text:
    POSS v. MEADER.
    1, Bills and Notes — Bona Eide Holder — Evidence.
    In an action on a promissory note, given for a motor truck: ■which proved defective, the plaintiff, who was president, of the payee, and who took the. notes as payment upon advances that he had made to the corporation, was entitled to a directed verdict, as a holder in due course,, upon uncontradicted evidence showing that plaintiff caused them to he sent to his brother-in-law, the secretary of the company, for collection; that the latter acted in plaintiff’s behalf and was not acting for the corporation, though plaintiff testified that the said secretary had told him that the notes were at the factory and had mentioned his official connection with the payee.

      2. Same — Notice.
    Any notice tRat may Rave come to plaintiff of tRe existence of a contract between tRe payee and maker of tRe note was insufficient to cRarge Rim witR notice of breacR of tRe contract of warranty. And tRe fact tRat Re was president of the corporation does not affect the application of tRe rule.
    3. Same — Hearsay—Agency. ’
    It was error to admit in evidence statements claimed to Rave been made by tRe corporate secretary to defendant relating to tRe time wRen plaintiff purcRased tRe notes, to cRarge Rim witR notice of alleged defects.
    Error to Wayne; Hally, J.
    Submitted October 15, 1915.
    (Docket No. 114.)
    Decided December 21, 1915.
    Assumpsit by Frank R. Poss, in justice’s court, against Squire M. Meader on certain promissory notes. From a judgment for plaintiff defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Corliss, Leete & Moody, for appellant.

      Frank C. Golden, for appellee.

      Whether an officer or employee of corporation is chargeable with its knowledge of infirmities in commercial paper purchased from it is discussed in notes in 48 L. R. A. (N. S.) 65, L. R. A., 1915D, 1099.

   Stone, J.

This suit was brought by the plaintiff as the indorsee and holder, against the defendant, as maker, of seven promissory notes for $50 each, dated August 31, 1912, due in successive months after date, being seven out of twelve promissory notes, given by the defendant to the Poss Motor Company, a Michigan corporation, in part payment of the purchase price of a second-hand automobile truck, manufactured by said company; the total purchase price being $800. The suit originated in justice’s court. The plaintiff declared on all the common counts, and especially upon said promissory notes. The notes were alike in form, except as to date of maturity. The first note read as follows:

“$50.00. Detroit, Mich., Aug. 31, 1912.
“September 30, 1912, after date, I promise-to pay to the order of Poss Motor Company fifty dollars at the First National Bank of Detroit. Value received. Int. 6% per annum. S. M. Meader.”
Indorsements:
“Poss Motor Co.,
“By R. R. McKinley, Treas.
“F. R. Poss.” '

Under the plea of the general issue, the defendant gave notice of “an absolute failure of consideration, in that the car was absolutely useless,” and of breach of “express and implied warranty of said car,” and that plaintiff, “as assignee or indorsee of said notes, took the same with full knowledge of failure of consideration as aforesaid, and that the said plaintiff is not a holder in due course.”

Upon the trial in the circuit court the several notes were produced, and one of plaintiff’s attorneys testified to the indorsement of the Poss Motor Company, by R. R. McKinley, Treas., and that the first note came into his hands in behalf of the plaintiff, from the First National Bank of Detroit, as nearly as he could recall it, within a week or so after it became due, and he thought before the second note became due; and that the other notes came to his hands from the same bank, in each case after they became due and were dishonored, under instructions from Mr. Poss to the bank, after the first note was dishonored, to deliver them to him from time to time after they became due. Witness further, testified to the amount due. The notes were then received in evidence, and the plaintiff rested.

Thereupon the defendant called as a witness Robert R. McKinley, who testified that he was at the time of the making of the notes the treasurer and secretary of the Poss Motor Company; that the plaintiff was the president of the said company; that the witness was the brother-in-law of the plaintiff; and that the notes sued upon were turned over to Mr. Poss as payment on a loan that he made to the company, immediately after the notes were given. He further testified on direct examination as follows:

“Q. Did they ever come back into your possession, or the possession of the Poss Motor Company?
“A. It seems to me that Mr. Poss gave me the note, or told me to write to Mr. Meader. At that time I did considerable of Mr. Poss’ business, owing to the fact that he was out of the city a good deal. I do not just recall whether I notified Mr. Meader that the note was due, or not. It seems to me I* did. They did not come back into the possession of the Poss Motor Company; no, sir.
“Q. Now, your possession, how about that?
“A. He may have given me the note to try to collect. As I recollect, he did. * * He would probably go away once a month for a week or ten days. During those periods that he was away, I transacted a portion of his business for him. That was during all the time that the Poss Motor Company wafe in existence, and I was acting as the secretary and treasurer. While he was here, he was not there in active management of the Poss Motor Company, he had no office there, his office was in the Penobscot building. He left the Poss Motor Company business to the officers of the company, general manager principally. In so far as his personal, private dealings with the Poss Motor Company were concerned, he left them to me, in some cases, I might say in quite the majority; yes, sir. I do not recall that I called on Mr. Meader about the 5th of November, 1912. I would not say that I did not call on him. I believe.! did make one trip over there. I do not remember the date. That was not as a representative of the Poss Motor Company; that was for Mr. Poss. I do not recall whether it was one or two notes that were due then. I presume I requested him to pay them at that time. I do not recollect him asking me where the notes were at that time. I would not say that he did not ask me. I do not recollect stating to him that they were over in the Poss Motor Company’s office. I would not state that I did not state that to him.”

On cross-examination, he testified:

“Q. Mr. McKinley, there isn’t any question, is there, that these notes were indorsed and delivered to Mr. Poss, either on the same day they were made, or within a day or two thereafter?
“A. No, sir.
“Q. For money which he had before advanced, or was then advancing?
“A. Money which he had advanced just about that time.
“Q. Didn’t he advance one note of $2,500 just at the time of this transaction?
“A. Just about that time; yes, sir. I think I stated it was within a few days before or about that time. There were some other notes of some other purchaser at the same time, Dixie Laundry Company and others, given to him. * * *
“Q. Those notes were indorsed by him after they were assigned to him, and before they were in the First National Bank, for collection, were they not?
“A. Yes, sir.
“Q. And if you had a note or notes to present, you got them from the First National Bank, didn’t you ?
“A. Yes. * * * I was acting for Mr. Poss at the time when I presented this note, or the notes — if there were two — to Mr. Meader.”

On redirect examination, he testified:

“Q. When you got notes from Mr. Poss to present to the makers for payment, you did it in that capacity, that you were acting for him as a private friend and relation, did you not?
“A. Certainly.”

There was no testimony which in any way contradicted or modified this testimony of Mr. McKinley, except the following testimony of the defendant, which was received over the objection and exception of plaintiff, to wit:

CiQ. Were you ever requested to pay that note, or any other one of these notes, after that? (Referring to a conversation with Mr. Wilson, the sales agent from whom he got the car.)
“A. Yes, sir; that was not until November, I think, something from the 10th to the 15th, something along there, I do not know exactly, November, 1912, Mr. McKinley, the secretary and treasurer of the Poss Motor Company, came to see me about them then. He told me at that time that he was secretary and treasurer. That is all I know, I did not know it. At the time he visited my place of business, he introduced himself as such. I did not see the notes there. I asked him where the notes were, and he said — I think he said they were to the Poss factory, at the factory.”

The defendant gave testimony at great length relating to the trouble which he had with the car, and tending to show that it was worthless, and that there was a total want of consideration for the notes. This evidence was received against the objection of plaintiff that it was immaterial, and irrelevant, and its admission was excepted to.

At the close of the testimony, the plaintiff requested the court to direct a verdict in his favor, which request was denied.

The court, in its charge to the jury, after reading sections 54, 58, .and 59 of the negotiable instruments law (Act No. 265, Pub. Acts 1905), charged as follows :

“Now, gentlemen of the jury, the defendant asks me to charge, and I do charge you, if you find from the evidence that the plaintiff, Frank R. Poss, had no notice of the failure of the consideration for which the notes were given, constructive or actual, you shall find that he was a holder in due course and not subject to the defense of failure of consideration. (In this connection you are charged that it is not necessary that the holder of a negotiable note should have actual notice, but that such notice may be constructive notice; and you are instructed constructive notice may be such notice as would naturally arise from the relation of the holder to the indorser and all the other circumstances governing the transfer of the notes.) (You are further instructed that if you find from the evidence that the plaintiff, Frank R. Poss, had notice, actual or constructive, of the failure of consideration for which those notes were given, you shall find that he was not a bona fide holder in due course, and you shall further find that he holds said notes subject to all defenses that might have been made or may be made, against the Poss Motor Company, payee in those notes.) (If you shall find that Frank R. Poss was not a bona fide holder, that is, a holder in good faith, without notice, and you should further find that there was a failure of the consideration, that is, that the article for which these notes were given did not possess the merit that it was represented by the vendor to possess and that it did not do the work that the defendant purchased it to do, your verdict should be no cause of action.) Now, there is one exception which I desire to put to that last request, which I think you have a right to take into consideration. You will notice that it says 'If you shall find that Frank R. Poss was not a bona fide holder, that is, a holder in good faith without notice, and you should further find that there was a failure of the consideration, that is, that the article for which these notes were given did not possess the merit that it was represented by the vendor to possess and that it did not do the work that the defendant purchased it to do, your verdict should be no cause of action.’ You have no right to reach a verdict for no cause of action under that charge unless you also find that the trial given by the defendant of this article was a reasonable trial, and you have no right to reach that either unless you also find that this article was turned back to the company, and it being turned back to the company was acquiesced in by the company, and that all of these things transpired, you see, to the knowledge of Mr. Poss, and before Mr. Poss became possessor of the notes, because if Mr. Poss in due course became possessor of the notes before any of these things came into existence and had paid value for them before that time, what happened subsequently to that time, even though it did reach the knowledge of Mr. Poss, would not make him a holder in bad faith, or would not constitute him a holder in such a way that he would be charged with these things, that transpired after he became possessed of the notes.
“Now, on the part of the plaintiff, it is said to you here that these notes were indorsed over to Mr. Poss one or two days after they were made. Upon the part of the defendant it is said to you here that some time in November Mr. McKinley, in paying a visit to the defendant, asked him at that time, not on behalf of Mr. Poss, but on behalf of the Poss Motor Company, to pay' the notes that he had given for this car. * * *
“Ndw, there is only one thing that I desire to charge you upon, and that is this: Certain testimony has been given here of the relationship which existed between these parties. I do not know of any one feature of the testimony, you see, which is disputed concerning Mr. Poss, Mr. Poss' holdings in this company, his official connection with the company, his blood or affinity relation with the secretary and treasurer of the company. Now, those set of facts, or this set of facts rather, not being disputed, the question arises: Does that present a settled legal situation? I think it does present a settled legal situation. That legal situation is this: That if Mr. Poss did not know of this contract and of the notes which were given in connection with this contract, he is in law bound to know of this contract and of the fact that these notes were given in connection with this contract. Now, even though he did know that, you understand, if immediately after that the notes came to his possession, he would still be a holder in good faith, unless you find that these notes did not come into his possession until some time in November, according to the testimony of Mr. Meader.”

The trial resulted in a verdict and judgment for the defendant, and the plaintiff has brought the case here for review. Errors are assigned as follows:

(1) Because the court refused to direct a verdict for plaintiff.
(2) Because of the admission of evidence as to an alleged failure of consideration for the notes sued upon.
(3) Because the court erred in admitting the testimony of defendant as to a conversation between himself and the witness McKinley, above referred to.
(4, 5, 6) Because the court charged the jury in the language embraced in the parentheses.
(8) In permitting the jury to find, in the absence of any competent evidence, that the notes came into the hands of the plaintiff in November.
(10) In submitting to the jury, as evidence of the time when the notes came into the possession of plaintiff, the testimony of defendant as to the conversation had with the witness McKinley.

1. In our opinion, in the state of the record at the close of the testimony, the plaintiff was entitled to a directed verdict. At the time when by the undisputed evidence the notes were negotiated to the plaintiff, he had no notice of any infirmity in the instruments, or defect in the title of the party negotiating them. In fact, there was no evidence that there was any infirmity in the instruments, or defect in the title of the payee. If plaintiff had notice or knowledge that a contract, as the basis of said notes, existed, that would be no defense unless he also had notice, at the time he bought the notes, that there had been a breach of the contract, of which there was no evidence. Hakes v. Thayer, 165 Mich. 476-489 (131 N. W. 174). Nor would the fact that plaintiff was the president of the company, the payee of the notes, change the application of the rule.

2. We are of the opinion that the trial court erred in permitting the defendant to testify to the conversation between himself and the witness McKinley, and to the statement of said McKinley which was excepted to, and in submitting such testimony to the jury as substantive evidence of the time when the notes were purchased by the plaintiff.

We think that the errors above pointed out were prejudicial to the rights of the plaintiff, and were probably controlling of the verdict.

The judgment of the circuit court is therefore reversed, and a new trial granted.

Brooke, C. J., and Person, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    HICKS v. FINBARG.
    1. Mechanic’s Liens — Description oe Real Property — Notice of Claim.
    A verified notice of mechanic’s lien claimed hy a contractor, describing the property as the “W V2 of lot 12, which lies across Main street in the village of C. from the property owned by-and between said Main street and the D. & M. Railway Company right of way and lies right west of lots 12 and 13, and the E % of lot 11 in said village of C. 'owned and occupied by this affiant,” sufficiently described the premises on which complainant constructed a cement wall and cellar to create a valid lien, the correct description being lots 11 and 12, block 2, Hosmer & Earl’s Addition to the village of C., excepting therefrom 40 feet off the east side of said lot 12; where the contestant had accepted a mortgage with knowledge that the construction work was in progress and where the mortgage described the property correctly. See 3 Comp. Laws, § 10714.
    2. Same — Conveyancing.
    False and impossible parts of descriptions in conveyances may be rejected, when by doing so a good description remains.
    3. Same — Identity—Initial.
    The objection that the owner’s name was given as M. Finbarg, instead of giving in full the Christian name of the party was not fatal to the lien, in the absence of a dispute concerning his identity.
    Appeal from Ottawa; Cross, J.
    Submitted October. 22, 1915.
    (Docket No. 169.)
    Decided December 21, 1915.
    Bill by Art Hicks against Meyer Finbarg and the People’s Savings Bank for the enforcement of a mechanic’s lien. From a decree for complainant, defendant bank appeals.
    Affirmed.

      Lillie, Lillie & Lillie, for complainant.

      Dean S. Face, for defendant bank.
   Stone, J.

The bill of complaint herein was filed to enforce a mechanic’s lien. The question involved seems to be as to the sufficiency of the description of the premises contained in the statement of lien filed, as affecting the defendant People’s Savings Bank, which alone has appealed from the decree below.

From the statement of facts, in lieu of evidence, contained in the record, we gather the following facts:

On October 27, 1913, the defendant Meyer Finbarg was the owner of a piece of land described as lots. 11 and 12, of block 2, of Hosmer & Earl’s addition to the village of Coopersville, Ottawa county, Mich., except therefrom 40 feet off the east side of said lot 12. On that date the complainant and the defendant Finbarg made and entered into the following written contract, viz.:

“It is agreed between M. Finbarg, party of the first part, and Art Hicks, party of the second part, that, the party of the second part will build, and furnish all material, a cement building and basement of the following size, 35x35 feet, 10 feet high in front and 8 in rear, cellar must be 7 feet deep in the clear, have a cement floor three inches thick, c'ement supporters for upper floor made of blocks, walls to be made of cement blocks above the ground and four feet of concrete in the ground, sidewalk in front of building and in rear of building, five feet wide by thirty-five feet for rear sidewalk, and front sidewalk 2 feet wide by 35 feet. Also a tile shall be laid from cellar to sewer of 6 in. tile. Also a chimney shall be built, flue 10 in. by 10 in., 22 feet high. Then cement steps shall be built in front of building 2 feet wide, also wooden frames will be put up on place by party of the second part. The party of the first part agrees to pay four hundred and fifty dollars upon completion of work.
[Signed]
“Aet Higks.
“M. Finbaeg.”

This agreement was drafted by a Mr. Ter Avest, the cashier of the said People’s Savings Bank, defendant herein, and was signed by the parties thereto, within the knowledge of the said cashier.

Immediatetly after the execution of said contract, the complainant commenced to construct a building as described in the contract, upon a part of the piece of land above described. The construction work was continued with certain temporary interruptions from 'October 27, 1913, until March 30, 1914. There was standing upon a part of said piece of land, at the time of the execution of said contract, an old building of frame construction. Previous to December 10, 1913, the complainant constructed a wall under said old building. On said last-named date the parties to the original contract made a further agreement in writing, on the back of the paper on which the first contract was written, in the following words:

“Dec. 10, 1913.
“Upon completion of the building according to this contract, M. Finbarg agrees to pay forty-five (45) dollars, in addition to contract price, for putting wall under old building belonging to him. Building to be completed in reasonable time.
“M. Finbarg.
“Art Hicks.”

The land owned by defendant Meyer Finbarg consists of the lot, and part of a lot above described. This land lies across the street from a piece of land owned by Frank Hedges, and is between the street, called Main street, and the railroad known as the “D. & M.” Lots 11 and 12 are 50 feet wide, respectively, and the lots in block 2 of Hosmer & Earl’s addition are numbered in order from the west toward the east, thus, 10, 11, 12, 13, No. 13 being farthest east. Lots 13 and that part of lot 12, which was not owned by defendant Finbarg, were and are owned and occupied by the complainant. The buildings are actually located upon said land as follows: The new building constructed by the complainant begins at the east line of Finbarg’s land, and extends, westward 35 feet, so that its west wall touches the east wall of said old building, under which the new wall was built as above mentioned. The old building extends from that line west to the west line of the property belonging to defendant Finbarg.

On January 13, 1914, the owner, Meyer Finbarg, executed a mortgage to the defendant People’s Savings Bank, of Coopersville, Mich., for the sum of $1,-000, covering the property described in the first paragraph of said statement of facts, which was recorded in the office of the register of deeds, of said county on the following day. This mortgage was executed after the complainant had begun work upon the buildings. As a result of the construction of said new building, and the wall under the old building, in pursuance of said agreements, and after the payment of certain sums by said defendant Finbarg to complainant, there was due to said complainant from said defendant Finbarg, on April 23, 1914, the sum of $207, which was, and is. still, unpaid. The last of the work, and materials furnished by said complainant, were on March 30, 1914. On the 23d day of April, 1914', the complainant made and filed with the register of deeds of said county a verified statement and notice of his lien, in which the premises were described as foilows:

“And that the premises are described as the west one-half of lot twelve, which lies across Main street in the village of Coopersville, from the property owned by Frank Hedges, and between said Main street and the D. & M. Railway Company right of way, and lies right west of lots twelve and thirteen, and the east one-half of lot eleven, in said village of Coopersville, owned and occupied by this affiant.”

In another part of said statement of lien the old building is referred to as an “old building belonging to Finbarg.”

The trial court found for the complainant for the amount claimed by him, and that the same was a lien on the premises described in the notice of lien, and that said bank knew of the work and the construction of said new building at the time said mortgage was taken, and that said mortgage lien would be a subsequent lien to complainant’s lien for the work and material done on said building.

“And it is further found that the land described in said mortgage from said Finbarg to said People’s Savings. Bank of the village of Coopersville, Mich., is as follows: Lots 11 and 12, block 2, Hosmer and Earle’s addition to the village of Coopersville, excepting therefrom 40 feet off the east side of said lot 12; and that Finbarg and People’s Savings Bank understood and knew that the building that said complainant so built for said defendant Finbarg was on the land described in said mortgage, and that the same is, in fact, the land described in the notice of lien, although described in different words and figures.”

Upon this appeal it is the claim of the complainant that the description in the statement and notice of lien is sufficient to locate the land on which the building was erected, and is sufficient for the purpose of a lien. On the other hand, it is the claim of appellant that the statement is insufficient in the following particulars:

(1) The description of the premises therein fails to identify any land or property whatever, and is void.
(2) The name of the owner of the premises supposed to be charged with a lien is no,t correctly given.

Counsel for appellant calls attention to the language of the statute (section 10714, 3 Comp. Laws), which provides that the -statement filed with the register of deeds shall contain “a correct description” of the property to be charged with the lien. He does not claim that a description under this statute must follow any prescribed form of words, or that it must follow any description which had been previously used, but that it must identify some certain premises; in other words, that the premises must be identified by the description used, although external evidence may be used in applying the description. Counsel refers to Sheldon, Kamm & Co. v. Bremer, 166 Mich. 578 (132 N. W. 117), wherein we held that mechanics’ liens rest in strict right, not upon mere equities. It is also urged that the finding of the lower court upon the subject of description was not supported by any evidence. It was stipulated by - counsel that the “statement of facts” in the record should be received by this court “with the same effect as a transcript of the evidence in said suit duly settled and certified by the circuit judge.” Turning to such statement, we first find a correct description of the premises, as containéd in appellant’s mortgage. We further find that:

“Immediately after the execution of said contract, the complainant commenced to construct a building as described in the contract upon a part of the piece of land above described.”

Also:

“There was standing upon a part of said piece of land at the time of the execution of said contract, an old building of frame construction.”

It further appears as a fact that the land owned by defendant Finbarg

“lies across the street from a piece of land owned by Frank Hedges, and is between the street called Main street, and the railroad known as the ‘D. & M.’ Lots 11 and 12 are 50 feet wide, respectively, and the lots in block 2 of Hosmer & Earl’s addition are numbered in order from the west toward the east, thus, 10, 11, 12, and 13 from the west, No. 13 being farthest east. Lot 13 and that part of lot 12 which was not owned by Finbarg were and are owned and occupied by the complainant, Art Hicks.”

Applying the rule as stated by counsel for appellant that, “to constitute a valid lien under the statute, the lot or land on which the building is situated should be described with such certainty that it may be definitely ascertained and located,” the pertinent question is whether there was sufficient evidence to support the finding, that “the land described in said mortgage is in fact the land described in the notice of lien, although described in different words and-figures.”

We are of the opinion that, although the description in the statement and notice of lien was ambiguous, yet that there was sufficient evidence to identify it as the same land as that described in the mortgage. In addition to what has been already stated, it appeared that the land owned by defendant Finbarg was across the street from a piece of land owned by Frank Hedges, was between the street called Main street and the railroad known as the “D. & M.,” and was bounded on the east by land owned and occupied by the complainant. Is there any doubt that the premises described in the statement and notice of lien, in the light of this record, could be definitely ascertained and located? We think not. False and impossible parts of descriptions in conveyances may be rejected, where, by doing so, a good description remains. Tuthill v. Katz, 163 Mich. 618 (128 N. W. 757), and cases there cited.

2. The remaining claim urged by appellant’s counsel is that the statement of lien is insufficient because it fails to give the name of the owner of the premises, and does not show that his name is unknown. The specific objection is that the name of M. Finbarg was used, the correct name of the defendant being Meyer Finbarg. In the contract signed by the parties, the name M. Finbarg was used throughout, and it was so signed. As there is no dispute as to the identity of the person or party, we think this claim purely technical, and without merit.

The decree of the circuit court is affirmed, and the complainant will recover his costs in this court against the defendant People’s Savings Bank.

Brooke, C. J., and Person, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Kuhn, J.

text:
    PENTLAND v. JACOBSON.
    1. Sales — Evidence—Warranties—Contracts—Inspection.
    Plaintiff sold defendant a quantity of potatoes which were delivered and were later found to be frozen. A tender back was made by the defendant, and plaintiff brought an action for the purchase price; defendant claimed that plaintiff had expressly represented and warranted that the potatoes were in fit condition for use. The testimony showed that at the time of delivery of the first lot the defendant found a number of pounds of frozen potatoes and that the plaintiff said that the rest were all right, that a few had been scattered about and been frozen in his cellar. The court submitted the case to the jury on the theory that if there was no express warranty defendant might rely upon the implied warranty. Held, that the testimony as to the representation of the plaintiff, though uncertain, or meagre, was sufficient to support a verdict for the defendant.

    2. Same — Implied Warranty — Inconsistent with Express Warranty.
    Under Act No. 100, Pub. Acts 1913, § 15, and subd. 6, an express warranty does not preclude the existence of and relian.ce upon an implied warranty unless the two are inconsistent.
    3. Same — Instructions.
    The court did not err in charging the jury that if defendant did not examine the potatoes he was entitled to rely upon the implied warranty of fitness or quality, and upon the statement made by the plaintiff that it would be his duty, after finding defects in the potatoes, to notify plaintiff within a reasonable time, that what was a reasonable time' would be for the jury, that if he made no examination but relied upon the warranty that the potatoes were' fit for food and were merchantable, afterwards finding that they were not merchantable or fit for food, and notified plaintiff of the fact within a reasonable time, he would not be required to pay for the potatoes.
    Error to Luce; Fead, J.
    Submitted October 18, 1915.
    (Docket No. 152.)
    Decided December 21, 1915.
    Assumpsit by Moses Pentland against John K. Jacobson for the purchase price of certain potatoes. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Brown & Brown, for appellant.
    . Warner & Sullivan, for appellee.

      On implied warranty of fitness of property bought for special purpose, see notes in 22 L. R. A. 187, 15 L. R. A. (N. S.) 868, 31 L. R. A. (N. S.) 783; 34 L. R. A. (N. S.) 737.

   Kuhn, J.

In this action the plaintiff seeks to recover for potatoes delivered to the defendant in accordance with a verbal contract entered into by the parties; 288% bushels of potatoes were actually delivered, the value of which was agreed upon to be $151.20. The defendant contested the action brought for this amount because, it is his claim, there was an express warranty as to the condition of the potatoes, whereas, as a fact, they were frozen at the time of delivery. Upon the discovery of the defective condition of the potatoes they were tendered back by the defendant, and the issue thus formed was submitted to a jury,, who returned a verdict of no cause of action, upon which judgment was duly entered.

It is the contention of the plaintiff and appellant that the record shows conclusively that, if the potatoes were frozen, they were frozen after delivery, and that the defendant accepted the first load after inspection, and the other three loads without using the opportunity to inspect. It appears that, when the first load of 113 bushels was delivered under the contract, in the presence of both parties, the defendant culled out 35 pounds of frozen potatoes and as to what occurred at that time he testified as follows:

“I said I was a little afraid of those potatoes, picking out as many as that, just rolling them in. He recommended them to be O. K. He said some potatoes got scattered around and got into the sacks; some that had been frozen in his cellar got into the sacks.
“Q. What did he say at that time about the rest of them, whether or not they were all right?
“A. Well he didn’t say anything about the rest of them, except that he put those in.”

On redirect examination he testified:

“Q. Now, I understood you to say that when the first load was delivered, and you discovered that there was some frozen potatoes there, that Mr. Pentland told you that was a few that had gotten in that was frozen on top, or on one end?
“A. That is what he said.
“Q. And that the rest were all right?
“A. That is what he said.
“Q. Whether or not you relied on his statement to that effect?
“A. I relied on his statement and had his word for the potatoes. That is the reason why I didn’t cut open the potatoes and examine them carefully to see whether they were frozen or not.”

The case was submitted to the jury upon the theory that an express warranty had been established, and also that, if they found no such express warranty had been established, an implied warranty might be relied upon by the defendant. This seems to be sanctioned by the uniform sales law (subdivision 6 of section 15 of Act No. 100, Pub. Acts 1913), providing that:

“An express warranty or condition does not negative a warranty or condition implied under this act unless inconsistent therewith.”

Plaintiff contends that the testimony of the defendant with reference to the express warranty is conflicting, and that the question should not have been submitted to the jury to allow them to speculate as to this feature of the case. It is true that the testimony with reference thereto is somewhat uncertain and meager, but we are of the opinion that there was sufficient evidence to submit the question to the jury under instructions which on examination are found to be appropriate and correct. The jury were in a position to notice the manner in which this testimony was given by the witness, and thus determine its credibility. It is also significant in this connection that the plaintiff, in testifying with reference to the contract, said:

“I understood the contract called for good, merchantable potatoes, and did not expect him to pay for anything else, and do not expect him to now. If he didn’t get good potatoes, I don’t want him to pay for them.”

Subdivision 1 of section 15 of said Act No. 100 provides :

“Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill and judgment, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose.”

Subdivision 3 provides:

“If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed.”

The court charged the jury as follows:

“If, on the other hand, he did not examine the potatoes, then he is entitled to rely upon the implied warranty and upon the statement made by the plaintiff, and it would be his duty, after having found there were defects in the potatoes, if he so found, to notify the plaintiff within a reasonable time. If he did not notify the plaintiff within a reasonable time, and what is a reasonable time is a question for you to determine from the evidence, then he would be held to have to pay for the potatoes. If, upon the other hand, he made no examination, but relied upon the warranty that they were fit for food, that they were merchantable, and after-wards found that they were not proper, were not merchantable, and within a reasonable time notified the plaintiff of that fact, then he would not be required to pay for the potatoes.”

After carefully examining the evidence in this record, we are of the opinion that the questions involved were submitted to the jury under proper instructions, and that there is sufficient evidence to justify the verdict reached by the jury.

The jüdgment is affirmed.

Brooke, C. J., and Person, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    PATEK v. RYSKEWIECZ.
    1. Judgment — Justices of the Peace — Security for Costs— Estoppel.
    Where the defendant in a suit in justice’s court secured an order of the court to compel the plaintiff to file security for costs, and afterwards removed the judgment by certiorari to the circuit court, claiming that plaintiff had failed to comply .with the order, and that security offered in the form of a paper signed by a surety was insufficient and invalid because the surety had not appeared before the justice, he could not recover the costs tased in the circuit court, after judgment in his favor, from the,surety in the undertaking; he was bound by the judgment, and precluded or estopped from basing his action on the writing which his counsel had previously argued was invalid.'
    2. Same — Consideration.
    In the light of the holding of the court, no sufficient consideration for the instrument whs shown and- it was not a valid common-law obligation.
    3. Same — Appeal and Error.
    The question whether the assignment to plaintiff of the judgment carried with it said undertaking for costs will not . be considered where it was not briefed or raised by the defendant.
    Error to Gogebic; Cooper, J.
    Submitted October 15, 1915.
    (Docket No. 123.)
    Decided December 21, 1915.
    Assumpsit in justice’s court by Julius J. Patek against William Ryskewiecz on an undertaking to secure plaintiff against the costs of an actioh. Defendant appealed to the circuit court from an adverse judgment. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Julius J. Patek, in pro. per.

      Curtis Buck (Belmont Waples, of counsel), for appellee.
   Stone, J.

This case originated in justice’s court. It was tried before the court without a jury. The trial court filed a finding of fact and conclusion of law. The finding of fact was based upon a stipulated statement of the facts signed by the attorneys for the respective parties, which was as follows:

“(1) That on the 10th day of October, 1911, one Mary Talkowski, as plaintiff, commenced a suit in assumpsit against one Peter Puksta, as defendant, by ordinary summons, returnable before the aforesaid justice of the peace, at his office in the city of Ironwood, in said county, on the 18th day of October, 1911. That the defendant, Peter Puksta, never appeared generally in said suit before the said justice of the peace, nor pleaded in said cause, but on the return day of said summons the said defendant appeared specially and moved that the plaintiff, Mary Talkowski, be required to give in said cause sufficient security for costs and that in default thereof said suit be dismissed; and the said justice made and entered an order in said suit, that said plaintiff, Mary Talkowski, give security for costs in said cause. That thereupon the said plaintiff in said suit, Mary Talkowski, presented and delivered to the said justice of the peace a certain written instrument in words and figures as follows:
“ ‘County of Gogebic — ss.:
“ ‘Mary Talkowski v. Peter Puksta.
“ ‘Before John 0. Gustafson, a Justice of the Peace of Said County. The said plaintiff having been required by the said justice, for good reasons shown, to give security for costs, therefore, I, W. Ryskewiecz, do hereby become security that said Mary Talkowski shall pay the said Peter Puksta any costs which may be adjudged against her, the said Mary Talkowski, in the above-entitled suit.
“ ‘Dated October 18, 1911.
“ ‘W. Ryskewiecz.’
“That said W. Ryskewiecz had not appeared before the said justice on said day nor signed the purported security for costs in the presence of said justice, nor signed an undertaking in writing to that effect, upon the docket of the said justice in said cause. That thereupon the defendant then and there moved the said justice that said cause be dismissed for want of sufficient security for costs, because the same was not an undertaking, in writing, upon the docket of the justice and signed by the surety upon said docket in the presence of said justice, which motion the justice at the request of said Mary Talkowski overruled and at her request proceeded with a trial of said cause, and after hearing plaintiff’s proofs, the said justice did on said day render judgment in favor of said Mary Talkowski, as plaintiff, and against the said Peter Puksta, as defendant, for $30 damages and $4.15 costs of said suit.
“(2) That the foregoing facts were alleged in an affidavit for certiorari to remove the said judgment to the circuit court for the county of Gogebic, made on behalf of said defendant, Peter Puksta, and in said affidavit there was and is a further allegation, as follows:
“ ‘Deponent further says that the said pretended judgment is erroneous and void for the reason that the said justice erred in holding that the filing with him by the plaintiff of the piece of paper mentioned, at the time and under the circumstances as stated, was a compliance with said Comp. Laws 1897, § 713.’
“(3) That the said Peter Puksta duly removed the said judgment to the circuit court for said county of Gogebic, by such certiorari, and that after a hearing there had, the said circuit court on the 30th day of March, 1912, reversed the-judgment of said justice of the peace, with costs, taxed by consent, in open court, at the sum of $22, including an attorney fee of $15 in favor of the plaintiff herein, the attorney for Peter Puksta in said certiorari proceedings.
“ (4) That on said 30th day of March, 1912, the said Peter Puksta duly assigned the said judgment to the plaintiff herein, and plaintiff since then has been and now is the owner thereof.
“(5) That there were no errors in the judgment of the justice alleged in the affidavit for certiorari, upon which the writ was allowed and issued, and none are shown by the return of the justice to said writ, except as above stated.
“(6) That the plaintiff herein, prior to the commencement of this suit, repeatedly demanded of both the said Mary Talkowski and the defendant in this cause, that they pay to the plaintiff the costs so awarded to the said Peter Puksta on reversal of said judgment and that they each refused to pay the same.”

The conclusions of law were as follows:

‘T. The said judgment rendered by the said justice of the peace, referred to in the foregoing statement of facts, having been reversed on the sole ground that no legal undertaking for security for costs was furnished by the said plaintiff in said judgment, as ordered by the said justice, there was and is no consideration to support the undertaking of the said defendant herein as evidenced by his signature to the paper set out in the first paragraph of the foregoing finding of facts.
“2. Judgment therefore will be rendered in favor of the defendant, with full costs.”

Exceptions were duly filed by appellant. A judgment for defendant having been entered, the plaintiff has brought the case here upon writ of error.

By his assignments of error the following propositions are presented:

(1) That the court erred in finding from the stipulated facts that in view of the said judgment rendered by the said justice of the peace referred to in the statement of facts in said stipulation contained, having-been reversed on the sole ground that no legal undertaking for security for costs was furnished by the said plaintiff in the said judgment, as ordered by the said justice, there was, and is, no consideration to support the undertaking of the said defendant herein, as evidenced by his signature to thé paper set out in the first paragraph of said stipulation, because the suit is founded upon the final judgment rendered in said circuit court reversing that of the justice of the peace, as evidenced by the journal entry of said court, and not upon any reason or reasons why such judgment was reversed and the reason or reasons for the reversal of such judgment are immaterial.
(2) That the court erred in finding from the stipulated facts in said cause that the said defendant did not undertake and promise in manner and form as the plaintiff, hath in his declaration in said cause complained against him.

By the pleadings in the case, the question of no consideration was raised. The plaintiff here seeks to hold defendant liable on the writing signed by the latter, which writing, by the action and instigation of the plaintiff himself, as attorney for said Puksta, defendant in the original suit, was held, in the certiorari case invalid, and not to be a good and sufficient security for costs. As already appears, in the affidavit for certiorari there was the following statement:

“Deponent further says that the said pretended , judgment is erroneous and void for the reason that the said justice erred in holding that the filing with him by the plaintiff of the piece of paper mentioned at the time and under the circumstances as stated, was a compliance with said Comp. Laws 1897, § 713.”

It further appears by the stipulated facts:

“That there were no errors in the judgment of the justice alleged in the affidavit for certiorari upon which the writ was allowed and issued, and none are shown by the return of the justice to said writ, except as above stated.”

We think the trial judge was therefore warranted in finding that such' judgment was reversed, on the sole ground that no legal undertaking for security for costs was furnished, and that said finding was material. The said Puksta and his attorney, the present plaintiff, having asserted that said judgment was void for the reason, stated, and having induced the court so to hold, should be now precluded and es-topped from claiming that said paper was, and is, a valid security for costs. 16 Cyc. p. 796. We are also of the opinion that there was no valid consideration for such undertaking or promise, and therefore it cannot be said in the light of the result of the first case, that the writing was a valid common-law obligation.

In Wilson v. Davis, 1 Mich. 156-162, the plaintiff sued defendant on a writing purporting to be a stay of execution, on a judgment, which defendant had signed as surety. The judgment which it was given to stay was held to be void, so that the stay did not accomplish the purpose for which it was given, to wit, to postpone the issuance of a valid execution, because no valid execution could be issued on a void judgment. The court said:

“We think the judgment read in evidence * * * was void, and, therefore, cannot furnish a valid consideration for the promise of the defendant set forth in plaintiff’s declaration.”

Plaintiff cites in support of his position the cases of Brion v. Kennedy, 47 Mich. 499 (11 N. W. 288), and Hascall v. Brooks, 105 Mich. 383 (63 N. W. 413). We do not think those cases support the plaintiff’s position.

In the Brion Case a security for costs undertaking, substantially like that here involved, was given. It was held to be a good common-law undertaking, because it effected the purpose for which it was given, to wit, to enable the plaintiff to go on with his suit. As it was acquiesced in as effecting such purposes, this court held it to be supported by a sufficient consideration. No question was raised as to the validity of the judgment. In the instant case, the judgment, because of the invalidity of the instrument sued upon, was held to be void and of no effect. That ruling became the law of the case, as it was final, and not appealed from.

In the Haseall Case, an insufficient appeal bond was given. In the circuit court the appeal was dismissed because the opportunity given by the court to replace the bond with a valid one, and so maintain the case in that court, was not embraced. It was held that the bond given, though not sufficient in the amount of the penalty, conferred jurisdiction upon the court to act in the premises. In other words, the defective bond accomplished the purpose of getting the case into the circuit court, and giving that court jurisdiction. There was therefore a valid consideration to support the obligation of the surety on the bond. Not so in the instant case, according to the judgment on certiorari.

Another question suggests itself, and that is whether the assignment of the judgment to the plaintiff carried with it the title to the undertaking. See Forrest v. O’Donnell, 42 Mich. 556 (4 N. W. 259). As the question is not raised, or briefed, we express no opinion upon it.

We find no reversible error in the record, and the judgment of the circuit court is affirmed.

Brooke, C. J.s and Person, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    DALLAVO v. DALLAVO.
    1. Cancellation of Instruments — Duress—Husband and Wife— Divorce.
    In. a suit to cancel certain conveyances and deeds between complainant and his wife in settlement of their marital affairs, and to induce defendant to consent to let a decree of divorce stand between the parties which she claimed had been procured by his fraudulent representations concerning her place of residence, evidence of a conflicting nature considered, and held, to warrant the conclusion of the trial court that the complainant failed to establish his claim of duress under threats of prosecution.

      2. Same.
    The fact that complainant weighed in his mind what consequences might result from his failure to enter into a settlement, unless actual threats of prosecution were made by the wife, did not establish that he was so bereft of the quality of mind and power of will essential to entering into contracts as to be incapacitated to exercise freedom of will power.
    3. Same — Equity—Clean Hands.
    That complainant was not innocent of wrong doing was not a ground for denying to him equitable relief .under the maxim that he who comes into a court of equity must come with clean hands.
    4. Same — Marriage Settlement — Contracts—Consideration.
    The fact that the wife agreed in the contract to care for and support the minor children of complainant was sufficient consideration to support the agreement.
    5. Same — Husband and Wife — Dower.
    But held, that the dower interest of complainant’s second wife should be preserved and the court of equity should retain jurisdiction for that purpose and an order dismissing the bill of complaint is reversed.
    Appeal from Kent; McDonald, J.
    Submitted October 22, 1915.
    (Docket No. 153.)
    Decided December 21, 1915.
    Bill by John Dallavo and wife against Henrietta Dallavo and another to set aside a contract and certain instruments of conveyance. From a decree dismissing the bill, complainants appeal.
    Modified and affirmed.

      Smedley & Linsey, for complainants.
    L. G. Palmer and Clapperton, Owen & Hatten, for defendants.
   Kuhn, J.

The bill of complaint in this cause alleges duress, fraud, and want of consideration as grounds for setting aside certain instruments, to wit, a deed executed by the complainants on the 17th of August, 1912, to the defendant Henrietta Dallavo, conveying the fee in certain property hereinafter called the “Finch property;” a certain contract entered into between John Dallavo and Henrietta Dallavo on the same day concerning the same property; a certain life lease from Henrietta Dallavo to John Dallavo covering a part of said property; a certain mortgage executed at the same time covering an 80-acre farm located in Home township, Montcalm county; and also two promissory notes amounting to $225, executed by John Dallavo and payable to the defendant Palmer.

The decree of the court dismissed the bill of complaint, but held that, as to the complainant Marie Dallavo, her deed to the land in question was without legal consideration, and the conveyance to Henrietta Dallavo was confirmed, subject, however, to the dower rights of said Marie Dallavo therein, and the life lease to John Dallavo. From this decree the complainants have appealed.

The complainant John Dallavo, who was an Austrian by birth, was married in 1880 to the defendant Henrietta Dallavo in Germany. While serving a prison sentence in Germany for subornation of perjury he escaped, and found his way to this country about 1886, and settled near Howard City in this State, where he was joined later by his wife and three children. He engaged in the lumber business, and carried on a general business in connection therewith, and through the joint efforts of himself and his wife, who in addition to her family cares and duties, boarded the men employed, took principal charge of the business affairs, kept the books of account, did the buying and selling, etc., they accumulated about $50,000 in property, and reared a family of ten children. After he became prosperous, however, he became faithless to his wife and consorted with other women, which conduct on his part was endured by the wife for years because of her love for the family and her desire to avoid the disgrace of a divorce.

In 1907 they sold their lumber business in Green-ville to the older two sons for $8,000, which was paid in the form of notes, which were equally divided between the father and mother. In 1908 there was a mutual division of the title to the real estate accumulated through their joint efforts, because he was at that time contemplating the purchase of a large track of timber, in the South and desired to mortgage his property for the purpose of raising money for that purpose, and his wife did not wish to join in the scheme. The property conveyed to her at that time was approximately of the value of $7,250, and the properties left in the complainant were variously estimated to be worth from $20,000 to $36,000. His conduct with relation to other women continued, however, and finally culminated in February, 1911, in her retaining the defendant Palmer to file a bill for divorce, which was later dismissed by her. During the fall and winter of 1911 and 1912 he lived with another woman, who afterward brought suit against him for breach of promise of marriage.

In the summer of 1911 one of his daughters, becoming ill, was advised by her physician to go to California, whither she was accompanied by her mother, Mr. Dallavo providing part of the money necessary for the expenses of the trip. She left Grand Rapids in August, 1911, and returned October 14th of the same year. The complainant came to the house where she was staying and saw the mother and children, and visited with them. In September, while she was in California, he went to Grand Haven, Mich., and through an attorney there filed a bill for divorce, alleging that he was a resident of Ottawa county, and that his wife was then living in California. In November, 1911, for the purpose of obtaining substituted service in his. divorce proceedings he went to Grand Haven and made the affidavit that his wife was not a resident of Michigan but a resident of California,-and in June, 1912, he again went to Grand Haven, and obtained a decree of divorce on his own testimony, without any knowledge of the divorce proceedings being imparted to any of his family until some time after the decree.. He met his wife a few days after the decree, but said nothing to her, and she thereupon went to Pittsburg to visit a sister, and on July 12, 1912, he married the complainant Marie Brooks Dallavo, who was at that time between 17 and 18 years of age.

The first one of the family to talk with Dallavo about his divorce was his son Joe, who lived at Greenville, and who saw a notice of the marriage in the paper, and informed his mother about it. On her return to Grand Rapids in August, 1912, to visit her daughter, she called at the office of the prosecuting attorney of Kent county, to inquire as to the legality of the divorce proceedings, which were prosecuted without notice to her. The assistant prosecutor who advised with her said he would write to Dallavo and ask him to come in and explain the. proceedings, which he did. The next morning, about 5.o’clock, Dallavo called his wife by telephone, and requested an interview with her apart from the children, which she granted. When she met him he begged her not to make complaint against him, and not to have him sent to jail. After some talk it was agreed that if no trouble was made for him he would give her a deed to a farm at Wyman and pay her $30 a month for the support of the three minor children as long as they remained in school. They went to the office of a notary public, where this agreement was carried out, a-deed being made to their daughter Louise, she in turn deeding to her mother. The complainant thereupon requested her to give him a release in writing, which the defendant said she could not do until she had seen an attorney.

The same day she took a train and went to Stanton, Mich., where she interviewed the defendant L. C. Palmer, her attorney, who returned that evening with her to the city of Grand Rapids. Complainant met them at the depot, and he was there informed that the matter was entirely in the hands of -Mr. Palmer for settlement. The next morning Mr. Palmer came to the office of Grove & Davis, who were then representing the complainant in some litigation in the courts of that county, and inquired whether or not they had represented the complainant in the divorce proceedings in Grand Haven. Mr. Palmer told Judge Grove certain things that he believed to be true concerning the divorce proceedings. Thereupon Mr. Davis left a telephone call for the complainant to call at their office. Mr. Palmer went to Grand Haven to examine the divorce proceedings, and upon his return called on Grove & Davis, and informed them of the nature of the proceedings in Grand Haven, and of his intention to file a. petition to set aside the divorce. Mr. Dallavo, with, his son Joe, called at the office of Grove & Davis, and. the whole matter was talked over between Messrs. Palmer, Grove, Davis, Dallavo, and his son. Mr. Davis-advised Mr. Dallavo and his son Joe of the serious character of the claims that Mr. Palmer had made with reference to the divorce proceedings, and that if they were true they might constitute the basis of charges of perjury and possibly bigamy. The son Joe thereupon stated that the father desired to avoid publicity and have the affair settled up, and suggested that they have a talk with the mother, who was then at the daughter’s home. The son Joe and Mr. Palmer thereupon went to the place where defendant was staying to talk over the settlement. That evening the son Joe again met the complainant and told him that the mother would accept nothing less than the Finch property.

The next day Mr. Palmer continued negotiations with Grove & Davis and Dallavo along the lines suggested by the son Joe, and it was insisted that Mrs. Dallavo should give him a life lease of the property, which at first Mr. Palmer declined to do, but after another interview with Mrs. Dallavo, was agreed upon. The signature of the new wife being necessary to the conveyance, it was arranged that Mr. Dallavo should go to Sand Lake, where his wife was visiting her people, and bring her and her father, who was a justice of the peace, to a conference the next day. They did come the next day, and Judge Grove and Mr. Davis explained to the wife and her father the situation, and what was proposed by way of an adjustment. Upon being told that if the arrangement was carried out the decree of divorce would be enrolled so that her rights as his wife would be established, she and her father advised the settlement and lease, which were duly executed and delivered a few days later. It was also agreed on the part of Dallavo that the property should be relieved from incumbrance. After the settlement had been executed, and before the papers were recorded, Dallavo obtained a loan of $4,000 from a building and loan association, which had no knowledge of the conveyances, and secured it by a mortgage on the Finch property executed by himself and his wife Marie.

It is the claim of the complainant — and he so testified — that during these proceedings he was nervous, excited, and very much worried and scared, and that it was under threats of prosecution for perjury and bigamy that he agreed to deed the Finch property to the defendant; and that he did so only because of these threats that were made against him, and because he was fearful of being arrested. It is denied on the part of both Mr. Davis and the defendant Palmer that any threats were made, and that any pressure was made upon him to make a settlement. The son Joe also testified that not only was no threat or expression of intention to prosecute made, but his mother had stated to him that she would not take any action against his father in court, even if he should refuse to make the provision for the family which they had demanded; but he did not claim that he told his father. He said that his father cried and bemoaned the fact that he was going to lose so much property, but said that he had seen him cry hundreds of times, and Mrs. Dallavo says that these penitential tears had often flowed freely when he was called to account for wrongdoing, until he had been forgiven. The daughter characterised them as “crocodile tears.”

The learned trial judge who heard the testimony and who saw the witnesses on the witness stand, in determining the question of fact, and speaking of the testimony of John Dallavo, said:

“In regard to that I am convinced that every disputed question of fact must be determined without reference to his testimony. His deceitful conduct toward his former wife, Henrietta Dallavo, his apparent readiness to perjure himself in the divorce suit, and his reckless and unfounded sworn allegations in this bill forbid my placing the slightest credence in his testimony.”

With this conclusion we are in accord. We do not believe that his testimony on disputed questions of fact is entitled to any credence. v It is very apparent from a reading of this record that through all the negotiations with reference to the transfer of property, the complainant had the benefit of the advice of competent and experienced counsel. Judge Grove, a lawyer of unquestioned standing at the bar, testified:

“From the beginning to the end, Mr. Davis talked over the matter with me from time to time, and he in my judgment was unusually cautious and careful trying to protect Mr. Dallavo just as far as he possibly could. I never knew a case where an attorney seemed to be more earnest in his efforts to protect a client than Mr. Davis showed all the way through.”

It appears that even his. attorneys did not advise him to make this settlement, advising him only to exercise his own judgment, based upon a knowledge of the facts. He undoubtedly made the settlement, knowing the consequences of what might follow if he did not make it. But we think that it clearly appears that he made it only after deliberation and after having had the advice of his son Joe, his new wife, and her father.

The legal question as to what constitutes duress has quite recently had the consideration of this court, in the case of Clement v. Mercantile Co., 172 Mich. 243 (137 N. W. 657), and what was. said there by Mr. Justice Steere is clearly applicable here:

“The law does not recognize duress by mere suggestion, advice, or persuasion, especially where the parties are at arm’s length, and represent opposing interests. 9 Cyc. p. 443. * * * The only duress claimed is per minas — by threats and intimidation. To constitute this, it must appear that the party coerced was so intimidated and moved by the threats made as to cease to be a free moral agent, and became so bereft of those qualities of the mind essential to entering into a contract as to be incapacitated to exercise his free will power in that connection. * * * As a rule, duress will not prevail to invalidate a contract entered into with full knowledge of all the facts, with ample time and opportunity for investigation, consideration, consultation, apd reflection. Clement knew the facts in this case, was given ample opportunity, and invited to investigate, and was free to consult with whomsoever he saw fit.”

Likewise in this case, it clearly appears that Dallavo was informed with reference to all the facts concerning the situation which confronted him. He knew the facts better than any other person.. He was given ample opportunity to investigate, and was invited to, and did,consult with whomsoever he saw fit. Undoubtedly he weighed in his mind the consequences that might .result from his failure to make the agreement that he did, but we are not convinced that simply because he bemoaned the condition that he found himself in, he was “so bereft of those qualities of the mind essential to entering into a contract as to be incapacitated to exercise his free will power in that connection.” We think that he did exercise his free will power, and that therefore the testimony does not sustain the claim of duress as to himself.

The fact that he comes into a court of equity with unclean hands should not, under the authority of Briggs v. Withey, 24 Mich. 136, necessarily deny him the right to relief, but it does not relieve him from the necessity of convincing the court of the fact that the arrangement that he made was one procured by fraud or by duress per minas.

We also agree with the conclusion of the trial judge that the deed signed by the present wife was without legal consideration so far as she was concerned, and that it was proper to preserve to her her dower rights. Clement v. Mercantile Co., supra.

The contract provided the following as consideration moving to Dallavo:

“In consideration of the faithful performance of the agreements and undertakings to be performed by first party, as hereinbefore recited, said second party does hereby undertake to support the minor children of said parties hereto, the issue of the marriage theretofore existing between said parties, and said second party also hereby acknowledge receipt and payment in full of all dues, demands, and claims of every name and nature existing at this date.”

At the time of the settlement there were three minor children, and we think that the agreement in the contract on her part to support those children was a sufficient consideration under the circumstances of this case to sustain the settlement as made.

The decree also properly provided that the complainants should pay the mortgage placed by them on the Finch property, and by consent of the parties the deed to the daughter Louise and the one by her to her mother of the farm at Wyman was set aside.

The trial judge made a proper disposition of the case before him, and we therefore affirm his decree, except as to dismissing the bill, with costs to the defendants.

Brooke, C. J., and Person, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Ostrander, J.

text:
    MILLER v. RIVERSIDE STORAGE & CARTAGE CO.
    1. Master and Servant — Death—Workmen’s Compensation — Industrial Accident Board — Dependents.
    It is a Question of fact, from testimony that is in conflict or sustains different inferences, whether a claimant under the workmen's compensation act, not among those who are conclusively presumed to be dependent, was actually in the dependent class. (Act No. 10, Extra Session 1912.)
    2. Same — Evidence—Kin.
    Testimony to prove that a deceased brother contributed to claimant’s support, though she partially sustained herself by her labors as a stenographer, reviewed on certiorari to the Industrial Accident Board, and held, to sustain its ' award of compensation.

      3. Same.
    The test of dependency is not whether the members of the family could support life without the contributions of decedent, but whether they depended on him for part of their income or means of living.
    Certiorari to the Industrial Accident Board.
    Submitted October 19, 1915.
    (Docket No. 155.)
    Decided December 21, 1915.
    Blanche Miller presented her claim against the Riverside Storage & Cartage Company and another for compensation for the death of her brother. From an award granted by the accident board, respondent brings certiorari.
    Affirmed.

      Clark, Lockwood, Bryant & Klein, for claimant.

      Florian, Moore & Wilson, for defendants.
   Ostrander, J.

Thomas Miller was employed by the Riverside Storage & Cartage Company at a wage of $15.50 per week. He died from an injury found to have been sustained by him in the course of and growing out of his employment; the injury being received September 2, 1914. Claimant is his sister. Whether she. was dependent upon him, within the meaning of the statute, is the question presented; it being claimed there was no evidence of dependency. The award of the committee of arbitration was approved by the Industrial Accident Board. The award was:

“That the said applicant, Blanche Miller, is entitled to receive and recover from said respondents, Riverside Storage & Cartage Company and London & Lancashire Guarantee & Accident Company the sum of three ($3) dollars per week for a period of three hundred (300) weeks, from the 2d day of September, 1914, and that said applicant is entitled to receive and recover from said respondents on this date thirty-three dollars, being the amount of such compensation that has already become due under the provisions of law, the remainder of said award to be paid to said Blanche Miller, applicant, by said respondents in weekly payments, commencing one week from the date of the award.”

Whether one is or is not dependent upon another for support is, of course, a fact. By the terms of the act persons standing in certain relations to a deceased employee are conclusively presumed to be wholly dependent upon him 'for support. Claimant is not one of them, nor were there any such dependents of the deceased employee. She is, however, a person who may be a dependent. It is provided that, if the employee leaves dependents only partly dependent upon his earnings for support at the time of his injury, the weekly compensation to be paid (by the employer) shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependent bears to the annual earnings of the deceased at the time of his injury. Questions as to who constitute dependents and the extent of their dependency are to be determined as of the date of the accident to the employee, and their right to any death benefit becomes fixed as of such time, irrespective of any subsequent change of conditions.

Testimony for the claimant, who is 22 years old, tended to prove that from the time he was 16 or 17 years old her deceased brother, who was 7 years her senior, had contributed to her support. Claimant went to Detroit when she was 18 years of age, and, with her brother’s aid, educated herself to be a stenographer. She was employed by one concern some 2% years, first at $8 a week, then at $10, and for some time before her brother was injured at $12 a week. She lost some time, but was paid her full salary. She quit work in August, 1914, going on a visit to her old home in Colorado, and was in Colorado when her brother was injured. She testifies that her brother regularly gave her $6 a week until she left Detroit. He then gave her $75 for her journey. From February 8, 1913, to August* 17, 1914, claimant had on deposit in a savings bank $70. She took music lessons “off and on” while in Detroit, and, not being strong physically, paid out considerable money, the last in May, 1914, for medical attention. At the hearing in December, 1914, she was employed at $10 a week. She went to Colorado, she says, for rest, being nervous and not doing her work well. The deceased brother received as much as $18. a week at one time at one place where he worked in Detroit. He received occasionally tips, or extras, she says, while employed by the respondent. Claimant paid for room and breakfast and dinner $5 a week; for lunches 25 cents each; for car fare 75 cents a week. She purchased clothing during the period from September, 1913, to September, 1914, $112.25. She made a visit to Pennsylvania during the time she lived in Detroit. She did no work while upon her last visit to Colorado, and paid nothing for board or room. She received nothing during that period from her brother. The arrangement they had made was that he was to go to Colorado and return to Detroit with her. Upon cross-examination she computed her expenses for the year ending in September, 1914, including room, food, clothing, and street car fare, at $489.25. And counsel say that, being in a position to earn, and earning, when at work, a sum equal to $520 or more annually, she was not, upon her own computation and statement, dependent upon any one; she was independent.

It is probable that in every case where a brother or sister of a deceased employee claims relief under the statute the evidence of dependency will necessarily be evidence of contributions made by the deceased, because in such cases the support furnished by either to the other, or the service rendered by either to the other, will be voluntary. But voluntary contributions of money, support, or service by a brother to a sister, or by a sister to a brother, are not necessarily evidence of the dependency of either, or of the extent of dependency, within the purview of the statute. The legislature has not defined “dependent;” it is probable that no standard for the determination of dependency, in fact, can be formulated. In a case in which a father sought compensation on account of the death of a son who had contributed to his father a certain average sum weekly, it was said that the question is whether the father

“made a loss by the death of his son, in consequence of there no longer being a source of assistance to him from his son’s earnings in the work at which he was killed, and on which source, from his own inability to earn wages himself, he was wholly or partially dependent.” Arrol & Co., Ltd., v. Kelly, 7 F. 906, 42 Sc. L. 695.

In Simmons v. White Bros., 80 L. T. 344, 1 W. C. C. 89, and in Main Colliery Co., Ltd., v. Davies, 2 W. C. C. 108, one or more of the judges were, of opinion that:

“ ‘Dependent’ probably means dependent for the ordinary necessaries of life for a person of that class and position in life.”

So in Howells v. Vivian & Sons, 85 L. T. 529, 4 W. C. C. 106, it was said:

“The test of dependency is'not whether the family could support life without the contributions of the deceased, but whether they depended upon them as part of that income or means of living.”

These expressions, called out by the facts of particular cases, do not supply a rule. As cases arise, in some of ’which the facts are held not to prove, and in others to be consistent with, dependency, debatable ground will be narrowed. Unless a standard of independence for unmarried women who work for and live upon wages can be set up which classes as independent all who earn $10, or even $12, a week, or more, it cannot be said there was no testimony tending to prove the dependency of claimant. It is manifest there are many women who regard themselves as independent, who live wholly upon their wages, who receive a smaller weekly wage. According to the report of the commissioner of labor published in 1915, there were employed in Detroit 1,974 female stenographers who received wages; the average daily wage being $2.22. In 2 cities only out of 60 in the State reported is there paid a higher average daily wage. Assuming six days a week's work, the average wage per week was $13.32. This is more than claimant ever received, and more than $3 per week more than she was earning when her deposition in this case was taken. That she can maintain herself upon the wages she is getting is probably true, at least with good, or fair, health. She says she has not good health, and an agent of her former employer testified that she is nervous and excitable.

Upon all of the testimony, the arbitration committee and the Industrial Accident Board held that she was partly dependent upon her deceased brother. I do not think it clear that the finding is wholly unsupported by testimony.

It follows that it should be and is affirmed.

Brooke, C. J., and Person, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.


text:
    LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO. v. STERLING.
    1. Boundaries — Pences—Agreement or Acquiescence.
    A fence which, plaintiff’s lessor, a railroad corporation, erected in 1871, as it supposed, upon the line of its property, and which the adjoining proprietor assumed to be on the line, until about 1913, did not become the boundary line by acquiescence and agreement; not being located correctly.
    2. Same — Adverse Possession — Occupation.
    In order to bind the interested proprietors it is necessary that the parties make an honest attempt to fix the true boundary and agree upon a line orally or otherwise according to which they afterwards occupy the premises.
    3. Same — Tacking on Possessions.
    Without a privity between the successive owners in possession, the several possessions cannot be tacked together so as to create continuity. Hence, a proprietor who entered on his property under a deed of conveyance which excluded by description the land in dispute, could not maintain his claim thereto by adverse holding based upon his own possession and that of his predecessors in title.
    Error to Hillsdale; Chester, J.
    Submitted October 21, 1915.
    (Docket No. 74.)
    Decided December 21, 1915.
    Ejectment by the Lake Shore & Michigan Southern Railway Company against John S. Sterling. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      C. A. Shepard, B. E. Sheldon, and J. C. Riggs, for appellant.

      Herbert R. Clark, for appellee.
    The suit was begun October 27, 1914. From appellant’s brief the following statement of facts is taken:

      “On November 16, 1869, Mary E. Beagle conveyed to the Detroit, Hillsdale & Indiana Railroad Company, by deed recorded in Liber 71 of Deeds of Hillsdale County on page 28, its right of way through the northwest fractional quarter of section nineteen (19), Somerset township, in said county, described as follows:
    “ ‘One hundred feet in width, being fifty feet on each side of the line which may be hereinafter established by said company for the route of théir railroad oyer and across the northwest fractional quarter of section number nineteen (19), town fiv.e (5) south, of range one (1) west.’
    “Soon thereafter the line for such route was established, and in due course of time, immediately following, its said railroad was by said company constructed and put in operation along said route, and its right of way inclosed as required by law. Thereafter, on February 10, 1871, the said Mary E. Beagle conveyed to said company, for station grounds in the village of Jerome, 4.47 acres adjoining said right of way on its northerly side and bounded as follows:
    “Commencing at the point where such northerly boundary line of said right of way intersects the north and south quarter line of said section, and running thence south 51 degrees west 1,300 feet along said northerly boundary line; thence north 187% feet; thence north 51 degrees east 1,300 feet; thence south 187% feet to the place of beginning.
    “Afterwards, on March 11, 1873, the said Mary E. Beagle conveyed to A. P. Cook all of said northwest fractional quarter section lying to the north of and adjoining said station grounds. Afterwards, and on September 5, 1881, the said railroad company, under the name of the ‘Detroit, Hillsdale & Southwestern Railroad Company/ leased in perpetuity its said railroad to the Lake Shore & Michigan Southern Railway Company.
    “The railroad was completed and put in operation early in the year 1871, and its right of way and added station grounds fenced through said quarter section as required by the statute then in force. This original fence on the northerly side of said station grounds stood for more than 20 years until 1893, when the plaintiff made a survey thereof and of the northerly line thereof, and afterwards in the same year built a new fence along the said northerly side of said added grounds which stood until 1913. Neither the fence of 1871 nor that of 1893 enclosed the land in controversy within the railroad grounds.
    “In the spring of 1913 plaintiff replaced the 1893 fence with a new fence placed between two and three feet further to the north and then for the first time took into the railroad grounds the parcel in dispute. This parcel, from the date of his deed in 1873, had been used, claimed, and occupied by A. P. Cook as his own to the time of his conveyance to the A. P. Cook Company in 1886, and from that time claimed, used, and occupied by the said company to 1901, when said company conveyed to George S. Cook, and was claimed, used, and occupied by George S. Cook to 1905, when he delivered possession to defendant under land contract, and by defendant since that time. These several possessions have been open, notorious, continuous, and hostile to the ownership or right of possession of anybody else.
    “Neither the plaintiff nor its lessor ever had possession of the disputed parcel until 1913, when plaintiff moved its north boundary line fence to the north as before stated. From 1873 to 1913 the defendant and his grantors had openly, notoriously, and continuously occupied, possessed, cultivated, and improved up to this fence, which had been maintained on substantially the same line for 40 years. The disputed parcel was at the time of the removal of the line (1913) a small corner of the cement foundation of defendant’s coalhouse and contains 7.48 square feet, of value, as ground simply, not exceeding four cents.
    It is amended by appellee as follows:
    _ “Plaintiff and defendant derived title to their respective lands from a common source, Mary E. Beagle. The deed from her to the railroad company of the right of way and the land north thereof, including the land in dispute, was made first and was recorded. After-wards she deeded to defendant’s predecessors the land now owned by him. In each of the deeds from Mary E. Beagle on down until defendant finally acquired title, the southern boundary was given as the northern boundary of the railroad land. The land in controversy was not included in the description in any of the deeds from the time Mary E. Beagle owned it to the time it was deeded to defendant; neither do any of the deeds attempt to transfer possession of it. _ None of the parties owning or occupying the land in dispute did so for a period of 15 years. There is no evidence that there was anything said verbally about transferring possession of the land in dispute when any of the transfers were made. There is no evidence that any agreement or understanding was entered into between the plaintiff and defendant, or between plaintiff’s predecessor and defendant’s predecessors, that the fence where built should be considered as the boundary line.”
    We have before us neither the plat of the village of Jerome nor the blueprint used at the trial. Testimony was produced which tended to prove the facts above stated. The court, after stating the contentions of the parties, omitting the claim of defendant of title by adverse possession, advised the jury:
    “Then you are instructed that if you find from the evidence that the fence was built soon after 1871, and rebuilt about 1893, was built and maintained as the true northerly boundary of the railroad grounds, and acquiesced in by the plaintiff and defendant and his grantors as the true northerly boundary line of the railroad grounds until 1913, then your verdict should be for the defendant.
    “The contrary of this is true. If you do not find that the fence was built in 1871, or about 1871, and rebuilt about 1893, and that the same has not been maintained as the true northerly boundary line of the railroad grounds, or that the same has not been acquiesced in by the plaintiff and the defendant and his grantors as the true northerly boundary line, then your verdict would be for the plaintiff.
    “You are instructed that the amount of land involved in this controversy, or its value, has nothing to do with the merits of the case. And if the plaintiff is entitled to recover you should bring in a verdict in its favor the same as though a large amount of land and of large value was involved.
    _ “The burden of proof is on the plaintiff to show title. And, gentlemen, if you believe that the surveys made by the two civil engineers who have taken the stand here is a true survey, then you should find that the plaintiff has record title to the land in question.
    “The burden of proof is on the defendant to show that the old fence, and the fence that has been maintained until 1913, was acquiesced in by both the plaintiff and defendant as the true boundary line.”
    Defendant preferred requests to charge, which were not given, among them the following:
    “The court instructs the jury that to constitute adverse possession, as explained in these instructions, for the period of 15 years, it is not necessary that the same person should have himself been in possession of the premises for the whole of that period. It is sufficient if the evidence shows that he and those under whom he holds, either as heir or purchaser, have held such possession for the full period of 15 years.
    “You are further instructed that the title to real estate may be acquired by prescription, which is as valid and binding as one acquired by deeds; so if you find that the defendant and his grantors had been in possession and occupancy, exercising acts of ownership and claiming title to this land in question, for a period of 15 years prior to the time of the bringing of this suit, defendant’s title to this land would thereby become absolute and perfect by prescription, and your verdict should be for the defendant.
    “If the plaintiff or its lessor built a fence as and for its north boundary of its grounds, and maintained it for 20 years or more, and replaced it with a new one on substantially the same line, and the defendant and his grantors acquiesced therein, and in good faith and with a claim of right occupied, cultivated, and built upon their adjoining lands up to the line of said fence for the full period of the statute of limitations, and such occupancy was continuous, exclusive, open, and notorious, then the plaintiff would be estopped to deny that such fence was its north boundary, and if you should so find from the evidence- the facts to be as above premised your verdict should be for the defendant.

      “A jury may infer a practical location of a disputed boundary line by agreement by long acquiescence less than the period necessary to constitute adverse possession, from acts and declarations of the parties.”
    The jury returned a verdict for plaintiff, upon which judgment was entered. A new trial was refused. There are several assignments of error, which need not be recited or expressly referred to. Plaintiff’s title to the land, record title, being established, it must prevail, unless defendant has acquired title by adverse possession, or, what is equivalent to title, by a settle.ment of the boundary line.
   Ostrander, J.

(after stating the facts). 1. It may be inferred that both plaintiff’s lessor and plaintiff meant to build the fences erected by them on the boundary line of the property. It may be inferred that defendant and his grantors assumed that the fence was upon the line. Beyond this the testimony does not permit us to go in the way of establishing a boundary line by agreement and acquiescence. The controlling rule is stated in Smith v. Hamilton, 20 Mich. 433 (4 Am. Rep. 398), is a rule of property, and has been consistently adhered to. Olin v. Henderson, 120 Mich. 149 (79 N. W. 178); Sheldon v. Railroad Co., 161 Mich. 503 (126 N. W. 1056); Parsons v. Bills, 163 Mich. 415 (128 N. W. 721). Upon this subject there was no question for the jury to determine.

2. It is apparent that if defendant, who occupied the land for 8 years or more before disseised by the plaintiff, may add to his period of occupancy the periods when the land was occupied by others, he has acquired title by adverse possession. With those others, of whose periods of occupancy he claims the benefit and advantage, he is in privity by deed of the adjoining land. But his own, or their, paper evidences of title do not convey the land in dispute, but exclude it. It is the rule that one having a deed of land enters, under his deed. In the dissenting opinion of Mr. Justice Moore, in Sheldon v. Railroad Co., 161 Mich. 503, 517 (126 N. W. 1056), a stronger (and somewhat similar) case is stated in favor of tacking successive possessions of successive occupants of land than can be supported by the testimony in the case at bar. But this court held, and the ruling is controlling here, that there was no unity of possession under the original hostile entry; that without privity between successive occupants the several possessions cannot be tacked together, so as to make continuity of possession.

3. The disposition of the principal questions involved hereinbefore indicated, renders discussion of other questions debated in the briefs unnecessary, and requires a judgment affirming the judgment of the court below.

Brooke, C. J., and Person, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.