text:
    Etta Rutter v. William Collins.
    [See 96 Mich. 610.]

      Trial— Conduct of counsel — Breach of promise of marriage— Damages — Instructions to jury.

    ’ 1.- The use of methods in examining witnesses which imply facts which cannot be proved is not to be approved, and the argumentative way of presenting a case is better than the vituperative; but, as a rule, the circuit judge must take care-of such matters, which he can do much more satisfactorily and effectually than can the appellate court; citing Randall v». Association, 101 Mich. 561.
    2. In an action for alleged breach of promise of marriage, the court, after instructing the jury that the contract under which the suit was brought was one for life, involving associations and emotions which, if the parties properly cared for each other, would bring to them the highest good, added: “ I have said, the ‘contract under which this suit was brought,’ but by that I do not mean to state that a contract was made, but simply to say what the rule of damages in this kind of a case would be. If you find the contract was made, and a breach of that contract of marriage, the damages would involve injured pride and humiliation, * * * and you should take into consideration plaintiff’s wounded feelings, humiliation, and loss of peace of mind, and award to her such damages as will compensate her for such injury.” And it is held that if, technically, the language used may be said to imply the existence of wounded pride, humiliation, etc., the charge as a whole gave the jury to understand that plaintiff was to recover only compensation for what they might find she had actually suffered; that the court did not say that a breach of the contract would involve these things, but rather that they were involved in the consideration of the question of damages.
    8. The jury were further instructed to consider the social standing of the defendant (who, as shown by the undisputed evidence, was, at the time of the alleged breach of contract, a. man of some property, and the sheriff of the county), and to award to the plaintiff (who was then engaged in doing general housework) such a sum as would compensate her for the loss of the station to which her. marriage with the defendant would have advanced her; also to take into consideration the pecuniary circumstances of the plaintiff, and compensate her for the loss of the home that the defendant, by his contract, if he made it, invited her to come to. And it is held that, if defendant had married plaintiff, it would have been an advance in station for her, in the estimation of society; that it would have been his duty, and according to the common experience, that he should provide for her a home which should be an improvement on such a home as a woman who works out usually has, and that the jury could hardly have failed so to conclude; that the jury must have understood that they could award damages only for a loss of these things, which the plaintiff could not have lost if they would not have existed; that what was said about plaintiff’s pecuniary circumstances was probably in connection with the home referred to, the attention of the Court not being directed to any evidence upon the subject, except as it might be inferred from plaintiffs occupation, and that it was within the rule laid down in Vanderpool v. Richardson, 52 Mich. 339, where it was held that the fact that the plaintiff, in a suit for the loss of a marriage and of an expected home, is without the means to provide an independent home for herself, is not entirely unimportant.
    Error to Clinton. (Daboll, J.)
    Argued November 2, 1894.
    Decided December 18, 1894.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion, and in 96 Mich. 510.

      Lyon é Booling (M,. V. Montgomery, of counsel), for appellant.

      Si L. Kilbourne (Fedewa & Walbridge, of counsel), for plaintiff.
   Hooker, J.

The defendant appeals from a judgment of §1,000 in an action for breach of promise of marriage. As stated in counsel's supplemental brief, error is assigned upon three points:

1. The repeated asking and withdrawal of improper questions.

2. The statement of counsel, in argument to the jury, that defendant should be punished for his misconduct.

3. Error in charge of the court.

We will consider them in inverse order.

The case has been in this Court before, and will be found reported in 96 Mich. 510, where a statement of facts, in the main, as shown upon this trial, will be found.

The eleventh assignment is based upon the following portion of the charge:

Taking into account what I have said, and what has been given you bearing upon that subject during the courtship, and after the time it is claimed that the contract was made, which has been allowed to go to you as bearing upon the proposition of her acceptance and the forming of a contract, looking the whole situation of the parties over in connection with all the evidence here, you are to decide who is in the right in that contention.”

The contract relied upon was said to have been made by an offer of marriage and immediate acceptance. The defendant admitted the offer, but denied the acceptance. Evidence was given showing the subsequent relations of the parties. Upon the former hearing it was held that this testimony was admissible, but the case was reversed upon the ground that the charge of the court permitted the jury to find a renewal of that offer and an acceptance from subsequent conduct of the parties, consistent perhaps with engagement, but not in itself constituting an offer or promise. It was held to be corroboratory only. In charging the jury the court said:

££I do not think there is any form of words prescribed which must be used on an occasion of this kind, gentlemen; but in this case it is claimed that certain things were said, and it is to that conversation and that transaction there that your attention is directed, because it is claimed that then and there the contract was made. And I say to you further, in that regard, that if the defendant proposed to Miss Rutter, saying in substance that he had regard for her, and she did not answer him and did not accept then, that would be no contract, because, as you will see from what I have already said, it lacks the element of agreement; but if you find that the plaintiff, in reply to the defendant’s proposition of marriage to her, said, £ All right; then we will get married/ or that in substance, and that the defendant heard and understood it, that in law would constitute a contract of marriage. So, as to that point, gentlemen, you see where the issue lies, and I have given you upon that point all the help or instruction that I can.”

This was followed by the language upon which error is assigned, quoted above. The court said, in substance: “ Taking into consideration what I have said, and the subsequent conduct of the parties, ‘ which has been allowed to go to you as bearing upon the proposition of her acceptance and the forming of a contract/ you are to decide that question.” What question? Manifestly the question of the immediate acceptance of the admitted offer by the statement, “All right; then we will get married.” He added: “ You are to decide who is in the right in that contention;5 and again: “If you find for the plaintiff there, and find that the agreement was made, then she is entitled to a judgment. If you find that no agreement of marriage was made at that time, that ends the case.” In our opinion, these instructions left no room for a misapprehension of the point.

The twelfth assignment is upon the following:

“ The contract under which this suit was brought was one for life, involving associations and emotions which, if the parties properly cared for each other, would bring the highest good to the contracting parties.” ,

This language was immediately followed by the statement:

“I have said, fthe contract under which this suit was brought/ but by that I do not mean to state that a contract was made, but simply to say what the rule of damages in this kind of a case would be. If you find the contract was made, and a breach of that contract of marriage, the damages would involve injured pride and humiliation; and if you find the alleged breach of contract sued upon by the plaintiff, you should take into consideration her wounded feelings, humiliation, and loss of peace of mind,-and award to her such damages as will compensate her for such injury.”

The court thereby, with. commendable caution, took pains to exclude the construction which counsel put upon his language, and of which they complain. The court appears to have been stating the (rule of damages, as he «ays, “in this kind of a case.” If, technically, his language might be said to imply the existence of wounded pride, humiliation, etc., we think that the charge as a. whole gave the jury to understand that she was to receive only compensation for what they might find that she had actually suffered. He did not say that a breach of the contract would involve these things, but that damages would involve them. In other words, they were involved in the consideration of the question of damages.

The fourteenth and fifteenth assignments are of similar character. The jury were told to consider the social standing of the defendant, and to award plaintiff such a sum as would compensate her for the loss of the station to which her marriage would have advanced her; also to take into consideration the pecuniary circumstances of the plaintiff, and compensate her for the loss of the home that he, by his contract, if he made it, invited her to come to. The undisputed evidence shows that the defendant was a man of some property, who had been the sheriff of the county, while the plaintiff was a woman engaged in doing general housework. If defendant had married her, it would have been an advance in station for her, in the estimate of society; and it would have been his duty, and according to the common experience, that he should provide her a home which should be an improvement on such a home as a woman who works out usually has. The jury could hardly have failed so to conclude. But, as said before, it seems to us that they must have understood that they could award damages only for a loss of these things, which she could not have lost if they would not exist. What was said about the pecuniary circumstances of the plaintiff was probably in connection with the home. Our attention is not called to any evidence upon the subject, except as it might be inferred from her occupation. It was within the rule laid down by Mr. Justice Cooley in Vanderpool v. Richardson, 52 Mich. 339.

This disposes of the questions arising upon the charge.

Complaint is made of the argument of Mr. Fedewa, and the questions of Mr. Kilbourne. In the course of the argument counsel said, “Upon the other hand, gentlemen, Mr. Collins should pay for his Misconduct;” — not be punished for his misconduct. If any fault can be found with this remark, it is that counsel should have said, “ pay for the injury he has done her.”

In discussing plaintiff’s age, it is said that “ Mr. Fedewa •contributed his knowledge, or supposed knowledge, about the matter, and, speaking of Drum’s testimony that she is 37 years old, says: f She ain’t. I believe it is true as she tells you, — her age is 31 years.’” Certainly Mr. Fedewa’s belief upon the subject was not admissible. The trial •court might with propriety have called attention to this, by way of rebuke of counsel, or in his charge, as was done by the learned circuit judge, with the approval of this Court, in Amperse v. Fleckenstein, 67 Mich, 247, cited by counsel. It could not have been anticipated, and comment upon it might have increased, rather than have ■diminished, the dangerous effect of it, if there was any. •Counsel did not ask. that it be stricken out, or offer a request upon the subject, and we cannot hold that the •case should be reversed fpr this remark.

The same may be said about the questions and withdrawals complained Of. It may be, as counsel claim, that there was method in these, and perhaps that it was dangerous to client as well as exasperating to counsel. In .some instances, where it has appeared that injury did result, ■cases have been reversed upon such grounds. As has been .said before, we do not approve of methods which imply facts- which cannot be proved, and we think the argumentative better than the vituperative way of presenting a case; but, as a rule, the circuit judge must take care of such .matters, which he can do much more satisfactorily and effectually than we. Randall v. Evening News Association, 101 Mich. 561.

Finding no error' in the record, we are of the opinion that the judgment should be affirmed, which will be ordered accordingly.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    George Brigham v. Archer D. Martin.

      Logs and logging — Contract—Construction—Conclusiveness of tally.

      1. A contract for cutting the pine and hemlock timber on a designated section of land provided that the contractor should cut everything suitable to work up into shingles or lumber; that he should furnish a scaler, to be agreed upon by the parties, to scale said lumber logs; and that he should have said scaler furnish the scale sheets to the contractee each week. The contract further provided that the contractee should pay $2 per thousand for the lumber logs, according to said log scale; that said log scale should include mill culls, but not dead culls; that the contractor was to be paid for the mill culls, the same as for other lumber; that upon the final settlement the shipping tally of a certain lumber firm which was to saw the logs should be final as to the number of thousand feet of said lumber, and that said settlement should be made according to said shipping tally. And it is held that the contract is free from ambiguity, and its meaning should be stated to the jury by the court; that the contractor was to cut and put afloat all of the timber mentioned, regardless of what it would produce; that he was to have advancements upon his own scale, and final settlement and payment according to the shipping tally of said lumber firm, which was to be final; and that the contractor was not to be paid for dead culls.
    2. “Dead culls” are an unavoidable product from the saw, in sawing logs, distinguishable from higher grades produced, which higher grades, in the contract and tally hereinbefore referred to, included shipping culls and better, and mill culls, being everything above the grade of dead culls.

      8. The shipping tally included a quantity of dead culls, and it was: contended by the contractor, in an action brought by him to-obtain pay for cutting the amount of logs from which such dead culls were made, that there was evidence tending to show that the lumber called “dead culls” in the shipping tally included some lumber that, according to the grading of other dealers, would be included in the “mill culls.” And it is ¿.eld that the contract made the shipping tally of said lumber firm final; that it was not the custom of the trade as to grading, but the grading of said lumber firm at the time of shipment, that was to govern; and that the plaintiff cannot repudiate that, because dissatisfied with the grading, and ask for some other scale.
    4, Plaintiff sought to recover upon the quantum meruit for putting into the lake in which-the logs were to be delivered a quantity of logs which had been marked in the woods as unfit to saw. And it is held that, inasmuch as the contract required the plaintiff to put all logs into the lake, and gave the defendant the right to require it, no reason for complaint is discovered; that the fact that the logs in question were not tallied in the woods is immaterial; that the tally at the mill, at the time of shipment, was relied on to determine the amount of lumber produced from the logs, and presumably included all that were put into the lake and sawed.
    5. Plaintiff contended that, because the defendant realized something from the sale of the dead culls, they were merchantable, and that it was unjust to deny him payment for the same. And it is held that, under the- contract, payment was to -be made according to a certain tally; that all that the logs produced was defendant’s; that, if he could get anything for the dead culls, the plaintiff was not thereby injured, and it was a matter of no concern to him.
    Error to Kent. (Grove, J.)
    Argued November 20, 1894.
    Decided December 18, 1894.

      Assumpsit. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      Maher é Salsbury, for appellant.

      Fallass & Swarthout, for defendant.
   Hooker, J.

The plaintiff brought an action, as assignee .'for collection, upon a contract for cutting logs. The following is that portion of the contract necessary to an '•understanding of the questions involved in the case:

“2. The said Williams agrees to cut all the pine and hemlock timber on section 35 in township 16 north, of range 13 west, in Newaygo county, Michigan, commencing •on the north tier of forties, and cut clean as far as he goes, and thereafter to cut from said premises in such places as he and the said Martin shall agree, and, in case of their failure to agree, then from such places as Morton, Lewis & Co. from time to time direct. And the said Williams also agrees that, in taking said timber from the tree, he will cut everything which is suitable to work up into shingles or lumber, and that he will cut everything clean as he proceeds with such cutting, and that he will cut the trees down as low, and the logs into such lengths, as he shall from time to time be directed to do by the said Martin, and that he will cut such of said timber into logs for lumber as he shall be directed to by said Martin, and the balance of the pine timber he will cut into shingle logs, and that he will deliver all of said timber so cut ■afloat in the lake on section 27 aforesaid, and that he will deliver the same in said lake, afloat, with a sufficient ■dispatch to keep the sawmill running to its full capacity ■during the sawing season of each and every year until said job is fully completed, and that he will cut and deliver, ■afloat in said lake, the shingle logs as fast as he shall ■come to them in the cutting of said timber.

“B. Said Williams also agrees that he will furnish at his OAvn expense a scaler, to scale said lumber logs, — the scaler to be agreed upon between the parties hereto, — and that he will have said, scaler furnish to said Martin the scale sheets each and every week.

fCé. The said Martin, in consideration of the premises, agrees that he will pay to said Williams the sum of $2 per thousand for the lumber logs, according to said log ■scale, at the end of each and every 30 days. Said scale is to include mill culls, but not dead culls, and said Williams is to be paid for the same the same he is for other lumber, and that upon the final settlement the shipping tally of Morton, Lewis & Co. shall be final as to the number of thousand feet of said lumber, and the final settlement shall be made according to said shipping tally.”

The shingle logs were to be paid for under a portion of the contract not given here. Morton & Lewis’ shipping tally included 773,320 feet of dead culls, and the action is brought so obtain pay for cutting the amount of logs from which they were made.

Our understanding of dead culls is that they are an unavoidable product from the saw, in sawing logs, distinguishable from higher grades produced, which higher grades, in this contract and tally, included shipping culls and better, and mill culls, being everything above the grade of dead culls. It was contended by counsel for plaintiff that the provision for payment, contained in the ■contract, referred to all lumber that should be made from ■the lumber logs, as contradistinguished from shingle logs, and that the shipping tally of Morton & Lewis was conclusive only as to the number of thousand feet produced, and not as to the separation of the lumber of different grades. The claim was also made that Morton & Lewis graded their lumber higher than other manufacturers, and that the defendant made a statement to plaintiff’s assignor, Williams, about lumber that had not been accounted for, to the effect that something like 800,000 feet had been •shipped out of the yard as No. 2 mill culls, and that at the time of making the contract he had assured Williams that dead culls contain no good lumber, but are worthless lumber. Upon this, it was claimed that the jury should have been allowed to construe the contract. In our opinion, the contract was free from any ambiguity, and it was for the court to instruct the jury as to its meaning. We •concur with the circuit judge in the opinion that plaintiff’s .assignor was to cut and- put afloat all of the timber mentioned, regardless of what it would produce; that he was ■•to have advancements upon his own scale, and final settlement and payment according to the shipping tally of Morton & Lewis, which was to be final, and that he was not to be paid for dead culls. The scale to be made in the woods was to include mill culls, but not dead mills, and he was to be paid for the same the same as for other lumber. It does not require the citation of authorities to show that the talk between the parties was merged in the instrument.

It is next contended -that there was evidence tending to show that the lumber called “dead culls” in the shipping tally included some lumber that, according to the grading of other dealers, would be included in the mill culls. This is based on the testimony of Sproat, who said that Morton & Lewis’ grade was about two points better than any other mill he ever saw, in their grade. The contract of the parties made the shipping tally of Morton & Lewis final. It was not the custom of the trade as to grading, but the grading of Morton & Lewis at the time of shipment. The plaintiff cannot repudiate that, because dissatisfied with the grading, and ask for some other scale.

A claim is made that "Williams did a quantity of work not contemplated by the contract, and that plaintiff should be allowed to recover for that upon the quantum, meruit. Williams testified that, in scaling the logs in the woods, some of them were marked as unfit to saw. These were culled as not being “one-third good.” He stated that some of these (it is not shown how many) had been skidded before being scaled. Afterwards these logs, which he says aggregated 600,000 feet, were put into the lake, upon orders sometimes from the defendant, and sometimes from Morton & Lewis. Inasmuch as the contract required "Williams to put all logs into the lake, and gave the defendant the right to require it, we discover no reason for complaint. The cancellation was made by Williams’ scaler, upon the basis mentioned. There is no evidence that the defendant or Morton & Lewis had anything to do with the cancellation, or requested that they be drawn from the skidway. It was Williams* duty to put them in the lake according to the contract. The fact that they were not tallied in the woods is immaterial. The tally at the mill, at the time of shipment, was relied on to determine the amount of lumber produced from the logs, and presumably included all that were put into the lake and sawed.

Prominence is given to the fact that the defendant realized something from the dead culls. Upon it is predicated the argument that dead culls were merchantable, and that it was unjust to deny Williams payment for the ‘same. The answer is obvious. The defendant made a contract for cutting logs, payment to be made according to a certain tally. Unquestionably, - all that the logs produced was his. If he could get anything for the slabs or bark, sawdust, or dead culls, it did not injure Williams, and was a matter of no concern to him.

The judgment must be affirmed.

The other Justices concurred.


author: Long, J

text:
    Nelson A. Pettyplace v. The Groton Bridge & Manufacturing Company.

      Conditional sale — Fraud—Estoppel—Evidence.
    1. A copy of a contract in the form- of an order for the purchase of an engine and separator, in which the vendor stipulated for the retention of title until the purchase price should be paid, was left with the purchasers. Upon the delivery of the property, four notes were given for the purchase price, in each of which it was stated that the express conditions of the transfer of the possession of the property were such that the title did not pass from the vendor until the note should be paid in full. The fourth note was secured by a real-estate mortgage' executed by one of the purchasers, and in the condition for payment reference was had to a “title-clause note” of even date, executed by the mortgagor to the mortgagee as collateral security. With this knowledge of the contents of the note and mortgage the mortgagor signed the securities, and, in company with one of his co-vendees, took possession of the engine and separator, and used the same for two years, when he sold his one-third interest therein. In a suit by the purchaser of said interest against the vendor, who had seized the property, to recover the value of said interest, the plaintiff, who claimed to have purchased without knowledge or notice of the defendant’s rights, sought to show that the mortgagor was induced to sign the contract by fraud, in that, before signing the same, the agent of the vendor read it over to him, as he did not have his glasses with him, and could not read without them, and that the agent did not read the printed stipulation as to title. And it is held that it cannot be contended, under the facts stated, that the mortgagor did not know of this stipulation.
    2. The contract described the vendor as. the party of the first part, and the three vendees as the party of the second part, and stated that the party of the first part, in consideration of the payments and agreements thereinafter contained, agreed to sell to the party of the second part the engine and separator for a price named, payable in four negotiable notes. Of the notes given in- accordance with the contract, the first was signed by the three vendees, the second and third by two of the vendees, and the fourth by the third vendee, who secured the same by a real-estate mortgage. It was further provided in the contract that the vendees were to pay the freight. And it is held that the contract is not ambiguous, and that the contention of the plaintiff that it conveyed separate interests in the property, and that he was entitled to show what the arrangement and agreement was with each vendee, is untenable.
    S. A sale of personal property upon condition that the title shall remain in the vendor until the purchase price is paid does not become absolute by reason of the acceptance by the vendor of additional security by way of the indorsement of one of the purchase-price notes and the securing of another note by a real-estate mortgage.

    JSrror to Saginaw. (McKnight, J.)
    Argued November 22, 1894.
    Decided December 18, 1894.

      Trover. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      Humphrey & Grant, for appellant.

      Lyon é Hadsall, for defendant.

       See note at the end of the opinion.

   Long, J

This action was brought to recover the value of a one-third interest in an engine and threshing machine. Defendant had verdict- and judgment under the direction of the court.

It appears that in July, 1890, B. R. Cushman, William N. Cushman, and A. R. Dodge entered into a contract in writing with the defendant for the purchase of the engine and thresher for the price of $1,550. To secure the payment of the purchase price four notes were to be given. The property was delivered in August, and the notes given. The first was for $387.50, and was signed by all the parties; the second was signed by the two Cushmans and by Jared A. Cushman as surety; the third by the two Cushmans; and the fourth by Mr. Dodge alone, and to secure the payment of which he gave a real-estate mortgage, signed by himself and wife. Each of the last three notes was equal in amount to the first. The contract contained a printed stipulation as to the material and workmanship of the machine, and in which it was recited:

“The title, ownership, and right of possession shall remain in the party of the first part until the price above' named, including notes, is fully paid.”

The contract was signed by the two Cushmans and Dodge. The first note was fully paid, and the second one also, all but $18.66'. Nothing was paid on the third, and the fourth was not yet due when the machine was taken by defendant. The interest of one of the Cushmans and of Dodge in the machine was transferred to the plaintiff, who took the transfer from Dodge without notice of the rights of defendant under the contract. Defendant took the property into possession, claiming that right under the contract, by reason of failure of the payment of the third note. The real-estate mortgage given by Dodge and wife has been foreclosed, or is in process of foreclosure.

It was claimed on the trial by plaintiff:

1. That the contract was a sale to each of the Cushmans and Dodge of a on'e-third interest, and not a sale of the whole to them jointly, and that each is responsible only for the payment of one-third of the purchase price.

2. That because one note was indorsed by Jared A. Cushman, and one note secured by Dodge by a real-estate mortgage, the sale was a completed one, and the company could not insist upon the subsequent provision in the contract which recited that it retained title to the property; that the recitation of the times and terms of payment are inconsistent with the provision as to the title remaining in the defendant company, and, as the times and terms of payment were written in, while the stipulation as to title is a part of the printed form, the former must control.

3. That Mr. Dodge was induced to sign the contract by fraud, in that, before the contract was signed, the agent of the company read it over to him, as he did not have his glasses with him, and could not read without them, and that the agent did not read this printed stipulation as to title.

Under this last claim the plaintiff sought, to show the alleged fraud; but the evidence was excluded, and, we think, properly. It appeared that the contract was in the form of an order for the machine. A copy was left with the Cushmans and Dodge, and when the machine was delivered the notes and mortgage were given. The notes contained the same stipulation as to title as contained in the contract, and the mortgage given by Dodge referred to this clause. The note and mortgage signed by Dodge were read by him, and he was fully apprised of the stipulation as to title. Knowing the contents of these instruments, he signed them, took the machine into possession, and used it for two years, and finally sold his interest. It cannot be contended, under such circumstances, that he did not know of this stipulation.

The plaintiff, under his claim that the contract conveyed separate interests, sought to show what the arrangement and agreement was. This was based upon the claim that the order or contract of purchase was ambiguous and needed explanation. The court held that no ambiguity existed, and, we think, properly. In the case of Larkin v. Butterfield, 29 Mich. 254, it was expressly stipulated in the contract that each of the sai$ first parties to be held personally responsible for one-fourth of the said $1,500.” This was held to be a several, and not a joint, undertaking, and that this was shown upon the face of the- contract. But it is evident that the parties to the contract in the present case did not regard the contract of purchase as conveying to them separate interests. After the purchase, they entered into a contract between themselves relative to the running of the thresher, what each was to do, and how the accounts were to be collected and the proceeds divided.

There cannot be said to have been a completed sale. It is conceded .that the title to personal property sold may be retained by the seller, and that a note may be taken for the price, and the sale'will still be,conditional; but it is claimed that, if other or collateral security be taken, then the sale becomes absolute. This is not the rule. It was held in Peninsular General Electric Light Co. v. Norris, 100 Mich. 496, that a mechanic’s lien could be enforced notwithstanding the title was held by the vendor. In Manufacturing Co. v. Smith, 40 Fed. Rep. 339, it was said:

“Instead of being inconsistent, it was merely additional security to that provided by the statute. It certainly does not establish, as matter of law, that, in thus retaining title to the machinery, complainant has waived its statutory lien upon the lot of ground or premises on which the machinery was placed.”

In Fuller v. Byrne, 102 Mich. 461, a stipulation was inserted in the contract, which provided that the property “is and shall remain the property of Estey & Camp until each and every of said amounts, and interest thereon, and any judgment rendered thereon, is paid in full.” It was claimed that the rendition of judgment for the purchase price passed the title to the property. It was held that it-did not have that effect, but that the vendor could take possession of the property under the contract.

It was held in Couse v. Tregent, 11 Mich. 65, that one in possession of personal property, of which he has made a conditional purchase, cannot, before the condition has been complied with, sell the property so as to vest the title in a bona fide purchaser. This rule has been restated in many subsequent cases, and in which it has been held that the contract need not be recorded as a chattel mortgage. The court below was clearly right in directing verdict for defendant.

The judgment must be affirmed.

McGrath, O. J., Grant and Hooker, JJ., concurred. Montgomery, J., did not sit.

       The action was originally brought to recover the value of a two-thirds interest, but at the close of the proofs plaintiff’s counsel stated that they only asked a recovery for the one-third interest purchased of Dodge, as to which they claimed that the plaintiff was an innocent purchaser for a valuable consideration, but not as to the one-third interest purchased from Cushman.

      CONDITIONAL SALE OE PERSONAL PROPERTY.
      The growing importance of the questions arising out of the sale of personal property, coupled with the retention of title by the vendor until the conditions of the contract of sale are performed, has seemed to justify the preparation and publication, in conneo tion with the foregoing opinion, of a note collating the Michigan cases bearing upon the subject.

        General Rules Applicable to the Subject.

      1. Couse v. Tregent, 11 Mich. 65, holding that the right of the owner of chattels' to sell the same conditionally is as old as the right to loan them; that the possession by the conditional purchaser is no more a means of defrauding third parties than that of the bailee of goods for hire; that, so long as the conditions are not waived and remain unperformed, the property does not vest in the purchaser; that the principal question which has engaged the attention of courts is that of a waiver, for, if the condition be waived, the property passes with delivery.
      2. Edwards v. Symons, 65 Mich. 348, 355, holding that the rule of law that permits a vendor to retain the title to goods bartered by him, and placed apparently in the exclusive possession, control, and ownership of the vendee, until the whole purchase price is paid, without notice to parties dealing with such vendee, is, at best, a harsh one, and should not be enforced except in cases where the agreement so to hold the title is positive and unambiguous.
      3. Jenks v. Colwell, 66 Mich. 420, 428, holding that in Michigan, where the validity of conditional sales of personal property is recognized, the right of the vendor to follow the property into the hands of third parties, or to sue them for its conversion, depends upon the good faith of the transaction; that where the purchase is made from the vendee in good faith, and without notice, and under circumstances in which the original vendor must have known or contemplated that the property would be sold by his vendee, and incorporated into or made a part of the freehold, his rights are subservient to those of the innocent purchaser.
      4. Thirlby v. Rainbow, 93 Mich. 164, holding that the question of the right of a vendee of personal property, the title to which was retained in the vendor until the payment of the purchase price, with the right to reduce it to possession in case of non-payment, to recover the amount paid thereon in excess of what the vendor had a right to retain, cannot be tried in a replevin suit brought by the vendor after default in payment and refusal to surrender the property.

        Illustrative Cases.

      1. Couse v. Tregent, 11 Mich. 65, where a piano was sold and delivered to the vendee upon a written agreement that the instrument should remain the property of the vendor, and subject to his direction, until paid for, when it should become the property of the vendee, who, in case of default in such payment at the time specified, should pay interest on all amounts not paid. The vendee sold the piano to a good-faith purchaser, from whose possession it was replevied by the vendor, who claimed to be the owner. And it was held that the original sale and delivery of the piano were both conditional; that the vendor could not, as between himself and the vendee, be said to have parted with the title; that the possession of the vendee was determinable at the pleasure of the vendor from the moment of delivery until payment; that by such delivery the vendor did not give to the vendee the ostensible ownership any more than the lender or hirer of chattels gives it to the person to whom he lends or hires them; that the possession of goods, although prima facie evidence of ownership, is not such proof of it as to confer any equities upon third parties against the title of the actual owner, unless fraud exists.
      2. Dunlap v. Gleason, 16 Mich. 158, where a sewing machine was delivered by the owner to a man and his wife, who agreed in the receipt given for the machine to safely keep and cai'efully use the machine, and not remove it from the county in which they resided, and at the expiration of three months return it to the owner, free of charge and unincumbered. This agreement was subject to an understanding, expressed in a proviso, that if, on or before the expiration of said three months, the husband should pay to the owner the sum of $60, the receipt should be null and void, and the owner should execute to the husband a bill of sale of the machine. And, in replevin by the owner against a purchaser of the machine from the husband and wife, it was held that the terms of the paper clearly showed that the owner of the machine did not intend to trust to the personal responsibility of the husband, or to part with his title to the machine, conditionally or otherwise, until the $60 should be paid; that he did not take from the husband an alternative promise, leaving with him a choice in performance, but required an absolute undertaking for the return .of the machine within a time limited; that the further stipulation was in the nature of a defeasance of that undertaking, dependent, not upon the husband’s agreement to pay the $60, but upon his actually paying it; that, until such payment should be made, the agreement to return the machine remained in full force, and that the owner had a right to replevy it when the husband put it out of his hands, whether the three months had expired or not.
      3. Preston v. Whitney, 23 Mich. 260, where a music dealer contracted in writing for the sale of a piano at an agreed price. The contract provided that the unpaid portion of the purchase price should be paid in installments, and that until paid the piano should remain the property of the vendor; that, in case the vendee should fail to make any payment as specified, at and from the time of such failure the vendor should be entitled to the possession of the piano, and the contract should become void. After the vendee had paid $100 of the purchase price, and the piano had been in .his possession three months, he failed to make the fifth payment, whereupon the piano was taken back by the vendor, who gave the vendee his note for $70 to cover the $100 so paid, less $30 deducted for the use of the instrument. And in a suit upon said note it was held:
      a — That the agreement was one for a conditional sale only, the property remaining in the vendor, as owner, until paid for; that it never passed to the vendee; that while it was expressly provided that, for non-payment of any one of the several installments, the vendor might take possession and said agreement to sell should become void, no provision was made for the forfeiture by the vendee, or the retention by the vendor, of any sum or any portion of the sum which might have been paid upon it before forfeiture; that, from the time of taking possession, the agreement for the sale might be treated as void, or, more properly, as terminated.
      b — That the vendor, having received $100 of the vendee’s money, paid only in consideration of the proposed purchase, and having taken back the property which constituted the consideration, and having terminated the contract upon which it was paid, had so much of the vendee’s money in his hands, for which he should account upon just and equitable principles; that he would have the right to deduct from the amount so paid a fair compensation for the use of the piano during the period it remained in the vendee’s possession (or perhaps, at his option, the interest on its price for that period), as well as for any reduction in value from injury beyond that arising from its legitimate use, and for any incidental expenses in regaining possession; but that he would have no right, under the agreement, to claim any forfeiture of all the money paid, beyond such reasonable compensation.
      4. Giddey v. Altman, 27 Mich. 206, where a piano was delivered to a firm upon their agreement to purchase the instrument, and in payment therefor to deliver to the vendor certain subscription tickets for a newspaper. The contract further provided that the vendees should repurchase, at a stated price, all the tickets which the vendor had not disposed of by a given date, he agreeing to use all reasonable exertion and diligence to sell the tickets. It was further agreed that the piano should remain the property of the vendor, and subject to his directions, and should not be moved from place to place without his written assent, until the conditions specified should be fulfilled. No penalty was imposed upon the vendees for failure to observe this latter stipulation. In case of default on the part of the vendees in any of the conditions to be by them performed, the vendor was to have the right to declare the agreement void, and take possession of the piano wherever it might be found, without legal process, and retain the payments theretofore made to apply as damages for the non-performance of the agreement. The vendees sold the piano, and it finally came into the possession of a good-faith purchaser. The vendor did not succeed in selling all of the tickets, and after tendering to the vendees those remaining unsold, which they refused to accept, he placed the same in the hands of an attorney for collection, and, without previous demand, took possession of the piano, and it was replevied by said purchaser. And it was held that the most natural and obvious construction of the agreement was that the vendees were to have possession of the piano until the sale should be declared void for their default, when the vendor would be restored to all his former rights; that no penalty was attached to the failure of the vendees to observe the stipulation as to the non-removal of the piano, etc., beyond what would follow the breach of an ordinary contract, and the vendees would therefore lose no rights in the piano, and the vendor gain none, by a violation of said stipulation; that the vendor was not entitled to the possession of the piano when he took it, unless he had previously exercised his right to declare the contract of sale terminated, of which there was no proof, unless the tender of the unsold tickets to the vendees was sufficient; that the vendor waived the tender when he subsequently delivered the tickets to the attorney for the purpose of collecting the money which they nominally represented, and he must be regarded, therefore, as still treating the agreement of sale as in force.
      5. Johnston v. Whittemore, 27 Mich. 463, where a firm of music dealers made a conditional sale of an organ, and took from the vendee a contract in which he agreed to hold in his possession the organ, and purchase the same at an agreed price, payable as stated in the contract. It was provided, further, that the organ should remain the property of the vendors, subject to their direction, and not to be moved from place to place without their written assent, until the purchase price should be paid; that, in case of default in any of said conditions, the vendors might declare the agreement void, and take possession of the organ without legal process, and the payments which might have been made might be retained to apply as damages for the non-performance of the con. tract. And in trover for the organ, which had been converted by the vendee after all of the purchase price, except $100, had been paid, it was held that the vendors could not recover, as damages, the value of the organ; that the unpaid portion of the purchase price and interest represented their entire interest in the organ at the time of the conversion; that the provision for the retention of the payments that had been made, as damages for the non-per^formance of the contract, was connected with, and intended as a I>art of, the provision for declaring the contract void and retaking the organ, and was intended to apply only to such á contingency; that the vendors did not proceed upon that ground; that what might have been the effect of said provision in case the contract had been declared void need not be decided, though it was clear that such a provision is not one which the law would enforce as for stipulated damages, as it is not based upon any idea of just •and adequate compensation,
      6. Whitney v. McConnell, 29 Mich. 12, where music dealers made an executory bargain for the sale of a piano, evidenced by a •contract containing a provision that the instrument should remain the property of the vendors until paid for, and that until paid for it should not be removed from the residence of the vendee without the written consent of the vendors. The vendee pawned the piano, and the vendors replevied it from the pawn-broker without demand. And it was held that the contract created a bailment in the vendee; that the condition against removal was not only valid, but necessary to secure the vendors from just such transactions as the one complained of; that the transfer and removal of the piano into the custody of the pawn-broker was a direct violation of the duty of the vendee as bailee, and that no demand was necessary before replevying the instrument.
      7. Knowlton v. Johnson, 37 Mich. 47, where certain waterwheels were sold to the lessees of a grist-mill with the express understanding that they were to be put into the mill and used therein, but that no property in the wheels should vest in the lessees until they were accepted and paid for. The lessees received the wheels, and, against the objection of the lessor, removed those already in the mill, and set up the new ones in their stead. The new wheels were attached to the building, and the flume was built up around them in such manner as to prevent their being removed without injury to the building to the extent of from $100 to $300. The lessees, after operating the mill for a time, surrendered their lease, and the lessor leased the mill to one of their ■employés, who ran it until the lessor sold the mill, without reservation, except of the old wheels, which were lying unused in the mill basement. The purchaser had no notice of any claim against or on account of the new wheels. And, in trover by the vendors for the new wheels, it was held that the plaintiffs deliberately agreed that the wheels should be converted in all outward appearance into real property, and thereby put it into the power of the lessor to make sale of the wheels as part of the mill; that he sold accordingly; that the defendant purchased; that he acted in good Jaith, and was guilty of no want of care; that, when the plaintiffs allowed the wheels to be worked into the mill, they assumed risks, and among them such a result as had occurred; and that it would be contrary to justice to allow them to save themselves by casting the consequences upon the defendant.
      8. Smith v. Lozo, 42 Mich. 6, where a sewing machine was-rented to a proposed purchaser at a specified rental, of which $35 was paid down, and of the remainder $5 was to be paid on the first day of each succeeding month until the sum of $85 should be paid. The agreement contained the usual provisions as to forfeiture in case of non-payment of rept or of a sale or attempted sale of the machine, and closed with a stipulation that, if the lessee desired to purchase the machine, she should have the privilege of doing so at any time during the continuance of the renting by paying to the lessor the $85, in which case all sums-paid for rent should be deducted from said sum, but that such privilege to purchase should in no way interfere with the right of the lessor to control the machine, all property remaining in the-lessor the same as though the privilege of purchase had not been added to the agreement for renting, until the $85 should be paid. And it was held that the title to the machine continued in the-lessor, and that in point of law it was entitled to dispossess the lessee in case of her default.
      9. Winchester v. King, 46 Mich. 102, holding that the mortgaging by a vendee of goods furnished him under a contract retaining the title in the vendor until the goods are paid for is an assumption of ownership on the part of the vendee wholly inconsistent with the title claimed by the vendor, and such a termination of the contract of bailment as entitles the vendor to the possession of the goods.
      10. Ingersoll v. Barnes, 47 Mich. 104, where a steam engine was-sold under a written agreement which provided that, after the making of a cash payment thereon, the vendee should be allowed to take the engine and put it in the flouring mill he was then building, subject to the further provision that the engine, although put into said mill and used there or elsewhere, should be and remain the property of the vendors until fully paid for. The engine was placed in the mill, and the vendee, after running the mill for a time, conveyed the mill property by a warranty deed to a third party. The vendors sued the purchaser in trover for the engine,, and recovered a judgment for its value. And it was held:
      a — That, it not appearing that either of the vendors had any knowledge of the manner in which the engine was attached to the realty previous to the sale to the defendant of the mill property, the case stood in that respect as the ordinary one of a sale of an engine to be put up and used as the motive power in a, mill.

        b — That as the evidence tended to show that the defendant had sufficient knowledge of the plaintiffs’ claim to have put him upon his guard, and put upon him the duty of making inquiry, acting as a prudent, cautious man should do under the circumstances, the case was not governed by Knowlton v. Johnson, 37 Mich. 47, and the judgment was affirmed.
      11. Marquette Manufacturing Co. v. Jeffery, 49 Mich. 283 where certain steam and wood-working machinery was delivered to proposed purchasers under an agreement retaining the title in the vendor until paid for, with the right to resume possession of' the property, wherever found, at any time, for the breach of the contract. The contract further provided that, when all of its terms and conditions should be performed, the vendor should give to the vendees a bill of sale and guarantee the title. Before the machinery was paid Tor, and after it had been fastened and permanently bolted down, and the boiler walled up in a building owned by the vendees and standing on leased land, the entire property was levied upon by a judgment creditor of the vendees, whereupon the vendor replevied the machinery from the sheriff; And, in affirming a judgment in favor of the plaintiff, it was held that no language could have been used which would have expressed more plainly the intention of the parties to pass no title, and that there was no title in the vendees which could authorize the levy.
      12. Adams v. Wood, 51 Mich. 411, where a vendor replevied a horse which he had sold and delivered to the defendant, retaining the title until the animal should be paid for. The purchase price, except $10, which was not due at time of the seizure, had been paid. No demand for the horse or the $10 was made. The defendant had never sought to change or in any manner incumber the title to the property, or do any other act in violation of his contract of purchase. Upon these facts the circuit judge found that the suit was prematurely brought, and rendered a judgment in favor of the defendant for a return of the property and $10 damages for its detention, with costs, and in favor of the plaintiff for a special interest in the horse to the amount of $10. And in affirming the judgment it was held:
      a — That the defendant came lawfully into the possession of the property; that, under the facts found, the question of the waiver of necessity for a demand became immaterial, as the taking under the writ appeared to have been withoirt right.
      b — That the judgment for the return of the property did no more than transfer the possession to the party from whom it had been wrongfully taken; that it did not impair the plaintiff’s rights under his contract of sale, upon which there was no contest; that it gave him the amount of his interest therein, and with this he fihould have been content.
      13. Edwards v. Symons, 65 Mich. 348, where one of two copartners agreed with the other (a corporation) to purchase its interest in the partnership at an agreed price, payable in installments, with interest on deferred payments. The vendor was to retain its title to the property until full performance by the vendee of the agreement, as its interest in the partnership might from time to time appear, it being agreed that the interest of the vendee should increase, and that of the vendor decrease, in proportion to the payments made by the vendee in accordance with the terms of the contract of sale, and that, so long as the vendee was not in default, all of the profits of the business should belong to him, the interest received upon the deferred payments being accepted by the vendor in lieu of its share of said profits. Pursuant to the terms of the agreement the vendee assumed, and up to the time of the making by him of an assignment for the benefit of creditors, which occurred some six months later, retained, the sole possession and management of the business, which was carried on in the partnership name, during which time he purchased goods and contracted debts to quite an amount. The assignee for the creditors took possession of the property, and converted it into money. And, in an action of assumpsit brought by the assignee of the contract against the assignee for creditors, it was held:
      a — That the title of the vendor to the partnership property could not be extended to goods or property purchased by the vendee after the date of the contract of purchase, which did not, by express terms, cover after-acquired goods; that the filing of said contract in the office of the clerk of the city in which the parties resided could not enlarge the scope of the agreement as to the title to the property, nor could it be considered as creating a lien or mortgage upon goods bought after its date.
      b — That the plaintiff was entitled to a judgment for the amount of the goods on hand at the time of the assignment to the defendant that were a part of the stock when the contract of sale was made, and to such portion of the collections made by the defendant as assignee as came from the proceeds of the sale of such goods or property as formed a portion of the stock on hand at the date of said contract.
      14. Jenks v. Colwell, 66 Mich. 420, where a millwright contracted to construct a mill building on land owned by the contractees, and placed therein a steam boiler and machinery. He then entered into a contract with the manufacturers for the purchase from them of the boiler and machinery at a specified price, $500 of which was to be paid down, and the balance in 20 days, with interest, upon the making of which latter payment the manufacturers were to execute to him a bill of Sale of the property. The contract further provided that the title to the boiler and machinery should not pass out of the manufacturers until the purchase price should be fully paid; that the same should not become a fixture by being placed in any mill or other building, or by being annexed in any manner to the realty; and that, upon the violation by the vendee of any of the conditions of the contract, the manufacturers might take possession of the property, and that any money already paid thereon should be considered as having been paid for the use of the same. At the time of the making of the contract, the manufacturers knew what use the vendee proposed to make of the boiler and machinery, and were informed by him of his contract in regard thereto. The vendee did not make the $500 payment himself, and the boiler and machinery were shipped to him upon the telegraphic guaranty of the contractees to make said payment for him. The vendee, claiming to have completed his contract, gave the manufacturers an order on the contractees for the balance their due. The contractees sent to the manufacturers a draft for said amount, less $800, which they claimed to have expended in completing the mill according to contract, leaving a balance due the manufacturers of $597.44. The contractees had no notice of any claim by the manufacturers upon the boiler and machinery until one month after their shipment, at which time they received a letter from them stating the balance due and asking for payment of the same. And, in an action of trover by the manufacturers against the contractees for their claimed interest in the boiler and machinery, it was held that a verdict should have been directed in favor of the defendants, for the reason that the plaintiffs understood, when they sold the property, that it was purchased by the vendee for the purpose of attaching it to tho realty of the defendants under his contract with them to do so; that with that knowledge they obtained $500 of the defendant’s money, and guaranteed the shipment of the machinery for the purpose stated, without notice to or knowledge on the part of the defendants that they still claimed the title to the boiler and machinery.
      15. Hood v. Olin, 68 Mich. 165, holding that a purchaser of property on condition that it is not to be his until paid for cannot mortgage it in hostility to the rights of the vendor. (See Wiggins v. Snow, 89 Mich. 476, 478.)
      16. Sewing Machine Co. v. Bothane, 70 Mich. 443, holding that a vendee in the lawful possession of a sewing machine under a contract retaining title in the vendor until paid for, and who has nearly paid for the same, cannot be dispossessed by replevin without a prior demand; that in such a case, on waiving a return, the value of the defendant’s interest in the machine should be assessed at the purchase price, less the balance due, with interest from the time the machine was replevied, it appearing that it had lost-nothing in value.
      17. Begole v. Stone, 72 Mich. 71, where the bona fide holder of a chattel mortgage replevied the property from a third party, who claimed to have sold it to the mortgagor conditionally, and to have retained the title until the property was paid for. And it was held that the rights of the defendant under such sale should not have been submitted to the jury apart from the circumstances tending to show, as claimed by the plaintiff, that by his conduct-the defendant had waived or abandoned his rights to the property.
      18. Button v. Trader, 75 Mich. 295, where one of two owners of a stock of meats and a meat-market outfit sold his half interest-to the other owner upon condition that the title should remain in him until the purchase price should be paid. The purchaser sold the entire property to third parties, who paid a portion of the purchase price with their negotiable note, after which the part owner who had sold his interest to their vendor sued him for the-purchase price, and recovered a judgment for the full amount due. And, in a suit upon the note by an alleged bona fide purchaser, it was held that by suing and recovering said judgment said part-owner elected to confirm the sale of the property to the makers-of the note; that he could not thereafter repudiate such election, and maintain a claim to the property; that therefore it made no-difference whether the plaintiff had notice before he bought the-note of the claim of such part owner or not; and that a verdict should have been directed for the full amount of ■ the note and interest.
      19. Kendrick v. Beard, 81 Mich. 182, holding that the following clause in a note given in part payment for a span of horses, immediately following the statement of the sum agreed to be paid, namely, “being balance due on one span of horses bought of him [the payee], said horses to be holden to him as security for payment of this note,” is not so certain and unambiguous as to import a mortgage, and not a conditional sale, and parol evidence that the title to the team was not to pass until the horses were paid for is admissible as explanatory of the doubtful language.
      20. Hovey v. Gow, 81 Mich. 314, where a contract for the sale of' lumber provided that it should belong to the vendors until shipped, in the spring of 1889, and when so shipped should be free from any insurance charges or taxes that might be assessed against it. A portion of the lumber was seized to satisfy taxes assessed for 1888 against the vendees, and was replevied by the vendors. And it was held that the contract is unambiguous, and that under it. the vendors remained the owners of the lumber until it was shipped.
      21. Brewery Co. v. Merritt, 82 Mich. 198, holding that a contract by which a brewing company agrees to ship to a firm all beer ordered by them at an agreed price per barrel, the title to remain in the company until the beer is sold, and by which the firm agree to take and pay for the beer on the conditions named, is valid as to creditors of the firm, and creates a mere agency, under which the firm are to take and sell the beer, and pay over from the proceeds the agreed price per barrel.
      22. Pratt v. Burhans, 84 Mich. 487, holding that a contract by which the title to goods is to remain in the owner until they are paid for, or sold in the due course of trade, by the person to whom they are delivered, is valid, and such purchasers take a good title, and those who do not purchase in the due course of trade cannot rely upon the bare possession of their vendor as conclusive evidence of title.
      28. Tufts v. D’Arcambal, 85 Mich. 185, where a contract for the sale of certain soda-water apparatus provided for the retention of title by the vendor until the property should be paid for, and that, in case of the non-payment of either of the purchase-price notes at maturity, the vendor might take possession of the property, but did not provide that such act should operate as a rescission of the contract, or as a forfeiture of the payments made thereon. On default being made in such payments the vendor replevied the property. And it was held that such action did not entitle the vendee to rescind the contract, or to recover the amount paid thereon, or to a delivery of the unpaid notes, nor did it give him any lien upon the property for the amount of such payments; that plaintiff was entitled to judgment, and to his damages for the detention of the property; and that upon the payment of the amount due the vendee would' have a right to a return of the property.
      24. Wiggins v. Snow, 89 Mich. 476, holding that a contract of sale which provides that the title to the property shall remain in the vendor until the purchase price is fully paid, but which contains no provision authorizing the vendor to retake possession in case of default, clearly implies that the right of the vendee to possession is dependent upon his making such payment as provided in the contract, and that, in the event of default and demand, the vendor may maintain replevin for the property.
      25. Gill v. De Armant, 90 Mich. 425, where the owner agreed to sell an undivided half interest in a saw and shingle mill, and it was stipulated in the contract that a failure to pay the purchase price should avoid the contract. The purchaser went into possession with the vendor, and then sold her interest in the properfcy, and her vendee purchased the remaining one-half interest upon a contract which reserved the title to the vendor until the purchase price should be paid, and went into sole possession. After the partial destruction of the property by fire, the second vendee sold a portion of the machinery to certain mill-owners, and they, without the consent of the original vendor, affixed it to their mill. The original vendor replevied said machinery, and on the trial offered the two agreements in evidence, and they were received, in connection with proof that a considerable sum was due and unpaid upon each when the suit was commenced. And, in affirming a judgment in plaintiff’s favor, it was held that the title to all of the mill property remained in the original vendor at the time the mill-owners purchased the machinery, and, in the absence of his consent, they could not attach it to their mill so as to make it a part of the realty.
      36. Lansing Iron & Engine Works v. Walker, 91 Mich. 409, where the owner of an undivided interest in a farm purchased a portable saw-mill. The vendor retained the title and right of possession until the mill should be paid for, but gave the vendee permission to take and use the mill in the township where his farm was situated, and in adjacent townships, so long as he took reasonable care of it, and was not in default in any of the payments provided for in the contract.' The vendee made the first payment, and set up the mill on his farm, the boiler being bricked in and arched up, and the engine set upon brickwork and bolted to the foundation, and both being roofed over, while the saw-mill and carriage were uncovered. He afterwards conveyed the farm by quitclaim deed. And in an action of trover, brought by the vendor against the grantee on refusal to pay the remainder of the purchase price, a judgment was entered upon a verdict directed in his favor, which judgment is affirmed.
      37. Powell v. Eckler, 96 Mich. 538, holding that an agreement for the leasing of a piano at an agreed monthly rental, and for its sale to the lessee at the expiration of the term of the lease upon payment to the lessor of a specified sum, merely gives the lessee the right to the use of the instrument on payment of the rent, with an option to purchase it on the terms stated.
      38. Fuller v. Byrne, 102 Mich. 461, where a contract for the sale of a piano provided that the instrument should remain the property of the vendor until the purchase price and any judgment rendered thereon should be paid in full. And it was held that the vendor had the right to obtain such judgment, and the title to the piano would not pass until the judgment was paid.


text:
    Oscar C. Lungerhausen and Byron R. Erskine v. Charles D. Crittenden.

      Attorney and client — Services—Contract—Evidence.
    1. An agreement by a client to pay certain of his attorneys as much for their services to be rendered in a given pase as he paid either of two other attorneys, who were connected with them in the case, is not void for want of mutuality and certainty.
    2. Where the ground of an objection to the admission of testimony is not stated, a ruling admitting the testimony will not be reviewed.
    3. The court is warranted in excluding testimony which would be valuable only when supported by an agreement alleged to have been made between the parties, until the proper evidence of the agreement is introduced.
    4. In a suit by an attorney at law to recover for his professional services, it is competent for him to prove his character, reputation, standing, and known ability as a lawyer, as bearing upon the value of said services.
    Error to Macomb. (Moore, J., presiding.)
    Submitted on briefs November 21, 1894.
    Decided December 18, 1894.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Black é Dodge, for appellant.

      James G. Tucker, for plaintiffs.
   Hooker, J.

The plaintiffs are practicing attorneys, and brought an action for services rendered to the defendant in certain litigation wherein he was a party, and for some minor services about which no controversy appears now to exist.

The litigation referred to is for convenience called the e< Gallup Case.” The plaintiffs'claimed that the defendant promised to pay them well for their services in the matter, • — to pay them as much as he paid to Judge Baldwin or Mr. Chadwick, who were connected with the case; and the court instructed the jury that a verdict might be rendered upon that theory, if the facts were so found, and,1 if not, recovery might be had for the value of the services actually- rendered, if the defense was not sustained. Error is assigned upon the submission of the first of these propositions to the jury, it being claimed that such contract would be invalid if made. The point made is that such contract would be void for want of mutuality and certainty as to the amount of compensation,, it being urged 'that the amount, as well as the value of the services of Baldwin and Chadwick, were unknown, and that they depended upon uncertainties. There appears no such difficulty. In the law, that is certain which is susceptible of being made certain. If Baldwin or Chadwick should render any services, their compensation would fix the price to be paid to the plaintiffs. There seems to be no claim that they did nothing. On the contrary, this measure of the plaintiffs’ compensation seems to be greater than the defendant is disposed to pay. But counsel argue that the contract was void or valid when .made, and, as it might have happened that nothing was earned by either of these persons, there was a want of certainty in the contract. We need not trouble ourselves with the question of plaintiffs’ rights or remedies in case of the failure of these gentlemen to render services in the case. The plaintiffs performed the service promised, and there was no dispute over the fact that the others did also. There was no legal uncertainty in this contract at its inception. Whatever of uncertainty existed was the uncertainty that might arise from or grow out of a contingency, which might have resulted in a failure of consideration, but did not. See Kent Furniture Manfg. Co. v. Ransom, 46 Mich. 416.

A number of questions were raised upon the. introduction of evidence, some of which may be passed with the remark that, when the ground of the objection to the admission of evidence is not stated, this Court will not review the question where the objection is overruled. Achey v. Hull, 7 Mich. 423; Gilbert v. Kennedy, 22 Id. 117; Stevens v. Hope, 52 Id. 66; Merkle v. Township of Bennington, 68 Id. 133; Macomb v. Wilkinson, 83 Id. 494.

Another may be disposed of- upon the principle that •leading questions are within the discretion of the trial -court.

Upon the part of the defense, it was claimed that the services rendered in the Gallup case by the plaintiffs were rendered under an arrangement that Erskine should change work with Mr. Chadwick, who had charge of this case, •Chadwick to argue a case called the Tax Case,” which Erskine is said to have had charge of for the. plaintiff. It was further claimed that Erskine had guaranteed victory for the plaintiff in the tax case, but met with defeat. The defendant’s bill of particulars comprises items of $132.01 for the tax sought to be recovered, and $161.65 for costs and disbursements in that case. In their brief counsel say:

The court steadily refused to allow evidence in support ■of the first of these two claims.”

We do not discover that they press the latter upon this hearing, though they say that the defendant’s counsel, in ■opening his case, insisted that the work of Chadwick in the tax case was to be set off against that of Erskine in the Gallup case, and that the court then stated that such a claim was.not material, though it was recognized when too late to be of use to the defendant.

The eighth assignment of error is the first which is said to involve this question. On cross-examination Erskine was asked: “What was the result of that tax suit?” The same. question was asked the defendant (assignment 10). To the first of these the court suggested that it would be time to admit the testimony when some evidence of the guaranty was introduced. The court also excluded evidence of the amount expended in the tax case, and as to what court it was tried in; also certain letters from Ohadwick in relation to the tax case. It should be stated that the plaintiffs’’claim - did not involve services in the tax case. It came into the controversy under the defendant’s bill of particulars of set-off, and the claim that plaintiffs’ services in the Gallup case were rendered under a special agreement that they should be turned with Chadwick. Our attention is not called to any evidence tending to show an agreement to guarantee the result of the tax case, and we are not cited to any testimony tending to show that an agreement to change work with Ohadwick was made. The defendant testified upon the latter subject, saying, in substance, that Erskine wanted him to get Chadwick in the tax case, and that he went to see Chadwick, who consented to argue the case, and said that—

“ f Mr. Erskine and you must look up certain testimony for me in the Gallup case; ’ and that was the arrangement between them. c And now,’ Mr. Chadwick says, ‘ I want you and Erskine to go to the register’s office,’ ” etc.

This is the nearest he came to testifying to an agreement between Erskine and himself about the change of work. He gives more conversation with Chadwick, but that is manifestly hearsay. The testimony sought for by these questions was valueless unless it was supported by proof of the agreement, and the court was Avarranted in excluding it until the proper evidence was introduced.

Complaint is made that an answer was allowed to the question put by the plaintiffs’ counsel:

“What is Mr. Erskine’s ability as an attorney and his ability as a legal investigator?”

The question was objected to, upon the ground of incompetency, and appears to have been overruled only when counsel for the defendant stated, in answer to the court’s question, that he should take the position that the services of Erskine, who had been admitted to the bar less than two years, were of much less value than those of an older practitioner. It is a well-known fact that the character, reputation, standing, and known ability of a lawyer have much to do with his clientage, and the law recognizes them as bearing upon the value of his services. It would seem to follow that they might be proved. Phelps v. Hunt, 40 Conn. 97; Eggleston v. Boardman, 37 Mich. 14; Chamberlain v. Rodgers, 79 Id. 219; Kelley v. Richardson, 69 Id. 430.

We think also that the testimony of the witness Lowell as to the value of services was admissible.

One or two other points were made, but we find no error in them, and think it unnecessary to discuss them.

The judgment will be affirmed.

The other Justices concurred.


author: Long, J.

text:
    Margaret Ten Hopen v. Luke Taylor, Impleaded with Thomas Walker and Frank J. Lamb.
    [See 96 Mich. 236.]

      Supersedeas bond — Clerical error — Conditions.
    1. In a suit upon a supersedeas bond, in which, as declared upon, the judgment was stated at “ two hundred and twenty-five dollars,” it appeared, on offering the bond in evidence, that the word “two” was written “twn.” And it is held that this was a mere clerical error, and was properly disregarded by the court; citing King v. Merritt, 67 Mich. 194, and cases cited.
    2. A defendant, in order to secure a stay of proceedings upon a judgment rendered against him, executed a bond conditioned (as required by 3 How. Stat. § 7621c) to pay said judgment if not set aside, or (as required by How. Stat. § 8679) to prosecute his writ of error to effect, and pay and satisfy such judgment as might be rendered against him thereon. And it is held that there is no uncertainty or ambiguity in the bond; that it is substantially in compliance with the statute, and, if not in strict compliance therewith, it is a good common-law bond (Mealy v. Newton, 96 Mich. 228); that the fact of its being in the alternative cannot affect the liability of the surety, as in either event the amount is certain.
    Case made from Kent. (Adsit, J.)
    Submitted on briefs November 23, 1894.
    Decided December 18, 1894.
    Debt. Defendant Taylor assigns error.
    Affirmed.
    The facts are stated in the opinion.

      Birney Hoyt, for appellant.

      Francis A. Stace, for plaintiff.
   Long, J.

This cause was tried before the court without a jury, and the following findings of. fact and law made:

1. On May 27, 1892, plaintiff recovered judgment in the circuit court for Kent county for the sum of $225 damages and $76.50 costs, against defendant Thomas Walker.

2. On June 15, for the purpose of obtaining a stay of execution on said judgment and taking proceedings to remove the cause to the Supreme Court, defendant Walker, as principal, and Luke Taylor and Frank J. Lamb, as sureties, made and filed with the clerk of the circuit court a bond.

This bond is set out in the findings. It recites a penalty of $500. The condition of the bond is:

“Now, therefore, the condition of this obligation is such that if the said Thomas Walker shall prosecute his said writ of error to effect, and shall pay and satisfy such judgment as may be rendered against him in said court, or, if such judgment is not set aside or reversed, shall pay the judgment rendered against him in the said circuit court for the county of Kent, then this obligation shall be void; otherwise shall be and remain in full force and virtue.”

This bond was approved by the circuit judge. The court further finds as follows:

3. Said bond was typewritten, and therein, by an evident clerical error of the typewriter, ‘twn* was written instead of ftwo/ in the recital of the amount of the judgment.

4. On June 15, 1892, the day of filing such bond, on motion of said defendant Walker, the stay of proceedings before then entered for 20 days in said cause mentioned in said bond was extended, for 40 days.

5. Said judgment was removed by writ of error issued in September, 1892, to the said Supreme Court, and affirmed, with costs of $45.75.

6. The amount due on said judgment for damages and costs and interest is $383.93.

7. Said judgment has not been paid, and execution has been issued and returned wholly unsatisfied.

Judgment was entered for plaintiff for the amount found due.

The first point made against this judgment is that there is a variance between the bond declared upon and the one put in evidence, as the recitations of tbe amount of the judgment are different. The court was not in error in holding this a 'mere clerical error. It is well settled that mere clerical errors, where the meaning is evident, will be disregarded. King v. Merritt, 67 Mich. 194, 206, and cases there cited.

' It is next claimed that the bond is void because its condition is indefinite, uncertain, and ambiguous; that the condition is in the alternative, and does not provide with certainty for the payment of any judgment; and that a bond cannot be conditioned upon one statute with an alternative condition upon another statute. The bond, however, is that prescribed by 3 How. Stat. § 7621c, providing that—

“No stay of proceedings upon any verdict or judgment rendered in any circuit court in this State shall hereafter be granted or allowed, for the purpose of moving for a new trial or settling a bill of exceptions in the case in which such verdict or judgment was rendered, for a longer period than 20 days, unless the party applying for such stay, if judgment shall have been rendered against him, shall execute to the adverse party a bond with sufficient surety or sureties, to be approved by the judge of the court in which such judgment was rendered, conditioned to pay such judgment if the same is not set aside or reversed.”

And section 7621/ provides that—

“No further or other bond shall be required to stay and supersede execution upon any writ of error issued out of the Supreme Court of this State by or on behalf of the party filing the bond mentioned and required in section 1 of this act” (being section 7621c).

2 How. Stat. § 8679, provides that—

“No writ of error shall operate to stay or supersede the execution in any civil action, unless the plaintiff in error, with two sufficient sureties, or three sufficient sureties without the plaintiff in error, shall give bond to the defendant in error, with condition that the plaintiff in error shall prosecute his writ to effect, and shall pay and satisfy such judgment as shall be rendered against him thereon.”

The condition of the bond in question was written so as to cover both conditions prescribed by the above statutes. The bond was given to enable the principal to take a stay of proceedings while' prosecuting his case to the Supreme Court. The circuit judge approved the bond for the purpose for which it was given. There is no uncertainty or ambiguity in it. It is substantially in compliance with the statute. If not in strict compliance with the statute, it would be a good common-law bond. Healy v. Newton, 56 Mich. 228. That it is in the alternative cannot affect the liability of the surety. In either event the amount is certain.

Some other questions are raised, which we do not deem important to discuss.

The judgment is affirmed.

The other Justices concurred.


author: McGrath, O. J.

text:
    Aaron T. Bliss v. The Estate of Charles H. Plummer, Deceased.

      Books of account — Evidence—Estates of deceased persons — Partnership-Privity of contract.

    1. Entries made by a bookkeeper upon the books of a deceased person during his lifetime, and by his express direction, are competent as admissions against the estate.

      2. In a suit against the estate of a deceased person for the amounts of certain notes made or indorsed by the claimant, and paid by him, the entries made by the bookkeeper of the decedent upon his books, at his express direction, showed that the notes were discounted by the decedent, and the proceeds, credited to “Bills Payable;” that in the journal entries of the notes there was a memorandum “for. me to pay,” and in a separate book, on a page headed “Bills Payable,” the notes were entered, with a memorandum showing when and where .they were due. And it is held that the notes and the entries are so connected as to leave no room for doubt, and, in connection with the other proofs, are sufficient to warrant a judgment against the estate.
    3. The individual promise of one member of a firm, made after the dissolution of the partnership, to pay certain notes made by the firm for the accommodation of the promisee,' will not relieve the promisee from liability to pay the amounts of the notes to another member of the firm, who afterwards paid the notes, nor will such promise be available to the partner who paid the notes.

    Error to Saginaw. (Wilber, J.)
    Argued November 22, 1894.
    Decided December 18, 1894.
    Appeal from tbe allowance of a claim by commissioners, on claims. The estate brings error.
    Affirmed.
    The facts-are stated in the opinion.

      Weadoch & Purcell, for appellant,

      Humphrey & Grant, for claimant.

       For cases involving the admissibility of books of account as ■evidence see Seligman v. Ten Eyck Estate, 49 Mich. 104; Chipman v. Kellogg, 60 Id. 438; Countryman v. Bunker, 101 Id. 218, and note.

         See Webber v. Alderman, 102 Mich. 638.

   McGrath, O. J.

Plaintiff presents a claim against the estate of Charles H. Plummer, deceased, for moneys paid out by plaintiff to take up certain notes, which he claims were made or indorsed for the accommodation of decedent, for certain moneys paid for decedent, and also for moneys loaned decedent. Six of the notes were made by A. T. Bliss & Bro., and payable to the order of decedent; two were made by L. W. Bliss & Co., and indorsed by A. T. Bliss & Bro.; another was made by J. C. Caskey,, payable to the order of decedent, and indorsed by A. T-Bliss & Bro.; and another was made by decedent, and indorsed by claimant. All of the notes were discounted by decedent, and the avails used by him. No question is; raised as to the moneys paid out for, or loaned to* decedent.

Claimant caused to be produced decedent’s books, from which it appears that, as each note was discounted, a journal entry of the transaction was made, the amount of the note was credited to “ Bills Payable,” the bank was charged with the proceeds of the note, less the discount, and “Interest and Discount” account was charged with the amount of the discount. Accompanying each journal entry was a memorandum such as, “Used Bay Co. Sav., for me to pay,” or “my accom., and for me to pay.” For instance, A. T. Bliss & Bro., on October 27, 1890, made a note for $5,000, payable to the order of O. EL Plummer. The note was indorsed by Plummer, and discounted on that date. The journal entry of the transaction is as follows:

“Ann Arbor Savings Bank, Dr. $4,878.33
Interest and discount, 121.67
Bills payable, 1,393, Cr. $5,000
A. T. B. & Bro. paper for my accom., October 27, 4 mo.”

In a separate book, on a page headed, “Notes and Bills Payable,” the following appears:

“Date, Oct. 27. Time, 4 months. Drawers, A. T. Bliss & Bro. Favor of C. H. Plummer. No. 1,393. Due 27, 30. Amount, $5,000. March 2. Ann Arbor.”

A witness was called who had been, for the entire period covered by these transactions, in Plummer’s employ as; bookkeeper, who testified that these entries upon the books were made in each instance by the express direction of Mr. Plummer. The notes were introduced, decedent’s signatures proven, and the places of discount shown. The ■counsel for the estate concede that the entries upon decedent’s books are competent as admissions against the estate, but contend that they are not sufficient to establish a claim based upon the payment of paper which upon its face is the original obligation of the claimant. There can be no doubt but that these entries, taken in connection with the other proofs, are sufficient to warrant a judgment against the estate. Decedent seems to have been methodical' in the keeping of his accounts and books. This is not a case where the claim is sought to be established by an isolated memorandum or a doubtful entry. The notes and the entries are connected, and the transaction identified so as to leave no room for doubt. The entries were made in the regular course of business in the journal, and then, under the head of “Bills Payable,” memoranda are made as to when they matured and where payable. The decedent has certainly indicated, in terms ■that are susceptible of but one interpretation, that these •obligations were for his accommodation and for him to pay. Howard v. Patrick, 38 Mich. 805; Thatcher v. Hayes, 54 Id. 184; Chipman v. Kellogg, 60 Id. 438; Macomb v. Wilkinson, 83 Id. 486.

A question is raised as to two notes of $2,500 each, one made November 17, 1890, and the other November 20, 1890, each at three months. The journal memorandum in one case was, “ Used Bay Co. Svgs., for me to pay,” and in the other, “Used at the Home, and due there for me to pay.” The firm of A. T. Bliss & Bro. was composed of A. T. Bliss, L. W. Bliss, and L. D. Bliss. The firm dissolved November 25, 1890. A witness testified that February 19, 1891, L. ~W. Bliss told Mr. Plummer, in the presence of the witness, that these two pieces of paper were for him (L. W. Bliss) to pay. Plaintiff was not present at this interview. The conversation occurred three months after the dissolution of the firm. No claim is made that it was even intended as an admission that the firm of A. T. Bliss & Bro. were to pay this paper. Decedent’s books clearly show that the paper was originally made by A. T. Bliss & Co. for decedent’s accommodation. An agreement between Plummer and L. W. Bliss, made three months afterwards, perhaps in consideration of some transaction between them, would not relieve Plummer from his liability to claimant, or make the*promise of L. W. Bliss available to claimant. Pipp v. Reynolds, 20 Mich. 88; Hicks v. McGarry, 38 Id. 667.

We think the court was right in directing a verdict for the claimant, and the judgment is therefore affirmed. It will be certified accordingly.

Long, Grant, and Hooker, JJ., concurred. Montgomery, J., did not sit.


author: Montgomery, J.

text:
    Mary A. Tessmann v. The Supreme Commandery of the United Friends of Michigan.

      Mutual' benefit societies — Proofs of death — Evidence—Parish registers — Declarations of insured.

    1. The constitution of a benefit society provided that further proofs of death might be required if deemed necessary by the supreme commander, who might prescribe a form therefor. After proofs had been furnished, the treasurer of the society demanded further proofs, and the payment of the death benefit was resisted on the ground that such demand was not complied with. It did not appear that the supreme commander ever acted upon the subject. And it is held that the constitution only justified the society in demanding further proofs when deemed necessary by the supreme commander, and that this discretion could not be transferred by that officer or vested in another.
    2. Certificates based upon the parish registry of baptisms andi marriages kept in a foreign country, which do not purport to-be authenticated copies of such registry, but simply assert that certain facts are shown thereby, are not competent evidence of the facts so stated.
    3. Where a death-benefit certificate is made payable in the first instance to a beneficiary therein named, and no right is reserved in the member to change the beneficiary by will or otherwise, the statements of the member, made after the-issuance of the certificate, to the effect that she had misrepre. sented her age in her application, are not admissible in evidence for the purpose of defeating an action by the beneficiary - on the certificate.
    Error to Wayne. (Hosmer, J.)
    Submitted on briefs November 1, 1894.
    Decided December 18, 1894.

      Assumpsit. Defendant brings error.
    Affirmed.
    The; facts are stated in the opinion.

      Thomas Eislop, for appellant.

      William Look and H. F. Ghipman, for plaintiff.
   Montgomery, J.

This action is brought upon a relief-fund certificate issued by the defendant society to JosephineEiehstaedt, by the terms of which a sum not exceeding 81,000 is made payable, in case of death, to the plaintiff, who is the daughter of Mrs. Eiehstaedt. The plaintiff recovered a judgment for the amount named, with interest. The defenses interposed were, first, that proper proofs of' death were not furnished, the claim being that, after the-proofs were furnished, a demand for further proofs upon the subject of the birth of the deceased was made by. the-company. The second defense was that the deceased, in her application, stated her age to be -51 years, when in fact it was 58 years.

1. It is not claimed but that full proofs of death were.furnished, but the constitution contained the provision that—

“Further proof may be required if deemed necessary by the supreme commander. He may prescribe a form therefor.”

After the proofs of death were furnished, the plaintiff’s counsel received from the supreme commander a communication as follows:

“Your communication, in regard to the claim of your client on policy in the United Friends of Michigan, has been referred to C. Uelsmann, 138 Randolph street, your city, supreme treasurer of our order.

“Respectfully yours,

“"W. H. Andrews, Supreme Commander.”

Uelsmann testified that he demanded further proofs of the plaintiff, but it does not appear that the supreme commander, who was the only person vested with the power to demand further proofs of death after proofs which would otherwise be sufficient in law had been furnished, ever personally acted upon the subject, and the constitution only justified defendant in demanding further proof when deemed necessary by the supreme commander. This discretion is one which, under the laws of the order, so far as appears, could not be transferred by the supreme commander or vested in another.

2. There is no doubt that the circuit judge correctly submitted to the jury the question of fact as to whether the age of Mrs. Eichstaedt was correctly stated in the application. But it is insisted that error was committed in excluding certain testimony offered by the defendant, bearing upon this question. The defendant offered in evidence a certificate of baptism of the person claimed to have been Mrs. Eichstaedt, and also a certificate of baptism of a daughter claimed to have been born to her in 1860, and a certificate of marriage between Julius Alexander Eichstaedt and one Josephine Kaczor. The first of these certificates was in the following form:

“ Upon the basis of the registry of baptisms at this place, it is certified that Catharina, married to Kaczor, born Wolszczon, during her marriage with the peasant Christian Kaczor, at Kl. Starsin, in the district of Putzig, West Prussia, on the 25th day of February, 1831, gave birth to a daughter, who, in holy baptism on the 10th of March of the same year, received the name of Josephine.

“ Gr. Starsin, the 5th of July, 1892.

“The Catholic Parish,

“Kyczynski, Priest.”

The other certificates were in material respects the same, being in form an assertion or certificate that a certain fact was shown by the register of the parish. Attached to these certificates was a certificate of the consular agent to the genuineness of the signature of the priest.

That the originals of these parish registers were admissible, or that the actual contents of the registers, when duly proved by an authenticated copy, might be received, is, we think, established by Hunt v. Order of Chosen Friends, 64 Mich. 671. But we think the circuit judge ruled correctly in excluding the certificates here offered, upon the ground stated by him, which was:

“Because the papers that were offered were not themselves either sworn or certified copies of the entries in the books, but simply, so far as I can judge of their contents on the translation which was offered, certificates which were based upon some entries in books, but not copies of the entries themselves.”

See Owen v. Boyle, 15 Me. 147; 1 Greenl. Ev. §§ 484, 485.

Defendant’s counsel rely upon the case of Hutchins v. Kimmell, 31 Mich. 126, in which a certificate of a resident minister that certain facts appeared in his parish register is claimed to have been treated as proof of the fact. But it is to be noted that the objections to the instrument in Hutchins v. Kimmell were:

“First, because they were not accompanied by any proof of the foreign law regulating marriages in Wurtemberg; and, second, because it is not sufficient that a ceremony was performed purporting to be a marriage, unless it is also shown that such ceremony was recognized by, and in accordance with, the law of the country where it took place.”

Mr. Justice Cooley was very careful to indicate that the Court was considering only these objections to the instrument, for it is stated in the opinion:

“We take these objections as they are presented in the brief of counsel for the plaintiff in error, rather than as they were made below, because we have a right to suppose that, as thus given, they point out all the error in law supposed to have been committed in their reception, and that they have been framed with deliberation, with a view to calling our attention to the precise point which is designed as the subject of our examination. It will be perceived that no point is made upon the proof, by these certificates or otherwise, of the fact of a ceremony of marriage betioeen the parties named in the minister’s certificate, but the objections are narrowed to this: That there is no proper and legal showing of what was the law of Wurtemberg on the subject of marriage, and consequently it does not appear that the ceremony perfected a legal marriage.”

The case does not sustain the defendant's contention, and the opinion was apparently written with especial care that it should not be open to such construction.

3. The only other question which we think requires discussion is whether the statements of Mrs. Eichstaedt, made after the issuing of the policy, to the effect that she had misrepresented her age, were admissible for the purpose of defeating the action by the plaintiff. The policy in question was made payable, in the first instance, to the plaintiff. So far as the record shows, there was reserved in the member no right to change the beneficiary by will or otherwise. In such case her declaration, relating to past events, and made after the issuing of the policy, is not admissible in evidence for the purpose of defeating an action by the beneficiary. Lazensky v. Supreme Lodge Knights of Honor, 31 Fed. Rep. 592; Insurance Co. v. Burke, 12 Ins. Law J. 337; Rawls v. Insurance Co., 27 N. Y. 290; Insurance Co. v. Applegate, 7 Ohio St. 292; Insurance Co. v. Haney, 10 Kan. 525; Nibl. Mut. Ben. Soc. § 377.

We find no error in the record.

Judgment will be affirmed, with costs.

The other Justices concurred.