text:
    CONNOR v. McRAE.
    1. Appeal and Error — Trespass—Evidence—Damages.
    Where a witness was asked, on cross-examination in trespass quare clausum, if a good logging road cut through timber would not add to its value, and he stated that it would depend on circumstances and that he would consider it damaged to the value of the timber cut, the reply of the witness did not prejudice plaintiff and was not reversible error. Nor was it error to allow plaintiff, who was asked if he had any sinister motive, to reply that he had not. Considerable latitude is allowed on cross-examination of a party to the action to ascertain his interest, candor, etc.
    2. Same — Cross-Examination—Discretion or Court.
    The trial court did not err in refusing a request of plaintiff that under the testimony a stated quantity had been removed, estimates of the parties being contradicted and in conflict.
    3. Same — Trial.
    That the court refused a request, which the jury’s finding covered in a manner favorable to the appellant, was not a ground for reversal.
    4. Same — Trial—Charge—Treble Damages.
    No liability for treble damages arises under 3 Comp. Laws, §§ 11204, 11205, 3 Comp. Laws 1915, § 14632, if the trespass was casual and involuntary, or if the defendant had probable cause to believe that he owned the timber. Held, under the evidence, that the question was one for the jury.
    5. Same — Trespass—Logs and Logging.
    And there were sufficient grounds for submitting separately two trespasses for cutting timber to the jury, to determine whether they were casual and involuntary so as to prevent liability for treble damages, where it was claimed one was where defendants had no timber and the other was in a section in which they owned a quarter section, and cut over the line.

      6. New Trial — Sufficiency of Affidavit.
    Affidavits of plaintiff and his attorney upon a motion for a new trial, as to what an absent witness would testify to, are insufficient, since such motion should not be granted upon hearsay testimony.
    Error to Gogebic; Cooper, J.
    Submitted October 3, 1916.
    (Docket No. 20.)
    Decided December 21, 1916.
    Trespass quare clausum fregit by Robert Connor and another against Hector McRae, Donald McRae, and Paul Francis for treble damages under 3 Comp. Laws, § 11204 (3 Comp. Laws 1915, § 14632). Judgment for plaintiffs for an insufficient amount. Plaintiffs bring error.
    Affirmed.

      Herbert M. Norris, for appellants.

      Van Slyck & Hall, for appellees McRae.
   Stone, C. J.

This is an action of trespass on land for treble damages, brought under section 11204, 3 Comp. Laws (3 Comp. Laws 1915, § 14632). The plaintiffs owned lot 1 of section 10, and the northeast quarter, the southeast quarter, and the southwest quarter of section 14 in township 50 north, range 45 west, in Gogebic county; and the defendants McRae owned section 16 and the northwest quarter of section 14 in the same township.

On October 2, 1912, the defendants McRae entered into a contract with the John Schroeder Lumber Company to sell to it-the hemlock, basswood, ash, spruce, balsam, maple, birch, and cedar logs on said section 16 and the northwest quarter of section 14. The logs from section 16 were to be banked on said section, and the logs from the northwest quarter of section 14 were to be banked on section 10, on the shore of Lake Superior, and the timber was to be logged in the winter of 1912-13.

On. October 7, 1912, the defendants McRae entered into a contract with the defendant Francis to cut into logs all of the timber on said northwest quarter of section 14 and the entire of section 16, and bank the same on said sections 10 and 16 on the shore of Lake Superior.

One Ira Bush was interested with the defendants McRae in the contract between them and the Schroeder Lumber Company and the Francis contract, and did the principal part of the negotiating of the two contracts. He did not own any interest in the land, but had financial interest in the net profits, which was to be one-half. This interest was confined to section 14.

Before the contract with defendant Francis was signed defendant Hector McRae' and Mr. Millard, a surveyor, and defendant Francis, were on section 14 looking over the timber, and it was then known to both Mr. McRae and Mr. Francis that the lines on the east and south sides of the northwest quarter of section 14 could not be followed, but that the other lines, namely, the section lines, could be followed easily.

According to the testimony of defendant Francis, it was agreed between him and Mr. Bush at the time the contract with him was made that Mr. Millard, or some one else, would go up and run the lines some time before Francis should go to cutting. This was denied by Mr. Bush, but he did testify that after Mr. Francis got started he told Mr. Francis that, if he would let him know a few days beforehand, he would send Mr. Millard up to run the lines. He also testified on cross-examination :

“I told Mr. Francis that I wanted to run those lines, or have those lines run so that he wouldn’t commit any trespass.”

The defendant Francis began operations by building camps on October 17, 1912, and Mr. Millard did not run the lines on section 14 until about January 23, 1913, and after the trespass on section 14 had been committed.

Defendants McRae knew that they owned no land on section 10 where the logs were to be banked which were taken from the northwest quarter of section 14, and they never attempted to get permission to bank the logs there. Defendant Francis claimed that he supposed Mr. Bush was to arrange for banking on section 10, but Mr. Bush never arranged for banking on said section. No permission was ever given by the plaintiffs to cut any timber on their lands on section 14, or on section 10, or to bank any timber on section 10.

Before Mr. Millard came to make the survey and before the cutting, Gordon McLean, one of defendant Francis’ employees, who had had some experience in running lines, ran the lines on the east and south of the northwest quarter of section 14 by stepping it off and using a pocket compass. McLean, in trying to verify his first line, ran a new line which was inside the first line and nearer to the McRae land. This, was in the latter part of December and before Mr. Millard ran the lines. By cutting to the McLean inside line the defendants trespassed upon the southwest quarter of section 14, it is claimed by plaintiffs, 9 rods and 23 links south of the center post, running from there diagonally northwesterly to the southwest corner of the northwest quarter of section 14; and on the northeast quarter of the section at the eighth line it was cut for the space of 15 rods running diagonally from the eighth line northwesterly to the northeast corner of the northwest quarter of section 14, and from the eighth line southwesterly to the southeast corner of the northwest quarter of section 14, making, it is claimed, 5 acres on the north of the southwest quarter and 7% acres on the west of the northeast quarter from which the timber was cut on section 14, making a total claimed by the plaintiffs of 94,560 feet, of which 82,860 was hemlock, the remainder consisting of maple, ash, basswood, and birch.

It was further claimed by the plaintiffs that the timber that was .cut on the logging road of lot 1, section 10, was a total of 3,650 feet, and the estimated amount of timber cut on the landing on lot 1 of said section 10, of all kinds and sizes, was 25,000 feet, making a total trespass of 123,210 feet.

There was a conflict of testimony as to the quantity and value of this timber; but, taking the Schroeder Lumber Company’s contract and the Francis contract as the basis for determining the stumpage value of the timber that was cut, the hemlock 12 to 18 feet long would be $1.75 per thousand, and from 18 to 24 feet would be $2.75; basswood and ash would be $5.75, and birch would be $2.75; maple would be $.75, and spruce and balsam would be $3.75.

When defendant Hector McRae’s attention was called to the fact that there was a trespass on section 14, there was testimony tending to show that he said:

“I wouldn’t say anything about it, they will find out soon enough about the trespass.”

This was denied by the defendant Hector McRae.

The case was submitted to the jury, and they were instructed by the court that the trespass on lot 1, section 10, and on the northwest quarter of section 14 was undisputed, and that the only questions for the jury were as to the extent of such trespass and the resulting damages, and the jury were required to answer certain special questions as follows:

“Did the defendants McRae trespass casually and involuntarily on lot 1, section 10?” The answer was: “No.”
“Did the defendants McRae tréspass casually and involuntarily on section 14?” This was answered: “Yes.”
“Was the trespass on lot 1 of section 10, casual and involuntary on the part of defendant Paul Francis?” Answer: “No.”
“Was the trespass on the west half of the northeast and north half of the southwest quarter of section 14 casual and involuntary on the part of defendant Paul Francis?” The answer was: “Yes.”

So that it appeared by the verdict of the jury that as to all the defendants the trespass was wilful on lot 1, section 10, and casual and involuntary as to all defendants on section 14. The jury found that the quantity of timber cut on lot 1, section 10, was 15,000 feet valued at $2 per thousand, being $80, which sum was trebled by the circuit court in entering judgment. The jury also found that the damage on section 14 was 8 acres at 10,000 feet per acre, or 80,000 feet in all, and that the value per 1,000 feet was $1.75, making a total for damages on section 14 of $140.

There was a motion for a new trial on the part of the plaintiffs based on the following reasons:

(1) Because the verdict of the jury in finding that the trespass was casual and involuntary as to section 14 was against the weight of the evidence.

(2) Because the verdict of the jury as to the amount of damages on lot 1, section 10, was inadequate and contrary to the weight of the evidence.

(3) Because the verdict as to the amount of damages on section 14 was inadequate and contrary to the weight of the evidence.

(4) Because since the trial the plaintiffs had discovered new evidence material to the issue in said cause, which was not cumulative, and which was not, and could not have been, discovered before the trial.

(5) Because the court erred in its charge to the jury on the subject of the trespass being casual and involuntary, in that the court unduly emphasized the position taken by the defendants, and because the court refused to give plaintiffs’ requests to charge, and because the charge of the court as given would lead the jury to believe that in order to find that the trespass was not casual and involuntary there must be proof that defendants cut timber of plaintiffs, knowing the same to be plaintiffs’ land, and that they should not take into consideration the facts shown by plaintiffs as sufficient, if the jury believed them, to warrant them in finding that the trespass was not casual and involuntary.

The motion for a new trial was denied, and reasons therefor were stated in writing by the circuit judge. These were duly excepted to, and the questions involved were raised. The plaintiffs have brought the case here upon writ of error. There is a large number of assignments of error. Seven of them relate to alleged errors in the rulings of the trial court in the admission of evidence; ten of them relate to the refusals of the trial court to charge the jury as requested by plaintiffs’ counsel; six of them relate to the charge of the court as given; and the remainder relate to the questions raised by the motion for a new trial and reasons given for refusing the same.

The case was submitted to this court upon briefs, and the assignments of error relied upon by the plaintiffs were as follows:

Second assignment of error: In the cross-examination of the plaintiff’s witness Harris, he was asked the following question:

“Now, a good logging road that is built down through a creek bottom, through a tract of timber, adds to the value of it, instead of depreciating the value; isn’t that a fact?”

This was objected to on the ground that it was incompetent, irrelevant, and immaterial. The court permitted the question to be answered, and the plaintiffs duly excepted. The answer was:

“That would depend upon circumstances and whether the prospective landowner intended to log his land and how he intended to log it. It would also depend on whether there was a good logging road there or a poor one.”

The third assignment of error relates to the same subject, and the question arose in the cross-examination of the same witness where he was asked the following: .

“If you were sent out by your principal, Mr. Connor, to look over a tract of timber owned by Mr. Norris with the view of purchasing it to operate next winter, and you found right down through the center of that timber a good, wide logging road cut through, would you tell Mr. Connor that, in your opinion, it was a damage to the tract or a benefit?”

The same objection, ruling, and exception. The witness answered:

“I should tell my employer or whoever I was looking over that land for that the damage to that land would be the amount of the value of the timber that had been cut in the logging road, and I would expect him to pay for it.”

It is the claim of the appellees that under the holding of this court in Burtraw v. Clark, 103 Mich. 383 (61 N. W. 552), the ruling of the court was not erroneous. That was trespass for digging a drain, and defendant sought to show that the drain was a benefit, and it was held the defendant was entitled to make the showing. Whether erroneous or not, we are satisfied from the perusal of the record, and in view of the answers to the questions, that the rulings were not prejudicial to the plaintiffs; and the case should not be reversed unless it be found there was prejudicial error in the rulings of the court.

The fourth assignment of error relates to the question, asked the plaintiff Robert Connor upon his cross-examination:

“Q. Did you have any sinister motive in wishing to prevent those boys from transporting this timber out to the shore of Lake Superior?
A. What is that?
“Q. Did you have any sinister motive? Did you want to harass them or prevent them from marketing their timber?
“A. No.”

An exception was taken to these questions. The answers to these questions being in the negative, we do not see how the plaintiffs were prejudiced thereby, and we think there is no merit in this assignment of error. This witness was one of the plaintiffs, and considerable latitude should be allowed in the cross-examination of a party to ascertain whether his testimony was affected by his. interest.

The remaining assignments of error relating to admission of testimony, we think, do not require discussion.

The ninth assignment of error is based upon the refusal of the court to charge the jury as requested as follows:

“I charge you that, under the undisputed evidence in this case, there was a trespass committed by the defendants in this case upon the lands of the plaintiffs, being the west half of the northeast quarter and the north half of the southwest quarter of section 14 and lot 1 of section 10 in township 50 north of range 45 west, not only by the cutting and destroying of the timber, but also by the carrying away of the timber, that, under the undisputed evidence, timber to a considerable amount was cut upon said lands, and the same was carried away and converted by the defendants McRae to their own use by the sale thereof, and that because of this plaintiffs are entitled to recover against the defendants the value of the timber so cut, destroyed, and carried away. The evidence is undisputed that the timber which was so cut, destroyed, and carried away was made up of hemlock, maple, ash, basswood, birch, and cedar, and I charge you that, under the evidence in this case, there was on section 14, 82,860 feet of hemlock, 830 feet of maple, 2,780 feet of ash, 7,710 feet of basswood, and 380 feet of birch, and that on section 10 there was 2,090 feet of hemlock, 340 feet of maple, 120 feet of ash, 120 feet of basswood, 170 feet of birch, and 810 feet of cedar, and that in addition to this on section 10 and on what is termed the landing there was an estimated destruction of timber to the amount of 25,000 feet composed of hemlock, birch, and cedar.”

We have stated that the court charged the jury that under the undisputed evidence there was a trespass committed by the defendants upon the lands of the plaintiffs, leaving the amount of the trespass to be ascertained from the evidence. The request above set forth embraces the testimony of the plaintiffs’ witness Harris, who made an estimate of the timber taken from section 14 and lot 1 of section 10. The record shows that this testimony was not based upon an actual measurement of the timber cut and taken away from the plaintiffs’ lands. It consisted of an estimate by the witness on section 14, made by a measurement of the stumps and estimated length of the trees cut, in connection with an examination and measurement of their tops, making certain allowances for the jump of trees in falling; and this, at best, was but an estimate of the witness of the quantity of timber taken. It is no answer to say that it was the best evidence that could be produced upon the subject. There was other testimony tending to contradict the conclusions and estimate made by this witness, and we do not think that the court would have been warranted in giving this estimate to the jury as undisputed evidence of quantity in the case. The extent of the trespass on lot 1 of section 10 was still more inconclusive. The distance was about 40 rods from the lake shore to the boundary of lot 1 of section 10, over which the road was cut. A similar estimate was there made, and the quantity on the logging road ascertained was 3,650 feet. At the landing the timber had been cut away, many of the stumps dug up and removed, many of them not found, the quantity of land there, being about two acres, was ascertained by pacing, and the quantity of timber taken was estimated by comparison with other timber growing in the vicinity. This landing was near the mouth of the creek. The witnesses who examined it had never been there before, and had no knowledge of the quantity of timber originally standing thereon, and it was a matter of judgment only as to whether the amount of the timber there originally standing could be ascertained by comparison with other timber standing in the vicinity. Whether the standing timber was uniform in that vicinity was a question upon which the witnesses did not agree. We think the court did not err in refusing to give this request to the jury. The court did call the attention of the jury to all the evidence in the case upon the subject.

The remaining requests to charge relate to the subject whether this trespass was casual and involuntary, and the attention of the jury was challenged to certain testimony introduced by the plaintiffs in the case upon that Subject. Some of the requests refer specifically to section 10. As the finding of the jury was that the trespass upon section 10 was not casual and involuntary, but wilful, manifestly the plaintiffs were not prejudiced by the refusal to give these requests. Those relating to section 14 were refused by the court largely upon the ground that they laid special stress upon particular evidence and were argumentative, as stated by the court in its reasons for refusing to grant a new trial. The charge of the court followed very closely the law as laid down by this court in Michigan Land & Iron Co. v. Deer Lake Co., 60 Mich. 143 (27 N. W. 10, 1 Am. St. Rep. 491). This is conceded by plaintiffs’ counsel, but it is contended that the case just referred to is not the law upon the subject at the present time, and that the correct rule is that stated in Longyear v. Gregory, 110 Mich. 277 (68 N. W. 116), and Bockes v. A. McAfee & Son Co., 165 Mich. 7 (130 N. W. 313). A perusal of the charge, as given, satisfies us that the case was properly submitted to the jury upon all these questions. The court charged the jury, among other things, as follows:

“The burden of proof in this case is upon the plaintiffs to maintain their cause of action by a fair preponderance of the evidence. As I have said, there are some undisputed questions of fact. In view of the undisputed questions of fact, it becomes your duty to find a verdict in favor of these plaintiffs. The only question upon that point is as to the amount of damages; that is a disputed question of fact to be determined by you. There is a dispute in the evidence here as to what the damage is that these plaintiffs sustained. You will take all the evidence in the case and consider it fairly and dispassionately and arrive at your verdict as to what this testimony shows by a fair preponderance of the evidence is the amount of damage which these plaintiffs have sustained by reason of the trespass which the undisputed evidence in this case shows has been committed on the lands in question. * * *
“I charge you that, in determining the question of whether the trespass was casual and involuntary, this is an affirmative defense, and the burden of proof shifts to the defendants to show by a fair preponderance of the evidence that such trespass was casual and involuntary. * * *
“I charge you there must be some evidence in the case of wilfulness, wantonness, or evil design on the part of any defendant held liable under the statute for treble damages; that is, in order to hold that such trespass was not casual and involuntary, there must be some evidence in the case of wilfulness, wantonness or evil design upon the part of any defendant so held. In order to so hold defendants McRae for treble damages there must be evidence of wilfulness, wantonness or evil design upon the part of such defendants; and also in order to so hold defendant Francis there must be evidence of wilfulness, wantonness, or evil design upon the part of defendant Francis. Negligence alone is not sufficient to create liability in a case of this kind. Even if the defendants were negligent, that alone would not be sufficient to make them liable for treble damages; there must be active misconduct.
“Now, gentlemen, it appears from the evidence in this case that the trespass upon section 14 was committed while defendants McRae were logging the northwest quarter of section 14 in question, and that they had let a contract to defendant Francis to do this logging. The defendant Francis went there and started to do the logging in question, and it appears that while doing that logging on the portion of section 14 that he was to do the logging upon he went over the line and trespassed upon the land which belongs to the plaintiffs in section 14. In this connection I charge you that in trespassing upon the lands of plaintiffs in section 14, if defendant Francis honestly, believed he was on the lands of defendants McRae, then he cannot be held liable for treble damages for such trespass, nor can the defendants McRae be held liable for treble damages if they honestly believed that defendant Francis was. cutting upon their lands. * * * All of the defendants deny that they wilfully or intentionally committed any trespass. * * * __ It will be for you, under all the circumstances as disclosed by the testimony in this case, to arrive at yóur verdict and conclusion as to whether or not the defendants McRae or the defendant Francis, or either of them— whether or not this trespass so far as it applies to them was casual and involuntary. You will take Into consideration all of the testimony introduced upon that subject, gentlemen, and considering that testimony fairly and dispassionately, decide for yourselves whether or not the defendants McRae have by a fair preponderance of the evidence shown that the trespass which was committed was casual and involuntary on their parts, and also, with regard to Mr. Francis, you will consider all of the testimony and arrive at your conclusion as to whether or not the trespass which was committed was casual and involuntary on the part of Mr. Francis.”

We are of opinion that the charge of the court was warranted by the decision of this court in Michigan Land & Iron Co. v. Deer Lake Co., supra, and that the rule stated in that case has not been departed from by this court.

The case of Longyear v. Gregory, supra, was peculiar in its facts and circumstances. There the defendants, having a contract to lumber the southeast quarter of the northeast quarter of section 8 in a certain township, which it will be observed was a single 40, cut the timber not only upon that forty, but also from the southwest quarter of the northeast quarter,. which belonged to the plaintiffs.. It was. very apparent to the court in that case that having permission to cut upon 40 acres of land gave them no right to cut over 80 acres of land, and that they must have known that they were exceeding the acreage to which they were entitled, and this court said:

“Not only did the defendants cut the timber from the southwest quarter of the northeast quarter, which belonged to the plaintiffs, but they also cut it from the southeast quarter of the northeast quarter. An inspection of their bill of sale would have indicated to them that they had no right to cut the timber from, both of these 40’s. Neither would it require a great amount of experience in the woods to indicate they had no right to cut over 80 acres, of land when they had title to but 40 acres. The record also discloses that when Mr. Lewis, acting for the plaintiffs, visited them, a large quantity of posts cut from this land were still on the land; other portions of the timber were near by, on an adjoining description; and, after they knew the title to the lumber and timber was not in them, the defendants shipped it away, and appropriated the proceeds to their own use. It cannot be the law that no degree of care is required of one who goes on land to cut timber, or that he may recklessly, and without trying to ascertain the facts, cut and carry away timber, and then say that the owner, who may have wanted to keep his timber, must content himself by receiving as his damages only what the timber was worth on the land. It was to meet such cases as the one at i$sue that the statute was passed.”

In the instant case the defendants owned and had a right to cut upon the northwest quarter of section 14. By reason of the lines not being extended upon the east and south of this quarter section, and after making certain measurements by way of survey, they proceeded to cut, and in doing so cut over the lines upon the east and south. We think that under the evidence and questions submitted to the jury it was for them to say whether the trespass upon section 14 was casual and involuntary, or that the defendants had probable cause to believe that the land on which such trespass was committed was their own under the provisions of section 11205, 3 Comp. Laws (3 Comp. Laws 1915, § 13375).

Complaint is made by appellants because the court submitted the trespass on lot 1, section 10, and that on section 14 separately, and that one rule should govern the entire trespass. We think there was no error here. The defendants never claimed any rights on section 10. They knew they owned no timber there. While on section 14 they did own a quarter section. We think that the court properly submitted that question.

We agree with the circuit judge wherein he states in his reasons for refusing to grant a new trial that:

"The verdict was not against the weight of the evidence in any particular, either as to the trespass upon section 14 or in any other manner. The amount of the verdict upon each item was sustained by evidence in the case. This applies to the entire trespass. The newly discovered evidence is in no manner sufficient to justify the granting of a new trial.”

It is a sufficient answer to the question of newly discovered evidence to say that the affidavit of the proposed absent witness William J. Weston was not produced. As to what he would have testified to upon a new trial the court was not informed except by hearsay. The affidavit of Mr. Weston was not furnished in support of the motion, but merely the affidavits of the plaintiff and their counsel. They are hearsay, and were not proper affidavits on which to base an order for a new trial. Hammond v. Pullman, 129 Mich. 567-569 (89 N. W. 358).

An examination of the entire record in this case leads us to the conclusion that there was no prejudicial error upon the trial of the case, and for that reason the judgment of the court below should be and is affirmed.

Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


source: Caselaw Access Project

author: Stone, C. J.

license: Public Domain

text:
    MYERS v. MUSKEGON IMPROVEMENT CO.
    1. Limitation of Actions — Bills and Notes — Evidence—Indorsement of Payments.
    To establish, that an indorser of a promissory note consented to indorsements of small payments that were made through one of his firm, who were attorneys for the holder, it was not essential to prove his actual words or to show his consent in writing, but the consent and authority might be implied from his relations, circumstances and other facts having a bearing.
    2. Same — Knowledge—Payments.
    And the tolling of the statute of limitations was not applicable, nor did tlie statute cease to run, where another indorser was under obligations to apply payments on the collateral security to satisfy the note, but failed to carry out .the obligation during part of the time: it could not be said that the indorsers were voluntary trustees so as to interrupt the operation of limitation of action. The cause of action would be barred two years after it was discovered, under 3 Comp. Laws 1915, § 12330, relating to causes of action fraudulently concealed.
    Error to Muskegon; Sullivan, 3.

    Submitted October 18, 1916.
    (Docket No. 123.)
    Decided December 21, 1916.
    Assumpsit by Henry E. Myers and Edwin F. Holmes, administrators of the estate of John L. Woods, deceased, against the Muskegon Improvement Company, George L. Erwin and others upon a promissory note. Judgment for defendants. Plaintiffs bring error.
    Affirmed.

      Clapperton, Owen & Hatten (Stephen H. Clink, of counsel), for appellants.

      Hatch, McAllister & Raymond, for appellee Raymond.
   Stone, C. J.

This is the third appearance of this case in this court. It was begun by declaration filed March 24, 1908. When here first, it was reported in 169 Mich.' 689 (135 N. W. 949), and the second time in Myers v. Erwin, 180 Mich. 469 (147 N. W. 458). A reference to those opinions will render an extended statement of the case here unnecessary.

It is the claim of the defendant George L. Erwin, who alone defends in this case, that there is only one question involved in this appeal, and that 'is whether the payments on May 19, 1902, of $50, on February 20, 1904, of $82.23, and on December 20, 1905, of $15, prevented the running of the statute of limitations *as to the defendant, and it is claimed that, if none of these payments prevented the running of the statute of limitations as to him, the note is barred, since all the other payments were made more than six years before the commencement of the suit, and the statute of limitations was duly pleaded, and it is said that these payments would not keep the cause of action alive, unless they were made under such circumstances as to raise an implied promise on the part of George L. Erwin to pay the debt; that these payments were all made by David D. Erwin with money received for and upon the release of lots from the mortgages held as collateral to the note sued upon, and it is urged that George L. Erwin, as only one of two or more joint contractors, would not lose the benefit of the statute of limitations, so as to be chargeable by reason only of any payment made by any other or others of the joint contractors — citing 3 Comp. Laws, § 9745 (3 Comp. Laws 1915, § 12336), 5 How. Stat. [2d Ed.] § 14152.

The plaintiffs claim that, first, the defendant should be held to be equitably estopped from insisting upon his plea of the statute of limitations by reason of the confidential relations existing between the executors of the estate and David D. Erwin, who was acting for all of the defendants in the matter; and also, second, that the payments made upon the note by David D. Erwin, which he received from the collateral, should, under the circumstances of this case, be held to constitute a new promise, thus preventing the running of the statute. When this case was first before this court, plaintiffs asserted that the payments made upon the note by David D. Erwin, being the last three, of $50, $82.23, and $15 respectively, which he received from the collaterals, should, under the circumstances of the case, be held to constitute a new promise, thus preventing the running of the statute of limitations.

Upon the first trial in the court below, upon findings of the court, judgment had been entered for the defendants. This court held that, upon the record as it stood then, without the testimony of Thomas Hume or of the defendant George L. Erwin, the collateral notes and mortgages were originally given to George L. Erwin, trustee, for the five individuals who signed the note in suit, and he assigned them to John L. Woods; that the property, for which the notes and. mortgages were given, was the property of the five men, including this defendant; that the notes and mortgages themselves, though standing in the name of George L. Erwin, trustee, actually belonged to the same individuals; and that, subject to the assignment to Woods as collateral, they still owned them, so that, when any money was collected from any of them, it belonged to the five makers of the note, subject to the duty to pay it over to Woods, by reason of the assignments to him. After setting forth the circumstances relating to the payment of the Shaw Electric Crane Company notes and mortgage, and the substitution of the Mason mortgage therefor, Justice Brooke, speaking for the court, said:

“Under these circumstances, we are disposed to hold that when, on April 22,1901, David D. Erwin collected from one of the mortgages, which he and his four associates owned subject to the assignment as collateral to Woods, and forwarded the same to the executors to be applied upon the note, said payment should be considered as a voluntary admission by the defendants that the debt was then due, from which a new promise can and should be implied. At that time no payments had been made upon the note for nearly five years, but the correspondence shows that during the period frequent inquiries were made by and on behalf of the executors, which were responded to by David D. Erwin. On February 20, 1904, the firm of Smith, Nims, Hoyt & Erwin, by David D. Erwin, remitted to the executors a further sum of $82.23, collected from the same source, which was duly credited upon the note.”

The opinion concludes in this language:

“Our conclusion that the later payments indorsed upon the note (made under the circumstances indicated) serve to prevent the running of the statute renders it unnecessary to discuss the plaintiffs’ first proposition.”

That proposition was that the defendants should be held to be equitably estopped from insisting upon their plea of the statute of limitations by reason of the confidential relations existing between the executors of the estate and David D. Erwin, who was acting for all of the defendants in the matter.

When the case came before this court the second time from a directed verdict and judgment for plaintiffs, the record contained the testimony of George L. Erwin for the first time, and we held that that introduced into the case evidence of certain new facts, namely:

“That he was never a member of, nor connected with, the law firm of which David D. Erwin and F. A. Nims were members, and knew nothing about their transactions with John L. Woods, whom witness had never seen and did not know personally; that the Muskegon Improvement Company failed, turned over all its remaining property to trustees, held no more meetings, and went out of business in 1894, at which time he severed his connection with the concern; that he had been absent from Muskegon most of the time for 12 or 13 years and supposed the improvement company’s matters were all closed up; that he had no interest in the collateral given to secure the note in question, nor in any surplus which might arise therefrom after such note was paid; that he had no knowledge David D. Erwin made any collections on such collateral, or any payments on said note subsequent to 1894, and had never, directly or indirectly, authorized or consented to the payments in question.”

Justice Steere, writing the opinion, which was concurred in by all of the Justices, said:

“These were statements of fact not in the previous record. If they are true, the payments in question, made by David D. Erwin without appellant’s knowledge or consent, would not deprive the latter of claiming the benefit of the statute of limitations, which by his plea he has sought refuge under [citing the statute and decisions of this court]. There is evidence in this record, some of it documentary, tending to negative appellant’s testimony, but the conflicting testimony raised issues of fact in the case which were not for the court to decide in a jury trial, and which should have been submitted to the jury under appropriate instructions as to their legal significance and directions as to what verdict should be rendered according as the jury might determine the facts.”

And the judgment below was reversed and a new trial granted. The case has been again tried on substantially the same evidence and submitted to a jury, which returned a verdict for the defendant George L. Erwin, he alone contesting on that trial, and a judgment was entered accordingly.

A careful perusal of both of the opinions above referred to will show that the question whether the defendants should be held to be equitably estopped from insisting upon their plea of the statute of limitations, or whether there was any fraud, of which this defendant had notice, in dealing with the Shaw Electric Crane Company mortgage and notes, has never been disposed of by this court. Justice Steere, in the course of his opinion, simply disposed of the question whether, in view of the testimony of George L. Erwin, the payments made by David D. Erwin were binding upon George L. Erwin, and did not deal with the question of confidential relations or fraud.

Aside from the three assignments of error which relate to the admission of certain testimony, against the objection and exception of the plaintiffs, which'we do not think of sufficient importance to discuss, the remaining assignments of error relate to the failure to direct a verdict, and to give certain requests of plaintiffs to charge, and to the charge of the court.

A motion was made at the close of the evidence on the part of the plaintiffs for the direction of a verdict in their behalf, based upon the transactions connected with the Shaw Electric Crane Company mortgage and notes, to the effect that the defendant and his associates, after the assignment of that mortgage as collateral to secure the payment of the note sued'upon, collected considerable sums of money upon the notes of the Shaw Electric Crane Company, as appears by the books of the company, and that the testimony was undisputed that that money came into the hands of the defendant, and that no application was ever made of those moneys except as to one note; that those moneys, when the defendant and his associates collected them, were the moneys of John L. Woods; that when the defendant and his associates took those moneys into their hands in 1892 and 1893, and held them without application upon the principal note, they became the trustees of that fund in law, and that they have continued to hold it as such; that such moneys in their hands constituted a voluntary trust against which the statute of limitations did not run. This motion was denied, and exception duly taken, and the ruling is made the basis of the seventh assignment of error. .

The court was requested to instruct the jury as follows:

“(1) T charge you as matter of law that if, after the assignment of the Shaw Electric Crane Company mortgage to John L. Woods as collateral security for the payment of the note in question in this suit, the defendant and his associates collected payments from the Shaw Electric Crane Company thereon, it was the duty of the defendant and his associates to apply the same as payment upon the note in suit, and if such moneys were not so applied, but were retained by the defendant and his associates, and by them converted to their own use, the law will regard the defendant and his associates as trustees, and that such trust is a voluntary one, and the statute of limitations does not run in the case of a voluntary trust until the same is declared, or notice thereof given to the party to be affected, and in a suit like this the law will apply such moneys to the payment of the note in suit, at any date that it is found in the hands of the defendant, as equity and justice and fair dealing may require, and when such moneys are so applied in this suit, such application will prevent the running of the statute of limitations, so as to bar a recovery.’
“(2) ‘I charge you as matter of law that, under the undisputed facts established by the proofs in this case, your verdict must be for the plaintiff for the amount of the note of $5,000 and interest thereon.’ “If the foregoing are refused, then the plaintiff requests that the following may be given:
“(3) ‘I charge you as matter of law that it is not necessary, in order to show that George L. Erwin authorized and consented to the indorsements in question upon this note, to prove that he in words stated to anybody that he authorized it, or that he in words or writing stated that he consented to it. But the fact of his consent and authorization may be inferred by you from his relations to the business, from his conduct in connection therewith, from the character of his relations with his associates, and from all of the facts and circumstances in connection therewith as shown by the testimony in the case, if you believe that they warrant and justify that conclusion on your part.’
“(4) ‘It is your duty, in deciding the matters submitted to you by the court, to consider fully and fairly all of the testimony allowed to be introduced by the court, including that which is documentary, and give it such credit and force and effect as you believe that it is entitled to.’
“(5) T charge you as matter of law that, if the defendant George L. Erwin did know, or had good reason to know, that the payments in question were indorsed upon this note, and did not raise any objection, but acquiesced therein, that that is the equivalent of consent and authorization, and that he is, if you find such to be the fact, liable upon his indorsement, and your verdict should be for the plaintiff.’ ”

Upon that branch of the case relating to the payments of $50, $82.23, and $15, above referred to, an examination of the charge of the court satisfies us that the case was properly submitted to the jury.

The third request was given in full. The fourth and fifth requests were given in substance, and we do not think the plaintiffs were entitled to have the second request given. Neither do we think that the trial court erred in refusing to give the first request to charge. Had the payment of the Shaw Electric Crane Company notes been applied upon the note in suit, and had the same been reported and forwarded to the plaintiffs in 1892 and 1893, when collected, as plaintiffs claim should have been done, that would not have prevented running of the statute, for those notes were paid to defendants long before the payments that were reported and held to imply a new promise. In a suitable action, brought within two years after the plaintiffs discovered that they had a cause of action for the moneys so collected and converted, under the provisions of section 9739, '3 Comp. Laws (3 Comp. Laws 1915, § 12330), the plaintiffs might have recovered the amount of the two notes collected by defendants and not reported and paid over. But that is not this action. This is a suit upon the original note given by the defendants to Woods, and not for the moneys claimed to have been collected and wrongfully converted by them.

We do not think that the cases cited by plaintiffs’ counsel sustain their contention. The one claimed to be most in point is that of In re Lowerre, in surrogate’s court, reported in 48 Misc. Rep. 317, 96 N. Y. Supp. 764. There a mortgagor gave to an attorney money to pay a mortgage to a third person. The attorney receiving the money converted it to his own use, and for years continued to pay interest to the mortgagee. It was held that he became the attorney for the mortgagor, and, having misapplied the money, became indebted to him in the amount thereof, and, on the death of both, the executors of the mortgagor were creditors, and entitled to maintain a proceeding for the sale of the attorney’s real estate to pay the debt, and that, the attorney having paid interest on the mortgage debt, such payment of interest prevented the statute of limitations from running on the mortgage debt, and on the claim against the attorney’s estate for the conversion of the money, and was an acknowledgment on his part of the debt. The fact that the attorney had continued to pay the interest yearly to the mortgagee was the controlling fact in the case, and that in our opinion distinguishes it from the instant case.

It will be noted that there was no motion for a new trial, and the question whether the verdict was against the weight of the evidence is not before us.

Finding no reversible error in the record, the judgment below is affirmed.

Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    ANSTAYS v. ANDERSON.
    1. Waste — Injunctions—Life Estate — Reversion.
    In an injunction suit to prevent waste by a life tenant who attempted to move a dwelling and certain outbuildings on the inheritance, the proper test to apply was whether or not the acts proved essentially injured the property, as it would pass to the remainderman.

      2. Same — Removal of Buildings.
    Where the owner of the life estate moved a dwelling house that was not in bad condition back from the highway and located the house back about 35 rods on a foundation that he had constructed and had either, given away or removed certain outbuildings, filled in a cellar, or done other work that would tend to make it more convenient for his use, in connection with his other property, no question of permissive waste was involved: if liable at
    ' all, he was chargeable in such action for active or voluntary waste.
    3. Same — Joint Wrong — Statutes.
    Under 3 Comp. Laws 1915, § 14940, defining the action and enacting that they should be respectively liable in an action on the case, each life tenant is made liable for his own acts and a grantor would not be responsible for the acts of his successor in title by conveyance.
    4. Same — Right of Action — Accounting.
    The life tenant was liable in such action for damages and for an accounting and it was not a sufficient defense that he had rendered the property more valuable for some purposes than it was before, since the owner of the remainder was entitled to have the proprety turned over to him in the same condition as when the defendant received it.

      Appeal from Kent; Brown, J.
    Submitted October 10, 1916.
    (Docket No. 101.)
    Decided December 21, 1916.
    Bill by Ted B. Anstays and another against William H. Anderson and others to restrain the commission of waste and for an accounting. From a decree dismissing the bill, complainants appeal.
    Reversed, and decree entered for complainants.

      Lillie & Lillie (Lillie, Lillie & Lillie, of counsel), for complainants.

      Kleinhans, Knappen & Uhl, for defendant Anderson.
   Stone, C. J.

It appears that on June 21, 1906, John V. Hauser, one of the defendants, being the owner thereof, conveyed to his wife, Laura J. Hauser, a strip of land in Sparta township, Kent county, consisting of 10 acres, being 106 2/3 rods in length, and being bounded upon the north by the right of way of the Toledo, Saginaw & Muskegon Railway Company, and there being a highway on the east side thereof. In and by said deed the grantor reserved the possession and use of said land for and during his lifetime'. The grantee of said deed, Laura J. Hauser, having been in possession of said premises, died intestate on May 19, 1910, leaving surviving her, as her heirs at law, four children by a former husband, to wit, Eliza Wainwright, Lena Anstays Shoemaker, William H. Anstays, and Ted B. Anstays. On April 27, 1914, the said John V. Hauser conveyed his life estate in and to said premises above reserved to the defendant William H. Anderson. Mr. Hauser had lived upon the premises from the time of the death of his wife until his deed to defendant Anderson. He was 60 years old at the time he conveyed his interest in the premises to Mr. Anderson. Defendant Anderson owns a large farm just across the railroad right of way, and to the north of the Hauser property. He also owns 25 acres which adjoins the Hauser property on the south. This makes the Hauser .property lie directly between the two farms. At the time Mr. Anderson purchased the life interest of John V. Hauser, the following buildings stood upon the premises: A large two-story frame dwelling house, consisting of an upright and two-story wing, with German siding, with a natural stone, seven-foot basement under the whole house. The house stood upon a side hill about ten feet west from the main traveled highway, and three or four rods from the. fence of the railroad right of way upon the north. The basement had an outside door. There were seven or eight rooms in the house, all plastered and in fairly good condition. At the corner of the house stood a, dug cement well about eighteen feet deep. Near the house there was a structure used as a henhouse, with a shed roof. There was also a pigsty, and a barn, or a building that was used as a barn, which consisted of poles or small timbers stuck in the ground, which was sided up, and had a shed roof, and the main part-served the purpose of a barn for a few head of cattle and one or two horses, and whatever stock Mr. Hauser had. There was also a shed or lean-to where he kept his hay and buggy. It is claimed by the plaintiffs that at this time the dwelling was of the value of $700 or $800. The value of the outbuildings was in dispute, some witnesses claiming them to be worthless, and others placing small valuations thereon.

The testimony shows that, for some years prior to the conveyance to defendant Anderson of said life interest, this property had been used independently, as a small farm and home of the Hauser family. The house was located near a good highway, and back and west of the house there was a small orchard, consisting mainly of pear trees. The evidence shows that defendant Anderson, owning the lands upon both the north and south of these premises, desired to change the location of the dwelling house. It was not located where he thought it should be in connection with his other holdings. He therefore proceeded to move the house back about 35 rods into the field, and placed it within 6 to 10 feet of the fence of the railroad right of way, and it was standing in this condition upon blocks at the time of the filing of the bill of complaint and the issuance of the temporary injunction. In moving the house the plaster had fallen off the walls, the house was left out of plumb, and the doors would not close. Some of the siding had been torn off to fasten planks on in the course of moving, and one or more fruit trees had been removed for the purpose of placing the house. The chimney had been entirely torn down and piled on the floor in such a manner that it sunk the floor away from the walls around the mop-boards below the plaster. Mr. Anderson, stating that the outbuildings were worthless, gave the same to the defendant Hauser and a neighbor, and they had been entirely removed from the premises; no part of them remaining upon the property. The well at the corner of the house had been entirely filled up, and no trace of it could be found. The natural stone foundation under the house where it formerly stood and the cellar had been caved in and buried and filled over with dirt.

The bill of complaint was filed on or about August 22, 1914, and the condition of the property at that time was as above stated, and it remained in that condition until the following summer. In the meantime the defendants had appeared in the case, and a demurrer had been filed on the ground, among other things, of the nonjoinder of parties plaintiff. Thereupon the bill was amended by making William H. Anstays and Eliza Wainwright, the brother and sister of the plaintiffs, defendants. Very shortly thereafter both of these last-named defendants quitclaimed their interests to the plaintiff Lena Anstays Shoemaker, after which the demurrer was overruled and the defendant Anderson answered. The bill was later taken as confessed by the defendant John V. Hauser. In the summer following the filing of the bill, the defendant Anderson proceeded to put some repairs on the house at the point 35 rods from the highway, where it was standing in the field, at the time the bill was filed. He had the rooms in the house replastered, the house straightened up and made plumb, so that the doors opened and closed, a foundation placed under the upright part of the house and the wing, a basement placed under the upright part of the house, but not under the wing. The latter is a cement basement. The house was put in fair condition, and the ceilings and walls papered, the woodwork painted, and a new galvanized iron roof was put on the house, and it has been painted upon the outside. This was the condition of the house at the time the case was heard upon pleadings and proofs in November, 1915. The facts in the case as to the removal of this dwelling house by the defendant Anderson and the giving away and removal of the outbuildings are not much in dispute. The bill alleges that the defendant Hauser removed the outbuildings personally, but the undisputed evidence in the case is that the same were removed after Mr. Anderson became the owner of the life estate, and by his consent. The defendant Anderson, who was examined by the plaintiffs under the statute, admitted that he caused the stone where the foundation was to be covered up, and knocked the walls in far enough, so that he could scrape over them and have plenty of room to plow without hitting stone. He also stated, in testifying, that when he moved the house he had in mind using it for a tenant who was looking after his own property, and that was what he moved it back there for. The court below dismissed the bill of complaint, and plaintiffs have appealed.

There is much discussion of the legal propositions involved in the case by counsel for both plaintiffs and defendant Anderson. The meritorious question is: Has there been actionable waste committed? The proper test in all such cases seems to be: Do the acts proven essentially injure the inheritance as it will come to the reversioners? Abel v. Wuesten, 141 Ky. 766 (133 S. W. 774); Id., 143 Ky. 513 (136 S. W. 867), reported in Am. & Eng. Ann. Cas. 1912C, 389, and see note.

There is no evidence in the case to show any material change in the neighborhood where this property is located during the last 20 years, except in the fact that Mr. Anderson had become the owner of lands upon both sides of these premises, and that he desired to use the whole as one property in connection with his farming enterprise. The adjacent properties are used for farming purposes, and it is practically a country location.

We think that, under the pleadings and evidence, there is not presented in this case any question of permissive waste on the part of the defendant Anderson. If liable at all, he is liable for what is termed voluntary, active waste, by reason of what he did in connection with the dwelling house and outbuildings; and we think that no case of waste was made out here as to the defendant John V. Hauser. He, at the time the bill was filed, had sold all of his interest in the premises and was out of possession. We think that our statute makes each life tenant in possession liable only for his own acts. 3 Comp. Laws, § 11116, and see compiler’s note (3 Comp. Laws 1915, § 14940); also, Beers v. Beers, 21 Mich. 464-469.

We think that in disposing of this case we should consider the quality and condition of the estate and property at the time defendant Anderson became the owner of the life estate of Hauser, the nature and condition of the property, and the relation of it to other property in the vicinity.

It is the claim of the defendant Anderson that, by the changes which he has made, he has improved the condition and value of the premises. That the same may be more valuable to him in connection with the use which he wishes to make of it and the adjoining property, is not the controlling question in the case. We are impressed with the claim of the plaintiffs that they have the right to have this property restored to them at the expiration of the life estate, substantially in the same condition it was in when Anderson took possession of it. The question whether voluntary, active, destructive waste has been committed here by the conduct of defendant Anderson becomes, in our opinion, one of fact. This is not a case where there had been any changed condition of surroundings which deprived this property of its value as a single holding, or small farm, so as to bring the case within the doctrine of Melms v. Brewing Co., 104 Wis. 7 (79 N. W. 738, 46 L. R. A. 478), cited by defendants’ counsel, and other kindred cases.

We do not recognize the right of Mr. Anderson, as life tenant, to make material changes or alterations in the buildings to suit his taste or convenience, merely. In our opinion there is evidence in the case to warrant the conclusion that the removal of this dwelling house from near the highway, where it was originally built, a distance of 35 rods back from the highway into the field, and in close proximity to the railroad right of way, was a damage and waste to the estate of plaintiffs as reversioners, and that it would be a damage to any persons who desired to use the property for the purposes for which it was originally used, as it seems to be adapted for use as a small farm located in the country near the village of Sparta, and within a few miles of the city of Grand Rapids. Such property has a peculiar value as a small holding, and we think the plaintiffs have the right to have the property turned over to them in the condition it was when defendant Anderson received it, and that it is no answer to say that the defendant has improved the condition of the dwelling house, and that it is more valuable to him in its present condition in connection with his other holdings. We are not unmindful of some testimony in the record of witnesses who testified that the property was more valuable as a separate holding, with the dwelling house 35 rods back from the road upon a narrow strip of land, necessitating at least a driveway, if not a lane, in order to reach it, and being placed within a few feet of the railroad right of way. Such testimony does not appeal to us as reasonable, and we think the conduct of the defendant Anderson amounted to a destructive waste; and that at the time the bill was filed plaintiffs were entitled to the temporary injunction which was granted to them; and that, when the defendant made the material change which he did in the nature and character of the premises, it cannot be justified upon the theory that for some purpose it is more valuable to him. Brock v. Dole, 66 Wis. 142 (28 N. W. 334).

The weight of authority seems to be to the effect that, where an injunction to prevent future waste is asked for and granted, a court of equity, to prevent a multiplicity of suits, may also decree an accounting and satisfaction for waste already committed. 40 Cyc. p. 524, and cases there cited; Dawson v. Tremaine, 93 Mich. 320, 322 (53 N. W. 1044); Duncombe v. Felt, 81 Mich. 332 (45 N. W. 1004); Stevens v. Rose, 69 Mich. 259 (37 N. W. 205); Heliker v. Heliker, 184 Mich. 657-661 (151 N. W. 757); Stroh v. O’Hearn, 176 Mich. 164 (142 N. W. 865).

There is considerable conflict in the testimony in the case as to the value of the outbuildings which were of a somewhat temporary character, and more or less dilapidated, also as to the value of the well; and there is also a great difference of opinion in the testimony of witnesses as to what it would cost to replace and restore the dwelling house to its original position and condition. We have endeavored to take a reasonable view of the testimony, some of which is more or less exaggerated, and have reached the conclusion that the plaintiffs are entitled to relief in the case, and that their damages, by reason of the removal of the dwelling house, the destruction of the outbuildings and well, should be fixed at the sum of $300. A decree for that amount will be entered for the plaintiffs as their interests appear, and against the defendant Anderson, with execution therefor and costs to be taxed, and the temporary injunction will be made permanent, as prayed for in the bill of complaint.

The decree of the court below will be reversed, and one entered in this court -in accordance with this opinion.

Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


author: Ostrander, J.

text:
    PEOPLE v. HUMPHREY.
    1. Constitutional Law — Intoxicating Liquors — Statutes—Title —Practice of Medicine.
    Act No. 261, Pub. Acts 1911, amending Act No. 207, Pub. Acts 1889, known as the local option law, without amending its title, providing that any physician who prescribes any intoxicating liquors for any person who he knows or has good reason to believe intends to use them as a beverage, or without a diagnosis showing that liquor is indicated, shall be guilty, is not unconstitutional; its object to prohibit the sale and furnishing of intoxicating liquors as a beverage being expressed in the title; and it is not open to the objection that it will interfere with, or regulate, the practice of medicine.
    2. Intoxicating Liquors — Criminal Law — Evidence—Intent.
    In the prosecution of a physician for violation of Act No. 261, Pub. Acts 1911, amending the local option law, by prescribing whisky for a person he had good reason to believe intended to use it as a beverage, evidence of the frequency and ease with which the prescriptions were secured was competent as indicative of the mental attitude of the accused.
    3. Criminal Law — Admissions—Confessions—Evidence.
    Respondent’s remarks to the prosecuting attorney, at the time of his arrest, that “I guess I am in wrong so far as this fellow H. is concerned,” and expressing a desire to get rid of the matter as quickly as he could, and that he “didn’t want it in the papers,” was not a confession or an admission of guilty knowledge or belief.
    4. Same — Instructions—Character Witnesses.
    Instructions by the trial judge denying to respondent the benefit of proof of good character for the purpose of creating a doubt of his guilt, must be regarded as a miscarriage of justice. People v. Jassino, 100 Mich. 536.
    5. Same — Statutes—Error Without Prejudice.
    Nor can it be said that such instruction was error without prejudice, bringing it within the provisions of Act No. 89,.Pub. Acts 1915.

      6. Same — Trial—Miscarriage oe Justice.
    It must always be regarded, as a miscarriage of justice when the trial court affirmatively denies to a respondent the benefit of an elementary rule favorable to him, upon Which, by the giving of testimony which invokes the application of the rule, he relies.
    Exceptions before sentence from Ingham; Collingwood, J.
    Submitted October 16, 1916.
    (Docket No. 170.)
    Decided December 21, 1916.
    James A. Humphrey was convicted of violating the local option law.
    Reversed.

      Grant Fellows, Attorney General, and William C. Brown, Prosecuting Attorney, for the people.

      Warner & Raudabaugh, for respondent.
   Ostrander, J.

Respondent, a physician, is charged with having prescribed,* February 16, 1915, a quart of whisky for one Hugh Carpenter, then and there having good reason to believe that said Carpenter intended to use the whisky as a beverage, in whole or in part, contrary to the provisions of a certain resolution adopted by the board of supervisors of Ingham county pursuant to Act No. 207, Pub. Acts 1889, as amended (2 Comp. Laws 1915, § 7080 et seq.), said liquor having been prescribed—

“as aforesaid, by said James A. Humphrey in violation of Act No. 207 of the Public Acts of the State of Michigan for the year A. D. 1889, as amended, and contrary to the form of the statute in such case made and provided.”

The information was filed. September 27, 1915, and respondent, arraigned, stood mute. His counsel moved to quash the information and discharge the respondent for the reasons;

“(1) That there is no crime charged against the said James A. Humphrey in said information known to the laws of the State of Michigan.
“(2) That Act No. 207 of the Public Acts of 1889, as amended by Act No. 261 of the Public Acts of 1911, is unconstitutional and void;
“(3) That Act No. 207 of the Public Acts of 1889, as amended by Act No. 261 of the Public Acts of 1911, under which the offense in said information is charged, is unconstitutional and void, in that said act as amended contains more than one subject.
“(4) That the offense charged in said information is not expressed in the title of said act as amended."

The motion was overruled. The people were permitted, over objection, to introduce in evidence other prescriptions, and the witness Carpenter was required to answer the question:

“I will ask you whether Dr. Humphrey has given you a prescription for liquor for any one else on February 16th?”

Respondent introduced evidence of his good character, upon which subject the court advised the jury, wrongfully, it is claimed, as follows:

“In this matter the respondent placed in evidence his good character. Now, a man’s character is a valuable asset under all circumstances; and is proper evidence to be considered in doubtful cases to determine whether or not a man having that good character would commit such an offense. It often avails, and should avail, to acquit a man under such circumstances; but that when there is positive proof of the commis-, sion of an offense, the good character cannot avail to overthrow that proof. That means just what it says.”

A motion to direct an acquittal was refused. The points indicated are presented and argued in this court.

The title to Act No. 207, Pub. Acts 1889, is:

“An act to prohibit the manufacture, sale, keeping for sale, giving away or furnishing of vinous, malt, brewed, fermented, spirituous or intoxicating liquors, or any mixed liquor or beverage, any part of which is intoxicating, and to prohibit the keeping of any saloon or other place for the manufacture, sale, storing for sale, giving away or furnishing of such liquors or beverages, and to suspend the general laws of the State relative to the taxation and regulation of the manufacture and sale of such liquors in the several counties of this State under certain circumstances; to authorize the qualified electors of the several counties in this State to express their will in regard to such prohibition by an election, and to authorize and empower the board of supervisors of the several counties, after such election, if they shall determine the result to be in favor of such prohibition, to prohibit the manufacture, sale, keeping for sale, giving away or furnishing of any such liquors, or the keeping of a saloon' or any other place for the manufacture, sale, storing for sale, giving away or furnishing of the same within their respective counties; and to provide for penalties and rights of action in case of its violation.”

The act contains 24 sections. By Act No. 183, Pub. Acts 1899, various sections were amended and a new section, 25, was added. A further amendment was made by Act No. 170, Pub. Acts 1903, and still further amendments, adding 14 sections, were made by Act No. 107, Pub. Acts 1909. Lastly, Act No. 261, Pub. Acts 1911, amended section 26, added in 1909, in the particular here in question. The amendment inserted in section 26 (2 Comp. Laws 1915, § 7104) the words:

“And any physician who prescribes any of the liquors hereinbefore mentioned for any person who he knows or has good reason to believe intends to use them in whole or in part as a beverage or in any other manner contrary to the provisions of this act or without a diagnosis showing that liquor is indicated shall be guilty * * *.”

This amendment followed the decision of this court in People v. Rice, 161 Mich. 657 (126 N. W. 981), and was referred to in People v. Bell, 170 Mich. 675, 682 (137 N. W. 107).

The argument for respondent is that this amendment introduced new subject-matter into the statute, made that an offense which was not before an offense, attempted to regulate the practice of medicine, and subjected physicians, under certain circumstances, to a penalty, of none of which matters the title gives notice. Reference is made to Grosvenor v. Duffy, 121 Mich. 220 (80 N. W. 19); Young v. Moore, 162 Mich. 60 (127 N. W. 29); McCabe v. Burnside Township Board, 181 Mich. 683 (148 N. W. 197); People v. Quider, 183 Mich. 82 (149 N. W. 1); People v. Blumrich, 183 Mich. 133 (149 N. W. 1040); Vernor v. Secretary of State, 179 Mich. 157 (146 N. W. 338, Am. & Eng. Ann. Cas. 1915D, 128).

It is clear that the object — the single object — of the amendment is to prohibit the sale and furnishing of intoxicating liquors to be used as a beverage; equally clear that that is the object of the'law. This object is expressed in the title. It is not apparent how the •enforcement of the law as amended will at all interfere with, or regulate, the practice of medicine. -

The prosecution presented three witnesses, Carpenter and Burr and Champney, the respondent none except character witnesses. The testimony for the people tended to prove that respondent was a physician, practicing his profession in Lansing, that Carpenter, who gave his name to the doctor as Hughes, visited him at his office upon various occasions, namely, October 15, November 24, December 2, December 6, December 15, December 28, and December 31, in the year 1914, January 5, 14, 18, 30, February 2, 3, 11, 15, 16, 1915, upon each of which occasions he secured from him a prescription for two pints of whisky, each time except the last for C. A. Hughes, the last time for C. H. Hughes. Directions in the first prescription were, “Tablespoonful in hot water three times a day,” in the others, “As directed for stimulant.” Carpenter represented that he had a cold, and upon one or more occasions he complained of nervousness. No examination of Carpenter was made by the doctor. Oral directions were to make a hot drink and take it once a day before going to bed, quantity not specified. Nor did the doctor inquire how much the patient took in hot water before going to bed. The witness Burr called the doctor by telephone, and asked him to give a prescription for himself to Carpenter when Carpenter called. Burr had before then seen the doctor, talked with him about an ailment, the nature of which is not disclosed, but had not been examined by him at any time. This was on February 16, 1915. Carpenter told the doctor that Burr was busy, and wanted him to call for it. This was likewise for two pints of whisky. He wrote and gave to Carpenter in January one or two similar prescriptions for Burr. After his arrest the respondent said to the prosecuting attorney, “I guess I am in wrong so. far as this fellow Hughes is concerned,” and expressed a desire to get rid of the matter as quickly as he could, and “didn’t want it in the papers.”

The question for the jury (no one disputing the fact that the prescriptions were given by respondent) was whether, upon the particular occasion, respondent gave the prescription for a person he knew, or had good reason to believe, intended to use the liquor, in whole or in part, as a beverage. It involved the mental attitude of the respondent, his knowledge, his information. Carpenter, a young man of 25 years, a stenographer, represented that he had a cold, lived at the Hotel Wentworth, and upon his first visit said that he wanted a quart of whisky. No one would deny that if he had repeated the representation daily, securing a prescription for a half gallon of whisky each day, it would be some evidence that he or some one else was using it as a beverage. He did not so often secure a prescription, but often enough so that a jury might be satisfied beyond doubt that the doctor knew it was not procured for medicinal purposes. And as indicative of his mental attitude, it was competent to prove, not only the frequency of the applications made by Carpenter, but the ease with which another, by telephone, secured a prescription for a like amount of liquor. See People v. Rice, supra.

Respondent preferred no request to charge upon the subject of the effect to be given to the testimony of character witnesses. Nor after the charge was delivered was the attention of the court attracted to the necessity for saying more than had been said upon the subject. The charge is like the one commented on in People v. Jassino, 100 Mich. 536 (59 N. W. 230). It was said (page 537) :

“By the instruction above quoted the respondent was denied the benefit of proof of good character if the jury should find positive evidence tending to show the commission of the offense. Evidence of good character is admissible, not only in a case where doubt otherwise exists, but may be offered for the purpose of creating a doubt.”

It remains to be seen whether a distinction between the two cases may reasonably be drawn, or whether, for any reason, the faulty charge may be regarded as nonprejudicial to respondent. Six witnesses were called who each testified to an acquaintance with respondent extending over a period of years, and, in substance and effect, that his reputation as a physician and for honor and integrity is good. Some of them added “morality” to the virtues which he, by reputation, possesses. It is suggested upon the part of the people that the nature of the case is such that the character evidence would not raise a doubt in the minds of jurors concerning the mental attitude of respondent upon the particular occasion, he being charged with doing something prohibited, the doing of which, upon occasion, would not be likely to affect his general reputation. it is said, further, that it is a case for applying Act No. 89, Pub. Acts 1915 (3 Comp. Laws 1915, § 14565), and for refusing to set aside the verdict because it does not affirmatively appear that the error complained of has resulted in a miscarriage of justice.

If what 'respondent said after his arrest, to the prosecuting attorney, could be regarded as a confession or admission that he knew or believed that the liquor was to be used as a beverage, the error in the charge would be regarded as error without prejudice, and a finding that there had not been a miscarriage of justice would be warranted. But it was not a confession or an admission of guilty knowledge, or belief, It must be always regarded as a miscarriage of justice when the trial court affirmatively denies to a respondent the benefit of an elementary rule favorable to him, upon which, by the giving of testimony which invokes the application of the rule, he relies. This case and People v. Jassino, supra, cannot be distinguished. See, also, People v. Laird, 102 Mich. 135, and note (60 N. W. 457); People v. Van Dam, 107 Mich. 425 (65 N. W. 277); People v. Parker, 166 Mich. 587 (131 N. W. 1120); People v. Wilson, 170 Mich. 669 (137 N. W. 92, 41 L. R. A. [N. S.] 216).

It follows that the conviction must be set aside, and a new trial granted.

Stone, C. J., and Kuhn, Bird, Moore,. Steere, and Brooke, JJ., concurred. Person, J., did not sit.