author: Long, C. J.

text:
    BOYNTON v. ROE.
    1. Corporations — Assignments for Benefit of Creditors.
    An insolvent corporation has the right, unless prohibited by its charter or by statute, to make a general assignment of its property for the benefit of its creditors.
    2. Same — Authority of Directors.
    The directors of the corporation may make the assignment in such case without the assent of the stockholders.
    3. Same — Validity of Assignment — Presumption.
    An assignment by a corporation for the benefit of its creditors, duly executed and filed, is prima faoie valid, and the burden of proving its invalidity rests upon him who asserts the same.
    4. Same — Issue—Insufficient Evidence.
    The testimony of one of the directors of an insolvent corporation that he was not notified, as he knew of, of a meeting of the directors at which an assignment for the benefit of creditors was made, but that he was at one meeting, is insufficient to raise the question as to whether it was necessary to the validity of the assignment that all the directors should be present at the meeting at which it was executed.
    5. Same — Right of Assignee to Sue.
    The assignee of a corporation for the benefit of creditors may recover from a stockholder for goods wrongfully converted prior to the assignment, since under section 8739, 3 How. Stat., the assignee takes by the assignment all non-exempt property of the assignor, and all its rights, legal or equitable, and section 8741 provides that the assignment shall confer the right to recover all property, or rights or equities in property» which might he reached by any of the assignor’s creditors.
    6. Same — Transfer of Assets — Division of Surplus — Waiver.
    A stockholder in a corporation, who took in a new corporation, to which the assets of the former were transferred, stock equal in amount, without insisting upon a claim, which he advanced, but to which the other stockholders of the new corporation refused to accede, that the surplus of the old corporation should not be carried over to the new, but should be divided among the stockholders, has no valid claim against the new corporation, on account of such surplus, which will justify him in converting corporate assets to his own use after the new corporation has become insolvent.
    7. Same — Trover—Custom Among Stockholders — Evidenoe.
    In trover by the assignee of a corporation for the benefit of creditors against a stockholder for corporate property of the value of $5,000, converted by defendant to Iris own use after the corporation had become insolvent, one of the stockholders testified that he had a credit upon the books for loans to the corporation, in settlement of which he had taken out moneys at different times, and another stockholder testified that he had taken out small amounts upon various occasions, never to exceed §500, whio-n were properly charged to him, but that these occasions were nearly all prior to the time that the corporation became financially embarrassed. Held, that the evidence was insufficient to justify a submission to the jury of the question whether there was a custom among the stockholders which made it lawful for defendant to take the property.
    Error to Wayne; "Donovan, J.
    Submitted June 11, 1897.
    Decided September 23, 1897.
    Trover by Herbert E. Boynton, assignee of F. G. Smith Sons & Co., against Charles Roe, Jr. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Wells, Angelí, Boynton & McMillan, for appellant.

      Atkinson & Atkinson, for appellee.
   Long, C. J.

In 1880 the corporation of M. S. Smith & Co. was organized with a capital stock of $75,000, divided into 3,000 shares of $25 each. M. S. Smith subscribed for 200 shares. The balance was divided among Frank G. Smith, E. J. Smith, John S. Wood, and defendant, Roe. Roe subscribed for 360 shares, giving his note to M. S. Smith for $9,000, and left his stock with Mr. Smith as collateral to the note. On this note, from time to time, he applied the dividends to which his stock was entitled, until he had paid $5,000, and had received from Mr. Smith certificates for 200 shares of the stock. Roe did not pay the balance of the note, and never received the remaining shares. He testified in the present case that he had a distinct recollection that the note was returned, and that he considered his obligation on it canceled. The corporation- continued in business until February 11, 1889. At this time the stock interest of E. J. Smith and Mr. Wood had passed into the hands of F. G. Smith or M. S. Smith, and these two, with the defendant,.were the only stockholders. Upon this day, a new corporation, called F. G. Smith Sons & Co., composed of Frank G. Smith and his sons, Frank G. Smith, Jr., G. L. Smith, and Martin S. Smith, Jr., and the defendant, Roe, nephew by marriage of F. G. Smith, was formed. The transfer from the old corporation to the new was made as follows: A resolution was passed by the old corporation that the assets and property of the corporation, of every kind and nature, be transferred to the new corporation, upon such terms and conditions as should be agreed upon, and the president was authorized to execute the necessary papers for the transfer. On the same day, a meeting of the stockholders of the new corporation was had. They subscribed all of the stock, and F. G. Smith, Jr., was authorized by resolution to enter into an agreement with the old corporation for the purchase of the property. The agreement was entered into and reported back to the stockholders on the same day, as follows:

“I respectfully report that I have entered into an agreement with M. S. Smith & Co. for the purchase of its property and assets, of every kind and nature, for the sum of $75,000, and to assume and pay all outside liabilities of said M. S. Smith & Go.”

This purchase was confirmed by resolution of the stockholders. After the adoption of the resolution, the new corporation took over all the property and assets of the old corporation, and continued business at the same store. F. G. Smith was made president, and the defendant secretary, of the new corporation, as he had been of the old. The capital stock of this corporation was $75,000, the same as the old. The defendant became a subscriber for 200 shares. M. S. Smith no longer held any stock. The three sons of Frank G. Smith took the stock formerly held by M. S. Smith, and F. G. Smith still held the controlling interest in the new corporation. It appears that the business of the new corporation did not continue profitable, and in the month of November, 1893, it executed and delivered to Robert R. Howard, as trustee, a chattel mortgage covering all its property and assets, to secure certain creditors in an amount of upwards of $70,000. A large number of creditors, representing a large amount of indebtedness, were not secured by this mortgage. The business was continued by the corporation after this mortgage was given, until the 17th day of March following, when it made an assignment. It was shown by the testimony of Mr. Howard that, as trustee under the mortgage, he took possession of the property on March 17th. The mortgage was foreclosed in chancery in that month, and on the foreclosure more than enough was realized by the trustee to pay the indebtedness covered by the mortgage. The surplus was taken by Boynton as assignee. Since that time one dividend has been paid to creditors, and the assignee has in his hands some $5,000 or $6,000, but not enough to pay the unsecured creditors in full; and it is alleged that, if the amount which is now claimed against the defendant were added, it would not be enough to pay the unsecured creditors in full.

The claim in the present case against the defendant is in trover, and was instituted to recover the value of certain watches, diamonds, ■ and jewelry of the retail price of $5,625, taken by him from the plaintiff’s assignor, as it is claimed, on the 9th day of February, 1894, about noon,while Mr. F. G. Smith and F. G. Smith, Jr., were away from the store; that the defendant took them out of the case, made a slip for them, directing that they be charged to his account, and left the slip on the bookkeeper’s desk; that, soon after he had taken them, it was ascertained by the two Smiths, and the officers of the corporation were called together, and a resolution passed disaffirming the action of the defendant in taking the goods, directing that a demand be made for their return, and authorizing the president of the corporation to take proceedings for their recovery. A demand was thereafter made upon the defendant, and he refused to return the goods. This suit was thereafter commenced.

On the trial in the court below, the defense set up was that, at .the time the assets and property of the old corporation were transferred to the new, the inventory of the old showed a surplus of between $35,000 and $40,000; that the defendant stated at the time of the transfer, both to F. G. Smith and F. G. Smith, Jr., that this surplus should be divided, and not transferred to the new corporation ; that he considered he had helped earn the surplus, and did not think it right that Mr. Smith’s sons should come into the concern on the same basis he stood, after service to the company of a great many years. He testitified that both F. G. Smith and F. G. Smith, Jr., refused to accede to his views at the time the transfer was made, and that he took the goods in controversy in this suit for the purpose of evening up that claim for surplus. He also claimed that F. G. Smith and F. G. Smith, Jr., had taken goods from the store, and had them charged to their accounts. At the close of the testimony in the case, plaintiff’s counsel asked the court to direct the jury that their verdict must be for the plaintiff. This was refused. The jury returned a verdict in favor of the defendant.

The plaintiff’s contention is that the court was in error in refusing to direct a verdict in his favor. In answer to this, the defendant contends:

1. That the pretended assignment is a nullity, for the reason that the company’s by-laws provide for five directors, and that on March 17th, when Mr. Boynton claims to have been made assignee, there were only three directors, F. G. Smith, F. G. Smith, Jr., and defendant; that no meeting was called, and no notice given to defendant, but that the two directors F. G. Smith and F. G. Smith, Jr., met, and attempted to make an assignment for the company; that this action was a nullity, and did not transfer the property of the company to the plaintiff.
2. That the directors of a stock company like this cannot make an assignment of the company property.

The assignment was in form an ordinary common-law assignment, dated March 17, 1894, and was executed by F. G. Smith Sons & Co., through its president and secretary, and had attached thereto the corporate seal. It was duly witnessed. The assignee’s acceptance was duly indorsed thereon March 19th, and filed in the office of the county clerk on March 22d. It covered all the property and assets of F. G. Smith Sons & Co. It appears that there was a meeting of the directors held March 17, 1894, at which time the assignment was made. It is contended by counsel for the defendant that this assignment is void, for the reason that it was authorized to be made at a meeting when only two of the five directors were present. In this contention we think counsel in error. The record shows that prior to that time the directors were F. G. Smith, F. G. Smith, Jr., and Charles Roe, the other two having resigned, because they had transferred their stock.. Thereafter Mr. H. F. Baker was duly elected a director. Whether Mr. Roe was present or not at the time when the assignment was made is not stated in the record. All that is contained in the record on that subject is from the testimony of the defendant. He testified: “I was not notified, as I know of, of a meeting of the directors at which the assignment of the business of that company was to be made. I was at one meeting.” The record shows that F. G. Smith, F. G. Smith, Jr., and H. F. Baker were present, and they constituted a majority of the directors.

It is well settled in this State that an insolvent corporation has the right to make a general assignment of its property for the benefit of its creditors, unless prohibited by its charter or a statute of the State. Covert v. Rogers, 38 Mich. 363 (31 Am. Rep. 319); Richardson v. Rogers, 45 Mich. 591. The directors may make such assignment for the benefit of creditors without the assent of the stockholders. Hutchinson v. Green, 91 Mo. 367; De Camp v. Alward, 52 Ind. 473. Under our statute, the business affairs of the corporation were under the control of the board of directors. The board of directors had the power to make the assignment. Whether it was necessary that all the directors should be present at this meeting in order to make a valid assignment, it is not important to inquire. If such claim was made by the defendant on the trial below, it does not appear in this record. He says he was present at one meeting. Whether it was the meeting when the assignment was finally executed, or at a meeting when it was agreed by the board to take this action, does not appear. The assignment was offered and received in evidence without objection on the trial. It was shown to be duly executed, had upon it the corporate seal, and the trust was accepted in writing by the assignee. It was filed in the office of the county clerk, and the assignee has been active in carrying out the trust since that time. In some States it is held that a majority of the directors may make an assignment of the corporate property for the benefit of creditors. Buell v. Buckingham, 16 Iowa, 284 (85 Am. Dec. 516), and cases there cited; Chase v. Tuttle, 55 Conn. 455 (3 Am. St. Rep. 64). We need not pass upon that question here. The assignment was prima facie valid, and the burden was upon the defendant to prove its invalidity. As was said by Shaw, C. J., in Sargent v. Webster, 13 Metc. (Mass.) 504 (46 Am. Dec. 743):

“Another objection is that it does not appear that notice of the meeting was given to all the directors. But the contrary does not appear; and it would be hazardous to decide that every vote passed by an aggregate body is void if it do not appear by the record that all were notified. We believe it is not usual in corporate records to state how the members were notified. The presumption omnia rite acta covers multitudes of defects in such cases, and throws the burden upon those who would deny the regularity of a meeting for want of due notice to establish it by proof.”

In Chase v. Tuttle, supra, it was held that the assignment was not invalidated for want of actual notice to two of the directors, who were absent from the State, a quorum of the board being actually present, and authorizing the act.' We think there was no showing by the defendant in the present case which would warrant us in holding the assignment invalid.

In this proceeding we must therefore treat the assignment as having been lawfully made, conveying all the rights and properties of the corporation to Mr. Boynton, assignee. The assignee therefore had the right to bring suit for the wrongful taking of the property, even where the property was taken before the assignment was made. The right of action for a wrong is assignable, and passes with the rest of the assignor’s rights to the assignee for the benefit of creditors. Section 8739, 3 How. Stat., provides that “such assignment shall convey to the assignee all property of the assignor not exempt from execution, and all rights, legal or equitable, of said assignor;” and section 8741 further provides: “Every such assignment shall confer upon such assignee the right to recover all property, or right or equities in property, which might be reached or recovered by any of the creditors of such assignor.” It has been repeatedly held by this court that a right of action for the conversion of property is assignable. Final v. Backus, 18 Mich. 218; Brady v. Whitney, 24 Mich. 154; Grant v. Smith, 26 Mich. 201; Smith v. Thompson, 94 Mich. 381. And, under this statute, a corporation may make an assignment, the same as a private individual.

But it is contended that the defendant had a valid claim against the assignor, F. G. Smith Sons & Co., when he took the goods. It appears that, when M. S. Smith & Co. sold out and transferred its rights to the new corporation, defendant had in it 200 shares which were fully paid up, and no more. The certificate for 360 shares of the old corporation which had been issued to him was in the hands of Mr. Smith. Defendant paid $5,000, and had received from Mr. Smith 200 shares. He does not claim to have paid for the other shares. The old corporation was organized with a capital stock of $75,000, or 3,000 shares at $25 each. Defendant’s interest in that corporation was simply the 200 shares. When the new corporation was organized, it was capitalized at the same amount, defendant’s interest in it being 200 shares. The other 160 shares which were held by M. S. Smith were turned over to the sons of F. G. Smith. While defendant claims that he had some talk with F. G. Smith about this, and made some claim to a surplus which he alleges was carried over into the new corporation, yet it is apparent, that he acquiesced in the formation of the new corporation, and took his interest in it at 200 shares. No member of the firm took any part of this surplus. It is conceded that, after the new corporation was formed, the goods were marked down; and, in the course of time, it is apparent that whatever surplus there might have been soon disappeared, and the corporation found itself involved in debts to more than $70,000. Having waived his right, if he had any, to insist upon payment in cash for his interest in the old corporation, having received in the new the exact amount of what he had in the old, it cannot be said that, when the concern was mortgaged and had become insolvent, he had a valid claim against the .new corporation, because in 1889 his stock might, upon liquidation, have entitled him to a claim in the then existing surplus. We think there was nothing to submit to the jury upon this question under the evidence. Neither had he a right to take out of the concern, in the condition financially that the corporation was in, its property, and convert it to his own use. The assets of a corporation are a trust fund for creditors. This was not a partnership, but a corporation, and a stockholder or officer of a corporation has no right to take its property for his own purposes.

But it is said by the defendant that other members of the corporation had taken some of the property, and had it charged to themselves. Explanation is given by other members why goods were taken by them. E. G. Smith took out various amounts in money at different times, hut he testifies that he had a credit upon the books of the concern of $5,000, which he could take in money or goods; that this credit was for loans to the company. P. G. Smith, Jr., testified that he took only small amounts, and never to exceed $500, and those amounts were charged to him on the books of the company; that these transactions were before the assignment was made, and most of them before the chattel mortgage was given to Howard. There was nothing shown in the case which warranted the court in submitting to the jury the question whether there was such a custom among the members of the corporation as would make it lawful for the defendant to take out the goods in question for his own use.

We think that, under the facts shown in this case, and under the undisputed evidence, the court should have directed a verdict in favor of the plaintiff.

The judgment must be reversed, and a new trial granted.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    WILLET v. MICHIGAN CENTRAL RAILROAD CO.
    1. Declaration for Personal Injuries — Allegation of Due Care — Amendments.
    In an action against a railroad company for injuries received at a crossing, it was error to refuse to permit an amendment to the declaration, which alleged that plaintiff, as she approached the crossing, drove “at a very slow rate of speed,” and looked and listened for trains, so as to meet the proof that she stopped her horse, stood up in the carriage, and looked and listened before attempting to cross the track.
    2. Railroad Crossings — Accident to Traveler on Highway— Partially Obstructed View — Contributory Negligence.
    Plaintiff, accompanied by another woman, was driving upon the highway in a populous portion of a city. When they were 15 or 20 rods from a railroad crossing, they looked for a train, and neither saw nor heard one. They drove slowly towards the track, continuing to look and listen as they approached. Just before driving upon the track, they stopped the horse, stood up in the buggy, and looked and listened for trains. The view was obstructed by freight cars standing upon a side track, but same of the cars were low enough so that a small portion of the smokestack of an engine approaching on the main track would be visible from the place where plaintiff stopped her horse. Plaintiff drove upon the track, was struck by a train, and injured. Held, that it could not be said, as a matter of law, that she was negligent in failing to see the train.
    3. Same — Negligence of Company — Question for Jury.
    The question of the negligence of the railroad company in failing to provide some method for giving notice of approaching trains, in view of the presence of its freight cars upon the siding, should have been submitted to the jury.
    Error to Shiawassee; Smith, J.
    Submitted June 11, 1897.
    Decided September 23 1897

      Case by Agnes Willet against the Michigan Central Railroad Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      F. F. Bumps and 8. S. Miner, for appellant.

      M. V. & B. A. Montgomery, for appellee.
   Moore, J.

The plaintiff sued defendant to recover for injuries received by her at the Chipman-street crossing in Owosso, Mich. The circuit judge directed a verdict in favor of the defendant. Plaintiff appeals.

The declaration averred, among other things, as follows:

“And plaintiff avers that on the 18th day of April, A. D. 1895, in the city of Owosso, aforesaid, said plaintiff, in company with Mary Otto, with a gentle horse and single buggy, was riding along in a careful and prudent manner, coming from the south, and going north, on said public highway, intending to pass over said railroad track, going to the business part of the city of Owosso; that when thus approaching said track in a careful and prudent manner, looking and listening for a train on said railroad' tracks, and going at a very slow rate of speed, so as to avoid any danger, and without any negligence on her part, or upon the part of her companion, said Mary Otto, and when nearly upon said railroad tracks, the defendant’s said engine, coaches, and cars, propelled by steam, aforesaid, approached said public highway, coming from the southwest, and going northeast, on said railroad track at an unusual and very great rate of speed, to wit, 25 miles per hour, and came upon and over said crossing and public highway without having given, or caused to be given, any warning of approach of said engine, coaches, and cars, and without any flagman or other servant there stationed to warn people walking, passing, or riding along said public highway over said crossing of the approach of said engine, coaches, and cars, and without blowing the whistle on said locomotive engine, as required by law, and which was then and there placed upon said locomotive engine, which was then and there propelling the said coaches and cars, and without having any careful and prudent method or means of notifying the said plaintiff or the public of the approach of said engine, coaches, and cars, and having a large number of box cars and flat cars loaded with lumber, to wit, 30 cars, upon the said side track, and upon said highway, as aforesaid, and rising above said highway, to wit, six feet, thus obstructing the view and hearing of the public and of said plaintiff and of said Mary Otto, so that they, or either of them, could neither see nor hear an approaching train from the southwest upon said railroad.
“And the said defendant then and there, by its servants in charge of this said engine, cars, and coaches, so carelessly, negligently, and improperly managed, moved, and conducted the same that by and through the carelessness, negligence, and improper conduct of the said defendant, by its servants in their behalf, said engine of the said defendant, as said horse hitched to a single buggy, in which were riding the said plaintiff and said Mary Otto, arrived at and upon said railroad track, then and there ran into and struck with great force and violence upon and against the buggy in which said plaintiff was riding, and which was passing over said railroad, thereby throwing said plaintiff and said Mary Otto, who were in said buggy, violently to the earth, greatly injuring said plaintiff in and about her person, in her nervous system, and in her mind, in this, to wit: * * '* And the said Agnes Willet, at the time of the said accident, and before, did not know that the said train from the southwest was approaching said public highway on said railroad, and had no reason to anticipate the same, and did not and could not see nor hear the same, on account of said defendant not giving proper signals, and running its train at so rapid a rate of speed, contrary to the ordinance of the city of Owosso, and on account of said defendant leaving box cars and flat cars loaded high with lumber on its said side track and on said public highway, in the manner as aforesaid, and on account of said highway immediately south of said railroad not having been restored by said defendant to its former state, as near as might be, as is required by the statute of the State of Michigan. And said plaintiff avers she herself, and her companion, said Mary Otto, were entirely free from any negligence in respect to said accident and to said injuries sustained.’’

Upon the trial testimony was offered to show that, as plaintiff approached the railroad, and within a short distance of it, she stopped her horse, stood up in the carriage, and looked and listened before proceeding across the track, which testimony was objected to, as follows:

‘Mr. Montgomery: I object to it. I object to all the proof in this case, for the reason that no negligence has been averred in this declaration against the company. The declaration recites that these people approached the train, driving along at a slow gait. There is no hint that they did anything else than to drive at a slow gait. I object that, while it may not have been the duty of the plaintiff to aver that they stopped and listened, they have no right to aver an entirely different thing, then seek to prove that they did stop and listen.”

The testimony was received. A large number of witnesses were sworn. The testimony on the part of the plaintiff and her witnesses showed that plaintiff lived 11 miles from Owosso, and was not familiar with the Chip-man-street crossing, though she had passed over it once or twice. This crossing is in a populous portion of Owosso, upon a street that accommodates a good many travelers. The plaintiff came to Owosso in a covered carriage, having a neighbor, Mrs. Otto, with her. They took dinner with a daughter of Mrs. Otto, who lived 15 or 20 rods south of the railroad track. The testimony discloses that, before they got into the carriage, they looked for a train, and neither saw nor heard one. The horse was 9 years old, and gentle, and was driven slowly. The top of the carriage was up. The ladies continued to look and listen as they approached the crossing. At this crossing there was a main track and siding. The siding was nearest the ladies, and was filled on both sides of the street with freight cars, except an opening in the street, variously stated by the witnesses to be from 10 to 18 feet wide. This siding was several feet higher than the highway. The freight cars were cars filled with lumber, ordinary box cars, and hay and furniture cars, and were so high and continuous that a train passing on the other side could not be seen, though a small portion of the smokestack could be seen above the ordinary box cars and lumher cars, but not above the hay and furniture cars. Just before getting to the track, Mrs. Willet stopped the horse. Mrs. Otto listened, and looked through the cracks in the curtains, while Mrs. Willet stood up in the carriage, and looked both ways and listened. Seeing nothing and hearing nothing, the ladies passed on, and a moment later were struck by the locomotive, and received injuries for which Mrs. Willet sued.

There was testimony offered on the part of the plaintiff that the train was running very fast, and that no whistle was blown within 40 rods of the crossing, and no bell rung, and that the wind was blowing from the direction of the ladies towards the train. The testimony of the employés of the railroad company was that the whistle for the crossing was blown and the bell rung. The testimony of the engineer was that he gave all the signals, and was not running very rapidly. On the cross-examination, he stated that, when he first saw the horse, it was coming off the side track onto the main track, and that he could not see into the highway off the company’s right of way because of the cars upon the side track.

Plaintiff’s counsel asked leave to amend the declaration, “to show that, before plaintiff reached the crossing, she stopped; and so it may show that, by reason of defendant’s placing freight cars on the side track, and that by reason of running their train at so high a rate of speed, to wit, 25 miles an hour, and by reason of their not placing any flagman or watchman at the crossing, plaintiff was injured.”

The record does not show that any objection was made to this amendment, except by the trial judge, who said: “ I do not think an amendment in that respect would help the matter,” and declined to allow the amendment. He then directed a verdict in favor of the defendant, saying: “ I base my instructions in relation to this case, as to what your verdict shall be, upon the condition of the pleadings in the case.”

We are not prepared to say that the declaration, as it had not been demurred to, was not sufficient. Nor are we prepared to say that there was a variance between the declaration and the proofs that would prove fatal. To avoid any questions of this character, however, the plaintiff’s counsel sought to amend the declaration, not by stating a new or different cause of action, but by stating it more fully. We think the amendment should have been allowed. 2 How. Stat. § 7631; Brassel v. Railway Co., 101 Mich. 5; Edwards v. Village of Three Rivers, 102 Mich. 153; Ross v. Township of Ionia, 104 Mich. 320.

We think, too, that the question should have been submitted to the jury whether or not the defendant was guilty of negligence in not providing some method for giving notice of the approach of the train at this crossing, in a populous portion of the city, when it was temporarily, for purposes of its own, so obstructed by the company that the view of persons having the right to use the highway was so cut off that it was difficult to determine whether a train was approaching or not. Guggenheim v. Railway Co., 66 Mich. 150; Freeman v. Railway Co., 74 Mich. 86; Grand Trunk R. Co. v. Ives, 144 U. S. 408.

The question whether plaintiff was guilty of contributory negligence, under the testimony in this case, was a question of fact, to be submitted to the jury, and not a question of law, to be determined by the court. Teipel v. Hilsendegen, 44 Mich. 461; Guggenheim v. Railway Co., 66 Mich. 150; Mynning v. Railroad Co., 59 Mich. 257; Underhill v. Railway Co., 81 Mich. 43.

Judgment is reversed, and new trial ordered.

Long, C. J., and Montgomery, J., concurred with Moore, J. Grant, J., concurred in the result. Hooker, J., did not sit.


author: Moore, J. Long, C. J.

text:
    ST. CLAIR TUNNEL CO. v. ST. CLAIR CIRCUIT JUDGE.
    Mandamus — Allowance op Amendments — Review.
    The action of the circuit judge in permitting a plaintiff to amend his declaration, against defendant’s objection that the amendment sets up a new and different cause of action, is not reviewable on mandamus. Long, C. J., and Montgomery, J., dissenting.

      Mandamus by the St. Clair Tunnel Company to compel Samuel W. Vance, circuit judge of St. Clair county, to set aside an order permitting an amendment to a declaration.
    Submitted June 15, 1897.
    Writ denied September 23, 1897.

      Q-eer & Williams, for relator.

      Chadwick & Mcllwain, for respondent.
   Moore, J.

This is an application for a mandamus to compel the circuit judge to vacate an order permitting an amendment to be made to the declaration in the case of David Turner against the St. Clair Tunnel Company.

The first question to be considered is whether, inasmuch as the writ of mandamus is a discretionary one, we will review the action in this proceeding. In Michigan Mut. Fire Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270, it is stated:

“ It is a general rule that the writ will not lie where the law has provided another remedy. It is said a writ of mandamus issues because there is no other adequate remedy, and justice and good government require a redress of the wrong. A court will not be required by this writ to take any action when another remedy is provided. It will not take the place of an appeal or writ of error. Merrill, Mand. §§ 201, 209. To this rule an exception is made if the slowness of ordinary legal forms is likely to produce such immediate injury or mischief as ought to be prevented.”

In that case the writ was denied.

In the case of Pratt v. Montcalm Circuit Judge, 105 Mich. 502, it was said by Justice Hooker:

“I am also of the opinion that the relator is not entitled to the writ of mandamus. The question of amendment is one wholly within the discretion of the trial court. 2 How. Stat. § 7631 et seq.; Detroit, etc., R. Co. v. Forbes, 30 Mich. 165; Polhemus v. Ann Arbor Savings Bank, 27 Mich. 44; King v. Wayne Circuit Judge, 41 Mich. 727. This being conceded, the determination of the circuit judge is not subject to review, except in cases of abuse of discretion, or where it results in depriving a party of a right of action, in either of which cases it has been held to be reviewable upon error. See Pangborn v. Insurance Co., 67 Mich. 683; Browne v. Moore, 32 Mich. 254. Until recently, these questions have been raised after judgment upon error. * * * If it be said that interlocutory orders such as this may go to the entire cause of action, the answer is that, under the case of Pangborn v. Insurance Co., supra, the court may review such question upon writ ot error; and hence, under a familiar rule, mandamus cannot be resorted to, for the reason that another adequate remedy exists. Merrill, Mand. § 201, and cases cited; Welch v. Hull, 73 Mich. 47. The same may be said of questions involving abuse of discretion. They may be corrected upon writ of error, and there can seldom be occasion to interrupt the proceedings in trial courts to review interlocutory matters. It is productive of delay in the trial courts, and involves the review of a multitude of questions, a large proportion of which would be likely to be satisfactorily disposed of by the outcome of the trials. The practice is contrary to the settled precedents in England and many of the American States, and it may be, doubted if the extension of proceedings by mandamus, so earnestly advocated by some as a speedy and cheap method of accomplishing justice, is desirable after all. The experience of the distinguished jurists and advocates to whom we are indebted for the common law is to the contrary, as evinced by the rules of the common law upon the subject.”

If an , example were wanted of the delays growing out of reviewing interlocutory orders in this court, it is furnished by this case, which is now in this court for the third time, while it has been tried but once, and so much time nas elapsed that it is now said the statute of limitations has run against the cause of action stated in the amended declaration. If it was within the discretion of the circuit judge to allow the amendment to the declaration, his discretion should not be reviewed. If it was not within his discretion, because of want of power to make the order, or if his discretion was abused, as we have before seen, his action can be reviewed by writ of error.

The writ is denied.

Grant and Hooker, JJ., concurred with Moore, J.

Long, C. J.

As defendant has the right to proceed with the trial of the issue properly before the court, we think a writ of error is not an adequate remedy to correct an erroneous ruling under which a change in that issue has been made. Inasmuch as a majority of the court are of the opinion that the case should not be heard on mandamus, the merits will not be discussed.

Montgomery, J., concurred with Long,,C. J.


author: Montgomery, J.

text:
    PETHERICK v. GENERAL ASSEMBLY OF ORDER OF THE AMARANTH.
    1. Trial — Opening of Counsel — Defenses.
    Defendant may avail himself of a defense presented by the testimony, although it was not referred to in the opening statement of his counsel.
    2. Mutual Benefit Sooieties — Certificate of Membership — Presumption of Good Standing.
    A certificate of membership in a mutual benefit society is proof of the good standing of the member at the time the certificate was issued, and such good standing will be presumed to have continued unless the contrary is made to appear.
    3. Same — Evidence to Overcome Presumption — Member’s Book of Account.
    The presumption of good standing is not overcome, in an action for death benefits, by the introduction in evidence of a book of the deceased, which contains a printed statement of quarterly dues, with spaces for the entry of the date of payment and the name of the financial secretary, showing no entry of payment as to two quarters’ dues; especially if the same book fails to credit assessments proved to have been paid.
    4. Same — Suspension for Nonpayment of Assessments and Dues — Forfeiture of Benefits.
    The constitution of a mutual benefit society provided that “each member shall pay the amount due, on the notice of the financial secretary, on or before the following 28th day of the month in which lie receives the notice. The financial secretary shall notify the president when a member has failed to pay the amount assessed in the required time, and the president shall announce the fact to the assembly, and the member shall stand suspended from the order and all benefits thereof. It shall be the duty of the subordinate secretary to notify the general secretary of such suspension, and also notify the member suspended.” The constitution of the local chapter provided that ‘ ‘ any member failing to pay his dues * * * within the first month of the quarter shall be declared in arrears, * * * and, if his dues for the quarter are not paid on or before the last meeting night of said quarter, the fact shall be announced by the financial secretary in open assembly, and, if the dues are not paid on or before the next meeting, he shall be declared by the assembly suspended from all benefits of the order.” It was further provided by the general constitution that “if a member is delinquent for one or more assessments already called to the benefit fund, or three months or more in arrears for dues, at the time of death, * * * the beneficiary * * * shall not be entitled to benefits from said fund.” Held, that the mere failure to pay assessments and dues did not, ipso facto, work a forfeiture of the benefit certificate.
    5. Same — Informal Acknowledgment of Member’s Inability to Pay — Estoppel.
    A statement by a member of a mutual benefit society to some of his fellow members, to the effect that he is unable to keep up the assessments, and will be compelled to drop the insurance, will not estop the beneficiary named in the membership certificate from asserting a claim for death benefits, where the general constitution and the constitution of the local chapter provide for formal proceedings before suspension and forfeiture can be declared.
    Error to Wayne; Frazer, J.
    Submitted June 16, 1897.
    Decided September 23, 1897.

      Assumpsit by Mary Teagan Petherick against the General Assembly of the Order of the Amaranth on a mutual benefit certificate. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Sidney T. Miller, for appellant.

      Maybury & Lucking, for appellee.
   Montgomery, J.

Action on a mutual benefit certificate. Plaintiff, the beneficiary named in the certificate, recovered. Defendant brings error. The defenses relied upon in this court are suspension for nonpayment of assessments, failure to pay dues, which, it is claimed, suspends the right to benefits ipso facto, and error in excluding evidence of statements made by deceased. It is further claimed that failure to pay assessments operated to suspend the right to benefits without any formal suspension.

An attempt was made to suspend the member for nonpayment of assessment No. 21. The jury must have found that this assessment had been paid out of a fund provided for that purpose by the members of the lodge to which deceased belonged. There was ample testimony to support this claim. It is stated in the brief of defendant’s counsel that there was a mistake made in referring to the assessment as assessment No. 21. We cannot discover that any such theory was disclosed at the trial.

It is further contended that the delinquency of the member and the failure to pay dues for more than three months operate to bar the beneficiaries of benefits. The general constitution on this subject (section 1, law 3) reads as follows:

“If a member is delinquent for one or more assessments already called to the benefit fund, or three months or more in arrears for dues, at the time of death, accident, or total disability, the beneficiary or beneficiaries shall not be entitled to benefits from said fund.”

The provisions of the constitution of the local chapter were as follows:

“Any member failing to pay his dues to this assembly within the first month of the quarter shall be declared in arrears, and shall not be entitled to vote, hold office, or receive the pass-word; and, if his dues for the quarter are not paid on or before the last meeting night of said quarter, the fact shall be announced by the financial secretary in open assembly, and, if the dues are not paid on or before the next meeting, he shall be declared by the assembly suspended from all benefits of the order.”

It is claimed by plaintiff’s counsel that no question of arrearage of dues was tried in the court below, and that no such proof was offered by defendant, and that the opening of counsel was silent on this point. It does appear that no such claim was made in the opening, but it does not follow that the defense was foreclosed if the question was subsequently presented by testimony, or if defendant’s contention made on the trial was sound. At the close of the trial, defendant’s counsel called attention to section 1, law 3, above quoted. Tbe court then said: “There is no claim here, as I understand it, that he had been in arrears three months.” The defendant’s counsel replied: “Indues? There certainly is. It is part of the business of plaintiff’s counsel to show that he was paid up in dues at the time of his death.” Previous to this there had been a request preferred to take the case from the jury, on the ground that plaintiff had not shown that deceased was in good standing at the time of his death. It is contended that the burden was on plaintiff to show that deceased was not in default as to dues at the time of his death. The question was sufficiently raised, but we think such is not the rule. The case of Siebert v. Chosen Friends, 23 Mo. App. 268, is cited to sustain the contention. In this case the question was which party was entitled to the opening and closing to the jury. The court did say that—

‘ ‘ The central question was whether, at the time of her death, Gertrude Siebert was a member in good standing. The affirmative of this issue belonged to plaintiff, and the court’s ruling [according to plaintiff’s counsel the opening and closing] was correct.”

But the same court, in Mulroy v. Knights of Honor, 28 Mo. App. 467, and again in Stewart v. Legion of Honor, 36 Mo. App. 319, held to the doctrine which obtains elsewhere, that the certificate of good standing is prima facie evidence of good standing, and a presumption arises from the issuing of such certificate that good standing continues. See Supreme Lodge Knights of Honor v. Johnson, 78 Ind. 110; Dial v. Mutual Life Association, 29 S. C. 560; Independent Order of Foresters v. Zak, 136 Ill. 185 (29 Am. St. Rep. 318); Nibl. Acc. Ins. & Ben. Soc. § 155; Bac. Ben. Soc. § 414.

The defendant offered no testimony to show nonpayment of dues. The only testimony on the subject was a book in the possession of the insured, which shows on the last page the following:

This was not supplemented by any testimony, and the most it can be said to establish is that credit was not entered on the book for the last two quarters’ dues. It is significant that the same book fails to credit assessment No. 21, which appears to have been paid. We think, in view of the issue as stated, the plaintiff was entitled to rest on the presumption of good standing, and was not put to the further proof of the subject.

We do not think the statement that a failure to pay the dues worked a forfeiture ipso facto could be sustained, in view of the provision of the constitution which provided:

“ Each member shall pay the amount due, on the notice of the financial secretary, on or before the following 28th day of the month in which he receives the notice. The financial secretary shall notify the president when a member has failed to pay the amount assessed in the required time, and the president shall announce the fact to the assembly, and the member shall stand suspended from the order and all benefits thereof. It shall be the duty of the subordinate secretary to notify the general secretary of such suspension, and also notify the member suspended.”

Error is also assigned on the ruling excluding a statement made by deceased to members of the order, to the effect that he was unable to keep up the assessments, and would be compelled to drop the insurance. We need not consider the validity of the grounds upon which this testimony was excluded, as in our opinion such a statement, if proved to have been made, would not have barred either the deceased or the beneficiaries named in the certificate. None of the elements of estoppel exist.

Judgment will stand affirmed.

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


author: Grant, J. Moore, J.

text:
    VAN BUSKIRK v. HOY.
    Decedent’s Note — Consideration—Evidence.
    The presumption of consideration for decedent’s note arising from the recital therein that it was for value received, supplemented by testimony that she was the payee’s mother, and that, a number of years before the note was given, personal property was furnished her and her husband by him, under such circumstances that she recognized her obligation1 to make some compensation therefor, is sufficient evidence that it was given for a valuable consideration to warrant its submission to the jury. Grant, J., dissenting.
    Error to Montcalm; Daboll, J., presiding.
    Submitted June 16, 1Q97.
    Decided September 23, 1897.
    Charles E. Van Buskirk presented a claim against the estate of Sally Ann Van Buskirk, deceased, for an amount due on a promissory note. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for claimant, Robert "W. Hoy, the administrator, brings error.
    Affirmed.

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

      McGarry & Nichols and F. A. Miller, for appellee.
   Grant, J.

Claimant is the son of the deceased, Sally Ann Van Buskirk, who died in August, 1894. The claim is evidenced by the following paper:

“$250. Conesus, N. Y., March 1, 1884.
“At my death, for value received, I promise to pay to Charles E. Van Buskirk $250, with interest.
her
“Sally Ann X Van Buskirk.
mark
“Floyd McNinch, Witness to Mark.”

The claim was disallowed by the commissioners. Claimant appealed to the circuit court, where the case was tried before a jury, who rendered a verdict for the claimant for $442.50. Many errors are assigned. The principal objections made to the right of recovery are (1) that no consideration passed to the deceased for the note; (2) that the note was made on Sunday, and is therefore void; (3) that the date of the note was altered, and that this alteration is unexplained.

The paper was executed at the house of the witness McNinch, who married a daughter of the deceased. She had gone from Michigan to New York on a visit, and the paper was executed at McNinch’s house within half an hour of her arrival there. It is conceded that no consideration passed when the note was given. If any consideration was given, it was in 1875 or 1876, at which time Mrs. Van Buskirk was living with her husband, who died in 1879. McNinch testified that Charles was present when the note was executed, and that there was talk about the consideration, and that it was goods and chattels. The question was asked him :

“What were the goods and chattels which it was talked he had let her have ?
“Answer: Well, I couldn’t say that he let her have them. They were talking there that he had left some goods and chattels on the farm there when he went away from home, and she wished to compensate him for them.”

He further testified that his impression was that there were about 10 tons of hay and some wheat and some oats; “ somewhere in the neighborhood of 60 bushels of wheat and a couple hundred bushels of oats. They talked about some money that he had let her have. I think they said $50.” There is testimony also tending to show that Charles was told by his father in 1875 that, if he would work his father’s place, he might have all he could make away from home, and that he worked the place of an uncle in that or the following year; and there is some testimony, though not of a very convincing nature, that he took some of the things he raised to his father’s house, and left them there. Isaac Van Buskirk, a witness for and a cousin of the claimant, testified:

“Q. Did you know the fact of his^ [Charles] having the grain and stuff ?
“A. Yes, sir.
“Q. Do you know what he did with it?
“A. My best recollection is that it was left on the farm to be used there.”

There is no evidence that either his father or mother promised to pay for them, or that she received them or the benefit from them. Mrs. Van Buskirk was then living with her husband, had no business of her owh, and was only engaged in the duties and cares of her household. If any one received these goods and chattels from claimant, it was his father. If any legal obligation to pay for them rested upon any one, it rested upon his father. Any parol promise made by his mother would be void under the statute of frauds, and any promise on her part, whether written or verbal, would be void because she was a married woman, and the transaction had no reference td her separate estate. She was under no moral or legal obligation to pay. If, therefore, she had promised to pay for them, the promise, being absolutely void, could not, after her husband’s death, serve as a valid consideration for the note. Hall v. Soule, 11 Mich. 496; Scott v. Bush, 26 Mich. 420.

The statement that there was talk about some money that he had let her have is too indefinite to base a right of recovery upon. It does not amount to an admission upon her part that she had received any money from him. It does not pretend to give a single word of the conversation. In 1882, Charles gave his mother a note for $100, which he admits he then borrowed of her, and afterwards paid $50 upon it. This is inconsistent with the theory that she owed him.

Claimant’s counsel insist that there is a scintilla of evidence, which is enough to justify the verdict of the jury. A scintilla of evidence is not enough to sustain a verdict, especially against the estates of deceased persons. I think the record jústifies the sole conclusion that no consideration passed from claimant to the deceased for this note, and that the court should have directed a verdict for the estate. It is unnecessary to discuss the other questions.

Judgment should be reversed, and a new trial ordered..

Moore, J.

I agree with Justice Grant that claims against estates of deceased persons should be scrutinized with much care, but I cannot agree with him that there was not sufficient proof of the validity of plaintiff’s claim to warrant its submission to a jury. The deceased had acknowledged the validity of the claim by a written instrument, which recited that it was given for value received. The deceased was not here to explain what the consideration was that led her to say in the note that it was given for value received. The claimant was prevented by the statute from testifying, so that he had to make such proof as he could. The very fact that deceased acknowledged that the note signed by her was for value received raised a presumption that it was given for a sufficient consideration. This presumption was supplemented by testimony that the maker of the note was the mother of claimant; that, a number of years before the note was given, personal property was furnished to Mrs. Van Bus-kirk and her husband by the plaintiff, under such circumstances that she recognized her obligation to make some compensation therefor. It may be, as Justice Grant says in his opinion, that there was no legal obligation to pay for this property, but I cannot agree with him in saying there was no moral obligation to compensate for the property furnished. Indeed, I do not think it can be said, as a matter of law, that there was no legal obligation to pay for the articles furnished, for the record is very meager as to the circumstances surrounding the transaction. If the claim depended entirely upon the proof, as shown by the record, that the property was furnished under such circumstances as to create a liability, it might weir be said that the case made by the plaintiff must fail for want of proof. But that is not this case. Here, as I have before said, we have not got the testimony of the principals to the transaction, for the reason that one is dead, and the other incompetent to testify; but we have the written admission of the deceased that the note was given for value received. This being so, it cannot be said the case of the plaintiff failed for want of proof. I think the case was properly submitted to the jury by the learned trial judge, and that the judgment should be affirmed.

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


text:
    SCHLOSS v. ESTEY.
    1. Fraudulent Conveyances — Sale of Goods — Excess of Value Over Purchase Price.
    The fact that a stock of goods was sold by an insolvent debtor for an amount appreciably less than its value does not conclusively establish the fraudulent character of the transaction as to one from whom a part of the goods were fraudulently purchased by the debtor.
    3. Sale — Fraud—Bona Fide Transferee.
    Goods fraudulently purchased cannot be recovered by the vendor from one who has bought them in good faith and for value from the vendee.
    3. Trial — Order of Proof.
    Where evidence offered at the very commencement of a trial was excluded by the court with the remark, “I think you had better pass that for the present,” and the attention of the court was not again called to it, counsel is not in a position to assign error thereon, since the court has the right to direct the order of proof.
    4. Witnesses — Estimate of Value op Goods.
    A refusal to permit a witness to give the value of goods on the first floor of a store is not prejudicial, where it is not contended that this would enable the witness to fix the value of the whole stock, which is the fact in issue.
    5. Same — Interest in Suit.
    Plaintiff in replevin to recover possession of goods purchased through fraud by one defendant and sold by him to another defendant before the commencement of the suit may be cross-examined as to the several times and cases in which he has testified in regard to the title to the goods in suit, for the purpose of showing his interest in the controversy and in the subject-matter involved, and his anxiety to bring it to a successful issue.
    6. Trial — Objection to Evidence — Estoppel to Raise Question on Appeal.
    In replevin for a stock of goods, plaintiff’s witness testified on cross-examination that, at a time referred to in his direct examination, he knew that defendant E. claimed to own the stock and was in possession. He was then asked, “You knew, then, that defendants H. and B. were not claiming to be in possession, did you not ?” Plaintiff’s counsel objected to the question as incompetent, “for the reason that witness has not testified to any possession by either H. or B.” All of the testimony of the witness which was claimed to have established the possession' of H. was thereupon stricken out. Held, that counsel, by his objection to the cross-examination, estopped himself from claiming that the testimony stricken out was competent as having a tendency to show possession inH.
    7. Same — Conduct op Counsel — Discretion op Court.
    The tria! court may, in its discretion, permit a party to be called from the witness stand during cross-examination, and consulted by his counsel, and immediately recalled.
    8. Evidence — Letter Found in Street — Admissibility.
    The fact that a brother of plaintiff’s counsel, upon finding in the street a sealed envelope containing a letter from one of the defendants, placed the same in the hands of such counsel, instead of forwarding it to another of the defendants, to whom it was addressed, did not deprive the plaintiff of the right to introduce the letter in evidence.
    8. Same — Rejection of Competent Testimony — When Cured by Verdict.
    The exclusion of such letter was harmless error where the jury found against the only one of the defendants against whom it would have been competent.
    Error to Clinton; Daboll, J.
    Submitted June 18, 1897.
    Decided September 23, 1897.
    Replevin by Emanuel Schloss, Albert W. Schloss, and Louis Strasburger against David M. Estey, Hiram M. High, and John M. Bryson. Prom a judgment for defendants, plaintiffs bring error.
    Affirmed.

      Lyon & Dooling {Julian G. Dickinson, of counsel), ior appellants.

      Fedewa & Walbridge and Will H. Brunson, for appellees.
   Long, C. J.

In 1893 the plaintiffs were manufacturers and wholesale dealers of clothing at Detroit. Defendant Bryson at that time was engaged as a retail dealer in clothing and also a manufacturer of comforters at Ovid. In the fore part of May of that year, Mr. Pilmore, the agent of plaintiffs, sold to Bryson a quantity of goods, consisting of clothing, to the amount of $863.35. The goods were shipped the last of August, and received by him. On the 13th of September plaintiffs commenced this action of replevin to recover possession of the goods, and took upon the writ all but about $30 worth. The grounds upon which they claimed the right to recover were that Bryson had not acquired title to the goods, as he had made false and fraudulent representations to the plaintiffs’ agent as to his financial standing at and prior to the time he ordered them, which representations had been relied upon in making the sale; and also that Bryson was financially insolvent at the time of the sale, and did not intend to pay for the goods at the time he ordered and received them. Plaintiffs introduced testimony tending to show that Pilmore had been acquainted with and had sold goods to Bryson for about five or six years before the sale in question, and that Bryson, before this sale was made, represented to Pilmore that he owned a certain brick store in the village of Ovid, known as the “ Lambie, Clark & Hulse Store,” of the value of $3,000 to $4,000, and also that he owned the residence property where he lived, valued at $5,000. Testimony was also introduced tending to show that Bryson had made like representations to the agent of another wholesale firm, and by such representations secured about $1,000 worth of goods. It was also claimed upon the trial that Bryson had purchased from various other wholesale dealers a large quantity of goods, to the amount of about $12,000, which he received during the 60 days immediately before his failure, so that he had at the time of his failure (September 9, 1893) from $17,000 to $23,000 worth of goods in his possession in the village of Ovid.

Plaintiffs also claimed that, previous to the shipment of their goods and the failure of Bryson, he held out. through his own representations and those of co-defendant High, an attorney at Ovid, that he was solvent, and able to pay five dollars for every one he owed. The only evidence in the record as to representations made by defendant High is contained in two or three letters, the first one written August 24th, to the Chicago Kid Glove Manufacturing Company, in response to its inquiry, and states: “He carries a stock of dry goods and gents’ furnishings. The estimated value of the stock is $12,000, and is free from all incumbrance. * * * I, personally, do not know how much he is owing. I do not think that debts press him in the least.” The next letter written by High was in answer to one from the Merchants’ & Manufacturers’ Exchange at Detroit, dated September 8, 1893, in which that exchange asked that it be given in confidence such information “as you can” in regard to the responsibility, general standing, past history, etc., of Bryson. To this High answered: “Stock of about $15,000, clear, but I think he is in debt somewhat; has good, fair business; refuses to make statement.” September 11th following, High wrote the exchange that Bryson had given him as trustee a mortgage for $5,437.95; that the mortgage covered the entire stock and business in trade to secure $1,000 to High individually, $1,000 to the First National Bank of Ovid, $2,000 to the Oakland County Savings Bank, and the balance to S. Simon & Company, of Detroit. High added to this letter, “This morning Mr. Bryson gave a bill of sale to D. M. Estey, of Owosso; consideration, $9,100.” It appears that Mr. Estey, who is the father-in-law of Bryson, on August 28th, in response to an inquiry in regard to Bryson from the Bradstreet Company, wrote that company: “I simply helped Mr. Bryson pay some of his obligations. I am not backing him in any other way. I helped him to pay some of his bills last fall, and some since the financial stringency; but from this on I expect him to be able to take care of himself.”

It is claimed by the plaintiffs that after Bryson received this large quantity of goods from different wholesale dealers, and before his failure, he removed the tickets from the goods, and had some tickets of his own printed and put upon the goods, and that this was done for the purpose of destroying their identity; that 'these tickets were put by Bryson upon all of the goods, except those which were kept on the second floor of the store. It appears that upon Monday morning, September 11th, a bill of sale was made by Bryson to defendant Estey, the consideration being stated in it as $9,100. The chattel mortgage to High had been placed on file in the township clerk’s office on the Saturday night previous. Mr. Estey claims to have gone into immediate possession of the property'under his bill of sale, with an agreement with Bryson to pay the chattel mortgage given to High. It was claimed further on the trial, by the plaintiffs, that the chattel mortgage given to High was largely in excess of what was actually due to him, aside from that securing other creditors; that the bill of sale to Mr. Estey was also given for a larger amount than that due him, and that the stock of goods which it covered, at that time, was of the value of some $17,000; and that the bill of sale and the chattel mortgage were given for the purpose of assisting Bryson to cover up his property, with intent to cheat and defraud the unsecured creditors. Some testimony was also given by the plaintiffs tending to show that Bryson, Estey, and High made an effort to compromise and settle some of the claims, which the plaintiffs now contend was further evidence of fraud upon their part as against the general creditors. It was also claimed by the plaintiffs that all three of the defendants were in possession of the property at the time the plaintiffs claimed the goods in controversy. It was further insisted that, even though they were not in possession of the goods jointly, yet there was a conspiracy among the three to assist Bryson to cheat and defraud his creditors.

On the other hand, it was contended by the defendants that the evidence is undisputed^ that Bryson did own the house referred to by Mr. Pilmore in his testimony, and that the testimony in reference to the ownership of the store was contradicted by several witnesses, so that it became a question for the jury to determine whether any' false representations were made by Mr. Bryson.' Defendants further claimed on the trial that the total amount of goods received by Mr. Bryson during the 60 days before his failure did not exceed $7,000, and that at that time Bryson was indebted for goods in the amount of about $3,000. It was explained by the defendants on the trial that the reason of putting the new numbers on the goods was that Bryson’s store at Laingsburg had been broken into by burglars, and the lot numbers pulled off of some of the goods; that these goods were afterwards removed to Ovid, and new numbers put on them. Bryson testified that he was not insolvent when he bought and received the goods; that he intended to pay for them, and that, if he had been left alone, he could have carried his business through; that there was a panic in August of that year; sales were not as good as expected; that he countermanded orders for goods that were about to be shipped to him to the amount of about $3,000; and that $610 worth ■of these goods were ordered from the plaintiffs in this case, and the order for the same countermanded.

Defendants claimed further, and gave testimony tending to show, that the amount of the chattel mortgage given to High was for a bona fide indebtedness. The only claim made by the plaintiffs was that the $1,000 put in the mortgage for Mr. High was excessive. This was explained by High, that he was to be páid $25 as a retainer fee from Bryson, and that his services as trustee under the mortgage were fixed at $175 and put in the mortgage; that the balance was a bona fide indebtedness. So far as Mr. Estey’s connection with the case -is concerned, it appears by the testimony of defendants that, in the fall before this mortgage was given, Mr. Estey had become indebted as an indorser upon some of Mr. Bryson’s paper. He had further indorsed for Bryson in the following spring. Hearing of the giving of the chattel mortgage to High, Mr. Estey claims that he insisted to Bryson that his claim should be taken care of; that, as a result of the talk between them, the bill of sale was given, and Estey agreed to pay Bryson $9,100 for the stock, and pay the chattel mortgage to High; that, on figuring the .amount due to Estey from Bryson,'it was found to be $9,062.84. The difference of $37.16 Mr. Estey gave his check for to Bryson. Defendants gave testimony tending to show that the value of the goods did not exceed the amount paid for them by Mr. Estey, which amount, including the High mortgage, was about $14,600. It is claimed by the defendants that every dollar of this went to pay the bona fide indebtedness of Mr. Bryson. The jury returned a verdict in the case in favor of defendant Estey for the sum of $950.35, being the full value of the goods taken by tbe plaintiffs. They also found by their verdict that defendants High and Bryson were not in possession of the goods, as claimed, at the time of suing out the writ of replevin. Judgment was rendered in favor of Estey for the amount of the goods, and for costs in favor of all the defendants against the plaintiffs.

There are many assignments of error contained in the record, relating to the testimony as given, to the refusal of the court to admit certain testimony, the refusal to give plaintiffs’ requests to charge, to the requests of the defendants given, and to certain portions of the general charge. We shall treat of such assignments of error as we think merit attention; the others will be passed over without remark; but all of them have received careful consideration.

The court directed the jury that if they found that Bryson made the false representations as claimed, and that plaintiffs relied upon them, and that they were thereby induced to make the sale of the goods, then the sale, as between plaintiffs and Bryson, was void; or if they found that Bryson was insolvent at that time, and purchased the goods with the intention of not paying for them, then such sale would be void; also, that if High and Estey knew of this fraud on the part of Bryson, and participated in it, or had such knowledge or information about it that would put a reasonably prudent man on inquiry, they could get no better title than Bryson. Upon the question of Mr. Estey’s good faith in making the purchase, the court instructed the jury:

“If you find that the value of the goods was greatly in excess of that [the amount that Estey paid, $14,600], or in excess of that to any appreciable extent, as a matter of fact you would have a right to take that into consideration as bearing upon the question as to whether it was in good faith. If all the other conditions were honest, the mere fact of that being in excess might not render it fraudulent; but you should consider that fact as bearing upon that question. I can’t say to you that it proves it or establishes it, but, if you say that it is evidence of a fraudulent purpose, you have the right to use it in that direction.”

We think this was a proper charge. It is well to state here that there was no dispute upon the trial that the whole amount claimed to have been paid by Mr. Estey was actually paid or secured, and that he actually assumed and agreed to pay the amount of the High mortgage. There is nothing upon this record to show but that Mr. Estey believed that the High mortgage was valid. It is also shown that there was something presently paid by Estey upon the execution of the bill of sale, and that he assumed and agreed to pay several thousand dollars of Mr. Bryson’s debts.

The jury, after being out for a time, came into court, and stated that they had found a verdict in favor of Estey and High for the value of the goods, and in favor of plaintiffs against Bryson. The court directed them that, having found a verdict in favor of Estey and High, they could not find against Bryson. The jury retired, and again returned, saying that they had found for Mr. Estey for $950.35 (the value of the goods and interest), but were unable to agree as to the other defendants. The court then said to them:

“If you find that Estey got the goods without fraud, and is entitled to hold them, then your verdict should be for High and Bryson also; but you would not find any sum as damages in favor of the other defendants, they not claiming to be in possession, and not asking for anything except a finding of no cause of action, which would simply in this case say they were not in possession of the goods, but that Estey was, and was entitled to hold them.”

The jury thereafter so found. We discover no error in this charge. From what took place, and what was said to the court by the jury, it is evident that they found Bryson guilty of the fraud; that they did not believe that either High or Estey participated in it or was conversant with it; that they found Estey’s purchase was in good faith and for a sufficient consideration, and that the chattel mortgage held by High was given in good faith and to secure a bona fide indebtedness.

But counsel contend that the court was in error in not giving certain requests to charge. The second request had relation to the fraud perpetrated upon plaintiffs byBryson, and was sufficiently covered by the charge as given. The sixth request also related to the same subject. But we may add that the jury did find Bryson guilty of fraud, so that the plaintiffs were in no manner injured by this refusal. The ninth request, which was also refused, had reference to the acts of Estey and High, and their knowledge or want of knowledge of-the fraudulent conduct of Bryson, and was fully covered by that portion of the charge already quoted. The request in relation to the chattel mortgage was also sufficiently covered by the general charge. In fact, after an examination of the requests refused and the general charge of the court, we are satisfied that no error was committed. The requests were all' given in substance, and were sufficiently covered by the general charge, so far as the plaintiffs were entitled to have them given. The general charge very fully stated the law of the case, and, under the facts shown, there was apparently but one important question in it, and that was whether Estey was a good-faith purchaser. That the court fairly submitted to the jury.

The question of Mr. Bryson’s conduct is raised by many of the assignments of error, but it has but little place here in this court. If Mr. Estey bought the goods in good faith, paying substantially for them all they were worth, —that is, if he bought them with no information or knowledge of the fraud of Bryson, and was in possession of them as a good-faith purchaser at the time of suing out the writ of replevin, — the verdict should have been in his favor, whatever may have been the misconduct of Bryson in purchasing them.

It is claimed that the court erred in refusing to permit witness Strasburger, one of the plaintiffs, to testify to defendant High’s statements as to his authority, and who authorized him, to offer 25 cents on the dollar in settlement of plaintiffs’ claim. Witness had testified that he had gone from Detroit to Ovid on the day before the writ was issued, and at once had a talk with High in reference to the Bryson matter, in which High said, “I think I can fix this thing up. I think I can give you 25 cents on the dollar.” .He was then asked, “Did he say anything further at that time as to whether or not he was authorized to offer 25 cents, and, if so, who authorized him?” While counsel contend that this was ruled out, yet the record shows that the court stated, “I think you had better pass that for the present,” and it was passed; counsel for plaintiffs saying, “Exception.” Even if this testimony were competent, we think counsel not in a position to assign error upon it. This was at the very commencement of the trial, and the attention of the court was not called to it again, so far as shown by this record.' The court had the right to direct the order of proof.

Mr. Strasburger was asked the value of the goods on the first floor of the Bryson store, and the question was ruled out. We think there was no prejudicial error in this, even if the testimony was competent. The inquiry was proper and pertinent as to the value of the whole stock, and this the plaintiffs were permitted to go into fully. It was not claimed by counsel at that time that this would enable the witness to fix the value of the whole stock.

The witness was asked on cross-examination as to the several times and cases in which he had testified in regard to the title to the goods transferred to Estey by Bryson. It is contended that the inquiry was not made for the purpose of showing that there were any contradictory statements made by the witness, and that therefore it was incompetent. Counsel cite Brennan v. Busch, 67 Mich. 670, in support of that contention. In that case, however, it appears that the inquiry was as to how many cases the witness had had in the Supreme Court. The inquiry was general, and had no reference to the case then on trial. Here the inquiry was addressed to plaintiff’s interest in this very controversy, his interest in the subject-matter involved, and his anxiety to bring it to a successful issue. It was competent for that purpose.

It is also contended that the court was in error in striking out the testimony of the witness Solomon. It appears that Solomon had shipped goods to Bryson to the amount of about $500 before the failure. He went to Ovid the day before the writ in the present case was issued, and took out a writ of replevin for his goods. He testifies that, when he had his goods selected, defendant High came to him and said: “You have got a very good case. You go and take your goods and go home. I will settle with youthat High was chatting with different persons in the store, looking over goods, and said again, “They will get their hands burned by taking these goods.” Counsel for plaintiffs now contend that this was competent as showing that High was in possession. If the case stood as. contended by counsel for plaintiffs, it would appear that this testimony was competent. But we must consider the matter as it arose upon the trial. On cross-examination the witness was asked by counsel for defendants:

'“You knew when you were in Ovid that Estey was claiming to own the stock and was in possession of the stock ?
“A. I suppose so; yes.
“Q. You knew, then, as a matter of fact, that High and Bryson were not claiming to be in possession of the stock, did you not ?
Counsel for Plaintiffs: I object to that as incompetent and improper, for the reason that this witness has not testified to any possession by either High or Bryson; in fact, he disclaims any conversation in reference to that, and this must necessarily be hearsay evidence.”

After some colloquy between court and counsel, the court said: “I think I will strike out this evidence which you claim establishes possession in Mr. High, as to what transpired there in the store, until such time as you put in evidence that makes it competent.” On the trial, therefore, counsel claimed to the court that the witness liad not testified to any possession by either Bryson or High, and in fact that the witness disclaimed any conversation in reference to it. After this statement, counsel cannot now be permitted in this court to make such a claim.

It is claimed the court erred in refusing to allow plaintiffs to show by Bryson that he settled another claim upon a small percentage. We think this ruling could not have prejudiced the plaintiffs. The jury found that Estey was in possession; that his purchase was valid; and also found that Bryson was guilty of fraud, but that Estey was in no manner connected with it, as they found him entitled to a verdict for the value of the goods.

Some claim is made that the court erred in permitting Bryson to be called by his counsel from the witness stand during his cross-examination as a witness, consulted by his counsel, and then immediately recalled. We have read this part of the record with some care, and do not think there is anything in the question calling for comment. The trial court has some discretion in these matters. We cannot say that it has been abused in this instance.

It is contended that the court erred in permitting defendants’ counsel to interrogate the witness Bryson in reference to Exhibit 7 — J, and in removing him from the witness stand, and allowing counsel to call defendant High, and show by him the circumstances under which plaintiffs’ counsel obtained possession of Exhibit 7 — J, and in refusing to receive such exhibit in evidence. The objec-. tion of counsel for defendants was that the manner in which it came into the hands of counsel for plaintiffs precluded them from using it as evidence; and upon this theory the court ruled it out. It appears that this exhibit was a writing made by Mr. Bryson, put in an envelope, sealed up, and addressed to Mr. Hiram M. High. The testimony shows that the letter was picked up on the street by the brother of one of plaintiffs’ counsel, an attorney at law, and engaged in the office with plaintiffs’ counsel. He placed the letter in the hands of plaintiffs’ counsel, instead of giving or sending it to Mr. High, to whom it was addressed. Counsel kept it until defendant Bryson was called to the witness stand, and then presented it to him for identification, and thereafter offered it in evidence. It appears to be conceded that Mr. High never saw it until it was offered in evidence. It was shown to be sealed when it left Mr. Bryson’s hands. While we think the paper was competent evidence against Bryson, and should have been admitted in evidence, yet we are unable to see how its rejection, under the circumstances, could have prejudiced the plaintiffs’ case. Without it the jury convicted Bryson of making a fraudulent purchase, and the letter could not have had any weight in determining the question of Mr. Estey’s good faith.

We are satisfied that the case was fairly tried, and we find no error in it prejudicial to the plaintiffs.

The judgment must be affirmed.

The other Justices concurred.


text:
    PEOPLE v. PARKER.
    1. Forgery — Instruments Subject to — Statutes.
    A paper writing in words and figures as follows: “ Canvass of 1896. 428. Name; Stewart-Hartshorn Co. hereby agree to pay, on publication, $65 for the insertion of 1 page and 1 display heading,” signed “ Stewart-Hartshorn Co., name of firm,” — is not within the statute (2 How. Stat. § 9213) enumerating the instruments which may be the subject of forgery.
    2. Same — Common-Law Rule — Information.
    Such an instrument being on its face a nudum pactum, an information for uttering and publishing the same, knowing it to be forged, in order to set up a common-law offense, must, by averment of matter aliunde, show that the instrument published was one which, if genuine, would be binding.

      Exceptions before judgment from Muskegon; Russell, J.
    Submitted June 17, 1897.
    Decided September 23, 1897.
    Harry J. Parker was convicted of uttering a forged instrument. Reversed, and prisoner discharged.

      F. W. Cook (Fcmcher & Stedman, of counsel), for appellant.

      Frecl A. Maynard, Attorney General, and R. J. Macdonald, Prosecuting Attorney, for the people.
   Long, C. J.

On April 26, 1897, an information was filed in the Muskegon circuit, charging that—

“On the 27th day of February, 1897, at the city of Muskegon, * * * the respondent feloniously did utter and publish as true a certain false, forged, and counterfeited paper writing, promissory note, order for the payment of money, or order for other property, which said false, forged, and counterfeited paper writing, promissory note, order for the payment of money, or order for other property was in the words and figures following: ‘ Canvass of 1896. 428. Name, Stewart-Hartshorn Co. hereby agree to pay, on publication, $65.00 (sixty-five dollars), for the insertion of 1 page and 1 display heading. StewartHartshorn Co., — Name of firm. Street address, 520 W. Ave. Business, Shade-rollers, ’ — with intent then and there to injure and defraud, he, the said Harry J. Parker, at the time he so uttered and published the said false, forged, and counterfeited paper writing, promissory note, order for the payment of money, or order for other property, as aforesaid, then and there well knowing the same to be false, forged, and counterfeited, contrary to the statute in such case made and provided,” etc;

To this information the respondent pleaded guilty, and his plea was duly entered of record. Thereafter the respondent, by his attorney, moved the court for an order staying sentence and judgment, for the reasons: (1) That there was no offense alleged or set out in the information; (2) that the written instrument described and set forth in the information, as appears upon the face of said information, is not the subject of forgery, whereby the uttering and publishing of the same as true, knowing- the same to be forged, etc., is not a crime. This motion was overruled.

It is contended by counsel for respondent:

(1) That the instrument set forth in the information is not one enumerated in the statutes of this State which may be made the subject of forgery.
(2) That, if it were such an instrument as would be the subject of forgery at the common law, the allegations in the information are insufficient to constitute the uttering and publishing of a forged instrument like the one in question a crime, within the meaning of the common-law rule, as the paper upon its face is no more than nudum pactum, which at common law was never the subject of forgery, without the averment of extrinsic facts showing why and in what manner the paper could be made available as a legal document.

Section 9214, 2 How. Stat., provides that:

“Every person who shall utter and publish as true any false, forged, altered, or counterfeit record, deed, instrument, or other writing mentioned in the preceding section, knowing the same to be false, altered, forged, or counterfeit, with intent to injure or defraud as aforesaid, shall be punished by imprisonment,” etc.

The preceding section provides:

“Every person who shall falsely make, alter, forge, or counterfeit any public record, or any certificate, return, or attestation of any clerk of a court, public register, notary public, justice of the peace, township clerk, or any other public officer, in relation to any matter wherein such certificate, return, or attestation may be received as legal proof, or any charter, deed, will, testament, bond or writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange, promissory note, or any order, acquittance, or discharge for money or other property, or any acceptance of a bill of exchange, or indorsement or assignment of a bill of exchange or promissory note for the payment of money, or any accountable receipt for money, goods, or other property, with intent to injure or defraud any person, shall be punished,” etc.

We are satisfied that this instrument, whatever it may be called, is not one of the instruments mentioned in the statute which is the subject of forgery. It is not a promissory note; it is not an order for the payment of money. As was said in People v. Smith, 112 Mich. 192:

“An order for money has a well-understood meaning, and it would hardly include the case of one who requests or directs another to solicit and receive subscriptions. Usually such an order contains a request or direction to a third party, who is indebted to the maker of the order, to pay such money to the person named.”

All the present instrument purports is that StewartHartshorn Company agrees to pay, on publication, $65 for the insertion of one page and one display heading. What is to be inserted is not mentioned in the instrument. What is to be published cannot be known from the instrument itself. What Stewart-Hartshorn Company was to pay for is not stated, and we think counsel correct in pronouncing it nudum pactum. It is not apparent how this instrument could injure any one.

We think it is well settled that, to constitute forgery at the common law, the forged instrument must be one which, if genuine, would bind another, and that it must appear from the indictment that such is its legal character, either from the recitals or description of the instrument itself, or, if that does not show it to be so, then by averment of matter aliunde which will show it to be of that character. In People v. Shall, 9 Cow. 778, the respondent was indicted for the forgery of “á certain promissory note, which said note has been and is lost, and the tenor and substance of which said false, forged, and counterfeited note is as follows: ‘ Three months after date, I promise to pay to Sebastian I. Shall, or bearer, the sum of three dollars in shoemaking at cash price, the work to be done at his dwelling house near Simon Vrooman, in Minden. David W. Houghtaling,’ — with intent to defraud the said David W. Houghtaling.” There was also a count in the indictment for uttering and publishing this instrument as true, knowing it to be forged, etc. The indictment contained no averment of any extrinsic matter giving the instrument forged, allowing it to have been genuine, any force or effect beyond what it bore on its face. There was a conviction and motion in arrest of judgment, which was overruled. Mr. Justice Cowen, in delivering the opinion of the court, said:

“It is scarcely necessary to observe that the instrument set out in this indictment is not a promissory note, within the statute of Anne, and it is agreed that the writing does not come within any of the statutes of forgery, it being payable neither in money nor goods, but labor. The indictment is therefore based upon the common law. Another defect renders it utterly void, of itself, as a common-law contract. It expresses no value received, nor any consideration whatever, and no action could be maintained upon it, if genuine, as a special agreement to perform labor, without averring and proving a consideration dehors the instrument. The indictment avers no extrinsic fact by which it might be operative, nor is it conceivable how matter for such an averment could exist. * * * It does not come within any of the cases sustaining indictments, but to -me it appears to be directly within the cases cited holding that instruments purporting to be void on their face, and not shown to be operative by averment, if genuine, are not the subject of forgery. How is it possible, in the nature of things, that it should be otherwise? Void things are as no things. Was it ever heard of that the forgery of a nudum pactum —a thing which could not be declared on or enforced in any way — is yet indictable ? It is the forgery of a shadow.”

The same rule was laid down in People v. Tomlinson, 35 Cal. 503, in which are cited, as sustaining the same doctrine: Rex v. Knight, 1 Salk. 375, 1 Ld. Raym. 527; Reg. v. Marcus, 2 Car. & K. 356; People v. Shall, 9 Cow. 778; People v. Harrison, 8 Barb. 560; State v. Briggs, 34 Vt. 501; Com. v. Ray, 3 Gray, 441; Barnum v. State, 15 Ohio, 717 (45 Am. Dec. 601); Clarke v. State, 8 Ohio St. 630. See, also, Carberry v. State, 11 Ohio St. 410; Reed v. State, 28 Ind. 396.

We are satisfied that respondent was improperly convicted under this information, and that he should have been discharged upon the motion in arrest of judgment. The information will therefore be quashed, and the respondent discharged.

The other Justices concurred.


author: Hooker, J.

text:
    KILEY v. BOND.
    1. Highways — Drains.
    The legislature may authorize the laying of drains in highways by other officers than those having the highways in charge.
    2. Same — Highway Officers — Parties to Drain Proceedings.
    The question whether the highway officers should be made parties to a proceeding to deepen and widen a drain located within the limits of a highway is not open to consideration in a suit by adjacent land owners to enjoin the prosecution of the work.
    S. Same — Narrow Roadway — Injunction.
    The widening of a drain constructed in a highway will not be enjoined at the suit of adjacent land owners on the ground that it would render the roadway so narrow as to be unsafe, where there is nothing to indicate that the danger could not be obviated by the erection of suitable barriers.
    Appeal from Monroe; Kinne, J.
    Submitted June 17, 1897.
    Decided September 23, 1897.
    Bill by Peter Kiley and others against Albert Bond, county drain commissioner, to enjoin the deepening and widening of a drain. Prom a decree for complainants, defendant appeals.
    Reversed.

      George M. Landon and C. A. Golden, for complainants.

      E. B. Gilday and Willis Baldwin, for defendant.
   Hooker, J.

The circuit court for the county of Monroe, in chancery, made a decree enjoining the deepening and widening of a drain known as the “Ross Drain,” as projected, within the limits of a certain highway, adjacent to the premises of the complainants. The highway was laid out and opened about the year 1866, some six years after the original drain was established. This drain is now within the limits of the highway, and it is proposed to increase its width to about 35 feet, all of which will be within the highway, except, as the defendant claims, 3 to 5 feet. If, therefore, we take the defendant’s estimate, and say that 30 feet will be within the limits of the highway, it would leave 46 feet of a 4-rod roadway for highway purposes. The complainants claim, however, that this road, in the widest place, is but 53 feet between fences, while at most points it is under 45, and in one or more places it is less than 43, feet wide.

The important questions raised by the complainants are:

1. That the county drain commissioner has no jurisdiction, because notice was not given to the highway commissioner.
3. That the attempted widening and deepening will be equivalent to a discontinuance of or substantial injury to the highway.
3. That the abutting owners may appeal to the court to prevent such threatened discontinuance of or substantial injury to the highway.

It has been the settled policy of this State to permit the use of highways for drainage purposes, as appears from the legislation upon the subject from 1819, when Michigan was a territory, until the present time. See 1 Ter. Laws, p. 453; 2 Ter. Laws, p. 325; Act No. 169, Laws 1857; Act No. 257, Laws 1859; Act No. 216, Laws 1861; Act No. 43, Laws 1869; Act No. 98, Laws 1871; Act No. 269, Pub. Acts 1881. We have no douht that it is within the power of the legislature to permit this, and that it may authorize the laying of drains in highways by other officers than those having the highways in charge. See Conrad v. Smith, 32 Mich. 429. In cities sewers are ■uniformly constructed in the highways, and they are not usually constructed by or under the supervision of highway officers.

Whether such officers should be consulted, or made parties to proceedings to lay sewers or drains, need not be discussed here, as the public is not complaining. The complainants are adjacent land holders, who must stand upon their own equities or jurisdictional defects. ^ This law does not require notice to be served on highway officers, but, if it did, we do not discover that such notice was omitted, or that the service was not made upon the township, as the law directs.

If it be conceded that the drain commissioner may not lawfully use so much of the highway as to practically preclude public travel or safety, we are not satisfied that we have such a case before us. If this highway were of the full statutory width, there would be no difficulty in the matter, and, if it be less than that, there is nothing to indicate that it cannot be made safe by the erection of fences and barriers, as provided by law in cases where natural watercourses encroach unduly upon the highways. We think that the evidence shows that there would be sufficient room for public travel, and, if the township authorities were not satisfied to provide the necessary safeguards that the protection of these complainants and the general public required, we may suppose that they would let it he known.

A decree will be entered dismissing the complainants’ bill, with costs of both courts.

The other Justices concurred.