text:
    KIRKPATRICK v. MEHALITCH.

    1. Corporations — Goods Sold and Delivered — Individual Liability op Stockholders — Judgments.
    A judgment against a corporation upon its acceptance of a draft for the purchase price of goods sold to it under an ar- . rangement with its treasurer that an accounting between it and the vendor Should be had at stated intervals, and that 30, 60, and 90 day acceptances should be given and received for the amounts found due, is, in the absence of evidence that the accepted draft was itself received as payment, a judgment for goods, wares, and merchandise, within the meaning of the statute (1 How. Stat. § 3940) making stockholders individually liable on such judgments after execution against the corporation has been returned unsatisfied.
    2. Same — Extension op Time — Release op Surety.
    The contention that a stockholder’s relation to the corporation with respect to goods sold and delivered to it is that of surety, and that an extension of time to the corporation by taking its acceptance at a certain number of days for the purchase price operates to release the surety, is not applicable to a case where the giving of the acceptance is one of the terms of the contract under which the sale was made.
    Error to Houghton; Hubbell, J.
    Submitted June 15, 1897.
    Decided July 13, 1897.

      Proceedings by Allan Kirkpatrick against William Mebalitcli under 1 How. Stat. § 4886 et seq., to enforce the individual liability of defendant for goods sold to a corporation in which he was a stockholder. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Dunstan & Hcmchette, for appellant.

      A. T. Streeter, for appellee.

       Rehearing denied September 15, 1897.

   Hooker, J.

The plaintiff sold produce, etc., to the Mechanics & Miners’ Co-operative Association, a corporation organized under chapter 116, 1 H5w. Stat., under an arrangement made with the treasurer that an accounting should be had on each pay-day, and that 30, 60, and 90 day acceptances should be given and received for the amount found due. The goods which are the basis of this action were sold in May and June; and after pay-day, June 21,1895, two drafts were made out, each for $280.98, for a bill of $561.96, and were accepted by the treasurer. The following February, two justice’s judgments were taken upon these. Transcripts were filed and circuit court executions were taken out, and, being returned unsatisfied, the plaintiff filed a petition under 1 How. Stat. § 4888, and after obtaining a report by the secretary, giving the names of the stockholders of the corporation, had citation issued to each stockholder. Shares of stock are $10 each, and the defendant was the owner of two shares.

The object of the proceeding by petition was to collect such judgment from stockholders, under section 6 of the organic act (1 How. Stat. § 3940), which provides:

“Stockholders and directors shall be severally and jointly liable for all debts for labor performed for said corporation; and for all goods, wares, and merchandise sold and delivered to any such association, each of the stockholders or directors thereof shall be held liable to the amount of his capital stock therein, and no more; but no execution shall issue against such director or stockholder individually, until a judgment be first obtained for such goods, wares, and merchandise against said association, and execution thereon be returned unsatisfied, in whole or in part.”

The important questions upon the record are two: (1) Were the judgments for goods, wares, and merchandise ? The defendant contends that they were not. (2) Did the taking of acceptances extend the time for the payment, and release the stockholder? The defendant maintains that it had this effect.

There can be no doubt that the obligation was incurred upon the purchase of goods, wares, and merchandise. It is contended that the judgment was upon an acceptance, and therefore not “a judgment for goods, wares, and merchandise,” within the statute, — -insisting upon a strict and literal interpretation of the statute. The price of these articles was determined by a contract, as were also the terms of payment. The acceptances should not he considered any more than evidence of the obligation. There is nothing to indicate that they were designed as payment, or that the original demand was lessened in any degree by them. We think that the circuit court erroneously held that a judgment based upon these acceptances, and showing that they were giyen for goods, wares, and merchandise, was not a judgment for goods, wares, and merchandise.

Again, if, as contended, the defendant is a surety of the corporation, as held in Hanson v. Donkersley, 37 Mich. 184, and an extension of time within which the debt might be paid would release him, there is no opportunity for the application of the doctrine in this case, for the acceptances did not have the effect of extending the time beyond that fixed by the terms of the contract. There is nothing in the act that prohibits a purchase by the corporation on time, or relieves the stockholder from liability because goods are so purchased.

Upon the argument it was urged, against the reversal of this judgment, that costs to the extent of $3,400 might be incurred in collecting these judgments of $600; but if the stockholders will recognize their legal obligations, and perform them, there will be no opportunity for taxing: costs.

The judgment is reversed, and a new trial ordered.

Grant, Montgomery, and Moore, JJ., concurred. Long, C. J., did not sit.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

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    HURTON v. HURTON.
    1. Appeal — Revocation of Will — Objection not Raised Below.
    A judgment refusing the probate of a will executed in triplicate will not be affirmed by the Supreme Court upon the point, raised for the first time in that court, that it is to be presumed that two of the three copies of the will, which were not accounted for on the trial, were destroyed by the testator, and that the will was thereby revoked.
    2. Contest of Will — Evidence—Hearsay.
    The admission of the testimony of a witness for the contestant of a .will, as to what her husband told her with reference to the intention of the proponent to keep them away from the testator, is prejudicial error.
    Error to Houghton; Hubbell, J.
    Submitted June 15, 1897.
    Decided July 13, 1897.
    Edward Hurton, Jr., presented for probate the will of Edward Hurton, Sr., deceased, which was contested by Michael Hurton. Probate was denied, and proponent-appealed to the circuit court. Prom a judgment for contestant, proponent brings error.
    Reversed.

      Dunstan & Hanchette, for appellant.

      A. T. Streeter, for appellee.
   Hooker, J.

Edward Hurton, a native of Ireland, came to the United States many years ago, and for a time lived in Minnesota, but died at the home of his nephew, Edward Hurton, Jr., in Michigan; Edward, Jr., being the son of Michael Hurton, the brother of Edward, Sr., also a resident of Michigan. Shortly before his death, Edward Hurton made a will, which was refused admission to probate and circuit courts, and the proceeding is now before us on error to the circuit court.

The undisputed evidence shows that, at the request of the testator, the proponent’s wife wrote a letter for the testator to the custodian of a former will in Minnesota, asking that it be sent to him, and that when he received it he burned it.' A short time afterwards he called upon counsel, who drew a new will. Three copies of the paper were made, one being given to counsel with direction to preserve it, one was given to the proponent by the testator, and one was kept by him. The first-mentioned copy was the one offered for probate. In this court, apparently for the first time, counsel raises the point that, the other copies not being accounted for, it is to be presumed that they were destroyed by the testator, and that the will was thereby revoked. We are disinclined to affirm this case upon the sole ground that the copies were not accounted for, as we see no evidence that the question was raised below, but rather that it was tacitly understood that they were not destroyed. It is quite improbable that they were destroyed, and, if contestant desired to make such a claim, it should have been done earlier. We do not discuss the legal phases of this question, as it is not improbable that upon another trial these copies may be produced, thus eliminating the question from the case.

Counsel for the proponent contend that they were entitled to a direction that the jury find for the proponent. We are not greatly impressed with the strength of the contestant’s showing, but, in view of the fact that the case must be reversed upon another ground, and the fact that the record is silent as to the whereabouts of the two copies of the will, we will not discuss the testimony to determine that there was or was not enough to go to the jury upon the question of incompetency or undue influence. It was a claim of the contestant that the proponent unduly influenced the testator, and an attempt was made to show that the testator was denied freedom of intercourse with friends and relatives after the will was made. One Regina Wright, on examination by counsel for contestant (on whose behalf she was called), testified as follows:

“I am the wife of John Wright, and live in West Hancock. Knew Edward Hurton, the deceased, during his lifetime. Saw him three times at his brother’s house, and three times at his nephew’s (Ed.’s) house. I was there the last Sunday he was living, in the evening. The next morning I asked the old gentleman if I could come and see him again, and Ed. said, ‘Why, certainly you can,’ out loud, so the old gentleman heard it, and he muttered to me, ‘I don’t know about that.’
“Q. Why did you ask the old gentleman if you could see him? (To which question the counsel for the proponent then and there objected to the same as irrelevant and immaterial. The court overruled the objection, and thereupon the counsel for the proponent took an exception.)
“A. My husband told me that Edward Hurton, Jr., intended to put us out the night before. I never heard Ed. say anything about visitors coming there. (Thereupon counsel for the proponent made a motion that the last answer of the witness be stricken from the record, because she repeated what her husband said to her, it being merely hearsay. The court overruled the objection, and thereupon the counsel for the proponent took an exception.)”

This testimony was hearsay, and not admissible. If it was a fact, and counsel desired to prove that proponent intended to do such a thing, the witness who knew it should have been called for the purpose. Its tendency was to prejudice the proponent.

The order of the circuit judge is reversed, and a new trial ordered.

Grant, Montgomery, and Moore, JJ., concurred. Long, C. J., did not sit.


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    NELSON v. KILBRIDE.
    Assumpsit — Sale op Timber by Trespasser — Recovery op Proceeds— Sufficiency op Declaration.
    One whose timber has been removed, and sold by a trespasser may recover the proceeds in an action of assumpsit, as money received for his use, and the declaration need not aver the tort. Watson v. Stever, 25 Mich. 386, distinguished.
    Error to Leelanau; Corbett, J.
    Submitted June 15, 1897.
    Decided July 13, 1897.

      Assumpsit by Albert Nelson against James Kilbride for money had and received. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Twecldle & Cross, for appellant.

      Pratt & Davis, for appellee.
   Hooker, J.

The single question raised upon this record is whether an action could be maintained upon a count for money had and received, when the defendant had sold and received money for timber which he cut and removed from the plaintiff’s premises under circumstances amounting to a trespass. It is not denied that a recovery may be had in such a case in assumpsit, under 2 How. Stat. § 8024, but it is insisted that the declaration must be special, alleging the trespass, and the waiver thereof. Incidentally it is said that title to land was in question, or rather the question of boundary; but this is not discussed by the defendant, and the case of Hart v. Hart, 48 Mich. 175, seems in point. If it can be said that the question of boundary amounted to a question of title, it was not pleaded, nor was the justice asked to certify the case upon the claim that the testimony showed it to be involved. See Tiff. Just. Guide (4th Ed.), 654. There is nothing in the record to show that title or boundary was in dispute before the justice, and the case was taken by appeal to the circuit. The objection was to any proof under the declaration, because it did not allege the trespass and the waiver.

Counsel for the plaintiff rely upon a count for money had and received, and a right to recover, based on the receipt of money by the defendant upon the sale of the timber unlawfully cut. Error is alleged upon the refusal to allow a recovery of such sum, the court having refused to admit any evidence under the declaration, holding that, although a recovery might be had in assumpsit, it was necessary to allege the trespass and conversion. In Watson v. Stever, 25 Mich. 386, assumpsit was brought to recover the value of logs which Watson had taken possession of, claiming to have bought them of third persons. The circuit judge permitted a recovery, and this court said that “there are not wanting decisions which support the ruling,” and a number of cases are cited in a note t.o that case where recovery in assumpsit was permitted, although the defendant had not sold the property. But it was held in the case cited that assumpsit would not lie, as the defendant ‘ ‘ was not shoiun to have sold any of the logs.” The court said, however:

“If one has taken possession of property, and sold or disposed of it, and received money or money’s worth therefor, the owner is not compellable to treat him as a wrong-doer, but may affirm the sale as made on his behalf, and demand in this form of action the benefit of the transaction. But we cannot safely say the law will go very much further than this in implying a promise, where the circumstances repel all implication of a promise in fact. Damages for a trespass are not, in general, recoverable in assumpsit j and, in the case of the taking of personal property, it is generally held essential that a sale by the defendant should be shown. ”

The statement of the rule is supported by the citation of many authorities. The distinction which apparently is sought to be drawn is that, where there is the conversion «of property which the defendant had in his possession by virtue of contract relations between himself and the plaintiff, assumpsit will lie, and recovery may be had upon the common counts; but that, where the taking is in the first instance tortious, such is not the case, and the tort must be alleged. If it be conceded that under our decisions such allegations are necessary where there has been no sale, we think that cases of conversion by sale may be distinguished, although possession was acquired through trespass. In this case, for instance, there are two technical wrongs: First, in committing the trespass and removing the timber; second, the sale of timber, which, by the act of severing, though wrongful, became personalty. Until severed, it was not subject to conversion, and wherever it might be moved to the conversion might be charged. See Greeley v. Stilson, 27 Mich. 153. It did not become the property of the defendant by reason ■of his unlawful cutting, and if the plaintiff chose to forego the right to sue for the injury to the land, and to bring an action for the value of the personal property converted, we see no reason why such action might not be the same as though the wrongful conversion had not accompanied, or grown out of another wrong; e. g., a trespass. The case of Watson v. Stever, supra, while recognizing the fact that damages for the trespass may not be recovered in assumpsit, clearly indicates that money received for personal property taken unlawfully and sold may be recovered upon the theory that the law implies a promise to pay to the owner the money received for his property. The difficulty with the defendant’s contention, is that ■ he insists on assuming that this is an action brought to recover damages for a trespass, which it is not, but is an action brought to recover money which the law regards as received for the use and benefit of the plaintiff, because it is the purchase price of his property.

The judgment is reversed, and a hew trial ordered.

The other Justices concurred.


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      In re ALBERS’ PETITION.
    1. Vacation of Streets — Consent of City.
    The power of the courts to vacate a city street upon petition of the abutting land owners is not necessarily subject to the acquiescence of the city authorities. It should, however, when opposed by them, be sparingly exercised.

      2. Same — Statutes—Legislative and Judicial Recognition.
    Any question as to whether chapter 32, 1 How. Stat., providing for “the recording of town plats, and for vacating the same,” is applicable to city plats as well, has been settled in the affirmative by legislative and judicial recognition.
    3. Same — Title—Compensation.
    A city has no proprietary interest in the public streets which entitles it to compensation when a street is vacated on petition of the abutting owners.

      i. Same — Common Council — Jurisdiction of Courts.
    The general jurisdiction of the circuit court over proceedings to vacate a city plat under chapter 32, 1 How. Stat., was not supplanted as to streets in the city of Grand Rapids by the provisions of the charter conferring certain general authority over streets upon the common council, or by the statute (2 How. Stat. § 6576) giving the superior court of Grand Rapids exclusive jurisdiction of all actions of a civil nature, at law or in equity, “against the city” or any of its officers.

      Certiorari to Kent; Grove, J.
    Submitted June 15, 1897.
    Decided July 13, 1897.
    Gerrit EL Albers and others petitioned the circuit court for the vacation of a portion of Trowbridge street, in the city of Grand Rapids. The petition was granted, and the city brings certiorari.

    Affirmed.

      Henry J. Felker, city attorney (Harvey Joslin, of counsel), for appellant.

      Taggart, Knappen & Denison and Arthur R. Rood, for appellees.
   Hooker, J.

We are asked to review, on certiorari, an order of the circuit court for the county of Kent vacating portions of Trowbridge street, in the city of Grand Rapids, upon petition of all land owners abutting on said portions of the street. The proceeding rests upon-chapter 32, 1 How. Stat., especially section 1476 et seq. Several questions are raised by the brief of counsel who appear and defend upon behalf of the city, which is apparently unwilling that the street should be vacated.

While we are of the opinion that the power of vacating streets in opposition to the judgment and desire of the city authorities should be sparingly exercised, we cannot say that acquiescence by the city government is essential to the validity of such order. And we think there is nothing in the point that this statute does not apply to plats in cities, but only to town plats. The act mentions city plats in its first section (1 How. Stat. § 1473), and appears to relate to thickly-settled communities, such as villages and cities. As counsel for the petitioners suggest, judicial and legislative recognition seem to have set the matter at rest, as shown by the following authorities quoted from the brief of counsel: City of Detroit v. Railroad Co., 23 Mich. 204, 206; Act No. 102, Pub. Acts 1891.

The law is attacked as being unconstitutional, for the reason that it permits the taking of property without compensation, though counsel support the contention with neither argument nor authority, further than to say that “the property proposed to be taken is valued at $6,000, which is sought to be donated to abutting owners.” We understand it to be contended that this property belongs to the city, and that this order takes it from the city without compensation. Our understanding is that the city has no proprietary interest in the land, all of its authority over it growing out of its legal duty to maintain the public ways, which are placed in its charge. City of Detroit v. Railway Co., 76 Mich. 421. Such interest in the land is in the abutting proprietors ordinarily, and is apparently so in this instance, and by the express provision of the statute their rights are recognized. This statute has been applied in many cases, and its constitutionality does not .appear to have been questioned.

The next proposition relied upon is that the common council, or at furthest the superior court of Grand Rapids, and not the circuit court, has jurisdiction of proceedings to vacate streets in that city. We are surprised that subdivision 39 of section 10 of title 3 of the charter of Grand Rapids (Act No. 444, Local Acts 1895) should be quoted as giving the council authority “to establish, construct, maintain, repair, enlarge, and discontinue streets,” etc. It reads as follows: “To establish, construct, maintain, repair, enlarge, and discontinue within the highways, streets, avenues, lanes, alleys, and public places of said city, such bridges, culverts, sewers, drains, lateral drains, and sewers as the common council may see jit, voith a view to the proper draining and sewerage of said city.” We ought not to be called upon to verify quotations of laws, and, when quoted, expect that counsel will exercise care that they will not be so garbled as to change their obvious meaning. We think there is nothing in this or the other charter provisions cited that supplants the law conferring jurisdiction upon the courts in cases of this character. See Case v. Frey, 34 Mich. 251.

It remains to consider the alleged jurisdiction of the superior court. The following is the law supposed to divest the circuit court of jurisdiction:

“And said superior court shall have exclusive jurisdiction of all actions of a civil nature, at law or in equity, which may be brought by or against the board of education of said city, or by or against said city or any of its officers.” Act No. 113, Pub. Acts 1881, § 13; 3 How. Stat. § 6576.

It is argued that this was an action against the city, as its object was to take from it a portion of a public street owned and controlled by it as a street. Technically, this was not an action at law or suit in chancery, but a statutory proceeding, under a power conferred upon circuit courts. And the city is not a necessary party. We h.ave shown that the city does not own the land, and it is not suggested by the act that the city may appear and-oppose the application, though we should hesitate to say that it might not be heard in opposition where any “reasonable objection to making such alteration or vacation” could be shown.

We think the circuit court had jurisdiction, and that its order should be affirmed. It is therefore so ordered.

The other Justices concurred.


author: Moore, J.

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    STATE v. CITY OF DETROIT.
    3. Personal Injuries — Evidence—Physical Conditions.
    Evidence that the plaintiff in an action for personal injuries had led the life of a common prostitute for five years prior to the time of receiving the injuries for which suit is brought is admissible, in connection with evidence that the physical conditions ascribed by plaintiff to the injuries commonly result from sexual excesses.
    ■ñ. Same — Married Women — Damages—Medical Attendance.
    In an action by a married woman for personal injuries, an instruction that the damages recoverable include the moneys necessarily paid for medicinal treatment and care is erroneous, in the absence of evidence that such expenditure was made from her individual estate.
    Error to Wayne; Donovan, J.
    Submitted June 16, 1897.
    Decided July 13, 1897.
    Case by Josephine State against the city of Detroit for personal injuries. Plaintiff died pending the trial, and the cause was revived in the name of her administrator, Thomas State. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Arthur Webster (C. D. Joslyn, of counsel), for appellant.

      B. T. Prentis, for appellee.
   Moore, J.

Plaintiff, as administrator, recovered a judgment against defendant for injuries received by Josephine State, which plaintiff claims resulted from a fall from a carriage because of a defective pavement. Defendant appeals.

It is the claim of the plaintiff that on> the night of November 25, 1887, Josephine State was thrown from a carriage, and received injuries from which she never recovered, and which finally resulted in her becoming a physical and mental wreck. It was the claim of the defendant that if Mrs. State was hurt at all it was but slightly; that she fully recovered from her hurt, and was engaged in active business; and that the developments subsequent to the injury were not the result of the injury, but were the result of sexual excesses practiced by her prior to the injury. Dr. Orr, a witness for plaintiff, after describing the condition in which he found Mrs. State, and stating that her condition might be caused by a fall or an injury, on the cross-examination testified that such a condition might be caused by dissipation. Dr. Inglis testified that such a condition was very often the result of excesses, and especially of sexual excesses. The defendant then sought to show that deceased, prior to the injury, led the life of a common prostitute; that she led a fast life; and proposed to show the character of her life from 1882 to 1888. This testimony was excluded; we think, improperly. If the injuries received were caused by the fall, the plaintiff was entitled to recover from the city; but if Mrs. State’s condition was brought about, not by the fall, but by the life she led, then her representative was not entitled to recover. The defendant was entitled to have the proof bearing upon that question submitted to the jury.

The deceased was a married woman living with her husband at the time of the injury. The bill of exceptions floes not purport to return all of the testimony, and we do not know just what was shown as to who paid for medical attendance and nursing. Defendant asked the court to charge, “Plaintiff cannot recover for any moneys expended for medicine or nursing.” The trial judge declined to give this request as drawn, but charged the jury, ‘.‘Plaintiff cannot recover for any moneys expended for medicine or nursing, — that is, himself, — for any moneys that he (State) expended. ” Again, after explaining to the jury under what circumstances the plaintiff would be entitled to recover damages, the court said, “The damages in such cases include the moneys necessarily paid for medicinal treatment and care.” This is not a correct statement of the law in relation to a claim for damages by a married woman, who is living with her husband, for medical services and nursing. See Cousins v. Railway Co., 96 Mich. 390, and the many cases there cited.

Other errors are assigned, but, as they are not likely to occur again, it will not be necessary to discuss them.

Judgment is reversed, and new trial ordered.

The other Justices concurred.


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    FINCH v. MODERN WOODMEN OF AMERICA.
    1. Mutual Benefit Societies — Application for Membership— False Representations.
    To tlie question, in an application for membership in a mutual benefit society, “Has any examining physician for a life-insurance company or order declined to recommend your application?” the applicant answered, “No.” The answer was untrue. The application in terms made the truth of each answer a condition precedent to the validity of the certificate of insurance issued thereon, and neither the company nor its agent was advised of the falsity of the statement at the time the risk was accepted. Held, that the certificate was void.
    2. SameI-Collection of Assessments — Waiver of Forfeiture.
    The collection of an assessment from a member of a mutual benefit society does not constitute a waiver by the society of a provision in the benefit certificate that it should be void if the statements contained in the application for membership were untrue, where the officers were not aware of any false statements when they accepted payment.
    3. Witnesses — Matters Within Knowledge of Decedent.
    The statute excluding testimony as to matters which, if true, were equally within the knowledge of deceased, does not apply to third persons not parties to the litigation.
    Error to Marquette; Stone, J.
    Submitted June 16, 1897.
    Decided July 13, 1897.

      Assumpsit by Jane Finch against the Modem Woodmen of America upon a benefit certificate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      F. H. Peters and 8. W. Shaull, for appellant.

      J. G. Johnson, for appellee.
   Moore, J.

The plaintiff is the beneficiary named in a certificate of insurance issued by the defendant, a mutual benefit association, upon the life of Loren C. Finch, her husband. The defendant interposed as a defense that the answers made in the application for insurance were untrue, and that, according to the terms of the contract, the certificate was void. The trial judge directed a verdict in favor of defendant. Plaintiff appeals.

Mr. Finch was a resident of Negaunee. He was solicited by Mr. Byrns, a deputy head consul of defendant, who was authorized to solicit members and to establish camps, to become a member of the camp at Ishpeming, chree miles away. He made a written application, which was filled up by Mr. Byrns, and presented to the Ishpeming camp. The application was at once referred to a committee composed of men who knew Mr. Finch. They at once reported favorably. The camp voted favorably for his admission, and his application was referred to Dr. Andrus, the examining physician of the camp. Mr. Finch appeared for examination, and was examined at least once, probably twice, and perhaps three times. Dr. Andrus found traces of albumen in the urine, and came to the conclusion that Mr. Finch had Bright’s disease, and testified that he so told Mr. Finch. It is claimed on the part of the plaintiff that in an interview between Mrs. Finch, Mr. Peters, her attorney, and Dr. Andrus, the doctor informed them that he saw Mr. Finch but once, and made a partial examination of him. Just what occurred after the examination made by Dr. Andrus on the part of the Ishpeming camp in relation to this examination is not very clearly disclosed. The record which contains the names of rejected applicants does not contain the name of Mr. Finch. The card containing his application is in possession of the camp, and is indorsed with the action of the committee, the result of the balloting, and has written upon it in pencil the word “Rejected.” This is in the handwriting of Mr. Rowley, who was then the secretary of the camp. When it was written does not appear., A little later, Mr. Byrns organized a camp at Negaunee. April 30, 1894, Mr. Finch, made application to become a charter member at the solicitation of Mr. Byrns. His application was filled out by Mr. Byrns. He was examined by the local camp physician, who had known him for some time. His urine was examined. The camp physician regarded him as a good risk, and so reported him. A certificate of insurance was issued to him. He became a member of the Negaunee camp. In the following winter he had la grippe, but seemed to recover from it in the spring, so that he was about his work. Later he was taken ill, and November 24, 1895, died from Bright’s disease, or heart trouble, or both.

The record discloses that, after Mr. Finch became a member of the Negaunee camp, Dr. Andrus had some correspondence with the head physician. Dr. Andrus testified:

“I have corresponded with the ^company in regard to this case, but not since the death.n I don’t remember the exact date I did correspond with the company before the death. I think it was in the fall of 1895. I corresponded with the head physician. I told him of the examination I had made, and of the result of it.”

Mr. Finch, while a member of the Negaunee camp, paid all his dues, including an assessment made November 1, 1895. A number of the neighbors of Mr. Finch were sworn as witnesses, who testified to his appearing to be in excellent health in the spring of 1894 and prior thereto, and there is nothing in the record to show that he was not a desirable risk in the spring of 1894, except what resulted from the examination made by Dr. Andrus.

The application for membership, among other things, contained the following:

“Question: Do you understand the objects, organization, mode of government, and laws of this order, and particularly that part of the laws providing for the qualifications for and restrictions upon membership, and providing for the forfeiture of indemnity for untrue statements or answers in application, or failure to pay dues and assessments ?
“Anszver: Yes. * * * I am not now a member of this order. I have not within six months, and never more than three times, been rejected therein. I have never been expelled from any camp of this order, and am not now under suspension in any such camp.
“Q. If now a member, to what camp do you belong, and what is the amount of your benefit certificate ?
“A. Not a member. * * * I am of sound body and mind, and free from disease or injury. I do hereby consent and agree that this application and the laws of this order shall form the sole basis of my admission to and membership in this order, and that any untrue or fraudulent statements or answers made to the camp physician, or any concealment of facts, intentional or otherwise, in this application, shall forfeit the rights of myself and my beneficiaries to all benefits and privileges therein or arising therefrom.
“Q. Have you ever been rejected by any life-insurance company or mutual benefit association ? If so, give year and company.
“A. No.
UQ. Have you ever made application for life insurance or benefit, and withdrawn same before final action? If so, give year and company.
. “A. No.
“Q. Has any examining physician for life-insurance company or order declined to recommend your application? If so, give name and address.
UA. No.
“Q. Have you ever had difficult, excessive, or scanty urination ?
“A. No.
“Q. Or any disease of the urinary or genital organs ?
“A. No.
“Q. Have you ever had any disease of the following-named organs, or any of the following-named diseases or symptoms: Kidney diseases, * * * ?
“A. No.
“applicant will please note THIS CLAUSE:
“I have verified each of the foregoing answers and ■statements, adopt them as my own, whether written by me or not, and declare and warrant that they are full, complete, and literally true, and I agree that the exact literal truth, of each shall be a condition precedent to any binding contract issued upon the faith of the foregoing answers, and I hereby constitute and make the officers of the local camp and of the Modern Woodmen of America who have aided in making this application my agents for such purpose. I further agree that the foregoing answers and statements, together with the preceding declaration, shall form the basis of the contract between me and the Modern Woodmen of America, and are offered by me as a consideration for the contract applied for, and hereby made a part of any benefit certificate that may be issued on this application, and shall be deemed and taken as a part of such certificate; that this application may be referred to in said benefit certificate as the basis thereof, and that they shall be construed together as one entire contract; and I further agree that, if any answer or statement in this application is not literally true, that my benefit certificate shall be void.”

The benefit certificate contained the following provisions:

“This benefit certificate is issued and accepted only upon the following express warranties, conditions, and agreements: First. That the application of said Loren C. Finch and medical examination, which is made a part thereof, for membership in this order, and which is on file in the office of the head clerk, and is hereby referred to and made a part of this contract for benefit, is true in all respects, and that the literal truth of such application, and each and every part thereof, shall be held to be a strict warranty, and to form the only basis of the liability of this order to such member and to his beneficiary or beneficiaries, the same as fully set forth in this benefit certificate. Second. That should said application, and each and every part thereof, not be literally true, then this benefit certificate shall, as to the member, his beneficiary or beneficiaries, be absolutely null and void.”

Mr. Byrns was called as a witness, and testified, among other things, that, when he took Mr. Finch’s application to become a charter member of the Negaunee camp, he knew he had already made an application for membership in the Ishpeming camp.

“I knew if that application had not been disposed of in some way he would not be eligible to membership in the Negaunee lodge. I knew if he had been rejected be would not be eligible.
“Q. Didn’t you know that if he failed to complete his application he wouldn’t be within six months ?
“A. Well, no; I can’t say that. I didn’t consider that that was an application until he completed the application, — completed the blank, — the medical examination was completed, and I was advised of such completion. I knew something about what had become of his application in the Ishpeming lodge’ from what he had said to me himself.' I understood from Mr. Finch that he had some trouble with the medical examiner. He didn’t propose to complete his examination through him.
“Q. When you wrote the second application, — when you wrote the answer ‘ No’ to this question: ‘ Have you ever made application for life insurance or benefit, and withdrawn the same before final action ? ’ that answer was a false answer ?
“A. No, I didn’t consider it so. The way I interpreted that sentence was a benefit, or some application, — that is, completed that application blank, completed the filling of the application blank, — and then, learning after the application had been drawn that there was a possibility of his being rejected, of withdrawing it in that case, but not before the application had been completed; that is, entirely filled out and signed by the local physician. .1 wrote in the answer ‘No’ to the question, ‘Has any examining physician of any life-insurance company or order declined to recommend your application ? ’ He answered that himself. I wrote the answer in for him. He said he had not been rejected. I was soliciting applications for the Modern Woodmen of America. I was regularly commissioned deputy head consul. That business is to solicit applications, and what I did in that line was done for the company. That was my general business, — soliciting applications for them. I don’t remember whether he took. the application with him when he went to the physician at Ishpeming. I remember a conversation with Mr. Finch, in which he said he would not go to that physician again to be examined. I met him on one occasion, and asked him if he had been to Dr. Andrus for examination. He said he had been, and I asked him how it was, and he said he told him there was something the matter with his urine, and told him to come back again, and intimated to him that albumen was in bis urine. He went back the second time, and I after-wards met Mr. Finch, and inquired if he had completed his examination. He said he had been there again, and he still found a trace of albumen in his urine, and asked him to come back again the third time. I said, ‘You had better go back and complete your examination,’’ and he said — he made tire remark — that he would not go back any more; he didn’t propose to be fooled around in that way, and he wouldn’t go back any more. I tried to prevail on him to go back, and he insisted that he wouldn’t go back. I can’t say exactly how long before he made application to the Negaunee lodge that this conversation took place. At all events, this first application and conversations were all prior to his second application at Negaunee. At the time I took this application in Negaunee, I knew something was the matter with the man’s kidneys. He stated to me something was the matter; he had a trace of albumen. To the question in the application: ‘ Have you had any disease of the following-named organs, or any of the following-named diseases: Kidney disease,’ I wrote in the answer, ‘No.’ I answered it in that way simply because it had not been determined that he had any trouble of that kind. He told me that Dr. Andrus had found a trace of albumen in the urine, but it had not been determined that he had any kidney disease. In every instance Mr. Finch gave me the answers I wrote down.”
Cross-examination:
“In the conversation I had with Mr. Finch, he said he had been to see Dr. Andrus twice. He said Dr. Andrus wanted him to come again. He said he didn’t propose to be fooled around by him, and refused to go back. I have nothing to do with the insurance part of these applications, except to solicit the applications and complete the preliminaries. What I mean by that is, take his application, and submit it in this original instance to the local camp. In the Negaunee instance I didn’t make any card applications at all. I took his application and took all the applications on a charter blank, and then sent them to the local physician for examination. He was a charter member of Negaunee camp. I have nothing further to do with the insurance after they are turned over to the local camp physician, except to see that the beneficiary certificates are properly countersigned,, signed by myself, and properly attested by the signature of the applicant prior to its being delivered to him. I do not pass on these applications in any way. I have no authority to say that the man’s application is all right or otherwise. I have no authority to make contracts for the order. That- is done by other agencies besides myself. My work is to solicit applications, and turn into the regular channel.”
Redirect examination:
“The local physician has a right to reject the applicant. In the first place, the local physician can reject him; in the next place, the head physician can reject him. But, at all events, the local physician or head physician, and the local camp by ballot, are the ones that do the rejecting. And the deputy, in the event of his ascertaining that the moral fitness of the applicant is such as would make him ineligible, he can reject him. Deputy is the position I hold. If it is discovered that an applicant has perpetrated a fraud, or has given an untrue answer, the matter is referred to the board of directors of the head camp.”

It is claimed by the plaintiff that Mr. Byrns had all the knowledge possessed by Mr. Finch, and that his knowledge must be deemed to be the knowledge of the defendant, and that it is now estopped from interposing the defense it seeks to make. While the record is clear that Dr. Andrus rejected Mr. Finch, it is not clear that the camp did, and, if there were no other questions involved, it might perhaps be a question for the jury whether or not the camp did, in fact, reject Mr. Finch. It is urged that Mr. Finch answered truly about the kidney difficulty, and told Mr. Byrns that traces of albumen were found, but that Mr. Byrns did not put down the answer truly; that Mr. Byrns was acting for the company in taking the application, and his knowledge is its knowledge. In all the cases brought to our attention, but one of them has been a case where the application for insurance contained provisions the same as are contained in this application. The case of Baumgart v. Modern Woodmen, 85 Wis. 546, was a case based upon a like application. It is claimed that the answers bind Mr. Finch, irrespective of the knowledge Mr. Byrns might have, because of the language of the application and the certificate. However, with our view of the case, it is not necessary to decide upon the effect of the failure of Mr. Byrns to record the answers to the questions just as they were given to him, or how far Mr. Finch was bound by the answers in the application, if Mr. Byrns had knowledge of the facts. In reply to the question, “Has any examining physician for a life-insurance company or order declined to recommend your application?” the answer was given, “No.” The testimony shows that answer was not true. Dr. Andrus had declined to recommend Mr. Finch, and there is nothing to show that Mr. Finch so informed Mr. Byrns, or that he had knowledge of that fact. On the contrary, the testimony shows that Mr. Finch told him Dr. Andrus wanted Mr. Finch to call again for further examination, and the fair inference from the testimony is that he gave Mr. Byrns to understand that Dr. Andrus had not completed the examination. This was a material and important question. The company was entitled to have it truthfully answered. If the applicant had been rejected by an examining physician within two months, the company had a right to know it. And when it is not made to appear that either the company or its agent had knowledge of the fact, the untrue answer will avoid the policy. Schwarzbach v. Protective Union, 25 W. Va. 622 (52 Am. Rep. 227); Brown v. Insurance Co., 65 Mich. 314 (8 Am. St. Rep. 894); 1 Bac. Ben. Soc. & Life Ins. §§ 218, 230.

It is said, however, that the testimony of Dr. Andrus was improperly admitted, because his testimony was equally within the knowledge of Mr. Finch. Dr. Andrus was not a party to the litigation. The provisions of the statute did not apply to him. His testimony was competent.

It is also urged that, after Mr. Finch became a member of the Negaunee camp, Dr. Andrus communicated to the head physician what facts he knew, and that afterwards an assessment was levied and paid, and that this was a waiver; citing Nibl. Acc. Ins. & Ben. Soc. 565. The trouble with this contention is that the record does not disclose that the officers of the company or its head physician had knowledge of the untrue statements made before any assessment was made, and payment thereof received by the defendant. Nibl. Acc. Ins. & Ben. Soc. 565; Adreveno v. Life Ass’n, 38 Fed. 806; Matt v. Protective Soc., 70 Iowa, 455.

We discover no error in the result reached by the learned trial judge. The judgment is affirmed.

The other Justices concurred,


text:
    KIELDSEN v. BLODGETT.
    1. Appeal — Conflicting Testimony.
    The decree of the circuit judge, based upon the testimony of a few witnesses, who disagreed as to the facts, was not disturbed.
    Husband and Wife — Deed—Consideration.
    A wife’s conveyance of her property in payment of her husband’s debt is supported by a sufficient consideration.
    Appeal from Wexford; Aldrich, J.
    Submitted June 16, 1897.
    Decided July 13, 1897.
    Bill by Flora A. Kieldsen, Minor T. Wheeler, and Nancy H. Bickhart against Delos A. Blodgett and another to set aside a deed. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Sawyer & Bishop (McIntyre & Wetmore, of counsel), for complainants.

      E. E. Haskins, for defendants.
   Hooker, J.

The. complainants’ bill was filed to cancel a deed admitted to bear the signature of Mrs. Kieldsen, upon the ground that it was signed under the supposition that it conveyed property of her husband, and not her separate property. She testified that she was ill in bed, and signed this deed and others for delivery in payment of her husband’s debts, and that she did not hear them read, and that she made no request to be informed of the contents. In this she is corroborated by her mother, and disputed by the notary who took the acknowledgment, who testified that he stated to her what property was covered by each deed, and that this covered the premises mentioned. Her husband is dead. She subsequently sold the property to complainant Wheeler, and he sold it to complainant Bickhart. The deed of the defendants was placed upon record at once, but is said to have been overlooked by the purchasers; the Kieldsens being allowed to keep possession for a time under an arrangement made at the time defendants agreed to take the premises. It is one of those cases where we cannot be sure of doing justice, as all depends on the testimony of two or three witnesses, who are not agreed upon the facts. Under these circumstances, as we have frequently held, we should not disturb the decree made by the circuit judge, who heard the testimony. We have no doubt of the power of a married woman to convey her property in payment of her husband’s debt, and that such conveyance has a sufficient consideration. The legal questions raised are “old straw,” which has been threshed over and over again, and call for no special notice.

The decree of the circuit court is affirmed, with costs.

Grant, Montgomery, and Moore, JJ., concurred. Long, C. J., did not sit.


text:
    GRAY v. CITY OF DETROIT.

    Taxes — Certificate of Treasurer — When Binding Upon City.
    A city whose treasurer is authorized, but not required, to selL and transfer to any person who shall pay the tax or assessment, with costs and charges, all of the interest of the city, in unredeemed land bid in by the city, does not lose its interest in land purchased at a tax sale, by an offer of a prospective mortgagee of the land, on behalf of the owner, to pay to the treasurer all the taxes due thereon; nor is it affected by the omission of such sales from a statement by the treasurer purporting to show the entire amount of unpaid taxes, upon which the mortgagee relied in making the loan.
    Appeal from Wayne; Lillibridge, J.
    Submitted June 16, 1897.
    Decided July 13, 1897.
    Bill by William J. Gray and Robert T. Gray, copartners as Gray & Gray, and George L. Beecher and Luther S. Trowbridge, administrators of the estate of Luther Beecher, deceased, against the city of Detroit, to cancel certain tax sales. From a decree dismissing the bill on demurrer, complainants appeal.
    Affirmed.

      Gray & Gray, for complainants.

      C. D. Joslyn, for defendant.

       Rehearing denied September 15, 1897.

   Hooker, J.

In 1895 William J. Gray and Robert T. Gray were employed by the administrators of the estate of Luther Beecher to examine the title to certain real estate, upon which said administrators were about to, and afterwards did, loan the sum of $20,000. It was found that this land had been sold for taxes, and bid in by the city of Detroit. An offer to pay or purchase these tax bids was made to the clerk in the office of the city treasurer by Mr. Harvey, to whom the loan was to be made, who was informed that they were too busy in the office to give the matter attention at that particular time. The inconvenience of delay was explained, and it was then proposed-by the person in charge of the office to make a statement showing the amount due on said tax sales or bids in the hands of the city. Such certificate was as follows:

“City Treasurer’s Office.
“Detroit, June 7, 1895.
‘ ‘ I hereby certify, according to the records of this office, that there are taxes to the amount of $1,367.40 unpaid to date.
“John ¥. Corcoran.”

The matter was explained to the Grays by Harvey, and they, relying on this certificate, closed the transaction; retaining from the sum ioaned a sufficient sum to pay the amount stated in the certificate, and the further sum of $289.66, to redeem from sale for taxes of 1894. It does not appear how Gray ascertained that this latter purchase was outstanding. The balance of the $20,000 was paid to Harvey. When the Grays went to redeem from the sales, it was found that there had been further sales, not included in the amount certified by the deputy treasurer. The mortgage was foreclosed, and a deficiency of $5,000 resulted, which cannot be collected from the mortgagors. This bill is filed to cancel the sales, and the amount involved is $975. The bill was demurred to upon two grounds: (1) That the complainants are not in privity with the acts of the treasurer; (2) that the city is not bound by the certificate of the treasurer.

The bill states that section 13, chap. 5, of the charter of Detroit, permits the common council to prescribe by ordinance or resolution “other duties” for the treasurer. Chapter 29 of the ordinances authorizes the treasurer to sell and transfer to any person who shall pay the tax or assessment, with costs and charges, all of the interest of the city to unredeemed land bid in by the city. It is further stated that by resolution dated April 2, 1866, the treasurer was empowered to cancel sales, when owners request it, on presentation and surrender of the certificate of sale, properly assigned, and that it has been the custom of the treasurer’s office to cancel the sales, in all such cases, of land sold to the city, where the city still held title under any tax sale, upon full payment. From these various provisions and practices, counsel deduce the conclusion that: “So long as the title is in the city, the sale is open to redemption. The sale is in fact only an embryonic sale, and under such circumstances the sale is no sale until the title passes,” and therefore, so long as the city retains its purchase, it is subject to redemption, and a tender divests the legal effect of the sale. This theory must rest upon the provisions quoted, none of which require the treasurer to sell or transfer the interest of the city, or to cancel sales. He is given authority to do so, and it is said to have been the custom; but it is not alleged that the citizen who wishes to pay or buy can compel acceptance of the tax, costs, and charges, and a transfer or cancellation, nor do these provisions appear to require it. No official duty is created by the provisions as stated in the bill. This deputy treasurer was under no obligation to accept payment at the time it was offered by Harvey or his agent, and his attempt to accommodate Mr. Harvey was an unofficial act, for which the city is not responsible. In Hand v. Auditor General, 112 Mich. 597, we held that an owner, who seasonably sought to pay his tax, and was prevented by misinformation received from the county treasurer, who was in duty bound to communicate the truth, and upon whose statement the owner had a right to rely and act, would be protected against a sale growing out of the officer’s default. The officer in that case was acting within the line of his bounden duty, and his act was that of the State. The State was bound accordingly, and a subsequent refusal to issue a deed upon discovery of the situation was sustained. "We think the distinction is plain.

The decree of the circuit court is affirmed.

The other Justices concurred.


text:
    CITY OF SAGINAW v. SWIFT ELECTRIC LIGHT CO.
    1. Municipal Corporations — Electric Light Companies — Inspection op Poles.
    A city ordinance providing for a reasonable inspection of all poles used by an electric light company within the city, to ascertain whether the same are secure, and making the cost of such inspection a charge against the company, is valid, where the statute under which the company was organized gives to the municipal authorities the right to prescribe “reasonable regulations” for the conduct of its business.
    3. Same — Ordinances—Unreasonable Provisions.
    But a charge of 50 cents per annum for each pole so inspected, when the actual cost of inspection is about five cents only, is unreasonable.
    3. Same — Grant oe Powers — Right to Amend.
    A city cannot justify the imposition of unreasonable burdens upon an electric light company, to which it has granted by-ordinance the right to erect its poles in the streets upon conditions stated, under the power reserved to it in a subsequent ordinance relating to such company to amend, alter, or repeal the latter ordinance.
    Error to Saginaw; Wilber, J.
    Submitted June 6,1897.
    Decided July 13, 1897.

      Assumpsit by the city of Saginaw against the Swift Electric Light Company to recover an amount alleged to be due under an ordinance providing for an inspection by the city of the poles maintained by the defendant. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Hcmchett & Uanchett, for appellant.

      JE. L. Beach, for appellee.
   Hooker, J.

The defendant is an electric light company organized under the general statute (1 How. Stat.chap. 127), which gives it the right to do business under “such reasonable regulations as the municipal authorities may prescribe.” On May 9, 1881, the common council gave this company authority to erect poles for carrying its wires, under the supervision of the street committee. On May 6, 1889, the council passed “An ordinance to regulate the putting up, taking down, maintaining, and repairing telegraph, telephone, and electric light poles and wires.” Section 2 of the ordinance is as follows:

“The city shall have the right to use the upper 20 inches of all poles hereafter put up, to support its fire-alarm telegraph wires; and it may, when necessary, put alarm boxes upon them, and connect said wires therewith. ”

August 5, 1895, the council passed a general ordinance entitled “An ordinance to regulate the placing and putting up and taking down of electrical wires and cables, and the placing of conduits therefor, in the streets, alleys, and public spaces of the city of Saginaw.” Section 19 of this ordinance reads as follows:

“The city of Saginaw shall cause all poles used and maintained and occupied by any person, company, or corporation for stringing or sustaining his or its electrical wires or cables in said city to be inspected once each year, to ascertain whether the same are secure, and maintained in accordance with this ordinance of said city; and such person, company, or corporation shall pay to said city for such inspection the sum of 50 cents per annum for each pole so maintained by him or it.”

. It appears from the agreed statement of facts that in pursuance of this section all the poles on the east side of the city of Saginaw were inspected by a man employed under the direction of the common council and the board of public works; that he inspected in all 3,072 poles, of which he found that 1,045 belonged to thé defendant. He spent 66-¿- days doing this work, and received $2.25 a day for his wages. The total amount, then, that he received for his work, was $149.62. This would make the cost about five cents for each pole, so that the actual cost of inspecting the defendant’s poles would be $52.25. It appeared further that the defendant has inspected its 1,015 poles in three days, and that two men go over the entire line every day, and inspect the poles and trim the lamps. There are lamp's on 158 of the poles. The men who do this work are paid $55 a month, and it is a part of their work to inspect the poles and the lines each day. It appeared further that since the passage of the ordinance of May 6, 1889, the defendant has erected and maintained 150 new poles, and that since that date the city has used the top 30 inches of a number of these poles in accordance with the provisions of section 3 of that ordinance. This same provision was re-enacted in the ordinance of 1895, in section 3, appropriating 31 inches, instead of 30 inches, to the city. It appeared also that each year since the year 1890 the defendant has been assessed in the sum of $15,000 upon its real estate and the sum of $10,000 on its personal property, which includes the poles and wires of the company, and the company has paid these taxes each year to the city.

Two points are made in opposition to the judgment of the circuit court, both attacking the, validity of the ordinance: (1) That the amount fixed for the inspection is unreasonable; (3) that the council has imposed a tax under the guise of providing for inspection.

When the public safety requires it, the legislature has power to impose burdens to secure immunity from danger, under the general police power, and it is customary to delegate the power in proper cases to municipal corporations. Prent. Police Powers, 11. In this case the statute expressly confides to the city the power to regulate the construction and maintenance of wires, etc. There is manifest propriety in this. If, as contended by counsel, it were clear that this provision was not designed to secure the safety and protect the public against dangers, or if it were clear that it was an attempt to raise revenue under a pretense, we should not hesitate to hold the ordinance invalid. The ordinance provides for nothing but an inspection of poles once a year to ascertain whether the same are secure, and maintained in accordance with the ordinance. While we think that it is proper for the city to make a reasonable inspection, and we are not prepared to say that this is not a reasonable one, there is no occasion for requiring the electric company to pay more than a sum sufficient to pay the reasonable cost of such inspection. The pole is in plain sight, may be easily ascended, if necessary, and an examination as to soundness below the surface cannot be difficult or expensive. We may take judicial notice of these things. In addition, the evidence shows that this inspection was actually made for $149.62, — about five cents per pole. We are of the opinion that the price fixed by the ordinance is unreasonable, providing as it does for .a charge of ovér $1,500 for protection which actually is secured for one-tenth the sum, and which it is obvious may always be secured, so far as this ordinance undertakes to secure it, for much less than the rate fixed.

It is hinted that this ordinance is valid under the power reserved by the ordinance of May 6, 1889, viz., “The right to amend, alter, or repeal this ordinance is hereby expressly reserved.” If by this counsel means to claim that there are no restrictions upon the power of the council to impose burdens upon this company, which, under its statutory authority, it has permitted to erect its plant and engage in its business, we cannot agree with him. The company has a right to exist and do business by virtue of the statute. It depends upon the city only for its right to lay, construct, and maintain its conduits for electricity through the streets, etc. This consent was given by the resolution of May 9, 1881, the only qualification being that the poles should be erected under the supervision of the street committee. On May 6,1889, the council passed an ordinance regulating the setting of poles, and it is this ordinance which contains the reservation of power to amend, alter, or repeal. We do not feel called upon to discuss the question whether a power reserved in an original grant to alter, amend, or repeal makes valid any and all burdens that may líe imposed upon the company or person accepting such grant, because no such power was reserved in this original grant. The consent contemplated by the statute was given, and the defendant had a right to erect its poles and carry on its business, subject to the right of the city under the statute to prescribe reasonable regulations. As already stated, we consider this an unreasonable one.

The judgment is reversed, with costs of both courts. No new trial is ordered.

The other Justices concurred.


author: Montgomery, J.

text:
    CARR v. BRICK.
    Lou Liens — Trespassers—Res Judicata.
    While a mere trespasser is entitled to no lien upon logs for labor and expenses as against the owner, the latter cannot, in replevin for-the logs, deny upon that ground the validity of a lien established in proceedings under 3 How. Stat. § 8427e et seq., wherein he was served, appeared, and defended the action.
    Error to Alpena; Kelley, J.
    Submitted June 16, 1897.
    Decided July 13, 1897.
    Replevin by James O. Carr against William Brick. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      J. D. Turnbull, for appellant.

      Dafoe & Dustin, for appellee.
   Montgomery, J.

This is an action of replevin, brought by plaintiff in justice’s court for the possession of 25,000 feet of hemlock and basSwood logs. The case was appealed to the circuit court, where a judgment was directed for the defendant for the value of the logs. The defense interposed was that the defendant purchased the logs at a sale made upon an execution issuing from justice’s court in a lien proceeding, brought under section 8427e, 8 How. Stat. The evidence shows that the defendant in this case asserted such a lien, that the writ was served upon the present plaintiff as owner of the logs, and that he appeared before the'justice, and defended the action. Section 8427/, 3 How. Stat., provides that, if the defendant in said attachment is not the owner of the property described in the writ, the officer shall serve, on or before the return day, a copy of the attachment upon the owner, and section 8427m provides that the owner may appear and defend the action the same as if made a party originally. When these proceedings were offered in evidence, objection was made by plaintiff’s attorney, but it was stated, in response to the court’s questions, that there was no objection to any of the lien proceedings, except that they were irrelevant and incompetent, from the fact that the timber was cut by a trespasser, and that the lien claim was being enforced against the logs by a trespasser; and that there was no claim of any informality in the preliminaries, or in the form of the judgment, execution, etc. *

Plaintiff’s contention in the lower court and in this court is that a trespasser cannot acquire a lien for his work in cutting timber, and that therefore the justice had no jurisdiction to render a judgment fixing a lien upon these logs.

The first proposition may be readily conceded; but the jurisdiction of the justice of the peace was fixed by the affidavit, writ, and service had in the case pending before him. The very question that was tried before the justice of the peace in the first case was whether or not these logs were subject to a lien in favor of the claimant. Not only did the present plaintiff have the opportunity to try that question, but he actually did take part in the trial, and the determination was against him. An erroneous judgment is not necessarily a judgment rendered without jurisdiction. The first judgment was conclusive of the rights of the parties. See note to Duchess of Kingston’s Case, 2 Smith, Lead. Cas. 784, 808; Jacobson v. Miller, 41 Mich. 90; Barker v. Cleveland, 19 Mich. 230.

Counsel relies upon Pine Saw Logs v. Sias, 43 Mich. 358; but in that case it did not appear that the real owner of the property was before the court. The court say: “There was no determination that Brown was the owner. The fact that he appeared as owner would not be conclusive upon that question.” Furthermore, that case was a direct proceeding to review the decision of the trial court, determining that there was a lien upon the logs.

Counsel also cites authorities to establish the proposition that a trespasser, however innocent, can acquire no lien upon logs for labor and expenses as against the owner. There would be no hesitancy in accepting this proposition as correct if the question were open upon this record; but, as we have seen, the precise question tried before the justice in the first case was whether a lien existed upon the logs. That was determined, and determined for all time.

Judgment is affirmed.

The other Justices concurred.


author: Grant, J.

text:
      In re BEECHER’S ESTATE.
    ■Estates of Decedents — Vested Rights — Statutes.
    B. died intestate, being possessed of personal property of great value. His wife survived him one year, and upon her death left her share of the estate to be divided among several legatees. A contest over the will was compromised, the will being set aside, and the manner of distribution of the estate agreed upon. B., 21 years before his death, had taken a lease of certain real estate for 100 years. The lessor’s estate agreed, after various negotiations, to sell their rights under the lease and the fee of the land for a lump sum. The probate judge, upon application of the administrator of B.’s estate, authorized the purchase, claiming power to enter the order under Act No. 11, Pub. Acts 1897, which provides that, in case any continuing claim shall be made against the estate of a deceased person for rent under a lease, the administrator may, by and with the consent of the probate judge, compromise the claim, and may, in effecting the compromise, if necessary and if so ordered by the judge of probate, purchase the real estate covered by the lease, in which case the property so purchased shall be disposed of and distributed as personalty. Held, that the enactment and application of the statute did not deprive the heirs of the wife of B. of rights vested under their agreement, even though the agreement contemplated a conversion into money of all personal property belonging to the estate.
    Error to .Wayne; Frazer, J.
    Submitted June 17,1897.
    Decided July 13, 1897.
    George L. Beecher and Luther S. Trowbridge, administrators of the estate of Luther Beecher, deceased, petitioned the probate court for leave to compromise a claim interposed against the estate for rent under a lease, by purchasing the premises déscribed therein. The petition was granted by the probate court, and John Atkinson, administrator of the estate of Mary W. Beecher, deceased, and Charles H. Wilkins and others, legatees of said Mary W. Beecher, appealed to the circuit court. From a judgment for petitioners, the administrator and legatees bring error.
    Affirmed.
    The following is a concise statement of the case, made by the administrators of the estate of Luther Beecher:
    “Luther Beecher, in his lifetime, obtained from the estate of Eliza F. Biddle a lease of the Biddle House hotel property in Detroit, running for 100 years from July 1, 1871, with a provision for an extension for 100 years more, at the lessor’s option. The lease fixed the exact rental for the first 10 years. For each succeeding period of 10 years the rental was to be determined as follows: The value of the building was estimated to be $100,000, and Mr. Beecher agreed to pay 5 per cent, of this sum, annually, to wit, $5,000, and also to pay 5 per cent, upon the appraised value of the land, as well as all taxes, insurance premiums, etc. For the current period of 10 years, the land was appraised at $100,000. The current rental, therefore, amounts to $10,000, and taxes, etc. Mr. Beecher also agreed to maintain buildings of the value of at least $100,000, and to carry insurance of that amount. At present the administrators are unable to procure more than $60,000 of insurance. The present expenses for the year, including rent, are about $16,000. There is no income from the property at the present time, and it is unlikely to be rented. The claim of the Biddle estate upon the lease was allowed by the commissioners on claims as a continuing liability, and is an existing incumbrance. The real estate of the Luther Beecher estate is subject to the lien of this claim, and a large part of the personal estate must be retained to meet the exigencies of the lease. The lease is a very serious obstacle to the final distribution of the estate. There have been various negotiations towards a settlement, which have eventuated into a proposition from the Biddle estate to sell their claim and the fee of the land for $250,000. The administrators, believing it wise, petitioned the probate court for leave to compromise on this basis. Their petition was granted, and the probate order was affirmed in the circuit court. Mr. Luther Beecher died in September, 1892, intestate, leaving about $300,000 of real estate and about $1,400,000 of personal estate. . His heirs were his only child, George L. Beecher, born of his first wife, and his widow, Mary W. Beecher. The real estate descended entirely to his son; the personal estate went in equal shares to the son and the widow. In the spring of 1893 she died, leaving a will, under which, as it was modified by the circuit court, her. estate passed in varying sums to her own relations, 23 in number. John Atkinson is the administrator of her estate, and as such takes no decided stand upon the issue, as two-fifths of the distributees of her estate desire an affirmance, and three-fifths oppose it. His own personal view is in favor of it. As Mr. George L. Beecher desires the compromise, there are about seven-tenths in favor of it.”
    The statute under which the court proceeded was passed and went into effect February 11, 1897. It was an amendment to section 5932, 3 How. Stat. The section, so amended, reads as follows, the amendment being printed in italics:
    “If any person shall be liable as security for the deceased, or have any other claim against his estate which cannot be proved as a debt before the commissioners or allowed by them, the same may be presented, with the proper proof, to the probate court or to the commissioners, who shall state the same in their report, if such claim shall be presented to them; and in case such claim shall be made against such estate by reason of any bond or agreement of any kind in writing, signed by the deceased, and binding him to pay any certain sum or sums for the support of the claimant for the lifetime of such claimant (or for a term of years), or to perform certain work for another, for the nonperformance of lohich his estate is liable, or binding deceased to pay any sums as rental during a lease, the administrator of said estate, by and with the consent of such claimant and the approval of the judge of probate, may compromise and settle such claim in such manner as shall be just and shall be determined by said judge of probate or probate court, and the same so determined shall be paid as other debts of said deceased; and the administrator, in effecting such compromise, is empowered, if necessary and if so ordered by the judge of probate, after such notice as he shall direct, to purchase the real estate covered by the lease, and, in case of the purchase of real estate as above provided, the same shall be treated as personal property in the hands of the executor or administrator,-
      and disposed of and distributed as such. This act is ordered to take immediate effect.” Act No. 11, Pub. Acts 1897.
    The circuit court found that the probate court had the power to make the order under the act of February 11, 1897, and also under the law as it existed before the passage of that act.

      Henry A. Haigh, for appellant John Atkinson.

      De Forest Paine, for appellants Charles H. Wilkins and others.

      Edwin F. Oonely and Orla B. Taylor, for appellees Mary G-. Wilkins and others.

      Gray & Gray, for appellees administrators of Luther Beecher’s estate.
   Grant, J.

(after stating the facts). Three large estates are interested in this proceeding, and, unless the administrators are empowered to make a settlement under the order of the court, the estates • must be kept open, at great expense, and probable loss, to the two Beecher estates, for an indefinite period. Two of the estates assent to the order. The administrator of Mrs. Beecher’s estate assents so far as he can do so, and two-fifths of those interested in her estate have also assented. A contest was made over the will of Mrs. Beecher, which was finally compromised by all the legatees, her will set aside, and the estate agreed to be distributed under a judgment of the circuit court made by consent. This agreement, as embodied in the judgment, evidently contemplated a conversion of all the personal property into money, and a distribution thereof to the various parties interested. It is apparent, not only from the facts themselves as shown in the record, but also from the testimony of disinterested and experienced witnesses, that the order is for the best interests of all concerned.

The question presented is one simply of power. The learned counsel for the appellants contend that the rights of those interested in Mrs. Beecher’s estate have become vested, that there was no power under the former law to make the order, and that the act under which it was made, if applied to this case, is retroactive. The law is not in dispute, and is correctly stated by counsel for appellants, as found in Todd v. Boards of Election Com'rs, 104 Mich. 478, and the many other authorities cited by them. The only difficulty is to be found in the application of the law. Undoubtedly, the appellants and the other parties interested in Mrs. Beecher’s estate are entitled to have it distributed in accordance with the terms of their agreement. In this respect they technically may be said to.,have vested rights. Their right to possession or enjoyment is not vested, and may never be. The estate may be kept open, and several hundred thousand dollars’ worth of property kept in the hands of the administrators at large expense for 74 years, — beyond the life of any of those interested. The statute authorizes a compromise of such claims, and the purchase of the real estate by the administrator, whenever the probate court shall find it fpr the best interests of all concerned to do so. The real estate so purchased is to be considered as personalty, and must be distributed as other personal property. The statute simply provides a remedy to meet such a state of affairs. It applies to an existing condition, and does not overturn or conflict with vested rights. It provides for a compromise and settlement of contingent claims against an estate, and in doing so authorizes the court to sanction a purchase of the leased land. It is simply changing some of the property in the hands of the administrators into other property, when such change shall be determined to be for the best interests of ail parties. We think the amended act is applicable to this case, and that the court possessed the power to make the order. It is unnecessary to determine whether the power existed under the former statute.

The judgment is affirmed. Under the circumstances, we think no costs should he allowed.

The other Justices concurred.


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    De GRAW v. EMORY.
    Trial — Witnesses—Cross-Examination op Parties.
    One of two plaintiffs in replevin may be cross-examined as to his own understanding, and his co-plaintiff’s admissions, concerning a material fact in the case.
    Error to Grand Traverse; Corbett, J.
    Submitted June 17, 1897.
    Decided July 13, 1897.
    Replevin by George Archie De Graw and another against John U. Emory. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      Turner & Gates, for appellant's.

      Patchin & Loranger, for appellee.
   Hooker, J.

On May 4, 1892, L. 3C. Cleveland sold a portable sawmill to the plaintiffs for $1,500, for which he received five notes, of $300 each, conditioned that the title to said mill and machinery should not pass until these notes should be fully paid. He also took a chattel mortgage upon the property, in which, by mistake, his wife, Lottie A. Cleveland, was named as mortgagee. On May 4,1894, there being then nearly $600 of the purchase price due and unpaid, with interest from the date of sale, Cleveland took possession of the property; and on September 22d it was sold upon notice of foreclosure, Mr. Cleveland bidding it in for $550. From that time until January 1, 1896, Mr. Cleveland had possession of the property, when he traded a portion of it to Frank Beardsley, and at the same time gave him the chattel mortgage and notes, informing him that $550 should be indorsed. Subsequently Mary E. Emory bought a portion of the property, and later her husband, the defendant, bought a portion of the property from Beardsley. Emory took all of the property so purchased by himself and wife to Old Mission, where he used it for sawmill purposes until the plaintiffs replevied it in this action. In January, 1896, the plaintiffs purchased from Beardsley, for $50, the outstanding notes, which, with the sum of $25 paid Cleveland, is all that they paid upon the purchase price of the mill, so far as we have been able to ascertain from the record. The court directed a verdict for the defendant, and, from an examination of the testimony, we think he was warranted in doing so.

Several assignments of error relate to rulings upon the introduction of testimony, but they require no discussion, as there is no legal question of importance involved. One of them will be noticed, as counsel seem-to specially desire it. One of the plaintiffs admitted upon cross-examination that a part of the property had been removed before Mr. Cleveland took the mill into his possession. His testimony indicated that he had the articles in his own possession at one time, though at the time of the trial he said that he did not know where they were, and had not seen them for some time.

“Q. But they were taken away from there?
“A. I was told so; yes, sir.
“Q. Who told you? (Objection; incompetent. Objection overruled. Exception.)
“A. My brother told me he had them.”

Again, the following occurred:

Q. As a matter of fact, you had given up possession of that mill after the sale, had you not ?
“A. No, sir.
“Q. You hadn’t?
“A. No, sir.
11Q. Then explain to the jury how you came to take that machinery away from there.
“A. Because we saw a notice that it was going to be sold. I didn’t want to lose everything.
“Q. Then you considered you had lost the mill, did you, after that sale ?
“A. We considered we were liable to lose it. (Question repeated.)
“i. No, sir.
“Q, What did you consider ?
“A. We considered we would have to try it and see.
“Mr. Turner: We object to what he considered; immaterial.
Court: Well, he has answered it. I will not rule it out.
“Mr. Turner: We don’t care to have it ruled out.
“Q. When did you first consider you had any interest in the mill after this sale under the chattel mortgage ?
“Mr. Turner: We object as immaterial what he considered.
Court: You may answer.
“Mr. Turner: Note an exception.
“A. Why, I never considered that I hadn’t any interest in it.”

Counsel say in relation to this ruling:

“It was clearly inadmissible to allow witness, against the objection and exception of plaintiffs’ counsel, to testify what somebody told him, and also what he considered. We do not know of any rule of law that will allow a witness, against objection, to testify about what he considered in his own mind, as no one could possibly refute such speculation by competent testimony. This was certainly error, and would not be allowed in any court. We would like to have the court, if this is. not error, show us the difference between the court’s allowing witness to testify as to what he considered and what he thought, contained in the above assignments of error, and the case of Lemon v. Railway Co., 59 Mich. 623. Plaintiff’s counsel was permitted to ask the plaintiff this question: ‘Q. Now, Mr. Lemon, you may state to the jury whether, if those cattle-guards had been there on the track, — cattle passes fixed, — whether those sheep would have got down to where they were killed.’ The court held in that case that the question was clearly improper, the fact inquired after was entirely problematical, and the question called for a conclusion of the witness upon facts concerning which it was the province of the jury, and not the witness, to draw all proper and necessary inferences.”

The distinction is to us obvious, and it is the difference between allowing the plaintiff, upon questions by his own attorney, to answer a problematical question, and, to an extent, be the judge of fact in his own case, which the jury alone should be, and permitting opposing counsel to draw from a party his own understanding, and his brother’s and co-plaintiff’s admissions, concerning a fact in the case.

The judgment is affirmed.

The other Justices concurred.


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    MURFIN v. DETROIT & ERIN PLANK-ROAD CO.
    Toll Roads — Bicycles—Construction oe Statute.
    A plank-road company incorporated under the general act of 1848 (1 -How. Stat. chap. 96), and having the right, under section 17 of the act (1 How. Stat. § 3582), to exact tolls from persons traveling on the road in a specified sum “for every vehicle, sled, sleigh, or carriage drawn by animals,’’has no authority to require toll of a bicyclist.
    Error to Wayne; Steere, J., presiding.
    Submitted June 17, 1897.
    Decided July 13, 1897.
    Case by James O. Murfin against the Detroit & Erin Plank-Road Company for preventing plaintiff from riding a bicycle upon defendant’s road without the payment of toll. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Gray & Gray (Charles M. Swift, of counsel), for appellant.
    Griffin, Clark & Russell, for appellee.
   Hooker, J.

This is an action brought against a toll-road company for stopping the plaintiff at defendant’s toll-gate, and preventing him from proceeding to ride a bicycle upon its road without the payment of toll. The case was tried before the court without a jury, and judgment was rendered in favor of the plaintiff.

The only question submitted is that of the right of the defendant to charge toll for the use of its road by persons riding bicycles. The rights of the defendant are statutory, and its right to charge toll is to be determined by section 3582, 1 How. Stat., viz.:

“Whenever any such company shall have completed their road, or any five consecutive miles thereof, the directors thereof may erect toll-gates, and exact tolls from persons traveling on their road, for so much as may be completed, at a rate not exceeding two cents per mile for any vehicle or carriage drawn by two animals, and one cent per mile for every sled or sleigh so drawn, and, if drawn by more than two animals, three-quarters of a cent per mile for every additional animal; for every vehicle, sled, sleigh, or carriage drawn by one animal, one cent a mile; for every score of sheep or swine, half a cent a mile; for every score of neat cattle, two cents a mile; and for every horse and rider, or led horse, one cent a mile. Such toll-gates so to be erected by such company may be as many in number, and located at such points, as such company may deem necessary.”

If we could construe this statute as giving a right to collect tolls from all persons who travel the road, there would be little difficulty in holding that bicycles (which we held to be vehicles in Myers v. Hinds, 110 Mich. 300) are subject to toll, for we may take judicial notice that a good highway is as essential to their use as to that of any other vehicle. There is nothing in this act that gives the right to charge toll against pedestrians, and we have never heard it claimed that such charges were made. Nor have we known of toll being chai’ged for wheelbarrows, or carts, or hand sleds, or baby carriages propelled by human agency, though a good road is as essential to these as to bicycles. If this question arose with reference to .a four-wheeled vehicle propelled by steam or electricity, there would probably be little doubt of the right to charge and collect toll. It would seem to be covered by the case of Detroit, etc., Plank-Road Co. v. Detroit Suburban R. Co., 103 Mich. 585, where it was held that the rights acquired under this act forbid the use of the highway for purposes inconsistent with the rights and franchises of the plank-road company. The use of two wheels instead of four, if propelled by a motor, as they are liable any day to be, would hardly suffice to distinguish them from the heavier and more cumbersome vehicle; and we hesitate to say that the courts could with propriety hold that a motor cycle could escape tolls under this statute, notwithstanding the fact that only vehicles drawn by animals are mentioned in the act.

We think, however, that a distinction may be made between vehicles propelled by man and those depending upon animal power or mechanical motors for propulsion, and that this would not do violence to the act, which has always been construed to permit the use of highways by persons who did not depend upon some means of conveyance besides their own powers of locomotion. The bicycle of today is propelled and managed by the feet and hands of the rider. It uses the traveled roadway ■only when it is the better part of the highway, and the pedestrian does the same. The projected electric railroad involved in the case of Detroit, etc., Plank-Road Co. v. Detroit Suburban R. Co., supra, was not expected to use the roadway constructed by the plank-road company, but one to be built for its exclusive use, and one adapted to no other kind of vehicle. It seems reasonable to say, therefore, that the case cannot be allowed to turn simply on the question whether the defendant’s roadway is likely to be used by the bicycle, as that is not the controlling factor in the case of the electric road, which is forbidden, or the pedestrian, who is not forbidden, to travel any part of the road without paying toll. The bicycle is not subject to the payment of toll by the strict letter of the act. Neither is the motor cycle. Yet we incline to the opinion that payment of toll by the driver of the latter is within the spirit, while such payment by the user of the former is not, because of the apparent intention to confine the payment of toll to those who do not depend upon their own powers of locomotion for the propulsion- of the vehicle used. This view seems to receive significant support in the fact that we find few cases where the question has arisen. The bicycle has been used as a road machine for a quarter of a century, and we cannot conceive of the users submitting to a general practice of charging toll without protest that would have led to an 'adjudication of the question. Furthermore, we have never heard that it was the practice of the companies, to charge toll, and we have reason to believe that this company is no exception, but that the cause is here to ascertain whether the company may safely provide exceptional facilities for wheelmen, with the expectation of collecting toll.

But two cases where similar questions have arisen are cited by counsel. In Geiger v. Turnpike Road, 167 Pa. St. 582, a bicycle was held subject to toll, as a two-wheeled carriage, under a statute which gave the right to collect toll from—

“All and every person and persons using the said road, * * * and to stop any person driving any * * * sulky, chair, chaise, phaeton, cart, wagon, sleigh, sled, or other carriage of burthen or pleasure, * * * and for every other carriage of pleasure, under whatever name it may go, the like sums, according to the number of wheels and horses drawing the same.” Act March 25, 1805, § 11.

The court held that this was a “carriage of burthen or pleasure ; ” and what is more significant, from the standpoint from which we view the case, is the view taken of the word “horses,” as used in the statute. It is said that “the method of computation by wheels and horses is not the power to collect toll, which is expressly given. That is a mere limitation on the power. The demand must not exceed the sum specified for the animals and vehicles enumerated.” This reasoning is at variance with our view, and it seems to us that it is at variance with immunity from tolls on the part of the pedestrian, who, as said of the bicyclist in that case, “has the same right as owners of carriages to insist that the highway shall be maintained in a reasonably safe condition of repair.” A Pennsylvania statute is cited giving the bicyclist the right to use the highway, the same as any other vehicle, but we think it was declaratory of the common law merely; and, if it were not, it could hardly be held to affect the rights of a turnpike company under a charter granted half a century before practical bicycles were invented.

This question arose in England under a statute which gave the right to collect tolls as follows:

“For every horse, mule, or other beast drawing any coach, sociable, chariot, berlin, landau, vis-a-vis, barouche, phaeton, curricle, calash, chaise, chair, gig, whiskey, caravan, hearse, litter, or other such carriage, the sum of 6d.; for every horse, mule, or ass, laden or unladen, and not drawing, the sum of 2d.; and for every carriage of whatever description, and for whatever purpose, which should be drawn or impelled, or set or kept in motion, by steam, or any other power or agency than being drawn by any horse or horses, or other beast or beasts of draught, any sum not exceeding 5s.” 3 Wm. IV. chap. 55; Williams v. Ellis, 5 Q. B. Div. 175.

In a short opinion, the court held that a bicycle is not a carriage, within the meaning of the turnpike act; that carriages there referred to must be carriages ejusdem generis with the carriages previously specified, which, as the act imports, were carriages propelled otherwise than by human" agency. We should hesitate to say that the right to charge tolls was limited to conveyances ejusdem generis with those drawn by animals, which alone seem to be mentioned in our act. Indeed, the case cited from 103 Mich, may be plausibly said to have settled that question ; but we see no reason for refusing to apply the doctrine to the broader class of vehicles propelled by animals or some mechanical motor. It seems to us that this distinction will protect the plank-road companies from a use of their road by substitutes for those vehicles which the law contemplated should be charged for, and at the same time protect the pedestrian in his increased power of locomotion by the aid of the wheel.

This view accords with that of the learned circuit judge who tried the cause, and his judgment is affirmed.

Moore, J., concurred with Hooker, J. Long, C. J., Grant and Montgomery, JJ., concurred in the result.


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    STEVENS v. YALE.
    1. Damages — Breach of Contract — Loss of Profits.
    The damages for the breach of an agreement to advertise certain remedies over the name of a druggist, who gives an order for such remedies, are too speculative to permit of a recovery.
    2. Same — Judgment—Harmless Error.
    A judgment for defendant in an action wherein a judgment for plaintiff for nominal damages would not have carried costs will not be reversed for failure to award such damages.
    Error to Wayne; Frazer, J.
    Submitted June 17,1897.
    Decided July 13, 1897.

      Assumpsit by Fred D. Stevens and Frederick J. Todd, copartners, against Madame M. Yale, for the breach of a contract to advertise defendant’s remedies as on sale at plaintiffs’ store. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      Lehman Bros, and F. J. Biggs, fox- appellants.

      Dickinson & Thurber and Benjamin S. Warren, for appellee.
   Hooker, J.

On February 5, 1894, the defendant, through her business manager, executed and delivered to the plaintiffs a writing, of which the following is a copy:

“Detroit, Mich., February 5, 1894.
“I hereby agree, in consideration of receiving an order on my line of preparations from Messrs. Stevens & Todd, to add their names at bottom of all my advertisements in Detroit papers, stating a full line of my remedies can be had from them at both their stores, providing they continue to carry my full line in stock, and furthermore agree at any time to exchange for them any of my remedies which they find unsalable. The first order to amount to not less than $150.
“Madame M. Yale.
“W. B. Wilson, Bus. Mngr.”

The ox-al evidence showed that the plaintiffs were druggists, and the “x-emedies purchased were beautifiers fox-women,” etc., upon which there was a profit of 50 per cent.; that, at the time of the execution and delivery of the writing, they gave an order for goods to the amount of $162.70, and had sold them since; that for a period of eight months, or thex-eabouts, their names appeared at the bottom of defendant’s advertisements in Detroit newspapers, but, about eight months after the writing was made, she appointed Messrs. Williams, Davis, Brooks & Co. her wholesale agents at Detroit, and their names only appeared in the advertisements thereafter. After that time, at the request of the defendant, plaintiffs purchased from the wholesale agents in Detroit, finding it more convenient to do so. This actioxx is brought to recover damages for defendant’s failure to advex-tise ovexthe plaintiffs’ names. The judge directed a verdict for the defendant, holding — First, that there was a want of mutuality in the contract; and, second, that all damages attempted to be shown were speculative.

We need not discuss the question of the validity of this contract. If it be treated as valid, and it be admitted that there was a breach of the contract by the defendant,the damages' sought to be recovered were speculative. The injury suffered, if any, was a loss of such profits as-would have resulted from advértising, — a matter of mere conjecture, depending upon the number who might read and act upon the advertisement. Petrie v. Lane, 58 Mich. 527; Fitzsimmons v. Chapman, 37 Mich. 139 (26 Am. Rep. 508); McKinnon v. McEwan, 48 Mich. 106 (42 Am. Rep. 458); Allis v. McLean, 48 Mich. 428; John Hutchinson Manfg. Co. v. Pinch, 91 Mich. 156; Davis v. Davis, 84 Mich. 324. We have held in several cases' that loss of profits may be recovered where the loss of profits and their amount can be shown with certainty. But here the effect of this failure to advertise is most uncertain, and the circuit court was correct in holding that such damages were not recoverable.

Counsel for the plaintiffs urge that a new trial should be granted because the plaintiffs were entitled to nominal damages. This action was commenced in circuit court, and, under the statute, the plaintiffs would not be entitled to costs upon a judgment for nominal damages, and the judgment should not be reversed upon this ground. Hickey v. Baird, 9 Mich. 38; Haven v. Manufacturing Co., 40 Mich. 290.

The judgment is affirmed.

The other Justices concurred.