author: Grant, C. J. Montgomery, J.

text:
    ARBUCKLE-RYAN CO. v. CITY OF GRAND LEDGE.
    Municipal Corporations — Contracts—Ultra Vires — Limit op Taxation — Burden op Proop.
    After the common council of a city had voted the entire amount of taxes which, under the charter, it might lawfully vote in a given year, it entered into a contract for the installation of an engine in the city electric-lighting plant, by the terms of which the city agreed to pay $2,650 within 30 days after the engine should be accepted. After the engine had been accepted, and $650 paid on the contract, the city refused to pay the balance, claiming that the contract was ultra vires, because in excess of the amount of indebtedness which the council was authorized to incur. The tax levy for the year included an item of $1,400 for electric-lighting purposes. Held, that, in order to maintain the defense, it was incumbent upon the city to show that, at the date of the contract, there were not sufficient funds on hand, either in the lighting fund or the general fund, or both, which, added to the $1,400 to be raised, would have enabled the city to meet the obligations imposed by the contract Grant, O. J., dissenting.
    Error to Eaton; Smith, J.
    Submitted April 5, 1899.
    Decided December 30, 1899.

      Assumpsit by the Arbuckle-Ryan Company against the city of Grand Ledge for goods sold and delivered. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    The city of Grand Ledge, through its proper officers, on the 23d day of June, 1896, in pursuance of a resolution unanimously adopted by the common council on the same day, entered into a contract with the Chase Construction Company, of Detroit, Mich., by the terms of which contract the construction .company, in consideration of the sum of $2,650 and certain used machinery, agreed to furnish one Russell engine, the same to be paid for within 30 days after it had been set, and tested and approved by the city electrician. The engine was furnished, was worth the contract price, and was accepted by the common council November 17, 1896. The city has paid on the contract $650 in cash and the specified used machinery. After the engine had been accepted, further time for payment was asked and granted. The city thereupon gave an order to the company, said order being for the sum of $2,000, with interest, and payable out of the electric fund. The construction company, December 16, 1896, assigned its interest in the contract and order to plaintiff, the Arbuckle-Ryan Company. The balance of the purchase money has not been paid, and was past due at the time suit was commenced. Defendant has the engine, has used it since acceptance, and has not tendered performance by payment, nor offered to return the engine. When the contract was made, the city had installed and was operating an electric-lighting plant, by means of which it lighted the streets and furnished lights to the inhabitants. It was necessary to secure a new engine for the further safe operation of this plant, and for more power.
    By the charter of the city of Grand Ledge, the common council is limited to a tax of not to exceed 1 per cent, on the assessed value of all the real and personal property in the city made taxable by law. The city taxes of Grand Ledge are spread upon a roll which goes to the collector in July of each year. The estimates must be made in May, and must be adopted by the common council at the first regular June meeting in each year. Before the contract in question was made, the taxes for 1896 had been voted and assessed at the sum of $7,800 for the following purposes :
    For outstanding indebtedness......................$5,000
    “ interest on same............................... 500
    “ eleotrio-ligbting purposes...................._ _ 1,400
    “ officers’salaries.........-...................... 400
    “ bridge fund____________________________________ 500
    At the time the contract was made, the floating indebtedness was about $4,000, $3,000 of which was not due until May, 1897. The assessed valuation for Grand Ledge in 1895 was $755,774; for 1896, $772,065; for 1897, $742,500. The amount of taxes levied in 1895 was $3,000; in 1896, $7,800; and in 1897, $7,533. The amount yearly expended, including the interest account on the bonded and floating indebtedness, and not taking into account the expense or income of the water and electric-lighting plants, would be not far from $3,000 for each of the years 1895, 1896, and 1897. When the order in suit was issued, December 15, 1896, the floating indebtedness had increased from about $4,000 in the June preceding to about $7,000, and no part of the $4,000 had been paid out of the estimates made for taxation for the year 1896. At the time of the estimate in June, 1897, the city owed about $7,000 floating indebtedness, of which $-3,000 did not become due until June 1, 1900, and $2,000 until October 20, 1898.
    This suit was brought to recover on the above order. Judgment for plaintiff for $2,1-58.30 and costs.

      Cassius Alexander (S. L. Kilbourne, of counsel), for appellant.

      Clarice & hatting (Bussell C. Ostrander, of counsel), for appellee.
   Grant, C. J.

(after stating the facts; dissenting). The contract which is the real basis of this suit is attacked as void because not within the power of the council to make. Counsel do not disagree as to the law. The following propositions are so well settled that the citation of authorities is unnecessary:

1. The agents of municipal corporations are limited to the power expressly conferred or necessarily implied.

2. Parties dealing with municipal corporations through their agents are conclusively presumed to know the law, and deal with them at their own risk.

3. When the charters of municipal corporations limit their agents to a certain rate of taxation, contracts in excess of that rate are void.

The question therefore becomes substantially one of fact, viz.: Did the estimates adopted by the common council prior to the making of this contract include it, or was there any money voted which could properly be used for that purpose ? There is nothing on the- record to show that at the time these estimates were made in May, and adopted in June, the purchase of this engine had even been suggested or contemplated. The amounts then adopted were up to the limit of taxation. The purposes for which the amounts were raised were well defined. The sole amount raised for electric-lighting purposes was $1,400. All the rest was for outstanding indebtedness, interest on same, salaries, and bridge fund. Clearly, this amount was not' included in the estimates, and no taxpayer or member of the council had anything before him to inform him that any such action was then contemplated. I think it impossible to reasonably reach any other conclusion than that the amount provided by this contract was in excess of the limit imposed by the charter for taxation. The result showed that this was so, because, when the contract was completed, there were no funds with which to pay, and an order was given, payable out of the electric fund. The common council had no power to take funds voted for one purpose and apply them to another. The charter provided the proper method for the council to pursue, viz., to borrow the money for the purchase of the ■engine and boiler, provided the electors should authorize it. Act No. 322, Local Acts 1893, chap. 22, § 13. If plaintiff’s assignor, at the time of entering into the contract, had taken the trouble to examine the records of the ■common council, it would have discovered the facts above set forth, and that there was no money on hand, and no provision for raising any funds, to meet this extraordinary expenditure. The action cannot be defended upon the ground that it was necessary for the safety of the workmen, or to supply the city with light. Common councils are not vested with authority to determine the necessity of expenditures which are beyond their power to incur. If they desire to exceed the limit, they must appeal to the electors under the charter.

This is not a case for the application of the doctrine of estoppel, in support of which counsel for plaintiff cite Nelson v. Mayor, etc., of New York, 63 N. Y. 535. In that case the materials furnished exceeded the limitation, and the court expressly held that contracts in excess thereof were void, but permitted a recovery upon the ground of a subsequent act of the legislature authorizing the transaction. Nor is it within the principle enunciated in Coit v. City of Grand Rapids, 115 Mich. 493, where it was held that “mere irregularities of action, not going to the essentials of the' power* are not sufficient to defeat the exercise of the power.” There was, in the present ■case, an absolute want of authority to enter into the contract, because the limitation of taxation had been reached. Trump Manfg. Co. v. Village of Buchanan, 116 Mich. 113.

The language of Justice Swayne, in Railway Co. vMcCarthy, 96 U. S. 267, that “the doctrine of ultra vires, when invoked for or against a corporation, should not be allowed to prevail where it would defeat the ends of justice,” was not applied to municipal corporations, but to private corporations. The defendant railway company had agreed with the plaintiff in that suit to transport cattle from East St. Louis to Philadelphia over other lines than its own, and the defense was that the contract was ultra vires. It is not surprising that that language was used, so entirely applicable to the defense in that case. But does it apply to a municipal corporation, which can exercise only the powers expressly or by necessary implication conferred upon it ?

Are these limitations, placed by the people for their protection upon the powers of a municipal corporation, to be abrogated on the ground that the corporation has had the benefit of the contract, and therefore the people are es-topped to assert its invalidity ? Probably a large proportion of ultra vires contracts on the part of municipal corporations could be sustained if this rule were adopted. In the case of Coit v. City of Grand Rapids, supra, we said: “If we conceded the premises assumed by defendant, viz., that the contract was wholly ultra vires, we might be compelled to reach the conclusion that the city could not be estopped to set up its invalidity.” The contract in that case was within the power of a municipality to make. Its action was merely irregular, and it is not necessary here to comment further upon it. When a certain limit of taxation is reached, the charter absolutely prohibits the making of contracts or incurring obligations beyond that limitation, and every such contract is wholly ultra vires. By no other holding can this wise provision of the law be given any effect. If. the common council in this case could have made a contract for $3,500, it could just as well have made one for $35,000. The law absolutely enjoins the'power when the limit is reached.

In Wilkins v. Mayor etc., of New York, (Com. Pl.) 30 N. Y. Supp. 424, the city entered into a contract with the Sta'ten Island Rapid-Transit Company under a lease of a certain ferry, by which the company agreed to make extensive and valuable improvements of a permanent character upon the wharf. These improvements had been authorized by a board of commissioners. The improvements were made. By the terms of the agreement, the company was, upon certain conditions, to be reimbursed for these permanent improvements. It will be observed in that case that the improvements had been authorized by the proper municipal authorities, but the city had no authority to get the improvements made as was done under the terms of the lease with the ferry company. Strictly speaking, therefore, the contract was ultra vires, but the very thing to be done had been authorized. It was the method of doing, not the act, that was ultra vires. Many cases similar to this can be found, where the courts have applied the doctrine of estoppel to those contracts which are technically ultra vires, but which have been carried out, and of which the municipality has received full benefit. But do such cases apply to contracts and indebtedness incurred in direct violation of the charter of a municipality ? It would be a dangerous doctrine to establish that a municipal common council could enter into contracts with those who are always anxious to sell their goods, and then estop the municipality from contesting the validity of the contract, on the ground that it has had the benefit of it. To say that the contract was within the apparent power of the council is not, in my judgment, correct. Have parties dealing with a municipal corporation the right to rely upon an apparent power in its agent, the common council, whose power is limited by the charter ? What is an apparent power ? Is it such as may be implied from a general agency ? But do municipalities have general agents, who are presumed to be acting within the scope of their authority ? Certainly not. It must follow that there is no apparent power upon which one may rely, but only the real, actual power, lodged in the municipality by the charter. Its charter is the sole guide, which all are held to know. To that alone parties must look and act at their peril. If the council refuses to tender back the property under such an illegal contract^ the law provides a way for the party to regain possession of it. If he suffers some loss in so doing, he cannot complain, because he should have made an examination into the authority of the council.

After writing the above, two rearguments were ordered on the following questions :

1. Was the amount of the order included in. the tax budget of 1897 ?

2. If so, was this a valid ratification of the contract ?

3. Does the record show that there was no money in the treasury whén the contract was made which might have been appropriated in payment thereof?

The case was tried upon the theory that there was no money in the treasury out of which it could have been paid, and upon that theory was argued in this court. Counsel for plaintiff do not now contend that there was. There is nothing in the record to indicate that the amount was included in the budget of 1897. We need not, therefore, discuss the question of ratification. The burden of proof was upon plaintiff, and it has failed upon both of the above questions of fact.

Judgment should be reversed, and new trial ordered.

Montgomery, J.

I am for affirmance. The contract between the city and the Chase Construction Company was within the general powers of the common council. It was not, in its nature, ultra vires. If the condition of the city finances was such<¡ that the obligation arising out of the contract would exceed the amount which the common council was authorized to incur an obligation to expend, it was incumbent on the defendant to make that fact affirmatively to appear. It does not appear in the findings. It does not appear in the testimony. On the contrary, it does appear that $1,400 was provided in the budget for the electric-lighting fund. This sum, it is true, was less than the sum required, but there is nothing to show that there were not sufficient funds on hand, either in the lighting or general fund, or both, to supplement this $1,400, and meet the obligation. It does not appear that, if the Chase Construction Company had investigated the condition of the treasury, it would have found no money on hand. The record is silent on this point. True, at a later date, when an order was issued, the electric-light fund had been depleted until it showed but $362.54; but I discover no data in the record from which the condition of this fund on the 23d of June, 1896, can be determined. We should indulge in no presumptions of official wrong-doing in favor of a defense so unconscionable as that attempted in this case.

Hooker and Moore, JJ., concurred with Montgomery, J. Long, J., took no part in the decision.


source: Caselaw Access Project

author: Montgomeby, J.

license: Public Domain

text:
    FOX v. CITY OF BAY CITY.
    Municipal Corporations — Sewer. Contract — Specifications— Extras.
    A city charter provided that, whenever the common council should order a public work, the board of public works should' estimate the cost, and might cause surveys, plans, and specifications to be made, and report the same to the council, with such other recommendations as they might deem advisable. A sewer contract, entered into by authority of the council, provided that in case the amount of excavation or material should vary from the specifications, plans, or estimates, which were referred to in, and made a part of, the contract, the compensation to be paid the contractor should be increased or diminished pro rata. Held, that the estimates reported by the board were meant, and not those of the city surveyor, upon whose survey and estimate the report of the board was apparently based; and that the surveyor’s estimate was no part of the contract.
    Error to Bay; Maxwell, J.
    Submitted June 9, 1899.
    Decided December 30, 1899.

      Assumpsit by Henry Fox against the city of Bay City to recover extra compensation under a sewer contract. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Brakie J. Orr and James E. Duffy, for appellant.

      Simonson, Gillett & Courtright, for appellee.
   Montgomeby, J.

The plaintiff recovered a judgment against the defendant city in the sum of $733.63 for extra compensation for services rendered in the construction of a sewer. The contract between the city and the plaintiff was in writing, and the case turns mainly on the construction of this contract. It is conceded by plaintiff’s counsel that, unless the contract covered the extra work in question, there can be no recovery. The contract provided for the construction of a 36x39-inch egg-shaped sewer, with box outlet, in the center of Fourteenth street, “according to plans and specifications therefor on file at the office of the comptroller of said’Bay City, which plans and specifications are hereby referred to and made a part of this contract,” at an agreed price of $5,959.33. The specifications offered in evidence by the plaintiff, under the head of “Detail of Material and Excavation for Main Sewer, ” have the following:

Total length__________________________________ 5,675 feet

Average depth of excavation____________________ 15 feet

Number cubic yards of excavation.............. .

Under the head of “General Specifications,” a subdivision reads:

Depth of Cutting. The approximate depth of cutting will be indicated upon the profile, a copy of which will be given the contractor upon application.”

Under the head of ‘ ‘ General Stipulations ” are the two following, among others:

“(4) The board of public works reserve the right to alter or modify the designs, and to add to or diminish from the contract price, and to be at liberty to make any alterations in the plan from construction, detail, or execution described by the drawings, estimates, and specifications, without invalidating or rendering void the contract; and, in case of any difference in expense, an addition to or abatement by the said contract amount, the same shall be made in ratio or proportion such work may have to the whole contract work agreed to be performed.”
“ (9) The work as it proceeds shall be estimated weekly by the board of public works. Only net measurement of the work will be allowed, notwithstanding any local' or other usage or custom to the contrary: Provided, always, that 10 per cent, of each estimate will be retained by the city until full completion of the work. The final estimate will be made when the work shall have been completed, inspected, and accepted by said board of public works. In case the amount of excavation or material to he furnished shall be found to vary from the figures given in these specifications, plans, or estimates, such variation shall in no way vitiate the contract for said work, but in such case the compensation to be paid the contractor shall be increased or diminished, as the case may be, pro rata.”

On the trial, a paper indorsed “Estimates of Surveyor 14th St. Sewer” was introduced. This paper is as follows:

“Estimated cost of furnishing material and constructing a 26x39-inch egg-shaped main brick sewer along the center line of Fourteenth street, commencing at the west line of Johnson street, and running thence west to the Saginaw river:
“ Total distance, 5,675 feet. 5,475 ft. 26x39-inch brick sewer. 200 ft. 36x36-inch (inside measurement) box ■outlet.
‘■‘Average cut, 15 feet (approximate).
300,000 hard-burned brick, at §6.00______________§1,800 00
Constructing 5,475 ft. brick sewer, at 20c________ 1,095 00
Cost of cement and sand, at 30c................- 1,095. 00
60 10-inch slants, at 32c_________________________ 19 20
34 6-inch slants, at 17c.......................... 5 78
200 feet box outlet, at §1.00..................... 200 00
9,500 cubic yards excavation, at 20c............. 1,900 00
§6,114 98
Manholes.
20 set castings for manholes, at 56.00 _■............ §120 00
Constructing 20 manholes, at §10.00_____________ 200 00
500 cubic yards excavating, at 20c............... 100 00
Constructing lateral sewer and catch-basins with new sewer.................................... 100 00
§6,634 98
Superintending and survey................-..... 500 00
Total....................................... §7,134 98”

This paper was marked “Exhibit D,” and will be so referred to hereafter.

Before the contract was entered into, the board of public works submitted to the common council of the city a report as follows:

Gentlemen: We have caused a survey to be made, and have estimated the cost of furnishing materials for and constructing a 26x39-inch egg-shaped main brick sewer on center line of (14) Fourteenth street, commencing at west gutter line of Johnson street, and running thence west to the Saginaw river, and report as follows:

Total length of sewer___________________________5,675 feet.

Average depth of excavation.................... 15 feet.

Estimated cost of sewer, including all material and labor......................................§6,634 98

Estimated cost of survey and superintending construction ..................................... 500 00

Total estimated cost of sewer__________________§7,134 98”

It appears by the testimony that the sewer was longer than described in the specifications. No question arises over this, as the city recognizes the justice of plaintiff’s claim to extra compensation pro rata. The plaintiff also gave testimony tending to show that the excavation was greater than specified in two respects, — that the trench for the sewer was made deeper, and that in the line of the new sewer was an old sewer, which made it necessary to excavate a wider trench than would have been otherwise necessary. It was also testified by him that the work was done under the direction of the city surveyor, and that additional compensation was promised him.

It is not contended by plaintiff’s counsel that the promise of additional compensation is binding upon the city, nor could it well be so claimed, in view of our decisions. McBrian v. City of Grand Rapids, 56 Mich. 108; Campau v. City of Detroit, 106 Mich. 414. The plaintiff contends, however, that the estimate Exhibit D is a part of the contract; that the estimate of cubic yards of earth to be removed is to be taken as a part of the contract; that, under clause 9 of the specifications, plaintiff was entitled to charge for any excess in cubic yards; and that, while the city surveyor could not bind the city by a promise to pay, he could direct the work, and that if, in following the directions of the city surveyor, the estimate was exceeded, plaintiff is entitled to compensation.

In determining what estimates were referred to in clause 9 of these specifications, it is important to keep in mind the fact that the contract is authorized by the common council of the city, and that the necessity for this authority must have been known to the contractor. Section 50, Act No. 413, Local Acts 1889, provides:

“Whenever the council shall order the performance of such work, the board of public works shall proceed forthwith to estimate the cost of such work, and may cause surveys, plans, and specifications to be made, and report the same to the council, with such other recommendations as they may deem advisable.”

Such a report of estimate was made to the council, but such estimate did not include any statement as to the width of excavation necessary. Assuming that the members of the common council were familiar with the provisions of the specifications, and knew of the reference to estimates in section 9, what estimates could have been intended except such as the council had official notice of ? The only estimates which, under the charter, are to be submitted to the council, are estimates of the board of public works, and not estimates of the city surveyor. The board reported to the council that Henry Fox offered to furnish the material for and construct the sewer according to the plans and specifications for a stated price. On inspection of the plans and specifications, the council saw a reference to estimates. The only estimates which the council was bound to or could take notice of were those reported. With this report and the report of the bid before it, the council authorized the contract. This authorization was essential to the validity of the contract. Act No. 413, Local Acts 1889, § 64. We are constrained to hold that the surveyor’s estimates, Exhibit D, were not part of the contract as authorized by the council. Having reached this conclusion, the case is ruled by McBrian v. City of Grand Rapids and Campau v. City of Detroit, supra, and it becomes unnecessary to consider the other questions raised by appellant.

Judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Moore, J.

text:
    PEOPLE v. WARREN.
    1. Criminal Law —Trial by Jury — Province of Court — Directing Verdict.
    Where the jury in a criminal case showed themselves unwilling to render a verdict in accordance with an instruction that it was their duty, under the evidence, to find the respondent guilty, it was reversible error for the court to state to them that there was nothing for them to do but to comply with the direction of the court, and that they violated their oaths as jurors when they set up their individual opinions against the court’s instructions.
    2. Same — Embezzlement by Public Officer — Intent.
    Under 3 How. Stat. § 9263a, making it a felony for any public officer knowingly and unlawfully-to appropriate to his own use, or to the use of any other person, money received by lnm in his official capacity, and section 9263c, providing that the failure of any such officer to pay over to his successor all moneys which should be in his hands as such officer shall be prima facie evidence of the offense, it is not necessary, to constitute the offense, that the unlawful appropriation should be with an intent to forever exclude the rightful owner from use and possession.
    3. Same — Evidence—Admissions—Cross-Examination.
    Where, upon the trial of a public officer for the embezzlement of public funds, one of respondent’s bondsmen, as a witness for the people, had testified to admissions made to him by respondent, and to payments made by the bondsmen, respondent should have been allowed to show, on cross-examination of the witness, the entire conversation with him, and the entire transaction about the payments.
    Exceptions before judgment from superior court of Grand Rapids; Newnham, J.
    Submitted October 26, 1899.
    Decided December 30, 1899.
    Frank D. Warren was convicted of embezzlement
    Reversed.

      M. L. Dunham, H. M. Dunham. J. Kirwin, and H. J. Felker, for appellant.

      Horace M. Oren, Attorney General, and Frank A. Rodgers, Prosecuting Attorney (Rodgers, McDonald & Minor, of counsel), for the people.
   Moore, J.

The respondent was city clerk of Grand Rapids. He was charged with appropriating to his own use money belonging to the city. The case was tried before a jury. The trial judge charged the jury at length. Near the close of the charge he instructed the jury that it was their duty to return a verdict of guilty. The jury retired with an officer, and, after being out for three hours, they were brought into court, and the following occurred:

“The Court: Mr. Clerk, you may ask the jury if they have arrived at a verdict.
“The Clerk: Gentlemen of the jury, have you arrived at your verdict? If so, let your foreman arise and answer.
“The Foreman (Mr. Goodell): We have not. You ask if we had come to a verdict ?
“The Clerk: Yes; have you arrived at a verdict?
“The Foreman: We have not; no, sir.
“The Court: Gentlemen of the jury: You have been out now somewhere about the space of three hours. The court very plainly gave you his instructions, and told you what it was your duty to do. The court instructed you that it was your duty to render a verdict of guilty in this case. There was nothing else for you to do; there is nothing else for you to do; and any individual juror or jurors who sets himself up against the plain instruction of the court is violating the oath which he took when he was sworn upon the case. The responsibility, gentlemen, of finding this verdict, is not yours; you simply have to do as the court directs you to do; and, as I said,‘no individual juror or jurors must set up his own opinion against the instructions given you by the court, that, under the law and the undisputed facts in this case, it is your duty to render a verdict of guilty in this case.”

The jury again retired, and, after being out 20 minutes,, returned into court, when the following took place:

“ The Court: Mr. Clerk, you may take the verdict.
“The Clerk: Gentlemen of the jury, have you agreed upon your verdict? If so, let your foreman arise and answer.
The Foreman: We have.
“The Clerk: What say you, Mr. Foreman? Do you find the respondent guilty or not guilty ?
“The Foreman: We find the respondent guilty, according to his honor’s instructions.
“Mr. Dunham: I would like to have the jury polled.”

The jury was polled. Four of the jurors replied in substance that, because of the instruction of the judge, they voted guilty. Afterwards a motion was made for a new trial, and an affidavit signed by 11 of the jurors was filed, stating in substance that each of them would have voted “Not guilty,” had they not believed that in so doing they would have been guilty of contempt of court, and possibly subject to fine and imprisonment.

Leaving out the question of whether this affidavit can be considered or not, it is very clear that up to the last moment the jury did not acquiesce in the direction of the court to find a verdict, and that four of them, at least, were unwilling to acquiesce in said verdict. The practical effect of what was done was that not only did the trial judge direct the jury as to their duty, but, when the jury failed to follow his direction, he did for them what he claimed it was their duty to do. Many questions are involved in the case, but the important question is, Can a trial court compel a verdict of guilty in a felony case, when some of the jurors are not willing to render such a verdict ? The claim of counsel for the people is stated as follows: “The trial judge has power to direct a-verdict of guilty in a criminal case where the facts are admitted or undisputed, and the intent is a legal inference from the undisputed facts, or in cases where the statute does not make intent an element of the offense, but commands an act to be done or omitted which, in the absence of the statute, might have been done or omitted without any culpability, and where consequently the bare commission or omission of the act in question in itself constituted the offense, irrespective of any felonious intent on the part of the defendant. * * * We contend that directing a verdict in a civil case or a criminal case comes to the court by virtue of its being the sole judge of the law; that, where the facts are undisputed, there is nothing for the jury to pass upon, and it logically follows that if the court is the judge of the law, and the facts are undisputed, it is then a question for the court to answer which party should recover in a civil case, and what the verdict should be in a criminal case;” citing Montee v. Com., 3 J. J. Marsh. 132; Duffy v. People, 26 N. Y. 588; Sparf v. U. S., 156 U. S. 51; State v. Burpee, 65 Vt. 1 (19 L. R. A. 145, 36 Am. St. Rep. 775); Hamilton v. People, 29 Mich. 173; People v. Mortimer, 48 Mich. 37; People v. Richmond, 59 Mich. 570; People v. Kirsch, 67 Mich. 539; People v. Neumann, 85 Mich. 98; People v. Repke, 103 Mich. 459; People v. Hawkins, 106 Mich. 479; and other cases.

It, of course, is well settled that in civil cases, where the facts are undisputed and the case turns upon a question of law, the court can direct a verdict, and he can have the clerk take the verdict without having the jury retire for consultation. It is not true, however, that this has ever been allowed in a criminal- case in this State. Our attention has been called to a good many cases where the court has directed a verdict in a criminal case, but it has not been called to any case where the jury failed to follow the instructions of the judge, and the judge himself pronounced the verdict. In a civil case the court may set aside a verdict, whether it be for the plaintiff or defendant. It may do the same thing in a criminal case in case of a conviction, but it cannot do so in case of an acquittal. It would be a useless form to take the verdict of a jury in a civil case involving only questions of law, where the verdict, whether for the plaintiff or defendant, might be set aside by the judge because contrary to the law; but the judge could not set aside a verdict of acquittal if rendered by a jury in a criminal case. Can he, by compelling a verdict of guilty, do indirectly what he could not do directly ?

The right of trial by jury was denied to persons accused of crime in the early history of the race. It was not until after a long and persistent struggle that the right was secured. This right was deemed so essential that in the Constitution of the United States, by the sixth amendment, “the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed ” is guaranteed. It has been held that this is a right which cannot be waived, and that a trial by the judge, even by the consent of the prisoner, is erroneous. State v. Maine, 27 Conn. 281. Article 6, § 28, of the Constitution of this State, also guarantees to the accused the right to a speedy and public trial by jury. This is a right which cannot be waived except by a plea of guilty. Hill v. People, 16 Mich. 351; People v. Luby, 56 Mich. 551; People v. Murray, 89 Mich. 284 (14 L. R. A. 809, 28 Am. St. Rep. 294). In People v. Marion, 29 Mich. 31, it is said:

“ It is one of the most essential features of the right of trial by jury at common law that no jury should be compelled to find any but a general verdict in criminal cases, and the removal of this safeguard would violate its design and destroy its spirit.”

This case is cited with approval in People v. Harding, 53 Mich. 56 (51 Am. Rep. 95).

I think it clear that a general verdict involves, not only a decision of the facts in the case, but an application of the law to the facts. In Hamilton v. People, 29 Mich. 189, this language is used:

“The circuit court was asked, but refused, to give the following instruction:
“ ‘This is a criminal trial on an information for felony, and all the questions of law and fact in the case are exclusively for the jury, and the jury are paramount judges, both of the law and the facts.’
“The court held they were judges of law and fact under some restrictions and conditions, but not in the absolute way indicated.
“The precise definition of the rights of a jury in criminal cases is easier understood than expressed. Their decision upon the guilt or innocence of a prisoner can never be directly reviewed, and upon an acquittal there can be no new trial. But, if they have the legal authority claimed in the request, their verdict of guilty would be of the same force as their acquittal. In this country, for a long time past, exceptions have been usually allowed to the rulings of the court on the trial, and, if those rulings are erroneous, the conviction will be set aside. But this can only be upon the idea that the jury are expected to follow the charges given; and it is as contrary to the law, as usually administered, to refuse to give a proper charge, as to give an improper one. And if a judge were to decline to give any charge, — -as he might, if it is of no importance, — it has been assumed that he would violate, his duty.
“ The law does not favor unnecessary intrusions by one functionary upon ground of others. But the charge of a judge in criminal cases is one of the ancient and traditionary incidents of a trial, which must have been introduced for some purpose, and must have some value. It is certain that there is a great body of authority holding it to be meant for the guidance and instruction of the jury, and entitled to their respect. It is true that juries in criminal cases cannot properly find a conviction against their consciences. It is also true that they cannot be questioned or held responsible upon their verdict, nor called on to explain its reasons. Whether those reasons are based on a doubt or disbelief of evidence, or on a rejection of the exposition of law given by the court, they are equally beyond review. At common law a conviction was as final as an acquittal, and could only be relieved by a pardon. And it is very well understood that this immunity from censure or review is necessary to liberty. A jury cannot be compelled, in dealing with crimes, to separate the facts from the law. The right to give a general verdict is essential to the integrity of the system, and all attempts to deprive juries in criminal cases of that power have been opposed as destructive of the system. And experience has shown that special verdicts in such cases have not been favorable to justice. We need not hesitate to determine that it is within the power of juries to act upon their own view of the law. But it does not follow from this that the law does not assume that they will respect the instructions of the court.
“The power of juries in criminal and civil cases is the same in kind, though different in degree. The practice of disregarding or relieving against wrong verdicts in civil cases is one largely of modern growth. In early times verdicts were substantially conclusive. In modern times, though they may be set aside, they cannot be reviewed or altered. And setting aside verdicts as against law is a matter of discretion, and not of right. An appellate court can only review the action of the judge, not that of the jury. And this, too, is not by virtue of the old law, but by force of statutes, which, though ancient, are yet later in origin than jury trials. The jury system is generally regarded as deriving one of'its chief advantages from having the law applied to the facts by persons having no permanent offices as magistrates, and who are not likely to get into the habit of disregarding any circumstances of fact, or of forcing cases into rigid forms and arbitrary classes. It is especially important, where guilt. depends on a wrong intent, to give full weight to every circumstance that can possibly affect it; and professional persons are under a constant temptation to make the law symmetrical by disregarding small things. But it is necessary, for public and private safety, that the law shall be known and certain, and shall not depend on each jury that tries a cause. And the interpi’etation of the law can have no permanency or uniformity, and cannot become generally known, except through the action of courts.
‘ ‘ It may be fairly regarded as one of the best features of the jury system that the law, though interpreted by professional interpreters, can only be applied to facts through the understanding of ordinary men of average •capacity, and usually including in their number some of very simple minds. By this process it is divested of all that would not be readily comprehended by all men. In this way overnicety and technicality become less dangerous, if not absolutely harmless; and an apparent deviation in the verdict from the rules laid down is often no departure from the rules as supposed to be laid down.
“But, if the court is to have no voice in laying down these rules, it is obvious that there can be no security whatever, either that the innocent may not be condemned, •or that society will have any defense against the guilty. A jury may disregard a statute just as freely as any other rule. A fair trial in time of excitement would be almost impossible. All the mischief of ex post facto laws would be done by tribunals and authorities wholly irresponsible, and there would be no method of enforcing with effect many of our most important constitutional and legal safeguards against injustice. Parties charged with crime need the protection of the law against unjust convictions ■quite as often as the public needs it against groundless acquittals. Neither can be safe without having the rules -of law defined and preserved, and beyond the mere discretion of any one. We must construe the jury system, like all other parts of our legal fabric, in the light of history and usage. It came into this country as a part of our common law, and it has been fixed by our constitutions as a known and regular common-law institution. Like many of our best heritages from that source, we know what it is better than how it was devised, or (which is more probable) came into use without devising. We must look to the use as evidence of the law. And, looking to that, we find that the judge has always assumed to' give the jury instructions upon the law. We find, further, that, while there have been severe complaints and stern measures to secure them from his control on the facts, there has never been any attempt to abolish the practice of charging on the law. All the improvements in mitigation of the old system have gone upon the ground that the jury were expected to follow the instructions of the court. The introduction of reserved cases and criminal exceptions would be little short of an absurdity on any other theory. If there were any grounds of complaint, it would not be for wrong instructions, but for giving any charge at all. There is much difficulty in dealing with arguments which assume to qualify a system, and yet are not consistent with its uniform history. A jury system without a presiding judge who is something more than a puppet is not the jury system which we have inherited.
“It would not be profitable to collate or discuss the authorities at length. They differ in terms more than in substantial results. If the charge is proper, it can only be so because it is to be respected. If juries disregard it, they may be free from personal risk, and in cases of acquittal their verdict is conclusive. But the power to do wrong with impunity does niot make wrong right. The same thing cannot be lawful and unlawful when done by different persons.
“We understand the uniform practice, and the decided weight of opinion, to require that the judge give his views of the law to the jury as authority, and not as a matter to be submitted to their review. And, while we recognize the power of the j ury to give wrong verdicts, or to disregard the law, we are nevertheless warranted by usage and authority in holding that such conduct would be an abuse of their discretion, which could only be palliated by such tyrannical and perverse instructions as their good sense should teach them could nbt possibly be true or just.”

In the discussion of the respective duties of the judge and jury, the eminent jurist, Justice Cooley, says, at page 392, Cooley, Const. Lim. (6th Ed.):

“And the jurors must be left free to act in accordance with the dictates of their judgment. The final decision upon the facts is to rest with them, and interference by the court, with a view to coerce them into a verdict against their convictions, is unwarrantable and irregular. A judge is not justified in expressing his conviction to the jury that the defendant is guilty upon the evidence adduced. Still less would he be justified in refusing to receive and record the verdict of the jury, because of its being, in his opinion, rendered in favor of the prisoner when it ought not to have been. He discharges his duty of giving instructions to the jury when he informs them what, in his view, the law is which 'is applicable to the case before them, and what is essential to constitute the offense charged; and the jury should be left free and unbiased by his opinion to determine for themselves whether the facts in evidence are such as, in the light of the instructions of the judge, make out beyond any reasonable doubt that the accused party is guilty as alleged.
“ How far the jury are to judge of the law as well as of the facts is a question a discussion of which we do not propose to enter upon. If it be their choice to do so, they may return specially what facts they find established by the evidence, and allow the court to apply the law to those facts, and thereby to determine whether the party is guilty or not. But they are not obliged in any case to find a special verdict. They have a right to apply for themselves the law' to the facts, and to express their own opinion, upon the whole evidence, of the defendant’s guilt. Where a general verdict is thus given, the jury necessarily determine in their own mind what the law of the case' is, and, if their determination is favorable to the prisoner, no mode is known to the law in which it can be reviewed or reversed. A writ of error does not lie on behalf of the commonwealth to reverse an acquittal, unless expressly given by statute, nor can a new trial be granted in such a case; but neither a writ of error nor a motion for a new trial could remedy an erroneous acquittal by the jury, because, as they do not give reasons for their verdict, the precise grounds for it can never be legally known, and it is always presumable that it was given in favor of the accused because the evidence was not sufficient in degree or satisfactory in character, and no one is at liberty to allege or assume that they have disregarded the law.
“Nevertheless, as it is the duty of the court to charge the jury upon the law applicable to the case, it is still an important question whether it is the duty of the jury to receive and act upon the law as given to them by the judge, or whether, on the other hand, his opinion is advisory only, so that they are at liberty either to follow it if it accords with their own convictions, or to disregard it if it does not. In one class of cases (that is to say, in criminal prosecutions for libels) it is now very generally provided by the state constitutions or by statute that the jury shall determine the law and the facts. How great a change is made in the common law by these provisions it is difficult to say, because the rule of the common law was not very clear Upon the authorities; but for that very reason, and because the law of libel was sometimes administered with great harshness, it was certainly proper and highly desirable that a definite and liberal rule should be thus established. In all other cases the jury have the clear legal right to return a simple verdict of guilty or not guilty, and in so doing they necessarily decide such questions of law as well as of fact as are involved in the general question of guilt. If their view conduce to an acquittal, their verdict to that effect can neither be reviewed nor set aside. In such a case, therefore, it appears that they pass upon the law as well as the facts, and that their finding is conclusive. If, on the other hand, their view leads them to a verdict of guilty, and it is the opinion of the court that such verdict is against law, the verdict will be set aside and a new trial granted. In such a case, although they have judged of the law, the court sets, aside their conclusion as improper and unwarranted. But it is clear that the jury are no more the judges of the law when they acquit than when they condemn, and the different result in the two cases comes from the merciful maxim of the common law which will not suffer an accused party to be twice put in jeopardy for the same cause, however erroneous may have been the first acquittal. In theory, therefore, the rule of law would seem to be that it is the duty of the jury to receive and follow the law as delivered to them by the court; and such is the clear weight of authority. There are, however, opposing decisions, and it is evident that the judicial prerogative to direct conclusively upon the law cannot be carried very far, or insisted upon with much pertinacity, when the jury have such complete power to disregard it, without the action degenerating into something like mere scolding. Upon this subject the following remarks of Mr. Justice Baldwin, of the Supreme Court of the United States, to a jury assisting him in the trial of a criminal charge, seem peculiarly dignified and appropriate, and at the same time to embrace about all that can properly be said to a jury on this subject:
“ ‘In repeating to you what was said on a former occasion to another jury, that you have the power to decide on the law as well as the facts of this case, and are not bound to find according to our opinion of the law, we feel ourselves constrained to make some explanations not then deemed necessary, but now called for from the course of the defense. You may find a general verdict of guilty or not guilty, as you think proper, or may find the facts specially, and leave the guilt or innocence of the prisoner to the judgment of the court. If your verdict acquits the prisoner, we cannot grant a new trial, however much we may differ with you as to the law which governs the case; and in this respect a jury are the judges of the law, if they choose to become so. Their judgment is final, not because they settle the law, but because they either think it is not applicable, or do not choose to apply it to the case. But if a jury find a prisoner guilty, against the opinion of the court on the law of the case, a new trial will be granted. No court will pronounce a judgment on a prisoner against what they believe to be the law. On an acquittal there is no judgment, the court do not act and cannot judge, there remaining nothing to act upon. This, then, you will understand to be what is meant by your power to decide on the law; but you will still bear in mind that it is a very old, sound, and valuable maxim in law that the court answers to questions of law, and the jury to facts. Every day’s experience evinces the wisdom of this rule.’ U. S. v. Wilson, Baldw. 10§.”

In Sparf v. U. S., 156 U. S. 51, there is an exhaustive collation of the authorities bearing upon this question.' The court was divided upon the right of the judge to instruct the jury upon the legal presumptions arising from a given state of facts. Some of the judges were of the opinion that the jury was the judge of the law as well as the facts. In the majority opinion, which is in accord with the views of Justice Campbell and Justice Cooley which we have already quoted, the court is careful to indicate that, while the judge may instruct the jury as to the law of the case which governs it, he may not compel a verdict. The language is as follows:

“We have said that, with few exceptions, the rules which obtain in civil cases in relation to the authority of the court to instruct the jury upon all matters of law arising upon the issues to be tried are applicable in the trial of criminal cases. The most important of those exceptions is that it is not competent for the court in a criminal case to instruct the jury peremptorily to findsthe accused guilty of the offense charged, or of any criminal offense less than that charged. The grounds upon which this exception rests were well stated by Judge McCrary (Mr. Justice Miller concurring) in U. S. v. Taylor, 3 McCrary, 500, 505. It was there said:
“ ‘ In a civil case, the court may set aside the verdict, whether it be for the plaintiff or defendant, upon the ground that it is contrary to the law as given by the court; but in a criminal case, if the verdict is one of acquittal, the court has no power to set it aside. It would be a useless form for a court to submit a civil case involving only questions of law to the consideration of a jury, where the verdict, when found, if not in accordance with the court’s view of the law, would be set aside. The same result is accomplished by an instruction given in advance to find a verdict in accordance with the court’s opinion of the law. But not so in criminal cases. A verdict of acquittal cannot be set aside, and, therefore, if the court can direct a verdict of guilty, it can do indirectly that which it has no power to do directly.’
“We are of opinion that the court below did not err in saying to the jury that they could not, consistently with the law arising from the evidence, find the defendants guilty of manslaughter, or of any offense less than the one charged; that, if the defendants were not guilty of the offense charged, the duty of the jury was to return a verdict of not guilty. No instruction was given that questioned the right of the jury to determine whether the witnesses were'to be believed or not, nor whether the defendants were guilty or not guilty of the offense charged. On the contrary, the court was careful to say that the jury were the exclusive judges of the facts, and that they were to determine — applying to the facts the principles of law announced' by the court — whether the evidence established the guilt or innocence of the defendants of the charge set out in the indictment.
“The trial was thus conducted upon the theory that it was the duty of the court to expound the law, and that of the jury to apply the law as thus declared to the facts as ascertained by them. In this separation of the functions of court and jury is found the chief value, as well as safety, of the jury system. Those functions cannot be confounded or disregarded without endangering the stability of public justice, as well as the security of private and personal rights.”

In People v. Mortimer, 48 Mich. 37, it is said:

“In this State, in criminal as well as in civil cases, it is the duty of the court to instruct the jury upon the law, and it is the duty of the jury to accept the ruling. Hamilton v. People, 29 Mich. 173. It is, no doubt, in their power to disregard evidence, and to acquit persons whom they know to be guilty.”

In People v. Richmond, 59 Mich. 570, the trial, judge made a ruling, when the counsel for defendant said, “Of course, that ends the case.” The court then directed a verdict of guilty, and -the jury returned such a verdict. In disposing of the case the court said: ‘ ‘As defendant himself had sworn to his own guilt, and counsel had made the remark referred to, the court was right in so holding. Where all the facts are admitted, there is nothing for the jury to pass upon.”

In the case of People v. Kirsch, 67 Mich. 539, the facts were agreed to and were admitted. The court directed a verdict, but the verdict was rendered by the jury.

In the case of People v. Neumann, 85 Mich. 98, the following language is used:

“Whenever there is no question of intent in a criminal case, and no inferences, about which reasonable men might differ, to be drawn from the facts, and where, upon the admitted facts, the only question to be determined is whether, under the law, the statute has been violated, the trial judge may, with perfect propriety, state to the jury that the law applied to the facts, which are undisputed, shows the defendant to be guilty of the offense charged, and that it is their duty so to find under the facts and the law. But it has been repeatedly held that he cannot, in so many words, direct them that they must bring in a verdict of guilty; and that they are at liberty to find otherwise, if they see fit, under the Federal Constitution, which guarantees to every accused person ‘ the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed.’ And verdicts have often been set aside when directed by courts in opposition to this right. See U. S. v. Taylor, 3 McCrary, 500, 11 Fed. 470, and cases there cited. But in this State, where a judge has directed a verdict of guilty, and the jury have followed such direction, and the facts are admitted or undisputed, and the only question is one of law, applied to such facts, a new trial will not be granted, if the judge was right in his application of the law. No injustice can be done the accused in such case, as it is not to be presumed that a jury will find in opposition to the law from mere whim, caprice, or prejudice, although they may have the right to do so. In this ruling we. do not intend to encourage the practice of directing a verdict against the accused in criminal cases. In all such cases the jury should be permitted to retire to the jury-room, and there deliberate, and the trial judge should content himself by stating the law as applied to the facts, and with an admonition to the jury of their plain duty in the premises.”

In People v. Collison, 85 Mich. 105, the facts were admitted. The judge directed a verdict, and, without sending the jury out, directed the clerk to enter the verdict. The court set the verdict aside, using this language:

“We think, however, that the court erred in discharging the jury, and directing a verdict of guilty to be entered by the clerk. In no sense can this be said to have been a trial by a jury. The verdict of the jury is absolutely wanting. If the defendant in a criminal case cannot waive a trial by jury, it is difficult to see how this conviction can be sustained. In the case of People v. Neumann, 85 Mich, 98, and in the several cases therein referred to in support of the conclusion arrived at there, the jury acquiesced in the direction of the court; but here the court gave the jury no opportunity to follow or .to refuse to follow the court’s direction; in fact, there was no direction to the jury, but one to the clerk to enter a verdict.”

In People v. Bepke, 103 Mich. 459, it is held that, in criminal as well as civil cases, it is the duty of the judge to instruct the jury as to the law of the case; citing Hamilton v. People, supra, and People v. Mortimer, supra; the judge adding:

“But, as was said in the last case, ‘It is, no doubt, in their power to disregard evidence, and to acquit persons whom they know to be guilty.’ The court in the present case did recognize this power, and expressly told the jury that they could acquit, but, if they found the respondent guilty at all, it must be for murder in the first degree.”

The question was submitted to the jury, and the verdict was returned by them.

In People v. Hawkins, 106 Mich., at page 488, is a statement of what was done, in the following language:

“ It is not claimed that the evidence stated by the court is disputed, and the point of this request appears to be that the jury should not have been told the court’s opinion about it. He prefaced what he said about the evidence by leaving the question to them, and followed it by sending them to their room to determine the question of guilt or' innocence. It is settled by former adjudications that it is the duty of the jury to take the law from'the court, and that where there, is no conflict in the evidence, and the defendant in open court admits facts legally constituting an offense, the court may so state, and even go so far as to direct a verdict. In this case the defendant had practically sworn to his own guilt, yet, in the abundance of his caution, the court left the question of intent to the jury. People v. Richmond, 59 Mich. 570; People v. Ackerman, 80 Mich. 588.”

Our attention has not been called to a case in which the judge undertook to enter a verdict for the jury when the latter failed to follow the instructions of the court, and it is not believed such a case can he found. The cases of People v. Neumann, supra, and People v. Collison, supra, indicate very clearly that, should a judge attempt to return a verdict for the jury, he would be trespassing upon the province of the jury. In all the cases where a verdict was directed, the only question involved was a question of law. As a rule, the facts were admitted, so that it was simply a question of whether the admitted facts under the law showed respondent was guilty of the crime. Here the facts were not admitted. It became the duty of the people to show by competent evidence the guilt of the accused. It was for the court to say what evidence was competent, and to decide whether it should be admitted or not; but, after it was admitted, it was for the jury to say what weight should attach to it. The jury were not obliged to believe a witness simply because he had been sworn. Can it be said that in this case the action of the jury cannot be accounted for upon the theory that they did not believe some of the witnesses ? Whether that can be said or not, the fact remains that, under the Constitutions of the United States and this State, before a respondent can be convicted of a felony upon a plea of not guilty, a verdict of guilty must be rendered against him by the jury. While it is the duty of the jury to take the law from the judge, and be guided by it, still, if the jury does not do its duty, its failure to do so does not confer upon the judge added power, and authorize him to usurp the functions of the jury, and return a verdict of guilty himself. The right of the trial judge to direct the jury in relation to the law of the case is not conceded in all of the courts, but, as we have already seen, that question is no longer an open one in this State. When, in addition to that right, it was held that, in cases where the facts were admitted, the trial court might direct the jury to return a verdict of guilty, the border line separating the functions of the trial judge from the province of the jury was reached. If another step is to be taken, and, in addition to the right to direct a verdict, it is held the judge may, when the jury is unwilling to follow the direction of the court, compel a verdict, then the border line is passed, the judge has entered upon the province of the jury, the constitutional guaranty of a right of trial by jury in criminal cases is overthrown, and the judge has drawn to himself power which has not been exercised by any trial judge since the days of Magna Gharta.

The statute under which this information is filed reads as follows:

The People of the State of Michigan enact, That if any person holding any public office in this State, or if the agent or servant of such person, knowingly and unlawfully appropriates to his own use, or to the use of any other person, the money or property received by him in his official capacity or employment, of the value of fifty dollars or upwards, the person so offending shall be deemed guilty of a felony, and shall, upon conviction, be punished by imprisonment' in the state prison, at hard labor, not to exceed ten years, or by fine not exceeding five thousand dollars, or both said fine and imprisonment.” 3 How. Stat. § 9263a.

It is the claim of the attorneys for respondent in relation to this statute that before one can come within its provisions, so as to make himself a felon, he must knowingly and unlawfully appropriate the money to his own use, or to the use of some other person, with an intent to so appropriate it as to forever exclude the rightful owner from its use and possession. We do not think the statute is susceptible of such construction. Section 9263c provides that the failure or refusal of any public officer to pay over and deliver to his successor all moneys and property which should be in his hands as. such officer shall be prima facie evidence of the offense. It is true that in People v. Seeley, 117 Mich. 263, it was said that aprima facie case may be rebutted, as in that case, by showing the money which should be in respondent’s hands never came to him'. I suppose, too, that, if the accused was prevented from paying over the money by its being burned or stolen when in a proper place of deposit, that would rebut the implication that he had knowingly and unlawfully appropriated it to his own use. Other things might arise which would excuse him. It cannot be said of most men that, when they use public funds, they mean to permanently retain them. Experience shows that frequently they are lost because used for speculative purposes; the user expecting to return them, but failing to do so because his speculation did not turn out as he expected. The intention of the statute was to prevent any public official from using money or property coming to him in his official capacity for any other purpose than the purpose for which it came to him. If he does knowingly use it, or permit others to do so, for other purposes than the one for which it was intrusted to him, then he comes within the provisions of the statute.

It is necessary to refer to but one other assignment of error. Mr. Lemon, who was one of the bondsmen of respondent, had testified to admissions made to him by respondent, and to payments made by his fellow bondsmen and himself. Upon cross-examination it was attempted to show all the conversation he had upon that occasion with the respondent, and the entire transaction about the payment. This was excluded. We think it ^proper cross-examination, and that it should have been admitted.

For the errors mentioned the conviction is reversed, and a new trial ordered.

The other Justices concurred.


author: Grant, C. J. Moore, J.

text:
    BLOOMER v. DAU.
    1. Mortgages — Agent for Collection.
    The fact that a note and mortgage are made payable at a certain bank does not constitute the bank an agent to collect the same.
    .2. Same — Payment—Possession of Papers — Payor’s Risk.
    A mortgagor who pays his mortgage to a banker who has been the mortgagee’s general agent, knowing that the banker no longer has the note and mortgage in his possession, but relying, without inquiry as to the continuance of the agency, upon the banker’s statement that he will secure the proper discharge, does so at his own risk.
    3. Same — Revocation of Agency — Estoppel.
    Where a mortgagee withdrew- the mortgage and note from the possession of a bank which had acted as his general agent for collection, and notified the mortgagor of the termination of the agency by a letter which, owing to the latter’s having changed his address, did not reach him before the mortgage fell due and was paid by him to the bank, which failed without accounting for the proceeds, and before the mortgagee knew of the payment, the mortgagee was not estopped to deny the bank’s authority to receive the money by his mere delay in bringing suit to foreclose the mortgage.
    Moore, J., dissenting.
    Appeal from Kent; Grove, J.
    Submitted November 14, 1899.
    Decided December 30, 1899.
    Bill by Reuben Bloomer against Magnus Dau, Mary C. Dau, and Jacob Mann to foreclose a mortgage. From a decree dismissing the bill, complainant appeals.
    Reversed.
    Bill to foreclose a mortgage for $375, dated December 4, 1888, due December 4, 1893, given to one Coles A. Bloomer, the assignor of complainant. Coles A. Bloomer and complainant were brothers, and had.been in partnership. Upon the dissolution of the partnership and the division of the property, the note and mortgage, with other securities, were assigned to complainant. One Cheney had a bank at Sparta. Bloomer Bros, did their banking business at his bank. The note and mortgage in this case, together with others, were left there for collection of both interest and principal. On the dissolution of the partnership, complainant left his securities there, without any further instructions to Cheney, who continued to collect interest and principal. When the moneys were collected, they were entered upon the bank books to the credit of the firm, and afterwards of complainant, who checked them out as desired. It was customary for Cheney to receive the principal and interest upon these securities, and then notify complainant (but he did not always do it), who would execute the necessary discharges either at Sparta or Grand Rapids. No instmictions w*ere given Cheney by complainant at any time in reference to his notes and mortgages. About the 1st of November, 1893, complainant withdrew from Cheney’s bank all his notes and mortgages, and took them to Grand Rapids, where he resided. He then notified Mr. Cheney, and wrote letters to his debtors, that he would thereafter attend to his own business, and to pay their indebtedness to him at Grand Rapids. Complainant was told by his brother that Mr. Dau’s business address was Sparta; and that at one* time was his post-office address, but was not when the letter mentioned below was sent. Complainant, on November 6, 1893, addressed a letter to Mr. Dau, notifying him that he had his office in Grand Rapids, and,' when he wished to pay on his note and mortgage, to call on him under the Fourth National Bank in Grand Rapids. Mr. Dau’s address at that time was at Gooding. The letter was duly advertised at Sparta; was forwarded to the dead-letter office at Washington; was returned to complainant from the dead-letter office by letter dated January 17, 1894. Upon receiving this letter he saw Mr. Dau, who told him that he had paid the note and mortgage, when due, to Mr. Cheney. Meanwhile Cheney had failed, and had not notified complainant of the payment of the mortgage. Cheney entered the amount to complainant’s credit upon the bank books. Dau obtained the money from defendant Mann, giving him a mortgage upon the same land as security. Dau and Mann met by agreement at Cheney’s bank to consummate the transaction. The amount due exceeded $350 borrowed of Mann. Dau was to pay the excess, which he did before Mann arrived. Then Mann and Dau went together into the bank, where Mann paid to Cheney the $350. Neither Dau nor Mann asked where the note and mortgage were, or for their surrender. Neither did either of them ask Cheney if he still had authority to collect the money. Dau said nothing about the note and mortgage. All that was said about them appears in the following testimony of Mr. Mann:
    “I simply paid the money over to Cheney, the $350, after we got Cheney to read my mortgage; and he did not have the Bloomer mortgage there, and I said, ‘How will it be about that Bloomer inortgage ? ’ Cheney says, ‘ That is all right; I will see that it is taken off from the records.’ ”
    Neither Dau nor Mann afterwards took any steps to obtain possession of the note and mortgage or a discharge. The mortgage and note were made payable at Cheney’s bank. Mr. Dau had regularly paid his interest there. Mr. Cheney gave the following receipt: “Received of Magnus Dau, per J. Mann, three hundred fifty dollars, for balance of mortgage held by Reuben Bloomer against him.” About four years after this transaction, complainant commenced the foreclosure of this mortgage. Defendants answered, averring payment, and prayed for a discharge of the mortgage. Decree was entered dismissing complainant’s bill, and granting relief to' the defendants.

      Wanty & Knappen, for complainant.

      Wolcott & Ward, for defendants.
   Grant, C. J.

(after stating the facts). Complainant and defendants acted in entire good faith. Upon whom of the innocent parties shall the loss fall? We think the evidence justifies the conclusion that Mr. Cheney was the general agent of complainant and his assignor for the collection of the notes, mortgages, and other securities which had been intrusted to him for collection, including the note and mortgage in dispute, up to the time the agency was revoked. The notes and mortgages were placed in the hands of Mr. Cheney to be surrendered when payment was made. But this authority was expressly revoked, and all the notes and mortgages taken áway from the possession of Mr. Cheney. His agency was thereby canceled, and he had no authority whatever to receive payments. Complainant performed his legal duty in notifying his debtors who had previously done business with Cheney in reliance upon that authority. Had the letter to Mr. Dau been directed to his then post-office address and been received by him, complainant would have done all the law required to protect himself and to notify Mr. Dau of the termination of Cheney’s agency.

When the debtor pays his debt, he is entitled to a surrender of the written evidence of that debt. Creditors usually place the bonds, notes, and mortgages they desire to have paid into the hands of their agent whom they authorize to collect. The absence of such papers is usually sufficient to place the debtor upon inquiry as to the agent’s authority. A general agency continues until in some way parties have been notified of its termination, or have sufficient facts in their possession to put them upon inquiry. Banks are collection agencies, and the courts will take judicial notice of the fact that notes and other evidences of debt accompany the agency, and are placed in their hands, to be surrendered when the debt is paid. It must be presumed, therefore, that defendants knew that this was the customary method of doing business, and that this bank would, in the due course of business, if its agency continued, have the note and mortgage in its hands for surrender. There is another reason why they should be in the agent’s hands, namely, for a correct computation of the amount due. Where one withdraws from his agent the instruments evidencing debts, there is an implied revocation of the authority of the agent. Story, Ag. § 475. Defendants knew that the bank did not have thee note and mortgage. They chose to rely upon Mr. Cheney’s word that he would procure the discharge from the complainant. We must assume that Cheney would have told the truth if defendants had asked about his agency, and, if so, an inquiry would have disclosed the fact that he was not authorized to receive the money, and that, if they chose to leave it there, the bank would become their agent, and not complainant’s. The fact that the note and mortgage were made payable at Cheney’s bank does not establish the agency. Trowbridge v. Ross, 105 Mich. 600, and authorities cited; Adams v. Improvement Co., 44 N. J. Law, 638 (43 Am. Rep. 406).

We said in Joy v. Vance, 104 Mich. 97:

"He [the mortgagee] had a right to suppose that the mortgagor would not pay notes or mortgage without receiving them, and by keeping them in his own hands he interposed the only practical obstacle to the perpetration of a fraud by the mortgage company.”

If that is sound law, why has not the mortgagee interposed this same practical obstacle by withdrawing the note and mortgage from his agent and expressly canceling his authority ? If the bank had had the note and mortgage to deliver, defendants’ contention would be sound, even though complainant had expressly terminated the agency. We are of the opinion that the defendants had no right to assume that the agency continued, in the presence of knowledge that the bank did not have the papers, and that they dealt with the bank-at their own risk.

We find no room for the application of the doctrine of estoppel. The bank had failed before complainant had any notice or knowledge of the payment. He promptly notified Mr. Dau of the letter written him, and that Cheney had no authority to receive the money. His silence after that, and his failure to commence foreclosure, do not constitute an estoppel. Complainant’s delay in bringing suit would no more estop him than would Dau’s failure to institute a suit to prpcure a discharge of the mortgage estop him from claiming payment.

The decree must be reversed, and decree entered for the complainant.

Montgomery, Hooker, and Long, JJ., concurred with Grant, C. J.

Moore, J.

[dissenting). I do not reach the same conclusion as Justice Grant. I agree with him that Mr. Cheney was the general agent of the complainant for the collection of this and other notes and mortgages. The record also discloses that Mr. Dau knew of that fact, for he had paid him interest on the mortgage before he paid the principal. The note was payable at the bank of Mr. Cheney. The principal of the mortgage and the balance of the interest were paid to Mr. Cheney the 5th day of December. It is not disputed that Mr. Dau had not received the letter Mr. Bloomer sent him at this time. The fact that Mr. Bloomer deemed it necessary to send such a letter indicated that he understood Mr. Dau knew Mr. Cheney had authority to receive the payment. When the money was received by Mr. Cheney it was placed to the credit of Mr. Bloomer, just as other sums of money paid on mortgages had been done. Mr. Bloomer testified that the letter came back from the dead-letter office having the Washington postmark, “Jan’y 17.” On the direct examination he testified:

‘ ‘ I have had talk with Dau concerning his not getting this letter, in my office about a year ago. I asked him why he did not get the letter. I said, ‘You used to get your mail there.’ He said he did used to get it there in 1888. He said now he got his letters at Gooding. Before this conversation I had seen Dau in regard to his having paid money to Cheney, at his farm in January, 1891, about the time Cheney failed. I drove up to his place and asked him in regard to the note and mortgage. I asked him why he paid the note there. I said I notified him by letter, and he said he did not get the letter. I said, ‘Did you get your note?’ He said, ‘No; Am. was going to get that. ’ Said he was going to get it discharged. He said Am. was going to get it discharged, meaning the witness Cheney. He says, ‘You take that off the books.’ ”

On the cross-examination he testified:

“I think 1 went to see Dau before I got that letter back. I cannot tell you now whether I went to see Dau. I found that he had paid the amount of the mortgage to Cheney. I do not know whether, when I found out from Dau that he had paid the money to Cheney, that the latter was still doing business at the bank. I went there as soon as I heard it was paid. Mr. Cheney was there. I talked the matter over with him. I asked him for the money that was deposited to my credit.. He said he hadn’t got any. He did not promise that he would get it for me soon. I asked him if he had got the money, — what credit it was. It strikes me it was the Dau mortgage. ‘Well,’ I says, ‘have you got the money?’ He said, ‘No.’ ‘Well,’ I said, ‘I don’t want any more of this kind Of business.’ And that was the end of the conversation..”

The testimony does not disclose that, when Mr. Dau told him of the payment, he repudiated the authority of Mr. Cheney to receive the payment, and told Mr. Dau he should hold him liable on the note and mortgage; but, on the contrary, he had an interview with Mr. Cheney at the bank, and learned the money had been placed to his credit. He did not then repudiate Mr. Cheney’s act, but informed him, when he learned.he did not have the money, “I don’t want any more of this kind of business.” The record discloses the bank continued to do business until January 30th, and for nearly four years Mr. Bloomer remained silent. It was not until the January before the commencement of this suit, when Dau asked him to discharge the mortgage, that he repudiated the act of Cheney, and said he was going to see whether Dau had the right to pay the money to Cheney. The case comes directly within Wilson v. La Tour, 108 Mich. 547; Ziegan v. Strieker, 110 Mich. 282.

I„think the circuit judge made a proper disposition of the case, and the decree should be affirmed.


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    BUCK v. COWARD.
    1. Contracts — Restraint of Trade — Limitations.
    A provision of a contract for the sale of one’s right, title, and interest in a certain business, whereby the seller agrees not to re-engage in such business, is not void for failure to limit the place wherein he is restrained from operating, if, construed in the light of the surrounding circumstances, it is apparent that only a reasonable limitation was intended.
      Hubbard v. Miller, 27 Mich. 15, followed.
    2. Same — Waiver.
    By consenting that the seller re-engage in business, and allowing him to carry on such business for nearly three years without objection, the purchaser waives the right thereafter to insist upon the observance of the provision.
    Appeal from Branch; Yaple, J.
    Submitted November 14, 1899.
    Decided December 30, 1899.
    Bill by Philo A. Buck against Richard Coward, Wallace Monroe, and William Monroe to restrain them from carrying on a certain business in violation of their agreement to refrain therefrom. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Charles N. Legg, for complainant.

      John B. Shipman, for defendants.

       As to the validity of contracts in restraint of trade without limitation of place, see note to Gamewell, etc., Telegraph Co. v. Crane, (Mass.) 22 L. R. A. 673.

   Moore, J.

The complainant, in the latter part of 1897, filed this bill for the purpose of restraining defendants from selling flour and buying and shipping grain in the village of Bronson. It is the claim of the defendants:

1. That the contract set up by complainant is in restraint of trade.

2. That the business they are engaged in is not the business they sold complainant.

3. That the complainant consented to their engaging in the business they are now doing.

The testimony was taken in open court, and, after hearing it, the circuit judge dismissed the bill. The complainant brings the case here by appeal.

The contract made between.the complainant and Coward and Monroe, two of the defendants, is contained in a paper dated November 28, 1894, reading as follows:

“Bronson, Mich., Nov. 28, 1894.
“Article of agreement between Coward & Monroe, of the first part, and Philo A. Buck, of the second part, Witnesseth: That the parties of the first part agree to sell and deliver to the party of the second part all of their right, title, and interest in the following business, to wit,- the business of selling and exchanging flour and feed. They also agree not to purchase any grain for shipment, not otherwise provided for, during the time that the party of the second part shall see fit to remain in business, or without the consent of said party. The party of the second part agrees to take all property at its cost value, and ' assume the rent payment, the same as the party of the first part, and furthermore pay to the party of the first part a bonus of $100 for the said business.
“In witness whereof, we have hereunto subscribed our names, this 28th day of November, 1894. This contract to take effect December 1st, 1894.
“Coward & Monroe.
“ P. A. Buck.”

This was supplemented on December 1st by a paper 'signed by Coward and Monroe, reciting that they,—

“In consideration of the sum of •- dollars, lawful money of the United States, to them paid by Philo A. Buck, of Bronson, Branch county, Michigan, of the second part, the receipt whereof is hereby acknowledged, have bargained and sold, and by these presents do grant and ■convey, unto the said party of the second part, his executors, administrators, or assigns, all the flour and feed and one flour bin, according to a bargain entered into between the parties on the 28th day of November, 1894. It is further agreed that the said Bichard Coward and Wallace Monroe, in consideration of one hundred dollars, paid by the said Philo A. Buck, that they will not enter into the business of grain dealers, and all seeds, or the products of grain, without the consent of the said Philo A. Buck, — belonging to Richard Coward and Wallace Monroe, and now in their possession at the store owned by John T. Holmes, in the village of Bronson; to have and to hold the same unto the said party of the second part, his executors, administrators, and assigns, forever,” etc.

It will be observed that the contract does not limit the place in which Coward and Monroe were not to do business, but we do not think that for that reason it can be said to be in restraint of trade. The case of Hubbard v. Miller, 27 Mich. 15, is on all fours with the case which complainant claims exists here. A reference to that case makes it unnecessary to say more about that feature of this case.

It is conceded, in the brief of the solicitor for the complainant, that the evidence does not show that defendants arebuying and shipping grain contrary to their agreement. It is the claim of Coward and Monroe that the retailing of flour by them was but a small part of their business at the time they sold their business to the complainant. It is their claim that, while they were handling thousands of pounds of flour daily in their exchange business, they had not, in all, sold at retail a dozen sacks of flour, and that the retailing of flour could not be said to be a portion of the business which was sold. It is also their qlaim that they bought at chattel mortgage sale a, grocery stock, containing in the stock flour, which was sold at retail, and that the' only way in which they have sold flour was to continue to retail it in connection with the grocery stock. They assert that complainant consented to their doing this, and that sometimes they would get flour from Mr. Buck for their customers, and he would do the same thing for his customers, and that he made no objection, for nearly three years, to their retailing flour in connection with their grpcery stock. Mr. Buck denies' that he ever consented to the defendants’ handling flour in the manner they did, but he admits on cross-examination that, nearly three years before this suit was brought, he had some talk with Mr. Coward to the effect that, if they would procure their flour of him, he would submit to their handling flour. The witnesses were before the court. He had a great deal better opportunity to know who of them were truthful. We are inclined to think it is shown that complainant gave his consent to what was done by defendants.

The decree of the court below in dismissing the bill is affirmed, with costs.

The other Justices concurred.


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    GRINNELL v. ANDERSON.
    Assumpsit — Waiver op Tort — Conversion—Evidence.
    Plaintiffs, piano dealers, during the absence of defendant and his family, induced a neighbor to unlock defendant’s house, and placed therein a piano, claiming that defendant’s wife had agrehd to receive it on trial. Defendant thereafter refused to buy the piano, or to surrender it until he should be paid for injury done by the movers to his lawn, porch, dóor-casing, and carpet. He never claimed to be the owner, and never refused plaintiffs possession, except conditionally, as stated. Held, that, there being no contract relation, and no conversion into money, plaintiffs were not within the rule permitting the waiving of tort and maintaining of assumpsit in a proper case.
    Error to Shiawassee; Smith, J.
    Submitted November 15, 1899.
    Decided December 30, 1899.

      Assumpsit by Ira L. Grinnell and Clayton A. Grinnell, copartners as Grinnell Brothers, against William Anderson, for the value of property alleged to have been converted by defendant. From a judgment for defendant, plaintiffs bring error.
    Affirmed.

      Selden S. Miner (WilliamL. January, of counsel), for appellants.
    • John T. McCurdy and Fred J. Northway, for appellee.
   Moore, J.

This case was commenced by summons, in which defendant was summoned to answer the plaintiffs in a plea of trespass on the case upon promises. The case was tried before a jury, who rendered a verdict in favor of defendant. The case is brought here by writ of error.

There are 18 assignments of error, but I think it very clear that, under the case made by the plaintiffs, they are not entitled to recover in this form of action. It is their claim that, previous to the 5th of January, plaintiffs’ agents had called at defendant’s home on different occasions for the purpose of selling the defendant and his wife a piano, and had talked with the wife, and had shown her the catalogue, but were unable to find the defendant at home. They called again on the 5th of January, and found his wife at home. They asked her if she thought the dedefendant would buy a piano, and she said tha% if they wanted to sell the defendant a piano, the only way to do so was to bring a piano to the house, and then see him, show him the piano, and play it for him. She said he liked music, and in playing it for him, if it was satisfactory, he would undoubtedly buy it. They told her they would put a piano in the house if she so desired. She asked them when it would be there, and they replied, “On Friday.” She said, “All right.” Friday morning they took the piano to the house, and found defendant’s wife absent. They went to one of the neighbors, and found the key of the house, and the neighbor went over and unlocked the house. They put the piano in the house, where it has remained ever since. Mr. Grinnell and Mr. McGuinness, a few days afterwards, went to defendant’s house, and asked defendant’s wife how Mr. Anderson liked the piano, and she answered by saying that her husband wanted to see them. They tried to see the defendant, but were unable to do so until sometime in April. They called at the house again on the 17th of February. Mrs. Anderson was at the door, and would not let them in, and informed them that Mr. Anderson had said not to let any one in the house. When Mr. Grinnell did see him, he says the following occurred:

“ I asked him if I could sell him the piano, and he said, ‘No.’ I then offered him $2, and told him, rather than to have any more trouble about it, I would give him $2, and take the piano, and let it go, — settle it; that I would do that, and pay him for any trouble he considered he was to. I had two silver dollars there, and held it out to him. He did not take it. He didn’t say much. He just laughed at me when I offered it to him. I asked him what he would take, and he said if I would give him $25 he would let me have the piano.”

He says he was then told he could not have the piano, and must not go near the house. After this he never made any request or demand for the piano.

It is the claim of defendant that plaintiffs saw the wife of defendant, and told her they had heard defendant wanted to buy a piano, and that she replied that she thought not, —that his preference was for an organ; that they then requested to put a piano in the house, as they wanted to put one in somewhere, and she told them, so far as she was concerned, she was willing, but they must see the defendant; that she had no further talk with them until her return home, when she found the piano in the house. The defendant is a conductor on a freight train, and is away from home a good deal. His wife says, about two weeks after the piano came, the men came to the house, and inquired what Mr. Anderson thought about the piano, when she informed them he was displeased at the way it was put into the house; that he_wanted to see them; that they came again in his absence, 'and said very unpleasant things to her. Defendant claims the first he saw of plaintiffs was two or three months after the piano was put in his house, when he had just been notified to take charge of a train; that at this time he had been informed of the conduct of the plaintiffs and their agent at his house, when the following occurred:

“I says: ‘Gentlemen, I am called to go out. I have got to go home, get my supper, get a lunch, and go out. I have no time to talk piano tonight.’ He says they would like to fix up the piano deal with me. I says: ‘ You can’t sell me the piano. I never ordered one, don’t want it, and have no time to talk with you on pianos tonight.’ Mr. McGuinness says: ‘There is this much about it: We have got your order for that piano.’ I says, ‘You have got my order?’ I says, ‘You haven’t got anything of the kind,’ or ‘You can’t show it.’ He says, ‘We have your wife’s order.’ I says, ‘No; you can’t show my wife’s order for any piano.’ He says, ‘Of course, we haven’t a written order, but we have a verbal order from her for the piano.’ I says, ‘You haven’t got anything of the kind.’ I says, ‘My wife never lied to me, that I ever found out, and I take it for granted she told me the truth in this case; and you never had anything of the kind, and you never had permission to put the piano in there.’”

Some hot words occurred between the parties, but he claims no demand was made upon him for the piano. He says that at a subsequent talk with one of the plaintiffs the following occurred:

“I says, ‘I am as ready to fix it up today as I ever will be.’ I says, ‘I am willing to fix it.’ He says, ‘As far as your trouble and bother is concerned, I am willing to pay you for the trouble we have put you to.’ I says, ‘ That is all I want.’ He went down in his pocket; offered me $2. I says, ‘Mr. Grinnell, it don’t look hardly large enough to me.’ I says: ‘Of course, you might think it was all right, but I don’t. I don’t think that would pay me for what trouble and bother I have been to.’ He says, ‘What will satisfy you ?’ I says, ‘I haven’t any itemized account figured up, but, if you want to jump accounts, give me $25 and I will be satisfied, or I will figure up itemized accounts and let it come to what it will.’ He didn’t make any reply particularly, anymore than he says, ‘Well,’ he says, ‘we will be good friends anyway.’ He never made any demand of any description. I did not at that time refuse to deliver up the piano, or at any other time have I refused.”

He claims that, just before the piano was taken to his house, he had graded his lawn, and that it was badly cut up by plaintiffs in putting the piano into the house, and that some injury was done to the porch and door-casing and carpet. He disavowed any claim of title to the piano, and said it was still where placed by the plaintiffs.

If we understand the argument of counsel, it is that the wife acted as the agent of the husband in allowing the piano to be placed in his house, and that it was his duty to repudiate her acts, and, failing to do so, he affirmed the agency of the wife; citing Cooper v. Mulder, 74 Mich. 374. They urge that Anderson, through the act of his wife, became a bailee, and that, when he refused to deliver possession of the property, this amounted to a conversion (citing Cooley, Torts [1st Ed.], 448), and that the tort might be waived and suit brought in assumpsit (citing Newman v. Olney, 118 Mich. 545, and other cases). We think counsel misapprehended the effect of the testimony. Giving it the most favorable construction possible, the piano did not come into the possession of the defendant by virtue of any agreement upon- the part of either the wife or the husband to purchase it. The first time the plaintiffs spoke to the husband about buying the piano, he refused to do so. There is no testimony tending to show that he claimed to be the owner of it. It is true he refused to surrender possession of it until he was paid for his trouble, but that is the only way in which he refused to surrender its possession. He never converted it to his own use, and has never sold it for money or anything else. The rule is that, before a party can waive the tort and sue in assumpsit for the conversion of personal property, the tort feasor must have converted the property into money, or the relation existing between the parties must have had its inception in contract. Neither of these situations, existed in this case, and the judge might well have directed a verdict in favor of defendant. Watson v. Stever, 25 Mich. 386; Tolan v. Hodgeboom, 38 Mich. 624; Tuttle v. Campbell, Mich. 652 (16 Am. St. Rep. 652).

Judgment is affirmed.

The other Justices concurred.