author: McAlvay, J.

text:
    CITY OF MONROE v. DETROIT, MONROE & TOLEDO SHORT LINE RAILWAY.
    1. Street Railroads — Train Railway — Use op Streets — Ordinances.
    The grant by a city to a company, organized under the train railway act (§ 6394 et seq., 2 Comp. Laws), of the right to construct and operate a street railway with all necessary tracks and connections, all tracks to be constructed under the supervision and with the approval of the common council, does not authorize the company to make a connection in ■ the streets of the city with the tracks of a company organized and operating under the general railroad law, and having no franchise from the city, though in the ordinances granting franchises to such train railway company, and to another company organized under the general railroad law, a connection between them, and transfers from one to the other, were required.
    2. Same — Powers op Municipality.
    The right of a municipality to refuse its consent to the use of its streets by a street railway is an absolute one, and its power in the first instance to impose conditions is unlimited.
    3. Same — Train Railways — Connections with Other Railroads — Use op Streets.
    Section 41 of the train railway act (6432, 2 Comp. Laws), authorizing railways organized under that act to make connections with other railroads, does not take from a municipality its right to supervise and control its public streets, and gives such a company, operating as a street railroad, no right to make a connection with another railroad in a city street without consent of the city authorities.
    4. Same — Operation by General Railroad Company.
    Whether a general railroad can own or operate a street railroad under the laws of this State is a serious question.
    5. Same — Ordinanoe—Electric Wires — Use op Street.
    Where the ordinance, under which an electric street railroad is operating, provides that “ no wires carrying an electric current shall be placed in said street except the trolley wire,” and the company, in the night-time, places an additional feed wire in the street, not a trolley wire, a decree enjoining it from maintaining the wire is proper.
    Cross-appeals from Monroe; Kinne, J., presiding.
    Submitted February 15, 1905.
    (Docket No. 151.)
    Decided March 13, 1906.
    Bill by the city of Monroe against the Detroit, Monroe & Toledo Short Line Railway, the Toledo & Monroe Railway, and the Monroe Traction Company, to enjoin the defendants’ use of a certain street. From the decree rendered, all parties appeal.
    Affirmed.

      Willis Baldwin, E. JR. Q-ilday, and J. J. Kiley, for complainant.

      Charles A. Golden and John C. Donnelly, for defendants.
   McAlvay, J.

The defendant Monroe Traction Company, organized under chapter 167, 2 Comp. Laws (§ 6394 et seq.), operated a street railway on Elm avenue in the city of Monroe. The other defendants are organized under the general railroad laws of the State. The complainant filed its bill of complaint to enjoin the two last-named defendants from using any part of Elm avenue or the line upon said avenue, and from running and operating any cars thereon, and to enjoin all of the defendants from making and constructing any connection, switch, or side track upon Elm avenue. By its supplemental bill, complainant claims that defendant Detroit, Monroe & Toledo Short Line Railway, in the night-time, with the consent of the Monroe Traction Company, had, without authority and contrary to the provisions in the franchise of said last-named company, placed in said Elm avenue an additional feed wire, not a trolley wire, and prays that all of said defendants be enjoined from maintaining such feed wire and be required to remove the same.

The rights under which defendant Monroe Traction Company is operated in the streets of the city of Monroe were granted by ordinance September 22, 1902; whereby said defendant was authorized to construct, maintain, and operate a street railway for the conveyance of passengers and baggage, being a single track with necessary switches upon Elm avenue from Monroe street east to the easterly terminus thereof. All tracks provided for in said ordinance to be constructed under the supervision and subject to the approval of the common council. There was a further provision that “no wires carrying an electric current shall be placed in said street except the trolley wire.”

On October 30, 1902, the Monroe Traction Company leased its line on Elm avenue for a term of 30 years to the defendant Toledo & Monroe Railway, which was assigned with the consent of the traction company to defendant Detroit, Monroe & Toledo Short Line Railway at or about the time these roads all went into the hands of the short line company. Defendant Detroit, Monroe & Toledo Short Line Railway, operated under and by virtue of its authority as a railroad organized under the general railroad laws of the State, has no franchise from the municipality. It has constructed its road upon a private right of way duly acquired by purchase or otherwise. Defendant Toledo & Monroe Railway, also organized under the general railroad laws, has a franchise from the city of Monroe, dated September 25, 1902, authorizing it to construct and operate a street railway upon Monroe street, from the southerly limit of the city to and across the river Raisin to Anderson street (the name of this street north of the river), thence northerly on said street to the north city limits, and also on certain other streets in said city. This road was constructed to the intersection of Anderson street with Elm avenue:

At the time of granting the franchise to the two defendant companies, the Toledo & Monroe Railway and Monroe Traction Company, by the city, both roads had been constructed and connection had been made at the intersection of Elm avenue and Anderson street, under former grants which in terms were identical with the franchises granted to these companies, which required this connection to be made, and transfers for a continuous trip within the city limits to be granted upon the payment of one fare. At that time the Monroe Traction Company’s line was operated by defendant Toledo & Monroe Railway, the power and rolling stock being furnished by said Toledo & Monroe Railway, under some agreement between the parties. These rights were assigned to the Detroit, Monroe & Toledo Short Line Railway as hereinbefore stated. The short line railway, having constructed its road on its private right of way up to Elm avenue about 1,600 feet east of the intersection with Anderson street, desired to make connection with Monroe Traction Company line on Elm avenue. The Monroe Traction Company consented to' this and authorized the work to be done. This case was then commenced upon the theory hereinbefore set forth. The circuit court granted the relief prayed as to the connection with the short line company on Elm avenue, and as to the extra feed wire referred to in the supplemental bill. Both parties have appealed from this decree.

In view of the fact that there is now a suit pending in behalf of the State, brought by the attorney general, in which the questions of the corporate existence of the defendant Monroe Traction Company and its right to exercise its corporate franchise are involved, these questions raised in this case will not be considered. In its objection to making the connection on Elm avenue by the Monroe Traction Company with the short line railway company, complainant contends that no such right was granted in its franchise and no consent on the part of the municipality had been obtained. The grant referred to authorized said traction company—

“To construct, equip, own, maintain and operate a street railway for conveyance of passengers and baggage, with all the necessary and convenient tracks, side tracks, switches, turntables, turnouts,, and connections, * * * subject to the regulations hereinafter contained * * * a single track with necessary switches in, upon and through Elm avenue. * * * All tracks provided for in this ordinance shall be constructed under the supervision and with the approval of the common council.”

We think it would be placing upon this language an unwarranted construction to hold that it authorized the Monroe Traction Company to make a connection in the streets of complainant with the tracks of a corporation organized and operating under the general railroad laws. It is true that a connection was provided for and required to be made with the Toledo & Monroe Company, and transfers for a single fare from one road to the other, in the two franchises granted by the ordinances referred to, indicating that the municipality understood that the "Traction Company was to carry passengers, with their baggage, who were intending to make a through trip to Toledo or Detroit. The route northerly to Detroit referred to was along the line of Anderson street, which was included in the grant to the Toledo & Monroe Railway. The contention that this can be of some avail to the defendants in this case is of no force for the reason that such provisions and requirements were within the express grant to the Toledo & Monroe Company and no grant by the city has been given to the short line railway company.

The train railway act is invoked as authority for making the connection in dispute, and it is urged that the grant from the city did not divest the traction company of its charter rights under said law, but was accepted by th© company with reference to its said rights. This statute, some years after its enactment, was amended for the purpose of allowing corporations organized under it to use and operate street railways; but this right is to be exercised only with the consent of the municipal authorities, upon such terms and conditions as such authorities may prescribe. Section 41 of said act [2 Comp. Laws, § 6432] provides, as claimed by defendants, that companies organized under this act shall have the right to make ' connection with any other railroad corporation, and further provides that when a road is so organized and is intersected by any new road it must unite with such road in making a connection, and grant running and business facilities.

In this case we do not consider it necessary to construe this latter provision, nor to determine whether the short line road would, within the meaning of the statute, be an intersecting road. We need only determine whether the first provision is applicable in this case where the street railway, the traction company organized under this act, is entirely within the limits of the municipality under the terms of a grant accepted by it. The right of a municipality to refuse its consent to the use of its streets by a -street railway is an absolute one, and its power in the first instance to impose conditions is unlimited. City of Detroit v. Railway Co., 95 Mich. 460 (20 L. R. A. 79). The original train railway act did not give any authority to corporations organized under it to construct, own, or operate railways in and through the streets of any city, or to organize for street railway purposes. From time to time sections were added giving such authority. In no case, however, can any railroad be constructed in such streets without the consent of the municipal authorities first obtained, subject to such regulations, terms, and conditions as to construction, location, and operation,’as by them might be imposed. The legislative intent to continue the control of public streets in the municipal authorities is clear. Section 41, which is the last section added to the act, must be construed with reference to the provisions of the preceding sections. To sustain the construction urged by defendants would defeat the legislative intent, and leave the connecting railroads to determine when, where, and how the connection shall be made in the streets of a city.

In this case the right to use the streets of the city of Monroe was subject to the limitations of the grant itself, and no rights not expressly granted were acquired. The limitations were in the original franchise. The control of the streets was not surrendered by the common council. The plain requirements of the grant were that the line of the road and all its appurtenances should,be under the control of the council as to construction, location, etc. The making of this connection sought to be restrained in this suit is admittedly undertaken without the consent of the municipality. Will the fact that the train railway act provides in section 41 for connections to be made with other roads, excuse or justify such action ? We think not, and hold that this section of the act does not take from a municipality its right to supervise and control its public-streets, given to it by the legislature and recognized in the act itself.

It is admitted in briefs and arguments of counsel for defendants that the short line road is in fact the only party in interest, having by lease or otherwise acquired the right to operate the Toledo & Monroe Railway and the Monroe Traction Company. Whether a general railroad can own or operate a street railway under the laws of this State is a serious question. Under the pleadings and facts in this case, and our views above expressed, it is not necessary to pass upon that question at the present time. The record does not disclose that as yet any use of the street railway line has been made by those operating it other than that allowed by its franchise. The only question remaining for consideration is whether placing the extra feed wire in Elm avenue was allowable. The ordinance provides that “no wires carrying an electric current shall be placed in said street except the trolley wire.” The wire objected to, which was placed in Elm avenue in the night-time, was not a trolley wire. It was put in without authority. Under what claim of right this was done is not explained. .

The decree of the circuit court is in all respects affirmed, without costs.

Carpenter, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    MORAN v. MORAN.
    Wills — Construction—Estates Devised.
    A will in terms giving to testator’s wife all his property, “to be hers absolutely,-” gives an absolute estate, notwithstanding the succeeding repugnant provision, “providing, however, that if at her death any of said property be still hers, then the residue still hers shall go to my, not her, nearest heirs.”
    Appeal from Wayne; Hosmer,'J.
    Submitted December 8, 1905.
    (Docket No. 174.)
    Decided March 13, 1906.
    Bill by Richard G. Moran and others against Gilbert M. Moran, executor of the last will and testament of Mary E. A. Moran, deceased, and others, for a construction of the last will and testament of Charles G. Moran, deceased. From a decree for defendants, complainants appeal.
    Affirmed.

      Fred C. Harvey, for complainants.-

      Clark, Jones & Bryant and Orla B. Taylor, for defendants.
   McAlvay, J.

The bill of complaint in this case was filed to obtain a construction of the will of Charles G. Moran. The complainants are the brothers of said Moran.The defendants are the executor of his wife, the beneficiaries and legatees under her will, and a brother and sister of complainants. Charles G. Moran died at Grosse Pointe, Wayne county, Mich., September 29, 1900, leaving a last will and testament. The provisions of this will, omitting the formal parts, are as follows:

“ I give and bequeath to my beloved wife, Mary E. A. Moran, all my property real and personal, of every name, nature and description to be hers absolutely, providing however, that if at her death any of the said property be still hers, then said residue still hers shall go to my, not her, nearest heir or heirs. She is made sole executrix of this will without bonds.”

This will was duly probated. The widow qualified as executrix, rendered her final account August 7, 1901, which was allowed by the probate court. The residue of the estate was assigned to her as “ sole legatee and devisee of said deceased, in accordance with the provisions of said will,” and she was discharged as executrix. The widow, Mary E. A. Moran, died testate, July 28, 1903; her will providing, after the payment of certain bequests, that the residue of her estate should be equally divided between her brothers and sisters. Her executor took possession of all the real and personal estate of which she died possessed, which included the real and personal property devised by the will of her husband. The bill of complaint in this suit was filed November 21, 1903, for the purpose above stated. Upon the hearing of the cause on the bill and answers, the circuit court decreed that, under the will of Charles G. Moran, his wife, Mary E. A. Moran, took—

“ An estate in fee simple with an unlimited power to-convey, and that the proviso therein that if, at her death, any of the said property be still hers, then said residue still hers should go to the nearest heir or heirs of said Charles G. Moran, is repugnant to the clause in the will creating the estate in fee simple aforesaid, and for that reason is void.”

From this decree the complainants have appealed, contending that said will gave the wife a life estate, with remainder to the heirs of Charles G. Moran.

Similar testamentary provisions have frequently been be'fore this court for construction, and have been passed upon. This will differs from those in the other cases in that it does not contain the words “ during her natural life,” or “for her use during her natural life,” or words giving power to sell “for her use and benefit,” or similar expressions familiar to the profession, which have been referred to in the decisions in this State as aids in arriving at the intention of the testator, or in determining whether later words in the instrument indicative of reserving a remainder over are repugnant to an earlier devise. The terms of the instrument under consideration are:

I give and bequeath to my beloved wife, Mary E. A. Moran, all my property real and personal, of every name, nature and description to be hers absolutely.”

This is a plain, clear, and direct gift and devise, without qualification or limitation. It offers no difficulty in arriving at the real intent and meaning of the testator. By it he gave his wife all of this property, and created in her a title in fee simple to the real estate, with unlimited power of conversion and disposition. The words in the will which follow this clause are:

‘ ‘ Providing however, that if at her death any of the said property be still hers, then said residue still hers shall go to my, not her, nearest heir or heirs.”

If by this it was intended to dispose of a remainder over to his heirs, it is certainly repugnant to the former part of the will already construed, and is void, being inconsistent with the absolute estate already devised. Jones v. Jones, 25 Mich. 401, cited and approved in Dills v. La Tour, 136 Mich. 243. The expressions in this later clause indicate to us that he understood that he had given her an absolute estate, and was not creating a gift or devise of what might remain after her decease. He says: “If at her death any of said property be still hers, then said residue still hers shall go to my nearest heirs ” — thereby expressing his wish as to its distribution. The absence from this instrument of certain expressions referred to earlier in this opinion makes the clear intent of the testator easier to be ascertained, and renders less difficult the application of the fundamental rule of construction of testamentary documents that the real intent and meaning of the testator must be given effect, if that intent can be derived from the instrument, and is lawful, and that for this purpose all of the clauses of the will are to be considered, and, if possible, harmonized.

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

Grant, Blair, Hooker, and Moore, JJ., concurred.


author: Grant, J.

text:
    JONES v. BLOOMGARDEN.
    1. Sales — Perishable Property — Rejection —Duty of Purchaser.
    Sections 739, 10360, and 10361 of the Compiled Laws, providing the procedure in case of levy or attachment of perishable goods, have no application to the duty of a buyer of perishable goods, which prove, on arrival, to be defective.
    2. Same — Reshipment.
    In assumpsit for the price of goods sold, it is error to charge that it was the buyer’s duty, if he refused to accept the goods on arrival, to reship them to the seller.
    3. Principal and Agent — Authority — Evidence — Holding Out.
    Holding one’s self out as agent is no evidence of authority as against the principal.
    4. Brokers —Sale of Perishable Goods —Duty on Refusal by Buyer.
    Brokers who have sold perishable goods have no authority, on the arrival of the goods and their proving defective, to make a contoact with the buyer on behalf of the seller to annul the contract of sale and authorize the buyer to sell the goods for the account of the seller.
    5. Sales — Contracts—Time of Shipment — Waiver of Breach.
    By inspecting and accepting goods on their arrival, with knowledge that they were shipped at a later time than agreed in the contract of sale, the breach as to time of shipment is waived.
    6. Same — Inspection—Time.
    A buyer of goods to be shipped is entitled to a reasonable time and opportunity to inspect them before acceptance, the time within which he must act depending upon the circumstances, including the character of the goods; a more prompt inspection being required of perishable property.
    7. Same — Latent Defects.
    An inspection sufficient in law is not conclusive upon the rights of a buyer where there are latent defects afterwards discovered.

      8. Same — Action on Contract — Deeeotive Goods — Recovery on Quantum Meruit.
    Where the buyer of goods, on their arrival, makes prompt inspection, such as is customary and sufficient to determine the character of the goods, and latent defects are afterwards discovered, which existed at the time of shipment, the seller cannot recover upon the contract of sale, but only on a count of quantum meruit.
    8. Same — Perishable Goods — Injury After Shipment.
    If perishable goods, when shipped pursuant to a contract of sale; are such as the contract calls for and are in good condition, the seller is not responsible for damages resulting from any cause after shipment.
    10. Same — Action for Price — Defenses.
    Where a buyer notifies the seller within a reasonable time of the rescission of the contract because the goods are not such as were contracted for, and asks what disposition he shall make of them, and the seller replies, insisting that he has fully performed the contract, the buyer may dispose of the goods at the best price obtainable,.and interpose, when sued, the defense of the seller’s noncompliance with the contract.
    Error to Wayne; Donovan, J.
    Submitted January 11, 1906.
    (Docket No. 56.)
    Decided March 13, 1906.
    Assumpsit by Elmer J. Jones against Abrabam Bloom-garden and William M. Ellenstein,- copartners as Bloom-garden & Ellenstein, for goods sold and delivered. There was judgment for plaintiff for less than the amount claimed, and be brings error.
    Reversed.
    The material facts in this case are as follows: Plaintiff is a commission merchant in Baltimore, Md., dealing in different kinds of produce. Defendants are commission merchants in the city of Detroit. A firm under the name of Floyd E. Bowen & Co. are produce brokers in Detroit. On June 11th, plaintiff telegraphed Bowen & Co.:
    “ Sell three hundred baskets or less. Fine bushel wax. Dollar. Wire quick.”
    Bowen & Co. replied:

      “ Bloomgarden Ellenstein will take car bushel fine wax ninety cents today Empire Line. Ice the car. Answer.”
    Plaintiff replied to Bowen & Co. 3 same date, as follows:
    “ Too late to get car off today. Will accept offer Monday’s shipment. Wire at once.”
    Bowen & Co. replied to plaintiff:
    “ Bloomgarden takes car Monday shipment ninety cents or less if market lower. Empire Line, ice car.”
    On Monday, June 13th, plaintiff wired Bowen & Co.:
    “Today’s arrivals wax very poor, spotted, bád condition; wouldn’t suit your party; thought best hold car over for tomorrow’s shipment.”
    Bowen & Co. made no reply, and on Tuesday, the 14th, plaintiff, assuming that defendants had accepted the change of date, shipped the beans as directed. The car reached Detroit on Friday, the 17th. Defendants were notified of its arrival on the morning of Saturday, the 18th. Defendant Bloomgarden immediately went to the car, opened the door, examined 10 or 15 hampers or baskets near the door, and found them in good condition, and such as he had ordered. The car was also found well refrigerated. Defendants complained because the car had not been shipped on Monday. Bowen & Co. had failed to notify them of the delay in shipment. Bloomgarden told Bowen & Co. that he would take the car if 10 cents off would be allowed, and Bowen said there had been some misunderstanding about the telegram, and he would try and get the reduction. Thereupon Bowen & Co. telegraphed plaintiff on June 18th as follows:
    “ Bloomgarden will only accept car beans, provided ten cents hamper allowance account not shipping Monday. Quality satisfactory.”
    To this plaintiff replied by wire promptly:
    “Our telegram 13th fully advised you. Receiving nothing contrary shipped. You were given ample time to countermand. Will hold Bloomgarden.”

      The car, after the examination made by Bloomgarden, was closed, and nothing further done until Monday morning. Sunday, Bowen and Bloomgarden had a conversation, and defendants concluded to take the beans. Thereupon Bowen & Co. telegraphed plaintiff on Monday morning:
    “Persuaded Bloomgarden take car. Will unload today.”
    Monday morning Bloomgarden took possession of the car; took two loads to the defendants’ markets and sold two to other parties; these four containing about half the car. Complaint was promptly made that the beans were in bad condition and spotted. Defendants telephoned Bowen, who came, in response, to one of the defendants’ markets, and examined the beans. The defendants and Bowen disagree as to what took place there and then; defendants claiming that they then told him that they refused to accept the beans, and that they made an arrangement with Bowen by which defendants would sell them for the account of the plaintiff. They claim that they realized pursuant to that agreement #134, for which they sent a draft to the plaintiff, which was promptly returned and this suit instituted to recover the purchase price. Bowen denies any such agreement, and testified that he had no authority from the plaintiff to make any such contract. At noon of Monday, the 20th, after the alleged conversation and agreement with Bowen, defendants telegraphed:
    “Can’t use car beans. Stock very poor. Advise disposition.”
    To which plaintiff promptly replied:
    “Car belongs to you. Will hold you for it. Wax in perfect condition when shipped.”
    Plaintiff gave evidence tending to show that he took special pains in purchasing and shipping this car of beans, and that they were in perfect condition when shipped. Defendants gave evidence tending to show the bad condition of the beans when taken from the car Monday, two* days after he was notified of their arrival. The jury found for the defendants.
    The charge of the trial court is as follows:
    “ I call your attention to volume 1 of what is known as Miller’s Compilation, page 342, section 739:
    “ ‘When a cause is continued, as provided for in 33 section, and it shall appear that any of the property taken under an attachment consists of animals or perishable property, the defendants may make an order directing the officer having the custody thereof, to dispose of the same as upon execution, and the money realized therefrom, shall be paid over to the defendants to apply as their money realized from the sale of the property attached.’
    “ That is an indirect inference, or reference, and the other a little more direct.
    “Volume 3, page 3136, section 10360:
    “ ‘Whenever the sheriff of any county shall, by virtue-of any attachment or execution issued by a court of record, levy upon any peaches, blackberries, raspberries, or strawberries, he shall proceed to sell the same at such time, place and manner, as he shall deem most beneficial to the interests of the defendant.’
    “ And another section following:
    “ ‘Whenever any constable shall, by virtue of any attachment or execution issued by any justice of the peace, levy upon any peaches, blackberries, raspberries, or strawberries, he shall forthwith make his returns to the defendants, who shall by a written order authorize the constable-to sell said property at such place and manner as said justice shall deem most beneficial.’
    “ I cite these sections to show that there is a little sense in the law, as well as the spirit of the law. I have been trying considerable to find exactly in our statutes anything direct to apply to all cases. I have not been able to-find a case that applies exactly to this case, but the first interrogatory in this case for the jury is: Did the de-
    fendants, the men sued here, accept the goods knowing what they were ? Now, on Saturday they made a casual examination, but that is a matter of evidence. You heard what they said about it, and the second question is:: Were the buyers entitled to examine the goods. before-electing to accept them ? Well, you heard their statement. Whether they had a fair opportunity in an open door of the car, in the depot, a well-filled car, with these goods — whether they had an opportunity to know the whole scope and meaning of the goods, or whether they were such as they were right at the car door we will leave that to you.
    “ And the third question is whether they did not have, as reasonable men, a chance to examine the beans. If they took them out and packed them in again, and repacked them and sent them back to Baltimore, the chances are a hundred to one they never would have been worth a penny; a hundred to one they never could have realized upon goods of that kind. Somebody, somewhere, in some manner had to handle these goods.
    “And the next question is as to the agency of Bowen— whether he could bind any plaintiff or not. You have heard the testimony, which is contradictory. It is not clear. You know it is not clear. Mr. Bowen himself, while he guards himself by saying that he does not remember anything of that kind, in that guarded way he had no authority, he had no written authority, he had no express direction, he had no telegram, but notice, and went to the house on a dicker on these beans. I notice one of the men said they bought the beans from Mr. Bowen. And he was telephoned to go to the ground. Something happened to the beans, and what happened I will leave to you. That was under what circumstances Bowen was the active man for the Baltimore house I will leave to you. And this authority may be either express or implied. It may be implied in this way. His authority may be gathered by a third person’s acts, by the circumstances surrounding the case, from his'holding himself out as the agent, and from his doing acts, and they may not know the direct or the whole scope of his authority, but can deal with him. They may say he has some authority, and we do not know how much. And so you are to judge the case — whether the circumstances or not gave him the authority to do what he does here, and why he did it. The principal is bound by his acts, even if his authority is limited as between the two. That is, if Bowen and the Baltimore house had a bargain of their own — if he had limited authority; if he did not have authority to sell absolutely, and yet if the buyers of 'the beans in Detroit believe from all the circumstances and have a right to believe and have reason to believe from all their dealings that would be a greater authority, and if you believe their theory, then these circumstances and surroundings may be taken into consideration by the jury as a measure of his authority. That is, where a third party has no notice of the limited authority — has no notice of any limit of authority, and acts in good faith, on the general authority, and the circumstances of the authority, you may consider those facts. So that the agency or not of Bowen is a question for the jury.. If you believe his statement, and the statement of the plaintiff in this case, you would say he had no authority to even tell them to go on and sell. If you believe the statement made by the defendants in the case, the buyers of the beans actually, why it was that he had authority. That is, he was acting for them. He was their man, and the circumstances gave them to believe that he could dispose of the beans — that he could sell them in the first instance. Well, I will 'leave that question to you.
    “ Now, the law is so reasonable it will take into account things like this: If a man should come in here and ship in here to his agent a couple of large beef cattle, and by some means one of them would get his leg broken, why, the man would have authority to sell as a broken-legged ox, and to have him killed and disposed of and not be able to go out with the full authority. The law is reasonable. He would have a right to dispose of him in a broken condition, where he could not be sent back to the shipper. So that the law is reasonable in a great many respects in that way. And the law implies people have the right to do the right thing for their employer. That is, they cannot bind them to do the wrong thing. They cannot bind them to their disadvantage, but they may bind them to do the-right thing by their property. To save it. Just as it gives a constable the authority, and gives the sheriff the authority, to do something to save things.
    “ Now, you are to consider all the circumstances. It is not a law question. If these goods were sent on in a merchantable condition, that would be all the law required. But the law implies that they must be sent here in a merchantable condition, if they say nothing about their condition. Unless they are brought as culls; unless they are bought at some cut rate; unless they are bought for bad goods, the law presumes they are good goods, without a word being said one way or the other. If they buy a barrel of apples, or a lot apples, the law implies it is a barrel of good apples. They buy a barrel of flour — the law implies it is not musty flour; it is merchantable flour. So the law puts that implication upon goods that are sent on, and, if they are not up to the standard, in almost all cases they may be returned, but if they were strawberries, or something perishable like the statute speaks of, or raspberries, like that, unable to be returned, it would be silly to send them back to make a bill of expense.
    “Now, let us see how wise and how careful and how reasonable you will be. If the blame is upon the buyer in this case — if there is any attempt to creep out of a bargain, and it is on the buyer, why, hold them to the contract; and if it is on the seller, and there is any attempt to force a bargain unlawfully on goods not salable, not merchantable, why, hold them to the contract.
    “Now, the recovery upon the part of the plaintiff is in the neighborhood of $540, and the recovery upon the part of the defendant — that is, upon his basis, and the theory of the defendant, is $134. It is a recovery for the plaintiff in any event, but it is the amount.

      “Mr. Jones: The correct amount the plaintiff asks is $546.

      “The Court: Will one of the jury take that down, and the other is $134.06. We will leave the whole matter to you. As I said during the case, agency is'a question of fact, and the whole matter is in dispute. ”

      Clark, Jones & Bryant, for appellants.

      Bowen, Douglas, Whiting & Murfin, for appellee.
   Grant, J.

(after stating the facts). The errors in the charge are too patent and glaring to require much comment. It gave the jury to understand that the defendants had the same right to dispose of this perishable property under their contract for its purchase that officers would have when levying upon perishable property under writs of attachment and execution. It furthermore gave •the jury to understand that, if the defendants refused to accept the beans, it was their duty to reship the car to Baltimore. The illustration about the cattle placed the parties to this suit in the position of principal and agent instead of vendor and vendee. The charge also stated that holding one’s self out as agent is evidence of authority.

The brokers, Bowen & Co., had no authority to make a contract with defendants on behalf of the plaintiff to annul the contract of sale and authorize them to sell the beans for the account of the plaintiff. Bowen & Co. were simply brokers or middlemen. Defendants knew that they were not purchasing of them, but of the plaintiff. The defendants, after the inspection made by them Saturday morning, closed the contract, and Bowen & Co. so telegraphed plaintiff. The failure to ship Monday was waived. Bowen & Co.’s connection with the transaction was closed.' They were employed for the sole purpose of making a sale, and made it. They had no authority to take any other steps in the transaction. It was therefore error to admit evidence of this arrangement with Bowen & Co., of which the plaintiff knew nothing. If such an arrangement — which Bowen denies — was made, defendants evidently doubted Bowen’s authority, for they after-wards sent a telegram which is inconsistent with it.

The most difficult question arises upon the inspection. It is conceded that the defendants were entitled to inspect the beans upon their arrival in Detroit, and that they were entitled to a reasonable time in which to inspect. The reasonable time allowed by the law for inspection depends upon the circumstances of the case, and is usually a question of fact for the jury. 2 Mechem on Sales, .§ 1381. The vendee is required to act promptly. George D. Sisson Lumber & Shingle Co. v. Haak, 139 Mich. 383. This reasonable time must also depend more or less upon the character of the goods shipped, and the opportunity for inspection. A more prompt inspection of perishable property is required than of nonperishable property. This is based upon sound reason, but counsel cite no authorities upon the subject, and I have been unable to find any. A car load of perishable fruit or vegetables should receive more prompt attention than a car load of lumber. Where lumber was shipped in box cars the vendees were held entitled to take it to their yards, unload and examine before accepting it. Holmes v. Gregg, 66 N. H. 621.

The learned counsel for the plaintiff insist that the acts of the defendants amounted to an acceptance of the goods, and bars any defense to this action. That depends upon the character of the inspection which the defendants ought, in justice, to have made. It has been held that an inspection sufficient in law is not conclusive upon the rights of the vendee, where there is a latent defect afterwards discovered. Miller v. Moore, 83 Ga. 684 (6 L. R. A. 374); 2 Mechem on Sales, §§ 1392, 1393. If the defendants did not make the customary and necessary inspection, they cannot recover. If they did make an inspection customary and sufficient to determine the character of the entire car load, was it customary and proper to leave the car load, in hot weather, in the yards of the railroad company, for 48 hours without further icing ? One of the defendants’ witnesses testified that it was impossible to determine the quality of the beans until one got into the two ends of the car. If this be the fact and the defendants knew it, was it their duty to make that inspection at once, even if- it would take several hours ? Can they defend by postponing it two days, leaving the beans in the car ? This same witness saw these beans in the car, but on just what day is not clear. When asked what the condition of the beans was, he replied, ‘ ‘ Well, they' were the same, if not worse; on account of the ice getting out, some of them nested in the center.”

The question is an important one, and doss not seem to have received the attention and consideration in the court below that it ought. We are unable to say upon this record that a proper inspection was made. The first attempt at inspection was made in seasonable time. The instruction of the court upon this point gave the jury no rule of law to govern them. Facts other than those appearing in this record may, upon a new trial, affect the question. We can now only announce some general rules of law applicable to the case. It was the duty of the defendants to make a prompt inspection and such as is customary and sufficient to determine the character of the goods. If they made such an inspection they did all that the law requires, and if there were defects in the beans not opened, which existed at the time of shipment, the plaintiff cannot recover on the contract, but only on a count of quantum meruit. Miller v. Moore, supra. If that inspection was not such as the law requires, then notice of rescission was not given within a reasonable time, and the defendants are liable for the full amount of the contract price. If a more extensive inspection was necessary to determine the character of the goods, it was the duty of the defendants to make it, and they cannot defend upon the ground that it would take them several hours to do it. If the beans became damaged after the inspection, the plaintiff is not responsible for such damage. If, when shipped, they were such as the contract called for, and were shipped in good condition, the plaintiff is not responsible for damages resulting from any cause after they were so shipped.

Where a vendee notifies the vendor within a reasonable time of the rescission of the contract because the goods are not such as were contracted for, and asks what disposition he shall make of them, and the vendor implies, insisting that he has fully performed the contract, the vendee may dispose of the goods at the best price obtainable, and interpose, when sued, the defense of the vendor’s noucompliance with the contract. Howard v. Hoey, 23 Wend. (N. Y.) 350. There are many decisions to the contrary, but the weight of authority favors the rule above stated, and we think it is founded in sound reason. 2 Mechem on Sales, §§ 1392,1393. This case is easily distinguishable from Kupfer v. Michigan Clothing Co., 141 Mich. 325.

Judgment reversed, and new trial ordered.

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


text:
    STATE ROAD BRIDGE CO. v. SAGINAW CIRCUIT JUDGE.
    1. Quo Warranto — Injunction — Interference With Status Quo.
    On an information in the nature of quo warranto against a toll bridge company to test its right to maintain its franchise and privilege of collecting tolls, it is improper to grant a temporary injunction restraining defendant from collecting any tolls or further exercising any rights which it claims under its franchise, the result being to deprive defendant of the possession, use, and control of its property, without a hearing on the merits.
    2. Mandamus — Propriety—Appealable Order — Decision.
    Though appeal and not mandamus is the proper remedy, where the circuit court in chancery issues an improper restraining order, the court will express its Views, having no doubt that the circuit judge, being advised thereof, will set the order aside upon application.
    3. Venue — Change—Motion—Notice. Pour days’ notice is required for hearing amotion for change of . venue.
    Mandamus by the State Road Bridge Company to compel William G. Gage, circuit judge of Saginaw county, to vacate an order granting a temporary injunction, and denying a motion for a change of venue.
    Submitted January 30, 1906.
    (Calendar No. 21,523.)
    Writ denied March 13, 1906.
    December 26,1905, the prosecuting attorney of Saginaw county filed a complaint in the circuit court in chancery, in the nature of an information in quo warranto, to test the right of the State Road Bridge Company to maintain its franchise and privilege of collecting tolls over its bridge across the Tittabawassee river, and for an injunction to restrain it from collecting tolls until the further order of the court. Upon filing the complaint, application was made to the court to issue a temporary injunction. An order to show cause was issued, returnable December 30th at 9 o’clock a. m. Such motion was served at 7:30 p. m. December 37th. December 30th the attorney for the company appeared and asked an extension of two weeks’ further time to answer. This was refused, and the court extended the time only until 9:30 a. m. January 3d, requiring the company to serve its answer not later than 3 p. m. on January 1st. Several important legal and constitutional questions are raised by the complaint. On January 1st, within the time limited, the attorneys for the company filed and served a demurrer and a motion for a change of venue, to be heard at the same time, based upon the files in the case and an affidavit of one of the officers of the company. This affidavit sets forth as a reason for the change extreme prejudice against the company in Saginaw county. The court denied the application for a change of venue, and granted a temporary injunction restraining the company from collecting any tolls or further exercising any rights which it claimed under its franchise.

      De Vere Hall{W. F. Paine, of counsel), for relators.

      Frank A. Bockwith, Prosecuting Attorney {F. Et Emerick and L. T. Durand, of counsel), for respondent.
   Grant, J.

{after stating the facts). The usual office of an injunction is to preserve the status quo of property until the final hearing upon the merits. The result of the restraining order in this case is to deprive the parties of the possession of their property, of the right and control over it, the use of, and the income from it. The effect of this restraining order is the same as was that in Hall v. Wayne Circuit Judge, 111 Mich. 395, in which we said:

“This order attempts to divest possession of property on a preliminary inquiry, and, if not an absolute nullity, was improvidently made.”

The order in this case as effectually deprived the company of the possession and use of its property as did the appointing of a receiver in that case. In that case we held that appeal, not the writ of mandamus, is the proper remedy. As we said then, so we say now:

“We have no doubt that the circuit judge will vacate the order upon a renewal of the application and upon being advised of the view taken hy this court.”

There is no decree upon the merits of the questions involved, and they are therefore not before us for determination. We have already decided that a four days’ notice is required for hearing a motion for change of venue. Peterson v. St. Clair Circuit Judge, ante, 79.

The writ is denied, without costs.

McAlvay, Ostrander, Hooker, and Moore, JJ., •concurred. ■


author: Ostrander, J.

text:
    STOCK v. WAYNE CIRCUIT JUDGE.
    Justices op the Peace — City op Detroit — Appeals—Time.
    The circuit court of Wayne county has no authority to allow an appeal from a judgment of a justice of the peace of the city of Detroit more than five days after its rendition, unless the showing required by section 909, 1 Comp. Laws, is made.
    Mandamus by Jerome K. Stock to compel Henry A. Mandell, circuit judge of Wayne county, to vacate an order allowing an appeal from a justice’s judgment.
    Submitted January 30, 1906.
    (Calendar No. 21,513.)
    Writ granted March 13, 1906.

      Percy W. Grose and Henderson & Martindale, for relator.

      Bowen, Douglas, Whiting & Murfin, for respondent.
   Ostrander, J.

In this matter, the circuit court for the county of Wayne, by an order made more than five days after the rendition of judgment, and for reasons within the third subdivision of the provision of the statute hereinafter quoted, and without any showing that the moving party had been prevented from taking the appeal within five days by circumstances not under his control, authorized an appeal from a judgment rendered by one of the justices of the peace of the city of Detroit. An application to vacate said order was denied, and it is sought to compel vacation of the order by mandamus.

The general law (1 Comp. Laws, §§ 902-918) provides for appeals from judgments rendered by justices of the peace. Such appeal must be made within five days after the rendition of the judgment (section 903) unless (section 909) it is authorized by the circuit court or by the circuit judge at chambers after the expiration of five days when the party making the appeal has been prevented from taking the same by circumstances not under his control. The Detroit justices’ courts act (Act No. 460, Local Acts 1895), governing appeals from judgments of justices of the peace of the city of Detroit, reads as follows:

“ Sec. 10. No appeal shall be taken from any judgment of any justice of the peace in said city of Detroit, except in the following cases:
“First. When said justice shall disallow any claim in favor of any plaintiff or defendant in any cause in said justice’s courts, in whole or in part, to the amount of fifty dollars.
. “ Second. When such justice shall render a judgment to the amount of fifty dollars, exclusive of costs. In either of which cases the party aggrieved may appeal.
Third. Appeals may be authorized by the circuit court of the county of Wayne when the party making the appeal has been prevented from making a defense upon the merits of the cause in which such appeal is taken by circumstances not under his control; and such appeal may also be authorized when justice requires that such appeal should be authorized; and in all cases where the party against whom such appeal is sought has appeared in said justice’s courts by an attorney or agent it will be sufficient to serve such attorney or agent with the notices of all subsequent proceedings in such cause and all orders made therein by said circuit court may be served on said attorney or agent, and such service shall have the same effect as though made on the party against whom such appeal is taken.”

This court held in Goldhamer v. Wayne Circuit Judge, 107 Mich. 259, a case in which an appeal had been authorized 19 days after judgment and in which the return stated that the appeal had been authorized for reasons stated in the third subdivision above set out, that the order authorizing such appeal should be vacated for the reason 'that the provisions of the act quoted could not be construed as giving the circuit court discretionary power with respect to dilatory appeals. In Stanton v. Wayne Circuit Judge, 126 Mich. 715, in which mandamus was granted to vacate an order allowing an appeal from a justice’s judgment, the motion for leave to appeal was made 11 days after judgment, upon the ground that the judgment was obtained without trial by unjust and unfair means, and because the judgment was unjust. It was nowhere stated in the motion, or in the affidavits accompanying it, that defendant had been prevented from making an application for appeal within five days after judgment was rendered by causes not under its control. It was held that the act did not give the circuit court discretionary power to allow an appeal after the lapse of the five days prescribed by the general statute for taking appeals; that the right to appeal after five days existed only whqn the party had been prevented from appealing within the time by circumstances beyond his control. The justices’ courts act of 1895 was repealed and an act substituted. Act No. 426, Local Acts 1901; Act No. 475, Local Acts 1903. But the new acts re-enacted the section in question with an added subdivision as follows:

“ Fourth. Under absolutely no circumstances shall any appeal be allowed or authorized after five days from the rendition of judgment, except as herein otherwise provided.”

It is stated in the return made to the order to show cause, issued in this matter, that it has been supposed that by virtue of the fourth subdivision the circuit court for the county of Wayne had jurisdiction to authorize appeals more than five days after rendition of judgment when the reasons stated in the third subdivision were made to appear. If the words ‘£ except as herein otherwise provided ” have any meaning, we are not able, by construction, to give them a meaning which will sustain the action of the court below. The entire provision for appeals bears some evidence of intention to restrict,, rather than to enlarge, the right to appeal. Whether the provision of the fourth subdivison does or does not cut off the right to appeal, after five days, in any case and for any reasons, excepting those stated in the third subdivision, we are agreed that no appeal is provided for after five days unless the showing required by 1 Comp. Laws, § 909, is made.

The writ is granted.

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


author: Hooker, J.

text:
    AUDITOR GENERAL v. O’NEILL.
    1. Municipal Corporations — Sewers—Assessment of Benefits —Inequality.
    Assessing all the lots in a block the same amount per square ' foot for construction of a sewer in a street along one side of the block is not an equal assessment in proportion to the benefits, though the sewer is intended, among other things, to take the surf ace water from the entire block; it being also intended to furnish house drainage for the lots on such street, and they in fact being drained into it, while none of the houses on the opposite side of the block can be drained into it.

    3. Same — Certificate of Assessor — Conclusiveness.
    The certificate of the city engineer, who apportioned the benefits, that he has assessed the lots for a sewer according to the benefits resulting to the lots, is subject to review, where it conclusively appears that the apportionment does not correspond to actual benefits.
    Appeal from St. Clair; Tappan, J.
    Submitted January 30, 1906.
    (Docket No. 55.)
    Decided March 13,1906.
    Petition by James B. Bradley, auditor general, against John G. O’Neill, executor of the last will and testament of Peter J. O’Neill, deceased, and others, for the sale of land delinquent for taxes. Prom a decree for contestants, petitioner appeals.
    Affirmed.

      Joseph Walsh (0. A. Wagner, of counsel), for petitioner.

      Stevens, Graham & Stevens (William T. Mitchell, of counsel), for contestants.

       As to validity of frontage rule of assessment, see note to City of Raleigh v. Peace (N. C.), 17 L. R. A. 830, and note to Davis v. City of Litchfield. (Ill.), 31 L. R. A. 563.

   Hooker, J.

The appellees contested a tax sought to

be enforced against them by the auditor general. They owned separate parcels of land, but their several contests, being similar, have been combined for hearing in this case. Their contest arises over a sewer assessment, and it was sustained by the circuit court, and the prayer of the bill was denied as to these items. Black river flows in a southeasterly direction. River street is north of the river, with which it runs parallel, separated from it by one tier of lots. Huron avenue runs north and south intersecting River street, and extending to the river bank where there is a bridge. Butler street runs east and west, intersecting Huron avenue, and extends westerly to Erie street, which is also the northwestern end of River street. Bounded by these four streets is a block of lots in the nature of a right-angled triangle, except that the northerly line on Butler street and the southerly line on River street are not extended to a point of intersection, leaving a short boundary on Erie street. The accompanying drawing will serve to show the relative location of the streets, sewer, lots, etc.

The contestants are owners oflots separated from River street by intervening lots, and the principal meritorious RI I J I~4 question raised is that they are not benefited by the sewer •on River street, and, even if it can be said that they are benefited in some degree, it is not the same as that of other lots. The contested tax is an assessment for a sewer on River street, all other taxes having been paid. The cost of the sewer was assessed upon the basis of square feet, at one price per foot. All of the lots in question may be, and in fact are, adequately drained into the Butler street or Huron avenue sewers, so far as house drainage is concerned, and none of them can be drained into the River street sewer, while most, if not all, of the lots fronting River street are drained into the new sewer on that street. It is claimed that this sewer was intended to take the surface water from all of this block, the surface of which descends toward River street. If this is so, it is nevertheless true that the sewer was designed to furnish, and does furnish, house drainage for the lots fronting River street, and that the surface drainage to these lots is as valuable and necessary to those lots as to contestants’ lots, if not more valuable and necessary. In our opinion, it is most conclusively shown that these things are true, and that an assessment on the basis of square feet alone, is not an equal, or substantially equal, assessment, in proportion to benefits, although in the matter of surface drainage, and the public health, contestants’ premises, as well as the other lots, may be benefited by the new sewer on River street.

It is said that the certificate of the city engineer, who apportioned the benefits, is conclusive of the question, and that it is not subject to review. See Walker v. City of Detroit, 138 Mich. 639. His certificate is as follows:

“I, W. W. Phelps, city engineer, do hereby certify that I have included in the annexed assessment roll all the real estate in the assessment district as fixed and determined by the common council, together with the name of each owner or occupant of each lot, tract, or parcel of land described in said roll so far as I could ascertain the same after diligent search and inquiry.
“ And I further certify that I have assessed upon each description of land its just proportion of the amount directed to be raised by the common council.
“I further certify that I have apportioned the amounts assessed against each parcel of land according to the benefits resulting to each of said lots, tracts, and parcels of land and that in so doing I have taken into account the area of same.
“ I further certify that I have assessed to the city of Port Huron its just proportion of the cost and expense of the construction of said sewer and the expense incident thereto in like manner as I have assessed the private-property mentioned and described in said roll.
“W. W. Phelps,
“ City Engineer.”

If the Walker Case is to be distinguished from this case, it must be upon the ground that in that case it was possible to say that the conditions were consistent with the apportionment of benefits made, although such assessments, were identical with a computation made upon a basis of superficial area. The fact that the certificate in that case did not, and that the one in this case does, show that the superficial area was taken into consideration, is not controlling. It is demonstrable mathematically in both cases. In the present case, we think that it can be said to conclusively appear, notwithstanding the certificate to the contrary, that the apportionment does not correspond to-actual benefits, and was not designed to do so. This being so, we should not say that the judgment of the assess- or cannot be reviewed.

It is unnecessary to discuss other questions. See Thomas v. Gain, 35 Mich. 155.

The decree is affirmed, with costs.

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


text:
    HOWLAND v. PRENTICE.
    1. Counties — Board of Supervisors — Election op School Examiner-Votes Required.
    The appointment by a board of supervisors of a member of the board of school examiners, under Act No. 43, Pub. Acts 1901, is the transaction of ordinary business, as to which a majority of a quorum is sufficient, and the appointee is not required to have cast for him the votes of a majority of all the members elect. Section 2476, 1 Comp. Laws.
    2. Evidence — Records—Parol Evidence to Vary.
    On quo warranto to try title to the office of member of the board of school examiners, where the record of the board of supervisors does not show the number of members present when the appointment was made, except as the votes taken show it, parol evidence is not admissible to show that members were present who did not vote.
    Error to Van Burén; Carr, J.
    Submitted January 31, 1906.
    (Docket No. 76.)
    Decided March 13, 1906.
    Quo warranto proceedings by Richard S- Howland against A. D. Prentice to try the title to the office of School examiner of Van Burén county. There was judgment of ouster, and respondent brings error.
    Affirmed.
    This is a quo warranto proceeding to test the title to the office of member of the board of school examiners for the county of Van Burén. The legislature, by ActNo. 43, Pub. Acts 1901, empowered the several boards of supervisors of the different counties of the State to “elect ” a county commissioner of schools, and to “ appoint ” school examiners. The statute (1 Comp. Laws, § 3476) provides:
    “A majority of the supervisors of any county shall constitute a quorum for the transaction of the ordinary business of the county, and all questions which shall arise at their meetings shall be determined by the votes of a majority of the supervisors present, except upon the final passage or adoption of any measure or resolution, or the allowance of any claim against the county, in which case a majority of all the members elect shall be necessary.”
    Relator and respondent were the two candidates for the appointment as school examiner. The board consisted of 21 members. On the ninth ballot relator received 10 votes, respondent 9. The chairman decided that relator was not appointed, and ordered another ballot. On the eleventh ballot respondent received 11 votes and was declared elected. The record of the proceedings of the board does not show the number of supervisors present when the different ballots were taken, except as the votes taken show it. Relator claims that he was elected on the ninth ballot by a majority of the quorum. Respondent claims (1) that it required a majority of the supervisors elected to appoint; (2) that he was entitled to show by parol evidence that other members were present when the ninth ballot was taken, but did not vote. The court below sustained the claim of relator.

      Wicksall & Cogshall (Anderson & Warner, of counsel), for appellant.

      Thomas J. Cavanaugh, for appellee.
   Grant, J.

{after stating the facts). In the absence of statutory requirement a plurality of the’ votes cast or the majority of a quorum is sufficient, and no declaration of the election by the chairman is essential. Conrad v. Stone, 78 Mich. 635. Does the appointment of a school examiner, under Act No. 43, Pub. Acts 1901, come within the exception to section 2476, 1 Comp. Laws, or is it the transaction of the ordinary business of the board ? Act No. 43, Pub. Acts 1901, makes it a regular and ordinary duty of the board of supervisors to appoint these commissioners. We think it does not come within the exception.

Was the respondent entitled to contradict the record by showing that supervisors were present who did not vote ? It was said in State, ex rel. Duane, v. Fagan, 42 Conn. 32, that the number of ballots cast would be taken to indicate the number of lawful voters present. It is not the duty of the clerk to ascertain whether the supervisors not responding to their names, or to a standing vote, or to a vote by hand raising, or to a viva voce vote, or a ballot, are present in the room. The presumption is that they are absent, and that if present they would perform their duty in voting. The validity of measures adopted and the appointment of persons to office cannot be permitted to rest in parol. Any one desiring to raise the question whether those not voting are present should have it appear upon the record. The same principle which applies to the journals of legislative proceedings (Sackrider v. Board of Sup’rs of Saginaw Co., 79 Mich. 59; Attorney General v. Rice, 64 Mich. 385) applies also to the proceedings of the boards of supervisors. There are cases where facts omitted from the record, which it was the duty of the clerk to record, may be supplied by parol. Township of Taymouth v. Koehler, 35 Mich. 22; School Dist. No. 2 of Buckeye Township v. Clark, 90 Mich. 435. This, however, does not come within those cases.

It follows that the judgment must be affirmed.

McAlvay, Ostrander, Hooker, and Moore, JJ., concurred.


text:
    SNYDER v. PATTON & GIBSON CO.
    1. Account — Action—Bills of Particulars — Receipts—Statements— Conflict — Collusiveness.
    In an action on account, the facts that plaintiff files bills of particulars differing in their claims, and has presented statements and given receipts for payments inconsistent with his claim, are not conclusive against him, but are properly submitted to the jury.
    2. Witnesses — Refreshing Memory — Use of Bill of Particulars.
    Plaintiff, in an action on account, after testifying that he copied the bill of particulars from his books, and that it was correct, is entitled to use such bill of particulars in testifying to the amount due.
    3. Account — Action—Instructions.
    In an action on an account, an instruction that there is no dispute about the amount of certain items, but that there is a dispute as to whether it has been paid, is proper, although a receipted statement on which payment is admitted includes such items.
    4. Contracts — Deviation in Performance.
    Where a contract to do grading provides that the contractor shall be entitled to pay for cost of transportation of his tools to a certain place, he is entitled to recover what it cost him to freight his good to a different point for which the cost of freight was less.
    5. Evidence — Self-Serving Declaration.
    In an action against a corporation, a letter from defendant’s bookkeeper to its president is not admissible.
    6. Appeal and Error — Assignment of Errors — Charge as a Whole.
    Assigning error “upon the charge as a whole” is not allowable.
    7. Contracts — Allowance for Incomplete Performance— Question for Jury.
    In an action for an unpaid balance upon an account for labor, defendant’s right to an allowance of a certain sum, by reason of plaintiff’s failure to properly finish his job, is a question for the jury.

      Error to Washtenaw; Kinne, J.
    Submitted January 31, 1906.
    (Docket No. 77.)
    Decided March 13, 1906.
    Assumpsit by Clinton J. Snyder and Clarence L. Snyder, copartners as C. J? Snyder & Son, against the Patton & Gibson Company for work and labor. There was judgment for plaintiffs, and defendant brings error.
    Affirmed.

      N. H. Stewart, for appellant.

      Thomas J. Cavanaugh (Cavanaugh & Wedemeyer, ■of counsel), for appellees.
   Hooker, J.

The defendant has appealed from a judgment of $1,197.50, entered against it, upon a verdict in plaintiffs’ favor. The suit was brought to recover an unpaid balance upon an account for labor. The defendant .had taken a contract to do grading, etc., for the Michigan Central Railroad Co. Plaintiffs had done some of this work by contract with Tench, a subcontractor under the defendant, after the completion of which they did some work for the defendant. The claims of the plaintiffs are few and plain. They are:

(1) That they graded 289 yards on Jackson cut, at

16f cents per yard............................. $47 68

(2) 855 yards on Shanty cut, at 164 cents......... 58 57

(8) At Lawton job, 5,200 yds., at 30 cents........ 1,560 00

(4) Day work at Mattawan...................... 186 48

(5) Cost of transportation....................... 108 00

(6) Freight on tools............................. 52 80

$2,013 53

Credit, cash..................................... 773 13

$1,240 40

They offered testimony tending to show that they did all of the above work, and that the prices charged were agreed upon, except the item of 5,200 yards, which they testified was taken at the agreed price of 16 cents on an estimate of 1,800 yards to be moved from 30 to 800 feet, but before the work was done the plans were changed, increasing the distance that the earth was moved, and the amount of excavation; that Patton was informed that plaintiff could not do this for 16 cents, and that it was worth 30 cents, and he told plaintiff to go ahead and do the work. They also produced testimony tending to show an agreement to furnish plaintiffs free transportation for their equipment, which was not done, and the amount that it cost to take the equipment to Ann Arbor, and Lansing, where a portion of it was taken at a less cost than to have taken it to Ann Arbor. This testimony was contradicted by defendant’s witnesses, both as to the amount of work done and the price agreed upon. This would seem to raise a plain issue of fact for the jury, but we infer, from the defendant’s brief, that it is its claim that the fact that two bills of particulars, differing in their items, and plaintiffs’ signature to a statement, and receipt, when a payment was made, should have been held to be conclusive against the plaintiffs.

If the plaintiffs made different claims, whether in the form of bills of particulars or not, it was proper for the jury to consider that fact, and it was proper to submit to the jury the receipt, and the circumstances under which it was signed. Neither was conclusive, however, and the court did not err in refusing to so treat them. The subjects of quantity, price, and payment were for the jury to decide.

After one of the plaintiffs had testified in detail to the various items of the account the following occurred:

They paid me in all $719 in cash and horse and mules.
Q. Do you have a record or book account of it anywhere ?
“A. Yes, sir; it might be $729.
Q. $773.13 your bill of particulars says.
“A. It is in that neighborhood, if I write anything down and have a record of it I don’t try to remember it. I copied my bill of particulars right from the books. I don’t have it here. It is copied right from the timebooks.
Q. Whatever is upon your bill of particulars you have received ?
A. Yes, it is something over $700.
Q. There is the bill of particulars.
“A. $773.13 is what they have paid.
Q. How much do you claim is now due, or was, on the 26th of October, 1904 ?
Mr. Stewart: I object to his swearing from a bill of particulars, that is mere pleading. If he has any account he can make up here I have no objection to it.
The Court: He may state. (Counsel for defendant excepted.)
“ A. $1,240.40 they owe, after deducting $773.13.”

Error is assigned upon this. It was obviously a proper examination.

In this connection we will refer to the charge. The court stated that there was no dispute about the amount earned in the Jackson and Shanty cuts, but that there was a dispute as to whether it had been paid for. It is said that this was error, for the reason that the receipted statement, upon which the payment of $548.14 was admitted, included these items, being the first items therein. It is contended that this should have eliminated these items as paid. It had that effect practically, without doubt; but to have taken those items from the jury, without taking a corresponding amount from the admitted payments, would have been unjust and erroneous. The course taken by the court was the only proper one. Those items, with others, constituted a statement made by the defendant, all being admittedly paid, but with the exception of these two items all were disputed, and the whole matter was open to consideration. It was also proper, as already indicated, for the court to submit to the jury the question whether this payment was accepted as payment in full, or on account. We think that nothing will be found in the case of Hackley v. Headley, 45 Mich. 569, at variance with what has been said on the subject.

It is unnecessary to discuss the questions relating to transportation further than to say that there was no error in the instruction that:

“Ithink he would also be entitled to recover what it cost him to freight his goods to Lansing, inasmuch as that would be less than it would cost to freight to Ann Arbor.”

The court refused to allow defendant to introduce a letter from Applegate, its bookkeeper, to its president. It was not admissible.

Assigning error “ upon the charge as a whole ” has long been obsolete under our rules, if the practice ever prevailed.

It is contended that defendant should have been allowed $62.12.by reason of plaintiff’s failure to properly finish his jobs. The court left the question to the jury, which was all that defendant had a right to ask.

The court did not err in refusing a new trial.

The judgment is affirmed.

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


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    JACKSON v. MASON.
    1. Taxation — Sales —Petition—Description op Land — Sufpi-CIENCY.
    In a petition for the sale of lands for taxes, the land is sufficiently described where the name and description of the subdivision is given, followed by the lot number and the tax due thereon, followed by the name and description of another subdivision with the numbers of lots therein to be sold with the amounts due on each, etc., the sequence of items in the list sufficiently indicating whether a particular lot is in the preceding or following subdivision.
    2. Same —Notice to Redeem — Description op Land — Sufficiency.
    A notice to redeem land from a tax sale is not insufficient because failing to describe the land, where the error relied upon is that in naming the subdivision of the city of which the lot is a part the decimal point is omitted, so that the subdivision is stated as containing 944 acres instead of 9.44 acres.
    8. Same — Several Parcels.
    Where several parcels of land are separately assessed and sold to the same purchaser, a single deed is sufficient and they may all be included in one notice, but the amount paid for each parcel must be stated so that persons interested may repurchase any one or any number of the several parcels.
    4. Same — Right to Notice — Purchasers Under Land Contracts.
    Whether purchasers under contract of lands sold for taxes, who have availed themselves of their right to have their contracts recorded, are not entitled to the statutory notice to redeem from the sale, though not within the letter of the law, quaere.
    Appeal from Wayne; Frazer, J.
    Submitted February 9, 1906.
    (Docket No. 124.)
    Decided March 13, 1906.
    Petition by Alfred Jackson against Joseph T. Mason and others for a writ of assistance. From an order dismissing the petition, petitioner appeals.
    Affirmed.

      Sheridan J. Colby, for petitioner.

      J. Emmet Sullivan, for defendants.
   Hooker, J.

The appellant’s petition for a writ of assistance, filed under the provisions of section 137 of the tax law(l Comp. Laws, §'3958), was dismissed.

Counsel for the appellee contend:

(1) That the description in the auditor general’s petition is defective, and did not give the court jurisdiction to order the sale of the lots in question.

(2) The notice served described the lots as being in Sullivan & Russell’s Subdivision of west 944 acres, etc. It should have been the Sullivan & Russell’s Subdivision of 9.44 acres.

(3) The notice served contained a description of all of the 34 lots, and stated that a reconveyance could be had upon payment of an aggregate sum of $41.38 (including the purchase price paid for all of the several lots), together with 100 per cent, additional, and the fees of the sheriff, etc., and the further sum of $5 for each description; said lots being assessed and sold separately.

(4) Notice was not served upon several persons holding land contracts for separate lots, and they were entitled to notice under the statute.

The descriptions in the petition were entered as follows:

“ Taxes of 1896.
“Township of Springwells. ‘
“Sullivan & Russell’s Sub. of W. 9 44-100 acres of P. O. 40 lying N. of Mich. Avenue.
“Lot Amt. of Taxes. Interest. Collection Pee. Charges. Total. .55 $0.84 $0.15 $0.03 $0.70 $1.73
[Here follow other lots.]
“Tait & Harbough’s Addition on W. 13 33-100 acres of P. C. 45.” [Here follow entries of lots in this addition.]

It is said that the description is indefinite, for the reason that the petition does not indicate whether the lots were in Sullivan & Russell’s or Tait & Harbough’s subdivision. In our opinion there is no force in this claim* ■ See Auditor General v. Sparrow, 116 Mich. 574.

The statutory notice served upon Mason and others is attacked upon the ground of a defective description. It was as follows:

“Lots fifty-five (55) to fifty-eight (58) inclusive * * * of Sullivan & Russell’s Subdivision of West 944 acres of private claim 40 North of Michigan Avenue, in the township of Springwells, county of Wayne and State of Michigan, as per plat thereof recorded in Liber 14 of plats on page 91, Wayne county Records.”

The specific defect is in the description 944 acres, whereas the plat shows it to be 9.44 acres. In other words, the omission of the decimal point is said to be fatal. The description is unmistakable, and therefore valid.

The lots were sold separately, being so assessed. The aggregate purchase price was $41.28 (1896 tax), as stated in the notice. Our understanding is that they were included in one deed, as it was proper that they should be. And we have no doubt that all might properly be included in one notice, thereby avoiding unnecessary expense. But it is also true that the persons interested had the right to repurchase any one or any number of the separate lots, and were not required to purchase all. We have held that, where a notice was based upon several years’ taxes, a notice giving the aggregate was proper. Williams v. Olson, 141 Mich. 580; Tucker v. Van Winkle, 142 Mich. 210. This was for the reason that to repurchase all taxes upon the description must be paid. Where, however, as in this case, there are various descriptions separately sold, the amount paid for each should be given in the notice, failing in which the notice is not a compliance with law.

While vendees in land contracts are not mentioned in the statute (Pub. Acts 1893, Act No. 206, § 141, as amended by Act No. 229, Pub. Acts 1897), such a vendee is entitled to have his contracts recorded, and where he has availed himself of the privilege, there is much force in the claim that he falls within the spirit of the statute, although not within its letter, and is entitled to notice. As the defect in the notice disposes of the case, we need not decide the latter question.

The order of the learned circuit judge is affirmed.

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


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    LINSELL v. LINSELL.
    Appeal and Error.
    This case, involving a single issue of fact, is held to have been properly submitted to the jury.
    Error to Wayne; Brooke, J.
    Submitted February 2, 1906.
    (Docket No. 87.)
    Decided March 13, 1906.
    Assumpsit by Martha Linsell against Henry Linsell. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      William E. Henze, for appellant.

      E. O. Moriarty and Lehmann & Biggs, for appellee.
   Grant, J.

For a statement of the issue in this case see 138 Mich. 64. Upon a new trial a verdict and judgment were rendered for the plaintiff. It is agreed by counsel, and the jury were instructed, that the sole issue was, Did the defendant and plaintiff’s husband, at the time she and her husband deeded their interest in the estate of her father to the defendant, agree that |500 should be applied in payment upon the purchase price for rent of a house owned by the defendant and which had been for some years occupied by plaintiff and her husband ? The court very clearly and fully explained to the jury the theory of each party, and instructed, them that if such an agreement was made the plaintiff could not recover. The jury found that no such agreement was made, and that plaintiff’s husband had assigned his claim against the defendant to her.

We find no error in the instructions of the court or in the refusal to give any of the defendant’s requests. It is’ not of importance to the profession or to the parties to discuss the questions raised upon the instructions and the requests to charge. The principle involved is elementary, and a discussion would be of no use as a precedent. The same objection that was raised to the admission of testimony on the former trial is now raised. It was admissible, for the same reasons as expressed in the former opinion.

Judgment affirmed.

McAlvay, Ostrander, Hooker, and Moore, JJ., concurred.


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    GRAHAM v. WAYNE CIRCUIT JUDGE.
    1. Mandamus — Propriety—Mandamus in Circuit Court..
    Certiorari and not mandamus is the remedy to review refusal by the circuit court of a mandamus to require the clerk of the justices’courts of Detroit to receive and file an appeal. Sup. Ct. Rule 12.
    b2. Same — Denial of Leave to Appeal prom Justice’s Court.
    Mandamus is a proper writ by which to review an order of the circuit court denying leave to appeal from a judgment of a justice of the peace.
    3. Justices op the Peace — Appeals—City op Detroit.
    Relator, desiring to appeal from a judgment of a justice of the peace in Detroit, after office hours on the fifth day, tendered an affidavit, bond, and the costs to a deputy clerk who refused to receive them as outside his duty. On the following day the clerk refused them because not tendered in time. A writ of mandamus to compel him to receive and file the appeal having been denied by the circuit.court, relator applied to the circuit court for leave to take a special appeal under section 909, 1 Comp. Laws. Held, that since he had the balance of the fifth day, after refusal of the appeal by the deputy clerk, to find the clerk and pay him the fees, and find the justice who tried the case and present to him or some member of his family the affidavit and bond, and made no effort to do so, he was not entitled to a special appeal.
    Mandamus by James Graham to compel George S. Hosmer, circuit judge of Wayne county, to vacate an order denying a special appeal from a justice’s judgment.
    Submitted February 27, 1906.
    (Calendar No. 21,557.)
    Writ denied March 13, 1906.

      Galloway & Graham, for relator.

      Clark, Jones & Bryant, for respondent.
   Hooker, J.

The relator was sued in justice’s court in the city of Detroit. He appeared on the adjourned day, and stated that he had given a note for $61.50 in settlement of the account sued. This was denied by the plaintiff’s attorney, and the cause was adjourned to December 30th. Defendant not appearing upon December 30th, the cause was adjourned to December 33d, when defendant not appearing, judgment was rendered against him for $66 damages and $1.75 costs. The relator’s attorney learned of the rendition of the judgment upon the same day. On December 37th, that being the last of the five days allowed by the statute for an appeal, the relator appeared with his surety before the county clerk, and executed an appeal bond; the surety justifying before said officer. Relator then tendered the affidavit on appeal, and "bond, and the costs and fees provided by law, to the deputy clerk of the justice’s court, at the office of said clerk, hut he refused to receive the same, saying that it was no part of his business to receive appeal papers. On the morning of December 38th, at the opening of the justice’s court clerk’s office, relator made a similar tender to the clerk, who refused to receive the papers, upon the ground that the time for taking an appeal had passed, also claiming that its presentation at the office on the previous day was too late, because not done before 3:30 o’clock p. m., the closing hour of the office. Relator thereupon petitioned ■the circuit court for a mandamus to compel said clerk to receive and file said appeal. Upon hearing said application, the writ was denied upon the ground that the petitioner had the right to file his affidavit and bond on appeal with the justice who tried the case, or, in his absence, with some member of his family of suitable age at any time up to 13 o’clock at night on said 37th of December, but made no effort to do so, after his application to the deputy clerk. This denial occurred on January 3, 1906, and thereupon the relator applied to the circuit court for leave to take a special appeal, which was denied.

The present application was made in this court by petition, setting up the foregoing facts, and asking that the circuit judge be required to show cause why a peremptory mandamus from this court should not issue, requiring him to vacate the said orders, by him entered, affecting the petitioner’s rights of appeal from the judgment, and the petition contains a prayer for all other, further, or different orders to which the petitioner may appear entitled in the premises. Counsel have argued both questions in their briefs. Without deciding that litigants may not perfect their appeals from justices’ judgments, by filing the affidavits and bonds, and paying costs and fees required by law, in the office of the clerk, the court seems to have been of the opinion that the relator should have sought the-justice by whom, the judgment was rendered, and that, failing to do so, he was not entitled to any relief. . The petitioner’s practice is open to criticism.

The mandamus sought in the circuit court was denied, upon a hearing, and to review the order of that court, certiorari should have been asked under Sup. Ct. Rule 13. Instead of taking this course, counsel then applied to the circuit court for leave to take a special appeal. Mandamus is a proper writ by' which to review the latter order, but we have not encouraged the practice of asking a. mandamus to compel a circuit judge to vacate the order made in a mandamus case. Under the general law, the party who would appeal from a justice’s judgment must seek the justice, and file the necessary papers, etc., with him, if found, and with some member of the family, if he cannot be found. The statute regulating (to some extent) the practice in Detroit, is Act No. 475 of the Local Acts, of 1903. That act provides for four justices and one clerk, who is to act as clerk for all four justices. He is to have one or more deputies, who shall be under the control and direction of said clerk, and shall perform such duties as he shall direct. There is nothing in that act authorizing an appeal by filing appeal papers in any other way than that prescribed by the general act, except in the matter of the payment of costs, fees, etc. Section 33 provides:

“Before any affidavit for appeal * * * shall be served on any one of said justices, in addition to the fees allowed by law for making returns to an appeal * * * the entry fee * * * shall be paid to the said clerk.”

To effect an appeal, it was therefore necessary for relator to make payment to the clerk, and then present the affidavit and bond to the justice who tried the case, or, if he could not be found, leave it at his residence in compliance with the general law. 1 Comp. Laws, §§ 903, 904 et seq.

At the time that relator tendered the papers and the costs, etc., at the office of the clerk, it was past the closing hour, and the only deputy there was one who was not authorized to act. Relator had still several hours within which to find and pay the money to the clerk, and present his affidavit and bond to the justice. Apparently he made no effort to do so, and therefore he was not entitled to leave to take a special appeal under the general law. 1 Comp. Laws, § 909.

The writ is denied, with costs.

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


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    BRASSINGTON v. WALDRON.
    1. Equity — Practice—Bill—Averments Showing Jurisdiction —Amount in Controversy.
    Where there is nothing in the bill to show the amount in controversy. and an answer is filed claiming the benefit of a demurrer, followed by replication, and defendant does not plead the inadequacy of the amount in controversy, there is, nothing to warrant dismissal of the bill u.nder section 435,1 Comp. Laws, and the court should not dismiss upon that ground until the proofs show the inadequacy.
    2. Same — Answer—Demurrer Clause — Separate Hearing.
    The practice of a separate hearing on a demurrer clause in an answer is condemned.
    3. Injunction — Trespass—Irreparable Injury.
    A threatened trespass may be enjoined upon a showing of irreparable injury.
    Appeal from Oceana; Russell, J.
    Submitted February-27, 1906.
    (Docket No. 202.)
    Decided March 13, 1906.
    Bill by James Brassington and Ida Brassington against Hanley A. Waldron, Elvira S. Waldron, and Grove S. Waldron to enjoin a trespass. From a decree dismissing the bill for want of jurisdiction, complainants appeal.
    Reversed, and record remanded.

      James Brassington and F. F¡. Wetmore, for complainants.

      Skeels & Robinson and J. D. S. Hanson, for defendants.
   Hooker, J.

The bill of complaint in this cause did not show that the value of the property in controversy amounted to $100. An answer claiming the benefits of a demurrer was filed, followed by replication' The cause came on for hearing upon pleadings and proofs to be taken in open court, when the court, after refusing permission to amend, dismissed the bill upon the ground that it did not show jurisdiction under section 435 of the Compiled Laws. It will be noticed that the provision is that the court shall dismiss suits where the matter in dispute shall not exceed $100, etc. The statute does not make an allegation of amount in dispute jurisdictional, and in New York, from which State the statute was taken, it has been held that where the fact that the amount in dispute does not exceed $100 is not shown by the bill, the remedy of the defendant is not to demur, but to raise the jurisdictional question by plea or answer, though he may insist on the objection at the hearing, where it appears, either by pleadings or proofs, that the value in controversy is below $100. See Thomas v. McEwen, 11 Paige (N. Y.), 132.

In the present case there was nothing in the bill to show what the amount in controversy was. The defendant did not plead inadequacy of amount in controversy. Hence there was nothing to warrant a dismissal under the terms of the statute, and the court should not have made such an order, upon that ground, until the proofs showed such inadequacy. If it be claimed that this bill was dismissed upon the demurrer clause in the answer, the course taken was erroneous, as the proofs should have been taken. . See Lamb v. Jeffrey, 41 Mich. 719. In Zabel v. Harshman, 68 Mich. 272, the practice of a separate hearing on a demurrer clause in an answer is condemned.

It is suggested that the bill fails to state an equitable cause of action, and that therefore the court did not err in dismissing the bill, whatever reason he may have given. The bill alleges a threatened trespass, and irreparable injury, and prays an injunction. While ordinarily a trespass will not be enjoined, it may upon a showing of irreparable injury. As the bill was answered, and, if occasion requires, may be amended in matters of form and substance, it should not hav'e been dismissed upon such ground. See Campbell v. Kent Circuit Judge, 111 Mich. 575.

The decree is reversed, with costs of this court, and the record will be remanded for further proceedings.

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


author: Carpenter, C. J.

text:
    ATTORNEY GENERAL v. VAN BUREN CIRCUIT JUDGE.
    1. Intoxicating Liquors — Local Option — Order for Election.
    An order of the board of supervisors submitting the question of local option to the electors of the county on a particular date is sufficient under .Act No. 183, Pub. Acts 1899, § 6, where the date named is that of holding the annual township election, though not so designated in the order.
    2. Same — Recitals of Order.
    An order stating that it has been prayed for by not less than one-third of all the qualified electors of the county as shown by the poll lists is sufficient, though it does not state the number of names on the poll lists nor the number of electors signing the petition.
    3. Same — Resolution of Supervisors — Finality.
    Where a resolution of a board of supervisors to submit the question of local option is adopted in conformity to law, and the record thereof is regular, it is conclusive of the preliminary steps necessary to set the board in motion.
    Mandamus by John E. Bird, attorney general, to compel L. Burget Des Voignes, circuit judge of Van Burén county, to vacate an order denying a petition for an order to show cause why a mandamus should not issue to compel the board of supervisors to vacate an order submitting the question of prohibiting the sale of liquor under the local option law.
    Submitted March 8, 1906.
    (Calendar No. 21,608.)
    Writ denied March 13, 1906.
    • W. D. Fuller, for relator.

      B. M. Chase, for respondent.
   Carpenter, C. J.

Relator presented a petition to the respondent praying that the board of supervisors of Van Burén county be compelled by mandamus to vacate an ■order made by that board submitting to the electors of said county the question of prohibiting the sale of liquor under the local option law. Respondent refused to grant an order to show cause. This court is asked to compel him to grant that order.

The law requires (see Act No. 183, Pub. Acts 1899, § 6) “that such question shall be voted upon at the next annual township election.” The order in question directs the question to be voted upon April 2, 1906. That is in fact the date of the next annual township election, but the order fails to so state. It is scarcely necessary to say that this failure was altogether unimportant.

Relator complains because the order directing the submission of the question contained no recital of the number of names on the poll lists, or of the number of electors who signed the petition. It does state that—

“ Said election has been prayed for by the requisite number of electors, to wit, by not less than one-third of all the qualified electors of the county as shown by the transcripts of the poll lists and returns of the county canvassers of the last preceding general election for State officers held in said county.”

This complies with the statute and is sufficient.

It is also contended that the petitions signed by the electors were not in proper form; that the affidavits of posting were prematurely made, and that copies of the petitions were not in fact properly posted. The statute (see Act No. 183, Pub. Acts 1899, § 6) made the resolution of the board of supervisors, heretofore referred to, * ‘ final as to the sufficiency of the petitions and the requisite number of electors signing the same.” What is meant by the language that the determination shall be “final as to the sufficiency of the petitions ?” Do these words merely relate to the form of the petitions ? Do they mean that, though the order of the board determines conclusively that the petitions are in proper form, it leaves open to collateral attack the question of whether the preliminary steps essential to give jurisdiction have in fact been taken ? TA ask these questions is to suggest their proper answer. The board has no authority to determine the sufficiency of the petitions unless the preliminary steps essential to give it jurisdiction have in fact been taken. When the board determines that the petitions are sufficient to justify its action, it does determine that those essential preliminary steps have been taken. The grant of authority, then, to finally determine the sufficiency of the petitions, would be entirely nugatory unless by implication it conveyed authority to finally determine that the essential preliminary steps have in fact been taken. We cannot give final effect to the board’s determination that the petitions are sufficient and at the same time deny its jurisdiction to make such determination. Accordingly, this court has held:

This resolution being adopted in conformity to law, and the record thereof being regular, is conclusive of the preliminary steps necessary to set the board in motion.” Thomas v. Abbott, 105 Mich. 689.

Respondent was therefore right in refusing to issue the order to show cause.

Mandamus denied.

Me Alva v, Grant, Blair, Ostrander, Hooker, and Moore, JJ., concurred.