text:
    Peter Damm and August Clug v. George H. Mason.
    [See 98 Mich. 287; 100 Id. 577.]

      Res judicata — Replevin—Directing verdict.

    1. Plaintiffs and defendant held chattel mortgages upon the same property. Defendant’s mortgage was executed prior to the-date of plaintiffs’ mortgage, but was not filed until after plaintiffs’ rights had accrued. Defendant replevied the property from the mortgagor, and plaintiffs, claiming the property under their mortgage, brought this action of replevin to test the title. And it is held that a judgment, afterwards recovered by the defendant in his suit, is not res judicata of the questions involved in plaintiffs’ suit.
    2. Where there is no dispute as to the value of the property not recovered on a writ of replevin, the court is justified, on directing a verdict for the plaintiffs, in stating the amount for which the verdict should be rendered.
    Error to Muskegon. (Russell, J.)
    Submitted on briefs October 5, 1894.
    Decided December 7, 1894.
    Replevin. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion, and in' 98 Mich. 237, and 100 Id. 577.

      Turner, Turner S Turner, for appellant.

      Jones & Clark, for plaintiffs.
   Montgomery, J.

This action was replevin, brought by these plaintiffs, who claimed under a mortgage executed to them by one Henry L. Partrick. Defendant also held a mortgage on the same property, executed by Partrick prior to the date of the plaintiffs’ mortgage, but left off the record until after plaintiffs’ rights accrued. On the 16th of January, 1893, the defendant, Mason, replevied from Partrick a large amount of property, including the property in question. The property thus coming into Mason’s hands, plaintiffs, claiming the right to it under their mortgage, brought this suit in replevin, to test the title.

1. Defendant claimed to have shown on the trial that the .title to some of the property was adjudicated in" the case of Mason v. Partrick, 100 Mich. 577, and claimed that such judgment was res judicata. But, aside from the fact that the record fails to show in whom the title was adjudicated to be, a sufficient answer to the defendant’s contention is that plaintiffs were not parties to that suit; so far from it that they had, before that adjudication, brought this independent action to have their right to the property herein settled, leaving Partrick and Mason to settle in their suit all that the court in that proceeding was authorized to settle, viz., the rights of Partrick and Mason as between themselves.

2. Certain of the property was not recovered on the writ, and the circuit judge, in directing a verdict, stated the amount for which the verdict should be rendered. There was no dispute about the amount, and this course was justifiable.

-Judgment will be affirmed, with costa.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    Gottlieb Gennert v. Albert Ives, Jr.

      Corporations — Failure to file annual report — Liability of director for corporate debts.

    1. 3 How. Stat. § 416161, which provides that manufacturing companies shall file an annual report with the Secretary of State, and that, if any of the directors shall willfully neglect or refuse to make such report, they, shall each be liable for all of the corporate debts, and subject to a prescribed penalty, only applies to such of the directors as willfully neglect or refuse to make the report.
    S. A presumption arises that the failure to file the report was intentional, and therefore willful.
    3. Where, in a suit brought under the statute to charge a director with a debt of the corporation, the defendant testifies that, as far as he is concerned, there was no purpose in keeping the report back; that he left the management of the business to the president of the corporation; that he was not aware of the requirement that such a report be filed; and that during the period when the report was due he had not in mind that he was a director of the corporation, — such testimony, if not disputed, is sufficient to overcome the presumption arising from the failure to file the report, and the court is justified in withdrawing the question from the jury.
    Error to Wayne. (Carpenter, J.)
    Submitted on briefs October 4, 1894.
    Decided December 7, 1894.

      Assumpsit. Plaintiff brings error.
    Affirmed.
    The facts are stated in tbe opinion.

      Charles K. Latham, and Horace II. Rackham, for appellant.

      Dickinson, Thurler & Stevenson, for defendant.
   Montgomery, J.

This action was instituted to charge defendant with a debt of the Harris Photographic Supply Company, a corporation in which he was one of the directors. It is based upon section 12 of Act No. 232> Laws of 1885, being section 416151, 3 How. Stat. This section, after providing that annual reports shall be filed by the directors of corporations, proceeds:

“If any of said directors of any such corporation shall willfully neglect or refuse to make the report required by this section, they shall each be liable for all the debts of such corporation, and subject to a penalty of 825/’ etc.

Two questions are discussed in the briefs of counsel in this Court:

1. Whether the statute is to be so construed as to render all of the directors liable in case of the willful neglect of one or of a majority of the directors.
2. Whether, in the absence of proof, the failure to file a report is to be presumed willful, and, if- such a presumption obtains, whether it was conclusively overcome by the testimony in this case.

Statutes imposing liability of the character here sought to be established have been uniformly held to be penal in their nature, and to require strict construction. Thomp. Liab. Off. 447; Arms Co. v. Barlow, 63 N. Y. 62; Breitung v. Lindauer, 37 Mich. 217. And it is held that the penalty will only be imposed in cases where the plain language of the provision requires it.. Whitaker v. Masterton, 106 N. Y. 277.

We think there is little difficulty in construing this statute. The meaning of the statute is that such of the •directors as willfully neglect or refuse to make the report shall be liable. The same persons, precisely, as are made liable for the indebtedness, are made subject to a further penalty." It cannot be assumed that the Legislature intended to impose the penalty upon one director for the willful neglect of his fellow director, unless the language ■employed imperatively calls for this construction, and such, we ¿hink, is not the case here.

We are cited to the case of Van Etten v. Eaton, 19 Mich. 187, as sustaining the plaintiff’s contention that all •of the directors are liable in case of the intentional neglect •of less than all. _ But the statute there under consideration was essentially different from the one here being considered. That statute, being section 23 of the act -of February 5, 1853 (Comp. Laws 1857, p. 580), reads:

“ If the directors of any such company shall intentionally neglect or refuse to comply with the provisions and to perform the duties required of them by sections 3, 5, 18, •and 19 of this act, they shall be jointly and severally liable, in an action' founded on this statute, for all the •debts of such corporation contracted during the period of such neglect or refusal; and such of them as were present .and acting as such directors at any time during such neglect or refusal shall be guilty of a misdemeanor, and may, on conviction thereof, be fined a sum not exceeding $5,000,” etc.

It will be noticed that this statute dealt with the -directors collectively, and treated of the neglect as the neglect of the board of directors, the condition being, “if the directors of any such company shall intentionally neglect,” etc., whereas the present law provides the remedy “ if any of said directors shall willfully neglect,” etc., and provides that “they” shall be liable, etc., referring very plainly back to the word “any.” It is also to be noted that the'law of 1853, in providing for a penalty, limited the action to those who were present and acting as such directors during the time of such neglect, thus raising an implication that, so far as liability for indebtedness was concerned, the actual presence of the director was not necessary. Under the present law, as above stated, the penalty for willful neglect is imposed upon the same persons as those made liable for the indebtedness, and we hold those persons to be those who compose any of the directors who willfully fail to make a report. The circuit judge was of this opinion, and in so construing the statute was right.

We think, on the authority of Van Etten v. Eaton, it should be held that a presumption arises that the failure to file the report required by statute was,intentional, and therefore willful. It was said in that case:

“ If the plaintiff should be required in the first instance to prove by direct evidence the actual intent in the minds of the delinquent directors, and should be precluded from making proof by inference from the fact of omission to perform the act required by the statute, the object of the law would be seriously obstructed, if not, in many cases, altogether defeated.”

This language was used with reference to the contention made by the plaintiff in error in that case—

“ That it was necessary that the plaintiff show that the neglect imputed to the directors was intentional, and that, whatever inference as to intention might properly be drawn from the bare omission to report, the jury were not bound to consider it as sufficient evidence of an intention to neglect the duty, although no explanation of the cause or reason of the failure was submitted.”

In the present ease, however, the defendant accepted the-, burden of overcoming the presumption, and his testimony-stands undisputed. The defendant testified that, so far as: he was concerned, there was 'no purpose in keeping the: •report back; that he left the management of the business to the president of the corporation; that he was not aware of the requirement that such a report be filed; and that during the period when this report was due he had not in mind the fact that he was a director of the corporation. As this testimony was not disputed, and as it was sufficient to overcome the presumption, the court was right in withdrawing the consideration of the question from the jury. See Hill v. Chambers, 30 Mich. 422; Hurley v. Watson, 68 Id. 531.

The judgment will be affirmed, with costs.

The other Justices concurred.


text:
    The Village of Vicksburg v. Edmund S. Briggs.

      Disorderly conduct — Violation of village ordinance — Evidence-..
    1. A section of a village ordinance which provides that “any-assemblage of persons, in any place in said village, engaged; in any noisy, boisterous, contentious, or quarrelsome language or strife, or who shall be fighting or quarreling thereat, shall’ be deemed, and is hereby declared, a disorderly assemblage,”' is not limited in its scope by a prior section of the same ordinance which provides that “every assemblage of persons in-any street, lane, alley, or public place in said village, and' upon any sidewalk or cross-walk thereof, and upon the street corners, and in front of or adjacent to any of the churches, hotels, business houses, or public buildings in the said- village, engaged in noisy, boisterous, contentious language or conduct, shall be deemed a disorderly assemblage,” so as. to, make it, inapplicable to a disorderly assemblage of persons in a saloon in said village.
    2. The contention that, unless the section first cited is limited in its scope to public places, such as are enumerated in the section last cited, it is unconstitutional, is untenable.

      8. Where in a prosecution for a violation of a village ordinance which declares any assemblage of persons, in any place in the village, engaged in any noisy, boisterous, contentious, or quarrelsome language or strife, or who shall be fighting or quarreling thereat, a disorderly assemblage, and providing for the punishment of any person or persons who shall be convicted of a violation of said ordinance, the complaint alleges, and the testimony tends to show, that the disorderly assemblage was in a saloon in said village, it is not error for the court to permit the prosecuting attorney to cross-examine the respondent as to facts occurring after he had left the saloon, it appearing that the inquiry related to the subject of whether ■or not he was attempting to follow up the parties with whom he was engaged in the quarrel in the saloon, thus bearing upon the question of motive.
    Exceptions before judgment from Kalamazoo. (Buck, J.)
    Submitted on briefs October 5, 1894.
    Decided December 7, 1894.
    Respondent was convicted of the violation of a village ordinance.
    Conviction affirmed.
    The facts are stated in the opinion.

      .James H. Einnane, for respondent.

      J. R. Cropsey, for the village.
   Montgomery, J.

This is a prosecution under section 2 •of ordinance 9 of the village of Vicksburg, which pro-vid'es that—

Any assemblage of persons, in any place in said village, engaged in any noisy, boisterous, contentious, or ■quarrelsome language or strife, or who shall be fighting ■or quarreling thereat, shall be deemed, and is hereby ■declared, a disorderly assemblage.”

On the trial, the testimony tended to show that the alleged disorderly assemblage was in the saloon of Howard & Wineberg in said village; and respondent insisted, and insists here, that section 2, above quoted, does not apply to assemblages of persons in a saloon, the precise contention being that section 2 is limited in its scope by .section 1, which provides—

“That every assemblage of persons in any street, lane, •alley, or public place in said village of Vicksburg, and upon any sidewalk or cross-walk thereof, and upon the street corners, and in -front of or adjacent to any of the •churches, hotels, business houses, or public buildings in the said village, engaged in noisy, boisterous, contentious language or conduct^ shall be deemed a disorderly assemblage.”

Ve do not think that section 2 is limited in its scope by section 1. If it were, section 2 would be apparently unnecessary.

It is also suggested that, unless section 2 is limited in its scope to public places, such as are enumerated in section 1, it is unconstitutional; but what provision of the ■Constitution it is claimed to infringe is not pointed out, .and none with which it is in conflict occurs to us.

It is also objected that the circuit judge permitted the prosecutor to cross-examine the respondent, when upon the .stand, as to facts occurring after he had left the saloon. The -inquiry related to the subject of whether the respond•ent was attempting to follow up the parties with whom he was engaged in the quarrel -in the saloon, and bore upon the question of motive.

Complaint is also made of a portion of the charge in which the judge instructed the jury that—

“If the defendant, Briggs, was engaged in fighting and ■quarreling with one Barnhart, and used loud and boisterous or profane language, respondent would be guilty, •without regard to who was the aggressor.”

But this is not a fair statement of the charge of the court, for he charged, in connection with these instructions,, as follows:

“If, on the other hand, what he [referring to respondent] claims is true, and what has been testified to by himself and his witnesses, and that all he did was to act in self-defense; that he used no vile and opprobrious language towards Barnhart on the occasion in which a disagreement, arose as to whether Briggs was wrong or Barnhart was wrong; if a disagreement arose, and Barnhart was the-aggressor, and that all Briggs did was to defend himself, —then he could not b'e convicted, although his defending himself would be technically fighting the other party."

We think the points of error relied upon were not well assigned.

The conviction will be affirmed.

The other Justices concurred.


author: Long, J.

text:
    Julius Wanner v. Charles Mears.

      Practice in Supreme Court — Assignments of error — Negligence— Towage.

    1. An assignment that “the circuit judge erred in charging the-jury and in giving the requests for plaintiff found on pages-184-140 of record” cannot be considered, it appearing that the pages cited contain many statements by the court in which the law is correctly stated, whatever may be said of some of them.
    2. In a suit to recover the value of a sailboat lost, as claimed by the plaintiff, through the carelessness of the defendant, it-appeared that the defendant towed plaintiff’s scow, to which the sailboat was attached, across a lake, for the purpose of reaching a sunken vessel, which the plaintiff was to raise for the defendant; that the plaintiff was on the scow, and, after the sailboat was safely across the lake, the steamer turned to-go up the shore, and the sailboat capsized; that, upon plaintiff’s signal, the steamer slackened her speed, and plaintiff drew the sailboat alongside the scow, and signaled the steamer to go ahead, he thinking they were so near shore she might run the distance; that the sailboat towed in that way for a short distance, when she “chawed her line off near the stem, and went off, at least drifted away.” And it is held that, from the plaintiff’s own showing, he was present, and gave the directions what to do; that, if any one was at fault, it.was not the defendant, and the court erred in permitting a recovery.
    Error to Oceana. (Dickerman, J.)
    Submitted on briefs October 5, 1894.
    Decided December 7, 1894.
    Case. Defendant brings error. .
    Reversed.
    The facts-are stated in the opinion.

      James Brassington (Nelson BeLong, of counsel), for appellant.

      F. W. Cook, for plaintiff.
   Long, J.

August 10, 1891, plaintiff and wife gave to-defendant a chattel mortgage on their wrecking scow and outfit for $500, to secure the payment of their note of like amount, due on or before one year from date. The parties at that time all lived in Chicago, 111., and the mortgage was given and filed there. The mortgage contained a clause giving the mortgagors the right of possession until default made in payment, and also the following stipulation:

“Or if the mortgagee, his executors, administrators, or assigns, shall feel he is insecure or unsafe, or shall fear diminution, removal, or waste of said property, or if the mortgagors shall sell or assign, or attempt to sell or assign, the said goods and chattels, * * * then, and in any or either of the aforesaid cases, all of said note and sum of money, both principal and interest, shall, at' the option of said mortgagee or his executors, * * * become at once due and payable, and the said mort.gagee, his executors, administrators, or assigns, or any of them, shall thereupon have the right to take immediate possession of said property, * * * and may remove .and sell and dispose of the said property, or any part thereof,” etc.

September 23, 1891, defendant took possession of the property by virtue of this clause in the mortgage, and, as the defendant says, “because the plaintiff threatened to -take the property away to Muskegon or elsewhere, and I was fearful I would lose my security.” Defendant advertised the property for sale on October 1, 1891. * September ■30 plaintiff tendered defendant the sum of $70 in money .and an account for services rendered, which he claimed, with the $70, amounted to enough to discharge the mortgage. This tender was refused, and, defendant refusing to •surrender the property, plaintiff brought this suit to recover the value of the mortgaged property, and also in the same action claimed to recover for the value of a sailboat which he claimed was lost by the carelessness and negligence of the defendant. On the trial in the court below before a jury, the plaintiff had judgment for the .amount claimed

Several errors are assigned, but the principal ones relate to the rulings of the court in the charge, and the refusal -to charge as requested.

The court charged the jury, in relation to the sailboat, -that, if it was lost through the carelessness and negligence •of the defendant, plaintiff would be entitled to recover its value. It is contended that this was error, for the reason that there was no evidence given which would warrant the finding that it was lost by defendant’s negligence. It appears that on September 3, 1891, defendant wrote plaintiff at Chicago to come with his outfit to Silver Lake, •Oceana county, Mich., to raise the sunken vessel, the Vesta V., belonging to defendant. Defendant towed plaintiff’s scow with his steamer Eumbell, the sailboat-being tied to the scow. According to plaintiff’s testimony, he was on the scow, and saw that the sailboat was safely across the lake until the Eumbell turned to go up the-shore, when he noticed the sailboat capsize. He signaled the Eumbell. She slackened speed. He drew the sailboat-alongside the scow, and signaled the Eumbell to go ahead, because he thought they were so near shore she might run the distance. He says: “The sailboat towed that way for a short distance. Finally she chawed her line off near the stem, and went off; at least drifted away.” This is plaintiff’s'own version of the loss. He was there, and himself gave directions what to do. Certainly, from this showing, if any one was at fault, it was hot the defendant; and the court was in error in permitting a recovery for the-loss of the sailboat.

The work done for the defendant by plaintiff was in. raising the Vesta V., which he seeks to have applied as-payment on his mortgage.

“The circuit judge erred in charging the jury and in giving the requests for plaintiff found on pages 134-140 of' record.” Evidently this assignment relates to all the pages, from 134 to 139, inclusive; but these pages contain many statements by the court in which the law is correctly-stated, whatever may be said of some of them. It is too-well settled that such an assignment cannot be considered to need comment here.

We have -carefully considered the other claimed errors,, and they need no discussion, as on a new trial the rights-of the parties will probably be fully protected.

It is claimed by the plaintiff, however, that the case-ought not to be reversed, even if there be error found in reference to the charge about the sailboat, 'as the amount could be deducted from the judgment, and, with that-deduction, the judgment affirmed. The testimony in the-•case is too uncertain for us to determine what value the jury placed upon the sailboat.

The judgment is reversed, and a new trial granted.

The other Justices concurred.


author: Hooker, J.

text:
    Charles D. Childs v. William B. Pellett et al.

      Rqwity pleading — Multifariousness — Partnership — Use of firm, name — Interest in real estate — Mortgage by one partner —Retiring member — Inability for firm debts— Payment — Renewals of bank notes.

    1. While the court may, of its own motion, raise the question of multifariousness, it is not bound to do so, or to permit the defendants to raise it upon the hearing where full justice can apparently be done upon the record.
    2. The use by one partner of the firm name in indorsing his personal note, given to a bank in renewal of his individual note held by it as security for a loan, the proceeds of which he contributed to the firm capital in consideration of his admission as a member, is not within the scope of the partnership business, and, if so used without the consent of his copartners, the bank cannot hold the firm as indorser.
    3. The owner of a manufacturing business conveyed to his brother, with whom he formed a partnership, an undivided one-half of the land used in connection with the business. Subsequently each brother deeded an undivided one-sixth of the land to a third person, who was admitted into the firm. It was understood between the partners that the land should be partnership property, and that each partner should hold his undivided interest for the purposes of the partnership. And it is held that the land is subject to the payment of the debts of the firm

      4. One of the brothers retired' from the firm under the following arrangement with his copartners: He sold to his brother his one-third interest in the firm business, and agreed to sell him ■ his one-third interest in the real estate when he should pay 'him $2,000, being tbe remainder of the purchase price agreed to be paid for all of his interest in the firm assets. The remaining partners, who succeeded to the business of the firm under a new firm name, agreed- that the retiring partner might hold said undivided one-third of the real estate as .security for the payment of said $3,000, and released him from Ml liability for existing debts. And it is held that it was within their power to do this; that, as between said retiring partner and themselves, they had no right to treat said interest in said real estate as partnership property for the purpose of adjusting accounts between themselves, without ■discharging the lien of the retiring partner upon it; that, if he held it in trust for the partnership, it was upon the con■dition that the remaining partners pay said $2,000; that this ■i§ true also as to creditors of the new firm, who have no ■greater rights as against said retiring partner in relation to ■said one-third interest in the real-estate than the firm had; but that said arrangement cannot deprive the creditors of the ■old firm of the right to the application of said interest in the real estate to the satisfaction of their claims, if it should ■become necessary, as all of the property of the retiring partner, including his said interest in the real estate, would be subject to such debts after all other partnership property should be exhausted, and therefore the rights of such partner must depend upon the question of his release by the creditors of the original firm.
    5. Where the title to an undivided interest in partnership lands is vested in one member of the firm, a mortgage executed by him thereon to secure a firm debt is valid, and as to such interest has precedence over the claims of general creditors; but such a mortgage, if given to secure the individual obligation of the mortgagor, must be postponed- to the payment of partnership debts.
    <8. Whatever may be the rule in other cases, in the absence of evidence of a contrary intention, renewals of notes at a bank ought always to be regarded as payment, because the. banks themselves so regard them.
    Appeal from Genesee. (Moore, J., presiding.)
    Argued •October 9, 1894
    Decided December 7, 1894.
    Bill for tbe dissolution of a partnership, an accounting, ¡the appointment of a receiver, and tbe cancellation of certain mortgages. Defendants appeal.
    Decree modified, and affirmed.
    The facts are stated in the opinion.

      Wisner, Lee & Aitlcen, for complainant.

      George B. Gold, for defendant First National Bank.

      Lurand & Carton, for defendants Pellett.
   Hooker, J.

Prior to the year 1880, defendant William B. Pellett was the owner of a sash and blind factory, in which he carried on business in the city of Flint. In January, 1881, his brother, John J. Pellett, engaged with him in the business, putting in additional capital, and receiving from William B. Pellett a deed of an undivided one-half of the real estate. In 1887 these parties arranged with the complainant, Childs, to become a member of the-firm. He was to put in $5,000 in cash against the property of the firm then known as William B. Pellett & Co., the new firm to assume outstanding obligations, which included a debt of the firm to John J. Pellett of $3,500, and did not include a debt of $1,000, which the firm owed one Archie Brown. This debt had been secured by a real-estate mortgage upon the factory, but it was discharged by Archie Brown, so that the Pelletts could give-to complainant a clear title to the undivided one-third of the-real estate. This deed was given, and the complainant put into the concern $5,000 in cash. Of this sum $2,500-was borrowed of the First National Bank of Flint, one-of the defendants, upon the note of C9mplainant, which note, or a note given in renewal of the same, had upon it the name of the new firm, Pellett Bros. & Co., placed there unwarrantably by complainant, without the consent, or knowledge of the Pelletts, and upon notes given in renewal, against their protest. This obligation is outstanding. The firm of Pellett Bros. & Co. obtained credit at the First National Bank, taking up outstanding obligations, excepi $3,000 of the $3,500 owing to John J. Pellett, with money borrowed at the bank.

On July 15, 1890, John J. Pellett went out of the concern, under an arrangement with his partners substantially as follows: John sold to his brother, William, his one-third interest in the business, and agreed to sell him his one-third interest in the real estate when he should pay him $2,000 in addition to the sum paid down. William B. Pellett was to have a two-thirds and complainant a third interest in the new firm, which was to be known as the Pellett Table Company. The new firm gave its note for $3,000 to John J. Pellett for the amount due him from the firm. The notes'of the new firm were given to the bank in* renewal of notes o'f the' old firm as they fell due. Complainant claims that the indebtedness to the bank was not increased, and it so appears. The business did not prosper, and an agreement was made between the Pellett Table Company, the bank, and one La Due, parties of the first, second, and third parts, respectively, dated December 26, 1890, which provided that on account of the company taking La Due as foreman and manager, the bank should pay for such lumber as the company should have delivered at its yard, the same not to exceed 500,000-feet at one time, the title to remain in the bank, and should sell the same to the company on weekly payments» It was also agreed that the company might deliver to the bank its manufactured tables, at a price and in lots mentioned. The sum received in excess of this price and expenses of sale was to be applied on the indebtedness to the.bank. This agreement was to be in force during the year 1891. La Due entered upon the discharge of his duties under the contract, but William B. Pellett became dissatisfied, and on July 7, 1891, he mortgaged the one-third interest in the real estate which stood in his name to his brother, John, to secure the sum of $8,000 which the firm owed John, and on the 18th of August he joined with John in a mortgage of $1,175 to Archie Brown, upon his claim against them, which was still unpaid. On September 8, 1891, the complainant executed, in the name of the firm, a chattel mortgage to the bank, covering all of the personal property of the firm, for the sum of $9,182.33.

At the expiration of the La Due contract the complainant filed the bill in this cause, making both of the Pelletts, the bank, and Archie Brown parties. • The bill asserts that the Pelletts procured Childs' assent to engage' in the business in the first instance by fraudulent representations concerning the valué of the plant and business and the amount of the firm debts; that the claims of Archie Brown and John J. Pellett are fraudulent, and that John J. Pellett is in justice and equity liable to pay his share of the debts of the firm, which is insolvent; and that the real estate, though held in the individual names of the parties, is partnership property, and subject to the debts of the concern. The bill prays that the mortgages held by Pellett and by Brown may be canceled; that John J. Pellett and William B. Pellett, respectively, be required to account to complainant, the firm and its receiver, and the* court, and the former required to pay his proportion of the firm debts; that the bank also be required to account with the parties mentioned and the court for the money received under the La Due contract, and be enjoined from foreclosing its chattel mortgage; that the real estate mentioned be decreed to. be partnership property, and applied to the payment of the debts of the firm; that a receiver may be appointed to ascertain the validity of the -debts, and pay those found to be valid, under the direction of the court, and to continue or close up the business of the firm.

The Pelletts joined in an answer, in which they deny fraud in inducing complainant to become a member of the firm, assert complainant’s fraudulent use of the firm’s name in indorsing his $2,500 note, allege that the John J. Pellett claim of $3,000 was and is a valid obligation of the firm, and that the amount of $1,175 was justly due to Archie Brown from them at the date of his mortgage, allege a fraudulent conspiracy by Childs and La Due to deprive them of their interest in and right of control of the business and property, and, impliedly at least, that the First National Bank was a party to said fraudulent conspiracy. Said answer denies the validity of the chattel mortgage, for the reason that it was given without the consent of William B. Pellett, and also because the property was already in the custody of the bank, as security for its debt, and was to remain so until the succeeding January, 1892. It avers the validity of both mortgages given by the Pelletts upon the real estate, admits the right to an. accounting, but denies complainant’s right to any other relief. It also denies any liability upon the part of John J. Pellett for the debts of the firm.

The bank files an answer, claiming the benefits of a cross-bill. It denies all fraudulent combination upon its part, alleges the existence of a present claim against the old firm, and that John J. Pellett is liable thereon. It claims priority over the mortgages given by the Pelletts, which it charges to have been made with .the intention of defrauding the bank, the firm being insolvent. It asks a receiver, and the adjustment of its claim.

Archie Brown answers, asserting the validity of his claim and mortgage. It seems to be conceded that the Archie Brown mortgage has been purchased by the bank, although our attention has not been called to any evidence thereof.

Counsel for the Pelletts contend that the bill is multifarious, and, though we do not so decide, it is possible that, had the question arisen upon demurrer, it would be open to that criticism, under the decision in the case of Woodruff v. Young, 43 Mich. 548. See Snook v. Pearsall, 95 Mich. 537. If so, it is because of the various charges of fraud between the parties, and not because all are not proper parties to the suit. All have an interest in the accounting, which all seem to admit should be had, and all interested are proper parties. Wales v. Newbould, 9 Mich. 45; 1 Daniell, Ch. Pr. 216, and cases cited. While the court might, of its own motion, raise the question of multifariousness, it is not bound to do so, or to permit defendants to raise it, inasmuch as full justice can apparently be done upon this record. Payne v. Avery, 21 Mich. 524.

Upon a review of the evidence we are convinced that complainant has no just cause to.complain of fraud upon the part of the Pelletts. We also think that the $2,500 note indorsed by the firm is his personal obligation, as between him and them, which it is his duty.to pay. The note of $3,000, given by the firm to John J. Pellett, is a just and valid claim against the firm, drawing interest at 7 per cent, from July 1, 1891. The Archie Brown claim was a valid claim as between him and the Pelletts, but was never such against Childs, or any firm of which he was or is a member. It must be postponed to the payment of the partnership debts, except as hereinafter stated. The Pellett Table Company assumed all other debts owing at the time of its origin by William B. Pellett & Co. or Pellett Bros. & Co., and, as between the Pelletts and Childs, John J. Pellett is not liable upon such obligations.

We find no evidence that the bank was a party to the alleged conspiracy against the Pelletts, and agree with the circuit judge that on the 1st day of January, A. D. 1892, the sum of $12,512.45 was due and owing from the Pellett Table Company to said' bank, and that the sum should bear interest at 7 per cent, from that date. The note of $2,500 before mentioned is not a valid claim against said firm in favor of the bank, for the reason that such use of the firm name for the privatp purposes of complainant was not within the scope of the partnership business, and he never had the consent of 'his partners to use it. "When first used, it was upon a renewal note, and, if it were not, there is nothing to indicate that the bank did not understand' the fact that the complainant, and not the firm, borrowed the money for which this note was given, which was inferable from the fact that he gave his personal ■obligation, if it had no other information.

We will next discuss the interest of John J. Pellett in "the real estate, and the question of his liability to the bank. The real estate originally stood in the name of William B. Pellett alone, unless possibly it be a small parcel. The half of it was deeded to John J. Pellett, and •subsequently each deeded a sixth to Childs. This left the title to an undivided one-third in each. There can be no •doubt that this land was understood to be partnership property between the Pelletts and Childs, and each held his undivided one-third for the benefit and purposes of the partnership. As such it was subject to the payment of the debts of the firm, and perhaps the settlement of accounts between the partners, subject to any dower rights which may exist, but which we cannot consider, as the necessary parties are not before the court. Pars. Partn. §§ 272, 273, and notes. But it was within the power of the partners to dispose of this land, and competent for them to allow John J. Pellett to go out of the firm, taking his undivided one-third with him. This they seem to have done to the extent of agreeing that he should hold it as security for the payment of $2,000 by his brother, William, in a settlement between him and the firm, whereby he sold his interest, and was released from liability upon existing debts. As between him and his partners, they had no' right to treat this undivided one-third as partnership property. for the purpose of adjusting accounts between themselves, without discharging John's lien upon it. If he held it in trust for the partnership, it was upon the condition that they pay the $2,000 due from William. This is true also of creditors of the new firm, who would have no greater rights against John J. Pellett in relation to this property than the firm had. But an arrangement of this kind could not deprive the creditors of the firm of Pellett Bros. & Go. of the right to the application of this property to the satisfaction of their claims, if it should become necessary, for all of the property of John J. Pellett, including this, would be subject to such debts after all other partnership property should be exhausted. Again, the $3,000 mortgage would be upon a footing somewhat similar, for, although it should be held that it was valid as against the new firm, it could not be as against creditors of the old firm, as all of John's property would be subject to levy, after exhaustion of the partnership property. Hence the rights of John J. Pellett as to these items must turn upon the question of his release by the bank from liability upon the indebtedness which originated while he was a partner, which never was paid, and which was represented by notes given in renewal, from time to time, by the new firm, without objection upon the part of the bank, whose cashier testifies that he supposed that the bank could not avoid such release.

The question whether renewal notes extinguish the debt is a vexed one, and is usually one of fact, and the courts have differed somewhat upon the presumptions which arise from the bare fact of renewal by a note bearing the signature of other parties. The subject was discussed in the ease of Nightingale v. Chafee, 11 R. I. 609, where it was held that an agreement to discharge a retiring partner-will not be inferred from the acceptance of the note of the continuing partners. Whatever may be the rule ini other cases, we concur with Prof. Parsons in the opinion that, unless there is evidence of a contrary intention, “ renewals at bank ought always to be regarded as payment because the banks themselves so regard them.” See 2 Pars. Notes & B. (2d ed.) p. 203. In commenting upon the opinion, the court in the Rhode Island case says, “He does not tell us how he knows they so regard them.” This opinion of Prof. Parsons is not to be brushed away by a question. The practices of banks are well known, and from them their understanding may be inferred. Certainly, since the passage of the federal banking law, the whole course of national banks has been at variance with the idea that the original debt continued, and that successive renewals were additional and collateral security to the first obligation. The policy of the law is to require the banks to confine their loans to short-time paper, generally secured by indorsers, who may vary from time to time as the notes are renewed. We think it would be a surprise to those who indorse paper to be told that their obligation remains after the note has been taken up and canceled by successive renewals, each with a different., indorser, and each in its turn taken up and canceled. Smith v. Shelden, 35 Mich. 42. In the present case the-bank received the notes of the new firm after as well as. before the La Due contract was made, and with full; knowledge of the retirement of John J. Pellett, and supposed, as the cashiqr testified, that he was no longer-liable", by reason of the course taken.

We think, therefore, that John J. PelletPs lien of $2,000. is a valid claim upon the undivided third of the land, as is also the mortgage for $3,000 given by William upon the undivided third which stood in his name, said $3,000 being a valid firm debt, and that these have preced•ence over other debts as to those parcels, but not over the claim of Archie Brown, to which they are subject.

This seems to dispose of the questions raised in the case in accordance with the-views of the learned circuit judge, except as regards the mortgages to Archie Brown and John J. Pellett. As to those the decree will be modified as herein indicated. In other respects it will be affirmed, with costs to the defendants the bank and John J. Pellett.

McGrath, O. J., Grant and Montgomery, JJ., eon-curred. Long, J., did not sit.


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    In the Matter of the Estate of Julius Lefevre, Deceased. William Renaud et al., Proponents, v. Rose Pageot et al., Contestants.

      Will — Mental incompetency — Evidence—Declarations,
    .1. On the contest of a will on the ground of the mental incapacity of the testator, the following testimony is inadmissible:
    a — Statements made by one of the legatees, prior to the .death of the testator, that he was crazy.
    b — The statement of a party who, on an occasion not long -prior to the death of the testator, was sent for to draft his will, and who declined to go, that his reason for declining -was that he did not consider the testator capable of making a - will; such testimony being clearly hearsay of the most dam- ; aging kind.
    c — Acts or statements of the testator tending rather to show •that he was irritable than incompetent.
    2. It is competent to show the expressed declarations of the testator as to his intended disposition of his property, even -though made a considerable time (in the present case, 13 years) before the making of the will, and, in the absence of proof of some change in purpose, the remoteness of time when the declarations were made bears rather upon the weight of the testimony than its admissibility.
    Error to "Wayne. (Hosmer, J.)
    Argued October 9, 1894.
    Decided December 7, 1894.
    Appeal from the probate of a will. Proponents bring -error.
    Reversed.
    The facts are stated in the opinion.

      John G. Haiuley, for appellants.

      James E. Pound, for contestants.
   Montgomery, J.

The will of Julius Lefevre was congested on the two grounds of mental incapacity and undue influence. At the close of the testimony the circuit judge withdrew the latter question from the jury. The jury found against the will on the ground of mental incapacity, .and the proponents appeal.

1. It is contended that there was no such evidence of mental incapacity as warranted the court in submitting the case to the jury. No good purpose would be served by setting out the testimony at length, but a careful ex.amination of the record convinces us that there was sufficient evidence to justify the submission of the case to the jury.

2. Lucy Renaud was named as one of the legatees in the will, and contestants were'permitted to offer testimony of statements made by her before the decease of Lefevre, to the effect that he (Lefevre) was crazy. This question is ruled by the case of O’Connor v. Madison, 98 Mich. 183, .and cases cited at pages 190-192.

3. Testimony was given by a witness (Henry Knnze) to •the effect that on an occasion not long prior to Lefevre’s death a messenger came to one Charles F. Peltier, a partner of the witness, with a request that he (Peltier) go to-decedent’s boarding house, and draft a will for him; and the witness was further permitted to testify that Peltier declined to go, and gave as a reason that he did not consider Lefevre capable of making a will. This was clearly hearsay of the most damaging kind. It enabled the contestants to give Mr. Peltier’s unsworn opinion to the jury, and this without any statement of the facts upon which it was based. The impropriety of admitting such testimony could not well have been better demonstrated than it was in the present case. Mr. Peltier was himself after-wards called as a witness, and testified that he had no recollection of having talked with Lefevre for some time before his death, and that it might have been five years before he died, and in his sworn testimony did not show that he had any such knowledge as would have warranted the contestants in asking his opinion as to the mental incapacity of the deceased; and yet his unsworn opinion, which must have been based on hearsay, was before the jury.

4. Numerous other errors are assigned, most of which relate to questions which are not likely to arise on another trial,- and which do not, therefore, require discussion. It. is proper to say, however, that in some instances testimony of acts or statements of deceased was admitted, which tended rather to show that he was irritable than incompetent. Of this,class were his expressions of opinion about Fred Moran and Dr. McG-raw. It appears that litigation had arisen in which he was interested and opposed to Mr. Moran, and his expressions as -to Dr. McGraw were expressions relating to his competency as a physician. However ill-judged his expressions may have been, they did not furnish evidence of mental weakness. As was said in Prentis v. Bates, 93 Mich. 234, 243:

Where the testimony of the witness only goes the length of showing acts which are entirely consistent with sanity, and which have not the slightest tendency to show insanity, it would be a dangerous rule which would permit his opinion to be received.”

We think the cases cited, and other decisions of this Court, furnish a sufficient guide to- control upon a new trial of the case.-

5. We think it was competent to show the expressed declarations of the deceased as to his intended disposition of his property, even though made a considerable time before the making of the will. It is difficult to fix any precise period as the limit in such cases. Testimony which is said to have had a similar tendency in Fraser v. Jennison, 42 Mich. 206, went no further than to tend to prove the existence of friendly relations between the deceased and his relatives. This testimony, standing by itself, might well have been held too remote, but, in the absence of proof of some change in purpose, the remoteness of time when the expression of such an intention is made bears rather upon the weight of the testimony than its admissibility.

For the errors pointed out, the judgment will be reversed* with costs, and a new trial ordered.

The other Justices concurred.


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    The People, ex rel. Louis M. Hartwick, Prosecuting Attorney of Oceana County, v. Albert G. Avery.

      Elections — Validity—Mistakes of officers — Irregularities.
    The appointment by a village council of the president and one of the trustees of the village, who are candidates for office, to act upon the board of election inspectors, and the appointment by said board of another candidate as one of the clerks of the election, and the posting of notices in the nature of instructions to voters, which conform to those provided for by the election law of 1891, instead of 1893, under which latter law the election is to be held, are irregularities, and will not invalidate the election; it appearing that in making and acting under such appointments the council and members of the board of election inspectors acted in good faith, believing that the board was to be appointed under How. Stat. § 2794, and that the provision of the 1893 law, that no person shall act as an inspector who is a candidate for any office to be elected by ballot at the election, did not repeal or alter the section of the statute cited.
    Error to Oceana. (Bussell, J.)
    Submitted on briefs ■October 11, 1894.
    Decided December 7, 1894.
    Information in the nature of quo warranto to test the title of respondent to the office of trustee of the village ■of Shelby. ’ Delator brings error.
    Affirmed.
    The facts are stated in the opinion.

      L. M. Hartwick (A. Q. Rutherford, of counsel.), for .appellant.

      A. E. Router and Bundy <& Travis, for respondent.
   Hooker, J.

An information in the nature of quo warranto was filed in the circuit court for the county of ■Oceana, to try the title of the defendant, Albert Q-. Avery, to the office of trustee of the village of Shelby. The findings ef fact show that Avery received a majority of the votes cast at said election.

Two questions arise in the case:

1. At the time of such election, William H. Barry and George W. Woodward held the offices of president and trustee of said village, respectively. They were also candidates for the offices of president and street commissioner, respectively, at said election, and Edward B. Gaylord was a candidate for trustee. Said Barry and Woodward were appointed by the village council to act upon the board of election inspectors at said election, and said Gaylord was-appointed by said board as one of the clerks of said election. In making and acting under such appointments the-council and members of the board acted in good faith, believing that the election board was to be appointed under How. Stat. § 2794, and that the provision of Act No. 202, Laws of 1893, providing that “no person shall act as an inspector who is a candidate for any office to be elected by ballot at the election,” did not repeal or alter the statutory provision referred to, governing village elections, and prescribing that the president and clerk of the village and one of the trustees, or any three of the trustees, to be appointed by the council, shall be the inspectors of the election, and that the president, when present, shall be chairman, and the others shall be clerks, of the board of inspectors. There is nothing in the record to show that the result of the election was in any respect different from what it would have been had other persons officiated as inspectors, or had these persons not been candidates upon the ballot.

2. Notices in the nature of instructions to the voter were posted, but, instead of being in exact conformity to-the law of 1893, were such as were prescribed by the law of 1891.

It is contended that, for the reasons given, the election. was void; but we think otherwise. The electors are not to be deprived of the result of their votes at an election by the mistake of election officers, when it does not appear to have changed the result. Under repeated decisions it is settled that the matters relied on here were irregularities, and did not invalidate the election. People v. Bates, 11 Mich. 362; People v. Higgins, 3 Id. 233; People v. Cicott, 16 Id. 283; Adsit v. Secretary of State, 84 Id. 420; Farrington v. Turner, 53 Id. 27; Loranger v. Navarre, 102 Id. 259; Taylor v. Taylor, 10 Minn. 107; State v. Bernier (Minn.), 38 N. W. Rep. 368.

The judgment of the circuit court will therefore be affirmed.

The other Justices concurred.


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    David Turner v. The St. Clair Tunnel Company.

      Practice in circuit court — Motion to quash service of process— Trial of issue — Railroad companies — Sufficiency of service.

    1. In a personal injury case against a railroad company, the defendant moved to set aside the service of the declaration on the ground that the person upon whom service was made was not an agent or officer of the defendant company upon whom process could be served so as to bind the defendant. At the time set for the hearing of the motion, the plaintiff demanded an issue, the form of which he tendered to the court. Defendant’s counsel thereupon asked for the same time in which to plead or demur as he would be entitled to in case of the service of a declaration. This request was refused, but the court continued the hearing over two days for that purpose, at the expiration of which time the court, upon motion of plaintiff and against the defendant’s objection, entered an order framing an issue, and, by consent of counsel for both parties, the issue thus framed was set for trial before tbe court for a day five days later. The defendant excepted to this direction, except-as to the waiver of a jury and the time of trial. And it is held that the case is ruled by Haywood v. Johnson, 41 Mich. 605, where it was •said ¿hat, “instead of proceeding to raise an issue by the formal and somewhat dilatory course by pleading, it is perfectly admissible for the court, in case the plaintiff wishes to ■control the point on an issue joined, to frame an issue on the basis of the motion, and then proceed without unnecessary delay to try it, and get a determination of the fact on the record, with the same effect as though the issue had been introduced by pleading.”

      2. 3 How. Stat. § 8137, which, provides that a summons or a copy of the declaration in any suit against a corporation shall be-served on the presiding officer, cashier, secretary, or treasurer, or any other officer or agent of such corporation, and 8 How. Stat. § 8147, which provides for the service of process in suits-against railroad companies upon any -station agent or ticket, agent at any station or depot along the line or at the end of' the railroad of such company, both apply to the service of process upon railroad companies, it being intended by section 8137 to extend, rather than restrict, such service.

      Certiorari to St. Clair. (Vance, J.)
    Argued October 12, 1894.
    Decided December 7, 1894.
    Defendant brings certiorari to review an order denying a motion to quash the service of a declaration.
    Affirmed.
    The facts are stated in the opinion.

      Atkinson & Wolcott, for petitioner.

      Chadwick <& Mol twain, for plaintiff.

       SUGGESTION UPON THE RECORD, AND TRIAL OP ISSUE JOINED THEREON.
      For statutory provisions, see How. Stat. §§ 7761-7763, 7766, 7767, which provide:
      a — That “whenever a suggestion shall be made upon the record, or in any stage of the proceedings, in any cause, which the adverse party shall have a right to controvert, a copy of such suggestion ■shall be served upon the adverse party or his attorney, in the same manner as other pleadings, and such party may plead thereto, according to the practice of the court, in .the same manner, and within the same time, as to a declaration.”
      b — That “if an issue of fact be joined upon any such suggestion, the same shall be tried, and judgment rendered thereon, as on other issues.”
      c — That “the party making such suggestion may be nonsuited, and may have judgment of non pros, or discontinuance entered against him, for the same causes, and in the same cases, as in ■suits at law.”
      d — That “when there shall be a motion or other proceeding in any court of record, in which it shall be necessary for either ■party to have the deposition of any witness who shall have refused voluntarily to make his deposition, the court may direct a commission to be issued to one or more persons, inhabitants of the county in which such witness resides, to take his testimony.”
      e — That “such witness may be subpoenaed to attend and testify •before such commissioners in the same manner as before referees, and with the like effect, and obedience to such subpoena shall be enforced in the same manner.”

        Illustrative Cases.

      1. Stringer v. Dean, 61 Mich. 196, where plaintiff recovered a judgment in a suit commenced by attachment, defendant being published in for want of personal service. On May 5 thereafter the defendant moved the court to set aside the judgment and quash the writ of attachment, on the ground, among others, that, as the affidavit failed to show that either of the parties resided in the county where the suit was commenced, it should have shown that the defendant was a non-resident of the State, or that he had no property in the county where he resided subj'ect to attachment. In support of said motion the defendant filed an affidavit showing that both he and the plaintiff were residents of another county than that in which the suit was brought, and that at the time of the commencement of the suit he was -possessed of personal property subject to attachment in the county where he-resided. An order was made giving the defendant until May 22' to file a further affidavit in support of the motion, and giving the plaintiff until June 4 to file counter-affidavits, or, at his election, frame an issue under the statute. Defendant complied with the order, and on September 11 plaintiff elected in writing to frame an issue, and served notice of such election on defendant’s attorney, and on September 14 entered a motion for leave to frame an jssue to try the question of defendant’s possession of personal property as averred in his affidavit, excusing his laches because of his inability to find any statute under which to frame such issue. And it was held that, unless some jurisdictional defect appeared upon the face of the proceedings, the plaintiff was entitled to frame an issue under his motion, and contest the questions raised, outside of the record, and at his election try the same before a jury, and that his delay in making his election under the order did not deprive him of such right.
      2. Muskegon Booming Company v. Circuit Judge, 97 Mich. 622, where plaintiffs, after entering a motion for a new trial, and after noticing the motion for hearing, presented a petition to the court, setting forth said facts, and averring that for the purposes of die motion it was necessary to have the deposition of a certain émployé of the defendant who had refused voluntarily to make his deposition in that behalf, and praying that a commission be issued to take said deposition. An order was made that a commission issue. The defendant applied for mandamus to vacate the order, and the application was denied.

       For cases bearing upon the question of who. is an officer or agent, within the meaning of the statutes authorizing the service of process in certain cases upon any “officer or agent” of a corporation, see Kirby Carpenter Co. v. Trombley, 101 Mich. 447, and note.

   Long, J.

This controversy arises over the sufficiency of the service of the declaration by which suit was commenced upon the defendant company, and the rulings of the court in framing an issue to determine the force of such service. Defendant entered a motion to quash the service on the ground that one F. C. Kenney, upon whom the service-was made, was not an agent or officer of the defendant, company upon whom process could be served which would bind the defendant. On the hearing of this motion the plaintiff demanded an issue, and tendered the form of such issue to the court. Thereupon the defendant’s counsel requested that he be allowed the same time to plead or demur as he would be entitled to in case of service of declaration. This was denied, büt the court continued the hearing for three days for that purpose, at which time the court, against defendant’s objection, framed the issue as follows:

“Was F. C. Kenney, the person on whom the declaration filed in this cause was served, such an officer, agent, or employé of the defendant, or so connected with its business, on January 26, 1894, as that service could be made on him, and bind the defendant, under the laws of' this State?”

This issue, which seems to have been consented to by plaintiff’s counsel, was set for hearing before the court for a day five days thereafter.

This ruling of the court in framing the issue, and refusing the request for time to plead or demur, raises the first question presented, but we think the case ruled by Haywood v. Johnson, 41 Mich. 605, in which it was said that,—

“ Instead of proceeding to raise an issue by the formal and somewhat dilatory course by pleading, it was perfectly admissible for the court, in case the plaintiff wished to control the point on an issue joined, to frame an issue on the basis of the motion, and then proceed without unnecessary delay to try it, and get a determination of the fact on the record, with the same effect as though the issue had been introduced by pleading.”

The issue thus framed was heard before the court. Mr. Kenney was sworn as a witness, and from his testimony the court made a finding as follows:

“It is my conclusion from the testimony that Kenney was the representative of the tunnel company, in charge of its business at this point; that he had charge of and managed all passenger and freight business, including the running of trains through the tunnel; that he had control of and directed the running of all trains on the American side, west to the Grand Trunk Junction, about three miles west from St. Clair river, and about two miles west of the tunnel portal, and about one and a half miles west of the tunnel station; that he was in charge of all the tunnel company’s business and property at that point, and was the person highest in authority there and in St. Clair county; that he had charge of the tunnel yards, kept the pay roll, and was himself on the pay roll of the defendant company; that he was jointly paid by the C. & G. T. By. Co., the G-. T. Ey. Co., and the tunnel company, and his salary and office expenses were paid one-third by each; that he was directly responsible to the general superintendent, located at Montreal, for his action; that his jurisdiction extended over the property and management of the business of the tunnel company, both on the American and Canadian sides of the St. Clair river; that he issued passes through the tunnel; that he issued orders in his own name in reference to the tunnel company’s business, when necessary. It was not claimed on the argument, but was treated as a conceded fact, that neither the presiding officer, secretary, treasurer, nor cashier of the defendant company lived in St. Clair county.
“From these and other facts shown by the testimony, it is my conclusion that he represented the general superintendent at this point, and was such an agent as is contemplated by section 8137, 3 How. Stat., on whom service could be made.”

The testimony of Mr. Kenney warrants the findings of fact made by the court, and the only question which can arise is whether Mr. Kenney, under the facts found, was such an agent as provided by 3 How. Stat. § 8137, upon whom process could be served. This section provides:

“ Suits against corporations may be commenced by writs of summons or by declaration in the same manner that personal actions may be commenced against individuals, and such writ or a copy of such declaration in any suit against a corporation shall be served on the presiding officer, cashier, secretary, or treasurer, or any other officer or agent of such corporation, or by leaving the same at the banking house or office of such corporation, and may be served in any county in the State where the plaintiff resides: Provided, that in any county of the State where said plaintiff may reside, other than the one wherein the principal ‘office of such corporation may be located, a writ of attachment may be the first process against such corporation, which shall be served in the same manner as other' writs of attachment issuing out of the court wherein suit is commenced; and, upon the return of such service being made, such corporation' shall be deemed to be in court, and the like proceedings, as near as may be, shall be thereupon had as in cases of suits against individuals. * * * Provided further, that the attachment proceedings as herein provided for shall not apply to railroad companies or corporations whose right of way, or any part of the same, is within the boundaries of the State of Michigan, nor to navigation companies or corporations.”

It is contended by counsel for defendant that this act does not apply to railroad companies as to service of process, but that 3 How. Stat. § 8147, makes the only provision for the service of process upon railroad companies. That section provides:

“Whenever in any suit or proceeding, either in law or equity, it shall become necessary to serve any process, notice, or writing upon any railroad company in this State, it shall be sufficient to serve the same upon any station agent or ticket agent at any station or depot along the line or at the end of the railroad of such company; and such service shall be deemed as good and effectual as if made on the officers, stockholders, or members, or either of them, of such company.”

The court below held that section 8137 did not repeal section 8147, as was contended by plaintiff's counsel. In this construction, counsel for defendant agree with the learned circuit judge, but contend that the words, “or 'any other officer or agent of such corporation,” contained in section 8137, have no application to railroad companies. We cannot agree with this contention. That section evidently was intended to apply to railroad companies as well as to other corporations. If it were not so intended by the Legislature, it is difficult to conceive why the section should provide that the attachment proceedings authorized by it should not apply to railroad companies. We see no difficulty in sustaining the two sections, and applying each to the service of process upon railroad companies. Section 8137 was intended to extend, rather than restrict, such service. Counsel, in their briefs, have gone into the history of the various enactments providing for service of process upon corporations, but we think section 8137 too plain to need further discussion. The court below was right in holding the service good.

Some question is raised whether certiorari was the proper remedy, but we have concluded to dispose of the case •on its merits, without regard to that question.

The order below is affirmed.

The other Justices concurred.


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    William Kehl v. William A. Dunn.

      Exemptions — Piano.
    A piano cannot be classed as “ household goods, furniture, or utensils,” within the meaning of How. Stat. § 7686, subd. 7, which exempts to each householder, from levy and sale under any execution, or upon any final .process of a court, “all household goods, furniture, and utensils, not exceeding in value $250.”
    Error to Houghton. (Hubbell, J.)
    Submitted on briefs October 24, 1894.
    Decided December 7, 1894.
    Replevin. Defendant brings error.
    Reversed, and judgment entered for defendant.
    The facts are stated in the ■opinion.

      Ohadbourne & Rees, for appellant.

      A. R. Gray, for plaintiff.
   Long, J.

This cause was tried before the court without n jury upon the following agreed facts: Plaintiff was the owner and in possession of a piano of the value of $200. The defendant, as sheriff, levied an execution in favor of Simon Karger upon the piano and other property belonging to plaintiff, and presented a list of the property so levied upon to the plaintiff, who then and there selected the piano as his exemption, under subdivision 7 of section 7686, How. Stat. At the time of the levy, plaintiff was a householder, living in Houghton with his family, consisting of himself and wife and four children, all sons, aged respectively 15, 13, 12, and 8 years. The piano was, and had been for two years prior to the levy, kept in the house of plaintiff, and used for the instruction of his children in music. Plaintiff demanded possession of the piano,which was refused, and this action of replevin was brought by him and the piano taken on the writ. On the trial the court found the title in plaintiff, and awarded him judgment for costs.

The only question in the case is whether, under the provisions of the statute above cited, this piano is exempt. This subdivision exempts “to each householder all household goods, furniture, and utensils, not exceeding in value $250.” Counsel for plaintiff has presented a brief and argument in the case to sustain this judgment that is certainly very ingenious, but no case is cited, under a statute like ours, which upholds his contention. While these statutes are construed with great liberality in favor of exemptions, yet we think the language employed in subdivision 7 is not open to a construction which would exempt a piano. A piano cannot be classed as household goods, furniture, or utensils, within the meaning of the statute. The court below was in error in holding it exempt. See Tanner v. Billings, 18 Wis. 163; Dunlap v. Edgerton, 30 Vt. 224.

Judgment reversed, and judgment entered here for defendant.

The other Justices concurred.


author: McGrath, C. J.

text:
    David Brock v. The Dwelling House Insurance Company.

      Fire insurance — Conditions of policy — Appraisal—Bight to bring suit.

    1. After proofs of loss have been made, it is the duty of a fire insurance company, within a reasonable time, to make manifest its disagreement with the amount claimed by such proofs.
    2. A condition in a fire insurance policy that a loss thereunder shall not become payable until 60 days after the notice, ascertainment, estimate, and satisfactory proof of the loss required in the policy have been received by the company, including an award by appraisers when appraisal has been required, makes such appraisal, when required, a condition precedent to the right to sue; and the company has a reasonable time within the 60 days after proofs of loss have been furnished in which to move with respect to the ascertainment or estimate of the loss.
    3. A policy-holder made his proofs of loss, and, without waiting for any action by the company, asked for the appointment of appraisers, and they were appointed. And it is held that the-insured cannot be heard to say that, inasmuch as no effort, had been made by the parties looking to an adjustment, the-appointment of appraisers was premature, and that an appraisal must be regarded as having been required within the language-of the pqlicy.
    4. Where the conduct of the appraiser appointed by the company-in refusing to agree on an umpire is inexcusable, and virtually amounts to a refusal to proceed with the appraisement,, the fact that the appraisement was not concluded before suit, was brought will not bar an action on the policy. So held,, where the company selected as its appraiser an insurance-adjuster who resided in a city 135 miles distant from the city where the fire occurred, and where the appraiser selected by the insured resided. The two appraisers disagreed as to the selection of the third appraiser. The company’s appraiser suggested the names of three persons, residing at a distance from the place where the fire occurred, and the appraiser for the insured offered the names of 12 residents of the locality from which the jury, in case of a suit, would be drawn. The-. appraiser for the company assigned no valid reason for a refusal to accept one of the 12, the only reason given being that he did not care to take the chances of getting an appraiser that would be partial
    Error to Bay. (Maxwell, J.)
    Submitted on briefs October 24, 1894.
    Decided December 7, 1894.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Shepard & Lyon, for appellant.

      Pratt, Van Kleeck & Gilbert, for plaintiff.
   McGrath, C. J.

The policy upon which suit is brought contains the following provisions:

This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained of estimated according to such actual cash value, with proper deduction for depreciation, however caused, and shall in ¡no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality. Said ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided; and, the amount of loss ■or damage having been thus determined, the sum for -which this company is liable pursuant to this policy shall ibe payable 60 days after due notice, ascertainment, .estimate, and satisfactory proof of the loss have been ¡received by this company in accordance with the terms of ■this policy. It shall be optional, however, with this company to take all or any part of the articles at such ascertained or appraised value, and also to repair, rebuild, or replace the property lost or damaged with other of like kind and quality within a reasonable time, on giving ■.notice, within 30 days after the receipt of the proof herein -.required, of its intention so to do; but there can be no ¡abandonment to this company of the property described. ■.* * *
In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two ■competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen .shall first select a competent and disinterested umpire. The appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of' any two shall be prima facie evidence of the amount of such loss. The parties thereto shall pay the appraiser respectively selected by them, and shall bear equally the expenses of the appraisal and umpire.
This company shall not be held' to have waived any provision or condition of this policy, or any forfeiture thereof, by any requirement, act, or proceeding on its part relating to the appraisal, or to any examination herein provided for; and the loss shall not become payable until 60 days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required. * * * * *
No suit or action on this policy, for the recovery of .any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within 12 months next after the fire.”

The property insured consisted of a dwelling-house. The loss occurred July 25, 1892. After the fire, the company’s .agent visited the locality, and had a conversation relative to the loss. An offer was made by the agent, which, in view of the subsequent correspondence, must be regarded as an offer of compromise, rather than an acknowledgment ■of liability on the part of the company, or an estimate of the amount of the loss. At this interview, a proposition was made to have an appraisal, but the company’s agent said that he didn’t propose or didn’t care to arbitrate the matter.

On August 16, 1892, the company wrote to plaintiff as follows;

“■ On the 6th inst., instead of receiving a call from you, I had one from Mr. Van Kleeck, ,who said he was your attorney in the matter of yonr claim under policy 731,375» That there be no misunderstanding in this matter, I would remind you that in my conversation with you I did not state what position the company would take in the matter, and did neither admit nor deny liability on the part of the company in your favor. Neither did I in my conversation with Mr. Van Kleeck admit or deny such liability. Be-serving to the company all its rights under the policy, I remain.”

Again, on August 30, the company wrote:

“ Yours of the 17th inst. at hand, inclosing affidavit of David Brock in re claim under policy 731,375. Whether the policy was valid or void at the time of the fire, I do not wish to be understood as expressing any opinion, either directly or by implication. In case of a policy void at time of the fire, no form of affidavit, however fully it might set forth the facts, would be operative to inject validity into the claim; whereas, if it were valid at time of fire, an affidavit in manner and form like the one referred to would not be a compliance with the requirements of the policy, to which I refer you. As this affidavit, therefore, could in neither contingency have any force or effect, I return the same without either demanding or waiving full compliance on the part of the insured with the requirements of the policy.
“Neither admitting nor denying liability on the part of the company, nor waiving or extending any of the terms, provisions, conditions, or requirements of the policy, I remain.”

On September 1, 1892, plaintiff sent on proofs of loss, and in the letter suggested an appraisal of the property. On September 9 plaintiff wrote again, asking for a reply to the letter of the Lst. On September 12, defendant wrote as follows:

“I would say that the company is willing to have the value of the building at the time of the fire appraised, as per the terms of the policy, with the understanding that in so doing it reserves all its rights in the matter, and that nothing so far done is to be construed as a waiver of its rights under the policy, nor an acknowledgment of any liability on its part in favor of Mr. Brock.”

On September 13 plaintiff replied, naming one Callender as appraiser. On September 16 defendant wrote, objecting to Callender, and saying:

If you iuant an appraisal, you must, in accordance with the policy, select a competent and disinterested man.”

On January 12, 1893, plaintiff wrote as follows:

“Messrs. Shepard & Lyon, on inquiry from them yesterday, say that they have done all, in the insurance matter of David Brock’s claim under policy 731,375 against your company, that they are authorized to do. We have furnished all information we have in regard to the loss. Mr. Brock has presented himself for examination under oath, at your request. It seems to us that the only thing necessary to make this matter complete is for you to send us draft and take up your policy. As to the matter of appraisal suggested to you in ours of September 13, we desire to say that, so far as Brock is concerned, he has no desire to insist or oppose an appraisal. We have waited since that date for you to act in that matter if you desire so to do. We now say, as we understand the matter, Brock is entitled to his money, and if we do not hear from you at once, with draft inclosed, we shall conclude that you are in possession of some fact which you conclude is a complete bar to his right to make such claim. As to such matters, if any, others than us must decide.”

In reply defendant wrote:

" I would say that an appraisal was demanded by Mr. Brock, agreed to by the company with the understanding that it would not-ill-any event prejudice its rights under the policy, and should not be a waiver of any of the conditions of the policy, or of a forfeiture thereof (see the conditions of the policy, lines 92 and 93, Mich. Stand., cited in a former letter to you), and we have for some time been waiting for Mr. Brock to name an appraiser,— some person possessing the attributes required of him by the policy. We are still waiting for Mr. Brock to name his appraiser, and prefer that he abide by his election to submit the matter to appraisal, as provided by the policy.”

: On' January 18, 1893, plaintiff' wrote nominating one Huntley as appraiser, and on January 24 defendant wrote nominating one Hilton, an insurance adjuster residing at Grand Rapids. On February 1 plaintiff wrote as follows:

“Pursuant to your letter of January 24, ’93, Mr. Charles A. Hilton came here on the 27th of January, and he, together with Mr. Huntley, signed a declaration to appraise the property insured under the Brock policy. They then endeavored to agree upon an umpire. We understand that Mr. Hilton objected to any person from this county to act as such umpire. At any rate, they were unable to agree on one, and did nothing on that •day. Mr. Hilton went away, saying he would return January 31, and complete the matter. Mr. Huntley came that day, and waited the whole of the day for Mr. Hilton, and again to-day. Tour Mr. Hilton has not appeared, ■and no word has been received from him in regard to the matter at all. We therefore conclude you have determined to abandon the matter of appraisal. We shall therefore expect a decided answer whether you now propose to pay the claim made under the policy.”

On February 3 defendant wrote that the general agent was out of the city, but that Hilton had been communicated with. On February 5 Hilton wrote Huntley, submitting the names of three persons, one &■ resident of Grand Rapids, another of Lansing, and one Patzer, of ■Saginaw. Huntley replied, submitting the names of 12 residents of Bay City, and saying:

“I don’t think it necessary to go outside of Bay City in order to find an impartial and honest contractor and builder to act as umpire in case we don’t agree, and take the liberty of sending you this list fco choose from. Any •one of them will be acceptable to me. The most of them are .strangers to me, being known only by sight and reputation. I am willing to throw out those that are acquainted with me ■or acquainted with the facts in any way, and send you list hoping you will find some one who will be acceptable to us both.”

On February 11 Hilton wrote Huntley as follows:

“ I do not question the honesty, ability, or integrity of any contractor in Bay City, but, not being acquainted with any of them, I consider the chances of getting one that would be partial in his ruling and decisions. I do not care to take the chances, and cannot consent to the selection of an umpire from Bay City or West Bay City. We certainly ought to be able to find some one outside that would be satisfactory to both of us. When we can agree upon such an one, I am ready to proceed. If you cannot accept any one of the names that I proposed, you can make a list of from three to six names, selected from different localities, and submit to me, and I will see if there is not. some one of them that I can accept.”

Huntley replied as follows:

“Not being acquainted with the gentlemen you name in yours of February 5, or their business standing, I don’t care to take the chances; and, knowing by reputation the names on the list I sent you on February 7, I think a. judicious selection can be made from them.”

Nothing further was done, and on February 16, 1893,. suit was commenced.

On February 11 defendant’s general agent wrote, alleging his absence from the city when plaintiff’s letter of the 1st. was received, and saying:

“I write Mr. Hilton to-night inquiring as to his version of the story. My impression is that you would like to. deprive us of the privilege of a fair appraisal under the policy by refusing to agree to any fair proposition that might eminate from Mr. Hilton, but I mean that, if we have any rights under the policy, they shall be maintained. Yon toill bear in mind that the demand for appraisal came originally from you.”

To the declaration herein, defendant pleaded the general issue, with notice that upon the trial it would insist in its defense that plaintiff had failed to comply with the-terms of the policy, and that said policy was inoperative and void, and the defendant released from all liability thereunder, for the following reasons:

“First. That the plaintiff was not the sole and unconditional owner of the property insured, free from all liens whatever, hut that one William Brock had'an interest and ownership in said property as well as said plaintiff at and previous to. the time of said fire, whereby said policy became void.
Second. This defendant will show that the said policy became inoperative and void, and that plaintiff is not entitled to maintain action or suit upon said policy, for the reason that there was a disagreement as to the amount of loss under said policy, and the amount of said loss is required by the terms of said policy to be ascertained by two competent and disinterested appraisers, and because the amount of the loss has not been so estimated or appraised, and no award has been made by any arbitrators as to the amount of such loss, and therefore the plaintiff' is not entitled to maintain this action for loss under said policy.
Third. Because this defendant has 60 days after such appraisal and adjustment of loss under said policy in which to pay the same, and that such term of 60 days has not yet elapsed since any appraisal and adjustment of the amount of said loss has been had.”

At the close of the proofs, defendant’s counsel requested the ’court to instruct the jury that plaintiff had not established title to the property; that the policy appeared to have been transferred to plaintiff, whereas the conveyance was made to William and David Brock, and thereafter William conveyed to David, a notation of which did not follow on the policy, and a knowledge thereof was not brought home to the defendant; and that, inasmuch as arbitration proceedings had been agreed upon and were pending, and arbitrators were, on the day that the suit was brought, negotiating with reference to the selection of an umpire, the action was prematurely brought, and plaintiff could not recover. The court, however, instructed the.jury that—

“An agreement to arbitrate prevents the commencement of suit while the agreement is in force, and the parties are actually acting under it. An agreement to arbitrate will take a suit already pending out of court, hut, if they fail to act on it, still the suit may be maintained. In this «ase, the policy provides that the insured shall select one man, and the company select another man, and that they two shall pick a competent, disinterested party for an umpire. You have heard what the letters say in regard to that subject, and you have heard the testimony of the witnesses. Now, in order to have an arbitration of any effect, both parties must conduct themselves with absolute fairness. You have heard the negotiations between the two arbitrators, and that they did not agree. Unless an arbitration has gone farther than merely the appointing of the two men and their efforts to agree upon a third party, after the lapse of time that elapsed after this fire, and before the commencement of this suit, I charge you that •the clause for an arbitration is not a bar to this action.”

The provisions of this policy are 1 evidently intended to enable the parties thereto to agree between themselves as to' the amount of the loss, and, in the event of a failure to'agree, to submit the same to arbitration. After proofs •of loss have been made, it is clearly the duty of the company, within a reasonable time, to make manifest its disagreement with the amount claimed by such proofs. The policy expressly provides that—

The loss shall .not become payable until 60 days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers, when appraisal has been required.”

This provision makes such appraisal, “when required,” a condition precedent to the right to sue. The defendant has a reasonable time within the 60 days after proofs of loss have been furnished within which to move with respect to the ascertainment or estimate of the loss. Had the time elapsed and no move been made in that direction, the plaintiff would undoubtedly have had the right to bring suit. In the present case, however, plaintiff, with his proofs of loss, and without waiting for any action by the company, prompted undoubtedly by what had occurred between the parties before proofs of loss had been furnished, asked for the appointment of appraisers, and they were appointed. The plaintiff cannot now be heard to say that,, inasmuch as no effort had been made by the parties looking to an adjustment, -the appointment of appraisers was premature. An appraisal must be regarded as having been required within the language of the policy.

Another question, however, presents itself. The terms of the policy do not contemplate, in case of a disagreement between the parties, that partisans shall then be-appointed as appraisers. It is contemplated that the two-appraisers appointed' may agree, but the parties themselves are as likely to agree as two persons selected because of individual bias. As is' said in Bradshaw v. Insurance Co., 137 N. Y. 137, the term disinterested ” does not mean simply lack ■ of pecuniary interest, but requires the appraiser to be one not biased or prejudiced. The defendant selected as its appraiser an insurance adjuster residing-at Grand Rapids, a point 135 miles distant from the place ■where the fire occurred. The two disagreed as to the selection of an umpire. Defendant's appraiser then suggested the names of three persons, one of whom resided in. Grand Rapids, another at Lansing, and the third at SaginaV. The agreement does not contemplate that the umpire shall be selected at random, or without some knowledge on the part of both appraisers as to his competency and fitness. Parties living 'in the locality would naturally be best qualified to pass upon the question of' values, and an appraiser would not be under obligation to-make trips to other localities than that of the fire to ascertain as to the propriety of appointing the person, suggested as an umpire. The agreement contemplates an inexpensive method of settlement. Strangers to the locality are not usually selected as appraisers, and, in case of the-inability-of the appraisers to agree, a third party known to both, and in whom both have confidence, is supposed to be selected. An investigation as to tbe parties named by defendant’s appraiser would have been productive of expense and delay. The fact that defendant selected a person who resided 135 miles distant, and who, for that reason, was unacquainted with the residents of the locality of the loss, and was not competent to judge of their fitness, does not affect the reasonableness -of the rule, and did not impose the duty of travel and investigation upon the appraiser appointed by plaintiff. The facts are not disputed. Defendant’s appraiser insisted upon the appointment of a person with whom he was presumably acquainted, who was a stranger to the locality and to plaintiff’s' appraiser. The latter offered the names of 12 residents of the locality from which the jury, in case of suit, would be drawn. No valid reason is assigned for a refusal to accept one of the 12, and the only reason given is that he did not care to take the chances of getting one that would be partial. The requirement that plaintiff’s appraiser should go into other portions of the State to make inquiry as to the fitness of the persons named was not a reasonable one. The suggestion that some one be' selected from the locality of the fire was not unreasonable. It is well settled that where the conduct of the company’s appraiser in refusing to agree on an umpire is ■ inexcusable, and. virtually amounts to a refusal to proceed with the appraisement, the fact that the appraisement was not concluded before suit brought will not bar an action on the policy, McCullough v. Insurance Co., 113 Mo. 606; Bishop v. Insurance Co., 130 N. Y. 488; Uhrig v. Insurance Co., 101 Id. 362; Bradshaw v. Insurance Co., 137 Id. 137. In the: McCullough case the court say:

“The appraisers could not agree as to the value of the property destroyed or the amount of damages, sustained, nor could they agree on the third man. McG-raw then -.suggested the names of four or five persons, some of whom resided in the county, some at Boonville, and some at •other points not far distant. White would not agree to ■either of them, and suggested the names of some others, ■living in St. Joseph, Kansas City, and St. Louis, at least 200 miles distant from where the fire occurred. McGraw ■would not agree to any of the persons suggested by White. White then left for Louisville, Kentucky, and did not return again. McGraw’s objection to the persons suggested by White was because of the remoteness at which they resided from the place of the fire, and their want of knowledge of the value of the property in that locality, but White would not agree to any other person. His testimony was not taken in this case, nor is there any •excuse offered for his refusal to accept some one of the persons as umpire that were suggested by McGraw. His course under the circumstances, to say the least of it, is ■not to be commended, was unreasonable, unjust, and tantamount to a refusal to proceed with the appraisement. Justice and fair dealing did not require the plaintiffs to wait longer than they did before instituting their suit.”

The judgment is therefore affirmed.

The other Justices concurred.