text:
    REED v. PEACOCK.
    1. Jury — Members or Fraternity — Challenge.
    That a juror is a member of the same fraternal organization,, but not of thé same lodge, as plaintiff, who sues as assignee of-his lodge, is not ground for challenge.
    2. Same — Non-Taxpayers—Talesmen.
    It was error to excuse a talesman because he was not a taxpayer, where there was no showing that he did not possess the-necessary qualifications of an elector.
    Error to Ionia; Davis, J.
    Submitted February 1,1900.
    Decided March 6, 1900.

      Assumpsit by Thomas H. Reed against Benjamin C. Peacock and Jesse Peacock for rent. From a judgment reversing, on certiorari, the judgment of a justice-, of the peace, defendants bring error.
    Affirmed.

      B. A. Hawley, for appellants.

      W. O. Miller, for appellee.
   Long, J.

This action was commenced in justice’s court to recover an alleged balance due on a certain lease entered into between the West Sebewa Lodge of Odd Fellows and defendants, which lease had been duly assigned by the-said lodge to the plaintiff. The defendants pleaded the general issue, and gave notice of recoupment. The plaintiff was a member of the West Sebewa Lodge of Odd Fellows. The defendants demanded a jury. Six jurors were selected for such jury in the usual way; that is, the officer wrote down the names of 18 persons to serve as jurors, and each party struck' off 6. The six jurors remaining constituted the jury so strupk. Two of the persons so selected were not found by the officer, and he summoned talesmen to fill their places. The jury thus present were sworn on their voir dire, and on examination it was ascertained that one of the original jurors, Lyman Shumway, and one of the talesmen, Carl Servos, were Odd Fellows; not, however, belonging to the West Sebewa Lodge, but belonging to the lodge in the city of Ionia. They were challenged by counsel for defendants for that cause, and the challenge held good by the justice. The plaintiff then exercised two peremptory challenges upon talesmen summoned by the officer, and the defendants also exercised two peremptory challenges upon tales-•men summoned by the officer; after which other talesmen were summoned by the officer, and the plaintiff peremptorily challenged one more of them, but this challenge was denied on the ground that the plaintiff had exhausted his peremptory challenges. The cause was then tried by the jury, three of whom were of those originally struck and three talesmen. The jury returned a verdict in favor of defendants. The plaintiff removed the cause to the circuit court by certiorari. The justice, in his return to the writ of certiorari, says that he excused Lyman Shumway from serving on the jury for the reason that he announced that he was an Odd Fellow; that he excused Carl Servos because he was also an Odd Fellow, and was not a taxpayer. The circuit court reversed the judgment of the justice, and the defendants bring the case to this court by writ of error.

It is well settled that one of the regular panel of jurors in justice’s court cannot be excused on a peremptory challenge. Eldridge v. Hubbell, 119 Mich. 61 (77 N. W. 631). The justice, however, returned that he excused both Shumway and Servos because they were Odd Fellows. It appeared that they did not belong to the same lodge of Odd Fellows that assigned the account to plaintiff. The fact of their being Odd Fellows did not disqualify them from sitting as jurors in the case. It was held in Purple v. Horton, 13 Wend. 9 (27 Am. Dec. 167), that it was no cau§e of challenge to a juror that he was a Free Mason, when one of the parties to a suit was a Free Mason and the other not. It was said by the court, in speaking of the rule which the defendant claimed would exclude such a person:

“This rule would exclude every stockholder in the same bank, every member of the same church, and every associate of the same benevolent society.”

In Delaware Lodge No. 1, I. O. O. F., v. Allmon, (Del. Super.) 39 Atl. 1098, it was held that, in an action against a subordinate lodge of a beneficial society, members thereof are disqualified as jurors, but that disqualification does not extend to members of other lodges. In Barton v. Erickson, 14 Neb. 164 (15 N. W. 206), it was held that a person who belongs to a religious denomination — as the Lutheran — is not thereby precluded from sitting as a juror in a case where a church organization of the same denomination, of which he is not a member, is a party.

The justice also returned that he excused Servos because he- was not a taxpayer. Servos was called as a talesman, and it was error for the justice to excuse him for the reason that he was not a taxpayer. He was summoned as a talesman, and there was nothing to show that he did not possess the necessary qualifications of an elector. People v. Wright, 89 Mich. 70 (50 N. W. 792).

By the course takén by the justice, the defendants were, in effect, given four challenges, against the objection of the plaintiff. The court below very properly reversed the judgment of the justice.

The judgment of the circuit court must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    KEEN v. DETROIT ELECTRIC RAILWAY.
    Street Railways — Transfers — Ejection of Passenger — Actions.
    A passenger on an F.-avenue street oar, who was given a transfer stamped as good on “ C.” cars only, cannot recover damages against the company for the refusal of a conductor on a “B.” car to accept the transfer, and his ejection of plaintiff from such car, though transfers from the F.-avenue line had theretofore been good on both cars; the transfer, as between the last conductor and "the passenger, being conclusive against the latter’s right to travel on “B.” cars, and his remedy, if any, being for the failure of the first conductor to furnish a proper transfer.
    Error to Wayne; Hosmer, J.
    Submitted February 2, 1900.
    Decided March 6, 1900.
    Case by Williston A. Keen against the Detroit Electric Railway for an alleged wrongful ejection from a street car. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      John Cr. Hawley, for appellant.

      Corliss, Andrus & Leete, for appellee.
   Long, J.

Plaintiff, on September 13, 1897, took one of defendant’s cars at the Chamber of Commerce in Detroit to ride up to the corner of Fourteenth and Warren avenues, to go thence east on Warren avenue. He had been in the habit of going this way for some time, and had always been furnished with a transfer east on Warren. On the day in question he took a transfer east on Warren, and tendered it to the conductor of that car, who refused to take it, as it was a ticket good on the Cross-Town cars only, and was so marked. While on the Fourteenth-avenue car, he had asked for a transfer east on Warren, and received this transfer. It appears that, on Sunday preceding, the defendant company had changed its regulations, and gave transfers east on Warren good on the Cross-Town cars only, and not good on the cars marked “Belt.” The car the plaintiff got on was marked “Belt,” and therefore the conductor refused to honor the transfer presented, and ejected the plaintiff from the car. The plaintiff testified to the ejection as follows:

“He [the conductor] said it should have been punched to be good for his car; it should have been punched ‘ Car to Car. ’ Then he went on to explain the reason why. He said that the Fourteenth-avenue line and the so-called ‘Old Fourteenth’ or ‘Belt’ lineup Fourteenth were one line, and, to have a transfer valid on that line, it should have been punched ‘Car to Car.’
“0- He was perfectly polite in his explanation, was he not?
“A. Yes, sir.
“Q. Gentlemanly?
“A. Gentlemanly at the time — at that time that he was explaining it to me.
“Q. And what did you say to him then?
“A. I told him I was not going to pay any other fare; I was going over to Lincoln on that transfer.
“Q. All the time this conversation was going on, the car was proceeding east? Almost had reached your street, had it not ?
“A. No, sir.
“Q. How far was it from there?
“A. Three long blocks.
‘ ‘ Q. From where ?
“JL From Lincoln avenue.
“Q. From Lincoln avenue to what street?
“A. Avery avenue. I think Avery avenue is about 750 feet from Lincoln avenue. The conductor said I would either have to pay my fare or get off the car and walk. I kept on arguing right along that it was an injustice that that transfer was no good. He said: ‘ That will do you no good. You will only make complaint at the office that may result in my being laid off or losing several days’ pay. ’ I said that I did not want him to lose several days’ pay; I had nothing against him. He was trying to prevail on ine to pay my fare or get off the car, and I was trying to persuade him to take the transfer.
“Q. Now, what did he do? You say he put you off the car. What did he do ?
“A. He had his hand on the bell-rope when this woman got on, and he stood there, and he touched me on the shoulder, and he says, ‘You will either have to pay your fare or get offand I got up and got off.
“Q. He touched you on the shoulder?
“A. Yes, sir, or on the coat-sleéve; and told me I had to get off the car; waited there until I got off. And I walked the rest of the way home.”

It appears that the next day the plaintiff took the car marked “Belt,” and made no transfer, as the route of that car was up Fourteenth and east on Warren. The day after that, however, he took the Fourteenth-avenue car again, and asked for a transfer east on Warren. He did not specify what car it was for, and the conductor gave him a transfer on a “Cross-Town” car. He got on a “Belt” line car. He says:

‘ ‘ I knew at the time I got on that car that, if the rule that I had been informed about two days before was enforced, that the transfer would not be accepted. * * * I did not expect to be put off, because I was going to ride right through. I was going, to bull it through, that is the reason why. * * * I told the conductor that he would have to put me off. He took me by the shoulder, took me to the car door, helped me down the steps, and then walked to the back end of the car, inside. He put his hand on the top of my shoulder, and I walked out.”

On the trial in the court below the court directed the verdict in favor of the defendant. Plaintiff brings error.

The court below was not in error. The declaration counted upon the wrongful act of the conductor on the Warren-avenue car in ejecting him from that car while he held a transfer giving him the right to be carried east on Warren avenue; that is, the plaintiff sued for damages sustained by reason of his not being carried according to his contract, and not for the breach of the first conductor in not furnishing him with the proper ticket. It appeared by the evidence that his transfer, on its face, did not entitle him to ride on the Belt car which he entered, but was good only on a Cross-Town car. He did not take a Cross-Town car. The transfer ticket did not entitle him to ride on that car. In Frederick v. Railroad Co., 37 Mich. 345 (26 Am. Rep. 531), it was said:

“ There is but one rule that can safely be tolerated with, any decent regard to the rights of railroad companies and passengers generally. As between the conductor and passenger and the right of the latter to travel, the ticket produced must be conclusive evidence. ”

See, also, the case of Thomas v. Railway Co., 72 Mich. 355 (40 N. W. 463).

The judgment below must be affirmed.

The other Justices concurred.


text:
    STATE BANK OF ELDORADO v. MAXSON.
    1. Actions — Nonresidents—Jurisdiction—Attachment.
    Under 3 Comp. Laws 1897, § 10555, providing that a creditor may proceed by attachment against his nonresident debtor in the circuit court of any county where the property of the debtor may be found, a circuit court has jurisdiction of an action by one nonresident against another, personally served, attaching the real property of the latter situated in the county, though the action is based on a contract originating and performable in another State.
    2. Conflict of Laws — Liability of Married Women — Enforcement.
    Under the laws of Kansas, the separate estate of a married woman is liable for the payment of her promissory note, though the only consideration for the note was a credit extended to her husband; and such liability may be enforced in an appropriate action at law.
    3. Same — Wife’s Separate Estate.
    2 Gen. Stat. Kan. 1897, chap. 123, § 17, which declares that any woman who shall have married out of the State shall, if her husband afterward becomes a resident of the State, enjoy all the rights as to property which she may have acquired by the laws of any other State, does not preclude a Kansas creditor from enforcing, by attachment of property in this State, the liability of a Kansas debtor, a married woman, upon a note which, though good under the laws of Kansas, would be ineffective, if given in this State, to bind her separate property.

    Error to Hillsdale; Chester, J.
    Submitted February 2, • 1900.
    Decided March 6, 1900.

      Assumpsit by the State Bank of Eldorado, Kansas, against L. I. Maxson, impleaded with A. C. Maxson and others, upon a promissory note. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Grant Fellows and Bert D. Chandler, for appellant.

      Frankhauser & Cornell (F. A. Lyon, of counsel), for appellee.

       As to the enforcibility of contracts of married women outside of the State in which they are legally made, see note to Ruhe v. Buck, (Mo.) 35 L. R. A. 178.

   Long, J.

The parties to this cause all reside in the State of Kansas. The action was commenced in this State by, writ of attachment. The property attached consisted of the undivided half interest of defendant Isabella Maxson in a certain 80 acres of land in Hillsdale county. The writ was served personally on her. The other defendants were not served with process. The action is upon a certain promissory note reading as follows:

“$2,000. Eldorado, Kansas, Oct. 7, 1897.
“Thirty days after date, for value received, we promise to pay to the order of the State Bank of Eldorado, Kansas, two thousand dollars, with interest from maturity until paid at ten per cent, per annum; interest payable annually, and, if not paid annually, each installment thereof, when due, shall he added to and become a part of the principal, and thenceforth draw the same rate of interest. Each of the several makers and indorsers hereon hereby expressly agrees that the holder of this note may, at the instance of any maker hereof, and without notice to any other maker or indorser, make a valid agreement to extend the time of payment of this note, or any part thereof, for any period or periods not exceeding one year from maturity,’ said makers and indorsers hereby consenting to and approving of the same, and expressly waiving any defense by reason thereof. The indorsers hereon expressly waive protest and notice of protest of this note.
“A. C. Maxson, Jr.
“Maude Maxson.
“A. C. Maxson.
“L. I. Maxson.”

It was shown on the trial that the defendant Isabella Maxson (L. I. Maxson) signed the note with her husband, A. C. Maxson; that it was not given for her debt, but solely for a debt of the husband; that none of the money received was used in and about her separate estate, and was in no wise for her benefit. The lands sought to be reached by these proceedings came to her by descent under the laws of this State. She was a married woman at the time she signed the note in controversy.

The married woman’s act of the State of Kansas and several Kansas decisions were put in evidence by the defendant. The court below held, and so directed the jury, that the defendant Isabella Maxson was liable on the note, unless they found that the note had been paid. He further instructed them that :

“This note is a Kansas contract, and is governed by the laws of the State of Kansas. Under the laws of the State of Kansas, this defendant is bound by her signature to her husband’s note in the same way that she would be if she were unmarried. If you find that she signed this note, she signed it as a joint maker, and is, therefore, equally bound with her husband, and her property is liable for its payment in the same way as that of her husband. You are, therefore, instructed that you cannot consider the question of the marriage relations between these parties; and I charge you that she is bound to pay this note, unless you find the same has been paid. ”

It is of this part of the charge that counsel for the defendant complain. They contend:

1. That the court had no jurisdiction of the controversy.

2. That a common-law action could not be maintained.

3. That, under a proper construction of the married woman’s act of Kansas, the defendant’s property could not be held for a debt for which her husband was primarily liable.

Our statute provides that:

“Any creditor shall be entitled to proceed by attachment against his debtor, * * * in case the debtor * * * is a nonresident, * * * in the circuit court of any county where the property of the debtor subject to attachment maybe found.” 3 Comp. Laws 1897, § 10555.

In Newland v. Wayne Circuit Judge, 85 Mich. 151 (48 N. W. 544), the precise question was before this court, and it was held that, where a nonresident comes into this State, and submits himself to the jurisdiction of the court, the statute points out the mode of procedure to acquire jurisdiction over the defendant. See, also, Cofrode v. Wayne Circuit Judge, 79 Mich. 343 (44 N. W. 623, 7 L. R. A. 511). We think the court below was not in error in holding that it had jurisdiction of the parties and subject-matter of the controversy.

The second point made by counsel is that the suit should have- been in equity, and not at law. Counsel rely upon the case of Deering v. Boyle, 8 Kan. 525 (12 Am. Rep. 480). Counsel say of that case:

‘ ‘ It will be seen that the court in deciding it bases its decision absolutely and solely upon the equity powers of the court, and as squarely holds that a common-law action will not lie, and grants to the plaintiff equity relief. It does so because it holds that, when a married woman signs a note, in equity she thereby charges her separate estate, and she is estopped from claiming otherwise, and, exercising its equity powers, the court holds her to be liable upon her signature. * * * Kansas holds that when she signs her name to a note she thereby (in equity) pledges all her property, and the equity power of the court will enforce the pledge.”

We think counsel are in • error in supposing that the Kansas case above mentioned holds that a common-law action will not lie upon this kind of a contract. The contract was made in Kansas, and must be controlled by the law of that State. It was held in the case referred to that a married woman can bind herself for the payment of her husband’s debt by. signing a promissory note, the only consideration for which was the credit given the husband. Construing section 2 of the married woman’s act of that State, the court says:

“A married woman may, under said section 2 of the married woman’s act, contract in the same manner, to the same extent, and with like effect, with reference to her property, as a married man.”

In Miner v. Pearson, 16 Kan. 28, it was said:

“A married woman may, in this State, bind herself by her contracts to the extent of her separate property; and a personal judgment may be rendered against her, which will reach any or all of her separate property not exempt from execution under the exemption laws.”

In Wicks v. Mitchell, 9 Kan. 80, in a suit on a promissory note given by a married woman in satisfaction of her husband’s debt, it was held that an allegation that “she has not charged her separate property with the payment thereof, but at the time of its execution refused in any manner so to charge her separate property,” presented no defense; that the law presumes that, by executing such note, a married woman intends to bind all her property, and she will not be permitted to deny such effect, nor to avoid the instrument by declaring at the- time of its execution that she will not do what she is actually doing.

Counsel, however, contend that, under section 17 of the married woman’s act of Kansas, it must be held that the defendant is protected under the laws of this State. That section provides:

“Any woman who shall have been married out of this State shall, if her husband afterward becomes a resident of this State, enjoy all the rights as to property which she may have acquired by the laws of any other State, Territory, or country, or which she may have acquired by virtue of any marriage contract or settlement made out of this State.” 2 Gen. Stat. 1897, chap. 123, § 17.

Counsel’s contention is that, under this statute, “if a woman acquires property under the laws of this State, when it is assailed in the courts of this State she is entitled to the protection of the laws of this State, and that under the laws of this State it could not be taken for the husband’s debt.” It is true that, under a contract made in this State, the wife’s property cannot be taken for the husband’s debt unless the wife expressly agrees in writing that it may be so taken; that is, unless the contract binds her separate property specifically. The Kansas statute above quoted gives the wife the right to the enjoyment of all her property, but, as held in Deering v. Boyle, supra, her property is subject to seizure and sale upon contract made by her, the same as the husband’s property is liable.

We think the court below was not in error in the charge given, nor in the construction he gave to the Kansas cases. The judgment must be affirmed.

The other Justices concurred.


author: Moore, J.

text:
    NEPHEW v. WHITEHEAD.
    Master and Servant — Personal Injury — Knowledge of Danger — Recovery.
    An employ é, experienced in handling heavy objects, cannot recover against his employer for injuries received by being struck by an iron beam which he was assisting to unload from a wagon on which he had helped to load it; the operation being a simple one, and the employer having no knowledge of danger that the employe did not himself possess.

      Error to Wayne; Erazer, J.
    Submitted February 2* 1900.
    Decided March 6, 1900.
    Case by Joseph J. Nephew against James T. Whitehead for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Malcolm G. Yerkes (Elbridge F. Bacon, of counsel),, for appellant.

      Gray & Gray, for appellee.
   Moore, J.

The plaintiff is 29 years old. He has sailed the lakes for 15 seasons, 5 or'6 of which he was wheelman on different steamboats. He entered into the employ of Mr. Whitehead. He testified he considered he was employed to operate a derrick in moving and handling iron beams, and that before that he had handled heavy stuff with derricks, ropes, rollers, and blocks. He was directed, to help other men place iron beams on trucks to be conveyed to the waterworks park in Detroit, and did so. He then went to the park, and was injured while engaged-in. unloading the beams which had been brought from defendant’s shop. The truck was a four-wheeled, platform dray. The front wheels were small, and able to pass beneath the body of the wagon. The rear wheels were larger, extending about 12 inches above the platform of' the wagon. The beams were about 23 feet long, and projected back of the wagon about 8 feet. The front end of the beam was allowed to rest upon the wagon. The rear end was raised, passed over the hind wheel, and pushed or thrown to the ground. The raising was done by six men standing alongside of the beam, behind the wagon, who lifted the beam until it was even with the top of the wheel, and then pushed or threw it over. The beam rested, perhaps, momentarily on the wheel. Being thus-at an angle with the length of the wagon, the beam, in falling, cleared the wheels. Plaintiff was one of the six men thus employed. They all stood on the side of the beam opposite to the direction in which it was to go. The beam was lifted to the top of the wheel, but, as it was pushed over, plaintiff, in some way unexplained by the evidence, was struck by the beam and injured. The beam went beyond the wheel, as it was intended. The plaintiff brought this suit to recover for the injuries thus received. The circuit judge directed a verdict for the defendant. The plaintiff has brought the case here by appeal.

If the plaintiff can recover in this case, an employer of labor would be liable whenever an accident occurred'. The operation to be performed was a simple one. . With the experience plaintiff must have had in handling heavy objects, he must have known as much about the danger involved in the unloading of these beams as any one. See Pilucki v. Spring Works, 117 Mich. Ill (75 N. W. 295). . We do not deem it necessary to discuss the case.

Judgment is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    PENINSULAR SAVINGS BANK v. WINEMAN.
    Gift — Deposit in Bank — Husband and Wife.
    Where a husband causes a deposit standing in his name in a bank to be transferred to his wife’s credit, and a pass-book to be issued in her name, possession of which he retains until his death, the wife signing checks at his request, and the proceeds being used by him for his own purposes, such facts, unaccompanied by any acts or declarations indicating an intention to donate the fund, are insufficient to show a gift to the wife.
    Appeal from Wayne; Donovan, J.
    Submitted February 2, 1900.
    Decided March 6, 1900.

      Bill of interpleader by the Peninsular Savings Bank against Nancy Wineman individually, and Nancy Wine-man and Alfred C. Wineman as executors of the last will and testament of Henry Wineman, deceased, to determine the title to certain money on deposit with complainant. From a decree in favor of the estate, Nancy Wineman appeals.
    Affirmed.

      John J. Speed, for appellant.

      Charles K. Latham and Everett B. Latham, for appellees.
   Hooker, J.

There is no serious dispute about the facts in this case. Mr. Henry Wineman had a deposit with the complainant bank of $4,467.46. On March 12, 1896, he directed the bank to transfer that credit to his wife, Nancy Wineman, and this was done by balancing his account, and crediting that sum to her. A pass-book was issued in her name, and delivered to him, and this he retained to the time of his death. He never afterwards had an account with complainant. On March 31, 1897, he made a deposit of $2,573.50 to her credit. Three checks were paid, two of which Mrs. Wineman signed; and one w*as paid without her signature, at Wineman’s request, upon the statement that it was inconvenient to obtain it. This was for only $50. All were written by the cashier at Mr. Wineman’s request. Mrs. Wineman was not aware that money was deposited in the complainant’s bank to her credit, nor did she know that the passbook was issued in her name, until about a year and a half after her husband’s death. Upon interpleader, a decree was made in favor of the executors, and Mrs. Wineman has appealed.

Counsel seem to concede that the substantial question in the case is whether the acts of the parties amount to a gift of the fund from Wineman to his wife. To determine this in favor of the widow, it is necessary to find that it was intended -by Mr. Wineman as a gift, and this we are unable to do. Leaving out of the case her testimony, which was inadmissible under the statute, we cannot find such intention, unless we are to presume it from the fact that he opened an account in her name. He opened no other account for himself, but thereafter made at least one deposit in this account. Nothing indicates that his wife knew she had an account, unless it be the fact that she signed two checks; and these were apparently signed at the request of the husband, who himself caused the checks to be prepared, and took them to her for her signature, and used the proceeds for his own purposes. She may not have known what she signed, or she may have understood that the whole transaction was for her husband’s convenience.

The case of Howard v. Savings Bank, 40 Vt. 597, might justify a decree for Mrs. Wineman, but we think the weight of authority is opposed to the rule there applied. The Massachusetts and New York authorities cited by counsel hold that a mere deposit in the name of another, unaccompanied by acts or declarations indicating an intention to donate the fund, is-not alone sufficient to prove a gift. Broderick v. Savings Bank, 109 Mass. 149; Sherman v. Savings Bank, 138 Mass. 581; Brabrook v. Savings Bank, 104 Mass. 228 (6 Am. Rep. 222); Booth v. Savings Bank, 162 Mass. 457 (38 N. E. 1120); Farmers’, etc., State Bank v. Gleason, 75 Ill. App. 251; Beaver v. Beaver, 117 N. Y. 421 (22 N. E. 940, 6 L. R. A. 403, 15 Am. St. Rep. 531); Orr v. McGregor, 43 Hun, 528; Robinson v. Ring, 72 Me. 140 (39 Am. Rep. 308). See, also, Gardner v. Merritt, 32 Md. 78 (3 Am. Rep. 115). In the latter case, and the case of Blasdel v. Locke, 52 N. H. 243, relied on by the counsel for the widow, there were facts beyond the mere deposit in the donee’s name, from which the intention might be inferred.

While there are some Michigan cases upon the subject, we find none that conflict with the cases above cited. Love v. Francis, 63 Mich. 181 (29 N. W. 843, 6 Am. St. Rep. 290); In re Dunlap’s Estate, 94 Mich. 11 (53 N. W. 788); O’Neil v. Greenwood, 106 Mich. 572 (64 N. W. 511); Ackenhausen v. Savings Bank, 110 Mich. 175 (68 N. W. 118, 33 L. R. A. 408, 64 Am. St. Rep. 338); Holmes v. McDonald, 119 Mich. 563 (78 N. W. 647).

The decree of the learned circuit judge is affirmed, with costs.

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


text:
    NEWLOVE v. PENNOCK
    1. Limitation op Actions — Judgments—Absence op Debtor.
    3 Comp. Laws 1897, § 9736, which excepts from the period limited for the commencement of personal actions the time during which the debtor shall, after the cause of action has accrued, be absent from and reside out of the State, applies, by analogy, to the 10-year limitation imposed upon a judgment creditor by 3 Comp. Laws 1897, § 9751, with respect to proceedings to enforce the judgment.

      %; Creditor’s Bill — Unsatisfied Execution — Conolusiveness op Return.
    Where a creditor’s bill sets forth a return of execution unsatisfied, entitling the creditor to file the bill, a supplemental bill will not be dismissed because it appears therefrom that the debtor has since acquired property subject to execution within the jurisdiction of the court which rendered the judgment.
    3. Same — After-Acquired Property — Supplemental Bill.
    A judgment creditor, by supplemental bill, may compel a disclosure as to property acquired by the debtor after the-filing of the original bill.
    4. Same — Equity Jurisdiction.
    Equity, having properly acquired jurisdiction of the parties and the subject-matter under a creditor’s bill, will retain its. jurisdiction, though it appear that complainant, as to a portion of the controversy, has a remedy at law, if it is able to afford the parties complete and adequate relief.

      Appeal from Wayne; Frazer, J.
    Submitted February 3, 1900.
    Decided March 6, 1900.
    Judgment creditor’s bill by Herbert W. Newlove, surviving partner of the firm of Alvin Wood & Co., against Homer Pennock. From an order overruling a demurrer to the bill, defendant appeals.
    Affirmed.

      Keena & Lightner, for complainant.

      T. E. Tarsney and W. G. Fitzpatrick, for defendant.
   Moore, J.

On June 1, 1886, Alvin Wood & Co. recovered a judgment for $596.38 against defendant and one David Pennock in the circuit court for the county of Wayne. On the 3d day of November, 1889, execution was issued on this judgment to the sheriff of Wayne county, which was returned unsatisfied on December 4th of that year. On the 30th of March, 1890, a judgment creditor’s bill in the usual form was filed by the plaintiffs against the defendants. The appearance of both defendants was duly entered by solicitors, but this appearance, so far as related to the defendant Homer Pennock, was, on the 9th of June, 1890, set aside. Service of process, issued on the filing of the original bill, was never had on the defendant Homer Pennock, who was absent from the State from 1890 until 1898. Wood died, and an order reviving the suit in favor of the present complainant was entered on the 3d of December, 1891. The cause lay dormant from then until the 3d day of June, 1898, when what is entitled an “amended bill of complaint” was filed. This was, in substance, a supplemental bill, and, by leave of court, was afterwards so entitled. A subpoena and injunction were issued, which were served upon the defendant Homer Pennock on the 6th of June, 1898. On February 33, 1899, the defendant Homer Pennock filed a demurrer to the amended bill of complaint, so called, from the order overruling which this appeal is taken.

The supplemental bill is based upon the judgment of June 1, 1886, and the execution returned unsatisfied December 4, 1889. It recites, in substance, the allegations of the original bill. No execution was issued after the one returned December 4, 1889. The supplemental bill alleges:

“That said Homer Pennock, as your orator is informed and believes to be true, has, during the past eight years or thereabouts, accumulated a considerable fortune, to wit, of the value of one hundred thousand dollars or upwards. * * * That during the year 1897, however, said defendant, with William O. Lee and Thomas J. Sweeney, both of Detroit, Michigan, and William Penberthy, of Leadville, Colorado, formed a partnership, as your orator is informed and believes to be true, and began business at Detroit, in said county of Wayne, under the firm name of Lee-Penberthy Manufacturing Company; * * * and that -the defendant Homer Pennock has a large interest in said business, of the value of one thousand dollars and upwards, over and above all claims.”

It recites his absence from the State. The bill then closes with the usual prayer for a discovery, answer under oath, and a receiver, according to the practice in judgment creditors’ cases. A demurrer was interposed to the bill on the following grounds:

“1. That the judgment upon which the bill is based was rendered more than 10 years before the amended bill was filed, and is, therefore, dead.
“2. Prom the bill it appears that the defendant has property which could be made subject to a writ of execution from the court where the judgment was rendered.
“3. That the property of the defendant was acquired after the filing of the original judgment creditor’s bill, and after the execution returned unsatisfied upon which it was founded. ”

The demurrer was overruled.

It is claimed that under section 9751, 3 Comp. Laws 1897, the statute of limitations runs against all judgments obtained in court unless suit is brought within 10 years, and that the provisions of section 9736, 3 Comp. Laws 1897, which provide, in case the debtor is absent'from the State, the time of his absence shall not be taken as any part of the limitation, do not apply to judgments. We agree with the circuit judge that Shelden v. Barlow, 108 Mich. 375 (66 N. W. 338), construes these statutes against the position of the solicitors for defendant.

As to the' other grounds of demurrer, section 436, 1 Comp. Laws 1897, provides under what circumstances the creditor may file a creditor’s bill. The original bill shows that all the conditions required by the statute to entitle the complainant to file this bill existed when it was filed. It shows a return of the execution nulla bona. Such a return, in an equity suit, is conclusive. Albany City Bank v. Dorr, Walk. Ch. 317; William Wright Co. v. Wayne Circuit Judge, 109 Mich. 139 (66 N. W. 954). Very soon after the return of the execution, the bill was filed. It is true the case was not prosecuted, b.ut it appears that service could not be had until in June, 1898, because of the absence from the State of the 'defendant who appears in this proceeding. It cannot be said the delay was the fault of the complainant. When the bill was filed, the complainant had a right to file it. In Clark v. Davis, Har. Ch. 227, it is held that, the right to file a creditor’s bill having once attached by the return of the execution unsatisfied, the party is not prevented from commencing proceedings in chancery by the issuing of a new execution. Cuyler v. Moreland, 6 Paige, 273. It is probable the defendant could not be compelled to make discovery of his property at a later date than the filing of the bill. Gregory v. Valentine, 4 Edw. Ch. 282. But that case recognizes the right to file a supplemental bill, and that, by filing such a bill, a disclosure of property to a later date may be required.

It is urged that upon the face of the supplemental bill it appears that complainant has an adequate remedy at law, and, this being so, he cannot come into a court of chancery for relief. The answer to that suggestion is that the parties are already in a court of chancery. It has jurisdiction of the parties and of the subject-matter. The bill alleges that the property in this State, owned by Mr. Pennock, is an interest in a partnership. The parties are in court. It has jurisdiction over the subject-matter, and can afford complete and adequate relief to all the parties. Under such circumstances there is no reason why the chancery court should surrender its jurisdiction, and remand the parties to a court at law. George v. Electric Light Co., 105 Mich. 1 (62 N. W. 985); Dunlap v. Byers, 110 Mich. 109 (67 N. W. 1067).

The decree is affirmed, with costs..

The other Justices concurred.


author: Per Curiam.

text:
    GOULET v. PERRY.
    Appeal — Findings op Fact — Exceptions—Error.
    No question, is open for consideration on appeal, in an action tried before the court without a jury, where no exceptions were taken to the findings, and error is not assigned on the ground that the facts found do not support the judgment.
    Error to Osceola; McMahon, J.
    Submitted February 2, 1900.
    Decided March 6, 1900.
    Trover by Louis X. Goulet and another against John Perry, impleaded with Amos Rosenberg and others. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      Clyde C. Chittenden (E. E. Haskins, of counsel), for appellant.

      C. M. Beardsley, for defendant Rosenberg.

      J. Byron Judkins and J. E. Richardson (Harrison Geer, of counsel), for plaintiffs.
   Per Curiam.

This is an action of trover for the conversion of a printing-press and attachments. Judgment was taken against all the defendants except Rosenberg, who was held not liable. Defendant Perry alone'appeals. The case was tried before the court without a jury, and a finding of facts and law made. The only finding of' law is that the plaintiffs were entitled to recover. Appellant made no exceptions to the finding, either of fact or law. The only question, therefore, reviewable, is whether the facts found support the judgment. No error is assigned for that reason, nor is it argued in the brief of counsel. Aside from this, the facts found fully sustain the judgment.

Judgment affirmed.


text:
    ORMSBEE v. PIPER.
    1. Executors and Administrators — Validity of Letters — Collateral Attack.
    Letters of administration cannot be attacked in a collateral proceeding on the ground that there was no necessity for the appointment of an administrator. ' •
    2. Same — Uncollected Choses in Action —Right of Possession-Agreement for Distribution.
    An administrator duly appointed without appeal is entitled to the possession of the uncollected choses in action belonging to the estate in the hands of the widow's executor, although, there being no debts against the estate, the heirs and the widow have agreed upon an amicable division thereof, without administration.
    Case made from Mason; McMahon, J.
    Submitted February 6, 1900.
    Decided March 6, 1900.
    Replevin by Hamilton C. Ormsbee, administrator of the estate of Erastus N. Ormsbee, deceased, against George F. Piper, executor of the last will and testament of Mary A. Ormsbee, deceased. There was a judgment for defendant, and plaintiff assigns error.
    Reversed.

      Fitch & Reek, for appellant.

      M. B. Danaher, for appellee.
   Hooker, J.

The finding of fact in this cause shows that Erastus N. Ormsbee died intestate on April 14, 1895, leaving an estate consisting of a team, wagon, some farming tools, and a mortgage for $1,900; also, an undivided half interest in certain lands. He owed no debts. He left surviving him a widow, Mary A., and three children, Hamilton, Charles, and Grace. All were adults, except Grace, who was a minor. A petition for administration was filed, but no hearing or other proceedings were had upon said petition at that time, for the reason that the widow (who was the legal guardian of Grace) and the children made an amicable agreement, which was put in writing by the judge of probate and was signed by them. The following is a copy:

“In the Matter op the Estate op Erastus Ormsbee, Deceased.
Whereas, said deceased departed this life at his residence, in the township of Summit, Mason county, on April 14, 1895, and was possessed at the time of his death of personal estate of the value of two thousand two hundred dollars ($2,200.00) or thereabouts; and
Whereas, there are no debts against the estate of the said deceased, and of the personal property thereof, after an allowance of the household goods and two hundred dollars ($200.00) of other personal property from said estate to his widow, Mary A. Ormsbee, as provided by statute, there remains only a certain mortgage for one thousand nine hundred dollars ($1,900), and interest upon the same for one year, of one hundred and thirty-three dollars ($133.00), amounting in all to two thousand thirty-three dollars ($2,033), upon the following-described real estate, to wit: The west half of the northwest quarter of section eight, in township seventeen north, of range seventeen west, given by one Joanna Mills, and dated April 11th, 1894:
“Now, therefore, the undersigned, Mary A. Ormsbee (for herself, as widow of said deceased, and for Gracie B. Ormsbee, a minor, as her guardian), Hamilton O. Ormsbee, and Charles E. Ormsbee, all heirs and all of the heirs at law of said deceased, do hereby agree to divide the personal estate of said deceased hereinbefore mentioned (the amount of said mortgage and interest) without administration of said estate, and do hereby agree to accept as payment in full, as the proportion thereof due each of us, the following amounts: Mary A. Ormsbee, widow, six hundred eighty-three dollars ($683); Mary A. Ormsbee, as guardian of Gracie, four hundred and fifty dollars ($450.00); Hamilton C. Ormsbee, four hundred fifty dollars ($450.00); Charles E. Ormsbee, four hundred fifty dollars ($450.00).
“And it is also hereby agreed by and between the parties to this instrument that this settlement shall be understood as having been made on the 11th day of April, 1895, and that the payments of the said several amounts to the parties hereto shall become due as payments upon said mortgage shall become due, and in proportion to the amount due each, and that the interest upon said mortgage, now payable yearly at the rate of seven per cent, per annum, shall be paid to the said parties at the same rate upon the several amounts due each of them by this agreement, and that both the principal and interest as aforesaid shall be payable to the parties hereto, or to their heirs and assigns.
“And for the true and faithful performance of all and every of the covenants and agreements above mentioned, the parties to these presents bind themselves each unto the other.
“In witness whereof, the parties to these presents have hereunto set their hands and seals the day and year, May 31st, 1895.
[Signed] “Mart A. Ormsbee.
“Mart A. Ormsbee, “Guardian of
Gracie B. Ormsbee.
“Hamilton C. Ormsbee.
“Charles E. Ormsbee.”

No order upon or record of this transaction was made by the probate court. The widow seems to have retained the custody of the mortgage, and received some interest upon it. She died testate in 1898, and on May 24th of that year Piper was appointed executor. Four days later Hamilton C. Ormsbee was appointed administrator of Erastus N. Ormsbee’s estate, and on Juné 1, 1898, he brought replevin against the executor for the mortgage.

The court held, as conclusions of law, that, there being no debts, it was competent for the heirs to make any fair agreement they chose for the distribution of the estate; that no contingency has since arisen requiring the appointment of an administrator and the repudiation of the agreement, and it was not competent for Hamilton to seek an appointment as administrator for the purpose of annulling the agreement; that the guardian of Grace had authority to make the agreement. Judgment was entered for the return of the property. Meantime proceedings had been instituted by the plaintiff for foreclosure of the mortgage, and the brief states that these have gone to decree. The interest is in arrears several years upon the mortgage.

We cannot, in this collateral action, say that there was no necessity for the appointment of an administrator. That was a question for the probate court, and no appeal was taken. It is true that the conclusions of law contain the statement that it was not ‘necessary; but, if we treat that as a determination of fact, it was unimportant, because the probate court has determined otherwise, and its order stands unreversed. The letters of administration are valid, and cannot be attacked in this collateral proceeding. We are cited to several authorities in support of the defendant’s claim, but we shall see that they do not support it. In the case of Needham v. Oillett, 39 Mich. 574, the question arose on appeal from the order appointing the administrator. The case of Brown v. Forsche, 43 Mich. 492 (5 N. W. 1011), was a claim that the administrator had prematurely distributed the estate. The court held that he had not done so. In Foote v. Foote, 61 Mich. 181 (28 N. W. 90), the children of the testatrix, Mahitibal Foote, all met at the house of one of their number, Elisha, and agreed that a note given by the latter had been paid. It was produced and surrendered, and he cut his name off, upon an agreement by Elisha that he would pay the funeral expenses, which he subsequently did. This was in 1867. Elisha Foote died in 1882, and his son Frederick was appointed administrator in January, 1883. Subsequently Gilbert Foote was appointed administrator with the will annexed of Mahitibal’s estate, and filed a claim before commissioners upon said note for allowance. It was disallowed, but upon appeal the court excluded proof of the settlement, directing a verdict for the claimant. This was held to be error. The only question, then, was whether anything was due from Elisha to the estate, and, as it was conceded that there were no debts against the plaintiff’s estate, all parties interested were held estopped to claim anything from Elisha upon the note, which was at the time in the hands of the plaintiff. The case of Letts v. Letts, 73 Mich. 138 (41 N. W. 99), throws no light upon the question, and we are unable to find the case of McCleary v. Menke, cited by defendant’s counsel.

Many of the courts hold that administration is necessary; that neither legatees nor heirs can sue any person in respect of the assets of an estate, but an executor or administrator, nor legally distribute the estate among’ themselves; and that payment of a debt due the deceased to any one but a legally-constituted executor or administrator will not protect the debtor. The authorities will be found collected in 1 Woerner, Adm’n, § 200. An exception to this rule is found in many States, viz., that where there are no debts, and the heirs have succeeded in, collecting, and have by executed agreement actually distributed, the assets, no administration is necessary; and in Alabama a practice seems to exist whereby equity may make distribution when it affirmatively appears that the only necessity for an administrator is to make distribution. 1 Woerner, Adm’n, § 201. In Illinois it is held that an agreement among the heirs is revocable until completely executed. Patterson v. Patterson, 74 Ill. App. 321. The case of Foote v. Foote, supra, contains this language:

“The legal estate only in personal property vests in the administrators; the equitable estate therein is in the heirs, or other persons entitled to distributive portions thereof. The estate of the administrators therein is a trust for that purpose, and is created only for the purpose of laying hold of the estate and making such distribution.When there are no creditors, the heirs or legatees may collect, if they can, the estate together, and make such distribution among themselves as they may agree to and carry into effect, without the intervention of any administrators ; and the law favors such arrangements. In such cases it is only where the heirs or legatees fail to make such collection and distribution that administration becomes necessary. When such arrangement and distribution have been made and executed, it will be binding, both in law and equity, as between the parties making it, whenever the rights of creditors do not intervene. And, where there are no creditors, the heirs or legatees may divide up and distribute the personal property of the decedent, without converting it into money, in such manner as they see fit; and when such division has been executed, even though it is not such as the decedent has made by his will, or such as the law would make when there is no will, it will be binding upon all the parties to the agreement. * * * By the terms of the claimed settlement in this case, all the estate was disposed of, and the heirs with whom Elisha, Sr., made the settlement were fully satisfied, and among whom was the heir who has been appointed administrator of Mrs. Foote’s estate. It is not claimed any fraud was practiced upon either side in making the settlement, or any mistake made. All the parties to the agreement were familiar with the facts and circumstances under which it was made. If such settlement was made as claimed, we think it was upon a sufficient consideration, and all the parties present and participating therein or assenting thereto are bound thereby, and estopped from making any claim to said note or to any of the proceeds thereof.”

Nowhere do we find that an administrator duly appointed without appeal can be denied the uncollected choses in action yet belonging to the estate, upon the ground that the heirs have agreed that there should be no administration of the estate. We do not wish to intimate that the contract was not valid and binding, but there is nothing in it that transferred the title or the right to the custody of this mortgage to the widow, or to any other of the parties to it. Had the mortgagor seen fit to pay it to one of them, it may be that the several shares could have been recovered by action; but she did not pay, and it is not clear that any or all would have had a right of action upon the debt. The only possible objection to an administrator is the provision in the agreement that the parties should divide the personal estate, without administration^ according to an apportionment therein agreed upon. But they have not divided the amount of the mortgage, and perhaps they could not get it to divide. The survivors have now taken proper steps to enforce collection, and, when it shall be collected, the contract may perhaps settle the proportions to which they are respectively entitled.

The judgment is reversed, and one will be entered here in favor of the' plaintiff for nominal damages, with costs of both courts.

The other Justices concurred.

       See 109 Ill. 294, erroneously cited in defendant’s brief as 109 Mich. 294.


text:
    CITY OF MUSKEGON v. COUNTY OF MUSKEGON.
    Taxation — Delinquent Personal Tax — Township Liability.
    Cities and townships are liable for the entire amount of State and county taxes levied on personal property therein, whether or not it is collected of the persons from whom it is due.
    .Error to Muskegon; Russell, J.
    Submitted October 5, 1899.
    Decided March 13, 1900.

      Assumpsit to recover uncollected personal State and county taxes paid by plaintiff. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Arthur Jones, for appellant.

      C. W. Sessions, for appellee.
   Moore, J.

The various city treasurers of the city of Muskegon paid to the treasurer of Muskegon county the uncollected personal State and county taxes for the years 1883 to 1890, inclusive. The amount of the uncollected personal State and county taxes due from the city of Muskegon for the years 1891 to 1894, inclusive, was deducted by the county treasurer from the delinquent city and school taxes which he had collected during those years, at the settlements had between him and the city treasurer, and receipts were passed between them therefor. The county treasurer paid from the amount so collected the portion due the State, to the State authorities, and was duly credited therefor. To collect the amount so paid, the plaintiff sued the defendant, and by direction of the court a verdict of upwards of $13,000 was rendered in favor of the plaintiff.

The primary question in the case is, May the various-cities and townships of the State refuse to pay the State and county taxes assessed against personal property until the amount thereof has been collected of the persons from whom it is due? It is conceded by the counsel for the city that, prior to the enactment of the tax law of 1882, the city or township treasurer was required to pay to the county treasurer the full amount of the tax levy upon personal property, whether it had been collected or not, but it. is claimed that a change was made in that respect in 1882. His views, as expressed in his brief, are as follows:

“A review of all the provisions of the various tax laws, and a comparison of the earlier with the later, clearly establish the fact that in 1882 the legislature adopted an entirely new plan and theory of debits, credits, accountings, payments, and settlements by and between the county and township and the county and State, and the plan then adopted has been steadily pursued and followed in the later enactments. Under the earlier laws the county was to be charged with the entire levy for State taxes, and the township, in turn, with the entire levy for State and county taxes, and then and thereby a debt was created. By the later laws no such charge is authorized, and no indebtedness exists. Under the earlier laws the taxpayer owed no debt to the township, at least until after the township had paid the county and State for their shares of the claim. By the later laws the debt for the taxes upon both real and personal property becomes fixed, as against the taxpayer, as soon as the taxes are spread. Under the earlier laws the State became the absolute owner of all lands sold and bid off to the State for nonpayment of taxes. By the later laws such lands are bid off in the name of the State, for the State, county, and township, in proportion to the taxes due to each. Under the earlier laws the township treasurer was required to pay to the county treasurer the full tax levy for State and county purposes, either in cash or delinquent taxes upon real estate. By the later laws he is required to pay only such sums of money as he collects. The condition of the township treasurer’s bond in the later laws is changed to correspond to the change concerning the amounts of money to be paid by him. Under the earlier laws the township treasurer made no returns to the county treasurer of delinquent taxes upon personal property, and received no voucher therefor. By the later laws delinquent taxes upon personal property are returned in the same manner as delinquent taxes upon real property, and both returns become vouchers. Under the earlier laws the debit of the tax levy was balanced by the credit for the delinquent and rejected taxes upon real estate and money paid. By the later laws the debit of moneys collected is balanced by the credits for moneys paid. Finally, in harmony with the whole plan of the later laws, ‘the accounts between the State, county, and each township shall be adjusted on the basis of crediting and paying to each the taxes collected by and for each.’”

He urges that this view is sustained in City of Muskegon v. Soderberg, 111 Mich. 559 (69 N. W. 1116). Counsel cites the following language from section 52, Act No. 206, Pub. Acts 1893, “In case the township treasurer shall not collect the full amount of taxes required by his warrant to be paid into the township treasury, such portion thereof as he shall collect shall be retained by him, to be paid out for the following purposes ” (the statute naming only township, highway, and school purposes), and asks, “How can a township treasurer obey this statute, and at the same time pay any part of the money so collected to the county treasurer, to make up the deficit in the personal State or county taxes ? ” A reference to section 59, Act No. 169, Laws 1869, shows that the language of the two sections is identical, so that the question would apply with equal force to the earlier statute.

It is urged that section 89 of the law of 1893 indicates that the delinquent personal tax shall be collected by the township treasurer, and paid to the township, county, and State in proportion to their several rights therein, while section 87 of the same law provides, “The accounts between the State, the county, and each township shall be adjusted on the basis of crediting and paying to each the taxes collected by and for each, with the interest thereon,” and that the provisions indicate clearly that the State and county have no claim against the city or township until the personal tax is collected. If these provisions of the law stood alone, this argument would have a good deal of force, but the law must be construed as an entirety. It provides for the return of delinquent taxes on real estate, and for the collection thereof by the county treasurer and the auditor general. As to the uncollected real-estate taxes, the tax remains a lien upon the land, and, in case it is not paid, the land may be sold by the auditor general for the taxes, charges, and liabilities; but there is no officer who can collect the taxes levied against personal property, except the city or township officer. The taxes against personal property, by reason of section 40 of the tax law of 1893, become at once a debt to the township from the person against whom they are assessed, and a suit at law may be maintained to collect them. Township of Bangor v. Smith Transp. Co., 112 Mich. 601 (71 N. W. 143).

If the claim of the city is sustained, it is difficult to see how the collection of the taxes levied against personal property due the county and the State can be enforced by the county and State if the city or township officers are derelict in their duty. For 30 years or more the various city and township treasurers have paid over to the county treasurers the delinquent personal taxes, and the portion due the State has been paid over to it by the several county treasurer’s. So far as we know, the plaintiff in this case is the only municipality which has claimed the right to withhold delinquent taxes levied against personal property until they were collected. If- it was intended by the law of 1882 to make so radical a departure as is here contended for, the legislature was not apt in expressing itself, and the various officers whose duty it is to administer the law have been slow to discover the change. If the language of the statute clearly indicated a purpose to change the policy of the State in the manner of collecting the delinquent personal tax, the statute must control, but, in a doubtful case, the practical construction of the statute which has obtained in the department having charge of the enforcement of the statute ought to have great weight. Westbrook v. Miller, 56 Mich. 151 (22 N. W. 256); Attorney General v. Glaser, 102 Mich. 409 (61 N. V, 648).

The case of City of Muskegon v. Soderberg, supra, was a mandamus case. It is stated in the opinion in that case that it was conceded that the money in the-hands of the county treasurer belonged to the city treasurer, so that the concession which was made accounts for the opinion which was rendered in that case.

Attached to the plea of the defendant was a notice of set-off, in which it was sought to recover for the delinquent-personal taxes for the years 1895 to 1897, inclusive, amounting, with the interest thereon, as shown by the testimony, to-the sum of $2,239.97, for which amount the circuit judge-was requested to direct a verdict in favor of defendant. What we have already said in disposing of the claim of the city against the county disposes of this item. The court below should have directed a verdict for this amount in favor of defendant.

The judgment of the court below is reversed, and a new trial ordered.

The other Justices concurred.


text:
    CRONIN v. FIRE ASSOCIATION OF PHILADELPHIA
    1. Fire Insurance — Application—Warranty Where a policy of fire insurance is issued upon the written application of the insured, the application becomes a part of the contract, and statements therein have the force of warranties, though it is not referred to in the policy.
    '2. Same — Breach op Condition — Void Policy.
    A policy of insurance upon a manufacturing institution, which was issued before the taking effect of 2 Comp. Laws 1897, § 5182, requiring the insertion in policies thereafter issued, after the clause containing the conditions for breach of which the policy is declared void, of a proviso that such shall be the effect only when loss occurs “while such breach of condition continues,” was rendered absolutely void, where the institution ceased to be operated for more than 10 consecutive days, contrary to a condition of the policy, though it was in operation within 10 days preceding the loss.
    3. New Trial — Refusal—Statement op Reasons.
    It is the duty of the circuit judge, upon request, to give a definite statement of his reasons for denying a motion for new trial, and the mere statement that the mover has not “shown sufficient grounds and reasons to justify it” is insufficient.
    Error to Shiawassee; Smith, J.
    Submitted January 5, 1900.
    Decided March 13, 1900.

      Assumpsit by Michael B. Cronin and Thomas Cronin, for the use and benefit of Milton M. Rose, against the Fire Association of Philadelphia, on a policy of insurance. From a judgment for plaintiffs, defendant brings error.
    Reversed.

      Crane, Norris & Stevens, for appellant.

      Walter McBride (Watson & Chapman, of counsel), for appellees.
   Hooker, J.

This cause is before us for the third time, on writ of error sued out by the defendant. Our former opinions in relation to it are reported in 112 Mich. 106 (70 N. W. 448), and 119 Mich. 74 (77 N. W. 648). Upon the last trial the court left to the jury the following questions :

1. Was the policy issued upon a written application, as alleged by the defendant ?

2. Was the creamery idle for 10 consecutive days ?

3. Was the policy avoided by a failure to procure the defendant’s consent to foreclosure proceedings against the property ?.

It is claimed that it was error to submit either of these questions to the jury, and that a verdict should have been directed for the defendant.

The building was owned by the plaintiffs, who used it for a creamery. One Milton M. Rose had a mortgage upon it. Samuel W. Cooper was defendant’s local agent at Corunna. W. R. Chapell was also an insurance agent, and he also lived in Corunna. There is testimony tending to show that Rose’s brother and agent asked Cooper to insure his interest, because the Cronins would not attend to it, and that Cooper, having some doubts whether his company (the defendant) would carry the risk, procured an application from Chapell, who prepared it and caused the Cronins to sign it on December 5, 1894, and sent it to the home office in Chicago, and was authorized by its general officers to issue the policy, which he then did. It was issued in the name of the Cronins, loss, if any, payable to Rose as his interest might appear, and was delivered to Rose, who paid the premium. Cooper testified that the only person who requested him to insure the creamery was Rose, and that, “in getting the written application referred to, he acted on his own responsibility, and sent it to the company as a matter of information, and had been conducting this business that way for four or five years, and had the exclusive agency in Corunna. ”

This question was held in our first opinion, upon testimony substantially the same as this, to be for the jury.

In this connection we are asked by counsel for the plaintiffs to determine whether the written application should be considered a part of the contract, and a warranty, in any event. We have no doubt that it should be so considered, if the policy was issued upon it.

The policy contains the provision that:

“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the subject of insurance be a manufacturing establishment, and * * * if it cease to be operated for more than ten consecutive days.”

The defendant’s counsel allege that this creamery was idle for more than 10 days, and that the undisputed testimony shows it. Cronin testified that they shut the creamery down in September, and never resumed manufacture. They afterwards stored some corn there, and they had some butter there, that they shipped out as they got orders for it. They had it in the refrigerator. He said on cross-examination that they ceased buying milk in September, and that in October they made no use of the building, except for the storage of their butter, which they shipped 'out as fast as they could get a market for it, and that he thought the last butter or merchandise was shipped out in October. Several other witnesses testified that it was shut down in September, and that it was not started up to manufacture butter, to their knowledge. The only testimony tending to contradict this is that of Rose and his son, who say they were at the creamery on November 28th and December 2d, and that the machinery, or some part of it, was running for the purpose of “ working over” some of the butter on hand, and that Cronin said it would take two or three days. This leaves over a month that it was not operated, if the testimony of other witnesses is to be believed. Counsel for the plaintiffs contend that this testimony discredits the Cronins, and therefore the jury may disbelieve them. There is much other testimony that it was shut down more than 10 consecutive days, and there is no testimony tending to show that it was not. The court would have been warranted in saying to the jury that the undisputed evidence established that fact, and he erred in refusing to grant a new'trial upon the ground that the jury’s answer to the special question was against the evidence. In this connection we should remark that the alleged reasons given by the court for denying the motion for new trial were not a compliance with the law, which requires something more than the statement that the mover has not “shown sufficient grounds and reasons to justify it. ” Counsel requested that reasons' be filed, and they were entitled to them.

It seems to be claimed that the policy should not be held void if the machinery was being operated within the 10 days immediately preceding the fire, but such is not the law. We have frequently held that the breach of such a condition renders the policy immediately and wholly void, as the following cases, cited by counsel, show: New York Central Ins. Co. v. Watson, 23 Mich. 487; Finery v. Insurance Co., 51 Mich. 472 (16 N. W. 816); Kitchen v. Insurance Co., 57 Mich. 140 (23 N. W. 616, 58 Am. Rep. 344); Clark v. Insurance Co., 107 Mich. 160 (65 N. W. 1); Cronin v. Fire Ass’n, 119 Mich. 74 (77 N. W. 648); Carpenter v. Insurance Co., 61 Mich. 644 (28 N. W. 749); Allemania Fire Ins. Co. v. Hurd, 37 Mich. 13; Cleaver v. Insurance Co., 65 Mich. 530 (32 N. W. 660, 8 Am. St. Rep. 908); Robinson v. Fire Ass’n, 63 Mich. 96 (29 N. W. 521). This has now been changed by statute, as to Michigan standard policies. 2 Comp. Laws 1897, § 5182.

A verdict should have been "directed for the defendant. The question in relation to notice of the foreclosure proceedings was passed upon at a former hearing.

The judgment is reversed, and a new trial ordered.

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


author: Montgomery, C. J.

text:
    FITZ GERALD v. CITY OF BIG RAPIDS.

    1. Real Property — Suspension of Power of Alienation.
    Under 3 Comp. Laws 1897, §§ 8796, 8797, prohibiting the suspension of the absolute power of alienation for a longer period 'than the continuance of two lives in being, any suspension of the power of alienation not based on lives in being is void.
    2. Same — Wills—Conditional Devise.
    A direction in a will that the executor should convey certain property to a city if the city would agree to maintain a free public library thereon, but, in case the city should refuse to accept the grant, that he should sell the prbperty, and pay over the proceeds to specified legatees, is not void as suspending the power of alienation, since the joint action of the city and the executor would at any time be effectual to convey an absolute fee.
    3. Same — Executors—Discretionary Power of Sale.
    A provision in a will authorizing the executor, at his discretion, to defer for three years the exercise of a power given by the will to sell the real estate, but in no way restricting his right to sell at once, does not constitute a suspension of the power of alienation.
    4. Same.
    The fact that an executor was required to satisfy debts against the estate, and to determine as to alterations of property belonging thereto, before conveying the same, was not a suspension of the power of alienation.
    Appeal from Mecosta; Palmer, J.
    Submitted January 9, 1900.
    Decided March 13, 1900.
    Bill by John C. Fitz Gerald, executor of the last will and testament of Harriet C. Phelps, deceased, against the city of Big Rapids, Alice A. Wellman, and others, to obtain a construction of said will. From a decree in favor of defendant city, the other defendants appeal.
    Affirmed.

      Edmund D.‘ Barry {Francis A. Stace, of counsel), for complainant.

      Joseph Barton, City Attorney, and M. Brown, for defendant city.

      Food & Hindman, for appellants.

       Rehearing denied May 18, 1900.

   Montgomery, C. J.

This is a bill filed to obtain a construction of the will of Harriet C. Phelps, deceased. The principal question arises over the eleventh clause of the will, which reads as follows:

“ All the rest, residue, and remainder of my estate, except the house and grounds on which I now reside, and known as my homestead (the same being a lot of land one hundred and fifty" feet square, on the northeast corner of Elm street and Stewart avenue, and bounded on the south by Elm street and on the west by Stewart avenue, in the city of Big Rapids, Michigan), I order and direct my executor to sell and convert into money or interest-bearing securities, and then, if the city of Big Rapids will, in due and legal form, agree to accept the same upon the terms and conditions herein expressed, and in such form and manner and substance as shall meet the approval' of my executor, to expend upon the buildings upon said lot, and putting such other buildings thereon as shall be necessary in his opinion, a sufficient amount to properly accommodate and maintain, as to room, a public library thereon, and out of the balance of said funds to purchase a library, at an expense of such sum as he shall deem best, but not exceeding two-thirds of the balance of the money then remaining in his hands; and the remainder of said money he shall invest in interest-bearing securities, and the income arising therefrom, after paying all costs and charges, shall be paid to said city", to be used by it in the purchasing and keeping up new books for said library, and for no other purpose; and upon the completing of the repairs, changing of said buildings, and the building additional buildings, if necessary, and after and upon the said city of Big Rapids agreeing to accept the same, and to forever thereafter maintain a free public library thereon, to be known as the ‘ Phelps Free Library, * to keep the buildings insured, as well as the library, for at least three-fourths of their value, and, in case of destruction or injury by fire or otherwise, that the said city will, within two years thereafter, rebuild or repair such buildings, and purchase and place therein a library of as much value as the one destroyed, and costing at least as much as they are to have the same insured therefor, — then, and upon such conditions, I direct my said executor to convey to said city the premises above described, and the library therein so purchased as aforesaid.
“Said conveyance to said city is to expressly provide that said premises are to be forever used for the purpose of maintaining such free public library thereon, and for no other purpose whatever; and should the same be used for any other purpose, or should the city cease to use the same for said purpose for the term of three years consecutively, then the same shall revert to and become the property of the legatees named in the fifth section of this will, as well as the income of said fund above expressed. Should said city not agree to accept said provisions and trust, and should it not accept the same, as above provided, as to terms and conditions, then it is my will, and I order and direct my said executor to sell the said premises, and the proceeds thereof, and said fund, as well as all the rest and remainder of my estate, to pay over to the legatees named in the fifth section above, in proportion that their respective legacies bear to the whole amount of such sum.”

The residuary legatees contend that this clause is invalid, as in contravention of sections 8796 and 8797, 3 Comp. Laws 1897, which prohibit the suspension of the absolute power of alienation for a longer period than during the continuance of two lives in being. It is correctly stated by the learned counsel for the appellants that any suspension of the power of alienation not based on lives in being is invalid. State v. Holmes, 115 Mich. 456 (73 N. W. 548).' But the question remains whether there is a restraint on the power of alienation. The statute (section 8796) declares that such power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. It has been frequently held that if there are in existence persons who, by joining in a conveyance or by successive releases, are able to pass the whole estate, the requirements of the statute are met. Under the terms of the clause quoted, all that stands in the way of a conveyance by the executor is the contingency that the city of Big Rapids might elect to take under the will; but if, on the other hand, the city should decline to take, or should grant its right to take, can there be any doubt that a conveyance by the executor would pass a complete title, or that these two acts (i. e., the conveyance by the trustee and the release by the. city) might take place at any time ?

It is to be noted that the city is not declared a trustee, but is simply to take a conveyance on condition subsequent, which is that, if the city ceases to use the premises devised for the purpose of a library for the term of three years, they shall revert to certain legatees named. The cases upon which counsel chiefly rely are Rose v. Rose, 4 Abb. Dec. 108; Yates v. Yates, 9 Barb. 347. In Yates v. Yates, the devise was to a school not in existence, and was postponed until the legatee should accept the devise. In Rose v. Rose, likewise, the bequest was to an association which took when certain conditions (among them, the raising of a fund of $300,000) were performed. In neither case was there any one in existence who could have joined with the executor or trustee in making a conveyance. In the present case the city might at once release its right under the will, or it might decline to take, and in either case a complete conveyance could be made by the trustee. Chapl. Susp. Alien. §§ 283, 284.

But in another view there was no suspension of the power of alienation. True, the will contains the following provisions:

“I hereby give to my said executor, as well as trustee, full power and authority to sell and dispose of all my property at public or private sale, and upon such terms and conditions, and for such prices, as he shall consider best, and to invest and reinvest the proceeds thereof as in his judgment is best; and he shall not be obliged to pay any of the legacies aforesaid until the expiration of three years from the time of the probate of this will, and said legacies shall not draw interest, unless, in the opinion of my said executor, interest has been realized from the money which would go to pay the same. But the payment of such legacies, or any of them, may be, at the option of my executor, made at an earlier date. The foregoing provision as to payment of legacies shall not be construed as governing the time in which said library shall be provided, built, and purchased. That shall be done in such time after said legacies are paid as the property to create said fund can, in the opinion of my said executor, be converted into cash or interest-bearing securities without sacrifice or loss, and the fund put in condition so that the total amount thereof shall be known.”

But there is no provision which prohibits the executor from proceeding within three years or at once. As was said in Robert v. Corning, 89 N. Y. 225, the power of sale was not suspended by the discretion given by the will. The executor could sell and convey the land at any time and give a perfect title.

It is argued by counsel for the appellants that the power of alienation was suspended, because, before conveying to the city, the trustee or executor must first satisfy the debts against the estate and the legacies under the will, and determine about the alteration of the homestead; but, if such provisions are to be held an unlawful restraint on alienation, there could be no such thing as a power under a will, as the estate devised is in all cases subject to the charges of debts and legacies. Such delays are not within the reason of the statute. Manice v. Manice, 43 N. Y. 303; Robert v. Corning, 89 N. Y. 238.

It is claimed by counsel for the appellants that the decree is so framed as to affect the rights of the appellants in another case. If this can be made clear to us on settlement of the decree, the decree in this court will be so modified as to protect the rights of all parties.

The complainant will be entitled to a reasonable allowance out of the funds of the estate for the expense of appearance in this court. The city of Big Rapids will recover of the appellants its costs, to be taxed.

The other Justices concurred.


text:
    ROBERTS v. DRUILLARD.
    Breach of Marriage Promise — Evidence—Defamation—Damages.
    In an action for breach of promise of marriage, evidence that defendant, in giving his reasons for breaking the engagement, made certain false and slanderous statements concerning the plaintiff, is admissible to show wantonness and malice, byway of enhancing the damages for the breach of promise; but such defamation cannot properly be made the basis of an independent award of damages in such action.
    Error to Monroe; Kinne, J.
    Submitted January 9, 1900.
    Decided March 13, 1900.

      Assumpsit by Octavia Roberts against Edward J. Druillard for breach of promise of marriage. From a judgment for plaintiff, defendant brings error.
    Reversed.

      C. A. Golden and'FT. A. Lockwood, for appellant.

      II. L. Schellenberg (Fred H. Warren and JE. It. Gil-day, of counsel), for appellee.
   Hooker, J.

In an action for breach of promise of marriage, the court permitted plaintiff’s counsel to prove various slanderous statements concerning the plaintiff, made by the defendant to third parties at different places and times, after the relations had ended, in the absence of the plaintiff, as a reason for breaking his engagement and refusing to marry her. There is no doubt that this testimony was admissible under authorities hereinafter cited, but an improper use was made of it. The court instructed the jury that:

“Therefore, if the jury find from the evidence that the defendant wantonly, recklessly, and unjustifiably broke off his engagement with the plaintiff, and you further find from the evidence that, in order to excuse himself for so doing, he made statements regarding her physical condition which would bring her into even greater ridicule and contempt than the mere breaking off of the' engagement would do, and the tendency of which would be to disgrace her and ruin her future prospects and welfare, and you further find from the evidence that such statements were untrue, and that the defendant knew or had good reason to believe them to be false and untrue, and made such statements in bad faith, then you should, in the exercise of a sound and reasonable discretion, award her such additional damages as, in your judgment, she has suffered by reason of the false and slanderous statements so made by the defendant.”

This language was broad enough to lead the jury to understand that they could award full damages for these slanders to the same extent as would have been permissible had the various slanders been counted upon in an action for defamation. It has been said that the testimony was admissible, but it was only for the purpose of showing a bad motive, by way of aggravation of damages, just as willfulness and malice may be shown in a case of tort, to which this class of cases is by the authorities cited said to be analogous in some respects. The proof of these slanders was admissible, not as substantive causes of action, but as explanatory of the act of the defendant in breaking the contract, just as a libel not declared upon is admissible to explain the animus of a defendant in pub. fishing the libel counted upon in an action for defamation. An examination of the authorities will show this. In those jurisdictions where punitory damages are permitted, the rule is that these slanders may be shown as a basis for them. Sutherland says, in his work on Damages (section 987), that circumstances are admissible to show wantonness and ruthlessness, and that she may be allowed, not only full compensation (i. e., for the breach of promise, not slander), but by way of punishment. There is nothing in the quotation from Sutherland cited which, in my opinion, justifies the inference that compensation for the direct injuries occasioned by such slanders is recov-

erable in the action for breach of promise, or that it may not be recovered in an action of slander, despite a previous recovery of legitimate damages in an action for the breach of promise of marriage. In Southard v. Rexford, 6 Cow. 261, the court went no further than to say that a slanderous defense is a circumstance that may aggravate damages. In Kniffen v. McConnell, 30 N. Y. 291, 292, this is the interpretation put upon the opinion in Southard v. Rexford, and it is said that such rule is an anomaly, and “should not be extended further than that case has carried it.” These cases are reviewed in Thorn v. Knapp, 42 N. Y. 474 (1 Am. Rep. 561), showing that these cases stand upon the proposition that, “in an action for breach of promise of marriage, it is always competent, for the purpose of enhancing the damages, to prove the motives that actuated the defendant; that he entered into the contract and broke it with bad motives and á wicked heart.” In Johnson v. Jenkins, 24 N. Y. 252, Judge Allen clearly shows the use to be made of such evidence. He says:

“Every circumstance attending the breaking off of the engagement becomes a part of the res gestee. The reasons which were operative and influential with the defendant are material, so far as they can be ascertained; and whether they are such as, tending to show a willingness-to trifle with the contract and with the rights of the plaintiff, should enhance the damages, or, on the contrary, showing a motive consistent with any just appreciation of and regard for his duties, should confine the damages within the limit of a just compensation, will always be for the jury to .determine. * * * Had the defendant by his declarations shown a wicked mind in the transaction, it is evident that they very properly would have been-submitted to the jury further to enhance the damages.”

In Thorn v. Knapp, 42 N. Y. 479 (1 Am. Rep. 565),. the court said:

“Supposehe had told the plaintiff, at any time before the-trial of the action, that he had discontinued his visits and broken the contract because she was a prostitute; could
she not, upon the saíne principles, have proved this in enhancement of damages ? No damages could be allowed for defaming her by the utterance of these words; but they could be proved as showing the mind with which the contract was broken, and as thus bearing upon the damages to be allowed for that.”

In Chellis v. Chapman, 125 N. Y. 214 (26 N. E. 308, 11 L. R. A. 784), the same doctrine is adhered to, viz., that the damages may be enhanced by proof of breach of contract from bad motives. In Sherman v. Rawson, 102 Mass. 399, the court said: “Damages, it is true, must be awarded solely for the suffering which results from the defendant’s refusal to perform his promise,” — adding that they cannot be justly estimated without taking into consideration the circumstances of the relation and the breach. Baldy v. Stratton, 11 Pa. St. 325, «goes no further; and we have not found a single case that permits full recovery for such slanders as are proven in this case in an action for the breach of promise, or that holds that an action for slander is barred by a judgment upon the breach of promise.

The judgment should be reversed, and a new trial ordered.

The other Justices concurred.


text:
    TOWNSHIP OP WALKER v. THOMAS.
    Drains — Assessment for Benefits — Bill to Enjoin — Laches.
    After the expense of constructing a drain has been incurred, and orders have been issued for the work, it is too late for one who has had knowledge of all the proceedings tp appeal to equity to restrain the assessment and collection of a tax therefor against his lands, upon the ground that they were not benefited by the improvement.
    Appeal from Kent; Grove, J.
    Submitted January 11, 1900.
    Decided March 13, 1900.
    Bill by the township of Walker, Charles W. Wilde, and others against John M. Thomas, drain commissioner of Kent county, and William Whipple, drain commissioner of Ottawa county, to restrain the assessment and collection of a drain tax. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Wolcott & Ward, for complainants.

      W. D. Fuller, for defendants.
   Per Curiam.

The bill in this case was filed to restrain

the assessment and collection of a drain tax. It is claimed that the assessment of the tax was inequitable and unjust, for the reason that it was spread upon lands which had natural drainage in the opposite direction, or which were high lands, and that the township was not benefited, as the public health did not require that this improvement be made. It is claimed that the assessment was made to include the lands of the complainants through a mistake of fact on the part of the drain commissioner. Some of the complainants appeared and objected to the assessment on the day of letting the contract, under section l?40d8, 3 How. Stat. The highway commissioner did not appear. Complainants appealed to the township board, the action of which board was reviewed in this court in Thomas v. Walker Township Board, 116 Mich. 59? (74 N. W. 1048). No appeal was made to equity until the expense of constructing the drain had been incurred and orders issued for the work. It is unnecessary to determine whether the action of the commissioner is reviewable in equity in any case where there is jurisdiction, as we think the complainants are not entitled to invoke equity jurisdiction in a case like the present. Smith v. Carlow, 114 Mich. 67 (72 N. W. 22); Lundbom v. City of Manistee, 93 Mich. 170 (53 N. W. 161).

The decree will be affirmed, with costs.


text:
    VANDERVOLGEN v. MANCHESTER FIRE ASSURANCE CO.
    1. Fire Insurance — Violation of Conditions — Waiver.
    Where an insurance company, on receipt of an affidavit of insured that a fire originated from a lighted lamp held by him while engaged in drawing oil from a tank in his store, wrote insured, denying liability under the policy, and calling attention to the condition therein claimed to have been violated, an objection that the company, by referring to the condition as one relating to the use of coal oil, instead of kerosene, waived the right to rely upon a breach of the condition, is without force.
    2. Same — Use op Kerosene — Special Agreement.
    Where a fire-insurance policy provided in printing that the policy should be void, unless otherwise provided by special agreement, if certain enumerated articles be kept or used on the premises, but which printed provision permitted the use and sale of kerosene oil under certain conditions, the fact that the policy was expressly made to cover a stock of ‘ ‘ paints, oils, * * * and such other goods as are usually kept” in a hardware store, did not onerate to annul the printed provision as to the conditions under which kerosene might be used and sold.
    3. Same — Forfeiture.
    Under the clause of the Michigan standard fire policy providing that it shall be void if there be kept or used on the premises “petroleum, or any of its products of greater inflammability than kerosene oil of thó United States standard (which last may be used for lights, and kept for sale accord ing' to law, but in quantities not exceeding five barrels,, provided it be drawn and lamps filled by daylight, or at a distance not less than 10 feet from artificial light),” a forfeiture is incurred if kerosene be drawn in any other manner than that specified.
    Error to Hillsdale; Chester, J.
    Submitted January 11, 1900.
    Decided March 13, 1900.

      Assumpsit by Henry Yandervolgen against the Manchester Fire Assurance Company on a policy of insurance. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      B. E. Sheldon and O. A. Shepard, for appellant.

      Lockerby & Lockerby and O. C. Johnson, for appellee..
   Montgomery, C. J.

The plaintiff brought an action on a policy of insurance of $1,200 “on his stock of merchandise, consisting mainly of hardware, cutlery, paints, oils, glass, tinware, stoves, agricultural implements, tools, plated ware, harnesses, and such other goods as are usually kept by a hardware merchant in such a village.”' The policy, in its printed portion, contains the following provision:

‘ ‘ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if (any usage of custom of trade or manufacture to the contrary notwithstanding) there be kept, used, or allowed on the above-described premises benzine, benzole, dynamite, ether, fireworks, gasoline, Greek fire, gunpowder exceeding twenty-five pounds in quantity, naphtha, nitroglycerine or other explosives, phosphorus, or petroleum, or any of its products of greater inflammability than kerosene oil of the United States standard (which last may be used for lights, and kept for sale according to law, but in quantities not exceeding five barrels, provided it be drawn and lamps filled by daylight, or at a distance not less than ten feet from artificial light): Provided, a loss shall occur on the property insured while such breach of condition continues, or such breach of condition is the primary or contributory cause.”

The plaintiff signed an affidavit stating the cause of the loss as follows:

“I, Henry Vandervolgen, make the following statement as to origin of the fire of February 16, 1899, by which my property was burned, as near as I can recall the circumstances, to wit: On the evening of February 16, 1899, at about the hour of eight o’clock, I went into the back room of my store, with a lighted lamp in my hand, for the purpose of drawing oil from a tank kept for that.purpose; and, as I was in the act of drawing oil from said tank, something dropped from overhead, striking me on the arm, and knocking the lamp from my hand to the floor, breaking the lamp, and setting fire to the oil from the lamp. I think, when the lamp struck the floor and broke, it was one or two feet from the measure into which the oil was running from the tank. I think I was standing, say four to six feet from the tank when the lamp was knocked from my hand.”

The defendant thereupon wrote, denying liability, and, when action was brought, set up as a defense the violation of this condition. The circuit judge found for the defendant, and plaintiff' brings error.

It is contended first that there was a waiver of the right to rely on this defense by the letter above quoted. It is said that the defendant gave no notice that it relied upon a forfeiture by the use of kerosene oil; that coal oil alone was referred to. The point is too technical. It is perfectly clear that the claim of the defendant could not be misapprehended.

The meritorious question is, What construction should be placed on the contract? Plaintiff contends that the clause in question, by its terms, applies when it is not otherwise provided by agreement indorsed on the policy, and that, by the written portion of the policy, it is made to cover oils and such other goods as are usually kept in a hardware store, etc., and that this is a provision otherwise than in the printed clause. There are numerous cases which support the contention of plaintiff to this extent: When the policy provides that it shall be avoided if the assured keeps articles of a certain class unless otherwise provided, a policy in terms covering such articles, or including them by a designation as “ articles usually kept in a store,” is valid; and in the latter case it may be shown by evidence aliunde that the articles which are designated in the policy as extrahazardous are such as are usually kept in a store. Niagara Fire Ins. Co. v. De Graff, 12 Mich. 124; Fraim v. Insurance Co., 170 Pa. St. 151 (32 Atl. 613, 50 Am. St. Rep. 753); Yochv. Insurance Co., 111 Cal. 503 (44 Pac. 189, 34 L. R. A. 857). The defendant contends, however, that this line of cases does not meet the question here involved, for it is said the printed portion of the policy itself permits the keeping and sale of kerosene, but that what is provided against is that kerosene shall be drawn in the night-time within a specified distance from an artificial light; that this provision is entirely consistent with the fact that the insurance covers kerosene. This view seems entirely sound, and was sanctioned in Gunther v. Insurance Co., 34 Fed. 501.

The question still remains whether the clause in question should be construed to work a forfeiture if the assured does not observe the regulations as to drawing oil. The case of Snyder v. Insurance Co., 59 N. J. Law, 544 (37 Atl. 1022, 59 Am. St. Rep. 625), is cited by plaintiff. The policy contained a provision that it should be void if “there be kept, used, or allowed on the above-described premises naphtha, or petroleum, or any of its products of equal or greater inflammability than kerosene oil of legal standard (which last may be used for lights only, provided the oil be drawn and the lamps be trimmed and filled solely by daylight).” The court, by a somewhat strained construction, held the parenthetic clause to be a regulation of the use of kerosene for lights only, and not to relate to or prohibit other uses of kerosene. The question in this case is different. By the parenthetic clause in this policy the use for lighting purposes or keeping for sale is not prohibited, but it is provided that the oil be drawn by daylight, or not less than 10 feet from artificial light. This language is plain and unambiguous. We cannot doubt that it was intended to and' should be construed as providing a forfeiture for the drawing of kerosene in any other manner than that provided. The circuit judge placed this construction on the contract, and his judgment is affirmed.

The other Justices concurred.