C. J.

text:
    VAN LONKHUYZEN v. DAILY NEWS CO.
    1. Libel and Slander — Clergymen—Libel Per Se — Directed Verdict.
    Where plaintiff, a clergyman,'" was coeditor of a church paper, which published an article headed “Playing with Fire,” criticizing the attitude of the American press, people, and President towards the European war, and advocating a petition of protest to the President against the “one-sidedness” of the attitude of the American press and people towards the Lusitania sinking, which petition plaintiff, who was not an American citizen, later circulated among the members of his church and others who were of Holland descent, an editorial in defendant newspaper, based upon said article and conduct of plaintiff, characterizing him as “an interloper, a meddler, and a spreader of distrust, discontent and sedition,” was libelous per se.

    2. Same — Justification—Opinions—Question fob Jury.
    Where defendant admitted the purpose of said libelous language was to hold plaintiff up to scorn and ridicule, it cannot be said that it was justifiable as a matter of law because the facts upon which it was based were published, and were true as a matter of fact; defendant not being satisfied with publishing the facts and allowing its, readers to draw their own conclusions.
    3. Same — Evidence—Prejudicial Error.
    The admission in evidence of the notes exchanged between the United States and Germany regarding the Lusitania, incident, which were published in defendant newspaper,, was not prejudicial error.
    4. Same — Evidence—Damages.
    The refusal of the court to allow witnesses to state what, effect the reading of the alleged libel had upon them was. error, said testimony being admissible upon the question of damages.
    5. Same — Evidence—Opinion.
    Where a witness was asked how the libelous article seemed, to make plaintiff feel, the answer was properly excluded, as opinion.
    6. Same — Evidence—Clergyman—Damages.
    Where defendant’s manager was asked if he knew that a public man would be injured more than a private individual, in articles of the kind complained of, his answer was erroneously excluded, it having a bearing upon the question' of damages.
    Error to Kent; Clement Smith, J., presiding.
    Submitted June 19, 1916.
    (Docket No. 106.)
    Decided March 30, 1917.
    , Case by John Van Lonkhuyzen against the Daily News Company for libel. Judgment for defendant upon a directed verdict. Plaintiff brings error.
    Reversed.

      Dorr Kuizema and Smedley & Linsey, for appellant.

      Norris, McPherson, Harrington & Waer, for appellee.
    Plaintiff,'a'minister of the gospel of the Christian Beformed Church in Grand Bapids, sued the defendant, the Daily News Company, for a newspaper libel. Plaintiff was also coeditor of the church organ known as “De Wachter,” in which were published articles on church and national life. In the issue of De Wachter of June 16, 1915, there appeared an article written by the plaintiff, which, translated, is as follows:
    “Playing with Fire.
    “Playing'' with fire — that is what the attitude of the American Press toward the war may well be termed. We see this too in Italy what the result is when passions are whipped up and gain the mastery. There the people do not rule but the government rules, although it be in the form of a constitutional monarchy. That government and thereby the nation was for many years bound by treaty with Germany and Austria. That nation under that alliance has grown great. It had enjoyed all the advantages. Just recently had it received a free hand, without right, to claim and take a part of Turkey in Africa. It mixed, with Germany’s support in so doing, a bitter drop in the cup of England and France, both having power and influence in the Mediterranean5 Sea and on the. coast of Africa. Now, in the hour of danger, she reverses her position.- With a. -faithlessness rarely found in history, Italy now, in this war of nations, throws her force against her allies who helped to make her great. Where is now the confidence and faith in one another? Moreover, bribed by a nation whose mouth is filled with Germany’s violation of treaties, and says, note well, and says that therefore she. declared jvar..upon Germany.
    “And what is the origin of all .this., in Italy? In a great measure, through the same means'used here to fire the passions. The public press in Italy played continually upon the hatred against Austria. The government did not desire war. But finally it was obliged to yield before the storm. Otherwise (so constantly was the threat) there would be revolution and barricades erected. It was uttered publicly. It hissed members, of the Royal Family publicly on the street. It wished to and should fight, and although Austria yielded nearly all that Italy could by means of a few victories, have desired. And the war is bn. Thousands shall fall and Italian hotheadedness shall be cooled in blood.
    “Well, now, America and the American press should use this experience as a mirror. What the result is when once war passions are become overwhelming. And America with all her varying nationalities may well be doubly careful. Since the Lusitania disaster one can see how among so peaceful a nation as the American the tendency is. What a one-sided presentation, to but express it mildly. What an overwhelming of the government and an assurance to the President that he take strong measures knowing the whole people are behind him, although this last might have an entirely different result. See, thus are wars made. Instead of seeing the matter from both sides and being careful, we arouse ourselves and the people, athough there was in this instance plenty of reason to speak more mildly. What were the people doing on a boat loaded with ammunition sailing under an -unfriendly flag in the war zone? They could just as well have been sitting on an ammunition wagon on the firing line. Far-reaching recklessness. And they would have us look surprised when everything blows up into the air! And from England, naturally, there is just the self-same treachery as during the Boer war, whereby the wives and children of the Boers were placed before English cannon, to which the Calvanist referred to recently. But to all that we are blind, as also that if England shall accomplish her intentions, hundreds of thousands of women and children in Germany abiding in hopeléssness shall die of starvation. About this cruelty which it has not been able to accomplish, but for which it is still striving', naturally nothing is said. Nor do we speak of the brutality that we are not on account of patriotism, but only for a handful of gold manufacturing amuranition and all kinds of war materials by which the war is continued and thousands and yet thousands are killed. Killed by American tools in a war in which America has no concern. For a handful of gold do these American citizens permit themselves to be used as murderers and at the same time with their mouths full of the brotherhood of man!
    “And all this because the public is weak and poisoned and permits itself to be more and more aroused by the press. More and more one-sided sympathy is being nurtured, and from it one-sided acts result which mock all so-called neutrality, so that before we know it, we too shall sit in the midst of war.
    “It is high time, therefore, that a mighty protest be made against this one-sidedness and this whipping-up of public sentiment to one side. So that something worse may not overcome us.
    “Perhaps it would not be bad if such a protest went out from the thousands of descendants of the Holland nation, a nation which up to this time, although lying in the midst of the storm of the peoples engaged in the war, yet through God’s goodness knows how to keep itself so wonderfully out of the war. We have a right to speak with the rest.”
    In the issue of De Wachter of June 30, 1915, appeared a protest or petition to the President. It was drawn up by the plaintiff and another minister of the same church. It is as follows, translated:
    “To the President,
    “White House,
    “Washington, D. C.:
    “Remembering your laudable appeal to the people for a day of prayer for the restoration of peace in Europe and a day of humiliation of ourselves before God Almighty that peace may be continued in our own country:
    _ “We, American citizens, believe that America’s attitude of late is not entirely in accordance with the noble motive which directed you when you set apart the mentioned day of prayer and humiliation, because:
    “Munitions and other instruments of warfare are sold in large quantities to o'ne side of the belligerent nations; the public press is inciting public opinion of Americans against our fellowmen and spreading feelings of hatred towards a friendly nation; the Lusitania incident — however much we too deplore the loss of so many lives — is issued one-sidedly; besides other questions the fact does not seem to be taken into consideration that English merchantmen are said to be instructed to ram submarines and are rewarded for accomplishing such;' that in this way the submarines,. are prevented from investigating a hostile vessel; that merchantmen also are really used as in-, struments of warfare; not to say that a Christian nation as America may now allow the plans of the starving of millions of innocents by a nation befriended to us.
    “We therefore earnestly ask you to use your power to do everything possible that the feelings of prayer and humiliation set forth by your note of November, 1914, may continue in our nation, that exportation of ammunition and instruments of warfare may be prohibited, the propagation of hostile utterances in public life be restricted, the investigation of the Lusitania incident be all-sided, and the dealing with other nations be done in the spirit of peace.
    “We, American citizens of Holland descent, beg to be allowed to submit the above to your consideration. We do so the more freely as descendants of a neutral people.
    “Most faithfully and respectfully.”
    This petition was not signed by plaintiff, but was circulated among the members of the church all over the country and a large number of signatures obtained.
    The libel complained of consisted in the following editorial appearing in the News, issue of July 2, 1915, published by the defendant company:
    “Playing with Fire.
    “ ‘The dreadful world-war now waging, with, its threat of involving us and with the very unhealthy upgrowth during the past 10 months of aggressive hyphenated Americanism in our own country has emphasized the need that we of this nation shall become wholly united. There should be no more hyphemated Americans. Bach American of foreign birth or origin should show his good citizenship by being wholly and without reserve and without divided allegiance an American citizen and nothing else.’
    “ — portions of an article written by Theodore Roosevelt, the most distinguished of American citizens of Dutch extraction.
    “It is to be sincerely and deeply regretted that a number of residents of Grand Rapids, of Holland origin, have signed a protest which is to go to President Wilson criticizing him for the kind of diplomacy he has adopted in dealing with the question of German encroachments upon American commerce.
    “They were led into this mares’ nest of un-Americanism by the Rev. John Van Lonkhuyzen, pastor of the Alpine Avenue Christian Reformed Church. The Rev. John Van Lonkhuyzen is not an American citizen. He has lived in this country only four years and has not yet taken out his first naturalization papers, nor even signified his intention of. so doing.
    “In other words, hundreds of good American citizens have been led into a grievous error by an alien, who owes no allegiance whatever to the Stars and Stripes.
    “All Americans of Holland parentage will be asked to sign the paper to be sent to President Wilson, which will criticize and seek to embarrass him, and which, at the same time, will reflect upon the good sense and the patriotism of the entire Holland branch of our foreign born population.
    “The petition or protest or whatever it may be, relates that the president’s attitude of late is not entirely in accordance with the motive which directed him when he called for a day to be set apart for prayer. It asks that the exportation of arms be stopped and that the investigation of the Lusitania incident be all-sided — inferring that the President has been biased.
    “The protest rings throughout with dissatisfaction and doubt of President Wilson’s motives.
    “The whole muss was stirred up by the Rev. Mr. Van Lonkhuyzen in an article published in his church weekly, ‘The Wachter,’ entitled, ‘Playing with Fire.’ The article deeply criticized the American press, and criticized the American people for announcing that they would stand behind the President in any step he might take, claiming that all the citizens might not stand behind the President. It stated that public opinion had been poisoned, that one-sided actions have been taken and one-sided policies pursued. Mr. Van Lonkhuyzen, in closing his incendiary article said:
    “ ‘It is highly necessary, therefore, that a powerful protest be brought against this one-sidedness and this stirring up of public opinion towards one side. We should prevent worse things than these while it is yet in our power.’
    “The News was somewhat amazed to find what virtually amounts to sedition in Grand Rapids. The first thing to do was to investigate the source. Consequently the News telephoned Mr. Van Lonkhuyzen, to find out his exact status.
    “ ‘Are you an American citizen, a naturalized American?’ was asked.
    “ ‘No, I am not an American citizen. I have never been naturalized,’ he replied.
    “ ‘Have you taken out your first naturalization papers?’
    “ ‘No, I have not taken them out yet.’
    “ ‘Do you intend to become a citizen of the United States, and do you intend making application for your first papers ?’
    “ ‘Yes, I intend to take out my first papers in the near future.’
    “ ‘How long have you resided in the United States?’
    “ ‘Four years. If any more inquiries come to your office tell them I intend to become a citizen in the near future/
    “Another alien, much more famous and able than Mr. Van Lonkhuyzen, came over here a short time ago. His name was Dernburg, and he attempted to do some criticizing of the manner in which our government was being conducted. It was hinted to him that his presence in this country was undesirable, and he took the hint and departed for foreign shores.
    “Evidently all the foreign meddlers did not take advantage of this rather forcible lesson. Maybe Mr. Van Lonkhuyzen never heard about it, there seems to be so much that he doesn’t understand.

      “So far as Mr. Van Lonkhuyzen is concerned personally it makes no difference, but the pity of, the thing is that probably thousands of good, loyal Americans of Holland descent are putting themselves, into a false light by signing the petitions criticizing our President and doubting the sincerity of his motives.
    “The fact that the first organized criticism of President Wilson should emanate from Grand Rapids is no credit to the city.
    “We are ashamed of the petitions and we are ashamed of the Rev. Mr. Van Lonkhuyzen, or rather, we are ashamed of the fact that he should live here.
    “As he is an alien and nobody knows what fish he has to fry, it would seem that he should be the recipient of one of the famous hints from headquarters such as caused Dr. Dernburg to take his hat and go back home.
    “We do not want trouble makers in America, whether they be English, French, Dutch, German or Japanese. The United States is today made up of a citizenry that is standing solidly behind President Wilson in his determination to protect our national honor. The Holland people have stood behind him until this, plague of sedition broke out in the vicinity of Alpine avenue a few days ago.
    “Those who have signed these protests will be sorry for what they have done. Perhaps many of them signed without thinking. That is the most charitable view of the case to take. If the protests have not been forwarded to the President, they should be thrown into the fire.
    “The protest is a reflection upon the patriotism of every man who signs it. There has never been any reason to doubt the loyalty of American citizens of Holland birth. There should never be any reason.
    “The Rev. Mr. Van Lonkhuyzen is an interloper, a meddler and a spreader of distrust, discontent and sedition. His protest against the ‘one-sidedness’ of America’s policy of dealing with its foreign affairs should entitle him to an invitation to pack his grip and go back to Europe where he belongs.
    “If the petition, or protest, ever does reach the President, the News will make sure that Mr. Wilson will receive it in the full knowledge that it originated in the brain of a busy-body alien and that it does not represent the opinions of the loyal people of Grand Rapids, be they natives or of’Holland birth or extraction.”
    After the publication of the alleged libel, plaintiff served a notice to retract upon defendant. But the defendant published an article thereupon in its paper headed “No Repentance,” in which it stated that it had nothing to retract.
    - On July 28, 1915, suit for damages was commenced by plaintiff against the defendant. An article was thereupon published by defendant stating that it had been sued by the plaintiff. Thereafter several letters and communications were received by the “People’s Column” of the News from certain persons who had read the alleged libel commenting upon the matter and ridiculing the plaintiff.
    At the close of all the testimony, counsel for the defendant moved for a directed verdict on the ground that the words used in the article were not libelous per se; and that, if the words may be considered as defamatory, upon the facts of the article the words are justified. For those reasons a verdict was directed for the defendant.
    The plaintiff alleges as error:
    (1) That the court erred in granting defendant’s motion for a directed verdict.
    (2) That the court erred in the admission and rejection of evidence.

       On what words uttered concerning clergymen are actionable per se, see note in 28 L. R. A. (N. S.) 152.

   Kuhn, C. J.

(after stating the facts). The language in the editorial which it is particularly urged is libelous is:

“The Rev. Mr. Van Lonkhuyzen is an interloper, a meddler and a spreader of distrust, discontent and sedition.”

The learned trial judge held that these words were not libelous per se, and further that they were justified as matter of law by the conduct of the plaintiff. In Webster’s International Dictionary “sedition” is defined as:

“A commotion, or the raising of a commotion, in a state, not amounting to an insurrection; conduct tending to treason, but without an overt act; excitement of discontent against the government, or of resistance to lawful authority.”

Newell on Slander and Libel (3d Ed.), p. 42, says:

“Everything printed or written which reflects on the character of another and is published without lawful justification or excuse is a libel, whatever the intention may have been.
“* * * And so, too, are all words which hold the plaintiff up to contempt, hatred, scorn or ridicule, and which, by thus engendering an evil opinion of him in the minds of right-thinking men, tend to deprive him of friendly intercourse and society.”

See, also, 25 Cyc. p. 253; Gustin v. Evening Press Co., 172 Mich. 311 (137 N. W. 674, Am. & Eng. Ann. Cas. 1914D, 95).

Defendant’s manager on the stand frankly admitted that to say the words here in question of the plaintiff would hold him up to ridicule and disgrace and that his only defense was that they were true. Any person who by his actions undermines the government and seeks to encourage resistance to lawful authority is an enemy of the State, and right-thinking persons would be fully justified in having contempt for him. The supreme court of Minnesota, in speaking of similar language in the case of Wilkes v. Shields, 62 Minn. 426 (64 N. W. 921), said the following:

“As applied to this case, any words published of another, the natural tendency of which is to hold him up to hatred, scorn, contempt, or ridicule, and to beget an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse and society, are libelous, and actionable per se. A seditious agitator can be neither a good citizen nor a fit associate for honorable men. The obvious meaning of the words ‘a seditious agitator/ as they would naturally be understood by ordinary men when published in reference to another, is that he is a disturber of the public peace and order, a subverter of just laws, and a bad citizen. The publication of such a charge is clearly libelous, and actionable per se. In the pithy language of the learned trial judge: “To say that a person is a dangerous, able, and seditious agitator is to charge him with being a disturber of public tranquility and guilty of acts, by writing, speeches, or otherwise, tending to the breach of public order, all of which is inimical to good society and the highest and best interests of the people. Such acts and conduct, even in this free country, must make the person therewith charged an object of public distrust, reproach, and contumely, and such charges are clearly defamatory/ The actionable quality of the words used in the publication is manifest on its face, and it was not necessary to allege any extrinsic facts and circumstances to show their meaning.”

We are of the opinion that it must be said that the language was libelous per se, and the trial judge erred in holding otherwise.

Neither are we of the opinion that it can be said as a matter of law under the facts in this case that the libelous language was justifiable. One of the very safeguards of our liberties and institutions, and which has been zealously guarded by the founders of this republic, was the right of its citizens to petition. Whatever may be said of the propriety of a man who is not a citizen of this country, and who has simply expressed a desire to become such, to circulate a petition addressed to the President and have citizens generally sign it, it does not follow that such conduct necessarily justifies his being called a spreader of sedition. It is said that the controversy here involved a politicaj question, rather than a legal one. It is true that political issues were involved upon which the defendant differed from the plaintiff, but it must also be said that mere differences as to political or international policies do not necessarily justify libelous attack. It might well be said here, as was said by the court in the case of Press Pub. Co. v. Gillette, 229 Fed. 108, 112 (143 C. C. A. 384, 388):

“It would involve the prescribing of a novel rule of conduct in this country to hold that, in time of peace, criticism of the policy and conduct of an administration, even though severe, bitter, and vehement, is ‘traitorous and treasonable.’ ”

It is further urged that, because the ■ facts upon which the libel was based were published and were true in fact, the conclusions therefrom were merely opinions of the defendant and would, mislead no one. The case of Simons v. Burnham, 102 Mich. 189 (60 N. W. 476), and cases from other jurisdictions, were cited to sustain this viewpoint. In these cases, however, the facts were stated without any further comments, and it was said that, merely because the truth as stated was liable to suggest damaging inferences, it did not make the statements libelous. In Simons v. Burnham, supra, the court said:

“There is nothing better settled in this State than the proposition that the truth of the publication is a complete defense to the action of libel. Here, then, the defendant has simply told the truth without comment of any kind. Shall we say that, because of the inferences which naturally follow, the meaning of the language should be extended to include the inferences ? If so, it logically follows that the truth of the publication is not a complete defense in cases where inferences naturally follow the statement of certain facts. Would the character of the publication depend upon the expectation by defendant that the inference would be drawn? And would the failure of the person addressed to draw the inference relieve the defendant from liability? We get into deep water when we depart from the rule that actions for slander and libel do not lie upon inferences.”

In the case before us, the publishers were not satisfied to state the facts and allow the readers to draw their own conclusions, but followed it up by making the libelous statement for the very purpose, as admitted, to hold him up to scorn and ridicule. While the question of whether or not the limits "of fair criticism have been transcended may sometimes be a question of law, ordinarily it is a question of fact for the jury, and we are satisfied that under all the facts and circumstances of this case the question of justification became one of fact for the jury to determine.

As the case will be sent back for a new trial, we will now consider various rulings of the court on the admission and rejection of testimony. There were published in the paper the notes exchanged between the United States and Germany regarding the Lusitania incident. They were admitted by the court as showing the basis upon which the editorial comments of the defendant were founded. We see no prejudicial error in the admission of these exhibits.

The trial court refused to allow several witnesses to state what effect reading the article in question had' upon them. In this we think the court erred, because the testimony was admissible as bearing upon the question of damages. The rule is thus stated in 25 Cyc. p. 505:

“It is competent for plaintiff to prove by persons who read or heard of the libel the effect thereby produced upon them for the purpose of showing the substantive fact of damages sustained.”

Witness Kate Van Lonkhuyzen was not permitted to answer the following question: “How did those seem to make him feel?” The answer was properly excluded, as it would be simply the opinion of the witness.

Mr. Johnson, the manager of the defendant corporation, was asked the question:

“And you knew that a public man would be injured more than a private individual in articles of this kind, didn’t you?”

The answer was excluded. We think that the answer should have been permitted as bearing upon the question of damages, because the injury to a man in public life who was held up to public disgrace and ridicule might be greater than to a private individual.

We have examined the other errors complained of, and find them without merit.

The judgment of the trial court must be reversed, and a new trial granted, with costs to the plaintiff.

Stone, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., took no part in this decision.


author: Brooke, J. Ostrander, J.

text:
    KIRSHER v. TODD.
    1. Wills — Construction—Intent.
    The primary rule for the construction of a -will is to ascertain the true intention of the testator, which must he ascertained from a consideration of all its provisions in the light of the circumstances surrounding the testator at the time it was made, and his relations with the several objects of his bounty.
    2. Same — Construction—Partial Intestacy — Presumption.
    The presumption is always against partial intestacy, and a will, if legally possible, should be so construed as to avoid that effect.
    3. Same — Construction—Ademption—Sale oe Real Property.
    Land purchased with the money received by testatrix, after the execution of the will, from the sale of a farm specifically devised to defendant, was not devised.
      Stender v. Stender, 181 Mich. 648 (148 N. W. 255).

      4. Same — Intent—Injustice—Equity.
    ‘But the court of equity will not allow the manifest intention of testatrix to be defeated by her ignorance of the rule of law that the sale of a specifically devised piece of real estate works a revocation of such devise.
    5. Deeds — Cancellation oe Instruments — Fraud.
    Where plaintiff and her mother entered into a contract of settlement wherein the. portion of her mother’s estate to be willed to her was fixed, and in the distribution of the mother’s estate land in which it was not intended she shouid have any interest was erroneously assigned to her, a quitclaim deed of said land to her sister, carrying into effect the provisions of said contract and will, should not be set aside on the ground of fraud.
    Appeal from Allegan; Cross, J.
    Submitted October 18, 1916.
    (Docket No. 114.)
    Decided March 30, 1917.
    Bill by Eldora A. Kirsher against Cornelia J. Todd for a decree requiring defendant to reconvey to plaintiff a one-half interest in certain real property and for the cancellation of a certain deed. From a decree for plaintiff, defendant appeals.
    Reversed.

      Wilkes & Stone (Jewell & Smith, of counsel), for appellant.

      Stewart & Hextell and Chas. Thew, for appellee."
    In the year 1899 one Elijah Jones died at Des Moines, Iowa, testate. By his will he devised and bequeathed his entire estate to his wife, Eliza A. Jones. He had two daughters, the plaintiff, Eldora A. Kirsher, and the defendant, Cornelia J. Todd. Immediately after his death his daughter, the plaintiff herein, contested the probating of said will. Said contest continued until April 2,1902, and in the meantime plaintiff and her husband started sevefal other suits against Eliza A. Jones. On said date plaintiff and her mother entered into the following contract:
    “Know all men:
    “That whereas, Eldora A. Kirsher has heretofore brought and has now pending a suit to set aside the will of Elijah Jones, deceased, probated in this court, on the 2d day of January, 1900 ; and
    “Whereas, she has other suit or suits pending against Eliza A. Jones; and •
    “Whereas, Lawrence Kirsher has a suit or suits pending against Eliza A. Jones; and
    “Whereas, Eldora A. Kirsher has a suit or suits pending against Charles F. Keeling; and
    “Whereas, Lawrence Kirsher has a suit or suits pending against Charles F. Keeling; and
    “Whereas, Eldora A. Kirsher has a suit or suits pending against H. E. McGriff; and
    “Whereas, said Eldora A. Kirsher, by and in her own behalf, and Lawrence Kirsher, by and in his own behalf, claim to have other causes of action against Eliza A. Jones and Charles F. Keeling and H. E. Mc-Griff ; and
    “Whereas, Eliza A. Jones has a suit pending in the district court of Polk county, Iowa, to enjoin Eldora A. Kirsher and Lawrence Kirsher from going on to or taking possession of the south seventy (70) acres of the east half (%) of the southeast quarter (*4) of section thirty-two (32) township seventy-eight (78) range twenty-three (23) west of the 5th P. M. Iowa; and
    “Whereas, she claims to have the right to dispossess said Kirshers from the north ten acres of said eighty (80) acres of land above described; and
    _ “Whereas, Eliza A. Jones has executed a will devising and bequeathing to Eldora A. Kirsher certain rights in and to the eighty (80) acres of land above described; and
    “Whereas, she is possessed of other lands and personal property:
    “Now, therefore, for the purpose of settling all of the disputes or causes of action now existing by and between the parties to said suit or suits or named herein, or growing out of or in any way connected with each other, and for the purpose of amicably settling and adjusting all and singular of the rights of all parties hereto or herein named, Eliza A. Jones hereby agrees to and with Eldora A. Kirsher that she shall have the possession, use, and control of the east half (%) of the southeast quarter (%) of section thirty-two (32), township seventy-eight (78), range twenty-three (23) west of the 5th P. M., Iowa, from the day and date of this contract to the day and date of the death of Eliza A. Jones, subject only to the contract of Charles F. Keeling to the south sixty (60) acres thereof for the year 1902, as per lease dated February 11, 1902, which contract said Eliza A. Jones hereby assigns and transfers to Eldora A. Kirsher.
    “Eliza A. Jones further agrees to dismiss the suit she has now pending against Eldora A. Kirsher and Lawrence Kirsher, and releases and receipts in full both of them for all matters and things she may have against either or both of them to this date. She further agrees to so modify the will already executed by her, and to execute in lieu thereof, one devising and bequeathing to Eldora A. Kirsher the south (%) half of the southeast (%) of section thirty-two (32), township seventy-eight (78), range twenty-three (23) west of the 5th P. M. Iowa, and the sum of five hundred dollars ($500.00) to be paid out of the remainder and residue of the estate she may leave at the time of her death.
    “In consideration of the foregoing provisions and agreements on the part of Eliza A. Jones, Eldora A. Kirsher, and Lawrence Kirsher, and each for himself, agree to and do hereby dismiss all actions in the district court of Polk county, Iowa, either to set aside the will of Elijah Jones, deceased, or by or against Eliza A. Jones and Charles F. Keeling and H. E. Mc-Griff, and hereby acknowledge satisfaction and receipt in full for all claims each or both may have by or against either of the parties above named, this to be a settlement and satisfaction in full of all claims whatsoever against either of said parties.
    “Eldora A. Kirsher further acknowledges the validity of the will of Elijah Jones, deceased, probated in this court on the 2d day of January, 1900, and further agrees that any disposition Eliza A. Jones may make of any of her property other than the eighty (80) acres of land and the five hundred dollars ($500.00) hereinbefore set forth shall be binding upon her and preclude her from any participation in the distribution made thereof.
    “The suits now pending are to be dismissed at the cost of plaintiff, save and except the case of Charles F. Keeling v. Eldora A. Kirsher and Lawrence Kirsher, wherein judgment was entered in favor of the plaintiff and the costs taxed to plaintiff and defendants, which case is now pending in the Supreme Court of Iowa, and is to be dismissed, the costs to be taxed as in the court below,
    “It is further agreed that Eldora A. Kirsher and Lawrence Kirsher shall permit Charles F. Keeling, present tenant of Eliza A. Jones, to have peaceful and uninterrupted possession of the south sixty (60) acres of the east half (%) of the southeast quarter (%) of section thirty-two (32), township seventy-eight (78), range twenty-three (23) west of the 5th P. M., Iowa; and she further agrees that, if she fails to pay the taxes on said land before the same is sold therefor, Eliza A. Jones may pay the same if she desires, and the amount of said payment shall be a special lien on all of said land for all taxes so paid at 6 per cent, interest from the date of payment, and said lien may be enforced the same as a mortgage on all of her interest therein.
    “Eldora A. Kirsher further agrees that, if she brings any suit or suits against Eliza A. Jones on any of the matters herein settled and adjusted or heretofore existing, she hereby forfeits all her right and interest in this contract and in and to the eighty (80) acres of land above described, and such interest as she may have therein shall cease and determine.
    “Signed in duplicate the 2d day of April, 1902.
    “Eldora A. Kirsher.
    “Lawrence Kirsher.
    “Eliza A. Jones.”
    Duly acknowledged.
    On the 18th of April, 1902, 16 days after the execution of the contract, Eliza Jones made the following will:

      “Know all men by these presents:
    “That I, Eliza A. Jones, widow of Elijah Jones, deceased, of Allen township, Polk county, Iowa, being advanced in years, yet of sound and disposing mind and memory, do hereby make, publish, and declare this to be my last will and testament, hereby revoking all former wills made by me, together with the codicils thereto attached, if any.
    “I devise, bequeath and dispose of all the property I now have, or may own and possess at the time of my death, injthe manner and form as follows, that is to say: __ ... «
    __ “Paragraph’ll. I direct that all my just debts and funeral expenses be first paid.
    “Par. 2. I give and devise to my daughter, Eldora A. Kirsher for her sole use and benefit the east half (%) of the southeast quarter (%) of section thirty-two (82), township seventy-eight (78) north of range' twenty-three (23) west of the 5th P. M., Polk county, Iowa, she to have and to hold the same to herself and her heirs forever.
    “Par. 3. I give and bequeath to~ my daughter, Eldora A. Kirsher, to be paid out of the proceeds of the personal property belonging to my estate, or such other portion of my estate not designated and described in paragraph two (2) hereof, the sum of five hundred dollars ($500.00), payment of the same, however, not to be required of the executrix of this will at an earlier date than one year from the day and date of my death.
    “Par. 4. I give and devise to my daughter, Cornelia J. Todd, for her sole use and benefit, the south .fractional half (I/2) of the southwest quarter (%) of section thirty (30); also the west fractional half (%) of the northwest quarter (%) of section thirty-one (31), all in township seventy-eight (78) north of range twenty-three (23) west of 5th P. M., Polk county, Iowa, she to have and to hold the same to herself and her heirs forever.
    “Par. 5. I give and bequeath to my daughter, Cornelia J. Todd, all of the remainder and residue of my personal property at the time of my death, she to have all of my personal property absolutely in her own right, as well as the real estate déscribed in paragraph four (4), subject only to the payment of the five hundred dollars ($500.00) payable to my daughter Eldora A. Kirsher, as set out in paragraph three (3) hereof.
    “Par. 6. I fully appreciate and understand that the disposition of my property herein made may not, to those not acquainted with the circumstances of my family relations, seem fair and equal; but my daughter, Mrs. Cornelia J. Todd has not received anything from me and has always treated me as a daughter should treat her mother, while, my daughter, Mrs. Eldora A. Kirsher, has, to a very large extent, received the use of the eighty (80) acres farm described in paragraph two (2) hereof, and has harassed me with litigation to set aside the will of her father, Elijah Jones, and compelled me to incur large expense in defending said suits, and otherwise caused me untold annoyance and vexation; and on account of this experience in this connection, and to comply with the terms of the contract made and entered into by me with her and her husband on the 2d day of April, 1912, I make the disposition of my property as above.
    • “Par. 7. Having faith and confidence in the good judgment and integrity of my daughter, Cornelia J. Todd, I hereby nominate and appoint her as executrix of this,' my last will and testament.
    “In testimony whereof I have hereunto subscribed my name at Des Moines, Polk county, Iowa, this 18th day of April, 1902.
    “Eliza A. Jones.
    “Be it remembered that on this 18th day of April, 1902, the foregoing instrument was, on the day and date thereof subscribed by Eliza A. Jones in our presence, and she at that time declared the same to be her last will and testament; and by her request and in her presence, and in the presence of each other we now sign our names as witnesses to said instrument, and write opposite our signatures our respective places of residence, at Des Moines, Iowa, on the day last above written.
    “Witness: A. A. McLaughlin.
    “Residence: Des Moines, Iowa.
    “Witness: A. I. Lee.
    “Residence: Des Moines, Iowa.
    “Witness: Howard J. Clark.
    “Residence: Des Moines, Iowa.”

      - At the time said will was made Eliza Jones lived upon the premises in Iowa described in paragraph 4 of the will. In the year 1906 said Eliza A. Jones sold the premises described in said paragraph 4 for the sum of $14,628. She then removed from Iowa and came to Michigan, where she resided with her daughter the defendant, Cornelia J. Todd, up to the time of her death on August 14, 1912. Of the money she received from her Iowa farm Eliza A. Jones gave to defendant upon her arrival in Michigan a considerable sum, and she expended $5,500 in the purchase of an 80-acre farm in Allegan county, Mich. At the time of the death of Eliza Jones she was seised of the Allegan county farm. On August 26, 1912, the will of Eliza Jones was filed for probate in the probate court in the county of St. Clair, Mich. On November 11, 1912, the will was admitted to probate, and Cornelia J. Todd was appointed executrix. On the 12th day of May, 1913, the final account of Cornelia J: Todd was allowed, and the final order of distribution entered as follows:
    “To Cornelia J. Todd and Eldora A. Kirsher in equal shares said real estate being described as follows: [The Allegan County farm.]
    “To Cornelia J. Todd the residue of the personal estate in accordance with the will of the said Eliza A. Jones, deceased. It is further ordered that the executrix stand discharged, her bond canceled and the estate closed.”
    In the meantime, and on August 16, 1912, defendant had advised her sister, the plaintiff, of her mother’s death, and on August 26, 1912, defendant wrote a further letter to plaintiff describing the last hours of the mother. With reference to the estate she wrote as follows:
    “As to the cemetery lots, I thought it would be nice for you and Lawrence have the lot where father is buried, and Will and I the other one in Michigan,

      where mother is buried. Mother’s death date will need to be put on the monument, and then there will be room for yours and Lawrence’s names, too. As to the estate, we can do that up easily. You can sign a quitclaim deed to the eighty here in Michigan, and I will sign a quitclaim deed to the lower farm eighty, and deposit the five hundred dollars in the bank to be delivered by them to you when you sign the papers. This will be far more seemly for us as sisters, and will do away with a long delay. I think the provision of the contract was that there was a year in which to pay the five hundred, but if we can get the papers fixed up and signed, you may as well have it right away. We are sending the papers to the Des Moines Savings Bank, where you can go in and sign up and draw your money. These are certificates of deposit which will mature December 14, 1912. If you leave them until that time, you will have ($520.00) five hundred and twenty dollars, if you cash them now, you, of course, will draw no interest. Of course, you can do as you like.
    “This plan, no doubt, will be highly satisfactory to you, and I believe is right all around. Let me know, if I shall send you the trunk of clothing together with the pictures.
    “Lovingly your sister,
    “Cornelia J. Todd.”
    A third letter was written by defendant to plaintiff on September 18, 1912, containing the following:
    “I have not received the papers yet. I wish you would sign and forward them right away, for I want to go ahead and settle up the expenses right away. The doctor, nurse, the undertaker all have to be paid, and unless the papers are signed and sent, I will have to probate the will. The will provides that the five hundred due you shall not be paid for a year. I, of course, would probate it right here in St. Clair county. But in the condition that you and Lawrence are, I would prefer that you have your money before the winter. The judge of probate here said that after our quitclaim deeds were signed, and the papers returned, he would declare the estate settled by ‘agreement’ and we would not have to wait a year as we would in the other case.”
    On October 18, 1912, defendant wrote plaintiff:
    “The deed came while I was gone.”
    And on April 5, 1913, defendant wrote plaintiff, among other things, as follows:
    “The will has been allowed. It was made in accord with the contract which you and mother entered into when you quit lawing. You have the five hundred dollars called for in the contract which I sent you through the bank and for which I have the receipt, I have your quitclaim deed and you have mine, and we have done it all without any lawing and I believe with the kindliest feelings on both sides. Of course, there has had to be the regular court proceedings as there has to be in any estate, and when I get things all paid up, I will send you an itemized account .for I do not wish to conceal anything from you.”
    On September 30, 1912, plaintiff executed a quitclaim deed to defendant of the 80 acres in Allegan county. This deed was recorded on February 7, 1913. The bill of complaint herein was filed on August 28, 1915, in which the plaintiff prays that the defendant be required to reconvey to her an undivided one-half interest in the Allegan county farm, and that the quitclaim deed executed by the plaintiff to defendant of her interest in said farm be set aside, canceled, and held for naught. The defendant, answering, set up the contract made between Eliza Jones, her mother, and the plaintiff, her sister, and the will of Eliza Jones, the mother, and prayed for the dismissal of the bill. The trial judge, in effect, held that the quitclaim deed given by plaintiff to defendant was procured by fraud, and that it should be set aside and held for naught, and further:
    “The testatrix having sold the 160 acres of land in Iowa, she thereby revoked the provisions of the will concerning the same, and not having made any disposition, by will or otherwise, of the farm described in. the bill of complaint, the plaintiff, as heir at law of the testatrix, is entitled to an undivided one-half interest therein.”
    From a decree entered in accordance with these findings, the defendant appeals.

       As to ademption of specific legacy or devise by change in or substitution of other for property bequeathed, see note in 40 L. R.. A. (N. S.) 553.

   Brooke, J.

(after stating the facts). It is to be noted that at the time the order for distribution was made, by the terms of which the plaintiff was given an undivided one-half of the Allegan county farm, the defendant had in her possession and of record a quitclaim deed from the plaintiff to her of all plaintiff’s interest in said farm. - Assuming the validity of said deed, the construction given the will in the probate court for the county of St. Clair, whether right or wrong, was of no consequence to defendant. That order of distribution was made on May 12, 1913. Plaintiff was advised of the probating of the estate on April 5, 1913. She filed her bill of complaint on August 28, 1915, upwards of two years after the allowance of the final account of the defendant as executrix of the mother’s estate, her discharge as such executrix, and the making of the order assigning the residue of the estate. Defendant’s right to appeal from the order assigning the residue was lost, apparently through her reliance upon the deed in question. It is assumed by both parties to the controversy now before the court that the will of Eliza Jones must be construed, and it was construed in the court below where it was held that the sale of the 160 acres in Iowa by Eliza Jones in her lifetime revoked paragraph 4 of the will of the said Eliza Jones, and that the land purchased by Eliza Jones in Allegan county was undisposed of by said will, and therefore descended to plaintiff and defendant in equal shares, they being the sole heirs at law of Eliza Jones.

At the outset it is proper to consider the circumstances surrounding the testatrix at the time of the execution of the will and the relations which existed between herself and her two daughters before and subsequent to that time. Aside from recitations and expressions contained in the contract and will, there is abundant testimony in the record to establish the fact that the testatrix, Eliza Jones, had been harassed by her daughter, the plaintiff, and by the husband of her daughter, for several years with litigation over the estate left by Elijah Jones, the father of the parties hereto. By reason of the conduct of the plaintiff toward her mother a complete estrangement followed, but one or two formal calls being made by one or the other up to the time that. Eliza Jones sold her Iowa property and moved to Michigan. She left without paying or receiving a farewell visit from the plaintiff, her daughter in Iowa, and from that time (1906) until her death in 1912 no .communication was had between the two. On the other hand, the relations between the defendant and her mother, Eliza Jones, were always of the friendliest character, and the defendant seems to have given to her mother during the last years of her life, and particularly during her final illness, which was prolonged, that care, love, and sympathy which a dutiful daughter always owes to her mother. That the feeling of bitterness existing between Eliza Jones and her daughter, the plaintiff, continued up to the time of her death is abundantly shown by the record. The will itself was made but a few days after the contract, and was a concession wrung from Eliza Jones by her daughter the plaintiff as the purchase price of peace. In that will the plaintiff secured a greater consideration and more property from her mother than her mother desired to give her.

The primary rule of construction is to ascertain the true intention of the testator. That intention must be ascertained from a consideration of all the provisions of the will itself and in the light of the circumstances surrounding the testator at the time the will was made and his relations with the several objects of his bounty. Having so ascertained his intention, it is the duty of the court to give that intention effect if that be legally possible. This court has so frequently enunciated these principles that a citation of authorities in this State in support thereof is unnecessary.

Coming to a consideration of the will itself, we find the opening paragraph to be as follows:

“I devise, bequeath and dispose of all the property I now have, or may own and possess at the time of my death, in the manner and form as follows, that is to say.”

Paragraph 2 devises to the plaintiff the 80 acres in Iowa which was then and had for many years been occupied by the plaintiff.

Paragraph 3 bequeaths to the plaintiff the sum of $500 to be paid out of such portion of the estate not designated and described in paragraph 2.

Paragraph 4 devises the farm of 160 acres in Iowa then occupied by the testatrix to the, defendant.

Paragraph 5:

“I give and bequeath to my daughter, Cornelia J. Todd, all of the remainder and residue of my personal property at the time of my death, she to have all of my personal property absolutely in her own right, as well as the real estate described in paragraph four (4), subject only to the payment of the five hundred dollars ($500.00) payable to my daughter Eldora A. Kirsher, as set out in paragraph three (3) hereof.”

Paragraph 6 is an unusual and illuminating resume of the reasons which impelled the testatrix to make her will as she did. There she states that her daughter Mrs. Todd has. never had anything from her, but -has always treated her as a daughter should, while her daughter the plaintiff she charges with having had possession and use of the 80 acres devised to her in paragraph 2, and that, aside from that, her said daughter has harassed her with litigation, causing her to incur large expense and -to bear untold annoyance and vexation.

No one can read this will in the light of the contract made a few days before its execution between the testatrix and her daughter the plaintiff and in the light of the evidence contained in this record as to the relations existing between the plaintiff and her mother, up to the time of the death of her mother, without reaching the conclusion that it was the intention of the testatrix to give to the plaintiff from her estate the 80 acres devised to her in paragraph 2 of the will, the $500 bequeathed to her in paragraph 3 of the will and no more. If this manifest intention is thwarted, it must be because some supervening rule of law prevents its accomplishment.

The presumption is always against partial intestacy, and a will, if legally possible, should be construed so as to avoid that effect. In re Ives’ Estate, 182 Mich. 699 (148 N. W. 727), and cases there cited. In the case at bar we are not left to presumption for the testatrix herself undertook by her will to “devise, bequeath, and dispose of all the property I now have or may possess at the time of my death.”

It is the claim of the plaintiff that the sale of the Iowa farm by the testatrix revoked paragraph 4 of the will, and with this contention the learned circuit judge agreed. We have lately in this court considered a case involving, this identical question. Stender v. Stender, 181 Mich. 648 (148 N. W. 255). We there held that a bequest of personal property did not carry with it a sum received by the testator after the execution of the will from the sale of real estate which he had otherwise devised in his will. See, also, Rue v. Connell, 148 N. C. 302 (62 S. E. 306), and Bills v. Putnam, 64 N. H. 554 (15 Atl. 138). Section 4 of the will in terms devises the 160 acres in Iowa to defendant. A portion of the sale price of that farm was paid over to defendant in the lifetime of the testatrix, and a' portion was invested in the Allegan county farm. Nothing can be clearer than that it was the intention of the testatrix that the plaintiff should inherit nothing from the Iowa farm of 160 acres. Should this manifest intention be defeated because the testatrix was in ignorance of the generally applicable rule of law that the sale of a specifically devised piece of real estate works a revocation of such devise? In Stender v. Stender, supra, we refused to permit such an injustice, and in the case at bar will adhere to the rule there announced. The plaintiff is now in a court of equity; she appeals to the conscience of the court to right what she claims to have been a wrong perpetrated upon her; she asserts that the quitclaim deed executed by her was procured by the defendant by fraudulent means and without consideration.

From a careful perusal of the record we are satisfied that the claim of fraud is not made out. ' While the plaintiff claims to have been ignorant of the terms of her mother’s will, she knew the conditions of the contract executed by her mother and herself, and she knew when she received the quitclaim deed from' her sister to her of the 80 acres of land in Iowa and the $500, that she was getting from her mother’s estate the amount which had been provided for in that contract. If the quitclaim deed is permitted to stand and operate as a valid conveyance of the plaintiff’s interest in the Allegan county farm, which was erroneously assigned to her by the order of distribution, the devolution of the estate of Eliza A. Jones will be accomplished in accordance with the terms of her will when properly construed. This course will therefore be followed. A decree will be entered dismissing the bill of complaint, with costs to the appellant.

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

Ostrander, J.

(concurring). The source of defendant’s title to the land is her mother. As to an undivided one-half interest she acquired it by inheritance; as to the other half by quitclaim deed from the other heir. The will of the mother cannot be construed as a devise of the land, because it does not devise it. And there is also to be considered the unappealed-from order of the probate court which plainly is based upon the finding that the land was not devised. The doctrine of construing wills according to a discovered intention of the testator cannot be properly carried so far as to find in a will a devise of land which is not expressly or impliedly described or referred to therein. Defendant’s title, I think, must be rested upon her quitclaim deed, as to an undivided one-half interest in the land. Unless it was secured by fraud, the quitclaim is good. I find that it was executed because it should, in equity and good conscience, have been executed, in view of the contract referred to in the opinion of Justice Brooke, and the mutual dealings of the parties. Equity will not aid plaintiff to revoke and recall an act which conscience demanded of her, which executed an understanding to which she was a party and a purpose of her ancestor of which she was advised, and which equity approves. I concur, therefore, in reversing the decree and dismissing the bill of complaint.

Person, J., did not sit.


text:
    CLOSSER v. REMLEY.
    1. Taxation — Redemption—Notice—Sufficiency.
    Where the notice of redemption served on the owner by the purchaser of a tax title gave the owner six months after service of notice in which to redeem, while the act in force at the time (Act No. 142, Puh. Acts 1905, 1 Comp. Laws 1915, § 4138) provided for six months after return of service, said notice was insufficient; statutes providing for redemption being liberally construed in favor of the redemptioner. Stone and Ostrander, JJ., dissenting.
    2. Adverse Possession — Taxation—Notice.
    ’ The purchaser of a tax title from the State, having failed to acquire any right to possession under his purchase because of failure to serve the statutory notice of redemeption upon the owner, and any possession he had prior to the sale to the State being cut off by said sale, acquired no rights under adverse possession.
    Appeal from Alpena; Emerick, J.
    Submitted October 20, 1916.
    (Docket No. 133.)
    Decided March 30, 1917.
    Bill by Lenore D. Closser against Louis Remley to remove a cloud from the title of said plaintiff to certain real property. Dayton W. Closser was substituted as plaintiff upon the death of said Lenore D. Closser. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Henry & Henry, for appellant.

      Dayton W. Closser, for appellee.

       On the question of who is entitled to notice to redeem from tax sale, see comprehensive note in 44 L. R. A. (N. S.) 666.

   Brooke, J.

The bill in this case is filed for the purpose of securing the redemption of a 40-acre tract of land in Alpena county. The land was sold for the taxes of 1900,1901,1902, 1903, and 1904. These titles were purchased by the defendant subsequent to July 1, 1905, and he secured a deed from the State on April 13, 1906. On May 8, 1906, he served a tax notice upon Mary Golling, who was at that time the last owner of record in the original chain of title. The notice contained the following language:

“You are entitled to a reconveyance thereof at any time within six months after service upon you of this notice.”

Return of service of this notice was made by the sheriff on May 18, 1906, ten days after the date of service. The form of the notice served was that provided in Act No. 236, Pub. Acts 1903. This act was amended by Act No. 142, Pub. Acts 1905, and the form provided by said amended act so far as time of redemption is concerned reads as follows (1 Comp. Laws 1915, § 4138):

_ “You are entitled to a reconveyance thereof, at any time' within six months after return of service.”

Mary Golling never offered to redeem, but conveyed the land in question in 1909 to plaintiff’s grantor, who later conveyed to him. Plaintiff, after he secured the title of Mary Golling, tendered the requisite amount for redemption to defendant, but defendant refused to execute a conveyance of his interest, whereupon plaintiff filed his bill.

The first question for determination is as to the sufficiency of the notice served. It was held insufficient by the learned circuit judge who made a decree granting to the plaintiff the relief sought. This question was under consideration by this court in the case of Heethuis v. Kerr, 180 Mich. 520 (147 N. W. 584). The same infirmity was there urged against the notice as is relied upon by the plaintiff in the case at bar. The majority of the court, being of the opinion that the appellant was not one of the persons entitled to the statutory notice, did not pass upon its sufficiency. In a minority opinion, however, written by Mr. Justice Bird, the question is considered, and he reached the conclusion that the notice there in question was fatally defective for the reason that such notice would have a tendency to mislead the owner of the record title as to the exact time within which redemption might be effected. While the conclusion reached by Justice Bird is not, as claimed by the plaintiff, controlling, because it was, according to the view of the majority, unnecessary to a determination of the case then under consideration, his reasoning, if sound, should be followed. Statutes providing for redemption are to be liberally construed in favor of the redemptioner. Pike v. Richardson, 136 Mich. 414 (99 N. W. 398). We think the notice bad for the reason assigned.

Defendant filed a cross-bill under oath where it is alleged:

“Defendant alleges that he and his grantors have been in possession of said premises for a period of more than 15 years prior to the time the bill of complaint was filed in this cause, and that such possession has been continuous, hostile, open, and notorious, and such a possession as would and does give to this defendant a title to said land by adverse possession.”

Plaintiff, answering this averment, says:

“Complainant neither admits nor denies the allegation of adverse possession in said paragraph contained, denying, however, that defendant took possession of said land and held the same as in said paragraph alleged, 15 years prior to his purchase of the said tax title on said land from the State of Michigan, and avers, that said defendant is estopped and barred from setting up a claim of title based upon such adverse possession for two reasons:
“First, because on the 8th day of May, 1906, at a time when he had not held such adverse possession 15 years, he caused to be served on Mrs. John Golling —i. e., Mary Golling — the then owner of the land, a notice of which Exhibit A, attached to the bill of complaint, is. a true copy, which said notice was not in the form required by law, but which nevertheless correctly described the land in quéstion and included therein the following statement on which Mary Golling and her grantees had a right to rely, to wit: ‘If payment as aforesaid is not made, the undersigned will institute proceedings for the possession of the land/
“Second, because said land was lawfully bid in by the State of Michigan for taxes of 1900 at the annual tax sale of 1903, and became and was the absolute property of the State of Michigan as State tax land, being so held by the State of Michigan until the purchase from the State of Michigan by the said defendant some time subsequent to July 1, 1905, and that the said defendant could not hold possession adverse to the State of Michigan, nor gain any rights by possession so held while the title was in the State of Michigan, any title which he may have gained prior to sale to the State by adverse possession or otherwise being cut off and extinguished by the said sale to the State aforesaid.”

Evidence introduced at the hearing on behalf of plaintiff tended to show that the 40 acres in question was unoccupied, uninclosed, wild land at the time of the hearing, and no testimony was introduced on behalf of defendant to the contrary. It was held in Griffin v. Kennedy, 148 Mich. 583 (112 N. W. 756), that:

“After the expiration of his right to redeem from a regularly conducted sale at which the State has purchased — and that is the case with the land in question —it (the State) owns and can dispose of the land as it pleases; and this is true though the former owner of the land continues in possession, for he is in possession without the right of possession.”

If the owner of the record title in possession is cut off by a sale of the estate, it is. clear that a mere trespasser can acquire no rights to possession which survive such sale. Subsequent to the sale the defendant acquired no right to possession because of his failure to serve the statutory tax notice. Powell v. Pierce, 168 Mich. 427 (134 N. W. 447), and cases cited.

The decree is affirmed.

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

Ostrander, J.

(dissenting). It was held in Pike v. Richardson, 136 Mich. 414 (99 N. W. 398), that the personal service of notice provided for in the tax law then in force was a service completed by filing a return; that the period for redemption after notice began when return of service of the notice was made. In other words, it found that the legal effect of the notice under the law then in force and in the form then provided by the law was precisely the effect indicated in the form introduced into the law by the amendment of 1905. The legal effect of the notice given in the case at bar was precisely the same as if the form of notice had corresponded with the amended law. How can it be said, then, that the law was not complied with by the giving of the notice? One form of notice promises and secures the same rights, as the other. In my opinion, the notice was good, and the decree should be reversed.

Stone, J., concurred with Ostrander, J. Person, J., did not sit.


author: MOORE, J.

text:
    DURHAM v. FEENEY.
    1. False Imprisonment — Evidence — Muskegon Charter — Ordinances — Arrest—Police Officer.
    In an action for illegal arrest and false imprisonment on the charge of soliciting for prostitution, the provisions of the charter of the city in relation to the duties of police officers, and the ordinance for the violation of which plaintiff was arrested, were admissible in evidence.
    2. Same — Evidence—Admissions.
    Plaintiff’s statement in the police court on the next morning after her arrest, in the nature of an admission, was admissible to show her understanding of the purpose of her conduct on the night of her arrest.
    3. Same — Evidence—Reputation—Chastity—Damages.
    Plaintiff having claimed damages because of injury to her reputation, evidence tending to show that her reputation for chastity was bad was admissible as bearing on the question of damages.
    4. Same — Arrest—Police Officers — Question for Jury.
    Where a question of fact was raised by the evidence as to whether plaintiff was violating the terms of an ordinance in the presence of the officer making the arrest, the issue should have been submitted to the jury.

    Error to Muskegon; Sullivan, J.
    Submitted October 5, 1916.
    (Docket No. 54.)
    Decided March 30, 1917.
    Case by Ruth Durham, a minor, by next friend, against William Feeney for false imprisonment. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Charles B. Cross and Willard J. Turner, for appellant.

      R. R. Gale, for appellee.

       Generally, as to liability of officer for making arrest, see notes in 51 L. R. A. 193, 42 L. R. A. (N. S.) 71; L. R. A. 1916F, 403.
      On evidence of character, in an action for' false imprisonment, see note in 14 L. R. A. (N. S.) 755.

   MOORE, J.

This action was brought for illegal arrest and false imprisonment. At the time of the occurrence which gives rise to this suit defendant was one of the police officers of the city' of Muskegon, and claims he made the arrest for the violation by the plaintiff in his presence of one of the ordinances of the city. The trial court instructed the jury that defendant was guilty, that their only duty was to fix the amount of damages. Plaintiff recovered a judgment for $135 and costs. The case is here for review upon writ of error.

The questions involved are discussed, under the following heads:

(1) Error in rulings on evidence.
(2) Prejudicial language of the trial court.
(3) Error in directing a verdict for plaintiff.
(4) Error in the judge’s charge.

We should consider the. case from the viewpoint of the defendant. It is his claim that complaint had been made of the conduct of plaintiff and her companion in soliciting men for the purpose of prostitution; that upon the night in question a complaint of that character had been made to the police department by the humane officer of the. city; that defendant, accompanied by the humane officer and another man, all in plain clothes, saw the plaintiff and another young woman of about her own age on the street. We quote from the officer’s testimony:

“I left the office that night and went down to the corner of Terrace street and Western avenue where I met Mr. Healy. We went from there down Terrace street, as far as Market; turned around the corner at the Chamberlain Hotel; walked down Market street towards the post office. When we got about back of Vanderwerp’s store there we passed Ruth Durham and Tillie Larson. * * * As we passed by one of them said, coughing, ‘Hello there, kid.’ * * * We passed them then, and we stopped on the corner by Fisk’s cigar store, and the girls walked by us over to the post office, and I followed them over, and I asked Ruth what she meant by that, the way they saluted us when we went by. Ruth said, T told her not to do that; that you were officers, and that we would get in trouble.’ I further questioned her and asked her if she made a business of stopping people and soliciting them on the streets, * * * and she said, ‘Yes.’ I said, ‘Did you just pick this gentleman up that you have got with you now?’ and she said, ‘Yes.’ I asked her if she knew him. She said, ‘No,’ she didn’t know the name, and I said, ‘When was the last time you picked anybody up?’ She said, ‘Last night.’ I said, ‘Where did you have him last night?’ She said ‘In the Schoenberg block,’ and Tillie was inside the post office at the time.
“The Court: There was no man there with her at the time you spoke to her?
“A. Yes, there was.
“Q. Talking to her?
“A. Why he was standing right with them. He was with them all the time going up Market street. * * * When we got over to the city hall I took the girls in the office across from the police headquarters and afterwards took them down in the women’s department and locked them up there. I am on duty nights and was at that time. My hours are from 6 in the evening until 6 in the morning. I leave at 6 in the morning. The justices of the peace are in their offices in the city hall from 9 a. m. until 12 and from 1:30 to 5 in the afternoon, and they are not in again until 9 the next morning.”

The other two men testified to substantially the same state of facts. Both of the young women were witnesses, and denied the statements made by the officer and his witnesses.

The defendant attempted to show that the next morning after the arrest the two women were taken before the police justice and arraigned for the violation of an ordinance approved June 25, 1878, and that, after the charge as contained in the complaint and warrant was read to them, they pleaded guilty, and that Ruth Durham was sentenced to pay a fine, and in default of payment that she be confined in the county jail. The written complaint and warrant were not produced in court, it was stated, because the magistrate was ill and not able to attend court. The judge excluded the offered testimony. An attempt was made to show by a witness who was present in the police court that the magistrate explained to the young women that they were charged with soliciting for the purpose of prostitution, contrary to the terms of the ordinance, and each said she was guilty. This proof was excluded, as were the charter provisions in relation to the duties of policemen and the ordinance which it is claimed was violated. An attempt was made to show the bad reputation of the plaintiff for chastity as bearing upon the question of damages. This was excluded. We get the impression from the active part taken in the conduct of the trial by the judge, as disclosed by the record, that he was of the impression an officer was not allowed to make an arrest without a warrant unless a breach of the peace or some greater offense was committed in his presence, and that what was done was not a breach of the peace.

In Burroughs v. Eastman, 101 Mich. 419 (59 N. W. 817, 24 L. R. A. 859, 45 Am. St. Rep. 419), it is held that the provision of the charter of the city of Grand Rapids which authorizes police officers to arrest without process all persons who shall, in the presence of an arresting officer, be engaged in the violation of any ordinance of the city is constitutional. We think the provisons of the charter of the city of Muskegon in relation to the duties of police officers should have been received in evidence. We also think the ordinance should have been received.

What was said by the plaintiff the next morning after the arrest before the police magistrate in the nature of an admission should have been received, as it tended to characterize plaintiff’s understanding of the purpose of her conduct on the night of the arrest. See People v. Gould, 70 Mich. 240, at page 243 (38 N. W. 231).

In her declaration plaintiff claimed the arrest entitled her to damages because of the effect upon her reputation. As bearing upon the question of damages, the evidence tending to show it was bad at the time of the arrest was admissible.

The record discloses a question of fact as to whether plaintiff was violating the terms of the ordinance in the presence of the officer when the arrest was made, which should have been submitted to the jury.

It is not necessary to discuss the other assignments of error.

Judgment is reversed, and a new trial ordered, with costs to defendant.

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, and Brooke, JJ., concurred. Person, J., did not sit.