text:
    CHAMBERLIN v. FISHER.
    1. Sales — Purchase for Illegal Use — Knowledge of Seller-Recovery of Price.
    Mere knowledge by a distiller that purchasers of liquor were conducting a saloon business in the name of one partner to deceive the public officers, the other partner acting as bondsman, will not prevent a recovery of the purchase price, where he does no affirmative act in furtherance of the evasion.
    2. Partnership — Evidence—Declarations of Alleged Partners.
    The declarations of both defendants sued as.partners, made at different times, are competent to show the existence of a partnership as against the person making them.
    Error to Livingston; Smith, J.
    Submitted June 7, 1898.
    Decided June 28, 1898.

      Assumpsit by Marvin H. Chamberlin and others, co-partners as M. H. Chamberlin & Co., against Daniel Fisher and Oscar D. Weller, for goods sold and delivered. From a judgment for plaintiffs, defendants bring error.
    Affirmed.

      Arthur E. Cole and William P. Van Winkle, for appellants.

      S. S. Abbott and A. G. Pitts, for appellees.
   Montgomery, J.

The plaintiffs are distillers. The defendant Fisher is a saloon keeper at Fowlerville. Liquors were sold and delivered by the plaintiffs to Fisher from 1895 to August, 1897, and on these sales a balance was found by the jury to be due, amounting to $334.44. The principal question in controversy on the trial was whether the defendant Weller was a partner of Fisher in the business. There was abundant testimony tending to show, not only a holding out of Weller as a partner to plaintiffs’ agent, but a partnership in fact. The questions arising on this testimony were properly submitted to the jury, unless the contention of defendants that public policy forbids recovery is sound.

It appears that Weller’s name did not appear in connection with the business as a principal, but that he acted as bondsman for Fisher. The contention is now made that, as the conduct of the business in the name of Fisher was calculated to deceive the public officers, a partnership cannot be said to have existed, as partnerships are confined to lawful business. This point does not appear to have been distinctly made by any request to charge; but, treating it as properly in the case, we think it cannot be sustained. The purchase of plaintiffs’ goods by these two defendants jointly and as partners was lawful. It does not appear that the plaintiffs participated in any affirmative way in the evasion of the law by defendants, or, at the most, it does not appear conclusively that they did, and there was no request to submit any such question to the jury. Mere knowledge that the purchaser of goods is engaged in an unlawful business will not prevent recovery, if there be no affirmative act by the vendor in furtherance of the illegal transaction. Webber v. Donnelly, 33 Mich. 469; Gambs v. Sutherland’s Estate, 101 Mich. 355.

But one other question requires special mention. The plaintiffs offered, as evidence of partnership in fact, the declarations of both the defendants, made at different times. It is claimed that this was not competent. The court carefully limited the use of this testimony, and instructed the jury that it could not be considered except as evidence against the defendant making the particular declaration. As thus limited, the testimony was competent. Armstrong v. Potter, 103 Mich. 409; Edwards v. Tracy, 62 Pa. St. 378; 1 Am. & Eng. Enc. Law (2d Ed.), 711.

We have examined the other assignments of error, and find none of them well grounded. The case appears to have been very carefully tried by the circuit judge. The questions presented were submitted to the jury in a very clear charge.

The judgment will be affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    BURKE v. DUNN.
    1. Personal Property — Person in Possession at Owner’s Death — Replevin—Witnesses.
    One having possession of personal property at the death of the owner is entitled to defend such possession pending the appointment of an administrator, and, when sued therefor, is the representative of the deceased, within the meaning of 3 How. Stat. § 7545, so as to render the plaintiff incompetent to testify to matters equally within the decedent’s knowledge.
    2. Same — Sale—Delivery—Payment as Condition Precedent— Presumptions.
    On a sale of goods, where nothing is specified as to delivery or payment, a presumption arises that tire purchase price is to be paid as a condition precedent to delivery.
    3. Same — Evidence—Transaction with Decedent.
    The presumption that the payment to decedent of the purchase price of a horse sold by him was to be a condition precedent to delivery, which had not been effected at his death, is not overcome by evidence that he told a third person that he had sold the horse for a stated amount, and that the purchaser had paid part of the price, and was coming after the horse in a few days.
    Error to Shiawassee; Smith, J.
    Submitted June 7, 1898.
    Decided June 28, 1898.
    Replevin by George W. Burke against James Dunn. From a judgment for plaintiff, defendant brings error.
    Reversed.

      John T. McCurdy (Edwin H. Lyon, of counsel), for appellant.

      Frank F. Bumps, for appellee.
   Montgomery, J.

This is an action of replevin for a horse. The claim of plaintiff is that he bought the horse of one O’Malio in April, 1897; that, shortly after this purchase, O’Malio died. The plaintiff thereupon tendered to the widow of O’Malio the portion of the purchase price remaining unpaid, and demanded the delivery of the horse by defendant, in whose' possession the horse was at O’Malio’s death. The widow refused the tender, apparently on the ground that, as no administrator had been appointed, she had no right to receive the money; and the defendant, -for a like reason, refused to part with the possession cast upon him by O’Malio’s death. The plaintiff, not willing to await the appointment of an administrator, brought this action, and was permitted to recover. The defendant brings error.

The circuit judge, in effect, charged the jury that, at the decease of O’Malio, the title to the personal property remained in abeyance until the appointment of an administrator, but that if the title to the horse had fully vested in the plaintiff, discharged of any vendor’s lien, the plaintiff had the right to recover possession of it from any one in whose custody it happened to be. The defendant contends that the undisputed evidence shows that O’Malio retained an interest in or lien upon the horse for an unpaid balance of the purchase price.

The plaintiff was a witness to the bargain with O’Malio, and at the close of the testimony the court struck out his testimony as to facts equally within the knowledge of deceased. The appellee challenges this ruling, contending that the defendant is not the representative of deceased, within the meaning of section 7545, 3 How. Stat. We think, however, the ruling of the circuit judge was correct. The defendant, having possession cast upon him by the death of O’Malio, was entitled to defend that possession. Parks v. Norris, 101 Mich. 71, and cases cited. To hold that, while thus lawfully maintaining possession of the property, he is not a representative of the deceased, within the meaning of this statute, would permit an evasion of the statute by unseemly promptness in planting a suit before an administrator can be appointed. Every consideration forbids such a construction. The only testimony offered to show title, aside from that of the plaintiff (which was properly excluded), was that of one Mason, who testified, in effect, that O’Malio told witness that he had sold the horse in question to plaintiff for $60; that plaintiff had paid $30 on the horse, and was coming after the horse in a few days.

On a sale of goods, where nothing is specified as to delivery or payment, the vendor has the right to retain the goods until payment of the price; he has in all cases at least a lien, unless he has waived it. Benj. Sales (6th Ed.), § 796. It is true, an extension of credit beyond the date of delivery may operate to waive the lien; but the testimony in this case fails to show any such extension of credit. The implication of law is that the purchase price is to be paid, as a condition precedent, before the vendor shall be obliged to part with his goods. Bloxam v. Sanders, 4 Barn. & C. 941; Arnold v. Delano, 4 Cush. 33, 38; Conrad v. Fisher, 37 Mo. App. 352, 382. This presumption was not overcome by any competent evidence in this case, and it follows that the judgment must be reversed, and a new trial ordered.

The other Justices concurred.


author: Long, J.

text:
    FIRST COMMERCIAL BANK OF PONTIAC v. NEWTON.
    1. Married Women — Promissory Note — Consideration — Evidence.
    In an action by a bank against a married woman upon notes executed by her husband in her name, plaintiff claimed that the husband was defendant’s agent in all business transactions, and was authorized to sign the notes in suit. The defendant denied that she was engaged in business, by agent or otherwise, and disavowed her husband’s agency. It was shown that an account had been opened with plaintiff in defendant’s name, many years before, by her husband; that he at that time discontinued his own account, and thereafter made deposits and drew checks upon the new account; and, under objection, testimony was received showing that defendant participated in several dealings of her husband out of which the bank account arose, that the notes in suit were for overdrafts upon that account, and that the farm on which shd lived with her husband had been transferred to her by him before the account was opened. Held, that the evidence was properly received.
    2. Same — Separate Estate — Bank Account — Note for Overdraft.
    Evidence that a husband deeded his farm to his wife, and from that time the business was carried on by the wife, and the bank account growing out of the business was kept in her name, tends to show that notes given for overdrafts in her account relate to her separate property.
    3. Same — Husband as Agent.
    A married woman may constitute her husband her agent to carry on business for her in her name.
    4. Same — When Liable for Family Supplies.
    A married woman residing with her husband may be held liable upon her note for the price of clothing purchased for a minor son, if the sale was made to her upon her individual credit.
    5. Same — Condition Precedent to Suit — Statutes.
    2 How. Stat. § 6298, provides that a married woman shall be liable to be sued upon any contract or engagement made by her in cases where her husband is not in law liable, or where he refuses to perform such contract or engagement. Section 7352 saves to the holder of any bill or note the right to bring separate actions against the jiarties in the manner authorized by law. Held, that it is not incumbent upon the holder of a promissory note given by a married woman for her individual debt, and signed by her husband also, axiparently as accommodation indorser, to show, as a condition precedent to his maintaining a suit against the wife, that the husband is not liable or has refused to pay.
    Error to Oakland; Smith, J.
    Submitted June 7, 1898.
    Decided June 28, 1898.

      Assumpsit by the First Commercial Bank of Pontiac against Ann Newton on promissory notes. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Henry M. Cheever and William H. Walsh, for appellant.

      Aug. C. Baldwin, for appellee.
   Long, J.

The declaration was upon the common counts in assumpsit, with copies of three notes attached. The first note is for $25, dated September 4, 1895, due four months after date, and payable to J. W. Bird or order, signed “Ann Newton,” and indorsed “J. W. Bird.” The second is for $100, dated December 4, 1895, due 15 days after date, payable to the plaintiff, and signed “ Ann Newton” and “William Newton.” The third is for $1,983.64, dated November 10, 1895, due 60 days after date, payable to the plaintiff, and signed “Ann Newton” and “William Newton.” Defendant pleaded the general issue, and gave notice that she was a married woman at the time the notes sued upon were signed, and that she never executed them herself, or authorized any one else to execute them for her, and that, if they were signed by William Newton, her husband, no consideration ever passed to her or her estate for the signing of said notes.

It appears that William Newton, the husband of defendant, had a deposit account with the plaintiff, beginning in 1869 and continuing to September, 1877. June 26, 1878, an account was opened with the plaintiff in the name of Mrs. William Newton. No account thereafter was kept at the bank with William Newton. Soon after the account was opened with Mrs. William Newton it was changed to Ann Newton, and was thenceforth so continued. It appears from plaintiff’s testimony that, for many years prior to 1878, William Newton was engaged in importing, buying, and selling sheep and cattle. In 1876 he conveyed his farm and stock to his wife, and thereafter continued to live with her upon the farm. The buying, importing, and selling sheep and cattle was continued, and the account was kept in the bank in the name of Ann Newton. Deposit of moneys was made from time to time, and a large number of checks were drawn on the account and money paid thereon. Notes were frequently given for overdrafts, and when these notes were due they were frequently renewed, and all overdrafts included in the new notes. All this business was done in the name of Ann Newton, her husband, William Newton, assuming to act as her agent. This continued from July, 1878, to January, 1896, without question. The accounts were frequently overdrawn, when cards were sent to the defendant personally, and she came to the bank, and inquired relative to them, and, having been informed as to the matter, often replied that her husband was absent, and when he returned “he would attend to the matter, as he looked after her business.” It appears that the arrangement between the defendant and the bank was originally made with John D. Norton, who was then president of the bank, but who died in March, 1895. -

Mr. Jacobs was called as a witness'for plaintiff, and testified that he had been in the employ of the bank as cashier and teller for over five years, and that on two occasions the defendant had come to the bank with a postal card sent out by the bank to her, which read: “Please call at the First Commercial Bank;” that she handed this card to him at the window, and said: “I suppose this refers to my notes. Mr. Newton is away, and he attends to all my business for me, and as soon as he comes I will see to it.” This was in 1892. Mr. John D. Norton was living at that time. The account was still continued in this way until the present notes were given. The $25 note had been purchased by the bank from Mr. Bird. January 17, 1896, all these notes had become due; and witness Jacobs testifies that he took them to Detroit to meet the defendant, and asked her to secure them by mortgage; that defendant said she would not sign the mortgage until she had seen her husband, as he always attended to her business affairs, and she thought he would be home the next day, and that she would then give the mortgage after she had seen her husband; that on the next day defendant’s husband and Jacobs again went to Detroit and saw defendant; that she would not then sign the mortgage, claiming she was sick, but said she would sign it as soon as she got home. This mortgage was never signed. Evidence was also given by the plaintiff showing, or tending to show, that the defendant’s husband had acted as her agent since 1878, in all her matters of buying and selling sheep and cattle and in the dealings at the bank.

The defendant testified that she never had any business transactions with the bank; that she was not engaged in business from 1878 to 1895; that her husband was not her agent; that he had no authority to sign her name; and that she was in no way indebted to the plaintiff. She also denied the conversations with Mr. Jacobs at the bank in 1892. As to the $25 note, the defendant claimed it was given on account of clothing sold to her minor son. Mr. Bird, to whom the note was given, testified that the defendant had an open account at his store in which goods were charged to her; that he made statements of the account to her, and had talked with her about it, and had delivered goods to her; that this note was given for her personal account, — that is, the account was due from her personally; that it was given for an account for clothing for the minor son, and charged to her account, and which she directed to be so charged.

Two special questions were submitted to the jury at the request of counsel for defendant :

“1. Did Mrs. Newton personally ever open an account in her own name with the plaintiff bank ?
“2. Was Mrs. Newton in partnership with her husband in any business at the time the notes in question were given, or during the time which intervened between that time and the giving of the notes to extend or consolidate which the notes Exhibits B and C — the notes sued upon — were given ? ”

Both these questions were answered in the negative by the j ury.

The court, at the request of plaintiff’s counsel, submitted to the jury the following question:

“Do you find that William Newton, by authority of Ann Newton, opened an account with the plaintiff’s bank in her name ? ”

The jury answered this question in the affirmative.

The jury returned a verdict for the plaintiff for the amount of its claim as represented by the three notes, to wit, $2,380.69.

The court charged substantially that the defendant, being a married woman, could not become liable on the promissory notes, whether signed by herself alone or jointly with her husband, unless such notes were given in reference to her separate property, either already owned by her or to be acquired by the avails of the notes.

The plaintiff’s claim on the trial was that the defendant’s husband signed her name, to the two larger notes; that he was her agent in all her business transactions, and was authorized to sign checks and notes in the conduct of such business. Mr. Norton, the president of the bank, having died before the trial, no direct evidence could be given on that subject by the plaintiff. The defendant failed to call her husband as a witness, so that the entire case was made up by the evidence heretofore referred to and the circumstances surrounding the various transactions, extending over many years.

Plaintiff was permitted to show that the title to the farm had been transferred to the defendant by her husband; that the two larger notes were made up of overdrafts in the defendant’s account. The court was not in error in permitting this proof.

Other evidence was given by plaintiff showing several contracts in reference to the purchase of sheep and cattle by defendant’s husband, in which the defendant took part in making arrangements for the transfer of the property. Objection was made to this on the ground that it had no relation to the notes in controversy. It was competent for the purpose of showing that William Newton was in fact the agent of defendant in her dealings in sheep and cattle, out of which deals the bank account was made up.

It is contended that there was no evidence given by plaintiff showing, or tending to show, that the notes in suit related to the defendant’s sole property. We cannot agree with counsel in this contention. The farm was deeded to defendant by her husband, and the proofs tended to show that from that time forward the business was carried on by the wife, and the bank account and notes grew out of these transactions, and had relation to her separate property. It is settled in this State that our statutes do not authorize a married woman to become personally liable on an executory promise except concerning her separate estate. But it is also well settled that a married woman may carry on business in her own name, and for that purpose may make herself personally liable for a purchase of property on credit, and her husband may act as her agent. Rankin v. West, 25 Mich. 200. This case has since been followed, but it is unnecessary to cite the cases.

It appeared that the $25 note was given to Mr. Bird in settlement of a personal account of the defendant, a portion of it being for clothing purchased by her for a minor son. In Campbell v. White, 22 Mich. 178, the question was whether a married woman living with her husband, who had bought articles of family use for the members of her husband’s family, as well as for herself, could be held personally liable therefor. It was said:

“The liability of the wife was consequent upon her obtainment of the goods on her sole credit and individual promise to pay for them, and was therefore contemporaneous with such obtainment, and not conditional upon the kind of use to which the goods should be subsequently put. Her right to acquire upon her own credit was complete when the articles were obtained.”

Some claim is made that the defendant’s case was prejudiced before the jury by some remarks of the court during the progress of the trial. We do not think it important to discuss that question, as, from an examination of the record, we can see no prejudice to defendant; and the same may be said of the remarks of counsel for plaintiff during the argument of the case.

But one other question need be discussed. Counsel for defendant asked the court to charge the jury that—

“ The notes sued upon [Exhibits B and C] are joint and several notes, upon which William Newton is liable upon simple proof of his signature. This proof has been given and is uncontradicted. His liability rests upon the fact of his signature, and that the consideration is presumed to have passed to him. Hence Mrs. Newton cannot be held upon either of these notes, because the statute limits her liability to be sued upon any contract or engagement made by her to cases where her husband is not in law liable.”

This was refused, and counsel now contend that, inasmuch as no suit had been brought against the husband, and no showing made that he had refused to pay, therefore, under section 6298, 2 How. Stat., no action could be maintained against the wife. This section provides:

“The husband of any married woman shall not be liable to be sued upon any contract made by such married woman in relation to her sole property, and the wife shall be liable to be sued upon any contract or engagement made by her in cases where her husband is not in law liable, or where he refuses to perform such contract or engagement.”

The jury found that the defendant and her husband were not partners, and the proofs show that the husband was the agent of his wife in making the notes. It is true that he signed them with her, and apparently as an accommodation indorser, though the notes in form are joint and several. The debt was her debt, and upon which she was personally liable. The husband stood as to' her like any other accommodation indorser, and it was not necessary to bring suit against him before suit could be brought against the wife, or to join him in the action. 2 How. Stat. § 7353. The contention of counsel cannot be sustained.

We think a fair trial has been had, and we find no error in the case calling for a reversal of the judgment. The judgment is affirmed.

The other Justices concurred.


text:
    MOREY v. MOREY.
    Divorce — Decree.
    The character of the decree in. a divorce suit is not governed by the prayer qf the bill, but rests in the sound discretion of the court.
    Appeal from Wayne; Donovan, J.
    Submitted June 7, 1898.
    Decided June 28, 1898.
    Bill by Margaretta C. Morey against Franklin C. Morey for separate maintenance. From a decree of absolute divorce, complainant appeals.
    Affirmed,

      Galloway & Graham, for complainant.

      E. H. Sellers (Cassius Hollenbeck, of counsel), for defendant.
   Long, J.

On December 29, 1895, defendant filed his bill for divorce against complainant on the ground that she had been guilty of many acts of cruel treatment. Complainant answered this bill, and a replication was duly filed by defendant. It appears that on December 28, 1895, the complainant had filed her bill for separate maintenance and for divorce from bed and board against the defendant on the ground of cruel treatment. Defendant answered that bill, and a replication was duly filed. These two cases were heard together in open court, and a decree was made finding that the allegations in the complainant’s bill were true, and decreeing an absolute divorce under such bill. The complainant filed a written protest in the cause against the entering of a decree for absolute divorce, and entered a motion to modify the decree in that respect. This motion was denied, and the absolute decree was duly entered. The court also decreed that the defendant pay to complainant the sum of $700, with the costs of the proceeding. This appears to be, at least, the value of one-half of the property owned by defendant, and is made a lien upon his property. The complainant appeals.

The only question we need discuss is whether the court should have decreed an absolute divorce. We think the proofs warrant such a decree, and the character of the decree rests in the sound discretion of the court. Sullivan v. Sullivan, 112 Mich. 674.

The decree is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
      In re JOSLYN’S ESTATE.
    Estates of Decedents — After-Acquired Assets — Distribution.
    In November, 1883, an amendment to the Constitution, raising the salaries of circuit judges §1,000 per annum, was adopted. At that time the amendment was treated as taking effect on January 1st following. Subsequently it was decided that it went into effect on the date of its adoption, and an act was passed in 1891 authorizing the payment to such judges or their legal representatives of the amount due them from November 7th to January 1st. Held, on the death of a judge before such payment, that the amount was subject to collection and distribution by the administrator, like any other chose in action, and did not belong to the heirs of the estate.
    Error to Washtenaw; Kinne, J.
    Submitted June 9, 1898.
    Decided June 28, 1898.
    Appeal of Frank Joslyn, administrator of the estate of Chauncey Joslyn, deceased, from an order of the probate court requiring him to pay over certain moneys to the intestate’s widow, Sarah M. Joslyn. The order was affirmed in the circuit, and the administrator brings error.
    Affirmed.

      John P. Kirk, for appellant.

      J. C. Knowlton, for appellee.
   Hooker, J.

The appellant’s intestate, Hon. Chauncey Joslyn, was a circuit judge from November 7, 1882, or before, to the time of his death, in 1889. At the November election, in 1882, an amendment to the Constitution, raising the salaries of circuit judges $1,000 per annum, was adopted. Article 20, § 2, of the Constitution, provides that ‘ ‘ all the amendments shall take effect at the commencement of the year after their adoption. ” It was the uniform practice to treat the 1st of January succeeding the adoption of amendments as the time of their taking effect, and this course was followed by the State officers in the payment of the increased salaries to judges.

In 1876 an amendment was adopted permitting the submission of amendments to the electors at the local elections held upon the occasion of the annual township meeting, and a question subsequently arose as to when amendments became operative. This was settled in the case of Seneca Mining Co. v. Secretary of State, 82 Mich. 573 (9 L. R. A. 770), where it was held that amendments take effect from the time of their ratification, where adopted after the adoption of the amendment of 1876. It followed that the application of this rule to the amendment in relation to salaries of circuit judges entitled them to increased salaries from November 7, 1882; but no such payment was made until 1891, when an act was passed authorizing the payment of $147.20 to each of the persons who were circuit judges from November 7, 1882, to January 1, 1883, or their legal representatives. Act No. 105, Pub. Acts 1891. Judge Joslyn being dead, the appellant was appointed administrator, and received the sum mentioned from the State. An order was made by the probate court allowing the sum of $124 to the widow, from which an appeal was taken to the circuit court, where the order was affirmed.

The question before us is whether this fund was subject to such disposition, it being contended that it belongs to the heirs of the estate, to whom it was granted by the legislation mentioned, and that it is not properly a portion of the assets of Judge Joslyn’s estate. We think this position untenable. This money was earned by Judge Joslyn, and under the amendment, as construed in the case cited, was a valid claim against the State, subject to collection and distribution by his administrator, like any other chose in action.

It follows that the orders of the circuit and probate courts should be affirmed, with costs. It will be so certified.

The other Justices concurred.


author: Grant, C. J.

text:
    BOKENFOHR v. BUSH.
    1. Appeal — Assignments of Error — Instructions.
    Failure to instruct the jury, in an action upon a contract for the sale of “good merchantable potatoes,” as to the meaning of the term “merchantable,” cannot be relied upon on appeal, where no request for such instruction was preferred.
    2. Same — Trial—Remarks of Counsel.
    A judgment will not be reversed for alleged erroneous remarks of counsel, where the record does not show any objection or exception, or what the remarks were, or that the attention of the court was called to them. ,
    Error to Wayne; Hosmer, J.
    Submitted June 8, 1898.
    Decided June 28, 1898.

      Assumpsit by Jackson Bokenfohr against Herbert T. Bush and others, copartners as H. T. Bush & Co., for goods sold and delivered. From a judgment for plaintiff, defendants bring error.
    Affirmed.
    One Adolph Anderson, a produce dealer and broker in New Orleans, telegraphed defendants, produce dealers in Detroit, the lowest price per car load for good merchantable potatoes. Defendants replied by telegram, June 4th: “Accept offer bbld. potatoes, Triumphs preferred. Make careful selection, fresh stock.” Anderson ordered the potatoes of plaintiff, who supposed that Anderson was defendants’ agent. On ^receipt of the telegram, the goods were immediately shipped. On their arrival defendants refused to accept, on the ground that the potatoes were too small. Plaintiff sued for the purchase price, and recovered verdict and judgment.

      Whitney C. Beckwith, for appellants.

      Bowen, Douglas & Whiting, for appellee.
   Grant, C. J.

{after stating the facts). The court instructed the jury that Anderson was not agent for defendants, but that he was the agent for plaintiff, and, if they found that the potatoes were merchantable when delivered to the carrier at New Orleans, plaintiff was entitled to recover, but, if they were not merchantable, they should find for the defendants. The testimony was in direct conflict.

Error is assigned upon the failure of the court to instruct the jury that “merchantable” means “specially inferior to the best or the selected quality, but sufficiently good for ordinary purposes; that it means more than salable for any price; and that defendants, in ordering the potatoes, had ordered that a careful selection be made.” No such request was made to the court, nor does it appear from the record that any such point was made. It cannot, therefore, be considered by us. The case was evidently tried upon the theory shown in the court’s instructions.

Error is also assigned upon remarks of counsel for plaintiff to the jury. The record does not show any objection or exception, or what the remarks were, or that .the attention of the court was called to them. The objection was made afterwards upon a motion for a new trial, in the denial of which we concur.

Judgment affirmed.

The other Justices concurred.


text:
    McCANN v. DILLABAUGH.
    1. Debtor and Creditor — Arrangement Between Security Holders — Novation—General Assignment.
    By an arrangement between the mortgagor and the several mortgagees of a stock of goods, the value of which at a forced sale would have been inadequate to pay the indebtedness covered by the mortgages, a bill of sale of the stock was given to one of the mortgagees, who agreed to pay the other mortgagees if a sufficient amount should be realized out of the stock. Thereupon the debtor was released, the old mortgages were canceled, and new ones executed by the purchasing mortga' gee, the other mortgagees accepting them in lieu of those canceled. The transaction was free from fraudulent intent. Held, that the arrangement constituted a valid novation, and did not amount to an assignment for the benefit of creditors, void for preferences.
    2. Same — Consideration—Fraud.
    Such a transaction is clearly distinguishable from that involved in Allen v. Stingel, 95 Mich. 195, where the value of the stock transferred to the mortgagee greatly exceeded the consideration for the transfer, and the transferee purchased with knowledge that he was already amply secured, and that the effect of the transfer would be to defraud unsecured creditors.
    Error to Delta; Stone, J.
    Submitted June 8, 1898.
    Decided June 28, 1898.
    Garnishment proceedings by John McCann and others, copartners as McCann & Co., against Dexter C. Dillabaugh, as garnishee of Ber Buchman and others, copartners as Buchman Bros. From a judgment for defendant, plaintiffs bring error.
    Affirmed.
    Plaintiffs were creditors of the principal defendants, and, upon bringing suit, garnished the defendant Dillabaugh, and seek to hold him upon the ground that he has property in his hands belonging to the principal defendants. Verdict and judgment were rendered for the defendant.

      The material facts are as follows: The principal defendants, general merchants doing business under the firm name of Buchman Bros., were indebted to various parties, and, among them, the First National Bank of Escanaba, to which they were indebted in the sum of $1,200. They gave a mortgage to the bank, October 22, 1896, and at the same time executed several other mortgages, which were subject to the bank mortgage, and, among them, one to Dillabaugh. The total amount of the mortgages was $3,800. The bank mortgage was by mistake $600 too large. October 25th the bank took possession of the stock under its mortgage, having ascertained that Buchman Bros, owed a much larger amount than they had represented. An inventory was taken, and the stock, at cost price, amounted to $3,900. The bank, evidently desiring to protect the subsequent creditors as well as itself, made efforts to find a purchaser of the stock. On November 7th an arrangement was reached between the mortgagees, the Buchman Bros., and Dillabaugh, by which Buchman Bros, executed a bill of sale to Dillabaugh for the expressed consideration of $2,900. Dillabaugh agreed to pay the mortgagees $2,350, and one creditor by the name of Bassford received $50 in goods from the store. The actual consideration was therefore $2,400. Whether this included Dillabaugh’s claim is not clear. The old mortgages were canceled, and Dillabaugh executed new notes and mortgages to secure the sums he had agreed to pay. By an arrangement between these secured creditors and Dillabaugh it was agreed that, if he did not realize enough out of the stock to pay the amount of these notes and mortgages, he should only pay the amount realized. He immediately took possession, hired one of the Buchman brothers, and placed him in charge of the store. It seemed expedient to Dillabaugh to purchase new goods in order to help sell the old, and he made considerable purchases for that purpose. The business was so prosperous that he finally concluded to continue it. At the time of the trial, July 21, 1897, he had purchased $3,800 worth of new goods, and had paid all the mortgages except $450, had paid for the goods bought, and had goods on hand which he estimated, without any inventory, to be worth between $2,000 and $3,000.

      F. D. Mead, for appellants.

      George Gallup, for appellee.
   Grant, C. J.

(after stating the facts). Counsel for the plaintiffs insists that the transaction was, in effect, an assignment for the benefit of creditors, and void because of preferences. "We cannot concur’in this view. It was doubtful whether the goods at an auction sale would bring enough to pay 50 per cent, of the mortgages. Defendant gave evidence to show a bona fide sale. The debtors were released from their obligations. The creditors discharged them, and accepted in lieu thereof the obligation of Dillabaugh. The novation was complete. The case is clearly distinguishable from that of Hill v. Mallory, 112 Mich. 387. The entire question of fraud was submitted to the jury under full and correct instructions. The jury found there was no fraud, and their verdict has settled the question. •

This is not a case for the application of the rule established in Allen v. Stingel, 95 Mich. 195. It cannot be said that Dillabaugh purchased with knowledge that he was amply secured, and that Buchman Bros, were insolvent, and that he entered into the transaction for the purpose of defrauding the unsecured creditors of Buchman Bros. His mortgage was a second one. The goods were old, and, if sold under the mortgages, would have failed to realize the amount secured.

We find no error in the record, and the judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    DICKEY v. CONVERSE.
    1. Tenancy by Entireties — Ownership of Crops — Sale on Exe. oution.
    In the absence of any agreement between tenants by entirety as to the ownership of crops raised upon the land, they will be held subject to the same law as the land itself, and therefore exempt from levy and sale on an execution against one of the tenants.

    2. Same — Trover—Defenses—Fraudulent Conveyances — Homestead.
    It is no defense to an action of trover against an officer for selling, under an execution against a husband, crops raised by him upon land occupied by himself and wife aá tenants by the entirety, that the joint deed was taken after the judgment was rendered, with the intent to hinder and delay the execution creditor, where no steps have been taken in equity to set the deed aside, and it is not clear that the credit- or’s right to complain is not cut off in any event by reason of . a homestead exemption.
    Error to Hillsdale; Lane, J.
    Submitted January 7, 1898.
    Decided July 12, 1898.
    Trover by Edgar P. Dickey and Mary A. Dickey against Russell E. Converse. Prom a judgment for plaintiffs, defendant brings error.
    Affirmed.

      Corvis M. Barre and E. J. March (F. A. Lyon, of counsel), for appellant.

      Bailey & Janes, for appellees.

       The multitude of authorities on the different phases of tenancy by entireties are collected in a note to Hiles v. Fisher, (N. Y.) 30 L. R. A. 305.

   Moore, J.

In October, 1885, the plaintiff Edgar P. Dickey gave bis note for Bohemian oats for $160. In September, 1889, Mrs. Salmon recovered in tbe circuit court a judgment upon this note. Afterwards an execution was issued, and placed in the hands of the sheriff, who is defendant in this case. In September, 1894, he levied upon crops grown upon an 80-acre farm, occupied by the plaintiffs in this case. He afterwards sold the crops, and the plaintiffs sued him in trover for the conversion. The case was tried by the circuit judge, who gave judgment in favor of plaintiffs. He also made findings of fact and conclusions of law. Defendant brings the case here by writ of error.

The record discloses that prior to November, 1881, John H. Dickey bought the farm for the purpose of selling it to his son Edgar and his nephew John Bennett, and made a contract with them by which they agreed to assume a mortgage of $1,200 which was on the farm, and to pay him $1,000. Under this agreement, Dickey and Bennett were in possession of the premises about two years, when some trouble arose, and the contract and premises were surrendered to the elder Dickey. Edgar .afterwards worked the farm for his father, who in the meantime had increased the mortgage upon the farm until it amounted to $1,700. It was the verbal agreement between Edgar and his father that, if Edgar would reimburse his father for what the farm cost him, the father would deed it to Edgar. In July, 1886, the plaintiffs were married, and moved into the house upon the farm. Under the verbal arrangement, Edgar turned over to his father more or less of the proceeds of the farm, until they considered he had paid $400 in that way, prior to February, 1892. Edgar also built a barn and an addition to the house upon the. farm. In February, 1892, it was arranged that, upon the payment of $100 to John H. Dickey, and the assumption of the $1,700 mortgage by the plaintiffs, John H. Dickey would deed to them the farm. For the purpose of raising the $100, the father of Mrs. Mary A. Dickey signed a note with her husband. The money was obtained at a bank, and paid to the elder Dickey. When this note was given, it was agreed the deed should be given to Edgar P. Dickey and his wife. This note was afterwards paid with the proceeds of the farm. The deed was made and delivered to them in 1892, but was not put upon record. The crops levied upon were grown in 1894.

Of course, the findings of fact made by the circuit judge are conclusive. His findings, so far as it is necessary to refer to them, are as follows:

“ The consideration of the deed from John H. Dickey and wife to Edgar P. and Mary A. Dickey, so far as it was paid at all, was paid by Edgar P. Dickey out of his own funds, except that $100 of said amount was paid with proceeds from the farm after it was so purchased, and except that there was a mortgage upon said premises for $1,700, upon which both Edgar P. Dickey and Mary A. Dickey are liable. The title was taken by Edgar P. and Mary A. Dickey through a quitclaim deed from the father, and at that time there were $1,700 of mortgages upon the premises, previously given by the father. The title of both Mary and Edgar was therefore subject to these _ mortgages, amounting to $1,700. As a matter of law, the court doth find that she was under the same obligation to discharge this mortgage incumbrance as was her husband; no more and no less. Neither of them was responsible for the payment of this mortgage by reason of any covenants in the conveyance by which they took the land. The amount of the consideration'paid by the said Edgar P. out of his own funds was $400. Said Mary A. Dickey never actually paid anything of the consideration for this conveyance of February 3, 1892, except what was contributed of the products of the farm after it was so purchased by them. One hundred dollars of the consideration was paid from the products of the farm grown after title was in Mary A. and Edgar P. Dickey. This deed to Edgar P. and Mary A. Dickey the court finds to have been taken in the names of both, in the belief that it could not be reached by said execution creditor to satisfy her execution, and to hinder and delay said execution creditor in the collection of her judgment.
“The wheat, oats, and hay levied upon and in controversy in this case were cut upon said farm, which was managed by the said Edgar P. and Mary A. Dickey in the way in which farms are ordinarily run and managed by husband and wife where the title is in the husband; that is to say, the said Edgar P. looked after the cultivation and management of the farm so far as the outdoor work was concerned, and marketed the products, the said Mary A. doing the work in the house, and, to some extent, out of doors, such as farmers’ wives in the country are sometimes accustomed to do. The said Edgar P. does not personally perform all the labor. The property in question in this suit were the products of said farm, planted, grown, and harvested since the deed of February 3, 1893. There was no arrangement or agreement between the husband and wife as to the ownership of the products of the farm.”

The court found, as a matter of law:

“That as this property was planted, grown, and gathered since the giving of the deed of February 3, 1893, there having been no agreement or arrangemeut between the said Edgar P. and Mary A. that either should have any other interest than such as would result from their joint ownership in the land, the title to such harvested products was, like the title to the land, in the said Edgar P. and Mary A., as tenants by the entirety, and, as such, not subject to execution for the individual debt of either.”

The defendant considers the questions involved under two propositions, which he states as follows:

“First. Are the crops raised by the husband upon a farm owned by himself and wife, as tenants by entirety, or any part thereof, subject to the payment of the debts of the husband ?
“Second. Did the purchase of this farm by said Edgar P. Dickey, and the taking of the title thereto in the names of himself and wife for the purpose of defeating and delaying the collection of this Salmon judgment, deprive the said Hannah E. Salmon of the right to levy her execution upon the crops raised thereon ? In other words, can the fraud of said Edgar P. Dickey, in taking this deed in the name of himself and. wife, be shown, in an action at law, for the purpose of subjecting the crops raised upon said farm to the satisfaction of this judgment taken against said Edgar P. Dickey individually ? ”

He answers the first proposition in the affirmative, and, as to the second proposition, says the fraud can be shown for the purpose of subjecting the property to this levy.

It is claimed the holding of plaintiffs is that of tenants by entirety, and that the husband is entitled to the full control of the rents and profits of the land during the joint lives, to the exclusion of the wife, and that the crops grown would be subject to the claims of creditors. A good many cases are cited in support of this proposition, but these cases are not in accord with the holdings of this court, as will hereafter be shown.

It is also argued that even though it is said that the married woman’s act gives her full control of her property, including her interest in estates by entirety, it does not give her any right to control the husband’s interest therein, and the crops raised upon such lands are owned by husband and wife as tenants in common, and one-half of them are liable to the payment of his debts; citing Buttlar v. Rosenblath, 42 N. J. Eq. 655 (59 Am. Rep. 52), and Hiles v. Fisher, 144 N. Y. 306 (30 L. R. A. 305, 43 Am. St. Rep. 762). The first of the cases does not relate to the question of who is entitled to crops grown upon land held by tenants in entirety, but it does hold that “the wife is endowed with the capacity during the joint lives to hold in her possession, as a single female, one-half the estate in common with her husband, and that the right of survivorship still exists as at common law,” and that the interest of the husband in the real estate might be reached by creditors. In the case of Hiles v. Fisher it was held, where a husband executed a mortgage upon lands deeded to himself and wife, that the mortgage was effectual to convey his interest, which was a right to the use of an undivided one-half of the estate during the joint lives, and to the fee in case he survived his wife, and that, by the foreclosure and sale, the purchaser acquired this interest, and became a tenant in common with the wife of the premises, subject to her right of survivorship. As we understand the decisions, these cases are in direct conflict with our own court, and not in harmony with the law in relation to tenancy by entirety.

In Fisher v. Provin, 25 Mich. 347, where land was conveyed in fee to husband and wife, it was held they did not take as tenants in common. In Ætna Ins. Co. v. Resh, 40 Mich. 241, it was held that, where husband and wife were in possession of a house granted to them by the same deed, the husband “was neither a tenant in common nor an ordinary joint tenant. Iiis estate in case of his death went by survivorship to his wife, and during their lives, whatever his right may have been, it was not an undivided half of the property.” In Manwaring v. Powell, 40 Mich. 375, it is said that husband and wife, under a grant made to them jointly, take by entireties, and therefore whatever would defeat his title would defeat hers also. In Jacobs v. Miller, 50 Mich. 119, it was said: ■

“ The grant ran to the parties of the second part as husband and wife, and it was intended to make an estate by which the property should be held by entirety. The ingredients and incidents of such a title or estate give it an exclusive character, and distinguish it from all other modes of holding. The persons of the second part do not take by moieties, but are seised of the entirety, and the survivor takes the whole, and during the joint lives neither can alien so as to bind the other.”

In Vinton v. Beamer, 55 Mich. 559, where a judgment creditor had levied upon and sold the interest of the husband, which was a life estate in 160 acres of land for himself and wife and the survivor of either of them, a deed was issued, and, after the redemption period expired, ejectment was brought. The court held it could not be maintained. The court said:

“The interest William Beamer took with his wife was a peculiar one. It was an entirety. Fisher v. Provin, 25 Mich. 347. They both took the same estate, the same interest, and it could not be separated. The right of the one was the right of the other. Neither could, by a separate transfer, affect the rights of the other or his own. What would defeat the interest of one would also defeat that of the other. Manwaring v. Powell, 40 Mich. 375. * * * William Beamer had no such distinctive estate in the premises as was here attempted to be sold upon tbe execution, and which the plaintiff seeks to recover in his ejectment, and the court in this ejectment suit cannot invest him with it.”

In Speier v. Opfer, 73 Mich. 35 (16 Am. St. Rep. 556), it was held a married woman could not be liable upon a joint contract with her husband for the erection of a building upon real property held by them as tenants by entirety. Of the character of the property the court said:

‘ ‘ During the lives of both, neither has ah absolute inheritable interest. Neither can be said to hold an undivided half. They take by entireties, and, at the death of the wife, the whole passes at once to the husband. * * * This is not such- separate property of the wife as the statute gives her power to make contracts in relation to. She can neither sell, incumber, nor control it while living, nor devise it at her death.”

In Lewis’ Appeal, 85 Mich. 340 (24 Am. St. Rep. 94), it was held that husband and wife take as tenants by entirety, and not as joint tenants, under a joint deed to both, and the estate thus created, with the attendant right of survivorship, is not affected by a decree of divorce. The court quoted at length and with approval the language used in Speier v. Opfer, supra.

In Naylor v. Minock, 96 Mich. 182 (35 Am. St. Rep. 595), it was held that neither a husband nor wife can convey the estate vested in them as tenants in the entirety by his or her sole deed, and any instrument by which either attempts to make such conveyance is void.

It will be seen that Buttlar v. Rosenblath, supra, and Hiles v. Fisher, supra, are in direct conflict with these cases. See, also, McCurdy v. Canning, 64 Pa. St. 39.

This species of tenancy grows out of the unity of hus-' band and wife, and is unlike that of joint tenants, who are each seised of an undivided moiety. The husband and wife are each seised of the whole, and not of undivided moieties. Hardenbergh v. Hardenbergh, 18 Am. Dec. 378 (10 N. J. Law, 42), note.

What is the purpose of the use of a farm ? Is it not a place to live upon ? to grow crops for consumption and sale ? If neither the husband nor the wife has an undivided moiety of the use of the farm, how can it be said each of them has an undivided interest or moiety in the result of that use ? To hold that the husband is not entitled to an undivided moiety of the use of the farm, but is entitled to an undivided half of the results of that use, is, we think, illogical. While the precise question involved here has not been decided by this court, it has been before the supreme court of Indiana in Patton v. Rankin, 68 Ind. 245 (34 Am. Rep. 254), where it was held that “a crop raised on land held by a husband and wife by entire-ties is held by them in the same manner and subject to the same law as the land itself, and such crop is therefore not subject to levy and sale on an execution against the husband. ”

Passing to the second branch of the case, it is said that as the trial court has found the land was purchased by Mr. Dickey with his own funds, and the title was taken in the joint names of himself and wife, in the belief it could not be reached by Mrs. Salmon, the execution creditor, and to hinder and delay her in the collection of her judgment, this was a fraud upon her, and the defendant is entitled to recover. Does this follow? Mr. Dickey was a householder. He was entitled to a homestead, not exceeding 40 acres in extent and $1,500 in value. He was occupying 80 acres of land to which he had no legal title, upon which he had paid $400, and made improvements the extent and value of which are not clearly shown. It is doubtful if at this time he had any interest in this land which would have been subject to levy and sale. Was it a fraud upon his creditors, under such circumstances, for himself and wife to assume an indebtedness of $1,700, and to turn over a sum of money previously paid by the husband, and improvements made by him, which with the sum of money do not exceed in value the $1,500 allowed for homestead purposes, upon an agreement that the land should be conveyed to both of them ? It has been held time and again that a conveyance by a debtor of land exempt as a homestead is not a fraud upon creditors. Smith v. Rumsey, 33 Mich. 183. See 2 How. Stat. § 7722 (note). It is not at all certain that a court in chancery would set aside this conveyance upon the application of a creditor as a fraud upon him; but, as that question is not directly before! us, we express no opinion upon it.

There was no evidence on what part of the 80 acres the crops were grown. They were grown two years after the deed was made to Mr. and Mrs. Dickey, and the court found there was no agreement between the husband and wife as to the ownership of the products of the farm. In Hill v. Chambers, 30 Mich. 422, it was held that the presumption in relation to the ownership of crops, in the absence of any proof, is that ownership of products follows the title. Of course, this presumption may be overcome by proof. In Bump, Fraud. Conv. (4th Ed.) § 475, it is said:

“The grantee has a valid title until the creditors, by asserting their rights in due course of law, defeat it; and, when defeated, it is not rendered void ab initio, but only from the time of the levy of the execution under which the property is sold. * * * For the same reason, when land is fraudulently conveyed, the creditors cannot levy upon the crops subsequently produced by him, or upon property which he has converted from realty, into personalty.”

The defendant says there are qualifications to this rule, and that this case comes within the qualification that, if the creditors can show the transfer was colorable, the creditors may levy upon the crops, and that it is not necessary to have the deed set aside before the levy can be made; citing Pierce v. Hill, 35 Mich. 194 (24 Am. Rep. 541), and Fury v. Strohecker, 44 Mich. 337. In the first of these cases the levy was made upon a crop growing at the time of the transfer. In the second case it was held that where land is fraudulently conveyed, and the fraudulent grantor retains an interest in crops subsequently grown by an understanding with the grantee, the crops may be reached by a judgment creditor.

No steps have been taken to set aside the deed. The deed itself was not made by Mr. Dickey to his wife, and he never had any legal title to the land separate and apart from the title of his wife. It is-not shown any agreement was made as to who should own the crops. Take the case as made, we cannot say the court erred in his disposition of the case.

Judgment is affirmed.

The other Justices concurred.


text:
    BOARD OF WATER COMMISSIONERS OF DETROIT v. CITY OF DETROIT.
    1. Nuisance — Sunken Vessels — Negligence.
    The rule that the owner of a vessel which sinks by accident, without negligence, in a river, is not bound to remove the same as a nuisance, does not apply to a vessel which, after being damaged by fire, was still afloat, and might easily have been removed, but was negligently allowed to become water-logged and sink.

      2. Same — Abatement—Public Board.
    A city water board authorized to sue and be sued, which has charge and control of a park, sustains sufficient private injury from a public nuisance, consisting of a wreck in a river in front of the park, to entitle it to maintain a bill to abate the same.
    3. Same — Defenses—Municipal Corporations.
    Where a city, through its board of health, executes a contract for the lease of a vessel, with the privilege of buying, and takes and retains possession of the same for two years, and thereafter, pending a controversy with the lessor, negligently allows it to become water-logged and sink, so as to constitute a nuisance, it cannot relieve itself of the duty to abate, as to third persons, by repudiating the contract by which possession was acquired.
    Cross-appeals from Wayne; Lillibridge, J.
    "Submitted February 5, 1898.
    Decided July 12, 1898.
    Bill by the board of water commissioners of the city of Detroit against the city of Detroit, the board of health of said city, and U. Grant Grummond, to abate a nuisance. From a decree against the defendant city alone, complainant and the said defendant appeal.
    Affirmed.

      George Gartner, for complainant.

      Charles Flowers and Arthur Webster (C. D. Joslyn, of counsel), for defendant city of Detroit.

      F. H. & G. L. Canfield, for defendant Grummond.
   Montgomery, J.

This is a proceeding by bill in chancery to compel the abatement of a nuisance. The alleged nuisance consists of the steamer Milton D. Ward, which lies aground in Detroit river, near what is known as the Water Works Park. The complainant is a corporation authorized to sue and be sued, and has been by statute authorized to accept as a gift a sum of money devised to the board to be used for the purpose of .beautifying and ornamenting the grounds. The grounds devoted to a park have a frontage on Detroit river of about 1,000 feet, and are kept open to the public as a park known as the Water Works Park. The land is also used for the general purposes of the corporation. In the summer of 1892 an epidemic of cholera was threatened. The board of health of Detroit assumed to make a contract with defendant Grummond, the owner of the Milton D. Ward, to lease of him the steamer, with the privilege of buying. This contract was not definitely authorized by the common council, hut the board of health actually took possession of the boat, and admittedly retained it in possession for nearly two years, when it caught fire through the neglect of its servants, and the upper works were burned away. The board of health offered to return the boat to defendant Grummond, but, as his contract contained a condition that it should be returned to him in like condition as when taken, he declined to receive it in its damaged state. The boat was at this time moored at the waterworks dock. The board of health, and the water board as well, notified the defendant Grummond to remove it, but he declined to receive it, and brought an action against the city for its value, which is still pending. The boat remained moored at the dock for a year after the damage from fire, when a member of the water board secured a moorage for her at some distance away, and in front of Field & Kean’s, where she remained for another year. On August 4, 1896, she was towed back to her present position, partly in front of Water Works Park and partly in front of adjoining property, where, after a time, she filled with water, and sank in six or eight feet of water. The evidence is not satisfactory as to the authority by which she was taken from Field & Kean’s to her present position; but if it be assumed that she was returned by the same authority which moved her away from in front of the Water Works Park in the first instance, we think the responsibility for her presence there was not thereby shifted from the board of health to the water board of the city.

The questions which are raised are:

(1) Whether this wreck is a nuisance.

(2) If a nuisance, is it a private nuisance, such as the complainant has the right to have abated at its private suit ?

(3) Is the defendant Grummond or the city, either or which, responsible for the nuisance ?

It is contended on behalf of defendants that the wreck is not a nuisance, and authority is cited which sustains the proposition that if a ship or other vessel sink by accident, and without neglect or fault, in a river, and is abandoned by the owner, such owner is not bound to remove it as a nuisance. Winpenny v. City of Philadel phia, 65 Pa. St. 135, sustains this view. The reason for the rule is there stated as follows:

“When a vessel is lost by the act of God or by accident, the owner suffers oftentimes great damage; and, when she is a total loss, it seems a great hardship to add to his misfortune the duty of removing the wreck. It would discourage commerce to hold him to so severe a duty; for who would engage in trade if, when he has lost his vessel, he might be forced to incur an expense of more than her original cost in removing the wreck from some difficult position? If compelled by the accident to abandon his property, the duty of removal should rather fall on the public, who are interested in the navigation, than on him.”

This case does not show the existence of these reasons for exemption. This sunken wreck is not the result of an accident. After all the injury which can be claimed to have resulted from accident had occurred, the boat was still afloat, and might easily have been removed. She subsequently sank because water-logged, and because she was abandoned. She was not abandoned because she had sunk.

Is this complainant entitled to maintain this bill to abate this nuisance ? It is well settled that a public nuisance does not furnish grounds for an action by an individual. The complainant in this case, while charged with public functions, does not represent the public generally in the matter of the protection of the highway or river adjacent to the city. This is not claimed on its behalf, but it is contended that it has the same rights that an individual has; and this proposition, we think, is sound, in so far that, for any infringement of its property rights, the complainant would have the same right to seek redress as an individual. The question recurs, Would an individual have the right to maintain this bill to compel the abatement of this nuisance ? It is true, a public nuisance may at the same time be a private nuisance, and an individual who suffers peculiar damages — that is, damages peculiar to himself — -may have his action; but, before such action can be maintained, it must be shown that the damage -which, the complainant suffers differs not only in degree, but in kind, from that which must be deemed common to all. This case shows not only a nuisance by obstruction to navigation, but an incumbrance of complainant’s property, as for many purposes the ownership of complainant extends to and includes the place where this wreck is. Lorman Benson, 8 Mich. 18 (77 Am. Dec. 435); Hall v. Alford, 114 Mich. 165, and cases cited. That one who owns the fee of a highway obstructed by a nuisance may maintain an action appears to be settled. 2 Wood, Nuis. (3d Ed.) § 697, and cases cited.

The question remains as to which of the defendants, if either, is responsible for this nuisance. As before stated, we think the removal of the vessel for a time, and its subsequent return, do not affect the responsibility. We do not think the question of. the validity of the contract between the city and defendant Grummond involved, in so much as the bill alleges such a contract to have been made, and the answer of the defendant Grummond admits it. The important fact is that the city, through its board of health, took actual possession of the boat, and retained possession for two years. Responsibility for a negligent or wrongful disposition of the property cannot be avoided by repudiating the contract by which possession was acquired. Has the city relieved itself of responsibility by offering to return the boat to defendant Grummond ? We think not. There can be no claim that Grummond assumed actual possession of the property, and until he did, or until he was willing to receive it into his possession, the responsibility to third persons was the responsibility of the city. The circuit judge was of this opinion, and granted relief against the city alone. We affirm this decree.

The other Justices concurred


text:
    HAUSER v. BURBANK.
    1. Drains — Void Application — Relaying—Statutes.
    After considerable work bad been done under a drain contract, the application on which the proceedings were based was declared void by the court. Thereupon a petition was filed asking that the drain be relaid and completed. The usual proceedings followed, the validity of which was questioned on the ground that, the original application for the drain being void, the proceedings to relay such drain were jurisdictionally defective. Held, that the proceedings were within 3 How. Stat. § 1740p3 (providing that whenever any drain has been located, established, and the work of construction completed or partially completed, and any court has declared such proceeding to be illegal or void “for any cause other than that such drain is unnecessary, and not conducive to the public health, convenience, or welfare,”-the commissioner shall proceed to relay and complete such drain under the provisions of this act, etc.); and that the statute in question is not open to the objection that it seeks to dispense with jurisdictional essentials.
    2. Same — Description—Sufficiency.
    A description in an application for a drain, which, after defining clearly the place of beginning in a given section of a specified town and county, recites that it shall run “ in a westerly and northwesterly direction through said section; thence, crossing the southwest corner of ” a stated section in a different township, into another section of said township, “at a point about 12 rods north of the southeast corner” of the last-named section; “thence, running in a northerly direction, following the general course of H. creek, to a point where said creek crosses the north line of” the last-named township, — is sufficiently accurate to give the commissioner jurisdiction.
    B. Same — Watercourses.
    A drain commissioner is authorized, under an application to lay out a drain along the general course of a creek, to include portions of the creek, and deepen, widen, or straighten the same, in view of 3 How. Stat. § 17407i4, as amended in 1893 (Act No. 203), providing that where a natural watercourse shall need cleaning out, deepening, or widening, and no proceedings have been had previously to establish such watercourse, it shall be immaterial whether the first proceedings, shall be to clean out, lay out, deepen, or widen, but the commissioner shall take such steps as may be necessary to obtain a right of way, and go on with his proceedings in the manner provided by law.
    Error to Berrien; Coolidge, J.
    Submitted April 5, 1898.
    Decided July 12, 1898.

      Certiorari by Michael B. Hauser to review the action of John E. Burbank, drain commissioner of Berrien county, in laying out and establishing a drain. From a judgment setting aside the proceedings, defendant brings error.
    Reversed.

      James O’Hara and Gore & Harvey, for appellant.

      George W. Bridgman and Edward Bacon, for appellee.
   Montgomery, J.

Certiorari was issued from the circuit court to review proceedings laying out and establishing a drain. The circuit judge set aside the action of the drain commissioner, and this ruling is before us for review. A large number of objections were set out in the affidavit for certiorari, very few of which call for any discussion whatever. The meritorious questions raised may be considered under two or three heads. A brief history of the proceeding is essential to an understanding of the points involved. An application for a drain along substantially the same route followed by that involved in this proceeding was made in December, 1894, and proceedings were had to establish and lay out such a drain. The drain commissioner proceeded so far as to let contracts, under which about one mile was constructed. The question of the regularity of these proceedings was afterwards raised, and a suit instituted in the circuit court of Berrien county, in chancery. The court, on a hearing, adjudged all the proceedings subsequent to the first order of determination null and void. The commissioner then proceeded anew to make application to the probate court for the appointment of commissioners to determine the necessity of taking certain lands for the purpose of the drain. This was opposed on the ground that the original application was a nullity, and failed to give the commissioner jurisdiction. The probate judge so held. The petition under which the proceedings now under review were held was then filed on March 24, 189?. The usual proceedings followed. The necessity for a drain was determined by a' jury, the damages to the owners of the land appraised, the report of the jury confirmed by an order of the probate court, and the final order of determination was made by the commissioner. The plaintiff in certiorari thereupon filed his affidavit, and sued out the writ.

The first objection made before the probate court was that the application was to relay a drain the proceedings for which were declared void because of jurisdictional defects in the original application. Section l?40c/3, 3 How. Stat., provides:

“Whenever any drain has been located, established,, and the work of construction completed or partially conu pleted, and any court has declared such proceeding to he illegal or void for any cause other than that such drain is unnecessary, and not conducive to the public health, convenience, or welfare, the commissioner shall, without unnecessary delay, proceed to relay and complete such drain under the provisions of this act, and reassess upon the lands benefited by such drain the original cost thereof, together with the expenses of relaying and completing, and shall continue so to do until such drain has been' legally established and constructed.”

This provision would appear to be broad enough to warrant this proceeding if the statute is valid. We see no reason why this equitable provision should not be sustained. It is not a proceeding to declare valid and effectual proceedings already had. If it were, the power of the legislature would be limited to dispensing with non-" essentials. Jurisdictional essentials could not be dispensed with. Cooley, Const. Lim. (6th Ed.) 471. The rule is that the legislature may validate acts which it might previously have authorized, but can go no further. As the legislature could not provide in advance that the steps to acquire jurisdiction might be omitted, so it cannot, by direct enactment after failure to comply with adjudicated prerequisites, declare the proceedings valid notwithstanding. But this is not an attempt to validate these proceedings without giving the parties concerned an opportunity to be heard. Certain work had been done in advance of a valid determination of necessity, and in advance of a valid condemnation. It is none the less equitable that those benefited by this work should pay for it, nor is it any the less proper that the question of the necessity for taking property for a public use be determined. See Miller v. Graham, 17 Ohio St. 1; Goodrich v. Inhabitants of Lunenburg, 9 Gray, 38; Grim v. Weissenberg School District, 57 Pa. St. 433 (98 Am. Dec. 237); Cooley, Tax’n (2d Ed.), 302. It is true, the court in Houseman v. Kent Circuit Judge, 58 Mich. 367, refused to follow Miller v. Graham, supra; but this was on the ground that the Michigan statute under consideration in the Houseman Case attempted to confer administrative functions on the courts. No such objection can be urged to the present statute.

It is next objected that the description of the proposed drain in the application is insufficient. This description reads as follows:

“Commencing at a point about 50 rods south of the northeast corner of section 1, Weesaw township, in said county of Berrien, where Hickory creek crosses the highway along the easterly line of said township of Weesaw; thence, in a westerly and northwesterly direction, through said section 1; thence, crossing the southwest corner of section 36, township of Lake, in said county, into section 35, in said township of Lake, at a point about 12 rods north of the southeast corner of said section 35; thence, running in a northerly direction, following the general course of said Hickory creek, to a point where said creek crosses the north line of said township of Lake. Said drain to have a bottom width not to exceed 10 feet, with sides sloping therefrom at an angle of not more than ,45 degrees, and of sufficient depth to carry off all surplus water. The line of said drain, as proposed above, is to be the center line thereof; and the land to be used in its construction is to be taken in equal width along either side of the said center line.”

The requirement of the statute is that the petition give a general description of the beginning, the route, and the terminus. This description was sufficiently accurate to give the commissioner jurisdiction. As was said by Mr. Justice Champlin in Kinnie v. Bare, 68 Mich. 627, speaking of the present provision of the statute: “ What it contemplates is that the termini and route be approximately described for the information of the commissioner; and it is left for him to ascertain and determine the practical route and termini.” See, also, Gillett v. McLaughlin, 69 Mich. 547; Clark v. Teller, 50 Mich. 618.

The only remaining objection which we deem it necessary to discuss at any length is the one which states that ‘ ‘ there is nothing in said application in relation to cleaning out, deepening, widening, or straightening any watercourse.” It is contended that, inasmuch as the general' course of the contemplated drain is along the course of the Hickory creek, the proceedings should have been taken under the provision of the law authorizing the improvement of the watercourse. Section 17407i7, 8 How. Stat., provides:

“All the powers conferred by this act for establishing and constructing drains, and for the enforcement of assessments therefor, shall also extend to and include the deepening, widening, and extending of any drains which heretofore have been laid or may hereafter be constructed; also to straightening, cleaning out, and deepening the channels of creeks and streams, and the constructing, maintaining, remodeling, and repairing of levees, dykes, and barriers for the purpose of drainage. The commissioner may relocate or extend the line of any drain if the same be necessary in order to provide a suitable outlet, in which case he shall cause a survey thereof to be made: Provided, that no proceedings affecting the rights of persons or property shall be had under this section, except upon a like application, notice, hearing, and award prescribed in this act for the construction of drains in the first instance.”

This section does not provide for the form of the application. Provision is made in section 1740/i4 for cleaning out established drains; but obviously such a proceeding would not have been adequate in this case. By an amendment to this section, adopted in 1893 (Act No. 203, Pub. Acts 1893, chap. 8, § 1), it was provided:

“In cases where a natural watercourse shall need cleaning out, deepening, or widening, where no proceedings have been had previously to establish such watercourse, it shall be immaterial whether the first proceedings shall be to clean out, lay out, deepen, or widen, but the commissioner shall take such steps as may be necessaiy to obtain a right of way as heretofore provided, and go on with his proceedings in the manner provided by law.”

Under this provision, we think it clear that the petition was sufficient, and that the commissioner, under a petition to lay out a drain along the general course of this creek, might include portions of the creek, and deepen,, widen, or straighten the same.

We have examined and considered the other points made, and discover no error in the proceedings of the commissioner or probate judge warranting a setting aside of the proceedings. The judgment of the circuit court will be set aside, and the certiorari quashed, with costs of both courts.

The other Justices concurred.


text:
    KLEIS v. NIAGARA FIRE INSURANCE CO.
    1. Insurance — Agreement to Insure — Agent’s Personal Contract.
    A promise by an agent of several insurance companies, upon the receipt of a premium, to issue a policy of insurance at a future day, and Ms statement that the property would be insured in the meantime, without designating any particular company, do not constitute an oral contract to insure, binding upon the company which subsequently issues a written policy of insurance on the risk, but is at most the personal contract of the agent.
    2. Same — "Variation of Policy by Parol.
    One who accepts a policy of insurance issued to him upon his written application cannot ignore the writings, and sue upon a preliminary parol agreement to issue a policy of different form; his remedy, in case of fraud or mistake, being the reformation of the contract in equity.
    Error to Allegan; Padgham, J.
    Submitted April 8, 1898.
    Decided July 12, 1898.

      Assumpsit by Maggie Kleis against the Niagara Fire Insurance Company upon an alleged contract of insurance. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Howard, Roos & Howard, for appellant.

      Gerrit J. Diekema, for appellee.
   Hooker, J.

The undisputed evidence in this record shows that the plaintiff’s husband, acting upon her behalf, made application to Walsh, the local agent of the defendant, for insurance upon the plaintiff’s building, upon a Saturday. He desired insurance to the amount of $1,000. The rate was fixed, and he paid Walsh $10, taking his receipt, reading as follows:

“Holland, Mich., May 25, 1895.
“Received of M. W. Kleis ten dollars, insurance money for three years on house and household goods.
“W. C. Walsh.”

Walsh promised to draw the policy upon the following Monday, and did so, and two or three days later the policy was delivered to the plaintiff’s husband, who called for it according to - agreement. In September following, the property was burned, and this action is brought to recover the insurance. The policy contains a clause, to be found in all Michigan standard policies, to the effect that the—

“ Entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance. * * * No officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as, by the terms of this policy, may be the subject of agreement indorséd hereon or added hereto; and, as to such provisions and conditions, no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist, or be claimed by the insured, unless so written or attached.”

As a fact, the plaintiff had, at the time the defendant’s policy was purchased, insurance in another company, to the amount of $400, $300 of which was upon the dwelling, and $100 on the contents; and afterwards she procured $500 more upon the dwelling, and $100 on the furniture. At the time of the fire, then, she had in the three companies $l,550 upon the dwelling, and $450 upon the furniture. The testimony shows that the plaintiff’s husband considered ■ the dwelling worth $1,000. Other testimony indicates that it could have been replaced for $500. The plaintiff’s husband testified that, at the time of his application for the insurance in the defendant company, he stated to the agent that there was other insurance upon the property, procured from one Marsh, and that, as soon as he obtained sufficient money, he intended to take out more insurance upon the premises; and that Walsh told him not to go to Marsh for such prospective insurance, but to come to him (Walsh) for it; but that he afterwards procured it from Marsh. The plaintiff also testified that at the time she signed the application, which was some days later, she asked Mr. Walsh: “‘If we wanted to insure higher, must I let him know?’ and he told me, ‘No;’ I could insure in any policy I liked, but he would like to insure me.” This was after the policy was received. This testimony is disputed, but, for the purposes of the case, must be assumed to be true.

The following quotation from the brief of counsel for the plaintiff will show his understanding of the issue which was made:

“ The first point relied upon by the appellant is that there can be no recov.ery under the declaration in the case. This point was raised by the defendant early in the trial of the case in the court below, and, we think, was properly overruled by the circuit judge. The declaration contains but one count, and the plaintiff relies entirely upon a verbal contract made with the defendant on the 25th day of May, A. D. 1895. On that day, all the terms and conditions of insurance were agreed upon between the parties, and the money was paid by the plaintiff, and a receipt taken therefor; and the agent of the defendant then stated that he would draw up the policy on the next Monday, and that, if the property burned before said Monday, it would be considered insured. There was no written application, and the whole contract was a verbal one. If the plaintiff had declared upon a written contract, and had made the policy issued the basis of her action, then it is true that if, either through mistake or fraud, the written contract did not represent the intentions of the parties, the injured party must have come into a court of equity to have the contract reformed before she could base her action upon it.”

He seems to concede that he is not attempting to recover upon the policy, but upon the oral contract for a policy; and the declaration alleges that the policy delivered was not in conformity to the agreement for insurance, and that—

“By reason of the defendant not performing its said contract and agreement for insurance so made with the plaintiff, as aforesaid, and by not executing and delivering to the plaintiff a policy of insurance therein and thereby insuring the plaintiff against loss or damage by fire upon said property, according to the terms of said contract and agreement for insurance so made as aforesaid, and by fraudulently inserting in said pretended policy said clause relating to other contracts of insurance upon the property covered in whole or in part by said policy of insurance delivered by defendant to plaintiff, she is injured and has sustained damage to the amount of one thousand (1,000) dollars.”

We are justified in saying, therefore, that the plaintiff’s brief shows that recovery was sought upon an alleged oral contract, made by the defendant, to insure her building and its contents, and to issue a policy to her in conformity to their talk. The evidence in the case shows conclusively that the defendant was not designated as the company to furnish this insurance and issue the policy. Plaintiff’s husband, who is alleged to have made the oral contract, testified that he met Mr. Walsh, and told him that he wanted to insure some property; and Walsh said it was all right, and asked how much, and Kleis told him; and then Walsh asked him a few questions, and then said, “Well, it is all right,” but that he was too tired to draw up the policy that night, so he gave him a receipt for the money, reading as follows:

“Holland, Mich., May 25, 1895.
“Received of M. W. Kleis ten dollars, insurance money for three years on house and household goods.
“W. C. Walsh.”

Walsh promised to draw the policy the first thing Monday morning, and told Kleis to call in any time the next week, and get it, and also said, “if it burns from now until Monday, we will call it insured.” It appeared that Walsh was agent for several companies, and it is manifest that, had a fire occurred before Monday, it would be difficult for the court to find from this testimony that the defendant was a party to the contract, any more than any one of a dozen other companies. There was therefore, at the most, a contract with Walsh to insure. New Orleans Ins. Ass’n v. Boniel, 20 Fla. 815; Sheldon v. Insurance Co., 65 Wis. 438. So far, then, there was no oral contract upon which this action can be maintained. A few days later, the policy which was subsequently issued by the defendant company was received by the plaintiff; and, a week or two after that, she was required to sign an application, which she did. This was the completion of a contract, evidence of which was contained in the two writings, viz., the application and policy, which merged all negotiations and agreements in the writing; and, under innumerable authorities, it is not subject to contradiction or variation by parol in an action brought upon it. If the action is brought on the oral contract underlying it, a -complete answer is that the negotiations were reduced to writing, and executed and accepted by the parties. The plaintiff accepted the policy, and, after the property was destroyed by fire, she made claim under it; but, when the defense was set up that she had broken a condition of the policy, she brought her action, not upon the policy, but upon what the declaration alleges to be an oral contract for a policy, by which the defendant is said to have agreed to issue a pqlicy of insurance which should not preclude other insurance without its assent; and this it is claimed was never done, although a policy did issue, and was accepted by the plaintiff.

The plaintiff cannot sustain this declaration by the record — First, because there never was a time prior to the delivery of the policy when it can be said that the defendant had any contract relations with the plaintiff; and, second, because the evidence conclusively shows that the parties reduced the result of their various interviews and negotiations to writing, and that the policy accepted and kept by the plaintiff, and the application held by the defendant, are the evidence of the contract. We need go no further than our own Reports for a cloud of cases which sustain the doctrine. See 1 Jac. & C. Dig. 882, 3 Jac. & C. Dig. 380, where the Michigan cases are collected.

If, as counsel contends, this policy was not in accord with the oral agreement, she might have had it reformed by applying to a court of equity on the ground of mistake, and rescinded, if not reformed, upon the ground of fraud, if there were fraud. But she has taken a different course. With her written contract outstanding, she seeks to ignore it, and recover upon a contract for a contract, and depends for success upon her ability to convince a jury that the written contract that she holds is not such a contract as the defendant agreed to make. Counsel does not cite a case in point, and excepta dictum in the case of O’Donnell v. Insurance Co., 73 Mich. 4, and Connecticut Fire Ins. Co. v. Monroe Circuit Judge, 77 Mich. 231 (18 Am. St. Rep. 398), and a count in a declaration which the court held to introduce a new cause of action in the latter case, produces no authority to sustain his position; while, in the case last cited, Mr. Justice Morse states that a mistake or fraud in writing a policy cannot be corrected in a court of law. If the plaintiff is right in her contention, the same rule would apply when the property was misdescribed, or where in any respect the policy issued and accepted, or contract executed, did not conform to the oral negotiations preceding its issue. Equity has power to deal with these questions; but in an action at law, when it appears that the contract has been deliberately put in writing, and accepted, the writing is the contract. In Gerrish v. Insurance Co., 55 N. H. 358, it is said:

‘ ‘ A policy is the usual evidence of a contract of insurance. It is not necessary, however, in order to enable the assured to maintain an action upon the contract. If issued, it is the best evidence of what the contract was, and parol evidence would not be admissible to contradict it; but when none is issued, the contract may be proved by any competent evidence. ”

In New York Ice Co. v. Insurance Co., 23 N. Y. 357, the court held that the policy might be reformed. Phoenix Fire Ins. Co. v. Gurnee, 1 Paige, 278 (19 Am. Dec. 431); Phoenix Fire Ins. Co. v. Hoffheimer, 46 Miss. 645; Stout v. Insurance Co., 12 Iowa, 371 (79 Am. Dec. 539); Longhurst v. Insurance Co., 19 Iowa, 364. In Hammel v. Insurance Co., 50 Wis. 240, it was held that in an action for loss by fire, on a proper complaint and prayer, the equitable jurisdiction would permit reformation and enforcement of the policy. In Collett v. Morrison, 9 Hare, 162, 12 Eng. Law & Eq. 171, it was held that, when a life policy was drawn in a form differing from the terms of the agreement, equity would deal with the matter on the terms of the agreement. Harris v. Insurance Co., 18 Ohio, 116 (51 Am. Dec. 448); Holmes v. Insurance Co., 10 Metc. (Mass.) 215 (43 Am. Dec. 428). In Mead v. Insurance Co., 64 N. Y. 453, it was held that “to justify a court of equity in changing the language of a written instrument sought to be reformed, in the absence of fraud, it must be established that both parties agreed to something different from what is expressed in the writing, and the proof should be so clear and convincing as to leave no room for doubt.” That case involved the identity of the premises agreed to be insured. If the plaintiff’s contention in the present'case is correct, the plaintiff in that case should have disregarded the policy, gone into a court of law, and shown by parol that the policy did not conform to the oral arrangement, and recovered the loss under the guise of damages for the breach of the oral contract to issue a policy, on a bare preponderance of proof. See, also, Van Tuyl v. Insurance Co., 55 N. Y. 657; Bryce v. Insurance Co., Id. 240 (14 Am. Pep. 249); National Fire Ins. Co. v. Crane, 16 Md. 260 (77 Am. Dec. 289); Tesson v. Insurance Co., 40 Mo. 33; Hearne v. Insurance Co., 20 Wall. 488; Snell v. Insurance Co., 98 U. S. 85.

The inference to be drawn from these cases is that, where there is fraud or mistake, equity may afford relief, but will do so cautiously, and will require clear proof of the fraud or mistake. They negative the idea that one may reduce his oral agreement to writing, formally execute or accept and keep it, and at a later time' ignore the solemn writing, and bring an action upon a preliminary agreement. This would be an innovation that would render written contracts no better than oral ones, and practically make them subject to variation and contradiction by parol, and, by indirection, evade one of the best and most uniformly settled rules of law, and render obsolete a branch of equity jurisdiction. This seems to be indicated by the opinion of Mr. Justice Morse, herein-before quoted. Where an oral contract for insurance, complete in all essentials, has been made, and a policy promised under it is refused, we have no doubt that an action will lie for the breach; and possibly in some cases the measure of damages would be the loss; in others it might not. In Dailey v. Accident Ass’n, 102 Mich. 299 (26 L. R. A. 171), it is intimated that a recovery might be had upon an oral contract. But that was a case where the insured was killed before the policy reached him. He had not seen it, and had therefore no opportunity to accept or reject it. There was no written contract. There was an oral one; but, when the oral contract has merged in a writing executed and accepted by the complaining party, he must seek his remedy in equity if unwilling to abide by the writing. It follows that a recovery should not have been permitted upon the declaration.

Had this declaration'counted upon the policy, and the defense been made that the other insurance forfeited the policy, it would have led to the question of waiver of the condition by the defendant.

As there could be no recovery under this declaration, • the judgment is reversed.

The other Justices concurred.