author: Bird, C. J.

text:
    GRAND TRUNK WESTERN RAILWAY CO v. FULLER.
    Estoppel — Sale by Life Tenant — Acceptance of Proceeds by Remaindermen — Election.
    Where defendants, remaindermen under the will of their grandfather, elected to ratify .the sale of the land by their father and accept the proceeds, they were estopped from afterwards reasserting their title to the land sold.
    Appeal from Calhoun; North, J.
    Submitted January 28, 1919.
    (Docket No. 49.)
    Decided April 3, 1919.
    Bill by the Grand Trunk Western Railway Company against Adna V. Fuller and another to enjoin an action of ejectment, and to remove a cloud on the title to land. From a decree for plaintiff, defendants appeal.
    Affirmed.

      Geer, Williams & Martin, for plaintiff.

      W. S. Powers, for defendants.
   Bird, C. J.

The Honorable Walter H. North, of the 37th judicial circuit, heard this cause and afterward filed the following opinion:

“This is a .suit in chancery brought for the purpose of restraining an ejectment suit instituted by the defendants against the plaintiff herein and also for the purpose of clearing the cloud from the title to the portion of the plaintiff’s right of way described in the bill of complaint filed in this cause. Proofs were taken in open court, and briefs have been filed by counsel for the respective parties. A careful consideration of the record made and the briefs filed, has brought me to the conclusion that the plaintiff herein is clearly entitled to the equitable relief sought, and to deprive the plaintiff of such relief would be to work a great injustice to the plaintiff and to enable the defendants to accomplish a wrong.
“A detailed recital of the facts and circumstances, shown by the proofs in the case, would serve no good purpose here, it being sufficient to indicate briefly the phases of the case which result in the above conclusion. ■ The defendants herein are the sons of Adee Vale Fuller, now deceased, and Sylvia Anna Fuller. Wm. E. Fuller, who was the father of Adee Vale Fuller, died leaving a will , by the terms of which Adee Vale Fuller took a life estate in á certain farm property of which the parcel involved in this suit is a part. The remainder in fee of said property was by the terms of said will left to the defendants in this case. On April 11, 1889, an order was made in the probate court of Calhoun county disallowing this will; and about this same time, the heirs of Wm. E. Fuller joined in a conveyance which appeared to invest in Adee Vale Fuller the full title to said farm. On the 5th of May, 1903, Adee Vale Fuller and his wife deeded to the plaintiff in this case a right of way across said farm property which contained about six acres of land, for a consideration of thirty-five hundred ($3,500) dollars. In October, 1915, Adee Vale Fuller died ; and in December of that year the defendants in this cause filed a bill in chancery against their mother, Sylvia Anna Fuller, wherein they sought to have the order of the probate court disallowing the will of their grandfather set aside and also to have their said mother enjoined from disposing of the land in question (which she held as the surviving joint tenant) or of the proceeds of the sale of the right of way to the plaintiff in this cause which proceeds were at that time alleged to be deposited in the Old National Bank of Battle Creek, at least in part.
“In their bill of complaint filed in that cause, the defendants in this case alleged ‘that said Grand Trunk Western Railroad Company was an innocent purchaser for value of said land described in paragraph No. 14 of this bill (being the right of way), and that your orators are not disposed to insist upon their adverse rights in said last mentioned lands as against said railroad company; but that your orators, on the contrary, are ready and willing, and hereby offer to voluntarily convey by quitclaim deed in which their respective wives will join as grantors to said railroad company * * * all of the right, title and interest of said complainants in and to said lands * * *.
“ ‘That your orators are informed and believe that the said defendant, Sylvia Anna Fuller, now has on deposit in the Old National Bank of Battle Creek, Michigan, all, or a portion of the proceeds, to wit: Thirty-five hundred ($3,500) dollars derived from said sale and conveyance to said railroad company of said lands described in paragraph “Fourteenth” hereof, and your orators hereby charge and aver that said moneys so derived from the sale of said lands, which were the property of your orators, belong to your orators and are now held by said defendant, Sylvia Anna Fuller, as a trust fund under an implied trust for the use and benefit of your orators; and your orators further show that said defendant, Sylvia Anna Fuller, threatens to dispose of said trust fund, in some manner unknown to your orators, for the purpose of placing the same beyond reach of your orators and depriving them of the same.’
“Subdivision No. 9 of the prayer for relief, asks: ‘that said funds arising from said sale to the Grand Trunk Western Railroad Company of lands described in paragraph No. 14 of this bill may be impressed with a trust in the hands of said defendant, Sylvia Anna Fuller, and that she may be required to come to an accounting with your orators therefor.’
“As a result of somewhat extensive negotiations between counsel for the respective parties and in which the parties themselves, to some extent, participated personally, this suit, brought by these sons against their mother, and others, was settled out of court. The testimony taken in the case now under consideration, clearly establishes that these negotiations for a settlement were upon the understanding between all parties concerned that the conveyance theretofore made by Adee Vale Fuller and Sylvia Anna Fuller of the right of way to the plaintiff in this cause was to stand and be considered a good and valid conveyance. It appears from the testimony in this case that that phase of the settlement was of particular consequence to Sylvia Anna Fuller because she feared that otherwise she might be held, or the estate of her husband might be held, responsible to the plaintiff in this cause for the defective title. The result of this settlement, under these conditions, was that the defendants in this cause secured very valuable property rights from their mother; and I think that transaction in and of itself is sufficient to not only render it highly inequitable, but to constitute an estoppel which prevents the defendants in this cause now taking a different position relative to the rights and title of the plaintiff herein to said right of way.
“A decree may, therefore, be taken, granting to the plaintiff in this case the injunctive relief prayed and also the relief sought in the third subdivision of the prayer for relief contained in the bill of complaint tiled in this cause.”

The position of defendants in the bill of complaint filed in their suit against their mother was clearly an election to accept the proceeds of the sale which the father had theretofore attempted to make of the premises rather than to insist upon the title thereto. This position had the effect of ratifying the act of the father and affirming the sale. Later, in the compromise settlement with their mother, they used this claim to the proceeds to obtain title to the farm without further litigation. These acts and declarations upon the part of defendants come within the general rule that:

“Where one having the right to accept or reject a transaction takes and retains a benefit thereunder, he becomes bound by the transaction and cannot avoid its obligations or effect by taking a position inconsistent therewith.” 16 Cyc. p. 787, and cases cited.

We agree with the chancellor that it would be manifestly inequitable to permit defendants now to take another and inconsistent position and one which would compel plaintiff to pay for the right of way a second time. The opinion of the chancellor so nearly reflects the views of the court upon the questions involved that it will be unnecessary to further consider them. The decree will be affirmed, with costs of both courts to the plaintiff.

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


source: Caselaw Access Project

license: Public Domain

text:
    MULLHOLLAND v. PATCH.
    1. Frauds, Statute of — Partnership in Real Estate Options— Oral Contracts — Validity.
    An oral copartnership' agreement to secure options on real estate and afterwards sell them is not void under the statute of frauds (3 Comp. Laws 1915, §§ 11977, 11983).

      2. Partnership — Accounting—Evidence — Sufficiency — Appeal and Error.
    In proceedings for a partnership accounting, based upon an oral agreement to secure and sell options on real estate, where the evidence was insufficient to establish the agreement, the decree of the court below dismissing the bill will be affirmed, on appeal, although erroneously based upon the ground that such agreement was in violation of the statute of frauds.
    See notes in 16 L. R. A. 745; 4 L. R. A. (N. S.) 427; 33 L. R. A. (N. S.) 883; L. R. A. 1915A, 521.
    Appeal from Oakland; Smith, J.
    Submitted January 31, 1919.
    (Docket No. 100.)
    Decided April 3, 1919.
    Bill by Homer G. Mullholland and another against Vernon Patch for a partnership accounting. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      Charles S. Matthews, for plaintiffs.

      Perry & Lynch, for defendant.
   Bird, C. J.

This bill was filed to obtain a copartnership accounting. Plaintiffs charge that they had an oral partnership agreement with defendant “to go out and get options on farms and sell them.” Defendant denies that any copartnership agreement existed between them. The conflicting claims of the parties were heard by the chancellor and he reached the conclusion that if there were a copartnership agreement it was an oral copartnership agreement to deal in real estate and therefore void under the holding of this court in Nester v. Sullivan, 147 Mich. 493 (9 L. R. A. [N. S.] 1106). The oral copartnership agreement involved in that case was held to be void under the statute of frauds, because the agreement not only contemplated but actually involved the holding of title to real estate. In this respect it differs from the present controversy. The agreement in the present case involved nothing more than the taking of options on real estate and afterwards selling the options, and, as a matter of fact, that was all that was done under the agreement in the one transaction out of which this controversy arose. If that were all that was contemplated by the claimed agreement it was not void under sections 11977 .and 11981, 3 Comp. Laws 1915. Carr v. Leavitt, 54 Mich. 540; Brittson v. Smith, 165 Mich. 222; McGavock v. Ducharme, 192 Mich. 98.

In the first case cited, in considering a similar agreement, it is said:

“This surely was not a contract ‘for the sale of any lands or any interest in lands’ within the meaning of the statute of frauds. (2 How Stat. [1st Ed.] § 6181.) That statute contemplates a transaction between parties contracting with each other as principals, and this was not such a transaction.” •

While we do not think the case should have been disposed of on the ground stated, we are impressed that the decree should be affirmed on the ground that the testimony does not make out a copartnership agreement. The substance of the talks out of which it is claimed the agreement arose, is that:

“We were to go out and get options on farms and sell them * * * We were to get options, work together to sell the farms and divide the profits equally.”

It is not claimed that the copartnership was given a name, or that it had any funds with which to purchase the options, or that there was any arrangement between the parties that any one of them should advance funds for that purpose. There appeared to be no agreement with reference to the losses, if any were incurred. Nothing appears as to the term for which it should continue. It had no place of business and no books were kept, and the only option taken was not taken in the name of a partnership but was taken in the name of defendant and paid for by him. Very few of the indicia, usually surrounding the relation of copartners were present. We think the testimony relied upon to establish the agreement was too meager and indefinite to accomplish its purpose. The most that can be said of the agreement is that plaintiff Stoney and defendant Patch were interested together in another enterprise and they agreed that if they could secure some options and dispose of them they would divide the profits, and afterward it is claimed that plaintiff Mullholland was taken into the deal.

The bill must be dismissed but without prejudice to the plaintiffs to take such steps as are consistent with the law and practice upon the law side of the court. The decree will be affirmed, with costs of both courts to the defendant.

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


text:
    McRAE v. MORGAN & WRIGHT.
    Master and Servant — Workmen’s Compensation Act — Course of Employment — Finding of Industrial Accident Board— Conclusiveness.
    In proceedings under the workmen’s compensation act for the death of plaintiff’s husband, where there was evidence to justify the finding of the industrial accident board that deceased’s hand was injured in the course of his employment, resulting in blood poisoning which caused his death, the award of compensation by the board will be affirmed.
    See Dotes in L. R. A. 1916A, 40, 232; L. R. A. 1917D, 114.
    Certiorari to Industrial Accident Board.
    Submitted January 23, 1919.
    (Docket No. 123.)
    Decided April 3, 1919.
    Elizabeth McRae presented her claim for compensation against Morgan & Wright for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Affirmed.

      Alexander & Cotter, for appellant.

      •George M. Clark, for appellee.
   Bird, C. J.

The claim of plaintiff is that her husband, John McRae, met with an accident while in defendant’s employ, which subsequently caused his death. The compensation board made the usual death award and defendant reviews the proceedings on the claim that the testimony does not show that McRae’s injury arose out of and in the course of his employment. The testimony discloses that John McRae was an old employee of defendant, having been in its employ nearly five years. That on Sunday, April 21st, he, with another employee, August Small, was engaged in cleaning a bull gear in the room where the rubber was washed. To clean the gear it was necessary to remove a sheet iron cover which enclosed it. While doing so, it is claimed McRae’s right hand was cut or scratched by the sharp edges of the cover. The witness, Small, testified that at about the time they finished removing the cover he noticed blood on McRae’s hand but did not remember which hand. After that they proceeded to clean the gear. McRae went to work on Monday morning but was obliged to leave before the working hours were over because of an intense headache. Tuesday morning he was unable to go to his work. His landlady testified that his hand was very badly swollen, and that he complained that it pained him. Later in the day, on Tuesday, he visited D.r. Ash, defendant’s physician, and afterwards called upon Dr. Thomas, and to both he expressed the opinion that his hand was rheumatic. Tuesday evening he left Detroit for Harbor Beach where he resided. Wednesday morning Dr. Armitage was called and found him suffering from septicemia. Red streaks were already running up his right arm. His temperature was 104. His right hand was very hot and badly swollen. The doctor testified these were symptoms of blood poisoning. The doctor also observe^ the scratch or abrasion between the second and third fingers of the right hand. Dr. Herrington, a surgeon from Bad Axe, was called in consultation and he agreed with Dr. Armitage that McRae was suffering with septicemia. All their efforts to stay the action of the poison failed. His left hand and arm soon became affected, and later in the week his lower limbs and finally his entire body became involved. On Sunday morning, April 28th, he died.

■ Counsel contends that there is no evidence in the record from which the board could find that his hand was scratched or cut by the sharp edges of the steel cover. The witness, Small, testified that the edges of the cover were thin and sharp, and that on a prior occasion he had cut his hand in attempting to remove it, and further that at about the time they finished removing the cover he saw blood on McRae’s hand and spoke to. him about it. Jennings, a fellow employee, testified that on Monday he saw McRae picking a cut or abrasion on the back of his hand, near, the center of his hand. Proof of the facts which we have narrated were sufficient to justify an inference that McRae’s hand was cut or scratched in the manner claimed and that in cleaning the gear it became infected and resulted in septicemia or blood poisoning.

A great many questions are raised and discussed by counsel which we think were entirely within the province of the board. It will suffice to say that the main facts narrated here were sufficient to bring the question of accident within the domain of fact and consequently within the jurisdiction of the board and it was for them to weigh and decide upon the conflict in the testimony and to say what inferences should be drawn therefrom. With this view, it will be unnecessary for us to consider in detail the other questions which defendant’s counsel have discussed.

The award is affirmed.

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


text:
    McINTYRE v. McINTYRE.
    1. Deeds — Validity —■ Voluntary Conveyance — Contribution — Services — Consideration.
    Where a brother and sister, with the mother and younger children, all worked together in various kinds of work and enterprises and accumulated two parcels of real estate, the title to one coming to the brother at the mother’s death, and the other being deeded to the sister by the brother, whether she was entitled to compensation for services, or whether her labor contributed to a common fund, held, sufficient to furnish a consideration for the conveyance.
    2. Trusts — Parol Trusts — Voluntary Conveyance — Statutes.
    In view of 3 Comp. Laws 1915, § 11571, an oral promise to reconvey land voluntarily conveyed is not enforceable as a parol trust, but if fraud entered into the transaction the statute will not apply.
    3. Judgment — Res Judicata — “Without Prejudice.”
    A decree dismissing a bill “without prejudice” left the issues open to be again litigated in a subsequent proceeding.
    Appeal from Berrien; North, J., presiding.
    Submitted January 21, 1919.
    (Docket No. 72.)
    Decided April 3, 1919.
    Bill by John McIntyre against Catherine McIntyre for' a reconveyance of certain real estate. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Harris S. Whitney, for plaintiff.

      I. W. Eiford, for defendant.
   Bird, C. J.

The bill in this case is filed by plaintiff to compel defendant to reconvey certain premises situate in Benton Harbor, which he conveyed to her in the year 1896. The reasons which he gives are:

(1) That the deed was without consideration.

(2) That defendant promised to reconvey wheii requested.

(3) That the deed was obtained by fraud.

(4) That he was mentally incompetent at the time.

The parties are brother and sister and neither were ever married. For several years after the father died, in 1874, they lived with their mother and two younger children. They all worked together, engaging in various kinds of work and enterprises. They were tenants on rented farms. Plaintiff was janitor of churches and school houses, while defendant and her mother ran a restaurant and kept boarders. Defendant also managed an ice cream parlor in which plaintiff was interested, and later plaintiff ran a saloon. During these years of activity they were industrious and saving and as a result accumulated two parcels of real estate, one of which was conveyed to the mother and the other to plaintiff. At the death of the mother, in 1893, defendant became the owner of the parcel held by the mother. In 1896, while plaintiff was engaged in the saloon business, and while in ill health and mentally incompetent as he claims, he conveyed the parcel held by him to defendant. A few years afterwards he demanded a reconveyance, but defendant refused to comply with his demand. It is defendant’s claim that plaintiff was indebted to her for services at the time he made the conveyance. After a hearing upon the merits the chancellor refused to grant plaintiff any relief and dismissed his bill.

1. Consideration. We are not persuaded that the conveyance to the sister was without consideration. The claim is made that he was indebted to her for services. Whether she was entitled to compensation for services or whether her labor was contributed to a common fund from which the real estate was purchased would make little difference, because if either were a fact it would furnish a consideration for the conveyance.

2. Promise to reconvey. Defendant denies that she ever promised to reconvey, and denies that the conveyance was made to her upon that condition. If the conveyance were a voluntary one and the promise was made as claimed, it being oral, was not enforceable as a parol trust. 3 Comp. Laws 1915, § 11571. Wipfler v. Wipfler, 153 Mich. 18 (16 L. R. A. [N. S.] 941); Judd v. Judd, 192 Mich. 198. If, however, fraud entered into the transaction the statute would not apply: Judd v. Judd, supra.

3 and 4. Was the deed obtained by fraud and was plaintiff mentally incompetent? There is so little of substance in the record to support the claim of fraud on the part of defendant in obtaining the deed, or that plaintiff was mentally incompetent at the time, that we shall refrain from entering into a discussion of these claims. Plaintiff’s testimony on these phases of the case is very weak and lacks corroboration and contains so many contradictions, and inconsistencies that it is not at all convincing.

5. Res adjudicata. Among the reasons given by the chancellor for denying plaintiff relief was that the issues involved were res adjudicata. While our views on the questions already considered dispose of the case, it may be well to consider this question, inasmuch' as' attention was given to it upon the oral argument and in the briefs of counsel. It appears that in the year 1900 plaintiff filed a bill in the same circuit court against the same party and praying for the same relief upon substantially the same state of facts. After a full hearing thereon a decree was made denying relief and dismissing plaintiff’s bill, but without prejudice.

In the present proceeding the chancellor construed the words “without prejudice” in the former decree as having little or no significance. We cannot agree with this view. This well known phrase was placed in the decree for some purpose, and the question is, What significance shall be given to it? It has been many times the subject of judicial construction in various forms of legal proceedings. In Seamster v. Blackstock, 83 Va. 232 (2 S. E. 36, 5 Am. St. Rep. 262), it was said:

“The words ‘without prejudice’ contained in a decree dismissing a bill, indicate a right or privilege to take further legal proceedings on the same subject, and show that the dismissal is not intended to be res adjudicata of the merits/’

In the case.of Newberry v. Ruffin, 102 Va. 73 (45 S. E. 733), it was said that:

“A dismissal of a suit without prejudice is no decision of the controversy on its merits, and leaves the whole subject of litigation as much open to another suit as if no suit had ever been brought.”

It was held in Cochran v. Couper, 2 Del. Ch. 27, that:

“The use of the term ‘without prejudice’ in a decree dismissing a bill without prejudice,, has reference to the effect and operation of the decree itself, and is equivalent to a permission to file another bill in the same cause of action.”

In Lang’s Heirs v. Waring, 25 Ala. 625 (60 Am. Dec. 533), it was held that:

“When a bill brought to obtain a divestiture of the legal title of the defendants to real property is dismissed without prejudice, the effect of the reservation is to prevent the decree from constituting a bar to another bill brought upon the same title.”

See, also, to the same effect, Foote v. Gibbs, 1 Gray (Mass.), 412; Burton v. Burton, 58 Vt. 414 (5 Atl. 281); Taylor v. Slater, 21 R. I. 104 (41 Atl. 1001); Ray v. Adden, 50 N. H. 82 (9 Am. Rep. 175); O’Keefe v. Irvington Real Estate Co., 87 Md. 196 (39 Atl. 428); Creighton v. Kerr, 20 Wall. (U. S.) 8; 8 Words & Phrases, p. 7507.

Giving to the words “without prejudice” the meaning which they ordinarily convey to the legal profession, we must hold that the former decree left the issues open to be again litigated in a subsequent proceeding.

The decree of the lower court will be affirmed, with costs of both courts to defendant.

OSTEANDEE, MOORE, STEERE, BEOOKE, FELLOWS,, Stone, and Kuhn, JJ., concurred.


text:
    SHARRAR v. IONIA CIRCUIT JUDGE.
    Venue — Change of Venue — Judges—Disqualification—Calling in Other Judge.
    Where a circuit judge, considering himself disqualified, called in another judge to hear an application for a continuance under 3 Comp. Laws 1915, § 12342, and the case was set for trial, the judge of an adjoining circuit was without jurisdiction to order a change of venue therein while said case was under said order.
    Mandamus by George E. Sharrar to compel Frank D. M. Davis, circuit judge of Ionia county, to vacate an order granting a change of venue.
    Submitted January 7, 1919.
    (Calendar No. 28,570.)
    Writ granted April 3, 1919.

      William A. Bahlke and Charles H. Goggin, for plaintiff.

      Lyon & Searl, for defendant.
   Bird, C. J.

In February, 1918, there was pending and at issue in tiie Gratiot circuit court two causes in which Clinton Nelson was plaintiff. George J. Sandel was defendant in one of them, and George E. Sharrar in the other. There was at that time pending in both cases applications for continuance. Judge Moinet of that circuit, being disqualified to sit in the cases by reason of his former connection therewith as counsel, called in Judge Collingwood of the Ingham circuit to hear the motions. They were heard and the cases ordered set down for trial on March 18th, subject to certain conditions, which are immaterial to this controversy. Subsequently the parties stipulated in open court that the cases should be set down for trial in the April term. The case of Nelson v. Sandel was then tried and disposed of, but the case of Nelson v. Sharrar was not taken up, owing to the fact that Judge Tappan, of the St. Clair circuit, was unable to remain longer on account of pressing work in his own circuit. Matters drifted along until July 13th, when counsel for plaintiff filed a petition in the Ionia circuit court, praying for change of venue in the case of Nelson v. Sharrar on the ground that Judge Moinet was disqualified to sit therein. The petition was heard hy Judge Davis of that circuit and subsequently a change. of venue therein was ordered to the county of Ionia.

Counsel for defendant contend that this order ought not to have been made, that Judge Davis had no jurisdiction to make the order, and they apply to this court for a writ of mandamus to compel him to set aside his order. Several reasons are assigned by counsel for this position, but the one we shall consider is as follows:

“Relator claims that under section 12342, 3 Comp. Laws 1915 (the judicature act), that all jurisdiction to transfer a cause on account of the disqualification of the judge of the circuit in which the cause is pending, is at an end when the judge of the circuit court in which such cause is pending, has called in any other judge to hear the case, who is not disqualified to sit in such case. His discretion has been exercised to any exclusion of the right of the parties.”

The wording of the section gives evidence that the legislature intended to invest a circuit judge with the discretion to either transfer the cause or to call in another judge when he is disqualified to act in a given case. The words “or the judge of the circuit in which such suit is pending' may call in any other judge not disqualified to sit in such case,” are new and were added by the judicature act with the evident purpose of opening the way for a substitute judge who is qualified to sit so that a trial may be had in the vicinage and avoid the added expense which is incurred by the home county and litigants where causes are transferred to another county. Both of these objects are desirable and where the change of venue is sought on the ground of the disqualification of the judge, an impartial trial can be had as well by calling in another judge as to remove the proceedings to another county.

The record shows that Judge Moinet considered himself disqualified and that he exercised his discretion to secure another judge, and did secure another judge on several occasions when, motions were to be heard and orders made. Both cases were set for trial on March 18th in the Gratiot circuit court. One was tried and the other would have been, except for the urgency of business in Judge Tappan’s home district. In view of the fact that Judge Moinet exercised his discretion under this section to call in another judge to hear the case, and the visiting judge set the case for trial in the Gratiot circuit court, it must be held that the case was still resting under this order when plaintiff’s petition was filed in the Ionia circuit court for a change of venue. Had counsel desired to file a motion in an adjoining circuit for a change of vénue, before doing so they should have taken some steps to have the order theretofore made by Judge Collingwood vacated and set aside. We are of the opinion that while this order was in force, no judge of an adjoining circuit had jurisdiction to order a change of venue therein.

The writ must issue as prayed.

Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, J., did not sit.


author: Ostrander, J.

text:
    MOYER v. PACKARD MOTOR CAR CO.
    1. Master and Servant — Workmen’s Compensation Act — Evidence — Inferences to be Drawn. '
    In proceedings under the workmen’s compensation law, in determining the ultimate facts, the industrial accident board may draw rational and natural inferences from the evidence.
    2. Same — Course op Employment — Evidence—Inferences.
    The conclusion of the industrial accident board that an employee was in the course of his employment when fatally injured in an elevator shaft, although he was forbidden the use of the elevator and there was no evidence that any duty called him to the elevator shaft líela, wholly unsupported by evidence.
    See notes in L. R. A. 1916A, 40, 232; L. R. A. 1917D, 114.
    Certiorari to Industrial Accident Board.
    Submitted January 21, 1919.
    (Docket No. 78.)
    Decided April 3, 1919.

      Mary Moyer presented her claim for compensation against the Packard Motor Car Company for the accidental death of her son in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed, and order vacated.

      Angelí, Bodman & Turner and Clifton G. Dyer, for appellant.

      Butzel & Butzel (Harry L. Weinstein, of counsel), for appellee.
   Ostrander, J.

Claimant’s decedent, Edward Moyer, was a night watchman employed by the defendant. He had been so employed for eight days. The buildings of defendant’s plant are numbered, one building, known as No. 15, was five stories high. In this building it was Moyer’s duty to act as night watchman of the third, fourth and fifth floors. In building No. 15 was an elevator, used for freight only, which ran from the first to the fifth floor. Moyer reported to the foreman of the watchmen at the front gate of the plant at about 5:30 o’clock on the morning of March 17. He was last seen by any one who gave testimony going from the front gate towards the building, which was about 100 yards, from the gate. It was his last-trip or round before quitting work. At some time between 5:32 and 5:35 o’clock, his body was found in the bottom of the elevator shaft, which was four feet below the level of the first floor. He died shortly afterwards.

Testimony as to the extent and exact nature of Moyer’s injuries is rather meager. A physician who saw him just before he died at the hospital to which he was immediately taken found, he says, a hemorrhage over one ear which, with other symptoms, led him to believe there was a fracture at the base of the skull and a broken arm. His examination was superficial as it was evident that the man was dying. An autopsy was performed, but not until the body had been embalmed, making it rigid. The doctor found a fracture of right forearm and of the right wrist, lacerated contusion of the right eye. He does not describe a fractured skull, and says he concluded the man died from internal injuries — “rupture of the intestines, something of that kind.”

The undisputed evidence shows that Moyer had no duties to perform on the first or second floors of the building. It was his duty to ascend by stairs to the third floor and to inspect to some extent the third, fourth and fifth floors, leaving a record of his presence there by punching or otherwise manipulating clocks or machines. No work was carried on during the night in question on the third, fourth or fifth floors. Work was carried on on the first floor. The elevator shaft was inclosed, there being a safety gate operating automatically at each floor and, in addition, fire doors made of heavy wood and covered with tin or some other metal. At about 5:30 o’clock, the night operator of the elevator, quitting work, left it on the first floor, locked, the fire doors on each of the floors being closed. Considerable effort was required to open and close the fire doors. At the time Moyer’s body was found, the elevator was at the fifth floor, and on each the second, third, fourth and fifth floors the fire doors were closed. On the first floor the fire doors were open and the automatic safety gate down and in place. Moyer had no right to use the elevator and, so far as is disclosed, never had used it to the knowledge of the foreman or any official of the defendant company. It was an electric elevator. Both the night and day operators of the elevator had keys which would unlock it or unlock the box which controlled it, but a piece of metal could be used to perform the same duty which the keys performed. The elevator was 10 by 20 feet in dimensions. At each, floor, as the elevator reached it, the safety gate was automatically lifted. There was then a space of 15 inches between the elevator and the fire door. The elevator was inspected at 4:30 o’clock on the afternoon of March 16, and again at 7 o’clock on the morning of the 17th after the accident;, and on both occasions found to be in perfect running1 order. Moyer had been instructed by the foreman of the plant watchmen not to touch or go upon the elevator under any circumstances. Other facts which, like some of those already recited, may excite speculation but support no definite conclusion as to how Moyer came to be injured, are the following: Under the bottom of the elevator there was suspended a telltale — a cord with a stick at the end of it. Its purpose was to warn any one who was looking into the shaft of the approach of the descending car. A portion of this was found in the pit with the body of Moyer. Mr. Moyer had trouble with his feet, and had been seen removing his shoes and putting talcum power in them or in his hose. A package of talcum powder was found on his body.

In the opinion of the industrial accident board, it is said, among other things:

“There is a lot of testimony, but the board is not able to figure out how this man fell to his death. He was there and about his work and was found in the elevator pit within a few minutes after the elevator man left the elevator. The theory of the applicant is that the deceased, in making his rounds on the morning in question, became aware of some unusual condition, and for some reason, endeavored to look into the elevator shaft, and in so doing, fell into the elevator pit and met his death. What took the elevator from the first floor to the fifth floor, we do not know. It may be possible that the elevator man is mistaken and that he did not leave the elevator at the first floor, although there is no testimony to the contrary.
“The man was a watchman. It was his business to keep watch or guard. The duties of a watchman necessarily call for a careful supervison of the building or locality to which he is assigned, and if something unusual occurs in any part of the building or in the elevator, or the elevator shaft, which is a part of the building, we believe it would be incumbent upon him to take proper measures to correct the improper condition. It was said, in Wishcaless v. Hammond, Standish & Co., 201 Mich. 192, that in a proceeding for workmen’s compensation on account of the death of an employee, where the facts proven necessitate a natural and reasonable inference that the accident happened while the employee was in the course of his employment, the employer, if he disputes the claim, has the' .burden of showing that the accident did not so occur.
“We do not know but that some workman other than the deceased employee used this elevator and left some of the doors open, and that the watchman noticed the improper condition, and in endeavoring to ascertain the cause of the same, met his death. The theories as to how the accident could happen are not of much benefit to us. Nobody knows just how it did happen, but the man evidently fell into the elevator shaft while in the course , of performing his duties, and we think that the evidence warrants the conclusion that the accident arose out of and in the course of the employment of the deceased. Where an employee is killed, and facts are proven, the natural and reasonable inference from which is that the accident happened while the deceased servant was engaged in his employment, the master has the burden of proving the contrary. Papinaw v. Railway Co., 189 Mich. 441.”

In determining the ultimate facts, the industrial accident board may draw rational and natural inferences from the evidence. The board concluded:

“(1) If something unusual occurs in any part of the building or in the elevator, or the elevator shaft, which is a part of the building, we believe it would be incumbent upon him (Moyer) to take proper measures to correct the improper condition.
“ (2) Nobody knows just how it did happen, but the man evidently fell into the elevator shaft while in the course of performing his duties, and we think that the evidence warrants the conclusion that the accident arose out of and in the course of the employment of the deceased.”

The evidence supports the conclusion that the man in some way got into the elevator shaft and fell to the bottom. But there is no evidence supporting the inference that his duty called him to the shaft or that he was performing any duty when he fell into it. The undisputed evidence shuts him out of the shaft upon every floor except, perhaps, indulging inference, the first floor, where the fire doors were found open and the safety gate in place. The elevator was in proper working order. Therefore, he could have gained entrance to the shaft on the first floor only by climbing over or rolling under the safety gate, or by opening the fire doors and attempting to use the elevator. Mr. Moyer had no duties to perform on the first floor of the building, and was forbidden to make use of the elevator.

The facts, material facts, have been stated. Any one so disposed may exercise imagination in using' them to construct a history of what occurred. But imagination so indulged will fail to connect the presence of Moyer in the shaft with the performance of any duty. The facts do not warrant the application of the principle relied upon by the board and stated in the Papinaw and the Wishcaless Cases. Wishcaless was operating the elevator in the shaft of which his body was found, and Papinaw was in a place where his duties required him to be.

We are of opinion that the conclusion of the board is wholly unsupported by evidence and that its order in the premises must, therefore, be vacated.

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


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    RUEL v. WASHBURNE.
    1. Bints and Notes — Consideration.
    Where defendant had agreed to purchase a farm from plaintiffs giving them back a mortgage for $13,000 with interest at 514, Per cent., but the plan was changed and defendant took the farm subject to a mortgage for $10,000 drawing 4 per cent, and executed notes for the $3,000, and also for the difference in interest between the 4 per cent, which plaintiffs were obligated to pay and the 5% per cent, which defendant had agreed to pay, there was a valid consideration for the notes.
    2. Same — Duress.
    If the negotiations accompanying such change may be said to amount to duress, it was immaterial, since there was no loss or injury to defendant.
    3. Same — Usury—Interest.
    Neither did the change in interest amount to usury, the notes covering the difference in interest between 4 per cent, and 5% per cent, on $10,000, and not on $3,000 as computed by defendant.
    4. Usury — Borrowed Money — Interest Rate.
    It is not a violation of the statute against usury to borrow money at 4 per cent, and loan it at 514 per cent.
    Error to Washtenaw; Sample, J.
    Submitted January 7, 1919.
    (Docket No. 6.)
    Decided April 3, 1919.
    . Assumpsit by James H. Ruel and another against Benjamin F. Washburne on certain promissory notes. Judgment for plaintiffs on a directed verdict. Defendant brings error.
    Affirmed.

      Price & Whiting and John Kalmhach, for appellant.

      Cavanaugh & Burke, for appellees.
   Bird, C. J.

After some preliminary negotiations plaintiffs agreed to sell to defendant their 500-acre farm in Washtenaw county for the sum of $20,000, upon the following terms: $7,000 to be paid down and a mortgage to be given thereon for $13,000 with interest at the rate of 514 per cent. Also an abstract showing clear title. After these terms were agreed to by the parties, defendant paid several installments on the cash payment, aggregating $3,000, and took possession of the farm. Subsequently, when they met in a Jackson hotel to close the deal, plaintiffs advised defendant that there was a mortgage on the premises of $10,000, bearing 4 per cent, interest, and instead of presenting him with a deed and mortgage for $13,-000, they presented a deed conveying the premises to him, subject to the- $10,000 mortgage, and obligating him to.make payment thereof; a mortgage for $3,000, and six promissory notes for $125 each, the notes to represent the difference between the four per cent, interest on the $10,000 and the 514 per cent, which he had agreed to pay, one note falling due each year thereafter. Defendant hesitated about executing the papers on account of the change in plan, but upon talking it over and having it explained to him that it was the same proposition in another form he consented to, and did, execute the papers after the last two notes had been indorsed, in accordance with his suggestion, that if he paid the $10,000- mortgage before they became due they should be canceled.

Defendant never made any payment on the notes and this suit in assumpsit was begun to enforce payment thereof. The defense of the lack of consideration, duress and usury was made in the trial court. There being no material disagreement on the facts, both parties requested a directed verdict. The trial court took the plaintiffs’ view of it and directed a verdict for them in the sum of $930.78. Defendant, on review in this court, discusses the same questions.

1. Consideration. Counsels’ argument is that the notes are without consideration because no benefit accrued to defendant nor was any disadvantage sustained by plaintiffs. In short, the contention of counsel is that plaintiffs having failed to close the deal in accordance with the original agreement, and defendant having consented to take title to the farm, subject to the existing mortgage, he is legally obligated to pay the four per cent, the mortgage calls for, and no more.

The consideration for the notes was defendant’s agreement to pay $20,000 for the farm. True, the original agreement was that he should give a $13,000 mortgage, but this was subsequently altered by agreement of the parties. The change did not affect the agreed consideration, but simply altered the manner of evidencing the unpaid portion of it. The substitute agreement called for the same consideration the original agreement did, no more and no less, and did not bind defendant to pay anything in addition to what he had already obligated himself to pay. But counsel say that when plaintiffs refused to close the deal in accordance with the original plan, and defendant purchased the farm subject to the mortgage, he was liable only for the rate of interest which the mortgage bore. This, undoubtedly, would be true if defendant had not agreed to the substitute plan. Plaintiffs had borrowed $10,000 for a long term at an advantageous rate of interest. That advantageous rate belonged to them. Just when and how defendant became entitled to the benefit of it is not shown. They did not agree to transfer it to him, nor did they. Therefore, we must conclude that he was not entitled to it. It is quite likely defendant might have insisted upon having the papers executed in accordance with the original agreement, but he did not, and admits that he agreed to the substitute plan. There can be no escape from the conclusion that if defendant agreed to give $20,000 for the farm, there was a valuable consideration for the notes.

2. Duress. In speaking of the combination of circumstances which produced the duress, counsel say in part:

“He was inexperienced and did not know his rights. They had $3,000 of his money. It was late at night in a strange place and there was no one to advise him, and all that Ruel would say to him was ‘What are you going to do about it?’ Ruel knew Washburne’s predicament and took advantage of it. The whole thing was timed and planned in such a way to give Washburne no chance to consider or take advice.”

We find nothing in the negotiations at the hotel which would deprive a normal man of the free exercise of his will. It is true, as counsel say, defendant had paid $3,000 on the deal, but he had possession of the farm and was in a more advantageous position to enforce his demands than were plaintiffs. He had agreed before going to the hotel to pay $7,000 in cash and obligate himself to pay $13,000 more, with interest at the rate of 5*4 per cent., and this is precisely what he did before leaving the hotel. If there were any duress defendant did not suffer by it. A duress which worked neither loss nor injury to defendant would not seem to be very material to this controversy.

3. Usury. Upon this subject counsel observe that:

“The scheme by which the plaintiffs sought to evade the statute of this State against usury is a very plausible and ingenious one and worthy of the consideration of every one who wishes to practice usury. The value of their equity in the farm was $10,000. For this they received $7,000 in cash, a mortgage for the balance of their equity of $3,000, carrying 5% per cent, interest per annum, and also notes representing 1% per cent, per annum on $10,000 which they owed, and which Washburne assumed, making in all $282.50 per annum which they were to receive for the use of $3,000, being practically 9% per cent, for the use of their money.”

The fallacy of this argument lies in the assumption that the reservation of interest was upon the basis of a $3,000 indebtedness rather than one of $13,000. Plaintiffs borrowed the $10,000 and gave their notes for it, and are still obligated to pay them. To assume that plaintiffs could not borrow money at 4 per cent, and loan it at 5% per cent, without violating the statute against usury, would be assuming something which does not exist. We think there is no merit in any one of these contentions.

The judgment of the trial court will be affirmed.

Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Ostrander, J., did not sit.


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    MARSHALL & ILSLEY BANK v. MOONEY.
    1. Pledges — Payment of Debt — Release of Lien.
    Where a note given to a bank by a corporation was indorsed by its directors, and defendant executed a note and mortgage as collateral security for his indorsement on the bank note, the lien created by said note and mortgage was released by a renewal of the bank note without defendant’s indorsement.

      2. Same — Contribution—Right of Coindobsers to Collateral.
    Although defendant’s coindorsers may have a right to demand of defendant that he contribute his share of the amount paid on said bank note, the doctrine of contribution would give them no legal title to, nor lien on, the note and mortgage.

      3. Same — Bills and Notes — Rule as to Collateral.
    The rule that where collateral security is furnished by the maker of a note, upon payment thereof by the sureties they would have a right to demand the collateral, does not apply where a third party furnishes security in aid of an indorsement.
    4. Parties — Real Party in Interest — Statutes.
    A bank to whom defendant gave a note and mortgage as security for his indorsement on a note given to it by a corporation of which he was a director, would not be a holder for value under 2 Comp. Laws 1915, § 6068, after its note was paid, and it therefore had no such interest in said note and mortgage as entitled it to bring foreclosure proceedings, since section 12353, 3 Comp. Laws 1915, commands that every action shall be prosecuted in the name of the real party in interest.
    Appeal from Van Burén; Des Voignes, J.
    Submitted January 29, 1919.
    (Docket No. 61.)
    Decided April 3, 1919.
    ' Bill by the Marshall & Ilsley Bank against Walter J. Mooney and another to foreclose a mortgage. Defendants filed a cross-bill asking for the cancellation of said mortgage. From a decree for plaintiff, defendants appeal.
    Reversed, and bill dismissed.

      Thomas J. Cavanaugh, for plaintiff.

      James E. Chandler (W. J. Barnard, of counsel), for defendants.
   Bird, C. J.

. The thing sought to be done in this proceeding is to foreclose a mortgage for $2,000 given by defendants to the plaintiff bank on certain real estate in Van Burén county. The circumstances attending the giving of the mortgage are that defendant Mooney was financially interested in the Milwaukee Western Cold Storage Company, a Wisconsin corporation, and was one of the directors thereof. In January, 1914, the company’s business needs required a loan of $12,-000. Application was made to the plaintiff bank. The bank was unwilling to make the loan unless the company’s paper was indorsed by the directors. This was assented to by the directors and the note was made by the company and indorsed by the six directors, including defendant Mooney. There is some testimony to the effect that the directors agreed that those not responsible should secure their indorsements to the bank. On account of this agreement, or for the purpose of restricting his liability, defendant Mooney gave to the bank the note and mortgage in question for the purpose of securing his indorsement. The $12,000 note became due on May 28, 1914, and was renewed. It was renewed again on September 28th, and again on January 28, 1915, defendant Mooney' signing each renewal with the other directors except the last one. The last renewal of January 28, 1915, he did not sign. Soon after the last renewal the company went into bankruptcy and later paid a dividend of 9.6%. After this dividend was deducted from the: amount of the note the other five directors, who indorsed the last renewal, paid the balance of the $12,000' note, and the same, together with defendants’ note: and mortgage, was surrendered to them. A demand! was then made upon Mooney for contribution but he did not respond. The five directors thereupon turned the note and mortgage over to the bank for collection and it commenced this foreclosure proceeding.

Defendants answered the bill and denied the right of the bank to foreclose the mortgage because the principal indebtedness to which the present note and mortgage was collateral had been paid and canceled, thereby releasing the lien, and because plaintiff had no such interest in the note as would permit it to recover thereon, and by way of cross-bill they ask to have their note and mortgage declared canceled and surrendered to them. These objections of defendants were overruled and relief upon their cross-bill was denied. A decree ordering a foreclosure and sale was made and defendants have appealed therefrom.

Defendants executed the note and mortgage in question to secure the plaintiff bank on defendant Mooney’s indorsement of the company’s note, dated January 28, 1914. Defendants’ note and mortgage bore the same date. The principal note was renewed on May 28th and again on September 28th, with six indorsers. On January 28th it was renewed again without defendant Mooney’s indorsement. The last note indorsed by Mooney was canceled and marked paid by plaintiff. It was paid by the note indorsed by the five directors and dated January. 28, 1915. Whether Mooney had knowledge of the last extension does not appear, but whether he did or not, the last note was finally paid by the five indorsers and the indebtedness and note canceled. In any view of the case this had the effect of releasing the lien created by defendants’ mortgage. 31 Cyc. p. 853, and cases; 22 Am. & "Eng. Enc. -Law, p. 881. The effect of making payment of the principal indebtedness released the lien and plaintiff no longer had any right to the possession of defendants’ collateral, and as between the bank and defendants it was the duty of the bank to surrender both note and mortgage to the defendants.

It is insisted in the brief that defendant’s coindorsers have equities in the note and mortgage, and that this is an attempt to enforce it for their benefit. It is quite possible they may’ have a right to demand of defendant Mooney that he contribute- his share of the amount paid on the principal indebtedness, but the doctrine of contribution would give them no legal title to nor lien on the note and mortgage. It must not be overlooked that this collateral was furnished to the payee by a surety and not by the maker. Had the note and mortgage in question been given by the maker of the note, upon payment thereof by the sureties, they would have a right to demand the col-laterals, but that rule does not apply where a third party furnishes security in aid of an indorsement. 32 Cyc. p. 294.

Plaintiff does not pose in the bill of complaint as assignee, nominal party or in a representative capacity, but it does pose as the real party in interest. By the testimony it is disclosed that plaintiff had neither equitable nor legal title to defendants’ note and mortgage when the action was commenced, or that it had any lien thereon. It would, therefore, seem that plaintiff has no such interest in the subject-matter of the controversy as would entitle it to relief.

Counsel argues that section 6092, 2 Comp. Laws 1915, authorizes the suit in plaintiff’s name. This section provides that:

“The holder of a negotiable instrument may sue thereon in his own name, and payment to him in due course discharges the instrument.”

The bank was a holder for value of defendants’ note to the extent of its lien. Section 6068, 2 Comp. Laws 1915. This section provides that:

“Where the holder has a Hen on the instrument, arising either from contract or by implication of law, he is deemed a holder for value to the extent of his lien.”

See, also, Graham v. Smith, 155 Mich. 65.

We think it would follow that after the indebtedness was paid and the lien discharged, the bank would not be a holder of the note within the meaning of the foregoing statute. We are of the opinion that under the provision of the judicature act (3 Comp. Laws 1915, § 12353), which commands that “every action shall be prosecuted in the name of the real •party in interest,” no relief can be granted to the plaintiff, and as the record does not call upon us to consider what the liabilities or equities, or rights of subrogation may be as between Mooney and his 'coindorsers, we conclude that the decree must be reversed and the bill dismissed. Defendants will not ■be entitled to a decree on their cross-bill against plaintiff for a cancellation and surrender of their note and mortgage, because it is apparent that all parties claiming an interest are not before the court. Defendants will recover their costs of both courts.

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


text:
    MARSHALL & ILSLEY BANK v. MOONEY.
    1. Appeal and Error — Findings of Court — Exceptions.
    In view of Circuit Court Rule No. 45, exceptions to certain statements found in the opinion of the court, which was neither in form nor substance a finding of ultimate facts, and no demand for findings of fact and law was made by either party, and no findings were made, present no question for consideration in the appellate court.
    2. Bills and Notes — Payment of Debt — Right of Action.
    Where defendant as maker gaye a note indorsed by himself and other directors of a corporation to secure cash or credit for said corporation, and said note was renewed without defendant’s indorsement and was afterwards paid by the other directors, defendant owed the bank nothing, either on account of the note' or otherwise, and it could not maintain an action at law thereon, since the evidence shows that it is paid.
    Error to Van Burén; Des Voignes, J.
    Submitted January 30, 1919.
    (Docket No. 62.)
    Decided April 3, 1919.

      Assumpsit by the Marshall & Ilsley Bank against Walter J. Mooney on a promissory note. Judgment for plaintiff. Defendant brings error.
    Reversed.

      James E. Chandler (W. J. Barnard, of counsel), for appellant.

      Thomas J. Cavanaugh, for appellee.
    Plaintiff, describing itself as a national banking corporation of Milwaukee, Wisconsin, declares that (1) defendant executed his promissory, note, dated January 28, 1914, payable to himself, for $3,000, due sixty days after date, with interest, and on the same day indorsed the said note and.made it payable in terms to plaintiff, (2) defendant has not paid the note, wherefore (3) plaintiff claims a judgment for $3,000 and interest and costs, etc. A copy of the note and indorsements is set up, and it appears that the note was indorsed, also, by Milwaukee Western Cold Storage Co., by W. J. Mooney, president, C. D. Cooley, secretary, and by W. A.'Hansen, Paul D. Durant, C. D. Cooley, C. W. Noyes, J. C. Gill, Otto L. Kuehn. _
    _ Defendant pleaded the general issue, giving notice that when the note in suit was given plaintiff was holder and owner of a note of the Milwaukee Western Cold Storage Company for $3,000, then due,.and requested defendant to give his note for a like áum to take the place of the said due note, which defendant did. The defendant was not liable on the said due note and gave the note in suit for the accommodation of plaintiff, neither party intending that defendant should be liable to pay the same. With slight variations in recital of facts, this notice is repeated as notice of a second and of a third defense.
    The cause coming on to be tried by the court, a judgment was.entered for the plaintiff for $537.88. The record contains the pleadings, a bill of exceptions, a copy of exceptions “to the findings of the circuit court,” and thirteen assignments of error. The certificate of the judge accompanying the bill of exceptions. does not indicate whether all or only a part of the testimony produced at the trial is incorporated therein. It does not appear that any demand for findings of fact and law was made by either party, and no findings were made. An opinion was delivered, and it appears in the record. It is in neither form nor substance a finding of ultimate facts. No amendments were requested. The exceptions referred to specify certain statements found in the opinion, but the grounds of exception are not stated. The assign-' ments of error, based upon the findings, are not more specific. The common form of the exceptions is illustrated by the following:
    “Defendant excepts to that part of the findings in which the circuit judge says:
    “ ‘The testimony indicates that this second note was made for the purpose of avoiding any rule relative to past due paper, and in the body of it refers to the original note of Mooney being held as collateral and not in any sense canceling the prior note.’ ”
    It is not suggested in either the exceptions or assignments of error that there was no testimony to support the conclusions of fact which are stated in the opinion and are excepted to nor that the facts found do not support the judgment.
    When plaintiff rested, defendant made the following motion:
    “Now, if _ your honor please, I want to move to dismiss. First, I want to move to strike out all the testimony offered in _ this case in behalf of plaintiff, the Marshall & Ilsley Bank, for the reason that it appears that at the time this suit was commenced, and for a long time prior thereto, so far as the bank was concerned, this note had been paid; that it was not the owner of the note, and had no interest in it whatever and was not in a position to institute or maintain a suit upon the note, the declaration not counting upon its ownership in trust for the other parties, but as the actual owner. I move to strike out the testimony for that reason to make the record.
    “I also move to dismiss this case for the reason that the testimony now affirmatively shows that there was no consideration for this note in question; that the note has been paid, so far as this case is concerned, and that the plaintiff bank has no right of action upon the note. For the further reason that the note was accommodation paper and there is no right of action upon it.”
    It was refused, and defendant excepted. Error is assigned upon the ruling.
    The declaration was filed March 23, 1916, the cause was brought on for trial March 22,1917, and the opinion of the judge was filed December 28, 1917. Judgment was rendered January 25, 1918. The exceptions were filed March 11, 1918, and the bill of exceptions was settled April 15, 1918. To none of the issues tendered by the pleadings is the testimony for plaintiff addressed. On the contrary, the testimony for plaintiff tends to prove that the directors of a certain corporation desired to obtain money or credit for that corporation from the plaintiff and for this purpose, by mutual agreement, one of them (the defendant) executed the note set out in the declaration as maker, indorsed it, as above set forth, and was joined as indorser by the company for which the money was secured and by the other directors. The bank accepted the note, giving cash or credit to the Milwaukee Western Cold Storage Company therefor, which company, as between the parties to the note, was the principal— primary — debtor, all other parties to the note being as to it, the company, sureties. When the note became due, another note for a like amount was given to the bank in its place. The renewal note was offered in evidence, but does not appear in the record. The testimony regarding it tends to prove, that it was made by the Milwaukee Western Cold Storage Company and indorsed by those who indorsed the first note, excepting only defendant. This note was paid, partly by a dividend in bankruptcy proceedings, the balance by the men who had indorsed it, five in number. The debt evidenced by the note in suit was thereby discharged. The plaintiff has now no interest in either note. Defendant owes it nothing on account of the note declared upon. The cause of action does not arise upon the note, but upon the payment of the debt by’the indorsers, and plaintiff seeks to recover, and recovered, hot the amount of the note declared upon, but the sum of money which defendant would have paid if, contributing equally with his co-obligors, the note had been paid at maturity, with interest, less the dividend referred to.
   Ostrander, J.

(after stating the facts). Errors assigned upon the so-called findings of the court will not be considered. They present no question for our consideration. The reasons why they present no question have been so many times stated that we content ourselves with a reference to Circuit Court Rule No. 45, the decisions collected in any annotated edition of the court rules, and to Oudersluys v. Carstens, 194 Mich. 521; Couple-Gear Freight Wheel Co. v. Railway Co., 196 Mich. 429, 431 et seq.; Federal Audit Co. v. Sawyer, 196 Mich. 566, and cases cited.

It remains to consider whether the refusal of the court to strike out the testimony for plaintiff and to dismiss the case (assignments of error 1 and 2) was reversible error. We are of opinion that it was. When plaintiff rested, there was no testimony tending to prove the case made by the declaration, and the motion to strike out the testimony should have been granted, or a judgment for defendant directed.

The objection is not merely to the form of the action.. It is addressed, in part, to the fact that the testimony for plaintiff proves that the note in suit is paid, that plaintiff’s debt, originally evidenced by the note, is paid, that defendant owes it nothing, either on account of the note or otherwise. We are not called upon to determine whether the alleged co-sureties of defendant who paid the debt, originally evidenced by the note in suit, may enforce from defendant contribution. The doctrine that money paid by a surety or a co-surety may be recovered in an action at law upon the implied promise of each surety to each to contribute their respective parts whenever equitable principles require contribution, if fully approved and applied here, obviously does not permit plaintiff to recover in this action upon this note.

The judgment is reversed, with costs of both courts to defendant.

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


author: Stone, J.

text:
    HARTLEY v. BOARD OF CANVASSERS OF BAY COUNTY.
    Elections — Ballot Boxes — Custody or Keys and Seal — Recount.
    Section 5, chap. 14, Act No. 203, Pub. Acts 1917, requiring that after the ballots are counted and placed in the ballot box it shall be securely sealed, and shall then be delivered to the township or city clerk, the key to be held by the chairman of the election board and the seal by one of the other inspectors, is mandatory, and -where not complied with an application for a recount of the ballots was properly denied.
    See note in 30 L. R. A. (N. S.) 602. ■

      Certiorari to Bay; Snow, J., presiding.
    Submitted March 31, 1919.
    (Calendar No. 28,752.)
    Decided April 3, 1919.
    Mandamus by Lee Hartley to compel the board of canvassers of Bay county to recount the ballots in the primary election for the nomination of a candidate for county road commissioner. William H. McCauley, an opposing candidate, was allowed to intervene. From an order denying the writ, plaintiff brings certiorari.
    Affirmed.

      W. B. Henry and R. H. Lane, for appellant.

      Stoddard & MeMillan, for appellee.

      Lewis Goumans, Jr., and Hubert J. Gaffney, for intervener.
   Stone, J.

This is certiorari to review the decision of the circuit judge denying relief on an application of the plaintiff for mandamus to require the defendants, constituting the board of county canvassers of Bay county, to reconvene and recount the votes cast in the city of Bay City at the primary election held therein on March 5, 1919, for the office of county road commissioner of said county and to reject certain uninitialed ballots.

The plaintiff and one William H. McCauley were the only candidates for said office on the Republican ticket at said primary election. Mr. McCauley having been declared nominated, the plaintiff, on March 8, 1919, filed his petition with the board of county canvassers for a recount of the votes in the city of Bay City, and as a result of such recount, on March 15th the said board certified that Mr. McCauley had received 2,872 votes and the plaintiff 2,851, making a majority for the former of 21 votes. Thereupon the plaintiff filed his petition in the circuit court for mandamus, setting up that certain uninitialed ballots had been counted by the said board, and that if such ballots had not been, counted the plaintiff would have a majority of 86 votes for said office.

The answer of the respondents, and of Mr. Mc-Cauley, who was allowed to intervene, admitted the counting of such uninitialed ballots, but contended that the ballot boxes, seals and keys were all returned to the city clerk or recorder of the city of Bay City on the night of election, and that the keys of said boxes were not retained by the chairmen of the several election boards and the seals by other inspectors of election, consequently that the plaintiff was not entitled to a recount at all.

It was conceded and was taken as a fact for the purpose of the hearing, that there were about 440 uninitialed ballots counted for Mr. McCauley, and 367 uninitialed ballots counted for the plaintiff, and that if such ballots were all thrown out it would have changed the result of said election. It was also conceded and taken as a fact on the hearing that the city recorder of Bay City had the custody of the ballot boxes, keys and seals from the night of the election up until the recount, except in three instances, which would not change the result of this case.

Section 5 of chapter 14 of Act No. 203, Pub. Acts 1917, is pertinent here; it is as follows:

"After the ballots of each kind are counted they shall, together with one tally sheet, be placed in the ballot box which shall be securely sealed in such manner that it cannot be' opened without breaking such seal. The ballot box shall then be delivered to the township or city clerk, but the keys of said ballot box shall be held by the chairman of the board and the election seal by one of the other inspectors of election.”

At the hearing of the mandamus case before Hon. E. A. Snow, circuit judge of Saginaw county, it was stipulated in open court by the parties that three propositions should be argued and left for the determination of the court:

(1) Does the fact that the provision of the law requiring the key, seal, and box containing the ballots to be retained by different members of the election inspectors of the various precincts, was not complied with, bar the right of the board of county canvassers to open the boxes and recount the ballots ?

(2) Is mandamus the proper remedy for relator to secure the relief prayed?

(3) Should ballots not initialed as required by law be counted?

The opinion of the learned circuit judge so clearly states his position and the law of the case that we insert the substance of it here:

4 “1. If the first question is answered in the affirmative, it disposes of the case, because the undisputed testimony is that in practically all of the precincts of the city of Bay City, the box, key and seal were all delivered to the city recorder on the night of the primary and that all three remained in his custody until the boxes were brought before the board of canvassers on the recount demanded by relator. In a very few instances the key was turned over to the recorder on March 10, following the primary held on March 5th. The seals in all the precincts were turned over to the recorder with the boxes the night of the primary. The boxes, keys and seals in all cases were brought before the board of canvassers by the recorder.
“Is this provision of law requiring the boxes, keys and seals to remain in the possession of the different members of the election inspectors mandatory, or is it merely directory? The former principle is contended for by the respondents and it is claimed that a failure to comply strictly with the law in this regard would prevent the opening of the boxes for a recount; the latter principle, viz.: that the law is directory, is contended for by the relator.
“Whether a statutory requirement is mandatory or directory depends upon its effect.
“(®) Does some substantial right depend on it? If a substantial right does depend on it, it is mandatory; if not, it is directory only.
“(6) Can injury result from ignoring it? If injury can result, it is mandatory; if no injury can result, it is directory only.
“(c) What was the purpose of the legislature in enacting the law? If the purpose was .simply to suggest a mode of procedure and to point out what procedure would be best, it must be considered only as directory. If, on the contrary, it was intended by the legislature that the mode of procedure provided for was the- only one that could be followed in giving effect to the general principles of the act, it must.be construed as mandatory.
“(d) Can the purpose of the legislature in enacting the law be accomplished in a manner other than that prescribed? If it can, the law is directory, if not, it is mandatory. ,
“(e) Will the same results be obtained by not following the provisions strictly? If they can, it is di-, rectory, but if they cannot be so obtained, it is mandatory.
“If we are able to make application of the above general principles to the instant case, it is easy to determine whether or not this provision of the election law should be held mandatory or directory.
(a) Does a substantial right depend upon keeping the key, seal and box in separate hands? In our opinion the substantial right to have the integrity of the ballot box preserved depends upon this very provision. If the return of the election inspectors is not to control it must be known that the ballots in the boxes when opened for recount are the same ballots placed in it by the election inspectors, and this fact cannot be known if opportunity, -has been afforded' to change them, and it goes without saying, that if one man possesses all the equipment necessary to get into the boxes and then to put the box back in substantially the same condition it was before he opened it, that the opportunity to change the ballots has been afforded.
“Making application then, of this, principle to the instant case, we must reach the conclusion that the law is mandatory.
“(b)1 Can injury result from ignoring this provision of the law? Without doubt, injury may result, because the opportunity is given to alter the condition of the ballots with but slight possibility of detection. Viewed from this standpoint, then, we must conclude the law to be mandatory.
“(c) The purpose of the legislature in making this provision of the law is apparent. There is less liability of three men being corrupt than there is of one, and with these three necessary articles being in the hands of three different individuals, in order to perpetrate a fraud, there must foe a conspiracy among them and a getting together to accomplish a dishonest and illegal result. The legislature must have had this purpose in mind and we are not disposed to thwart the will and intent of the legislature by holding that this provision of the law is without meaning. If the purpose of the legislature then is to govern and control the possession, it must be held that the law is mandatory and not merely directory.
“(d) Realizing the purpose of the law, can it be accomplished by failing to follow its provisions? The answer to this^ question brings us again to the irresistible conclusion that the law was 'made to prevent fraud, to secure honest election and to see that the elector had his vote counted as registered. We are unable to see how this result could be obtained if it made no difference who had the key, seal and box after the vote was counted. Controlled by this principle, then, we must again conclude that the law is mandatory.
“(e) Will the same result be obtained by not following the law as by following it? It may be and may not, and because it may not, giving construction to the law upon this principle, again we must say that the law cannot be regarded as simply directory.
“For the above reasons we are of the opinion that the provision of the law under consideration should be construed as mandatory from opening the boxes for a recount of the votes.
_ “This conclusion make's unnecessary the consideration of propositions 2 and 3, although we are of the opinion that the relator has sought the proper remedy, and that he is entitled to have thrown out the ballots not initialed as provided by law.
“The relief prayed for by relator is hereby denied with costs to the respondents.”

In our opinion, having in view the purpose and object of this statute, and the mischief to be remedied, its provisions are mandatory. Not only is the imperative word “shall” used throughout the section, but the closing sections of the act make a violation of this statute a misdemeanor. All of these things are aids or “earmarks” to aid us in arriving at a conclusion whether a given statute is mandatory or directory.

In support of the views expressed by the circuit judge we think the following cases in this court are in point: Andrews v. Otsego Probate Judge, 74 Mich. 278; Keith v. Wendt, 144 Mich. 49; Ritze v. Iron County Canvassers, 172 Mich. 423. We have not space to quote from these decisions.

Counsel for plaintiff have called our attention to Alward v. Board of Sup'rs of Oakland Co., 187 Mich. 573, and Baldwin v. Board of Sup’rs of Alger Co., 189 Mich. 372. To show that in those cases this court was .dealing with other and different statutes we need only call attention to the language of Justice Ostrander on pages 378 and 379 of the last-named case. We also quote the following language from said opinion on page 382:

“As has been stated, it was the law when the statute in question was passed that, unless it appeared that the ballots had been so secured, they could not be recounted; that the recounting boards were not authorized to ascertain whether, in fact, the statute precautions for the preservation of ballots having: been omitted, the original ballots had been preserved. What possible purpose could be subserved in empowering boards to subpoena witnesses, administer oaths, and take all necessary proceedings to insure a correct count of the votes, if, as theretofore, the evidences of the lack of statutory sealing of the boxes was conclusive of the right to recount the votes? It is plain, in nay opinion, that the legislature intended in this act to abolish the test, ‘Have the ballots been preserved as the law directs?’ and to substitute therefor the test, one of pure fact, ‘Have the ballots been, in fact, preserved notwithstanding the failure to observe the legal requirements for their preservation?’ ”

In a number of cases collected in the Ritze Case, we have held that the seal is a necessary part of the election equipment, and that the failure of the inspectors to properly seal the boxes deprives a defeated candidate of his right to a recount. Of what use is the seal if it is to'be held by the same officer who has the key and the box in his possession? The only use of the seal is that it is to be a check on the key and the box, and to render silent but unimpeachable evidence of the sanctity of the box. To assert that the seal may be given to the same officer who holds the key and the box, is equivalent to saying that there is no need of a seal at all, because it would be in the power of the officer possessing all of these articles to break the seal, open the box, change the ballots, relock the box, impress a new seal thereon, and nobody would be the wiser. It is no answer to say that an honest officer would not do this. Such things have occurred; and it was to avoid such and similar evils that the statute was enacted.

The order denying the writ of mandamus is affirmed, with costs against the plaintiff.

Bird, C. J., and Ostrander, Moore, Steere, Brooke, Fellows, and Kühn, JJ., concurred.


author: Fellows,'J.

text:
    PEOPLE v. OSBORN.
    1. Homicide — Evidence—Circumstantial Evidence — Sufficiency —Question for Jury.
    In a prosecution for murder, although the evidence was circumstantial, held, sufficient to take the case to the jury; and whether it established defendant’s guilt beyond a reasonable doubt was for the jury.
    2. Trial — Homicide—Conduct of Prosecutor — Curing Error.
    In a prosecution for murder, where the names of several witnesses, among them defendant’s wife, who could not be a witness against him under 3 Comp. Laws 1915, § 12555, had been placed on the information at the request of defendant’s counsel, and were subpoenaed-at the expense of the people, and the prosecutor asked one of the people’s witnesses whether defendant’s wife was in the court room, which the witness did not answer, and on objection by defendant’s attorney that she could not be a witness, the prosecutor responded that she could be for him, held, that the misconduct of the prosecutor was cured by the court’s informing the jury that the incident should have no influence upon their minds whatever.
    Error to Jackson; Parkinson, J.
    Submitted January 16, 1919.
    (Docket No. 116.)
    Decided April 3, 1919.
    Ezra Osborn was convicted of murder in the first degree, and sentenced to imprisonment for life in the State prison at Jackson.
    Affirmed.

      James J. Noon, for “appellant.

      Nathan E. Bailey, Prosecuting Attorney, and M. Grove Hatch, Assistant Prosecuting Attorney, for the people.
   Fellows,'J.

Defendant here reviews his conviction of the murder of one Roy Bassett. Bassett was a taxicab driver, whose home was Lansing. On the morning of September 25, 1916, his taxicab was found in the highway about three and one-half miles east of the city of Jackson, and on the road to Michigan Center. It was seen standing there about seven o’clock the evening before. On the 26th of September the •body of Bassett was found 30 or 40 feet from where the taxicab was found, with two bullet holes in it, one of the bullets having passed through the heart. The body apparently had been dragged to the place where it was found and covered with grass. About 40 or 50 feet away from the body was found a revolver with two empty cartridges, its caliber being of j¿he same size as the bullets found in the body.

Defendant here insists that the conviction should be reversed upon two grounds:

(1) That the evidence did not justify the submission of the case to the jury, and

(2) Prejudicial conduct on the part of the prosecuting attorney.

1. The evidence in the case was circumstantial. We cannot within the compass of this opinion attempt to detail it. It will suffice to say that there was testimony tending to show that about four o’clock Sunday afternoon, September 24th, at his garage in Lansing, Bassett was employed by a man to drive him from Lansing to some place about twelve miles north of Jackson; the testimony tends to show that defendant was such man. There was testimony tending to show Bassett and defendant together in Bassett’s taxicab on the way south from Lansing. There was testimony that they were seen about three miles north of Jackson, at which point they were accompanied by another man and a woman. There was testimony that about six o’clock in the evening defendant came in a taxicab to the residence of an acquaintance in the city of Jackson and got a drink of whiskey, the other occupants of the taxicab not getting out but urging defendant to hurry. There was testimony tending to show that a taxicab party bought gasoline at one of the stations in Jackson in the early evening, and while the salesman was unable to identify the members of the party, in a general way they corresponded with the party in Bassett’s machine, except that there was but one man and a woman besides the driver. There was testimony tending to show that the revolver found near Bassett’s body belonged .to defendant. In addition to this testimony there was also testimony given by the officers who were present soon after defendant’s arrest tending to show that in explaining his whereabouts on the day in question he made contradictory and false statements.

We are impressed that there was sufficient evidence to take the case to the jury. Whether it established defendant’s guilt beyond a reasonable doubt was for the jury. The charge was an exceptionally clear and fair one and is not complained of in any particular by defendant’s counsel.

2. It appears from the record that a week or more before the trial of defendant, by consent of the court and the prosecuting attorney, at the request of defendant’s attorney, the names of certain witnesses, among them that of defendant’s wife, were indorsed on the information and such witnesses were subpoenaed at the expense of the people. It is stated that this is the customary way in Jackson county of procuring ■defendant’s witnesses where he is without means as in the instant case. Mrs. Osborn did not sit with her husband during the trial but was among the spectators in the court .room. When the people’s case was near its close the sheriff was called and gave testimony on the part of the people. Upon his cross-examination defendant’s counsel developed the fact that the names of five witnesses had'been placed on the information at his request, three of whom were called by the people. When the sheriff left the stand the prosecuting attorney, without asking permission of defendant or his counsel or informing them of the purpose of recalling the witness, recalled to the stand one of the deputy sheriffs, and the following occurred:

“Q. Do you know the respondent’s wife?
“A. .Yes, sir.
“Q. Is she in the courtroom now?
“Mr. Noon: Wait a moment. I object to that and take an exception to it. If your honor please, I ask the court to instruct the jury that that is an incorrect statement, and ask him to reprimand the prosecutor for making it.
“Mr. Bailey: Her name is on the information.
“Mr.' Noon: That is a wholly unjustifiable statement; it is a very bad question, your honor. Your honor, I want to say to you, I am incensed at the prosecutor, with his experience, asking that kind of a question. The Supreme Court in People v. Trine [164 Mich. 1], has said that it is reversible error to make that kind of a statement. He knows it is immaterial; that she can’t be a witness. He knows as he sits in his chair it is for the purpose of prejudicing the jury.
“Mr. Bailey: She can be a witness for him.
“Mr. Noon: Mr. Bailey, that is wholly inexcusable; that is a bad, rash statement.
“Mr. Bailey: You are excited. .
“Mr. Noon: Yes, I am excited to think the prosecutor would make that kind of a statement. I am excited and angry both. You know it is wrong; you know as you sit in your chair it is wrong.
“Mr. Bailey: I don’t know any such a tiling. She is indorsed on the information as a witness.
“Mr. Noon: I take exception to that, if your honor please, and I say that is a very prejudicial statement.
“The Court: There should nothing take place in open court in reference to a wife by any inquiry whether the other party would consent to her being a witness. It should not be made in the presence of the jury.
“Mr. Noon: Exactly.
“The Court: Or either party be put in a position he must refuse in the presence of the jury. That has been said by the Supreme Court.
“Mr. Noon: Puts me in a position where he has no right to put me; he has no right to ask that question. He puts me in a position where I must object, which he has no right to do; it must be prejudicial. He can’t be condemned too severely. Mr. Bailey knows that is not right. I would not forget my oath of office enough to make that kind of a statement.
“Mr. Bailey: I take exception to that remark of Mr. Noon’s. He goes too far.
“Mr. Noon: I say I would not make that statement in the presence of the jury if I was the prosecuting attorney of this county. You say I am excited. I am, and chagrined to think you would make that kind of a statement.
“The Court: Gentlemen, I can only say that this matter should not have occurred in open court in the presence of the jury, and it should not influence your mind against the respondent at all because the question has been asked in open court, nor should any answer that might have been made to the question, if answer was made — if it was answered, it should have made no influence upon you in your determination of the questions in this case.
“Witness: I didn’t answer it.
“The Court: If it was not answered the asking of the question was not lawful, and the fact that it was asked should have no influence upon your mind whatever.”

Defendant made a motion for a new trial alleging among other reasons this transaction. The trial judge was of the opinion that the misconduct of the prosecutor was cured, and we have before us the question as to whether under the circumstances, and all of them, what was said and done, all of it, constituted reversible error. The custom in vogue in Jackson county of having the names of the defendant’s witnesses indorsed on the information, where he is without means to procure their attendance, does not comport with the usual practice under such circumstances. Usually an order is made that such witnesses be subpoenaed at public expense. The custom in vogue therefore created an unusual situation; the people would be expected to produce the wife of defendant, her name being indorsed on the information, but she could not be a witness against him without his consent. Section 12555, 3 Comp'. Laws 1915.

Cases are numerous in this court where we have had occasion to consider the conduct of counsel upon the trial of jury cases. We cannot undertake the review of all or any considerable portion of thetn. Where the conduct of counsel was prejudicial and was not or could not be cured by the trial judge we have reversed the cases. Where such conduct could be and was cured by the trial judge and the error was therefore without prejudice we have declined to disturb the judgments. Illustrative of the first class is People v. Treat, 77 Mich. 348. In that case,, the prosecuting attorney in his closing argument, after Judge Smith had addressed the jury in behalf of the defendant, stated what had been whispered to him by the complaining witness that Judge Smith had wanted his client to plead guilty. This court was of the opinion that the error was of such a character as that it was not and could not be cured by what was said by the trial judge, and it was there said:

“The effect of such statement was to influence the jury to believe not only that Treat was guilty, but to destroy entirely the force of the argument which his counsel had made in his- favor, and make it appear that he was rendering his client a merely perfunctory service; that while he was urging upon the jury the innocence of his client, the prisoner at the bar, he believed him to be guilty of the offense charged. No amount of caution that the jury should disregard such statement could prevent its having some weight with them.”

In People v. Fowler, 104 Mich. 449, the prosecuting attorney in Ms argument referred to the fact that Mrs. Peck, with whom defendant was charged with having committed adultery, had not been sworn. This court said :

“This language was entirely uncalled for. The prosecutor had no right thus to attempt to prejudice the respondent and the trial court should not have permitted these remarks, and, if made, should have directed the jury that they could not weigh that fact against the respondent

Counsel for the defendant relies most strenuously on the case of People v. Trine, 164 Mich. 1, and insists that it is absolutely controlling on the instant case. In that case the prosecuting attorney called defendant’s wife to the stand without first obtaining his consent. This compelled the defendant to object. The case was reversed. We have examined the record in that case for the purpose of having before us the facts of the case and the exact question there considered. We find the assignment of error there raising the question to be as follows:

“The court erred in not reprimanding the counsel for the people in calling to the' stand the witness, Mrs. Floyd Trine.”

This was the error there assigned and there considered. What was there said had reference to the record with the assignment of error there before the court. In that case the prosecutor was not reprimanded, and the jury not instructed to disregard the incident. In the case at bar the jury was told that the prosecutor’s conduct was “unlawful,” that it should not “influence your mind,” and the fact that the question was asked, “should have no influence upon your mind whatever.”

In the first of the cases considered this court was of the opinion that the error, growing out of the misconduct of counsel, could not be cured; in the last-cited cases no attempt was made to cure the error. Cases belonging to this class might be multiplied. Illustrative of cases where the error growing out of the misconduct of counsel has been held to be cured by the instructions of the trial judge are Gallant v. Miles, 200 Mich. 532; Goldman v. Railway, 200 Mich. 543; Merrill v. Tinkler, 160 Mich. 575; Wheeler v. Jenison, 120 Mich. 422; Devich v. Dick, 177 Mich. 173; Eberts v. Mt. Clemens Sugar Co., 182 Mich. 449. These eases might also be multiplied.. In many cases this court has taken occasion to seriously criticize counsel for improper conduct, but where the trial judge has carefully guarded the rights of the parties, and instructed the jury to disregard the misconduct and such misconduct, could be cured, and was cured by the trial court, this court has in such cases declined to reverse the case because counsel in the heat of the trial oversteps the bounds of proper conduct. We think the instant case falls within the latter class of cases. We must assume that the jury was made up of intelligent men, and that they understood the direction of the trial .judge to disregard the incident. The seriousness of the charge against the defendant was such as to prompt careful consideration of the instructions of the trial judge. Not only.were they told that they should disregard the incident, but in the charge the presumption of innocence was properly stated to them, and they were told that it must be overcome “by evidence in the case convincing you of the fact of guilt beyond a reasonable doubt.” The charge was a fair one. There was no request by defendant’s counsel that the trial court go farther in cautioning or instructing the jury than he had already done.

Finding no reversible error in the case the judgment will be affirmed.

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