author: Beooke, J.

text:
    ATTORNEY GENERAL v. BAIRLEY.
    1. Statutes — Construction—Penal Statutes Strictly Construed.
    The statute (1 Comp. Laws 1915, §§ 245-252) providing for the removal of a public officer for misconduct or neglect in office is in the nature of a penal statute and must be strictly construed.
    2. Same — Malfeasance in Office — Removal of Public Officer— Hearing Before Governor.
    Where charges of malfeasance in office were preferred against defendant sheriff of Monroe county under said statute, it was within the discretion of the governor to himself hear and determine the truth of the charges, and defendant’s contention that it was mandatory upon the governor to direct the attorney general or the prosecuting attorney of Monroe county to conduct an inquiry before the circuit court commissioner or judge of probate of said county cannot be sustained.
    3. Same — Construction—Powers of Governor — Constitutional Law.
    While the power so exercised by the governor is quasi judicial in character, it is limited in scope and must be exercised in strict compliance with the Constitution and laws bearing upon the question.
    4. Same — Legislative Question.
    That the right to the process of subpoena, secured to defendant under 1 Comp. Laws 1915, §§ 246, 247, 248, when the charges are referred to the attorney general or prosecuting attorney for investigation, is not provided for if the investigation is made personally by, the governor, under the provisions of section 245, is one for legislative rather than judicial attention.
    On power of court to review action of governor in removing officer, see note in 39 L. R. A. (N. S.) 788.
    Quo warranto by Alex. J. Groesbeck, attorney general, against Joseph J. Bairley to try the title to the office of sheriff of Monroe county.
    Submitted January 15, 1920.
    (Docket No. 65.)
    Judgment of ouster entered February 27, 1920.

      Alex. J. Groesbeek, in pro. per., Thomas G. Baillie and John E. Converse, Assistants Attorney General, for plaintiff.

      Willis Baldwin and Oliver J. Golden, for defendant.
    The action is quo warranto, to determine the title of the defendant to the office of sheriff of Monroe county. On April 11, 1919, charges were filed with the governor against defendant, alleging that he had been guilty of malfeasance in office in a number of particulars. Inter alia, that while acting as sheriff, he sold some 50 quarts of whiskey which had been placed in his custody by the State food and drug commissioner, Fred L. Woodworth. The petition prayed for removal of the defendant as sheriff of Monroe county, after investigation to be made by the governor in accordance with the statute. Immediately thereafter, the governor made an order, notifying defendant that a hearing would be held on said petition-at the executive office at Lansing, on April 18, 1919, beginning at 10 o’clock in the forenoon, at which the governor would preside and listen to the witnesses produced on behalf of the food and drug commissioner as well as any evidence which defendant might produce in defense. The order of the governor, together with a copy of the charges, were personally served on defendant, at Monroe, on the 11th day of April, and an affidavit of service filed in the executive office.
    On the 18th of April, 1919, the parties in interest appeared before the governor at the executive office, there being present the food and drug commissioner with his witnesses, the defendant in person, and represented by counsel. On that date, defendant, through his attorneys, asserted to the governor that they were hot prepared to go to a hearing in Lansing; that they had no witnesses present at the time except the defendant, and apparently on that date filed the following objections to the method of procedure:
    “1. The governor of the State of Michigan has no jurisdiction or authority to proceed with the examination of witnesses outside of Monroe county in this matter.
    “2. The governor of the State of Michigan has no authority or jurisdiction to examine the witnesses himself in this matter or to personally conduct the examination of witnesses in this matter.
    “3. Because the governor of the State of Michigan has no jurisdiction to require witnesses to be examined. in the city of Lansing in this matter, but such witnesses must be examined in the county of Monroe.
    “4. Because the governor of the State of Michigan has no jurisdiction to preside over the examination of witnesses sworn in this matter but the examination of witnesses herein must be presided over by the probate judge or the circuit court commissioner of-Monroe county, Michigan.
    “5. Because there was not served upon the defendant herein any copies of affidavit, or exhibits which were attached to the original petition filed with the governor or which were used and exhibited to the governor and in fact made a part of the charges before the governor.
    “6. Because it is unjust and inequitable to force the defendant to go to the city of Lansing and produce and keep his witnesses there for examination, the city of Lansing being about 100 miles distance from Monroe city, the place of residence of the defendant.
    “The defendant will not answer further except under protest and by order of the governor.”
    He thereafter filed an answer under protest in which he denied the material charges set forth in the petition.
    On the said 18th day of April, 1919, the governor adjourned the hearing to the 30th of April, 1919, at 10 o’clock in the forenoon, and on the adjourned day all of the parties again appeared, defendant being present in person and represented by counsel. Over the renewed protest of defendant, the hearing was had, evidence being received on behalf of the food and drug commissioner and defendant being heard in his own defense. No other witnesses were sworn on behalf of defendant. At the close of the testimony the following colloquy took place:

      “Governor Sleeper: Of course, I want to give the defendant every opportunity that he wants or can .have. I thought perhaps it was best to hold this case here, and not have it drag along and ultimately come before me any way and it is possible in the new case, I think perhaps it would.
    “On the other hand, I want you to have every opportunity of refuting or bringing such testimony in as you wish. If you feel as though there is any more evidence you would like to put in this case, we will adjourn this court until 9 o’clock tomorrow morning so that you may have witnesses here. Otherwise, X think we will have to proceed to close.

      “Mr. Baldwin: That would 'mean then that it is closed?

      “(governor Sleeper: Yes, unless you want to bring some witnesses here.

      “Mr. Baldwin: X don’t see how we could do anything like what we want.

      “Governor Sleeper: So far as the character of the sheriff is concerned, I assume it is good or he would not have been elected and it does not seem to be the main issue, and as I said, if there is any other evidence you wish to submit, why we will give you all the time that you would want to get- them here.

      “Mr. Baldwin: We could not get our witnesses and I would prefer then if that is the holding, that it is closed.

      “Governor Sleeper: No argument either one of you wish to make?

      “Mr. Baldwin: I told you I would like about fifteen minutes. ^

      “Governor Sleeper: You can have all you want.

      “Mr. Baldwin: To give my idea of the situation.

      “Governor Sleeper: Do you want any time, Mr. Baillie?

      “Mr. Baillie: Well, I thought if the case was to be argued, it might be advisable to have testimony available. All I care to say would be in response to what Mr. Baldwin would say and I waive the opening argument. There may be some things said I would like to answer.”
    Thereafter, counsel for defendant argued the matter before the governor, who, after causing the testimony to be transcribed and considering the same, issued, under the seal of the State, an order of removal against defendant and declared the office of sheriff of Monroe county to be vacant. The order of removal was duly served upon defendant on the 11th day of July, 1919, and on the following day the circuit judge for Monroe county, under the authority of section 2471, 1 Comp. Laws 1915, entered an order appointing and designating one George A. Huber (one of the coroners of said county) to perform the duties of sheriff until such time as a sheriff could be legally appointed, as provided by law. Defendant refused to recognize either the order of removal or the appointment of his successor but continued and still continues to occupy the office of the sheriff and perform the duties thereof. The situation being thus, the attorney general filed an information in this court in the nature of a quo warranto, to test the title to the office.
   Beooke, J.

(after stating the facts). The proceedings for removal are based on the statute (1 Comp. Laws 1915, § 245 et seg.). Section 245, after providing for the filing and service of charges with the governor, provides:

“But no such officer shall be removed for such misconduct or neglect unless charges thereof shall have been exhibited to the governor as above provided and a copy of the same served on such officer and an opportunity given him of being heard in Ms defense.”

Section 246 follows:

“Sec. 7. The governor may direct the attorney generalj or the prosecuting attorney of the county in which such officer may be, unless such prosecuting attorney be the officer charged, to conduct an inquiry into the charges made, and the said attorney general or such prosecuting attorney shall thereupon give at least eight days’ notice to the officer accused, of the time and place at which he will proceed to the examination of witnesses in relation to such charges, before some circuit court commissioner, or judge of probate, for the same county, and he shall also, at the time of giving such notice, serve on the officer accused a copy of such charges.”

The earlier portion of section 245 provides for removal by the governor “when he shall be satisfied from sufficient evidence submitted to him as hereinafter provided that such officer is incompetent to execute properly the duties of his office, or has been guilty of official misconduct,” etc. It is the contention of the defendant:

“(1) The statute under which proceedings were brought to oust defendant is in the nature of a penal statute and must be strictly construed.
“ (2) The provisions of the statute directing where and how the hearing shall be held are mandatory. The word 'may’ in the first line of section 246, 1 Comp. Laws 1915, means 'shall.’
“(3) The procedure must follow the course of the common law and conform to the jurisdictional requisites of a judicial proceeding.”

1. The first proposition advanced by the defendant is undoubtedly the law. Dullam v. Willson, 53 Mich. at page 416; Metevier v. Therrien, 80 Mich. 187. But this conclusion is not decisive of the question.

2. The real point in issue is raised by the second proposition of defendant to the effect that the word “may” in the first line of section 246 is mandatory and should be read as “shall.” Upon this point, we are unable to agree with the contention of counsel for the defendant. Reading the entire statute, sections 245 to 252 inclusive, it is our opinion that it was the legislative intent to permit the governor to himself hear and determine the truth of the charges preferred; or, in his discretion (under section 246), he may direct the attorney general or the prosecuting attorney to proceed with the examination of the witnesses in relation to such charges before the circuit court commissioner or judge of probate of the county in which the officer, against whom the charges are made, resides. If the prosecution is placed in the hands of the attorney general or the prosecuting attorney of the county, the statute must be strictly followed. Dullam v. Willson, supra; Clay v. Stuart, 74 Mich. at page 413.

But nowhere in the statute can we find any mandatory language, requiring the governor to direct the prosecution to be made by the attorney general or a prosecuting attorney, except in cases where charges are made against a prosecuting attorney (section 250), when it is made mandatory upon the governor to “direct the attorney general, or the prosecuting attorney of some county adjoining that in which the accused resides, or some attorney at law, to conduct the inquiry into such charges,” etc. The very fact that the language of the provision as to prosecuting attorneys in section 250 is riiandatory and that as to other officials (in section 246) is permissive, is to our minds persuasive of the legislative purpose. While such inquiries may be, and, according to experience in this State, usually are, conducted by the attorney general or by a prosecuting attorney under the direction of the governor, there is no sound reason, in our opinion, why the governor, if he so chooses, may not, under the provision of section 245, himself conduct the inquiry, provided all the rights of the defendant mentioned in said section are properly safeguarded.

3. If, by this contention, defendant means that the safeguards provided by the statute for the prevention of injustice to defendant must be strictly observed, he is undoubtedly right. But, while the power exercised by the governor is quasi judicial in character, it is limited in scope and must be exercised in strict compliance with the Constitution and laws bearing upon the question.

The principal argument in behalf of defendant is based upon the assertion that when reference is made under sections 246, 247 and 248, there is secured to defendant the right to the process of subpoena, which is not provided for if the investigation is made personally by the governor under the provision of section ■245. If there is any merit in this contention, it is a matter that should receive legislative rather than judicial attention.

We find in the record no denial of the sufficiency of the testimony offered before the governor in support of the charges made.

Judgment of ouster from the office of sheriff of Monroe county will follow.

Moore, C. J., and Steeke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    LAWRENCE v. BEATTIE.
    1. Action — Conversion—Parties—Judicature Act — Sheriffs.
    Under section 2, chap. 12, of the judicature act (3 Comp. Laws 1915, § 12353), providing that an action may be prosecuted in the name of the real party in interest, and that a trustee may sue in his own name without joining with him the party for whose benefit the action is brought, a declaration, in an action against the sheriff for unlawful conversion, in the name of plaintiff “for himself and as trustee,” is sufficient, although he held title to the property in trust for himself and others.
    2. Chattel Mortgages — Bill of Sale — Payment—Lien of MortGAGEJ2.
    In an action, against the sheriff for unlawful conversion, whether a bill of sale conveying to plaintiff certain grape juice, barrels, and a crop of grapes ready for harvest, the property in question, was absolute or by way of security merely, where plaintiff had advanced large sums of money to harvest the crop, convert it into juice, etc., in excess of what he had received, the property was not subject to execution for the debts of the vendor, although plaintiff had received the amount owing at the time the bill of sale was made.
    3. Samh — Nature of Property — Growing Crops.
    Where, immediately following the execution of the bill of sale, plaintiff went into actual possession of the growing crop, harvested it, manufactured it, and remained in possession thereof for more than a year, it is unimportant to determine whether or not said growing grapes are fructus naturales and incapable of being conveyed by a bill of sale or a lien created thereon by a chattel mortgage.
    4. Partnership — Names—Assumed Name — Registration.
    That plaintiff did business in the marketing of said grape juice product under an assumed company name, without complying with the provisions of 2 Comp. Laws 1915, §, 6349 et seq., would not preclude him from maintaining an action in his own name against the sheriff for unlawful conversion, since no contract of said company is involved in this action.
    5. Chattel Mortgages — Possession op Property — Registration— Renewal.
    Where plaintiff, immediately upon the execution of the bill of sale, took and continuously retained possession of the property, the fact that he failed to file a renewal of the ■instrument recorded as a chattel mortgage within the statutory period of one year is, under the statute (3 Comp. Laws 1915, § 11988), unimportant.
    6. Trial — Instructions—Miscarriage op Justice.

      Held, that the charge as a whole preserved all of the rights of the defendant and that the verdict as rendered gives no indication of miscarriage of justice.
    Error to Van Burén; Des Voignes (L. Burget), J.
    Submitted January 6, 1920.
    (Docket No. 2.)
    Decided February 27, 1920.
    Case by BJarold B. Lawrence against Gladstone R. Beattie, sheriff of Van Burén county, for an unlawful conversion of certain personal property. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Glenn E. Warner, for appellant.

      Thomas J. Cavanaugh, for appellee.
    Some time prior to the year 1913, one James Ingersoll Day was the owner of a farm and grape juice plant in Van Burén county. The farm was mortgaged; the mortgage had been foreclosed, but the equity of redemption had not expired. Day had gone into bankruptcy and one Netter had purchased from the trustee certain grape juice and barrels, then in the plant. In the year 1914, Day repurchased from Netter such juice and barrels as remained in the plant, the money necessary to make that purchase having' been obtained from plaintiff in this case. To secure said advancement and other money due from Day to plaintiff, Day executed to plaintiff a promissory note in the sum of $3,600, together with a bill of sale of the personal property in the plant. On September 18, 1914, there remained due on the obligation from Day to plaintiff the sum of $2,264. At that time, there was a large crop of grapes ready for harvesting on the Day farm. Day was without money or credit sufficient to enable him to harvest said crop and it was agreed between him and the plaintiff that the plaintiff should take a bill of sale o’f what remained of the Netter juice and barrels as well as of the grape crop then ready for harvesting. The consideration for this bill of sale was fixed at $4,314, it being estimated that the difference between the amount then due from Day to plaintiff and the amount named in the bill of sale would be necessary to harvest and juice the crop.
    Plaintiff, immediately after the execution of said bill of sale, took possession of the juice plant, made the necessary repairs, hired a large force of pickers, imported an expert from Chicago to operate the plant and reduced the 1914 crop to a commercial product. He bought a large quantity of barrels as well as two or three carloads of glass and during the year 1915, from time to time, marketed more or less of the product. Being without sufficient funds to carry on the enterprise alone, he received financial assistance from his uncle, Archie Lawrence, as well as from, one Wood, under an oral agreement with them that they should be repaid proportionately with himself from the proceeds of the juice. He continued in possession of the plant to the happening of the matters complained of in this case.
    On January 20, 1916, Benjamin F. J. Odell caused a writ of attachment to be issued out of the circuit court of Van Burén county against the goods and chattels of James Ingersoll Day. The attachment suit. resulted in a verdict in favor of Mr. Odell in the sum of $1,344. On June 27, 1916, an execution was issued on said judgment and defendant, Gladstone R. Beat-tie, the sheriff, on July 20, 1916, sold the personal property which he had seized by virtue of the writ of attachment. This personal property so seized and sold as the property of James Ingersoll Day was the same property mentioned in the bill of sale of September 18, 1914, between said Day and plaintiff, including such grape juice made from the 1914 crop as remained unsold. The sale was made over the protest of plaintiff that the property belonged to him. He thereupon brought this suit against the sheriff for unlawful conversion of said property, recovering, in the court below, a verdict in the sum of $750.
   Brooke, J.

(after stating the facts). The first contention of the appellant is that the court erred in refusing to sustain an objection to the introduction of any evidence and in denying the motion for a directed verdict because it was not alleged in the declaration for whom the plaintiff was acting as trustee, and the assignment of the claims of Archie Lawrence and W. A. Wood to the plaintiff was not alleged or proved.. The opening words of the declaration are, “Comes now Harold B. Lawrence, for himself and as trustee, plaintiff herein, and says” * * * Section 2, chapter 12, of the judicature act (3 Comp. Laws 1915, § 12353) provides:

“Every action shall be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute, may sue in his own name without joining with him the party for whose benefit the action is brought.”

The bill of sale (the foundation of plaintiff's title) is a straight out and out conveyance from James Ingersoll Day to plaintiff. The mere fact that as between himself and his uncle, Archie Lawrence, and W. A. Wood, there was an understanding that he held the title to the property in trust for himself and them did not preclude him from bringing the action as a real party in interest under the provisions of the act.

Appellant’s next contention is that—

‘‘Exhibit A was given to secure a debt of $2,264, which existed prior to September 18, 1914. From a portion of that security, plaintiff realized $5,042.87. When the levy was made, Day’s debt to plaintiff had been paid, plaintiff’s lien satisfied and the security released.”

While it is true plaintiff testified that if Day paid Mm the amount invested in the business he would have turned the same back to Day, yet, nevertheless, the transaction as evidenced by the contract was a plain sale of goods and chattels by one to another.

It is equally true that in the course of the dealings during 1915 plaintiff received upwards of $5,000 from the sale of the finished product, yet the investments made by him in the purchase of equipment, merchandise, and the payment .of labor were such that, at the time the levy was made, there had been invested by him $5,266.61 in excess of the amount received. Assuming, then, that the bill of sale was executed merely as security (and the contrary was found by the jury), there never was a time when plaintiff had been repaid the amount of his original loan and the necessary advancements.

Appellant’s next position is that growing grapes are fructus naturales, part of the real estate, and title thereof cannot be conveyed or a lien created thereon by a bill of sale or a chattel mortgage. We tbfnk it imimportant to determine whether growing grapes, ready for the harvesting, are fructus naturales or fruetus industriales because immediately following the execution of the bill of sale the plaintiff went into actual possession of the property, harvested the same, manufactured it and remained in possession thereof for upwards of a year thereafter.

It is contended by appellant that inasmuch as, during the year 1915, plaintiff did business in the marketing of the product under the name of the “Day Grape Juice Company” and that no compliance was made with Act No. 101 of the Public Acts of 1907 (2 Comp. Laws 1915, § 6849 et seq.), he is therefore precluded from maintaining this action. We are unable to see how the statute in question has anything to do with the case at bar. We are not considering a contract with the Day Grape Juice Company. No transfer of property was made to the Day Grape Juice Company. It had no interest so far as this record shows in the property in question. The bill of sale was made from Day to plaintiff; the property was taken by the sheriff from the plaintiff,; and plaintiff, in his own name, brings action for its unlawful conversion.

It appears from the record that the bill of sale of September 18, 1914, was recorded by plaintiff as a chattel mortgage, but that a renewal thereof, dated September 24, 1915, was filed January 22, 1916. The statute (section 11988, 3 Comp. Laws 1915) provides:

“Every mortgage or conveyance intended to operate as a mortgage of goods and chattels which shall hereafter be made which shall not be accompanied by an immediate delivery and followed by an actual and continued change of possession of the things mortgaged shall be absolutely void as against the creditors of the mortgagor,” etc.

Inasmuch as the record shows conclusively that immediately upon the execution of the bill of sale in question the plaintiff took and continuously retained possession of the property, the fact that he failed to file a renewal of the instrument within the statutory period of one year is, in our opinion, unimportant.

Many exceptions are' taken to the refusal of the .court to charge as requested and to the charge as given. We have examined the charge, carefully and are of the opinion that, taken as a whole, it preserved all of the rights of defendant and that the verdict, as renderéd, gives no indication of miscarriage of justice.

The judgment is affirmed.

Moore, C. J., and Steeee, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    NICKERSON v. NICKERSON.
    1. Specific Performance — Oral Contract to Convey — Indefiniteness — Performance—Equitable Relief.
    On. a bill by a son, after the father’s death, for the specific performance of a contract whereby the father agreed to convey, at some future time,. to plaintiff, certain farm land upon condition that the latter move upon the same, clear it, work it, and make a home upon it, said contract field, not too indefinite and uncertain to admit of equitable relief, where plaintiff has fully performed.
    2. Same — Contract—Proof—Sufficiency.
    Testimony field, sufficient to support the conclusion that said contract was made, and that the • father agreed to deed the land in his lifetime.
    3. Same — Contract to Will Enforceable in Equity.
    If the contract was that the father would leave the land to plaintiff in his will, equity would still afford relief in case of breach.
    Uncertainty as to time as affecting right to specific performance, see note in 2 L. R. A. (N. S.) 221.

      4. Same — Laches.
    Where plaintiff and the father were on good terms, and the father always recognized the land ■ as belonging to plaintiff, the latter was not guilty of laches in taking no steps for upwards of 40 years to compel the father to perform.
    5. Laches — Delay Alone Insufficient.
    Delay alone in enforcing a right does not necessarily indicate laches, since laches may only be predicated where delay is accompanied by' prejudice to the rights of others who claim adversely.
    6. Specific Performance — Issues—Equity—Foreign Jurisdiction.
    Defendant’s contention that if plaintiff was entitled to the Michigan land in dispute, defendant was equitably entitled to certain Ohio land belonging to the father’s estate, and that plaintiff should be compelled to quitclaim to defendant his interest in the Ohio land, held, not in issue in this case, hut should properly be settled in the courts of Ohio.
    Appeal from Ionia; Davis (Frank D. M.), J.
    Submitted January 14, 1920.
    (Docket No. 80.)
    Decided February 27, 1920.
    Bill by John Nickerson and another against Eva Nickerson for the specific performance of a land contract. From a decree for plaintiffs, defendant appeals.
    Affirmed.
    Hawley. & Eldred, for plaintiffs.

      Nichols & Loche, /. W. Barry, and J. C. Williamson, for defendant.
    Prior to 1874, Levi Nickerson lived in Morrow county, Ohio. He had two sons, John, the plaintiff, the elder, and Mack, the deceased husband of the defendant, the younger. In that year, Levi Nickerson purchased 160 acres of heavily timbered land in Campbell township, Ionia county, this State. Levi came to Michigan in the fall of 1874 with his younger son. Mack, then aged about 13 years, and spent the winter of ’74-’75 on the farm. He cut and cleared a small patch, variously estimated at from one-quarter of an acre to one acre, and told the neighbors that he intended to send his elder son, John, to Michigan to clear the place and make a home upon it, in which event he intended to give John a deed of it.
    In the following spring, 1875, John came to Michigan, entered into possession of the farm, and from that time to the present has been in full and undisputed occupancy of the same. He has cleared a large portion of it, erected good buildings and good fences thereon, and appears during the long period of upwards of 40 years to have treated the place as his own. In the meantime, the farm has increased rapidly in value until it is now said to be worth upwards of $100 per acre.
    Levi Nickerson, the father, continued to live on a farm he owned in Ohio consisting of 68% acres, his younger son, Mack, living with him. He died in October, 1916, never having delivered to plaintiff John the deed of the 160 acres in Ionia county. After his death, some negotiations were had between the plaintiff John and his brother, Mack, relative to a division of the estate, which, however, were never consummated.
    Prior to the death of Mack, he deeded to his wife, defendant Eva, his interest in the Ohio lands belonging to Levi as well as to the Michigan lands in question in this suit. After the deed of the Michigan lands was recorded and in April, 1918, plaintiffs filed the bill in this case by which, as amended, they pray for specific performance of an alleged oral contract for the conveyance by Levi to John of the 160~acre farm in Michigan. Mack Nickerson died in 1918 without issue and we are advised in the brief of counsel for appellee that since the determination of this cause in the court below, Eva Nickerson has likewise deceased; so that at the present time, plaintiff John Nickerson is the sole surviving heir at law of Levi.
    After a very full hearing in the court below, a decree was entered in conformity with the prayer of the bill, from which decree defendant Eva Nickerson, then living, perfected an appeal to this court.
   Brooke, J.

(after stating the facts). Appellant’s claims are set out as follows:

“1. That the contract alleged was indefinite and uncertain as to the time of the performance and the amount of improvements.
“2. That the proofs failed utterly to show a contract made and accepted, and that plaintiff’s possession and improvements were as consistent with his expectancy as an heir of his father as that he relied on any contract.
“3. That the entire testimony relative to the alleged contract consisted of casual declarations made by Levi Nickerson to strangers many years ago, and which are more consistent with the testamentary intent expressed by him than with the fact that he had made a contract with his son John Nickerson.
“4. That the entire proofs showed that Levi Nickerson intended to leave a farm at his death to each of his sons, and if under any circumstance the court finds that this amounted to a contract, before plaintiffs can be granted relief, they must quitclaim their title in the Ohio lands to the defendant.
“5. The plaintiffs were guilty of laches, _ having waited years after the death of Levi Nickerson and until Mack Nickerson died, and 44 years after making the alleged contract, and.having waited until the death of Mack Nickerson and Levi Nickerson, defendant’s evidence was destroyed.
“6. Plaintiffs are estopped by their conduct to now claim a right to specific performance.
“7. The court refused to permit witness Eva Nickerson, defendant, to testify to admissions of John Nickerson, the plaintiff, made in the presence of Mack Nickerson, defendant’s grantor.”

A careful examination of this rather voluminous record convinces us that Levi Nickerson, deceased father, bought the farm in. question with the intention of deeding it to plaintiff John at some indefinite time in the then future, upon condition that John should enter into possession thereof, clear it, work' it, and make* a home upon it. It is in evidence that about the year 1898, Levi Nickerson told one of the witnesses that he had executed a deed of the farm to John and would deliver it to him so soon as he had secured a divorce from his first wife, with whom he had had difficulty and from whom it appears he was finally divorced.

There appears to have been a very full performance on behalf of plaintiff John of his part of the contract. He left the home of his boyhood, in Ohio, came to Michigan and settled upon a piece of very heavily timbered land in a section where there were no roads, the farm being reached by a trail through the forest. With infinite labor, through a long period of more than 40 years, he cleared and improved the farm, erected buildings and fences thereon, and created a very large portion of its present value.

In the meantime, his father, Levi Nickerson, visited him occasionally and saw all that he did and himself never exercised nor attempted to exercise any acts of dominion over the farm. At intervals during the 40 years, John considered the advisability of selling the farm. Correspondence was had between him and his father, Levi, in the course of which language was used by Levi which very clearly indicates that he considered the farm in question was the property of John. In one letter, bearing date April 11, 1898, he said:

“Now you wanted to know what I was going to give you if you sold. I do not want anything from the place but if you sell you must have somewhere to put the money so you won’t lose it.”

Again, in a letter apparently written about 1915, he said:

“Now take good advice and stop right there and stay where you are. You have got plenty of land where you are. You have put 40 years to fix up and now you want to take the good of it. If you are going north, I want to stay there when you aré gone. Give up that north and come after me soon. John, give, north up; be contented where you are, and serve God.”

Referring to the contention that the contract sued upon is too indefinite and uncertain as to time of performance, it must be said that it is quite as definite as many of those as to which equitable relief has been granted by this court. Taft v. Taft, 73 Mich. 502; Brown v. Brown, 163 Mich. 337; Hogan v. Hogan, 187 Mich. 278; Friend v. Smith, 191 Mich. 99; Prendergast v. Prendergast, 206 Mich. 525.

It is asserted that the contract alleged was not proven and that the declarations of Levi Nickerson indicated testamentary intent only. We are of the opinion that the contrary appears from this record. A fair consideration of the testimony supports the conclusion that Levi agreed to deed the lands in quesr tion to John during his lifetime. But if it is assumed that the contract was that he should leave it to Mm in his will, nevertheless equity would afford relief in case of the breach. Howe v. Benedict, 176 Mich. 522.

It is claimed that the plaintiffs were guilty of laches in taking no steps for upwards of 40 years to compel the father, Levi, to perform his part of the contract. It should be remembered that the parties then in interest were father and son, that the utmost confidence and good feeling apparently existed between them. Levi never interfered with the possession of Ms son nor- interposed the slightest objections (beyond friendly advice) when John desired to sell. Besides, it is well settled that delay alone in enforcing a right does not necessarily indicate laches. Laches may only be predicated where delay is accompanied by prejudice to the rights of others who claim adversely. Humiston, Keeling & Co. v. Yore, 181 Mich. 629.

The testimony of Eva Nickerson, the defendant, was excluded. She offered to testify that after the death of Levi plaintiff John and her husband, Mack, negotiated for a settlement of their interests in Levi’s estate on the basis of Mack quitclaiming to John his interest in the Michigan lands and John quitclaiming his interest in the Ohio lands to Mack and the,payment of $2,000 to Mack. It would seem that this testimony was properly excluded as evidencing an abortive attempt to compromise a threatened litigation. But, assuming such testimony had been received, it could have no legal bearing on the exact point at issue.

It is strongly urged by counsel for appellant that plaintiffs, being in a court of equity, should be compelled to do equity — meaning that they should be compelled to quitclaim to defendant their interest in the Ohio lands. Upon this question, we are satisfied with the conclusion of the learned circuit judge:

“As to the claim by defendant that this court should determine that Mack was entitled to the Ohio land if John is to the Michigan land: I am not satisfied, simply because of any talk between the two sons after the death of Levi, that this court can settle his rights. It seems that his estate is being administered in Ohio, and if he has a claim against his father entitling his estate to hold the 68% acres his estate will have to settle that right in the courts of Ohio. The issue at this<,time is as to John’s right by virtue of the agreement with his father.”

The decree is affirmed.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    RUDOLPHI v. GILBERT.
    1. Courts — Probate Courts — Jurisdiction — Estates of Decedents — Title to Property.
    The probate court is without jurisdiction to try title to land or personal property, either against an administrator, claiming the same in his own right, or a stranger to the estate.
    2. Same — Motion to Dismiss,
    On a bill by a daughter of decedent against her brother, administrator of decedent’s estate, charging that by undue influence, etc., defendant got possession of certain property claimed to belong to the estate, defendant’s motion to dismiss on the ground that the probate court had jurisdiction, held, properly overruled.
    Appeal from Cass; Des Voignes (L. Burget), J.
    Submitted January 9, 1920.
    (Docket No. 48.)
    Decided February 27, 1920.
    Bill by Mamie Rudolphi against William I. Gilbert, individually and as administrator of the estate of Eugene B. Gilbert, deceased, for an accounting. From an order denying a motion to dismiss, defendant ap- • peals.
    Affirmed.

      Hendryx & Mosier, for plaintiff.

      Gore & Harvey, for defendant.
    Plaintiff and defendant are the only children and sole heirs at law of Eugene B. Gilbert, deceased. Defendant was duly appointed administrator of the estate of his father. On May 25, 1917, plaintiff filed a petition with the probate court in which she charged that a large amount of personal property, the property of the estate, had been fraudulently, surreptitiously and unlawfully appropriated by her brother, the defendant, and prayed that defendant be required, to add the property mentioned in the petition to the inventory of the estate, said property to be treated as a part of said estate and to be distributed in accordance with the statute.
    To this petition, the defendant filed an answer, denying the material averments of the petition, and in particular stating:
    “It is not true, as stated in paragraph three, that deceased at the time of his death, owned a large amount of property and was possessed of large sums of money, and that the proceeds thereof came into the hands of this respondent.”
    Upon the issue thus framed, the probate court took testimony and rendered a decision, dismissing plaintiff’s petition in the following language:
    "*.*.* I am unable to find that at the death of the testator, to wit, the 21st day of May, 1916, that he was the owner of any personal property, or that the executor had in his possession any property or effects belonging to said estate and not inventoried.”
    Thereafter,, plaintiff appealed from such determination to the circuit court, which appeal, upon her own motion, she caused to be dismissed some two months later.
    On March 5, 1918, she filed a' bill in the circuit court, said bill containing much of the matter set out in her petition in the probate court, but charging further that the defendant—
    “did by the use of artifices and wiles unduly influence his said father and by falsehood and otherwise prejudice plaintiff to her said father and unduly influenced the said Eugene B. Gilbert,”
    ■ — and thereby got possession of all the personal property specified in the bill of complaint. To this bill of complaint the defendant interposed a motion to dismiss, upon the following grounds:

      “1. It appears upon the face thereof that said bill of complaint does not state facts sufficient to constitute a cause of action.
    “2. It appears upon the face of said bill of complaint that the probate court in and for the county of Cass, State of Michigan, has jurisdiction of the matters and things stated in said bill of complaint and jurisdiction to grant the relief therein prayed for.
    “3. That the matters alleged in said bill of complaint relate to the settlement and distribution of the estate of Eugene B. Gilbert, deceased, and the probate court for said county of Cass has exclusive jurisdiction thereof.
    “4. The said bill of complaint sets forth no grounds of equity which will authorize the circuit court for the county of Cass to usurp the jurisdiction of said probate court and take jurisdiction of said estate and settle it to the exclusion of said probate court.
    “5. Said bill of complaint states no. fact, or facts, showing that the remedies of the probate court are inadequate or that the interposition of equity is necessary for any auxiliary purpose.
    “6. That the probate court of said county of Cass has exclusive jurisdiction of the matters set forth in said bill of complaint.
    “7. Said motion is based upon the files and records in the estate of Eugene B. Gilbert, deceased, now pending in the probate court for the county of Cass, Michigan; and upon the affidavit of William I. Gilbert, a copy whereof is hereto annexed to and made a part of said affidavit.”
    Upon a hearing, the court denied the motion, being of the opinion that the question of title to property being involved, the probate court was without jurisdiction in the premises. Leave having been granted by this court, defendant now reviews the order of the circuit judge denying his motion to dismiss.
   Brooke, J.

(after stating the facts). In the case of Davis v. McCamman, 165 Mich. 287, it is said:

“The probate court has exclusive jurisdiction over the settlement of the estates of deceased persons, except where its remedies are inadequate, or the interposition of equity is necessary for some auxiliary purpose. Nolan v. Garrison, 156 Mich. 397.”

The bill there charged the administrator with falsely and fraudulently crediting himself with various items of disbursement and appropriating such sums to his own personal use and benefit. The bill was held by this court to have been properly dismissed.

In the case of Graham v. Graham, 171 Mich. 307, the bill was filed by the administrator for the purpose of securing an accounting from certain defendants who had maintained business and fiduciary relations with the deceased. This court sustained the order overruling the demurrer and held that the court of chancery had jurisdiction.

In Brooks v. Hargrave, 179 Mich. 136, the bill was filed for the purpose of securing an accounting from the executor of the estate. After decree in favor of plaintiff in the court below, this court dismissed the bill of complaint, saying:

“There can be no question that the probate court assumed jurisdiction of the subject-matter in controversy when the will was admitted to probate and the defendant qualified as executor. It does not lose jurisdiction until the estate is finally closed. Having assumed jurisdiction, it has exclusive jurisdiction and no other court, save an appellate one which subsequently assumes to act in the matter, should proceed further when the priority of jurisdiction is called to its attention. E. T. Barnum Wire & Iron Works v. Speed, 59 Mich. 272.”

In the case of Powell v. Pennock, 181 Mich. 588, the bill was filed by heirs of the deceased against his widow, charging that the widow had fraudulently secured property from the deceased during his lifetime, to the amount of $35,000. A démurrer sustained by the court below was overruled in this court, the court saying:

“In this State the probate courts have exclusive jurisdiction over the settlement of estates of deceased persons, except when their remedies are inadequate or the interposition of equity is necessary for some auxiliary purpose (Nolan v. Garrison, 156 Mich. 397; Davis v. McCamman, 165 Mich. 287; In re McNamara’s Estate, 167 Mich. 406; Graham, v. Graham, 171 Mich. 307; Brooks v. Hargrave, 179 Mich. 136). * * *

“Where fiduciary relations exist or fraud is charged, courts of equity have jurisdiction to compel an accounting.”

In the earlier cáse of Mitchell v. Bay Probate Judge, 155 Mich. 550, the situation was practically the same as in the case at bar. There, relator being dissatisfied with the inventory made by the administratrix, filed a petition in the probate court, alleging upon information and belief that certain real and personal property specifically described should be inventoried. The answer denied the petition. Upon the hearing in the probate court, it was found that the question of title was involved, that the court was without jurisdiction to try the same, and it was ordered that on the filing of a written statement by the administratrix the petition be dismissed without prejudice. This court was asked for a mandamus to compel the probate judge to set aside said order. We then said:

“The record shows conclusively, and, indeed, the petition indicates, that the title to the estate is disputed as to all of the items which relator specified, and that the administratrix claims title herself to some of them, and is disposed to doubt the title of the estate to others which are claimed by third persons. * * * .It is manifest that the probate court is not a proper place to try title to land or to personal property, either against an administrator claiming the same in his own right or a stranger to the estate.”

—and the writ was denied.

From an examination of the record, it seems clear that the title to the several items of property mentioned in plaintiffs petition and in her bill of complaint is in dispute, she .claiming that said property belonged to the estate of her father while the defendant claims that it belongs to himself. Under the allegations in the bill, charging the defendant with having become possessed of the same through fraud, and after a review of all the authorities touching the question, we are of the opinion that the learned circuit judge properly refused to dismiss the bill.

The decree overruling the motion to dismiss is affirmed, and the defendant will have leave to answer in accordance with the rule.

Moore, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    VANDERVLIET v. THE STANDARD ACCIDENT INSURANCE CO.
    1. Insurance' — Indemnity Insurance — Notice — Sufficiency — General Agent — What Constitutes.
    In an action on an indemnity policy of insurance, authority of- an agency to appoint subagents and to countersign the policy as general agent, held, sufficient to constitute it a “duly authorized agent” within the meaning of the terms of the policy requiring immediate written notice of an accident to be given to the home office or to its “duly authorized agent.”
    2. Same — Authority to Waive Written Notice.
    An agent authorized to receive notice under the terms of the policy, held, to have power to waive a written notice and to-agree to take care of the matter himself.

      3. Same — ¿Parties—Real Party in Interest.
    That plaintiff secured money from a bonding company with which to pay a judgment secured against him and his partner in an action for an accident covered by defendant’s policy, and orally agreed to repay same out of any recovery he might have against the defendant on its policy, held, not to deprive him of his legal interest in said policy, there being no assignment of same.
    4. Same — Notice—Waiver—Estoppel—Trial—Question por Jury.
    Where the accident for which indemnity is sued upon„occurred on October 29th, and on December 18th the home office had actual notice thereof, and sent a representative to investigate, in company with plaintiff, without denying liability on the ground of failure to give the notice earlier, the trial, court was not in error in submitting to the jury the question as to whether defendant had waived its right to an earlier notice.
    Error to Kalamazoo; Weimer (George V.), J.
    Submitted January 27, 1920.
    (Docket No. 109.)
    Decided February 27, 1920.
    Assumpsit by Cornelius Vandervliet, individually and as surviving partner and assignee of Kichard Heystek, against The Standard Accident Insurance Company of Detroit, Michigan, for the amount of a policy of indemnity insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Keena, ,Lightner, Oxtoby & Hanley, for appellant.

      Jackson, Fitzgerald & Balm, for appellee.
    Prior to June 6, 1914, Heystek and Vandervliet had entered into a contract with the city of Flint to pave certain streets, in said city. On said June 6th, they secured from defendant the indemnity policy of insurance 'sued upon. By virtue of this policy, defendant agreed to indemnify plaintiffs against loss imposed by law upon them on account of bodily injuries accidentally sustained by members of the general pub-lie by reason of the prosecution of plaintiffs’contract with the city of Flint. Heystek and Vandervliet had furnished to the city of Flint a bond, executed by the Chicago Bonding Company, indemnifying the city of Flint against any loss from any judgments that might be' recovered against the city from the negligence of Heystek and Vandervliet.
    On October 29, 1914, two men were injured through an accidental collision with one of the vehicles of Heystek and Vandervliet, used on the paving job. These two men brought action against the city of Flint, secured judgments against the city, which, after affirmance on appeal to this, court, were paid by the city. The city, in turn, sued Heystek and Vandervliet over and secured a judgment for the amount of its expenditures in the premises.
    It appears from the record at this time Heystek was insolvent and Vandervliet had not sufficient means with which to satisfy the judgment of the city. An arrangement was thereupon made, between Vandervliet and the Chicago Bonding Company, which was liable to the city on its bond, by the terms of which the Chicago Bonding Company advanced or loaned to Vandervliet a sum sufficient to satisfy the city’s judgment. No assignment of the interest of Heystek and Vandervliet in the bond of the defendant was made to the Chicago Bonding Company, but it was orally agreed that suit should be commenced thereon by Vandervliet, who had secured an assignment of Heystek’s interest therein, and, in the event of recovery, the sum so recovered should be paid to the Chicago Bonding Company in liquidation of the advance made by said bonding company to him.
    This suit was brought on the policy of indemnity issued by defendant in accordance with said agreement. Plea was the general issue, with notice that defendant would show that plaintiff failed to give notice of the accident as required by the policy, which read:
    “The assured upon the occurrence of an accident, shall give immediate written notice thereof, with the fullest information obtainable to the company, at its home office, Detroit, Michigan, or its duly authorized agent.”
    There was no dispute between the parties as to the amount involved, and plaintiff recovered judgment in the sum of $1,956.71.
   Brooke, J.

(after stating the facts). Defendant reviews the case in this court, grouping Ms assignments of error under the following heads:

“(1) The plaintiff was not entitled to a verdict, because he had not complied with the terms of the policy, with reference to notice of the accident.
“(2) The - Chicago Bonding Company is the real party in interest, and the court erred in permitting a recovery in this action by the plaintiff.
“(3) The court erred in permitting a recovery by plaintiff, on the theory of waiver or estoppel.”

1. The language of the policy with reference to notice has already been quoted. The policy itself purports to be signed by the defendant, “The Standard Accident Insurance Company, J. S. Heaton, Secretary,” and countersigned, “Flint Insurance Agency, G-Agt. (Agent) by Allen S. Beach, Secy.” It is undisputed upon this record that no written notice was given by the assured to either the defendant or to its duly authorized agent. It is the claim of the plaintiff, and testimony was introduced tending to support that claim, that at the time the policy was issued it was delivered to Richard Heystek, one of the partners engaged in the paving contract, by Mr. Beach. Mr. Heystek testified in part:

“* * * At the time he gave me the policy, he got some blanks for damages, you know, to fill them in, and I told Mr. Beach I ain’t got any good education, I couldn’t read, and hardly write nothing, and, well, Mr. Beach, he said, well, he would keep them right here and you come in the office and you make your home right here' in the office and if something happens, I take eare of you, I take care of the whole thing. Mr. Beach kept the blank notice in his office.”

This witness further testified that on the morning following the accident,—

“* * * I went to Mr. Beach and told him that at half-past ten at night there was a buggy coming through with two men and ran into a brick wagon, and one broke his arm and one hurt his back, and I told Mr. Beach all about it and he said he would take care of it. This was the next morning after the accident. A couple of days after that, I saw Mr. Beach. He told me he looked up some witnesses. He had the policeman and he saw a man from the D. U. R., a flagman, I guess, and he told me he had talked with those witnesses. There was somebody else with Mr. Beach at that time, but I don’t know who it was. This was a couple of days after the accident.”

The accident happened on the 29th of October, and it was the claim of the defendant that it received no notice, either directly at its home office or through Mr. Beach, its agent, until about the middle of December. Mr. Beach, testifying with reference to the policy and his authority, said:

“The policy upon which this suit was brought was issued by the company and mailed to me and countersigned by me as agent and delivered. That signature is the signature of the agency there. It was my custom to sign that way. That signature meant general agent. The meaning of that was at that time I was handling a little more territory than the local city of Flint. I was supposed to take care of the writing of business and placing of it in one or two counties outside. I did not have any agents in other counties. I could have but did not. At the time the arrangement was made, I think I was to cover Shiawassee, Livingston and Lapeer counties.”

Upon the point now under discussion, it is the defendant’s claim that Mr. Beach was a mere soliciting agent and was not “its duly authorized agent” for the purpose of receiving notice of an accident, within the terms of the policy contract. If Beach was such an agent as was entitled to receive notice under the terms of the contract (and the learned circuit judge so charged the jury), he undoubtedly had the right to waive a written notice and to agree to take care of the matter himself, as, according to the testimony of Heystek, he did agree. The policy was countersigned by Beach, as general agent. His authority extended beyond the city of Flint and apparently covered'three counties, with the right to appoint subagents. Upon this point, appellant relies on the case of Oakland Motor Co. v. Fidelity Co., 190 Mich. 74. The case is distinguishable, in our opinion, for the reason that there no notice was given until three months after the happening of the accident and in the meantime the insurer had suffered actual prejudice through the loss of a material witness. The cases of Rooney v. Casualty Co., 184 Mass. 26 (67 N. E. 882), and Travelers Ins. Co. v. Myers & Co., 62 Ohio St. 529 (57 N. E. 458, 49 L. R. A. 760), are determined upon the point that the notice was given , to a mere soliciting agent. In the case at bar, the Flint Insurance Agency countersigned the policy as general agent and appears to have had authority to appoint subagents. This, in our opinion, was sufficient to constitute it a “duly authorized agent” within the meaning of the terms of the policy.

. As bearing upon this question, the legislative definition of a general agent, as contained in section 1 of chapter 3, Act No. 256, Pub. Acts. 1917, may be considered, although the contract in question antedates that definition, which follows:

“A general, district, State or special agent is hereby defined to be a person, firm or corporation acting under authority from any insurance company, to supervise and appoint agents, inspect risks, and otherwise transact business for and as a representative of such insurance corporation. * * * An agent is hereby defined as. a person, firm or corporation acting under written authority from any insurance company to solicit insurance and or write and countersign policies of insurance and collect premiums therefor. A solicitor is hereby defined as. any person acting under express authority from an agent, having authority to appoint solicitors, to solicit insurance for such agent, but without the power or authority to issue or countersign policies or otherwise bind any company of which such agent may be the duly authorized representative.”

The Flint Insurance Agency had authority to solicit insurance, to appoint agents, to collect premiums and to countersign policies.

2. Was the plaintiff, under the proofs in the case, the real party in interest? It may be noted, in passing, that the question is not raised by the pleadings; but, considering it upon its merits, we think it is without force. No assignment was made by plaintiff to the Chicago Bonding Company of his interest in the policy in suit. He did secure the money from the bonding company with which to pay the judgment against him and he did agree orally to repay the bonding company the monejr out of any recovery he might have against the defendant. This agreement did not deprive him of his legal interest in the policy. J. Frank & Co. v. Casualty Co., 175 Cal. 293 (165 Pac. 927).

In the case last cited, the assured had borrowed the money to pay the judgment and had actually executed an assignment of the proceeds of the judgment to secure the loan. But the court held that the plaintiff was entitled to recover, saying:

“It is therefore immaterial to the insurance carrier how or when that corporation obtained the money or the credit which enabled it to pay Cousins the amount due.”

See West Riverside Coal Co. v. Casualty Co., 155 Iowa, 161 (135 N. W. 414, 48 L. R. A. [N. S.] 195) ; Kennedy v. Casualty Co., 100 Minn. 1 (110 N. W. 97, 9 L. R. A. [N. S.] 478, 10 Ann. Cas. 673).

S. It is next alleged that the court erred in submitting to the jury the question of estoppel. It is undisputed that about the 18th of December, defendant had actual notice at its home office of the happening of the accident; that it did not, at that time, deny liability upon the ground of failure to give the notice as required by the policy contract; but, on the contrary, that a representative of the company went to the city of Flint, conferred with Mr. Vandervliet, interviewed witnesses, in company with Mr. Vandervliet, and took statements from said witnesses. Assuming that the defendant company had had no notice of the accident prior to that time and that it intended to rely upon plaintiff’s failure to give the notice required by the policy to defeat any claim made under the policy, it was clearly not justified in taking up the time of Mr. Vandervliet to interview witnesses and obtain statements from them. Cleaver v. Insurance Co., 71 Mich. 414; Towle v. Insurance Co., 91 Mich. 219; Jacobs v. Insurance Co., 183 Mich. 512.

The court charged the jury:

“The burden is on the plaintiff to satisfy you, first, that the written notice was waived; secondly, that the verbal notice was timely given, that the company waived its right to insist upon an earlier notice, those are the questions in the case for you to determine.”

Under the facts appearing upon the record, we think the charge was warranted.

Judgment is affirmed.

Moose, C. J., and Steere, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Clark, J.

text:
    PEOPLE v. MANDELL
    Criminal Law — Information'—Attempt to Commit Bubglaby — ■ Compiüted Offense — Misoareiage of Justice.
    In view of Act No. 89, Pub. Acts 1915 (3 Comp. Laws 1915, I 14565), a conviction under an information charging defendant with the offense of attempting to break and enter a store building will he sustained, on error, although the evidence was sufficient to show that a completed act of burglai’y had been committed.
    Error to recorder’s court of Detroit; Wilkins ¡(Charles T.), J.
    Submitted January 15,1920.
    (Docket No. 103.)
    Decided February 27, 1920.
    Chester Mandell was convicted of an attempt to break and enter a store building in the nighttime.
    Affirmed.

      William M. Schwartz, for appellant.

      Alex. J. Groesbeck, Attorney General, Matthew H. Bishop, Prosecuting Attorney, and' James K. Nichols, Assistant Prosecuting Attorney, for the people.
   Clark, J.

The information in this case charged that the defendant—

“On the 26th day of March, in A. D. 1919, at the said city of Detroit, in the county aforesaid, did attempt to commit an offense prohibited by law — that is to say, at about the hour of four o’clock in the nighttime of the said day, with force and arms, the store, not adjoining to or occupied with a dwelling house of Charles Levy, there situated, feloniously did attempt to break and enter, with intent the goods and chattels of the said Charles Levy, then and there in the said store, then and there being found, then and there feloniously to steal, take and carry away, and then and there in the said attempt did do a certain overt act towards the commission of the said offense, did cut a hole in the panel of said store door to enable Mm, the said Chester Mandell, to unlock said door, with intent then and there the said store to break and enter and steal, take and carry away therefrom the goods and chattels therein contained.” ■

Mr. Levy locked his store the evening before the alleged offense. The rear door of the store was secured from within .by two locks, in one of which there was a key, Police officers of the city testified that about 4 o’clock in the morning their attention was at-' traeted by. sounds in the rear of the Levy store; that a light was flashed and a man was seen crouching near the rear door who started to run. The officers gave pursuit and captured the defendant in the yard at the rear of the store. A knife was found on the ground near the rear door. A key was also found and there was testimony that it was the key which had been in the lock of that door. The officers further testified that there was a hole cut in the door near the lock large enough to admit the hand of a man. At the close of the proofs of the people counsel for defendant moved that the defendant be discharged for the reason that defendant was charged with an attempt and the completed act of burglary was shown to have been committed. TMs motion was denied. The defendant admitted being in the rear of the store at the time in question but denied that he had attempted to break and enter the store as charged. Upon trial the defendant was convicted. Following the verdict defendant’s counsel moved to quash the verdict and to discharge defendant upon the ground that the facts showed that the defendant was not guilty of the crime of attempting to break and enter, but was guilty of the completed act of burglary as the defendant, according to the people’s testimony, must have reached his hand through the hole in the door, and taken out the key for the purpose of unlocking it. This motion was likewise denied. Defendant reviews his conviction here upon writ of error. The sole contention of defendant upon the assignments of error is that the defendant should have been discharged for the reason that he was charged with an attempt and the testimony showed that he was guilty of the completed act of burglary. This contention is fully answered by the holding in People v. Smolkiewicz, 206 Mich. 1. In that case the defendant was charged with taking indecent liberties with a female child and the testimony if believed showed that what was done constituted rape, and it was there urged that the defendant should be discharged, because the testimony showed that a greater offense was committed than the one charged in the information, citing People v. Partridge, 86 Mich. 243, and People v. Rivers, 147 Mich. 643. Justice Moore, speaking for the court, said:

“If the law now stood as it did when the opinions were handed down in the cases cited by counsel for respondent this court would have no alternative but to discharge the respondent, but by Act No. 89 of the Public Acts of 1915 (3 Comp. Laws 1915, § 14565) it was provided:
"‘No judgment or verdict-shall be set aside or reversed, or a new trial be granted by any court of this State in any case, civil or criminal, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.’
“We think this statute was passed to prevent such a miscarriage of justice as would occur if this respondent upon this record should be discharged.”

The judgment is affirmed.

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


text:
    RACHOW v. CHARLEVOIX CIRCUIT JUDGE.
    1. Venue — Change of Venue — Discretion of Court.
    It is discretionary witb the trial court to grant a change of venue, and courts of review will not disturb the action of the trial court in the exercise of such discretion, except in cases of plain abuse.
    2. Same — Mandamus—Discretion of Court — Abuse.
    On mandamus to compel the trial judge to vacate an order denying a change of venue, showing held, insufficient to show an abuse of discretion.
    Mandamus by Warren J. Rachow to compel Frederick W. Mayne, circuit judge of Charlevoix county, to vacate an order denying a change of venue.
    Submitted January 27, 1920.
    (Calendar No. 28,950.)
    Writ denied February 27, 1920.

      Wilkinson, Routier & Hinkley, for plaintiff.

      J. M. Harris and Lisle Shanahan, for defendant.
   Clark, J.

In September, 1917, Robert B. Armstrong, a practicing physician of the city of Charlevoix, commenced a suit at law against Warren J. Rachow, then a resident of Detroit, but who had resided in Charlevoix from 1908 to 1917. A trial resulted in verdict and judgment for plaintiff in that cause. Review was had in this court (Armstrong v. Rachow, 205 Mich. 168) where the judgment of the lower court was reversed and a new trial ordered. Counsel for Mr. Rachow then filed a motion for change of venue under section 12341, 3 Comp. Laws 1915. The motion was denied by the defendant circuit judge. It is now sought by mandamus to compel the circuit judge to vacate the order denying the motion for change of venue and to enter an order granting the motion. The right of the plaintiff to review the order of the circuit judge by writ of mandamus is not questioned. in this cause and we will consider this application upon its merits. It is discretionary with the trial court to grant a change of venue, and courts of review will not disturb the action of the trial court in the exercise of such discretion except in cases of plain abuse. People v. Gage, 188 Mich. 641. Unless it can be said that there was an abuse of discretion the writ must be denied. The motion for change of venue was supported by affidavits to the effect that a fair and impartial trial could not be had in the county because of the standing and influence of Dr. Armstrong; because of prejudicial articles which had been printed by newspapers of the city of Charlevoix having general county circulation; because Dr. Armstrong was the family physician of nearly every family in the city of Charlevoix and because slanderous statements had been circulated which were prejudicial 'to Mr. Rachow. It is also said that the circuit judge was prejudiced and not a proper person to sit in the trial of the cause; that his prejudice was shown by statements made in conversation respecting the case, by advice to Dr. Armstrong as to the employing of counsel and by the action of the circuit judge, after making return to the order to show cause as provided by section 13437, 3 Comp. Laws 1915, in making personally and incorporating in the record a second return and then a third return. Affidavits were presented to the court in opposition to the motion to the effect that a fair and impartial trial could be had in the county, denying that slanderous statements had been made and denying that there was any public interest or clamor respecting the case which would make a fair and impartial trial improbable. By these affidavits it was also said that there were two other physicians in the city of Charlevoix and at least 10 other physicians engaged in practice in the county of Charlevoix. That Dr. Armstrong enjoyed an influence or standing beyond that of other useful citizens was also denied. Dr. Armstrong in his affidavit stated that he had no general acquaintance throughout the county, that his practice was confined to the city of Charlevoix and- about 6 townships in its immediate vicinity and that he was in no way responsible for newspaper articles which had appeared in the papers of the city of Charlevoix. It was also said that the newspapers did not have a general circulation outside of the city and its vicinity and that the articles were not such as would prevent a fair and impartial trial. The important newspaper article seems, to have been brought out by favorable references to Mr. Rachow in the same paper. Charlevoix county is said to have a population of upwards of 19,000 and the city of Charlevoix a population of approximately 2,500. In the county-are two other cities, East Jordan with a population of upwards of 2,500 and Boyne City with a population of upwards of 5,000. The litigation grew out of a personal business transaction between the parties. We do not think prejudice upon the part of the circuit judge was shown. Plaintiff did not apply to the judge of an adjoining circuit for transfer of the cause because the defendant circuit judge had been consulted, or was interested, or for other reason as provided by sections 12342, 12343, 3 Comp. Laws 1915, but addressed his motion for change of venue to the discretion of the defendant circuit judge. And it should be noted that defendant has requested that the presiding circuit judge assign some other circuit judge to the Charlevoix circuit to try this case. We do not find that in denying the motion for a change of venue there was an abuse of discretion. .

The writ is denied.

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


text:
    COUNTY OF SAGINAW v. KENT.
    1. Counties — Treasurer’» Books — Examination — Entries — Notice.
    The official books of the county treasurer are presumed to show the correct amount due from that officer to the county at all times, and where no entry of interest money was made therein, it cannot be presumed that the board of supervisors, from its examination of the treasurer’s books once each year, had notice that he was appropriating to his own use such interest money belonging to the county.
    2. Same — Boards—Powers Exercised as Boards.
    The powers of county boards must be exercised by them as boards and not as individuals.
    3. Same — Limitation of Actions — Action on County Treasurer’s Bond — Notice to Individual Not Notice to Board.
    Under 3 Comp. Laws 1915, § 12330, providing that where a right of action has been fraudulently concealed by the person liable, action may be brought within two years after the person entitled • to same shall discover it, although the action would otherwise be barred by the statute of limitations, knowledge by individual members of the board of supervisors that the county treasurer was appropriating to his own use interest money rightfully belonging to the county was not such notice to the board as to bar its right of action on the treasurer’s official bond to recover same.
    4. Same — Trial — Evidence — Notice to Individual Member of Board.
    A ruling by the trial court that testimony tending to show such knowledge on the part of individual members of the board was not admissible, unless some action taken by the board could be shown, or that it was openly discussed upon the board, held, not prejudicial to defendant.
    5. Same — Fraudulent Concealment of Right of Action.
    Evidence held, sufficient to present the question of fraudulent concealment of the cause of action by defendant treasurer as one of fact for the jury.

      G. Same — Notice.
    Where a bond to plaintiff by a bank as depository of county funds provided that interest should be paid after July 1, 1905, plaintiff is chargeable with knowledge of all facts as to this interest which the examinations of the board should disclose.
    7. Limitation oe Actions — Counties—Action on County Treasuree’s Bond.
    Where the ten years provided by the statute of limitations (3 Comp. Laws 1915, § 12323) did not begin to run until December 31, 1906, when defendant’s term of office ended and it became his duty to deliver the funds of his office to his successor, a suit on defendant’s official bond, started on July 15, 1916, was not barred by said statute.
    8. Counties — Compromise and Settlement,
    A settlement of an action against a depository bank, on its bond to the county, which did not include any interest money paid defendant treasurer, helé, not a bar to this action although the declaration in that action counted on the bond given by the bank during defendant’s term of office as well as on three successive bonds.
    9. Same — Question eor Jury.
    Testimony as to an item of interest charged against defendant, helé, to raise a question of fact for the jury.
    10. Same — tPrincipal and Surety — Liability oe Surety. Defendant surety cannot avoid liability on its bond for
    money credited by the bank to defendant treasurer after the expiration of his term, where said money belonged to the county and was under his control at the expiration of his term, and which he did not deliver to his successor in office.
    11. Same — Notice to.Member oe Finance Committee Not Notice to Board.
    Knowledge by one member of the finance committee of plaintiff board, which examined defendant’s books each year, that defendant was taking interest money belonging to the county, where not shown to have been imparted to the board, held, not binding upon the latter.
    Error to Saginaw; Snow (Ernest A.), J.
    Submitted January 7, 1920.
    (Docket No. 17.)
    Decided February 27, 1920.

      Assumpsit by the county of Saginaw against Fred W. Kent, principal, and the United States Fidelity & Guaranty Company of Baltimore, Maryland, surety, on an official bond. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Robert H. Cook (Frank D. Eaman, of counsel), for appellants.

      Riley L. Crane, Prosecuting Attorney (John F. O’Keefe and Bird J. Vincent, of counsel), for appellee.
   Clark, J.

In November, 1902, Fred W. Kent was elected treasurer of the county of Saginaw for the term of two years. He qualified according to statute and filed his bond upon which defendant the United States. Fidelity & Guaranty Company was surety. In November, 1904, he was re-elected county treasurer, again qualified, and again the United States Fidelity & Guaranty Company was surety upon his bond. His two terms of office began with January 1, 1903, and ended with December 31, 1906. The bonds were conditioned as provided by statute, 1 Comp. Laws 1915, § 2362, and were practically identical in form. The condition of the first bond was:

“Now, therefore, the condition of this obligation is such, that if the said Fred W. Kent, his deputy and all persons employed in his office shall faithfully and properly execute their respective duties and trusts, and shall pay according to law all moneys which shall come into his hands as such treasurer, and will render a just and true account thereof, whenever required by the board of supervisors, or by any provision of law, and shall deliver to his successor in office, or to any person authorized to receive the same, all books, papers, and other things belonging to said office, then this obligation to be void, otherwise to remain in full force and effect.”

Act No. 654, Local Acts 1905, became effective June 16, 1905, and provided in part:

“Sec. 5. It shall be the duty of the county treasurer of the county of Saginaw, to deposit the receipts of said'office to the credit .of the county of Saginaw in such bank or banks incorporated under the laws of this State or of the United States, as may be designated by the board of county auditors of said county, as the depository of the funds of the county. All moneys deposited in such bank or banks shall bear interest at a rate to be approved by the said board of county auditors, to be computed upon weekly balances and placed to the credit of the county on the 31st day of December and the 30th day of June in each year, and at any time when the account may be closed.
“Sec. 6. Before any deposit shall be made with any bank or banks, as aforesaid, such bank or banks shall execute and deliver to said board of county auditors a bond in such sum and with such sureties as shall be approved by said board of county auditors, the judge of probate and the prosecuting attorney of such county. Such bonds shall be made to the county and* shall be conditioned for the safekeeping and repayment of such moneys, or any part thereof, on demand, and the payment of such interest. * * *
“SEC. 7. All interest moneys so paid by any bank or banks on the deposits as aforesaid shall be credited to and form a part of the general fund of the county.”

Pursuant to the provisions of such local act the Commercial National Bank of Saginaw was designated as the county depository, and on August 31, 1905, the bank filed its bond conditioned as follows:

“Now, the condition of this obligation is such, that, whereas, the said county of Saginaw, Michigan, contemplates depositing certain of its moneys in the said Commercial National Bank of Saginaw, which moneys said bank hereby agrees to receive, safely keep for said county, and pay interest thereon from the first day of July, 1905, at the rate of three per cent, per annum to be computed on the average weekly balances of said moneys, and to be credited to the said county at the end of exchange for said county on Detroit, without cost in the transfer of funds during, the time said moneys are so held by it. Said bank agrees to safely keep said moneys and repay them, principal and interest, on demand of any sum by the county treasurer of Saginaw county, or his duly authorized deputy.
“Now, therefore, if the said Commercial National Bank of Saginaw, Michigan, shall well and truly keep and perform the above agreements and conditions, then this obligation to be void, otherwise to remain in full force and virtue.”

Prior to such designation of depository it is not claimed that it was the duty of the treasurer to deposit the public funds in a bank or other depository nor is it disputed that if the treasurer received interest from deposit of public funds it was his duty to account for it to the county. During his first term, and during his second term until August 24, 1905, when such designation of depository was made by the board of auditors under the local act, Treasurer Kent had the public funds of his office deposited in the Commercial National Bank in his name as treasurer and as interest upon such funds he received from the bank, from time to time, money which he converted to his own use and for which he failed to account to the county and of which no entry was made in the books of his office. Following the designation of depository and on August 26, 1905, Treasurer Kent arranged for deposit of public funds at the designated bank in two accounts, one in the name of “Fred W. Kent, county treasurer,” the other under the caption, “Fred W. Kent, county treasurer, special,” and thereafter to the end of his term of office from time to time he deposited public funds in both accounts. It is claimed that the bank credited the county with some interest items upon the funds in the account of “Fred W. Kent, county treasurer” and it is also claimed that Mr. Kent collected at different times and converted to his own use interest upon funds in the account of “Fred W. Kent, county treasurer, special,” making no entry thereof in the books of his office. June 1, 1916, the plaintiff had an audit of the treasurer’s books and of the accounts of the bank covering a period of years including 1903, 1904, 1905, and 1906, and claims that it then had its first knowledge and notice of these shortages. Following the audit suit was commenced against the bank upon its bonds as depository, which bonds included the bond given in August, 1905, and similar bonds given after January 1, 1907, to recover, as plaintiff claims, sums of interest which had not been paid to its treasurers, which suit was settled. And on July 15, 1916, plaintiff commenced this suit upon the official bonds of Mr. Kent covering his four years in office to recover the interest paid by the bank to Treasurer Kent and retained by him. The cause was tried by jury who returned a verdict for plaintiff for $14,055.82, upon which judgment was entered and the defendant surety has removed the cause to this court by writ of error.

There áre 113 assignments of error, discussed by counsel under five heads:

1. The statute of limitations.

Section 12323, 3 Comp. Laws 1915, is in part as follows:

“Sec. 13. All actions in any of the courts ox this State shall be commenced within six years next after the causes of action shall accrue, and not afterward, except as hereinafter specified: Provided, however,
“1. That actions founded upon judgments or decrees rendered in any court of record of the United States, or of this State, or of some other of the United States, and actions founded upon bonds of public officers, actions founded upon covenants in deeds and mortgages of real estate, may be brought at any time within ten years from the time of the rendition of such judgment, or the time when the cause of action accrued on such bond or covenant.”

Section 12330 is as follows:

“Sec. 20. If any person who is liable to any of the actions mentioned in this chapter, shall fraudulently conceal the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within two years after the person who is entitled to bring the same shall discover that he had such cause of action, although such action would be otherwise barred by the provisions of this chapter.”

It is the claim of the defendants that under the statute there can be no recovery for items of interest taken by Mr. Kent during 1904, 1905, and up to July 15, 1906, being beyond the 10-year period. The plaintiff claims that the cause of action was fraudulently concealed from it and that upon discovery of the same it promptly commenced this suit. It was the duty of the board of supervisors as often as once in each year to examine the accounts of the treasurer of the county and to ascertain and enter upon the records of the board a full statement of such account. Section 2269, 1 Comp. Laws 1915. The board of supervisors performed this duty and there being no entry of these interest items in the accounts of Treasurer Kent prior to July, 1905, it is claimed that from such examination and statements covering such period the board did not have knowledge or notice that the treasurer was unlawfully taking such sums of interest.

“The official books of the county treasurer are presumed to show the correct amount due from that officer to the county at all times.” Board of Sup'rs of Chippewa Co. v. Bennett, 185 Mich. p. 562.

Each year during Mr. Kent’s incumbency of office when the committee of the board of supervisors checked over the receipts and disbursements of the comity treasurer’s office from the books of his office for the purpose of examination of accounts and record thereof under the statute there was submitted to the board a statement or schedule of the annual receipts and disbursements of the county treasurer which statement or schedule was prepared in the office of the county treasurer either by himself or his deputies and which schedule was entitled, “county treasurer’s statement.” None of the interest money which it is claimed Treasurer Kent appropriated appeared in these statements or schedules. It is the claim of plaintiff respecting the fraudulent concealment that this was an affirmative act on the part of the treasurer. The defendants had testimony tending to prove that it was commonly' known that Treasurer Kent was taking interest money, that such had been the practice of other treasurers, that some individual members of the board of supervisors had knowledge of it, or had heard of it, or believed that the treasurer was entitled to it, and defendants offered further testimony tending to show such knowledge on the part of certain individual members of the board, which testimony was excluded, and the trial court said:

“I think, unless you can follow up this with the knowledge of the individual supervisor, by some action taken by the board, I shall exclude the testimony.”

Defendants’ counsel said:

“I do not .know whether we can connect that with any official action of the board of supervisors.”

The trial court again said:

“I think if this was discussed openly upon the board of supervisors, during this period, his period of administration, you may show that.”

By this ruling defendants were not prejudiced:

“The powers of county boards must be exercised by them as boards and not as individuals. An individual member unless expressly authorized cannot bind the county by his acts, and notice to or knowledge by an individual member not shown to have been imparted to the board is not binding upon the latter.” 11 Cyc. p. 391.

See, also, 15 C. J. p. 460; Ilsley v. Essex County, 7 Gray (Mass.), 465; Clayton & Co. v. Galveston County, 20 Tex. Civ. App. 591 (50 S. W. 737); Stoner v. Keith County, 48 Neb. 279 (67 N. W. 311).

From a consideration of all of the evidence we think the question of the fraudulent concealment of the «cause of action became one of fact for the jury. See Wolkins v. Knight, 134 Mich. 648, 649; Allen v. Conklin, 112 Mich. 74; Tompkins v. Hollister, 60 Mich. 470; Stebbins v. Patterson, 108 Mich. 537; Johnson v. Insurance Co., 12 Mich. 216.

By the conditions of the bond given plaintiff by the bank as depository, interest was to be paid upon bank balances after July 1, 1905, and the plaintiff is chargeable with knowledge of all facts as to this interest which the examinations of the board should disclose, but the plaintiff correctly claims under the facts of this case as to interest taken by. Treasurer Kent during the two-year term ending with December 31, 1906, that the statute of limitations did not begin to run until the expiration of the term, when it became his duty to deliver the funds of his office to his successor. Recovery therefore of funds taken by Treasurer Kent during such term was not barred by statute. 22 R. C. L. p. 511.

2. Was the settlement of the suit of the County of Saginaw • v. Commercial National Bank an absolute bar to a recovery here as to any items of interest paid Kent after July 1, 1908? The parties to that suit were the county of Saginaw and the Commercial National Bank. The declaration had a count upon the bond given to the county by the bank as' depository in August, 1905, when Kent was treasurer, and upon three other similar bonds given by the bank to the county during the terms of succeeding county, treasurers. A second count had an averment that the bank had conspired with treasurers of plaintiff to defraud the plaintiff. A third count was upon the common counts in assumpsit. A bill of particulars was furnished and no claim was made for the interest paid by the bank to Treasurer Kent. The accountant testified :

“Well, briefly, we show the total interest on the regular account and the total interest accrued on, the special account, and figured up $51,832.53; which, according to our computation, is the total interest at the various contract rates prescribed in these agreements, the total interest, due from the bank to the county of Saginaw on their contract.
“We then figured the total on the bank’s regular account, the total paid on the bank’s special account, showing paid $42,591.58, which includes all of the items which we enumerate in this report as haying been paid out as interest during Mr. Kent’s administration and not accounted for to the county. The difference, $9,240.95, represents the balance which the bank should have paid had they paid the full contract of Ínteres!/
“Q. Now, that $9,150.95 the amount of that check that was given by the Commercial National Bank to Saginaw county, is there included in that amount any of the items that you report as being received by Fred W. Kent from the Commercial National Bank and not accounted for to the county of Saginaw?
“A. No, it does not.”

In the instant case the declaration of the plaintiff county of Saginaw is upon the official bonds of Mr. Kent as county treasurer and against him as principal and the other defendant as surety to recover of them funds of the county which came into Mr. Kent’s hands while he. was county treasurer and of which he made no account to the county. The settlement of the suit against the bank is not a bar to recovery here. 1 C. J. p. 1118; 23 Cyc. p. 439; 1 R. C. L. p. 343; Lee v. Taylor, 11 N. Y. Supp. 131.

3. In plaintiff’s bill of particulars there was charged against the defendant an item, August 31, 1905; Interest on public money $1,465.34. Defendants claim this charge is unsupported by proof. The journal and ledger entries of the bank as to this item were introduced and explained and shown to have been made by a bookkeeper, deceased at the time of the trial. A review of the evidence as to this item will profit no one. From a comparison of the interest accounts and a consideration of the contradictory evidence as to this item we are inclined to the view of the trial court that there was a question of fact.

4. The bill of particulars charged defendant Kent with having received of plaintiff’s funds $240.17 on January 14,1907, and $350 on January 17, 1907. The defendant surety claims that as these are charged to have been received after Mr. Kent’s term of office had expired it is not liable therefor. There was some evidence tending to show that defendant Kent received these sums during his term of office, but we think it is undisputed that these items were funds of the county which Treasurer Kent had under his control at the expiration of his term and which he did not deliver to his successor in office.

5. The refusal of the court to give certain requests to charge. What has been said disposes of part of these requests. The substance of the remaining requests was:

“If the members of the auditing committee of the board of supervisors, on auditing the books and accounts of Fred W. Kent, had reason to believe that Fred W. Kent was receiving interest which belonged to the county, that it was their duty then to ascertain the amount and to take such steps as would apprise the county of the facts; and, if they did not do so, the county cannot claim there was fraudulent concealment of this cause of action.”

We have seen that the statute made it the duty of the board at least once in each year to examine the accounts of the treasurer and to enter upon the records of the board a full statement of the account. Section 2269, 1 Comp. Laws 1915. To facilitate its work the board each year appointed what it called a finance committee of five members and the committee was directed “to take up the usual work of checking the books, vouchers, etc., of the county treasurer’s office.” During the time in question such committees made reports to the board to which reports were appended the county treasurer’s statements of receipts and disbursements. The reports were accepted, adopted and recorded by the board. Covering Mr. Kent’s first term of office in these records, reports, county treasurer’s statements and treasurer’s accounts there is no entry of, or reference to, the interest items, and, we think, nothing to charge the board with knowledge or notice that the treasurer was receiving and taking interest on the public funds. Defendants had testimony that at least one member of the finance committee during such time had heard that Treasurer Kent was taking interest money and offered some further testimony to the same effect, which was excluded. ' This is covered by the rule already stated. 11 Cyc. p. 391. Knowledge or notice by an individual member of the board, though a member of its finance committee, not shown to have been imparted to the board, is not binding upon the latter. By statute the duty to examine the treasurer’s accounts was upon the board and in the discharge of that duty, though assisted by its committee, it must act as a board. Vincent v. Board of Sup’rs of Mecosta Co., 52 Mich. 340; People v. St. Clair County Officers, 15 Mich. 85; The Advertiser & Tribune Co. v. City of Detroit, 43 Mich. 116.

The questions raised have- been considered. The charge of the trial court was fair and comprehensive. No prejudicial error is found.

The judgment is affirmed.

Moore, C. J., and Steere, Brooke, Stone, Bird, and Sharpe, J<L, concurred. Fellows, J., did not sit.