text:
    THOMPSON v. VILLAGE OF MECOSTA.
    1. Municipal Corporations—Bonds—Designation of Obligor.
    A bond entitled. “Public Improvement Bond o£ the Village of M.” recited that it was issued under authority of an act authorizing the village trustees to levy and collect a tax for public improvements, and to issue bonds therefor. By it the “board of trustees of the village” promised to pay. It was signed by the president and clerk of the village, and sealed with the village seal. Held, that it was the bond of the village, and not that of the trustees.
    2. Same—Delivery—Findings of Court.
    Where the findings of the trial court recite the records of a village, stating that a village bond payable to bearer was ‘ ‘ given to ” a certain person, speak of the bond as ‘ ‘ issued ” by the village, and state that the bond “ came into the hands” of such person, the findings sufficiently show the fact of delivery.
    3. Trial—Written Instruments—Denial of Execution—Sufficiency of Affidavit.
    An affidavit denying the execution and delivery of an instrument sued on, filed with the plea, though not properly entitled, is sufficient to put plaintiff to proof of the execution and delivery.
    4. Municipal Corporations—Bonds—Delivery—Evidence.
    Where a village council obtained special legislation authorizing the issue of certain bonds, employed lawyers to advise in the matter, and submitted the question to a vote, and the records show that they determined “to issue bonds,” and that they authorized the president of the village to negotiate the loan and sign the bonds, and also show their approval of action by which the bonds, which were payable to bearer, were ‘ ‘ given ” to a certain person, and thereafter the council made payments thereon, a finding that the bonds were delivered by authority of the council is justified.
    5. Same—Bona Fide Purchaser.
    Where a village which is authorized by spesial act to issue bonds for public improvements issues its bonds, reciting that they are issued under such act and for such purpose, a bona Me purchaser for value has a right to rely on such statements, and may recover thereon, though the bonds were actually issued for a private improvement, and were therefore void in the hands of the original holder.
    6. Same—Burden of Proof.
    Where, in an action on a municipal bond, it appears that the bond was void in the hands of the original holder, plaintiff has the burden of proving that he or some former owner of the bond was a bona fide purchaser.
    7. Same—Consideration —Discharge of Precedent Debt—Ex-, tension of Time.
    The discharge of a pre-existing indebtedness, in whole or in part, or an extension of time for its payment, is such a consideration for the transfer of negotiable paper (e. g., a municipal bond) as to constitute the transferee a purchaser for value; and the relinquishment of the debt is none the less sufficient in this respect because the debtor remains contingently liable as indorser of the paper transferred.
    8. Same—Banks—Bona Fide Purchaser—Evidence.
    Evidence that a bank purchased a municipal bond, fair on its face, in the usual course of business, is not of itself sufficient to show that it took without notice of facts rendering the bond void in the hands of the original holder, and is therefore entitled to protection as a bona fide purchaser.
    Error to Jackson; Smith (Clement), J., presiding.
    Submitted April 16, 1901.
    Decided July 10, 1901.
    Debt by Anna Maria Thompson and William M. Thompson, trustees, etc., against the village of Mecosta, upon a municipal bond. From a judgment for plaintiffs, defendant brings error.
    Reversed.

      Watts, Smith & Baldwin, for appellant.

      Eugene Pringle and M. Broton, for appellees.
   Hooker, J.

The plaintiffs’ action is upon the following bond :

“No. 2. $1,000.00.

“State of Michigan.—Public Improvement Bond of the Village of Mecosta, Michigan.

“Know all men by these presents, that the board of trustees of the village of Mecosta, in the county of Mecosta and State of Michigan, acknowledges itself indebted to the bearer hereof in the sum of $1,000, for value received, which said sum the said board of trustees of said village of Mecosta promises and agrees to pay to the bearer hereof at the Jackson City Bank, in the city of Jackson, Mich., two years from date, with interest thereon at the rate of seven per cent, per annum, payable annually, upon presentation of this bond.

“This bond is one of aseries of two bonds, of $1,000 each, amounting in the aggregate to $2,000, issued by the board of trustees of the village of Mecosta, of Mecosta county, and State of Michigan, for the public improvements of said village, under authority of an act of the legislature of the State of Michigan approved May 11th, 1893, and entitled ‘ An act to authorize the board of trustees or common council of the village of Mecosta, Mecosta county, to levy and collect on the taxable property of said village, in addition to other taxes now authorized by law, a tax for public improvement of said village, and to issue bonds therefor’ [Local Acts 1893, No. 382], and is authorized by a vote of two-thirds of the electors of said village voting at an election duly held in pursuance of the provisions of said act.

“In testimony whereof, the said board of trustees of said village of Mecosta have caused this bond to be signed by the president and clerk of said village, and sealed with the seal thereof, at the village of Mecosta, at the county of Mecosta, this 23d day of September, A. D. 1893.

[Signed] “A. R. Streeter, President.

“E. O. Watkins, Clerk.”

At the left-hand lower corner, practically over a circle in ink, appear these words: “ Seal, Tillage of Mecosta, Michigan,”—the word “ Seal” being in the . center. On the back of the bond is an indorsement as follows: “ John Hutchinson Manufacturing Company, W. A. Reynolds, Secretary.” Also on said bond a further indorsement as follows:

“We hereby waive demand, notice of nonpayment, and protest.

“ Jackson, Sept. 23, 1893.

[Signed] “John Hutchinson

Manufacturing Company, “W. A. Reynolds, Secretary.”

Also on said bond tbe following indorsement:

“$70.52. - Mecosta, Mich., Nov. 1, 1894. “Received of the village of Mecosta $70.52, in full for first year’s interest on within bond.

[Signed] “ Jackson City Bank, Principal.

“D. A. Ferguson, Attorney.”

The defendant filed an affidavit, made by the president of the village on its behalf, stating that “said village never executed or delivered the bond * * * to any person,” and that it was not executed in the name of said village, and was not authorized to be executed or delivered by said village to any person. The cause'was tried without a jury, findings being filed, and a judgment was rendered for the plaintiffs, and defendant has taken a writ of error.

The finding shows that this and another similar bond were executed by defendant and delivered to the Hutchinson Manufacturing Company of Jackson, Mich., as a bonus or aid to parties erecting a gristmill; and in the hands of the Hutchinson Company they were admittedly void, because not issued for a lawful purpose. The first section of the act provides that “the board of trustees * * * shall be, and are hereby, authorized and empowered to borrow money on the faith and credit of said village, and issue bonds therefor, to an amount not exceeding six thousand dollars, which shall be expended in making public improvements in said village.”

The principal points made against the judgment are:

1. That the bond does not on its face purport to pledge the credit of the village, but only that of the board of trustees.

2. That there is no proof that the delivery of the bond was ever authorized or made.

3. That the bond was void, even in the hands of a bona fide holder, because issued for an illegal purpose and without authority of law.

4. There is no proof -that plaintiffs are bona fide holders.

Does the bond purport to pledge the credit of the village ? While counsel raise this point by claiming that the bond does not pledge the credit of the village, they do not discuss it. We infer that their claim is that it is the trustees who promise to pay, instead of the village. We think the bond does not leave the intention in doubt; its reference to the act under which it purports to have been issued clearly showing that it was to be paid from the public funds, to be raised by tax upon the taxable property in the village. Atchison Board of Education v. De Kay, 148 U. S. 591 (13 Sup. Ct. 706); 4 Am. & Eng. Enc. Law (2d Ed.), 624, and note.

Was the bond delivered to the Hutchinson Manufacturing Company ? Counsel for the defendant say that the court’s finding fails to show that the bond was delivered. The tenth finding states that:

“It was also moved, supported, and carried at the same meeting ‘ that the president and clerk be instructed to sign bonds for $2,000 for public improvements.’ Following the motion to adjourn this meeting is the following, which seems to be a part of the proceedings of the meeting:

“ ‘Bond No.'2, for public improvements of the village of Mecosta, Mich., given to John Hutchinson Manufacturing Company of Jackson, Mich., for one thousand dollars, interest at seven per cent, per annum, payable two years from date at the Jackson City Bank Jackson, Mich.
“ ‘ Dated Sept. 23, 1893.
[Signed] “ ‘A. R. Streeter, President.
“ ‘E. O. Watkins, Clerk.’

“At this meeting there were present A. R. Streeter, president, and Trustees Thomas, Alvord, Wilcox, and Gale.”

The eleventh finding states that:

“On September 25, 1893, the next meeting after September 23, 1893 (the same being a regular meeting), there were present A. R. Streeter, president, and Trustees Wilcox, Thomas, and Alvord, and the following among other things is shown by the record of the same: ‘ Minutes of the last meeting read and approved.’ ”

The twelfth finding speaks of “the bond issued by the defendant,” and contains a copy of it. The thirteenth finding says that this bond and bond 1 came together into the hands of the John Hutchinson Manufacturing Company. We are of the opinion that this is a sufficient finding of the fact of delivery. Whether there is evidence justifying such a finding is another question.

It seems to be conceded that but for the affidavit denying the execution and delivery of this bond, which was filed with the plea, the possession of the bond by the Hutchinson Manufacturing Company would be prima facie evidence of its execution and delivery. It is said that the affidavit is not entitled in the case; but we think it should be treated as sufficient to comply with the rule (Cir. Ct. Rule No. 8), which provides, in substance, that, ‘ ‘ upon the plea of the general issue in an action upon any written instrument, * * * the plaintiff shall not be put to the proof of the execution of the instrument, or the handwriting of the defendant,” unless an affidavit is filed, etc., “ denying the same,” etc.

The intention of the board to make and issue these bonds is clear. There is proof that they obtained special legislation to enable them to accomplish it, and employed lawyers to advise in the matter. They submitted the matter to a vote. Their record shows a determination ‘ ‘ to issue bonds.” They authorized the president to negotiate a loan and to sign the bonds. Their record contains the statement that they were given to the Hutchinson Manufacturing Company, and this appears over the signature of the president and clerk, in connection with a meeting at which there was a quorum present, and the minutes were read and approved at the next regular meeting. Furthermore, they afterwards paid about $800 upon the bonds. There was no evidence disputing any of these facts, and we think they show prima facie a delivery, and that the same was authorized by the board.

Was the bond void in the hands of a bona fide holder ? This bond purports to have been issued under authority of a law which it mentions, and for the purpose prescribed by the act,—a thing that the village might lawfully do. As a matter of fact, it was not issued for such a purpose, but for a private improvement, and upon its face it unquestionably carried a false pretense; but a bona fide purchaser for value had a right to rely upon the statement of the board, appearing in the bond, that it was issued to borrow money under this act, for lawful purposes; i. e., public improvements. Common Council of Cedar Springs v. Schlich, 81 Mich. 405 (45 N. W. 994); Gibbs v. School District, 88 Mich. 334 (50 N. W. 294, 26 Am. St. Rep. 295); Waite v. City of Santa Cruz, 89 Fed. 619; Village of Kent v. Dana, 40 C. C. A. 281, 100 Fed. 56; Risley v. Village of Howell, 12 C. C. A. 218, 64 Fed. 453; City of Cadillac v. Savings Institution, 7 C. C. A. 574, 58 Fed. 935; National Life Ins. Co. v. Board of Education, 10 C. C. A. 637, 62 Fed. 778; Hackett v. City of Ottawa, 99 U. S. 86; Coler v. Dwight School Township, 3 N. Dak. 249 (55 N. W. 587, 28 L. R. A. 649); New York Life Ins. Co. v. Board of Com’rs, 45 C. C. A. 233, 106 Fed. 123.

Was there proof that the Jackson bank or the plaintiffs were bona fide purchasers ? There is no doubt that the burden of proof is upon the plaintiffs to show a bona fide purchase for value. French v. Paving Co., 100 Mich. 443 (59 N.W. 166); Township of Grant v. Township of Reno, 114 Mich. 41 (72 N. W. 18); Stevens v. McLachlan, 120 Mich. 285 (79 N. W. 627); Drovers’ Nat. Bank v. Potvin, 116 Mich. 474 (74 N. W. 724). The evidence shows that the bank took the bond in part payment of a 30-day promissory note given by the Hutchinson Manufacturing Company. The discharge or extension of a pre-existing debt is a valuable consideration. Railroad Co. v. National Bank, 102 U. S. 14; Bostwick v. Dodge, 1 Doug. 413; Outhwite v. Porter, 13 Mich. 533, and note. In Schloss v. Feltus, 103 Mich. 526, 533 (61 N. W. 797), this was recognized to be the rule in cases of negotiable paper. These cases are a sufficient answer to the claim that, inasmuch as the Hutchinson Manufacturing Company indorsed the bond, it was a mere change of the form, and not an extinguishment, of its debt to the bank. Even if it were so, there was an extension of time, which would be a valuable consideration. See Smith v. Rawson, 61 Ga. 210; Cone v. Baldwin, 12 Pick. 545.

It was incumbent upon the plaintiffs to show that the bond was purchased without notice of its infirmities, and counsel for defendant claim that the proof does not show it. The evidence is said to show that it was taken in the course of business at the bank. This testimony is based upon the books of the bank, rather than the recollection of the transaction. It does not appear that the employe of the bank who took the bond from the Hutchinson Manufacturing Company is known. Certainly it is not clear that he was produced as a witness. The burden being on the plaintiffs, the presumption is that it bought with notice. Unless the fact that the bond was taken in the course of the bank’s business raises a presumption that it was taken without notice, the plaintiffs have failed to offer any proof of a want of notice. Counsel for plaintiffs contend that such presumption arises, and, if it does, we cannot question the finding of the circuit judge. New-kirk, the president of the bank, gave the only testimony upon the subject. He did not say that the transaction was within his personal knowledge or recollection. The only showing that it was purchased in the course of business is the fact that the bookkeeping of the bank shows that it was purchased and applied on the Hutchinson Manufacturing Company’s note; but the showing made is as consistent with notice as with a want of it. Why should it, then, be assumed that there was no notice, when the evidence of what the transaction really was is peculiarly within the control of the bank, and the burden of proving the negative is imposed upon the plaintiffs ? Want of notice is a substantive fact to be proved, and a want of evidence upon the subject does not prove such fact. Counsel say that “the only difference between the case of Drovers’ Nat. Bank v. Potvin, supra, and this case is that in that case the cashier testified to the conclusion that the bank had no notice, while here the ex-cashier swore to the exact facts.” The trouble is that the ex-cashier has not testified about the transaction, and apparently knows nothing about it. We think the plaintiffs failed to show that the bank was a bona fide purchaser. See John Hancock Mut. Life Ins. Co. v. City of Huron, 80 Fed. 652. There is no testimony tending to show whether the plaintiffs were bona fide purchasers or not. Tilden v. Barnard, 43 Mich. 376 (5 N. W. 420, 38 Am. Rep. 197).

The judgment is reversed, and a new trial ordered. •

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


source: Caselaw Access Project

author:
Long, J.
      Moore, J.

license: Public Domain

text:
    MATHEWS v. KALAMAZOO BOARD OF EDUCATION.
    Schools—Authority or District Board — Compulsory Vaccination.
    A school-district board, by virtue of the authority conferred on it by statute to enact rules for the management of the schools, has no power to adopt a general, continuing rule, operative without regard to varying conditions, excluding from the schools all pupils who have not been vaccinated. Long and Grant, JJ., dissenting.

      Certiorari to Kalamazoo; Adams, J.
    Submitted April 16, 1901.
    Decided July 10, 1901.

      Mandamus by George R. Mathews to compel the board of education of school district No. 1 of the city and township of Kalamazoo to admit relator’s children to the public schools. From an order granting the writ, respondent brings certiorari.

    Affirmed.

      Walter H. Taylor, for relator.

      Alfred J. Mills, for respondent.
   Long, J.

(dissenting). The relator is a taxpayer and resident of the city of Kalamazoo and school district No. 1, above named. He has three children, aged, respectively, 11, '9, and 7 years; being all within the school age, ánd entitled-to attend the public schools of said district. It appears that in 1891 the school-district board enacted the following rule:

‘ ‘ No pupil shall be admitted into any public school who cannot furnish satisfactory evidence that he or she has been vaccinated or otherwise secured against smallpox; and no pupil affected with any contagious disease, or coming from a house where such a disease exists shall be allowed to remain in any public school.”

This rule has been in force ever since its adoption, and is still in force. The relator’s three children have never been vaccinated. He sent them to school at the opening of the term in January last, but admission was refused by the respondent because they had not been vaccinated or. otherwise protected against smallpox in accordance with the above rule. Upon such refusal the relator petitioned the circuit court for mandamus to compel the board to permit his said children to attend said school notwithstanding such rule. The court below granted the prayer of the petition. The case comes into this court' by certiorari.

Counsel for relator contends that the rule is unreasonable and unconstitutional; that the relator, being a Christian Scientist, cannot conscientiously consent to have his children vaccinated, because to do so would infringe upon his religious belief and scruples; that his children could not be vaccinated without his consent, and therefore, without any act of their own, would be excluded from the enjoyment of the public schools, secured to them by the Constitution; that the statute is mandatory that they shall attend the public schools during a certain portion of the year; and that the parents, as well as the children, are liable to punishment under the truancy laws of this State for failure of the children to attend school. It is also contended that there is no statute of the State providing for compulsory vaccination, and no statute giving any school district authority or power to require children to be vaccinated as a condition precedent to attending school. It is admitted that there is and has been no smallpox in the city of Kalamazoo or in such school district No. 1, but it is known that the disease has been and is prevalent in several parts of the United States and of this State.

We do not feel called upon to enter upon or discuss the question of the religious scruples of the relator. The only question is whether the respondent had lawful authority to adopt and enforce the rule complained of. It is not a rule compelling vaccination, but one adopted for the safety of the children in attendance upon the school, and for the safety of the whole community; and providing that those who do not submit to such protection, such as science and experience have shown it to be, against smallpox, cannot be permitted to endanger the lives of those who do comply therewith.

The respondent district was organized under Act No. 335, Local Acts 1891. The general management and conduct of the affairs of the district is vested in a board of six trustees. By section 8 the board is given power to hire any and all necessary teachers for the several schools of the district, and fix the amount of their compensation, to classify and grade said schools, and to determine the ages and qualifications for admission therein. By the same section the board is given authority to enact such rules and by-laws as may be necessary for the preservation of all the property belonging to the district, and for the government of the schools, and in reference to all business connected therewith, and to regulate the conduct of all persons in the schools and on the grounds belonging to said district. Section 11 of the act provides:

It shall be the duty of the board of education * * * generally to do all things needful and desirable for the maintenance, prosperity, and success of the schools and library in said district.”

Section 34 of the act provides:

“School district No. 1 of the city and township of Kalamazoo.shall in all things not herein otherwise provided be governed by, and its powers and duties defined by, the general laws of this State regulating school districts and district libraries therein; and all acts and parts of acts inconsistent with this act are hereby repealed.”

The general school law provides:

“ The district board shall have the general care of the school, and shall make and enforce suitable rules and regulations for its government and management.” 2 Comp. Laws, § 4682.

We think, under these provisions, that the board of trustees had the power to make the rule now sought to be set aside, and that such rule is a reasonable regulation.

A case similar in principle was before the supreme court of Pennsylvania in 1894. Duffield v. School District, 162 Pa. St. 476 (29 Atl. 742, 25 L. R. A. 152). It appeared there that the school board adopted a resolution providing that “no pupils shall attend the schools of this city except they be vaccinated, or furnish a certificate from a physician that such vaccination has been performed.” The child who was excluded from attendance was within the school age and in good health, and was excluded solely on the ground of noncompliance with the rule of the board. Mandamus was sought to compel the board to permit the child to attend without complying with the rule. The writ was denied in the court below, and that order affirmed in the supreme court. ' It was there said:

“We are not required to determine judicially whether the public belief in the efficacy of vaccination is absolutely right or not. We are to consider what is reasonable in view of 'the present state of medical knowledge, and the concurring opinions of the various boards and officers charged with the care of the public health. The answers of the city and the school board show the belief of the proper authorities to be that a proper regard for the public health and for the children in the public schools requires the adoption of the regulation complained of. They are doing in the utmost good faith what they believe it is their duty to do; and, though the plaintiff might be able to demonstrate by the highest scientific tests that they are mistaken in this respect, that would not be enough. It is not an error in judgment, or a mistake upon some abstruse question of medical science, but an abuse of discretionary power, that justifies the courts in interfering with the conduct of the school board, or setting aside its action. It is conceded that the board might rightfully exclude the plaintiff’s son if he was actually sick with, or was just recovering from, the smallpox. Though he might not be affected by it, yet, if another member of the same family was, the right to exclude him, notwithstanding he might be in perfect health, would be conceded. How far shall this right to exclude one for the good of many be carried ? That is a question addressed to the official discretion of the proper officers; and, when that discretion is honestly and impartially exercised, the courts will not interfere.”

In that case it appeared that by no legislative act had school districts been given express power to prescribe vaccination as a necessary qualification for admission into the common schools, or to suspend or expel pupils for failure to comply with the rule requiring vaccination. It was found that there was smallpox within the city; and we think that court very properly held that it was within the discretionary power of the board to adopt such a rule. See, also, Blue v. Beach, 155 Ind. 121 (56 N. E. 89, 50 L. R. A. 64, 80 Am. St. Rep. 195). In the present case, while it> did not appear that smallpox was prevalent in the city of Kalamazoo, it did appear that it was in many places within the State. The board enforced the rule as a precautionary measure to prevent the spread of the disease. We think this was within the discretionary power of the board.

The order of the court below should be reversed.

Grant, J., concurred with Long, J.

Moore, J.

I cannot agree with the conclusion reached by Justice Long. The children of the relator are of school age, in good health. They have not got the smallpox, nor have they been exposed to it. The law of the State makes it their duty to attend school, and it is the duty of the parent to send them. 2 Comp. Laws, § 4847. In case he fails to do so, he may be subjected to fine or imprisonment, or both, in the discretion of the court. 2 Comp. Laws, § 4848. The effect of the rule adopted by the school board is to compel the vaccination of the child, or subject him and the parents to the penalties of the law. The practical result, if this rule can be sustained, is to give the board of education the right to compel vaccination. It is said the board does not undertake to compel vaccination, but it simply says until the child is vaccinated it cannot attend school. We have already shown that it is made by law the duty of the child to attend school, and of the parent to send him; and, as long as the bro.ad rule adopted by the board exists, the child must be vaccinated, or it and its parents must be lawbreakers. If the rule was that, during the prevalence of the smallpox in Kalamazoo, the child could not attend school unless vaccinated, a very different result would be reached. These epidemics never last very long, and the parent and child might well say, if they desired, they would absent themselves from school during the epidemic; and this could be done without their being lawbreakers. In the case cited by Justice Long (Duffield v. School District, 162 Pa. St. 476, 29 Atl. 742, 25 L. R. A. 152), the record shows that smallpox then existed in the school district; the school board had, because of this fact, and at the request of the board of health, adopted the rule requiring vaccination; a very different case than the case at bar. In Abeel v. Clark, 84 Cal. 226 (24 Pac. 383), the legislature itself passed a law requiring vaccination, and it was held to be within the police power; but it is not believed a case can be found where a board of education, under the general power conferred upon it, is held to have the power to pass a general rule shutting the schools against all children not vaccinated.

The question has never before been raised in this State, but the principles involved are not new. In Potts v. Breen, 167 Ill. 67 (47 N. E. 81, 39 L. R. A. 152, 59 Am. St. Rep. 262), the State board of health adopted a rule that no pupil should attend a public school unless vaccinated, and by their directions the school board excluded unvaccinated children from the school. The power given to the board of health was much greater than that conferred upon the Kalamazoo board of education. In holding that the board of health and the school board had exceeded their authority, the court said:

“While school directors and boards of education are invested with power to establish, provide for, govern, and regulate public schools, they are in these respects nowise subject to the direction or control of the State board of health; and, as before pointed out, they have no authority to exclude children from the public schools on the ground that they refuse to be vaccinated, unless, indeed, in cases of emergency, in the exercise of the police power, it is necessary, or reasonably appears to be necessary, to prevent the contagion of smallpox. Undoubtedly, also, children infected with or exposed to smallpox may be temporarily excluded, or the school be temporarily suspended; but, like the exercise of similar power in other cases, such power is justified by the emergency, and, like the necessity which gives rise to it, ceases when the necessity ceases. No one would contend that a child could be permanently excluded from a public school because it had been exposed to smallpox, or that the school could be permanently closed because of the remote fear that the disease of smallpox might appear in the neighborhood, and that if the school should then be open, and children in attendance upon it, the public would be exposed to the contagion. And, upon the same line of reasoning, without a law making vaccination compulsory, or prescribing it, upon grounds deemed sufficient by the legislature as necessary to the public health, as a condition of admission to or attendance upon the public schools, neither the State board nor any local board has any power to make or enforce a rule or order having the force of a general law in the respects mentioned. * * * However fully satisfied, by learning and experience, a board might be that anti-toxine would prevent the spread of diphtheria, no one would contend that a rule enforcing its use as a condition precedent to the admission of a child to the public schools would, as the law now is, be valid. It is a matter of common knowledge that the number of those who seriously object to vaccination is by no means small, and they cannot, except when necessary for the public health, and in conformity to law, be deprived of their right to protect themselves and those under their control from an invasion of their liberties by a practically compulsory inoculation of their bodies with a virus of any description, however meritorious it might be.”

In State v. Burdge, 95 Wis. 390 (70 N. W. 347, 37 L. R. A. 157, 60 Am. St. Rep. 123), the State board of health, under its general powers, adopted a rule excluding from the public schools pupils who had not been vaccinated. The school board undertook to carry out the rule. The court said:

“ The police power of the State is relied on to support the rule in question. This power has been defined in varying language, but of substantially the same general import. ‘ All laws for the protection of life, limb, and health, for the quiet of the person, and for the security of property,’ fall within the general police power of the government. ‘All persons and property are subjected to all necessary restraints and burdens, tó secure the general comfort, health, and prosperity of the State;’ and it has been said that ‘it is co-extensive with self-protection, and is not inaptly termed “the law of overruling necessity.” It is that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort and welfare of society.’ Tied. Pol. Pow. 2-5; Cooley, Const. Lim. 572; Redfield, C. J., in Thorpe v. Railroad Co., 27 Vt. 140 (62 Am. Dec. 625); Town of Lakeview v. Rose Hill Cemetery Co., 70 Ill. 192 (22 Am. Rep. 71); State v. Noyes, 47 Me. 189. As the police power imposes restrictions and burdens upon the natural and private rights of individuals, it necessarily depends upon the law for its support, and, although of comprehensive and far-reaching character, it is subject to constitutional restrictions; and, in general, it is the province of the lawmaking power to determine in what cases or upon what conditions this power may be exercised. As applied to the present case, the relator had a right, secured by statutory enactment, to have his children continue to attend the city schools in which they were respeptively enrolled as pupils; and they, too, had a right to so attend such schools. Whether it be called a ‘right’ or ‘privilege’ cannot be important, for in either view it was secured to the relator, and to his children as well, by the positive provisions of law, and was to be enjoyed upon such terms and under such conditions and restrictions as the lawmaking power, within constitutional limits, might impose.

“There is no statute in this State authorizing compulsory vaccination, nor any statute which requires vaccination as one of the conditions of the right or privilege of attending the public schools; and, in the absence of any such statute, we think it cannot be maintained that the rule relied on is a valid exercise of the rightful powers of the State board of health. The State board of health is a creation of the statute, and has only such power as the statute confers. It has no common-law powers. To lawfully exclude the relator’s children from the city schools for the cause relied on required such a change in the existing law as the legislature alone could make,—a change that should make vaccination of pupils compulsory, or at least prescribe it as a condition of the right or privilege of attending the public schools generally, or during the occurrence of certain emergencies, or upon the happening of certain contingencies or conditions, in respect to the prevalence of smallpox. The powers of the State board of health, though quite general in terms, must be held to be limited to the enforcement of some statute relating to some particular condition or emergency in respect to the public health; and, although they are to be fairly and liberally construed, yet the statute does not, either expressly or by fair implication, authorize the board to enact a rule or regulation which would have the force of a law changing the statute in relation to the admission, and the right of pupils of a proper school age to attend the public schools.”

It is not a question as to what the legislature might do,, under the police power, about requiring vaccination as a pre-requisite to attending school; nor is it a question of whether the legislature could confer this power upon the school board. The board of education is a creature of the statute. It possesses only such powers as the statute gives it. The legislature has said who may and should attend the public schools. It has nowhere undertaken to confer the power upon the school board to change these conditions by passing a general, continuing rule excluding children from the public schools until they comply with conditions not imposed upon them by the legislative branch of the government. In what I have said I do not mean to intimate that during the prevalence of diphtheria or smallpox, or any other epidemic of contagious disease, in a school district, the board may not, under its general powers, term porarily close the schools, or temporarily say who shall be excluded from the schools until the epidemic has passed; but what I do say is that the legislature has not undertaken to give them the power, when no epidemic of contagious disease exists or is imminent in the district, to pass a general, continuing rule which would have the effect of a general law excluding all pupils who will not submit to vaccination. I think the learned judge was right in saying the school board exceeded its power.

The order of the circuit court is affirmed.

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


author: Hooker, J.

text:
    KANGAS v. BOULTON.
    1. Logging Contract—Construction—Severability.
    A contract to cut and deliver all the merchantable timber' on certain lands for a specified price per M., varying according to the kind of timber, “all timber to be cut clean,” is an entire, and not a severable, contract.
    2. Same—Performance—Right of Lien. ,
    Where the owner of timber who has contracted for its cutting and delivery sees fit to accept what has been done as a full performance of the contract,- a subsequent purchaser of the logs cannot set up its nonperformance to defeat the claim of the contractor to a lien under the statute.

      3. Logging Lien—Discharge—Sale of Subject-Matter.
    The right to a statutory lieu on forest products is not lost because the property has been sold, and the entire purchase price received by the lienor in part payment of his claim.
    Error to Mackinac; Shepherd, J.
    Submitted April 17, 1901.
    Decided July 10, 1901.
    Attachment proceedings by Robert Nangas against Robert Boulton under the log-lien law. David C. Pelton and William Reid, copartners as Pelton & Reid, intervened as owners of the logs. From a judgment for plaintiff on verdict directed by the court, the interveners bring error.
    Affirmed.

      Frost & Sprague, for. appellants.

      Warner & Sullivan, for appellee.
   Hooker, J.

The plaintiff contracted in writing with defendant Boulton to cut all merchantable timber on certain lands, and to deliver the same at the “forks of the main river.” Upon such delivery he was to receive $6 per 1,000 for white pine logs, $4.50 for tamarack and hemlock logs, $2.75 for spruce wood per cord, 22 cents for cedar ties, etc., “all timber to be cut clean.” He claims that the contract was substantially completed, to the satisfaction of Boulton, though there is testimony tending to show that some little tamarack was not cut, a few ties left in the woods, some posts not peeled, etc. A writ of attachment was issued against the property under the log-lien law, and it was duly levied, and an inventory made. Defendants Pelton & Reid intervened, claiming to have bought the property from Boulton, except some pulp wood. The declaration did not refer to the contract, but was in the nature of a count for labor, specifying the property, and claiming a lien. No question arose over its sufficiency. The pleas are not shown, if any were filed, though it was stipulated on the trial that Boulton was represented by Frost & Sprague, and that his plea should be the general issue. The court refused to permit the introduction of proof that Pelton & Reid had paid the purchase price for the property. A verdict was directed for the plaintiff, and defendants Pelton & Reid have appealed. Whether or not Boulton did is not made clear. It is contended by their counsel:

1. That testimony of the admissions of Boulton that the contract was performed to his satisfaction was not admissible, and, at all events, was not binding upon Pelton & Reid; and that they may dispute plaintiff’s lien upon the ground that the contract has not been performed. They also deny his right to recover for work and labor, because he offered no proof of the value of his services; the contract, as made, not having been performed.

2. That, the purchasers having paid the full contract price, the lien is discharged from the property purchased by them.

The log-lien law (3 Comp. Laws, § 10756 et seq. ) in terms gives a lien on forest products to those who perform labor upon them. It covers cases of laborers, who usually have no other claim than an implied contract, and contractors and subcontractors, who have special and definite contracts. It is claimed that while, as between the employer and employe, one who has accepted the benefits of labor rendered under a special contract, which is not fully performed, may be liable to an action for work and labor, the employé may not assert his lien for what is thus recoverable, being precluded by the failure to completely perform his written agreement. Haughton v. Busch, 101 Mich. 267 (59 N. W. 621), is cited in support of this claim. The question there before the court involved a common-law lien, and the question whether the same rule should be applied to cases of statutory lien was expressly reserved.

Before the property of the appellants can be subjected to the lien, the plaintiff must show himself entitled to a judgment against Boulton. Such judgment must be obtained upon one of two theories, viz.: (1) That he has fully performed his special contract; or (2) that he has performed labor, the results of which Boulton has appropriated. A judgment cannot rest upon the latter theory in this case, for the reason that the contract is an entirety, not-severable, and there is no proof of the value of the services actually rendered. It is true that the contract specifies a price per 1,000 feet for logs delivered, but that includes compensation for a full performance of the special contract. It therefore becomes unnecessary to determine whether the lien law should be applied in such a case, except it be for the purpose of another trial. The judgment must be reversed, unless we can say that the court was justified by the proof in instructing the jury that the special contract was performed. Defendants’ counsel say that the record shows that the land was not cut clean, that some of the products were left in the woods, and that the drive was not all brought down to the forks of the main river; and the record does contain such testimony. It was competent, however, for Boulton to accept what was done as a full performance of the contract, and we think such is the only inference deducible from the record. He appears to have accepted the logs and appropriated them without complaint. The record does not show any very important departures from the contract, and although Boulton was a party, represented by appellants’ attorneys, he set up no such claim either by pleading or evidence. It does not appear that he ever complained. He had an undoubted right to accept what was done as a performance, and the appellants have no right to question it. See Wildey v. School District, 25 Mich. 426; Andre v. Hardin, 32 Mich. 327; 7 Am. & Eng. Enc. Law (2d Ed.), p. 145, and notes 8, 9; Bush v. Brooks, 70 Mich. 459 (38 N. W. 562).

This view of the case renders a discussion of other questions unnecessary, except that pertaining to the discharge of the lien by payment of the purchase price. The court excluded testimony tending to show that the plaintiff had received the entire purchase price paid by Pelton & Reid, upon the theory that it was immaterial. In this we think he did not err. They took this property charged with the lien in its entirety, and it was beyond the power of Boulton and themselves to devest the property of this charge by a sale and purchase for a less sum. While it is true that the purchaser may not have become personally liable for more than the purchase price, it is'equally true that the lien, like that of a mortgage, was not affected by the sale.

The judgment must be affirmed.

The other Justices concurred.


text:
    ANDERSON CARRIAGE CO. v. PUNGS.
    1. Pleading—Bill op Particulars—Amendment—New Cause op Action.
    A bill of particulars in a suit in justice’s court, setting up a claim on a promissory note, may be amended in the circuit so as to claim for money advanced at defendant’s request on account of such note, since the amendment does not introduce a new cause of action.
    2. ‘Corporations—Sale op Stock—Contract to Vacate Office— Ratification—Right to Salary.
    A. and P. were stockholders and officers of a corporation. Dissensions having arisen between them, P. gave A. an option to purchase his stock. The purchase was afterwards made, A. and two others, constituting three of^the five directors, giving their note for part of the purchase price, and P. agreeing, as part of the consideration, to sever all connection with the concern and at once vacate his' office. Soon thereafter the three directors mentioned held a meeting, at which they treated P.’s office as vacant and elected a successor. Held, that, conceding that the directors did not act collectively as such in contracting with P. for his withdrawal from the corporation, their action was more than personal, and was ratified on behalf of the corporation at the subsequent meeting ; and that, therefore, the corporation was not liable to P. for salary as such officer subsequent to the sale of his stock.

      3. Same—Meeting of Directors—Notice.
    A director in a corporation, who has disposed of all of his interest therein, cannot complain that he had no notice of a subsequent meeting of the directors.
    Error to Wayne; Carpenter, J.
    Submitted April 17, .1901.
    Decided July 10, 1901.

      Assumpsit by the Anderson Carriage Company against William A. Pungs for goods sold and delivered. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Barbour & Rexford, for appellant.

      Russel & Campbell, for appellee.
   Hooker, J.

The plaintiff’s claim, for which this action was brought, is not denied. The questions before us relate to two items of set-off. The defendant was a large stockholder and director in the plaintiff company, its name then being the Pungs-Anderson Manufacturing Company. He was also treasurer and general manager, being elected on September 27, 1898. His salary was fixed at $5,000 per year, $416.66 being payable on the 1st day of each month. Mr. Anderson was also a stockholder, and, dissensions having arisen between them, Pungs gave Anderson an option in writing, as follows:

“ In consideration of one dollar, to me in hand paid by W. C. Anderson, and other considerations, I hereby give said Anderson an option to purchase at par at any time on or before June 1st, 1899, all my holdings of the capital stock of the Pungs-Anderson Manufacturing Company, of Detroit, Michigan; this option being conditioned that at the same time, or before my stock is transferred, I shall be released from all obligations of said company, and my property which is pledged as collateral to any of its obligations shall be released and delivered over to me.

“Dated Detroit, April 15, 1899.

[Signed] “W. A. Pungs.”

Pungs had stock to the amount of $47,800, par value; and on May 5, 1899, Anderson paid $21,000 or $22,000 in cash to Pungs, and on the same day Pungs received the note of Anderson, Newcomb, and Locke, all being directors (of whom there were five), for $25,000, secured by stock to the amount of $50,000, deposited with Hayes as trustee. The trust agreement is as follows:

• “Detroit, Mich., May 5th, 1899.

“ This is to certify that P. W. Hayes, as trustee, is hereby authorized to surrender to' Messrs. Wm. C. Anderson, W. M. Locke, and C. A. Newcomb fifty thousand (50,000) . dollars of the stock pledged as collateral to a certain note for twenty-five thousand (25,000) dollars made by the parties named in favor of W. A. Pungs, and Messrs. Anderson, Locke, and Newcomb hereby acknowledge receipt of said stock, which is to be transferred on the books of the Pungs-Anderson Manufacturing Company to Messrs. Anderson, Locke, and Newcomb in such number of certificates, and for such amounts, as they may elect between themselves.

‘ ‘ Said stock, as soon as issued, is to be assigned in blank, properly stamped with revenue stamps, and witnessed, and returned to said Hayes, to be held by said. Hayes as collateral security to said note, in accordance with its terms; and said Hayes is hereby authorized to accept payments on said note in sums of five thousand (5,000) dollars, and to deliver five thousand (5,000) of said stock whenever a payment of that amount is made on said note, and to surrender all of the balance of stock when the note is paid in full.

[ Signed ] “ W. A. Pungs.

“W. M. Locke.

“W. C. Anderson.

“C. A. Newcomb.”

. The new stock issued, and was deposited May 7, 1899. At the time these things took place, Pungs was indorser of the company’s paper to a large amount. He was relieved from this on May 5, 1899, except .two notes, of $2,500 each, held in Chicago. These were paid in August, 1899, by the company.

The company had taken from one Warren a note for $137, due June 1, 1898, and Pungs, as treasurer, discounted this note at the Preston National Bank before maturity. When it became due, it was protested, Warren having been garnished in Connecticut. Pungs was spoken to about it by the cashier, and replied that the company did not want to take the note back, its defense to the garnishment being that the note was out of its possession; and offered to put up his personal note for $137, and guarántee them, until they had forced collection of the note. He accordingly gave his note for $142. Pungs testified that he paid his note, and had never been reimbursed. This item was as follows in the bill of particulars: “ F. M. Warren’s note, indorsed by plaintiff. Principal, $137; interest and protest fees, Warren note, $9.51.” Objection being made to the proof, the court permitted defendant to amend the bill of particulars “with an item added;” i. e., “Money advanced by defendant for the use and benefit of plaintiff, at plaintiff’s request, on account of the F. M. Warren note, indorsed by plaintiff. Principal, $137; interest and protest fees, $9.51.” Afterwards the court determined. that this was improperly permitted, and instructed the jury that no allowance should be made for this item. My Brethren think that he erred in this, and that the case is not within the rule of Fowler v. Hyland, 48 Mich. 179 (12 N. W. 26); Loranger v. Davidson, 110 Mich. 605 (68 N. W. 426); Frohlich v. Graulich, 113 Mich. 65 (71 N. W. 477), —for the reason that the claims under the original and amended bills of particulars relate to the same transaction.

The remaining question relates to the item for salary as treasurer from May 5 to June 1, 1899. On May 8th a meeting of the directors was held, three being present, and the record shows that the president stated that Pungs had sold his entire stock, thereby causing a vacancy in the board of directors and in the office of treasurer and man. ager; whereupon Locke was elected to fill the vacancy as treasurer, and one Stevens as director. Pungs claims that he continued treasurer during the month of May, and that late in May he sent in his resignation, to take effect June 1, 1899. The court instructed the jury as follows:

“There is just one question in this case to be submitted to you, and that is whether or not Mr. Pungs, the defendant, is entitled to his salary from the 5th of May to the 1st ■of June, 1899. You have heard'the testimony of these various witnesses produced here. On the part of Mr. Pungs, it is plain that his salary was to continue until he was released from his obligations on certain notes; that he subsequently waived this, and put in a resignation, to take effect on the 1st of June. Other witnesses produced by the plaintiff in this casé testified that it was the arrangement that Mr. Pungs should vacate his position on the 5th of May, and that his salary should then cease. Now, that is peculiarly a question for you. What was the agreement ? If it was the agreement between these parties that Mr. Pungs’ salary should cease when that stock was transferred, then Mr. Pungs is not entitled to that salary after the 5th of May. If, on the other hand, it was the agreement that his salary should continue until he was released from his obligations on this outstanding paper, then he is entitled to his salary from the 5th of May to the 1st of June.”

Exception was taken to this. It is defendant’s claim that his office was not made vacant by the sale of his stock; that there is no evidence that, as part consideration for the purchase of his stock, he agreed to vacate the office; and that, if there was such contract, it was between him upon one side, and Anderson, Locke, and Newcomb upon the other, and that the plaintiff was not a party to it.

The jury found that Pungs did agree to get out of the company, and give up his office, upon the sale of his stock, and we think the evidence indicates that it was the understanding of all that he should. We think, moreover, that he is in no position to deny plaintiff’s right to treat the office as vacant. It is apparent that the action of the members of the board of directors was not merely personal. The interests of the concern demanded a change, and its officers negotiated with Pungs to bring it about. We cannot say, as a legal conclusion, that this was a personal contract between the individuals. If, in negotiating the contract, they did not act collectively, thej>- all signed the obligation for the stock and the trust agreement. It is not clear that they did hot act collectively as directors in authorizing or making this contract with Pungs to sell his stock and get out of the concern, taking the stock as individuals as a means of accomplishing it. Indeed, it is more than probable that they did so. Three of the four directors remaining met soon after, and, acting upon the understanding that Pungs had severed his connection with the concern, elected a successor, thereby officially recognizing and acting upon the arrangement of which every one of them had knowledge. It is said this was not a valid meeting, because Pungs was not notified; but, if a notice was necessary,—which we do not intimate,—it is no concern of his. No member of the corporation has found any fault with this action. Thereis little reason to doubt that the board has ratified this whole transaction, if they did not lawfully participate in it. We áre of the opinion that, under the evidence in the case, it was proper for the court to say that, if the jury should find that Pungs agreed, as a part consideration for this purchase, to abandon his office, they should not allow the item for salary.

We think it unnecessary to discuss other questions. The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    JOHNSON v. HENRY.
    1. Contracts—Performance—Approval.
    Under a contract “to stump and clear, ready for the plow,” certain land for an agreed price per acre, payable “ as fast as the land is ready for the plow and approved by” the owner, such approval is a prerequisite' only to the right of the contractor to payments in advance of a full performance of the contract.

      2. Same.
    Under sucli a contract, such roots must be taken out as interfere with plowing, whether open to casual observation or not.
    3. Same—Waiver of Damages.
    The right to damages for failure to complete a contract within the time limited is not necessarily waived by permitting or requiring the defaulting party to complete it.
    4. Same—Evidence.
    In an action for labor, testimony tending to show the wealth of the defendant is improperly admitted.
    5. Same—Instructions—Costs.
    It is error to instruct the jury, in an action on contract, as to the amount that plaintiff must recover to entitle him to costs.
    Error to Montcalm; Davis, J.
    Submitted April 19, 1901.
    Decided July 10, 1901.

      Assumpsit by William Johnson against Charles E. Henry for work and labor performed under an express contract. From a judgment for plaintiff, defendant brings •error.
    Reversed.

      Frank A. Miller and V. H. & H. H. Smith, for appellant.

      L. G. Palmer and George E. Nichols, for appellee.
   Hooker, J.

This cause was tried on the special count of plaintiff’s amended declaration. A written contract was made by the parties, whereby the plaintiff was to clear some land for the defendant. The following is a copy of the contract:

“ This agreement, made and entered into this 16th day of July, A. D. 1895, between William Johnson, of the first part, and Charles E. Henry,of the second part, Witnesseth: Said party of the first part agrees to stump and clear ready for the plow, and to build a stump fence around and across through the middle, east and west, of the following described land, to wit: The southwest quarter of the southeast quarter of section ten in the township of Day, Montcalm county, Mich.; also to stump and clear a strip of land on the south side of the northwest quarter of the southeast quarter of said section ten, as wide as is already stumped on the south side along the road of said described land. Said work to be commenced on or before the first day of August, 1895, and to be completed on or before the first day of June, 1896. Said second party to pay said first party the sum of twenty dollars per acre, as follows: Four dollars per acre to be applied on the payment of a certain chattel mortgage given by said first party to said second party, and the balance of sixteen ($16) dollars per acre to be paid to the first party as fast as said land is ready for-the plow and approved by said second party. Said fence to be built at least six feet high, and stumps to be laid close together and laid straight.

“(Signed) Will Johnson.

“(Signed) Charles E. Henry.

‘ ‘ (Signed) W. W. McKune. ”

From a verdict and judgment in favor of the plaintiff, the defendant has appealed.

Counsel for the defendant claim that, by the terms of this contract, the plaintiff was entitled to full pay for- his work when the land was fitted for the plow and approved by defendant, and that the defendant was under no obligation to pay for the work until it was completed to his satisfaction. We are of the opinion that the contract should not receive such a construction. Upon the completion in accordance with the requirements of the contract, the plaintiff was entitled to full payment; and he was entitled to earlier payment, at the agreed price per acre, for such portions as should have been fitted for the' plow and approved by the defendant.

It is contended that a verdict should have been directed for the defendant upon the ground that the uncontradicted testimony shows that the contract was not performed.. We do not so understand the record. The plaintiff testified that he cleaned the land, and left it in good condition for the plow. What is a fit condition for the plow, and whether it was so left, are questions for the jury; and so is the question whether defendant waived the right to complain of a failure to complete the work at the time specified.

As has been seen, the court permitted the jury to determine that the contract had been performed. The contract made was that plaintiff should “stump and clear ready for the plow.” There was testimony tending to show that this was not done; that several wagon loads of roots were left in the ground, and that these were so near the surface as to interfere with plowing; and that the holes were not filled. Plaintiff testified that he took out such roots as he saw in the ground, after taking out the stumps. If, under any theory, it can be said that any of the roots could be left in the ground, under this contract, it is obvious that it was the plaintiff’s duty to take out such as would interfere with the plowing, whether they were open to casual observation or not. An inspection of the stumps would readily have shown whether roots were left in the ground or not. The court- instructed the jury upon that subject as follows:

“ I say to you, in this connection, a man is .not, in taking a contract of this kind, in the law, bound to look for the nonexisting or unseen things, but he should use all reasonable diligence and care in making the ground in such condition that it could be said it was in a reasonably fit condition for the plow. It must be in that condition that, when he claims he is through with his contract, that it could be said that it had all appearance of being ready for the plow.”

This was erroneous.

The court said to the jury, upon the subject of extension of time, that:

“The plaintiff claims, by mutual agreement, the time was extended. If it was, then the defendant waived the right to insist upon its fulfillment at that time, or for any damages arising therefrom.”

There may be circumstances which show a waiver of the right to recover damages for nonperformance within the prescribed time. Wildey v. School District, 25 Mich. 419; Barnard v. McLeod, 114 Mich. 73 (72 N. W. 24); Blodgett v. Foster, 120 Mich. 392 (79 N. W. 625). But a waiver does not necessarily exist if the defaulting contractor is permitted, or even required, to go on and finish his contract. It would be his duty to do all possible to lessen the damage, by doing the work as soon as possible. Williams v. Hodges, 41 Mich. 695 (3 N. W. 189); Fildew v. Besley, 42 Mich. 100 (3 N. W. 278, 36 Am. Rep. 433). See note to Wildey v. School District, supra; Ruff v. Rinaldo, 55 N. Y. 664.

Complaint is made that counsel were allowed to show that the defendant was possessed of much property, while plaintiff'was a laborer, and of the charge to the jury that the plaintiff would not be allowed costs unless they should render a verdict of $100. We think there was no occasion to show that this defendant had over 1,000 acres of land under cultivation. The court so understood it, and endeavored to cure it by directing the jury to disregard it. The statement regarding costs was of the same character. There was no propriety in suggesting to the jury that it would be necessary to give the plaintiff a verdict of $100, to enable him to recover costs. Counsel suggest that it does not appear who had been talking about costs, and that it may have been defendant’s counsel. Aside from the improbability of this, the charge was given in the language of a request offered by the plaintiff. It has been twice held that such instruction is erroneous. See Sixma v. Montgomery, 98 Mich. 193 (57 N. W. 108); Phillips v. Benevolent Society, 120 Mich. 142 (79 N. W. 1).

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Montgomery, C. J.

text:
    O’CONNOR v. AUDITOR GENERAL.
    State Tax Lands—Sale —Nonpayment of Tax Liens—Void Sale—Suspension of Lien.
    The rule invalidating a deed of State tax land for failure to pay-all taxes remaining a lien thereon at the time of purchase, as required by section 84 of the tax law (Act No. 262, Pub. Acts 1899), does not apply -where a sale had been made for the only tax as to which such default could be claimed, which sale, though void, was not set aside until after the purchase from the State; section 73 of said act having the effect to suspend the lien of the State for the tax underlying the first sale during the time that such sale remained uncanceled.

      Mandamus by William O’Connor to compel Perry P. Powers, auditor general, to cancel a tax deed and refund tbe purchase money.
    Submitted May 7, 1901.
    Writ denied July 10, 1901.

      Thomas, Cummins & Nichols, for relator.

      Horace M. Oren, Attorney General, for respondent.
   Montgomery, C. J.

Relator purchased the land described in tbe petition at tbe auditor general’s office on December 13, 1899. Deed was issued August 1, 1900. At tbe time of bis purchase there did not appear to be any other taxes remaining a lien on tbe property, but the sale to Mr. Keith was afterwards determined by tbe auditor' general to be void, and bis deed was canceled. The deed was canceled on the ground that no proof of publication was filed; but tbe deed was void for the further reason that, when Mr. Keith purchased, tbe tax of 1896 was a lien, and was not paid by him. Relator has made proper application for refunding, which has been refused by the auditor general, and he now asks mandamus to compel this action.

The contention of relator is that, as the sale to Keith was void, the taxes earned by that deed remained a lien upon the land, and that, as they were not exacted of relator, his title fails, and he is entitled to have his deed canceled and the money refunded. A deed issued as was that of Keith has been said to be void. Hughes v. Jordan, 118 Mich. 27 (76 N. W. 134); Cockburn v. Auditor General, 120 Mich. 643 (79 N. W. 931)- But this expression must be understood as having reference to the validity of the deed as to those asserting claims to the land under the circumstances stated in the cases cited. It does not follow that when a sale has been made through inadvertence by the auditor general, and a deed given, so that upon the face of the record no lien appears against the land up to a given date, a sale may not be made for the taxes of subsequent years which is valid and effectual to convey a title, subject only to a reassessment of the taxes, or an enforcement and collection thereof. Section 73 of the statute as amended (Act No. 262, Pub. Acts 1899) provides:

“ If a sale made under this act is set aside by any court or is canceled by the auditor general as provided in this act, the auditor general shall refund to the purchaser the amount paid at the time of the sale, with interest thereon at the rate of six per cent, per annum from the time of the purchase to the time when said sale was set aside or canceled, out of the general fund of the State. In such case the auditor general shall charge back to the county all taxes, and the interest and charges thereon, for all years for which it has been held that the taxes were invalid or the description erroneous, but for all years for which no invalidity has been found he shall proceed to enforce the collection of the taxes for all years refunded as herein provided, as in the case of taxes for which sale has not been made.”

This section indicates that a sale which is subject to be set aside suspends the lien of the State, which is only revived when the sale is set aside. As the State could not proceed to collect these taxes until the sale to Keith was set aside, it cannot, we think, be said that the taxes “re- ' mained ” a lien on the land, within the meaning of section 84.

The writ will be denied.

The other Justices concurred.


text:
    HOLLENBECK v. BREAKEY.
    1. Bastardy—Bond—Supersedeas—Common-Law Obligation.
    A respondent in bastardy proceedings, having been found guilty, was ordered to pay to the mother a specified sum per month for the support of the child, and to give to the superintendents of the poor the bond provided for by 2 Comp. Laws, § 5905. He gave instead a bond running to the people of the State, conditioned that he should prosecute a writ of error to effect, and pay and satisfy such judgment as should be rendered against him thereon, and that, if the cause should not be taken to the Supreme Court, he should pay, satisfy, and fully comply with the order above mentioned. The case was not reviewed in the Supreme Court, but the bond was treated by the parties as operating to stay proceedings on the judgment. Held, that the bond was enforceable as a common-law bond, if supported by a sufficient consideration.
    2. Same—Assignment—Right op Action.
    The mother and the superintendents of the poor being the only persons beneficially interested in the bond, an assignment by the superintendents to the mother entitled her to bring an action thereon.
    3. Sealed Instruments—Pleading—Want of Consideration.
    In an action on an instrument under seal, want of consideration cannot be interposed as a defense unless notice thereof is given with the plea. 3 Comp. Laws, §§ 10185, 10186.
    Error'to Calhoun; Smith, J.
    Submitted May 7, 1901.
    Decided July 10, 1901.

      Debt by Birdie Hollenbeck against Edward Breakey and others upon a bond in bastardy proceedings. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      L. B. Tompkins (Herbert E. Winsor, of counsel), for appellants.

      Hatch & Page, for appellee.
   Montgomery, C. J.

This is an action of debt on a bond running to the people of the State of Michigan, their - agents or assigns, reciting that judgment had been rendered against the defendant Edward Breakey in an action of bastardy at -the complaint of plaintiff, upon which judgment an order was entered providing that said Edward Breakey pay to the plaintiff the sum of $10 each and every month from the 7th day of April, A. D. 1896, to and including the fifteenth birthday of the child of plaintiff, whose father said Edward Breakey was adjudged to be; and providing further that, to secure said payments, said Edward Breakey should give á bond in the sum of $1,500, with sufficient sureties, to be duly and. properly approved. The bond provided for in the order was to run to the superintendents of the poor of Calhoun county, “to indemnify the county of Calhoun against expense or loss in the support and maintenance of said child,” being the bond provided for in the statute. By an order entered subsequently, the time for filing said bond was extended to July 20, 1896, the date of the bond here in suit. The bond in suit further recites that said Edward Breakey, desiring to appeal from said judgment and order, had taken, by an order of the court, an extension of time to settle a bill of exceptions, and an order staying all proceedings in said cause, and was preparing, and intending with all due dispatch to prepare and settle, said bill of exceptions, and cause to be issued from the Supreme Court a writ of error removing said cause to the Supreme Court. The condition of the bond is that said Edward Breakey should proceed with all due diligence to settle said bill of exceptions, issue said writ of error, and prosecute the same to effect, and pay and satisfy such judgment as should be rendered against him upon writ of error in the Supreme Court; and that in case, for any reason, said cause should not be taken to the Supreme Court for review, he should pay and satisfy and fully comply with the above-mentioned order in all its terms and conditions. The bond was indorsed on the back: “Filed July 20, 1896. William J. Gregg, Clerk.” Defendant gave no other bond in the bastardy case. Counsel agree that the case could not be reviewed by writ of error. The Supreme Court denied a writ of certiorari.

• The court found that the bond was a supersedeas bond, and executed by defendant and his sureties for the purpose of having a review of the case in the Supreme Court upon writ of error; also that “said Edward Breakey was not committed to jail on the said judgment of the court entered against him, the parties seeming to have the idea that the bond given was sufficient until a review of the case.” . The plaintiff has cared for and supported the child ever since it was born. Neither Edward Breakey nor the sureties on the bond have paid to the plaintiff, or to any one for her, any money for the support of the child. Calhoun county has not been put to any expense for the care and maintenance of the child. The child was living at the time this case was tried, and being cared for by the plaintiff. The court found that Calhoun county, by a majority of the superintendents of the poor of said county, assigned to plaintiff all the right, title, and interest of the people of the State of Michigan in and to said bond by an assignment which recited the consideration that plaintiff “ continue in the future, as she has in the past, to support and maintain said child,” and that the amount recovered upon said bond be used for the support, maintenance, and education of the child. Plaintiff recovered a judgment against Edward Breakey and two of the sureties for the amount due her from Edward Breakey under the judgment in the bastardy case up to the date of the commencement of this action, with 5 per cent, interest.

The only question open on the record is whether the findings of fact support the judgment. The question of first importance is whether this bond falls within the rule laid down in Howard v. Hess, 63 Mich. 725 (30 N. W. 333), and is invalid for want of consideration, or whether it is within the rule of the case of Healy v. Newton, 96 Mich. 228 (55 N. W. 666).’ We think the latter case controls. The bond contains a condition to “pay and satisfy and fully comply with ” the order of the court above recited in case the cause, for any reason, shall not be taken to the Supreme Court. After this bond was filed, the counsel representing plaintiff’s interests consented by stipulation to various extensions of time for a settlement of a bill of exceptions. The findings do not, it is true, state that there was any stay of proceedings; but the seal imports a consideration, and, if defendants disputed the consideration, they should have given notice of this defense. 3 Comp. Laws, § 10186; Boyer v. Sowles, 109 Mich. 481 (67 N. W. 530); Robson v. Dayton, 111 Mich. 440 (69 N. W. 834). It is urged that plaintiff has not shown herself entitled to sue on the bond; but, as the superintendents of the poor and plaintiff are the only ones beneficially interested in the bond, an assignment by the superintendents of the poor vests the entire interest in the plaintiff.

Judgment is affirmed.

The other Justices concurred.


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    DAVIS v. MICHIGAN MUTUAL LIFE-INSURANCE CO.
    Statute of Frauds—Conteaot Not to be Performed Within a Year—Evidence.
    In an action for an alleged wrongful discharge from employ, ment, plaintiff testified that on June 23d he orally accepted defendant’s offer of a position at a specified yearly salary; that he went to work July 5th, and was paid from the 1st; that he told defendant he would like a few days to himself before beginning work; but that he had no conversation with defendant, subsequent to June 23d, in relation to the employment. Held, not to show a contract to begin work immediately, wlrich was changed by subsequent arrangement, but a contract which was to take effect in the future, and which, if for a year’s service, was void under the statute of frauds.
    Error to Wayne; Frazer, J.
    Submitted May 7, 1901.
    Decided July 10, 1901.

      Assumpsit by Jesse B. Davis against the Michigan Mutual Life-Insurance Company for the breach of, a contract of employment. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Jasper G. Gates, for appellant.

      Wilkinson, Post & Oxtoby, for appellee.
   Montgomery, C. J.

This is an action for damages for alleged wrongful discharge. Plaintiff testified to a conversation with Mr. Looker, the president of defendant company, in February, 1898, in which Mr. Looker offered plaintiff a position in the actuarial department of defendant, and offered to start him in at $1,000 a year, and raise his salary as soon as he learned the working of the office. Plaintiff testified further:

‘£ The next conversation I had with Mr. Looker on this subject was in the latter part of June, just as the time for school closed. I came to him at that time to tell him that I had made up my mind to resign my position as teacher in the high school, and take up that work. And the definite proposition he had made was again repeated,—that they would give me a thousand dollars a year, and raise my salary as soon as I learned the working of the office. I went to work on the 5th of July.”

On cross-examination he testified:

“It would be the last week in June,—at the time when school closed. School closed on June 22d, and it was probably the day after school closed. This conversation occurred somewhere near June 23d,

Q. You never had any other conversation with him, after that, in reference to the employment, until the day you were discharged ? '

“A. No, sir. * * * I went to work for the company on the 5th day of July. I went to Mr. Looker, and told him that I had been working during the year pretty hard; I was tired, and would like to have one or two days’ rest between the close of the school term and when I should come to work. They paid me from July 1st. I had this talk with Mr. Looker, stating when I could go to work. It was between the latter part of June-—•

Q. The 23d?

“A. About that time.”

Plaintiff testified that he ‘ ‘ didn’t know when they paid, whether quarterly or at what time,” and that “nothing was said about the length of time the employment was to last.” Plaintiff received his pay monthly. He was given over a month’s notice. There was a conflict in the testimony as to whether there was cause for the discharge. The court instructed the jury that the contract for a year’s employment from July 1st could not have been performed within a year, and was, therefore, void under the statute of frauds, and directed a verdict for the defendant. Plaintiff contends:

1. That the testimony does not show that plaintiff’s employment was not to begin until July 1st, but, on the contrary, that he was to begin work immediately; and that this was changed by a subsequent arrangement.

2. That the agreement to employ at a yearly salary constituted an implied contract to employ for one year from tbe making of the agreement.

We think plaintiff’s testimony that he had no other conversation with Mr. Looker, in reference to the employment, after the conversation in which he was hired, until the day he was discharged, is inconsistent with the theory that the arrangement that he should not go to work for a few days was made at a subsequent conversation. His testimony on this subject is easily susceptible of the construction that the entire matter was disposed of at one conversation, and we think this is a necessary construction, in view of the statement just referred to. In finding for plaintiff, the jury would have had to rely upon the conjecture that he did not mean what he said when he testified that there were but two conversations in reference to the employment.

Judgment affirmed.

The other Justices concurred.


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    FROHLICH v. CARROLL.
    1. Mechanics’ Liens—Husband as Wife’s Agent.
    A husband contracted in his own name fpr the erection of houses on land belonging to his wife. She wanted the houses built, knew they were being erected, used funds of her own, and borrowed more, to pay on the contract, and paid some of the bills with her individual checks. Held, that the premises were liable to a lien for labor and materials entering into the construction of the houses, as the contract was that of the wife, entered into by the husband as her agent.
    2. Same. '
    Such conclusion is not altered by the fact that the husband furnished some of the money used in building.
    3. Same—Excessive Claim of Lien.
    That a claim of lien is excessive by a small amount, due to the unintentional omission of a credit, is not fatal to the lien.

      4. Same—Completion op Contract.
    Where complainant completed his contract to furnish materials for defendant’s buildings, except certain doors and drawers, the dimensions of which were not furnished to him, he being at all times ready to supply them when he should receive the dimensions, his right to a lien is complete.
    5. Same—Husband and Wipe—Fraud—Error in Statement op Lien.
    Where a husband contracted in his own name-, but on behalf of his wife, for the erection of buildings on her land, they colluding between themselves to defeat the claims of those who should furnish labor and materials therefor, the fact that a statement of lien for materials so furnished mentioned the husband as the owner of the land, and that a copy of the statement was served on him alone, will not prevent a lien from attaching to the premises.
    6. Same—Payments by Owner—Distribution.
    Payments made by the owner of premises for labor and materials entering into the construction of a building thereon, though founded on the contractor’s sworn statement provided for by 3 Comp. Laws, § 10713, must be distributed pro rata among all claimants of whom he has notice, to entitle him to protection against a claim of lien.
    7. Same—Appeal—Computation op Amount Due.
    Where, on appeal in a mechanic’s lien case, defendant Claims that too much was allowed the lienors by the circuit judge, but does not point out any errors in the computation, or in the rules by which the computation was made, the decree will not be disturbed.
    8. Homestead—OaauPANOY.
    Where several dwellings are erected on one lot, the homestead right of the owner is limited to the premises actually occupied.
    Appeal from Wayne; Rohnert, J.
    Submitted May 8, 1901.
    Decided July 10, 1901.
    Bill by Edward Frohlich against Margaret Carroll, William Cocker line, the Yeomans Lumber & Box Company, Henry C. Weber, and others to enforce a mechanic’s lien. From a decree for complainant and defendant lienors, defendant Carroll appeals.
    Affirmed.

      , Wilkinson & Younglove, for complainant:
    To the point that defendant’s husband was her agent to such an extent as to permit a lien to attach, counsel cited: Phil. Mech. Liens, § 104; Busch v. Wilcox, 82 Mich. 315 (46 N. W. 940); Wheaton v. Trimble, 145 Mass. 345 (14 N. E. 104, 1 Am. St. Rep. 463); Bimmey v. Getter-man, 63 Md. 424; Thompson v. Shepard, 85 Ind. 355; Watson v. Carpenter, 27 111. App. 492; .Bevan v. Thackara, 143 Pa. St. 198 (22 Atl. 873, 24 Am. St. Rep. 529); Tuttle v. Howe, 1*4 Minn. 145; Me Grato v. Godfrey, 14 Abb. Prac. (N. S.) 397.

      Jay Butter, for appellant:
    ■Cited to the contrary: 3 Comp. Laws, § 10711 (amendatory of the law as previously existing); Emery v. Lord, 26 Mich. 431; West v. Laraway, 28 Mich. 464; Willard v. Magoon, 30 Mich. 273; Newcomb v. Andrews, 41 Mich. 520 (2 N. W. 672); Morrison v. Berry, 42 Mich. 393 (4 N. W. 731, 36 Am. Rep. 446); Holmes v. Bronson, 43 Mich. 563 (6 N. W. 89); Eechheimer v. Peirce, 70 Mich. 440 (38 N. W. 325); Bank v. Gilchrist, 83 Mich. 253 (47 N. W. 104); Hillier v. Eldred, 91 Mich. 56 (51 N. W. 705 ); Luebe v. Thorpe, 94 Mich. 270 (54 N. W. 41); Hall v. Erkfitz, 125 Mich. 332 (84 N. W. 310).

      W. W. Wicker, for defendant Yeomans Lumber & Box Co.

      O. E. Angstman, for defendant Weber.
   Hooker, J.

Defendant Margaret Carroll purchased on March 14, 1898, lot 16 of block 12, etc., in the city of Detroit, for $2,746.40. The deed contained building restrictions, requiring her, in case of building, to erect not more than two single dwelling-houses fronting Avery avenue, and costing not less than $2,500 each if frame, and $3,500 each if brick. She afterwards obtained written permission from the grantors to have three houses built upon the lot, and on April 12, 1898, defendant William Cockerline entered into a written contract to construct the same. This contract purports to have been between him and Nicholas Carroll, who is, and then was, the husband of Margaret Carroll. Cockerline testified that he signed this contract upon the representation that Nicholas Carroll owned the premises. The complainant, a manufacturer of sash, blinds, doors, etc., contracted with Cockerline to provide material and do certain work in his line upon the houses, and this he did. Not receiving his pay, complainant sought to place a lien upon the premises, and seasonably filed a statement with the register of deeds setting up the fact of his contract with Cockerline; that he (Cockerline) had the contract for building a dwelling upon said premises; that there was due him thereon for materials and labor furnished under said contract $499.06; and that Margaret Carroll was the owner of the premises. This bill was filed to enforce the lien. Several other persons were made defendants, most of whom were subcontractors, who filed answers, and defendant Yeomans Lumber & Box Company filed a bill against Margaret Carroll, setting up their respective liens. The circuit court made a decree adjusting these liens, with provisions for their enforcement, and the defendant Margaret Carroll has appealed.

The court found that Nicholas-Carroll entered into this contract on behalf of his wife; in other words, that it was Margaret Carroll’s contract; and, notwithstanding counsel’s statement that “there is not a scintilla of evidence to that effect in that certified to this court,” we think the correctness of the court’s conclusion is beyond question. Margaret Carroll owned the land; she knew the buildings were to be erected thereon; she wanted them built; she used funds of her own, and borrowed more, to pay upon the contract; she drew her own personal checks to the complainant and other contractors; and she still owns the premises. She thereby recognized the contract as hers. The case is like any other case of contract made by an agent where the principal is undisclosed. See 1 Am. & Eng. Enc. Law (2d Ed.), 1139; Mechem, Ag. § 701, and cases cited. If it be said that the authority is not shown, we reply that we consider the record full of evidence tending to show it. It was unquestionably -her property, and she acquiesced in what her husband did in relation to it. It is said that Margaret Carroll did not furnish all of the money used; but we think it is immaterial even if her husband furnished some of it, as he claims to have done.

We do not discover that it is claimed that complainant did not perform his contract, except as to doors and drawers of the china closets, amounting to $24.79. It is, however, claimed that he was paid $15 for which he has not given credit. The item of $15 was overlooked; it having been credited to a running account by the bookkeeper, and not brought to complainant’s attention. It may have been proper to apply it in reduction of complainant’s claim, but should not invalidate his lien, under repeated decisions. The item of $24.79 was not furnished, but it was not complainant’s fault, as dimensions were not furnished him, and he has always been ready to furnish it when dimensions and details are given. We. think the learned circuit judge was correct in sustaining complainant’s right to a lien.

All of the other lienors, except the Yeomans Lumber & Box Company, filed liens against Margaret Carroll. Its statement mentioned Nicholas Carroll as the debtor, in reliance upon the information that he owned the premises, .and the supposition that he contracted in his own right. Notice of the lien was served upon Nicholas Carroll, who seems to have had full authority to represent his. wife. We think it should be held to bind her in this instance. The testimony of both Carroll and his wife, when taken in ■connection with the undisputed facts, convinces us, as it ■did the circuit judge, that the Carrolls have made a deliberate attempt to defraud the contractors who file these claims. The pretense that Mrs. Carroll gave to her husband $2,500, and paid him $800 more that she owed him, so that he might build houses of his own on her land, is too flimsy for credence; and we think, furthermore, that she is bound by the lien of the Yeomans Lumber & Box Company, and notice thereof given to her husband, and that she should not be permitted to take advantage of technical mistakes which were clearly due to deceit.

The court found that the contract price was $3,222; that defendant was entitled to damages for sundry defects, $204.16; leaving $3,017.84. The court’s computation was $3,018.54. Apparently, this was an 'error of 70 cents. The payments amounted to $2,862.09, leaving a balance of contract price unpaid of $155.75 to pay unpaid claims. The court found that the houses cost $332.85 more than the contract price, and that such amount and the damages allowed (i. e., $204) made a' total of $536.85,—substantially 15 per cent, of the contract price. He therefore reduced these liens to 85 per cent, of the amount due upon the claims, and allowed them. He sustained these liens as to the excess over $155.75, upon the finding that payments to that amount had been unwarrantably made. Counsel for defendant Carroll says in his brief:

“ The court below was in error in holding that when the contractor makes a sworn statement, and payments are made in accordance with the same, and it turns out'in the end that there is a deficiency, then such payments are illegal, because not prorated with others who furnish labor and material after such payments. The statute as to pro rata only applies to payments made in the absence of any statement, and this court held nothing to the contrary in the case of Fairbairn v. Moody, 116 Mich. 61, 65 (74 N. W. 386, 75 N. W. 469). The court below found that $2,862.09 had been paid by Nicholas Carroll upon the Cockerline contract, and that he was entitled to $204.16 damages, which would leave a balance of only $155.75 on the contract price; yet he orders a lien for $735.-43, and interest since November 1, 1898, with costs, including $90 solicitors’ fees. On the merits alone, had the case been against Nicholas Carroll, the decision ought to have been in his favor; but, as against Margaret Carroll, the decision below simply amounts to confiscation.”

Counsel for the complainant state in their brief that the learned circuit judge spent much time in computing the amounts due to the several parties. The appellant’s counsel has not shown us wherein there is an inaccuracy in the computation, or that he improperly applied the rule requiring a pro rata payment. He only insists that all payments were lawfully made, and does not give a list of payments, or their dates, or in any way attempt to show wherein the conclusion of the circuit judge was wrong. We think the cases cited by complainant’s counsel impose upon the defendant the duty of protecting all subcontractors of whom he has notice; and as counsel has not pointed out the mistakes of the circuit judge, and the evidence upon which his computation should be corrected, we must decline to sift them out of a record of 350 pages.

The decree of the circuit court subjects the liens to homestead rights, the Carrolls having occupied the corner house. It is obvious that they have no homestead rights in the other houses, and without discussing the propriety of allowing a homestead as against these liens, under the proofs, we pass the subject by saying that the parties were entitled to their liens against the other two houses, whether they were as against the corner house or not, and the defendant Carroll has no cause for complaint.

We are of the opinion that the decree should be affirmed, with costs, and it is so ordered.

The other Justices concurred.

       Viz.: Fairbairn v. Moody, supra; Smalley v. Gearing, 121 Mich. 190 (79 N. W. 1114).


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    MALBURG v. METROPOLITAN LIFE-INSURANCE CO.
    1. Life Insurance—Change of Beneficiary.
    The fact that a life-insurance policy provides that the production thereof by the company, and of a receipt in full, signed by any person furnishing proof satisfactory to the company that he or she is an executor or administrator, husband or wife, a relative by blood, or lawful beneficiary of the insured, shall be conclusive evidence that such sum has been paid to and received by the person entitled thereto, and the further fact that the policy is by its terms payable to “one of the persons” above described, do not obligate the company to change a beneficiary on the designation of another.
    2. Same.
    Where the beneficiary in a life-insurance policy, the insured, and the latter’s sister agree in writing, on a blank furnished by the company, reciting a valuable consideration, that the sister shall be substituted as beneficiary, and the sister thereafter pays the premiums, she acquires such an interest in the policy as cannot be devested by the act of the insured in designating a new beneficiary under a claim that the sister has failed to perform her agreélnent to support him.
    Appeal from Wayne; Frazer, J.
    Submitted May 10, 1901.
    Decided July 10, 1901.
    Bill by William H. Malburg, administrator of the estate of Albert T. Mandel, deceased, against the Metropolitan Life-Insurance Company and Anna Peltier, to determine the title to the proceeds of a policy of insurance. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Frank T. Lodge, for complainant.

      John C. Tobias, for defendant Peltier.
   Hooker, J.

The complainant is an undertaker, and has a claim for the burial expenses of one Mandel, amounting to $128.33 and upwards, according to the bill. The bill alleges that Mandel left no property, and that his only opportunity to obtain payment is through this proceeding, and that the Metropolitan Life-Insurance Company issued a policy for $1,000 upon the life of Mandel; that the premiums were paid by Mandel; and that, proofs of loss being made, it became the duty of the company to pay $1,000 in such manner and form as was dictated and directed by Mandel in his lifetime. It alleges fürther that Mandel died at the residence of one Louise Jungfer, an aunt, and, before his death, being anxious to repay her and to provide for his funeral expenses, he made a change of the beneficiary; that, when the policy was taken, his aunt, Mrs. Jungfer, with whom he lived, had been named as beneficiary, and when he left there it was assigned to his sister, on her agreement that she would furnish money to pay the premiums, and would take care of him, contribute to his support, and pay the expenses of his last sickness and funeral; that she refused to pay the premiums or to contribute to his support, and that Jungfer did these things; and that about the 23d day of March, 1900, he caused to be served on the company a notice directing it to change the beneficiary and make the policy payable to the estate of Mandel, instead of Anna Peltier, so that his creditors might be secured, whereby it became its duty to so pay it. It alleged further that the complainant had made application for letters of administration, and asked an order that the amount be paid to him. The answer of the company admits that $214 was due, admits suit by Anna Peltier, and expresses a willingness to pay that sum to such person as the court shall direct. Anna Peltier answered, denying the allegations pf the bill. Her answer states that the policy was taken in 1892, when Mandel was 14 years old, by Mrs. Jungfer, who paid premiums for 5 years or more, and then voluntarily surrendered the policy, after which time Anna paid all premiums, and at the request of Mrs. Jungfer and Mandel the beneficiary was changed from Mrs. Jungfer to Anna Peltier, and that Mandel had no interest in the policy. The learned circuit judge heard the proof and dismissed the bill.

Mrs. Jungfer testified that she paid premiums until Mandel left her house, when she assigned the policy to Anna on the express agreement that she should pay the expenses if he was sick, and his funeral expenses if he should die, and support him if sick, and that he lived at the house of the witness for eight months before his death, and she cared for and supported him, and paid his expenses, except doctors’ bills. There was testimony that Anna had been requested by some gentlemen to transfer this policy to Mrs. Jungfer, and refused; also that she admitted that she had agreed to pay his expenses. Complainant testified that he performed the service at the request of Mandel’s brother, on the promise that he should be paid from the insurance. His letters of administration were introduced. Anna Peltier testified that she herself paid all the premiums after the assignment, which was not made upon the agreement stated; that Mandel lived with her until about six months before his death, and left of his own free will; and that no attempt was made to change beneficiary until after he became sick and left her house. The collector of the company corroborated Mrs. Peltier in regard to the payment of premiums.

We are unable to find evidence that the company was under an obligation to consent to a change of beneficiary upon designation of another, though the policy obligates it to pay to one of the persons named in the fifth condition upon its back. This condition was:

“ The production by the company of this policy, and of a receipt in full, signed by any person furnishing proof satisfactory to the company that he or she is an executor or administrator, husband or wife, a relative by blood, or lawful beneficiary of the insured, shall be conclusive evidence that such sum has been paid to and received by the person or persons lawfully entitled to the same, and that all claims and demands upon said company under this policy have been fully satisfied.”

The policy was assigned upon a blank furnished by the company, if the instrument can be called an assignment. It was, however, signed by Mandel, Jungfer, and Peltier, and contained the agreement, upon a valuable consideration, that Peltier should be substituted as beneficiary. Mrs. Peltier performed her promises, in part at least, and we think that she cannot be devested of her interest in this policy, under the facts shown. Whether she is liable for the services rendered is immaterial upon this record. The complainant is not entitled to the fund, and the decree dismissing the bill is affirmed.

The other Justices concurred.