text:
    E. A. LANGE MEDICAL CO. v. BRACE.
    1. Constitutional Law — Interstate Commerce — Corporations— Authority to Transact Business.
    A foreign corporation engaged in the business of selling proprietary medicines, extracts, and other merchandise, having a resident agent, employed under a contract to take orders for the products of the defendant company, who was to devote his entire time to the business, retaining for his compensation a stated portion of the selling price, under the further stipulation that the title to the goods should remain in the seller, was not engaged in the business of interstate commerce under Act No. 310, Pub. Acts 1907 (4 How. Stat. [2d Ed.] § 9647 et seq.), but was doing business within the State such as to require it to obtain authority from the secretary of State.

    2. Same — Contracts—Conflict of Laws — Situs.
    Sales made by an agent in his own name of goods to which title rests in the principal are in law the contracts of the consignor at the selling point, and if the transaction is not a single instance but one of a series and both parties contemplated a permanent arrangement to dispose of a large amount of goods, the arrangement constituted doing business within the State in which the goods were sold. .
    Error to Lenawee; O’Mealey, J.
    Submitted April 6, 1915.
    (Docket No. 7.)
    Decided June 7, 1915.
    Assumpsit by the E. A. Lange Medical Company against E. J. Brace and others upon a guaranty or indemnity contract. Judgment for defendants upon a verdict directed by the court.
    Affirmed.

      Charles L. Robertson and James H. Cornelius, for appellant.

      Baldwin, Alexander & Russell, for appellees Froelich and Pickles.

      Burton L. Hart, for appellee Brace.
    This is an action arising out of a contract made October 12, 1909, between the E. A. Lange Medical Company, a Wisconsin corporation engaged in the manufacture and wholesale of spices, household remedies, and proprietary articles, and E. J. Brace, a resident of Michigan, providing as follows:
    “Agent’s Contract.
    “This contract, made this 12th day of October, A. D. 1909, by and between the E. A. Lange Medical Company of De Pere, Wis., party of the first part, and E. J. Brace, of Weston, State of Michigan, party of the second part, witnesseth:
    “In consideration of the agreement of party of the first part, hereinafter provided, party of the second part makes the following agreements:
    “1st. To enter the employ of said party of the first part as agent with authority to sell and take orders subject to the approval of and on such terms and conditions as instructed by said party of the first part, and in such territory as may be agreed upon and assigned him by said party of the first part, from time to time.
    “2nd. To begin work promptly on receipt of stock and give his best skill and business ability to the prosecution of the business hereby undertaken, devote his entire time and attention to the business of the party of the first part, and make weekly reports of all goods sold, and he further agrees to remit to the company, at the end of each week, the invoice price of all goods sold during the week, for the first year. After one year from date of contract he agrees to remit to the company each, week, one-half of his cash receipts until his account is settled in full, after which he receives a discount of 5 per cent, from the invoice price for all goods paid for within thirty days from date of sale. All remittances to be. made by. P.' O. order, express order, or Chicago exchange.
    “3rd. That goods and any other property shipped or delivered to him by said party of the first part, will be held in trust by him, and shall at all times be subject to the order of said party of the first part free from any lien thereon in favor of said party of the second part, and at the termination of this agreement or at any other time all goods or samples to be returned for exchange or otherwise are to be sent freight or express prepaid, and shall be in good condition, ordinary wear and tear excepted.
    “4th. That if at any time said party of the first part shall pay said party of the second part more than is due him under the terms of this agreement, the amount of such overpayment shall be refunded to the said party of the first part on demand.
    “5th. To furnish a suitable outfit, consisting of horse and wagon, same to be approved by party of the first part.
    “In consideration of the above agreements and their fulfillment by said party of the second part, the E. A. Lange Medical Company, party of the first part, agrees to supply party of the second part with all remedies on the following terms:
    “Goods at the prices named in the confidential price list furnished agents by the party of the first part. The party of the first part also agrees to deliver all goods to agent f. o. b. at their nearest railroad station; the party of the first part to supply party of the second part with all the goods they require and send them goods as they need them to the extent of 25 per cent, more than their bond. The party of the first part also agrees to exchange^ all broken or soiled packages. All mail orders received by the party of the first part from the territory of the party of the second part are to be placed to the credit of the party of the second part, who is to receive credit for same when said order is paid for to the extent of the net profit on same order after expenses of delivery and agents’ cost of goods is deducted'.
    “This agreement may be terminated by either party hereto by giving notice to the other party, and may be changed only by supplementary agreement signed by both parties and attached hereto.
    “Signed in duplicate this day and date first above written.
    “The E. A. Lange Medical Co.,
    “By E. A. Lange.
    “E. J. Brace, Salesman.”
    Attached to the above contract was a written guaranty, which reads as follows:
    “Guaranty. ■
    “We, the undersigned, guarantee,that the salesman signing the above contract will return to the E. A. Lange Medical Company, as provided therein, within a reasonable time after demand, all samples and other property placed in his charge by them, and we jointly and severally agree to pay to the E. A. Lange Medical Company the invoice value of any samples or other property not so returned, provided that the amount of our liability shall not exceed the sum of five hundred dollars.
    “Date Oct. 12, 1909.
    “Joseph Froelich, Sand Creek, Mich.
    (Signature of Surety)
    “Ed. Pickles,
    (Signature of Surety)”
    From time to time goods were shipped and consigned to Brace from Wisconsin, as ordered by him, were invoiced to him, and charged to him on the company’s booksi He was required to keep an account of the business in a book furnished by the company, and ■ made weekly reports to the company showing what goods he placed on trial and the amount of his cash receipts. But he sold goods to whom he pleased and on such terms as he saw fit. Defendant Brace described his method of selling as follows on cross-examination :
    “The method I followed in selling goods was to first get them from the company, and those that I did not carry with me in the wagon I stored in the hotel in Prattville. I did not pay any rent for the storage; they allowed me to keep, the goods there because I boarded there. When I had my wagon loaded with remedies, I stopped at every house, showed them the goods, and sold whatever they needed. I would- tell them I was representing the E. A. Lange Medical Company with flavoring -extracts, spices, and medicines, and show them to them, each article by itself as a rule, unless they knew what .they wanted. If there was anything I had that they wanted, I let them have it, and told them the company puts this out on trial. The company puts this out on trial; you can use it down to the trial mark on the bottle, and if it was not satisfactory you could return that and' the company would stand for it. The. goods were to be returned to me and through me to the company. I would make an entry on my book at the retail price. I did not put the price on the book at wholesale, because lots of people would be liable to pick up that book, and it was supposed to be "a confidential price, and I had no right to put anything except the retail price there. When I returned goods to the E. A. Lange Medical Company, they gave me-credit for just what they charged me.
    “When I ordered more goods from the Lange Medical Company, I did not say anything about paying for them. I paid for them only as I collected money for them. When I would collect money on the Lange Medical Company account I would send their per cent, to them, about once a week,-when I worked, and the money would represent their proportion of all the cash collections of that week. During the time I had this money, I generally carried it in my pocket, * * * and kept all my money together until the end of the week. Then I would figure up how much belonged to the Lange Medical Company and how much to me, and send them their share. When I had gotten enough goods that had been taken up or were to be returned to the Lange Medical Company, I would pack them up and send them back. They would give me credit for them or return goods of equal value. I never sold any goods on credit. I always put them out on trial and sold them for cash, and when I went around again where they had the money they would pay for them: and, if they did not have the money, they would ask me to carry them over until the next time and I would carry them over. Those that had an opportunity for trial and did not pay for their goods, I had to carry over; if they accepted the goods, I carried them over as an old account. I understood it was the Lange Company’s account, but it was carried over because they did not have the money to pay for them; it was credit extended to the customer on the Lange Company’s behalf by me. I would be obliged to collect the money before I had my money or they would have theirs.
    “When I ran short of goods or sent in an order to the company, the goods would come after a spell, and I would take them out of the freight office and put them in my wagon or in the storeroom.
    “The commission I made on the goods was the difference between the retail price and the confidéntial price list. Instructions were to follow these prices explicitly and not sell the goods for less than the retail price given on the price list.”
    When the company discontinued shipping goods to Brace in November, 1910, the latter failed to pay for some goods not returned to the company, and the latter made demand on the sureties for the maximum amount of their guaranty. They refused to pay, and this action resulted.
    Defendants pleaded the failure of the plaintiff to comply with Act No. 310, Pub. Acts 1907, which makes it unlawful for any foreign corporation to carry on its business in this State until it shall have procured from the secretary of State a certificate of authority for that purpose, and prescribes a penalty for failure to comply with the requirements of the act. Section 6 provides:
    “No foreign corporation, subject to the provisions of this act, shall be' capable of making a valid contract in this State until it shall have fully complied with the requirements of this act, and at the time holds an unrevoked certificate to that effect from the secretary of State.”
    Section 8 provides in part:

      “Nor shall this act be construed to prohibit any sale of goods or merchandise which would be protected by the rights of interstate commerce.”
    At the close of the proofs, the trial court directed a verdict for the defendants on the ground that the contract was invalid under said Act No. 310. Plaintiff brings the case into this court by writ of error to review the ruling of the trial court, and contends that in its dealings with Brace under the contract it was engaged in interstate commerce, and that it was not carrying on business within the State.

       As to transactions pursuant to agreement with local dealer to sell product of foreign corporation within State, as doing business therein, see note in 44 L. R. A. (N. S.) 1094; also as to whether establishing agency to handle corporation’s product within the State is doing business therein, see note in 18 L. R. A. (N. S.) 142.

   Kuhn, J.

(after stating the facts). The question of whether or not the contract here involved relates to interstate commerce is not without difficulty. It being a Federal question, in its consideration we must necessarily be governed by the decisions of the Federal courts. Counsel for appellant rely upon the case of Butler Bros. Shoe Co. v. Rubber Co., 156 Fed. 1, 84 C. C. A. 167, in which case Judge Sanborn, in an exhaustive opinion, has gone over this subject, and, with reference to the contract there in question, stated the following:

“Let us now turn to the contracts, observe what the rubber company agreed to do and what it actually did under them, and determine, if possible; whether or not in making or in performing these agreements it was guilty of doing any business within the meaning of the constitution and statutes of Colorado. It agreed to ship the goods from its warehouse, or its mill, upon the orders of the appellee, to that company in Denver; and it did so. It contracted to do, and it did, nothing more. It never had any office or place of business in Colorado. It never received, stored, handled, or sold any goods, or collected any money for the sales of any goods, in that State under this contract. It never incurred, assumed, or paid any expenses of doing all these things, or of conducting any of the business. The shoe company had and maintained a place of business in Colorado, it rented or owned the place in which the business in Colorado was done, and it agreed to bear all the expenses and losses of receiving, storing, and selling the goods; and it did so. The purchasers of the goods were purchasers from it, solicited and secured by it. They were its customers, and liable to it for the purchase price of the goods. The goods were billed to them in the name of the shoe company as consignee. The profits of the business and the work of the business, the labor of receiving, storing, and selling the goods, were the shoe company’s. The profits constituted its factorage, its compensation, for carrying on the business. There is no question here between the State and the shoe company, or between the shoe company and the purchasers of the goods, or between the rubber company and the purchasers of the goods. The question here is between the consignor and the factor, and it is whether the consignor, which did not agree to do, and did not in fact do, the business of receiving, storing, and selling these goods, or the factor who did contract to do, and did actually do, the business of receiving, storing, and selling these goods, in Colorado, and who received the factorage therefor, was doing that business. In a simple transaction, the true answer seems clear. A farmer sends to a commission merchant in a city a dozen barrels of apples for him to sell. The factor puts them in his store, sells them, receives the proceeds, and remits them, less his factorage. The farmer from time to time sends 1,000 barrels during the season, and they are sold and the proceeds are remitted in the same way. The farmer is not carrying on the business of selling apples in the city, but the factor is. The transaction in hand is larger, but in every element which conditions its legal character and effect it is not different. The transaction between the parties to this suit was interstate commerce. The rubber company did not agree to do, and did not actually do, any of the business of receiving, storing, and selling the goods in Colorado. The shoe company did agree to do, and did do, that business. These facts have driven our minds with compelling force to the conclusion that, within the true intent and meaning of the constitution and statutes of Colorado, the rubber company was not doing business in that State, and the contracts between these litigants are valid and' enforceable.”

In the case of Re Monongahela Distillery. Co. (D. C.), 186 Fed. 220, Judge Denison said the following:

“The parties had been dealing for years on the ordinary basis of selling and buying, and such basis was changed only because the buyer’s financial standing became so poor that regular sales on credit were not safe. The seller, the Schufeldt Company, adopted this form only for the purpose of avoiding the risk of loss in making a sale on credit, and took no precautions not adapted to that end.' Obviously, when a consignor without the State ships goods to a factor within the State, retaining the title thereto, and contemplating sales by the factor to its customers within the State, the entire transaction partakes of the character of both interstate commerce and doing business by the consignor within the State. Under the rule stated in Higgins v. McCrea, 116 U. S. 671, 6 Sup. Ct. 557, to the effect that the contracts of sale made by a factor in his own name are in law the contracts of the consignor, it would seem that sales so made were sales by the consignor at the selling point, and that when, as in this case, the transaction was not a single instance, but both parties contemplated a permanent arrangement, disposing of a large amount of goods, it constituted doing business at that point; but such conclusion is only argumentative, and the contrary result is reached by the circuit court of appeals of the eighth circuit, in a very elaborate opinion in Butler Bros. Shoe Co. v. Rubber Co., 156 Fed. 1, 84 C. C. A. 167. This decision was made in 1907. A writ of certiorari was denied by the Supreme Court. 212 U. S. 577, 29 Sup. Ct. 686. It has been cited and followed by the circuit court of appeals in the seventh circuit (Atlas Engine Works v. Parkinson, 161 Fed. 229), and I cannot find that it has been in any way questioned. I therefore accept the rule there stated, and think that there are no circumstances in the present case distinguishing it from the Butler Bros. Case.
“The question of what is interstate commerce is a Federal question, and the decision of the Supreme Court of Michigan in Neyens v. Worthington, 150 Mich. 580 (114 N. W. 404, 18 L. R. A. [N. S.] 142), would not control, even if parallel; but the circumstances, 1, 2, 3, and 4, pointed out on page 586 of 150 Mich., on page 404 of 114 N. W., on page 142 of 18 L. R. A. (N. S.), fully distinguished the two cases on their facts.”

It will be noticed that in the latter opinion the Michigan case of Neyens v. Worthington, 150 Mich. 580 (114 N. W. 404, 18 L. R. A. [N. S.] 142), is distinguished from the Butler Bros. Shoe Co. Case, supra; and the conclusion might well be arrived at that, if that case can be distinguished from the rule established in the Butler Bros. Shoe Co. Case, the instant case might be also distinguished; because here we have a contract which clearly provides for the shipment into this State of the property of the medical company, to be stored and kept by the agent, who under the terms of the contract was to give his entire time to the business of the medical company, which business, it must be said, was to sell and dispose of the property so received in this State. Brace, the agent, signs the contract as salesman, and in the guaranty he is referred to as. the salesman of the plaintiff company. From the terms of the contract, it seems very clear indeed that what was intended thereby was to make Brace the salesman of the plaintiff company to carry on and develop its business in the territory assigned to him. It follows that, by a succession of such contracts and a division of the territory, the medical company could — and probably would — cover the State with salesmen, actively engaged in doing its business. To our minds, it would be rather anomalous to say that this would not be carrying on its business within the State.

In our opinion, the circumstances here are as convincing as those pointed out by Judge Denison in the Monongahela Distillery Co. Case, supra, which brought the case of Neyens v. Worthington, supra, from under the rule announced in the Butler Bros. Shoe Co. Case. On the facts, we believe the instant case is readily distinguishable from the Federal cases above referred to, as in both of those cases the factors maintained their own stores and warehouses and had their own customers, did not devote their entire time to the business of the foreign corporation, and were not designated their salesmen in the contracts.

We are of the opinion that it must be said that the plaintiff was carrying on its business in the State of Michigan within the meaning of said Act No. 310, Pub. Acts 1907. The trial judge arrived at a proper conclusion in so holding, and the judgment of the lower court is therefore affirmed.

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


source: Caselaw Access Project

author: Kuhn, J.

license: Public Domain

text:
    SMILANSKY v. WAYNE CIRCUIT JUDGE.
    Appeal and Error — Settlement oe Record — Bill oe Exceptions ■ — -Time—Extension oe Time.
    Where an order granting an extension of time for settling the record was entered by the circuit court under Chancery Rule 37, in order to permit complainant’s attorney to prepare amendments to the case proposed by defendant, a showing of the counsel for complainant that he would be engaged in other matters and would not be able to take up the settlement of the record on appeal within the statutory time allowed, was sufficient ground to sustain the action of the court granting the extension of time; the matter of sufficiency of the showing made being discretionary with the circuit judge.
    Mandamus by Louis Smilansky against Alfred J. Murphy, one of the circuit judges for the county of Wayne, to require the respondent to vacate an order extending the time for the preparation of a record on appeal.

      John Miner, for relator.

      Ralph B. Wilkinson, for respondent.
   Kuhn, J.

The relator was named as one of three defendants in a bill to foreclose a mechanic’s lien. After a hearing before the respondent, a decree was entered in that proceeding in favor of the complainant. the Grace Harbor Lumber Company, and the co-defendants, Ferdinand C. Ortman and Bartlett Supply Company, who had filed cross-bills against the relator. From this decree the relator appealed.

On August 15, 1914, the relator served upon the solicitor for the complainant a copy of his proposed case on appeal, with the stenographer’s minutes and original exhibits, and on August 17th served notice of such service of the proposed case upon the solicitors for the cross-complainants. No amendments were prepared to the proposed case within the 30 days allowed by Chancery Rule No. 37, and on September 23d the solicitor for complainant moved the court for an order extending' the time for filing and settling the appeal 45 days after September 17th. The reasons given in the motion were:

“ (1) The testimony and the case made by the complainant does not contain the final decree entered by the court in said cause.
“(2) It will be impossible to settle the case on appeal unless the time is extended for a period of 45 days.
“ (3) That the testimony and the case as settled by the solicitor for the defendant has not been served upon the cross-complainant, Ferdinand C. Ortman, or his solicitor, Eugene S. Clarkson.”

At the same time a motion was presented by the solicitor for relator, for an order requiring a return instanter of the case as settled by him, the stenographer’s minutes, etc. After taking testimony with reference to the motion of complainant’s solicitor, the respondent on September 26th made two orders, one extending the time for settling the claim of appeal to November 4th, the other denying the motion of the relator and requiring the solicitor for the relator to serve on the solicitor for the complainant within 10 days a copy of the findings of fact and the final decree entered in the case. Relator now asks for a writ of mandamus to compel the respondent—

“to vacate and set aside the said order granting an extension of time to the said complainant for the preparation of amendments, for the reason that no proper showing was made for such an extension; and to vacate and set aside the order directing a service of a copy of the opinion called findings of facts, and * * * to sign, settle, and certify the case of your petitioner, Louis Smilansky, in the manner and form as the same has been prepared and submitted.”.

The complainant having procured the findings of facts at its own expense, and having proposed them as an amendment, we need not consider the propriety of the respondent’s order requiring relator to furnish and serve them upon the opposite parties. We are therefore only concerned with the propriety of the court’s extending the time for the complainant to prepare amendments, instead of settling and certifying the case prepared by the relator. In his order extending the time for settling the case, respondent gave no reasons for his action. The other order, which denied relator’s motion and ordered a-service of the findings of facts and final decree on solicitor for complainant, contains the following recital:

“And it further appearing that at the same time there was presented to this court a motion by complainant asking for an extension of time to prepare amendments to the case made by defendant for reasons in said motion stated, which reasons appeared sufficient and adequate to the court, and an order having been made upon said motion extending such time to prepare, amendments to defendant’s case as made, to the 4th day of November, 1914.”

From this, the relator contends that the court extended the time for settling the case for the reasons heretofore quoted from complainant’s motion, and proceeds to attack these reasons, especially the third, regarding the lack of service of the case on solicitor for one of the cross-complainants. Chancery Rule No. 37 provides:

“(b) The person or party desiring to appeal to the Supreme Court shall, within sixty days after service upon him or his solicitor of record of written notice of the filing and entry of the final order or decree sought to be appealed from, serve upon the adverse party or his solicitor of record a copy of the proposed case on appeal, together with the original copies of such exhibits, papers,” etc.
“(c) Within thirty days after such service upon him or his solicitor of record, said adverse party or his solicitor of record shall cause to be served upon the party so seeking to appeal or his solicitor of record a copy of such amendments as he proposes,” etc.
“(d) The judge . * * * shall * * * proceed to consider the matter and to settle and sign said case on appeal: Provided, not more than one year from the date of the filing and entry of the final order or decree sought to be appealed from, shall in any case be allowed to take all the steps” required in perfecting the appeal.
“(e) In case of the failure of the adverse party to prepare and serve his amendments to the proposed case on appeal, together with the exhibits and other papers required by this rule to be served in connection therewith, the judge, * * * upon its being made to appear by affidavit, or otherwise” that appellant has done all things required, “shall certify and settle the case in the manner and form as proposed by the party seeking to appeal. * * *
“(h) The judge * * * may grant an extension or extensions of the time for making, settling, signing, and filing such case on appeal for such a period, in addition to the time hereinbefore allowed, as shall not make the whole time in which to settle said case exceed one year from and after the filing and entry of the final order or decree sought to be appealed from, but such extensions shall only be granted upon cause shown and due notice to the adverse party or his solicitor of record of the hearing of the application therefor.”

From the rule it appears that extensions of time “shall only be granted upon cause shown,” and the cause relied upon by solicitor for complainant and considered by the trial judge is shown by the following allegations from the petition for the order to show cause, which are admitted by the answer of the respondent:

“(15) That, on the said 26th day of September, the Grace Harbor Lumber Company was represented on the said motion by Ralph E. Routier, * * * but the said Ralph E. Routier was then and there sworn as to matters in addition to and supplementary to the grounds of the motion set forth in the affidavit attached to and made part of ‘Exhibit E/ hereinbefore referred to.
“(16) That the said circuit judge then and there, to wit, on the 26th day of September, 1914, declined to pass upon the motion. for the extension of time until a showing was made by Mr. Wilkinson, personally, of his situation and the reasons why he had not prepared his amendments by that date and the reasons why he asked an extension, and directed that such showing be made by affidavit on or before the following Wednesday, September 30, 1914.”
“(18) That on Wednesday, September 30, 1914, the matter of the motion for the extension of time by the said complainant, appellee, coming on to be heard, no affidavit,. as required by the direction of the court, was filed, but instead thereof Mr. Ralph B. Wilkinson was sworn and testified orally in support of his said motion, as also the said Mr. Routier, the substance of which showing by Mr. Wilkinson was that he had some other matters which required his immediate attention, and could not give it the time; and, second, that he had requested Mr. Routier to take charge of the matter because the said Routier was more familiar with the testimony, and that just prior to that time he had turned over to the said Routier two other records for the Supreme Court to get out; that the said Wilkinson was absent from the city between August 15th and August 26th; and the said Routier testified orally that he had other matters and did not think he could attend to this one unless the court granted an extension of 45 days. Whereupon the said circuit judge again declared his determination that he would not settle any case which did not embody the said opinion called findings of facts, and he also declared that an extension should be given, that the request was not an unreasonable one, and granted an extension until November 4, 1914.”

From the above, in our opinion, it cannot be said or claimed that the respondent relied, in granting the extension of time to solicitor for complainant to prepare amendments, upon all the reasons given in complainant’s motion. This is quite apparent from the fact that he required testimony in support of the motion to show diligence on the part of counsel for complainant. In our opinion, the only question which really is before us is whether the respondent abused his discretion in allowing an extension upon the cause shown by solicitors Wilkinson and Routier at the hearing on the motion.

It has been repeatedly announced by this court that an application for an extension of time in which to perfect an appeal is addressed to the sound discretion of the trial court, and that it must be clear that his discretion has been abused before the determination with reference thereto will be overruled. Lake Shore, etc., R. Co. v. Chambers, 89 Mich. 5. (50 N. W. 741); Lake Shore, etc., R. Co. v. Circuit Judge, 116 Mich. 399 (74 N. W. 529); Carrier v. Circuit Judge, 155 Mich. 344 (119 N. W. 575); Roberge v. De Lisle, 158 Mich. 16 (122 N. W. 362); Stockwell v. Circuit Judge, 172 Mich. 166 (137 N. W. 525). From an examination of the facts in this case, as herein set forth, we are unable to find any such abuse of discretion on the part of the circuit court as to warrant this court in overruling that discretion.

The writ is denied, with costs to the respondent.

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


text:
    ALDRICH v. J. CALVERT’S SONS.
    1. Appeal and Error — Exceptions — Saving Questions por Review — Practice.
    In, an action for breach of contract to furnish gravel where the contract provided the price of gravel should not exceed the price required or received by another competing company, and where the defendant moved to strike out the testimony relating to the market price on the ground that the contract stated the price received by the gravel concern should govern, the motion being denied by the court, there was no ground for the consideration and review of the contention that the contract was in restraint of trade and therefore illegal. In order that the point may be reviewed on error it is necessary to raise the same in the lower court and except to the adverse ruling.
    2. Sales — Contracts—Trial—Question for Jury.
    Where a contract for the sale of a quantity of gravel to be delivered to the defendant provided that the price should not exceed that charged by a competing company and the court submitted the case to the jury upon the theory that if the contract remained in force throughout the season and the parties did not mutually abandon its provisions, plaintiff was entitled to recover and that if the other dealer lessened the price the verdict should be correspondingly diminished, the construction of the contract was not thereby submitted to the jury so as to constitute reversible error.
    Error to Wayne; Hally, J.
    Submitted April 8, Í915.
    (Docket No. 27.)
    Decided June 7, 1915.
    Case by Byron S. Aldricb against J. Calvert’s Sons for breach of a special contract. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Ralph B. Wilkinson, for appellants.

      James Swan, for appellee.
   Kuhn, J.

The parties hereto entered into the following agreement:

“Agreement entered into this 11th day of February, 1911, between Byron S. Aldrich, of Detroit, Michigan, and J. Calvert’s Sons, of the same place, witnesseth:
“First. That said Aldrich, in consideration of the agreements of J. Calvert’s Sons hereinafter contained, agrees and binds himself to deliver to J. Calvert’s Sons, f. o. b. cars, Solvay dock, at such times and in such quantities as said J. Calvert’s Sons may direct, all the lake sand and gravel ordered by them for the season.of 1911.
“Second. That J. Calvert’s Sons agree that, upon delivery by said B. S. Aldrich of all sand and gravel ordered as above, they will pay therefor, within 30 days of the date of delivery, $0.50 for each cu. yd. of sand, and $0.75 for each cu. yd. of gravel, so delivered.
“Third. It is further agreed that J. Calvert’s Sons will pay 10 cents per yard extra for each and every car that may be shipped for their account direct to a consumer, as long as consumer’s prices of sand run from $0.90 to $1.20 and the consumer’s prices of gravel from $1.15 to $1.35. Should these prices be reduced, said B. S. Aldrich agrees to reduce price to J. Calvert’s Sons, or release them from further obligations hereunder.
“Fourth. Should the C. H. Little Company reduce the price of sand and gravel that would net J. Calvert’s Sons less than above prices, then B. S. Aldrich agrees to meet the C. H. Little Company’s prices on sand and gravel to J. Calvert’s Sons as long as C. H. Little Company’s reduced prices are in force, or release J. Calvert’s Sons from further obligations hereunder.
“Byron S. Aldrich.
-“J. Calvert’s Sons.”

Thereafter sand and gravel were delivered on this contract, and settlements were made monthly for all the sand and gravel delivered during the preceding month, and such as was delivered up to October 1, 1911, was paid for in full. It is the claim of the defendants that on or about October 1, 1911, the C. H. Little Company reduced the price on sand and gravel, and the parties do not agree as to how much the claimed reduction amounted to. It is conceded by plaintiff that he was told of the reduction of price by the C. H. Little Company, but he claims that the order upon which the reduction in price is based was “a fake order or a fake proposition upon the part of the C. H. Little Company,” a business competitor, in order to embarrass him. It is his claim that, when told of this, he said he would not meet the price and told the defendants to get it through Little, and that by this he released the defendants from any further obligations under the contract; that the contract was abrogated, and that he was entitled to charge the market price for all sand and gravel thereafter delivered, which it appears was only delivered to defendants upon orders. It is defendants’ claim that the contract still remained in force, and that the plaintiff was bound by the price charged by the C. H. Little Company. The issue thus formed by the contentions of the parties was submitted to the jury by the trial judge, with the following instructions:

“Did that contract continue in force as to both of these parties throughout the season, or was it by words or by conduct mutually understood that the contract was at an end? If you find that the contract remained intact throughout the season, then the parties would be bound by that contract, which remained intact throughout the season, and if, under the terms of that contract, that price was to be lessened, as some other dealer lessened it, and if you find the fact to be that the other dealer did in fact lessen it, and that the lessening of the amount leaves no balance due between these parties, your verdict will respond accordingly. If, on the other hand, you find that by conduct, or mutual consent, or words, the contract was terminated between these- parties, but thereafter they continued to do business, then from every yard of sand or gravel that was sold by the one and purchased by the other the purchaser would be obliged to pay whatever was the reasonable worth of it, or as the attorneys here express it, the market, value of that. From the evidence that has been here introduced, you are to say what that market value was. If you find that market value to be one thing, why then your verdict will have to respond in that fashion. If you find the market value to be as the plaintiff says it is, the plaintiff here or his attorney has given you the amount of money that he asks by way of judgment.”

Judgment being entered on a verdict in favor of the plaintiff, counsel for the defendants, who bring the case here, urges the following:

First. Error of the court in the admission of the testimony of Byron S. Aldrich as to the market price of sand and gravel. , '

Second. The court’s error in leaving the construction of the contract to the jury.

Third. The defendants were not bound to purchase from the plaintiff all the sand and gravel bought by them -in the season of 1911 when the plaintiff was unable to furnish the amount as ordered.

During the examination of the plaintiff, in order to show the market price in Detroit, the following was made to appear:

“Q. You knew the running price then in the market at Detroit?
“A. Yes, sir.
“Mr. Wilkinson: ■ I move to strike that out on the ground that it is not the market price. He said himself the C. H. Little Company were the only ones who furnished this stuff. Now, no basis has been laid for that. The contract simply mentions C. H. Little Company. The market price of the material. * *
* The contract refers simply to the C. H. Little Company, and it says that if C. H. Little Company shall reduce , that price .that he shall follow. The market price is entirely immaterial in this case, and especially in view of the testimony, that he says himself that C. H. Little Company is the only one bringing sand in here.
“A. I would like to qualify that statement. At the beginning of navigation that was so, but along about the summer time the firm of E. Jacques & Son got a dock down here on the river and they began to haul sand and gravel.
“Q. Now, then, state whether or not that' was the market price at that time.
“Mr. Wilkinson: Same objection and exception.
“Q. 75 cents for gravel and 50 cents for sand?
“A. That was the price I received from these other builders’ supplies the whole year; that was the contract.
“The Court: What was the price that the other people that were handling charged? What did Houghton charge?
“A. It was supposed to be the same price. It was rather of a gentlemen’s, agreement among the producers; we charged 75 cents and 50.
“Mr. Wilkinson: I object to that as contrary to the statute of the State of Michigan, contrary to public policy.
“The Court: Could that objection be made in this proceeding, Mr. Wilkinson?
“Mr. Wilkinson: I presume so, because he says that prices were fixed by gentlemen’s agreement.
“Q. After November — October 31st, or November 1st — -when you had the conversation with Mr. Calvert ?
“A. Well, the price was even more; that is because, as the season advanced, the dealers raised the price 10 and 15 cents a yard.
“Mr. Wilkinson: I object to that also, and move that it be stricken out, on the ground that the contract states that the C. H. Little Company’s price is the determining price for this contract.
“The Court: You may have an exception.”

It is urged by counsel for appellant that the testimony with reference to market price should have been stricken from- the record, because it showed that there was an agreement made between persons engaged in this business as to price in direct violation of section 11377, 3 Comp. Laws (5 How. Stat. [2d Ed.] §14753). This statute in substance declares all contracts in restraint of trade to be illegal and void, and makes all parties offending against its provisions guilty of a conspiracy, and inflicts a penalty. From the record above quoted it does not appear that the court ruled upon this question, or that any exception was taken thereto. The only motion with reference thereto was that the answer be stricken out on the ground that the contract stated that the C. H. Little Company’s price was the one which should determine, and this motion was denied by the court. We are of the opinion that the matter is not before us on this record, and are satisfied that there was sufficient evidence of the market value of sand and gravel to submit the question to the jury.

We do not think that the second ground urged by appellant, that the court left the construction of the contract to the jury, has any merit, as a careful examination of the entire charge, read as a whole, is satisfying that the real question in issue was fairly presented to the jury, as is clearly indicated by the excerpt from the charge set forth in this opinion. The following statement is made in appellant’s brief:

“The question arose as to whether by the terms of the contract the defendant was obliged to purchase all of its sand and gravel from the plaintiff.”

The record does not show that any such question was raised, nor was there any such contention or claim made by the counsel for plaintiff, either in his brief or on the oral argument.

We are of the opinion that the real question in issue was properly submitted to the jury, and the judgment of the lower court should be, and therefore is hereby, affirmed.

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


text:
    McGURRIN v. GRAND RAPIDS TOWNSHIP BOARD.
    1. Certiorari — Issues—Evidence—-Return—Conclusiveness.
    In proceedings in certiorari to review the action of a township hoard or official in granting a liquor license, the return to the writ must show all the jurisdictional facts; the petitioner cannot rely on facts shown by the affidavit or petition.
    2. Same — Issues Involved — Affidavit.
    Questions of law only are presented by proceedings in certiorari, and the issue is presented by the record as made from the return filed.
    3. Same — Intoxicating Liquors — License.
    2 Comp. Laws, § 5443 (2 How. Stat. [2d Ed.] § 3746), provides a fine and imprisonment for the violation of its provisions relating to the location of a saloon within one mile of the Michigan Soldiers’ Home, and thereby furnishing its own means of enforcement.
    4. Same.
    No practice permitting the circuit court to frame an issue of fact in certiorari proceedings is recognized, as in proceedings for mandamus. The return may be required to answer the averments of fact contained in the petition, but the court cannot look beyond admissions and allegations of the return.
    Case-made from Kent; Brown, J.
    Submitted April 28, 1915.
    (Docket No. 58.)
    Decided June 7, 1915.
    Certiorari by William T. McGurrin against the township board of Grand Rapids township, in the county of Kent, to review the action of the board granting a retail liquor license. Judgment for plaintiff; defendant board brings case-made.
    Reversed.

      Lombard, Hext & Washburn, Corwin & Souter, and Travis, Merrick & Warner, for appellant.

      Edward N. Barnard, Prosecuting Attorney, and William K. Clute, Assistant Prosecuting Attorney, for the people.
   Kuhn, J.

This is a case-made to review proceedings by certiorari brought to review the action of the township board in approving an application and bond for a saloon license. The affidavit in support of the writ was made by the relator, who' is the commandant of the Michigan Soldiers’ Home, and alleges, in substance, that the board had unlawfully approved the application and bond of one Charles Van Steenberg to maintain a saloon in said township, for the reason that the saloon was within one mile of “the home for disabled soldiers, sailors, and marines” established by the State of Michigan. In the petition for the writ the following appears:

“This affidavit is made for the purpose of procuring and in support of a writ of certiorari to review the proceedings of the township board in the premises, and to reverse, vacate, and set aside the proceedings of said township board.”

In the writ issued by the circuit court the command reads as follows:

“That you distinctly and openly certify the records and the proceedings in said matter to the said circuit court, that the said circuit court may have them at the said circuit court in the city of Grand Rapids on the 27th day of July, A. D. 1914, at 10 o’clock in the forenoon, that said court may cause to be done thereupon what by right ought to be done, and have you then and there this writ.”

The return to the writ sets up the proceedings of the-township board meeting, showing the accepting of the application of Charles Van Steenberg for a liquor license, the approving of'his bond, and, further, the extension of time from 9 p. m. to 11 p. m. was granted him during which his saloon might be kept open.

On the hearing of the matter in the circuit court counsel for respondent moved to dismiss the writ for the reason that the return, which was in full compliance with the command of the writ, did not show want of jurisdiction on the part of the respondent to accept the application and approve the bond. This motion was denied by the court, and an issue was ordered framed and proofs taken to determine the truth, of the allegation in the affidavit filed to obtain the writ. In view of the conclusion that we have reached, the only question which it is now necessary for us to consider is whether or not the court erred in refusing to grant the motion made by counsel at the opening of the hearing and dismiss the writ.

It is a general rule, and it seems to be well established in this State, that the office of the common-law-writ of certiorari is to bring up for review the proceedings of the lower court or the proceedings of an official board, to determine whether such court or board acted within its jurisdiction, or to review the manner in which the jurisdiction was exercised, but not to review questions of fact. We have been unable to find any authority warranting the practice here indulged in of directing and permitting the framing of an issue for the purpose of taking proofs in certiorari proceedings. The rule seems to be properly stated by Mr. Stevens in his work on Michigan Practice, vol. 2, p. 510:

“There is no practice in certiorari which permits the framing of an issue as. in mandamus cases. Furthermore, as a general rule, ‘the return to a certiorari must show everything upon which the plaintiff relies for relief, and, if the return is insufficient, he must cause it to be supplemented by amendment. He cannot rely upon the affidavit for the certiorari to supply the deficiencies of the return.’ The affidavit cannot in general be used ‘to establish a fact not found in the return.’ ”

It is urged by counsel for appellee that, while it is true that only errors of law can be tried on certiorari, and that the return is not traversable, where the question is upon a jurisdictional ground, and the return is silent with reference thereto, the allegations of fact in the affidavit showing such total lack of jurisdiction are presumed to be true, and that the respondent intended by its silence to admit them. The case of Wilson v. Township Board of Burr Oak, 87 Mich. 240 (49 N. W. 572), is relied upon to sustain this contention, where Mr. Justice LONG, in writing the opinion, after having given other reasons for quashing the proceeding for laying out a highway, said:

“We think also that the township board erred in proceeding to lay out the highway, if Whitmer and Bishop, two of the members of said board, or either of them, were financially interested in its being laid out. The board makes no return to this allegation in the affidavit upon which the writ of certiorari was issued and, there being no contradiction of the affidavit, we must take the affidavit as true.”

An examination of the original record of this case shows that the' return of the township board to the writ issued by this court sets up copies of all the records, papers, and petitions in laying out the road in question and all the transactions thereof, including affidavits filed with the board showing the disqualification of the members in question, and no denial is made by the board. It therefore appears that this court did not go dehors the record made by the return in determining the case. No such situation is here presented, as the return does not disclose that the question of the distance of the saloon from the soldiers’ home was ever called to the attention of the township board, and is silent with reference thereto. While it may be said that, where the return which constitutes the record shows jurisdictional facts, they are to be considered admitted if not denied, we have not been able to find any authority in this State which holds that the simple allegation of such facts in a petition for the writ, concernihg which no return is required or made, can be said to be admitted. While it may be true that the court in its command might have required 'the respondent board to make answer, to any allegations in the affidavit as to jurisdictional matters, if any there were, nevertheless in- the instant case the court did not do so, and the return as certified was a full compliance with all that was .required by the writ. 6 Cyc. p. 830.

In the case of Jackson v. People, 9 Mich. 111, at page 120 (77 Am. Dec. 491), this court said:

“Where facts exist which, if apparent, would have ousted 'the jurisdiction, they have been allowed to be set forth in the affidavits of the relator, and a response’ required.”

In Mann v. Tyler, 56 Mich. 564, at page 567 (23 N. W. 314, at page 315), Mr. Justice Cooley, in speaking of the office of the writ of certiorari, said:

“But in suing out the writ of certiorari the party elects to rely upon , such return as he is- able to obtain, and he can claim no errors as grounds of reversal that are not shown by it. People v. Hobson, 48 Mich. 27 [11 N. W. 771]; Rawson v. McElvaine, 49 Mich. 194 [13 N. W. 513]. An argument that seems to render probable that an error exists which the return does not show is of no avail whatever.”

In Whitbeck v. Common Council, 50 Mich. 86, on page 87 (14 N. W. 708, at-page 709), it is said:

“The general rule undoubtedly is that the return to a certiorari must show everything on which the plaintiff relies for relief, and that, if the- return is insufficient, he must cause it to be supplemented by amendment. He cannot rely, upon the affidavit for the certiorari to supply the deficiencies of the return.”

In Hewitt v. Judge of Probate, 67 Mich. 1 (34 N. W. 659), the syllabus reads as follows, which seems to be supported by -the text of the opinion-:

“An affidavit for certiorari cannot be used to establish a fact not found in the return, from which the court must obtain the Tacts in controversy.”

It is true, as said in the opinion of this court in Booker v. Medical College, 156 Mich. 95 (120 N. W. 589, 24 L. R. A. [N. S.] 447), by Mr. Justice OsTEANDEE, that:

“In certiorari proceedings this court considers questions of law only, and such questions of law as are supposed to be presented in the particular case must be raised in the affidavit for the writ.”

See, also, 5 Ruling Case Law, p. 253, under title “Certiorari.” But the record for the determination of this question is' made, under the authority of all the decisions in this State, by the return. See, also, In re Erdman’s Estate, 179 Mich. 567 (146 N. W. 400).

It might be suggested that the statute which is sought to be enforced by means of the writ of certiorari provides for its own means of enforcement by fine and imprisonment. Act No. 31, Pub. Acts 1887; section 5443, 2 Comp. Laws (2 How. Stat. [2d Ed.] §3746).

We are of the opinion that the question as to the distance of the saloon in question from the soldiers’ home was not before the circuit court for consideration upon the .proceedings therein pending, and that it was the duty of the court, upon the record as made by the return, to grant the motion made to dismiss the writ.

The writ must be quashed, with costs to appellant.

Beooke, C. J., and McAlvay, Stone, Osteandee, Bied, Mooee, and Steebe, JJ., concurred.


author: Kuhn, J. Ostrander, J.

text:
    PEOPLE v. HARRINGTON.
    . 1. Criminal Law — Evidence — Assault with Intent to Rape — Statutory Rape.
    Testimony that the complaining witness complained to her uncle of an alleged indecent assault committed hy respondent in an express car, and what she stated in that connection, where the girl was about 14 years of age, and the account was given directly after she left the train at its destination, was competent. Ostrander, Bird, and Moore, JJ., dissenting.
    2. Same — Evidence—Complaint.
    That the uncle tried to learn the name of the guilty person was not erroneously received in evidence, though immaterial, as it did not prejudice the accused.
    3. Same — Offenses Included — Charge.
    The court did not commit error in instructing the jury that the information, which charged respondent with an assault with intent to commit rape under 3 Comp. Laws, §11490 (4 How. Stat. [2d Ed.] § 14543), would warrant a conviction of assault with intent to commit rape or of simple assault.
    4. Same — Heabsa.y—Deposition.
    Though a deposition taken upon preliminary examination should not he used as substantive evidence, if it is possible to produce the witness upon the stand, the prosecuting attorney did not commit harmful' error in reading during the argument from a deposition of one of the witnesses taken on the examination, which respondent’s attorney had introduced in evidence with the understanding .that the testimony might be read in the course of the argument.
    5. Same.

      Held, that the evidence, as shown hy the record, warranted the jury in finding a verdict of guilty.
    Exceptions before sentence from Houghton: O’Brien, J.
    Submitted April 23, 1915.'
    (Docket No, 118.)
    Decided June 7, 1915.
    Rehearing denied July 23, 1915.
    Robert E. Harrington was convicted of assault with intent to ravish.
    Affirmed.

      William J. Galbraith, Prosecuting Attorney, for the people.

      Burritt & Burritt, for respondent.
   Kuhn, J.

The respondent was convicted of an assault with intent feloniously and unlawfully to carnally know and abuse Nellie Ball, a female child under the age of 16 years, to wit, of the age of 14 years, under section 11490, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14543). The case is brought here on exceptions before sentence.

The respondent on the 26th day of July, 1914, was working as a brakeman for the Copper Range Railroad Company, and on the afternoon of that day met Nellie while his train was at Freda Park, a station about 16 miles from Houghton in this State, and a short distance from Freda,-where Nellie lived, which is the first station north of Freda Park. They became acquainted through a flirtation, and, upon entering into a conversation, defendant asked her what she was mad about. She answered, “Because no one would take me home.” He thereupon replied, “I will take you home,” and they then walked on together until they reached a ear, and, upon being invited by respondent, Nellie entered the car. This car had two compartments, one used for passengers and the other for express, connected by a door. The respondent took Nellie into an express compartment.

Nellie did not leave the train at Freda, but went through to Houghton, and it is her claim that before the car started from Freda Park, and while on the way from that station to Houghton, the respondent kissed her, took liberties with her person by putting his hands under her clothes, exposed her leg to. the conductor, made remark;? concerning it, and attempted to pull her onto a box; that he had her on the box once, and on his lap; that he told her obscene stories, felt of her breast, and put his hand inside her waist, and, when they left Beacon Hill Station, she said:

“I stood and I looked' out of the window in the , door, and he was behind my back, and he was bumping behind my back.
“Q. Move his body toward you?
“A. Yes.
“Q. Did he expose any of his person to you?
“A. He showed me something on him through his clothes right there (indicating).”

It is her claim that she pushed him away and tried to avoid his attention, and tried to get off the train at Freda station, but that respondent held her; that she did not make any outcry because she was afraid respondent would choke her or put a handkerchief in her mouth. She also claims that Harrington said that when they arrived at Houghton he would take her to an hotel for supper, and take her to a picture show. When the train arrived at Houghton, Nellie left it, and met an uncle on the station platform, who rode from Freda Park to Houghton on the same train, and stated on the witness stand that:

“I told him a man put me on at Freda and held me on the train and took me to Houghton, would not let me off. I told him he was a short man and fat, and he asked me what he told me his name was, and I said Joe Shea, and my uncle went to look around for him. He tore my dress on one side about that big (demonstrating). He tore it in front on both sides. It was a white dress. After I told my uncle the story, he went upstairs in the Houghton depot and was trying to find out the man’s name.”

The claimed improper conduct of the respondent toward Nellie was corroborated by the fireman on the train, who testified that he was on top of the tender of the engine and looking through the window of the baggage car while the train was standing at Freda Park, and that he saw the respondent have his hand under Nellie’s clothes, and demonstrated it in such a manner as to show that Harrington had his hand clear up under her clothing above her knees. The respondent admitted that while the car was at Freda Park he kissed Nellie and put his hands under her clothes on the leg below the knee, but it is his claim that he did this in a spirit of fun; and also admitted telling the indecent stories; but denies that he took any other liberties with her. The conductor and another brakeman both testified that they were in the car, and saw nothing improper in the conduct between respondent and Nellie.

The errors relied upon are stated by counsel as follows:

(1) Error committed by the court in permitting the witness Nellie Ball to testify to what her uncle did after she told her story to him; and also in overruling defendant’s objection to the following question asked the witness: “Q. When you met your uncle, state if you told your uncle anything at that time.” And permitting the witness to testify in detail what she told her uncle; and also in overruling the defendant’s objection to permitting the uncle to testify in detail what Nellie told him when they met at the depot.
(2) Error by the court in holding and deciding that a girl 14 years of age has not the power to consent to taking liberties with her person.
(3) Error in permitting the-prosecuting attorney to read from the deposition of Nellie Ball in the closing argument to the jury.
(4) Errors in the charge of the court and in the refusing to charge as requested.
(5) Error in denying defendant’s motion for a new trial.

We have above set forth the testimony from the record showing what was told by Nellie to her uncle upon her arrival at Houghton. Considering the fact that this conversation occurred immediately after the commission of the offense, and also considering her years, we are of the opinion that it was not improper for the trial court to admit her testimony as to what she stated to her uncle, and also her uncle’s testimony as to what she said to him. Brown v. People, 36 Mich. 203; People v. Brown, 53 Mich. 531 (19 N. W. 172); People v. Gage, 62 Mich. 271 (28 N. W. 835, 4 Am. St. Rep. 854); People v. Bernor, 115 Mich. 692 (74 N. W. 184); People v. Marrs, 125 Mich. 376 (84 N. W. 284). It is true that her statement as to what her uncle did after she told him what had occurred is entirely immaterial, but it does not occur to us that the mere fact that he went upstairs in the depot and tried to find out the man’s name could, by its introduction in evidence, have prejudiced the respondent’s case.

It is the contention of counsel for respondent that the court erred in holding that a girl 14 years of age has not the power to consent to taking liberties with her person, and attention is called to section 11719, 3 Comp. Laws (5 How. Stat. [2d Ed.] §14817), which makes an assault upon a female under the age of 14 years by taking indecent and improper liberties with the person of such a child a felonious assault. The court charged the jury that, under the information filed in this case charging respondent with an assault with intent to commit rape, the respondent might be found guilty either of an assault with intent to commit rape or of a simple assault. We think that, under the testimony shown by this record, this charge of the court was proper, as the information does not charge the offense alleged in said section 11719, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14817). It simply charges an assault with intent to commit rape, and, if the jury had found that the intent essential for the commission of the major offense was absent, clearly, under the facts here disclosed, the jury might have been warranted in finding respondent guilty of a simple assault, irrespective of the age of the girl.

With reference to. the contention of counsel concerning the reading of the deposition of Nellie Ball in the closing arguments to the jury, the record discloses that while she was upon the witness stand the following occurred:

“Mr. Burritt: We would like the privilege of examining her testimony. We offer in evidence, if the court please, with the privilege of course of reading to the jury, the testimony of this witness taken on the examination.
“Mr. Lucas: I object, excepting to such parts as read to the witness, and giving her an opportunity to explain.
“Mr. Burritt: She may take the stand and have it all read then, and after it is read she may take the stand and explain any portion of it she wants to. We offer the testimony taken at the examination and wish to read it to the jury and see the discrepancies, if any.
“The Court: The testimony will be admitted, and it may be read to the jury now, if you wish. The witness may look over the evidence, and you can look it over at noon, and, if you wish to call her to explain any portion of it, you may do so, so, in that event, you need not read it now, but you may read it in your argument.
“Mr. Burritt: We can read it in our argument.
“The Court: You can read it in your argument, or any part of it.”

Counsel for respondent did not comment upon this testimony of the witness taken upon examination during his argument, but the prosecutor did refer to it during his closing argument, and read the abstracts from it. Counsel for respondent objected on the ground that it could not be read to the jury as substantive proof of any fact or facts. Thereupon the court said:

“The jury will not regard it as substantive proof, but I shall hold the prosecuting attorney can read it in answer to the argument of the attorney for respondent. Simply by way of argument.”

It is true that this court has held that a deposition taken upon the examination should not be used as substantive evidence, where the witness herself could be produced upon the stand. People v. Miner, 138 Mich. 290 (101 N. W. 536), citing the case of People v. Elco, 181 Mich. 519, 523 (91 N. W. 755, 94 N. W. 1069). In the instant case, however, the deposition was introduced by counsel for the respondent for the very purpose of using it in argument. The testimony of the witness herself was had upon the trial, and the court expressly directed the jury that the deposition should not be used as substantive proof, but only by way of argument. In view of the situation thus created, we do not think it can be said to have been error to allow the deposition to be used in the way that it was.

We have carefully examined the charge of the court, and are satisfied that the rights of the respondent were properly conserved, and that the issue was fairly and impartially presented to the jury. We are further satisfied that the evidence in the case shown by the record is sufficient to warrant the jury in concluding that the respondent was guilty of the offense charged beyond a reasonable doubt, and the court was therefore justified in denying respondent’s motion for a new trial.

Because of these conclusions, it follows that the conviction of the respondent must be, and is hereby, affirmed, and. the trial court is advised to proceed to judgment.

Brooke, C. J., and McAlvay, Stone, and Steere, JJ., concurred with Kuhn, J.

Ostrander, J.

(concurring). The testimony of the conversation occurring between the complaining witness and her uncle at Houghton, if treated as a statement by her of the details of the indignity charged in the information, should have been excluded. The general rule which excludes it is a salutary rule. The exception to which attention is directed in the opinion of Mr. Justice Kuhn ought not to be extended, and I think it will be regarded as having been extended if the ruling of the lower court in this case is approved. I agree with Mr. Justice Kuhn in saying that the testimony was immaterial, which is another and sufficient reason for excluding it. And I also agree, but with some hesitation, to the conclusion that the ruling was not prejudicial to respondent.

Bird and Moore, JJ., concurred with Ostrander, J.


author: McAlvay, J.

text:
    PEOPLE v. WHEELER.
    1. Criminal Law — Appeal and Error — Cross-Examination — Trial.
    In a prosecution under the liquor law it was within the discretion of the trial court whether the prosecutor should he allowed to ask leading questions of a witness who appeared to he ignorant.

      2. Same — Intoxicating Liquors — Saus—Evidence.
    Proof that respondent, who was charged with keeping a place where intoxicating liquors were sold contrary to law in a county which had adopted prohibition, made sales at the time fixed in the information and on one other earlier date not definitely established by the testimony, tended to show a violation of the statute and warranted the court in submitting to the jury the issues whether the defendant kept a place where such liquors were sold.
    Exceptions before sentence from Hillsdale; Chester, J.
    Submitted April 22, 1915.
    (Docket No. 164.)
    Decided June 7, 1915.
    Carl Wheeler was convicted of a violation of the local option law.
    Affirmed.

      Frank M. Hall, Prosecuting Attorney, for the people.

      Paul W. Chase and Clayton A. Powell, for respondent.
   McAlvay, J.

Respondent was prosecuted and convicted in the circuit court for the county of Hillsdale with having kept in the city of Hillsdale, in said county, on December 23, 1913, “and for, to wit, sixty days preceding that date,” a place where spirituous and intoxicating liquors “were sold, kept, and stored for sale, given away, and furnished, he * * * not being then and there a druggist or registered pharmacist,” contrary to the provisions of what is known as the “Local Option Law” of this State. Upon the trial it was conceded by respondent and his counsel that on the date charged when this offense was committed local option was in force within the county of Hillsdale, and also that during this period respondent was not a druggist or registered pharmacist.

- ’he material facts in the case are that on December 23, 1913, three brothers, named Kellar, drove over in a single buggy to the city of Hillsdale from the farm of their parents, located near Reading, about eight miles distant, where they arrived about 7 o’clock in the evening. They immediately put out the horse and went to a place known as 66 North street in the city of Hillsdale, kept by respondent. They entered by a side door into a room next to a dance hall, where they were met by respondent, who asked one of them if he wanted some “cold tea,” and, being answered “Yes,” he brought in on a tray three glasses of whisky. He seated them in this room upon two leather benches and served the liquor, which they drank and paid for. Following this, respondent, upon the order of some one of these men, repeated this service of liquor, furnishing them each time the same amount, and received in payment therefor, made by the persons who gave the orders, the sum of 40 cents for each “round.” The two witnesses who were sworn testified that the liquor produced and drank by them was whisky. They remained in this place about an hour, and when they had finished drinking this whisky went out and purchased some Christmas presents. One of the brothers, when he had proceeded as far as Howell street, became quite intoxicated and was taken to jail by the sheriff, where he remained all night. The others drove home in safety, and two of them returned to town the next morning, and the three went with the sheriff to the prosecutor’s office, and a. statement was made by them under oath where they had procured the liquor.

There is evidence in the case tending to show that at least one month before this date two of these brothers, William and James Kellar, were in respondent’s place, where they purchased and paid for three or four drinks of whisky each, and on that occasion they also called for “cold tea.” The only witnesses who testified on the part of the prosecution were James and William Kellar. On the part of respondent no witnesses were sworn. At the close of taking the proofs a motion was made on the part of respondent to direct a verdict of not guilty, on the ground that there was not sufficient evidence in the case “as would warrant a jury in bringing in a verdict of guilty on the charge as set forth in the information.”

The first assignment of error relates to the redirect examination of the witness William Kellar, in which the witness stated that he had told a story to the officers the next morning in the prosecutor’s office, and was asked the following questions:

“Q. Now, very soon after that, did you testify in Justice Weaver’s court over here?
“A. Yes, sir.
“Q. Very soon after Christmas?
“A. Yes, sir.
“Q. At that time your recollection probably would be better than it is now?
“A. Yes.
“Mr. Chase (counsel for respondent): Just a minute. I insist that the witness answer these questions, and not the prosecuting attorney. They are leading and suggestive.
“The Prosecutor: Well, I think on this matter I am entitled to ask them.
“Mr. Chase: We object to it.
“The Court: I think the answer may stand. The question is somewhat leading, though.
“Q. Now, at that time did you testify that you had been in that place a month before that?
“A. Yes, I did.”

Both before and after this it appeared that this witness was densely ignorant. He testified that he and his brother could neither read nor write, that he had no schooling, and his examination certainly confirms such statement. The only exception taken was that the questions were leading and suggestive. No motion was made to strike out the testimony. We think the court was justified in allowing considerable latitude in the examination of such a witness. On recross-examination, counsel for respondent was allowed to cross-examine as much as he desired. The matter objected to was within the discretion of the court, and in allowing the answer to stand the court committed no error.

The second and third assignments of error may be considered together. They allege error in overruling defendant’s motion to be discharged on the ground that there was no evidence to support the charge in the information, and that there was a fatal variance between the averments of the information and the evidence in * the case. The first proposition would seem to indicate that it is the contention on the part of respondent that under an information charging the statutory offense of unlawfully keeping a place where intoxicating liquors are sold, stored for sale, given away, or furnished in any local option county, charged as in this case to have been conducted for six months, it requires proof tending-to show continuous operation during the period alleged. The evidence in the case tended to show that intoxicating liquors were sold by respondent at his place on December 23, 1913, and also on one earlier date, which is not fixed with certainty. The weight to be given to this evidence was a matter for the jury to determine, and the court in his charge fairly and carefully submitted this question to the jury, to which charge no exception was taken.

The jury, from the verdict rendered in the case, evidently believed the testimony of these witnesses, and in our opinion the verdict was justified. We are satisfied that the evidence supported the charge that respondent was guilty of keeping a place in the city of Hillsdale where intoxicating liquors were sold contrary to the provisions of the local option law. We find no error in the case.

The conviction is therefore affirmed, and the case is remanded to the circuit court, to take such steps as may be necessary to carry such conviction into effect.

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


text:
    CITIZENS’ BANK OF RUDYARD v. CHIPPEWA CIRCUIT JUDGE.
    1. Conflict of Laws — Private International Law — Jurisdiction —Action Pending.
    When a foreign railroad company incorporated also in Michigan is sued in both jurisdictions, the forum which first acquires jurisdiction is entitled to proceed with the cause.
    2. Garnishment — Lien—Precedence.
    By service of the writ of garnishment, the foreign court obtained a first specific lien upon the debt, the situs of which became fixed.
    3. Same — Claimant'—Intervening Party.
    Where a railroad company was garnished in a foreign State, and a third party claimant was cited in as authorized by statute, it became a party to the proceeding to the same extent and with equal responsibilities ás its assignor, the principal defendant.
    4. Same — Abatement.
    The existence of a pre-existing action in such foreign jurisdiction being duly presented to the court, it properly held the action in abeyance pending a disposition of the first cause.

      Mandamus by the Citizens’ Bank of Rudyard against Louis H. Fead, circuit judge for the county of Chippewa, to vacate a stay of proceedings in an action in which the Minneapolis, St. Paul & Sault Ste. Marie Railway Company was defendant.
    Submitted April 27, 1915.
    (Calendar No. 26,609.)
    Writ denied June 7, 1915.

      Albert E. Sharpe and M. M. Larmonth, for relator.

      Warner &. Sullivan, for respondent.
    In this proceeding we are asked for a mandamus to require the respondent to set aside an order in a suit now pending in the circuit court for the county of Chippewa, in which the petitioner is the plaintiff, and the Minneapolis, St. Paul & Sault Ste. Marie Railway Company is defendant. The action is in assumpsit, and the defendant pleaded in- abatement certain foreign garnishment proceedings, the facts concerning which are admitted, and are stated in the opinion of the lower court as follows:
    “(1) The defendant is a railroad corporation, incorporated in the States of Michigan, Minnesota, Wisconsin, and North Dakota, having lines of railroad and doing business, in the States, of Michigan and. Minnesota, with its principal office or headquarters at Minneapolis, Minn.
    “(2) On September 29, 1913, defendant offered to purchase certain railroad ties from one C. F. Sheldon, a resident of Michigan, which offer was acted upon by Mr. Sheldon, who completed the delivery of such ties on or about October 31, 1913. The ties were delivered in Michigan for the use of defendant on that part of its road situated in this State. The agreed price of the ties delivered was $1,064.50.
    “(3) Before the delivery the plaintiff herein, a resident of Michigan, received from Sheldon an assignment of his account against the defendant in the form following:

      “ ‘Rudyard, Michigan, Oct. 14, 1913.
    “‘E. T. Stone, Purcbasiug Agent,
    ‘“Soo Road,
    “ ‘Minneapolis, Minn.
    “ ‘Please pay to Citizens’ Bank of Rudyard, Michigan, any money now due or to become due for ties shipped on your offer to me of September 29, 1913.
    [Signed] “‘C. P. Sheldon.’
    “(4) On October 16, 1913, plaintiff mailed said order to defendant at Minneapolis, where it was received by the latter on or about October 18th. Accompanying the order was a letter written by plaintiff as follows:
    “‘Rudyard, Mich., Oct. 16, 1913.
    “‘E. T. Stone,
    “ ‘Minneapolis.
    “ ‘Dear Sir:

    “ ‘Inclosed find order given by Mr. Sheldon. As I understand it, he expects to load ties here and that you are to forward payments of same to us.
    “‘W. M. Batdoree, Cashier.’
    “(5) On November 7, 1913, garnishment process was served on defendant in the State of Minnesota, in a suit in the district court of the eleventh judicial district of Minnesota, in the county of St. Louis, between the McGillis & Gibbs Company, a corporation, as plaintiff, and said C. F. Sheldon, as defendant. A transcript of the proceedings was offered in evidence.
    “These "garnishment proceedings purport to be based upon a judgment rendered in the municipal court for' the city of Duluth in a suit between the Mc-Gillis & Gibbs Company and Sheldon, on December 30, 1910. A transcript of the judgment was filed in said district court on January 4, 1911, The proceedings in the municipal court are not set up, nor does it appear whether service, or what kind, was had upon Sheldon. In the affidavit for transcript, made on January 3, 1911, Sheldon is said to be a resident of St. Louis county. In the garnishment proceedings, on November 11, 1913, he is said to be, and is proceeded against as, a nonresident of Michigan.
    “The disclosure of the garnishee is not set up in the transcript. However, on December 26, 1913, some proceedings were apparently had for the purpose of bringing in the plaintiff herein as claimant to the debt, but they were apparently abandoned.
    “On May 19, 1914, a new order, requiring plaintiff to appear within 20 days after service of the order on him and prove its claim or be barred was made and personally served on the plaintiff in this county of Chippewa on June 6, 1914. This order appears to have been made by the court, and is attested by the clerk of the court through his deputy. On July 2, 1914, counsel for plaintiff in such suit gave notice to defendant garnishee that on July 11, 1914, it would move the court to bar plaintiff’s claim and for judgment against the garnishee. Whether such action was taken does not appear. Notice of the pendency of the suit at bar seems to have been given in such garnishee suit on July 18, 1914.
    “The examining officer is the clerk of the district court. By what authority he became examining officer does not appear.
    “This transcript was admitted tentatively over the objection of plaintiff’s counsel that it was not a complete transcript of the proceedings; that the judgment upon which the garnishment proceedings are based was rendered in a municipal court, and no copy of the complaint therein appears in the transcript; and that there is no proof of any service, either personal or substituted; and also, generally, that it would constitute no defense to plaintiff’s action.
    “(6) On April 1, 1914, suit was begun in the district court of the fourth judicial district of Minnesota, in the county of Hennepin, by Page & Hill Company, a Minnesota corporation, as plaintiff, against said C. F. Sheldon, as defendant. On April 25th an affidavit of his nonresidence was made, and he was proceeded against as a resident of Sault Ste. Marie, Mich. A copy of summons was mailed to him on July 24, 1914, and publication begun July 29th.
    “Garnishee process was served on defendant, April 4th. One D. E. Bridgman was appointed examining officer by the judge of said court. On April 25th the garnishee defendant made its disclosure, setting up that:

      “ ‘On April 4, A. D. 1914, the time of the service of garnishee summons herein on said garnishee, there was due and owing the defendant above named from said garnishee the sum of $1,064.50, as payment for ties delivered to the Soo Line at Rudyard, Mich., subject to a purported assignment to the Citizens’ Bank of Rudyard, Mich., of all money due the said C. F. Sheldon from the said Soo Line Railway Company, of which the following is a true copy: [Here follows a copy of the order as above set forth]; that said purported assignment was forwarded with the following letter [letter as above set forth]. Said sum being further subject to a prior garnishment [setting up the St. Louis county proceedings].’
    “On July 13th the examining officer made an order that plaintiff ‘be notified to appear in this proceeding or be barred of its claim, and that said notice be served on such bank by three weeks’ published notice thereof in a newspaper published in Hennepin county, Minn., and by mailing a copy of such notice to said bank before the first publication thereof, addressed to its place of business at Rudyard, Mich.’
    “On July 13th the attorney for Page & Hill Company mailed a notice of the order made by the examining officer to plaintiff, and publication was had beginning July 29th, and ending August 12th. Twenty days after service was allowed plaintiff to appear. The transcript of these proceedings was offered and received in evidence under the objection of plaintiff’s counsel that it is inadmissible and irrelevant, ‘because, even if it is true, it would constitute no defense to plaintiff’s action.’ No other objection was made, and it has been assumed by counsel for both parties that these proceedings are regular and in accordance with the laws of the State of Minnesota.
    “(7) Plaintiff herein has not entered its appearance in said garnishment suits nor in any way acknowledged or submitted to the jurisdiction of the Minnesota courts.
    “ (8) The suit at bar was begun by summons issued June 16, 1914, and served on defendant June 17, 1914. Defendant appeared July 1st, and on September 24th filed a plea in abatement, setting up the garnishment proceedings in Minnesota, herein referred to, in abatement of the suit.

      “(9) Plaintiff’s action is brought as assignee of said Sheldon, and no other claim or debt is in controversy than the one hereinbefore stated. While the defendant does not expressly admit the good faith of the assignment, it does not question it in any way.”
   Kuhn, J.

(after stating the facts). The only question in the proceeding before us is whether the circuit court for Chippewa county acted properly in making the order to hold further proceedings in the suit there pending in abeyance during the pendency of the garnishment proceedings in the Hennepin county district court of Minnesota.

It appearing that the defendant had a permanent location both in the State of Michigan and in the State of Minnesota, it would seem that this would result in giving a sort of double situs to the debt. But it conclusively appears that the suit in the Minnesota court antedated the suit in this State; and therefore there cannot be any question that the Minnesota court thereby acquired jurisdiction.

By the garnishment service the Minnesota court also acquired a specific lien upon the debt, and its situs thus became fixed.

The relator being a claimant of the fund attached in the hands of the defendant railway company, as shown by its disclosure filed in the Minnesota court, and being notified in conformity with the statutes of Minnesota that its right to the fund was questioned, it became a party to the proceedings, in our opinion, to the same extent and with the same duty and responsibilities as Sheldon, its assignor and the principal defendant in the Minnesota suit. See Bragg v. Gaynor, 85 Wis. 468 (55 N. W. 919, 21 L. R. A. 161).

These foreign proceedings antedating the proceedings in this State, and having been properly called to the attention of the trial court in this State, and it being conceded that they are regular, in our opinion, the court acted properly in holding the present suit in abeyance, and thus preventing a collision in the jurisdiction of the courts of two sovereign States. Harvey v. Railway Co., 50 Minn. 405 (52 N. W. 905, 17 L. R. A. 84).

The case of Butler v. Wendell, 57 Mich. 62 (23 N. W. 460, 58 Am. Rep. 329), is an authority cited and relied upon by relator, but we think that the case is readily distinguishable from the situation now before us. In that case there was no disclosure of an assignment which was made for the benefit of creditors, and both suits were in the courts of this State, subject to final disposition in the Supreme Court of this State, and therefore no question of conflict of jurisdiction or comity between States could arise.

In a recent case in Iowa, Steltzer v. Railway Co., 156 Iowa, 1 (134 N. W. 573), a question quite similar to the one here involved was determined by the supreme court of that State. An employee of the railroad company, working for it in' Iowa, assigned his wages to the plaintiff. After the assignment, suit 'was started in Illinois against the employee, and the defendant was garnished in that State. The defendant disclosed the amount due, and set up the assignment to the plaintiff in its disclosure, and the plaintiff was notified of the proceedings in time to give him an opportunity to appear and defend; but he failed to appear or pay any attention to the proceedings, and judgment was rendered against the defendant for the fund. Subsequently, the plaintiff began suit in Iowa for the claim, being the assignee of the employee of the defendant. The court held:

“The court of Illinois had jurisdiction in the matter, and its judgment should be recognized, and the defendant as garnishee be protected by the courts of this State. Harris v. Balk, 198 U. S. 215 [25 Sup. Ct. 625, 3 Am. & Eng. Ann. Cas. 1084].”

We conclude that the writ of mandamus should be denied, with costs to the respondent.

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