author: Blair, J.

text:
    FIRST NATIONAL BANK OF OVID v. STEEL.
    1. Limitation op Actions — Accrual op Cause op Action — Fraudulent 'Representations.
    A cause of action in assumpsit, under section 10421, 3 Comp. Laws, for fraudulent representations regarding the value of shares of stock deposited as collateral to secure the discount of promissory notes, accrues at the time the shares are accepted and the notes discounted in reliance on the representations, notwithstanding the assignment of the shares provides that “if the notes are not paid when due,” the assignee shall “have the right to sell said stock.”
    3. Same — Knowledge op Fraud — Facts Putting on Inquiry.
    Where, within ten days after the acceptance by plaintiff of certain shares of stock as collateral, in reliánce on representations by defendants, who were stockholders of the company, that the company was solvent, the company executed mortgages in favor of its creditors, which, on foreclosure, brought insufficient funds to pay its debts, of which proceedings plaintiff had notice, plaintiff was chargeable with knowledge of facts putting it on inquiry as to the fraud perpetrated upon it, which prevent the application of section 9739, 3 Comp. Laws, suspending limitations in cases of fraudulent concealment.
    Error t'o Clinton; Stone, J.
    Submitted June 15, 1906.
    (Docket No. 63.)
    Decided November 7, 1906.
    Assumpsit by the First National Bank of Ovid against George A. Steel and David S. French to recover damages for fraud and deceit. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      A. Gr. Shepard (Lyon & Moinet, of counsel), for appellant.

      H. JEJ. Walbridge, for appellee Steel.

      William M. Smith, for appellee French.
   Blair, J.

This is an action of assumpsit, brought under the provisions of section 10421, 3 Comp. Laws, to recover for the fraud and deceit of defendants, whereby plaintiff was induced, as it is alleged, to discount certain notes and receive as collateral security certain corporate stock. The declaration contains two special counts, to which are added the common counts.

The first count alleges, so far as we deem it pertinent to this opinion to state its substance: That the defendants and Robert M. Steel were stockholders in the St. Johns Manufacturing Company. That on or about February 29, 1896, defendants filed with the secretary of State and county clerk the corporation’s annual report, fraudulently representing the financial condition of the company. That defendants represented to plaintiff that this report was a correct statement of the financial standing and responsibility of the corporation, upon which representations plaintiff relied. •

“And the plaintiff further avers that on, to wit, June. 26, 1896, said bank, relying as aforesaid, discounted certain promissory notes for the R. M. Steel Company, Limited, a partnership association, limited, then and there existing at said village of St. Johns aforesaid as follows:

“1. A note of $210.50, dated June 26, 1896, payable thirty days after date, to the order of R. M. Steel at the First National Bank of Ovid, with interest at 7 per cent, after date, signed by the R. M. Steel Company, Limited, by Robert G. Steel, secretary, and indorsed by R. M. Steel.

“2. Anote of $215.50, dated June 26, 1896, payable four months after date, to the order of R. M. Steel, at said bank, with interest at 7 per cent, after date, and signed and indorsed as aforesaid.

“3. Anote of $2,508.36, dated June 26, 1896, payable January 1, 1897, at said bank, with interest at 7 per cent, per annum after date, signed and indorsed as aforesaid.

“4. A certain note made by Robert G. Steel for $63.65, dated June 26, 1896, indorsed by R. M. Steel Company, Limited.

“ 5. A certain note made by Robert G. Steel, indorsed by the R. M. Steel Company, Limited, dated June 26, 1896, for $63.65.

“6. A certain note made by Robert G. Steel and indorsed by the R. M. Steel Company, Limited, dated June 26, 1896, for $3,718.90.

“ And the plaintiff further avers that said bank took, as collateral security to said notes, 1,500 shares of preferred stock of said St. Johns Manufacturing Company. And the plaintiff further avers that said R. M. Steel Company, Limited, was then and there at the time of the dates of said several notes, a partnership association, limited, organized and existing under the laws of said State of Michigan, and from the time of its organization to and after the time of said several signatures and indorsements it was financially embarrassed, crippled, worthless, and wholly insolvent, and that said R. M. Steel was before and during all of said time financially embarrassed, crippled, worthless, and wholly insolvent, and that defendants had full knowledge and notice in the premises during all of said time.”

That on July 6, 1896, the St. Johns Manufacturing Company executed mortgages in favor of its creditors upon all of its assets, and on the 8th day of July, 1896, the defendant French was appointed receiver of said company and served until his discharge, March 6, 1899.

‘ ‘ And the plaintiff further avers that after the appointment of said receiver as aforesaid divers large claims and debts were duly filed and proven against said corporation to the amount of, to wit, $125,000, and upwards, and that there did not sufficient moneys, assets, and property of said corporation come to the hands of said receiver, al-' though he exercised due and proper care and diligence in and about collecting and recovering the assets of said corporation, to enable him to pay the debts of said corporation, and that there still remains unpaid debts of said corporation, proven and filed as aforesaid, to the amount of $50,000 and upwards.”

That at the time of the-fraudulent representations the St. Johns Manufacturing Company was then and there,' and continued thence hitherto, until the discharge of said receiver, as aforesaid, financially irresponsible, embarrassed, crippled, uncollectible, and insolvent, and that said defendants then and there during all of said time had notice and knowledge of the premises.

The second count alleges, in substance, that on June 26, 1896, the defendants, for the false and fraudulent purpose of obtaining from the plaintiff a large sum of money, to wit, $10,000, and of inducing said bank to purchase, receive, and discount certain promissory notes, described in the first count, and to accept and receive as collateral security therefor 1,500 shares of preferred stock of the St. Johns Manufacturing Company, and with knowledge that the representations were untrue, represented that the' St. Johns Manufacturing Company was solvent, the stock worth $10 per share and upwards; that the defendants had been and were then stockholders and directors of the ■ company; that the bank relied upon the representations and discounted said notes and received as collateral security 1,500 shares of the preferred stock of the St. Johns Manufacturing Company and then and there paid value therefor; that the representations were false and untrue; that the company was irresponsible and insolvent.

The facts disclosed by the record may be briefly stated as follows: On June 26, 1896, plaintiff held a number of notes against Robert G. Steel and R. M. Steel, amounting to about $7,000. Two of the notes were then past due, one would become due June 30, and the remainder at different dates down to December 31, 1896. One of plaintiff’s directors, with its attorney, called on the parties to the notes for payment or satisfactory security. Defendant Steel and his father, R. M. Steel, offered in settlement the notes described in the first count of the declaration, together with an assignment of 1,500 shares of the St. Johns Manufacturing Company as collateral security. Defendant George A. Steel, in connection with the offer of settlement, exhibited the annual report of the corporation and verbally represented that it was correct and that the stock was worth more than par. Relying upon these representations, plaintiff’s representatives accepted the new notes and security and surrendered the old notes.

' The assignment of the shares of stock contained a provision that it was made for the purpose of securing the payment of certain notes signed or indorsed by the R. M. Steel Company, Limited, ‘ ‘ and if the said notes are not paid when due, then, in that event, said the First National Bank of Ovid to have the right to sell said stock either at private or public sale and apply the proceeds thereof toward the payment of said notes.”

On July 6, 1896, the St. Johns Manufacturing Company executed mortgages upon its entire assets to secure its creditors, and R. M. Steel and the. R. M. Steel Company, Limited, made assignments for the benefit of their creditors. The defendant French was appointed receiver of the St. Johns Manufacturing Company, July 8, 1896, and sold its assets on January 24,1899, not realizing sufficient therefrom to pay its creditors. Plaintiff had notice of the appointment of the receiver, the assignments for the benefit of creditors, and the receiver’s sale about the time of or in a few weeks after their occurrence, and instructed its attorney “to watch out for our interests.”

Plaintiff’s vice president testified:

Mr. High reported to us as officers of the bank different steps that were taken. I can’t tell you whether he made a report a short time after the company went into the hands of a receiver. My mind is entirely blank on that subject. I could not give you the dates. I presume it was within a few months. That is my recollection of # * *

“We were trying to collect these notes. They were placed in the hands of Mr. Spalding. I don’t swear the paper was put in his hands, but our interest was. I represented the bank at a consultation with Mr. Spalding about our claim against R. M. Steel and Robert Gr. Steel, the paper we now have. Mr. High and I went to Mr. Spalding in reference to the interests of the bank, against the Steels in his hands. That was at a creditors’ meeting. A meeting of the creditors of the R. M. Steel Company, Limited, and R. M. Steel. My judgment is that this was shortly after the assignment. ■ I don’t know the date of the assignment. We consulted with Mr. High in a general way about what we had — the paper that we had, etc. I think we learned in January, 1902, that this stock was worthless from our attorney. * * *

‘ ‘ I don’t recollect of any definite attempt being made, after the appointment of the receiver for the St. Johns Manufacturing Company previous to January, 1902, to ascertain whether or not there was any value to this stock, for the simple reason that our interests were placed with the other creditors in the collection of what belonged to us. I recollect nothing in regard to trying to ascertain the actual value of this stock.”

Plaintiff’s counsel allege in their supplemental brief that:

“The evidence in this case shows that on July 6, 1896, 10 days after this stock was represented as being worth par and the company to be in a prosperous condition, it, through these defendants and others, made to defendant French real estate, and chattel mortgages covering all its property of every kind to secure its creditors. These mortgages were afterwards foreclosed and not enough realized to pay over 60 per cent, of its debts. Certainly this was evidence, and strong evidence, too, that this company was insolvent on the 36th of June. It was also shown that from the 36th of June to July 6th the condition of the company was the same.”

Plaintiff collected $1,875 on the notes of R. G. Steel and the notes passed out of the possession of the bank. Plaintiff was unable to collect anything on the other notes and commenced this action in October, 1903. Defendants gave notice under their plea of the statute of limitations. The circuit judge directed a verdict for the defendants upon the grounds that:

1. The alleged fraudulent representations were not wholly in writing, as required by section 9518, 3 Comp. Laws.

3. That no damages were proven to have resulted.

3. That the cause of action was barred by the statute of limitations.

Plaintiff has removed the record to this court for review upon writ of error.

We are of the opinion that the court properly directed a verdict for defendants upon the ground that the cause of action was barred by the statute of limitations. Plaintiff was damnified, and its cause of action accrued as soon as it discounted the notes and accepted the worthless shares of stock in reliance upon the fraudulent representations. Briggs v. Brushaber, 43 Mich. 330; Short v. Cure, 100 Mich. 418.

Plaintiff contends, however, that the provision in the assignment that, “if said notes are not paid when due, then in that event the First National Bank of Ovid to have the right to sell said stock,” etc., “ puts this stock in the position of a guarantor of the payment of these notes;” that the cause of action, for the fraudulent representations was contingent upon the nonpayment of the notes when due, thereby distinguishing the case from Briggs v. Brushaber.

In Briggs v. Brushaber the plaintiff loaned her money upon a note and mortgage. In that case defendant’s counsel took the position in their brief that “the loss, if any, of the plaintiff depends upon a contingency, viz., her failure to realize the amount due her upon the securities which she holds. If through them she can realize such amount, then she has suffered no damage. It is not alleged that when this action was commenced any sum had become due upon the note and mortgage.” The contingency in that case was the same as in this. The securities became enforceable in both cases upon failure to pay the notes at maturity. The notes and collateral securities were subject to sale and transfer in this case as were the note and mortgage in that, and the rule laid down in Briggs v. Brushaber must, therefore, govern.

Plaintiff also contends that it did not have knowledge of the fraud practiced until 1902, and that its cause of action was therefore saved by section 9739, 3 Comp. Laws. If it can be plausibly claimed that the facts known to plaintiff and its attorney were not such as to conclusively imply knowledge of the fraud, they were certainly of such a character as to notify the plaintiff of the great probability of fraud, and therefore to put it upon inquiry.

The statute was not designed to help those who negligently refrain from prosecuting inquiries plainly suggested by facts known, and the plaintiff must be held chargeable with knowledge of the facts, which it ought, in the exercise of reasonable diligence, to have discovered. Purdon v. Seligman, 78 Mich. 132; Higgins v. Crouse, 147 N. Y. 411; Burke v. Smith, 16 Wall. (U. S.) 390.

' The judgment is affirmed.

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


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    DAWE v. BOARD OF HEALTH OF CITY OF MONROE.
    Health — Contagious Diseases — Epidemio— Boards of Health —Employment of Physioian — Liability of County.
    Where the itemized account of a physician, for services rendered during an epidemic of contagious disease, is certified to the board of supervisors by the local board of health, it is before the supervisors for audit under Act No. 7, Pub. Acts 1903, and it is their duty to proceed to audit the same, notwithstanding the local board, on reference back to them of the account, has returned it to the supervisors with the statement that the services were not rendered pursuant to an order of the board of health.
    Certiorari to Monroe; Lockwood, J.
    Submitted October 3,1906.
    (Calendar No. 31,873.)
    Decided November 7, 1906.
    Mandamus by Denias Dawe to compel, the board of health of the city of Monroe to audit, allow, and certify to the board of supervisors a bill for services in the treatment of contagious diseases. There was an order denying a request to frame issues of fact, and relator brings certiorari.
    Affirmed.
    In January, 1906, an epidemic of diphtheria and scarlet fever broke out in St. Francis Home, a charitable institution for the care of boys in Monroe. The relator, a physician, claiming to have been employed by respondent, presented his bill for services, amounting to $373.50. It is admitted that said bill was ordered by the respondent certified to the board of supervisors; that it was certified, but the board of supervisors, refusing to accept the form of the certificate, referred the bill back to the respondent. The respondent, subsequently, and on March 16, 1906, rescinded its resolution, and ordered the bill sent back to the board of supervisors, with the statement that the services were not rendered in pursuance of an order of the board of health. A new board of health came into existence at the election in April of that year. May 10, 1906, relator applied to the circuit court for the county of Monroe for a mandamus to compel the respondent to audit, allow, and certify his bill for such sum as should be reasonable to the board of supervisors. The respondent answered, setting up the change in the personnel of the board since its former action above set forth, denied that the St. Francis Home was not the legal guardian of the children, or that the parents and guárdians were irresponsible financially; denied that relator’s services were rendered by order of the board of health. Replication was filed to this answer, and the relator asked for two issues to be framed, as follows:
    1. Was the relator employed to render the services for which he charged ?
    2. If so, what is a reasonable compensation for such services ?
    The court refused to frame such issues, holding that they were not proper. This ruling of the circuit court is before us for review on the writ of certiorari.

      John J. Kiley and Willis Baldwin, for relator.

      Jesse H. Boot, for respondent.
   Grant, J.

{after stating the facts). Under Act No. 7, Pub. Acts 1903, the auditing of bills incurred by the public in case of infectious and dangerous communicable diseases is lodged in the board of supervisors of the county. The local hoard of health is required by said act to keep an itemized and separate statement of expenses and render the same to the board of supervisors by filing the same with the county clerk. The entire responsibility then rests upon the board of supervisors to pass upon the necessity of such expenses, the services performed, the justice and reasonableness thereof, and to allow such parts thereof as the board shall deem just. It appears that the itemized bill of relator was presented to the respondent and by the respondent filed with the clerk of the circuit court as the law requires. The certificate to which the board of supervisors objected is' not found in the record, and we cannot therefore determine its sufficiency. The statute does not in terms require any certificate.

The action of the board of health is not affected by the fact of a change in its members; ■ and such change is no objection to this proceeding on the part of. relator. If relator’s itemized statement was rendered to the board of supervisors by the authority of the respondent, it was the duty of the board of supervisors to proceed to audit the account. If the employment of the relator by the respondent was denied, an issue of fact is presented for the determination of the board of supervisors, and it is the duty of the latter board to determine whether the board of health made a contract for the relator’s services. Act No. 7 refers all such issues of fact to the board of supervisors. We have not before us a case where a board of he'alth denies á contract, and for that reason refuses to make the statement to the board of supervisors. An itemized statement was rendered. Upon this record the relator’s account is properly before the board of supervisors for action, and they should proceed to hear it. Sawyer v. Village of Manton, 145 Mich. 272.

The order of the circuit court is affirmed.

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


author: McAlvay, J.

text:
    McCALL v. CALHOUN CIRCUIT JUDGE.
    1. Statutes — Subjects and Titles — Sufficiency of Title.
    Act No. 272, Pub. Acts 1905, entitled “An act to designate the places for holding the circuit court in the 37th judicial circuit,” embraces but one subject, which is sufficiently expressed in its title, notwithstanding details are provided for rendering the act effective.
    2. Same — Relevancy to Title.
    The contention that the designation of the particular place in the city of Battle Creek for holding the terms of court to be held in that city is not within the object of the law as expressed in its title, because no such designation is made as to the terms to be held in the city of Marshall, is untenable, it being unnecessary, under section 305, 1 Comp. Laws, to make other designation than the statement that Marshall is the county seat.
    3. Same — Amendment—Re-enactment of Amended Section.
    Act No. 272, Pub. Acts 1905, providing for holding two terms of the circuit court for Calhoun county in the city of Battle Creek each year, modifies section 305, 1 Comp. Laws, only so far as it is repugnant to it, and leaves the remainder of the section in force, hence it was not necessary, under section 25, article 4, of the Constitution, to re-enact section 305 at length.
    4. Constitutional Law — Legislative Powers — Delegation to City Council.
    Act No. 272, Pub. Acts 1905, providing that two terms each ■ year of the circuit court for the county of Calhoun shall be held at the city of Battle Creek provided the common council of said city shall furnish a suitable place for holding court, does not delegate legislative power to the city council respecting the place of holding court.
    5. Same — Delegation to Judiciary.
    Such act, by providing for inspection and approval by the circuit judge of the place for holding court furnished by the city, does not confer legislative power upon the judge.
    6. Courts — Terms—Time and Place of Holding Court — Orders —Validity.
    Where a circuit judge, acting under section 302,1 Comp. Laws, has fixed and appointed the times for holding the terms of the circuit court for the succeeding two years, a subsequent order by his successor in office, made pursuant to a subsequently enacted statute, fixing the place of holding the terms already designated, is valid.
    Petitions by George N. McCall against Walter H. North, circuit judge of Calhoun county, for a writ of prohibition restraining the trial of petitioner in the city of Battle Creek, and for a writ of mandamus compelling the vacation of the order establishing such place of hearing.
    Submitted October 2, 1906.
    (Calendar No. 21,923.)
    Writs denied November 7, 1906.

      Edward J. Dennison, for relator.

      Joseph L. Hooper, Prosecuting Attorney (Arthur B. Williams, of counsel), for respondent.
   McAlvay, J.

Petitioner, regularly informed against, and arraigned in the circuit court for Calhoun county for the crime of forgery, prays for a writ of prohibition against the circuit judge of said county, restraining and prohibiting him from proceeding to try petitioner in the city of Battle Creek, in said county, according to the terms of an order heretofore duly made and entered by said circuit judge in said court, and also for a writ of mandamus compelling the vacation of said order.

The questions raised in the case challenge the constitutionality of an act of the legislature, being Act No. 272 of the Public Acts of 1905, entitled “An act to designate the places for holding the circuit court in the 37th judicial circuit.” The provisions of said act necessary to be examined in the determination of the case are as follows:

“ Section 1. After the year nineteen hundred five, two of the regular terms of the circuit court for the thirty-seventh judicial circuit, said circuit being made up of Calhoun county, shall be held each year within the city, of Battle Creek, in said county: Provided, That the common council of said city of Battle Creek, or the citizens thereof, shall furnish and provide, free of expense to said county, a suitable place, including light, heat and janitor, for holding said court within said city and transacting the business thereof, and also a suitable and sufficient jail for the .incarceration of prisoners, who may be held therein for trial, during the sittings of said court, and also a fire-proof safe or vault within which to keep the files and records of cases on the calendar for any such terms of court; the place for the holding of said court and the jail, together with the sufficiency of said vault or safe, to be inspected and approved by the judge of said court or the prosecuting attorney of said county, which approval shall be in writing and shall be filed with the clerk of said county.

“ Sec. 2. After the year nineteen hundred five, two of the regular terms of the circuit court for said thirty-seventh judicial circuit shall be held each year within the city of Marshall, the county seat of said county.

“Sec. 3. After the year nineteen hundred five, the terms of court to be held at the city of Battle Creek, under the terms of this act, shall be respectively alternated with the terms of said court to be held at the said city of Marshall, the county seat of said county of Calhoun; and the judge of said circuit court shall, after this act takes effect, when fixing and appointing the times of holding the several terms of said court within said county as provided by law, shall designate which of the regular terms thereof shall be held within the said city of Battle Creek, and which of the regular terms thereof shall be held within the said city of Marshall, which designation shall be in writing and shall be immediately thereafter transmitted by him to the clerk of said county.”

The remaining sections authorize' the court, in its discretion, when expedient and proper, to adjourn court from one of these places to the other for the trial and hearing of cases and other proceedings, and when the court is held in Battle Creek the county clerk is required, under the direction of the circuit judge, to deposit the necessary records and files of the court in. the building designated for that purpose.

The authority of the legislature under the Constitution to enact legislation of this character is not questioned; it being admitted that the case of Whallon v. Ingham Circuit Judge, 51 Mich. 503, has determined that proposition affirmatively. The provisions of the act under consideration in that case are in many respects identical with those of the act now before us, and it is conceded that the body of this act is substantially borrowed'from the Ingham county act.

The first objection discussed is that the object of the law is not expressed in its title, as required by section 30, art. 4, of the Constitution. This act is entitled “An act to designate the places for holding court in the 37th judicial circuit.” The Constitution provides that no law shall embrace more than one object, which shall be expressed in its title. We do not discover any force in this objection. There is nothing in the body of the act incongruous with the title. In a leading case in this State it was said by Justice Cooley :

“ The purpose of this provision is accomplished when the law has but one general object, which is fairly indicated by its title.” People v. Mahaney, 13 Mich. 481, 495.

The sole object of the act, as gleaned from its provisions, is to designate the places for holding court in the judicial circuit named. This object the title expresses in apt terms. The details provided for rendering the act effective are not objectionable because confined “to the means supposed to be important to the end indicated.” People v. Mahaney, supra. The act provides that after the year 1905 two of the regular terms of said court shall be held each year within the city of Marshall, the county seat of said county, and two of the terms within the city of Battle Creek. Provision is made how and by whom the place for holding said court in Battle Creek is to be provided and designated, but nothing is said designating the place at Marshall. This is urged as not being within the object of the law as expressed in its title, and further, that it alters and amends section 305, 1 Comp. Laws, which provides that the terms of the several circuit courts in each county shall be held in the court-house therein if there be one; such amendment being contrary to the provisions of section 25, art. 4, of the Constitution, relative to amendments of laws. This court in the case of Whallon v. Ingham Circuit Judge, supra, decided that it was within the power of the legislature to designate a place other than the county seat for holding certain terms of the circuit court. This is conceded by the petitioner. No necessity-arose for the legislature to make other designation of the place for holding the terms of court at Marshall than the statement that it was the county seat. In that regard section 305, 1 Comp Laws, which provides that the place of holding the terms of the circuit court in each county shall be the court-house therein, controls and determines. Such would seem to have been the legislative intent. This act, as far as Calhoun county is concerned, modifies section 305 only in so far as it is repugnant to it, and leaves the remainder of the section in force. Connors v. Iron Co., 54 Mich. 171; Musselman v. Wright, 107 Mich. 639.

It is next urged that the legislative power of the State has been delegated by the proviso of section 1 to the common council of Battle Creek or its citizens, upon the theory that the furnishing of a building in the city of Battle Creek by such parties at their own expense is a designation by them of the place for holding court in that circuit, and that the statute was not effective without such action. This act when it left the legislature was complete. Every required legislative step had been taken to make it a law. The places, Marshall and Battle Creek, had been designated as the places for holding court. The law was tó take effect provided the parties mentioned furnished the building in which court was to be held. The legislature may enact a valid law to take effect upon the happening of any future event, certain or contingent, which does not involve the exercise by others of that legislative will and discretion, which cannot be constitutionally delegated.

“The event on which a law may be made to take effect must be such as in the judgment of the legislature affects the question of the expediency of the law. *. * * When the law is made to take effect upon the happening of such an event, the legislature, in effect, declares the law inexpedient if the event should not happen.” People v. Collins, 3 Mich. 354, 427.

Walton v. Greenwood, 60 Me. 356. For the statement of the rule as to valid contingent legislation and citation of authorities, see 6 Am. & Eng. Enc. Law (2d Ed.), p. 1031. This principle was recognized by this court in a recent opinion written by Justice Carpenter. The court, quoting from Locke’s Appeal, 72 Pa. 498, said:

“The legislature cannot delegate a power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. ” King v. Insurance Co., 140, Mich. 258.

Section 1 of this act is identical with a section of the Ingham county act above referred to.

The third proposition contended for is that this statute, in providing for the inspection of the building and jail by the circuit judge, confers upon him functions that are not judicial, and that the said judge, in making an order approving the building and jail furnished by the common council of Battle Creek, and designating the terms of court to be held in said building for the years 1906 and 1907, unlawfully exercised legislative power. As to the inspection and approval in writing by the circuit judge or the prosecuting attorney, if considered as connected with furnishing a building and jail by the city of Battle Creek or its citizens before the act could take effect, what has been said relative to that matter in this opinion need not be repeated. The authority of inspection and approval given to the circuit judge was not legislative, but while it was, in its, nature, more ministerial than judicial, it was such a power as could be granted to and exercised by him. Board of Com’rs of Jackson Co. v. State, 147 Ind. 476, 492.

Whether the order in question contains the language which might indicate that the judge exceeded the authority given by the statute need not be considered. If so construed, such language would be surplusage merely. The statute further provides that after 1905 the terms of court shall alternate between Marshall and Battle Creek, and also for a designation by the circuit judge, when fixing and appointing the times, of holding terms of court as provided by law, which of the regular terms shall be held at Battle Creek and which at Marshall. His predecessor, under section 302, 1 Comp. Laws, had before November 1, 1905, fixed and appointed the times for holding the terms of said court for the succeeding two years. The order made by Judge North made no change in the times already fixed for holding.the terms of court, but, complying with the statute, he ordered that said terms should be held in the places designated by the legislature for holding the circuit court in his judicial circuit. In the case already cited, this court held a similar order valid; Whallon v. Ingham Circuit Judge, 51 Mich. 503, 508.

Other objections to the statute raised in his petition are not urged or discussed by the petitioner, and upon examination we do not find any of those not discussed meritorious.

This opinion should not be taken as implying that petitioner would be entitled to this remedy in any event. Upon that we express no opinion. The question was not raised on the hearing. The writs are denied.

Carpenter, C. J., and Ostrander, Hooker,- and Moore, JJ., concurred.


author: Per Curiam.

text:
    SPARROW v. E. BEMENT & SONS.
    Appeal and Error — Bonds—Rights oe Sureties.
    After entry of a decree against a corporation and appeal therefrom, the corporation was dissolved and a receiver appointed for its property. The Supreme Court modified and affirmed the decree below by awarding a money judgment against the receiver and the surety on the appeal bond, which was not made a lien on the assets of the company in the hands of the receiver or otherwise given a preference over the general creditors. Held, that, the complainant not objecting to the form of the decree, the surety on defendant’s appeal bond was not entitled to a preference, or to be relieved from its obligation on the bond at the expense of the creditors generally.
    Motion by the Title Guaranty and Surety Company, surety in the appeal of E. Bepaent’s Sons, to modify the decree heretofore entered in this court in said cause (143 Mich. 441), or for a rehearing.
    Submitted October 9, 1906.
    (Calendar No. 30,738.)
    Motion denied November 7, 1906.

      Graves, Hatch & Wasey, for relator.

      Edward Cahill, contra.
   Per Curiam.

At the request of counsel we file the following memorandum of our reasons for denying the motion to modify our decree in the above-entitled cause:

The decree of this court awarded a money judgment (the amount to be subsequently determined) against the Detroit Trust Company,'receiver, and the Title Guaranty & Trust Company, surety on the appeal bond. It limits the Title Guaranty & Trust Company’s liability to $10,-000, being the amount of its bond, and provides that the decree shall constitute a claim against the property and assets of E. Bement’s Sons and the proceeds thereof in the hands of the receiver, to be paid by him in the due administration of the trust. Our understanding is that the complainant was not thereby made a preferred creditor, entitled to more than his proportionate share of the assets of E. Bement’s Sons, or that the decree of the circuit court was affirmed in regard to the alleged lien upon a portion of the assets.

We are asked to modify the decree in this particular, and to grant a rehearing if this is not otherwise practicable. We see no occasion to do either. Had Mr. Sparrow received the stock to which he was entitled, he could not be permitted to realize more out of it than other preferred stockholders, and it is obvious that none of them could realize anything until E. Bement’s Sons’ debts should be paid in full. Owing to the fact that the stock which of right should have gone to him, which he might have sold, was withheld and otherwise disposed of by E. Bement’s Sons, he has been treated as a creditor of E. Bement’s Sons, his claim being allowed at the valúe of the stock when appropriated; and this is as favorable consideration as he has a right to expect. Apparently it is satisfactory. He is not making this application. It comes from a surety company, who for a consideration has given its undertaking to pay this decree or pay the penalty of its bond. It has no just claim to a preference, or to be relieved from its obligation at the expense of the creditors generally.


text:
    BOYNE CITY, GAYLORD & ALPENA RAILROAD CO. v. ANDERSON. ANDERSON v. CHARLEVOIX CIRCUIT JUDGE.
    1. Eminent Domain — Railroads — Right of Way — Damages— Assessment — Evidence.
    Where, in proceedings to condemn land for a railroad right of way, the landowner expressly disclaims the right to recover damages for increased fire risk, evidence concerning the fire insurance rate on his buildings, offered by the railroad, is properly rejected.,
    2. Evidence — Phonographic Reproduction of Sounds — Admis- „ SIBILITY.
    In proceedings to condemn land for a railroad right of way, the landowner is properly allowed to exhibit to the jury, by means of a phonograph, a reproduction of the noises made by the petitioner’s trains in conducting their operations in the vicinity of respondent’s premises, a proper foundation having been laid for the admission of such evidence.
    3. Eminent Domain — Railroads—Appeal—Questions Considered —Rulings on Evidence.
    Questions raised over the introduction of evidence in proceedings by a railroad company to condemn land cannot ordinarily be considered on appeal, though evidence clearly improper might, justify a reversal of confirmation should it appear that it caused a substantial error on the part of the jury.
    4. Same — Condemnation Proceedings — Evidence — Harmless Error.
    Where, in proceedings to condemn land for a railroad right of way, the jury find it necessary for petitioner to occupy the land involved, errors in permitting the introduction of evidence concerning the feasibility of other routes are harmless.
    5. Same — Damages—Award—Review.
    With respect to the damages awarded in condemnation proceedings, it is not within the province of this court to review the question further than to see that the finding is supported by the evidence.

      6. Same — Attorney Fees.
    The circuit judge is the final arbiter as to the amount of attorney fees to be awarded in proceedings to condemn land for a railroad right of way, and this court cannot review his determination. Section 6240, 2 Comp. Laws.
    Error to Charlevoix; Mayne, J.
    Submitted October 17, 1906.
    (Docket No. 91.)
    Decided November 7, 1906.
    Condemnation proceedings by the Boyne City, Gay-lord & Alpena Railroad Company against Frank Anderson. There was judgment for respondent and petitioner brings error.
    Affirmed.
    Mandamus by Frank Anderson to compel Frederick "W. Mayne, circuit judge of Charlevoix county, to allow certain attorney fees.
    Submitted October 17, 1906.
    (Calendar No. 21,670.)
    Writ denied November 7, 1906.

      J. M. Harris and L. F. Knowles (James H. Campbell, of counsel), for appellant. '

      H. A. Jersey and George E. Nichols, for appellee.
   Blair, J.

Petitioner commenced condemnation proceedings in July, 1905, to determine the necessity for laying its tracks upon and along Ray street in Boyne City, opposite respondent’s hotel property, and for an appraisement of the damages in consequence thereof. The jury found that it was necessary for petitioner to occupy the street and appraised respondent’s damage at the sum of $1,500. The circuit judge confirmed the' report of the jury, and petitioner has appealed to this court, specifying the following objections:

“ 1. Rejection of evidence showing insurance rates on respondent’s buildings and upon other buildings in Boyne City.

“ 2. Admitting in evidence the use of the phonograph.

, “3. Admitting evidence to show that the petitioner could build its railroad upon another and different line in the village of Boyne City than the route shown by its map, approved by the State railroad crossing board and_ filed in the office of the register of deeds, and upon which the tracks were actually built in 1893.

4. Admitting evidence as to another line and permitting the jury to view and go over the said line.

“5. The admission of evidence as to such other line and arguments relating thereto was prejudicial to the petitioner respecting the amount of damages awarded, although the jury found that the use of the property described in the petition was necessary.

“6. The damages ($1,500) awarded by the jury are grossly exorbitant, extravagant, and excessive.

“7. The damages awarded are so excessive, unwarranted, and unjust as to show that the jury were actuated by false reasoning, immaterial matters, or by passion or prejudice.

“8. The damages awarded are unwarranted by, and are against, the weight of the evidence, and out of proportion to the value of the property claimed to be damaged by t,he proximity of the railroad.

“9. Admission of evidence and of argument to the jury claiming damages by reason of depreciation of the property on account of proximity of the railroad tracks, while the undisputed evidence shows that the property has appreciated in value continuously during the time since the tracks have been built.”

Admission and Exclusion of Evidence.

1. Respondent expressly disclaimed any right to recover damages for increased fire risk.

2. A phonograph was permitted to be operated in presence of the jury to reproduce sounds claimed to have been made by the operation of trains in proximity to respondent’s hotel. With proper proofs, such as were fully given in this case, to justify the introduction of the instrument as a substantially accurate and trustworthy reproducer of the sounds actually made and testified to, we think its use legitimate. Communications conducted through the medium of the telephone are held to be admissible, at least in cases where there is testimony that the voice was recognized. 27 Am. & Eng. Énc. Law (2d Ed.), p., 1091, and cases cited; 1 Wigmore on Evidence, § 669; 3 Wigmore on Evidence, § 2155. The grourid for receiving the testimony of the phonograph would seem to be stronger, since in its case there is not only proof by the human witness of the making of the sounds to be reproduced, but a reproduction by the mechanical witness of the sounds themselves.

Even if it should be held that it was error to permit the use of the machine, its mild reproduction of sounds could not have so seriously prejudiced petitioner as to require a reversal of the case upon that ground. As we have recently said:

“Questions raised over the introduction qf evidence cannot be considered, in these proceedings, ordinarily. We have so held in many cases cited in the briefs of counsel, repeated here for future reference. Michigan Air Line Ry. v. Barnes, 44 Mich. 226; Toledo, etc., R. Co. v. Dunlap, 47 Mich. 456; Port Huron, etc., R. Co. v. Voorheis, 50 Mich. 510; Detroit, etc., R. Co. v. Crane, 50 Mich. 182; Fort-Street Union Depot Co. v. Jones, 83 Mich. 415; Marquette, etc., R. Co. v. Longyear, 133 Mich. 94. It is true that evidence clearly improper might justify a reversal of confirmation, should it appear that it had caused a substantial error on the part of the jury; but we do not find such to be the fact hei’e. ” Detroit, etc., R. Co. v. Campbell, 140 Mich. 397.

3, 4. The jury found it necessary for petitioner to occupy the street as alleged by petitioner, and the errors, if any were committed, were harmless so far' as these specific objections are concerned.

Damages.

5-9. These objections relate to the subject of damages. The range of inquiry upon the subject of damages in such proceedings is quite wide; the object of the inquiry being to ascertain the respondent’s entire loss, for the purpose of making it good to him. Grand Rapids, etc., R. Co. v. Weiden, 70 Mich. 390; Grand Rapids, etc., R. Co. v. Chesebro, 74 Mich. 466; Commissioners of Parks & Boulevards of Detroit v. Railroad Co., 91 Mich. 291; Same v. Moesta, 91 Mich. 149, 154; City of Detroit v. John Brennan & Co., 93 Mich. 338; Keyser v. Rail way Co., 142 Mich. 143. There was an abundance of testimony, if believed by the jury, to sustain their award.

“It is not within our province to review the question of fact, further than to see that the finding is supported by the evidence.” Detroit, etc., R. Co. v. Campbell, 140 Mich. 397.

See, also, Detroit, etc., R. Co. v. Hall, 133 Mich. 302. The order of confirmation is affirmed, with costs of this court to respondent.

At the time of filing his motion for the confirmation of the report of the jury and to fix his attorney fees and costs, respondent" also filed a statement of the account of his attorneys, as follows: An itemized statement of the account of his counsel, George E. Nichols, amounting to the sum of $833.50; an itemized statement of the account of his local attorney, H. A. Jersey, amounting to the sum of $333.75.- Of these sums, $327.85 was charged for services and expenses in a chancery proceeding to enjoin the railroad company from operating its road in front of respondent’s premises. The circuit judge taxed respondent’s costs at the sum of $101.80 and allowed $200 for attorney fees and expenses of attorneys. Respondent applied to this court for a writ of mandamus to require the circuit judge to allow his attorneys’ fees and expenses as presented in their statements. An order to show cause was issued, to which the circuit judge made his return, and the matter was argued with the principal case. The return substantially admits that the services charged for were rendered and the amounts charged were reasonable as between attorney and client, but denies that they were reasonable within the meaning of the statute. Section 6240, 2 Comp. Laws. We think it was the intention of the legislature to make the circuit judge the final arbiter as to the amount of the attorney fees to be awarded in such proceedings, and that we cannot review his determination. Detroit, etc., R. Co. v. Hall, 133 Mich. 302.

Writ denied.

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


author: Moore, J.

text:
    COLEMAN v. ROBENS.

    1. Appeal and Error — Theory of Case — Questions not Raised at Trial.
    Where, at the trial of an action in ejectment to establish a boundary line, plaintiff disclaims any claim of adverse possession. she is not entitled to make such claim on error.
    2. Boundaries — Establishment—Survey — Question for Jury.
    In ejectment to establish a disputed boundary line, plaintiff claiming under a survey followed by the building of a fence upon the line so established, evidence examined, and held, sufficient to goto the jury on plaintiff’s theory, notwithstanding the claim that plaintiff’s cross-examination destroyed the effect of his direct testimony.
    Error to Calhoun; Adams, J.
    Submitted October 18, 1906.
    (Docket No. 102.)
    Decided November 7, 1906.
    Ejectment by Martha M. Coleman against Ammiel Robens and Maria P. Robens. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Hatch & Anderson, for appellant.

      William JEJ. Ware, for appellees.

       Rehearing denied April 2, 1907.

   Moore, J.

This is an action in ejectment to recover the possession of a strip of land described in the declaration as follows: '

“A piece of land six feet nine, and one-fourth inches wide east and west, on the street line; nine feet and seven inches wide on the south end; eight rods long north and south, off the west side of the following described parcel of land, to wit: That certain piece or parcel of land situate and being in the city of Battle Creek, county of Calhoun and State of Michigan, and described -as follows, to wit: Commencing in the center of Goguac street at the northwesterly corner of land heretofore conveyed by David Coy and wife to John T. Bottomly, by deed dated October 30, 1884, and recorded in the office of the register of deeds for Calhoun county, in book 115 of deeds, at page 192; running thence westerly in the center of Goguac street four rods to the land of Robens (formerly Mrs. Mead’s); thence southerly along the easterly boundary line of said Robens’ land ten rods; thence easterly parallel to said Goguac street four rods; thence northerly to place of beginning.' The west boundary of which said land is the line of an old fence, the evidence of which still remains. Which said premises the said plaintiff claims in fee simple.”

The defendants pleaded the general issue. After the evidence was all in the judge directed a verdict in favor of defendants. The case is brought here by writ of error.

We cannot consider all of the questions discussed by counsel for appellant in their brief because of what is shown in the record. They argue in the brief that plaintiff obtained title to the disputed strip by adverse possession. It is true that, when a witness was testifying, a claim was made hy counsel that, though the fence was not on the line as originally established, the plaintiff gained a right there by 15 to 30 years of occupation; but, after the motion was made to direct a verdict, and before the judge ruled thereon, counsel for plaintiff stated in open court that they made no claim of adverse possession. Disclaiming any claim of adverse possession in the court below, they cannot make it now.

Did the court err in directing a verdict ? The strip in dispute relates to the boundary line between the parties. It is claimed by the plaintiff that prior to 1872 his grantor caused a survey to be made for the purpose of fixing the boundary line, and that, acting upon that survey, a fence was built upon the line so established as a boundary fence, and that it remained there acquiesced in as a boundary line so long that it settled for all time the boundary line. It is plaintiff’s further claim that it was not .until eight or nine years ago that any one questioned where the boundary line was, and the first persons to question it were the defendants. Defendants deny they ever disturbed the boundary fence or the boundary line as fixed as early as 1872. They deny the line was established where plaintiff claims it was. Counsel for defendants say the testimony offered by plaintiff fails to make any case to be submitted to the jury. We cannot agree with counsel. There is testimony tending to support the claim of plaintiff as to the making of a survey as early as 1872 for the purpose of fixing the line, of the building of a fence thereon which was recognized by the parties in interest as a boundary fence for upwards of 20 years. It is claimed by counsel that the cross-examination of the witnesses for the plaintiff does away with the effect of their testimony. We think the most that can 'be said is that whether it did away with the value of their direct testimony was a question for the jury. As to the effect of making a survey for the purpose of fixing a boundary line, the building of a fence thereon, and the long recognition of it as a boundary line, see Smith v. Hamilton, 20 Mich. 433; Joyce v. Williams, 26 Mich. 332; Diehl v. Zanger, 39 Mich. 601; Fahey v. Marsh, 40 Mich. 236; Burns v. Martin, 45 Mich. 22; Beaubien v. Kellogg, 69 Mich. 333; Carpenter v. Monks, 81 Mich. 103; Manistee Manfg. Co. v. Cogswell, 103 Mich. 602; Pugh v. Schindler, 127 Mich. 191.

We do not think it necessary to discuss the other claims of counsel for appellant. They are either not well taken, or the matter about which complaint is made will not occur again.

For the reason stated, the judgment is reversed, and a new trial granted.

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


author: Hookeb, J.

text:
    HOLLIDAY v. MATHEWSON.
    b Mechanics’ Liens — Claim of Lien — Statement—Filing—Service — Sufficiency.
    Delay in serving upon the owner the statement required by section 10713, 3 Comp. Laws, until after the claim of lien required by section 10714 has been filed in the office of the register of deeds, is not fatal to a mechanics’ lien, where the statement is served before the time to file a lien expires, the lien not becoming effective until the statement is served.
    2. Homestead — Building Lot — Mechanics’ Lien — Application.
    Where a husband and father builds a house upon a lot belonging to his father pursuant to a promise that the land will be given to him for a home, and the family, on completion of the house, occupy the place as a home, having no other, and owning no .other real estate, the place is a homestead and the lot is not subject to a mechanics’ lien for a debt incurred in building the house, the wife not having signed the contract for building the house.
    3. Same — Mechanics’ Lien — Removal of Building.
    Where a new house is built upon land to which the owner has not the legal title, but which is devoted to the purposes of a homestead for his family and therefore exempt from a mechanics’ lien for the reason that his wife did not sign the contract under which the house is erected, the lien may attach to the house separate from the land and be enforced by sale and removal of the house ^sections 10710, 10712, 10718, 3 Oomp. Laws).
    Appeal from Genesee; Wisner, J.
    Submitted August 17, 1906.
    (Docket No. 116.)
    Decided November 13, 1906.
    Bill by Franklin E. Holliday against Edward 0. Mathewson and others to enforce a mechanic’s lien. From an order overruling a demurrer to the bill, defendants appeal.
    Affirmed.

      Black & Roberts, for complainant.

      Carton & Bray, for defendants.
   Hookeb, J.

A bill filed to enforce a mechanic’s lien was demurred to. Upon the hearing the parties filed a stipulation^ setting forth the facts of the case, and consenting that they should be considered as incorporated in the bill of complaint for the purposes of the hearing. Stephen Mathewson is the father of Edward C. Mathewson, who is the husband of Lena B. Mathewson. They have two children. Some time prior to the erection of the dwelling house upon the premises described in the bill, Stephen said to Edward, “ If you will build a house for yourself upon the premises [described in the bill], I will give you the lot, and you can have it for your home.” Thereupon Edward made a contract with complainant for the erection of the house in controversy. At that time Edward owned no other real estate, and had no home of which he was owner. He caused this house to be erected for the purpose of making a permanent home for himself and family, and he now lives in said house, and occupies it with his family for a home, and owns no other house, lot, or premises. Lena was not a party to the contract in writing between the parties, but was fully cognizant of its execution by the complainant and took part in and gave advice in relation to the manner of the construction of said dwelling, and about changes and alterations made in the plans, and was fully aware that said contract had been made and was being performed by complainant, and she contributed no money to pay for the same. When the house was nearly completed, the defendant Edward and his family moved into it, where they have resided since.

On July 1, 1903, complainant filed his claim of lien in the usual form with the register of deeds, but at that time he had not served upon the defendants, or any of them, a sworn statement of the number and names of every subcontractor or laborer in his employ, and of every person furnishing materials, giving the amount due or to become due to them for work done or material furnished, as required by statute. It was served upon Edward later; i. e., July 3, 1903. The time within which complainant might file his lien did not expire until July 5, 1903. The bill was filed after December 1, 1903, and at that time Stephen Mathewson held title to the land, not having transferred it to Edward.

The grounds of demurrer are: (1) The claim of lien was invalid because filed before the statutory statement was served. '(2) The dwelling house is the homestead of Edward and Lena Mathewson, and not subject to lien. The demurrer was Overruled, and the defendants have appealed.

We are of the opinion that the delay in serving the statement is not fatal to the lien. No Hen attached by the filing of the claim, but when the statement was served the claim became effective. It is unimportant that the statement was served after the claim was filed. Both were done within the statutory period, and a lien was perfected on July 3d by the service of the statement. There is nothing in the various cases cited inconsistent with this holding. 3 Comp. Laws, § 10714; Sterner v. Haas, 108 Mich. 488; Martin v. Warren, 109 Mich. 584; Barnard v. McLeod, 114 Mich. 73; Wiltsie v. Harvey, 114 Mich. 131; Dittmer v. Bath, 117 Mich. 571; Kerr-Murray Manfg. Co. v. Power Co., 124 Mich. 111.

We are also of the opinion that the lands in question were devoted to the purposes of a homestead under the several cases cited by counsel. Reske v. Reske, 51 Mich. 541; Bunker v. Paquette, 37 Mich. 79; Mills v. Hobbs, 76 Mich. 122; Maatta v. Kippola, 102 Mich. 116. The lot, therefore, is not subject to the Hen, the contract not having been signed by Mrs. Mathewson.

Counsel for the complainant assert that, although the land be a homestead, and was so when the contract for building the dwelling was made, he is entitled to a Hen upon the building under the statute (3 Comp. Laws, § 10712), and that it may be sold and removed from the premises under the decision in Jossman v. Rice, 121 Mich. 270. That case may appear to turn upon subdivision 4 of section 9 of Act No. 179 of the Public Acts of 1891, therein quoted. We held that the land was a homestead, within our prior decisions, and that the wife’s oral consent to the contract for the erection of a new building would not avail to support a lien upon the land. But we also held that, under the statute, Mrs. Rice had a title (i. e., a homestead interest in land, the legal title to which was in her husband and herself jointly) that was not affected by the contract made with her husband, the building being an original one, erected by the contractor, and that a lien attached to the building, and that the building might be sold and removed under the provisions of subdivision 4, .section 9, hereinbefore cited. While that case did not mention sections 1, 3, Act No. 179, Pub. Acts 1891, which have been since continued and are now in force as 3 Comp. Laws, §§ 10710 and 10712, those sections provided for a lien- upon new buildings. Section 9 would not alone cover this case, because here the person contracting for the house had no legal title, though he had a homestead, but section 10712, which was then in existence, would, together with subdivision 4 of section 9, have justified the same holding had there been an absence of legal title. Under the circumstances of that case, there was no occasion to mention section 3, i. e., section 10712. But now we have such' a case, and this case must follow Jossman v. Rice, unless certain changes in subdivision 4, section 9, warrant a different conclusion. Section 9 is principally devoted to the question of priority of liens, and that was true under the law of 1893, by which the Jossman Case was ruled. It refers to liens provided for by earlier sections. While these provided for liens upon buildings, it may be said .that none of them have been expressly held to give a lien for the 'erection of a new building precedence over a homestead right in the same. We have, however, been cited to no case that holds to the contrary. We must therefore hold that the early sections give the fight of a lien upon buildings, or that it was first given by the provisions of subdivision 4, section 9, which provides that such liens (i. e., as are provided in the prior sections) shall attach to the building to which they are furnished or done in preference to any other prior title, etc., to or upon the land, and if furnished in the erection of an original building, commenced since the attaching or execution of such prior title, the building may be sold separately, etc., providing for a procedure. When we consider that section 9 appears to have had for its primary object the declaring priorities, rather than declaring what liens shall attach, and that sections 1 and 3 clearly provide for liens upon buildings, and that section 9 can confer no greater rights against the provisions of the Constitution than sections 1 and 3, we must conclude that the spirit of that decision was that a homestead claim could not be acquired in an original building against a right of lien upon such building; though the contractor has been induced to place it upon land devoted to a homestead. There is justice in such a holding where the building can be moved from the premises. If this is so, the changes which have been made in subdivision 4, section 9, are unimportant. They consist in the insertion of the word “recorded ” before the word “title” in section 10718, and the omission of the provisions relating to the procedure. The several sections may be compared by consulting Act No. 199, Pub. Acts 1893, and 3 Comp. Laws, § 10718.

Being of the opinion that the result in the Jossman Case could have been as consistently reached under sections 1 and 3 (if, indeed, they were not taken into consideration) , as under section 9, and that the Constitution is no greater impediment in the one case than the other, the order will be affirmed, with costs, and the cause remanded for further proceedings.

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


text:
    STOUFFER v. FLETCHER.
    Bills and Notes — Bona Fide Purchasers —Burden of Proof,
    Where, in an action by a transferee on accepted drafts, it appears that the acceptances were obtained from the drawee by the drawer’s fraud, the burden is upon the plaintiff to show that he is a bona fide holder.
    Error to Kent; Wolcott, J.
    Submitted October 9, 1906.
    (Docket No. 21.)
    Decided November 13, 1906.
    Assumpsit by Joseph C. Stouffer against Edward Fletcher and Caroline Fletcher, copartners as E. Fletcher & Company, upon certain drafts. There was judgment for defendants, and plaintiff brings error.
    Affirmed
    This suit is based upon two drafts for $95 each, drawn by the Puritan Manufacturing Company of Iowa City, Iowa, upon the defendants, a copartnership, doing business in Grand Rapids, Mich., under the firm name of E. Fletcher & Co., and accepted by them. One was payable four and the other six months after date. The Puritan Manufacturing Company is a manufacturer of cheap jewelry. Its agent, one McClain, a traveling salesman for the Puritan Manufacturing Company, visited • the defendants, and solicited an order. The defendants are father and daughter. The father was confined to the house from illness, and the daughter managed the business, a small dry goods store. The consideration for these two drafts, with two others executed at the same time, was an order for jewelry. This order was part of a contract which provided that, before becoming valid, it was to be accepted by the Puritan Manufacturing Company, and that company might at its option reduce the amount of the order. Defendants, with their plea, gave notice that they would show upon the trial that the order was obtained by fraud; that the contract was canceled and terminated before plaintiff had acquired any rights thereunder, and that he was not a bona fide purchaser for value before maturity. Plaintiff introduced the accepted drafts, and rested. Defendants gave evidence tending to show that McClain tried to induce defendant Caroline at defendants’ store to give an order; that she declined; that the agent and Caroline then went to the house of defendant Edward, and he refused; that Caroline returned to the store, leaving McClain and her father at the house; that McClain soon returned to the store and informed Caroline that her father had concluded to make the purchase, and, upon the strength of this representation, the order was given by her and a copy of the contract left with her. Returning to the house in a few hours, she informed her father what she had done, and what the agent McClain had said.. The father denied any such agreement. Thereupon, McClain was immediately notified by defendant Caroline of the fact, who demanded the cancellation of the order; that McClain agreed to this, and took up the contract; that some 10 days thereafter the Puritan Manufacturing Company notified defendants of the shipment of the goods. Defendants promptly notified the Puritan Manufacturing Company of the action of their agent, and refused to accept the goods.
    Two special questions were submitted to the jury, namely:
    “Did the plaintiff in this case purchase from the Puritan Manufacturing Company, of Iowa City, Iowa, on January 7, 1905, the two drafts for which this suit was brought, as plaintiff alleges in his deposition, and was the plaintiff the owner of the drafts when this suit was brought ? ■
    “Did the plaintiff have actual notice at the time of such purchase that the defendants in this case claimed that said drafts had been procured through the fraud of the Puritan Manufacturing Company or its agent ? ”
    The first question was answered in the negative, the second in the affirmative. The case was submitted to the jury under instructions as to the law, and a verdict rendered for the defendants.

      Don E. Minor (B. P. Howell, of counsel), for appellant.

      Knappen, Kleinhans & Knappen, for appellees.
   Grant, J.

(after stating the facts). The assignments of error relate to the charge of the court, and the refusals to'give certain requests preferred by the plaintiff. The substance of most of the requests was correctly given in a clear and well-connected charge, a practice, we think, much preferable to reading each, specific request. The evidence was ample to sustain the finding that the order and the drafts based thereon were obtained by false representations, and were void in the hands of the Puritan Manufacturing Company. The court correctly instructed the jury that if they so found, the burden of proof was then upon the plaintiff to show that he was a bona fide holder. This was correct. Berry v. Whitney, 40 Mich. 65; Conley v. Winsor, 41 Mich. 253; Horrigan v. Wyman, 90 Mich. 121; Township of Grant v. Township of Reno, 114 Mich. 41.

The court held, as requested by plaintiff, that this was an Iowa contract. The false representations upon which the contract is based were made in Michigan, and the rules of procedure in our own courts must prevail. The court, however, said to the jury that if the drafts were obtained by fraud, it was then the duty of the plaintiff “in the language of the Iowa statute, to show that he was a holder in due course.” He further instructed the jury:

“ The circumstances coming to the knowledge of the purchaser before the purchase of said instrument must be such as to require that he shall, in good faith, inquire as to the validity of the acceptances, and it is only where the failure to inquire evinces an actual bad faith that such notice is sufficient. * * * It must be shown, either directly or by circumstances that the purchaser had notice of such infirmity. Simple proof of such facts and circumstances as will put a reasonable man upon inquiry-in relation thereto is not sufficient.”

This appears to be the rule in Iowa. Lake v. Reed, 29 Iowa, 260; Lehman v. Press, 106 Iowa, 390. It is strenuously urged by plaintiff’s counsel that the evidence conclusively shows that the plaintiff was a “holder in due course.” On the contrary, there was ample ¡evidence to support the finding of the jury that the plaintiff was not in fact the owner of these drafts, but that they were still owned by the Puritan Manufacturing Company, and that the plaintiff was a mere “stool-pigeon” or “fence,” used for the purpose of avoiding the defense of fraud. The cross-examination of plaintiff afforded evidence sufficient to justify the finding of the jury that he was not a bona fide holder and purchaser of these drafts in due course. But there was other cogent evidence to support such finding. It is unnecessary to state the evidence.

The case was properly submitted to the jury, and the judgment is affirmed.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.


text:
    STOUFFER v. CLARK.
    Bills and Notes — Bona Fide Purchasers — Burden of Proof.
    This case, involving the bona tides of a purchaser of commercial paper, is ruled by Stouffer v. Fletcher, ante, 341, involving the same facts.
    Error to Saginaw; Gage (Chauncey H.), J.
    Submitted October 9, 1906.
    (Docket No. 22.)

    Decided November 13, 1906.
    Assumpsit by Joseph C. Stouffer against William F. Clark upon certain bills of exchange. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      Henry H. Naegely, for appellant.

      Thomas Q. Baillie, for appellee.
   Blair, J.

This action was commenced by the plaintiff to recover on four accepted bills of exchange of $95 each indorsed to the plaintiff by the Puritan Manufacturing Company, alias the Lyon-Taylor Company, of Iowa City, Iowa. Defendant with his plea of the general issue gave notice of failure of consideration and fraudulent representations. There was sufficient proof of fraudulent representations to cast the burden upon plaintiff of showing that he was a purchaser in good faith, and this was the principal question litigated.

Plaintiff contends that there was no evidence to impeach the good faith of his purchase and that, even if there were, the defendant’s remedy was plainly prescribed in the contract contained in the order for jewelry, upon which alone he could rely. Plaintiff also assigns error upon the rulings of the court as to the admission of testimony, and challenges portions of the charge. In its essential features, this case is similar to and ruled by Lyon v. Lindblad, 145 Mich. 588, and Stouffer v. Fletcher, ante, 341.

We find no errors in the charge of the court nor in his rulings as to the admission of testimony, and the judgment is affirmed.

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


text:
    STAPLETON v. SCHAFFER.
    Reformation of Instruments — Deeds—Suit by Grantor.
    A grantor is entitled to have a deed reformed which by mutual mistake includes land not intended to be conveyed..
    Appeal from Livingston; Smith, J.
    Submitted October 9, 1906.
    (Docket No. 28.)
    Decided November 13, 1906.
    Bill by John Stapleton and another against Christopher C. Schaffer and another to reform a deed. From a decree for complainants, defendants appeal.
    Affirmed.

      Louis IS. Howlett, for complainants.

      Shields & Shields, for defendants.
   Blair, J.

The bill of complaint in this case was filed to reform a deed from complainants to defendant Christopher C. Schaffer, on the ground that- by mistake the deed included a strip of land off the west side of complainants’ homestead 17 feet and 6 inches wide at the north end and 14 feet wide at the south end. The description of the deed is as follows:

“Village lots number thirty-five (35) and thirty-seven (37) of Crane & Brook’s Plat in the village of Howell as duly laid out, platted and recorded; also a' piece of land commencing at the northwesterly corner of lot number thirty-four (34) of aforesaid plat, running thence southerly on the westerly line of said lot, to the southwest corner of the same, thence westerly to the southeasterly corner of lot number thirty-five of said plat; thence northerly along the easterly line of said lot thirty-five to the northeasterly corner thereof; thence easterly to the place of beginning.”

The strip of land in controversy in this suit is on the easterly side of the 4x8 piece described above by metes and bounds, and is bounded on the west by .complainants’ west boundary fence, and had been included in and occupied by him as part of his homestead for 39 years. The 4x8 piece was originally laid out as part of a street, hut the street, as actually laid out and worked and used, ended at the east and west street hounding the property on the north, and complainant acquired the unused portion by purchase. The complainant Stapleton is a laboring man over 80 years of age, unable to write; and his son-in-law represented him in the negotiations culminating in the deed. The circuit judge found that the proofs sustained the allegations of the bill of complaint, and entered a decree for the reformation of the deed. From this decree, defendants appeal to this court.

The case involves a question of fact solely. Defendants’ contention that complainants are not entitled to relief, as a matter of law, because not holding under the deed sought to he reformed — citing Ballentine v. Clark, 38 Mich. 395, and other cases — is based upon a misapplication of the principles of those cases. We think it satisfactorily appears from the testimony that the complainant intended to sell, and defendant Schaffer intended to buy, the land west of the fence. The mistake of including a strip east of the fence arose through the mistake of the son-in-law in supposing that the fence was the east boundary of the discontinued street. The defendants’ acts in improving the property and otherwise, after the deed, convince us that he supposed that he had only purchased the land west of the fence.

We think the circuit judge reached the right conclusion, and the decree is affirmed, with costs.

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


text:
      In re FISHBECK’S ESTATE. KNAPP v. JESSUP.
    1. Executors and Administrators — Management op Estate— Liability for Losses — Negligence.
    Where it was understood by the heirs that the administrator should retain funds in his hands for the care of testator’s widow, he is not liable for the loss of the proceeds of a mortgage which he deposited in a bank without negligence, the bank failing three months later.
    2. Same — Burial Place — Vault—Repairs.
    The expenditure of a reasonable amount of money for the erection of a vault in a cemetery and keeping it in repair is a proper charge against the estate of a deceased person, and it is immaterial that the title to the lots on which it is erected is taken in the name of the widow and sons of deceased.
    3. Same — Interest—Collection of Debts — Presumption.
    Where, on settlement of the account of a deceased administrator, it does not appear at what time a mortgage belonging to the estate was paid, the administrator is properly chargeable with interest only to the time of appraisal, there being a presumption, in the absence of proof, that past due debts were promptly collected.

      4. Same — Compensation op Administrator — Statutory Fees.
    The heirs oannot complain of the allowance of the statutory fees to an administrator who promptly collected the funds of the estate, took care of the homestead farm, looked after the care of decedent's widow, and promptly divided to each heir his share of the estate.
    Error to Livingston; Smith, J.
    Submitted October 6, 1906.
    (Docket No. 27.)
    Decided November 13, 1906.
    Grace E. Knapp presented her final account as administratrix de bonis non of the estate of Freeman Fishbeck, deceased. The account was allowed in the probate court, and Alma Jessup and Ida Smock appealed to the circuit court. From the judgment rendered, contestants bring error.
    Affirmed.
    Freeman Fishbeck died July 21, 1882, leaving a widow and five children, — three sons, named William, Charles, and John, and two daughters, Mrs. Ida Smock and Mrs. Alma Jessup. Upon the petition of Mrs. Jessup, Charles was appointed administrator, and filed a bond with John and William as sureties. September 6,1882, an inventory was filed showing an appraisal of personal property of #11,752.47; real estate, #2,500 — total, #14,252.47. The personal property consisted of notes, merchandise, farm stock, tools, and household goods. Charles continued as administrator until his death, March 21, 1903. He never rendered an annual or final account, and no account was found showing an itemized statement of receipts and disbursements. For four years he was also judge of probate. No commissioners on claims were appointed, and no claims were presented to or allowed by the probate judge. His widow lived upon the small farm, the homestead, about 17 acres of which only was improved, until her death in 1892. Her estate was never probated. She had nothing except that to which she was entitled from her husband’s estate. No allowance was made for her support and maintenance, neither was a dower admeasured to her. The small farm was leased, evidently with the understanding on the part of all the heirs, to a tenant, who took care of their mother, with what assistance Charles provided her with out of the estate. Mrs. Smock testified that she was ‘ ‘ perfectly willing that Charles should take whatever needed, and pay it to her. I thought he was doing it.”
    On January 1, 1883, the administrator distributed among the heirs $7,500; April 15, 1885, $1,000; May 20, 1892, $3,250. In all he has distributed to each of his brothers and sisters out of the estate the sum of $3,146.05, making a total, including the same amount to himself, of $15,730.25. Upon the death of the administrator, his daughter Grace Knapp was appointed administratrix de bonis non, and filed an account as near as it could be ascertained of receipts and disbursements by her father. To this allowance Mrs. Smock and Mrs. Jessup objected. The account was allowed by the probate court, and an appeal taken to the circuit court. The trial was there had before a jury. The account as filed showed credits of $19,843.18, and debits amounting to $19,266.28. In this account the jury made one correction, charging the administrator with an item of $355.47. Among the items so allowed was an item of services by the administrator for 21 years of $750. The court, in rendering judgment, reduced this item to the statutory allowance, so that the judgment as rendered made the credits $19,330.37 and the debits $19,266.28. It thus áppears that the administrator had paid out $64.09 more than he received.
    The objections relate (1) to amount paid heirs at law; (2) to a loss by the administrator of funds deposited in a bank known as the “ Weimeister Bank;” (3) to the payment of certain debts without their allowance by commissioners, or by the probate judge acting as commissioner; (4) expenses in erecting the vault; (5) a mortgage known as the “Yelland mortgage;” (6) administrator’s fees; (7) the item of $750, allowed to the administrator as paid to the widow of Freeman Fishbeck.

      Shields & Shields, for appellants.

      Louis P. Howlett and William. P. Van Winkle, for . appellee.
   Grant, J.

(after stating the facts). Freeman Fish-beck left no debts except the expenses of his last sickness, and perhaps two other small items. These were paid by the administrator. The contestants, Mrs. Smock and' Mrs. Jessup, admit in their answer that the charge of 1132.52 for services of physicians during their father’s illness was reasonable and a fair charge, that the funeral expense was also reasonable and a proper charge, and that the physicians’ bills for their mother should be allowed. The holding of this court in Brown v. Porsche, 43 Mich. 492, speaking through Justice Cooley, is applicable to this case:

“A probate case on appeal is to be tried and determined on the same principles that would be administered by the probate court itself. That court,, in adjusting the accounts of administrators, is governed by the broad principles of equity; and it is at all times competent for the administrator, unimpeded by technical rules, to show the fairness of his dealings, the real nature of his transactions, and to restrict the amount for which he should be held liable to that which equity demands.”

This case must be examined and determined upon equity principles. The contestants are presumed to know the law. There is no claim that they did not. The first distribution gave each of the heirs the full amount of the personal property aside from that which should have been assigned to the widow. There was no necessity of administration, except to pay the insignificant amount of the debts and distribute the estate. While there is no evidence of any express agreement between the heirs of Freeman Fishbeck that the estate should be divided without further expense of administration, the conclusion is irresistible that they trusted their brother Charles, the administrator, to divide the estate, which he promptly did, to retain enough for the care of their mother, and to preserve the homestead for her use while she lived. That the administrator faithfully and honestly did this is beyond dispute. Upon the death of the mother the real estate was sold by the heirs and the amount received divided among them.

We will now discuss the several claims of the respondent :

1. Without entering much into detail, we think it is clearly shown by the evidence that both contestants received each the same amount as the brothers received, to wit: $3,146.05. Mrs. Jessup was not a witness, neither was'her deposition taken. The dispute in her case arises over a certificate of deposit for $700. It is sufficient to say that she received it’from the administrator, and it was a payment upon her distributive share. Mrs. Smock claims that her amount is $300 short. This $300 is accounted for by the fact that her husband received it for her, and with the understanding that he received it as a part of her distributive share. She testified: “If my husband got it, I am willing to have it apply on my share.” He testified that he did get it, and that it was to apply on her share of the estate.

2. The administrator deposited money as administrator in the Weimeister Bank. The bank then had good credit and standing in the community. It subsequently failed. The percentage received by the administrator from the bank was promptly divided among the heirs and receipted for by them. There is nothing in the record to show that the administrator was guilty of negligence in so depositing the funds. The law, therefore, does not hold him liable for the loss. In re Grammel’s Estate, 120 Mich. 487, and authorities there cited. It is, however, claimed that the administrator’s estate is liable for the loss, because he was dilatory in the settlement of the estate, and that had he divided the estate seasonably the loss would not have occurred; citing Wood v. Myrick, 17 Minn. 408; Palmer’s Appeal, 1 Doug. (Mich.) 422; 7 Am. & Eng. Ene. Law (1st Ed.), p. 352, and note. This money was received by the administrator in payment of a mortgage on June 18, 1889. The bank failed three months and seven days thereafter. The administrator had the right to retain funds in his hands for the care of his mother, and it was evidently so understood by all the heirs that he should do so. She might at any time apply for her share of the estate. The principle of those cases therefore does not apply.

3. Whether under any circumstances an administrator may pay the debts of the estate, which have not been allowed by commissioners or by the probate judge we find it unnecessary to determine. The administrator kept no regular book account. In a tin box were found some receipted bills and memoranda of payments made by him for various items. Some are dated and some are not; the receipted bills not being printed in the record and the date not given. They were in evidence before the jury and the court. All the record shows in regard to the item of $35.50 for merchandise, purchased from Hickey & Goodnoe, appears from a witness who produced the papers from the tin box. After testifying, to certain small items, consisting of repairs upon the barn, dated July 12, 1892, the witness said: “The next item of merchandise to Hickey & Goodnoe, $35.50, I got from the items in the tin box.” Its date is not shown, and we cannot determine whether it was incurred by the deceased in his lifetime, or expended by the administrator for the support of his mother, or for repairs. As already stated, the answers of the respondents conceded the correctness of the services for medical attendance. This concession eliminates them from consideration. Aside from these items, the amount is so small that it is not equal to the balance due the administrator as allowed by the court. -

4. The administrator was allowed $450 for the construction of a vault, and subsequently other items were allowed for repairing it. The three brothers contributed $200 apiece out of their own funds towards its construction. Mrs. Jessup subsequently contributed $100 towards repairing it. This repair was necessary for the preservation of the vault and the bodies there reposing. The erection of the vault was in accordance with the expressed wish of the father. The amount was reasonable and was properly allowed. Jackson v. Leech’s Estate, 113 Mich. 391. To construct, a vault for the repose of the dead is as proper as the erection of a monument. In re Shipman’s Estate, 82 Hun (N. Y.), 108. The two cemetery lots were purchased on which to erect the vault. The title of one lot was taken in the name of the mother. The title of the other was taken in the name of the three sons and the mother. It is immaterial that the title to the lots was taken in the names of the mother and the sons. Birkholm v. Wardell, 42 N. J. Eq. 337. The expenditure of a reasonable amount of money to keep the vault in repair was a proper charge against the estate. Bell v. Briggs, 63 N. H. 592.

5. One of the assets of the estate was a mortgage, dated February 27, 1877, due five years from date, and given by one Yelland for $700. This mortgage was found among the papers of the administrator after his death. The administratrix with the will annexed, in the honest belief that this had not been paid, commenced foreclosure suit. The bill was dismissed; the court finding that the mortgage had been paid. The foreclosure proceedings are not in the record, and it does not appear when the mortgage was paid to the administrator. He was charged with the face of the' mortgage and the interest up to the time of the appraisal of the assets of the estate. It is stated in the brief of counsel for the appellee that the court found that the mortgage must have been paid soon after the death of Freeman Fishbeck, or soon after it became due-. Why it was not discharged does not appear. In the absence of proof, the presumption is that past-due debts of the estate were promptly collected by the administrator. The court so held. It follows that the administrator is not chargeable with interest on this item.

6. The administrator was allowed the statutory fees. Considering that the administrator collected the funds of “this estate, took care of the farm, looked after the care of his mother, and promptly divided to each his share, the court might with propriety have allowed some extra compensation. The petitioners cannot justly find fault with the allowance of the statutory fees.

7. It is evident that the mother could not be properly cared for upon the income from the little farm on which she lived. It is shown from the memoranda made by the administrator found in the tin box that from July, 1882, to October 4, 1884, he paid her cash amounting to $171.75. In making out the account the administratrix de bonis non credited him with $75 a year for the benefit of the mother. We think the evidence justifies this allowance.

8. It is entirely clear that the administrator acted with promptness in the collection and distribution of the estate among his brothers and sisters; that by the assent of all he provided for his mother, took her to his home during her last illness, paid her physicians’ bills and funeral expenses; and that after her death he promptly divided among them what he had retained for her support. It is impossible to read this record without reaching the conclusion that he acted honestly, that none of the estate remained in his hands, and that all understood that the entire estate was divided. The contestants and their bi’others were intelligent, were fully cognizant of their rights, and it is impossible to believe that they would have waited 20 years after the death of their father and 10 years after the death of their mother, if they had supposed that their brother still retained in his hands moneys belonging to them. Undoubtedly the discovery of the Yelland mortgage after his death caused the proceedings for the appointment of an administratrix de bonis non. It proved that there was no estate left to administer.

The judgment is affirmed.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.