author: Montgomery, J. Montgomery, J.

text:
    MERRINANE v. MILLER.
    1. Intoxicating Liquors — Sureties on Liquor Bonds.
    The sureties upon a liquor dealer’s bond are liable to a wife, injured by the sale of intoxicating liquors to her husband, for all damages sustained from the entire result to which such sales contributed, although the wrongful sales extended over a period of three years which were covered by different bonds. 2 Comp. Laws, § 5398.
    2. Same — Principal and Surety.
    Sureties are not usually presumed to have incurred any liability for acts preceding the execution of their obligation.
    3. Pleadings — Appeal and Error.
    Defects in a declaration are not considered where there was no demurrer and the question was not properly raised at the trial.
    4. Evidence — Expectancy—Mortality Tables.
    In determining the amount of damages, the mortality tables are competent evidence.

      5. Damages — Intoxicating Liquors — Bonds.
    Bondsmen of liquor dealers are not liable for damages in excess of the penalty of the bond which they execute.
    6. Judgments — Joint Dependants.
    A judgment against joint defendants for unlawful sales of intoxicating liquors cannot be entered as to principal and sureties in different amounts.
    on rehearing.
    Judgments — Praotioe.
    On a rehearing it is held that the plaintiff is entitled to discontinue against the defendants whose bonds were less than the judgment, which is conditionally affirmed as to the principal and one surety who executed two bonds with a combined penalty in excess of the amount recovered.
    Error to Jackson; Parkinson, J.
    Submitted June 3, 1908.
    (Docket No. 13.)
    Opinion filed November 2, 1908.
    Rehearing granted November 30,1908;
    reargued February 10, 1909;
    former opinion modified July 6, 1909.
    Case by Nettie Merrinane against James Fred Miller, a saloon keeper, and his bondsmen, under the civil-damage act. There was judgment for plaintiff, and defendants bring error.
    Affirmed conditionally.

      Elmer Kirkby, for appellants.

      B. S. Woodliff, for appellee.
   Montgomery, J.

This action was brought under the civil-damage act to recover against the defendant Miller and three different sets of bondsmen for damages sustained in her means of support by the plaintiff by reason of unlawful sales of liquor to her husband, John Merrinane, during the three years beginning, respectively, May 1, 1903, May 1,1904, and May 1, 1905. The case was before the court at a former term, and it was reversed mainly on the ground that the damages recovered were wholly inadequate. The case is reported in 148 Mich. 412 (111 N. W. 1050). On a retrial the plaintiff recovered a verdict against all the defendants in the sum of $5,925, and the defendants have brought the case to this court for review.

The circuit judge charged the jury that:

“ The undisputed testimony shows that Miller has violated this law and is liable in this case. * * * The evidence is undisputed that unlawful sales began during the time the first bond was in force, and extended into the second bond, and into, if not through, the period covered by the third bond; so that all the sureties who are made parties to this suit and are joined with Mr. Miller are equally liable.”

And again the court charged:

“You don’t have to separate out what occurred the first year, and put it on to Mr. Miller and his bondsmen for that year, and then Mr. Miller and his bondsmen for the second year, and Mr. Miller and his bondsmen for the third year, provided it was, as the evidence shows now, they began during the first year and ran right along through until it culminated in making this man what he was made finally by the unlawful sales of the third year.”

These instructions present the principal question in the case. The statute (2 Comp. Laws, § 5398) provides:

“Every wife * * * who shall be injured in person or property or means of support or otherwise * * * by reason of the intoxication of any person, or by reason of the selling, giving or furnishing any spirituous, intoxicating, fermented, or malt liquors, to any person, shall have a right of action in * * * her own name, against any person or persons who shall, by selling or giving any intoxicating or malt liquors, have caused or contributed to the intoxication of such person or persons, or who have caused or contributed to such injury, and the principal and sureties to the bond hereinbefore mentioned, shall be liable severally and jointly with the person or persons so selling, giving, or furnishing any spirituous, intoxicating, or malt liquors, as aforesaid, and in an action provided for in this section, the plaintiff shall have a right to recover actual and exemplary damages.”

The theory of the plaintiff’s case was that during the period covered by the declaration her husband had theretofore been a sober man, capable of earning a comfortable income for his family, but had been an habitual drunkard and wholly incapacitated to maintain his family, and that to this final result the various sales made during the three separate years had, in turn, contributed. In such a case, are the principal and the sureties on the bonds for each of the successive years responsible for the final consequences ? It would be difficult to reconcile all the authorities in the different States which deal with statutes differing somewhat in terms from those employed in our State. In Black on Intoxicating Liquors, § 299, it is said:

“ If the plaintiff’s cause of action is not founded upon a specific act of injury resulting from a particular fit of intoxication, but upon injury to her property or means of support caused by the habitual drunkenness of her husband, extending over a period of time, then all the dealers who furnish him with liquor during such time, knowing his habit of intemperance, and whose sales contribute to keep up such habit, are liable for the damages, though there was no concert or connection between them.”

In Steele v. Thompson, 42 Mich. 594 (4 N. W. 536), in dealing with a statute similar in terms, the question was whether the fact that the injury was helped on through the acts of others in furnishing liquor called upon the court and jury to make an apportionment of the liability among the separate contributors to the injury. In dealing with this question, Justice Graves said:

“The statute we are considering proceeds upon the idea that there has been an injury which the defendant, by some of the means indicated, has contributed to produce, and that he shall be liable for the whole injury, and not merely for such portion as a jury, if able to agree upon any scale of apportionment, may assign as his actual share or quota.”

This case was followed in Bowden v. Voorheis, 135 Mich. 648 (98 N. W. 406), in which case plaintiff was permitted to show frequent intoxications of her husband without proving that they were occasioned by liquor sold by the defendant. It was held that there was no error in receiving this testimony; the testimony showing that the plaintiff’s husband had, during a long period, frequented this saloon and bought liquor there at least once a week. It was said:

“ Plaintiff does not claim damages resulting from any particular intoxication of her husband. It is her claim that the sales of defendant contributed to her loss of means of support, shame, and disgrace. If they did— and whether they did or not was a question properly submitted to the jury — defendant was responsible for the whole injury, even though the sales made by others also contributed to produce it ” — citing and approving Steele v. Thompson, supra.

An examination of the record in that case discloses that the period covered by the declaration was more than a single year. It happened that the bondsmen in the two separate years were identical. There may be a seeming conflict between Bowden v. Voorheis, and Jewell v. Welch, 117 Mich. 65 (75 N. W. 283). There is, however, this distinction: In Jewell v. Welch the offer of proof was to show that a sale was made to a minor son of the plaintiff, and the son became intoxicated in the saloon of the defendant. Such intoxication was distinct and separate from any intoxication induced by liquors received from Mr. Flegler or anyone else. The defense interposed was that a settlement of an action brought against Flegler and his bondsmen operated as a matter of law to release the defendant Welch from liability in his action. This contention was negatived. It is to be noticed that under another provision of section 5398, any person who sells liquor to any minor is made liable for both actual and exemplary damages therefor in a sum not less than $50 in each case, and while the opinion of the court in the Jewell Case does not refer to this provision of the law, it is perhaps distinguishable from the present case on that ground. In Johnson v. Johnson, 100 Mich. 326 ( 58 N. W. 1115 ), the court laid down the rule that, where the plaintiff’s husband commenced a protracted and continuous debauch on a given day by drinking in defendant’s saloon, and his spree lasted for a considerable period the defendant is liable for all damages resulting therefrom. And in Franklin v. Frey, 106 Mich. 76 ( 63 N. W. 970 ), it was held that two several saloon keepers and the bondsmen of each may be joined in a single action for damages. While in Johnson v. Johnson the acts of the defendant were more clearly a cause of the continuing disability of the plaintiff’s husband than in the present case, yet we think the principle in the present case is the same. In both, the sales made on the several occasions were unlawful. In both, these unlawful sales contributed to bringing about a final result; in the present case, the total disability of plaintiff’s husband. While the result may seem harsh to the defendant, the statute is purposely made harsh. It was the clear intent to make it possible for the plaintiff to make proof against the parties who contributed to the downfall of one upon whom she was dependent, by means of unlawful sales of liquor. The consequences of such unlawful sales may be said to be far-reaching, but no more so than was requisite to adequately compensate the injured party.

It is said, and truly, that the general rule is that a surety is not to be presumed to have meant to become responsible for acts committed before he signed the obligation. But such is not the result of this reasoning. There could be no liability unless an unlawful act were committed after the signing of this obligation, and, in the light of this statute, which makes the principal and sureties liable for any contribution to the injury, the sureties must be held to have undertaken the obligation indicated by this opinion. See, also, Wood v. Lentz, 116 Mich. 275 (74 N. W. 462).

The alleged defects in the declaration we need not discuss at any length, as there was no demurrer, and the point was not properly raised on the trial.

The mortality tables were competent evidence. See Brockway v. Patterson, 72 Mich. 122 (40 N. W. 192, 1 L. R. A. 708).

We think, however, error was committed in entering judgment for an amount in excess of $3,000. The defendant Corwin was a surety for the year 1903 in the sum of $3,000. The defendant Rank was a surety only during the year 1905, and his obligation was limited by his bond to $3,000. It is ui’ged in the brief of plaintiff that the penalty of the bond does not limit the liability, but that the sureties on the bond are liable to any amount by virtue of their relation to the principal, and that the liability is not limited by the penalty of the bond. We cannot assent to this view. We think the statute fixing the liability of the sureties must be read in connection with the provision requiring a bond and fixing the penalty thereof. The proper judgment to have entered, therefore, would have been a judgment for $3,000 only. It was sought to remedy this error later by limiting the liability, against the two defendants who were joined, to $3,000, and by permitting the judgment to stand, as against the other defendants, at the amount found by the jury. This did not cure the defect. As was said in Lafler v. Monroe Circuit Judge, 118 Mich. 677 (77 N. W. 265):

“A satisfaction by one defendant would discharge the action. There is no provision of statute for severing in an action ex delicto, or for entering a judgment in one sum against one defendant, and in a- greater sum against another.”

The plaintiff elected to proceed to final judgment against all the defendants, and the judgment should be reversed and a new trial granted, unless the plaintiff shall elect to remit from her judgment all in excess of $3,000.

Grant, C. J., and Blair, Ostrander, and Hooker, JJ., concurred.

on rehearing.

Montgomery, J.

This case was determined at the October term, 1908, and is reported ante, 279 (118 N. W. 11). A motion for a rehearing was granted upon the application of the plaintiff, it being contended that this court was in error in requiring a remittitur from the judgment down to $3,000 as against all the defendants, for the reason that it appeared that the plaintiff, on defendants’ application for a new trial in the circuit court, consented that the court might grant a new trial to the defendants Corwin and Rank, who were limited in their undertaking to the amount of $3,000, and also that the plaintiff subsequently asked the circuit court to enter an order discontinuing the case as to Corwin and Rank, who had signed for only $3,000. Under these circumstances, it is claimed that the judgment should stand as against the principal and the surety Teufel, who was a surety on two bonds amounting in the aggregate to $6,000, a sum less than the amount of the verdict and judgment.

Our attention is directed to the case of Moreland v. Durocher, 121 Mich. 398 (80 N. W. 284), as bearing upon this question. It must be admitted that the importance of this case, as bearing upon the question under consideration, escaped the attention of the court at the former hearing. That case was an action against two liquor dealers and their bondsmen, and judgment was had against all the defendants in the sum of $1,200, and, upon a motion of one of the principals and his bondsmen, a motion for a new trial was granted, and the judgment allowed to stand as to the other principal and his bondsmen. In principle the case is not to be distinguished from the present. The finding of the jury in the present case is that all the defendants are liable for the amount of the verdict, and it is true in this case, as it was in that, that the plaintiff might have proceeded against the defendants as to whom she now claims that the judgment should stand, or might have discontinued as to the codefendants at any stage of the proceedings. In the language of the court, in that case:

“ It is not easy to perceive, therefore, where the action is thus severable as well as joint, and where the right exists to proceed against a portion or all of the defendants, why the plaintiff should be compelled to lose her judgment against a portion because it appears that the others are entitled to a new trial.”

It is claimed that to permit a discontinuance as to a portion of the defendants would be inequitable, and the case of Albright v. McTighe, 49 Fed. 817, is cited as a case in point. In that case the court was exercising a discretion in refusing to grant a new trial. It differs from the present case in that respect. In the present case the question is as to whom the judgment as entered is erroneous, and as to them only is a new trial justified.

We are constrained to hold that we were in error in directing a reduction of the judgment.

The judgment will be reversed, unless the plaintiff shall elect to discontinue as to the defendants Corwin and Rank, and, if she shall so elect, the judgment will stand affirmed.

Blair, C. J., Grant, Ostrander, Hooker, Moore, McAlvat, and Brooke, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J. Grant, J.

license: Public Domain

text:
    HEATH v. CALKINS.
    Negligence — Druggists—Explosives.
    Where an employé of the defendant, a druggist, was injured in an explosion of flash-light powder furnished by his employer, and the testimony tended to show that the powder which defendant claimed to have furnished would not have been dangerous, an inference might be drawn that the powder in fact furnished was not that claimed by the employer, and should have been submitted to the consideration of the jury. Grant, Ostrander and Brooke, JJ., dissenting.
    Error to Washtenaw; Kinne, J.
    Submitted January 18, 1909.
    (Docket No. 20.)
    Reargued June 14, 1909.
    Decided July 6, 1909.
    Case by Homer L. Heath against Eleazer E. Calkins for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Frank A. Stivers and Homer B. Mallow (M. J. Lehman, of counsel), for appellant.

      Blum & Sample {Arthur Brown and Edson B. Sunderland, of counsel), for appellee.
   Hooker, J.

The defendant was a druggist. He was also engaged in the business of photography, especially that of taking flash-light pictures. The pictures were generally taken by one Thomas, assisted by the plaintiff, who usually operated the flash light. Both were employés of the defendant. On the occasion of the accident which led to this action, the defendant procured some flash-light powder supposed to be similar to, if not identical with, that generally used by him. The manufacturer testified that it was identical with it, and there is no testimony, aside from the fact of the accident, tending to contradict such statement, unless it be the fact that it was called by a different name, which was explained. It appears to be conceded that the flash-light powder theretofore used had never appeared unsafe. It had been the practice to mix magnesium with such powder, which was usually, if not always, furnished by the defendant, “ or whoever was in his store,” to Thomas, who mixed it with the powder. This was to get a maximum amount of light, and they were mixed in equal proportions. It was the practice to mix it in the store on the scales. There was evidence that the addition of magnesium to the powder would not tend to make it explosive, that it would give no such property to the flash-light powder, and this testimony was uncontradicted. Thomas testified that on this occasion the defendant personally gave him the powder. He does not say who gave him the magnesium unless it is to be inferred from the statement:

“ Mr. Calkins furnished me the powder which I used in making my preparation for the flash light. He furnished it to me personally, and I mixed it in the store as usual. * . * * I took this powder and mixed it exactly the same way as I had always done, equal parts of the magnesium and the powder.”

This was uncontradicted. The use of this powder was accompanied by a violent explosion, and plaintiff lost his hand. The defendant claims that this is conclusively shown to have been a safe powder; that magnesium was used with it; that magnesium could not cause the mixture to be explosive. His counsel therefore contend that the explosion is a mystery, and that it is not shown that he has been negligent. It is also said that in furnishing powder procured from a reputable dealer he discharged his whole duty. The trial judge directed a verdict for the defendant, and plaintiff has° appealed.

It is a self-evident proposition that this mixture ex- ■ ploded. It is therefore a natural, though perhaps not an inevitable, inference that the explosive property should be sought in the powder itself, or in the ingredient itself, or, if in neither alone could it be found, then in the combination of the two ingredients. Was there any evidence from which an inference could be drawn which it was ? Under the evidence, the powder was not explosive, the magnesium was not explosive, and the combination of the two in equal parts would not be, and never had been within the parties’ experience, explosive; If the jury were convinced of these things, they would naturally suspect that some mistake was made, and that magnesium or flash-light powder was not used, but some other powder or mixture more harmful. The testimony on this subject might be more satisfactory. If Thomas’ testimony will bear the construction that defendant personally delivered to him both ingredients, about which minds might differ, it does not unequivocally show that one was magnesium, while the defendant is silent upon the subject. We are of the opinion that there is evidence in this case from which the jury may have found that this explosion was due to the flash-light powder, though the weight of the testimony on this record was clearly and strongly against it. Whether the defendant could be said to be negligent, in view of the source from which he purchased, we need not decide, because it was competent for the jury to find that the explosion was caused by the other ingredient, and that, magnesium not being explosive, or capable of making the mixture explosive, it must have been something else, and, if so, and it was negligently furnished by defendant himself, or his drug clerk, he might be liable, while, if procured by Thomas himself, the question of negligence of a fellow-servant might perhaps be controlling, a point we do not decide.

Counsel contend that this explosion might have been due to other causes, as that the bottle with powder in it might have been left in the pan, and, being confined, an explosion resulted, while, had it been properly used, there would have been no explosion, and that color is given to this theory by the fact that the bottle was never found. Other causes are suggésted, such as that too much powder was used, or the wrong bottle taken by Thomas by mistake. If there was evidence tending to show any of these, they were legitimate inquiries for the jury, and if each of these causes was as probable as any of the others, the learned circuit judge was right. Whether there was evidence tending to prove all of these, we cannot say. We think not, but we do think that there is testimony from which a juror might reasonably believe that a substitute for magnesium was used through defendant’s error or that of his clerk, and it was for the jury to say whether, under the proof, this was the more probable theory. If they could not say that, they would be unable to reach a verdict for plaintiff on that theory, for the plaintiff should not recover upon proof of facts equally as consistent with the absence of negligence on the part of defendant as with it. In some cases we can say that of testimony. In others, it is of necessity a question for the jury. We think that this case belongs to the latter class.

The judgment is reversed, and a new trial ordered.

Blair, C. J., and Montgomery, Moore, and McAlyay, JJ., concurred with Hooker, J.

Grant, J.

(dissenting). I am unable to concur in the result reached by my Brother Hooker. There is little, if any, conflict in the evidence. The cause of this explosion, like many another involving the use of explosive chemicals, rests in doubt. There is no evidence by which a jury can fasten the responsibility therefor upon anyone. The powder purchased was a standard article of commerce, used in taking flash-light photographs. It was purchased from a reputable firm in Chicago. It was manufactured by one Frank, who had manufactured the same article for years. The manufacturer sold it in the name of “Magic Powder.” The Chicago firm desired to use it in the name of “Ideal Powder,” and had made arrangements with the manufacturer to so use it. The testimony was undoubted that it was the same as that sold under the label “Magic Powder.” No instance is shown that the powder ever before exploded with such force. The manufacturer testified that he had always tested the powder, that it was ready for use, and that no further test by the photographer was necessary. There was therefore nothing to indicate that this identical box of the material was composed of any other than the usual chemicals in the proper proportions, except the fact that it exploded. The evidence is equally explicit and conclusive that the defendant’s employé, Mr. Thomas, mixed nothing with it except magnesium, which does not add to the explosive character of the powder, and that he used it in the usual manner as he had so often done before. Did Mr. Thomas make a mistake and mix some dangerous explosive, instead of using the magnesium ? There is nothing to show that he did, except the mere fact of the explosion. There is not even anything to show that there were any dangerous explosive chemicals in the store which might accidentally have been used.

No duty rested upon the defendant to test every package or charge of this powder before using it. It was manufactured, advertised, and labeled as ready for use and safe, and experience had shown that it was. In buying and using it, defendant exercised all the care the law requires. Siegel v. Heating Co., 143 Mich. 484 (106 N. W. 1127). Neither was it customary for the users thereof to make such tests. One juror might guess that the trouble was with the powder, and might base the guess upon the fact that the powder marked “ Ideal ” was withdrawn from market thereafter, because defendant tried to buy some after the accident in order to make tests, but could not find any. Another juror might guess that it was most likely that something else besides magnesium was used by Thomas, the defendant’s clerk, in mixing the powder. As above stated, there is nothing to support either theory except the fact of the explosion. Another juror might guess that someone had tampered with the powder. Others might have different theories.

I think the learned circuit judge correctly summed up the situation in directing a verdict, when he said:

“No evidence has been introduced establishing either the proximate or remote cause of this unfortunate accident. If there is any person who can explain the mystery of this accident, he has not been produced, or at least he has given no testimony upon that subject. It therefore remains a mystery how or what caused this explosion.”

It is certainly as reasonable to suppose that in some way there was a defect in the powder of the package used caused by some neglect on the part of the manufacturer as it would be to suppose that the defendant by mistake furnished a dangerous explosive rather than the innocent material, magnesium, or that in some manner some dangerous explosive had become mixed with the magnesium used. The former seems to me the more reasonable supposition, because the manufacturer used dangerous explosives in the manufacture of the powder, while there is no evidence, or attempt to introduce any, that the defendant kept or used any dangerous explosive which could by any possibility have become mixed with the magnesium or have been supplied instead of it. There is no preponderance of evidence in favor of any theory advanced. To submit such a case to a jury would be to turn them loose into a field of mere speculation with no evidence to guide them to the cause of the explosion, or the responsibility for it.

Furthermore, I think the declaration is clearly based upon the idea that the fault lay in the powder which the defendant had purchased and furnished for use on this occasion, and not upon any idea that the defendant had mixed a dangerous explosive with that purchased. It appears from the record, as above stated, that this “Ideal Powder” was the same as that known as “Magic Powder,” but that defendant did not know this when he stated to plaintiff’s mother that the powder was a new one which he had never used before, and that he thought there was something the matter with the powder. The declaration contains no intimation of a charge that the defendant had himself mixed some dangerous explosive with the commercial article, which he had a right to purchase and sell without testing, and there is no evidence that he did so.

Evidently the case was tried upon the theory that the fault lay in the original powder, and not in the magnesium with which it was mixed.

The judgment should be affirmed.

Ostrander and Brooke, JJ., concurred with Grant, J.


author: McAlvay, J. Blair, C. J.

text:
    LAWRENCE v. VINKEMULDER.
    Homestead — Contract to Convey.
    A contract to convey the defendant’s homestead, not executed by his wife, is held by an equal division of the court to be invalid to create right of action for damages. Const. o£ 1850, Art. 16, § 2. MoAlyay, Grant, Montgomery, and Brooke, JJ., dissenting.
    Error to Kent; Perkins, J.
    Submitted October 12, 1908.
    (Docket No. 35.)
    Decided July 6, 1909.
    Assumpsit by Wilbur E. Lawrence against Henry J. Yinkemulder for breach of a land contract. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed by an equally divided court.

      McKnigM & McAllister, for appellant.

      Smedley & Corwin, for appellee.
   McAlvay, J.

Plaintiff brought suit against defendant to recover damages arising on account of defendant’s failure to perform an agreement in writing to sell and convey to him a certain house and lot situated in the city of Grand Rapids. The facts in the case are not in dispute. The value of the property appears to be from $8,000 to $9,000. The price plaintiff agreed to pay was $7,500. He has performed in all respects on his part, and made tender of the final payment. Defendant agreed, upon performance by plaintiff, to surrender possession and convey the premises to him by a good and sufficient conveyance in fee simple, free and clear from all liens and incumbrances. This he refused to do, on the ground that the premises were his homestead, and the contract was not signed by his wife, and that she refused to join in a deed. That this was his homestead is not disputed, and there is no claim that the -contract was entered into through fraud. At the trial, after the proofs were closed, defendant requested the court to instruct a verdict in his favor. This motion was granted; the court holding that plaintiff could not recover damages on account of failure and refusal to perform this contract on the part of defendant. Plaintiff has assigned error upon such action of the court, and asks us to reverse the judgment entered upon such instructed verdict.

It is agreed that the case presents but one question: Can damages in an action at law be recovered against one who has agreed in writing to sell and convey certain real estate by warranty deed, at a future time, for his refusal to perform on the ground that the property was his homestead, and that the agreement was not signed by his wife ? The defense relies upon the prohibition of section 2, article 16, of our State Constitution, and the decisions of this court, which it is claimed hold that such an agreement is absolutely void for all purposes. The constitutional provision is as follows:

“Every homestead of not exceeding forty acres of land * * * or instead thereof, at the option of the owner, any lot in any city, village or recorded town plat, or such parts of lots as shall be equal thereto, and the dwelling house thereon and its appurtenances, owned and occupied by any resident of the State, not exceeding in value fifteen hundred dollars, shall be exempt. * * * Such exemptions shall not extend to any mortgage thereon, lawfully obtained, but such mortgage, or other alienation of such land by the owner thereof, if a married man, shall not be valid without the signature of the wife of the same.”

An examination of the case of Dikeman v. Arnold, 78 Mich. 455 (44 N. W. 407), shows that the question has been once before considered by this court. That case was twice before the court. It is first reported in 71 Mich. 656 (40 N. W. 42). This action at law was brought to recover damages for a refusal to convey lands, including a homestead, under a written agreement not signed by the wife. From the original record in the case, reported, in 78 Mich. 455 (44 N. W. 407), it appears that the defense was the same as in the case at bar. In that case other lands were included in the agreement. The parties agreed to make an exchange of properties on certain terms. The principal disputed question of fact was whether defendant had received and accepted a certain deed of premises which plaintiff Dikeman agreed to furnish as part of the transaction. If this deed had been delivered and accepted, then the question whether the contract on Arnold’s part was a valid one was the question of vital importance. Claiming that this contract was void, defendant assigned error upon the following portion of the charge of the court:

“ The contract offered in evidence by which it is claimed that the defendant agreed to convey his property to the plaintiffs was perfectly valid, without the signature of his wife.”

Also to this:

“ It is not the duty of the plaintiffs to obtain the consent of Mrs. Arnold to the contract in question. If the defendant accepted the deed, and made this contract, not knowing whether his wife would sign or not, he was bound by such acceptance.”

This was argued at length in defendant’s brief, in which it was stated

“The theory of the plaintiffs is that this contract was valid and binding on Arnold, and that he failed to perform it, and that they are therefore entitled to recover for such breach, even though Mrs. Arnold did not sign it.”

The court was requested to direct a verdict for defendant upon this ground. In the opinion (when the case was last before the _pourt) it was said:

“The defendant requested the court to instruct the jury that this suit was to recover the purchase price of the land, and not for damages for not deeding, and that the fact that Arnold had made the written contract and refused to carry it out would not sustain this action. This was not given as requested. * * * - We think the court committed no error in this regard. He fairly put the issue to the jury upon the question whether or not the plaintiffs’ deed was delivered to, and accepted by, the defendant on the 16th of June. If the jury found that it was not accepted, the case was ended, and the contract cut no figure in it. If they found the deed was accepted, then the fact that Arnold had made this contract and refused to carry it out was material and important in the case.”

The opinion then discusses the question of damages, and refers to the amendment of the declaration to conform with the ruling of the trial court on the first trial according to defendant’s theory of damages. Then the court proceeds:

“ It is now strenuously insisted that the plaintiffs cannot recover in this action as now entered as to damages, because the contracts of the 11th and 16th of June are absolutely-void, for the reason that part of the premises mentioned in said contracts is the homestead, and that the same could not be deeded or contracted away without the signature of Mrs. Arnold.”

The court then discussed further as to damages, and the rule in Pierson v. Spaulding, 61 Mich. 90 (27 N. W. 865), applied to the case on its first hearing, was adhered to.

Coming back to defendant’s claim that the contracts were absolutely void, the court said that Arnold’s contracts could not be considered absolutely void; that they must be held good to the extent of lands not embraced in the homestead (citing Michigan cases), and then proceeding :

“In Phillips v. Stauch, 20 Mich. 369, where a specific performance was denied in a case where a portion of the premises was a homestead, and the wife did not join in the bond for a deed given by the husband, the bill was dismissed without prejudice to any proceeding at law which the complainant might ‘be advised to institute upon the bond for a deed mentioned in the pleadings.’ See pages 381, 384. This, in view of the reasoning of the opinion in the case, is an intimation that the complainant could sue upon the bond at law for damages. We think the contract was good as between Arnold and the plaintiffs. He knew when he made it that he could not perform it without the signature of his wife to the deed. He, in effect, bound himself to procure such signature. It in no wise differs in this respect from a contract to sell lands which one does not own at the time he makes such contract. The fact that one did not have the legal title at the time he made the contract, and could not procure it after-wards, has never been recognized as a legal defense to an action for breach of the contract. The rule of damages was the proper one under the declaration in this case and the theory of the plaintiffs.”

Considerable time has been devoted to the consideration of the above case because of the claim that the question in the case at bar has never been before the court.

Not only in Phillips v. Stauch, referred to in theabove opinion, but also in Hall v. Loomis, 63 Mich. 711 (30 N. W. 374), was the bill of complaint dismissed without prejudice to proceedings at law. In both cases the bills were filed to enforce specific performance of the contracts. It is-well settled in this State that such contracts will not be specifically enforced. The numerous Michigan cases cited and relied upon by defendant are all cases brought to enforce specific performance. As there is no dispute as to what question of law was involved in those cases, it will be unnecessary to give the citations. The statements of the court in these cases that such contracts were “ wholly invalid,” “a nullity,” “absolutely void',” etc., must be considered as made with reference to the question involved, and, when applied to the question now under discussion, or any other questions, are mere dicta.

In the case at bar no divestiture of title to a homestead is sought by enforcement in chancery or otherwise. The prohibition of the Constitution does not make the sale of a homestead by both husband and wife invalid, nor an agreement signed by both to sell the same. Nor is a husband or wife prohibited from soliciting the other to sell. If he makes an agreement to sell and convey in the future, and is unable to perform, the law protects the wife and family in the homestead, but in Dikeman v. Arnold, supra, this court has held that an action for damages sustained will lie against the husband for breach of his contract. In Iowa, Minnesota, Kansas, Nebraska, and North Dakota a contrary rule prevails. The Texas courts are in harmony with Michigan. Dikeman v. Arnold, supra, has never been overruled by this court. It is therefore controlling in this case. The circuit court was in error in instructing a verdict for defendant.

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

Grant, Montgomery, and Brooke, JJ., concurred with McAlvay, J.

Blair, C. J.

This case presents the single question whether the vendee in a land contract not signed by the vendor’s wife, for the purchase and sale of a house and lot, valued at from $8,000 to $9,000, constituting their homestead, may maintain an action at law for damages against the vendor for failure to carry out his contract. This court has uniformly held that a contract to convey the homestead is not merely voidable, but void. Phillips v. Stauch, 20 Mich. 369; Hall v. Loomis, 63 Mich. 709 (30 N. W. 374); Engle v. White, 104 Mich. 15 (62 N. W. 154); Gadsby v. Monroe, 115 Mich. 282 (73 N. W. 367); Rogers v. Day, 115 Mich. 664 (74 N. W. 190, 69 Am. St. Rep. 593); Webster v. Warner, 119 Mich. 461 (78 N. W. 552); H. Stern, Jr., & Bros. Co. v. Wing, 135 Mich. 331 (97 N. W. 791); Lott v. Lott, 146 Mich. 580, (109 N. W. 1126, 8 L. R. A. [N. S.] 748).

It being settled that a contract to sell and convey the homestead, signed by the husband only, is a mere nullity, it logically follows that no rights whatever can be predicated upon it. Ex nihilo nihil. To this effect is the overwhelming weight of authority '. 15 Am. & Eng. Enc. Law (2d Ed.), p. 670; Lichty v. Beale, 75 Neb. 770 (106 N. W. 1018); Weitzner v. Thingstad, 55 Minn. 244 (56 N. W. 817); Barnett v. Mendenhall, 42 Iowa, 296; Cowgell v. Warrington, 66 Iowa, 666 (34 N. W. 266); Thimes v. Stumpff, 33 Kan. 53 (5 Pac. 431); Hodges v. Farnham, 49 Kan. 777 (31 Pac. 606); Silander v. Gronna, 15 N. Dak. 552 (108 N. W. 544); Mundy v. Shellaberger, 153 Fed. 219.

The case of Dikeman v. Arnold, 78 Mich. 456 (44 N. W. 407), is not inconsistent with this conclusion. That case differs from this in that the contract covered lands not embraced within the homestead. Mr. Justice Morse, in the course of the opinion, said:

“ But the contract was not void as far as the land was concerned not embraced within the homestead; and, if he had deeded in conformity with it, such deed would have conveyed his title to the excess over and above the homestead. Stevenson v. Jackson, 40 Mich. 702; Dye v. Mann, 10 Mich. 291; Wallace v. Harris, 32 Mich. 380; Shoemaker v. Collins, 49 Mich. 595, 597 (14 N. W. 559). In Phillips v. Stauch, 20 Mich. 369, where a specific performance was denied in arcase where a portion of the premises was a - homestead^ and the wife did not join in the bond for a deed given by the husband, the bill was dismissed without prejudice to any proceeding at law which the complainant might ‘be advised to institute upon the bond for a deed mentioned in the pleadings.’ See pages 381, 384. This, in view of the reasoning of the opinion in the case, is an intimation that the complainant could sue upon the bond at law for damages. We think the contract was good between Arnold and the plaintiffs. He knew when he made it that he could not perform it without the signature of his wife to the deed. He, in effect, bound himself to procure such signature. It in nowise differs in this respect from a contract to sell lands which one does not own at the time he makes such contract. The fact that one did not have the legal title at the time he made the contract, and could not procure it afterwards, has never been recognized as a legal defense to an action for breach of the contract.”

Clearly, what was meant in saying that “the contract was good between Arnold and the plaintiffs ” was that it was good as to the excess, just as it had been said that a deed “would have conveyed his title to the excess over and above the homestead.” See Sammon v. Wood, 107 Mich. 506 (65 N. W. 529). This is no different than the rule which prevails in equity in this State. Engle v. White, supra; Lott v. Lott, supra.

The judgment is affirmed.

Ostrander, Hooker, and Moore, JJ., concurred with Blair, C. J.

       See Constitution of 1908, Art. 14, § 2.


author: Hooker, J.

text:
    RANNEY REFRIGERATOR CO. v. SMITH.
    1. Taxation — Drains—Jurisdiction.
    Jurisdiction is conferred on the drain commissioner to lay out and construct a drain, by a petition therefor in due form.
    2. Same.
    The fact that a description of the route does not give the precise direction, does not avoid the proceedings, where a general description of the beginning, route, and terminus was included.
    3. Same — Delay.
    The delay of upwards of a year in proceeding to a determination of the necessity for a drain is not unreasonable where it appeared that the commissioner with whom the petition was filed had been succeeded by a new commissioner during the interval, and neither is shown to have unreasonably delayed the proceedings.
    4. Same — Right of 'V^ay.
    An irregularity in obtaining the release of a right of way across plaintiff’s land, where the instrument, although signed by the president and secretary, was not authorized by its board of directors, does not avoid the assessment, in view of plaintiff’s failure to review the proceedings on certiorari as provided for by 2 Comp. Laws, § 4346, as amended by Act No. 27, Public Acts 1899.
    5. Same — Levy and Spreading op Tax.
    That the tax was spread before the record had been deposited with the county clerk, under 2 Comp. Laws, § 4314, and the apportionment and review completed before the proof of service of the required notice was made, if notice was actually given, are mere irregularities and do not affect the validity of the proceedings.
    Error to Bay; Collins, J.
    Submitted January 5, 1909.
    (Docket No. 6.)
    Decided July 6, 1909.
    Assumpsit by the Ranney Refrigerator Company against Jacob J. Smith, township treasurer, and Herbert Shell, county drain commissioner, for taxes paid under protest. A judgment for defendants is reviewed by plaintiff on writ of error.
    Affirmed.

      C. L. & C. B. Barden and George E. Nichols, for appellant.

      Campbell & Foster, for appellees.
   Hooker, J.

The plaintiff, a corporation, has brought this action against a township treasurer and a drain commissioner to recover certain drain taxes paid under protest. It is brought under the provisions of 2 Comp. Laws, § 4359, which provides:

“All drain taxes assessed under the provisions of this act shall be subject to the same interest and charges, and shall be collected in the same manner as State and other general taxes are collected, and collecting officers are hereby vested with the same power and authority in the collection of such taxes as are or may be conferred by law for collecting general taxes. In all cases where suit is brought against the collector arising out of the collection of any drain tax, the county shall defend such officer in the same manner that he has now the right to be defended in the collection of general taxes. No suit shall be instituted to recover any drain tax or money paid or property sold therefor, or for damages on account thereof, unless brought within thirty days from the time of payment of such money to, or sale of such property by, the collecting officer; and if such tax shall be paid under protest the reasons therefor shall be specified, and the same procedure observed as is or may be required by the general tax law. All taxes levied under the provisions of this act, or of act number two hundred and sixty-nine of the session laws of eighteen hundred and eighty-one, with all lawful costs, interest and charges, shall be and remain a perpetual lien upon the lands upon which they are assessed and a personal claim against the owner or owners of such lands until they are paid.”

Plaintiff claims that the tax was void for two reasons, viz.: (1) There was no jurisdiction to levy or spread said tax. (2) The tax was void because excessive. The drain has been constructed and, we understand, mostly paid for.

The alleged want of jurisdiction involves the following questions: (1) The sufficiency of the petition. (2) The lapse of nearly a year between the time of filing the petition for the drain and the first order of determination. (3) The failure to lawfully acquire a right of way across plaintiff’s land. (4) The failure to file or make proof of publication or posting of notice before the letting and review of the assessment. (5) The failure to file the proceedings in the county clerk’s office before the taxes were spread.

J urisdiction of commissioner. A petition in due form confers jurisdiction on the drain commissioner, regardless of subsequent irregularities. Hall v. Slaybaugh, 69 Mich. 484 (37 N. W. 545); Lanning v. Palmer, 117 Mich. 529 ( 76 N. W. 2); Seibert v. Lovell, 92 Iowa, 507 (61 N. W. 197); 14 Cyc. p. 1029, 1030; 10 Current Law, p. 1635; Hinkley v. Bishopp, 152 Mich. 256 (114 N. W. 676).

Description. It is contended that the petition was void by reason of the vagueness of the description of its course, viz., “thence in a southwesterly course about 60 rods.” This language precedes the following: “Thence west to the Cedar Creek.” This description was sufficient under the rule of Hinkley v. Bishopp, supra. It “gave a general description of the beginning, the route and the terminus of the proposed drain.”

Delay. The petition for the drain was filed with C. W. Van Valkenburg, then drain commissioner of Gladwin county, on July 27, 1903. He was succeeded in office on January 1, 1904, by Shell, to whom the petition came with other official papers at that time. Shell made the first order of determination on September 9, 1904. Appellant’s brief states that “no explanation of this delay is showp.” This action is within the rule of Davison v. Otis, 24 Mich. 23. We are satisfied that the commissioner had .jurisdiction to proceed to lay out the drain.

Right of way. It is contended that the commissioner lost jurisdiction by reason of the alleged failure to obtain a legal release of the right of way. The plaintiff is a corporation owning a parcel of land traversed by the drain. The first order of determination was made on September 9, 1904, after a survey. The commissioner proceeded to get releases of the right of way, among them one upon plaintiff’s land, signed and acknowledged by plaintiff’s president and secretary, and under the seal of the corporation. It is contended that this release was void, for the reason that the board of directors had not authorized it in the way provided by plaintiff’s by-laws, viz.:

“ No real estate shall be conveyed, mortgaged, or leased except by resolution of the board of directors passed at a meeting of said board, and duly recorded in the records of said company.”

On July 28, 1905, the commissioner made his final order of determination. It stated that all damages by reason of the construction had been released by all the owners of land traversed by the drain. A notice of letting followed, the plaintiff being served with the notice. As was said in Hinkley v. Bishopp:

“ No person owning land traversed by the drain undertook to review the proceedings by certiorari [ see Auditor General v. Crane, 152 Mich. 94 (115 N. W. 1041)], and no such person complains or asks in this cause relief from the appropriation of the land for the drain.”

We may add that this plaintiff did not attempt to prevent or stop the construction of the drain, of which it must have been informed. Now it attempts to escape its proportion of the cost by this action. Were it some other person whose land had been irregularly appropriated, this plaintiff could not make such irregularity the basis of this action. The proceedings to acquire the right of way, and those to apportion benefits are separate and distinct. See Hinkley v. Bishopp, supra; Hoffman v. Shell, 151 Mich. 669 (115 N. W. 979). Were this a proceeding to overturn the condemnation of plaintiff’s land, plaintiff’s right to relief would be doubtful under Auditor General v. Crane, supra. But it is not, and we need only say that we are concerned only with the questions relating to the apportionment and assessment of benefits.

Levy and spreading of tax. These alleged defects are: (1) The making of the apportionment before proof of service of notice was made. (2) The spreading of the tax before the filing of the papers in the proceeding with the county clerk. (3) An excessive amendment. These proceedings are, at most, irregularities.

Proof of notice before apportionment. The record shows the service, posting, and' publication of the notice of the time and place appointed by the commissioner for apportionment and review. Proof thereof was not made at or previous to the review. That was not fatal to the proceedings, provided notice was actually given. Murphy v. Dobben, 137 Mich. 565 (100 N. W. 891).

Spreading tax. The tax was spread before the record had been deposited with the county clerk, This was contrary to the provisions of 2 Comp. Laws, § 4314. While we have held that a mandamus will not issue to compel the spreading of a tax under such circumstances (see Conley v. Board of Sup’rs of St. Clair Co., 88 Mich. 245 [50 N. W. 140]), we have also held that, if spread, such tax is not necessarily recoverable though paid under protest (Matrau v. Tompkins, 99 Mich. 528 [58 N. W. 472]). We understand that this was in effect holding the provision against spreading the tax to be directory. The apportionment was not necessarily invalid because the tax was prematurely spread, and, the requisite papers being afterward filed, plaintiff’s claim is technical, and it should not be allowed to recover on that ground. See Gratwick, etc., Lumber Co. v. Village of Oscoda, 97 Mich. 221 (56 N. W. 600); Minor Lumber Co. v. City of Alpena, 97 Mich. 499 (56 N. W. 926); Matrau v. Tompkins, supra. See, also, 2 Comp. Laws, §§ 4359, 4364, 4365. As the record shows that the tax as spread was less than the law permitted the commissioner to impose, plaintiff has no cause of complaint on this ground.

The judgment is affirmed.

Blair, C. J., and Grant, Moore, and Mo Alva y, JJ., concurred.


author: Montgomery, J.

text:
    FITZPATRICK v. MANHEIMER.
    Fraud — Sales—Variance.
    In an action for fraud, based on a warranty that certain accounts alleged to have been sold by defendants to plaintiff amounted to a given sum, the jury should have been instructed that the plaintiff con Id not recover, under his declaration, if the accounts were in fact sold to him by a third person who participated in the transaction as principal, and was known to plaintiff to be the real vendor.
    Error to Hillsdale; Chester, J.
    Submitted January 20, 1909.
    (Docket No. 131.)
    Decided July 6, 1909.
    Case by Merton Fitzpatrick against Sanford Manheimer and Aaron Manheimer, copartners as Manheimer Brothers, for breach of warranty on the sale of certain accounts. A judgment for plaintiff is reviewed by defendants on writ of error.
    Reversed.

      Corvis M. Barre (B. E. Sheldon, of counsel), for appellants.

      Merton Fitzpatrick and Grant Fellows, for appellee.
   Montgomery, J.

This action was brought for a breach o£ warranty on the sale of book accounts. The declaration alleges that the plaintiff bargained with the defendants to buy of them, the said defendants, certain accounts against numerous and divers parties, and that the said defendants then and there knowingly, falsely, and fraudulently represented and warranted that the total sum of said accounts amounted to the ’ sum of $4,139.37. The declaration avers that these representations were false as to the amount of the accounts. The second count is not different in substance.

On the trial, plaintiff gave testimony showing that he was approached by one Frank Masters, who suggested that he buy the Manheimer accounts. He testified that he understood that the Manheimers still owned the accounts. As a matter of fact, when the sale was concluded, both the Manheimers were present, and two assignments were drawn, one from Manheimer Bros, to Masters, who, it seems, had previously purchased the accounts of Manheimer Bros., and the following assignment to the plaintiff:

“Hillsdale, Michigan, March 22d, 1906.
“In consideration of $2,000,- I hereby sell, assign, transfer, and set over to Merton Fitzpatrick all accounts this day sold to me by Manheimer Bros., hereby giving to said Fitzpatrick the power to collect said accounts the same as I could do.
“Frank L. Masters.”

The plaintiff testified that he supposed he was buying the accounts of Manheimer Bros., and that Masters was helping him. He further testified, on cross-examination:

‘ ‘ I didn’t know until the accounts were figured up, and I didn’t know then what I was going to do, whether Mr. Masters was going to sign a note with me, running to Manheimer Bros., or how it would be fixed. I didn’t know anything about how it would be; but, when it come to that, Masters said to me, ‘Draw an assignment of these accounts to me,’ and I did, and I sat right there and did it, and I also drew one from Mr. Masters to myself. And I gave Mr. Masters my note for $2,000, and he took care of the Manheimers.
“ Q. And still you say now that you don’t know who you bought them of, whether you bought them from Masters or Manheimers ?
“A. Well, technically speaking, I don’t. I gave my note to Masters.”

The plaintiff recovered judgment, and the defendants bring error.

The assignments of error are very general, but it is conceded by plaintiff’s counsel that assignment of error No. 6 is sufficient to raise the question of whether this action could be maintained against the defendants, even though the sale was a sale from Masters to the plaintiff. The charge of the court excepted to was as follows:

‘ ‘ If these defendants did sell these accounts to Mr. Masters, but, for the purpose of aiding him to sell them, they made representations to this plaintiff regarding the accounts as to their accuracy, or what they were, then I think they would be liable the same as if they had sold them direct to Mr. Fitzpatrick, if you find that' these representations are not true, I mean.”

It is urged by plaintiff’s counsel that the case of an undisclosed principal appears, and that the party to a contract may sue the one contracting as principal, although, in fact, he may be an agent merely. This is undoubtedly •true, and it also may be true that, as contended, for a tortious wrong the agent himself may be liable with the principal. But the infirmity in this instruction is that it did not leave to the jury the question of whether the plaintiff knew of the sale to Masters and was dealing with Masters. There was enough upon the face of the papers themselves — that is, the transfers — to raise a question of fact at least as to whether the plaintiff did not deal with Masters as principal, and not with the Manheimers. The declaration was framed upon a warranty. The warranty was alleged to have been given by the defendants upon a sale by them to the plaintiff. There was nothing to apprise the defendants of any claim that the defendants were guilty of a tortious wrong not resting upon contract such as was averred in the declaration, and the averment as to the contract under which the plaintiff purchased was a matter of essential description, and could not be ignored in the proofs. We are constrained to hold that this assignment of error is well taken.

We do not pass upon the other questions presented, nor do we pass upon the motion to amend the assignments of error, for the reason that a new trial must result from this holding, and the case, if presented for a new trial, may not make a consideration of the other questions necessary. Upon the record as presented, the assignments are too general to be considered without amendment.

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

Blair, C. J., and Grant, Moore, and McAlvay, JJ., concurred.


text:
    SCAHILL v. ÆTNA INDEMNITY CO.

      X. Intoxicating Liquors — Several Liability oe Surety.

      2 Comp. Laws, § 5398, creates a joint and several • liability against the bondsmen of liquor dealers enforceable in an action against the surety alone.

      2. Same — Proximate Result — Principal and Surety.
    The mother of a minor, whose arrest and conviction for larceny resulted from the sale of liquors and the formation of bad habits during the period covered by the surety’s bond,in the saloon of defendant’s principal, may recover from the surety damages sustained, although the injury occurred after the termination of the suretyship.
    3. Same — Exemplary Damages.
    Knowledge of the fact that the purchaser of liquor is a minor is not required to be shown under the statute in order to recover exemplary damages.

      Error to St. Clair; Law, J.
    Submitted January 21, 1909.
    (Docket No. 30.)
    Decided July 6, 1909.
    Case by Mary Scahill against the iEtna Indemnity Company under the civil-damage act. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      John B. Mcllwain (Frank T. Wolcott, of counsel), for appellant.

      Frank B. Schell, for appellee.
   Montgomery, J.

This is an action brought under the civil-damage act to recover damages for the sale of liquor to the plaintiff’s minor son. The defendant was surety upon the bond of Troy & Tokarski, which bond became effective May 1, 1906. The firm continued in business until the 24th of June, 1906, when Tokarski ceased to be connected with the business, and it was continued by John Troy alone.

Three contentions are made: First, that the court erred in holding' that this action could be maintained against the surety company alone; second, that the court erred in allowing the jury to find damages against the defendant resulting from the minor’s drinking, larceny, and arrest after defendant’s liability on the bond had terminated by the dissolution of the partnership; third, that the court erred in allowing the jury to find exemplary damages.

The statute (2 Comp. Laws, § 5398) reads in part as follows:

“ And the principal and sureties to the bond hereinbefore mentioned shall be liable severally and jointly with the person or persons so selling, giving, or furnishing any spirituous, intoxicating, or malt liquors, as aforesaid, and in an action provided for in this section, the plaintiff shall have a right to recover actual and exemplary damages.”

If the surety is, as the statute provides, severally liable, it is difficult to conceive why an action may not be brought against him alone. Language could not well be plainer than that employed in the statute itself, and we need not enlarge upon it.

As to the second contention of the defendant, the evidence disclosed that for the period when Troy & Tokarski were still running the business, from May 1st to June 24th, the plaintiff’s son, who was a minor about 18 years of age, was almost daily in their place of business drinking intoxicating liquors, and, as he himself testified, was intoxicated in that place about an average of twice a week, and that after he was intoxicated they would continue to furnish him liquor. This continued all summer, and there was evidence tending to show that on the 6th of November, while the son was intoxicated, he committed a larceny in this same saloon, and was arrested therefor and convicted.

The circuit judge charged the jury that, as the evidence showed that the partnership of Troy & Tokarski was dissolved on the 24th of June, the defendant company would not be liable for illegal sales of liquor to plaintiff’s minor son after June 24, 1906, but that the defendant would be liable for the result of sales between May 1, 1906, and June 24, 1906, if any damage resulted from such sales; and it was competent for the plaintiff to show that her son drank intoxicants after June 24, 1906, but that she could not charge the surety company with responsibility therefor unless the jury should find that he subsequently drank liquor as the result of his habits formed previous to June 24, 1906. The court added:

“ In other words, the defendant, .¿Etna Indemnity Company, is not at all responsible for sales to plaintiff’s minor ' son, unless such sales were made by Troy & Tokarski between May 1 and June 24, 1906, and for the bad habits and character of the minor son that can be directly traced to such sales, if any bad habits and character can so be traced by you.”

In .reference to the arrest of the minor son, the court said:

“Now, before you can consider this matter at all as bearing upon plaintiff’s damages, you must first find that the liquor sold or furnished to the minor son by Troy & Tokarski, or either of them, or their bartenders, between May 1 and June 24, 1906, has some part in causing the said minor to commit the crime, through causing him to form bad habits and a bad character.”

We think these instructions fully guarded the rights of the defendant. It was the theory of the plaintiff that during this period of time, namely from May 1st to June 24th, the acts of the firm of Troy & Tokarski had contributed at least to form the habits which resulted in all the damages that followed. Had the subsequent sales been by an entirely distinct party, as in legal effect they were, the contribution to the downfall of the young man by the firm of Troy & Tokarski would have rendered the indemnity company liable. See Merrinane v. Miller, ante, 279, 285 (118 N. W. 11, 122 N. W, 82), and cases cited.

As to the question of exemplary damages: The court charged the jury, carefully defining the term “exemplary damages,” and the only contention made against his instruction is that exemplary damages should not be awarded at all, for the reason that there was a want of evidence that Troy & Tokarski knew that the plaintiff’s son was a minor. The young man was a witness upon the stand. He was in fact about 18 years of age at the time this liquor was served him, and it is hardly conceivable that there would not have been something in his appearance to have indicated his minority. But, independent of this, the statute relating to minors fixes no such condition. Again referring to section 5898, we find it provided:

“ Every person who shall by himself, or by any clerk, servant, agent, or employé, sell, give or furnish * * * any intoxicating, spirituous, malt, brewed or fermented liquors * * * to any minor * * * shall in addition to all other penalties provided therefor by this act, be liable for both actual and exemplary damages therefor, to the father, mother, guardian or master, or any person standing in place of a parent to such minor, in such sum, not less than fifty dollars in each case, as the court or jury shall determine.”

This statute was construed and its validity affirmed in Cramer v. Danielson, 99 Mich. 531 (58 N. W. 476). See, also, Sterling v. Callahan, 94 Mich. 536 (54 N. W. 495).

No error appears in the record. Judgment will be affirmed.

Blair, C. J., and Grant, Moore, and McAlvay, JJ., concurred.


author: Ostrander, J. Moore, J.

text:
    BIXLER v. FRY.
    1. Equity — Bulk Sales Law — Parties.
    To a bill in equity for an accounting, and other relief based on * the provisions of Act No. 223, Pub. Acts 1905, avoiding the sale of stocks of merchandise in bulk not in the ordinary course of trade, the debtor is a necessary party. Moore and Brooke, JJ., dissenting.
    2. Same — Judgment Creditors.
    It is held by an equally divided court, in agreement with the opinion of the circuit judge, that a creditor must, before resorting to equity in order to obtain relief under the “Bulk Sales Law,” secure a judgment in an action at law against the debtor. Montgomery, Moore, MoAlvay, and Brooke, JJ., dissenting.
    3. Same — Adequate Remedy at Law.

      Qucere — Whether the creditor has an adequate remedy at law. Ostrander, J., and Blair, O. J., and Grant and Hooker, JJ., concur in holding the legal remedy by garnishment adequate; Moore, Montgomery, MoAlvay, and Brooke, JJ., dissenting.
    Appeal from Leelanaw; Mayne, J.
    Submitted February 11, 1909.
    (Docket No. 161.)
    Decided July 6, 1909.
    Bill by Miles F. Bixler against John Fry for the appointment of a receiver, an accounting, and a sale of property conveyed to defendant in violation of Act No. 223, Pub. Acts 1905. From an order overruling a demurrer to the bill, defendant appeals.
    Reversed.

      Amil F. Nerlinger, for complainant.

      John J. Tweddle, for defendant.

      As to statutory regulation of. the sale of stock of goods in bulk. see note to Everett Produce Co. v. Smith (Wash.), 2 L. R. A. (N. S.) 331.

   Ostrander, J.

Complainant charges in his bill of complaint that he is a creditor of R. S. Drew, and that there are other creditors of said Drew whose names and the amount of whose demands he is unable to state; that said Drew sold his stock of merchandise to the defendant, who claims to have paid the purchase price, without complying with the provisions of Act No. 223 of the Public Acts of 1905; that the sale was void as to creditors of Drew, who has no other property or effects or means out of which creditors can secure their demands. In behalf of himself and of all other creditors of said Drew, he prays that a receiver of said goods may be appointed, an accounting had, the property disposed of, and the proceeds distributed to creditors. It is not charged that the complainant is a judgment creditor of Drew. It is not charged that defendant, Fry, is pecuniarily irresponsible.

To this bill defendant, Fry, interposed a demurrer, the third ground of which is the nonjoinder of Drew as a party defendant, the fourth ground, that complainant has not recovered a judgment at law against Drew, and the fifth ground, that the complainant has an adequate remedy at law. It was held in Musselman Grocer Co. v. Kidd, Dater & Price Co., 151 Mich. 478 (115 N. W. 409), that a purchaser may be garnished by the creditor; expressly overruling the contention that a receiver must be appointed to hold the property sold for the benefit of all creditors of the seller. This ruling necessarily disposed of the contentions that the statute itself provided for or indicated a proceeding in rein or for the exclusive jurisdiction of a court of equity. This construction of the statute also excludes the idea that in the statute itself is found provision for the co-ordinate jurisdiction of courts of equity and of law. The most that can be said is that the statute does not necessarily exclude equitable interference, if such interference is warranted under general rules.

It is one of the elementary rules of equity pleading that necessary parties shall be brought upon the record. The debtor, the person against whom the demand of the complainant is asserted, the party to the contract which is the foundation of complainant’s right to proceed at all, the person charged with making a void sale of his property, is a necessary party defendant.

But, further than this, we are referred to no rule which permits the maintenance of the bill, even with proper parties, by one who is not a judgment creditor. The right to attack a void sale or transfer of property is no other or different than the right to attack a sale or transfer voidable merely. A court of equity is open to a judgment creditor to attack and set aside transfers of property made by his debtor. If it appears that complainant has an adequate remedy at law, jurisdiction will ordinarily be denied. That complainant here has a remedy at law must be admitted. It is not made to appear that the remedy is inadequate. The learned trial court was of opinion that to delay the appointment of a receiver until creditors had recovered judgments might render the statute of no benefit to creditors,- and, without passing upon the contention that Drew is a necessary party defendant, acted upon what was deemed the necessity of the case in overruling the demurrer.

We are of the opinion that the bill makes no case for the appointment of a receiver and that the demurrer thereto should be, for the reasons given, sustained. Order overruling the demurrer is reversed, with costs of both courts. The record will be remanded for further proceedings as complainant may be advised.

Blair, C. J., and Grant and Hooker, JJ., concurred with Ostrander, J.

Montgomery, J. I concur on the ground of want of parties.

McAlvay, J., concurred with Montgomery, J.

Moore, J.

(dissenting). The material portions of the bill of complaint filed in this case are in substance as follows:

“Your orator, Miles F. Bixler, files this bill of complaint in behalf of himself and all other creditors of one R. S. Drew, whose Christian name is unknown; that R. S. Drew became indebted to your orator in the sum of one hundred twenty-eight dollars, no part of which has ever been paid; that the said R. S. Drew also became indebted to other creditors, the amounts and names of which your orator is unable to give; that on or about the 14th day of. January, 1907, the said R. S. Drew sold to one John Fry all his interest: and the entire stock of goods, furniture, and fixtures in possession of R; S. Drew; that said stock was worth about five hundred dollars, and about one hundred twenty-eight dollars thereof was merchandise sold him by your orator; that the sale of said stock of merchandise and the said fixtures pertaining to the said business of R. S. Drew was in bulk, and the whole thereof transferred to the said John Fry at once, and was not sold in the ordinary course of trade; that the said R. S. Drew or John Fry or either of them had not made an inventory of said stock and fixtures, and the said John Fry did not demand and receive from the said R. S. Drew any written list and names and addresses of the creditors of the said R. S. Drew with the amount of indebtedness due or owing to each creditor and certified by the said R. S. Drew, under oath to be a full, accurate, and complete list-of his creditors and of his indebtedness, and that the said John Fry had not at any time before taking possession of said stock of merchandise, furniture and fixtures, notified personally, or by registered mail or in any manner whatever, the creditors of said R. S. Drew, or any of them, of the proposed sale, of the prices, terms, and conditions thereof as required by Act No. 223 of the Public Acts of the State of Michigan of 1905, although said act was then in full force and effect; that said sale is void by the terms of said act; that, at the time of said sale as your orator is informed and believes, the said R. S. Drew, had no property or means wherewith' to pay his creditors the amounts due them, or out of which their several claims or any of them could be collected, except said stock of goods and fixtures which was sold as aforesaid.
“Your orator, therefore, in behalf of himself and all other creditors of said R. S. Drew, asks the aid of this court in the premises, he being remediless in the courts of the common law; that said John Fry be decreed to hold all of said stock, furniture, and fixtures as receiver and in trust for the creditors, etc., * * *; that your orator and any other creditors of said R. S. Drew may have such other or further relief in the premises as shall be agreeable-to equity and good conscience.”

The defendant demurred to the bill for the following reasons:

“(1) Because the matters stated and charged in complainant’s bill of complaint do not entitle complainant to the equitable relief therein prayed for. * * *
“(3) Because of the nonjoinder of R. S. Drew, as a defendant in said cause.
“(4) Because the complainant never has recovered a, judgment against said R. S. Drew or had his claim otherwise adjudicated.
“(5) Because said complainant, under the claimed facts, has a full and adequate remedy at law against said R. S. Drew, and is not entitled to commence or maintain a suit in equity. * * *
“(7) Because under the laws and practice in the State of Michigan, where the distinction between the law and equity cases are treated separately and distinctly, a court of chancery has no power to adjudicate and determine the validity and legality of the claim arising upon contract.”

The demurrer was overruled, and the case is brought here for review. Counsel argue at length each of the reasons assigned in the demurrer. The complainant insists that he is' entitled to maintain his bill under the provisions ofthe “sales in bulk act,” so called, being ActNo. 223, Pub. Acts 1905. Some provisions of this act were construed in Spurr v. Travis, 145 Mich. 721 (108 N. W. 1090, 116 Am. St. Rep. 330); Musselman Grocer Co. v. Kidd, Dater & Price Co., 151 Mich. 478 (115 N. W. 409).

The questions raised by this record have not been passed upon by this court and, so far as we are advised, by any court. The effect of the demurrer to the bill is to admit the truth of its averments. These, in substance, aver a sale to a debtor who is now insolvent, and who has sold all his property to the defendant under circumstances which make the sale void. The case is unlike the two cases already cited, which were proceedings in behalf of a single creditor. The bill is filed, not only in behalf of the complainant, but in behalf of all the other creditors. It calls for an accounting and for a receivership. It is not necessary to quote the provisions of Act No. 223, Pub. Acts 1905, as they are so easily accessible, but we think a reading of. them establishes the authority of a court of equity to interfere in such a case as is stated in the bill of complaint.

The decree of the court below should be affirmed.

Brooke, J., concurred with Moore, J.


author: Brooke, J.

text:
    TREAT v. DETROIT UNITED RAILWAY.
    Ejectment — Real Property — Conditions Subsequent — Notice of Forfeiture.
    Real property conveyed subject to a condition subsequent, whereby title shall revest upon failure to perform the condition, may not be regained by ejectment proceedings without a notice of the particular cause of forfeiture, and of the intention to claim the right, and a reasonable length of time in which to comply.
    Error to Oakland; Smith, J.
    Submitted February 15, 1909.
    (Docket No. 117.)
    Decided July 6, 1909.
    Ejectment by Joseph A. Treat against the Detroit United Railway. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Brennan, Donnelly & Van De Mark and James H. Lynch, for appellant.

      Aaron Perry, for appellee.
   Brooke, J.

Plaintiff, on May 24, 1900, and for some years prior thereto, was the owner of certain lands situated on section 35 of the township of Oxford. On that day he entered into the following agreement with the Detroit, Rochester, Romeo & Lake Orion Railway:

“This contract, made this twenty-fourth day of May, in the year of our Lord one thousand nine hundred, between Joseph A. Treat, of Stuart, State of Iowa, party of the first part, and the Detroit, Rochester, Remeo & Lake Orion Railway, a corporation, existing under the laws of the State of Michigan, party of the second part, witnesseth, that said party of the first part, in consideration of the sum of one dollar to him duly paid, hereby agrees to sell unto the said party of the second part, all that certain piece or parcel of land lying and being situate in the • township of Oxford, county of Oakland, and State <?£ Michigan, and more particularly known and described as follows:
‘ ‘ Part of the southeast quarter of the southwest quarter of section thirty-five (35), commencing at a point on the south boundary line of said township sixteen and one-half feet west from where the fence on the west side of Lapeer road now is, and running thence northerly to a point two feet east from the southeast black walnut tree now standing on said forty; thence northerly keeping two feet east along the black walnut row of trees now standing nearest said road to the north line of said forty; thence east along said north line to the road fence aforesaid ; thence southerly along said road fence to the said south township line; thence westerly along said line to the place of be°ginning, reserving to said first party the crossings hereinafter mentioned, for the sum of one dollar, which the said party of the second part hereby agrees to pay the party of the first part, as follows, at this date. Said second party shall build and maintain a good and sufficient woven wire fence fifty-four inches high, with cedar posts set not to exceed one rod apart, along the above-described west line, with three suitable gates and gateways therein, one large one in front of the south tenant house where the road or lane now is, one small gate in front of the north tenant house, and one field gate further south, and for entrance to the field. It shall also make and maintain suitable crossings from said highway across said second party’s tracks, of plank or coarse gravel to and through said gateways to be filled in if necessary so as to make a good drive and passage way and of easy grade with a load; they, second party, shall construct sewers or bridges so as not to impede the flow of water * wherever any and all ditches or watercourses now are or which may be crossed by second party’s roadbed.
“ Said party of the second part hereby agrees to do and perform the same. And to build and operate a line of railway across said lands propelled by electricity or other motive power than steam. ■
“And the said party of the first part, on receiving such payment, and the fulfilling of all other conditions mentioned at the time and in the manner mentioned, shall at his own proper cost and expense, execute and deliver to the said party of the second part, or to its assigns, a good and sufficient conveyance in fee simple, of said lands, free and clear of and from all liens and encumbrances, except such as may have accrued thereon subsequent to the date hereof by or through the acts or negligence of said party of the second part, or its assigns, said railway to be built and in operation within six months from the date hereof.
“It is mutually agreed between said parties that the said party of the second part shall have possession of said premises on the delivery of- these presents and shall keep the same until the said terms shall be paid and fulfilled as aforesaid; and if said party of the second part shall fail to perform this contract, or any part of the same, said party of the first part shall, immediately after such failure, have a right to declare the same void and retain whatever may have been paid on such contract, and may consider and treat the party of the second part as his tenant holding over without permission, and may take immediate possession of the premises, and remove the party of the second part therefrom and said lands shall revert to said first party.
“ And it is agreed that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators and assigns of the respective parties hereto.”

The real estate mentioned in the foregoing contract lies on the westerly side of the highway. The grantee entered into possession of the land described, constructed its railway, and began operation within the time mentioned in the contract. It also constructed a fence along the westerly side of the lands occupied by it; crossings leading to the north and south tenant houses and a ditch.

In August, 1901, plaintiff caused to be served upon the grantee a notice as follows:

“ To the Detroit United Railway:
“Take notice. You are hereby notified that the contract dated May 24, A. D. 1900, for a right of way, made between the Detroit, Rochester, Romeo & Lake Orion Railway and myself, for the following described lands, viz.: Part of the southeast quarter of the southwest quarter of section thirty-five, township of Oxford, Oakland county, and State of Michigan, commencing at a point on the south boundary line of said township sixteen and one-half feet west from where the fence on the west side of the Lapeer road now is, and running thence northerly to a point two feet east from the southeast black walnut tree now standing on said forty; thence northerly keeping two feet east along the black walnut row of trees standing nearest said road to the north line of said forty; thence along said north line of said forty to the road fence aforesaid; thence southerly along said road fence to said south township line; thence west along said line to the place of beginning, has not been performed or fulfilled by and on the part of said Detroit, Rochester, Romeo & Lake Orion Railway. Therefore, I hereby declare said contract void. And I hereby demand possession of the lands above described, and that you yield and surrender up quiet and peaceable possession of said lands pursuant to the provisions of the statutes in such case made and provided.
“.Dated this fifth day of August, A. D. 1901, at Orion, Michigan.
[Signed] “Jos. A. Treat.”

In August, 1906, a second notice was served upon the defendant herein, which had in the meantime become the owner of the property of the Detroit, Rochester, Romeo & Lake Orion Railway. The second notice was as follows:

“Whereas, on or about the 24th day of May, 1900, a certain land contract, of which the annexed is substantially a true copy, was executed and delivered by the undersigned, Joseph A. Treat, by Wm. E. Littell, his agent in fact, and by Detroit, Rochester,* Romeo & Lake Orion Railway, a corporation, by Harry M. Lau, its attorney, and the said corporation has refused and neglected to perform each and every one of the terms, conditions, acts, obligations, and things required to be done or performed by it, under and by the terms of said contract, of all of which the undersigned has heretofore given you and said last above named corporation notice, and the said corporation having failed, as aforesaid, to perform said contract and every part thereof, therefore:
“ The undersigned, Joseph A. Treat, who has heretofore declared the said contract to be void, does hereby again declare the same to be void and he has therefore and does now hereby give you and said corporation notice of all said facts and of his determination and election to declare said contract void.
“ And you are hereby also notified and required immediately to quit and surrender up to the undersigned, all the lands and premises described in the said contract; and you have also wrongfully taken possession of certain lands belonging to the undersigned and lying westerly of and adjoining said above mentioned and described lands; you are hereby further notified and required to immediately quit and surrender up to the undersigned all the following lands and premises, to wit:
“ Part of the southeast quarter of the southwest quarter of section thirty-five and bounded as follows: On the south by the south line of said section; on the north by the north line of the said southeast quarter of the said southwest quarter of section thirty-five; on the west by the wire fence running northerly and southerly and being the first fence westerly from the track of the electric railway now passing through said section; and on the easterly side of the westerly line of the Lapeer road, so called, where it passes across said section as it existed on the said 24th day of May, 1900, being the line of the fence along the westerly line of said highway, as the same existed on the said last-named date; said parcel of land being in the township of Oxford, Oakland county, Michigan.
“Dated this 6th day of August, 1906.
[Signed] “Joseph A. Treat.”

Plaintiff brought suit in ejectment for the entire strip of ground described in the contract, claiming the right to forfeit the same because:

(1) The defendant was in possession of more land than was described in the contract (which is not denied).
(2) That the defendant had failed to properly perform its covenants in respect to the construction of the crossings and drains.
(3) That in setting the fence provided for in the contract too far west, the defendant had mutilated the tops of certain walnut trees and excavated about the roots of the same in such a manner as in itself to constitute a material and injurious violation of the contract, warranting its forfeiture.

Between August, 1901, and August, 1906, no negotiations were had between the parties, nor did the plaintiff at any time before suit notify the defendant, or its predecessor, in what particular it had failed to perform the contract. It will be noticed that the contract is silent as to the time within which the fence, the drain, and the crossovers are to be constructed. Nevertheless the defendant or its predecessor in title proceeded seasonably to comply with the contract provisions, presumably in good faith. We are of opinion that, before a forfeiture could be declared by plaintiff, he was bound to give notice of his intention to claim a forfeiture, coupled with a notice to defendant of the particular default of defendant relied upon by him. After such notice the defendant should have reasonable time in which to comply, and thus avoid forfeiture. See Warvelle on Vendors (2d Ed.), §§ 138, 256, 815, and cases there cited; Getty v. Peters, 82 Mich. 661 (46 N. W. 1036, 10 L. R. A. 465).

It follows, therefore, that in the action at bar the plaintiff should have been limited in his recovery to so much of the land occupied by the defendant as is in excess of the description contained in the contract. The fact that plaintiff from 1901 to 1906 gave no notice to defendant of his dissatisfaction with the method of performance used by defendant, and pointed out no particular in which it was improper, is significant. If after due notice and a reasonable time for compliance defendant neglects or refuses to remedy the alleged defects, the plaintiff will be in position to maintain his action.

Judgment reversed, and a new trial ordered.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.