author: Blair, J.

text:
    HARSTAD v. H. A. BAUMAN CO.
    Sales — Payment—Account Stated.
    Plaintiffs sold their output of poles and posts to the Michigan Cedar & Lumber Co., which paid for them by notes and directed plaintiffs to ship the timber to defendant. After the maturity of one of the notes, defendant paid it and sent a statement crediting themselves with that amount on their account with plaintiffs. In response, plaintiffs mailed a statement to defendant adopting the balance so shown and adding other items which, defendant subsequently paid according to the invoices. The Michigan Cedar & Lumber Co. gave its notes for the amount then claimed by plaintiffs to be due on the original contract, and, becoming subsequently bankrupt, defaulted in paying them. Plaintiffs brought action against the consignees of the lumber and sought to recover the amount credited for the payment of the first note. Held, that the payment was properly credited on defendant’s account and the striking of balances and settlement by the several notes constituted an account stated.
    Error to Delta; Stone, J.
    Submitted April 18, 1910.
    (Docket No. 58.)
    Decided July 14, 1910.
    Assumpsit by Ole Harstad and Phil Labre, copartners as Harstad & Labre, against the H. A. Bauman Company for goods sold and delivered. A judgment for plaintiffs is reviewed by defendant on writ of error.
    Reversed.

      L. D. Eastman (Eastman & Martineau, of counsel), for appellant'.

      A. H. By all and Clyde Hayden, for appellee.
   Blair, J.

This is an action of assumpsit to recover from the defendant as successor of Lindsley Bros, a balance of the purchase price of certain cedar posts and poles claimed to be due to plaintiffs. Several days prior to May 8, 1903, plaintiffs entered into an executory contract with the Michigan Cedar & Lumber Company of Menominee, Mich., to sell to it their entire output of posts and poles. The contract, among other provisions specifying prices, etc., contained the following:

“Terms of payment to be as follows: A payment of $2,500.00 to be made on or before May 6th in negotiable paper, which is backed by the Lindsley Bros. Co., of Menominee, Mich. The balance of the purchase price to be paid upon receipt of invoices for each car, in the sum of 75 per cent, for each invoice or car when loaded, in cashless 2 per cent., and the balance of 25 per cent, to be paid 60 days from same date, the payments of cash not to begin until said Michigan Cedar & Lbr. Co. have received enough material to cover the first payment above mentioned of $2,500.00, which payment at this date or writing has been paid and accepted by yourselves. The poles are to be inspected on grounds at once by the Michigan Cedar & Lbr. Co., according to the N. W. W. Cedar Men’s Association inspection rules.”

The Michigan Cedar & Lumber Company was under the control and management of A. L. Lindsley, a brother of George L. Lindsley. George L. Lindsley was president, and his brother E. A. Lindsley was secretary and treasurer, of the Lindsley Bros. Co., but neither of them, so far as this record shows, was connected with the Cedar Company. On or about May 8,1903, two noteá for $1,250 each, due, respectively, in 60 and 90 days, were executed and delivered to plaintiffs by the Cedar Company. These notes were indorsed before delivery by Lindsley Bros. Co., were at once discounted at a bank, the cash paid to plaintiffs and the amount credited upon their books to the Cedar Company. After the making of the contract the Cedar Company directed the plaintiffs by letter to ship the poles to the Lindsley Bros. Co. On May 14, 1903, plaintiffs shipped to Lindsley Bros. Co. poles to the amount of $3,606.60, on June 9, 1903, poles to the amount of $398.05, and on July 11, 1903, poles to the amount of $134.30. With the exception of a later invoice of $27, the above items comprise the shipments to Lindsley Bros. Co. of the poles covered by the contract. The posts covered by the contract were shipped to the Cedar Company, and plaintiffs kept separate accounts of the poles and posts. Up to and including May 14, 1903, plaintiffs had shipped to the Cedar Company posts to the amount of $513.12. September 1, 1903, the Cedar Company wrote the following letter, which was received by plaintiffs:

“ Enclosed please find check for $446.32 to apply on our account; also an acceptance for 60 days amounting to $526.83 which we trust you will find acceptable, as you desired good payment the first of this month. We also hope that you have written the Lindsley Bros. Co. and they have helped you out in some manner. When you first began shipping this material, we wrote you to invoice all poles to the Lindsley Bros. Co., and this of course carries the demand on them for the payment of the same when due, which we trust you have, less $1,250 on one note which they have paid, we remain,” etc.

On September 14, 1903, Lindsley Bros. Co. sent the following statement, which was received by plaintiffs:

Harstad & Labre, Bark River, Mich.
In Account with
Lindsley Brothers Company,
Dealers in Cedar Products.
Interest at 7 per cent, charged on accounts after due. Exchange and express charges on remittance must be prepaid.
1903.
May 19 Insp. Report No. 1179...................$3,606 60
June 9 “ “ 1241-1242.............. 398 05
July 14 “ “ “ 1264------------------- 134 30
Aug. 15 Cr. Memo 8-15 31567-45191............. 1 00
Aug. 8 M. C. & L. Co.’s note paid by us _________________$1,250 00
Balance............ 2,889 95
$4,139 95 $4,139 95
Balance____________$2,889 95
We are sending you this for comparison.
Very truly yours,
Lindsley Bros. Co.

On or about October 14, 1903, plaintiffs gave to Lindsley Bros. Company the following statement:

M. Lindsley Bros. Co., To Harstad & Labre, Dr.
Dealers in Dry Goods, Clothing, Hats, Caps, Boots, Shoes, Groceries, Hardware and Implements, Cedar Products, and Cordwood.
Bark River, Mich. Sept. 14. Your stmt.............................$2,889 95
Our invoice 9-7 " 35............................ 27 00
$2,916 95
11 24. By 60 ds. note $600
Oct. 14. By 60 ds. note 1,500 2,100 00
$816 95

Some time in October, 1903, plaintiff Labre went to Menominee and talked with E. A. Lindsley about their statement. He testified :

Q. You may state whether or not you made any objection to that $1,250 credit at that time ?
“A. I just mentioned it. * * *
“Q. What did you say to him and what did he say to you about that there ?
“A. Isays, ‘ I don’t think this note ought to be charged to me,’ so he says, ‘We paid it, and it is charged,’ sol didn’t do anything more about it; they were ahead of me three or four thousand dollars. After that I again went to Menominee. I think it was a month later. I saw Mr. George Lindsley himself in the office. At that time the Michigan Cedar & Lumber Company was in the same office with defendant.
“Q. What did you go there for at that time ?
“A. The account was running behind, and I told George Lindsley I wanted some money; I told him that they were not living up to the contract at all; the account was way past due and the stuff wasn’t moving as it ought to be. To that George said at that time he would take over the management of the Michigan Cedar & Lumber Company himself and see that everything went through all right and that everybody got their money. He and A. L. Lindsley were in there together. A. L. Lindsley was a member of the Michigan Cedar 8c Lumber Company. I understand George Lindsley was president of the Lindsley Brothers Company. At that time I took some notes from the Michigan Cedar & Lumber
Company, and some of them were renewed after that. ‡ ‡ ‡
“Mr. Myall: Why did you take these notes ?
“Mr. Labre: Mr. Lindsley told me that he would take the management of the company and see that everything pulled through all right and that everybody was paid.
“The Court: The question is, Is that the reason you took these notes of the Cedar Company ?
“Mr. Labre: Yes, sir.
“ Whereupon the court ruled to permit the answer to stand, but not for the purpose of showing any authority of the company, and an exception was duly given to the defendant. * * *
“ Myself nor any member of my firm never authorized Lindsley Bros. Co. to apply that note on their account. There has never been anything said by them about applying this note on this account, or that I had authorized its application. I never received the $1,250 from Lindsley Bros. Co. except in the manner they indicate here by their paying that note.”

The balance due, according to plaintiffs’ statement to Lindsley Bros. Co., has been fully paid by that company. Plaintiffs also gave a statement to the Cedar Company, crediting it with one of the $1,250 notes and showing a balance due for which plaintiffs accepted three notes, the payment of which would have completely discharged the contract. In the spring of 1904 the Cedar Company went into bankruptcy, and plaintiffs filed the three notes as claims against its estate, but afterwards, on advice of counsel, withdrew their claim and instituted the present suit against defendant.

Mr. George L. Lindsley testified:

“Q. Do you remember the transaction by which you received some poles from Harstad & Labre, in 1903 ?
“A. Well, they shipped some on a contract or a sale the Michigan Cedar & Lumber Co. made to us, yes. * * * We had nothing to do with Harstad & Labre in the purchase of these poles.
ceQ. From whom did you buy the poles?
“A. Michigan Cedar & Lumber Company. * * * Afterwards I made payments on these poles. I made payments in the way which I did for the convenience of bookkeeping, and so that the matter of payments would go through Harstad & Labre; and we didn’t care to have them go around through the Michigan Cedar & Lumber Co., but through Harstad & Labre. We thought it simpler in bookkeeping, and otherwise. * * *
“Q. You may state when the arrangement was made between you and the Cedar Company.
“A. When the shipment commenced — that is, when we commenced, to make payments and that is when the arrangement was made.
“Q. When the shipments commenced. That was under the contract ?
“A. Under the contract.”

At the close of the proofs defendant’s counsel moved for an instructed verdict in its favor. We are of the opinion that this motion was well founded. It is undisputed that the original contract was between plaintiffs and the Cedar Company, and that, originally, defendant contracted for the poles with the Cedar Company. It is further undisputed that the plaintiffs shipped the poles to defendant in compliance with the instructions of the Cedar Company. The contract provided for an advance payment of $2,500 and plaintiffs were paid $2,500 by the Cedar Company before they shipped a pole or a post, but by the contract they were also bound to ship the equivalent of this sum in poles or posts before they could entitle themselves to the subsequent payments. The first shipments of poles and posts, therefore, up to the amount of $2,500 were paid for in advance by the Cedar Company, belonged to it and were subject to its disposal. At the close of May 1 i, 1903, plaintiffs had shipped poles of the contract value of $3,606.60 and posts of the value of $513.12. Deducting the $513.12, there remained $1,986.88 worth of poles actually paid for by the Cedar Company, and sold by it to the defendant company, and as to which the plaintiffs had no claim whatever, against the defendant or the Cedar Company. It turned out, however, that when the second note for $1,250 fell due August 8, 1903, the defendant, either because of its legal obligation or of some arrangement with the Cedar Company, paid the note and was, as against the Cedar Company, its vendor, legally entitled to credit therefor on the purchase price of the poles paid for by the Cedar Company. So far as the plaintiffs were concerned, having received their money on the notes, it was no concern of theirs how the notes were afterwards paid, neither was it any concern of theirs what was done with the cedar which the notes paid for, after they had delivered it in compliance with their contract. All that was done by the subsequent arrangement. of the parties was to allow to the defendant the credit to which it was legally entitled.

We are also of the opinion that an account stated between the parties was conclusively established. That there was a striking of balances between the several parties, an acceptance of notes from the Cedar Company and the defendant for the balances struck, is undisputed, and we think the evidence is equally undisputed that no fraud was practiced upon the plaintiffs and that they fully understood the facts and were not laboring under any mistake, either of fact or of law.

The judgment is reversed, and a new trial ordered.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    KELLEY v. PAULSEN.
    1. Evidence — Immateriality—Slander.
    Testimony, on cross-examination of defendant’s witness, in an action for slander, elicited by an immaterial question and not prejudicial, is not a ground for reversal.
    2. Same.
    No error was committed in refusing to permit the defendant to explain why he had asked plaintiff to get his name off a certain note; the subject being immaterial.
    3. Same — Cross-Examination.
    It was proper to permit the inquiry, on cross-examination, as to defendant’s understanding of, and his intent in using, the words “take” and “steal.”
    4. Same — Libel—Subsequent Wrongful Acts.
    Slanderous utterances made subsequent to the time declared and relied on are inadmissible to prove the slander charged, although they are competent evidence of malice.

      5. Libel and Slander — Advice oe Prosecutor — 'Truthfulness of Statement.
    In an action for slander and malicious prosecution, the question of the fairness and truthfulness of defendant’s statement to the prosecutor being in issue, it was not error to refuse to direct a verdict for defendant on the ground that he acted on the advice of the prosecutor.
    Error to Montcalm; Sessions, J.
    Submitted April 8, 1910.
    (Docket No. 47.)
    Decided July 14, 1910.
    Case by Ernest Kelley against Brede Paulsen for slander. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      JR. A. Hawley, for appellant.

      J. C. Youdan (N. O. Griswold, of counsel), for appellee.
   Blair, J.

This is an action on the case to recover damages for alleged slander and malicious prosecution. The basis of the count for slander is the publishing, on the 18th day of March, 1907,—

“To, of and concerning the said plaintiff these false, scandalous and defamatory words, to wit: ‘You (meaning the said plaintiff) stole the clover seed, and you know you did, and the bridles, too.’ ”

The plaintiff’s testimony tended to prove the uttering of the slanderous words and repetitions at subsequent dates. The basis of the, count for malicious prosecution was a criminal prosecution of the plaintiff for the larceny of the clover seed and bridles, resulting in the dismissal of the case for some technical defect in the complaint.

Defendant gave notice, under his plea of the general issue, as to the slander count, that he would prove the truth of the alleged slanderous charge, and that as to the count for malicious prosecution he laid all the facts of the case within his knowledge before the prosecuting attorney and justice of the peace and acted in good faith under their advice. The jury returned the following verdict:

“We have found the defendant guilty in the first part of that count, slander, and place the damages at $335. We were not sure whether that was for expenses or some other part. And $135 making a total of $450. In the malicious prosecution we find him guilty. One part of that we didn’t understand — whether damages went with that part or not; whether there should be any damages assessed to that part. ”

After retiring again under the direction of the court, the jury brought in the verdict upon which judgment was entered, as follows:

The Court: What is your verdict?
Juror: The first part the same as before, $450 damages in the slander case, $335 for the feelings and $135 for other injuries. The malicious prosecution we find him guilty, and damages $1.00, total, $451.”

Defendant seeks a reversal of the judgment on account of alleged errors in the rulings upon the admissibility of testimony and in the charge of the court. There was a sharp conflict in the testimony as to most of the material questions of fact.

The second assignment of error relates to a question' asked a witness for defendant, who testified that defendant told him that he was not going to rent his barn basement to him any more for storage purposes, because he lost property by renting it. The question objected to was:

“ Were you surprised that he should make the statement that he would not rent the basement any more because men stole ?”

Conceding that the question was immaterial, the answer was not so prejudicial as to call for a reversal of the case.

The third, fourth, and fifth assignments of error relate to the refusal of the court to permit the defendant to explain his reasons for asking the plaintiff to get his (defendant’s) name off a certain note. The whole subject was immaterial, and there was no error in refusing to permit further inquiry into it.

The sixth and seventh assignments of error relate to questions put to defendant on cross-examination, as to whether he had not testified on a previous trial that there was no difference in the two words “take” and “steal,” so far as he knew, and, “ You don’t claim now he did steal it, do you ?” The answer to the last question was: “I claim I am satisfied he took it.” Defendant was insisting that he did not use the word “ steal,” and we think the questions were properly allowed.

Error is assigned upon the following instruction to the jury:

“There has been some testimony in this case concerning the utterance of slanderous words by the defendant of and concerning the plaintiff at other times and upon other occasions. The plaintiff cannot recover in this case because of the utterance of any other words than those which he alleges were uttered on the 18th day of March, and upon that occasion at the potato warehouse. You have the right, however, to take into consideration any other statements of a like nature that were made upon other occasions and at other times by the defendant of and concerning the plaintiff, if you find any were made, as bearing upon the probability or improbability of the defendant having uttered the words alleged in the declaration upon the 18th day of March, and also as bearing upon the question of the malice of the defendant in uttering' those words.”

We are of the opinion that this assignment is well founded, and that the circuit judge erred in permitting' the jury to consider the subsequent repetitions of the slanderous words as substantive proof of the utterance of those words at the times charged in the declaration. Repetitions of the slanderous charge at other times are only admissible as bearing upon the question of malice. Botsford v. Chase, 108 Mich. 432 (66 N. W. 335); Elilis v. Whitehead, 95 Mich. 105 (54 N. W. 752); 8 Enc. of Evidence, p. 296, D.

The court did not err in refusing "to direct a verdict in. favor of defendant upon the ground that he had acted upon the advice of the prosecuting attorney and magistrate after fully and fairly stating the facts within his knowledge. There was a sharp issue of fact as to whether defendant made a truthful statement of the facts. Among other things, he told the prosecuting attorney that Kelley admitted taking the clover seed. Kelley denied making any such admission, but, on the contrary, testified that he denied taking the clover seed.

The judgment is reversed, and a new trial granted.

Ostrander, Hooker, Moore, and Stone, JJ., concurred.


author: Moore, J.

text:
    H. SCHERER & CO. v. INDEPENDENT STEEL & WIRE CO.
    I. Evidence — Hearsay—Contracts.
    Testimony being introduced that a witness found the goods received to be defective, in an action for breach of contract for the sale of springs, which the purchaser claimed were imperfect, an objection that the defective condition was shown by hearsay testimony concerning complaints of customers is not maintainable.

      2. Statute of Frauds — Modification of Contract — Sales.
    The objections that a contract within the statute of frauds may be modified only by writing, and that the defendant, who was alleged to have furnished defective springs and an insufficient quantity under the contract relied on, was entitled to additional time under the agreement, were held to be met by testimony showing that the defendant acknowledged the defective condition of the materials, advised plaintiff to purchase elsewhere and charge the loss to defendant, and assented to charges so made.
    Error to Wayne; Donovan, J.
    Submitted April 18, 1910.
    (Docket No. 52.)
    Decided July 14, 1910.

      Assumpsit by H. Scherer & Company against the Independent Steel & Wire Company for breach of a contract for the sale of certain springs. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      H. M. & D. B. Duffield, for appellant.

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

The plaintiff sued and recovered a judgment upon a contract for the furnishing of wagon springs. The plaintiff claimed damages on two grounds under the contract set out in the declaration:

(1) Because some of the springs furnished by the defendant company were defective, and had to be replaced by others; and,

(2) Because, the defendant, failing to furnish the number of springs called for by the contract, the plaintiff was thereby compelled to purchase elsewhere, at a price in excess of that fixed by the contract, which excess is the basis of a claim for damages.

The case was tried before a jury. From a judgment in favor of plaintiff, the case is brought here by writ of error.

Defendant claims the theory on which the trial judge permitted the case to be tried was a denial of justice, for the following reasons:

(1) He permitted alleged defects to be proved by the mere statement of a witness referring to complaints from customers, and in no way specifying wherein the springs did not come up to the kind required under the contract.

(2) Because, the principal contract being one which the statute of frauds requires to be in writing, all modifications of such contract must also be in writing.

(3) The contract gave to the defendant additional time within which to perform its obligations under certain conditions which the testimony or the offer of testimony showed did exist. It became, therefore, a matter of considerable variation, and a matter of much moment to the defendant whether it would accept the right to delay given under the contract, or whether it would, at additional expense to itself, waive that right in order that the plaintiff might sooner receive its supplies.

We think each of these contentions was fully met by the testimony offered on the part of the plaintiff.

We will call attention to some of the testimony. Mr. Hoof, who made the contract on the part of the plaintiff with Mr. Hirsch representing the defendant, testified in part as follows:

“ I made up the entire bill of particulars, and access is given to all of our books, and I am familiar with all the facts with reference to all these purchases by the customers, and in each case the difference between the contract price and the market price actually paid.
“Q. Now you may state the total amount you paid as indicated by the bill of particulars in excess of contract price to fill the orders of customers of H. Scherer & Co. of the kind of springs specified in the contract with the defendant under their direction.
“A. The total amount of these charges is $782.29, and from that amount is to be deducted for defective springs $164.07, leaving a balance of $618.22. This indicates the amount charged because of difference in price. In each one of these instances mentioned in this bill of particulars, I notified the Independent Steel & Wire Co. of the sale and purchase. They probably furnished us 2,000 pairs of springs, which did not come up to quality. Apparently when making them the steel was overheated, which took the temper out, and when they were tested the seat spring, would not spring back to the proper position by one or two inches, sometimes three or four. They were poorly constructed. * * *
“Q. I will ask you, did you, with reference to each one of these items in the bill of particulars, have defective springs furnished by the Independent to you on which you are claiming a refund of the money paid by you to the Independent ? Did you call Mr. Hirsch’s attention to it orally or in conversation F
“A. Yes, sir; orally. We called his attention to it, and he authorized them to be returned to their factory, and he promised to credit us on account with that money. Mr. Hirsch promised to pay back the amount which we claimed in the bill of particulars as a credit for defective springs returned. The defective springs in the bill of particulars amount to $336.33. Our total claim is $783.39, deducting from which $336.33, for defective springs, leaves $546.07 as representing the amount we paid in excess of the contract price.”

This witness testified that he saw many of the springs which his company had sold to its customers which proved to be defective and had been returned to the defendant company at Chicago; that he examined and tested them; and that he examined many of them in the presence of Mr. Hirsch or Mr. Guiney, and that the springs were defective and were admitted to be. He further testified:

“ I presented personally to Mr. Hirsch a memorandum or statement of defective springs, and then again would .send him an invoice of every charge. He stated that if the springs were defective he would make the full allowance for them, and he was satisfied they were defective because they had been getting out a bad lot of springs, and the customers were justified in their complaints. We. presented to Mr. Hirsch a full statement of the springs shipped oh their authority from other factories to our customers, and in each instance we made an invoice to the customer. * * * We sent invoices to Mr. Hirsch in every case for the difference in price as fast as the invoices would come from other factories upon these orders and which he had authorized us to purchase outside. We afterwards had a talk with him about the amount of these items, discussing the price we were paying, and he said it was all right and that he could not make them; to go on and fill the orders and charge him with the difference in price. There was no objection whatever made to this. The only item they disputed was the freight on one or two little shipments to California. They said they would allow for the springs but said they did not feel they wanted to allow all the freight. This freight is not involved in this controversy. The total amount of interest due us is $150.33. ■ The principal is $783.39, and the interest $150.33.”

The case was carefully presented to the jury.

Judgment is affirmed.

Ostrander, Hooker, Blair, and Stone, JJ., concurred.


text:
    BARCUS v. WAYNE AUTOMOBILE CO.
    1. Sales — Contracts—Breach—Directing Verdict — Trial.
    Correspondence between the vendor and vendee of automobile gears, showing a contract and an attempt to reduce the number ordered, was properly adjudged, as a matter of law, by the court, to constitute a breach of contract.
    2. Damages — Value—Breach of Contract.
    It was error to hold that, as a matter of law, the plaintiff could recover the cost of the finished gears and profits less the value of the property as mere junk, where the defendant offered evidence tending to show a higher value.
    Error to Wayne; Donovan, J.
    Submitted April 18, 1910.
    (Docket No. 32.)
    Decided July 14, 1910.
    Assumpsit by George Barcus and Albert B. Rowley, copartners as the Gemmer Engine Company, against the Wayne Automobile Company for breach of a contract of sale. A judgment for plaintiffs on a verdict directed by the court is reviewed by defendant on writ of error.
    Reversed.

      Denton Guinness, for appellant.
    Bowen, Douglas & Daman, for appellees.
   Moore, J.

Plaintiffs sued defendant for the breach of a contract referred to later. The j'udge directed a verdict for the plaintiff. The case is brought here by writ of error.

On October 30, 1906, the Wayne Automobile Company ordered from the Gemmer Engine Company, of Wabash, Ind., 500 steering gears at a price of $26 each, deliveries to be made at the times stated in the contract. Three hundred of the gears were delivered and paid for. The unfinished parts of the remaining 200 gears are boxed at the placo of business of the Gemmer Engine Company. On April 11, 1907, the Wayne Automobile Company wrote Brandenburg & Company, the selling agents of plaintiff, stating they wanted the Gemmer Engine Company instructed to reduce the order for steering gears from 500 to 300. Other correspondence followed which it is not necessary to incorporate in this opinion.

Error is assigned upon two propositions:

(1) The court erred in holding as a matter of law that under the testimony in this case the defendant was liable to'plaintiff.

(2) The court erred in refusing to permit the jury to consider and determine the question of the value of the different materials, labor, and parts, as specified in plaintiff’s bill of particulars.

As to the first of these propositions, it may be said that the correspondence which appears in the record, and which was for the construction of the court, clearly indicates a breach of the contract, from which liability would follow. It was not error to so hold.

As to the second proposition: The plaintiffs charged defendant for the cost of labor and material which had entered into the unfinished gears, amounting to $1,200.12. They also charged defendant with anticipated profits amounting to $468, from which amounts was deducted the sum of $141, which plaintiffs say was the value of the unfinished gears, treating them as having no more value than so much junk. The judge accepted the view of plaintiffs, which view defendant insisted was incorrect. The defendant introduced testimony as to values and sought to take the judgment of the jury upon that feature of the case. In the examination of the manager of the plaintiff company appears the following:

“Q. Is it not a fact that the reason they did not take them over is they had an exorbitant price upon them ?
“A. No, I would not say that; the Gemmer Manufacturing Company could not use them, unless they had a customer actually on hand for them.
“Q. Did they not have some talk about making up these gears for the Wayne Company?
‘A. There was some talk of the three companies trying to get together, just as the two companies. They tried to get together.
“Q. There was quite a little correspondence about it?
“A. Some.
“Q. You came up here to Detroit about it, did you not ?
“A. No, I do not believe I did.
“Q. Is not that the reason that you did not take them over, is because you put too high a price upon them ?
“A. No, sir; they would be of no value to the Gemmer Manufacturing Company unless the Wayne Company would take them.
Q. You have already stated that the Wayne Company talked about taking them ?
“A. Yes, sir.
“Q. They wanted them ?
“A. Yes, sir.
“Q. They wanted gears ?
“A. Yes, sir.
“Q. Don’t you know they had to go out and buy other gears ?
“A. Yes, sir.
Q. Do you remember it was on account of that, your high price, that the Gemmer Manufacturing Company would not take them over ?
“A. No, sir; I would not say the Gemmer Manufacturing Company could not use them unless the Wayne Automobile Company specified these parts.”

The question of values and of the damage sustained were questions of fact and should have been submitted to the jury.

Judgment is reversed, and new trial ordered.

Ostrander, Hooker, McAlvay, and Stone, JJ., concurred.


author: Hooker, J.

text:
    ROCK ISLAND PLOW CO. v. SMITH.
    1. Justices of the Peace — Special Appeal — Questions Reviewable.
    It is proper to overrule a special appeal from justice’s court unless the record shows want of jurisdiction.

      2. Compromise and Settlement — Evidence — Best Evidence Rule.
    In an action for goods sold, for which defendants claimed they had made payment by a compromise, oral testimony that certain items were not entered in the plaintiff’s books until after the alleged compromise, is not incompetent under the best evidence rule.
    8. Same — Pleading—Bill of Particulars — Compromise.
    Although no bill of particulars was filed, the claimed defense made, it admissible to prove what was included in the settlement.
    4. Same — Evidence.
    It is held that the evidence warranted the submission to the jury of the question whether or not a plow had been included in the settlement.
    5. Costs — Appeals from Justices’ Courts.
    Costs, on appeal from justice’s court, are discretionary with the circuit judge.
    Error to Allegan; Padgham, J.
    Submitted April 18, 1910.
    (Docket No. 133.)
    Decided July 14, 1910.
    Assumpsit in justice’s court by the Rock Island Plow Company against Jay L. Smith and Guy E. Smith, co-partners as J. L. Smith & Son, upon an account stated. There was judgment for plaintiff, and defendants appealed to the circuit court. A judgment for plaintiff is reviewed by defendants on writ of error.
    Affirmed.

      Clare E. Hoffman (E. J. Anderson, of counsel), for appellants.

      David Stoelcdale & Son (Charles Them, of counsel), for appellee.
   Hooker, J.

The plaintiff sued the defendants, who were dealers in agricultural implements, injustice’s court, upon an account between them. Upon the return day, an adjournment of a week was granted upon the application of the defendants, and upon the adjourned day a judgment was rendered, from which the defendants appealed. Later there was a trial of the merits at circuit, after defendants’ special appeal had been overruled, resulting in a verdict and judgment for the plaintiff, and the defendants have again appealed.

A number of assignments of error are relied on, but the questions are comparatively few. We will not therefore discuss each individual assignment separately, but will endeavor to cover them all in our discussion of the questions.

1. Questions Relating to the Special Appeal. The record shows jurisdiction in the justice and therefore the court properly overruled the special appeal. McGraw v. Sturgeon, 29 Mich. 426; Dalton v. Laudahn, 30 Mich. 349; Deitz v. Groesbeck, 32 Mich. 303; Benjamin v. Dodge, 50 Mich. 41 (14 N. W. 675); Stevens v. Harris, 99 Mich. 230 (58 N. W. 230 ). This disposes of all alleged errors committed by the justice.

2. Errors at Circuit. The cause was tried .upon its merits before a jury in the circuit. The issue was made by a declaration and a plea. No bill of particulars was ever filed in the cause. It is admitted that the parties had a settlement in August, 1906, when a statement was made and signed by both. Among the items claimed by plaintiff are three invoices of goods in the July previous to the settlement. The defendants claimed that they should be considered settled; the articles having been furnished before the settlement. This raised the question whether they were included in the statement and settlement. Plaintiff also claimed pay for some old chains and a Hilo sulky plow, while defendants claimed that they were entitled to credit for them because returned. The items in dispute which were left to the jury were: The July items, $63.41; the sulky plow $27.50; the chains $43.20. The verdict was for $90.91 with interest at 5 pqr cent, from August 14, 1906, amounting to $17.81, making a total of $108.72. It is apparent that the plaintiff did not recover for the chains, and the only questions that we need consider must relate to the July items and the plow.

(a) The July Items. The question before the jury as to these items was simply whether these invoices were included in the statement and settlement of August, 1906. Defendants offered some testimony tending to show that they were. Plaintiff offered testimony to the contrary. Defendants’ brief admits that the only question was whether these goods had been paid for. Van Burén testified that they were not in the statement settled, and gave as a reason that they had not been posted in the ledger when the statement was made. This testimony was objected to, but no ground was stated. It is now claimed not to have been the best evidence. The fact was a proper one to prove, and this may have been the best evidence, for the books themselves might not, and probably would not, have shown the dates when the entries were made. At all events, the alleged error should be disregarded, under repeated decisions, the ground of objection not having been stated.

It is claimed that plaintiff was allowed to prove the various items included in the settlement, and that this was error for the reason that they were not included in the bill of particulars. Counsel admit that there was no bill of particulars, unless an affidavit of items claimed, filed and served with the summons, is to be treated as one. It is enough to say that'the defendant brought this question into the case by claiming a settlement of the July items. That made it proper for plaintiff to prove what was and what was not included in the statement and settlement. The court also held that an earlier settlement than that of August, 1906, was immaterial, and we do not discover anything in the record that indicates error in this.

(6) The Plow. The statement and settlement gave defendant a credit for the plow. In the cross-examination of plaintiff’s witness he testified:

“Smith sent the chains and the plow to the company in December. Smith paid the company everything except that $43.20 for the chains, and the $27.50 for the plow, and those three July items.
“Q. And that is all the dispute is about, isn’t it ?
“A. That is all there is.”

Defendant J. L. Smith testified:

“Q. Now you may state what papers Mr. Van Burén had at that settlement of August 14, 1906.
“A. He had a statement of the entire account for the year, and I looked it over and took him in the office with me. We went over it together, took our-invoices; and they agreed exactly, each item. These invoices here were in the statement; we checked them up. I think you will find the check marks on those originals right there and he said everything was all right, and we settled up in full to date everything, and with the exception of $27.50 that was left out on the plow; that was to be fixed up and then that was to be paid for. We talked that up thoroughly.
“Mr. David Stockdale: I will object to anything said about the plow.
“The Court: Well, that is talk; that would be permissible.
“A. (continuing) Talked in that settlement; he was to fix the plow.
“ The Court: It would be admissible, what was said in that settlement.
“Q. Now just state what he said.
“A. He was to fix the plow and I would send him a check and he said he didn’t want to have any reflections cast on him and I said ‘ I will write a letter to cover that,’ and I said, ‘ Give me your word you will fix it and I will give you my word I will send the check.’
“Mr. John B. Stockdale: I move to strike out the testimony of this witness relative to that plow, because the matter at that time was reduced to writing and signed by Mr. Smith, and that is the part that governs here, as we claim, not what talk he had with Mr. Van Burea; what they got in writing.
“ The Witness: If your honor please, if I tell the conversation—
“Mr. John B. Stockdale (interrupting): Just a moment now.
The Witness (continuing): I won’t deviate a bit, from it.
The Court: I think that any statement that was not in writing would be inadmissible here, changing the terms of the writing. Any outside talk that they had would be contrary not only to the general rule, but would be contrary to their contract, if they ever had a contract of any kind.
“Mr. Hoffman: We save an exception.
Mr. Anderson: I always understood there was a rule that you could show the true consideration for a settlement of a contract.
“ The Court: Well, there was consideration enough for writing what he did write. Well, let it stand.
“On August 14, 1906, the date we settled, Van Burén brought a statement of the account, and to the best of my recollection the three items in July, ’06, which are in dispute were in that statement. I didn’t have the statement in my hand. I do not remember whether he left a copy of this statement of account that he brought with him with me. This statement was a different paper than the settlement of account which he made out while there. He read off the items from this statement of account, and I checked my invoices from his reading.”

Cross-examination:

“ I testified on the former trial that those three items in July, $37.47, $16.44, and $19.50 — I understand there were four items bunched in three — were all settled for in this settlement, everything cleaned up to August 14th. I had ■ my invoices there and they agreed exactly with his statement. Our settlement was very pleasant; just Hilo plow that had not been fixed was the only difficulty.”

Identifies settlement sheet and says a copy of it was left with him.

The evidence shows that the defendants settled and were credited for this plow. His counsel contend that this was upon condition that it should be repaired. Van Burén, testified that he gave him the credit as a disputed item, and took a letter from defendants to plaintiff as follows :

“ Gentlemen: J. D. Van Burén, your representative, called on us today and we congratulate you on having so competent a man and one who seems to be very fair in settlement on both sides, and as we have a Hilo plow that has cost us a good deal of time in trying to get settlement we think that is all we should lose, inasmuch as we are not to blame for this tool not doing business properly. Our customer claims he couldn’t plow even where tall stubble was without clogging; the clogging being caused by lever holding lifting frame. Now, Mr. Van Burén does not feel like taking the liberty in making settlement for this plow to be returned. So I make a proposition to settle as follows: To settle in full, except $27.50 for Hilo plow we have on hand; has been used and could not get a settlement as stated above. We agree if this settlement is not satisfactory the Rock Island Plow Company is to notify us and we will remit check for same. Your will is our pleasure in this matter. We do not cast any shade on Mr. Van Burén, as we believe that he is working for the benefit of the Rock Island Plow Company in every ■ way.”

The reply was:

“ J. L. Smith & Son,
“ Wayland, Mich.
Gentlemen: Referring to the settlement of August 14th of your season’s account, we have decided to accept the settlement with the exception of the conditional credit of $27.50 for a Hilo sulky plow you mention as on hand, and the 24 hay loader chains, $43.20, to return. This credit for hay loader chains has been carried in your account since Mr. Woodward’s settlement of December 21, 1904, which settlement we accepted at the time as a final adjustment between us of the matters in question. We pass the allowance of extending the time on goods sold to January 15th, conditional on prompt remittance for the $27.50, and shipment of the chains or remittance for whatever you are short on returning. As soon as we receive a remittance for the $27.50 and an accounting of the chains — you should see that these are shipped at once, sending us the bill of lading so that we can trace credit to your account — we will enter the settlement on our boobs. Thanking you for your prompt attention and trusting that the coming season will show a handsome increase in the sales of our goods, we remain,
“Yours truly,
“Rock Island Plow Company.”

The question was fairly submitted to the jury, and they found for plaintiff. We do not see that defendant was injured by the exclusion of evidence, the remarks of counsel, or the charge of the court. We cannot interfere with the order of the circuit court in relation to costs.

The judgment is affirmed.

Ostrander, Moore, Blair, and Stone, JJ., concurred.


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    KLATT v. CITY OF DETROIT.
    1. Constitutional Law — Statutes op Limitation.
    The legislature may extend or repeal a statute of limitations or abolish the rule of adverse possession so as to affect cases where the period has not already run, or title been previously acquired.
    2. Limitation op Actions — Statutes—Detroit Charter.
    The provisions of Act No. 383, Local Acts 1899, suspending the effect of statutes of limitations upon debts for taxes assessed in the city of Detroit, does not stop the running of the statute as to the lien upon land occupied adversely as against the city which purchased the same at the tax sale.
    3. Taxation — Statutes op Limitation.
    The liability and lien for the tax assessments fixed by the statutes in force at the time of assessment govern, and are not affected, in the absence of express provision, by subsequent acts abolishing or changing the rule of limitations.

      4. Same — Purchase of Tax Lien — Extinguishment of Obligation.
    Since the payment of a tax extinguishes both lien and liability, a purchase of the land at the tax sale by the city extinguished the lien and the obligation to pay the tax.
    5. Same — Municipal Corporations — Purchase.
    An equitable title vests in the city which purchases land at a tax sale for special assessments, under the charter of the city of Detroit, without the issuance of a tax deed or of a certificate of sale.
    6. Adverse Possession — Limitations—Tax Titles.
    Adverse possession may devest an equitable title unsupported by a tax deed or certificate of sale issued, where the city of Detroit purchases property for unpaid taxes under its charter.
    7. Same — Color of Title.
    Color of title is not necessary in the claimant of land whose property is held adversely, in order to support the adverse possession.
    8. Taxation — Public Officer as Party.
    The Detroit city treasurer is properly made a party to a suit to quiet title against a tax title held by the city, because of which he refused to furnish a certificate of payment of taxes required to entitle a deed to registration.
    9. Same — Detroit Charter.
    He could not be required to determine the validity of a claim by adverse possession.
    Appeal from Wayne; Murfin, J.
    Submitted April 18, 1910.
    (Docket No. 103.)
    Decided July 14, 1910.
    Bill by William F. Klatt against the city of Detroit and Max C. Koch, city treasurer, to quiet title to certain land. From an order overruling a demurrer, defendants appeal.
    Modified and affirmed.

      Jasper C. Gates, for complainant.

      Walter Barlow (P. J. M. Hally, of counsel), for defendants.
   Hooker, J.

Joseph F. Weber being the owner, the premises described in the bill in this cause were subjected to a special assessment of $100, for the opening of a street in the city of Detroit. The special assessment roll was confirmed by the council of the city, on April 3; 1884, and on December 22, 1884, the city treasurer sold the property for the nonpayment of the same, amounting to $104.40. The land was sold to the city for the period of 99 years, and has never been redeemed. On November 23, 1909, the complainant purchased the premises from Weber, taking a deed made by Weber and his wife.

On November 23, 1909, complainant presented his deed to the city treasurer and requested him to indorse thereon his certificate that all city taxes and special assessments upon the premises described in said deed had been paid, as required by section 221 of the city charter, which provides that:

“No mortgage or conveyance of real estate, or contract for the sale of any real estate, shall be received or recorded by the register of deeds of the county of Wayne, unless all city taxes or special assessments on the property described in such mortgage, contract, or conveyance shall have been paid; and it shall be the duty of the city treasurer, upon request, to furnish a certificate that such taxes or assessments have been paid, which certificate shall be filed with said register at the time of the delivery to him of such conveyance, mortgage, or contract for record.” Charter of Detroit (1904), § 221 (Act No. 383, Local Acts 1899).

• The treasurer refused to do so for the reason that this assessment had not been paid. Thereupon complainant filed this bill, alleging the foregoing facts, and further, that from December 22, 1884, the possession of Weber and himself had been actual, continuous, notorious, distinct, exclusive, and hostile, to the time of filing his bill. The bill prayed that the title be quieted, and that the treasurer be required to certify upon the complainant’s deed that said assessment and all other taxes and assessments had been paid, so that he might have his deeds recorded.

The defendants united in a demurrer to the bill, upon the grounds:

1. That under the allegations of the bill there is a valid lien upon the premises for the amount now due and unpaid to the city on said tax sale, and that the same is a lawful and valid debt, still remaining due to the city from complainant’s grantor, under the provision of section 10 of chapter 10, of the charter, Act No. 383, Local Acts 1899, passed May 2, 1899.

2. Because the period of 15 years from the date of said sale did not elapse until after December 22, 1899, and said Act No. 383 provided that, “ all city taxes upon personal property and real estate and special assessments thereon, in addition to being a lien upon the property assessed, shall be and remain a debt against the owner of the property or his estate after his death, until the same are paid, and such debt shall be unaffected by any statute of limitations,” which said act of the legislature went into effect on September 22, 1899, the period of three full months before the expiration of said 15 years from the date of said tax sale, and which said act of the legislature had the effect of stopping the further running of the statute of limitations against said sale of said premises for said special assessment thereon.

3. Because said section 10 requires said treasurer to withhold his certificate until said tax shall have been paid.

4. Because said complainant has not, nor has his grantor, acquired a title to said premises by adverse possession against the title of said city.

This demurrer was overruled by the learned circuit judge and defendants have appealed.

We held in the case of Gray v. City of Detroit, 113 Mich. 659 (71 N. W. 1107), that after purchase by the city of land sold for nonpayment of an assessment, and the expiration of the one year allowed by the ordinance for redemption, the treasurer was not bound to accept a tender of the tax, etc., as no such duty was imposed, distinguishing the case from Hand v. Auditor General, 112 Mich. 597 (71 N. W. 160). The bill filed prayed a cancellation of the sale. In Schneider v. City of Detroit, 135 Mich. 570 (98 N. W. 258), we held that such a sale and purchase by the city vested the title to the premises in the city, and that whatever lien then existed was merged in the title acquired by the purchase. We also held that adverse possession might devest the title thus acquired. This case was followed in Cass Farm Co. v. City of Detroit, 139 Mich. 318 (102 N. W. 848).

We are unable to distinguish the facts in those cases from those in the present case. Counsel for the city contend that the assessment has not been paid and that the charter as amended by section 10, Act No. 383, Local Acts 1899, provides that all special assessments upon real estate, in addition to being a lien upon the property assessed, shall be and remain a debt against the owner of the property, until paid. It appears to be conceded that the act of 1899 is relied upon to establish:

(a) A lien upon the land for unpaid assessment.

(b) Personal liability of the owner.

(c) A suspension of the running of the statute of limitations and adverse possession.

Of these we will say in inverse order:

(c) We have no doubt that the legislature has power to extend or repeal a statute of limitation, or abolish the rule of adverse possession, and that such law will apply to cases where the period has not already run, or title been previously acquired, but' we also think that the provision as to the statute of limitations applies only to “the debt against the owner,” etc., therein provided for, according to the words of the statute.

(b) We hesitate to so construe a statute as to permit it to impose a liability upon a person, or a lien upon land, ex post facto, aside from any question of constitutionality. The liability and lien fixed by the statutes in force when the assessment was made and land sold must be the limit.

(a) Payment extinguishes both lien and liability, and as the city purchased the land, it was an extinguishment of the lien and obligation, as we have already held twice.

Counsel for the appellant say that as no deed was issued to the city, it acquired no title, for the reason that the sale was not completed until the tax deed was executed, and therefore the lien continued, and that a certificate of sale will not suffice to start the statute running, as it does not constitute title or even color of title and no right of action accrued to the city. "We have held in the cases cited that the' purchase by the city gave it a title in which the lien merged, although no deed and possibly no certificate of sale was issued. Color of title is, in some States and some instances, essential to be shown by one who asserts adverse possession; but we do not know of any case holding that color of title in the contestant of the adverse claim is essential to the maintenance of the adverse claim. Indeed, we suppose that counsel do not so contend, and that the point is made as an argument against the extinction of the lien. Under the cases cited, we must hold that the city had an equitable title at "least, and that adverse possession may devest such, as well as a legal title.

The Treasurer a Party. Manifestly the treasurer, acting under section 10, chapter 10, of the charter, supra, could not lawfully make the certificate demanded, unless his records showed, or should have shown, an absence of unpaid taxes, and he could not be expected to determine rights of adverse possession. If, however, his records showed this sale to the city, and an omission to redeem, it may have been sufficient to justify the making of the certificate. It is unnecessary to decide that. He was properly made a party, and will be protected by a final decree, and, should one be made in complainant’s favor, he should, upon presentation and demand, comply with its terms as to entry of payment and issue of certificate.

The decree is affirmed, with the slight modification regarding the treasurer, with costs, and the cause is remanded for further proceedings.

Ostrander, Moore, and Stone, JJ., concurred. Blair, J., concurred in the result.


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    HAZELTON v. HAZELTON.
    1. Divorce — Extreme Cruelty.
    After an examination of the evidence, it is held that the complainant is entitled to a divorce from his wife on the ground of extreme cruelty.
    2. Same — Condonation.
    Continuance of the marriage relation after the wife has been guilty of extreme cruelty, does not furnish a defense on the ground of condonation, unless the offense is not repeated and unless proper subsequent treatment is shown.
    3. Same — Custody of Child — Infant.
    The custody of a child under fourteen years of age will be awarded to the mother, in divorce proceedings, in the absence of a showing of her unfitness to have the child.
    Appeal from Wayne; Hosmer, J.
    Submitted April 19, 1910.
    (Docket No. 44.)
    Decided July 14, 1910.
    Bill by William S. Hazelton against Julia Y. Hazelton for a divorce. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      A. J. Groesbeck, for complainant.
    Graves, Hatch & Wasey, for defendant.
   Hooker, J.

As this cause is for divorce, and is mainly a question of fact, it requires no lengthy discussion, especially as no possible good could follow the spreading of the differences of the parties upon the records of the court or the pages of its reports. The application is by the husband, and an earnest effort to familiarize ourselves with the testimony has induced the conviction that complainant has proved his case. Counsel for defendant say that the proof shows mere incompatibility. We think it shows more. That there was incompatibility is obvious enough, but we think its manifestations on the part of the defendant amounted to extreme cruelty. It is contended that complainant is not entitled to a divorce, because of his con-donation of defendant’s misconduct. We are oftthe opinion that the case is well within the rule of Creyts v. Creyts, 133 Mich. 4 (94 N. W. 383). See, also, Creech v. Creech, 126 Mich. 267 (85 N. W. 726).

It appears that the parties have one child, which is with the mother. There is no evidence of unfitness on the part of the mother to have charge of it, and its custody will be awarded to her until it reaches the age of 14 years, or until the further ordey of the circuit court. No request for alimony or provision for the maintenance of the child has been made. We therefore recommit the case to the circuit court for further proceedings in this regard should application be made hereafter.

A decree in conformity to the above opinion may be taken, granting to complainant a decree of divorce from the bonds of matrimony, and allowing to defendant her expenses of printing, and a solicitor’s fee of $75.

Ostrander, Moore, Blair, and Stone, JJ., concurred.


text:
    WELTON v. McBRIDE.
    Fraudulent Conveyances — Creditor’s Bill — Evidence.
    Upon a question of fact as to the fraudulent character of a debtor’s transfer of land, a decree setting aside the deed in favor of a judgment creditor is held to be warranted.
    Appeal from Chippewa; Steere, J.
    Submitted April 19,1910.
    (Docket No. 71.)
    Decided July 14, 1910.

      Bill by Guy D. Welton, trustee, against Thomas J. McBride and others to set aside a deed. From a decree for complainant, defendants appeal.
    Affirmed.
    Davidson, Hudson & Greene, for complainant.

      Sharpe & Handy, for defendants.
   Moore, J.

This is a bill of complaint filed for the purpose of having a conveyance of real estate made, for an alleged consideration of $5,300, by Thomas McBride and Hannah McBride to Joseph T. Delaney set aside and subjected to the claims of the creditors of the firm of McBride & Bailey, of which last-named firm the defendant Thomas McBride was a member. The defendants John J. McBride and Mamie McBride have no interest in the proceedings except as the occupants of the land described in the conveyance. The trial was had in open court. From a decree in favor of complainant the case is brought here by appeal. The question involved is one almost wholly of fact. It is insisted by appellants that complainants have failed to make a case. All of the defendants answered, but none of them signed the answer personally; they all signed by their attorneys. None of the defendants appeared upon the trial, nor was the deposition of any of them taken and offered in evidence.

The record shows that the firm of McBride & Bailey commenced business in March, 1907, at Sault Ste. Marie, Mr. McBride contributing to the firm $5,000. Mr. Bailey was not able to contribute anything to the capital of the firm, but he was the working and managing member thereof. Mr. McBride reported himself to be worth at this time upwards of $20,000. He was engaged in lumbering operations. He had an interest in a harness business. He had a logging outfit, an interest valued at $2,000 in a land contract, and 180 acres of farming land, which it is claimed was worth upwards of $7,000, and which is the subject of this litigation. In June, 1908, judgments were taken against the firm of McBride & Bailey to the amount of upwards of $6,000. Their assets inventoried about $19,000, and their debts were upwards of $15,000. At the request of McBride & Bailey a stay of execution without bond was granted upon the earlier of the judgments which aggregated about $4,500. Shortly before this stay expired McBride conveyed away all his property, and, the record shows, absented himself from Sault Ste. Marie except upon an occasional Sunday thereafter. The purchasers of the various properties before mentioned, except the grantee in the deed for the 180 acres of land, all appeared and showed they had in fact paid for the several properties they had purchased. The deed from McBride and his wife to Mr. Delaney was drawn by the attorneys for McBride & Bailey at the house of McBride. The grantee named therein was stated to be a resident of Montreal. The record satisfies us that the deed was delivered to the attorneys for McBride & Bailey and by them caused to be recorded, and, after it was recorded, was returned to them. In another proceeding the draughtsman of the deed testified that he did not know anything about the residence of Mr. Delaney.

The record discloses that, prior to the making of the deed, a son of Mr. McBride had been in possession of the farm, and that he continued in possession up to the time of the trial. From the proceeds of the sales made by Mr. McBride it appears that he paid none of the creditors of the firm. We have stated in the most general way what appears in the record. We think there was an abundance of testimony to justify the decree of the court. See Berry v. Whitney, 40 Mich. 65; Lake v. Nolan, 81 Mich. 112 (45 N. W. 376); Ferris v. McQueen, 94 Mich. 367 (54 N. W. 164); Manhard Hardware Company v. Rothschild, 121 Mich. 657 (80 N. W. 707).

The decree is affirmed, with costs.

Ostrander, Hooker, Blair, and Stone, JJ., concurred.


text:
    JARSTFER v. JARSTFER.
    Divorce — Extreme Cruelty.
    A decree for divorce in favor of the wife for extreme cruelty is held to be sustained by the evidence.
    Appeal from Kent; McDonald, J.
    Submitted April 19, 1910.
    (Docket No. 89.)
    Decided July 14, 1910.
    Bill by Agnes Jarstfer against Frank A. Jarstfer for a divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      IS. J. Doyle, for complainant.

      William B. Brown, for defendant.
   Blair, J.

This is a bill for divorce. The parties were married May 22, 1900, the complainant, Agnes, being at that time 29 years, and the defendant 84 years, of age. Soon after the marriage the parties purchased a farm of 66 acres in the township of Ada, Kent county, from complainant’s parents for the sum of $3,000. Complainant paid $1,200 and defendant paid $1,000 of the purchase price, and a mortgage was given back for the balance of $800. The farm was deeded to complainant and defendant, as husband and wife, by the entireties. The parties continued to reside on this farm until their final separation, which occurred J une 28, 1907, at which time complainant removed to the village of Cannonsburg, where she has since resided with her mother. Defendant remained upon and still occupies the farm. Three children were born to the parties, as follows: Francis L., born October 10, 1903; Augustine, born May 18,1906; and the third child, August 17, 1907. This child did not survive its birth, which occurred some two months after the separation.

The original bill of complaint charged defendant with extreme cruelty and prayed a decree for separate maintenance. The foundation of the bill was a charge of extreme cruelty, consisting of a continued course of faultfinding, nagging, aggravating and exasperating conduct on the part of defendant, as well as abusive, profane, and indecent language, and several instances of personal violence, resulting in serious injury to complainant, and in upholding, as against complainant, ill-treatment of her by the parents of defendant. The bill was subsequently amended so as to pray for an absolute divorce. Defendant, in his answer to the bill of complaint, denied in detail every allegation of cruel treatment and claimed to have always treated his wife with the utmost kindness and consideration, and by way of cross-bill claimed the right to a decree for an absolute divorce in his favor because of alleged extreme cruelty of complainant towards him, stating in great detail in his cross-bill alleged instances of her querulous fault-finding and unreasonable abuse and annoyance of him, and numerous occasions when, without just cause or any cause, she slapped him in the face and struck him otherwise, and insisted on having in the house certain of her relatives who were objectionable to him, and whom he had ordered to keep out of his home, and, also, that she called defendant many opprobrious names and charged that his mother was a prostitute, and did all in her power to inflame and anger him.

The testimony in this case was, for the most part, taken in open court before the late Judge Wolcott. Near the close of the case a settlement was proposed in open court by counsel for complainant, and an adjournment was taken for the purpose of arranging such settlement, if possible. No settlement was arranged and, Judge Wolcott having died, the case was resumed before his successor, before whom the complainant and defendant gave some testimony. Except as Judge McDonald had the advantage of listening to a portion of the testimony of the defendant and complainant and of observing their attitude and conduct as witnesses, his consideration of the case, as ours must be, was based upon a reading of the testimony-taken before his predecessor.

The complainant testified that when others were present defendant’s treatment of her was very kind and considerate, but that when they were alone it was quite the contrary. Among the instances of trouble between herself and her husband upon which she relies, and which appear to be the most serious charges against him, we refer briefly to the following: The first trouble she says that she remembers was that one Sunday they went to church, leaving some young fowls at home which had not been taken care of, and she wished to return immediately from church to care for them; that, against her wish, her husband took her to his mother’s house and stayed there longer than necessary; that his mother had had some pictures of defendant enlarged and asked her opinion of them; that she was provoked and wanted to get home and told her mother-in-law she had no choice—

“They were all alike to me, and she was very impudent about it; she says, ‘ You have no choice ? Haven’t you no eyes in your head ?’ And I did not answer her back any more.”

That on the way going home they never spoke at all but when she asked him to get a pail of water he said he would not.

“ * * * He said he wouldn’t do anything for a Goddamned, cursed thing like me.
Q. Did he get the pail of water ?
A. No. * * *
Q. Called you names ?
“A. I believe he did; I am not certain, but I believe he called me a bitch.”

The next trouble to which she refers related to their attendance at a wedding, when, as she claims, her husband kept her waiting for a couple of hours after she had got her wraps on to go home. After starting for home—

“ I said to him: ‘ Frank, I wish when we get ready to go home you would go and not leave me standing around waiting for you so long,’ I said. ‘A person might better be dead than waiting around and not knowing where he was, whether he had gone.’ I don’t know what I said; something like that.
“Q. What did he answer, if anything, when you said that to him ?
“A. He said: e God-damn, old hag, I wish to God you were dead. I have never had a moment’s comfort with you since I married you.’ * * *
“Q. What else was said going home ?
“A. I told him to stop his swearing, and I slapped him with my hand.
Q. What did he say then, or do ?
“A. He slapped me several times going home that night. One time he threw me out of the buggy. - The wedding was about three miles from home.”

The nest trouble involving physical violence occurred when defendant’s mother was there. Complainant claimed that she was getting supper as fast as she could when defendant asked her what was the matter with her, “and after a while he swore he would put me in the poorhouse and swore: ‘By Jesus Christ, Aggie, I will put you in the poorhouse * * *’ or, ‘ I will put somebody in the poorhouse around here.’ Those are the words he used. Then I slapped him with my hand.” He then sprang up and caught hold of her neck and choked her for some time, and his mother loosened his hands from her throat and told defendant that complainant did not want her there and he better take her away.

“I told her if she was the cause of the trouble that the same roof could not be over us both, or some such words as that, and then he choked me again after that — about twice. I am not sure, but I think it was about twice that he choked me.
“Q. After you came out of the bedroom?
“A. Yes. He throwed me against the wall and slammed me down against the wall several times. Two or three times against the wall, against the floor, and the wall. * * * Then he slapped me with all his strength. * *
“Q. Now, when did the next serious trouble arise between you ?
“A. We never got along after that; there was no pretense of getting along.
“Q. No pretense of getting along at all?
“A. Frank was never even a friend to me after that.”

The next charge of physical violence relates to an occasion when defendant put complainant’s niece off the premises. He had before that time ordered the niece to keep off the premises, but on this occasion complainant had called her niece in from the road, to do an errand for her, and defendant, finding she was there, took her by the coat collar and put her off the place without, however, hurting her. After he had put her off the porch, complainant went down and put her arm around her and brought her back, and she claimed that in the struggle which ensued—

“ He seemed to strike out — he did not push or did not strike me — but he seemed to strike out at me, and I must have been going towards him, or I don’t know what I was doing.
“Q. Well, did you fall ?
“A. Yes; I fell.
“Q. On to the ground ?
“A. On my face.
“Q. When you got up were you bleeding ?
“A. Yes; my nose was bleeding.
“Q. What did you do after that ?
“A. I picked up a stone, and said: ‘I ought to hit him,’ told him 1 ought to hit him. Then I tossed the stone over and he caught it. I did not hit him with the stone. He caught the stone in his hand. * * * Later in the night he choked me. We were quarreling and he began calling my—
“Q. Later, when?
“A. The same evening.
“Q. How did that happen ?
“A. He was calling my relations dirty names that I could not stand, and I said I would slap his mouth. Something like that. And he caught my throat and pushed me up against the door and choked me. * * * A few nights after that; after I got my work done, it was late, I had a lot to do; and he — it was some trouble that came about the baby being left in the bed; the baby was sick, vomiting, and I thought that he left the baby in the bed just without any protection at all, just because he see me sitting down and wanted to give me some work to do, and I told him so, and during the quarrel he began about my relatives again, calling them some dirty ñames that I cannot remember what they are, but I know they were not— they were some bad names, and I took my elbow and hit him with it. I had the baby in my arms at the same time. I could not have hurt him. He gave me a blow on the side of the head then, right there on the side of the head (indicating).
“Q. Did it blacken your face or head ?
“A. Blackened my ear, and my head was all sore, and shoulders, from the night before; my whole side there; every bone in me there was sore and bruised.
“Q. When was the nest time after that that he struck you?
“A. He did not strike me after that.
“Q. That was the last ?
“A. That was the last time he struck me.”

The immediate cause of complainant’s leaving defendant was, as she claimed, trouble with his father with reference to the care of the baby, because of whi®h the father, who was past 80 years of age,—

“ Jumped up and run over and struck me on the head and face and tried to push me back into the dining room and gave me quite a beating at that time.
“Q. Make your nose bleed ?
“A. Tes.
“Q. Mark your face?
“A. Yes.
“Q. Bruise and blacken it up considerable?
“A. Yes; bruised me around my shoulder and arms.
“ Q. Strike you on the arms ?
“A. Yes.
“Q. On the body or breast ?
“A. I don’t remember where else he struck me; I know he struck me on the shoulders and arms and breast.
“Q. Blackened both of your eyes ?
"AA. No; I don’t think both of them were blackened.
C‘Q. Blackened one of them ?
“A. Yes, sir.
“Q. Blackened your face?
“A. Yes, sir.
“Q. That was some time in June last ?
“A. Yes; my nose was cut right down there, dented in, and sore for some time afterwards.”

On the morning of that day complainant testified that defendant’s father had struck her and she went down to the field after her husband to come up and take care of her, but when he came up he began to abuse her and call her names and abuse her relatives and call them such names as “old bastards” in the presence of his father, and in nowise took her part or endeavored to protect her.

Defendant contends that complainant was entirely in the wrong in all of these transactions and that he had done nothing whatever to justify her conduct, and the record indicates that, so far as physical violence is concerned, in most of the instances relied upon by complainant, she was guilty of the first act.

A determination of the merits of this case must depend largely upon the credibility of the complainant and the defendant. The circuit judge evidently gave credence in the main to the complainant’s version 'of the facts, since he granted a decree in her favor. While the great mass of the testimony was not given before the circuit judge who rendered the decree, the complainant and defendant were recalled and testified with reference to some of the prominent facts of the case before him, so that he possessed some advantage over us with reference to determining the credibility of the witnesses.

It is difficult to accept the testimony of the defendant as being entirely candid. As disclosed by the record, he was a large, able-bodied, powerful man, able to handle the complainant as he would a child, as the complainant must have known. Under such circumstances, it is inconceivable that complainant would have made the attacks upon him which she admits she did without any occasion therefor whatever, and we are satisfied that, as claimed by the complainant, he goaded her by his allusions to her relatives and friends, and upholding his parents against her, to a condition of rage which she was unable to control. It is clear that in many things the complainant was in the wrong and defendant was within his legal rights, as, for instance, in removing her niece from the premises; but, on the whole, we are inclined to the belief that he did this, not so much because of his desire to protect the morality of his home, as to aggrieve his wife. This is indicated by his final testimony:

I don’t mean to say she was a girl of immoral character or anything of that kind, but I saw her go in the barn with a young man and they were there until morning. This young man lives there in the neighborhood. I didn’t want her to come in there after they tried'to prosecute me for telling what is true about her. I know they tried to prosecute me because the prosecuting attorney wrote me a letter that I should come there.”

The defendant denied that complainant told him that his father had struck her when she came to the field in the morning, but merely that his father was interfering with the baby. We think the version of the complainant is the more probable one, particularly in view of the occurrence of the afternoon, which occa'sioned her leaving, the effects of which were visible and testified to by other witnesses. While we have no doubt that the complainant exaggerates the occurrences to which she testifies, and that she was quick to anger and had become, perhaps, morbidly suspicious, still we are satisfied that, in the main, she was endeavoring to tell the truth and narrated the things which bore against her as well as those that were in her favor. On the other hand, we are satisfied that the defendant was not candid in his statement of the facts, but was endeavoring throughout to suppress the things which might afford some justification for his wife’s conduct, and to exaggerate and enlarge upon the things which were in'his favor, as in the instance of calling the Catholic priest, the parties both belonging to that church, and stating to him beforehand the case against his wife in its harshest features without any mitigation and with a desire to have the priest, influenced by his statement, call upon his wife and advise her to keep her relatives away from the house.

We have, therefore, concluded, upon a review of the whole case, that the circuit judge reached the right conclusion, and his decree is in all things affirmed.

Ostrander, Hooker, Moore, and Stone, JJ., concurred.


author: Stone, J.

text:
    WHEELER v. OCKER & FORD MANUFACTURING CO.
    1. Corporations — Stock and Stockholders — Subscription.
    Subscriptions to capital stock must be for a definite number of shares.
    2. Same — Contracts—Employment.
    A contract to employ a corporate manager to be paid a salary up to a specified sum in cash, the balance in corporate stock, is not a stock subscription or a sale of the stock.
    3. Same — Contracts—Breach.
    Under such contract, the corporation has the option to pay in stock or in cash up to the time payment is due; thereafter the obligation becomes one to pay in cash.
    4. Same — Trust Mortgages — Assignment for Benefit of Creditors.
    Trust mortgages, conveying all the property of a corporation in trust for the benefit of creditors, amount to an assignment for that purpose.
    5. Equity — Trusts—Enforcement.
    The jurisdiction of equity to enforce trusts of real or personal property is well established.

      6. Same — Adequate Remedy at Law.
    The remedy at law is not adequate as between the creditor under a contract to pay for part of his services and trustees for creditors, since the court of law could not compel the trustees to recognize complainant's claim.
    7. Same — Parties.
    The corporation is a proper party defendant to a bill to require the trustees to recognize the creditor’s rights, since it has an interest in the surplus or residue of the trust fund.
    8. Same — Multieariousness.
    A bill in equity is not multifarious for adding to an equitable cause of action a claim in which there is no equity, and which may be treated as surplusage.
    9. Same — Trusts—Administration.
    Where trust mortgages given by a corporation of its business and property do not authorize the trustees to continue the business or hire a manager, they are not authorized to employ the services of a manager for that purpose.
    Appeal from the superior court of Grand Rapids; Stuart, J.
    Submitted April 19, 1910.
    (Docket No. 110.)
    Decided July 14, 1910.
    Bill by Charles E. Wheeler against the Ocker & Ford Manufacturing Company, and Henry G. Dykhouse, John Jungbaecker and Robert H. Sherwood, trustees for the benefit of the creditors of said company, to establish a claim as creditor of the corporation and of the trustees. From a decree sustaining a demurrer to the bill, complainant appeals.
    Reversed.

      Gleland, Heald & Montgomery, for complainant.

      Gleason & Lee and H. A. McNitt, for defendants.
    By his bill of complaint in this cause, the complainant states: That the defendant the Ocker & Ford Manufacturing Company, a corporation duly organized and existing under the laws of this State, having its principal office at the city of Grand Rapids, prior to the 11th day of October, 1906, was desirous of obtaining the services of the complainant as the manager of its plant in said city, and some negotiations were had to that end by the parties; that on October 11, 1906, the board of directors of said company met at the office of its president, for the purpose of entering into a contract with complainant to act as its manager; that complainant then and there offered to act as such manager at a salary of $250 per month; that the board of directors there stated to complainant that the said company could not pay $250 per month in cash, but that it would be willing to pay $150 per month in cash, and $100 per month in stock; that complainant then stated that he would be willing to receive a portion of his salary in stock, but that he was wholly ignorant of the value of the stock, and that the only arrangement under which he would consent to take stock was that he was to receive: First,-% 150 cash per month; second, $100 per month in an amount of stock actually worth $100; that this offer was accepted by said board of directors at said meeting, and that in furtherance of said agreement .the following resolution was unanimously passed by said board of directors:
    “ Resolved that Mr. Charles E. Wheeler be employed by the Ocker & Ford Manufacturing Company as manager for six months from October 15, 1906, at a monthly salary of one hundred fifty dollars cash, and one hundred dollars book value of the stock of the company. Subject to termination of contract at any time upon two weeks’ notice.”
    Complainant accepted said offer of employment, anu on October 15, 1906, entered upon his duties as said manager, and faithfully performed his said duties during the entire six months following; and on April 16, 1907, the board of directors of said company passed the following motion:

      “ That Mr. Wheeler be employed for the next three months at the same terms and conditions of his contract of October 15, 1906.”
    It is further averred that he accepted said offer and continued in the employ of said company during the three months next ensuing under said contract; that during all of the time of such employment the said company paid to complainant $150 in cash each month; but it never paid him stock of the value of $100 per month, nor any stock whatsoever, and that complainant has never received from said company any of the stock which it agreed to pay him, nor any stock; that he is not now and never was a stockholder in the said, company, and that he has never acted as such stockholder, nor exercised any of the rights of such stockholder; that said company has never offered or tendered to complainant stock of the book value of $100 per month, nor any stock whatsoever; that on June 10, 1907, said company was in debt to a large amount, and found that it was unable to pay its said debts at maturity, and that some of its creditors were demanding that they be paid or secured at once; that at that time none of the creditors of said company was secured, except the Michigan Millers’ Mutual Fire Insurance Company, which held, and still holds, a mortgage for $4,500 on some of the real estate of said company; that for the purpose of securing the creditors at that time unsecured, including complainant, said company on said June 10, 1907, executed two certain mortgages to the other defendants herein, as trustees; one on all of the personal property then owned by said company, and one on all of the real estate owned by it, copies of which mortgages are attached to said bill as exhibits; that both mortgages refer to a certain agreement of even date made between said company and said other defendants, as trustees, a copy of which agreement is attached to said bill, and is made a part thereof; that in accordance with said agreement a certain schedule, purporting to contain a list of all the creditors of said company, was made and delivered to said trustees; that the claim of complainant was not listed in said schedule; that said mortgages were duly filed for record on June 13, 1907, and thereupon the said trustees took possession of the property of said company, under said mortgages, and have ever since held possession of the same; that on July 16, 1907, the said trustees, being in possession of the property of said company as aforesaid, entered into an agreement with complainant, by which he was to continue to act as manager of said company, upon the same terms and conditions, at a monthly salary of $250; that in pursuance o£ said contract complainant faithfully performed his duties as said manager under said trustees, from July 16, 1907, until September 1, 1907; that during said time complainant was paid $150 per month, but that the remaining $100 per month was never paid to him, nor tendered to him by said trustees, nor by said company; that said trustees, upon taking possession of said property, proceeded to sell out the property of said company, under the terms of the mortgage, and have paid dividends on certain of the indebtedness secured under the mortgage, the amount of which is unknown to complainant; but he avers that a dividend of 40 per cent, was paid on certain of the indebtedness secured under the mortgage, and that said trustees still have on hand all, or nearly all, of the real estate of said company and some of the personal property, the amount of which is unknown to complainant; that complainant has frequently demanded of said trustees that they recognize complainant’s claim and pay to him the same dividends that they have paid to other creditors secured under the mortgage; but they have refused to recognize the claim of complainant, or to pay him such dividends, or anything on the said claim; that even if complainant obtained a judgment at law against said company, there would be no property upon which an execution could be levied; that unless the said trustees are restrained from paying out the entire amount received from the sale of said property, and are required to keep on hand sufficient to pay a dividend to complainant, he will lose the entire amount of his said claim; that he has no remedy except in a court of equity to determine that his claim is secured under the mortgage, and to require said trustees to recognize his claim as secured thereunder, and to pay him the same dividends thereon that other creditors of said company, under said mortgage, are paid.
    The bill prays that complainant’s claim may be decreed to be secured by the terms of said mortgages, and that said trustees be required to recognize the same, and to pay him the same dividend on his claim, as is paid to the creditors, and for an injunction.
    The trustees demurred to said bill upon the following grounds:
    (1) That complainant by his bill shows that he became a stockholder of said company, and therefore is not entitled to the benefits of the trust deeds.
    (2) That complainant does not show any refusal on the part of said company, or other defendants, to deliver to him certificates of stock earned under said agreement; nor does he allege such breach of contract as makes him a creditor of said company.
    After the filing of this demurrer, complainant amended his bill by alleging, as hereinbefore set forth, that he is not, and never was, a stockholder in said company, and never acted as such. Thereupon said trustees filed a demurrer to said bill as amended, upon the same grounds as stated in the demurrer to the original bill, and:
    (3) That complainant has an adequate remedy at law.
    (4) That said trustees were not parties to, nor interested in, any of the salary contracts made with said company, and that they are improperly joined in this suit with said corporation.
    (5) That said bill seeks relief upon separate contracts, between different parties, having no common interest, and is multifarious.
    The defendant corporation also demurred to said bill, upon substantially the same grounds urged by said trustees, with the additional reason that complainant prayed for no relief against said company, and no cause of action is stated against it.
    The court sustained said demurrers and finally dismissed the bill, and the complainant has appealed.
   Stone, J.

{after stating the facts). Did the Complainant by the Terms of the Contract of Employment Become a Stockholder of the Defendant Corporation ?

The same legal principles govern with regard to the elements of a contract for the sale of stock, as apply in the case of contracts generally. It is a general rule that subscriptions to capital stock must be for a definite number of shares. Peninsular R. Co. v. Duncan, 28 Mich. 130; 1 Cook on Corporations (6th Ed.), § 10; 10 Cyc. pp. 380, 381, 390. In Bostwick v. Young, 118 App. Div. 490 (103 N. Y. Supp. 607), it was held that a railroad construction contract, by which work is paid for by stocks and bonds, is not a stock subscription nor a sale of the stock, but is merely a contract. 1 Cook on Corporations (6th Ed.), § 22.

Should Complainant have Demanded the Stock, or Was it the Duty of the Company to Tender it ?

It should be borne in mind that this is not a case where complainant is seeking to rescind a contract and recover the consideration paid. It is rather a case where he seeks to recover upon the contract; the defendant having failed to tender performance by payment, or offer of stock. "We think the case falls within the general rule that, wherever a contract provides for the payment of a given amount in a commodity, the payor has the option to pay in that commodity, or in cash up to, and including, the time payment is due; but, upon failure to pay in the commodity on that date, the obligation becomes one to pay cash. See discussion of this subject in 2 Mechem on Sales, § 1439, et seq., and authorities there cited, including case of Crowl v. Goodenberger, 112 Mich. 683 (71 N. W. 485). Manifestly, this stock was due complainant at the close of each month, as earned. It has been held that, even in case of subscriptions for stock payable in property or labor, the same are not subject to calls, and a demand for the property or labor must be made by the corporation. But upon failure of the subscriber to furnish the property or labor when due, such subscription becomes payable in cash. Here, complainant had fully performed on his part; but, the company having failed to tender the stock when due, the obligation became one to pay in cash.

Has a Court of Equity Jurisdiction, or Has Complainant an Adequate Remedy at Law ?

The defendant company here sought to dispose of. all of its property, real and personal, to pay all of its creditors. There is authority in this State which holds that such a disposition of property amounts to an assignment for the benefit of creditors. See Charles Maloney & Co. v. Gonhue, 152 Mich. 325 (116 N. W. 436), for a review of the cases. If that is the condition, then by express provision of the statute (section 9549, 3 Comp. Laws) chancery has jurisdiction of all questions and disputes arising under the assignment. Without question, there is here a trust relation between the trustee defendants and a creditor. The complainant asserts by his bill that he is a creditor of the corporation, and that his name should have been included in the list of creditors, but that it has been omitted. He asks that he be decreed to be a creditor, and entitled to the benefits conferred by said mortgages. The jurisdiction of a court of equity to enforce trusts, and to decree the execution of trusts, even as to personalty, is well established. 22 Enc. Pl. & Prac. pp. 9, 14, 15; 1 Pomeroy’s Equity Jurisprudence (3d Ed.), §§ 62, 182; Ledyard’s Appeal, 51 Mich. 623 (17 N. W. 208). Neither do we think that the remedy at law, as pointed out by defendants, is an adequate one. While complainant might recover a money judgment in a suit at law, that court would have no power to compel the trustees to give to complainant the benefit under the mortgages, to which he would be entitled, and he might be compelled to invoke the power of equity to enforce his rights.

Is the Bill Multifarious ?

Complainant seeks to enforce his alleged rights under a contract made with the defendant corporation. The mortgages both recognize that if, after the payment of all debts and expenses, any surplus or residue remains, it shall belong to and be returned to said company. We think that the corporation is therefore a proper party, and the prayer for general relief would enable the court to enter a proper decree against it. Primarily, the object of the bill is to establish complainant’s alleged rights as a creditor of the corporation and to compel the trustees to recognize and deal with such rights. There can be no question, therefore, that the trustees are proper parties. Incidentally, complainant asks that the trustees pay him for services rendered by him to them, in their trust capacity, in the course of administering the trust. There was nothing in the mortgages, nor in the accompanying agreement, either authorizing or permitting the trustees to continue the business, or hire a manager. The alleged claim against the trustees for services under the agreement of July 16, 1907, did not, therefore, arise under the aforesaid instruments, or either of them. While it may be that for these services complainant can apply to the chancery side of the court for relief, independently of this suit, he cannot have relief here. But mere surplusage will not render a bill multifarious, and therefore a bill is not rendered multifarious if, in addition to stating a case for equitable relief, it contains allegations with reference to another matter, but insufficient to entitle complainant to relief with reference thereto. 16 Cyc. p. 241; Hammond v. Michigan State Bank, Walk. Ch. (Mich.) 214; Stone v. Railroad Co., 139 Mich. 265 (102 N. W. 752); 14 Enc. Pl. & Prac. p. 205. Therefore a bill is not multifarious for adding to an equitable cause of action matter in which there is no equity. Id.; 1 Daniel’s Chancery Pl. & Prac. p. 346, and note.

The demurrers should have been overruled.

The decree of the superior court will be reversed, and the case remanded for further proceedings. The defendants should be permitted to answer within 30 days after said cause is remitted to the court below; the case then to proceed under the rules of court. The complainant will recover his costs in this court.

Ostrander, Hooker, Moore, and Blair, JJ., concurred.