text:
    PEOPLE v. GILLESPIE.
    1. Criminal Law—Robbery—Joint Respondents—Evidence — Order of Proof.
    Upon a prosecution, for robbery accompanied by an assault, the admission of evidence that one jointly charged with the respondent had blood on his sleeve when arrested, soon after the robbery, is not error, where it is followed by evidence that the parties were seen together shortly before and after the robbery, and the jury are instructed to disregard such evidence unless they are satisfied that both parties were participants in the crime.
    2. Same—Unwilling Witness.
    It is not error to permit the prosecuting attorney to put leading questions to one of his own witnesses, or even to call the attention of such witness to an affidavit previously made by her, and which is inconsistent with her evidence on the trial, where it is evident that she is an unwilling witness, and is endeavoring to screen the accused.
    3. Same—Evidence—Hearsay.
    Evidence that, prior to respondent’s arrest upon a criminal charge, a third person told the officer who was attempting to find the guilty parties that he knew who they were, and would help arrest them, and that such officer, being then unable to go, sent with such third person another officer, who arrested the accused and another person for the " commission of the crime, is hearsay merely, and its admission is reversible error, where the main question at issue is the identity of the respondent with the person committing the offense charged.
    Exceptions before judgment from Calhoun; Smith, J.
    Submitted November 17, 1896.
    Decided December 18, 1896.
    Edward Gillespie was convicted of robbery from the person;
    Reversed,

      Loud & Loud, for appellant.

      0. Scott Clark, Prosecuting Attorney, for the people.
   Long, C. J.

Respondent and one William Gannon were jointly informed against for robbery from the person of Homer Campbell. On March 25,1895, about 8 o’clock in the evening, Campbell was in the basement of his mill in the city of Albion, and was there assaulted by two men, one of whom struck him with some blunt instrument, rendering him partially unconscious, so that he was unable to identify either of the parties who assaulted him, and who took from his person two dollars. Some considerable evidence was given on the trial tending to identify the respondent and Gannon as the parties who committed the assault and robbery, although counsel for respondent claim here that there was not sufficient evidence to go to the jury upon that question. It is unnecessary to recite the testimony, as we are satisfied that the jury were warranted from the circumstances and the testimony in believing that respondent and Gannon were the persons who committed the assault.

Respondent and Gannon were not found together at the time of their arrest, and the prosecution was permitted to show that Gannon, when arrested, had some blood upon his coat sleeve. Counsel contend that the court was in error in permitting this to be shown until some proof was first made connecting the two together in making the assault. There was some evidence of the parties’ being together both prior to and after the assault, and the court properly permitted the evidence as to Gannon’s appearance after the arrest, especially as the court, in its charge to the jury, instructed them:

“This evidence was proper, but it can cut no figure in the case only so far as Mr. Gillespie is shown to be connected with Gannon in this alleged robbery. In other words, testimony against Gannon, if there is any such testimony, statements he made, if he made any, his actions or his conduct, and the condition of his clothing, if there is any such evidence, cannot be taken in any way against Gillespie, unless from the testimony in the case you believe he and Gannon were together in this affair, acting in concert, and are the parties who committed this robbery.”

One Tessie Mills was called by the people as a witness, and testified that on the evening in question she was in the mill, and saw the assault committed by two men. She was then asked who these men were, and stated she could not tell. The prosecution conducted her examination to considerable length, and it is apparent from her answers that she was reluctant to tell any fact which came to her knowledge that night. It was only by leading questions, which the cqurt permitted, that the witness could be induced to answ t. . The prosecution claimed to be surprised by her testimony, and asked her if she did not make an affidavit in relation to the matter, in which she stated substantially that the respondent was one of the men who committed the assault, and that she did not know the name of the other, but would know him if she saw him again. She was asked if this statement in the affidavit was read over to her, and denied that anything of this kind was read over to her. It is contended that respondent was prejudiced by this manner of examination of the witness. A reading of the record shows very clearly that the court was not in error in permitting the prbsecution, not only to ask leading questions of the witness, but to' call her attention to an affidavit that she had theretofore made, as her further testimony shows that she was well acquainted with Gillespie, was with him that night both before and after the assault, and that upon one occasion, at least, a stranger was present, though the witness, did not admit that he was Gannon. Her testimony further showed ah effort on her part to screen Gillespie. It was not claimed by the prosecution that what she 'stated in this affidavit was substantive evidence of the facts there recited, but the affidavit was used for the purpose of inducing the witness to state what she knew of the facts; and we think the course pursued by the prosecution was fully warranted, under the rule laid down in People v. Case, 105 Mich. 92,

It is further contended by counsel for respondent that the court erred in admitting testimony of one D. L. Harrison. Among other things, this witness testified:

About 11 o’clock, I ran onto Walt Courtright. Walt came to me, and told me that he knew where they were, and who they were, and wanted to know what I would give him to help catch them. I told him I would give him $5. He says: ‘ I’ll let you. know in a little while.’ So I waited around there a spell, and talked with several ones, until he came back, and says: ‘ I have struck the right parties. You give me your revolver, and I’ll go with you, and get them.’ I couldn’t go, and I sent Mays. After capturing Gillespie, and taking him to the cooler, they got this tramp, named William Gannon.”

This testimony was taken under objection of counsel for respondent; and it is contended that it must have had great weight with the jury upon the question of the identity of the parties; that the statement by the witness as to what Courtright said was mere hearsay, and could but be taken by the jury as evidence that Courtright knew the parties who committed the assault, and was able to make the arrest at once. We think counsel’s contention is correct, and that it was error which was prejudicial to the respondent. For this reason the conviction must be set aside, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    PEOPLE v. De GROOT.
    I. Intoxicating Liquors—Place of Sale.
    Where orders for beer are taken by an agent at A. and sent to the principal at B., and the goods are shipped in gross to the agent, who delivers the same and collects the money therefor, the sales are made at A.
    3. Same—Liability of Agent.
    ■ One who sells liquor as agent of a corporation which has not paid the tax or filed the bond required by law may be informed against as principal.
    Exceptions before judgment from Ottawa; Padgham, J.
    Submitted November 17, 1896.
    Decided December 18, 1896.
    Auke De Groot was convicted of a violation of tbe liquor law.
    Affirmed.

      Henry J. Felker, for appellant.

      Frecl A. Maynard, Attorney General, and Arend Visscher, Prosecuting Attorney, for the people.
   Moore, J.

. The respondent was charged with a violation of the liquor law at the village of Zeeland, in Ottawa county. The undisputed facts are that the respondent had paid no tax in Ottawa county, and had filed no bond there. He claimed to be acting as the agent of the Grand Rapids Brewing Company, which had its place of business in Grand Rapids, Kent county. This company had paid no tax, nor had it filed a bond, in Ottawa county, though it had done both in Kent county. The respondent took orders from various persons for beer in quantities of eighth or quarter barrels, and not for less amounts. When he had obtained a sufficient number of orders, he sent them to the brewing company, who forwarded to him at Zeeland as many eighth or quarter barrels of beer as his order called for. Between November 12, 1895, and February 6, 1896, it had forwarded to him 97 quarter barrels and 64 eighth barrels, all of which were consigned to the respondent, or to the Grand Rapids Brewing Company, care of A. De Groot. None of them were consigned to the individuals who gave the orders. When the beer arrived at Zeeland, the respondent took it to his place of business, and, if the weather was warm, j>ut the beer in his ice box, and, if the weather made it necessary, put the beer in his cellar, and delivered it to the persons who had ordered it when they called for it, collected the pay, and forwarded it to the company. He was paid by the month for his work. It is his contention that these acts do not constitute a violation of the law; that he was simply acting as agent for the brewing company; that it filled the orders at Grand Rapids, and that the sale was at Grand Rapids, and not at Zeeland; that the sale was made by the brewing company, and not by respondent.

We do not think this contention can be sustained upon any theory. The Grand Rapids Brewing Company, did not select from its stock any particular eighth or quarter barrel, and consign it to the individual who had given an order for it, thereby separating any given eighth or quarter barrel out from all the rest, so' that it could be identified as the property of the individual. Had any of this beer been lost or destroyed on its way to Zeeland, its loss would not have fallen on any of the individuals who had given orders to Mr. De Groot, and, so far as they are concerned, no sale was made to them in Grand Rapids, but it was made to them in Zeeland, if made to them at all. Perkins v. Dacon, 13 Mich. 81; Hahn v. Fredericks, 30 Mich. 223. So far as the individual orders were concerned, they were taken and filled, and payment thereon made, and the sale was made, at Zeeland.

For the purposes of this case it is not necessary to decide whether the sales which were made by Mr. De Groot were made by him as principal, or as agent of the Grand Rapids Brewing Company. Neither of them had paid the tax or filed the bond required by law in Ottawa county. It has been decided by this court that one who sells as agent of a corporation which has not complied with the law may be informed against as principal; and whether his sales were, made as agent of the brewing company or for himself, he would alike be guilty. People v. Soule, 74 Mich. 250.

The conviction is proper, and the court below is directed to proceed to judgment thereon.

The other Justices concurred.


author: Moore, J. Hooker, J.

text:
    CAMPBELL v. WAYNE CIRCUIT JUDGE.
    1. Judgment by Default—Return, of Service—Sufficiency.
    Proof of service of a copy of the declaration and notice of rule to plead upon each of the defendants in the action is necessary to authorize a judgment by default, and a return showing merely the service of “a copy” of the declaration and rule upon “the defendants” is insufficient.

      2. Same—Parol Evidence.
    A return of personal service made by a private person may be contradicted by the defendant.
    3. Same—Vacation of Judgment—Mandamus.

      Mandanms will lie to compel the vacation of a default judgment where the sworn statement of the judgment debtor that there was no personal service upon him is contradicted only by a return of service made by a private person, and the relator further shows that he had no knowledge of any of the proceedings in the cause until after the expiration of the time allowed for suing out a writ of error, and that he moved to set them aside as soon as he did learn of them, and the testimony brought up with the petition fails to disclose any liability on his part to the plaintiff in the action.

      4. Rule to Plead—Entitlement—Sufficiency.
    A rule to plead is not fatally defective because not entitled in the names of all the defendants, where the copy served is indorsed upon a copy of the declaration^ in. which all parties are correctly named.

      Mandamus by Forrest S. Campbell to compel Joseph W. Donovan, circuit judge of Wayne county, to set.aside a default judgment.
    Submitted November 17, 1896.
    Granted December 18, 1896.

      George H. Prentis, for relator.

      Edwin E. Gonely (Edwin Henderson, of counsel), for respondent.
   Moore, J.

Application for mandamus to set aside judgment. The facts upon which this application is based, so far as it is necessary to state them, are as follows: February 7, 1883, Marion Smith filed a declaration, as plaintiff, as commencement of suit against Colin Campbell, Forrest Campbell, and John M. Campbell, late partners as Colin Campbell Sons. The rule to plead, entered the same day, was entitled “Marion Smith v. Colin Campbell et al., Late Partners, etc., under the Firm Name of Colin Campbell Sons,” and read: “State of Michigan. The Circuit Court for the County of Wayne. On filing declaration, * * * it is ordered that the defendants in said cause appear and plead,” etc. The declaration was not accompanied by any copy of a note. No return was made to the declaration until February 8, 1887, when the following return was made under oath, upon a copy of the declaration, which was filed with the clerk •

“State oe Michigan,

County of Wayne,

“Albert E. French, being duly sworn, says that on the 7th day of February, 1883, he served a declaration, of which the within is a copy, on Colin Campbell, Forrest Campbell, and John M. Campbell, the defendants named in said declaration, by delivering to said defendants, in .said county of Wayne, a true copy thereof, together with a true copy of the notice to appear and plead, indorsed thereon as hereon indorsed.” (Signed and sworn to.)

Mr. French was not an officer.

The death of Colin Campbell was afterwards suggested of record, and there was a substitution of attorneys. It is claimed that these orders were made without notice to defendants. June 6, 1887, and June 11, 1887, default orders were entered. June 13, 1887, an order was made discontinuing the cause as to John M. Campbell, as executor of Colin Campbell, deceased. It is claimed that this was done without leave of court, and without notice, and without payment of costs. On the same day an entry was made in the cause, in the short book, of a judgment on default for $1,759.86, and a judgment entry was made in the journal of the court for $133.07. This journal entry was never signed by the circuit judge.

January 31, 1895, an entry was made on the short book as follows, after entitling the cause: “Amended judgment entered nunc pro tunc, as of June 13, 1887.” And on the same day an entry was made in the journal in favor of plaintiff for $1,759.86, which judgment was entered nunc pro tunc, as of date of June 13, 1887. Both of these entries were made without notice to defendants. The relator sets up in his amended petition that there was never any service of a declaration, notice, or process of any kind in the cause upon him, and that he had no knowledge of the entry of any of the rules, orders, or judgments made in said cause until long after January 31, 1895, when it was too late to remove the cause to this court by writ of error. He also sets up that he is not now, and never was, indebted to the plaintiff in any sense whatever; that, as soon as he' learned of said proceedings, he moved the court to vacate said judgments, which motion was, on the 39th of June, 1896, denied. Accompanying the petition is a copy of all the testimony taken by the stenographer at the time the several judgments were taken, in which testimony it is not made to appear that there was any liability on the part of the defendants to the plaintiff.

It is evident that, unless the writ prayed for issues, there is no way for the relator to have the proceedings reviewed. If the facts stated in his petition are true, a great injury would be done him to allow the judgment to stand against him. The proof of service does not show that a copy of the declaration and rule to plead was served upon each of the defendants. This service must be shown before default and judgment can be taken. 2 How. Stat. § 7291; Denison v. Smith, 33 Mich. 155; Johnson v. Delbridge, 35 Mich. 436; Detroit Free Press Co. v. Bagg, 78 Mich. 650; People’s Mut. Ben. Soc. v. Wayne Circuit Judge, 97 Mich. 627.

The affidavit of the relator that the declaration was not served upon him was not answered by the respondent in any way except by the return of Mr. French. It was held, in the case of Detroit Free Press Co. v. Bagg, supra, that a return of personal service made by a private person is open to contradiction by the defendant, and he is at liberty to show that no such service was made upon him. Under the showing made with reference to the service, the judgments should have been vacated.

It will not be necessary to discuss any of the other questions raised by counsel, except to say that, while the form of the entry of the rule to appear and plead is not to be commended, in view of the fact that the copy served, if any was ever served, was indorsed upon a declaration in which relator was made a party defendant, the objection taken to it by counsel is overruled.

Writ will issue as prayed.

Long, -C. J., Grant and Montgomery, JJ., concurred.

Hooker, J.

I concur in the result, upon the ground that the judgment is void upon its face for want of proper service of process.


text:
    ROUSE, HAZARD & CO. v. DETROIT CYCLE CO.
    1. Partnership Associations—By What Law Governed.
    Limited partnership associations, organized and existing under chapter 79 of 1 Howell’s Statutes, are governed by the law of corporations, rather than by the law of limited partnerships.
    2. Same—Subscriptions to Stock—Payment by Promissory Notes—When Valid.
    A subscriber to the capital stock of such an association may, with the consent of the other subscribers, pay for the stock subscribed for by him by giving his promissory notes therefor, and such payment renders his stock paid up as against 'creditors of the association; particularly.where the notes are at once converted into money, which is applied for the benefit of the association.
    3. Same—Fraud—Good Faith—Question for Jury.
    The good faith of a transaction whereby the stockholders of a- limited partnership association, which had become insolvent, gave their promissory notes for the unpaid portions of their subscriptions to the capital stock, and whereby the notes were immediately turned over to the principal creditor, who advanced money to pay certain outstanding indebtedness and arranged to continue the business, is a question for the jury.
    4. Receivers—Defenses—Res Judicata.
    The fact that a receiver had been appointed for a limited partnership association prior to the issuance of a mandamus to compel the circuit judge to order the production of the books of the association for the purpose of ascertaining the amount of capital stock remaining unpaid, and to cause execution to issue therefor, does not, where there was nothing in the record in the mandamus proceedings to indicate that a receiver had been appointed, render the defense that the receiver is entitled to all the assets unavailable, upon the trial, to stockholders who were not made parties to the mandamus proceedings, and who had appeared before the court below only to protest against its entertaining jurisdiction over them.

      5. Same—Partnership Associations—Creditors—Right to Execution.
    A creditor of a limited partnership association of winch, a receiver lias been appointed is not thereafter entitled to issue execution on his judgment against subscribers to stock of the association whose subscriptions are not paid up.
    Error to Wayne; Erazer, J.
    Submitted April 24, 1896.
    Decided December 24, 1896.
    Proceedings by Rouse, Hazard & Company to obtain the issuance of execution against Edwin B. Robinson, John A. Matheson, and John T. Holmes for the unpaid portions of their subscriptions to the capital stock of the Detroit Cycle Company, Limited. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Reversed.

      Atkinson & Atkinson, for appellant Robinson.

      Malcolm McGregor, for appellant Matheson.

      Jonathan Palmer, Jr., for appellant Holmes.

      Bowen, Douglas & Whiting, for appellee.
   Moore, J.

Rouse, Hazard & Co., the plaintiff in these proceedings, recovered a judgment upon November 3, 1894, for the sum of $1,761, damages and costs, in the Wayne circuit court, against the Detroit C3rcle Company, Limited. Hpon this judgment, execution was issued, and returned wholly unsatisfied, after being in the hands of the sheriff of Wayne county for more than 20 days. The Detroit Cycle Company, Limited, is a limited partnership association, organized and existing under chapter 79 of 1 Howell’s Annotated Statutes; and the defendants herein, Edwin B. Robinson, John A. Matheson, and John T. Holmes, were the original subscribing members thereof, and remained so during the whole course of the proceedings in this case. After the execution was returned unsatisfied, plaintiff applied to the Wayne circuit court, under the provisions of section 2366, 1 How. Stat., to have ascertained the amount of the subscriptions, respectively, of the defendants to the capital of the Detroit Cycle Company, Limited, not paid up, and for an order that execution issue against said defendants for the amounts so ascertained. The defendants successfully resisted this application in the circuit court, and thereupon the plaintiff applied to this court for a writ of mandamus to require the circuit judge “to compel the Detroit Cycle Company, Limited, and the defendants, to produce the books of the company, especially its subscription list book, showing the names of the members of the association, and the amount of capital remaining to be paid upon their respective subscriptions, and also to receive such other evidence as might be offered by the plaintiff and the members of the association concerning the amount of capital remaining to be paid upon the subscriptions of the respective members of the association, and, after ascertaining the truth in regard thereto, to forthwith order execution to issue against the said members for the amount of their unpaid subscriptions, if any there should be.” The writ was granted after argument in this court, and the case is reported as Bouse, Hazard & Co. v. Donovan, 104 Miclfi 234.

On the filing of the defendants’ answers to the plaintiff’s application, an issue was framed, and ordered tried ^.before a jury. The issue was:

“In what amount, if any, are the said John T. Holmes, John A. Matheson, and Edwin B. Robinson, and any or each of them, indebted to the said Detroit Cycle Company, Limited, on account of any unpaid subscriptions to the capital of the said company ? ”

This issue was tried before the Honorable Robert E. Frazer, circuit judge, with a jury, on April 16, 1895; and, under the charge of the court, the jury found that each of the defendants was indebted to the Detroit Cycle Company, Limited, on account of unpaid subscriptions to the capital stock of the said company, in the sum of $1,833.33. Certain points of law were reserved by the court for argument after the verdict was rendered; and after an argument of these questions, in accordance with the statute (1 How. Stat. § 2366), and the mandate of this court, an execution was ordered on January 8, 1896, and issued, against each of the defendants, for the amount of $1,833.-33, or so much thereof as might be necessary to satisfy plaintiff’s judgment, with costs. This order, and the proceedings upon which the same was based, defendants are now endeavoring to review in this court by writ of error.

The Detroit Cycle Company, Limited, filed its articles in the office of the register of deeds for Wayne county, Mich., as a limited partnership association, under the provisions of chapter 79 of 1 Howell’s Annotated Statutes, on November 1, 1892. The defendants were the original members of said association, and subscribed for equal subscriptions, amounting to the sum of $3,333.33 for each defendant. There was paid in by each member thereafter the sum. of $1,500, in cash; and there remained still unpaid by each of said members up to about the 6th day of October, 1893, the sum of $1,833.33. On or about October 6, 1893, the association became financially embarrassed, owing the Gormully & Jeffery Manufacturing Company, of Chicago, between $14,000 and $16,000, and owing two local banks in Detroit about $6,000. The debts to the banks were in the form of notes made by the Detroit Cycle Company, Limited, and indorsed by all three of the defendants individually, and were further collaterally secured by an assignment of bicycle contracts. An arrangement was made between the Gormully & Jeffery Manufacturing Company and the defendants, whereby the Gormully & Jeffery Manufacturing Company was given a chattel mortgage on all the property of the Detroit Cycle Company, Limited; and at the same time there were assigned to the Gormully & Jeffery Manufacturing Company all the bicycle contracts, including those held by the banks as collateral security. At the same time, and as a part of the same arrangement, each of the defendants gave to the Detroit Cycle Company, Limited, his note for $1,833.33, given for the purpose, as each of the defendants testifies, of paying up his subscription to the capital stock of the Detroit Cycle Company, Limited. These notes were immediately indorsed in the name of the Detroit Cycle Company, Limited, by the defendants, and turned over to the Gormully & Jeffery Manufacturing Company as a further security for the indebtedness of the Detroit Cycle Company, Limited, to it. Thereupon the Gormully & Jeffery Manufacturing Company advanced enough money to take up the notes of the Detroit Cycle Company, Limited, in the two local banks in Detroit; and, these notes having been taken up, the collateral security for the same was turned over by the banks to the Gormully & Jeffery Manufacturing Company. These notes were all payable in one year from the date they bore, namely, October 6, 1893, with 6 per cent, interest, and were never paid by the defendants, and were never protested, though they are still outstanding. Immediately after the chattel mortgage was given to the Gormully & Jeffery Manufacturing Company, the latter sent a man to Detroit, to take charge of the business of the Detroit Cycle Company, Limited; and the Gormully & Jeffery Manufacturing Company sent on new goods, and conducted the business.

No amendments of the original articles of association, and no schedule, as provided for in 1 How. Stat. § 2365, or any other paper except the original articles of association, were ever filed in the office of the register of deeds for Wayne county, Mich. It also appeared that in the secretary’s records of the minutes of the stockholders’ and directors’ meetings of the association, running from October 14, 1892, to January 11, 1894, no record anywhere appeared authorizing or making a call for the unpaid subscriptions of the capital stock of the association, or authorizing the receipt of the respective members’ notes therefor, although under date of October 6, 1893, there is a record of a meeting of the directors, and the authorization by them of the execution and delivery of a chattel mortgage to the Gormully & Jeffery Manufacturing Company. The absence of any record of the receipt of the members’ notes was explained by the secretary from the fact that Ee did not enter the minutes of all the meetings in his record, although one of the three members testified that he did not hear of any resolution do this effect, but that it was only agreed to between the members.

The defendants requested the court to charge the jury as follows:

“3. It appearing from the undisputed evidence in this proceeding that the defendants gave their promissory notes-to the company for the amount of their unpaid subscriptions, which notes were accepted by the company in payment thereof, and which notes are now in the hands of third parties, and the defendants are liable thereon, the verdict must be for the defendants.

“4. It appearing from the undisputed evidence in this suit that the defendants gave their promissory notes for the amount of their unpaid subscriptions to the company, which notes were taken by the company, and the amount thereof realized in cash, and applied upon existing indebtedness of the company, the making of said notes and realization of the money upon them constituted a payment of said unpaid subscription, and the verdict must be for the defendants.”

“If the foregoing are refused—

“6. If the jury believe that the notes in question were given in payment of the unpaid subscriptions, and were accepted by the company as such, and by them transferred to third parties, who now hold them, and the defendants are liable thereon, then the verdict must be for the defendants.

“7. If the jury believe that the notes in question were given for the purpose of paying up the unpaid subscriptions, and the same were taken, and cash realized upon them, which cash was applied in satisfaction of existing indebtedness of the company, so that the company received full benefit thereof, the giving of the notes and the application of the proceeds thereof constituted payment of the subscriptions, and the verdict must be for the defendants.”

The trial judge declined to give these requests. He entertained the view that the statute authorizing the formation of these limited copartnership associations is a special enactment, permitting such organizations with limited liability as to stockholders, and that all the necessary and essential requirements of the statute must be complied with. He held that this had not been done, and that whether the notes had been given and received for the purpose of paying the balance due on subscriptions was not important, and directed a verdict against the defendants.

It is the claim of the plaintiff that the law as applied to limited partnerships is to be applied to associations like the defendant, and that subscriptions to the capital cannot be paid by giving notes. On the part of the defendants it is claimed that the law as applicable to corporations should be applied to these associations, and that if defendants gave their notes to pay for the capital subscribed by them, and these notes were received by the defendant association as payment, and the proceeds of the notes were received by the association, and applied to the payment of its debts, this would constitute a good payment of the capital subscribed, and would release the members from further liability?

Nearly all the questions involved in this proceeding are involved in the case of Staver & Abbott Manfg. Co. v. Blake, post (decided at the present term of court). It will not be necessary to refer to the opinion in that case further than to say that, as to the question of whether the law of limited partnerships applies to the defendant association, or the law of corporations, the answer is that the case must be controlled by the law applicable to corporations.

We have no doubt that subscriptions to capital stock of corporations may be paid by the giving of promissory notes, especially if the notes are at once converted into money, and the proceeds applied for the benefit of the corporation. Goodrich v. Reynolds, 31 Ill. 490 (83 Am. Dec. 240); Hardy v. Merriweather, 14 Ind. 203; Stoddard v. Foundry Co., 34 Conn. 542; Magee v. Badger, 30 Barb. 246; Vermont Gentral R. Co. v. Clayes, 21 Vt. 30; Pacific Trust Co. v. Dorsey, 72 Cal. 55; Clark v. Farrington, 11 Wis. 306; Blunt v. Walker, Id. 349 (78 Am. Dec. 709); Lyon v. Ewings, 17 Wis. 61; Andrews v. Hart, Id. 297; Western Bank of Scotland v. Tallman, Id. 530. It is the claim of the plaintiff that the notes were not given in good faith, and for the purpose of paying up the unpaid portion of the capital. We think the good faith of the transaction was a question for the jury, and that they should have been instructed as requested by counsel for defendants in the sixth and seventh requests to charge.

The record discloses that, upon the application of the plaintiff’s attorneys, the circuit court, in chancery, had appointed a receiver for the defendant company, Joseph F. Noera filing the creditor’s bill. A judgment creditor’s bill was also filed by William A. Hulbert et al. against the defendants. John A. Stanbery was appointed receiver in both cases, and claimed the assets of defendant company. Both chancery suits are still pending. The solicitors for the complainants, in their behalf, and in behalf of the receiver in both cases, in open court, waived all claim to any of the unpaid subscriptions to the capital stock of the defendant that were unpaid by Robinson, Matheson, and Holmes, as against the claims of the plaintiff. Objection was made to this offer, and the court replied that he had serious doubt of the power of the receiver to waive the claim, or of the court to grant the waiver, but expressed himself as being settled in relation to the other points in the case. Defendants also introduced in evidence an application for execution under the same statute as is invoked in this proceeding, against the same defendants, for the same unpaid subscriptions, upon a judgment recovered by the W. Bingham Company, plaintiff, against the defendant association, in the circuit court of the United States for the Eastern district of Michigan. The defendants asked to have the following requests to charge given to the jury:

“1. A receiver of all the property and assets of the defendant company having been appointed prior to the judgment in this suit, and being now in office, the plaintiff has no standing in this proceeding, and is not entitled to the order asked. '

“2. It appearing that, since judgment was rendered in this suit, a receiver has been appointed in another suit of all the property and assets of the defendant company, the plaintiff has no standing in this suit, and is not entitled to the order asked.”

“5. It appearing from the evidence in this case that an application similar to the one in the present case has been made against the defendants in the circuit court of the United States for the Eastern district of Michigan, upon a judgment recovered against the Detroit Cycle Company, Limited, by the W. Bingham Company, the defendants are therefore liable to have execution issued against them in each case for the amount of their subscriptions remaining unpaid, and to be subjected to a double liability not contemplated by the statute under which the defendant association is organized. This being so, the plaintiff’s remedy is in equity, where the rights of all parties can be protected, and not by an application for an execution, such as is now pending before the court.”

The court refused to give either of these requests. This is assigned as error. It is now urged by counsel for plaintiff that defendants cannot avail themselves of any defense they may have to this action, growing out of the appointment of a receiver, for the reason that the receiver was appointed before these proceedings were begun, and before the mandamus case of Rouse, Hazard & Co. v. Donovan, 104 Mich. 234, was decided. It is their claim that as the defense might then have been interposed, and was not, the matter must be treated as res adjudicata. An inspection of the Case of Rouse, Hazard & Co. discloses that neither of the defendants Holmes, Matheson, or Robinson were parties to that proceeding, or that they took any part in it, except to appear in the case before the circuit judge, and enter their protest against the circuit judge’s entertaining jurisdiction over them. There was nothing in the record to indicate that any receiver had been appointed, and we are not prepared to hold that the case is res adjudicate/,. The record as now made does disclose that, before this proceeding was brought, a receiver was appointed by the chancery side of the court; and he still holds his appointment. A receiver is an officer of the court. He is undoubtedly entitled to the assets of the defendant company, if it has any. He is spoken of as the “hand of the court.” High; Rec. § 2. It would be a very anomalous position, indeed, if this proceeding could be maintained after a receiver had been appointed for the very purpose of collecting the assets of the defendant association to pay its creditors. Defendants’ requests 1 and 2 should have been given.

Judgment is reversed, and no new trial ordered.

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


author: Montgomery, J.

text:
    FERRY v. CINCINNATI UNDERWRITERS.
    Garnishment — Insurance Companies Doing Business Under Common Name—Joint Liability.
    Two insurance companies which issue policies together under a common name may be garnished under such name by creditors of a policy-holder for the amount due under his policy, and a single judgment taken, although it appear upon the trial that, by the terms of the policy, the liability of the companies is several for their proportionate share of the loss.
    Error to Wayne; Donovan, J.
    Submitted October 9, 1896.
    Decided December 24, 1896.
    Garnishment proceedings by Henry M. Ferry against the Cincinnati Underwriters, as garnishee of the S. H. Davis Company. From a judgment for plaintiff, the garnishee brings error.
    Affirmed.

      Bowen, Douglas & Whiting, for appellant.

      Ed. E. Kane, for appellee.
   Montgomery, J.

Plaintiff sued the S. H. Davis Company, and garnished the defendant, alleging in the affidavit that it is a body corporate, organized and existing under the laws of Ohio; and service was made upon J. C. Burton, as agent of the company. Defendant made disclosure, by its agent, James C. Burton, admitting an indebtedness to the S. H. Davis Company, principal defendant; and • subsequently an amended disclosure was filed, in which it is stated that defendant is not a corporation, but it is further stated that the Cincinnati Underwriters, of Cincinnati, Ohio, is the business name used by the Eureka Fire & Marine Insurance Company, of Cincinnati, Ohio, and the Security Fire Insurance Company, of Cincinnati, Ohio, while doing business jointly, and that each of these insurance companies is a corporation organized and existing under the laws of Ohio. This amended disclosure further admitted an indebtedness on the part of each of these two companies, in the sum of $681.14, subject to certain prior writs of garnishment.

Certain preliminary objections are made to the proceedings, which we think it not necessary to discuss. The first is ruled by Muncey v. Insurance Office, 109 Mich. 542, and the second by Wellover v. Soule, 30 Mich. 481.

On the trial, the plaintiff introduced evidence to show that the liability to the principal defendant arose upon a policy of insurance which ran, in part, as follows:

“The Cincinnati Underwriters, by this policy of insurance,—the Eureka Fire & Marine Insurance Company, of the city of Cincinnati, and the Security Fire Insurance Company, of the city of Cincinnati, each acting and contracting for itself, and not for the other,—in consideration, * * * do insure the S. H. Davis Company * * * to an amount not exceeding two thousand dollars, one-half of said amount being insured by the Eureka Fire & Marine Insurance Company, and one-half by the Security Fire Insurance Company, to the following described property, while located and contained as described herein,” etc.

Defendant insists that, under this proof, the liability shown was a several liability on the part of each of these two companies, and that no joint judgment could be taken against both.

2 How. Stat. § 8092, provides that—

“Two or more persons, severally liable, may be garnished in the same action, and their disclosures and all other proceedings shall be several, and judgment shall be rendered for such sum as the court shall order, for or against each severally, and execution may issue accordingly.”

Under this statute it was held, in Ball v. Young, 52 Mich. 476, that two or more cannot be held as garnishees, unless the liability to the principal debtor is joint.

The situation of this case is certainly unique. It is conceded by defendant’s counsel that a corporation may have several names, and can be sued in one name or the other, and parol evidence introduced to identify the organization. See Walrath v. Campbell, 28 (Mich. Ill. The first disclosure in this case shows that the Cincinnati Underwriters is a corporation under the laws of Ohio. The amended disclosure shows that this is a mistake, but that the Cincinnati Underwriters is the business name adopted and used by the Eureka Fire & Marine Insurance Company and the Security Fire Insurance Company, and that an indebtedness exists On the part of each of these companies to the principal defendant. It is insisted, as before stated, that the affidavit in garnishment should have alleged several liability on the part of each company. But, if each had made itself liable to be sued as the Cincinnati Underwriters, it is difficult to see how this was necessary, as the affidavit could do no more than repeat the same name and the same allegation of indebtedness. It is clear that, up to the time the second disclosure came in, the plaintiff was not in fault in proceeding against whoever the debtor to the S. H. Davis Company was in the name of the Cincinnati Underwriters. Nor does the second disclosure indicate that the liability of the two insurance companies is several. It states that the Cincinnati Underwriters is the business name used by the companies while doing business jointly; that, prior to the issue of the writ of garnishment, the two companies, each corporation as aforesaid, jointly, under the business name of the Cincinnati Underwriters, issued afire-insurance policy ; and that each of -the said corporations was indebted to the said S. H. Davis Company. It is only on the trial that it appears that the liability of the two companies is several. The fact remains that each had done business in the name of the Cincinnati Underwriters, and that each was liable to suit in that name.

We think the judgment should be affirmed.

The other Justices concurred.


text:
    FORSTER v. GREEN.
    Master and Servant—Extra Services—Estoppel.
    An employe of a widow is estopped to claim compensation from the trustees of the estate of her deceased husband for services in watching property belonging in part to the widow and in part to the estate, where it is ax>parent that the joint agent of the widow and of the-estate, who directed him to watch the property, supposed that such duty came within his employment, and the employé did nothing to indicate that he expected extra compensation therefor, and for two years gave monthly receipts importing payment by the widow “in full” for services to date,
    Error to Wayne; Aldrich, J., presiding.
    Submitted October 20, 1896.
    Decided December 24, 1896.

      Assumpsit by Andrew Eorster against William S. Green and another, trustees of the estate of William B. Wesson, deceased, for work and labor performed. From a judgment for plaintiff, defendants bring error.
    Reversed.

      Julian G. Dickinson, for appellants.

      William Look and Ira G. Humphrey (Edward Minock, of counsel), for appellee.
   Montgomery, J.

Defendants are trustees of the estate of William B. Wesson. Defendant Green also acts as agent for Mrs. Wesson, paying her bills, and taking receipts therefor, and accounting to her. Defendant Green employs one John Brinket, who was a former employé of Mr. Wesson in his lifetime, and who still continues to look after Mrs. Wesson’s affairs to some extent. In the spring of 1891, plaintiff was employed to work for Mrs. Wesson. Mr. Brinket did the business for Mrs. Wesson, and testifies that the hiring was under instructions from Mrs. Wesson, and that he did not confer with defendants at all about hiring plaintiff. Witness Brinket, who was called for the plaintiff, also testified that he had no general authority to employ workmen in behalf of the defendants, and that he never hired any men except under special instructions from Mr. Green. According to the plaintiff’s testimony, after he had been employed some time, he' was told by .Mr. Brinket to go up and watch a grove on Baldwin avenue. This grove belonged in part to the Wesson estate, and in part to Mrs. Wesson. Plaintiff proceeded to follow this instruction, and, as he testified, visited this grove four or five times a week from March, 1892, to September, 1894, and this action is brought to recover for these services; plaintiff claiming that the direction to go and look after this grove amounted to an independent hiring on behalf of the defendant estate. During all this time, at the end of each month, plaintiff was paid his $40 per month, and signed receipts, both before and after March, 1892, reading, in substance, as follows: “Received of Lacyra E. Wesson, forty dollars, in full for services to date.” These payments and receipts continued down to the time that plaintiff ceased work.

Plaintiff’s own testimony as to the instructions given him to look after this grove is as follows:

“ On the first day of March, 1892, Mr. Brinket gave me the order to see to that bush,—so much timber was cut up.

“Q. How long did you work watching before you were ■ called to look to the grove ?

“A. From the 14th of May, 1891, to the 1st of March, 1892.

“Q. It was then you were ordered to look after the grove ?

“A. Yes, sir. I looked after the grove two years and a half. There was no bargain made as to how much I was to receive for watching the grove.

“Q. You said there was no bargain?

“A. No bargain.”

On cross-examination, witness testified:.

“Mr. Brinket was my boss. That was my first experience with Mr. Brinket. I haven’t ever been in his employ there before. He hired me. Whenever there was an order he gave me the order.

ctQ.„ You have stated how he hired you?

“A. Yes, sir.

“Q. He sent you to Mrs. Seyburn?

“A. Yes, sir.

“Q. And Mrs. Seyburn told you to go to work?

“A. Yes, sir; and I continued to watch inside the fence. I had nothing to do outside the fence. Mr. Brinket gave me an order to see after'the bush. I didn’t have any orders to go outside of the fence.

“Q. -Did you have any orders to do anything while you were there?

“A. Yes, sir; Mr. Brinket gave me an order to sprinkle the street. * * * I knew Mr. Brinket was my boss; that he bossed me afterwards once. I was not acquainted with his business before that, except that I knew that he was employed at the Wessons’. That is all that I knew. * * %

“Q. Why didn’t you demand pay for taking care of the grove before ?

“A. I was keeping my family up with them $40 I have for night work. I thought I would let that stand. Whenever I wanted it, I would call for it.

By a Juror: When you were asked by Brinket to do this extra work, was there anything said about your getting additional pay ?

“A. No; not a word.

“Q. Didn’t you say to him, at the time, that you expected to get additional pay ?

“A. I expected it.

“Q. Did you say that,to him?

“A. I told him a couple of times.

“Q. At the time you were engaged by him?

“A. No.”

On redirect examination, he was asked when he told Mr. Brinket that he expected pay for the additional work, and answered that he didn’t know the exact time.

“Q. What did he say about it?

“A. Oh, nothing.”

The circuit judge left it to the jury to find—First, whether Brinket had authority to make the contract; and,' second, whether there was an agreement that the estate should pay plaintiff such amount as such work was reasonably worth. We think the circuit judge erred in submitting the case to the jury upon the evidence offered. It is clear that these orders were given upon the assumption that the work demanded of plaintiff fell within his employment, and there was not the slightest indication by the plaintiff, at the only time any contract is alleged to have been made, from which Brinket or the defendants could draw the inference that he had any other understanding. And when the fact is taken into account that for nearly two years thereafter he signed a receipt in full for his services at the end of each month, the rank injustice of permitting him to assert a secret intention to make an additional charge for his services is plainly manifest. The case falls directly within the principle of Bartlett v. Railway Co., 82 Mich. 658.

The judgment will be reversed, with costs, and no new trial ordered.

The other Justices concurred.


text:
    MEAD v. RANDALL.
    1. Pleading—Joinder of Counts—Alienation of Wife’s affections.
    A count for alienating a wife’s affections may be joined with a count for seducing and debauching her, thereby causing the alienation of her affections.
    2. Husband and Wife—Alienation of Affections—Proof of Cohabitation—Admissibility.
    Proof that the parties lived together as husband. and wife is admissible in an action by a husband for the alienation of his wife’s affections, for the purpose of showing their harmonious relations prior to the alleged alienation, where the fact of the marriage has been established by other evidence.
    3. Same—Admissions—How Shown.
    The debauching by the defendant of the wife of plaintiff in such action may be shown by admissions contained in letters written by the defendant to the wife.
    4. Same—Letters—Proof of Receipt.
    In an action for the alienation of a wife’s affections, postmarked letters in defendant’s handwriting, addressed to plaintiff’s wife at her street and number, and showing on their face that they belong to a connected correspondence, are admissible in evidence upon proof that defendant, in the presence of a witness, admitted having written them, and produced letters from the wife, insisting that they constituted simply a friendly correspondence, although their receipt by the wife is not otherwise shown.
    5. Same—Pleadings in Divorce Suit—Admissibility.
    While the fact that plaintiff in such action has procured a divorce may be shown for the purpose of negativing a claim that there had been a reconciliation between the husband and wife, the bill of complaint in the divorce proceedings is inadmissible.
    6. Trial—Request for Special Finding—Modification.
    In an action for the alienation of a wife’s affections, defendant requested a special finding whether defendant and plaintiff’s wife were ever in plaintiff’s house together “when no one else was present. ” While the evidence did not directly show that no other person was present upon occasions testified to, the testimony all related to clandestine meetings. The.court struck out the qualifying words. Held, that, if the request was to be submitted at all, it should have been in the form as presented by counsel.
    Error to "Wayne; Donovan, J.
    Submitted October 7, 1896.
    Decided December 24, 1896,
    Case by Philip J. Mead against Joel M. Randall for the alienation of the affections of plaintiff’s wife. From a judgment for plaintiff, defendant brings error.
    Reversed.

      C. A. Hoioell (George Gartner and Andrew Howell, of counsel), for appellant.

      James H. McDonald (Frank P. Guise, of counsel), for appellee.
   Montgomery, J.

Plaintiff sued for alienation of his wife’s affections. The declaration contained three counts. The first alleged that defendant alienated and destroyed the wife’s affections for her husband; the second averred that defendant assaulted and debauched her, whereby her affections were alienated, etc.; the third, that plaintiff’s wife was seduced and debauched, whereby her affections were alienated, etc. At the opening of the trial, defendant asked that plaintiff be required to elect upon which count he would proceed, and, at the close of the testimony, asked instructions—First, that plaintiff was not entitled to recover under the first count; second, that he was not entitled to recover under the second count; third, that he was not entitled to recover under the third count. These requests were refused, and the jury gave a general verdict for the plaintiff, from which the defendant appeals.

In support-of the contention that the plaintiff should have been required to elect between his various counts, defendant’s counsel claim that the wrong of alienating the wife’s affections and the adulterous intercourse are distinct causes of action, citing the case of Perry v. Lovejoy, 49 Mich. 529. The question presented in that casé was whether, in an action for alienating the wife’s affections, proof of criminal conversation was admissible, where the declaration contained no averment of adulterous intercourse. It was held that such evidence was not admissible, and the language employed by Mr. Justice Graves must be understood as intended to be applied to the case in hand. It was said: “The present is a recognized action, wholly distinct from one for criminal conversation;” and that, “whether the form of action is case or trespass, the criminal intercourse must be substantially averred.” This language is strictly accurate. Before a plaintiff can be permitted to prove adulterous intercourse, he must allege it; and an alienation of the wife’s affections may occur by and through other means than seduction. But this is far from saying that such alienation may not occur by. means of seduction. The common-law form of declaration for criminal conversation includes an allegation that “thereby the affection of said (wife) was then and there alienated and destroyed;” and in 2 Chit. PI. (13th Ed.) 642, where this form is given, it is said in the note: “When it may be doubtful whether the criminal conversation can be proved, and the defendant has been guilty of enticing away or harboring the wife, it may be advisable to add counts for such injuries. ” The counts were properly joined.

To prove the marriage, plaintiff produced an original marriage certificate, and, after proving the signature of the clergyman, the same was received in evidence. He also offered a certified copy of the registry of marriage. It was also permitted the plaintiff to show that the parties lived together as husband and wife. This testimony was admitted by the court for the purpose of showing harmonious relations between the parties prior to the alleged tortious conduct by the defendant. The proof of the identity of the parties was clear and uncontradicted. This being so, the statute provides that the marriage certificate or a certified copy of the registry of marriage shall be presumptive evidence of the fact of marriage. 2 How. Stat. § 6222; People v. Isham, 109 Mich. 72; People v. Imes, 110 Mich. 250; 1 Am. & Eng. Enc. Law (2d Ed.), 756. There was no error, therefore, in treating this uncontradicted fact as established; and, »even if the jury may have considered the testimony of cohabitation as tending to prove marriage in fact, it could not have harmed the defendant, as the fact was proven by other competent and uncontroverted evidence.

The evidence offered to prove adulterous intercourse consisted of the testimony of various witnesses, neighbors of plaintiff, which testimony shows that, during the period covered by the declaration, plaintiff was a railroad conductor on the Fayette Branch of the Michigan Southern Railroad, and that his headquarters were at Fayette, Ohio, and consequently he was away from home almost constantly; that defendant was seen to visit the plaintiff’s house frequently, in the daytime and in the evening; that he was seen at various places about the city, with plaintiff’s wife; that he sometimes remained with her at unseemly hours; and, in addition, 42 letters, some of which contain suggestions for meetings couched in language which plainly implies an immoral purpose, and others of which, construed in connection with a previous assignation, tend strongly to show that illicit relations had been sustained. It is contended that these letters were not proof of the fact of adultery. It is said that the letters could, in any event, support no more than an inference of defendant’s guilty disposition, and were introduced and admitted in evidence not alone for this purpose, but to furnish the jury a basis upomwhich to found a suspicion of a like disposition and opportunity upon the part of the wife. The fault in this contention lies in the assumption that the letters show no more than an inclination and seeking of opportunity on the part of the defendant. We think, on the other hand, that certain of the letters, and particularly that of June 11, 1889, might well be construed by the jury, when taken in connection with the previous letters of June 6 th and 7th, as amounting to an admission of illicit relations; and we know of no rule peculiar to this class of cases which excludes admissions made by the party to the record.

It is further contended that the receipt of these letters. by the wife of plaintiff was not sufficiently shown by competent evidence. The letters and envelopes in which they were apparently inclosed were produced, and the son of plaintiff testified that this package of letters was presented by plaintiff to defendant in witness’ presence, and that defendant acknowledged having written them, and produced a package of letters written by plaintiff’s wife, and insisted that the correspondence was entirely a friendly one. This testimony was wholly uncontradicted, but was supported by other testimony, showing the letters to be in the handwriting of defendant. We are unable to see how the rulings relating to the proof of the genuineness of the letters, or their receipt by plaintiff’s wife, could have damaged defendant’s case, if not technically correct, as the writing of them was not only not in dispute, but was admitted by defendant, as appears by the uncontradicted testimony; and, aside from these admissions of defendant, the letters appear to have been addressed to plaintiff’s wife at her street and number, and to have been postmarked, and show on their face that they belong to a connected correspondence; and defendant’s admissions to the plaintiff, testified to by plaintiff’s son, cover the same ground.

After the commencement of this suit, plaintiff instituted proceedings against his wife for divorce, and obtained a decree. These proceedings were offered in evidence, and were received, subject to the objection that they were incompetent, irrelevant, and immaterial, and that no proceedings for a divorce, nor the divorce itself, is any evidence against the defendant. The record, including the bill of complaint, was received and read in evidence. In the bill of complaint, sworn to by plaintiff, he charged that his wife, in his absence and without his knowledge, carried on an extensive personal, friendly, and affectionate correspondence with other men, and associated with another man, without plaintiff’s knowledge, on the most friendly and affectionate terms, to the . public shame and disgrace of plaintiff. Plaintiff contends that these proceedings were admissible for the purpose of showing the status of the parties. We think it was competent for the plaintiff to show the fact of divorce, for the purpose of negativing any claim that there had been, up to that time, a reconciliation between the parties, plaintiff and his wife. But the bill of complaint, which was an ex parte statement of the plaintiff, not himself a competent witness, should not have been read in evidence. Much less should the jury have been permitted to consider it as substantive proof of the facts stated. See Dalton v. Dregge, 99 Mich. 250; Fletcher v. Railway Co., 109 Mich. 363.

Defendant, at the close of the trial, presented a request for a special finding, which read as follows: “Do you find from the evidence that Mrs. Mead and the defendant were ever in plaintiff’s house together when no one else was present?” The court submitted the request, after striking out the words “when no one else was present.” We need not determine whether it was the duty of the court, under the evidence in the case, to submit this request. It is clear that, if it was to be submitted to the jury at all, it should have been submitted in the form presented, as the evidence upon the subject of the meetings between Randall and plaintiff’s wife at plaintiff’s house was directed to clandestine meetings; and, while the evidence may not have been direct to show that no other person was present in the house on any of the occasions testified to, yet the circumstances were such as would enable the jury to draw an inference on that subject. We refer to this question, as it may be presented on another trial, and in fairness to the defendant.

We do not think the other questions in the case require discussion.

For the error pointed out, the judgment will be reversed, and a new trial ordered.

The other Justices concurred.


author: Long, C. J.

text:
    PHILLIPS v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Railroad Crossings—Duty or Travelers.
    A railroad crossing is, in itself, a warning of danger, and a person approaching it is bound to recognize the fact, and to make use of the sense of hearing, as well as the sense of sight, to enable him to avoid injury; and, if either sense cannot be rendered available, the obligation to use the other is the more clear.
    2. Same—Contributory Negligence.
    A deaf man -who drives upon a railroad track at a crossing without stopping to look for an approaching train is guilty of negligence, precluding a recovery for injuries caused thereby, although another vehicle, 175 feet ahead of him, has crossed in safety, and although it is unusual for a train to pass the crossing at the particular day and hour.
    3. Same.
    Such person is not excused from taking proper precautions by the fact that his view of the track is obstructed, especially if the difficulty may be overcome by sinrply standing upright in the vehicle.
    Error to Ionia; Dodds, J., presiding.
    Submitted October 20, 1896.
    Decided December 24, 1896.

      Case by Oscar Phillips against the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. Prom a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Vernon H. Smith and Clute & Clute, for appellant.

      L. C. Stanley (E. W. Mecldaugh and Geer & Williams, of counsel), for appellee.
   Long, C. J.

This action is brought to recover damages for an injury to the plaintiff by a passenger train at a highway crossing on the defendant’s road. On Sunday, June 4, 1893, a washout had occurred on the Chicago & Grand Trunk Railway, between Lansing and Durand, so that the through passenger train from Chicago eastward was taken from Lansing to Ionia, thence eastward to Du-rand, over the defendant’s road, passing through the village of Muir, where the accident happened. The train passed the station at Muir, without stopping, a little past noon, running at a rapid rate of speed, the witnesses varying in testimony in regard to it; some stating the rate as high as 45 miles an hour, and others about 20 miles. It was an irregular excursion train. Three blocks east of the depot, and about 1,170 feet distant, the train passed over Plain street at a grade. The plaintiff, a man about 67 years of age, quite deaf, lived at Portland, about seven miles from Muir, and on that morning, traveling from his home to Carson City, passed through the village of Muir. He entered the town from the south side on Prairie street, and turned eastward into Superior street, which is parallel with the track of defendant’s road, and about 200 feet distant from it. He traveled along Superior street about 1,170 feet, when he turned northward into Plain street. No train was in sight when he turned into Plain street. He was riding in a single carriage, with the top up and side curtains off, drawn by one horse, which was gentle and steady. Driving northward along Plain street, his view was for the most part obstructed, first by a dwelling-house, then by some bushes, a hen-house, and a pile of ties, the ties extending up to within 6 or 8 feet of the railroad track. The hen-house was about 6 feet high, and the ties, at the utmost, were only 9 feet high. The plaintiff did not stop his horse, but drove along to a point past the pile of ties, when, looking westward, he saw the train approaching, about 70 feet distant from him. 'His horse was then upon the track. He drove across, and the train caught the carnage, overturning it, and injuring the plaintiff severely, as well as damaging his horse and carriage. The negligence charged is:

1. That the defendant, by allowing the ties to remain there, and obstruct his view, led him into a place of danger.

2. That it failed to provide a watchman.

3. That the train was running at an unlawful rate of speed, and without sounding the bell or whistle.

4. That the defendant had no right or authority to run the train on Sunday.

At the close of the case, the court below directed verdict and judgment in favor of the defendant. Plaintiff brings error.

From the record it is apparent that the plaintiff took none of the precautions which the law requires of one who is about to cross a railroad track. Some claim is made that Stoddard, who was in advance of the plaintiff, passed over the track in safety, and that the plaintiff had the right to rely upon that fact, and was thereby not required to take the same precaution which he otherwise' would; but it appears that Stoddard was greatly in advance of plaintiff, and had turned the corner off Plain street, a distance of nearly 175 feet, before the plaintiff reached the crossing; and it does not appear that plaintiff in any manner relied upon the fact that Stoddard had passed safely over. Jensen v. Railroad Co., 102 Mich. 176; Houghton v. Railway Co., 99 Mich. 308. The plaintiff, if he could not see an approaching train by reason of these obstructions, was bound to use greater precautions in nearing the track. A person about to cross a railroad track is bound to recognize the danger, and to make use of the sense of hearing as well as of sight, and, if either sense cannot be rendered available, the obligation to use the other is stronger, to' ascertain, before attempting to cross, whether a train is in dangerous proximity; and if he neglects to do this, but ventures blindly upon the track, without any effort to ascertain whether a train is approaching, it must be at his own risk. This is the general rule settled in this State, but modified by the proposition that he is not bound to the same degree of care where he has no reason to expect a train to pass at that time. Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274; Guggenheim v. Railway Co., 66 Mich. 150. But the law requires a person to exercise a great degree of care in making these crossings. The track itself is a warning of danger; and, if one goes upon it heedlessly, he assumes the risk incident thereto. Here the plaintiff was quite deaf. It is apparent that he could not hear the noise of the train. He knew the track was there; was familiar with the road.. He could not see because of these obstructions, and yet he did not stop or take any other precaution to ascertain if a train was approaching. He had no right to rely upon the fact that it was Sunday, and that no train was likely to approach, and drive blindly on. He must exercise some care. We are unable to find that he exercised any, even the slightest, care. If he had stood up in his carriage, and looked westward, he could have seen over the hen-house and the pile of ties, and have seen the train when it was some 1,200 feet away. He did not stop, and, if he had, he was, it appears, too deaf to hear the rumbling of the train. The case, it seems to us, is one where the plaintiff was so manifestly guilty of contributing to his own injury that a recovery should not be permitted.

In Shufelt v. Railroad Co., 96 Mich. 327, it appeared that, if Mrs. Shufelt had stopped 18 or 20 feet from the crossing, she could have seen the train. Mr. Justice Hooker, in that case, speaking for a majority of the court, said:

‘ ‘ It was her duty to look both ways, after getting where she could see, before venturing upon the track, and she should have taken sufficient ’time to do so, though it became necessa^r to stop her team for the purpose. * * * A person is not justified In driving upon a straight track in the face of an approaching train without looking for it, and obstructions to the view in proximity to the track increase the obligation of extreme caution.”

The present case, upon its facts, shows more clearly the obligation resting upon the plaintiff, for not only was his view obstructed, but he was very deaf. Whatever view may be taken of the testimony, giving it all the latitude claimed by counsel for plaintiff, it is difficult to find in it any proof of care or caution taken by plaintiff, as he ran blindly into danger.

The contention of counsel that this was a Sunday excursion train, and unlawfully run, we think, can have a bearing only upon the question as to whether the plaintiff would not be required to exercise the same care in making the crossing. If he was not expecting a train, or had a right to assume that no train ever rhn on Sunday over that road, and he was relying upon that fact, it might, in a sense, excuse him from that degree of care that otherwise he was bound to exercise. But it is apparent from the record that, if the plaintiff had that in view, he did not take the precautions which the law requires, for even under such circumstances he had no right to go blindly upon the track. But, though it is the exception on that road to run Sunday trains, yet excursion trains frequently go over the road on Sunday.

The judgment must be affirmed.

The other Justices concurred.


text:
    PRICE v. DAWSON.
    Debtor and Creditor—Trusts—Evidence.
    The finding of the circuit judge that a sum of money advanced by complainant to defendant constitutes a loan at a stipulated rate of interest will not be reversed, and a trust declared as to the fund, because defendant unreasonably refuses to pay or secure the claim, and the transaction, under the circumstances, works a hardship upon the lender.
    Appeal from Wayne; Carpenter, J.
    Submitted October 23, 1896.
    Decided December 24, 1896.
    Bill by Abby Price against George JHeury Dawson and Josephine M. Dawson to enforce an alleged trust. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Moore & Moore, for complainant.

      George W. Goomer and William F. Atkinson, for defendants.
   Montgomery, J.

The complainant filed a bill to enforce an alleged trust. The bill sets up that, in the winter of 1891 and 1892, defendant Josephine represented to complainant that she could invest money in Michigan at a rate of interest exceeding 5 per cent, semi-annually, and solicited complainant to intrust to her some of complainant’s money for that purpose; and that she did intrust $2,500 to her in March, to be invested in complainant’s name, and upon the understanding that the excess of interest received over 5 per cent, should compensate defendant Josephine for her services. The bill also alleges that, subsequently, the further sum of $1,000 was intrusted to defendant Josephine under a like arrangement. The claim as to the $1,000 is no longer in controversy, it having been adjusted between the parties. The answer denies that the $2,500 was received in trust, and avers that the same was a gift to the defendant Josephine upon the agreement that she should pay to complainant 5 per cent, semi-annually, during her lifetime, on the amount.

Complainant is a resident of New York, is a woman well along in years, and has been, during her life, engaged as a sewing woman, either employed in families or working by the day. Her acquaintance with the defendant evidently arose in this way, and there were kindly relations between the parties, and it undoubtedly results from these relations that the money was intrusted to the defendant. The complainant’s testimony tends to show that defendant Josephine wrote to her sister, requesting that this money be sent to Wyandotte, to her. The complainant’s own testimony is very indefinite as to what the arrangement was, although she testifies, in answer to a question, “Didn’t you hear from her that she was building a home ? ” as follows:

“She wrote for the money—to know if I would not lend her the money—to build a home, and I trusted her with the money. At least, she didn’t write to me. She wrote to her sister. * * *

Q. Well, at the time the money was sent on, was it understood that she was going to build a home for herself ?

“A. Yes, sir.

Q. And she was wanting to borrow this money to put in her home?

“A. Yes, sir.

“ <2- She was to allow you 5 per cent, on it?

“A. Yes, sir.”

There are other portions of her testimony which show that she trusted to' the honor of defendant, and which are, perhaps, open to the construction that she did not intend the advance as a loan. But there was introduced in evidence a letter sent complainant by the defendant Josephine, without date, but which is stated in the record to have been probably written in February, 1892, which reads as follows:

“ This morning’s mail brought us word that you were willing to lend us $2,500 at 5 per cent., and George and I thank you a thousand times. * * * 'Write to me soon, and let me know when we can have the money, as we want to secure lots.”

The money was sent forward after this, and invested in a home, taken in the name of defendant George Henry Dawson. The testimony tends strongly to show that defendants have unreasonably refused to make payment of complainant’s claim or to secure it. These facts are not inconsistent with an intention on the part of complainant in the outset to extend credit; and, while the case is a hard one in some of its aspects, we are not able to say on the whole record that the alleged trust relation is established as to the $2,500 in controversy. The circuit judge, who heard the testimony in open court, reached the conclusion that the advance was intended as a loan, and in this opinion we concur.

The decree dismissing the bill without prejudice will be affirmed.

The other Justices concurred.


author: Grant, J.

text:
    STAVER & ABBOTT MANUFACTURING CO. v. BLAKE.
    1. Partnership Associations—Irregularity in Organization— Individual Liability op Members.
    One who enters into a contract with an association organized under 1 How. Stat. chap. 79, relative to partnership associations, limited, relying entirely on an associate liability, does not acquire the right to maintain an action of assumpsit thereon against the individual stockholders by the discovery of some irregularity or defect in the original organization or subsequent management of the association; especially if the persons whose liability is sought to be enforced were not interested in the association at its organization, and were not aware of any irregularities.
    2. Same—Associate Name—Omission op Word “Limited”— Damages.
    The omission in a single instance of the word “limited” in the use of the associate name does not give a right of action under section 3 of the act authorizing the formation of such associations, xu'oviding that such omission shall render each member liable for any indebtedness, damage, or liability arising therefrom, unless some indebtedness, damage, or liability is shown to have resulted in consequence of the omission in the particular instance.
    Error to Kent; Grove, J.
    Submitted April 28, 1896.
    Reargued October 6, 1896.
    Decided December 24, 1896.

      Assumpsit by tbe Staver & Abbott Manufacturing Company against Katherine A. Blake and others, stockholders in the Grand Rapids Storage & Transfer Company, Limited, for goods sold and delivered to such association. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Wylie & Clapperton (Bundy & Travis, of counsel), Vernon H. Smith and FitzGerald & Barry, amici curice, for appellant.

      Charles B. Blair (Fletcher & Wanty, of counsel), Otto Kirchner, amicus curice, for appellees.
   Grant, J.

The defendants are the members and owners of the stock of the Grand Rapids Storage & Transfer Company, Limited, an association organized May 13, 1890, under chapter 79, 1 How. Stat. The plaintiff is a manufacturing corporation of Chicago, 111. It sues for merchandise alleged to have been sold and delivered to the defendants. The declaration is upon the common counts. The bill of particulars is for merchandise sold, for which notes were given, “executed by the name of Grand Rapids Storage & Transfer Company, Limited,” dated January, May, and July, 1895. No claim is made that these defendants made individual promises, upon the faith of which these goods were sold and delivered, or that they had ever expressly formed a partnership, or that they had ever held themselves out to plaintiff as copartners. The sole basis for the right of recovery against them is the failure of the original organizers to comply with the statute in organizing, and noncompliance with the statute in carrying on the business after it was organized. These defects are stated by the learned counsel to be as follows:

(1) The articles did not state when and how $7,000 was to be paid.

(2) They falsely stated that $13,000 in cash had been paid in, when, as a matter of fact, property instead of money had been paid in, without any schedule containing the names of the parties contributing, with a description and valuation of the property contributed.

(3) No yearly or other meetings of the members of the association were held for five years.

(4) No managers of the association were elected for upwards of five years.

(5) No subscription book was kept, as required by the statute.

(6) The statute was not observed in the matter of contracting debts.

(7) The statute was not observed in using the word “ Limited” in connection with the associate name.

The defendants contend:

- (l) That the company was properly organized.

(2) That the plaintiff was estopped to deny that the association was legally organized, and to assert partnership relations, because it dealt exclusively with the association, and not with its members as a partnership.

(3) That partnership associations limited are corporations.

(4) That the express penalties imposed by the statute for its violation exclude all others.

(5) That these defendants are subsequent stockholders, are innocent purchasers, and therefore not liable for irregularities in the organization of the association, or its management.

The Original Organization.

There is no evidence of any dishonesty or bad faith in the formation of this association. It was organized under the advice of eminent counsel, who drew the articles. On March 29, 1890, eight citizens of Grand Rapids signed an agreement to form an association to be known as the Grand Rapids Storage & Transfer Company, Limited. This agreement specified the amount each was to contribute. $12,800 was thus contributed, and, when the articles were formed, this was so stated therein. This money was invested in the purchase of property and the erection of a building for the business of the association. The capital stock was fixed at $20,000. $7,200 remained unpaid, and the articles did not specify when or how it should be paid. Technically, the $12,800 of capital was not paid in cash at the time of the execution of the articles. It was, however, paid in shortly before, and for the purpose of, forming the association, and had been expended in the purchase of property for it, and to use in its business.

Subsequent Management.

It is true that meetings were not held, and managers elected, and debts incurred, in strict compliance with the statute. The business was conducted in the name of the association, and without any fraudulent intent or acts.

The Provisions of the Law.

This act was passed in 1877, and is entitled:

“An act authorizing the formation of partnership.associations, in which the capital subscribed shall alone be responsible for the debts of the association, except under certain circumstances.”

Section 1 declares that—

“The capital shall alone be liable for the debts of such association. * * * Contributions to the capital stock may be made in real or personal estate, at a valuation to be approved by all the members subscribing to the capital of such association.”

It also requires a schedule containing the names of such contributors, and a description and valuation of the property so contributed. Section 2 provides that the members shall not be liable on any judgment, decree, or order which shall be obtained against such association, or for any debt or engagement of such company, otherwise than is provided by the act. This section further provides for proceedings in such cases, and makes the members liable for labor debts. It limits the liabilities of stockholders to the amount of their unpaid subscriptions, and requires a subscription list to be kept, which shall ■ be open to inspection by creditors and members at all reasonable times. Section 6 prohibits division of profits to diminish or impair the capital of the association, and makes any one consenting to such a division liable to any persons interested or injured thereby, “to the amount of such diminution or impairment.” Section 3 provides that—

“The omission of the word ‘Limited’ in the use of the name of the partnership association shall render each and every member of such partnership liable for any indebtedness, damage, or liability arising therefrom.”

Plaintiff’s action is based upon contract, not upon tort. It insists that tbe letter of tbe law, in the formation and conduct of the partnership association limited, has not been complied with, and that therefore the law makes the defendants either partners, or members of a joint-stock company at the common law, and therefore individually liable. None of these defendants were interested in this association at its organization. The husband of Mrs. Blake was one of the principal stockholders. She advanced to him the money which he originally paid in, and also the money with which he purchased, soon after the organization, most of the other stock. The stock was assigned to her as security. Subsequently, she discharged the liability of her husband, and took the stock, and now owns all but $200 worth, owned by the defendants Aldrich and Pantlind. None of these were aware of any irregularity in the original organization or in its subsequent management. Plaintiff had for several years dealt with this association as such. Its correspondence was carried on with it. Its contracts were made with it. It had no belief that it was making any contract with these defendants, or that they were individually liable, for the correspondence and course of business refute any such conclusion. The very name of the association implied a warning to plaintiff that it was not dealing -with the members or stockholders of this association in their individual capacity, but in their associate capacity, with their liability limited. It is presumed to know the law, and a reading of the statute would have shown it that the members of this association could only be held liable for the amount of stock subscribed. It therefore dealt with this association with full knowledge of the extent of the liability of its members. The liability fixed by statute is still open to it. If the managers or members of the association committed a fraud by which the plaintiff or any other creditor suffered damage, the law provides a remedy in tort, but not in contract. The law does not make contracts for parties. The law takes the contracts which have been made, and interprets them. The law does not permit A. to deal and make contracts with B. in one capacity, and then hold him liable in another. A partnership can only be held to exist inter sese when the parties have so agreed. When no such partnership in fact exists, but a party has held himself out as such to third persons, who have dealt with him upon the faith of that relation, the law estops him to assert the true relation in order to avoid liability. Under no other circumstances does the law hold one liable as a partner who is not in fact a partner. This court said, speaking through Justice Cooley, in Beecher v. Bush, 45 Mich. 193 (40 Am. Rep. 465):

“If parties intend no partnership, the courts should give effect to their intent, unless somebody has been deceived by their acting, or assuming to act, as partners; and any such case must stand upon its peculiar facts, and upon special equities.”

See, also, Webb v. Johnson, 95 Mich. 330. We cite no other authorities, as the rule is elementary.

These defendants have never agreed to be partners, and have never held themselves out to plaintiff or to the world as such. By the purchase of stock, they became members of a body, organized under a law which made its capital and assets alone liable for its debts. This is the legal entity—and it is immaterial what name you give it—with which plaintiff dealt, made contracts, and to which it gave credit. The statute contains not a sentence from which any individual or partnership liability can be inferred. Upon what principle of common sense, justice, or equity can it now be held that plaintiff, having trusted this entity, can recover its entire debt from one with whom it never contracted, and who never promised to pay? It is unnecessary to determine whether these associations are corporations under our Constitution, which provides that the term “corporations” “shall be construed to include all associations and joint-stock companies having any of the powers or privileges of corporations not possessed by individuals or partnerships.” Article 15, § 11. It is the established rule that 'those dealing with corporations are estopped to deny the lawful existence thereof, and cannot, therefore, hold the stockholders individually liable, unless such liability is imposed by the statute. This rule is based upon two grounds: (1) That it is against public policy to permit the existence of these corporations to be attacked collaterally in suits between them and others. It is reserved for the State alone to question their legal existence through its law department. (2) Because parties have dealt with it as a corporation, and not upon the faith of the individual liability of its stockholders. We see no reason why the doctrine of estoppel should not be applied in the one case as well as in the other. There is no difference in principle between the two. Each is a legal entity, whose sole warrant for existence is found in, and whose powers and liabilities are fixed by, statute. The doctrine of estoppel in this case need not, however, be based upon the determination of the question as to whether the Grand Rapids Storage & Transfer Company, Limited, was a corporation. If these defendants, in the absence of any statute, had associated themselves together upon the same terms as those provided by this statute, had limited their liability in the same manner and for the same amount, had furnished plaintiff with a copy of that agreement, and it had sold them goods, the law would not permit it to recover against them, either as individuals or as partners. It had dealt with them and trusted them upon the strength of their limited liability. It had agreed to look to this alone, and the law will hold it to its undertaking. This rule is founded in good morals, as well as good law. The policy of the law for partnership associations limited is to relax the common-law rule, to permit parties to limit their liability, and exempt themselves from a liability which may be ruinous. Whether the policy' is wise or unwise is a question for the legislature, and not for the courts.

The injustice in sustaining the plaintiff’s contention is manifest. The law, as construed by counsel for plaintiff, says to A., who does not wish to actively engage in business, and be held responsible for its management: “You may invest $1,000 in the stock of one of these associations; and, although the law limits your liability to , the amount of capital subscribed, still if there has been any defect, however innocently made, in the original articles of association, or in its subsequent management, you can be held liable for all the debts of the association.” Such a rule is not founded in justice, common sense, sound logic, or good morals. Even in construing the statutes for the formation of limited partnerships, no such harsh rule is always applied. Buck v. Alley, 145 N. Y. 488, 496. The law of Michigan prohibited a corporation from doing any business before filing its articles of association. A corporation was formed under this law, but, before it_had completed its organization by filing its articles, its prudential committee purchased goods. Suit was brought against this committee, who were directors, based upon the personal liability of the members. The court, in deciding the case, said:

“It seems to us entirely clear that both parties understood and meant that the contract was to be, and in fact was, with the corporation, and not with the defendants individually. The agreement thus made could not be afterwards changed by either of the parties without the consent of the other. Utley v. Donaldson, 94 U. S. 29. * * * The corporation having assumed, by entering into the contract with the plaintiff, to have the requisite power, both parties are estopped to deny it.” Whitney v. Wyman, 101 U. S. 392, 396.

See, also, American Mirror & Glass-Beveling Co. v. Bulkley, 107 Mich. 447.

WAare aware that this decision is not in harmony with the decisions of the supreme court of Pennsylvania, but in so far as those decisions adopt the rigorous rule that the members of these associations are liable as partners because of some irregularity or defect in their organization or management, and thereby read into the statute a penalty which it does not impose, but which, by a fair construction of the statute, is excluded, we cannot follow them.

Other interesting and important questions are raised and ably discussed by counsel, but, inasmuch as the entire controversy is disposed of by the above opinion, we refrain from discussing them.

In one instance, in dealing with the plaintiff, the manager of this association omitted the word “Limited.” No testimony was introduced on the part of plaintiff to show that any “indebtedness, damage, or liability” arose to it in consequence of this single act, and therefore no right of action from this cause was shown to exist.

The judgment is affirmed.

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