author: Hooker, J.

text:
    DETROIT MINERAL BATH CO. v. STROH BREWERY CO.
    1. Injunction — Propriety—Restraining Obstruction op Alley —Summary Abatement.
    A bill will lie to restrain the wrongful obstruction of a public alley notwithstanding the impropriety of complainant’s summary abatement of the obstruction.
    2. Same — Title to Land — Right to Trial at Law.
    Where defendant threatens to obstruct a public alley, complainant has a right to have the obstruction restrained notwithstanding the claim that the title to the land may be said to be in dispute and that defendant is entitled to a trial of that question in an action at law, and the bill will lie even if defendant is in possession of the premises.
    Appeal from Wayne; Donovan, J.
    Submitted January 20,1908.
    (Docket No. 91.)
    Decided March 17, 1908.
    Bill by the Detroit Mineral Bath Company against the Stroh Brewery Company to enjoin the closing of an alley. From a decree for complainant, defendant appeals.
    Affirmed.

      F. J. Cochran (T. T. Leete, Jr., of counsel), for complainant.

      William E. Henze, for defendant.
   Hooker, J.

Complainant and defendant own adjoining city lots. The former claims rights of passage over the rear ten feet in width upon two grounds:

1. That it was a public way by dedication and user.

2. That complainant had a private right of way over it, by deed and by user.

The defendant denies both of these claims, and also asserts that the bill should be dismissed for the reason that complainant forcibly interfered with defendant’s exclusive possession for the purpose of obtaining an injunction to protect complainant in the advantages obtained thereby, citing De Sale v. Millard, 108 Mich. 581.

The annexed plat illustrates the premises. On July 2b,

1854, one De Witt C. Holbrook owned the entire block, including eight lots, and on that day executed a deed of lots 2 to 8 to one Perrin, which contained the following:

“This deed is made subject to the opening at any and all times and to free use of an alley 20 feet wide by taking 10 feet in width of the rear end of each of said lots for that purpose.”

Lot 2 came to the complainant by deed dated April 11, 1906, containing the following:

“Excepting such part of said lot so described as has been taken for the alley, now opened and used, in the rear thereof.”

It commenced the erection of buildings thereon in June, 1906. Defendant purchased lot 1 about six years before. We do not find its deed in the record, and have no means of knowing whether it contained any reference to an alley.

Shortly before complainant commenced its building, and in May, 1906, according to defendant’s testimony, it built a fence closing up the passageway in the rear of its building on lot 1, first asking complainant’s representative whether it wanted to buy the property. The fence stood there until January, 1907, when it was taken down by complainant’s agent upon a Saturday, and the temporary injunction was served the following Monday, on the filing of the bill in this case. It was understood between complainant and its counsel that the suit should be commenced as soon as the fence should be removed. At the time the fence was removed defendant was in possession of the ground within the fence and was using it as a chicken yard.

An examination of the testimony has convinced us that the defendants had obstructed a public alley which the complainant at the time of the removal of the fence found it necessary to use in drawing coal. This is not an action of trespass, in which we are called upon to try the question of its right to remove the fence or the propriety or the impropriety of the method of removal. The bill is filed to restrain defendant from maintaining a nuisance, thereby preventing complainant from using a way, by obstructing it, and we cannot think that the law would justify us in penalizing him, by the denial of a clear right, for what we might consider an improper (if it was an improper) summary abatement of the nuisance. See Leete v. Rooney, 127 Mich. 92; 9 Wood on Nuisances (3d Ed.), pp. 942, 956, 959; Lawton v. Steele, 119 N. Y. 226 (7 L. R. A. 134); Joyce on Nuisances, chap. 17. It is enough that we are able to say that the defendant wrongfully threatens to obstruct the way, and that complainant has a right to have it restrained notwithstanding the claim that the title to the land may be said to be in dispute, and that defendant is entitled to a trial of that question in an action at law. This bill would lie, even if the defendants were in possession of the premises. City of Mt. Clemens v. Sanitarium Co., 127 Mich. 118; Lathrop v. Elsner, 93 Mich. 599; Wilmarth v. Woodcock, 58 Mich. 482, 66 Mich. 331; Campbell v. Kent Circuit Judge, 111 Mich. 575; F. H. Wolf Brick Co. v. Lonyo, 132 Mich. 162; Rhoades v. McNamara, 135 Mich. 644.

The decree is affirmed, with costs.

Grant, C. J., and Montgomeby, Ostbandeb, and Cabpenteb, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    COREY v. JOLIET BRIDGE & IRON CO.
    Master and Servant — Injuries to Servant — Fellow-Servants.
    A man experienced in the erection of iron bridges, who goes from place to place at the direction of the agent of the manufacturer of bridges, and erects bridges with the assistance of laborers employed in the vicinity, who are paid with money furnished by the agent, is the fellow-servant of such laborers, and the manufacturer is not liable for injuries occurring to one of them as a result of the negligence of the man in charge.
    Error to Ionia; Davis, J.
    Submitted January 21, 1908.
    (Docket No. 101.)
    Decided March 17, 1908.
    Case by Arthur L. Corey, administrator of the estate of Hiram Bradish, deceased, against the Joliet Bridge & iron Company for the negligent killing of plaintiff’s intestate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Morse & Locke (Scully & Davis and D. C. Sheldon, of counsel), for appellant.

      James H. Davitt {B. A. & W. E. Hawley, of counsel), for appellee.
   Hooker, J.

The defendant is a nonresident corporation, engaged in the construction and erection of iron bridges. R. A. Raymond, of Saginaw, is its agent for the State, and he made a contract with North Plains township, in Ionia county, for the construction and erection of a bridge. He employed Manning to erect the bridge for the defendant. Manning was an experienced man, in the habit of doing such work for defendant. It was usual to furnish him with the plans and specifications for the work, and he would proceed to erect the bridge, which was shipped in a knockdown condition. Raymond would either send him alone, or with a man to help him. If alone, he would hire the necessary help, sending to Raymond for the money to pay for it, and the account would be settled between them later. In this instance deceased was employed by Manning. Manning would take the necessary tools and appliances to erect the bridge. The abutments for this bridge were built by the township and were in readiness for the bridge.

The plaintiff’s intestate was employed as a helper. He was an experienced man, in general work, with and about machinery. He died from injuries received from the fall of a derrick at a time when it was being moved, all guy ropes but one having been loosened for the purpose. Manning was directing the work. The learned circuit judge directed a verdict for the defendant upon the ground that the testimony conclusively showed:

1. That suitable appliances were furnished.

2. That the accident was caused through the lack of care on the part of the man or men in charge of the guy ropes, which had been loosened necessarily.

3. That these men were fellow-servants, as also was Manning.

4. That the risk was obvious, and plaintiff’s intestate assumed it.

The plaintiff has appealed.

Counsel for plaintiff assert in their brief that the only question in the case is: “Whether Manning was a fellow-servant of deceased. ” The undisputed testimony shows that Manning was an employé sent from place to place to erect bridges. He was under control of Raymond, the agent for the State, through whom Manning was directed and controlled. He was present directing, aiding, and assisting in the assembling and erection of the bridge. His help consisted in this instance of one or more men employed by him in the locality, by direction of Baymond. His relation to employer and men was much like'that of a section foreman, or of men sent out to erect windmills, tanks, and numerous other things, which needs the presence of men of some experience in conjunction with common labor, and the case is governed by the rule laid down in the following cases: Beesley v. F. W. Wheeler & Co., 103 Mich. 196 (27 L. R. A. 266); Schroeder v. Railroad Co., 103 Mich. 213 (29 L. R. A. 321); Andre v. Elevator Co., 117 Mich. 560; Wellihan v. Wheel Co., 128 Mich. 1; Lepan v. Hall, 128 Mich. 523; Mikolojczak v. Chemical Co., 129 Mich. 80; Gavigan v. Railroad Co., 110 Mich. 71; Morch v. Railway Co., 113 Mich. 154; Randa v. Screw Works, 134 Mich. 344; Page v. Food Co., 142 Mich. 17; Livingstone v. Glass Co., 146 Mich. 236; Guest v. Illuminating Co., 150 Mich. 438; Amoe v. Engineering Works, ante, 212.

We are of the opinion that Manning was a fellow-servant of deceased.

The judgment is affirmed.

Grant, C. J., and Montgomery, Ostrander, and Carpenter, JJ., concurred.


text:
    CLARK-JEWELL-WELLS COMPANY v. TOLSMA.
    1. Partnership — Insolvency — Creditors — Rights — Creditors oe Individual Copartners.
    Creditors of an insolvent copartnership are entitled to the application of the firm’s assets upon their claims to the exclusion of creditors of the individual partners, and a transfer of partnership assets to the creditors of the individual partners constitutes a fraud upon the creditors of the firm.
    2. Same — Firm or Individual Debts — Evidence.
    On a bill to reach assets of a partnership claimed to have been transferred to personal creditors of the partners in fraud of the rights of the creditors of the firm, evidence examined, and held, that money borrowed by the partners from the wife of one and the mother of the other with which to purchase the stock and good will constituting the assets of the firm, was borrowed by the partners in their individual capacity and was not a debt of the firm.
    Appeal from Kent; Perkins, J.
    Submitted January 21, 1908.
    (Docket No. 107.)
    Decided March 17, 1908.
    Judgment creditor’s bill by the Clark-Jewell-Wells Company against William Tolsma and others. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Smedley & Corwin, for complainant.

      Lombard & Hext, for defendants.
   Hooker, J.

The complainant, a judgment creditor of William Tolsma and John Knottnerus, filed the bill in this cause to reach an interest in a land contract which it claims that they received from the vendor in the land contract for their stock and good will, together with some cash. By way of defense they claim that the interest in the land contract (which was conveyed through a deed of the land), went to Tolsma’s wife and the mother of Knottnerus, in payment of certain debts, viz., $500 to Mrs. Knottnerus and $632 to Mrs. Tolsma, incurred by the copartnership at the time they became copartners, for the purpose of buying the stock.

It appears not to be questioned that the stock was co-partnership property, and that unless the claims of thé women were debts of the firm, and not the personal debts of copartners, this payment was a fraud on creditors of the firm, who were entitled to the application of assets upon their claims against the insolvent copartners to the exclusion of creditors of the individual copartners. If not conceded, it is clearly the law, as the following cases cited by counsel show: Hutchinson v. Dubois, 45 Mich. 143, 147; Heineman v. Hart, 55 Mich. 64, 72; Cron v. Cron’s Estate, 56 Mich. 8, 10; Jackson Bank v. Durfey, 72 Miss. 971, 978 (31 L. R. A. 470); Bergman v. Jones, 10 N. Dak. 520; Cribb v. Morse, 77 Wis. 322; Ferson v. Monroe, 1 Fost. (N. H.) 462; Nordlinger v. Anderson, 123 N. Y. 544; Clements v. Jessup, 36 N. J. Eq. 569.

The case, as we view it, turns on a question of fact, i. e., whether the claims of those women were firm debts, if we believe that they furnished the money as stated. The learned circuit judge found with the defendants upon both points. He saw the witnesses, and we should follow his conclusion were it not that the testimony in the case produces a strong conviction that these were personal and not copartnership debts. We will give some of the reasons.

The joint answer of the copartners, sworn to by both, states:

“The truth to be that at the time they engaged in business, this defendant, William Tolsma, borrowed from his wife the sum of $630.00 in cash which he invested in said business as his share of capital stock; that this defendant, John Knottnerus, borrowed from his mother the sum of $500.00 in cash which he contributed and invested in said partnership business towards his share of the capital stock; that at the time they sold out said business as aforesaid they were heavily in debt, said business having been a losing one; they took the cash that they received from said sale and paid it upon their indebtedness to creditors from whom they had purchased merchandise; that as a portion of the purchase price received from said Boonstra and Posthumus was the piece of real estate described in paragraph VII of complainant’s said bill of complaint, subject to a land contract on which there remained unpaid $900.00 or thereabouts, which these defendants accepted for its face value towards the purchase price for said business; and that the deed to the same and an assignment of said land contract was made to the said Minnie Tolsma and Jennie Knottnerus as a part payment to them of moneys which they had borrowed from them and invested in said business as aforesaid.”

The answer of Jennie Knottnerus states:

“ The truth to be that at the time they engaged in business the defendant William Tolsma borrowed from Minnie'Tolsma, his wife, the sum of $630.00 in cash which he invested in said business as his share of the capital stock; that the defendant John Knottnerus borrowed from this defendant the sum of $500.00 in cash which he contributed and invested in said business towards his share of the capital stock; that at the time they sold out said business as aforesaid they were heavily in debt, said business having been a losing one; that they took the cash that they received from said sale and paid it upon their indebtedness to creditors from whom they had purchased merchandise ; that as a portion of said purchase price received from said Boonstra and Posthumus was the piece of real estate described in paragraph VII of said complainant’s bill of complaint, subject to a land contract on which there remained unpaid $900.00 or thereabouts, which was accepted by the said defendants, William Tolsma and John Knottnerus, for its face value towards the purchase price of said busine;s; and that the said defendants, William Tolsma and John Knottnerus, had the deed thereto and an assignment of said land contract made to this defendant and Minnie Tolsma as a part payment of said loans above mentioned, and that said deed and assignment was accepted by this defendant and the said Minnie Tolsma for its face value and applied by them at the time of said conveyance upon the indebtedness due to them from the said William Tolsma and John Knottnerus.”

The answer of Minnie Tolsma states:

“ The truth to be that at the time they engaged in the business the defendant, William Tolsma, borrowed from this defendant the sum of $630.00 in cash which he invested in said business as his share of the capital stock; that the defendant, John Knottnerus, borrowed from Jennie Knottnerus, his mother, the sum of $500.00 in cash which he contributed and invested in said business towards his share of the capital stock.”

All of these were sworn answers.

John Knottnerus testified:

“ At the time it was purchased I had some money of my own, about $150. I put $132 of my own into the business. I obtained $500 from my mother and Mr. Tolsma obtained $632 from his wife, that made $1,264, which was put into the business. We paid $1,064 for the stock and that left $200 in cash for working capital. * * *

“When this money was obtained from my mother and Mrs. Tolsma there was no written agreement between me and Mr. Tolsma and the ladies concerning it. The agreement was that we were to pay back this money from the proceeds of the business, or in case we sold from the assets of the business. The debt was to be treated as a partnership debt. Interest was paid on it before we sold out. It was paid in merchandise. * * *

“The proceeds of that sale were used to pay up our creditors as far as it went. My mother, Mrs. Knottnerus, was paid one-half of contract, $321.00 and some cents and enough cash to make $400.00, and Mrs. Tolsma was paid half of the contract and enough cash to make $450.00. The rest of the cash was paid out to different creditors. It was distributed among them. Some of it was paid to the Clark-Jewell-Wells Company. I think somewhere from $125 to $150 was paid to them. I am not sure, I have forgotten that. It may not be that much. I think they received somewhere near one-half of their claim. I cannot state positively. I know they received some money on their account, two or three payments I made them. All the moneys received were distributed among the creditors. The land contract read to Posthumus and his wife of the first part and Andrew DeGroot and wife of the second part. Posthumus held a deed of the property. He had previously sold it to Andrew DeGroot and wife on contract. Posthumus assigned the contract and deeded the property to us. The deed ran to my mother and Mrs. Tolsma, jointly.”

Tolsma testified:

“ Money was borrowed to buy the business. We borrowed $500 from Mrs. Knottnerus and I think we borrowed $632 from Mrs. Tolsma.

“John Knottnerus took care of the books and had charge of the money and payments of bills. I was out on the road delivering goods and taking orders. I have not very much education.”

It is clear that these copartners had equal interests; one put in $132 from his own pocket, the other had no money. It is evident that this was equalized in the borrowing, one borrowing $500 which, with his cash, equaled the $632 borrowed by the other. The improbability that they then agreed that both loans should be chargeable to the company is obvious. Moreover, the testimony shows that each copartner drew money from the concern, and groceries were sent to both women from time to time, to pay on interest. When the copartners took groceries they were charged to them by the bookkeeper and the accounts were adjusted when they drew out money. They kept books and the groceries sent to the women were charged up. It is by no means clear that this interest was paid equally on both debts or that it was not adjusted so that each was charged with the amount paid on his loan. The books were destroyed immediately after the business was sold, without any valid reason or excuse. We are of the opinion that these considerations, and others that we do not refer to, are not only inconsistent with the claim that the firm borrowed this money, but that they fairly outweigh the testimony of the defendants’ witnesses upon the crucial point.

The decree is reversed, and a decree will be entered in this court in behalf of the complainant, as prayed in its bill, with costs of both courts.

Grant, C. J., and Montgomery, Ostrander, and Carpenter, JJ., concurred.


author: Carpenter, J.

text:
    MERCER v. CINCINNATI NORTHERN RAILROAD CO.
    1. Carriers of Passengers — Railroads —Infirm Passenger — Duty to Assist.
    Where a railroad company voluntarily accepts, without an attendant, a person as a passenger whose inability to care for himself is apparent or made known to its servants, and renders special care and assistance necessary, the company is negligent if such assistance is not afforded.
    3. Same — Alighting Without Assistance — Contributory Negligence.
    Where an infirm passenger, on arriving at her destination in the night-time, went to the car platform to alight, accompanied by her little daughter, and found no one there to assist her as she had been promised by the conductor, and her daughter who went for help failed to return, she was not guilty of contributory negligence, as a' matter of law, in attempting to alight without assistance, but the question was one for the jury under proper instructions.
    3. Damages — Pleading—Personal Injuries —Evidence Admissible.
    An averment that plaintiff “ slipped and fell and was severely sprained and wrenched in the joints and cords of her left leg and the bones thereof were injured,” is sufficient to permit the introduction of testimony in relation to an injury to the hip.
    Error to Jackson; Smith (Clement), J., presiding.
    Submitted January 22, 1908.
    (Docket No. 119.)
    Decided March 17, 1908.
    Case by Flora A. Mercer against the Cincinnati Northern Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Wilson & Cobb and A. L. Clark, for appellant.

      Thomas E. Barkworth (Richard Price, of counsel), for appellee.
   Carpenter, J.

December 24, 1902, at Jackson, in this State, plaintiff, accompanied by her ten-year old daughter, took passage on defendant’s train for Alvordton, Ohio. Shortly before that time she had suffered a slight injury to the cords of her left leg, which somewhat impeded her movements. Before boarding the train, plaintiff’s husband stated her condition to the conductor and obtained his promise to assist her in alighting at Alvordton. Plaintiff herself, subsequently, upon surrendering her ticket, told the conductor that she would need assistance in alighting, “ and asked him if he would please assist me and he told me he would; he would see I got off all right.” When the train reached Alvordton plaintiff and her daughter carried their hand parcels out on the platform which was covered with snow. They “stood there quite a few minutes.” It was dark. There was no one there to assist them to alight. Her daughter got off and went away to procure assistance. She was gone some time and the plaintiff, as she testifies, “got very nervous; I thought I must get off. * * * I waited as long as I thought I ought to.” She therefore attempted to alight without assistance, fell from the steps, and was injured. She brought this suit to recover compensation and obtained a verdict and judgment in the circuit court.

The most important question in the case is this: Was defendant under any obligation to assist plaintiff to alight ? The law upon this subject is, in our judgment, correctly stated by the supreme court of Minnesota, in Croom v. Railway Co., 52 Minn. 296 (18 L. R. A. 602), speaking through Justice Mitchell, as follows:

“A railroad company is not bound to turn its cars into nurseries or hospitals, or its employés into nurses. If a passenger, because of extreme youth or old age, or any mental or physical infirmities, is unable to take care of himself, he ought to be provided with an attendant to take care of him. But if the company voluntarily accepts a person as a passenger, without an attendant, whose inability to care for himself is apparent or made known to its servants, and renders special care and assistance neo essary, the company is negligent if such assistance is not afforded. In such case it must exercise the degree of care commensurate with the responsibility which it has thus voluntarily assumed, and that care must be such- as is reasonably necessary to insure the safety of the passenger, in view of his mental and physical condition. This is a duty required by law as well as the dictates of humanity.”

In that case plaintiff, an aged man, feeble and infirm in mind and body, undertook to travel alone from Savanna, Illinois, to Wells, Minnesota. His condition was known to defendant’s employés when he was accepted as a passenger. He was injured because he did not receive needed assistance when he was changing cars at Austin, Minnesota. In accordance with the rule of law above stated, defendant was held responsible. See, also, Southern R. Co. v. Hobbs, 118 Ga. 227 (63 L. R. A. 68); Foss v. Railroad, 66 N. H. 256 (11 L. R. A., 367); 3 Thompson on Negligence, § 2846; 2 Hutchinson on Carriers (3d Ed.), §§ 992, 1127.

It is contended that plaintiff was guilty of contributory negligence in endeavoring to alight. Many of the cases relied upon by defendant are those where a passenger attempted to alight from a moving train. This case is very different from those. The risk was obviously much less. Upon this subject we quote with approval from the brief of plaintiff’s counsel:

“ Plaintiff expecting, as she had a right to expect, that defendant’s employés would meet her and assist her in alighting, had made her way to the platform of the car. The trainmen had left. It was dark. Her little girl, stepping off to find an employé, had disappeared. If the train started, she was very likely to be thrown down and injured. If she went back to resume her seat, she would have to leave her daughter and run the chance of falling, incident to that movement. If she attempted to get down, as she did, she faced the danger incident to that. In any direction there was danger.”

Under these circumstances, plaintiff was not, as the trial court said, “negligent if she chose the alternative which proved to be the more dangerous.” Fehnrich v. Railroad Co., 87 Mich. 606. The question of contributory negligence was one for the jury to decide and the trial court submitted it to them with appropriate instructions.

Rulings upon the admission of testimony. Plaintiff testified:

“ I have a great deal of trouble with my back and hip. My back pains me a great deal and my head pains me much of the time. When I walk my hip feels as though something was twisted.”

Defendant complains because the court refused “to strike out all testimony in relation to the injury to the hip for the reason that no such injury is averred in the declaration.” The declaration does aver:

“ She slipped and fell and was severely sprained and wrenched in the joints and cords of her left leg and the bones thereof were injured.”

We think this a sufficient averment to permit the introduction of the testimony.

No other question demands discussion. The judgment is affirmed.

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


text:
    OBENAUER v. SOLOMON.
    1. Brokers — Contracts — Construction — Contract with Seller.
    A letter written by defendant to plaintiff, a broker, stating that defendant has certain timber for sale, giving the price and terms of payment and shipment, and concluding, “You may have ten days from this date in which to place the stock,” obligates defendant to compensate plaintiff for finding and reporting a purchaser on the terms stated.
    2. Evidence — Construction oe Contract — Admissibility.
    Refusal to permit a witness to testify what was meant by the words in a written contract “You may have ten days in which to place the stock,” is proper, the testimony not being evidence of usage, but a mere offer of testimony as to the proper construction of a writing.
    3. Statute oe Frauds — Sales of Goods — Contract with Broker — Necessity of Writing.
    The statute of frauds does not require that a contract with a broker to find a purchaser for goods of the value of over 550 shall be in writing.
    4. Evidence — Parol Evidence — Varying Writing — Contract with Broker.
    Where a writing executed by defendant authorizing plaintiff to find a purchaser for certain timber was silent upon the question where defendant was to be notified, parol evidence that at the time of executing the writing defendant stated that the notice should be sent to a certain place is admissible.
    5. Same — Declarations of Party — Proof of Intention — Equivocation.
    Where a written contract states that the timber, the subject of the contract, is to be “piled on the dock,” but no dock is specified, an equivocation appears, to interpret which, evidence as to what dock was orally designated by defendant is admissible.
    6. Saving Questions for Review — Objection not Made Below — Application of Statute of Frauds.
    An objection not made below that the contract sued upon was one which could not be performed within a year, that its' terms should therefore be in writing, and that parol testimony as to some of its terms was not admissible, will not be considered on appeal.
    7. Brokers — Action for Commissions — Procurement of Purchaser — Evidence—Admissibility.
    In an action by a broker for his commissions for procuring a purchaser for defendant’s timber, plaintiff may testify to a conversation with the purchaser’s agent tending to show his willingness to purchase the timber on the terms specified in plaintiff’s contract of employment.
    8. Evidence — Hearsay—Declarations.
    Where, in an action by a broker for commissions for finding a purchaser for defendant’s timber, a conversation between plaintiff and the purchaser’s agent tending to show his willingness to buy the timber on the terms specified has been shown, testimony that at a later time and place the purchaser’s agent made inconsistent statements is hearsay and inadmissible.
    9. Brokers — Commissions—Amount Recoverable.
    Where a broker was employed to sell 3,000,000 feet of timber and his principal repudiated the contract of employment and sold to the purchaser procured by the broker upon different terms, the extent of the broker’s commissions is not affected by the fact that only 2,000,000 feet of timber was delivered under the subsequent contract.
    10. Same — Rate of Commission — Evidence—Harmless Error.
    The admission of testimony as to what was a reasonable compensation for finding a purchaser for defendant’s timber is not prejudicial to defendant where the undisputed testimony shows that the law of custom fixed the compensation at the amount stated by the witness.
    11. Same — Action for Commissions — Accrual.
    Where defendant refused to deal with a purchaser for his timber procured by plaintiff and sold it through another broker, plaintiff was not obliged to wait until his compensation would have been due under the terms of the contract between himself and plaintiff, but was entitled to sue immediately upon defendant’s disabling himself from performing.
    Error to Alpena; Emerick, J.
    Submitted January 22. 1908.
    (Docket No. 71.)
    Decided March 17, 1908.

      Assumpsit by Henry G. Obenauer against Selig Solomon on a contract for the sale of certain timber.' There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Charles B. Henry, for appellant.

      Frank D. Scott (Joseph H. Cobb, of counsel), for appellee.
    Plaintiff recovered a verdict and judgment in the trial court. The material facts are as follows: September 5, 1902, defendant executed and delivered to plaintiff an exhibit, of which the following is the substance:
    “ Henry G. Obenauer, Esq.: I have for sale for the season of 1903, three million feet of Norway which I wish to cut into timber including about ten per cent, tamarack to be cut from 4 x 4 to 8 x 8, or as the buyer may wish to have it cut, with a guaranty of 50 per cent. 18 feet to 24 feet long and 50 per cent, from 10 feet to 16 feet long.
    ‘ ‘ The terms of shipment to be the removal of the lumber as fast as 500 M. ft. is cut and piled on the dock and the price is to be $13 per M. for the merchantable; $10 per M. for the mill culls. Terms, !•£• per cent, off in ten days, or 60 days net. You may have ten days from this date in which to place the.stoek. * * *
    “I should also want a settlement for every cargo by note ór check.
    (Sgd.) “Selig Solomon.”
    Within said 10 days plaintiff found a purchaser for said timber on the terms above mentioned and gave notice of this fact by sending letters and telegrams addressed to defendant at Au Sable, Michigan. On the trial plaintiff was permitted to prove that at the time the memorandum was delivered, defendant told him to send this notice to him at Au Sable, and also that the lumber would be manufactured at Au Sable and delivered there on dock in 10 feet of water. Owing to defendant’s absence he did not receive the notice sent by* plaintiff until after the lapse of said 10 days. He then refused to execute a contract with the purchaser procured by plaintiff, but subsequently, on September 30, 1902, did sell said timber to said purchaser through another broker at an advance over the price stated in said memorandum. After this sale was made, on November 3, 1902, this suit was instituted. The undisputed testimony proved that in cases like that before us, the inspector or broker who procured the sale had a right to inspect the timber and to receive for his services 25 cents per thousand, to be paid, one-half by the seller and one-half by the buyer, and therefore the trial court charged the jury that if plaintiff was entitled to recover, the measure of his damages was said 25 cents per thousand feet less the actual cost of making said inspection, and plaintiff recovered a verdict and judgment for that amount.
   Carpenter, J.

(after stating the facts). We are asked to reverse the judgment upon several grounds.

Construction of the writing. It is.defendant’s contention that the writing, properly construed, did not impose upon him any obligation; that he was at complete liberty to refuse to sell the timber to any purchaser whom plaintiff might procure within the 10 days mentioned therein. We deem it sufficient to say that in our judgment this contention cannot be maintained, for, if so, it follows, as stated by the learned trial judge, “that the paper amounted to nothing in the nature of contract rights, or contract relations between Mr. Solomon and Mr. Obenauer.” The court very properly refused to permit witnesses to testify what was meant by the words in the writing: “You may have ten days from this date in which to place the stock.” The authorities relied upon by defendant, holding evidence of usage admissible to prove what is meant by expressions in contracts, have no application. The excluded testimony was not of that character. The ruling of the court merely denied the right of a witness to testify to the proper construction of á writing. Clearly this ruling was correct.

Rulings relating to the admissibility of testimony. It is contended that the trial court erred in permitting plaintiff to prove that at the time the memorandum was executed the defendant told him to notify him (defendant ) if he found a purchaser by sending such notice to Au Sable, and that the place of the delivery of the timber was the dock at Au Sable. It is insisted that this testimony was inadmissible because it tended to vary the terms of the writing, and also because, as the contract was one for the sale of goods for more than $50, none of its terms could rest in parol. It is true that the contract contemplated the sale of goods for more than $50. Plaintiff was to find a purchaser who would enter into such a contract. This circumstance did not however require the contract between the plaintiff and defendant to be in writing. Waterman Real Estate Exchange v. Stevens, 71 Mich. 104.

Was the testimony inadmissible because it tended to vary the terms of the writing ? That this objection is not good, in so far as it relates to the testimony respecting the place where the notice should be sent, is settled by our decision of Town v. Jepson, 133 Mich. 673. See, also, Liggett Spring & Axle Co. v. Michigan Buggy Co., 106 Mich. 445; National Cash Register Co. v. Blumenthal, 85 Mich. 464.

Was it permissible to prove that defendant stated that the timber would be delivered at a dock in Au Sable? The writing states, ‘c The terms of shipment to be the removal of the lumber as fast as 500 M. feet is cut and piled onp the dock.” What dock? That is a question which arises in interpreting the document. There are many docks to which this description will apply. While it is true that as a general rule the declarations of a party are not admissible to prove his intention (see 4 Wigmore on Evidence, § 2471), there is this exception:

“They are receivable to assist in interpreting an equivocation, — that is, a term which, upon application to external objects, is found to fit two or more of them equally.” 4 Wigmore on Evidence, § 2472.

The testimony under consideration comes within this exception and was properly admitted.

It is also insisted that the contract between the plaintiff and defendant was one which could not be performed within a year; that its terms should therefore be in writing, and that for this reason the testimony under consideration was improperly admitted. This objection was not made in the trial court and we decline to consider it.

The only authorized agent of the purchaser went to Alpena before the lapse of said 10 days for the purpose of closing up the deal with defendant. Plaintiff was permitted to testify to a conversation with said agent which tended to prove his willingness to buy the timber on the terms set forth in the memorandum signed by defendant. Subsequently defendant offered to prove that said agent made inconsistent statements at a later time and place. This testimony was excluded. Defendant contends that each of these rulings cannot be correct. We think Otherwise. The ruling admitting the testimony was clearly correct. It had a tendency to establish the claim of plaintiff that he procured a purchaser for defendant’s timber. What the purchaser may have stated later was clearly hearsay and inadmissible.

Measure of damages. The evidence proved that there was actually delivered, in the season of 1903, to the purchaser heretofore mentioned, not the amount of 3,000,000 feet stated in the writing delivered by defendant to plaintiff, but a little less than 2,000,000 feet, and defendant insists that this lesser amount, instead of the 3,000,000 feet, affords the proper basis for measuring plaintiff’s damages. We think otherwise. By the writing defendant obligated himself to sell 3,000,000 feet. That obligation would not be affected by the circumstance that in his subsequent dealing it was impossible or inconvenient to deliver so large an amount. In this connection we consider defendant’s complaint that plaintiff was improperly permitted,to answer the question:

Q. What was a fair and reasonable compensation per thousand feet commission for procuring a purchaser for this Norway ? ”

The answer was 25 cents a thousand. We are not called upon to determine whether or not this testimony \yas properly admitted, for its admission did not prejudice defendant. Under the undisputed testimony in the case, as heretofore indicated, the law of custom determined the rights of the parties and determined that plaintiff was entitled to inspect this timber and to receive for his services 25 cents per thousand, and he was permitted to recover on this theory.

Premature action. It is insisted that, since the contract was one contemplating the sale of timber to be delivered during the season of 1903, the suit could not properly be commenced in November, 1902. It is undoubtedly true that if the contract had been performed plaintiff would have had no right of action until he had inspected the timber during the season of 1903. But defendant by refusing to deal with the purchaser procured by plaintiff had repudiated that contract. By subsequently selling the timber through another broker he had intentionally disabled himself from performing it. Under these circumstances it was unnecessary for plaintiff to wait. He had a right to sue at once. Platt v. Brand, 26 Mich. 173; Hosmer v. Wilson, 7 Mich. 294, 304.

No other question demands discussion. The judgment is affirmed.

Grant, O. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    PEOPLE v. BOYD.
    1. Criminal Law — Appeals—Brief—Statement of Facts — Necessity — Court Bule.
    Where, in. a criminal case, the brief of appellant does not contain a clear and concise statement of the facts of the case, distinct from argument, and of the errors upon which he relies, as required by Supreme Court Bule 40, the court will rely upon the statement in the brief for the people.
    3. Intoxicating Liquors — Keeping Open on Sunday — What Constitutes.
    Where a saloon keeper lived with hjs family in rooms over his saloon, to which access was had by means of a stairway leading from a room communicating with other rooms used in connection with the bar, the presence of persons on Sunday in the rooms used in connection with the bar constitutes a failure to keep his saloon closed on Sunday as required by the statute.
    3. Same — Instructions—Propriety.
    Instructions to the effect that the rooms which must not be opened on Sunday are those in which it was customary or defendant’s practice to serve from the barroom construed, and held, not objectionable as directing the jury that if wine or beer had ever been served in defendant’s living rooms, he and his family would have had to go away from home and stay away after ten o’clock at night and on Sundays.
    4. Criminal Law — Trial—Argument of Counsel — Good-Faith Claim as to Law.
    A good-faith claim by the prosecuting attorney, in arguing a criminal case, that the people would be entitled to a conviction under a certain state of facts, is not ground for reversal though the claim was too broad.
    5. Same — Appeal—Waiver of Objection..
    Where the prosecuting attorney stated his reasons in open court for leaving the name of the complaining witness off the information and not producing him as a witness, and defendant insisted generally that the showing was insufficient and asked for a dismissal, the objection that the showing was not under oath was waived.

      6. Same — Witnesses—Indorsement on Information.
    Where the complaining witness in a prosecution under the liquor law absconded immediately after making the complaint, and the officers were unable to find him, and he was not produced on the examination, and diligent search failed to discover him before the trial, there was sufficient excuse shown for leaving his name off the information and no.t producing, him at the trial.
    7. Same — Discretion of Court — Continuance — Change of Venue.
    Rulings on motions for continuance and change of venue will not be disturbed in the absence of abuse of disóretion.
    Exceptions before judgment from Hillsdale; Chester, J.
    Submitted January 23, 1908.
    (Docket No. 15.)
    Decided March 17, 1908.
    William J. Boyd was convicted of violating the liquor law.
    Affirmed.

      Charles A. Shepard and Victor Hawkins, for appellant.

      Clayton A. Powell, Prosecuting Attorney, for the people.
   Carpenter, J.

Defendant is a saloon keeper in the city of Hillsdale. In the circuit court he was convicted of the offense of not having his saloon closed, as required by law, on Sunday, October 7, 1906. He asks us to. set aside that conviction. His brief in this court does not “ contain a clear and concise statement of the facts of the case, distinct from argument, and of the errors upon which he relies,” as required by Supreme Court Rule 40. Under these circumstances we think we are warranted in relying upon the statement in the brief for the people. It reads as follows:

“ On the 7th day of October, 1906, the defendant was in the occupancy of-a two story brick building on the east side of Hillsdale street and south of the railroad in Hills-dale city. The ground floor of said building consisted of one large room on the south, known as the barroom proper, and two smaller rooms adjoining it on the north, known as wine rooms and furnished with tables and chairs in which wines and liquors from the bar were served and drank. These rooms communicated with the barroom by doors. A hall is on the west side of the ground floor. At the north end of said hall was a small room in which a temporary bar was placed during Fair times and on other days when there was a rush of business. At the south end of said hall there was a small room from which a stairway led up to the second floor. From this stairway room a door opened onto Hillsdale street; the second floor was used as living rooms and bedrooms and for purposes not pertaining to the saloon business. The access to the second floor of this building from Hillsdale street was by way of a door opening into this small stairway room and up the open stairway. Besides this door leading into the stairway room and the door at the southwest corner of said building leading into the saloon proper, access was also had to said building through a shed at the north end of the building which opened into the west wine room. These wine rooms communicated with each other by doorway and the west wine room communicated with the hallway in the same manner; none of the ground floor rooms were used for living rooms.”

The testimony introduced by the people tended to prove that on the Sunday in question several persons were in one of these wine rooms, and it is to be inferred from the record that the jury credited this testimony. If so, defendant was guilty. People v. Higgins, 56 Mich. 159; People v. Hughes, 90 Mich. 368; People v. Ringsted, 90 Mich. 371.

After the trial judge had concluded his charge to the jury, defendant’s counsel preferred this request:

“Mr. Boyd had a perfect right to open the front door and to admit people through that door to the reception hall, and that the family had a right to go to the refrigerator and get therefrom family supplies, even though the refrigerator is located in the saloon.”

In response to this the trial court charged the jury:

“He would have a right to go in the front door, providing that did not open into a room in which they had served wines; that is, rooms in which it was customary or his practice to serve from the barroom. If it does, then he would have no right to open it. If it does not, then he has a right to open it for the purpose of going to- and from the stairs to his living rooms. In other words, a man can’t so arrange his living rooms that in order to get to them it is his duty to pass through or open his saloon or any room which is used as a part of the saloon. On the other hand, if he does not use it as a part of his saloon in serving liquors, then he would have a right to open that door to go to his living rooms. * * * There is evidence * * * that one witness went to the refrigerator to get some eatables. * * * I don’t understand that the prosecutor asks for a conviction on that-act. It is simply upon the question of whether or not this wine room was opened where the liquors were served during the week, and that people were in there.”

This charge is complained of, and the complaint is this:

“ If the court is right in his contention, and if wine or beer had ever been served in defendant’s living rooms, he and his family would have had to have gone away from home and stay away after ten o’clock at night and on Sundays.”

Manifestly this is placing upon the language of ,the trial court, above quoted, an entirely erroneous construction. The rooms which the trial court said must not be opened on Sunday are those “ in which it was customary or his practice to serve from the barroom.”

Complaint is made because the prosecuting attorney, in his argument to the jury,. claimed that “we would be entitled to a conviction under the statute if Mr. Boyd let any one into the reception hall that opens right into the saloon byway of another hall into the wine room.” We are not called upon to say whether or not the prosecuting attorney was correct in this legal position. He made the claim in good faith and he had a right to make it. As was said by Justice Montgomery in Knickerbocker v. Worthing, 138 Mich. 239:

“ The lawyer is not bound to guarantee that his position on the legal questions that arise during the progress of a trial shall in all cases be unassailable. To impose such a burden upon counsel would render fair discussion of legal questions impossible, and would withdraw from the trial judge the great aid now derived from arguments of counsel.”

The name of the complaining witness was not indorsed on the information and he was not produced as a witness. Respecting this the prosecuting attorney said:

“After this complaint was made and before the examination was held, we were unable to find the complaining witness anywhere, after making diligent search for him. He was a barber here in this town at the time the complaint was made, as I understand it, and very soon after the complaint was made he absconded; that the officers were unable, after making a diligent search, to find him or any trace of him; and for that reason we were unable to produce him on the examination, and I left his name off from the information because I didn’t think it would be possible to produce him here in court.”

He stated, further, in answer to inquiries of defendant’s counsel, that, for the purpose of procuring said witness on the examination, a subpoena was issued and diligent search made, and that before the trial in the circuit court “inquiry was ipade but no trace of him could be found.” Defendant’s counsel insisted that this showing was insufficient, and asked the trial court to dismiss the case for that reason. In what way it was insufficient was not pointed out. If it had been insisted that this showing should have been made under oath, it is to be assumed that such showing would have been so made. The nature of the objection must be treated as a waiver of that formality. Assuming the facts to be as stated by the prosecuting attorney — and we think they should be so assumed— excuse for not calling the complaining witness was sufficient.

Before commencing the trial of this case the trial court denied a motion for a continuance and a motion for a change of venue. Complaint is made of these denials. They need not be discussed. They were matters within the discretion of the trial court, and there is no ground for saying that his discretion was abused.

The conviction is affirmed.

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


text:
    DEAN v. MILLARD.
    Highways — Improvement—Ditches—Injury to Landowner.
    Highway officers will not be enjoined from carrying into execution a good-faith plan of improving a highway by avoiding carrying surface water across the roadway and back by digging a ditch alongside the way, though such course incidentally damages complainant by making access to his land from the highway more difficult, and benefits his neighbor across the way by diverting the water that would otherwise be precipitated upon his land; complainant not being entitled to base right to relief upon his neighbor’s advantage, and his own injury being damnum absque injuria.
    Appeal from Ottawa; Padgham, J.
    Submitted January 28, 1908.
    (Docket No. 144.)

    Decided March 17, 1908.
    Bill by John Dean and Thomas Dean against Charles Millard, highway commissioner, to enjoin the construction of a ditch. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Walter I. Lillie, for complainants.

      George A. Farr, for defendant.
   Carpenter, J.

Complainants own a farm situated on the north side of an east and west highway in the township of Tallmadge, Ottawa county, in this State. A few rods west of the west line of complainants’ farm, said east and west highway ascends a hill 15 feet in height. In the state of nature the surplus surface water flowed from said hill along the north side of said highway into a gully on complainants’ farm. There it mingled with other surplus surface water coming from complainants’ farm, and flowed southward across the line of said highway — through a culvert placed under the roadbed — onto the land of one Friar, whose farm is on the south side of said highway opposite to that of complainants; thence it passed easterly, and then it went back across the highway through a culvert situated east of the eastern line of complainants’ farm, and from there it found its way to a natural stream called Sand Creek. It was found that in times of heavy rains or freshets the water coming down said hill brought with it such quantities of sand, clay, and gravel that the culvert situated between the farm of complainants and Friar was frequently filled up and clogged, and the water, instead of running across the highway, backed up and damaged the roadbed. In consequence of this the highway was sometimes impassable at that point. The highway authorities decided to remedy the trouble by keeping this water on the north side of the roadbed until it reached a point beyond the east line of complainants’ farm. They therefore planned and undertook to dig a ditch parallel with and close to the north side of the roadbed from the top of the hill to the eastern culvert. Said ditch was quite shallow at the top of the hill, but was of considerable depth in front of complainants’ farm. A similar ditch on the south side of said roadbed was also planned. It was also the intention of the public authorities to construct a crossing whereby^ complainants might drive over said ditch and thus obtain access to their land. After this plan had been made and nearly executed complainants filed this bill for the purpose of enjoining the taking of further steps towards its execution. The suit was heard in the circuit court, and a decree entered dismissing complainants’ bill. Complainants appeal to this court.

It will be observed that, in consequence of the plan of improvement adopted by the highway authorities, complainants will suffer an inconvenience, while their neighbor Friar will secure an advantage. The inconvenience to the complainants is that a deep ditch will separate their farm from the adjacent roadbed on the south. The advantage to Friar is that the surface water coming from the north of the highway will no longer be precipitated on his farm.

If the improvement of the highway was a mere pretence ; if the real object of the highway authorities was to procure an advantage to Friar at the expense of complainants, we should by no means declare that relief should be denied. But that was not their object. The testimony convinces us, as it convinced the trial judge, that the improvement of the highway was their actual object; that they adopted this plan of improving the highway in good faith and not for the purpose of annoying complainants, nor for the purpose of affording profit to their neighbor. Moreover, their plan would seem to be one calculated to effect the object for which it was adopted. . -

Complainants cannot base their right to relief upon the ground that the water was diverted from flowing on their neighbor’s land, unless that diversion affected their right. Their right to relief must depend upon their injury. It cannot depend upon their neighbor’s advantage. The cases of Smith v. Township of Eaton, 138 Mich. 511, and Elliott v. Carter, 140 Mich. 303, where we denied the right of authorities improving a highway to turn water from its natural course on the land of another are relied upon by complainants. They have no application. There the improvements cast the surface water upon complainant’s land. No such result is brought about in this case. In those cases we did not hold that after surface water leaves one’s land he has a legal right to have it flow in its accustomed channel. He has no such right unless its diversion injuriously affects him. The determining question then is this: Will the execution of the plan work a legal injury to complainants ? The sole injury they will sustain is that the ditch dug between their farm and the roadbed will inconvenience their access to the farm. Have the highway authorities then a legal right, in making highway improvements, to make a ditch alongside the roadbed which will render less convenient access to the highway by the adjacant owner? This is not a new question in this State. It has already been decided, and decided adversely to complainants’ contention. In Highway Com’rs of Eagle Township v. Ely, 54 Mich. 177, this court in a similar case said:

“ If, therefore, in this case the ditch in question was such an ordinary ditch as the good of the road should dictate; if the sole end of constructing it was to improve the road and the consequent benefit to the public; and if in carrying out thiá object it became either necessary or expedient to dig the ditch in front of the defendant’s premises and past his gateway, the commissioner, or overseer acting under his directions, had a right to do it; and if in the execution of this power, which was entirely in their discretion, they dug the ditch to such depth and width as to render it impassable for teams or vehicles going in or out of defendant’s fields, they would incur no liability to defendant. It would be the performance of a public duty and the exercise of lawful authority, from which, if defendant suffered injury, it would be damnum absque injuria. There is no liability for. doing an act which is either directed or authorized by a valid statute, if performed with reasonable care and skill. There is no law which requires the township authorities, in making or repairing roads, to construct proper or convenient passageways to enable an adjoining landowner to reach the traveled part of the highway. If in filling up the low places or in cutting down the hills to improve the public roads an adjoining landowner is inconvenienced, or his land made more difficult of access, it is an inconvenience or loss which he sustains for the public benefit.”

The decree must be affirmed.

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


text:
    DEWEY v. DEWEY.
    1. Limitation of Actions — Statute — Application — Decree Payable in Installments.
    Where a decree for divorce required complainant to pay defendant a certain amount per week for the support of an infant child, no part of which was demanded or paid for many years, limitations would not bar execution upon defendant’s claim except as to payments accruing more than ten years prior to application for execution.
    2. Execution — Issuance—Propriety — Chancery Decree — Necessity of Enrollment.
    Though application for execution maybe filed and an order entered thereon before enrollment of the decree upon which it is founded, the statute and the rules forbid the issuance of execution before enrollment. 1 Comp. Laws, § 468; Chancery Rule 24 a, e.

    3. Same — Application—Notice—Hearing—Necessity.
    The party against whom a chancery decree for the payment of money-in installments in the future has been entered is entitled to notice and a hearing upon his adversary’s application for an execution thereon.
    4. Same — Decree—Enrollment Nunc Pro Tunc — Effect.
    Where the issuance of execution on a chancery decree was irregular both because it was issued before enrollment and without notice to the execution defendant, an order for enrollmentnunc pro tunc, if effective to cure that defect, would not relieve the proceeding from the'irregularity in the matter of service.
    Appeal from Shiawassee; Miner, J.
    Submitted January 23, 1908.
    (Docket No. 133.)
    Decided March 17, 1908.
    Petition by Fred E. Dewey against Eugenia M. Dewey to set aside an execution, levy, and sale. From a decree denying the petition, petitioner appeals.
    Reversed.

      Cook & Chandler, for petitioner.

      B. E. & W. E. Hawley, for defendant.
   Hooker, J.

A decree of divorce was entered against defendant, Eugenia M. Dewey, and in favor of complainant, Fred E. Dewey, by the circuit court for the county of Shiawassee, in chancery, on September 16, 1890, the bill having been taken as confessed for nonappearance. The decree awarded two children to the custody of the defendant, and provided that complainant should pay to the defendant for the support of their child, Pearl Dewey, the sum of $3 weekly until she should reach the age of 14 years. No portion of said allowance has ever been demanded or paid. Mrs. Dewey remarried on March 1, 1898. The decree was not enrolled and nothing further was done in the case until May 11, 1903, when defendant filed a petition alleging nonpayment, claiming that the amount due her upon the decree was $1,104, consisting of $780 of the allowance not barred by the statute of limitations and $274 interest, and praying that execution issue forthwith; and on the same day an order was made determining the amount due to be $1,104, and directing that execution issue to the sheriff of Ionia county, and it was issued the same day. These proceedings were ex parte and without notice to complainant or his counsel and no testimony was taken. In August, 1905, in pursuance of a levy made upon land, the same was sold to defendant for the amount of $1,104, and a certificate was filed for record with the register of deeds on August 12th.

On March 8, 1907, the complainant filed a petition to set aside the order, recall the execution, have the proceedings under the execution declared void, and the cloud removed from the land, in which complainant alleged that he had an undivided half interest. An answer was filed, and upon the hearing the court found:

‘ ‘ First. That at the time that said execution was issued that the judgment was not outlawed.

Second. I find that the files and records in said cause were not enrolled as required by the rule.

Third. I find that the court has authority to order said proceedings enrolled nunc pro tunc. ”

And ordered:

“First. That said proceedings be enrolled nunc pro tunc as of the 11th day of May, 1903, and that the said petition be denied.

“ But inasmuch as the execution in said cause was issued in contravention of the rules of this court, I deem it proper and just that if said complainant shall on or before the first day of January, 1908, pay to the register of said court or to said defendant or her solicitor the sum of one thousand one hundred and four dollars and simple interest thereon at five per cent, from the 11th day of May, 1903, to the time of said judgment, then and in such case said execution and sale mentioned in said petition will be set aside; otherwise to remain in full force and virtue. ”

A decree in accordance with the order was entered and complainant has appealed.

We concur with the learned circuit judge that the claim of the defendant was not barred by the statute of limitations at the time that the application for execution and the order based thereon were made or when the writ issued. See Field v. Loveridge, 114 Mich. 220.

There was no obstacle to the filing of said application, or the making of an order thereon, before enrollment. Taylor v. Gladwin, 40 Mich. 235.

The statute and the rules forbid the issue of execution before enrollment.

“No execution shall be issued on any final 'decree, until the same shall have been enrolled, as hereinbefore provided.” 1 Comp. Laws, § 468.

“ No process shall be issued or other proceedings had on any final decree, to enforce the same, until the same is duly enrolled pursuant to statute.

“No conveyance shall be executed by a commissioner or other officer * * * until such enrollment is had.” Chancery Rule 24 a, c.

The issue of execution was irregular, both because it was issued in violation of the statute and rules, and for want of service of notice upon the complainant, who was entitled to a hearing. See Perkins v. Perkins, 16 Mich. 166.

If, as contended, the order nunc pro tunc might cure the defect arising from the want of enrollment, which we do not decide, it could not relieve the proceeding from the irregularity in the matter of service. The sale should have been vacated for this reason. This would leave the case where it was after the petition was filed, with jurisdiction on the part of the court to bring in the complainant by a new order and proper service and to grant and issue execution after a proper hearing, unless the authority to do so has been lost by lapse of time since the execution heretofore issued, a question that we do not decide for the reason that it has not been referred to by counsel. See 1 Freeman on Executions (3d Ed.), §§ 27-31; Eddy v. Coldwell, 23 Or. 163; DeLoach v. Robbins, 102 Ala. 288; Jerome v. Williams, 13 Mich. 521; Parsons v. Wayne Circuit Judge, 37 Mich. 287; Ludeman v. Hirth, 96 Mich. 17.

The decree is reversed, and a decree may be entered here setting aside the sale and all proceedings subsequent to the filing of the petition for execution. No costs allowed to either party.

Grant, O. J., and Blair, Montgomery, and Ostrander, JJ., concurred.


author: Blair, J.

text:
    CAIRBRE v. McQUILLAN.
    Money Lent — Evidenoe—Letters—Admissibility.
    In an action for money advanced by plaintiff to his stepson while the latter was attending school, letters written by defendant at the time, addressed jointly to plaintiff and defendant’s mother, wherein he expressed gratitude for money loaned him by plaintiff and promised to return it, were admissible as admissions of the receipt of the money, and that it was not a gift, even though it was necessary to construe them as admissions of a joint liability,- since plaintiff was not bound by the letters, his cause of action was not being based thereon, but being for money advanced, of which the letters were merely evidence.
    Error to Marquette; Stone, J.
    Submitted February 17, 1908.
    (Docket No. 170.)
    Decided March 17, 1908.
    Assumpsit by Bernard Cairbre against James McQuillan for money had and received. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      J. L. Heffernan (Thomas, Cummins & Nichols, of counsel), for appellant.

      T. J. Dundon, for appellee.
   Blair, J.

Plaintiff instituted this suit to recover for moneys advanced to defendant, his stepson, to enable him to pay for his education as a physician and surgeon at McGill College, Montreal, Canada, from 1870 to 1874, and for other items afterwards advanced. The defendant pleaded the general issue with notice of set-off, payment, and the statute of limitations. Defendant admitted receiving various sums of money from home, but claimed that it was sent by his mother and not by his stepfather, and that he had paid it back.

“Q. Did you pay back the money you received from borne while in college ?

“A. Several times over I gave it back.

“Q. Who received it ?

“A. My mother.”

Defendant left the State in 1890 and has not resided here since. Plaintiff testified to certain payments by defendant, which, if believed by the jury to have been made, would prevent the barring of the claim by the statute of limitations. These payments were denied by the defendant. Mr. F. B. Spear, a witness for plaintiff, testified:

“ Mr. Cairbre, the plaintiff, worked for me from fifteen to twenty years; I did business for him in the way of remitting money by his orders to the defendant here; I sent drafts, or money, or express orders; something of that kind, under the instruction of Mr. Cairbre, on a great many occasions, my bookkeeper and I, sometimes one and sometimes the other; I knew of it; the money was money due him for work; different sums; I could not mention any sums.”

Counsel for plaintiff, in the course of his examination, offered certain letters signed by defendant in evidence, whereupon the following occurred:

Mr. Dundon: I object to it.

The Court: It is not proper testimony. You offer a letter. Let me see the letter.

“Mr. Dundon: I object to the introduction of the letters. If there is anything in them in the form of a promise to pay money, it is made to the father and mother jointly.

The Court: That seems to be so. It reads, ‘My dear mother and father.,’ No promise to them could be sued upon by this husband. The only thing that would make it material would be the promise to pay. This letter being addressed to the father and mother does not strengthen your case. He cannot sue upon a promise made to,the father and mother; it is a joint promise. I admitted these letters before, but my attention was not called to that fact.

“Mr. Hejfernan: We go on the ground that it is an acknowledgment of the debt; if he includes somebody else—

The Court: It is an acknowledgment of a debt to two persons.

“Mr. Heffernan: We have authorities to show that it wouldn’t make any difference as long as it included his debt,

The Court: I will sustain the objections to the letters unless you have some letters addressed to him, some letter containing this promise to him.

Mr. Heffernan: I suppose I may take an exception.

The Court: Oh, certainly, certainly.

“Mr. Heffernan: They were all addressed the same way.

The Court: They will all have to be excluded then— the same ruling.”

In his charge to the jury, the court said:

“And he claims that these moneys sent to him from time to time were sent by his mother. That it was her money, which she had accumulated in the ways in which he says a woman who is somewhat thrifty, would accumulate money. If this money was the money sent him by the plaintiff and his wife so that the wife had an interest in this money, this plaintiff cannot recover in this suit; there is no evidence that he represents his wife, or has any-right to sue for her.”

Tfye letters in question were addressed either “My Dear Mother and Father,” or “My Dear Father and Mother.” Three of the letters as printed in the record read as follows:

“Montreal, McGill College, July 15, ’73.

“My Dear Father and Mother: With much pleasure I hasten to answer your kind and affectionate note. Am so glad when I read your letter to ascertain that dear mother’s health and spirits are so good. She may well anticipate her future destiny for she has duly earned it. And you, dear father, you have done a work and is still doing, which I never expected, neither did I deserve. But, please God, it’s only lent, to be paid with good interest. * * * Hoping this will find you all well as I am at present.

“ Your loving son,

“Jas. McQuillan, to dear father and mother.”

“Montreal, June 16th, ’73.

“ My Dear Father and Mother: Your favor duly came to hand yesterday bearing an order of $50 which I am forever obliged to you and I hope next summer things will take a different turn. Am glad to hear you are all well, especially mother; I hope her health will improve and I am sure it will if she strictly follow out my advice. Am sure if I was once graduated and had her with me she will never feel sick any more. * * *

“Dear father, I am glad you got your old job and an increase in salary; you are one of the noblest men that ever lived; things in every case seems to thrive with you. I hope God and I shall repay you for all those days of sweat and toil. I’ll stop, hoping God will spare your health and me for some time and we will astonish the natives.

“Jas. McQuillan.

“ Dear father and mother.”

“Montreal, Feb. 2d, ’75.

“My Dear Mother and Father: It’s with pleasure I answer your most loving letter of the 21st Jan. inst. I am well, thanks be to God.

“ Thinking dear mother’s health is improving, well dear mother may say that she will have some person to back her in a short time, * * * and well she deserves it; she is fighting the great fight and hope God will keep misfortunes away and we will conquer. I am glad to hear that you are working this winter, of course, there is a great deal of self attached to this expression, but one thing sure, it won’t be many winters till you will not need work of Spear, or any person, but in the meantime, it’s very necessary. * * * Dear father, again I will have to call on your benevolence again for a little money again. All my tickets are bought and everything is paid up till Feb. 2d, so you will see how much I will want. .* * *

“Your son,

“Jas. McQuillan.

“To dear father and mother. Goodby, except a kiss.”

The jury brought in a verdict of no cause of action, and plaintiff brings the record to this court for review, assigning as error, among other assignments, that the court erred in ruling against the admission of the letters above referred to.

"We are of the opinion that this assignment is well founded. The letters quoted tended to support the plaintiff’s contention that he himself sent money to the defendant from his earnings, which belonged exclusively to himself, and that defendant so understood. The letters of July 15, 1873, and February 3, 1875, are recognitions of liability to plaintiff individually, and are inconsistent with defendant’s claim that his mother sent him the money. Even if it were necessary to construe the letters as admissions of a joint liability, we are of the opinion that they would still be competent evidence of the fact of receipt of the money and of the fact that it was a loan and not a gift. The plaintiff would not be bound by the letters so that he would not be permitted to prove the fact of liability to be several instead of joint. Plaintiff’s cause of action was not based upon the letters, but upon the furnishing of the money,’ the letters were merely evidence, by way of admissions, in support of his cause of action and in contravention of defendant’s claim, subject to explanation like any oral evidence, and to be weighed by the jury and used for what they considered them worth in view of all the testimony in the case.

In view of a new trial, we do not consider it necessary to discuss the other assignments of error.

The judgment is reversed, and a new trial granted.

Grant, O. J., and Montgomery, Ostrander, and Moore, JJ., concurred.