text:
    Henry Joseph Richter v. Frederick W. Cordes et al.

      Schools and school-districts — Possession of building — Parochial school — Forcible entry and detainer.

    The inhabitants of a regularly organized school-district were Roman Catholics, and the school kept therein had been for some years supported in part by contributions from the church authorities, and in part by public money. The teacher had been regularly contracted with by the school-district officers, except for the last two years of his service, during which time he continued to teach without any formal contract, and to occupy the lower portion of the school-house as a residence. The district officers became dissatisfied with the teacher, and advertised for another. The parish priest objected to the discharge of the teacher, and claimed that the building belonged to the church, and that the school was a parochial, and not a public district, school. The teacher attorned to the bishop of the diocese in which the school-district was situated, and who held the record title to the land on which the building stood, and as the final outcome of the matter the' district officers obtained peaceable possession of the building, which they maintained by the use of force against a forcible attempt on the part of the priest to eject them, whereupon the bishop instituted summary proceedings to recover possession of the building, charging the officers with both forcible entry and detainer. And it is held:
    a — That the possession of the teacher was the possession of the district, and that he could not legally turn it over to the priest or to the bishop. *
    . b — That, as the defendants obtained possession without using-force or threats against any person, and without committing a breach of the peace, their retention of possession by using force against force in the attempt to eject them did not change the character of their entry, or make that forcible which was before peaceable, and that there was therefore, under the decisions of the Court, no forcible entry.
    c — That, as the school-district was, and long had been, in possession of the school-house, which possession had been recognized and acceded to by the church authorities, the district could be ousted therefrom only by a proper and legal process, after a proper and legal notice.
    Error to Kent. (Grove, J.)' Argued April 5, 1894. Decided May 18, 1894.
    Proceedings for forcible entry and detainer. Complainant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Francis A. Stace (Uhl & Grane, of counsel), for, appellant.

      Wolcott & Ward (George P. Wanty, of counsel), for defendants.
   Grant, J.

The plaintiff is bishop of the Catholic diocese of Grand Rapids, which includes the township of Alpine, and defendants are the officers of school-district Eo. 11 of said township, and also members of the Roman Catholic church, The complaint and warrant charge both. forcible entry and detainer. The building in controversy is situated upon a piece-of land described as containing two acres. The complaint states that the lower portion of said building is occupied as a dwelling-house by one Aloysius 'Batsche, and that the upper floor is used as a ■school-room, and that the defendants, on the 4th day of ■September, 1892, entered upon said upper floor of said building with force, while the same was lawfully in the possession of said Henry Joseph f Richter, and that they unlawfully hold the same by force and against his rights. Plaintiff introduced a deed from Caspar H. Borgess to plaintiff, dated May 7, 1883, and under this he holds the record title to the land on which the school-house is situated.

Counsel for plaintiff state in their brief that the land was conveyed by one Eberhardt Cordes, in 1869, to one Peter Hennaert, then the administrator of the diocese of .Detroit, during a vacancy in the bishopric; that the congregation, which was of the Roman Catholic faith, proceeded to erect on this land a church edifice and a schoolhouse, the latter being the building in question; that the building was erected by the entire congregation through subscriptions, entertainments, and other means.

The counsel for the defendants state in their brief that in 1869 the district had one school-site and an old schoolhouse; that they concluded to build a new school-house; rthat Eberhardt Oordes agreed to furnish the site to the district; that the district proceeded to raise funds, jDartly by subscription and partly by taxes, for the erection of a school-house; that the deed was not made until the schoolhouse was nearly, if not quite, completed; that Mr. Cordes proposed to deed it to the district; that the bishop» objected, and demanded that the title be placed in -him, which was finally done.

There is nothing in the record to sustain the statements •of either counsel. The early history of this school and of the school-district is not contained in the record. The record, goes no further hack in its history than about seven years. It is, however, established that this is a regularly •organized school-district, that it has received its share of the school fund, and has raised money by taxation to support the school. Batsche, prior to September, 1892, had been employed for some seven years as its teacher. He, with his family, occupied the lower part of the building, the upper part being devoted exclusively to school purposes. The tenets of the Roman Catholic faith were taught in the school without objection. The inhabitants of the district, being entirely of that faith, appear to have desired this to be done. District meetings were annually held, officers chosen, and teachers hired and paid by the school board. Several contracts, in the usual form, made with Mr. Batsche, were introduced in evidence, but for two years prior to the trouble he appears to have continued without .any formal contract of hiring. Scholars were admitted' from outside the district, who paid tuition, those within the district, whose parents were able, also paid, and the trustees of the church appear to have contributed towards the teacher's salary.

At the close of the school in 1892, Batsche, as usual, remained in possession of the dwelling part of the building, and had the keys of the school-room. The board became dissatisfied with .Mr. Batsche as a teacher, determined not to hire him, and advertised for another teacher. The priest, Fr. Schmitt, who had recently been placed in charge of the church and parish, objected to the discharge of Mr. Batsche. Attempts were, made to reconcile their differences, which proved unavailing. Fr. Schmitt appears to have claimed that the building belonged to the church; that the school was a parochial, and not a public district, school; and Mr. Batsche then attorned to the plaintiff. It is evident that Fr. Schmitt intended to retain the possession and control of the school so as to establish Mr. Batsche there as teacher.

On August 31, which was Wednesday, the defendants went to the school-house, found the doors open, walked in without any opposition, and took possession of the schoolroom. No one was present at that time except Mrs. Batsche, who made no objection. Defendants then placed a padlock on the door, and went away. They returned the next morning, and found that the outside door had been locked during the night. They testify that they found a window leading into the hall open, held up by a stick of wood; that they entered, and, with a wire, unlocked the school-room door and the outside door, and took possession, which possession they held up to the time this suit was brought. One William Brechting came in a short time, and, claiming to be acting in behalf of plaintiff, attempted to force his way into the school-room by breaking down the- door. In this he was prevented by defendant Edward Oordes. From that time until the following Sunday one of the defendants remained in possession of the school-room day and night. On Sunday Fr. Schmitt obtained the presence of two deputy-sheriffs, and, after the services in the church were over, marched with some of the church trustees, the children, and the congregation to the school-house. He entered without opposition. The door leading from the stonn-house into the hall had been removed. The school-room door was unlocked. The children were seated, and he proceeded to take their names, with a view to organize a school. He then ordered the door belonging to the hall to be taken down stairs, and hung in its proper place. He took hold of the door for that purpose, and defendant Edward Oordes also took hold of it, telling him to leave it there. This caused some disturbance, and the officers interfered to keep order. The door was then taken down stairs. Fr. Schmitt then caused the padlock to be taken off with a hatchet, and ordered every one to leave the room, so that it could be locked up. The defendants refused to go. He then withdrew, locked the door, leaving the defendants in possession, and shortly after instituted this suit.

As bearing upon the question whether Batsche held possession for the plaintiff or for the school-district, the records of the school-district were introduced in evidence, showing how the business had been 'conducted, the employment of teachers, and repairs upon and taking care of the building. These records, and this evidence show that the business was conducted in the usual manner of school-districts. We have stated sufficient of the facts to present the questions raised.

It is contended on behalf of the plaintiff that the evidence establishes beyond controversy that the title to the property was in him; that this was a parochial school, and always had been; that, even if it were not a parochial school, Batsche^s relations to the district ceased at the end of the previous school year; that he was in the lawful possession; that he was ejected by force; and the court was requested to direct a verdict in plaintiffs favor. It is contended on behalf of the defendants that they were lawfully in possession of the school-house; that Batsche could not attorn to the plaintiff so as to deprive them of that possession; that they were a regularly organized school-district; that as such they obtained the public funds to support the school; that they hired teachers, and paid the expenses; that the plaintiff obtained no possession or right of possession by the fact that the church contributed to the support of the school, or that religious exercises were held in it; and they deny that they obtained possession by force. The 'court, under a full and fair charge, left it to the jury to determine whether there was such force used in obtaining possession as to constitute a forcible entry, and whether the possession of Batsche was the possession of the plaintiff or of the defendants. Upon this latter question the charge to the jury is as follows: -

“The question whether the defendants had a right to the possession depends upon the occupation of the premises on and prior to the day of the entry, and this will depend upon the relation the witness Aloysius Batsche held to the parties in this controversy. If he was there as a teacher of the district school, in the employment of the school board, his possession was that of the board, and the verdict in this case in that event, if you should so find, should be, ‘Not guilty/ If he was there as the teacher of the parochial school, under the authority of the bishop, he was there as the agent of the plaintiff, and defendants would not have a right to put him out by force or keep him out by force. You should, then, first determine whether he was there as the teacher of a district school, by considering this question, under employment of the school board, or as the teacher of a parochjal school under employment by authority of the church or of the bishop. If you find that he was there in the former capacity, namely, that of a teacher of a district school under employment of the school board, you need go no further in your inquiry, but render a verdict of ‘ Not guilty/ If, however, you find from the evidence that he was there in the latter capacity, namely, as a teacher of a parochial school under the authority of the bishop, then you will determine from the evidence whether the defendants expelled Mr. Batsche or kept him out by such force as would amount to a breach of the peace; and in that case, if such force was used, your verdict should be ‘ Guilty/ If you should find that force was not used, even though you should find that Batsche was there in the character of a parochial teacher, if you find such force was not used, then your verdict should be, ‘Not guilty/"

It is difficult to escape the conclusion that the district was in possession of the school-house. Any other conclusion would lead to holding that the bishop and the priest were guilty of receiving public funds in an illegal and unconstitutional manner. Counsel for plaintiff, in their brief,' say:

The evidence discloses an unprecedented condition of affairs in that locality. * * '* These people, evidently for the .purpose of obtaining their share of the public money, kept up the district organization, and for part of each year made contracts with the teacher in the usual form, the school being kept in the plaintiff’s building without any agreement of any kind. Such a state of affairs could not give the district officers any right to the posses-, sion of the building, or to any part of it. It is undoubtedly the case that the actions of the school-district officers were against the letter and spirit of the Constitution and laws of the State in relation to appropriating public money for sectarian schools; but the district officers cannot, by their own violation of law, obtain 'any rights by reason of such violation. This is elementary.”

We do not think this the legitimate conclusion to be drawn from the undisputed facts in the case. It is more just to the church authorities to hold that they recognized the validity of the school-district, and were willing to contribute to the support of the public school, especially inasmuch as they were permitted without objection to have their children taught in the school in the religious faith to which they were attached. It would be a reproach upon their honor and good citizenship to hold that for years they had been obtaining, under false and fraudulent representations, public moneys for sectarian purposes. Batsche’s possession was the possession of the district, and he could not legally turn that possession over to the parish priest or the bishop. The title to the ]and or the building is not here involved. The .defendants obtained possession without using force against any person. If they retained possession by using force against force in the attempt to eject them, this did not change the character of their entering, or make that forcible which was before peaceable. No breach of the peace was committed .in entering, nor was possession obtained by threats or violence. There was, therefore, under the decisions of this Court, no forcible entry. Har rington v. Scott, 1 Mich. 17; Davis v. Ingersoll, 2 Doug. 372; Latimer v. Woodward, Id. 368; Seitz v. Miles, 16 Mich. 456; Shaw v. Hoffman, 25 Id. 162; Marsh v. Bristol, 65 Id. 386. Under the decision in Seitz v. Miles, the sole question is one of forcible entry. A regularly organized and existing school-district was, and long had been, in possession of the school-house. This possession was, during all that time, recognized and acceded to by the church authorities. The district could be ousted therefrom only by a proper and legal process after a proper and legal notice.

The judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Lons, J.

license: Public Domain

text:
    George R. Murray v. Horace Ingersoll, James Ingersoll, and George M. Dayton.

      Mortgage foreclosure — Computation of interest — Bill of review.

    Defendants, who are personally liable for the deficiency arising on a foreclosure sale, appealed from an order denying their petition for leave to file a bill of review, and the order is reversed, and the prayer of the petitioners is granted, • unless the complainant remits certain interest, which was erroneously included by the court in the amount for which the decree was granted.
    Appeal from Clinton. (Smith, J., presiding.) Argued April 5, 1894. Decided May 18, 1894.
    Bill to foreclose a mortgage. Defendants Ingersoll appeal from an order denying their petition for Heave to file a bill of review.
    Order reversed, unless complainant remits a certain amount within 30 days.
    The facts ai^e stated in the opinion.

      Jason IS. Nichols, for complainant.

      TinTcham & Clark (Norton é Weimer, of counsel), for appellants.
   Lons, J.

Defendant Horace Ingersoll gave a mortgage to defendant Dayton, April 19,1881, which was duly recorded on May 30 following. It was given to secure the payment of the sum of $2.000, with interest at the rate of 10 per cent-., payable annually after October 1, 1882. The principal was payable in 10 equal annual installments, the first payment to be made October 1, 1882. It was given to secure the payment of the purchase money of certain lands in the mortgage mentioned. On November 1, 1881, Dayton assigned the mortgage in writing to the complainant, which assignment recites the consideration of $2,323.23. The assignment was duly recorded. On December 13, 1887, complainant filed his bill to foreclose the mortgage; no part of the same having been paid. The Ingersolls and Dayton were made parties defendant, as James Ingersoll signed the note accompanying the mortgage, and Dayton gave a written guaranty of the payment of the note at the time he made the assignment of the mortgage. Defendant Dayton did not appear in the foreclosure proceedings, and the bill was taken as confessed as to him. Defendants Ingersoll appeared and answered. They denied by their answer that the assignment was for a valuable consideration, and alleged that it was without any consideration whatever, and that Dayton was still the owner of the mortgage; that there was an error in computing the amount for which the mortgage was given, being about $224 too much. They also claimed that, at the time the mortgage was given, Dayton had in his hands for collection a claim against an estate, and that an arrangement was then made by which, when the claim was collected by Dayton, he should indorse one-half of it upon the mortgage; that the claim was collected, and they were entitled to have the sum of $125 so indorsed on the mortgage. It was alleged further in the answer that before the giving of the note and mortgage the defendant James Ingersoll had purchased the premises in question of W. O. Wood, and executed to him a mortgage covering the land for $500; that Dayton, at the time of taking his mortgage, represented that Wood had no title to the premises when he conveyed, and agreed, that he would have the Wood note and mortgage set aside, and, failing in this, he would indorse upon his note and mortgage the sum of $500 as of April 19, 1881, the date of the mortgage. On the hearing the court found the complainant entitled to recover the full amount 'of the note and mortgage, with interest from April 19, 1881, and that defendant Dayton was personally liable for the sum of $3,036.34, and the defendants Ingersoll were personally liable for the sum of $2,420.80, and ordered a sale of the premises unless the latter amount was paid. .The premises were sold for $1,700 by the commissioner. Order of confirmation was entered, and no appeal was taken.

Decree was entered May 14, 1892. In September following, the defendants Ingersoll filed a petition in the cause for leave to file a bill of review. This petition was denied, and they appeal to this Court. In the petition it is claimed that the decree is erroneous for the reasons:

1. That the court permitted the interest on the mortgage to be computed from the date of the mortgage, while it should have been computed, according to its terms, from October 1, 1882, only.
'2. That the court refused to allow defendants one-half of the moneys collected by Dayton on the claim in his hands.
3. That the court refused to allow the $500, the amount of the Wood mortgage, which Dayton failed to have discharged.

The further claim is made that since the rendition of the decree the defendants have discovered evidence, unknown to them before, that will now substantiate their claims; that in a certain proceeding the defendant Dayton testified that after the pretended assignment of the mortgage to complainant he was still the owner of it. Some of these facts were controverted by the complainant.

It is claimed by counsel for complainant that the solicitor for the defendants Ingersoll was present at the time the decree was settled, and assisted in the computation of the interest due on the mortgage, and the amount was agreed upon as found by the court.' We have examined the record, and find no proof of that fact. The mortgage provides for the payment of interest annually after October 1, 1882, while it is conceded that the court, in determining the amount due and to become due, computed interest on the mortgage from April 19, 1881. It is apparent, therefore, that there was error in the computation. The decree should be opened, unless the complainant remits from the amount due the interest on the mortgage from April 19, 1881, to October 1, 1882.

The other questions raised were settled in the foreclosure proceedings. The claim of newly-discovered evidence has no force. The testimony of Mr. Dayton does not warrant the construction sought to be given it; and the complainant shows, we think, conclusively, that he was a Iona fide purchaser, and the owner of the mortgage at the time of the foreclosure.

The order of the court below will be reversed, and the defendants permitted to file a bill for review, unless complainant remits the interest, as stated, within 30 days from this date. Defendants will recover the costs of this Court.

The other Justices concurred.


author: Lons, J. Per Curiam.

text:
    Harry Allen v. William A. Snyder.

      Deed — Bill to set aside conveyance — Fraud—Settlement—Decree.
    Complainant, a man about 60 years of age, having- separated from his wife, wrote to the defendant, who had lived with complainant for several years prior to attaining his majority, asking him to sell his personal property, and come and live with complainant. Defendant complied with complainant’s request, and complainant conveyed to him by warranty deeds about 300 acres of land, in consideration of his agreement to furnish complainant a life support. Complainant’s daughter, learning of the arrangement, interfered, and insisted that it be set aside. A settlement was made between the parties, by which the defendant deeded to the daughter one-half of the lands, and gave a new agreement, in lieu of the first one, to furnish complainant a life support, after which the daughter conveyed the land deeded to her to her father. The complainant, about 20 months after ■ such settlement, filed a bill to set aside his deeds to defendant, on the ground that they were procured from him while he was in so enfeebled a condition, both physically and mentally, as to make the procuring of them a fraud upon him. And it is held that the proofs fall short of showing that the defendant took any undue advantage of complainant; that complainant’s letters, written at about the time the deeds were executed, are clear and intelligible, and bear no evidence of having been written by.a man of weak mind; and that, aside from this, it appears that the settlement was agreed to by all of the parties, and was deliberately made, and no fraud or overreaching is proved in bringing it about. And the decree below, which denied the main relief prayed for, and decreed that, in lieu of the agreement set forth in the bill, the defendant should pay semi-annually a fixed sum to the complainant during his lifetime, and that the same should be a lien upon the portion of the lands owned by him, is affirmed.
    Appeal from Jackson. (Peck, J.) Submitted on briefs April 5, 1894. Decided May 18, 1894.
    Bill to set aside deeds. Complainant appeals.
    Decree affirmed.
    The facts are stated in the opinions.

      Dwight D. Root, for complainant.

      Lewis M. Powell, for defendant.
   Lons, J.

This bill is filed to set aside deeds of certain lands in Jackson county, which complainant alleges.defendant procured from him while he was in so enfeebled a condition, both physically and mentally, that the procuring of them was a fraud upon him..

"Complainant had lived for many years in Jackson county, and owned and possessed something over 300 acres of land. Defendant, when 8 or 9 years of age, was taken into his family, and remained there until past 21, when he went for himself. He thereafter married, and settled upon a farm in Mecosta county, which he had purchased. The complainant had some trouble with his wife. She had filed a bill for divorce against him in 1888, and a settlement was made with her by the complainant's deeding her a portion of his property, she agreeing to live separate and apart from him. Complainant was a man about 60 years of age at this time, and, it is alleged, had had a stroke of paralysis. In the fall of 1889 he wrote the defendant to sell off his personal property, and come to Jackson county, and live with him. This defendant did. ■ On December 27, 1889, complainant gave the deeds in question conveying to the defendant the lands in controversy, upon the agreement that the defendant should care for and support him so long as lie lived. The agreement was put in the form of a note, and, defendant claims, with a consideration of $5,000. There were two deeds made and recorded. A few days thereafter, the daughter of complainant, learning of the facts of the agreement, interfered, and insisted upon the arrangement being set aside. The parties soon came together, and a settlement was made by which the defendant deeded to the daughter one-half of the lands, taking up the $5,000 note, and giving one for $2,500, containing an agreement to care and provide for complainant during his life. The daughter thereafter deeded to complainant the lands so conveyed to her. In September, 1891, this bill was filed to set aside these deeds to defendant. The testimony was taken in open court, and, upon a full hearing, complainant’s bill was dismissed.

We think this decree should' be affirmed. The proposition that defendant should sell his personal propertjq and remove to Jackson county, came from complainant. His letters written about that time are clear and intelligible, and bear no evidence of being written by a man of weak mind. The deeds were made, and we think the proofs fall short of showing that the defendant took any undue advantage of the complainant; but, aside from this, it appears that, after the daughter learned that the deeds had been made, the parties met together, — complainant, defendant, the daughter, and her husband, — and a settlement was agreed upon, and a deed to one-half of the property made to the daughter, the old note being taken up, and a new one, and agreement for support, made. The daughter subsequently conveyed this half of the property to. the complainant. This settlement was agreed to by all the parties, and deliberately made, and no fraud or overreaching is proved in bringing about this arrangement. The court below saw the witnesses, and, after full hearing, dismissed .complainant’s bill.

The decree must be affirmed.

.The other Justices concurred.

An application by complainant for a rehearing was submitted June 16, 1894, and on June 30 the following-opinion was handed down:

Per Curiam.

The motion for rehearing will be denied. It was said in the former opinion that the decree of the court below would be affirmed. By some inadvertence, however, it was said that the bill was dismissed below. The bill was not dismissed, but the main relief asked was denied, and the amount that defendant ivas to pay complainant was made a lien upon the land.

The decree of the court below will, in all things, stand affirmed.


author: Long, J.

text:
    James K. Chadderdon v. The Michigan Central Railroad Company.

      Railroad companies — Injury to employe of shipper — Contributory negligence.

    The negligence of the plaintiff in remaining in a box car, which he was assisting in loading with seeders or grain drills, for the purpose of supporting the seeders while the car was being pulled out from the spur track, upon which it was standing, to enable the defendant; to place some cars laden with iron on the spur track, and who was injured by reason of the defendant’s kicking the box car back onto the spur track, unattended by a brakeman, it being down grade, and causing it to run against the cars which had been placed on the spur track with such force as to overturn the seeders, and tip them over onto plaintiff, is held not to have been so clear as to have justified the court in taking the case from the jury.
    Error to Cass. (O'Hara, J.) Argued April 6, 1894. Decided May 18, 1894.
    Negligence case. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Edwards & Stewart (Ashley Pond and Henry Russel, of counsel), for appellant.

      Coy W. Hendryx and M. L. Hoioell, for plaintiff.
   Long, J.

Plaintiff was an employé of the Dowagiac Manufacturing Company, engaged with others in loading a car with seeders or grain drills for shipment upon defendant's road. The car was standing upon a spur track built by the defendant company for the accommodation of the manufacturing company, parallel to the main track._ When the car was partly loaded, and before the seeders in the car had been braced to hold them in place, a train came in with two or three cars loaded with pig iron to be put upon this spur track for the manufacturing company. In order to do this, defendant attached the train to the car where the plaintiff was at work, pulled it out, put the cars containing the iron on the spur, and then put the car in which plaintiff was working back again upon the spur. In doing this, it kicked the car down on the spur, which was down grade, without any one at the brakes to control it. It ran against the cars loaded with iron with such force as to overturn the seeders which plaintiff was steadying, tipping them over upon and injuring him. For this injury this action was brought, and, on the trial, plaintiff had verdict and judgment. Defendant brings error.

The testimony tends to show that, when the train backed down to pull this car out, several of the Dowagiac Manufactoring Company’s employés were loading these seeders into the car, and saw the train backing in, and some one of the trainmen said, “Throw np the platform;” and one of plaintiff’s co-employés said, “Look out! they are coming.” Plaintiff and some of the men working with him stayed in the car. In pulling the car backward and forward, the seeders in the ear were not disturbed, as the car was controlled by the train, and it was only when the car was kicked back against the cars loaded with iron that the seeders fell over, and injured the plaintiff. There was some testimony also tending to show that the conductor and brakeman, or one of them, knew that plaintiff and others were in the car, and that the seeders were being loaded, at the time the car was about to be pulled out, and also evidence tending to show that these trainmen knew that the seeders were not properly braced at that time to keep them in place. Plaintiff testified that he stayed in the car for the purpose of supporting these seeders.

It is contended by the defendant that the plaintiff, by remaining in the car after he knew it was to be switched about, was guilty of contributory negligence, and could not recover, and the court was asked so to charge. This was refused. It is also contended that there is no evidence showing, or tendirig to show, that the trainmen knew that any person was in the car during the switching.

The court instructed the jury that—

“'If the-plaintiff, in remaining in the car while it was being moved or switched, failed to use the care and caution ordinarily used under like circumstances by reasonably careful and prudent persons, he was guilty of negligence, and cannot recover; but if the plaintiff was not guilty of negligence, and if the proximate cause of the injury was the defendant’s negligence, the plaintiff can recover.”

The defendant insists that the facts conclusively show that the plaintiff was guilty of negligence, and that the court should not have left the question to the jury. It is further asserted that when the car was to be moved the plaintiff should have left it, and it was negligence to remain in it, as he had no orders from his employer to do so, and no consent from'the defendant to remain; that while the switching and momentum given the car when pushed back upon the spur track was not peculiar, or out of the ordinary manner of switching, yet the plaintiff knew it was not without danger, and took his chances.

We think the question of the plaintiff's negligence is not so clear that the court would have been justified in taking the case from the jury. It is evident that he knew the car was to be moved out, and put back again; but it cannot be said that he must have anticipated that it would be kicked with such force back against the car-loads of iron that the seeders would be thrown over upon him. He was inside a box car, and could not readily see how the car was being managed. He could not have seen how the cars loaded with iron were placed, with reference to the placing of the car he was in; and there is no testimony showing, or tending to show, that he knew defendant was to kick the car unattended by a brakeman back with such force against the other cars. He had supported the seeders with safety to himself while the car was being pushed back and forth, and it was only when it was' kicked back with force against the other cars that the seeders were overturned. The plaintiff was in the discharge of his duty to his employer in staying in the car, and looking after the seeders; and, whether he had the consent of the agents of the defendant company or not, they were apparently aware he was in the car, and knew the business which kept him there. They knew the, seeders were not fully braced. He had a right to expect, under the circumstances, that.the defendant would exercise some care in returning the car to its place. Staal v. Railroad Co., 57 Mich. 239. It is admitted that the ear was kicked back without a brakeman, though it was provided with a brake. It is also admitted that it is down grade, and it is shown that the car gained some considerable momentum before it struck the other cars. The question of the plaintiff's negligence was properly submitted to the jury.

The defendant asked the court to instruct the jury that—

'‘Before the plaintiff can recover, he must show by a preponderance of proof that the defendant knew and understood that he had remained in the car, and that, knowing that faqt, the defendant was guilty of gross carelessness and negligence in moving it about.''

This request was given. It is contended, however, that there was no testimony showing or tending to show that the servants of the defendant knew that the plaintiff was in the car. As we have said, we think there was some evidence from which the jury might well find that they did know that persons were in the car.

The questions involved were purely of fact, and, under a proper charge, the jury have found against the defendant.

The judgment is affirmed.

The other Justices concurred.


text:
    Emil C. Laethem v. The Fort Wayne & Belle Isle Railway Company.

      Street railways — Injury to person on track - Contributory negligence — Question for jury.

    1. Where the driver of a street car sees that the driver of a sleigh, which is standing so near to the car track as to necessitate its being struck by the car unless it is removed or the car is stopped, cannot remove his sleigh before the car reaches it, it is the duty of the car driver, if able so to do, to stop his car, and thus avoid the threatened collision.

      %. Where in such a case the car is not stopped, and a collision occurs, and, on the trial of a suit brought by the driver of the sleigh to recover damages for the injuries thereby sustained, the evidence tends to show that the plaintiff, who was a milk deliverer, had stopped his sleigh close to the car track to enable him to transfer a can of milk to the sleigh of a customer, which was standing alongside plaintiff’s sleigli, and as close to the street curb as it could get on account of a snowdrift which lay between it and the curb, and that, just as XJlaintiff was transferring the milk, he saw the car coming, and completed the transfer, and reached for his lines, but, before he could get out of the way, the car struck his sleigh and injured him, it is a question for the jury to determine whether the .plaintiff should have had his sleigh out of the way before the car reached the point where the collision oc urred, or whether the collision took place wholly by reason of the negligence of the car driver in failing to stop his car.
    3. While under an ordinance which provides that street oars “shall at all times be entitled to the track, and any vehicles upon the track shall turn out when any car comes up, so as to leave the track unobstructed,” and that the driver of any such vehicle who refuses to turn out shall be liable to a fine, etc., it is true that parties driving upon a street-car track, or so close to it as to impede the progress of the car, are bound to turn out, and give the car the right of way, the ordinance does not give ■ the street-railway company the right, by its drivers, to run any vehicle down and injure the person or property of another, under the circumstances stated in the preceding head-notes.
    Error to Wayne. (Hosmer, J.) Submitted on briefs April 6, 1894. Decided May 18, 1894.
    Negligence case. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Edwin F. Gonely and Orla B. Taylor, for appellant.

      James 11. Brewster, for plaintiff.
   Long, J.

This is an action brought to recover for injuries sustained by the alleged negligence of the defendant company.

The defendant operates a single-track street railway with horses in the city of Detroit. The plaintiff, on January 0, 1893, in the morning, was driving his milk sleigh on Champlain street. He stopped his sleigh, and took a can of milk from it into the sleigh of Miss Le Fevre, standing alongside of his. There was a snowdrift near the curb. Miss Le FevreV sleigh stood near the drift, and the plaintiff’s between hers and the railway track. The sleighs were close together, and the plaintiff’s stood very near the track. As the plaintiff was lifting the can out, with his horse headed towards the west, a two-horse car came from the west; and, before he could put the can into the other sleigh and get out of the way, the car struck his sleigh, overturned it, and injured him. As he saw the car nearing his sleigh, he threw the, can into the other sleigh, and reached for his lines. He knew that the car was coming, and that it overhung the track, and that his sleigh was so close that it might be struck. The driver of the car saw the plaintiff’s sleigh, but drove on without making any stop. Under these circumstances, the court directed the jury to determine whether the defendant exercised reasonable care, and whether the plaintiff, in the management of his sleigh as it stood there in the street, was exercising due care, and instructed them that if they found from the evidence that the plaintiff, while in the exercise- of due care, was injured by the negligent driving of the defendant’s servant, the plaintiff should recover. The jury returned a verdict in favor of the plaintiff for $300. Defendant brings error.

Defendant’s counsel cite certain other facts appearing from the testimoriy, and upon which it is claimed the court should have directed a verdict in favor of defendant. It is said by them that the plaintiff and Miss LeFevre were engaged there two or three minutes before the car struck the sleigh; that it is clear that the car was not only in sight of the plaintiff but very near him, when he placed the can upon the edge of Miss LeFevre’s .sleigh, and yet he did not look for a car until he had placed himself in this dangerous position; that, had he looked, he would have seen the car coming; that he knew cars were in the habit of passing along there frequently, as he had driven over that street every day for three or four years; that he was negligent, therefore, in attempting to put the can out .of his sleigh into hers without looking for a car, when he kneAV that his sleigh stood in such close proximity to the track that it might be struck by a passing car. It is contended that there was no excuse for deliberately putting himself in a place of danger.

We think the question was one for the determination of the jury. As was said in Rascher v. Railway Co., 90 Mich. 413, 415:

“The right of the railway in the street is only an easement to use the highway in common with the public. It has no exclusive right of travel upon its track, 'and it is bound to use the same cafe in preventing a collision as is the driver of a wagon or other vehicle.”

It is said by counsel for defendant, however, that the case is ruled by Joslin v. LeBaron, 44 Mich. 160, as the plaintiff deliberately placed himself in a place of danger. The facts in that case were that the plaintiff left his team unattended, so that the buggy to which they were attached stood diagonally out into the street, and so near the traveled part that, by backing one foot, it would be in the way of passing vehicles. His buggy was struck and injured by a passing vehicle. He brought suit for the injury, and his claim was that the defendant should have turned out so as to avoid the collision. But the Court said:

“ We think that, when it is found that Joslin [plaintiff] left his horses so hitched that so slight a backing as they made would necessarily bring the wheel into the traveled track, that was such negligence, in itself, as would preclude him from complaint from such a mishap.”

It appeared from the findings in that case that, when defendant's wagon was passing along the highway, plaintiff's horses backed the buggy about one foot, so as to produce the collision; and, had it not been for the backing of Joslin's team at that minute, defendant, who was driving in the beaten track, would not have hit the wheel of plaintiff's buggy, and caused the injury. The questions of fact in that case were submitted to the jury, and they found that the defendant was not guilty of negligence, as the accident would not have happened had not plaintiff's team backed up, and it appeared to have been left there unattended.

In the present case the driver of the car saw the situation, and must have known that if he continued on, and the plaintiff did not move, the car would 'hecessarily strike the sleigh. Instead of stopping, he continued on; and it was a question of fact for the jury to determine whether the plaintiff, under the circumstances, should have been out of the way when the car reached that point, or whether the accident occurred wholly by reason of the negligence of the driver of the car. He could have stopped his car, and avoided the injury. If he saw the plaintiff could not get out of the way in time to avoid a collision, it was his duty to stop the car.

But it is contended by defendant's counsel that, by the ordinance under which the road is operated, the car is at all times entitled to the track. Section 15 of the ordinance provides:

“The cars shall at all times be entitled to the track, and any vehicles upon the track shall turn out when any car comes up, so as to leave the track unobstructed; and the driver of any vehicle refusing to do so shall be liable to a fine not exceeding ten dollars upon conviction,” etc.

It is true that, under this ordinance, parties driving upon a street-car track, or so close to it as to impede the progress of the car, are bound to turn out, and give the car the right of way; hut this ordinance does not give railway companies the right, by their drivers, to run any vehicle down and injure the person or property of another, under the circumstances stated in this caáe. The plaintiffs claim was, and his testimony tended to show, that, when he did see the car coming, he made every effort possible to get out of the way. His sleigh was in full view of the driver, and, if the driver saw that he could not get out in time, he should have stopped. Whether the plaintiff was guilty of negligence in remaining there the length Of time he did, or in not having seen the car sooner, was a question for the jury. Under a proper charge from the court, the jury found that question in favor of the plaintiff!

The judgment is affirmed.

The other Justices concurred.


text:
    Edith A. McBride v. Emma A. McIntyre et al.
    [See 91 Mich. 406.]

      Trust — Accounting—Parties—Tender—Interest.
    A testator, after providing for the payment of $1,000 to one of his daughters in trust for his granddaughter, devised and bequeathed* the remainder of his estate, including sufficient personal property to pay the legacy, to the trustee and her two sisters. The devisees were given full control of the estate by the executor, who administered the will without paying the legacy. The devisees paid $430 to the trustee to apply on the legacy, and she placed it at interest pursuant to the directions of the will. The devisees afterwards paid the trustee, in several payments, the sum of $411, which several sums she paid to the granddaughter as she received them. The trustee tendered to the granddaughter the $430 with accrued interest, and she refused to accept the tender, and filed a bill against the trustee and her co-devisees for an accounting. And it is held:
    a — That the co-devisees were proper parties, and that an accounting might be had with them in said suit.
    b — That the trustee was not chargeable with interest on the $430 after the date of the tender.
    c — That the defendants should jointly account for the legacy, less the amounts paid to the trustee; that, in arriving at the amount due from them jointly, they should be charged with legal interest on the $1,000 up to the time of the payment of the $430; that the $430 should be deducted from said principal and interest; that legal interest should be computed on the new principal down to the date of the decree; that there should be deducted from the amount thus arrived at the $411, with legal interest on the several sums entering into said amount from the dates of their payment, respective^, down to the date of the decree; and that the remainder would be the amount which the complainant should recover against the three defendants.
    Appeal from Washtenaw. (Kinne, J.) Argued April 10, 1894. Decided May 18, 1894.
    Bill for an accounting. Complainant appeals.
    Decree modified and affirmed.
    The facts are stated in the opinion, .and in 91 Mich. 40G.

      Randall é Corbin (Thompson & liar riman, of counsel;, .for complainant.

      A. J. Sawyer and J. C. Knoivlton, for defendants.
   Long, J.

This case was in this Court upon demurrer .at the April term, 1892, and is reported in 91 Mich. 406. The demurrer was overruled, with leave to answer. Complainant's claim under the bill was fully set out in the former opinion. The canse has now -been tried upon the merits* and decree entered' in favor of the complainant, who, not being satisfied with that decree, as to amount, appeals. The decree provides:

“1. Said defendants shall be charged with the amount of said legacy of $1,000, with interest thereon at the rate of 6 per cent, per annum from the 8th day of May, 1877, to this date, amounting to the sum of $1,947, less the sum of $4-11, and interest thereon at the rate of 6 per cent, per annum from the date of each separate payment, amounting to the sum of $490.83, and also less $700 in the hands of said defendant Emma A. McIntyre, together with interest on the same from the date of said tender to the present time, amounting to the sum of $82.83.
“2. It is ordered, adjudged, and decreed that said defendants pay to said complainant the sum of $673.34, together with the interest and costs to be taxed, within 30 days from this date; and that said sum is a lien upon the interest o'f all of said defendants in the real estate described in the bill.
“3. It is further ordered, adjudged, and decreed that-said defendant Emma A. McIntyre pay to said complainant, within 30 days from this date, the sum of $700, with interest thereon from this date; that said sum is a lien upon the interest of said defendant Emma A. McIntyre in said real estate.”
4. The decree orders a sale of the real estate to pay these several amounts.

Complainant’s contention is that the court should have decreed:

1. That defendants be charged with interest at the highest rate they could have obtained for the money, with annual rests, on the $1,000, from May 8, 1877; from the principal and interest thus found to be due on August 30, 1882, to be deducted the sum paid Emma A. McIntyre on that day; in like manner, interest to be computed until the several payments aggregating $411 were made, which should be deducted, and interest computed on the balance to date; the sum thus found to be charged against all the defendants, and the defendant Emma A. McIntyre to be charged in like manner with interest upon $430 to date, and the sum thus found to be a charge against her.
2. That, if the interest is not to be charged with annual rests, then defendants should pay the highest rate of interest which they might have obtained, and the computation should be made as follows: That interest should be computed from May 8, 1877, to the present date, and from the amount thus found should be deducted 1411, interest paid at various times to complainant, and also $430, the amount paid Emma A. McIntyre August 30, 1882; that this is on the supposition that the interest which had accumulated on August 30, 1882, amounted to $430 and over; that if a part of the $430 is, however, principal, then the interest upon so much as is principal should be computed to the present time, added to the $430, and the sum taken from the amount previously found due, less $411; that the amount remaining is the sum to be charged against all of the defendants, and that Emma A. McIntyre should be charged with interest upon the $430, at the same rate, to the present time, and the sum thus found is the amount to be charged against her.

To determine the rights of the parties, it is necessary to state some facts which were made to appear upon the trial. There is no conflict of testimony. At the hearing the defendants and other witnesses were put upon the stand by the complainant. No witnesses were sworn in behalf of the defendants.

It appears that the testator,. Joseph Shaw, provided in his will that $1,000 should be paid to Emma A. Shaw (now Emma A. McIntyre), one of the defendants here, in trust for complainant, to be paid her upon her marriage, or upon her attaining the “age of 21 years. She is now past 21. Dwight Hunt, the executor named in th^ will, administered the estate, but did not pay the amount of 'the legacy. There Avas some personal estate left by the testator, besides the lands; and the defendants seem to have had full control of the estate, the executor giving no attention to it whatever. The $1,000 was not provided, therefore, to pay this legacy; but on August 30, 1882, there was placed in the hands of Emma A. McIntyre, by the defendants, the sum of $430, as a part of the legacy. It was also shown that there were paid into the hands of Emma A. McIntyre, for the complainant, several sums of money, aggregating $411, which sums were paid over to the complainant by her as soon as received. These payments commenced September 1, 1888, and ended May 12, 1890, and were in small sums, ranging from $5 to $35, except one payment made in January, 1890, of $213. The $430 which came into Mrs. McIntyre’s hands was put out at interest by her, and the principal and interest amounted in March, 1891, to $700, which she tendered to complainant, by whom it was refused. This was after complainant became of age.

The court below decreed that Mrs. McIntyre should pay to the complainant this $700 within 30 days from the date of the decree. Complainant’s counsel contend that she should be charged with the interest from the date of the tender, in March, 1891, to the date of the decree. We think not. It is admitted that this was the only amount that came into the hands of Mrs. McIntyre, personally, for the complainant, and the amount which she tendered included the principal, and all interest which she had received upon it.

We think the court, however, was in error in the interest computed against the three defendants jointly. The will provided as follows:

“To my daughter, Emma A. Shaw, $1,000, in trust for my granddaughter, Edith A. McBride; said thousand dollars to be put out at interest by said trustee, and said interest to be added annually to the principal, until said Edith A. McBride shall have attained the age of 21 years.”

It was also provided that—

“If at any time during the minority of said Edith A. McBride, and before her marriage, within that time, said trustee shall consider and believe that it would be for the. best interest of said Edith A. McBride to expend any part of said interest for the better education and comfort of said Edith A. McBride, then and in that case said trustee is empowered and shall expend any part of said interest for that purpose in any manner said trustee may think most conducive to that end.”

The defendant Emma A. McIntyre was trustee, but no funds came into her hands from the estate, except those .above specified. It was held in the .former opinion that the other defendants were proper parties, and that an accounting might be had with them. They had the benefit of the estate, with Mrs. McIntyre, and the estate was charged with this legacy. They should therefore jointly account to the complainant for that part of the legacy, and the interest upon it, which was not paid over to Mrs. McIntyre. Mr. Shaw died March 28, 1876. Complainant's counsel do not contend that the amount of the legacy should draw interest, except from May 8, 1877. Interest should be charged upon the $1,000 from that date to August 30, 1882, that being the date when the $430 was paid over to Mrs. McIntyre. The legal rate of interest at that time was 7 per cent, and defendants should be charged with that rate. The time is 5 years, 3 months, and 22 days. The interest would amount to 8371.80, which, added to the amount of the legacy, would produce $1,371.80. Deducting the amount paid* Mrs. McIntyre, of $430, would leave in the hands of the defendants $941.80, which, including the interest from August 30, 1882, to the date of the decree below, — 10 years, 4 months, and 13 days, — at 7 per cent., would amount to $1,635.40. Deducting from this the amount paid over by the defendants into the hands of Mrs. McIntyre, $411, with interest at 7 per cent, from the various times of joayment, calling the time about 3 years and 6 months, and the interest $100.69, making a total deduction of $511.69, would leave $1,123.71 as the amount the complainant should recover against the defendants, jointly, together with the interest on the same from the date of the decree below to the date of payment, over and above her costs of this Court. With this modification the decree of the court below will stand affirmed.

The other Justices concurred.


author: Loara-, J.

text:
    George Tate v. Michael Torcoutt.

      Chattel mortgage — Contract — Pleading — Amendment — Directing verdict — Waiver.
    1. Where, on sustaining an objection to the introduction in evidence of a written contract because not specially declared upon, leave is given to the plaintiff to amend the declaration, and the court suggests to the plaintiff that the better way to test the question is to have a verdict directed in favor of the defendant, and then go to the Supreme Court, and the plaintiff acquiesces in the suggestion, and consents that a verdict may be directed against him, he waives his right to amend the declaration, and cannot assign as error the refusal of the court to permit him to do so.
    2. Where the purchaser of a portion of the property covered by a chattel mortgage agrees in writing with the mortgagee safely to keep and care for the property so purchased until the mortgage debt matures, and then to deliver it to the mortgagee, or pay him a specified sum, if he fails to recover the full amount his due out of the remainder of the property, the plaintiff must specially declare upon the agreement in a suit to recover damages for its breach.
    Error to Newaygo. (Palmer, J.) Submitted on briefs April 11, 1894. Decided May 18, 1894.

      Assumpsit. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      James Brassington, for appellant.

      L. G. Rutherford, for defendant.
   Loara-, J.

November 18, 1890, the plaintiff loaned to one Alphens Tibbitts §150, and to secure the money he took from 'ffibbitts a chattel mortgage on a quantity of personal prop ;y, among which was a span of horses. Before the mortgá e became due, Tibbitts, contrary to the terms of it, remo red the horses out of the county of Oceana, where the mortgage was given, and sold them to the defendant, who lived at that time in the county of Newaygo. The plaintiff, learning of that fact, on January o, 1891, went to the defendant's residence, where a written agreement was drawn up between them, as follows:

“This agreement, made and entered into on this 5th day of January, 1891, as follows, to wit: Michael Torcoutt hereby agrees that he will safely keep and care for a certain span of horses heretofore mortgaged by Alphens Tibbitts to George Tate [until such mortgage becomes due, .and that he will then deliver them over to said George Tate, or pay the sum of §65, provided the said Tate shall fail to recover the full amount of his due out of the balance of the property covered by such mortgage].
“Dated at Beaver, Mich., this 5th day of January, 1891.
“ [Signed] Michael Torcoutt.
“Witness: A. J. Spencer.''

The words inclosed in the brackets had a pencil line drawn through them, and interlined in pencil were the words, “Not agreed to.'' When the mortgage became due, the plaintiff went to the defendant's place of residence, and took the horses into his possession, and drove them back into Oceana county. Torcoutt thereupon replevied them from Tate. The suit was tried in Oceana county, and a verdict found in favor of Torcoutt. No appeal was taken from this judgment, and Torcoutt retained the horses. Tate thereafter advertised and sold the balance of the property covered by the chattel mortgage, which sale did not bring sufficient to satisfy his demand under the mortgage, and he then made demand for the horses, which demand was refused. He then brought suit in justice's court against the defendant on the common counts in assumpsit. On the trial of this cause in the circuit court, the plaintiff, having shown the facts herein recited, offered in evidence the contract, the chattel mortgage, notice of sale, etc., which were objected to on the ground that they were inadmissible under the pleadings. The court sustained the objection, and stated:

“From the statement of the counsel representing the plaintiff, giving in detail the facts and circumstances upon which he relies to support the declaration in this case, my judgment is that the declaration is not sufficient to admit any evidence, and I therefore hold the objection good.''

The court further said to plaintiff's counsel:

“Do you want me to direct a verdict in this case, or what course will you pursue?''
Plaintiff’s Counsel: “We will ask leave to amend the declaration.''
Defendant’s Counsel: “'We object to it. There is nothing here to amend.”
The Court: “ The trouble is, they claim, upon the other side, the declaration does not state a cause of action. It states the cause of action upon a common-count declaration. It might, but for the statement of counsel. I am inclined to think I will allow you to amend the declaration, if you desire to, upon the usual terms, and T will leave it optional with the other side to go to trial at this term or the nest term. The better way is, if you wish to test this, to have me direct a verdict, and you may then go to the Supreme Court.”
Plaintiff’s Counsel: ■ “ I think so, and you may direct a verdict.”

Upon the state of facts in the case as presented upon the record before us, the agreement between the parties was as set forth in the writing. It was upon this agreement that the plaintiff was entitled to recover, if at all. He had demanded the horses. His chattel mortgage covered .them, and the balance of the property had been found to be insufficient to meet his demand. In his declaration he had set out the full writing, and claimed that-that was the agreement which defendant -had signed. That question was submitted to the jury in the Oceana county trial of the replevin suit, in which the court, directed the jury as follows:

Plaintiff claims that on or about the 5th day of January, 1891, defendant entered into the written agreement of that date which has been received and admitted in evidence, and read in your hearing. Defendant denies that he made such an agreement, and insists that he did not, but struck out a part óf it, and only assented'to a part of it. * * * The main question in the case is as to what, if any, agreement was made between the parties. If you are satisfied, from a fair preponderance of the testimony, that defendant assented and agreed to the written agreement, and to the-whole of it, then the plaintiff was entitled to the possession of the property until defendant did what he agreedto in that written agreement, and your verdict should be-for plaintiff. If you find that the defendant did not agree- and assent to the whole of said written agreement, then your verdict should be for the defendant, if you find that he took the property from plaintiff, as he claims, under and by virtue of the chattel mortgage, and because it had been violated as defendant claims.”

It was claimed by the plaintiff in that suit (Mr. Torcoutt) that the whole writing was to be read together as. constituting the agreement between the parties, and, if- the jury found that to be the contract, it removed the lien of the mortgage upon the horses, but that if the property remaining in the hands of the mortgagor failed to satisfy the mortgage, and plaintiff in that suit refused or neglected to pay the difference, not to exceed $65, then Tate would be entitled, under this agreement, to. take the horses and sell them, and keep enough to satisfy the balance due upon the mortgage, and pay Torcoutt any balance over that amount. Mr. Tate's theory was — and he was defendant in that case, but plaintiff .in the present one — that he assented only to that part of the writing which remained after striking out the words through which the pencil lines were drawn. It appears from the verdict of the jury that they found in favor of the plaintiff's theory; that is, that the whole writing constituted the agreement between the parties. That question is therefore settled, and we must regard the contract in the present suit as made up of the whole writing. According, when the plaintiff in the present case made his demand for the payment of the moneys due under the contract, or the delivery of the property, Mr. Torcoutt was in duty bound to surrender the property or to pay the amount, not exceeding $G5, which Mr. Tate failed to realize by the sale of the other property covered by the chattel mortgage. But Mr. Torcoutt had his option either to pay the amount or deliver up the horses. He refused to do either. The plaintiff's remedy, therefore, was an .action for breach of the contract, and his damages would he the amount which he failed to realize from the sale of the balance of the mortgaged property, not exceeding §65; ■or he might have had the right to replevy the property, .and subject it to sale under his mortgage, and, after realizing the amount his due, pay over the balance to Mr. Torcoutt. If he brought his action for breach of contract, he should have declared specially upon the contract, and for the breach. He could not recover under the common counts in assumpsit.

As counsel for plaintiff assented that the verdict might be directed, he waived his right to amend his declaration, and has now no reason to complain of the action of the court.

Judgment is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    Albert L. Chandler v. V. L. Parsons et al.

      Mortgage foreclosure — Parties—Fraudulent conveyances.

    "Where land is conveyed in good faith, and in consideration of the agreement of the grantee, the performance of -which is secured by a mortgage on the land, to furnish the grantor with a life support, the land is not subject to levy and sale under an execution issued upon a judgment against the grantor, and the execution creditor has no interest in proceedings to foreclose the mortgage.
    Appeal from Shiawassee. (Newton, J.) Submitted on briefs April 6, 1894. Decided May 18, 1894.
    Bill to foreclose a mortgage. Defendant Parsons appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      Albert L. (Chandler, in pro. per.

      James M. Goodell, for ajipellant.
   Hooker, J.

On March 14, 1892,.George Eaton owned and inhabited a small dwelling in the city of Corunna. Being old and feeble, sick, and without means, he applied to defendant Whitely to permit him to transfer the property to him for his support. The negotiations resulted in an agreement whereby the Wliitelys agreed to support him for the remainder of his life, in consideration of the property, which was conveyed to them. EatoAs earnings, if any, were to be used towards his support. A mortgage upon the premises was executed and delivered to Eaton by the Whitelys to secure the performance of the contract, and both were duly recorded. Eaton thereafter lived with the Whitelys for about seven months, when they disagreed, and lie went to New York, where he has since remained. Whitely expended some money upon the place, and then sold it for &450j but has not„received payment in full; the purchaser, defendant Stafford, withholding it until this .suit shall be determined. In September, 1892, defendant Parsons caused an execution issued upon a judgment against Baton to be levied upon the place. Subsequently, Baton assigned his mortgage to the complainant, who filed this bill to foreclose, making the Whitelys, Stafford, and Parsons defendants, of whom Parsons was the only one who answered. The circuit court rendered a decree in favor of the complainant, from which defendant Parsons appealed.

The transfer to the Whitelys appears to have been made in good faith, upon a sufficient consideration, and the premises were not -subject to levy upon a judgment against Eaton. It follows that Parsons has no interest in the proceedings to foreclose the mortgage.

The decree of the circuit court will be affirmed, with costs against the appellant.

The other Justices concurred..

       The judgment was rendered September 26, 1892, upon a note given April 2, 1887.


author: McGrath, O. J. McGrath, C. J.

text:
    Cora B. Von Eherenkrook v. Oscar Webber and Clarence W. Chapin.

      Alteration of instrument — Burden of proof — Evidence. ,,
    1. Where, in a suit brought to recover money deposited with a banking firm, the plaintiff claims that a certificate of deposit was issued to her, which she afterwards indorsed in blank and delivered to one of the defendants, to be placed to her credit and checked out for the use of a firm of which she was a member, and the defendants claim that the certificate was indorsed so as to be payable to another firm, of which plaintifi’s husband had been a member, and was placed to their credit, and the certificate, on being introduced in evidence by the plaintiff, bears such latter indorsement, which the plaintiff claims was made, except as to her name, after she had indorsed the certificate in blank, the burden is upon the defendants to substantiate their claim as to said indorsement.
    2. One of the defendants having testified that, when plaintiff indorsed the certificate, she told him that her husband had sent word that he wanted the money placed to the credit of the firm of which he had been a member, plaintiff called her husband, and he was asked if he had sent such word, and replied that he had not. And it is held that this testimony was admissible as bearing upon the probabilities.
    Error to Montcalm. (Smith, J.) Argued January 3, 1894, and resubmitted September 25, 1894.' Decided April 17 and November 7, 1894.

      Assumpsit. Defendants bring error.
    Affirmed.
    The facts are stated in the opinion.

      Ellis, Nichols & Miller, for appellants.

      Gluts & Glute (Lyman Q. Moore, of counsel), for plaintiff.
   McGrath, O. J.

Defendants are bankers. Plaintiff, in October, 1890, borrowed upon a mortgage of her individual property, and deposited with defendants, the sum of 1475.25, taking therefor a certificate of deposit. Her husband had been a partner of the firm of E. Curtis & Co., but that firm had dissolved in August, 1890. Curtis & Co. were indebted to defendants upon certain notes, and defendants held a deed of lands as collateral. Plaintiff had recently entered into partnership with her husband’s brother, under the firm name of George B. Eherenkrook & Co.; and her claim is that the said certificate of deposit was indorsed in blank by her, and delivered to defendant Clarence W. Chapin, to be placed to her credit, to be checked out by her for the use of said firm, but that afterwards defendants refused to honor checks drawn against it. Plaintiff brought assumpsit on the common counts, and had judgment, and defendants appeal.

The certificate was delivered to Chapin in the highway-near plaintiffs residence, and was indorsed in pencil. Defendants insist that, before said indorsement, Chapin had written upon the back of the certificate, in pencil, the words, “For E. Curtis So Co., account,” and that plaintiff made the indorsement under such writing. The plaintiff put the certificate in evidence, at the same time insisting that the words, “For E. Curtis & Co., account,” were not upon the certificate when it passed from her hands. Defendants insist that the burden was upon plaintiff to show that the words, “For E. Curtis So Co., account,” were not upon the back of the certificate when the same was indorsed by plaintiff, and complain of the following instruction given to the jury:

“ Now, the burden of proof, in the outset of every case, is upon the plaintiff. The burden would be upon her to show that she left this money at the bank, and, in this case, that she had asked for it, and the payment had been refused. That she has done. Stopping right there, she makes a case, and is entitled to recover. Now, the defendants come into the case, and say, ‘We have applied this money the way you have directed us to. We have paid this money to E. Curtis So Co. You consented or directed that we should do it/ Now, as to that question, the burden is upon the defendants. They have the burden of proof to show that that was done, in order to release them from their liability.”

Plaintiff relied upon the certificate to show the original deposit, the obligation issued to her, and its surrender. Defendants relied upon the indorsement, and the words preceding the same, to corroborate their claim that they had been instructed to place the amount to the credit of E. Curtis So Co. Plaintiff insisted that the indorsement was in blank, and that the words, “For E. Curtis & Co., account,” were not upon the paper when she signed it. Plaintiffs denial raised an issue respecting a writing which defendants relied upon; and thay had the affirmative of that issue, the burden being upon them to satisfy the jury upon that question.

It may be urged that the introduction of the certificate, with the words in question and the indorsement upon it, made a prima facie case for defendants. The same may be true in any suit upon an instrument which shows an erasure, or words recast, or an interlineation, .yet, if the party sought to be charged has raised an issue respecting such erasure and interlineation, the burden is thrown upon the party relying upon the instrument. Plaintiffs suit is not planted upon the certificate. She insists that she did not give such a writing as the defendants rely upon; that her indorsement upon the certificate was for another purpose; that such indorsement and the delivery completed the transfer, without the addition of other words; and that, by the interpolation of the words in question, defendants have changed the character of the writing.

In Willett v. Shepard, 34 Mich. 106, defendants admitted the signature to the note sued upon, but insisted that in the clause “ten per cent, interest after due, value received,” the printed words “after due” had been erased. The Court held that the bare fact of the erasure raised no legal |3resnmption that the words had been stricken out after execution, and that until there was opposing evidence the note was properly to be regarded as affording sufficient inferential and presumptive evidence in support of the allegation of plaintiff to constitute a prima facie case in his favor.

“ When, however,” say the Court, “the plaintiffs in error went into general evidence to controvert the case of the defendant in error, and prove the alteration fraudulent, the issue depended no longer upon the presumptions which are rightly indulged Avheré there is no legal dispute; but the question was then to be contested upon relevant facts and circumstances, and decided by the jury according to tlie weight of the evidence. * * * The controversy began with the claim made by defendant in error that the note, in substance and effect as it now appears, was made by the plaintiffs in error, and this the latter denied; and on this issue, and with the parties in these'relative positions, the litigation has invariably proceeded. There has never been any change. It was incumbent on defendant in error, in every stage, to maintain his side of that issue by a preioonderance of evidence.”

In Comstock v. Smith, 26 Mich. 306, it was held that where plaintiff relied, as a basis of recovery, upon a clause in a deed which was claimed to have been written over an erasure, the burden of proof as to the genuineness of the clause was upon him, and in such case there was no presumption of law that the clause in question was seasonably or unseasonably made which shifted this burden.

In Simpson v. Davis, 119 Mass. 269, it was held that where the issue is raised the burden is upon plaintiff to show that the note declared on is the defendant’s note; that the same rule applies as when want of consideration is relied upon.

It is true that in each of these cases an interlineation or erasure appeared upon the face of the instrument; but there is no good1 reason why the, same rule should -not be applied in cases like the present, arising between the parties to the writing, where the signature has a definite purpose, independent of the words appearing over it, where the disputed words are in the handwriting of the party relying upon them, and the party charged denies their existence at the time of the signature. A material alteration is none the less a forgery than the writing in, of a note or other obligation over one’s signature, and there is no better reason for indulging in presumptions in the latter class of cases than in the former.

In Crutchly v. Mann, 5 Taunt. 529, 1 Marsh. 29, A. drew a bill on B., leaving a blank for the payee’s name. The bill was delivered to 0., who inserted his own name. Lord Mansfield held that plaintiff ought to have proven that he was authorized to insert his own name.

Mr. Greenleaf says:

“The eases all agree that where any suspicion is raised as to the genuineness of an altered instrument, whether it be apparent upon inspection, or made so by extraneous evidence, the party producing the instrument, and claiming under it, is bound to remove the suspicion by accounting for the alteration.” 1 Greenl. Ev. (14th ed.) p. 655, note.

On the same page the author gives the rule laid down in Walters v. Short, 10 Ill. 252, viz., that where the instrument, by the rules of practice, may be used as evidence, the oath of the party sought to be charged is deemed sufficient to destroy the presumption of innocence, in regard to the alteration, and to place the instrument in the condition of a suspected paper.

The certificate in the present case was not intended to be reissued. The indorsement of Curtis & Co. does not appear upon it. It was surrendered to the maker, and the indorsement was evidence of its payment. The interpolation of the disputed words would give the indorsement a purport and effect not contemplated by an indorsement in blank. Why, then, may not such interpolation be treated as an alteration, and subject to the same rules as any other interpolation? It is true that the interpolation does not appear upon the face of the instrument, but the genuineness of the instrument is denied, and the. suspicion is aroused by extraneous evidence, by the oath of the plaintiff, and the fact that the words by which the plaintiff is sought to be charged are in the handwriting of the party claiming the benefit of them.

Defendant C. W. Chapin testified that, when plaintiff indorsed the certificate, she told him that her husband had sent word that he wanted the money placed to the credit of E. Curtis & Co. Plaintiff called her husband, and he was asked if he had sent word to his wife to have the money turned over to E. Curtis & Co., and he replied that he had not. This testimony was clearly incompetent, and the motion to strike out should have been granted. Inasmuch as the judgment must, for this error, be reversed, it is unnecessary to discuss at length the other' questions raised.

It was proper to show that defendants had received from E. Curtis & Co. a conveyance' to secure the bank, and that defendants retained the security after they claim' to have received the deposit, and up to the time of the trial. This was a circumstance bearing upon the probabilities. There was evidence tending to show that defendants knew that the purpose of this deposit was not its absorption by an existing indebtedness. Plaintiff testified that the formation of the new partnership was talked over with defendants at the time of the indorsement of the certificate, and Clarence W. Chapin testified that plaintiff told him that the purpose of the deposit was to check against it. At that time the account of E. Curtis & Co. was overdrawn, and the bank held their past-due notes, the amount of which, with the overdraft, . absorbed the certificate, and left $141 still due the bank from E. Curtis & Co.

The judgment is reversed, and a new trial ordered.

Long, Grant, and Hooker, JJ., concurred with Mc-Grath, O. J. Montgomery, J., concurred in the result.

Upon plaintiff’s application, a rehearing was granted June 16, 1894, the case again submitted, and the judgment below affirmed by the following opinion, filed November 7, 1894:

McGrath, C. J.

Upon rehearing, we are satisfied that the testimony of the plaintiff’s husband as to the fact that he had not sent word to his wife to have the money turned over to E. Curtis & Co. ivas admissible. The defendants sought to show upon cross-examination of plaintiff, and insisted upon' the trial, that the money in fact belonged to E. Curtis & Co. Plaintiff denied this. Her husband had been a member of that firm. After these facts had been brought out, it would have been competent to show by plaintiff, as bearing upon the probabilities, that no such word had been sent by the husband. It Avould also have been competent for defendants to show that the husband had actually given directions respecting it. Stewart v. People, 23 Mich. 63, 73; Riley v. Conner, 79 Id. 497; Banghart v. Hyde, 94 Id. 49.

The judgment of the court beloAV is therefore affirmed.

The other Justices concurred.


author: Long, J..

text:
    Eliza Jane Forrest v. John A. Johnson.

      Pleading — Recoupment.
    No damages can be recouped except such as spring out of the contract upon which suit is brought; citing Molby v. Johnson, 17 Mich. 382.
    Error to Manistee. (Judkins, J.) Submitted on briefs April 12, 1894. Decided May 18, 1894.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Smurthtuaite <& Fotoler, for appellant.

      Dovel é Smith, for plaintiff.
   Long, J..

Plaintiff, doing business under the name of Forrest Bros., commenced suit against the defendant, filing a declaration on the common counts in assumpsit. ¡She filed a bill of particulars, showing dealings between the parties extending oyer a period from July 17, 1891, to some time in January, 1892, amounting to several hundred dollars. The defendant pleaded the general issue, and gave notice of set-off and recoujDment. Before the cause came on for trial the parties met together, and settled all their matters of difference except one item of $300. The controversy over this item grows out of the following letter and answer thereto:

“Flint, Mich., 11 — 5th—'91.
“J. A. Johnson,
“ Manistee, Mich.
“Dear Sir: Send in your bill for all claims to date, and we will have bank allow on your draft to-day. Q-ive us credit for the $25 allowed you. As to the old hay, we will allow you $300, to remain' until 1st of February, 1892. This would be better for us and for you, as we will have to send a man to Manistee to peddle it out. Wish we had not shaped it. We get $11.50 for that same hay on F. & P. M., and in Lndington. Wire on receipt of this, at our expense, if you accept our proposition. Do not delay this. You should fill up your warehouse with hay. We have made a mistake in selling so far ahead. We find that all the hay that can reach Manistee at a reasonable rate of freight will be cleared up this month.
“Yours truly,
“ Forrest Bros.”

In answer to this the defendant sent the following telegram :

“November 7, 1891.
“ I accept your offer on all old hay here.
“J. A. Johnson.”

Defendant insisted upon the trial that the foregoing proposition and acceptance should he construed as a deduction of the $300 out of the whole account for old hay, while the plaintiff contended that the true interpretation of the agreement was that the defendant was to have until February 1, 1892, to pay the $300, and that all the proposition amounted to was an extension of time until that time to pay it. The defendant also contended that, notwithstanding the agreement and settlement of the other items of the account, he had a right to recoup damages growing out of those other items against the $300, even if plaintiff’s contention were right. It appeared that the damages which defendant sought to recoup did not grow out of the same contract under which the claim for the $300 was made by the plaintiff. The court directed that the true interpretation of the proposition and acceptance above set forth was as claimed by the plaintiff, and also that the defendant could not recoup damages growing out oí other contracts and set off such damages against the $300.

The court was dearly correct in the instruction that the proposition and acceptance amounted to no more than an extension of time to February 1 to pay the $300, and also right in saying to the jury that the damages growing out of the other contracts could not be recouped against that item. No damages can be recouped except such as spring out of the contract upon which suit is brought. Molby v. Johnson, 17 Mich. 382.

The judgment is affirmed.

The other Justices concurred.


text:
    Henry Gemberling v. Barbara E. Lazarus.

      Practice in Supreme Court — Findings of fact — Exceptions—Motion for new trial — Statutes.
    1. A party who desires to review a judgment rendered in a case tried before the court without a jury, and to question the conclusions reached by the court upon the facts and law, must have written findings, both of fact and law, and must take his exceptions thereto; citing Haines v. Saviers, 93 Mich. 440.
    2. Act No. 134, Laws of 1893, which provides “ that in all cases hereafter taken to the Supreme Court on writ of error or appeal, where a motion for a new trial has been previously refused by the trial judge, the party appealing the same may incorporate in the bill of exceptions a record of all proceedings had on said motion for a new trial, including the reasons given by the trial judge in refusing to grant said new trial,” and that “exceptions may be taken and error assigned on the decision of the circuit judge in refusing such motion, and the same shall be reviewed by the Supreme Court,” does not apply where the motion was decided, and writ of error issued, before the act took effect.
    Error to St. Joseph. (Loveridge, J.) Submitted on briefs April 12, 1894. Decided May 18, 1894.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Newton H. Barnard, for appellant.

      R. R. Pealer and George E. Miller, for plaintiff.
   Long, J.

This cause was tried before the court without a jury, and no exceptions were taken to any of the rulings of the trial judge; and no written findings of fact or law were requested, and none were made. All the testimony is returned into this Court, and upon which counsel for defendant asks this Court to review the action of the trial court. "We have repeatedly declined to do this. If a review is desired in this Court, where a trial has been had before the court below without a jury, written findings of fact and law must be asked for and had, and exceptions taken thereto. The case is ruled by Township of Cumming v. Schick, 94 Mich. 222, and Haines v. Saviers, 93 Id. 440.

It is claimed, however, that a motion for a new trial having been made and overruled, and those proceedings having been incorporated in the bill of exceptions, the cause should be heard here upon that motion. Act No. 134, Laws of 1893, provides that, where a motion for a new trial has been previously refused by the trial judge, the party appealing may incorporate in the bill of exceptions a record of all proceedings had on said motion for a new trial, including the reasons given by the trial judge in refusing to grant said new trial, and exceptions may be taken and error assigned on the decision of the circuit judge in refusing such motion, and the same shall be reviewed by the Supreme Court.

1. It may be said that it does not appear that any exceptions were taken to the reasons given or decision made by the circuit judge in refusing to grant a new trial.

2. The motion for a new trial was decided January 5, 1893. The writ of error in the cause was issued May 12. The act above referred to, under which the right was claimed, was approved May 27, 1893, and did not take effect until the lapse of 90 days from the last day of sitting of the Legislature; so that the act was not in effect at the time the motion for a new trial was decided, or when the writ of error was issued in this cause.

Judgment is affirmed.

The other Justices concurred.


text:
    Stina Johnson v. Andrew Johnson et al.

      Liquor traffic — Sale to husband — Civil action — Damages.
    Where, in a suit by a wife to recover for injuries to her means of support sustained by reason of the sale of intoxicating liquor to her husband after the defendant had been served with hotice not to sell to him, there is evidence from which it is competent for the jury to find that plaintiff’s husband commenced a protracted, continuous debauch on a given day by drinking at the defendant’s saloon, and that his spree lasted for a given period, and the jury do so find, the defendant is liable for all damages resulting therefrom.
    Error to Manistee. (Judkins, J.) Submitted on briefs April 12, 1894. Decided May 18, 1894.
    Case. Defendants bring error.
    Affirmed.
    Tlie facts are stated in the opinion.

      Dovel é Smith, for appellants.

      Smurihiuaite & Foioler, for plaintiff.
   Hooker, J.

Defendants appeal from a judgment of $200, rendered in an action based upon sales of intoxicating liquor to plaintiffs husband, who was a painter by trade. He was a temperate man, but acquired a taste for liquor through its use for a medicine, — it having been prescribed by a physician, — and plaintiff found it necessary to serve notice upon saloon keepers not to sell to him. On July 23 and 24 he bought some liquor of defendant Johnson, and became intoxicated. There is evidence that he continued under the influence of liquor until August 9, when he was arrested and put in jail for drunkenness. Plaintiff thereupon brought this action against defendant Johnson and his bondsmen.

We cannot accede to the proposition that a verdict should have been directed against the plaintiff upon the evidence. There is testimony tending to show sales on the two days mentioned, and that during the period of'his intoxication the plaintiff was injured in her means of support. It was therefore a case for the jury.

Defendants’ counsel contend that the court should not have permitted the jury to award damages .except as they were traceable to the sales of July 23 and 24, and claim that the effect of the liquor purchased upon those days from the defendant Johnson must, of necessity, have soon passed away, and that the defendants ought not to be held for the consequences of sales subsequently made by others. The theory upon which the plaintiff proceeded was that her husband was continuously drunk from the time when the liquor was sold to- him upon the 23d, until his arrest,, and that such condition was caused or contributed to by each drink that he took. There was evidence from which it was competent for the jury to find that plaintiff’s, husband commenced a protracted debauch on the 23d and 24th of July, by drinking at the defendant’s saloon, and that his spree lasted until August 9. If they did so find,, all whose sales of liquor contributed to such continuous intoxication were liable for all injuries resulting from such intoxication after the respective sales. Black, Intox. Liq.. § 299. As the jury may have found that the debauch was continuous, and that defendant Johnson’s sale was at its beginning, defendants were liable for all damages resulting therefrom. It follows that the court was right in refusing to direct a verdict for the defendants.

As all of the questions discussed in the-brief of counsel for the defendants are based upon this question, it is unnecessary to allude to them.

It is said by counsel that the court allowed the jury to find damages for sales from March 1 to the time of the arrest, in August. On tbe contrary, tbe court distinctly limited tbe recovery to tbe debauch beginning July 23.

Judgment affirmed.

Tbe other Justices concurred.


author: Grant, J.

text:
    Thomas R. Van Wert v. The Olney & Judson Grocer Company.

      Sale — Passing of title.

    The owner of a stock of groceries, estimated to be worth from $700 to $800, ¿greed to exchange it for certain city lots, the price of which was fixed at $750. The lot-owner was to assume the payment of debts of the grocer to the amount of $175, and the purchase price of the lots was to be paid by applying on tlie contract for their sale and conveyance the amount of the invoice of the groceries, thereafter to be taken, less the $175, .and the remainder in annual payments of $50 each. A bill of .sale of the groceries was executed and delivered to the lot-.owner, who executed the contract for the sale and conveyance ■ of the lots, which was left with the scrivener at the request .of both parties. The key of the store was delivered to the lot-.owner, and it was agreed that the store should be kept open for business, and that the amount of the sales of groceries ■made without being inventoried should be added to the amount ■of the invoice. The lot-owner took possession of the store, .and commenced doing business. One of the creditors, whose debt had been assumed, demanded payment of the debt, and was informed by the lot-owner that he would pay it, but needed a little time, whereupon the creditor secured a chattel mortgage on the groceries to secure the debt from the original owner, and in the absence of the lot-owner took possession of the store, and afterwards sold the groceries on the mortgage. And in affirming the action of the trial court in directing a verdict in favor of the lot-owner, who sued the creditor in •¿rover for the value of the groceries, it is held:
    a — That the execution and delivery of the land contract was as complete a payment for the groceries as a money consideration actually paid would have been.
    b — That, under the undisputed facts of the case, the title had passed when the mortgage was given, as the key to the store had been delivered, and the lot-owner placed in the absolute possession and control of the goods, with the understanding on the part of both parties that the title had passed, and the only remaining act to complete the transaction was to determine by an inventory how much should be indorsed as paid upon the land contract as the value of the goods sold.
    Error to Kent. (Judkins, J., presiding.) Submitted on briefs April 12, 1894. Decided May 18, 1894.
    Trover. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      G. O. Smedley (Benn M. Corwin, of counsel), for appellant.

      Smiley, Smith & Stevens, for plaintiff.
   Grant, J.

Plaintiff was the owner of .several lots in Holland, Mich. A Mrs. Merryman was the owner of a stock of groceries in Grand Eapids. Her husband carried on the business as her agent. An agreement was entered into for the exchange of the grocery stock and business for certain-of these lots. The price of the lots was fixed at $750. Mr. Merryman considered the groceries worth between $700 and $800. Plaintiff offered $600, without taking an,inventory. Merryman preferred the inventory. Plaintiff and Merryman went to Holland to examine the lots. Upon their return the papers were executed, consisting of a land contract and a bill of sale. The land contract specified that the amount of the invoice of the stock of groceries, less the amount of debts thereon, to the amount of $175, should be applied upon the contract, the balance to be paid $50 yearly, with interest. The bill of sale was delivered to plaintiff, who placed it on file in the office of the city clerk on the following day. The contract was left with one Lozier, who drew the papers, at the request of both parties. The papers were drawn Friday evening at Merry-man’s house. Merryman had obtained the key from his clerk, who usually kept it over night, for the evident purpose of delivering it to plaintiff rrpon the execution of the papers. After the execution of the papers, Merryman delivered the key to plaintiff, who, with Merryman, Lozier, and others, went to the store, opened it, and the entire party was treated over the consummation of the trade. The inventory was to be taken the following day. Plaintiff agreed, upon the completion of the inventory, to deed to Merryman as many lots as there were even hundred dollars in the invoice, after deducting $175. It was agreed that the store should be kept open for business, and that the amount of the sales of goods made without being inventoried should be added to the amount of the invoice. The following morning plaintiff opened the store, swept it, and arranged things in readiness for trade, purchased some berries of a farmer, and hired Mr. Merryman’s former clerk. Mr. Merryman was present in the store in the forenoon, as was his right under the arrangement, and assisted to wait on customers when occasion required.

Mr. Merryman was indebted to the defendant in the sum of $172, which was one of the accounts plaintiff agreed to pay. A representative of the defendant went to the store Saturday forenoon, and conversed with plaintiff about his account. Plaintiff said he would go to the defendant’s store at noon and see about the matter. He did so. Plaintiff informed defendant that he would pay the account, but would, need a little time. Defendant demanded a certain amount in cash and a short time for the balance. Plaintiff left the store without coming to any arrangement with the defendant. On his return to his own store he there found an agent of the defendant and its attorney. A further conversation occurred in regard to the account, but no agreement was reached. Merryman and the defendant’s agent and attorney then left the store together. They went to the house of Mrs. Merryman, who executed a chattel mortgage to the defendant upon the, stock of goods, which was immediately filed with the city clerk. Later in the afternoon plaintiff temporarily left the store. On his return he found the door barred, and the defendant in possession under the chattel mortgage. The stock was sold under the chattel mortgage, and thereupon "plaintiff instituted this action of trover to recover its value. The court directed a verdict for the plaintiff for the value of the goods, less the debt which was due from Mrs. Merryman to the defendant.

The defendant insists (1) that plaintiff was not a Iona ficle purchaser, and (2) that the title to the stock of goods had not passed to plaintiff.

1. There is no evidence that either Mrs. Merryman or the plaintiff intended to defraud her creditors. The sale was perfectly legitimate, and was fully completed. The execution and delivery of the land contract was as complete a payment for the goods as a money consideration actually paid would have been.

2. Under the undisputed facts in the case, the title had passed. The key had been delivered, and the plaintiff placed in the absolute possession and control, with the understanding on the part of both that the title had passed. The only remaining act to complete the transaction was to determine by an inventory how much should be indorsed as paid upon the land contract as the value of the goods sold. Lingham v. Eggleston, 27 Mich. 324; Ducey Lumber Co. v. Lane, 58 Id. 521; Brewer v. Salt Association, 47 Id. 526; Wagar v. Railroad Co., 79 Id. 648; Lobdell v. Horton, 71 Id. 681.

Judgment affirmed.

The other Justices concurred.