text:
    McKNIGHT v. DETROIT & MACKINAC RAILWAY CO.
    1. Physicians — Reasonable Value of Services — Evidence.
    In an action against a railroad company by a physician to recover for services rendered at the time of a wreck, testimony by another physician as to the amount received by him for services rendered on the same occasion is inadmissible as bearing on the reasonableness of plaintiff’s charges.
    3. Same — Credibility of Witnesses.
    In an action by a physician for professional services, counsel for plaintiff, on the cross-examination of physicians called by defendant, showed them a copy of plaintiff’s bill of particulars, and asked them whether, when the paper was exhibited to them before trial, they did not state that the charges were reasonable; and, after showing that the statements were made, the paper was introduced in evidence. Held, that, the evidence having been limited to the single purpose of contradicting the witnesses, it was competent.
    3. Same — Expert Testimony.
    In an action by a physician for professional services, a physician who has heard plaintiff’s testimony with reference to the services may be asked for his opinion as to their reasonable value. ;
    4. Same — Objections—Sufficiency.
    In such case an objection to the question, on the ground that the witness did not see the person treated, is insufficient to warrant the contention on appeal that it did not appear that he was acquainted with all the facts and circumstances of the treatment.
    •5. Same — Trial—Exhibiting Injuries to Jury.
    In an action by a physician to recover for services rendered to a railroad company at the time of a wreck, a witness who was injured in the wreck, and treated by plaintiff, cannot be compelled to exhibit his leg to the jury.
    -6. Same — Conduct of Counsel.
    Counsel for plaintiff, in the argument, referred to the wreck, and to the fact that it was caused by a blunder on the part of defendant. An exception having been taken to the remark, counsel withdrew it, and asked the jury not to consider it; and the court stated that it was an improper remark, and ought to be withdrawn. Held, that the remark was not prejudicial error.
    7. Same — Instructions.
    The court having, by its instructions, clearly limited plaintiff’s recovery to such sum as would compensate him for his services, a refusal to instruct that neither plaintiff nor any number of physicians could fix upon an arbitrary amount to be charged therefor was not error.
    8. Same.
    An instruction that it did not make any difference how many people plaintiff attended, — that he was only entitled to reasonable compensation for the time expended by virtue of his employment, — was properly refused.
    Error to Alpena; Emerick, J.
    Submitted October 9, 1903.
    (Docket No. 34.)
    Decided January 5, 1904.

      Assumpsit by Edward E. McKnight against the Detroit & Mackinac Bailway Company for services rendered. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Charles B. Henry, for appellant.

      Collins & D'Aigle and I. S. Canfield, for appellee.
   Montgomery, J.

This is an action of assumpsit, brought by plaintiff in the circuit court for the county of Alpena, to recover for medical and surgical services rendered by him 'and his assignor, William A. Secrist. On June 8, 1902, at about 8 o’clock a. m., defendant’s excursion train left Alpena for East Saginaw, and ran off the track and was wrecked at Black Biver, 24 miles from Alpena. A large number of persons were injured, and one killed, in the wreck. A number of physicians, among whom were plaintiff and his assignor, Dr. William A. Secrist, were immediately procured by defendant, and left Alpena on a special train for Black Biver to attend to the wounded. On arriving at Black Biver, plaintiff and Dr. Secrist gave their immediate attention to those who wer the most seriously injured, in the presence of Mr. C. W. Luce, the superintendent 'of defendant. After having been made as comfortable as possible, the injured were taken on a special train back to Alpena, under the care of the physicians. Some were taken to their homes; others, to the Alpena hospital. At Alpena some of the patients .who had been temporarily attended by other physicians at Black River fell into the hands of plaintiff and Dr. Secrist, who attended them until they were cured, which increased the number of their patients to 15. And for the care and treatment of those patients the plaintiff claims, according to the amount sworn to by him and Dr. Secrist, $941. The controversy on the trial was confined to the question of the reasonableness of the charges made by plaintiff and Dr. Secrist. Error is assigned upon rulings of the court in receiving evidence objected to, and excluding testimony offered by the defense. Error is also assigned upon remarks by plaintiff’s counsel, and upon the refusal of the court to give certain requests of the defendant.

Dr. Bertram was a witness for the defendant, and was one of the surgeons at Black River on the day of the accident. He testified that he attended about 15 patients; that some he had charge of two weeks, and some three or four; and that he had settled with the company for his services. He was then asked what he received from the company for his services on the 8th and 9th of June. This was objected to ánd excluded. We think no error was committed in this ruling. The doctor was permitted to testify fully as to the reasonableness of the plaintiff’s charges, and evidence of what he received for the services he rendered would have opéned the question as to how his services compared with the plaintiff’s, and would have involved the trial of an additional case.

Plaintiff, on the cross-examination of this and other witnesses of the defense, showed to the witnesses a statement which was substantially a copy of the bill of particulars of the plaintiff for services rendered, and the witnesses were asked whether they had not, when this paper had been exhibited to them previous to the trial, stated that the charges contained therein were reasonable; and, after showing that such statements had been made, the-paper was offered in evidence and received. Error is assigned upon this ruling. The circuit judge limited the testimony to the single purpose of contradicting the witnesses, and for this purpose we think it was competent.

Error is also assigned upon the ruling admitting the testimony of Dr. Dunlop, who testified that he had heard the greater part of the testimony of Drs. McKnight and Secrist as to the services rendered by them on various occasions, and the amount of the charges for such services,, and he was asked whether the charges were reasonable- and just. This was objected to as incompetent on the ground that the physician did not see the people treated. It is argued in the brief of counsel that the question should have been excluded because it did not appear that the doctor was acquainted with all the facts and circumstances relating to the treatment. We do not think this point was directed to the attention of the trial court. That it was competent to call for the opinion of the witness upon the-hypothetical state of facts is perfectly clear, and it was the duty of the defendant’s counsel to put his objection upon the ground now urged if he expected this court to-consider this point.

One Ernest Legatski was, among others, injured in the wreck, and was treated by Drs. McKnight and Secrist. He was called to the stand as a witness for the defendant, and was asked to exhibit his leg to the jury. This he declined to do, and the court refused to compel him to do so. Error is assigned upon this ruling. We think this ruling was correct. The case is quite unlike the case of Graves v. City of Battle Creek, 95 Mich. 266 (54 N. W. 757, 19 L. R. A. 641, 35 Am. St. Rep. 561), as in that case the question was whether a party to an action could be required to submit her arm at the point of the alleged fracture, where such exhibition would cause no shook to the sense of delicacy. This decision was rested upon the ground that, where a person appeals for justice, he impliedly agrees in advance to make any disclosure that may be necessary to be made in order that justice may be done. This witness occupied no such relation to the cause, and himself objected to exhibiting his leg, and the circuit court correctly ruled that he had the right to so object.

It is strenuously insisted that the case should be reversed on the ground of misconduct of counsel. Counsel for plaintiff, in the argument, referred to the wreck at Black Eiver, and to the fact that it was caused by a blunder on the part of the defendant. When this statement was made, the following occurred:

Mr. Henry: I want an exception to that remark.
The Court: Well, I will remember it.
“Mr. Canfield: I will say, your honor, that, if Mr. Henry takes an exception to it, I withdraw it. I do not care whether they blundered or not. So far as my stating that they did blunder, I withdraw it, and ask the jury not to consider it.
“ Mr. Henry: I desire an exception to the fact that he stated that somebody blundered.
“The Court: I cannot give you an exception, because I instruct the jury here, now, that there is no evidence in the case that any one blundered, and it was an improper remark, and counsel will withdraw it.
“Mr. Canfield: Eecognizing it as such.
“The Court: Yes.”

From this colloquy the jury could not fail to understand that the question of whether anybody blundered in connection with the wreck was wholly foreign to the issue before them. Not only this, but the counsel who made the remark withdrew it, and asked the jury not to consider it. The court characterized it as an improper remark, and the counsel withdrew it, recognizing it as an improper remark. Nothing more could have been done, except to stop the case and discharge the jury. True, this is not the final test; but it would seem a reflection Upon the intelligence of the jury to assume that, after the plaintiff’s counsel had thus acknowledged his fault and withdrawn the remark, they would still give weight to this argument. I cannot bring myself to believe that this remark could have affected the result.

Counsel for the defendant presented two requests:

“Second. There were no amounts ever agreed upon by and between the plaintiff and the defendant for the services performed or to be performed, and, if the defendant is liable at all for any professional services rendered by the plaintiff or by Dr. Secrist, it is only liable in such an amount as would be reasonable and fair under all the circumstances. The plaintiff has not the right to fix an arbitrary fee, nor can any number of physicians agree upon a fee to be charged. They are entitled to receive, if anything, what their professional services are worth in the community in which they rendered them, and no more.
Third. If the defendant in this suit is liable at all, it does not make any difference how many different individuals plaintiff attended. The plaintiff was rendering professional services for the defendant, and the fact that he spent a portion of his time during the day on different individuals does not necessarily give him the right to multiply his fees by the number of individuals treated. You should take into consideration the time that the plaintiff devoted to the individuals, the amount of professional services rendered, and pay plaintiff and his assignor such a sum as would fairly and reasonably compensate them for the time they devoted to the patients for which the defendant is liable.”

Error is assigned upon the failure of the circuit judge to give these requests. The circuit judge charged the jury, in substance, that, in estimating the value of a physician’s services, they should consider the professional skill and the experience of the physician, the nature and character of the services rendered, the difficulties and the nature of the case, and the amount of services rendered, and clearly limited the recovery to such a sum as, upon the evidence, the jury should find would compensate the plaintiff for the services rendered in this case. We think this sufficiently covered all that the defendant, by the first request above quoted, had the right to have given to the jury. It necessarily excluded the fact that an arbitrary fee might be fixed by the plaintiff or by any number of physicians; and, had the request been given, it might have led the jury to believe that the purpose was to disr credit the testimony of the witnesses for the plaintiff, who were physicians, and who had substantially agreed as to the value of the plaintiff’s services.

The other request involves the view that the plaintiff in this case, being called in the manner in which he was, ■ was working by day’s work. We think this was not necessarily the character of the employment, but that he and his assignor were called to render such services as were necessary to the injured parties.

We discover no prejudicial error, and the judgment will be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    KLINE v. M. GARLAND CO.

    1. Patents — Licenses—Liability for Royalties.
    Where a licensee of two patents, expiring at different times, agreed to pay royalties thereon during the life of the patents, his liability for royalties on the patent last expiring was not affected by the fact that, upon the expiration of the first patent, the devices covered by it might be used by manufacturers in general.
    3. Same — Duties of Patentee — Infringements.
    A contract whereby a patentee sells and assigns to another the exclusive right to manufacture and sell machines to which the patents may be applied, the patentee agreeing to protect the licensee from damages sustained by reason of any failure of the patents to protect such manufacture and sale, imposes on the patentee no duty to protect the licensee from infringements by other manufacturers.
    3. Same.
    The fact that a patentee, at the instance of his licensee, notifies infringers to stop their infringements, does not impose on the patentee the duty, which he did not assume in his contract of license, of protecting his licensee in that regard.
    Error to Bay; Shepard, J.
    Submitted October 9, 1903.
    (Docket No. 40.)
    Decided January 5, 1904.

      Assumpsit by Lewis T. IOine against the M. Garland Company for royalties on certain patents. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.
    Plaintiff was the sole owner of two letters patent issued by the United States, — one for new and useful improvements in log-rollers, dated May 22, 1883, and the other for new and useful improvements in log-rolling devices, dated February 7, 1888. Mr. M. Garland, desiring to enter upon the manufacture and sale of these machines and others to which said patents could be applied, entered into a contract with plaintiff by which plaintiff “hereby bargains, grants, and sells unto said Garland and his assigns the exclusive right to manufacture and sell in any part of the United States of America (excepting Alpena county), during the term for which said letters patent are granted, log-rollers, log-deck and other machines to which said patents can be applied.” Mr. Garland agreed to pay certain royalties, to be paid within three months after the date of shipment. All improvements by plaintiff were included in the contract. Mr. Garland agreed to use all judicious means to place the machines on the market and advertise them. Garland reserved the right to terminate the contract on six months’ notice. If Garland failed to supply the demand, then plaintiff was to have the right to manufacture and sell. Garland agreed not to manufacture or sell any other machines which should be in competition with those covered by plaintiff’s patents. The contract also contains the following clause:
    “Said Kline, his heirs and assigns, agree to protect and save harmless said Garland, his heirs and assigns, from all damages they may sustain by reason' of any failure of said patents to protect the manufacture and sale of said machines, but said Garland shall use his best-endeavors to assist said Kline in protecting his said patents without any charge.”
    This contract was executed February 28, 1888. Garland assigned it to the defendant, the M. Garland Company, and all its rights and obligations are governed by the contract. Mr. Garland is the defendant’s manager.
    The first patent expired May 22, 1900. The other one is still in force. Defendant continued the manufacture and sale of the machines, and to pay for them, until August 1, 1900, when it declined to pay further, although it continued to manufacture the machines. The royalties on 24 machines sold between August 1, 1900, and May 7, 3901, became due. Defendant refused to pay them, claiming (1) that they expired with the expiration of the first patent; (2) that, through the expiration of the first patent, and plaintiff’s failure to prevent manufacture by others, defendant had been evicted from.the enjoyment of its license, and deprived of the exclusive right of manufacture, which was the consideration or subject-matter of the contract. It sought also to recoup damages for plaintiff’s failure to prevent the manufacture of unauthorized machines. At the conclusion of the testimony the court directed a verdict for the plaintiff, holding that the contract did not expire until the expiration of the second patent, that there was no eviction or failure of consideration, that defendant had waived its rights by failing to terminate the contract, that the claimed damages were too indefinite to form a basis of recoupment,-and that the defendant had not performed its duty under the contract in giving actual notice to plaintiff of the manufacture of each unauthorized machine.

      Simonson, Gillett & Clark, for appellant.

      I. S. Canfield (T. A. IS. & J. C. Weadock, of counsel), for appellee.

       Rehearing denied April 36, 1904.

   Grant, J.

(after stating the facts). We deem it essential to discuss and determine only two of the questions raised: (1) Did the contract terminate with the expiration of the first patent ? (2) Did the plaintiff covenant or contract against the unlawful or fraudulent manufacture of these devices by others ? If these two questions must be answered in the negative, the other questions become immaterial.

The contract is entirely free from any ambiguity. It cannot possibly be misunderstood. It covers two letters patent; one terminating in 1900, and the other in 1905. Mr. Garland expressly agreed to pay the royalty upon the devices under the secohd letters patent during its life. His liability under his contract is not affected by the fact that, upon the expiration of the first patent, the devices covered by it might be used by manufacturers in general. Plaintiff, as patentee, assigned to Mr. Garland the use, manufacture, and sale of all these devices during the entire lives of both letters patent. It was an absolute sale, not for cash, but for royalties, but subject to forfeiture for failure to perform. Neither Mr. Garland nor his assigns could continue to manufacture the devices covered by the second patent, and refuse to pay royalties. He might have rescinded the contract by giving six months’ notice, but in no other way could he avoid his obligations under it. Under defendant’s construction of the contract, if, when it was made, the first letters patent would have expired in one year, then it would have been a contract for only one year, although the second letters patent had 15 years to run. To sustain this contention would in fact terminate the letters patent before the time fixed by law for its expiration, or at least would suspend its operation, as to Mr. Garland and his assigns, so long as they chose to manufacture the machines. Defendant was manufacturing machines under its contract with plaintiff. Its counsel do not contend that it was not. It cannot now be heard to say that it was not operating under the contract, and was manufacturing machines illegally. So long as defendant manufactures and sells, it must pay; This case does not come within the rule enunciated in Sproull v. Pratt & Whitney Co., 101 Fed. 265, where it was held that a contract to manufacture and pay royalties under a number of patents relating to the same art, and expiring at different times, should not be so construed as to require payment of the same royalty after all the patents but one had expired, where the goods manufactured were capable of being separately used, were ordinarily sold for separate iise, and only “small portions of the goods were covered by the remaining patent.” As we read the two letters patent in this case, we understand that they are not issued upon any single piece, but upon all in combination to accomplish certain results.

There is no language in this contract which either expressly or impliedly imposed upon the plaintiff the duty to protect .Mr. Garland or his assigns from the unlawful manufacture and sale of the like devices by other manufacturers. Counsel cite no authorities to sustain their contention that that duty was imposed upon the plaintiff under a similar contract. His sole contract was to defend his own letters patent against attacks by others. Whether, under the United States decisions, Mr. Garland would be termed a licensee, so that the rule as to eviction would apply, is immaterial. After the assignment, plaintiff had no control over the manufacture or sale of the articles. He did not agree to investigate and ascertain whether other manufacturers were infringing, or to prosecute those who did infringe. The correspondence between the parties, covering a period of many years, upon this point, cannot be held to change the plain terms of the contract. Plaintiff was equally interested with the defendant in preventing infringements. At the request of defendant, plaintiff wrote to all the parties who defendant informed him it heard were infringing, calling for explanations, and notifying them not to infringe upon his patents, which were owned by the defendant. To these, replies were received denying any infringement. The fact that the plaintiff complied with the defendant’s request to look after these infringements did not read into this contract a covenant to protect the defendant against them. Without such a covenant or agreement, no such obligation exists. McKay v. Smith, 39 Fed. 556; National Rubber Co. v. Boston Rubber-Shoe Co., 41 Fed. 48. Cases holding that, where the patent is void, there is a failure of consideration which avoids the contract, do not apply to this case. Such is White v. Lee, 14 Fed. 789. Neither does the case of J. B. Brewster & Co. v. Tuthill Spring Co., 34 Fed. 769, apply. The patentee in that case sought to enforce the specific performance of the contract of license. The court found that the contract was harsh and oppressive, and virtually obtained by fraud, and left complainant to its remedy at law. In this case the patents were valid, and the defendant obtained the exclusive right to manufacture under them during their lives. Both plaintiff and defendant were jointly interested in preventing illegal manufacture. Defendant could have prosecuted for infringements. Instead of doing so, it reported rumors and hearsay statements of infringements, and endeavored to impose the cost of investigation and suits upon the plaintiff. In no instance did it itself take any steps to stop such illegal manufacture. It follows that the court was correct in directing a verdict for the plaintiff.

Judgment is affirmed.

Moore, C. J., Carpenter and Hooker, JJ., concurred. Montgomery, J., did not sit.


author: Carpenter, J.

text:
    MILLER v. HOFFMAN.
    1. Impounding Animals — Charges—Appraisal—Hearing.
    3 Comp. Laws, § 10698, declares that, if the owner of beasts which are impounded shall be dissatisfied with the claim of the impounder, he may have the amount for which he is liable determined by persons appointed for that purpose by a justice. Held, that, in view of constitutional principles, there is a necessary implication that the impounder shall have an opportunity to be heard on the award of the appraisers.
    2. Same — Replevin—Evidence.
    One impounding beasts refused to deliver them on tender of the amount found by appraisers to be his due, the award having been made without notice to him. In replevin by the owner, the award was admitted in evidence, but the court charged the jury that it was not binding. Held, that, it being apparent that the jury were influenced by the award, its admission was reversible error.
    3. Same — Damages—Penalty.
    3 Comp. Laws, §§ 10688, 10689, provide, in substance, that, when swine are distrained for “going at large” contrary to law, the distrainer shall be entitled to 10 cents per head. Section 10691 provides that when one is injured in his land by swine, etc., he may recover his damages by action, (or by dis-training them as thereinafter provided. Held, that, where swine trespassing on the land of another are distrained by the landowner, he is confined to his damages, and is not entitled to the penalty of 10 cents a head; the swine not being “at large,” etc., within the statute. '
    4. Same — Notice.
    3 Comp. Laws, § 10695, provides that, on the impounding of beasts, the impounder shall give the owner notice containing a statement of the cause of impounding. Held, that one impounding swine, and giving notice that the cause was their presence on his land, was bound by the notice, and could not thereafter claim the penalty given by sections 10688 and 10689.
    5. Appeal — Trivial Matters.
    While protracted litigation <¡>rer trivial matters may be regrettable, a party may prosecute his case to the court of last resort in the assurance that he will be protected in- his legal rights.
    Error to Lapeer; Smith, J.
    Submitted October 21, 1903.
    (Docket No. 55.)
    Decided January 5, 1904.
    Replevin by Martin Miller against Hubert Hoffman. From a judgment for plaintiff, defendant brings error.
    Reversed.

      W. E. Brown, for appellant.

      I. J. Kohler, for appellee.
   Carpenter, J.

This is an action of replevin to recover the possession of 16 hogs belonging to plaintiff, and dis-trained by defendant. Plaintiff and defendant own and occupy adjoining farms, situated in the township of Burnside, in the county of Lapeer. On the 9th of May, 1901, the hogs in question strayed from plaintiff’s premises onto the highway, and thence onto defendant’s premises. Defendant impounded the hogs, and notified plaintiff in writing, “Your hogs or shotes are on my premises, and you can get them by paying 50 cents a head for damages and trouble and feeding.” Plaintiff, thinking this charge extravagant, applied on the following day to a justice of the peace for appointment of appraisers. Two appraisers were appointed. They visited defendant’s premises during his absence, and appraised the damages at $1. Plaintiff tendered this amount. Defendant refused to deliver the hogs, and served a second written notice, more specific than the first, and at the same time made a verbal demand of 10 cents a head penalty. Thereupon this suit was commenced by plaintiff, who recovered a verdict in the court below. Defendant seeks a reversal of the judgment, for reasons which will be stated and discussed.

It is contended by the defendant that the court erred in admitting in evidence the award of the appraisers, because it was made without- giving him an opportunity of being heard. The statute which authorizes the award (see 3 Comp. Laws, § 10698) does not expressly provide that this opportunity shall be given. In our judgment, however, this is necessarily implied. It is repugnant to sound principles of constitutional law that one’s rights shall be determined by a proceeding which does not afford him that opportunity. See United States Trust Co. v. Insurance Co., 18 N. Y. 199; Pennoyer v. Neff, 95 U. S. 714; Cooley, Const. Lim. (6th Ed.) p. 431; Gilson v. Munson, 114 Mich. 671 (72 N. W. 994). The propriety of enforcing this principle is illustrated in this case. According to the testimony of one of the appraisers, there was included in the award no allowance whatever for feeding and caring for the hogs. Defendant was entitled to such an allowance (see sections 10693, 10694, 3 Comp. Laws), and, according to his testimony, it constituted the largest item of his claim.

It is urged by the plaintiff that for the error in admitting the award in evidence the judgment should not be reversed, because the trial court correctly instructed the jury that the award was not a binding determination. We think this is not a sufficient answer. The trial court left to the jury the issue of whether the $1 tendered was sufficient to compensate all the claims of defendant. We are persuaded that the jury, in finding that it was, was largely influenced by the incompetent award. We conclude, therefore, that the admission of the award in evidence was reversible error.

Defendant contends that the court erred in not charging the jury that he was entitled to a penalty of 10 cents ahead for taking up and distraining plaintiff’s hogs. This penalty of 10 cents a head is given when animals are taken up and distrained “for going at large contrary to law, or contrary to any by-law of a township.” Sections 10688, 10689, 3 Comp. Laws. Defendant distrained plaintiff’s hogs because they trespassed upon his land. In doing this he acted upon the authority contained in section 10691, 3 Comp. Laws. This section reads:

“When any person is injured in his land by sheep, swine, horses, asses, mules, goats, or neat cattle, he may recover his damages in an action of trespass or trespass on the case against the owner of the beasts, * * * or by distraining the beasts doing the damage, and proceeding therewith as hereinafter directed. ”

One proceeding under this section is by this language limited in his recovery to the damages. In other words, under the proper construction of the statute, beasts are not going at large contrary to law when they are trespassing upon the land of another.

Nor is defendant in a position to claim this penalty because these hogs had been at large in the public highway just before they trespassed upon his land. If one on whose land animals commit u trespass can ever exact the penalty under consideration because those animals have come onto the land from a highway (a point which we do not undertake to determine), defendant must be held to have waived that claim. The claim of the penalty is inconsistent with the claims asserted by defendant in the first notice served on plaintiff. He was bound in that notice to state “the cause of impounding.” 3 Comp. Laws, § 10695. Plaintiff was not informed by that notice that the hogs were impounded because they had been in the highway, and he had a right to act and did act upon the assumption that the cause of impounding therein stated was accurate.

We do not think the other errors relied upon raise any question which demands consideration.

It is to be regretted that the parties to this suit should have so much and so expensive litigation over so trivial a matter. We cannot, however, overlook the fact that grievances arising from small matters are often serious, and would be intolerable if they could not be redressed. It will greatly aid to secure a certain recognition of one’s rights in such matters if it is understood that they will certainly be enforced if an appeal is made to the courts. When defendant brings to this court litigation arising out of his attempt to enforce a clear legal right, though trivial it may be, bis claim to have the controversy decided by the appropriate rules of law cannot be denied; and as, in our judgment, the record in this case shows error to his prejudice, we do not, as we should not, hesitate to grant relief.

The judgment is reversed, and a new trial ordered.

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


author: Montgomery, J.

text:
    SHREEVES v. CALDWELL.
    1. Infants — Conveyances—Disaffirmance—Deed by Guardian.
    A conveyance of an infant’s land by her guardian during her minority cannot amount to a disaffirmance of a prior mortgage by the infant.
    2. Same — Homestead—Deed by Administrator.
    Where an infant and her husband mortgaged their homestead, a subsequent deed by the husband’s administrator did not disaffirm the mortgage.
    3. Same — Quitclaim.
    The giving of a quitclaim deed is not a disaffirmance of a mortgage given by the grantor during infancy.
    4. Trial — Theory of Parties — Appeal.
    Where, on the trial of an action of ejectment, both parties gave' the court to understand that the only question involved was the validity of certain mortgages, it could not be urged on appeal that there was a failure to show a valid foreclosure.
    Error to Benzie; Chittenden, J.
    Submitted October 21, 1903.
    (Docket No. 103.)
    Decided January 5, 1904.
    Ejectment by Helen A. Shreeves against Robert Caldwell and others. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Louisell & Nevius, for appellant.

      Farm O. Gilbert, for appellees.
   Montgomery, J.

This is an action of ejectment. In 1898 Homer O. Shreeves was the owner of the premises in dispute, which consist of 40 acres of land, worth about $500. Shreeves and his wife, May M., occupied the land as a homestead. In April and May of 1898 Homer C. Shreeves and his wife gave two several mortgages upon the land, and defendants claim title derived by foreclosure of these mortgages. Homer C. Shreeves died in June, 1898. The plaintiff is the mother of deceased, and claims under a deed from decedent’s father, and also under a guardian’s deed executed by the guardian of May M. Shreeves, decedent’s widow, under an administrator’s deed made by the administrator of Homer C. Shreeves’ estate, and finally under a quitclaim deed from May Provo, formerly May Shreeves. There was testimony tending to show that May Provo, formerly Shreeves, was a minor at the time of the execution of the mortgages in question. The circuit judge directed a verdict for the defendants, and the plaintiff brings error.

It is contended in this court that a deed executed by an infant feme covert stands upon the same footing as a deed executed by an infant feme sole, and that such deed or mortgage is voidable. This contention is not controverted, but the consequences which flow from this premise are viewed in quite different lights by the two counsel. It is manifest that a conveyance by the guardian of May during her minority does not amount to a disaffirmance of the mortgages, as such disaffirmance must take place after the majority is attained. 16 Am. & Eng. Enc. Law (2d Ed.), 288, 289. It is equally clear that, so long as the mortgages remained unavbided, a conveyance by the administrator of Ho'mer C. Shreeves passed no right to disaffirm the mortgages, as this right rested in May Provo. The question presented is whether the quitclaim deed executed by May M. Provo after attaining her majority amounted to a disaffirmance of the mortgages. The deed contained no mention of the mortgages, and, of course, no express disaffirmance, and can only be held to amount to a disaffirmance if the fact of giving such a deed is of itself an assertion of such an intention.

It has been held in a number of cases m this court that where one has, during minority, made a deed of land, and after reaching majority makes a deed to another, this amounts to a disaffirmance of the voidable deed. Haynes v. Bennett, 53 Mich. 15 (18 N. W. 539); Corbett v. Spencer, 63 Mich. 731 (30 N. W. 385); Prout v. Wiley, 28 Mich. 164. But, to constitute such second deed a disaffirmance, it must be inconsistent with the deed executed during infancy. 16 Am. & Eng. Enc. Law (2d Ed.), 290. In McGan v. Marshall, 7 Humph. 121, it was held that a mortgage of land given by an adult did not amount to a disaffirmance of a mortgage given during infancy. In the well-considered cáse of Singer Manfg. Co. v. Lamb, 81 Mo. 221, the question was distinctly presented, and it was held that a quitclaim deed could not be treated as a disaffirmance of a mortgage given during infancy, on the ground that both instruments could stand together; the deed not being inconsistent with the mortgage, and being operative to convey the equity of redemption. See, also, Eagle Fire Co. v. Lent, 6 Paige, 635. There was no error in the ruling of the circuit judge on this point.

It'is further contended that, as no legal foreclosure of the mortgages was shown, the plaintiff was, in any view, entitled to recover. At the opening of the trial, plaintiff’s counsel stated:

“The only question involved, as we understand it, is the legality and validity of these mortgages. If these mortgages are valid, and there is no defect — no irregularity — in the foreclosure of these mortgages, then we are not entitled to recover.”

Later in the case, when the subject of disaffirmance was under discussion, and after hearing counsel on both sides upon the proposition to direct a verdict for defendants, the court said, “This matter, in my opinion, resolves itself into a question of law entirely.” Plaintiff’s counsel responded, “ Exactly.” We think the circuit judge had the right to understand, and did understand, that the question discussed was treated and considered by both parties as controlling.

Judgment affirmed.

The other Justices concurred.


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    COLE v. POTTER.
    1. Justices op the Peace — Judgments—Collateral Attack— Residence op Parties.
    A justice’s judgment, regular on its face, cannot be impeached, in a collateral proceeding by showing that neither of the-parties lived in the township where the justice resided, nor in. an adjoining township.
    2. Same — Transcript—Statute op Limitations.
    A justice’s judgment, when docketed on transcript in the circuit court, becomes a judgment of a court of record, to which the 10-year statute of limitations applies.
    3. Same — Docket Entries — Time op Appearance.
    A justice’s docket entry reciting: “December 12, 1891, 10 o’clock a. m. Cause called. The plaintiff appears in person, with E., his attorney. Defendant does not appear. After waiting one hour, and defendant not appearing,” etc., —sufficiently shows that plaintiff appeared within the hour.
    4. Same — False Transcript — Collateral Attack.
    A justice’s judgment, docketed on transcript in the circuit-court, cannot be attacked collaterally by showing that the-transcript filed is not a true transcript.
    Error to Gratiot; Stone, J.
    Submitted October 20,, 1903.
    (Docket No. 46.)
    Decided January 5, 1904.
    Debt by Seneca M. Cole against Elon Potter upon a judgment. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      W. A. Leet and Julius B. Kirby, for appellant.

      John M: Ever den and John T. Mathews, for appellee.
   Montgomery, J.

This is an action upon a judgment in the circuit court for the county of Gratiot, which consisted of the transcript of a judgment rendered before a justice of the peace, and regularly filed and docketed in the office of the clerk of the court. On the trial of the case a special finding of facts was filed, by which it appears that there was filed in the clerk’s office a transcript of judgment obtained before one Giles T. Brown, a justice of the peace, of $211.52, on the 12th day of December, 1891. This transcript was filed on the 13th of February, 1893. The docket entry of the judgment read as follows: “ Township of Ithaca, December 12, 1891, 10 o’clock a. m. Cause called. The plaintiff appears in person, with John M. Everden, his attorney. Defendant does not appear. After waiting one hour, and defendant not appearing,” etc. It was claimed, and the defendant offered testimony to show, that, at a time after the entry of this judgment in justice’s court, the judgment had been canceled by drawing lines across it, and by a memorandum in the margin stating that the plaintiff’s attorney asked the justice to treat the whole proceedings in the case as a nullity on account of the court not having jurisdiction of the parties, in which case he deemed any judgment that might be rendered void, and by also showing that there were entered on the margin of the judgment the words, “ Execution issued and delivered to J. P. King, sheriff.”

It was contended that the justice had no jurisdiction to render the judgment, because the parties to the suit did not either of them live in a township adjoining the resi- . dence of the justice. The circuit judge correctly held that this question was ruled against the contention of the defendant by tbe case of Miller v. Smith, 115 Mich. 427 (73 N. W. 418, 69 Am. St. Rep. 583).

It was next urged that the statute of limitations bars the action. But the judgment is the judgment of a court of record, and the 10-year statute of limitation applies. Wilcox v. Lantz, 107 Mich. 1 (64 N. W. 735).

It is contended that the docket entry fails to show that the plaintiff appeared within the hour. This objection is frivolous. No other interpretation can be put upon this docket entry except the one that the plaintiff appeared at 10 o’clock on the 12th of December. The date employed was very clearly intended to apply to this fact of appearance.

It is next contended that the transcript filed by the justice was not a true transcript. This presents the only question about which any fair doubt may arise, and the question is, so far as we are aware, new in this court. The statute (1 Comp. Laws, § 847) provides that, upon docketing, such judgment shall have the* same effect as a judgment rendered in the circuit court, and may in the same manner be enforced, discharged, and canceled. The question- presented is' whether it may be shown that the transcript is not a true transcript in a collateral proceeding, or whether the remedy of the defendant be by motion to vacate the judgment or by a bill in equity to impeach the judgment. While we are cited to no authority upon the subject, we think on principle that the plaintiff should not be bound to come into court prepared to meet the defense sought to be interposed here, but that the remedy of defendant was by direct attack upon the judgment.

It follows that the conclusion reached by the circuit judge was correct, and the judgment in favor of the plaintiff will be affirmed.

The other Justices concurred.


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    BRIGGS v. BOARDMAN.
    Taxation — Sale—Redemption—Contracts.
    Where, within the time allowed by Act No. 204, Pub. Acts ■ 1899, for redemption from a tax deed, the holder thereof offered in writing to accept a certain sum for his interest if paid before May 25th, which offer was accepted in writing by the landowner’s attorney, who on May 24th tendered the holder the amount demanded, which was refused, the transaction operated to avoid the tax deed, precluding the issuance of a writ of assistance on the application of a grantee of the original holder.
    Appeal from Bay; Shepard, J.
    Submitted November 6, 1903.
    (Docket No. 110.)
    .Decided January 5, 1904.
    Petition by Leland C. Briggs against Myron Boardman and others for a writ of assistance. From a decree for respondents, petitioner appeals.
    Affirmed.
    The State of Michigan had become the owner of certain lands by virtue of sale for nonpayment of taxes. On December 21, 1901, Albert A. Griffin, the father-in-law of the petitioner, purchased this land from the State, paying $204.04, and a tax deed was issued and delivered to him. The original title to the land was in Myron Board-man and Stella Boardman, executors. Selina Bird was in possession under a land contract from the Boardmans. The premises consisted óf two lots and three houses. On January 6, 1902, the statutory notice, under Act No. 204, Pub. Acts 1899, was served upon Selina Bird and Myron and Stella Boardman. July 22, 1902, Griffin conveyed his interest by appropriate deed to petitioner, who after-wards applied for a writ of assistance. Upon service of notice upon the respondents under the above statute, they referred the matter to their solicitor, Mr. Brigham. He opened negotiations with Mr. Griffin to redeem from the sale. On April 12, 1902, Mr. Griffin wrote Mr. Brigham that he would accept $325 for the tax lien, if paid before May 25, 1902. 'Mr. Brigham replied accepting this proposition. On May 24, 1902, Mr. Brigham went to Lansing, found Mr. Griffin, and tendered him $325. Mr. Griffin refused to receive it, alleging that the tender was not made in time. These facts were set up in the respondents* answer. The court entered a decree requiring the respondents to pay the $325, with interest from May 24th to date of payment, within 30 days, and that, upon failure to do so, the writ of restitution issue. From this decree the petitioner appeals. He contends that the respondents have no right to appear and answer to this proceeding that the answer is in fact an attempt to enforce the specific performance of a contract for the sale of land; that this claim cannot be litigated in this proceeding, but is enforceable only by an independent suit in equity; and that no binding contract is shown between the parties.

      Albert Me Clatchey, for petitioner.

      John Brigham (Porter & Haffey, of counsel), for respondents.
   Grant, J.

(after stating the facts). Under the redemption statute above cited, the respondents’ right of redemption did not expire until July 6, 1902. Under that statute, upon payment the respondents would have been entitled to a reconveyance of the land. Mr. Griffin made a proposition in writing to take $325, a sum somewhat less than that provided by the statute to redeem, provided it was paid, before May 25th, more than a month prior to the expiration of the time of redemption. This was accepted in writing by the solicitor for the respondents, and the amount tendered within the time. It is immaterial whether the contract between Griffin and the respondents be called a contract relating to the sale of lands, or one relating to the payment of a tax lien. The offer was in writing, the acceptance was in writing, and the agreed price tendered in time. The transaction was valid, and its effect was to avoid the tax deed. ’ The title-, was then in Mr. Griffin, and the petitioner took no greater interest in the property by the conveyance than Mr. Griffin had, and he had no interest.

Decree is affirmed, with costs.

The other Justices concurred.


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    H. STERN, JR., & BROS. CO. v. WING.
    1. Garnishment — Intervention—Appeal.
    Where a garnishee defendant set np the same defense as was urged by an intervening claimant, whether it was proper to permit the intervention is immaterial.
    2. Homestead — Conveyance—Failure op Wipe to Join — Consideration.
    A deed of a homestead, in which the owner’s wife does not join, is absolutely void, entitling the grantee to a return of ■ the consideration.
    3. Same — Constructive Trust — Garnishment.
    Where the consideration for a deed of a homestead, void because not signed by the owner’s wife, was deposited in the hands of a third person, suGh person, on notice from the grantee, became a trustee of the fund for the latter’s benefit, and could not be charged as garnishee by the grantor’s creditors.
    Error to Mason; McAlvay, J.
    Submitted November 6, 1903.
    (Docket No. 109.)
    Decided January 5, 1904.
    Garnishment proceedings by the H. Stern, Jr., & Brothers Company against Charles G. Wing, as garnishee of John W. Thomas. Francis Shappee, Sr., intervened. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Fitch & Reek and A. A. Keiser, for appellant.

      M. B. Danaher, for appellee Wing.

      H. O. Hutton, for appellee Shappee.
   Montgomery, J.

The principal defendant held under land contract premises occupied by himself, wife, and children as a homestead. He'attempted to convey to the intervener, Shappee, this homestead interest, for the consideration of $1,080. Mrs. Thomas did not join in the deed. One thousand dollars of the consideration paid by Shappee to Thomas was by the latter placed in the hands of the garnishee defendant, Wing, as security for an undertaking of suretyship, which has been discharged. In justice’s court defendant Wing set up these facts, and stated in his notice of defense that the sale of the homestead was invalidated by the failure of the wife of Thomas to join, and that Shappee had demanded the certificate of deposit. Plaintiff recovered in that court, and, Wing having taken an appeal, Shappee was permitted to intervene.

Error is assigned upon this ruling. We need not determine whether the practice was proper, as it appears that the garnishee defendant set up the same defense urged by the intervener, and, as the case was determined upon the undisputed facts, it follows that, if the circuit judge was right in directing a verdict, he did no more than he was bound to do for the protection of the garnishee defendant. The plaintiff’s case was certainly no stronger against Wing with Shappee before the court than it would have been with Shappee absent. If the garnishee defendant, Wing, was liable to account to Shappee for this certificate or its proceeds either in law or in equity, it would be manifestly unjust to permit judgment to pass against him in favor of the plaintiff. Schuler v. Israel, 120 U. S. 506 (7 Sup. Ct. 648); Lannan v. Walter, 149 Mass. 14 (20 N. E. 196); North Chicago Rolling-Mill Co. v. St. Louis Ore & Steel Co., 152 U. S. 596 (14 Sup. Ct. 710). See, also, Lyon v. Ballentine, 63 Mich. 97, 105 (39 N. W. 837, 6 Am. St. Rep. 284); Kennedy v. McLellan, 76 Mich. 598, 604 (43 N. W. 641).

The attempted transfer of the homestead interest, the wife not having joined, was simply void. 3 Comp. Laws, § 10363, and cases cited in note; Ring v. Burt, 17 Mich. 465 (97 Am. Dec. 200). It was not, as construed by plaintiff, like a quitclaim of the interest which the grantor has in property^ which in certain cases furnishes a consideration, but it was an abortive attempt to convey something which, because of the statute, could not be passed without th'e signature of the wife. The money could be recovered by Shappee in an action for money had and received. Scott v. Bush, 26 Mich. 418 (12 Am. Rep. 311). He could also follow the specific fund, and, on notice to Wing, a constructive trust was raised in Shappee’s favor. 2 Pom. Eq. Jur. § 1047 et seq.

The judgment is affirmed.

The other Justices concurred.


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    FOWLES v. JOSLYN.
    1. Statute of Limitations — Payments—Evidence.
    Payments on a note, taking it out of the statute of limitations, may be shown by the oral admissions of the maker.
    2. Same — Account Books.
    An entry by the maker of a note in a private account book, showing a payment on the note, may be introduced in evidence by the payee, apart from the remainder of the book, to show that the statute of limitations has not run.
    3. Estates of Decedents — Claims—Evidence—Matters Within Knowledge of Deceased.
    Where a claimant against a decedent’s estate was asked, on cross-examination, whether an account-book entry showing a payment to him by decedent might not relate to some demand other than the note in suit, it was permissible for him to testify, on redirect, that the payment was on the note.
    4. Bills and Notes — Payments—Evidence.
    Evidence of statements by the maker of a note, that the payee held it, is admissible to show that the note had not been paid in full
    5. Same — Statute or Limitations —Instructions—Harmless Error.
    The inclusion of such statements by the court in his recital to the jury of the evidence which they might consider in determining whether a particular payment had been made on the note, so as to arrest the running of the statute of limitations, could not be said to have misled them.
    Error to Calhoun; Winsor, J.
    Submitted October 23, 1903.
    (Docket No. 71.)
    Decided January 5, 1904.
    Louis Fowles presented a claim against the estate of Betsey C. Holmes, deceased, upon a promissory note. The claim was disallowed by the commissioners on a contest made by James L. Joslyn, administrator, and claimant appealed to the circuit court, where he obtained a judgment. Defendant brings error.
    Affirmed.

      Andrew W. Lockton (Joel C. Hopkins, of counsel), for appellant.

      North & Salisbury, for appellee.
   Montgomery, J.

This case was once before the court. The opinion on the former hearing is reported in 130 Mich. 272 (89 N. W. 946). On the second trial of the case, in addition to the testimony there offered, the plaintiff offered the testimony of one Squire C. Boylan, who testified to a conversation with deceased in 1896, in which deceased stated in substance that, between 1893 and the date of the conversation, she had made a small payment of interest on the note. The plaintiff also offered in evidence an entry in a book of account or memorandum book in the handwriting of deceased under date of January 31, 1895, *4 Paid Loua $20.” “Loua” is the name by which it is shown deceased usually referred to plaintiff. Plaintiff himself was called as a witness, and, after testifying that the note had remained in his possession, was, on cross-examination by the defendant’s counsel, interrogated at some length upon other items of account appearing in the book of deceased indicating payments to him, and upon the subject of what demands such 'payments were made upon. On redirect examination the plaintiff was permitted to testify as to the entry of January 31, 1895, which related to a payment made upon the note in suit. The case was submitted to the jury, and a verdict in favor of the claimant for the amount of the note and interest was returned. The administrator again brings error.

At the close of the plaintiff’s case a motion was made to direct a verdict on the ground that there was no proof to take the case out of the statute of limitations. We think this motion was properly overruled. At, that time the testimony of Squire O. Boylan was before the jury, and was sufficient, if believed, to show that payment had been made at the time fixed. In the same connection it is-urged that testimony of oral admissions of a payment is incompetent to take the case out of the statute of limitations. This contention is not supported by authority. On the contrary, an early interpretation of the Massachusetts .statute, from which ours was borrowed, determines that such testimony is entirely competent, and its weight is for the jury. Williams v. Gridley, 9 Metc. (Mass.) 482.

Complaint is made that the circuit judge permitted the claimant to read from the book of account or memorandum book kept by deceased the single item which was claimed to relate to the payment upon the note in question, and it is said that the entire book should have been offered in evidence; defendant citing the authorities which relate to the admission of a person’s own books of account, which relate to quite a different question than that here involved. The admission of the deceased appearing upon this book, if shown to be connected with the payment of the money to the claimant, would have been as much evidence had it been upon a slip of paper as it was appearing upon the book of account. It was not necessary, to give it authenticity, to show the manner in which the book was kept, or to show a regular course of dealing between the parties, as where a party offers his own books of account. The proper practice was followed. Van Bokkelein v. Berdell, 3 N. Y. Supp. 333.

The defendant was permitted to cross-examine the claimant at length upon the subject of the other entries, to show that money had from time to time been borrowed from the claimant, and that memoranda of it appeared upon this book, and upon redirect examination claimant’s counsel was permitted to ask him as to whether the payment in question was made upon the note. On cross-examination the plaintiff had been asked whether this item in question of $20 might not have been paid upon the $20 which deceased had borrowed of claimant. He answered this in the negative, and on redirect examination was asked to state what it did refer to, and the court very properly ruled that the cross-examination had opened the door to this inquiry.

The defendant assigns error upon the ruling admitting the testimony of Mrs. Storer of statements by the decedent to the effect that claimant held her note, made shortly before the death of defendant’s intestate. It is said that this had no tendency to show payment, and this is in a sense true. Yet the testimony was competent as bearing upon the question of whether the note had been paid in full, and whether the claimant was entitled to retain the possession and custody of it. The only difficult question in the case, as it seems to us, is whether the reference to this testimony in the charge of the court might have misled the jury. The jury were told that they should consider, in determining the question of whether the payment had been made, the surrounding circumstances, the conditions and relations of the parties, statements made by Miss Holmes during the time of her visit to New York or elsewhere, the testimony of Squire C. Boylan in regard to what occurred, and determine whether Mr. Fowles had established, by a preponderance of the evidence, that the $20 indorsed upon the note had been paid. We think that this instruction could not well have misled the jury, as the case shows that the question submitted to them related to the payment made at a distinct time, to wit, on the 31st day of January, 1895, and there was nothing in the testimony of Mrs. Storer from which the jury could have inferred that it related to this particular transaction.

We do not find any prejudicial error in the case, and the judgment will be affirmed. »

The other Justices concurred.


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    SHOULDICE v. McLEOD’S ESTATE.
    Estates op Decedents — Claims—Statute op Limitations. Case ruled by former decision, reported in 130 Mich. 444.
    Error to Marquette; Stone, J.
    Submitted November 19, 1903.
    (Docket No. 141.)
    Decided January 5, 1904.
    Henry Shouldice presented a claim against the estate of Norman McLeod, deceased, for money had and received. The claim was disallowed by .the commissioners, and claimant appealed to the circuit court, where he obtained judgment. Defendant brings error.
    Affirmed.

      Clark & Pearl, for appellant.

      Ball & Ball, for appellee.
   Montgomery, J.

This case was before the court at the October term, 1901. The opinion of the court given on the former hearing is reported in 130 Mich. 444 (90 N. W. 288). We refer to that opinion for a full statement of the facts of the case. We will not repeat the statement, except so far as is necessary to an understanding of the new questions raised on this hearing.

On the former hearing, as on the present, the defendant’s counsel made two' main contentions, which were that the claimant’s case must fail — First, because he failed to show that the money which McLeod was charged with having received was the .money of claimant; and, second, that claimant’s claim was barred by the statute of limitations. We held on the former hearing that each of these questions depended upon questions of ‘ fact, and that proper instructions had been given. This ruling furnished the law of this case for a second trial.

We are not able to discover any material difference in the testimony given on the two trials as it relates to the question of the statute of limitations. On each trial it became a fair question for the jury whether McLeod had removed to Minnesota before the statute had run.

Upon the question whether the money belonged to claimant, defendant’s counsel say that the testimony of the witness Pool that claimant stated that this money would carry the venture along until there was iron on top of the ground to sell, etc., stands undisputed on the present record, and that this differentiates this record from the former, so that a different result should be reached. Counsel are clearly mistaken in saying that the testimony of the witness Pool is undisputed on this point. It is, indeed, difficult to understand how such an error could have crept into the brief of counsel, as in another portion of the brief reference is made to the testimony which furnishes the denial. The witness Pool was asked to fix the occasion when the statement was made, and the witness Shouldice distinctly denied having made such a statement.

The charge of the court fairly presented all the questions in the case. >

The judgment is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    ADAMS v. BRUSKE.
    Fraudulent Conveyances — Husband and Wipe — Evidence.
    A husband conveyed certain land to his wife to protect it from his creditors, and also took in her name certain mortgages to secure loans made by him. Subsequently, after execution had issued on a judgment against the wife, she conveyed the land to her daughter in payment of an alleged indebtedness of the husband, and also, at the same time, discharged the mortgages, of the avails of which the husband had previously received the benefit. It was claimed that he was the real owner of all of the property. The daughter had already received other land in consideration of the same claim. Held, to indicate fraud, justifying a decree applying both the land and the proceeds of the mortgages to the satisfaction of the execution.
    Appeal from Manistee; Chittenden, J., presiding.
    Submitted November 19, 1903.
    (Docket No. 138.)
    Decided January 5, 1904.
    Creditor’s bill and bill in aid of execution by Libbie Adams against Minnie Bruske, Herman Bruske, and Martha Ringel. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Fitch & Beck, for complainant.

      Frank F. Chamberlain (Frank L. Fowler, of counsel), for defendants.
   Hooker, J.

Herman and Minnie Bruske were husband and wife. He was a lumberman. On May 4,1898, this complainant obtained a decree of foreclosure against Minnie Bruske, covering real estate in Mason county. In February, 1899, it was sold, resulting in a deficiency of $700, or thereabouts, and Minnie was decreed liable for •the deficiency. Execution was duly issued, and subsequently was returned unsatisfied. At the time this execution was issued, September 2,1899, Minnie Bruske held the record title to 80 acres of land, 40 of which was the family homestead. She also held a mortgage for $800, dated April 25, 1889, given by John Beyer, covering real estate; also a half interest in a mortgage for $666 upon other lands. On September 4, 1899, Minnie Bruske conveyed the 40 acres of land not occupied as a homestead to their daughter, Martha Ringel, and on or about September 7, 1899, the mortgages were discharged by her. Thereupon an alias execution was issued, and is still in the hands of the sheriff; and the bill in this cause was filed in aid of the execution, and to reach equitable assets of Minnie Bruske in the hands of Herman Bruske. At the hearing the complainant introduced proof of the foregoing facts and rested, relying upon the statute construed in the case of Crane v. Waldron, 133 Mich. 73 (94 N. W. 593). The defendants claim that Minnie Bruske never owned any- property, and, though she held title to the 80 acres of land and the mortgages, that it really belonged to her husband, Herman Bruske, who caused it to be put in her name in view of his dangerous calling; that he was largely indebted to Martha Ringel for her labor, and for rent of a building which he had collected and appropriated, and to her husband for labor; and that the conveyance to Martha Ringel was by way of payment of these obligations of the husband, Herman Bruske.

The testimony fairly shows that Herman Bruske was heavily in debt as early as 1883, and that he caused this and other property to be conveyed to his wife about that time to protect it from his creditors. The transactions relating to the mortgages are not very clearly shown, but enough appears to indicate that they were taken for money furnished by Herman Bruske, but in the name of his wife. Afterwards they were applied on the purchase of property of which he had the benefit, but not discharged of record until the decree against Minnie made it appear advisable, and then it was done simultaneously with the deed to Martha Ringel. Mrs. Ringel had already received two parcels of land from her mother, — one as late as 1896, which was in payment for labor. The course of dealing with the property by this family is suggestive of fraud, and so strongly tends to show it that we think complainant’s case proven.

The decree of the circuit court is reversed, and a decree may be entered in this court in accordance with the prayer of the bill as to the 40-acre parcel of land in question, and that, as defendant Herman Bruske has received the proceeds of. the mortgages mentioned, he be required to pay to the complainant any deficiency that may result after the application of said 40-acre parcel to the execution and costs of this case, to the extent of $1,000. The complainant will recover costs of both courts.

The other Justices concurred.


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    PEOPLE v. STOCKWELL.
    1. Criminal Law — Fugitive from Justice — Extradition—Warrant.
    A warrant issued by the governor, empowering a sheriff to receive from the authorities of another State one against whom an information has been filed as a fugitive from justice, and convey him hither, to be dealt with according to law, is sufficient to authorize his production before the court wherein the information is pending.
    2. Same — Information—Complaint.
    Whether an information against a fugitive from justice under 3 Comp. Laws, § 11940, must be based upon a sworn complaint, — quaere.
    .3. Same.
    An information is a sufficient basis for extradition.
    •4. Same — Arrest—Verified Information.
    Doubt is expressed as to the sufficiency of an information, verified on information and belief only, to justify an arrest.

      5. Same — Information—Sufficiency.
    An information need not charge the precise offense named in the complaint and warrant, so long as it is based upon the same transaction. So held where a nolle prosequi was entered in a prosecution for conspiracy to extort money, and an information filed for obtaining money by false pretenses, without further complaint or examination.
    ■6. Same — Preliminary Examination — Presumptions.
    An information will be presumed to have been authorized by the preliminary examination, in the absence of a contrary showing.
    7. Same — False Pretenses — Agency—Sufficiency of Information.
    An information for obtaining property by falsely accusing one-of being the father of an unborn child of a certain woman, alleging that a note payable to respondent or bearer was given by the person accused as a result of the false pretenses and fraud practiced upon him, that it was represented to him that it would operate as a full satisfaction and settlement of all claims of the woman, and that such representation was relied on, was sufficient, though it did not directly charge that respondent was, or claimed to be, authorized to act for the woman.
    8. Same — Credibility of Witnesses.
    In a prosecution for obtaining money under false representations that a certain person was the father of an unborn child,, it was shown that such person had denied on a former trial, growing out of the same transaction, that he had had connection with the woman, and on the trial in question he-attempted to explain away such statement. Held, that the discrepancy only affected his credibility, the reasonableness of his explanation being for the jury, and did not amount to a failure of proof that he was deceived by the representations.
    Error to Genesee; Wisner, J.
    Submitted November-1§, 1903.
    (Docket No. 233.)
    Decided January 5, 1904.
    Joseph W. Stockwellwas convicted of obtaining a promissory note by false pretenses, and sentenced to imprisonment in the State prison at Jackson for eight years..
    Affirmed.

      John H. Farley and M. & B. Wixom, for appellant.

      George D. Williams, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was charged with the offense of obtaining a note of $3,000 from one Jacob Raquet by means of falsely accusing Raquet of being the father of an unborn child with which one Rosa Taylor was claimed to be pregnant, the respondent at the time knowing the accusation to be false. Numerous objections are taken to the proceedings, which will be first noticed.

It appears by the record that the same transaction upon which this information appears to have been based was made the basis for a prosecution of respondent and others for conspiracy. After a preliminary examination the respondent was held for trial, and an information filed against him. He gave bail for appearance, defaulted, and fled from the State. At this 'stage a nolle prosequi was entered in the conspiracy case, leave to file the present information was asked, and an information was,filed under section 11940, 3 Comp. Laws. A warrant of arrest was issued, signed by the clerk, tested in the name of the presiding judge. A warrant was also issued by the governor, empowering Edward G. Rust, who was sheriff, to receive the respondent from the proper authorities of Louisiana, and convey him to the State of Michigan, to be dealt with according to law. The sheriff made return to both warrants.

It is contended that the clerk had no authority to issue the warrant in this case. We do not find it necessary to determine this question, as the warrant of the governor was ample authority to authorize the sheriff to produce the respondent before the court in which the information was filed.

It was also contended — and a motion to quash was based on this ground — that the proceedings did not amount to due process of law, and that there was no such showing on oath as justified respondent’s arrest; citing section 26, art. 6, of the Constitution. We need not decide whether the filing of the information against a fugitive from justice under section 1194=0 would, in the absence of any sworn complaint or examination, be subject to the objection made. It is clear that an information is a sufficient basis for extradition. 2 Moore, Extradition, § 551; In re Hooper, 52 Wis. 699 (58 N. W. 741). Whether the affidavit annexed to the information is a sufficient compliance with section 26, art. 6, of the Constitution, may admit of more question. But in this case there was a basis in the sworn complaint upon which the respondent was originally apprehended for the filing of an information. So long as the information was based upon the same transaction, it need not charge the same precise offense named in the original warrant of arrest. Annis v. People, 13 Mich. 511; People v. Bechtel, 80 Mich. 623 (45 N. W. 582); People v. Oscar, 105 Mich. 704 (63 N. W. 971); People v. Pichette, 111 Mich. 461 (69 N. W. 739). The examination is not returned, and we must presume that it related to the same transaction, and warranted the filing of an information. The practice in the present case was that followed in People v. Kuhn, 67 Mich. 463 (35 N. W. 88). There was no error in the ruling of the circuit judge upon this question.

The motion to quash was based upon the further ground that the information failed to charge an offense. The precise point seems to be that the information fails to allege that the respondent was, or claimed to be, authorized to act as agent of Rosa Taylor. The information does allege, however, that a note payable to respondent ‘! or bearer ” was given by Raquet as the result of the false pretenses and fraud practiced upon him, and that it was represented to Raquet that said note would be and operate as a full satisfaction and settlement of any and all claims of the said Rosa Taylor, and that such representation was relied upon. It was sufficient.

It is also contended that, upon the whole record, a verdict should have been directed for the respondent. This contention rests upon the claim that the evidence fails to show that Raquet was deceived by the statement that Rosa Taylor was with child. The record does disclose that, on the trial of the conspiracy charges in which one Johnson was respondent, the witness denied having had connection with Rosa Taylor. This he attempted to explain on this trial. The reasonableness of this explanation was for the jury. At the most, the discrepancy affected the witness’ credibility.

Criticism is made of the charge. We think all the questions in the case were fairly covered in a connected charge, and the rights of the respondent fully protected.

The other points made have had full consideration, but are not thought to call for special mention. No error appears, and the conviction is affirmed.

The other Justices concurred.


text:
    ISMON v. LODER.
    1. Corporations — Action of Directors — Parol Evidence.
    Parol evidence is admissible to prove the action of the directors of a corporation where the law does not require the same to be entered of record.
    3. Agricultural Societies — Mortgages—Authority to- Execute.
    2 Comp. Laws, § 5974, authorizes agricultural societies, by a two-thirds vote of their directors, to issue evidences of debt, secured by mortgage on the real estate of the society, whenever necessary for the purpose of paying for permanent grounds, or for buildings or improvements thereon. At a meeting of the stockholders of such a society, a resolution was adopted authorizing the directors to “ negotiate for and procure a loan” on its grounds “in the sum of the purchase price, giving a mortgage thereon and securing a deed of the land.” The minutes of a subsequent meeting of the board of directors, which showed that all the directors were present, • contained this entry: “Motion, that land be bought according to abstract. Carried. Motion, that the president and secretary be empowered to make loan of $2,000 and secure deed. Carried.” It was shown by parol that all the directors voted for this resolution, and that the loan was negotiated accordingly. Held, that the execution of the mortgage was shown to be authorized.
    3. Corporations — Stockholders’ Meeting — Effect.
    Although action taken at a meeting of the stockholders of a corporation may be ineffectual, it is proper to be considered in construing the minutes of a subsequent meeting of the directors relating to the same subject-matter.
    4. Same — Agricultural Societies — Conveyances—Seal.
    The character “ [Seal],” set opposite the official signatures of the president and secretary of 'an agricultural society to a mortgage purporting to be that of the society, and reciting that its seal was affixed, — the corporation in fact having no formal seal, nor being required to have one, — should, in view of 3 Comp. Laws, § 9005, be given the effect of a corporate seal.
    5. Same.
    An agricultural society, though differing from ordinary business corporations, is nevertheless to be classed as a private corporation, and a conveyance by it is not void for want of a. seal. 3 Comp. Laws, § 10417.
    6. Corporations — Deeds—Execution—Signature.
    3 Comp. Laws, § 9509, providing that' no estate or interest in¡ lands shall be created except by deed in writing, subscribed by the party creating the same, does not require that the-deed of a corporation shall have its corporate name subscribed thereto, but the signatures of its president and secretary, with their official designation, are sufficient to give-effect to the conveyance.
    7. Mortgages — Execution Purchasers — Notice.
    The rights of a purchaser at an execution sale to attack a prior recorded mortgage are no greater than those of the mortgagor, for he purchases with constructive notice of the mortgagee’s rights.
    Appeal from Calhoun; Winsor, J.
    Submitted October-31, 1903.
    (Docket No. 52.)
    Decided January 5, 1904.

      Bill by Mary E. Ismon against William M. Loder and the Albion Agricultural Pair & Driving Park Association to foreclose a mortgage. From a decree for complainant, defendant Loder appeals.
    Affirmed.

      A. M. Culver, for complainant.

      John C. Patterson, for appellant.
   Carpenter, J.

This suit is brought to foreclose a certain real-estate mortgage. The mortgage is dated June 4, 1894. It secures to James W. Sheldon, the mortgagee, the payment of $2,000, and purports to be executed by the Albion Agricultural Fair & Driving Park Association as mortgagor. Mr. Sheldon died shortly after the mortgage was given, and his administrator assigned the same to complainant (Sheldon’s widow). The lower court gave complainant a decree. Defendant Loder, who bought the land at an execution sale after the mortgage was duly recorded, appeals to this court, and asks a reversal of that decree on several grounds. His objections will, however, all be sufficiently discussed if we consider his contentions that the execution of said mortgage was not authorized by the association, and that it was not executed in such a form .as to be binding, either at law or in equity, on said association.

As to the authority for the execution of the mortgage: The authority of the association to execute this mortgage is given by section 5974, 2 Comp. Laws. That section reads:

“It shall and maybe lawful for any agricultural or horticultural society duly organized as a corporation by virtue of any law of this State, by the vote of two-thirds of all the directors or other officers having the management of the affairs of such society, to issue bonds or other evidences of debt, * * * and to secure the payment of the same by a mortgage or mortgages upon the real estate of such society, or any part thereof, whenever necessary for the purpose of paying the purchase money of permanent grounds, or for buildings or improvements made or to be made thereon.’'

The evidence shows that the money secured by the mortgage was used to pay the balance unpaid on the contract for the purchase of the mortgaged land; that on April 9, 1894, at a meeting of the stockholders of said association, a resolution was adopted authorizing the board of directors to “negotiate for and procure a loan on the Albion Agricultural Fair & Driving Park Association grounds, in the sum of the purchase price, giving a mortgage thereon and securing deed of land.” The minutes of a meeting of the board of directors held June 1, 1894, show that all the directors were present. We quote from those minutes:

“Motion, that land be bought according to abstract. Carried. Motion, that the president and secretary be empowered to make loan of $2,000 and secure deed. Carried.”

Parol testimony was introduced showing that all the directors voted for this resolution, and that the “ board of directors negotiated a loan of money to pay for it [the land]. They made the loan with James W. Sheldon. * * * He was to take a mortgage on the land. * * * We [the directors] were to secure him by a mortgage.” The association has always recognized the instrument as a valid mortgage, and paid interest on it from its. date, June 4, 1894, until some time in 1899.

It is contended by defendant that the minutes of the directors’ meeting do not show that twa-ttíirds of the directors voted for the execution of this mortgage, and that parol evidence is inadmissible to supply any omissions in those minutes. As the law did not require a record of this vote, we think parol evidence was admissible. See Bank of Yolo v. Weaver, (Cal.) 31 Pac. 160; Edgerly v. Emerson, 23 N. H. 555 (55 Am. Dec. 207); Zihlman v. Cumberland, Glass Co., 74 Md. 303 (22 Atl. 271); Township of Taymouth v. Koehler, 35 Mich. 22. Nor do we think this parol evidence open .to the objection that it tends to contradict the recorded minutes of the directors’ meeting. Those minutes, if construed, as we think they should be, in connection with, the resolution passed at the stockholders’ meeting, and with the negotiations of the board of directors with Sheldon, in our judgment authorize the execution' of the mortgage. This conclusion is not affected by the contention of defendant that the stockholders’ meeting was illegal, and its action, therefore, ineffectual. Assuming such action to be ineffectual as a grant t of authority, it nevertheless was an appropriate circumstance to be considered in construing the minutes of the subsequent meeting of the directors.

Was the mortgage so executed as to be binding upon the association ? The instrument in question purports to be a mortgage of “the Albion Agricultural Fair & Driving Park Association, party of the first part.” It concludes as follows:

“In witness whereof, said party of the first part has hereunto set-hand and seal, this-day of-, in the year one thousand eight hundred and ninety-.
“Eugene C. Lester, Pres. [Seal.]
“ George W. Schneider, Sec. [Seal.]”

The certificate of acknowledgment certifies:

“Before me * * * personally appeared the Albion Agricultural Fair & Driving Park Association, by Eugene C. Lester, president, and George W. Schneider, secretary, of its board of trustees, * * * and severally acknowledged the execution thereof to be their free act and deed, and the free act and deed of the Albion Agricultural Fair & Driving Park Association.”

Lester and Schneider were, respectively, the president and secretary of the association.

It is urged that the execution of the mortgage was defective because the corporate seal was not affixed, and because the corporate name was not subscribed. It is to be inferred, from the evidence in the record, that the association did not have a formal corporate seal. We cannot agree with defendant’s counsel that the law requires that it should have such seal, and therefore we think that section 9005, 3 Comp. Laws, gave to the “scroll or device used as a seal upon any deed of conveyance * * * the same force and effect as a seal attached thereto or impressed thereon.” ' The whole tenor of the mortgage, and particularly the concluding statement therein, that the mortgagor’s seal is affixed thereto, leads us to conclude that the seal set opposite the signatures of the president and secretary was intended to be the seal of the corporation. See Proprietors of Mill-Dam Foundery v. Hovey, 21 Pick. 417.

It is contended that this conclusion is not in harmony with the case of Regents of University v. Detroit Young Men’s Society, 12 Mich. 138. In that case, seven Regents of the University and five members of a committee of the Young Men’s Society subscribed a certain contract for the sale of real estate. The seal, placed opposite each signature, was held to be “the individual seal of the several persons signing the instrument.” There was nothing to indicate in that case — as in this there is, by the words “Pres.” and “Sec.” placed between the signature and the seal — that the attached seal was not the seal of the individual subscribers.

If, however, we accept that case as an authority for the proposition that the seals in question are the individual seals of the officers, and not the seal of the corporation, it by no means follows that the instrument in question is void. Section 1041.7, 3 Comp. Laws, contains this language :

“ And no bond, deed of conveyance, or other contract in writing, signefi by any party, his agent or attorney, shall be deemed invalid for want of a seal or scroll affixed thereto by such party.”

It is urged that this statute has no application to corporations, especially public corporations; and it is claimed that the agricultural association is-a public corporation. The association, though it differs from the ordinary business corporations (Kent County Agricultural Society v. Houseman, 81 Mich. 609 [46 N. W. 15]), is nevertheless to be classified as a private corporation (Trustees of Dartmouth College v. Woodward, 4 Wheat., at pages 668-672), and, in our judgment, an unsealed conveyance executed by it is valid under the language above quoted. The objection that the instrument was not sealed cannot, therefore, prevail.

Was the mortgage properly suoscribed by the corporation ? It is contended that section 9509, 3 Comp. Laws, required that the name of the corporation be written at the conclusion of the mortgage, over the signatures of its officers. That section, so far as material to this discussion, reads: '

“No estate or interest in lands * * * shall hereafter be created, granted, assigned, surrendered, or declared unless * * * by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by some person thereunto by him lawfully authorized by writing.”

This statute requires the grantor to subscribe the conveyance. It does not, however, as assumed in the argument of defendant, specify the form in which the signature shall be written. The initials of a party have been held a sufficient signature, within the statute of frauds. See Phillemore v. Barry, 1 Camp. 513; Salmon Falls Manfg. Co. v. Goddard, 14 How. 446; Barry v. Coombe, 1 Pet. 640; Sanborn v. Flagler, 9 Allen, 474; Browne, Stat. Frauds, §§ 355a, 362. The only way in which a corporation can sign its name is by acting through some officer. “The officer or agent of a corporation, who exe-( cutes a deed in the name of the corporation by affixing thereto the impression of the common or corporate seal intrusted to his care, is the party executing the deed, as it is impossible that a corporation aggregate should execute or acknowledge a deed in person.” Lovett v. Steam Saw-Mill Ass’n, 6 Paige, 60. While “the best form of execution [by an attorney] is writing the name of the principal, adding the words ‘by his attorney,’ and then signing the name of the attorney,” it is sufficient if it “clearly shows the signing to be the act of the principal, done and executed in his name by the attorney. Thus, where the attorney’s name precedes that of the principal, the execution has been held sufficient.” Browne, Stat. Frauds, § 13. Wilks v. Back, 2 East, 142, 145. The statute cannot, therefore, be construed as requiring that officers of a corporation, in subscribing the deed of the corporation, shall follow a particular form.

That the form adopted in this case was sufficiently regular to make the conveyance effectual was decided by this court in the case of Regents of University v. Detroit Young Men’s Society, 12 Mich. 138, heretofore cited. In that case suit was brought in assumpsit on a special count setting up a contract wherein the Regents of the University, a body corporate, undertook to sell land to the Young Men’s Society, another corporation. That contract was executed in almost exactly the same manner as the mortgage under consideration. The names of the contracting parties were not formally subscribed, though the names of the Regents of the University were, as were the names of the committee of the Young Men’s Society. Upon demurrer, it was contended by the eminent counsel representing the defendants “that the contract was not executed by the parties, nor by any persons purporting to act for them; it was signed and sealed by individuals as such.” This contention was disposed of by the court in the following language:

“The next objection is that the instrument set forth does not conform to the allegations of the declaration, inasmuch as it does not purport to have been executed by the plaintiffs or defendants, or any person for them, nor that the same was sealed by the respective corporations, or either of them. It needs but a glance at the attestation clause and the signatures to show that so much of the above objection as claims that the instrument set forth does not purport to be executed by the plaintiffs or defendants, or any person for them, is not well founded.”

Authorities may be cited opposed to this conclusion, and supporting defendant’s contention that the corporate name must be formally subscribed. See Isham v. Bennington Iron Co., 19 Vt., at page 252; Brinley v. Mann, 2 Cush. 337 (48 Am. Dec. 669). The decision in Regents of University v. Detroit Young Men’s Society must, however, be regarded as controlling; and, in our judgment, as already shown, it is supported by sound reasoning.

We cannot agree with defendant that, because he purchased at an execution sale, his rights to attack this mortgage are greater than those of the mortgagor. As the mortgage was on record when his interests were acquired, we must hold that defendant purchased with constructive notice.

The decree of the court below must therefore be affirmed, with costs;

The other Justices concurred.