text:
    DE MARY v. BURTENSHAW’S ESTATE.

    1. Witnesses — Matters Within Knowledge of Decedent — Agent, of Partnership.
    3 Comp. Laws, § 10212, disqualifying an agent of a corporation, in a suit between it and the representatives of a deceased person, from testifying to matters equally within the knowledge of the deceased, does not extend to an agent of a partnership.

    2. Statute of Frauds — Brokers—Order to Buy.
    An order to a broker to buy wheat, reduced to writing and signed in the name of the customer, and in his presence, by the broker’s agent, and acted upon by the broker, is not within the statute of frauds.
    3. Brokers — Margins—Advances.
    Where a contract with a broker for the purchase of wheat for future' delivery gave him the right to close out the transaction in case margins were not kept good, and the customer died while behind in his margins, and his personal representatives refused to take any action, the broker was not bound to make advances to carry the wheat, but was justified in closing out the deal.
    4. Same — Gambling Transactions — Question for Jury.
    Whether a contract with a broker for the purchase of wheat on margins for future delivery was a bona fide transaction, or was a mere gambling contract, prohibited by 3 Comp. Laws, § 11373, was properly submitted to the jury, though it appeared that the buyer had no personal use for the wheat, and that the broker had never delivered any wheat under such contracts during the many years he had been in business.
    Error to Wayne; Lillibridge, J.
    Submitted October 11, 1901.
    (Docket No. 46.)
    Decided September 17, 1902.
    Andrew J. De Mary, John R. Heintz, and Richard D. Lyman, copartners as De Mary, Heintz & Lyman, presented a claim against the estate of James Burtenshaw, deceased, for a balance due on account of the purchase and sale of certain wheat. The claim was disallowed by the commissioners, and claimants appealed to the circuit court. From a judgment for claimants, defendant brings error.
    Affirmed.

      Russel & Campbell, for appellant.

      Philip T. Van Zile, for appellees.

       Rehearing denied January 5, 1903.

       This statute was amended by Act No. 30, Pub. Acts 1903, so as to exclude generally the testimony of those acting as agents in making or continuing contracts with decedents.

   Moore, J.

The claimants presented a claim against the estate of Mr. Burtenshaw of $1,475. This was disallowed by the commissioners on claims. An appeal was taken to the circuit court, where the case was tried by a jury, who rendered a verdict for the full amount claimed. The case is brought here by writ of error.

The claimants are partners, residing in Buffalo. They buy and sell stocks, bonds, grains, provisions, and other things. Their main office is in Buffalo. For some years they have had a branch office in Detroit, in charge of Mr. MacMahon, who was employed by them upon a weekly salary, and who had no other pecuniary interest in the business. Mr. Burtenshaw, during the fall of 1895, began to place with these brokers orders to buy and sell grain and other commodities, which orders were from time to time executed, and commissions were charged, and paid by him. On June 1, 1898, Mr. Burtenshaw requested Mr. MacMahon to buy 10,000 bushels of September wheat. Mr. MacMahon at once filled out and signed in the presence of Mr. Burtenshaw the following:

“On all marginal business the right is reserved to close transactions when margins are running out, without giving further notice, and to settle contracts in accordance with the rules and customs of the Chicago Board of Trade and New York Stock Exchange.”
“All transactions made by us for your account contemplate the actual receipt and delivery of the property and payment therefor.
“Detroit, June 1, 1898.
“De Mary, Heintz & Lyman: Buy for my account and risk, 10 Sept, wheat, 78f @ 79.
[ Signed] ‘ ‘ Burtenshaw.
“All orders expire each day, unless made open when given.”

On June 4th a like order for 25,000 bushels was given, and on June 6th one for 10,000 bushels. It was the claim of claimants that these orders were at once filled, and Mr. Burtenshaw notified. On the morning of June 7th, Mr. Burtenshaw suddenly died. He had a small balance to his credit on the books of the claimants, but had not made any advancements on these purchases. On June 7th, Mr. C. and Mr. S., representing the family of Mr. Burtenshaw, came to the office in Detroit, and notified Mr. MacMahon of the death of Mr. Burtenshaw. They were told of the transactions between Mr. Burtenshaw and claimants, and declined to accept any responsibility in connection therewith. As no margin had been put up by Mr. Burtenshaw, the claimants sold the September wheat. The transaction resulted in a loss. They were charged by their broker at Chicago with the amount of the loss, and it is to recover this amount and the commissions that this claim is presented.

Mr. MacMahon was allowed to testify fully as to the transaction. It is said, if a proper construction had been given to section 10212, 3 Comp. Laws, this testimony would have been excluded, as being equally within the knowledge of Mr. Burtenshaw. Mr. MacMahon had no pecuniary interest in tire result of this litigation. It is conceded that this testimony does not come directly within the wording of the statute, but it is said there is the same reason for holding the agent of a partnership disqualified from testifying that there is in holding the agent of a corporation. This is an argument which should be directed to the legislative, rather than to the judicial, department of government. It was for the legislature to say who might and who might not testify. The inhibition has been put upon agents of corporations, and has not been put upon agents of partnerships. We cannot, by construction, put into the statute what the legislature have not seen fit to put into it. See Howard v. Patrick, 43 Mich. 121 (5 N. W. 84), and the cases there cited; Webster v. Sibley, 72 Mich. 630 (40 N. W. 772).

It is claimed that, as the order exceeded in value the sum of $50, the contract should have been evidenced by a writing signed by the deceased; citing 3 Comp. Laws, § 9516. If the transaction was as testified to by Mr. MacMahon, the transaction was not prohibited by the statute.

It is also urged that claimants had no right to sell the wheat as they did, but should have carried it until September, and then, if there was a loss, should have presented a claim against the estate. The record shows that Mr. Burtenshaw was entirely familiar with the method of doing business. The contract provided, that the transaction might be closed if the margins were not kept good. The record shows that the margins were not kept good, and that wheat had fallen in price. This was the situation when Mr. Burtenshaw died, and his representatives declined to take any action in the matter. Under such circumstances the claimants were not bound to make all necessary advances to carry the wheat until September, ■but might close the deal as provided in the order.

Error is assigned upon the exclusion of testimony, but, as all the facts were ultimately allowed to go before the jury, we do not deem it necessary to discuss that assignment.

Upon the part of the defense it is insisted that this was nothing more nor less than an option to buy or sell at a future time, and is a gambling contract, pure and simple, and is prohibited by section 11373, 3 Comp. Laws. Upon the part of the claimants it is insisted that the contract-was for the purchase of grain to be delivered in the future, and not within the prohibition of the statute. The defendant presented the following requests to charge:

“1. If you find that it was not the intention of the parties in this suit that the contract should be carried through, and that there should be an actual delivery of the wheat sought to be recovered on, then the contract was illegal and void, and you should find in favor of the defendant.
“2. In arriving at a conclusion in regard to the intent of the parties, other similar transactions between the parties, which had been closed out prior to the making of this contract, should be taken into consideration by you.
“3. The fact that no wheat has ever been delivered under any contract ever made in the Detroit office of De Mary, Heintz & Lyman should be considered by you in determining the intention of the parties.
“4. Dealing in ‘puts’ or ‘privileges/ so called, is illegal; so that, if you believe that the purchases of wheat were ordered to be made in consequence of ‘puts’ which had been sold by Burtenshaw, then the entire contract between the parties is void, on account of its being so tainted with illegality.”

The first three of these requests were given. The last-one was refused, except as covered in the general charge, which contained, among other statements, the following:

“The second defense is that the deals between claimants and Burtenshaw were not transactions in which delivery of wheat was contemplated by either party, but that they were purely speculative, and did not contemplate the delivery of any wheat. It is necessary for you to understand clearly the difference between the purchase of commodities for delivery, and pretended purchase of commodities when no delivery is intended by either party. The law is clear that dealing in futures is legal and proper, and, if we could know the course of dealings of the wholesale houses of this city, we would probably, find the fact to be that wholesale dealers give their orders six months in advance of the time they expect the goods. In other words, they purchase their goods months in advance of the time that they are to be delivered. So there is nothing illegal in the purchase of goods which are not in actual existence, for future delivery. Neither is there anything unlawful in the purchase of grain, or any other commodity, upon what is called a ‘margin.’ The margin is simply part of the purchase price paid when the order is given, and the balance to be paid when the goods are delivered, or at some other time. What the law does object to is fictitious sales, — when there is no contemplation by either side that the commodities are to be delivered. Now, I hope I have made that clear to you, gentlemen, and if you will understand the agreement for the purchase of commodities to be delivered in the future is perfectly lawful, but that, on the other side, an agreement for a fictitious or pretended delivery of commodities, where the parties intend to settle according to the rise or fall of the commodity before its delivery, and where there is no contemplation or intention on the part of either side that the actual commodity shall be delivered, that is what the law objects to and prohibits. In this connection I will call your attention to the statute which has been read in evidence before you. It is section 9354/, 3 How. Stat. [Beads statute.] You will see, gentlemen, that statute aims at what is considered the sale of pretended commodities without any intention to deliver them, or the purchase of pretended commodities without the intention to receive them. That is the transaction which the law forbids.
“Now, the question is, What did either of the parties contemplate to this transaction ? It is not enough that one of them did not contemplate the delivery of the wheat; it is not enough that you may think that Burtenshaw did not intend this grain to be delivered; it is not enough that you assume that he was speculating. You must also believe that the claimants also did not contemplate the delivery of the wheat, and upon that branch of the case the burden of proof is upon the defendant. That is to say, if you believe that these orders were given to buy the wheat, as claimant has testified, -then it was a transaction which, upon its face, was regular, and it was legal, — a legal, prima facie transaction; and the law places the burden upon any man who attempts to claim differently, the burden to prove it. If the defendant claims that the contract was not what it appears to be, the law says upon him shall be the burden to prove or point out that it was unlawful; so that upon that branch of the case the burden of proof is upon the defendant. I will afterwards define to you what is the burden of proof.
“Now, gentlemen, another defense in this case is that this wheat, even if bought, was purchased to protect or offset certain ‘ puts ’ he had sold prior to the dates of these purchases; that they were bought to protect himself against these puts. Now, gentlemen, we are getting into technical language here. What is called a ‘ put ’ has been explained to you fully here. It seems to be this: That a person may sell a right to some one else for a consideration, — the right to some one else to bring to him the following day a certain quantity of grain at a certain price, and he is obliged to take it, or settle for the rise in the wheat of the difference between that value paid and wheat on that day. Now, it is conceded here that this dealing in ‘puts’ and ‘privileges,’as they have been called, is' what would be called wagering or unlawful transactions. It is claimed here on the part of the defendant that Mr. Burtenshaw had, prior to the 5th and 6th, sold certain ‘puts,’ which were due to be fulfilled by him on these days. It is claimed, also, that these ‘puts ’ or ‘privileges ’ were tendered to him on these days, and he was obliged to take the wheat on the terms which he had made to take it on these days, and it is claimed these ‘ puts ’ had been placed upon Burtenshaw by the claimants in this case, De Mary, Heintz & Lyman;- whether for themselves or for others, I don’t know. Now, the claim is that these orders which are in controversy in this case were given and the wheat was purchased — if it was purchased — to protect Burtenshaw against these ‘puts;’ and the contention is that, since, the ‘puts’ were confessedly unlawful, these purchases of wheat under these orders, which were made to protect Burtenshaw 'against these ‘puts,’ were tainted with the same illegality, and that the plaintiffs cannot recover. Upon that point, gentlemen of the jury, I think I have stated to you the. defendant’s claim. The claimants’ claim is that they have no knowledge what was in Burtenshaw’s mind; that he came to them, and gave them orders to purchase certain quantities of wheat, and they did not know what his intentions were as to the purchase; that that was his concern; and that De Mary, Heintz & Lyman knew nothing about what he was going to do with his purchase of wheat, but that they purchased the wheat in good faith upon his order, not knowing anything about his purposes in buying or ordering the wheat, and if he did, as a matter of fact, give these orders for the purpose of protecting himself against ‘puts’ which he had sold, they had no knowledge of it; that they bought the wheat in the regular course of their business. Now, what I have to say to you upon that is, if these orders were given by Burtenshaw to protect himself against ‘ puts ’ or ‘ privileges,’it would be an unlawful transaction; otherwise it would not. Now, I think that is all I care to say to you about that.”

It will be seen that the question of fact was fully submitted to the jury. If that question were for us to decide,' we might be greatly influenced by the fact that Mr. Burtenshaw had no use personally for wheat, that he was not grinding it, and that actually none' was delivered to him, and that, during the many years claimants were doing business in. Detroit as brokers, they did not actually deliver to the persons who had ordered through them any wheat, and have reached the conclusion that the transaction was a gambling one, and prohibited by the statute; but we do not pass upon the facts. This is the province of the jury, under proper instructions from the court. The circuit judge stated the rule of law substantially as it has been announced in Gregory v. Wendell, 39 Mich. 337 (33 Am. Rep. 390); Id., 40 Mich. 432; Carland v. Telegraph Co., 118 Mich. 369 (76 N. W. 762, 43 L. R. A. 280, 74 Am. St. Rep. 394); Donovan v. Daiber, 124 Mich. 49 (82 N. W. 848); Sampson v. Cotton Mills, 82 Fed. 833, 836; Bibb v. Allen, 149 U. S. 481, 495 (13 Sup. Ct. 950); Roundtree v. Smith, 108 U. S. 269 (2 Sup. Ct. 630).

The other assignments of error have been considered, but we do not deem it necessary to discuss them. The case was very ably and carefully tried. The jury accepted the version of claimants, and we do not feel at liberty to disturb their verdict.

Judgment is affirmed.

Hooker, C. J., and Montgomery, J., concurred. Grant, J., did not sit.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    ESPER v. MILLER.
    1. Contract Under Seal — Personal Liability op Stranger.
    A party not named in a sealed instrument cannot be made personally liable upon it in the absence of some act of subsequent ratification.
    2. Same — Sale op Land — Corporations—Ratification.
    Several persons contributed money with the understanding that a corporation should be organized to buy real estate, and that stock should be issued to them for their contributions. M., a real-estate agent, was informed of this by one of the contributors, and told that, if he could acquire title to E.’ s land, the corporation would take it. M. entered into a contract of purchase with E. in his own name, making the first payment with money contributed for the corporation, and receiving a commission from B., who knew he was acting for others. Afterwards a corporation was formed, which took an assignment of the contract, made payments thereon, and issued stock to the several contributors. In a suit to foreclose the contract, held:

    (1) That the assignment of the contract and the acceptance of the stock was not such a ratification by the contributors of M.’s act in buying the land as to render them individually liable for the purchase price.
    (2) But that the corporation, having been organized for the purpose of acquiring the land, and having taken over the contract and exercised acts of ownership, was so liable.
    3. Equity Pleading — Prayer for Relief — Personal Degree.
    A bill in equity praying that the court ascertain the true vendees under a land contract, and that they be decreed to be liable for the purchase price, is sufficient to authorize a «personal decree against a defendant, although he is not expressly charged to have been a vendee.
    Appeal from Wayne; Hosmer, J.
    Submitted November 12, 1901.
    (Docket No. 22.)
    Decided September 17, 1902.
    Bill by Mathias Esper and Karolina Esper against Charles T. Miller, Edwin S. Sherrill, Elisha H. Elinn, James H. Bell, Ernest T. Tappey, Jacob H. Hahn, Charles A. Rathbone, John W. Simons, Charles W. Hitchcock, Agnes Andrus, Kate H. Jacobs, Lewis A. McCreary, and the Fairview Land Company, for the specific performance of a land contract. From a decree dismissing the bill •except as against defendants Miller and the Fairview Land Company, complainants and said company appeal.
    Affirmed.

      Alfred kicking, for complainants.

      Chamberlain &' Quise, for defendants Fairview Land Co., Fl'inn, Hahn, and Bell.

      Albert P. Jacobs, for defendants Miller, Sherrill, Jacobs, and Hitchcock.

      Keena & Lightner, for defendant Tappey.

      Russel & Campbell, for defendant Rathbone.

      Steivart & Bliss, for defendant Simons.
   Moore, J.

This is a bill filed for the purpose of foreclosing a land contract made between the complainants and Charles T. Miller. The defendant the Fairview Land Company and the complainants have appealed. The ether defendants are content with the decree as it stands.

The testimony, when considered as a whole, fairly shows that, prior to the making of the contract, a number of .gentlemen were of the opinion that certain real estate was likely to appreciate in value, and agreed among themselves to form a corporation for the purpose of acquiring real estate and selling it again. A number of them contributed sums amounting in the aggregate to $8,500, with the understanding that a corporation was to be formed, -and stock issued to them for the money subscribed by them. Dr. Sherrill was most active in the enterprise. He saw Mr. Miller, who was a real-estate agent, and informed him of the proposed formation of a company, and that, if he could acquire the title to certain real estate, the proposed association would take it from him. Mr. Miller entered into negotiations for the purchase of lands owned by the complainants. On the 15th of February, 1893, a contract under seal was made between Mr. and Mrs. Esper, parties of the first part, and Charles T. Miller, party of the second part, wherein the Espers agreed, for a consideration of upwards of $32,000, to sell to the party of the second part certain real estate. This contract was in the usual form of land contracts. At about the time it was executed, the Espers were informed by Mr. Miller that the parties for whom he was acting were responsible, but they were not informed who they were, and Mr. Miller himself did not know the names of the persons, except Mr. Sherrill and Mr. Rathbone, who were to go into the proposed corporation. At the time the land contract was executed, Mr. Miller paid upon the contract $4,000, which he received from Mr. Sherrill and Mr. Rathbone, less his commission of $649.45, which was paid to him by the Espers, they indorsing upon the land contract a payment of $4,000.

Shortly after the land contract was signed, the Fairview Land Company was duly and properly organized. On the 29th of March, 1893, Mr. Miller assigned the land contract to the Fairview Land Company. A copy of this assignment was afterwards indorsed on the copy of the land contract in the possession of the Espers. Several indorsements were made in 1893. Five indorsements were made in 1894 upon the contract, nine in 1895, and six in 1896, signed by Mathias Esper. These payments were all made by the Fairview Land Company. The other payments called for by the land contract were not made, and this bill was filed. The circuit judge made - a decree dismissing the bill as to all of the defendants except Mr. Miller and the Fairview Land Company, fixing the amount due upon the contract, and providing for a sale of the land, a report upon the amount of the deficiency, if any, and for a personal decree for the deficiency against the Fairview Land Company.

The first question demanding uconsideration is whether a personal decree should have been rendered against the individuals who subscribed for stock and became members of the corporation which was afterwards formed. In Ferris v. Snow, 124 Mich. 559 (83 N. W. 374), it was held that a party not named in a sealed instrument cannot be made liable upon it in the absence of some .act of subsequent ratification. See the authorities cited in the opinion. It is claimed on the part of the complainants that when the contract was assigned to the corporation, and stock was issued to and accepted by the individuals, this was a ratification of the acts of Mr. Miller in buying the land. We cannot agree with that conclusion. Who of the individuals expected personally to pay $32,000 for the land, or as individuals expected to get any title to the land ? Mr. Miller was not buying the land for himself. He did not understand he was buying it for Dr. Sherrill, or for any other individual, but he understood he was buying it for an association which was afterwards to be formed, and which was in fact formed, and to whom he assigned the contract. No individual subscribed any money to buy an individual interest in land, the title to which was to be held by them as individuals, but the subscriptions were made for stock in a corporation afterwards to be formed, which was to issue stock for the money subscribed. No individual ever did get any interest in the land as an individual. The fact that the money which was subscribed for stock was used in making the $4,000 payment did not give the persons who paid in that, money any interest in the land. 3 Comp. Laws, § 8835. We think the circuit judge was right in holding that a personal decree could not be rendered against the individuals.

Was he right in holding that a personal decree could be rendered against the Fairview Land Company ? It is said the pleadings are not such as to warrant such a decree. The bill of complaint set out the understanding of the complainants. In the prayer, among other language used, was the following:

“And that this court will ascertain from the proofs and determine who were the real principals as vendees in said land contract, * * * and that the true principals in said land contract, whoever they may be found to be, shall be decreed by this court to be liable to your orators on said land contract personally for the said purchase moneys remaining due and unpaid on said land contract, and that such land contract be enforced in all respects against the true principal vendees, and against all persons liable thereon, and liable to your orators on account thereof, and for such purchase moneys, and that the persons personally responsible be decreed to make payment to your orators of the amounts remaining unpaid upon said land contract to your orators, * * * and that your orators may have such other relief or further relief as the premises will warrant.”

We think this prayer sufficiently broad. Proctor v. Plumer, 112 Mich. 393 (70 N. W. 1028).

It is urged upon the part of the Fairview Land Company that, as it was not in existence when the contract was made, it cannot be bound by the acts of Mr. Miller. It must be conceded the authorities are not in harmony upon this proposition. It has already appeared that the complainants regarded Mr. Miller as acting for them as well as for his undisclosed principal. They paid to him upwards of $600 in the way of commissions for making the sale. He and they knew he was not acting for himself. He knew he was not acting for individuals, but for a corporation, which was to be called into being later; and; when it had a corporate existence in fact, he assigned the land contract to it, making the transaction, so far as he was concerned, as between himself and the corporation, a completed one. His knowledge was imputable to the complainants. We think there can be no reasonable doubt that the corporation, after it had been formed, recognized that Mr. Miller had been acting for it, and took over such title as he had in the contract, for which money had been paid in by prospective stockholders, to whom stock, for the money paid in, was issued. Mr. Miller paid no money of his own. He never expected to pay any, and it was not expected he would pay any. There was abundant evidence that the corporation ¿undertook to ratify his acts. Hammond v. Hannin, 21 Mich. 374 (4 Am. Rep. 490); Hanchett v. McQueen, 32 Mich. 21. It is certainly not equitable that a company called into being for a definite purpose, for whom property has been acquired by a written contract, can take over that property, by receiving an assignment of the contract and exercising acts of ownership over the property, without performing that part of the contract which is unperformed; and such we do not understand to be the law. We think the decree holding the Eairview Land Company liable under the facts disclosed by the record is sustained by Whitney v. Wyman, 101 U. S. 392; Bell’s Gap R. Co. v. Christy, 79 Pa. St. 54 (21 Am. Rep. 39); Grape Sugar Manfg. Co. v. Small, 40 Md. 395; Van Schaick v. Railroad Co., 38 N. Y. 346; Battelle v. Pavement Co., 37 Minn. 89 (33 N. W. 327); Mesinger v. Saddle Co., 44 App. Div. 26, (60 N. Y. Supp. 431); and St. Johns Manfg. Co. v. Munger, 106 Mich. 90 (64 N. W. 3, 29 L. R. A. 63, 58 Am. St. Rep. 468).

Decree is affirmed, with costs.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


text:
    MOROSS v. MOROSS.
    Gift of Lands — Evidence.
    Evidence examined, and held not to establish a parol gift of lands to defendants from their parents, made with the intention. of passing title, so as to create any special rights therein, though the parents frequently spoke of having “given” the property to defendants, and defendants had long been in possession of the same.
    Appeal from Wayne; Brooke, J.
    Submitted April 22, 1902.
    (Docket No. 110.)
    Decided September 17, 1902.

      Bill by Alfred Charles Moross and Emily Catherine Moross, by guardian, against Victor J. Moross, Emma Ray, Celina Parent, Louisa V. Moross, and Augustus C. Stellwagen, administrator, for a partition of certain real estate. From a decree for complainants, defendants appeal.
    Affirmed.

      Clark, Durfee & Allor, for complainants.

      William B. Jackson (Cutcheon, Stellwagen & Mac-Kay, of counsel), for defendants.
   Moore, J.

This is an appeal from a decree in chancery. The questions involved are so well stated in a written opinion filed by the circuit judge that we insert it here:

“ The complainants in this case are the infant children of a son of Christopher Moross, deceased, and the bill is filed by them to secure their distributive share of the estate of their paternal grandfather and grandmother. The answer and cross-bill of the defendant Victor J. Moross, who is an uncle of the complainants, sets up that during the lifetime of his father, Christopher Moross, a certain piece of property, known as 152 Adams avenue, was given to him by his father as a wedding present; and the answer and cross-bill of Emma Ray and Celina Parent, two daughters of the deceased, Christopher Moross, sets up that some 26 years ago their mother, Emily Moross, gave to them a piece of property now known as numbers. 130 and 132 Adams avenue east, No. 130 going to Mrs. Ray, and No. 132 to Mrs. Parent; that at that time the-deceased, Christopher Moross, had moved on said property a double house; that he joined with his wife in the gift of said property to the defendants Mrs. Ray and Mrs. Parent. It appears further that another son of Christopher Moross, named Scott Moross, had been given a certain piece of property during the lifetime of his father, but that, he having died before Christopher Moross, upon his death Christopher Moross reasserted his title to said property.
“It is claimed by the three defendants, Emma Ray, Celina Parent, and Victor J. Moross, that the parol gift by their parents of the properties described, coupled with the possession of the same by them covering a period of from 20 to 27 years, and the fact that they have made valuable improvements upon the property, constitutes a set of circumstances which are sufficiently powerful to overcome the statutory provision that no estate or interest in lands shall be created except in such manner as the statute provides. They urge that it would be inequitable to them, after Christopher Moross and his wife had given them the properties in question, and had permitted them to live in them for such a long period of years, to now compel them to surrender the same to the estate of the decedent, and accept only their proportionate share of said estate. The equities of the case are met by these defendants by showing that Christopher Moross in his lifetime had advanced some money to Alfred Moross, the father of the complainants, and that at the time of the death of said Alfred the funeral expenses, amounting to some hundreds •of dollars, were paid by Christopher Moross.
“On the part of complainants it is contended that the improvements made upon said properties by the defendants Victor J., Emma, and Celina are of no value to the premises in question; that they constitute simply repairs in wood to old wooden houses, and that the houses in question at this time are practically valueless, the value of the property in question being simply its land value; that, whatever the improvements were worth at the time they were put on by the defendants Ray and Parent, they have been fully enjoyed by said defendants, and that the estate is in no wise benefited by the same; the condition of the premises now being only what it would have been had the land lain vacant. It is further contended that it is enough that these defendants have had the use of the properties in ■question, rent free, during a period equal to an ordinary lifetime, and for the major portion of the time with the taxes thereon paid by Christopher Moross, and that, in addition to that, to permit such free occupancy to ripen into an absolute title in said defendants would be to work an injustice to these infants.
‘ ‘ The evidence as to the gift from Emily Moross to Mrs. Ray and Mrs. Parent is rather meager, and is wholly, given by the parties in interest. Under my view of this testimony, I think it entirely inadmissible. This certainly is a claim by these parties against the estate of the deceased, and the gift, if it was made as testified to by the defendants, must certainly have been equally within the knowledge of the deceased, and therefore I do not think the testimony should be considered.
“Touching the gift from Christopher Moross to Victor J., his son, while it is certainly true that Christopher told outsiders that he had given this property to Victor, and even swore to it upon the stand in a case in which he sought to restrain a trespass upon the property, yet in the same case he declared that he was the holder of the legal title thereto, and averred under oath that he was the owner thereof. Christopher Moross was a man of very considerable interests, and, so far as the testimony discloses, a man of more than ordinary business capacity. Hé died possessed of a very large number of individual parcels of real estate, and was far more familiar with the necessary legal formalities attendant upon the transfer of a title or interest in real estate than the average layman. He lived to a very ripe old age, and remained in the free possession of his faculties almost up to the day of his death. Yet during all this time he never took the pains to execute a conveyance to Victor of the property which he had given. It must be presumed that he refrained from doing this with a purpose, and that it was his intention to retain the control of the property in question, and the right to dispose of it himself during his lifetime, if he so desired. The fact that when another son died, who had occupied property belonging to his father, he immediately resumed possession thereof, is strong corroborative proof that it was his intention to so retain control of the property in question as would enable him to resume possession thereof if he so desired during his lifetime.
“As to whether the late Emily Moross was a woman acquainted with business forms and the necessary steps to be taken in order to dispose of real estate or not, the testimony does not disclose. But, whether or not this be so, these other two defendants, Emma Ray and Celina Parent, are, and were during all the period - of occupancy, up to the time of their mother’s death, ladies of above the ordinary intelligence, and may be presumed to have known that it was absolutely necessary, in order to perfect their title, to secure from their mother a deed of the premises in question. This they did not do. In fact, the mother seems to have been entirely overshadowed by her husband, Christopher Moross, and, whenever the home of Mrs. Ray or of Mrs. Parent is spoken of, it is always Christopher who has given them their homes, instead of the mother.
“Upon consideration of the whole matter, I am of the opinion that no such gift was made by either Emily Moross to Mrs. Ray and Mrs. Parent, or by Christopher Moross to Victor J. Moross, as should be sustained by a court of equity. These three defendants have had the free use of the properties in question, with the taxes paid during the greater portion of the time by Christopher Moross, and it seems to me no more than just that now they should be considered a part of the estate, and partitioned with the balance thereof. If they have become attached to the property by reason of their long residence therein, there is no obstacle to their securing possession thereof in the distribution. A decree will be entered for the partition of the entire estate of Christopher Moross and Emily Moross, including the three parcels in question.”

The complainants insist that section 9509, 3 Comp. Laws, which reads, “No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by some person thereunto by him lawfully authorized by writing,” is applicable to the case. Counsel for appellants insist they have brought themselves within the provisions of section 9513, 3 Comp. Laws, which reads as follows: “ Nothing in this chapter contained shall be construed to abridge the powers of the court of chancery to compel the specific performance of agreements in cases of part performance of such agreements,” and that they have performed their part of their'agreement, and are entitled to have the land decreed to be theirs.

The law questions do not trouble us so much as does the question of whether there ever was a promise to deed these lands, and, acting under such promise, did defendants go into possession and make improvements? The original answer in the case averred the property was given to defendants as an advancement, which should be charged against defendants as of the date when they entered into occupancy. After the trial proceeded for a time, by permission of the court the answer was amended so as to claim an absolute gift of the property to the defendants. There is plenty of testimony indicating that Mr. and Mrs. Moross talked about having given a home to the daughters, and by Mr. Moross that he had provided a home for his sons Victor and Scott; but no witness says that either the father or mother said they had given a deed of any real estate to their children, or had agreed to do so. Mrs. Moross was nearly 78 years old when she died. She was an invalid for years, though she was fully possessed of her mental faculties. Mr. Moross was an old man when he died. The real estate was assessed to him, and for a good proportion of the time, at least, if not all of the time, he paid the taxes upon it. This was known not only to him, but to his children. He was the owner of a good deal of property. He at one time had a talk with one of the lawyers for the appellants, who gives the following version of what occurred:

“The conversation was this: I says to Mr. Moross, ‘You are getting to be an old man, and you ought to make a will.’ Says he, ‘I have got the papers all fixed.’ ‘Well,’ I says, ‘that isn’t enough, in my judgment. You ought to make a will, or else, if you have got any papers, they ought to be put in some other person’s hands, as an escrow, to be delivered to the parties entitled when you die.’ ‘ Well,’ he says, ‘ it is all right, anyway.’ That was all I could get out of him.”

As late as August, 1897, Christopher Moross filed a bill of complaint in a chancery suit, which was sworn to by him, in which he set out that he was the owner of the lot now claimed by Victor. It is true that upon the trial it is claimed he swore he had given the property to Victor, but the proceedings show the attention of both himself and Victor was challenged to the fact that the legal title was in Christopher. Shortly before his death, and while in the possession of all his faculties, he insisted upon having a quantity of money, which he had in the house, counted in the presence of his children, and put in a safe place. When this was done he expressed himself as satisfied. He knew and the appellants knew that no deeds of the property now claimed by the appellants had been made and delivered to them. If the parents intended to devest themselves of the title to this property, and put it in the defendants, it is very strange that, with all the knowledge that all of the parties had of the situation, no steps were taken to accomplish that purpose. The record discloses that Mr. Moross was kind to his children; that he supplied them with vegetables from the cellar; that for a series of years he paid for their annual supply of coal, and whenever they needed anything for their comfort he furnished it. The relations of the father and mother to the children were of the pleasantest character. There is nothing to indicate that they at one time made a gift which they afterwards regretted, and for that reason did not make the gift effective by deeding the property. We are not satisfied from the evidence it was ever expected the title would pass.

The decree is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


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      In re ANGELL.
    1. Receivers — Removal—Discretion of Court.
    The discretionary action of a circuit judge in removing a receiver will not be reversed, where it clearly appears that he did not accomplish what he ought to and would have accomplished had he exercised the diligence of a prudent man in winding up a business of his own.
    2. Same — Compensation—Ex Parte Order — Modification.
    An ex parte order fixing the compensation of a receiver may be modified, and the compensation reduced, on the final account, ing.

      3. Same — Benefit Associations — Assessments — Lack of Diligence-Liability.
    A receiver of a mutual benefit association will be charged with assessments lost through his want of diligence in learning of the death of the debtors, and presenting the claims against their estates.
    4. Receivers — Disbursements—Approval by Court.
    A receiver will be protected in the payment of attorney’s fees, made after obtaining the approval of the bill by the court.
    5. Benefit Associations — Compensation of Receiver.
    The question whether a receiver of a mutual benefit association was appointed under the statute relating to the voluntary dissolution of corporations (3 Comp. Laws, chap. 300), and his compensation therefore governed by section 10870, or was ' appointed under 2 Comp. Laws, § 7518 (part of the organic act of the association), and his compensation within the general jurisdiction of the court, — was raised, but not decided.
    6. Corporations — Receivers—Extraordinary Services.
    Under 3 Comp. Laws, § 10870, providing that certain receivers shall be entitled to “such commissions as the court shall allow, not exceeding the sum allowed by law to executors and administrators,” a receiver is not conclusively limited in his compensation to the commissions fixed by section 9438, but is within the further provision of said section authorizing such additional allowances for extraordinary services, not required of an executor or administrator in the common course of his duty, as the court may deem just and reasonable.
    7. Same — Benefit Associations.
    An allowance of $125 per month, for a term of four years, to a receiver of a mutual benefit association, whose assets consisted principally of the right to levy and collect assessments, to enforce which he was obliged to prosecute extended litigation, was held reasonable and proper. ,
    Appeal from Kent; Perkins, J.
    Submitted November 15, 1901.
    (Docket No. 125.)
    Decided September 17, 1902.
    Petition by Crawford Angelí and others, trustees of the Masonic Life Association, for the removal of Charles W. Calkins as receiver, and for an accounting. From the order made, both parties appeal.
    Modified and affirmed.

      Rood & Hindman, for petitioners.

      Crane, Norris & Drew, for respondent.
   Moore, J.

December 12, 1896, Charles W. Calkins was appointed receiver of the Masonic Life Association by the circuit court of Kent county, in chancery, and entered upon the discharge of his duties. In September, 1899, he presented his report to the court appointing him, purporting to contain a statement of his receipts and disbursements up to that time. He asked that he be allowed a salary of $125 a month as receiver. One of the circuit judges indorsed upon said report as follows:

“The foregoing report and statement examined and approved, and the receiver’s account as therein stated is allowed as correct, this 14th day of September, 1899.
“Wm. E. Grove,
“ Circuit Judge.”

The receiver, in June, 1900, presented a second report, which showed the receipts and disbursements from the 12th day of September, 1899, up to and including the 12th day of June, 1900. The receiver’s affidavit, annexed to the account, stated that the same was a true account “from the 12th day of September, 1899, up to and ihcluding the 12th day of June, 1900,” and that he had served in the capacity ®f receiver “from September 12, 1899, to June 12, 1900, a period of nine months.” The receiver asked for a salary of $125 per month for five months to February 12, 1900, and “$200 per month for the remaining four months embraced in this report, for services.” The circuit court made the following indorsement:

‘‘ The foregoing report and statement examined and approved, and the receiver’s account as therein stated is allowed as correct, this 20th day of June, 1900, and his compensation is fixed as therein set forth.
“Willis B. Perkins,
“Circuit Judge.”

Thompson & Temple were the receiver’s counsel. Their first bill against the receiver was presented September 14, 1899. That bill was intended “to cover all services to March 1, 1899, rendered said receiver.” It amounted to $1,140. That bill contained an item: “To assisting in preparing and signing 1,850 circular letters, looking after replies from the same, consulting with parties in the office that called in response thereto.” The circuit judge indorsed that bill as follows:

“The foregoing bill allowed at $1,000, dated September 14, 1899. Wm. E. Grove,
“Circuit Judge.”

Thompson & Temple rendered a second bill to the receiver. The second bill was for services “from March 1, 1899, to June 12, 1900.” That bill contained an item on its face for “writing and mailing 1,907 letters to collect assessments after the decision of the Supreme Court.” The circuit judge indorsed this bill as follows: “O: K. Willis B. Perkins, Circuit Judge.” On June 19th it was paid in full by the receiver.

August 17, 1900, the petitioners filed a petition asking for the removal of Mr. Calkins, and an accounting. A hearing was had in open court. October 9, 1900, the court made an order removing Mr. Calkins, and also passing upon his account. ITe reduced the compensation of $200 a month for four months, which he had allowed the receiver by the previous order, to $125 a month for all of the time which he served as a receiver. He also reduced the amount allowed by him in June, 1900, to Thompson & Temple to the sum of $500. He directed the receiver to file a final account. Mr. Taft was appointed as receiver, and Mr. Calkins was directed to turn over all the books and assets to him. Later Mr. Calkins filed a petition, in which he recited what had been done in the proceeding, and stated, among other things: ‘ ‘ And your petitioner is ready and willing to comply with the order of the court, and turn over to his successor all property in his hands, or under his custody or control, belonging to the said Masonic Life Association;” and prayed, among other things, “that on filing the receipt of the new receiver for the balance, if any, of the funds and property in your petitioner’s hands, as determined after the allowance of said account and this petition, your petitioner’s bond as receiver may be canceled, discharged, and surrendered.” The final account was passed upon in February, 1901. March 23, 1901, the petitioners appealed. The receiver also appealed. The receiver claims that, under the evidence, the court should not have removed him. On the part of the petitioners it is urged that not only was the circuit judge justified in removing the receiver, but that the latter did not take his appeal from the order of removal in time, and also that, as he stated in his petition of October he was ready to comply with the order of the court which removed him, he is now estopped from raising the question.

It is not necessary to pass upon the last two contentions stated. In Beach on Receivers (section 782), it is said:

“ Inasmuch as the appointment and removal of a receiver are matters which rest essentially in the discretion of the court, it is a general rule that a court of appeal will not review the questions which have been passed upon by a lower court in relation thereto; and the rule is the same whether the one party or the other — the party of the receiver or the party opposed — attempts to prosecute the appeal. ”

It is not necessary to say, if it clearly appeared that the circuit judge had abused his discretion in removing the receiver, we would not review his action. The circuit judge filed a written opinion, in which he said, among other things:

“A review of the proceedings in this case convinces me that at no time since his appointment has the receiver acted with that diligence and promptitude required of him under the plain terms of the statute and the well-understood rules of law regulating the duties of receivers; but, on the contrary, steps looking towards the performance of his duties have been delayed from time to time, until the expenses of the receivership havse become and are out of all proportion to the services actually rendered.”

Four years had elapsed after the appointment of the' receiver when the judge made the order of removal. We think it clear from the record that, though there was much for the receiver to do, he did not accomplish what he ought and would have accomplished had he exercised the diligence of a prudent man in winding up a business of his own. We are not inclined to say the circuit judge did not properly exercise his discretion in removing the receiver.

It is said that the court, after making an order granting the receiver $200 a month for four months, could not after-wards reduce the amount to $125 a month. The record discloses that this order was made ex parte. No one interested in opposing it had notice that the court proposed to make such an order. The circuit judge, in his later order, states that he was not advised of the facts when he made the ex parte order, and that, had he been, he would not have made the additional allowance. When the final order was made, the receiver was still an officer of the court, and was in the administration of the trust. The compensation allowed was generous for the work done. We do not think the court erred in modifying the earlier order.

The judge charged the receiver with several assessments which had been made and not collected. The persons against whom the assessments were made are dead, and left estates from which the assessments could have been collected if the claims had been properly presented. It is urged on the part of the receiver that he did not know of the death of these persons, and ought not to be charged with the assessments. The office of a receiver is not a perfunctory one. It was his duty to learn why the assessments were not paid, and in these instances, had he been diligent, he might have collected these claims. The court did not err in charging him with them.

We now come to the action of the court in surcharging the receiver with part of the attorney’s fee paid by him to Thompson & Temple after their bill had received the O. K. of the circuit judge. A receiver is an officer of court, and amenable to it for a proper discharge of the trust confided to him. When he is in doubt as to what he ought to do, he should take the advice of the court. In this case, before paying the counsel’s fee, the receiver presented it to the court, which passed upon it favorably before it was paid by the receiver. Under such circumstances, the receiver ought not to be charged back with funds paid out by him, and the order should be modified in that respect.

The remaining question to be considered is, Did the court err in fixing the compensation of the receiver at $125 a month ? It is the claim of petitioners that the receiver is operating under the provisions of chapter 300, 3 Comp. Laws, and that section 10870, reading as follows: “Such receivers shall, in addition to their actual disbursements, be entitled to such commissions as the court shall allow, not exceeding the sum allowed by law to executors and administrators,” — fixes the measure of compensation, and the receiver should receive only 5 per cent, on the first $1,000 collected and accounted for by him, and 2£ per cent, above that amount to $5,000, and for all above $5,000 at 1 per cent;, in addition to a per diem charge of $1 per day. It is not conceded by counsel for the receiver that this proceeding is governed by chapter 300, 3 Comp. Laws, but it is contended that it comes under the organic act providing for the organization of the association (see section 7518, 2 Comp. Laws), and that the court may not only appoint the receiver, but may fix the amount of his compensation.

We do not deem it necessary to decide which of these contentions is the proper one. Section 9438, 3 Comp. Laws, relating to the compensation of executors and administrators, reads as follows:

“ When no such compensation shall be provided by the will, or the executor shall renounce all claim thereto, he shall be allowed commissions upon the amount of personal estate collected and accounted for by him, * * * as follows: For the first thousand dollars, at the rate of five per cent.; for all above that sum, and not exceeding five thousand dollars, at the rate of two and one-half per cent.; and for all above five thousand dollars, at the rate of one per cent.; and the same commissions shall be allowed to administrators; and in all cases such further allowances may be made as the judge of probate shall deem just and reasonable for any extraordinary services, not required of an executor or administrator in the common course of his duty.”

Should it be conceded that the provisions of this section should govern this proceeding, does it follow that the court did not have the right to grant to the receiver the compensation he did ? The work done by the receiver was not according to the common course of the duty of an executor or administrator. The assets available to him consisted almost wholly of the right to levy and collect assessments for the purpose of paying liabilities. This involved dealing with nearly 2,000 people. The record discloses that the members of the association early decided not to pay any assessment, and it became necessary to institute legal proceedings to compel them to do so. It was not until one of those cases was followed by the receiver to this court (Calkins v. Angell, 123 Mich. 77 [81 N. W. 977]), that the receiver was able to collect a large proportion of the assessments. All this called for extraordinary services on the part of the receiver, for which he should be paid. Wisner v. Mobley's Estate, 70 Mich. 271 (38 N. W. 262). No one is in a position to know what allowances should be made so well as the court appointing the receiver. We think the compensation fixed by the court was earned, and should be paid.

The other questions raised have been considered, and will not be discussed. The order will be modified as indicated, and affirmed.

Hooker, C. J., and Grant, J., concurred. Montgomery, J., did not sit.


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    TOWNSHIP OF GLADWIN v. TOWNSHIP OF BOURRETT.
    1. Townships — Division—Adjustment of Liabilities — Constitutional Law.
    It being found that 1 Comp. Laws, § 3462 et seq., providing foían adjustment of rights and liabilities on a division of the territory of a township, applies to this case, the question raised as to the constitutionality of section 2414 is not decided.
    2. Same — Judgments—Conolusiveness.
    Where a township is divided after a suit has been commenced against it and before judgment, the new township, on an accounting between it and the old one, is bound by the judgment.
    3. Same — Construction of Statute.
    1 Comp. Laws, § 3462 et seq., purporting to cover cases where land is detached from one township and attached to another or organized into a new one, applies also where a township is formed by taking territory from two existing townships, especially where the act creating the new township recognizes that liability may attach to it from the fact of organization.
    4. Same — Uncollected Taxes.
    Where a township is divided, uncollected taxes should be apportioned between the respective townships, when collected, in the same proportion as other credits.
    Appeal from Gladwin; Sharpe, J.
    Submitted February 20, 1902.
    (Docket No. 6.)
    Decided September 17, 1902.
    Bill by the township of Gladwin against the township of Bourrett for an accounting. From a decree for complainant, defendant appeals.
    Affirmed.

      Campbell & Foster, for complainant.
    6r. W. Davis, for defendant.
   Moore, J.

Surveyed township No. 19 N., of range 2 E., now part of the township of Bourrett, was formerly part of the township of Gladwin. It is the claim of complainant that said surveyed township should bear its share of the liabilities of said township of Gladwin, less the assets of the township, as they existed at the time the division was made; and that, as this claim was disputed, it was justified in commencing this proceeding in chancery to enforce its claim. From a decree made in favor of complainant, the defendant has brought the case here by appeal.

The circuit judge filed a written opinion in the case, excerpts from which will aid in understanding the questions involved. Among other things, he said:

“This suit is brought for an accounting between the townships, complainant and defendant. By act of the legislature of 1897 (Local Act No. 422), township 19 N., of range 2 E., was detached from the township of Glad-win, of which it had theretofore formed a part, and, with township 20 N., of range-2 E. (by said act detached from the township of Clement), organized into a new township, to be known as the ‘ Township of Bourrett. ’ This act took effect on the 5th day of May, 1897. * * *
“The items which compose complainant’s claim consist of a judgment rendered in favor of the county of Gladwin against the complainant township in June, 1897, for $20,-717.41, but afterwards compromised, by the county at $7,000, and certain outstanding contingent and highway orders. It is claimed by defendant’s counsel that this judgment, having been rendered after the act organizing said defendant township took effect, is not binding upon it. Even if we concede this, the evidence in this case satisfies me that the amount of such indebtedness from the township of Gladwin to the county of Gladwin was at that time more than, $7,000, so the defendant township is benefited by the compromise, and has no cause for complaint. It is admitted that this item of $7,000 has been reduced by payment of $465.32, and I find that the defendant township is liable to pay its proportion of the balance of $6,534.68.”

A decree was made in the case, the important provisions of which are as follows:

“That a joint meeting of the township boards of the townships of Gladwin and Bourrett was called to meet on the 6th day of December, 1897, for the purpose of apportioning the rights, moneys, credits, and personal estate and the debts owing by the said township of Gladwin; that such meeting was held, and an attempt to make such an apportionment was made, but the township board of the township of Bourrett neglected and refused to arrive at a settlement of the matters and things in difference between said townships as provided by law.
“ That, at the time said act took effect, said township of Gladwin was indebted to the county of Gladwin in the sum of $6,534.68, and upon outstanding contingent orders bearing date less than six years before May 5, 1897, in the sum of $756.18; and that on said date the total value of the personal property of complainant township was the sum of $410, leaving a balance of indebtedness over personal property of $6,880.74, of which the defendant township should bear its proportion.
“That the assessed valuation of said township 19 N., range 2 E., for the year 1896, was the sum of $74,740, and the assessed valuation of the whole township of Gladwin for the said year was the sum of $190,780, and that taking a proportion of the aforesaid balance according to the said assessed valuation gives the sum of $2,695.12.
“ That the above-mentioned local act provides that any indebtedness incurred by the township of Bourrett by reason of the passage of said act, to the township of Gladwin, shall be paid from taxes assessed from the taxable property in said township 19‘ N., range 2 E.
“That on the 5th day of May, 1897, there were large amounts of uncollected taxes for 1896 and prior years upon the territory theretofore comprised in the said township of Gladwin, which said taxes, if thereafter collected, would in part belong to said township of Gladwin, and such part should, when collected, be apportioned with the defendant township in a proportion of the foregoing assessed valuation.
“It is therefore ordered, adjudged, and decreed that said defendant pay to said complainant the sum of two thousand six hundred and ninety-five dollars and twelve -cents, together with complainant’s costs of suit to be taxed; that the said amount, with interest thereon at six per cent, per annum from the date of the decree, be paid from taxes assessed and levied upon the taxable property in surveyed township 19 N., of range 2 E., that being a part of defendant township. And it is further ordered, adjudged, and decreed that this decree shall be final as to all matters and things in difference between the parties arising from the detachment of surveyed township 19 N., of range 2 E., from the township of Gladwin, and making the same a part of the township of Bourrett, except as to township taxes of 1896 and prior years levied upon the tax rolls of Gladwin township, and collected after the 5th day of May, 1897, which said taxes, when collected, shall be paid to defendant township in the proportion fixed by the aforesaid valuations, — that is, in the proportion of 74,740 to 190,780, — . and, if not so paid to defendant township, or not so apportioned to the said parties by the treasurer of Gladwin county, then either party may petition the court in this cause for a further accounting in relation to said township taxes collected.”

The solicitors are not agreed under what statute this proceeding is commenced. The defendant’s counsel claims it is brought under the provisions of section 8, chap. 20, 1 How. Stat., and devotes a good many pages of his brief to show said section is unconstitutional and void. The solicitors for complainant claim the provisions of sections 3462-3471, 1 Comp. Laws, apply to the case as stated in the bill and made by the testimony. We agree these provisions do apply, and that it is not necessary to decide whether section 8, chap. 20, 1 How. Stat., is unconstitutional or not.

Counsel for defendant insists that there were included in the judgment of the county against the township of Gladwin a great many illegal items, and that said township was not indebted to the county. These items are considered in detail in the brief of counsel, and an argument is made to show the illegality of the various items. We have examined the record with sufficient care to be convinced that the court did not err in concluding that there was in any event more than $7,000 due from the township to the county, but we do not think that is now ah open question. While township 19 N., range 2 E., was a part of the township of Gladwin, the'county of Gladwin sued the township. The township caused its appearance to be entered. By proper pleadings an issue was framed, and a trial had. All this occurred before a division of the township. It is true the formal judgment was not entered until a few days after the division of the township occurred, but township 19 N, range 2 E., was just as much represented in that proceeding as was any other portion of the township, and was just as much bound by the judgment which was reached. See 2 Black, Judgm. §§ 534, 584, and the cases there cited.

It is insisted by counsel that the provisions of the statute apply only when land is detached from a city or township and attached to a city or township, or organized into a new township; that, as the township of Bourrett is now made up of a surveyed township taken from the township of Clement and one from the township of Gladwin, it makes a case outside of the statute, and within the provisions of the common law. It is further urged that when the legislature creates a new township out of a portion of the territory of an old one, without making other provision, such old township is liable for all debts contracted before the separation, and retains all its property, rights, and credits; citing cases.

We cannot agree with counsel in this construction of the statute. It is a matter of common knowledge that, when the State was new, the townships, when organized, frequently embraced more than one surveyed township; that as the country became improved, and more thickly settled, the large townships were divided, and new townships were created, until in the older and more thickly-settled portions of the State the townships, as a rule, now consist of one surveyed township. It was evident that, when these changes were made, some rule ought to be provided for the fair and equitable division of the assets and liabilities of the larger townships between the smaller ones formed by making the divisions of larger townships; and it was to meet these emergencies that the statute was passed. The provisions of this statute were doubtless in the minds of the legislature when Act No. 422, Local Acts 1897, creating the new township of Bourrett, was enacted. It was also doubtless advised of the fact that the county of Gladwin then had a suit pending against the township of Gladwin for a claimed indebtedness. This is indicated by that portion of the local act reading as follows:

“Sec. 6. Any liability which attaches to the township of Bourrett by reason of the detaching of either of the surveyed townships composing it from the towns to which they severally belonged shall be paid from a fund raised by taxes assessed solely upon that surveyed township by reason of whose detachment such liability was incurred.”

Had township 19 N. grange 2 E., remained a part of the township of Gladwin until the county obtained its judgment, the property therein would have had to pay its proportion of the judgment^; and the legislature very properly provided, as we think, that it should not escape liability by becoming detached and made a part of another township.

We now come to the more difficult question of whether the court made a right disposition of the uncollected taxes. These taxes may or may not be collected. It is a matter of common knowledge that, after the timber has been removed, the land is not in some localities regarded as worth the taxes levied against it, the taxes are never paid, and the title comes back to the State. In some instances, after sufficient time has elapsed, the lands are made subject to homestead entry. No court can tell in advance what portion of these delinquent taxes will be paid. The decree would seem to provide the only possible way of working out substantial justice.

The decree is affirmed, with costs.

Hooker, O. J., Grant and Montgomery, JJ., concurred.


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    CULVER v. SMITH.

    1. Pleading — Uncertainty—Bill oe Particulars.
    An objection that a contract, as stated in the declaration, is too uncertain to permit a recovery, will be disregarded, where no demurrer was interposed, and the contract is set out with sufficient definiteness in the bill of particulars.
    3. Contracts — Evidence.
    In an action on a contract the terms of which are in dispute, evidence of what was done by plaintiff thereunder is admissible.
    3. Evidence — Letter by Stranger.
    A party’s testimony cannot be contradicted by a letter not shown to have been written with his knowledge, or by one having any interest in the suit.
    4. Same — Witnesses—Impeachment.
    In an action on an oral contract, a witness present when the contract was entered into testified that certain things sworn to by plaintiff were not stated in the conversation. On cross-examination he denied having stated to certain persons, at a specified time and place, that plaintiff was entitled to what he claimed. Held, that the testimony of such persons was properly admitted on rebuttal to contradict his denial, the jury being instructed that it bore merely on the credibility of. the witness.
    Error to Marquette; Stone, J.
    Submitted April 9, 1902.
    (Docket No. 26.)
    Decided September 17, 1902.

      Assumpsit by Rush Culver against Eranklyn H. Smith to recover a commission on the purchase of certain lands. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Pratt & Davis and Ball & Ball, for appellant.

      Button & Culver (McKnight & McAllister, of counsel), for appellee.

       Rehearing denied January o, 1903.

   Moore, J.

This suit was brought to recover a commission of 25 cents an acre, to which plaintiff claims he was entitled because of the purchase by defendant of a quantity of lands and timber. The case was tried before a jury. The plaintiff obtained judgment. The defendant has brought the case here by writ of error.

It is claimed the contract, as stated in the declaration, is so uncei’tain and indefinite the plaintiff is not entitled to recover upon it. The material portion of the declaration is as follows:

“For that whereas, heretofore, to wit, on the first day of September, 1899, the said defendant was desirous of becoming acquainted with timber lands of the Upper Peninsula of Michigan, with a view of making purchases thereof, or of the timber thereon, for himself and others, and, being so desirous, did request the said plaintiff to show him, the said defendant, timber lands of the Upper Peninsula of Michigan, generally, including certain timber lands, or the timber thereoxx, that he, said plaintiff, was empowered to sell, and to give him, said defendant, information relative to such timber lands of the Upper Peninsula, the character of the timber, and the situation and desirability of the same. And in considex’ation of the promise of him, said plaintiff, then and there made, to comply with the request of him, said defendaxxt, as aforesaid, said defendant did promise and agree to and with said plaintiff that all timber lands, or the timber thereon, of the Upper Peninsula of Michigan, which might thereafter be purchased by him, said defendant, or for others through the exertions of him, said defendant, should be purchased by and through him, said plaintiff, upon which purchase or purchases he, the said plaintiff, should be entitled to a fair commission upon the purchase of such lands or timber as he, said plaintiff, was not then empowered to sell, the said lands or timber which the said plaintiff was empowered to sell being named at a price which included the commission of said plaintiff; and that, in the event of any of said lands, or the timber thereon, being purchased by and in the name of him, said defendant, or by other persons through the exertions of him, said defendant, direct from the owners thereof, and not through him, said plaintiff, that he, said defendant, would pay to him, said plaintiff, the sum of 25 cents per acre for each and every acre so purchased. And that said plaintiff says that he, said plaintiff, did, to wit, upon the day and year aforesaid, fully perform and carry out his agreement, as aforesaid, in all respects as agreed, as aforesaid, and that the said defendant did afterwards purchase for himself, and by others, through his exertions, a large quantity, to wit,” etc.

No demurrer was interposed to the declaration. A bill of particulars was filed, in which a statement was made that plaintiff’s claim was founded upon a certain contract, which was set out in detail, by which plaintiff was entitled to a commission of 25 cents an acre on lands which were described in detail. The plea of the general issue was filed, with notice of set-off attached. The testimony related to the lands described in the bill of particulars. While the declaration, if demurred to, might be regarded as indefinite and uncertain, when taken in connection with the bill of particulars it could not be so regarded. No one was misled by the pleadings. They fully advised the defendant of the claim made against him by the plaintiff.

Complaint is made because testimony' was permitted showing plaintiff hired a livery team, and employed men to aid in looking the lands in controversy. It is said this was not admissible under the bill of particulars. It was not claimed that defendant was liable in this action for the pay of the men or the use of the team. The testimony was received to show what was done after the plaintiff claims a contract was made. We think it was proper to show the history of the transaction, and that was the only purpose of the testimony.

It is said the court erred in excluding a letter written by Mr. Russell to Mr. Hull, which it is claimed was inconsistent with the testimony of plaintiff and with the contract sworn to by him. The testimony does not disclose that the letter was written by the direction or authority or knowledge of plaintiff. Nor does it show that Mr. Russell had any interest in the contract plaintiff claims was made, but which defendant says was not made. We think the letter was properly excluded.

The testimony discloses that, when the conversation occurred between the parties to this litigation which plaintiff claims constituted the contract, one Mr. C. was present. He was called as a witness by defendant. He was asked if certain things sworn to by the plaintiff were stated in that conversation'. He replied that he heard nothing of the kind. On the cross-examination he was asked if he had not stated at a certain time and place, and in the presence of certain persons who were named, that Mr. Culver was entitled to a commission of 25 cents an acre from defendant. He denied he had so stated. Witnesses were then called in rebuttal, who contradicted Mr. O. in that regard. This is said to be error. The court allowed the testimony as bearing simply upon the credibility of the witness, and so instructed the jury. We think the testimony was admissible for that purpose.

Error is assigned upon the refusal of the court to give certain requests to charge. It would not profit any one to take these- assignments of error up seriatim. The court gave a very careful exposition of the law applicable to the case. The serious question in the case was one of fact. The parties were in direct conflict as to what the agreement was. That question was fully and properly submitted to the jury.

What we have said in relation to the charge of the court will dispose of the error assigned because the judge refused to grant a new trial.

Judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


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    CANNEY v. CANNEY.
    1. Attorney’s Lien — Decree of Divorce.
    Under a decree in a divorce case, the wife was permitted to acquire title to real estate owned by'herself- and husband jointly, on paying the sum of §800, which represented what was left after taking out her original interest and the sum awarded as alimony. Held, that the husband’s solicitor had no lien on such money for his services.
    2. Homestead — Construction of Statute.
    The homestead provisions of the Constitution and statutes should be liberally construed.
    3. Same — Sale—Title to Proceeds.
    General creditors can have no lien on money derived from the sale of their debtor’s homestead, made in pursuance of a decree in a divorce case.
    Appeal from Wayne; Hosmer, J.
    Submitted April 24, 1902.
    (Docket No. 48.)
    Decided September 17, 1902.
    Bill of interpleader by Sophia Canney against Alfred Canney, John "W. McGrath, James H. Pound, Frederick Speier, Sophia Keith, and Thomas S. Parker, receiver. From the decree rendered, defendant Canney appeals.
    Modified.

      James H. Pound (Charles R. Robertson, of counsel), for defendant Canney.

      Wesley L. Nutten, for defendant McGrath.
   Moore, J.

This is a bill of interpleader, wherein a decree of interpleader was awarded to complainant. There was no appeal taken from this decree. The case then came on to adjust the equities between the defendants, and a decree was made as follows:

“It is ordered, adjudged, and decreed that the fund paid into court by complainant be distributed as follows:
First. That the sum of two hundred and fifty-two dollars, and interest from February 14, 1900, be paid to defendant John W. McGrath, he having the first lien upon said fund.
Second. That the sum of one hundred and seventy-five dollars, and interest from November 23, 1899, be paid to the defendant James H. Pound.
Third. That the sum of one hundred and ninety dollars, with interest from November 23, 1899, to wit, tbe sum of eighteen dollars and eighty-five cents, be paid to Sophia Keith, or her solicitor, Maier B. Breitenbach.
Fourth. That the register of said court pay out of said fund the fee on final decree herein.
Fifth. That .the balance be paid over to the defendant Thomas S. Parker, receiver of William Jacquemain; it appearing that the amount due said receiver is in excess of the balance of said fund after the payments aforesaid.”

An appeal was duly taken by the defendant Alfred Canney, who insists the decree should be reversed as to the claim of Mr. McGrath and Mr. Parker, receiver; that it should stand as to the claim of Mr. Pound, and be modified as to the claim of Mrs. Keith.

Alfred Canney and complainant, Sophia Canney, were for many years husband and wife, and, before complainant sued him for a divorce, they jointly owned a lot of land in the city of Detroit,— a single lot,— upon which were two dwelling houses, one of which was rented. Complainant filed a bill of complaint for a divorce. There was a contest, in which Mr. McGrath appeared as the solicitor for Mr. Canney. After a hearing, a decree was granted. In this decree Mrs. Canney was required to deed her interest in the real estate to her husband upon his paying her $2,500 within a certain time, and, upon his failure to do so, he was required to deed to her his interest in the houses and lot upon her paying to him $800. Mr. Canney did not pay the $2,500, and, before Mrs. Canney paid the $800, she was notified by various parties that they claimed a lien upon the fund. As she did not know to whom to pay the money, this bill was filed.

A good many questions are raised by counsel, but we regard two of them as decisive. The first question to be considered is whether Mr. McGrath is entitled to a lien upon the fund. It is evident that in the divorce case the circuit judge regarded the real estate, with the two houses upon it, as worth $3,300. The title was in both the parties. Each had an interest in the houses and lot, if each interest was of like value, of $1,650. In addition to decreeing to the complainant the value of her interest, she was awarded a portion of the interest of defendant, so that complainant’s interest in the houses and lot was determined by the decree to be $2,500, while the defendant’s interest was decreed to be $800. Can it be said this $800 is the result of the litigation, or is it the residuum ? Suppose the real estate, instead of being one lot of land with its buildings, was 33 acres of land, each acre of which was of the same value, and it had been decreed that the title to 25 acres should be in Mrs. Canney, and 8 acres in Mr. Canney, would it be claimed the solicitor had a lien upon the 8 acres for the value of his services ? If not upon the land, why upon the proceeds of the land ? In the divorce proceedings an original bill and a cross-bill were filed, in which each of the parties accused the other of wrongs against the marital relation. The primary question was whether a decree of divorce should be granted. As an incident, after that question was settled, the question of the division of the property arose. Both of these questions were decided adversely to Mr. Canney. No property came to him as the result of the litigation which he did not have before it began, but the reverse of that is true. It cannot be said a decree was obtained against Mr. Canney because of the services of his solicitor, but that it was obtained notwithstanding his efforts. In the second edition of Jones on Liens, at page 100 (§ 153), it is said:

“The lien of an attorney upon a judgment is properly denominated a lien in the broad sense of the term, although it rests merely on the equity of the attorney to be paid his fees and disbursements out of the judgment which he has obtained. It is not a lien that depends upon possession, as liens ordinarily do. There can be no possession, of a judgment, for this exists only in intendment of law. The execution issued upon a judgment does not represent the judgment, and the possession of the execution is not a possession of the judgment. In regard to possession, this lien of an attorney resembles the maritime lien of a seaman upon the vessel for his wages. Both liens are exceptions to the general rule as respects the element of possession.
“This lien, therefore, not arising from a right on the part of the attorney to retain something in his possession, but being a right to recover for his services in obtaining a judgment for his client, is called the attorney’s charging lien. It is so called because the costs and fees of the attorney are made a charge upon the judgment recovered, and this charge is enforced by the court. Some confusion has arisen in the decisions on this subject from a failure in many cases to observe the distinction between the retaining lien and the charging lien. The latter lien never extends beyond the costs and fees due the attorney in the suit in which the judgment is recovered;' but a retaining lien extends to the general balance due the attorney from the client for professional services, and his disbursements in connection therewith. In other words, the charging lien is a special lien, and the retaining lien is a general lien.”

At page 102 (§§ 155,156) it is said:

“An attorney’s lien upon a judgment, as by force of usage we are permitted to designate his claim upon the judgment recovered, is .founded upon the same equity which gives to every person who uses his labor and skill upon the goods of another, at his request, the right to retain the goods till he is paid for his labor. This equitable principle is derived from the civil law. It is considered reasonable and proper that an attorney, by whose labor and at whose expense a judgment has been obtained for his client, should have an interest in that judgment which the law will regard and protect. Lord Kenyon declared ‘ that the convenience, good sense, and justice of the thing required it. ’ * * * It was doubtless recognized upon the ground of justice that the attorney had contributed by his labor and skill to the recovery of the judgment, and the court, wishing to protect its own officers, exercised its power to that end; or, as Lord Kenyon puts it: ‘ The party should not fun away with the fruits of the cause without satisfying the legal domands of his attorney, by whose industry, and, in many instances, at whose expense, those fruits are obtained.’”

This does not indicate that where a decree is obtained against a client, and he happens to have some property left after the decree is satisfied, the solicitor has a lien for his services upon that property. The conditions in this case are not such as to give the solicitor a lien upon the $800.

It is said the decree in favor of Mr. Parker, who represents creditors, should not be permitted to stand, because the fund represents the homestead of Mr. Canney; that he had no desire to have his homestead sold; and, because the court compelled a sale, that he cannot be deprived of the results of the sale, but is entitled to the fund, as against his creditors, to reinvest in a homestead. Section 2, art. 16, of the Constitution, provides for the exemption of a homestead to residents of the State. See, also, section 10362, 3 Comp. Laws. These provisions of the Constitution and the statute have been liberally construed. See Eagle v. Smylie, 126 Mich. 612 (85 N. W. 1111), and Corey v. Waldo, 126 Mich. 706 (86 N. W. 122), where there is quite a full collation of the authorities. Under the facts disclosed by this record, we do not think the general creditors of Mr. Canney were entitled to this fund.

The remaining question is, Should the decree as to Mrs. Keith be modified? Mr. Canney was a witness in the divorce case. It was claimed he then committed perjury. He was arrested upon that charge. At about that time he assigned his claim to the fund to his sister, Mrs. Keith. The assignment was in the usual form, and authorized her to receive the money, and to receipt for it. The claim is made that the purpose of the assignment was to enable Mrs. Keith to procure bail for her brother, and to enable her to aid him in making his defense in the criminal case. The solicitor for Mr. Canney in his brief says he wants Mrs. Keith to have all she is equitably entitled to, but claims the amount allowed her is much too large. Mrs. Keith appears to have been, as a sister naturally would be, very much interested in her brother when he was arrested, and spent much time in his behalf. She carried food to him at the jail, she procured bail for him, and,'after it was done, made a home for him at her house. She loaned him money. Counsel was procured for him. There is a dispute between the parties as to what she did, and how much she has received. She certainly rendered services along the line which was contemplated when the assignment of the fund was made to her, and we are not satisfied the circuit judge allowed her too much.

The decree is reversed as to Mr. McGrath and Mr. Parker, receiver, and affirmed in all other respects.

Hooker, O. J., Grant and Montgomery, JJ., concurred.


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    NEWBRO v. FRIAR.
    Homestead — Land Contract — Evidence—Appeal.
    Evidence reviewed, and held insufficient to show that complainant had a homestead interest in certain lands at the time a contract for their purchase was assigned by her husband to defendant.
    Appeal from Kent; Wolcott, J.
    Submitted April 11, 1902.
    (Docket No. 72.)
    Decided September 17, 1902.
    Bill by Florence N. Newbro against James Friar to set aside an assignment of a land contract. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Fred A. Maynard (James A. Lombard, of counsel), for complainant.

      Dunham & Malcolm, for defendant.
   Moore, J.

Complainant was formerly the wife of Dr. Greene. She filed this bill in chancery to have a house and lot on Barclay street, in Grand Bapids, decreed to be her homestead, and to have an assignment of a land contract made by Dr. Greene to defendant annulled because she did not join in the assignment. From a decree dismissing her bill of complaint, she has brought the case here by appeal.

One of her solicitors properly says in the brief:

“The single question involved in this case is whether or not the complainant had a homestead interest in the premises in question on the 24th day of August, 1899, the date of the assignment of the land contract by her husband to James Friar, the defendant herein. Necessarily this question is largely one of fact.”

The record discloses that prior to 1890 the complainant and Dr. Greene were married. He engaged in the practice of his profession in Grand Rapids. In October, 1890, he bought a piece of real estate on Barclay street upon land contract, and with his family lived upon it. On or about the 1st of September, 1896, the complainant was in ill health. It was thought a change of climate would benefit her. An attempt was made to sell the Barclay-street property. No sale of it was made, and it was rented for two years. The household goods were shipped to Dubuque, Iowa, and the doctor and his family went there, expecting to live there for at least a time. Before they got settled in their new home, a telegram made it necessary for the doctor to return to Grand Rapids. He had been in Grand Rapids but a day or two when he got a telegram from his wife not to return to Dubuque; that she was coming back. She soon came to Grand Rapids, and the complainant claims that, because the house was rented, they rented and moved into a house on Paris avenue. The defendant claims the tenant would have been glad to surrender the lease, but that complainant and her husband desired to live in a better house, and for that reason moved into a house on Paris avenue. In the spring of 1897 Dr. Greene bought two acres of ground, upon which there were buildings, just outside of the city-limits, and improved the place by expending upon it about $1,400, and moved his family into it, where they and he resided until August, 1899. In the meantime the Barclay-street place continued to be rented to tenants. Dr. Greene regarded himself as a resident of the township; he voted there, and was elected to a school office.. In August, 1899, the complainant filed a bill of divorce against him, in which she charged him with a very serious crime. For $700 Dr. Greene assigned the land contract to defendant, and left the State. Afterwards he was in Grand Rapids. The property interests between Dr. Greene and his wife were adjusted out of court. Among other things, he gave her a quitclaim deed to the Barclay-street property. The divorce suit was heard, and a decree granted.

Upon the hearing of the case at bar a large mass of testimony was taken, Dr. Greene coming from outside of the State to testify on behalf of his wife. It would profit no one to incorporate in this opinion what is shown by the record. Not only has the complainant failed to show by a preponderance of evidence that the Barclay-street house, at the time of the assignment of the land contract, was a homestead, but it is shown by a preponderance of evidence that it was not a homestead.

The decree is affirmed, with costs of this court.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


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    FORD v. McLANE.
    1. Evidence — Money Loaned — Financial Condition oe Borrower.
    In an action to recover for money furnished to a subcontractor of defendant on the latter’s promise to repay the same, the loan having been sought by the former for his own benefit, and plaintiff having refused to make it except on defendant’s credit, evidence that defendant had money in the bank, and therefore did not need to become a borrower, was properly excluded as irrelevant.
    2. Statute oe Frauds — Debt oe Another.
    A verbal promise to repay money furnished to a third person solely on the credit of the promisor is not within the statute of frauds.
    8. Attorneys — Evidence—Privileged Communications.
    Whether an attorney who has been consulted professionally by a person who is a witness in, but not a party to, a suit, can be called to impeach the witness by disclosing the statements made by him at such consultation, — queere.
    -4. New Trial — Denial—Appeal.
    The affidavits and testimony on a motion for a new trial, based on the ground of newly-discovered evidence, were examined, and held insufficient to justify a reversal of the action of the circuit judge in denying the motion.
    Error to Kent; Perkins, J.
    Submitted April 11, 1902.
    (Docket No. 98.)
    Decided September 17, 1902.

      Assumpsit by Maggie Ford against John H. McLane for money loaned. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Crane, Norris & Drew (Leonard F. Humphrey, of counsel), for appellant.

      Dunham & Malcolm, for appellee.
   Moore, J.

The statement of questions of fact is taken from the charge of the court to the jury, as follows:

‘ ‘ This is an action brought by the plaintiff against the defendant to recover the sum of $500, claimed to have been loaned to the defendant by the plaintiff under an oral agreement made between them. On the part of the plaintiff it is claimed that, .while the construction of the Grand Rapids, Belding & Saginaw Railroad was in progress, the agreement in controversy was made; that the principal contractor for the construction of this railroad was William Alden Smith & Co.; that J. H. McLane & Co., a firm of which the defendant is a member, was a subcontractor under Smith & Co., and that one Fred L. Beacham was'a contractor for the construction of a portion of the road under McLane & Co. The plaintiff claims, in substance, that on the 19th day of September, 1899, the defendant, John H. McLane, authorized and directed the plaintiff, through her agent, Fred Ford, to let Fred L. Beacham have not to exceed $500 in money, to be paid out for labor upon this railroad, and it is claimed that the defendant then and there agreed to repay the amount to the plaintiff as soon as the railroad was completed ; that, pursuant to this agreement, the plaintiff let Mr. Beacham have $500, which the defendant has not paid, and for the recovery of which this action is brought. On the other hand, the defendant claims that no such agreement was ever made as claimed by the plaintiff; that he never authorized the payment to Beacham by plaintiff of any sum of money whatever; that he knew nothing about the transaction, and never agreed to pay the plaintiff any portion of the money she may have let Beacham have. Further, the defendant claims that, if 'plaintiff' ever let Beacham have any money, she did it upon her own responsibility, and upon the credit of Beacham, and not upon his (the defendant’s) credit or responsibility. ”

The jury rendered a verdict in favor of the plaintiff. A motion for a new trial was made and overruled. The case is brought here by writ of error.

Upon the trial the counsel sought to show that, at the time of the transaction, J. H. McLane & Co. had a bank account. This testimony was excluded. It is said this testimony was competent as bearing upon the probability of Mr. McLane making the loan. Counsel cite In re Young’s Estate, 39 Mich. 429, and many other cases. An examination of the cases cited will show them unlike the case at issue. There was no claim in this case that Mr. McLane needed, to borrow money. The claim was that McLane & Co. were interested in not having the men quit work; that Beacham, the subcontractor, needed money; that Mrs. Ford refused to loan it to him, but would furnish it to him on the credit of McLane. She produced testimony which, if believed, showed that agreement. Mr. McLane denied it. The case was submitted to the jury, who found the version of the witnesses for the plaintiff to be the correct one.

Upon the completion of the testimony for plaintiff, a motion to take the case away from the jury because within the statute of frauds was overruled, we think properly, under Larson v. Jensen, 53 Mich. 427 (19 N. W. 130). It is claimed that, if any promise was made by McLane, it 'was collateral to the promise of Mr. Beacham, and void under the statute of frauds. The court instructed the jury that :

“The burden of proof is upon the plaintiff to establish her case by a fair preponderance of the evidence. And you will understand that it takes two parties to make an agreement. There must be a meeting of minds; each must understand the matter as the other does. This is the sole question in the case: Was the credit for the money which it is claimed was given to Beacham extended solely and exclusively to the defendant, John H. McLane ? The plaintiff claims that it was, and the defendant denies it. The plaintiff cannot recover unless you find that Mr. McLane was'the sole debtor. If there was any liability whatever existing against Mr. Beacham in favor of the plaintiff, the plaintiff cannot recover. It must be found by a fair preponderance of the evidence that the defendant, John H. McLane, is the sole debtor; that the credit was extended solely and exclusively to him; that no liability exists, or ever existed, against Mr. Beacham for this loan, ■ — before the plaintiff is entitled to recover. * * * In other words, as I have already said, you must find that the agreement claimed by the plaintiff was not only made, but that it was an independent agreement, separate and apart from any liability on the part of Beacham. Indeed, you must find that there was no liability on the part of Beacham, that defendant was the sole promisor, and that the credit was exclusively extended to him, before you would be authorized to find for the plaintiff.”

We think this fully covered the question presented.

We now come to the question of whether the court erred in refusing a new trial. Upon the motion affidavits were filed. Those of two of the witnesses were in relation to formal matters. Two of them were affidavits of lawyers who were consulted, not by Mrs. Ford, but by Mr. Ford, and gave him advice. They swore in the affidavits in relation to a paper which was produced on the trial, and that Mr. Ford made a different statement to them from what he testified to upon the trial. Oral testimony was also taken upon the hearing of the motion. The testimony of one of these witnesses must have been a disappointment to counsel, as he testified he remembered nothing about the transaction. The other witness who gave oral testimony was the cashier of the bank, who was a witness upon the trial. Upon the motion he swore in relation to alleged admissions made by Mrs. Ford. His recollection was not at all clear as to what was said by Mrs. Ford. Mr. Ford filed an affidavit denying the material statements made in the affidavits made by the two lawyers. Upon the hearing of the motion it was made to appear that, upon the trial, it was shown where the paper mentioned in the affidavits of the attorneys was drawn, upon the first day of the trial; that the case was not submitted to the jury until about noon the following day; that one of the attorneys making the affidavits then had an office in the same building as the attorneys for defendant, while the other one lived in Lowell.

As the two attorneys were consulted professionally, I do not think their affidavits were competent, or that they would be competent witnesses upon' a new trial; but whether that is so or not, as their testimony relates, not to-statements made by one of the parties to the litigation, but by a witness, that fact should be weighed in deciding the motion for a new trial. Conceding the affidavits to be competent, and taking all the affidavits and testimony in favor of the motion and opposed thereto, we are not satisfied such a showing was made as would justify this court in reversing the action of the circuit judge in overruling the motion for a new trial.

Judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred.