text:
    PEOPLE v. KENT.
    1. Nuisances — Criminal Liability — Landlord and Tenant
    The owner of premises in possession of a tenant is not criminally liable under an ordinance prohibiting the maintenance of any nuisance on any premises, since a construction holding him liable would hold him liable for a condition which he would have no right to abate.
    2. Criminal Law — Joinder of Defendants.
    The conviction of tenants jointly with the owners of property of the offense of maintaining a nuisance thereon is not an error prejudicial to the tenants, though the owners should not have been convicted.
    3. Same — Partners—Individual Fines.
    Where partners are prosecuted jointly for maintaining a nuisance on partnership property, there is no error in imposing a fine upon each of the partners individually.
    Error to recorder’s court of Detroit; Connolly, J.
    Submitted October 9, 1907.
    (Docket No. 5.)
    Decided February 15, 1908.
    C. A. Kent, Bryant Walker, Mark Sloman, Milton Sloman, and Samuel A. Sloman were convicted of violating an ordinance, and each sentenced to pay a fine of $25. Affirmed as to defendants Sloman, and reversed as- to defendants Kent and Walker, and said defendants discharged.

      Walker & Spalding, for appellants Kent and Walker.

      Sloman & Sloman, for appellants Sloman.
    . Bernard F. Weadock ( Timothy E. Tarsney, of counsel ), for the people.
   McAlvay, J.

Defendants Kent and Walker, trustees of the Buhl estate and owners of the premises involved, and Mark Sloman, Milton Sloman, and Samuel A. Sloman, doing business as M. Sloman & Co., their tenants in possession, were prosecuted jointly before the recorder’s court of the city of Detroit for violation of a city ordinance. They were tried before the court without a jury, all found guilty and each fined the sum of $25.

The trustee owners and tenants have each come to this court on writs of error. The section of the ordinance under which the prosecution was had reads:

“ Section 5. No owner or occupant or other person, having the control or management of any grocery, * * * stable, barn, privy, sewer or other building or place, shall allow any nuisance to exist or remain on the premises of such owner or occupant or premises of which such other person has the control or management; nor shall any person, persons or corporation owning or occupying any public or private street, alley, way or any premises whatever, or having control of management thereof, within the limits of the city of Detroit, create or maintain any nuisance thereon.”

The complaint in the case made December 13, 1906, charges that on said date defendants, naming them, “being the owners and occupants respectively of said premises, did then ,and there unlawfully and wilfully allow a nuisance to exist and remain on said premises, said nuisance consisting of foul, nauseous and unhealthy odors emitted from stagnant pools of water or sewage underneath said building, which aforesaid odors are injurious to the public health, * * * and contrary to the provisions of the ordinances of said city” (citing the ordinance).

The tenants, Sloman & Co., went into possession of these premises October 1, 1906, under a written lease for a term of five years to be occupied for business purposes, with no covenants as to the condition of the premises or as to repairs, and continued in sole and exclusive possession and control at the time complaint in this suit was made.

It will not be necessary to state fully other facts in the case. An extract from the opinion of the court will indicate the theory upon which he held defendants jointly guilty. The court said:

“As a proposition of fact, this court is not prepared to say that this particular nuisance has been created by either the lessees or lessors alone. The dripping and overflow from the old faucet, and the seepage of the water therefrom into the ground, and the percolations of water into the ground before the Sloman tenancy, may be fairly considered to have contributed as much to the existence of this nuisance as the installation of the new sanitary conveniences by the defendants Sloman, the use of which was abandoned almost immediately after their installation, because the defendants Sloman found that the water backed up from the crock drain. * * * It is sufficient for this court to know that * * * the health of this community is seriously endangered by the joint act of all the defendants producing a condition for which in the contemplation of this ordinance all are i*esponsible.”

It will be observed that the dripping of the water from the faucet occurred before the Sloman tenancy, and that the trustees had no part in putting in closets which discharged under the building. The trustees insist that,, as a matter of law, under this complaint and the admitted facts, the court erred in holding them guilty.

The complaint charges “that they did allow a nuisance to exist and remain on said premises.” The ordinance states:

“No owner or occupant or other person having the control or management [of premises] shall allow any nuisance to exist or remain on the premises.”

A fair construction of this language is that it is directed to these classes of individuals, to wit, owners, occupants, or other persons, who at the time have the control or management of the premises and allow a nuisance to exist and remain thereon.

The construction contended for on the part of the people is that the amendment “ or other person having the control or management ” was added for the purpose of enlarging the scope of the ordinance to reach agents of nonresident owners, and that control or management is confined solely to that class, and that the prosecution in this ease is permissible against the owners and tenants jointly. Under the charge in the complaint we do not so hold, for the reason that such construction would hold the owner liable for a condition he would have no right to abate. The entire possession and control of these premises were in Sloman & Co., tenants. The owner, for such purpose, would have no more right to enter than a stranger. No ordinance can be held valid which commands a violation of law. City of St. Louis v. Kaime, 2 Mo. App. 66. The owner or any other person mentioned in this ordinance as amended who is not the occupant in possession and control of premises cannot be held guilty of allowing a nuisance * ‘ to exist and remain ” on such premises. The court was in error in this case in. adjudging the trustee owners guilty.

Sloman & Co., tenants in possession, complain that the court erred:

1. In finding them guilty as charged.

2. In finding them guilty jointly with the owners.

3. In imposing afine upon them severally.

The judgment of the court was supported by the undisputed facts as far as the tenants were concerned.

The conviction of the tenants jointly with the owners in this case was not an error prejudicial to them. It was not error for the court to impose a fine of $25 upon the tenants individually.

The judgment of the court below as to Sloman & Co. is affirmed in all respects, and as to C. A. Kent and Bryant Walker said judgment is vacated and set aside and they are discharged from further prosecution.

Grant, C. J., and Blair, Montgomery, and Carpenter, JJ., concurred.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    NOLAN v. GARRISON.
    1. Depositions — De Bene Esse — Condition op Cause — Statutes: —Construction—Chancery Causes.
    Section 10136, 3 Comp. Laws, providing for the taking of depositions de bene esse in any civil cause Or matter, begun or pending in any court of record, at law or in chancery, when the witness is or is about to go or resides out of the State, was not repealed as to chancery causes by section 10188 providing for the taking of testimony in chancery causes in open court and for the issuance of a commission on proper application; and a deposition taken under said section 10136 is admissible against the objection that it was taken before replication was filed.
    2. Statutes — Repeal—Implication.
    Repeals by implication are not favored.
    3. Same — Construction—Construing Together.
    Two statutes relating to the same subject-matter will be given, a construction which will give them both effect if possible, and the court will declare that one repeals the other only when their terms are so inconsistent that no other reasonable construction can be given.
    4. Trusts — Parol Trusts — Statute op Frauds — Suppioiency of Writings.
    On a bill to obtain a reconveyance of certain lands deeded to-defendant by complainant in trust, evidence examined, and held, that certain letters and contracts signed by defendant-sufficiently recognized complainant’s title and described the property sufficiently to satisfy the statute of frauds.
    5. Same.
    The statute does not require a form of words or designate the nature of the instrument which contains them, it being sufficient if the writing contains the substantial terms of the trust or sufficient to 'identify the subject-matter by writing.
    6. Equity — Rules — Pleading — Failure to Answer Allegations op Bill.
    Failure to answer a material allegation in a bill charging the execution of a deed requires that the allegation be taken as admitted as to all defendants competent to answer (Chancery-Rule No. lOd).

      7. Deeds — Execution—Evidence—Sufficiency.
    On the issue whether a quitclaim deed was executed by defendants as alleged, evidence examined, and held, sufficiently proved.
    8. Evidence — Admissibility—Books op Account.
    On a bill for an accounting, defendant’s book of accounts showing his receipts and disbursements relative to the property in question is properly admitted in evidence as an admission of indebtedness, though every item therein is not shown to relate to such matter, and the account begins with a balance brought forward from another book not produced.
    Appeal from Wayne; Mandell, J.
    Submitted October 10, 1907.
    (Docket No. 27.)
    Decided February 15, 1908.
    Bill by Frances A. Nolan against John W. Garrison, Mary Garrison, and Charles Thurman, guardian of said John W. Garrison, for the reconveyance of certain real estate, and for an accounting. From a decree for complainant, defendants appeal.
    Affirmed.

      Walker & Spalding, for complainant.

      Edward McNamara (H. Geer, of counsel), for defendants.
   McAlvay, J.

The complainant filed her bill of complaint in this case against her son, John W. Garrison, his wife, Mary Garrison, and Charles Thurman, guardian of John W. Garrison, to obtain a reconveyance of certain real estate from defendant John W. Garrison; an accounting for the proceeds of mortgages placed by him on that real estate; for rents and profits received by him from that and other real estate of complainant; for moneys he obtained by pledging certain bank stock belonging to complainant; and for general relief..

The real estate in controversy is all situated in the city of Detroit. A decree was granted complainant ordering a reconveyance as prayed, and there was found to be due her from defendant John W. Garrison upon said several accounts the sum of $23,611.11, which was decreed to be paid. From this decree defendants have appealed, and ask a reversal for several reasons. These reasons will be considered in the order of presentation by appellants, and during such consideration such facts as may be necessary, relative to the dispute between the parties and the property involved, will be stated.

Appellants contend that the first deposition of complainant should not have been admitted in evidence, (a) Because the cause was not at issue when it was taken. (b) That after it was at issue defendants demanded an examination of all witnesses in open court and therefore depositions could only be taken under a commission. These objections involve a construction of sections 10136 and 10188, 3 Comp. Laws.

The facts relative to taking the depositions in the case are as follows: Complainant and her husband, George M. Nolan, reside in Jacksonville, Florida. She was temporarily in Detroit at the time the bill of complaint in this cause was filed, October 12, 1905. The answer of defendants was filed October 30, 1905. On this date complainant gave notice under section 10136, 3 Comp. Laws, of taking her testimony by deposition on November 2d following. The deposition was taken according to notice, and the objections to taking it made at that time, and later when the cause was heard, were the same as those now urged before this court. Issue was joined on filing replication, and both parties gave notice of intention to claim the right to an examination of witnesses in open court.

The deposition objected to was taken under section 10136, the material part of which provides as follows:

“ The testimony of any witness may be taken by deposition de bene esse? in any civil cause or matter, begun or pending in any court of record, at law or in chancery, * * * or in any other civil proceeding, when the witness is or is about to go or resides out of the State of Michigan.”

Section 10188, upon which defendants rely, reads as follows:

"Either party to a cause in chancery shall have the right to an examination of all the witnesses in the case in open court as in a suit at law if within ten days after the cause is at issue he gives notice in writing to the opposite party of his intention to claim such right, in which case no examination of witnesses shall be had before a circuit court commissioner; but the cause shall be heard in its course on the calendar by examination of witnesses in open court, unless the court on cause shown otherwise direct, as in a suit at law: Provided, That such notice of hearing in open court shall not deprive the court, on application by either party, of the right to make an order directing a commission to take the depositions of witnesses outside of the jurisdiction of the court, or in case where a party may be deprived of material testimony or rights, if such a commission is not issued.”

These acts were approved on the same day. The one first quoted was ordered to take immediate effect. The other became operative 98 days later. Appellants argue that the first deals generally with the taking of testimony by deposition in all civil proceedings whether at law or in chancery; that the other act deals specially with the taking of depositions in suits in chancery; that there is a conflict between these two statutes and that in taking depositions in suits in chancery the second act controls under authorities cited. This contention assumes that a conflict in fact exists. This cannot be maintained either upon a comparison and fair construction of the two sections, or a study of their legislative history, unless we assume a legislative intent from such comparison and construction which the words do not necessarily imply. To hold that section 10188 repeals the provisions of section 10136 relative to taking depositions on notice in chancery causes we must find that in passing these two acts at the same time the legislature intended that section 10136, about which there appeared the greater urgency, being given immediate effect, was to continue to be the law for 98 days and then-be repealed by implication. Repeal by implication is not favored. The rule of construction which this court upon reason and authority should apply is that one which will give both statutes effect if possible and will declare that one repeals the other only when their terms are so inconsistent that no other reasonable construction can be given.

Section 10136 makes provision specifically for taking testimony de bene esse under certain conditions “in any civil cause begun or pending in any court of record, at law or in chancery; section 10188 provides for a right to examine all witnesses in a chancery cause in open court, as in a suit at law, in which case no examination of witnesses shall be had before a circuit court commissioner,—

Provided, That such notice of hearing in open court shall not deprive the court, on application by either party, of the right to make an order directing a commission to take the depositions of witnesses outside of the jurisdiction of the court, or in case where a party may be deprived of material testimony or rights, if such a commission is not issued.”

This provision does not exclude the one made by the other act. They are not inconsistent with each other, but both may be given effect, thereby giving the party both methods for procuring the testimony of a witness. This is the reasonable construction to give this legislation in view of the circumstances of its enactment above related and in view of the fact that the construction urged would deprive a party in many instances of testimony by reason of sickness, old age, residence or expected departure of material witnesses, should he be obliged to wait until ten days after issue joined before any step could be taken to secure such testimony. The deposition was properly admitted.

Defendants contend that the title to the property at the corner of Woodward and Baltimore avenues vested absolutely in defendant John W. Garrison on the execution and delivery of the deed to him by complainant in 1886, and the alleged verbal understanding between the parties that the deeds should uot be recorded and should be redelivered on demand and that she should remain the owner, was void under the statute of frauds.

To understand properly the questions raised by this contention, it is necessary to state the facts, and the transactions between complainant and her son, John W. Garrison, relative to this property. Her husband, John J. Garrison, died in 1876. Under his will complainant took. a life estate in property at the corner of Cass and Jefferson avenues, it renting at about $200 per month, with remainder in fee to others, including this son. She also received from this estate $10,000 money loaned by her to her husband at the time of their marriage and she had an estate in her own right. John W. took under his father’s will a life estate in real estate on Woodward avenue, with remainder over to his children. His life estate in this property and his remainder interest in the Jefferson avenue property he deeded to his mother in 1877 and 1880. In 1884 complainant married Maxwell M. Fisher. She was divorced from him in 1888. In 1885 she purchased the lots situated at the northeast corner of Woodward and Baltimore avenues, being the property the title to which is in controversy in this suit. In December, 1886, expecting trouble with Fisher, she deeded this property to John W. Garrison, as she claims, at his suggestion and under the verbal agreement referred to, that the deed was to be redelivered to her whenever she called for it and was not to be recorded until her death. He did not record the deeds of this property until August, 1895. In 1887 she built a block of five stores and a warehouse upon these lots at a cost to her of more than $20,000.

The proposition that in this case title to this property passed to John W. Garrison upon the delivery of the deeds and that the understanding is void under the statute of frauds is, we think, correct and well supported by our decisions provided the evidence of the agreement between the parties is entirely oral. Complainant, however, claims that the agreement between mother and son re-gar ding her continued ownership is evidenced by writings, and that it is therefore not within the statute of frauds.

Complainant left Detroit in 1889. She went to Europe that year and returned in 1890. She took up her residence in New Haven, Conn., where she lived until 1893, when she married her present husband, Mr. George M. Nolan, and since that time she has resided with him in Jacksonville, Florida. Since 1889 she has returned to Detroit but once for a brief time, besides the visit just before this suit was commenced. From 1889 until August, 1905, when he was declared incompetent, defendant John W. Garrison acted as agent for his mother in renting the property on Cass and Jefferson avenues, and this property at the corner of Woodward and Baltimore avenues, collecting the rents, paying taxes and insurance and attending to repairs. During this time and on February 16, 1887, he drew up for her signature and witnessed a contract for carpenter work, roofing and hardware to be performed and furnished in building the stores on these lots in question, describing her as owner, and which she signed as owner. On September 28, 1887, he wrote out another contract for like work upon the warehouse built upon this property, describing it, designating her as owner and he signed her name as such owner by him as her agent. The originals of these contracts are before us. Two other contracts of like import and character were produced in evidence. Tax lists for 1896 and 1901 are in evidence in his handwriting, signed by him describing this property and asking that the receipts be made in the name of Frances A. Nolan. On July 10, 1901, he wrote to his mother a letter covering nine pages of the record, relating his experiences in selling the property in which he had a life interest, being th e same property he had deeded to his mother, as he says, to protect himself, and which she afterwards reconveyed to him. This sale netted to him and the children the sum of $133,000, as appears from the record. In this letter he wrote:

“ Your property out Woodward avenue is you own and I watch it and am as careful with it as I can be, keeping the taxes and insurance all paid up on it, and well rented, trusting that it, with the Jefferson avenue store, may provide you a suitable income during your life, and by steady increase in valuation be . as big a boon to my declining years, or to my children, as father’s has been to me, only without the legal complication and expense attending the correcting of the title.”

Complainant had no other property on Woodward avenue than that in dispute. The two properties referred to above are those the son cared for and rented for his mother.

In the same letter he said further:

“ Your property is all right and you need have no fears. Mother, dear, my entire actions and doings are open for inspection and rigid inspection by any one and at any time that has authority to so investigate. * * * I have your tax list ready and in and am prepared to pay them as soon as I receive notice from the office of the amount due.”

The tax list for 1901 he refers to has been mentioned above.

In a letter written on April 16, 1905, to complainant, this defendant said:

“Was greatly surprised at the tone of your last letter. If you sell your Detroit property you should have learned by this time that the Judge [her husband] will be buying more tobacco plantations * * * or spend the money in other ways and you will eventually have nothing, and if you prefer to have a lawyer look after your property instead of me you will find that he will make heavy charges for doing same, and it will be the ruination of me and my business as every one who doesn’t know the real facts thinks I own the property myself.”

The complainant’s claim in this case, briefly stated, is, that although these lots were deeded to the son he held them for her and he was never the real owner. We are satisfied that these writings are sufficient to satisfy the statute of frauds and sustain complainant’s contention that the grantor continued to be the real owner of this property notwithstanding the deeds. They show that he held such title as trustee for her. It is not necessary or proper to go outside of these writings to establish this fact. In these letters of July 10, 1901, and April 16, 1905, is a sufficient description of the property and a recognition of the ownership in his mother, thus disclosing that there is a trust and what that trust is. He could have made it no more certain had he said:

“ You deeded me this property on Woodward'avenue, but it was not to be mine. It is your own. I have looked after it with great care for the purpose of assuring you an income during your life. It will ruin me and my business should you put this in another’s hands, as every one who dosen’t know the real facts thinks I own the property myself.”

The statute does not require a form of words or designate the nature of the instrument which contains them. It is sufficient if the writing contains the substantial terms of the trust or at least sufficient to identify the subject-matter by writing. Renz v. Stoll, 94 Mich. 377; 1 Perry on Trusts (4th Ed.), §§ 82, 83; Browne on Statute of Frauds (5th Ed.), § 108.

Defendants claim there was not sufficient evidence to establish the alleged quitclaim deed. This deed was a quitclaim of this property from defendant John W. Garrison and wife to complainant alleged by her to have been made and sent to her from Detroit in 1901, and which had upon it an indorsement of its record, and which deed she a short time later returned to her son at his request.

The bill of complaint set up all the facts relative to this quitclaim deed, and what complainant claimed for it. This was a material allegation of the bill, but was not answered by defendants. Defendant John W. Garrison, an incompetent person, answered by his guardian, and may therefore'not be concluded. His wife, a party to the quitclaim deed, however, can make no claim that this allegation cannot be taken as admitted by her. Chancery Rule 10, subd. d; J. E. Greilick Co. v. Rogers, 144 Mich., at p. 316.

Complainant’s testimony concerning this deed was taken without objection. It shows clearly why this deed was asked for and afterwards returned to John W. Garrison. The attention of counsel was not called at the time to the claim that the testimony was a conclusion of the witness. It appears from the several letters in evidence that up to the month in which a guardian was appointed for John W. Garrison, the most friendly relations existed between mother and son. He had kept her will for her until she sent for it, and then he twice requested that the new will be sent to him for safe keeping. The record shows that he asked the same thing in regard to this quitclaim deed. Complainant and her husband both testify that defendant Mary Garrison admitted that she executed this deed. She was not produced as a witness in the case. That she does not testify relative to this deed, the principal or only material fact in the case within her knowledge, is significant. The evidence was sufficient to establish the quitclaim deed, and the fact of its execution and delivery is strong proof of the truth of complainant’s contention relative to the transfer to him and an admission that he held as her trustee.

Defendants’ last contention is that the account book of John_ W. Garrison was improperly admitted in evidence, because it started with a balance brought forward and was only the continuation of an account; and because it was not shown that every item related to the property in controversy.

This account book was produced by defendant’s guardian, and was found by him in defendant’s desk. It starts with a debit and credit balance brought forward. The debit items are about 400 in number and all but one are items for rent received from this property in dispute and the Jefferson avenue property of complainant which this defendant had in charge, each item describing the street and number, which are admitted to be correct. They aggregate about $18,500, and cover these rents by the month from June 1, 1902, to September 1, 1905. The item not a rent charge is $1,250 received from an insurance company. The credit to himself of expense items for repairs on fire loss at about this time shows that a fire had damaged this property. The entries in the book are nearly all in the handwriting of this defendant. The credit items of this account are all of them for money and drafts paid to complainant, insurance, taxes, and items of repairs and water taxes. It does not appear against what property all of these items should be charged, but scattered about on every page of this side of the account when items are designated as- having Been expended on any particular property such property is the property from which the rents were received. The account on its face purports to be an Recount of receipts from and disbursements on account of these properties which belonged to his mother. The book was offered as evidence of admissions of indebtedness and was properly admitted as such. If the balance brought forward and the items which do not appear as charged on account of this property were stricken out the balance against this defendant would be increased several thousand dollars.

As to the accounting made by the court below, there was no evidence offered by defendants, and the proofs are abundant in its support. We are satisfied that defendant John W. Garrison betrayed his mother’s confidence and deceived her in many ways. He recorded the deeds to this property and mortgaged it without her knowledge or consent and after he had told her they were destroyed. He also borrowed money on her bank stock and purposely kept these facts from her knowledge. She first knew that these deeds were recorded and her property mortgaged and pledged shortly before this suit was brought. The cordial relations between mother and son continued until the month in which his guardian was appointed. There is no force in the claim that complainant has rested until her son is under guardianship as an incompetent person, and has begun suit when he is at such disadvantage. She began her suit promptly on the discovery of the state of facts here divulged, and by abundant proof has satisfied us that she is entitled to the relief she asks, and which the court below granted.

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

Grant, C. J., and Blair, Montgomery, and Carpenter, JJ., concurred.


author: Ostrander, J.

text:
    INTERNATIONAL TEXTBOOK CO. v. SCHULTE.

    1. Contracts — Breach—Damages Recoverable.
    In an action for a breach of.a contract to pay a certain sum for a certificate of scholarship in plaintiff’s school, plaintiff is not entitled to recover more than nominal damages in the absence of proof of the cost of furnishing the instruction contemplated, defendant having refused to receive it.
    2. Justices op the Peace — Certiorari—Reversal—ProprietyNominal Damages.
    A judgment for defendant in justice’s court is properly affirmed on certiorari where plaintiff only showed a right to recover nominal damages and the affidavit for certiorari does not assign error upon the refusal of the justice to render judgment for nominal damages.
    Error to Wayne; Rohnert, J.
    Submitted October 17, 1907.
    (Docket No. 81.)
    Decided February 15, 1908.
    Assumpsit in justice’s court by the International Textbook Company against W. H. Schulte for breach of a contract for correspondence instruction. There was judgment for defendant, and plaintiff appealed to the circuit court by writ of certiorari. There was judgment affirming the judgment of the.justice, and plaintiff brings error.
    Affirmed.

      Thomas 8. Parker {David - C. Harrington, of counsel), for appellant.

      Choate & Webster, for appellee.

       Rehearing denied March 17, 1908.

   Ostrander, J.

Plaintiff is a Pennsylvania corporation and is the proprietor of what are called International Correspondence Schools. It brought suit in assumpsit in justice’s court against defendant who had made with it a. contract in writing upon which, it is claimed, he was in default. The judgment rendered by the justice in favor of defendant was reviewed in the circuit court on certiorari and, being affirmed, the proceeding is brought into this court by writ of error. At the trial in justice’s court, the testimony introduced was taken down by a stenographer and a transcript thereof, made a part of the return of the justice, was filed.in the circuit court. The contract of the parties is much too long to be set out in this opinion. It is, in its form, a request, or offer, and an acceptance thereof, amounting, in effect, to an agreement by plaintiff to furnish a course of correspondence instruction in the subjects embraced in bookkeeping and business forms scholarship, provided the course was completed in five years, for which defendant agreed to pay $52, $5 down and $5 monthly thereafter until the price was paid in full. When the agreed price had been paid, defendant was to receive a nonforfeitable certificate of scholarship for said course in said schools. A clause in the contract reads:

“ That you shall have the right to terminate this contract for any breach thereof on my part without returning any money paid on account of same.”

The date of the contract and of first payment is May 20, 1905. Later, in July, 1905, defendant paid $3 on the contract and he has paid no more. It is the theory of the plaintiff that it is entitled to recover the sum of $44, the remainder of the contract price. Defendant was a witness in his own behalf and gave testimony tending to prove that he worked out four of the five lessons sent to him and had them corrected and returned to him. He did not work out the fifth paper because he thought he was deriving no benefit from the instructions. He also was furnished certain bound volumes, and these he returned to the local representative whom he told, when he came to make a collection on the contract, that .he wished to go no further. He says he supposed that upon getting a receipt for the books the whole matter was concluded. There is no evidence of any breach of the contract by the plaintiff or of any waiver of defendant’s undertaking to perform. There was due upon the contract, according to its terms, when suit was begun, February 1, 1906, $87. No testimony was produced to show what it would cost plaintiff to perform the contract. For this reason, the circuit judge was of opinion that there was no evidence from which the damages of plaintiff could be determined, and upon this point he decided the case. It would be presumed that plaintiff would be put to some expense in performing the contract. The testimony also furnishes evidence upon the subject. An office is maintained in Detroit, a collector .is employed, payment of postage is provided for in the contract, lesson papers are furnished, and, when sent to Scranton, Pennsylvania, are corrected and returned. This implies, at least, one or more instructors and examiners. Defendant having repudiated and refused to receive whatever was to be furnished to him, plaintiff is relieved from some of this expense. The facts are especially within its knowledge. It did not supply the evidence necessary to thABxiñg of its damages. Its affidavit for the writ, of' certiorari' does~rrct"assign error upon the refusal of the justice to render a judgment for nominal damages and the point is not made in argument in this court. A great many questions are raised by the assigned errors and some of them are elaborately argued in the brief. We are not called upon to consider them. In no event could plaintiff recover, upon this record, more than nominal damages. The court below did not err in refusing to reverse the judgment of the justice’s court.

The judgment of the circuit court is affirmed.

Hooker, Moore, Carpenter, and McAlvay, JJ., concurred.


author: Hooker, J. Ostrander, J.

text:
    NASH v. KENYON.
    Drains — Commissioners—-Personal Liability — Purchasers op Drain Orders.
    The purchasers of drain orders issued against a drain for which the board of supervisors refuse without just cause to spread the tax, cannot maintain an action for damages against the drain commissioner issuing the orders on the ground that his misbehavior in office causes the refusal of the board.
    Error to Ionia; Davis, J.
    Submitted October 14, 1907.
    (Docket No. 40.)
    Decided February 15, 1908.
    Case by Edwin Nash and Ernest Nash, copartners as Edwin Nash & Son, against Marvin E. Kenyon for damages caused by the illegality of certain drain proceedings. There was an order sustaining a demurrer to the declaration, and plaintiffs bring error.
    Affirmed.

      B. A. & W. E. Hawley, for appellants.

      John Nichol, for appellee.
   Hooker, J.

The plaintiffs have appealed from a judgment for the defendant upon demurrer to the declaration. The following statement shows plaintiffs’ claim as set forth in their declaration.

One Elisha Strong was acting county drain commissioner of Ionia county, in September, 1901, and on or about September 12, 1901, there was filed with him a petition for cleaning out an existing township drain, known as the Campbell Creek Drain,” signed by the number and class of persons required by law. Strong made an examination and inspection of the lands traversed by and to be benefited by the cleaning out of the drain, and determined that the same would be for the public benefit, etc., caused a survey and measurement of the Campbell Creek Drain to be made by a competent surveyor, and determined and ordered that said drain be straightened and constructed on a different line than originally constructed at the lower end across a parcel of land known as the Loomis lot. Subsequently the defendant succeeded Elisha Strong as drain commissioner of said county, his term beginning on January 1, 1902, and ending on January 1, 1904. On or about September 15, 1902, the defendant made an order (known as the final order of determination ) wherein and whereby he ordered and determined that said drain should be cleaned out in accordance with a diagram incorporated in said order, and should also be straightened at the lower end thereof across said Loomis lot as also provided in Strong’s order of determination, but without having acquired any right of way across said lot, and also described, fixed, and determined a special assessment district for the purpose of said drain, and described the parcels of lands constituting it. On the same day he made and issued his notice of letting drain contracts in the matter of said drain, wherein and whereby he gave notice that he would proceed to receive bids for the cleaning out of said drain at the residence of one Trowbridge, in the proper township, on October 8, 1902, at nine o’clock a. m., and at such time and place the assessment for benefits and the lands included in said assessment district would be subject to review,, and owners and persons interested in said lands were cited to appear and be heard in relation thereto; but no mention was made or notice given of receiving bids for straightening said drain. On September 25, 1902, defendant made an affidavit of service of notice of letting drain contract and. assessment of benefits, showing that on September 16th he served said notice of letting contract upon various named interested parties by leaving copies with divers other parties, but said affidavit did not state that said notice was served on any of the persons named by leaving a copy at his or her residence with some person of suitable age and discretion who was informed of its contents, or that any search was made to find the person entitled to service of such notice before making substituted service by copy, though all such persons were residents of said township, or that any of said persons had ever been personally served with any notice of said drain letting or review.

After making said final order defendant divided the route into convenient sections for letting, and marked the grade upon grade stakes along the entire route of said drain, including the changed line across said Loomis lot. On October 3d, at the place designated, defendant received bids for the “ construction ” of said sections of said drain, including the changed route, which was made a section by itself, and let a job applicable to said last-mentioned section to one Swan Johnson for $266.40, who then and there entered into a contract to construct the same along said changed line, defendant at the same time agreeing with said Johnson that he only required him to clear out said old drain, which he subsequently did, defendant not having acquired any right of way for the proposed new route; the cost and expense of the work done by Johnson should have been much less than said sum of $266.40, but defendant accepted such work as a full and complete performance of said contract. Several other sections were let and contracted for with divers persons named, but they were not performed, no extension of time has been granted by defendant or his successor, nor has any of them been declared forfeited by them or relet. On or about October 14, 1902, defendant filed his computation of the cost of said drain at the amount of $2,060, and apportioned the same, and on October 13th he made and issued his drain special assessment rolls.

The declaration alleges that it was the duty of defendant, after the delivery to him of the petition for said drain, to act in a careful, proper, and diligent manner in the premises and without fraud or negligence in making the several orders of determination, issuing, publishing, and serving the various notices required by law, acquiring the necessary rights of way for said drain, letting contracts for construction and requiring prompt performance of the same, and forfeiting contracts not seasonably performed, but that not regarding his duty, and contriving and intending to injure and aggrieve such persons as might or should perform labor and services in digging, constructing, laying out, and establishing said drain, or such persons as might or should advance moneys therefor, or should purchase drain orders issued by him, did not and would not so act in the various respects mentioned, but negligently and wrongfully performed the various acts stated in the manner hereinbefore stated; that on or about October 4, 1902, defendant issued drain orders upon the treasurer of Ionia county, to various persons, for small sums aggregating $23, for labor in making a survey and for printing, notices of letting and for the use of a team in said survey, which said orders were sold and assigned to plaintiff for a valuable consideration on or about said October 4th.

At the October, 1903, session of the board of supervisors, a certified statement of the several amounts assessed for the construction of said drain was presented to said board for their action, and said board, by reason of said wrongful and unlawful omissions and neglect of said defendant, refused and have since refused, to order said tax or any part thereof spread upon the rolls, and damage is claimed by reason of the premises.

The grounds of demurrer stated are:

1. That the declaration does not state that the plaintiffs relied upon the legality of the proceedings in their purchase of the orders.

2. That the declaration does not allege that defendant owed any duty to the plaintiffs in the premises.

3. That it was of no concern to the plaintiffs whether the proceedings were in strict accordance with law or not.

4. The declaration does not state whether or not the board of supervisors would have ordered the spreading of the tax, had all of the proceedings been in strict accordance with the statute.

5. That the declaration shows that if plaintiffs have suffered any injury it was caused by the action of the board of supervisors.

6. That the declaration does not charge any contract relations between plaintiffs and defendants, and is informal and insufficient in law.

From the declaration, we deduce the following state of facts:

1. A lawful petition was filed with defendant’s predecessor for the cleaning out of an existing drain.

2. The first order of determination may reasonably be construed as complying with the prayer to clean out the drain and to straighten it across Loomis’ land.

3. The final order was an order to clean out the drain, supplemented by a determination that the drain be straightened across Loomis’' land as determined by the first order.

4. The letting was advertised merely as a cleaning out of the drain, bids were taken upon this basis, and section 1 of the drain (which was the one included in the proposed straightening) was let to Swan Johnson for $266.40. The contract was to construct the drain according to the survey which showed the line as straightened.

5. The right of way across Loomis’ land not having been acquired, no attempt to straighten the drain was made, and Johnson having cleaned out the old drain, the defendant accepted this as a compliance with the contract, though it was worth less than to have straightened the drain.

6. No other contract has been performed, yet the defendant did not declare said contracts forfeited or take steps to relet the same during the time that he remained drain commissioner.

7. The board of supervisors has refused to spread the tax.

8. The plaintiff owns by assignment orders amounting to a few dollars, issued to persons for services in the preliminary survey, apparently.

9. It does not appear that he has made any effort to collect them from any one.

Apparently the only cause of complaint is that Swan Johnson’s contract to clean out the drain according to survey was in effect an agreement to construct a new drain across the Loomis lot, which the parties to it had not a right to make, or Johnson to perform, and which he did not perform, and while he did perform the job of clearing out the old drain, defendant’s consent or contract to permit this and accept the same as a compliance was a fraud upon other bidders and persons assessed, who are not complaining of it, because it was not worth as much as the work contracted for, and invalidated the proceedings, which made it proper for the board of supervisors to refuse to spread the tax.

We are able to say that the drain commissioner acquired jurisdiction to clean this drain, that no landowner whose land was to be taken (if there were such) and no landowner assessed for benefits is shown to have questioned the proceedings in any way. The only reason indicated, for the refusal of the board to authorize the spreading of the tax, is the claim that an excessive price for Johnson’s work is included in the computation, unless it be defendant’s omission to declare other contracts void and relet the jobs, which, of itself, would not justify a refusal to order the spreading of the tax.

It does not appear that Johnson has been paid, or that if he had it would be any reason for a refusal of the board to order the tax to be spread. Counsel for plaintiff rely upon the case of Kenyon v. Board of Sup’rs of Ionia Co., 138 Mich. 544. There the record showed that the board refused to order the tax to be spread because of proceedings “fatally defective,” which did notvoccur until more than ten days had elapsed after the final order of determination, and that there was no other remedy against an illegal assessment. A mandamus was refused, inasmuch as no work had been commenced to construct the drain. So far as the percentage of benefits is concerned, every person subject to assessment in this case was concluded by the proceedings, no appeal having been taken. Moreover, the work has been commenced, and furthermore there is no indication that any one having the right to do so has questioned the validity of the computation or assessment as made or requested the board not to order the spreading of the tax, which the defendant caused to be computed and spread over the district in his special roll and had the board ordered the same to be spread, no person owning lands assessed could successfully question his assessment upon the facts shown by this record, and if he could, the only relief that he could obtain, would be a reduction of the computation, because of the inclusion of some unknown fraction of $266.40, improperly included in the computation of the amount to be raised.

This new computation would necessarily result in but an infinitesimal reduction upon each person questioning it, and none upon others, and the defendant would not be affected by it, both because a corresponding or greater reduction should then be made in the amount to be paid Johnson, and because presumably the sum of 10 per cent, provided by the statute might be sufficient to cover any deficiency.

At the time this defendant surrendered his office to his successor, January 1, 1904, there was a valid proceeding to clean out the drain, a valid assessment of percentages of benefits, and a computation which at the most was slightly excessive, but of which no one, certainly no interested party, is shown to have complained. The supervisors at the preceding October session had refused to authorize the spreading of the tax — apparently without just cause. The commissioner was not responsible for this, and has since January 1, 1904, had no authority in the premises. We are of the opinion that the declaration does not state a cause of action. It is unnecessary to discuss other questions.

The judgment is affirmed.

Moobe, Carpenter, and McAlvay, JJ., concurred, j

Ostrander, J.

I concur in affirming the judgment, hut upon the ground that it does not appear from the declaration that the alleged misbehavior of the drain commissioner in any way concerned the plaintiffs. 23 Am. & Eng. Enc. Law (2d Ed.), p. 379 (q); Cooley on Torts (1st Ed.), p. 379; Moss v. Cummings, 44 Mich. 359.