text:
    HEETHUIS v. KERR.
    1. Taxation — Judgment—Collateral Attack — Quieting Title— Description.
    Where a decree of the circuit court established the validity of a certain tax, a deed based thereon could not be attacked collaterally, in a suit to quiet title, because of a change in the description of the premises authorized by Act No. 271, Local Acts 1903.
    2. Deeds' — Construction—Reservation of Alley.
    Where a deed reserved “12 feet in rear of said lot for a public alley,” and there was no evidence of any use as a public alley, the language in the deed being taken most strongly against the grantor, held, that no interest in the premises except, perhaps, as one of the public, was intended to be retained by the grantor.
    3. Taxation — Notice to Redeem — Process—Return—Substituted Service.
    Section 140 of the tax law (1 Comp. Laws, § 3959, 1 Comp. Laws 1915, § 4138) providing for personal notice if possible to the original landowner, and, if not, by substituted service by publication for four successive weeks, and section 141 (1 Comp. Laws, § 3960, 1 Comp. Laws 1915, § 4139) providing that the landowner may redeem within six months after service of such notice, being construed together, held, that while the personal service provided for was not complete until the sheriff’s return was made and filed, there is no good reason for holding that the sheriff must both make and file his return before proceeding with the substituted service by publication.

    4. Same — Publication—Redemption— Description — Sufficiency of Notice.
    Where the notice to redeem from the tax sale was published in a newspaper published and circulating in Muskegon county, Mich., described the land as “Lot 1, block 264, of the city of Muskegon, according to the revised map of said city, approved April 9, 1903, and recorded in the office of the register of deeds for Muskegon county,” gave the business address of the person giving the notice as “Muskegon, Mich.” and was addressed to the proper persons, held, a sufficient notice to advise interested persons of the county and State within which the land was located.
    5. Same — Redemption—Sufficiency of Notice — Test.
    The test of the sufficiency of such notice is whether, any of the persons to whom it was addressed, reading it, would ’ be sufficiently advised of all the facts which the statute requires the tax title holder to make known to them.
    6. Same — Redemption — Personal Service — Careful Inquiry — Contradicting Return.
    The sheriff’s return that he made careful inquiry to discover the whereabouts of the owner of the land before making notice by publication, is not jurisdictional, and was therefore open to question.
    7. Same — Evidence—Diligence of Officer.
    It not being required that every possible source of information shall be examined by the officer seeking to learn the whereabouts of the landowner, evidence examined, and, held, to show a reasonable effort to discover his whereabouts.
    8. Same — Redemption — Notice by Registered Mail — Answer —Chancery Rule.
    Where complainant in his bill alleged service of notice by registered letter, and defendant in his answer did not explicitly deny said service, or allege want of knowledge sufficient to- form a belief, as required by Chancery Rule 10, subd. d, complainant was warranted in relying upon the answer.
    9. Same — Tax Deed — Validity of Proceedings to Perfect Title.
    In a suit to quiet title to land acquired by tax deed from the auditor general, where complainant had perfected his title and right to possession by performance of the conditions upon which he took his deed, he was entitled to a decree.
    Appeal from Muskegon; Sullivan, J.
    Submitted October 25, 1916,
    (Docket No. 87.)
    Decided March 29, 1917.

      Bill by Jacob E. Heethuis against William F. Kerr, Charles W. Kerr and others to quiet title to certain real property. Glenn M. Porter and William A. Wyman were later substituted for defendants Kerr and allowed to file an answer and cross-bill. From a decree for plaintiff, defendants bring case-made.
    Affirmed.

      McFarlan & Wilson, for appellants.

      Cross, Vanderwerp, Foote & Ross, for appellee.

       On who is entitled to notice to reedem from tax sale, see extensive note in 44 L. R. A. (N. S.) 666.

   Ostrander, J.

The bill in this cause was filed January 4, 1912, to quiet title to certain premises in the city of Muskegon, Mich. The parties made defendants were William F. and Charles W. Kerr, the National Savings & Loans Association, John F. Breden and Antha D. Keys. It is charged in the bill that on May 1, 1906, complainant was purchaser at the regular tax sale held in Muskegon of premises .described as lot 1, block 264, of the revised plat of the city of Muskegon, for the taxes of the year 1903, that said premises are also known as lot 1, block 46, of Sanford’s addition to the village (now city) of Muskegon; that the land was hot redeemed from said tax sale and the auditor general issued to complainant a tax deed therefor, dated May 18, 1907.

It is charged that notices, as required by law, were given of the said purchase and of the right to redeem therefrom, the manner of making service being set out, and that the said giving of notice was complete November 29, 1907, six months from which date, no redemption having been made, complainant entered into possession of the premises, remained there in peaceable occupancy of them, paid the taxes for the years 1904 to 1910, inclusive, and erected a dwelling house thereon. Defendants Kerr are made defendants because they are grantees in a recorded deed of the premises, dated May 17, 1889, the loan association because it is a mortgagee in a mortgage of record, dated February 28,1894; defendant William F. Kerr appears of record to be also a mortgagee in a mortgage dated January 4,1894; John F. Breden is a grantee in a deed dated November 13, 1883. It is charged that defendant Antha D. Keys is grantee of the premises in a tax deed executed by the auditor general May 26, 1905, for taxes for the year 1901, said deed being recorded April 14, 1909, and she is grantee in another deed of the premises executed by the auditor general May 14, 1906, for taxes for the year 1902, the deed being recorded April 14, 1909. It is further charged that, as appears of record, said Keys gave notice, as required by law, of her said tax deeds and of the right to acquire her title to the defendants Kerr and the National Savings & Loan Association; proof of service of said notice being recorded. Complainant charges that the said several deeds, other than his own, mortgages and record of service of notice by said Keys, constitute a cloud upon the title to said premises and upon complainant’s title, and prays for a decree quieting his title and for general relief. Antha D. Keys answered the bill, there was a hearing and a decree, made November 2, 1912, favorable to complainant, an appeal by Keys, and an affirmance of the decree by this court June 1, 1914. 180 Mich. 520 (147 N. W. 584).

Certain alleged infirmities in the giving of notice of redemption by complainant were relied .upon by the appellant, and it was held, by a majority of the justices, that the appellant could not have any advantage of said alleged irregularities because she was not of the class entitled to notice, distinguishing White v. Shaw, 150 Mich. 270 (114 N. W. 210). Defendants Kerr were not personally served with process, but were brought in by publication, and after the said affirmance of said decree, and with knowledge thereof, defendants Porter and Wyman looked up the Kerrs for the purpose of buying, and did buy, for about $35, the interest of the Kerrs in the premises, receiving quitclaim deeds thereof, and were admitted to answer and defend in the place of the said Kerrs, an order being entered July 26, 1915, setting aside the former decree as to the Kerrs.

The joint answer of these substituted defendants prays for affirmative relief, and, with the bill and testimony, which was taken in open court, presents the issues, determined in the court below in favor of complainant. They appeal, and contend in this court:

First, that the description of the land in the tax roll and tax deed issued to complainant invalidates the tax.

Second, that no notice to redeem or of the right to redeem was served upon the owner of a portion of the lot described in one deed as a reservation for a public -alley.

Third, that before publication of a notice to bind defendant Charles W. Kerr in place of personal service upon him, the return of the officer that said Charles W. Kerr could not be found should have actually been filed in the clerk’s office.

Fourth, that the description of the premises in the published notice was insufficient.

Fifth, that there was fraud in not procuring personal service upon said Charles W. Kerr and in substituting therefor a notice or service by publication.

Sixth, that there is no proper evidence of service of the notice to redeem upon defendant William F. Kerr.

Seventh, the effect of the former decree is discussed, with the claim that appellants have redeemed from the Keys tax titles.

Eighth, the general equities are somewhat discussed.

The force and effect of these various contentions must be considered, and a considerable reference to the record is necessary.

First. By Act No. 271, Local Acts 1903, approved February 11, 1903, and given immediate effect, it was provided that after the adoption and approval of a certain plat (map) by the common council of the city of Muskegon, it should be the authentic and legal map of the city and stand in the place of all plats of territory included therein and used by the assessing officers in making assessments for and levying taxes. The approval of the city council was given April 9, 1903. The second Monday in April, 1903, fell upon April 13th, and then and ever since property has been listed for taxation and described in tax proceedings in accordance with this revised plat. The property in question is so described as lot 1, block 264, although theretofore it had been known and described as lot 1 of block 46 of Sanford’s addition. An index, conforming with said legislative enactment, filed with the register of deeds of the county and in other public places, showed the descriptions of property appearing on the last preceding assessment roll and opposite to each a description according to the said revised plat. It is said in argument that, there being no provision elsewhere in the act that landowners should be given notice of the changes in the descriptions of their property, there was. no notice, actual or constructive, of the change in name (description) of this property, and the act is unconstitutional in so far “as it attempts to change the names of lots for the purposes of taxation without notice to the owner.” It is said, further, that the lawful description of the piece of property is a property right belonging to the property and inseparable from it, without notice to the owner, and counsel refers to Lewis v. Monson, 151 U. S. 545 (14 Sup. Ct. 424). That was. a case arising in the State of Mississippi, controlled by the local law, which. was followed by the Supreme Court of the United States and presented the case of an owner of property attempting to pay his taxes upon all the property which, he owned, but failing .to do so because, pursuant to a legislative enactment, a new map, subdividing a township, had been purchased, according to which, without knowledge of the owner, the assessor changed descriptions to conform to those in the new map, in consequence of which the owner failed to pay upon one parcel of his land. There is no evidence that the owners of the land in question here ever sought to pay the taxes for the year 1903 or any subsequent year, so that no question of equity as between the owners and the public is involved. Beyond this, there is no question but that the land described in the tax roll for 1903 is the land formerly described as lot 1, block 46, Sanford’s addition. But a complete answer to the suggestion may be made by saying that in this proceeding, and the basis for the issuing of the tax deed to complainant by the auditor general, there is a decree of the circuit court, in chancery, for the county of Muskegon, determining the validity of the particular tax, a decree which cannot be and is not sought to be opened in this proceeding.

Second. It appears in the chain of title that under date November 4, 1902, one Charles F. Latimer- and wife conveyed the premises to Alice Macauley, the said deed excepting out of the description 12 feet in the rear for a public alley. The map to which reference has alréady been made shows no public alley there. The precise description in the deed is said to be:

“Lot 1, block 46, Sanford’s addition, city of Muskegon, 12 feet reserved in rear of said lot for a public alley.”

No evidence is pointed out of any use of this 12 feet as a public alley, and no reason is assigned for holding that the deed» did not-pass the fee to lot 1, block 46. I do not find the deed printed in the record, so that all of its terms and conditions are not before us, but upon what appears it is as reasonable to construe the intent of the grantor to be to convey the fee to the entire lot as to construe it otherwise. In Bolio v. Marvin, 130 Mich. 82 (89 N. W. 563), the clause following the descriptive part of the deed was:

“Saving and preserving, however, from the operation hereof, the road running along the southerly line of said parcels from the said Saginaw turnpike, and the road in the rear or westerly side of said first-described tract.”

The action was ejectment, the successor to the grantee in the deed having fenced in the highway. A judgment having been directed for defendant, this court said that the grant was broad enough to cover the land included in this road; there being not the slightest occasion to include the land in the deed unless some interest was intended to be vested in the grantee. . From the evidence presented, the language in the deed being taken most strongly against the grantor, I think we ought not to hold that any interest in the premises except, perhaps, an interest as one of the public was intended to be retained by the grantor Latimer.

Third. The statute (section 140 of the tax law [1 Comp. Laws, § 3959, 1 Comp. Laws 1915, § 4138]) provides that if the sheriff of the county where any such lands are located shall make a return that after a careful inquiry he is unable to ascertain the whereabouts or the post office address of the grantee named in the last recorded deed or deeds, then such notice as is therein provided for shall be published for four successive weeks in some newspaper published and circulating in the county where such lands are located.

The argument made for appellants is that the sheriff must not only make a return, but file it before publication of the notice can be begun. Section 141 of the tax law (1 Comp. Laws, § 3960, 1 Comp. Laws 1915, § 4139) provides that the original owner of the property shall be entitled to receive a conveyance from the tax purchaser at any time within six months after service of the notice. In Pike v. Richardson, 136 Mich. 414 (99 N. W. 398), it was determined that these two sections of the law should be construed together, the legislative intent being that the two periods should be coterminous, and that when personal service is referred to in section 141, a service completed by the filing of a return was intended, the statute being thus liberally construed in favor of the redemptioner. It is contended that this amounted to a holding that the word “return” in section 140 means return and filing, as if the statute read that if the sheriff of the county where any such lands are located shall make and file a return that after careful inquiry, etc. What the legislature undertook to provide for was a notice to owners and mortgagees of land by personal service, if personal service is possible, by publication if personal service cannot be had. The sheriff charged with service of the notice having made careful inquiry and being unable to ascertain the whereabouts or post office address of any one entitled to notice, and having evidenced the fact in writing in the form of a return, no purpose could be subserved by delaying at all the making of ihe permitted substituted service. No good reason is suggested for holding that he must both make and file his return before proceeding with the publication of the notice, nor does Pike v. Richardson, supra, determine that the word “return” in section 140 means “return and file.” See, generally, Williams v. Olson, 141 Mich. 580 (104 N. W. 1101).

Fourth. Recurring again to section 140 of the tax law and the provision reading: “Then such notice as is herein provided for shall be published,” it is contended that the notice which was published was not the one herein provided for because not giving the county and State within which the land is located. The notice which was published reads in part as follows :

“Description- of Land: Lot 1, block 264, of the city of Muskegon, according to the revised map of said city, approved April 9, 1903, and recorded in the office of the register of deeds for Muskegon county, October 7, 1903. Amount paid $41.33, taxes for the year 1903. Amount necessary to redeem $87.66 plus the fees of the sheriff. Jacob Heethuis.
“Place of business, 237 Pine Street, Muskegon, Mich.”

The entire notice, which in other respects conforms with the statute, was published in the Whitehall Forum, a weekly newspaper printed and circulating in the county of Muskegon. In Tucker v. Van Winkle, 142 Mich. 210 (105 N. W. 607), the notice was held to be defective in the description of the land because the county and State were omitted. Ik was said:

“If the name of the State appeared, the township and range, which are given, would serve to define the land. As it is, the notice fails to show whether the lands are in Michigan or in any one of the many other States, where similar methods of survey have been followed. While the case cited [Williams v. Olson, 141 Mich. 580 (104 N. W. 1101)] indicates that the statute is not to be construed and enforced technically, we are of the opinion that it should furnish means of identifying the land.”

In Curry v. Larke, 153 Mich. 348 (116 N. W. 1075), it appeared that neither the State nor county was given in the description in the body of the notice. It was held, following Tucker v. Van Winkle, to be defective, although there was printed on the backs of the notices served the words, “State of Michigan, County of-,” and in the blank space was written, “Presque Isle.” It was held that the indorsements on the notices were no part of the statutory notice. In G. F. Sanborn Co. v. Alston, 153 Mich. 456 (116 N. W. 1099), the description of land in the notices was like that in Tucker v. Van Winkle, except that in that case the town was described as north and the range as west, while in the notices in question there was a failure to state whether the township was north or south or the range east or west. If appeared, however, that there is no other township or range in the State other than the one described in the notice. But the notices were held to be bad. Morrison v. Semer, 164 Mich. 208 (129 N. W. 1), and McRae v. Barber, 167 Mich. 314 (133 N. W. 12), presented facts like those in Tucker v. Van Winkle, and that case was followed.

In the case at bar, we have a description which gives the city in which the land is situated, with a recital in the'notice that a revised map, according to which a description is made, is recorded in the office of the register of deeds for Muskegon county. The business address of the person who gives the notice, the tax title holder, is stated as being “Muskegon, Mich.,” and the notice is published in a newspaper published and circulating in Muskegon county, Mich. It would seem as if any one reading the notice would be sufficiently advised that the land about which the notices were given was situated in the city of Muskegon, in Muskegon county, in the State of Michigan. In addition to this, the notice was addressed to certain persons, and they were proper persons, who may be supposed to have possessed some knowledge upon the subject of where lands they claimed to own were situated.

The test must be, I think, in the case where such a notice is published in a newspaper, whether any of the persons to whom it is addressed, reading it, would be sufficiently advised of all facts which the statute requires the tax title holder to make known to them, and, so tested, this notice as published was, in my opinion, a sufficient one.

Fifth. It was Charles W. Kerr upon whom the notice was not personally served, and for whose information the notice was published in the newspaper. It is said that the sheriff was negligent in attempting to discover the whereabouts of the said Charles W. Kerr and that his action in returning that after careful inquiry he was unable to ascertain the whereabouts- or post office address of the said Charles W. Kerr was negligent, and upon this subject testimony was given. Margaret O’Donnell, a witness produced for the defendants, testified that she had lived in Muskegon for 36 years and had known the complainant for 20 years; that Charles- W. Kerr was her son-in-law. She testified further that complainant came to see her in July, 1907, to learn where Charles W. Kerr was, and that she told him he was in Manistee; that he asked if he left any papers there and she replied, “No”; asked complainant if he wanted the address, and he replied in the negative; that at that time the said Kerr was •living in Manistee; and that the witness had known where he had been during all the time from 1906 to the time of giving her testimony. Counsel call attention to the fact, but without stating that it appears in the record, that Polk’s directory of Muskegon for the years .1906 and 1907 contains the item, “Kerr,. Charles, Manager Variety Ironworks, residence 10-Fork street.” It appears that the deputy sheriff, to whom the notice was given for service, who lived in the city of Muskegon and had for many years, and who made the return of service, or failure to serve,, the notice in question, testified that on the same day that he received the notices he mailed one to the sheriff of Bay county to be served upon Charles W. Kerr there; that he was later directed to try Wayne county, and did try Detroit, and sent the notice to Detroit on July 12, 1907, for service; that it was returned from Detroit to the sheriff’s office for Muskegon county; and. -that finally, on August 15, 1907, lie made the return that he was unable to find him. He testified also that .he obtained the information that said Kerr was in Bay City, or might be there, from a family by the name of O’Donnell, living on Fork street, in Muskegon ; that he got the information from some one at the O’Donnell house; that after the notice was returned from Detroit he made efforts to locate the said Kerr, but was unable to find him. Upon his cross-examination, the witness was unable to state whether he got the information from the O’Donnells in 1907 or in 1906; that he got information in such cases from different people, from the city directory, and the State ■Gazetteer. “We used to ask everybody we thought would know about people.”

In Williams v. Olson, supra, something was said which is applicable here, as follows:

“Setting aside considerations growing out of the ■difficulties the sheriff would be likely to experience in discovering for himself the truth of the fact stated in the return, and the impropriety of certifying to a fact not within his knowledge, we are of opinion that a, return reciting the fact may be shown to be false, and that actual proper service of the notice may be shown when the return does not recite the fact. The notice and return are in no sense jurisdictional. For this reason, the cases cited by counsel for complainant are not controlling'. But the proper service of notice is a fact which must exist, and must, if questioned, be shown to exist, before the tax title holder is entitled to enter upon the land, to a writ of assistance, or to maintain ejectment. The absence of the fact is therefore also a fact which may be shown in a proceeding begun either by landowner or tax title owner, in affirmance or in avoidance of the tax title and of acts attempted in reliance upon it. It follows, necessarily, that it is open to complainant to question the asserted fact in a proceeding directly affecting the right of the defendants to have possession of the land in question.”

So we might say in this case that it is open to the defendants to prove a false or fraudulent return. We are dealing, however, with official conduct and the testimony discloses, I think, a reasonable effort to discover the whereabouts of Charles W. Kerr.

It is not required that every possible source of information shall be examined by the officer who is seeking to learn the whereabouts of a landowner to whom a notice of this kind is addressed, and it is to be remarked of the testimony in this case that the complainant denies having the conversation testified to by Mrs. O’Donnell.

Sixth. The defendant William F. Kerr was served with a notice by registered mail, he being at the time in Cleveland. The evidence tends to prove that the registered letter was addressed to “Wm, F. Kerr, of Chisholm and Moore Fdy. Co., Cleveland, Ohio”; that the registry receipt returned by the postmaster at Cleveland bore the signature, “W. F. Kerr, per S. K. Wallace.” William F. Kerr, to whom the letter was sent, and whose deposition appears in the record, testified that in June, 1907, he was at Cleveland, in July he was in Muskegon and different parts of Michigan for a period of three weeks, and was in Cleveland in August, and that he did not “receive any notice purporting to be signed by Jacob Heethuis, regarding a tax sale, or any notice signed by Jacob Heethuis, relating to any property”; that S. R. Wallace was head bookkeeper of the Chisholm & Moore Manufacturing Company, Cleveland, Ohio, and had never been authorized by him to sign for registered mail; and that the said Wallace did not deliver to him any registered mail “that he received July 1, 1907.” Complainant, however, relies, in this respect, upon the answer of the defendants. Paragraph 2 of the bill of complaint charges that the sheriff served the notice upon William F. Kerr by depositing the notice in the United States post office in the city of Muskegon in a sealed envelope, registered, with postage fully prepaid, plainly addressed to William F. Kerr, care of Chisholm & Moore Foundry Company, Cleveland, Ohio, and that a receipt for the letter, signed by the postmaster at Muskegon—

“and by each of the said persons, are annexed to said notice and were.made a part of return of the said sheriff thereto, * * * which return and receipts are attached to a notice now on file with the register of this court and to which reference is hereby made.”

Answering this, the appellants say, among other things:

“These defendants admit that a notice, signed by some person unknown to these defendants, but who was not the complainant, was served in relation to lot 1 of block 264 of the so-called revised plat of the city of Muskegon upon John F. Breden, the National Sav? ings & Loan Association, and Wm. F. Kerr, as. set forth in paragraph two of the bill of complaint.”

The answer further sets up that, notwithstanding the return card from Cleveland, Ohio, showing service of a notice upon. William F. Kerr, complainant did not take any trouble to inquire of said William F. Kerr the whereabouts of his brother, Charles W. Kerr, but refused to avail himself of this avenue of information. Chancery Rule 10, subdivision d, provides:

“Every answer shall contain an explicit admission or denial of each allegation in the bill of complaint as to which the defendant has knowledge or belief. But as to matters charged in the bill as to which the defendant avers he has no knowledge sufficient to form a belief, he shall not be required to admit of deny the same, but shall state his want of such knowledge. And every material allegation in the bill to which the defendant shall not make answer shall be taken as admitted by the defendant.”

Complainant was warranted in relying upon the answer.

Seventh. Complainant asserts that the appellants have no standing in this case because the ..Kerrs interest which they claim to have acquired was entirely cut off by the Antha D. Keys tax titles which they failed to redeem from, and that if they claim any interest through Antha D. Keys, it will not avail them, because in the decree first entered in this cause it was adjudged that she was not in a position to question the proceedings by which the other defendants were claimed to have been bound, because she was not one of the class entitled to a notice to redeem. It appears that the said Keys gave to the Kerrs the statutory notice to redeem, and that more than six months elapsed, and that neither of the Kerrs attempted to redeem, and have begun no suit to set aside the Keys tax deeds, and are therefore barred from questioning the validity of the Keys title, which cut off their own title. The question presented upon this record is whether complainant should have a decree quieting his title or whether a decree should be made allowing appellants to redeem therefrom. As against the Keys title, complainant is entitled to a decree quieting his own title. If complainant’s title is required to be re-conveyed to appellants, it would, it is claimed, still appear that it was, in their hands, of no value, because cut off by the Keys title.

The first question necessary to be answered is whether, upon the whole record, complainant is shown to have perfected his title and right to the possession of the land by a performance of the condition upon which he took his deed from the auditor general. If he has, then he should have a decree quieting his title as against all those claiming an interest, to whom, or •to whose grantors, he owed, under the tax law, any duty. It is an interesting, and, in a proper case, it may be an important and controlling question, whether persons who occupy the position which appellants occupy in this case have any right to contest the entry of a decree in complainant’s favor. But here the objections urged against complainant’s right have been answered in his favor, and, without considering the equities, he is entitled to such a decree as was entered in the court below. Complainant will recover costs of this appeal.

Kuhn, C. J., and Stone, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    FIRST NATIONAL BANK OF ALLEGAN v. GRAND RAPIDS & INDIANA RAILWAY CO.
    1. Appeal and Error — Findings of Fact — Review.
    While this court will not reverse the trial court’s findings of fact, when supported by evidence, a finding entirely unsupported by evidence will be considered erroneous in law.
    2. Bills and Notes — Bill of Lading — Banks and Banking— Holder in Due Course.
    Where plaintiff bank received an indorsed bill of lading with a sight draft attached, payable to its order, from a produce dealer for a carload of potatoes sold to a firm in New Orleans, the amount of said draft being placed to the dealer’s credit and checked o&t by him, and the bill of lading and draft forwarded by plaintiff to a bank in New Orleans for collection, plaintiff was a holder in due course, for full consideration, and without notice of any infirmity in the transaction.
    3. Carriers — Order Biel of Lading — Delivery of Goods — Liability.
    In a suit for the value of a carload of potatoes, lost through unauthorized delivery by the carrier, where the bill of lading contained the following language: “The surrender of this original bill of lading properly indorsed shall be required before the delivery of the property,” and it is admitted that the carrier did deliver the property without such surrender, and that it is liable unless plaintiff, through its agent consented to such delivery, evidence examined, and held, insufficient to show that plaintiff authorized such delivery.
    4. Same — Negligence—Ventilation of Car.
    The findings of the court below; that the potatoes were shipped in good condition in a refrigerator car, that instructions were given to the carrier to ventilate the car, and that when they arrived at destination they were in a damaged condition, caused by lack" of proper ventilation, for which the carrier was liable, held, supported by the evidence.

    5. Same — Damages—Measure oe Damages — Market Value.
    The court below, having found that defendant was liable for the value of the potatoes lost because of unauthorized delivery, and also for damages caused by improper ventilation of car, properly adopted as the measure of damages the market value of the potatoes at the time they arrived at destination if they had arrived in good condition; and, held, evidence sufficient to show market value at destination.
    Error to Allegan; Cross, J.
    Submitted October 24, 1916.
    (Docket No. 65.)
    Decided March 29, 1917.
    Assumpsit by the First National Bank of Allegan against the Grand Rapids & Indiana Railway Company for the wrongful delivery of freight consigned with draft attached to bill of lading, heard before the court without a jury. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      James H. Campbell (Elvert M. Davis, of counsel), for appellant.

      Charles Thew, for appellee.

       On. the liability of carrier for injury by failure to adjust ventilators, see note in 15 L. R. A. (N. S.) 801.

   Stone, J.

This is an action in assumpsit, brought by the plaintiff against the defendant as an initial carrier. The subject of the suit is a carload of potatoes, of which plaintiff claims to have been the owner, shipped from Tustin, Mich., to New Orleans, La., about April 12, 1912. The potatoes were loaded at Tustin by E. F. Sherman, the then owner thereof, who lived at that time at Allegan, Mich. They were loaded during a period of a few days previous to April 12, 1912. The potatoes had been grown by farmers in the vicinity of Tustin, from whom they were a short time before purchased by Mr. Sherman, and by him placed in a storage cellar that he had rented. The temperature of the cellar in which the potatoes had been kept after their purchase and before loading in the ear for shipment to New Orleans was kept at 35 to 40 degrees above zero. At the time of loading, the potatoes were sacked in the cellar and hauled two blocks for shipment.

The car in which the potatoes that are the subject of this suit were loaded was a refrigerator car, identified throughout the case as car I. C. 55928, and to prepare it for shipment, one of Mr. Sherman’s employees, who had charge of the loading, put a stove in the car and heated it for 12 hours, that being the period of time usually taken to heat cars being loaded with potatoes in cold weather. After heating the car for this period the potatoes were loaded into it. The weather was moderate when the potatoes were loaded. It was not freezing, but was cold weather. The ventilators on this car were on top. - They were closed when loading and when delivered to the railroad. Two other cars were loaded for shipment to New Orleans about the same time. The car in question left Tustin some-time on April 12, 1912, and arrived at New Orleans during the day of April 20, 1912, and was. placed at the perishable freight sheds of the Louisville & Nashville Railroad Company. The other two-cars, after arrival, were placed in the freight sheds of the Illinois Central Railroad Company. The bill of lading issued to Mr. Sherman, the shipper of the potatoes, by the defendant as initial carrier, was a “uniform order bill of lading,” and the potatoes were consigned—

“to order of E. F. Shérman, destination New Orleans, State of Louisiana, notify Hortman Brokerage Co. at New Orleans, State of Louisiana. • Route Van & I. C.”'

The directions upon the bill of lading were:

“Allow inspection. Keep car ventilated.
“E. F. Sherman, Shipper.”

On the 13th day of April, 1912, the day after the departure of the potatoes from Tustin, Mr. Sherman, who had for a number of years been doing business with the plaintiff bank, indorsed the bill of lading in blank and delivered it to the plaintiff with a draft attached, payable to its order, in the amount of $817.50, drawn on the Hortman Brokerage Company, .New Orleans, La. The plaintiff, on the same day, mailed the draft, duly indorsed, with the bill of lading attached, to the Canal Louisiana Bank & Trust Company,_ at New Orleans, for collection.

There are two counts in the declaration. The first alleges that the defendant, as initial carrier, is responsible under the laws of this State and the United States for the wrongful act of its connecting carriers, and that the Louisville & Nashville Railway Company, the terminal carrier, carelessly, negligently, and improperly delivered the potatoes to strangers, who were not entitled thereto, without surrender to it of the original bill of lading properly indorsed, whereby the plaintiff wholly lost the said goods, etc. The second count alleges that the defendant is liable for failure to keep the car in which the potatoes were being carried properly ventilated, etc.

The case was tried before the court without a jury, and after hearing the testimony and the arguments of counsel it filed written findings of facts and law, in which the defendant was found liable under both counts of the declaration. The findings of law and fact were as follows:

“Plaintiff brought this suit against the defendant, a common carrier, to recover damages for negligence in not taking proper care of freight and for the wrongful delivery thereof.
“Issue was joined and a trial had before the court without a jury.
“April 12, 1912, Mr. E. F. Sherman loaded a car of potatoes at Tustin, Mich., and received from the defendant an order form bill of lading, consigning the goods to himself at New' Orleans, La., with the direction to notify Hortman Brokerage Company of the arrival of the consignment.
“Mr. Sherman drew a draft upon Hortman Brokerage-Company, of New Orleans, for the purchase price qf the potatoes, attached the same to the bill of lading and sold the draft, with the bill of lading attached, to the plaintiff. Plaintiff paid for. the same by crediting Mr. Sherman’s account at. the bank with the amount thereof, viz., $817.50.
“The consignment was loaded in a refrigerator car and was sent over defendant’s lines and connecting lines' to New Orleans. At the time the car was loaded the' weather was cold at Tustin, Mich., and the ventilators were closed and the car properly warmed to protect the potatoes from the cold weather. Instructions were given the defendant to properly ventilate the car as it moved south, where it would encounter warmer weather.
“When the car arrived at New Orleans some of the sacks were soiled and some of the potatoes spoiled.. The consignment was refused, and Mr. Sherman sent, his agent, Mr. Tanner, to New Orleáns, with oral and. written instructions to settle the matter as quickly as possible by making Hortman Brokerage Company-take care of the drafts and by giving a check on Mr.. Sherman for the loss by reason of the spoiled potatoes. The potatoes were sorted and the good ones sold by Hortman Brokerage Company to- J. L. Beer & Co., and delivery was made by the Louisville & Nashville Railway Company without requiring the surrender of the bill of lading, and without the draft being paid.
“Plaintiff accepted and paid for said bill of lading on April 13, 1912, without notice of any equity or claim against some of the goods it covered, and is a bona fide holder for value, and has not* received said sum from the defendant, or any one.
“Plaintiff did not authorize any one to consent tqthe delivery of the potatoes tó any one without first paying said draft and taking up paid bill of lading,, and the Louisville & Nashville Railway Company had no authority from plaintiff to deliver to J. L. Beer & Co. said consignment. On the ‘ contrary, the Louisville & Nashville Railway Company were informed by Mr. Tanner before said delivery, that the bill of lading with the draft attached had been indorsed to plaintiff and was in the Canal Bank & Trust Company in New Orleans for collection, and that he had no authority or control over the same. A wrongful delivery having been made, defendant is liable for the market value of the consignment.
“When the potatoes were loaded at Tustin they were in good condition and were properly loaded. The evidence clearly shows that the condition in which they arrived at New Orleans was caused by the car not being properly ventilated while in transit.
“The defendant is therefore liable to the plaintiff for failing to properly ventilate the car while in transit, for the difference between their actual value on arrival in New Orleans, and the value of the same had ,the car been properly ventilated and the potatoes arrived in good condition.
“The market value of the potatoes at the time they arrived in New Orleans, if they arrived in good condition, would have been $1.53 per bushel, less the freight, making a total net value of $817.50.
“Plaintiff is entitled to recover under both counts in the declaration its damages in the sum of $817.50, with interest at 5 per cent, from April 20, 1912, to date, or $1,051.57.
“It is therefore ordered that judgment be entered in favor of the plaintiff and against the defendant for the sum of $1,051.57, with costs to be taxed.”

Upon these findings judgment was entered against the defendant for $1,051.57 damages, with costs. The defendant, under the rule, prepared the following amendments to the findings:

(1) “The court finds that there was a general oral understanding and agreement between the plaintiff and E. F. Sherman, the shipper of the potatoes and the consignee named in the bill of lading, before and at the time of the indorsement of the bill of lading to the plaintiff by said Sherman, that if the draft attached to the bill of lading was not paid the shipper and the consignee named, Sherman, would eventually pay to the plaintiff the amount of the draft.”
(2) “The court finds that there was an agreement between the plaintiff and the shipper of the potatoes, E. F. Sherman, who was the consignee named in the bill of lading, after the delivery of the potatoes covered by said bill at New Orleans without surrender of the bill of lading and before- the commencement of this action, and during the pendency of this action, that the plaintiff would sue the defendant carrier for the purpose of recovering in this action for the benefit of both Sherman and the' plaintiff, and if its action should fail the said Sherman would pay to the plaintiff the amount of the draft.”
(3) “The court finds that Mr. Tanner was sent by Sherman, the shipper of the potatoes, to New Orleans to dispose of the consignment as speedily as possible, and had authority to dispose of them at once on account of the very warm weather prevailing at New Orleans, and was given authority to settle the matter as quickly as possible, and was authorized, if he could settle in no other way, to give a check for the difference on the car after sorting the potatoes and eliminating the shrinkage, and take up- the drafts.”
(4) “On or about April 23, 1912, and shortly after the departure of Tanner for New' Orleans under instructions from Sherman, and before the potatoes were disposed of and delivered by the terminal carrier, the plaintiff knew of the refusal of the potatoes at New Orleans and the reason given. therefor, and through its officer, Mr. Chichester, took the matter up with Mr. Sherman, and from him received full information concerning the sending of Tanner to New Orleans by Sherman, and knew that Tanner had gone there to dispose of the potatoes and settle the matter, and saw a copy of the letter written by Sherman to Tanner April 20,1912, after his departure, and fully approved of Mr. Sherman’s action in this connection in sending Tanner for the purpose of disposing of the potatoes.”
(5) “That after such information received by the plaintiff from Sherman the plaintiff took no steps to revoke any authority given Tanner by Sherman or to repudiate his agency. On the contrary, plaintiff fully approved of his errand and authority.”
(6) “That Mr. Tanner was the agent of said Sherman, and sent by him to New Orleans on or about April 20, 1912, for the purpose of disposing of the potatoes then in the custody of the carriers at that place ana awaiting disposal by said Sherman because of refusal by the Hortman Brokerage Company, who was notified of their arrival at that point.”
(7) “That at the time the consignment left Tustin, and upon arrival of the same at New Orleans, the consignment had not been sold by Sherman to either the Hortman Brokerage Company or any other person, and there was no completed contract for sale then existing, nor existing at the time Tanner was sent by Sherman to New Orleans.”
(8) “That Sherman was authorized by the plaintiff to represent any interest that the plaintiff had in the potatoes and to control any disposition of them during transit or after arrival at destination, and the plaintiff fully approved and ratified Sherman’s act in sending Tanner to New Orleans, and the authority given him for disposal of the potatoes, and any settlement of the transaction that he might make, because of the immediate necessitv of the disposal of the potatoes.”
(9) “Shortly after his arrival at New Orleans, Mr. Tanner, the agent of both Sherman and the plaintiff, informed the Hortman Brokerage Company of his authority and the purpose of his presence there, and suggested to the Hortman Brokerage Company that it negotiate with Beer & Co. to take the good potatoes that should be left after the consignment was. sorted. The Hortman Company submitted the negotiations proposed by Tanner to Beer & Co., and the proposition was accepted by Beer & Co. Thereafter, with his approval and knowledge, the potatoes were delivered to Beer & Co. after sorting.”
(10) “Mr. Tanner, the agent, was present and ratified the act of the Hortman Company in making sale of the potatoes to Beer & Co.”
(11) “Mr. Tanner and the Hortman Brokerage Company, his brokers, sold the potatoes to Beer & Co. at the prevailing market price at New Orleans, which was $1.20 per bushel.”
(12) “After sorting, the potatoes yielded 27,180 pounds of good potatoes. The gross amount, at $1.20 per bushel, was $542.60. From this amount there was to be deducted freight of $150 upon the consignment from Tustin to New Orleans and the expense of sorting, $15.50, and weighing, $4.87, a total deduction of $170.37, all of which was known and understood and approved by Tanner.”
(13) “After delivery of the potatoes Tanner made no settlement, and did not attempt, to make any settlement, with Hortman Company before he left New Orleans, and did not give or offer to give to the Hortman Company a check to cover the shrinkage, and did not ask or insist upon the Hortman Company taking up the draft.”
(14) “Before departure from . New Orleans, and after delivery of the potatoes, Tanner promised the Hortman Company that he would have Sherman send the bills of lading to the Hortman Company upon his arrival at Allegan.”
(15) “While in New Orleans Tanner took charge of the sorting and weighing of the potatoes, made complaints to the representative of the Hortman Company, his broker, as to the manner of sorting, objected to the help employed, and upon his complaint and with his approval some of the sorting help were discharged by his broker, and Tanner gave away and permitted to be taken away from the sorting shed some of the good potatoes, and while in and about the sorting shed represented himself as the agent of Sherman, and assumed to have and asserted general authority over the disposition of the potatoes.”
(16) “Tanner never informed any person connected with or representing the Louisville & Nashville Ráilroad Company, the terminal carrier, that the potatoes should not be delivered to Beer & Co. without payment of the drafts and surrender of the bill of lading. On the contrary, he represented' himself to be the agent of the owner, and was the agent of the owner, whether the owner was Sherman; or the plaintiff, and delivery was made to Beer & Co. upon his suggestion and with his approval.”
(17) “There is no evidence in the case that the car containing the potatoes was not ventilated during transit, or that the car was not properly handled by the carriers in accordance with the shipper’s instructions.”
(18) “The evidence shows that the potatoes were a perishable commodity, and after arrival at New Orleans and at the time of thé «refusal, and before disposal by Tanner, ‘ were in such condition that it was necessary to make immediate disposal of them, and that if they had not been speedily sold by Tanner through the medium of the Hortman Brokerage Company, his broker, it would have been necessary for the terminal carrier to sell them as perishable property, and because of the excessively warm weather, and the condition of the potatoes, and their perishable character, and their refusal at destination, they were sold by and upon the order of the shipper.”
“Proposed Amendments to Findings of Law.
(1) “This court finds as a matter of law that Tanner was the agent of the plaintiff while at New Orleans, and while engaged in his errand there, and during the sorting and disposal of the potatoes contained in the car in question.”
(2) “That the car of potatoes in question were delivered by the Louisville & Nashville, the terminal carrier, upon the order of the shipper and consignee named and the owner of the potatoes and his and its agent.”
(3) “That by reason of the failure of the plaintiff to repudiate or revoke the authority granted to Tanner by. Sherman, the plaintiff is estopped to deny any authority in Tanner to dispose of the potatoes and to claim that delivery was made to the wrong person.”
(4) “That as a matter of law the potatoes were delivered to the agent of the owner thereof, and no surrender of the bill of lading was necessary, and the delivery of such potatoes to the owner’s agent was a proper and lawful delivery.”
(5) “The court find's as a matter of law that the disposal of the potatoes at New Orleans in the manner disposed of was a necessity, because of their condition and perishable character, and that, to protect the interests of all persons concerned, the delivery was a lawful and proper delivery.”

Of the proposed amendments, No. 1 to the finding of facts was allowed, and all of the others were refused. Exceptions to such refusal were duly filed; also exceptions to the following findings of facts made by the court (and it is alleged that there is manifest error in the same and that the same do not support the judgment):

“(1) That Mr. Sherman sold the draft with the bill of lading attached to the plaintiff.
“(2) That Mr. Sherman gave to. his agent, Tanner, oral and written instructions to sgttle the matter as quickly as possible, by making the Hortman Brokerage Company take care of the drafts, and by giving a check on Mr. Sherman for the loss by reason of the spoiled potatoes.
“(3) That the potatoes were sold by the Hortman Brokerage Company to J. L. Beer- & Co.
t “ (4) That the plaintiff accepted and paid for the bill of lading on April 13, 1912, without notice of any equity or claim against the same or the goods it covered.
' “(5) That the plaintiff did not authorize any one to consent to the delivery of the potatoes to any one without first paying said draft and taking up said bill of lading.
“(6) That the Louisville & Nashville Railway Company were informed by' Mr. Tanner before delivery that the bill of lading with the ¿raft attached had been indorsed to plaintiff and was .in the Canal Bank & Trust Company, New Orleans, ’for collection, and that he had no authority or control over the same.
“ (7) That the condition in which the potatoes were when they arrived at New Orleans was caused by the car not being properly ventilated while in transit.
_ “(8) That the market value of the potatoes at the time of arrival in New Orleans, if .same had arrived in good condition, would have been $1.53, less the freight, making a total net value of $817.50.”
{<{d) And the defendant excepts to the following findings of law made by the éourt and alleges manifest error in the same:
“(1) That as a matter of law Mr. Sherman sold the ¿raft with the bill of lading attached to the plaintiff.
“(2) That the plaintiff is a bona fide holder for value of the draft. - :
•“(3) That as a matter of law the plaintiff did not authorize any one to consent to the delivery of the potatoes to any one without first paying said draft and taking up said bill of lading.
“ (4) That the Louisville & Nashville Railway Company had no authority from plaintiff to deliver to J. L. Beer & Co. said consignment.
“(5) That a wrongful delivery was made by the carriers, and that the defendant is liable for the market value of the consignment.
“(6) That as a matter of law the defendant is liable to the plaintiff, for failing to properly ventilate the car while in transit, for the difference between the actual value of the potatoes on arrival at New Orleans and the value of the same had the car been properly ventilated and the potatoes arrived in good condition.
“(7) That the plaintiff is entitled to recover on both counts in the declaration its damages in the sum of $817.50, with interest at 5 per cent, from April 20, 1912.
“(8) That judgment be entered in favor of the plaintiff against the defendant in the sum of $1,051.57, with costs to be taxed.”
“(e) And the defendant excepts to the finding of facts as made by the court, and alleges that there is manifest error in the same and that the same does not .support the judgment entered in said cause.”

At the close of plaintiff’s testimony the defendant moved the court to enter a judgment for the defendant on both counts of the declaration. This motion was overruled by the trial judge, and exception duly taken.

The defendant has brought the case here for review, and there are 48 assignments of error. To take up and discuss each of these assignments of error, as ■counsel for appellant have done, in their briefs of over 100 pages, would necessitate an opinion of unreasonable length. The record and briefs have received our careful attention, and the assignments of error are principally based upon the exceptions to the refusal to allow the proposed amendments to the findings, and upon the exceptions to the findings of the court. Counsel for defendant, in their main brief, state the rule which they invoke as follows:

“While we do not expect this court to reverse the trial court’s findings of fact, when any of the findings are supported by evidence, we believe a finding entirely unsupported by evidence will be considered erroneous in law.”

Agreeing with counsel in the correctness of this rule, we will proceed to examine the questions involved. We also agree with counsel that the duty and rights of the carrier are well set forth in the recent cases of Nelson Grain Co. v. Railroad Co., 174 Mich. 80 (140 N. W. 486); Turnbull v. Railroad Co., 183 Mich. 213 (150 N. W. 132); Thomas v. Blair, 185 Mich. 422 (151 N. W. 1041).

Counsel for appellant first discuss the question whether the plaintiff was a bona fide owner of the bill •of lading, taking the position that it was not a bona fide owner either of the bill of lading, or of the potatoes covered by it; and it is urged that the plaintiff was no more than a pledgee of the bill of lading, which it held for collection.

Counsel concede that the burden, of proof, to show that the plaintiff was not a bona fide holder, was upon, the defendant in this case. An examination of the. testimony, especially that of Mr. Chichester, as a. whole, satisfies us that the intention of the parties: was that the plaintiff was to become the owner of the: bill of lading. The day following the loading of the car, the draft with the bill of lading attached and indorsed by Mr. Sherman was received by the bank in its usual course of business, and was at once forwarded to the New Orleans bank for collection. Sherman, was in the business of buying and shipping produce,, and he used this draft, and other like drafts, to get money to carry on his business, and in this case the proceeds were placed to his credit in his commercial', account, and he checked out this money and used it.. We think that it must be held that under the evidence the plaintiff took this bill of lading and draft, not only for a full, adequate consideration, paid at the time, but without any notice of any infirmity in the transaction. In fact, there was no infirmity at that time in the title or condition of the property transferred. There was evidence to sustain the findings of the court in this regard. ■ In Turnbull v. Railroad Co., supra, we said:

“It is true that prima facie the consignee is the owner of the goods shipped, but it is equally true, and the rule is well established, that, when there is an order bill of lading outstanding, the carrier delivering the goods without requiring the presentation of the bill does so at his peril, and is liable to a bona fide holder thereof.”

The bill of lading contained this language:

“The surrender of this original bill of lading properly indorsed shall be required before the delivery of the property.”

That the railroad company, the terminal carrier, did deliver the property without such a surrender, is admitted. But defendant claims that the plaintiff, by Tanner, released to the railroad company its right to insist upon this provision, by consenting that the railroad company might deliver the potatoes to a third party without the surrender of the bill of lading. To sustain this defense it should appear that Tanner was plaintiff’s agent with such authority, and that he did so. The court below found that:

“Plaintiff did not authorize any one to consent to the delivery of the potatoes to any one without first paying said draft and taking up said bill of lading, and the Louisville & Nashville Railway Company had no authority from the plaintiff to deliver to J. L. Beer & Co. said consignment.”

This was a finding of fact necessary to sustaining the judgment. Attention is called to that part of the finding relating to the sending of Tanner by Sherman with instructions, oral and written, to settle'the matter as quickly as possible by making the Hortman Brokerage Company take care of the draft and to give Sherman’s check for the loss by reason of the spoiled' potatoes. There was evidence which may be said to be uncontradicted that Tanner’s oral authority was the same as his written authority. Such written authority was contained in Sherman’s letter to Tanner of April 20, 1912, and was as follows:

“Allegan, Mich., April 20, 1912.
“F. E. Tanner,
“New Orleans, La.
“Dear Sir:
“Herewith I hand you invoice for the potatoes sold to Beers & Stick. Please note prices they were sold at and you must insist their taking the potatoes at the prices sold. Of course there has been a big drop in the potato market, but I cannot release them under the purchase price. If potatoes show decay, you will have to discount the amount .of shrinkage. I have been fold that potatoes arriving over the Illinois Central are unloaded in the Illinois Central sheds, and held there until receivers take them. If this is true, and you do not have a chance to see cars they arrived in, inspect the 400 sacks car thoroughly and see if they were frozen in transit. If so, have notation made on freight bill, and the other cars the same. The refrigerators are to be kept ventilated. Have notification made of this. Call on the Hortman Brokerage Company first and learn from them why Beers & Stick refused the car; then insist that the Hortman Brokerage Company and Beers & Stick go over the cars with you and inspect them thoroughly together. You will see by the copy of their wires that they refused the cars on account of all sacks being more or less stained and spotted. Inspect them thoroughly before you make any suggestion. I suppose it is very warm there and stock must be disposed of at once. Settle this matter as quick as possible. Make them take care ,of the drafts and you can give them a check for the difference on each car, if that is the only way you can settle with them.
“Very respectfully,
“E. F. Sherman.”

We think that the findings above referred to were supported by the evidence. The question is, not what authority Tanner had in respect to-sorting, determining the shrinkage of potatoes, and checking against the loss, or to see that the' purchasers or others took them, but whether he had authority to authorize the railway company to deliver them, without taking up the bill of lading. The instructions were:

“Make them take care of the drafts, and you can give them a check for the difference on each car, if that is the only way you can settle with them.”

The interests of the plaintiff and Sherman at that time were these: The plaintiff had its money in this draft secured only by the bill of lading, both in the New Orleans bank, to be given up on payment of the draft. If it could not realize it could look to Sherman. Sherman was interested in the potatoes, by reason of his ultimate liability, and it was “up to him” to have the purchasers, who, he claimed, had ordered these potatoes, take them, and thereby not lose the sale, and not to lose, by reason of shrinkage, any more than possible. The plaintiff was not interested in the method he might use, so long as he brought about the taking up of this draft, and it stood, relying upon its right, that the potatoes could not be delivered by the railway company until this draft was paid. We think that the court was, under the evidence, justified in finding that no one was given authority to allow the railroad company, or any one else, to handle or take over the potatoes contrary to the terms of the bill of lading.

There was evidence to support the finding as to what Tanner actually did with reference to the potatoes. The railroad company was informed by Tanner, before the delivery, that the bill of lading, with the draft attached, had been indorsed to the plaintiff, and was in the bank at New Orleans for collection, and that he had no authority or control over them. Without pursuing this matter further, we are of opinion that the trial court was warranted by the evidence in concluding that there was a wrongful delivery of the goods, and that defendant was liable for the market value of the consignment, as found. There was much contradictory evidence, but with that, upon this record, we are not at liberty to deal.

Upon the second branch of the case the court found that the potatoes were loaded in a refrigerator car, sent over defendant’s line, and connecting line to New Orleans; that when loaded the weather was cold at Tustin; that the ventilators were closed and the car properly heated to protect the potatoes from cold weather; that instructions were given defendant to properly ventilate the car, as it moved south where it would naturally encounter warmer weather; that when loaded at Tustin they were in good condition and properly loaded; and that when they'arrived in New Orleans the sacks were stained, and some of the potatoes spoiled. There was evidence tending to show that the condition in which the potatoes were when they arrived in New Orleans was caused by the car not being properly ventilated while in transit.

We find no error in the measure of damages adopted by the trial court. There was some evidence of the market value at New Orleans supporting the finding.

We think that the findings of the court were sufficient to support the judgment below, and the same is affirmed.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    JACOBS v. QUEEN INSURANCE COMPANY OF AMERICA.
    1. Evidence — Admissions—Fraud—Assignment.
    Declarations of fraudulent intent, made by a vendor after the sale and transfer of the subject-matter, are not admissible against the title of the purchaser, as the transferror is not allowed to disparage a title with which he has already parted.
    2. Same — Insurance—Confession—Hearsay.
    Where the proceeds of a policy of fire insurance covering a stock of merchandise were assigned to the creditors of the insured to satisfy 'their claims against the assignor, and on the trial of an action by them against the insurer it was sought to show that one of the vendors had, subsequent to the assignment, admitted his participation in an attempt to burn the property covered, the trial court properly excluded the evidence as incompetent.
    3. Same — Trial—Former Conviction.
    The trial court has a considerable latitude on cross-examination in permitting questions that are calculated to elicit any information as to the past life and conduct of a witness, and it was not erroneous to permit the plaintiff, in an insurance action, to inquire into alleged former indictments of or charges against one of the important witnesses of the defense although they had not resulted in a conviction.
    4. Insurance — Conditions Precedent to Suit.
    In an action on a policy of fire insurance it was not a defense to the liability of insurer that no demand had been made for an appraisal, as required by the conditions of the policy, until after the commencement of an action which was later discontinued, the demand being then made and a new suit instituted.
    5. Same — Agency—Fraud—Admissions.
    Evidence was not receivable that the insured confessed arson to a witness who was claimed to be agent of the plaintiffs, assignees, where the testimony was insufficient to establish the relationship of principal and agent.
    6. Same — Fraud—Charge.
    There was no error on the part of the trial court ’ in charging the jury that in order to defeat a recovery on the policy the defendant must establish by a preponderance of the evidence that the members of the insured firm committed a gross, wilful, and intentional fraud and committed the crime of perjury in relation to the persons constituting their partnership, since the defense of fraud or false swearing requires actual fraud as a basis and there must be evidence of fraudulent or criminal intent.
    Error to Wayne; Hally, J.
    Submitted October 26, 1916.
    (Docket No. 168.)
    Decided March 29, 1917.
    Assumpsit by Charles L. Jacobs and Alexander Friedman, copartners as Jacobs & Friedman, against the Queen Insurance Company of America upon a policy of insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Stevenson, Carpenter, Butzel & Backus (Thomas G. Long, J. W. Mooney, and R. M. Edmonds, of counsel), for appellant.

      Selling & Brand, for appellee.
   Stone, J.

This is the second appearance of this case in this court. When here before a full statement of the essential facts was made, and will be found reported in 188 Mich., at page 512 (150 N. W. 147).

Upon the first trial a verdict was directed for the plaintiffs, the court leaving to the jury merely- the question of damages. In this court the judgment was reversed and the- case sent back for a new trial, because of error in the failure of the trial court to submit to the jury the question whether the membership of Harry Friedenberg in the firm of D. Littman & Co. had been fraudulently concealed from the insurers, when the several policies were applied for. The case has again been tried, resulting in a verdict and judgment for the plaintiffs. It appeared upon the trial .that upon December 19, 1910, four days after the fire, the policy in suit and two others were assigned by D. Littman & Co. to the plaintiffs for the purpose of securing the pre-existing indebtedness due the plaintiffs from the assured, and to pay some other specified debts of D. Littman & Co., and the balance, if any, to be returned to D. Littman & Co. The amount of the policy in suit was not sufficient to meet the demands to be paid by the assignees, and leave any balance for D. Littman & Co. After this assignment was made one of the assured went to Chicago and engaged the services of one Joseph Clarke to assist in adjusting the loss. Clarke and one of the assured went to Detroit, and after a day or two of negotiations Clarke and said Friedenberg returned to Chicago. On arriving there, and on or about December 22, 1910, it is the claim of the defendant that Friedenberg made a full statement by way of confession of the various acts committed by him for the purpose of collecting the insurance, and went into details in describing the manner in which he and his associates fired this building and destroyed it, together with the stock therein, for the purpose of collecting the insurance. This statement was reduced to writing, and it is the claim of the defendant that it was knowingly and deliberately signed by said Friedenberg, and sworr to on or about December 23, 1910. It appears that thereafter the man Clarke was sent to prison upon conviction of the crime of arson, and was later paroled. After his release on parole the so-called confession came into the hands of the insurance companies. This alleged confession appeared in the former record and was used as the basis of a motion for a new trial. Upon the last trial of the case the said Friedenberg was cross-examined at length in regard to said statement, he denying that he had made it or knowingly signed it, and said alleged confession was at first admitted in evidence as substantive testimony. Later, however, and before the close of the case, the court held that, inasmuch as the statement was signed by Friedenberg after the present plaintiffs had become the owners of the policy in their own right and in the right of other creditors, the document could not be used as substantive evidence, and could only be used for purposes of impeachment. The ruling of the trial court in this regard was duly excepted to by the defendant, and it raises what, in our judgment, is the principal question in the case.

There was a motion for a new trial entered by the defendant, raising this and many other questions, some of which will be referred to in their order. The learned circuit judge, in denying the motion for a new trial, stated substantially that upon this question he relied upon the following decisions of this court: Blanchard v. Moors, 85 Mich. 380 (48 N. W. 542); First Nat. Bank v. Bank, 108 Mich. 114 (65 N. W. 604); Vyn v. Keppel, 108 Mich. 244 (65 N. W. 966); Muncey v. Sun Insurance Office, 109 Mich. 542 (67 N. W. 562).

The reasons for the refusal of a new trial were duly ' excepted to by^ the defendant, who has brought the case here upon writ of error, there being 88 assignments of error in the case. We shall not undertake to consider each one of these assignments of error, but shall attempt to follow appellant’s points, which we find to be somewhat overlapping and confusing.

We shall consider first the rights of the plaintiff as assignees after the fire of the policy in suit, and this may be considered in connection with the question that is discussed whether the plaintiffs were bona fide transferees for value of the policy in suit. It was our impression upon the oral argument of the case that it should be disposed of upon our own authorities. Since an examination of the record and the briefs, and the spending of considerable time in examination of the authorities, we are still of the opinion that upon this question we need not go outside of our own decisions to dispose of it. The authorities cited by the trial judge in the denial of the motion for a new trial, we think, are controlling in the case. Others of our cases might be added. It is urged with a great deal of earnestness by the appellants that, because it appeared that D. Littman & Co. might have a contingent interest in the remaining proceeds, if any, of the policies assigned to the plaintiffs, after the payment of the specific debts enumerated, the rule invoked by the trial judge should not apply. An examination has satisfied us that there is no merit in this claim. In fact, it may be said that the entire question, in our judgment, is foreclosed by the case of Muncey v. Sun Insurance Office, supra. In that case a policy of fire insurance was assigned to secure a pre-existing indebtedness of the assignor to the assignee. An examination of the printed record in that case discloses the fact that the assignment contained the following language:

“To emorce and collect the amount due upon said policy in all ways, as fully as I myself could do; it being understood that any surplus remaining upon the amount collected from said policy after deducting my indebtedness to said Casper M. Zengerle is to be returned to me.
[Signed] “Heney Routyette.”

This brings the case where it may be said it is “on all fours” with the instant case. Undoubtedly, on December 19, 1910, when the policies were assigned to the plaintiffs, the latter took them in the plight they were in, and any admissions or confessions made by the insured prior to that time could have been shown as substantive testimony in'the case; but, in our opinion, after the title to these insurance policies was vested in the plaintiffs in their own right, and in the right of creditors whose bona fide claims exceed by a large amount the amount of the policy here in suit, the right of plaintiffs in these policies could not be in any way defeated or impaired by any admission or confession made by the assignors or any of them, in the absence and without the consent of the plaintiffs. We have examined the authorities cited by counsel upon both sides in other jurisdictions. We shall not cite them for the reason already stated, but will say in passing that, in our opinion, the doctrine above announced is supported by the great weight of authority. This subject is covered by a note to the case of Johnston v. Spoonheim (19 N. D. 191), reported in 41 L. R. A. (N. S.), said note commencing on page 2Q. Under the proposition that ordinarily the declarations of fraudulent intent made by the vendor after the transfer are not admissible as against the vendee to affect his title more than 10Q cases are cited.

Counsel for defendant seem to claim that a distinction should be made because it is said that the defendant does not here attempt to affect the title of the plaintiff to the policy in question. It certainly by this evidence attempts to disparage and destroy the validity of the policy. We do not think there is any merit in the attempted distinction. The attempt is made to entirely destroy the validity of the policy.

Many of the text-books make statements to the effect that admissions are not to be received as to the title of either real or personal property if made after the sale, as the vendor cannot disparage a title with which he has already parted. Of course, where there is a. conspiracy or collusion or combination to destroy with which the plaintiff is connected, the rule would be otherwise. But there is no such claim here. The rule may be stated broadly to the effect that declarations of assignors, grantors, devisors, and others through whom title is claimed are incompetent if made after the title or interest in the property in question has passed from them. This rule does not apply to persons who hold merely in a representative capacity, as administrators, assignees in bankruptcy, and assignees for the benefit of creditors. The distinction is plainly pointed out in numerous cases, and upon that subject it may be said that the cases of Wyckoff v. Carr, 8 Mich. 44, and Koch v. Lyon, 82 Mich. 513 (46 N. W. 779), cited by defendant, are to that effect. As was said in Koch v. Lyon, supra, “the defendant was in the case acting only in a representative capacity.” Under our statute an assignee for the benefit of creditors, may be said to represent the assignor and the creditors, and has been in some cases termed the agent of the assignor. He has no interest in the fund, but to administer it in the manner pointed out by the statute. His relation is a very different one from that occupied by the plaintiffs in this case, who were themselves creditors and had an interest in this fund, and may be said to have been purchasers for value. Counsel for defendant say this is a dangerous doctrine and may open the door to many frauds. In our opinion, to hold that the declarations of an assignor made after execution of the assignment might be received to destroy the validity of the chose in action assigned would be, as one court has said, against reason and against law.

“No man’s property would be safe and titles would be thrown into confusion, if declarations of a grantor, out of possession, * * * could be received as evidence against his grantee.” Lent v. Shear, 160 N. Y. 462 (55 N. E. 2).

A grantor would have it in his power, by collusion with a real or fictitious creditor, or other party, to deprive his grantees or his assignees of their property, by a species of proof which it might be difficult, if not impossible, to rebut. T R. C. L. p. 525, § 66, under head of “Admissions and Declarations.”

Upon the subject of Friedenberg’s membership in the insured firm, an examination of the record will show that the subject was fairly submitted to the jury, together with special questions skillfully framed and propounded by the defendant, the answers to which, we think, have foreclosed the defendant upon this question, unless it can be said that the overwhelming evidence in the case was to t-he contrary. We are unable-to say this in view of the entire record.

Alleged errors in permitting questions on cross-examination of defendant’s witnesses as to the indictments of Joseph Clarke, which did not result in conviction, etc. We do not feel like spending much time upon this question. The rule is well stated in the case of Beebe v. Knapp, 28 Mich. 53. In that case this court, speaking through Mr. Justice Christiancy, said:

'“On cross-examination the trial court must be allowed considerable latitude of discretion in permitting questions calculated to elicit any information as to the past life and conduct of the witness, and to enable the jury to see ‘what manner of man he is’; and it is held not erroneous in this case to have permitted certain questions of this character, although in the opinion of this court it would have been a wiser exercise of discretion to have excluded them.”

Attached to the report of. this case is an elaborate note referring to many cases, an examination of which Will show that no error was committed by the trial court in this regard.

Appraisal not demanded. It seems that plaintiffs’ counsel, relying upon the Michigan rule, had commenced an action upon this policy without demanding an appraisal, thinking that was not a condition precedent to the beginning of the suit. On examining the plea filed in the former suit they discovered that an appraisal was a condition precedent to the bringing of suit under the Ohio decisions which were controlling here. Almost immediately thereupon plaintiffs (iñ a letter signed by the plaintiffs and the insured, as well as. by counsel) demanded an appraisal and named a certain person as appraiser upon their part. The defendant refused and declined to enter into an appraisal at that time, saying that the demand came too late. The former suit was discontinued, and a new suit brought within the proper time. We think this question is fully covered by the cases following: Schrepfer v. Insurance Co., 77 Minn. 291 (79 N. W. 1005), and Johnson v. Insurance Co., 69 Mo. App. 226. The latter case seems to be almost parallel. The same ruling appears to have been had in the case of McNees v. Insurance Co., 69 Mo. App. 232.

It is also urged by defendant’s counsel that Clarke represented and was the agent of the plaintiffs, and that, the alleged confession having been made to Clarke, it was notice to the plaintiffs. Upon this record we cannot say that at the' time of the alleged confession there is any evidence of such agency.

It is also claimed that the trial court erred in charging the jury that:

“In order to defeat a recovery upon this policy the defendant company must, by a preponderance of the evidence, establish that the members of the firm of D. Littman & Co. committed a gross, wilful, and intentional fraud and deliberately committed the crime of perjury with relation thereto; otherwise your verdict must be for the plaintiff.”

In view of the claimed defense set up in the pleadings, we do not think there was any error in this part of the charge. The defense was not based on any constructive fraud, but actual, intentional, wilful, and criminal fraud. This court held in Brunswick-Balke-Collender Co. v. Assurance Co., 142 Mich. 29 (105 N. W. 76), that the defense of fraud or false swearing must be based upon actual fraud and requires proof of fraudulent intent, and the authorities are there cited.

The other questions relating to examination under oath not subscribed, the duplicate bills and invoices not produced, were fully covered and submitted by the charge of the trial court. We regret that we do not feel justified, because of its length, to copy into this opinion- the entire charge of the trial court in this case. We think it very fully and fairly covered the entire case.

We have examined all.of the other questions discussed by counsel with great- care, and are satisfied that there is no reversible error in the record.

• The judgment of the court below is therefore affirmed.

"Kuhn, C. J., and Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.. Person, J.-, did not sit.