author: Moore, C. J.

text:
    OLSEN v. WILLIAMS.
    Quieting Title — Jurisdiction of Equity.
    Taking as true on demurrer the averments of complainant’s bill that he was the owner of lands therein described, pursuant to an application to purchase the premises as tax homestead lands, filed in 1903, in compliance with the provisions of Act No. 206, Pub. Acts 1893; that in 1908 he obtained a deed of the property from the State, that in 1904 defendant instituted ejectment against complainant, but, the cause remaining undetermined, in 1908 a stipulation purporting to be signed by defendant’s attorney was filed, discontinuing such action, that defendant claimed that such action was unauthorized and the ejectment case was still pending, the bill further averring that complainant had been in continuous possession of the premises since 1897, that defendant had annoyed him and clouded his title by numerous suits, actions, and proceedings, and that complainant because of defects in his legal title could not make a full defense in equity, the bill stated grounds for quieting title in equity and defendant’s demurrer was correctly overruled.
    Appeal from Alpena; Emerick, J.
    Submitted April 10, 1912.
    (Docket No. 102.)
    Decided October 7, 1912.
    Bill by Gilbert Olsen against Charles B. Williams to quiet title to certain lands. From an order overruling a demurrer to complainant’s bill, defendant appeals.
    Affirmed.

      I. 8. Canfield, for complainant.

      D. W. Glosser, for defendant.
   Moore, C. J.

Omitting the formal parts thereof, the bill of complaint is as follows:

“Your orator, Gilbert Olsen, respectfully represents:

“ That he is the owner of the following described lands. * * * That he acquired title to said land from the State of Michigan in the manner following: That February 14, 1903, he made application under the provision of section 131 of Act 206 of the Public Acts of 1893, and acts amendatory thereto, to the commissioner .of the State land office to homestead the above-described lands, and, as a condition required by law, paid to said commissioner the sum of 18.10. February 17, 1903, the commissioner of the State land office issued to your orator, upon his said application, State tax homestead certificate No. 4076; the same being in the usual form and covered the above-described lands. That on April 29, 1903, your orator filed in the office of the commissioner of the State land office his proof of settlement as required by law, under said certificate No. 4076, and thereafter continued to comply with the provisions of law relative to homesteaders for a full period of five years, and made improvements on said lands and resided thereon. That on April 7, 1908, and after the expiration of five year's from the date of said certificate, your orator made due proofs of his having complied with the terms of said homestead certificate, and caused said proof to be filed April 8, 1908, in the office of the commissioner of the State land office at Lansing, Michigan. That thereafter, and on December 31, 1908, the commissioner of the State land office made, executed, and delivered to your orator a deed conveying the above-described lands to your orator; the said deed being in the usual form required by law. That thereafter your orator caused said deed to be recorded in the office of the register of deeds for the county of Alpena, in Liber 7 of Deeds, at page 32.
“ That previous to the entry of your orator upon said land as a homesteader under said certificate, as aforesaid, the said lands had been delinquent for many years for the taxes assessed thereon, and return duly made of such delinquent taxes to the auditor general of the State of Michigan, and proceedings taken and had by said auditor general, under the provisions of the statutes of the State of Michigan, by filing his several petitions in the circuit court for the county of Alpena, pursuant to which proceedings decrees were regularly entered by said court against said lands, and the same were sold at the several tax sales thereafter held pursuant to said decrees; and said lands were sold by the treasurer of the county of Alpena and bid off to the State of Michigan. That after said lands had been bid off by the State of Michigan the same were held by the State as State tax lands for the time required by law, and thereafter, upon request being made in compliance with the statute, said lands were examined, and, upon the report of the examiner, were duly determined by the auditor general and the commissioner of the State land office, in form required by law, to be worthless and abandoned lands. That thereafter, pursuant to the requirements of law, the auditor general conveyed the said lands to the State of Michigan, whereby the same became and afterwards continued to be state tax homestead lands, and were, at the time of your orator’s application hereinbefore referred to, so held by the State and subject to homestead entry.
“ That previous to said homestead entry so made, as aforesaid, by your orator upon said lands, your orator had, in February, 1897, made application for and received a certificate and entered upon said lands; but the same was thereafter canceled, because your orator had not fully complied with the law in filing his proof of settlement thereon.
“ That after your orator had received his second State tax homestead certificate No. 4076 from the commissioner of the State land office for the land hereinbefore described, and on the 14th day of March, 1904, Charles B. Williams, who is made party defendant to this your orator’s bill of complaint, filed his'bill of complaint in this court against your orator and his wife, Mary Olsen, who has since deceased, the auditor general of the State of Michigan, and the commissioner of the State land office of the State of Michigan, praying that the court cancel and annul your orator’s said State tax homestead certificate and rights in the above-described lands, in which suit all of the defendants appeared and answered, and which said suit was pending in said court until on, to wit, the 31st day _ of March, 1909, when the said bill was, upon the application made in open court by the solicitor for said Williams, dismissed, although no order has ever been entered in said cause to that effect.
“That on the same day, March 14, 1904, when said defendant herein commenced said chancery suit against your orator and others, as aforesaid, he commenced, in the circuit court for the county of Alpena, a suit in ejectment against your orator and his wife, the auditor general of the State of Michigan, and the commissioner of the State land office of the State of Michigan, which said suit was, by plea of the defendant filed March 30, 1904, put at issue; but the same has never been tried, and is now claimed to be pending and undetermined in said court. The said defendant herein, who is the plaintiff in said ejectment suit, brought said suit to try the title of the above-described premises. That April 3, 1908, a stipulation in writing, signed by Henry K. Gustin, as attorney for plaintiff, Williams, and John E. Bird, attorney general, and Charles W. McGill, assistant attorney general, for defendants, providing for the entry of an order dismissing said ejectment case, was filed in said cause; but, by reason of the claim of said Williams that said Gustin had no power to sign the same for him, said suit has not been dismissed, and is now claimed by said defendant to be still pending in said court.
“And your orator further charges and avérs that the said defendant herein, Charles B. Williams, previous to the commencement of the ejectment suit herein mentioned, did not deposit with the auditor general of the State of Michigan, as he was required by law, the money necessary to pay and discharge all of the delinquent and unpaid taxes standing of record undischarged against the t lands hereinbefore mentioned, and for that reason ought * not to be permitted to maintain his said ejectment suit against your orator.
“ That March l1?, 1904, the said Charles B. Williams filed his several petitions in the matter of the petition of the auditor general of the State of Michigan for the sale of certain lands for the faxes assessed thereon for the years 1892 and 1893 in this court, and praying that the decrees before entered therein be reopened, and that the sale of the above-described lands be set aside, and that the deed made by the auditor general of the State of Michigan, hereinbefore referred to, and the title of your orator derived thereunder, be set aside, so that the said Williams might file objections therein and have a hearing thereon to show that said taxes were void, and not a lien upon said lands above described. That answers were filed for the several respondents therein and a hearing had thereon in said court in March, 1909, upon which said petitions the said circuit court for the county of Alpena made a decree dismissing the same, to which files and records in said cause for greater certainty your orator begs leave to refer. That thereafter said Williams attempted to appeal from said decree of the circut court for the county of Alpena, in chancery, to the Supreme Court of the State of Michigan; but said appeal was, on June 15, 1910, dismissed by said Supreme Court, and proceedings therein are terminated.
“ That after your orator had filed his final proofs, as aforesaid, with the commissioner of the State land office, and before the execution of said deed to your orator by the commissioner of the State land office, the said Williams caused to be filed certain affidavits in an effort to prevent your orator’s final proofs from being received as sufficient authority for said commissioner of the State land office to execute said deed, as aforesaid. That the said commissioner of the State land office, after receiving such affidavits filed by said Williams and your orator’s final proofs, as aforesaid, decided that your orator was entitled to such deed, executed the same, and delivered it to your orator. That your orator has been in continuous possession of said premises from the date of his said certificate up to the present time, and is still in possession of the same.
“That the said defendant, Williams, has by his said several suits and proceedings, harassed and annoyed your orator in respect to his title and right of possession for a period of more than six years; and, although he knows that he has no equitable right or title to said premises, he insists upon proceeding in his said action of ejectment so commenced and now pending, as aforesaid, in this court, thereby rendering your orator’s title to said premises unmarketable. That your orator cannot sell or dispose of the same while said suit in ejectment is pending and undetermined.
“That your orator is informed and believes that there are certain defects in his legal title to the above-described premises to which he cannot make a full defense in the said action of ejectment, but that in justice and in equity the said defendant ought not to be heard to make any claim of any right, title, or interest in and to the aforesaid premises. And that your orator charges and avers that the said action of ejectment so pending, as aforesaid, in said court ought to be restrained, and the title of your orator forever quieted against the said defendant and all other persons claiming by, through, or under him.
“That the said defendant, from February, 1897, to March 14, 1904, knew that your orator was holding and occupying the said premises under a homestead entry made as aforesaid, yet he took no steps whatever to assert his legal or equitable rights therein, and took no steps whatever to set aside the claimed tax sales made to the State of Michigan, aforesaid, and took no steps to set aside the transfer made by the auditor general of the State of Michigan, as aforesaid, and has otherwise been guilty of such laches in the premises as ought to in equity , preclude him from prosecuting his said suit in ejectment against your orator, as aforesaid.”

The prayer contained the following: ¡>

“(a) That the said defendant’s claimed title to the above-described premises be decreed to be null and void and of no effect.
“ (6) That the title to the above-described premises be decreed to be in your orator and forever quieted.”

There was also a prayer for general relief, and for an injunction against prosecuting the suit in ejectment, “ wherein Charles B. Williams is plaintiff and your orator and others are defendants.”

The defendant demurred to the bill of complaint for the following, among other, reasons:

“Because complainant has a complete and adequate remedy at law.
“Because complainant has not stated in his bill such facts and circumstances as entitle him to relief in a court of equity, nor such facts and circumstances as entitle him to deprive defendant of the statutory right to two or more trials of the title to said lands on the law side of this court.”

The demurrer was overruled, and the defendant was given 15 days in which to file an answer. The case is brought here for review.

Stated briefly, it is the claim of defendant that, as complainant claims to be the owner in fee simple of the title to the land, he should be left to abide the result of the ejectment suit, and that any other course gives him a great advantage, especially so if the limitations contained in Act No. 84, Pub. Acts 1903, are valid.

The defendant having demurred to the bill of complaint, the allegations contained therein must, for the purposes of this case, be taken to be true. Wales v. Bank of Michigan, Har. Ch. (Mich.) 308; Bates v. City of Hastings, 145 Mich. 574 (108 N. W. 1005).

An important feature of the case stated in the bill of complaint is the fact that complainant is now, and has been for a long time, in possession of the land.

In the case of Woods v. Monroe, 17 Mich. 238, Chief Justice Cooley, speaking for the court, said:

“It is claimed that the case is not a proper one for relief in equity, inasmuch as the Complainant claims by his bill a complete legal title, which could be fully examined and settled at law, and a part of the defendants had already commenced suits in ejectment for the recovery of their undivided interests in one of the lots in controversy, which suits were stayed by injunction in this proceeding.
“ We do not think there is any force to this objection. The complainant was in full possession of the lands, and was not, therefore, in position to bring his right to trial by a suit in ejectment. The defendants were severally bringing actions against him in respect to one of the lots; and as he had an unquestionable right to file a bill to quiet his title to the others, and the questions were, the same as to all, it was proper that, to avoid a multiplicity of suits, the ejectment suits should be enjoined, and the questions in controversy be all determined in one proceeding. Besides, the record title was in the defendants, which, of itself, would justify the bill.”

The decree of the court below is affirmed, with costs.

Steere, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    CLARK v. CLUNE.
    1. Judgment — Foreign Judgment as Evidence — Indemnity— Guaranty.
    In an action upon a guaranty that the purchaser of plaintiff’s interest in a partnership would pay all obligations due from the firm, evidence of a judgment obtained in a foreign State against the plaintiff upon a demand against the former partnership was prima faeie proof of the amount of plaintiff’s damages.
    2. Same — Notice.
    No notice to the guarantor or indemnitor of pendency of that action was necessary in order to render the judgment admissible.
    3. Same — Trial—Conduct of Counsel.
    Defendant’s attorney committed prejudicial error in commenting, during his argument, upon the pleadings and findings in the court of the foreign State where judgment was obtained, as the judgment concluded the parties as to all matters necessarily considered in arriving at the determination.
    4. Fraud — Indemnity, Contract of.
    Where neither plaintiff nor the purchaser of his interest in the business made, in plaintiff’s presence, any false statements relating to the amount of debts covered by the guaranty, defendant could not escape liability for breach of the guaranty on the theory that he was misled as to the amount of debts.
    Error to Cheboygan; Shepherd, J.
    Submitted April 12, 1912.
    (Docket No. 74.)
    Decided October 7, 1912.
    Assumpsit by Orange M. Clark against John H. Clune for breach óf a contract of guaranty. Judgment for defendant. Plaintiff brings error.
    Reversed.

      David H. Crowley (Q-eorge W. Weadock, of counsel), for appellant.

      Henry Hoffman, for appellee.
   McAlvay, J.

Plaintiff brought this suit against defendant to recover upon a certain guaranty given to him by defendant in writing, as follows:

“ For a valuable consideration to me paid, I do hereby guaranty the payment by said Charles M. Robinson of all of the notes, accounts, dues and demands against said co-partnership of Orange M. Clark and Charles M. Robinson, now existing.
“Dated, Cheboygan, Michigan, this 8th day of December, 1904.”

This guaranty was on the back of a written dissolution of a partnership known as the Robinson Towing Company, between the plaintiff and Robinson, whereby ,plaintiff, in consideration of $3,000, sold Robinson his undivided one-half interest in such copartnership, and in which Robinson agreed to settle all claims and accounts against the copartnership, and the writing sued upon was given to secure the fulfillment of such agreement on the part of Robinson. Plaintiff had theretofore sold a valuable sawmill property at Cheboygan to Embury & Martin for $78,192.40, part of which was paid in cash and for the balance six promissory notes were given, included in which sale were certain white pine boom sticks and the chains by which they were attached together. This sale occurred February 13, 1904, and the partnership known as the Robinson Towing Company continued under the active management of Robinson until December 8, 1904. After such sale plaintiff moved to Portland, Or., and a balance on the last note became due, and, payment not having been made by the makers, he brought suit to recover the same in the circuit court for the county of Mult- * nomah against Embury & Martin, and secured personal service upon Embury. Defendant Embury appeared and contested the case. He pleaded a counterclaim and set-off for the value of these boom sticks, claiming that they had been converted by the Robinson Towing Company, of which plaintiff was a member. The case in the Oregon court proceeded to trial upon issue joined, and a judgment was rendered, wherein, as appears upon the face thereof, the plaintiff was allowed the amount of the balance on the note he claimed to be due with, interest, and defendant was allowed as a counterclaim and set-off the amount of the value of the boom sticks, together with interest thereon, and a judgment was rendered against plaintiff and in favor of defendant for the difference, $686.22, and costs. This judgment, amounting to $874.87, was after-wards paid by plaintiff, Orange M. Clark, and he later instituted the instant suit, as above stated, upon the guaranty of defendant. It was tried before the court and a jury, and resulted in a verdict of no cause of action. The case is before this court on writ of error for review, brought by plaintiff.

The errors assigned and relied on are grouped by appellant as follows: (1) Those with reference to the charge of the court as to the necessity of notice to defendant of the pendency of the suit against plaintiff in the Oregon court; (2) relative to misconduct of counsel for defendant in his argument to the jury; (3) relative to the charge of the court on the question of fraud.

Upon the trial of the case there was offered by plaintiff and received in evidence, without objection, a certified copy of the record in the Oregon court in the suit referred to, including complaint, answer, finding, and judgment. The defendant in the instant case pleaded the general issue with notices of special defense. The notices relied upon were that defendant was induced to sign the contract of guaranty by fraud, misrepresentation, and concealment on the part of plaintiff; and that defendant never received any notice of the pendency of the Oregon case.

The portions of the charge upon which errors are assigned are as follows:

“ It was necessary, in order for the plaintiff to establish his case, to prove that notice of some kind was given Mr. Clune of the commencement of that suit there.”

Also:

“ If that notice was given, yon will go on and further investigate the matter — give it further consideration. If it was not given, you will stop right there and render a verdict of no cause of action.”

Also:

“As I stated before, the burden of proof of showing fraud is upon the defendant; but the burden of proof of showing that notice was given to Mr. Olune is upon Mr. Clark.”

The appellant contends that the court was in error in charging as above quoted, for the reason that the proof of the judgment against him in the Oregon court, which was received as evidence in the case, established, prima facie, the liability of defendant. We agree with this contention of appellant. The law is well settled in this State that, although the indemnitor is not notified of the former suit, a judgment against the indemnitee is prima facie evidence of the amount of the damages for which the indemnitor is liable. The court should have so charged the jury. Grant v, Maslen, 151 Mich. 466 (115 N. W. 472, 16 L. R. A. [N. S.] 910), and cases cited. This is all that the appellant claimed in the instant suit. The question of the conclusiveness of the judgment was not before the court. The trial court was in error in giving the portions of the charge excepted to.

During the course of the argument, the counsel for defendant was allowed by the court to make certain statements relative to the proceedings in the Oregon case, discussing and criticising the plaintiff’s pleadings therein and the findings of the court, as bearing on the questions of defendant’s liability involved in the instant suit. It will be unnecessary to quote these portions of his argument, and it will be sufficient to say that the judgment in the Oregon court was conclusive as to all facts and matters which were necessarily taken into consideration by that court in arriving at such judgment. Consequently the argument of counsel excepted to was improper and highly prejudicial.

The third and last assignments of error which appellant discusses are relative to those portions in which the court charged the jury upon the question of claimed fraud by plaintiff in procuring the indemnity. The only testimony in the case claimed to bear on the question of fraud perpetrated upon defendant at the time the guaranty was given is the testimony of defendant, which, it is claimed, tends to show that plaintiff stated or acquiesced in a statement in detail as to all debts this guaranty was to cover, and the boom sticks were not mentioned. All that he testifies to upon this subject has been carefully examined and in it there is no testimony of any false statements made by plaintiff or his partner, in his presence at the time, in order to secure his signature, and defendant states positively that he read with care the guaranty he signed, knew its contents, and would not otherwise have signed it. He also testified that he knew Robinson had purchased the plaintiff’s interest. He says they explained that to him and the guaranty was shown him and he was asked to sign it; that they explained to him it was for any debts; that Robinson told him “that Mr. Clark wanted a bond from him against the debts and obligations of the firm, said that in substance.” He says he cannot give the words of what was said; that the substance was all contained in that paper. The undisputed evidence in the case shows that plaintiff at the time of the execution of the guaranty had no knowledge that the boom sticks had been taken by Robinson. There was no evidence in the case which would warrant the submission of the question of fraud to the jury.

The judgment of the circuit court is reversed, and a new trial ordered.

Moore, C. J., and Steere, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Moore, 0. J.

text:
    HABICHT v. GALLAGHER.
    1. Sales — Contracts—Evidence oe Breach — Prior Shipments.
    It was incompetent to show, in defense of an action for the vendee’s breach of contract brought by a seller of preserved cherries, that goods previously received by the purchaser were defective, for the purpose of showing that goods refused before delivery and in the seller’s hands did not conform to the requirements of the contract.
    2. Same — Inspection—Inferences.
    Where an actual inspection showed that the consignment of cherries refused was in good condition after refusal to accept, and testimony was offered tending to show that if cherries were properly prepared they would keep from 18 months to two years, it could not be inferred from testimony that they had commenced to ferment three months after the time of tendering shipment, no stipulation having been included in the contract as to what crop was intended, that they were defective when defendants declined to receive the consignment.
    3. Same — Damages—Notice of Sale.
    In the absence of any testimony that the price obtained on resale at auction was unreasonable or an unfair basis of damages, defendants who had rejected the offer to ship the cherries, and had neglected to give shipping instructions in response to repeated requests of plaintiffs, was not .entitled to have submitted to the jury the question of sending and receiving notice of the resale made on defendants’ account, of which defendants claimed to have had no notice.
    Error to Wayne; Murfin, J.
    Submitted April 11, 1912.
    (Docket No. 150.)
    Decided October 7, 1912.
    Assumpsit by Frank E. Habicht and others, copartners as Habicht, Braun & Company, against Frank Gallagher and others, copartners as E. B. Gallagher & Company, for breach of a contract of sale. A judgment for plaintiffs on a verdict directed by the court is reviewed by defendants on writ of error.
    Affirmed.

      Ralph B. Wilkinson, for appellants.

      Clark, Lockwood, Bryant & Klein, for appellees.
   Moore, 0. J.

The plaintiffs are importers and jobbers in confectioner’s supplies and fruits, having their place of business in New York. The defendants are engaged in a confectioner’s supply business in Detroit.

About May 14, 1907, plaintiffs, through their agent, Frank Gruber, received from defendants an order for goods, among which were 10 cases of fancy Bigarreaux cherries:

This order is subject to goods being in stock on the day of shipment promised.
10 c/s Fancy Bigarreaux..............................26
2 c/s on arrival______________________________________
6 c/s before Dec. 1st, 1907............................
4 c/s before April 1st, 1908 ___________________________
2 c/s A. D. small sour cherries before Jan. 1st........ .284
5 c/s Asst. Fr. fruits before April 1st____________■_____
Prices and quality guaranteed.

A portion of this order was shipped and payment made therefor. Defendants declined to take four cases of the Bigarreaux cherries and one case of the sour cherries.

After the testimony was all in, the trial judge directed a verdict in favor of the plaintiffs. The case is brought here by writ of error. Counsel discuss two questions in the brief. We quote:

“ Notice of intention to sell. The only proof of any notice given of the intention to sell is the testimony of Mr. Bryant, one of the attorneys for plaintiff, who produced a letter which he said was sent to defendant. This letter defendant absolutely denies having received. This, in itself, must raise the question for the jury as to whether or not such letter was in fact received by defendant; this is a material question, in view of the fact that the price realized upon such resale is the basis of the measure of damages.”

Second (we again quote):

“ It was a question for the jury as to whether the goods refused by defendant were of good quality. All of the cases cited by plaintiff in its argument in the trial court hold merely that the defendant is not justified in refusing to accept goods delivered in installments, because the goods delivered in previous installments had not been of the kind provided for in its contract, and that there must be proof of some kind that the goods rejected were not up to the standard. In the present case the defendant offered the testimony of several witnesses that goods of the quality provided for in the contract between the parties in this cause would keep from 18 months to 2 years in first-class condition without spoiling. The testimony of plaintiff in this case further shows that these goods had spoiled at the time of the sale on July 28th, which was about three months after the time when defendant should have received them; and it is the claim of defendant that these were facts which bore, upon the question as to whether the goods which defendant refused were in first-class condition at the time óf refusal, and should have been left to the jury to determine, particularly in view of the fact that the contract itself guaranteed the quality of the goods.”

In order to pass upon the propositions intelligently, it will be necessary to consider somewhat in detail the facts disclosed by the record. It will be noticed that the last. of the cherries were to be ordered out before April 1, 1908. On March 26, 1908, the plaintiffs wrote defendants, calling attention to the order, and said:

“We regret to state that we will be unable to hold these goods any longer for you, and will ship same to you on April 1st as ordered, which we trust will be satisfactory.”

To this letter a reply was sent, saying:

“Gentlemen: Tour letter of the 26th pertaining to cherries to hand. Do not under any circumstances ship us any more Bigarreaux cherries. We have a number of cases on hand and they are not going at all, selling very slow. We cannot use them at any price.”

Another letter followed in March, which is not material here.

On June 19, 1908, the Detroit attorneys for the plaintiffs wrote defendants as follows:

“ These cherries have been purchased by you and were obtained by our clients to specially fill this order and are held subject to your order. We now write you to advise you that our clients will hold these subject to your disposition until June 23rd. Not hearing from you on that date, they will sell the same in the open market and we have instructions to begin suit against you to recover for the difference between the price obtained by them and the contract price which is the true measure of damages for a breach of this contract.”

The testimony is that this letter was mailed with postage paid to defendants. They claim they never received it.

The following testimony was given:

“ Previous to April 1, 1908, I examined the cases held at our warehouse, and found the cherries in first-class condition; examined them a number of times prior to April 1st, at intervals of about one month, and found them in first-class condition on and before April 1st. I have been examining goods of this discription for over 10 years. After April 1st we stored them at our warehouse, No. 130 Worth street, New York City. As we did not receive shipping instructions from the defendant, we put goods up at auction on July 28, 1908, and same were sold on that date as per bill of sale from Burdette & Dunn, auctioneers. I examined the goods twice after April 1st. The first time the goods were found in first-class condition. The second time, about July 10th, the goods began to slightly turn. The goods, when sold at auction, brought less than 24£ cents a pound partly by reason of the fact that the goods were not in first-class condition, and partly because the goods were sold at public auction. They brought at the auction sale $205.20. The expense of the sale was $11.70. The amount still due the plaintiff from the defendant is $370.14“.”

This testimony was not contradicted by anybody, except as the following may tend to contradict it:

“Mr. Wilkinson: I have a witness to whom these goods were sold by Mr. Gallagher, goods bought from Habicht, Braun & Co., who will testify as to the condition and quality of those cherries as being sour and moldy, and he returned them to Mr. Gallagher. I tender that evidence without putting the witness on-the stand.
The Court: I think that is the proper tender, and, were the witnesses here, I would rule it, and then you may have the benefit of an exception. (Exception for the defendant.)
“Mr. Wilkinson: I also tender as witnesses persons who are familiar with and who have handled Bigarreaux cherries, which testimony will be cumulative to Mr. Wallace’s and Mr. Gallagher’s as to the length of time that cherries properly cured and prepared will keep without molding or turning sour.
“The Court: I would make the same ruling as to. that. In view of the position I take, I do not believe that is prop-per testimony.”

On April 9, 1908, plaintiffs wrote defendants:

“Up tothe present writing we have not received shipping instructions from you for the four cases of Bigarreaux cherries and one case of small sour cherries for which we sent you invoices on April 1st. As it is impossible for us to hold these goods any longer for you we would thank you to kindly give us shipping instructions covering same.”

They wrote again May 7, 1908, asking for shipping instructions.

The only complaint made in the correspondence as to the cherries is as follows: On December 2, 1907, defendants wrote plaintiffs as follows :

“Regarding the Bigarreaux cherries we again ask you not to make shipment of these cherries at any one shipment, and want to say to you that you need not make shipment of them at all, unless they are running better than the cherries we have been receiving from you this season. We are having complaints on the cherries we receive from you right along, parties state that the top layers are all right, but the bottom of the box contains pieces which they cannot use. To satisfy ourselves, the writer went 'through a number of boxes this morning, in the presence of a customer who had made complaint, and we find them just as he said they were. He would not buy any more of this particular brand but ordered cherries of another brand which we have in stock and which are all right.
“ Do not ship the cherries until we order them out, and then do not ship unless they are strictly No. 1 Bigarreaux whole cherries. We cannot use them if they are part pieces.”

It is claimed complaint was made to Mr. Gruber, the agent.

We have stated in substance what is shown by the record. It was not competent to show that the cherries which were delivered were not up to the standard, for the purpose of showing that those which were refused were not up to the standard. McFadden v. Wetherbee, 63 Mich. 390 (29 N. W. 881); Kupfer v. Clothing Co., 141 Mich. 325 (104 N. W. 582). Was there any other testimony from which the inference that the cherries were not up to the standard could be fairly drawn ? It is said that this testimony would have been supplied by the re-j ected testimony offered,- to the effect that properly prepared cherries would keep from 18 months to two years. Did any one suggest as to when this period of time was to begin ? It is evident cherries cannot be picked and cured at all times of the year. The order was given May 14, 1907. It was to be filled between its receipt and the 1st day of the following April. The order does not state from what crop it was to be filled. It is true that the quality of the cheyries was guaranteed, but that applied to their condition at the time when they were to be delivered. We cannot see how the testimony, if admitted, would give rise to a fair inference that the cherries were not in good condition April 1, 1908, especially in view of the testimony that an actual inspection after that date showed them to be good.

Was it essential to serve notice of sale before the sale at auction could be made ? It should not be forgotten that on March 27, 1908, defendants wrote plaintiffs:

“Do not under any circumstances, ship us any more Bigarreaux cherries. * * * We cannot use them at any price.”

They were urged March 30th to give shipping orders. They were informed April 9th that it was impossible for plaintiffs to carry the goods any longer. They were urged on May 7th to give shipping orders for these goods. They did not do as requested, and the cherries were sold July 28, 1908. There was no testimony that they did not bring all they were worth. The case of Holland v. Rea, 48 Mich. 218 (12 N. W. 167), is pertinent upon the subject of notice.

If defendants had offered testimony to show that the difference between the price brought by the cherries and the contract price was not a fair measure of damages, it is possible there might be some ground of complaint that the case was not left to the jury. But we have been unable to find any such testimony in the record.

Judgment is affirmed.

Steers, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    JOHNSON v. O’NEILL.
    Contracts —Architects —Building and Construction Agreements — Evidence.
    As evidence that plaintiff, an architect, suing to recover for services performed, should be charged with damages for negligent performance of his duty to superintend the construction of the building in question, his report to his employer showing a large number of defects in the completed structure was competent.
    Error to Wayne; Murfin, J.
    Submitted April 12,1912.
    (Docket No. 29.)
    Decided October 7, 1912.
    Assumpsit by Arland W. Johnson against John G. O’Neill and another for services performed as defendants’ architect. Judgment for plaintiff. Defendants bring error.
    Reversed.

      Wm. G. Fitzpatrick and M. Hubert O’Brien, for appellants.

      J. Emmet Sullivan and A. O. Bishop (L. W. Morgan, of counsel), for appellee.
   Moore, 0. J.

This suit is brought by the plaintiff to recover a balance claimed to be due for the services as architect of plaintiff in the preparation of plans and specifications for a building at Port Huron, Mich., and in the supervision of its construction, together with- certain extras. The defendants’ plea is the general issue with notice of set-off and recoupment, which asserts (1) part payment of the contract price by cash and credits; (2) a set-off under the common counts consisting of the same items; (3) damages due to the negligence of plaintiff in preparing the drawings, plans, and specifications, in letting contracts and superintendence, resulting in delay, improper construction, and acceptance of defective materials; and (4) plaintiff’s failure to complete his contract, necessitating its completion by defendants at their own expense. The trial resulted in a verdict for plaintiff for $797.36, and from the judgment on this verdict the defendants have sued out their writ of error.

There are a great many assignments of error argued, but it was stated on the oral argument that the important question in the case was whether the court erred in excluding a report made by the plaintiff to the defendants. The defendants made a contract with one Herman for the construction of the building. This contract contained, among others, the following provisions:

“(3) All the material furnished in the construction of said building, and all workmanship connected therewith, shall be agreeable to and in strict conformity to the drawings and specifications made by Arland W. Johnson, architect, which are hereby referred to and made a part of this contract, with like effect as though attached hereto, all such materials and workmanship to be furnished, to be done to the entire satisfaction and subject to the approval, and under the direction of the said Arland W. Johnson, who shall have full power and authority to reject all materials and workmanship which in his judgment are not in full accordance with the said plans, specifications and detail drawings.”

Paragraph 4 provides for payments to be made on the certificate of the architect—

“ The final payment to be due and payable when said architect shall certify that said building is fully completed in accordance with the plans and specifications and to his satisfaction.”
“(8) It is understood and agreed by and between the parties hereto that the work included*in this contract is to be done under the direction of said architect, and that his decision as to the true construction and meaning of the drawings and specifications, and his determination as to the quality and kind of material placed in said building as required by the specifications, shall be final and conclusive between the parties hereto.
“(9) It is also understood and agreed that such additional drawings and explanations as may be necessary to detail and illustrate the work to be done, are to be furnished by said architect. * * * ”

Paragraph 10 provides that the owner may require “any alterations of, deviations from, additions to, or omissions from said contract ” during the progress of the work without injuriously affecting or avoiding the contract, but that the difference in price shall be added to or deducted from the amount of the contract by a fair and reasonable valuation to be determined by the written estimate of the architect. It then provides for arbitration in the event of dissatisfaction with the architect’s estimate. It also provides that all extras to the contract must be covered by a written agreement signed by both the owner and the architect.

Paragraph 11 requires the builder to remove all condemned materials from the grounds and buildings within 24 hours after written notice from the architect, and, upon similar written notice, to take down all portions of the work which shall be deemed by the architect as unsound or improper or as in any way failing to conform to the drawings and specifications; and it requires the builder to make good all work damaged or destroyed thereby.

The specifications describe some of plaintiff’s duties as follows:

“The work is to be done in a manner and of materials in every way acceptable to the architect, * * * and his decisions as to the character, fitness or unfitness, of the work or the material, is to be final and binding on all parties.”

They also give plaintiff the right to require the prompt discharge of any subcontractor or employé, to order the removal from the building or premises of any material he may deem unsuitable, either worked or unworked, on the ground or set in place, and to make deductions in his estimate therefor, his decision being final and binding. He may retain faulty work or material and deduct the difference in value from the contract price, and in such case his decision shall be final and binding. It is expressly stipulated that “ faulty work or material, if retained, will not be paid for in full.”

The plaintiff was a witness in his own behalf. On the cross-examination he had testified to the number of visits he made to the building, and to the making of a final inspection in May, when the following occurred:

“The work was not satisfactory when I made that final inspection, and I did not accept the building.
“Q. In how many particulars was it not satisfactory?
“A. The report is the best evidence of that.
('Q. There are hundreds of items in that report, which are details in which the building as completed at that time did not comply with the plans and specifications, is that right ?
“A. As built at that time. Exhibit 74 is signed by me, and is that report, which was made in triplicate. It is one of the three which were made. It is as complete as was possible for me to make it, and everything in this report is true, as I see it.
“Mr. O’Brien: I offer this report in evidence.
“Mr. Sullivan: No objection.
“The Court: In spite of the fact that there is no objection, what is the purpose of that report, so far as the controversy between you gentlemen is concerned.
“Mr. O’Brien: We claim that Mr. Johnson is responsible for a great deal of work that he refused to accept, for the failure of it to comply with ^is plans.
“The Court: Does the report show these ?
“Mr. O’Brien: It shows those items.
“The Court: Does the report show who is responsible for it ?
“Mr. O’Brien: No.
“The Court: Then are we going in this controversy to inquire into every one of those details, and ask whether the fault was the contractor’s or the architect’s ?
“Mr. O’Brien: We have selected a sufficient number of details on which we make that claim. We do not claim it in regard to all of them, of course.
“The Court: It seems to me each one of those details involves an entirely separate and distinct lawsuit, does it not? Take a concrete illustration. It is not in this case, but just to assume for the purpose of this inquiry that in this report there is a complaint that the roof is not properly on this building. The owner of the building has not yet paid the contractor for that roof. . There is a question involved as to whether the fault is in the specifications, in the design or in the construction. It would require a lawsuit to determine that. If that item should appear in the report that the roof is not proper, are we going here in this lawsuit to try out the collateral lawsuit?
“Mr. Fitzpatrick: No.
“ The Court: That is inevitably what it will lead to.
“Mr. Fitzpatrick: I think not, your honor. This report is offered in evidence as substantive proof in the way of admission by this man, that there were in that building, that he was engaged to superintend the construction of, certain substantial and material defects, and deficiencies both in reference to material used and workmanship, the design and execution of which come within the purview of the duties of the superintending architect to correct as they were going on; and I think for that reason, in view of the allegation here which is made in the plea, that we are entitled to the report as he made it.
“The Court: On the theory that it was his duty to have prevented this ?
“Mr. Fitzpatrick: Yes, your honor. That is exactly what a superintending architect is supposed to do.”

A further colloquy followed, but the court excluded the report. The report described with more or less detail upwards of 100 defects in the building which plaintiff had discovered. The claim of defendants is (we quote from brief):

“We contend that the trial court should have permitted it to go to the jury (1) because it was plaintiff’s duty as superintending architect to see that the plans and specifications were complied with, and this report is his own confession that the building as built did not conform with such plans and specifications; and (2) because it was the jury’s province to determine whether or not any or all of the items therein set forth were due to plaintiff’s negligent superintendence and formed proper subject-matter of defendants’ set-off or recoupment.”

The reply of counsel for plaintiff to this contention is that defendants could have made themselves good by retaining a sufficient amount from the contract with Mr. Herman. We quote from brief:

“ If the defendants have deducted the damages from the amounts remaining unpaid on the contract prices, or they, having the opportunity given by the architect by his refusing estimates and making an inspection and report showing the amounts to be deducted,, did not take advantage of such opportunity, but chose to pay nevertheless, can it be said that they have suffered any loss which was not made good or have any right of action against plaintiff where their loss came from their own negligence in paying off the contractor ? The refusal of the admission in evidence of Exhibit 74 was at the worst a harmless error. Defendant suffered nothing, even if technically the report was admissible, as at best the report would only prove the existence of defects in the building for which defendants already had received compensation, or, if not, the lack of compensation came from their own acts in paying off when they had knowledge of the defects and against the wish and warnings of plaintiff.”

To this argument defendants reply, first, that they are entitled to have the building for which they had contracted and which they would -have if plaintiff had properly superintended its erection; second, that they have been obliged to pay so much for liens for material that it more than ate up anything they failed to pay the contractor; and, third, that they have a right to recoup from the architect for his negligence irrespective of their relations with the contractor.

This court has had occasion to define the duties of an architect. In an early case Justice Cooley, speaking for . the court said:

“ The nature of the duties to be performed by a superintendent are such that it would be highly, improper that he should be appointed or controlled by the contractor. He is to oversee the work by the contractor, and to exercise a quasi judicial authority in determining upon its suitableness and sufficiency under the contract; and this fact would seem to preclude all idea that he was to superintend for his employers his own work. The two positions of contractor and superintendent of the contractor’s work are inconsistent, and it is no less than an absurdity to imply a contract on the part of the employers to pay him for accepting on their behalf his own work.” Friedland v. McNeil, 33 Mich. 40, 42.

In a later Michigan case Mr. Justice Grant wrote the opinion. Chapel v. Clark, 117 Mich. 638 (76 N. W. 62, 72 Am. St. Rep. 587). In this case the charge of the ■trial judge is approved as a correct statement of law. It reads as follows:

“A person who holds himself out to the public in a professional capacity holds himself to be possessed of average ability in such profession, and the law implies that he contracts with his employer (1) that he possesses _ that requisite degree of learning, skill and experience which is ordinarily possessed by the profession in the same art or service, and which is ordinarily regarded by the community, and by those conversant with that employment, as necessary and sufficient to qualify him to engage in such business; (2) that he will use reasonable and ordinary-care and diligence in the exercise of his skill, in the application of his knowledge, to accomplish the purpose for which he is employed; (3) in stipulating to exert his skill and apply his diligence and care, an architect, like other professional men, contracts to use his best judgment. If you shall find that the plaintiff was qualified to that degree which the law required him to be in his profession, then the question as to whether or not he did the work unskillfully is a question which you are to determine under the rule I have just given you. If he made any mistakes by which the defendant was damaged, and it was through negligence or from incapacity, he is liable for such alleged specific damages as you may find from the evidence grew out of such negligence or incapacity. If, from a mistake growing out of the exercise of his best judgment, he possessing the reasonable degree of learning, skill, and experience in his profession required by law or implied by law, then, in such case, he would not be liable for any damage resulting therefrom. A mistake in judgment does not excuse negligence or ignorance.”

See 6 Cyc. pp. 45, 47. See, also, 1 Hudson on Contracts, pp. 54, 74; Straus v. Buchman, 96 App. Div. (N. Y.) 270 (89 N. Y. Supp. 226). We think the report was competent and material, and should have been admitted in evidence. We deem it unnecessary to discuss the other assignments of error, as what we have said will take care of those which have merit.

The case is reversed, and new trial ordered.

Steere, McAlvat, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Steere, J.

text:
      In re KOHN’S ESTATE. WILSON v. GRAEBNER.
    1. Wills — Probate of Estates — Witnesses.
    Upon the hearing of a contested will case, witnesses having any knowledge of facts material to the issues, in addition to the attesting witnesses, may be produced and examined.
    3. Same — Execution—Attestation—Signature of Testator.
    If the testator acknowledges and states to the attesting witnesses that the signature affixed to the instrument is his, a presumption arises that it was affixed in accordance with the requirements of the statute, but if the presumption is rebutted by evidence on the trial, the will cannot be sustained.
    3. Same — Publication.
    In Michigan, publication of a will, defined as “the act of making it known in the presence of witnesses that the instrument to be executed is the last will and testament of the testator ” with the strict observance of spécific formalities imperative in many jurisdictions, is not required: but in executing a will according to statutory requirements, the attesting witnesses should be advised that the instrument to which they subscribed is his will, and such execution is equivalent to publication.
    4. Same — Re-exeoution of Will — Signature.
    Where testatrix, instead of executing a new will, or changing the original will and subscribing it again, caused certain erasures and additions to be made therein without changing the date, and taking a dry pen retraced her former signature in the presence of the witnesses who were informed by her that it was her will and who signed as witnesses at her request, in her presence, and each in the other’s presence, it was a valid execution of the instrument as modified.
    5. Same — Date.
    The written date of a will or of its attestation establishes prima facie the date of its execution, but is not conclusive: the true date may be shown by competent evidence, the burden resting on the party so attempting to show a different time of execution.

      Error to Saginaw; Gage, J.
    Submitted June 6, 1912.
    (Docket No. 28.)
    Decided October 7, 1912.
    Carl F. Wilson and another presented to the probate court of Saginaw county for probate an instrument claimed to be the last will of Louisa D. Kohn, deceased, showing certain alterations. ■ Louise Graebner presented the instrument as originally drawn, and a subsequent codicil. On appeal to the circuit court a judgment was entered admitting to probate the altered will and holding the codicil revoked. Contestant appeals.
    Affirmed.

      Otto & Davis, for appellant.

      Lee E. Joslyn (Weadock & Weadock, of counsel), for appellees.
   Steere, J.

This case presents a contest over the will of Louisa D. Kohn, who died on January 20, 1911, aged 83 years, in Saginaw, Mich., leaving an estate valued at approximately $8,000. She had been a widow some 18 years, and during that time had control of, and managed, so far as shown, her own property. Five daughters and two sons survive her, whose ages range from 45 to 58 years. No question is raised as to her mental condition or capacity to dispose of her estate by will. This contention arises from her having first made her will, then a codicil, and then taken steps to change and re-execute the original will.

Four of the daughters will fare best if her last effort is sustained. Appellant’s interests are to sustain the original will and codicil; and the sons would benefit by no will being admitted to probate.

There is little conflict in the testimony, and the case presents no serious issue of fact.

On Jun.e 23, 1905, while visiting a married daughter, Mrs. Wilson, in Bay City, Mich., deceased made a will, which was drafted by Lee E. Joslyn, an attorney, who was Mrs. Wilson’s brother-in-law. After due execution of the will in his office, deceased left it with him for safekeeping. Two years later, June 4, 1907, she went into the courthouse in Saginaw, and procured Judge Riley L. Crane, an old acquaintance, to draft a codicil to her will, stating she had made a paper in Bay City and for that reason desired to make the one which he prepared as she indicated. After its execution she left it with him, for safekeeping, in the judge of probate’s office.

Two years later, April 7, 1909, while on another visit to Mrs. Wilson in Bay City — the occasion being a double anniversary celebration of Mrs. Wilson’s marriage and Mrs. Kohn’s birthday — she again visited Mr. Joslyn’s office, in company with Mrs. Wilson, and informed him that she desired to make certain changes in her will. He had preserved the will of June 23, 1905, as she had requested, and produced it from his safe, inclosed in a sealed envelope, properly marked. It was read over and explained to her, and she stated what changes she desired. Instead of preparing a new will, Mr. Joslyn made the changes she desired by drawing ink lines through certain portions of the old will and writing in, with a pen, certain lines to comply with her instructions. He read the will to her as changed, and told her it was not necessary for her to re-sign it, but that she had better go over her signature without ink. Under his direction she took a dry pen and retraced her name, in his presence and that of Mrs. Wilson, who had accompanied her to the office, and then stated to two witnesses he had called that the paper was her will and the signature to it hers, and she desired them to sign as witnesses, which they did, in her presence and in the presence of each other, immediately under the signatures of the two former witnesses to the will, who had subscribed the attesting clause, dated June 23, 1905.

As the instrument reads, the will was executed and all four witnesses signed on that date. One of the witnesses called by Mr. Joslyn testifies she saw Mrs. Kohn retracing her name with a dry pen. The other did not. The paper as changed was again left with Mr. Joslyn, put in a sealed envelope and kept by Mm until Mrs. Kohn’s death, when it was filed in the probate court.

On January 28, 1911, Oarl F. Wilson, as executor, petitioned the probate court of Saginaw county to admit such will to probate; and Louise Graebner, the appellant here, petitioned said court to admit to probate the will as originally drawn and the codicil of June 4, 1907. The two sons filed objections to the allowance of the will in any form. The probate court sustained the original will and codicil. From his order, one of the sons appealed to the circuit court.

On the trial in the latter court, the son failed to offer any testimony, or to further prosecute his appeal, and the proceeding resolved itself into a contention between proponents, seeking to establish the changed will of 1909, and appellant here, seeking to maintain the will as originally executed in 1905, with its codicil of 1907. The case was tried before a jury, and a directed verdict was rendered, sustaining the re-execution, and, as a consequence, finding the prior will and codicil revoked. Thereupon appellant removed the case to this court for review upon a writ of error.

In the absence of the subsequent proceedings of April 5, 1909, the will as originally executed in 1905, and its codicil of 1907, were valid, and entitled to probation. The only material question to determine is whether the instrument, as changed in Mr. Joslyn’s office, was legally re-executed.

The will consisted of seven paragraphs. Alterations were made in but two, as follows: The last 3£ lines • of paragraph 4 were stricken out by drawing lines through them, and in lieu thereof was interlined:

‘ ‘ Provided that the division shall be so made that Louise Kohn Graebner shall receive two hundred less than either of my other four daughters above named.”

And at the end of paragraph 5 was added the following:

“ Provided that if my said daughter shall die without issue then one-half of her share shall go to her husband, John Graebner, if living, the balance to go to my other daughters surviving me, provided that the amount to be received by said John Graebner shall not exceed one hundred dollars (#100.00).”

The concluding part of the will and attestation were unchanged, except by addition of the signatures and addresses of the two witnesses, called as stated. It is as follows:

“ In witness whereof I have hereunto set my hand and seal at the city of Bay City, Bay county, Michigan, this twenty-third day of June, A. D. 1905.
“Louisa L. Kohn. [L. S.]”
“State op Michigan, County of Bay — ss.:
“ On this twenty-third day of June, A. D. 1905, Louisa D. Kohn stated and acknowledged to us, the undersigned, that the within and foregoing was and is her last will and testament; and thereupon we, at1 her request and in her presence and in the presence of each other, have and do hereunto set our hands as witnesses to said last will and testament.
“Names. Residence.
“Lee E. Joslyn, Bay City, Michigan.
“E. L. Wilson, Bay City, Michigan.
“ Susie C. East, Bay City, Michigan.
“Myrtle M. McEarlin, Bay City, Michigan.”

That the manner of re-execution adopted in this case is far from ideal, and would defeat its purpose under certain contingencies, is manifest. Were the witnesses dead or otherwise unavailable, and it became necessary, as is often the case, to establish the attestation by proof of the handwriting of the witnesses alone, the instrument, speaking for itself, would necessarily be probated as having been executed on the date it bears, and the erasures and interlineations, with no memorandum of when or by whom made, would, under strict rules of probation and construction, be rejected, leaving the will to stand as originally drawn. But in this case the subscribing witnesses and scrivener who made the alterations happen to be available, and have testified in detail as to time and circumstances.

It is a recognized rule in contested will cases that they are open for general examination of witnesses having any knowledge bearing on the issues, both the attesting witnesses to the will and others. Abbott v. Abbott, 41 Mich. 540 (2 N. W. 810).

It stands established in the case that the erasures, interlineations, and additions appearing in the will were made under her directions, in her presence, and at her request; that the will, as changed, was read over to and approved by her; that the signature to it was her genuine signature; that she did not rewrite her name to the altered document, because her signature was already there in the proper place, and she was advised the “ dry pen ” performance was equally good. Her act in that particular might be regarded as of some probative force as indicating that she understandingly adopted her signature as of that date to the instrument as it then stood. She thereupon so declared it to the attesting witnesses, who, at her' request, in her presence, and in the presence of each other, attested the will by subscribing their names as witnesses. In the latter particular the requirements of the statute were strictly followed. While in many jurisdictions statutory requirements make it imperative that the testator sign in the presence of the witnesses, ours do not so specify. In this State the requirements for execution, or re-execution, of a will are as follows:

“ No will made within this State, except such nuncupative wills as are mentioned in the following section, shall be effectual to pass any.estate, whether real or personal, nor to charge or in any way affect the same, unless it be in writing, and signed by the testator, or by some person in his presence, and by his express direction, and attested’ and subscribed in the presence of the testator by two or more competent witnesses.” 3 Comp. Laws, § 9266 (4 How. Stat. [2d Ed.], § 10979).

This makes imperative three things: The will must be in writing; it must be signed by the testator (or by some one in his presence acting for him); and two or more competent witnesses must attest and subscribe as witnesses in the testator’s presence.

“ In jurisdictions where the statute is modeled upon the statute of frauds, 29 Car. II, c. 3, § 5, the requirement of which is that the will be ‘attested and subscribed in his presence by three or four credible witnesses,’it is well settled by judicial construction that testator may, if he chooses, sign his name out of the presence of the witnesses and afterwards make acknowledgment before them.” Page on Wills, § 203.

See, also, Schouler on Wills, § 321.

If the testator acknowledges and asserts to the attesting witnesses that the signature is his, a prima facie presumption arises that it was affixed when and in form required by law; but if the evidence on the trial shows to the contrary the will cannot be sustained;

This brings us to the question of whether testator, on re-execution of her will, after making certain changes, could legally adopt, as of that date, to that instrument her genuine signature previously affixed to it in the proper place.

Publication of a will, defined as “the act of making it known, in the presence of witnesses, that the instrument to be executed is the last will and testament of the testator,” with the strict observance of specific formalities imperative in many jurisdictions, is not required in this State. Danley v. Jefferson, 150 Mich. 596 (114 N. W. 470, 121 Am. St. Rep. 640, 13 Am. & Eng. Ann. Cas. 242); In re Kennedy’s Estate, 159 Mich. 548 (124 N. W. 516, 28 L. R. A. [N. S.] 417, 134 Am. St. Rep. 743, 18 Am. & Eng. Ann. Cas. 892). But in theexecution of a will, according to the statutory requirements, the attesting witnesses signing at the request of the testator, should be advised that the instrument to which they subscribed is his will. Execution in substantial compliance with statutory provisions is, in this State, equivalent to publication as treated by text-writers, and is discussed in many published decisions of other States:

“ The methods of republication prescribed by our mod-era statutes are two: -Re-execution and by codicil. Re-execution must be had with all the formalities necessary for original execution. * * * Thus a testator may acknowledge his signature before the witnesses in republication, instead of making a new signature, since the statute gives him that privilege in original execution. But the witnesses cannot acknowledge their signatures, since the statute gives them no such permission. They must sign the instrument once more in the presence of the testator, at hisrequest, just as in original execution.” Page on Wills, § 306.
“ The testator need not sign the will again; for if he acknowledges his signature before the required number of witnesses, with the proper formalities, this is good for either re-execution or an original execution.” Schouler on Wills, § 443.

Vide 29 Am. & Eng. Enc. Law (1st Ed.), p. 333, and cases cited.

In absence of proof to the contrary, the written date of the will, or its attestation, establishes prima facie the date of its execution, but it is not conclusive, and the true date may be shown by competent testimony; the onus of impugning the written date and establishing the true date being upon the party so denying and alleging. In this case proof as to the actual date of the alleged re-execution is positive and uncontroverted. In support of their respective contentions, opposing counsel cite as controlling the opposing cases of Wright v. Wright, 5 Ind. 389, and Hesterherg v. Clark, 166 Ill. 241 (46 N. E. 734, 57 Am. St. Rep. 135). In those two States the statutory requirements for execution of wills are substantially the same as in Michigan. In each of said cases, after the original execution of the will, proceedings were had at a later date similar to those relied on here to establish re-execution, except , that in neither case did the witnesses re-sign.

In Wright v. Wright, supra, the witnesses testified that on a date prior to the alleged re-execution they attested the testator’s will, subscribing the same as witnesses, in his presence, at his request; that on a later date they were called on again by the testator to witness an addition he desired to make in his will, which he inserted in the original in their presence, requesting them to take notice, which they did, but it was not re-signed by him or them. The court there said:

“We are decidedly of the opinion that the will, including the new provision, was duly executed and attested.”

In Hesterberg v. Clark, supra, the testator, having properly executed a will, desired to make a change in it, and a few days later sent for the two subscribing witnesses, one of whom had drafted the instrument. He interlined an additional bequest, at testator’s request, in his presence, and in the presence of the other witness. Neither testator nor the witnesses again signed. The court there said:

“We cannot regard the position taken in the Wright Case, that a reattestation of the will was unnecessary, as sustained by the authorities, or as, in this State, being in accord with the provision of the statute in regard to wills. * * * To hold that a reattestation of the will as changed, or an attestation of the interlined part, evidenced by a re-signing of the witnesses, is unnecessary, would be to dispense with a substantial requirement of the statute, and lead to uncertainty and confusion as to the law in the proof of wills.”

If any inference is to be drawn from this language, applicable to the instant case, it is that the re-execution would have been valid, had the witnesses re-signed and . re-attested the document in its changed condition. In neither of those cases is the failure of the testator to resign even suggested as an irregularity, though the fact was shown. The question on which those cases turned and are in conflict is not involved here. In those cases no attesting witnesses subscribed their names to the re-execution, as required by statute. Here they did. New witnesses to the will as then prepared attested and subscribed it as witnesses, in the presence of the testatrix, at her request; she declared to them it was her will and signed by her. This was a substantial compliance with the provisions of our statute in regard to the execution of wills.

The judgment is affirmed, with costs.

Moore, C. J., and McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.


text:
    WALTER v. WALTER.
    1. Husband and Wife — Alienation of Affections — Evidence.
    It was erroneous, in an action brought by a wife for the alienation of her husband’s affections by his parents, to deny to defendants the right to cross-examine her concerning the averments of a bill for divorce which she stated on direct examination that she had filed against the husband.

      2. Same.
    And instructions to the jury that it was the duty of the husband’s parents to advise him to live with the wife were prejudicial error.
    Error to Wayne; Donovan, J.
    Submitted June 6, 1912.
    (Docket No. 27.)
    Decided October 7, 1912.
    Case by Oasinova Walter against William Walter and Mary Walter for alienation of the affections of plaintiff’s husband. . Judgment for plaintiff. Defendants bring error.
    Reversed.

      Thomas L. Dalton (James S. Doyle, of counsel), for appellants.

      Thomas A. Gonion, for appellee.
   Moore, 0. J.

The plaintiff was married to John Walter in September, 1909. They lived together until about September 1, 1910, when plaintiff filed a bill for divorce against him. She discontinued that proceeding September 17, 1910. In October, 1910, she commenced this suit to recover damages for alienation of affections against the defendants, who are the parents of John Walter. She recovered a judgment for $1,400. The case is brought here by writ of error.

The important questions involved are grouped as follows :

(1) Did the court err in refusing to allow appellants to cross-examine the plaintiff as to the contents of the bill for divorce ?

(2) Did the court err in his charge to the jury in his remarks regarding the plaintiff’s filing suit for divorce, and as to her reasons for filing and withdrawing same ?

(3) Did the court err in making certain remarks to the jury in his Charge as to the importance of the family relation ?

(4) Did the court err in charging the jury that it was the duty of appellants to advise their son to live with the plaintiff, and in refusing the appellants’ fourth request to charge that it was not their duty to so advise their son ?

As before stated, the plaintiff, before commencing this suit, commenced a divorce proceeding against her husband. She, on her direct examination, so testified. The defendants attempted to cross-examine her upon that subject, but were not allowed to do so. This action of the court is sought to be justified by the case of Mead v. Randall, 111 Mich. 268 (69 N. W. 506). A reference to the case will show it to be distinguishable from the instant case. We think the court should have allowed the cross-examination, under Hitchcock v. Moore, 70 Mich. 112 (37 N. W. 914, 14 Am. St. Rep. 474), and Derham v. Derham, 125 Mich. 109 (83 N. W. 1005).

The other errors assigned relate to the charge of the court. Among other things stated by the judge in his charge was the following:

“As the Good Book tells us,‘Troublecometh not from the dust, neither does sorrow spring out of the ground, but man is born to trouble as the sparks do fly upward.’ Trouble came to this family, and whose fault is it, will be° a very complicated question for this jury. To have the family united is the greatest problem today. To keep families in peace and harmony together is the greatest problem of our age, and calls for the best judgment in our community. It has been a menace of late, and has been endured of late, as it never has been before in my recollection. In all the cases that have come before me — 1,500 at least — this is the second one only of alienation, and the divorce cases we have of late are probably five times in number what they were since I commenced in practice. They have been multiplying, increasing, and the duty of this jury is as high a duty as that performed by the highest court of the world — that is, the Supreme Court of the United States — upon this particular question; for a family united is the foundation generally of the government of civilization. Somebody has said, as between civilization and barbarism, is the difference be- 1 tween the Indian’s hut and the ladies’ parlor. I ask you to take this case with a good deal of caution and with a good deal of judgment. * * * I charge you that there is a distinction made between a stranger in an action against parents and the husband; that is, there is a difference. A stranger who interferes with married life, and who has no interest in their married life, is on a different footing from the parents, or one of the children in that marriage. I charge you that a father’s house is always open to his children, and I might add that the children’s house should be always open to the parents, whether married or unmarried. It is as well to them a refuge from evil, and a consolation in distress, and the father is under a legal obligation to maintain his children, and they are under a legal obligation to maintain him, if they are able and he is disabled. And it became the duty of the defendants, the Walters senior, to advise their son to live with plaintiff. They claim they did advise him to live with plaintiff. * * * In a painting I have at home of a lion and a fox, very artistically drawn, in the picture the fox has a cord around the lion’s neck, and is leading him against his will, and underneath the sentence, well written, which says: ‘This painting must have been drawn by a friend of the fox; had the lion’s friend drawn it, the lion would surely be leading the fox.’ It depends altogether in the case who does the painting, whether it is a friend of the fox or the lion, and you bear that in mind in your judgment of men and affairs; that it has an intense meaning who is drawing the painting. There are certain things that would not make anything of a case for alienation at all. Suppose the senior Walter did strike the mother of the girl who sues; that is not before us; that only shows a little bitterness of feeling. We are not to try out that. This is not an assault and battery case. Suppose a child dies prematurely. Death is something none can foretell or forecast. That may have been a misfortune of nature. Do not be carried away by the evidence of the case, to hunt up something to make a case out of. That might be purely a misfortune. Come to the real merit of the case when you decide it. Come to whether somebody has induced somebody else wrongfully to make a separation, to keep them apart. I do not want to talk too long and prevent a verdict. I think the case has been tried so long that you have about all that you can remember; but I do ask you, gentlemen, because this case touches society, and is a vital point, I do ask you to be just, to be at your best, to use your judgment in a case of this kind; for the influence of a verdict is great in the community. The influence of a verdict touching the family is great in a community. Open no doors that should be closed. Do no injustice when you can do justice.”

To say the least, those portions of the charge were unfortunate. That part of the charge in which it is said that it was the duty of the defendants to advise their son to live with the plaintiff is not a correct statement of the law. Some of the principles which should have governed this feature of the ease may be found stated in the opinion in Zimmerman v. Whiteley, 134 Mich. 39 (95 N. W. 989). It is not necessary to discuss the other assignments of error.

Judgment is reversed, and a new trial ordered.

Steere, McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.


author: Bird, J.

text:
    BROWN v. KING.
    1. Amendment — Pleading—Equity—Cross-Bill.
    As an exercise of discretion, leave of the court to defendants to amend their answer and cross-bill so as to pray for affirmative relief, after the cause was at issue and one of the parties defendant had come to a settlement with complainant, was justified by the fact that the facts involved and the rights of the parties were complicated and the amendment was necessary to a full adjudication of their respective claims.
    2. Parties — Equity.
    Two parties respectively claiming title and an adverse lien upon timber by conveyances from a third person who was not made a party to a suit to determine their respective rights by either complainant or defendant and cross-complainant, the objection that the grantor was a necessary party because he claimed an interest in the timber was properly overruled by the trial court on the theory that he was ostopped by his conveyances to question the title of either claimant.
    3. Mortgages — Chattel Mortgage — Notice oe Priority.
    Piling a bill of sale of certain timber in the county clerk’s office, and recording a deed of the same in the office of the register of deeds, was not constructive notice of the grantee’s claim, where the instruments were both given as security for a debt and the deed was not entitled to record because it was attested by only one witness, and neither instrument was treated or filed as a mortgage, and where the grantor subsequently executed a chattel mortgage of the timber, to secure funds obtained to carry on lumbering operations.
    Appeal from Roscommon; Sharpe, J.
    Submitted June 12, 1912.
    (Docket No. 95.)
    Decided October 7, 1912.
    Bill by Charles Brown against Oliver N. King and others for an injunction, accounting, and other relief. From a decree for defendants granting relief claimed in their amended cross-bill, complainant appeals.
    Affirmed.

      Floyd L. Post and William D. Gordon, for complainant.

      John Quinn and O. W. Perry, for defendants.
   Bird, J.

Defendant King and his assignor, the State Savings Bank of Harrison, made loans to one John Reed to enable him to continue certain lumbering operations which he had begun on lands in Roscommon county, and the bank took, as security for its loan, á chattel mortgage on certain logs which had been cut from said premises. Default in payment was made by Reed, and defendant King discharged his obligation as indorser and took an assignment of the security to himself. Later, when he attempted to enforce his lien, complainant filed this bill to prevent him from so doing, claiming that he was not only the owner of the logs, but of the lands from which they were cut. A hearing was had before the Honorable Nelson Sharpe, circuit judge, and a decree made. His opinion therein is returned to us in the record, and it so nearly coincides with our conclusions that we have thought best to adopt it as our opinion in the case:

“On December 10, 1906, Frank Barton and John Reed executed and delivered to complainant a bill of sale of all the timber standing or being on certain lands, among which were the E. of S. W. ^ and S. W. £ of S. E. ^ of section 8, and the N. E. i of N. W. and W. -J-of N. E. J of section 17, in town 22 N., R. 4 W., the same being in Roscommon county, and the same was filed in the city clerk’s office at Midland on May 13, 1907. That soon thereafter Reed purchased from Barton his interest in the firm’s business, and on December 10, 1907, by quitclaim deed, he assumed to convey to complainant the above and other lands. This deed was executed in the presence of but one witness. It was recorded on December 13, 1907, in the office of the register of deeds of Roscommon county.
“Under an arrangement with complainant, Reed began cutting the timber on some of the lands described in these conveyances in 1907, and continued in 1908, when the logs were cut from the lands particularly described above. Brown made advances to Reed to carry on the lumbering operations until the early part of 1908. The defendant King, a director in the defendant bank, had knowledge that the bank, of which Mr. Brown was an officer, in Midland, had declined to honor Reed’s check, and at Reed’s request took up the matter of a loan for him with the defendant bank. This resulted in the bank making loans to Reed on King’s indorsement to the amount of $2,225. On June 20, 1908, Reed had the logs cut ready to be sawed and wanted a further loan, and at the bank’s suggestion he executed a chattel mortgage on all the logs cut from the lands above described to the bank to secure the sum of $3,000. Further advances were made by the bank to Reed, on King’s indorsement, however; the notes were renewed from time to time, and $800 was paid on the indebtedness by Reed. In February, 1909, Reed owed on these notes, secured by the chattel mortgage, $2,200. He then began shipping out the lumber in his own name, against the protest of King and the bank, and an injunction was issued out of the circuit court for Clare county on February 16, 1909, restraining him from doing so. This suit was begun by complainant on March 11, 1909, and by stipulation the case in Clare county was discontinued. Complainant was required to and did furnish a bond to compensate the defendants for any loss occasioned by the issuance of the injunction herein. The lumber was afterwards shipped and sold by Brown and the proceeds credited on Reed’s account.
The affirmative relief asked by the defendants is contained in their amended answer and cross-bill, which was filed, by leave of the court, a considerable time after the cause was at issue, and after Brown claims he had fully settled with Reed. Complainant objected to the filing of the same, and now further insists that these should not be considered. I believe it the wise exercise of judicial discretion to allow these amended pleadings to be filed, and have not changed my opinion in regard to it. The rights of the parties were much complicated; and it seemed the duty of the court, at any time before the hearing, to allow the pleadings to be put in such shape as would permit a full adjudication thereof.
“ It is also insisted by complainant that Reed should have been made a party to these proceedings by defendants, and that his rights and those of the defendants and Brown cannot be determined without the same being done. There would seem no question but that the defendants’ right to these logs, as against Reed, is fully established, were there no claim made by complainant. The defendants were seeking to enforce their claim against Reed and this lumber when complainant interferes with their doing so by filing this bill and serving the injunction herein. It thus became the duty of complainant to show justification therefor. This he can only do by proving, by a preponderance of the evidence, that at that time he was entitled to the possession of the lumber in question. If Reed be a necessary party to the case, it would seem quite as much the duty of complainant as defendants to have had him made such.
“As before stated, it seems clear to me that, as against Reed, the claim of either party to a lien upon this timber is made out; any imperfection in the title of either could not be raised by him. The question is: What are their respective rights, each as against the other ? Complainant insists that absolute title passed to him under his quitclaim deed. In view of the testimony of Reed, called by complainant as a witness, and the admission of the complainant himself, I shall not discuss these questions. The conveyance was clearly given to secure Mr. Brown for moneys owing by and advances to be made to Reed.
“ Should these conveyances, antedating as they, do the bank mortgage, take precedence ? This depends on the fact as to whether or not the bank or King had actual notice, or are chargeable with constructive notice, of Brown’s claim. On the question of actual notice, there is a sharp conflict in the testimony. Reed claims he told King and also Mr. Cave, cashier of the bank, of Brown’s claim. Brown and Mr. Wismer, complainant’s solicitor in this suit, testify that King admitted at one time when in Midland that he knew of Brown’s claim when the mortgage to the bank was made. All of this testimony is flatly contradicted by King and Cave. The fact that Reed procured insurance on the lumber, making loss, if any, payable to the bank as mortgagees, is a strong circumstance tending to discredit him. He claims he also so advised the insurance agent, and yet admits the fact that the agent drove many miles to inspect this lumber. A policy so written would, of course, be void, and the transaction lead to grave doubt as to the truthfulness of Reed. The admissions claimed to have been made in Midland by King were at a considerable time after the bank had taken the mortgage. They are denied by King. If we apply the doctrine of probabilities, does it seem reasonable that King would become liable as an indorser of Reed to the extent of $3,000 if he knew that the title to the product Reed was handling was in Brown ? It also appears that King had personally advanced large sums to Reed. Knowing him to be a prudent business man, I cannot reconcile such conduct with the claim of complainant. Complainant certainly knew that some one was advancing money to Reed to manufacture this lumber. He seems to have been content - to let them do so, believing his title thereto to be good. I can only say that, in my opinion, the claim of actual notice is not made out by a preponderance of the evidence.
“Were the defendants chargeable with constructive notice of Brown’s claim? It does not appear that the complainant was seen by any of the defendants at or about the place where the logs were cut until after the chattel mortgage to the bank was given. The question then is, Was the filing of the bill of sale and the recording of the quitclaim deed constructive notice to defendants ? Counsel for complainant concedes that no title - passed to him under the bill of sale as against an innocent purchaser. Was the recording of the quitclaim deed constructive notice to defendants ? The deed, having only one witness, was not entitled to record. I cannot conclude that the stipulation entered into on January 4,1911, for the hearing of the case in the Gladwin circuit should be held to be a waiver of any objection which defendant might desire to make to the want of a sufficient record of this deed. It does not appear that defendant had any personal knowledge of the deed or the record. Mr. King testifies that he was advised by the register of deeds, over the telephone, that there were no conveyances from Reed recorded.
“The cases of Gordon v. Hydraulic Co., 117 Mich. 621 [76 N. W. 142], and Grand Rapids Nat. Bank v. Ford, 143 Mich. 402 [107 N. W. 76, 114 Am. St. Rep. 668, 8 Am. & Eng. Ann. Cas. 102], seem, also, to clearly sustain the defendant’s claim that the deed, having been intended to operate as a mortgage, should have been recorded as such, and, as it was not, it did not become constructive notice.
“The above considerations would seem to dispose of the questions herein involved. I am of,the opinion that the claim of the bank was a bona fide one; that it passed to King by valid assignment; and that the lumber taken by Brown, covered by the- mortgage, was of a greater value than the amount due on the mortgage.
“The decree may contain a finding that there is due King, under the mortgage, $2,911.40, and*interest from the date of the hearing; that the same was a lien upon the lumber which complainant prevented the defendants from asserting title to and reducing to their possession by reason of the issuance and service of the writ of injunction herein, and that complainant and the sureties on the bond filed herein are liable for the payment thereof.”

The decree of the trial court will be affirmed, with costs of both courts to defendants.

Moore, C. J., and Steers, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred.


text:
    WERNER v. HINZ.
    Highways and Streets —Municipal Corporations — Prescription.
    Owners of land abutting on a street may build upon a strip three feet in width not included in the portion used and occupied by the public during a period of 40 years or more, although the three-foot parcel was originally included in the description of land, 40 feet in width, dedicated for the street, which, however, as established by occupation, was 40 feet wide exclusive of the land in dispute.
    Appeal from Wayne; Codd, J.
    Submitted June 11, 1912.
    (Docket No. 87.)
    Decided October 7, 1912.
    Bill by Charles H. Werner against Herman A. Hinz and another for an injunction and other relief. From a decree for defendants, complainant appeals.
    Affirmed.

      Louis G. Wurzer and Harry B. Keidan, for appellant.

      William D. Ellsworth and Jasper G. Gates, for appellees.
   Moore, C. J.

This is an injunction bill, which, after a hearing, was dismissed. The case is brought here by appeal.

The complainant is,the owner of the north half of lot 59, section 9, governor and judges’ plan, Detroit, which faces on the west side of Randolph street. Defendants own lots 57 and 58 of the same section, also fronting on the west side of Randolph street. Between complainant’s and defendants’ property is the south half of lot 59, which has a frontage of about 30 feet on Randolph street. These lots form the block between Gratiot avenue and Center street, on the west side of Randolph street.

The bill of complaint avers that there is a three-story brick building on complainant’s land, that three years ago defendants erected on lot 57 and the southerly portion of lot 58 a building which projects three feet or thereabouts into Randolph street, and that they are now erecting another building on the northerly portion of lot 58 that projects three feet or thereabouts over the true westerly line of Randolph street. The prayer of the bill is that defendants may be restrained from erecting the building they are now erecting, and be required to remove the building from lot 57 and the southerly part of lot 58, which was built three years ago. Defendants deny that the building already built, or the one they are about to build, encroach upon the street. They insist that the street line has been established where they claim it is for 40 years or more.

The case was heard in open court. The trial judge found in favor of defendants and expressed himself in part as follows:

“ The plat of the Brush farm, lying next easterly to the governor and judges’ plan, dedicated to the use of the city of Detroit a strip of land 40 feet wide, which is known as Randolph street. Under this dedication the city of Detroit has assumed its right of easement over said 40 feet, and in 1841, as shown by the pavement maps of that date, received in evidence, paved to the width of 24 feet, and the testimony shows that there have been, since that time, sidewalks maintained on either side of the pavement to the extent of 8 feet each, making a total of 40 feet in use and occupied by the city authorities. This 40 feet is concededly some 3 feet easterly of the easterly line of the lots, as shown on the Farmer map. This 3 feet is not, and has not been, in use or occupied by the public. It has been held by the courts that the fee to the streets is in the abutting owners, and the municipality has merely an easement in and over them. It is manifest, then, that the property that is not used and occupied by the public becomes the property of the abutting property owners. The street, in its use and occupation for so long a period, in my judgment, is the proper starting point for survey as to the lots which are facing upon it. The erection of the Lohrman seed store, so called, some six years ago, as the testimony shows, was not objected to, and a survey of same was made by city authorities, and the property was found not to encroach upon the street. The proposed building is exactly in line with said building.”

There is not much uncertainty as to the law applicable to the case. It may be found in Diehl v. Zanger, 39 Mich. 601; Twogood v. Hoyt, 42 Mich. 609 (4 N. W. 445); Van Den Brooks v. Correon, 48 Mich. 283 (12 N. W. 206); Gregory v. Knight, 50 Mich. 61 (14 N. W. 700); Rix v. Smith, 145 Mich. 203 (108 N. W. 691); Pere Marquette R. Co. v. Graham, 150 Mich. 219 (114 N. W. 58). The controlling question is one of fact. There were eight or more maps or plats introduced in evidence; one of them bearing date as early as in 1835. One of them was a map prepared for the city when Randolph street was paved in 1871; another when it was repaved in 1900, and again in 1909. Fourteen witnesses were sworn, and, as might be expected, their testimony did not agree. A significant fact is that, when the building was erected on lot 57, the city authorities, after causing a survey to be made, made no objections to the erection of the building, and they do not now complain about the erection of the one in process of building. It would profit no one to recite the testimony. The record fails to establish a case for the complainant.

The decree is affirmed, with costs.

Steere, McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred.