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    Charles B. Thompson and another v. Daniel Richards.

      Evidente. Deed, when directly in issue, how proved. A witness was allowed, after objection, to testify that he executed and delivered to the defendants a deed of certain company lands, which they accepted. Held, that, as the object of the plaintiff was to show performance of the condition, requiring such conveyance, upon which the promise of the defendants was based, the deed •was directly in issue, and should have been produced and proved in the ordinary way. It was for the Court, and not the witness, to judge whether the instrument lie called a deed was a conveyance in legal effect.

      Acceptance of instrument, when conclusive upon the party. The mere fact that the defendants, who were entitled by the condition of a contract to a legal conveyance - of lands, accepted the paper purporting to be a deed, would not constitute performance of such condition by the plaintiff. They would not be concluded from objecting to its sufficiency.

      Ch'oss-examination. A witness had stated in his direct examination that he had delivered to the defendants all of certain promissory notes, which he had agreed to deliver by the condition of his contract, the performance of which condition his testimony was intended to prove. The defendants proposed, by cross-examination, to show that he was mistaken in his statement on the direct examination, and also that he had in fact used sixty-nine of the notes, and that at the time of the agreement he had a large amount, of notes and other property covered by the agreement, which he fraudulently secreted and refused to deliver; which cross-examination the Court below refused to allow. Held, that this was a proper cross-examination: it related directly to the statement made in the direct examination.
    Had this been a proper case for recoupment, still the rejection of the proposed cross-examination would have been clearly erroneous, under the most restricted rule ever adopted, where cross-examination is allowed at all; inasmuch as it related directly to the same subject matter, and to the identical facts stated in the direct examination.
    The defendants had a right, upon any theory of the defense, on cross-examination, not only lo show that a part of the property had not been delivered, but that there had been an entire failure to deliver any part of it. And they had a right to draw out any thing which would tend to contradict, weaken or modify the evidence given by the witness on his direct examination, and to test his credibility.

      Recoupment, when appropriate. This was not a caso for recoupment. The plaintiff declared upon a special contract, and not upon an implied contract, to pay for the property, which was delivered to and appropriated by the defendants. He was bound to show performance, on his part, of the condition in the contract on which the promise of the defendants was based, or he could not recover at all. — Allen v. McKibbin, 5 Mich. 449.

      Evidence in defense. The defendants had a right, not only to show such non-performance by cross-examination, but to introduce evidence for the same purpose in defense. Evidence of this kind was offered by the defense, but excluded by the Court. Held, that this was clearly erroneous.

      Judgment, when final. Contract of indemnity. A judgment against the plaintiff and one of the defendants, to which the other defendant was not a party, on indebtedness of the firm, was introduced on the part of the plaintiff, allowed in evidence, and held by the Court to be the measure of damages. Held to be error. Had the contract been one of indemnity, merely, and had the judgment been against the plaintiff ancl both defendants, it might have constituted the measure of damages; but the contract was to pay the debts of the firm, and not merely to indemnify against them. — Hall v. Nash, 10 Mich. 303; Butler v. Ladue, 12 Id. 173.

      Contract, inteipi'etationof It is the dutyofthe Court to construe a mitten contract, and to charge the jury upon any question that may arise upon it. In this case there was an agreement to sign off” by the plaintiff all the right, title, property, profits and lands of the company. Held, that this agreement, fairly interpreted with reference to the circumstances and the nature of the property, would, as to all tangible personal property, and negotiable paper, payable to bearer, be satisfied by delivery, unless written evidence of the transfer was specially requested; that as to accounts and other choses in action the contracting party should have conveyed his interest by a written assignment and delivery; and that the interest of the party in the lands of the firm could only be transferred by a deed of conveyance, duly executed, acknowledged and delivered.
    A transfer of a part of the property only would not satisfy such a condition, unless the defendants had waived a full performance, and such waiver must be the act of both defendants.

      Admissions of one defendant, effect of as against the other. The admissions of one o two defendants sued for a joint liability, are evidence against himself; but, if admissions of a like tendency by the other defendant are not proved, such admissions already introduced, should be withdrawn from the jury.

      Heard April 5th.

      Decided April 17th.

    Error to Livingston Circuit.
    This was an action of trespass on the case, based upon a special agreement.
    Upon the trial of the issue in the Court below, the counsel for the plaintiff gave in evidence the agreement sued on; such agreement being the whole claim of the plaintiff, and which, was in the words and figures following, to wit:
    “Pinckney, Dec. 1st, 1862.
    “We the undersigned do agree to pay all the indebtedness of the firm of Thompson & Richards, when D. Richards signs off all his rights and title in all property and all profits that have been made in said business, lands, &c., and for the same we have paid him twelve hundred dollars in notes of the said business in full.
    “C. B. Thompson.
    “Wi. E. Thompson.”
    Thereupon the plaintiff Richards was sworn as a witness, and testified in part as follows: “ I am the plaintiff; I lived in Pinckney previous to, and on the 1st December, 1862, and up to that date was a partner with the defendant, Wm. E. Thompson, in a manufacturing business, making fanning mills, washing machines, wheelbarrows, well curbs, and other wooden ware. On the 1st day of December, 1862, we, as a firm, were indebted to other persons. The firm name was Richards & Thompson. On that day the above agreement was executed, and I went out of the concern, and delivered over to them all the property of the firm. I also executed to them a deed of the real estate the firm owned in Pinckney. The firm also owned lands in Iowa and Indiana.” The plaintiff, by his counsel, here offered to show that he executed and delivered to the defendants a deed of the lands in Iowa and Indiana, which they accepted.
    Objected to by the defendants’ counsel. Objection overruled, and exception taken.
    Witness testified: “ I executed and delivered to the defendants a deed of the Company’s lands in Iowa and Indiana, which they accepted.” To the receiving of which testimony the defendants’ counsel objected, because it was incompetent for the plaintiff to show the performance of the condition precedent in his agreement in that manner. The Court received the testimony, and the defendants’ counsel excepted.
    The witness further testified, “that the deeds aforesaid were all the papers in writing that he signed or executed, in the performance of the condition to be performed on his part, in the agreement sued on in this cause, but that such condition was further performed by the actual delivery of the property of the late firm to the defendants.”
    Witness further testified, “ that on the day of the acknowledgment of the execution of the aforesaid deed of the Pinkney land, and the delivery to defendant of the property of the late firm, he asked the defendant, Charles B. Thompson, for a writing to show that he had fulfilled on his part; that said Thompson told him it was of no use, there was nothing more for him (witness) to do.”
    Mrs. Ellen Richards testified for the plaintiff as follows: “ I am wife of the plaintiff; was present when the deed was signed, and plaintiff asked if lie ought not to have some paper to show that he had fulfilled on his part. Defendant Charles B. Thompson said, ‘No, you have done all you agreed to do,’ there was nothing more for him to do, or to sign.”
    This was all the evidence given, showing any acceptance or satisfaction on the part of the defendants, with the performance of the condition precedent, in the agreement of the 1st of December, 1862.
    The said plaintiff testified on cross-examination, “ that the personal property delivered up to the defendants was in value over five thousand dollars, and consisted in fanning mills, washing machines, wheelbarrows, sieving, lumber, tools, peddler’s rack, books of account and notes — promissory notes due to the firm of Richards & Thompson, amounting to five thousand dollars.”
    After some further testimony from the witness as to the custody of the books, papers and notes of the late firm, for a few weeks previous to the 1st day of December, 1862, on objection by plaintiff’s counsel, the Court intimated a doubt as to .the relevancy of the examination, under the pleadings, whereupon the defendants, by their counsel, proposed to show,

      First. By the further cross-examination of this witness, that he, witness, was mistaken when he said that he delivered all the promissory notes belonging to the late firm of Thompson & Richards to the defendants, that in fact he kept and used sixty-nine of them.

      Second. Under the pleadings, that the plaintiff, at the time of the agreement of first of December, 1862, had in his actual possession a large amount of the notes of the firm, and other property, which he had fraudulently secreted and refused to deliver, and which notes and property were embraced in and covered by the agreement sued upon in this case.

      Third. They insisted that they had a right on the cross-examination and by other testimony, to show the same state of facts.

      To which proposals and claim to further examine this witness and to introduce other testimony showing such facts, the plaintiff’s counsel objected. The Court sustained such objections for the reason that such evidence was not competent under the defendants’ plea of the general issue alone. Defendants’ counsel excejxted.
    The plaintiff’s counsel then gave in evidence the records, files and journal entries of the Circuit Court for the county of Livingston, in the case of one Samuel Grimes v. Daniel Richards, the plaintiff in this case, and Wm. E. Thompson, one of defendants, jointly impleaded as copartners, in which judgment was rendered by the said Circuit Court on the third day of August, 1864, for the sum of $760.20 in favor of the said Samuel Grimes, and against the defendants, Daniel Richards and Wm. E. Thompson, by default, for want of appearance and plea.
    Defendants’ counsel, on behalf of the said C. B. Thompson, objected; objection was overruled by the Court, and the judgment received as against both of the defendants. Exceptions were taken.
    The plaintiff then further gave in evidence the notes and other matters by which such judgment was made up, consisting of three notes of the late firm of Richards & Thompson, given to one Eri Coleman, and by him transferred to said Samuel Grimes, and also an open book account of the said Grimes against said Richards & Thompson, from which it appeared that the judgment taken by said Grimes did not allow items of credit to the amount of $57.00, and that if said judgment had been defended such judgment of $767.20 would have been reduced by the amount of the said fifty-seven dollars. It was farther given in evidence that said Grimes, previous to the bringing of suit had 'demanded of the defendant Charles B. Thompson the payment of the three notes and the open account, and that said Thompson had declined to pay such indebtedness, alleging as an excuse that he had not received certain promissory notes, the property of the firm of Richards & Thompson, covered by the agreement of the first of December, 1862, -which were yet in the possession of the plaintiff in this case.
    Samuel Grimes testified for plaintiff as follows: “ I know the parties. I presented the account sued on to Wm. E. Thompson for payment, and he told me to wait till Charles B. came up, and they would fix it. I afterwards presented it to Charles B. at Ann Arbor, and he said they were to pay it.”
    And thereupon defendants’ counsel called the defendant Wm. E. Thompson, who testified as a witness for the defendants, and the following questions were proposed by the defendants’ counsel to such witness:

      First. At the time the agreement of the 1st of December, 1862, was executed, was there any statement made by the plaintiff that he had then delivered all the notes of the then firm of Richards & Thompson to the defendants, and if you shall answer “ yes” to such question, was such statement the consideration or inducement that caused the defendants to execute and deliver the agreement sued on in this case ?

      Second. Was there any property or notes in the actual possession of the plaintiff, covered by the agreement sued on in this case, not delivered to defendants, or either of them, and which plaintiff expressly refused to deliver ?

      Third. Do you, or do you not know, of any assets of the late firm of Richards & Thompson, covered by the agreement sued on in this case, which the plaintiff has converted to his own use, to a large amount, both before and after the agreement of the 1st of December, 1862 ?
    The defendants also offered to show, by this witness, under the pleadings, that the plaintiff at the time of the agreement sued upon had in his actual possession a large amount of the notes and assets of the late firm of Richards & Thompson, and other property, which he fraudulently secreted, and refused to deliver, which notes and property were embraced in, and covered by the agreement sued on in this case.
    To which first, second and third questions and proposals the plaintiff’s counsel objected, on the ground that the same were incompetent under the pleadings. Which objection was sustained by the Court, and the questions and proposed evidence excluded, and exceptions taken.
    The Circuit Judge charged the jury, upon the question of damages, “ that if they found for the plaintiff, they should find the amount of the judgment of said Samuel Grimes, with interest from the 3d day of August, 1864, that being the day on which said judgment was rendered.”
    That before they could find for the plaintiff they must find “ that he signed off according to his agreement, or that the defendants were satisfied with what the plaintiff had done in that behalf;” and on being requested to define to the jury, by the counsel of defendants, how that signing off must be made, or done, and to separate that portion of the charge, “ that he signed off according to his agreement,” from this, “ or that the defendants were satisfied with what plaintiff had done,” the said Circuit Judge declined to modify, or define, as requested. To which refusal the defendants excepted.
    The defendants’ counsel also excepted to the rule of damages given by the said Circuit Judge to the jury, in his charge. The defendants’ counsel further prayed the Circuit Judge to charge the jury, on the behalf of the defendants, as follows:

      First. The “ signing off” required by the agreement of the 1st of December, 1862, must be in writing, unless the evidence proves the defendants, and both of them, to have accepted a parol transfer.

      Second. There is no evidence in the case that Wm. E. Thompson, one of the defendants, ever accepted or expressed himself satisfied with a parol delivery of the assets covered by the agreement of the 1st of December, 1862.

      Third. The “ signing off, ” whether in writing or by parol, implied a delivery of such notes and property as were on the said 1st December, 1862, in the actual custody and possession of the plaintiff.
    ■ Fourth. If the “signing off” required by the agreement of the 1st December, 1862, can be performed by parol, then it must be attended by an actual delivery of all the assets of Richards & Thompson, covered by the agreement aforesaid, unless the defendants were satisfied by a delivery of a part of such assets.

      Fifth. As matter of law, from the evidence, there has been in this case no performance of the condition precedent, in the agreement of the 1st December, 1862, on the part of the plaintiff.

      Sixth. Before the plaintiff can recover other than nominal damages on this agreement, he must show actual damage; that he has paid the judgment of Samuel Grimes, or otherwise satisfied it.

      Seventh. The agreement sued on in this case is, in effect, nothing but an indemnity to the plaintiff against the debts due by the late firm of Richards & Thompson.

      Fighth. The plaintiff has no right of action on this agreement, unless he shows himself damnified.

      Ninth. If the jury find a verdict for the plaintiff, it must be against both of the defendants or neither, and the admission of satisfaction with the mode of transfer by parol, of the defendant Challes B. Thompson, would not preclude the defendant, Wm. E. Thompson, from demanding of the plaintiff a written “ signing off” under the agreement of the 1st of December, 1862.
    Which nine several charges the circuit judge refused to give to the jury, and to Avhich refusal the defendants’ counsel excepted.
    The jury found for the plaintiff $841 damages, for which sum judgment was rendered, and the cause was brought to this Court by writ of error and bill of exceptions.

      Norris & Ninde, for plaintiffs in error.
    If for any of the errors assigned, the judgment in this cause should be reversed, and the cause remitted for a new trial, then all the questions raised in the errors assigned, would again come before the Court below for its ruling. In this view it is proper for the Court -to indicate its opinion upon them all.
    1. By the agreement of the 1st December, 1862, the defendant in error was, (as a condition precedent,) to “ sign off” his interest in “ lands.” This could only be done by an instrument in writing, properly signed, sealed and acknowledged; and this instrument, or deed, or its record, or a properly certified copy, should have been given in evidence. The existence of such deed was not collaterally in question, and though the plaintiffs in error accepted it,'when shown in evidence it might prove to be wholly defective, as performance of the condition precedent. “ Accepted ” in this testimony means simply received, not satisfied with. “ I executed a deed,” is swearing to a conclusion of law; “ They accepted a deed,” is equally a conclusion of law.
    As the plaintiff below claimed to show a “signing off” only by delivery of all the assets covered by such agreement, it was conqmtent for the defendants to show that there was no such delivery. — 2 Greenl. Ev. §§ 135, 136.
    2. The judgment in the Circuit Court of Livingston county in the case of Samuel Grimes v. Daniel Richards and William E. Thompson, was not .evidence as against the defendant C. B. Thompson, in this cause. He -was no party in that cause, and never had a day in Court. It may have been for too large an amount. — 4 Greenl. 75 ; 7 Id. 237; 17 Vt. 464.
    3. It was the province of the Court to determine in what way the “ signing off” required by the agreement of December 1, 1862, should have been made. — 2 Pars. Con. 3, 6, and note.

    4. It was error to refuse to charge the jury, that the “signing off” required by the agreement of the 1st December, 1862, must be in writing, unless the evidence proves the defendants, and both of them, to have accepted a parol transfer.

      5. It was error to refuse to charge the jury, as requested by the defendants’ attorney, as follows:

      a. There was no evidence that defendant, Wm. E. Thompson, accepted a parol transfer of the assets. — 8 Black. 256.

      b. The “ signing off” implied a delivery of such assets as were in the actual possession of Richards. — Hilliard on Sales, 1.

      c. A fortiori, a parol transfer of such assets implied and required a delivery, unless the defendants were satisfied with a part delivery. — 5 Conn. 199; 6 Gray, 9; 4 B. and C. 246; Comp. Laws, § 3184.

      d. There was no evidence going to show a joerformance of the condition precedent.

      e. The plaintiff must show that he has paid the judgment of Grimes, or satisfied it, before he can recover. — Sedgw. on Das. 305, et seq.

      f. The agreement of 1st December, 1862, was to plaintiff an agreement of indemnity only. — Sedgw. on Das. 305, et seq.

      g. The admission of satisfaction with the performance of the condition precedent of C. B. Thompson, would not preclude Wm. E. Thompson from demanding of Richards a written “ signing off.” — 2 Comst. 512, 524.

      M. B. Wilcox, for defendant in error.
    1. It was clearly competent to show that Richards executed and delivered a deed to the Thompsons, which they accepted as a conveyance of the Iowa and Indiana lands. This evidence simply shows that Richards performed this part of the contract in a manner satisfactory to them. The contents of the deed were not inquired after, nor was it material so long as they accepted it as a “signing off” of his title to the land.
    2. The judgment in the Circuit Court was properly admitted. The liability of the Thompsons was co-extensive with the liability of Richards and Thompson to their creditors. When the liability of the Thompsons was established, this judgment was admissible, as the quantum of damages. — 4 Term. 590; 4 Binn. 80; 14 Johns. 81.
    3. Exceptions 2, 4, 5, are based upon the rejection of testimony to prove that Richards did not deliver all the property and had converted and secreted a portion of the same, embraced in the agreement sued on.
    This testimony could only go to recoup damages. This anomalous method of adjusting the equities between parties is confined strictly to such damages as a defendant has sustained because the plaintiff has failed to perform his part of the contract upon which he sues, — 4 Sandf. Sup. Ct. 147; and is only proper where a defendant can bring a cross action for a breach of the same contract by the plaintiff — 5 Porter, Ind. 176 ; 34 Ala. 659.
    This contract is one that is not capable of a half or partial performance on the part of Richards; he has either conveyed his interest, or he has not. If not, they have no claim to the property alleged to have been converted; if he has, then there is a full performance on his part.
    But the Thompsons have always treated this contract as performed by Richards. By virtue of it they have received over ten thousand dollars of property, aside from the Iowa and Indiana lands; and claiming to receive projjerty alleged to be secreted, recognizes the fulfillment of it by Richards. Charles B. Thompson admits that Richards had done all he agreed to do, that “ there was nothing more for him to do or to sign.” This admission binds both. — 1 Greenl. Ev. § 174, and cases cited in note 3.
    4. The rule of damages was right if the plaintiff could recover anything but nominal damages. There was no error in not charging the juryún what way the “signing off” should be done. The only question was, has Richards “signed off” in any manner which is satisfactory to the Thompsons ? That was a question of fact, and was properly left to the jury.
    Whether the Thompsons accepted a parol transfer, or whether William E. ever accepted or expressed himself satisfied with a part delivery of the property, if of any consequence whatever, were questions of fact for the jury.
    It was not necessary to show that Richards had paid the judgment to enable him to recover. This precise question was settled by this Court in 1 Doug. Mich. 267.
   Christiancy J.

The Court erred in allowing the plaintiff, who was sworn as a witness, to testify “ that he executed and delivered to the defendants a deed of the company’s lands in Iowa and Indiana, which they accepted.” The object of the proof was to show performance by the plaintiff of the condition upon which the promise of the defendants was based. The deed was directly in issue and should have been produced and proved in the ordinary way. It was for the Court, and not the witness, to judge whether the instrument he called a deed was such in law, whether, in legal effect, it was a conveyance of the land; if not, the mere fact that the defendants accepted the paper, Tvould not constitute performance by the plaintiff.

The second error assigned is the refusal of the Court to allow the cross-examination of the witness for the purpose of showing that ho was mistaken in his statement on the direct examination, that he delivered to the defendants all the promissory notes belonging to the firm of Thompson and Richards, and for the purpose of showing, as the defendants proposed, that he had in fact used sixty-nine of them, and that at the time of the agreement he had in his possession a large amount of the notes of the firm, and other property, covered by the agrément, which he fraudulently secreted and refused'to deliver.

It would seem from the bill of exceptions, in connection with the argument of the counsel for defendant in error, that the Court, in excluding this cross-examination, must have acted upon the idea that the non-delivery of a part of the property and notes by the plaintiff, could only be shown in reduction of damages, by way of recoupment, and not in bar of the action; and there being no notice of recoupment under the general issue, the evidence was inadmissible. Had this, however, been a proper case for recoupment, in which the defendant could only set up the non-delivery of a part of the property in reduction of damages, still the rejection of the proposed cross-examination would have been clearly erroneous under the most restricted rule ever adopted, where cross-examination is allowed at all. The witness had testified in chief to' the delivery of all the personal property and notes of the firm. The cross-examination related directly to the same subject matter, and to the identical facts stated by him in his direct examination. The defendants would have had a clear right, upon any theory of the action or defense, on cross-examination, not only to show that a part of the property had not been delivered, but that there had been an entire failure to deliver any part of it. Even upon the theory of the defense which the Court seems to have adopted, they had a right to draw out on cross-examination any thing which would tend to contradict, weaken or modify the evidence he had given on his direct examination, or any inference which might have resulted from it, tending in any degree to support the plaintiff’s case. If for no other purpose, they were certainly entitled to it for the purpose of testing the credibility of the witness, or to show him unworthy of any credit. But this is not the only ground; it might have explained away the effect of his direct testimony, without any imputation of a want of veracity. It might have completely nullified or greatly modified the effect of his testimony in chief; and, until such cross-examination should have been had or waived, the evidence given on the direct examination should not have been allowed to go to the jury.

But this was not a case for recoupment. The plaintiff sued and declared upon the special contract, and not upon an implied contract, to pay for the property which was delivered to and appropriated by tbe defendants. Having sued and counted only upon the express contract, be was bound to sbow performance on bis part of tbe condition upon wbicb tbe promise of tbe defendants was based, or be could not be allowed to recover at all. See Allen v. McKibbin, 5 Mich. 449.

The defendants, therefore, bad a right, not only to sbow tbe non-performance of tbe condition, by cross-examination, but to introduce evidence for tbe same purpose in their defense, tending to sbow such non-performance. All such evidence would go to tbe whole cause of action. Evidence of this kind was offered on tbe defense, but excluded by tbe Court. This was clearly erroneous. Tbe second, fourth and fifth errors are therefore well assigned.

Tbe Court also erred in admitting tbe judgment in favor of Grimes against tbe plaintiff and William E. Thompson, to wbicb Charles B. Thompson was not a party, and in bolding that judgment to be the measure of damages. Had the contract been one, of indemnity merely, as contended by tbe counsel for plaintiffs in error, and tbe judgment bad been against tbe plaintiff and both defendants, it might have constituted tbe measure of damages; but tbe contract was to pay the debts of tbe firm, and not merely to indemnify against them. — Hall v. Nash, 10 Mich. 303; Butler v. Ladue, 12 Id. 173. Neither previous payment by, nor a judgment against tbe plaintiff was necessary to perfect bis right of action. The contract was to pay all tbe indebtedness of the firm, not to pay any judgment which might be rendered thereon. And whether tbe judgment might have been evidence and constituted a measure of damages, as against William E. Thompson, bad be been the only contracting party and sole defendant, is a question wbicb does not here arise. This is a joint action against two defendants, and tbe plaintiff must establish a joint liability, or fail in bis suit against both; tbe several liability of one will not sustain tbe action. Charles B. Thompson was a stranger to tbe judgment and is not to' be affebted by it. The third and sixth errors are therefore well assigned.

Several questions were raised as to the proper interpretation of the contract, what would constitute a “ signing off” by the plaintiff of the rights, title, property, profits and lands of the company, within the meaning of the contract, and the duty of the Court to charge the jury in this respect. It was the duty of the Court to construe the contract^ and to charge the jury upon any question which might arise upon it. We think the agreement, when fairly interpreted, with reference to the circumstances existing at the time, the nature of the property and the object the parties had in view, would, as to all tangible personal property and negotiable paper, payable to bearer, and which would pass by mere delivery, be satisfied by a delivery to the defendants, so as to place the same in their full possession and control, and an acceptance of the same, unless written evidence of the transfer was specially requested. But if the defendants should refuse to accept such delivery without written evidence of the transfer of title, they would have the right to insist ujjon it, and might refuse to accept a delivery without it; for, though the title would pass without the writing, yet owing to the previous relations between Charles B. Thompson and the plaintiff, disputes might arise between the plaintiff and the defendants as to the ownership, and written evidence would be more valuable to the defendants and more easily preserved; and such evidence would in such case come fairly within the terms and intent of the contract.

As to any contracts, accounts or choses in action, the property in which would not pass by mere delivery, the plaintiff, to fulfill the condition of the contract, should have assigned or conveyed his Interest in them by writing, and delivered them, so far as susceptible of delivery, to the defendants, so as to put them under their dominion and control; and the interest of the plaintiff in the lands of the firm should, of course, be conveyed by deed of conveyance, properly executed, acknowledged and delivered.

The condition of the agreement could be performed by the plaintiff only by a transfer in the proper manner, as above indicated, of all the property and rights of the plaintiff in the firm. A transfer of a part only, by delivery or otherwise, would not satisfy the condition, unless the defendants, knowing that all had not been thus transferred, chose to waive the transfer or delivery ofrthe residue. And such waiver, to be effectual, should, we think, be the act of both the defendants. A waiver by one would not bind the other, nor, in this suit, be effectual as to either. There is no evidence tending to show that defendants were partners, either at the time of sale or afterwards. One cannot, therefore, be considered the agent of .the other for the purpose of such waiver, without proof of such agency; and we can discover no sound or safe principle upon which a waiver by one of these defendants, or the admission of one, as proved in this case, should bind the other. The waiver, if effectual, constituted in legal effect an alteration of the contract, and was equivalent to the making of a new contract, by which the defendants would be bound to pay all the debts of the firm upon the plaintiff’s transferring to them his interest in a part of the property of the firm, when by the original contract they had only agreed to pay those debts upon his transferring his interest in the whole. And, upon principle, we think it would require the same authority from the one to bind the other by such new or altered contract, as would have been required to authorize him, as agent of the other, to bind him by the original contract, had that been made through such agency. If one can bind the other by a waiver of part of the condition, we see no good reason why he may not bind him by a waiver of the whole. Payment to, or a release by one joint creditor stands upon quite different grounds.

The admissions of Charles B. Thompson were evidence as against him, and it was competent for the plaintiff to introduce them in this case, but to render them of any avail, he should also have shown admissions of a like tendency by the other defendant. If he failed to do so, the admission of Charles B. should have been withdrawn from the jury. Such admissions are often made under a misapprehension, and might have been made in this case in ignorance of facts known to the other defendant. Charles B. might have made the admission of full performance, knowing there had been but a partial performance, but with the intention of waiving the performance of the residue. Such considerations might not, it is true, exclude the' admission of one as against the other of two joint creditors or payees, when the admission related to payment or satisfaction; because it is a part of the legal effect of the joint contract, that payment.may be made to either, and will operate as payment to both, and no new contract or liability is thereby created; and if one of them choose to admit the payment of a debt due to him and the other jointly, when it has not been j>aid in fact, he may thereby render himself liable to account to the other for the proportion due the latter. But the defendants were not, by this contract alone, joint creditors, nor was the plaintiff thereby bound to them for the payment or performance of any thing. He does not sign the contract and was not bound by it. His performance was optional — merely a condition precedent to the undertaking of the defendants, and until performance or waiver of performance, they were neither liable jointly nor severally. The admissions of the one cannot, therefore, bind the other on the ground ofj a joint liability upon the contract, (if that were sufficient to admit them). The joint liability cannot be proved by the admission, when the admission is necessary to establish the joint liability. This would be reasoning in a circle.

Ii the condition had not in fact been fully performed, the admission by Charles B. Thompson that it had been thus performed could 'only operate as a waiver, and this, as already shown, would be equivalent to a new contract. Without performance or waiver there was no liability. Either performance or waiver would create a liability. The case therefore is one in which the admissions of one, if allowed to bind the other, would tend to create a liability on the part of the latter, and to bind him by a contract to which he never assented.

Such a power in one joint contractor to bind another, we think unreasonable and dangerous. — See Bell v. Morrison, 1 Pet. 351; Van Keuren v. Parmelee, 2 Comst. 523; Lewis v. Woodworth & Pratt, Id. 512 ; the reasoning of which, upon this point, we entirely approve; see also Shoemaker v. Benedict, 1 Kern. (11 N. Y.) 176. There is no evidence in the record tending to show that William E. Thompson admitted performance of the condition by the plaintiff’ or ever consented to the acceptance of a part for the whole, or that he ever waived any part of the condition. Nor was there any evidence tending to show that Charles B. Thompson was his agent, or had any authority to accept such partial performance, or to waive his rights in any respect.

The judgment must be reversed, with costs, and a new trial granted.

Campbell and Cooley JJ. concurred.

Martin Ch. J. concurred in the result.


source: Caselaw Access Project

author: Campbell J.

license: Public Domain

text:
    Albert Fisher v. William Hood.

      Evidence. Seduction. On the trial of an action brought by the plaintiff for the seduction of his daughter, the defendant offered to prove, that the person seduced, who had testified for plaintiff, and denied the same fact on cross-examination, had admitted that she had stated, some two or three years before the alleged seduction, that she was keeping company with and engaged to one J. S. Meld, That there was no ground on which such evidence was admissible. It was not relevant to the issue, and was equally inadmissible, whether offered for impeachment or contradiction, because entirely immaterial.

      Heard April 12th.

      Decided April 17th.

      Error to Wayne Circuit.
    There was hut one error assigned. The nature of the case and the ground of the allegation of error are sufficiently stated in the opinion of the Court.

      Moore & Griffin, for plaintiff in error.
    They cited 13 Ala. 324; 33 Me. 367; 1 Md. 1; 8 Texas, 284.

      G. V. N. Lothrop, for defendant in error.
   Campbell J.

Hood sued Fisher for the seduction of Sarah Hood, his daughter, in June, 1863. Evidence was given of the offence complained of. The plaintiff also showed by her that some years before there had been an illicit connection between the same parties. On cross-examination she was asked whether she had not been engaged to one John Sly, which she denied. She also denied admitting to Hial Sly that she had been engaged to John Sly. Defendant Fisher then offered to show by his mother, Lydia Fishei*, that in 1860 and 1861 Sarah Hood told her she was keeping company with and engaged to John Sly, and that John Sly in 1861 brought Sarah to Avitness’ house. This testimony was excluded, and exception Avas taken ro the exclusion.

We can perceive no possible ground on Avhich such evidence was admissible. It Avas not relevant in any Avay to the issue, and Avhether offered for impeachment or contradiction it was equally inadmissible, because entirely immaterial, even had a foundation been laid for asking impeaching questions.

The judgment must be affirmed, with costs.

The other Justices concurred.


author: Christiancy J. Martin, Ch. J.

text:
    Harriet W. Pratt v. William H. Tefft.

      Dower. Non-resident. A woman residing out of this State at the time of her husband’s death is not entitled to dower of lands, lying within this State, of which he had been seized, but which he had conveyed without her joining in the deed.

      Construction of Statutes. Chap. 66, sec. 21, Bev. Stat. of 1846 (Comp. L. §2792) contains'the following language, “any woman, residing out of the State, shall be entitled to dower of the lands of her deceased husband, lying in this State, of which her husband died seized, and the same may be assigned to her, or recovered by her, in like manner as if she and her deceased husband had been residents within the State at the time of his death.” Sec. 15 of Part 2, Title 1, ch. 2 of the Bev. Stat. of 1S38 contains the same provision, except that the phrase, “of which her husband died seized,” is wanting. This addition to the former statute is to be supposed to have had a motive, which can be collected only from the language of the two sections, with such light, if any, as may be thrown upon it by other provisions of the two statutes. The former section allowed dower generally, that of the revision of 1840 allowed it in lands, “ of which her husband died seized.” It seems impossible to construe this additional phrase otherwise than as excluding dower in the same circumstances, in any other lands. The non-residence intended by this statute is at the time of the husband’s death, and not at the time of the alienation of the land.

      Affirmative clause implying a negative. The clause “of which her husband died seized,” although affirmative in form, could have no affirmative effect whatever, for the reason that any disability of alienage or non-residence was already fully removed by the same statute. The only effect it can have is by the negative implication which results from it, and which is a necessary one, and as much a part of the statute as if it had been expressed.

      Definition. “Becoceredf meaning of. The statute refers to dower being “assigned ” to the widow, which might be done by the Probate Court, or “recovered ” which includes clearly the recovery by action as in other cases of the right of dower.

      Heard October 10th, 1865.

      Decided April 17th.

    Error to Wayne Circuit.
    The facts of the case are fully stated in the opinion of the Court.

      Theodore Romeyn, for plaintiff in error.
    1. Until the act of 1846, the widow of a citizen of the United States, although not residing in Michigan, by the organic law of the Territory of Michigan and subsequent legislation of the territory and state, was entitled to dower. No distinction existed between the widow of a resident of Michigan, and the widow of a resident of any other state or territory of the United States. — 1 Mich. 1; 4 Iowa, 381; 11 Ohio, 219.

      2. The act of 1846, (Rev. Stat. 270, § 21,) was not intended to deprive the widow of a non-resident of lands aliened by her husband in his life time, but merely to restrict the remedy for the assignment or recovery of her dower.
    This enactment should be strictly construed when it is sought to be used to destroy the right of dower.

      a. As altering the common law.

      b. As opposed to the general policy of the law on the subject of dower.

      c. As making an impolitic and unusual distinction between our own citizens and the citizens of other States, placing the latter in a worse position than an alien.
    The different sections of the act, on the subject of rights to dower and remedies for its recovery, seem clearly to imply that the Legislature did not intend to deprive the wife of a non-resident of her dower, but merely to restrict the remedy; because,

      a. The statute (§ 2772) is explicit, and gives the right to any widow.

      b. It provides for a summai-y assignment of dower by the Judge of Probate when the husband died seized, and the right to dower is not disputed (§2799).
    When these facts did not concurrently exist, even a resident widow was driven to an action.

      c. This provision is similar to that in the Revised Statutes of 1838, 263, § 3. That was taken in substance from the Massachusetts Revised Statutes. The rule and the reason for it are stated in 9 Mass. 9; 13 Id. 413.
    We find similar provisions in the statutes of other States.— Maine Rev. Stat. ch. 95; Public Laws of Rhode Island, 190; 3 N. H. 163.

      d. But the Revised Statutes of 1838 contained an anomalous provision on this subject. See sec. 15, p. 265. The fact of marriage might be disputed; so, also, the execution of a deed under sec. 8, p. 264. These were not suitable matters for a Probate Court to decide.

      Moreover, the language of seo. 15 is ambiguous. It would bear the construction that the non-resident widow might have her dower assigned by the Probate Court, generally, without reference to the seisin of the husband at the time of his death. Hence the propriety of a change in the law. The section, as it stood, declared two things,—

      First. Alienage should not bar the right' of dower. This was changing the common law.

      Second. A declaration that a resident in another state should be entitled to dower, and that she should be entitled to the same remedies as a resident.
    It is plain that the latter part of this section was not intended to confer on the non-resident the right of dower. This existed under the old law, and was recognized by section 1. It was a declaration as to the remedy, with a recognition of her right.

      e. This leads us to the true construction of sec. 21 in Rev. Stat. of 1846, p. 270. Reading this in connection with sec. 8, p. 268, and with the provisions in the Rev. Stat. of 1838, is it possible to infer that the Legislature intended, by the insertion of the phrase “of which the husband died seized,” in this 21st section, to destroy the scope of the 1st section, change the whole policy of the law, and give dower to an alien, while refusing it to the citizen of a sister State ? See 6 McLean, 425.

      f. We ask for the application of the principle that all parts of the same act shall be construed together, and we refer to the different provisions of this lav, as sections 1, 7, 8, 12.

      g. No argument can be founded on sec. 13, Rev. Stat. of 1846. There is the same provision in Statutes of 1838, 263, sec. 7, and confessedly, under that code, the widow of a nonresident was entitled to dower.

      h. We ask the Court to look to the consequences of refusing dower to a non-resident. As in this case, the husband of a helpless lunatic may deprive her of what would have been her rights, by removal to another State.

      3. If the statute be construed as depriving a non-resident of dower, its terms admit of a distinction between the case of a party non-resident at the time of the seisure and alienation, and one who afterwards removes' from the State. In the latter case, the marriage of the husband must be presumed to be known. His subsequent unforeseen removal from the State should not be allowed to give to the purchaser, at the cost of the wife, an interest for which he never paid, and which he did not contemplate. The words of the statute can be construed as applying to the case of a woman whose general residence was out of the State, and whoso relations to the husband might not have been known to the purchaser.
    D. C. Holbrook, for defendant in error.
    The only question presented is, whether a woman residing out of the State shall be entitled to dower of the lands of her husband lying in this State, of which her husband was not seized at the time of his death.
    The Revised Statutes of 1838, p. 265, sec. 15, allowed dower in such cases. This section reads, “ and any woman residing out of this State shall be entitled to dower in the lands of her deceased husband lying within the State.'1'’

    The Revised Statutes of 1846, p. 270, sec. 21, ‘first changed this law and restricted the right by adding to the law of 1838 the words “ of which her husband died seized.'” — Comp. L. 853, §2792.
    The provisions contained in prior sections would allow dower in this case, but it is contended that this provision, speaking specially of non-resident women, and changing the previous law by adding the words, “ of which her husband died seized,” is entitled to a construction by itself, without connection with, or reference to other parts of the law on this subject; that it is entitled to have some effect, and it is to have a construction of some kind. If this is correct, then there caü be no question that the plaintiff in that case is not entitled to dower by any fair construction of this particular addition to, and restriction of the previous law.
    The change is not unreasonable, as the titles to land were from necessity changing hands from non-residents to residents, and if the husband was a resident the law makes the wife also a resident, and she had the benefit of such residence.
    This change, however, prevented impositions being practiced by persons who were not residents, for the reason that, whether grantors were married or not, purchasers could not know or ascertain as well as if such persons were residents.
    The laws of this State protect the resident widow in the avails of lands sold in another State, as well as confirming her right of dower.
    The defendant in error deems it sufficient to urge that the words “ of which the husband died seized ” mean something, and if anything, the effect is to exclude dower in lands of which a non-resident husband was not at his death seized.—6 McLean, 442.
   Christiancy J.

This was an action of ejectment brought by the plaintiff below, (also plaintiff in error,) for the recovery of her dower, as the widow of William A. Pratt.

The facts are found by special verdict,. and in legal effect may be stated briefly thus: The marriage took place in this State about the year 1844. The husband of the plaintiff became seized of the premises in question in 1857, and conveyed the same to the grantor of the defendant in 1858, the plaintiff not having-joined in the deed nor since released her dower. The residence of the husband and wife continued in this State until after the conveyance by the husband. They afterwards removed to the State of New York, where they continued to reside until 1861, when the husband died in the city of New York.

The only question is whether, upon these facts, she is entitled to dower in these lands. It is admitted that, at common law as well as under the Revised Statutes of 1838, (had they continued in force,) her right would have been clear, and it would have been equally clear under the revision of 1846, had she continued to reside in this State until the death of her husband.

By the Revised Statutes of 1838, part 2, title 1, ch. 2, sec. 15, it was enacted;- “The alienage of a woman shall not bar her right of dower, and any woman residing oixt of the State shall be entitled to dower in the lands of her deceased husband lying within the State, and the same may be assigned to her or recovered by her in like manner as if she and her deceased husband had been residents within the State at the time of his death.”

In the Revised Statutes of 1846, ch. 66, section 21, we have the same provision as the section quoted above, with the single exception, that after the words “lying within the State,” and before the words “and the same maybe assigned,” &c., the following additional clause is inserted, viz.: “of which her husband died seized.”

We must presume that the legislature which adopted the revision of 1846 were not satisfied with the provision as it stood in the section above quoted from the revision of 1838, and that this clause was therefore added for some jouipose, and intended to have some effect; and it is our duty in construing the statute and interpreting this clause, to ascertain the purpose and intention of the legislature. It will be noticed that this clause occurs in a provision which is affirmative in form, purporting to give to a widow, though residing out of the State, a right to dower in lands lying within the State. But it is quite clear that this clause could add nothing to the affirmative effect of this jDrovision or of any other provision of the statute upon this subject. The first section of the chapter (66 of Rev. Stat. of 1846,) had already given the' right to dower, not only in the lands of which the husband died seized, but “ of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage, unless she is lawfully barred thereof,” — or, substantially, dower at common law. The first part of this section fifteen, as it stood in the revision of 1838, and as it still stands in section 21 in the revision of 1846, where the clause under consideration is inserted, had already removed the disability of alienage; so that no affirmative provision was necessary to give dower in the lands of which the husband of a non-resident woman died seized. The restrictive clause, therefore, inserted in the section in 1846, can have no affirmative effect whatever. The only possible effect which it can have is by the negative implication which results from it. Why should the provision of which it forms a part be confined to cases where the husband died seized, if the intention was that the widow should have the same right, whether he died seized or not ? The negative implication is, we think, a necessary one, and therefore as much a part of the statute as if it had been expressed. The effect of the provision, as it now stands, is the same as if it had been expressly declared that a woman residing out of the State shall not be entitled to dower in any lands in this State of which her husband did not die seized; thus, in effect, operating as an exception to the general words of the first section of the chapter, unless the legislature can be considered as having treated such non-residence as one mode of barring dower, which may have been the view taken by the legislature; the provision in question following immediately after the provision that the woman should “ not be barred of her dower” on account of her alienage, which is found at the beginning of the section.

It has, however, been strenuously urged by the counsel for 'the plaintiff in error, that the whole provision in section twenty-one, as it now stands, with the restrictive words inserted, was intended to apply only to the mode provided in the eighth, ninth, and tenth sections for having dower assigned in the Probate Court. There may have been good reason for making a distinction between residents and non-residents as to this remedy. But no such distinction is intimated in the sections providing this remedy, and, unfortunately for the argument, the words of section twenty-one clearly extend the effect of the restrictive clause, and of the whole provision, beyond the remedy in the Probate Court. The words immediately succeeding the restrictive clause are, “and the same may be assigned to her, or recovered,” <fcc.; so that the negative implication is just as strong against the right of recovery by action, as against the proceeding for assignment in the Probate Court.

But it still remains to be considered, whether it is the non-residence of the woman at the time of the alienation by the husband, or at the time of his death, which is to deprive her of dower. If the former, the plaintiff will be entitled to recover; if the latter, she will not.

Several states have by statute confined the widow’s right to dower, in all cases, to the lands of which her husband died seized. But nothing of this kind has been attempted by this chapter or any other statute in this State. And it is difficult to conceive any sound reason for denying the right to a woman on the sole ground that she happens to be residing in another state when her husband happiens to die, and when she was residing with him in this State at the time he conveyed the land, and would have been entitled to her dower by remaining here.

Upon principle, and as a matter of public policy, there would seem to be much better reason for making the right dejDend upon residence at the time of the conveyance by the husband, than upon her residence at the time of his death. And there are some provisions, as well as certain omissions and changes in the revision of 1846, when compared with that of 1888, which would seem to indicate that such might have been the intention.

The revision of 1888, in the chapter regulating dower (Chapter 2, Title 1, Part 2), section seven, provides a mode by which “ a married woman residing within this State, may bar her dower,” by joining in a deed with her husband, acknowledgecl as in that section provided. The next section (8,) provides that, “ when any married woman not residing in this State shall join with her husband in the conveyance of real estate situated within this State, the conveyance shall have the same effect as if she were sole; and the acknowledgment or proof of the execution of such conveyance by her may be the same as if she were sole.” The next section provides for barring dower by jointure. Now, as it is admitted that, under this revision (of 1838,) a widow would have been entitled to dower without reference to her residence, and, whether the land had been aliened by the husband, or not; and this (8th) section occurs under the head of dower, and in the midst of provisions for barring dower, and there was no other provision ■enabling her to release or bar. her dower by deed, it is but reasonable to infer that one of the purposes of the section was to provide a mode by which this might be done. But it is for the reasons here stated, rather than the actual appropriateness of the language, that the section admits of this construction. The language is more appropriate to the conveyance, by the wife, of her own lands.

But, under a system in which a married woman residing out of the State at the time of the conveyance by the husband, was not to be allowed dower in the lands thus conveyed, there would be no need of providing a mode for releasing her dower by joining the husband in a conveyance.

By the revision of 1846, (Section 13, Chap. 66,) under the head of dower, we have substantially the same provision, enabling “ a married woman residing within this State” to bar her dower by deed, as that in section seven, above alluded to, in the revision of 1838. But the next section (8) of the revision of 1838 is wanting in chapter 66 of the revision of 1846, and no equivalent provision is found in this chapter, providing for dower. But on turning to the previous chapter (65,) of the latter revision, entitled “of alienation by deed,” <fcc., we find section thirteen in the very words of section eight of the revision of 1838, above cited. But in this chapter it does not stand connected with the subject of dower. And by comparing the previous section (12, Chap. 65,) with section thirteen of the next chapter, 66, (revision of 1846,) an inference may be drawn that section thirteen of chapter sixty-five was intended to apply only to conveyances by the wife of her own property.

While, therefore, the changes made in the revision of 1846, from the previous statutes, go to confirm the conclusion, that non-residence of the wife was intended to deprive her of dower in land aliened by the husband, they would also seem to indicate that the non-residence which should have that effect was to be that existing at the time of alienation. If, therefore, the language of section twenty-one (Chap. 66, revision of 1846,) were such as to permit this construction, we should feel bound to adopt it, as being more reasonable in itself, as well as more consistent with other provisions of the statute. But the express language of the section is so clear as to set any such construction at defiance. “Any woman residing out of the State shall be entitled to dower of the lands of her deceased husband, lying in this State, of which her husband died seized; and the same may be assigned to her, or recovered by her, in like manner as if she and her deceased husband had been residents within the State at the time of his death.” Here the time of the non-residence is clearly fixed at the death of the husband.

The consequence is, that a woman residing in this State Avith her husband at the time he alone conAmys the land, loses all right of dower in such land, by removing out of the State and residing there at the time of his death. And it may be, — ■ though we give no opinion upon the point — that a woman, though residing out of the State Avith her husband at the time he alone conveys the land, and therefore barred of her dower if she remain there till his death, may yet become entitled to dower in the same land, by remoAong to this State prior to, and residing here at the death of her husband.

If at liberty to go outside of the statute and speculate upon the probable intention of the legislature, we should be inclined to doubt that such could have been their intention. But we are hound by the intention they have unequivocally expressed. Their power (if exercised before the right of dower has become vested by the death of the husband,) to limit dower, in all cases, to land of which the husband shall die seized, is not denied; and no valid objection can, therefore, he made to any line of distinction, however whimsical, between the cases in which dower in such aliened land shall he allowed, or not. If they have made a mistake and expressed one intention, while they supposed they were expressing another, it is a mistake which they alone are competent to correct.

The judgment of the Circuit Court must he .affirmed, with costs to the defendant in error.

Cooley and Campbell, JJ. concurred.

Martin, Ch. J.

dissenting. I cannot concur with my brethren in the result in this case. I think Mrs. Pratt entitled to her dower.


author: Christiancy J.

text:
    Edward Bacon and others v. George Kimmel.

      Chattel Mortgage. Attachment. Personal property in the possession of a mortgagee by virtue of a chattel mortgage, after the time for payment has expired, is not subject to attachment by a creditor of the mortgagor, and a sale on execution in such attachment suit is void. — Tannahillv. Tuttle, ZMich. 104. Eggleston r. Mundv* 4 Id. 295.

      Effect of setting aside a sale on execution. Bar. When a levy and sheriff’s return of sale are set aside by the court, ou motion of the plaintiff, on the ground that the property did not belong to the defendants in the attachment, any claim of the plaintiff to the property or possession acquired by the attachment and sale is effectually barred.

      Change of title by judgment in trespass; how far it relates bach, and what is its efect. The plaintiff, in a suit in trespass, for the purpose of proving title, introduced a judgment against himself in favor of the mortgagee in a chattel mortgage, which judgment was more than two years subsequent to the trespass complained of in this case. Held, that, whatever might be the effect of such judgment to vest the title of the property in the defendant as against the plaintiff that suit, or whatever might have been its effect in an action of trover, it is unavailable against the defendants in the present action of trespass.

      The defendants, not being trespassers at the time the act complained of was committed, they cannot be made trespassers, by relation, in consequence of a judgment between, other parties, although affecting the same property.

      Heard April 12th and 13th.

      Decided April 24th.
    Error to Berrien Circuit.
    Defendant in error brought trespass de ionis asportutis, in the court below, against plaintiff in error.
    The declaration contained but one count, and described the property as one locomotive steam engine, twenty lumber cars, blacksmith’s tools, &c.
    The testimony tended to show the following facts: That a firm, consisting of plaintiff in error, George Bridgman, Charles F. Howe, and Joseph W. Howe, bought certain land in Berrien county, and having constructed thereon a steam saw-mill, a pier and wooden railway, to be used in their lumber business, they bought the said cars, and, in 1856, pJlaced them on said railway, whore they continued, until after the alleged trespass, in use in said business by said Bridgman, in common with Joseph W. Howe. August 1st, 1857, the firm conveyed said land to Warren Wheeler. August 3d, 1857, they executed to Wheeler a chattel mortgage, including the property mentioned in said declaration, all fixtures on said land, and other property — said mortgage authorizing the mortgagors to remain in possession.
    December, 1857, Wheeler entered into possession of all the property, real or personal, and continued in undisputed possession for eighteen months, enrploying said George Bridgman and Josep)h W. Howe.
    In August, 1858, the defendant in error commenced an attachment suit against said firm in Berrien Circuit Court. January 5th, 1859, the pnopjerty mentioned in the declaration, being in Wheeler’s pDOSsession, defendant in error caused the same to be sold on execution in said attachment suit, and without any removal of the pnoporty mentioned in the declaration, made some verbal arrangement with Josepfii W. Howe to take care of the property for him. Said Howe, jointly with said Bridgman, then, before, and afterwards, using the property as a servant of said Warren Wheeler, who paid no attention to such arrangement, and continued in full use and possession of the property for five months thereafter, when Noah Gibson, who had a mortgage on the land aforesaid for $5j000, and interest from April, 1856, having obtained a decree in the United States Circuit Court for the foreclosure of said mortgage and sale of said real estate, and being about to proceed to sale, said Wheeler ceased to interfere personally with the property, and left the same in possession of said Joseph W. Howe and George Bridgman; and said Noah Gibson having obtained a master’s deed of said real estate, with all the privileges and appurtenances, said Joseph W. Howe and George Bridgman, on the 28th day of November, 1859, jointly executed a lease, hiring from said Gibson said realty, expressly including the mills, railroad and pier, with appurtenances, until April 1st, 1860 ; and, as co-tenants of Gibson, held possession of the property described in said declaration. On the 29th day of November, 1859, the plaintiffs in error, Elijah Cowles and Edward Bacon, entered into a written agreement to purchase said real estate from said Gibson, and for holding the same in common with George Bridgman.
    December 20th, 1859, Noah Gibson sold to said Elijah Cowles, his heirs and assigns, said real estate, describing the same as the Charlotteville mill property, including the Charlotteville mills, and authorized said Elijah Cowles to take possession and use thereof as he pleased after April 1st, 1860. May 2d, 1860, the plaintiff in error, David Bacon, acting jointly with Bridgman and the other plaintiffs in error, is alleged to have taken the property described in the declaration from Joseph W. Howe, there being at no time any removal of said property. September 6th, 1860, Warren Wheeler commenced an action of trespass in the United States Court against the defendant in error; his declaration naming the property described in the aforesaid declaration of the defendant in error, and much other property, but omitting the locomotive. April 22d, 1861, the defendant in error commenced his aforesaid action of trespass in the Berrien Circuit Court against the plaintiff in error. June, 1863, Warren Wheeler recovered judgment in his aforesaid action of trespass, in the United States Court, against George Kimmel, the defendant in error, and the judgment was afterwards paid.
    George Kimmel, defendant in error, having obtained an order in Berrien Circuit Court setting aside the levy and sale in said attachment suit, filed his affidavit in January, 1864, stating that the judgment in said attachment suit was in no part satisfied, and obtained an order for a new execution for the whole amount of said judgment in the attachment suit aforesaid.
    The plaintiff in error requested the court to charge as follows:
    1st. That, by the terms of the chattel mortgage from the Howes and Bridgman to Wheeler, offered in evidence by the plaintiff, the property therein described was not subject to attachment, or to levy and sale on execution issued, on the judgment rendered in Berrien Circuit Court in favor of plaintiff against said mortgagors, and which the plaintiff .has offered in evidence; and such pretended levy and sale, offered in evidence by plaintiff, was illegal and void, and plaintiff thereby acquired no title to any of such property.
    2d. That, it appearing in evidence that the said plaintiff, in January, 1864, or about that time, caused the said illegal levy and return made by the sheriff on the said execution, before then issued on said judgment, to be set aside by the said Circuit Court and held for naught, he, the said plaintiff, can have or claim no title to said property through or by means of said levy or sale.
    3d. That the judgment in favor of Wheeler v. Kimmel, purporting to have been rendered in the United States Circuit Court at Detroit, in June, 1863, .and which the plaintiff has given in evidence in this suit, cannot avail the plaintiff to give him title by relation back to the time of the alleged trespass, and prior to the commencement of this suit, so as to enable him to maintain this action for trespass against the defendants.
    Which requests were refused and exceptions taken.
    Judgment was rendered for plaintiff below for $1890.

      E and D. Bacon, for plaintiff in error.
    1. The said attachment proceedings gave no title, because the defendants in. said proceedings had transferred to Warren Wheeler all their title by means of the chattel mortgage given in evidence, being before the attachment, and who had entered into possession of the property. — 3 Mich. 104; 4 Id. 295 ; 24 Ill. 633.
    2. Because the evidence shows that said proceedings were, on motion of defendant in error, set aside and held fo,r naught by the court below; and George Kimmel’s affidavit to obtain a new execution in the attachment suit is a sworn disclaimer of all title to the property in question.—1 Cowen, 711, 622; 1 Mich. 105; 2 Caines, 61; 2 Hammond, 395; 1 Dana, 419; 4 Mass. 99; 2 Aikens, 299; 23 Pick. 465; 3 Hill, 371.
    3. The record of Warren Wheeler’s proceedings in the action of trespass in the United States Court, through which the plaintiff claims title, was inadmissible and useless in evidence; the judgment being long subsequent to the commencement of this suit. — 5 Johns. 54 ; 6 Id. 44; 2 B. Monroe, 490; 10 Mich. 496 ; 8 T. R. 330; 39 Me. 448.

      F. Muzzy, for defendant in error.
    The objections to the admission of the proceedings in the case of Wheeler v. Wheeler in the United States Court resolve themselves into a question of irrelevancy.
    A judgment will not be reversed on account of the admission of irrelevant testimony. — 7 Blackf. 598.
    Possession was sufficient for the plaintiff to maintain this action, unless the defendant showed title.
    Though the levy and sale were in part set aside, the court will regard as done, what was intended. The application was after Kimmel had paid the judgment in the United States Court, and made under section 4482 of Comp. Laws.
   Christiancy J.

The plaintiff below (defendant in error,) failed to establish any right of recovery in this action of trespass against the defendants. He based his claims upon two grounds, not very consistent with each other: First, The levy and sale under the attachment in a suit brought by himself against the two Howes and Bridgman, which could give him no right of property or possession, if the defendant in the attachment had none: Second, Upon the judgment obtained by Wheeler against himself in the United States Court for the trespass, in taking the same property, and his satisfaction of that judgment, which he claims had the effect to vest the property in himself; a result which could only follow from the ownership of the property by Wheeler, at the very time when it must have been owned by the Howes and Bridgman, to maintain his right under the attachment.

But without reference to the inconsistency of these two grounds — upon which we do not rest our opinion — it is sufficient for the decision of this cause that he fails to show any right of recovery upon either.

The attachment, levy, and sale to the plaintiff could vest in him no right to the property, nor tend in any degree to support his action, for two reasons, either of which is sufficient: First, The attachment suit was against the two Howes and Bridgman; and, at the time the property was taken uj>on the attachment it was in possession of Wheeler under the chattel mortgage, previously executed to him by them, the time of payment having expired, and the mortgage, by its terms, become absolute; and it continued in his possession" under the mortgage up to the time of sale. The property, therefore, was not subject to attachment or sale in the suit against the Howes and Bridgman, the mortgagors.—Tannahill v. Tuttle, 3 Mich. 104; Eggleston v. Mundy, 4 Mich. 295.

But, Second, Had there been no mortgage in the case, and the attachment and sale had been valid, the subsequent order of the court in the attachment suit, granted upon the plaintiff’s own affidavit and motion, setting aside the levy and sheriff’s return of sale, and giving a new execution, on the ground that the property did not belong to the defendants in the attachment, Avould effectually bar any claim of the plaintiff to the property or possession acquired by the attachment and sale.

As to the second ground upon which the plaintiff sought to maintain his action, the judgment against himself in favor of Wheeler, in an action of trespass for taking and carrying away the same property, and the satisfaction of that judgment, we think it equally unavailable against these defendants in an action of trespass, whatever might have been its effect in an action of trover.

Admitting, for the purposes of this case, that the recovery of that judgment by Wheeler and its satisfaction by the plaintiff had the effect, as between them, to vest the right- of property and the possession in the plaintiff; and that, as between them, it related back so as to perfect the plaintiff’s title from the time of the trespass for which that judgment was obtained, still it could not affect the defendants in this suit so as to make them trespassers as against the plaintiff, as the declaration was for a taking which occurred more than two years before that judgment was obtained. There is no evidence in the case tending to show that at any time during the period covered by the declaration, or for two' years after this suit was commenced, the plaintiff had any right whatever to the property or its possession, nor tending to show that in obtaining the possession of the property the defendants were guilty of a trespass against any one, much less against the plaintiff. And whatever effect the recovery and satisfaction of Wheeler’s judgment against the plaintiff may have had, as between them, by relation back, it cannot by such relation make the defendants trespassers for acts which did not constitute a trespass as against tbe plaintiff at tbe time tbey were committed. — Liford's Case, 11 Coke, 51; Menvill's Case, 13 Coke, 21; Case v. De Goes, 3 Caines, 261; Smith v. Milles, 1 T. R. 480; Balme v. Hutton, 9 Bing. 471; Jackson v. Bard, 4 Johns. 234; Jackson v. Douglass, 5 Cow. 458.

Tbe court below was requested, but refused, to charge in accordance witb tbe principles above expressed. The judgment must be reversed, witb costs, and a new trial granted.

Tbe other Justices concurred.


author: Cooley J.

text:
    The President, Directors and Company of the Peninsular Bank v. James Hanmer.

      Contract by coiporation. Agent, authority of affirmed by acquiescence in his• acts. A contract was entered into by the cashier in behalf of a bank, by which security was given by a debtor, on long time, to a creditor, in the interest and on the motion and arrangement of the cashier, who, in order to procure the assent of the creditor, made and delivered a bond of indemnity against a prior mortgage on the property covered by the collateral security. The bank received the benefit of this transaction, and defended the creditor against a suit to foreclose this prior mortgage. Held, that the bank could not dispute the authority of the cashier to execute the contract of indemnity.*
    Cashier, general authoi'ity of. The extent of the general authority of the cashier of a bank is a question of law (F. &M.Ban7c v. ■ Ti'oy City Bank, 1 Doug. Mich. 457), and, in the absence of proof to the contrary, he will be held to have authority to turn out assets of the bank in payment of its indebtedness. — Kimball v. Cleveland, 4 Mich. 606.

      Contract must be affirmed or rescinded in toto. Having appropriated the benefits of a contract, the bank must affirm or rescind in toto. It cannot disaffirm.it as to those parts which impose an obligation, and affirm it so far as it operates to its advantage.

      Heard April 7th and 10th.

      Decided April 24th.

    Error to Wayne Circuit.
    Hanmer sued tbe bank upon an agreement of indemnity signed by H. H. Brown, cashier of tbe bank, and sealed witb tbe corporate seal, and wbicb was in tbe following words, to wit:
    “ In consideration of one dollar to tbe President, Directors and Company of tbe Peninsular Bank in band paid by James Hanmer, they do hereby agree to and with said Hanmer that they will indemnify and save harmless the- said Hanmer and his assigns of and froin all loss or damage by reason of or growing out of a certain mortgage heretofore made by Nathaniel P. Jacobs and wife to Chas. Seymour, dated August 4th, 1855, recorded in Liber 28, p. 669, and upon which there is now due the sum of eleven hundred dollars, or thereabouts; said mortgage having been given and executed on lot six in military reservation in the city of Detroit, being the N. W. corner lot of Fort and "Wayne streets. Said Hanmer having this day taken a mortgage on said premises for five thousand dollars, this instrument is intended to operate as a full indemnity- and protection to him against the first mortgage hereinbefore described. In witness whereof, the said parties of the first part hereto have set their official seal and the name of their cashier.
    On this 15th day of September, 185V.
    [Seal.] H. H. BROWN, Cashier.

    In presence of D. Bethtjne Duebteld.”
    Defendant plead the general issue, and denied by affidavit the execution of said instrument declared upon.
    The facts were as follows: In September, 185V, the bank was much embarrassed. ' One N. P. Jacobs was- largely indebted to the bank and had failed to meet his paper. Hanmer kept his account at the bank, and had over $5000 to his credit. Brown wished to get this amount to apply on Jacobs’ debt. He therefore proposed to Hanmer that he should loan this sum to Jacobs, to be secured by Jacobs’ bond and a mortgage on his property. On this property was a prior mortgage which had been made by Jacobs to Chas. Seymour, and which Jacobs claimed had been satisfied. Hanmer was willing to make the loan, but only on condition that the bank should indemnify him against said prior mortgage. He knew that his money, if loaned, was going directly to the bank. He did not see Jacobs at all in the transaction. The bank gave the indemnity by Brown. The money went directly to the bank without going into the hands of Jacobs.
    The Seymour mortgage was afterwards foreclosed, and the bank, being notified by Hanmer, defended the case by its attorney. Hanmer was obliged to pay about $1800 under the foreclosure decree. Hanmer then sued the bank on its indemnity in assumpsit, and recovered a verdict.
    This last case the bank now brings to this Court on error. The bank defends on the ground that Brown had no authority to give the indemnity. There were fifteen assignments of error; The first eight arise on questions of evidence. The other seven on instructions given the jury, or requests refused.
    The Court held, and instructed the jury in substance that the authority of Brown to bind the bank by the indemnity was, on the evidence, a question of fact for the jury; and that if the jury found that the directors and stockholders had for years permitted the entire control and management of the bank to Brown, and this business had been done by him for the benefit of the bank, this would authorize the jury to find for the plaintiff.
    This doctrine the defendant denied, and insisted that the bank could not be liable unless express authority was shown from the directors to the cashier to execute this instrument, or like instruments before' this.

      D. C. Holbrook, for plaintiff in error.
    1. The authority of the cashier was a question of law for the court, and no implied authority of the cashier was shown.—1 Doug. Mich. 457; 21 Barb. S. C. 196; 5 Denio, 283, 520; 36 Barb. 332; 14 Id. 358.
    The giving of indemnities is not a part of the general duty of a cashier, and there was not shown any resolution giving^ him authority. —12 Barb. S. C. 196.
    The only other way he could get it was by the acquiescence of the directors with knowledge of such previous acts.

      G. V. N. Lothrop, for defendant in error.
    1. An agent of a corporation, like an agent of a natural power, may be appointed by parol, and he may derive his authority from express or implied delegation. In this country this proposition now needs no citation of authorities. — 1 Doug. Mich. 110.
    2. And when an agent is held out, or permitted to hold himself out, as clothed with any power, it may be presumed that he has been clothed with such power in due form. — 12 Wheat. 70; 12 Barb. 67; 26 Me. 428; 86 E. L. & Eq. 142.
    3. The authority of the agent may be implied or presumed from the conduct, active or permissive, of the corporation.— A. & A. on Corp. 270 (3d ed.); 14 Barb. 358; 10 Rich. S. C. 95 ; 21 Wend. 296.
    And this is equally true, though his acts are in violation of the corporate by-laws. — 1 N. Y. 290; 12 Cush. 1.
    4. All the contracts made by a cashier, within the powers of the bank, are good, where he is suffered by the directors to take the general management of the bank. — 4 Bosw. 420; 11 Ohio St. 153; 32 Barb. 9.
    And the same is true of agents of other corporations. — 34 N. H. 378; 14 Barb. 361; 17 Ill. 40; 7 Metc. 222; 1 Allen, 34.
    It matters little in this case what are the ordinary powers of a cashier. The evidence shows that under the name of cashier Brown Avas sole and absolute Manager of the bank. From June 1851, till September 27, 1857, there had not been a meeting of stock holders, and no election of directors.
    5. Brown, as sole general manager, was authorized to use the corporate seal, where he thought it required, in the conduct of its laAvful business. No formal vote is necessary to enable a cashier to affix the seal. — 7 Hill 91; 4 Mich. 608.
    Nor is it of any consequence that the by-laws made the president the custodian of the seal. The by-laws were dead letters even in the bank, and when they ceased to be observed there, they were inert outside. — 1 N. Y. 292.

      6. If a corporation, knowingly claims, retains, or uses the benefits of a contract made by its officers or ag-ents, without authority, this amounts to a ratification.—7 Cranch, 209; 1 Pick 372 ; 19 Johns. 60; 24 Me. 36; 11 Ohio, N. S. 153.
    And mere acquiescence will imply ratification.-19 N. Y. 207.
    7. A cashier of a bank has authority to collect debts due the bank, and to take all usual means to do so. He needs no special delegation of authority to borrow money for the bank. It is an ordinary power. — 15 N. Y. 9; 19 Id. 152.
   Cooley J.

The action was brought by Hanmer in the Court below upon a contract executed in the name of the bank by Brown, its cashier, to indemnify Hanmer against a certain mortgage made by Nathaniel P. Jacobs and wife to Charles Seymour. The contract is under the corporate seal, but it is claimed by the bank that it was entered into without authority, inasmuch as there was no action of the directors authorizing it, and the ■by-laws required all contracts to be signed by the president. On the other hand Hanmer produced evidence that for a considerable period before and after the giving of this paper, the whole management of the bank was virtually in the hands of Brown; the directors seldom or never meeting unless to declare dividends, and very little attention being paid to the rules prescribed by the by-laws for the transaction of business. The case comes before us on exceptions, and the assignments of error relate mainly to the admission of evidence tending to show such a course of business on the part of the bank as should make this contract binding upon it, and to the rulings of the Circuit Judge thereon.

In order to judge of the importance of this testimony and the rulings, it is necessary to look at the transaction out of which this contract of indemnity grew. The date of the instrument was September 15, 1857. Brown’s testimony was taken in the ease, and he testified as follows: “ There was great financial trouble here then. The bank owed Hanmer over $5,000; he told me he did not want the money, but wanted to be sure it was secure. I told him I thought I could negotiate a loan, by which the bank would be benefitted, and place his money where it would be secure. Jacobs owed the bank; on my insisting that he should reduce his debt to the bank, he agreed to mortgage his house on Fort street; I then made the negotiation; Jacobs assuring me that the property was unincumbered except a conditional mortgage to secure the payment of the purchase money of property at the comer of Jefferson Avenue and Wayne street, bought of Seymour and Martin: subsequently he brought me a discharge of the mortgage. After the mortgage to Hanmer had been made out, an abstract of title to Jacobs was procured, showing one or two mortgages on it. I then told Hanmer the facts as Jacobs had stated them to me, -and told him there could be no difficulty as Jacobs had performed his contract with Seymour. Hanmer was not satisfied. I referred Mm to Mr. Duffield, and told him that the Bank would indemnify Mm against the Seymour mortgage. Mr. Duffield prepared the indemnity bond, and I signed and executed it. Hanmer paid the money to the bank, and the bank gave Jacobs credit to that amount on its books, and so reduced his indebtedness.”

It will be seen from this evidence that the transaction resulting in this contract, was one originated and managed by Brown, not primarily for the benefit of either Jacobs or Hanmer, but of the bank itself. The bank held $5,000 of Hanmer’s money, which was liable to be drawn out at any time, but which the bank officers were anxious to retain. At the same time they were desirous of obtaining either payment or security from Jacobs. Through Brown’s management the two operations of obtaining ready money on the debt of Jacobs, and paying their own debt to Hanmer in long paper, were combined in one, by taking the security from Jacobs to Hanmer, instead of having it made to the bank and then assigned to Hanmer. Jacobs and Hanmer did not deal with each other at all in the transaction, but both with the bank ; and the mortgage which Jacobs gave was really given to secure his debt to the bank, and was only made to Hanmer because, under the arrangement made by Brown, the bank was to pay a debt of equal amount with it. We are unable to perceive that this case stands on any different footing than if Brown had first obtained securities from Jacobs to the bank, and then transferred them to Hanmer in satisfaction of his deposits.

We have then to see whether a guaranty, given by the cashier in the name of the bank, on turning out its assets in satisfaction of a demand against the bank, is binding upon the corporation under the circumstances appearing here. The extent of the general powers of the cashier of a bank'is a question of law. — Farmers' and Mechanics' Bank v. Troy City Bank, 1 Doug. Mich. 451. In the absence of proof to the contrary, he will be presumed to have authority to turn out the notes and assets of the bank in payment of its indebtedness. — Kimball v. Cleveland, 4 Mich. 606. There is nothing-in the by-laws put in evidence in this case which can fairly be held restrictive of this power. But no such payment can be held to be an absolute discharge of the original indebtedness unless agreed to be accepted as such; and the question here is not so much whether Brown had authority to give the contract of indemnity, as whether Hanmer assented to receive the mortgage in payment, without an indemnity. If he did not, — as is clear in this case, — then this indemnity contract is either valid and available to Hanmer, or Ms original demand against the bank is still due Mm, subject only to a deduction of what he has made from the Jacobs mortgage. Admitting the- contract by Brown to be in excess of Ms authority, the bank could only affirm or rescind it in toto ; it was not in its power to rescind it so far as it imposed an obligation upon the bank, and affirm the transaction so far as it operated to its advantage.

The bank has never repudiated the authority of Brown to enter into this contract; all that has been done has been in affirmance of it. The bank defended Hanmer in the suit brought to foreclose the Seymour mortgage, and after decree against him, removed the case to the Supreme Court. A disaffirmance now, after Hanmer’s money, obtained by means of it, has been retained for a period sufficiently long for the statute of limitations to run against his demand, could not be justified on any legal principle.

It does not become necessary to consider in this case whether the general power of the cashier to apply the assets of the bank in payment of its indebtedness, would include also a power to guarantee their collection or availability. The contract actually given in this case must be held to be affirmed by the subsequent acquiescence of the corporation, and to be now binding upon it.—Episcopal Charitable Society v. Episcopal Church, 1 Pick. 372; Hayward v. Pilgrim Society, 21 Id. 270; Randall v. Van Vechten, 19 Johns. 60.

In our view there is no error in the record of which .the bank can complain, and the judgment must be affirmed, with costs.

The other Justices concurred.