text:
    GENROW v. FLYNN.
    1. Attorney and Client — Contracts — Fees — Recovery of Money Paid to Attorney by Client.
    Attorneys, employed to prosecute an action for a stipulated fee and a percentage of the proceeds, are entitled to the sum agreed upon when they have commenced proceedings, and, unless by reason of misconduct or neglect, where there is no showing that the services performed are worth less than that sum, cannot be deprived of their compensation.
    3. Same — Breach of Contract — Prinoipal and Agent.
    Nor is it a breach of their contract to refuse to continue the action after receiving from the client a telegram unwarrantably charging them with deceit, falsehood and neglect.
    3. Same.
    Any conduct on the part of the client during the progress of the litigation that might tend to degrade or humiliate the attorneys furnishes sufficient cause for abandonment.
    Error to Wayne; Mandell, J.
    Submitted June 16, 1911.
    ( Docket No. 86.)
    Decided July 5, 1911.
    Assumpsit by Charles A. Genrow against William H. Elynn and E. J. R. Sevald, copartners as Flynn & Sevald, to recover back attorney’s fees paid defendants. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Samuel E. Jones, for appellant.

      William C. Stuart, for appellees.
   Stone, J.

This suit was brought to recover the sum of $335, which plaintiff claims to have paid to the defendants to bring and prosecute a suit to judgment in his behalf as hereinafter stated. It is the claim of the plaintiff that he paid this sum to the defendants, and that, although they instituted said suit, they failed to prosecute it, and he seeks to recover the entire sum paid to them.

The defendants were, and are, practicing attorneys at law in the city of Detroit. In the month of December, 1906, they were employed by the plaintiff to bring a suit for malpractice against a physician residing at Alpena. The plaintiff agreed to pay defendants a fee of $300, and a percentage of any judgment recovered, and also to employ local counsel at Alpena to assist in the preliminary work in the case. The defendants employed reputable counsel to assist them in the case, and paid him a retainer fee of $100. The defendants were to pay all costs except witness fees. The suit was duly commenced by summons in the Alpena circuit in December, 1906, and declaration filed and issue framed. The plaintiff insisted upon an amendment to the declaration charging the defendant in that suit with certain degrading acts. It was the opinion and judgment of the defendants and their counsel that such change should not be made in the declaration. Considerable correspondence was had between the plaintiff and defendants relating to such proposed amendment, and, finally, the defendants yielded and an amended declaration was filed. The plaintiff then insisted that a motion should be made to change the venue to some other county than Alpena. The first motion was denied for some matter not upon the merits. Another motion was made, which was denied August 22, 1907. It was then too late to notice the case for the September term of court. The next term of court commenced in December, 1907, and the defendants caused the case to be noticed for trial for the December term on November 15, 1907.

The relations between the plaintiff and the defendants were not altogether pleasant, as appear by the letters in the record written to the defendants from time to time by the plaintiff. On November 19, 1907, four days after the case was noticed for trial, the defendants received a lengthy telegram from the plaintiff containing the following language:

“ You have deceived, lied, and neglected me in every possible way you could. I was a good fellow until you got over three hundred dollars of my money. * * * I don’t intend to stand your abuse any longer.”

Thereupon defendants mailed to the plaintiff a blank form of substitution of attorneys signed by them, and withdrew from the suit.

It was the plaintiff’s claim in this suit that he was entitled to recover of the defendants the entire sum paid to them or nothing; and the important question is whether or not the defendants were justified in treating the telegram above quoted as a dismissal and discharge, or a sufficient cause for withdrawal from the case. We have read the record in the case, and are unable to find any evidence that the defendants had not, down to the time of receiving the telegram, done and performed their full duty to the plaintiff. They had spent a number of weeks of labor in the case. There is no evidence that the services performed by defendants were not worth all that they had received from the plaintiff. But the claim of the plaintiff seems to be that, notwithstanding his conduct toward the defendants, they must either show a performance of the contract or return all of the money paid to them." Upon the trial of the case the circuit judge directed a verdict and judgment for the defendants upon the ground that the conduct of the plaintiff was equivalent to a dismissal and discharge of his counsel, and that they were justified in not proceeding further with the case, and that the plaintiff, not having shown that he was entitled to recover the whole sum sued for, and, there being no evidence as to the value of the services the defendants actually rendered, was not entitled to recover in the suit. There is only one assignment of error, which claims that the circuit judge erred in directing a verdict and judgment for the defendants.

The case is a very unusual one, and the authorities upon the exact subject are not numerous. This court held in City of Detroit v. Whittemore, 27 Mich. 281, that the employment of counsel does not differ in its incidents, or in the rules which govern it, from the employment of an agent in any other capacity or business; In that case Justice Cooley said:

“An attorney employed to carry a suit through for an agreed sum has a vested right to the compensation when he accepts and begins the service; and he cannot be lawfully deprived of if except by his own consent, or through his own default or misconduct. If he is discharged from the employment before the service is completed, he may recover the whole sum, * * * because of the manifest impossibility of making an apportionment of the services and compensation, when the parties themselves by their contract expressly abstained from making any, and may in fact be said to have agreed that none should be made.”

We are constrained to say that, under the undisputed evidence in the case, it was not a breach of duty or contract for the defendants to decline to proceed further under the circumstances. Certainly no reputable attorneys could continue in a case after the receipt of such a telegram from a client. We think that the plaintiff by his own act practically made it impossible for the defendants to perform their contract. Any conduct on the part of the client, during the progress of the litigation, which would tend to degrade or humiliate the attorney would furnish sufficient cause for abandonment. See 2 Clark & Skyles on Agency, pp, 1555, 1556; Weeks on Attorneys at Law, § 255, and cases cited. There are authorities to the effect that where the attorney has a justifiable cause for his abandonment, and if he has made a special contract with his client to perform the services for a certain fee, he may recover the whole amount of the fee in like manner as if his services had been completely performed; the cause of abandonment being considered as a prevention of full performance by the client. See 2 Clark & Skyles on Agency, supra; Millard v. Jordan, 76 Mich. 131 (42 N. W. 1085); Moyer v. Cantieny, 41 Minn. 242 (42 N. W. 1060); Tenney v. Berger, 93 N. Y. 524 (45 Am. Rep. 263); Weeks on Attorneys at Law, supra; 4 Cyc. p. 984, and cases cited.

The relations between attorney and counsel are of a delicate and confidential nature. They should have faith in each other, and their relations should be such that they can cordially co-operate. What is a sufficient cause to justify an attorney in abandoning a case in which he has been retained has not been laid down by any general rule, and in the nature of things cannot be; but where, as in this case, the plaintiff, even if he has any ground for communicating with his attorneys, instead of doing so by mail under the secrecy of the postal laws, seeks to degrade and humiliate them by sending a telegram in which he states that they have been guilty of falsehood and gross fraud and neglect, and that he does not intend to stand their abuse any longer, it must.be held that such conduct is equivalent to a discharge of his counsel, and a breaking off of the confidential and delicate relation theretofore existing between them. Such conduct must result in the destruction of all faith in each other and render it impossible for them to further co-operate.

We think the circuit judge did not err in directing a verdict and judgment for the defendants, and the judgment below is affirmed.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    FUCHS v. COMMON COUNCIL OF THE VILLAGE OF GRASS LAKE.
    1. Intoxicating Liquors — Villages—Prohibition—Mandamus.
    Mandamus, being a discretionary writ, will not issue to compel a village council to grant relator a license to conduct a saloon, where, after the relator’s application was filed and before the hearing in the mandamus proceedings, the council adopted an ordinance prohibiting the liquor traffic, taking effect 10 days after the date at which his license would have gone into force.
    2. Same — Police Power — Alienation.
    The regulation and suppression of the sale of intoxicating liquors is a part of the police power of a municipality and may not be limited or alienated by contract express or implied.
    3. Same — Constitutional Law.
    Under 1 Comp. Laws, § 2769, villages are empowered to suppress saloons, and ordinances for such purpose are constitutional.
    4. Same.
    While respondent should have approved relator’s application, in so far as his right was concerned to conduct a saloon before the ordinance became effective, the circuit court rightly denied the writ of mandamus after that date, when a saloon could not be legally conducted in the village.
    5. Same.
    The writ of mandamus is a discretionary writ that will not be allowed unless the respondent has power to execute it.
    Certiorari to Jackson; Parkinson, J.
    Submitted June 20, 1911.
    (Calendar No. 24,655.)
    Decided July 5, 1911.
    Mandamus by William Fuchs to compel the common council of the village of Grass Lake to approve relator’s application and bond to conduct a saloon. An order denying the writ is reviewed by relator on certiorari.
    Affirmed.

      Frank L. Blackman, for appellant.

      Wilson & Cobb, for respondent.
   Stone, J.

This is a proceeding by certiorari to review the action of the circuit court in refusing to grant to the relator a mandamus. The village of Grass Lake is in the county of Jackson. For two years before the 1st day of May, 1911, the local-option law, so called, was in force in that county. On the 1st day of May, 1911, the board of supervisors passed a resolution repealing the local-option law within the limits of that county in pursuance of a vote of the electors held according to. law. We state in chronological order the history of the proceedings here involved, as we gather them from the pleadings in the case.

On the 10th day of April, 1911, relator filed with the clerk of the village of Grass Lake an application for a license to carry on the business of selling intoxicating liquors at retail within the village during the year beginning May 1, 1911, accompanied by a bond in the penal sum of $3,000, with the Michigan Bonding & Surety Company as surety. At a meeting of the village council held on April 11, 1911, the application was read by the clerk to the council, and, after some discussion, the bond was laid upon the table. A motion was made and carried that the penalty of the bond be fixed at $6,000. At the same meeting an ordinance to suppress saloons in the village of Grass Lake was read, and on motion was laid upon the table. On April 20, 1911, the said village council met and passed an ordinance prohibiting saloons in the village of Grass Lake. Without setting forth the ordinance in full, it is sufficient to say that it complied with the provisions of subdivision 7, § 2769, 1 Comp. Laws. This ordinance was to take effect on the 10th day of May, 1911. It appearing that the application of the relator, which was filed with the council on the 10th day of April, did not comply with the provisions of the statute of 1909, a new application, which seems to have complied with the statute, was made and filed with the clerk of the council by the relator on the 22d day of April, 1911. No further bond was filed. At a meeting of the council held on the 28th day of April, 1911, the last-named application of the relator was refused. On the 3d day of May, 1911, the relator filed a further petition with the clerk of the said council, calling attention to the said action of the board of supervisors on May 1, 1911, and requesting the council to rescind the resolution passed at its last meeting. At a meeting held on the 4th day of May, 1911, the said council refused to grant the petition of relator. On the 8th day of May, 1911, relator presented a petition to the circuit judge praying that a mandamus should issue, requiring said council to meet, within a reasonable time, for the purpose of considering and acting upon the application of relator, and to require said council to approve the same. An order to show cause was granted. Respondent answered, setting up, among other things, that each of its acts in the premises had been lawful, and within the power conferred upon the village of Grass Lake by the statute under which it was incorporated. The mandamus proceedings came on to be heard before the circuit court on the 22d day of May, 1911, and the writ was denied. Whereupon relator petitioned this court for the writ of certiorari to review said action.

There does not seem to be any question that the village of Grass Lake was reincorporated under the general village statute ( § 2941, 1 Comp. Laws). Subdivision 7, § 2769, 1 Comp. Laws, grants to the councils of villages, among other things, the power “to suppress saloons for the sale of spirituous and intoxicating liquors.” Neither is there any question, we think, that the regulation or suppression of the sale of intoxicating liquors in this State is within the police powers of the State or municipality. We quote from Cooley’s Constitutional Limitations (7th Ed.), pp. 399, 400, as follows:

“It has also been intimated in a very able opinion that the police power of the State could not be alienated even by express grant. And this opinion is supported by those cases where it has been held that licenses to make use of property in certain modes may be revoked by the State, notwithstanding they may be connected with grants and based upon a consideration. Thorpe v. Railroad Co., 27 Vt. 140-149 (62 Am. Dec. 625). The legislature cannot make an irrepealable contract as to that which affects public morals or public health so as to limit the exercise of the police power over the subject-matter. , [Butcher's Union Co. v. Crescent City Co., 111 U. S. 746 (4 Sup. Ct. 652)]. * * * See upon this subject [note 1, p. 400, citing the following authorities]: Brick Presbyterian Church v. City of New York, 5 Cow. (N. Y.) 538; Vanderbilt v. Adams, 7 Cow. (N. Y.) 349; State v. Sterling, 8 Mo. 697; Hirn v. State, 1 Ohio St. 15; Calder v. Kurby, 5 Gray (Mass.), 597; Brimmer v. City of Boston, 102 Mass. 19. The power of the State, after granting licenses for the sale of liquors and receiving fees therefor, to revoke the licenses by a general law forbidding sales, has been denied in some cases. See State v. Phalen, 3 Har. [Del.] 441; Adams v. Hackett, 27 N. H. 289 (59 Am. Dec. 376); Boyd & Jackson v. State, 46 Ala. 329. But there is no doubt this is entirely competent. Freleigh v. State, 8 Mo. 606; Metropolitan Board of Excise v. Barrie, 34 N. Y. 657; City of Baltimore v. Clunet, 23 Md. 449; Fell v. State, 42 Md. 71 (20 Am. Rep. 83); Commonwealth v. Brennan, 103 Mass. 70; McKinney v. Town of Salem, 77 Ind. 213; Moore v. City of Indianapolis, 120 Ind. 483 (22 N. E. 424); La Croix v. County Commissioners, 50 Conn. 321 (47 Am. Rep. 648); Brown v. State, 82 Ga. 224 (7 S. E. 915); Boston Beer Co. v. Massachusetts, 97 U. S. 25; State v. Cooke, 24 Minn. 247 (31 Am. Rep. 344); Pleuler v. State, 11 Neb. 547 (10 N. W. 481). * * * Grants of the right to establish lotteries are mere privileges, and as such are revocable. Bass v. Mayor of Nashville, Meigs [Tenn.], 421 (33 Am. Dec. 154); State v. Morris, 77 N. C. 512; Stone v. Mississippi, 101 U. S. 814; Justice v. Commonwealth, 81 Va. 209; State v. Woodward, 89 Ind. 110 (46 Am. Rep. 160); Douglas v. Kentucky, 168 U. S. 488 (18 Sup. Ct. 199). * * * In short, the State cannot by any legislation irrevocably hamper itself in the exercise of its police power. Toledo, etc., R. Co. v. City of Jacksonville, 67 Ill. 37 (16 Am. Rep. 611); Chicago Packing, etc., Co. v. City of Chicago, 88 Ill. 221 (30 Am. Rep. 545); Fertilizing Company v. Hyde Park, 97 U. S. 659; People v. Commissioners, 59 N. Y. 92.”

The same eminent author, at page 849, uses this language:

“These State laws, known as prohibitory liquor laws, the purpose of which is to prevent altogether the manufacture and sale of intoxicating drinks as a beverage, so far as legislation can accomplish that object, cannot be held void as in conflict with the fourteenth amendment. And in several cases it has been held that the fact that such laws may tend to prevent or may absolutely preclude the fulfillment of contracts previously made is no objection to their validity. Any change in the police laws, or indeed in any other laws, might have a like consequence.
" The same laws have also been sustained, when the question of conflict with State constitutions, or with general fundamental principles, has been raised. They are looked upon as police regulations established by the legislature for the prevention of intemperance, pauperism, and crime, and for the abatement of nuisances.”

See note 2, citing People v. Hawley, 3 Mich. 330; Reynolds v. Geary, 26 Conn. 179. “Contracts cannot hamper or impede the State power of police ”— citing Boston Beer Co. v. Massachusetts, supra. See, also, note 3, where many more cases are cited, including People v. Gallagher, 4 Mich. 244. See, also, Whitney v. Grand Rapids Township Board, 71 Mich. 234 (39 N. W. 40); Black on Intoxicating Liquors, §§ 84, 127, 189, 190; Joyce on Intoxicating Liquors, at pages 94-96, 105-107; Woollen & Thornton on the Law of Intoxicating Liquors, § 428, and eases cited; 23 Cyc. pp. 92, 108, 110, 111. Many more authorities might be cited to the same effect.

The exercise of this police power is peculiarly and especially proper in respect to the liquor traffic, as the results which follow from the use of intoxicating liquors often tend to disturb the public peace, and frequently result injuriously to the health and morals of those who partake thereof, and to the safety and health of others. Therefore the power of the State to control and regulate the traffic in such liquors is one which is generally recognized, and its exercise is a proper exercise of what is known as the police power. The validity of such an ordinance has been passed upon by this court in a number of cases. In Post v. Village of Sparta, 58 Mich. 212 (25 N. W. 52), the writ of mandamus was asked for to compel the common council of that village to approve a liquor dealer’s bond. The council, without referring the bond to any committee, rejected it for no other apparent reason than that the village had an ordinance which absolutely prohibited liquor dealing within its bounds. The court denied the writ of mandamus on the ground that the village was organized under the general incorporation law which was so amended in 1883 (Act No. 52, Pub. Acts 1883) as to give the villages organized thereunder the right to suppress saloons.

The validity of the act in question was recognized in Hawkins v. Litchfield Common Council, 120 Mich. 390 (79 N. W. 570), this court holding that the law contemplated formal action by ordinance, and that a resolution of the village council was not sufficient. See, also, Rattenbury v. Northville Common Council, 122 Mich. 158 (80 N. W. 1012); Timm v. Common Council, 149 Mich. 323-325 (112 N. W. 942); Lake v. Village of Cedar Springs, 162 Mich. 569 (127 N. W. 690); Boos v. Scudder, 163 Mich. 678 (127 N. W. 1040, 129 N. W. 193). In Lake v. Village of Cedar Springs, supra, the circumstances were quite similar to the instant case. There the relator filed his application for a license with the respondent on March 23, 1910. The council on April 11th passed an ordinance suppressing saloons for the sale of spirituous and intoxicating liquors in the village, and provided it should take effect on May 1, 1910. The council refused to act upon the relator’s application, and relied on the ordinance as a defense to the proceeding. It will be noted that in that case the ordinance was to take effect on May 1st, while here the ordinance did not take effect until May 10th. The relator relies upon the case of Warner v. Village of Lawrence, 62 Mich. 251 (28 N. W. 844). We think that case can be distinguished. In that case the ordinance took effect on the 3d day of May, and there were two days in which, had the bond been approved, the relator could have engaged in the traffic, and the ordinance could have no effect before that date. The reason that the common council in that case had refused to act when it should have acted upon the bond may have been a reason why the writ was granted, in order that the constitutional validity of the ordinance might be raised; the court using this language:

“Wedo not think it proper under such circumstances to pass upon the constitutional question.”

The constitutional question seems now to be thoroughly settled, and the validity of such ordinances has been since frequently passed upon by this court. It is true that in the instant case the ordinance did not take effect until May 10th; and, while it may have been the duty of the respondent to approve the application of relator filed on April 22d, yet, as the hearing before the circuit judge did not take place until the 22d of May, when the ordinance was in full force and effect, we think the circuit judge was fully justified in refusing the writ under the rule laid down in the following cases: Preferred Tontine Mercantile Co. v. Secretary of State, 133 Mich. 395 (95 N. W. 417), where it was held that mandamus would not issue to compel the secretary of State to file the articles of association of a foreign company, where, subsequent to the filing of the petition, a statute had become operative under which the rights claimed by relator had been abrogated. See, also, Rose v. Ann Arbor Common Council, 134 Mich. 102 (95 N. W. 1133), where the legislature had prohibited the sale of intoxicating liquors within a certain portion of the city, after relator’s petition to the common council for the approval of the bond for the sale of liquors within such district, mandamus to compel the council to approve such bond was denied; the court saying: “There is therefore no occasion to determine what relator’s rights were under the former law ” — citing the case last above referred to.

This court has repeatedly held that the writ of mandamus is a discretionary writ, and that it must clearly appear that the party to whom it is directed has the power to execute it, otherwise it will not be issued. See Turnbull v. Giddings, 95 Mich. 314 (54 N. W. 887, 19 L. R. A. 853), and cases cited. The court should not be required to issue a mandamus where its effect would be of no avail or idle. In other words, the court should not be asked to do an idle thing. There was no time after the hearing in which saloons could be legally conducted in the village. In our opinion this case is controlled by the doctrine of Lake v. Village of Cedar Springs, supra.

The order and judgment of the circuit court in refusing to grant the writ is affirmed.

Ostrander, O. J., and Bird, Hooker, and Moore, JJ., concurred.


author: Blair, J.

text:
    PEOPLE v. FRITCH.
    Criminal Law —Appeal and Error — Supersedeas — Stay oe Sentence — Statutes.
    Respondent, convicted of manslaughter, having taken out a writ of errror as of course, is not entitled, after the return thereto on petition, to a stay of execution of sentence and admission to bail under 3 Comp. Laws, § 10490, providing that writs of error in criminal oases shall not stay proceedings unless allowed by one of the justices of the Supreme Court or by a circuit judge with an express order for such stay.
    Petition by George A. Fritch for a stay of execution of sentence and admission to bail pending an appeal from a conviction on a charge of manslaughter.
    Submitted June 27, 1911.
    (Calendar No. 23,934.)
    Denied July 5, 1911.

      Lodge & Brown, for petitioner.
   Blair, J.

This is a petition, filed June 24, 1911, for stay of execution of sentence and admission to bail. Prior proceedings to obtain stay of execution of sentence will be found reported in 161 Mich. 111 (125 N. W. 785). After the denial of his application, for the reasons stated in the opinion, respondent proceeded with the settlement of his bill of exceptions, which was finally settled and signed April 26, 1911. On the 28th day of February, 1911, respondent caused a writ of error to be issued, as of course, out of this court, returnable on the 8th day of April, 1911. The time to make return to the writ of error was duly extended by orders of this court to May 1st, and June 1st, respectively.

The return to the writ of error has been duly made and filed in this court, as well as the printed record, and there is no reason apparent at this time why the case should not be disposed of at the October term of this court. Section 10490, 3 Comp. Laws, provides:

“Writs of error upon judgments in all other criminal cases shall issue of course, but they shall not stay or delay the execution of the judgment or sentence, unless they shall be allowed by one of the justices of the Supreme Court, or a circuit judge, with an express order thereon for a stay of proceedings on the judgment or sentence.”

As appears from the foregoing statement, the writ of error has been issued as of course and return made thereon. There is no petition for an order allowing a writ of error “ with an express order thereon,” etc.; nor is there any occasion for such an allowance.

It follows that the application must be denied, and it is so ordered.

Ostrander, C. J., and Bird, Hooker, and Stone, JJ., concurred.


author: Ostrander, C. J. Hooker, J.

text:
    SHELDON, KAMM & CO. v. BREMER.
    1. Mechanics’ Liens — Husband and Wife — Homestead—Necessity of Wife’s Signature to Contract.
    A subcontractor cannot enforce a lien against property which was held, at the time he began furnishing materials, in the name of husband and wife by the entireties and intended to be occupied as a homestead, notwithstanding that, at the date of executing the contract for constructing the house, title stood in the name of the wife only. Hooker, Bird, and Moore, JJ., dissenting.
    2. Same.
    It is only when land is owned by husband and wife by the entireties, or when the land is held and occupied as a homestead, that a contract for a building on it is required to be in writing, signed by both, in order that a mechanics' lien may attach; in every other case the contract may be written or unwritten, express or implied. 3 Comp. Laws, §§ 10710-10712.
    3. Same — Title.
    If the person contracting for the erection of the building has no title to the land, a lien attaches to the building alone.
    4. Same.
    And in case the land was held by the entireties at the date the original contractor began furnishing materials or labor, the subcontractor could not have a lien without the signature of the wife to the contract.
    6. Same.
    Mechanics’ liens rest in strict right, not upon mere equities.
    Error to Bay; Collins, J.
    Submitted January 3, 1911.
    (Docket No. 6.)
    Decided July 5, 1911.
    Bill by Sheldon, Eamm & Company against Frederick J. Bremer and others to enforce a mechanic’s lien. From a decree dismissing the bill as to all defendants except said Bremer, the complainant appeals.
    Affirmed.

      Stoddard & McMillan, for appellant.

      Gillett & Glarlc, for appellees.
   Ostrander, C. J.

It is only when land is owned by husband and wife, by entireties, or when the land is held and occupied as a homestead, that a contract for a building thereon is required to be in writing, and signed by both the husband and wife, in order that a lien may attach to either land or building. In every other case the contract .for the improvement may be written or unwritten, express or implied. If made with the owner, part owner, or lessee, of the land, a lien is created upon the improvement and also upon the entire interest of such owner, part owner, or lessee in and to the land, “at the time work was commenced or materials were begun to be furnished by the contractor under the original contract, or by the subcontractor who furnishes or is furnished with any labor or material in the performance or execution of such subcontract and also to the extent of any subsequent acquired interest of any such owner, part owner or lessee.” 3 Comp. Laws, §§ 10710, 10711. If the person contracting for the erection of a building has no legal title to the land, a lien attaches to the building or structure erected. 3 Comp. Laws, § 10712. So that a person furnishing materials or labor for any structure erected upon land may have his lien against either the structure alone, or against both the structure and an interest in the land, in all cases, without regard to the original contract, except in cases where the land is owned by entireties, or is held and occupied as a homestead.

If it is so owned, or so held and occupied, he may have a lien against neither land nor building, unless the contract is signed by the husband and the wife. These provisions of the law seem to be plain. Applied in this case, they deny complainant any relief. Complainant is a subcontractor. When it began to furnish material, the title to the land was held by Galbraith and his wife, by entire-ties. The original contract was made by Galbraith, who at the time had no title to the land. Assuming, which I am not willing to do, that the subcontractor may rely upon the state of the title at the time the original contractor began to furnish material or labor, complainant is not aided, because at that time the land was owned by entire-ties, and the improvement was begun upon land thus owned. If the court is to continue to hold, as it has heretofore held, that a mechanic’s lien must rest in strict right, and not upon mere equities, complainant is entitled to no relief.

The decree dismissing the bill of complaint must be affirmed, with costs.

Me Alva y, Brooke, Blair, and Stone, JJ., concurred with Ostrander, C. J.

Hooker, J.

(dissenting). Mrs. Galbraith became the legal owner of a city lot by virtue of a deed, dated May 20, 1907. Her husband paid no part of the consideration; the lot being presented to her from her mother. On July 22, 1908, Mr. Galbraith made a written contract with Bremer for the building of a dwelling upon this lot. Mrs. Galbraith did not sign this''contract. On July 27, 1908, Bremer ordered and complainant delivered some rough lumber at the premises. Bremer paid for it, and it was used in the building of a toolhouse upon the curb line, preliminary to the erection of the building contracted for. We understand that none of it was used in or upon the dwelling.' It was not included in the claim of lien filed by the complainant, which states that “ the furnishing of said materials was begun upon the 24th day of August, A. D. 1908.” It appears in the record that on August 4, 1908, Bremer submitted the specifications to complainant for a bid on the material requisite for the construction of the house, and the bid was delivered on August 11th. We do not find testimony of the exact date of acceptance of the bid, but it was evidently before the first delivery of such material under the contract, which occurred on August 24th.

It seems to have been the intention of the Galbraiths to hold title to the property by the entireties, and on the 25th day of July Mrs. Galbraith deeded the lot to their counsel, Mr. Beckwith, and he immediately deeded the premises to the Galbraiths, husband and wife, by entireties, and they have so held them since. There is testimony from them that it had been their expectation that the title would be so conveyed to them in the first instance, and, upon discovery that the deed ran to Mrs. Galbraith only, they employed Mr. Beckwith to make the necessary papers to correct the mistake some months before the contract with Bremer was made, but the papers were actually signed later. They expected to usé the lot for a home, and Mrs. Galbraith knew and approved of the letting of the contract to Bremer by Mr. Galbraith.

The deeds of July 25th were recorded on July 31st, which, as already indicated, was some 11 or more days before the complainant’s bid was accepted by Bremer. The record shows, also, that the Galbraiths placed two mortgages upon the property; the first, dated August 8, 1908, for $2,000, to the Savings & Loan Association, and the second, dated January 5, 1909, for $3,000. Both mortgagees are parties defendant. The time when work upon the excavation for the dwelling began is perhaps uncertain, but it is evident that it was not before August, if it was earlier than September 1st.

The contract was abandoned by Mr. Bremer before the building was completed, for the alleged reason that he was unable to obtain payments for his work as fast as he desired, and Galbraith was obliged to finish the building, and, aside from complainant’s alleged lien, Galbraith has paid out more than the contract price for the construction and completion of the house. It is true, however, that Bremer was in arrears to the complainant some $1,300, for which it would doubtless have a lien, did Galbraith alone have title to the premises. It should be said that nothing indicates any intentional fraud on the part of Galbraith or his wife in making or taking the Beckwith deeds, or in making the contract. Apparently Galbraith is solvent and able to pay his obligations, and there is nothing to this case but the question of complainant’s legal right to enforce a lien against this dwelling.

The learned circuit judge was of the opinion that no lien attached, and dismissed the bill as to all defendants, except Bremer, against whom he granted a decree for $1,402.35 and costs. The complainant appealed. No brief is filed on behalf of defendants other than the Galbraiths.

Bremer had a contract with Galbraith to construct a building on land to which he had no title, legal or equitable, unless we can say that he had contract rights to an interest by entireties, and we cannot say that there was any evidence justifying such an inference. The land belonged to the wife, and she did not sign the contract. A lien may have been acquired upon the new building while the land was so held; the case having been one where a contract was made by a person who had no title whatever to the premises. Apparently 3 Comp. Laws, § 10712, would be applicable:

"Any person furnishing services or materials for the erection of a new building or structure upon land to which the person contracting for such erection has no legal title, shall have a lien therefor upon such [building] buildings or structure; and the forfeiture or surrender of any title or claim of title held by such contracting person to such land shall not defeat the lien upon such building or structure of such person furnishing services or materials as aforesaid. In case the property covered by the lien is held by the vendee in a land contract, and he surrenders or forfeits his rights thereunder, the person or persons holding such liens may be subrogated to the rights of such vendee as his rights existed immediately before such surrender or forfeiture, by performing the covenants contained in such contract within thirty days after such forfeiture or surrender is made.”

The case of Holliday v. Mathewson, 146 Mich. 336 (109 N. W. 669), was such a case, and it is claimed that the rule should be the same in this case, even had the land been owned by entireties when Bremer’s contract was made. It may be true that such a construction of the statute would have been a not unreasonable one, but it has not been so construed. On the contrary, such cases have been made to turn upon a strict construction of section 10711. The case of McMillan v. Schneider, 147 Mich. 261 (110 N. W. 961), is not conclusive of the question, because the exact question appears not to have been in the case, and this opinion indicates that fact. In Bauer v. Long, 147 Mich. 351 (110 N. W. 1059, 118 Am. St. Rep. 552), the point was expressly decided, and the Holliday Case distinguished. Frolich v. Blackstock, 155 Mich. 604 (119 N. W. 906), is a similar case to Bauer v. Long, and it has been followed by the recent case of Restrick Lumber Co. v. Wyrembolski, 164 Mich. 71 (128 N. W. 1083), and it must be said that these cases settle the rule that a wife, where land is held by entireties, cannot be bound by a husband’s contract for the erection of a house thereon, and that a lien will not attach, either to the land or new building, in such a case.

Counsel, however, ask us to distinguish the present case from those last cited, upon the ground that at the time the contract was made with Bremer the land was not held by the entireties, but. by the wife alone, and Galbraith had no legal title to it whatever; and they urge that therefore the lien should be enforced against the building under the rule of the Holliday Case. It is doubtless true that, if a valid lien attached to the house prior to the deed to Beckwith, it was not cut off by the change in title, especially as there is no question of a bona fide purchaser involved.

The difficulty arises over the question, Had such lien accrued ? We think it probable that neither Bremer nor the complainant took the trouble before contracting to make an investigation of the title. That is unimportant, however. It is not difficult to see that, if the former had done so, and found title in Mrs. Galbraith, he would be unlikely to think it necessary to examine it again before delivering material under his contract, and we see a hardship in denying relief to him, after he should have gone on in ignorance of the contract and constructed the building, upon the ground that there was a transfer before any delivery was made, and that therefore the lien could not attach. This is a peculiar case. The right to a lien accrued, if ever, upon the delivery upon the premises, under the contract, according to the general rule, or at any rate at the time work was commenced upon the building. See 27 Cyc. pp. 215, 218, and noté.

The contract with Bremer was made by Galbraith when he had no title whatever. Had no change been made in the title until the material was furnished under the contract, it is obvious that no lien could have been enforced against the land. It is as clear that it could have been enforced against the building under the rule followed in the case of Holliday v. Mathewson, supra. The only change that has been made in the title has been a transfer of an interest from the wife to the husband; the result being that they have a joint interest, with mutual right of survivorship, making them owners by entireties. There is no question of bona jtides in the case. Not only was no consideration paid by the husband, but both husband and wife were fully advised of the contract; neither informed Bremer of the change in title; both knew and approved of the furnishing of the material and its use in the house, which they permitted to be erected. On the other hand, it is clear that complainant had no knowledge of the change in title. When we consider that the lien would attach to the house, if the wife had not made the deed to Beckwith, and that it would have attached to both land and house, had the husband either owned the full title when the contract was made, or acquired it afterwards by deed from the wife, or any one else, it would seem to be a great injustice to say that an arrangement between the husband and wife, by which she changes the title to one by the entireties, can be permitted to defeat a lien on behalf of an unsuspecting contractor, who furnishes material in ignorance of such change. By this change the house which when completed would be subject to the lien, although the wife should hold the entire title, would be released altogether, although the wife should continue to own an interest, and notwithstanding the fact that the husband should own the remaining interest.

The situation may be succinctly stated thus: The wife owned this land. Had she retained her title, a valid lien would have existed upon the house. Had she conveyed the title to the husband, the lien would have been good as to both land and house. Can she by conveying to him, creating and reserving an estate by entireties (which is practically what she did), exempt both house and land as to both of them ? Had this been done with the intent to overreach the contractor, would it not be a fraud that would fail of its purpose, and, although lacking in moral turpitude, can it be permitted to accomplish such a wrong ?

The transfer of the title to a bona fide purchaser before performance of a contract will probably preclude a lien, which has not already attached, by reason of the furnishing of some of the labor or material under the contract, and to the extent that it shall be so furnished after the transfer, if done in ignorance of such transfer, but this is not such a case. The transfer is not only not based on a consideration, proceeding from one buying in ignorance of the contract, but it is a conveyance of an interest to the maker of the contract, whose duty it was to protect the materialmen. Had complainant’s contract been made before the record of the Beckwith deeds, we should have no hesitancy in saying that these deeds would not, under the proofs in this case, deprive complainant of its right of lien.

Counsel truly say that the complainant might have ascertained from the record at the time he made his bid and contract that the land was held by entireties, and was not subject to a lien for work or materials to be furnished, and therefore no lien could attach to the building. We do not like to apply so strict a rule in a case like this, where the contractor himself might have had a lien for these identical materials, had he furnished them in ignorance of the change, inasmuch as his contract antedated the change in title. To do so would make it necessary for every laborer who should be employed to work on the building to investigate the records before going to work. Whatever we might have to hold, were this title held by a bona fide purchaser for value, we think that in this case it should be held that the erection of the building, with the approval of both husband and wife, under a contract made prior to the transfer, under the circumstances of this case, entitles those who in good faith furnished materials for it, to protection under such contract. In short, this deed has worked a hardship upon the complainant, if its lien is to be denied, which, under the peculiar circumstances of the case, justifies us in saying that the transfer of an interest to the husband relieves neither of them from complainant’s right of lien upon the building.

The decree should be reversed, and a decree in favor of the complainant, as against the building, should be entered for the sum of $874.84, with interest at 5 per cent, from May 5, 1909, and costs of both courts, subject to modification as to amount on the settlement of the decree, or by remanding the record, if found necessary.

Bird and Moore, JJ., concurred with Hooker, J.


author: Moore, J.

text:
    PEOPLE v. PARKER.
    1. Criminal Law — Rape —Evidence—Hypothetical Questions Statutory Assault — Infant.
    It was error, in a prosecution for statutory rape committed on a girl of ten years of age, where it had appeared that she had previously had sexual relations with another man on numerous occasions and with a young boy, to permit the prosecuting attorney to ask an expert witness whether one or two acts of intercourse by the first party would account for her condition at the time witness made a physical examination.
    2. Same — Defense—Motive of Prosecution.
    Where the defense was that the charge brought against respondent was trumped up by the second wife of the girl’s father, who had been divorced from her mother, had remarried and was seeking to secure the custody of the child and avoid the payment of further alimony for her maintenance, respondent’s attorney should have been permitted to examine the divorced wife relative to her alleged understanding with the father that after five years the alimony should be changed in amount.
    3. Evidence — Reputation—Rape.
    Evidence offered by respondent to show his good reputation was admissible as substantive proof of his innocence, and its effect ought not to have been restricted by the charge of the court to his conduct in sexual matters.
    Error to Jackson; Parkinson, J.
    Submitted April 20, 1911.
    (Docket No. 128.)
    Decided July 5, 1911.
    James Parker was convicted of assault with intent to rape committed upon a female under sixteen years of age.
    Eeversed.

      John F. Henigan (L. B. Gardner, of counsel), for appellant.

      Nathan E. Bailey, Prosecuting Attorney, and M. Grove Hatch, Assistant Prosecuting Attorney, for the people.
   Moore, J.

The above respondent was tried on an information containing three counts. The first count charged that the respondent on the 30th day of November, 1909, in the city of Jackson, Mich., with force and arms in and upon one Dovetta Champion, a female child under the age of 16 years, to wit, of the age of 10 years, feloniously did make assault, and her, the said Dovetta Champion, then and there feloniously and unlawfully did carnally know and abuse. The second count charged that the respondent, at the time and place above mentioned, upon the said Dovetta Champion did make an assault with intent unlawfully and carnally to know and abuse her. The third count charged said respondent with having taken indecent liberties without committing or intending to commit the crime of rape upon the said Dovetta Champion at the time and place above mentioned. Before the case was submitted to the jury, the third count was withdrawn, and the case was submitted to the jury upon the first and second counts. After the jury had been out all night and had called for further instructions, the respondent was convicted upon the second count, with a recommendation of mercy to the court. The case is brought here by writ of error.

Dovetta Champion, the complaining witness, was born in the city of Jackson, Mich., on December 26, 1899. Her father’s name is Charles Champion, and her mother’s name was Anna D. A. Champion, who was, at the time of the trial, the wife of the respondent Parker. Mr. Champion and his wife were divorced January 20, 1905. Mr. Champion, the father of the complaining witness, immediately remarried. Mrs. Champion, the mother of the complaining witness, was married June T, 1905, to Edwin Mayo, and lived with him about two years, and in March, 1908, obtained a divorce from him. During this* time, Dovetta Champion, the complaining witness, lived with her mother and Mayo. In April, 1908, Dovetta’s mother married respondent, James Parker, and Dovetta and her mother and Parker, the respondent, lived together in the city of Jackson until the time of Parker’s arrest, which was in March, 1910. The particular act for which the respondent was placed on trial was alleged to have occurred on or about November 30, 1909. It is the claim that in March, 1910, Dovetta had a conversation with her stepmother, Nell Champion, in which her stepmother asked her if Parker ever hurt her or whatever he did to her, and Dovetta said, “I just happened to tell her and she made me tell more,” and thereafter made a complete disclosure of her relations with the respondent.

The defense was that the charge against respondent was a trumped up one made at the instigation of Mr. Champion and his second wife, for the purpose of getting the custody of the child under the order that it was expected the court would make, on the petition that had been filed by Mrs. Parker, for a further allowance of alimony, the first five years having expired, and that the motive of Champion’s second wife in getting the little girl to make these charges against Parker, was to save Champion, her husband, from having to pay the $12 per month, or whatever the court might order him to pay for the support of the child.

The assignments of error may be arranged in three groups:

(1) Errors claimed in the admission and rejection of testimony.
(2) Exceptions to the charge of the court, and his refusal to give respondent’s request to charge.
(3) Exceptions to the court’s overruling respondent’s motion for a new trial.

Under this head there are 27 errors assigned. The sixth assignment is based on the court’s permitting the prosecutor to put the hypothetical question to Dr. Gibson, an expert called by the prosecution, which question was as follows:

"Q. Assuming that there had been one or two acts of intercourse three or four years ago by a man with this little girl, would those acts account for the condition you found her in March 30th ?”

To which objection and exception was duly taken. When this question was answered, the testimony of the complaining witness had shown that she had had numerous acts of intercourse with a boy and with her stepfather Mayo. We do not think this testimony should have been overlooked in framing the hypothetical question.

Complaint is made of the restriction put upon the examination of the mother of the complaining witness in relation to the understanding about the payment of alimony after the five years from the date of the decree of divorce between her and Mr. Champion. In view of the character of the defense, we think this testimony should have been permitted.

The court declined to give respondent’s request as to the effect to be given to testimony tending to show good character, except as given in the general charge as follows :

“ There has been given some evidence of good character on the part of respondent. That is always proper evidence for a man accused of crime to introduce, to show what his neighbors — those acquainted with him, with whom he associated — think about him in that regard, and is to be considered. Ordinarily, evidence of good character introduced by the respondent should relate to good character in respect to the thing which is charged, and in this case it would relate to his reputation as being a man of regular habits or proper habits in respect to sexual matters. It is possible perhaps for a person to be irregular in those matters or do things in that regard to which he would not gain a reputation. But still the fact a man hasn’t any reputation for doing wrong in that regard is something, and should be considered by the jury in connection with all the other evidence in the case. * * * Consider that evidence as to good character with all the other evidence in the case, and if it raises a reasonable doubt as to the guilt of the accused, or if you have, after considering everything, still a reasonable doubt as to his guilt, of course, as I think I have before stated, the respondent is entitled to the benefit of that doubt where it exists, and should be acquitted.”

In the case at bar there was the testimony of the complaining witness, a mere child, as to the occurrences between her and the accused, on the one side, and the denial of the accused, a man about 29 years of age, on the other side. The length of time the jury was out indicated that some of the jurors were in doubt, for a time at least, as to the guilt of respondent. The record contains the testimony of many witnesses who knew him well as to his good reputation.

In People v. Garbutt, 17 Mich., at page 26 (97 Am. Dec. 162), the following language may be found:

“Good character is an important fact with every man; and never more so than when he is put on trial charged with an offense which is rendered improbable in the last degree by a uniform course of life wholly inconsistent with any such crime. There are cases where it becomes a man’s sole dependence, and yet may prove sufficient to outweigh evidence of the most positive character. The most clear and convincing cases are sometimes satisfactorily rebutted by it, and a life of unblemished integrity becomes a complete shield of protection against the most skillful web of suspicion and falsehood which conspirators have been able to weave. Good character may not only raise a doubt of guilt which would not otherwise exist, but it may bring conviction of innocence. In every criminal trial it is a fact which the defendant is at liberty to put in evidence; and, being in, the jury have a right to give it such weight as they think it entitled to. Chief Justice Shaw has pointed out in the Webster Case how important it is in the case of some minor offenses, and he adds that, * even with regard to the higher crimes, testimony of good character, though of less avail, is competent evidence to the jury, and a species of evidence which the accused has a right to offer. But it behooves one charged with an atrocious crime, like this of murder, to prove a high character, and, by strong evidence, to make it counterbalance a strong amount of proof on the part of the prosecution.’ Commonwealth v. Webster, 5 Cush. [Mass.] 295 [52 Am. Dec. 711]. In some cases, it may have even this great effect.”

In People v. Mead, 50 Mich. 228 (15 N. W. 95), language of a similar character was offered. See Hamilton v. People, 29 Mich. 195.

In People v. Jassino, 100 Mich. 536 (59 N. W. 230), it was said, evidence of good character is admissible, not only in a case where doubt exists, but may be offered for the purpose of creating a doubt. See People v. Laird, 102 Mich. 135 (60 N. W. 457).

The language of Justice Long, in People v. Van Dam, 107 Mich. 425 (65 N. W. 277), is quite in point here:

“Proof of good character is to have greater weight than suggested by this charge. It is applicable in all cases where crime is charged. It is not to be limited to cases where there is an even conflict as to whether the respondent is or is not guilty.”

Complaint is made of the following:

“You have the right to believe a man accused of crime when he testifies as against other sworn testimony, if you think that his testimony deserves such respect as that. It is possible for a man accused of crime to be so frank, so clear in his statements, and his manner so fair and just, that the jury will believe him.”

This language should be read in connection with what precedes and follows it, and when so read we doubt if the jury was misled.

Complaint is made because the judge did not charge the jury in relation to what constituted assault and battery, and that it was included in the greater crime.

The respondent was defended by able counsel. They did not ask the judge to charge upon that subject. The respondent denied that he had committed any offense of any sort. In view of this situation and the further fact that a new trial must be granted, for the reasons before stated, we will not express an opinion as to whether this ■ omission was error.

The conclusions we have already expressed make it unnecessary to consider the assignments of error in this group.

The judgment is reversed, and a new trial ordered.

McAlvay, Brooke, Blair, and Stone, JJ., concurred.


author: Per Curiam.

text:
    STEELE v. BLISS.
    Limitation op Actions — Execution—Stay by Injunction.
    An injunction restraining the sale of real property levied upon interrupts the running of the statute of limitations relative to execution liens on real estate. 3 Comp. Laws, § 9333.
    Bill by Wilbur W. Steele against Allaseba M. Bliss and others to set aside certain judgments and to restrain the sale of lands on execution levy. On motion of complainants to set aside an order modifying a preliminary injunction and permitting defendants to sell lands under an execution levy.
    Submitted August 14, 1911.
    (Calendar No. 24,204.)
    Motion granted September 9, 1911.

      Alex J. Groesbeck, for complainant.

      John A. McKay and William J. Gray {Gray & Gray and L. T. Durand, of counsel), for defendants.
   Per Curiam.

In the above-entitled cause, now pending in this court, two motions have been made: The first, by defendants, asking for a modification of the injunction in the case to allow them to proceed to advertise and sell certain real estate situated in Wayne county under a certain levy made upon execution, which was granted. The second motion asks that the order granted upon the first motion be vacated and set aside. The first motion presented a case of emergency and was granted to preserve to defendants their rights under an execution levy, which, by the running of the statute of limitations relative to execution liens on real estate, section 9233, 3 Comp. Laws, were represented would be lost upon the theory that the injunction in the case did not interrupt the running of the statute. The opposite view is taken by the movers in the second motion, which is relied upon as one of the grounds of said motion. The merits of the .controversy are not involved. The only question necessary to discuss and determine is the construction and application of this statute.

Different phases of the litigation out of which this suit arises have been before the court some seven or more times, and to make a statement of its history would be of no benefit at this time. Suffice it to say that an execution upon a judgment was issued and levied, and the importance of the determination of these motions is apparent when it is stated that the rights under this execution lien will be decided. The material portion of the statute under consideration is as follows:

“* * * And all liens by execution op real estate hereafter to be made shall become and be void at and after the expiration of five years from the making of such levy, unless such real estate be sooner sold thereon.”

The question as to the construction and application of this statute of limitations under such a state of facts is one of first instance in this court, and is of more than ordinary importance. The statute is not a part of the general statute of limitations of actions relating to real property which has been in force since the Revised Statutes of 1846. It was enacted in 1889, and, except for a provision relative to execution liens in force at that time, is all included in the quotation above given.

Upon the question of the effect of injunctions upon the running of statutes of limitations, the authorities are not in harmony. In 1 High on Injunctions, par. 87, an early English case is cited as laying down the proposition that, if a party were stayed by injunction from prosecuting his suit, the court would not permit him to be prejudiced by the statute. This appears to be the fundamental principle recognized by all of the authorities which hold that the running of a statute of limitations is interrupted by an injunction. This has been the holding of the supreme court of Minnesota. In a case exactly in point that court said:

“At common law, the right to sue out an execution in a personal action was limited to a year and a day from the entry of judgment. * * * This limitation of the common law was as inflexible and as positive as that of our statute; yet it was well established at common law that when the plaintiff had judgment with stay of execution, or execution was stayed by injunction, the plaintiff might sue out an execution within one year after the stay terminated, or the injunction was dissolved. * * * It would be unreasonable and inconsistent for the law to present to a party, in one hand, a command to do an act within a certain time under the penalty of losing his rights, and, with the other hand, restrain him from doing the act. For this reason, the time during which the plaintiff was thus prevented by the law from issuing execution was at common law excluded from the year allowed for that purpose.” Wakefield v. Brown, 38 Minn. 363 (37 N. W. 790, 8 Am. St. Rep. 671).

Where courts have held that the running of the statute is interrupted by injunction, it has generally been upon the ground that the statute was not intended to bar a remedy because it was not exercised within the limited time if such a state of affairs existed as rendered it impossible for the party to act within that time. 19 Am. & Eng. Enc. Law (2d Ed.), pp. 215, 216. This doctrine has been accepted by the Supreme Court of the United States. In United States v. Wiley, 11 Wall. (U. S.) 513, Mr. Justice Strong, speaking for the court, said:

“But it is the loss of the ability to sue, rather than the loss of the right, that stops the running of the statute. The inability may arise from a suspension of right, or from the closing of the courts, but whatever the original cause, the proximate and operative reason is that the claimant is deprived of the power to institute his suit. Statutes of limitations are indeed statutes of repose. They are enacted upon the presumption that one having a well-founded claim will not delay enforcing it beyond a reasonable time, if he has the power to sue. * * * But the basis of the presumption is gone whenever the ability to resort to the courts has been taken away. In such a case the creditor has not the time within which to bring his suit that the statute contemplated he should have.”

In Braun v. Sauerwein, 10 Wall. 223, Mr. Justice Strong, speaking for the court, said:

“It seems, therefore, to be established, that the running of a statute of limitation may be suspended by causes not mentioned in the statute itself.”

In the latest Federal case examined — Amy v. Watertown, 130 U. S. 320 (9 Sup. Ct. 537) — the above is quoted and affirmed in an opinion written by Mr. Justice Bradley, of which the court said:

“ There is one class of cases which is excluded from the .operation of the statute by act of law itself, of which the case in which Mr. Justice Strong made the remark referred to is one. This class embraces those cases in which no action can be brought at all, either for want of parties capable of suing, or because the lawprohibits the bringing of an action. In such cases the general law operates as a qualification, or tacit condition of the particular statute. * * * Besides this general exception created by act of law, it is difficult to find any other ground or cause for suspending the operation of the statute not specified in the act itself.”

The same doctrine has been indorsed in several other States. The weight of authority holds that the running of the statute is interrupted by an injunction. A few of the States hold to the contrary. In the instant case the parties are by process of law prohibited from acting, and it is clearly within the class of cases pointed out in the authorities cited.

Our attention is called to section 9754, 3 Comp. Laws, relative to suits at law in cases affected by proceedings in chancery, as to the running of the statute of limitations, and also the case of Sweet v. Haldane, 68 Mich. 639 (36 N. W. 698), construing it, as applicable to the case under consideration. As to this proposition, we think it necessary only to say that this section and decision are of force as indicating the policy of the legislature and the court to preserve to individuals rights which for the time being they may be disabled from exercising by a “paramount power ” without fault on their part. Our construction and determination, based upon both reason and authority, is that the injunction operated as an interruption of the running of this statute of limitations in question, and will so operate as long as in force. The motion granted modifying the injunction was therefore unnecessary, and the same, for the reasons given, is vacated and set aside.


author:
McAlvay, J.
      Ostrander, C. J.

text:
    BAKER v. CITY OF DETROIT.
    1. Municipal Corporations — Sidewalks—Obstructions—Negligence-Trial.
    In reviewing a verdict and judgment for defendant, a municipal corporation, charged with negligence in maintaining in a sidewalk a water shut-off box on which plaintiff tripped, the court did not commit prejudicial error by a charge to the jury, that unless an obstruction existed two inches in height the sidewalk was reasonably safe, if it did exist two inches it was a question of fact, but if two inches or less, there was no negligence on the part of the city; it being evident from the context that the court intended to say if the obstruction exceeded two inches the question was for the jury.
    2. Same.
    The court was not in error in applying the rule that an inequality of two inches or less in a sidewalk does not render it dangerous for public travel.
    Ostrander, O. J., and Bird and Moore, JJ., dissenting.
    3. Appeal and Error — Saving Questions for Review.
    The Supreme Court cannot consider an objection not brought to the attention of the trial court or based on an exception.
    Error to Wayne; Murfin, J.
    Submitted January 16, 1911.
    (Docket No. 90.)
    Decided September 29, 1911.
    Case by Rachel Baker against the city of Detroit for personal injuries. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Frederic T. Harward, for appellant.

      Edmund Atkinson (P. J. M. Hally, of counsel), for appellee.
   McAlvay, J.

This suit was brought by plaintiff against defendant to recover damages by reason of personal injuries claimed to have been caused by the negligence of defendant. The facts are that plaintiff, who resided at 121 Alfred street, at the corner of Brush street, in Detroit, on January 26,1909, in company with another woman, was walking along the sidewalk on the north side of Alfred street, going east toward Brush street, to take a Beaubien street car. It was between 7 and 8 o’clock in the evening, and dark. There was a light on the corner of Alfred and Brush streets. Plaintiff was walking on the inside of the walk and claims that she caught her foot under an obstruction in the walk which caused her to fall heavily upon her hand, injuring it and her arm severely. She did not know what it was she tripped on. Her fall occurred between Nos. 129 and 135 Alfred street. Her brother, who lived near, was told that she was hurt and went to her house to see her, and then went out to see what it was she had fallen over. The only thing he discovered in the sidewalk was an iron water shut-off, being the usual iron circular box with an iron cover used hy the defendant over a water cut-off on the city pipes. The case was submitted to the jury upon the evidence introduced by both parties, under the charge of the court, and a verdict of no cause of action was returned in favor of defendant. Plaintiff made a motion for a new trial which was denied, and a judgment was later entered upon the verdict. Errors are assigned by plaintiff upon certain portions of the charge of the court, the admission of certain evidence, and the refusal to grant a new trial. The disputed question upon the trial was whether, by reason of the water cut-off, which plaintiff claimed caught her foot and caused her fall, this sidewalk was not in a condition of repair reasonably safe for public travel.

Error is assigned to the following portion of the charge of the court in submitting this question to the jury:

“ In this State our Supreme Court in construing this statute in more than one case has held that unless the obstruction complained of exists two inches in height or depression (in this case it is height), that unless it exists to that amount, the sidewalk is in a condition of repair reasonably safe and fit for travel. If it does exist two inches, then it is a question for the jury, in the light of all the circumstances, to ascertain and determine whether or not the sidewalk is in a condition of repair reasonably safe and fit for travel. But if the obstruction is two inches or less then there is no dereliction of duty on the part of the city.”

There is no ambiguity in the last sentence of the paragraph quoted. It is the conclusion of the statement evidently to make clear what preceded; the court saying:

“But, if the obstruction is two inches or less, then there is no dereliction of duty.”

We know what should precede it in order to make sense, and upon examination we find that, if one word in the first clause of the sentence next preceding the one .last quoted is changed, all ambiguity in this charge disappears. Using exceed instead of exist, the sentence reads:

“ If it does exceed two inches, then it is a question for the jury,” etc.

It is evident from the context that this is what the court intended to say. Whether the mistake was his or that of the stenographer in transcribing is immaterial. The meaning of the paragraph as printed is not obscure. The confusion in it claimed by appellant evidently was not apparent to the jury, as no explanation of its meaning was asked. The charge as given will not warrant the construction claimed.

Appellant further complains that the court was in error in charging the jury that they should be governed by fixed measurements in determining the liability of defendant. In Northrup v. City of Pontiac, 159 Mich. 250 (123 N. W. 1107), where many cases are cited, the court said:

‘ ‘A careful examination of all of them leads to the conclusion that the court has held,’as a matter of law, that an inequality of two inches or less in a sidewalk does not render it not reasonably safe for public travel.”

The trial court was following the words above quoted used by this court. That case was where plaintiff caught his toe under the flange of a grating which projected above the sidewalk If inches, and is controlling in the instant case. We find no error in the charge.

Appellant contends that the court erred in permitting the plumber and his helper to describe the condition of this water box eight weeks after the accident. No objection was made to this testimony at the time, nor was any exception taken. This court cannot consider an objection not brought to the attention of the trial court.

The judgment of the circuit court is affirmed.

Blair, Brooke, and Stone, JJ., concurred with Mc-Alvay, J.

Ostrander, C. J.

(dissenting). I am unable to distinguish this case and Northrup v. City of Pontiac, 159 Mich. 250 (123 N. W. 1107). But I am of opinion that the nature and character of an obstruction, whatever its height, may be considered in determining whether a way is in a condition making it reasonably safe for public travel. I think the obstruction in this case was of such a character that the negligence of the defendant became a question for the jury.

Bird and Moore, JJ., concurred with Ostrander, C. J.


author: McAlvay, J.

text:
      In re CONNERY’S ESTATE. CONNERY v. CONNERY.
    1. Wills — Attestation — Witnesses — Effect of Attestation Clause.
    If the attestation clause affords any presumption of the facts therein stated, it is overcome by the testimony of a subscribing witness to a will that he did not read or know the contents of the clause, that testatrix was not in his presence when he signed it, and that he did not remember seeing her sign the instrument.
    2. Same. ’
    Where one subscribing witness contradicted the other relative to the facts stated in the attestation clause, it was for the jury to determine whether or not the will was properly executed.
    3. Same — Impeachment.
    The court erred in charging the jury that it made no difference whether the will was executed on a different day than the date it bore, which proponent testified in probate court was the date of its execution, although on appeal he stated that it was executed on the morning of the following day; since the contradictory testimony concerning the same might be considered by the jury as affecting the credibility of proponent.
    Error to Saginaw; Gf-age, J.
    Submitted June 27,1910..
    ( Docket No. 152.)
    Decided September 29, 1911.
    James A. Connery presented for probate an instrument purporting to be the will of Christina Sutherland Connery, deceased. From an order admitting the same to probate, William S. Connery, contestant, appealed to the circuit court, where the order was affirmed. Contestant brings error.
    Reversed.

      Fred L. Eaton (J. H. Davitt, of counsel), for appellant.

      Frank E. Emerick (Emmet L. Beach,, of counsel), for appellee.
   McAlvay, J.

This case is brought to this court by the contestant of the will of deceased to review a judgment of the circuit court for Saginaw county, duly entered, upon a verdict of a jury in favor of the proponent admitting such will to probate.

The following are the material facts in the case, andaré not disputed: Christina Sutherland Connery, the testatrix, died January 18, 1908, leaving surviving her a husband, James A. Connery (who is proponent of the will), two sons, William S. Connery, „ contestant, and J. Alfred Connery, all of Saginaw, Mich., and also a brother, John. Sutherland, of Virginia, Minn. The day after her death, the proponent stated to the two sons that there were two wills left by the deceased, one of which practically cut off the elder son, W. S. Connery, and the other divided the property equally between the sons, and that it was her instructions to keep the wills without probating for one year.

Nothing was done about probating the estate or proving a will until after the year elapsed, when, in the latter part of January, 1909, the two sons went together to their father, and asked him to produce the wills, and were told that he would not get them then, but might do so the next day. The following morning, however, he went away without producing the wills. The two sons thereupon, on January 29, 1909, executed an agreement for the purpose of carrying out the wishes of their mother as they understood them to be, and authorizing the probate court to distribute and administer the estate in accordance therewith. The proponent filed the petition for the probate of the will in controversy in the probate court for Saginaw county, February 4, 1909, and contestant filed his objections, claiming that it was not the will, nor the last will, of deceased, and was not executed on the day it bore date, nor with the formalities required by law. And the contestant also offered the agreement with his brother in evidence, and on its rejection filed the additional objection based upon the refusal of the probate court to receive said agreement in evidence. The will was allowed, and an appeal was taken to the circuit court for Saginaw county, where the will was sustained.

The will was dated August 15, 1904, and by it testatrix devised her property in the city of Saginaw (consisting of the Connery Flats, comprising a number of apartment houses located at the corner of Washington and Johnson streets) to her younger son, J. Alfred Connery, Jr., subject to a life estate in the same to her husband, the proponent, and also provided for a payment to contestant, the elder son, of $500 a year for four years, with the statement that this was in lieu of a larger sum because he had already had several thousand dollars. The will also devised real estate in Virginia, Minn., to the younger son, subject to a life estate of her brother, John Sutherland, and appointed the two sons executors of the will, provided the younger son should be of age when the will became operative.

The will was drafted in January or February, 1902, by Alfred Newton, of Saginaw, Mich., who died in November, 1902, and it was claimed by proponent that testatrix preserved this draft, and on the 15th of August, 1904, he filled in the date at her request, and that the will was then executed in his presence and the presence of the other witness, Dennert. He testified that he thought that she executed two other wills after this one and kept them in a tin box, in the joint control of himself and testatrix until after her death, and in his exclusive control afterwards.

The witness Dennert, whose name appeared as subscribing witness to the will, occupied a room in one of the apartments of the Connery Flats, and testified that it was his signature upon the will, but that he had no recollection of the testatrix being present when he signed, nor of her signing the will, nor of seeing her signature upon the will, and that he did not know the contents of the instrument signed, neither did he read the will nor the attestation clause. He testified that Mr. Connery, the proponent, came to his room in the evening, and asked him to step downstairs and sign a paper, purporting to be a will; that he accompanied him to the Connerys’ private room, where Mr. Connery, the proponent, spread out the papers and explained the object, after which witness signed. It was the only visit he ever made to that room. He did not remember the date, but did remember that in 1905 (a year later) he witnessed another will, which the testatrix signed, and recalls the circumstances of that will and the names of the parties present, and remembers “very distinctly that he never signed any will in the company of the proponent except these two.” This witness was holding a position as chief clerk of R. G. Dun Sr Co., and had had 18 years’ business experience with that firm; and was quite well acquainted with the testatrix. He testified positively that he signed in the evening.

The proponent, who was the other witness to the will (and a beneficiary), likewise testified in the probate court that he believed that the will was executed in the evening. It was not claimed in the probate court that the will was executed in the morning before the testatrix went away, but both witnesses testified that to the best of their recollection it was executed in the evening. Proponent also testified that the will was executed by the testatrix in the presence of himself and Mr. Dennert, both of whom signed it in the presence of the testatrix, on the 15th day of August, 1904. The testatrix left her home on August 15, 1904, between 7 and 8 a. m., to take a train for Minnesota.

Witness Dennert testified that the paper he signed was placed on a chiffonier about the height of his arm, while proponent testified that it was signed at a little table at which Mrs. Connery was sitting when Mr. Dennert and he came in.

There was no proof of the contents of the will of 1905, and proponent states that he does not know what became of it, and never saw any other will after the death of his wife except the one offered in evidence. He states:

"We kept all her papers in this little box, and there was no other place until I found this will;” and "the key was always kept in the drawer or chiffonier of hers. That is where the key was if either of us wanted to use it.”

In the probate court proponent testified that he did not file the will for probate until February, 1909, because he was not able to find it, and admitted that he lied to his sons in telling them that their mother’s wish was that the will should not be probated for one year. He testifies that he did not know until he offered the will for probate that he could not take under it because he was a witness.

The genuineness of the signature is not disputed. The due execution of a later will was proved by both witnesses thereto, and was admitted by proponent. There was a sharp dispute in the case as to whether this will was duly executed at the time claimed by proponent in the presence of the witnesses. He claimed that it was in the morning of August 15, 1904, just before testatrix took the train for Minnesota. That she left on that morning between 7 and 8 o’clock is fixed by all the testimony. Witness Dennert testifies positively that he signed this will with proponent, giving minutely all the circumstances. He is absolutely disinterested and a trained business man. He says that he does not remember that testatrix was present. He says he signed standing at a chiffonier with the paper resting on it. Proponent swears that testatrix was there, and Mr. Dennert signed at a small table where she sat. Witness Dennert did not read the will or the attestation clause, and did not know their contents.

Contestant contends that the court erred in charging the jury:

“ It is not important that Mr. Dennert, one of the subscribing witnesses to the will, claims that he does not remember that Mrs. Connery was present at the time when he signed as a subscribing witness. He has signed an attesting clause (stating its substance), and, in view of that fact, the court is of the opinion that there is a presumption that he signed it in the manner in which he has stated he signed it. * * * The due execution of a will may be shown even against the direct testimony of subscribing witnesses. By subscribing his name, the witness, in fact, certifies to his knowledge of the mental capacity of the deceased, and of the facts to which he certifies by signing his name below that certificate.”

It is claimed by contestant that by this charge the court, in effect, instructed the jury that the signing of such clause was a conclusive presumption its recitals were true. The court also charged the jury generally as to the necessary requirements to the valid execution of a will, but it is claimed that this was given in such terms as would lead the jury to understand that the witness need not know that it was a will, be requested to sign it as a will, or be actually in the presence of the testatrix, and the substance of the paragraph quoted was repeated. The entire charge given upon this proposition must be considered, in order to determine whether the jury was fairly instructed. Proponent, in justification of this charge, relies upon the case of Abbott v. Abbott, 41 Mich. 540 (2 N. W. 810). We do not think the case decisive of the question here presented. There the contention was that the jury should have been directed to find against the will because it was not proved by both witnesses as to th'e various statutory requisites. Here the objection is that the court did not allow the jury to consider the testimony of Dennert except as to his signature. He was the only disinterested witness in the case, a man of large experience, and had testified sharply contradicting Mr. Connery, Sr., as to the time of the execution of this will and the facts of signing as a witness. He was absolutely accurate and nncontradicted as to all the details of the execution of a later will by her, and positive as to her presence. The witness Connery changed his testimony given in the probate court. There he agreed with witness Dennert that this signing occurred in the evening. He testified in the circuit court that it was in the morning, just before she started for Minnesota on the train. In the case relied on (Abbott v. Abbott, supra), this court, speaking of subscribing witnesses, said:

“Their evidence is not conclusive either way, nor does the law presume that they are either more or less truthful than others.”

It was further said:

“It presumes that they had, when they signed, full knowledge of what they were doing, and, in case they are dead, their attestation when proved is prima facie evidence that all was done as it should be. But in all contested will cases the case is open for general witnesses, and, when the testimony is all in, each witness is credited according to the impression he leaves of candor and intelligence, and not according to his being or not being an attesting witness.”

The witness Dennert swears that" he never read the attestation clause or knew its contents, which overcomes any presumption which may be claimed from the words above quoted, if they apply to any except uncontested cases, which we do not admit. The last paragraph indicates that all of the testimony of a subscribing witness is for the consideration of the jury.

We think that the portions of‘ the charge objected to, taken as a whole, as applied to the facts of this case, were erroneous and misleading. Immediately after the foregoing portion of the charge had been given, counsel for contestant said to the court:

“ I wish to make the further objection to that, that the mere signing by him of the attestation clause would not prevent the evidence being weighed by the jury as to whether Mrs. Connery was in Saginaw or not.”

This statement can be considered under these circumstances in^effect a request to the court to so charge. It was so understood by the court as appears from what immediately follows in the record:

The Court: I have already said, gentlemen of the jury, and I have already stated to you, that if consistent with this evidence you find that that instrument was executed on some day prior to the time when Mrs. Connery went to Virginia, State of Minnesota, whether it was upon that particular day or not, it is her will just the same.”

Error is assigned upon this charge.

Proponent in the circuit court contended that this will was executed on Monday morning August 15,1904. Eor reasons best known to himself, he has changed his positive testimony as to this time given in probate court, which was identical with the testimony of Dennert. This portion of the charge as stated had already been given at greater length, which is included in another assignment of error. They will stand or fall together. The time of the execution of this will had been considered as vitally important by proponent, as has already been stated. These charges were misleading in effect, charging that it made no difference in this case when the will was executed. It did make a difference as bearing upon the credibility of proponent, and therefore upon the probability as to whether the will was executed as required by the statute.

It is claimed by contestant that the will on its face showed erasures and changes of dates, and a red line in ink drawn through the Christian name of the signature of testatrix indicating a revocation of the will. The court refused to allow the question to be submitted to the jury, holding that there was no evidence to warrant it. We do not know what the evidence was, and the will is not returned with the record. No exception was taken, and no error is assigned upon the ruling.

But one other question raised by the assignments need be mentioned, and that relates to the admission of the extrajudicial statements of proponent, relative to the contents of the later will, made to his sons on the morning after the mother’s death. It will not be necessary to state and discuss them. In our opinion they were not admissible, under the decisions of this court, and their exclusion was not erroneous.

The subject-matter of the contents of this will and its history would have been proper cross-examination of proponent.

For the errors pointed out, the judgment of the circuit court is reversed, and a new trial ordered.

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