text:
    William W. Smith v. Preston Mitchell.

      ■Assignment for the benefit of creditors : exception of exempt property.— An assignment for tlie benefit of creditors is not void on its face for excepting property exempt from execution without specifying it. A bona fide selection is as practicable bore as under a levy.

      Interference with the property by the assignor. — Where a general assignment for the benefit of creditors was assailed as fraudulent, it was held, that evidence that, at the time it was mado, goods were at a railroad depot, directed to the assignors, [which they claimed and disposed of afterwards, was competent, as having a bearing on the good faith of the assignment.
    Evidence that said goods were afterwards sold with the knowledge and assent of the assignee, is competent, as tending to establish fraud.

      Conversion: proof of auction sales as evidence qf value. — Evidence of what the property brought at an auction sale made shortly after the alleged conversion for which suit is brought, is competent as having some tendenoy to prove its value.

      Conversion: evidence of prior 'liens. — Trover by assignee for property levied upon by defendant by virtue of executions against the assignor. Held, that evidence on behalf of defendant, that property levied upon was held and sold under a former levy, was admissible, to show that defendant had not damnified the plaintiff, and had not converted the goods.
    Held, also, that evidence that goods levied on were held and sold for railroad charges which were a prior lien, would discharge defendant from any liability on account of the goods so sold; firsts because showing that they were incumbered to their value; and second, because showing that he never took or converted them, the lien being adverse, and he never completing his levy by possession.

      General assignment must "be of all the property. — A voluntary assignment for the benefit of creditors, purporting to ho general, is void, if it does not fairly and bona fide assign all of the assignor’s property which is liable for the payment of his debts.

      Heard April 15th.

      Decided December 5th.

    Error to Calhoun Circuit.
    Mitchell brought suit in trover, to recover the value of certain furniture, which he claimed under a general assignment made to him by Increase A. &. William H. Pendleton, composing the firm of I. A. Pendleton & Son, for the benefit of their creditors, and which defendant Was alleged to have converted to his own use on 24th 'August, 185*1, the date of the assignment. Defendant justified taking the property as constable, by virtue of executions issued against the Pendletons.
    On the trial, the assignment was offered in evidence. It purported to assign ct all of our stock in business, goods, chattels,, merchandize, hills, bonds, notes, hook accounts, claims, demands, and the securities taken for the same» except, however, onr household furniture and property exempt by law from execution. The same being enumerated and set forth' in a schedule hereto to he attached, marked schedule A.” Defendant objected that the assignment was void on its face, for the reason that the exempt property was not set apart from the stock, nor reserved, but was to be set apart by a schedule to be attached: but the Court overruled the objection.
    The schedule of property attached to the assignment mentioned, among other things, “bill of chairs at depot, invoiced at $217.50, and freight to be deducted.” This was the only property described as being at the depot, and no moss was mentioned in the schedule. I. W. Wilder, a witness for the plaintiff, testified that the assignment was executed in his presence. “ Schedule was made, and I think attached to the assignment at the time — am not positive about it. The schedule was with the assignment, and it is my impression it was attached to it at the time. I. A. Pendleton, Preston Mitchell and myself were present at the time. Mr. Pendleton pointed out the furniture to Mitchell, and they walked around and looked at it. There was some conversation between them about the value of some of the articles. Mitchell went on giving directions to Pendleton for letting the property remain where it was. Account books and papers were taken from the desk by Pendleton, and Mitchell took some of them and looked at them, and handed them back to Pendleton, or laid them on the desk before him, and Mitchell gave directions as to opening or keeping new accounts of business. I don’t think the intimation was very definite; r the purport of it was to keep business separate from the old, Pendleton stated that he delivered the property to Mitch, ell: when Pendleton mentioned the property at the depot, Mitchell made some reply about its remaining there. The freight was not paid on that. Papers purporting to be invoices of the property at depot were handed to Mitchell.’’
    On cross examination he said; “Mitchell went to the shop with me, and the assignment was signed by one, I think by both, there; books taken down appeared to be account books used in the shop; don’t recollect any other books; papers purporting to be invoices of property at the depot were taken down; other papers folded up like accounts or notes were taken down; my impression is Mitchell looked them over, and it is my impression Pendleton put them back; I saw young Pendleton at the shop before I left. There was some varnish, whitewood lumber, cherry and black walnut there, which Pendleton claimed exempt, and said he was going to work. I think there were two kegs partly full of varnish ; may have been three. On being asked, what directions did Mitchell give? he answered; he told I. A. Pendleton to take care of the property, books, papers, &c., and sell what he could, but not on credit; directed the goods at depot to be brought up as soon as money enough should be realized to pay the charges. All three, Mitchell, I. A. Pendleton & Son, were present at the time assignment was delivered. Heard Pendleton tell Mitchell there was the key; Mitchell told Pendleton to keep it. Mitchell had started towards the door; I did not see the key.”
    I. A. Pendleton testified, that he was of the firm of I. A. Pendleton & Son; that he was at shop at time referred to by Wilder; that articles were pointed out to Mitchell, the assignee, and moved in some instances in the shop so Mitchell could view them; all the property was in the sales room except that at the depot; books and papers laid on the desk and pointed out to Mitchell; of the goods at depot, Mitchell said the goods must remain at depot until money was realized to pay freight, which was something over $40. Invoices of goods at depot were given up to Mitchell; witness gave him up the key; that it was his impression Mitchell took the key to the shop; Mitchell told him he must stay there in the shop, as his business was such he, Mitchell, could not. Mitchell gave him general orders to collect. Mitchell owned the building the goods were in. Witness gave up possession to Mitchell when he made the assignment. He occupied it under Mitchell, but has not occupied it as his lessee since. Said he did not sell anything before the levy made by defendant, some three or four days after the assignment. That Mitchell went out after goods were shown as above, that he came in the next morning, was there a moment or two, and his impression is he was there every day. That I. A. Pendleton & Son had no moss at the depot at the time of the assignment that witness was aware of.
    W. H. Pendleton also testified, that the firm had no moss at the depot, to his knowledge, at the time of the assignment.
    The plaintiff’ having rested, the defendant offered in evidence the executions under which he justified, with indorsements thereon showing levies on the property in controversy, and returns of public sales of some of it, made since the commencement of the present suit. ¿The returns were objected to by the plaintiff, and excluded by the Court.
    . The defendant then proved by James A. Way that, during the year 1857, he was an agent of the Michigan Central Railroad Company, and had charge of the freight office and depot at Marshall; and the defendant then offered to prove that there were two bales of moss of the value of $50 at said depot, on the 23d and 24th days of August, 1857, directed to I. A. Pendleton & Son, and afterwards claimed by them, and one of them taken away on the first day of September, 1857.
    But to the introduction of such testimony, the plaintiff objected, and insisted that the same was irrelevant, .and that the assignment did not cover that property; that it did not appear that I. A. Pendleton &> Son ever ordered any such property, or property of that kind, but the contrary ; and if there was any property of that kind there it does not appear whether it was there for them, or that the assignee knew or had any knowledge or notice of it. The Court sustained the objection, and the' defendant excepted.
    The. defendant then offered to prove by another witness, that I. A. Pendleton, on the first day of September, disposed of one bale of moss above referred to, at the depot, in payment of a debt of I. A. Pendleton & Son, and paid said debt in full, and under such circumstances as to leave no doubt it was done with the knowledge and consent of the assignee. To such testimony the plaintiff objected, for the reason the defendant did not offer to show the property was covered by the assignment, and that it was anticipating the conclusion of the jury upon circumstances proposed to be proved, and that such proposition does not directly show that such transfer and payment was with the knowledge and consent of the assignee; and the objection was sustained by the Court.
    The Court at the same time informed the defendant’s counsel, that if they proposed to show that the assignors, or either of them, disposed of any of the assigned property after the assignment, with the consent of the assignee, they might show it.
    The defendant then offered to prove by another witness, that the' property mentioned in plaintiff’s declaration was fairly sold at public auction, in the month of September, IBS'!, at a constable’s sale duly advertised according to the statute, at Marshall, and what prices the said articles brought at such auction, for the purpose of showing the value of the article?. This evidence was objected to as irrelevant, and rejected by the Court.
    The defendant further offered to prove a prior levy on the property to that made by himself, by virtue of another execution against I. A. Pendleton & Son, and that the officer making the same took from him a large share of the property levied upon, to the value of two hundred dollars, and that the defendant never sold the same. This testimony was also rejected as irrelevant.

      The defendant further offered to prove by the witness Way the amount of freight and charges on the goods at the depot, that a portion of them, referred to in the assignment, were openly and fairly sold at public auction, after five days ¡Dublic notice, in April, 1858, to pay freight on the same, and charges of Michigan Central Railroad Company, and what price or prices they brought at such sale. The plaintiff objected to such evidence as irrelevant, .■and that it was 'incompetent to show what was done with the property after the taking by the defendant; also that it was an improper method of showing value if allowed with that view; also, that such sale, if any was made, was after the commencement of this suit. The Court sustained the objection.
    The evidence being concluded, the defendant requested the Court to charge the jury, that the assignment is void on its face, for the reason that it leaves the property under the control of the assignors, to the extent of the exemption, said exempt property not having been set apart previous to such assignment; also that if the jury shall find that the assignors did not- fairly, bona fide assign all their property liable for the payment of their debts, then the assignment is fraudulent and void against the defendant, who stands in the place of a creditor. Which requests were declined by the Court. The Court did charge, among other things, that if the jury should find that the assignment was made with the intent, on the part of the assignors, to hinder, delay or defraud creditors, then the same is void, whether the assignee knew of such intent or not.
    The jury returned a verdict for the plaintiff.

      W. S. Brown and O. I. Walker, for plaintiff in error:
    1. The defendant below offered in evidence his own return on the execution, by virtue of which he levied -on the property, to show what disposition was made of the property seized.
    This was an official act by defendant, under his oath of office, and from the nature of the case, and its necessity, Is admissible, even as against third parties, although made ■after action brought: — 3 Cow. & Hill’s Notes, 1083-6; 18 Vt. 67; 6 Fost. 99; 11 Fost. 9.
    2. We submit that the Court erred in rejecting the ■evidence as to the moss at the depot. It seems that plain, tiff below had offered evidence that the assignors had no ■moss at the depot. Defendant offered evidence, tending to prove that they had such moss, and that, within a few •days after the assignment, they, the assignors, disposed of it for the purpose of paying a particular debt, under such circumstances as to leave no doubt that it was done with the knowledge and consent of the assignee.
    The testimony certainly tended to show that the assign' ors had certain property belonging to them, and covered by the assignment, which was not mentioned in the schedule, and which they disposed of for their own purposes after the assignment, with the assent of the assignee; and so far had a tendency to prove the assignment to be ■fraudulent in its character.
    The error is in no way cured by the subsequent offer •of the circuit judge. The offer is sophistical, and does not meet the proposition made. He will permit it to be proved 'that the assignors disposed of assigned property. But the Very thing in controversy was, whether this was assigned property, and this was a question for the jury.
    3. The Court clearly erred in excluding the testimony •offered for the purpose of showing the price for whioh the articles sold, at a fair advertised sale, at public auction, by a constable.
    Such testimony, although not conclusive, is admissible; •and there is an especial propriety in its introduction, where the plaintiff is an assignee, whose duty it is to. dispose of the property promptly, and ordinarily in the same manner* Doug. 40; 3 C. & P. 344; 6 C. & P. 712; 9 B. & C. 696; Sedgw. on Dam. (1 Ed.) 502 ; 13 M. & W. 507; 2 Hilt. 137; 20 N. Y. 499.
    4. There was error in excluding evidence of a lien for-freight and charges, on a portion of the very goods in, controversy, by the R. R. Co., and that a portion was. sold to pay such lien: — 2 Greenl. Ev. § 635, note 2; 14 Pick. 361; 13 Met. 267 ; 20 Penn. 40; 9 Pick. 551.
    5. We submit that the offer to prove a prior levy on a portion of the goods, and the disposition of them there-, under, tended to contradict any conversion by the defendant. When he made his paper levy, they were in the possession, not of the plaintiff, but of another consta-, ble, by virtue of a levy, and that constable sold the goods,

      Mr. Brown further argued, that the exception in the assignment of “our household furniture and property exempt from execution” rendered it void. The exception was partnership property, because partnership property only had been assigned. And the construction of the assignment, must be, that no household furniture was assigned.

      H. A. &¡ D. G. Noyes and Hughes & Wboley, for defend-, ant in error:
    1. There are no illegal reservations in the assignment. It, excepts only such property as is exempt from execution. The evident intention was to convey all their property not exempt from execution.
    But even if the assignment is to be construed as except, ing household furniture liable to execution, its validity is not affected. It would be good and valid as a partial assignment: — Burr. on Assignments, 97; 13 S. & M. 22 ; 5 T. R. 420.
    Nor is it necessary that the exempt property should be specified: — Hollister v. Load, 2 Mich. 323.

      It was not allowable for the Court to say, that the assignment was void on its face, unless it contained 'such illegal provisions as are not reconcilable on any possible hypothesis with an honest intention; and if the instrument can by any possible construction be sustained, it is the ■duty of the Court to give it that construction: — Oliver v. Eaton, 7 Mich. 108; Gay v. Bidwell, 7 Mich. 523; Nye v. Van Husan, 6 Mich. 329.
    2. The Court correctly rejected the return of the defendant on the executions.
    All that was objected to, was the disposition which ■the defendant had made of the property since the commencement of this suit.
    3. The order in which proofs are to be received, must, ’ in jury cases, be left legally to the discretion of the Court; and it is the duty of the Court to compel counsel either to introduce their proof in such order that every part of it shall appear from the case itself to be relevant; or, if this is departed from, to require counsel when a fact, the relevancy of which does not appear, is offered, to give «orne assurance to the Court that they intend to connect the fact with the case so as to make it relevant: — l Greenl. Ev. & 57.
    The bill of exceptions shows that the facts offered to «how that the assignors disposed of assigned property were •offered as evidence in themselves, without anything to show the knowledge or assent of the plaintiff (assignee), and that the defendant substantially admitted that he could not charge the assignee with knowledge of the transaction. The Court laid down this rule:
    “That the defendant might show that the assignors, cr either of them, disposed of the assigned property after the assignment, with the consent of the assignee.”
    This rule, we insist, is the correct one; and the Court therefore, rejected the evidence, the defendant not being able to say that he expected to show such consent of the assignee.
    There is no error, then, unless the defendant was entitled to show the acts of the assignors after the assignment, done without the knowledge or consent of the assignee}; and upon this question the authorities are very clear and uniform: —Burr. on Assignments, 401; 6 Barb. 94; 1 Met. 10.
    4. The true rule of damages was the market price, and this could only be proved by the opinion of witnesses, and such transactions as go to make up the market value,. A sale on execution, whether of the same or similar pro-, perty, was not admissible. The price obtained at the execution sale is not itself the rule of [damages, and is too remote to be evidence of the market value: — 2 Pars. on Cont. 482.
    5. The Court did not err in refusing evidence that the-property, after it was converted by the defendant, was taken away from him, by virtue of a senior levy. The-Court properly refused to try any collateral issues between, third parties, and it is no excuse for one wrong doer that the property has been taken away from him by another,
    6. The sale by the railroad company, for freight, was. utterly irrelevant, either for the purpose of showing' market price or in mitigation. It may possibly have been com-, petent to show the amount of the lien on the goods for the freight, but it does not appear that this was refused,, and if it was, no error is assigned for such refusal.
    Y. The refusal of the Court to charge as requested must be taken in connection with what he did charge on the subject; and the whole instruction^ to the jury upon the subject were correct: — Burr. on Asst. 300 and 301.
   By the Court:

The assignment is not void on its face for excepting property. exempt from execution, without specifying it. A. bona fide selection is as practicable here as under a levy.

Evidence that goods were at the railroad depot, directed to the insolvent firm, which they claimed and disposed of after the assignment, was improperly excluded, as it had a bearing on the good faith of the assignment as a general assignment.

The sale of said property by the firm, and evidence showing the assignee’s knowledge and consent, should not have been excluded, as it bore upon the question of fraud.

Evidence of what the property brought at auction is admissible, as having some tendency to prove value.

Evidence that the property levied on was held and sold under a former levy, was admissible to show that the constable had not damnified the claimant, and had not converted the goods.

Evidence that goods levied on were sold for charges which were a prior lien, would discharge the constable from any liability on account of those goods, on two grounds: first, that they were incumbered to their value; second, that he never took or converted them; the lien being adverse, and he never completing his levy by possession.

The Court erred in not charging that the assignment was void if it did not fairly bona fide assign all of the assignors’ property liable for the payment of their debts.

Judgment reversed, and new trial ordered.


source: Caselaw Access Project

license: Public Domain

text:
    The People, on the relation of George W. Blair v. The Quartermaster General.

      Bounty : discrimination "between volunteers.— A man drafted into the United States service for nine months, but allowed to volunteer and to be mustered in for three years, is entitled to the State bounty offered to .volunteers. While the bounty is being paid, no discrimination can be made among those who come within the terms of the offer.

      Heard and decided December 5th.

      Motion for a mandamus.
    The relator, on the thirteenth day of May last, was mustered into the United States service as a volunteer in the fifth Michigan battery, for the full term of three years. Immediately previous to this he had been accepted and mustered in as a ’ substitute for a drafted man from this State, for the term of nine months.
    The State authorities were at this time offering a bounty of fifty dollars to each volunteer, under an act of the Legislature, approved March 6th, 1863 —Laws 1863, p. 60. The order of the Adjutant General under which this offer was made, directed the bounty not to be paid to drafted men or their substitutes; and the only question in the case was, whether the relator, having been accepted and mustered into the service in the place of a drafted man, for nine months, was entitled to the bounty on being afterwards accepted as a volunteer for three years, before the nine months had expired.

      MoMnson & JBroohs for the relator.

      A. Williams, Attorney General, contra.
   The Court held, that if the relator was allowed, after taking the place of a drafted man, to enlist as a volunteer, and was accepted and mustered in as such, the State authorities could not, in the matter of bounty, distinguish him from any other volunteer. While bounties were offered they must be paid without discrimination to all who came within the terms of the offer.

Mandamus granted.


author:
Manning' J.:
     Campbell J.:

text:
    George Richmond v. James H. Robinson and others.

      Xand contract: specific performance: failure to pay by the day. — A contract was made for the sale of lands, the payments to be made lo a third person who held a mortgage given by the seller. Payment was not made by the day, and. ',, the seller declared the contract forfeited. The purchaser subsequently paid the money to the mortgagee, but without the seller’s assent. It appearing that the land contract was designed to provide for the payment of the mortgage, it was held that, when that was done, as it did not concern the seller whether the mortgage was paid one way or another, the contract was to be regarded as substantially complied with.

      Failure to pay taxes. — By the contract the purchaser agreed to pay all taxes. The bill did not aver that he had done so. Held that, the purchase price having beeu paid, the seller ihad no concern with the payment of taxes, as he could not be compelled to warrant against them, and he did not aver or pretend that he had been made personally liable for them.

      Time, when essential-Time cannot be made essential in a contract merely by so declaring, if it would be unconscionable to allow it. Parties may stipulate to make it so, where the stipulation is reasonable ; but, as in stipulated dama* ges, if the stipulation is .not reasonable, courts will not regard it.

      Helcase of dower cannot be compelled.— The wife cannot be compelled to release her dower in lands which her husband has contracted to sell; and she is not u proper party to a bill by the purchaser for a specific performance.

      Heard November 6th, 1863.

      Decided January 8th.

    Appeal in Chancery from Ionia Circuit.
    The bill was filed by Richmond, who was assignee of Rufus K. Barlow, against Robinson and his wife, and said Barlow, to compel the specific performance of the following contract, and a conveyance of the land therein described, by Robinson and wife to complainant.
    “Articles of agreement made the thirteenth day of March, in the year of our Lord one thousand eight hundred and fifty-eight, between James H. Robinson of the county of I<j>nia, and State of Michigan, party of the first part, and Rufus K." Barlow of the county of Ionia, and State of Michigan, party of the second part, witnesseth as follows:
    “First. The said party of the first part, in consideration of the sum of one thousand dollars to be paid to the said party of the first part, and of the covenants to be performed by the said party of the second part as hereinafter expressed, hereby agrees to sell to the said party of the second part, all that certain piece or parcel of land known and described^in the government survey as the east one-half of the south west fractional quarter of section twenty-six, township five north, of range seven west, containing eighty acres more or less, with the privileges and appurtenances thereunto belonging.
    “ Second. The said party of the second part, in consideration of the covenants herein contained, on behalf of the said party of the first part, agrees to purchase of the said party of the first part the above described land, and to pay for the same to the said party of the first part or his legal representatives or assigns, the said sum of one thousand dollars lawful money of the United States, in the manner following, that is to say; fifty - four dollars and seventy-three cents the first day of September, A. D. 1858, to James H. Robinson. Three hundred and seventy-one dollars and ninety-three cents to George R. Weeks of Seneca county, Ohio, or his assignee, the twenty - third day of September, eighteen hundred and fifty-eight; two hun dred and eighty-six dollars and sixty-six cents to George R. Weeks or his assignee, the twenty-third day of September, A. D. 1859; two hundred and eighty - six dollars and sixty-six cents to George R. Weeks or his assignee the twenty-third day of September, eighteen hundred and' sixty, with the interest to be computed from the date of these presents, at and after the rate of seven per centum per annum on the whole sum that shall be from time to time unpaid and to be paid, both principal and interest annually to be paid.
    “And also that he will, so long as any part of the principal or interest of the said consideration money remains unpaid, well and faithfully in due season, in each and every year, pay or cause to be paid all taxes and assessments, ordinary and extraordinary, that may for any purpose whatever be levied or assessed on said premises Or on this contract, and that he will not commit or suffer any other person to commit any waste or damage to the said land or the appurtenances.
    “Third. The said party of the first part further covenants and agrees with [the said party of the second part, that upon the faithful performance by the said party of the second part of the covenants and agreements by him to be performed, and upon the payment, of the several sums of money before mentioned, and the interest thereon, at the times and in the manner and at the place before mentioned, to the said party of the first part, in person or by attorney duly authorized, that thereupon the said party of the first part will well and faithfully execute and deliver a deed of warranty of the above described premises, with the appurtenances thereunto belonging.
    “Fourth. It is further mutually covenanted and agreed by and between the said parties hereto, that the said Rufus K. Barlow may enter on the said land, and remain ^hereon and cultivate the same as long as he shall fulfil and perform all the agreements hereinbefore mentioned oh his part to be fulfilled and performed, and no longer; and .¡.hat if he shall hereafter at any time violate or neglect to fulfill any of said agreements, he shall forfeit all right or claim under this contract, and be hable to the said James H. Robinson for damages, and shall also be liable to be removed from the said [land in the same manner as is provided by law for the removal of a tenant that holds over after the expiration of the time specified in his lease. And it shall be lawful for the said party of the first part, at any time after the violation or non-fulfillment of any of said agreements on the part of the said party of the second part, to sell and convey the said land or any part thereof, to any other person whomsoever; and that the said party of the first part shall not be liable in any way, nor to any person, to refund any part of the money which he may have received on this contract, nor for any damages on account of such sale. And it is hereby expressly understood and declared that time is and shall be deemed and taken as of the very essence of this contract, and that unless the same shall in all respects be complied with by the said party of the second part, at the respective times and in the manner above limited and declared, that the said party of the second part shall lose and be debarred from all rights, remedies or actions, either in law or equity, Upon or under this contract.’’
    The • pleadings and evidenoe in the case are sufficiently stated in the opinion of Justice Manning. The Court below made decree for complainant as prayed.

      Blanchard cfi Bell, and O. I. Walker, for complainant,
    to the point that time is of the essence of the contract when there is an express stipulation to that effect: —11 Paige, 354. That when the general intention of the parties can be carried into effect the court relieves against any forfeiture:— Ibid. 358. That where a vendor has waived a forfeiture by receiving partial payments afterwards, he can not suddenly stop short and insist .upon a forfeiture for non-payment of arrears, without any previous notice of his intention so to do: — 8 Paige, 423; 3 Meriv. 84; 1 Johns Ch. 379 ; and that when such notice is given, the vendee should have a reasonable time afterwards to pay the arrears: — 8 Paige, 607; 5 Wis. 206.

      A. Williams, for the defendants Robinson and wife:
    1. The bill nowhere alleges the payment,of taxes, or the non - commission of waste or damage; and, therefore, wholly fails to show some of the essentials of the complainant’s right or title to what he claims by his bill.
    2. By the terms of the contract, it was “expressly understood and declared that time is and shall be deemed and taken as of the very essence of this contract.’^ And parties may contract on what terms they will, and may declare, if they think fit, that time shall be considered essential. Nor can courts any more dispense with punctuality as to time than with any other part of the agreement: Adams Eq. 88 and note; Story Eq. Juris. § 776 and note 1; 14 Pet. 172; 1 Johns. Ch. 378; 4 Ves. 686; 13 Ves. 225 ; 4 Mich. 570; 4 Bro. 469; 3 Madd. 440; Sudg. on Vendors, 286; 5 Ves. 520, note; 7 Paige, 22; 11 Paige, 352; 4 Sandf. Ch. 374; Ibid. 525.
    . 3. The bill fully discloses a default on the part of the complainant, with respect to the payment due September 23, 1859. But it nowhere alleges a waiver, or even a request of waiver of such default; which waiver, if made, is a part of the complainant’s case, to, be stated in his bill; and, if not stated, the defect can not be cured by proof, or defendant’s answer:— 6 Mich. 133; 7 Mich. 334; 8 Mich. 115; 11 Mich. 9.
    4. The allegation of tender or surrender of said notes and mortgage — a part of the complainant’s right or title to recover — is bad. The offer was to deliver them “ up. to the said James H. and Alma Robinson, on the execution and delivery by them to your orator, of a deed of the premises hereinbefore mentioned and described.’’ But Mrs. Robinson was not a party to the contract, or in privity with it, and was in nowise liable upon it. She had a right of dower, and could not thus, without consideration, promise, or engagement on her part, be required to join in such deed. No act of her husband, not assented to by her, could obligate her to do so: — 2 Doug. Mich. 141; 1 Mich. 1; 6 Mich. 470; 8 Barb. 618; 3 Paige. 483, 503.
    The tender, or offer of surrender of said note and mortgage, was, therefore, destroyed by the incorporation of an element or condition not promised in the contract, but wholly foreign to it.
    Weeks had no power to waive the forfeiture, or revoke the annulment of the contract. If Richmond paid, it was** with his eyes open, and at his peril; if Weeks received payment, it was without authority, and in violation of Robinson’s express and known directions: — 10 Wend. 88; 10 Wend. 156; 1 Hill, 145; 3 Denio, 321.
    In no event is the complainant entitled to a decree against Mrs. Robinson, requiring her to join in a conveyance of the premises to the complainant: — 6 Wend. 9; 10 Paige, 342; and authorities cited under 4th point supra.

   Manning' J.:

Bill for the specific performance of a contract for the sale of land. Robinson, being the owner of the real estate mentioned in the bill, on the 30th December, 1856, with his wife mortgaged the same to George R. Weeks, to secure the payment of three promissory notes, given by himself and wife to Weeks, on the 20th September, 1856, for $286.66 each, payable as follows: one on the 20th September, 1858, one on the 20th September, 1859, and one on the 20th September, 1860, with annual interest. On the 13th March, 1858, Robinson entered into articles of agreement with one Barlow, to sell and convey the mortgaged premises to Barlow, on Barlow’s paying Robinson $54.73 on the 1st September, 1858, and paying to Weeks the three promissory notes secured by the aforesaid mortgage, with interest from the date of the aforesaid articles of agreement. On the 6th September, 1858, Barlow assigned the contract to Richmond, who, on the 9th November following, paid, the first note due to Weeks, and on the 15th day of the same month paid to Robinson the $54.'73 going to him. On the 21st November, 1859, Richmond paid Weeks the further sum of $180. On the 12th April, 1860, Robinson served a written notice on Richmond of the forfeiture of the contract, and to quit the premises. Richmond afterwards, and in the same month, paid Robinson’s mortgage and notes to Weeks, and tendered them to Robinson, and demanded a deed.

Several questions were made on the argument which I will now proceed to consider.

Jñrst. That the bill is defective in not alleging payment of taxes, and the non - commission of waste; and that no decree can therefore be entered upon it. By the articles of agreement, the vendee was to have possession of the land, and was to pay all taxes and assessments, and not to commit or suffer waste or damage to the land. And on the performance by him of the covenants and agreements to be performed by him, the vendor was to convey. The bill does not allege the payment of taxes, or the non - commission of waste. This is the ground of the objection. No allegation of the non - commission of waste was necessary, as it required .no act to be done by the vendee, and the presumption of law in such cases is, that the party has not done the prohibited act. The payment of taxes stands on different ground, as it is an act to be done, and not one to be abstained from. It differs from the other acts to be done by the vendee, in that it s an undertaking to perform a public duty • for the vendor. The duty must, however, exist before the obligation arises. The land may not have been assessed, and the existence of a tax is therefore not to be presumed. It must be shown by way of defense; and payment need not be averred in the bill.

The next objection is, that by the terms of the contract, it was expressly understood and declared that time is and shall be deemed and taken as of the very essence of the contract. Time is always of the essence of a contract when an act is required to be done within a specr fled time; as much so as the act itself, and no more. Every part of a contract is of its essence. It is not very-clear what courts and text writers who use this phrase mean, unless it be that a subsequent performance can not be decreed, under all the circumstances of the case, by a, court of equity, by way of relieving against the forfeiture of the contract, without doing injustice to the party against whom the relief is asked. This is the principle equity acts on in relieving against forfeitures. Nor will it, by any stipulation of the parties, be ousted of its jurisdiction, or refuse to relieve against the exaction of the pound of flesh, although the parties have, in éxpress terms, stipulated for it.

The first payment was not made within the time required by the contract, and no forfeiture was declared or insisted upon. In November following the forfeiture in September, both Robinson and Weeks were paid, Robinson receiving the money for Weeks as well as that which was going to himself. On the 21st November, 1859, $180 more were paid on the second payment to be made to Weeks — making the whole amount paid complainant $649.98. In April following, the notice of forfeiture, and for complainant to quit the premises, was given by Robinson. Thereafter, and during the same month, Richmond paid the balance due on the notes and mortgage to Weeks, the last note not being due until the following September. The object of the notice to quit from Robinson is too obvious not to be seen. It was to make $649.98 out of complainant. He had suffered no loss whatever, and Weeks, to whom the money was going, made no complaint. And after the notes and mortgage had been paid, the payment of which appears to have been the object he had in view in selling the premises, he refused to convey. A stronger case could not well be presented for the interposition of a court of equity.

The third objection is, that Mrs. Robinson was not a party to the contract, and should not, therefore, be required to unite with her husband in the deed to complainant. This objection is well taken, and the bill must be dismissed as to her. But it is no answer to the refusal of Robinson to convey, when the notes and mortgage were offered to him and a deed demanded; for he did not place his refusal on the ground that his wife was required to unite with him in the conveyance. Had he done so, the execution of the deed by her might have been waived. His objection was, the forfeiture of the contract, and that complainant had no rights under it. Nor was Weeks a necessary party to the bill. The payment of the notes and mortgage by complainant discharged Robinson’s indebtedness to Weeks, and he had no interest in having the mortgage discharged of record; and if he had, Weeks would be bound to acknowledge payment of it on request. The decree should require' complainant to deliver up the notes and mortgage to Robinson, on receiving the deed from him.

The bill should be dismissed as to Mrs. Robinson, and the decree be so reformed as to Mr. Robinson as to require complaiuant to deliver the notes and mortgage to him, on receiving the deed from him. Neither party to have costs against the other.

Campbell J.:

We think the contract in this case was designed (as appears from the circumstances and from its terms) to provide "• for the payment of the mortgage to Weeks. It could not in any way concern Robinson (whether the mortgage was paid in one way or another. It only concerned him to get it satisfied; and, inasmuch as that has been done, the contract has been substantially complied with. The objection that it does not appear the taxes have been paid, stands on the same footing with the one alleged, that the contract to pay the mortgage was not literally performed. When Richmond paid for the land, and became thus entitled to a conveyance, the non-payment of taxes could injure no one but himself; and Robinson could have no concern with it, as he could not be compelled to warrant against them, and does not aver or ¿iretend that he has been made personally liable for them. Such covenants may doubtless become material, hut mot in such a case as the present.

Time cannot he made essential in a contract, merely by iso declaring, if it would he unconscionable to allow it. .'Parties may stipulate to make it so, where the stipulation Is reasonable; but, as in stipulated damages, if the stipulation is not reasonable, courts will not regard it. For these reasons I concur in the results arrived at by my brother Manning. So far as Mrs. Robinson is concerned, no decree can be rendered against her, for the reasons he has stated, in which I agree with him.

Martin Ch. J. and Christianct J. concurred in this opinion.-

       See Jaquith v. Hudson, 5 Mich. 123 ; Davis v. Freeman, 10 Mich. 188; Daley v. Litchfield, 10 Mich. 29.


author: Christiancy J:

text:
    The Peoria Marine and Fire Insurance Co v. Reuben S. Hall.

      Insurance ] by one part owner. — If one partner insure the partnership property against loss by fire in his own name only, and it does not appear that the insurance was really intended for the benefit of the firm, the premium paid from the partnership funds, and the transaction subsequently ratified by the other partner, the policy will coyer only the undivided interest of the partner insuring,

      •It makes no difference in this respeot that the agent of the insurer knew the interest of the parties, and that it was the intention of both the insurer and. insured, at the time of issuing the policy, that the insurance should ‘cover the whole.
    The rule may be otherwise where the partner making the insurance has made advances to the firm, which, by agreement, are to constitute a lien on the goods insured.
    Where a policy when made covers the interest of one partner only, the remaining interest can not be brought within it by the partner insured subsequently becoming the owner of the whole.

      'Conditions in fire policy: limitation of action. — By one of the conditions attached to a fire policy it was provided that no suit should be brought upon it unless within twelve months next after the loss; and in case any suit should be commenced after tho expiration of twelve months, the lapse of time should be deemed and taken as conclusive evidence against tho validity of tho claim, It was held that if such a condition was valid at all, it was valid as a con* tract only, and that the limitation fixed by it must, upon the principles gov* erning contracts, be more flexible in its nature than one fixed by statute, aud liable to be defeated or extended by any act of the insurer which prevents action being brought within the prescribed period.
    Held further, that the insured had the whole of the twelve months within which to commence suit, and that the limitation must rest upon the tacit condition, without whioh it could not'he valid, that the insurer should be accessible to the service of process by which suit may be commenced against him, if not for the whole period, at least for a sufficient time immediately preceding its close to enable the insured to commence his suit in the ordinary legal mode
    -And process having been issued before the expiration of the twelve months, return, able two days after thoir expiration, and no agent of the insurer — a foreign corporation — being found in the county, upon whom to make service, and new process kboing issued on the return of the first, it was held that the failure to commence suit within twelve months' was sufficiently excused, and the seoond suit, under the circumstances, was brought in season.

      1Conditions in policy: Iceeping of gunpowder: toawer. — Where by a fire policy it was provided that the keeping of gunpowder “without written permission in the policy” should render the ’policy void, it was held that if the agent taking insurance on a stock of goods knew that gunpowder was kept and to be kept, the keeping it would not render the policy void, whether permission to keep it was. indorsed or intended or neglected to be indorsed or not.
    Notice of this fact to the agent was notice to the principal, and by taking the premium and issuing the policy, the insurer must be regarded as having waived the condition whioh prohibited gunpowder being kept.

      Heard November 5th, 1863.

      Decided January 8th.

    Error to Washtenaw Circuit, to which the case had been transferred from Jackson. All the material facts, appear in the opinion.

      IAvermore & Wood, and Johnson & Higby for plaintiffs in error:
    1. This suit was commenced by the last writ. There is nothing showing it to have any connection with the former writ, except the words “ Alias Summons,” indorsed on the seal of the writ; but we submit that does not make it a continuous writ.
    As to the validity of the limitation of right of action by the insured. See 2 Phil. on Ins. § 2171; 1 Blatch. 280; 25 Ill. 446; 3 Hill, 161; 9 Ind. 448; 20 Vt. 230; 27 Vt. 101; 31 Penn. 449; 24 Geo. 101; 6 Ohio, 602 ; 6 Gray, 606, 180; Broom's Legal Maxims, 539.
    2. The second question to be submitted in this case, is whether, if the agent, King, knew at the time of effecing the policy, that the property insured belonged to the plaintiff and Bennett, the policy would be valid for the whole stock insured.
    The third question is, whether the court erred in charging that, if the plaintiff informed the agent that he kept gunpowder in his store for sale, and the agent intended to insure against keeping it but neglected to indorse the permission on the back of the policy, such neglect would not make the policy invalid.
    We propose to discuss these questions under one head, as they involve substantially the same jninciple in law, viz: whether the written terms of the policies, and consequently the liabilities and obligations of the parties, can be changed by any parol agreement or understanding between the agent and insured.
    The phraseology of this last charge is peculiar, and is really inapplicable to the evidence in the case; for the evidence is that the plaintiff informed the agent that he kept gunpowder for sale, and the agent denies it. Yet the Court charged the jury, that if the plaintiff informed the agent that he kept gunpowder, &c., and the agent intended to insure against it, the policy is not invalid. There is no evidence the parties intended to make any other or different agreement than the one reduced to writing; but the jury have found that the parties did intend to make a different agreement, and the question is, which is to prevail, the written agreement or the agreement which the jury say the parties intended to make, founded upon the evidence of the conversation of the parties at the time this written agreement was executed and delivered.
    We need not cite authorities to show that parol evidence is not admissible to vary, explain or contradict an agreement in writing; as, in the language of the books, “It is not admissible to give evidence of a parol agreement prior to, or contemporary with a written instrument, and which varies its terms:” — 23 N. Y. 516.
    So that if we have properly stated this question, the charge was certainly erroneous.' For the express provision of the policies is, that the keeping of gunpowder for sale, or on storage, without the authority in writing, shall render them void.
    But we think this charge is erroneous for another reason, viz: we think the conditions annexed to policies are limitations on the power of agents; and these limitations were known to the assured, and therefore he has no cause of complaint. He knew from both of these contracts in his possession, that they were forfeited by keeping gunpowder.
    And he knew, or was bound to know, any parol agreement contrary to the terms of his policies was of no account.
    There is this difference in the last two questions: In reference to the ownership of the property, it was represented in the application of the plaintiff as his property. It was insured as his property, and the facts contained in. the applications are declared to be warranties by the express terms of the policy; and such is .the law, without these express stipulations, if referred to in the policy: —> Ang. on Ins. § 141, and note 2. And unless these facts are litei-ally true, the policy is void.

      0. Hawkins, for defendant in error,
    argued that the-second summons was to be regarded as an alias. Also, that the stipulation contained in the policy limiting the time to one year after the loss, in which suits may be-brought fof losses sustained, is against public policy and void: — 5 Ind. 23; 2 Ind. 102; 9 Ind. 448; 4 Ind. 239; 5 McLean, 461.
    The stipulation is a mere attempt to bar a right of' action before the right accrues. It is a release to operate upon the happening of an event yet to occur, and which-may or may not take place; and to make a release good it must operate on an existing claim, a present right.

    The time specified in the statute of limitations is as much a part of the policy of the law as the act itself, and it is a matter of law and can not be changed by the contract of the parties: — 5 McLean, 465.
    Another error alleged, is, that the Circuit Judge charged the jury, that if the agent, King, at the time of making-the policy on the goods, knew the interest of the parties, that they were jointly owned by Hall & Bennett, and insured the whole stock, the policy would be valid for the whole stock insured. The Court was clearly right.
    It was in proof that Hall stated to King he did not think he had the right to insure Bennett’s share. King replied it would make no difference, that Hall had the right to insure for the whole amount.
    It would be a fraud to permit them to take advantage of their own acts to defeat the plaintiff’s recovery, and the law will not permit it. The insurance company having received the premium, and adopted the acts of their agent, they must abide by them.
    It makes no difference whether Hall’s interest was much or little, only to show that Hall practiced no fraud by representing he was the owner of the goods when he was not. That his interest was sufficient to entitle him to recover will appear from the following cases: — Ang. on Ins. §§ 55, 79; 1 Hall, 84; 6 Cush. 7.
    It was left to the jury to determine, from the evidence, whether the agent, King, intended to insure the whole stock against fire, and including gunpowder; and the jury found he did, though he omitted to make the indorsement on the policy.
    The failure to indorse it on the policy was not the fault of the plaintiff, and the company can not take advantage of it: — 1 Bosw. 522.
   Christiancy J:

This was a suit brought by Hall against the company, upon two policies of insurance against loss by fire; one upon a stock of goods in plaintiff’s store in the village of Hamburg, Livingston county, Michigan, to the amount of two thousand dollars, dated January 18th, 1860; and the other for a like amount in the aggregate, upon plaintiff’s dwelling house, furniture, clothing, barn and shed, hay and grain, and on his store (building) there situate, the amount insured upon each item being specified; that upon the store building being one hundred and fifty dollars. This policy is dated August 9th, 1859.

The policies on their face are declared to be “made and accepted in reference to the conditions thereto annexed, which are to be used and resorted to in order to explain the rights and obligations of the parties in all cases not therein otherwise specially provided for.” By the eighth condition annexed, it is declared (among other things) that “ the keeping of gunpowder or fireworks, for sale or on storage, upon or in the premises hereby insured, or in any building containing property insured by or under this policy, without written permission in the policy, shall render it void and ’ of no force or effect.’’

The 17th condition is in the following words: “It is further hereby expressly provided, that no suit or action against said company, for the recovery of any claim under or by virtue of this policy, shall be sustainable in any court of law or chancery, unless such suit or action shall be commenced within the term of twelve months next after any loss or damage shall occur: and in case any suit or action shall be commenced against said company after the expiration’ of twelve months next after such loss or damage shall have occurred, the lapse of time shall be taken and deemed as conclusive evidence against the validity of the claim so attempted to be enforced.’’

It was proved on the trial by the plaintiff below, who was sworn as a witness in' his own behalf, and the fact was undisputed, that at the time of the application for insurance of the goods, and at • the date of the policy (January .13th, 1860), one Helara Bennett was a partner of the plaintiff in business, and, as such, was the owner of the undivided half of the goods insured, and continued to be such partner and owner until the 14th day of March, 1860, when the plaintiff bought out his interest.

There was evidence tending to show (as to the policy on the goods) that King, the agent of the company, came to the store and wanted to insure the goods} that plaintiff signed the application for the policy, which was mostly blank when signed; that ‘ some one came in, and King turned around and said plaintiff could sign it, and he (King) could fill it out; that plaintiff told King he usually sold gunpowder and every thing usually sold in a country store, and that he intended to do so. And (in reference to the policy on the store) there was evidence that, at the time the insurance was taken, the keeping of gunpowder was talked over with King, the agent, and he was told they had gunpowder in the store, and was asked if it would make any difference if powder was kept for sale; to which King replied “No.”

There was also evidence that plaintiff, at the time of the application for the insurance on the goods, told the agent he did not think he (plaintiff) had a right to insure Bennett’s share, and that King replied it would make no difference; that, plaintiff had a right to insure the whole.

The fire occurred on the 81st day of March, 1860, by which the store building and the stock of goods were destroyed.

The Circuit Judge charged the jury that, “if the agent, King, at the time of making the policy on the goods, knew the interest of the parties — that they were jointly owned by the plaintiff and Bennett — and insured the whole stock, the policy would be valid for the whole stock insured.” To this charge exception was taken, and this presents the first question we shall consider.

It is evident from the language of this charge, that it was intended to instruct the jury, that, if the agent, at the time of making the policy, knew the interest of the parties, &c., .the policy would be valid for the whole amount of the interest of both partners, and that the plaintiff was entitled to recover in this action the whole amount of-the loss of all the goods, though his interest at the time of the insurance was but one half, and though the insurance was in his name alone, and his declaration averred that, ‘‘ at the time of making said policy, and from thence until the loss, &o., he was the owner of said property insured by said policy, and of the value, and to the amount, by the said defendant insured thereon.”

Without attempting to decide what might have been the rule of law, had it appeared from the evidence that the insurance was really intended for the benefit of the firm, the premium paid from the partnership fund, and the transaction subsequently ratified by the other partner; we think where (as in the present case) there is no evidence of this- kind, and its whole tendency is the other way, the rule is well settled, in reference to a fire policy like this, that if one partner, or part owner of property held in common, insure in his own name only, the policy will cover his undivided interest, and no more; Graves v. Boston Marine Ins. Co. 2 Cranch, 419, 440 ; 3 Kent (5th ed), 258; 2 Duer's Ins. §§ 24 and 20; Finney v. Bedford Com. Ins. Co. 8 Metc. 348; Finney v. Warren Ins. Co. 1 Metc. 16 ; Pearson v. Lord, 6 Mass. 81; 1 Phil. on Ins. 219, § 391; 1 Arnould on Ins. 146 and note. The rule may be otherwise when the partner making the insurance has made advances to the firm, which, by agreement, are to constitute a lien on the goods insured: — 2 Duer on Ins. § § 19 and 24; Milliandore v. Atlantic Ins. Co. 8 La. 557.

We do not see how the agent’s knowledge of the interest of the parties, nor his belief or assurance that Hall had the right to insure the whole, can affect the question, so long as the insurance was not in fact made on the account, and for the benefit, of the firm. One partner can not, by reason alone of his. interest as such, insure in his own name, and for his own benefit, the interest of his co-partner in the partnership stock. And, though such may have been the intention both of the assured and of the company, on entering into the contract, the policy, in legal effect, can operate only as an indemnity against loss to the extent of the plaintiff’s undivided half of the goods. And, if the policy, when made, did not cover the other partner’s undivided half, that portion would not be brought within it by the plaintiff’s subsequent acquisition of the property from such other partner’ The charge was therefore erroneous, and as the verdict of the jury, in accordance with the charge, was for the whole amount of the goods, the judgment must be reversed upon this ground. But, as there is to be a new trial, we think jt proper to indicate our opinion upon the two other questions raised in the case.

It was objected by the defendant below, that the action Was not brought within the period of twelve months after the loss, according to the seventeenth condition attached to the policy. It appears from the bill of exceptions that a summons was issued in the cause March 18th, 1861 (thirteen days before the expiration of the twelve months), returnable on the second day of April, 1861; that, on the third day of April, 1861, the sheriff made a return upon the said summons that defendant could not be found in his bailiwick, that on the next day another summons was issued with which defendant was served, nothing appear -ng on this summons showing it to be a continuation of the first, except the 'word “alias’’ written by the clerk upon the face of the seal.

We do not deem it necessary to discuss the question whether this second summons, as an “aliasoperated strictly as a continuation of the first, so as to save a right of action against a statute of limitations which had run upon it in the mean time; nor do we think it necessary to determine the validity of this species of limitation by contract. If valid at all, it was valid as a contract, and not as a statute. A limitation fixed by statute is arbitrary and peremptory, admitting of no excuse for delay beyond the period fixed, unless such excuse be recognized by the statute itself. But a limitation by contract (if valid) must, upon the principles governing contracts, be more flexible in its nature, and liable to be defeated or extended by any act of the defendant which has prevented the plaintiff from bringing his action within the prescribed period. The plaintiff had the whole of the twelve months in which to bring his suit; and it was as competent for him to institute it on the last as the first, or any intervening day. And the fundamental idea, the tacit condition upon which such a limitation must rest, and without which it could not be tolerated for a moment, is, that the defendant should be accessible to the service of process by which suit may be commenced against him, if not for the whole period, at least for a sufficient time immediately preceding its close, to enable the plaintiff to commence his suit against him, by the service of process in .the ordinary legal, mode: otherwise the defendant would be enabled to take advan. tage of his own wrong, and, by absenting himself, entirely to defeat the plaintiff’s right of action.

The defendant in the present case was a foreign corporation, doing insurance business in this State. By the act of February 15, 1859, full provision was made for bringing the action within the State: and the company, before doing any business in the State, were required to file in the office of the Secretary of State a resolution con' senting that service of process may be made upon any agent of the company. Nothing is said in the case upon what agent the service of the second summons was made: but it must have been made upon some agent of the company. It does not appear whether there was an agent in the county of Jackson, or in any other particular county. It appears that S. S. Brown was the general agent of the company for this State, and that Knight was also an agent, but neither their residence nor place of business is stated. From any thing which appears in the case, the plaintiff was as much at liberty to bring his action in Jackson as in any other county, so far as the residence of an agent could have any bearing, if, indeed, it could have any under the law: and if an agent of the company resided in Jackson county, the action was certainly very properly brought there.

All that was necessary for the plaintiff to do to excuse the delay beyond the twelve months, was, to take the proper and usual means for instituting his suit, and getting service of process within the limited period: which he did by issuing a summons thirteen days before the expiration of that period, returnable two days after it expired. The return shows that no service could be had during that time. We can see no possible ground for imputing any want of good faith to the plaintiff in his endeavor to get the process served in time. Upon the facts stated in the case, therefore, it appears to have been the fault of the defendant — the absence of an agent — that the first summons was not served, and the action com menced within the twelve months: and this is sufficient to defeat the limitation, or extend it till the service was made under the second summons, which was issued immediately on the return of the first.

As to the condition in reference to the keeping of gunpowder, there was evidence from which the jury were authorized to find, that the agent knew it was kept a the time, and was to be kept after the insurance, and that he assented to it, and induced the plaintiff to believe that it would make no difference.

Upon this point the Court charged, that, “if plaintiff informed the agent that he kept gunpowder^ in his store for sale, and the agent intended to insure against keeping it, but neglected to indorse the permission on the back of the policy, such neglect would not make the policy invalid.” The condition did not provide for any indorsement of this kind upon the policy, but the keeping of gunpowder was to render the policy void “without written permission in the policy.” To this extent the charge was inaccurate, yet we do not think it can be treated as error of which the company can complain: since, we think the plaintiff was entitled to a still stronger charge in his favor. He would have been entitled to a charge that, if the agent knew it was kept, and to be kept, the keeping it would not render the policy void, whether the permission was indorsed or intended or neglected to be indorsed or not.

But the counsel for the plaintiff in error insists that the printed condition was notice to the assured of the agent’s want of authority to assent to the keeping of gunpowder, &o., and that this assent could be given only by the company itself. This, at first view, would seem plausible, and might be sound, but for another principle which lies back of it and defeats its application. The principle to which we allude is, that notice to the agent is notice to his principal. The company must be regarded as knowing what he knew. If he knew that powder was kept at the time of the insurance, or to be kept during its continuance, the company must be regarded as having known it also. They had power to waive the condition; and by taking the premium and issuing the policy with such notice or knowledge, they must be regarded as having waived the condition which prohibited its keeping. It would- be a gross fraud in the company to receive the premium for issuing a policy on which they did not intend to be liable, and which they intended to treat as void in case of loss: — Bidwell v. North Western Ins. Co. 24 N. Y. 302; Frost v. Saratoga Mutual Ins. Co. 5 Denio, 154; Masters v. Madison Co. Mutual Ins. Co. 11 Barb. 624; Campbell v. Merchant's & Farmers' Mut. Ins. Co. 37 N. H. 35; Marshall v. Columbian Ins. Co. 27 N. H. 157; Hartford Prot. Ins. Co. v. Harmer, 2 Ohio (N. S.) 452; Howard Fire Ins. Co. v. Bruner, 23 Penn. 50; Clark v. Union Mut. Fire Ins. Co. 40 N. H. 333: see Angell on Ins. § 470.

We see no error in the record or proceedings in the Court below, except that in reference to the interest of •the plaintiff at the time of the insurance. For this error the judgment must be reversed, with costs in this Court, and a new trial granted.

The other Justices concurred.


author: Campbell J.:

text:
    Benjamin Thorne v. Augustus Hilliker and others.

      Practice in foreclosure suits: Disregarding commissioner's report. — Bill for the foreclosure of a mortgage. An answer being filed denying that any thing was due, .the case was referred to a circuit ..court commissioner, whose report showed nothing due when suit was commenced. This report was not excepted to, and it was held that the defendant had a right to rely upon it, and that the Court could not inspect the documents which were before the commissioner, or take evidence to test the correctness of the commissioner’s conclusions. And the Court below, .having, on inspection of the documents, rendered a decree for complainant, it was reversed by this Court.

      Submitted July 17th, 1863.

      Decided January 8th.

    Appeal in chancery from Lapeer Circuit. The bill was filed for the foreclosure of a mortgage. Birdsall, one of the defendants, answered, denying that there was any thing due on the mortgage when the suit was commenced. The bill was taken as confessed by the other. defendants. The case being referred to a circuit court commissioner to report the amount due, he made a report showing that the interest due at the time suit was commenced had all been paid, and by the terms of the mortgage no part of the principal was yet due. No exception was taken to this report, hut, on the hearing in the Circuit Court, the Circuit Judge, on an inspection of the receipts upon the mortgage came to the conclusion that one year’s interest was due and unpaid at the time the bill, was filed ; and rendered decree for complainant. Birdsall appealed to this Court.
    The original mortgage was brought to this Court for inspection — the controversy being as to the time stated in one of the receipts, up to which interest had been paid — one party insisting that it was to -December 5, 1858, and the other to December 5, 1859,

      A. JB. Maynard, for complainant.

      Hemingway <& Stiekney, for Birdsall,
   Campbell J.:

In this case the commissioner’s report, stating the amount due on a mortgage, shows that the principal was not due until after the bill was filed, and that no interest was then unpaid, the interest accruing up to that time being stated to have been paid. Complainant did not except to this report, nor did he object to it; but allowed it to stand as the foundation of his claim to a decree. He can not now, by evidence, or by asking this Court to inspect the documents, rid himself of the effect of this action. He is bound by the report which he has adopted, and the defendant has a right to rely upon it.

There was therefore no cause of action when the bill was ■ filed. The decree must be reversed, and the bill be dismissed, with costs of both courts as far as the appellant is concerned.

The other Justices concurred.


text:
    Hiram R. Johnson v. The Provincial Insurance Company of Toronto.

      Former recovery as a bar : fraudulent conceahnent of cause of action. — An insurance agent gave bond to his principal, conditioned to account for and pay over the moneys received by him as such. Judgment having been recovered by them on this bond for money not accounted for and paid over, a scire facias was issued, assigning as a further breach, that the obligor had, before the judgment, received a further sum for which he failed fo account, and the receipt of which he fraudulently concealed. On demurrer, it was held that the fraudulent concealment was a sufficient Lreason for not including this sum in the original pleadings and judgment; — and the demurrer was overruled.

      Mistake in assignment of error: amendment.— An objection to a writ that it is not tested “in the name of the People of the State of Michigan,” is not sufficient to allow the party to make the point that the style of the writ is not “in the name of the Peoplef &c. And as the [objection is purely technical, an amendment should not be allowed to rectify it to the overthrow of substantial justioe.

      Heard October 30th, 1863.

      Decided January 8th.

      Error to Wayne Circuit.
    On July 22, 1858, the defendants in error filed then-declaration in said Court, against Roderick M. Chittendon, Hiram R. Johnson and Hiram R. Andrews, upon a bond given by them, conditioned that said Chittendon should, from time to time, account for and pay or cause to be paid to said insurance company, all such moneys as should be by him received for said company, and well and faithfully execute and perform his duties as agent of said company. Breach, that said Chittendon failed to account for and pay over the sum of $555.36 by him received for the company.
    September 14th, 1858, the company recovered judgment in said suit by default, for $2000, the penalty of the bond, and had their damages assessed at $565.61.
    November 29, 1859, scire facias was issued upon said judgment as follows:

      The People of the State of Michigan, to the Sheriff of the Gounty of Wayne, Greeting:

    [seaxi.] Whereas the Provincial Insurance Company of Toronto,1;of the Province of Canada, heretofore, to wit: on the fourteenth day of September, 1858, in the Circuit Court for the County of Wayne, and State of Michigan, recovered against Roderick M. Chittendon, Hiram R. Johnson, and Hiram R. Andrews, judgment for a certain debt of two thousand dollars; and whereas the said Court also awarded execution against the said Roderick M. Chittendon, Hiram R. Johnson and Hiram R. Andrews, for the sum of five hundred and sixty-five dollars and sixty-one cents, ascertained and determined by said Court to be the amount due the said plaintiff, by reason of the breach of a certain writing obligatory, hereinafter mentioned, being-part of said debt for which said judgment was rendered, and also their costs and charges expended in that behalf by said plaintiffs, whereof the said Roderick M. Chittendon, Hiram R. Johnson, and Hiram R. Andrews were convicted, as by the record and jmoceedings thereof remaining in said Circuit Court, before the Judge thereof, at the city of Detroit in said county of Wayne, manifestly appears.
    And afterwards, at this day, to wit: the twenty-ninth day of November, 1859, the said Provincial Insurance Company of Toronto, by William A. Moore, their attorney, come into the said Circuit Court for the County of Wayne, and before the Judges thereof at the said city of Detroit, and in accordance with the form of the' statute in such case made and provided, give the said Court to understand and be informed that the said debt so by their account as aforesaid was and is a certain penal sum of two thousand dollars, mentioned in a certain bond or writing obligatory, bearing date and executed by the said defendants, and sealed with their seals, on the second day of September, 1857, at the said city of Detroit, and within the jurisdiction of this Court, and to the Court now here shown, and being upon the files thereof, which said writing-obligatory was and is subject to a certain condition thereunder written, whereby after reciting to the effect following, to wit: Whereas the said defendant, R. M. Chittendon, had been retained and employed by the said plaintiffs as an agent in the transaction of fire and marine insurance business, for and on account of said plaintiffs, .•and upon being so employed had agreed to enter into a bond in a sufficient penalty, for insuring to the said plaintiffs the faithful discharge of his duties in his said employment, and whereas for the engagement of the said Roderick M. Chittendon as such agent, they, the said Hiram R. Johnson and Hiram R. Andrews, on the behalf and at the request of the said Roderick M. Chittendon, did consent and agree to become surety unto the said plaintiffs, for the said agent’s true and faithful execution and discharge of his said office, as thereinafter mentioned, to wit: that if the said Roderick M. Chittendon should, from time to time, and as often as he should be thereunto requested by the said plaintiffs, their successors and assigns, well and truly account for, and pay or cause to be paid unto the said plaintiffs, their successors and assigns, all such sum or sums of money as should be by him,, the said Roderick M. Chit, tendon, had and received for, on account of, or to the use of said-.plaintiffs, in any way whatever, and should at all times, when thereunto requested, well and truly account for and deliver unto the said plaintiffs, or unto such person or persons as the said plaintiffs should appoint to receive the same, all such sum or sums of money, books, papers, writings, receipts, vouchers, matters and things which he, the said Roderick M. Chittendon, had received, or should from time to time be intrusted with, or which should come into his hands for, on account of, or to the use of the said plaintiffs and their successors; also, if the said R. M. Chittendon should from time to time, whilst he should so continue an agent of the said plaintiffs, in all thing’s and in all respects well and faithfully execute and perform the said office of agent according to the instructions which might from time to time be furnished him from the said plaintiffs, or when he should act without instructions, then said obligation should be void, otherwise ■to be and remain in full force and virtue.
    And the said plaintiffs, the Provincial Insurance Company of Toronto, also give the said Circuit Court for the county of Wayne here to understand and be informed, that the declaration by them filed in the said action, on which they obtained said judgment aforesaid, was exhibited on the 22d day of July, 1858, and that said action was brought and commenced upon and for a certain breach of the aforesaid writing obligatory, by the said •defendants, before the exhibition^ the declaration aforesaid.
    But the said plaintiffs, for further and other breach of the said writing obligatory, according to the form of the statute in such case made and provided, give the said Court to understand and be informed, that after the execution of the said writing obligatory, and before, and at the time of the filing of the said declaration in the aforesaid action, the said Roderick M. Chittendon had received,, as agent of and for, and on account of the said plaintiffs, a large sum of money, to wit: the further sum of three hundred and two dollars and sixty cents, and that said Chittendon, although thereunto afterwards often requested, to wit: on the 29th day of October, 1859, by the said plaintiffs, has failed and neglected to well and truly account for and pay, or cause to be paid, the said last mentioned sum of money to said plaintiffs, or any part thereof, according to the condition of said writing obligatory, and still neglects and refuses so to do, to wit: at the city of Detroit aforesaid: that the said plaintiffs, at the time of the entry of the judgment so recovered as aforesaid, had no knowledge that the said defendant Chittendon had received the said sum of money last mentioned, or any part thereof,: that the said defendant Chittendon denied that he had received any such sum of money, or any part thereof, and they charge that he wrongfully, concealed from said plaintiffs that he had received said sum of money, or any part thereof, which said last mentioned breach of the said writing obligatory so assigned, the said plaintiffs give the said Court here to understand and be informed, is a further and other breach than the one for and by reason of which the said plaintiffs obtained the said judgment so by them recovered as aforesaid: and for which said further and other breach the said plaintiffs have humbly besought this Court to provide them a remedy, and this Court being willing that what is just in this behalf should be done, does, according to the form of the. statute in such case made and provided, command you that you summon the said Roderick M. Chittendon and Hiram, R. Johnson (the said Hiram R. Andrews being now deceased) that they be and appear before this Court, at the court, house in the city of Detroit, in said county of Wayne, on Tuesday the third day of January next, to show cause, if any they have, why execution should not. be had and awarded against them, the said Chittendon and Johnson, upon the said judgment so obtained for,' the damages aforesaid, by reason of the said further and other breach of the said condition of the said writing obligatory, and further to do and receive what said Court, before the Judge thereof, shall then and there consider of them in this behalf; and have you then and there this writ.
    Witness the Honorable Benjamin F. H. Witherell, Judge of the Circuit Court for the county of Wayne, at Detroit, on the 29th day of November in the year one thousand eight hundred and fifty-nine.

      TJ. T. Thro op, Glerh.

      Wm. A. Moore, Plffs. Aliy.

    To this the defendant Johnson demurred, for the following reasons :
    1st. For that the said writ is not tested “ in the name of the People of the State of Michigan.”
    2nd. For that it appears that the breach alleged in the said writ of scire facias is for the same Or a part of the same breach for which a recovery was had in the action upon which said writ issued.
    3rd. For that said scire facias is not issued against Hiram R. Andrews, the defendant in the judgment recovered in said cause, or against his legal representatives in any way, nor are they or either of them parties thereto.
    4th. And for that the said writ is in other respects deficient and insufficient.
    The Circuit Court overruled the demurrer, and gave judgment for the plaintiffs.

      P. G. Holbrooh, for plaintiffs in error:
    The defect in the style of the writ not” being issued “In the name of the People of the State of Michigan,” rendered the writ void and not amendable: — 20 Ill. 509.

      The second error is, that the writ sets forth the fact that this breach accrued prior to the commencement of suit, and it is for exactly the same breach (not for the same money) as that alleged in the declaration.
    The plaintiffs took judgment in the former suit at their peril for any sum. The defendant could have been sworn for plaintiffs, and he might have sworn to the truth, and owned up as to the whole money. But suppose he had sworn that he had not received any other, and the plaintiff knew, nothing of further receipts, as is alleged ; would it then be competent, after a discovery of the facts, to-recover it in the manner now attempted ?
    A bill of discovery might have been filed, and the fact of the receipt of this money found out.
    Had this sci. fa. alleged, as a breach, that the defendant Chittendon did not follow instructions, and thereby the, money was lost, or any other breach but that identical' with the declaration, another question might arise..
    Chittendon’s denial out of court was nothing more than his plea of general issue in court.
    It is not necessary to cite authorities showing that a plaintiff can not split the same cause of action, and recover-parts by two suits; that a party shall not be subject to-two suits for the same breach; but the ignorance of the plaintiff is relied upon as good cause for multiplying suits against these sureties, as often as a discovery is made of other monies collected.
    This is contrary to the well established course op decisions: — 2 Smith's Lead. Cas. 4 Am. Ed. 572-3, &c.

      W. A. Moore, for defendants in error.
   Campbell J.:

The judgment below was rendered on a scire facias to recover upon further breaches of a bond which had passed into judgment against Roderick M. Chittendon, as principal, and Hiram R. Johnson and Hiram R. Andrews, as sureties. The bond was given for the purpose of securing the insurance company, against the misconduct of their agent. Judgment was given on demurrer.

It was alleged as error, that the breach set forth in the scire facias is the same or a part of the same set forth in the original declaration. The scire’facias avers that the money now claimed was received by Chittendon before the original suit, but that he concealed that fact from the company, and that they knew nothing of it when the judgment was rendered.

The bond was given to secure an accounting, as well as payment; and this was necessary, for the obvious reason, that generally an insurance company has no means of discovering the receipt of money until the agent informs his principal of the fact. An agent can not be permitted to set up his own wrong to avoid a liability; and if he kept the company in ignorance of his receipts, he can not, on that ground, object that they have not acted as if they knew what they did not know. Our statute makes a fraudulent concealment of a cause of action a ground for excepting it from the Statute of Limitations (Comp. L. § 5372); — and if it avails for such a purpose, it must equally avail in a case like the present. The scire facias avers that it is a new breach, and gives the fraudulent concealment as a sufficient reason for not including it in the original pleadings and judgment.

It is also objected, that the scire facias is not tested in the name of the People of the State of Michigan. It does run in the name of the People of the State of Michigan, and conforms in this regard to the English practice, and that of the United States Courts, and probably most of the State Courts. A writ is properly said to run in the name of the person or government from whom the command on the face of the writ appears to emanate.

Had not the words “ in the name of the People ■ of the State of Michigan” been inserted in the Constitution between inverted commas, so ’as to favor the idea that the phrase must be used verbatim,, no difficulty could arise in this case about it. Whether the Constitution can be satisfied by a substantial compliance has been left unnecessary for decision in the case before us, as the objection, which is purely technical, is itself insufficiently taken. The Constitution does not require writs to be tested in the name of the People. The statute requires them to be tested in the name of the Circuit Judge. It is the style of the writ which must be in the name of the People. Comp. L. § 4107. As the statute is express upon this subject, the defendant in error was justified in assuming that the objection, being pointed at the test of the writ, was not well taken. We are reluctant to allow a party to lose a ground of error which we can see he probably designed to take, merely because of a slip in missapplying a technical phrase, but the objection itself is so technical that we should not feel justified in allowing such to amendment as would rectify the slip to the overthrow of substantial justice.

The other grounds of error were not pressed.

Judgment must be affirmed, with costs.

The other Justices concurred.


author: Manning J.:

text:
    Lewis Bresler v. Henry Pendell.

      Statute of Frauds: promise to pay the debt of another.— Where A had taken a contract to do work for B, but, not being paid, had abandoned tbe contract, and afterwards resumed it, and did certain extra work on the promise of 0 to pay him; but the evidence showed that he still looked to B for his pay, and not to 0 except as guarantor, it was held, that the promise of C, not being in writing, was void under the Statute of Frauds, both as to the extra work, and that done under the contract.

      Heard October 24th, 1863.

      Decided January 8th.

      Error to Wayne Circuit.
    The cause, in the Court below, was referred to a referee, who reported the following facts:
    “That in the month of May or June, 1860, one Charles E. Bresler made a contract with Eugene St. Amour, for the erection by the said St. Amour, for said Bresler, of a block of buildings . on Michigan Avenue, in the city of Detroit. That according to said contract, said block of buildings was to be two stories in height, with walls of eight inches in thickness, and that the pillai-s of said block and the lintels were to be of wood. That after said contract was so made, St. Amour sub-let to the plaintiff in this cause, the job of doing the stone, mason and brick work of said block. That after said sub-letting, the plan of said block was twice changed, the first change being intended to make said block three stories in height instead of two, and substituting iron pillars and lintels instead of wood, and increasing the thickness of some of the walls to said block; and the second change being the same as the first, with the addition of a fourth story to said block. That said plaintiff entered into the prosecution of said work, under his agreement with said St. Amour, and prosecuted the same to completion. That during the progress of said work, said defendant was about said block much of the time, overseeing its construction, and giving-directions as to the same. That said St. Amour failed to comply with his agreement with said plaintiff, in that he did not make the payments for said services, in accordance with his contract with said plaintiff, and that, in consequence thereof, said plaintiff twice abandoned said job, and refused to proceed further with the same. That on both of said occasions, said defendant requested said plaintiff not to abandon said job, and promised him that if he would continue the same to completion, he, the said_ defendant, would pay him or would see him paid, and that under said promise, said plaintiff resumed said job after so twice abandoning it, and completed the same; but that said promise, so made by said defendant, was not in writing, and that the said original contract, between said St. Amour and plaintiff, was still in existence and uncancelled.
    That in consequence of the above mentioned changes made in said block, the following extra work became necessary, to wit: Setting in columns and fronts, and window caps and sills. That at the request and by the direction of said defendant, the following other extra work was1 done on said job, to wit: Rubbing down the front of said building preparatory to its being painted, and making two arches of brick work. That none of said extra work was included or mentioned in the said agreement, between the plaintiff and said St. Amour; that the same was done by said plaintiff, at the request of said defendant, and that said defendant promised and agreed to pay said plaintiff therefor; that the fair value of said extra work was the sum of three hundred and fifty-five dollars.
    And I further certify and report, that I find as conclusions of law based upon the facts as above found in said cause,

      First. — That said defendant is not legally liable to pay said plaintiff, for any portion of the work done by him, which was included and mentioned in the contract between St. Amour and said plaintiff, notwithstanding said defendant promised to so do, for the reason that said St. Amour’s agreement with said plaintiff was still in force and uncancelled, and defendant’s said promise to make such payments to plaintiff was by parol merely, and not in writing;

      Second. — That the said defendant is legally liable to pay to the said plaintiff, the value of said extra work above mentioned, and not included in the St. Amour contract with the plaintiff, with interest thereon.”

      The referree reported to the Circuit Court all the evidence, and that Court rendered judgment against Bresler in accordance with his views. The view taken by this Court of the evidence sufficiently appears by the opinion.

      J). C. JSolbrooJe, for plaintiff in error.

      Gray <& O'Flynn, for defendant in error.
   Manning J.:

There does not seem to me to be any good reason for discriminating between the extra and the. other work. If either was done on the promise of Bresler, it was not on his solé promise, but on his promise in connection with the previous promise of St. Amour, and therefore, if supported by a consideration, should have been in writing to bind Bresler. If, as some of the witnesses state, Pendell refused to go on with the work under his contract with St. Amour, because he was not paid by him, and on that account abandoned the work, and afterwards resumed it on the promise of Bresler, the evidence shows he still looked to St. Amour for his pay, and not to Bresler, except as surety or guarantor. I think the judgment should be reversed, and judgment be entered for Bresler, with costs of both courts.

The other Justices concurred.


author: Christiancy J.:

text:
    Rufus Hunter, Executor, &c., v. Greenleaf Hopkins.

      ¿Parol evidence to divest a title to land. — To warrant a court of equity in divesting a title to land, on parol evidence that an unrecorded deed given therefor was subsequently, by agreement between the parties, surrendered by tho grantee to be cancelled, the preponderance of evidence should be clear, and tho evidence should be so convincing as to leave no reasonable doubt upon the mind.

      Heard October 7th and 8th, 1863.

      Decided, January 8th

      Appeal in chancery from Oakland Circuit.
    Hunter, as executor of the last will and testament of Chipman Hopkins, filed his bill against Greenleaf Hopkins, setting forth in substance; That Chipman Hopkins, in October, 1848, was seized of certain lands, which “he on. that day conveyed to his son Greenleaf Hopkins, the defendant, and took back a life lease. That on the 10th September, 1854, Greenleaf, having] failed to pay for '■ said lands, was desirous to rescind his contract, and that it was agreed that the same should be done. That Chip-man Hopkins settled with Greenleaf for what he had paid on the land, which sum was about forty dollars, and the same was paid back in a horse.
    It is further charged that the deed was not recorded, and therefore it was handed back by Greenleaf, and the name was taken off or obliterated, and the deed was taken by Chipman and put among his papers, and remained there till March or April, 1856. That after that time it was taken without consent, and on 2d May, 1856, was recorded in the register’s office of Oakland county, and that Greenleaf claims the land.
    In his answer, Greenleaf admits the conveyance of said lands to him, but says the consideration was a mortgage of two hundred dollars on the land, and a mortgage on a horse of one hundred dollars, and the life lease. He avers that the deed was duly executed and acknowledged, and before he got it recorded some person unknown got possession of it, and tore off the name of Chipman. That after it was so mutilated he ■ caused it to be recorded. He asserts that he paid Chipman the amount due on the mortgages, and they were given up to him.
    That he never, at any time, proposed to rescind said trade, and that Chipman never let him have a horse to apply on a contract. That Chipman did let him have a horse to sell, and that he sold him as agent for Chipman, and paid over the proceeds.
    A large amount of oral testimony was taken in the case, and the Circuit Court entered decree for the complainant, as prayed.

      G. V. JST. Lothrop, for complainant.

      Baldwin & Draper, for defendant.
   Christiancy J.:

TTpon a careful examination of the evidence in this cause, we do not think it satisfactorily sustains the ease made by the bill. There is no direct or satisfactory evidence that the deed from Chipman Hopkins to his son (the defendant) was ever given up by the latter to the former, or that it was ever cancelled by the defendant’s consent. ■

As to the horse alleged in the bill to have been given by Chipman Hopkins to the defendant, as a consideration for relinquishing to the father his title to the farm, we think there is a preponderance of evidence that it was sold by defendant Us the agent of his father, and that the latter received the proceeds.

The evidence upon the point whether the farm had been given up to the father, and the trade abandoned, is very conflicting, and too inconclusive, in our opinion, to furnish a safe ground for divesting the record title to real estate. To divest such title on the grounds mentioned in the bill, upon parol evidence alone, the preponderance of evidence should be clear, and the evidence should be so convincing as to leave no reasonable doubt upon the mind.

The decree of the Circuit Court for the county of Oakland in Chancery must be reversed, and the bill dismissed, with costs to the defendant in both courts.

Martin Ch. J. and Campbell J. concurred.

Manning J. did not sit in this case.