author: Bird, J. Kuhn, J.

text:
    HILDEBRANDT v. DETROIT UNITED RAILWAY.
    1. Street Railways — Personal Injuries — Crossing Accident— Contributory Negligence — Directed Verdict.
    In an action for personal Injuries received by the driver of a delivery wagon while attempting to cross defendant’s street car tracks, where, instead of continuing across the tracks when his horse regained his feet, after a stumble, he turned and drove along the track for a distance of 45 feet before being struck by the car, when one-third of the distance traveled would have taken him safely across, his conduct was so contrary to what the average man of ordinary prudence .would do under similar circumstances as to constitute contributory negligence as a matter of law.
    2. Same — Discovered Danger — Last Clear Chance — Evidence— Gross Negligence.
    In the absence of any evidence showing bow fast the car was running, or that it could have been stopped after its motorman discovered plaintiff’s danger, tbe claim of subsequent negligence is not sustained. Ostrander, C. J., 'and Stone, Kuhn, and Moore, JJ., dissenting.
    Error to Wayne; Brown, J., presiding.
    Submitted June 19, 1917.
    (Docket No. 83.)
    Decided March 27, 1918.
    Case by Joseph. Hildebrandt against the Detroit United Railway for personal injuries. ‘ Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed by a divided court.

      John H. Dohrman and Eugene L. Mister sky, for appellant,

      Corliss, Leete & Moody and Benjamin S. Pagel, for appellee.
   Bird, J.

Plaintiff was engaged in delivering bread to the retailers in the city of Detroit with a horse and delivery wagon. On December 22, 1914, he had made his early morning deliveries and was on his way home, traveling east on Theodore street. It was snowing and there were several inches of snow on the ground which made it more or less slippery. As he approached Grandy street, which crosses Theodore, his View to the south was cut off by a cigar factory situate on the southwest corner of Theodore and Grandy streets. Knowing that defendant’s cars ran north on Grandy street, he got out upon the running board to make observations toward the south. When he got far' enough east to observe the track, he saw a car approaching something more than a block away. He proceeded to the track and started across, but just-as his horse was entering thereon he slipped and fell to his knees. By the time the horse had regained his feet plaintiff concluded he could not get across because the car was only three houses away, so he signaled to the motorman and turned his horse to the left and north and went up the track on Grandy street about 45 feet, at which point the street car collided with his wagon, striking it a glancing blow on the right side where plaintiff was standing. The impact threw plaintiff from the wagon and injured him.

Plaintiff counts in his declaration on the negligence of the defendant in operating the car at an excessive rate of speed,' in violation of the ordinance of the city, and for the failure of its motorman to slow down and stop the car after he discovered the position of plaintiff.

The trial court was of the opinion that plaintiff’s own testimony showed that he was guilty of contributory negligence, and upon that ground he directed a verdict for the defendant.

1. In defending plaintiff from the charge of contributory negligence his counsel invoke the rule that:

“Where, in the exercise of common prudence, a person may reasonably think there is time to cross a street railway safely, he is not chargeable with negligence in attempting it. Ryan v. Railway Co., 123 Mich. 597; Chauvin v. Railway, 135 Mich. 85; Gaffka v. Railway, 143 Mich. 456; LaLonde v. Traction Co., 145 Mich. 77.” Seebach v. Railways Co., 177 Mich. 1.

If plaintiff were guilty of contributory negligence as a matter of law, it did not lie in his attempt to cross the track when the car was a block away (Purulewski v. Railway, 181 Mich. 133; Millette v. Railway, 186 Mich. 634), but it lay in his failure to go on across as he had started instead of turning to the left. He says he thought he did not have time to cross and therefore turned his horse and drove in a northerly direction parallel with the track a distance of 45 feet. His own testimony on this phase of the case is of interest :

“When his front legs were on the car track the horse was walking, a good walk. The car was then about 3 houses off. It was then going too fast to get over. 90 feet away from me when the'horse’s front feet were on the car track and I saw the car was coming too fast to get all the way over. I then turned my horse on the left side and started to holler. When my horse was struck I was passing Theodore and driving up Grandy. My horse was up Grandy about one house when I was struck. My horse walked 20 feet to the car track and then up Grandy past one house or opposite one house while this car was running 90 feet. It was about 30 feet up Grandy from the north corner of Theodore street where I was struck and my horse was walking all the time. I could not stop my horse and back him off the track when I could see that the street car was 90 feet away and coming too fast because it was awfully hard to back up in the snow.
“Q. Yet it wasn’t awfully hard for him to walk up to that house 30 feet past Grandy?
“A. I thought I would be safe.
“Q. You had time — the horse had time to walk 30 feet up Grandy — up Theodore, before he was struck?
“A. Yes, sir.”

Something must be, and is, allowed for error of judgment in such cases but the exercise of judgment which prompts one to turn and drive along a track for a distance of 45 feet to avoid an approaching car when a third of the distance would have taken him across the track to a place of safety, is so contrary to what the average man of ordinary prudence would do under similar circumstances that we think plaintiff’s act should be declared contributory negligence as a matter of law.

Plaintiff cites the cases of Purulewski v. Railway, and Millette v. Railway, supra, in support of his contention. It is true that these cases involved error of judgment in crossing a street railway track but in both cases the drivers proceeded to cross and would have crossed in safety had not fortuitous circumstances, combined with defendant’s acts of commission and omission, intervened and prevented. If plaintiff had proceeded across the track and his wagon had been struck by reason of his delay due to his horse stumbling, the foregoing cases would sustain his contention that he had a right to go to the jury on the question of contributory negligence, but instead of doing this plaintiff chose a course which from any aspect would have taken him longer to clear the track than to go across. We agree with the trial court that plaintiff was guilty of contributory negligence as a matter of law.

2. The claim of subsequent negligence was not sustained. There was no showing how fast the car was running nor was there any showing that the car could have been stopped after its motorman discovered that plaintiff was unlikely to clear the track. The judgment of the trial court is affirmed.

Steere, Brooke, and Fellows, JJ., concurred with Bird, J.

Kuhn, J.

I concur in the conclusion of Justice Bird that, under the circumstances of this case, the plaintiff should be held guilty of contributory negligence as a matter of law, but I am unable to concur in his holding that there was not sufficient evidence of the claim of defendant’s subsequent negligence to submit that question to the jury. It is said in his opinion:

“There was no showing how fast the car was running nor was there any showing that the car could háve been stopped after its motorman discovered that plaintiff was unlikely to clear the track.”

While the record does, not disclose the exact speed at which the car was running, in my opinion there was sufficient evidence to sustain the claim that it was running at a high rate of speed. In the consideration of the question whether, under the circumstances, a verdict should have been directed, the evidence in support of plaintiff’s claim must be considered in the light most favorable to his. contentions. Mr. Hildebrandt, the plaintiff, testified that he had gone about 30 feet up Grandy avenue when the car struck the wagon, and the street car, after striking him, carried him some distance — the exact number of feet is not disclosed by the record. If the motorman had his attention upon the condition of the track in front of him, the claim seems reasonable that he did see, or should have seen, the plaintiff with his wagon in the predicament that he was in. The record shows that the horse slipped and fell several times just as he reached the first rail of the track, and that it must have taken some time for the plaintiff to have pulled' the horse around on the track and for the horse to have traveled 30 feet before he was struck. According to the testimony of plaintiff’s witnesses, during this time no effort was made by the motorman to get his car under control, but it struck the plaintiff’s wagon at full speed. In my opinion the situation here presented comes within the ruling of this court in Walter v. Railway Co., 191 Mich. 181, in which opinion a large number of authorities from this State are cited, holding that, under similar circumstances, a question of fact for the jury was presented.

The judgment should be reversed and a new trial ordered.

Ostrander, C. J., and Moore and Stone, JJ., concurred with Kuhn, J.


source: Caselaw Access Project

author: Bird, J. Ostrander, C. J. Fellows, J.

license: Public Domain

text:
    PAINE v. SAULSBURY.
    Corporations — Dissolution—Statutes. '
    Where, on. appeal by minority stockholders from a decree of the court below, granting the dissolution of a mining corporation, under sections 13563, 13577, 3 Comp. Laws 1915, it appears that it is a solvent, prosperous, going concern with a large cash surplus, and it does not appear to be the intention to discontinue the business of mining and distribute its assets among the stockholders, but the effect would be that a holding corporation would acquire, by force of dissolution, the stock of the minority stockholders, which it was unable to acquire by purchase in the open market, the decree of the court below will be reversed. Fellows, J., dissenting.
    Appeal from Houghton; O’Brien, J.
    Submitted June 15, 1917.
    (Docket No. 50.)
    Decided March 27, 1918.
    Petition by William A. Paine and others for the dissolution of a mining corporation. From a decree for petitioners, Willard É. Saulsbury and another, minority stockholders, appeal.
    Reversed.

      Stone, WiecLer & Schulte (Dan H. Ball, of counsel), for petitioners.

      J. F. Hambitzer and Hugh M. Morris, for appellants.
   Bird, J.

In pursuance of a resolution adopted by the directors of Trimountain Mining Company, they filed their petition in the Houghton circuit court, on October 25, 1916, praying for an order dissolving said corporation. The resolution is as follows:

“Whereas, the average annual net earnings of this company for the 14 years next preceding the present year have been only $2.22 for each share, without making aiiy deduction for depletion of the mineral deposits in its mine;
“And, Whereas, the Copper Range Company, operating mines adjoining that of this company, is the holder of more than <99/100 of the capital stock of this company, and has offered to buy from the holders thereof the remainder of said stock and to issue in payment therefor, an equal number of shares of its own stock, which offer the holders of said stock refuse to accept, although the net earnings of the Baltic mine, one-half of the net earnings of the Champion mine, and the net earnings of the Copper Range railroad, all of which belong to said Copper Range company, have been, for said 14 years previous, and still are, nearly twice as much per share as the net earnings of this company;
“And, Whereas, said Copper Range Company has offered, and still offers, to bind itself to bid for the mine and property of this company, in case of dissolution and public salé of its property, the sum of $6,000,000, amounting to $60 per share of its capital stock;
“And, Whereas, the earnings of this company as aforesaid, amount to only 3 7/10 per cent, per annum on the sum that would be realized on such sale, if made on the bid of said Copper Range Company, and will cease with the exhaustion of the mine, while the money so realized on such sale would yield at least 5 per cent, interest in perpetuity, thus yielding a larger annual return in perpetuity to each stockholder than can be realized by them from the operation of the mine for only a limited period;
“And, Whereas, this company has no railroad for the transportation of its rock to stamp mill, and is dependent upon the Copper Range railroad therefor;
“And, Whereas, the stamp mill of this company has been destroyed by fire, making it necessary to build a new mill, at an expense of about $500,000, if it continue to operate its mine, or to pay for the treatment of its rock, in either case materially reducing its earnings, at least until a new stamp mill can be built;
“Therefore, Resolved that the directors of this company deem it highly beneficial to the stockholders that it should be dissolved, and that its mine and other property be sold under decree of court and that the proceeds thereof be distributed among the stockholders.”

Saulsbury and Foley, the respondents, answered, denying certain conclusions stated in the petition, and denying that the resolution of the board and petition contain sufficient reasons why the company should be dissolved. - And they charge that because of interlocking directors in the Trimountain and Copper Range companies, the directors of Trimountain company were in no position to act or vote on the foregoing resolution.

At the hearing some additional facts to those set up in the petition were shown, which are in substance:

(a) That respondents bought their stock consisting of 300 shares as an investment prior to the year 1900, and they have ever since held it as an investment, believing that it was a good investment, and are desirous of retaining it.

(b) That four of the directors of Trimountain company are directors and constitute a majority of the board of directors of Copper Range company. That the four directors have only nominal interests in the Trimountain but have large investments in Copper Range.

(c) That the Trimountain Mining Company produced 8,302,896 pounds of refined copper in the year 1915, and 8,720,000 pounds in the year 1916.

(d) That the company’s net earnings in 1915 were $654,746.52, and that it earned over 12 per cent, in 1916, and no dividend was paid in either year.

(e) That at the time of the hearing its cash surplus over and above its indebtedness amounted to approximately $2,000,000, which stood to its credit in a Boston National bank.

(/) That the outlook for the production of copper is very promising and the price received therefor higher than for many years.

(g) That within recent years the mine has been developed and is now fully equipped with modem iron shaft houses, boiler houses, stores, mine residences and' numerous other buildings at its stamp mill site and at its mine site, and that the mine has been sunk to a considerable depth and miles of drifting has been done through the lode to develop and locate the copper deposits.

(h) That Copper Range Company is not a mining corporation but a holding company, owning at the present time all of the Baltic, one-half of the Champion, and all of the Trimountain except the 300 shares owned by respondents. That it also owns all of the stock of the Copper Range railroad.

These proceedings are statutory and are dependent upon chapter 40 of the judicature act (Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, §§ 13563-13577). This law first came into our statutes by force of Act No. 56 of the Laws of 1839, and has remained without substantial change until the present time. The principal use made of the statute during the intervening years has been to aid in dissolving corporations that were insolvent, or in failing circumstances, or where the object for which they had been incorporated was at an end. The act is now invoked to aid in dissolving a solvent corporation, a prosperous going concern .with a large cash surplus. These circumstances make it incumbent upon the court to examine the reasons stated in the petition for dissolution with much closer scrutiny than it would had the question of insolvency or threatened insolvency been involved. (White v. Kincaid, 149 N. C. 415, and cases cited.)

That part of the. act calling for construction is sections 1 and 4.

“Section 1. Whenever the directors, trustees or other officers having the management of the concerns of any corporation, or the majority of them, shall discover that the stock, property and effects of such corporation have been so far reduced by losses or otherwise, that it will not be able to pay all just demands to which it may be liable, or to afford a reasonable security to those who may deal with such corporation, or whenever such directors, trustees, or officers, or a majority of them, shall, for any reason, deem it beneficial to the stockholders that such corporation should be dissolved,, they may apply by petition to the court of chancery for the county wherein said corporation is located for a decree dissolving such corporation, pursuant to the provisions of this chapter: Provided, that the provisions of this chapter shall not extend to any incorporated library or lyceum society; to any religious corporation; to any incorporated academy or select school not organized for pecuniary profit; nor to the proprietors of any burying ground incorporated under the laws of this State.”
“Section 4. On the day appointed in such order such court or circuit court commissioner shall proceed to hear the allegations and proofs of the parties and shall take testimony in relation thereto, and in case of a circuit court commissioner shall, with all convenient speed, report the same to the court with a statement of the property, effects, debts, credits, engagements and conditions of such corporation. Upon said hearing before the court or upon the coming in of the report of the circuit court commissioner, if it shall appear to the court, that such corporation is insolvent or that for any reason a dissolution thereof will be beneficial to the stockholders and not injurious to the public interest, a decree shall be entered dissolving such corporation and appointing one or more receivers of its estate and effects; and such corporation shall thereupon be dissolved and shall cease.” * * *

Both counsel have devoted much space in their briefs to,the precise physical and financial condition of the Trimountain company; also its relative value to the Copper Range company. The purpose of petitioner in so doing was to show that the offer of exchange made to respondents was a fair and equitable one. From the same data respondents’ counsel argue that the offer is inequitable and unfair. We shall not attempt to follow counsel in these discussions, but will content ourselves with the conclusion, which is amply supported by the testimony, that the Trimountain company which is sought to be dissolved is a solvent corporation, a prosperous going concern, earning large dividends at the present time and capable of earning a reasonable return on the capital invested for many years to come.

Counsel are not in accord as to the power of the court to inquire into the motive of the directors in asking for a dissolution under a statutory provision like the present one. The rule of construction in such cases has been stated as follows:

“At the present time there are statutory provisions in many jurisdictions in this country and in England which expressly provide for the voluntary dissolution of business corporations at the instance of the directors, usually with the consent of a certain proportion of the stockholders. Such a statutory provision enters into every charter, and every stockholder takes and holds his stock subject to this power of voluntary dissolution, and when the board of directors have determined, in their best judgment, that the corporation should be dissolved, and are pursuing the methods specified by the statute, it is only in rare and exceptional cases that their action will be stayed or interfered with by the courts. On the other hand, if it clearly appears that the action is in bad faith, that the resolution for dissolution has been superinduced by undue influence or fraud, or if it is clearly established that the resolution was not taken for the benefit of the corporation or in furtherance of its interest, but for the mere purpose of unjustly oppressing the minority of the stockholders, or any of them, and causing a destruction or sacrifice of their pecuniary interests or holdings, giving clear indication of a breach of trust, such action may be restrained.” 7 R. C. L. p. 709, citing White v. Kincaid, supra.

In the last case cited, after stating the foregoing rule, it is observed that:

“Such cases almost invariably arise when the management of a solvent concern, going and prosperous, ceases operations and determines to dissolve and sell out, with, a view of continuing the same or similar business under different control, and when there is indication given that the sole purpose was to oppress some of the stockholders and confiscate their holdings, or when it is done in furtherance of some scheme to promote the pecuniary interest of the actors, and to the detriment of the corporation, giving indication of a breach of trust on the part of the authorities in charge and control of the corporate affairs.”

The testimony of directors Paine and Denton, together with the frankness of counsel, are very persuasive that the sole purpose of the application is to get rid of respondents as stockholders and acquire their holdings, and that, had the Copper Range company been able to purchase or exchange its own shares for respondents’ holdings, the petition would never have been filed. The testimony of Mr. Painé shows that the Copper Consolidated Company, a New Jersey corporation, and predecessor of the present Copper Range Company, began to acquire Trimountain mining stock in the year. 1903; that in that year a large amount of stock was acquired by exchange of shares. That the offer was renewed in the year 1915 in order to acquire the balance of the outstanding stock, the offer being to exchange Copper Range stock for Trimountain stock, share for share, and that all of the stockholders of Trimountain accepted the offer save these two respondents. Upon this phase of the case a portion of. the cross-examination of Capt. Denton is interesting. He testified that:

“The matter of dissolving the Trimountain Mining Company was talked over by the directors of the two companies. It would be mutually advantageous and I presume would be the better way to get the outstanding stock. We were advised that that would be the better way to get the outstanding stock. Buy the whole thing. I think that is it essentially, we advised the directors of the Copper Range and the directors of the Trimountain that it would be a good plan. It was a mutual arrangement made at one time. We only had to see the directors of the Copper Range, only had to see two of the directors of the Trimountain who were not on the Copper Range directorate. Four of us are directors on the Trimountain and Copper Range. The majority of the Trimountain directors were directors of the Copper Range and were dealing with the Trimountain as directors of the Copper Range with themselves as directors of the Trimountain. That was the situation. * * * Yes? it is still the desire of the Copper Range to acquire title to the Trimountain and I have encouraged the action of the Trimountain directors.
“Q. But you do know the Trimountain can be made a profitable mine?
“A. I think we have made it profitable.
“Q. You have made it profitable already, and were it not for the fact that the Copper Range Company desired it in connection with its own operations, if it stood alone without any mine near it, you would still think it a mine that could be profitably worked if well managed?
“A. Certainly, it is a profitable mine and should be operated.
“Q. That is standing alone and without anything else, you would not think it should be dissolved and the proceeds divided?
“A. Not standing alone. It should be operated.”

We, therefore, have before us a petition to dissolve a corporation under the statute in order that a holding company, another corporation, may acquire, by force of dissolution proceedings, what it has been unable to acquire by purchase or exchange in the open market. It does not appear to be the intention to dissolve the corporation and discontinue the business of mining and distribute its assets among the stockholders, because beneficial to them, nor does it appear to be desired because of any inherent physical or financial weakness in the organization or its property, but it appears to be desired for the reason that the Copper Range Company may become the owner of all the shares instead of a portion of them. The idea back of this desire is said to be that the cost of operation can be materially reduced if the property can be operated as a unit with Baltic and Champion. This may be so and perhaps is commendable as a business proposition, but it is no measure of respondents’ rights. The respondents made their investments when the mine was more or less of a speculation. They have been loyal and retained their investments through the years of physical development and financial vicissitudes, and now when the project has proved to be a success, if counsel’s contention is to prevail, they may be driven out by a forced sale of their investment for no better reason than that a larger stockholder desires to acquire it in the interest of economy. It is not conceivable that the legislature ever intended that the statute should be used for such a purpose. To give the statute this construction would open the way to the majority interest of every corporation in the State to dispose of an offensive minority in the same way if it saw fit. Such a construction would be injurious to the public interest and not beneficial to the stockholders as a whole. For a similar case upon the law and facts and one which answers many of the arguments of the petitioner in this case, see Theis v. Gas Light Co., 34 Wash. 23.

Counsel have argued the second contention of respondents that the petition is of no legal force because after the four interlocking directors had sat around the Copper Range table and determined that it was for the best interest of the Copper Range company to acquire all the shares of the Trimountain company, they were in no position, mentally, to gather around the Trimountain table and determine what was best for that company. As our view of the first question disposes of the case it will be unnecessary to consider this one further than to say that the action of the directors in this respect has contributed to our conviction that the application is not a good faith application under the statute.

The order of the trial court must be set aside and the prayer of the petition denied. Respondents will recover their costs in both courts.

Brooke and Kuhn, JJ., concurred with Bird, J.

Ostrander, C. J.

The peculiar facts, in this case lead me to concur in the result reached by my Brother Bird.

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

Fellows, J.

{dissenting). I do not agree with the conclusion reached by Mr. Justice Bird in this case. As I conclude that the decree appealed from should be modified and affirmed it becomes necessary to notice the legal objections made to it. These objections are two and only two in number: j

First. That a solvent corporation may not be dissolved under this statute.

Second. That these proceedings must fail because a majority of the Trimountain board of directors are also directors of the Copper Range.

I think it unnecessary that we decide the frequently mooted question of whether a court of equity has the inherent power, independent of the statute, to order the dissolution of a going concern. The courts are not in entire accord on this question, and many of the authorities cited by defendants are cases where individual stockholders have sought by bill in equity to take the management of solvent concerns out of the hands of the board of directors, place them in the hands of a receiver, dissolve the company, and wind up its affairs through the courts. With reasonable unanimity it has been held that only in exceptional cases may this be done. I think, in the consideration of these cases, we should constantly keep before us the manner in which the question has arisen, lest we are led to believe that the trend of decision is against the power of a court of equity to dissolve a solvent corporation, and overlook the fact that in these cases the court is dealing with its inherent power and not with a power conferred upon it by statute, and where the proceedings are instituted by the managing board of the corporation. Nor should we, on the other hand, follow that line of cases cited by the plaintiffs, where the courts have held that when the statute required a dissolution on the vote of a certain percentage of the stockholders, the right to dissolve is absolute on the requisite percentage of stockholders casting their votes .for dissolution, irrespective of the motives of the stockholders. Neither of these two lines of cases is controlling here. Under this statute neither the stockholders in any percentage, nor the board of directors have the power to dissolve the corporation. The sole power of the managing board, as we shall presently see, is to initiate the proceedings. The power, and the only power, to dissolve rests in the court and it rests nowhere else. The court may decree dissolution if the corporation is insolvent, but this is not the limit of its power. It may also decree dissolution if “for any reason a dissolution thereof will be beneficial to the stockholders and not injurious to the public interest.” The court may dissolve in case of insolvency, and it may also dissolve when beneficial to the stockholders, whether insolvency exists or not.

“Beneficial to the stockholders.” Does this contemplate that the court may not act and ought not to act where it is beneficial to over 99 per cent, of the stock? Where this per cent, of stock will be greatly benefited and the rights of the balance may be fully protected, simply for the reason that the small minority object, and object for no more substantial reasons than are given in the evidence offered by them, that they have held the stock a long time and do not want to exchange it for Copper Range and want the Trimountain to continue as a separate company.? I think not. One who purchases stock in a corporation buys it knowing that it is subject to all the laws of the State, including the one under consideration. An examination of some of the authorities will be helpful. We naturally turn to the New York cases first, as our statute is taken from that State. In the case of In re Niagara Ins. Co., 1 Paige, 258, the owners of three-fourths of the stock favored the dissolution, one-ninth opposed it and the balance were indifferent. The chancellor ordered the dissolution and announced the rule which was to guide in such cases, in the following language:

“The court is not bound to decree a dissolution merely because a majority of the directors and stockholders request it to be done. But when the owners of a very large proportion of the stock find it for their interest to vest their capital in something more productive, it is strong evidence that the interest of the stockholders generally will be promoted by allowing them to withdraw their capital.and discontinue the business of insurance. In such a case, the particular interest of the few must give way to the general interest of the many.”

In Hitch v. Hawley, 132 N. Y. 212, the statute was under consideration and it was said by the court:

“Where, however, a majority of the trustees favor dissolution ‘for any reason,5 whether relating to the management or not, and it appears that ‘for any reason5 a dissolution ‘will be beneficial to the interests of the stockholders and not injurious to the public interests, the court must make a final order dissolving the corporation.5 As it is not claimed that the public interests are here involved, the only question is whether the facts permitted the conclusion that a dissolution would benefit the stockholders. * * * The benefit meant is a pecuniary benefit, either direct or indirect.”

This case is also authority to the point that the opinion of the owners of a majority of the stock is of prime importance.

A very interesting and recent case is Bowditch v. Jackson Co., 76 N. H. 351, where several of the questions here involved are discussed. Mr. Justice Peas-lee, speaking for the court, there said:

"The plain common-sense of the matter is that this is a business venture, to be carried on as such so long as it appears to be good business judgment to do so. When the time comes that a majority in interest believe that their affairs should be wound up and the proceeds distributed, the rational rule is that this should be done. And since the question here is. of a business nature, and the limitations of the power of the majority are fixed by the understanding of the business men who made the original compact, business considerations have more than ordinary weight in determining what the contract was.”

Speaking on the question of the power to dissolve a solvent corporation, he said:

“If the majority may sell to prevent greater losses, why may they not also sell to make greater gains? Bearing in mind that this is purely a business proposition, with no public rights or duties involved, there seems to be no substantial difference between the two cases, as a matter of principle. In each case, the sale is made because it is of advantage to the stockholders.”

In State v. Woolen Mills Co., 115 Tenn. 266, the court dissolved a solvent corporation, one just organized and before it had entered upon its business. I quote the syllabus:

“A majority of the stockholders in a private business corporation may voluntarily surrender the charter, and abandon, discontinue and dissolve the corporation upon terms of equality to all stockholders over the protest of the minority stockholders before the corporation had purchased any property, incurred any debts, or accomplished anything more than a temporary organization, and where it appears that the stockholders would not be materially prejudiced or financially injured by the dissolution and discontinuance, except as to prospective and speculative profits; and the dissolution will be decreed by the court in a proper suit for that purpose in order to avoid future complications and possible liabilities.”

See, also, Treadwell v. Salisbury Manfg. Co., 7 Gray, 393; Trisconi v. Winship, 43 La. Ann. 45.

The case of White v. Kincaid, 149 N. C. 415 (23 L. R. A. [N. S.] 1177), cited by my Brother Bird, was a bill filed by an individual stockholder to restrain dissolution of a solvent corporation by its board of directors. The court declined this relief. I quote the syllabus:

“The courts will not, save in rare and exceptional instances, interfere at the suit of minority stockholders of a corporation with proceedings of a majority to dissolve it as authorized by statute.”

I think the case of Theis v. Gas Light Co., 34 Wash. 23, also cited by my Brother Bird, is clearly distinguishable from the instant case. In that case, without any benefit to any one, the old corporation was dissolved and a new one created to get rid of plaintiff, the owner of 8 shares of stock, who was styled an uncongenial minority stockholder. In the instant case, as I shall presently discuss, the owner of 99.7 per cent, of the stock of the Trimountain will be benefited to the extent of many thousands of dollars. Indeed, the opinion of Mr. Justice Bird concedes it to be “commendable as a business proposition,” but thinks it does not measure defendants’ rights. Reliance is had in the Theis Case on section 670, 3 Cook on Corporations (7th Ed.), and Kean v. Johnson, 9 N. J. Eq. 401. An examination of Mr. Cook’s work shows that the section there relied upon is found in the chapter, on “Ultra Vires Acts and Contracts,” where the author was considering the power of the directors to sell all the corporate property, while in the chapter on “Dissolution,” he says:

“There has been much doubt as to whether minority stockholders may prevent a dissolution under a statute, where the purpose is to sell the property to another company. The weight of authority seems to hold that such a dissolution is legal, if no actual fraud is shown and if a public sale of the property is provided for.” 2 Cook on Corporations (7th Ed.), § 629.

The New Jersey case cited in the Theis Case was considerably weakened by what was said by the same court in Black v. Canal Co., 22 N. J. Eq. 130 (see p. 404). I do not think the Theis Case should be followed under the facts in the instant case.

It is fair to assume that upon a receiver’s sale of the Trimountain property, in all human probability the Copper Range company will be the purchaser. This company, by reason of the situation, can afford to pay more for it than any other company or any individual. The Trimountain lies between two of its subsidiary companies, the Baltic and Champion. By doing this the overhead expense of maintaining duplicate organizations, a very large sum under existing conditions, may be avoided. -It appears^ that the Baltic has a capacity at its stamp mill to accommodate the output of the Trimountain, and by a dissolution the expense of building a stamp mill on the Trimountain will be saved. It is admitted that this expense would be at least $500,000. Of this sum the majority stockholders would have to pay nine hundred and ninety-seven one-thousandths, or $498,500, while defendants' would have to pay but $1,500. Are the rights of these minority contestants of such overweening and paramount importance as to justify a court of equity in laying upon the majority stockholder this enormous and wholly unnecessary expense in order that they may continue to hold the stock ip the Trimountain instead of having the full value of such stock paid them in cash to be used for other investment? In other words, are the rights of these 3/10 of one per cent, of the stock of this corporation so sacred that the other 99 7/10 per cent, must expend nearly half a million dollars in order to keep the old company intact? Is a court of equity justified in requiring this useless expense of half a million of corporate funds? I think not. There are 100,000 shares of stock in the Trimountain company; the Copper Range owns 99,700 of them, defendants 300. If this entire stock was held equally in 100 share blocks there would be 1,000 shareholders. If such were the case would a court of equity turn a deaf ear to. 997 of the shareholders if they were asking a dissolution in the interest of economy in management, economy in the expenditures I have noted and others which might be mentioned, and listen only to the three shareholders who might desire, as a matter of sentiment, to keep the old company going, to say nothing of the opportunity for holding up the majority stockholders, thus exacting a fancy price for their fraction of one per cent, of stock? What difference is there in the underlying principle, whether the majority of the stock is held by 997 shareholders or by one? None whatever. It appears beyond question, upon this record, that it is beneficial to the overwhelming majority of the stock that this dissolution take place.

I am persuaded that defendants would also be benefited by a dissolution of this company, and the sale of its property at the present time. It is a good time to sell property when there is an .anxious purchaser ready to buy. This record discloses that the copper industry is now enjoying an unprecedented era of prosperity. How long this will continue no one can foretell. This property is now actually worth and will sell for more cash than ever before in its history. We are dealing with a business proposition, not with theories or speculation; with pecuniary interests, not with sentiment. I am clearly of the opinion from this record that the interests of all stockholders will be benéfited by a sale, under such circumstances as will protect the interests of all.

The directors are the trustees for all the stockholders, minority as well as majority, and their actions must be scrutinized and examined with that relation in view. As defendants contend, they may not, as such trustees, sell to themselves all the corporate property, nor may they sell all the corporate property to any one else. If they were making a sale by themselves to themselves, or to a company in which they were interested, another question would be presented. Neither the company nor the board of directors are selling, or contracting to sell, this property. In this proceeding the court is in fact making the sale. Peirson v. Fisk, 99 Mich. 43. No sale becomes effective until reported to and confirmed by the court. All the board of directors have done, and all they are authorized to do under this statute, is to initiate the proceedings — to place the matter in the hands of the court. When the sale is finally made it is made by the court. I discover no reason which would prevent the board of directors, trustees for all the stockholders, from initiating these proceedings in a court of equity, and placing the question of a sale of the property in the hands of the chancellor; nor have I been able to discover any place where this board of directors has in any way disregarded their trusteeship, or in any manner neglected the interests of all the stockholders.

This property must be sold for cash. Defendants cannot be required to take stock in another company. Lauman v. Railroad Co., 30 Pa. St. 42; Francis v. Taylor, 65 N. Y. Supp. 28; Slattery v. Development Co., 128 La. 871. Upon such sale an upset price should be fixed. This case has been appealed to this court and we are hearing it de novo. I think there is sufficient upon this record from which we are able to fix such upset price. The Copper Range company some years ago offered what would amount to $6,000,000 for this property. I think we may assume that it was then worth that amount. Since that time its .surplus has increased until at the end of 1916 it amounted to $2,000,000. The case was tried during the year 1917, so that the figures for that year are not before us, but the record indicates and all seem to agree that it would be a prosperous year. I think that, taking all the facts in the record into consideration, we may fairly fix as an upset price the sum of $10,000,000.

I think the construction here given the statute carries out the legislative intent, protects, the rights of all, and will prevent its oppressive use, either on the one hand to “freeze out,” as it is called in the Theis Case, uncongenial minority stockholders, and on the other prevent hold-ups by owners of small amounts of stock.

I think the decree of the court below should be modified by fixing an upset price of $10,000,000, and in all other regards affirmed. Defendants should recover costs of this court.

Stone, J., did not sit.


author: Bird, J.

text:
    CHICAGO, DETROIT & CANADA GRAND TRUNK JUNCTION RAILROAD CO. v. SIMONS.
    1. Eminent Domain — Damaqes—Basis of Award — General Rule.
    It is the general rule that th© tribunal whose duty it is to determine th© value of land taken by eminent domain is not limited to the value of the land or the purpose for which it is actually used, but may consider all uses to which it is adapted and might be put, and will award compensation upon the basis of its most advantageous use.
    2. Same — Inadequate Award.
    An award of compensation based upon the value of the land for farming purposes, although within the range of the testimony, will be set aside by the Supreme Court as inadequate, where the uncontroverted testimony on the part of respondents showed that the value of the land for subdividing and platting purposes was much in excess of what it was worth for farming.
    3. Same — Argument of Counsel — Jurisdiction.
    As to the power of the Supreme Court to set aside the award on the ground of intemperate argument of counsel to the jury, — qucere.
    Appeal from Macomb probate court; Reid, J.
    Submitted April 11, 1917.
    (Docket No. 133.)
    Decided March 27, 1918.
    Condemnation proceedings by the Chicago, Detroit & Canada Grand Trunk Junction Railroad Company against David W. Simons and others to acquire certain land for railway purposes. From an order confirming the award of the jury, respondents appeal.
    Reversed.

      Lungerhausen & Lungerhausen (W. T. Hosner and Charles C. Simons, of counsel), for appellants.

      Harrison Geer, for appellee.
   Bird, J.

Plaintiff, being desirous of establishing switching yards in the vicinity of the eight-mile road north of the city of Detroit, filed a petition in the probate court for Macomb county to condemn two parcels of land lying along and adjacent to its right of way. One parcel contains 6.20 acres, the other 10.39 acres. On these parcels it is intended to construct 30 railway tracks over which 2,000 cars will be handled every 24 hours. A jury of 12 men were empaneled and heard the proofs touching the necessity and the value thereof.

The 6-acre parcel is taken from a 40-acre tract owned by defendants Simons, Beymer and Abbott. Its southern boundary is the eight-mile road, otherwise known as the county line between Wayne and Macomb counties, and is situated three miles north of the city limits. It lies within a mile and a half of the Gratiot avenue street car line and three-quarters of a mile from the VanDyke line. It was first platted in 1892 and replatted again in May, 1916, and contains 371 lots.

The 10-acre tract is owned by defendants Fuller and Becker. It lies northeast of the 6-acre tract and has a frontage on the nine-mile road, and is said to be well adapted for platting and subdivision purposes and especially for factory purposes.

Petitioner produced seven witnesses, six of whom were farmers,- who valued the six acres, at $400 per acre and the ten acres at $200 to $250 an acre; this estimate to include the damages to the remainder of the tract. Defendants’ witnesses were mostly real estate men, who placed the value for subdividing and platting at from $1,000 to $1,500 per acre for the six acres and $1,000 to $1,200 for the ten acres. The parcels were estimated by petitioner’s witnesses to be worth for farming purposes from $150 to $300 an acre.

The jury awarded the sum of $400 an acre for the 6-acre parcel and $350 an acre for the 10-acre parcel, these sums to include the damages to the tracts from which the parcels were taken. The award was subsequently confirmed by the probate court. Defendants filed objections thereto and appealed to this court. The objections, in substance, are that:

1. The award as to each parcel is grossly inadequate.

2. That the jury adjudged the damages solely from what the lands were worth for farming purposes.

3. Because of the inflammatory argument of petitioner’s .counsel.

1. While the statute confers upon this court appellate jurisdiction to review awards made in railway condemnation cases, it has always been very loth to reverse them on technical grounds, or because the damages were apparently excessive or inadequate, if they were within the range of the testimony. These awards are within the range of the testimony and, therefore, I am of the opinion that the awards should not be set aside solely on the ground covered by the first objection that they are grossly inadequate. I am impressed, however, after studying the record, that the second objection considered in connection with the first one is well taken. The amount of the awards, together with the testimony, is very convincing that the jury awarded damages for the parcels based solely on their value for farming purposes. It is urged by respondents that the parcels were more valuable for platting or subdivision purposes than for farming purposes. If they were, the owners had a right to have the damages assessed on that basis. Mr. Justice Campbell, in reviewing proceedings to take lands for' railway purposes just outside the city of Grand Rapids, said:

“We think that where land so situated is condemned the jury should consider it in all its bearings and not as valuable for one purpose only. An owner has a right to be indemnified for anything he may have lost. The farming test, which is the one petitioner sought to apply, would be of no particular use in a great many cases of suburban lands.” Grand Rapids, etc., R. Co. v. Chesebro, 74 Mich. 466.

The general rule is stated elsewhere, as follows:

“The tribunal whose duty it is to determine the value of land taken by eminent domain is not limited to the value of the land or the purposes for which it is actually used, but may consider all uses to which it is adapted and might be put, and will award compensation upon the basis of its most advantageous and valuable use.” . 10 R. C. L. 180, and cases cited.

In Missouri, etc., R. Co. v. Roe, 77 Kan. 224, it was held that:

“The plaintiff was entitled to compensation according to the most advantageous and profitable use he could make of his land,” and further that “the defendant could not insist that the plaintiff treat his entire holdings as a farm in order to minimize his damages.”

The petitioner proceeded throughout on the theory that the tracts from which the parcels were taken were farming lands. It is asserted and not denied that the witnesses were interrogated by petitioner’s counsel as to the value of the parcels for farming purposes and for no other. Petitioner’s witnesses expressed their opinions as to the value of the parcels for farming purposes and added a sum to those values for detaching a portion of the tract and for the damages to the portions remaining. The value fixed by these witnesses agree so nearly with the amount awarded that it is difficult to avoid the inference that the jury awarded damages for the parcels, on the theory that their chief value was for farming purposes. The record shows that the 6-acre tract had been platted in 1892 and was sold by Simons to Abbott and Beymer upon contract for $900 an acre in May, 1916; that $2,000 an acre was paid for the subdivision south of it, and another subdivision on the eight-mile road, three-quarters of a mile west, had been subdivided and partially sold; that petitioner had paid $470 per acre for a tract of 38 acres, which lay north and east of the ones involved. Several witnesses familiar with the work of subdivision testified that the 6-acre tract was worth from $1,000 to $1,500 per acre for subdivision purposes and that the 10-acre tract was .worth from $1,000 to $1,200 per acre. This showing makes it obvious that these tracts had some value for subdivision and platting purposes, and that such value was far in excess of its value foy farming purposes. Persuaded as we are that the jury arrived at the amounts returned by the farming test, we think they proceeded, if not upon a wrong basis, upon a too narrow one, and that little or no consideration was given to the respondents’ testimony (which was not controverted), that the value of the parcels for subdivision and platting was much in excess of what they were worth for farming purposes. Because of this the awards must be set aside.

3. Objection is made to the following portion of counsel’s argument:

“You have heard the evidence, gentlemen, in regard to the transaction between Mr. Simons and Abbott and Beymer. That deal was put through for the purpose of holding up the railroad company. The land was sold by Simon, not 'Simple Simon,’ but David Simon, a Jew, and his nation is. the sharpest nation on earth. He made the deal with a couple of real estate sharks, men who make it a business of skinning the public and defrauding and robbing the poor laboring man, the widows^ and orphans, by their crooked and fraudulent lot selling schemes. Are you going to assist such crooks as these in mulcting this railroad company? They would defraud you if they had the opportunity. I hope, gentlemen, that none of you or your friends ever get into the clutches of these crooks.”

This intemperate outburst upon the part of counsel was not warranted by the testimony. Indeed, we do not understand that he attempts to excuse it in its entirety. How far it may have influenced the jury upon the question of value and thereby affected the awards, we are unable to say. Whether we should interfere with proceedings under this statute to the extent of setting them aside on this ground we think it unnecessary to decide, as the awards must be vacated for reasons already stated.

The awards must be set aside and an inquest made before a new jury. The respondents will recover their costs in this court.

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


text:
    E. P. STACY & SONS v. MOHER.
    1. Food — Warranty oe Fitness — Dealers—Implied Warranty— Inspection.
    There is no implied warranty of fitness or quality in the sale of articles of food, between dealers, where the buyer has an opportunity to inspect the articles before delivery.
    2. Same — Written Contracts — Trial—Instructions—Warranty.
    Where defendant, a retail grocer, purchased of a wholesale dealer a quantity of eggs for future delivery, under written contract, accepting the stocli in the condition it was in when it went into cold storage, in an action for the purchase price, the court properly instructed the jury that if, when the goods went into cold storage, they were fit for food and they afterward deteriorated and became , unfit for food, the loss would be on defendant, there being no claim of fraud or misunderstanding in making the contract.
    3. Same — Statutes—Defenses.
    Where the eggs were sound when defendant purchased them, and they decomposed after being placed in cold storage, section 6473, 2 Comp; Laws 1915, making it a misdemeanor to have in one’s possession, with intent to sell, any article of food which is diseased, decomposed, etc., is no defense to an action for the purchase price.
    4. Appeal and Error — Prejudicial Error — Review.
    Where the issue as to defendant’s liability was determined by the jury in favor of the plaintiff, and it recovered only the contract price, the admissibility of certain evidence, which appears to be of no consequence, will not be considered, on review.
    Error to Chippewa; Fead, J.
    Submitted October 3, 1917.
    (Docket No. 3.)
    Decided March 27, 1918.
    Assumpsit by E. P. Stacy & Sons against Jeremiah H. Moher for goods sold and delivered. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      McDonald & Kaltz, for appellant.

      Davidson & Hudson, for appellee.
   Bird, J.

Plaintiff is a wholesaler of groceries and produce in the city of Minneapolis. Defendant is a retailer of groceries, and produce in the city of Sault Ste. Marie. On the 25th day of May, 1914, the parties entered into a written contract by which defendant purchased of plaintiff 175 cases of selected storage eggs for future delivery. That part of the contract material to this controversy follows:

“J. H. Moher, of Soo, Mich., party of the first part, hereby purchase of E. P. Stacy & Sons, party of the second part, and said E. P. Stacy & Sons hereby sell said J. H. Moher one hundred seventy-five cases selected storage eggs for 24 cents per dozen, said price to include cost and storage and insurance to December 31, 1914. Said goods to be delivered as ordered, providing said orders shall be given E. P. Stacy & Sons long enough in advance to enable E. P. Stacy & Sons to ship the same.
“It is further provided that all of the eggs purchased are to be ordered, so as to be delivered on or before December 31, 1914, at which time the tender of any balance not ordered out by party of the first part is hereby expressly waived.
“It is also understood between the parties hereto that any eggs not ordered out by the party of the first part at or before the expiration of this contract, shall be charged to said party and immediately paid for; in case said first párty fails to take said eggs and pay for same on the expiration of this contract, said second party shall forthwith dispose of said eggs to best advantage for account of said first party. The said first party thereby agrees to reimburse said second party for any such loss as it shall sustain and which shall be charged to account of said first party.
“It is understood that said J. H. Moher accepts said stock as it is when it goes into cold storage, the buyer having the privilege of inspection at time of purchase should he so desire, but after the signing of the contract, it is understood that these eggs shall be accepted ‘at mark’ and not candled by E. P. Stacy & Sons when taken out of cold storage, nor shall said E. P. Stacy & Sons sustain any loss that may occur from the buyer candling the same.”

The eggs were afterwards purchased, placed in the Booth Storage warehouse in Minneapolis, and later in the season were shipped by plaintiff to defendant as he needed and ordered them, and they were sold by him to his customers save 24 cases, which, he claims, were spoiled. He returned the 24 cases to plaintiff at Minneapolis and refused to pay for them. It was to recover the contract price of these eggs that plaintiff brought this suit. The jury awarded plaintiff a verdict for the contract price of the eggs.

1. The principal complaint made by defendant is directed at the interpretation which the trial court gave to that part of the contract, which appears in italics. Based upon that portion of the contract, the jury were instructed that:

“If you find that when the goods went into cold storage they were fit for food purposes, the defendant, Mr. Moher, would not afterwards be entitled to any defense that they became afterward unfit for food. In other words, the condition of the eggs at the time they went into the cold storage would govern the rights and liabilities of the parties in this suit.
“The eggs which were to go into cold storage were, under the contract, selected storage eggs, and as I said, they must have been, in order that the plaintiff be entitled to recover for them, they must have been fit for food purposes at the time they went into cold storage. If they were so fit and they deteriorated afterward that loss would be to the defendant, Mr. Moher, under the contract.”

Counsel contends that this instruction was error because “an implied warranty attaches to the articles at the time of the delivery to the buyer — that they are fit then for the purposes contemplated by the contract, namely, for sale by the buyer to the customers.” Had this been the ordinary sale and delivery of an article of food counsel’s contention would be.quite right, provided plaintiff had had no opportunity to inspect it before delivery (Copas v. Provision Co., 73 Mich. 541), but if opportunity had been afforded'him to inspect the article before delivery, no implied warranty of fitness or quality would have arisen between plaintiff and defendant because both were dealers. Baker v. Kamantowsky, 188 Mich. 569.

But this was not the ordinary sale and delivery of an article of food. It was a sale by written contract made by parties who were cognizant of the fact that if the eggs were kept in cold storage until the following winter that some loss was likely to ensue, and the burden of that loss was. assumed by defendant in language which is unmistakably plain and unambiguous. There is no claim of fraud or misunderstanding attending the making of the contract. On the other hand, it appears to have been the deliberate act of the parties with a full understanding of the obligations imposed, and we see no valid reason why it should not be enforced as made. We think the interpretation given to it .by the trial court was the proper one.

2. Counsel directs our attention to the statute (section 3304, 2 How. Stat. [2d Ed.] ; 2 Comp. Laws 1915, § 6473) which makes it a misdemeanor to have in one’s possession with intent to sell any article of food which is diseased, decomposed, etc., and asks whether “it is possible that plaintiff may enforce a payment of an unfit food product in Michigan, the sale, offering for sale or having in his possession for sale here, would be in violation of the law?” If the eggs were decomposed while in defendant’s possession the statute would furnish a very good reason why he should not offer them for sale to the consumer, but it would furnish-'no reason why he should refuse to pay for sound eggs which he contracted to pay for six months previously and to bear the loss of deterioration if any ensued. The eggs were shown to have been sound, when purchased and placed in cold storage and defendant had the right of inspection, and if found otherwise than sound, to reject them. Not having done so, nothing is left for him but to bear the loss which he has expressly stipulated in writing he would assume.

3. Several questions are raised as. to the admissibility of certain evidence. Inasmuch as plaintiff recovered no more than the contract price which it was entitled to recover if the jury found the eggs were sound when they were placed in cold storage these questions appear to be of no consequence.

The judgment is affirmed.

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


text:
    COX v. HOLKEBOER.
    1. Fraud — Rescission—Status Quo.
    A vendee who has been defrauded in the purchase of land and desires to rescind, must act promptly and place the vendor in statu quo, or offer to do so.
    2. Same — Vendor and Purchaser — Rescission.
    Where plaintiffs, claiming fraud in the sale of land to them on contract, moved off the premises, informing defendant why they had done so, offering to surrender the premises and contract, and áemanding a return of the money paid, clearly indicating their intention to rescind, they did all they were required to do as a condition precedent to bringing suit; the contract being unrecorded no reconveyance was necessary.
    3. Same — Rescission—Refusal to Acquiesce — Status Quo.
    If further acts upon the part of plaintiffs had been necessary, in order to restore the status quo, defendant was in no position to insist upon them, after refusing to acquiesce in the rescission and informing plaintiffs that “he would fight them to the last ditch.”
    4. Same — Damages.
    Plaintiffs were entitled to recover as damages the payments and taxes paid, with interest thereon, but not the rental value of the premises.
    5. Same — Special Damages — Pleading.
    Special damages not having been pleaded, no recovery could be had for loss of wages or the expenses of moving onto the premises.
    6. Same — Principal and Agent — Statutes.
    Act No. 238, Pub. Acts 1913 (3 Comp. Laws 1915, § 11981), declaring void all agreements to pay commission for the sale of real estate unless in writing, is not applicable to relieve defendant from liability for the fraudulent representations of his agent in the sale of land.
    7. Damages — Conditional Judgment.
    Where the judgment of the court below included damages not authorized under the pleading, held, affirmed for the amount of payments, taxes and interest, conditioned upon plaintiffs’ acceptance within 20 days.
    Error to Ottawa; Cross, J.
    Submitted October 12, 1917.
    (Docket No. 114.)
    Decided March 27, 1918.
    Assumpsit by Benjamin F. Cox and another against Henry Holkeboer and another for money obtained by fraud and deceit. Judgment for plaintiffs. Defendants bring error.
    Affirmed, conditionally.

      Colin P. Campbell, for appellants.

      Charles E, Misner and Fred T. Miles, for appellees.
   Bird, J.

In April, 1915, defendant, through his agent, DeKeyzer, sold upon contract to plaintiffs a 40-acre farm in Ottawa county for the sum of $2,500. Prior to the purchase thereof plaintiffs were shown the farm by DeKeyzer. They appeared to be pleased with it and inclined to purchase, but hesitated because they were under contract to do janitor work for the Howe Military Academy until the following spring. To overcome this objection it is claimed DeKeyzer promised if they would purchase at that time he would rent the premises for them for one year for the sum of $150. This was agreed to and the deal was closed and a payment of $600 was made thereon, and later another payment followed of $300. In April, 1916, plaintiffs moved onto the premises, and, by the first of June, learned that the land was worthless, that a large part of it was blow-sand, in which no crops could be grown, and on the 21st day of June they moved off from the place, offered to surrender the contract to defendant and demanded a return of the payments made thereon, on the ground that they had been defrauded in that the soil did not measure up to the representations made to them by DeKeyzer. Defendant refused to acquiesce in the rescission, and, in reply to their demand for a return of the moneys paid him, he replied that there was “nothing doing, that he would fight them to the last ditch.” Soon thereafter the plaintiffs instituted this suit and during the progress of the trial the plaintiffs tendered to defendant a quitclaim deed of the premises. Plaintiffs recovered a judgment of $1,826.40.

Defendant discusses three questions:

(1) That there was no rescission prior to the commencement of this action, or offer to rescind, which would warrant a recovery in this action, upon the theory of a rescission.

(2) That the court permitted evidence of items of damage, and submitted figures to the jury as items of damage, which were erroneous upon the theory of rescission.

(3) That Mr. DeKeyzer was not the agent of the defendant so as to charge him with liability for his representations because there was no written contract with him.

1. There is no difference of opinion between counsel over the rule that a vendee who has been defrauded in the purchase of land and desires to rescind must act promptly and place the vendor in statu quo, or offer to do so. And counsel for defendant does not, contend that what plaintiffs did toward restoring the status quo would not have- been sufficient had it been done in season and before the suit was brought, but he insists that plaintiffs were still in possession of the premises and had tendered no reconveyance when the suit was commenced, and that a tender of a quitclaim deed upon the trial was too late to satisfy the rule. It appears from the record that plaintiffs moved off from the farm and advised defendant of the fact and why they had done so. A few days later plaintiffs offered to surrender the contract and demanded a return of the payments made thereon. Following this a suit was commenced by declaration and a notice of rescission accompanied the declaration. These acts clearly indicated an intention upon their part to rescind the contract. Counsel’s point that the quitclaim deed was not tendered in season to be available is not well taken. The plaintiffs had no title; they had an. unrecorded contract, which, if complied with, would eventually bring them the title. Where the contract is unrecorded no reconveyance is necessary. Harding v. Olson, 177 Ill. 288. When plaintiffs offered to surrender this and the possession of the premises, they did all they were required to do as. a condition precedent to bringing suit. But even if further acts had been necessary in order to restore the status quo, defendant was in no position to insist upon them, after refusing to acquiesce in the rescission,- and advising plaintiffs that “he would fight them to the last ditch.” Johnson v. Burnside, 3 S. D. 230; Ballard v. Lyons, 114 Minn. 264; Snyder v. Markham, 172 Mich. 693.

2. After giving the jury some general instructions as to the measure of damages in the event they found plaintiffs entitled to recover, the trial court charged them as follows:

“If your verdict is for the plaintiffs, then they would be entitled to receive the $600 paid on the purchase price and interest from May 1, 1915, and also the sum of $314 paid on April 12, 1916, and interest, and also taxes amounting to $9.04; also freight amounting to $28.36, and a sum which would compensate him for the loss of wages during the time he stayed on the farm, together with interest at five per cent, from the time of the payments to date.
“I further charge you that if you find the promise of $150 rent made by Mr. DeKeyzer to Mr. Cox was one of the representations relied upon by the plaintiffs and was one of the inducements which led Mr. Cox to make the contract for the purchase of the farm at the time he did, then I charge you'that item would be an element of damage.”

Complaint is made of this charge as not stating the proper measure of damages. We agree with the trial court that plaintiffs were entitled to recover the payments and taxes with interest thereon from the time such payments were made, but the items of loss of wages and expenses of moving from Howe to the premisés were not necessarily the direct result of defendant’s wrongful act, therefore, no recovery could be had on account thereof, under the declaration. Whether such damages might be recovered as special damages, we need not inquire, as the declaration was not so framed as to permit a recovery on that theory. If plaintiffs were entitled to a return of the payments, with interest, they would not be entitled, in addition thereto, to the item of $150 as rental. To allow the rental value for the first year in addition to a return of' the payments and interest thereon would place plaintiffs in a better position than they would have been in had the land been as represented.

3. It is the contention of counsel that DeKeyzer could not be shown to be the agent of defendant so as to charge him with liability for his misrepresentations to plaintiffs, because there was no written contract between him and the defendant. This point is rested upon Act No. 238, Pub. Acts 1913 (8 Comp. Laws 1915, § 11981), making void every agreement, promise or contract to pay any commission, etc., unless in writing. If this were a contest between De-Keyzer and the defendant wherein DeKeyzer was seeking to recover his commissions, the statute relied upon would be in point, but inasmuch as the contest is between the defendant and the purchaser over false representations which induced the purchase of the premises, we think the statute has no application.

As the record stands plaintiffs are entitled to recover the payments, taxes and interest. In order to avoid the expense and trouble of a rptrial we have concluded to affirm the judgment for those amounts provided plaintiffs will remit upon the record any sum in excess thereof. Defendant will recover costs in either event. In default of such reduction for 20 days the judgment will stand reversed with costs to defendant.

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


text:
    VOORHIES v. PRATT.
    1. Adverse Possession — Drains — Right of Wat — Permissive User.
    A right to lay a drain and convey surface water upon the lands of another, beginning in favor, was permissive, and no rights by adverse user could arise thereunder.
    2. Same — Drains—Right to Maintain — Prescription.
    Where the permissive user was extinguished by sale of the premises, and thereafter defendant claimed the right to maintain the drain, and the evidence shows that he did so maintain it, going upon the premises and keeping it open, for over 16 years, held, a right by prescription was made out.
    Appeal from Genesee; Stevens, J.
    Submitted October 5, 1917.
    (Docket No. 41.)
    Decided March 27, 1918.
    Bill by George W. Voorhies against William Pratt and others to restrain defendants from the use of certain drains and for damages arising out of their use. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      George F. MacNeal (James S. Parker, of counsel), for plaintiff.

      H. W. Hoxie (John H. Farley, of counsel), for defendants.
   Bird, J.

George Voorhies, the plaintiff, is the owner of 30 acres of farming land in the southwest corner of the township of Fenton, in Genesee county. Defendants’ lands lie to the north and east of plaintiff’s, forming a watershed of something less than 100 acres, which discharges its surface water on and across plaintiff’s land to the southwest. Several months after plaintiff purchased the land in November, 1911, he'discovered two tile drains discharging their waters on his land. One drain from the north was laid on his land about 12, rods and ran back onto defendants’ land several rods. The other, from the east,1 discharged its waters at or near the line fence, and extended in an easterly direction on defendants’ land 40 or 50 rods. Plaintiff was not pleased with these conditions because they made certain portions of his land wet and unproductive, and he claims that he protested to defendant Pratt and insisted upon his remedying it; that Pratt did not heed his protest and therefore he proceeded to dam the east drain at or near the line fence, but this did not avail because the water would go over the top of the dam and spread out on his field. He claims, in consequence of this drainage, his crops during the years that have followed his purchase have been damaged and that he has suffered several hundred dollars’ loss. Despairing of any relief from defendants he filed this bill of complaint in October, 1914, praying for a permanent injunction restraining defendants from making use of said drains, and praying for an award of damages for the injury to his crops. Defendant Pratt and the other defendants who have recently purchased defendant’s land upon contract made the defense that they had acquired a prescriptive right to maintain these drains. The chancellor found that this right existed and dismissed plaintiff’s bill.

Plaintiff’s proofs are convincing that something more than the ordinary flow of surface water is reaching his land through these drains and that the water is reaching his land quicker and in greater volume than it otherwise would. His testimony fairly tends to establish the fact that certain sag holes or swales on defendants’ land to the east are drained or partially drained, by the east drain. His testimony also shows that his crops have been damaged by reason of this excessive drainage and we are of the opinion that he is entitled to some relief unless it can be said that defendant has acquired a right by prescription to discharge the water upon his premises in the manner indicated.

Defendants’ proofs do not seriously controvert plaintiff’s claims but seek to avoid the effect of them by showing that these drains were constructed in the early nineties with the consent of Mr. Hatt, who was then the owner of plaintiff’s premises, under some oral agreement that when Mr. Hatt was ready to extend them through his land, defendant Pratt would assist in so doing. Defendants’ testimony further shows that in March, 1898, Mr. Hatt sold the premises to James Pratt, a brother of defendant, and that he owned them until March, 1911, when they were sold by him to plaintiff; that the length of time the premises were owned by James Pratt and the plaintiff before suit was commenced was upwards of 16 years, and that the uninterrupted passage of the water through these drains during that time has given defendant a right by prescription to have them continued. The drains appear to have had their beginning in favor, extended by Mr. Hatt to defendant, and, therefore, were permissive. While they were maintained as a matter of favor defendant could not acquire any right by adverse user. People v. Ferguson, 119 Mich. 373. After a sale of the premises to Mr. James Pratt the favor was thereby extinguished (Maxwell v. Bay City Bridge Co., 41 Mich. 466), and the statute would begin to run. It appears without much contradiction that during the ownership of James Pratt and plaintiff defendant Pratt went onto the premises and opened the outlets, and that during all the times since the premises were sold by Mr. Hatt defendant has claimed the right to and has maintained the drains and kept them open. The testimony does not show that at any time the use of the drains has been seriously interrupted, although it appears that plaintiff attempted to stop the flow but failed. It further appears to have been acquiesced in by James Pratt and also .by plaintiff during a part of his ownership. These ownerships cover a period of over • 16 years, and we think the defendants’ testimony fairly made out a right by prescription. Gregory v. Bush, 64 Mich. 37; Leidlein v. Meyer, 95 Mich. 566; Cranson v. Snyder, 137 Mich. 340.

We agree with the conclusions reached by the chancellor.

The decree will be affirmed.

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


text:
    GRAND TRAVERSE FRUIT & PRODUCE EXCHANGE v. THOMAS CANNING CO.
    1. Frauds, Statute of — Evidence—Parol Testimony.
    Written contracts may be modified by subsequent opal agreements, if otherwise valid.
    2. Same — Compromise and Settlement — Evidence.
    Testimony of a subsequent oral agreement which worked a release or discharge of the whole contract obligation was admissible, although the amount involved was more than $50.
    3. Same — Evidence—Finding by Jury.
    Testimony, in an action for the purchase price of certain cherries, that plaintiff and defendant entered into an oral contract reducing the number of cars of cherries to be furnished under a written contract from 45 to 22%, that when 15 cars had been delivered plaintiff requested defendant to go into the open market and buy the remaining 7% cars and charge the difference in price to it, which was done, and a bill for the difference was presented by defendant and allowed as a set-off against plaintiff’s claim, heló, sufficient to sustain 'a finding by the jury that the parties settled on the basis of 22% cars.
    Error to Grand Traverse; Mayne, J.
    Submitted October 12, 1917.
    (Docket No. 106.)
    Decided March 27, 1918.
    Assumpsit by the Grand Traverse Fruit & Produce Exchange against the Thomas Canning Company for goods sold and delivered. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Colin P. Campbell, for appellant.

      Patchin & Duncan, for appellee.
   Bird, J.

Plaintiff entered into a written contract with defendant in June, 1916, to deliver to it during the season. 45 cars of sour cherries at a stated price. As the season progressed it became evident to plaintiff’s manager, Mr. Kern, that the crop was not going to be as large as anticipated, and that it might have difficulty in filling the order. With this in mind Mr. Kern approached the defendant with the idea of reducing the number of cars to be delivered, and it is his claim that defendant did consent to reduce the number to 22% cars. Plaintiff began to make deliveries, and, after delivering 15 cars to defendant, found it difficult to deliver the balance of the 22% cars. Mr. Kern then authorized defendant to go into the open market and purchase the 7% cars and charge to plaintiff the difference in price. Defendant did as requested, purchasing the 7% cars and more. The price paid for the 7% cars in excess of the contract price was $1,667. While plaintiff conceded that this sum represented the difference, he made an effort to get defendant to reduce this amount. Failing in this, the plaintiff then requested defendant to deduct the $1,667 from the amount owing for deliveries made and pay the balance. Defendant refused and this suit was begun to recover it. The trial court held, in substance, that the written contract could not be modified by the oral agreement, but permitted the case to go to the jury to determine whether there was a settlement between the parties. Judgment having passed- for plaintiff, defendant insists that the trial court was in error, first, in admitting parol testimony modifying •the written contract; second, in submitting the question of settlement to the jury.

1. Was the court in error in admitting parol testimony of the subsequent agreement? Had the testimony related to a prior or contemporaneous agreement it is apparent that its admission would have been error under the well settled rule of evidence. The claimed agreement was, however, a subsequent. agreement and it is generally held that written contracts may be modified by subsequent oral agreements if otherwise valid. DeCamp v. Scofield, 75 Mich. 449; Liggett Spring & Axle Co. v. Michigan Buggy Co., 106 Mich. 445; Wolff v. Alpena National Bank, 131 Mich. 634; Town v. Jepson, 133 Mich. 673; Katz v. Bedford, 77 Cal. 319; Barber v. Brace, 3 Conn. 9; Spann v. Baltzell, 1 Fla. 301; Richardson v. Eveland, 126 Ill. 37; Welz v. Rhodius, 87 Ind. 1; Illinois Cent. R. Co. v. Manion, 113 Ky. 7; Palmer v. Fogg, 35 Me. 368; Baltimore Pearl Hominy Co. v. Linthicum, 112 Md. 27; Conrad v. Fisher, 37 Mo. App. 352; Harris v. Murphy, 119 N. C. 34; LeFevre v. LeFevre, 4 Serg. & R. (Pa.) 241; McCauley v. Keller, 130 Pa. St. 53; Putnam Foundry & Machine Co. v. Canfield, 25 R. I. 548; Bryan v. Hunt, 4 Sneed (Tenn.), 543; Bannon v. Aultman & Co., 80 Wis. 307.

But counsel says that this rule does not apply in the instant case because the statute of frauds makes void contracts of this character involving more than $50 unless in writing. Upon this question the courts are divided. Some of them hold that parol testimony is admissible even where the subsequent agreement is within the statute, but the weight of authority denies this right and this court early in its history ranged itself with the latter, holding that testimony of such agreements is inadmissible. Abell v. Munson, 18 Mich. 306; Cook v. Bell, 18 Mich. 387. See, also, 10 R. C. L. 1035, and cases cited. But even those courts which hold to this view permit testimony of subsequent oral agreements which work a release or discharge of the whole contract or obligation. See note to Abell v. Munson, 100 Am. Dec. 172, citing cases.

The trial court obviously took the view of these cases and submitted the question to the jury whether the minds of the parties met on the sum which should be in discharge of their contract obligations. We are inclined to agree with the trial court that this rule should be applied. This brings us tor counsel’s second proposition, that there was no testimony of such a settlement. Although the testimony was somewhat meager we think there was testimony submitted to the jury from which an inference might be drawn that the minds of the parties met on the sum of $1,667 as the sum which would put an end to their contract relations. Plaintiff’s testimony, although contradicted in part, shows that he agreed with defendant’s agent that the number of cars to be delivered should be reduced from 45 to 22%; that when 15 cars were delivered he asked defendant to go into the open market and buy the remaining 7% cars and charge the difference in price to it. Defendant did so and after doing so presented to plaintiff a bill of $1,667 which the cherries had cost more than they would have cost had plaintiff delivered them at the contract price. This was presented as a set-off against plaintiff’s claim. Plaintiff recognized this as the sum for which it was liable by reason of-its failure to deliver the 7% cars, but Mr. Kern, thinking the loss was. large, appealed to the generosity of defendant to reduce it. This testimony, together with some other items of proof showing acts done by defendant in recognition of the subsequent agreement, is persuasive that the parties at that time understood they were dealing and settling on a basis of 22% cars. There was sufficient testimony along this line to furnish a basis for the finding of the jury.

The judgment is affirmed.

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


text:
    AULL v. PETERSON.
    1. Cancellation of Instruments — Cpntracts—Insane Persons ■ — -Competency.
    In proceedings in the court of equity by the guardians of a man over 75 years of age, suffering with senile dementia, to set aside a contract made by him with defendants for his board and lodging for the rest of his natural life, on the ground of his mental incompetency at the time the contract was made, evidence examined, and held, sufficient to sustain the finding of mental incompetency.
    2. Equity — Incompetent Persons — Board and Keep — Amount of Compensation.
    An allowance of $12 per week for the board and lodging of an incompetent person, and $68 for other services rendered him during a period of 68 weeks, under conditions which were somewhat trying because of his mental condition and filthy habits, held, not excessive.
    Appeal from Allegan; Cross, J.
    Submitted October 19, 1917.
    (Docket No. 17.)
    Decided March 27, 1918.
    Bill by Adolphus Aull and another, guardians of Henry Aull, an incompetent, against Mary E. Peterson and another for the cancellation of a contract and. for an accounting. From the decree rendered, both parties appeal.
    Affirmed.

      Clare E. Hoffman, for plaintiffs.

      Smedley & Linsey, for defendants.
   Bird, J.

The bill in this case was filed to cancel the following contract:

“Fennville, Michigan, December 15, 1913.
“I, the first party, Henry Aull does agree to turn over notes to the second party, Mrs. M. E. Peterson, amount twenty-one hundred and nineteen dollars, and pension of $20.00 per month and what arise I get. With six thousand dollars at my death
“I, the second party, Mrs. M. E. Peterson does agree to give the first party, Henry Aull, board and lodging and good care the natural life time of the first party, Henry Aull.
“I, the first party, Henry Aull, does agree to turn over notes of twenty-one hundred and nineteén dollars at the time first and second party signs this contract.
“I, the first and second party, Henry Aull and Mrs. M. E. Peterson, does agree this shall be deposited in the Old State Bank of Fennville or at Fruit Growers Bank at Saugatuck. I, the first and second party, Henry Aull and Mrs. M. E. Peterson, does agree that this contract is a permanent agreement between first and second party, Henry Aull and Mrs. M. E. Peterson.
“Henry Aull,
“Mrs. M. E. Peterson.
'. “Witnesses:
“Chester T. Peterson,
“Mrs. Lena Peterson.”

Henry Aull at the time this contract was made was a bachelor, 75 years of age. He was a farmer in his early life and was an old time resident of Allegan county, and had, by careful management of his business affairs, accumulated a fortune estimated at $50,-000. For at least 20 years he had been retired from active farming and had boarded with a Mrs. McCormick at Fennville, a neighbor of defendants. At about the time the contract was made, for some reason it became inconvenient for him to remain longer at Mrs. McCormick’s and he applied to Mrs. Peterson to provide a home for him. Mrs. Peterson permitted him to come to her home, and on the following day this contract was made. He remained there for a period of 68 weeks, when he left and returned to the home of Mrs, McCormick. His brother,. Adolphus, learning of his mental condition, came to see him and took bim to his home in St. Clair county, in the State of Illinois, where he was adjudged incompetent by the proper authorities, and Adolphus and Jacob, brother and nephew, were appointed guardians of his person and estate. It is their claim in the bill that -Henry was mentally incompetent at the time he entered into this contract. After a somewhat extended hearing the chancellor found that Henry Aull was mentally incompetent at the date of the contract, and made a decree canceling it, and awarding Mrs. Peterson $12 a week for board and care during the 68 weeks he remained with her. He awarded defendant Chester Peterson, a son of Mary, for services in shaving Henry and in driving him around the country, the sum of $68, and decreed that defendants should return to plaintiffs the sum of $1,887.37. From this decree both parties have appealed.

Plaintiffs assert that the chancellor was. wrong in awarding Mrs. Peterson $12 per week for the care of Mr. Aull, inasmuch as the proofs show that he was boarded and cared for at Mrs. McCormick’s prior to his going to Mrs. Peterson’s for $3.50 a week, and after he returned for $4 a week; that the award of $68 made to Chester Peterson was too large for the services which he performed, and that the testimony in that regard does not support the finding.

Defendants claim that the decree is wrong because it determines that Henry Aull was mentally incompetent at the time the contract was made.

Several physicians were sworn and testified that Henry Aull was afflicted with senile dementia, and was at that time in a well advanced stage. They testified that senile dementia, was a progressive disease due to old age, and that the progress of the disease depended upon the condition of the particular patient. Testimony was given by them to the effect that when questioned by them he could not recall his surname. Did not know how old he was; could hot tell-where his home was, and did not appear to know that he had any business interests; could not tell whether he was in Chicago or Kalamazoo, and could not tell who was President of the United States. One physician testified that when he was brought to his office in Chicago for examination he tried to make love t<? a nurse in his employ and that later when his wife came in he attempted to make love to her. The physicians gave it as their opinion that he was not mentally competent to transact business in December, 1913, at the date of the contract, although the examinations were made some time subsequent to that date.

It was shown by the testimony of the defendant Mary Peterson, that while he was at her house he refused to bathe, that he did not take a bath during all the time he was there; that he would lie upon the floor and break wind in the presence of the family; that he would not attend the calls of nature, and as a consequence his clothing became'filthy and offensive, due to being saturated with urine; that he was affected with catarrh and would sit at the table and permit the mucus from his nose to fall onto his plate and food without making any effort to prevent it.

As is usual in such cases many neighbors, business acquaintances and friends were sworn, and nearly all of them had observed more or less change in Mr. Aull since 1911 or 1912, but they were divided in opinion as to whether he was mentally competent to transact business and protect himself, at the time the contract was made. The testimony shows that after this change came over him he was unsteady of gait, looked feeble and was rambling in his conversation, and that it worked a complete change in his habits of life. That instead of being a. prudent business man he became careless and loaned money without security. Instead of being clean and tidy he took no care of his person, and refused to bathe. Instead of having good table manners he ate with his hands and crowded the food into his mouth, and indulged in other disgusting habits which were offensive. Instead of being a spare eater he became a ravenous one. Instead of continuing his lifelong aversion for women he wanted to caress and make love to nearly every woman he met. The doctors explained that his unsteady gait and this reversal of habits was quite characteristic of the disease from which he was suffering.

The testimony taken in its entirety is very convincing that Henry Aull’s mind was very much impaired at the time he entered into the agreement and it is probable that no one knew this better than Mrs. Peterson, because she knew him and could compare him in his then mental condition with his former self. Notwithstanding this knowledge she manifested a disposition to take advantage of his weakness by demanding not only compensation but a bonus, at the same time giving him no assurance or security that the contract would be carried out in the event of -her illness or death. The following excerpts from her own testimony will indicate the state of her mind while dealing with him:

“Q. He was not very contrary about making a contract with you, was he?
“A. It was his own doings, I did not want him to make, any contract. I did not ask for anything. I told him I would not take him to keep him his lifetime unless he would make it an'object for me to take him. He had to raise the pile enough so that it became an object to me, and that is what he did do. $ ^ ‡
“Q. How was he in his conduct with you, did he try to get familiar with you?
“A. No, he did not get familiar, to .make love, he asked me to marry him, that was all. He asked me to marry him, I think it was in the fall that he went away in the spring. He went away in the spring and I told him if I should marry him he would have to give me a certain amount for my own share, and he proposed to say — he said he would not do it, and so I said all right. Then he wanted to let it stand until spring, then in the spring he said he guessed he would let it drop, and I thought so too.”

Upon the whole record we are persuaded that the chancellor reached the right conclusion on the question of mental competency. We also agree with him that $12 per week for Mr. Aull’s board and care is not too much if the conditions existed which Mrs. Peterson and others detailed: Neither are we prepared to say that $68 allowed to Chester for services which he rendered Mr. Aull is excessive. The conditions under which some of the services were performed were somewhat trying and we . think this allowance should not be disturbed.

We think the decree a very just solution of the whole matter and it will.be affirmed. No costs will be allowed either party.

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