author: Grant, J. Montgomery, C. J.

text:
    DUDLEY v. GATES.
    Probate Courts — Jurisdiction —Wills — Revocation— Expert Evidence.

      1. Courts of probate are not empowered to construe wills when presented for probate.
    2. A will, expressly revoking former wills, is held effective as a revocation, although the principal bequest of the later one is void.
    3. Where the opinion of a medical expert is based upon a hypothetical question, it is proper to instruct the jury that if the assumed facts, or any of them, are not true, the opinion must be rejected by the jury.
    Error to Wayne; Hosmer, J.
    Submitted April 10, 1900;
    decided June 5, 1900.
    Rehearing granted December 11, 1900;
    reargued February 13, 1901;
    final opinion, in affirmance of the earlier one, July 10, 1901.
    Sarah M. Dudley presented for probate the last will and testament of Helen E. Gibson, deceased. ..The will was disallowed, and proponent appealed to the circuit court. From a judgment for proponent, Jasper C. Gates and Lulu F. Gates, legatees under a former will, bring error.
    Affirmed.
    This is a contest over the probate of the will of Helen E. Gibson, deceased, executed July 16, 1898. The contestants are legatees under a prior will executed by the deceased March 1, 1895. The last will revokes all former wills, provides for the defraying of the expenses of the interment of the testatrix, and then bequeaths all her estate, real, and personal, to the proponent, Sarah M. Dudley, “to be used as she may deem prudent and proper, for starting up, if enough remains, a little home for aged men and women who are deemed worthy, and, should there not be sufficient remaining for above purpose as stated, they then to become the property of the said Mrs. Sarah Marie Dudley.” Mrs. Gibson died January 19, 1899. The contestants attack the will upon three grounds:
    1. That it is void because of the indefiniteness of its provisions.
    2. That the testatrix was mentally incompetent to execute it.
    3. That it was obtained by fraud and undue influence.
    Upon appeal to the circuit court, the jury sustained the validity of the will.

      T. E. Tarsney and W. G. Fitzpatrick, for appellants.

      George F. Robison, Walter Barlow, and James A. Robison, for appellee.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). Courts of probate have only such jurisdiction as is conferred by statute. Const, art. 6, § 13. They are not empowered to construe wills when presented for probate. The sole question, then, is, Did the testatrix execute the will? Parties in interest may appear and contest it on the ground that it was not properly executed, or was obtained through undue influence, or was forged, or that the testatrix was incompetent. If it is admitted to probate, its construction is a matter for after consideration. If its provisions are of doubtful meaning, either the executor, legatee, or heir should apply to a court of chancery for their construction. Byrne v. Hume, 84 Mich. 185, 191 (47 N. W. 679). This has been the universal practice in this State, and is also the rule in other courts. 1 Woerner, Adm’n, § 222; Hawes v. Humphrey, 9 Pick. 350, 361 (20 Am. Dec. 481); In re John’s Will, 30 Or. 494 (47 Pac. 341, 36 L. R. A. 242); Hegarty’s Appeal, 75 Pa. St. 503. After the estate is settled and is before the probate court for distribution, it must be distributed according to the terms of the will, which is the sole guide for the court in its order of distribution. The probate court then has jurisdiction to interpret the various provisions of the will, but not otherwise. Glover v. Reid, 80 Mich. 228 (45 N. W. 91); Byrne v. Hume, supra. The construction of this will was not, therefore, before the court. Two of its provisions were certainly valid, viz., the payment of the expenses of her interment, and the revocation of the former will. It was also lawful for her to devise her property to Mrs. Dudley without condition, or upon the condition that it was insufficient for the charitable bequest. After the will is probated, the executrix, or the heirs, if any, or the State, if there be no heirs, can enter the proper suit to construe the will. All the important questions now raised will then be before the court for determination.

Should the charitable bequest be held void for indefiniteness or other reason, still the will, being properly executed by a competent person, must be held to revoke the former will by its express provision to that effect. Powell thus states the rule:

“If the latter will contain an express revocation of the former, it is immaterial whether the latter be or be not inconsistent with the former, or whether it operate as a will at all or not.” Pow. Dev. 516.

This is cited with approval in Smith v. McChesney, 15 N. J. Eq. 359.

The question is discussed at some length in Pickens v. Davis, 134 Mass. 252 (45 Am. Rep. 322), in which the court say:

“Since the enactment of the English statute of wills (Stat. 7 Wm. IV. and 1 Viet. c. 26, § 22), the decisions in all the courts have been uniform that after the execution of a subsequent will which contained an express revocation, or which, by reason of inconsistent provisions, amounted to an implied revocation, of a former will, such former will would not be revived by the cancellation or destruction of the later one.”

Where a will was lost or destroyed, and its contents (other than the revocatory clause) could not be proved so that it could be allowed and executed as a will, held to be effectual as a revocation of the former will. In re Cunningham, 38 Minn. 169 (36 N. W. 269, 8 Am. St. Rep. 650). It is there said: ‘ ‘ Such a revocation is in general effectual, although the will cannot otherwise be executed.” The same rule was held in Wallis v. Wallis, 114 Mass. 510. Where a codicil revoked valid bequests, and bequeathed them to a void charity, held, that the revocation took effect. Tupper v. Tupper, 1 Kay & J. 665; Baker v. Story, (N. S.) 31 Law T. 631. In Scott v. Fink, 45 Mich. 241 (7 N. W. 799 ), it was held that a will is not revived by the destruction of a subsequent will when the latter will had contained a clause revoking the former will. In Stevens v. Hope, 52 Mich. 65 (17 N. W. 698), it was held that, when a will has once been expressly revoked by a later one, nothing can be claimed under it, though the later has been destroyed. See, also, Cheever v. North, 106 Mich. 390 (64 N. W. 455, 37 L. R. A. 561, 58 Am. St. Rep. 499).

Counsel for' contestants cite Laughton v. Atkins, 1 Pick. 542; Reid v. Borland, 14 Mass. 208; Rudy v. Ulrich, 69 Pa. St. 177 (8 Am. Rep. 238); and In re Goods of Fraser, (N. S.) 21 Law T. 680,—in support of their contention. In Laughton v. Atkins and in Rudy v. Ulrich the wills were denied probate because obtained through undue influence. In Reid v. Borland the instrument presented as a will was held void because not executed in accordance with the statute. The instruments in these cases were held void in toto, and therefore not admissible for any purpose. Incompetency or undue influence vitiates the revocatory clause as well as the other provisions. They have no application to cases like the present, where there was no undue influence. The testatrix was competent, and the intention to divert her property from the devisees by a former will is plain. Those cases would apply if the present will were held void for incompetency or undue influence, or because not lawfully executed, and the other will were before the court for probate, and a contestant should offer this one as evidence of a revocation of the other. In Re Goods of Fraser, the testator had written across the will, “This will was canceled this day in the presence of Dr. Robert Fraser, Esq., physician, and Margaret Rielly, nurse,” and was witnessed by them. The motion before the court was that this memorandum be included in the grant of administration to the widow. The opinion cites the English statute as to revocation of wills, and then says:

“The statute draws a distinction between ‘wills and codicils’ and ‘some writing.’ I am clearly of opinion that this is some writing declaring an intention to revoke a previous will, and, being only a writing of that character, it cannot be called a will. It disposes of nothing; it throws no light on the testamentary intentions of the deceased; it does not declare an intestácy. It simply revokes one particular paper. The application, therefore, must be refused.”

The opinion cites In re Goods of Hicks, 38 Law J. Prob. 65, in which a similar memorandum was written upon a will. In that case Lord Penzance said:

“The language of the statute, therefore, implies that a will may be revoked either by a subsequent will, or by a codicil executed as a will, or by something which is neither a will nor a codicil, namely, ‘ some writing declaring an intention to revoke’ the will. I had serious doubts whether this paper ought not to be looked upon merely as ‘some writing,’ and consequently neither a will nor q codicil, so as properly to be made the subject of a probate or administration with the will annexed.”

He then cites the case of Brenchley v. Still, 2 Rob. Ecc. 162, and stated the proper course was “to allow the grant to go with the paper annexed.”

Counsel in Re Goods of Fraser also cited In re Goods of Hubbard, 35 Law J. Prob. 27. In that case, at the foot of a deed, was written, “I do add unto my will this codicil, hereby revoking any other codicil or codicils heretofore made by me. I constitute and appoint my said son A. G. [a trustee under the deed] my sole and only trustee and administrator under my said will.” It was held (1) that the deed was not entitled to probate as a will; (2) that, as there was no will, A. G. was not executor; (3) that, as the codicil revoked other codicils, administration with it annexed should be granted to the next of kin.

I am unable to see that these cases support the contestants’ claim.

The testimony as to competency and undue influence was in sharp conflict, and both questions were properly submitted to the jury. In reply to special questions, the jury found that Mrs. Gibson executed the will; that she had sufficient mental capacity; and that she was not under the undue influence, restraint, or duress of any one.

It remains to consider whether there was error committed upon the trial. Two expert witnesses were placed upon the stand by the contestants, and a hypothetical question put to each of them, covering seven pages of the record, and containing a statement of the facts as claimed by the contestants. Based upon these facts, the witnesses testified that, in their opinion, she was incompetent to comprehend the will. Each of the witnesses stated that his opinion was based upon the assumption that the statements made in the question were facts. The court instructed the jury upon this testimony as follows:

“In order to make their opinions as to the mental incapacity of the testatrix to make such will competent evidence in the case, all the facts assumed and stated in the hypothetical questions put to them must be proved as true, and if the facts assumed as stated in such questions, or any portion of them, are not proven true, then the opinions of those two expert witnesses as to the mental incapacity of the testatrix to make the will in question are of no value as evidence in this case, and must be rejected by the jury. I think, gentlemen of the jury, that that is a proper request. You will remember that Dr. Emerson and Dr. Inglis were not eyewitnesses as to the condition of Mrs. Gibson in the month of July, 1898. Now, if you believe that the several facts which are embodied in those hypothetical questions are true, then I think you are justified in giving importance to the testimony of the physicians; but, of course, if you do not find that those facts are true, or if you find that any of those facts are untrue, then, inasmuch as the testimony of those witnesses is confessedly based upon the facts which are assumed in the question at least, then, under those circumstances, of course, their evidence would become valueless; but it is for you to say, of course, being the judges of what the actual facts were, what credit shall be given to their testimony, if you find the facts to be true.”

The opinions of the experts were evidently based upon the supposed facts set forth in the question, and the instruction limited the jury to the opinions based upon the question. If counsel desired their opinion upon a portion of those facts, they should have propounded a question which included them and excluded the others. We think the instruction was correct. Rice v. Rice, 50 Mich. 454 (15 N. W. 545); Kempsey v. McGinniss, 21 Mich. 123.

We find nothing in the remarks of counsel to justify a reversal of the case.

We find no error upon the record. The judgment is affirmed.

The other Justices concurred.

on rehearing.

Montgomery, C. J.

This case was decided at the June term, 1900, and is reported above. A rehearing has been granted, and we have been favored with full briefs and able arguments by counsel.

It is strenuously insisted that the court was in error in determining that, on the probate of a will, it is not the duty of the court to construe the terms of the will. Upon full consideration, we are thoroughly convinced that the former opinion correctly states the general rule. In 1 Woerner, Adm’n, § 222, it is said:

“A court of probate determines only whether the instrument propounded has been executed by the testator and attested by the witnesses in the manner prescribed by the statute, and that he possessed sufficient testamentary capacity, — in other words, whether the instrument is the testator’s spontaneous act, expressing his last will in the form recognized by law. Its approval of the will relates only to the form. Void bequests are not validated thereby, nor should the probate distinguish between valid and void,certain and uncertain, rational or impossible, dispositions of the testator. All such questions are for the courts of construction, which are bound by the judgments of courts of probate only as to the due execution.”

In addition to the cases cited in our former opinion, this holding is supported by Cox v. Cox, 101 Mo. 168 (13 S. W. 1055), and the cases cited in 1 Woerner, Adm’n, § 228, * p. 502, note 4. See, also, Hawes v. Humphrey, 9 Pick. 350 (20 Am. Dec. 481). It is true, as stated in our former opinion, that the probate court, upon the distribution of the estate, may construe the will for certain purposes; but, as was said by Campbell, C. J., in Frazer v. Wayne Circuit Judge, 39 Mich. 198, the question to be determined upon the probate of a will is the question of will or no will.

But it is contended that there may be cases in which, as bearing upon the other issues in the case, it is necessary in the probate of a will for the court in some measure to construe the will. This was not denied in the former opinion, nor was it denied the contestants in this case by the trial judge. The court in effect charged the jury that the provision relating to the establishment of a home for aged men and women was, in part at least, void in law, but declined to charge that this would invalidate the whole will; and in this we think he committed no error. If, as a matter of fact, the estate left was insufficient to establish a home for aged men and women, the proponent would take under the will, irrespective of the question of the validity of the trust. We can add little to what was said in our former opinion upon this subject.

It was strenuously insisted on the argument that the court was in error in his instructions upon the question of burden of proof. It seems to be conceded that the court in the first instance correctly stated the rule. He said to the jury, referring to the preparation of this will by proponent’s husband, that:

“ The law looks upon that matter with a degree of suspicion, and I think we all of us would naturally regard it with a degree of suspicion; and the degree of suspicion with which it is to be regarded, no doubt, gentlemen, is for you to determine, and not for the court, as the weight of all evidence belongs to you, and not to the court. But, under the law, gentlemen, it is sufficient to change what we call the burden of proof, and make it, under those circumstances, incumbent upon the party who offers the will for probate to satisfy you of the honesty of the purpose of the party, of the action of the parties, and to satisfy you that it was not procured by undue influence.”

Further on in his charge the court said:

' ‘ Much stress is alwaj-s laid by counsel upon the burden of proof. I think, to a considerable extent, it is more or less of a bugbear, because it only means this: That, if the testimony is exactly balanced in your minds, — you cannot say there is more evidence upon one side of the proposition than upon the other, — ■ * * * the case shall be given against the party who has to sustain the burden of proof. In my own individual experience, I have yet to see a case in which I could find, in my own mind, that the testimony was exactly balanced.”

The court, however, concludes his instructions upon this subject as follows:

“By the burden of proof we mean that evidence which satisfies you of the very right of the one party or of the other; and if Mrs. Dudley, in this case, has satisfied you of .the right of her position, then she has sustained the burden of proof with reference to undue influence. If you believe from her testimony that it was honest .and fair, and expressed the will and desire of Helen E. Gibson, then she has sustained the burden of proof. Unless she has done this, she has not sustained the burden of proof, I think, and under those circumstances the will would be void as having been procured by undue influence.”

We do not think that this charge, taken as a whole, could have misled the jury. They were correctly told that the circumstance that the will was drawn by proponent’s husband was a circumstance which raised a suspicion; and they could not have heard this charge without understanding that it was the duty of the proponent to remove this suspicion by evidence.

The other questions discussed on the rehearing have had full consideration, but we are not disposed to depart from our former holding, and the judgment will stand affirmed.

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


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    DETROIT CITIZENS’ STREET-RAILWAY CO. v. CITY OF DETROIT.
    Lis Pendens — Street - Railway Franchise — Bona Fide Purchaser.
    The right to maintain and operate a street railway in the public street is an interest in land; and therefore, under 1 Comp. Laws 1897, § 441, requiring a notice of lis pendens to be filed for record in order to render the filing of a bill in equity constructive notice to a purchaser of “real estate,” where no such notice of a bill to enjoin the exercise of the right was filed, a purchaser pending the litigation, who had no actual notice, was not bound by the decree.
    Appeal from Wayne; Waite, J.
    Submitted April 13, 1900.
    Decided June 5, 1900.
    Bill by the Detroit Citizens’ Street-Bailway Company, the Detroit Suburban Bailway Company, and the Union Trust Company against the city of Detroit for an injunction, and to remove a cloud from title. From a decree for complainants, defendant appeals.
    Affirmed.

      Brennan, Donnelly & Van De Mark, for complainant railway companies.

      Russel & Campbell, for complainant trust company.

      C. D. Joslyn, for defendant.
   Hooker, J.

On May 7, 1891, the township of Hamtramck, through its township board, granted to Henry Plass, Emil Stroh, and others, and their associates and assigns, consent, permission, and authority to lay, corn struct, maintain, and operate a single or double track railway along and through the Gratiot road, the same to-be in operation by the 1st day of January, 1892. The grantees accepted the same, and promised to build said road, by an instrument in writing. On May 13,1891, the territorial limits of the city of Detroit were extended so as to include that portion of the Gratiot-avenue road covered by said grant, and on December 10, 1891, the grantees notified the board of public works of the city of Detroit of their rights under said contract, and that they had been assigned to the Gratiot-Avenue Railway Company. Upon receiving notice of the intention of the Gratiot-A venue Company to build said railway, the city filed a bill in the Wayne circuit court in chancery, alleging that the grant from the township was void, and that the city had not granted any authority for the construction of said railway, and praying an injunction to restrain the building thereof. On December 21, 1891, the attorney general, on relation of Hazen S. Pingree, filed a similar bill. These bills were dismissed by decree dated June 28, 1892. The company built the road, and operated it until November 1, 1892, when it was purchased by the Detroit Suburban Railway Company, together with all franchises of the company. On the same day the Detroit Suburban Railway Company mortgaged its property, including this line, to secure bonds amounting to $400,000, payable in 10 years, of which bonds $275,000 are outstanding and unpaid. On the same day it leased all of its lines to the Detroit Citizens’ Street Railway for 10 years, and that company has since operated them under said lease.

The complainants appealed the two suits mentioned, and on February 18, 1893, counsel for the complainants asked that the cases be heard; whereupon the defendant’s counsel offered to consent to a decree for all that the bills prayed, and a decree was entered in each case vacating and setting aside the franchise granted by the township of Hamtramck. This occurred several months after the defendant in those suits, viz., the Gratiot-Avenue Railway, had parted with its interest in said railway to the Suburban-Company. No steps have since been taken to restrain the building or operation of said road against any of the companies connected with the transaction, and the Citizens’ Company has expended large sums-in putting down new rails and changing the road to an electric equipment.

It having been determined by the board of public works to pave the street, it took bids; one bid being for paving the full width of the street, the other for the width of the street less the space required for double tracks. A contract was made on the basis of these bids, leaving it optional with the board to have it paved the full width or excluding the required space for tracks. Thereupon the Detroit Citizens’. Street-Railway Company, the Detroit Suburban Railway Company, and the Union Trust Company, representing the bondholders, filed the bill in this cause to restrain the city from tearing up the tracks and preventing the operation of the railway, and to remove the cloud from the complainants’ title, created by the decrees heretofore mentioned. It alleges a denial by the city of any rights upon the part of the complainants to maintain and operate said road, and a threat to remove it, and pave the entire width of the street, unless the complainants consent to put down a double track, and pave between the rails, upon said street, without any recognition of complainants’ rights in the street; and avers that complainants are ready and willing to pave the street to the extent required of them, provided the city will recognize and affirm complainants’ rights in the property and franchises aforesaid. The answer denies that the facts show a valid franchise to construct and operate a road within the city of Detroit for 30 years. It denies that the Gratiot-Avenue Railway acquired any vested right to operate a railway within the city of Detroit. It admits the decrees, states that the complainants were privy to them and had knowledge of them, and denies that it has consented or acquiesced in complainants’ occupancy. It avers a right to pave, and to require the railway to conform to its requirements, and upon its refusal claims the right on the part of the city to grade and pave without regard to the tracks, and that complainants have not a right .to attach a condition to their compliance with the municipal regulations about paving, and prevent the paving of said street until the defendant shall comply with such condition. A decree was rendered for the complainants, and the city has appealed.

Considering the bill one whose primary object is to remove the alleged cloud upon complainants’ title, we need not concern ourselves about the injunction until that question is decided, because, if complainants have no title, — i. e., no valid easement in the highway, — they have no right to an injunction. The road was constructed pending the previous litigation, which plainly raised the question whether the alleged franchise attempted to be obtained from the township of Hamtramck was effective to convey any right beyond a revocable license in the highway. The city commenced said litigation very soon after receiving notification, apparently upon a bona fide claim that the alleged franchise was invalid. The case was contested in the circuit court, and the city was defeated. Upon the hearing in this court, counsel for the city insisted upon presenting the case and having it disposed of upon the merits; but, as counsel for defendant withdrew opposition, and in open court consented to a decree as prayed in the bill of complaint, the court declined to hear counsel, and entered the decree. We see no ground upon which we can say that this was not a decree upon the merits, binding upon all parties to the record and their privies. None of the present complainants were parties, but, in the absence of a statute affecting the question, we should not doubt that the decree was binding upon all of these complainants; but we think that 1 Comp. Laws 1897, § 441, is applicable. The complainants claim an interest in tbe street in the nature of an easement or servitude. It is based upon action by the township of Hamtramck, and, as no direct attack is made upon the validity of such action, and no defect pointed out either in the testimony or briefs, we must assume it to have been effective to convey to the Gratiot-Avenue Railway Company, and through it to the complainants, the right to maintain and operate a street railway upon this street according to its terms. This was an interest in land. See Post v. Pearsall, 22 Wend. 425; Tinicum Fishing Co. v. Carter, 61 Pa. St. 21 (100 Am. Dec. 597); Cadwalader v. Bailey, 17 R. I. 495 (23 Atl. 20, 14 L. R. A. 300); Goodrich v. Burbank, 12 Allen, 459 (90 Am. Dec. 161); Mayor, etc., of Knoxville v. Africa, 23 C. C. A. 252, 77 Fed. 501; Nellis v. Munson, 108 N. Y. 453 (15 N. E. 739); Pinkum v. City of Eau Claire, 81 Wis. 301 (51 N. W. 550); Huff v. McCauley, 53 Pa. St. 206 (91 Am. Dec. 203); Oswald v. Wolf, 126 Ill. 542 (19 N. E. 28); Tinker v. Forbes, 136 Ill. 221 (26 N. E. 503); Waggeman v. Village of North Peoria, 160 Ill. 277 (43 N. E. 347); Story v. Railroad Co., 90 N. Y. 122 (43 Am. Rep. 146); Hall v. Turner, 110 N. C. 292 (14 S. E. 791); Willoughby v. Lawrence, 116 Ill. 11 (4 N. E. 356, 56 Am. Rep. 758); Rascher v. Railway Co., 90 Mich. 415 (51 N. W. 463, 30 Am. St. Rep. 447); Laethem v. Railway Co., 100 Mich. 297 (58 N. W. 996); 2 Comp. Laws 1897, §§ 6446-6449; In re Citizens’ Pass. Ry. Co., 2 Pittsb. R. 10; Craig v. Railroad Co., 39 N. Y. 404. There is nothing upon the face of the record to show that they, or any of them, had actual notice of the pending proceedings at the time their interests were acquired; and, while we may think it improbable that they were ignorant of so notorious a fact as the litigation referred to, we cannot assume that they had notice, in the absence of proof. If they had, it would seem that the same might have been easily proved. In the absence of any attempt to do so, we must assume that .such proof could not be made. The statute (1 Comp. Laws 1897, § 441) requires the filing for record of a notice of the pendency of suit to render the filing of a bill constructive notice of the proceedings to any purchaser of real estate, thus practically abolishing the doctrine of lis pendens as to real property. See 2 Black, Judgm. § 550; 1 Freem. Judgm. §§ 191, 193, 198, 212.

We are of the opinion, therefore,-that the complainants are not bound by the decrees mentioned, and that they are entitled to have the cloud caused by such decrees removed, and their right to maintain and operate said road under the proceedings taken by the township of Hamtramck decreed, but subject to supervision and regulation by the city of Detroit in accordance with law. It will be decreed (in substantial conformity to the decree appealed from) that:

“The Detroit Citizens’ Street-Railway Company,and the Detroit Suburban Railway Company are entitled to continue to operate and maintain the railway on Gratiot avenue, between Sheridan avenue and the easterly limits of the city of Detroit, under the rights granted by the township board of the township of Hamtramck, as set forth in the bill of complaint in this cause.

“That the city of-Detroit, its officers and agents, be, and they are hereby, enjoined from interfering in any way with the maintenance and operation of said railway, particularly under any contracts for paving said Gratiot avenue which may have been made by the said city of Detroit: Provided, however, that said city may require the relaying and paving of said railway tracks contemporaneously with the paving of said street, but to be so relaid in the center thereof, so as to conform to the grade of said street when the same is repaved, in accordance with the terms of the paving and other ordinances of said city: And provided further, that this decree shall not interfere with nor limit the city in its general control over the maintenance and operation of said railway not inconsistent with the rights granted by said township of Hamtramck.

“That the said complainants recover of the defendant their costs to be taxed, and that they have execution therefor.”

The other Justices concurred.


author: Moore, J.

text:
    BOYER v. GRAND RAPIDS FIRE-INSURANCE CO.
    1. Fire Insurance — Violation of Conditions —Storing of Ex plosives.
    A provision, in a fire policy-declaring the policy void if gasoline be kept, used, or allowed on the premises insured, applies where a small quantity of gasoline is temporarily stored on the premises, for use in a gasoline stove in' a room having no direct connection therewith.
    2. Same — Description of Premises.
    A fire policy insuring property in a “three-story building,” describing it, “situated at No. 72 E. street,” covers a one-story addition just back of the three-story building, connecting with it, and for a long time previously used and occupied with it as No. 72 E. street, so that the unauthorized storing of explosives in the addition will invalidate the policy.
    3. Same — Scope of Statute — Title—Limiting Provisions.
    Section 3 of Act No. 167, Pub Acts 1897 (2 Comp. Laws 1897, § 5182), which provides for the insertion in fire-insurance policies, after the clause enumerating the conditions a breach of which shall render the policy void, of a proviso that such conditions shall be operative only in case a loss shall occur while a breach thereof continues, or such breach is the primary or contributory cause of loss, is not unconstitutional as an unauthorized limitation upon the scope of the act as expressed in its title, viz , “An act to prevent the forfeiture of fire-insurance policies by the violation of any condition of the policy when such violation has been without prejudice to the insurer.”
    Error to Kent; Grove, J.
    Submitted April 13, 1900.
    Decided June 5, 1900.

      Assumpsit by Peter Boyer against the Grand Rapids Fire-Insurance Company on a policy of insurance. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Peter Doran (M. Brown, of counsel), for appellant.

      Champlin & Stone, for appellee.
   Moore, J.

Prior to January 18, 1899, plaintiff owned a stock of goods in the city of Grand Rapids, upon which the defendant had a $1,000 policy of insurance, “the loss, if any, payable to George H: Reeder, trustee, as his interest may appear.” The plaintiff desired to remove the stock to Holland, and the following indorsement was made upon the policy:

“Permission is hereby granted to remove the insured property to the three-story, composition roof, brick building, occupied as a boot and shoe store, and situated at No. 73 East Eighth street, in the city of Holland, Mich. Insurance to cease at the former and attach at the latter location from twelve o’clock noon on the 18th day of January, 1899.”

The goods were at once removed to this location. The portion of the store in the three-story building was about 30 feet by 50 feet. Just back of this portion of the store was a one-story building about 30 feet by 30 feet, both portions having been used for many years together as one store. Both portions of the building were rented by plaintiff for one rental price. In the partition was a large opening where there had been a door, and also an opening Where there had been a window. Both portions of the building were occupied by the plaintiff, though the major portion of his goods was kept in the front portion. He had a rough door hung in the doorway, which fastened from the inside with a string. There was nothing in the opening made for a window.

The policy of insurance, among other conditions, contained the following:

‘ ‘ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, * * * . or if the hazard be increased by any means within the control or knowledge of the insured, * * * or if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used, or allowed on the above-described premises benzine, benzole, dynamite, ether, fireworks, gasoline, Greek fire, gunpowder exceeding twenty-five pounds in quantity, naphtha, nitroglycerin or other explosives, phosphorus, or petroleum, or any of its products of greater inflammability than kerosene oil of the United States standard (which last may be° used for lights, and kept for sale according to law, but in quantities not exceeding five barrels, provided it be drawn and lamps filled by daylight, or at a distance not less than ten feet from artificial light): * * * Provided, a loss shall occur in the property insured while such breach of condition continues, or such breach of condition is the primary or contributory cause of the loss.”

The policy contained no agreement indorsed thereon or added thereto varying in any respect the printed conditions as above set forth.

It is the claim of plaintiff that in March he and his clerk, Mr. Mensching, hired a room over the store, where they intended to live, and to get their own breakfasts over a gasoline stove; that he ordered a gasoline stove, which was to be delivered to him soon thereafter, and, for the purpose of supplying this stove with fuel, he bought a gallon of gasoline, which was put in a one-gallon can, and for the purpose of lighting the store he bought five gallons of kerosene oil. The oil and gasoline were delivered to him on Monday, and placed by him in the rear portion of the store. Prior to Monday, Mr. Mensching entered into other employment, and Mrs. Stewart was hired to take his place in the store. She worked on Monday and Tuesday. It is the claim of the plaintiff' that on Monday noon, when his clerk was gone to dinner, he used about one quart of the gasoline to remove some spots from the clothing which he wore. On Tuesday evening Mr. Boyer gave a key to the store to Mrs. Stewart, and told her she would have to open the store in the morning, as he was going to Grand Rapids that evening, and would not return in time to open the store in the morning.. About 11 o’clock at night the store was discovered to be on fire. About the time the fire was discovered, one of the front windows was thrown forward into the street as by an explosion. This was quickly followed by an explosion which threw the other front window into the street. The fire was then burning in the front portion of the store with great intensity. The firemen soon arrived, and quickly extinguished the blaze. The goods in the front portion of the store were so badly injured as to constitute a total loss. The goods in the rear portion of the building were not injured by the fire, and there was but little fire in that portion of the building. The firemen entered the rear portion of the building from the rear. They found the oil and gasoline cans near the middle of the rear portion of the building. The oil can was about half full of oil. The gasoline can was empty. The cover to the gasoline can, which screwed on, was gone, and it was claimed it was later found in the front end of the store, under a pile of partly-burned goods. Mr. Boyer did not go to Grand Rapids as he expected; he says because he was not feeling well, and because he thought Mrs. Stewart might have trouble in opening up the store; and he denied that he had any knowledge of the fire, or of what caused it, until the morning after the fire. The insurance company refused to pay the insurance, claiming that the conditions of the policy had been violated by allowing gasoline upon the premises without the written consent of the company, and also claiming the plaintiff was responsible for the burning of the building.

Upon the trial, after all the testimony was in, the circuit judge directed the jury to render a verdict for the defendant, upon the theory that the policy was void because plaintiff violated its conditions by allowing gasoline upon the premises. It is claimed by plaintiff that “forfeitures are not favored in the law; that, to enforce the condition in the policy in suit, it is the duty of the defendant to show some substantial violation of the condition; it must not only show a viplation, but it must show a violation of the very words of the condition,' and, as before stated, such violation must be substantial, and not merely technical, fictitious, or imaginary,”—citing Bates v. Benefit Ass’n, 51 Mich. 587 (17 N. W. 67). It is said that having gasoline in the back portion of the building temporarily was not such a violation of the conditions of the policy as to make it void; citing Hynds v. Insurance Co., 11 N. Y. 554; Williams v. Insurance Co., 54 N. Y. 569 (13 Am. Rep. 620); Smith v. Insurance Co., 107 Mich. 270 (65 N. W. 236, 30 L. R. A. 368); and other cases.

■ It is insisted the last-named case should decide this one in favor of plaintiff. We cannot agree with counsel in that contention. In the last-named case the gasoline was in the building for the purpose of being used by the painters when they were making ordinary and usual repairs to the building by painting it where it needed painting. The court discussed the questions involved at length, citing many authorities, and held, in substance, that the making of ordinary repairs, in a reasonable way, even though it increased the risk while the work was going on, and even though an article was used in the work the use of which in the business carried on in the building was prohibited by the policy, would not avoid the policy; that if the use of naphtha at the time and in the manner in which it was used was reasonable and proper in the repair of the building, having reference to the danger from fire as well as to other considerations, it would not render the policy void, but the question was a proper one for the jury. The case proceeded upon the theory that it was in the contemplation of the parties that the insured building should be kept in repair, and that what it was reasonably necessary to do to 'accomplish that purpose would not avoid the policy. But there can be no such claim made here. It is a well-known fact that gasoline is a dangerous article to have in and about a building. The parties had a right to contract that it should not be allowed upon the premises without the written consent of the company. They made such a contract. Gasoline was brought upon the premises, not for the purpose of being used in a reasonable way for necessary repairs, but, according to the version of the plaintiff, for the purpose of using it in a gasoline stove in an upstairs room, having no direct connection with the store, but reached from an outside stairway. "Would it be claimed that a gasoline stove could be used without the consent of the company, and that its use would not invalidate the policy ? If not, could the keeping of gasoline be allowed on the premises for the purpose of using it in a stove without the consent of the company, and the policy remain good? If so, how much might be kept? And for how long ? It seems to me to ask these questions is to answer them against the claim of the plaintiff. The language of the contract is plain and unambiguous, and the parties are bound by it. Vandervolgen v. Assuranee Co., 123 Mich. 291 (82 N. W. 46); Imperial Fire Ins. Co. v. County of Coos, 151 U. S. 462 (14 Sup. Ct. 379); London, etc., Ins. Co. v. Fischer, 34 C. C. A. 503, 92 Fed. 500; Liverpool, etc., Ins. Co. v. Gunther, 116 U. S. 113 (6 Sup. Ct. 306); Ostr. Fire Ins. (2d Ed.) § 25; 1 Wood, Fire Ins. § 58. The other cases cited by counsel are easily distinguished from this one.

It is claimed by counsel that the goods which were insured were in the three-story, composition roof, brick building, while the gasoline was in the one-story building, and did not come within the prohibition of the policy. We think this too technical. Permission was given to remove the insured property to the three-story, composition roof, brick building, occupied as a boot and shoe store, and situated at No. 72 East Eighth street. When this permission was granted, No. 72 included the rear portion of this store as well as the front portion. Both, portions had been occupied for a long time as one store. When the three-story building was erected, there was a door five feet wide and a window three feet wide in the rear partition thereof. When the one-story addition was built, the window sash and the door were removed, and both portions of the room for many years were used as No. 72 East Eighth street, and were so used by the plaintiff when the fire occurred. Some of his stock of goods were there. It is true a rough door had been put in the doorway, which, fastened with a string upon the inside, but both portions were used as one place of business.

It is said there is no evidence in the case tending to show that the gasoline was the cause of the fire; that the fact that the rear portion of the store did not burn is conclusive that the gasoline in no way contributed to the loss; and that the statute of 1897 (sections 5180-5182, 2 Comp. Laws 1897) was designed to prevent the forfeiture of fire-insurance policies by the violation of any condition of the policy when such violation has been without prejudice to the insurer, as is indicated by its title; and that, if we are guided by the title of the act, this case comes within it. It is said any other limitations in the body of the act are unauthorized and void, because in conflict with section 20 of article 4 of the Constitution. It is also said the act, with these limitations left out, is complete, and therefore valid. It is true the body of an act must not, under our Constitution, contain provisions contrary to, or not germane to, the subject-matter indicated in the title; but we do not understand the body of the act must contain all the provisions it might contain under the title to save the act from being unconstitutional. The body of the act contains no provisions not germane to the subject indicated by the title, and not authorized by it. In the absence of the statute, it is clear a breach of the contract of insurance would avoid the policy. Shelden v. Insurance Co., ante, 303 (82 N. W. 1068). The statute of 1897, by its terms, does not take this case out of that rule. The loss occurred during a breach of the contract, and while its terms were being violated. The statute does not provide that under such circumstances the policy shall be valid.

Judgment is affirmed.

The other Justices concurred.


author: Grant, J.

text:
    VAN BIANCHI v. WAYNE CIRCUIT JUDGE.
    Garnishment — Liability of Receivers.

       1. Receivers under chapter 300, 3 Comp. Laws 1897, are subject to garnishment.
    2. Whether the receiver can be garnished for the dividend of one of three joint claimants will depend upon the proofs.

      Mandamus by Annabele Van Bianchi to compel Byron S. Waite, circuit judge of Wayne county, to vacate an order quashing certain garnishment proceedings.
    Submitted April 24, 1900.
    Writ granted June 5, 1900.
    The corporation known as the Frontier Iron Works was dissolved under chapter 300, 3 Comp. Laws 1897, and a receiver appointed. Three parties, named Christie, Noble, and Weber, filed a joint claim against the corporation. The claim was submitted by direction of the court to referees, who made a report in favor of the claimants for $6,045.25. The relator had a claim against Christie, and, by leave of the court, garnished the receiver. Subsequently the court (another judge sitting) quashed the garnishee proceedings on the ground that the receiver was not liable to garnishment.

      Gray & Gray, for relator.

      C. A: Howell, for respondent.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). Receivers may be garnished, by leave of the court. Cohnen v. Sweenie, 105 Mich. 643 (63 N. W. 641); Hudson v. Saginaw Circuit Judge, 114 Mich. 116 (72 N. W. 162, 68 Am. St. Rep. 465). We see no reason why the receiver appointed under the statute above cited is not subject to garnishment, as well as any other receiver.

The answer of the garnishee states that there is a personal claim allowed in favor of the principal defendant of $186.38, that he has in his hands sufficient to pay a dividend of 28 per cent., and that $52.18 is due. Whether the dividend due upon the other claim can be garnished, under Markham v. Gehan, 42 Mich. 74 (3 N. W. 262), will depend on the proofs.

The writ must issue.

The other Justices concurred.


text:
    OXBY v. BOARDS OF SUPERVISORS OF KALKASKA AND ANTRIM COUNTIES.
    Mandamus — Boards op Supervisors — Rebuilding Bridge.
    Where there is a probability that the boards of supervisors of adjoining counties, charged with the duty of rebuilding a bridge across a navigable stream between such counties, will speedily agree upon a site, mandamus will not issue, even after a long delay, to compel the rebuilding of the bridge in its former location; but, in denying the writ, leave will be granted to relator to renew the application if the bridge is not built within a reasonable time.

      Mandamus by Charles Oxby to compel the boards of supervisors of Kalkaska and Antrim counties to rebuild a bridge.
    Submitted May 1, 1900.
    Writ denied June 5, 1900.

      William D. Totten and C. M. Phelps (T. J. O’Brien and James TI. Campbell, of counsel), for relator.

      J. L. Boyd, Prosecuting Attorney, for respondent Kalkaska county board.

      Andretv B. Dougherty (Fitch R. Williams, of counsel), for respondent Antrim county board.
   Moore, J.

The relator asks for a mandamus to compel the respondents to build a bridge across Torch river. His petition relates to the same subject-matter passed upon in Attorney General v. Boards of Sup’rs, 120 Mich. 357 (79 N. W. 567). A reference to this case will make a long opinion here unnecessary. The petition shows that relator lives near the site of the old bridge across Torch river, which bridge was, prior to 1895, maintained by the two counties jointly; that since 1895 the bridge has been out of repair, and those persons having occasion to use it have been compelled to employ a private ferry, at great expense; and it is insisted that, under the common law, it is the duty of the respondents to reconstruct the bridge, and that, as they have failed to do so, the relator is entitled to the writ of mandamus to compel them to do so.

In the absence of Act No. 458, Local Acts 1897, I think the contention of the relator is correct. But the case made by'the relator does not differ in kind from the one made when the case was here before, though it shows more strongly how unjust it is to persons having-occasion to cross Torch river, for the respondents to delay action in the matter. The conduct of these boards in failing to agree upon a site and to construct the bridge is not very commendable. The amended return of the board of supervisors of Antrim county shows that a change has taken place in the personnel of that board, and, taken in connection with the other pleadings in the case, indicates that the two boards are likely to agree upon a site before very long, as it is their duty to do. Speaking for myself, I do not believe that it lies in the power of either one or the other of these boards to , indefinitely postpone the building of a bridge across this river. While the legislature, by the passage of Act No. 458, Local Acts 1897, as stated by Justice Hooker, thereby authorized the counties to allow the highway to remain without a bridge at the old site, I think it made it incumbent upon the boards of supervisors to agree upon some site, and erect thereon a bridge, within a reasonable time, and that they cannot deprive the inhabitants of a bridge indefinitely by failing to agree. As there seems to be a prospect of an agreement of the boards very soon, I think the application for the writ of mandamus should be, for the present, denied, but with leave to renew the application therefor if a bridge across Torch river is not built within a reasonable time from this date.

The other Justices concurred.


author: Per Curiam.

text:
    MAYNARD v. INGHAM CIRCUIT JUDGE.
    Mandamus — Quashing Indictment.

      Mandamus will not lie to compel the circuit judge to quash an indictment, in advance of a final determination of the case.

      Mandamus by Fred A. Maynard to compel Howard Wiest, circuit judge of Ingham county, to quash an indictment.
    Order to show cause denied June 8, 1900.

      T. J. O'Brien, Moses Taggart, and Bussell G. Ostrander, for relator.
   Per Curiam.

This is an application for a writ of mandamus to require respondent to quash an indictment. In People v. Thompson, 108 Mich. 583 (66 N. W. 478), we held (following the authority of Palms v. Campau, 11 Mich. 109), that we would not, in advance of a final determination of a case, review the action of a circuit judge in refusing to quash an indictment. It was said in that case that the practice ought to be uniform, and the fact was then stated that the court had, in numerous cases not reported, adhered to the same rule. It was strenuously insisted, both on the original application and on a motion for a rehearing, that in view of exceptional circumstances, and of the great expense involved both to the accused and to the State, and of the disgrace which might follow an unauthorized conviction, an exception should be made of that case. ' These considerations were not deemed sufficient to justify a departure from settled practice. That case has since been steadily adhered to. In view of this settled practice, we must deny the motion.


author: Montgomery, C. J.

text:
    ALLEN v. FIELDS’ ESTATE.
    1. Estates of Decedents — Claims—Objection to Form.
    Where an executor contests a claim against his decedent’s estate, in the form of a statement of account for services rendered, without demanding a bill of particulars or requesting the court to frame an issue, an objection that the claim was insufficient to warrant the court in receiving any evidence is without force on appeal.
    2. Same — Evidence.
    A judgment against an estate for services rendered to the decedent in his lifetime will not be reversed because claimant was permitted to read the will of the deceased in evidence, for the alleged purpose of showing that no provision was made thereby for payment of the claim, and was further permitted to show that it was drawn by the executor and residuary legatee therein, who was not related to the deceased.
    3. Same — Misconduct of Counsel — Right to Complain.
    Where, in a proceeding to establish a claim against decedent’s estate, claimant’s counsel offered in evidence the files in the case to show that the claim had been presented to commissioners, and an appeal taken by the executor to the circuit court, and the executor’s counsel then stated, “ I don’t understand that the claim was allowed,” to which claimant’s counsel replied that it was allowed, the executor could not complain that the statement of claimant’s counsel prejudiced the jury, as neither counsel kept within the rule in relation to such matters.

      4. Same — Agreement to Pay for Services at Death — Instructions.
    The charge of the court as to the right to recover on an agreement to pay for services at death is examined, and held to be sufficiently favorable to defendant.
    Error to Macomb; Eldredge, J.
    Submitted April 12, 1900.
    Decided June 18, 1900.
    Addison Allen presented a claim against the estate of William Fields, deceased, for services rendered- the latter during his lifetime. The claim was allowed in part by the commissioners, and Seth Lathrop, executor of the last will and testament of the deceased, appealed to the circuit court. From a judgment for claimant, the executor brings error.
    Affirmed.

      Byron JR. ErsMne, for appellant.

      Warren S. Stone (Seth W. Knight, of counsel), for appellee.
   Montgomery, C. J.

Error is brought to review proceedings on a trial by a jury of a claim filed by Addison Allen against the estate of deceased, which claim reads as follows:

In the Matter of the Estate of William Fields, Deceased.

To Addison Allen, Dr.

To 2 years’ board and washing.......................§200

To work, labor, services, care, attendance, and employment in and about the care and management of farm work, and assistance to said deceased personally____ 500

§700

On the trial there was testimony tending to show that claimant furnished board to deceased, and that he attended upon deceased at times when intoxicated, furnished conveyance to his home on such occasions, and that he at times did farm chores for deceased. The character of the services was such that they might be treated as neighborly acts, or as services to be compensated, as there was or was not an agreement or understanding that they were to be paid for. The claimant called a number of witnesses who testified to statements made by deceased to the effect that claimant would be paid in the end; “that he would be well paid;” that claimant understood that he would be well paid in the end, etc. The jury found in favor of claimant in the sum of $675.

We shall consider the assignments of error in the order in which they are discussed in appellant’s brief. First, it is contended that the claim was not sufficient to justify the court in receiving any evidence There does not appear to have been any demand for a bill of particulars, or any request to the court to frame an issue. Under these circumstances we consider the objection without force. Grimm v. Taylor's Estate, 96 Mich. 5 (55 N. W. 447); King v. Brewer, 121 Mich. 339 (80 N. W. 238).

It is claimed that counsel for claimant was permitted to prejudice the jury. Counsel offered in evidence the will of deceased for the purpose of showing that the deceased had not provided any payment for the services rendered. We think this can hardly have worked any serious prejudice. Counsel on cross-examination of the executor, Mr. Lathrop, asked him if he drew the will. It is insisted that, as it appeared that Mr. Lathrop was not related to the deceased, and was the residuary legatee under the will, this might have worked prejudice, and error is assigned on the refusal of the court to strike out the testimony. We are not convinced that such was the probable effect of this testimony.

Error is also assigned on a statement of claimant’s counsel that the claim was allowed before commissioners. The record discloses that claimant’s counsel offered in evidence the files in the case to show that the claim was presented to commissioners, and an appeal taken by the executor to the circuit. Counsel for the estate at once stated, “I do not understand that the claim was allowed,” to which claimant’s counsel replied that the claim was allowed. Neither counsel kept within the rule, and we do not think counsel for the estate is in position to complain.

Error is assigned upon the refusal of certain requests. The circuit judge charged the jury in part as follows:

“I charge you that in this case, if the services rendered by said Allen and his wife to deceased were rendered under an agreement and understanding between deceased and said claimant that such services were to be paid for out of the estate of said deceased, after his death, such agreement would be binding on his estate, and would not be barred by the statute of limitations. An agreement whereby one undertakes to compensate another for services rendered to him out of his estate after his death is binding on the estate of such person deceased, and the statute of limitations would not commence to run upon such undertaking until after the death of the person so promising. So one important question for you to determine is, Under what agreement or understanding were the services that are claimed to have been rendered by the claimant rendered for the deceased? Were they so rendered under an understanding and agreement had by both the deceased and claimant that the services rendered were to be paid for out of his estate at his death? You will therefore carefully consider the testimony as to the language of the parties as shown to have been used,- the conduct, acts, and declarations of the deceased relative to the matter; do they show that these services claimed to have been rendered were rendered under such circumstances as show that the deceased intended to have claimant understand, and that claimant did understand, that such services as he should render at the request of deceased should be paid for out of his estate, by provision in his will or otherwise? If so, then you will understand that the statute of limitations, which bars all claims over six years of age, does not commence to run until the payment becomes due, which would be at the death of deceased. This is important, because it may be that services were rendered with the understanding that they were to be paid for, but the payment was not expressly deferred, and for such services, if the payment was not deferred until death, the compensation would be due and payable immediately, and barred by the statute of limitations at the expiration of six years from their rendition. I say this to you that you may see how important it is for you to determine first this very important question, ‘Were these services claimed rendered under the circumstances I have mentioned ? ’ It is not necessary that the claimant should show a formal contract between the parties, but he should show, in order to avoid the statute of limitations, as to any claim for services rendered six years before the death of deceased, he should show that they were rendered under an agreement and understanding on the part of both deceased and himself that the services were to be paid for out of his estate, as by provision in his will or otherwise, at his death. If you find, from the evidence introduced in this case, that the services rendered by claimant were valuable, and that there was an understanding between deceased and claimant whereby the claimant was to be compensated therefor after the death of deceased, then such agreenoient would be binding upon the estate of deceased, and you should allow the claimant what such services were reasonably worth. It is not sufficient, to entitle claimant to recover, to show that he rendered services to the deceased, and that such services were valuable, but he must also show that such services were rendered under such circumstances as to justify the conclusion that a charge therefor was intended and expected by the claimant and deceased. If the relation of the parties, the nature of the services rendered, and all the pertinent facts show that claimant was not working for money pay, and the deceased did not understand that pay was expected, none can be demanded. One neighbor may request another to render a service for him, which service may be of value to the party receiving it; yet, if such service was rendered at the time without the expectation of pay, a claim therefor cannot afterwards be presented and allowed.”

We think these instructions fairly presented the issue in the case, and could not have been misapprehended by the jury.

The other assignments do not call for discussion.

Judgment affirmed.

The other Justices concurred.


author: Long, J.

text:
    ANDERSON v. CITY OF DETROIT.
    Public Works — Contractors and Subcontractors — Claim for Personal Injury — Settlement—Mandamus to City.
    Where, in an action against a paving contractor by a subcontractor, it was determined that the plaintiff was not entitled |o recover a balance due upon his subcontract, represented by a certified cheek deposited with the city by the defendant upon payment by it of the contract price, pending the settlement of a citizen’s claim against the city for personal injuries sustained by reason of the negligence of the subcontractor, such adjudication was sufficient ground for the court’s declining to issue a mandamus to compel the city, after its liability to the citizen had been discharged, and pending its suit against the contractor for reimbursement, to turn over the check to the subcontractor.

      Certiorari to Wayne; Hosmer, J.
    Submitted June 5, 1900.
    Decided June 18, 1900.

      Mandamus by Andrew Anderson against the city of Detroit and the board of public works of said city to compel the delivery of a certified check. From an order denying the writ, relator brings certiorari.

    Affirmed.

      G°orge Gartner, for relator.

      C. D. Joslyn, for respondents.
   Long, J.

The whole subject of this controversy was before this court in Anderson v. Grant, 114 Mich. 161 (72 N. W. 144). It now appears that the check of $421.65 is still held hy the board of public works, and a mandamus was asked in the court below to turn it over to the relator. This the court below refused. It is claimed by counsel for relator that assuming that Dooley was injured, and that by reason thereof he had a claim against the city or against Grant or against Anderson, or against them all jointly, yet, this being an independent matter, this claim cannot be taken into consideration here. This contention cannot be sustained. In the former case it appeared that Anderson sued Grant for this $421.65, and it was held that he could not recover, on account of the pendency of the Dooley claim. This is the identical amount and the identical money which it was there held that Anderson had no right to have, by reason of the Dooley claim. It appears now that Dooley has sued the city and obtained judgment, and there is now a suit pending *in behalf of the city against Grant to recover from him the amount of the Dooley judgment. The question was settled in the former case that, under the circumstances there, Anderson could not recover. He is in the same position still with regard to the Dooley matter.

The court below very properly denied the writ of mandamus. The judgment must be affirmed.

The other Justices concurred.


text:
    RUGGLES v. MUSKEGON CIRCUIT JUDGE.
    Logging Lien — attachment—Appraisal—Motion to Quash.

       1. In attachment proceedings to enforce a lien under sections 10756-10770, 3 Comp. Laws 1897, an appraisal of the lumber attached is not necessary.
    2. The question whether a lien is void because plaintiffs included in their statement more than was due cannot be tried upon ex parte affidavits in a motion to quash the proceedings.

      Mandamus by Fred H. Ruggles and others to compel Fred J. Russell, circuit judge of Muskegon county, to vacate an order quashing certain log-lien proceedings.
    Submitted June 12, 1900.
    Writ granted June 18, 1900.

      Relators, copartners, filed a claim of lien under Act No. 229, Pub. Acts 1887 (3 Comp. Laws 1897, §§ 10756-10770), upon certain lumber and railroad ties, which they allege they manufactured for Walter Snow and William S. Clark under a contract which is attached to the return. An attachment was issued under section 10760 for the enforcement of the lien. On motion of the defendants, the attachment proceedings were quashed.

      Martin Rozema, for relators.

      Rufus F. Sheets, for respondent.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). We think the statement of lien is a full compliance with the statute. Two points only need be noticed:

No appraisal was necessary, under Federspiel v. Johnstone, 87 Mich. 303 (49 N. W. 581).

The question whether the lien proceedings are void because relators included in their statement more than was due cannot be tried upon ex parte affidavits. That question can only be disposed of upon the hearing. S. K. Martin Lumber Co. v. Menominee Circuit Judge, 116 Mich. 354 (74 N. W. 649).

Writ will issue.

The other Justices concurred.


text:
    COLLINS v. SHAW.
    Sale — Refusal to Accept — Evidence.

       1. It is error to permit a party to introduce in evidence an entry in his books of his version of a parol contract.
    2. Plaintiffs sold to defendants a flock of sheep for §5.10 per 100 pounds. The sole controversy was whether the sheep were to be delivered in merchantable and marketable condition. Held, error to permit evidence of the value of the sheep.
    3. It was error to permit plaintiffs to show that the defendants made money in their business, the cost of transporting the sheep to market, and the profits made thereon.
    Error to Shiawassee; Smith, J.
    Submitted June 5, 1900.
    Decided June 18, 1900.

      Assumpsit by Bert Collins and William Olney against Arthur Shaw and Bert Holmes for the breach of a contract to buy sheep. From a judgment for plaintiffs, defendants bring error.
    Reversed.
    Plaintiffs were the owners of a large flock of sheep and lambs, which they were feeding on the farm of plaintiff Olney. The defendants, drovers, purchased them. All parties agreed that the price was $5.10 per hundredweight, with a bonus of $5. Plaintiffs claimed that the defendants agreed to take the entire flock “straight;” that is, without condition. Defendants contended that the sheep, when delivered, were to be merchantable and marketable. This was the sole controversy as to the agreement, which rested in parol. Defendants took part of the flock, but refused to take the remainder, because they were not merchantable or marketable. Plaintiffs thereupon sold them, and brought this suit to recover the difference between the contract price and the price for which they were sold, and recovered a verdict and judgment.

      John T. McCurdy, for appellants.

      Seth B. Terry and Watson & Chapman, for appellees.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). Plaintiff Collins testified that, after the contract was made, he went to his book, and entered it. The court permitted this entry of plaintiffs’ version of the contract to be received in evidence, and also permitted plaintiff Olney, who was not present when the bargain was made, to testify that he, saw it on the book. This testimony was incompetent. Weaver v. Bromley, 85 Mich. 212 (31 N. W. 839); Caldwell v. Bowen, 80 Mich. 382 (45 N. W. 185); Hodges v. Power Co., 109 Mich. 547 (67 N. W. 564.).

Plaintiffs were permitted to show by witnesses what •they considered the sheep worth. This was incompetent. There was no dispute as to price. The case is not one for the application of thé rule approved in Short v. Cure, 100 Mich. 420 (59 N. W. 173); Shakespeare v. Baughman, 113 Mich. 551 (71 N. W. 874); and other cases.

It was error to permit defendant Shaw, upon cross-examination, to be asked the following question: “You have made money in your business ? ” And also to permit plaintiffs to show what it cost to get the sheep to Buffalo, or what profit defendants made. These things had no legitimate bearing upon the question at issue. They were evidently made use of by counsel in his argument to prejudice the jury.

Complaint is made that counsel for plaintiffs, in his argument to the jury, made statements not justified by the record. Inasmuch as the erroneous admission of testi. mony furnished the occasion for the remarks complained of, we need not discuss them.

Judgment reversed, and new trial ordered.

The other Justices concurred.


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    SHAW v. SHAW.
    Appeal — Evidence — Fraud — Setting Aside Deed.
    The decree of the circuit judge, setting aside a deed alleged to have been fraudulently obtained from complainant by her son, being fully justified by the evidence, was affirmed.
    Appeal from Marquette; Stone, J.
    Submitted June 5, 1900.
    Decided June 18, 1900.
    Bill by Esther Shaw against George W. Shaw to set aside a deed. From a decree for complainant, defendant appeals.
    Affirmed.

      Charles R. Brown & Son, for complainant.

      Button & Culver, for defendant.
   Moore, J.

The complainant is about 61 years of age. The defendant is her son. The bill in this case is filed by her to have a deed set aside because it was fraudulently obtained from her. The proofs were taken in open court. The circuit judge granted a decree in favor of complainant. The only question involved is one of fact. It would not profit any one to detail the testimony. It will be sufficient to say of it that we think it fully justified the circuit judge in the decree he made.

The decree is affirmed, with costs.

The other Justices concurred.


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    GAINES v. SIMONS.
    Appeal — Bill to Vacate Degree — Issues Below.
    Where a bill to vacate a foreclosure decree, on the ground of fraud and conspiracy, and want of notice to defendants therein, is dismissed for failure of proof, complainant cannot, on appeal, claim relief on the ground of irregularity in the foreclosure sale and inadequacy of price, no such claims having been set up in the bill.
    Appeal from Wayne; Frazer, J.
    Submitted June 6, 1900.
    Decided June 18, 1900.
    Bill by Alfred Gaines against David W. Simons, William S. Green, John G. Hawley, and Harry F. Chipman to vacate a decree of foreclosure. From a decree dism iss ing the bill, complainant appeals.
    Affirmed.

      Robert J. Willis (D. Augustus Straker, of counsel), for complainant.

      William Rolston Brown (Maybury & Lucking, of counsel), for defendant Simons.

      Harry F. Chipman, in pro. per.

   Long, J.

On the 16th day of February, 1897, Alfred Gaines and wife executed and delivered to William S. Green a mortgage on the property in litigation in this suit to secure the repayment of a loan of $3,000, made at that time. In payment of the first installment of interest, Gaines gave to Green a check on a bank in which he had no funds, which check Gaines never paid, although twice notified by letter that the check had been dishonored. The second installment of interest, falling due February 16, 1898, was not paid, and, after notice to - Gaines by letter, Green filed a bill to foreclose said mortgage. The return of the sheriff of Wayne county showed that personal service of the subpoena was had on both Gaines and wife on the 27th day of April, 1898, and on May 9, 1898, John Gr. Hawley caused notice of -his appearance as solicitor for the defendants to be served, and Mr. Hawley was thereafter recognized as such by the complainant’s solicitors, and copies of all papers and notices of all proceedings in the foreclosure case were duly served upon him. The case proceeded in the usual and regular manner to decree, and on the 20th day of June, 1899, the property was duly and regularly sold to David W. Simons for $3,738.13, report of sale was duly confirmed, and a deed executed. Demand for possession having been made, the bill of complaint in this cause was filed to vacate the foreclosure decree.

The bill is based entirely upon want of notice of the pendency of the foreclosure proceedings, and charges the defendants therein with fraudulent conspiracy to injure the complainant. This charge of fraud and conspiracy was found by the court below to be absolutely disproved. Want of notice was likewise disproved. The court below dismissed complainant’s bill.

Counsel for complainant raise other issues. It is claimed that the sale of the premises was irregular, illegal, and void, and not in pursuance of the decree of the court, in that the mortgaged premises were sold together, and not separately, there being two lots; that the complainant made a tender in the court below of the amount due on the mortgage; and that the price for which the lots sold was inadequate. These claims were not set up in the bill, and cannot now be raised.

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

The other Justices concurred.


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    VAN DER BECK v. VAN DER BECK.

    1. Divorce — Alimony—Excessive Allowance — Reduction.
    Where, on divorce being granted for a husband’s adultery, it was shown that his property consisted of business interests worth §12,000, insurance policy worth §800, furniture worth §400, §800 cash, and Western lands, not available for immediate sale, worth §5,600, and that his debts amounted to §8,000, an award to the wife as alimony of the insurance policy and furniture and §7,600 cash, which if paid would leave the husband with insufficient funds to conduct his business, was excessive, and, on appeal, was reduced to. an allowance of §7,000, to include the furniture and insurance and one-half the land.
    2. Same — Costs—Solicitor’s Services — Value.
    An allowance of §500 for services of a solicitor in drawing and filing a bill in a former divorce proceeding, for which §25 to §50 would ordinarily be allowed, in the absence of proof of the value of the services, was excessive, and should be reduced to §50.
    Appeal from Wayne; Waite, J.
    Submitted June 7, 1900.
    Decided June 18, 1900.
    Bill by Mary H. Van Der Beck against George A. Van Der Beck for a divorce. From a decree for complainant, defendant appeals.
    Modified.

      Elliott G. Stevenson and Leo M. Butzel, for complainant.

      Maybury & Lucking, for defendant.

       Rehearing (complainant’s application) denied September 24,1900.

   Long, J.

The parties were married in 1893. They lived together about five years, when they separated. They have no children. Complainant was about 26 years of age at the time of the marriage, and was a school teacher by occupation, earning $70 per month. She filed a bill for divorce some time before the present bill was filed. Their differences were settled, and they commenced living together again. Defendant is about 3G years of age, is engaged in business in Detroit, and has considerable property. The complainant filed the present bill in September, 1898. It charges the defendant with adultery and cruel treatment. On the hearing the defendant did not deny the charges made. The court found that the material allegations in the bill were sustained by the proofs, and entered a decree of divorce on the ground of adultery. The complainant was awarded a large amount of alimony. She was given the household furniture, excepting the silverware and china, .which came- from defendant’s family. The defendant was required to release and transfer to complainant all his interest in a policy of insurance, which had a cash value of $800, and to pay the complainant $7,600 in cash; these payments to be in lieu of temporary alimony or for maintenance of complainant, and for bills incurred by her in connection with the former divorce proceeding instituted by her. This was to be in full satisfaction of her interest in defendant’s property. She was also given a lien upon all of his property in this State to secure the payment of the alimony, and a receiver was appointed to take possession of the property. The defendant appealed from this decree, and gave a bond to release the property.

The only question raised in this court is the amount of the alimony. The defendant’s property consisted, at the time of the entry of the decree below, of the following items:

Baseball irfterests, the highest value stated at_____$12,000

Insurance policy.................................. 800

Furniture................-...........-........... 400

Cash..................... 800

Western lands, which, it is argued, were worth____ 5,600

$19,600

It is claimed by his counsel that he owed debts amounting to $3,000.

We think, under the proofs, the court below very properly granted the decree of divorce, but we are satisfied that the award of alimony was excessive. The proofs show that the defendant, while living with the complainant as his wife, was guilty of the most lewd conduct. He apparently consorted constantly with lewd women, and was guilty of adultery upon several occasions. The law is well settled that these facts should be taken into consideration. The court should, however, in fixipg the amount of alimony, have taken into consideration the property affairs of the defendant, the amount of property, what cash assets he had, and the other available property. It is apparent that the land, which is situate in another State, is not available for immediate sale. If the baseball interest is worth $12,000, which defendant denies, the payment out of that of $7,600 would leave him without much available funds to carry on his business, which would apparently be thus broken up and destroyed.

There was included in the amount given complainant the sum of $500, which she claimed she owed her solicitor in the former divorce proceeding. It appeared all that was done in that matter was the drawing and filing of a bill for divorce. No proofs were given of the value of those services. Ordinarily, from $25 to $50 would be the limit allowed by the law for such services, and, as no proofs were given of their value, we think but $50 should be allowed complainant for that item. It is conceded that $135 should be allowed for other debts of complainant. The alimony must be reduced, and the following awarded: The defendant will be required to deed to complainant one-half of the land in the foreign State, she to take it at the value of $2,800; $450 will be deducted from the $500 which was allowed to complainant to pay for divorce proceedings ; the defendant will be required, not only to make the deed as above provided, but shall pay in cash to complainant or her solicitors the sum of $3,000. The .complainant will therefore be awarded:

Cash....................-_________________________ $3,000

Household furniture, valued at----•.................. 400

Insurance policy............-...................... 800

Western land, valued at....................-....... 3,800

Making a total value of..........-...............$7,000

—Out of which complainant can pay her solicitors and the other debts.

With this modification, the decree below will be affirmed. No costs of this court will be allowed.

The other Justices concurred.


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    FLUHRER v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    Railroads — Employes — Uncoupling Moving Cars — Rules — Customary Violation.
    Violation by a railroad employ é of a rule against going between moving cars to uncouple them will not prevent a recovery for injuries so received, where it appears that the rule had been virtually abrogated by the company by sanctioning its customary violation.
    Error to Lenawee; Chester, J.
    Submitted June 7, 1900.
    Decided June 18, 1900.
    ■ Case by Mary Fluhrer, administratrix of the estate of John M. Fluhrer, deceased, against the Lake Shore & Michigan Southern Railway Company, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Affirmed..

      C, .27. Weaver (George C. Greene and O. G. Getzen-Danner, of counsel), for appellant.
    Watts, Bean & Smith, for appellee.
   Moore, J.

This case has been here once before, and is reported in 121 Mich. 212 (80 N. W. 23). Upon the second trial, plaintiff recovered a verdict. The case is brought here by the defendant by. writ.of error.

The counsel for defendant argue over again in their brief the questions passed upon when the case was here before. We do not think any further reference is necessary to that feature of the case. The case was sent back for trial upon a single point, in relation to which the court declared the law to be as follows:

“It is well settled that a violation of the rules of the company will defeat recovery. The exception, to this is where the company itself has sanctioned the custom of its employés to act in violation of the rules, and has thus virtually abrogated them. This exception is based upon the theory that it would be unjust in employers to establish rules, and then sanction their violation, and interpose such violation as a defense. Hunn v. Railroad Co., 78 Mich. 513, 526 (44 N. W. 502, 7 L. R. A. 500); Eastman v. Railway Co., 101 Mich. 597, 602 (60 N. W. 309). Fairly construed, the above rule is notice, to brakemen not to enter between the cars while in motion to.uncouple them, and an agreement not to do so. The danger in doing so is apparent. Only when this rule is violated by brakemen so universally and notoriously that it is a fair inference that the company sanctioned and approved the violation is the company barred from this defense. The court instructed the jury that if they believed that the motion of the cars was so slow that it was not negligence to pass between them to uncouple them, and that such was the usual custom of brakemen under like circumstances, then such act would not necessarily prevent recovery by the plaintiff. There was evidence tending to show that it was usual and customary for brakemen to pass between the cars while in motion to uncouple them. The case was not submitted to the jury upon the theory that the company had sanctioned a violation of this rule. The question was not referred to in the .instructions. * * * When the defendant had entered into the contract with the deceased, in which he acknowledged the receipt óf a copy of these rules, and agreed to abide by them, it had met the plaintiff’s case, even though it was not negligence per se to go between the cars when in motion. The onus prohandi was then cast upon the plaintiff to show that the company sanctioned a departure from the rule by a custom so universal and notorious that the company was presumed to have had knowledge of it and to have ratified" it. This is an important feature of the case, and was not, we think, by the instructions, properly submitted to the jury.

“Counsel for plaintiff urge that the evidence does not show that Fluhrer ever read or saw these rules. The production of the duplicate contract signed by him was prima facie proof that he had received and read them. If there was a conflict of testimony on this point, it should be submitted to the jury under proper instructions.”

Upon the second trial, testimony was given in relation to the custom of the employes about going between the cars when in motion to uncouple them. The jury were properly instructed in accordance with the law as stated by the court when the case was here before, and the jury rendered a verdict in favor of plaintiff.

Judgment is affirmed.

The other Justices concurred.


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    SIMON v. SPIRO.
    Justices op the Peace — Pleading—Appeal.

       Defendant was arrested upon a warrant issued by a justice of the peace in a civil suit brought by plaintiff to recover damages for assault and battery. No declaration was filed. Defendant pleaded not guilty, and went to trial upon the merits without objection. Upon special appeal, held, that he had waived the filing of a declaration, and that the circuit court should have permitted a declaration to be filed.

      Certiorari to Gogebic; Haire, J.
    Submitted June 8, 1900,
    Decided June 18, 1900.

      Trespass by Julius Simon against Lduis Spiro for assault and battery. Plaintiff had judgment in justice’s court, and defendant took a special appeal to the circuit. Prom a judgment reversing that of the justice, plaintiff brings certiorari.

    Reversed.
    This case was commenced in justice’s court. Plaintiff filed an affidavit charging the defendant with assault and battery, and alleging damages to himself therefrom. Defendant was arrested, brought before the justice, and the affidavit read to him. He pleaded not guilty, and asked for an adjournment, which was granted. On the adjournment day both parties appeared, and went to trial upon the merits, without the filing of a declaration. A judgment of $100 was rendered in favor of plaintiff. Defendant thereupon took a special appeal to the circuit court, alleging want of jurisdiction in the justice’s court to try the case, because no declaration was filed. The circuit judge sustained the objection, and reversed the judgment. The case is now before us upon the writ of certiorari.

      Julius J. Patek (John W. McGrath, of counsel), for appellant.

      Herb. M. Norris, for appellee.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). The judgment is erroneous. Plaintiff’s claim is as fully set forth in his affidavit as it could have been in a declaration. Defendant treated the affidavit as a declaration, pleaded thereto, and went to trial upon the merits without objection. He waived the filing of the declaration, and submitted to the jurisdiction of .the court. It was his duty to raise objection in the justice’s court. Having failed to do this, he will not be allowed to raise it in the appellate court. As this is fatal to the judgment of the circuit court, we need not discuss the other questions raised. It was the duty of the circuit court to permit a declaration to be filed.

Judgment reversed, and case remanded for trial.

The other Justices concurred.


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    PEOPLE v. KINNEY.
    1. Intoxicating Liquors — Looal Option — Sale of Cider — Preserved Sample — Permitting Jury to Taste.
    Where, in a prosecution for selling fermented liquor contrary to the local-option law,- a sample of the cider alleged to have been sold, which had been preserved in a bottle by a witness for the prosecution, was produced at the trial, the witness testifying that it was in about the same condition as when sold, it was not error to admit the same in evidence, and to permit the jury to taste it.
    2. Same —Expert Witnesses — Qualifications — Province of Court.
    It is the court’s province to determine the qualifications of nonprofessional witnesses to express an opinion; and, where a witness is offered to testify as to the process of fermentation in cider, it is proper to require him to state his experience and observation, in order to enable the court to judge of the admissibility of his opinion.
    3. Same — Stage of Fermentation — Immaterial Inquiry.
    In a prosecution for selling a fermented liquor, i. e., cider, contrary to the local-option law, it is an immaterial inquiry whether or not the cider had reached a stage of fermentation which rendered it intoxicating.
    Exceptions before judgment from Van Burén; Smith, J.
    Submitted June 12, 1900.
    Decided June 18, 1900.
    Matthew Kinney was convicted of violating the local-option law.
    Affirmed.

      T. J. Cavanaugh, for appellant.

      James E. Chandler, Prosecuting Attorney, for the people.
   Long, J.

The local-option law is in force in Van Burén county. The respondent was convicted under an information charging him with having on the 5th day of October, 1899, at the township of Decatur, Van Burén county, sold and furnished to S. C. Maybury and Edward Bass a certain quantity of fermented, spirituous, and intoxicating' liquor, to wit, one gallon of hard cider.

The people offered proofs tending to show that, on the evening of October 5th, Maybury and Bass went where respondent resided, and there, in his cellar, purchased from him one gallon of fermented cider, paid for it, and went back to the village of Decatur. One Barney Ma-honey testified that he followed Maybury and Bass to the respondent’s place, saw them come out of the place, and followed them to Decatur village, where he tasted the cider; that it was hard cider, — fermented cider; that he then took some and corked it up in a bottle. Maybury and Bass testified that, after tasting some of the cider, they asked respondent if he did not have some that was harder; that he gave them some, and that thereafter Mahoney tasted it and corked it up in a bottle; that they did not ask for sweet cider, but hard cider. On the trial the bottle of cider corked up by Mahoney was produced, and Mahoney testified that it was in about the same condition as when he put it in the bottle. The respondent testified that this cider was made September 28, 1899; that Maybury and Bass asked for a gallon of cider to be used in making mince pies; that he furnished it, and received 15 cents therefor; that it was cider made on September 28th, and was not hard cider, but sweet cider. He also called other witnesses who testified that it was made at that time, and was sweet cider.

After Mahoney had given his testimony, the prosecution offered the bottle' of cider in evidence. Counsel for respondent objected to this offer on the ground that it was incompetent, irrelevant, and immaterial. The court Said:

“ Unless the evidence in this case shows that the contents of this bottle is in the same condition it was on October 5th, it would be of no value as evidence; but, if the evidence has any tendency to show it is in the same condition, it would be admissible. ”

It was received in evidence, and the court then said: “There is a tumbler, gentlemen, if you want to taste of it, any of you.”

Respondent’s counsel- objected to these remarks of the court, instructing the jury that they might taste it. The argument of respondent’s counsel here is that if the jury, by tasting it, smelling, or drinking it, as they were ordered by the court, thereby acquired knowledge or formed opinions of its properties, as to whether it was hard or fermented cider, those tasting or smelling it could not give evidence to their fellow jurors without being sworn. There is nothing in the record showing or tending to show that any of the jurors smelled or drank of it, nor is there any evidence that the bottle was placed in their hands for examination. The record is entirely silent upon that subject. But, even if it had been handed them and they had tasted it, we think it would not have been error. The testimony of Mahoney, who put it in the bottle, tended to show that it was in about the same condition as when sold by the respondent.

It is claimed that the court erred in refusing to permit the witness Mott to answer certain questions put to him by respondent’s counsel. Mr. Mott testified:

“ I always handle a little cider for my own use. Cider put in the kind of bottle in evidence in this case would grow harder from day to day.

“Mr. Chandler: I object to it as incompetent, irrelevant, and immaterial, until this man is shown to be an expert.

“Mr. Cavanaugh: He is as much of an expert as Barney Mahoney is.

Mr. Chandler: I move to strike out the answer.

The Cou,rt: I should think that would be a matter for an expert. I don’t think that the evidence shows that this witness is an expert.

“Mr. Cavanaugh: Does your honor rule the question out ?

“The Court: Yes.

' “Mr. Cavanaugh: I will take an exception to the ruling of the court.

“Witness: I have handled cider to some extent, and have kept the same. I have watched it to know how it conducted itself from time to time.

“Q. I will now ask you what do you say as to whether or not cider that is put in that bottle on the 5th day of October, in about that quantity, would change so as to grow harder from that until the present.

“Mr. Chandler: I renew the objection that I made before. This man is not competent to testify on that question.

“The Court: I think, before the witness can give an opinion upon that question, he must state in the presence of the jury what experience he has had on that subject.

“Mr. Cavanaugh: He has already stated, your honor, that he has handled the stuff, and had occasion to watch it and know how it worked.

“The Court: He might have occasion to watch it, and not watch it, even. He has not shown that he has had any particular experience. Probably he has had.

“Mr. Cavanaugh: I take an exception to the ruling of the court. Now, I propose to show by several other men, along that same line, that this cider would grow harder from time to timé, and I am excluded from doing so by the ruling of the court.

“Mr. Chandler: No; I don’t understand that you are excluded from doing anything of the sort.

“The Court: I will rule on the questions as they come up. No; instead of excluding you from showing that, I allow you to.

“Mr. Cavanaugh: You have not so indicated.

“The Court: Well, I indicate now that you can show by competent witnesses, but you cannot show by incompetent witnesses; and, before you can take the opinion of. a witness on this subject, the witness must appear to have had sufficient experience so that he can properly be held to be an expert on that subject.

“Mr. Cavanaugh: That is not the question for the court to pass upon. It is á question for the jury to determine what weight they should attach to the testimony, and I take an exception to the ruling of the court on that proposition, as well as the other.

“The Court: The court will instruct the jury as to the law. ”

The court was not in error in this ruling. It is the province of the court to determine the qualifications of nonprofessional witnesses to express an opinion. The witness must first state the facts and his means of observation, and the court can then decide whether the facts testified to, and his means of observation, are such as to justify the expression of an opinion. A witness who is not an expert is not allowed to express an opinion unless he has a personal knowledge of the facts on which the opinion is based. Here the court expressly indicated that respondent could introduce the testimony excepted to, but said that the witness must first show his experience and observation. That was to enable the court to judge of the admissibility of the opinion in the first instance. Counsel refused to follow up the examination suggested by the court. We think no error was committed.

It is claimed that the. court erred in the following portion of the charge:

“Now, the question for you to determinéis, Was this cider in a state of fermentation on the 5th day of October, when these two men got it ? If it was'what is commonly called ‘sweet cider’ (that is, cider that had not begun to ferment), there is no offense proved against him. It is no offense to deliver a man a gallon of cider that is not commencing to ferment; but if it has commenced to ferment, and is in any stage of fermentation, then, under the law, it is an offense to sell it or furnish it to another. I do not know that this word ‘fermentation’ needs any definition. It is a term you well understand the meaning of. Sometimes we say cider has ‘begun to work.’ It means just about the same thing. The terms ‘hard cider’ and ‘ sweet cider ’ have been used by counsel quite a little in their talk to the jury and in the testimony. It is not a question, really, whether it was sweet cider or hard cider; it is a question whether this cider, on the 5th day of October last, — this gallon of cider, — whether it was fermented or not. Of course, if you mean, by. ‘fermented cider,’ hard cider, why, then, the question is the same. It is not necessary that the cider should be intoxicating. Cider, after it reaches a certain stage of fermentation, is regarded, and is as a matter of fact, intoxicating; but cider may commence to ferment, and be in a stage of fermentation, so that it could be called ‘fermented cider,’ and yet it might not be intoxicating. It is not necessary that this cider should have gone to that degree of fermentation to make it intoxicating; all that is necessary is that it should be fermented. Was this cider fermented on the 5th day of October ? It is not a question of degree, providing it is fermented.”

In People v. Adams, 95 Mich. 541 (55 N. W. 461), it appeared that the court instructed the jury that, if the cider sold was fermented, the respondent should be convicted. It was there said:

“The statute prohibits the sale of fermented cider, and forecloses inquiry as to whether cider which is fermented is intoxicating, whatever the stage of fermentation.”

• We think the charge of the court was not erroneous. It conveyed the idea to the jury, simply, that they might convict if they found the cider in any stage of fermentation, though it might not then be intoxicating.

We find no error in the record. The conviction must be affirmed.

The other Justices concurred.