text:
    MUSSELMAN v. WRIGHT.
    Corporations — Enforcement of Labor Claims Against Stockholders — Procedure—Statutes—Eepeal by Implication.
    Act No. 141, Pub. Acts 1877 G How. Stat. § 4886 et seq.), prescribing a general method for enforcing the individual liability of the stockholders of insolvent corporations, applicable to all cases except where labor claims are sought to be enforced by the persons performing the labor, was not repealed or in any way abrogated by Act No. 232, Pub. Acts 1885 (3 How. Stat. § 4161a et seq.), section 29 of which makes the stockholders of all corporations organized thereunder individually liable for all labor perfox’med for the corporation, and provides that such liability may be enforced against any stockholder Try action founded upon said statute. Hence, the assignee of a labor claim against a cox-poration ox'gaxxized under the last-mentioned act can only enforce the liability of the stockholders therefor by proceeding in accordance with the act of 1877.
    Error to Kent; Grove, J.
    Submitted November 20, 1895.
    Decided December 24, 1895.

      Assumpsit by Amos P. Musselman against Edwin B. Wright upon certain labor claims against a corporation in which defendant was a stockholder. From a judgment for plaintiff, defendant brings error.
    Reversed.
    The Muskegon Car Company was organized under Act No. 232, Pub. Acts 1885 (3 How. Stat. § 4161a et seq.), doing business and having its principal office in the city and county of Muskegon, and engaged in the manufacture of freight cars, etc. Some 28 laborers in May, 1891, had labor claims against it amounting in all to about ■¡$400, which they assigned to one Payne; and Payne, about March 1, 1894, assigned them to the plaintiff. Plaintiff brought suit in the Muskegon circuit, and in June, 1894, recovered a judgment thereon for $457.31, with costs taxed at $45.05. Execution was duly issued, and returned nulla dona.. Thereupon plaintiff brought this suit against the defendant, who was a stockholder at the time the labor performed, and was such when this suit was brought. The court filed written findings of fact and law, and entered judgment thereon for the plaintiff.

      Smith, Nims, Noyt & Erwin and H. L. Delano, for appellant.

      Sweet, Perltms & Judldns, for appellee.
   Grant, J.

(after stating'the facts). The principal defense is that the plaintiff has mistaken his remedy, and that he should have proceeded under Act No. 141, Pub. Acts 1877 (1 How. Stat. § 4886 et seq.), according to> the rule in Connors v. Carp River Iron Co., 54 Mich. 168. The provisions of that act are fully stated in Connors v. Carp River Iron Co., and need not be here repeated. The plaintiff, on the contrary, insists that Act No. 232, Pub. Acts 1885, in section 29, provides a remedy, and supersedes the law of 1.877, so far as corporations organized under Act No. 232 are concerned. This presents the principal • contention in the case.

The only provisions of Act No. 232 bearing upon this ■ question are found in section 29, which reads as follows:

“The stockholders of all corporations organized or existing under this act shall be individually liable for all labor performed for such corporations, which said liability may be enforced against any stockholder by action founded on this statute, at any time after an execution .shall be returned unsatisfied, in whole or in part, against the corporation, or at any time after an adjudication in bankruptcy against said corporation, and the amount due on such execution shall be prima facie evidence of the amount recoverable, with costs, against any such stockholder; and if any stockholder shall be compelled by any such action to pay the debts of any creditor, or any part thereof, he shall have the right to call upon all the responsible stockholders to contribute their equal part of the sum so paid by him as aforesaid, and may sue them, jointly or severally, or any number of them, and recover in such action the amount due from the stockholder or stockholders so sued.”

This section contains nothing to indicate the method for enforcing this liability. It is a statutory, and not a ■ common-law, liability. We must therefore look to other provisions upon the subject, and, if we can there find a positive and exclusive method, that must be followed. "This was decided in Connors v. Carp River Iron Co., supra, where it was held that an assignee of a labor claim must proceed under Act No. 141, Pub. Acts 1877. It follows-that unless Act No. 232 repeals Act No-. 141, or abrogates, it as to labor claims provided therein, the plaintiff cannot maintain this action. That it is not expressly repealed is clear, because the repealing clause refers to1 two-other acts, and “ all acts amendatory or supplemental ” to them, but contains no general repealing clause. Act No. 141 is a general law applicable to. all corporations,, and designed to prescribe the procedure for enforcing the-liability of stockholders. Repeals by implication are not favored. The rule is well stated in the Connors case as follows: “A. statute can be repealed only by an express provision of a subsequent law, or by necessary implication through a positive repugnancy between the provisions of the latter and former enactment to such an extent that they cannot stand together, or be consistently reconciled.” Applying this rule, and there is no- inconsistency in the provisions of the two acts. On the contrary, they are entirely consistent. Act No-. 232 does no-more than to say that all actions for such claims must be founded on that statute, while-Act No. 141 provides-the method of procedure. We find nothing in the later act to show any intention on the part of the legislature-to supersede this general law, and to justify any other-action than the one provided by it.

It follows that the judgment must be reversed, with-, the costs of both courts, and no new trial ordered.

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


source: Caselaw Access Project

author: Long-, J.

license: Public Domain

text:
    BROWN v. CITY OF SAGINAW.
    1.Municipal Corporations — Public Improvements — Necessity-Compensation to Land-Owner — Conclusiveness op Judgment.
    Where, pursuant to title 15 of the charter of the city of Saginaw (Act No. 402, Local Acts 1893), the necessity for a proposed public improvement, and for taking private property therefor, and the compensation to be paid for the land taken, have been determined by proceedings in the recorder’s court, the judgment so obtained cannot be attacked collaterally by one whose land was assessed to defray the cost of the improvement, but who was not a necessary party to the proceeding.
    2.Same — Parties—Appeal.
    The provision of section 16 of said title, that any person whose property is taken or assessed may appeal from such judgment, cannot be construed as giving the right of appeal to one whose land is assessed but not taken for the improvement, thereby implying that he is a necessary party to the proceeding, it being apparent that the words “or assessed” were retained in such section by mere inadvertence upon the amendment of the original charter (Act No. 455, Local Acte 1889), which provided that the common council should fix the assessment district when it passed the resolution declaring the necessity for the improvement, that the proceedings should be instituted against those whose lands were to be assessed, as well as against the owners of property proposed to be taken, and that the assessment of benefits should be made by the jury awarding the damages, all of which provisions were changed by the amendment of 1893.
    3.Same — Assessment op Benefits.
    It is no objection to an assessment of benefits for a public improvement that the members of the council which determined the assessment district were taxpayers within the city, and were therefore interested.
    4. Same.
    The apportionment of benefits by the assessing officers is not subject to attack after the roll has been confirmed by the council pursuant to the charter.
    5. Same.
    Where it is left to the council to fix an assessment district, its judgment as to the lands benefited is conclusive.

      6. Same — Appeal to Council — Sueeioiency oe Hearing.
    The objections made to the confirmation of a special assessment roll having been read before the council, the matter was referred to a committee, to afford the parties an opportunity to be heard. After hearing the parties, the committee reported in favor of the confirmation of the roll, and it was thereupon confirmed by the council. Reid, that the action of the committee, when adopted, became the action of the council.
    Appeal from Saginaw; Wilber, J.
    Submitted November 22, 1895.
    Decided December 24, 1895.
    Bill by Addison T. Brown and others against the city of Saginaw to restrain the collection of a special assessment. From a decree for complainants, defendant appeals.
    Reversed.

      'Trash & Smith, for complainants.

      William G. Gage, for defendant.
   Long-, J.

This bill was filed by Addison T. Brown and about 90 others to set aside a special assessment levied by the defendant upon their lands to pay the awards of damages and the expenses of opening Ash street in what is called the “Western Taxing District” of the city of Saginaw. The lands are all situate in that district, but none of them were taken for the opening of the street. The objections made to the assessment, among others, are:

(1) Because there was no such oath administered to the jury as required by the charter, before they began the discharge of their duties.
(2) Because the complainants were not made parties to the original proceedings, and had no opportunity to take part therein; nor were they informed in any manner that they were to be assessed for said street opening in season to have appealed from the confirmation of the verdict.
(3) Because no district was fixed upon which the tax was to be spread before the proceedings in the recorder’s court were had.
(4) Because the common council, which decided that the total expense should be assessed upon the property in the vicinity of said opened street, was not a disinterested body, for the reason that, if the members of the council owned any property in the city, it was for the interest of said members to make the order for local assessment to protect their property from taxation.
(5) Because the council or board of public works, 'in ordering and making said tax roll, did not limit the amount assessed to the amount each parcel of land would be benefited by the opening of the street.
(6) Because said roll had been twice set aside as unjust and inequitable, as, by the charter of the city, the council had a right to do; and yet a council, half or more of whom had been elected since said roll was set aside, without reconsidering the former action of said council, assumed to confirm and approve a roll that had been legally annulled.
(7) Because there is no reason why complainants’ lands should be assessed that does not equally apply to any other real estate in the city, as complainants’ lands do not front on the opened street.
(8) Because complainants have had no opportunity to present the reasons they had for objecting to- and appealing from said assessment to the council, as the charter provides, as, the last time they were notified to appear before the council to object to the roll, they were not heard, but were sent before a committee of the council, and were not present when said committee reported, and had no opportunity to be heard upon said report; and that the council cannot thus delegate its duties to a committee.

1. We think the first point is not well taken, as the proceedings to make the assessment were based upon the judgment obtained in the recorder’s court, directing the opening of the street. The statute provides two different proceedings, — the one by which the street is to be opened, and the other for the assessment of the property benefited by the opening, for the benefits conferred. The first determines the question of necessity and compensation to those interested, and is not open to collateral attack by parties who are not necessary parties to that proceeding. Borgman v. City of Detroit, 102 Mich. 261; Scotten v. City of Detroit, 106 Mich. 564.

2 and 3. It is contended, however, that the complainants were necessary parties. Section 3, tit. 15, of the charter provides that the petition filed in the recorder’s court when private property is to be taken shall describe the lots, tracts, and parcels of the property proposed to be taken, and shall set forth the names of the owners of such lots, etc. By section 5 of that title, it is apparent that the summons from the recorder’s court need be served only upon the owners of property proposed to be taken. Local Acts' 1893, A.ct No. 402. The only provision of the charter which would in the least favor the view of the complainants is section 16 of the same title, which provides that “any person whose property may be taken or assessed considering himself aggrieved may appeal from the judgment of the court,” etc. The act of 1893 was an amendment to the charter of 1889, and the object of the amendment was to provide that the assessment of benefits should be made by the board of public works, instead of being made by the jury that assessed the damages, as was the practice prior to that amendment. The charter, prior to the amendment, provided that the council should fix the assessing district when it passed the resolution declaring the necessity. Local Acts 1889, p. 958, Act No. 455. This act made it the duty of the city attorney to proceed in the recorder’s court against the owners of lots proposed to be taken, and also against those whose lands were to be assessed. The provision requiring the council to fix the assessing district was stricken out of the charter by the amendment of 1893; so that, as it now stands, the charter cannot be construed as giving the parties thereafter assessed for benefits the right to appeal from the finding of the jury in the recorder’s court; and it is apparent that the words, “or assessed,” contained in section 16 of that title, were left in by mere inadvertence.

This disposes of the first, second, and third objections raised.

4. The objection that the common council was an interested body, because the members were taxpayers within the city, has no force.

5. In answer to the fifth objection, it may be said that section 19, tit. 15, of the charter provides that, after the confirmation of the verdict of the jury, the common council, if it believes that a portion of the city in the vicinity of the proposed improvement will be benefited by such improvement, may, by an entry in its minutes, determine that the whole or any just proportion of the compensation awarded by the jury shall be assessed upon the owners or occupants of real estate deemed to be thus benefited. This is to be levied and collected in the same manner as the expenses of other public improvements are, under title 6 of the charter. This title provides for the assessment to be made by the board of public works. The board, after the assessment is made, reports the same to the common council, under the provisions of section 19 of title 15; and, when the roll is confirmed by the council, it is final and conclusive.

6. It appears that the council had set aside two assess-' ment rolls made for this street opening, and the board of public works made a new one. We think, from an examination of the rolls, it cannot be said to be the same roll as the two former ones rejected.

7. It may be said, in .regard to this objection, that the •charter leaves it to the council to fix an assessment district, and its judgment as to the lands benefited is conclusive.

8. In answer to the last proposition, it appears that, before the confirmation of the roll, the required notice was published, and the complainants appeared before the council, and made their objections. These objections were read to the council. A motion was then made to confirm the roll, but an amendment was adopted referring the matter to the committee on street openings and the city attorney, to afford the parties an opportunity to be heard. They were heard before the committee, who finally reported in favor of the confirmation of the roll, and the roll was confirmed by the council. The objection that the action of the committee was not the action of the board cannot be sustained. It was held in Boyce v. Sebring, 66 Mich. 210, that where a committee equalized the several assessment rolls of the county, and made a report of its action to the board of supervisors, which was adopted, this made the action of the committee the action of the board, and was sufficient, under that statute. The complainants having taken their appeal from the assessment to the common council, and it being there heard, its decision is conclusive and final. Section 19 of title 15 makes the action of the council in such cases final and conclusive. See Soller v. Township of Brown, 67 Mich. 422.

The court below held the assessments void, and entered a decree restraining their collection, in accordance with the prayer of the bill. That decree must be reversed, and a decree entered here dismissing the bill, with costs of both courts.

The other Justices concurred.


author: McGrath, O. J.

text:
    PETRIE v. TORRENT.
    1. Accounting — Stipulation—-Release and Discharge.
    Where, pending an accounting, the parties enter into a stipulation providing that, whenever the complainant shall be relieved from liability upon certain outstanding obligations, he will receipt to the defendant for a given amount, to be applied upon any sum that may be found due from the defendant upon such accounting, and, pursuant to such stipulation, the release is secured, the receipt given, and the application made, the complainant cannot, upon a second accounting in the same suit, compel the defendant to account for any part of the amount so receipted for and credited, merely because the latter obtained such release for less than the face value of the obligations.
    2. Same — Appeal—Costs.
    An additional allowance for expenses will be made to the complainant in a suit for an accounting, where it appears that, after his right to an accounting had been judicially determined, the defendant, for the purpose of harassing the complainant, and depriving him of his just share of the fund in controversy, instituted various other suits, compelling complainant, in order to protect his interests, to make large expenditures, which would otherwise have been wholly unnecessary.
    Appeal from Muskegon; Russell, J.
    Submitted December 3, 1895.
    Decided December 24, 1895.
    Bill by Albert PL Petrie against John Torrent for an accounting. Both parties appeal.
    Decree modified and affirmed.

      Bunker & Carpenter (Kingsley & Kleinhans, of counsel), for complainant.

      Smith, Kims, Hoyt & Frwin (FitzGerald & Barry and Francis A. Staee, of Counsel), for defendant.
   McGrath, O. J.

This is an appeal from the second accounting under the decree in 88 Mick. 43. Tke first accounting was before us in 100 Mick. 117. Tkree questions are involved: (1) Tke rigkt of defendant to an allowance for bookkeepers’ services in connection witk tke carrying on of tke business; (2) tke rigkt of complainant to a rebate from tke amount of $55,000 ordered credited to defendant upon tke last accounting; and (3) tke rigkt of complainant to an allowance for solicitors’ fees in connection witk tke litigation to wkick complainant kas been subjected.

1. Tke court allowed defendant $3,236 for bookkeepers’ services for tke years 1892, 1893, and 1894. We think that, under the facts disclosed by the record, this allowance should be reduced to $1,200.

2. On March 15, 1892, pending the first accounting, a stipulation was entered into providing—

“That when the above-named complainant and the Petrie Lumber Company are wholly and completely relieved from liability on account of any and all commercial paper, of every kind and description, upon which they, or either of them, have become liable for the accommodation of S. R. Howell or S. R. Howell & Company, ■and also any and all paper on which they have become liable, of which S. R. Howell or S. R. Howell & Company is the maker or acceptor, the said Albert H. Petrie will, when so requested to do. by S. R. Howell, sign a receipt to the defendant in this cause for the sum of $55,00.0, and said sum shall be applied upon any sum that shall be found to be owing by the said defendant in the .accounting to be had and taken in this cause; but said .application shall be subject to the assignment heretofore made by said complainant to Bunker & Carpenter of an interest of $30,000 in the claim of complainant against the defeñdant in this cause, to the extent of $25,000 ■thereof.”

In May, 1892, complainant executed the following receipt:

“Received of John Torrent, the above-named defendant, the sum of $55,000, to be credited on the decree to be made on the accounting in this cause; said credit to be made subject to the assignment heretofore made by me to Bunker & Carpenter of an interest of $30,000 in my claim in this cause, to the extent of $25,000 thereof.”

No objection to this item was. made upon the last accounting, and it was ordered credited in the decree thereupon. By the stipulation, defendant did not undertake to pay any given claim, or any given! amount; but complainant did agree that, in consideration of his release from all liability, he would receipt for a given sum. He was so released, and he did so receipt. He consented ■to the appropriation of a given sum, and named the consideration, which he has received. No misrepresentations were made respecting the volume of his liability, and the only claim made is that defendant has obtained that release at less than its face value. The court was light in refusing to compel defendant to account for any part of the $55,000.

3. A claim was made at the last accounting for ¡solicitors’ fees, and the question was reserved. This controversy arose in 1886. The appeal in the principal case was here in 88 Mich. 43. The first accounting was finally "disposed of in 100 Mich. 117. Other suits have grown •out of the transaction. Stever v. Torrent, 99 Mich. 68; Petrie v. Badenoch, 102 Mich. 45. Others have been instituted which have not reached this court. It clearly •appears that, since the determination of the principal ■suit, there has been a settled determination on the part of the defendant to harass the complainant, and to deprive him of his just share of the profits of this transaction; that the other suits referred to were instituted by ■defendant with that end in view; and that complainant has been compelled, in order to protect the fund and his •own interests against the attempts of the defendant to absorb that fund, to incur large expenditures, which would have been wholly unnecessary but for the conduct of the defendant.

The decree will be modified as above suggested, with "•costs to complainant, to be taxed, including an allowance to complainant of $3,000 as expenses. Otherwise, the decree is affirmed.

The other Justices concurred.


author: Grant, J.

text:
    LITTLE v. WILLIAMS.
    1. Appeal — Harmless Error.
    The exclusion of cumulative evidence on an uncontradicted point is not prejudicial error.
    2. Husband and Wipe — FrAud—Evidence.
    In trover by a wife against a mortgagee of the husband for property which she claimed to have owned, but which she had permitted the husband to use in his business, the husband, who was sworn for the plaintiff, having admitted on cross-examination that he told a former partner that the property belonged to him, was further questioned regarding his motive in. deceiving his partner. Held, that the evidence was properly excluded as immaterial.
    3. Trial — Remarks op Counsel.
    A judgment will not be reversed because of the improper remarks of counsel for the prevailing party, where such remarks were apparently made in reply to similar remarks by-appellant’s counsel.
    4. Appeal — Questions not Raised Below.
    A failure to charge the jury upon a point as to which no instruction was requested, and to which the attention of the court was not called, cannot be urged upon appeal as ground for a. reversal.
    Error to Muskegon; Russell, J.
    Submitted December 5. 1895.
    Decided December 24, 1895.
    Trover by Amelia A. Little against John Williams. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      F. W. Go ok, for appellant.

      S. H. GUnk, for appellee.
   Grant, J.

Plaintiff brought an action of trover for the value of certain saloon fixtures, and recovered verdict and judgment for $308. Errors are assigned upon the exclusion of testimony and the charge of the court. The appellee has filed no brief. Plaintiff and her husband resided in Muskegon. April 11, 1891, her husband purchased this property in Chicago, in his own name. It was shipped to him in his own name. He started and kept a saloon with it, at one time taking in a partner, to whom he represented this property as his own. Afterwards he bought out the interest of his partner, again sold it as his own, and mortgaged it to- the defendant. Plaintiff claims that she furnished the money to her husband with the agreement that the property .should be hers. The theory of the defense was (1) that there was no such transaction; and (2) that, if there was, she was estopped to assert title to the property.

'We find no evidence of conversion. Williams had never bought the property, never-had it in his possession, and had taken no steps to foreclose the mortgage. The defendant, however, filed no requests to charge; and it appears to have gone to the jury, without objection, upon the assumption that there was such evidence. We are therefore only concerned with the errors alleged.

1. Plaintiff and her husband lived over the saloon, and there was a stairway leading from the saloon to their rooms above. One Langkawel, a brother of plaintiff, was at one time a partner with Mr. Little in the saloon business, and had sold out to Little. He was examined ■as to the conduct and management of the business, and his dealings with Mr. Little. He was asked if Mr. Little made a proposition to sell to him everything they had there, including the fixtures. This and other similar questions were excluded. Mr. Little, a witness for the plaintiff, had admitted that he told Langkawel that he ■owned the fixtures. It was established beyond controversy that Mr. Little dealt with this property as his own. This witness testified that he had never heard the plaintiff make any claim to these fixtures, and that Mr. Little put them in as his part of the assets of the partnership. We think, therefore, that the exclusion of this testimony was not prejudicial.

2. Mr. Little admitted that he told Langkawel that he-owned the fixtures. He was asked on cross-examination, as to his motive for deceiving Langkawel, and the question was excluded. While there are many earmarks of fraud in this alleged transaction between plaintiff and her husband, and a broad latitude is allowed in such, cases in the examination of witnesses, and especially the parties to it, we do not see how the motive for deceiving his partner would have aided the defendant’s case. He admitted the falsehood and the deceit. His motive was immaterial, and could have thrown no light upon the issue.

3. Complaint is made that plaintiff’s counsel, in his-closing argument, made unjustifiable and prejudicial remarks. They seem to have been made in reply to similar remarks in the argument of defendant’s counsel. We see no reason for reversing the case on this ground.

4. Complaint is made that the court, in its instructions, did not say anything to the jury upon the question of estoppel. Defendant’s counsel did not request itr neither did he call the attention of the court to it. He cannot, therefore, now raise the question.

The judgment is affirmed.

The other Justices concurred.


author: Long, J.

text:
    CARY v. EVERETT.
    1. Attachment — Sufficiency of Service — Jurisdiction.
    Under the statute relating to proceedings by attachment in justice’s court (2 How. Stat. § 6840 et seq.), the officer who seizes and inventories the property must complete the execution of the writ by making personal or substituted service upon the defendant, and a return of such service by another officer, to whom the writ was delivered, confers no jurisdiction upon the-justice to proceed to judgment.
    2. Trover — By Whom Maintainable — Rights of Mortgagee.
    Mere possession under a void execution sale will not support an action of trover against a mortgagee who has seized the property under the insecurity clause in his mortgage, notwithstanding he proceeds to a sale before the maturity of the mortgage debt.
    Error to Cass; O’Hara, J.
    Submitted December 5, 1895.
    Decided December 24, 1895.
    Trover by Abram Cary and another against Omer E. Everett and another. From a judgment for plaintiffs, defendants bring error.
    Eeversed.

      Stafford Tryon, for appellants.

      Charles 13. Sweet, for appellees.
   Long, J.

This is an action of trover for the recovery of the value of 400 bushels of wheat. Defendants pleaded the general issue. It appears that the plaintiffs, on September 16, 1890, commenced suit in attachment before a justice of the peace against Lewis J. Hadden, and on the same day attached 20 acres of wheat that had been sown by Hadden on his wife’s farm, in Wayne township, Casscounty, and upon which Hadden resided. No personal service of the attachment was had upon the defendant, but the officer having the Avrit filed a notice in the town clerk’s office that he had attached the wheat on that day, and described it as being on Mrs. Hadden’s farm, and as the wheat that was then sown in a field of 33 acres. The writ of attachment was dated September 16, 1890, and was put into the hands of the deputy sheriff, Marshall P. Merwin, on the day of its issue, and he made return of the attachment as follows:

“ By virtue of the within attachment, I, Marshall P. Merwin, on the 16th day of September, 1890, seized the goods and chattels of the defendant mentioned in the inventory of which the annexed is a copy.”

This was signed by Mr. Merwin, as deputy sheriff, but not dated.

The inventory annexed to his return states:

“ Copy of inventory of the goods and chattels this day seized by me by virtue of the annexed attachment: All the right, title,' and interest of the defendant named in said writ of attachment in and to the wheat now sown and growing on about 20 acres of ground on the farm ■of Mrs. Lewis J. Hadden, in the township of Wayne, Cass county, Michigan, being about 20 acres of wheat, more or less.
“Dated September 10, 1890.
[Signed] “Marshall P. Merwin,
“ Deputy Sheriff.”

It appears that a constable also made a return upon the writ, as follow's:

“ I hereby certify that I made diligent search and inquiry during all of the time in which personal service could be made, and am unable to find said Lewis J. Had-den within said county, and therefore, on the 18th day of September, 1890, because the said defendant could not be found, I left a copy of the within attachment and the said inventory, duly certified by me, at the last place of residence of said defendant in the same county of Cass, with Mrs. Lewis J. Hadden, the wife of defendant, — a person of suitable age and discretion.
[Signed] “Stephen Secor,
“ Constable.”

This return is not dated.

Judgment was thereafter entered in this attachment proceeding, and on July 6, 1891, the wheat was levied upon, and sold in the shock, under such execution, to the plaintiffs, for the sum of $100. At the sale 75 or 80 bushels were set off to the defendant, Hadden, as exempt.

Prior to this, and on September 18, 1890, — being two days after the attachment proceedings were commenced, and after the notice of levy had been filed in the town •clerk’s office, — Lewis J. Hadden gave to the defendants a chattel mortgage upon this wheat, with other wheat, which mortgage was duly filed in the township clerk’s office of Wayne township. The defendants, at the time they took their mortgage, were ignorant of this attachment proceeding, and had no notice that the wheat had been attached, except such notice as the record in the town clerk’s office might give. They afterwards took possession of the wheat, and harvested, threshed, and sold it. The plaintiffs claim title to the wheat in question under the execution sale. The record does not show that the chattel mortgage was ever foreclosed by the defendants. It was not due at the time they took possession of the wheat under it; the wheat being taken in July, and the mortgage not being due until September, 1891. The plaintiffs purchased in under the execution sale July 6, 1891, and before the defendants went in under their chattel mortgage.

Plaintiffs’ contention is that, having purchased the wheat in at the execution sale on July 6th, they were in possession, and could hold the same against any person who had no right of possession, and that the defendants took possession under their mortgage wrongfully, before it was due, and sold the propertj- without foreclosing it; the mortgage not giving them the right of possession until after condition broken. On the other hand, it is contended by defendants’ counsel that the justice had no jurisdiction to hear and determine the validity of the plaintiffs’ claim in the attachment suit, because the record does not show that there was a legal service of the writ upon Lewis J. Hadden, either actual or substituted. Defendants also contended that the wheat was sown on the land of Mrs. Lewis J. Hadden, and belonged to her, subject, however, to their chattel mortgage, which was given with her knowledge and consent. The court submitted the last question to the jury, and they found the title of the wheat in Mr. Hadden, and rendered their verdict in favor of the plaintiffs for $185. The court, in its charge, stated to the jury that the attachment proceedings were regular, and the right of the plaintiffs to the wheat was superior to that of the defendants, and, if the wheat belonged to Mr. Hadden, they must find a verdict for the plaintiffs.

In this we think the court was in error. The defendants were in actual possession under a valid chattel mortgage, and therefore in a position to contest the plaintiffs’ title. Plaintiffs’ title depended upon the validity of their judgment. The case was commenced by writ' of attachment, and we think there was no such service of the writ as gave the justice jurisdiction to proceed with that trial. The deputy sheriff, in whose hands the writ of attachment was placed, returns that he attached the property, made an inventory, and filed a copy of the writ and inventory in the office of the town clerk. This ended his service. He made no effort to make service on the defendant named in the writ, but apparently turned the process over to a constable to execute, who- took it, and says he made search and inquiry during all the time personal service could be made, and then certified the attachment and inventory, and left them at defendant’s last place of residence. Section 6840, 2 How. Stat., provides that the constable serving such attachment shall execute the same at least six days before the return day thereof, by seizing so much of the goods and chattels of the defendant within his county as 'shall be sufficient to satisfy the demand and costs, and making an inventory thereof, and serving a copy of such attachment and inventory upon the defendant, if he can be found within the county. By the next section it is provided that, if the defendant cannot be found within the county, the constable shall leave a copy of the attachment and inventory, certified by him, at the last place of residence of the defendant, if there be any such place within the county, etc.

It is evident that, under these and succeeding sections of the statute, the officer who- attaches and seizes the property must fully execute the writ. He has no authority to turn the further execution of the writ over to another officer. When properly is attached, the officer takes it into his possession, but it shall not be removed if a bond is given; or, if a third person claims the property, he may also' give bond to prevent removal; and this bond is to the officer wdio makes the seizure. There is no provision of the statute authorizing another officer to serve a copy of the writ and inventory, or to make a return of the same, so as to give the justice jurisdiction to proceed. The return of the officer executing the writ confers the jurisdiction upon the justice to proceed further in the case, and it depends upon the facts returned whether jurisdiction is conferred. Certain facts must be shown by the return, and these facts must be made to appear by the officer to whom is intrusted the execution of the writ. The execution of the writ cannot be intrusted partly to one officer, and the further execution to another.

Proceedings by attachment are entirely statutory in their inception, and we must look to the statute to ascertain their requisites. Such proceedings have no foundation outside of statutes, and must therefore, in all things essential, conform to them. Langtry v. Wayne Circuit Judges, 68 Mich. 452. The statute requires a certified copy of the attachment and inventory to be left at the last place of residence of the defendant; that is, a copy certified by the officer making the inventory. No other officer could certify it, and such a certificate would not be within the meaning of the statute. The deputy sheriff made the seizure and the inventory, and he could not delegate the authority to certify such attachment and inventory to a constable. Fletcher v. Morrell, 78 Mich. 176. The deputy sheriff did not hold the process in his hands, as required by the statute, during the full time in which such personal service could be made, and he does not certify that he made any search or inquiry to make the personal service. The constable’s certificate has no more force, and is entitled to no more credit, than that of a private person.

We are of the opinion that the justice had no jurisdiction to proceed to judgment in the case, and the plaintiffs, for that reason, failed to establish title to the property.

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

The other Justices concurred.


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    WRIGHT v. KING.
    Appeal — Effect of — Execution—Levy on Property of Sureties on Appeal Bond.
    Upon the filing of a bond under 3 How. Stat. § 7621c et seq., in stay of execution, and the issuance of a writ of error, the circuit court Joses jurisdiction, and has no power to make any further order in the cause until the same is properly transmitted to that court from the Supreme Court. In such case, therefore, an execution does not become “legally issuable” out of the circuit court, within the meaning of 2 How. Stat. § 7029, which forbids a levy upon the property of a surety on an appeal bond unless the execution is issued within thirty days from the time when it shall be legally issuable, until the filing of a remittitur from the appellate court.
    Error to Jackson; Peck, J.
    Submitted December 3, 1895.
    Decided December 24, 1895.

      Assumpsit by Zenas R. Wright against Theodore A. King and others upon a sheriff’s bond. From a judgment for defendants, plaintiff brings error.
    Reversed.
    D. P. Sagendorph, for appellant.

      Richard Price, for appellees.
   Long, J.

This action was brought on the official bond of Mark EL Ray, former sheriff of Jackson county, who died before tbe commencement of this suit. Tbe defendants'were Ms bondsmen. It appears that on August 25, 1888, the plaintiff in the present suit obtained judgment before a justice of the peace against one Will Beach. That cause was appealed to the circuit court, and on August 19, 1889, judgment was entered against Beach, and John HcDevitt and Edward C. Morrissey, his sureties on the appeal bond. On September 9th, the defendant Beach commenced proceedings to remove that case to this court, giving a bond for stay of execution. October 10, 1890, that judgment was affirmed in this court. See 82 Mich. 169. A motion for rehearing was made in the cause on October 15th, and denied November 12th. On November 25th a remittitur was issued from this court, and filed in the circuit; and on the 26th of November an execution was issued, returnable December 18th, commanding the sheriff to make and collect the amount therein named from the goods, chattels, lands, and tenements of Will Beach, John McDevitt, and Edward C. Morrissey, defendants. The sheriff demanded a bond of indemnity from the plaintiff in the suit, which was given. Thereafter he returned the execution, without collecting the same, and returned the plaintiff’s bond of indemnity, and took one from the defendants in that suit, to save Mm harmless by reason of not making" the levy under the execution. The return is indorsed as follows:

“ I do hereby return that the within named Will Beach has no goods or chattels, lands or tenements, or real estate, in my bailiwick, whereof I can cause to be made the damages and costs within mentioned, or any part thereof; and I do further return that the sureties within named are in possession of property liable to execution, the ownersMp of which they acknowledge.”

As this return was originally written, the following appears after the word “ acknowledge:”

“ I did not levy on said property of said sureties for the reason that the within execution was not issued within 30 days after the same was legally issuable.”

The return is dated December 22, 1890, and is signed by Mark H. Ray, sheriff.

The cause was heard before the court without a jury, and the court says:

“ Defendants deny that it was the duty of the sheriff to levy the execution upon the property of the sureties, and insist that it could not lawfully be levied upon their property, for the reason that they were sureties upon the appeal bond of defendant Beach in that suit, and the execution was not issued within 30 days from the time it was legally issuable. This contention presents the only question which has been argued before me.”

The court below found that the execution was not issued within 30 days from the time it was legally issuable, and therefore could not lawfully be levied upon the property of the sureties on the appeal bond, and that the sheriff was justified in refusing to make the levy. Judgment was entered in favor of the defendants.

2 How. Stat. § 7029, provides in such cases that “no execution issued on a judgment so entered on motion against appellant and surety shall be levied on the property of the surety unless such execution, if issued in the circuit court, is issued within 30 days, or, if issued in the Supreme Court, within 90 days, from the time when the .same shall be legally issuable,” etc. The court below was of the opinion that the 30 days did not begin to run until the cause was decided in this court, but that, on the ■day the case was so decided in this court, the 30 days provided by the statute did begin to run, and that the execution could have issued from the circuit court on that date; and that, more than 30 days having elapsed from that ■date, the plaintiff lost his remedy against the sureties on the appeal bond.

In this the court was in error. When the bond was ■given to stay execution, on appeal to this court, the circuit court lost jurisdiction. It had no power to make any further order in the case until the cause was properly transmitted from the Supreme Court to that court. Day v. De Jonge, 66 Mich. 550; Lake Shore, etc., R. Co. v. Chambers, 89 Mich. 5; Weiss v. Wayne Circuit Judge, 50 Mich. 158. It is admitted by counsel that, after the appeal to this court, the circuit court lost jurisdiction; but, in an opinion filed in the cause by the circuit judge, it is held that, after the decision here, it was the duty of the plaintiff to at once, and within the 30 days fixed by this statute, cause a remittitur to be filed in the circuit court, and that, having failed to do- this within the 30 days after the case was decided here, he lost all remedy against the sureties on the appeal bond. We think the court below was in error in so holding. The cause was beyond the jurisdiction of the circuit court until the remittitur was filed in that court, and no execution was “ legally issuable” until that had been done. Lake Shore, etc., R. Co. v. Chambers, 89 Mich. 5. The courts of other states have established the same practice. Compton v. Bowns, 26 N. Y. Supp. 18; State v. Levelle, 38 S. C. 216.

We think the question raised that the bond declared upon had no seal, while the one introduced in evidence was under seal, need not be discussed. The court admitted the bond in evidence, and the only point raised from which an appeal has been taken has been stated.

The judgment must be reversed, and judgment entered here in favor of plaintiff for the amount of the judgment against Beach and his sureties ($236.64), with interest at 6 per cent, from the date of such judgment to the date of entry of judgment here, with costs of both courts.

The other Justices concurred.


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    HINDS v. TOWNSHIP OF BELVIDERE.

    1. Taxes — Payment Under Protest — Irregularities in Assessment-Failure to Appear Before Board of Review.
    In an action to recover taxes paid under protest, reliance cannot be had upon irregularities that might have been corrected by a timely application to the board of review; nor can the assessment be shown to be invalid for reasons not specified in the protest.
    2. Same.
    A taxpayer must be presumed to know the powers and duties of the board of review, and the time fixed by the statute for its meeting; and he cannot excuse his failure to appear before that body by showing that he was out of the State.
    8. Taxes — Sale of Lands to State — Validity of Subsequent Assessment.
    Whether, under the general tax law, lands bid off to the State for delinquent taxes, and still held by thé State, can be assessed to the person who, but for such sale, would be the legal owner, and the tax collected by distress and sale of his property, — quaere.
    Error to Montcalm; Davis, J.
    Submitted December 6, 1895.
    Decided December 24, 1895.

      Assumpsit by Henry H. Hinds against the township of Belvidere to recover taxes paid under protest. From a judgment for. defendant, plaintiff brings error.
    Affirmed.

      Thomas F. Mo Garry .and George F. Mehols, for appellant.

      Frank A. Miller, for appellee.

       Rehearing denied March 12, 1896.

   Long, J.

This action was brought to recover the amount of taxes paid by the plaintiff to the township treasurer under protest. The case was heard before the court without a jury, and the court found that the plaintiff became the owner of the lands, against which the taxes were assessed, in the years 1870, 1871, and 1872, and that he had not conveyed the lands away; that for the several years succeeding the times of his purchase, and up to and including the year 1887, plaintiff paid the taxes assessed against the lands for each year; that they were assessed to the plaintiff as owner up to and including the year 1888; that the taxes assessed against them for the years 1888, 1889, 1890, and 1891 were not paid, and were returned as delinquent, and the lands were advertised for sale for nonpayment of taxes, and were sold to and purchased in by the State prior to the assessment of the taxes for the year 1893, and that they have not been redeemed from said sales; that the lands were assessed as nonresident for the years 1890,1891, and 1892; that they were assessed to plaintiff as owner for the year 1893; that on the 29th of January, 1894; the plaintiff paid to the treasurer of the township $185.48, being the amount of taxes assessed against the lands for the year 1893; and that said taxes were paid under the following protests:

“1. For the reason that these lands are assessed at an unequal and unreasonable value, as should be known to the assessing officer, and is known to him and to the board of review. It is well known that these lands are for sale, and have been for years, at much less than the valuation placed thereon by the assessor. It may be asked why, if I had an interest in these lands, I did not appear before the board of review and ask that the valuation be reduced. The answer is that during the session of that board I was not in the State of Michigan.
“2. These lands are nonresident, and the assessing officer had no sort or shadow of authority or right to assess them to me. As an illustration of the truth of this proposition, I cite the fact that the State is carrying, on all these lands, all the tax bids since the year 1887.”

Upon these facts the court entered judgment in favor of the defendant. It is claimed that the facts found do not support the judgment.

It is conceded by the plaintiff’s counsel that, as a general rule, no tax can be recovered which has been paid under protest, unless it is a nullity, and not a mere irregularity; but tlie complaint made is that this is an effort on the part of the township to collect out of the personal property of the plaintiff the amount of taxes assessed •upon lands then belonging to the State. The tax was ■assessed under Act No. 200, Pub. Acts 1891. Section 3 ■.of that act provides certain exemptions, as follows: “ All public property belonging to the United States, to this ■State, or to any county, city, village, township, or school ■district within this State, save lands purchased at tax .sales and still held by the State.” Under this provision ■of the statute, defendant contends that these lands were properly assessable to the plaintiff as owner. But the 'contention of plaintiff is that, inasmuch as the State was the owner under the tax sales, an assessment of them to .the plaintiff would deprive him of property without due •process of law, and take his private property for public use without compensation, and that such act is prohibited by the Constitution of the United States. The difficulty wifh this contention is that the protest is not made .upon any such ground. If we should hold that the protest amounted to a disclaimer of title to the lands in the plaintiff, and that it admitted the legal title to have been in the State at the time the tax was assessed and taxes paid, and the case should be determined upon that principle, it might result in estopping the plaintiff from ever •after asserting title to the lands as against the State bids for those years. We apprehend that the plaintiff did not intend that such construction should be put upon his protest. In it he is careful to say that he did not appear before the board of review because he was out of the ’State.

From the record it does not appear that he was a nonresident of the township. His property was assessed for taxes there, and the record showed the title to the lands to have been in him. The assessment roll was sufficient notice to him that his property was assessed. Hill v. Graham, 72 Mich. 659. Section 19 of the act of 1891 provides for a board of review, and defines its powers and ■duties. It has power, on its own motion, or on sufficient cause shown by any person, to correct such assessment roll; may add the names of persons to such roll; add the value of personal property, and the description and value of real estate liable to assessment; correct all errors in the names of persons, and all descriptions of property upon the roll; and do whatever else may be necessary to make such roll comply with the provisions of the act. If the plaintiff had appeared before the board of review, and it had found any irregularity in the roll, presumably, it would have corrected it. He did not appear, for the reason, as he claims, that he was out of the State. He must be presumed to have known the time fixed by the statute for the meeting of the board, and of the powers and duties of the board. It is no excuse, in the law, that he was out of the State. He was then and there entitled to be heard, and that was his day in court. He did not see fit to avail himself of the opportunity which the statute gave him.

The tax is not invalid because the assessment was made in the name of another person. It was, at most, a mere irregularity, which the board of .review could have corrected, had it been wrongfully assessed to him. If a person does not see fit to have his assessment corrected and perfected when it is in his power to do so, it must be assumed that a failure to complain is equivalent to an admission of correctness. First National Bank v. St. Joseph, 46 Mich. 530. As was said in Meade v. Haines, 81 Mich. 265, in speaking of the power of the board of review : “ The plaintiff did not appear before this board, nor in any manner avail himself of its provisions to correct the alleged erroneous assessment. This is a complete bar to his recovery here, even if he could otherwise maintain his suit.”

We are not called upon in this case to determine the question, so persistently urged by plaintiff’s counsel, that, the State having bid in the lands on sales for former years, the assessing officer had no right to assess the lands to the plaintiff, even though the statute provides that such lands shall be assessed, as that question might lead to disastrous consequences to the plaintiff, and we are unable to say that the protest is put upon that ground. The court below was not in error, in any event, in holding that plaintiff could not recover.

Judgment must be affirmed.

The other Justices concurred.


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    MOON v. McKINSTRY.
    1. Vendor and Vendee — False Representations — Statements as to Value.
    Whether representations made by the vendor of real estate as to the value of the property sold are'mere expressions of opinion, or such representations as, if false, will support an action by the vendee, is a question for the jury, even though the vendee saw the property before purchasing, where the evidence tends to show that he told the vendor that he had no knowledge of the value of the land, and would have to rely entirely on the vendor’s representations, and the latter replied that he might do so.
    3. Same — Evidence.
    The truth of a representation that certain land had sold for a specified amount is not established, as a matter of law, by proof that it had been so valued upon an exchange for other property.
    Error to Wayne; Donovan, J.
    Submitted December 6, 1895.
    Decided December 24, 1895.
    Case by Tbaddeus B. Moon against Robert McKinstry for false representations on tlie sale of real estate. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Casgrain, Sullivan, Mason & Dwyer, for appellant.

      Lemuel H. Foster, for appellee.
   Long, J.

This cause was commenced by capias acl respondendum, tlie declaration setting forth that the defendant, by means of certain false and fraudulent representations, induced the plaintiff to purchase from him four certain lots of land in Windsor, Ontario, for the sum of $1,500; that the defendant represented the title to said property to be in himself; that he could give a perfect title; that the lots were worth $400 each; and that lots in that neighborhood Avere selling right along for that amount each. The plaintiff further alleged that the defendant had no title to the lots in question; that they were not worth $400 each; that lots in that neighborhood Avere not selling right along for $400 each, which the defendant well kne>v; that the representations were made for the purpose of inducing the plaintiff to purchase; that these representations were false and fraudulent; but that plaintiff relied upon them as being true, and was induced thereby to purchase. The defendant pleaded the general issue. The case was tried before a jury, and resulted in a A'erdict and judgment for the plaintiff for the full sum of $1,500 and interest.

1. The first question raised is that the trial court erred in not charging the jury to find for the defendant, as requested. It will be necessary to state some of the facts relating to the issue, in order to an understanding of the question.here raised. The defendant resides in the city of Detroit, and was engaged in the real-estate business. He is a man of affairs. The plaintiff, avIio is a distant relative of his, sought him out on September 18, 1894, to ascertain where he (the plaintiff) could safely deposit $1,500, which he had brought with him from his home in Denton, a small station about 25 miles from Detroit, he being a telegraph operator there. The defendant introduced him at the Preston National Bank of Detroit, and plaintiff deposited his money there, taking a certificate of deposit for it. October 12th following, defendant wrote him a postal card, asking him to call at his first visit to the city, as he had something to tell him which he would like to hear. This card was received by the plaintiff, and on Monday, October 15th, he went to Detroit, saw the defendant, and inquired what it was he wanted to see him about. The plaintiff testifies to what took place thereafter substantially as follows: That the defendant told him he had been thinking about the deposit he had put into the bank, as he (the defendant) had some property in Windsor he would like to sell, and, if he (the plaintiff) wanted to invest his money, it was a good opportunity; that the defendant then showed him a plat, and explained it, and marked off lots that he had sold, and said all the lots marked off were sold; that he used a pencil, and marked off lots on the different streets —some 50 of them — as sold. The plat was shown the witness, and he identified it as the one exhibited to him by the defendant, the long lines representing the lots sold,— 50 in number, — and the small crosses the four lots which the plaintiff purchased that day. Plaintiff was then asked to relate the statements made to him by the defendant at that time, and stated as follows:

“ Why, my friend McKinstry, he went on to state to me that this Windsor property was on the boom. He talked gas, and talked about Daniel Scotten, and read me a good many newspaper clippings he had marked, and he had a good deal to say about Windsor property; thought it would be very safe and very advisable for me, and he thought that as long as I had the money, and doing-nothing with it, it would be a grand opportunity, to invest this money in Windsor. 1 told him I had no knowledge of the value of property in Windsor, and never had been in it, except to pass through on the cars. I had no idea of the value at all. And during this conversation with my cousin, he represented to me that this was what he called extremely good property on an investment, and he represented to me that he had already disposed of the greater part of these lots on this subdivision at $400, and he told me, towards the end of the conversation, he would sell me four lots, — four .of these lots that he had had $1,600 for; he needed this money, — he would sell me the four lots for $1,500 I had in bank; and he wanted to show me the property, and we got onto the ferry, and went across, and looked at the lots; and, when we came back, I tried to persuade him I wanted a little more time to consider the advisability of buying these lots; I wanted to think about it; I did not come down there that day to invest any money, or do anything rashly; not knowing-more about the business than I did, I wanted to have time to look it up; but he insisted upon my buying the-property that day, and he says: ‘I will guarantee you can sell those lots for $500 apiece without any trouble.

The plaintiff further testified that defendant said the lots were worth $400 quick, but he was going to give the plaintiff a great bargain. The plaintiff, continuing, says:

“I told him he had the long end of the lever on me, as I was not acquainted with Windsor, or anything in regard to the value of real estate there; * * * and, along at the end of the conversation, I told my cousin I would have to rely implicitly on his statement and his representations of the value of the property, and I had no knowledge of it, and would have to depend upon him wholly for the truth of the representations he made to me; * * * and he told me I could rely perfectly on what he said.”

The deal was then closed, the plaintiff indorsing over to the defendant the certificate of deposit, and taking a deed of the lots. The deed was drawn upon a Michigan form. Jt was arranged that the plaintiff should come back to Detroit in a week or 10 days, and defendant would go with him, and have the deed recorded. The plaintiff returned there about a week later, and found the defendant busy, and went alone to Sandwich, to have his deed recorded. He found the deed could not be recorded, because not upon the proper form. Upon returning to Windsor, plaintiff made some inquiries for the first time about the value of the property. He returned to Detroit, met the defendant, and told him of the refusal to record the deed, and what he had learned as to the value of the property purchased, and he then informed the defendant that he could buy much better property at $100 a lot cheaper, and he thought defendant had swindled him out of $1,000 on the deal. He tendered the deed back to •defendant, and demanded his money. This the defendant refused, and stated to plaintiff he would execute a deed on the Canadian form, which plaintiff told him he would not receive. Thereafter defendant made a deed upon the Canadian form, and mailed it to plaintiff, and put it •of record in Sandwich. Plaintiff afterwards deeded back the lots to the defendant.

It appears that, at the time the deed was made, the defendant held this tract of land under contract of purchase; that he thereafter obtained title to the four lots sold to plaintiff by paying a portion of the money received from the plaintiff for them. The defendant admitted all that plaintiff claimed in relation to the sale of the lots, the receipt of the money, and the representations that were made relative to the sale of other lots at $400 each, and insisted that the lots sold were worth $400 each. Considerable testimony was given in the case, — that by the plaintiff tending to show that the lots were worth much less than $400, some of the witnesses putting them down as low as $75 each, and others, on the part of defendant, valuing them at $400 each. Tire defendant also contended that he had sold the other lots at $400 each; but it appears in almost if not in every instance that they were not cash transactions, but exchanges made of the lots for other property. Three of the lots so marked •off the plat were sold to Mr. Wilkinson, a lawyer in Detroit. No money was paid, but two notes were given for $50 each, and the balance was an exchange of property. Six lots were thereafter sold, it is claimed, for $400 each; but defendant put the consideration in the deed at $3,000, and says he got property on that deal. Referring to a sale to one Ryan of four lots, the defendant admits that it was a trade, and says: “ I had to put in more property than this. I put in a patent right. I did not get any money at all. I had to pay on the property besides that.” Lots were also sold to Mr. Coleman, and this was in exchange for other property, the defendant assuming the incumbrance on the other property. In the sale to Mr. Hendrick, defendant received no money, but took property in exchange. In the sale to the Talbot Paving Company, defendant received no money. It is unnecessary to state other sales by defendant of these lots marked off on the plat, and shown to plaintiff as sales of property; but it appears to be admitted by the record that no ■sales were made except upon exchange for other property, in which the exchange values were placed at $400 and upwards. We think the court, upon this state of facts, would not have been warranted in taking the case from the jury.

2. It is contended that the statements of value made by the defendant were expressions of an opinion, and cannot be made the foundation of a suit. The opinion of the vendor of property he is selling as to- amount, quality, or value is frequently asked, and usually given, on sales, and is never actionable if no more than an opinion is expressed or honestly given. As was said by this court in Collins v. Jackson, 54 Mich. 186: “It is only when superior knowledge exists on the part of the vendor, and he knowingly gives a false opinion in regard to material facts, with the intention of defrauding the purchaser, that the latter can maintain an action.” The representations in the present case as to the value of the lots, we think, are to be considered as something more than mere expressions of an opinion. The plaintiff knew nothing of the value of property in Windsor, and so informed the defendant, and stated to him that he must rely entirely upon his representations. In order to induce plaintiff to make a purchase, and as bearing upon the question of the value of the lots, the defendant represented that he had sold some 50 of them, which he marked off on the plat, at $400 each. Many of them were situated upon the same street as the lots purchased by plaintiff, and the balance upon the next street adjoining. Upon defendant’s own showing, it does not appear that 50 lots were sold, or that there was a cash consideration for those that were sold, but that other property was taken in exchange; and the testimony of plaintiff’s witnesses shows that these lots would not exceed in value $75 to $100 each.

The defendant requested the court to instruct the jury as follows:

“ 2. The fact that plaintiff viewed the premises — i. <?., the lots in question — was a full notice to him- of the true value of the lots. All remarks and statements made by McKinstry were matters of opinion only.
“ 3. In all real-estate transactions, ‘ where the vendee has an opportunity of viewing the premises, the principle of caveat emptor applies, i. e., the purchaser is on his own guard as to value, and all matters that could be seen or known by viewing the land and examining the land.
“ 4. The testimony shows that McKinstry had such title in the lots as- warranted him in contracting and agreeing to give a warranty deed. His subsequent acts prove this, as the. warranty deed was passed to Moon exactly as agreed by McKinstry, and a good title has been conveyed.”

The second request was given in part, but the court modified it by saying: “If you believe that they were mere matters of opinion expressed, and not misrepresentations, then you will find for the defendant.” The court very properly made this modification. Under the testimony, it became a question of fact for the jury to determine whether the representations as to value were mere matters of opinion, or were assertions of fact, upon which the plaintiff had aright to rely; and, in determining this, the jury had a right to take into consideration the representations made as to the sales of other lots. The defendant does not deny that he represented that he had sold the other lots at $400, hut admits, upon his cross-examination, that it was in the way of exchange, and not for cash. We think the representations as to the sales of those lots were such as to induce the plaintiff to believe that they were cash sales, or, at least, that that was a question which the jury had a right to take into consideration in determining the falsity of the representations made.

Substantially, the court gave the third request to charge. It added, of its own motion, however, the following :

“ I will leave it to the jury if the parties met on an equality in this respect as to. the representations. It rests almost entirely between the two men. One says he insisted on taking the other over, and let him see the lots, and took time about it, and it was a satisfactory transaction; and the other says he was urged into it by the hour. Now you must decide between these parties as to the value. Fraud is not to be presumed from slight circumstances. It must be established like anything else.”

We think the court fairly stated the rule of law in this charge as applied to the facts in this case.

While the court declined to give defendant’s fourth request, he did state to the jury that—

“ The defendant claims that he did not know much about Windsor deeds, * * * but was perfectly willing to correct the mistake. There is no doubt, gentlemen, that a slight complication as to the title arose early in the case, in the American deed, and defendant claims he had that corrected, and that he was willing to correct it all the way through; * * * and the real dispute is not so much about the title, as it is about the value. * * * It is not so much about the deed to plaintiff, but the real issue is the value of the property at the time of this transaction.”

We think, under these circumstances, the defendant has no right to- complain that the fourth request was not given, even if he was entitled to have it given. The court treated the matter as though the only contention which the plaintiff made was over the value of the property; and it would seem, if any error was committed, that the plaintiff would have the better right to complain.

We have carefully examined the record, and are unable to discover any error.

The judgment must be affirmed.

The other Justices concurred.


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    TAYLOR v. SHIMMEL.
    Certiorari — Return— Evidence— Removal of School-District Officer.
    On certiorari to review the action of a township hoard in removing a school-district officer under 2 How. Stat. § 5170, the return of the clerk of the board is to be taken as true. The fact, therefore, that the testimony returned is insufficient of itself to support the order of removal does not call for a reversal, where the return shows that evidence was introduced sustaining the allegations of the complaint, and that all of the testimony is not returned.
    Error to Manistee; McMahon, J.
    Submitted December 4, 1895.
    Decided December 24, 1895.
    William G. Taylor instituted proceedings before the township board of Maple Grove township, Manistee county, to remove Frank Shimmel from.the office of assess- or of school district No. 4, in said township. From a judgment of the circuit court on certiormi, affirming the action of tlie board in removing him, defendant brings error.
    Affirmed.

      P. W. Nishern, for appellant.

      Dunlap & Chamberlain, for appellee.
   Long, J.

Defendant was removed by the township board from the office of assessor of school district No. 4, Maple Grove township, in the county of Manistee. William G. Taylor made the complaint (which was in writing) that, as assessor, the defendant had illegally used and disposed of public moneys intrusted to his charge, and had persistently refused and neglected to discharge the duties of his office as such assessor. The proceedings were brought under section 5170, 2 How. Stat., which provides for the removal from office by township boards of any school-district officer who shall have illegally used or disposed of any of the public moneys intrusted to his charge, or who shall persistently, and without sufficient cause, refuse or neglect to discharge any of the duties of his office. After the removal, the defendant removed the cause to the circuit court for Manistee county, by writ of certiorari. The only allegation of error upon which the writ was issued is that “said township- board erred in malting an order of removal removing this deponent from office as assessor of this school district, upon all the allegations set forth in said complaint, without proof establishing them.” The circuit court affirmed the order made-by the township board, and the case comes to this court, by writ of error.

The return was made by the township clerk for the-board, and states that all the testimony is not returned, but that the defendant repeatedly testified that he had paid out the various sums of money set forth in the complaint, from the funds belonging to the school district,, without any orders drawn by the director and countersigned by the moderator of the district, and that there was. testimony showing that the defendant did persistently neglect and refuse to perform the duties of the office of assessor. It is contended, however, that the court could not consider this return, as the testimony was returned, and that from the testimony it conclusively appears that the return is not true. If no testimony had been returned, we should be compelled to take the return as true, •and it must be now so taken, as the return shows that all of the testimony is not included in the record. Counsel for defendant relies upon the case of McGregor v. Board of Supervisors, 37 Mich. 388. That was a proceeding to remove the county treasurer of G-ladwin county, for failing to file his official bond, and it was held that the records of the board of supervisors failed to show all the facts necessary to constitute cause of removal. It was there said that the deficiencies in the record in this regard could not be supplied by return to a writ of certiorari. It was deemed necessary by the court in that ease that the records of the board should show affirmatively all the steps requisite to the removal. In the present case it was not necessary to record the testimony taken. The return sets out the acts complained of, and that evidence was given which supported the complaint. We must take the return as true.

The judgment' of the court below, affirming the action of the township board, must be affirmed, with costs.

The other Justices concurred.


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    EDWARDS v. WAGHORN.
    1. Appeal — Review—Conflicting Evidence.
    Where the testimony in a chancery suit is taken in open court, a finding by the presiding judge on disputed questions of fact is entitled to great weight on appeal.
    3. Contract — Specific Performance.
    A contract whereby a mother was to convey certain property to her son upon the payment of an existing mortgage and of a specified amount in money, which should be “in full consideration” for the land, was specifically enforced as against the contention of the mother that it did not embody the entire agreement, but that she was to be given a mortgage as security for certain advances made to the son, where it appeared that the contract was read over to her at the time of its execution, and that for a period of eleven years thereafter she made no request for the execution of such mortgage, or for the repayment of the amount so advanced.
    Appeal from Montcalm; Davis, J.
    Submitted December 6, 1895.
    Decided December 24, 1895.
    Bill by Herbert Edwards against Ann E. Waghorn for the specific performance of a contract. From a decree for complainant, defendant appeals.
    Decree modified and affirmed.

      William 0. Webster, for complainant.

      John S. Mitchell, for defendant.
   Grant, J.

The object of the bill in this case is to enforce the specific performance of a land contract dated October 20, 1888, by which the defendant agreed to make and execute to complainant a good and sufficient warranty deed of the land therein described, subject to a mortgage of $500; and in consideration of said conveyance the complainant agreed to pay said mortgage when it should become due, and $100 paid at the date of the agreement. The agreement closed with this statement: “ Said amounts are in full consideration for said above-described lands.”

Complainant is the defendant’s son. In September, 1883, he found an opportunity to purchase the land mentioned in this contract, which was then owned by one Hickson. It was then incumbered with the mortgage above mentioned. Complainant was without means, and applied to his mother to assist him. The purchase price was $1,300. He had, therefore, to provide for a cash payment of $800. He admits that she furnished him $150. She claims to have furnished $620. The deed was made to the defendant. Complainant immediately went into possession, which he retained until shortly before the filing of this bill in 1891, and paid the taxes and the mortgage. The defense is that the written agreement does not contain the entire agreement between them, but that it was further understood and agreed that the complainant should give his note for the sum of $620, with interest, and secure the same bjr mortgage on this land, and that defendant purchased it from Mr. Hickson, and put complainant in possession thereof, upon that understanding and agreement; that she supposed and understood that the mortgage was ta be drawn immediately, and that it was not necessary that the same be mentioned in the contract; that her son insisted that as little as possible be said about the mortgage, claiming he would be mortified if it were known that he was putting only $100 into the land. Complainant contends that this advancement, made to him by his mother, was a gift, while she insists it was a loan. Upon this point the testimony was in direct conflict. The case was heard in open court, where the judge had the opportunity to see the witnesses, which is of considerable value in determining disputed questions of fact. We therefore see no reason for disturbing the finding of the court upon this issue.

The defendant admits that this contract was read over to her at the time of its execution. It was brief, unambiguous, and easily understood. Complainant continued in possession for 11 year’s, during which time defendant made no claim for interest or principal, or request for the execution of a note and mortgage. We think it established by a fair preponderance of the evidence that the contract embodied the entire agreement of the parties. Complainant admits that he has not paid the $100 as provided in it. The decree directed the specific performance of the contract, but made no provision for the repayment of this sum. The decree will be modified, ordering the specific performance upon condition that complainant pay to defendant, within GO days from the date of the decree in this court, said $100, with interest at 7 per cent. . from the date of the contract. No costs were awarded in the court below, and none will be awarded in this court.

The other Justices concurred.


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    WHITE v. GRAND RAPIDS & INDIANA RAILROAD CO.
    Railroad Companies — Ejection oe Passenger — Demanding Second Fare.
    A railway passenger who, having in his possession evidence of the fact that he has once paid his fare (e. g., a mileage book from which the proper mileage has been regularly detached), willfully neglects to produce the same upon his fare’s being" again demanded by the conductor in apparent good faith, cannot recover for his ejection from" the train in consequence of his refusal to comply with such demand.
    Error to Antrim; Corbett, J.
    Submitted December 5, 1895.
    Decided December 24, 1895.

      Case by Clark C. White against the Grand Rapids & Indiana Railroad Company for the wrongful ejection of plaintiff from one of defendant’s trains. From a judgment for plaintiff, defendant brings error.
    Reversed.

      T. J. O’Brien and James R. Campbell, for appellant.

      W. S. Reside (Bitch B. Williams, of counsel), for appellee.
   Long, J.

Plaintiff was a passenger on defendant’s road. He took passage at Mantón about 5 o’clock in the afternoon of May 6, 1893, intending to go to Mancelona. He had in his possession a mileage book marked “G. R. & I.,” ■and numbered 3,862. It was a 1,000-mile book, and had been used up to 828 miles. The conductor, one John Banks, came through the train soon after leaving Man-ton, and took from plaintiff’s mileage book numbers to 868, being the number of miles from Mantón to Mancelona. This strip was indorsed by the plaintiff’s name. 'The train stopped at Kalkaska 20 minutes for supper. The plaintiff alighted, and, before the train started, reentered the car, taking another seat from the one in which he had been sitting at the time the conductor took his mileage. What took place as the conductor came into the car after leaving Kalkaska is stated by the plaintiff as follows:

• “ Mr. Banks came into the car, and demanded my fare, ■to which I replied that I had paid my fare. He asked me where to, and I told him, I says, ' Now, Mr. Banks, you •ought to know where I paid my fare to. It is your business to know.’ And he says, 'You either pay your fare or get off.’ I replied that I would not get off until I was put off. He says, ' Oh, you want me to put you off, eh?’ He made a grab for the bell rope. He says,' Pay your fare •or get off.’. He made a grab for me, and dragged me out into the aisle. He just started with me, and shoved me towards the door. . I turned around, and said I had a "basket which I wanted to get. He says, ' I will get your ^basket for you,’ and gave me a shove towards the door; and he followed me up, and out onto the platform, and I got off.
Q. Did he make you get off the platform?
A. He did.
Q. Onto the ground?
“A. Yes, sir.
Q. Did you get your basket afterwards?
“A. Some one threw my basket out. I don’t know who it was.”

On his cross-examination, plaintiff testified further:

“ After leaving Mantón at a short distance, Banks came through. I gave him my mileage book, and he tore off my fare to Mancelona. I had no conversation with him at that time. I was then sitting in the smoking car. At Kalkaska I got off the train. ® * * When I returned to the train it must have been between 6 and 7 o’clock. * * * I got back into the same car. * * * I did not occupy the same seat. 'I changed my seat.”

The witness then detailed the conversation between the conductor and himself, and was asked:

“Q. Did you explain to him that he had regularly taken up your mileage?
A. I did not.
Q. That you had your mileage in your book?
“ A. I did not.
Q. You made no explanation of that kind to him?
“A. No, sir.
“ Q. You didn’t say to him, £ Mr. Banks, you took my mileage when I got on at Mantón for Mancelona, and I have my mileage book in my pocket to show that?’
££ A. I did not.
Q. You took no occasion, then, to try to explain to Mr. Banks how or in what manner you had paid your fare?
££A. No, sir.
££ Q. You simply stated to him that you had paid your fare, and that he ought to know to what place you had paid it?
££ A. That is right.”

He was asked further:

Q. Why didn’t you explain to Mr. Banks at the time the manner in which you had paid your fare?
A. Because he didn’t give me any chance to explain.
Q. You shook your hand at him, and said, ‘ Mr. Banks, you ought to know where I paid my fare to ?’
“A. Yes, sir.
“Q. ‘It is your business to' know?’
“A. Yes, sir.
Q. Would it have been any greater exertion for you to have said, ‘ Mr. Banks, I have my mileage, which will show where I paid my fare to?’
A. I don’t know as it would.
Q. Would there have been any more excitement about it?
- “A. I don’t know that there would. * ® *
Q. During the time he was stopping the train, after he pulled the bell rope, did you try to explain to Banks again any mistake there was in the matter?
“A. I did not.
“Q. You didn’t take any occasion to advise him that he was making a mistake, — that he had already collected your fare?
A. I didn’t say anything to him. * * *
Q. ’When you got out on the platform, or down on the ground, did you have anything further to say?
' “ A. Yes; I says, ‘ I’ll fix you for this.’ * * *
Q. But you had it in your mind then and there, as Banks was putting you off the train, that you were'going to fix him?
“A. Yes, sir.
Q. That was in your mind. You weren’t so confused over it but what you could remember that?
«A. No.”

The plaintiff further testified that the affair happened on Saturday evening, and that on the following Monday he consulted a lawyer in regard to bringing a suit against the railroad company. He testified further upon his cross-examination :

Q. There was no difficulty in your taking that out of your pocket and showing it to Banks, if you had seen fit to do so?
“A: No, sir.
l‘Q. But you didn’t see fit to do so?
“A. No, -sir.
“ Q. You simply said, ‘Now, Mr. Banks-, you know where I paid my fare to?’
A. That is what I said.
“ Q. ‘ It is your business to know?’
A. That is what I said, exactly.
“ Q. You were somewhat mad about it at that time?
“A. I was not; no, sir.
Q. Then how did you happen to shake your hand at him, and tell him these things?
A. To emphasize it.
Q. Did you say, ‘ Mr. Banks, I got on at Mantón, and you took my fare to Mancelona?’
“A. I did not.
Q. You had changed your position in the car, you say?
A. I had. I did not tell him who I was.
“ Q. You simply said to him it was- his business to do so, and to know certain things?
A. That is all I said to him. * * *
“ Q. Now, there is no difficulty by taking that mileage book and that mileage, and identifying the fact that the one was torn off from the other, is there?
“A. No, sir; I should not think so-.
Q. Then there would have been no difficulty, by your producing your mileage book and comparing it with the mileage that Banks had, of establishing the fact that you had already paid your fare?
“A. No, sir. *
Q. You had had some trouble with Banks previous to this?
A. I had.
Q. And Banks told you then that he understood his business?
A. He did.
Q. And you remembered it that night?
A. Yes, sir. * * *
“ Q. And you had that in vour mind?
“A. I did.
Q. And, when you repeated that language, it was because he had used the same language to you, didn’t you?
A. That is it, exactly.”

The conductor testified that, after plaintiff was out on the ground, he recognized him, and invited him to step back on the train again, which the plaintiff refused to do that this was the first time he recognized him, and the first recollection he had of taking his mileage. The plaintiff does not dispute but that the conductor invited him to' re-enter the car, but says he was unable to get upon the car, by reason of his weakened condition from ill-health, though he makes no claim that he called the conductor or any other person to assist him in getting upon the car, or that he would have re-entered the car, had he been assisted. The jury returned a verdict in favor of the plaintiff for $1,000 damages.

We think, under the plaintiff’s own testimony, the court should have directed the verdict in favor of the defendant. In Lucas v. Railroad Co., 98 Mich. 1, it was said:

After the surrender of his ticket, plaintiff had left his seat in the smoking car, and taken a seat in another car. If plaintiff received a check from the conductor, and, when his fare was demanded, did not produce the check, and, when requested, refused to go into the other car for identification, he could not recover.”

In the present case, according to the plaintiff’s own testimony, he had the evidence in his own possession which he knew at the time would have convinced the conductor that he had once paid his fare through to Mancelona. He purports on his direct as well as on cross examination to give all the conversation he had with the conductor. He did not give the conductor his name, how he had paid his fare, or when he had paid it; nor did he offer in any manner to explain to the conductor why he refused to pay again, except that he had paid, and the conductor ought to know his business. He admits that he had in mind some former occasion when the conductor had used that language to him, and that he had in mind that he would “ fix ” him. The conductor seems to have recognized him after he was off, and invited him to get on again, but this he refused. There is no excuse whatever-offered for such conduct. When he surrendered his mileage, he had the right to a check showing the point to which he had paid. This he did not call for, and it is evident that the conductor was misled by the change of seat. It appears conclusively that it was the plaintiff’s; ow-n fault that he was put off, and the conclusion is also* inevitable that he permitted himself to be put off for the-purpose of bringing an action against the' company for-damages. It needs no citation of authority to show that this action cannot be maintained.

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

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