text:
    BALES v. EVANS.
    1. Evidence — Fraud—Trial—Issues.
    Although broad latitude may he permitted in the introduction of evidence in support of the charge of fraud, relating to matters that may throw light upon the question at issue, and an elastic discretion must necessarily he granted to the trial court in ruling upon the testimony offered, clearly incompetent or prejudicial testimony is no more permissible in this class of cases than in any other.
    2. Trial — Marriage—Argument—Conduct oe Counsel.
    In an action brought by a married woman for fraudulent . representations which induced her to purchase a hotel, counsel for plaintiff did not commit reversible misconduct in referring to the fact that her husband had children by a former marriage, during his opening of the case to the jury.
    3. Same — Incompetent Evidence — Witnesses.
    Nor did the trial court err in declining to strike out testimony of the defendant, volunteered during his cross-examination, that he had run a “blind pig” in the hotel about 18 years before the trial, as too remote and irrelevant and immaterial; the witness proving to he unruly and evasive and the court ruling that the testimony could only be considered as affecting the credibility of the witness.
    4. Same.
    It is the duty of the court to interfere, either upon objection being made or without waiting for objections, to. prevent counsel from browbeating, intimidating, or insulting any witness.
    5. Same — Witnesses—Privilege.
    Where a witness has declined to answer a question on the ground of privilege, the jury may well he cautioned that' they should not infer misconduct or criminality from the refusal, but should regard the same as failure of proof; counsel who argues to the jurors that the effect of such failure to answer amounts to an admission of guilt, commits reversible error.

      Error to Allegan; Cross, J.
    Submitted April 28, 1914.
    (Docket No. 150.)
    Decided October 2, 1914.
    Case by Elizabeth Bales against John Evans and another for fraud. Judgment for plaintiff. Defendants bring error.
    Reversed.

      Edward J. Anderson, for appellants.

      Clare E. Hoffman, for appellee.
   Steere, J.

This action on the case was brought in the circuit court of Allegan county to recover damages claimed to have been sustained by plaintiff through misrepresentations of defendants whereby she was fraudulently induced to enter into a contract for the purchase of their hotel.

Defendants, who are husband and wife, owned and conducted a small hotel called the Junction House, located near the Lake Shore Railroad Station, in the city of Allegan. On February 5, 1913, plaintiff and her husband arrived in said city on the evening train from the West and went to the Junction House for the night. They were strangers in the city and had come from their former home in Iowa with the intention of renting a farm in the vicinity of Allegan, led to make the move through correspondence with a man named Littlejohn. In casual conversation between the parties, defendants learned the mission of their guests, and the talk which followed resulted in the latter contracting to buy the hotel for $3',500 and plaintiff making a first payment of $300 on the purchase price. The negotiations took definite form the following day, which was Saturday, and on Monday, February 8, 1913, the contract was signed, followed by the payment of $300 by plaintiff. Plaintiff’s claim, briefly stated, was that defendants, having learned the circumstances and purpose which brought her and her husband to Allegan, and that they were unacquainted there, began systematically to discourage them from their project, telling them there were no advantageous opportunities to rent or buy land in that vicinity, and that Littlejohn was dishonest, relating cases of his having defrauded people in land matters, etc., thus frightening them from consulting him; that defendants then made it known they were contemplating selling their hotel, owing to their health and other plausible reasons, and Mrs. Evans finally proposed that plaintiff buy it; that during the negotiations which followed defendants represented and falsely stated, in such manner as to then convince plaintiff, that their house was the best hotel in Allegan, bore a good reputation, was patronized by commercial travelers and the best class of the traveling public, had been run in a respectable and moral manner, and enjoyed a steady and profitable patronage, yielding a regular income of from $5 to $10 per day; that by such representations, which they believed and upon which they relied, plaintiff and her husband were induced to enter into said contract, and she to make the first payment as stated, without consulting others, Mr. Evans requesting her not to tell any one they had sold out; that she shortly thereafter took possession, and soon discovered that the representations, which induced her and her husband, were false and fraudulently made; that the house in fact bore an unsavory reputation, had been conducted rather as a rooming and assignation house than a reputable hotel, had no regular patronage by the respectable traveling public; that the income was inadequate, and the business even as previously conducted had been unprofitable, and the people who had resorted to and patronized the place were not, as a rule, respectable or of good repute; that upon learning such facts plaintiff took an assignment of his interest in the contract from her husband, who had paid noth.ing upon the same, tendered an assignment of said contract and possession of the property to defendants, repudiated the agreement, and demanded back the money she paid, which was refused, whereupon she removed from the premises and began this action.

Defendants pleaded the general issue, denied any and all charges of misrepresentation, and claimed that the hotel had been conducted properly and profitably and bore a good reputation. The issue of misrepresentation and fraud thus raised was tried upon its merits before a jury, with abundance of bitterly conflicting testimony, and resulted in a verdict and judgment in plaintiff’s favor for $300 and interest.

Defendants’ 29 assignments of error relate to rulings of the court in admission and rejection of testimony, the charge of the court, refusal to charge as requested, the opening statement and argument to the jury by plaintiff’s counsel.

In the investigation of fraud it is said a' broad latitude may be permitted in the introduction of evidence upon matters which may throw light upon the question at issue, and an elastic discretion must necessarily be left to the trial court within such range in guiding the course of the proceedings and ruling upon the many varying questions which exigencies of the case present, but clearly incompetent and prejudicial testimony or argument are no more permissible in this class of cases than any other. Wessels v. Beeman, 87 Mich. 481 (49 N. W. 483).

A careful reading of this record forces the conviction that numerous unseemly and intemperate things were permitted in the course of the trial, which should have been suppressed, though most of them are, under the conditions shown, such as to be regarded of that incidental class within the discretionary power of the' court, with which appellate courts are loath to interfere except in distinct cases of abuse. Certain of defendants’ assignments of error are directed to such incidents, by which it is urged plaintiff’s counsel continually brought before the jury prejudicial matter foreign to the issue, and thereby deprived defendants of a fair and impartial trial. We are impressed that such an atmosphere surrounded the case, and that both sides contributed to it.

Defendants’ first assignment of error seriously urged arose from a portion of the opening statement of counsel, in which reference was made to children of plaintiff’s husband. He was proceeding to narrate that, a day • or two after the contract for the hotel was made, the husband went to Indiana after his children, to which counsel for defendants objected, and plaintiff’s counsel said, “We will withdraw the children, wipe them out, consider they never existed,” whereupon counsel for defendants said: “Trying to work a little sympathy on it. I object to it.” After some further discussion the court told plaintiff’s counsel to “Go ahead,” and the latter then said, “I didn’t care anything about it to begin with, but we don’t propose to be interrupted all the time on something which is not material to the case.” Having ruled it immaterial and stated he did not care anything special about it, counsel then, apparently because he did not “propose to be interrupted,” proceeded to relate how her husband borrowed money of plaintiff and went to Indiana for his children. It is now claimed in plaintiff’s brief that this was competent as bearing on the measure of damages; it being intended the children would become members of plaintiff’s family in the hotel, and shown that they did return with their father for that purpose. While the propriety of this byplay might well be questioned, we think that in any view of the transaction the mention of plaintiff’s stepchildren, who had no legal claim on her, would not be so prejudicial, standing alone, as to demand a reversal. It is not shown that they were previously members of her family. She came from Iowa, and they were to come from Indiana. She had not lived with her husband after giving up the hotel contract, and when counsel asked if their marital relations were broken, she answered: “That is none of your business.” The numerous cases cited by counsel in support of the contention that any reference to the children in a suit by the mother to recover damages for a tort to her is forbidden rest upon principles which have no application here, as an examination of the recent cases of Johnson v. Grondin, 170 Mich. 447 (136 N. W. 423), where previous decisions are reviewed, and Rauhala v. Maki, 172 Mich. 112 (137 N. W. 703), will disclose. In that class of cases the statute gives a separate right of action to the wife and children for the same wrong. To keep each distinct and preserve the rights of all in interest it is held that the case of the wife must be confined to her individual injuries, and the fact that she is the mother of children who might be dependent on her cannot be pressed upon the jury to swell her individual damages. The children mentioned here were not plaintiff’s and had no claim on her.

An assignment of error urged and argued by defendants arises from interrogation of defendant John Evans, on cross-examination, as to his having violated the liquor law. He was asked:

“Q. Never was arrested and convicted for selling hard drinks?
“A. I defy you or any other man to ever find out where I ever sold any hard drinks in that house. Eighteen years ago I sold hard drinks and was pinched for running a blind pig in the old building, and pleaded guilty. Since then I have run my house straight.”

His own counsel then moved to strike out this testimony, as to his being arrested, “on the ground that it is too remote, and as incompetent, irrelevant and immaterial.” The court denied the motion, stating, however, that it could only be considered as bearing on his credibility. We think this ruling was correct, and a wide range of inquiry particularly within the discretion of the court when such a witness is cross-examined. This witness was evasive, often irresponsive, reckless in declamation, and at times assumed to take charge and rule on the admission of evidence. He informed counsel who was cross-examining him:

“I don’t care a darn for a judgment. It will do me no more good than a yellow dog. * * * You have got the wrong pig by the ear to fool around with me. I tell you that right now.”

Interrogated as to certain alleged disorderly characters having stopped at his hotel, witness made impertinent personal retort with a wholly irrelevant assertion reflecting upon counsel. Being sharply questioned as to such volunteered assertion, he gave equivocal answers and finally admonished counsel to “never mind that.” He was then asked, “Tell me what you know about that and how you came to make that statement,” and answered, “That is far enough. Let us get down to business.” Counsel was disposed to pursue this inquiry, but witness declined to be interrogated further and foreclosed the subject as follows : “I won’t answer any more of those nonsensical questions.” Whatever might be said, and could with propriety have been done in that connection, the court committed no error in refusing to strike out the volunteered testimony of this defendant as to his having run a “blind pig.”

The right is inherent in the court to check and silence any witness or counsel who is going beyond reasonable and legitimate bounds in his method of testifying or examining, and “it is the plain duty of the court to interfere on objection, or without, when the attempt is made by counsel to browbeat, insult, or to intimidate witnesses.” 5 Jones’ Commentaries on Evidence (Ed. 1914), § 815.

A witness named Jennie Davis was called by plaintiff, and examined touching her resorting to this hotel, and the conduct of certain persons who put up there. She was manifestly a reluctant witness, and denied staying at the hotel with a man named Clark, in answer to one of the first questions asked her. Counsel then said:

“I want to inform you — you realize.you are under oath, do you? Do you realize that if you testify to an untruth here that you can be prosecuted for perjury?”

This witness was permitted to be rigidly cross-examined, by the counsel who called her, as to her conduct at the hotel and relations with men there. Her answers were sufficiently evasive, equivocal, and in denial that it was fairly within the discretion of the. court to allow proper leading questions to be asked, on the ground that she was a reluctant and hostile witness. It would have been proper for the court, in its discretion, in view of the attack made by counsel calling her, to inform her of the constitutional right of a witness to decline to answer incriminating questions. No suggestion to that effect was made by any one, and her examination was apparently concluded when she was first excused from the witness stand. Counsel for plaintiff thereafter called a witness named Emma Marks, whom he also examined by leading questions, and who in an evasive manner, with many contradictions, testified in substance that she had personal knowledge of a certain man staying a.t the hotel with a womah who was not his wife, and whom she could not or would not identify. Being asked on cross-examination by defendants’ counsel if she was not that woman, counsel for plaintiff interposed and said:

“Wait a minute. I ask that the witness be instructed that she don’t need to answer that question as to whether it was her or not.”

Being instructed by the court as to her right, the witness refused to answer, and when the subject was again approached in cross-examination, lest she forget, counsel would again interpose, “Wait a minute,” and suggest that she again be advised. Counsel for defendants argued to the, court that the witness, having disclosed part of the transaction, had waived her privilege, .and moved that she be directed to .answer, or, if not, that all her testimony relative to. the- unidentified woman be stricken out. These motions were both denied, and her refusals to answer, on suggestion of plaintiff’s counsel, stood. Following this, plaintiff’s counsel recalled Jennie Davis and asked:

“Q. I understand that you want to withdraw the answer to some questions that you made here before?”
“A. Yes, sir.”
“Q. Now, I will ask you whether or not you know of. any one man and woman occupying any of the rooms there at Evans’ hotel who were not married to each other?”

To which witness replied, “I refuse to answer.” In his closing argument to the jury one of the counsel for plaintiff commented upon this against objection, saying in part:

“Then when it was put up to her if she had ever stayed with another man, what does she say? T decline to answer,’ and the judge asks her if she claims her constitutional privilege, and she does. What is the constitutional privilege?”

Counsel for defendant interposed an objection to any inferences being argued to the jury from the witness claiming her constitutional right, and plaintiff’s counsel replied, “We will, though, unless the judge stops us.” A ruling being asked, this argument was allowed to continue and the changes were rung before the jury on the significance of “I refuse to answer.” This error alone, irrespective of other questions as to those witnesses, entitles defendants to a new trial. If any reference to the witness’ refusal to answer was made to the jury, it should have come from the court, with the caution that they could not infer misconduct or criminality on the part of a witness from such refusal to answer, but should regard it “as a failure of proof” as to such witness. People v. Brewer, 27 Mich. 134. Comment, or argument to the contrary by counsel to the jury, is prohibited. Carne v. Litchfield, 2 Mich. 340; Knowles v. People, 15 Mich. 408; Foster v. People, 18 Mich. 266; People v. Maunausau, 60 Mich. 15 (26 N. W. 797).

The judgment is reversed, and a new trial is granted.

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


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    SOMERS v. FERRIS.
    1. Deeds — Competency oe Grantor — Intoxication.
    Evidence tending to show that the grantor of certain real property was incapacitated by excessive use of intoxicants from entering into a valid contract of conveyance, considered as an issue of fact, and held, not sufficient to sustain a decree annulling the deeds.
    2. Same.
    A drunkard is held incompetent to execute a conveyance only upon proof that at the time of the act, his understanding was clouded or his reason dethroned by actual intoxication.
    3. Same — Inadequacy of Price — Equity.
    The court of equity will inquire into the inadequacy of price paid for land which was conveyed upwards of six years previously to the date of commencing suit, only so far as may be necessary to ascertain that the price paid was not so grossly inadequate as to shock the conscience and necessarily imply fraud.
    4. Same — Contracts—Laches.
    Where complainant knew the facts in relation to his claim that certain conveyances were made when he was incapacitated from executing a valid deed, within a year after he conveyed the real property, but he. took no steps to set aside the deeds within five years, during which time defendant expended large sums in clearing up the title and making improvements, the claim was barred by laches.
    Appeal from Missaukee; Lamb, J.
    Submitted April 21, 1914.
    (Docket No. 98.)
    Decided October 2, 1914.
    Bill by George Somers against Elbert C. Ferris and others for the cancellation of certain deeds. From a decree for complainant, defendants appeal.
    Reversed.

      Gaffney, Miltner & Millington, for complainant.

      Dan Youngs and Broomfield & Worcester, for defendant Ferris.
   Steere, J.

This suit was instituted to obtain cancellation of two • deeds executed by complainant, George Somers, purporting to convey to defendant Elbert C. Ferris 320 acres of land, located in Missaukee county, Mich. The grounds urged for such relief are want of consideration and fraud. Elbert C. Ferris is the active and chief defendant; the others named as defendants being his wife and certain parties holding mortgages on said land.

The bill of - complaint asks for an accounting, an injunction to restrain cutting and removing timber from the premises, and a decree declaring null and void two described deeds from complainant to defendant, one of 160 acres in section 18, town 24 north, of range .6 west, dated May 4, 1906, and the other of two 80-acre tracts in sections 6 and 8, of the same town and range, dated January 15, 1907.

The substance of complainant’s grievance, as stated in his bill, is that defendant Ferris contributed largely towards complainant developing into an habitual drunkard by furnishing and freely selling him intoxicating liquor, encouraging him to indulge his appetite for the same to excess, until his mind became weakened and his judgment impaired to the extent that he was easily misled and became a prey to any designing person; that when complainant had reached such condition, and while he was under the influence of liquor, Ferris, having previously obtained his confidence, fraudulently persuaded him to execute the conveyances in question for a grossly inadequate consideration.

At the time this suit was heard, complainant was 65 years of age. He had lived in Missaukee eounty for about 34 years, much of the time in Norwich township, where he first settled on emigrating to the county, with his wife, from his former home in Genesee county.' He was then recently married to a second wife, having' been divorced from the first. He stated that he then had practically no property and but $1.50 in money. He secured and settled upon some wild land, which he engaged in clearing and cultivating, and later bought and sold stock, some of which he butchered, selling the meat to lumber camps. He appears to have at first been industrious and thrifty. For some years he prospered to a degree and came to be recognized as a man of some standing in his community, having held school and township offices at various times. At the expiration of 19 or 20 years, he had developed a home farm of 80 acres, improved and mostly cleared, had accumulated some stock, teams, tools, etc., and secured, though not fully paid for, the 320 acres in question; but he had by that time also formed irregular habits, resulting in unsatisfactory domestic relations, and. about 15 years prior to commencement of this suit he separated from his wife, after a private adjustment and division of property interests. He conveyed to her their 80-acre home farm, upon which there was a mortgage of $700, and gave her some horses, cows, etc.; she releasing to him her dower interest in the remaining 320 acres, now in question. Thereafter he lived apart from his family, spending much of his time in a small village, not far away, named Stittsville, where he made his headquarters in a hotel with an auxiliary bar, run by a man named Dorrity. He had a house and some clearing on his 160-acre tract of land, which he called the Cole place, where he spent part of his time, at times did some farming, dealt in stock, teamed, and got out forest products. His intemperate habits became more pronounced as time went on, until, as he states, he spent half of his time at Stittsville “drinking whisky,” especially after defendant came there.

In the spring of 1905, Ferris bought the Stittsville hotel and saloon from Dorrity, with it acquiring the patronage, society, and good will of Somers. Ferris took out a liquor dealer’s license in May, 1905, and ran both the hotel and saloon business in his own name until May, 1906, when the license was taken for the ensuing year in the name of his son. The elder Ferris claimed to have sold the bar business to the latter, though he remained at and continued to run the hotel as before. There was apparently little change in the general management of the business as a whole, until October, 1906, when he leased the hotel to a man named Haynes and quit the business. During Ferris’ regency Somers is shown to have frequented the hotel bar and drank intoxicating liquors to excess, becoming more and more dissipated, often indulging in protracted sprees and becoming helplessly intoxicated. He made his headquarters and boarded much of the time at the hotel while defendant ran it, and was abundantly supplied with intoxicating liquors, by both the elder and younger Ferris, whether drunk or sober, though defendant and his son claim to have often refused him, when he was intoxicated and had “got enough.” Other testimony indicates that opinions of the critics waver as to how much was enough. He is shown to have frequently passed through all stages of intoxication at this saloon, his transition progressing unchecked from hilarious sociability and prodigal generosity, which temporarily attracted to him a following of loyal adherents, until it reached stupid drunkenness, to the entertainment and apparent envy of kindred spirits who were less successful in getting helplessly drunk, and who at that stage sometimes made him the victim of their coarse jokes. A neighboring farmer, named Hunt, was an associate and close rival in these excesses. Another neighbor, and acquaintance of 30 years’ standing, who states complainant had been a common drunkard for the past 10 or 12 years, and that his faculties were somewhat impaired thereby, though even in 1906 and 1907 he was above the average in mental capacity when sober, sums up the situation by the statement, “Whisky led these two men to deteriorating about as low or lower than any two men in the community.”

Four written instruments signed by Somers, which he claims were without adequate consideration and obtained by fraud at times when he was mentally incompetent, are involved in this controversy: The deed of the 160 acres dated May 4, 1906; an option for the sale of his land dated November 2, 1906; a renewal of said option dated January 4, 1907; and the deed of the two 80-acre tracts dated January 15, 1907. The important questions for consideration are his mental condition when he executed those instruments, for it is undisputed that when sober and in his right mind he was bright, capable in business matters, and abundantly able to protect his own interests in any such transaction.

In portions of his testimony Somers states in variant language that during the period these transactions took place, his intellect was so weakened and impaired by long and excessive indulgence in intoxicating liquor that he had no realizing sense of what he was doing, nor distinct recollection of what took place, describing his then condition as “just negative,” with his brain “ossified and congealed,” and his memory faded to a point where he was only willing to venture a “guess” that he was then “drinking whisky,” while in other portions of his testimony he discloses a keen recollection of the details of transactions he had either previously denied taking place at all or stated that he had no remembrance of them.

The deed of May 4, 1906, was, at the time of its execution, without consideration, having been given in furtherance of a scheme to perpetrate a fraud upon the township authorities. Ferris and Somers each testified that the other proposed the scheme. In the spring of 1906 Ferris found difficulty in getting acceptable bondsmen for his saloon business, and it was decided his son should apply for the license; he to qualify and act as his son’s bondsman. To enable him to qualify as such, Somers and a neighboring farmer, named Pittz, agreed to and did each deed Ferris 160 acres of land, and a man named Freeman 40 acres more, with the understanding Ferris would deed the property back to the real owners when the bonds were approved. Somers, Pittz and Ferris together drove over to Lake City, the county seat, where the deeds were prepared by and acknowledged before one of Somers’ counsel in this case. On that day Somers refused to take a drink at the hotel with Pittz, saying he had to attend to some business and was going to keep sober. The evidence is conclusive that he did keep sober and fully understood the nature and purpose of the transaction. . He testified on cross-examination that he knew what he was doing and executed the deed to Ferris so that he would have sufficient property in his name to qualify on his son’s liquor bond.

The next instrument in the order of events, signed by Somers, was an option to Ferris for 45 days, dated November 2, 1907, authorizing him to, within that time, find a purchaser or himself buy the 320 acres in question at a price of $1,950, with a 5 per cent, commission, whether he found a purchaser or bought it himself. Though Somers testified to the details of the transaction and said the option was read over to him at the time, he also stated that he could not remember whether he was drunk or sober when he signed it. It was prepared by an attorney named Gall, who, with a Mr. Heetebry, pastor of the Methodist Church at Stittsville, signed as a witness. Mr. Heetebry testified to witnessing the option; that he knew Somers well, was on friendly terms with him, had talked often with him both about religious and temporal affairs, had heard him say that he had made up his mind to sell his land in Missaukee county; that when the option was prepared the parties discussed it together and agreed on the terms; that Somers told Gall what to write, was “perfectly sober, had all his senses, and was in his right mind;” that he was a drinking man and drank often, but was bright, shrewd, and intelligent, and witness had known him to refuse to do any business while he was drinking. At this time Ferris had leased the hotel and quit the saloon business, and claimed Somers was then owing him near $1,100 for board, loans, bills paid for him, bar bills, etc. .

On January 2, 1907, Somers was convicted before a justice of the peace of using indecent language in the presence of his daughter-in-law and sentenced to the county jail for a term of 90 days. The option he gave Ferris expired without anything being accomplished under it, and on January 4, 1907, Mr. Gall, for Ferris, visited Somers at the jail, with permission of the sheriff, and procured a renewal of the option. Somers unites with the sheriff in admitting that he was then perfectly sober and. knew what he was signing and doing.

On January 8, 1907, Ferris visited Somers at the jail, with permission of the sheriff, whom he fully advised of his purpose, to obtain an adjustment or settlement of their accounts, and Somers, desiring to get some papers he had left at Stittsville before doing so, was allowed to go there for them in company with Ferris. They then went over their matters to. some extent, but do not altogether agree as to what occurred. As a result of what passed between- them, Somers signed a note to Ferris for $800, and agreed to sign a deed of the land he had given, an option for. Ferris claims his account, made up of various items for board at the hotel, care and board of horses, bills and notes paid for Somers, a bar bill, etc., amounted to $1,100, which was figured up and agreed to, except the bar bill, amounting to nearly $300, which Somers refused to pay, and that they .finally settled on a balance of $800, for which Somers signed a note. Somers denied that they reached any settlement at the jail, but admits that he signed the $800 note,' and on January 15, 1907, went, with permission of the sheriff, to the office of his attorneys of record in this case, who were then attorneys for Ferris, where matters were gone over, and he signed the deed of that date for the two 80-acre tracts. This is the second of the two deeds to set aside which this bill is filed six years later. It is undisputed, and Somers admits, that he was perfectly sober at the time he executed this deed; no deed was then given for the other 160 acres included in the option, because the attorney, who made out the papers, advised that it was not necessary, as Somers had already conveyed the title by his deed of May 4, 1906, and under their agreement it would stand as a sufficient conveyance.

We think it clearly shown that on January 15, 1907, when this deed was signed in the office of reputable counsel, who took Somers’ acknowledgment and now represent him, the accounts between these parties were all gone over, discussed, and settled, and the balance due Somers for the land, according to the price fixed in the option, paid into the hands of counsel for him. This money he admits was subsequently paid to and accepted by him. Somers testified that later some figures relating to the settlement were put down in his book in the attorneys’ office. This book was produced and put in evidence. Of it he said:

“I thought there was more money coming to me than there was, and I wanted a statement put upon my book, in figures, as the settlement was made. * * * Yes, sir; these are the figures we put on the book. Mr. Miltner made the figures. I think Mr. Ferris and myself were present when they were made. I was there; I am sure of that, * * * These figures follow the settlement, and whatever is down there in figures is just as I and Mr. Ferris settled. For example, I supposed the $197.79 for all taxes, that amount was to be taken out of the $1,950. It was for tax titles and taxes that Mr. Ferris was to pay, and the item of $364.05 was the item for the Torrey mortgage. Mr. Ferris was to pay that mortgage, and that amount was to be taken out of the $1,950, and I think the item of $226.50 was the amount of the Kelly mortgage. Mr. Ferris was to assume that, and that amount, was to be taken out of the $1,950. I think that note was $850. These figures were put down at my suggestion. I wanted Mr. Miltner to put down the figures just as the settlement was made, and he did that, and these figures represent the settlement just as it was made.”

Even eliminating all other evidence in the case, it is impossible, in the light of his own testimony, to regard as of any probative force complainant’s broad assertions in support of the allegations in his bill that at this time his brain was diseased, his mind gone; that he had no realization of what he was doing when he signed the $800 note and the deeds; that he then owed defendant nothing, and the instruments were without consideration. None of the witnesses in this case on either side, except Somers himself, testify that when sober he was mentally incompetent or incapable of intelligently transacting business during this period, and most of them testify • positively that when sober he was mentally competent, above the average farmer in shrewdness and business ability, and amply capable of understandingly transacting business. The testimony is conclusive that, when he executed these deeds, signed the option, and made this settlement, he was perfectly sober and fully understood what he was doing.

It is clearly shown that complainant had frequently drank to excess for several years, and that his excesses increased as he indulged his growing appetite for drink, until his business was almost totally neglected and he sank into a common drunkard. Though he sometimes patronized other saloons, the hotel bar at Stittsville was his favorite and habitual resort, not only while defendant ran it but before and after. That he was ruined by drink, morally and financially, is clearly shown, and as usual the barkeeper was his friend while his money lasted. That Ferris, while, in the business, and for profit, made him welcome, indulged and encouraged him in his dissipations, and in that way contributed to his downfall, is equally manifest. If the issue here was one of comparative moral depravity, the preponderance of evidence as between the two would not be in his favor, but, in a proceeding of this kind, the court is not at liberty to act as a guardian to conserve the property of those disposed to squander it in dissipation. The question is whether these instruments, executed according to legal formalities and acknowledged before reputable attorneys, should be set aside because they were not executed by Somers when he was sober, sane, and competent to transact business understandingly. If he was competent, a court cannot concern itself whether he drove a good or bad bargain, or what he did or had done with his money.

A drunkard is held incompetent to execute a conveyance only upon proof that, “at the time of the act, his understanding was clouded, or his reason dethroned, by actual intoxication.” Wright v. Fisher, 65 Mich. 275 (32 N. W. 605, 8 Am. St. Rep. 886).

Complainant’s claim of inadequacy of price as proof of fraud is not well established by a preponderance of evidence. It is shown that in the intervening years the property has increased in value, both with the general increase in the price of land in that section and by substantial improvements which have been made upon it; but as applied to its market value when the option was given on November 2, 1906, though some witnesses testify to higher values than Ferris paid, other apparently disinterested witnesses, neighboring farmers living in that vicinity, lumbermen and land dealers who had bought and sold such land in that locality, to some of whom complainant had offered part of this land for less, testified to a then fair market value, estimating it by the acre and otherwise, closely approximating the price stated in the option to Ferris.

Where the transaction was fully consummated years before, as here, the court will inquire no further into the adequacy of consideration than to ascertain if the price paid was so grossly inadequate as to shock the conscience and necessarily imply fraud. The evidence in this case does not establish that fact.

Complainant waited six years before electing to disaffirm the conveyances, and taking steps to have them set aside. Conceding the prejudicial significance of the fact that the settlement was obtained by Ferris, and the last steps taken in this transaction were when Somers was in jail serving a sentence for an offense committed while he was intoxicated, he was at least sober then and remained so until discharged the 2d of ,April thereafter. In excuse of his delay in bringing this suit, he testifies:

“Why, I had been drinking afterward, then finally began to realize what I had done and where my property had gone to, and then — I began to realize what had been done to me last summer some time. Yes, that was after I had stopped drinking and recovered my mental faculties to some extent.”

It was shown that shortly after his discharge from jail, on April 2, 1907, he deeded this land to his son-in-law, Leonard Courter, without the latter’s knowledge or consent, who, on being advised of the fact by one of Somers’ present counsel, and at his suggestion, gave a quitclaim deed of the same to Ferris. Of his motive in making this conveyance, Somers says:

“I deeded the land to Mr. Courter, my son-in-law, because I got to thinking it over and concluded that he had taken advantage of me, and I believe I gave him the $800 before that, too.”

When asked on cross-examination if “last summer” was the first time he concluded he had been taken advantage of, he answered:

“No, I had thought of it ever since I gave that quitclaim deed to Mr. Courter. Yes, I knew of it all the time; just exactly what I knew when I filed this bill. I guess so. * * * I knew from January 15, 1907, up 'to the time I filed this bill on the 6th of October, 1912, that I had deeded the lands to Mr. Ferris, and I knew he was in possession of the lands.”

No offer of restitution is shown to have been made in this case. Aside from the liquidation of his $800 note, which he disputes, complainant knew Ferris paid a mortgage upon the land of $364.05, together with taxes and tax titles approximating $400, and he received $309.16 in cash after he was released from jail, as well as seeing over $500 expended in improvements. upon the property. His act in quitclaiming to his son-in-law shortly after his deed to defendant Ferris, and his own admissions as to what he knew and thought, show a realizing sense at that time of all he claims now.

In Sanderson v. Adams, 133 Mich. 359 (94 N. W. 1063), where complainant sought to have set aside a conveyance made while in custody charged with the murder of her husband, terrorized by the situation and her mental capacity so impaired, as was claimed, that she was unable to act understandingly, and the conveyance therefore was not her free act and deed, this court said:

“On August 5, 1899, she was not in custody. * * * She * * * knew the fact (if fact it was) that that bargain was made when her state of mind deprived her of the capacity to make it. * * * If she had a right at this time to disaffirm the contract, she had a right to affirm it, and, when she accepted and appropriated its proceeds she made an election which for all time affirmed it.”

In Bumpus v. Bumpus, 59 Mich. 95 (26 N. W. 410), it is said:

“The general rule is, where fraud is charged, that it must be clearly proved as alleged, and is not to be lightly inferred, and the party affected by it must complain promptly when the facts come to his knowledge.”

The fact, if it was a fact, that complainant had been defrauded, induced to make this settlement and sign the instruments at a time when his state of mind deprived him of the capacity to do so understandingly, came to his knowledge in April, 1907, according to his own testimony, and continued to be to his knowledge until he filed this bill, without offer of restitution, in October, 1912.

We are impelled to the conclusion that complainant was perfectly sober and in his right mind when he signed the instruments attacked, and is also precluded by laches from at this time questioning them.

For the reasons stated, the decree of the lower court must be reversed, and complainant’s bill dismissed, with costs.

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


author: McAlvay, C. J.

text:
    LONGTON v. STEDMAN.
    1. Easement — Deeds—Construction.
    Where an easement was reserved by two deeds of conveyance, executed by the owner of an entire parcel to separate grantees, of adjoining portions of the land, about the same time, and where the right of way was used continuously by the grantees of both parcels for a numbers of years afterwards, the conveyances should be construed together to determine the intent of the grantors.

      2. Same — -Light and Air.
    Complainants’ predecessors in title reserved a right of way-eight feet wide off the north side of the parcel granted and subsequently acquired by complainants. In the same instrument it was stipulated that the grantors would not erect or permit to be erected any buildings on the land north of complainants’ parcel nearer than five feet to the line between the properties. Later the grantors conveyed the remaining parcel to defendants by mesne conveyances, in which the same right of way and building restriction was expressed. The 13-foot strip was used jointly for a right of way to reach a barn situated at the rear of the two parcels by the owners of both pieces for considerable time, and defendants finally constructed a building upon the land included in the building restriction. Held, that whether this restriction affecting the five-foot parcel was intended to preserve the right to light and air only or was intended to enable the complainants / to use it with the eight-foot strip, the court of equity will protect the rights of the complainants.
    3. Injunction — Equity-—Permanent Structure — Adequate Remedy at Law.
    An injunction .bill lies to restrain the erection of a permanent structure upon a right of way.

    4. Same — Damages.
    The fact that defendant’s damages in removing a portion of the building would be large and complainants’ loss or injury would be small, would not prevent the enforcement of the equitable remedy.
    5. Equity — Laches—Estoppel.
    No facts amounting to an estoppel or laches were presented by evidence showing that complainants had no knowledge that defendants were erecting a building on the easement, that as soon as they discovered the situation they demanded that it be removed, defendants having completed the structure in about two weeks.
    6. Same.
    Mere delay and acquiescence are insufficient to defeat an equitable remedy based on a strict right, unless the acquiescence or failure to act has continued so long as to defeat the right itself.

      7. Same — Acquiescence.
    Some act done upon the strength of delay or some right lost or claim relinquished is essential to estoppel arising from delay in enforcing a right.
    Appeal from Kalamazoo; Knappen, J.
    Submitted April 21, 1914.
    (Docket No. 99.)
    Decided October 2, 1914.
    Bill by William P. Longton and others against Henry H. Stedman and others for an injunction and other relief. From an order sustaining a demurrer to the bill of complaint, complainants appeal.
    Reversed.

      Charles L. Dibble, for complainants.

      Alfred S. Frost and D. O. French, for defendants.

         As to the right to mandatory injunction to compel removal of structure which encroaches on adjoining property, see note in 36 L. R. A. (N. S.) 402.

   McAlvay, C. J.

This is an appeal by complainants from an order sustaining a demurrer of defendants and dismissing the bill of complaint. The facts stated in the bill of complaint necessary to the understanding of the questions involved, and which for the purposes of this case are accepted as true, are as follows: Complainants, husband and wife, are Owners, as joint tenants, of part of a certain lot in the city of Kalamazoo, subject' to a right of way, described as lot No. 308 'of the original plat of the village (now city) of Kalamazoo, except the east 50 feet thereof, and also except 30 feet in width off the north side thereof, together with a certain easement, or right of way, over and upon the premises adjoining said lot upon the north. The dispute in this case arises with reference to this easement.

A plat of portions of the lot belonging to- these parties, showing the location of this easement, is given.

The 30 feet on the north side of said lot excepted from complainants’ deed is now owned by defendants. The easement runs east and west between the two properties. Both parties to this suit derived title to their respective parts of this lot through mesne conveyances from a common grantor. The only conveyances necessary to be mentioned are those which created the easement and right of way in controversy.

The portion of this lot now owned by complainants was conveyed by James Bauman and wife to Abraham Hanford, a grantor of complainants in the chain of title, by warranty deed on April 21, 1890, and is described as follows:

“Lot numbered 308 of the original plat of the village (now city) of Kalamazoo, as appears of record in the office of the register of deeds for the county of Kalamazoo, excepting and reserving from said description fifty (50) feet from and off the east end of said lot now owned by said first parties, and excepting also thirty (30) feet from and off the north side of said lot, together with a right of way eight (8) feet wide over the premises hereby conveyed, from the front to the rear of said lot just south of said thirty (30) feet. Said first parties also agree that they will not themselves, their heirs, executors, administrators, or assigns, erect or permit to be erected any building on the land next north of that herein conveyed nearer than five (5) feet of the north line of the premises hereby conveyed, but this shall not interfere with buildings already on the back end of said premises, but is only intended to refer to that portion of the aforesaid thirty (30) feet in front of said buildings and now vacant, together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining.”

The portion of said lot now owned and claimed by defendants was conveyed by warranty deed by said James Bauman and wife to defendants’ grantors in chain of title on July 14, 1890, and is described as follows:

“Beginning at the northwest corner of lot No. 308 of the original plat of the village (now city) of Kalamazoo, according to the recorded plat thereof in the office of the register of deeds for the county of Kalamazoo, Michigan, running thence east on the north line of said lot to a point fifty (50) feet from the east end of said lot; thence south thirty (30) feet to the north line of land heretofore sold to Hanford; thence west along the line of said Hanford’s land to the east line of Edwards street; thence north to the place of beginning. Also a right of way eight (8) feet wide from front to rear of said lot over the premises just south of the property herein conveyed (heretofore sold by said first parties to Hanford). Said right of way to be along the south line of the thirty (30) feet described herein. Provided said second parties, their heirs, administrators, or assigns, are not to erect any buildings on the front of said lot nearer than five (5) feet of the south line thereof.”

Complainants aver that this easement and right of way 13 feet wide between the premises of the parties to this suit was created by these conveyances in April, 1890, and used continuously thereafter as such “by the owners of both lots as a right of way to the barn situated upon the east side of both parcels of land hereinbefore described, which barn was used in common by the occupants of said parcels of land.” Complainant Anna Longton derived title to these premises as an heir and by deeds from all the other heirs of Marinus Ampersee, owner in the chain of title, who died August 20, 1898, in possession of the same, of whose estate Edwin J. Phelps was appointed administrator. At this time the north 30 feet of this lot heretofore described was owned and occupied by a laundry company, which, during November, 1898, and while the said estate was in the course of administration, fraudulently proceeded without notice, and without any knowledge on the part of the administrator or the heirs, to trespass upon and obstruct said right of way and reserved strip, and to erect a building thereon in great haste, and completed said building within a period of two weeks. This brick building was placed upon the south line of the north 30 feet of this lot, covering the entire 5 feet of this easement and right of way existing therein, thereby depriving complainants of, and ousting them from, all rights therein.

The bill of complaint shows that at this time complainants were residents of the State of New York, and had. no notice of any kind of the trespasses and wrongs committed and continued by the grantors of defendants. They aver that as soon as knowledge thereof came to them they immediately demanded the laundry company to remove said building, which demand was repeated, and that they have since repeatedly demanded that defendants and their grantors do the same, which requests and- demands have been refused, and are still refused.

Complainants aver that this easement and right of way extended from the street line of the lot on the west toward the east along the line dividing these properties, a distance of 80 feet, to the barn referred to, which for years had been jointly occupied by the owners of both parcels of this lot. These properties are situated in the heart of the business district of Kalamazoo. The ground owned by defendants is alleged to be of the value of $7,500, and that of complainants of the value of $10,000. The easement and right in controversy adds materially to the value of complainants’ property and to the variety of uses to which it can be put of more than $2,000. Briefly stated, the foregoing are the material facts set forth in the bill of complaint.

Complainants pray for a mandatory and permanent injunction that defendants be compelled and required to remove the building and obstruction to said right of way and easement, and for damages and general relief.'

The record shows that after defendants demurred . to the bill, and before a hearing was had, complainants asked and were permitted to amend the bill of complaint. Defendants then filed a second demurrer, which, upon the hearing, was overruled by the court and leave given to defendants to answer. About 30 days later the court, of its own motion, set aside the order overruling said demurrer, and entered an order sustaining the same and dismissing the bill of complaint. This is the order from which the appeal is taken by complainants. The demurrer to complainants’ amended bill states 18 reasons why it should be dismissed. Such of these as require consideration will be considered.

Defendants raise no question as to the easement established and reserved in the deed to complainants’ grantors over the north 8 feet of the land granted to them. They do deny that by the deed to their grantors any easement or right of way was granted to complainants and their grantors; that at most the restriction in that deed amounts merely to a building restriction. We have given the terms of the grant as set forth in the two conveyances which are relied upon to establish it. This lot No. 308 had been divided before any of the conveyances material to this cause were made. It appears from them that 50 feet off from the east end of the lot had been disposed of to other parties, and that the portion of the lot west of said 50 feet was the only portion embraced in any of these deeds. The deed to complainants conveyed all of that portion of the lot west of this 50 feet, except 30 feet on the north side, and contained the following reservation:

“A right of way 8 feet wide over the premises hereby conveyed from the front to the rear of said lot just south of said 30 feet.”

The deed then further recites:

“Said first parties also agree that they will not themselves, their heirs, executors, administrators, or assigns, erect or permit to be erected any building on the land next north of that herein conveyed nearer than 5 feet north of the north line of the premises hereby conveyed.”

In the deed to defendants’ grantor, which conveyed by metes and bounds, the north 30 feet of this lot was also included:

“A right of way 8 feet wide from front to rear of said lot over the premises just south of the property herein conveyed (heretofore sold by said parties to Hanford) said right of way to be along the south line of the 30 feet described herein.”

With the following condition:

“Provided said second parties, their heirs, administrators, or assigns, are not to erect any buildings on the front of said lot nearer than 5 feet of the south line thereof.”

These conveyances were made by the same grantors; the first in April, 1890, to complainants’ predecessors in title; the second in July, 1890, to those of defendants. It is claimed on the part of defendants that a right of way was reserved from complainants’ property, but that only a building restriction was created as to defendants’ property. These instruments should be construed together. It is clearly evident that it was the intention of the parties to both of them to create a right of way for the use of both grantees for the purpose of access by both to buildings in the rear of these premises. It remains to determine the extent and character of the easement. This may be found from the instruments themselves, from the practical construction given by these parties, and from the circumstances existing at the time.

The record shows that after these premises were conveyed to the respective parties occupying these descriptions of land they began and continued the joint use of this strip 13 feet wide for many years as a right of way to and from a barn which was situated 80 feet east of the street line, partly on each of these properties. There can be no dispute from the instruments themselves that a right of way 8 feet wide off from the north end of complainants’ land was reserved for the use of the owners of both properties. It is also clear in both instruments that it was agreed that the south 5 feet alongside and north of this right of way was not to be built upon, and was to be forever left open and free. These strips made an alley 13 feet in width, with a clear intention of a joint enjoyment by the owners of the entire width.

Whether the agreement relative to the 5 feet be called part of a right of way or a building restriction is immaterial. Each of these parties was and is entitled to the use and enjoyment of the entire way left open. If the 5-foot strip was for the purpose of granting complainants light and air only, it was set apart in both deeds for the benefit of complainants, and belongs to them. It is clear that the rights of these adjoining owners were in the contemplation of this grantor at the time of making these conveyances and their acceptance, and that these conveyances created in each a substantial right in the strip set apart from the land of the other, which neither could enjoy to the exclusion of the other. Added to this is the fact that both strips were used together by the grantors as a right of way. We cannot avoid the conclusion that the right sought by complainants to the use of this entire 13 feet in controversy created in them an easement and right which cannot lawfully be violated, and for the protection of which equity will grant relief. 5 Am. & Eng. Enc. Law (2d Ed.), pp. 9, 10, and cases cited.

It is contended by defendants that complainants have an adequate remedy at law. The violation of complainants’ rights by the erection of a permanent structure obstructing an easement and right of way created by deed will be relieved by injunction in a court of equity. Ives v. Edison, 124 Mich. 402 (83 N. W. 120, 50 L. R. A. 134, 83 Am. St. Rep. 329); Tolsma v. Scripps Corporation, 153 Mich. 14 (116 N. W. 622).

It is also claimed that complainants are not entitled to recovery, by reason of the great expense and inconvenience such recovery would entail in removing the side wall and 5 feet off of the end walls of this building and the comparatively small injury to complainants. The facts appear to be that this building was used when built as a laundry, and is now used as a livery stable; that it was built in two weeks, and is a one-story brick shell roofed over; that it has a wooden floor, with a small office partitioned off in the front part with a wooden partition. The fact that it would be of great expense to the defendants compared with the injury to complainants, therefore, does not appear aid is of no consequence, if it were true. The restrictions in the deeds have been violated. The amount of damages complainants have suffered is wholly immaterial. Such restrictions will be enforced. 3 Pomeroy’s Equity Jurisprudence (2d Ed.), § 1342.'

Defendants also contend that complainants have been guilty of laches, and further that the doctrine of estoppel applies, and that upon both grounds the bill was properly dismissed. It 'appears that complainants had no knowledge of the erection of this building which covers the 5-foot strip of land in ques-tion, until after it was completed; that as soon as they discovered it, and repeatedly afterwards, they asserted their rights and demanded the removal of the building from such strip. No denial is made of the knowledge of defendants of the restrictions in their deed, but they urge the bare lapse of time and acquiescence to defeat complainants’ • right.

Complainants seek an injunction in support of a strict legal right. The great weight of the authorities supports the doctrine that in such case mere delay and acquiescence will not defeat the remedy, .unless it has continued so long as to defeat the right itself. This rule has been announced by this court in several cases. McConnell v. Rathbun, 46 Mich. 303 (9 N. W. 426); Koopman v. Blodgett, 70 Mich. 610 (38 N. W. 649, 14 Am. St. Rep. 527); Davis v. Township of Frankenlust, 118 Mich. 494 (76 N. W. 1045). In these cases it appears that there were long delays after the cause of action arose, and this court held that the right of action was not barred by such delay.

Upon the question of estoppel there is nothing in the record to indicate that the delay in bringing suit was relied upon by the defendants or their grantors, or any act was done by them upon the strength of such delay, or that by reason thereof defendants will be compelled to surrender, forego, or alter what they or their grantors have done. These are essential elements to an estoppel, no one of which appears in the record in this case. The encroachment and trespass committed by defendants’ grantors in unlawfully building this building in spite of the restriction contained in their deed, and thus depriving complainants of the easement granted them in the five feet of land covered by the building was committed and the building completed without the knowledge or acquiescence of complainants, who from the time they became informed of the encroachment and obstruction erect- • ed by defendants’ grantors to the time of commencement of suit repeatedly insisted upon their rights both to defendants and their grantors and demanded the removal of such building. There was therefore no acquiescence upon which to base an estoppel.

Defendants have had' knowledge of complainants’ rights in the premises, and by reason of this delay have been put to no extra expense, and, in case of an adverse decision, will be put to no more annoyance and expense than they would had the suit been brought by complainants immediately after the building was erected. There is therefore no merit in the claim that complainants were estopped.

The order and decree of the circuit court sustaining the demurrer and dismissing complainants’ bill of complaint is reversed and set aside, with costs in favor of complainants, to be taxed.

A decree will be entered overruling such demurrer, with permission to the defendants to answer the bill of complaint within 15 days. The case will be remanded to the circuit court for further proceedings.

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


text:
    PRESTON v. PEOPLE’S SAVINGS BANK OF TRAVERSE CITY.
    1. Damages.' — Banks — Certified Check — Wrongful Detention —Interest.
    Where plaintiff sent to defendant a certified check for the purchase of defendant’s claims against an insolvent lumber corporation, and stated in writing that it was given on condition that a receiver’s sale of assets of the insolvent to plaintiff should be confirmed, plaintiff was entitled to the return of the check when the condition was not fulfilled, and, being required by the drawee to borrow enough money to cover the check, which defendant required to be paid, and being forced to pay interest on the loan during the time that the defendant wrongfully withheld the paper, the plaintiff should have been awarded a judgment for the loss so occasioned.
    2. Same — Good Paith — Evidence.
    Testimony of the plaintiff that the State banking commissioner directed the drawee bank to charge the certified check to the account of the plaintiff, and that he borrowed sufficient funds to cover the check, and was obliged to pay interest on the loan for nearly two years, after he demanded the return thereof, sufficiently proved the payment in good faith of the money, and warranted a judgment for plaintiff of that amount.
    Error to Grand Traverse; Mayne, J.
    Submitted April 17, 1914.
    (Docket No. 63.)
    Decided October 2, 1914.
    Assumpsit by Thad B. Preston against the People’s Savings Bank of Traverse City and others. Judgment for defendants. Plaintiff brings error.
    Reversed.

      Nichols, Shaw & Eldred (F. C. Miller. of counsel), fo'r appellant.

      Parm C. Gilbert, for appellee People’s Savings Bank.
   McAlvay, C. J.

From a judgment rendered against plaintiff on a trial before the court without a jury in an action of assumpsit to recover certain interest claimed to be due plaintiff on the amount of a certain conditional certified check given by him to defendant, plaintiff has removed the case to this court by writ of error, asking for a reversal.

Many of the facts surrounding this case were before this court in the consideration of the case of Preston v. National Bank of Ionia, 169 Mich. 571 (135 N. W. 278), which involved another certified check given by plaintiff to that bank at the same time as the check in the instant case was given and under the same circumstances. The following are the material facts in the case: A lumber company at Traverse City became insolvent in 1907, and a receiver was appointed, who qualified and entered upon the duties of his office. By order of the court he offered for sale the assets of the insolvent corporation for which plaintiff offered a bid of $66,906.78, April 1, 1909, and afterwards sent defendant the following letter:

“Traverse City, April 10, 1909.
“People’s Savings Bank,
“Traverse City, Mich.
“Gentlemen:
“I will pay you fifty cents cash on the dollar for your present claims against the South Side Lumber Co. Payment to be made when the title to said property under receiver’s sale is confirmed in me by the court.
“Yours, etc.,
“T. B. Preston,
“By George E. Nichols, His Attorney.”

Upon which defendant indorsed the following acceptance :

“Accepted, provided a certified check for the amount due under the offer is deposited with this bank within five days from this date with the understanding that in case you do not buy the property checks to be returned.
“People’s Savings Bank,
“By H. S. Hull, President.”

On April 14th following, plaintiff wrote defendant as follows:

“Ionia, Mich.; 4-14-09.
“People’s Savings Bank,
“Traverse City, Mich.
“Gentlemen:
“I am inclosing you herewith certified check for $7,000 which is to be held by you and not used until the sale * * * is confirmed by 'the court and papers properly executed and transfers made to me.
“This is in purchase of your claim vs. South Side Lumber Company, which amounts approximately to $14,000, and is subject to a revision of the amount whether it may be more or less than this amount— and if it be more, I am to pay you the additional amount, and if it be less, the amount is to be refunded to me. Please signify your acceptance of it and conditions covering it.
“Yours truly,
“T. B. Preston.
“Stenog 7.
“Inclosure.”
The check which was inclosed, reads:
“Ionia, Mich., 4-14-09.
“State Savings Bank:
“Pay to the order of T. B. Preston $7,000.00, seven thousand dollars.
“State Savings Bank Branch,
“Ionia, Mich.
“T. B. Preston.”

Indorsed upon the face of said check appeared the-following certification:

“Certified Apr. 14, 09. Good when properly indorsed.
“State Savings Bank, Ionia, Mich.,
“A. J. Hemingway, A. Cas.”

It was indorsed on the back by plaintiff:

“Pay to People’s Savings Bank, Traverse City, Mich., subject to terms of my letter of Apr. 14-09.
“T. B. Preston.”

Defendant promptly acknowledged receipt of the letter and check, as follows:

“T. B. Preston,
“Ionia, Mich.
“Dear Sir:
“This bank has received your letter of the 14th inst., inclosing certified check for $7,000 conditioned as stated in yours inclosing same.
“Very truly yours,
“M. O. Robinson, Cashier.”

Later, after the sale to plaintiff was not confirmed, he wrote defendant the following letter, demanding a return of the certified check:

“Ionia, Mich., 7-9-09.
“People’s Savings Bank,
“Traverse City, Mich.
“Gentlemen:
“On the 14th of April, 1909, I sent you certified check for $7,000 under the following conditions:
“To be held by you and not used until the sale of the entire property of the South Side Lumber Company was confirmed by the court, and the papers properly executed and transfer made to me. These conditions were in pursuance of an agreement made between us April 10, 1909, and this agreement was made in view of a bid I made for the properties and assets of the South Side Lumber Company of $66,906.78, of which you had knowledge. The property of said company was struck off to me the 28th day of May and the court confirmed the sale the 5th day of June, but before title was conveyed to me by the receiver, the court, on application of certain creditors, vacated the whole matter and ordered resale and of all these matters you had notice.^
“Therefore, by reason of the action of the court our negotiations are ended and the contract canceled and I therefore respectfully demand the return of the certified check inasmuch as the provisions under which it was delivered to you have not been met.
“Kindly let me hear from you at once and oblige.
“Yours truly,
“T. B. Preston.
“Stenog. No. 7.”

To which defendant replied as follows:

“July 14, 1909.
“T. B. Preston,
“Ionia, Mich.
“Dear Sir:
“This bank has received your letter of the 9th inst., relative to the South Side Lumber Co. deal and the same will be referred to the board of directors at an early meeting. I might say that our Mr. Hull will be home this week, as I am informed.
“Very truly yours,
“M. O. Robinson, Cashier.”

Defendant did not return the check, but held it until August 18, 1910, and then sent it forward for collection. Upon presentation payment was refused by the bank of issue. It was then protested and such protest indorsed on the check, as follows:

“Protested for nonpayment, August 18, 1910. M. M. McGeary, Notary Public.”

Defendant afterwards held this check without explanation or excuse until July 16,1912, when it was returned to plaintiff by letter stating that it was returned under advice. The record shows that at the time this check was given plaintiff was vice president, director, and a stockholder of this bank, and also that later he became its president. It appears from his testimony that the certified check was not charged up to his account at the time of its issue, and was not so charged until July 30, 1910, when this was done under the direction of the State banking commissioner, who came to Ionia in regard to the matter and required that it should be charged to plaintiff’s account. Plaintiff at that time borrowed $7,000, the amount of the certified check, on his individual note, bearing interest at the rate of 6 per cent., which amount was passed to his credit. This note was carried by him until April 27, 1912, and interest was paid thereon for that time. The sole question in this case is whether upon these facts the court should have rendered judgment in favor of plaintiff for interest.

The appellant contends that upon the undisputed facts in the case the court, as requested, should have entered a judgment in favor of plaintiff, either for interest on the amount of the certified check from the date demand was made by plaintiff for its return, as is shown by the letter to defendant, July 9, 1909, or from July 30, 1910, the date plaintiff was required to protect the certified check by making his account good by borrowing money from the bank for that amount when it was charged against him. The contention of defendant is that plaintiff and all of the officers of the bank were acquainted with all the facts, and that there was no need to borrow money and pay interest, for the reason that the conditions upon which the certified check was given were never complied with and, if required, a noninterest-bearing note or a bond could have been given by plaintiff to protect the bank. This contention is upon the theory that it was plaintiff’s duty to occasion the least damage possible to defendant.

It is admitted on the part of plaintiff that the requirements of the banking law were not followed at the time this check was certified by the bank of issue. The claim is made that the record does not show the facts stated relative to the action of the banking commissioner, and therefore it is not for the consideration of the court. This was the view taken by the trial court. The testimony of plaintiff in the case is undisputed, and is as stated herein. Plaintiff was present and testifies clearly as to what occurred.

Defendant paid no attention to the request by plaintiff made in writing on July 9, 1909, for the return of this check, although receipt of such request was acknowledged. Defendant unlawfully kept this check in its possession for more than three years, during a large part of which time plaintiff paid interest on the money borrowed at the rate of 6 per cent., as required by the bank. That this interest was paid is not disputed. Plaintiff paid it upon a written obligation so to do. The fact that he was a stockholder and an officer of the bank, and that the bank itself, through its officers, had knowledge of all the facts relative to the check is immaterial to this issue. The bank had a right to require the payment of interest upon borrowed money. The court was in error in not finding, as requested, that plaintiff had paid this interest in good faith. The court was also in error in not finding and entering a judgment for the plaintiff in this case.

The only question to be considered upon that proposition is what the amount of such judgment should have been. Plaintiff suffered no actual loss, which can be considered in measuring damages in this case, until July 30, 1910, when he gave his note for $7,000, with interest at the rate of 6 per cent., which he paid, until April 16, 1912, when the check was returned and he took up his note. This is a mere matter of computation and amounts to $721. This is the amount of plaintiff’s actual damages and the amount for which a judgment should have been entered in his favor in the court below.

The judgment of the circuit court is reversed, and the case will be remanded to the circuit court with directions to said court to enter a judgment in favor of plaintiff and against defendant for the above amount, together with costs of both courts to be taxed.

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


text:
    MICHIGAN TRUST CO. v. McNAMARA. In re McNAMARA.
    Contempts — Violating Injunction — Equity — Executors — Estates oe Decedents.
    Where a daughter of one of the heirs of a decedent attempted to interfere with the control of real property of the estate in the possession of the administrator, a trust company, which filed an injunction bill and secured a restraining order prohibiting respondent from trespassing upon the land or interfering with the tenants who leased the property from such administrator, and respondent thereafter claimed the right to ignore the injunction and tried to eject the persons occupying a portion of the land, of which the respondent claimed to have been in possession as agent of her father during a short period of time, the conviction of respondent for contempt of court was warranted, and a fine properly imposed, as the administrator claimed to have no knowledge of such alleged possession by respondent and she refused to recognize its authority or the jurisdiction of the court.
    Appeal from the superior court of Grand Rapids; Stuart, J.
    Submitted April 20, 1914.
    (Docket No. 77.)
    Decided October 2, 1914.
    Bridget McNamara was convicted of contempt of court and she appeals.
    Affirmed.

      Bridget McNamara, in pro. per.

      Thomas P. Bradfield (Kleinhans, Knappen & Uhl, of counsel), for appellee.
   McAlvay, C. J.

This is an appeal from an order of conviction and sentence for contempt of court imposed upon defendant at the instance of complainant by the superior court of Grand Rapids. Complainant filed its bill of complaint in that court against defendant, showing that it was and had been for more than a year theretofore in possession and control of certain land in the city of Grand Rapids as administrator of the estate of Mary McNamara, deceased, and that defendant, without any right, was interfering with such possession and control in various ways, and prayed for an injunction against defendant restraining her from trespassing upon said land or in any way interfering with it and with complainant’s possession and control of the same. On the same day an injunction was issued in accordance with the prayer of the bill of complaint and a copy of the same was duly served upon defendant and return was made into court by a deputy sheriff of Kent county. After-wards, complainant filed its petition in said cause, supported by affidavits showing that defendant had violated said injunction, and asking that an order issue to defendant to show cause why she should not be punished for contempt for such violation. The order to show cause was issued and duly served upon defendant. Other proceedings, not necessary to be stated in detail, followed in due course, which included an attachment against defendant, an answer by defendant to the order to show cause, interrogatories filed by complainant for defendant to answer, and defendant’s answers to such interrogatories. A hearing of the matter was had before the court upon affidavits and testimony taken in open court, which resulted in the conviction and sentence of defendant, determining that she was not at the time of the service of the injunction on her, or at any time, in lawful possession, or in possession in any manner, either by her attorney, or otherwise, of the land described in said injunction, and that she had committed the acts of misconduct and contempt charged and alleged. The judgment and sentence concludes as follows:

“It is ordered and adjudged, and the court now here doth, hereby order and adjudge, that the said defendant, Bridget McNamara, is guilty of the said misconduct and contempt charged and alleged, and that the said misconduct and contempt was calculated to and did injure, impair, and prejudice the rights and equities of the complainant in this cause, and that a fine of $10 be imposed on the said defendant, Bridget McNamara, for her said misconduct and contempt, and that she, the said Bridget McNamara, stand committed to the common jail of the county of Kent, there to remain charged with such contempt until the said fine be fully paid and satisfied, provided that such commitment shall not exceed 10 days.”

This is the order and sentence from which defendant has appealed. No question as to remedy is presented. We, therefore, express no opinion upon that question.

In two early cases this court considered and determined contempts for violation of injunctions upon appeals from such orders. Romeyn v. Caplis, 17 Mich. 449; Wilcox Silver Plate Co. v. Schimmel, 59 Mich. 524 (26 N. W. 692). This conviction and judgment was based upon the findings and opinion of the court, which, for the purpose of a better understanding of the dispute in the case, is included in this opinion, as follows:

“The bill in this case was filed August 2, 1909, by the Michigan Trust Company, administrator of the estate of Mary McNamara, deceased, duly approved by the probate court for the county of Kent, to restrain the defendant from interfering with the complainant’s possession of certain vacant lands comprising a portion of the estate of Mary McNamara, deceased, located near John Ball Park in the city of Grand Rapids. The bill asks that she be restrained from interfering with or annoying any of the tenants or lessees of the complainant, and from in any way interfering with the complainant’s possession of the land or in any way trespassing upon the land, or in any way interfering with the land and from leasing or attempting to lease said land, and from interfering with said land in any way whatsoever. The bill was sworn to and supported by an affidavit of a third party who was a tenant of the complainant and whose booth or refreshment stand upon said land had been partially demolished by the defendant.
“The vacant property belonging to the estate at one time consisted of about 40 acres, but June 28, 1908, or thereabouts, that part of the property lying west of Valley avenue, consisting of about 30 acres, was sold to the city of Grand Eapids by the complainant under the order of the probate court of Kent county.
“The Michigan Trust Company became special administrator of the estate of Mary McNamara about October 26, 1905, and since that time, either as special administrator or administrator, has had possession and control of the real estate above referred to. Until the portion west of Valley avenue was sold to the city in June, 1908, they rented the entire 40 acres from time to time to such circuses and other out-of-door entertainments as visited this city. The complainant knew nothing about any claim by the defendant to the possession or right of possession of said property until the day the bill of complaint was filed, when the defendant ordered one of the tenants of the complainant off of the land and threw down and demolished his partially erected booth.
“Upon the filing of the bill setting up these and other facts, the court issued an injunction restraining the defendant as requested by the bill, and the injunction was served on the defendant on the same day, viz., August 2, 1908. After being served with the subpoena, a copy of the bill and the injunction, the defendant apparently took no notice whatever of the injunction, but, if anything, became more active in her endeavor to oust the tenants of the complainant, and openly ridiculed the authority of this court to the sheriff of this court who served the injunction. When these matters were brought to the attention of the court, by affidavit, an order was issued requiring the defendant to show cause why she should not be punished for contempt, and this order, with the petition and affidavits upon which the order to show cause was based were served by the sheriff upon the defendant. The order required her to appear in court at 9:30 o’clock in the morning of August 3d. The defendant did not appear as required by the order to show cause. In fact the sheriff informed me that she stated when he served the order that she would attend to the injunction when she got good and ready, and that she was a British subject.
“After the time for her appearance in court had expired, it being apparent from her statements to the sheriff and her conduct that she did not intend to appear, I issued an attachment or warrant ordering the sheriff to bring the defendant before the court at 3 o’clock that afternoon, viz., August 3, 1909. When defendant appeared in court in the custody of the sheriff on the afternoon of August 3, 1909, she was not at that time represented by counsel, and I asked her whether she desired to retain an attorney. She stated her attorney was in Chicago, and she would have to send word to him; that she did not desire to employ any attorney in this city. I explained to her at some length her rights and duties and suggested that she get an attorney and prepare her answer to the order to show cause. She said she was a British subject, and that the court had no right to interfere with her. I explained that if the injunction was improperly issued I would be glad to set it aside and modify it as soon as she could show me it would be set aside, and I suggested an adjournment until she could prepare her answer. I asked her to promise to remain away from the property and not create any more disturbances there in the meantime. She positively refused to agree to remain away from the.property. I told her I disliked very much to remand a woman to jail, and I tried to persuade her to promise to remain away temporarily at least. She replied she would take the jail. She asked that the matter be held open until her Chicago attorney could be present and I granted this permission.
“Two days later, the defendant having remained in jail in the meantime, on the 5th day of August, the defendant filed an answer to the order to show cause, and appeared by Ellis & Ellis of Grand Rapids at that time. This answer admitted the violation of the injunction, but claimed possession of the land by the defendant, and that on that account the defendant was not required to obey the injunction. As a result of this hearing, I stated that I was willing, if either parties desired it, to go on with the matter and grant time for the filing of interrogatories, but I suggested that defendant had punished herself enough, and if no further disturbance was intended or committed, I was willing to let the matter rest, pending the filing of an answer and a hearing on the merits of the main case. At the same time, I explained to the defendant that she must not consider because she had been leniently dealt with that she could ignore the injunction and told her the injunction must be obeyed, or she must take steps to have it set aside in an orderly, regular way.
“No answer was filed by the defendant to the bill of complaint, and I was informed by the solicitor for the complainant that the defendant had left the State, and that he and the defendant’s solicitors, Ellis & Ellis, had agreed, since no further trouble seemed probable, to let the contempt matter drop.
“No disturbances that were brought to the attention of the court occurred in the year 1910, but on June 14, 1911, the complainant again applied for an order to show cause why the defendant should not be punished for contempt because they were having trouble on account of booth and refreshment stand privileges for the Barnum & Bailey circus, which was to give two performances on June 15th, on the part of the land sold to the city and across the street from the part retained by the estate. An order to show cause was issued on June 14th, returnable forthwith, but this order was not served until the 31st day of July, 1911, at 6:30 o’clock in the forenoon. The sheriff who served the order personally informed the court of the manner in which the defendant received the order to sho\v cause, and, it appearing to the court from the report of the sheriff that the defendant was wilfully refusing to appear and did not intend to appear and show cause, and it appearing from affidavits that she was wilfully violating the order of the court, I ordered her again brought before the court at 3 o’clock in the afternoon. When brought before the court on the 31st day of July, she asked that the matter be held open until Friday, August 4th, until her Chicago attorney could prepare her defense, and when she appeared in court on August 4th, on the order to show cause, she asked that the matter be continued until August 9th. Both of these requests were granted. She was remanded on July 31st, to the custody of the sheriff unless she furnish a bond in the sum of $1,000 for her appearance. The bond was not furnished; she stating she preferred to go to jail.
“Still another adjournment was granted at the 'request of the defendant. Finally, on August 14th, again by Ellis & Ellis of this city she filed a motion to quash the attachment, and the matter was argued on August 14th, by counsel for both parties. The motion to quash the attachment was denied on August 16th. An order was also entered on August 16th, releasing her from custody and extending the time to show cause until August 19th. On the 19th, defendant’s answer to the order to show cause was filed, and on the 23d interrogatories were filed. On the 31st day of August, 1911, answers to the interrogatories were filed. The substance of her answer was that she, as attorney in fact for her father, one of the heirs of Mary McNamara, deceased, was in possession of the property at the time the injunction was served upon her, and therefore she was not required to obey an injunction or even notice it in any way.
“The wilful violation of the injunction alleged and set up in the affidavits filed by the complainant were admitted in the answer of the defendant, and in her answers to the interrogatories filed, and she denied that the trust company had any right in, or any possession of, the land. Time was given to the complainant to file counter affidavits to the answers of the defendant to the interrogatories. These were filed on September 22, 1911, and on November 2, 1911, the defendant filed further affidavits in her defense to the order to show cause. She has not appeared generally in the case by attorney or demanded a copy of the bill of complaint or answered the bill of complaint.
“On January 23, 1912, I made an order setting the contempt matter for argument on January 27th. On January 27th both parties appeared and the matter was fully argued and submitted. At this hearing certain files of the United States Circuit Court were offered in evidence, also an affidavit by Bridget McNamara stating that she never had a power of attorney of any kind from her father, James McNamara, in regard to the estate of Mary McNamara,. deceased. The substance of her defense seems to be that occasionally after the death of Mary McNamara, deceased, she induced certain persons to occupy a few square feet of this land, for a day or two at a time, as her tenants. Even if this is true, this occupancy was entirely unknown to the complainant, the Michigan Trust Company, and never, until the time the bill of complaint was filed, interfered in any way with their occupancy and possession or enjoyment of the land. It was not such a possession or occupancy by the defendant, even if it existed, as would entitle her to ignore the injunction of this court.
“ * * * I am of the opinion that the defendant is guilty of contempt of this court and violating the injunction of this court, and I so hold, and that she should be punished for such violation. In determining the fine I again take into consideration, just as I did at the time of the first violation in 1909, the fact «that she had already remained in the custody of the sheriff a number of days, also the facts that I am informed that she has now left the State and no longer makes any claim as attorney in fact for her father, or otherwise, and therefore further violation is improbable. I am of the opinion that defendant should pay a fine of $10, and in default thereof that she be confined in the county jail until such fine is paid, and not to exceed 10 days.”

All of the proceedings, as well as the evidence in the case, is returned in the record. . The record sustains the conclusions of the learned judge.

The order of conviction and sentence is affirmed, with costs. The case will be remanded to the superior court of Grand Rapids for further proceedings.

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