author: Blair, J.

text:
    REASON v. PETERS.
    1. Waters and Watercourses — Milldams — Flowage — Evidenoe — Sufficiency.
    On a bill to enjoin the maintenance of a milldam at an unlawful height, evidence examined, and held, to show that complainant’s lands were flowed throughout the year to a greater ■ extent than they ever had been during the ordinary seasons, and that the water had been raised 20 inches above its usual height.
    2. Same — Prescriptive Rights — Creation — Continuous Occupation. .
    Occupation and use of a right of flowage or pondage, in order to create a prescriptive right, must be continuous and uninterrupted whenever necessary in the operation of the power, but need not necessarily be constant in the sense of daily occupancy or use.
    Appeal from Livingston; Miner, J.
    Submitted April 9, 1907.
    (Docket No. 32.)
    Decided June 3, 1907.
    Bill by Floyd Reason against Frank M. Peters to enjoin the maintenance of a dam at an unlawful height. From the decree rendered, both parties appeal.
    Remanded for further proof on the question of damages, unless defendant complies with certain conditions.

      Louis E. Howlett, for complainant.

      William P. Van Winkle, for defendant.
   Blair, J.

Complainant is the owner of certain farming lands in the township of Putnam, near the village of Pinckney, in said township. Defendant is the owner of a flouring mill property in the village of Pinckney. The mill was built as a water power mill in 1836, and has been in operation continuously since that time. The water power is obtained by damming Portage creek, which flows in an easterly direction through the village of Pinckney, and a short distance north of complainant’s land. The dam extends from the west side of the mill in a westerly and southwesterly direction for about 60 rods, and its lowest point is the south bank of the race for a distance of about 150 feet from the mill. The mill stands about 20 rods east of the highway, running south from the village of Pinckney. The wasteweir was about 35 or 40 rods west of the mill.

“ The greatest strain is on that portion of the dam toward the southwest end. The dam angles, after it passes the wasteweir, to the south. Prom the wasteweir to the mill it runs nearly east and west. There is more strain upon the dam at that point because it is exposed to the winds from the west more than any other place, and the great bulk of the water is right against that part of the dam, and the embankment is higher there. That was the lowest point in the ravine through which Portage creek runs, the natural water bed. The dam is higher at that point than any other from the surface of the soil. I would think it was 10 feet high at that point, wholly artificial, and, as we get farther to the west, the artificial portion of the dam is not so high. Same condition is true as you go toward the east. Between the wasteweir and the road and the bank is not high and runs off nearly on a level for some distance; then slopes gradually. The greatest strain on the dam is from the wasteweir to the west end, and, if the wind blew from the northwest, it would blow the water over against that portion of the dam. * * *
“Across the east end of the race, near the mill, there is what we call a ‘ weed rack,’ consisting of a timber about 8 inches by 8 inches in size, and 18 or 20 feet long, laying across the race from one bank to the other, with slats fastened onto it standing up and down in the water to catch the weeds that flow down the race. That weed rack is probably 6 or 8 feet from the engine house, which is a little building built at the west side of the mill. The race or pond at that point is probably from 16 to 20 feet wide. The race was a little narrower at the west end than at the east end, and at a point where the north and south road crosses the race it was probably 14 or 16 feet wide. * * * That wasteweir was opposite the pond, and about 20 rods west of this north and south highway.”

From 1882 to 1888 the mill was owned and operated by-Thompson Grimes and Frank D. Johnson. From 1888 to 1895 the property was owned by E. A. Mann, and from 1895 to 1896 by a man of the name of Parmalee. Thomas Birkett purchased the property in 1896 and owned it until 1901, when he sold it to the defendant Peters for $7,000. Birkett rented the property to one Klem in July, 1896, who operated it until the following spring, since which time until the sale to the defendant the mill was operated by Robert Erwin. The pond extends westerly from the dam about miles, and the southerly bank is about 20 rods north of complainant’s land.

Between complainant’s land and the pond is a highway running east and west next north of his land, and then a strip of marsh, called in the record the “Haze marsh.” The marsh at the point where it enters complainant’s land becomes narrow and extends across the northeast part of the parcel, then broadens out on Monk’s farm, lying next east of complainant’s land, finally turning back upon the south end of complainant’s land. In the piece of marsh next to the highway, called the “front marsh,” there are some six or seven acres, and in the other piece, called the “back marsh,” some seven or eight acres. These two pieces of marsh are connected with that portion of the marsh upon Monk’s land, which consists of from 11 to 15 acres, making about 30 acres in the whole marsh on these two farms.

The mill was fitted for operation by steam after E. A. Mann went in. The mill was overhauled and a double set of rollers put in in 1883, “and in 1886 or 1887 put in full roller process.” The dam broke away under Klem, and under Erwin, about two years later. The dam also gave way under defendant.

“That was the first year I bought the property, four years ago last summer. Then there was a break in the dam just west of the wasteweir, and it went out for the length of about 40 feet on the top and sloping down to the bottom, and that we filled in with earth and drew dirt between that break and the cemetery hill on top of the dam. Don’t think we raised the dam at that time any from what it usually was.”

On the 11th day of August, 1905, complainant filed his bill of complaint, alleging that within the last 10 years the dam has at different times been repaired and likewise the wasteweir, and at each time of making repairs thereto the said dam and the said wasteweir therein has been built higher than it had been built before, the result being that it has caused the water in the said stream to rise higher in the pond and to cause the waters thereof to flood more land than it had formerly done; “that, until recently, none of the land described as belonging to your orator was flooded because of damming the said creek;” that since the repairs have been made in the last five or six years on the said dam and the said wasteweir a portion of the said lands are continually flooded and under water, rendering at least 10 acres of said parcel as wholly unfit for cultivation and of no value; that a large part of the remainder is kept wet and of less value for farming purposes; that a few weeks ago it became apparent to the owner that the dam and wasteweir were in need of further repairs, the water in the said pond was permitted to flow through the said wasteweir for the purpose of enabling them to make said repairs; that at the present time the defendant is engaged in making the said repairs; and that the wasteweir is wholly out, and that the defendant is about to place a new one therein, and—

“As your orator is informed and believes, is intending to build the said dam and the said wasteweir to such a height as to get a head of water as high as it has -been during the last two or three years and about three or four feet higher than it had been raised at any period of the mill’s history until within the last six or seven years; that if the defendant is permitted to build the dam and waste-weir to the height that he intends to build it that it will flood a large part of your orator’s land herein described, and do him irreparable injury.”

The answer denied all the material allegations of the bill, and averred—

“The truth to be that none of said land has been flooded because of damming said creek recently more than it was flooded for the period of 50 years and upward.”

It is conceded that whatever rights of flowage the defendant possesses have been acquired by prescription, and the principal question of fact in the case was whether complainant’s lands had been flowed to a greater extent during the 9 or 10 years preceding the filing of the bill than during the period theretofore. Upon this issue much conflicting testimony was taken. The circuit judge, after personally viewing the premises, in company with the parties and their attorneys, found—

“ That the milldam proper had been raised at different times so that at the present time it is somewhat higher than it was some years ago, but that portion of the mill-dam where the race is itself had not been materially raised to exceed three or four inches, or six inches at the outside, but it appeared to the court that the water had raised and had flowed back on the lands of the complainant to a greater extent than it used to. It seemed to me that this was caused from two or three causes combined. In the first place, in the last few years, we have had unusual wet seasons, and there had been a large amount of water turned into the millpond from the adjacent country; that, during that time, I think two different drains have been dug into the creek or stream that empties into the millpond, thereby causing a very large amount of water to flow into the stream, and the evidence on the part of the complainant and on the part of the defendant, or especially on the part of the defendant, shows this state of facts: That on former occasions, former years and during the spring when the snow was melting or during spring freshets, as it is called, the water would flow back on the land of the complainant, but as the spring freshet passed away it would recede, and during the balance of the year the land in question would be used for pasture land. But it would seem that during the last three or four years, at least, that the water has been kept up at spring height, you might call .it, all the time. For instance, at the time I was there, which was in February, I think, the water was back upon the land in question to quite a depth, I should think at least two feet, and the ditch that was formerly dug from this marsh into the millpond, the water did not run either way down near the highway under the culvert, showing that the water itself on this land in question was of the same height as the water in the millpond. * * *
“In this case, if the only question was as to whether this land had been overflowed at the same amount at the present time, that it was in the springtime, I should decide in favor of the defendant, but I think the evidence, and the weight of the evidence, in fact, the great weight of the evidence upon the part of the defendant even, is that this land has not been overflowed in its present condition only for a small portion of the year during the spring months or during the time when there was a heavy freshet previous to nine years ago. * * *
“If I remember correctly, when I visited the place, and I think the evidence showed that, the dashboards came within a foot and a half from the top, and I think the court will decree that the defendant be required to lower those dashboards 15 inches and to continue them lower from the 1st day of April to the 1st day of December of each year, and that the complainant recover his costs to be taxed. In this case I should have given a decree of damages instead of compelling the defendant to lower the dashboard's, but there was not sufficient evidence introduced in the case on either side to warrant me in giving a decree in that respect. The only evidence that was given in the case was on the part of the complainant, who claimed his damages were some $700, and from my observations of the premises I do not think that he was entitled to it.”

A decree having been entered in accordance with the findings of the court, both parties have appealed to this court.

The preponderance of the evidence in this case supports the claim of complainant that the waters of the pond have overflowed his lands to a greater extent since 1896 than theretofore. Complainant and Mr. Monks (who owned the 80 next east), and who were in a situation to know more about their own lands than others who did not occupy them, testified that they never knew the water from the pond to back up onto their land until Mr. Klem operated the mill. Mr. Monks testified :

“I remember when Mr. Klem went into the mill, between 9 and 10 years ago. Up to that time the water had never stood back upon this 80 of mine, except it might be in this way: In the spring of the year and heavy waters, there might be some water lay on my land for a day or two, when it thawed up in the spring of the year. That would be water that flowed down from the land south. My marsh on my 80 is a part of the same marsh as the two pieces upon Reason’s. * * *
“ I have known the land on the Reason marsh as many years as I have mine. Up to nine years ago I have known the marsh on the south end of the Reason 80 to be mowed different years. I never knew that to be covered with water throughout the season up to nine years ago. Up until the last few years I never knew the water to stand back from the pond upon the piece of marsh upon the north end of the Reason 80; never did up to the time that Klem went into the mill. That marsh was always dry just about the same as mine.”

This testimony is well supported by the testimony of other disinterested witnesses; by the flooding of complainant’s well, theretofore on hard land; the dying of trees, and the rise of water under bridges. The correctness of this testimony is also strongly supported by the testimony of Mr. Birkett, defendant’s grantor. Birkett testified:

“At one time when I owned the mill, Mr. Reason came to me in reference to the water on these marshes. He made a proposition to me in regard to putting in a drain from these marshes underneath the pond, and thence through the dam. He thought that by so doing he could build a dam across the neck, which was quite narrow, I don’t think more than 20 feet, and put that pipe through, so that water coming down from his marsh could be piped under the dam, so there couldn’t be any back water from the dam onto his. After thinking the matter over and talking it over with him, I see the theory was correct. * * *
“ He was going to take a great deal of pains. I see he did, and he put it in good shape and that was all right. I think it worked successfully in a reasonable stage of water as long as they kept up the dam. * * *
“ The dam went out while I owned it, west of the highway, near the middle. I repaired it and built it up some higher than it had been before. I remember when Mr. Klem was in the mill he carried the water higher than it had been before, and I remonstrated with him from time to time, and I asked Barney Lynch to let me know if he continued to carry the water dangerously high. Lynch could at any time tell the height of the water in the pond by the depth of the water in his cellar. Klem went into the mill in the fall of ’96. Reason never complained to me about the water being on his land until the time we were repairing the dam. That was the next season after Klem went into the mill. Then he came to me and told me that the water stood back from the pond upon his land. I told him Klem had been in the habit of carrying the water too high, and that I remonstrated with him on that account. I don’t remember that Reason also told me that the water backed up onto Monk’s, but I understood from him that from the height to which Klem carried the water it backed up onto their land, so there was this arrangement made between Reason and me, whereby they were to put in the tile to take off this surface water and they were to build this little dam. These tile were to run along the edge of the pond, through the dam and out into the wasteweir below the dam. The tile were put in while the water was down in the pond at the time we were repairing the dam after it went out for Klem. I am quite certain the joints of these tile were not cemented together. Reason proposed to put in a little dam on the edge of the pond to keep the water from backing up on their land. I built the dam two or three feet higher than it was when I found it. You see the trouble is it was low and the northwest wind sweeps the length of it and brings the water there. We had to raise that; put stone in front of the dam to protect that part of it, the west end, and no other part, only that that is exposed to the northwest wind. * * *
“ It was never carried as high as the time Klem carried April 19, 1897. That was Sunday night, and it was almost a cyclone from the northwest, and he carried it just as full as it could hold, and, of course, it drove down and washed the dirt off and when it once got to going away the whole business went.”

Mr. Frank Johnson testified:

“I couldn’t say what portion of the time we had a 14-foot head when I was operating the mill. We tried to keep it up there all the time we could. In the spring of the year when we had plenty of water, we would let it run over the wasteweir. In the spring when the water was coming in plenty, we would let it run off so as to be safe, but as the rains and water began to die away we would keep it up as near 14 feet as we could because we needed the water.”

There was also evidence that the south bank of the race at the lowest point in the dam had - been raised from four to six inches by depositing coal ashes there. Mr. Johnson testified that the south bank was not raised at this point while he owned the mill.

“ If there are any ashes on the surface of that dam now on the south bank, then it is higher to the depth of those ashes than it was in 1883.”

Mr. E. A. Mann testified that he did not remember of any ashes being put on this bank while he was there.

If there were any there, it would raise the bank to that extent.”

Complainant and Mr. Pennington testified the last day, of the hearing that they dug down into,this bank at several spots, 15 feet apart, and found, under an inch or so of soil, coal ashes, ranging from four inches at the east end to six inches at the west end. This testimony is undisputed. Since 1895, therefore, when Mann sold out, the dam has been raised from two to three feet, and probably more, on the west end, and from four to six inches at the lowest point in the south bank of the race. While the raising of the dam at the west end would not affect the ponding capacity of the dam, it would affect the height at which the water could be safely carried, and especially during spring floods, with high winds to drive the water against this portion of the dam. Again, during the time that Johnson and E. A. Mann were operating the mill, they were obliged to use steam power to help out the water power, while since Birkett owned the mill it has been operated by water power alone, and ‘ ‘ it took more power to operate the mill after the roller process was put in than it did before.” The raising of the dam affected the height of water which could be safely carried in the spring and fall as well as in the summer. If the dam to the west of the wasteweir were at the same level with the lowest point of the south bank of the race, the water could not be carried near to the top of the race bank without endangering the dam, as experience demonstrated. If the dam near the wasteweir were raised sufficiently high to withstand the assaults of the wind and waves, the race could be carried nearly bank full with safety.

As the first flooding of complainant’s lands by the waters of the pond in 1896 was occasioned by Klem carrying-the water at an unusual and dangerous height, it is reasonable to suppose that, with a higher dam, defendant’s carrying the water at an unusual height has caused the flooding for the years since the little dam was destroyed. The evidence as to the head of .water at the mill or the lowest point in the dam is not very satisfactory. No levels or exact measurements appear to have been taken, either at the mill or elsewhere. The defendant testified that there was 13 feet and 8 inches head when he bought the mill. Birkett testified:

“The race bank on the south side isn’t more than 6 inches higher than the 14 feet. I have had the water in the race high enough so it would trickle over the south bank. That point is the lowest point in the entire dam, and there is a good stiff sod there, so the water wouldn’t cut in. The race bank was never changed any, or raised, to my knowledge. I have been there since I owned the mill, and, as far as I could see, the banks are the same and the flume is the same. While I say that 14 or 15 feet was the highest head or high water mark, I would think if it was lowered to 11 or 12 feet running head that would be about the lowest that they could hold it and do business. I think that about 12 feet running head would be the limit, so that I put the limit between high and low running head at approximately 2 feet. If you get below that, you couldn’t successfully operate the mill. During the time I owned the mill it was operated during all the months of the year and during the time they had sufficient water it was kept up to 14 feet head. In dry times the water would go down, and then in seasons of more rain or wetter times, the water would be held up again.”

The extent of the right of flowage by prescription is not measured by the height of the dam but by the extent of the use of the lands flowed, and the burden of proving the extent of such use—

‘ ‘ Is upon the defendants to show that they have for a period of 15 years, at least, each year flowed complainants’ lands to the height complained of and established by their proofs, and that such use of complainants’ lands by flowage has been adverse, uninterrupted, peaceable, open and notorious.” Turner v. Hart, 71 Mich. 128.

See, also, Chapel v. Smith, 80 Mich. 100; Osten v. Jerome, 93 Mich. 196; A. P. Cook Co. v. Beard, 108 Mich. 17; Pluchak v. Crawford, 137 Mich. 509.

“Occupation and a use of a right of flowage or pond-age, in order to create a prescriptive right, need not be constant in the sense of a daily occupancy or use. It must be continuous and uninterrupted, but not necessarily constant. It is necessarily an irregular use, depending upon season and rainfall; and it is sufficient if the use be the ordinary use and be resorted to without interruption whenever necessary in the operation of the power.” Cornwell Manfg. Co. v. Swift, 89 Mich. 503.

The ordinary use must be determined by the ordinary season. Fluctuation in the height of the water caused either by extraordinary rainfalls or freshets would not enlarge the right, nor would fluctuation caused by unusual drouths diminish the right. Allen v. Electric Co., 144 Mich. 370; Johnson v. Boorman, 63 Wis. 268. The defendant failed to show by a preponderance of the evidence that he was not flowing complainant’s land to a greater extent than it had previously been flowed each year for 15 consecutive years with the ordinary use of the milldam during ordinary seasons, and the complainant, in our opinion, did prove, by a preponderance of the evidence, that his lands were flowed throughout the year to a greater extent than they ever had been during the ordinary seasons, and that the water has been raised 20 inches above its usual height.

In view of the limited extent of the injury and the number affeqted who have a right to complain, its character, the comparative values of the properties, and other considerations presented by the record, we agree with the circuit judge that a decree for such damages as complainant has and will in the future suffer in consequence of defendant’s acts would be more appropriate to this case than a decree to lower the dam or permanently remove flash-boards. We also agree that complainant’s damages were considerably overestimated by him, both in his bill of complaint and in his testimony, and that there is no satisfactory basis in this record for determining the amount of such damages.

Under the circumstances, we think it best to remand the record to the circuit court for the taking of further testimony as to complainant’s permanent damages, unless defendant prefers to reduce the ponding capacity of the dam, by removal of flashboards, 20 inches, in which event complainant’s damages will be the rental value of the lands wrongfully overflowed and injured by such overflow for the period defendant has overflowed them, and a decree will be entered in the circuit court as the case may then appear. Complainant will recover costs of this court.

McAlvay, C. J., and Cabpenteb, Gbant, and Ostbandee, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    JONES v. PENDLETON.
    Saving Questions for Review — Exceptions — Sufficiency — Mandamus.
    Mandamus to a circuit judge to compel him to vacate an order entered by him is a sufficient exception to his ruling to justify review thereof in this court on error.
    Error to Wayne; Brooke, J.
    Submitted April 10, 1907.
    (Docket No. 47.)
    Decided June 3, 1907.
    Assumpsit by Clarence R. Jones, administrator de bonis non of the estate of James A. Jones, deceased, against Edward W. Pendleton for commissions on the sale of real estate. There was an order denying a motion to amend the declaration, and a judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Remanded for the purpose of making the order complained of a part of the bill of exceptions.

      Lehman & Biggs, for appellant.

      William C. Stuart, for appellee.
   Blair, J.

Plaintiff prosecutes a writ of error to review an order denying him leave to file an amended declaration. The nature of the case will be disclosed by a reference to Jones v. Pendleton, 134 Mich. 460, and Jones v. Wayne Circuit Judge, 141 Mich. 408.

We are of the opinion that the mandamus proceedings may properly be treated as an exception to the ruling of Judge Mandell, but the motion for leave to amend and the order and opinion of Judge Mandell are not part of the record before us.

It appearing to the court, however, that justice requires a review of the order made by Judge Mandell, denying plaintiff leave to file an amended declaration, the record is remanded to make said order and the proceedings whereon it is founded a part of the bill of exceptions in this case.

McAlvay, C. J., and Carpenter, Ostrander, and Hooker, JJ., concurred.


author: Grant, J.

text:
    REDFIELD v. REID.
    1. Appeal — Saving Questions fob Review — Objections not Made Below.
    An objection to a decree granting foreclosure of a mortgage, not made in the court below, will not be considered on appeal.
    2. Mortgages — Foreclosure in Chanceen — Decree — Time of Sale.
    Where, in a suit to foreclose a first mortgage, a cross-bill is filed by a second mortgagee who has already procured a decree of foreclosure, the mortgagor is not entitled to have the cross-bill dismissed, and the cross-complainant relegated to his decree of foreclosure and sale in his original case and decreed to sell at once, since it is not in the power of the mortgagor or of the court to say when a mortgagee under his decree shall sell.
    3. Same — Sale—Time to Redeem — Sufficiency.
    Where a mortgagor had ample time to redeem before the rendition of a decree for foreclosure, and the land is not worth the amounts of the mortgages on it, an allowance of 11 days between the decree and sale is not unreasonable.
    Appeal from Wayne; Mandell, J.
    Submitted April 10, 1907.
    (Docket No. 60.)
    Decided June 3, 1907.

      Bill by John R. Redfield, Morgan G. Bulkeley, and Meigs H. Whaples, trustees for the United States for the Scottish Union & National Insurance Company, against William Reid, the American Window Glass Company, the William Reid Company, and others, for the foreclosure of a mortgage. The American Window Glass Company filed an answer in the nature of a cross-bill for the foreclosure of a second mortgage. From a decree for complainant and cross-complainant, defendant William Reid Company appeals.
    Affirmed.
    The defendant William Reid and his wife on November 13, 1901, executed a mortgage for $40,000 to the trustees of the Scottish Union & National Insurance Company upon two parcels of land in the city of Detroit, named for convenience “A” and “B.” The complainants are successors to the original mortgagees. Mrs. Reid died June 17, 1902. On December 15, 1903, Mr. Reid executed another mortgage on parcel B to the defendant and cross-complainant, ther American Window Glass Company, for $19,600. Subsequently Mr. Reid conveyed both parcels to the defendant the William Reid Company by deed, in which he agreed to pay these mortgages. Default was made in payment of the mortgage to the American Window Glass Company, and it, on August 15, 1904, filed its bill for foreclosure. The defendants answered, but by stipulation a decree was entered for the sum of $20,854. Notice of sale was published, but afterwards discontinued; the Window Glass Company preferring to wait until the complainants in this case commenced their foreclosure suit.
    The complainants made the American Window Glass Company a defendant as subsequent mortgagee. The defendant Glass' Company filed an answer in the nature of a cross-bill, sotting up the proceedings under its mortgage, asking that parcel A be sold first, and, if the amount realized upon the sale was insufficient to pay the debt, that then párcel B should be sold to make up the deficiency, and also that it have the right to redeem parcel B from such sale by paying the amount realized upon the sale of parcel B, and that the money so paid in the way of redemption be added to the amount due the company under its said mortgage and decree theretofore rendered. The defendant the William Reid Company answered, admitting certain allegations, neither admitting nor denying others, but denying that the American Window Glass Company was entitled to the relief sought by its cross-bill. The case was heard upon pleadings and proofs taken in open' court, and decree entered for the complainants for $45,507.50, fixing the amount due the Glass Company at $22,074.04, ordering the marshaling of the assets, the sale of parcel A first, and parcel B second, if necessary to make up any deficiency, and—
    “That the defendant the American Window Glass Company is entitled to have any moneys arising from the ■ sale of parcel B over and above the amount necessary to pay up in full the amount so decreed to be due to the complainants, as aforesaid, with interest, costs, and expenses of sale, applied to the payment of the amount herein decreed to be due to the defendant American Window Glass Company, and for moneys advanced to redeem from the sale under the decree of said parcel B.”
    The only evidence of the value of the two parcels is that they are worth not to exceed $60,000.' The decree also provided for a sale within 11 days, unless the amount of the decree were paid within that time.

      Miller, Smith, Alexander & Paddock, for complain'ants.

      Altland & E Esperance (Bernard B. Selling, of counsel), for defendant American Window Glass Co.

      George W. Badford, for defendant Wm. Reid Company.
   Grant, J.

(after stating the facts).

No defense was made in the court below. It is conceded that the mortgagor was in default, and that the amounts due on the two mortgages are correct. Counsel for the appellant, the William Reid Company, insists that the decree should be reversed and the cross-bill dismissed, and the cross-complainant be relegated to its decree of foreclosure and sale in its original case, and be decreed to take steps to sell at once. No such claim was set up in the answer or made upon the hearing in the court below. It cannot, therefore, be made in the appellate court. Miller v. Walker, 141 Mich. 433. If, however, the point were properly made, it could not be sustained. It is not in the power of the mortgagor to say when the mortgagee under his decree shall sell. Neither is it in the power of the courts. In this case it was most equitable and just to all parties that the sale under the decree of the Window Glass Company should await the foreclosure of the prior mortgage. It was entitled to a sale of parcel A first. The owner of the land was not prejudiced thereby.

Reversal is asked because of the short period between the decree and the sale. Counsel for the appellant contends that 11 days was not a reasonable time allowed for redemption before sale, citing Detroit Savings Bank v. Truesdail, 38 Mich. 430, and Fifth Nat. Bank v. Pierce, 117 Mich. 376. Since those decisions were rendered, the legislature, by Act No. 200, Public Acts 1899, required that the lands should not be sold within six months after the filing of a bill of foreclosure, and giving the mortgagor that time within which to redeem. Those decisions, therefore, have no application now. The claim, however, is without merit, for the appellant, defendant, and its grantor had had ample time to redeem before the decree was rendered. The land is not worth the amounts due under the mortgages. Under such circumstances we cannot hold that the time fixed by the decree was unreasonable.

The decree is affirmed, with costs.

McAlvay, C. J., and Blair, Ostrander, and. Hooker, JJ., concurred.


text:
    LORANGER v. CARPENTER.
    1. Tenancy in Common — Adverse Possession — Evidence — Assertions oe Title by Co-Tenant.
    Assertions of title by a tenant in common to a stranger, not communicated to or known by the co-tenant, are not admissible to establish an occupancy hostile to the co-tenant’s title.
    2. Witnesses — Cross-Examination—Testing Credibility.
    Questions put to a witness on cross-examination about immaterial matters, which cannot be used for the purpose of testing the witness’ credibility, are properly excluded.
    3. Evidence — Admissions Against Interest.
    Statements by a tenant in common recognizing the title of her co-tenant are admissible as admissions against interest.
    4. Ejectment — Evidence—Admissibility—Fraud.
    In ejectment, evidence that the title under which plaintiff claims was procured by fraud is inadmissible, a court of equity being the only forum in which to test the validity of the deeds under which plaintiff claims.
    Error to Wayne; Rohnert, J.
    Submitted April 12, 1907.
    (Docket No. 74.)
    Decided June 3, 1907.
    Ejectment by Melissa A. Loranger against Harriet A. Carpenter and another. There was judgment for plaintiff, and defendant Carpenter brings error.
    Affirmed.
    This is an action of ejectment to recover possession of an undivided interest in 13} acres of land. In 1860 the premises were set off by the probate court to Andrew, Harriet, Lyman, and John Bucklin in equal undivided shares as heirs of James Bucklin, deceased. Dower was assigned to the widow in other lands adjoining, and she had no interest in the land in dispute. She subsequently married and became Sarah C. Cole. Lyman and John died unmarried, and their shares descended to the mother, giving her an undivided one-half interest in the land. On January 30, 1873, Harriet and Andrew deeded their shares to one Charles F. Campau. In January, 1891, Campau and his wife mortgaged their interest to .one Joseph Visger. In July, 1893, Campau sold and conveyed his interest to Josiah Riopelle. Visger assigned his mortgage to one Anderson, and Anderson assigned it to the plaintiff herein. All these conveyances were properly recorded. Complainant foreclosed her mortgage in chancery, and obtained a commissioner’s deed in December, 1903. She thereafter instituted this suit. The defense is adverse possession. Mrs. Cole occupied this land in connection with the adjoining land which she owned and occupied as a homestead and dower in .the estate of her deceased husband. They were in one inclosure, and she farmed them or rented them, collected the rent, and paid the taxes, except once when the land was sold for taxes, bid in by the State, and purchased by her. By her will she devised this property'to the defendant. She did not pay the taxes in 1899. One Ross purchased the tax title from the State, and conveyed it to the defendant, Mrs. Carpenter. The case was submitted to the jury, who rendered a verdict for the plaintiff. In answer to special questions, the jury found that Mrs. Cole did not hold the exclusive possession of the whole of this property as a part of her farm adversely and hostile to the rights of Campau under the claim of title to the whole for 15 years prior to her death. The record contains 37 assignments of error. The thirty-seventh assignment includes the refusal to give the 10 requests preferred by the defendant.

      Thomas Hyslop, for appellant.

      Henry N. Brevoort {J. W. Drummond, of counsel), for appellee.
   Grant, J.

(after stating the facts).

The first point made in counsel’s brief is:

“The remarks of the court were entirely uncalled for arid almost before any evidence was offered, and only served to indicate to the jury that defendant had no valid defense.”

The point is not further argued. These remarks were very properly made, and related to the record title, about which there was no dispute. There is nothing in them of which any just complaint can be made.

Testimony of conversations between Mrs. Cole, who was dead, and a witness, of statements made by Mrs. Cole as to her claim, and not in the presence of Mr. Campau, were properly excluded. Campau and Mrs. Cole were tenants in common, and she could not make assertions of title to a stranger which were not communicated to or known by Mr. Campau. Such assertions would not constitute an open act of hostility to Campau’s title.

Counsel for defendant asked a witness on cross-examination whether she had not presented a note against the estate of her mother which she claimed was signed by her mother. This was properly excluded. It was immaterial to the issue in the case, and could not be used for the purpose of testing the witness’ credibility.

Statements made by Mrs. Cole recognizing the title of defendant Campau were properly admitted. They constituted admissions against her interests.

Defendant sought to show that Campau obtained the deed of her one-fourth interest from defendant by fraud. The evidence was properly excluded. Plaintiff had the legal title, and a court of equity would be the only forum in which to test the validity of a deed from defendant to Campau and the other deeds by which plaintiff obtained her title.

Several other objections are raised to the testimony, but the defendant’s counsel neither in his assignments of error nor in his brief refers to the record where the testimony is to be found. We have examined the record and find nothing prejudicial to the defendant’s case. They are not of sufficient importance to discuss.

The court correctly instructed the jury as to the acts of hostility required by one tenant in common to constitute adverse possession against his co-tenant. These principles are well understood, and a statement of them is unnecessary. The defendant’s requests so far as they were proper were in substance contained in the oral charge. The plaintiff was the owner of the record title. It is doubtful if the facts made by the defendant’s proof were sufficient to justify a verdict of title by adverse possession. It was, however, left to the jury, and we think they reached the proper conclusion.

The judgment is affirmed.

McAlvay, C. J., and Carpenter, Blair, and Ostrander, JJ., concurred.


text:
    BUTCHER v. CAPPON & BERTSCH LEATHER CO.
    1. Attachment — Affidavit—Sufficiency.
    An affidavit for attachment which does not state that the defendant therein is indebted to the plaintiff, but states that he is indebted to the deponent, one of the plaintiffs, is jurisdictionally defective, and not subject to amendment.
    2. Same — Appearance — Filing Bond — Waiver of Defects in Proceedings.
    The dissolution of an attachment, by giving the statutory bond to pay any judgment which may be recovered in the suit commenced by the writ, operates as an appearance, converts the suit from an action in rem into an action in personam, and waives any defect in the affidavit.
    Certiorari to Missaukee; Chittenden, J.
    Submitted April 12, 1907.
    (Docket No. 78.)
    Decided June 3, 1907.

      Attachment proceedings by John F. Butcher and Elisha H. Hunter, copartners as John F. Butcher & Company, against the Cappon & Bertsch Leather Company. There was an order denying a motion to quash, and defendant brings certiorari.
    Affirmed.

      Covell & Cross (Diekema & 'Kollen, of counsel), for appellant.

      F. O. Gaffney {Henry Miltner, of counsel), for appellees.
   Blair, J.

Plaintiffs are copartners, doing business under the firm name of John F. Butcher & Co., at Moorestown, Missaukee county. Defendant is a corporation with its office and principal place of business at Holland, in Ottawa county. On January 17, 1906, plaintiffs caused a writ of attachment to be issued out of the circuit court of Missaukee county and to be levied upon a quantity of tan bark in said county belonging to defendant. The affidavit for the writ was made by Elisha H. Hunter, • one of the plaintiffs, and alleged, among other things, that “ the. defendant named in said writ, Cappon &■ Bertsch Leather Company, a corporation, of Holland, Mich., is indebted to deponent in the sum of seven hundred (700) dollars,” etc. On January 30th defendant filed a petition for dissolution of the attachment and restoration of the attached property. February 10th the court denied the prayer of the petition, finding that plaintiffs had a legal claim and good cause for attachment, and, plaintiffs consenting, in view of the tendency of the property to depreciate, that the attachment be dissolved on defendant entering its general appearance and giving a bond to pay any judgment rendered, the court so ordered. On February 20th defendant delivered to the sheriff the bond provided for in section 10567, 3 Comp. Laws, and obtained the property. On February 21st the sheriff made his return, showing inability to make personal service and filing the bond. April 6th plaintiffs filed affidavit of publication of notice of suit. April 7th declaration was filed. April 28th defendant’s default was entered. July 30th notice of trial for the August term of court and proof of service on “ Co veil & Cross, attorneys for the within named defendant,” was filed. August 8th the defendant moved to quash the proceedings for the reason, among others, that the affidavit was void. September 7th plaintiffs moved for an order “permitting said plaintiffs to file the affidavit for attachment hereto annexed for the purpose of curing any defect that exists or is claimed to exist in the original affidavit,” etc.- September 12th the court denied defendant’s motion, and on the next day granted plaintiffs’ motion. It is conceded that no general appearance was entered for the defendant. The record is before us for review upon writ of certiorari.

Three questions are presented for our determination, as follows:

(1) Was the affidavit so defective as not to confer jurisdiction upon the court ?
(2) Was the affidavit amendable ?
(3) Did defendant, by giving, the statutory bond, waive any defects in the affidavit ?

The statute (3 Comp. Laws, § 10556) requires that the affidavit shall contain a statement “that the defendant therein is indebted to the plaintiff,” etc. The affidavit in question does not contain such an allegation, but contains an allegation that defendant “is indebted to.de-, ponent,” one of the plaintiffs. The affidavit was therefore jurisdictionally defective, and was not subject to amendment. Freer v. White, 91 Mich. 74; Heller v. Savings Bank, 138 Mich. 192; Duryea v. Raymond, 146 Mich. 488.

A circuit court writ of attachment “is a summons with a clause authorizing a seizure of property.” Thompson v. Thomas, 11 Mich. 274. The dissolution of the attachment by giving the statutory bond, to pay any judgment which maybe recovered in the suit commenced by said writ of attachment, operated as an appearance and converted the suit from an action in rem into an action in personam. Paddock v. Matthews, 3 Mich. 18; Goebel v. Stevenson, 35 Mich. 172; Hill v. Harding, 93 Ill. 77; Bunneman v. Wagner, 16 Ore. 433; 3 Enc. Pl. & Pr. p. 84; 4 Cyc. p. 686; Moore v. Hamilton, 2 Gil. (Ill.) 429. The case of Reynolds v. Marquette Circuit Judge, 125 Mich. 445, is not opposed to this conclusion. The bond in that-case was given under the provisions of section 10761, 3 Comp. Laws. As said by the court at page 448 of 125 Mich.:

“ The condition of the bond is not that the owner of the logs will pay any judgment which may be obtained against the principal, but merely that he will pay such sums as may be found to be a lien upon the logs. The bond stands in the place of the property.”

In Streeter v. McMillan, 74 Mich. 123, cited in Reynolds v. Marquette Circuit Judge, supra, the court say:

“In the case of an ordinary attachment the suit is brought to recover a personal obligation, and nothing more, and the property is seized as defendant’s own property to satisfy his debt and not because of any claim against the property itself. * * * The property seized is not seized because it is in any way related to the debt, but because it is defendant’s property, and the judgment, if he does not appear, is paid out of it because it has been seized in pledge for such payment as his own. ”

But in the case then under consideration, for the enforcement of a lien upon logs, it was said:

“As a proceeding in rem as well as in personam, the property seized was an essential element in the controversy and the only ultimate basis of relief in the absence of a personal liability. ”

The- order overruling the motion to quash is affirmed, with costs to appellee.

McAlvay, C. J., and Carpenter, Grant, and Ostrander, JJ., concurred.


author: Ostrander, J.

text:
    McARTHUR v. SAULT NEWS PRINTING CO.
    1. Witnesses — Argumentative Examination — Prejudice.
    That counsel for plaintiff to some extent argued his case in the form of questions to and answers from a witness is not prejudicial where it is obvious that, if the witness was otherwise truthful, the argument was sound, and, if untruthful, unsound.
    2. Libel and Slander — Instructions—Verdict—Form.
    There is no reason for advising the jury in a libel case to specify in their verdict the amount awarded for injury to feelings where they are limited to a verdict for injury to feelings.
    3. Same — Instructions—Damages—Reputation.
    In an action for libel in publishing the statement that plaintiff’s boarding house, which had burned down, had for some time borne a bad reputation, an instruction that, if the house bore no worse reputation after the publication than before, plaintiff cannot recover, is properly refused, where business was not resumed in the house and no recovery for loss of reputation of the house or for injury to business, profits, or property is permitted.
    4. Same — Injuries to Feelings.
    A person may be entitled to substantial damages for injuries to her feelings resulting from a libelous publication, though she had a bad character and a bad reputation, neither of which are changed by the publication.
    Error to Chippewa; Steere, J.
    Submitted April 12, 1907.
    (Docket No. 79.)
    Decided June 3, 1907.
    Case by Jennie McArthur against the Sault News Printing Company for libel. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Davidson & Hudson, for appellant.

      Doig & Doig, for appellee.
   Ostrander, J.

Plaintiff was permitted by the charge of the court to recover only for injuries to her feelings. The jury returned a verdict in her favor for $216, for which sum judgment was entered. Defendant has brought the case here. Defendant published an article which, after stating that a certain boarding house kept by plaintiff had been consumed by fire, that the inmates who were mostly women escaped with nothing but their night clothing, continued as follows:

“ This is the second.time the old house has been visited by fire in the past few months. The place has borne for some time a rather bad reputation, although Chief of Police Swart says the officials have been unable to procure evidence enough against the inmates to warrant making arrests.”

These and other statements in the article are charged as meaning that the place was a house of prostitution and the plaintiff the keeper of such a house. The court, in terms not criticised by counsel, left it to the jury to determine the import of the article and its truth or falsity.

Certain errors are assigned and argued upon rulings admitting and excluding testimony. They require no discussion. Counsel for plaintiff to some extent argued his case in the form of questions to and answers from the witness Yigeant; but as it is obvious that, if the witness was otherwise truthful, the argument was sound, and, if untruthful, unsound, defendant was not prejudiced. In respect to the other rulings no error was committed.

It is contended that certain requests to charge should have been given. As the charge which was given is understood, these requests became immaterial. (1) There was no reason for advising the jury to specify in the verdict the amount awarded for injury to feelings because, and counsel concede this, the jury were limited to a verdict for injuries to feelings. (2) It was unnecessary and would have been misleading to instruct the jury, as requested, that, if the house had no worse a reputation after than it had before the publication of this article, plaintiff could not recover. Business was not resumed in the house., No recovery for loss of reputation of the house or to business or profits or property was permitted. (3, 4) These requests relate to the reputation and character of plaintiff before and after the publication, and the words “reputation” and “bad character” are used without qualification. It is evident the jury found that the import of the article was to charge that plaintiff was keeper of a house of ill fame. A woman might have a bad reputation and a bad character, neither of which would be changed by such a publication, and yet be entitled to substantial damages for injuries to her feelings resulting from the publication. The verdict does not indicate that the jury were insensible to such proper considerations as the evidence presented.

We find none of the errors well assigned, and the judgment is affirmed.

McAlvay, O. J., and Carpenter, Grant, and Blair, JJ., concurred.


author: Carpenter, J.

text:
    SMITH v. PICKANDS.
    1- Witnesses —Examination—Refreshing Memory —Copy of Original Entries.
    In an action for the price of trees sold it is not error to allow plaintiff, while testifying to the number of trees and the prices charged therefor, to refresh his memory by looking at a copy which he himself has made from a book of original entries.
    2. Sales — Action for Price — Quality of Goods Accepted — Burden of Proof.
    In an action for the price of trees sold, defendant having accepted them, the burden is upon her to show that they did not comply with the contract.

      Error to Cheboygan; Shepherd, J.
    Submitted May 18, 1907.
    (Docket No. 126.)
    Decided June 3, 1907.
    •Assumpsit by Egbert J. Smith against Marion R. Pickands for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      G. S. Beilley, for appellant.

      H. W. Harpster (Benjamin & Quay, of counsel), for appellee.
   Carpenter, J.

This suit was instituted in justice’s court. There plaintiff recovered. It was appealed to the circuit court, and tried by jury, and there, too, plaintiff recovered. The dispute in this court relates only to certain items in plaintiff’s account, viz., the number and price of certain trees sold and delivered to defendant, and an item of $10 paid for installing a telephone.

Defendant contends that the trial court erred in permitting plaintiff, in testifying to the number of trees and the prices charged therefor, to refresh his memory by looking at a copy which he himself had made from a book of original entries. It is to be inferred from his testimony that the inspection of this copy did actually refresh plaintiff’s memory. The ruling under consideration was not erroneous. 1 Wigmore on Evidence, § 760; 1 Greenleaf on Evidence (16th Ed.), § 439c; Cameron v. Blackman, 39 Mich. 108; Hudnutt v. Comstock, 50 Mich. 596.

Other complaints are made of rulings admitting testimony. Some of these complaints are based upon a misapprehension of the record, and others are answered by elementary principles of law. They do not demand discussion..

Plaintiff agreed, in the contract by which he sold the fruit trees', that they should be “ delivered in a healthy condition.” The testimony of plaintiff tended to prove that the trees were healthy when they were delivered to defendant. The testimony of defendant was that the trees “ were dry, and looked dead,” and that some of them did afterwards die. The trial court charged the jury:

“ It devolves upon her [defendant] to show that £he trees were not healthy; that is, unless the evidence is strong [stronger] on her side that they were unhealthy, you will find that they were healthy. As to the number of trees, the burden of proof is upon Mr. Smith; and unless his evidence is stronger than hers in regard to the number of trees, you will take her statement rather than his.”

Defendant contends that this charge was erroneous. We dispose of some of her objections when we say that it is quite obvious to us that the jury would understand that in using the word “strong” the trial court intended to say “stronger,” and they would understand the charge as if that word had been used, so that the effect of the charge is to impose upon the defendant the burden of proving that the trees were unhealthy. Had defendant never accepted these trees, this charge would have been erroneous. It would then have been an “essential part of plaintiff’s case to prove that the goods tendered complied with the contract.” McCall Co. v. Jacobson, 139 Mich. 455; Simons v. Paper Co., 77 Mich. 185; Stahelin v. Sowle, 87 Mich. 124. But in this case the defendant had accepted these trees, and most of them did comply with the contract. Under these circumstances we think the burden rested upon her to prove that the trees so accepted did not comply with the contract. In Stahelin v. Sowle, supra, it was said by Chief Justice Champlin, speaking for the court:

“The burden of showing sufficient cause to warrant him in rescinding the contract was upon the defendant.”

We therefore think that there was no error in the portion of the charge under consideration.

Defendant’s complaint respecting the item of $10 for installing a telephone is — as pointed out in plaintiff’s brief— based upon an improper construction of plaintiff’s testimony. Any further discussion of that complaint would serve no useful purpose.

The judgment is affirmed.

Grant, Blair, Montgomery, and Ostrander, JJ., concurred.


author: Per Curiam.

text:
    ROBERT SMITH PRINTING CO. v. BOARD OF STATE AUDITORS.
    Contracts — State Binding — Construction — Performance — Time.
    Under a contract to do the binding, etc., that may be “ordered ” by the several departments of the State government for the term of two years, the contractor is obliged to do, at the contract price, all the work ordered during the contract period, though the work is not performed, nor the material delivered, until after expiration of the contract period.
    Mandamus by the Robert Smith Printing Company to compel the board of State, auditors to allow certain bills.
    Submitted May 18, 1907.
    (Calendar No. 21,959.)
    Writ denied June 3, 1907.

      Edward Cahill, for relator.

      John E. Bird, Attorney General, and Thomas Ambrose Lawler, Assistant Attorney General, for respondent.
   Per Curiam.

For two years ending July 30, 1906, the relator was awarded the binding contract by the board of State auditors. By that contract relator agreed—

“To do and perform for the State of Michigan the binding, stitching, trimming, etc., and the work incident thereof, which under the law comes within the binding contract, that may be ordered according to law by the legislative, judicial and executive departments for the term of two years, ” etc.

Among the specifications, which are a part of the contract, is one “for binding of laws, journals, reports and documents, in paper, in cloth and in leather, to include folding, stitching,” etc.

Relator was the successful bidder for the State binding for the term of two years, commencing July 1, 1906. Before that time the board of State auditors had given the relator' three order's. The respondent treated the orders as given, and the work done under the former contract. The relator claims compensation under the new contract, which would entitle it to receive something over $500 more than would be allowed under the old'contract. Relator contends that the former contract was completed on the last day of its life, to wit, June 30,' 1906, and that whatever work was done afterwards, although the orders were given before, was done under the new contract. We think this contention cannot be maintained. Work had been commenced on some of the orders. Much of the material was delivered after June 30th; but it was not delivered upon any order that originated under the new contract, but under the old. If the relator had not obtained the new contract and the orders had been received before the termination of its old contract, it would clearly have been entitled to complete the order. .The language of the contract is clear that relator agreed to bind all the work ordered by the proper authority during the life of the contract, and that the respondent agreed to pay under the same contract. It is therefore unnecessary to discuss the question of the prevailing usage or custom which respondent claims constituted a part of the contract.

The writ is denied, without costs.


text:
    MURPHY CHAIR CO. v. ATTORNEY GENERAL.
    1. Constitutional Law — Amendments—Submission—Restriction by Legislature.
    The power o£ the two houses of the legislature, conferred by the Constitution (art. 20, § 1), to submit, upon the requisite vote, a constitutional amendment to the electors, and prescribe the manner of doing so, cannot be restricted by any previous legislation.
    2. Same — Amendments—Legality of Submission.
    The amendment striking section 3 of article 18 from the Constitution, submitted to the electors April 1, 1907, in accordance with the provisions of the joint resolution authorizing its submission, was legally submitted, though the procedure prescribed by Act No. 23, Pub. Acts 1905, was not followed.
    3. Same — Joint Resolution.
    Where the legislature regularly adopts a constitutional amendment by a two-thirds vote, and determines upon its submission to the people and prescribes the manner thereof, it is immaterial whether they call the resolution by which the action is taken a “joint resolution,” a “concurrent resolution,” or give it neither designation.
    4. Same — Sufficiency of Ballot.
    The ballot used in submitting to the people the “Amendment to the Constitution relative to the teaching of a mechanical trade to convicts in the State prisons of this State,” was suf-. ficient to challenge attention to the subject.
    Mandamus by the Murphy Chair Company and othérs to compel John E; Bird, attorney general, to file an information in equity.
    Submitted May 18, 1907.
    (Calendar No. 22,294½.)
    Writ denied June 3, 1907.

      Hal H. Smith (F. A. Baker, of counsel), for relators.
   Per Curiam.

The relators have requested the attorney general to file an information in equity to test the validity of a certain contract made by the warden and' board of control of the State house of correction and reformatory at Ionia and the Ypsilanti Reed Furniture Company, which they claim is in violation of section 3 of article 18 of the Constitution. The attorney general has refused the request, asserting that section 3 of article 18 was stricken from the Constitution by the constitutional amendment submitted to the electors April 1, 1907, by joint resolution passed March 6, 1907.

The relators claim that the constitutional amendment purporting to amend the Constitution by striking out section 3 of article 18 thereof was not legally submitted or adopted. It was submitted at the election held April 1, 1907, by a joint resolution, agreed to March 6, 1907, which prescribed the form of ballot to be as follows:

“Amendment to the Constitution relative to the teaching of a mechanical trade to convicts in the State prisons of this State.”

The joint resolution made no reference to Act No. 23 of the Public Acts of 1905, which is entitled—

“An act to secure greater publicity concerning proposed amendments to the Constitution.”

It was not presented to or approved by the governor. It is undisputed that the amendment was not submitted in the manner prescribed by the act of 1905. It is claimed that the joint resolution sets aside or suspends this act.

This is an application for a mandamus to compel the attorney general to sign and file such information in equity. It is argued that a joint resolution cannot set aside an act of the legislature, and that the action of the legislature in submitting a constitutional amendment cannot properly be termed a joint resolution; that the joint resolution adopted hy the legislature submitting the amendment in question does not in fact conflict with Act No. 23 of the'Public Acts of .1905; and that the ballot used did not intelligently present the question presented.

The answer to the first contention is that section 1 of article 20 of the Constitution confers the power upon the two houses of the legislature, upon the requisite vote, to submit a constitutional amendment to the electors, and prescribe the manner of doing so, and that, where the legislature by such action fixes the method of submission, it is within the power conferred by this section of the Constitution, and cannot be restricted by any previous legislation; that by the joint resolution submitting the amendment in question the notice to be given was prescribed, which was to be a notice by the secretary of State of the same character and in the same manner as is now required by law to be given in the case of an election of governor and lieutenant governor, and the sheriffs in turn were required to give notice under the provisions of the general election law.

As to the second and third .contentions, they are answered by the consideration that it is of no consequence what the legislature may have termed the resolution by which the action adopting the amendment to the Constitution is taken, whether it be called a “joint resolution” or “concurrent resolution,” or be given neither designation. If in fact the legislature regularly adopts by a two-thirds vote the amendment, and determines upon its submission to the people and prescribes the manner thereof, it is exercising a constitutional function, which cannot be restricted by any previous legislation. We think the resolution in question covered the same ground as was attempted to be covered by Act No. 23 of the Public Acts of 1905, and that it necessarily operated to substitute the notice prescribed in the resolution itself for that provided by the previous act.

As to the last contention, we think that the ballot used was sufficient to challenge attention to the subject, and that it is not necessary to set forth at length in the ballot the full terms of the amendment, if the notice gives sufficient information to the electors.

The application for mandamus is denied.


author: Ostbandeb, J.

text:
    ATTORNEY GENERAL, ex rel. MICHIGAN LUBRICATOR CO., v. COMMISSIONER OF INSURANCE.

    1. Insurance — Standard Policy — Exception Clause —Construction.
    The purpose of Act No. 277, Pub. Acts 1905, is to provide a standard fire-insurance policy, and the sixth exception therein, providing that provisions adding to or modifying the provisions of the standard form may be embodied in'riders, cannot be construed literally, so as to permit the standard form to be used as a mere frame upon which to affix riders embodying the contract of the parties.
    2. Same — Co-Insurance Clause — Statute—Construction.
    Section 5183, 2 Comp. Laws, prohibiting insurance policies in which the liability of the insurer is limited or restricted because of the failure of the insured to carry other insurance, also prohibits policies in which the same result is reached by providing that the insured shall be regarded as a co-insurer for a certain percentage of the property.
    3. Constitutional Law —Right to Contract — Restrictions— Insurance Policies.
    A statute prohibiting co-insurance clauses in fire-insurance policies is not invalid on the ground that it imposes an unconstitutional limitation upon the right to make contracts, since the power, which is not denied, to make a standard form of policy for use in the State involves the power to make all the terms of the policy.
    Mandamus by John E. Bird, attorney general, on the relation of the Michigan Lubricator Company, to compel James V. Barry, commissioner of insurance, to revoke the license of an insurance company.
    Submitted April 8, 1907.
    (Calendar No. 22,200.)
    Relator held entitled to writ June 3, 1907.
    By Act No. 149 the legislature of 1881 provided for a standard form pf fire-insurance policy for use by all companies doing business in this State, that no other form should be in use, and for a penalty for violation of the act. A form of policy was prepared and went into general use. One of the provisions of the policy so adopted was the following :
    ‘ ‘ This company shall not be liable under this policy for a greater proportion of any loss on the described property, or for loss by and expense of removal from premises endangered by fire, than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property, and the extent of the application of the insurance under this policy or of the contribution to be made by this company in case of loss, may be provided for by agreement or condition written hereon or attached or appended hereto.” ,
    The act of 1881 was invalid, and was so declared to be in King v. Insurance Co., 140 Mich. 258, the opinion being filed May 22, 1905. Immediately the legislature (Act No. 277, Pub. Acts 1905, approved June 16, 1905, and given immediate effect) adopted the same form of policy, repealed the act of 1881, and provided for a penalty for using any other form of policy, with certain exceptions, the sixth of which is:

      “Sixth. A company may write upon the margin or across the face of a policy, or write or print in type not smaller than long primer, upon separate slips or riders to be attached thereto, provisions adding to or modifying those contained in the standard form; and all such slips, riders and provisions must be signed by the officers or agent of the company so using them.”
    In the period from 1881 to 1895 insurance companies had, in certain cases in providing the extent of the contribution to be made in case of loss, required that the insured should either carry insurance equal in amount to 'a certain proportion of the cash value of the property insured, or themselves be treated as co-insurers to the extent of the deficit (see Chesbrough v. Insurance Co., 61 Mich. 833), or, that the insurer should be liable for such proportion of the loss as the amount insured by it bore to some percentage or part of the total cash value of the property insured. In 1895 (Act No. 153) a statute was passed having the following title:
    “An act making it unlawful for any fire-insurance company doing business in the State of Michigan, to limit oi restrict its liability by providing in any policy of insurance issued by it that such liability shall be fixed, determined or proportioned by the whole amount of insurance upon the property insured, and to provide a penalty for the violation thereof.”
    Section 1 of this act (2 Comp. Laws, § 5183) reads as follows:
    “That it shall be unlawful hereafter for any fire-insurance company doing business in the State of Michigan to provide by any insurance policy issued by it, or by any clause therein, or by any separate agreement, contract or otherwise, that the liability of said insurance company to the insured shall be limited or restricted by reason of the failure of the said insured to insure the property covered by said policy for any certain amount or proportion of the actual cash value of such property.”
    This statute has never been expressly repealed. After its passage a common form of rider used upon policies in insuring certain classes of risks was one known as the “percentage co-insurance clause,” which reads:
    “In consideration of a reduced rate of premium, it is hereby agreed that in case of loss, this company will pay only such proportion of the loss as the sum hereby insured bears to eighty per cent, of the value of the property insured, but in no case shall this company be liable for a greater proportion of any loss than the amount hereby insured bears to the wholé insurance whether valid or not.”
    For a better understanding of the methods and effect of co-insurance, I quote, as counsel have done, from the Cyclopedia of Insurance in the United States for the years 1905-1906, pp. 112-114:
    “The principle is that the entire property at risk should bear the burden of the loss of any part of it. That can only be done when the property is either fully insured or is totally destroyed. The co-insurance clause.is only operative in partial losses, which are a large percentage of the fire losses. In these cases the owner contracts that he will either carry insurance to the limit required, or himself become a co-insurer for the deficiency. Without this clause the underwriter cannot intelligently rate any risk. Property worth $10,000 and insured for $10,000 is a very different risk from the same property insured for $1,000. In the one case the destruction of one-tenth of the property means a 10 per cent, loss, and in the other case it means a total loss. The two risks cannot properly be written at the same rate, because they do not involve the same hazard. The effect of the universal application of the principle would be that the amount of insurance would be somewhat increased, the premium rate would be reduced, while rates would be equalized as between the owners who have heretofore carried partial insurance and those who have carried full insurance. For some reason, which it would be difficult to explain, except upon the hypothesis that the property owner does not know the exact value of his property, but that he ought to be able to guess within a named percentage of it, the clause which has come into use in the United States is known as the ‘ percentage co-insurance clause,’ and in the standard forms of policies reads:
    “ ‘If at the time of fire the whole amount of insurance on the property covered by this policy shall be less than * * * per cent, of the actual cash value thereof, this company shall in case of loss or damage be liable for only such portion of such loss or damage' as the amount insured by this policy shall bear to the said * * * per cent, of the actual cash value of such property.’ * * *
    “ To make another illustration of the operation of the co-insurance clause in the United States policy: Suppose the percentage inserted in the clause is 80. If the whole amount of insurance at time of fire be less than 80 per cent, of value of the insured property, the owner must bear his share of any loss for the difference between the total amount of insurance carried and 80 per cent, of the value of the property insured, just as though he were an insurance company and had issued his policy for this amount. Thus, with a stock of goods worth $10,000 and an insurance of only $5,000, $8,000 would be 80 per cent, of value, which would make the owner, in case of a fire, be interested to the extent of $8,000 just as though he were an insurance company and had issued a policy insuring his own property for $3,000. This would make the necessary $8,000 insurance, or 80 per cent, of value, he having become a co-insurer with the regular insurance company, having its policy on the risk for $5,000. A fire doing a damage say of |4,000 would be paid for in the following way:
    “Regular insurance company would pay five-
    eighths of $4,000, or.......................... $2,500
    Owner would pay to himself (his share)........ 1,500
    Making up the whole loss....................... 4,000
    “Suppose, now, that his regular insurance had been $8,000, the co-insurance clause would cost .him nothing, as the regular insurance company would pay him ‘ as the amount of insurance shall bear eighty per cent, of value,’ which means, in this case, the regular company would pay him eight-eighths of $4,000, or his full loss.
    “ On the other hand, suppose the property to have been entirely destroyed, or a total loss, he would get the full amount of his regular insurance, because five-eighths of $10,000 would amount to more than the face of the policy.
    “Again, suppose a man with $10,000 value is insured in the old way for but $5,000, at a rate of 1 per cent., making his yearly premiun $50, and a fire causes loss of $5,000. He collects this from the companies, while his neighbor, with the same value, hazard, and rate, gets insured for $8,000 at a cost of $80 per annum, and he has a damage of $5,000. The one gets the same as. the other gets, only No. 1 has paid less than No. 2 paid for his insurance, while, if the 80 per cent, co-insurance clause were a part of both contracts, No. 1 would have received from the companies but $3,125, while No. 2, who had enough to satisfy the demands of the 80 per cent, coinsurance clause, would receive his full loss, or $5,000.
    “Small fires being by far the more common, and, it may be added, by far the more expense to the companies, rates can be made with more fairness on the basis of coinsurance than without it.”
    In the case of the Michigan Lubricator Company the value of the property at risk was $96,118.56. Eighty per cent, of this is $76,894.85. The loss was $30,842.28, and the insurance carried $40,000. The aggregate sum which under the contract these companies are required to pay is $18,050.92, and is precisely the same sum as to each company interested as if the owners had carried an insurance aggregating $76,894.85. As early as May 6, 1901, the commissioner of insurance of this State considered and gave his opinion concerning the effect of the statute of 1895 upon contracts like those expressed in the rider above set out. This opinion was made known to the public and to insurance companies and has since been acted upon by them. So far as is necessary, the opinion is here given:
    “The Michigan anti-co-insurance law, as you will see if you will read it carefully, is different from the law as enacted in some of the other States. I herewith quote section 1 of our law:
    “ ‘ That it shall be unlawful hereafter for any fire insurance company doing business in the State of Michigan to provide by any insurance policy issued by it, or by any clause therein, or by any separate agreement, contract or otherwise, that the liability of said insurance company to the insured shall be limited or restricted by reason of the failure of the said insured to insure the property covered by said policy for any certain amount or proportion of the actual cash value of such property,’
    “You will see that this simply prohibits any co-insurance clause whereby the liability of the company is limited or restricted because of the failure to carry other insurance, but the section, as I read it, nowhere prohibits a clause which makes the insured a co-insurer for any amount or percentage. In other words my understanding is that the co-insurance clause ■ in underwriting is reached by two methods, one whereby the insured is compelled to secure other insurance to a certain amount, and, if he fails to do so, the company’s liability is limited. The other method provides for. the insured himself being the insurer for a certain portion or percentage of the value of the property.
    “ Most of the anti-co-insurance laws that I have examined prohibit not only the former, but also the latter form of co-insurance clause. As I have stated above, the Michigan law does not prohibit the latter, and therefore the percentage clause compelling the insured to carry a certain portion of the value of the property is not a violation of the law of this State, in my opinion.”

      The attorney general, acting upon the relation of the Michigan Lubricator Company, asks this court in this case to issue the writ of mandamus to compel the commissioner of insurance of this State to revoke the license of the Concordia Fire-Insurance Company, a foreign insurance company doing business in the State, for violation of the law of 1895 in issuing since the act of 1905 went into effect a policy with a rider in the terms stated. From the return made by the commissioner of insurance to an order to show cause it appears that on or about the 21st of February, 1907, the relator made an application to have the license of said Concordia Fire-Insurance Company revoked, stating that it desired to make a test case for the purpose of obtaining a decision of this court concerning the validity of the standard policy contract, as modified by the rider; that he was not satisfied there had been a violation of the law and therefore refused to revoke the authority of said company to transact business in the State; that while respondent is willing that a decision should be made in this proceeding, if conformable to the practice of the court, he submits to the judgment of the court the claim of the Concordia Fire-Insurance Company that this is not a suitable or proper proceeding for the purpose. It is further set out in the return, upon information and belief, that the policy in question was in the form prescribed by Act No. 277 of the Public Acts of 1905; that, if the act of 1895 is construed to forbid the percentage agreement in question, it is repealed by Act No. 277 of the Public Acts of 1905; that if the act of 1895 is construed to forbid such percentage contracts of insurance as the one in question, it is unconstitutional and yoid as forbidding and interfering with the freedom of contract, as depriving citizens of their rights to property without due process of law, is in conflict with article 6, § 32, of the Constitution of Michigan, and with section 10, art. 1, and section 2, art. 4, and the Fourteenth Amendment to the Constitution of the United States. The good faith of the company in the use of the rider is asserted.

      John E. Bird, Attorney General (Charles D. Joslyn and John B. Corliss, of counsel), in pro. per.

      Alfred Lucking (Charles B. Obermeyer, of counsel), for respondent.

       Rehearing denied July 2, 1907.

   Ostbandeb, J.

(after stating the facts). There is nothing in the standard form of policy prohibiting the contract in question. In the absence of other provisions, the sixth exception found in the act of 1905 is broad enough in terms to permit it. Quinn v. Fire Ass’n, 180 Mass. 560. But there is another provision. The words employed in the said sixth exception, if literally construed and applied, would permit the standard form of policy to be used as a mere frame upon which to affix riders embodying the contract of the parties. We assume that the essential purpose of the legislation was to provide a standard policy, and that the exceptions mentioned are to be given a meaning, if that is possible, in harmony with this purpose. It is not to this sixth exception, but to the clause of the policy which permits the extent of the contribution to be made by the company in case of loss to be provided for by agreement, that we must look, other legislation aside, for permission to make the contract in question. This clause covers the subject, and is not enlarged by the exception referred to. That this clause was, under the law of 1881, modified by the act of 1895, is admitted. If the act of 1895 is alive, it modifies the same clause in the policy of 1905.

The act of 1895 applies to all policies issued by all companies doing business in the State. The commissioner of insurance and apparently the insurance companies have regarded it as in force. No good reason is shown for regarding it repealed. See Vorous v. Insurance Co., 102 Wis. 76. The question is: Shall it have the application which is contended for by relator ? Assuming the law to be valid, and no attack is made upon it, the case presented is not literally within its terms. The contract in question does not provide in terms that the liability of the company shall be limited or restricted by reason of the failure of the insured to insure the property for any certain amount or proportion of the cash value thereof. The liability of the company is fixed whether the insured does or does not procure any other insurance. The contract, so far as-the point in question is concerned, is to pay such proportion of any loss as the amount of the policy bears to 80 per cent, of the cash value of the property insured. But in effect the contract made by a rider in the statute form and the one made by a rider in the form used in this case is precisely the same. By this is meant that if the contract in the case presented was one requiring the insured to carry insurance equal to 80 per cent, of the value of the property, in default of which he should be regarded as a co-insurer to the extent'of the deficit, the result to the insured in case of loss would be the same. No one disputes this conclusion. The contract in one case as well as in the other provides, in fact, that the liability of the company to the insured — that is, the sum for which the policy is issued— shall be restricted if the insured does not insure the property for a certain proportion of' the actual cash value thereof. If - no distinction can be made between the method employed here and the literal statute method, if co-insurance was, as seems to be admitted, aimed at by the legislature, it would be a narrow construction which would regard the statute as applying to one case and not to the other, as a law to be evaded by mere phraseology. Although the statute imposes penalties for disobedience, it may be also regarded as a remedial statute aimed at a real or a supposed mischief. Counsel have pointed out no substantial distinction between co-insurance effected in one way ánd in the other, and have given no convincing reason for a construction which shall regard only the letter of the law of 1895. In many States there was in the years from 1893 to 1899 similar legislation, some of it more specific than our own, directed to preventing, or regulating, co-insurance. In many of these States the law has since been modified. For example, it is now the law of Wisconsin—

“No such company shall require the use of any such so-called co-insurance clause or rider to be attached or made a part of any policy except at the option of the insured, and every such company shall give to every applicant for insurance the rate of premium demanded with and without such clause or rider.” 1 Wis. Stat. § 1943a.

The necessity for a blanket policy of insurance which shall cover all of the property of large institutions, some of which have many buildings, with personal property moving constantly from one to the other and receiving an added value in each, is evident. No fluctuating rate of premium which is fair can be arranged for such a risk. Unless a contract may be made proportioning liability upon any policy by the actual value of all the property at risk, the premium must be fixed by the extreme hazard. The construction which the commissioner of insurance has given to the law of 1895 has permitted the use of such policies in certain cases, and has met the demand for the right to make such contracts of insurance. Such contracts are neither vicious in purpose nor fraudulent in effect so long as they are understood, and so long as the insured may choose them or the ordinary policies. But by the terms of the Michigan standard policy, if the extent of the contribution by the insurer in case of loss may be arranged by agreement, it may also be imposed as a condition. If it is lawful to impose such a condition, it may be imposed in all cases. The construction of the law contended for, if agreed to, leaves it entirely in the power of insurance companies to tender no other form of contract. I think the legislature intended to prevent such a condition of things, and, as it has not provided an alternative, the court may recognize none. It must be held that the contract in question was in violation of the act of 1895.

I dismiss the proposition that this construction of the law imposes an unconstitutional limitation upon the right to make contracts by saying that the power, which is not denied, to make a standard form of policy for use in the State involves the power, to make all of the terms of the policy. Examples of legislation similar in character are the valued policy laws of various States.

It is stated in the brief of the attorney general that inasmuch as the construction of the law made by the commissioner of insurance has been in good faith followed by insurance companies, including the Concordia Company, it is not insisted that there shall be an immediate issue of a peremptory writ of mandamus. As all matters connected with the enforcement of the law are by the law itself placed in the control of the commissioner and the attorney general, it is sufficient for the court to state a conclusion in the premises.

McAlvay, O. J., and Carpenter, Grant, and Blair, JJ., concurred.


author: Hooker, J.

text:
    MICHAELS v. McROY.
    1. Municipal Corporations — Public Improvements — Contractors’ Bonds — Failure to Take —Liability of Officers.
    No recovery can be had by a materialman against the trustees of a village for failure to take of a public contractor the bond provided by sections 10743, 10744, 3 Comp. Laws, without a showing that the plaintiff’s claim cannot .be collected of the contractor.
    2. Appeal and Error — Questions Considered — Theory Below,
    Where plaintiff’s counsel conceded that the declaration did not contain a sufficient averment of a fact which he contended was not essential, but the court held the averment to be necessary to his cause of action, and directed a verdict, this court cannot reverse the judgment on the ground that the fact in question is sufficiently averred.
    Error to Lapeer; Lockwood, J., presiding.
    Submitted April 8, 1907.
    (Docket No. 6.)
    Decided June 5, 1907.
    Case by Louis Michaels and Edward Michaels, co-partners as Michaels Brothers, against Robert McRoy, Charles Marshall, Charles Palmer, Frank Rathsburg, George Ryman, and Joseph Taylor, board of trustees of the village of Imlay City, for failure to require the statutory bond of a contractor for the construction of a public hall. There was judgment for defendants on a verdict directed by the court, and plaintiffs bring error.
    Affirmed.

      John Loughnane, for appellants.

      Geer, Williams & Halpin and W. E. Brown, for appellees.
   Hooker, J.

The defendants were trustees of the village of Imlay City, in 1902, at a time when the village council let to Hulbert & Co. a job for building a village hall. The council neglected to take the bond required by 3 Comp. Laws, §§ 10743, 10744, and 10745. The plaintiffs were copartners who furnished materials to Hulbert & Co. for the building, and of the price of the same there remained unpaid the sum of $388.92, for the recovery of which they began suit, by declaration, against the defendants, in February, 1905. Upon the trial, counsel for the defendants, who had pleaded the general issue, objected to the introduction of any testimony, upon the ground that the declaration failed to show that the plaintiffs had exhausted their remedy against Hulbert & Co., and that it did not allege that the contractor was irresponsible, or that there was any obstacle to collection from him. The circuit judge held that, if the plaintiffs desired to go on with the case on the theory that it is immaterial whether Hulbert & Co. are financially responsible or not, they might do so, or the court would allow the plaintiffs to amend the declaration by adding thereto an allegation as to the amount of money remaining unpaid upon the purchase price of the materials sold and furnished to Hulbert & Co.; and also the further allegation as to the financial irresponsibility of Hulbert & Co., and as to their ability to collect from this firm the balance unpaid on the purchase price of these materials. The court further held that, if the plaintiffs’ counsel elected to make such an amendment, counsel for the defendants might have the case adjourned over the term, in which event the defendants will recover from the plaintiffs their costs. The plaintiffs might elect to amend or proceed with the declaration as it now stands. Defendants’ attorney stated that they were not prepared to traverse the financial responsibility of Hulbert & Co., and that it would necessitate a continuance if the amendment were made. Plaintiffs’ attorney elected to go on with the matter as the declaration now stands. A verdict for the defendants was directed at the close of plaintiffs’ testimony, for the following reasons:

“1. That before recovery could be had against the defendants it must be alleged in the declaration and shown by the evidence that the plaintiff had suffered some damages by reason of this bond not being taken.
“2. There is no allegation in the declaration in this case that any demand was ever made on Hulbert & Co., and that they had refused to pay.
“3. There is no allegation in this declaration that Hulbert & Co. are not pecuniarily responsible.
“4. There is no evidence here that this bill might or would not have been paid had it been presented, and no evidence that it was ever presented to any person and payment asked of Hulbert & Co.”

The plaintiffs have taken a writ of error.

The statute provides that the officers, letting a public contract, shall require a bond conditioned for the payment of the contractor, or subcontractor, as the same may become due and payable, of all indebtedness which may, etc. Such a bond is practically a guaranty of payment, and the surety’s liability would rest on his contract of suretyship. The liability of these defendants does not rest on a contract, but on the neglect of a duty due to the materialman which attached when he furnished materials. As said by Mr. Justice Grant, in Staffon v. Lyon, 110 Mich. 261:

“The action is based upon tort, and not upon contract.”

A right of action does not accrue immediately upon a failure to require bond. It is only when labor is done or materials are furnished. Until then there has been no wrong to any particular person, and, until an obligation has become due, there is no right of action. Then the right accrues, if there has been an injury, and in this respect the case is not different from other cases. If the neglect be a wrong, but without injury, there can be no recovery. 4 Current Law, p. 1682, and cases cited. If the contractors in the present case were shown to have been at all times able and willing to pay the plaintiffs’ claim, the failure to require this bond would have been none the less a violation of duty, but it would have been without injury.

It is incumbent upon the plaintiff to show both wrong and injury, and it is also necessary that both should be alleged. The declaration in this case alleges the failure to require the bond. It also alleges that the plaintiffs furnished material to the amount of $500 to the contractor for use in the building contracted by the defendants. It does not state in express terms that said claim is due, that any demand for or refusal of payment has been made from or by the contractor, that he is irresponsible, or that the plaintiffs have been injured by the failure to require the bond. The nearest approach to this is the following allegation:

“And for that whereas, also, the said defendants in disregard of their duty aforesaid, negligently and carelessly and in disregard of the rights of these plaintiffs, neglected to require of the- said contractors, George D. Hulbert & Co., the bond aforesaid,' and permitted the said George D. Hulbert & Co. to take and enter into the said contract for the construction of the said village hall, and to enter upon the performance thereof, without giving security, by bond or otherwise, for the payment of the said contract for the labor and materials furnished therein, as required by the aforesaid statute, and in consequence whereof there is no fund to which the said plaintiffs can resort for the collection of their said claim, whereby and by reason of said conduct and neglect of duty of the said defendants, and by the provisions of the said statute, an action hath accrued to the said plaintiffs to recover of the said defendants the sum of $888.92, with interest thereon from, to wit, April 28, 1903, to the plaintiffs’ damage $500, therefore they bring suit.”

We are not agreed that this declaration failed to state a cause of action; some being of the opinion that it substantially alleged that the sum due could not be collected from Hulbert & Co., but we are agreed that the circuit judge did not have his attention called to such a question. The record indicates that plaintiffs’ counsel practically conceded that the declaration did not contain a sufficient averment of Hulbert & Co.’s irresponsibility, but insisted that it was not a necessary averment under his construction of the law, viz., that a failure to take the statutory bond of itself created a liability. For this reason we are precluded from reversing the judgment, whatever we may think of the sufficiency of the declaration in the particular discussed.

The judgment is affirmed.

Carpenter, Blair, Montgomery, and Moore, JJ., concurred.


text:
    PATTERSON v. HYNES.
    Appeal and Error — Chancery Appeal — Claim op Appeal — Time op Piling.
    Where a claim of appeal was filed nearly a year before the settlement of the case on appeal, it is not fatal that another claim was not filed within 40 days after the settlement of the case (Act No. 243, Pub. Acts 1899), no harm having resulted.
    Bill by William L. Patterson against Thomas C. Hynes for an accounting. From a decree dismissing the bill, complainant appeals: On motion to dismiss the appeal.
    Submitted June 4,1907.
    (Calendar No. 22,303.)
    Motion denied June 14, 1907.

      James H. Davitt, for the motion.

      Travers & Zander, contra.
   Per Curiam.

This cause was heard in the circuit court in chancery on pleadings and proofs taken in open court; decree being rendered in favor of defendant on February 24, 1906. A claim of appeal was filed with the register,in chancery on March 26, 1906, and on March 29, 1906, a bond on appeal was filed, and the surety was approved by the circuit judge under Act No. 248 of the Public Acts of 1899. Time to settle the case was extended until March 15, 1907, when the case was settled and filed, and the files were forwarded to this court by the register. Counsel for defendant now move to dismiss the appeal, on the ground that no claim of appeal, as required by Act No. 243 of the Public Acts of 1899, was made and filed with the register within 40 days from the settlement of the case on appeal.

A claim of appeal having been made before settlement of a case, it was not fatal that another claim was not filed later, when no harm has resulted. Simons v. Simons, 47 Mich. 645; Love v. Francis, 63 Mich. 181; Sherman v. Sherman, 139 Mich. 180.

The motion is denied.