text:
    HAGGERTY v. BALDWIN.
    Banks — Checks—Presentation eor Payment — Time.
    Plaintiffs received defendant’s check on a bank in a neighboring city by mail on Friday. Saturday they deposited it in their bank in such city. Monday morning such bank presented the check at the bank on which it was drawn .for payment, which was refused, though the bank was still open and doing business. That afternoon the bank closed, and did not resume business. In an action to recover on the check, the court directed a verdict for plaintiffs. Held, not error.
    Error to Wayne; Carpenter, J.
    Submitted April 10, 1902.
    (Docket No. 66.)
    Decided June 24, 1902.

      Assumpsit by Lorenzo D. Haggerty and John S. Haggerty, copartners as Haggerty & Son, against Stephen Baldwin, to recover the amount of a check. From a judgment for plaintiffs on verdict directed by the court, defendant brings error.
    Affirmed.

      Hayes & Lawson, for appellant.

      Lehmann Bros. & F. J. Biggs, for appellees.
   Moore, J.

This case was tried by a jury. At the conclusion of all the testimony the counsel for defendant requested the judge to direct a verdict for defendant. A like request was made on the part of the plaintiffs. The judge stated he thought a verdict ought to be directed in favor of one party or the other. Counsel then agreed the judge might take the case under advisement, and, after reachinga conclusion, might direct a verdict as if the jury were present. A verdict was directed in favor of plaintiffs. The defendant has brought the case here by writ of error.

The defendant lives in the city of Detroit. The plaintiffs live and do business in the township of Springwells, 2& miles west of the city limits of Detroit, though one of the plaintiffs has a home in the city of Detroit, where he spends part of his time; but h6 claims a residence and votes in Springwells, and the business of the firm is done in the township of Springwells. The defendant was indebted to the plaintiffs, and on the 5th of September, 1900, he sent them, through the mails, a check on the bank of A. Ives & Son, bankers doing buisness in the city of Detroit, for $139.25. Mr. Baldwin had done business with this bank for a good many years. He had in the bank September 5th, $1,623:85. He deposited $100, and gave checks that day for $913.85, $1,0Q0, and $139.25. The record discloses the plaintiffs received the check during the forenoon of September 7th. They were not customers of A. Ives & Son, but did their banking with the Home Savings Bank, whose place of business is in the city of Detroit. The check was deposited with the last-named bank by one of the members of the firm in the forenoon of September 8th, which was Saturday. The banking hours on Saturday are from 9 a. m. to 12:30 p. m., and from 6 p. m. to 8 p. m. No collections are made between 6 p. m. and 8 p. m. The clearing house meets at 10 o’clock on Saturdays, and checks deposited at 10 o’clock or after would wait the meeting of the clearing house on Monday before being presented. This check did not go through the clearing house, and at this time the Ives Bank was not a member of the clearing house. A messenger from the Home Savings Bank took this check, with others, and presented it to the paying teller of the Ives Bank Monday morning at about a quarter past 9 o’clock. It was not paid, but was handed back to the messenger with the statement by the cashier that he would arrange it with the Home Savings Bank. The Ives Bank at this time was open and doing business. The Home Savings Bank again sent the check to the Ives Bank at half past 2 o’clock on the same afternoon, when the bank was closed, and never again resumed business. On the following day the cashier of the Home Savings Bank sent the check to the office of Mr. Baldwin. The messenger informed Mr. Baldwin the check was dishonored, and asked him for another one.

Mr. Butler Ives was sworn as a witness for Mr. Baldwin, and testified that between the 5th of September and the time of the failure of the bank Mr. Baldwin saw him and said—

That he had drawn a few checks that would overdraw him a little. There was one check, he said, he had sent to Chicago, and it might come in before he could get the money in; and he asked me if we would take care of them, and I told him we would.”

On cross-examination he testified:

*' Q. Had you not for some days prior to the 10th refused to pay checks ?
“A. No, sir; not for some days, — for a day or two.
Q. A day or two before the 10th ?
“A. No, sir; we paid checks on Saturday, and some on Monday. * * *
Q. Did you pay all checks on Saturday ?
“A. We paid all the checks excepting a few clearinghouse checks.
Q. Well, you did not pay them all on Saturday ?
“A. No, sir. ' I don’t remember the day I had the conversation with Mr. Baldwin with reference to the checks.
The Court: What was the distinction between clearing-house checks and other checks ?
“A. We call ‘clearing-house checks’ the checks that come from the banks. ** * *
The Court: What arrangement was made Saturday respecting the checks that came to you through the clearing house ?
“A. There was not any arrangements made. We were trying to make arrangements by Monday to go through the clearing house, — to have them taken care of; but there was so many came in we could not do it.”

The situation, then, is that plaintiffs received the check through the mails on Friday. The following day they sent it by a member of the firm to their bank, which caused it to be presented early in the first secular day thereafter, when payment was refused, though the bank upon which the check was drawn was still open and doing business.

In Freiberg v. Cody, 55 Mich. 108 (20 N. W. 813), it is said:

“ In cases where the parties to a check' are doing business in the same city where the bank is located, the time within which the holder should present the instrument for payment seems to be very well settled; but, in a case like the present, the presentation must be made within a reasonable time, taking all the circumstances in considertion, and when no more time is taken than is fairly required in the usual and ordinary course of business, special inconvenience and special circumstances considered, the holder, in case of failure of the bank upon which the check is drawn, before presentation, should not be held to suffer the loss. Phoenix Ins. Co. v. Allen, 11 Mich. 501 (83 Am. Dec. 756); Nutting v. Burked, 48 Mich. 241 (12 N. W. 184).”

In Holmes v. Roe, 62 Mich. 199 (28 N. W. 864, 4 Am. St. Rep. 844), it is said:

“The law is well settled that if the person who receives the check, and the banker on whom it is drawn, are in the same place, the check must, in the absence of special circumstances, be presented the same day, or at latest the day after, it is received. Simpson v. Insurance Co., 44 Cal. 139, Cawein v. Browinski, 6 Bush, 457 (99 Am. Dec. 684); Schoolfield v. Moon, 9 Heisk. 171; Alexander v. Burchfield, 7 Man. & G. (49 E. C. L ) 1061, Boddington v. Schlencker, 4 Barn. & Adol. 752, Moule v. Brown, 4 Bing. N. C. 268. If, however, the person who receives the check, and the banker on whom it is drawn, are in different places, in the absence of special circumstances the check must be forwarded for presentment on the day after it is received, at the latest; and the agent to yhom it is forwarded must, in like manner, present it, at the latest, on the day after he receives it. Hare v. Henty, 30 Law J. C. P. 302; Prideaux v. Criddle, L. R. 4 Q. B. 455; Griffin v. Kemp, 46 Ind. 176; Woodruff v. Plant, 41 Conn. 344; Burkhalter v. Bank, 42 N. Y. 538; Bond v. Warden, 1 Colly. 583; Firth v. Brooks, 4 Law T. (N. S.) 467.
“Presentment within the time above stated is only necessary to charge the drawer when the banker has become insolvent or failed between the time when the check was received and the time it should have been presented.
“The rule of diligence does not require the presentment to be made at any particular period within the time limited by the law as a reasonable time. Consequently the payee or holder of the check does not lose his right to recover by the stoppage of the bank within the prescribed period, provided the check is presented, though subsequent to the stoppage, within the period. Grant, Banks, 57.”

See, also, Hamilton v. Lumber Co., 95 Mich. 436 (54 N. W. 903); Lloyd v. Osborne, 92 Wis. 93 (65 N. W. 859); 5 Am. & Eng. Enc. Law (2d Ed.), pp. 1041, 1042, and notes.

We think the judge did not err in directing a verdict in favor of the plaintiffs.

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


source: Caselaw Access Project

author: Hooker, C. J.

license: Public Domain

text:
    BARNEY v. TONTINE SURETY CO.
    1. Contracts — Gambling.
    A contract whereby a company, in consideration of the payment of $80 in weekly installments of $1.25 each, agrees to deliver to a person a diamond, and then to buy it back, if he does not desire it, for $120, all payments made to be forfeited for a failure to make any of them, is not a gambling contract.

    2. Same — Usury.
    The contract, however, being made by h company whose business consists of making such contracts, is usurious, as a promise to repay money with an advance of 50 per cent, thereon, and the person’s remedy, as against the original company, is limited to a recovery of the payments made.
    3. Same — Rights of Assignee.
    But the defense of usury is a personal one, and cannot be interposed by an assignee of the company.
    Error to Wayne; Donovan, J.
    Submitted April 10, 1902.
    (Docket No. 53.)
    Decided June 24, 1902.

      Assumpsit by Daniel D. Barney against the Tontine Surety Company of New Jersey on certain tontine diamond contracts. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Fink & O'Connor, for appellant.

      John J. Speed, for appellee.

      See Rehberg v. Tontine Surety Co., ante, 135.

   Hooker, C. J.

The plaintiff was a'party to four contracts with an alleged concern calling itself the Tontine Surety Company, all substantially alike, of one of which the following is a copy:

‘ ‘ Incorporated under the Laws of the State of Michigan.
“ Series 21. Numbers 15, 16, 17, and 18.
“The Tontine Surety Company.
“Home Office, Whitney Opera House Block,
“Detroit, Mich.
“Capital Stock, $50,000.00.
“ Diamond Investment Contract'.
“ This Contract is One of a Series of Contracts of Like Tenor, Numbered from 1 to 100.
“Knowall men by these presents that in consideration of D. D. Barney, of Flint, Michigan, the holder hereof, well and truly making each and all of the payments herein provided for, to be made by him at the time and in the manner herein specified,- — -time, manner, and amount of payment being of the essence hereof, — the Tontine Surety Company of Detroit, Michigan, will purchase from its redemption fund, sell and deliver to him, or to his legal representatives and assigns, a commercial white, clear, and perfect diamond, of the weight of one and one-half carats; the same to be delivered upon surrender of this contract within three months after making the 63d payment hereon.
“ In case the holder hereof does not desire his one and one-half carat diamond after the same is delivered to him, the Tontine Surety Company agrees to buy it back at the time of delivery for $120.00 in cash.
“The Tontine Surety Company is hereinafter designated as the ‘ Company,’ and the person to whom this contract is issued is hereinafter designated as the ‘Holder.’
“ The holder hereof hereby promises and agrees to pay the company, at its home office in the city of Detroit, as and for the consideration hereof, the full sum of $80.00, in the following manner, to wit: $1.25 on delivery hereof, the receipt of which is hereby acknowledged, and $1.25 on or before the last day of each calendar week following the date hereof, for sixty-three consecutive weeks thereafter. If he shall fail to pay any of said installments within the week in which it is payable, the said delinquent installment, together with the additional sum of $1, may be paid at any time before the end of the next succeeding calendar week. But if he shall fail or neglect to pay any of said weekly installments at the time and in the manner herein provided, and shall continue in such default for more than one week, then and in that case this contract shall, because of said default, become and be wholly null and void, and all payments made thereon shall be forfeited, and said sums so paid shall be retained by the company as agreed liquidated damages for the nonperformance thereof by the holder. The holder shall, within three months after making his 63d payment hereon, present this contract to the company’s office for redemption; and, in case of failure so to do,- then said contract holder waives all rights under this contract, and the same becomes null and void.
“The company shall employ $1.00 out of each weekly installment after the fourth payment paid on this and similar contracts in the purchase and delivery of a diamond required for the fulfillment of these contracts, and said $1.00 and all fines and transfer fees shall be kept in what is known as the ‘ Redemption Fund ’ of said company.
“In case of the death of the holder hereof during the time this contract is in force, the company agrees to return to the holder’s legal representatives, upon the surrender of this contract, receipted by the proper person or persons, within six months from the date of the holder’s death, the amount of money that the holder hereof has actually paid to the company on this contract.
“This contract is transferable, but no transfer will be recognized by the company unless first registered with the company, for which a registration fee of $5.00 will be charged. This contract is issued pursuant to a printed application signed by said holder, the conditions of which are a part hereof.
“In witness whereof, the Tontine Surety Company has caused this contract to Ido signed by its president and secretary, and its corporate seal to be hereto attached, this 15th day of September, 1899.
[Seal.]
“R. J. Farmer, President,
“ M. Shelley, Secretary.
“No agent or solicitor has any authority to collect weekly dues on contracts unless authorized in writing by the secretary, under the seal of this company. All rights reserved.”

As will be noticed, this undertaking is not signed by the plaintiff; but it was issued by the company in consideration of the payments therein provided for, all of which were duly and seasonably made. It is claimed by the plaintiff that subsequently the company’s assets were sold to the defendant, a New Jersey corporation, which assumed its obligations upon these contracts. The plaintiff claims performance by himself, and seeks a recovery upon the contracts for $480 and interest. The learned circuit judge held these to be gambling contracts, upon which no recovery could be had in this action, — relief, if any, being in equity, — and directed a verdict for the defendant, from which the plaintiff has appealed.

The only question that needs consideration is whether this was an illegal contract, upon which the plaintiff was not entitled to a verdict. Upon its face, this contract, at the most, requires, in substance, that, upon payment according to its terms, the tontine company shall pay to the other party an amount equaling the aggregate of the payments, and 50 per cent, thereof additional. The agreement to sell and deliver a diamond of a given description upon the completion of such payments is not an unlawful contract in itself. It is like any other sale of property. It only becomes illegal, if at all, through the agreement to repurchase the diamond at an advanced price. We should refuse to take notice of what society knows did wé not say that this was nothing more than an evasion, and that the real contract was a usurious one. It cannot be said to be a gambling contract, for there is no element of uncertainty in it. The payment is not made dependent upon the happening of any event, except performance by the other contracting party, and in this respect it is like any other executory contract having a forfeiture clause. Prominence is given to the fact that such contracts would be ruinous to the tontine company, and that the only way that it could hope to make such a business profitable would be through forfeitures, and that evidently the parties must have so understood it. If it be admitted that this is so, the fact remains that the contract of the tontine company is an unqualified promise to pay, in no way dependent upon lapses or forfeitures of third parties.

But we have no hesitation in declaring the contract usurious, because it is an unqualified promise to repay money with interest at upwards of 50 per cent, for the average period covered by payments. The question is not affected by the fact that the contract does not purport to create a loan, for it does that in effect. It is in effect, and at the option of the patrons of the company, a promise by the company to pay money for the use of money. We do not mean to be understood as saying that a valid contract might not be made for the sale of a chattel for a fixed price, with an obligation to repurchase at an advanced price at the option of the vendee, or that, in every such case where such repurchase price should exceed the original purchase price, it would be usurious; but in a case like the present, where the business of a concern consists in making such contracts, we can come to no other conclusion than that the only object of the contract was a usurious promise to repay money, with an advance of 50 per cent, upon it.

It is manifest that this business can be nothing but a fraud, for it is inconceivable that it could be honestly and profitably conducted by its projectors for any great length of time, and it is perhaps doubtful if those engaged in it might not be liable to prosecution as common cheats. But if this be true it would not entitle the plaintiff in this case to enforce his contract against the original party to it for more than the principal, as provided by statute; for he has voluntarily yielded to his cupidity, and become a party to a usurious contract, forbidden by law. But the defendant in this case cannot set up the defense of usury, which is a defense personal to the party who makes the contract, and not to an assignee. Spaulding v. Davis, 51 Vt. 79; Low v. Mussey’s Estate, 36 Vt. 183; Lamoille County Nat. Bank v. Bingham, 50 Vt. 105 (28 Am. Rep. 490); Reed v. Eastman, 50 Vt. 67; Ready v. Huebner, 46 Wis. 692 (1 N. W. 344, 32 Am. Rep. 749); Nance v. Gregory, 6 Lea, 343 (40 Am. Rep. 41); Farmers’ & Mechanics’ Bank v. Kimmel, 3 Mich. 84; De Wolf v. Johnson, 10 Wheat. 367; Sellers v. Botsford, 11 Mich. 59; Vary v. Norton, 6 Fed. 813.

The judgment is reversed, and a new trial ordered.

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


text:
    SCHMID v. VILLAGE OF FRANKFORT.
    1. Municipal Corporations — Bonds—Authority to Execute.
    A contention that a resolution of a village council authorizing, in general terms, the execution of bonds, did not cover the bonds in controversy, is untenable, where it appears that no other bonds had been authorized by the electors, and all parties proceeded upon the theory that those were the bonds referred to.
    2. Same — Delivery—Escrow—Evidence.
    Upon an issue whether certain village bonds, placed with a bank “in escrow,” and intended for delivery to a certain person on performance of a stated condition, were deposited for safe-keeping merely, or were to be delivered by the bank when the condition should be performed, evidence that the village council was afterwards advised by the bank that the bonds had been delivered, and made no protest, was admissible.
    3. Same.
    Upon a consideration of all the evidence, held, that the bank was authorized to deliver the bonds on. performance of the condition.
    4. Same — Bona Fide Purchasers.
    Where municipal bonds are deposited in escrow, to be delivered on performance of a certain condition, a delivery by the depositary may be effectual as to a bona fide purchaser, though the condition has not been performed.
    5. Same — Notice.
    One who purchases municipal bonds in reliance on recitals therein showing them to have been issued for a lawful purpose will be protected, though an examination of the records of the municipality would have shown the purpose to be unlawful.
    Error to Benzie; Chittenden, J.
    Submitted April 10, 1902.
    (Docket No. 71.)
    Decided June 24, 1902.

      Assumpsit by Frederick Schmid, surviving partner of the firm of Mack & Schmid, against the village of Frankfort, upon municipal bonds. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      B. M. Thompson, for appellant.

      D. G. F. Warner and Thomas Smurthwaite, for appellee.
   Hooker, C. J.

The plaintiffs brought an action for interest due upon municipal bonds. The defense was: (1) That the bonds had never been delivered by the municipality; and (2) that the plaintiffs were not bona fide purchasers. The case was tried by a jury, and the court directed a verdict for the defendant.

It is admitted that the bonds were illegal and void, because they were delivered to one Seeley in pursuance of a contract to aid a private enterprise, if they were delivered at all. At the same time they were valid upon their face, reciting that they were made and issued for a lawful purpose. There can be no doubt that the bonds were delivered to the banker, Chandler, for deposit in his vault until they should be earned by Seeley. They were put into an envelope with the following indorsement upon it:

“Inclosed are three bonds of the village of Frankfort, of one thousand dollars each, to be given to Howard Seeley, or the Frankfort Woodenware Co., as soon as their factory is completed and ready to run. They are now placed in escrow until that time, in a vault of the Bank of Frankfort for safe-keeping, in accordance with a" vote of the council February 27, 1895. If the factory is not completed, ready to run, by August 26, 1895, the bonds are to be returned to the village council and destroyed,- as per vote of council March i, 1895.”

Counsel for the defendant claim: (1) That the council did not authorize the deposit of park bonds, but of other bonds; (2) that the deposit was not with a view to delivery, but merely safe-keeping.

The record of the common council shows that it was moved that the president and clerk be instructed to sign the contract in duplicate with Howard Seeley. Also to execute three bonds, of the denomination of one thousand dollars each, payable in ten years, and bearing interest at six per cent, per annum, payable annually. Said bonds to be placed in escrow in a vault in the Bank of Frankfort, until said factory is completed and ready to run; then to be turned over to said Howard Seeley as per contract.” This motion was carried by a vote of four to two. The testimony shows that negotiations had been pending for some time in relation to the establishment of a wooden ware factory by Seeley, for which he was to receive a bonus in the way of bonds from the municipality. To give it the semblance of legality, the council submitted to the electors of the village a proposition to issue bonds for the purpose of a public park. It was understood by the electors, as well as the council, that this was to be a subterfuge, and that the bonds' were really to be delivered to Seeley as a bonus. At an election called for the purpose, the proposition to bond the village for park purposes was carried, and it was in furtherance of the scheme that the resolution quoted was adopted. It was followed by a motion that the special election held on the 30th of January, 1895, for the issue of park bonds, be declared to have resulted in the carrying of the proposition. The record fails to show that any other bonds had been talked about or authorized. The resolution mentioned was followed by the execution of the bonds in question as park bonds, indicating that the officers who executed the - bonds understood that those were the bonds referred to by the resolution. The bonds were delivered to the bank, as already stated, in escrow. There was testimony offered tending to show that some time later an oral report was made to the council by the banker that the bonds had been delivered to Mr. Seeley. This testimony was excluded, and we think erroneously. It was competent to show that the council was informed of the delivery of the bonds, and made no protest, as tending to show that they were not delivered to the bank to be held for the council, but that they were to be delivered when earned, in accordance with the memoranda upon the enyelope. The term ‘ ‘ escrow ” implies that the depositary is not to hold the deposit at the will of the depositor, but that it is to be delivered to the person entitled to it upon the happening of the event upon which the delivery is conditioned. We think the circumstances surrounding this case show plainly that the bonds were delivered to the bank by the officers of the council, under direction of the council, to be held for Seeley, and that the bank was to deliver them to Seeley upon performance of his obligation within the time prescribed. Whether the condition was performed or not, we need not inquire. The bonds were issued, and were delivered to Seeley, by whom they were negotiated to plaintiffs through the bank. We think this constitutes a sufficient delivery.

The remaining question relates to the good faith of the plaintiffs’ purchase. That was a question of fact, and should have been left to the jury, unless it can be said that the testimony conclusively shows that plaintiffs were not such purchasers. There was testimony that they relied upon the recitals in the bonds, which, as already stated, asserted that they were executed and issued for the purpose of a public park. Undoubtedly, if the purchasers had been aware of the resolution under which these bonds were issued, it,would have been notice of their invalidity; but the evidence indicates that they had no such notice, and that they relied upon the recitals in the bonds, and an accompanying letter from the prosecuting attorney that the proceedings were, upon their face, valid, as to the vote of the electors to issue park bonds. We have held in several cases that one relying upon the recitals in a bond that it was lawfully issued may be a purchaser in good faith. Common Council of Cedar Springs v. Schlich, 81 Mich. 405 (45 N. W. 994, 8 L. R. A. 851); Gibbs v. School District, 88 Mich. 334 (50 N. W. 294, 26 Am. St. Rep. 295); Thompson v. Village of Mecosta, 127 Mich. 522 (86 N. W. 1044). The case is not within the rule laid down in Portsmouth Sav. Bank v. Village of Ashley, 91 Mich. 670 (52 N. W. 74, 30 Am. St. Rep. 511).

The court erred in directing a verdict for the defendant, and the judgment is therefore reversed, and a new trial ordered.

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


author: Montgomery, J.

text:
    FREDA v. OLSCHEFSKI.
    1. Ejectment — Boundaries—Surveyors—Evidence.
    Where, in ejectment involving a disputed boundary, several surveyors had testified to the lines, the refusal to permit one surveyor to testify as to the effect on old lot lines if the line of a certain other surveyor were accepted was not prejudicial; the same being plainly deducible from the testimony.
    2. Same.
    Nor was it prejudicial to refuse to permit a question as to the depth of the lots; the same not being in issue, and the witness having testified that he had made no survey to ascertain the depth of one of them.
    Error to Wayne; Frazer, J.
    Submitted April 22, 1902.
    (Docket No. 111.)
    Decided June 24, 1902.
    Ejectment by Frank Freda against John and Anna Olschefski. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      Adolph Bloman, for appellant.

      Jaynes O. Murfin, for appellees.
   Montgomery, J.

This is an action of ejectment, involving a piece of land six inches in width, extending from the front to the rear of lot -2 of T. J. Park’s subdivision of certain lots on the Riopelle farm, in the city of Detroit. The plaintiff sold to the defendant lot 1 and the south feet of lot 2 of this subdivision. It is stated in the brief of plaintiff’s counsel that the plaintiff supposed that he had sold 50 feet of ground to the defendant, while the defendant understood that he was getting 50 40-100 feet. According to the plat and conveyances, the defendant’s claim that he purchased more than 50 feet is supported. This controversy is not, however, material in the case, except as it may show an occasion for the controversy which has been waged over this small strip of land. On the trial the whole case was made to turn upon the question of where the correct boundary line was. Upon this question there was conflicting testimony, four different surveyors having testified in the case. The case was fairly submitted to the jury in a charge not open to just criticism, and the jury found a verdict for the defendant. The plaintiff brings error.

The first assignment of error discussed in the brief of counsel is upon the refusal of the court to allow the witness King, one of the surveyors, to answer the question: “If Jerome’s line were accepted, in what way would it affect the old boundary lines, or the lines north of that ?” The court, in excluding this testimony, remarked: ‘ ‘ Anybody could tell that, because, if he is right in his statement, it would put them all so much farther north.” This statement is absolutely correct, as a matter of fact, as shown by the record. For the witness to have answered this question would have been to again measure his testimony against Jerome’s, and it is manifest that the refusal to permit this answer could not have prejudiced the plaintiff. The next question, which was very similar, was open to the same answer.

Error is assigned upon the exclusion of certain questions put to the witness Jerome, one of the surveyors, who had made a survey at the instance of the plaintiff, but who was called by the defendant. These questions, so far as they were not repetitions of what had gone before, related to the question of the depth of the lots. It appears by his testimony that he did not survey to ascertain the depth of lot 1, and, as the depth was not in controversy, we cannot see how the plaintiff was prejudiced by the exclusion of this testimony.

Error is also assigned upon certain remarks of counsel in the course of the case. Without setting out at length the language used, we think no error was committed which calls for a reversal of the case on this ground.

Certain requests were presented, asking to have the survey of Jerome excluded from the consideration of the jury, on the assumption that he had not commenced his survey at the correct starting point. But we think that his testimony shows that he started from a well-recognized point, and that there was sufficient to authorize the jury to consider his survey.

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

Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit.'


text:
    CLUTE v. IONIA CIRCUIT JUDGE.
    1. Recognizance— Execution in Advance of Arrest — Validity.
    Where an instrument in the form of a recognizance was prepared and signed by the sureties before the arrest of the principal, and the next day was certified by the justice, in due form, as and for a recognizance taken before him, the instrument was void.

      2. Mandamus — Costs.
    Costs will not follow on the denial of an application for mandamus, made by the prosecuting attorney in the interest of the public.

      Mandamus by William K. Clute, prosecuting attorney of Ionia county, to compel Frank D. M. Davis, circuit judge of said county, to vacate an order remitting the penalty of an alleged recognizance.
    Submitted April 22, 1902.
    (Calendar No. 19,214.)
    Writ denied June 24, 1902.

      William K. Clute, in pro. per.

      Morse & Locke, for respondent.
   Montgomery, J.

This is an application for mandamus to compel the circuit judge to vacate an order remitting the penalty of a recognizance, which purported to be given in the sum of $500, for the appearance of George J. Bogart at his examination upon a charge of forgery. It appeared on the application before the circuit judge that the so-called recognizance was prepared in advance of the arrest of the principal, Bogart, was presented to the sureties and signed by them, and was upon the following day certified by the justice, in due form, as and for a recognizance taken before him. The circuit judge was of the opinion that the paper executed in this manner was not valid, and created no liability, either under the statute or the common law, as against the sureties; and the correctness of this ruling presents the sole question in the case.

We think, the ruling was in line with the weight of authority and with the previous holdings of this court. The justice had no jurisdiction to accept the recognizance except in a case actually pending before him, and when the paper was presented to him he must be presumed to have known this fact, and that no authority existed for releasing the- accused upon such a recognizance. The case, in principle, is like Clink v. Muskegon Circuit Judge, 58 Mich. 242 (25 N. W. 175), where a recognizancó of special bail was acknowledged before a notary public. It was held that, as notaries public have no power to take such recognizances, the recognizance was void. The precise question involved in this case was recently decided by the supreme court of Pennsylvania in Com. v. Hickey, 172 Pa. St. 39 (33 Atl. 188). It was there said:

“ The magistrate could not certify that he had done an act which he had not done, and, as that act was essential to any obligation of the defendant, there was nothing to support the action.”

See, also, Dickenson v. State, 20 Neb. 72 (29 N. W. 184); Harris v. Simpson, 14 Am. Dec. 101, and notes; Williams v. Shelby, 2 Or. 144; Powell v. State, 15 Ohio, 579; Hutchinson v. Board of Sup'rs of Ionia Co., 130 Mich. 62 (89 N. W. 561).

The application for mandamus will be denied, but, as the proceeding was instituted in the interest of the public, no costs will be allowed.

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


text:
    BAYS v. WARREN FEATHERBONE CO.
    1. Injury to Servant — Assumption of Risk.
    Plaintiff, an adult employé, was injured while operating a hoisting apparatus consisting in part of a wheel turned by an endless rope, which was kept in place on the wheel by V-shaped pieces of wood. Some of these pieces had split off of the wheel, and the injury was occasioned by the rope running off. Held, that the danger of the rope running off the wheel if not kept in line, and the defect therein, were so apparent that plaintiff should be deemed to have assumed the risk.
    2. Same — Weight of Evidence — New Trial.
    Where, in an action for injuries received in operating a hoisting apparatus, plaintiff testified that he had never operated it before, but on cross-examination he showed a familiarity with it hardly consistent with the statement, and nine other witnesses testified that they had seen him operate it, a verdict for plaintiff was so contrary to the weight of the evidence that a new trial should have been granted.

      Error to Berrien; Coolidge, J.
    Submitted April 23, 1902.
    (Docket No. 52.)
    Decided June 24, 1902.
    Case by John T. Bays against the Warren Eeatherbone Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      W. G. Howard and Gore & Harvey, for appellant.

      G. M. Valentine and M. L. Howell, for appellee.
   Hooker, C. J.

The plaintiff recovered a verdict of $11,000 for injuries alleged to have been suffered while in defendant’s employ. In the third story of defendant’s warehouse there was an apparatus for hoisting and lowering boxes of material. It consisted of a wooden wheel, four or five feet in diameter, whose axis was a shaft which turned with the wheel upon bearings. This shaft extended through the gable of the building, and upon the outside there was a drum, eight inches in diameter, upon which a rope was wound, which served to raise the load. By turning the wheel inside, the rope was unwound from or wound upon the drum. The inner wheel was turned by an endless rope about two inches in diameter, which ran upon the face or edge of the wheel, which was about eight inches wide. Blocks two inches by four, with V-shaped notches cut in the center, were nailed upon the face of the wheel at intervals of about seven inches, and the rope was expected to run in these notches. There was testimony tending to show that some of the two' by four pieces had split off. Below the drum and opposite the wheel, in the gable, was a door, through which the box to be lowered was ejected. The plaintiff testified that he found it necessary to push the box out of the door, and that while doing so with one hand, while he held the endless rope with the other, the box got away, and he was violently jerked, and he afterwards found, “when he came to,” that the rope was off from the wheel. He was unable to explain how it was done, and the only theory upon which the jerk can be explained, under the evidence, consistent with his statement that he had hold of the endless rope, is that, in pushing the box out, he pulled the rope out of line with the wheel, and did not hold the rope tight, but allowed the wheel to turn, thereby running the rope off from the wheel, as would necessarily be the case. Unless we can say this, there is nothing to indicate how or why the accident occurred.

Assuming that the accident happened in the way mentioned, the questions in the case are: (1) Was defendant negligent in maintaining the wheel in a condition which would permit the rope to run off when pulled out of line, and not warning the plaintiff ? (2) Did the plaintiff assume the risk?

This wheel was a simple affair. From the description, and a model which was before us, it appeared that its alleged defects were visible to any one operating it who should take the trouble to look. It had been operated for years without serious results, although the rope would come off occasionally when pulled out of line and the weight simultaneously lowered. The V-shaped blocks were designed to aid in keeping the rope in place, and their purpose was obvious. If broken off, as some of them were, it was apparent that there would be less to keep the rope in place. It is common knowledge that, by pushing a rope or belt out of line with its. pulley, it will run off; so common that to presume that one who has worked about machinery does not know it, would not be justified. This man was an adult, and had worked about the shop of defendant for a long time. He was at the time a sort of a foreman, and a part of his duty was to fix the belts in the shop. We are of the opinion that he was as well able to judge of the necessity for keeping the rope in line as his employer was, and that he must have known that a failure to do so would be attended with danger that the rope would get off from the wheel, and that, if it can be said that the wheel was unsafe, it should also be said that the defect was apparent and the risk assumed.

The testimony shows that this plaintiff had used that wheel many times. If he had, he knew all about it as a matter of fact. He admitted that he had worked for this company ‘ ‘ off and on ” for twelve years. Harmon testified that he had seen him hoist boxes by that apparatus. Holden had seen him doing it frequently for two and a half years. Salters had been up there with him when he operated it, and had seen him at the warehouse often. Carlyle said he had helped him many times; or, as he stated it, “lots of times.” Warren said that-he had often seen him do it when he (plaintiff) was drayman for defendant. Gahler says he helped him hoist a number of times. Trowbridge had seen it many times. Gelow and Lampke each saw him raise and lower goods many times. As against this rather overwhelming evidence there is the testimony of the plaintiff that he never operated the wheel befoi’e, though his cross-examination indicates a familiarity with the method of doing the business hardly consistent with the statement. If, as claimed, his testimony gave him the right to go to the jury with the question, the weight of evidence was so( overwhelming against him as to satisfy us that a new trial should have been granted. Upon the proofs in the case, a verdict of $11,000 was- unconscionable. •

The judgment is reversed, and a new trial ordered.

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


author: Grant, J.

text:
    BLUMRICH v. VILLAGE OF HIGHLAND PARK.
    Municipal Corporations — Defective Sidewalks —Claim for Injuries — Presentation—Waiver.
    The provisions of 1 Comp. Laws, §§ 2754, 2775, requiring, as a condition precédent to the liability of a village for injuries caused by a defective sidewalk, that a verified claim be presented to the council, and that notice in writing be served on the clerk within 60 days after the injury, are not waived where a son of the person injured appears before the council without proof of his authority, and states that she was injured, and that she presents a claim for damages, and the council refers the matter to the committee on village affairs, which does not meet or make any report, but a member of it, at a time not shown, tells the son he ought to have filed a written statement with the clerk.
    Error to Wayne; Rohnert, J.
    Submitted April 24, 1902.
    (Docket No. 143.)
    Decided June 24, 1902.
    Case by Louisa Blumrich against the village of Highland Park for personal injuries. Erom a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff claims to have fallen upon a defective sidewalk and received an injury, for which she sued the defendant, and recovered verdict and judgment. She presented no claim in writing to the common council. Her son, Mr. Schroeder, appeared in open session of the council, and testified that, as the council “ was about ready to close, the chairman spoke up and said, ‘ There is a gentleman here who wishes to say something;’ ” whereupon the son arose, and said:
    “ ‘Gentlemen, you are aware of the accident that occurred on Glendale avenue, on the 8th day of October, to Mrs. Blumrich, my mother.’ I said, ‘ She fell on the sidewalk there, just west of Woodward avenue, and was hurt pretty badly, and she wants to know what the village is going to do with regard to this claim. She presents a claim for damages.’ So somebody spoke up and said, We will leave that to the committee or trustees.’ ”
    It was then “moved and supported that the matter in regard to Mrs. Blumrich falling on a defective sidewalk on Glendale avenue be referred to the committee on village affairs, and to report at the next meeting.” The motion prevailed. The committee did not meet. Two of them met once, and Mr. Schroeder testified that he appeared there, and that nothing was done; one of the committee telling him that he ought to have a written statement filed with the town clerk.
    The statute provides that no account or claim shall be received for audit or allowance unless accompanied by the certificate of an officer of the corporation or an affidavit of the person rendering it, etc., and makes it a sufficient defense in any court against any such claim, whether for personal injuries or otherwise, that it has never been presented, certified to or verified as provided. 1 Comp. Laws, § 2754. The statute also provides that no village shall be liable for injuries resulting from defective streets or sidewalks unless the person injured shall serve or cause to be served, within 60 days after such injury, a notice in writing upon the clerk or, deputy clerk of such village, setting forth substantially the time when and place where such injury took place, the manner in which it occurred, the extent of the injury, and that the person receiving such injury intends to hold the village liable for such damages. 1 Comp. Laws, § 2775.

      Rowland M. Connor, for appellant.

      Sumner Collins (Timothy E. Tarsney, of counsel), for appellee.
   Grant, J.

(after stating the facts). Two questions are presented: (1) Did the action of the council operate as a waiver of the provisions of the statute in regard to the notices required? (2) Was there sufficient evidence of negligence on the part of the defendant to justify the sub-' mission of that question to the jury F

Plaintiff neither filed any notice with the clerk, nor presented any claim to the council of the village in writing. 'The verbal report which, it is urged, was made hy her son, specified no damages, and in no respect complied with the statute. In every case where this court has held that the municipal authorities, have waived the provisions of this statute, there has been a written claim which was defective, or the case has been tried without any such defense being set up, and the attempt was made to raise the question upon a motion for a new trial. In Canfield v. City of Jackson, 112 Mich. 120 (70 N. W. 444), the question was raised for the first time on the part of the defense on a motion for a new trial. In Griswold v. City of Ludington, 116 Mich. 401 (74 N. W. 663), an unverified claim was presented and acted upon. The same state of facts existed in Wright v. Village of Portland, 118 Mich. 23 (76 N. W. 141). In Germaine v. City of Muskegon, 105 Mich. 213 (63 N. W. 78), the claim was verified by the attorney for the claimant, whose verification was void under the statute. No objection was made. The claim was duly considered and rejected. In Foster v. Village of Bellaire, 127 Mich. 13 (86 N. W. 383), a written claim was presented, hut without itemizing or verification. The opinion does not show what acts were relied upon to constitute a waiver. The question of waiver was left to the jury. We are now asked to carry this doctrine of waiver still further, and hold that where a party appears for the claimant without any authority being shown, — for there is nothing in the record to show that plaintiff ever authorized her son to present this claim to the council, — and states that an injured party presents a claim, and wants to know what the village is going to do with regard to it, and the matter is then referred, not to the usual committee for the consideration of claims, but to another committee, which does not' even meet, and makes no report, these wise provisions of the statute have been waived. If this be the case, the statute is of little worth.

Everybody is presumed to know the law- If this plaintiff authorized her son to appear before the council, she probably understood that some notice was necessary. The object of this law is not only to notify the village authorities, so that they may at once examine into the case, the nature of the injuries, and the justice of the claim, but it •is also in the interest of the public and the taxpayers, so that they may know what claims are made against the corporation. Another evident purpose of the statute is to promptly put claimants upon record as to the manner of the accident, the character of the injury, the defect, as well as time and place, and thus avoid these matters resting in parol until the day of trial. Every purpose of the statute is annulled if the ruling of the court below prevails. The committee did not meet, and made no report. Two of them met, and one of them notified the son that his mother should have filed a claim in writing. Whether this was before or after the expiration of 60 days is not entirely clear. The testimony of the son is such that a jury might find upon this point either way. We think there was no waiver of the statute, and that the court should have directed a verdict for the defendant. It follows that the judgment must be reversed, and new trial ordered.

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


text:
    MAINS v. WEBBER’S ESTATE.
    1. Husband and Wife — Separate Property — Wife’s Paraphernalia.
    Articles of personal adornment purchased by a husband for the use of his wife belong to him, as against the wife’s administrator, in the absence of proof of a gift to the wife.
    2. Same — Gift—Evidence.
    Evidence that certain jewels were worn by a wife at will, and that she held the key to the box in which they were kept, is insufficient to justify a finding that they belonged to her as against her husband, where it is also shown that she had no separate estate, that the jewel box was deposited in a vault at the husband’s bank, and that, after her death, the jewels were worn by his second and third wives.
    8. Same — Bank Deposit — Ownership—Question for Jury.
    Whether a certificate of deposit standing hrthe name of a wife at her death was owned by her or her husbWd is a question for - the jury, on evidence that she paid no consideration for the certificate, that it was never beyond the control of the husband, and that he received the earnings thereof.
    4. Same — Evidence.
    Upon such issue, the testimony of the bank cashier as to how the certificate was left with him, and for whom he was handling it, is inadmissible.
    5. Same.
    But it is competent to show the transactions between the husband and wife which culminated in the issuance of the certificate, and that there was no secrecy by the husband in dealing with the fund.
    8. Same — Rights of Administrator.
    An administrator of a wife has no right to a certificate of deposit standing in the name of the wife, but representing a fund owned by the husband.
    7. Same — Claims—Laches.
    The failure of the estate of a wife to present a claim against the husband for property alleged to have belonged to the wife, during the 10 years which he survived her, is a circumstance which the jury may consider in determining the justness of the claim.

      Error to Ionia; Davis, J.
    Submitted April 24, 1902.
    (Docket No. 14.)
    Decided June 24, 1902.
    Eldon P. Mains, administrator of the estate of Antoinette C. Webber, deceased, presented a claim against the estate of George W. Webber, deceased, for the value of property-alleged to have been converted by him in his lifetime. The claim was disallowed in the probate court, and claimant appealed to the circuit, where defendant again prevailed. Claimant brings error.
    Affirmed.

      V. H. & II. H. Smith, for appellant.

      Morse & Locke (Knappen, Kleinhans & Knappen, of counsel), for appellee.
   Hooker, C. J.

George W. and Antoinette C. Webber were husband and wife. It was a childless marriage, and she died April 11, 1890. While George W. Webber was a member of the United States Congress, Antoinette Webber spent some time in Washington; and while there she was seen to wear the diamonds in controversy in this suit, and she frequently wore them afterwards. They were kept in a jewel box, of which she had the key; the box being deposited in the safety vault in a bank in Ionia, of which George W. Webber was a part owner. There is no evidence that they were a part of her separate property, except the foregoing. There is a possible inference that she did not purchase the property; her sister haying testified that she received no property from her father, and nothing being shown to indicate that she had any property; and there is a possible inference that George W. Webber purchased the diamonds for her use, from the testimony of his nephew, who said to his uncle, George W. Webber, that “the diamonds that auntie had were very nice ones; ” that Webber simply made some remark that they were nice, — some thing of that kind, — and did not enter into any discussion with him as to when,he bought them, or how much he paid for them, or the fact that he had given them to his wife.

On January 14, 1879, George W. Webber was a stockholder in the Second National Bank of Ionia. On that date he surrendered a certificate of 200 shares, and had issued to his wife, Antoinette, a certificate for 10 shares, and to himself a certificate for the remaining 190 shares. On the same date she was elected director, and continued such until January 8, 1889, — a few days before the liquidation of the bank. During the period that she was a stockholder, semi-annual dividends were paid by qhecks issued by the cashier, and generally made payable to the order of Mrs. Webber. They were sent by mail to her address, and were subsequently deposited to the bank account of George W. Webber, usually bearing the indorsement of Antoinette O. Webber. The Second National Bank, went into voluntary liquidation January 15, 1889, and was succeeded by the private bank of Webber Bros., of whom George W. was one. On the liquidation of the Second National Bank, there was issued by the banking firm of Webber Bros, a certificate of deposit, dated February 12, 1889, to the order of Mrs. George W. Webber, for $1,632.40, bearing 4 per cent, interest, and representing the proceeds of the Second National Bank stock which had stood in her name. This certificate of deposit was renewed from time to time, and was kept in the bank-in a pouch accessible to the bank officers. The interest on the certificate was credited to the account of George W. Webber. About two months after the death of Mrs. Webber, upon the maturity of the current certificate of deposit, Mr. Herbert B. Webber, the cashier, who was the general custodian of the certificate in question, as well as of papers of George W. Webber, took the certificate of deposit, and surrendered it without indorsement, and caused the teller to issue a new certificate to Mrs. George W. Webber, and to credit the interest to George W. Webber’s bank account. Similar renewals were had subsequently. On November 2, 1891, the certificate of deposit was surrendered by George W. Webber in the presence and with the approval of Herbert B. Webber, and the amount of that certificate was put into a new certificate of deposit for $20,000 issued to George W. Webber. The certificate of deposit was reduced from time to time until, before the death of George W. Webber, which occurred January 15, 1900, all had been drawn out.

The relatives of Mrs. Webber caused letters of administration to issue upon the estate of Antoinette O. Webber, and their claim to be filed against the estate of George W. Webber, deceased, for the amount of the certificate of deposit, and payments of interest thereon from the date of its first issue, and also for the value of the diamonds mentioned. The case was tried in the circuit before a jury. The court held there could be no recovery for the diamonds, and submitted to the jury the question whether or not George W. Webber was the real owner of the fund represented by the certificate of deposit. A verdict was rendered for the defendant.

The evidence shows that, after the death of Antoinette Webber, George W. Webber married again, and the diamonds continued to be kept, as before, in the jewel box and in the bank vault, and they were used at will by his second wife. At her death, Mr. Webber married the lady who is now his widow, — Mrs. Ella Webber. She has worn the diamonds, and kept them, when not being worn, at the bank, in the same way that the first, and second Mrs. Webber did. It is contended on behalf of the defense that the jewels were a part of the paraphernalia of Antoinette Webber, procured for her use by her husband, and that, in the absence of proof that they became part of her separate estate through gift from her husband, the claimant should not recover.

In the case of Hawkins v. Railroad Co., 119 Mass. 596 (20 Am. Rep. 353), it was held that personal apparel furnished by a husband to his wife, or purchased by the wife, with the consent of her husband, with money given her by him from a fund formed by their joint earnings, remained the property of the husband, and the wife could not maintain an action against a carrier for the loss thereof.

In the case of Smith v. Abair, 87 Mich. 62 (49 N. W. 509), it was held that a husband has a sufficient title to the wearing apparel purchased by his wife with his money to enable him to maintain replevin against an officer who seizes it upon a tax warrant in satisfaction of a tax assessed against the wife upon her separate property. The opinion indorsed the ruling of the circuit judge, who said:

“The statutes of the State have made no change in the common-law rule that the obligation to furnish the wife with her wearing apparel, the same as in the case of a man with minor children, is imposed upon the husband still, and, as in the case of a man with minor children, the wearing apparel belongs to the husband, as between himself and a third person who undertakes to remove it.”

This court said further:

The husband “may insure it as his own property; * * * [and] the purchase of the property for her use is no more a gift to her than is the purchase of apparel for a minor child such a gift to that child as would devest the parent of a right to recover it from a third person.”

Again it was said:

“ The statute of distribution of estates of intestates, re-enacted since the married woman’s act, provides that the widow shall be allowed all her articles of apparel and ornaments. This would indicate that, without such a provision, these articles would constitute a part of decedent’s estate, and would be liable, as such, to be sold for the payment of his debts.”

In the case of Curtis v. Railroad Co., 74 N. Y. 122 (30 Am. Rep. 271), it was said:

“At common law, during coverture, the wife’s paraphernalia belonged to the husband. * * * The statute has not changed the rule, except that the wife’s paraphernalia is secured to her, even against creditors. The title is in the husband, when he has paid for the articles and furnished them. Nor do the statutes in reference to the rights of married women, and gifts of personal property from the husband to the wife, affect the husband’s right, until a gift has been actually made and is proved. * * * Where there is a gift, the wife may bring an action, but otherwise the husband must sue.”

The cases of Rawson v. Railroad Co., 48 N. Y. 215 (8 Am. Rep. 543), and Whiton v. Snyder, 88 N. Y. 306, and Cummings v. Friedman, 65 Wis. 183 (26 N. W. 575, 56 Am. Rep. 628), are not inconsistent with this doctrine, as they are all predicated upon the assumption that the wife had acquired title through gift or otherwise; and, though it may be contended that a gift may be presumed from mere possession, such is not the holding of all the cases, and in this case we think the presumption is overcome by the evidence adduced. In saying this, we do not assent to the proposition that a gift is to be presumed from the mere possession by a wife of her wearing apparel. We think that the court committed no error in taking this question from the jury.

The other item was properly left to the jury. There was testimony in the case tending to show that the stock in the national bank was received by the wife without consideration, and that such stock, and the certificate of deposit which was afterwards given, with its proceeds, were never beyond the control of the husband. He seems to have had at all times the earnings of both the stock and the certificate. The jury having passed upon that question, we must take it as settled.

Many errors are assigned upon the proceedings. Of these, several relate to the testimony of Herbert B. Webber, who was asked to state how the certificates of deposit were left with him, and for whom he was handling them. The court sustained objections to these questions, and in this he did not err. It was for the jury to determine, from what was said and done, whom this deposit was made by, and for whom it was held. We think it was competent to show the history of the transaction between George W. Webber and his wife which culminated in the giving of the certificate of deposit. It was also competent to show by Herbert B. Webber that there was no secrecy upon the part of George W. Webber in his dealings with this fund.

Some testimony was offered tending to show that the father of Antoinette Webber was insane, and for a long time an inmate of the Kalamazoo asylum at the expense of George W. Webber. It was understood, and the jury was told, that that testimony had no bearing except as it tended to show that Antoinette Webber received no property from her father. We think the claimant suffered no injury thereby.

We are also of the opinion that the view taken in this case by the jury excludes any right on the part of the administrator of Antoinette Webber to the property in question. If it was the property of George W. Webber, it was not necessary that it should go through the hands of the administrator of Antoinette.

We find no error in what the court said regarding the long delay in filing this claim. George W. Webber lived some 10 years after the death of Antoinette, and no steps were taken during his life to obtain any part of this property; nor, so far as we can discover, was any claim made that she left any property. The court instructed the jury that, while the statute of limitations did not run against this claim, this delay was a circumstance which might be taken into consideration by them in determining the probabilities of the justness of the claimant’s claim. For this purpose it was competent.

It becomes unnecessary to discuss the question of the rule of damages, or other assignments of error.

The- order of the circuit court is affirmed.

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


text:
    BORDEN v. FLETCHER’S ESTATE.
    1. Statute of Limitations — Part Payment — New Promise.
    The theory on which part payment of a debt arrests the running of the statute of limitations is that it implies a new promise to pay; and a payment made under circumstances inconsistent with such an inference is ineffective.
    2. Same — Joint Debtors.
    A payment by a joint debtor will not arrest the running of the statute as to his co-debtor. 3 Comp. Laws, § 9745.
    3. Same — Partnership.
    And the fact that the debtors were copartners can make no difference, if the partnership had been dissolved at the time of the payment.
    4. Same — Principal and Surety.
    Letters written by a surety on a note, in form a joint maker, to his principal, at the request of the payee, urging that a payment be made on the note, and expressing his own desire to the same effect, do not make the surety a party to payments made by the principal in compliance therewith, so as to deprive him of the benefit of the statute of limitations.
    5. Same — Acknowledgment of Debt.
    Nor are the letters such an acknowledgment of a continuing obligation, within 3 Comp. Laws, § 9740, as will take the case out of the statute.
    6. Contracts — Construction—Parol Evidence.
    Parol evidence is admissible to aid in arriving at the intention of parties in the use of equivocal words in a contract.
    7. Same — Principal and Surety — Extension of Time.
    In an action against a surety on a note which bears his indorsement, written after maturity, consenting to “ any extension of time ” that might be given the maker, evidence that the surety, in refusing to renew the indorsement, stated that it was as good as though he should, sign it again, is admissible, as tending to show the light in which the parties regarded the agreement, which was susceptible of meaning either a technical extension, or forbearance and successive indulgences.

      8. Same — Consideration.
    A surety’s consent to the granting of indulgence to his principal cannot be said to have been without consideration, where the principal has had the benefit thereof.
    Error to Kent; Wolcott, J.
    Submitted April 25, 1902.
    (Docket No. 139.)
    Decided June 24, 1902.
    Eliza A. Borden, by Frances B. Eby, her guardian, ^ presented a claim against the estate of Niram A. Fletcher, deceased, upon a promissory note. From a judgment for defendant on verdict directed by the court, claimant brings error.
    Reversed.

      H. B. Fallass, for appellant.

      Knappen, Kleinhans & Knappen, for appellee.
   Hooker, C. J.

The appellant presented a claim against the estate of Niram A. Fletcher, deceased. It was based on a promissory note for $2,500, with interest at 8 per cent., dated December 29,1881, due two years after date, and signed “Simonds & Fletcher.” A number of unsigned indorsements of payments were written on its back; also the following:

‘‘ Feb. 1, ’87. I consent to any extension of time which may be given to O. H. Simonds on the within note.
“N. A. Fletcher.”

The defendant answered, among other things, that the note was barred by the statute of limitations, and the probate court so held, as did the circuit court upon appeal, a verdict being directed for the defendant. Plaintiff has taken a writ of error.

Five points are raised by the appellant’s counsel, viz.:

First. Was Mr. Fletcher a party to the payments made, and within six years ?

Second. Did Mr. Fletcher acknowledge the debt in writing within six years of his decease, and within the meaning of the statute of limitations of the State of Michigan ?

Third. Was the term ‘ ‘ extension, ” used by Mr. Fletcher on the back of the note, intended to mean indulgence, and intended for an indefinite length of time ?

Fourth. Were the statements of Mr. Fletcher to Mr. Sessions, that he was “as much holden as he possibly could be,” of such a nature that it would operate as a fraud to hold them to have been false ? In other words, is Mr. Fletcher estopped from denying that he told Mr. Sessions the truth ?

Fifth.: After all parties knew of Mr. Fletcher’s surety-ship, did he remain a joint maker, within the meaning of the statute, so that a payment by the principal would not renew the paper as to him ?

For a better understanding of the several points, we will state the facts in connection with the discussion of the questions raised.

The note in question was given when Simonds and Fletcher were in copartnership. Subsequently they dissolved their copartnership, and Simonds left the State. There seems to be no doubt that, as between them, it was afterwards the duty of Simonds to pay the note, and that this was understood by the payee. Counsel for the plaintiff states in his brief': “Now, Mr. Fletcher was a party to this note, and was a surety after the dissolution.” The note became due on January 1, 1884, and the statute ran against it in six years, i. e., January 1, 1890, except as it may have been affected: First, by Simonds’ non-residence'; second, by payments; third, by new promises.

The record is not very clear as to the circumstances of the various payments; yet counsel seem to concede that they were made as indorsed on the note, and that Simonds furnished the money paid in each instance. Whatever the rule may have been at common law (see Mainzinger v. Mohr, 41 Mich. 687 [3 N. W. 183]), our statute has provided that no joint contractor shall lose the benefit of the statute of limitations, so as to be chargeable, by reason only of any payment made by another joint contractor. 3 Comp. Laws, § 9745. And if it should be claimed that payment made by one copartner would bind another, upon the ground of his agency growing out of the copartnership relation, it could not apply here, under our statute, because of the termination of the agency by the dissolution of the copartnership. 13 Am. & Eng. Enc. Law (1st Ed.), 761, and authorities cited.

It is contended, however, that Fletcher was a party to such payments in a way and to a degree that makes him liable. The theory upon which a part payment arrests the running of the statute is that it implies a new promise to pay; and a payment made under'circumstances inconsistent with such an inference is not effective. See Wood, Lim. § 97, and notes. In Mainzinger v. Mohr, 41 Mich. 687 (3 N. W. 183), the statute is construed, and the doctrine stated that the statute requires a new promise, and that it cannot be.implied from the act of one who has not authority to make an express promise. In that case an undisclosed surety, who was a joint maker, went with the principal to the creditor, where the money was paid by the principal under circumstances which justified the creditor in understanding such payment to be the act of both and treating it as a joint act; but the case does not negative the general rule that a new promise must be naturally inferable from the circumstances of the payment, a doctrine that has since been recognized in the cases of Home Life-Ins. Co. v. Elwell, 111 Mich. 689 (70 N. W. 334), and Patterson v. Collier, 113 Mich. 12 (71 N. W. 327, 67 Am. St. Rep. 440).

Several letters which passed‘between Fletcher and Simonds were introduced at the trial, and it is claimed that these contain evidence that the payments were made under circumstances which implied a new promise by Fletcher. These letters were usually written either at the request of the payee, or after demand of payment made to Fletcher by him. It does not appear that any of these letters were written to the payee, or that he ever saw them. One written by Fletcher to Simonds on February G, 1885, states that “ Borden has been bothering me about the interest on your note,” and states that “if he had any Simonds & Fletcher funds on hand he would pay it.” On February 9, 1886, he wrote:

“Mr. Borden has been in a great many times lately, urging me to write to you, asking that something be paid on your note. I have delayed doing so until now, and I could not put him off any longer.”

On December 11, 1888, Simonds wrote Borden as follows:

“Duluth, Minn., Dec. 11th, 1888.
“Andrew Borden,
“Jefferson Ave.,
“Grand Rapids, Mich.
Dear Sir: I understand Fletcher paid you $500 on my account. If so, please write me, giving date, and say that it is indorsed on my note.”

In answer to this, Mr. Fletcher wrote as follows:

“Dec. 17th, 1888.
Dear Omar: Mr. Borden brought your letter to him, and asked me to answer it. I paid the $500 to him on the 3d day of December, and indorsed the amount on the note myself. He seems to be in very good humor, and wanted me to send you his kindest regards, and said that he wished you much prosperity.”

The following is an extract from a letter’ written by Fletcher to Simonds on January 21, 1891:

“ Mr. Borden was in here about two weeks ago, and asked me to write you requesting you to send him some money. He did not name the amount. I promised to do it, but forgot it. He was in to see me again today, to know what reply you had made, and I told him frankly that I had forgotten to write you at all, but that I would be sure to write you today. I do not think that he feels at all uneasy, or that he cares for any great amount. If it is not convenient for you to pay him any just now, I believe if you should write him a letter to that effect, he would say to let the matter run.”

On June 15, 1891, Fletcher wrote:

Dear Omar: I inclose Beckwith’s computation on the Borden note. He says that he found a mistake in the computation of interest made in February, 1886, in which a mistake of over $100 against you was made. He thinks that this computation is now right, but you have the figures, and can go over it and satisfy yourself about it.”

On October 16th he wrote the following:

“Dear Omar: Andrew Borden called on me today, and said that he expected you to send him a new note for amount his due after you received the computation which Mr. Beckwith made and which I sent you. He is anxious to get it, and wanted me to write you at once.”

On October 22, 1891, Simonds sent note to Fletcher as requested, and Fletcher replied on October 24th, as follows:

“Near Omar: I have received your letter of October 22d, with note for $1,077.96 for Andrew Borden, and I will deliver it to him. I do not see why you made it draw 8 per cent, interest, because I think he would have been willing to have let you have it at 7 per cent.”

On March 31, 1892, Fletcher wrote as follows:

“Near Omar: Since you sent me a note last summer to take up Borden’s old note, I have never met him in the office until this morning. You will remember that you sent me one bearing 8 per cent, interest, and that I asked you to send another bearing 7 per cent., as I thought he would be satisfied with that. ■ It seems that I kept them both. I now cancel and return them to you. Mr. Borden has figures from Mr. Beckwith showing much larger sum due than these notes call for, and I said to him that I would write to you and ask you to return me the computation which Beckwith made, and which I sent to you. I will keep it here, and when you come we will make a new note for him, and take the old one up. Please send the computation, and write me telling me when you are likely to be here, and what the news in Duluth is.-”

The computation was returned, and on April 30, 1892, Fletcher wrote to Simonds that “it was clear that Beck-with had made a mistake in his computation,” and sent data from which Simonds could make a computation, expressing the opinion that Borden’s computation was correct. He added:

“Borden wants a new note, and he suggests that he would be glad to have some cash to reduce the amount. He insists on the note drawing 8 per cent, interest.”

Fletcher also wrote the following:

“Sept. 15th, 1892.
“Dear Omar: Mr. Borden and his daughter came in here a few days ago, and asked me to write to you requesting a remittance of such amount as you could spare. I urged him to do the writing himself, but he seemed very anxious that the letter should go from me. I promised him to write immediately, but it slipped my mind, and I am now at least four or five days behind time.”
“Jan. 6th, 1894.
“Dear Omar: Rodney Sessions came in here this afternoon for Mrs. Borden, and said she seemed to be very much exercised about the interest on her note, and had been telling him that, if the interest was not paid promptly, she would demand the principal. I explained to him that the delay in forwarding the other notice to you was owing to neglect on my part. Mr. Sessions said that, if the interest was taken care of promptly, he would use his influence with her to have the principal remain as it is for a time. I wish you could send her some money at once.”
“Jan. 29th, 1894.
Dear Omar: I return the note for $1,000 of the Calumet Construction Company, dated November 23d, 1893, which I paid here on the 26th.
“I wrote a letter, and directed it to Chicago, warning you against Edward R. Gilman, and calling your attention to the fact that Mrs. Borden has received no remittance from you. Sessions came in today, and said that she was very angry about it, and was insisting on collecting the note in full, but through his persuasion she had been held off. He says that if a good remittance does not come at once she will not wait longer. You wrote me on the 9th of January that you would send a remittance in a few days.”

There is nothing in these letters that can be construed into a new promise to pay this note. It is perhaps infer-able (though not clear) that demands of payment and threats of suit were made of and against Fletcher, and that Fletcher, at the instance and request of Borden, in some instances, and "perhaps for his own protection, urged Simonds to pay the note, and sought to arrange for new paper, and in one instance said in a letter to Simonds, “We will make a new note for him, and take the old one up.”. If this could be given the force of a similar statement made in a letter to Borden, and it could be held sufficient to arrest the running of the statute even if it were written to him, — which we do not intend to intimate, —the letter seems to have been written more than six years before the claim was filed, and is for that reason ineffective. We have been unable to find just when Mr. Fletcher died, but it is stated in appellant’s brief that the last payment was made in 1899 (August 24th), and that Fletcher died afterwards, and promises made or letters written before August 24, 1893, would not, therefore, be effective to meet the defense; and this enables us to eliminate all of the letters except those of January 6 and January 29, 1894, so far as the question of payment is concerned, neither one of which contains the semblance of a promise, though the earlier expresses a wish that Simonds would make a payment at once. Payments were made a month or so later by Simonds, and it is perhaps not unreasonable to say that they were made at the request of Fletcher.

It seems to be conceded that payments were made as per the indorsements. The evidence is silent as to who paid the money over, though we understand it to be claimed that all was paid by Mr. Simonds after October 17, 1892, on which occasion a payment of $250 was received from or through Mr. Fletcher, according to the testimony of Mrs. Eby, and possibly that should be treated as a disputed fact if it were important. The only evidence that can be said to connect Fletcher with payments made within six years before Fletcher’s death consists of the last two letters. From them we may infer that the money was sent by Simonds to the creditor by reason of the threat contained in the latter letter, and the request of Fletcher as shown by the former. These two letters contain all the evidence of a new promise by Fletcher inferable from payments made within six years before the death of Fletcher, which occurred after August 24, 1899. They and they alone show the circumstances of the payments. Stated in its most favorable light for the plaintiff, was a payment by Simonds, induced by the request of Fletcher, one which the creditor had a right to treat as a payment made by Fletcher ?

The day has gone by when it can be held that a mere payment by one joint maker of a note can arrest the running of the statute as against another. Our statute (3 Comp. Laws, § 9745) has changed the common-law rule, and as was said in Mainzinger v. Mohr, 41 Mich. 687 (3 N. W. 184):

“A* payment under this statute is equivalent to a new promise; and, as one cannot make the express promise for the other, neither can he make for him the indirect.promise which a payment implies.”

It is only when authority is given to one to make a payment on behalf of another that such payment can bind a co-contractor of him who makes the payment. Where it can be said that the payment is the act of both, and the creditor has reason to so understand it from the fact that both principal and surety are present and participate in it, there being nothing to inform him that the money paid was not furnished in whole or in part by the surety, it has been held that the case must be looked at from the standpoint of the creditor, and in the light of the appearances as they were then presented to him. Such was the case of Mainzinger v. Mohr, supra, where it was said that:

“ The debtors came together [to the creditor’s place of business]; their sole business was the payment of interest on his demand; it was reckoned up, paid, and credited in the presence and with the apparent co-operation of both. Naturally, he would suppose that the money paid was the money of the one who, as between himself and his creditor, ought to pay it; but he was only concerned with the fact that what they did was by co-operative and conjoint act. He had, therefore, a right to understand that this was a mutual payment, and that the parties thereby mutually renewed their promise of payment. If Main-zinger, at the time, had in his own mind any purpose to consider and treat the transaction as being something different from what the appearances indicated, it was his duty to notify Mohr that Miller alone was making the payment, and Mohr tuould then have been put on his guard, and would have had only himself to blame if he had lost his remedy by subsequent delay.”

The present case is not so strong a case for the plaintiff as the one discussed. Fletcher did not go with Simonds to pay the money, and, so far as we can discern, there was nothing that would lead the creditor to believe that the money was furnished or paid by Fletcher. On the contrary, he knew that it was not. At his request Fletcher had written, urging Simonds to pay it. It was unnecessary for Fletcher to notify Borden that Simonds alone was paying the money lest he should, from the appearances, be led to believe the contrary, as in the Mainzinger Case, for the contrary was not only true, but it was apparent. It will be seen, therefore, that this case is not within the reasoning of the Mainzinger Case, unless we can say that a desire that Simonds should pay, and willingness to induce him to pay, an honest debt of his own, can be said to make Fletcher such a participant in the transaction as to justify the plaintiff in believing the payment to be one made by him. If we devest the question of the apparent hardship of allowing the Fletcher estate to avoid its obligation to pay by virtue of the statute, we shall find nothing to justify us in saying that this ought to be treated as a payment by Fletcher, which it clearly was not, or that Borden so understood it, which he clearly did not. The question of payment as a substitute for a written new promise is separate and distinct from an express promise, and, if it were not, there is no promise here, oral or written, which could have given any different color to this matter of payment, which is at most a payment by Simonds at the request of his surety, and was so understood.

We may next consider the second question: Did Mr. Fletcher acknowledge the debt in writing within six years of his decease, and within the meaning of the statute of limitations? 3 Comp. Laws, § 9740, provides:

“In actions founded upon contract, express or implied, no acknowledgment or promise shall be evidence of a continuing contract, whereby to take a case out of the provisions of this chapter, or to deprive any party of the benefit thereof, unless such acknowledgment or promise be made or contained by or in some writing, signed by the party to be charged thereby.”

The only writings signed by Fletcher within six years before his death are the two letters quoted, and we have no hesitation in saying that they do not contain an acknowledgment of a continuing obligation, under the authorities cited in the note to that section.

The third question arises upon the consent to an extension of the note. It was indorsed on the note, and signed by Fletcher, and to get any benefit from it the plaintiff must contend that it was a continuing consent to indulgence. This was dated in February, 1887, and was never renewed. On the contrary, Mr. Fletcher refused to extend the security longer by signing again, when asked to do so by the creditor’s agent. He said he had signed it once, and the note was just as good as though he signed it. This occurred about six years after the extension. Counsel for defendant insist that this was a contract for a legal and technical extension, whereby,, for a valuable consideration, the creditor, should give to the principal debtor, Simonds, a valid and definite enlargement of time, which should give him immunity from suit upon the note during the interval, and that it was a consent to but one such extension, and that such extension was never given. On the other hand, plaintiff’s counsel says that this language is susceptible of another meaning, viz., a consent to indulgence, and that, construed in the light of surrounding circumstances, it may be reasonably given that construction.

The testimony shows that the debt was due to a client of Fletcher, and it is reasonable to infer that he was reluctant to bring suit against him, and it is clear that he yielded to Fletcher’s request that he give Simonds time. It is manifest that he did not wish to release Fletcher, for he took the writing in 1887. This was a little over three years from the time the note became due. It was unnecessary at this time except upon the theory that Fletcher was a surety, and that it was the intention to give Simonds a valid extension of time that might release him. On the other hand, there is no evidence indicating a design to give such an extension, or that Fletcher sought for anything more than forbearance, which he was continually aiding Simonds to obtain; and, indeed, there is nothing but the consent itself that indicates that technical extension was ever asked, and there never was a time when the holder of the note was under contract obligations not to sue. When the subject came up between Sessions, acting for claimant, and Fletcher, neither party seems to have thought that it referred to technical extension merely. Sessions appears to have feared that the consent might soon become inoperative by the lapse of time, and Fletcher assured him that it was as good as though he signed it again. The court allowed testimony of Fletcher’s refusal to stand, and struck out the reason for such refusal infer-able from his language. We are of the opinion that this testimony was competent, as a circumstance which, with others, tended to show the light in which the parties at all times regarded this agreement, which was susceptible of two interpretations. It was followed by similar conduct, Fletcher asking and the holder granting forbearance for several years thereafter; and as late as March 31, 1892, he appears to have considered himself bound, for he then wrote to Simonds that they would give another note. Here was at least a question of fact whether the parties did not intend and understand the consent to relate to forbearance and successive indulgences as to all or a portion of the note, unless we must say that the written consent was so unequivocal in its terms as to preclude the idea of ambiguity.

The language used in this writing is not necessarily ambiguous, but, when taken in connection with the circumstances, is susceptible of a different construction from that which its language imports if taken in its technical sense; yet it is doubtful if the sense contended for by the claimant is not that which would be generally understood by persons outside of the profession of the law. See Columbus Sewer-Pipe Co. v. Ganser, 58 Mich. 391 (25 N. W. 377, 55 Am. Rep. 697); Moran v. Lezotte, 54 Mich. 83 (19 N. W. 757); Home Sav. Bank v. Hosie, 119 Mich. 125 (77 N. W. 625). Parol evidence is admissible to aid in arriving at the intention of parties in the use of equivocal words in a contract. The rule is stated in 2 Am. & Eng. Enc. Law (2d Ed.), p. 291, as follows:

“The true doctrine seems to be that, while direct evidence of intention is not admissible in explanation of ambiguous terms in a writing, yet proof of collateral facts and surrounding circumstances, existing when the instrument was made, may be properly admitted, in order that the court may be placed as nearly as possible in the situation of the testator, or contracting parties, as the case may be, with a view the better to adjudge in what sense the language of the instrument was intended to be used, and to apply it to the subject-matter.”

Among the cases supporting the rule permitting the interpretation of language, susceptible to two constructions, in the light of surrounding circumstances, is Facey v. Otis, 11 Mich. 213, where parol proof of such circumstances was resorted to, to determine whether the contract was made by one party for himself or as agent for another. The case of North American Fire-Ins. Co. v. Throop, 22 Mich. 146 (7 Am. Rep. 638), is another case where parol proof of surrounding circumstances was received to explain the sense in which equivocal language was used. In Waldron v. Waldron, 45 Mich. 350 (7 N. W. 894), the identity of land devised turned upon such evidence of surrounding circumstances; while in the case of Moran v. Lezotte, 54 Mich. 83 (19 N. W. 757), the words “running to the rear” were made to read “running towards the rear,” through the force of surrounding circumstances. See, also, Cook v. Brown, 62 Mich. 479 (29 N. W. 46, 4 Am. St. Rep. 870), and Home Sav. Bank v. Hosie, 119 Mich. 123 (77 N. W. 625). We have a number of cases which hold that it is competent to show that a name written upon the back of a note was placed there before uttering the note, thereby making one a joint maker who might otherwise be an indorser, and perhaps would be understood to be such from the writing unexplained. Rothschild v. Grix, 31 Mich. 150 (18 Am. Rep. 171); Herbage v. McEntee, 40 Mich. 337 (29 Am. Rep. 536); Greusel v. Hubbard, 51 Mich. 97 (16 N. W. 248, 47 Am. Rep. 549); Farwell v. Ensign, 66 Mich. 600 (33 N. W. 734); Sibley v. Bank, 41 Mich. 196 (1 N. W. 930). See, also, Eckford v. Berry, 87 Tex. 415 (28 S. W. 937). In Kendrick v. Beard, 81 Mich. 182 (45 N. W. 837), parol evidence was used to determine whether an instrument was intended as a mortgage or conditional sale. For cases permitting evidence of the acts of the parties under the contract as aids to construction, see 2 Am. & Eng. Enc. Law (2d Ed.), p. 293; Kendrick v. Beard, supra. Again, it is stated in 2 Am. & Eng. Enc. Law (2d Ed.), p. 303, that “parol evidence may be admitted where it appears from extrinsic evidence that there are two persons or objects or modes of performance corresponding to the terms of the contract;” and the doctrine is illustrated by cases cited in the note. See, also, Id. 297, 298.

We do not overlook the cases cited by defendant’s counsel. The case of Rochester Sav. Bank v. Chick, 64 N. H. 410 (13 Atl. 872), arose upon a consent quite similar to that in the case before us, except that it was a part of the note itself at the time the note was signed. The case was apparently barren of circumstances indicating any understanding beyond what the words themselves imported. We think the case distinguishable from this case. The case of Gray’s Ex’rs v. Brown, 22 Ala. 262, is also distinguishable. The other cases cited need not be discussed further than to say that if this consent was an agreement for indulgence, and the same was given in reliance upon it, a consideration for the consent cannot be said to be wanting.

We think the learned circuit judge erred in directing a vei’dict for the defendant.

The judgment is reversed, and a new trial ordered.

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