text:
    The Kirby Carpenter Company v. John Trombley.

      Garnishment — Service on foreign corporation — Replevin—Costs.
    1. The provision of How. Stat. § 7086, that “in all cases of proceedings by garnishment against corporations, whether foreign or domestic, service of 'any process in the manner above provided for in case of foreign corporations \i. e., on any officer, member, clerk, or agent thei'eof within this State], shall have like force and effect as personal service upon natural persons.” is limited in its application to garnishment proceedings in which the original suit is commenced by attachment.
    2. Plaintiff, an Illinois corporation, replevied from the defendant certain property which he had seized upon an execution issued by a justice of the peace on a judgment rendered against the plaintiff as garnishee. The officer who served the garnishee summons returned that he had served the same by delivering to Andy L. Robbins, the agent of the said corporation having charge of its affairs within the county where the .suit was brought, a copy of said summons. And it is held that, for aught that appears from the return, the agent named may have been a mere custodian of property, without authority to control the affairs of the corporation in the matter of making contracts of any kind; that if the return had stated that the corporation was conducting a business of any kind within the county where the service was made, and that such business was within the charge and control of said agent, it would doubtless have been sufficient; b,ut that, as made, it was not sufficient to confer jurisdiction, under 3 How. Stat. § 8055, as amended by Act No. 178, Laws of 1891.

    •3. Where the appraised value of the property seized on a writ of replevin issued from the circuit court is less than $100, and the affidavit and writ are silent as to such value, and the only evidence thereof is the appraisement, the defendant, on the recovery of judgment by the plaintiff, should have judgment for costs; citing Kittridge v. Miller, 45 Mich. 478.
    Error to Iron. (Stone, J.)
    Submitted on briefs June 8, 1894.
    Decided July 10, 1894.
    Replevin. Defendant brings error.
    Modified and affirmed.
    The facts are stated in the opinion.

      Julius J. Patek (Cahill & Ostrander, of counsel), for appellant.

      B. J. Brown, for plaintiff.

       For cases bearing upon the question of who is an officer or agent, within the meaning of the statutes authorizing the service of process in certain cases upon any “officer or agent” of a corporation, see:
      1. Pettit v. Booming Co., 74 Mich. 214, holding that a book, keeper is not an officer or agent within the meaning of Act No. 175, Laws of 1885 (3 How. Stat. § 8055), which authorizes garnishment proceedings against corporations.
      2. Shafer Iron Co. v. Circuit Judge, 88 Mich. 464, where service of a writ of garnishment was made upon the resident agent of a foreign mining company, whose duties consisted in acting as custodian of the corporate property in the county where the company’s mining operations were carried on, and inspecting the work of its contractors in said county; which service was sustained under 3 How. Stat. § 8086, which authorizes such service upon any officer or agent of a foreign corporation found within this State.
      And see an extensive note to Foster v. Lumber Co., 23 L. R. A. 490, for a discussion of the question who may be served with process in a suit against a foreign corporation.

   Montgomery, J.

This case involves the validity of a judgment rendered against the present plaintiff as garnishee of one Dell Gaffany, the plaintiff’s contention being that the return of the officer fails to show valid service of the garnishee process. The return of the officer shows a service upon the defendant foreign corporation “by delivering to Andy L. Robbins, the agent of the said Kirby Carpenter Co. having charge of its affairs within said county of Iron, a copy thereof.” The court below held that this return did not give the justice jurisdiction.

The question is raised as to whether the validity of this service is to be determined by the provisions of section 7086, How. Stat., or whether section 8055, as amended by Act No. 178, Laws of 1891, covers the subject.

We think it obvious that section 7086 has no application. That section is limited in its application to garnishment proceedings in which the original suit is instituted, by attachment. This is made clear by the title to the original act, which is, “ An act to regulate proceedings in attachment against foreign corporations in certain cases.

Section 8055, as amended, provides that service may be made upon “the president, cashier, secretary, treasurer, general or special agent, superintendent, chief clerk, or other principal officer of such corporation.” Does the return in question show service upon a general or special agent within the meaning of this section?

We think the case is within the ruling in Lake Shore & M. S. Ry. Co. v. Hunt, 39 Mich. 469. In that case it was said that—

“The terms ‘general or special agent are very indefinite, but employed, as they are here, in association with terms designating the principal officers of the corporation, they evidently intend agents who, either generally or in respect to some particular department of the corporate business, have a controlling authority, either general or special. They do not mean every man who is intrusted with a commission or an employment.”

It is true that the return in the present case shows that the agent Robbins had charge of the affairs of the company within said county of Iron; but it does not appear what was the nature of the affairs of the company within the county. For aught that appears, the agent may have been a mere custodian of property, without authority to control the affairs of the corporation in the matter of making contracts of any kind. - If the return had stated that the corporation was conducting a business of any kind within the county, and that such business was within the charge and control of the agent, it would doubtless have been sufficient. We think the circuit judge was right in holding that the return was not sufficient to confer jurisdiction.

It is contended that the defendant should have judgment for costs. The appraised value of the goods replevied was $54.50. Neither the affidavit nor the writ set forth the value of the property, and there was no evidence, other than the appraisement, as to the value. We think, under these circumstances, defendant should have had judgment for costs. See Kittridge v. Miller, 45 Mich. 478. There was, however, a stipulation between the parties that no attorney’s fees should be taxed by or against either party to the suit, and, as the circuit judge rendered judgment without costs to either party, it is apparent that he understood this stipulation to cover all costs, and it does not appear that defendant sought to correct this erroneous impression. Under these circumstances, we do not think the costs on this appeal should be withheld from the plaintiff.

The judgment will be modified. The defendant will be entitled to recover his actual disbursements, if any, in the court below. In all other respects, the judgment will stand affirmed, with costs to plaintiff.

The other Justices concurred.


source: Caselaw Access Project

author: McGrath, C. J.

license: Public Domain

text:
    Edwin R. Phinney v. Edmund Hall.

      Real-estate agent — Middle-man—Commission.
    A real-estate agent who acts as an intermediary between a landowner and a prospective purchaser must at least act in good faith, and cannot be allowed to attempt to extort a price from one principal not demanded or required by the other, and then be entitled to a commission as for a service.
    Error to Saginaw. (McKnigkt, J.)
    Argued June 20, 1894.
    Decided July 10, 1894.

      Assumpsit. Defendant brings error.
    Reversed, and no new trial granted.
    The facts are stated in the opinion.

      Henry A. Chaney
      (Hatch & Cooley, of counsel), for appellant.

      Weadoch & Purcell, for plaintiff.

       Mr. Chaney died shortly before the argument of the case, and the remarks of counsel regarding his death will be found at the end of the opinion.

        REMARKS of counsel regarding the death of henry a. CHANEY.
      By Mr. Hatch, of counsel for the defendant:
      “Before closing my argument I wish to speak of a solemn occurrence connected with the case.
      “Mr. Henry A. Chaney was attorney of record for the defendant. He prepared the case on the part of the defendant, appeared and took an active part on the trial in the court below, settled the bill of exceptions, and prepared the brief to which his name is attached, and which has now been submitted to the Court. He expected to be present, and participate in the presentation of the case here. But he is dead. He died suddenly, on the 7th of June, at his home in Detroit.
      “ He has, for many years, been an active member of the bar, particularly in that department connected with the literature of the law. For his labors in connection with the many volumes of reports of the decisions of this Court, and in the preparation and editing of digests, and for his labors in connection with legal literature generally, the bar of the State owes to him a great debt of gratitude.
      “Mr. Chaney was a man of wide culture, of fine literary attainments, a genial, warm-hearted friend, and a most courteous gentleman. We who had the pleasure of his acquaintance will not soon forget, but will long remember, the many excellent qualities of our departed brother.
      “The brief which he prepared for submission in this cause was perhaps one of the last which he ever wrote.. Its nervous energy attests his power in presenting an argument. The fact that he is not here to-day to'address the Court — his untimely and unexpected death — adds a melancholy interest to the case.”
      By Mr. Weadock, of counsel for plaintiff:

        “May it please the Court:

        “ I want but another moment to say a word, in which I desire to join Mr. Hatch in his deserved tribute of respect to the memory of the late Mr. Chaney. His sad and sudden death is greatly to be deplored, and, while a sudden death lessens the duration of pain of the afflicted, it intensifies the shock, and deepens the gloom of the living friends of the departed.
      “I met him in the trial of this case and in its preparation for this Court, and, while he may not have tried as many causes as some other lawyers have, he had learned what some, unfortunately, never do, and that is to try a case upon its merits. He asked no small advantage; he was ready to have the issue thoroughly tried, and wanted no more.
      “It is safe to say that in his death our profession in the State has met with an irreparable loss.”

   McGrath, C. J.

This suit is brought to recover a commission upon the sale of certain Canada pine lands known as timber limits Nos. 100, 101, 105, and 106. Plaintiff insists that on the 2d of April, 1891, he met defendant, and had the following conversation with him:

I said I had some Canada timber in my possession I would like to show him, belonging to Pack, Woods & Co., of Cleveland, on which, if he would like to buy it, and if everything was satisfactory, I would get him a refusal. Hall got out a map of the country where it lay, and the tracts in question were numbered on the map, and the names of Pack, Woods & Co. were on. them. * * * He asked me how much timber there was on them, and I gave him all the information I had from Pack. * * * Then he wanted to know the price, and I said the price to them [the holders of prior options] had been $500,000; that Pack had made two groups of them, one consisting of berths 100 and 101, into one group called 'Number One/ and the other of berths 105 and 106, into ' Number Two,’ and the price of each was $250,000, or $500,000 for the four. Well, after talking further about it, he finally-said, said he: 'They look well, and lay well in a group; look well to lumber and well to handle. Now/ he said, ' I would like to look at them, and if I could get a refusal at less money’— 'Well, now/ I sáys, 'I don’t know as we can get any less refusal on them at all.’ And finally he said, if he could get a refusal of $450,000, he would go and look at them. 'Well/ I said, 'I don’t know as we can get any refusal for less than half a million dollars/ However, upon that conversation and talk at that time, and by his request, I wrote to Mr. Pack. I said to Mr. Hall: 'At the price they have been offered, — half a million dollars, — you will have to pay me $10,000 if you buy them all; or if you buy one group, or two berths,' you will have to pay me $5,000/ And he finally said, says he, 'I suppose you get a commission from Mr. Pack?’ And I said, 'I do.’ And he said; 'Of course, that makes no difference to me. If I can buy them, commission and all, at the price, I am willing to take them.’ And, after talking some little time further, he requested me to get a refusal of them four limits at $450,000. I did take up the matter with Mr. Pack with reference to getting a price on those lands.
" I next saw Mr. Hall, on the 8th day of April, at my office, in this city. At the Detroit conference, I said to Mr. Hall: 'Now, Mr. Hall, there is just one commission to this land. In case you buy it all, it don’t make any difference what price you buy it at, you have got to give me $10,000, if you buy it now, or at any time; -buy it at $450,000, or at any price.’ That was the talk that we had, and he consented to it; and upon that I got the .refusal, or got a letter from Mr. Pack. On April 8, I saw Mr. Hall, at my office in this- city. I telephoned the invitation to him to see if I couldn’t see him. I learned he was in the city, and was at Judge Edget’s house to dinner, and I telephoned him there, and made an agreement to have him call at my office in the post-office when he came down from dinner, which he did. I had a talk with him at that time. I said that I had written Mr. Pack, as he had requested me, the day after I left his office in Detroit; and that I had a letter from Mr. Pack in reference to that, and he authorized me to offer the four limits at 1450,000. I think I showed him the letter.”

On April 9, 1891, Hall wrote plaintiff as follows:

“ The advices we get from Canada seem to show it to be impracticable now to travel over limits, as the streams are all at flood; and I find Mr. Morey had promised to send our men as soon as snow is off to look some other limits. So it is impracticable at present to take an option on the limits we talked with any expectation of looking them promptly. I am greatly obliged for the interest you have manifested in helping me get on the trace of some good limits. If I can see a chance of getting men onto those limits hereafter, if they remain in your hands unsold, I will write or see you personally.”

Cn May 18, 1891, plaintiff wrote defendant as follows:

“The Canada timber limits already talked to you about and made you prices upon are still in the market at the price given you. No one has had the refusal since I talked with you last, and it is' now a good time to look at this timber; and if you would like the refusal, and could look at it, I shall be pleased to get the same for you. If you have an idea that you would care to look at it at all, and it is not convenient for you to look at it now, how soon before you will be able to send and have it examined?”

Hall replied May 19 as follows:

“I have four men over in Canada now, and they cannot be expected back before the flies would render it impracticable to stay in the woods. I shall not probably attempt to do anything till after midsummer.”

On August 28, 1891, Hall wrote Phinney as follows:

“A man having an option on two of the Pack, Woods & Co. limits you once had for sale wants me to look them, with the view of buying. I write to. ask advice and information. The limits he claims to represent are Hyman ' and the one directly north of it, No. 101; these two being the east of the four limits. Can you tell me if the other two limits are for sale, or could be for sale,' if you wanted it? And can you tell me which two are the most desirable to supply my mill? Of course, I should much prefer to deal with you if any of the lands are in your hands. Do you remember what price the lands were held at while in your hands?”

Phinney replied, saying:

“I think Mr. Pack has given some one in Detroit option on berths Nos. 100 and 101 that you refer to; at least, he told me that parties in Detroit wanted the refusal upon them. Berths Nos. 105 and 106 are not in the market, — that is, they are not being offered, — but I think I could get you the refusal upon them in case you want to go at once and look at them. I will write Mr. Pack to-day to know if you can have the refusal upon 105 and 106 or not, also find out .if the' parties offering you berths Nos. 100 and 101 have the refusal or not, and will write you again. If you will remember, I gave you price upon the four berths at your request, with an offer of an option for you to go and examine them if you so wished, at $450,000; but you replied under date of April 9, 1891, that you had other berths then to look, and could not look at any other until this fall. My information from Mr. Pack about these limits is that there is more timber upon berths 100 and 101 than upon Nos. 105 and 106, but that the timber is much better upon Nos. 105 and 106, but - that the timber upon 105 and 106 is not so handy to get out as on Nos. 100 and 101; but my opinion is that you should buy the four berths if you want as much timber, but, if you want 150 to 175 millions, you should buy berths Nos. 105 and 106. All these berths have been in my hands. Can yet get them for you if option has not been given, in case you want to look them at once.'”

Defendant heard nothing further from plaintiff. October 22, 1891, Hall bought berths No. 100 and 101 from Pack, Woods & Co. for $185,000, and in November, 1892, he bought limits Nos. 105 and 106 for $225,000.

It appears that on March 28, 1891, Pack wrote to Phinney as follows:

“I think it will be fully as well to offer only two of our timber berths, and not put the others on the market at present. "We have decided to reduce the price of berths Nos. 100 and 101 to $210,000, and to withdraw berths 105 and 106. You may offer 100 and 101 at the reduced price to the parties, as you think best.”

April 2, 1891, Phinney wrote to Pack recounting his interview with Hall. He says:

“I told him that there was at least without doubt 250,000,000 of timber, and may be more, and. the price you had offered the four limits would be only $2.00 stumpage. I did not give him the price that you now name on limits 100 and 101, and said to him that I had been figuring with Merrill & Ring; and that, if you made any better price on these two limits than you had made some time ago, then I should feel as if I was under obligations to offer to Merrill & Ring first, but, in case they should not accept of your figure, I would then give him the refusal. He has looked at several pieces over there, but none has yet suited him, He likes the way these four limits of yours lay, and says that, if he should look at them, he should not care if there was not over 250,000,-000; if the land was worth the price was all he wanted.
“ Upon receipt of this letter, if you still decide that you do not want to offer limits 105 and 106 with the other two limits, then you had better telegraph me accordingly, so that question will be settled and decided. By that time I shall have seen Ring & Merrill, and will know if they want to look at limits 100 and 101 at the present price you name. I will then have all the facts before me, and can tell better what it is best to say to either Ring & Merrill or Mr. Hall. He asked me if I did not think you would make him a price on the four limits at $450,000. He will look at them, and take refusal at that price, and I think he will go and look at them at even more, as he is plenty able to buy, and is anxious, as he wants to fetch the timber to his mill at Bay City.”

It appears from the written evidence disclosed by this record that at the time of the first interview, at which it is insisted that defendant consented to pay plaintiff from $5,000 to $10,000 for his services in defendant’s behalf, plaintiff had been instructed by Pack, Woods & Co. to sell limits Nos. 100 and 101 at $210,000; yet at that interview plaintiff concealed from defendant that information, and informed him that the price for those limits was $250,-000, or $40,000 more than he had been authorized to sell those limits at. It also appears by a letter written to Phinney by Pack, Woods & Co. on April 21, 1891, that Phinney was again instructed to offer these limits at $210,-000. This information was concealed from defendant. It is no answer to say that the double employment was disclosed. As middleman, he was not intrusted to fix the terms, but merely to interpret between the principals. Story, Ag. § 31. He was not instructed by the sellers to obtain the best price possible. Whether a broker so instructed could act for both parties, and recover commissions from both, need not be discussed. Here the price was fixed. As his agent, Hall was entitled from plaintiff to all the information which he possessed consistent with his duty to Pack,. Woods & Co. His duty to them did not require this concealment. The intermediary must at least act in good faith. He cannot be allowed to attempt to extort a price from one principal not demanded or required by the other, and then be entitled to a commission as for a service.

Upon the undisputed testimony, plaintiff is not entitled to recover, and the judgment is reversed, with costs of both courts, and no new trial granted.

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


author: Hooker, J.

text:
    The Henry Bill Publishing Company v. Clinton C. Durgin.

      Conversion — Sale—Agency.
    1. Where a person becomes sole agent for the sale of specific articles which he only obtains by purchase, the agency begins ' and ends with the exclusive privilege of handling the goods in the allotted territory.
    2. Plaintiff is a book publishing company, and sues in trover for the conversion of copies of a certain book which defendant had engaged to canvass for and sell in certain designated territory, and of certain moneys received on such sales. The contract between the parties consisted of certificates of agency and of agreement- signed by the respective parties. The certificate of agency stated that the defendant was appointed general agent for the sale of the book in certain territory; that he was required to sell it at the regular printed prices, except as stated in the certificate; that he was to be allowed a discount of SO per cent, from the printed subscription prices as his commission for soliciting and delivering; that all books undelivered might be returned within three months from time of shipment, if in good condition, at the prices charged, and the same would be credited to the defendant; that the defendant would not be permitted to dispose of his agency, or the territory allotted him, without written permission from the plaintiff. In a postscript attention was called to the number of agents canvassing for the book, and the impossibility of ascertaining in regard to the responsibility of names offered as security, and it was suggested that the defendant remit funds with orders, or that he could have the books forwarded by express, C. O. D. In the certificate of agreement the defendant obligated himself, in consideration of his appointment as general agent, to canvass the territory allotted him, and none other, to devote his entire time to such canvass, and to report from week to week his success. Before shipping the books on defendant’s order a guaranty of payment was required, which defendant gave, and the books were thereupon shipped, and in default of payment this action was brought as before stated. And it is held that the title to the ' books passed to the defendant, and that he cannot properly be held for unlawful conversion of the same, or of the money for which he may have sold them.
    Error to Kent. (G-rove, J.)
    Submitted on briefs June 20, 1894.
    Decided July 10, 1894.
    Trover. Defendant brings error.
    Reversed, and no new trial granted.
    Tbe facts are, stated in tbe opinion.

      Taggart, Knappen <& Denison, for appellant, contended for tbe doctrine of tbe opinion.

      Earle & Hyde, for plaintiff, contended:
    1. That the relation between a commission agent for the sale of goods and his principal is fiduciary, and the proceeds of sales belong to the principal; citing Baker v. Bank, 100 N. Y. 31.

      2. Where an agent for the sale of goods guaranteed the collection for all goods sold on credit, and received a larger commission on account of this guaranty, the title to the proceeds of sales received by the assignee for the benefit of creditors of the agent was held to have remained in the principal; citing Converseville Co. v. Woolen Co., 14 Hun, 609; Burton v. Goodspeed, 69 Ill. 237; and where a manufacturer agreed to give an agent the exclusive sale of all its products for a certain territory, and the agent guaranteed all accounts, and was to pay for all goods not sold in a certain time, it was held that the title to the goods unsold did not pass to the agent; citing Plow Co. v. Porter, 82 Mo. 23.
    3. In the case of goods consigned to be sold for the consignor, who is to regulate the price and terms of sale, the consignee is an agent, and the contract is one of bailment; and this is so though the consignment is made on a del credere commission. If, however, the consignee or factor is to sell upon terms fixed by himself, and is bound to pay to the consignor a fixed price, the contract is one of sale; citing 21 Amer. & Eng. Enc. Law, 520; Walker v. Butterick, 105 Mass. 237; Audenried v. Betteley, 8 Allen, 302; Morss v. Stone, 5 Barb. 516; Rosencranz & Weber Co. v. Hanchett, 30 Ill. App. 283; Railroad Co. v. Mower Co., 76 Me. 251.
    4. A vendee agreed that if he kept the property he would pay a certain price therefor. He died before payment, and his widow sold the property. And it is held that such sale was a conversion; citing Jillson v. Wilbur, 41 N. H. 106.

      5. A purchaser of a quantity of gin agreed to give his note therefor, with a good indorser. He took the gin away without objection on the part of the vendor, and sold it. He never procured the indorser. And it was held that title did not pass, and he was liable for conversion; citing Whitwell v. Vincent, 4 Pick. 449.
    6. Where goods are consigned to a factor to be sold, any portion remaining unsold to be returned to the consignor, the transaction is a bailment; citing Blood v. Palmer, 11 Me. 414; Bank v. Schween, 127 Ill. 573; Middleton v. Stone, 111 Penn. St. 589; Eldridge v. Benson, v. Cush. 488.
   Hooker, J.

The defendant appeals from a judgment in trover upon a verdict directed by the court. The action was commenced by declaration filed February 2, 1892, and charges the conversion “heretofore, to wit, January 1, 1886,” of “a certain large number of books, to wit, of 500 copies of a book entitled ‘Twenty Years in Congress,’ of the value of $1,000; and a certain large amount of lawful money of the Hnited States, to wit, of the sum of $1,000, of the value of $1,000; and a certain large number of bank bills, gold certificates, silver certificates, greenbacks, and gold and silver coin, to wit, of the value of $1,000.” The plea was the general issue.

The plaintiff is a foreign corporation, engaged in publishing books, among which is the book named, and the defendant engaged in the sale of said book under a contract with plaintiff. The contract was the result of correspondence, and consisted of a certificate of agreement, signed by the defendant, and a certificate of agency, signed by the plaintiff. They are as follows: ’

“ Oertieicate oe Agency.
“This certifies that Clinton C. Durgin, of Hillsdale, Hillsdale Co., State of Michigan, is duly appointed general agent on commission for the sale of ‘Twenty Years in Congress’ in the townships of all Kent county, State of Michigan, and other townships, from time to time, as he may need them in thorough canvass, provided his success is mutually satisfactory, under the following rules and conditions:
“1. No other agent will have the right to occupy the above-named territory, nor will the said Durgin be permitted to canvass upon any other territory knowingly until it is duly allotted him, under penalty of forfeiture of list.
“2. The agent is required to sell books at the regular printed prices, except to those who will render sufficient assistance to warrant a discount, such as clergymen, editors, those who take more than one copy, etc., and to sell no books except by subscription.
“3. The agent is cautioned against setting any definite time for the delivery of books, and to have every subscriber write his or her name as much as possible. (See book of ‘Private Instructions.’)
“4. The agent will be allowed a discount of fifty (50) per cent, from the printed subscription prices (see prospectus sheet and subscribers’ cards) as his commission for soliciting and delivering, i. e., for the muslin binding he will receive $3.75; for the sheep, $4.75; for the seal Eussia, $5.50; and for the half morocco, $6.25; and a discount of 40 per cent, on the edition de luxe, $8.00.
“ 5. All books undelivered may be returned within three (3) months from the time of shipment (if in good condition) at the prices charged, and the same will be credited to the agent, provided he puts .his name on the box, so we may know from whom it comes.
“ 6. The agent is desired to recommend to us gentlemen and ladies to become agents (giving name and P. O. address), and, if such parties engage with us, we will give him $10 as a premium for each person "so recommended when he has delivered 100 books. No premium allowed unless the party was recommended previous to his engaging with us.
“7. The agent will not be permitted to dispose of his agency, or the territory allotted him, without written permission from us.
“ 8. This certificate takes effect when the agent returns to us the ‘certificate of agreement,’ properly signed, and bearing even date with this; otherwise it is null and void.
“Dated at Norwich, Conn., this 20th day of July, A. D. 1883.
“The Henry Bill Publishing Company,
“ Chas. C. Haskell, President.
“N. B. Having about 1,000 agents now in the field, in different parts of the country, it will be impossible for the publishers, in the press of business, to ascertain in regard to the responsibility of names offered as security by many, and especially those at a distance. They therefore suggest, as the better way for the agent, so that his order may be promptly filled, to remit fnnds with the order, as per our printed instructions, in which case the books will go by freight line instead of express, making a saving of expense; or he can have them forwarded per express, with bill for collection on delivery' (C. O. D.), and, if unable to take and pay for all at once, can doubtless arrange with the express agent at the point of delivery to take a part at a time. Cash orders will be filled in advance of all others. The agent will be required to pay particular attention to our book of Private Instructions, furnished to each agent, and, as far as possible, observe all its requirements.”
“ Certieicate or Agreement.
“ In consideration of having received the general agency for the work entitled f Twenty Years in Congress,’ in the townships of Kent county, State of Michigan, I do hereby agree:
“1. To thoroughly prepare myself on the book, according to the publisher’s printed instructions, before entering the field to canvass.
“2. To enter no territory to canvass until it has been duly allotted me.
“3. To canvass thoroughly each township by school-districts, and to continue the canvass until I have finished all territory entered upon.
“4. To devote my exclusive time to canvassing for the books of the Henry Bill Publishing Company while in their employ.
“5. To report my success by card and letter each week, giving the number of subscribers for the week, also the whole number to date, and to report none but bona fide subscribers.
“6. To prosecute the canvass, and to follow the publisher’s printed instructions, to the best of my ability.
“7. To commence canvassing within ten (10) days from the date hereof.
“Dated this 24th day of'July, A. D. 1883.
[Signed] “Clint. C. Durgin, Agent, [l. s.]
“ Grand Rapids P. 0., Kent Co., State of Michigan.
“Hillsdale--, Hillsdale, Michigan.”

Under this arrangement the defendant took orders and made delivery of the first volume of said hook, and the second' volumes were shipped from Norwich, Conn., upon June 8, 1886. Before shipment, plaintiff required a guaranty of payment, which defendant gave, his father becoming surety therefor. The correspondence in relation thereto was as follows, so far as it appears:

“Office of Henry Bill Publishing Company.
“Norwich, Conn., Jan. 30, 1886.
“Dear Sir: Your favor of the 26th inst. received. The second volume is practically complete, and we expect to be able to ship books within 10 or 12 days, but, of course, they cannot get to you in time for yon to deliver and receive your money and pay up your note. The note is payable at Grand Bapids, and if you can arrange to take care of it there it would be all right] otherwise it would have to be renewed for a short time. It will be necessary for you to give us security on the 2nd volume, and to cover the note also, before we can ship the 2nd volume.
“ Yours truly,
“Chas. 0. Haskell, Pres’t.'
“0. C. Durgin, Esq.,
“Grand Bapids, Mich. O. B.”
“New Market, N. H. — Bochester, N. Y.,
“Eeb. 20, 1886.
“Chas. C. Haskell, Esq.,
“Norwich, Ct.
“Dear Sir: My son, Clinton C. Durgin, of Grand Bap-ids> writes ine that the second vol. of Blaine’s book, f Twenty Years in Congress,’ is ready for delivery,'but that they will not be furnished unless the pay is guaranteed. You sent the first vol., I think, on my guaranty, and I hereby guarantee the pay for the second. This has been delayed by my absence from home. Hoping that this may be satisfactory, I am,
“Yours truly,
“D. W. C. Durgin,
“Ex-Pres. Hillsdale College, Hillsdale, Mich.
“New Market, N. H.”

The books were thereupon shipped (June 8, 1886) to the defendant. Bepeated requests for payment having proved unavailing, this action was brought. The plaintiff claimed a balance of $17.73 upon the sales of volume 1, and $601.65 on sales of volume 2. The judgment was for $882.45, being the full amount claimed, $619.38, with interest.

The contract is peculiar. It consists of a certificate of agency, the receiving of which is made the consideration for defendant’s promise to canvass. This certificate of’ agency prescribes the rules and conditions upon which the defendant was permitted to sell plaintiff’s book. It nowhere expressly obligates the plaintiff to furnish him any books, or to pay him any compensation. It says that he will be allowed a discount of 50 per cent, from the printed prices;” not that he will be paid, or may deduct from moneys received for plaintiff, 50 per cent. This is as consistent with the theory that he was to purchase the books at such discount as that they were to continue the property of the plaintiff. The next paragraph is consistent only with the former theory. We must conclude that it subserves some useful purpose. If so, what is it? It permits defendant to return the books upon certain conditions. - If he were not a purchaser, he would have the right without this provision, which would be unnecessary; but, upon the theory of purchase, it secured him the valuable right of return if he could not deliver the books-This theory is also supported by the significant postscript to the certificate of agency, which must be treated as part of the contract. This shows that the goods were to be paid for upon delivery, either by cash in advance or by payment to the express agent before delivery. It cannot be supposed that the title was expected to remain in plaintiff after payment. It may be said that these books were furnished without such payment; but, while this is true, the defendant was required to secure the payment before plaintiff would ship the goods. Upon the evidence contained in- this record we think that title to the books passed to the defendant, and that he could not properly be held for unlawful conversion of the same,, or of the money for which he may have sold them. It is no uncommon thing for persons to become sole agents for the sale of specific articles which they only obtain by purchase, which arrangement may be of advantage to both the vendor and so-called agent.” The agency begins and ends with the exclusive privilege of handling certain goods in given territory. This is' apparently one of those cases.

We think it unnecessary to discuss the other questions raised. The jury should have been directed to render a verdict for the defendant.

Judgment reversed, and no new trial will be ordered.

McGrath, 0. J., Long and Grant, JJ., concurred. Montgomery, J., did not sit.


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    Russell Wheeler and Frank E. Wheeler v. Louisa Meyer and John F. Guilloz.
    [See 95 Mich. 36.]

      Principal and surety — Estoppel—New trial — Practice in circuit . court.

    An utter disregard on a second trial of the rules laid down by the Supreme Court on the reversal of a former judgment calls for a second reversal, with costs of both courts.
    Error to Wayne. (Brevoort, J.)
    Argued June 21, 1894.
    Decided July 10, 1894.

      Assumpsit. Defendants bring error.
    Reversed.
    The facts are stated in 95 Mich. 36.

      Albert J. Chapman, for appellants.

      Corliss, Andrus & Leete, for plaintiffs.
   McGrath, C. J.

This cause was before this Court in January, 1893, and is reported in 95 Mich. 36. It is sufficient to say that the rules there laid down were utterly disregarded upon the retrial.

The judgment is reversed, with costs of both courts to defendants, and a new trial ordered.

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


author: Montgomery, J.

text:
    Harrison Robinson v. Sanford H. Watson and Gerbert Veenstra.

      Pleading — Assumpsit by assignee — Averment of promise.

    Where a declaration in a suit by one partner on an account for goods sold and delivered to the defendants by the firm, which has been assigned to him by his copartner, avers the sale and delivery of the goods, the assignment of the account, the promise of the defendants to the firm to pay the account, and their failure to pay as agreed either the firm or the plaintiff, a demurrer on the ground- that the declaration should have averred a promise by the defendants to pay the plaintiff cannot be sustained.

    Error to Muskegon. (Russell, J.)
    Submitted on briefs June 26, 1894,
    Decided July 10, 1894.

      Assumpsit. Plaintiff brings error.
    Reversed.
    The facts are stated in the opinion.

      Brown & Lovelace, for appellant.

      Nelson DeLong, for defendant Watson.

       For cases bearing upon the question of the sufficiency of the declaration in a suit by an assignee of a chose in action under How. Stat. § 7344 see Morrill v. Bissell, 99 Mich. 410, 411, and note.

   Montgomery, J.

The plaintiff'declared on the common counts for goods sold and delivered, etc.,- to defendants by plaintiff and one Omer Bobinson, averring an assignment by Omer Bobinson to plaintiff, and a promise to Omer Bobinson and plaintiff by defendants. The declaration did not aver a promise by defendants to plaintiff, but did set out the failure of defendants to pay as ..agreed either the 'Original owners of the claim or the plaintiff. This declaration was demurred to, on the ground that it should have averred a promise by defendants to pay plaintiff.

The declaration was good in form and substance. The English bankruptcy statute (6 Geo. IV. chap. 16, § 63) provided that the assignee in bankruptcy should be entitled to recover all debts due to the bankrupt in his-own name, the provision of the statute being, in this respect, the same as that contained in our statute (How. Stat. § 7344). Under this statute, the precedents contain an averment of a promise to the bankrupt, but none of a promise to the assignee. See form in 2 Chit. Pl. *98. See, also, Powell v. Williams, 99 Mich. 30. The plaintiff, on the trial, would not be bound to prove the promise to himself if he was able to prove an express or implied promise to his assignor, and there is no propriety in holding a declaration insufficient which avers every fact material to .be established in order to entitle plaintiff to recover.

The judgment will be reversed, with costs, and the case remanded for further proceedings.

The other Justices concurred.


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    John Toll v. Edwin Jerome and Franklin Jerome.

      Constitutional law — Judicial circuits — Transfer of cause — Title of act — Introduction of bill.

    1. Act No. 208, Laws of 1898, which imposes -upon the circuit judges of the sixteenth and thirty-first judicial circuits the duty respectively of holding the term or terms of court for the trial of such causes as the other judge may be disqualified or may be unable to try, and forbids the transfer of any cause from either of said circuits on account of the disqualification of the judge thereof, except it be shown that the judges of both of said circuits are disqualified from sitting in said cause, or that they refuse or are unable to sit therein, is not in conflict with any constitutional provision.

    2. A bill entitled “ A bill to vacate the sixteenth judicial circuit, and to reorganize the thirty-first judicial circuit,” was read a first and a second time by its title within the first 50 days of the session. After the expiration of said 50 days, the bill was referred to the judiciary committee, which reported it back to the Senate with a substitute therefor, entitled “A bill to require the judge of the sixteenth judicial circuit to hold the terms of court of the thirty-first judicial circuit in certain cases, and also to require the judge of the thirty-first judicial circuit to hold the terms of the sixteenth judicial'circuit when the resident judge may be disqualified from acting on the trial, or whenever the expedition of the business of either of said circuits may necessitate additional assistance.” And it is held:
    a — That the objection that the act is unconstitutional because not introduced within the first 50 days of the session is untenable; that a substitute is not a new bill, and may be offered after the lapse of the first 50 days of the session, if it is germane to the subject covered by the original bill; that the general purpose of this original bill was to provide for the holding of courts in the territory covered by the sixteenth and thirty-first judicial circuits; and, while, the substitute provided other means for the transaction of the business, it related to the same subject-matter.
    b — That the object of said act is to provide for the holding of court for the trial of causes within certain defined territory, and the fact that this territory consists of two counties does not make the title double, within the meaning of the constitutional provision.
    c — That the provision of section three of said act, that the cause shall remain in the court where the trial is provided for, is not only germane, but essential to the carrying into effect of the provisions for the trial of the cause in that court.
    d — That there is no force in the objection that the act imposes upon certain circuit judges duties which are not imposed upon others, and is therefore class legislation, as the Constitution (article 6, § 11) in terms provides that the judges of the circuit courts may hold court for each other, and shall do so when required by law.

      Certiorari to review proceedings before Seth W. Knight, circuit court commissioner, resulting in the transfer of a cause from Macomb to Wayne county for trial.
    Submitted on briefs June 28, 1894.
    Reversed July 10, 1894.
    The facts are stated in the opinion.

      James G. Tucker and Byron B. Erskine (H. W. Stevens, of counsel), for plaintiff (petitioner in certiorari).

      Eldredge & Spier (A. L. Canfield and A. B. Avery, of counsel)., for defendants.

       See In re Estate of Sanborn, 96 Mich. 606, holding that the act does not apply to an application for a transfer which had been passed upon at the time of the passage of the act.

   Montgomery, J.

This is certiorari to a circuit court commissioner of Macomb county to review proceedings taken before him for a transfer of a cause pending in the Macomb circuit court to the circuit court for 'the county of Wayne for trial. It is not questioned that the showing for the transfer was sufficient to comply with the requirements of the general law relating to the transfer of causes in cases where the circuit judge is interested; but it is contended that, by Act No. 208, Laws of 1893, provision is made for the trial of causes in this circuit in case the judge is disqualified, and the transfer of causes to other circuits prohibited. This is unquestionably true if the act in question is not unconstitutional.

The statute provides that when causes are pénding in this circuit in which the judge shall be disqualified, “or whenever it may be necessary in order to expedite the business of such circuit, it shall be the duty of the judge of the thirty-first judicial circuit to hold the term, or terms of court for the trial of such causes as the judge of the sixteenth judicial circuit may be disqualified or may be unable to try; ” .and section 3 of the act provides, in substance, that no cause shall be transferred or removed from said circuit on account of the disqualification of the judge thereof, unless it shall appear that the judge of the thirty-first judicial circuit is also disqualified, or that he refuses or is unable to sit in the sixteenth circuit.

It is contended that the act is unconstitutional:

First. Because not introduced within the first 50 days of the session.
Second. Because not read three times.
Third. Because it has more than one object, and the title is double.
Fourth. Because the third section, prohibiting the transfer of causes, is not germane to the title.
Fifth. Because it attempts to impose upon certain judges duties which are not required of all circuit' judges.
Sixth. Because it attempts to prescribe a particular practice for' two circuits not in common -with or general to other judicial circuits.

It appears that the bill as originally introduced in the Senate was entitled “A bill to vacate the sixteenth judicial circuit, and to reorganize the thirty-first judicial circuit.” This bill was read the first and second times by its title, and was laid on the table. This action was taken within the first 50 days of the session. On May 18, after the first 50 days of the session had expired, the bill was taken from the table, and referred to the committee on judiciary. On May 23 the committee reported the bill back to the Senate, recommending the adoption of a substitute therefor, entitled—

“A bill to require the judge of the sixteenth judicial circuit to hold the terms of court of the thirty-first judicial circuit in certain cases, and also to require the 'judge of the thirty-first judicial circuit to hold the terms of the sixteenth judicial circuit when the resident judge may be disqualified from acting on the trial, or whenever the expedition of the business of either of said circuits may necessitate additional assistance.”

We think the first objection urged against this act should not prévail., This Court have repeatedly held that a substitute is not a new bill, and that such substitute may be offered after the lapse of the first 50 days of the session, if it is germane to the subject covered by the-first bill. The general purpose of the original bill was to provide for the holding of courts in the territory covered by the sixteenth and thirty-first judicial circuits. This is-plainly evident from the title. The substitute provided other means for the transaction of the business, but still related to the same subject-matter. See Pack v. Barton, 47 Mich. 520; Attorney General v. Amos, 60 Id. 372;. Attorney General v. Rice, 64 Id. 385; Hart v. McElroy, 72 Id. 446. Neither the case of Sackrider v. Board of Supervisors, 79 Mich. 59, nor Attorney General v. Plank Road Co., 97 Id. 589, is in conflict with the earlier decisions. In Sackrider v. Board of Supervisors the bill which was offered as a substitute related to a subject in no way germane to that covered by the original bill, which was true also of the case of Attorney General v. Plank Road Co.

The suggestion that the bill was not read three times is answered by the foregoing cases, which indicate that it is entirely proper to substitute a new bill by way of amendment at any stage of the proceedings.

Nor do we think the act open to the objection that the title is double. The object of the act is to provide for the holding of court for the trial of causes within certain defined territory, and the fact that tthis consists of two counties does not, we think, make the title double,” within the meaning of the constitutional provision.

The third section is germane to the title. The general object and' purpose of this statute is clear. As before stated, it is to provide for the trial of causes within certain defined territory. A provision that the cause shall remain in the court where the trial is provided for is not only germane, but essential to the carrying into effect of the provisions for the trial of the cause in that court.

There is no force in the objection that the law imposes upon certain circuit judges duties which are not imposed upon others. The Constitution (article 6, § 11) in terms provides that the judges of the circuit courts may hold courts for each other, and shall do so when required by law. It is difficult to understand how language could be plainer. How. Stat. § 6462, requires that, when a judge is unable to discharge the duties of his office, the Governor may direct one of the judges of another circuit to fill his place. This provision has remained upon the statute books for many years, and its validity has never been questioned.

The criticism that the act is special legislation, in an obnoxious sense, is answered by the same constitutional provision above quoted. ,

We think the law is not in conflict with any constitutional provision, and should be held valid.

The- order of the circuit court commissioner will be reversed, with costs.

The other Justices concurred.-


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    The Ocqueoc Improvement Company v. Alfred Mosher, Jr., and Alvin Maltby.

      Logs and logging — Navigation company — Tolls for use of improvements — Contract.
    1. A river navigation company, organized under How. Stat. chap. Ill, cannot recover from log-owners fon the use of its improvements where the rate of tolls has not been fixed by the State Board of Control, as provided by How. Stat. § 3859, in the absence of a special agreement by the log-owners to pay for such use.
    2. The testimony in this case is held to fall short of showing such a contract liability on the part of the defendants, it appearing therefrom that, while* the defendants were the owners of the logs on which the toll was charged, yet a third party had contracted with them to deliver the logs and to pay the toll.
    Error to Bay. (Maxwell, J.)
    Argued June 27, 1894.
    Decided July 10, 1894.

      Assumpsit. Plaintiff brings error.
    Affirmed.
    The facts are 'stated in the opinion.

      Weacloch & Purcell, for appellant.

      John L. Stoddard, for defendants.
   Montgomery, J.

Plaintiff brought this action against the defendants to collect a balance claimed to be owing for tolls for the use of improvements on the Ocqueoc river, in Presque Isle county. The declaration is on the common counts. To entitle the plaintiff to recover, it was necessary to show an agreement upon the part of defendants to pay for the use of the improvements, as no attempt was made to show that the rate of tolls had been fixed by the State Board of Control, as required by statute. How. Stat. § 3859. While we do not hold that the parties may not waive the fixing of the rates of toll, and bind themselves by special contract, nothing short of this would entitle plaintiff to recover. The circuit judge directed a verdict for the defendants, so that the sole question is whether the plaintiff made a prima facie case showing a special contract between the' defendants and the plaintiff.

A careful examination of the testimony offered convinces ns that the plaintiff fell short of showing a contract liability on the part of the defendants. The evidence offered, fairly construed, shows that, while defendants were the owners of the logs on which the toll was charged, yet one Hodgson had contracted with the defendants to deliver them and pay the toll.

Plaintiff called two witnesses to establish the claim that the contract was with the defendants. The first witness was Frank W. Tallmadge. He testified that on 'the 1st of August, 1892, he went to defendants, Mosher and Maltby, and that he received the note of A. Maltby, payable to the .order of J. V. Hodgson, for $1,000, to apply upon the tolls. He was asked oh direct examination if he had any conversation with Mr. Maltby with reference to the tolls at the time of the' taking of the note, and replied, “I went there to collect tolls, and they paid me this $1,000 on account of the tolls.” He was then asked:

I notice that this note is made payable to the order of J. V. Hodgson, and indorsed by him. State the conversation you had with Mr. Maltby with reference to making the note.
“A. He offered to give me Mr. Hodgson's note, and I would not accept it. I told him I wanted his own note; that I did not know anything about Mr. Hodgson, and I did not have anything to do with Mr. Hodgson in.regard to the tolls.”

He was then asked what answer Mr. Maltby made to these statements, and r.eplied:

“Why, he said they had made a contract with Mr. Hodgson to cnt, bank, and drive their logs, and that it included the tolls, — 25 cents a thousand.”

He then testified, further, that in September he called on the defendants, and asked payment of the balance due on the tolls, and that Mr Maltby said that the amount was correct, and they were ready to pay it, but that there were some other people laying claim to it, and they did not want to pay it until they knew whom to pay it to. On cross-examination he testified that, at this last-mentioned conversation, Mr. Hodgson and Fred Tallmadge were present, and that Mr. Hodgson took some part in the conversation, and it was then stated that Mr. Hodgson had been garnished by one Fitzpatrick. In answer to the question whether, at that time, Mr. Maltby did not claim that defendants had nothing to do with the payment of the tolls, — that that was a matter for Hodgson to attend to, — he replied:

“He may have said so.
“Q. If he did make that claim at that time, would you not have been very likely to remember it?
“A. I know he made that claim several times.
“Q. You would not say that he did not make that claim at that time?
“A. I couldn’t say whether he made that claim at that «time or not.”

On redirect examination, witness testified to another conversation at the house of Mr. Maltby, in which Mr. Maltby had made the same claim, — that Hodgson was to pay the tolls, — and that, on the witness’ statement that the plaintiff looked to the defendants for the tolls, Maltby replied that they would pay the tolls, and would charge it to Hodgson, but that they would have to see Hodgson first.

This testimony cannot be distorted into an admission of liability by defendants, as original contractors. It is open to but one construction, and that is that Hodgson, as between the defendants and himsélf, had undertaken to run these logs, and was therefore liable to pay the tolls, and that defendants were willing to pay on the order of Hodgson, but not otherwise. Frederick Tallmadge testifies as to this same conversation in September, and also testifies that Mr. Hodgson was present, and to the statement of Mr. Maltby that Mr. Hodgson had been garnished by Fitzpatrick. He further testified that defendants said they were willing to pay the toll's as soon as they knew whom to pay them to; they didn’t want to have to pay them twice. In answer to the question: “ State whether or not Mr. Hodgson’s presence there was brought about in any way by you,” he replied: “They said, if we could get Fitzpatrick to dissolve their suit, that Mr. Hodgson could then fix it up, and I think I talked with him about that once or twice.” In answer to the question, on direct examination, as to “ what, if anything, was said by Mr. Maltby as to who was indebted for that balance,” witness testified: “I don’t know as he— We were talking about the tolls, and he said he was ready to pay them as soon as they found out whom they'should pay them to.” On cross-examination he was asked:

“Didn’t Mr. Maltby claim, in that conversation, that it was not for them to pay the tolls; that that was a matter for Hodgson to attend to?
“A. No, sir; I don’t think he did. I am not sure.”

But witness had testified, in effect, that defendants stated that, upon the dissolution of the garnishment, Hodgson could then settle for the tolls; showing very clearly that the parties must have understood that the original liability rested upon Hodgson, and was so understood and contended by defendants. This is not weakened by the testimony of Frank Tallmadge, who testifies that defendants said they owed the amount, and were ready to pay it when they knew wbom to pay it to. This must be construed in connection with his other testimony, and it is idle to say that the witness did not understand that the defendants were contending from the first that the liability to pay was the liability of Hodgson.

We think the judgment should be affirmed, with costs.

The other Justices concurred.


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    Nellie J. Myers v. Charles V. Weaver and William S. Downey.

      Homestead — Exemption—Intended use.

    A married woman sold her homestead, which was mortgaged, for the purpose of relieving herself of the incumbrance, and with the intention of purchasing an adjoining unimproved lot, and building and occupying a house thereon. She purchased the lot, and, before the same was levied upon at the suit of a judgment creditor of herself and husband, the location of the house had been staked out, the stone drawn upon the lot for use in constructing a cellar, which a party had been engaged to excavate, and negotiations had been had with a builder in relation to the construction of the house. And it is held that the lot was held for 'use as a homestead at the time of the levy, and was therefore exempt from levy and sale on execution.

    Appeal from Kalamazoo. (Buck, J.)
    Submitted on briefs June 28, 1894.
    Decided July 10, 1894.
    Bill to remove a cloud from title. Complainant appeals.

      Decree reversed, and one entered in this Court in favor of complainant
    The facts are stated in the opinion.

      Volney H. Lockwood, for complainant.

      A. D. Harris (A. S. Frost, of counsel), for defendants.

       For cases bearing upon the question of the exemption from execution of unoccupied land because of its intended occupancy by the owner as a homestead, see Kaeding v. Joachimsthal, 98 Mich. 78, and note, page 80.

   McGrath, C. J.

Complainant, in July, 1892, sold to one Mrs. Tittle a house and lot which had been occupied as a homestead, and bought an adjoining lot, the title to which was also placed in complainant. A suit was commenced against complainant and her husband in November, 1892, upon a promissory note, given in July, 1891, for a debt of the husband, resulting in a judgment by default in December, 1892. A levy was made upon complainant's lot. This bill is filed to remove the cloud, and alleges that the lot levied upon was bought for use as a homestead. The lot was not built upon at the time of the levy, and the sole question is whether it was bought and held for that purpose.

It appears that complainant's husband, John Myers, had in 1889 conveyed to defendant Weaver a certain other lot, and some time afterwards Weaver claimed that Myers had, at the time of the conveyance, misrepresented the amount of a mortgage subject to which the conveyance was made. Myers insisted that there was no misrepresentation, but that the amount of the mortgage was correctly given, and that he had agreed at the time of the conveyance to reduce it by payment. In July, 1891, Myers and complainant joined in a note to Weaver for the difference, and assigned to him as collateral a certain mortgage, which was held by complainant and her husband against a farm which they had owned, and sold in November, 1888. The mortgage so assigned was subject to other mortgages, and, at the time of the assignment, a prior mortgage was in process of foreclosure. The farm was subsequently sold in that proceeding, and brought less than the amount of the prior mortgage. The written opinion of the trial court appears in defendants’ brief, from which it is clear that the circumstances connected with the sale of the lot to Weaver, and the subsequent assignment of the mortgaged security, were relied upon as affecting the credit given to the testimony of the complainant and her husband.

We do not find in the record any reason for discrediting complainant’s testimony. It is conceded that the lot sold to Mrs. Tittle was the homestead. The title to the lot sold to Weaver was in John Myers. Complainant is not connected with any misrepresentations made respecting the mortgage, and it does not appear that she knew anything about the amount thereof. She received no part of the proceeds of that sale, nor is she connected with any representations made concerning the mortgage that was assigned as collateral to the note sued upon.

It appears that the house and lot sold to Mrs. Tittle was incumbered for $900; that the purpose of the sale was to obtain relief from that incumbrance, and get a cheaper home; that the intention was to build and occupy a house upon the lot in question; that, before the suit upon the note was brought, the location of the house had been staked out, stone had been drawn upon the lot for use in construction of the cellar, a party had been engaged to excavate, and negotiations had been had with a builder relative to the construction of the house, and there is evidence that the contract had been actually prepared. Respecting these matters, complainant’s testimony is oorroborated by witnesses other than the husband. A real-estate agent testified that he was told by Myers at one time that they desired to sell the lot, but the same witness testifies that Myers told him at the same time “that he was at work at the paper mill; that it was going to be a good ways for him to go over there, and he made up his mind he would sell it, and buy over there, or build, or something of that kind.” The attorney who had the note in his hands for collection says that, a short, time before the suit was brought, he saw complainant, and had a conversation with her respecting the payment, of the note, in which he asked her how she came to buy the lot, and she replied that she bought it for speculation;, that he then asked her. what she was going to do with it, and she replied that, if she got a chance, she would sell it; “and I even went so far as to ask her if she was going to build upon it, and she said she was not.” Com- , plainant denies that she made these statements. The' clear weight of testimony is, however, in favor of complainant. The testimony of several witnesses, other than the parties in interest, as to things actually done upon the lot some time before the commencement of the suit, tends strongly to corroborate the complainant',s contention that the lot. was held for use as a homestead.

The decree below is therefore reversed, and a decree: entered here for complainant.

The’other Justices concurred.


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    William H. Rexford and Harriet N. Rexford v. William E. Schofield.
    Deed — Consideration—Life support — Bill to rescind,

    1. Children who contract for the care, ease, comfort, and convenience of aged parents, with the full knowledge of their infirmities, cannot be heard to plead those infirmities as an excuse for a failure to carry out the contract, especially where the evidence of bad faith and overreaching on the part-of the children is abundant.

      2. Complainants filed a bill to set aside a deed of their farm to their grandson, made in consideration of his agreement to provide for them a comfortable life support, to insure his life in a given sum for their use and benefit, and to assume a certain obligation of the grandfather for $100, and any accrued interest, in favor of his daughter. Complainants were old and feeble, and the defendant made false representations to them as to his financial ability to perform his contract. He sent his father and mother and sister, who were dependent upon him, to live on the farm, with a view of his relief from their support, rather than with reference to any benefit his grandparents should receive from their presence. His father, who had been intemperate in his habits, and who had reformed, soon demonstrated that his reformation was not permanent, and not only proved to be a nuisance about the farm, but abused complainants. And a decree setting aside said deed is affirmed.
    Appeal from Jackson. (Peck, J.)
    Submitted on briefs June 28, 1894.
    Decided July 10, 1894.
    Bill to set aside a deed. Defendant appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      Wilson & Cobb, for complainants.

      Barhworth & Blair, for defendant.
   McGrath, C. J.

This bill is filed to set aside a conveyance made in April, 1891, by complainants to their grandson, the defendant, in consideration of his agreement—

To provide every comfort and convenience essential to the decencies and necessaries of life of both William H. Rexford and Harriet N. Rexford so long as they may live; * * * to insure his life for the use and benefit of said second parties, for the sum of $1,000, in one of the best insurance companies in America; * * * and to assume a certain obligation of William H. Rexford in favor of Mrs. A. R. Tibbitts [a daughter] for the sum of $100, together with any accrued interest thereon."

It is clear that complainants were old and feeble, that they relied implicitly upon defendant, and that they were induced to convey by defendant's repeated declarations of his anxiety to relieve them from the burden of the care of the farm and provide for their comfort, and his representations as to his financial ability. He resided in Chicago, and was engaged in a general brokerage business there, living with his father, mother, and sister. His mother had turned over to him a few hundred dollars,— all that the family possessed, — which he had invested in office furniture, and had undertaken the support of the family. In a letter written by defendant to his grandmother December 7, 1890, he had represented that himself and partner had made nearly $1,000 in cash, during the 10 days preceding the 1st of December, in commissions; that he was then in Indianapolis “to arrange the last preliminary previous to a culminating point in our electric light company. This one enterprise has over $50,000 in store for me.” This follows this inquiry:

“Grandma, could you rest contented in a place of the size of Chicago, if you had a handsome little home in a pretty suburban park, with every possible convenience? Why I ask is this: that I have been offered a splendid place in Auburn Park by.Dr. Lathrop, on easy terms, for $6,500. The house alone cost $4,000 for building. The finish is in hardwood throughout, — rich mantels, gas, bath, furnace, etc., — and I have almost decided to buy same. If I thought you and grandpa would come and make your home with us, it would be an additional incentive for me to do so. Besides, it is not going to be long before I will have more money than I will know how to use, it is feared.”

On December 11, 1890, the daughter, then with the old people, wrote to defendant, suggesting that complainants were getting old and feeble, and unable to operate the farm; that she was about to leave them; that she thought they could be induced to leave the farm; and suggesting that he make a proposition to them, involving their care and comfort in the future. On December 14, 1890, the grandmother wrote to defendant as follows:

“I have felt for some time like I did not know what would be best for us to do, as Alta cannot stay longer with us, and besides there is a good deal of hard work on the farm, and she, of course, would earn a good deal more for herself than we could give her to stay, and we have to make some kind of arrangements soon now, so she may know what to depend upon. I would not wish-to be kept at your expense, but want arrangements made so you would be sure of receiving a reasonable remuneration for caring for us, and would want the property we have to last as long as we both live, and give us a decent burial. I feel like I could accept of your kind offer, and I don't doubt but father, too, for he can't do much, and it is a great effort for him to do anything; and, since I can't work, I feel weaned from the farm, and am willing to leave it. We want to know your terms, and please write. I wish you could be here, and talk with us, and then we could come to some kind of an understanding as to what we should do."

Other correspondence followed, but no proposition was made or discussed. In April, 1891, defendant visited the old people, and brought with him, and exhibited to them, certificates of stock in various enterprises, and a policy of insurance upon the life of his partner, informing the old people that these papers represented vast wealth. The execution of the deed and contract resulted. Nothing appears to have been said about their removing to Chicago. Complainants were desirous of making provision for the payment of $200 to each of five children of complainants, and defendant suggested the insurance policy upon his own life. He returned to Chicago, and sent them a policy for $1,000, payable, in case his grandparents should survive him, to them; otherwise, to his mother. The receipt of this policy aroused the suspicion of the old people, and they wrote him, complaining. Then follow several letters from him, deploring the seeming loss of confidence in him, reiterating his assurances of good faith and his affection, and his extravagant assertions respecting his earnings and financial ability, and promising further provisions for their ease and pleasure. In the meantime he had sent his father, mother, and sister to the farm. Evidently, this course had been suggested by defendant, he assuring the old people that his father, who had been intemperate in his habits, and a good-for-nothing generally, had reformed, and would manage the farm, and relieve the old people from all care. The father, mother, and daughter came. The mother and daughter seemed to regard the change as having been made for their comfort and ease, rather than for the benefit of the old people. The defendant’s father soon demonstrated that his reformation was not permanent, and not only proved to be a nuisance about the farm, but abused the complainants. Thus, the old people, instead of being relieved from work and care, were further burdened with these surroundings, and were at the same time given to understand that the rights of the new-comers were paramount. Complaints were made to defendant, who came on from Chicago, when it was suggested to him that the papers be canceled; but he left, after having informed complainants that he had given his people a good talking to, and urged complainants to bear with them a little longer. The same trouble continued, and complainants afterwards filed this bill.

It clearly appears from this record that the only available assets that defendant was possessed of, at the time the deed and contract were made, were the furniture with which the flat in which defendant and his parents lived was supplied, and his interest in his own office furniture. It is also clear from this record that at that time defendant’s family were dependent upon him, and that the farm was selected as a place for them, and with a view of his relief from their support, rather than with reference to any benefit that complainants should receive from their presence.

It is urged that the father, mother, and daughter could not get along with complainants, because of their idiosyncrasies; but these were well known, and children who contract for the care, ease, comfort, and convenience of aged parents, with the full knowledge of their infirmities, cannot be heard to plead those infirmities as an excuse for a failure to carry out the contract, especially upon a record which -so abounds with evidences of bad faith and. overreaching as does this record.

The decree is affirmed, with costs to complainants.

The other Justices concurred.


text:
    The People v. William D. C. Germaine.

      Criminal lata — Evidence—Res gestae ivitness — Duty of people to call.

    1. Where, in a prosecution for assault with intent to commit the crime of murder, the complaining witness testifies that, at the time the shot which inflicted the injury complained of was fired, but one person aside from the respondent and himself was in the room where the shooting occurred, and that he (the witness) did not see the shot fired, and the evidence as to who fired it is purely circumstantial, it is the duty of the prosecuting attorney to call and examine said third party as a witness.

      2. The non-performance of this duty is not excused by the fact that said third party is a sister of the respondent, it also appearing that she was at the time of the assault the fiancé of the complaining witness.
    Exceptions before judgment from Grand Traverse. (Corbett, J.)
    Argued April 26, 1894.
    Decided September 25, 1894.
    Respondent was convicted of an assault with intent to commit the crime of murder. Conviction set aside, and new trial ordered. The facts are stated in the opinion and in the foot-notes.

      Pratt & Davis, for respondent.

      A. A. Ellis, Attorney General, and W. H. Foster, Prosecuting Attorney, for the people.

       For cases bearing upon the question of the duty of the people to introduce in criminal cases the testimony of res gestae witnesses, see note at the end of the opinion herein; and as to indorsing names of witnesses on information, see People v. Machen, ante, 401, and note.

   McGrath, C. J.

Respondent was charged with an assault upon one Ramsdell, with intent to commit the crime of murder. Ramsdell did not see the first shot fired, and the evidence as to who fired that shot was purely circumstantial.

The rule that the prosecution cannot properly claim a conviction upon evidence which expressly or by implication shows but a part of the res gestae or whole transaction, if it appears that the evidence of the rest of the transaction is attainable, and that all the witnesses present at the transaction should be called for the prosecution, unless it appears that the testimony of those not called would be merely cumulative, should certainly be applied in a case like the present. The court instructed the jury that their verdict—

“ Must be either that the defendant is guilty of assault with intent to commit the crime of murder, or that the defendant is guilty of committing an assault and battery, or an acquittal.”

All that occurred prior to the shooting was material, as determining the questions submitted, and the character of the act. The only witness called respecting these occurrences was the assaulted party. Maher v. People, 10 Mich. 212; Hurd v. People, 25 Id. 415; Wellar v. People, 30 Id. 16; Thomas v. People, 39 Id. 309; People v. Davis, 52 Id. 569; People v. Swetland, 77 Id. 53; People v. Deitz, 86 Id. 419.

The duty of the prosecuting attorney is not discharged with the mere production of the witness. As is said in People v. Swetland:

“It is the duty of the prosecuting attorney to furnish all the evidence within his power bearing upon the issue of guilt or innocence, in relation to the main issue, or to-give some good -excuse for not doing so.”

In Thomas v. People, 39 Mich. 309, a saloonist fired a pistol through his door in trying to keep a disorderly crowd out. He was charged with an assault with intent to murder. His son and another man were the only other persons in the saloon when the shot was fired. The stranger had been subpoenaed and called, but did not respond. This Court said:

“ No effort seems then to have been made to produce him, and no impediment to doing so is shown. The prosecution now attempt an excuse for this failure by saying that he was only one of several witnesses of the transaction, so that his testimony could only have been cumulative. The excuse, under the circumstances of the case, is not sufficient. Besides the actors in the affray, McCacklin was the only person who appears to have been in position to see what took place inside the saloon, and presumptively he could have given evidence of high importance. In some particulars his evidence, in all probability, would have stood alone.”

It is true that the witness Marie Germaine was the sister of the respondent, but she was also BamsdelBs fiancé. Under the circumstances, I do not think that the relationship of Miss Germaine would justify the failure to examine her.

I think that the conviction should be set aside, and a new trial ordered.

The other Justices concurred.

       Ramsdell testified that on the day of the shooting he was eating slipper at the house of respondent’s mother; that respondent ordered him to leave the house; that he at first declined to go, hut finally went into the sitting-room, where he was followed by respondent and his sister; that the three were the only occupants of the sitting-room; that .witness passed into the parlor, and, just as he was opening the door leading to the street, he received a bullet wound in his shoulder; that respondent’s sister went with witness almost to the door, and then ran back, and witness saw her take hold of her brother, and that this occurred about the time the shot was fired.

       At the conclusion of Bamsdell’s testimony one of the attorneys for respondent stated to the court that he should insist on the prosecution producing- the sister of respondent as a witness before closing their case. The sister was produced and sworn, and the prosecuting attorney declined to examine her as a witness for the people, but stated that the respondent was at liberty to examine her, which action was sustained by the court. The respondent’s attorney declined to examine the witness, put in no defense, and declined to argue the case to the jury.

        res gestae witnesses in criminal cases.
      For cases bearing upon the question of the duty of the prosecuting attorney to produce the testimony of res gestae witnesses in criminal cases, see:

        Homicide.

      1. Hurd v. People, 25 Mich. 405, 415, where the prosecution failed to call as a witness a party who was present at the assault which led up to the mtirder, and took part at that time in stopping the affray. He was afterwards sworn in behalf of the respondent, and it appeared that he heard the conversation leading up to such assault at an earlier stage than a witness who testified for the people regarding the same, and no relationship or complicity with the respondent was shown or pretended. And it was held:
      a — That the prosecution can never, in a criminal case, properly claim a conviction upon evidence which, expressly or by implication, shows but a part of the res gestae or whole transaction, if it appears that the evidence of the remainder is attainable; that this would be to deprive the respondent of the benefit of the presumption of innocence, and to throw upon him the burden of proving his innocence; that it is the res gestae or the whole transaction the burden of proving which rests upon the prosecution, so far at least as the evidence is attainable; that it is that which constitutes the people’s case, and as to which the respondent has the right of cross-examination.
      b — That the English rule goes so far as to require the prosecutor to produce all present at the transaction, though they may be near relatives of the prisoner, but doubtless, where the number present has been very great, the production of a part of them might be dispensed with after so many had been sworn as to lead to the inference that the rest would be merely cumulative, and where there is no ground to suspect an intent to conceal a part of the transaction; that whether the rule should be enforced in all cases where those not called are near relatives of the prisoner, or where some other special cause for not calling them exists, need not be here determined, but certainly if the facts stated by those who are called show prima facie or even probable reason for believing that there are other parts of the transaction to which they have not testified, and which are likely to be known by other witnesses present at the transaction, such other witnesses should be called by the prosecution, if attainable, however nearly related to the prisoner.
      2. Wellar v. People, 30 Mich. 16, 22, where the name of one of two persons present at' the occurrence was indorsed on the information, but the defense was compelled to call him as a witness instead of the prosecution. And it was held that the fact that the name of a witness is indorsed on the information does not of itself involve any necessary obligation to do any more than have the witness in court ready to be examined; but in cases of homicide, and in others where analogous reasons exist, those witnesses who were present at the transaction, or who can give direct evidence on any material branch of it, should always be called, unless, possibly, where too numerous.
      3. People v. Coffman, 59 Mich. 1, holding that where the homicide charged is shown by two unimpeached eye-witnesses, and is not denied by the respondent, who defends on the ground of drunkenness, he cannot complain for want of more evidence of the res- gestae, it appearing that others witnessed the killing.
      4. People v. McCullough, 81 Mich. 25, where three respondents were jointly informed against for manslaughter, and demanded separate trials. The theory of the prosecution was that the deceased came to his death by being hit with a stone thrown by one of the respondents. No concert of action was shown between them, and, at the time the stone was thrown, the other two were some distance from the one who threw it, and were nearer to the deceased, and, according to the testimony of some of the witnesses, had their hands raised, but the witnesses did not testify that they struck the deceased. The testimony failed to show any marks or bruises upon the person of the deceased. And it was held that it was the duty of the prosecution either to put the two respondents on trial first, or to tender them as witnesses for the people on the trial of the third respondent, and thus enable him to cross-examine them, if he so desired.
      5. People v. Harris, 95 Mich. 87, holding that where the names of the father and mother of the respondent are indorsed on the information, and the mother, who claims to have witnessed the entire affray, is called and testifies on behalf of the people, the rights of the respondent are fully protected by the prosecution calling the father, who had not witnessed the beginning of the affray, and having him sworn, and by his examination by the counsel for the respondent.

        Assault With Intent to Murder.

        Thomas v. People, 39 Mich. 309, 312, where the assault was committed by the shooting of one who was attempting with others to enter respondent’s saloon. It appeared that respondent, his son, and a stranger w;ere alone in the saloon at the time of the shooting. The stranger had -been subpoenaed on the part of the people, and, when called, failed to respond. No effort was made to produce him, and no impediment to doing so was shown. The defense asked that the prosecution be required to place him .upon the stand for examination, which request was refused. And it was held that the excuse attempted to be made for failing to produce the witness, i. e., that his testimony could only have been cumulative, under the circumstances of the case, was insufficient; that, besides the actors in the affray, he was the only person who appeared to have been in a position to see what took place inside the saloon; that presumptively he could have given evidence of high importance, and in some particulars his evidence, in all probability, would have stood alone.

        Assault with Intent to do Great Bodily Harm less than Murder.

        People v. Deitz, 86 Mich. 419, where the names of certain witnesses, who were shown by the preliminary examination to have witnessed the affray at a distance of from 35 to. 40 rods, were not indorsed on the information, and the court declined to require the prosecuting attorney to call them on the request of the respondent’s counsel, although present in the court-room, and they were afterwards called and sworn on behalf of the respondent. And it was held: ,
      a — That it is not correct practice to compel the defense to call witnesses present at the occurrence for which the party is on trial.
      b — That it is incumbent upon the prosecuting attorney not only to have such witnesses present in court, but to have thejn sworn in behalf of the people, and he may then examine them much or little, as he chooses; thereby affording the respondent an opportunity of cross-examination without prejudicing his case by the bias of the witness, if he should have any.
      a — -That it is incompetent for the prosecuting attorney, after refusing to call such a witness, to comment upon the fact that he was sworn upon the preliminary examination, or that he was present in court, and was not called by the respondent.

        Assault and Battery.

        People v¡ Kenyon, 93 Mich. 19, holding that where the only eye-witnesses were the respondent and his wife, the complaining witness and his son, and a fifth party who saw a portion of the affray, such party is an important witness, and should be produced by the people, and the court has power to compel the prosecuting attorney to call such party.

        Burglary.

        People v. Gordon, 40 Mich. 716, where the only evidence connecting respondent with the offense was his arrest with a satchel containing the articles taken from the burglarized building. The prosecution had in court a person whose name was indorsed on the information, and who had been convicted of the burglary for which respondent was being tried, but failed to call him as a witness. And it was held that the suppression of this positive testimony, which on every consideration of justice the prosecution was bound to produce, entitled the respondent to every inference that could be drawn from it.

        Larceny.

        1. People v. Long, 44 Mich. 296, where an officer testified that he saw respondent’s father search his son immediately after the theft, and that he took from him what appeared to be a gold piece, and put it in his own pocket. Respondent’s counsel moved to strike out this testimony unless the prosecution called the father as a witness. And it was held that the testimony was admissible as a part of the res gestae; that the failure to call the father was not, under the circumstances, erroneous; that there was no claim that he knew anything more about the transaction than the finding of the gold piece; that it appeared that he was present in court, and active in aiding the defense; that his position in regard to the facts was not such as to make him a necessary witness for the people to enable respondent to be protected against a false accusation, and his relation to the defense made it still less important.
      2. People v. Wolcott, 51 Mich. 612, 618, where the name of respondent’s wife was indorsed on the information, and counsel for the respondent insisted that she should be called by the people, so that the defense might have an opportunity for cross-examination. And it was held that the court was correct in declining to order this, the relationship of the witness to the accused being sufficient for excusing her.
      3. People v. Henshaw, 52 Mich. 564, where, in a prosecution for larceny from the person, the disputed question of fact was as to the identity of the respondent as the one who committed the offense. As the prosecution was about to rest the case, the counsel for the respondent requested that the prosecution be directed to call as a witness a person then in the court-room, whose name was indorsed on the information, and who helped to arrest the robbers. And it was held that the refusal of the court to grant the request was not error; that it was not claimed that the proposed witness was present at the robbery, and upon the question of identity he was no more qualified to testify than any other person who had acquaintance with the person to be identified.

        Receiving Stolen Property.

        People v. Goldberg, 39 Mich. 545, where respondent was convicted upon the testimony of two of the thieves, and of a witness who testified to conversations with the respondent which corroborated the testimony given by the thieves about respondent’s reception of the property. The testimony of two other witnesses tpnded to show that the goods were found at the house of respondent’s brother-in-law. The brother-in-law was in court, but was not called by the people. Respondent’s counsel asked the court to require the prosecution to call the brother-in-law as a witness, which the court refused to do. And it was held that the offense consisted in the guilty reception of the property; that the evidence for the people was aimed to make out that this was a distinct personal act, identified by direct proof, and that it was accomplished and complete apart from any subsequent deposit at the brother-in-law’s; that it was not pretended that the brother-in-law was present at the fact, and the evidence imported that he was not; and that the case did not, therefore, impose any duty upon the prosecution to call the brother-in-law as a witness.

        Uttering Forged Instrument.

        People v. Swetland, 77 Mich. 53, where the persons whose names purported to be affixed as witnesses to the forged instrument were not produced, nor their names indorsed on the information, and no showing was made that the names were fictitious. And it was held that their testimony was a necessary part of the people’s case, which could not be omitted without good excuse.

        Keeping House of Ill-fame.

        People v. Wright, 90 Mich. 362, where it appeared that two men, one of whom was an officer, visited the house, and the officer testified to conduct on the part of his companion and an inmate tending to .show acts of prostitution. The name of the companion was not indorsed on the information, nor was he sworn as a witness on the preliminary examination. And it was held that the refusal of the trial court to compel the prosecuting attorney to call him as a witness was not error, the transaction testified to not constituting the offense charged, and only being one of the circumstances in proof.