text:
    BLACK v. HERBERT.
    1. Contracts—Sale or Monument—Delivery.
    A monument sold, “to be delivered and set up” in a specified cemetery, is not delivered, so as to give the purchaser the right of rejection because of defects therein, until its erection at the place where it is designed to be used, and its tender to the purchaser as complete.
    2. Same—Incidental Variance—Right or Rejection.
    The purchaser under a contract for the sale of an expensive monument and several inexpensive marker^cannot exercise the right of rejection as to the entire contract merely because the markers furnished are not of the specified size, where the seller promptly supplies their place with others of the size required.
    Error to Allegan; Padgham, J.
    Submitted January-12, 1897.
    Decided February 18, 1897.

      Assumpsit by Asbury Black and another against Henry Herbert for the contract price of a monument. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      G. R. Wilkes, for appellant.

      Philip T. Colgrove, for appellees.
   Grant, J.

On December 4, 1894, plaintiffs made a ■written contract with the defendant by which they agreed to furnish him “one monument after design Henika, of gray granite [giving the dimensions and inscriptions]; also three granite markers; the said monument to be delivered and set up in the E. Martin Cemetery, on or before May 15, 1895, or as soon thereafter as possible, in a good and workmanlike manner.” The price was $175. The other terms of the agreement are immaterial. Defendant, soon after its execution, requested some changes, which were agreed upon. Plaintiffs claimed that they had delivered and completed the monument in accordance with the terms of the contract. Defendant claimed that they had not, and refused to accept or pay for it. Plaintiffs brought suit to recover. The parties gave testimony tending to support their respective claims. The jury, under the order of the court, went to the cemetery, and viewed the monument. Verdict and judgment were for the plaintiffs.

. Three facts are settled by the verdict against the defendant : (1) That the monument was in compliance with the contract; (2) that it was constructed and delivered as soon as possible; (3) that the defendant waived a cap of a different design than the one called for by the contract.

The first and principal question in the case is: Had the defendant the right to reject the monument after it was placed in the cemetery, but before it was erected, on the ground of certain defects ? To state the question conversely: Had the plaintiffs the right to remedy defects before tender and formal delivery ? Plaintiffs sublet the contract to one Fox, in Concord, N. H., who made the monument and shipped it. On its arrival, plaintiffs sent their agent to pht it in place. Before this was done, and on June 4th, defendant went to the cemetery, and, upon seeing the monument, stated to the agent that it was not what the contract called for. The agent admitted that there were defects in it, and that defendant was not obliged to accept it in its then condition, but informed him that -the defects could be remedied. June- 13th, defendant wrote plaintiffs as follows: “I have suffered all the vexations and unnecessary delay and blunders I am willing to bear in regard to that monument; so you may consider our contract void, and I wish you would remove the same at once from our lot.” July 14th, defendant, in response to a letter from plaintiffs, met their workman, a Mr. Walker, in the cemetery. They discussed the question of remedying the defects, but defendant testified that he declined to give any directions about it. On the next day, Mr. Eldred, plaintiffs’ agent, saw defendant, and said to him, “Mr. Walker tells me you would not let him fix the monument,” to which defendant replied, “I did not hinder him from fixing it, but I told him I would not direct him.” July 22d, Mr. Black, one of the plaintiffs, met defendant, by agreement, in the cemetery. Mr. Eldred also was present. Defendant objected to Mr. Eldred’s presence, and declined to stay there, and talk the matter over, unless Eldred went away. Black replied that he did not care whether he (defendant) stayed or not, but that he (Black) could measure it, and find what was wanted. No conversation after this occurred. Several letters passed between them, but we do not consider them material. We will assume that there was evidence to show that defendant, upon first seeing the monument, informed plaintiffs that he would not accept it. The markers were too short, were returned to Mr. Fox, and others of the agreed length furnished. Defendant stated that both he and his wife liked the cap as well as or better than the one specified by the contract; that' he found no fault with the cap as far as the design was concerned; and that the only question was as to the workmanship. Plaintiffs gave evidence tending to show that the defects in the monument could be, and were, remedied, by a few hours’ work.

Defendant insists that this case is ruled by American White Bronze Co. v. Gillette, 88 Mich. 231. He insists that the delivery was made the moment that the monument was taken to the cemetery. Plaintiffs insist that the delivery was not made until the monument was in place, and that they had the right to remedy any defects before delivering and tendering it as complete. The Gillette Case is clearly distinguishable from this,' in that a material part of the inscription had in that case been omitted. It could not be changed except by making an entirely new monument. The first one had been delivered and tendered as complete. Mr. Gillette promptly notified the plaintiff that he refused to accept the monument, and that he rescinded and revoked its order, and declined to accept any other proposition. The company-removed the monument, cast and put in place a second, which also was defective. They removed this, and put up a third, for which they brought suit. Had the first monument been of granite, and that part of the inscription omitted could have been chisled in so as to comply with the contract, the case would have been like this. As the court said to the jury in this case, the monument could have been made anywhere, and rough blocks of granite could have been taken to the cemetery, and the monument there completed. It is not good law nor good sense that a party, under such circumstances, could not remedy a defect, and thus complete his contract. The plaintiffs did not make a formal tender and delivery until they had made the monument so as to comply with the contract. Had they delivered it without remedying the defects, and without producing markers of the length required, there could, of course, be no recovery. If, when the defendant saw the monument as the plaintiffs were putting it in place, he had absolutely refused to accept it when the defects were remedied, he would still be liable. The fact that the markers were not of the length required did not prevent the plaintiffs from supplying their place with others of the proper length. The monument was the principal thing. If A. contracts to build a house and fence for B. within a specified time, and the house is completed, but the fence posts are not of the length contracted for, can B. reject the entire contract if A. is willing to, and does, provide other posts and complete the fence? The difficulty with the defendant’s position is in assuming that there was a delivery when the monument was deposited upon the ground" in the cemetery, whereas, in fact, there was no delivery, and could not be, until the monument was set in place. Until this was done, it was under the control of the plaintiffs, and subject to any changes which could be made so as to complete it according to contract,

Having determined that the monument was in compliance with the contract, the only other questions were whether the plaintiffs had completed it within the time prescribed, and whether there was a waiver of the particular cap. We think there was evidence to support all the points upon which the case was left to the jury, and that there was no error in the charge.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    SHANK v. WOODWORTH.
    1. Statute of Limitations—Amendment to Plea.
    An application for leave to amend a plea of the general issue by giving notice of the statute of limitations is addressed to the discretion of the court, and its denial will not be reviewed on appeal.
    2. Same.
    The statute of limitations is not available as a defense unless notice thereof is given with the plea.
    3. Discontinuance—Bar.
    A mere discontinuance by the plaintiff is not a bar to another suit.
    4. Justices of the Peace—Docket Entry—Settlement—Evidence.
    A recital in the docket of a justice of the peace on discontinuing an action that the matters in issue have been settled is not evidence of such a settlement, as the statute does not require such an entry to be made.
    Error to Ingham; Person, J.
    Submitted January 15, 1897.
    Decided February 18, 1897.

      Assumpsit by Robert B. Shank against Electa Wood-worth for goods sold and delivered. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Arthur D. Prosser, for appellant.

      Sindlinger & Mosher, for appellee.
   Grant, J.

Suit to recover $13.11 for goods sold and delivered. Plaintiff recovered verdict and judgment in justice and circuit courts.

The plea was the general.issue. In the circuit court the case was continued over one term. At the next term, the case being ready for trial, defendant asked leave to amend her plea by giving notice of the statute, of limitations. The motion was denied. This was within the discretion of the circuit court, and will not be reviewed upon appeal. Ripley v. Davis, 15 Mich. 75 (90 Am. Dec. 262).

It is urged that the evidence shows a claim barred by the statute of limitations, and that for this reason the court should have directed a verdict for the defendant. The statute can only be taken advantage of by plea. Whitworth v. Pelton, 81 Mich. 101.

It appears that plaintiff was in partnership with his brother when these goods were sold, that the firm sued the defendant, that the parties appeared, and on July 7, 1887, the justice made the following entry upon his docket: “The parties to this suit having settled the matters in issue since last adjourned day, this suit, on motion of the plaintiffs, was discontinued, with costs to the plaintiffs, taxed at $2.10.” It is insisted that this was a bar to the present suit. A discontinuance by the plaintiff is not a bar to another suit. If there was a settlement, the justice’s docket was not evidence of it. The statute does not require this entry. The justice testified that the settlement was made out of court, and he knew nothing about its terms. Tucker v. Rohrback, 13 Mich. 73; Franks v. Fecheimer, 44 Mich. 177.

The judgment is affirmed.

The other -Justices concurred.


text:
    SHERROD v. COSTIGAN.
    Married Women—Separate Estate—Promissory Notes.
    Whether a married woman’s promissory note, which recited that it was given for value received by her since she became the sole owner of a stock of groceries formerly belonging to her deceased son, had reference to her separate estate, is a question for 'the jury, upon evidence that the note was in payment of rent for the store building, and that she had purchased the goods and was in possession when the note was given, and had owned the stock for a long time.
    Error to Wayne; Aldrich, J., presiding.
    Submitted January 15, 1897.
    Decided February 18, 1897.

      Assumpsit by Cyrus A. Sherrod against Therese L. Costigan and Eugene Costigan upon promissory notes. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      George C. Green (F. F. Bacon, of counsel), for appellants.

      William B. Jackson, for appellee.
   Grant, J.

The defendants are husband and wife. This suit was commenced in justice’s court, based upon two promissory notes, for $63 each, upon one of which a payment had been made. The notes read as follows: “Six months after date, I promise to pay to the order of C. A. Sherrod $63, * * * with interest, value received by me since I have become the sole owner of the stock of groceries formerly belonging to the estate of C. L. Costigan.” This was signed by defendant Therese, and indorsed by defendant Eugene, as follows: “I hereby guarantee the payment of the within note, waiving notice of protest.” Plaintiff recovered verdict and judgment in both courts.

C. L. Costigan was the son of the defendants, and kept a grocery store and saloon. After his death, defendant Eugene was appointed administrator, and testified that, as such', he continued to carry on the business of his deceased son for the benefit of his estate, notwithstanding he showed no authority for doing so, and took out the liquor tax receipt in his own name. He attended to the saloon, and his wife to the grocery. Plaintiff owned the building. Eugene executed a lease to him in the name of C. L. Costigan, his son who was dead; plaintiff, however, supposing that to be the name of the defendant, and that he was the one who executed the lease. Therese and her husband testified that she purchased from him, as administrator, the stock of goods and business, shortly before giving the notes. The defense was that these notes had no reference to her own property, and that, therefore, she, being a married woman, was not liable. The court instructed the jury that plaintiff could not recover unless the undertaking sued upon had reference to her sole property, or unless she purchased the, property, and that the rent for which these notes were given was a part of the consideration for the purchase. It is claimed that there was no testimony upon which to base this instruction. We cannot concur in this view. She had purchased the property at the time the notes were given, and was in possession of the building. There was evidence tending to show that Mrs. Costigan had owned the stock for a long time. The inferences to be drawn from all the evidence were properly left to the jury, who were carefully instructed as to the rules, applicable to the case.

The judgment is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    VIER v. CITY OF DETROIT.
    1. Adverse Possession—Color oe Title.
    Adverse possession need not be based upon color of title.
    3. Same—Public Alleys.
    Title by adverse possession may be acquired to land laid out for a public alley.
    3. Same—Bill to Quiet Title.
    An individual who, for the statutory period, has been in the exclusive possession of land claimed by a city to be a public alley, has a sufficient title to maintain a suit in chancery against the city claiming the easement, under 3 How. Stat. § 6636, authorizing the filing of a bill to quiet title to real estate by persons having the legal or equitable title thereto.
    4. Equity—Parties—Estoppel.
    A city is not entitled to a dismissal of a bill against it to quiet title to land laid out for an alley, on the ground that it has no control over the alley, and therefore is not a proper party, where it asserted in its answer its right and authority in the premises.
    Appeal from Wayne; Carpenter, J.
    Submitted January 15, 1897.
    Decided February 18, 1897.
    Bill by August Yier against the city of Detroit, and James Dean and others, constituting the board of public works, to quiet title. From a decree for complainant, defendants appeal.
    Affirmed.

      Gray & Gray, for complainant.

      Frank A. Basch, City Attorney, for defendants.
   Hooker, J.

This case seems to possess the essential features of that of Vincent v. City of Kalamazoo, ante, 230. The complainant owned lot 12 of block 44 of the Cass farm, in the city of Detroit, said lot being 42.04 feet wide. Running through this block is a strip of land which defendants claim to be a public alley, and of this a strip 7.96 feet wide, adjacent to lot 12, has been occupied with said lot by the complainant and his predecessor, from whom he took a quitclaim deed, and was put in possession of said strip at the time he acquired title to the lot. The evidence of exclusive possession for many years more than the statutory period is clear, and it appears that, when the complainant commenced a permanent improvement upon the disputed strip, the city authorities ordei*ed him to desist, upon the claim that it was public ground and part of a public alley. Thereupon the complainant filed this bill to settle the question.

Counsel for the city contends:

1. That this is a bill to restrain a trespass, and that there is an adequate remedy at law.

2. That the complainant’s claim is not based upon any paper title.

In our opinion, this is something more than a bill to restrain a threatened trespass. The city threatened no trespass, but made a claim, of title to an easement in the land, rendering it imprudent for the complainant to erect his contemplated brick structure thereon until the question should be settled. He thereupon filed this b’ill to quiet his title, and we think that he was warranted in so doing by 2 How. Stat. § 6626, the object of which -section has been held to be “to enable persons in possession of real estate, and having the legal or equitable title thereto, to remove all doubts as to the validity of their titles arising from the claims of other persons who are taking no steps to test the validity of their claims either in law or equity.” See note to section 6626.

Upon the other point it occurs to us to say that the statute is not limited to persons holding under paper titles. It includes all legal titles, and titles by adverse possession are legal titles. Nor do we know of any case that sustains defendants’ contention that adverse possession must be based upon a paper writing. In the case cited (Marble v. Price, 54 Mich. 466), it is not so held, but it is said that the occupancy was without claim or color of title. See, also, Hyne v. Osborn, 62 Mich. 235; City of Big Rapids v. Comstock, 65 Mich. 78. In Campau v. Lafferty, 50 Mich. 114, it is said that “adverse possession need not be based on color of title, and it may become perfect even though the possessor originally had no shadow of title.”

We think that title by adverse possession may be acquired to land laid out for an alley, as well as to that within the boundaries of a public street.

Counsel now seems disposed to admit that the city has no right of control over a public alley in Detroit, and argues that, if the city has no control over the alley, the complainant and his grantor cannot acquire rights in the alley by adverse possession as against the city of Detroit, and therefore the city was not a proper party, and the bill should be dismissed. This is hardly consistent with the other contention, and certainly not with the allegations of the answer, which asserts the right and authority of the city in the premises. A disclaimer would have been a proper pleading, if the claim now made was relied on when issue was joined.

The decree of the circuit court in chancery is affirmed, with costs.

The other Justices concurred.


text:
    McDONALD v. PRESTON NATIONAL BANK.
    1. Sale—Election op Remedies.
    One who takes a chattel mortgage for the purchase price of goods shipped by him, and brings a suit in chancery to protect his security and for the appointment of'a receiver, and an action in assumpsit to recover the entire amount claimed to be due, will be held to have elected to treat the title to the property as in the debtor, and to be estopped from thereafter maintaining an equitable proceeding against the receiver based on the theory that title had not passed.
    2. Same—Principal and Agent—Laches.
    The seller cannot avoid the estoppel on the ground that the goods were shipped by an agent, and that the latter had made the election to treat the consignment as a sale while in poor health only a short time before his death, and that the theory had been maintained for several months by the principal because he had no knowledge of the terms of the transaction, where the correspondence relating thereto was under the principal's control, and the precise terms might have been promptly ascertained.
    8. Recording Laws—Assignment op Accounts.
    An assignment of open accounts as security is not within the recording laws, buk is valid without recording if made bona fide and without intent to defraud.
    4. Same—Mortgages—Fraud.
    The fact that an agreement of defeasance accompanied a warranty deed absolute in form given as security, and that the deed alone was recorded, raises no inference of fraud.
    Appeal from Wayne; Carpenter, J.
    Submitted January 15, 1897.
    Decided February 18, 1897.
    Bill by Charles S. McDonald, trustee, and the Meyer Rubber Company, against the Preston National Bank, Albert L. Stephens, and Clarkson M. Snedicor, to determine the construction and validity of a chattel mortgage to the defendant bank, -for a marshaling of securities, and for the appointment of a receiver. From a decree establishing the priority of the lien of the bank, complainants appeal.
    Affirmed.
    Defendant Snedicor had, for a long time prior to 1894, been engaged in the mercantile business in the city of Detroit, and for about a year had been a borrower of money at the defendant bank. In February of that year his indebtedness to the bank was $49,500, for which security was demanded.- In order to secure such indebtedness, Snedicor, on February 24th, executed a warranty deed to defendant Stephens on certain lands in the city of Detroit. The deed contained no clause to show that it was in fact a mortgage, or that Stephens held it in trust. The consideration expressed in it was $49,500. On the same day Stephens executed to Snedicor a declaration of trust, or agreement of defeasance, reciting that the deed was executed upon the condition that Snedicor should pay the bank the above sum, according to certain promissory notes and renewals thereof, and, all and singular, any other indebtedness that might thereafter be at any time due or owing to said bank. The deed was promptly recorded, but the declaration of trust was not. Snedicor was then indebted to other parties, whom he was desirous of paying, and, to enable him to do this, the bank at the same time loaned him $25,000 more, and took from him as security an assignment of his accounts then outstanding, and also those which should be afterwards acquired. This money was used for the purpose intended, and with it Mr. Snedicor paid all his other debts. These papers were drawn by the attorney for the bank, and were by Mr. Snedicor submitted to his attorney, and approved by him, before execution. Both attorneys are gentlemen of high standing in the profession. After this transaction, and before December following, Mr. Snedicor purchased largely, and among his creditors was the 'complainant the Meyer Rubber Company, for the sum of about $18,000. Mr. Snedicor did not prosper, and failed to pay his notes at the bank, which, about the last of November, demanded further security. On December 5th he executed to the bank a chattel mortgage on all his goods and accounts for $39,000. The amounts secured by this mortgage, as expressed therein, were as follows: “$2,000 on demand, this day loaned; $15,000 this day advanced to pay two demand notes of $7,500; $10,000 due December 13, 1894; $7,500 due December 7, 1894; $4,500 due December 20, 1894.” The mortgage also included all bills, accounts, notes, and obligations at any time made or incurred or to be owing by him to the bank, and was subject to the assignment of the accounts above mentioned. On the same day Mr. Snedicor executed to complainant McDonald, as trustee, a chattel mortgage on the same property, to secure his other creditors, including the rubber company. Both mortgages were duly filed, the bank mortgage being first filed. The bank took possession under its chattel mortgage, and was proceeding to foreclose. On December 24, 1894, complainants filed their bill in chancery for three purposes:
    1. To appoint a receiver.
    2. To determine the construction and validity of the chattel mortgage to the bank.
    3. To compel the bank, if its mortgage should be valid, to first resort to the real estate and accounts, upon which complainants had no lien.
    Defendant Stephens was appointed receiver. Under the direction of the court, the receiver proceeded, evidently with the assent of all the parties, to foreclose the real-estate mortgage, to collect the good accounts, and to sell the property and the uncollected accounts. The amount received from the foreclosure óf the real-estate mortgage was applied towards the payment of the specific notes secured thereby. The receiver, out of the moneys received from the sale of the other property, by stipulation, paid to the bank the notes secured by its chattel mortgage. After deducting the amounts so paid, and the receiver’s allowances, there remained in his hands, subject to the final order of the court, $5,588.49. On July 27, 1896, the complainant rubber company filed a petition against the receiver, asserting that the title to the goods which it had sold Mr. Snedicor, and which were on hand at the time of his failure, had not passed to Snedicor, but remained in it; that the value of the goods so remaining, and which came into the hands of the receiver, was about $5,000,—and praying that the receiver ' be required to pay to it the amount received from the sale of said goods. There is still due to the bank the sum of $12,729.50. The court found that the bank was entitled to have the balance now in the hands of the receiver paid to it, and entered a decree accordingly.

      C. JS. Warner, for complainants.

      Julian G. Dickinson (John D. Conely, of counsel), for defendants.
   Grant, J.

(after stating the facts.) Is the Meyer Rubber Company entitled to the amount realized from the sale of the goods sold by it to Snedicor, which passed into the hands of the receiver, on the ground that the title to the goods unsold remained in that company ? A further statement of facts is necessary, in determining this question. This company was a corporation organized under the laws of New Jersey, and doing business in New York and Chicago, its principal office being in New York. One Preston was its general agent at Chicago, and had the entire charge and control of its business there, and was authorized to sell goods. The original contract made through Preston for the sale of goods to Snedicor was dated April 2, 1894, and was the result of prior conversations and correspondence between them. By this contract the title was not reserved. A supplementary verbal agreement was made between them. On June 8th Snedicor wrote to Preston, stating that he was ready to send an order for about 2,000 cases of goods, but, before sending it, he desired that this verbal agreement should be definitely understood, and stated his version of it. In reply, Preston wrote, stating that his interpretation was correct, and in the letter said, “Of course, the original eases will, from time to time, belong to us, or be covered finally by a final settlement, as we wrote you first.” The entire amount of the goods shipped to Snedicor was included in the chattel mortgage. Preston went to •Detroit before the bill was filed, and caused this suit to be commenced; himself signing the bill of complaint as agent, and also the verification to it. Preston died April 27, 1895. May 27, 1895, the rubber company, by advice of its attorney, thinking to obtain some benefit by a judgment at law, brought suit in the circuit court for the county of Wayne, and on July 17, 1895, recovered a judgment in the sum of $18,669.82,—the full amount of its claim. Early in January, 1896, an officer of the company in New York wrote to its agent in Chicago to hunt up the correspondence between Preston and Snedicor. The agent did so, and on January 20, 1896, the correspondence was received at the New York office. Before the petition was filed, these goods, with the others, had been sold by the receiver. The rule of law, as stated in Black v. Miller, 75 Mich. 323, is conceded by the learned counsel; but he insists that these proceedings were not taken by the rubber company with knowledge of the above provision of the contract as to the title, and that, therefore, it is not precluded from asserting its claim. The knowledge and acts of Preston bind the company. It is not to be inferred from the fact that Preston was a man of large business, and that he was in poor health at the time the chattel mortgage.was given and-the chancery suit commenced, that he was not aware of the terms of the contract. The taking of the chattel mortgage, the bringing of suit in chancery, and of the suit at law, are inconsistent with any other theory than that the title had passed. The creditor, the debtor, other creditors, and the receiver had acted upon the theory that the title had passed. The written contracts were on file in the company’s office, and there is no evidence to show that Preston was not familiar with the terms of sale. The rubber company was also fully informed of the terms of the sale, made by the receiver. If, however, it were true that the company had no actual knowledge of the precise terms of the sale made by its agent, it is in evidence that it did know that Preston did - sometimes make consignment of goods precisely as is now claimed. It was therefore its duty to act promptly in ascertaining what the contract was. The correspondence was under its control, and could have been had by writing for it. Its delay was not excused. Preston elected to treat the transaction as a sale, and his election bound his principal. We think the case is ruled by Thomas v. Watt, 104 Mich. 201, and cases there cited.

It is claimed that the taking of security by the deed, • the declaration, and the assignment of the accounts was in fraud of other creditors. There is no testimony to show that Snedicor or the bank acted in bad faith, or with any design or thought of defrauding his future creditors. The one gave and the other received securities such as the law authorizes. The law does not provide for recording or filing an assignment of accounts. Such an assignment or security is therefore valid when made bona fide and without intent to defraud. Preston Nat. Bank of Detroit v. George T. Smith Middlings Purifier Co., 84 Mich. 364. Even if there had been no declaration of trust, the deed was in- fact a mortgage, and could have been enforced as such without the declaration. Jeffery v. Hursh, 58 Mich. 257. The transaction was not a fraud in law. . Fraud will not be inferred from the mere fact that the terms of the security were not stated in the deed, or that the declaration of trust was not recorded.

It is unnecessary to determine whether the chattel mortgage covers any more than the $39,000. The circuit judge correctly held that the chattel mortgage was distinctly made subject to the prior assignment of the accounts, and that a larger amount than the surplus in the hands of the receiver was realized from the'collectible accounts. The bank therefore had a prior valid lien, and the amount in the hands of the receiver was properly ordered paid to the bank.

The decree is affirmed, with costs.

The other Justices concurred.


author: Moore, J.

text:
    MUIRHEAD v. BERGLAND.
    Taxes—Petition eor Sale oe Land—Hearing—Continuance— Jurisdiction to Enter Decree.
    Section 59 of the tax law of 1889 ( 3 How. Stat. § 1170/8), providing that if, from any cause, the hearing on the petition of the auditor general for a decree against delinquent lands should not be had on the day fixed in the notice, the same should stand continued from day to day during the term, without the entry of any order of continuance, and if, from any cause, no decree should be made on such petition, the auditor should, as soon as practicable, file a new petition, did not operate to continue the case beyond the term, and, by adjourning for the term without having entered any order of continuance, the court lost jurisdiction to enter a decree until a new petition should be filed.
    Appeal from Kalkaska; Aldrich, J.
    Submitted October 20, 1896.
    Decided February 18, 1897.
    Bill by Peter Muirhead against Gunlek A. Bergland and Louis Sands to quiet title. From a decree for complainant, defendants appeal.
    Reversed.

      William D. Totten and Cassius M. Phelps, for complainant.

      Smurthivaite & Fowler, for defendants.
   Moore, J.

The complainant filed a bill to quiet title to 40 acres of land which he claims to own. His title is obtained through a tax deed. Nearly all the questions involved in this case were considered and determined in the case of Muirhead v. Sands, ante, 487. The only other question necessary to discuss grows out of the following facts: The auditor general filed his petition for a decree' for a sale of the land in controversy, and in the. petition notice was given that a hearing wodld be had before the circuit court for the county of Kalkaska on the third Tuesday of January, 1892. No appearance was made, and no notice of contest was filed in the case. The court was opened on the third Tuesday of January, and on the same day was adjourned until the 22d day of March, at which date court was opened, and was doubtless adjourned the same day, sine die, though the court journal does not contain an entry of adjournment. No formal order was made continuing the case from day to day, or over the term, and on the first day of the April term, a decree was entered in the case.

Section 59, Act No. 195, Pub. Acts 1889, under which this proceeding was had, provides:

“If, from any cause, the hearing on said petition is not had on the day fixed in the notice therefor, the same shall stand continued from day to day during the 'term, without the entry of any order of continuance, until disposed of. * * * If, from any cause, no decree shall be made on such petition as to the taxes therein named, or any part thereof, the auditor general shall, as soon as practicable, file a new petition for decree and sale, and proceedings thereon shall be the same and a decree and sale made as herein provided.”

It is the claim of defendants that, when the January term adjourned without day, the court lost jurisdiction to make a decree in the case, until a new petition was filed by the auditor general. The cases were continued from day to day, without the entry of any order of continuance, simply by virtue of the statute. But the statute does not provide for such a continuance beyond the term. In the absence of any formal order continuing the case until the subsequent term, we think the court lost jurisdiction until a new petition was filed.

Decree is reversed, and bill dismissed.

The other Justices concurred.


author: Montgomery, J.

text:
    CAIN v. BROWN.
    1. Quo Warranto—Mandamus to Compel Filing op Information —When Granted.

      Mandamus will not issue to a prosecuting attorney to compel the filing of an information in .the nature of a quo loarranto, at the instance of a private person, unless the facts mating a case for interference on the part of such officer are cleai'ly made to appear by affidavit in such way as to render the affiant guilty of perjury if any material allegation is false.

      2. Municipal Corporations—Dissolution—How Effected.
    A municipal corporation can cease to exist only by legislative consent or pursuant to legislative provision, and a failure for a term of years to exercise the functions of a municipality does not effect a dissolution.
    3. Same—Validity of Proceedings.
    Proceedings for the vacation of an incorporated village under 1 How. Stat. § 3080 et seq., are invalid unless based upon a proper petition to the council as therein provided.

      Certiorari to Lapeer; Smith, J.
    Submitted January 5, 1897.
    Decided March 10, 1897.

      Mandamus by Emily L. Cain and others to compel William E. Brown, prosecuting - attorney of Lapeer county, to file an information in the nature of a quo warranto against the acting officers of the village of Attica, From an order granting the writ, respondent brings certiorari.

    Reversed.

      T. J. Kohler (John D. Conely, of counsel), for relators.

      Geer, Williams & Halpin, for respondent.
   Montgomery, J.

This proceeding originated in the circuit court of Lapeer county, where an application was made by the relators for a writ of mandamus, directed to the respondent, requiring him to file an information in the nature of a quo warranto against David Donaldson and other officers of the village of Attica, in Lapeer county. The writ of mandamus was directed to issue by the circuit judge, and that order is brought before us for review on certiorari.

The petition set up the fact that the relators were taxpayers and resided within the territory which is claimed to' constitute the village of Attica. It appears from the petition that, by Act No. 311 of the Local Acts of‘1885, certain territory in the township of Attica was organized into the village of Attica. The relators claim that a petition was circulated in the year 1890, asking for a vacation of the incorporation of said village, and that an election was held in the spring of 1891, at which election a majority of the votes cast upon the subject declared in favor of the vacation; that, from that time until 1895, no elections were held, but that in the spring of 1895 an election was held and officers chosen; and that again, in 1896, an election was held, and the respondents were chosen officers of the corporation.

This application was made on the 19th of May, 1896. It set up the fact that a petition was circulated and signed, but whether the same was signed by a sufficient number to constitute a majority of those who voted at the preceding election appears on information and belief. The petition did declare that a petition was prepared, and that it was signed by a certain number. It also disclosed that this petition was mailed to Daniel West some eight or nine months prior to the time of the alleged election, the said Daniel West being at the time president of the village. It was also shown that certain notices were posted in the village before the election was held. It also appeared by affidavit that at the election 41 votes were cast, of which 21 were announced as in favor of the proposed vacation, and 20. against. No record of this proceeding has been discovered or is produced. ' No filing of a petition is shown, and the records were néver deposited with the county clerk.

The respondent, in his answer to the petition in the court below, stated that, in his opinion, a mandamus ought not to issue to compel him to file an information, for the reason that he considered the evidence presented to him insufficient; that, among other things, the evidence fails to show that the petition necessary for the council to act upon was ever presented to the council, but that, on the contrary, it appears that no person who saw said petition after it was mailed to Daniel West, some eight or nine months prior to the time that the alleged election was held, has ever been found; that it does not appear that the council ever acted upon that or any other petition, and does not appear how many qualified voters were in the village of Attica, as shown bj^ the poll list of the then last preceding election; and that the relators have not made such a precise and positive showing as should entitle them to a writ of mandamus as prayed for. The respondent further showed that'a petition signed by 57 residents of the village of Attica had been presented to him, stating that the best interests of the village would be subserved by allowing the people to continue the exercise of their corporate rights, and that another petition, signed by other citizens, and to the same purport, was afterwards received by him. The respondent further states that he has no interest whatever in the matter, save that of faithfully discharging the duties of his office, and that, in his opinion, the evidence presented to him is insufficient to warrant him in filing an information in the nature of a quo warranto, but, on the contrary, that it is his opinion that the public interests demand that such an information should not be filed.

It is the settled doctrine that caution is exercised by the courts in granting leave to file an information of this character at the instance of a private party, where §uch private party has no special •interest, except one which is common to all citizens alike. 19 Am. & Eng. Enc. Law, 665. And in this State it has been held repeatedly that the attorney general or prosecuting attorney has a legal discretion in determining whether an information shall be filed. In Coon v. Attorney General, 42 Mich. 65, the question was raised, but not decided, whether the court would in any case compel the attorney general to file an information against his own judgment; but in Lamoreaux v. Attorney General, 89 Mich, 146, it was held that, where the facts were made to appear clearly, such action might be compelled. But it was held in that case, following the case of Vrooman v. Michie, 69 Mich. 42, that the rule is inflexible that, before such action may be compelled at the suit of a private person, there must be affidavits so full and positive, from persons knowing the facts, as to make out a clear case of right, in such a way that perjury may be brought if any material allegation is false; that the law requires a precise and positive showing before the court will interfere with the action of the public official charged with the duty of filing an information.

It is said in the brief of relators’ counsel that the failure of the people to hold an election from 1891 to 1895 is convincing evidence that the action vacating the incorporation was taken, and many cases are cited holding that where people have organized themselves under color of law into a municipal body, and have gone on exercising their franchises, their rights are regarded as depending quite as much on their acquiescence as upon the regularity of their origin, and no ex post facto inquiry can be permitted to undo their corporate existence; and it is argued that the converse of this proposition should be true; that, where an existing corporation has ceased to act, it should not be permitted the people to resume corporate functions.

In 1 Dill. Mun. Corp. § 112 (4th Ed. § 168), the rule is laid down that-

“ Unless otherwise specially provided by the legislature, the nature and constitution of our municipal corporations, as well as the purposes they are created to subserve, are such that they can only be dissolved by the legislature, or pursuant to legislative enactment. They may become inert or dormant, or their functions may be suspended, for want of officers or of inhabitants; but dissolved, when created by an act of the legislature, and once in existence, they cannot be, by reason of any default or abuse' of the powers conferred, either on the part of the officers or inhabitants of the incorporated place. As they can exist only by legislative sanction, so they cannot be dissolved or cease to exist except by legislative consent or pursuant to legislative provision.”

This, we think, is a correct statement of the law upon the subject, and it follows from this that the relators, before invoking the aid of the court, should be prepared to show that the village of Attica was dissolved in 1891, by action taken according to the provisions of the statute.

Among the cases cited by the relators’ counsel is that of Fractional School District v. Joint Board of School Inspectors, 27 Mich. 3, in which the court refused, after a lapse of less than two years, to entertain certiorari to test the legality of the organization of the district. The reasons for this action are manifest. Rights had become vested, action taken, and liabilities incurred by a de facto organization, and public policy would not be best conserved by an inquiry into the regularity of the proceeding. These considerations do not apply with equal force to an attempted vacation of the corporation, and, if the principle of the case is to have application to the one under consideration, it would militate against the position taken by relators’ counsel; for it appears that from February, 1895, to May, 1896, there were de facto incumbents of the office of councilman, and an organization levying taxes and holding elections within the village.

We think that, under the showing presented by the relators, it did not appear by clear and cogent testimony that the petition alleged to have been forwarded to Daniel West was ever in fact presented to the council for action, or that the council, in submitting the question of vacating the corporation, acted upon that or any other petition. It does, perhaps, sufficiently appear that the village council called an election; but we think it can hardly be said to be a conclusive inference or a necessary inference that in doing so they acted upon a petition which it does not appear was ever placed before them, but was mailed to the president nine months before the action was taken. We think the prosecutor did not abuse his discretion, and that the writ of mandamus should not issue.

Judgment reversed.

The other Justices concurred.


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    PRINGLE v. MILLER.
    1. Witnesses—Impeachment.
    A witness who testifies on cross-examination that he has no recollection of having made certain statements to third persons conflicting with his testimony upon a material issue may be impeached by the persons mentioned, even though he does not directly deny having made such statements.
    2. Trial—Remarks of Counsel.
    To permit counsel, over the objection of opposing counsel, to tell the jury what he could have proved by certain witnesses, whom he might have called had he seen fit to do so, is reversible error.
    Error to Wayne; Donovan, J.
    Submitted January 5, 1897.
    Decided March 10, 1897.
    Case by William N. Pringle and another against George J. Miller for deceit. From a judgment for plaintiffs, defendant brings error.
    Reversed.

      Wilkinson & Post, for appellant.

      Henry M. Duffield, for appellees.
   Hooker, J.

The defendant, being the owner of a certain messuage, sold the same upon contract to a Mrs. Stork. The plaintiffs, being desirous of purchasing the same, negotiated with the husband of Mrs. Stork, and finally purchased the property. They subsequently brought this action against the defendant to recover damages for alleged deceit in certain representations alleged to have been made by the defendant prior to their purchase, when interrogated in relation to the condition of the premises, at a time when and under circumstances showing that he knew of their contemplated purchase.

Mr. Stork was called as a witness for the defendant, and testified to the negotiations between himself and the plaintiffs, and that an agreement was made by the plaintiffs to purchase; that five dollars was paid upon it, and a time was fixed to close the matter up, when he was to have the defendant there to give his assent to the transfer of Stork’s interest. He stated that he made no representations concerning the place, and that he did not hear Mr. Miller, the defendant, make any. On cross-examination the witness was asked: “Didn’t you tell Mr. Olf, shortly after this sale, at his place of business, that you had gotten rid of a mighty poor bargain, and that you were glad to get that house off your hands?” And he was also asked: “Did you, about the same time, at Mrs. Russell King’s house, say about the same thing, in substance ? ” To both questions he answered that he had no recollection of saying such a thing. Under proper objections and exceptions, counsel claim that this was error, especially as, upon the argument, counsel was permitted to argue that, inasmuch as the witness’ memory was so poor, and as the questions were answered in this way, he could not impeach him, which he might otherwise have done by the persons mentioned in the questions.

There is nothing in the direct examination as printed that shows that these matters were in any way material, but the record is said not to contain all of the testimony, and it may be that the questions were pertinent as tending to controvert Stork’s denial of deceit, or qualifying testimony as to the value or condition of the premises. If it was material, counsel had the right to call impeaching witnesses if the questions were answered in the negative; and the answers as given, falling short of admitting the fact, if, they did not deny it, were sufficient to justify a contradiction by the witnesses named in the questions. The following cases cited by counsel support this proposition: Smith v. People, 2 Mich. 418; State v. Johnson, 47 La. Ann. 1225; Palmeri v. Railway Co., (Sup.) 14 N. Y. Supp. 468. As these questions were proper for the purpose mentioned, we cannot hold that the court erred in admitting the testimony, upon the claim that it was proving a cause of action against defendant, Miller, by admissions of Stork, who was not a party to the record, and whose admissions could not be used for such a purpose; and the charge of the court shows that they were admitted for the purpose of impeachment only.

But it was improper for counsel to state to the jury what he could prove by certain witnesses had Stork answered the questions in the negative. Under the authorities cited, he might have called them had he chosen to do so. It is improper for counsel to state what witnesses would testify if called. In Carne v. Litchfield, 2 Mich. 340, it was said that 4 4 the only facts which counsel are properly permitted to comment upon before a jury are such as have been legally elicited upon the trial of the cause.” And in Donovan v. Richmond, 61 Mich. 467, it was said: 4 4 Counsel have no right to comment upon papers that have not been put in evidence, or on the conduct of the parties in connection with them.” It has been held that a trial judge must restrain counsel from commenting on testimony that has been excluded, if objection is made to such comments. Hollywood v. Reed,, 57 Mich. 234. See, also, Hitchcock v. Moore, 70 Mich. 112 (14 Am. St. Rep. 474.). In Amperse v. Fleckenstein, 67 Mich. 247, it was said: 44 Counsel have no right to put before the jury, by way of argument, what they know of the case, outside of the testimony.” And in Rutter v. Collins, 96 Mich. 510, Mr. Justice McGrath said: '“The jury must get the evidence from the lips of sworn witnesses, and not from the unsworn statements of the lawyers in the argument of the case.” It is not every unguarded remark of counsel that will justify the reversal of a case, where it is evident that no harm can result, but in this case the court did not caution the jury against the statements,. On the contrary, the record shows that they were made with his approval and sanction, against the express objection of counsel for the defendant; and we cannot, under these circumstances, call it harmless error.

Error is assigned upon the testimony of one Mr. England, who testified to the representations of Mr. Stork, in his first talk, in the absence of Miller, with the plaintiffs. If these statements were admissible at all, it was, as the judge charged the jury, merely by way of impeachment; and we cannot determine from this record that this testimony was not proper for that purpose. There was danger of its being treated as showing representations made on behalf of the defendant. We do not discover a foundation for the reception of this testimony for the purpose of impeachment, though it is possible that a proper foundation was laid; hence we cannot say that it was error. This discussion covers the modification of defendant’s eighth request.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


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    BERRY v. HALDEMAN.
    1. Principal and Agent—Extent of Authority—Use of Ambiguous Language—Estoppel.
    Where authority is conferred upon an agent in ambiguous terms, and the agent, in good faith, adopts a permissible construction, the principal is estopped from asserting, as against third persons having dealings with such agent, that the authority assumed in accordance with such construction was not the authority intended to be conferred.
    2. Same.
    The assignee of a contract wrote to the other party thereto notifying him of the assignment, and that his agent, the bearer, was “fully authorized” to do business for him, and that he was prepared to carry out the contract. The writing w.as construed by the agent and the other party as conferring authority upon the former to enter into a new agreement in relation to the subject-matter of the original contract. Held, that such construction was permissible.
    3. Same—Question op Law-^-Submission to Jury.
    The fact that the court, in an action against the principal for • failure to perform the agreement so made, submitted to the jury the question of the agent’s authority, instead of reserving to itself the construction of the writing, was not prejudicial to the defendant. ' •
    Error to Wayne; Frazer, J.
    Submitted October 23, 1896.
    Decided March 10, 1897.

      Assumpsit by Joseph H. Berry and Thomas Berry against Walter N. Haldeman for the breach of a contract for the sale and delivery of goods. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      Brennan, Donnelly & Van De Mark and Frank Hagan, for appellant.

      Wells, Angelí, Boynton & McMillan, for appellees.
   Moore, J.

Litigation growing out of nearly the same facts as in this case was had in the case of Haldeman v. Berry, 74 Mich. 424. A reference to that case will make it unnecessary to repeat all the facts appearing in the record in this case. After that case was decided against Berry et al., they brought this suit to recover the damages which they attempted to recover in that proceeding by way of recoupment. The contract which was entered into by the parties was made, if made at all, by J. H. Mason acting for Berry et al., and by Collins acting for Haldeman. The facts necessary to an understanding of the case, in addition to those stated in Haldeman v. Berry, 74 Mich. 424, are: After Dean died, Collins appeared in Detroit, and presented a letter to Mason, reading as follows:

“Louisville, Feb. 13, 1882.

“ J. H. Mason, Esq.

Dear Sir: Mr. Lewis Collins is fully authorized to do business for me. I have purchased from the administrator Mr. A. B. Dean’s interest in the asphaltum business, and as his successor am prepared to fulfill all his contracts.

•“W. N. Haldeman.”

The presentation of this letter was followed by some talk, which resulted in the execution of the memoranda and letters found on pages 428, 429, and 430 of 74 Mich., which letters plaintiffs in this proceeding claim constituted, a contract for the breach of which this action was brought. They recovered judgment, and defendant appeals.

In addition to the letters found in the opinion in the case of Haldeman v. Berry, supra, this record shows letters the substance of which is as follows:

April U, 1882, Mason to Collins: “Looking anxiously for advices of shipment.”

Aprils, 1882, Collins to Mason: “Latest advices are that first shipment will no doubt be made before last of April.”

April 8, 1882, Mason to Collins: “If no certainty of getting it, must take immediate steps to get a supply from other sources.”

June 2,1882, Collins to Mason: “ Cargo being delivered at the landings.”

June 10, 1882, Mason to Collins: “Is it any more certain now than when you wrote a vessel was being loaded ?”

February 2,1888, Collins wrote Mason that by retaining from the cargo delivered in December, 1882, the asphaltum loaned Dean, as well as by demanding 5 per cent, discount for cash, to both of which “I have and do now assent, you have confirmed the contract of February 14, ’82, and it is confirmed and binding.” Further, “Your favor of December 7th shows that your necessities have been supplied from another source, and you are practically without damage.” Collins sent the draft of a new contract, stating, “It is not to be deemed a revocation or canceling of the one now existing, unless distinctly accepted.”

February 10, 1883, Mason wrote Collins that he did not consider himself in any way bound by his former contract with Dean; “He failed to fulfill it, and, of course, I am not bound by it.”

February 12, 1888, Collins wrote Mason, withdrawing his proposed contract of February 2d, and saying:

“I am free to say, and Mr. Haldeman is of the same opinion, that had you ignored the Dean and Haldeman contract wholly, and not have retained the amount of asphaltum loaned Dean, or five per cent, for cash, as agreed with Dean, the effect would have been, to annul the contract. As it is, you have accepted so much and held us to so much as pleased you; and now we will exercise the same privilege. It will be some little time before a cargo can be tendered to you. You will be, notified in advance, and we shall expect $38 and $40 per ton of 2,000 pounds, at 30 days, in payment. I am sorry we could not agree, as I prefer to do business amicably. But what can’t be cured must be endured.”

February 12, 1888, Collins telegraphed Mason: “Letter withdrawn. Will stand by old contract.”

February 15, 1888, Mason wrote Collins that he need make no tender to be applied on any contract, as, under existing circumstances, he would not receive it.

March &, 1888, Mason wrote Collins, offering to take 100 to 200 tons in July or August at prices stated, but not to apply on any contract orders theretofore given to him or Dean, “as all such orders or contracts are void.”

March 5, 1888, Collins wrote Mason that he did not mean that, by his offer of a small cargo about July 1st, the obligation under which he thought Mason rested to take 1,130 tons should be of no further force.

March 10, 1888, Collins wrote Mason: “We had now best adjust our differences at law, and may the cause of justice win. I will be in Detroit next week to institute suit for breach of contract.”

Collins visited Detroit in March, 1883, employed counsel, and commenced the suit against Berry Bros, in behalf of Haldeman. In that suit Berry Bros, claimed damages by way of recoupment, which case is the one reported in 74 Mich.

For the purpose of showing a ratification by Haldeman of the acts of Collins, the files in the case of Haldeman v. Berry were offered and received in evidence. It is the claim of Mr. Haldeman that he had no knowledge of the bringing of this suit by Collins until after a judgment in a large amount had been obtained against him; and that he prosecuted the appeal in the Supreme Court, not with a view of ratifying Collins’ acts, but to protect himself against the judgment obtained against him, and that he did this by advice of counsel, and that it should not be treated as a ratification of Collins’ acts. , It is the claim of the plaintiffs that the written ' authority given Collins authorized him to do what he undertook to do, and that, if it did not, if Mr. Haldeman desired to repudiate his contracts, he should have acted promptly; and that, when Collins assumed to bring suit in the name of Haldeman, it was the duty of the latter to deny his authority to do so, and that, if he failed to do so, his action was competent evidence for the jui’y to consider as bearing upon the question of ratification.

It is admitted by defendant that he wrote the letter of February 13th to J. H. Mason, but he insists that it did not confer any authority upon Collins to make any new contract with Mason; that it only authorized him to act in relation to the contract then existing between Dean and the Berrys; and that, as the authority conferred is in writing, it was the duty of the court to construe the contract, instead of leaving it to the jury to say, as the court did, whether the letter, taken in connection with all the circumstances and facts surrounding the case, authorized' Collins to make the contract which he did make,— citing Mechem, Ag. § 104. The court left these two questions to the jury in the following language:

“When this letter was written, you will remember that Mr. Mason had entered into a contract for the delivery in 'Detroit of a certain quantity of asphaltum by Mr. Dean for Berry Bros. It was really the contract of Berry Bros. After his death this letter was sent by the defendant in this case to Mr. Mason. Now, whatever authority was conferred upon Mr. Collins by this letter, Mr. Haldeman is bound by, and by none other, unless you shall subsequently find that the contract—-whatever was entered into by Mr. Collins—was subsequently ratified by Mr. Haldeman. When an authority is given to an agent by a principal, the principal is bound only so far as the agent shall keep within his contract, and, when that authority is in writing, a fair interpretation of what was intended by that writing is what governs; and I leave it in this case to you to say whether there was any authority intended to be given by Mr. Haldeman to Mr. Collins to execute or enter into any new contract, or simply whether it was authority merely to carry out the contract that had been entered into by Mr. Dean with Mr. Mason. If you shall find that under this letter there was no authority conferred upon Mr. Collins to enter into a new contract, but you shall find a new contract was entered into between Mr. Collins and Mr. Mason, then so far the plaintiffs in this -case would not be entitled to recover, unless you found that authority was given by this writing to enter into this contract,—this new contract.

“It is claimed on the part of the plaintiffs that, even if there was no authority conferred upon Mr. Collins, he did' enter into a new contract with the knowledge and approval of Mr. Haldeman, and as evidence of that proposition -the exhibits that have been offered in evidence are permitted to go to you, so that you may determine whether, by the conduct or actions of Mr. Haldeman, he knew of or ratified in any manner this new contract that was entered into by Mr. Collins and by Mr. Mason. The evidence for you to consider in determining that proposition is this: It is claimed that this new contract by the plaintiffs was entered into by Mr. Collins, and that subsequently a suit was brought upon that contract to this court, in the name of the defendant, Mr. Haldeman, and that a judgment was entered against Mr. Haldeman in that case—he being the plaintiff—on the defendants’ (Berry Bros.’) plea of recoupment, for, I believe, something near $18,000. If Mr. Haldeman authorized the commencement of this suit in this court, then he recognized and ratified that contract. Here, on this proposition, so far these parties joined issue, the plaintiffs claiming that the evidence in this case shows that Mr. Haldeman authorized the commencement of that suit, Mr. Haldeman denying it, stating here that he never authorized Mr. Collins to commence this suit, nor never knew the suit was commenced, and knew nothing about the suit until he was informed subsequently that a judgment had been rendered against him in this court. It then follows, gentlemen of the jury, that this case was taken to the Supreme Court of this State, and there determined by a reversal of the judgment. It is admitted upon the part of the defendant in this suit, Mr. Haldeman, that he sent here from Louisville his counsel, who appears here in this case, and who was a witness upon this stand, and it is contended by the plaintiffs in this suit that all the testimony in this case, the brief and record, etc., showed that Mr. Haldeman then recognized this suit, and by that means ratified the contract which was entered into subsequent to the death of Mr. Dean between Mr. Mason and Mr. Collins. On the other hand, it is contended here that it is through the advice of counsel—that is, that counsel that Mr. Collins had hired in the suit in which Mr. Haldeman’s name was used—that this case was taken to the Supreme Court, and that they were informed that that was the only way that Mr. Haldeman could defend himself as against the judgment that had been rendered here in this suit of twelve or thirteen thousand dollars against him. Now, right here, it is contended by counsel for the plaintiffs that that was not necessary to do in order to protect Mr. Haldeman at all, but that Mr. Haldeman could have moved in this court, on a motion to set aside that judgment by a bill in chancery, on the ground that his name was improperly used, that it was a fraudulent judgment as far as he was concerned, because he had nothing to do with it, and that that was his proper remedy. Now, gentlemen, that remedy is sometimes resorted to, and it is a legal remedy; but I charge you that in determining that particular question in this case it is for you to determine the intention with which Mr. Haldeman acted, or the advice that he received, or what he acted upon, whether he intended to or did simply try to protect himself against this judgment, or whether he intended .to or did ratify that new contract. If you find that in taking this remedy he simply sought to protect himself against the judgment, and acted by the advice of counsel, and did not. in tend to nor did not recognize that new contract as his own, or the authority of Mr. Collins to make it for him, then there is no ratification of that new contract in this case. But if he did recognize that new contract, or held Collins out,—that is, gave him authority in such a manner that people would be justified in believing that he was acting for him,—or he ratified this contract in the manner I have stated to you, then that ratification would be as binding upon him as if he had actually entered into the contract in the beginning.”

It is undoubtedly the rule that a written contract is to be construed by the court. It is another rule of law that, if the language of a contract is obscure or equivocal or ambiguous, it will be construed most strongly against the party using the language (Kirwan v. Packing Co., 12 Ind. App. 1; Falley v. Giles, 29 Ind. 114; National Bank v. Insurance Co., 95 U. S. 673; Marr v. Given, 23 Me. 55 [39 Am. Dec. 600]); and that ‘ where language is ambiguous, and the agent bona ficle adopts a permissible construction, the principal cannot, on the ground that such construction was not intended by him, disown and dishonor the act of his agent” (Whart. Ag. § 224; Mechem, Ag. § 304; Hopwood v. Corbin, 63 Iowa, 218; Foster v. Rockwell, 104 Mass. 167). The court might well have held that, under the proofs and circumstances of the case, Collins and the plaintiffs having acted under the permissible construction which could be put upon the letter, it must be held to confer authority upon Collins to act for Haldeman. The court did not think best to do this, however, and submitted the question to the jury. "We do not think this was prejudicial error. See White v. King, 87 Mich. 107; Carson v. Smith, 5 Minn. 78 (77 Am. Dec. 539); Kirwan v. Packing Co., supra. This disposes of all the questions relating' to the authority of Collins to make the contract.

It is insisted by defendant that plaintiffs rescinded the contract, and that they also, by their acts and letters, waived any damages growing out of the failure of Haldeman to perform it. It is evident, from the correspondence and the action of Collins in bringing the suit of Haldeman v. Berry, that he did not regard the contract as rescinded. December 7, 1882, Mason wrote a letter, in which he stated that he had succeeded in finding .a substitute for the asphaltum in English pitch, which suited him quite as well as the asphaltum; and it is insisted that this was a waiver. Mr. Berry gave his version of the circumstances under which the letter was written, and of the remittance for the asphaltum which was received. .These were all questions of fact, and were properly submitted to the jury.

Judgment is affirmed.

The other Justices concurred.


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    LITTLESON v. MARTINDALE.
    Appeal—Verdict on Conflicting Evidence.
    Where the issues were fairly presented to the jury, a verdict supported by competent evidence will not be disturbed on apj peal.
    ' Error to Berrien; Coolidge, J.
    Submitted January 7, 1897.
    Decided March 10, 1897.
    Replevin by Theodore Littleson against John Martin-dale. From a judgment for plaintiff, .defendant brings error.
    Affirmed.

      James O'Hara, for appellant.

      Charles N. Sears, for appellee.
   Grant, J.

This is replevin for a horse of the value of $75. Suit was commenced in justice’s court, appealed to the. circuit court, and thence to this court. The title is conceded to be in the plaintiff. The sole question was whether the defendant was entitled to possession and had a lien for the care and keeping of the horse. The plaintiff introduced evidence tending to show that the horse was turned into the defendant’s pasture in August, 1894, under such circumstances as to imply no agreement to pay. Plaintiff and defendant owned adjoining farms near Benton Harbor; the plaintiff, however, doing business in Chicago. Plaintiff further gave evidence tending to show that in October defendant agreed to send or bring the horse to him by boat to Chicago; that he failed to do so, and kept the horse until the next summer under an agreement to make no charge, therefor; and that defendant used the horse in his business sufficiently to more than compensate for the care and keeping. The defendant introduced evidence to the contrary, and to show an implied promise to pay. The jury found a verdict for the plaintiff.

There is nothing in the case to justify a discussion of the points raised. The instruction of the court correctly stated the rules of law governing the case, which are familiar to the profession.

The judgment is affirmed.

The other Justices concurred.


author: Long, C. J.

text:
    FOWLER v. FOWLER.
    1. Contracts—Construction—Quantum Meruit.
    A woman who contracted with a farmer to take charge of his farmhouse, and “do the work for and take care of” the hired men, some of whom were employed continuously from year to year, is entitled, under her contract, to a reasonable compensation for washing and mending done for the men employed.
    2. Trial—Leading Questions—Discretion of Court.
    The allowance of leading questions is a matter entirely within the discretion of the trial court.
    3. Witnesses—Value of Services.
    A woman employed to do the general housework about a farmhouse is competent to testify, in an action to recover therefor, as to the nature and value of the services rendered.
    4. Same—Expert Testimony.
    The value of such services is not so far a subject upon which a jury can form an opinion as to render inadmissible expert testimony in relation thereto.
    5. Evidence—Definiteness.
    In an action against the owner of a farm for services rendered in looking after the farmhouse and in caring for the hired men, a witness who was employed upon the farm while plaintiff was performing the services in question may state the average number of hands employed.

      Error to Hillsdale; Lane, J.
    Submitted January 5, 1897.
    Decided March 10, 1897.

      Assumpsit by Kate Fowler against Frederick Fowler for services rendered. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Guy M. Chester and Fred M. Twiss {Thomas E: Barkworth, of counsel), for appellant.

      C. M. Barre and E. J. March {Watts, Bean & Smith, of counsel), for appellee.
   Long, C. J.

The plaintiff is the daughter-in-law of the defendant, and brings this action to recover from the defendant for her personal services rendered to him. It appears that the plaintiff’s husband had died a short time previous to the time when she claims to have made the contract upon which this suit is brought. At that time she was living upon a farm of 400 acres owned by the defendant. She had one child, who was with her upon the farm. She resided there with her husband prior to his death, and claims that the defendant came there, and desired her to remain, after the death of her husband. The contract was not in writing, but is stated by the plaintiff as follows:

“It was in this second talk he made the arrangement with me to stay there and do the work. He came in and said he wanted to talk with me about staying there; that he would have to have men there, and there would have to be some one there to do the work and take care of them. He said he wanted me to stay there, and he would pay me well for staying. In pursuance with that agreement, I stayed there about two years and nine months, and did the work. My work consisted of the same kind as on any farm, 1 expect,—cooking, washing, ironing, and baking. He said that when he sold the farm he would provide a good home for me and the child; that he would furnish the house, furnish the provisions, and I was to do the work.”

Upon the trial, plaintiff had judgment for $531.13. Defendant’s contention on the trial was that he made no such arrangement with the plaintiff as claimed by her.

The plaintiff filed a bill of particulars in the case, claiming for 144 weeks’ work, at $10 per week; for work, board, lodging, washing, and mending for defendant’s hired men, and for defendant himself, from March 1, 1891, to November 1, 1893; for groceries and provisions furnished in keeping and caring for defendant’s hired help, and for defendant himself; for money borrowed, $60, and interest on the "same; and for money paid hired girls for labor for defendant.

The first question raised by counsel for defendant relates to the testimony given by the plaintiff, under objection and exception, in which she was permitted to state that she did the washing and mending for the hired men; the contention being that this was not a part of the contract which she claims to have entered into with defendant. We think this testimony was competent, under her claimed contract, as in it she states that the defendant said to her he would have men there, and there would have to be some one there to do the work and take care of them. This taking care of them must certainly be held to include the items of washing and mending for them. This contract cannot be construed as meaning that she was simply to provide the meals, as it is shown that certain of these men worked on the farm continuously from year to year, and had their board and lodging there, which was well known to defendant, and which seems to have been a part of the arrangement when the contract was made with the plaintiff.

Some question is raised that counsel for the plaintiff was permitted to put leading questions to the plaintiff. This was a matter entirely within the discretion of the trial court, and we find nothing in the record which evidences any abuse of that discretion.

The fourth assignment of error relates to a question asked the plaintiff by her own counsel, as follows: • “You may tell the jury how much, in your judgment, these services of yours were worth there by the week, from the time you commenced until you left.” The objection to the question is that it was not shown that the plaintiff had any knowledge of the value of the services rendered for which the action is brought. We think this objection has no force. The plaintiff testified that she arose at 5 o’clock in the morning, and worked until 9 o’clock at night; that she had churning to do, butter to make, beds' to make, and all the work there was to do in the farmhouse; and that such services were worth $3 per week. She at least had some knowledge of the amount of work done, and her testimony as to the value was for the jury.

The fifth and sixth assignments relate to questions asked of two of plaintiff’s witnesses, as follows: “What do you think it would average for the time you were there, as close as you can estimate?” One witness had testified that several men had worked there on the farm during the times he was there, in 1891, 1892, and 1893, and that there were more or less men at work there all the time,—sometimes as high as 10 or 12, and never less than 1, besides himself,—and, in answer to the question asked, stated that the average would be about 5, take it all through, and that the plaintiff did the housework. The other witness answered the same question, giving the average number of men there. We think there was no error in this.

Mr. King was called as a witness for the plaintiff. He testified that he was formerly a farmer, and carried on a large farm; that he had hired more or less help. He was asked the general question as to what the plaintiff’s services were worth. The question contained a statement covering fully and fairly plaintiff’s claim as to what she did there upon the farm. There is no claim of any misstatement of the plaintiff’s claim, but the broad ground is taken that the inquiry was not subject to expert opinion; that it was a subject on which the jurors could form an opinion from the facts as well as an expert. The witness answered that the services were worth from three to four dollars a week. , We think this testimony was competent.

Some other questions are raised by the record, which we do not consider necessary to discuss. We have examined them, and are satisfied that a fair trial was had. -What is stated in reference to the conduct of counsel for plaintiff, in the briefs of defendant’s counsel, we have also examined; and, while the remarks might better have been left out of the case, we are of the opinion that they are not of such a nature as to call for a reversal. Some question is also raised upon the charge of the court, but we think it was fair, and that it fully stated the law governing the case.

The judgment must be affirmed.

The other Justices concurred,


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    RODGERS v. TORRENT.
    Contracts—Assignment.
    The right to recover money which has already become due under a contract is assignable, although the obligations are such that the defendant could not be required to rely upon an , assignee to perform that part of the contract remaining ex-ecutory.
    Appeal from Muskegon; Russell, J.
    Submitted January 5, 1897.
    Decided March 10, 1897.
    Bill by Lincoln Rodgers against John Torrent for an accounting. From an order overruling a general demurrer to the bill, defendant appeals.
    Affirmed.

      Bunker & Carpenter, for complainant.

      C. W. Sessions, for defendant.
   Montgomery, J.

Complainant filed a bill for an accounting. The bill sets out a contract between Alexander Rodgers and defendant, which recites that Alexander Rodgers and defendant were the owners of,various letters patent, relating to log-turning and log-rolling machines, and that, by assignments from Rodgers to , Torrent, all these patents had become vested in defendant. By the terms of the contract Torrent agreed to prosecute for, adjust, settle, and collect for infringements upon any of these patents, and to keep a correct account of his doings and transactions, and to render an' account of the same once in six months, and, at that time, to divide the amount of collections from every source, whether in money, evidences of debt, or securities.. Rodgers agreed, on his part, during the lifetime of the patents, to manufacture or cause to be manufactured, in a proper manner, the machines covered by the letters patent, and to sell and dispose of the same at prices to be agreed upon, and to properly advertise the machines, and make the sale thereof as extensive as he should be able, using his best judgment in the matter. He likewise undertook to keep a correct and detailed account-of machines sold, and to make settlements every six months, retaining the cost of manufacture and 10 per cent, profit on manufacture, and divide the balance of the proceeds equally between the parties. The bill further avers that about the 1st of September, 1890, defendant rendered an account to Alexander Rodgers of $5,485.07, upon which he paid Rodgers $1,500, but that since that time he has collected large amounts, but has rendered no account. The bill alleges that on the 21st of September, 1893, Alexander Rodgers, for a valuable consideration, assigned and transferred to complainant the said contract, together with all his right, title, and interest therein, with full authority to have, receive, sue for, and collect the same; that demand has been made upon Torrent for an accounting, which has been refused. The bill prays for an accounting.

The defendant interposed a general demurrer, and assigns as a ground of demurrer the claim that the contract between Alexander Rodgers and defendant was not assignable. The demurrer does not allege a nonjoinder of parties, but is general, as before stated. Nor does it appear that any such ground of demurrer was urged below. In the brief of defendant’s counsel it is stated: “ It is not a case of nonjoinder of the proper parties to the bill. On the contrary, the bill is filed by an interloper, in whose favor there can be no equities. ” After the demurrer was overruled in the court below, the complainant, availing himself of the privilege granted by rule, amended his bill by making Alexander Rodgers a party. We need not determine, therefore, whether Alexander Rodgers was a necessary party, as any objection on that ground had been obviated before the objection was urged by defendant. Indeed, as before stated, no such objection has yet been urged. The single question is whether complainant, by the assignment averred, obtained such a right to the avails of this contract, so far as executed, as entitled him to maintain this bill. If it be conceded, as we think it should be, that defendant could not be required to rely upon the complainant to perform that part of the contract which remains executory, and which Alexander Rodgers undertook to perform, the fact still remains that certain sums of money were to grow due, under the contract, to Alexander Rodgers, at stated intervals, which he was, at these times, entitled to receive. The right to demand and receive these moneys, we think, is assignable. See Perkins v. Butler Co., 44 Neb. 110; Bates v. Lumber Co., 56 Minn. 14. It is one thing to say that a party may not be required to assume contract relations with another, and to rely upon such other to perform stipulations made with a third person, and another thing to hold that the right to recover money under a contract performed in whole or in part shall not be subject to assignment.

The decree will be affirmed, with costs, and the cause remanded.

The other Justices concurred.


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    LUCKER v. LISKE.
    1. Intoxicating Liquors—Civil-Damage Act—Damages.
    A married woman may recover under the civil-damage act (3 How. Stat. § 2283e3) for the feeling of shame, disgrace, and mortification arising from the public conviction of her husband for drunkenness resulting proximately from the sale of liquor to him by the defendant, even though the trial and conviction were had after she had commenced her suit.
    2. Same—Evidence—Judicial Record.
    The record of the conviction of the husband is therefore admissible in such action, not to prove the fact of drunkenness, but to show the extent and nature of the injury suffered by the wife.
    3. Same—Newspaper Articles—Admissibility.
    A newspaper article giving an account of a saloon row, and of the husband’s participation therein, is admissible as bearing upon the mental anguish suffered by the plaintiff.
    4. Evidence—Collusive Prosecution—Question for Jury.
    Circumstances which would justify the jury in finding that the conviction of plaintiff’s husband for drunkenness was collusive, and that she should not be permitted to recover against the saloonist for mental suffering incident thereto, do not render evidence of the conviction inadmissible.
    5. Same—Stenographer’s Minutes.
    The stenographer’s minutes of the testimony of a saloon keeper on a prosecution for drunkenness of one to whom he had sold liquor are admissible in an action under the civil-damage act against the saloonist by the wife of the person convicted.

      Error to Berrien; Coolidge, J.
    Submitted January 7, 1897.
    Decided March 10, 1897.
    Case by Carrie Lucker against Richard Liske and others under the civil-damage act. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Lawrence C. Fyfe, for appellants.

      James O’Hara, for appellee.
   Hooker, J.

The plaintiff brought an action to recover damages for the sale of intoxicating liquor to her husband, joining in one action, as defendants, two saloon keepers (each of whom is alleged to have sold liquor to the husband upon the day in question), and the sureties upon their respective bonds. The action is the outgrowth of a row which occurred in the saloon of one of the defendants. Afterwards the husband of the plaintiff was arrested, and, upon his plea of guilty, was convicted of drunkenness. He appealed from the judgment of the justice, and was allowed to make a defense at the trial in the circuit, which resulted in conviction. This action was commenced before the complaint for drunkenness was made. The alleged errors are:

1. The admission of the records of conviction before the justice and in the circuit court.

2. The admission of the stenographer’s minutes of the testimony of defendant Johnson, given on the trial of Lucker in the circuit court.

3. The admission of two newspaper articles giving an account of the row and Lucker’s participation in and connection with it, published immediately afterwards.

4. The statement in the charge that: “There are cases of this kind where a wife is entitled to recover as for the loss of a sober husband, where the sale of the saloon keeper has made, or contributed to make, the husband a drunkard. Then the saloon keepers are chargeable with that fact, and heavy damages may be recovered, perhaps, for making a sober husband a drunkard,”—and that: “If a man, for instance, under the influence of liquor thus sold to him, has committed a crime, resulting in her additional disgrace and mortification, then she is entitled to recover, although he may, at the same time, have been an habitual drunkard.” ■

In support of his first point, counsel for the defendants seems to rely on two propositions:

1. That no injury had resulted from the arrest and conviction before this action was commenced, inasmuch as the arrest was later.

2. That such arrest and conviction may have been collusive, or instigated by the plaintiff or her husband for the purpose of swelling a verdict.

In Radley v. Seider, 99 Mich. 431, we held that the words “or otherwise” so broadened the damages recoverable in these cases that damages for the feeling of shame, disgrace, and mortification were recoverable, although no injury to person or property or means of support was alleged or shown. It would seem obvious that this feeling would be increased in cases when the drunkenness was accompanied by unseemly conduct or public exhibition of his condition by the husband, and that the greater the notoriety of the transaction the more keen would be the mortification. A public conviction of the offense of drunkenness would contribute to this feeling of disgrace. The law is apparently intended to permit a recovery for such injuries as can be traced directly to the condition produced by the sale of liquor, and this is not an unnatural result, but one which is to be expected. It is a proximate result, because without being drunk he could not be guilty of that particular offense which depends upon the condition of drunkenness. In short, it is clearly traceable to the effect of the liquor. Black, Intox. Liq. §§ 311, 312. It was in this case, upon the theory of the plaintiff, an effect of the sale of liquor, an incident of the condition of drunkenness produced by the unlawful sale. It was therefore proper to show such conviction, not for the purpose of proving the fact of drunkenness, which was open to dispute, but to show the nature and extent of the injury suffered by the plaintiff, if the jury should be satisfied from the evidence that the husband was drunk as a result of defendants’ wrongful sale.

The defendants were at liberty to ask the jury to find from the circumstances that this prosecution and conviction was collusive, but we cannot say that the evidence of conviction was inadmissible because of such claim.

But it is said this action was brought before the prosecution was commenced, and therefore this evidence was not admissible, for the reason that damages resulting therefrom were not recoverable. If this were a substantive cause of action, there might be force in this; but the plaintiff’s right of action accrued at the time the sale was made to her injury, and she was at liberty to bring her action at once, and but once, and she might recover, not only damages for injuries that she had suffered up to the time the action was begun, but damages for such injuries up to the time of trial, and, in addition, such prospective damages as the evidence showed would result in the future. Conlon v. McGraw, 66 Mich. 194; Thompson v. Ellsworth, 39 Mich. 719; People’s Pee Co. v. Steamer Excelsior, 44 Mich. 229 (38 Am. Rep. 246).

The admission of the stenographer’s minutes of the testimony of one of the defendants, after the proper foundation had been laid, was clearly proper, under repeated decisions. They stand on the same footing as attorney’s minutes. Fisher v. Kyle, 27 Mich. 454; Edwards v. Heuer, 46 Mich. 95; People v. Sligh, 48 Mich. 54. If the foundation was lacking in some particulars, the only objection made was that it was inadmissible if the witness did not remember every word.

The newspaper articles were upon the same plane as the record of conviction. They were not evidence of the commission of the wrongful act, but their publication was an attendant circumstance which tended to increase the keenness of plaintiff’s'mortification and shame. Filer v. Smith, 102 Mich. 99.

The foregoing discussion disposes of the only point requiring notice that is made upon the charge.

It is said that the record of conviction was admitted and used to prove the fact of drunkenness, but our attention is not called to the evidence of such fact, or to any objection or exception based on that ground.

We are of the opinion that the judgment of the circuit court should be affirmed, and it is accordingly so ordered.

The other Justices concurred.


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    MASON v. CITY OF MUSKEGON.
    Municipal Corporations—Presentation of Claims—Commencement op Suit. '
    One who under protest has paid taxes assessed upon his lands cannot maintain an action for the repayment of such taxes against a city whose charter provides that it shall he a sufficient defense to any action or proceeding against the city for the collection of any claim that such action or proceeding was begun before the common council had time to pass upon or investigate the claim, where he commenced his action before the next meeting of the council, after the one at which the claim was presented to it.
    Error to Muskegon; Russell, J.
    Submitted January 8, 1897.
    Decided March 10, 1897.

      Assumpsit by Lyman Gr. Mason against the city of Muskegon to recover taxes paid under protest. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Arthur Jones, for appellant.

      H. L. Delano, for appellee.
   Moore, J.

This suit was brought to recover a sum of money paid by plaintiff under protest for taxes assessed upon lands in the city of Muskegon for the year 1887. A great many questions are raised by the record, which will not require discussion here. The record discloses that the taxes were paid February 29, 1888. The first regular meeting of the common council for the city of Muskegon, after the taxes were paid, was held March 2d. The plaintiff did not present any claim for the taxes so paid at that meeting, but at the next regular meeting, which was held the 16th of March, he did present a claim, which was duly verified. This was at once referred by the council to the city attorney and the city treasurer for investigation, they to report the result of the investigation to said council. The next regular meeting of the council was held April 5th. Before that meeting was held, and before the city attorney and city treasurer had made their reports,—on March 29th,—the plaintiff brought this suit.

The charter of Muskegon provided that claims should be presented to the common council, and that “it shall be a sufficient defense in any court to any action or proceeding for the collection of any demand or claim against the city, of any description whatever, that it has never been presented as aforesaid to the council for allowance, or that the claim was presented without the affidavit aforesaid, and rejected for that reason, or that the action or proceeding was brought before the common council had a reasonable time to investigate and pass upon it.” The court found as a matter of fact that when this suit was brought the council had neither rejected the claim nor had it had a reasonable opportunity to investigate it, and found as a conclusion of law that the plaintiff was not entitled to maintain his action. We think both of these conclusions were right. The charter provision is a reasonable one, and should be given such a construction as to make it effective. City of Detroit v. Michigan Paving Co., 38 Mich. 358; Springer v. City of Detroit, 102 Mich. 300; Louden v. City of East Saginaw, 41 Mich. 18; Mead v. City of Lansing, 56 Mich. 601; Crittenden v. City of Mt. Clemens, 86 Mich. 220.

This case is not like the case of Whitney v. City of Port Huron, 88 Mich. 268 (26 Am. St. Rep. 291), where four regular meetings of the council intervened after the claim was presented before the suit was brought. Here no meeting had intervened.

Judgment is affirmed.

The other Justices concurred.