author: Grant, J. Hooker, J-.

text:
    MALLAR v. MALLARIAN.
    Mortgages—Foreclosure—Deficiency Degree—Redemption-Suit to Set Aside Sale.
    Where a mortgagee bid in the property at foreclosure sale at less than one-half its value, and sought to recover the deficiency by garnishment proceedings, but was unsuccessful, and the mortgagor then redeemed and immediately sold the property, the mortgagee could not assert, on suit to set aside the foreclosure sale, that it was invalid for irregularities, he having chosen his remedy, and not being in a position to say that he was ignorant of the law in not knowing that defendant had a right to redeem. Hooker, J., dissenting.
    Appeal from Wayne; Rohnert, J.
    Submitted October 7, 1904.
    (Docket No. 33.)
    Decided December 7, 1904.
    Petition by John H. Mallar against Dickran H. Mallarian and Krekore Mallarian to set aside a certain mortgage foreclosure sale. Prom a decree dismissing the petition, complainant appeals.
    Affirmed.

      Robert T. Speed, for complainant.

      Anderson & Rackham, for defendants.
   Grant, J.

Complainant foreclosed a mortgage executed by defendant to him. Decree was duly entered, and also a personal decree for any deficiency that might result upon the sale. The sale was made, the land bid in by the complainant for $300 (although he testified that he bid only $200), and, at the instance of the complainant, the sale confirmed. A few days after, he brought suits upon the decree for deficiency against defendant, and issued writs of garnishment. The return-of the garnishee showed an indebtedness of only $9.47. Defendant, within the time allowed by law, redeemed the sale. Complainant refused to receive the redemption money, and filed a petition to set aside the sale for two reasons: (1) Because no notice of sale was posted as required by law; (2) because the sale was not made by any one authorized by the decree.

We deem it unnecessary to determine whether either of the objections is valid. The entire proceedings were conducted under the direction of the complainant and his solicitor, who was not Mr. Speed, the solicitor of record in this court. Complainant testified that the land was worth $700. 5 According to the return of the officer, the land was sold to the complainant for $300. According to the complainant’s testimony upon the hearing of this petition, he bid only $200. The defendant treated the sale as valid, and redeemed therefrom, as the law authorized him to do, and immediately sold and deeded the land to his brother. Complainant, in my judgment, cannot now be permitted to assert the invalidity of his sale from which he has received all that the law gives him. Had he bid off the land at something near its fair value, and the defendant had redeemed, complainant would have been satisfied.

It is urged that it is unfair in the defendant being allowed to redeem from this sale and immediately sell the land, thereby preventing the decree for the deficiency to be realized therefrom by execution. Complainant deliberately sought to obtain more by his conduct than he was entitled to, for he bid in the property at less than one-half its value, and intended, from his testimony, to bid it in for less than one-third its value, and to recover the residue from the defendant on the personal decree. The conduct of one is no more commendable in morals than is the conduct of the other. If the defendant is solvent, the. complainant can realize from his sale what he intended to. If he is not now and never shall become solvent, complainant must lose it. In either event he has deliberately chosen his remedy, and will not now be heard to say that he was ignorant of the law in not knowing that the defendant had the right to redeem.

I think the decree should be affirmed, with costs.

Moore, C. J., and Carpenter and Montgomery, JJ., concurred with Grant, J.

Hooker, J-.

(dissenting). The complainant filed a bill to foreclose a mortgage, and obtained a decree requiring defendant to pay $901, failing in which the premises were to be sold at foreclosure sale by or under direction of the sheriff. On November 15, 1902, the premises were sold under the decree for $300, by one Yan Dyke, and the complainant was present and became the purchaser, acting under instructions from his counsel. The report of sale was filed by the sheriff, and shows that he sold the premises for $300 to the complainant, and that there was a deficiency of $671.72, and on December 15, 1902, a decree for the deficiency was made. On December 20, 1902, complainant sued the defendant in justice’s court in Detroit to recover the amount due on the decree for the deficiency, and a writ of garnishment was served on the Calvert Lithographing Company. The principal action was dismissed on the return day, and a new action was begun in the circuit court upon the same day. The Calvert Company was again garnished, and on January 13, 1903, filed its disclosure. We are not informed what the disclosure showed, or what has become of the proceedings instituted in the circuit- court. Meantime, and soon after the action was commenced in the justice’s court, the defendant redeemed the property for $302.20, and on the same day conveyed the premises to his brother for $303.25. The complainant refused to receive the redemption money, and afterwards filed a petition alleging the foregoing facts, and that the proceedings to sell the land were irregular, and the sale void, and praying that the same be set aside, together with the decree for the deficiency, and for other relief. The prayer of the petition was denied upon the hearing, and complainant has appealed.

Complainant’s proposition appears to be that the sale was absolutely void, and therefore he has a right to have it set aside, regardless of his own participation in it. The grounds upon which it was claimed that the sale was void are:

1. Because no notice of sale was posted.

2. Because the sale was made by one not authorized by the decree.

3. Because the publication was commenced before the decree was entered.

4. Because the proceedings were not enrolled previous to the time that the sale was made.

Of these the last two are abandoned by counsel, as shown by his brief. Was there proof of notice of the sale? The report of the sheriff contains the statement that:

“Previous to said sale I caused notice thereof to be publicly advertised for six successive weeks, as follows, viz.: By causing printed notices thereof to.be fastened up at least six weeks prior to the day said premises were advertised to be sold, in three public places in the city of Detroit, county of Wayne and State of Michigan, where said premises were to be sold, an affidavit showing the fastening up of which notices is hereto annexed, marked ‘Exhibit A,’ and made a part of this, my report; and by ■causing a notice of such sale to be printed once in each week during the time preceding said sale in the Detroit Regal News, a public newspaper printed in said county of Wayne, as appears by affidavit following this report, marked ‘Exhibit B,’ which notice contained a description of the mortgaged premises.”

The affidavits referred to were not attached, and the statement quoted is the only evidence contained in the record of a publication or posting of notice of the sale. This was insufficient to justify confirmation, as has been held in the cases of Perrien v. Fetters, 35 Mich. 235, and New York Baptist Union v. Atwell, 95 Mich. 239.

In the case of Grand Rapids National Bank v. Kritzer, 116 Mich. 688, doubt was expressed of the right to ■question collaterally the return of an officer after confirmation. If it cannot be so questioned, it must follow that the absence of the affidavits is an irregularity, which does not render the sale absolutely void.- See Averill v. Jackson City Bank, 114 Mich, 20. In the case of New York Baptist Union v. Atwell, 95 Mich. 239, a title resting upon a deed was not sustained, in an ejectment case, for want of proper notice. In that case, however, the affidavits were attached, and failed to show a posting in the township as required by the statute. It is also true that the case may be said to have gone off on another and jurisdictional question. It is a general rule that confirmation of a sale is an adjudication of the regularity of the ; proceedings. See 12 Am. & Eng. Enc. Law (1st Ed.), p. 219; 17 Am. & Eng. Enc. Law (2d Ed.), p. 993, and cases cited.

Again, sales may be confirmed by the acts of the parties. The defendant, who, of all the parties, would seem to have the better right to complain, has acquiesced in this sale, and paid the money to redeem from it, thereby waiving any question of regularity of the sale. This case is novel in one particular; i. e., that it is the complainant and purchaser who seeks to set aside the sale, while the defendant asks to have it sustained.

It is claimed that the former should be estopped from questioning the proceedings, but, if an estoppel in pais may have such an effect in any case, some of the elements are lacking here. The defendant has not paid his debt. He has so managed as to pay $300, and get his property back by a redemption, and then by immediately deeding to his brother for a nominal consideration beyond the amount required to redeem has placed the property beyond reach. The brother can be protected by the return of his consideration, and we do not attach much importance to the fact that the complainant bid less than the property was worth. He is a foreigner by birth, and apparently supposed that he was obtaining a complete title, not subject to redemption, and it was but natural that he should try to buy at a low price.

The propriety of denying this relief by way of punishment is doubtful, especially as the defendant as well as the complainant would be benefited by a sale at an advanced price. It seems manifest that in punishing the complainant by denying this relief we are assisting the defendant to* escape a just liability by placing the property beyond the reach of an execution for the deficiency. There is and should be a large discretion in the circuit judge upon such questions as this, with which we would not lightly interfere, but the denial of relief in this instance dearly works injustice, and we may properly review and correct the decision.

It is said that we should refuse this relief for the reason that the complainant has not offered to bid a larger sum upon another sale, but, while this may reasonably be required where the defendant seeks to obtain a resale, no such ■ earnest of good faith is required here.

The order should be reversed, and the prayer of the petition granted, but without- costs of this proceeding. It should also be conditioned on his payment of the expenses of a resale.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    WASHINGTON LODGE, NO. 54, I. O. O. F. v. FRELINGHUYSEN.

    1. Injunction — Injury to Property —Nuisance—Adjoining Landowners.
    Injunction will not lie at the suit of an adjoining landowner to restrain the owner of an hotel building from constructing a passageway 14 feet above an alley, and to secure the removal of existing passageways connecting the defendant’s building, on the ground that by means of fans in the window of the hotel kitchen, opposite complainant’s building, disagreeable odors are forced into the alley and into the rooms of complainant, where it appears that irreparable damage to defendant’s property would result, even though the passageways may, to some degree, tend to retain in the alley the odors which are emitted from the kitchen when the wind is in a certain direction.

      2. Same—Passage Over Alley—Removal—Laches.
    Complainant’s president, at the time of the contemplated erection of an hotel, expressed his approval of its erection. Twelve years after its erection, including certain passageways over an alley, complainant sued to secure their removal, and to enjoin the construction of another. The additional passageway would create no greater interference with light or circulation of the air than the old ones. A decree for complainant would ruin the defendant’s property for hotel purposes. The defendant had obtained permission from the city for the construction of the passageways. Held, that laches barred relief if complainant was otherwise entitled to it.
    Appeal from Wayne; Brooke, J.
    Submitted October 18, 1904.
    (Docket No. 48.)
    Decided December 7, 1904.
    Bill by Washington Lodge, No. 54, Independent Order of Odd Fellows, against Elizabeth M. Frelinghuysen to restrain the obstruction of an alley. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    In 1835 and 1846 Edmund A. Brush platted certain lands in the city of Detroit, which plats were duly recorded. One of the blocks is surrounded by Randolph street, Macomb street, Brush street, and Monroe avenue. An alley 20 feet wide runs north and south through the block from Monroe avenue to Macomb street. The complainant is the owner of lot 10 and a part of lot 9, and the northerly 1)- feet of lot 11, all fronting on Randolph street, and abutting on said alley. The defendant is the owner •of the southerly 38)- feet of lot 11, on the corner of Randolph street and Monroe avenue, and also abutting on said alley. She also owns lot 12, on the opposite side of the alley, which lot fronts on Monroe avenue, and extends alohg the east side of said alley. Both parties derive title through mesne conveyances from Mr. Brush. The alleys •on the plats are not marked “alley,” and there is nothing to show the purpose for which they were dedicated, except their width and their location in reference to the lots, but they have always been used as alleys.

      The following is the plat referred to in the opinion:

    In 1891 and 1892 the defendant constructed upon lots 11 and 12 the Hotel Ste. Claire. The office, bar, and dining rooms, parlors and sleeping rooms, of the hotel, which is seven stories high, are on lot 11. The kitchen is on the second floor of the building, on lot 12. The third floor-of that building is also used for sleeping rooms. In order to connect the kitchen with the dining room of the hotel, a passageway was constructed over the alley, 14% feet above it. The third floors of the buildings are also connected in the same way; these passageways being directly above each other, 16 feet wide and 2 stories high. The complainant’s building is several stories high, with windows and doors facing out and upon the alley. The descriptions in the deeds are'as follows: “Lot No.— in Block No.— of the subdivision of the Brush Farm, according to the plat of record, in the office of Register of Deeds, in Liber —,” etc.
    While the defendant was advised that it was not necessary to obtain the consent of the common council, yet, in order to avoid possible litigation with the city, she did obtain the permission of the common council. It was not practicable for the defendant to construct this hotel without using both buildings and constructing these overhead passageways. No objection was made by the complainant to the construction of the passageways until the filing of this bill of complaint, April 16, 1903.
    February 24, 1903, the defendant obtained permission from the common council to construct another passageway over the alley, immediately south of the present passageways. The first passageways are within a few inches of the line of complainant’s property. The new passageway does note create any additional obstruction to light, air, or access. The purpose of the bill is to restrain the building of this new or enlarged passageway, and to secure the removal of the present ones. The case was heard upon pleadings and proofs, and the bill dismissed.

      George Gartner, for complainant.

      Fred A. Baker, for defendant.

      Rehearing denied January 30, 1905.

   Grant, J.

(after stating the facts). One ground of complaint is that by means of fans in the window of the hotel kitchen, opposite the complainant’s building, disagreeable odors are forced into the alley, and across it into the rooms of the complainant.

The covered passageway does not cause these unpleasant odors. If forcing them from the kitchen into the alley is a nuisance to the complainant or to others, it can easily be abated by the erection of a ventilator or some other means. The defendant may be compelled to abate the nuisance of obnoxious odors, but should not be compelled to take down this passageway, at irreparable damage to property, even though it may, to some degree, tend to retain in the alley the odors which are emitted from the kitchen, when the wind is in a certain direction. This ground of complaint can therefore be eliminated from the case.

The other ground for complaint is that the passageway interferes to some extent with light and the free circulation of air in the alley, thereby affecting the ventilation of the rear of the complainant’s building. The first story of its building is occupied as a dry goods store, whose occupant does not complain; the second story, for offices and rooms for society purposes in the rear. The third floor is used entirely for society purposes, and on the fourth floor there is a hall in front, committee rooms, and dining room, with a kitchen in the rear. In the rear are also situated toilet rooms, water-closets, and an ash chute. The upper stories are occupied mainly for meetings in the evening. In the winter time the windows are closed, and the ventilation is not affected by the passageway.

The complainant, through its officers, were fully informed of the character of this building at the time plans were made for its erection, and while it was being erected. Defendant, by petition, applied to the common council for permission to construct this passageway across.the alley, and permission was granted. It was placed at a sufficient height to permit the passage underneath of fire engines and all ordinary vehicles which could be used in the business of those whose property abuts upon the alley. The then president of the complainant expressed his approval of the erection of the hotel. It is manifest that the officers of the complainant desired its erection. It supplanted an old building three or four stories high. It was believed that it would increase the value of the complainant’s and other property in the vicinity, and that it did so is beyond question. It was then known that upon the land east of the alley was to be erected the hotel, with its offices, sleeping and dining rooms, and that across the alley was to be located the kitchen. There is no room for a kitchen in the building on the east of the alley. If compelled to tear down this passageway, it would mean virtually the abandonment of the property as a hotel, and cause large and, irreparable damage. It is not constructed for or adapted to any other purpose. Complainant’s property is assessed at 137,000, while that of the defendant exceeds in value several times that amount.

For 12 years the complainant kept silent and acquiesced in the erection and continuance of this structure. Only when the defendant was about to extend this superstructure one story in height on the south of the present structure did it make complaint. It evidently did not then make complaint because the additional structure proposed would create any additional injury, for it evidently does not. It creates no greater interference with light or the circulation of air than does the old one.

This case is controlled by the principle enunciated in Edwards v. Mining Co., 38 Mich. 49, where the court said:

“An injunction is not a process to be lightly ordered in any case. Where the effect will be to present to the owners of a valuable mill the alternative either to purchase complainant’s lands at his own price, or to sacrifice their property, any court having the power to order it ought very carefully to scrutinize the case and make sure that equity requires it. In theory its purpose is to prevent irreparable mischief. It stays an evil the consequences of which could not adequately be compensated if it were suffered to go on.” Citing many authorities.

In that case the mining company had erected a large ■stamp mill—probably not so expensive as the hotel property in question here—upon a stream running through Mr. Edwards’ land, or land that he purchased after the mill was erected. The stamp sand was carried downstream and deposited upon his land. It was held that equity would leave him to his remedy at law.

Lord Camden, in Smith v. Clay, Ambl. 645, decided in 1767, and more complete report in a note to Deloraine v. Browne, 3 Brown’s Ch. 633, in 1792, said:

“A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands where the party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive and does nothing.”

The complainant’s claim is that the defendant must now tear down her passageway, ruin her property for the purpose for which- it was constructed, and cause her irreparable damage, in order that it may obtain a little light and air. The proposition does not appeal with any force to a court of equity and conscience. Complainant should have spoken sooner. It will not be heard to now invoke the conscience of a court of equity, but will be left to its remedy, if it has one, in a court of law.

This disposal of the case renders it unnecessary to determine the question of the rights of abutting property holders in the alley. No other property holder is here complaining, and it does not appear that any other one can possibly be damaged by this passageway.

Decree affirmed.

The other Justices concurred.


text:
    BRADLEY v. PERKINS.
    1. Master and Servant — Apprentices — Discharge eor Disobedience.
    An apprentice is not guilty of willful disobedience, or such refusal to work, as justifies the master in discharging him, or imposing a penalty, where, on the foreman asking him to work extra hours at night, he told him that he did not want to work, because it was cold, on account of which his feet were troubling him, and that he should take the work to some one nearer a stove, and the foreman said nothing further, but got another man to do the work.
    3. Same—Contract—Infliction of Penalty.
    Where a contract of apprenticeship authorizes the master, in case of breach, merely to discharge the apprentice, and not to impose a penalty, the statement of the master to him that he could leave, or continue to work on an agreement to remain 80 days above the time provided in the contract, amounts to a discharge, which, not being warranted, justifies him in leaving, and suing for what is otherwise due under the contract on wrongful discharge.
    8. Same—Disobedience—Right to Determine.
    The provision in a contract of apprenticeship that if, for any acts of disobedience of the apprentice, the master shall deem it best to discharge him, half the apprentice reserve fund shall be forfeited to the master, does not give the master authority to determine what constitutes an act of disobedience, but merely to discharge in oase of such an act.
    Error to Kent; Perkins, J.
    Submitted October 20, 1904.
    (Docket No. 67.)
    Decided December 7, 1904.
    Assumpsit by Harry Bradley, by next friend, against Willis J. Perkins to recover an apprentice reserve fund. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    Plaintiff was apprenticed to the defendant to learn the machinist trade. The period of service provided for was three'years. Aside from the regular compensation for his services, the agreement provided that at the “expiration of the second year there shall be a total apprentice reserve fund of $72.00 in the possession of Perkins & Company in favor of the second party, subject to forfeiture in whole or in part, as herein specified.” It also provided for the payment of the $72 at the expiration of the third year of faithful service. The contract further provided that the ‘ ‘ party of the second part agrees on penalty of forfeiture of entire apprentice reserve * * * to remain and continue-in the service of said party of the first part for the full term of three years; and if for any acts of disobedience, said party of the first part shall deem it best to discharge said party of the second part, then the one-half of the-apprentice reserve * * * shall be forfeited.” It also provided that refusal to work the same number of hours-as other men in the shop are required to shall constitute’ just cause for dismissal.
    [ Dec..
    There was a valid requirement of the defendant with its employés, in cases where there was necessity of hurrying the work, that they should work overtime. Such work overtime was paid for, and applied upon the contract. Plaintiff had frequently worked, when requested, in accordance with such requirement. He continued in defendant’s service two years and ten months. He then left its-employ under circumstances detailed by him as follows
    “We were working overtime there, nights, erecting. They took the stove down in the machine shop, and it was very cold. It was along in the winter, and it was cold,, and I had been having trouble with my feet being chilled. I was troubled with my feet on account it was cold all the time. The shop was cold; and I thought, after I worked, ten hours, I didn’t want to work after that on account of the cold. The foreman came around with a job. He wanted me to work that night. I told him it was cold. I. didn’t want to work. I had trouble with my feet. To take the job to some one nearer the stove. And he didn’t say anything, but walked off with the job. He gave it to somebody there in the shop. He didn’t say anything to me about being angry. Said nothing to me about being punished the next day if I didn’t do it. I had trouble on and off three or four-weeks with cold feet—with chilblains. The stove had been down three days. There was no way of keeping-warm while I was there at the lathe attending to my work. I was not there afterwards, after they put up the stove. The superintendent came around the next morning. He wanted to know why I didn’t work. I told him on account it was so cold there, and I had trouble with my feet. He said that was no excuse at all. I told him I thought. it was. I stood around all day with cold feet, and they were all complaining around where I was of being cold. We had talked of different things. All I remember, then, he told me for penalty I would have to serve thirty days onto my time, or else quit. I thought a minute, and told him I didn’t like that very well, and I turned around and went out of the office, thought about it a little while, and then I went and gave in my time into the office. I took off my overalls and went to the office. I went to the superintendent first when I went into the office, and told him I would give in my time; that I was quitting on account of what he said. He didn’t say anything. He went to the office after the money, and he told the bookkeeper to give me my pay, and I told him I had some back money here. ‘No, sir;’he says, ‘you forefeit all that if you quit.’ I told him I didn’t think that way. I meant by ‘back money ’ the $72.”
    Plaintiff testified that immediately after this interview he went to Mr. Perkins, and Mr. Perkins declined to take him back, except upon the imposition of the penalty of thirty days’ more work.
    Defendant’s version of the transaction, as testified to by its foreman, Turner, is as follows:
    “I remember January 24th having some extra work to do, and asking him to stay and work with others. "We had some tool steel cams to make for a gas engine—three of them. They were to be bored and turned. The order came in that they were in a hurry for them. I think I had five men that I wanted to stay, that night. I think three or four remained altogether. I asked Harry Bradley to remain to bore and turn a cam. I showed him the piece of work about six o’clock, and explained what was to be done to it, and asked him to stay and do it. I showed him the cams, gave him the dimensions on them, told him what had to be done with them. He said he was not going to stay. I asked him to stay the same as I did the other men that stayed. One of the other men stayed. There were other men on their machines staying that night. He said he was cold. If he said anything about chilblains I did not hear it, or I don’t remember of hearing it. The first thing he said he was not going to stay. I told him they wanted him to stay pretty badly. I told him he had better stay and do the work, or he would have to settle with the superintendent for it. That was Mr. Houn. I didn’t listen to him then. I saw he was angry. I thought he was not going to stay. I turned around. I had some business with some of the other men, and I left him. He' seemed to be angry. I don’t remember the name of the man who did this piece of work that night. I don’t remember the man that did it. I remember I had a part of it done that night in this same room. * * * I do not remember any remark to me about giving the work to some other man. He might have said such a thing, but I don’t remember of it. I reported the refusal of Harry to work at that time to the superintendent in the morning.”
    The superintendent, Houn, testified as follows:
    “ Three men were required to remain for that extra work that night. It was the custom among our employés, when extra work was required, to have more or less of them remain for it. That was one of the rules of our shop. The next morning I came down, and met Mr. Turner, the foreman, at the office. I had a report from the foreman that Harry Bradley had refused to remain and work the night before. I called Mr. Bradley into the office. I asked him why he didn’t stay the night before. He said he had cold feet; it was cold. Well, I didn’t take much stock in that, and I told him that was a poor excuse for not staying; that he had stayed there all day and said nothing about it, and other men stayed there all day and said nothing about it. I told Mr. Bradley that it was customary for us to lay the boys off a week or ten days at a time, or try to get them to behave themselves, and that they seemed to come back feeling good-natured and cheerful, and said they wished they had another week. It seemed to be a good thing for them, but that we would adopt a new plan, by setting them back thirty days; and he hesitated about going to work. I told him he might go to work or quit; he could suit himself. He said that he couldn’t afford to lose any time, and I said, ‘ Then you better go to work,’ and I left the room, and told the boy to go out and go to work; but he could suit himself and quit. * * * About half or three-quarters of an hour after this conversation he [plaintiff] left his work, demanded his time, and I simply told him he could have it, and took him over to the bookkeeper and ordered his time paid.”
    This suit was brought to recover this apprentice reserve fund of $72. The court instructed the jury that, if the plaintiff was guilty of willful disobedience to the orders-of the foreman in refusing to work, he could not recover; but, if there was no such willful disobedience, he was entitled to recover. The court stated the question to the jury concisely thus:
    “ If you find from the evidence in this case that the plaintiff had good excuse for not working that night, as he claims, and so informed the foreman of the shop, who immediately procured another man in the shop to do the work which he was requested to do, the plaintiff is entitled to recover the full sum of $72. The question is, Was there just cause for imposing this additional requirement upon the plaintiff as to the term of his apprenticeship.”
    The jury rendered a verdict for the plaintiff.

      Clapperton & Owen, for appellant. .

      Smedley & Corwin, for appellee.
   Grant, J.

(after stating the facts). The contention of defendant is that plaintiff had abandoned his employ, had thereby forfeited his right to the apprentice reserve fund, and that the evidence shows conclusively an act of willful disobedience to the defendant’s foreman, which justified the position taken by the superintendent. We cannot concur in the view that an act of willful disobedience was conclusively established.

Plaintiff’s version is that when the foreman asked him to work he told him he did not want to work, because it was cold; that he had trouble with his feet; to take the j ob to some one nearer a stove; and that the foreman said nothing further, but got another man to do the work. The work was done by another employe, and there is no evidence that the defendant was injured by the action of the plaintiff.

If the jury believed the plaintiff, there was no such refusal to work as would justify the defendant in discharging the plaintiff or imposing a penalty for disobedience. Shaver v. Ingham, 58 Mich. 649, and authorities cited.

It is next contended that the plaintiff was not discharged, and that it was his duty to remain until the completion of his three years. The defendant, on the basis of a breach of the contract by plaintiff, told him that he could leave, or continue to work, upon the agreement to remain 30 days above the time provided in the contract. Defendant, under the contract, had no right to make such a requirement, even if he would have been justified in discharging him. The plain inference from the language is, “You are discharged, but you can continue in our employ if you will stay thirty days longer than the original contract provides.” In other words, it required the making of a new contract. Plaintiff’s acceptance would have annulled the former contract and substituted the other in its place. This he was under no obligation to do, and was justified in leaving. Trawick v. Railway Co., 68 Ill. App. 156; People’s Co-operative Ass’n v. Lloyd, 77 Ala. 387; Whitmarsh v. Littlefield, 46 Hun, 418.

It is also urged that the defendant under the contract was entitled to determine for himself the question of willful disobedience. This is based upon the following provision of the agreement:

“ If for any acts of disobedience of said party of the second part said party of the first part shall deem it best to discharge said party of the second part, then one-half of the apprentice reserve * * * shall be forfeited to said first party.”

This provision does not give the defendant the authority to pass upon what constitutes an act of disobedience. It means that, when an act of disobedience has been committed, the defendant might discharge him should he deem it best. Upon this point, see Jones v. Transportation Co., 51 Mich. 539; Sloan v. Hayden, 110 Mass. 141.

Such arbitrary power must be evidenced by very clear language; but there is nothing in this contract which justifies the conclusion that it was lodged in the defendant.

The judgment is affirmed.

The other Justices concurred.


author: Carpenter, J.

text:
    FULLAGAR v. STOCKDALE.
    1. Deeds—Construction—Estate Created.
    A deed to a remarried widow, her husband, and her heirs, both she and her husband at the time having children by former marriages, cannot be construed to vest the entire estate in the husband and wife as tenants by the entirety.
    2. Same.
    A deed may be construed by considering its language, the surrounding circumstances, and the situation of the parties.
    3. Rule in Shelley’s Case—Abrogation.
    The rule in Shelley’s Case has been abrogated in this State by the statute, 3 Comp. Laws, § 8810.
    4. Deeds—Construction—Heirs—Children.
    Where the father of a remarried widow granted land to her husband, herself, and “her heirs,” and to the heirs and assigns of “the party of the second part,” and both she and her husband at the time had children by former marriages, the word “heirs” must be construed to mean ‘.‘children,” and the deed to convey to her and her husband as one grantee, and to her two children, each an undivided one-third of the land.
    5. Same—Children—Conveyance oe Interest.
    A conveyance by one of the children, during the life of his mother, of his interest to his stepfather, vested in the stepfather an undivided one-third of the land.
    6. Same—Practical Construction.
    After a conveyance to a remarried widow, her husband, and her children by her first husband, one of the children conveyed his interest in the land to his stepfather. Held, that the failure of the other child to question the mother's right to live on the property during her lifetime did not constitute such a practical construction of the deed between the parties as conveying the entire estate to the husband and wife as tenants by the entirety as to authorize that child to claim the interest of her brother through a deed executed by him to her after his mother’s death.
    Appeal from Allegan; Padgham, J.
    Submitted October 20, 1904.
    (Docket No. 89.)
    Decided December 7, 1904.

      Bill by Sarah Fullagar and Anthony Weber, administrators of the estate of Harriet Gibbs, deceased, against David Stockdale, administrator of the estate of William Gibbs, deceased, Sarah Beach, and John F. Gibbs, to remove a cloud from the title to certain land. From a decree for complainants, defendants appeal.
    Reversed.

      Fidus F. Fish, for complainants.

      G. B. Wilkes, for defendants.
   Carpenter, J.

February 21, 1867, John Pierce and Olive Pierce, of the first part, conveyed to “William Gibbs, Harriet Gibbs, and the heirs of said Harriet Gibbs,” of the second part, and to the “heirs and assigns” of the said party of the second part, the land in controversy in this suit. Said William Gibbs and Harriet Gibbs, of the second part, were husband and wife. Said Harriet Gibbs was the daughter of the parties of the first part. She was at the time of this conveyance the mother of two infant children by a former husband, namely, Sarah Yates (now Fullagar, the first-named complainant) and Frank Yates. After the conveyance was made there was born to William and Harriet a son, namely, defendant John F. Gibbs.

In 1878, by quitclaim deed, Frank Yates conveyed his interest in said land to said William Gibbs. William Gibbs died in 1888, leaving a will, which was afterwards probated, by which he devised a life estate in said property to his widow and the fee to his son, said John F. Gibbs. Harriet Gibbs continued to live on said property with her daughter Sarah until 1902, when she died intestate. After such death said Frank Yates, by quitclaim deed, transferred his interest in said property to his sister, the first-named complainant. This bill was then filed to remove the cloud cast upon complainants’ title by the deed from Frank Yates to William Gibbs and by the probate of the latter’s will.

Complainants contend that by the conveyance in question William and Harriet Gibbs acquired the entire title of the land as tenants by the entirety, and that this title vested in Harriet as the survivor, and that, therefore,. William Gibbs acquired no interest by the conveyance from Frank Yates.

The first two named defendants contend that the deed conveyed a one-third interest to William and Harriet Gibbs as tenants by the entirety, and a one-third interest to each of the latter’s children, namely, Sarah and Frank, Yates, and that, therefore, the deed from Frank Yates to William Gibbs transferred an undivided one-third interest in the property.

The court below granted complainants relief, and the defendants just referred to appeal to this court.

The question presented by this controversy depends, as conceded, upon a proper construction of the deed. For the purpose of enabling the court to properly construe such deed, complainants proved in the lower court that when it was executed there was living a child of said grantee, William Gibbs, and that ft the object of making the deed was that it would cut off this child and insure the property to Harriet Gibbs’two children.” The grantors “wanted to cut off William Gibbs’daughter by his first marriage. * * * They wanted Frank Yates and Sarah Yates to have that forty acres after Harriet and William Gibbs were dead.” The witness who gave this testimony (and it was all given by one witness) says that he “ don’t recall there was any talkthat, “if Mrs. Gibbs should have any other children, they [the grantors] wanted them cut off.” This evidence warrants the conclusion that the grantors intended to convey an estate to William and Harriet Gibbs until the death of the survivor, and to convey the remainder to the children of said Harriet.

If we give effect to this testimony—and I think to do so we would violate the principle which prevents the legal effect of an instrument being changed by parol testimony —(see Morrill v. Morrill, ante, 112), it would not support complainants’ contention that the deed should be construed to vest the entire title in William and Harriet Gibbs as tenants by the entirety; for that construction would give the children of Harriet nothing, and in the event of William surviving his wife it might all pass to the child whom the grantors desired to exclude. It may also be said that, if the conveyance had been so drawn as to carry out this claimed intention of the grajitees, it would have immediately vested in said Frank Yates an undivided interest amounting to at least one-third. While Frank Yates could not have the possession of this property until the death of William and Harriet, he nevertheless (see section 8795, 3 Comp. Laws) would have had a vested remainder, which he could convey, and which, therefore, was conveyed by him to his stepfather, William Gibbs.

We reach the same conclusion by a proper construction of the deed; that is, by ascertaining its meaning by considering, as we certainly, can, the language, the surrounding circumstances, and the situation of the parties. See French v. Carhart, 1 N. Y. 96; Coleman v. Beach, 97 N. Y. 545; Seymour v. Bowles, 172 Ill. 521.

The grantees named in the deed are “William Gibbs, Harriet Gibbs, and the heirs of said Harriet Gibbs.” The entire title is transferred to these grantees and to their “heirs and assigns.” Complainant asks us to say that, according to this language, nothing was transferred to the heirs of Harriet Gibbs. She asks us to construe this conveyance as if they were not mentioned as grantees therein. It is true that there was a rule of the common law, called the “Rule in Shelley’s Case,” by which, if an estate was granted to one for his life, and by the same instrument the remainder was granted to his heirs generally, or to the heirs of his body, the word “ heirs’’was a word of limitation, and not of purchase. Frazer v. Chene, 2 Mich. 90. That is, the word “heirs ” simply indicated the character of the estate transferred to the grantee. Under that rule the heirs of the grantee obtained nothing in such a conveyance. If this rule ever could have been used in construing the deed in question—and this I doubt—it is sufficient to say that it has been abrogated by statute in this State. See section 8810, 3 Comp. Laws. It is also true that the word “ heirs ” has a technical legal meaning, and as such it describes those who succeed to one’s ownership of real estate on his death. In that sense a living person has no heirs. And therefore, if the word ‘ ‘ heirs ” is given that meaning in the deed under consideration, the .grant to the heirs of Harriet Gibbs is meaningless, and transferred nothing. But the word “ heirs ” is often used as synonymous with “children;” doubtless because the latter are heirs apparent.

There is presented to us the alternative between saying that the grantors intended nothing when they granted the •estate to the heirs of Harriet Gibbs, or of saying that they intended the estate should pass to the children of Harriet Gibbs. There is no difficulty in making a choice. We •can say, as this court once before said (see See v. Derr, 57 Mich. 372):

“ As Charles Derr [Harriet Gibbs] is a party to the deed, and therefore shown by it to be living, the word ‘ heirs ’ must be construed as used in its popular, and not uncommon, sense, as ‘children,’ and meant toso describe them.”

See, also, Fountain County Coal & Mining Co. v. Beckleheimer, 102 Ind. 76; Tucker v. Tucker, 78 Ky. 503; Heard v. Horton, 1 Denio, 165; Heath v. Hewitt, 127 N. Y. 166; Fanning v. Doan, 128 Mo. 323; Seymour v. Bowles, 172 Ill. 521; Love v. Francis, 63 Mich., at page 193. Contra, Booker v. Tarwater, 138 Ind. 385.

We conclude,, therefore, that the conveyance in question transferred to Sarah Fullágar, to Frank Yates, and to William and Harriet Gibbs (these, as husband and wife, are to be considered as one grantee only) each an undivided one-third of the land in controversy. See Tucker v. Tucker, 78 Ky. 503; Anderson v. Tannehill, 42 Ind. 141; Hulett v. Inlow, 57 Ind. 412; Hardenbergh v. Hardenbergh, 10 N. J. Law, 45; Barber v. Harris, 15 Wend. 615; Johnson v. Hart, 6 Watts & S. 319. As the interest of Frank Yates was duly conveyed to William Gibbs, the latter died possessed of such interest.

We cannot agree with the learned circuit judge that the parties in interest placed upon this deed a practical construction in harmony with his decision. It is true that no one during Harriet’s life disputed her right of occupancy. But the conveyance of the interest of Frank Yates to William Gibbs, and the latter’s will, was a denial that the entire estate was held by the husband and wife as tenants by the entirety.. It may also be said that after this conveyance was made the parties in interest acted precisely as they would have acted if they intended to recognize its validity and to give it full legal effect. After that time the only party having authority to question the right of possession of William and Harriet was complainant herself. Surely, her failure to question it does not now enlarge her rights. Indeed, it does not appear that she was called upon to question it, since during a portion of this time she and her husband occupied the land as tenants of her mother.

It follows that, in our judgment, the decree of the lower court was erroneous, and that decree must therefore be reversed, and a decree entered dismissing complainants’ bill, with costs.

The other Justices concurred.


author: Gbant, J.

text:
    GREGORY v. DETROIT UNITED RAILWAY.
    1. Street Railroads—Negligence—Construction of Track— Rails Above Street Surface—Overturning of Vehicle— Prior Accidents.
    In. an action against a street-railway company for injuries from the overturning of plaintiff's cutter in striking the rails of defendant’s track, which were alleged to have been negligently left above the surface of the street, where the sole question was the condition of the street, and whether its condition was negligence, evidence of prior accidents of a similar character at the same place was inadmissible.
    2. Same—Instructions—Credibility of Witnesses.
    An instruction that if the jury believed that any witness for defendant testified under a fear of losing his employment, or a desire to avoid censure, or fear of offending, or a desire to please his employer, such fact might be considered in determining the weight to be given to his testimony, was erroneous, when not coupled with any caution that the jury would not be justified in drawing unfair inferences simply because the witnesses were employés, and there was nothing in the testimony itself or in the manner of the witnesses to justify the conclusion that the testimony was tainted in the manner suggested by the instruction.
    3. Same—Evidence—Condition of Track—Sufficiency.
    Where none of the witnesses for the plaintiff who testified as to the condition of defendant’s track where the accident occurred had made such an examination as entitled their testimony to much weight, hut, on the contrary, eight for the defendant testified to a careful examination, and that it was in good condition—two of them being officers of the village in which the accident occurred—a verdict for plaintiff was contrary to the clear weight of the evidence.
    Error to Oakland; Smith, J.
    Submitted October 21, 1904.
    (Docket No. 78.)
    Decided December 7, 1904.
    Case by Allen J. Gregory against the Detroit United Railway for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.
    Defendant’s road runs through the village of Oxford. The main street (Washington) extends north and soúth through the village. The track is laid in the center of the street. On reaching Oxford street the track turns by a very sharp curve from Washington into Oxford street. A guard rail is placed between the main or running rail near the inner line of the curb, and fastened to the inher rail by a cast-iron plug placed between the guard and main rails. A bolt passes through both rails, and the plug securely fastens all together. The guard rail was tr-inches from the main rail, and a half inch higher. This device answers the same purpose as grooved rails and curves in paved streets. The guard rail is necessary for the operation of the cars.
    Plaintiff, on February 10, 1903, was riding in his cutter, and crossed the track where was located this guard rail. He claims that the runners of his cutter struck the inner or main rail, and that his cutter was thereby overturned and he was injured. This suit is brought to recover damages. The .negligence charged consists in leaving the main rails above the surface of the street.
    The plaintiff recovered verdict and judgment.

      Brennan, Donnelly & Van De Mark, Frank E. Jenkins, and James H. Lynch, for appellant.

      Kinsman & Arnold, for appellee.
   Gbant, J.

(after stating the facts). The first assignment of error arises upon the admission of testimony. Evidence was received, under objections and exception, to show prior accidents of a similar character at, this same place. Such testimony is only admissible to show notice and knowledge of the defects. Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537; Corcoran v. City of Detroit, 95 Mich. 84; Alberts v. Village of Vernon, 96 Mich. 549.

Defendant’s counsel upon the trial admitted that the condition of the rails and street at this point was the same as it had been from the 1st of December previous. The sole question, therefore, was the condition of the street, and whether its condition was negligence. Proof of prior accidents was immaterial, and would naturally tend t.o prejudice the defendant.

Error is assigned upon the following instruction:

“ If you believe that any of the witnesses testified under a fear of losing his employment, or a desire to avoid -censure or a fear of offending, or a desire to please his employer, then such fact may be taken into consideration in determining the degree of weight which ought to be .given to the testimony of such witnesses.”

This charge could have been applicable to none other than the witnesses for the defendant. We find nothing .in this record to justify this instruction. The language is identical in substance with that which was condemned by this court in Marquette, etc., E. Co. v. Kirkwood, 45 Mich. 51. In that case the court instructed the jury that, if they found it necessary to consider the testimony given by the agents and employés of the railroad company, they should bear in mind the interest they have in protecting their company and shielding themselves from blame. The reason for condemning such instructions is found on pages 53, 54, and we need not restate it here. 'The effect of such an instruction is apparent in this case, for the overwhelming weight of the evidence on the part •of the employés of the defendant, who put down the planking at this place and who examined it, shows that the planking was flush with the main rails; and, if it was, it is conceded that there is no liability. Possibly counsel may not commit error in criticising witnesses upon this ground, but that is a very different thing from the judge calling attention to it in the language of this instruction. The effect of such an instruction, standing alone, is to permit the jury to set aside the testimony of the most reliable and truthful witnesses simply because they are employés. This instruction was not coupled with any caution that the jury would not be justified in drawing unfair inferences simply because they were employés. This instruction is very different from that given in McDonell v. Boom Co., 71 Mich. 61, 66, and Lovely v. Railroad Co., 137 Mich. 653.

In order to justify the above instruction, there must be something in the testimony itself or in the manner of the witness to justify the conclusion that the witness’ testimony is tainted by fear of losing his employment, of offending, or a desire to avoid censure, or to please his employer. In cases where corporations or individuals doing a large business are litigants, the great majority of the witnesses are employes, and, when instructions of this kind are deemed proper, they should -be coupled with the caution above indicated.

In Lovely v. Railroad Co. this court cautioned the jury that “no inference unfair to men should be drawn because they are in the employ of the railroad company.”

Defendant made a motion for a new trial on the ground that the verdict was contrary to the clear weight of the evidence. None of the witnesses for the plaintiff who testified as to whether there was any planking there, or as to its condition if there was, made such an examination as entitled their testimony to much weight. On the contrary, eight for the defendant testified to a careful examination, and that the planking was flush with the top of the rails and in good condition. Two of these witnesses were village officers. The case falls within Cole v. Railway Co., 132 Mich. 122; Brassel v. Railway Co., 101 Mich. 5; Whipple v. Railroad Co., 130 Mich. 460. The court should have granted the motion.

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Carpenter, J. Hooker, J.

text:
    DICK v. SUPREME BODY OF THE INTERNATIONAL CONGRESS.
    1. Beneficial Associations—Tribunals—Hearings—Objections to Evidence—Waiver.
    Where, at the hearing of his claim before the tribunal of a beneficial association, the beneficiary objects to the introduction of certain evidence, and his objection is overruled, he cannot be held to have waived his objection on appeal by not appearing, where he is told that appearance is unnecessary •and that his claim will be properly presented and considered in his absence.
    '3. Same—Hearings—Rules of Evidence.
    The validity of a decision of the tribunal of a beneficial association is not lessened by the circumstance that technical rules for the admission of evidence were disregarded. Within the limits of common fairness such tribunals may prescribe their own rules of evidence.
    3. Same—Witnesses—Competency—Physicians.
    Section 10181, 3 Comp. -Laws, forbidding the disclosure by physicians of information acquired in attending patients, applies as well to hearings before the tribunals of beneficial associations as to proceedings in the courts of the State.
    4. Same—Tribunal of Order—Conolusiveness of Decision.
    The decision of the supreme tribunal of a beneficial association, on appeal by a beneficiary, is not conclusive, though so provided by its by-laws, where the tribunal receives and acts upon the testimony of a physician admitted in violation of § 10181, 3 Comp. Laws.
    5. Same—Assailing Conolusiveness—Law and Equity.
    The conclusiveness of an adjudication of the supreme tribunal of a beneficial association as to liability on a membership certificate may be questioned, not only in equity but in a court of law, when set up as a defense to an action on the eertifi- ■ cate.
    Hooker and Grant, JJ., dissenting.
    Error to Wayne; Mandell, J.
    Submitted October 31, 1904.
    (Docket No. 75.)
    Decided December 7, 1904.
    Assumpsit by Emma C. Dick against the Supreme Body of the International Congress on a policy of insurance. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.
    . W. O. Howard, for appellant.

      Walker & Spalding, for appellee.
   Carpenter, J.

Plaintiff’s husband, John A. Dick, •died July 10, 1901. At that time he was a member of defendant order, and, as such, his life was insured for the sum of $1,000. Plaintiff was his beneficiary, and she brought this suit to recover said insurance. She obtained, a verdict and judgment in the court below.

Defendant contends that a verdict should have been directed in its favor, because this controversy had been determined in its favor by the tribunals of its order, and that such determination was final. The question raised by this claim is the only one we are called upon to consider. The facts essential to an understanding of this, question are these:

The by-laws of defendant provide that the supreme> board of trustees—

“ Shall pass on all death claims. * * * If, in its. judgment, any such claim is not a valid one, they shall notify * * * the beneficiary, * * * and fix the time * * * when the claimants or their attorneys may appear before the supreme board of trustees * * * and present such evidence, either orally or by affidavit, as they may have to establish the justness of said claim, and the said supreme board of trustees shall try, hear, and decide upon the justness and the validity of such claims, and their decisions shall be binding * * * unless an appeal is taken to the supreme body. * * * It, the supreme body, shall have the power when an appeal is made * * * to decide as to the validity of all death claims, * * * and its decisions shall be final and binding upon every member and his beneficiaries. No suit at law or equity shall be commenced or maintained by any member or beneficiary against the supreme body.”

Defendant’s board of trustees, suspecting that decedent had obtained his insurance by making false statements respecting his condition of health, notified plaintiff that, in their judgment, her claim was not valid. A hearing was had before them, and the claim rejected. On this hearing plaintiff presented several affidavits tending to prove the validity of her claim. The only other testimony was the statement of defendant’s general manager. This witness narrated a conversation between himself and decedent’s physician in which the latter said that deceased came to him in January, 1900, and stated that he became sick in February, 1899, and had lost 50 pounds in this interval. This statement, which tended to prove that the insurance had been obtained by false statements, was objected to as incompetent, hearsay, and privileged, but it was nevertheless received and acted upon. From this decision rejecting her claim plaintiff appealed to the defendant body. Neither she nor her counsel was present when her case was there considered. They were told it was not necessary for them to be present, and led to believe that the case would be heard on substantially the same testimony as that introduced before the board of trustees. And it was so heard. The affidavits of plaintiff were laid before the appellate tribunal, but, instead of the hearsay statement of the physician, his affidavit stating substantially the same facts was introduced. That tribunal rejected plaintiff’s claim.

Can we say, as a matter of law, that this determination was binding upon plaintiff ? If we can, the judgment of the lower court should be reversed. If we cannot, it should be affirmed.

Defendant not only used the physician’s affidavit as testimony, but, it is to be inferred, based its decision solely upon such affidavit. Section 10181, 3 Comp. Laws, prohibits the use of such testimony on the ground that it violates a sacred confidential relation. If plaintiff had a right to invoke this law, it cannot be said that she waived that right. Through her counsel she objected to this testimony in the lower tribunal, and defendant’s officers had no right to assume that she withdrew this objection in the appellate tribunal. It may therefore be inferred that defendant willfully introduced the testimony under consideration, and upon such testimony rendered a decision adverse to plaintiff. From this conduct, can any inference unfavorable to the validity of the adjudication pronounced by defendant be drawn ?

It is clear that the validity of adjudications of this character is not lessened by the circumstance that technical rules for the admission of evidence are disregarded'. See Derry v. Great Hive L. O. T. M. M., 135 Mich. 494, Barker v. Great Hive L. O. T. M. M,., 135 Mich. 499. It is likewise true that within the limits of common fairness such tribunals may prescribe their own rules of evidence. Derry v. Great Hive L. O. T. M. M., Barker v. Great Hive L. O. T. M. M., supra. And I think it is also true that no error of such tribunals in admitting testimony will' be considered by a court unless such error affected its decision. But it must not be supposed that such tribunals are above the lawmaking power of the State. They have no right to violate any law which that power prescribes for their guidance. And if such violation results in their depriving a claimant of the hearing to which he is lawfully entitled, their adjudications are of no legal effect. See Rose v. Supreme Court, Order of Patricians, 136 Mich. 577.

Did defendant violate a law which was prescribed for its guidance when it admitted in evidence the affidavit in question ? The legislature has said:

“No person duly authorized to practice physic or surgery shall be allowed to disclose any information which he may have acquired in attending any patient.” Section 10181, 3 Comp. Laws.

If this statute applied to its proceedings, defendant flagrantly violated it. Did it apply ? The proceedings were in their nature judicial, and there can be no doubt that the legislature had power to prescribe rules which it was defendant’s duty to observe. Did the statute prescribe such a rule ? “ The statute is one passed for the sole purpose of enabling persons to secure medical aid without betrayal of confidence.” See Grand Rapids, etc., R. Co. v. Martin, 41 Mich. 671. Did the legislature, in passing this statute, which prescribes a rule of evidence to be observed in judicial proceedings, intend to permit this con' fidence to be betrayed in any judicial proceedings which it. had the power to regulate ? To impute any such intention to the legislature is to assume that it designed to defeat its manifest purpose. There is nothing in the statute to limit its operation to any particular judicial tribunal or to any particular class of judicial proceedings. We must therefore assume that it was intended to extend to all proceedings of a judicial character which the legislature had the power to regulate. This statute was, therefore, in my judgment, violated when the physician’s affidavit was used as testimony. See Fennimore v. Childs, 6 N. J. Law, 386; Gallagher v. Kern, 31 Mich. 138.

Did this violation of the statute deprive plaintiff of the hearing to which she was lawfully entitled ? Plaintiff was entitled to the hearing prescribed by defendant’s by-laws. The construction which defendant itself placed on these by-laws—and, in my judgment, their proper and necessary construction—required it to dispose of controversies upon testimony of some character produced before it at a time and a place where plaintiff had an opportunity of being heard. We have held, in accordance with fundamental constitutional principles, that an adjudication made by such tribunal is not binding upon a party who is denied the opportunity of being heard. See Rose v. Supreme Court, Order of Patricians, supra.

The most obvious and essential rights secured to claimant by the opportunity of being heard are these: The right to present testimony, and the right to hear and meet testimony presented against her. If her claim was rejected upon testimony obtained when she was not present, and of which she knew nothing, we should not hesitate to say that she was denied the opportunity of being heard, even though permitted to introduce testimony tending to support her claim. In such a case it would be clear that, though given a hearing in form, claimant was deprived of all advantage of such hearing, and was therefore denied the hearing to which she was lawfully entitled.

Is it not equally clear that when defendant rejected plaintiff’s claim because of testimony admitted against objection, and which the law in positive terms forbade it to consider, that there was a denial of the hearing to which plaintiff was lawfully entitled ? I think it is. Plaintiff was deprived of all the advantages of introducing testimony when that testimony was disregarded by defendant and her case decided upon testimony which it had no lawful right to consider. It was defendant’s duty to observe the law prohibiting the use of this testimony. It was plaintiff’s right to have that law observed. This right and this duty were just as clear and obvious as if they had been expressly stated in the by-law which provided for the hearing of plaintiff’s claim. If such by-law had in express terms provided that this law excluding the physician’s affidavit should be observed, no one would for a moment maintain that a determination by defendant in violation of such provision was binding upon plaintiff. Defendant could not insist that such determination complied with the contract which it violated. The only distinction between the supposed case and the actual one is this: In the supposed case the provision for the observance of the law is expressed; in the actual case, that provision is necessarily implied. This distinction affords no ground for the application of a different legal principle. I think, therefore, that plaintiff was denied the hearing to which she was entitled, and was therefore not bound by defendant’s adjudication.

I think it may also be said that the statute in question not only forbade the use of the physician’s affidavit as testimony, but by necessary implication forbade all judicial tribunals (including the judicial tribunal of defendant) from determining controversies (at least without the consent of parties) upon such testimony. And the law will not permit defendant to retain the unlawful advantage obtained by violating its prohibitions.

If defendant’s tribunal had been a court of law, its determination could have been successfully assailed. It is true it could have been assailed in only one way: That is, by review before an appellate constitutional tribunal. Defendant’s adjudication cannot be so reviewed, and it must, therefore, be open to some other kind of an attack, or such tribunals have an authority not possessed by courts established by the Constitution.

It is contended by defendant that the conclusiveness of its adjudication may be assailed only in a court of chancery. But I think it is settled by our decisions that it can be assailed, when it is asserted as a defense, in a proceed^ ing at law. See Rose v. Supreme Court, Order of Patricians, supra; Lamson v. City of Marshall, 133 Mich. 250.

To uphold the binding effect of the adjudication made by defendant, we must declare either that the legislature intended to except the judicial proceedings of defendant from the operation of a law which, according to its obvious and natural construction, applies to all judicial proceedings, or we must declare that the defendant has the right, which no other person or body of persons in this State has, to violate at will a constitutional legislative enactment. I think that neither of these alternatives can be accepted, and that the judgment of the court below should therefore be affirmed, with costs.

Moore, C. J., and Montgomery, J., concurred with Carpenter, J.

Hooker, J.

(dissenting). The plaintiff’s husband was a member of the order of the Supreme Body of the International Congress, a mutual benefit association, having been admitted upon an application containing the following agreement:

“This application and the laws of the supreme body now in force or that may hereafter be adopted, are made a part of the contract between myself and the supreme body, and I for myself and my beneficiary or beneficiaries, agree to conform to and be governed thereby.”

The certificate issued upon said application was for $1,000, payable to himself and wife as beneficiaries, and was expressly made subject “to the rules, regulations, and by-laws of the defendant then in existence, or which may thereafter be adopted and subject to the conditions, limitations, and agreements made by the insured in his application for membership.”

Before and at all times after he became a member the following by-law, numbered section 54, was in force:

“The supreme board of trustees shall have full power to suspend a benefit member from all of the benefits of the order whenever a complaint is made by the commissioner, record keeper, or finance keeper of a subordinate assembly, or by a deputy supreme commissioner, or deputy grand commissioner, that such member has obtained his membership by false representations' as to his age, physical condition, habits, or occupation at the time of his admission, or who may after his admission become addicted to the use of opium or narcotics, or form habits which may injure the health or endanger the life of said member. Such suspension shall be binding on the member without a formal trial until the member has by evidence convinced the supreme board of trustees that such complaint has no foundation, which he must do within thirty days from the date of notice mailed him by the supreme record keeper of the filing of such complaint. The findings and decisions of the supreme board of trustees in all such cases will be final. The supreme board of trustees may reinstate a member so suspended, if at any time it may appear that the cause for such suspension has been removed.”

Under this he was suspended March 29, 1900, and on April 27, 1900, he was reinstated on furnishing an affidavit of good health. He died of cancer in July, 1901. Sections 55 and 102 of the by-laws are as follows, viz.:

“Sec. 55. The supreme board of trustees shall pass on all death claims arising from the death of a member holding a supreme body benefit certificate, and on all disability claims. If in its .judgment any such claim is not a valid one, they shall notify the claimant of disability benefits, or the beneficiaries or beneficiary of the deceased member thereof, and fix a time which shall not be less than sixty nor more than one hundred and twenty days from the date of such notice when the claimants or their attorneys may appear before the supreme board of trustees, at the office of the supreme record keeper, or some other place tó be designated by the supreme board of trustees, and present such evidence, either orally or by affidavit, as they may have to establish the justness of said claim, and the said supreme board of trustees shall try, hear, and decide upon the justness and validity of such claims, and their decision shall be binding on such claimants unless an appeal is taken to the supreme body. The notice of such appeal from the decision of the supreme board of trustees must be filed with the supreme record keeper within sixty days thereafter. The decision of the supreme board of trustees, unless an appeal is taken to the supreme body, in all such < cases shall be final, and no suit at law or in equity shall he commenced or maintained by any member or beneficiary against the supreme body.”

“Sec. 102. It (the supreme body) shall have the power, when an appeal is made under the laws of the order from the action or findings of the supreme board of trustees, to decide as to the validity of all death claims, or any other claim which a member may have against it, and its decision shall be final and binding upon every member and his beneficiaries, and no suit at law or in equity shall be commenced or maintained by any member or beneficiary against the supreme body.”

Proofs of death were seasonably made, and the claim was disallowed by all of the tribunals of the order. Thereupon the plaintiff brought this action upon the con- , tract in a court of law, and recovered a verdict and judgment for $1,110.90, and costs, from which judgment the defendant has appealed.

The real question in this case has to do with the efficacy of the rule contained in sections 55 and 102 of defendant’s by-laws, by consenting to be bound by which the deceased took his insurance, upon an agreement that the decisions of the order should be binding upon him and his privy, the beneficiary, whomever might ultimately he such, and that no suit at law or in equity should be commenced or maintained upon the claim.

It would seem to be a very simple proposition that when one made such an agreement he would be bound by it, and could under no circumstances bring an action at law or in equity against the association, if such agreement was valid. That such an agreement is valid is beyond question, and is admitted in this case. It is claimed, however, that the plaintiff is not bound by it under the circumstances of this case, and that in the face of such agreement the beneficiary may still resort to a court of law to enforce a claim upon a policy. Before entering upon an inquiry as to this question, we will set forth the facts upon which counsel predicate their claim that the case is exceptional.

Upon the presentation of the claim of loss the trustees gave the notice provided for in section So, and upon the hearing the supreme board of trustees rejected the claim. At said hearing the plaintiff was represented by counsel. Counsel for plaintiff assert that there was evidence tending to show that deceased was in good health down to 1899. Deceased’s application was also introduced, stating that he had never had cancer; also the proofs of loss showing that he died of cancer, and had been ill for two years; also his affidavit, made April 14, 1900, stating that on the date of his examination for insurance, and up to July, 1899, he was in sound bodily health, to the best of his knowledge and belief, and upon which affidavit he was reinstated. It is stated further that the only other testimony of any kind was a statement by Mr. Harris, defendant’s general manager, that he saw deceased’s physician, one Robbins, who said that deceased came to him first in January, 1900, and stated that he began to be sick in February, 1899, and lost SO pounds from that time to the time of his consulting said physician. This statement was objected to as incompetent, and hearsay, and privileged, and that, therefore, the board had no right to consider it.

Upon the appeal the affidavit of Dr. Robbins, who was the physician referred to, was introduced, in which he made oath to the conversation stated by him to Harris. Plaintiff’s counsel was not present. He had correspondence with the defendant about it, as follows:

“J. 0. Becraft,

“ Dowagiac, Mich.

ilDear Sir: Yours of yesterday at hand with reference to the appeal of Mrs. Dick under Certificate 3,090. I am entirely ignorant of the method of procedure in these appeal matters, and I assume that the matter will be taken up on affidavits and showing already on file before your Board.

“Will you kindly advise me if I am correct in that respect, and also whether it would be necessary or advisable for either Mrs. Dick or myself to be present. ”

“Hon. J. B. Whelan, Justice,

“Detroit, Mich.

“Dear Sir: Your letter to J. O. Becraft, Supreme Record Keeper of the International Congress, has been sent by him to me for reply. You will recollect that I am one of the trustees of the organization. The affidavits and showing made before the Board of Trustees can be used on the appeal; either party can present any additional evidence they desire. It will not be necessary for you or Mrs. Dick to be present unless you desire to be. I will see that the matter of the appeal is submitted to the Supreme Body whether you are there or not if you so -desire.”

“Hon. W. G. Howard.

“Dear Sir: In reference to the Dick claim, I think we will leave it to you to present to the Supreme Body as you suggest in yours of the 13th inst. You all know the facts in the matter, and I could do no good by coming out.

“ Please have the Secretary notify me of the action taken by the Supreme Body and oblige.”

“John B. Whelan,

“ Detroit, Mich.

“Dear Sir: In further answer to your favor of July

'9th, 1902, filing appeal in the claim of Emma Dick, beneficiary under Certificate No. 3,090, I beg to advise you that the Biennial Meeting of the Supreme Body will will be called to order at 1 p. m. Tuesday, March 3rd, 1903. Yours truly,

“J. O. Becraft,

“Supreme Record Keeper.

“ Die. J. O. B.”

The following is a copy of Robbins’ affidavit:

“Frederick W. Robbins, M. D., of the city of Detroit, in -the said county and State, being duly sworn, says: ■That he is a practicing physician in the city of Detroit, -and has been for a period of eighteen years last past, and as such physician attended John A. Dick, deceased, in his lifetime. Then he diagnosed said Dick’s ailment for the first time January 25, 1900. That said Dick stated to deponent at the time of said diagnosis, that he (Dick) first began to be sick and lose flesh in February, 1899, and from that date up to January 25, 1900 (being the time of said diagnosis), he (the said Dick) had lost fifty pounds in flesh. That deponent, on making said diagnosis, found that said Dick was suffering with cancer of the stomach. At that time could feel no nodular tumor, but' a sense of resistance, as if the stomach wall was thickened. On February 6, 1900, hydrochloric acid was absent; lactic acid was present; a tumor was well marked. Thus the previous diagnosis confirmed. Up to this time there is no reason to believe that the said Dick thought himself to have other than chronic dyspepsia. The above facts concerning the diagnosis of said John A. Dick are entered in a boob of record of my cases which I keep.”

All of the evidence taken upon, the first hearing was laid before the supreme body, as counsel for plaintiff had reason to expect it would be from the correspondence.

The following are the minutes of that trial:

“ Extractions from the minutes of the biennial meeting held March 3rd and 4th, 1903.

“ Committees on Appeals and Grievances:—P. P. Harris, Jere Mosher, H. M. Lee.

“ The report of the Committee on the claim of Emma C. Dick, beneficiary under Certificate No. 3,090 was then read. The report of the committee is as follows:

“The claim of Emma C. Dick as beneficiary under Certificate No. 3,090 for $1,000.00 issued to John A. Dick, late a member of Cadillac Assembly No. 40, of Detroit, Michigan. John A. Dick was examined for membership of the Order under date of December 23, 1898, and was initiated as a member February 6th, 1899, and his certificate of membership was issued March 7th, 1899. On July 12th, 1901, notice was received of his death July 10th. The Committee find the facts as follows:

“The claim was presented to the Board of Trustees and rejected July 3rd, 1902, and an appeal was taken to this Body. Your Committee return, as part of their report, the evidence bearing on the case for the action of the Supreme Body. It is the opinion of your Committee that the action of the Board of Trustees is correct in this instance, still the whole matter is before the Supreme Body for its action.

“ The evidence was then read to the Supreme Body in full, on both sides of the case, and, after considering and discussing the same, it was moved by Brother Fassett, supported by Brother Chandler, that the claim of Emma C. Dick as beneficiary under Certificate No. 3,090 issued to John A. Dick for $1,000.00, brought to this Body by the said claimant on appeal, he, and the same is, hereby rejected. Carried unanimously. ”

From the foregoing it appears that at the first trial plaintiff was represented by counsel, and could have been at the second. He knew that the evidence previously taken would be introduced at the second, and that other evidence might be. ■ It is apparent that there was, to say the least, a plausible reason for believing that the deceased had misrepresented his true condition, and apparently the defendant’s officers so believed, and acted honestly in the rejection of the claim. It is stated by defendant’s counsel that “no active fraud or bad faith on the part of the defendant is claimed in this case,” and this is not denied.

The court charged:

“I do not charge, and it is not charged here, that this defendant organization was guilty of any moral bad faith, or any fraud, but they were guilty of legal bad faith in hearing this appeal in the manner in which it was heard.”

. And plaintiff’s brief states the question before us thus:

“ The only question presented, then, upon this record, is whether a hearing before the tribunals of the order, wherein the only evidence against the claim was a physician’s statement of matters which he claimed to have learned from Mr. Dick while acting as his physician, and which were necessary to enable him so to act, and the disclosure of which are therefore forbidden by statute, which evidence was on this ground objected to by plaintiff’s attorney, is such a hearing, and whether the decision rejecting the claim solely on this evidence is such a decision, as to bar a suit at law.”

She admits the validity of the by-law, but asserts that it does not preclude a suit; that where, “ owing to fraud or oppression, the hearing provided for by the rules of the order is not such as the party is entitled to, an action at law is maintainable;” and says that “ the hearing and decision [of the order] will be vitiated by a disregard of common fairness;” and that “in the case at bar the requirement of common fairness was disregarded by receiving, against objection, a physician’s statement, made in violation of the statutory prohibition, of a disclosure claimed to have been made to him by the assured to obtain his medical assistance;” citing 3 Comp. Laws, § 10181.

At the same time she admits that a hearing is not vitiated because the tribunal failed to comply with the technical rules governing courts in the admission of evidence, and this is clearly the rule, as indicated by the cases which she cites; i. e., Derry v. Great Hive L. O. T. M. M., 135 Mich. 494; Barker v. Great Hive L. O. T. M. M., 135 Mich. 499. We are not aware that it has ever been held that ex parte affidavits and hearsay evidence may not be received and acted upon by such tribunals. They are often convincing, especially when made under strong corroborating circumstances. They are excluded in courts of law under the law of evidence; but can we say that such tribunals as this may not adopt their own rules of evidence ? If that right may not be inferred from the two cases last cited, the contrary is certainly not implied.

Counsel apparently concede that there was no fraud. The only oppression mentioned consists in admitting evidence prohibited by-the statute. If this was received in good faith, it can hardly be said to have been oppressive. Furthermore, if the society might settle its own rule of evidence, it might lawfully hear this testimony.

The statute is entitled to no such broad interpretation as is claimed for it. It is merely a rule of evidence. It has appeared under the title “Evidence” in the statute ever since the compilation of 1838, and should not receive a construction that would prohibit a communication by a physician to another person. We do not intend to imply, by our failure to deny it, that the rule contended for as to fraud and oppression is the law. Plaintiff’s counsel cite Rose v. Supreme Court, Order of Patricians, 126 Mich. 577, in support of the claim. That is a case where the plaintiff was denied a trial by the courts of the order, which is a different question from that before us. See Barker v. Great Hive L. O. T. M. M., 135 Mich. 499. There are Michigan cases which hold that such agreements as the one before us are binding, except where .fraudulent (see Hembeau v. Knights of Maccabees, 101 Mich. 165; Fillmore v. Knights of Maccabees, 109 Mich. 13), but in neither of these cases was a jurisdiction based on such fraud or oppression sustained.

"We have frequently alluded to the danger of rules based ■on such foundations, and, as the facts of this case do not justify a discussion of the question, we think it better to leave it until we have before us a case of “fraud or oppression ” in the proceedings.

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

Grant, J., concurred with Hooker, J.


author: Hooker, J.

text:
    ATTORNEY GENERAL, ex rel. POTTER, v. McVICHIE.
    Limited Partnerships — Election op Managers — Cumulative Voting op Stock—Statutes—Construotion.
    The minority representation law (3 Comp. Laws, § 8553), securing to minority stockholders in corporations the power of electing a representative in boards of directors, and providing for cumulative voting of stock, is not applicable to an •election of managers of a limited partnership association organized under 2 Comp. Laws, §§ 6079-6089, since by 2 Comp. Laws, §§ 6057, 6083, the authority of a manager to contract for the partnership is preserved to some extent in limited partnership associations; and the fact that by Const, art. 15, .§ 11, certain provisions thereof are made applicable alike to all associations having any of the powers of corporations, does not indicate that the word “corporation,” in all legislation, is to be comprehensively construed.
    Quo warranto proceedings by Charles A. Blair, attorney general, on the relation of Waldo T. Potter, to determine the right of Donald McVichie and others to offices of managers of a limited partnership.
    Submitted October 21, 1904.

      (Docket No. 71.)

    Dismissed December 7, 1904.

      Charles A. Blair (W. T. Potter, of counsel), in pro. per.
    ' Young & Bell and William P. Belden, for respondents.
   Hooker, J.

The Anthony Powder Company, Limited,, was organized on January 3Í, 1890, under Act No. 191, Pub. Acts 1877 (2 Comp. Laws, §§ 6079-6089). The original articles of association show that the capital was to be $10,000, divided into 2,500 shares, of $4 each. Subsequently the shares were increased in number to 10,000. The articles also provided that the board of managers should consist of five persons. Their term of office was one year.

At the annual meeting of stockholders held February 2, 1904, the relator was present, owning 5 shares of stock. There being 5 managers to be elected, he and others sought to cumulate their votes for the relator, under the minority representation law (3 Comp. Laws, § 8553). Upon that basis he received a total of 24,250 votes. All of the managers being voted for at once, the remaining stock—5,150 shares—was voted for each of the respondents. The meeting refused to recognize the right to have cumulative votes counted, and credited Potter with 4,850 votes—that being the number of shares so voted—and declared the respondents to be elected members of the board of managers.

The relator thereupon instituted these proceedings to inquire into their right to the office, and prays judgment upon the right of the relator to such office. The only question raised is whether the minority law (§ 8553, 3 Comp. Laws) applies to this association.

Counsel for the relator discuss four propositions, viz.:

“The relator takes the position that it does apply, for "the following reasons:

“1. Under the Constitution, the statutes, and the decisions of our Supreme Court, a partnership association is & corporation.

‘ ‘ 2. If, in the opinion of this court, it is not a common type of a corporation, yet we maintain that partnership associations are governed by the law of corporations.

“3. Should this court hold that the question whether or not a partnership association is a corporation, or is governed by the law of corporations, depends partly on the statute and partly on its articles of organization, then relator submits that the Anthony Powder Company, Limited, is a corporation, and is governed by the law relative to corporations.

“4. The stockholders’ minority law is entitled to a liberal construction.”

The importance of these questions rests upon the conclusion that the minority representation law necessarily applies in case we may say that a partnership association is a corporation, or is governed by the law pertaining to corporations generally. Certain provisions of the Constitution are made applicable to “all associations and joint stock companies, having any of the powers or privileges of corporations, not possessed by individuals or partnerships.” See Const. § 11, art. 15. But it does not follow that the term “ corporation,” as thereafter used in legislation, must in every instance be so comprehensively construed. Had the Constitution makers so intended, they could easily have said so, and the fact that the provision was limited to the term as used in the preceding sections indicates a contrary intention. We have therefore to ascertain the intention of the legislature in passing the minority law.

At the time it was passed the directors or trustees of an -ordinary corporation constituted a board by which the corporation was managed and its business was done. A majority of a quorum of the board, only, could do business for the corporation, except as such majority delegated, power. ■ It is radically different as to members of ordinary copartnerships where each member has authority to contract for the copartnership. This feature is preserved to some extent in limited partnerships and in partnership associations. See 2 Comp. Laws, §§ 6057, 6083.

The application of the minority law to corporations in general does not make it possible for the minority member or members to act against the wish of the majority of the board. To apply it to partnership associations would enable minority stockholders to elect one or two of several' managers, who, though a minority, without authority from or the consent of a majority, could lawfully bind the association by their acts and contracts. There is nothing in the minority act which justifies an inference of an intention to authorize this as to general corporations, and if this unusual, if not unreasonable, policy is to be established under the act, it must be through a construction which applies it to partnerships or partnership associations—possibly both— where individual agency is preserved by the terms of the organic law. The act provides, in terms, that cumulative voting is proper in elections for directors of any corporation. But the legislature for years has avoided applying the name “corporation” to these associations, and designated them by the name of “ partnerships;” and it is not, in our opinion, unreasonable to conclude that it was not their intention to include them under the term ‘ ‘ corporations ” in this statute. An opposite construction would make the law a sword susceptible of use for aggression, whereas it was obviously intended as a shield for defense.

Judgment of ouster must be denied, and the proceedings dismissed, with costs.

The other Justices concurred.