text:
    BAINTON v. CLARK EQUIPMENT CO.
    1. Deeds — “Grant”—Restrictions.
    While the word “grant” under our statute is sufficient to pass a title in fee, its use in a conveyance may be restricted by the other language employed.
    2. Same — Construction—Intent. ■
    In the construction of deeds or other contracts, the primary end to be attained is, if possible, to ascertain clearly the intention of the parties.
    3. Same — Grant eor Street — Easements — Municipal Corporations.
    Where plaintiffs granted to a village certain land for street purposes, the interest acquired by the village was an easement for the benefit of the public, and not a title in fee which it could transfer by conveyance to a private corporation.
    4. Injunction — Riparian Rights — Trespass.
    Where defendant acquired no title to land in a conveyance from the village, it secured no riparian rights to the waters in an adjacent creek, and the building by it of a pumping station thereon was a trespass which the owner of the fee had a right to have restrained.
    5. Same — Trespass—Damages.
    That defendant spent large sums in improving the land on which- it was a trespasser, and in completing its pumping station thereon, largely after the injunction was dissolved and while plaintiffs were perfecting their appeal, cannot move this court to refuse plaintiffs the writ of injunction and award them damages for such interference with their property rights.
    Appeal from Berrien; White (Charles E.), J.
    Submitted April 8, 1920.
    (Docket No. 20.)
    Decided June 7, 1920.
    Bill by William F. Bainton and another against the Clark Equipment Company to enjoin a trespass. From a decree dismissing the bill; plaintiffs appeal.
    Reversed, and decree entered for plaintiffs.

      Gore & Harvey, for plaintiffs.

      Frank M. Sanders, George W. Bridgman and Mc-Inernys, Yeagley & McVicker, for defendant.
   Sharpe, J.

Portage street runs north and south in the village of Buchanan, in Berrien county. Second street, running east and west, terminated at Portage street in 1912. The plaintiffs, who are engaged in the milling business, have owned and operated a water power on McCoy’s creek for many years. They owned much land on the east side of Portage street, including that which would be occupied by Second street if extended, and also the floodage rights over lands to the north and west thereof.

In December, 1911, the village council by resolution appointed a committee to confer with plaintiffs “in regard to opening Second street, from Portage street, east.” On April 12,1912, by resolution of the council, such committee was “empowered to secure the right of way for the continuation of Second street across Bainton Bros.’ property to the Buchanan Electric Steel Company’s plant.” On April 18, 1912, a conveyance (as claimed by defendant), or contract (as claimed by plaintiffs) was entered into by the plaintiffs asjfirst parties and the Village as second party. We quote therefrom:

“Whereas, the parties of the first part are the owners of certain real estate within the corporate limits of the village of Buchanan, and also own the water power from a creek therein, known as McCoy’s creek, and,
“Whereas, the party of the second part desires to open and construct and maintain a street or way over and across certain of said lands not platted into lots, and which constitute a part of the land held by the parties of the first part as fiowage lands, and with which said village does not intend to interfere, which will require a change' in the course of the said McCoy’s creek, and. will also require the constructing of a bridge, over the same in the said street;
“Now, therefore, this indenture witnesseth; that for and in consideration of the sum of three hundred and twenty-five ($825.00) dollars to the parties of the first part in hand paid by .the party of the second part, the receipt whereof is hereby confessed and acknowledged, and also in consideration of the undertakings and covenants of the party of the second part hereinafter contained, the parties of the "first part do hereby grant to the party of the second part the following described property subject to the terms and provisions hereof, and for the uses and purposes aforesaid, to wit:”

This was followed by a description of the land, the same being that required to extend Second street easterly across plaintiffs’ lands, the paragraph concluding, “the same to be used as street or highway and for no other purposes.” Then followed a covenant on the part of the plaintiffs to change the course of McCoy’s creek where it would cross Second street, the village agreeing to erect a suitable bridge to permit the free passage of the waters thereunder and subject to the right of the plaintiffs to increase the height of their dam without incurring liability therefor, “it being understood that the highway shall be so erected as to permit such improvement of said water power.” Plaintiffs were also relieved from at any time being required to construct sidewalks along Second street. This instrument was not recorded until May 26, 1919.

The Celfor Tool Company, in 1912, was operating a plant upon land it owned adjoining the plaintiffs on the east. The village of Buchanan, treating the written instrument above referred to as a conveyance to it of the fee in the lands described therein, on the 20th day of August, 1918, executed a warranty deed of it to the Celfor Tool Company for a stated consideration of one dollar. This deed contained the following provision.

“Said lands are to be taken by second party subject to a contract made and entered into between William F. Bainton and Charles L. Bainton and the village of Buchanan on the 18th day of April, 1912, and said lands conveyed by Baintons under said contract to said village of Buchanan are to be used as a street or highway and for no other purpose.”

This instrument was recorded on May 18, 1914.

On December 26; 1916, the tool company, by unconditional warranty deed, for a stated consideration of one dollar, conveyed the lands in question to the defendant company, which had been operating a plant on adjoining lands. This deed was recorded on December 28, 1916. Soon after the defendant received its deed, it laid out and improved the extension of Second street east over the lands in question. A pavement, not, however, covering the entire width of the street, was constructed in 1916, with a cement sidewalk along the northerly side thereof.

In the spring of 1919, the defendant company began work on this street for the purpose of constructing a pumping station thereon. The purpose was to run the water from McCoy’s creek, which here flows in a northerly direction, into a concrete box 8 feet by 4 feet and 4% feet deep, the bottom of which would’be about 12% feet below the surface of Second street. The top of this box would be less than 2 feet above the bed of the stream. This box was being constructed at the south end of the culvert over McCoy’s creek where it crosses Second street and 30 feet west of the line between plaintiffs’ and defendant’s lands, from which a 20-inch tile would lead to a pumping station to be erected just over the line and in the street fronting on defendant’s property. The defendant claims that it had theretofore been engaged in manufacturing war material for the government and had been requested to provide more suitable fire protection. It had been securing the water for such purpose from the village, and its purpose was only to use the water from the creek through its pumping station in cases of emergency.

On the attention of one of the plaintiffs being called to the work then in progress, he interviewed Mr. Burrows, one of defendant’s vice-presidents, concerning it and protested against defendant so occupying the public street. A later conference was had, at which both of the plaintiffs were present, when Mr. Burrows explained the plan of their work fully to them, including the location and size of the pumping station. On defendant’s refusing to discontinue the work, plaintiffs filed the bill of complaint herein, praying that defendant “be permanently enjoined from further connecting their factory through Second street by means of water mains, or otherwise, with the waters in McCoy’s creek, and be enjoined from diverting the waters in said creek to the premises of said defendí ant,” and also that defendant be required to remove the building material placed on the street, and commanded to fill the excavation made by it “so as not to interfere with the use and enjoyment by plaintiffs of their said property.”

■ The defendant, answering, set up the conveyance above referred to, alleging that Second street as extended is a private driveway, owned exclusively by it as a' way of ingress to and egress from its plant, the entire expense of constructing which has been paid by it; that the lands now claimed to be a street were never dedicated to or acquired by the public as such; that its contemplated use of the water of McCoy’s creek is for fire purposes in case of emergency only, and such use will not in any way interfere with that now made by plaintiffs of such waters.

The proofs were taken in open court. After a full hearing, the trial judge made a decree dismissing plaintiffs’ bill. We are not informed by any finding as to his reason for so doing. There is, however, so little conflict in the testimony that his opinion as to the weight to be given to that offered by the respective parties would aid us but little.

What rights passed to the village under the deed from plaintiffs of April 18, 1912 ? The plaintiffs claim that but an easement was conveyed and that “The village of Buchanan holds this easement in trust for the public. They hold it for no other purpose.” The defendant claims that:

“The instrument termed ‘contract’ by appellant, constitutes a deed of conveyance, conveying the fee, and appellee is vested with the fee of the soil.
' “The realty is being used for street purposes and there has been no violation of any of the covenants, warranties or conditions of the conveyance.”

While the word “grant” under our statute is sufficient to pass a title in fee, its use in a conveyance may be restricted by the other language employed. As was said by Mr. Justice Brooke in Putnam v. Railroad Co., 174 Mich. 246:

“In the construction of deeds or other contracts, the primary end to be attained is, if possible, to ascertain clearly the intention of the parties.”

In that case, the authorities are collected and reviewed, and need not be here cited or referred to.

Applying this rule of construction, we find no difficulty in determining the effect to be given to this instrument. The intent of the parties thereto is apparent from its terms. Even if doubt existed, it should be quickly dispelled when reading the proceedings of the village council which led up to its execution. The village wanted this land for a street, and the plaintiffs conveyed it to be used for that purpose and for that alone. In.effect, the instrument reads:

“The parties of the first part do hereby grant to the party of the second part the following described property for the use and purpose of opening, constructing and maintaining a street thereon.”

The interest acquired by the village was an easement for the benefit of the public, and not a title in fee. It obtained no such title as could be transferred by it, and none passed by its conveyance to the tool company. 2 Tiffany, Real Property (2d Ed.), § 486. The language of Chief Justice Shaw in Harback v. City of Boston, 10 Cush. (Mass.) 295, quoted approvingly in Munro v. Meech, 94 Mich. 596, is pertinent:

“The general rule is that the right of the public or of individuals to the use of the land of others, for a precise and definite purpose, not inconsistent with a general right of property in the owner of the soil, is, in contemplation of law, an easement or franchise, and not a right of property in the soil, even though it deprive the owner for the time being of all useful or beneficial interest in the land.”

We have, then, this strip of land owned by the plaintiffs, on which the village, by an easement acquired by it, has the right to construct and maintain a public street. To such a use it has not been subjected. The defendant has no rights therein. Having no title to the land, it secured no riparian rights to the waters in McCoy’s creek. The work begun by it when the bill was filed was a trespass and one which the plaintiffs as the owners of the servient estate had a right to object to and, if persisted in, have restrained by injunction. Ryan v. Brown, 18 Mich. 196; Stone v. Lumber Co., 59 Mich. 24; Clay v. City of Grand Rapids, 60 Mich. 451; Vanderlip v. City of Grand Rapids, 73 Mich. 522.

The defendant has expended large sums in improving this land as a private way and in completing its pumping, station. The latter expenditure was largely made after the injunction was dissolved and while plaintiffs were perfecting their appeal to this court. While regrettable, this cannot move us to refuse plaintiffs the relief asked for and attempt to award them damages for such interference with their property rights. Ives v. Edison, 124 Mich. 402 (50 L. R. A. 134); Tolsma v. Scripps Corporation, 153 Mich. 14; 22 Cyc. p. 765. The work done on the street can probably be saved by appropriate action of the village council. The cement box can be filled up without its removal, and the tile laid would seem to be no interference with the use of the land for any purpose if it be disconnected with the pumping station erected by defendants.

A decree may be prepared in conformity with this opinion, with costs to plaintiffs.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Bird, JJ., concurred.


source: Caselaw Access Project

author: Sharpe, J.

license: Public Domain

text:
    McNATT v. PATRONS’ MUTUAL FIRE INSURANCE CO.
    Insurance — Fire Insurance — Mutual Company — Assignments— Liable to Members Only.
    The assignee of an insurance policy in a mutual company which agreed to pay loss only “during the term which the assured shall remain and be a member of said corporation,” could not recover for buildings burned before payment of the required membership fee, which was a condition precedent to membership under the by-laws.
    Error to Newaygo; Barton (Joseph), J.
    Submitted April 20, 1920.
    (Docket No. 101.)
    Decided June 7, 1920.
    Assumpsit by Elena M. McNatt against the Patrons’’ Mutual Fire Insurance Company on a policy of insurance. Judgment for defendant non obstante veredicto. Plaintiff brings error.
    Affirmed.

      Alex. Sutherland, for appellant.

      Harry D. Reber and William J. Branstrom, for appellee.
   Sharpe, J.

A policy of insurance was issued by the defendant company to Charles H. McCullough on September 18, 1917. A few days later, McCullough sold the land upon which the buildings insured were situated to the plaintiff, who resides in Chicago. The Colonial Title & Guaranty Company had a mortgage on the land. On September 22d, McCullough sent the following notice to Mr. Riblet, the local agent of the' guaranty company:

“September 22d, 1917.
“Fred W. Riblet:
“I hereby assign all my interest in and to the insurance policy on the buildings and furniture, household goods contained in them, which is situated on the southwest of the southwest of section twelve, township sixteen north, range thirteen west, in Newaygo county, Michigan, to Elena . M. McNatt, Chicago, Illinois, who is the holder of said' policy. Please have assigned as above stated and oblige,
“Charles H. McCullough.”

Riblet, who had possession of the insurance policy, sent it to the defendant’s secretary, Mr. White, on September 26th, asking that it.be transferred to plaintiff. On receipt of this letter, Mr. White wrote plaintiff:

“Fremont, Michigan, Sépt. 27th, 1917. “Mrs. Elena M. McNatt,
“1838 Union Avenue,
“Chicago, 111.
“Dear Madam:
“Mr. Fred W. Riblet, of Muskegon, has sent me policy number 29620, issued to Charles H. McCullough, for assignment to you. Before the assignment can be completed, your membership fee of $2 must ,be forwarded to me as provided by the by-laws of the company. Please remit the same at once and I will complete the assignment to you and return the policy to Riblet.
“Yours truly,
“Milo A. White, Secretary.”

Mrs. McNatt was out of the city when this letter arrived, but immediately on her return she wrote Mr. White as follows:

“10-4-17, Chicago.
“Milo A. White,
“Dear Sir:
“Enclosed please find postoffice order for $2, as requested by your letter which I find on my return.
“Very respectfully,
“E. M. McNatt.”

In. the meantime, ’and on October 2d, the buildings insured were destroyed by fire. E. C. Minnick was living on the farm when the fire occurred. He saw defendant’s secretary on October 4th and notified him thereof. He also went to Chicago on the 5th and notified the plaintiff, who in writing also notified the defendant. Defendant’s secretary in reply returned the $2 money order she had sent him and advised her that as the loss occurred before the transfer was completed there was no liability on the part of the company. The plaintiff brought suit. After the proofs were submitted, defendant’s counsel moved for a directed verdict for the reason that the assignment made by McCullough to plaintiff could not transfer any right of action thereunder to her until she had become a member of the defendant company and this she could not do until the membership fee was paid by her. The trial judge reserved decision on this motion under the Empson act (Act No. 217, Public Acts of 1915, 3 Comp. Laws 1915, § 14568 et seq.) and submitted the case to the jury, who returned a verdict for plaintiff in the sum of $323.25. Defendant then moved for judgment non obstante veredicto, which was granted. Plaintiff appeals.

While there are numerous assignments of error, the meritorious question presented is: Was the policy transferred in such a way as to entitle plaintiff to bring suit thereon? The policy reads, in part, as follows:

“In consideration of the premium and fee received * * * The Patrons’ Mutual Fire Insurance Company of Newaygo, Muskegon and Oceana counties, subject to the tenor, terms and conditions of its char- . ter and by-laws * * * does hereby insure Charles H. McCullough * * * so long as membership is retained in this company, against all direct loss or damage by fire or lightning to an amount not exceeding one thousand six hundred and fifty dollars.”

In a subsequent paragraph, the defendant company agrees to pay such loss “during the term which the said assured shall remain and be a member of said corporation.”

The defendant is a mutual company and, as said in Kamm, & Schellinger Brewing Co. v. Insurance Co., 168 Mich. 606:

“Its original design was to provide cheap insurance by means of local associations, the members of which should insure each other. -Such associations are in their nature adapted only to local business. * * * And it is necessary and equitable that each person who gets insured in them should become subject to the same obligations towards his associates that he requires from them towards himself.”

Section 10 of the by-laws provides, in part:

“Any person may become a member of this company whose risk is in either of the said counties * * * by subscribing to such application therefor as the company may provide and use in making insurance, and paying to the secretary a membership fee of two dollars.”

Section 13, which provides for assignments, reads:

“The three-tenths of one per cent, paid as premium for insurance shall be available by assignment to cover any property insurable by this company, but thé assignee must pay the membership fee of two dollars, unless already a member of the company, in which case such assignee shall pay an office fee of fifty cents only.”

Under the terms of the by-laws,'the plaintiff could not become a member of the defendant company until the membership fee was paid, nor could she carry insurance without being a member. These provisions are not unusual in mutual companies, and their enforcement is in the interest of the individual members as well as the corporation.

A question quite similar was presented to this court in Kamm & Schellinger Brewing Co. v. Insurance Co., supra, and an exhaustive opinion written by Mr. Justice Stone, in which the authorities are reviewed and the rights and liabilities of members in such companies as the defendant discussed. It will serve no useful purpose to restate here what was there said. We, however, quote the following:

“Certainly the insurance ceased as to Mrs. Withers when she conveyed. Simply assigning the policy did not revive it. A further thing was necessary to be done, namely, to present the policy thus assigned to the secretary, make application to become a member of the company, and get the consent of the secretary indorsed thereon.” /

The conclusion therein reached that the lack of assent by the secretary of the insurance company to the assignment prevented a recovery is controlling of the rights of the plaintiff herein.

The judgment is affirmed.

Mooee, C. J., and Steeee, Brooke, Fellows, Stone, Clark, and Bird, JJ., concurred.


text:
      In re KLINK’S ESTATE. OLLENBROOK v. BERTLING.
    1. Wills — Undue Influence — Evidence—Inferences.
    While undue influence may be established by indirect and circumstantial evidence, it must be of such a nature that the inference may fairly be. drawn therefrom that suck influence was in fact exercised.
    Ante-testamentary declarations as evidence of undue influence, see note in 3 H. R. A. (N. S.) 749.

      2. Same.
    Trouble between contestant and her mother over a house and a piano, which induced the mother to leave the bulk of her property to her other children, would not constitute undue influence; neither would unkind words said about contestant to the mother by her other daughters, since the influence exerted, to be deemed “undue,” must be such as amounts to moral or physical coercion, so that testatrix was prevented from exercising her own judgment and free will, and her act became, in effect, that of another.
    .3. Appeal and Error — Weight of Evidence — New Trial — Duty of Appellate Court.
    When it is apparent from the record that, notwithstanding every reasonable presumption in support of the decision of the trial judge, he erred in refusing to set aside the verdict on the ground that it was against the weight of the testimony, the duty of this court to overrule that decision is manifest.
    4. Wills — Evidence—Weight of Evidence.
    Verdict in a will contest case in favor of contestant on the ground of undue influence, "held, clearly against' the weight of the evidence.
    5. Same — Witnesses—Cross-examination.

      Held, that there was no abuse of discretion in allowing much latitude in the cross-examination of proponents, who were beneficiaries under the will.
    6. Costs — Allowance for Record and Brief — Failure to Summarize.
    Although proponents are entitled to costs, where very little of the testimony was summarized, and the greater part of the brief was made up of quotations of testimony from the record, the allowance for printing the record will be limited to 250 pages, and that for the brief to 100 pages.
    7. Appeal and Error. — Criticism of Judge in Brief Cause for Striking.
    Uncalled for criticism of the trial judge in the brief of counsel must be met with condemnation, being sufficient cause to strike the same from the files.
    8. Judges — Integrity—Presumptions.
    While judicial officers are human and make mistakes, the presumption of their integrity must be accepted by all counsel.

      Error to Wayne; Tappan (Harvey J.), J., presiding.
    Submitted April 23, 1920.
    (Docket No. 44.)
    Decided June 7, 1920.
    Orrin S. Breen and William Bohrer, executors, presented the last will of Anna Klink, deceased. The will was allowed in the probate court, and Louisa Ollenbrook appealed to the circuit court. Judgment for contestant. Proponents bring error.
    Reversed

      James H. Pound, for appellants.

      Joseph A. Moynihan, for. appellee.
   Sharpe, J.

Anna Klink died in Detroit on May 12, 1916. The proponents presented for probate a writing, dated July 31,1914, purporting to be her last will and testament. It was allowed and an appeal taken to the circuit court for Wayne county. The contestant claimed that the deceased was mentally incompetent to make a will and that undue influence was exercised by the proponents to secure its execution. The trial judge held as a matter of law that there was no sufficient proof of mental incompetency, and so instructed the jury. He submitted the question of undue influence, and they found against the will. A motion for a new trial was made and denied. One of the reasons assigned therefor was that the verdict was against the great weight of the evidence.

The record is voluminous, consisting of more than* 400 printed pages. We have read it with care. The neglect of counsel to discuss the assignments relied on separately and to point out the pages in the printed record to which allusion is particularly made has greatly increased the task of giving consideration to the 73 errors assigned. These cannot all be reviewed in an opinion of reasonable length. We can but state the conclusions reached.

The testatrix was a widow 67 years of age. She had been married four times. At the time of her death, she had five living children. In the will she made several specific bequests to grandchildren. She therein stated that she had made full advancement to her daughter, Emma Footitt, of her share of her estate. She bequeathed to her daughter, Louisa Ollenbrook, the contestant, $5. The residue of the estate was bequeathed to her three children, Mary Bertling, Alice Breen and William Bohrer, share and share alike.

It appears that her relations with the contestant had been strained for many years. The latter spent several months in the House of the Good Shepherd when a girl of 14. She and her sisters did not get on well together. It is her claim that in the later years of her mother’s life their relations had been friendly until a dispute arose over the repairing of a house of her mother’s she was then occupying. The date of this is not fixed in the record. There was afterwards trouble over a piano which she claimed her mother had given her and which the latter sought to reclaim. A replevin suit followed, resulting in favor of' the contestant.

The will in question was drawn by Henry C. L. Forler, an attorney of Detroit. While both Mrs. Breen and Mrs. Bertling were present, both deny that they talked with their mother about it. Contestant soon after learned that a will had been made and of its contents. She was asked:

“Q. Didn’t you go out and say, mother, how does it come you only gave me $5.00?
“A. I would not dare; she would telephone the rest of them to come down.”

On August 2, 1914, deceased caused to be published in the Detroit Tribune the following notice:

“From now on I disown Louisa Ollenbrook as a daughter and to have no claims whatsoever hereafter.
“Anna Klink.”

Undue influence. In the recent case of Phelps v. Beard, 209 Mich. 266, at page 274, this court said:

“While undue influence may be established by indirect and circumstantial evidence, it must be of such a nature that the inference may fairly be drawn therefrom that such influence was in fact exercised.”

We also therein called attention to the opinion in Be Williams’ Estate, 185 Mich. 97, where the authorities are collected and exhaustively discussed.

That the making of the will was induced by the troubles over the house and piano may, perhaps, be inferred. The testatrix may have been so angered at what she believed to be the unjust conduct of her daughter that she therefore concluded not to leave her any considerable amount of property. But such fact, if conceded, does not in itself constitute undue influence. Neither would unkind words said about contestant to the deceased by her other daughters. The influence exerted, to be deemed “undue,” must be such as amounts to moral or physical coercion, so that the testatrix was prevented from exercising-her own judgment and free will, and her act became, in effect, that of another. These controlling principles were stated to the jury in the instructions of the court. When applied to the testimony tending to support the claim of contestant, there is little, indeed, from which any fair inference of undue influence can be drawn.

We are always loath to disturb the verdict of a jury when any competent evidence has been submitted on which it can be founded.. But the right of the proponents to have this question reviewed was reserved to them by their motion for a new trial, and we cannot evade the necessity for its determination.

The rules by which this court should be governed in considering this question are well stated in Hintz v. Railroad Co., 132 Mich. 305. It is therein said:

“We are also bound to bring to the support of the decision of the trial judge all reasonable presumptions which arise from his superior opportunity to determine the credibility of witnesses. When, however, in accordance with these principles, it is apparent from the record, notwithstanding every reasonable presumption in support of his decision, that the trial judge erred in refusing to set aside the verdict on the ground that it is against the weight of the testimony, the duty of this court to overrule that decision is manifest. Whipple v. Railroad Co., 130 Mich. 460; Baldwin v. Railway Co., 128 Mich. 417; Cole v. Railway, 132 Mich. 122.”

See, also, Krouse v. Railway, 166 Mich. 147.

The testimony bearing on this charge cannot well be reviewed. There is no direct evidence tending to support it. It is founded on statements and acts of the testatrix and the beneficiaries under the will from which such influence is sought to be inferred. These, in our opinion, have little probative, force. Besides, we find so much in the record tending to show that testatrix fully understood what she was* doing and felt justified, in consequence of the conduct of contestant, in making her will as she did, that we feel constrained to hold the verdict was so clearly against the weight of the evidence that a new trial should have been granted.

Many pages in the brief of counsel for proponents are devoted to the exclusion of an unsigned letter claimed to have been sent by contestant to the deceased. We do not find that this letter was offered after proof had been submitted which rendered it competent.

Much latitude was allowed contestant’s counsel on the cross-examination of the proponents, who were beneficiaries under the will. We find no abuse of discretion in this respect on the part of the trial court. The proofs tending to support a charge of undue influence usually consist of facts and circumstances from which it may be inferred.

The other errors assigned have been considered. They are not likely to arise on a new trial.

Proponents are entitled to costs. We feel, however, that the allowance for printing the record should be limited to 250 pages and that’ for printing the brief to 100 pages. Very little of the testimony is summarized and the greater part of the brief is made up of quotations of testimony from the record.

In the brief filed by counsel for the proponents, language is employed to which we must refer. Criticism of the trial judge, entirely uncalled for, is indulged in. Had our attention been called to such statements before the hearing, the brief would doubtless have been stricken from the files. The long experience of counsel as a practitioner should cause him to appreciate that such a course cannot be tolerated. While judicial officers are human and make mistakes, the presumption of their integrity must be accepted by all counsel. The Constitution and laws provide a method by which an attack may be made upon them, which they may have an opportunity to meet. Any other course pursued, tending to belittle them and detract from the dignity attached to the office, must be met with condemnation.

The verdict and judgment will be set aside, and a new trial granted.

Moore, C. J., and Steeee, Brooke, Fellows, Stone, Clark, and Bird. JJ., concurred.


text:
    PEOPLE v. LUCE.
    1. Criminal Law — Taking Indecent Liberties — Evidence—Testimony oe Mother as to Complaint oe Child.
    In a prosecution for taking indecent liberties with the person of a female child eleven years old, testimony of the mother that the child made prompt complaint to her was properly admitted.
    2. Same — Cross-examination—Testimony as to Irrelevant Matters for Purpose of Testing Credibility.
    It is permissible in this class of cases to interrogate a witness on cross-examination as to matters wholly irrelevant to the issue for the purpose of testing his memory or sincerity or showing his bias, prejudice, or interest, but not for the purpose of eliciting answers which may be contradicted and thus discrediting him.
    3. Same — Testimony as to Other Offenses.
    Where defendant denied committing the offense with complaining witness “or anybody else,” it was permissible to cross-examine him thereon, but on his denial of the commission of a like offense with a certain other child it: was error to permit the other child to testify to its commission, although the jury were instructed to consider: it only as bearing on his credibility.
    4. Same — Trial—Good Character — Instructions.
    Where defendant has given evidence of good character, he is entitled to appropriate instructions on request, although a neglect to give such instruction, in the absence of a' proper request therefor, is not erroneous.
    Exceptions before judgment from Calhoun; North (Walter H.), J.
    Submitted April 16, 1920.
    (Docket No. 118.)
    Decided June 7, 1920.
    C. H. Luce was convicted of taking indecent liberties with the person of a female child.
    Reversed.

      Clyde CortrigM, for appellant.

      Adrian F. Cooper, Prosecuting Attorney, and James Cleary, Assistant Prosecuting Attorney, for the people.
   Sharpe, J.

The defendant was convicted of taking indecent liberties with the person of Beulah Walker, a female child 11 years old, on July 12, 1919. It was her claim that when she went to his shoe repairing shop he took her on his lap, placed his hand under her outer clothing and fondled her private parts, and that she at once went home and told her mother about it. The mother was permitted to testify, against objection, that such complaint was made.

The defendant, in answer to a question ás to whether the little girl’s story was true, answered:

“It has absolutely no truth in it; absolutely. Never done any such thing to no person; not to her nor anybody else.”

On cross-examination, the prosecution inquired as to whether he had not done the same thing to a little girl named Collard on or about May 17th. This he denied. In rebuttal, the prosecution called Frances Collard, who was permitted to testify that defendant took indecent liberties with her-in his shop. This was admitted as bearing on his credibility, and in the charge the trial judge warned the jury to so consider it. Four character witnesses were sworn for defendant, but their testimony is not set out in the record.

The testimony of the mother that the child made complaint to her was properly admitted. People v. Harrington, 186 Mich. 482.

Was the testimony of Frances Collard admissible ,for the purpose for which it was received? It is permissible in this class of cases to interrogate a witness on cross-examination as to matters wholly irrelevant to the issue in the case for the purpose of testing his memory or sincerity or showing his bias, prejudice or interest, but not for the purpose of eliciting answers which may be contradicted and thus discrediting him. This rule the, trial judge evidently had in mind. The defendant, when examined by his own counsel, voluntarily injected into his answer the statement that he had “never done any such thing to no person; not to her nor anybody else.” This part of his answer was not responsive to the question put to him. It opened the' door to the cross-examination which followed, but we do not think it permitted the calling of other witnesses to contradict the statement thus volunteered. The danger of admitting such testimony is twofold. First, the defendant is usually unprepared to produce testimony supporting his statement, and, second, an issue alien to that to be decided is presented to the jury. While they were carefully instructed that they should only consider this testimony as affecting the credibility of the defendant, yet, to determine its effect, they must find the fact as to whether he or Frances was telling the truth about it. If the course pursued was justified, cases may arise in which several such collateral issues would be presented. If a defendant charged with larceny should make a similar general denial, the prpsecution would be permitted to present to the jury, not by one but by many witnesses, proofs, tending to show that he had on other occasions committed larceny, and thus a multiplicity of issues would be presented for the jury to pass upon. We think the safer rule to follow is to restrict the contradiction of such matters as may be so elicited to the cross-examination of the defendant himself.

Counsel for the prosecution rely on People v. Kenyon, 201 Mich. 647, to justify the admission of this testimony. We think it easily distinguishable. In that case the defendant was charged with practicing medicine without a license, in violation of section 6730, 2 Comp. Laws 1915. He was examined by his counsel as follows:

“Q. Have you ever held yourself out as being a physician?
“A. No, sir.
“Q. As a surgeon?
“A. No, sir; never in the world.”

The prosecution was permitted to show that he had written letters signed “Dr. Levi Kenyon,” the envelopes of which bore the return card “Dr. Levi Kenyon, Bellevue, Mich.” This was held not to be reversible error. Section 6732 provides that the use of the word “doctor” or its abbreviation as a prefix to the name of any person shall be prima facie evidence of practicing medicine within the meaning of the act. The matter inquired into was not therefore collateral to the charge on which the defendant was being tried.

In Bullock v. State, 65 N. J. Law, 557 (47 Atl. 62, 86 Am. St. Rep. 668), a similar question was presented. The defendant was being tried for murder and on examination by his counsel said he had “never had any trouble with any one.” On cross-examination, the, prosecutor asked him whether he did not have a dispute with one Campbell and draw a razor on him in the stall and attack him with a pitchfork. This he denied, and in rebuttal Campbell was permitted to so testify. This was held to be prejudicial error, and on it alone a reversal was had and a new trial granted. See, also, People v. Ascher, 126 Mich. 637, 643; People v. Williams, 159 Mich. 518.

In this class of cases the only testimony usually produced is that of the complaining witness and the defendant. Facts tending to show the commission of a similar offense on another child, on some other occasion, though restricted by the court to its bearing • on his credibility, cannot but prejudice the jury and unconsciously lead them to the conclusion that he is in the habit of taking such liberties with little girls, The probability is strong that he would thus lose the benefit of the reasonable doubt to which he is entitled.

The trial judge omitted to instruct the jury as to the weight to be given to the proof of good reputation offered by defendant. No request therefor was given. We think the rule stated in 16 C. J. p. 980 is a safe one to follow:

“Where defendant has given evidence of good character, he is entitled to appropriate instructions on request, although a neglect to give such an instruction in the absence of a proper request therefor is not erroneous.”

For the reasons stated, the verdict will be set aside and a new trial granted.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Bird, JJ., concurred.


text:
    SULLIVAN v. FIDELITY & CASUALTY CO. OF NEW YORK.
    Principal and Surety — Bonds—Joining Separate Claims — Lump Judgment on Two Bonds — New Trial Denied.
    Where, with defendant surety company’s consent, two cases against it on two separate bonds were combined and a judgment for a lump sum resulted (208 Mich. 68), the Supreme Court will not grant a new trial for the reason that it could not be determined how much of the penalty of each of the bonds involved would be paid and satisfied by reason of said judgment, where it does not appear that such determination, could be made on new trial, and plaintiff has filed an acknowledgment of satisfaction on each of the bonds to the full amount of the judgment recovered, which, although irregular, will be allowed to stand for defendant’s protection.
    Error to Shiawassee; Collins (Joseph H.), J.
    Submitted October 30, 1919.
    (Docket No. 59.)
    Decided December 22, 1919.
    Resubmitted April 10, 1920.
    Former opinion affirmed June 7, 1920.
    Assumpsit by James Sullivan against the Fidelity & Casualty Company of New York, surety, and Arthur L. Waldorf, principal, on a bond. Judgment for plaintiff. Defendant surety brings error.
    Affirmed.

      Cummins & Nichols, for appellant.

      Pulver & Bush, for appellee.
    (For former opinion see 208 Mich. 68.)
   On Rehearing.

Sharpe, J.

Counsel for the defendant urge that this court was in error in affirming the judgment of the trial court—

“Because the court in reaching the conclusion stated in its opinion overlooked the fact that by reason of the evidence of plaintiff’s claim being evidence of a lump sum of damages, no basis * was furnished by which it could be determined how much of the penalty of each of the bonds involved in said cause would be paid and satisfied by reason of said judgment.”

Counsel for the plaintiff contend that it will not be possible for defendant to secure such a determination on a new trial. By consent of defendant’s counsel, the two causes of action were combined. We quote from the record:

“Mr. Bush: I understand you have no objection to the joinder of these two contracts together in the suit. I can put in my proof quicker.
“Mr. Cummins: No, I would just as soon have it all fought out in one suit as in two.”

The liability on both bonds being thus tried in one suit, we know of no way under our statutes and rules of practice by which a judicial determination can be obtained of the amount which may be recovered under each so that the penalty thereof may be deemed satisfied to such amount. If on a new trial the plaintiff were required to prove the liability of the defendant in two items, the one showing the work done by Saeman on the Sullivan job, and the other that done on the Doan job, it is apparent that as Saeman kept no separate account of such work the proofs would consist largely of estimates founded on measurements. Unless the jury were specifically instructed to find the value of the work done on each i job, the individual members might differ about it and yet agree on the total to be allowed.

While, under section 39 of chapter 18 of the judicature act (Act No. 314, Public Acts 1915, 3 Comp. Laws 1915, § 12611), the jury when rendering a general verdict may be required to answer special questions, such questions must be so framed as to be “readily answered by yes or no.” It therefore seems apparent to us that should a new trial be granted for the reason assigned, defendant could not thereby obtain the determination sought by it.

Counsel for the plaintiff on the argument made offer to indorse upon each of the bonds an acknowledgment of satisfaction to the full amount of the judgment recovered. They have since filed in this court such an acknowledgment. While the proceeding is irregular, such acknowledgment may stand for the protection of the defendant in case other liability on either or both of said bonds should be claimed by either Sullivan or Doan.

The question of overpayment is again urged by counsel for defendant in the motion and brief filed. We have re-examined the proofs bearing on this question and remain of the opinion that a question of fact was presented for the consideration of the jury.

The judgment is affirmed, with costs to plaintiff.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Bird^ JJ.,-concurred. .


text:
      In re ROSA'S ESTATE. NEWNHAM v. NEWELL.
    1. Wills — Mental Competency — Evidence—Question por Jury.
    In a will contest case, evidence of the mental incompetency of testatrix held, sufficient to justify its submission to the jury.
    2. Same — Insane Delusions — Evidence.
    The belief of testatrix that contestant, her niece, was an immoral woman and unworthy of her continued regard, if founded on repeated false statements and insinuations made to her by proponent, so that her mind became obsessed with their truth, although her lifelong acquaintance and personal relations with contestant should have led her to reject them, was nevertheless a delusion.
    3. Same — Language op Will Admissible Where Contrary to Pacts.
    ' As hearing on the question whether testatrix was acting under a delusion, the jury had the right to consider the language in the residuary clause of the will that proponent “has done more to help me and make my life happy than any other person”; there being nothing in the record to support such belief.
    On what constitutes capacity or incapacity to make a will generally, see notes in 27 L. R. A (N. S.) 2; L. R. A. 1915A, 444.

      4. Same — When Delusion Exists,
    An insane delusion exists when a man or woman persistently believes supposed facts which have no real existence, and so believes such supposed facts against all evidence and probabilities, and without any foundation or reason for the belief, and conducts himself or herself as though such facts actually existed. \
    5. Same — Insane Delusions — Effect on Will.
    Unless such insane delusion influenced testatrix in the disposition of her property to the prejudice of contestants, they could not prevail.
    6. Same — Undue Influence — Question fob Jury.
    The testimony as to undue influence, held, to present a question for the jury.
    7. Same — Testimony as to Testatrix’s Life — Discretion of Court — Abuse.
    Where, subsequent to an illness, there was a marked change in the life of testatrix, which contestants claimed was due to weakness of mind and body, the trial judge did not abuse his discretion in admitting testimony as to her life before and after said illness.
    5. Evidence — Hypothetical Question Need Not Include All the Testimony.
    A hypothetical question need not include all of the facts concerning which testimony has been given, but the opinion of the witness may he taken on any combination of facts which counsel may believe the jury will find to be established by the proofs, using only such testimony as he feels satisfied will be accepted by the jury as true.
    Error to Kalamazoo; Chester (Guy M.), J., presiding.
    Submitted April 13, 1920.
    (Docket No. 48.)
    Decided June 7, 1920.
    Rehearing denied July 20, 1920.
    Richard L. Newnham, executor, and another presented for probate the last will of Susan Rosa, deceased. The hearing was certified'under the statute to the circuit court. Elizabeth Newell and another, sole heirs at law, contested the allowance of the will. Judgment for contestants. Proponents bring error.
    Affirmed.

      Lincoln H. Titus {Harry C. Howard, of counsel), for appellants.

      Weston & Fox and Jackson & Fitzgerald, for appellees.
   Sharpe, J.

Susan Rosa, a widow 84 years of age,

and long a resident of Kalamazoo, executed a will on April 10, 1917. She died July 23, 1918. The proponent Newnham presented the will for probate, objections having been filed thereto by the contestants. The hearing was certified to the circuit court under the provisions of section 1, chapter 65, of the judicature act (Act No. 314, Public Acts 1915, 3 Comp. Laws 1915, § 14145). The will was executed in conformity with the statutory requirements. It had been prepared at her home by Mr. Newnham.

It was contended by contestants:

(1) That at the time of its execution the testatrix lacked the mental capacity to make a will.

(2) That she at that time labored under an insane delusion as to one of the contestants.

(3) That she was unduly influenced to execute the same.

These several questions were submitted to the jury, who found against the will. From a judgment thereon, which included an order certifying the same to the probate court, the proponents appeal.

There are a few pertinent facts about which there is no disagreement which may well be stated at the outset. The testatrix and her husband, Ira Rosa, were married in 1855, and lived happily together until his death in 1905. They had no children. He left a will by which his widow became the owner of about $16,-000 worth of property,' a part of which consisted of 5 houses and lots in Kalamazoo. The contestants are .the niece and nephew and sole heirs at law of 'the deceased. After the death of Mr. Rosa Elizabeth New-ell, then the wife of George B. Newell, who also resided in Kalamazoo, at the request of the deceased, assisted her in looking after her property, collected the rents, deposited the moneys, and in a general way had charge of her affairs. This continued until about the month of June, 1914. The testatrix had quite a severe attack of illness in 1905 and 1906, and again in 1913. She was uneducated, being unable to read or write except to write her own name. In 1913, the relations of the Newells became strained, resulting in a separation. • A few months thereafter; Mr. Newell entered the home of the deceased and continued to • live there until her death. Soon thereafter, she withdrew from Mrs. Newell the charge of her property interests and transferred it to him. He was at that time, had been before, and continued to be, considerably addicted to the excessive use of intoxicants.

Mrs. Newell began divorce proceedings against her husband in 1914. These were apparently abandoned, and he filed a bill therefor against her in 1916. In it the proponent Newnham acted as his attorney. This she defended and asked relief in a cross-bill, which was granted, unopposed. Their property matters were settled by private agreement.

On February 15, 1916, the deceased made a will in which the bulk of her- estate was bequeathed to George B. Newell. This was drawn by Mr. Newnham, and in it he was named as executor. The contestants were each left $500. On March 15, 1917, the contestants filed a petition in the probate court, asking for the appointment of a guardian of the person and estate of Mrs. Rosa. In it she was alleged to be mentally incompetent to have the care and management of her property, which was therein specifically described. The hearing on this petition was continued until April 10th, when it was abandoned by petitioners. Mr. Newnham was retained by George B. Newell to act for the deceased in this proceeding. Afterwards, and on the same day, the will in question was prepared by Newnham at the home of Mrs. Rosa. In it but $10 was bequeathed to Mrs. Newell and a like amount to Mr. Sanford, and, after some other small bequests, the homestead and residue were left to Newell. Newnham was again named as executor. Soon after, Mrs. Rosa, by Mr. Newnham and Mr. Titus as. her attorneys, began suit in the circuit court against Mrs. Newell for libel. This was tried in October, 1917, and resulted in a verdict for defendant. In this suit, Mrs. Rosa was examined and cross-examined at length, and it is claimed that her mental capacity to make a will is therein clearly evidenced.

On November 10, 1917, the testatrix deeded to Mr. Newell, by two separate conveyances, a considerable part of her real estate, reserving to herself a life estate in one of the parcels so conveyed. On the same day, a contract was executed by her and George B. Newell, wherein, after reciting that he had been “caring for and assisting her” and that she was desirous that he should continue to do só, he agreed “to care for and provide for and properly maintain” her for the remainder of her life, and in consideration thereof she should convey the lands described in said deeds to him. It was further agreed that the deeds and the agreement should be placed in the hands of Frank Newell, a brother of George, to be delivered on her decease, and that such delivery should transfer the title to George B. Newell, subject to the conditions contained in the agreement. These instruments were prepared by Mr. Newnham in his office but acknowledged before him and Frank Newell at her home in Kalamazoo. He claims to have received instructions to prepare them some time before when at her home. These deeds were placed on record on July 30, Í918, as Frank Newell says, at her request. The contract or agreement was left with Frank Newell, no copy thereof having been given to her. Besides these facts which are, we think, undisputed, a large number of witnesses were called by both sides, who testified to circumstances bearing on the issues presented. Some of these will be further alluded to.

Mental Capacity. Under section 12546, 3 Comp. Laws 1915, the burden of proving mental incapacity is on the contestants. In re Curtis’ Estate, 197 Mich. 473. We start out, therefore, with the presumption that the testatrix had sufficient mental capacity to make her will and that it expresses her intention as to the disposition she desired made of her property. Was such presumption sufficiently overcome by the proofs to justify the trial judge in submitting the question to the jury? To aid us in so determining, we may look at the terms of the will and the bequests made therein. While a testator may dispose of his property as he pleases, a consideration of the disposition so made is frequently an aid to the court and jury. The contestants were her sole heirs at law. They are each bequeathed but $10 out of an estate worth $16,000 to $18,000. The residuary clause reads:

“I give, devise and bequeath to George B. Newell all the residue of my estate of every kind and nature as he, the said George B. Newell, has been kind and attentive to me and has done more to help me and make my life happy than any other person.”

The person named as executor was an attorney, living in Grand Rapids, whom the testatrix had met but a few times before the will was made. The will is brief and its terms easily understood by any person of ordinary mind and understanding.

The facts revealed by the proofs offered by contestants are most unusual. We have here a woman about 80 years of age so attracted to a man of 52 that she believes what he tells her about a niece, before that time a favorite of hers, and submits to him the care and management of her property. While theretofore' bitterly opposed to the excessive use of intoxicants, she suffers him to become drunk in her home. Her manner of life becomes changed. From a tidy, modest, self-assertive woman, she becomes careless, if not unclean, in her person and dress, permits this man to appear before her nude and submits to the use of abusive language by him to her as though he were her lord and master. She permits him to kiss and fondle her while intoxicated, and tells one of her neighbors, who had formerly, been in her employ, that if “she said anything to him he would get all the worse.” She explains her neglect to call on a neighbor by saying she “would not dare to come when he was there.” She told this same woman (Mrs. Board-man) in 1917 that “they had her sign some papers but she didn’t know what they were. She said they had papers and she signed them and they had fixed things but she didn’t know what was in it.” The two wills were drawn by Mr. Newnham, an attorney of Grand Rapids, the first one when he was a stranger to her, and he was named by her as executor. When the one in question was prepared, the witnesses were two persons who lived outside the city, one of them, Mrs. Leaders, being an aunt of the first wife of George B. Newell, and the other, Mrs. Whipple, a lady who accompanied her. They both say the will was drawn that day by Mr. Newnham and all they recall hearing Mrs. Rosa say about it was “she wanted George to have everything she had, because he was the best friend she had ever had.” They were both strangers to Mrs. Rosa. A neighbor, Mrs. Downs, who had for some time occupied one of Mrs. Rosa’s houses, and who had at times written letters for her, testified as to many occurrences which tended to show mental weakness on her part after her illness in 1905 and 1906. She became suspicious that those who came to .'her home were stealing things out of the house. She also testified that prior to 1917 she had frequently heard Newell say to Mrs. Rosa that Mrs. Newell was .a, “bad .woman,” that she "had given him a disease/’ and on the witness afterwards asking Mrs. Rosa if she, believed it she answered, "Why, he says so, it must be so,” that the day the last will was drawn she saw Mr. Newell, Mr. Newnhain, and a witness, Mrs. Herson, a friend to whom a bequest of $500 was made, on the back porch just .after dinner time, talking together, that the next day Mrs. Rosa said to her, “I signed some kind of a paper yesterday that I don’t know what it is,” she said, "When George and that old judge get anything into their heads, there is nothing else to do.”

There is plenty of testimony in the record tending to show that the deceased had sufficient mental capacity to make a will. She transacted business at various times which indicated a perfect knowledge of what she was doing. The testimony of her physician, Dr. Donald P. Osborn, is very persuasive. Her testimony, given in her suit for damages against Mrs. Newell, inserted in the record, standing alone, would be convincing that she was mentally competent

While much that has been said in this review of the testimony may more particularly apply to undue influence, as was said in Re McMaster’s Estate, 163 Mich. 210:

“It is apparent here that it is in fact impossible to wholly separate these issues.”

In that case, it was also said:

"The will itself and the circumstances attending its execution lead one, naturally, to inquire: First, whether Mrs. McMaster understood the effect of the instrument; and, if she did, second, what prompted her to give to Mr. Cooper nearly one-half of a considerable estate, solemnly assigning as a reason therefor a fact which did not exist and could have been considered by her as existing only through misapprehension? The inquiries suggested were pursued at the trial with such result that the court, in my opinion, was required to submit to the jury the question whether undue influence had been exercised in procuring the will to be made, and? also, though I reach' this conclusion with some hesitation, the question of the mental competency of the testatrix. Mental competency, in this case, includes ability to understand the meaning and effect of the residuary clause of the will and may involve, depending upon how the jury view the testimony, including the will itself, the ability to detect fraud, if fraud was attempted. Undue influence may be exerted to prevent the detection of fraud, may amount to fraud, may be strong enough to secure the provisions desired, although fraud is detected or suspected, and confidence may accept and may be relied upon to accept untruthful and fraudulent explanation. 1 Woerner’s American Law of Administration, p. 44 et seq.”

If we apply the reasoning suggested by this quotation to the proofs here submitted, can we say as a matter of law that there was no testimony supporting the claim of mental incompetency and that the jury should have been so instructed? While impressed with the weight which we think should be given to the proofs offered by proponents, we feel constrained to answer this question in the negative and to say that there was sufficient evidence supporting contestants’ claim to justify its submission to the jury.

Insane Delusion. The testimony offered by contestants tended to prove that the deceased had become possessed with the belief that her niece, Elizabeth, was an immoral woman. She stated to several persons that George had so informed her. Mrs. Newell testified that George denied saying any such thing to Mrs. Rosa; that he' said, “The only thing I ever said about you was that you were a good woman and always good to me.” If this be true, and George does not deny it, then it is apparent that Mrs. Rosa was under the influence of such a delusion. In addition to this, the fact is established that the deceased, after George began living with her and took charge of her affairs, conceived a violent dislike for her niece, whom she had theretofore treated with much affection. She evidently believed that Mrs. Newell had become unworthy of her continued regard. If such belief was founded on repeated false statements and insinuations made to her by George, so that her mind became obsessed with its truth and deluded into believing that which her lifelong acquaintance and close personal relations with her niece should have led her to reject, she might have been no less acting under a delusion. As was said by Chief Justice Shaw in Woodbury v. Obear, 7 Gray (Mass.), 472 (quoted approvingly in Haines v. Hayden, 95 Mich., at page 345).

“In the case of monomania and insane delusion, a person by artful, false, and repeated surmises and insinuations, operating upon a sensitive and excitable mind of another, may foster and exasperate, if not create, an insane delusion, and at the same time, and by the same means, obtain such an influence, over him as to induce him to make a will, or do any other act which he would not have done but for the existence of the insane delusion, and the undue influence concurring With it.”

The jury had also the right to consider, as bearing on this question, the language in the residuary clause of the will that George “has done more to help me and make, my life happy than any other person.” Whether this delusion, unfounded so far as the record shows by anything to support it, caused such an insane prejudice as influenced the deceased in the disposition of her property by her will, was a question for the jury to pass upon.

In his instructions to the jury, the court said:

“In addition to what I have said as to what constituted mental soundness, you are instructed that an. insane delusion exists when a man or woman persistently believes supposed facts, which have no real existence, and so believes such supposed facts against all evidence and probabilities, and without any foundation or reason for the belief, and conducts himself or herself as though such facts actually existed.”

He further instructed them that unless such delusion caused an insane prejudice against her niece and entered into and influenced her in the disposition of her property, and without which she would have disposed of it otherwise, then they should not on that account find for the contestants. We think the question was for the jury to pass upon, and that it was fairly presented to them.

Undue Influence. The rules of law applicable to a charge of this nature, and the proofs required to support it, have been so recently stated by this court in a number of cases that we but refer to them. Haines v. Hayden, 95 Mich. 332; In re McMaster’s Estate, 163 Mich. 210; In re Williams’ Estate, 185 Mich. 97; In re Fay’s Estate, 197 Mich. 675; Phelps v. Beard, 209 Mich. 266.

It is urged that the omission of the. testatrix to leave any considerable part of her property to the contestants is accounted for by the proceedings they had begun to have her declared mentally incompetent. This, however, in no way explains the fact that in the will made in 1916, before any such proceedings were had, and, so far as the record shows, before she had any reason for feelings of ill-will towards either of the contestants, she bequeathed to each of them but $500 and left the bulk of her estate to George B. Newell.

Counsel for proponents insist that In re Weber’s Estate, 201 Mich. 477, is controlling on the question here presented. In that case, the will was drawn by a reputable, disinterested attorney, whom the testatrix had sent for. The bequests are- all to relatives, the residue being bequeathed to a sister and nephew. The contestant was a step-son, to whom she had willed but $50, and with whom her relations were strained. Mr. Justice Brooke, who wrote the opinion, found that there was no evidence warranting the submission of the question of testamentary capacity to the jury and that—

“The will itself not only bears no internal evidence of undue influence but represents the natural and probable workings of a normal mind.”

The' distinction between that case and this is apparent. Here, the will was drawn by an attorney from another city, employed by George B. Newell to defend her in the probate proceedings. This comparative stranger is named as executor. The residue of the estate is left to one who is not á relative. The' facts in these respects alone are so different as to render the opinion in that case of no controlling effect on the facts here presented.

The testimony, taken as a whole, clearly presented a case for the consideration of the jury. Witness after witness testified to the influence apparently exercised over this old lady by George B. Newell. The whole current of her life became changed after he came to live with her. No useful purpose will be served by cumbering this opinion with quotations from the record. We are satisfied that no error was committed in the submission of this question to the jury nor in the instructions of the court relating thereto.

Admission and Rejection of Testimony. Many errors are assigned under this heading. They are discussed in a general way by counsel. Their complaint is thus summarized in their brief:

“In fact, the history of Susan Rosa’s life as viewed by the contestants was unfolded before the jury, all to the disadvantage of the will which she had solemnly made.”

The claim of the contestants was that the testatrix became much weakened both in mind and body during the period between her illness in 1905 and 1906 and the time when the will in question was made; that, otherwise, George B. Newell would not have been able to have exerted the influence over her which he did exert or have caused her to believe what he told her about her niece. The residuary clause in the will stated that he was the best friend she had ever had. These issues opened the door to a wide field of investigation by the jury as to her former life. We are of the opinion that there was no abuse of discretion in the admission of the testimony complained of. Porter v. Throop, 47 Mich. 313; Haines v. Hayden, supra.

Error is assigned upon permitting the physicians called by contestants to answer a hypothetical question asked them. The objection made was that “It calls for a conclusion without stating the facts.” On being asked by the court what he claimed was omitted, counsel replied: “He does not state all the evidence in detail and all the facts and circumstances.” It will serve no useful purpose to insert the question at length. It quite fairly stated the facts which had been testified to by witnesses for contestants, upon which they based their claim of mental incompetency. The doctors were cross-examined at length as to the reasons for the opinions expressed by them. A hypothetical question need not include all of the facts concerning which testimony has been given. The opinion of the witness may be taken on any combination of facts which counsel may believe the jury will find to be established by the proofs. As the answer depends on the truth of the facts stated, it would be an unfair rule to require counsel to include in the question all the testimony adduced or which he expected to adduce. He need only include such as he feels satisfied will be accepted by the jury as true. 1 Wigmore on Evidence, § 682; 17 Cyc. p. 242 et seq.; Rivard v. Rivard, 109 Mich. 98.

The following language of the Lord Chief Justice in Banks v. Goodfellow, L. R. 5 Q. B. 549, quoted in Rivard v. Rivard, supra, seems peculiarly applicable to the entire case as made by contestants’ proofs:

“Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion or aversion take the place of natural affection; if reason and judgment are lost, and the mind becomes a prey to insane delusions calculated to interfere with and disturb its functions, and to lead to a testamentary disposition due only to their baneful influence, — in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand.”

After a painstaking examination of the entire record and a careful consideration of the exhaustive briefs of counsel, we are convinced that no reversible error is disclosed.

The judgment is therefore affirmed, with costs to contestants.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Bird, JJ., concurred.


author: Shaepe, J.

text:
    RUNDELL v. FARMERS’ CO-OPERATIVE ELEVATOR CO. OF CORUNNA.
    1. Corporations — By-laws — Third Persons Not Chargeable With Notice.
    One engaged as manager of a farmers’ co-operative association, organized under 3 Comp. Laws 1915, §§ 11311-11320, was not chargeable with notice of the provisions of its by-laws authorizing the board of directors to remove the manager or any officer, agent or employee, if they deemed it necessary for the best interests of the company.
    2. Same — Actual Notice op Limitation in By-laws Binding.
    In an action for a balance of salary ■ claimed to be due on a contract of employment as manager of defendant association for a year, where plaintiff was discharged before the expiration of the year, evidence held, sufficient to justify the trial judge in finding as a fact that plaintiff had knowledge of the provisions of the by-laws of defendant, at the time the contract was entered into, giving the board of directors arbitrary power to discharge the manager.
    3. Same — Principal and Agent — Powers op Agent — Notice of Limitation Binding.
    While a person dealing with the agent of a corporation is justified in assuming that said agent possesses such power as his employment would generally indicate, and is not bound to take notice of limitations of such power fixed by the by-laws, yet when said third person has direct notice of limitations placed' upon the agent’s authority, he may not ignore such notice and fall back upon what would otherwise have been apparent authority.
    4. Same — By-laws—Arbitrary Power to Discharge Employees —Legality.
    The adoption of a by-law by a farmers’ co-operative association, organized under 3 Comp. Laws 1915, §§ 11311- . 11320, giving to its board of directors arbitrary power to discharge employees, held, within the power of the association under the act and enforceable by its officers.
    5. Pleading — Amendments—Discretion of Court.
    Permitting an amendment to the notice attached to a plea is usually considered within the discretion of the court.

      6. Appeal and Error — Amendments—Harmless Error.
    Where the plea first filed gave notice of the defense on which the court acted in directing a verdict for defendant, plaintiff was not prejudiced by the action of the court in permitting an amendment to the notice attached to the plea.
    Error to Shiawassee; Collins (Joseph H.), J.
    Submitted April 9,1920.
    (Docket No. 35.)
    Decided June 7, 1920.
    Assumpsit in justice’s court by Joseph Rundell against the Farmers’ Co-operative Elevator Company of Corunna for breach of a contract of employment. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      John T. McCurdy and George E. Pardee, for appellant.

      Pulver & Bush, for appellee.
   Shaepe, J.

The defendant is organized under Act No. 35, Public Acts of 1899 (3 Comp. Laws 1915, §§ 11311-11320), under which only those' engaged as “fruit growers and farmers” may become members. After incorporation, the association is required by the act to “make and adopt all needful by-laws for its government,” including such as “may be deemed necessary for the management” of its affairs.

Section 3 of article 5 of the constitution and bylaws reads:

“The board of directors may hire a general manager and such other ^person or persons as they deem necessary to carry on the business of the corporation, and shall fix their compensation and prescribe their duties. They also shall have power to remove the manager or any officer, agent or employee for misconduct or incompetency or if they deem it necessary for the best interest of the company.”

Section 3 of article 8 reads:

“Neither the board of directors nor any other person or persons has any legal right to alter, amend or ignore these by-laws or to refuse to comply with all their provisions.”

The plaintiff, who had theretofore been engaged as an employee in the milling business in Owosso and Corunna, was active in promoting defendant’s organization. He procured a copy of the by-laws of the Chesaning Company (from which the sections above quoted were copied), and these were shown by him to farmers from whom he solicited subscriptions. He was present at the organization of the association and when the by-laws were adopted. He was allowed $222 for his services and expenses in organization work, and this was credited on a subscription he signed for 250 shares of stock, the balance being afterwards paid by him.

Immediately following the organization, and on July 2, 1917, plaintiff entered into a written contract with the defendant, signed by its president and secretary, to work for it as its manager for one year thereafter at an annual salary of $1,500. In February, 1918, dissatisfaction arose and the defendant’s officers, pursuant to action of its board of trustees, discharged plaintiff. Mr. Colby, the secretary, testified that when so advised plaintiff answered: “All right, if you don’t want me to work for you, why I don’t want to work for you.” He accepted the balance then due him for services. .After the expiration of the year, he sued in justice’s court for the balance of the year’s salary. On appeal from the judgment thus rendered to the circuit court, the trial judge, after the proofs were submitted, directed a verdict for the defendant. Plaintiff appeals.

Was there error in such direction? We agree with counsel that plaintiff was not chargeable with notice of the provisions of the by-laws. Defendant’s counsel claim that he had personal knowledge thereof. The action of the .trial court was based on such fact. When the motion of the .defendant for a directed verdict was under consideration, the following colloquy took place between the court and counsel:

“The Court: * * * It appears from the testimony here that plaintiff had full knowledge of the by-law in question, from his own evidence. * * * Under the contract the company saw fit to reserve to itself in regard to the test of the discharge Of its employee. * * * I am taking the'testimony in the case as given by the plaintiff as to what his knowledge was'about this by-law.
“Mr. Pardee: There is no question but what he had knowledge of this by-law, but there is a question whether, under the peculiar circumstances here that that by-law became a part of the contract.
“The Court: * * * I ask you, what difference would it make, in view of the testimony in this case, whether he was a stockholder or whether he was a third party or what he was.
“Mr. Pardee: You mean, in view of the fact that he had knowledge of the provisions of this by-law in question?
“The Court: Yes, sir.”

It is true that after these admissions, which were fully justified by the testimony theretofore given by plaintiff, he was recalled and (seemingly in the absence of the jury), after being questioned about his stock in the company and cross-examined thereon, on his rediréct-examination was asked:

“Q. And you may state whether or not on July 2, 1917, when you entered into this contract in question, whether you then had knowledge of this clause in section 3 of article 5 as follows: ‘Or if they deem it necessary for the best interest of the company?’ ”

■— and answered:

“A. I never remember of seeing that or having any knowledge of it.”

His former testimony, wherein such admissions were made, was then read over to him by defendant’s counsel and he testified: “I have no modifications to make in my testimony.”

Upon the record thus made, we cannot but conclude that the trial court was justified in finding as a fact that plaintiff had knowledge of the provisions of the by-laws at the time the contract was entered into. The admissions of counsel made in open court, especially when predicated upon the testimony theretofore given by plaintiff, must be declared binding upon him. His knowledge being thus established, we are constrained to hold that the action of the trial court was justified. The reason for such holding is clearly stated in Hallenbeck v. Casket Co., 117 Mich. 680, 684:

“It is true, as contended by plaintiff, that by-laws of a corporation do not ordinarily bind third persons. 2 Beach, Mod. Cont. § 999; Union Mutual Life Ins. Co. v. White, 106 Ill. 67. But the reason why this is so is that persons dealing with .the agents of corporations are justified in assuming that they possess such power as their employment would generally indicate, and are not bound to take notice of limitations of such power fixed by the by-laws. When, however, the third person dealing with an agent has direct notice of limitations. placed upon his authority, ft would be perversion of that salutary rule to hold that he may ignore such notice, and fall back upon what would otherwise have been apparent authority.”

The parties with whom plaintiff was dealing were members of the association and' the success of its operation depended largely on his ability to satisfy them all in his dealings with them. This depended not only on his integrity but on his personality and tactfulness, and, while such a by-law involves an arbitrary exercise of power, we think its adoption within the power of the association under the act and enforceable by its officers. Schmand v. Jandorf, 175 Mich. 88 (44 L. R. A. [N. S.] 680, Ann. Cas. 1915A, 746), in which the authorities are collected and carefully reviewed. See, also, Webster v. Jossman, 199 Mich. 98.

Error is alleged on the action of the court in permitting an amendment to the notice attached to defendant’s plea. Such action is. usually considered within the discretion of the court, but, as the plea first filed gave notice of the defense on which the court acted, the plaintiff was not prejudiced thereby. Neither do we find that the rulings on the admission and rejection of testimony in any way affected the plaintiff’s rights, in view of the legal conclusion reached by the trial court, in which we concur. We need not consider whether plaintiff was in fact a member of the association.

The judgment is affirmed.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Bird, JJ., concurred.


text:
    SCHLUMP v. SCHLUMP.
    Divorce — Aukoiíy—Excessive Award,
    In. a suit by a wife for a divorce, where it appears that the accumulations of the parties amounting to $15,890 were largely due to her conduct, good management, and work beyond the ordinary duties of a wife, the decree of the court below awarding her one-half of the property, as the result of their “joint adventure,” and, in addition, for alimony, the expenses of litigation, and for the support, maintenance, and education of their minor child, one-third of defendant’s one-half, will be modified, providing that on the execution of the conveyances therein provided for, the plaintiff pay to defendant the sum of $1,000.
    Appeal from Wayne; Knowlen (Frederick W.), J., presiding,
    Submitted April 22, 1920.
    (Docket No. 41.)
    Decided June 7, 1920.
    Bill by Louisa W. Schlump against Frederick C. Schlump for a divorce. From a decree for plaintiff, defendant appeals.
    Modified and affirmed.

      William Henry Gallagher and Francis T. McGann, for plaintiff.

      James H. Pound, for defendant.
   Sharpe, J.

The plaintiff and defendant were married in Detroit in 1893. In 1909, she commenced proceedings against him for divorce, but a reconciliation was effected and the suit discontinued. The bill herein was filed on May 31, 1916. It alleges extreme cruelty, non-support and habitual drunkenness. Proofs were taken in open court. The trial judge filed an opinion, in which he said:

“The court finds for the plaintiff on the main issue, and that she be allowed the custody of the child, Frederick Schlump. I am obliged to say that in my opinion defendant is guilty of extreme and gross cruelty. This defendant has denied it and has produced some evidence in support of his claim, but I find the testimony of the plaintiff substantially true, and if it is true, it presents an unusual case as far as my experience is concerned, of extreme cruelty.”

It will serve no useful purpose to review the testimony of the many witnesses who were sworn. The trial judge saw and heard them, and after a careful reading of the record we are convinced that the conclusion reached by him was fully 'justified.

He found the accumulations of the parties to be of the value of substantially $15,890, and that they were “largely due to her conduct in all these years, to her good management and ability accompanied by her very hard physical work, beyond the duties that ordinarily attach to a wife.” He concluded that this sum should be treated as the result of their “joint adventure” and that she was entitled to one-half thereof. He also awarded her for alimony and the expenses of litigation, and for the support and maintenance and education of their minor child, one-third of his one-half, or $2,648. The boy, Frederick Schlump, was born on January 12, 1906. He is now past 14 years of age. We feel constrained to hold that the allowance to plaintiff over and above the one-half of their joint accumulations is somewhat excessive.

The sums awarded the respective parties being in the nature of a division of the property owned by them jointly as well as severally, the decree will be amended by providing that plaintiff, on the execution of the conveyances therein provided for, shall pay to defendant the sum of $1,000. Otherwise it is affirmed, without costs to either party.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Bird, JJ., concurred.


author: Moore, C. J.

text:
    PEOPLE v. McLEAN.
    1, Intoxicating Liquors — Criminal Law — Evidence — Sheetcienoy.
    In a prosecution for the unlawful possession of intoxicating liquor, evidence field, sufficient to sustain a conviction.
    2. Same — Possession of Liquor in Home — Husband and Wife— Presumptions.
    Defendant’s testimony that her husband had no knowledge that the liquor was in the house until the officials had taken it away, field, to overcome the presumption, if one existed, as contended by defendant, that the possession of the liquor was that of the husband rather than that of the wife.
    Exceptions before judgment from Muskegon; Vanderwerp (John), J.
    Submitted April 16, 1920.
    (Docket No. 111.)
    Decided June 7, 1920.
    Mabel McLean was convicted of violating the liquor law.
    Affirmed.

      Macdonald & Macdonald, for appellant.

      Alex. J. Groesbeck, Attorney General, Christian A. Broek, Prosecuting Attorney, and Harry W. Jackson, Assistant Prosecuting Attorney, for the people.
   Moore, C. J.

The defendant was convicted of unlawfully having in her possession 11 quarts of intoxicating liquor. She has brought the case here by writ of error. Mrs. McLean was the keeper of a rooming house in Muskegon. She was married and lived with her husband who worked in one of the Muskegon factories.

Counsel claim, we quote from their brief:

“First: That there is nothing shown in the record indicating in the slightest degree that the defendant possessed this liqúor in the legal sense of the phrase, and
“Second: That the liquor found in the house must be, under the rules laid down by the courts, in the possession of the defendant’s husband, by presumption, and such presumption has never been rebutted by the prosecution.
“Possession as a legal proposition has a somewhat different meaning than when the term is used in the ordinary affairs of life. It means more, usually, than the mere physical control of an article. It is more closely allied with enjoyment or prospective enjoyment, ownership and control. For instance, in the case of Fuller v. Fuller. 84 Me. 475 (24 Atl. 946), the court said:
“ ‘The legal idea of “possession.” though, varying according to circumstances, still embraces the conception of right as well as that of physical control.’
“In the present case, admitting that the defendant or some member of her household had the physical control of the liquor found there, still it is contended here that there is nothing in the record that denies her claim that she had no right or title in the liquor, wanted none and in fact had demanded its removal.”

The record discloses that a search warrant was obtained and a visit was made by officials to the rooming house kept by the defendant. Her grandfather lived with her. There was found by the officers in a suit case in a closet opening off from the bedroom of her grandfather 11 quarts of whisky. In his charge to the jury the claim of the defendant was stated by the trial judge as follows:

“The respondent claims that she is not guilty, of this charge. She says that on the evening of the night before, that is, of the 10th day of April last, between eight and nine o’clock, a man whom she did not know came to her rooming house at 14 East Clay avenue in this city and had with him a suit case; that she invited him to come in the front sitting room adjoining the hall of the house; that after the man had sat down ■in this room he asked her if she wanted to buy any whisky, and she told him she did not and did not want it in her house; that just at that time a man by the name of Trampos who kept a grocery store where the respondent did her trading, came into the room where' respondent and the other man were to tell her that he had left some groceries she had ordered and had left.them in her kitchen, and then in the 'next room asked the respondent what the other man wanted or had to sell and she told him; that the respondent was then called upstairs where she was for a short time, and that when she came back to the front room she found both Trampos and the other man gone, and she did not see any liquor or the suit case; that the next morning she was doing her work in and about her grandfather’s room, and found the suit case and asked her grandfather how it came there and that the grandfather told her that Trampos and the other party had left it there the night before; and shortly before dinner she went to Trampos’ store and asked him about the matter, and that he claimed to have bought the whisky the night before, and that Trampos asked her to allow it to. be left in the closet or to place it in the closet of her house until after dinner, when he would come and get it, and that she told Trampos that she did not want it in her house and to come and get it as soon as he could, which he. promised to do. The respondent claims that he had, not called for it when the officers came there with a search warrant, between two and three o’clock. The respondent also claims that she didn’t buy the whisky, ■ didn’t own it, and didn’t know it was there until about ten o’clock of the morning of April 11th, and that she had done her best to get rid of it after learning that it was there.
“Now, gentlemen, if the respondent’s version of this matter is true, that is if you find from the evidence that this suit case and contents of liquor was left there the night before by the stranger and Trampos after she had refused to buy it, and that she did not own it, and that when she found out it was there she made every effort as she claims to have it taken away from there, that is, as soon as she learned it was there on the morning of April 11th, then she is not guilty of this charge.”

The defendant was sworn as a witness on her own behalf. ' We make extracts from her testimony as follows :

“I am thirty years old and married. I rent a house at the above address and keep roomers. I have no other business. I had been keeping roomers about three weeks on the 11th of April. My family consists of my grandfather and my husband. My grandfather is an invalid and so old that he can hardly get around. He can be up and around the house but cannot go out on the street. My husband works at the Continental.’’

She described the coming of a man to her house and what was said by him and by her, and continuing she said:

“* * * Trampos keeps a store on Western avenue and I do business with him. He delivers the goods to me. He came down the alley to the back door.
“Q. And he came into your room where you were?
“A. He did.
“Q. Did he deliver you some goods then?
“A. Yes, sir.
“Q. Was this suit case opened that this man carried at that time?
“A. No, it wasn’t.
“Q. Did he hear what the man said to you?
“A. No. He asked me what the man had and I told him he had whisky and had tried to sell it to me.
“Q. The next day did you learn anything about that suit case?
“A. The next day when I was doing my work in my grandfather’s room I found a suit case, and I asked my grandfather whose suit case it was and he said that that man from the store put it in there the night before.
“Q. About what time was that?
“A. That was ten or after in the forenoon of the next day.
“Q. What did you do then?
“A. I had to go to the store for groceries and I told him that he had better take his whisky away, that I didn’t want it there.
“Q. How did you know it was whisky?
“A. When I picked up the suit case I didn’t look in it but I heard the bottles rattle. After I went to the store he told me he had bought it from the fellow the night before.
“Q. Did he tell you he would come and get it?
“A. He did. He told me to set the suit case in the closet and he would come after dinner and get it.
“Q. And that is where you found it?
“A. I found it in my grandfather’s room.
“Q. Did the man come and get the—
“A. He didn’t come. The officers came before he got there.” * * *

On the cross-examination she said in part:

. “Q. You said something like this, T don’t want any whisky in the house?’
“A. Yes.
“Q. And he stayed right there sitting down, did he?
“A. He didn’t have time to go before Mr. Trampos told him he would take it. Mr. Trampos came to deliver some groceries. He left them in the kitchen and came in to tell me he had brought them. He .called me into the middle room.
“Q. What did he say to you?
“A. He asked me what that guy had in his suit case. I told him that I didn’t know but he tried to sell me whisky. * * *
“Q. When did you first learn theré was whisky in your place?'
“A. The next day between ten and eleven. I went into my grandfather’s room, and found the suit case, and he said that Spiros had put it there the night before. I moved the suit case, but did not open it. I put it in the closet. Then I went over to Trampos’ store before dinner, and told him to get it. He said he would come and get it as soon as he got a chance to do so.”

-She also testified that her husband did not know the whisky was in the house until the evening of the day when the officers seized it in the afternoon.

Mr. Trampos was a witness, and, after being warned as to his constitutional rights, testified in part:

“Q. Do you know Mabel McLean?
“A. Yes, sir. She lives at 14 East Clay avenue. My store is just back of her house. Mrs. McLean trades with me and I deliver groceries to her house. I delivered some groceries to her house the night of April 10th. I don’t remember the time of night, but it was sometime between eight and nine o’clock. It was after dark. I went in the back door.
“Q. And who was there if anybody?
“A. Mrs. McLean was there at the time, and some other fellow.
“Q. Who was the other fellow?
“A. I don’t know him. I see him and I ask Mrs.' McLean who it is. She said T don’t know who it is.’ She told me ‘he has got some whisky for sale.’ * * *
“Q. Then what happened?
“A. I asked her, ‘Who is this man?’ and she say ‘He has got some whisky for sale, but I don’t want to buy it,’ and at the same time she said ‘you had better get out of my house; I don’t want to buy anything/ That is what she said and at the same time she left the room and went upstairs, and after that he told me if I want to buy that whisky. I take him to the next room. He has the whisky in the suit case and I take him to the next room and I ask him about the whisky, if he wanted to sell it and I take it. I take the suit case with the whisky, and I put it by the bedroom where her- grandfather sleep, and I left her house. * * * The next day she come to my store. I don’t remember exactly when, but about noontime, something like that — and she tell me ‘You come and take the whisky’ because she don’t want it, and she is going to throw it out if I don’t take it, and I said to her, T am a little busy now,’ because that was Friday and Friday I try to get ready for Saturday business. I said: T have got no time to do that; .1 will be over sometime this afternoon; but this afternoon the officers come and take the whisky.”

We have quoted enough of the testimony to show that Mrs. McLean had the whisky in her possession with knowledge of what it was stated to be at first, and after a time with knowledge of what it was. She undertook to explain its possession in such a way as to relieve herself of the charge that her possession was a guilty possession.

We have quoted enough of the charge of the court to indicate that the jury showed by their verdict that they did not believe Mrs. McLean’s version of the transaction. If any one has a right to complain of the charge it is not the defendant. In the present state of the law, when she found the whisky was in the house she would have done well to have notified the officers of the law instead of the person who had bought whisky in her house after she had told him that an effort had been made to sell her the whisky.

We now come to the second proposition of counsel that the presumption is that the possession of the whisky was the possession of Mr. McLean as the defendant was a married woman. Even if it be conceded that the contention is a proper one ordinarily, the testimony of Mrs. McLean, which we have quoted, overcomes the presumption. That testimony shows that she was conducting the business of a rooming house keeper and that her husband had no knowledge the whisky was in the house until after the officials had taken it away. We find no reversible error.

The record does not show whether sentence has been pronounced. If it has, the judgment is affirmed. If the case is here on exceptions before sentence the conviction is affirmed and the case is remanded for further proceedings.

. Steere, Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.