text:
    JUST v. STATE SAVINGS BANK OF IONIA.

    1. Banks — Transfer of Stock — Validity.
    A holder of bank stock, who was indebted to the bank,.desiring to qualify himself for the office of State Bank Commissioner, transferred his stock to his wife, who gave the bank her note in reduction of his indebtedness. He ceased to be an officer, and she was elected a director. Held, that none of the three parties could maintain that the transaction was merely color-able and void.
    2. Same — Consent of Directors.
    A by-law of a bank, forbidding a transfer of stock by one who is indebted to the bank without the consent of the board of directors, does not invalidate a transfer of stock by such debtor, where the purchaser assumes the debt, and the board, without questioning the validity of the transfer, recognizes it by electing the purchaser a director.
    3. Same — By-Laws—Lien of Bank — Bona Fide Purchasers.
    Neither a by-law of a bank nor an agreement between the bank and a stockholder, that the bank shall have a lien on the stock for the amount of the stockholder’s indebtedness not then due, is binding upon bona fide pledgees of the stock for value.
    4. Husband and Wife — Agency—Evidence.
    A statement by a husband that he is authorized to pledge his wife’s stock to secure his debt does not tend to prove his authority.
    •5. Same — Surety—Pledge of Property.
    While a married woman cannot incur a personal obligation by becoming a surety for her husband, she may pledge her bank stock to secure his debt.
    6. Bank Stock — Lien for Debt — Pledge of Stock.
    A bank stockholder gave her note to the bank, and then pledged her stock for her husband’s debt to another bank. The latter bank gave the first bank notice of the pledge. The first bank * claimed a lien on the stock to secure the note by virtue of a by-law and an agreement with the stockholder. The second bank had no knowledge of either agreement or by-law. Held, that the first bank could not assert a prior lien.

      7. Same — Notice.

      Abona fide purchaser or pledgee of bank stock for value does not take it subject to the bank’s lien under 2 Comp. Laws, § 6008, for a debt subsequently falling due, where the bank has notice of the purchaser’s or pledgee’s rights.
    8. Bona Fide Purchasers — Consideration—Extension op Time.
    An extension of time for the payment of a pre-existing debt is a sufficient consideration to constitute the creditor a bona fide holder in taking stock as security for the debt.
    Appeal from Ionia; Davis, J.
    Submitted October 9, 1902.
    (Docket No. 37.)
    Decided April 7, 1903.
    Bill by William J. Just and Isaac N. Just, administrators of the estate of Josiah E. Just, deceased, against the State Savings Bank of Ionia, the Belding Savings Bank, the Ionia County Savings Bank, and Ella V. Just, to reduce to possession and determine the title to certain certificates of stock. From the decree rendered, complainants and the Ionia County Savings Bank appeal.
    Modified.

      Morse & Locke, for complainants.'

      A. A. Ellis and E. M. Davis, for defendant Ionia County Savings Bank.

      George E. & M. A. Nichols, for defendants State Savings Bank and Belding Savings Bank.

       Rehearing denied May 29, 1903.

   Hooker, C. J.

Josiah E. Just died on February 19, 1898, and the complainants were soon after appointed administrators of his estate. • They filed the bill in this cause to reduce to possession and settle the title to nine certificates of stock of the Ionia County Savings Bank in the interest of Just’s general creditors, the estate being alleged to be insolvent. The certificates were numbered from 1 to 9, inclusive. The defendants are the State Savings Bank of Ionia, the Belding Savings Bank, the Ionia County Savings Bank, and Ella Y. Just, the widow of the intestate. The complainants and the Ionia County Savings Bank appealed.

At the time of Mr. Just’s death, certificates of stock Nos. 3, 4, 5, and 6 were in his custody, but all stood in the name of Ella Y. Just upon the stock ledger of the bank, the entry being in Mr. Just’s writing. Certificate No. 1 was assigned to Mrs. Just in Mr. Just’s handwriting. The assignments upon the back of the others were signed by Mr. Just, but the blanks were not filled. Nos. 8 and 9 were held by the Belding Bank, and claimed as collateral to a note of $1,950, signed by Mr. Just, and dated January 12, 1898, on four months’ time. Nos. 2 and 7 were held by the State Savings Bank of Ionia as collateral to Mr. Just’s note of $2,000, given December 2, 1897, on four months’ time. All of this stock appears by the stock ledger to have been transferred to Mrs. Just on December 17, 1896, except No. 1, which bears the date of February 15, 1897. It was conceded that certificate No. 1 was the property of Mrs. Just, and that it was delivered to her. It was also admitted that certificate No. 6 was taken up, and a new certificate for $800 issued to Mrs. Smith, who was entitled to it. This leaves $200 of No. 6 in dispute', also certificates Nos. 2, 3, 4, 5, 7, 8, and 9, each representing $1,000 in stock. The Belding Bank claimed the right to certificates 8 and 9 as collateral security for its loan. A similar claim was made by the State Savings Bank as to Nos. 2 and 7, while the Ionia County Savings Bank claims a lien upon all except $800 of No. 6. The administrators deny that either bank has a lien upon the stock, and claim it for distribution generally among Just’s creditors. The decree appealed from sustains the respective liens of the Belding and State Savings Banks as to 2, 7, 8, and 9, and of the Ionia County Savings' Bank as to all except No. 1 and $800 of No. 6, subject to the claim of the Belding and State Banks on 2, 7, 8, and 9. It determines that the stock, with the exception of certificate No. 1, yyas never the property of Mrs. Just.

The intestate was in debt to the Ionia County Savings Bank in a large sum, and much of it was due. Under the statute (section 6098, 2 Comp. Laws) the bank had-a lien upon this stock for such as was due, and under its by-law it had a lien whether the indebtedness was due or not. At this juncture Mr. Just was offered the office of State Bank Commissioner, whéreupon he arranged with the officers of the bank and his wife that he should assign his stock to her, and that she should give the bank her note, indorsed by him, for $7,300, in reduction of Just’s indebtedness, and it is claimed that it was agreed that the bank was to have a lien on the stock for the same. He accordingly assigned the stock in blank, and entered a transfer of it to his wife in the stockbook, she gave her note to the bank, -he ceased to be an officer of the bank, and she was elected director, and qualified. It is contended by complainants’ counsel that this transaction was merely color-able, and that he never delivered the certificates to his wife or the bank, and never had new certificates issued. Many other circumstances are suggested in support of this theory, upon which complainants contend that the stock at all times remained the property of Just, though they take the somewhat inconsistent position that there was enough *to the transaction to divest the bank of its lien for Mr. Just’s indebtedness remaining due and unpaid.

We are of the opinion that none of the three parties ’can be heard to say that this transaction was void. It was necessary for Mr. Just to part with his stock to render him eligible to the office of commissioner.' He caused it to be transferred to his wife, who consented to receive it, and become a director. The biink also consented, and recognized her as such director. She cannot now repudiate her note, and her husband’s administrators cannot claim the stock. Neither can the bank deny its transfer, or claim a lien based upon such denial. Had new certificates been issued to the wife, there could be no doubt of this. As it was, she became the owner of the stock, whoever held the certificates, and, as between the three parties, the Ionia County Bank had a lien upon them for her debt. If it be said that the by-law 19, forbidding the transfer without the consent of the board of directors, invalidates the transfer, it is a sufficient reply to say that this transfer must have been known and approved by the board. It recognized Mrs. Just as a stockholder by electing her a director, and apparently has never questioned the validity of the transfer. The general creditors were not injured by the transaction, and the bill, having apparently been filed under the statute (3 Comp. Laws, § 9363), is not sustained by the proofs, and was properly dismissed.

It remains, however, to determine the rights of the respective banks. The Ionia County Bank appeals from so much of the decree as postpones its lien to those of the Belding and State Savings Banks, and excludes certificate No. 1. We must, therefore, determine whether the alleged liens of these banks can be sustained, and whether the lien of the Ionia Bank should not cover certificate No. 1. As we have already said that the stock passed to Mrs. Just, and that her note is a valid obligation, certificate No. 1, to which no one questions her right, is subject to the lien of the Ionia County Savings Bank.

The State Savings Bank received two certificates of stock — 8 and 9 — on November 29, 1895, to secure a note of |2,000, which Mr. Just gave that day. In September, 1897, the Belding Bank advanced money to Mr. Just to pay this loan, taking the stock as collateral to a note given by him for that amount upon the assurance that it was with Mrs. Just’s consent. It is claimed that on December 2, 1897, Mr. Just borrowed of the State Savings Bank $2,000, and gave, with the consent of Mrs. Just, certificates 2 and 7 as collateral security. This consent was in writing, and was addressed to the cashier of the State Savings Bank. At the time these certificates were delivered to the respective banks, Mrs. Just’s only indebtedness to the Ionia County Bank consisted of a note for $7,658.10, dated July 26, 1897, due in one year from its date. This was executed and delivered September 12, 1897. The bank had no lien on her stock, under the statute, after September 12, 1897; but the agreement made at the time the stock was transferred was in force, and also the by-law which prohibits any transfer of stock without the consent of the board of directors, where the registered holder is indebted to the bank. There is nothing to indicate that the two banks knew of the by-law, or of the alleged agreement that the Ionia County Bank should have a lien on the stock. They received the certificates assigned in blank on the understanding that Mrs. Just was the owner, and the stock register shows that she was the owner. If they were bona ficle holders for value of this stock, the by-law was not binding upon them, and neither was the agreement. See Bronson Electric Co. v. Rheubottom, 122 Mich. 608 (81 N. W. 563).

We find no evidence in the record that warrants us in holding that Mrs. Just authorized her husband to pledge her stock to the Belding Bank. Mr. Just’s statement that he was authorized to do so does not tend to prove it. It follows that such pledge did not bind her, and the bank has no title to the stock. This leaves the Ionia Bank lien valid, and first upon the stock held by the Belding Bank.

With the State Savings Bank the case is different. It accepted the paper of Mr. Just on the faith of Mrs. Just’s written consent, addressed to its cashier, that “Mr. Just was authorized to pledge 20 shares of stock with him for a loan.” While a married woman may not become a surety for her husband, and thereby incur a personal obligation, she may pledge her property to secure his debt. This she seems to have been willing to do, and is now estopped from disputing the validity of the pledge. At the time this pledge was made, the Ionia Bank had no statutory lien upon this stock, and the State Bank was ignorant of the by-law and the alleged agreement. Before her note became due to the Ionia Bank, that bank had notice that the State Bank held the stock as security.

It is contended, however, that this did not make the State Bank the holder of a prior lien, for the reasons (1) that it had not the legal title to the stock; (2) that it failed to demand a transfer of the stock upon the bank books. The assignment of the stock in blank, and delivery, was sufficient, with the letter showing authority, to confer upon the State Bank an interest by way of security, which took precedence over any claim that the Ionia Bank then had, provided the State Bank was a bona fide holder for value. See 23 Am. & Eng. Enc. Law, 655, 656, and notes; In re Argus Printing Co., 12 L. R. A. 781, and note (s. c. 1 N. Dak. 434, 48 N. W. 347, 26 Am. St. Rep. 639); 2 Morse, Banks, § 699 (d); Gemmell v. Davis, 75 Md. 552 (23 Atl. 1034, 32 Am. St. Rep. 412); Nesmith v. Bank, 6 Pick. 324; Conant v. Reed, 1 Ohio St. 298; Prince Investment Co. v. Land Co., 68 Minn. 121 (70 N. W. 1079); Des Moines Loan & Trust Co. v. Des Moines Nat. Bank, 97 Iowa, 668 (66 N. W. 914); 1 Cook, Stock, Stockh. & Corp. Law, § 532.

Whatever may be the English rule, we think it is settled that the courts of, this country repudiate the idea that a bona fide purchaser or pledgee of stock takes it subject to claims that may subsequently arise in favor of the corporation, if it has notice of his purchase, and that notice of the purchaser’s rights is sufficient to protect them, although a demand for a transfer of the stock on the books of the corporation be not made. Prince Investment Co. v. Land Co., 68 Minn. 121 (70 N. W. 1079); Conant v. Reed, 1 Ohio St. 298; Bank of America v. McNeil, 73 Ky. 54; Des Moines Loan & Trust Co. v. Des Moines Nat. Bank, 97 Iowa, 668 (66 N. W. 914); Hotchkiss & Upson Co. v. Bank, 15 C. C. A. 264, 68 Fed. 76; Cook, Stock, Stockh. & Corp. Law, §§ 532, 727. See, also, Michigan Trust Co. v. State Bank of Michigan, 111 Mich. 310 (69 N. W. 645); Oakland County Sav. Bank v. State Bank of Carson City, 113 Mich. 284 (71 N. W. 453, 67 Am. St. Rep. 463). While the State Bank was bound to know that it took the bank stock subject to any existing statutory lien in favor of the Ionia Bank, it could not be required to anticipate an agreement that this stock should be security for Mrs. Just’s note, when the stock itself was not held by the bank; nor was it bound to know of the alleged by-law, or to inquire about it. The stock was transferred to Mrs. Just, and her agent produced the certificates with authority to pledge them. See Bronson Electric Co. v. Rheubottom, 122 Mich. 612 (81 N. W. 563); 1 Cook, Stock, Stockh. & Corp. Law, § 524, and cases cited.

Was the State Bank a bona fide holder for value ? All the elements of such a holder are present, unless it be for the reason that it took security for a pre-existing debt, and did not pay money at the time it took the security. The fact is that an extension of time was granted, and a new note taken, in consideration of the pledge of this security. It has been the understanding of this court that such extension constituted a pledgee a bona fide holder for value, the. other essentials not being lacking. It was so stated in the opinion of Mr. Justice Montgomery in the case of Schloss v. Feltus, 103 Mich. 533 (61 N. W. 797, 36 L. R. A. 161), and recognized in the majority opinion in that case. See, also, Thompson v. Village of Mecosta, 127 Mich. 529 (86 N. W. 1044); 16 Am. & Eng. Enc. Law, 837, and note; Cary v. White, 52 N. Y. 138.

The decree must be modified, and it is adjudged that the Ionia County Savings Bank has a valid claim for the unpaid balance due upon the note of Mrs. Just, and that it has a first and unimpaired lien upon the stock belonging to Mrs. Just, viz., certificates 1, 3, 4,- 5, 8, 9, and $200 of said certificate 6, and a lien upon certificates 2 and 7, subject to the lien of the State Savings Bank; that the State Savings Bank has a first and unimpaired lien on said certificates Nos. 2 and 7 for the amount due upon the note; that the Belding Bank has no valid lien upon any of said stock; that the complainants have no rights in any of said stock, and that their bill be dismissed. The Ionia County Savings Bank shall recover costs of both courts against the complainants, and the State Savings Bank shall recover its costs of both courts against the complainants and the Ionia County Savings Bank. No costs shall be recovered by or against any other party to said suit. In other respects the decree is affirmed, except as inconsistent herewith. The amounts remaining due upon the several obligations covered by said liens will be settled in the decree.

Moore, Grant, and Montgomery, JJ., concurred.


source: Caselaw Access Project

author: Hooker, C. J.

license: Public Domain

text:
    BOOTH v. MURDOCK.

    Specific Performance — Invention—Want of Equity.
    Complainants contracted with a person to invent and patent a machine for them. Although the money was furnished according to the contract, it proved insufficient, and the work was stopped. Subsequently the inventor made an agreement with one having no knowledge of complainants’ contract, to furnish money to complete the invention for an interest in it. The inventor died, and complainants filed a bill for specific performance. Held, that it would be inequitable to enforce the contract, especially against the defendant who had furnished large sums to complete the invention.
    Appeal from Wayne; Frazer, J.
    Submitted October 15, 1902.
    (Docket No. 60.)
    Decided April 7, 1903.
    Bill by Clarence H. Booth and Walter E. Booth against Charles A. Murdock, Austin E. Wing, administrator of the estate of Charles F. Murdock, deceased, and Eugene H. Sloman, for the specific performance of a contract. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Charles C. Stewart (Moore & Moore, of counsel), for complainants.

      E. T. Berger, for defendant Murdock.

      Walker & Spalding, for defendant Wing.

      Adolph Sloman, for defendant Sloman.

       Rehearing denied September 22, 1903.

   Hooker, C. J.

Complainants ask specific performance of a contract whereby Charles F. Murdock, now deceased, agreed to invent a machine for the pressing of bath tubs from sheets of steel, and after constructing a small model of such machine, and demonstrating its ability to produce the bath tub in miniature, to construct upon complainants’ premises working machines of sufficient size to produce a merchantable bath tub of the description mentioned, and capacity for 20 tubs per day. In consideration of the above, complainants promised to pay $5,000 as follows, viz.: $200 during the construction of model machines, and additional money as might be required for labor and material in constructing the large machines, to the amount of $1,500; the balance to be paid when the machines should be erected on complainants’ premises, and a merchantable tub produced. It was further agreed that, “upon completion of the above,’’Murdock should assist complainants to procure “ patents covering all new and useful features brought into use by the construction of said machines, and the products thereof, and assign all his rights and titles therein ” to the complainants.

The model was constructed, and miniature tubs were produced by it, some being perfect and some imperfect. Work was commenced on a large machine, and continued for a time, but was finally suspended by reason of Murdock’s want of funds to go on with it. Complainants were during this time stockholders in a concern known as the Steel Bath Tub Company, and they assigned to it an interest in the contract with Murdock. They also paid Murdock from time to time, in accordance with said contract, by giving to him the checks of the Steel Bath Tub Company, until they had paid all except the final payment therein provided for. The Steel Bath Tub Company finally failed, about the time work was suspended by Murdock; and it is perhaps a proper inference that he stopped work when he was no longer able to procure money from the complainants, notwithstanding the fact that they had paid all that he was entitled to. The interest of the Steel Bath Tub Company was finally sold for a small sum to some one not a party to this proceeding, and Murdock mortgaged the machines to a bank.

Work was suspended on the machines for a year or more, until finally Sloman and Murdock made an arrangement whereby the former agreed to furnish money to complete the machine for a half interest in the invention and machines. A contract was also made between Sloman and the Murdock Valve Company, which claimed to own the machines in process of construction. Sloman afterwards invested upwards of $10,000 in attempts to complete the machine, more than $4,000 of which was paid before he had any notice of complainants’ connection with the matter. Charles F. Murdock died a few months after Sloman became interested, and this bill was filed against his son, Charles A. Murdock, Wing, the administrator of Charles F. Murdock, and Sloman. It prays an injunction to restrain the disposition of the property during the litigation, and a decree that Wing, the administrator, be required to apply for a patent covering the invention, and assign the same to the complainants,' and, if Charles A. Murdock be found to be a joint inventor, as claimed by him, that he be required to join therein, and that all defendants be required “to assign to the complainants their joint or several interests in and to any patent that they have heretofore or may hereafter apply for.” In other words, it is a bill for specific performance, as already said.

It is unnecessary to discuss the evidence at length. We think it justifies the conclusion that the complainants made all payments required by the contract, and that a machine embodying certain principles was thought out, and drawings thereof made. A model of the machine was produced, which made the miniature tub, and the basic principles of the larger machine, which was begun before Murdock’s death, were incorpórated in the model machine. The large machine was not built at the time Murdock died, if it has been since, and no machine has ever been erected upon complainants’ premises. Granting that the machine was invented, it is manifest that much work and many and repeated changes and alterations were necessary before it could be made to do the contemplated work. This was true when Murdock died, and, if the machine can now be said to have been perfected, it has been done by others at the expense of Sloman. But it is claimed that the machine is not now perfected, that the estate of Murdock is insolvent, and that much skilled labor will be required to devise and make alterations, and to perfect and build the machines provided for by the contract. Furthermore, there is evidence tending to show that Charles A. Murdock is a joint inventor with his father, and therefore an owner of an interest in the invention, while, as already said, one not a party to the record owns a substantial interest in the contract under an assignment from the complainants.

We need not pass upon the many legal questions discussed. If it were to be conceded that there is no legal impediment, it would be inequitable to make such a decree as is asked for, especially against Sloman. A court of equity will not usually decree specific performance where justice cannot be done to all parties.

The decree of the circuit court is affirmed, with costs, but without prejudice to any other remedy that complainants may have against Murdock’s estate upon the contract.

Moore, Grant, and Montgomery, JJ., concurred.


text:
    HOPKINS v. CROSSLEY.

    Trusts — Personal Property — Charitable Uses.
    An incorporated volunteer fire department, preparatory to a dissolution, and after disposing of a portion of its property, • converted the balance into money, and placed it in the hands of trustees, the income therefrom to be applied by them to the relief of poor and needy members of the corporation and their families, to the relief of any poor, needy, or disabled members of the present or future fire department, and to the relief of any other needy and worthy persons who might be designated from time to time by the trustees. Held, that the doctrine of charitable uses does not exist in this State, and the trust should be held void.
    Appeal from Wayne; Hosmer, J.
    Submitted October 17, 1902.
    (Docket No. 80.)
    Decided April 7, 1903.
    Bill by Bobert Hopkins and others against Luke Orossley and others to set aside a trust. From a decree dismissing the bill, complainants appeal.
    Beversed.

      John J. Speed and Robert T. Speed, for complainants.

      Fred A. Baker, for defendants.

       Rehearing denied September 22, 1903.

   Hooker, C. J.

The menibers of the old volunteer fire department of Detroit wepie incorporated in 1840 by special act of the legislature, ^and given the right of perpetual succession. Laws'1840, Act No. 14. Section 6 of the act provided that “the interest arising from the funds of the said corporation, except sufficient to defray incidental expenses, sfy'all be appropriated to the relief of such indigent and disabled firemen and their families who may be interested in (the fund, and-who may, in the opinion of the majority of the trustees, be worthy of assistance.” This sectipii was amended in 1869 to read as follows, viz.:

“ That the funds of the said corporation, and the interest thereon, shall be appropriated and used in carrying out the objects and purposes of said corporation, defraying its incidental expenses, providing for the relief of indigent and disabled members of the corporation, their widows and orphans, as well as for the maintenance of an institution or institutions for moral and intellectual improvement, and the relief and instruction of such homeless and destitute persons of the city of Detroit as they may select, .and for no other purpose whatever.” 3 Laws 1869, Act No. 410.

The volunteer fire department was abolished by the organization of a paid department in 1867. 2 Laws 1867, Act No. 453, § 2. The corporate organization of the old department was maintained until 1886. Shortly before that time a meeting was held, at which 80 of a total of 116 members were present, and, after hearing the report of a committee appointed by the meeting, said report was adopted by a unanimous vote of the 80 present. The substance of the report was as follows: It recommended:

1. That the property be converted into money, with the exception of certain paintings, which should he turned over to the Art Museum, in trust, and, if that should cease to exist, then to be delivered to the Public Library.
2. That $58,500, or so much of said sum as should be necessary for the purpose, should be used to pay each one of the existing members of the corporation the sum of $500.
3. That $15,000 should be used in purchasing a bed in perpetuity in each of several hospitals of the city, naming them, to be devoted to specified uses.
4. That the balance of the fund should be placed in the hands of three trustees, to be named by the corporate board; as a trust of personal property only, and that the income to be derived from such fund should be applied by them “to the relief of poor and needy or disabled members of this corporation and their families, so long as any of them live; that, secondly, said income shall be applied to the relief of any poor, need3, or disabled members of the present active, or any future, fire department of the city of Detroit; that, thirdly, said income shall be applied to the relief of any other needy and worthy persons who may be designated from time to time by the trustees hereinafter mentioned; that said trustees may also use, in their discretion, a portion of the income, from time to time, in keaping°the lots and monuments erected in the cemeteries of Detroit in honor of the firemen of said city in repair; that whenever the trustees, in purchasing a bond or security, shall pay a premium therefor, they shall retain out of the interest such sums annually as will restore to the fund at the maturity of the bonds or security exactly what was taken therefrom at the time of the purchase; and that said trustees are also charged with the duty of looking after the beds in said hospitals, to the end that they be devoted to the uses and purposes for which they were purchased.” Provision was made for the appointment of trustees to fill such vacancies as should occur.
5. That, when the foregoing plan should be carried out, proceedings be taken for the voluntary dissolution of the corporation.

Accordingly the proper officers executed an indenture to three persons, named as trustees, reciting the proceedings mentioned above, and the proceedings of the corporation and board thereafter taken to carry out said report so adopted, and that the property had been converted into money, and $500 paid to each member, the delivery of the paintings as provided, the purchase of the beds as directed, the selection of trustees and their acceptance, and thereby conveyed the remaining property, amounting to $20,000, to said trustees. This writing was executed in 1887, and its provisions have been carried out since. The corporation was duly dissolved thereafter. The bill in this cause was filed by 24 of 48 survivors of the members of the defunct corporation for the purpose of having the trust declared void. They pray that the trustees be required to distribute the funds, principal and interest, among the surviving members of the corporation. The trustees answered, and a hearing upon the merits was followed by a dismissal of the bill, with costs. The complainants have appealed. ■

It seems to be conceded that this trust can be sustained only upon the theory that it is a conveyance to charitable uses. Complainants contend that the doctrine of charitable uses does not exist in this State, while defendants insist that it does so far as to cover conveyances of personal property for charitable uses, though they admit that it does not as to real estate. It is a significant fact that no case has been called to our attention in which the doctrine has been enforced, either as to real or personal property. The case of Methodist Episcopal Church v. Clark, 41 Mich. 741 (3 N. W. 207), discussed the question, and it was then pointedly said by Mr. Justice Cooley that the statute of Elizabeth was repealed in 1810, and that “there is no evidence that any pre-existing law on that subject has ever been recognized in this State.” Counsel for the defendants says that this language was not necessary to a decision of the case, for the reason that the statute against perpetuities was sufficient to require the disposition made of that case, and that what was said about charities was dictum. Assuming this as a premise, he proceeds to argue that this trust can be maintained because of the absence of a statute restraining alienation of personal property, in which respect Michigan statutes differ from those of New York, from which fact he urges a distinction between the law declared in New York and the rule which he invokes to govern this case.

If it can be said that the only obstacle in the way of upholding the trust is the statute against perpetuities, his contention might be sustained. Again, the statute of uses and trusts (chapter 238, 3 Comp. Laws 1897) does not affect the question, for it affects real property only. Ledyard’s Appeal, 51 Mich. 623 (17 N. W. 208). We find it necessary, therefore, to ascertain whether the case of Methodist Episcopal Church v. Clark, supra, is controlling. In that case a landowner conveyed to trustees certain lands, “in trust that they shall erect and build * * * a church for the use of the members of the Methodist Episcopal Church, * * * and in further trust and confidence that they shall at all times forever hereafter permit such ministers * * * to preach therein,” etc. The court first discussed the case upon the assumption that the trust was for the exclusive benefit of the local society, and upon that theory held that the trust was void, as conflicting with the principle of the general statute against perpetuities. 2 Comp. Laws 1871, § 4082. If a private trust, as assumed, this would doubtless be true. We now come to what is said to be a dictum. The court seems to have considered it necessary to go further. It did not leave the decision to rest upon the assumption that this was a private charity, for, as was said, the terms of the trust were somewhat ambiguous, and the deed was open to an interpretation which would preclude any exclusive appropriation by the local society. While the court did not decide that this was a public charity, it may be thought to have intimated that it might be, and called attention to a case where a similar trust was discussed. See Methodist Society v. Bennett, 39 Conn. 293. If, as. defendants’ counsel has chosen to admit, the statute against perpetuities in relation to real property is applicable to lands conveyed to charitable uses, as it was held to be to lands conveyed to a private trust or use, this might easily have been said, and more would have been unnecessary ; but the court did go further, as already said, and, if it was necessary to do so, to dispose of this feature of the case before it, what was said was more than a dictum. Evidently the court thought it necessary, and it can hardly be said to have supposed that what it said was obiter.

We will, however, examine the question further. Counsel’s seeming concession that the statute against perpetuities in land applies to land conveyed to charitable uses may not correctly state the law. On the contrary, it has been held 'in many cases, if it is not the uniform doctrine, that “the rule against perpetuities does not apply to a gift to a charity.” See a discussion of this subject in Perry, Trusts, § 384, and section 736 et seq., and notes, where the distinction between charities and trusts (proper) is drawn. See, also, the text and authorities cited in 5 Am. & Eng. Enc. Law (2d Ed.), at page 902. It is significantly said in a note to the last citation that while provisions against perpetuities are found in several States, among which is Michigan, the validity of charitable trusts has not been attacked on that ground. This is true of the opinion in Methodist Episcopal Church v. Clark. We see from the foregoing that the court might readily have believed, as we think it did, that its decision could not be left to rest on the statute prohibiting perpetuities, if it was to call the trust a charitable one. It understood that'the statute was no answer to such a claim, and it went on to say:

‘ ‘ If the law of charitable uses were in force in this State, the trust might be upheld under its rules. But that law is generally referred to as the ‘Statute of Elizabeth,’ commonly called the ‘Statute of Charitable Uses,’which, with other English statutes, was repealed in Michigan in 1810. 1 Terr. Laws, 900. There is no evidence that any preexisting law on that subject has ever been recognized in this State.”

See, also, Hathaway v. Village of New Baltimore, 48 Mich. 254 (12 N. W. 186); Harringtons. Pier, 105 Wis. 485 (82 N. W. 345, 50 L. R. A. 307, 76 Am. St. Rep. 924); Bascom v. Albertson, 34 N. Y. 584; Holmes v. Mead, 52 N. Y. 332; Ruth v. Oberbrunner, 40 Wis. 238.

We are convinced that the rule laid down is not a dictum, and that the question was settled in that case. It is urged that this holding was wrong, and that the court of chancery, having the powers of the English court of chancery, has a jurisdiction over charities independent of the statute of charitable uses, — one whose origin antedated such statute. It must be admitted that many authorities sustain this contention, but to adopt it we must overrule authorities in this State of long standing, which have been followed by the profession and the courts. The conflict among the decisions of other States indicates that the doctrine contended for may be of questionable policy, and, if it is not, a remedy can readily be applied. We have felt reluctant to hold invalid this charitable trust, which seems a meritorious one, but we see no escape from that responsibility.

The first, second, and third prayers of the bill will be granted, and it is further decreed that the trustees distribute, under the direction of the circuit court, among the persons who shall be shown to be entitled thereto, the fund in their possession. No costs will be allowed.

Moore, Grant, and Montgomery, JJ., concurred.


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    MULL v. SMITH.
    1. Statute of Frauds — Sale of Lands — Mutuality of Contract.
    Under the statute of frauds, making contracts for the sale of lands void unless the contract, or some note or memorandum thereof, is in writing and signed by the vendor, a contract for the sale of land, a memorandum of which is signed' by the vendor only, is valid and binding on both parties.
    2. Same — Terms of Contract — Existing Mortgage.
    A memorandum of a contract for the sale of lands, stating that the owner agrees to give a warranty deed upon payment of $275, subject to a mortgage of $250, is not so deficient in failing to state the particular mortgage, and its terms, as to make the contract void under the statute of frauds.
    3. Same — Time of Payment.
    An offer to sell land for $375 cash, which is accepted, and $100 paid, and a memorandum given by the vendor agreeing to give a deed upon payment of $275, is an agreement to pay cash within a reasonable time, and sufficiently fixes the time of payment to comxily with the statute of frauds.
    Error to Newaygo; Palmer, J.
    Submitted November 21, 1902.
    (Docket No. 118.)
    Decided April 7, 1903.

      Assumpsit by Edwin M. Mull against Frank H. Smith for money had and received. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Martin Bozema, for appellant.

      A. F. Tibbitts, for appellee..
   Hooker, C. J.

The plaintiff sued to recover $100 paid to the defendant. The cause was tried before the circuit judge without a jury, and he rendered a judgment for the defendant, and the findings filed show the following facts: The defendant owned a 40-acre tract of land, called the “Burns Farm,” and negotiations were had between the parties for its purchase by the plaintiff. The premises were inspected by plaintiff and an agent of the defendant, who asked $650 for them. The agent was directed by the plaintiff to ascertain whether the defendant would take “less than $650 for cash.” The parties met defendant, who, on being asked to fix his lowest cash price, submitted the following written proposition:

“Fremont, Mich., December 22, 1900.
“ Forty acres for $650. Mortgage $250. Leaves balance $400. Will take cash $375 for my interest in place.
“Frank H. Smith.”

This was Exhibit 1. Plaintiff accepted this, and paid $100 down. Defendant gave him a memorandum of the contract, reading as follows:

“Fremont, Mich., Dec. 22nd, 1900.
“I agree to give Mr. E. M. Mull a warranty deed of the Burns farm upon payment of $275, subject to mortgage of $250.
“Frank H. Smith.”

This was Exhibit A. He also gave him the following receipt:

“$100.00. Fremont, Mich,, 12 — 22, 1900.
“Deceived of E. M. Mull one hundred dollars to apply on payment of Burns farm.
“F. H. Smith.”

This was Exhibit B. It was arranged that the plaintiff was to have a short time to go to Ohio to get money to pay the balance of the purchase price. Some time after, the defendant tendered a deed and demanded payment, which the plaintiff refused. The plaintiff’s claim is that the contract was void under the statute of frauds, and that he was entitled to recover the money paid. The court held that Exhibits A, B, and 1 constituted a valid contract, and that plaintiff could not recover, and rendered judgment of no cause of action. Plaintiff has appealed.

Our statute does not make all contracts for the sale of land void. It excepts those where the contract itself, or some note or memorandum thereof, is in writing and signed by the vendor. When the contract itself is in writing and signed by both parties, the writing is the contract. When the memorandum of the oral contract is in writing and signed by the vendor, it is not the contract, but a memorandum, which makes it binding upon him if accepted by the vendee. This is valid evidence of the contract. But can it bind him if not binding upon the vendee ? The statute differs from the English statute, which binds the one sought to be charged only when he has signed it. Under such a statute it may be doubtful if, relying solely upon the memorandum signed by himself, the vendor could enforce, or recover damages for the breach of, the contract. See note to Seton v. Slade, 3 White & T. Lead. Cas. Eq. 1091 et seq. But, whether this is so or not, we cannot doubt that, before either party can make the contract the basis of a suit or action, the element of mutuality must be discernible. See Wilkinson v. Heavenrich, 58 Mich. 574 (36 N. W. 139, 55, Am. Rep. 708). And if we admit as satisfactory the reason given, i. e., that by filing a bill the vendee has made the remedy mutual, or say that, by the statute itself, it is made binding upon the vendor, what shall we say when an action is brought against the ve'ndee, or he sets up a defense based iipon the statute, in the absence óf any proof except a memorandum made, signed, and produced by the vendor only ? Manifestly, we should require proof that the vendee had something.to do with the contract, and this is supplied in this case by evidence that he accepted the memorandum as such, and paid money upon it, as in the case of personal property. 1 Mechem, Sales, § 450. See 8 Am. & Eng. Enc. Law, 719, and note 2. It being admitted that the vendor has made and the vendee accepted such a memorandum, it must, in the absence of fraud, be taken as conclusive, not subject to variation by parol evidence, and, if it contains all of the requisites of a valid land contract, it is binding on both; otherwise not. See 1 Mechem, Sales, § 446, and note.

The circumstances under which these writings were executed and given are said to be admissible in aid of their construction. 8 Am. & Eng. Enc. Law, 722, and note 2. We are of the opinion that the two writings which were delivered to and kept by the plaintiff show plainly enough all of the essentials of a land contract. The plaintiff claims that they are deficient because they fail to state the particular mortgage, and its terms, subject to which the plaintiff purchased. We are satisfied that a promise to give a warranty deed, subject to a mortgage of $250, would ordinarily be understood to mean an existing mortgage. That would be the ordinary meaning of the language. See 1 Comp. Laws, § 50.

Again, it is said that the memoranda fail to show when the purchase price should be paid, and counsel seems to have thought it competent to show that in fact the agreement was for a deferred payment at a definite time. We have already said that, by accepting the writings as such memorandum, plaintiff has cut off any right to question their accuracy, and the only question left to him is whether they sufficiently contain the terms of the agreement. We think they do. The only inference is that he shall pay cash for the^property within a reasonable time. See Browne, Stat. Frauds, § 384.

Here, then, was a valid contract for the sale of land. Defendant is proven to have made it by his writings signed and delivered. The plaintiff is shown to be a party to it by oral proof of his acceptance of defendant’s memoranda, and payment of $100 upon it. He cannot recover the $100 as money paid for his use.

The judgment is affirmed.

The other Justices concurred.


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    PURDY v. LAW.
    1. Justices’ Courts — Jurisdiction—Appearance.
    Where the entries in a justice’s docket show that a summons was issued, but not served on one of the defendants, and an alias was issued, but no entry of the appearance of the plaintiff on the return day, and no entry of the appearance of the defendants, a judgment rendered against them on the return day of the alias summons is void.

      2. Same — Alias Summons — Date op Issue.
    Such judgment cannot be sustained by considering the alias summons as the commencement of another action, where the docket fails to state when it was issued.
    Appeal from St. Clair; Tucker, J., presiding.
    Submitted December 4, 1902.
    (Docket No. 145.)
    Decided April 7, 1903.
    Bill by Delos Purdy against Eugene E. Law to remove a cloud from title. From a decree dismissing the bill, complainant appeals.
    Reversed.

      William E. Leonard (William T. Mitchell, of counsel), for complainant.

      Alex. Moore, for defendant.
   Hooker, C. J.

The complainant filed the bill in this cause to remove a cloud from his title to a lot in Port Huron. The testimony shows that he purchased the lot from George E. Mallory for a valuable consideration, and in ignorance of any claim against it, although at the time of such purchase the defendant had a sheriff’s deed of the prémises issued upon an execution sale based on a transcript judgment.

The transcript of the docket filed is as follows:

“Neil McCormick “vs. Elmer G. Mallory and f George E. Mallory.
Attorney: John L. Willoughby.
Assumpsit.
Sept. 28th, 1898, praecipe filed and summons issued, returnable at my office in the city of Port Huron on October 6th, 1898, at 8 a. m.
“Summons returned personally served on Elmer G. Mallory, one of said defendants, on September 28, 1898, by Alex. T. Stewart, constable. Summons not served on George E. Mallory, one of said defendants, and alias issued, returnable at my office in the city of Port Huron on October 12th, 1898, at 8 o’clock a. m. Summons returned personally served on George Mallory, one of said defendants, on October 6th, 1898, by Alex. T. Stewart, constable. Fees, 45 cents.
“October 12th, 1898, at 9 a. m., case called. Plaintiff present by John L. Willoughby, who proves his authority to appear under oath. Defendants not present, nor either of them. After waiting one hour and defendants not appearing, plaintiff declares orally on common counts in assumpsit, and especially on a certain promissory note, which is herewith filed as part of declaration, and claims damages $300.00 or under. John L. Willoughby sworn for plaintiff (for testimony see'justice’s notebook). Thereupon, after hearing all the evidence, the court rendered judgment in favor of the plaintiff and against the defendants for twenty-one dollars and twenty cents damages and $2.55 costs.
“Carl A. Wagner,
“ Justice of the Peace.
“ Dated October 12, 1898.
“Damages, $21.20; costs, $2.55.”

The defects in this transcript which are relied upon are:

1. That it fails to show that the plaintiff appeared upon the return day of the summons, or requested that an alias summons be issued, and that, therefore, the court lost jurisdiction, and the subsequent proceedings were void. '

2. That the docket fails to show an appearance by the plaintiff on October 12th within the hour, and that, if the court had jurisdiction to issue the alias, it was lost by his failure to call the case and plaintiff’s failure to appear before 9 o’clock.

According to the record, George E. Mallory was not served with the original summons, but was served with the alias. The police court being a court of limited jurisdiction, its jurisdiction must affirmatively appear upon the record, or the judgment may be treated as void. The plaintiff is not shown to have appeared upon the return day, and, as the statute (1 Comp. Laws, § 957) requires that the time of the appearance of the parties be entered, we must assume that no one appeared upon the return day, and the failure of the plaintiff to appear worked a discontinuance of the case, and ousted the court of jurisdiction. See Redman v. White, 25 Mich. 526; Brady v. Taber, 29 Mich. 200, — where it was held that a failure of the plaintiff to appear ousts'a justice of all jurisdiction; Johnson v. Dexter, 38 Mich. 695. In Mudge v. Yaples, 58 Mich. 307 (25 N. W. 297), it was held that the docket must show affirmatively that the plaintiff appeared on the return day of the summons within one hour of the time fixed therein, and that otherwise the judgment is void, and that oral evidence is inadmissible to show jurisdiction in such a case. Post v. Harper, 61 Mich. 434 (28 N. W. 161).

It is contended that the alias summons may be treated as the commencement of another action. The transcript states that this alias summons was made returnable on October 12th at 8 a. m., but fails to state when it was issued. The law requires the docket to show the time when the first and subsequent process was issued, and the particular process issued. 1 Comp. Laws, § 957. There is no way of telling from the docket when it issued, and it negatives the claim that it was original process.

The action was brought before a police justice of Port Huron, whose jurisdiction is fixed by the charter. See Act No. 445, Local Acts 1897, chap. 14. Section 16 provides that, “before any civil action or proceeding * * •* shall be commenced in said justice’s court, there shall be filed * * * a praecipe for the writ desired, and * * * at the same time the sum of one dollar shall be paid to the clerk.” Whether the filing of said prcecipe or payment of said fee should be held jurisdictional need not be discussed, for the case must be disposed of on other grounds. If this summons is to be treated as an alias summons, it is void, for the reason that the suit abated by the failure of the plaintiff to appear on the return day and demand it. If it might be treated as an original summons in contravention of the docket, the judgment is still void upon its face, because it omits to comply with the statutory requirement as to the entry of the time when the process was issued. This is more than an irregularity. It renders the judgment of the magistrate void, and, the defect appearing upon the face of the transcript judgment, advantage may be taken of it in this proceeding. The sheriff’s deed is a cloud upon complainant’s title, and he is entitled to have it removed.

The decree is reversed, and a decree will be entered in this court in accordance with the prayer of the bill, with costs of both courts.

The other Justices concurred.


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    CLEVELAND v. ROTHSCHILD.
    1. Pleading — Assumpsit—General Issue — Release.
    Evidence of a release, which was in effect a payment or satisfaction of plaintiff’s claim, was admissible in an action of assumpsit under a plea of the general issue, filed before the adoption of Gir. Ct. Rule 7.

      2. Trial — Evidence—Question for Jury.
    Where defendant’s testimony tended to establish a release, and plaintiff’s that the arrangement was not concluded and the release never delivered, the question was one of fact for the jury.
    Error to Wayne; Brooke, J.
    Submitted January 6, 1903.
    (Docket No. 5.)
    Decided April 7, 1903.

      Assumpsit by William H. Cleveland against Sigmund Rothschild to recover the purchase price of certain corporate stock. From a judgment for defendant on verdict -directed by the court, plaintiff brings error.
    Reversed.

      Tarsney & Fitzpatrick, for appellant.

      Chamberlain & Guise, for appellee.
   Hooker, C. J.

Plaintiff brought this action of assumpsit to recover $5,000, which he claims to be his due from the defendant as the purchase price for an interest in a stone quarry sold by him to the defendant.

The defendant pleaded the general issue in 1896, and the following writings were offered and received in evidence :

“For certain valuable considerations granted me by Sigmund Rothschild, of the city of, Detroit, I do hereby release said Rothschild from all personal obligation and liability in connection with the affairs of the Cleveland Stone Company of the city of Detroit.
“W. H. Cleveland.
“Dated Detroit, Feb. 28, 1894.”
“ For a valuable consideration to me in hand paid by W. H. Cleveland, of the city of Detroit, I do hereby agree to procure and deliver to said Cleveland from Charles Scheuer, of the city of New York, who, under judicial process of a court of the Dominion of Canada, and by virtue of a certain bill of sale executed by the Cleveland Stone Company of Detroit to said Charles Scheuer, is now in possession of the stone-crushing plant, property, and business of the said Cleveland Stone Company, an option or agreement, running until the 1st day of May next, for the sale and delivery to said W. H. Cleveland of the above-mentioned property and business, free from all indebtedness, upon the payment to me of the sum of fifteen thous- and dollars in cash Ox approved paper, as said Cleveland may elect, said paper payable in one and two years from this date, with interest at 6 per cent, per annum.
“Sigmund Rothschild.
“ Dated Detroit, Feb. 28, 1894.”

There was testimony tending to show that these papers were delivered on the day of their date. Defendant also, introduced the following letter and telegram:

“ Detroit, March 5, 1894.
“Sigmund Rothschild, Esq.,
“New York.
“Dear Sir: Went to your office this morning pursuant to your own appointment last evening, and was informed you had left on the 9:50 train for New York. Have just written you, care Hotel Savoy, that, as you impose another condition, in addition to those entered into between us, relating to the personal release of yourself from all personal obligation to myself in connection with our company affairs, and the securing of the option from Charles Scheuer for the sale and transfer of the property and business to me, viz., the withdrawal of the suit against Brown, that if you will wire Mr. Schott, or some other representative, to fix me for $1,500 for three or four months, I will withdraw said suit. And, if successful in disposing of the property, — negotiations to that end, however, must remain in abeyance until I hear from you, — this money-with my debt at the house shall be provided for, and possibly enough more in some shape to cover your personal loss in ■our enterprise.
“ I write this care of E. Rosenwald & Bro., in case the .letter to care of Savoy fails to reach you promptly.
“ Sincerely,
“W. H. Cleveland.”
“ Dated Detroit, Mich. Received at 42 East 59th St.
“ March 5, 1894.
“ To Sigmund Rothschild,
‘ ‘ Savoy Hotel:
“Will withdraw suit if wire fixing me fifteen (15) hundred four months to be returned. Letters mail.
“W. H. Cleveland.”

The plaintiff sought to show that the release'relied on by defendant came to his (defendant’s) hands during negotiations not completed, and was retained without right, and that there was in fact no delivery of the same. He also claimed that it was not admissible under the general issue, and that the court erred in directing a verdict for the defendant.

The most comprehensive question in the case is raised by plaintiff’s claim that the defense of a release must be specially pleaded, and was not admissible under the general issue. Tiffany’s Justice’s Guide, at page 191, is authority for the proposition that, “under this plea, any matter which shows that the plaintiff never had a cause of action, and also most matters in discharge of the action, are admissible;” and in a note (1) a release is mentioned as one of these defenses, on the authority of 1 Chitty, Pl. 478 (9th Am. Ed.); and Fulton Bank v. Stafford, 2 Wend. 486, where there is a statement to the effect that, “in assumpsit, the defendant, under the general issue, may give in evidence anything which shows that the plaintiff, at the commencement of the suit, had not a good cause of action, or that nothing is due; as payment, a release, accord and satisfaction.” The defense in that case was usury. Chitty admits that this is at variance with the rule that “ a matter of defense which admits the facts stated in the declaration, but avoids them, should be specially pleaded.” See 1 Chitty, Pl. 479. See, also, Id. 515, where it is said: “ In every species of assumpsit, all matters in confession and avoidance shall be specially pleaded; ex. gr., release, payment,” etc.

This court has frequently held that the plea of the general issue in civil actions traverses every material averment in the declaration which must be proved, and seems to have recognized the rule that matters of avoidance should be pleaded specially. Kinnie v. Owen, 1 Mich. 249; Ingalls v. Eaton, 25 Mich. 32; Rawson v. Finlay, 27 Mich. 268; Edwards v. Chandler, 14 Mich. 471 (90 Am. Dec. 249); Osborn v. Lovell, 36 Mich. 250; Wilson v. Wagar, 26 Mich. 452; Snyder v. Willey, 33 Mich. 483; Grieb v. Cole, 60 Mich. 397 (27 N. W. 579, 1 Am. St. Rep. 533); Dean v. Chapin, 22 Mich. 275; Hill v. Callaghan, 31 Mich. 424; Hovey v. Sebring, 24 Mich. 232 (9 Am. Rep. 122); Reynolds v. Kent, 38 Mich. 246; Child v. Manufacturing Co., 72 Mich. 623 (40 N. W. 916).

We have little doubt, however, that the rule as stated by Tiffany has been accepted by the profession generally as the rule in this State. It is settled that payment may be shown under a plea of the general issue. Olcott v. Hanson, 12 Mich. 454; Burt v. Olcott, 33 Mich. 179; Huntoon v. Russell, 41 Mich. 316 (2 N. W. 38); Brennan v. Tietsort, 49 Mich. 398 (13 N. W. 790).

On the other hand,'the only cases brought to our notice where releases have been offered are those of Rawlings v. Cole, 67 Mich. 431 (35 N. W. 66), and Field v. Plummer, 75 Mich. 437 (42 N. W. 849). The first of these was an action against two signers of a note. Under a plea of the general issue, one sought to show that he was only a surety upon the note, and that “ he was released from any liability on said note by reason of a contract made by plaintiff with his codefendant to extend the time of payment.” It was held that the defense should have been specially pleaded. In the other case defendant was sued upon a judgment rendered in Illinois. Under a plea of the general issue he offered to show that he was a surety, and that, many years before, the plaintiffs had agreed not to enforce the judgment. It was held that this defense should have been pleaded.

It is a noticeable fact that in neither of these cases was .there any claim of payment or performance of defendant’s undertaking. In the present case defendant’s release is .apparently based upon a cgnsiderationy and was in effect a payment or satisfaction of the plaintiff’s claim. Payments are not always made in money. Anything may be accepted as a payment. It is only necessary that the parties so agree. A horse given and accepted in full of this debt would have been a payment, and it could be shown under the general issue. Here there was an executory contract for an option, which, according to defendant’s theory, was given and accepted as a satisfaction • of the debt. We are of the opinion that this testimony was admissible under the original plea, which was filed in 1896, before the adoption of Cir. Ct. Rule 7. As both parties and the court seem to have acted upon the assumption that defendant’s rights under the plea of the general issue were not changed in this case by the adoption of the rule, we do not discuss the question of its effect on pending litigation, or the addition, by way of amendment to such plea, of a notice of set-off.

■ Defendant’s testimony tended to establish the release or payment. This the plaintiff denied, claiming that the arrangement was not concluded and that the release never was delivered. This raised a question of fact, and should have been submitted to the jury. We do not overlook the contention of defendant’s counsel that letters written by 'the plaintiff after February 28th are inconsistent with this claim and disprove his oral testimony, but we think that these are matters that should have been left to the jury.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Montgomery, J.

text:
    AUDITOR GENERAL v. CHASE.
    1. Taxes — Sale op Lands — Objections—Appeal.
    On an appeal from a decree directing the sale of lands for taxes, only such objections will be considered as were made on the hearing to enforce the tax.
    2. Public Improvements — Special Assessments — Intention op Council — Appropriation Bill.
    Where a charter provision requires the common council, before levying a special assessment for an improvement cos'ting more than 53,000, to set forth its intention in the preceding annual appropriation bill, the fact that an improvement costs more than was set forth in the appropriation bill does not render the tax void.
    3. Same — Repaving—Change oe Grade.
    Under a charter providing that, when a street shall have been graded and paved at the expense of the abutting property owners, such property owners shall not be liable to any special assessment occasioned by any subsequent change of grade in such pavement, unless such change is asked for by a majority of the lot owners, such property may be assessed for the expense of repaving without such request, though a slight change of grade is made, incidental to the kind of paving material used.
    Appeal from Oakland; Smith, J.
    Submitted January 9, 1903.
    (Docket No. 28.)
    Decided April 7, 1903.
    Petition by Perry P. Powers, auditor general, for the sale of land delinquent for taxes: On objections filed by Mary A. Chase. Prom a decree for petitioner, defendant appeals.
    Affirmed.

      LI. M. Zimmermann and M. F. Lillis, for petitioner.

      Patterson & Patterson, for defendant.
   Montgomery, J.

This is an appeal from a decree directing the sale of lands for taxes. The tax objected to was a tax imposed upon defendant’s land for the paving of Saginaw street, in the city of Pontiac, in the year 1899. The objections set out in the pleadings are that the intention to make such pavement and expenditure was not set forth in the preceding annual appropriation bill; that no proper legal notice was given for a review of the special assessment; that the special assessments were not levied before the paving was commenced; that the change of grade and repaving of the street were not asked for by a majority of the owners of lots abutting on Saginaw street. These comprise the specific objections. In this court it is contended that the notice of the proposed pavement, and the district to be assessed, and of the time when the council would meet to hear objections, was insufficient. This is plainly not the objection stated in the pleadings. By section 13 of chapter 24, Act No. 215, Pub. Acts 1895, a notice is required of the meeting of the council and special assessors sitting as a board of review, which is the meeting referred to in the objection. No complaint appears to have been made as to the sufficiency of this notice. We have repeatedly held, of these proceedings, that only such objections as were made on the hearing to enforce the tax would be considered by this court. Auditor General v. Maier, 95 Mich. 127 (54 N. W. 640).

Section 16, chap. 30, Act No. 215, Pub. Acts 1895, as amended by Act No. 136, Pub. Acts 1899, provides that:

“No work or improvement to be paid by special assessment costing more than three thousand dollars shall be ordered commenced or contracted for, nor shall any assessment be levied therefor in any year, unless the intention to make such improvement or expenditure, and to defray the cost thereof by special assessment, was set forth in the last preceding annual appropriation bill: Provided, however, that this section shall not apply to any public improvement ordered by the council upon a petition of the owners of a majority of the lands liable to be assessed for the improvement.”

In September, 1898, the annual appropriation bill did give notice of an intention to pave Saginaw street between Jackson street and Oakland avenue, at a cost estimated at $40,000. Subsequently the expense turned* out to be some $70,000, of which the city assumed to pay something over $20,000, leaving nearly $50,000 to be raised by special assessment. It is contended that the council did not have jurisdiction to levy in excess of $40,000 in a special assessment for the purpose mentioned. We do not*-think this statute is susceptible of this construction. The fact that the council intended to enter upon the work is sufficiently set out in the annual appropriation bill, and the fact that it turned out later that the expense of the improve-meat was greater than was anticipated does not make it necessary for the city to wait another year before entering upon the contemplated work.

The meritorious question presented by the case is whether the levy is void because the improvement was not petitioned for by a majority of the property owners on Saginaw street. The village of Pontiac was incorporated in 1842, and continued as a village until 1861, when incorporated as a city. In .1855 the street in question was graded and paved. By the charter of the city of Pontiac, all rights belonging to the village of Pontiac, and all obligations, and all streets, alleys, rights, and privileges of said village, it is declared, shall be and remain, accrue, and belong to the city of Pontiac, so far as the same are not repugnant to this act. Section 6, chap. 22, Act No. 215, Pub. Acts 1895, provides that whenever any street, alley, or public highway shall have been graded, or pavement shall have been constructed in conformity to grades established by authority of the city, and the expense thereof shall have been assessed upon lots or lands bounded by or abutting upon such street, alley, or public highway, the owner or owners of such lots or lands shall not be subject to any special assessment occasioned by any subsequent change of grade in such pavement, street, alley, or public highway, unless such change be asked for by a majority of the owners of such lots or lands, but the expense of all improvements occasioned by such change of grade shall be chargeable to and paid by the city. It is contended that, under this provision, the city had not the authority to assess this tax against the defendant, because it appears that the improvement was not petitioned for by a majority of the property owners.

It is perhaps fairly to be inferred from the testimony that the street was paved with cobblestones in 1855 at the expense of the abutting owners, and, if we assume that this provision applies to such paving as had been done by the abutting owners at this time, the question is whether the case falls within the provisions of this statute. The power to pave and repave at the expense of adjacent proprietors, and to replace an insufficient pavement with new, appears not to be questioned, except as it be limited or restricted by this charter provision. Was this an assessment occasioned by a subsequent change of grade in the pavement laid down in 1855, within the meaning of this act ? We think not. The fair deduction from this record is that the pavement was deemed inadequate for present necessities and requirements; that it was deemed desirable to pave with asphalt. The action taken had reference to repaving. As an incident to such repaving, the actual grade, as it existed, was changed slightly, and in this way: With a cobblestone pavement, it appears that the crown of the street was higher than it need be .with a smooth, asphalt pavement, so that in the center the street was cut down, and the sidewalk line raised somewhat. As to the change in the grade, the surveyor testified that the only change in the grade was to get an even graduation of the street; and that is true with reference both to the center of the street and the curb line. It is confusing terms to say that this assessment was occasioned by-the change of grade in the pavement. The slight change which was made in the grade was-occasioned by the fact of the improvement of the pavement. The case is very similar in principle to that of O’Reilley v. Kingston, 114 N. Y. 439 (21 N. E. 1004).

We construe this limitation of authority above quoted as precluding á repavement made necessary by the fact that the grade of the street had been changed in so substantial a way as to do away with the former pavement, as by a large cut or fill. That is not this case. It is manifest that the necessity of repavement was determined by the council without any thought of any substantial change in the grade. That followed upon the determination as necessary in view of the character of the pavement adopted. We think the statute does not limit the authority.

The decree of the circuit judge directing a sale of these lands for taxes will be affirmed.

The other Justices concurred.


author: Moore, J.

text:
    WILLIAMS BROS. CO. v. HANMER.
    1. Chattel Mortgages — Accommodation Maker — Assignment to Subsequent Mortgagee.
    In'a suit by a second chattel mortgagee to enforce the assignment to it of the first mortgage, it is no defense that one of the mortgagors was an accommodation maker, where there is nothing to show that complainant had knowledge of it, and nothing in the mortgage to indicate such an understanding.
    2. Same.
    The owner of a second chattel' mortgage can compel the assignment to him of the first mortgage upon payment of the amount due upon it.
    Appeal from Missaukee; Chittenden, J.
    Submitted January 16, 1903.
    (Docket No. 57.)
    Decided April 7, 1903.
    Bill by Williams Brothers Company against Charles Hanmer, John Jollands, and Henry Jollands to compel the assignment of a chattel mortgage. From a decree for complainant, defendants appeal.
    Affirmed.

      Isaac G. Wheeler, for complainant.

      F. O. Gaffney, for defendants.
   Moore, J.

The bill of complaint was filed in this case to compel the defendant Charles Hanmer, a prior mortgagee, to assign the chattel mortgage held by him to the complainant, who held a subsequent mortgage on a portion of the property covered by said prior mortgage, and to have the property named in said prior mortgage not covered by said second mortgage bear one-half of the indebtedness secured by the prior mortgage.. From a decree in favor of complainant, the case is brought here by appeal.

The record discloses that on August 30, 1900, Henry Jollands and John Jollands and his wife gave to M. D. Newald a chattel mortgage on certain personal property to secure the payment of six notes, aggregating $325, which were signed by John Jollands and Henry Jollands, though they were referred to in the mortgage as signed by Henry Jollands. This chattel mortgage was a form in common use, and provided that in default of payment, or should the mortgagee deem himself insecure, the whole amount payable should become due and payable, and that the mortgagee might take possession of the property, and sell it either at public or private sale. On the 6th day of April, 1901, Henry Jollands made a chattel mortgage to Williams Bros. Company for $4=60.08, which covered some of the property covered by the prior mortgage. In this mortgage it was stated the property was free from liens and incumbrances, except a mortgage to M. D. Newald of $275 unpaid thereon. Some payments were made on each of these mortgages, but neither of them was paid in full. January 6, 1902, Mr. Hanmer, at the request of John Jollands, purchased the Newald mortgage, and it was assigned to him. Afterwards complainant tendered Hanmer $182, and demanded an assignment of the Newald mortgage, which was refused. He also offered to pay $91 for an assignment of the Newald mortgage with John Jollands’ property released, which was also refused. Hanmer offered, upon payment of $182, to assign the mortgage with John Jollands’ property released, which complainant refused.

It is the claim of John Jollands that, in signing the first mortgage and the six notes, he was an accommodation maker for the purpose of aiding his son, Henry, and that complainant knew it when it took the second mortgage, and that the debt secured by the second mortgage was the debt of Henry Jollands and one Freeman, and that he became liable to pay the Newald debt only if Henry did not, and that he at no time became liable to pay the Jollands and Freeman debt, and in equity ought not to be required to pay either debt. Complainant insists it had no knowledge that John Jollands claimed to be an accommodation maker of the notes secured by the mortgage, and that, when it took the second mortgage, it was informed of the the first mortgage, and the amount thereof, and that it covered property belonging to John Jollands, with which complainant was familiar, and that because of this information it regarded the second mortgage as fáirly good security, and so accepted it.

There is nothing in the first chattel mortgage to indicate that part of the property covered by it belonged to one of the makers, and part to the other, or to indicate that part of the debt secured thereby was to be paid by one of the makers, and another part by the other maker; nor was there any suggestion that one portion of the property must be sold before another. Whatever may have been the understanding between Henry Jollands and his father, John Jollands, as between Mr. Newald and John Jollands, anj between third parties and himself, he was bound by the written contract which he entered into. A lien was given upon the property covered by the first mortgage to secure the debt mentioned therein, and, as the debt had not been paid, the lien continued. See Woodruff v. Phillips, 10 Mich. 500; Payne v. Avery, 21 Mich. 524. * The right of a subsequent mortgagee to take over a prior mortgage is no longer an open question in this State. It is recognized in James v. Brown, 11 Mich. 25; Sager v. Tupper, 35 Mich. 134; Lamb v. Jeffrey, 41 Mich. 719 (3 N. W. 204); Moore v. Smith, 95 Mich. 75 (54 N. W. 701). When complainant tendered to Mr. Hanmer the amount due on the first mortgage, it had a right to have it assigned.

The decree is affirmed.

The other Justices concurred.


author: Grant, J.

text:
    GLINES v. STATE SAVINGS BANK.
    1. Banks — Insolvency—Depositors—Mala Fides.
    Circumstances sufficient to put a prudent man on inquiry are insufficient to charge a bank with knowledge that a check deposited in the usual course of business by another bank was received by the latter when insolvent; there must be such evidence as to show bad faith.
    2. Same — Directing Verdict.
    Where, in an action by the depositor of a check in an insolvent bank against a bank which had received it from the former bank, and paid out its proceeds on checks, there was no evidence that defendant did not act in good faith, a verdiet should have been directed for defendant.
    Error to Waynó; Frazer, J.
    Submitted February 5, 1903.
    (Docket No. 72.)
    Decided April 7, 1903.

      Assumpsit by Walter C. Glines against tbe State Savings Bank of Detroit for money bad and received. From a judgment for plaintiff, defendant brings, error.
    Reversed.
    Tbe plaintiff bad been a commercial depositor for from 12 to 16 years in tbe bank of A. Ives & Sons of Detroit. On Saturday, September 8, 1900, be deposited in said bank a check for $300 drawn upon Fleiscbmann & Co., of Cincinnati, Ohio. He received credit for tbis amount on tbe bank’s books and on bis own deposit book. Tbe deposit was made in the customary manner, and be .drew out none of its proceeds. A. Ives & Sons kept a depositor’s commercial account with tbe defendant, which they bad opened in May preceding. On tbe same September 8th, tbis check, with other items amounting to several thousand dollars, was deposited in tbe defendant’s bank, and due credit given therefor as cash. On tbe same day tbe entire amount was paid out on checks issued by A. Ives & Sons, except one, which was certified, and, on the following Monday, charged up to their account. On that day, September 10th, A. Ives & Sons opened their bank for business as usual. On said 10th of September they made another deposit with defendant, and drew out all but $30.40.
    On Friday, the 7th, or Saturday, the 8th, of September, two checks, aggregating $11,000, had been presented to A. Ives & Sons for payment, and payment refused for lack of cash on hand sufficient to pay them. These checks were held by the First National Bank of Detroit. For some time prior to May 1, 1900, the bank of A. Ives & Sons had been a member of the clearing house, of which the defendant was also a member. A. Ives & Sons then withdrew from the clearing house, borrowed $25,000 Of the defendant on a real-estate mortgage executed by Albert Ives, a member of the firm, and deposited the same in the defendant’s bank. On August 1, 1900, they borrowed $10,000 more from the defendant upon their note, secured by business paper of their customers, aggregating $23,940, and this also was deposited in defendant’s bank. Both were ordinary commercial deposits, and were drawn against in the usual manner. On the afternoon of September 8tli, after banking hours, A. Ives &o Sons and the First National Bank entered into ah agreement reciting the holding by said national bank of the two checks above mentioned, and providing:
    “ Whereas, the State Savings Bank of Detroit holds and is in possession of certain notes to the aggregate amount of $23,940, of which a list,, showing the date, the name of thé maker, the due date, and the amount of each of said notes, is hereto attached and made a part hereof, marked ‘Schedule A,’ which notes are held by the said State Savings Bank as collateral security for the payment of certain indebtedness and liabilities of the said A. Ives & Sons:
    “ Now, therefore, said A. Ives & Sons, being desirous of securing payment of the said checks held by the said First National Bank, in consideration of the premises, and of the agreement of the second party to hold said checks and to forbear presentation thereof five days after the date of this instrument, hereby assign, transfer, and set over to the said First National Bank, trustee, subject to the rights of said State Savings Bank therein, all their right, title, and interest of, in, and to the said notes held by the said State, Savings Bank as collateral, and described in the said schedule, and all renewals heretofore or hereafter made thereof.”
    This agreement was carried out, and the defendant, after paying itself the loan of $10,000, turned over the remainder of the collateral to the First National Bank.
    A. Ives & Sons kept their bank open about two hours on Monday, September 10th, then closed its doors, and went into voluntary bankruptcy.
    After the withdrawal of Ives & Sons from the clearing house, the First National Bank required the Certification of the checks of Ives & Sons given in payment of items drawn on them coming through the First National Bank. This was in pursuance of a general rule by which that bank required the certification of all checks given in payment of items which it received against any one not a member of the clearing house. Numerous checks drawn by Ives & Sons on the State Savings Bank during the months of August and September were put in evidence, including a few drawn in favor of the First National Bank, and a considerable number in favor of other banks • of Detroit. Of these, the First National Bank checks were certified, as well as a few others, but a large proportion of the checks drawn in favor of the Detroit banks were uncertified. Certain of these certified checks were dated in August, 1900. As to these, the cashier of the First National Bank testified:
    ‘ ‘ The reason these checks were certified was that they were given in payment of checks that were put in our bank by depositors upon which we had a claim, which was surrendered when we delivered the checks to Ives. We would not surrender them to any bank and release the claim that we had against those checks without a certified check or the cash. It wouldn’t make any difference who it was, whether a member of the clearing house or not, and it was in conformity with that custom or requirement these checks were certified.”
    After such withdrawal, checks upon A. Ives & Sons were presented at their own bank, and were paid in cash or in checks on the defendant, the larger checks being usually paid by checks upon the defendant. As to the reason for withdrawing from the clearing house, Albert Ives testified: “I suppose we left the clearing house because it was expensive, and we could get along cheaper.” Butler Ives testified:
    ‘•‘We went out of the clearing house because I did not like its methods. I had been fighting it for a number of years. We made weekly statements, and I think the only other statement made was an annual one. The chairman of the clearing house called on ns for a detailed statement of our bills receivable, and in our statement to the house we showed a balance of about $200,000. This was made up of bills receivable on hand, cash, bank accounts, and general items. The clearing house committee called on us for a detailed statement ,of our bills receivable, and I objected to it. As things have turned out, all of this $200,000 was not good, but we supposed then most of it was.”
    The cashier of the First National Bank testified that he did not know why Ives &' Sons left the clearing house, and that he thought it was entirely voluntary.
    It is conceded that the bank of A. Ives & Sons was insolvent on September 8th, and had been for some months previous. Both Albert and Butler Ives testified that they then believed that they were solvent.
    On hearing of the failure of A. Ives & Sons, plaintiff telegraphed to Fleischmann & Co. to stop payment. The check was protested, but was subsequently paid to defendant. Plaintiff made demand upon defendant for payment of the money received on the check, which was refused, and this suit was then brought. The defendant introduced no testimony. The court submitted the case to the jury under the following instructions:

      “I charge you that if, at the time this draft was received by Ives & Sons, they knew of their condition, of their inability to pay it, if at that time they were bankrupt, and knew it, and took that money under those circumstances, it was a fraud upon the part of Ives & Sons as against Glines, the plaintiff, and that he would be entitled to recover from them that money, or the proceeds of that draft, on account of such fraud as that having been perpetrated upon him by Ives & Sons.
    “It appears that this check or draft, whatever it was, was deposited by Ives & Sons with the State Savings Bank, and that they received it as a deposit from Ives & Sons, and became the custodians of that draft. Now, they had a perfect right to receive this draft, if they received it in good faith, without knowledge, or without circumstances coming to their knowledge that would put them upon inquiry, as to the condition of Ives & Sons’ Bank; that is, that they had not such knowledge that would put a reasonable man on his guard as to the condition of the bank, or the fraud that had been perpetrated by Ives & Sons, if you shall believe a fraud had been perpetrated. If they were bona fide holders of this draft, if they did not know this condition, or if there were not facts and circumstances brought to their knowledge that should put a reasonable man upon inquiry as to whether a fraud of this kind had been perpetrated or not, then they would be entitled to hold that check and to have the proceeds of it, because then they would be entirely innocent of. any wrongdoing or fraud in the matter; and if they are not parties to, and did not have knowledge of, or were not possessed of such facts as would put a reasonable man updfi his inquiry as to, this fraud, then the verdict in this case ought to be for the State Savings Bank, and not for the plaintiff in this suit. But if they did know of this fraud, or were parties to it, or were in possession of such facts as would put them fairly upon their inquiry in regard to the condition of this bank or the perpetration of this fraud, and they took it with that knowledge, then they would hold it under no better or stronger circumstances than Ives & Sons would; and that is the whole question for you to determine in this matter. ”
    Plaintiff recovered verdict and judgment.

      Walker & Spalding, for appellant.

      A. F. Wileox, for appellee.
   Grant, J.

(after stating the facts). A. Ives & Sons were in fact insolvent. Plaintiff received no consideration from them for the transfer and deposit of the check. Whether they knew, or should have known, that they were insolvent, or whether they had no reasonable ground for expecting to repay the plaintiff, it is not necessary to determine. We will dispose of the case upon the question whether there is any evidence in the record to hold the defendant liable on the ground that it had knowledge of such facts as to show it to have been a mala fide purchaser of the check.

Checks are deposited as cash, pass current as cash, the amount thereof paid out by the bank as cash, and the same check is often used to liquidate several debts. Oftentimes the holder of a check obtains cash for it from a bank instead of depositing it.

Plaintiff seeks to hold the defendant liable under Mace v. Kennedy, 68 Mich. 389 (36 N. W. 187), and Goodrich v. McDonald, 77 Mich. 486 (43 N. W. 1019). Those were cases of fraud in the execution of promissory notes. They recognize the rule that whenever a note is based upon fraud, or is void as between the original parties, the burden of proof is then upon the holder to show himself to be a purchaser in good faith. These same cases, however, and many others, recognize the rule that, where there is nothing upon the face of the promissory note to cast suspicion upon it, it is valid in the hands of a holder for value, without evidence that he took it under circumstances which render him guilty of bad faith. It is not enough that the circumstances be suspicious, or sufficient to put a prudent man upon inquiry; they must be such as to show mala jides on his part. Stevens v. McLachlan, 120 Mich. 285 (79 N. W. 627), and authorities there cited; Davis v. Seeley, 71 Mich. 209 (38 N. W. 901).

The fact that one of the firm of A. Ives & Sons borrowed money of the defendant, and gave security for it, is no evidence of insolvency or of bad faith. Neither was it a circumstance sufficient to put the defendant upon inquiry. As the circuit judge very tersely said in his instructions to the jury, “ It was evidence of good common sense, and no evidence of fraud.” The fact that A. Ives & Sons had withdrawn from the clearing house, if known to the defendant, as it probably was, is no evidence of fraud, or of the insolvency of Ives & Sons. The custom of the First National Bank, and, in some instances, of some other banks, to require certified checks, constituted no notice to the defendant that Ives & Sons were insolvent, that they were engaging in fraudulent transactions, and that the paper received from them was liable to be tainted with fraud. The business in these banks had for months been done in the usual manner, — A. Ives & Sons making deposits and checking out. There is no evidence whatever to indicate that the defendant did not act in the utmost good faith. It had no notice that the plaintiff was a depositor at the bank of Ives & Sons, or whether the check had been deposited or had been cashed. It was conclusively proven by plaintiff’s own witnesses that this check was deposited as cash with the defendant in the usual course of business; that on the same day the defendant paid out its proceeds on A. Ives & Sons’ checks; that it then forwarded it for payment; and that it made no profit what-' ever by the transaction. These facts fully satisfied the law which casts the burden of proof upon the holder of commercial paper tainted with fraud to show good faith, and it was the duty of the circuit judge to direct a verdict for the defendant. See Fredonia Nat. Bank v. Tommei, 131 Mich. 674 (92 N. W. 348).

This disposal of the case renders it unnecessary to discuss any other questions.

Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    FITZGERALD v. CITY OF BENTON HARBOR.
    Appeal — Retrial—Former Decision — Law of Case.
    Where, in a case which has been reversed and a new trial had, the record discloses no different questions or evidence than upon the first trial, the former decision is the law of the case.
    Error to Berrien; Coolidge, J.
    Submitted February 17, 1903.
    (Docket No. 82.)
    Decided April 7, 1903.
    Case by Edith Navarre Fitzgerald against the city of Benton Harbor for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Humphrey 8. Gray (George M. Valentine, of counsel) , for appellant.

      Gore & Harvey, for appellee.
   Grant, J.

A statement of this case, both as to the facts and the principles of law involved, is found in 126 Mich. 618 (86 N. W. 138). The case has been again tried, resulting in a verdict for the plaintiff, and it is again before us for review.

The learned counsel for the defendant do not point out wherein the record in the present case differs from that in the former, and make no claim that it does. A comparison of the briefs and records shows that they are substantially the same. Counsel argue the same points, substantially, that were argued before. We said in-the former case that it was “ a close one on its facts,” but held that there was evidence on the question of the negligence of the defendant and the contributory negligence of the plaintiff sufficient to justify its submission to the jury. The witnesses for the plaintiff were the same on both trials, and it is not claimed that any witness testified differently upon the second from what he did upon the first. Upon the former trial the court directed a verdict for the defendant when the plaintiff had rested her case. Upon the second trial the defendant introduced testimony to meet the case made by the plaintiff. Plaintiff, under the former decision, was entitled to have the case submitted to the jury upon her theory of the case, which we then held to be sufficient to warrant its submission to a jury. On all questions there decided that decision is the law of the case. It was submitted to the jury by the court in accordance with that decision, and we think correctly. There is no important' principle involved which requires an extended discussion.

The judgment is affirmed.

The other Justices concurred.