text:
    PHALEN v. CITY OF DETROIT.
    Pleading — Amendments — Sidewalks — Defects — Liability of-City.

       1. Where a declaration fails to allege that a notice, required, by the charter of a city, was served upon the city, it is competent to permit an amendment to the declaration alleging-that fact. It is not an introduction of a new cause of action.
    2. Where the statute requires municipalities to keep their sidewalks in reasonable repair, and in condition reasonably safe and fit for travel, it is error to instruct the jury that the-municipality is required to keep its sidewalks in good repair, and safe and convenient for public travel.
    Error to Wayne; Donovan, J.
    Submitted April 17, 1901.
    Decided May 21, 1901.

      Case by Christiannah Phalen against the city of Detroit for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      P. J. M. Hally and Charles E. Love (Timothy E. Tarsney, of counsel), for appellant.

      Lewis A. Stoneman (Arthur Webster, of counsel), for appellee.

       Head-notes by Grant, J.

   Grant, J.

Plaintiff recovered a verdict and judgment for injuries resulting from a fall upon a defective sidewalk. The declaration did not allege the notice served upon the law department of the city, as the charter requires. When proof of the service of notice was tendered, counsel for defendant objected because it was not alleged in the declaration. Careful pleading would require the allegation in the declaration that the notice required by the charter, and the failure to give which is made a complete defense to the suit, was given. Whether it is absolutely essential we need not determine. The court ordered an amendment to the declaration, and the trial evidently proceeded upon the theory that the amendment was made. This was within the power of the court, and did not introduce a new cause of action.

The court instructed the jury:

“ The plaintiff claims to have been injured while walking on a sidewalk in the city of Detroit. Under the law of this State, it is necessary that the defendant (that is, the city) should keep its sidewalks in good repair, so that they shall be safe' and convenient for public travel at all times; and if the defendant fails to keep its sidewalks in good repair, and on account of that negligence an injury happened, then the city would be liable to the person so injured, provided the city had notice of the defective condition.”

This instruction was taken substantially from the law as it existed under Act No. 244, Pub. Acts 1879, § 4. The law was subsequently amended, and now requires that townships, etc., shall keep their sidewalks, etc., in reasonable repair, and in condition reasonably safe and fit for travel. 1 Comp. Laws 1897, § 3443. The instruction would undoubtedly have been proper under the former law, but was not under the present law. The legislature, in changing the law, evidently recognized that there was a distinction between “good repair” and “reasonable repair,” and between a “condition safe and fit for travel” and one “reasonably safe and fit for travel.”

Reversed, and new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    BURTIS v. MUNISING CO.
    Contracts — Construction—Acts of Parties.

       Plaintiff and defendants entered into a contract by which plaintiff agreed to construct a sawmill, and the defendants the Munising and Lac La Belle Companies agreed that 40-000,000 feet of timber from their lands should be furnished and delivered to plaintiff for sawing, at 82.50 per M. The Munising Company sold its standing timber to C., with an agreement that it should be sawed at plaintiff’s mill, and that the price for sawing should be reduced 2 per cent, for cash. C. had no negotiations or contract with plaintiff. The Munising Company notified plaintiff of the arrangement it had with C., and asked him to reduce the price for sawing. Plaintiff refused, and insisted on the contract price. C. paid plaintiff according to his agreement with the Munising Company. Plaintiff sued the Munising and Lac La Belle Companies to recover the unpaid balance. Held, that they were liable under the contract as interpreted by their own acts and conduct.
    Error to Alger; Steere, J.
    Submitted April 18, 1901.
    Decided May 21, 1901.

      Assumpsit by George L. Burtis against the Munising .Company and the Lac La Belle Company, impleaded with the Munising Railway Company, to recover the balance of a saw bill. From a judgment for plaintiff, defendants bring error.
    Affirmed.
    In September, 1895, and for a long time prior thereto, plaintiff owned and operated a sawmill in the city of Marquette. The defendants the Munising and the Lac La Belle Companies owned large tracts of land in the vicinity of Munising, situated on the shores of Lake Superior. It was the desire of these companies to have a sawmill eiected at Munising. Plaintiff and the defendants, with this purpose in view, entered into an agreement on that day, of which the material parts are as follows:

      liWhereas, the Munising Company, of Cleveland, Ohio, is the owner of about eighty-four thousand acres of land in Alger county, Michigan, a portion of which is along the navigable waters of Munising or Grand Island Bay; and Whereas, the Lac La Belle Company, of La Porte, Indiana, is the owner of one hundred thousand acres in the same county, and which adjoin upon, and are partly intermingled with, the lands of the said the Munising Company; and Whereas, the Munising Railway Company is engaged in building a railway from the said bay in three directions, — southeastwardly towards Manistique, northeastwardly towards Grand Marais, and southwestwardly towards the Chicago & Northwestern Railroad,— for the purpose of making available the timber upon the said lands; and Whereas, it is proposed to furnish to the large purchasers of the timber on the said lands free paill. sites upon the said bay, and to connect the same with the railway to be constructed; and Whereas, George L. Burtis, of Marquette, Michigan, has now a sawmill in the said city of Marquette, and desires to remove and enlarge the same, and to engage in the business of manufacturing lumber upon the said bay:
    “Now, therefore, this agreement, made this 20th day of September, 1895, by and between the parties hereinbefore mentioned, and their successors or assigns, witnesseth : In consideration of the covenants and agreements hereinafter contained, to be performed by the said the Munising 'Company, Lac La Belle Company, and the Munising Railway Company, the said George L. Burtis agrees to at -once select a mill site [describing it]. As soon as this •contract is executed by the several parties, the said Burtis will at once enter upon the said site, and in due season, at his own cost and expense, get out piles and timbers, and make and erect the said docks, bodms, and tramways, as before suggested, in good, substantial, and rapid manner. He will also erect the sawmill, putting therein two first-class band saws for sawing logs, and the latest improved machinery for manufacturing lumber in an economical, good, and workmanlike manner, and having the same done and completed, so that sawing will be ready to commence in the said mill on or before June 1, 1896.
    “The said Burtis agrees to saw forty million feet of white and Norway pine logs, which are to be furnished from the lands of the Munising Company and the Lac La Belle Company, for the price and sum of two dollars and fifty cents per thousand feet; this price to include the manufacturing, the assorting in the varieties usually made for cargo shipments, namely, shorts, saps, mill culls, 10 and 12 stocks, and the various thicknesses, by themselves, no grading requiring the services of an experienced grader to be required of said Burtis, and piling upon the dock upon navigable waters convenient for shipment, with no extra charge for carrying or storing said lumber unless for more than ninety days, with no charge for storing between the closing and opening of navigation. Lumber, when piled, to be at owner’s risk. He will also •saw any hemlock logs that may come from the lands of the said the Munising Company and the said Lac La Belle Company on the same conditions as provided hereinafter for hardwood. He will also saw any hardwood logs from the lands of the two companies, and pile the •same convenient for shipment, at such reasonable prices •as may be agreed upon hereafter. All slabs, edgings, and other refuse from logs to belong to said Burtis.
    “He agrees that the manufacturing of the lumber in the •said mill, the assorting, handling, and piling of the same as above, is to be done under the direction of the owners of the logs, and to their entire satisfaction; and he agrees to reimburse and pay the said log owners for any unusual amount of lumber that is injured by reason of being poorly manufactured. The said mill to have a capacity for manufacturing not less than fifteen million feet of lumber in the ordinary milling season in each year, and the said Burtis agrees to manufacture therein not less than ten million, feet each year, unless prevented by delays from strikes and unavoidable accidents.
    “The said the Munising Company and the Lac La Belle Company agree and guarantee to the said Burtis that forty million feet of pine timber from their lands as above provided, or, if so much pine cannot be profitably lumbered, then of hemlock or other timber, shall be furnished and delivered to the mill that he shall erect upon the said bay, within the next five years, and to deliver annually eight millions or more during each sawing season (that is, between May 1st and October 1st), beginning May 1, 1896, until said forty million feet shall have been furnished. The timber so to be furnished shall at all times have the preference, and shall be sawed before timber offered by any other parties. They also agree to recommend and encourage the purchasers of the timber on small tracts of their lands to ship the same to the said Burtis for manufacturing, but the logs to be manufactured, sorted, piled, and stored at the price and upon the conditions hereinbefore stated. * * *
    “ It is understood that, while the said the Munising Company and the Lac La Belle Company will encourage the purchasers of small quantities of hardwood timber to have their sawing done at the mill of the said Burtis, it is nevertheless not to be prohibited from giving the purchasers of the timber on large tracts of land free sites for sawmills upon said bay; it being fully understood that the said two-land companies and the railway company desire to make the said bay a manufacturing center, and agree to assemble at that place, and to put in marketable form, the timber tributary to 80 or more miles of railway which they expect to build and operate.
    ‘ ‘ If the Munising Railway Company, the Lac La Belle Company, or the Munising Company shall themselves log and manufacture any timber, — pine, hemlock, or hardwood, —it is agreed that, subject to the conditions hereinbefore mentioned, all such timber shall be brought to mill of said Burtis for manufacture.”
    This contract was carried out, and the mill erected. The Munising Company sold to Comstock Bros, the pine timber from its lands. This sale was made through one Scott, the agent of the company, and upon the agreement that the sawing was to be done at plaintiff’s mill. Comstock Bros, demanded of the defendant company, through Scott, a reduction of 2 per cent, from the contract price for sawing. Scott assured Comstock Bros, that a discount of 2 per cent, would be allowed for cash. This was the agreement made between Scott and the Comstock Bros. Plaintiff was not a party to it. After the sale was made, Scott wrote to Burtis, stating the sale had been made to Comstock Bros., and saying: “You must help me out on the discount on the saw bill for prompt cash, of 2 per cent.” Burtis declined to accept the proposition, and insisted upon the contract price. The logs were delivered by Comstock Bros, to the plaintiff, sawed, and he received from Comstock Bros. 98 per cent, of the contract price. Plaintiff sued to recover from the defendants the balance of the saw bill, basing his right of action upon the contract above set forth. Plaintiff recovered verdict and judgment.

      Charles B. Brown & Son, for appellants.

      A. B. Fldredge, of counsel for appellant Lac La Belle Co. '

      Henry B. Freeman, for appellee.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). It was conceded upon the trial that the conversation between Scott and Comstock Bros, created no independent liability on the part of the defendants, and that the receipt of 98 per cent, of the saw bill by plaintiff from Comstock Bros, created no estoppel upon his part, and that the sole purpose of this testimony was to aid in the interpretation of the contract. The defendant companies guaranteed to plaintiff 40,000,000 feet of timber to manufacture. They were under contract obligation to furnish it, or to cause it to be furnished. If they had failed to do so, they would have been liable in an action for breach of contract. This timber was furnished as a part of the stipulated amount, and the Munising Company, in its dealings with Comstock Bros, and with the plaintiff, clearly recognized the binding force of that contract. .The Munising Company made this concession as to the sawing price in order to accomplish its sale. It acted through its authorized agent, whose principal was evidently cognizant of the negotiations. The parties had a right, and it was the duty of the company, to contract that the timber should be sawed at plaintiff’s mill at the agreed price. It had no right to contract for a less price. Comstock Bros, saw the contract between plaintiff and defendants, understood its terms, and made their contract upon the theory that the Munising Company had the right to contract with them in regard to the sawing price, and that the company would be bound to make good the difference, should plaintiff refuse to accede to the reduction. Upon this theory the company asked plaintiff to assent to the reduction. He promptly refused to be bound thereby, and told that company that he would hold it liable for the difference. Plaintiff had no express contract with Comstock Bros. He could not have recovered against them the contract price for sawing. If plaintiff had sued Comstock Bros., upon what basis could he have recovered from them, after he had recognized the contract between them and the company, had informed the company that he should demand from it the difference, and, in the face of his protest, the company had proceeded to carry out its contract with Comstock Bros.? To that suit Comstock Bros, would evidently have replied: “We did not contract with you; we contracted with the Munising Company under its contract with you.” But, if plaintiff could have maintained a suit against Comstock Bros., it would have been on an implied contract to pay what the sawing was worth, and not the price of the contract between plaintiff and defendants. All the parties acted upon the theory that the defendants were bound to pay the contract price, and that, if either of them saw fit to reduce it, it must make up the difference. If there were any doubt about the construction of the contract, the Munising Company, by its conduct in dealing with Comstock Bros, and the plaintiff, construed it against the claim it now sets up. No question is raised as to the liability of the Lac La Belle Company for the separate acts of the Munising Company.

Judgment is affirmed.

The other Justices concurred.


text:
    PARKER v. THOMAS.
    Appeal — Review.

       This case was one of fact, .and is affirmed without any discussion of the evidence. -
    Appeal from Lapeer; Smith, J.
    Submitted April 18, 1901.
    Decided May 21, 1901.
    Bill by Mary E. Parker and others against Melissa D. Thomas to set aside an assignment of a mortgage. From a decree dismissing the bill, complainants appeal.
    Affirmed.
    Silas G. McIntyre, deceased, was the owner of a mortgage of $2,500 upon 80 acres of land. Complainants and the defendant are his children. On June 25, 1895, Mr. McIntyre assigned this mortgage to the defendant. There was then due upon it the sum of $2,420. The consideration for this assignment is shown by the following agreement, made at the same time:
    “The party of the first part, in consideration of. the assignment of the mortgage today assigned by second party to said first party, hereby agrees to pay for and to said second party as follows: First party agrees to pay to Jane McIntyre, wife of said Silas McIntyre, $50 per year-in weekly installments during her natural life. First-party- also agrees to pay all debts of second party now contracted by him in Cass City, Michigan. First party also-agrees to pay second party $34 September 18th, 1895, and $34 every three months thereafter during the natural life-of said Silas G. McIntyre.”
    This mortgage was all the available property Mr. McIntyre possessed. He tried to sell it, and the only offer he obtained was $1,300. The farm was in a dilapidated', condition, and the mortgagor neglected to pay. Foreclosure proceedings were had, at which the defendant became the purchaser. The purpose of this bill is to set aside the assignment of the mortgage, or to obtain a decree that the defendant holds the land in trust for herself and the complainants. The case was heard upon pleadings and proofs taken in open court, and the bill dismissed.

      Johnson & Stevens (Lee & Parker, of counsel), for-complainants.

      Geer, Williams & Halpin, for defendant.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). If Mr. and Mrs.. McIntyre had lived to the age of expectancy as shown by the life tables, the defendant would have paid all that the mortgage was worth. There is, therefore, no ground for saying that there was not an ample consideration for the transfer of the mortgage. The claim of complainants is that Mr. McIntyre was incompetent, at the time, to transact business, to understand and comprehend his acts, and. to make the assignment of the mortgage. The question, therefore, becomes one purely of fact. We are satisfied that the court below reached the correct conclusion.

The decree is affirmed, with costs.

Hooker, Moore, and Long, JJ., concurred. Montgomery, O. J., did not sit.


author: Long, J.

text:
    KINSEL v. KINSEL.
    Divorce — Bill of Review.
    Defendant’s petition for leave to file a bill of review in a divorce proceeding, setting up that the notice of hearing served on her solicitors was not sufficient to permit them to be present, and that the grounds for divorce relied on had been condoned by complainant, was improperly denied.
    Appeal from Wayne; Donovan, J..
    Submitted April 18, 1901.
    Decided May 21, 1901.
    Bill by William S. Kinsel against Lizzie E. Kinsel for a divorce. Defendant appeals from an order denying her petition for leave to file a bill of review.
    Reversed.

      D’Aigle & McDonald and 'James Collins, for petitioner.
   Long, J.

This is a petition filed by defendant for leave to file a bill for review in a divorce proceeding. The court below refused to grant the prayer of the petitioner. Petitioner appeals.

It appears that in November, 1897, Lizzie E. Kinsel, the petitioner and defendant in the present case, filed a bill for divorce in the Alpena circuit court, in chancery, making her husband and his brother parties defendant. She obtained an injunction restraining them from disposing of certain funds in the hands of the brother. The defendants in that case both answered the bill, the husband’s answer being in the nature of a cross-bill, counter-charging the complainant with extreme cruelty, and praying for an absolute divorce and the custody of the two children, a boy aged 11 and a girl 9 years of age. Thereafter the parties met and made a settlement of their differences, the husband deeding to the wife the house and lot occupied by them as a home, which the proofs show was worth some $2,000, and which Mr. Kinsel testified cost him over $5,000. He also paid the costs of the proceeding and $100 to the complainant’s solicitors.

Mr. Kinsel thereafter went to Detroit, taking the boy with him, and leaving the girl with his wife. After being there for a time, he commenced proceedings in the Wayne-circuit court, in chancery, against his wife. She answered the bill. The case was noticed for hearing. The notice was served on Mrs. Kinsel’s solicitors on Sunday afternoon, April 8th, that the case would be heard on April 10th. Mrs. Kinsel and her solicitors lived in Alpena, and had only 24 hours to get to Detroit, a distance of 250 miles, and could not reach the court in time for the hearing. The complainant in the cause proceeded with the hearing, and took a decree of divorce in the absence of the defendant and her solicitors, giving the husband the care and custody of one of the children. The petitioner shows that the grounds for divorce set up in this bill are the same as those set up in the former case, which she claims, were condoned in the settlement of the former divorce case, and that after such settlement the parties lived and cohabited together as husband and wife.

We think the petition stated such facts as entitled the-petitioner to file a bill of review. The order of the court below must be set aside, and an order entered granting leave to defendant to file a bill of review. She will recover against the complainant costs in the present proceeding of $25, and $25 solicitors’ fees.

The other Justices concurred.


text:
    HAGEN v. JOHNSON.
    Justices of the Peace — Garnishment — Notice to Claimant-Jurisdiction.
    Under 1 Comp. Laws 1897, § 1017, providing that, on disclosure by a garnishee in justice’s court of the claim of a third party to the fund, and on payment of the fund into court, the justice shall cause notice to be served on such claimant to appear and maintain his claim, and for that purpose may, “on the return day of the garnishment suit,” adjourn the cause for not less than 10 nor more than 30 days, the justice has no jurisdiction to issue such notice after the expiration of 30 days from the return day of the original garnishee summons, even though the delay is occasioned by the fact that the money, not being due, was not paid to the justice within that period.
    Error to Gogebic; Haire, J.
    Submitted April 18, 1901.
    Decided May 21, 1901.
    Garnishment proceedings in justice’s court by Charley Johnson against the Dunn Iron Mining Company, as garnishee of Charles Bjork. Iver H. Hagen and Carl L. Solberg, copartners as Hagen & Solberg, were inter-pleaded as claimants of the fund, and, from a judgment against them, took a special appeal to the circuit court, where the decision of the justice was reversed. Plaintiff brings error.
    Affirmed.

      Curtis Buck (Julius J. Patek and John W. McGrath, of counsel), for appellant:
    The claimants’ notice was issued in the present case as soon as it was legally issuable. 1 Comp. Laws 1897, § 1012; Stone v. Dowling, 119 Mich. 476 (78 N. W. 549).

      Herb. M. Norris, for claimants.
   Long, J.

It appears that Charley Johnson commenced suit against Charles Bjork in justice’s court, and on the same day caused a garnishment to issue against the Dunn Iron Mining Company. On the return day of the garnishee summons, the garnishee defendant, the Dunn Iron Mining Company, disclosed that at the time of the service it was indebted to Bjork, the principal defendant, in the sum of $45, which would become due and payable August 30, 1900, and $4, which would become due September 30th, the same year. It further disclosed that Hagen & Solberg, copartners, claimed to own said moneys by virtue of an assignment from the principal defendant. The justice thereupon adjourned the case until September 30th, the date upon which the last payment would become due to the principal defendant. On that day the cause was again adjourned, at the request of the plaintiff, until September 35th. On that day the garnishee defendant deposited with the justice the whole amount it claimed to be due from it to the principal defendant, to wit, the sum of $53.75, and thereupon requested the justice to issue notice to Hagen & Solberg to appear before him on October 35th, at 1 o’clock in the afternoon, to show their claim to said fund. On October 35th the claimants, Hagen & Solberg, appeared and protested, and claimed that the justice had lost jurisdiction, for the reason that the notice to them was not issued within 30 days from the return day of the original garnishee summons. The justice overruled the claimants’ motion to quash the proceedings. The claimants declined to proceed further, and the justice thereupon rendered judgment against them in respect to their claim for the money. Claimants took a special appeal to the circuit court, setting out in the affidavit for special appeal that the justice erred in holding that he had jurisdiction. The circuit court reversed the judgment of the justice. Plaintiff brings error.

The errors assigned are that the court erred in entertaining the special appeal, because the claimants voluntarily failed and neglected to declare against the money, and voluntarily permitted judgment to be rendered against them in respect to said money. We think these contentions cannot be sustained. The judgment of the justice was properly reversed. The money was deposited with the justice on September 25th by the garnishee defendant, who was discharged by such deposit. The statute (section 1017,1 Comp. Laws 1897) provides that:

“The garnishee may deliver such money * * * to the justice, who shall cause to be served on such claimant a written notice to appear in said court and maintain his said claim. Such notice shall contain the name of the parties to the principal and garnishee suits, the name and place of residence of the justice, the return day or adjourned day of the garnishee suit. * * * For the purpose of giving an opportunity of serving the notice above provided, it shall be the duty of the justice, on the return day of the garnishment suit, if requested by the garnishee, to adjourn such suit not less than ten or more than thirty days. * * * The claimant shall appear jn the suit on the return or adjourned day named in the notice served upon him,” etc.

It appears that the garnishee summons was returnable on August 13th. The garnishee appeared and disclosed on that day that Hagen & Solberg claimed to own the moneys by assignment from the principal defendant. The garnishee cause was then adjourned to September 20th, and on motion of plaintiff again adjourned to September 25th, when the moneys were deposited by. the garnishee with the justice, and notice to claimants issued. The statute requires this notice to be served at least 10 days before the return or adjourned day of the garnishment suit. The last day of the adjournment of the garnishee suit, as appears by the record, was September 25th, and the notice was not served until after that time, though the disclosure was made that the money was claimed by the claimants -on August 13th. We think the justice lost jurisdiction of the cause by reason of this delay, and that the circuit court properly reversed the judgment of the justice. This is a special proceeding under the statute, and the statute must be followed.

The judgment of the court below must be affirmed, with costs.

The other Justices concurred.


text:
    BOLDMAN v. LENG’S ESTATE.
    1. Contracts — Termination—Compensation for Services.
    Where a demented person was cared for by plaintiff under a contract to care for her for one dollar per day till a week: after notice of a refusal to keep her longer at such rate,, plaintiff was entitled to a reasonable compensation for keeping the ward after terminating the contract by notice.
    2. Same — Instructions.
    Where, in an action for caring for a ward, the evidence-showed a contract with the guardian by which the guardian was to be given a week’s notice if plaintiff should decide not to keep the ward longer at an agreed price, it was error to-instruct the jury that a notification by plaintiff that he did not feel that he was able to keep the ward longer at' such price was not equivalent to a direct notification that he would not continue to keep the ward for such price.
    3. Trial — Instructions—Harmless Error.
    Appellant cannot complain of an inconsistency in the charge of the court due-to the giving of his own erroneous requests.
    Error to Wayne; Donovan, J.
    Submitted April 19, 1901.
    Decided May 21, 1901.
    George Boldman presented a claim against the estate of Susan Leng, deceased, for services rendered. The claim, was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for claimant, the estate brings error.
    Affirmed.

      Henry M. Cheever, for appellant.

      Walter Barlow, for appellee.
   Long, J.

This is an appeal from the commissioners on claims in the estate of Susan Leng disallowing an account. In the circuit court the claimant had judgment before the court and jury for $3Y2.4o. Defendant estate appeals. The only errors assigned relate to the charge of the court.

The claimant filed a bill of particulars of his claim before the commissioners, as follows:

1899.
March 30fch. To moving goods of deceased to my house.......................................... $2 00
To board and care of deceased by myself and family from March 80 to April 12, 1899, 14 days......... 14 00
To board and care of deceased from April 12 to July 5, 84 days.........................-............ 420 00
To preparing body for burial, and care of body for 4 days before funeral-------------------.......... 50 00
To storage of furniture, bedding, trunks, clothing, etc., of deceased for 20 weeks after death........ 20 00
To board and meals furnished relatives and friends of deceased after her death up to time of funeral. 15 50
To washing bedding and clothing of deceased after death .......................................... 5 00
$526 50
Or. By cash . 144 05
Balance due. $382 45

It appears that the deceased, Mrs. Leng, was about 80 years of age, and had been demented several months before she was taken to the house of claimant. Dr. Jenks had been appointed her guardian by the probate court. The deceased was possessed of some considerable money, and two or three days before she was taken to claimant’s house her guardian had seen Mr. Boldman about taking care of her. The controversy in this case arises largely over the claimed contract for taking care of her.

Mrs. Boldman was called as a witness for the claimant, and testified in reference to the contract:

“I was to take her for a dollar a day, and if, under any circumstances, I found I could not keep her, I was to give him [Dr. Jenks] one week’s notice to remove her to some other place. He also said, in making the bargain, if she lived but a little while the judge of probate would pay the person who took care of her, and would pay them well.”

She then testified, substantially, that at first she took the deceased at a dollar a day, and, when she found that she did not want to continue at that rate, she was to give the guardian notice that she could not continue any longer; that, when Mrs. Leng had been at her house about two weeks, she told Dr. Jenks she could not take her any longer for a dollar a day, but that he wanted her to keep her longer, and said, “You will get your pay all right.”

Dr. Jenks testified that the bargain was for one dollar a day. He was then asked:

“ Q. Until such time as they could not keep her at that price ?
“A. Notify me and give me a week’s time.
“Q. And that notice came after she had been there about two weeks ?
“A. No, sir; never gave me notice.
“Q. But Mrs. Boldman said something about keeping her at the expiration of two weeks ?
“A. Two weeks, or sucha matter.
“Q. And then what did she say ?
“A. She said she did not have enough.
“Q. Now, you say she told you she could not keep the old lady any longer at that price ?
“A. No, sir; I did not say so.
“Q, What did she say ?
“A. Why, she did not feel as though she could keep the old lady. She felt as though she ought to have more.
‘ ‘ Q. That is what she told you ?
“A. Yes, sir. * * Certainly, she told me that;
that is what she did tell me.
“Q. What did you say ?
“A. I said, whenever she felt she could not keep the old lady according to contract, give me a week’s notice; let me know, and I would see that she got more, or I would get her into another place.”

We think it thus appears that the notice was given, as agreed upon, that claimant would not keep the old lady at the one dollar a day. Mrs. Leng remained there 84= days after that time, and the inquiry in the case was properly made as to the value of the services during that time. In the absence of any new rate being agreed upon,. the law would imply a promise to pay what the services were reasonably worth. Ward v. Warner, 8 Mich. 519. Testimony was given as-to the character of the services rendered. The daughter of Mrs. Boldman testified that the deceased required the constant attendance of Mr. and Mrs. Boldman, Mrs. Boldman’s mother, and herself night and day, and that the care was worth for the 84 days five dollars per day. The witness also testified that the value of the other services and the board of the relatives and storage of the furniture were worth what was charged in the bill. Mrs. Savage, a witness called by the claimant, testified that the deceased was demented; that she had bowel trouble, and relieved the calls of nature anywhere in the house; and that she required constant watching and aid.

The defendant estate claims:

1. That but one contract was made, and that was for one dollar per day. We think there was some evidence tending to show that that contract was only for the 14 days which is charged in the bill at one dollar a day. As to the further services, there was some testimony showing that the price was not agreed upon, but that the guardian left Mrs. Leng there, agreeing that the claimant should be well paid.

2. It is contended that the verdict is not sustained by the evidence. As we have already said, there was some evidence upon which the jury had a right to pass in determining the question as to the value of the services.

3. The principal claim is that the charge of the court was inconsistent and misleading, and therefore erroneous. Counsel for the estate presented seven requests to charge, all of which were given, as follows:

“1. It is undisputed that the contract was with appellant to care for Mrs. Leng at one dollar a day; that is, the two weeks is certainly undisputed.
“2. If you believe that Mrs. Boldman notified Dr. Jenks, 14 days after Mrs. Leng went to Boldman’s house, that she did not feel that she could keep Mrs. Leng longer for one dollar a day, that is not equivalent to a direct notification that she would not keep her at that price.
“3. If you believe that when Mrs. Boldman said to Dr. Jenks, the guardian, that she did not think she ought to keep Mrs. Leng for one dollar a day, and that he said to her, ‘ Whenever you feel that you cannot keep her, give me a week’s notice, and I will remove her,’ and if you find no such peremptory notice was given, then the appellant can only recover at the rate of a dollar a day.
“4. If the jury find that the appellant kept Mrs. Leng until her death without any notice to the guardian that the Boldmans would not keep her for a dollar a day, then they can only recover for keeping and care one dollar per day for the entire time until her death.
“5. It is immaterial why the executor took Mrs. Leng to Mrs. Boldman’s.
“6. The guardian admits that, for the last 20 days of Mrs. Leng’s life, the Boldmans were entitled to two dollars a day, and that he paid them after Mrs. Leng’s death more than a dollar, and that that was the reason, and not because he had made any new bargain; that is, for the reason that it was worth more.
“7. In estimating the amount which should be paid for laying out the body and caring for it for four days, it is for you to take into account that the mother of Mrs. Boldman has already received $10 for her services.”

The court thereupon charged the jury, in its general charge, as follows:

“A word or two more, so that the theory may be clearly understood. It is conceded in this case, to lessen the controversy somewhat, that the care and laying out was well attended to. The care, board, keep, laying out, and general nursing is not in question. That the body was nicely laid out, that it had been a hard task to care for the old lady’s person, that the woman was demented, and needed night and day attention, is not denied. To quote Dr. Jenks on the question of contract, CI was to have a week’s notice if she could not keep her;’ but he said Mrs. Boldman would not say-that she would not keep her. In effect, she said she wanted more. That question came up that she wanted more. Now; how much was just, was right, under the circumstances, is not a question for the court. That has come very near to your families often. It has to mine, three times within the last year. I would feel unable, if I should try, to talk to a jury upon the question of care in the last illness of a grown person, especially of that care when they had to be taken as ■children, — nursed as a child, handled as a child, even when they are heavy, grown people. I will not trust myself on that subject, but confine myself to this: The theory of the claimant here is that the care was extra, and that she complained to Dr. Jenks and insisted on more, and, as I •remember the words, — but you must be the ones to remember that, — but that he said at one time, ‘ The court will see that you are paid,’ or something of that kind. The court— In her way of putting it, that, if she wanted any more, she must apply to the court. You have heard the way she placed it before you. It is not necessary to repeat it. And then you are to take into consideration that if they did not make a contract after the two weeks, ■say, and left it open, then the law makes a contract for them. In the absence of a contract, when neither party makes a contract, but there is something done for the .advantage of the other, the law raises what is known as an ‘implied contract,’ — the worth and value. Now you know enough about the casé. Take the testimony as you have heard it, the surroundings and the circumstances, place your good judgment back of it, — your trained judgment, — and do justice between the parties.”

Counsel for the estate claims that the charge was inconsistent and misleading. We think it may be admitted that the charge, taken in connection with the requests to charge which counsel for the estate asked to be given, and which were given, is somewhat inconsistent; but the estate is not harmed by it. Many 'of the requests asked and given should not have been given. For instance, the second request given states that, if Mrs. Boldman notified the guardian, 14 days after Mrs. Leng went to her house, that she did not feel that she could keep her longer for a dollar a day, that would not be equivalent to a direct notification that she would not, keep her at that price. This stated the law more favorably to the estate than it was entitled to. The testimony shows that it was arranged between Dr. Jenks and the Boldmans that, if they found they could not keep Mrs. Leng for one dollar a day, they were tp give one week’s notice of that fact. They claim they did give that notice, and that Dr. Jenks did not take her away. This Request, therefore, should not have been given. We find nothing in the general charge calling for criticism.

We think theré is no error in the record of which the estate can complain.

The judgment must be affirmed.

The other Justices concurred.


text:
    HARRINGTON v. HALL.
    Lease — Assignment — Consent op Lessor — Lease to Third Party.

       Where a lease is nontransferable without the written assent of the lessor, and the lessees have transferred the lease and surrendered possession to the assignee, and the lessor has verbally assented to it, and has received advanced rent from the assignee through the lessees, and has rented the property to a third person, the assignee can recover the rent advanced.
    Error to Berrien; Coolidge, J.
    Submitted May 7, 1901.
    Decided May 21, 1901.

      Assumpsit by Lloyd B. Harrington against Charles W. Hall for money had and received. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Defendant, through his agent, one Whitman, leased to the firm of Morris & Simpson, copartners, a livery barn. The lease was nontransferable. Morris & Simpson sold theii; business to plaintiff. Plaintiff knew of the provisions of the lease. Whitman declined to receive the rent direct from plaintiff, but plaintiff paid it to Morris & Simpson, and Morris & Simpson paid it to Whitman, and it was thus paid from January 18th to April 3d. On the latter date plaintiff and Morris & Simpson went to Mr. Whitman, and, after some conversation, plaintiff paid $90, the amount of rent from that date to the expiration of the lease, to Morris & Simpson, taking their receipt-therefor, and Morris & Simpson paid the rent to Whitman, and took his receipt. There was evidence tending to show that Whitman raised no objection to the transaction so long as the rent was paid. Plaintiff testified that he subsequently met the defendant, told him what he had done, showed him the receipt, and asked him if he had received the money; that defendant replied it was all right. On April 7th defendant executed a written release to Morris & Simpson, releasing them from further covenants under the lease. He then refused to recognize any right of plaintiff to the premises, and leased them to another party. Plaintiff demanded the return of his $90, and, upon refusal, brought this suit.

      Weldon Bros., for appellant.

      Cady, Andrews & Murdoch, for appellee.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). This case was submitted to the jury upon the theory that, if Harrington paid the money to Morris & Simpson, and they turned it over to Whitman with the understanding that plaintiff was to occupy the premises, the defendant is liable. Defendant, Hall, was not sworn as a witness, and there is no contr&diction of plaintiff’s testimony that, after plaintiff had informed him what he had done, he assented to it. We think that, under the undisputed testimony in the case, plaintiff was entitled to recover. It is therefore unnecessary to discuss the alleged, errors. On the basis that it was a proper case for a jury, we find no error in the instructions or ruling of the judge.

Judgment affirmed.

The other Justices concurred.


author: Moore, J.

text:
    COREY v. WALDO.
    Homestead — Exemption.
    A married woman owned a house and lot, where she lived with her husband, neither having any other home. The lot' was condemned by the city in street-opening proceedings, and an award of damages made to the wife, who thereupon borrowed money on an assignment of the award, and with it made a part payment on a lot for a new home, the contract being taken in the name of the husband. The second lot was vacant and unimproved, and so remained for 14 months after the purchase, when it was levied on by an execution creditor of the husband. After the levy, the wife bought the house on the first lot from the city, the parties having in the meantime continued to reside therein, and it was moved onto the new lot. Held, that such lot was exempt from execution as a homestead.
    Appeal from Wayne; Waite, J.
    Submitted May 7, 1901.
    Decided May 21, 1901.

    Bill by Lorenzo Corey against George H. Waldo, James D. Candler, Maria L. Candler, John Wesley, and Georgiana Wesley in aid of execution. From a decree for complainant, defendant Waldo appeals.
    Reversed.

      Palmer & Palmer (B. D. York, of counsel), for complainant :
    A homestead cannot exist in intention alone; there must be some sort of occupancy. Stanton v. Hitchcock, 64 Mich. 316 (31 N. W. 395, 8 Am. St. Rep. 821); Lawrence v. Morse, 122 Mich. 269 (80 N. W. 1087); Smith v. Kidd, 123 Mich. 193 (81 N. W. 1092). And a family can have but one homestead at the same time. Wheeler v. Smith, 62 Mich. 373 (28 N. W. 907); Kruger v. Le-Blanc, 75 Mich. 424 (42 N. W. 853); McMonegal v. Wilson, 103 Mich. 264 (61 N. W. 495).

      Ignatius J. Salliotte, for appellant.
   Moore, J.

April 11, 1900, complainant obtained a judgment in the Wayne circuit court against George H. Waldo and Alden M. Varney. On the 12th of April, 1900, an execution was issued, and a levy made upon a 42-foot lot in Detroit. On the 13th of April, 1900, this case was commenced, and is a bill filed in aid of execution. Mr. Waldo filed an answer to the bill, in which he disclaimed any interest in the land levied upon, and asserted it was the property of his wife, bought by her for a homestead, and claiming the benefit of a homestead, even if the interest in said land belonged to him. The Wesleys also answered, stating they were aware, at the time the sale of the land was made, that Mrs. Waldo furnished the money paid thereon. The case' was heard, and a decree rendered in favor of complainant, from which decree Mr. Waldo has brought the case here by appeal.

The facts are not in dispute. Briefly stated, they are as follows: Prior to May, 1898, Mrs. Waldo had been the owner for some years of a house and lot in the city of Detroit, where she, with her husband and family, resided. It was the only home she and her husband or either of them possessed. The city of Detroit desired to extend Second avenue north to the city limits. The house and lot owned by Mrs. Waldo stood in the way of this extension. Proceedings were commenced by the city to condemn this lot for the opening of Second avenue. There was a mortgage ■upon the lot. The land was condemned. Mrs. Waldo was awarded $2,341.68, and the mortgagee $2,248.58. This judgment was confirmed by the court June 6, 1898. On account of some delay in collecting the taxes, the amoúnt awarded to Mrs. Waldo was not paid over at once. When the judgment against her property was confirmed, Mrs. Waldo began at once to look for a lot upon which she ■could establish another home. She expected the city, having no use for the house in which she had lived so long, would sell it, and that she might become its purchaser, and move it upon the lot which she might buy. In case she did not buy the house, she expected, with the proceeds of the award, to build a new house. She found a lot that suited her, and, not having the money to pay for it, as the award to be paid by the city had not been paid to her, she arranged with Mr. Butzel to loan her $500, and assigned to him as security the judgment which had been awarded to her, and also authorized him to deed the property which had been condemned to the city. This, instrument was executed December 3, 1898, acknowledged, and filed in the office of the city controller. With the money obtained from Mr. Butzel, Mrs. Waldo purchased a lot, which was deeded to her. This lot adjoined other lots owned by clients of a real-estate firm in Detroit, who greatly desired to possess it, to go with the lots, they owned. An arrangement was then made that this, lot should be deeded by Mrs. Waldo, and the proceeds, used as part payment for the lot involved in this litigation, which was then owned by Mr. Candler, which, lot also had a mortgage upon it. Mrs. Waldo realized from a sale of the lot a balance of $738, which was applied on the payment for the Candler lot. She had not yet received through Mr. Butzel the amount awarded her by the city, and the real-estate agents arranged with Mr.. Wesley to loan upon the lot which was owned by Mr. Candler $950. To secure this loan, the arrangement was, the Candlers were to deed the lot to Mr. Wesley, and he was to give a contract to convey the land upon the-payment to him of the $950 and interest. The Candlers and Mr. Wesley all knew the lot was to be obtained for the purpose of making a home for the Waldos, and they also knew that the funds to purchase the same came or' were to come from Mrs. Waldo. Mr. Candler made a. deed of the land to Mr. Wesley, and a contract was drawn running from Mr. Wesley to Mrs. Waldo. It was presented to Mr. Wesley for signature, .and he declared he did not want to deal with a woman, and insisted that Mr. Waldo should sign the contract, and that it should run to him, but agreed that, when $300 should be paid on the contract, it might be assigned by Mr. Waldo to any one.. .Mrs. Waldo was not present when this arrangement was made, though there is testimony which indicates she knew of the arrangement shortly thereafter, and acquiesced in it. The deed from Candler to Wesley and the land contract were made February 14, 1899. The land contract was not acknowledged, and was not recorded. Of the money received from Mr. Wesley, $615 was paid to the holder of the mortgage upon the Candler lot, and the balance was paid to Mr. Candler. The Candler lot was valued at $1,688 in the transaction, and, when the levy in this case was made, there was unpaid to Mr. Wesley $950 and some interest. In April, but after the levy was made, the Waldos put out a willow hedge, and still later Mrs. Waldo purchased the house from the city, and while the Waldos were still living in it the house was moved upon the lot in question.

Two claims are made by counsel why the decree should not stand: First, the lot levied upon was a homestead; second, that Mrs. Waldo owned the property. We think it necessary to discuss only the first of these questions. It has always been the policy in this State to secure, so far as possible, for every family, a home, which should inure to the benefit of the entire family. A provision intended to bring about such a result was put into the Constitution. Article 16, § 2. As long ago as 1848 a statute was enacted for the same purpose. 3 Comp. Laws 1897, § 10362. This constitutional provision and the statutory enactment have frequently been construed by this court. In Barker v. Rorabeck, 36 Mich. 399 (Justice Cooley speaking for the court), it was said provisions exempting a homestead from execution are to be liberally construed, especially where the exemption is restricted within limits so very moderate as those prescribed in this State. See, also, Reske v. Reske, 51 Mich. 541 (16 N. W. 895, 47 Am. Rep. 594); Deville v. Widoe, 64 Mich. 593 (31 N. W. 533, 8 Am. St. Rep. 852); Mills v. Hobbs, 76 Mich. 122 (42 N. W. 1084); Lamont v. Le Fevre, 96 Mich. 175 (55 N. W. 687). In Reske v. Reske, Justice Cooley uses the following language:

“The question now is whether, on the facts recited, the lot had become a homestead, in a legal sense, before the levy was made upon it. We are of opinion it had. The lot, as has been said, was procured for the purposes of a home; and complainant, aided by the industry and frugality of his wife, was proceeding to make it such as rapidly as their limited means would permit. They inclosed it; they had their domestic animals upon it; they came to live in the immediate vicinity; they made a well;, and they put up outbuildings. Everything but the dwelling proper had been erected before the levy was made,, and complainant was bargaining with a builder for a house. If anything was’ lacking to make the lot a homestead, it was because the poverty of complainant had precluded his advancing his improvements as rapidly as he desired. The lot, however, in the minds and hearts of' complainant and his wife, had been appropriated as a home from before the day of their marriage. It was-all the home they had. It represented all their scanty means, and was the center of their domestic hopes and aspirations. They did not, as yet, sleep upon it, or take their meals upon it; and, probably if they had done this-in some of the buildings already constructed, their right to claim a homestead would not have been disputed. But this is not an indispensable condition. The man who-buys a home which is all ready for occupancy cannot have it taken from him as he is attempting to move in his goods, because he has not yet eaten or slept within it. Any one might be deprived of a homestead if so narrow a construction of the privilege should prevail.”

See, also, Bowles v. Hoard, 71 Mich. 154 (39 N. W. 24); Kaeding v. Joachimsthal, 98 Mich. 78 (56 N. W. 1101); Myers v. Weaver, 101 Mich. 477 (59 N. W. 810).

In the case before us, Mr. and Mrs. Waldo were attempting in the utmost good faith, with the proceeds of a homestead of which they had been deprived by the action of the city, to establish a new home. To accomplish this purpose, they were proceeding just as rapidly as the circumstances would permit. There is not a fact in the record that suggests any attempt to deprive any creditor of Mr. Waldo of any right. The facts all show a purpose on the part of the Waldos, when deprived of one home, to establish another. Such a purpose ought not to be defeated by so technical a construction of the statute and the constitutional provision as the complainant contends for.

The decree is reversed, and the bill of complaint is dismissed, with costs of both courts.

The other Justices concurred.


author: Montgomery, C. J.

text:
    BULLARD v. AVERY.
    Husband and Wipe — Title to Personalty — Garnishment — Evidence.
    A husband took certain beans to market, and sold them to a dealer (from whom the wife had previously ascertained the going price), without saying anything about the ownership. The beans were in fact raised on land the record title to which had been in the wife for several years. Held, sufficient to show as a matter of law, in garnishment against the purchaser by a creditor of the husband, that the indebtedness was due to the wife.
    Error to Clinton; Stone, J.
    Submitted May 7, 1901.
    Decided May 21, 1901.
    Garnishment proceedings by Edward J. Bullard against Howard C. Leland and George Brown, as garnishees of Sanford C. Avery. Marinda Avery was brought in as claimant under the statute, and, from a judgment in her favor on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Lewis Severance, for appellant.
    Spaulding, Norton & Looting, for claimant.
   Montgomery, C. J.

The sole question for decision by the circuit was whether the indebtedness of the garnishee defendants was due to Sanford C. Avery or to his wife, the claimant in this case. The indebtedness was for beans grown on a farm the title to which was in Mrs. Avery under a deed duly recorded some years before the transaction took place. The testimony tends to show that Mrs. Avery had made inquiries of the garnishee defendants as to the price of the beans, and that her husband took the beans to market. In making the sale nothing was said by him as to the ownership of the beans, either way. Before he received the pay for them the writ of garnishment was served. The circuit judge was of the opinion that the testimony was all one way, and directed a verdict for the claimant.

We think this conclusion was right. The record of the deed was notice of title. Hedstrom v. Kingsbury, 40 Mich. 636; Campbell v. Remaly, 112 Mich. 214 (70 N. W. 432, 67 Am. St. Rep. 393 ). The only evidence of any holding out of Sanford C. Avery as owner of the personal property consisted of testimony that he acted for claimant in making sales.

Judgment affirmed.

The other Justices concurred.


text:
    SCHOFIELD v. CONLEY.
    Sale — Action for Price — Agency — Disaffirmance of Con tract.

       Plaintiff claims to have sold a team of horses to defendant through defendant’s agent. Defendant claimed a limited agency; that the horses were unsound, were not matched, and not of a color he had instructed his agent to buy. Held:

    1. It was competent to show the physical condition of the horses for a long time previous to the sale, and that while plaintiff owned them he treated them for disease.

      2. Under the facts and circumstances of the case, it was not error to refuse to instruct the jury that there was no evidence of a combination between plaintiff and defendant’s agent to sell the horses to defendant.
    3. Under the facts and circumstances, the defendant acted promptly in disaffirming the contract.
    4. Plaintiff dealt with defendant’s agent at his risk as to the authority of the agent. The statements made by the agent to plaintiff did not bind the defendant.
    Error to Clinton; Stone, J.
    Submitted May 10, 1901.
    Decided May 21, 1901.

      Assumpsit by Benjamin F. Schofield against John C. Conley for the purchase price of a team of horses. From a judgment for defendant, plaintiff brings error.
    Affirmed.
    Plaintiff resides on a farm in Clinton county. He formerly kept a livery stable in St. Johns. The defendant lives in Rhode Island. Plaintiff claims to have sold a team of horses to defendant, through one George Lake, defendant’s agent, at the price of $175. Lake paid $20, and subsequently $12.50. Defendant soon after came to St. Johns, and refused to take the team, claiming that they were unsound, and were not matched, or of a color that he had told Lake he wanted. Plaintiff gave testimony tending to show that Lake had been authorized by defendant to buy horses for him, and that the horses were sound. Defendant gave testimony to support his claim, and tending to show that the sole authority he gave Lake was to take options upon horses, and that he wanted a “pair of chunks,” chestnut, bay, brown, or black. Of the pair purchased, one was a buckskin and the other a gray. Defendant further claimed that there was a fraudulent understanding or scheme between plaintiff and Lake to sell the horses. Verdict' and judgment for defendant.

      Edwin H. Lyon, for appellant.

      jSpaulding, Norton & Dooling, for appellee. ,

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). It was not-error to admit testimony to show the condition of the-horses for a long time previous to the alleged sale, and. that while plaintiff owned them they were treated for disease.

Error is assigned upon the refusal of the court to instruct the jury that there was no testimony of any combination or understanding between plaintiff and Lake to sell the horses to defendant. It is true that there was no-testimony of any conversation between plaintiff and Lake tending to show such a scheme. But we cannot say there-was no testimony tending to establish such a state of facts. Lake had been an employé of plaintiff. There was testimony that the horses were diseased, and had been for some time, and that these facts were known to plaintiff as well as Lake. Lake and defendant were in direct conflict as to the authority conferred upon Lake, and as to-what took place when defendant came to St. Johns! In such case the appearance of the witnesses and the man ner of testifying are important. The inferences were for the jury, and not for the court.

Error is assigned upon the refusal to give the follow ing request:

“If you find from the testimony in the case that, upon a purchase of the horses in question by Lake for Conley, Schofield turned them over to Lake for Conley, and that they remained in Lake’s possession or control until after-the commencement of this suit, and further find that,shortly after the arrival of Conley, Lake informed him that he had purchased the team, then, under the undisputed testimony in the case, Conley must be held to have-affirmed the contract of Lake in all respects, for the-reason that he took no steps to disaffirm or rescind it; and your verdict must be for the plaintiff for the unpaid part of the purchase price, and the interest thereon since the-date of the commencement of this suit.”

This request was properly refused. Under any view taken of the testimony, defendant acted, promptly in dis affirming the contract. According to his own testimony, as soon as Lake showed him the horses he refused to take them. He did not then know Schofield, and had never seen him. The first conversation he had with plaintiff, he refused to take the horses. This was acting with sufficient promptness in disaffirming the contract.

The court refused to instruct the jury that the question was not what powers as an agent defendant actually gave Lake, but what powers he put him in position to assume, and gave the plaintiff to understand that he had. This was properly refused. Plaintiff relied at his peril upon the authority conferred upon Lake. He made no inquiries as to Lake’s authority. If defendant authorized Lake to purchase horses of a certain quality, color, and soundness, this did not authorize Lake to buy horses generally. The statements, if any, made by Lake to plaintiff, were not binding upon defendant. Lake does not testify that he disclosed to plaintiff for whom he was purchasing the horses. All that plaintiff testified to upon the subject was that, when Lake first spoke to him about buying the “buckskin,” he said he was going to buy two or three teams for Mr. Conley. The authority conferred upon Lake was a question of fact, and was properly submitted to the jury.

The judgment is affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    STANTON v. WAYNE CIRCUIT JUDGE.
    Justices of the Peace — Dilatory Appeals — Allowance by ' Circuit Court.
    The provisions of the Detroit justices’ act (No. 460, Local Acts 1895) for the allowance of appeals by the circuit court in certain cases where the amount involved would otherwise pre elude such action confer no discretionary authority with respect to dilatory appeals, but such appeals are governed by the general statute (1 Comp. Laws 1897, § 909), under which, to justify the granting of an appeal after the expiration of the statutory five days, it must be made to appear that the applicant has been prevented from taking the same by circumstances not under his control.

      Mandamus by John J. Stanton to compel Joseph W. Donovan, circuit judge of "Wayne county, to vacate an order allowing an appeal from a justice’s judgment.
    Submitted May 14, 1901.
    Writ granted May 21, 1901.

      Clark, Durfee & Allor, for relator.

      Henry M. Du Bois, for respondent.
   Per Curiam.

This is an application for a writ of mandamus to compel the circuit judge to vacate an order granting an appeal from justice’s court when more than five days had elapsed after judgment. On March 27, 1901, plaintiff obtained a judgment before one of the justices of the peace in the city of Detroit against. 0. T. Rogers & Sons for $36 damages, and $2 costs of suit. Eleven days thereafter defendant moved the circuit court for leave to appeal from said judgment because it was obtained without trial, because it was obtained by unjust and unfair means, and because.the judgment is unjust. The motion was based upon the files and records ■of the justice’s court, and the affidavits attached to the motion. Plaintiff denied that any of the reasons stated in the motion existed. The circuit judge granted leave to make the appeal. It was nowhere stated in the motion, or in the affidavits accompanying the same, that defendant had been prevented from making an application for an appeal within five days after judgment had been rendered, hy causes not under its control.

The justices’ court act of Detroit was construed in Goldhamer v. Wayne Circuit Judge, 107 Mich. 259 (65 N. W. 97), where it was held that the act does not give the circuit court discretionary power to allow an appeal after the lapse of the five days prescribed by the general statute for taking appeals. The general statute provides that appeals may be authorized after the expiration of five days when the party making the appeal has been prevented from taking it by circumstances not under his control. 1 Comp. Laws 1897, § 909. This right is conférred only when the party has been prevented from appealing within the time by circumstances beyond his control. Draper v. Tooker, 16 Mich. 74; Combs v. Saginaw Circuit Judge, 99 Mich. 234 (68 N. W. 71).

The writ of mandamus will issue as prayed.


author: Montgomery, O. J.

text:
    ATTORNEY GENERAL, ex rel. DUST, v. OAKMAN.
    1. Public Officers — Acceptance of Second Office — Vacancy —Eligibility—State Tax Commissioners.
    A person who, while occupying one office, accepts another the duties of which are incompatible with the first, ipso facto vacates the first office; hut his incumbency of the first office does not disqualify him to accept the second, nor by continuing to exercise the duties of the first pending a legal determination of his right to the second does he elect not to accept the second office.
    So held where a city assessor was appointed member of the board of State tax commissioners.
    2. Same — Appointment by Governor — Constitutional Law.
    The office of member of the board of State tax commissioners not being a constitutional one, it was competent for the legislature to fix the term thereof; and hence the provision of section 145 of Act No. 154, Pub. Acts 1899, that a person appointed by the governor to fill a vacancy on the board shall hold office “until the next meeting of the legislature after such appointment, and no longer,” does not contravene section 3, art. 8, of the Constitution, vesting in the governor the power of appointment to fill a vacancy in “any State office.”

      3. Same — Confirmation by Senate — Reconsideration.
    Where the State senate concurred in a nomination to office made by the governor under a statute vesting the power of appointment in him “by and with the advice and consent of • the senate,” it had power at the same session, before any action on the vote had been taken, to reconsider its vote, and refuse to consent to the appointment, since in concurring in such appointment it exercised a legislative function, revocable under the rules governing that body, and not a quasi executive function, incapable of revocation when once exer cised.

      Quo warranto proceedings by Horace M. Oren, Attorney General, on the relation of William T. Dust, against Bobert Oakman, to determine the title to the office of member of the board of State tax commissioners.
    Submitted May 14, 1901.
    Judgment of ouster entered May 21, 1901.

      Horace M. Oren, Attorney General (H. M. & D. B. Huffield, of counsel), for relator.

      Jerome W. Bobbins (Fred A. Baker, T. E. Tarsney, C. D. Joslyn, Allen B. Morse, and Benton Hanchett, •of counsel), for respondent.
   Montgomery, O. J.

This controversy involves the title to the office of member of the board of State tax commissioners. The relator’s title is asserted under an appointment by the governor, duly confirmed by the senate, on February 13, 1901, for the term ending December 31, 1904. The respondent claims 'title under an appointment made December 18, 1899, for the same term, which appointment, he alleges, was, on the 3d day of January, 1900,. duly confirmed by the senate. The facts are not in dispute. Before referring to the history of the case in detail, however, we will consider a preliminary question concerning the title of relator.

The plea avers that prior and subsequently to the relator’s appointment he was, and that he still is, exercising the functions and receiving the emoluments of the office of city assessor of the city of Detroit, an office the duties of which are incompatible with those of the office here in controversy, and that by retaining said office he has elected not to accept the appointment of the governor. The relator asserts that this question is not properly raised; but we prefer not to deal with the case in any technical spirit, and consider the question as properly before us. The fact that the relator held the office of city assessor did not render him ineligible to appointment. It is true, he might have made assessments which may be subject to review by the State board. So may a circuit judge, while sitting at circuit, render decisions which are .subject to review by this court; but no one ever supposed that for this reason a circuit judge should be considered as ineligible for election as a member of this court. The ■continued exercise of the duties of the office of assessor of Detroit pending the determination of the relator’s title •stands upon similar ground. The rule is that the acceptance of a second office, incompatible with the one already held, vacates the first. This was held in Attorney General, ex rel. Moreland, v. Detroit Common Council, 112 Mich. 145 (70 N. W. 450, 37 L. R. A. 211). The result of the holding in that case is that, upon acceptance of ■the office relator is now contending for, he will ipso facto vacate the office of city assessor. The title to that office will therefore fail him, but not the title to this. He is not required to sit between two stools. He can have a sitting, but only one.

The respondent’s commission purports to confer the ■office upon him until December 31, 1904, and it is contended by respondent’s counsel that, irrespective of the question relating to the validity of the action of the senate hereinafter referred to, the appointment is valid, for the reason that a vacancy existed in the office, and that, under section 3 of article 8 of the Constitution, the power to appoint to fill a vacancy in any State office is vested in the governor, the only limitation of that power being that, in case the senate is in session, the vacancy shall be filled by and with the advice and consent of the senate; and that, although the statute creating the board of State tax commissioners provides, “In case a vacancy in the office occurs otherwise than by expiration of the term, the governor shall have power to appoint to fill such vacancy at any time, and the person so appointed shall hold office until the next meeting of !the legislature after such appointment, and no longer” (Act No. 154, Pub. Acts 1899, § 145), the power to fill the vacancy for the full unexpired term still exists, as it is not within the power of the legislature to withdraw this authority from the governor. A glance at the statutes shows that the legislative construction of this constitutional provision from the time-of its adoption has been that it related to such State officers as are named in the same article of the Constitution. See 1 Comp. Laws 1897, §§ 1168, 1172. The office in. question is not a constitutional office. It was, therefore, competent for the legislature to fix the term. The term fixed by this act in a certain contingency expires at the convening of the legislature.

The most important question in the case is whether-the appointment of the respondent was regularly and irrevocably confirmed by the senate. On the 3d day of January, 1900, the message of the governor nominating-respondent as a member of the board was before the-senate in executive session. The committee to whom the-nomination had been referred reported recommending-“that the senate advise and consent to the said nomination to office.” The question being on concurring in the-recommendation of the committee, the senate concurred in the recommendation by the requisite aye and nay vote. At the same executive session a motion was made to reconsider the vote “by which the senate advised and consented to the nomination of Mr. Oakman.” The motion to reconsider prevailed. The question then recurring on the original motion to concur in the report of the committee, the senate refused to concur. It will be seen that the question is whether the senate at the same session, and before any action based upon the first vote has been taken, may reconsider the vote by which it has advised and consented to the nomination of the governor.

Rule 40 of the senate provides:

“When a question has been once put and decided, it shall be in order for any member to move the reconsideration thereof; but no motion for the reconsideration of any vote shall be in order unless the bill, resolution, message, report, amendment, or motion upon which the vote was taken shall be in? the possession of the senate; nor shall any motion for reconsideration be in order unless made on the same day the vote was taken, or within the next two days of the actual session of the senate thereafter; nor shall any question be reconsidered more than once.”

It is contended by the respondent that the senate, in consenting to an appointment by the governor, is performing an executive, and not a legislative, duty, and that, when it has once given its consent, it has exhausted its power; and it is further contended that rule 40 has no application. It is conceded by relator, and has been held by this court, following Marbury v. Madison, 1 Cranch, 137, that, when the appointing power has once exercised its functions, it has no power to recall an appointment. See Speed v. Detroit Common Council, 97 Mich. 198 (56 N. W. 570). The question recurs whether, where an appointment or concurrence in an appointment is a subject of action by a deliberative body, that body may, by rules of its own, or acting under usual parliamentary rules, cast a vote upon the subject which is subject to reconsideration; for, if such course is permissible, the appointment is not complete beyond recall until the power to reconsider has been cut off by the lapse of time.

Fortunately, authorities bearing upon' this subject are not wanting, and it only remains to apply them. In Wood v. Cutter, 138 Mass. 149, the school committee of a town had authority to elect a superintendent. The committee voted to elect relator. At the same meeting a motion to reconsider was made, and carried, and the respondent was elected. The language of Holmes, J., is pertinent to this case:

“It begs the question to say that the board had once definitively voted in pursuance of the instructions of the town meeting, and therefore was functus officio, and could not reconsider its vote. The vote was not definitive if it contained the usual implied condition that it was not reconsidered in accordance with ordinary parliamentary practice; and it must be taken to have been passed subject to the usual incidents of votes, unless some ground is shown for treating it as an exception to common rules.”

The ruling in the case cited was reaffirmed in the case of Reed v. School Committee, 176 Mass. 473 (57 N. E. 961).

The case of State v. Foster, 7 N. J. Law, 101, is a leading case on this question. The power to appoint a clerk for the county of Gloucester was vested in a joint meeting of the legislative council and general assembly. At such a session a vote was taken, and a majority voted for relator, but the presiding officer failed to declare the election under the mistaken view that a majority of all members-elect was required, and that a majority of a quorum was not enough to elect. The joint meeting then proceeded to elect respondent. The court determined the case distinctly upon the ground “that all deliberative assemblies during their session have a right to do and undo, consider and reconsider, as often as they think proper, and it is the result only which is done.” It was further said, “So long as the joint meeting were in session, they had a right to reconsider any question which had been before them, or any vote which they had made.” This case was approved in Whitney v. Van Buskirk, 40 N. J. Law, 467, and by the supreme court of Massachusetts in Baker v. Cushman, 127 Mass. 105. The case of People v. Mills, 32 Hun, 459, fully sustains the contention of relator. Also, see Conger v. Gilmer, 32 Cal. 75.

It is not clear that State v. Barbour, 53 Conn. 76 (22 Atl. 686, 55 Am. Rep. 65), in which the majority opinion is claimed to support the contention of respondent, may not be distinguished. That opinion recognizes that a convention or body may determine in advance that a ballot shall not be final; but, however this may be, we are not prepared to assent to all the reasoning in the case. The overwhelming weight of authority sustains the relator’s contention, and we are convinced that the New Jersey and Massachusetts cases are sound in principle.

Judgment of ouster will be entered.

The other Justices concurred.


text:
    CITY OF EATON RAPIDS, for Use of SNYDER, v. STUMP.
    Official Bonds—Actions for Use of Third Persons.
    An action on a bond given by a city marshal to the city cannot be maintained for the use and benefit of a third person, unless expressly authorized by statute.
    Error to Eaton; Smith, J.
    Submitted November 14, 1900.
    Decided June 4, 1901.
    Debt by the city of Eaton Rapids, for the use and benefit of Perry O. Snyder, against F. Marion Stump, as principal, and James B. Bradley and Jay W. Vaughan, as sureties, upon an official bond. From a judgment for defendants on demurrer to the declaration, plaintiff brings error.
    Affirmed.

      Powers & Stine and John M. Corbin (Elmer N. Peters, of counsel), for appellant.

      J. B. Plendee (Bussell C. Ostrander, of counsel), for appellees.
   Long, J.

Defendant Stump, on the 26th day of April, 1898, was duly elected to the office of marshal of the city of Eaton Rapids by the common council. He, as principal, and defendants Bradley and Vaughan, as sureties, executed a bond, running to the city of Eaton Rapids, in the penal sum of $1,000, as required by the charter of that city; the condition of the bond being:

“That if the said F. Marion Stump shall well and faithfully in all things discharge the duties of his said office according to law, and shall faithfully disburse all moneys that may come into his hands by virtue of his said office, then this obligation to be void; otherwise to be and remain in full force and effect.”

This bond was filed in the office of the city recorder and on April 28th Stump qualified and entered upon the duties of his office, and continued to so act as marshal up to the time of the committing of the grievances complained of.

It is charged in the declaration that, while said defendant Stump was so acting as marshal of said city, he did unlawfully beat, bruise, wound, and ill-treat Perry O. Snyder (the person for whose benefit this action is brought), without just cause or process of law, and did, as such marshal, arrest the said Perry O. Snyder and incarcerate him in the lock-up, and did prosecute him, without reasonable or probable cause, and without any legal process or authority therefor, whereby a cause of action did accrue against said F. Marion Stump, who was so acting as marshal of said city, and that afterwards, and on August 25, 1898, an action was brought by Perry O. Snyder against said F. Marion Stump in the circuit court for the county of Eaton to recover damages for the injuries above described, and that afterwards the cause came on to be tried in said court, and the said plaintiff recovered a judgment against the said defendant in the sum of $1,225 and costs of suit; that the judgment remains unsatisfied and unreversed; and that it has not been appealed from. This action is brought on said- bqnd against said Stump and his sureties for the purpose of satisfying said judgment to the extent of the liability of the sureties upon such official bond.

The defendants demurred to the declaration, setting out nine special causes of demurrer. The court below, in sustaining the demurrer, passed upon only two questions, to wit:

1. That an action on the bond could not be maintained for the use and benefit of any one except the city of Eaton Rapids, and that only in its own interest.

2. That the act complained of in the declaration was not such a violation of the terms of the bond as would give rise to an action agaisnt "the sureties.

The plaintiff brings error.

But one question need be discussed, as we are of the opinion that the court below was ‘not in error in holding that an action could not be maintained on the bond except in the interest of the city. The bond was not given for the protection of third parties, but for the protection of the city alone. This bond was never assigned to Mr. 'Snyder, nor has the city ever given any authority to him to bring suit on it. There is no statute in this State providing that such actions may be brought on such a bond, in the interest of or for the benefit of a third party, for damages arising by the act or omission of such appointive officer. Our statutes do provide for actions on official bonds, but suits by third parties on bonds given by appointive municipal officers are not included, and without the aid of some statute no such suit can be maintained. Section 9781, 3 Comp. Laws, provides for the commencement of suits by third parties against sheriffs on official “bonds; and section 9795 provides:

“Suits upon the official bonds of registers of the courts of equity, clerks of the Supreme Court, clerks of counties, registers of deeds of counties, masters in chancery, notaries public, and of all other officers required to give bond to the people of this State, in relation to which no other provision of law is or shall be made, may be prosecuted by any person aggrieved by any delinquency or misconduct of such officers, respectively, and such suits shall be prosecuted, and judgments rendered therein, in the same manner herein prescribed in relation to suits on the official bonds of sheriffs, and with the like effect.”

There are other classes of bonds required by the statute to be given, such as constables’ bonds, which by section 2364, 1 Comp. Laws, make the officer and his sureties liable—

“To pay to each and every person who may be entitled thereto all such sums of money as the said constable may become liable to pay, * * * or on account of any misfeasance of the said constable in the discharge of, or failure of said constable to faithfully perform, any of the duties of his said office.”

A county treasurer gives a bond to the board of supervisors. Section 2535, Id. The bonds of county clerks, sheriffs, county surveyors, notaries public, circuit court commissioners, as well as bonds of other officers, are required by the statute to run to the people. There can be no doubt that on all such bonds the statute gives a right of action against the officer, as well as against his sureties, to any third person who may have a cause of action against the officer for any misfeasance in office. Without these statutes, no right of action on the bond would inure to the benefit of third persons. The bond in this case runs to the city of Eaton Rapids, and not to the people. The rule as stated by Murfree on Official Bonds (§ 504) is as follows:

“The primary object of an official bond is, of course, to protect the interests of the beneficiary named in it,—the State, county, corporation, etc., as the case may be. By statute, however, it is usually provided that bonds given by officers to States and counties shall be available to protect the interests of private persons who may he aggrieved by the breach of such bonds. They cannot be used, however, for these purposes in cases unprovided for by such statutory enactment.”

In State v. Nichol, 8 Lea, 657, the action was brought by third parties on the official bond given by the clerk of' the county court. The court said:

“The bond is given to the State; is intended to enforce the performance of official duties, and to indemnify the public against official delinquency. Such is the plain meaning of its terms, and, from the nature of the case, unless otherwise directed by statute, would be its object. It certainly was not intended to be operative in favor of individual citizens for any wrong done to them by the officer. The State in this case does not complain of his act. It was for its benefit. He may have violated the rights of the citizen, but certainly has not given any cause of suit on his official bond in his favor by such act.”

In Corporation of Washington v. Young, 10 Wheat. 409, it was said by Chief Justice Marshall:

“No person who is not the proprietor of an obligation ■can have a legal right to put it in suit, unless such right be .given by the legislature; and no person can be authorized to use the name of another without his assent given in fact or by legal intendment.”

Counsel for plaintiff, however, cite the case of State v. Norwood, 12 Md. 177, holding that it was not necessary for the plaintiff, before instituting suit upon an official bond payable to the State, to obtain the State’s permission to do so; and this, although there was in the statute which prescribed the bond no specific provision for making the bond payable to the State, or for giving the party interested the right to sue upon it. But that case was decided upon the construction of the statute prescribing the form of the bond. The bond was given to the State, and conditioned that the officer—

“Shall well and faithfully pay over to the treasurer of Maryland all sums of money received by him for the use of the said State of Maryland under the provisions of the constitution of the State of Maryland, or of any law now existing, or which may hereafter be passed, in the manner and at the time limited by such acts, without fraud or further delay, and shall well and truly account for the same with the officer or persons authorized to receive the same, and the duties of his office, and all the other duties of his said office by law imposed, legally, duly, and faithfully shall discharge according to law and the true intent and meaning of the acts of assembly in such case made and provided.”

The object of the suit was to recover on the bond moneys collected as license fees alleged to be due the equitable plaintiffs (that is, the mayor and city council of Baltimore) from Norwood, the clerk of the court of common pleas. The court recognized the rule laid down by Chief Justice Marshall in Corporation of Washington v. Young, supra, but in the course of the opinion referred to a case in 8 Md. 287 (Ing v. State), and quoted from it as follows:

‘ ‘ ‘ The court of appeals held in Kiersted v. State, 1 Gill & J. 231, that the uniform practice for 20 years allowed persons interested to bring suits on bonds taken in the name of the State, although the acts of assembly under which they are required to be executed contain no specific provision for making them to the State, or give to the-party, in language, the right to sue. These references are sufficient to show the suit was properly brought.’”

Continuing, the court said:

_ “The laws which provide for the execution of bonds similar to the one before us do not require them for the purpose of protecting the rights of the State alone. They are also designed to secure the faithful performance of' official duties, in the discharge of which individuals and corporations have a deep interest, and therefore they should have the privilege of suing such bonds for injuries sustained by them through the negligence or malconduct of the officers. Such doctrine in regard to public official bonds we consider, as having been long established in. Maryland, whatever may be the law elsewhere.”

The rule in the above case, it will be noticed, was based upon the construction of the statute fixing the condition of the bond, and the long-established practice in that State-No case cited by the learned counsel for the plaintiff goes further than this. We think the general rule is that no suit can be maintained by third parties on an official bond unless some authority can be found in the statute authorizing it. While the statutes of this State do not in express terms authorize suits by third parties on constables’ bonds, yet the form of the bond prescribed by the statute would undoubtedly be construed as authorizing it. There-is no such provision of the statute in reference to the official bond of the marshal of the city of Eaton Rapids. No- such provision is contained in the charter of the city.

We think the court below was not in error in sustaining the demurrer. In this view of the case, it is not important to discuss the other questions.

The judgment below must be affirmed.

The other Justices concui-red.


text:
    SLINGERLAND v. KEYSER.
    Trial—Requests to Charge—Inapplicability.
    Where the question, at issue was whether a condition in a receipt for a down payment on chattels was inserted before or after its execution, and it appeared that the receipt was drawn for the parties by K., and there was no evidence to ■ show that he did not deal fairly by both parties, it was not1 error to refuse to instruct the jury that they must be satisfied that both parties were fairly dealt with.
    Error to St. Clair; Vance, J.
    Submitted January 9, 1901.
    Decided June 4, 1901.

      Assumpsit by William W. Slingerland and Joseph M. Bradley against Wilhelmina Keyser to recover a down payment on a contract of sale' afterwards repudiated by defendant. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      James L. Coe and E. C. Babcock, for appellant.

      Avery Bros. & Walsh, for appellees.
   Long, J.

Plaintiffs agreed to purchase of the defendant certain household goods and other property used in keeping .a hotel. They paid defendant $25 to bind the bargain, and she gave a receipt for that amount, stating the purchase price, the amount to^be paid down, and the balance “to be secured by chattel mortgage back on stock and furniture.” Defendant refused to carry out the agreement, and plaintiffs instituted this suit to recover the $25. The defense was (1) that the words,'“to be secured by chattel mortgage back on stock and furniture,” were written in the receipt after it was signed, by the defendant, and without her knowledge; (2) that that agreement had been supplanted by another. The case was submitted to the jury, who found a verdict for the plaintiffs. The court very fully and fairly stated the theories of both parties to the jury, and left the questions of fact to them.

The first error assigned is that the court erred in leaving to the jury the' question whether the words above quoted were written in the receipt before or after it was signed, upon the ground that there was no conflict of testimony. There was a fair conflict of evidence upon this point. One Schoolcraft, a witness for the plaintiffs, testified that he saw the receipt before it was signed, and was sure that it contained these words.

Error is assigned upon the refusal of the court to instruct the jury: “The testimony in this case shows that Bradley swore that Knapp was acting for plaintiffs and defendant in this same matter, and you must be satisfied that both parties have been fairly dealt with.” There was no occasion in this case for such instruction, as there is no testimony in the record tending to show that Knapp, who drew the receipt, did not deal fairly with both parties.

Some other questions of minor importance are raised, but we find no error in them.

Judgment affirmed.

The other Justices concurred.


text:
    BROOKS v. SULLIVAN.
    Mortgages—Duress—Appeal.
    A bill to set aside á mortgage on the ground of duress, held, on a review of the evidence, to have been properly dismissed.
    Appeal from Branch; Yaple, J.
    Submitted January 30, 1901.
    Decided June 4, 1901.
    Bill by Amanda Brooks against James C. Sullivan, survivor of himself and Michael H. Brooks, to set aside a mortgage. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Leonard F. Humphrey, for complainant.

      M. A. Merrifield and Milo D. Campbell, for defendant.
   Long, J.

Complainant filed her bill in this cause to set aside a mortgage given by herself and husband, Michael H. Brooks, to defendant James C. Sullivan on 10 acres of land owned by the husband, which mortgage complainant alleges in her bill was obtained by duress. It appears that complainant and her husband lived for many years on this 10 acres of land, about a mile from defendant Sullivan. For some years Mr. Brooks was in the habit of borrowing money from Sullivan, and Sullivan signed notes with him at the bank. In April, 1900, for the purpose of securing Sullivan for some of these notes, Brooks gave him a mortgage of $270.83 on five acres of this land. This mortgage was not signed by Mrs. Brooks. Brooks thereafter became further indebted, and in 1892 gave Sullivan a chattel mortgage of $146.50. Mr. Sullivan was informed that the real-estate'mortgage was void, because not signed by the wife; the premises being a homestead. Thereupon Sullivan procured the mortgage in controversy, of $515.30, upon the 10 acres, to be .made and executed by Brooks a,nd his wife, and which is now sought to be set aside.

The complainant’s claim is that Sullivan procured a lawyer and another man to go with him to her house for the purpose of procuring the mortgage; that, arriving there, Sullivan called Mr. Brooks out the door, and, after some conversation, the attorney entered the house with him, and there the husband, in the presence of his daughter and the lawyer, stated to complainant that he (Brooks) had disposed of the property covered by the chattel mortgage which Sullivan held against him, and thereby had, made himself liable to imprisonment, and that, if he did not give a mortgage signed by her, they would send him to prison; and, fearing that her husband would be sent to prison, she signed the mortgage. Defendant Sullivan testified that the attorney did not go into the house with Brooks, but that he went in with him and a man by the name of Austin, and that no such conversation was there ' had; that Brooks came to the door, had a talk with him about the mortgage, returned to the house saying he would see if Mrs. Brooks would sign it, and returned shortly afterwards saying she would sign it; that the parties then all went into the house, when the mortgage was drawn and signed. It appears that the mortgage was recorded on the same day as given. The complainant and her husband after that gave a quitclaim deed of the premises to their daughter, who some time afterwards deeded to the complainant. After this proceeding was commenced Mr. Brooks died. On the hearing below, the court dismissed complainant’s bill.

The question involved is purely of fact. We are satisfied that no duress is shown, but that the mortgage was. voluntarily executed by the wife as well as by the husband. The court below reached the right result. It would profit no one to set out at length the testimony given in the case. The court below saw the witnesses, and the opinion of that court has great weight with us in reaching the determination we have.

The decree below must be affirmed, with costs.

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


author: Montgomeby, C. J.

text:
    PLAUT v. BILLINGS-DREW CO.

    Fraudulent Conveyances—Formation oe Corporation.
    A transfer of property by a debtor to a corporation which, he has assisted in organizing, in exchange for shares of its capital stock of equal value, is not void as to his creditors, since the property, in its new form, is still subject to levy and sale to satisfy their claims.
    Error to Wayne; Hosmer, J.
    Submitted February 1 1901.
    Decided June 4, 1901.
    Garnishment proceedings by Leopold Plaut and Herman Plaut, copartners as L. Plaut & Co., against the Billings Drew Company, as garnishee of Pulaski A. Billings. From a judgment for plaintiffs, defendant brings error.
    Reversed.
    Immediately prior to February 10, 1898, Pulaski A. Billings and Walter B. Drew, both of Detroit, had separately, not as partners, for a long time been engaged in selling house fixtures, including wood mantels, grates, gas and electric light fixtures, and other articles pertaining thereto. Billings had his store and stock of goods on Woodward avenue, and Drew his on Miami avenue, Detroit. They came together and agreed to organize a corporation, and to transfer to it their respective stocks of goods; Billings his at a valuation of $29,000, and Drew his at a valuation of $6,000. On February 10, 1898, the corporation, known as the “Billings-Drew Company,” was organized under Act No. 232, Pub. Acts 1885, with a paid-up capital stock of $35,000. The organization was effected by Billings, Drew, and one Thomas Drew. The shares of capital stock, of $10 each, were divided as follows: Billings, 2,899; Drew, 600; and Thomas Drew, 1, •which Billings gave him. George W. Radford was elected president, «Walter B. Drew vice-president, and Billings secretary and treasurer. The articles of incorporation were filed February 12, 1898. The two stocks of goods were transferred to the company, and moved into the University Building, on Wilcox street, near Woodward avenue, where the company did business. Billings transferred a portion of his stock to the Citizens’ Savings Bank as security for an indebtedness owing to the bank, and also as security for an indebtedness incurred to the bank by the Billings-Drew Company. The company did not assume the indebtedness of either Mr. Billings or Mr. Drew. Plaintiffs (appellees) seek to sustain this suit on the theory that the organization of the Billings-Drew Company, and the transfer thereto by Billings of his stock of goods, and the issuing to him therefor of the corporate stock of said company, were acts committed by Billings with intent to hinder, delay, and defraud his creditors, .and therefore, as to them, void.

      Barbour & Bexford, for appellant.
    Bowen, Douglas & Whiting (Anderson & Bach-ham, of counsel), for appellees:
    Cited Bennett v. Minott, 28 Or. 393 (39 Pac. 997, 44 Pac. 288); Kellogg v. Bank, 58 Kan.,43 (48 Pac. 587, 152 Am. St. Rep. 596 ); Buell v. Bope, 6 App. Div. 113 (39 N. Y. Supp. 475); Bank v. Trebein Co., 59 Ohio St. 316 (52 N. E. 834); Bank v. Newton, 25 App. Div. 62 (48 N. Y. Supp. 1009); Kingman & Co. v. Mowry, 182 111. 256 (55 N. E. 330, 74 Am. St. Rep. 169); Benton v. Manufacturing Co., 73 Minn. 498 (76 N. W. 265).

       Rehearing denied November 4,1901.

   Montgomeby, C. J.

(after stating the facts). We are not able to distinguish this case from Scripps v. Crawford, 123 Mich. 173 (81 N. W. 1098). In that case it was held that the transfer of property to a corporation of which the transferror is an organizer, and the acceptance of stock for the full value of the property, could not work an injury to creditors, as the property, in its new form, is still subject to levy and sale to satisfy the creditors’ debts. See, also, McLellan v. Detroit File Works, 56 Mich. 579 (33 N. W. 331).

The judgment will be reversed, and a new trial ordered.

The other Justices concurred.