author: Per Curiam.

text:
    WELLS v. MONTCALM CIRCUIT JUDGE.
    1. Mandamus — Grounds—Absence of Other Remedy.
    The writ of mandamus will not be allowed to take the place of an appeal or writ of prohibition, or any other writ to review the action of the lower court.
    2. Same — Remedy by Appeal.
    Mandamus to a circuit judge will not be granted to determine which of two circuits has jurisdiction of a suit for divorce where relator has pleaded the pendency of the other suit in. abatement of the one pending before respondent.
    Mandamus by Maude M. Wells to compel Frank D. M. Davis, circuit judge of Montcalm county, to set aside an order denying a motion to dissolve an injunction and dismiss a bill of complaint.
    Submitted March 7, 1905.
    (Calendar No. 20,954.)
    Writ denied March 28, 1905.

      E. O. Grosvenor and Willis Baldwin (Griswold & Tennant, of counsel), for relator.

      E. J. Bowman and C. L. & O. B. Barden, for respondent.
   Per Curiam.

Relator, on January 9, 1905, filed her bill for divorce in the circuit court for Wayne county against Percy D. Wells, and a subpoena and injunction issued immediately. Said subpoena was at once placed in the hands of the sheriff of Wayne county for immediate service. Defendant could not be found in Wayne county, and, upon showing made, the court authorized alias subpoenas to be issued, one of which was sent to Montcalm county, and the other to Kent county. The sheriff of Montcalm county found defendant, and duly served said subpoena, January 14, 1905. After filing the bill of complaint and issuing subpoena and injunction, complainant went to Greenville after the child, who was with defendant Wells’ parents, taking with her the injunction to show her authority to have custody and control of said child.

On January 10, 1905, defendant, Percy D. Wells, filed his bill of complaint for divorce against this relator, as defendant, in the circuit court for Montcalm county, a subpoena and injunction issued, and were served at once on Maude M. Wells at Greenville on said last-mentioned date. After such service the parents of Wells refused to give her the child.

On January 12, 1905, relator moved said circuit court for Montcalm county to dissolve the injunction and dismiss the bill of complaint, for the reason that before and at the time of the commencement of said suit there was a suit for divorce pending in the circuit court for Wayne county between the same parties praying for the custody of this child, and said Wayne’county circuit court was possessed of jurisdiction over the subject-matter and the parties before the bill was filed in Montcalm county. This motion was denied, with costs against relator.

Relator filed this petition, and, afterwards appearing specially in the Montcalm circuit court, pleaded in abatement to said bill of complaint the same facts set up in her motion to quash, and as set up injher petition in this matter. Issue was joined upon said plea, and is now pending in said Montcalm circuit court.

• The question sought to be raised here is whether the Wayne circuit court or the Montcalm circuit court has jurisdiction to hear and determine the subject-matter of the controversy between relator and her husband, Percy D. Wells. It is first necessary to determine whether the remedy sought is the proper one. Where there is any other adequate remedy, a writ of mandamus will not be granted. Relator has made an issue, now pending in the case in Montcalm circuit, by plea in abatement, since her petition filed in this matter. That forum is of competent jurisdiction to determine that issue.

The writ of mandamus will not be allowed to take the place of an appeal or a writ of prohibition, or any other writ to review the action of a lower court. The only argument in favor of this writ that can be made is because of the peculiar situation, where two courts of co-ordinate jurisdiction are assuming control of the same parties and subject-matter, and an unseemly squabble might arise in attempts to enforce conflicting orders. It would seem, however, that by making proper application during these proceedings, especially reserving all rights, the court would make only such orders as would conserve relator’s interests, and she could come here on appeal from that court and have the question sought to be raised in this proceeding regularly determined.

For the reasons stated, the writ of mandamus is denied«


source: Caselaw Access Project

license: Public Domain

text:
    HANSELMAN v. ADRION.
    Appeal and Error — Assignments op Error — Failure to Serve — Dismissal.
    Where plaintiff in error failed to serve any assignments of error, and no satisfactory excuse was given for the failure to do so, his motion to extend the time to make return to the writ of error was denied, and the writ dismissed.
    Case by Frederick Hanselman against Charles Adrion for slander. There was judgment for plaintiff for less than the amount claimed, and he brings error. On motion to dismiss.
    Submitted February 28, 1905.
    (Calendar No. 20,791.)
    Granted March 28, 1905.

      A. J. Waters, for the motion.

      William Look, contra.
   Per Curiam.

Motion to dismiss writ of error. This is an action for slander, and was tried in Washtenaw circuit, and judgment entered for plaintiff November 3,1903, for six cents damages and six cents costs of suit. A motion for a new trial was denied December 3, 1903, and 90 days granted by consent to settle a bill of exceptions. The writ of error issued October 17, 1904, returnable November 28, 1904.

It is admitted that on or about April 30, 1904, counsel for plaintiff handed the attorney who assisted defendant on the trial as counsel a proposed bill of exceptions and á copy of the testimony on the case, that no assignments of error were made or. served, that in a few days the papers counsel for defendant received were delivered to defendant’s attorney of record, and that no other papers were ever served on anybody. There is a dispute between the attorneys as to what occurred at the time these papers were served. It is not necessary for us to settle this controversy.

This motion is determined -by the undisputed facts. Defendant’s attorney of record was by rule entitled to be served with all papers. No attempt has been made at all to show that he has been recognized in any manner since the case was tried. Nor is any claim made that he or counsel for defendant made any agreement about the bill of exceptions, or that either was afterwards in any way -approached about the matter. The rule is that assignments of error must be served with the bill of exceptions. No claim is made that this requirement was ever complied with in this case.

If it is claimed that by practice in that circuit service on counsel should be recognized, that would not supply the omitted assignments of error. ■ Defendant’s attorney of record was entitled to the assignments of error, in order to know what plaintiff relied upon as error in the case; but no attempt has ever been made to furnish assignments of error either to the attorney of record or counsel who assisted on the trial. Plaintiff has not followed the practice, and has been very dilatory in this matter.

At any time plaintiff’s attorney might have proceeded under the rules and practice in this court if he had so desired, by assigning errors, settling a bill of exceptions, and having the record certified to this court. No satisfactory reason or excuse is given why this has not been done. The motion to dismiss the writ is granted, with costs.

It follows that the motion made by plaintiff to extend the time to make return to the writ of error, and which was considered at the same time with the above motion to dismiss thó writ, is denied.


author: Ostrander, J.

text:
    CITY OF DETROIT v. BOARD OF INSPECTORS OF ELECTION FOR THE FOURTH ELECTION DISTRICT OF THE SECOND WARD OF THE CITY OF DETROIT.
    Elections — Use op Voting Machine — Constitutionality.
    ■Section 3 of article 7 of the Constitution, requiring all votes, . except for township officers, to be given by ballot, merely declares the policy of the State to assure to the elector a secret, as distinguished from an open, or announced, vote, and does not permanently establish a particular mode of voting, and is not infringed by Act No. 334, Pub. Acts 1903, amending sections 3750-3758, 1 Comp. Laws, authorizing the use of voting machines, and requiring all voting by machine to be by a secret vote.
    Certiorari to Wayne; Mandell, J.
    Submitted March 28, 1905.
    (Calendar No. 21,035.)
    Decided March 30, 1905.
    Mandamus by the city of Detroit to compel the board of inspectors of election for the Fourth election district of the Second ward of the city of Detroit to use certain voting machines. There was an order denying the writ, and relator brings certiorari.
    Reversed.

      Timothy E. Tarsney, Corporation Counsel (Lewis A. Stoneman and Frank Keiper, of counsel), for relator.

      Sherman D. Callender, for respondents.
   Ostrander, J.

The relator, the city of Detroit, filed its petition in the circuit court for the county of Wayne, setting out, in substance, the following facts: That at a meeting of the common council of the city of Detroit held March 7, 1905, the city clerk was directed by resolution to have voting machines placed in divers election districts in said city (amongst others, in'the Fourth district of the Second ward), to be used at the election to be held Monday, April 3, 1905; that the resolution specified a particular kind of voting machine; that the board of inspectors of the named district, and each of them, have refused to obey the order of the common council, and assert that they will not obey it, giving as reason for their refusal that such method of voting is not a constitutional method. It is further set out that the particular voting machine is a complete and perfect piece of mechanism, thoroughly tested and reliable, constructed and operated in such a way as to permit an elector to vote secretly for a candidate or candidates of his choice upon any and all tickets, and that the same opportunity for discrimination is provided for the elector as if a paper ticket were used. The ■petition prays for a writ of mandamus, directed to the board of inspectors of said election district, commanding them to obey the resolution of the council. An order to (show cause was issued, and the inspectors of said election district filed an answer, in which they admit the facts stated and set forth in the petition of relator, and they aver that they have refused and will refuse to obey the said order and direction of the common council to use the voting machine named, or any other voting machine, because they are advised that, under and by virtue of the provisions of section 2 of article 7 of the Constitution of this State, all votes given at any election must be by ballot, except as stated in said Constitution, “and that the word ‘ballot,’ as contained in said provision of the Constitution, does not permit the use of said voting machines, or any other voting machine, at elections, but means only a ticket upon which shall be written or printed the names of the candidates to be voted for at said election, ánd that the use of any other device is without warrant or authority of law.” The cause coming on to be heard upon'the petition and answer, the court denied the writ. The proceeding is brought into this court by certiorari, has been argued orally, and very full briefs have been submitted in behalf of both the relator and the respondents.

The act of the legislature which is brought into question is Act No. 61, Pub. Acts 1897, 1 Comp. Laws, §§ 3750-3758, as amended by Act No. 23i of the Public Acts of 1903. The title of the act is, “An act to authorize the use of any thoroughly tested and reliable voting machine at any election held in this State.” The act provides that any city council or village council may at any regular meeting authorize the use of such voting machines at any election to be held within their respective cities or incorporated villages during the ensuing year, but that “all voting by machines shall be a secret vote as hereinafter provided,” and that all election laws not incompatible with the act are continued in full force and effect.

The pleadings before us, read in connection with the legislation referred to, not only assume but afford assurance of the fact, that the voting machines in question will, if used, insure to the elector proper instruction in the use of the machines, absolute secrecy in voting, opportunity to vote for any person or candidate of his choice for any office to be filled at a particular election, a knowledge that he has voted, a correct record of the vote or votes, and a public and correct declaration of the total result of the election, and the recording and preservation of such result by officers chosen and sworn for that purpose.

It is with reference to this statement of facts, and upon the assumption of the verity of each of them, that we proceed to discuss the only question before us, which is, Does the legislation in question contravene the provisions of section 2 of article 7 of the Constitution? That section reads:

“All votes shall be given by ballot, except for such township officers as may be authorized by law to be otherwise chosen.”

The same language was used in the Constitution of 1835, art. 3, § 2.

There is but one other provision of the Constitution relating to the method of voting at elections, and that is section 11 of article 4, which is:

“In all elections by either house or in joint convention, the vote shall be given viva voce.”

The question may be stated in simpler form in this way: Is a vote given or cast by the use of the machine — secrecy, free choice of candidates, a correct record of the vote, and a correct record and announcement of the total vote given for each candidate being assured — a vote “given by ballot?”

All reasonable presumptions are to be indulged to support the questioned legislation. The Constitution of Michigan is not a Code, nor is the particular provision in any way self-executing. The language is imperative, and requires that whatever system of ^conducting elections shall receive legislative sanction must have, as an integral, mandatory part of it, voting by ballot. In our opinion, the question ds not to be determined as one of mere philology ; nor should we apply, as we are asked to do, the rule of construction, often of great assistance, which limits the meaning of the words “given by ballot” to the vehicle used in voting or the method of depositing the vote which was probably in the contemplation of the framers of the Constitution. Neither do we regard as controlling the fact that previous legislative enactments have, with few exceptions, and those like the one now before us, uniformly provided for written or printed tickets for use in elections. We may assume that they have adopted the best known and most convenient way of voting by ballot — of obeying the constitutional mandate. And a ticket so provided was not a ballot, but, when properly deposited, or properly marked and deposited, by the elector, was a vote given by ballot. State, ex rel. Runge, v. Anderson, 100 Wis. 523, 531 (42 L. R. A. 239).

We regard the provision of the Constitution as a declaration of State policy, assuring to the elector a secret, as distinguished from an open or announced, vote. And in reaching this conclusion, we apply those rules of construction which observe the apparent purpose of the provision questioned; its generality; whether the language used is broader in meaning than the individual conceptions at the time of its adoption, and broad enough to sustain the legislation now considered.

The necessity for an early opinion in this case prevents any considerable references to the history of voting by ballot. The uses of the white and black balls in the club and in the lodge are familiar. Some of the early laws of the colonies provided that freemen might vote in the affirmative by the use of an Indian corn; in the negative, by putting in a bean. Lexicographers seem not agreed upon the derivation of the word “ ballot.” It has been said that it was adopted from the French language, without change of meaning (State v. Shaw, 9 S. C. 94, 138); that it comes from the Greek word meaning “to throw” (2 Am. Cyc. 540). In common speech, the word “ballot” is used to mean the ball or ticket used in voting; the act of voting; the result of voting. It seems clear, however, that from the earliest times voting by ballot has been a term used to contradistinguish open, viva voce, or public voting, and secret voting.

“Voting by ballots is by a ticket or ball, and secrecy is an essential part of this manner of voting.” 1 Bouvier Law Diet. (Rawle’s Rev.)tit. “Election,” subd.“Ballots.”
“ The material guaranty of the provision of the constitution (section 6, art. 6), that ‘all elections by the people shall be by ballot’ is inviolable secrecy as to the person for whom an elector shall vote; and this guaranty is binding upon municipal governments in their regulation of elections.” State, ex rel. Smith, v. Anderson, 26 Fla. 240, syllabus.
“The expression ‘election by ballots’ had been expounded and construed by the various courts of last resort, and, with entire unanimity, they had declared it meant a secret ballot, and that the .essential principle of this manner of voting was that the elector might conceal from every person the name of the candidate for whom he voted.” Ex parte Arnold, 128 Mo. 261 (33 L. R. A. 386).

See, also, Williams v. Stein, 38 Ind. 89; Ritchie v. Richards, 14 Utah, 345; Brisbin v. Cleary, 26 Minn. 107. References to the principal lexicographers will discover the same concept and definitions of ballot voting.

In Opinion of the Judges, 7 Me. 495, one of the questions answered was whether printed ballots came within the meaning of a constitutional provision which required that all elections shall be by written ballots. The answer was, in part:

“ It may be observed that those who framed the constitution undoubtedly intended to guard against manyfinconveniences in the before-named elections, by excluding all those other modes by which questions are often decided in popular assemblies. This was the general object. .The word ‘ ballot ’ may be considered as opposed to a vote' by word or by signs — as, for instance, a vote by yeas and nayé, or the common mode of voting, by holding up the hand, or by rising and standing till counted. It may well be supposed that the mode prescribed was preferred * * * because it secur'es a greater degree of independence than any other in the exercise of the elective franchise.”

And the printed ballot was held good.

Henshaw v. Foster, 9 Pick. (Mass.) 312, 320, is as to the question presented, like the case last cited, and to that question the same answer was returned. But the opinion is of further interest here. It was urged “that the uniform and constant use of manuscript ballots in elections amounts to a construction of the terms of the constitution which ought now to be received as the only true one.” Of this the court, speaking by Chief Justice Parker, said:

“This practice of a mode of voting which is undoubtedly constitutional, founded in existing convenience, and never brought into competition with the use of printed votes, scarcely furnishes an argument against the latter. * * * It merely shows a preference of one over the other, or that one during- the time of the practice is more convenient than the other.”

To the same effect is Temple v. Mead, 4 Vt. 535.

In the opinions and briefs in State v. Shaw, 9 S. C. 94, will be found an exhaustive discussion of the meaning of the word “ ballot,” its derivation and definitions, some history of its employment, and its meaning, as used in the constitution of that State. That constitution provided that “in all elections by the general assembly, or either house thereof, the members shall vote viva voce and their votes thus given shall be entered upon the journal of the house to which they respectively belong.” Another section of the same instrument required the State to be divided into convenient circuits, and that for each the assembly should elect a judge by “joint ballot.” In the election of certain judges, the vote was given viva voce; and upon application of the attorney general, who invoked the original jurisdiction of the supreme court of the State, and who contended that a secret ballot was by the constitution made imperative in such elections, there was a judgment of ouster.

The case, In re Voting Machine, 19 R. I. 729 (36 L. R. A. 547), is not precisely in point here, because of differences in the constitutional provisions of the two States. The opinion is of interest, however, because the court considered the argument that the framers of the constitution, as individuals, never had in mind such a method of voting. Of this it is said:

“The question, however, is not what limitations they may have had in mind, by reason of the methods to which they were accustomed, but what the language of the constitution means, or may reasonably mean, with reference to the matter before us. * * * ”

In Opinion of the Justices to the House of Representatives, 178 Mass. 605 (54 L. R. A. 430), the question presented was:

' “Has the general court the right to authorize the use of voting and counting machines at elections by the people of national, State, district, county, city, or town officers ? ”

The constitution, as has been noticed, provided that representatives shall be chosen by written vote. It was held by three of the justices that the requirement might be complied with in voting by a machine which registers each vote cast without the use of separate ballots. One justice concurred, provided the results of the action of the machine in registering each vote were visible to the voter, and the work of the machine in adding up votes was done under the supervision of some person or persons charged with the duty of counting the votes cast. Three justices dissented upon the ground that “the turn of a wheel or dial punching a hole in an unseen roll of paper on which are the names of candidates, by a voter who pulls a lever or turns a key, is not a written, vote, within the meaning of the constitution.” The majority opinion, which seems to have been prepared by Chief Justice Holmes, referring to the opinion in Henshaw v. Foster, 9 Pick. (Mass.) 312, in which it was said that the word ‘ ‘ ballot ” is ambiguous, which was the reason for the constitutional requirement of a written vote, contains this language:

“No doubt, the picture in the minds of those who used the words was that of a piece of paper with the names of the candidates voted for written upon it in manuscript; but the thing which they meant to stop was oral or hand voting, and the benefits which they meant to secure were the greater certainty and permanence of a material record of each voter’s act, and the relative privacy incident to doing that act in silence * * * It seems to us that the object and even the words of the constitution, in requiring ‘written votes,’ are satisfied when the voter makes a change in a material object — for instance, by causing a wheel to revolve a fixed distance — if the material object changed is so connected with or related to a written or printed name purporting to be the name of a candidate for office that, by the understanding of all, the making of the change expresses a vote for the candidate whose name is thus connected with the device.”

Our attention has been called to no decisions precisely in point. We have referred to those mentioned as supporting substantially our reasoning and the result arrived at. We do not regard the decision in State, ex rel. Runge, v. Anderson, 100 Wis. 523 (42 L. R. A. 239), as opposed in principle to either our reasoning or conclusions.

The purpose of the framers of our Constitution in requiring that in all elections in either house of the legislature the votes shall be given viva voce is obvious. Equally obvious, in our opinion, is the purpose of the provision under consideration. It is undoubted, as is claimed by counsel for respondents, that as early as 1835 the method of voting by the use of tickets was known. It was nevertheless important that the policy of the new State with reference to the subject of voting at elections should be declared in the Constitution. Agitation for the vote by ballot had only then begun in England, nor was it ended and the ballot assured until 1872. In 1835, and after, voting other than by ballot was practiced in the United States. To say that the purpose of the framers of our Constitution was not to secure a particular mode of voting secretly, but was to make manifest in the organic and continuing law a policy to be perpetuated, is to give to the words of the instrument no forced or unnatural meaning.

As was said by Mr. Justice Campbell in People v. Cicott, 16 Mich. 283, 297.

“ Our whole ballot system is based upon the idea that, unless inviolable secrecy is preserved concerning every voter’s action, there can be no safety against those personal or political influences which destroy individual freedom of choice. ”

If we could imagine our Constitution adopted today, and the legislation in question enacted, with reference to all the facts stated, tomorrow, would it be contended that the legislation was unconstitutional because not providing that “ votes shall be given by ballot ? ”

We are of opinion that we should not hold the legislation to be invalid for any of the reasons urged. The circuit court for the county of Wayne was in error in deny- * ing the writ of mandamus, which should issue as prayed.

The proceeding being one of public interest and importance, no costs will be awarded.

Moore, C. J., and Carpenter, McAlvay, Grant, Blair, Montgomery, and Hooker, JJ., concurred.


author: Ostrander, J. Ostrander, J. Carpenter, C. J.

text:
    BUHLER v. TROMBLY.
    1. Statute of Frauds —Part Performance — Parol Contract to Convey Land.
    Mere occupancy of a dwelling and the making of ordinary repairs and changes to suit the premises to the needs of the occupant, paid for out of partnership funds belonging to the promisor and promisee, are not sufficient part performance to take a parol promise to convey out of the statute of frauds. Carpenter, C. J., and McAlvay, and Montgomery, JJ.', dissenting on rehearing.
    2. Guardian and Ward — Promise of Ward — Revocation by Guardian.
    A promise which may at any time be recalled by the promisor may, on his becoming non compos mentis, be recalled and revoked by his guardian.
    3. Gifts — Real Estate — Parol—Part Performance.
    A promise, as a mere act of bounty by a foster father, to permit his foster son to occupy certain premises rent free during the father’s life, and that they shall become the property of the son on the father’s death, is not a contract, in the absence of any showing that the son agreed to do anything, or ever did. or refrained from doing anything, or in any way changed his condition or circumstances, or was induced to forego any benefit or assume any liability because of or relying on the promise, though he entered on the premises, and for several years occupied them without paying rent. Carpenter, C. J., and McjAlvay and Montgomery, JJ., dissenting on rehearing, on the ground that the promise by the son, fully performed, to live in the house that he might be near the partnership business of himself and foster father, constituted a sufficient consideration.
    Appeal from Wayne; Frazer, J.
    Submitted January 11, 1905.
    (Docket No. 45.)
    Decided February 27, 1905.
    Motion for rehearing granted December 30, 1905.
    Re-argued April 3, 1906.
    (Docket No. 1.)
    Former opinion affirmed July 3, 1906.
    Bill by Christian F. Buhler against Robert Trombly, guardian of Joseph Buhler, an incompetent, to enforce a parol agreement for the occupancy of certain real estate, and to restrain summary proceedings for the possession of the same. From a decree for' complainant, defendant appeals.
    Reversed, and decree entered for defendant.

      Maybury, Lucking, Emmons & Helfman, for' complainant.

      De Forest Paine, for defendant.
   Ostrander, J.

The contention of complainant is that, hy the mutual parol agreement of himself and Joseph Buhler, complainant was to occupy, rent free, certain premises on Macomb street, in Detroit, belonging to Joseph Buhler, during the life of said Joseph, and that, at his death, the premises were to be the sole property of complainant. The bill is filed to give effect to this agreement so far as the rent of the premises is concerned, to restrain certain proceedings at law brought to recover possession of said premises, and that the court “determine that your orator is entitled to continue in the use, occupation, and possession of said premises under and by virtue of the said contract and agreement between your orator and said Joseph Buhler.” The bill wa,s verified on November 3, 1903. Prior to that time, and on the 10th of January, 1903, Joseph Buhler had been, upon the application of complainant, adjudged by the probate court for the county of Wayne to be mentally incompetent to transact his business, and the defendant in this suit, Robert Trombly, had been on or about that date appointed guardian of the person and estate of said Joseph Buhler. The guardian so appointed, before the filing of the bill, demanded of complainant rent for the property in question, payment of which was refused, served upon complainant notice to quit the premises, and later began before a circuit court commissioner summary proceedings to obtain possession of the premises, which were pending when the bill was filed. The guardian filed an answer, in which he denies that any such agreement as that relied upon in the bill was ever made, and in the answer claims the benefit of a cross-bill, and asks for an accounting as to the amount due to defendant for rent, for restitution of the premises, and for other relief. Proofs were taken in open court.

The vital questions in the case are whether any such agreement as is claimed was made, and, if made, whether there has been such performance on the part of complainant as to warrant a court of equity to enforce specific performance of the agreement to the extent prayed for in the bill.

It is at the beginning important to learn the terms of the agreement asserted, and for these we look to the bill of complaint. The bill, after stating the adoption of complainant by Joseph Buhler, his rearing and education as Buhler’s own son, and the fact that at the age of 24 Joseph Buhler took him into partnership in business, avers that on July 26, 1887, complainant was married, and that at that time and prior to that time Joseph Buhler had been carrying on a meat business at 2Í0 Randolph street, in Detroit, under the firm name of Joseph Buhler & Son, and—

“ That said Joseph Buhler desired your orator to remain and continue in said business after he should be married, and desired your orator to live close by the place where the said business was being conducted; that said Joseph Buhler, a short time prior to your orator’s marriage, proposed to your orator and promised and agreed with him that, if your orator would continue after his said marriage to remain in said business with said Joseph Buhler, and would live close to the place or store where the same was being conducted, said Joseph Buhler would purchase for your orator a home in the vicinity wherein your orator and his family should live without paying rent therefor, and upon the death of said Joseph Buhler the same should be and become the sole property of your orator ; that your orator then and there accepted the proposal of said Joseph Buhler as hereinbefore set forth, and promised and agreed to conform to and abide by the terms and conditions thereof.”

These are the terms, and all of them, of the agreement alleged. The marriage of complainant is not asserted to have been any consideration for the agreement, nor an act in part performance thereof. The bill sets out that thereafter Joseph Buhler purchased the premises in question, turned them over to complainant for a home, and that from a period shortly after his marriage complainant and his family have occupied the premises continuously under and by virtue of the terms of the said agreement, and that Joseph Buhler has never demanded or collected any rent from complainant for the premises, but has, on the contrary, at all times said that the property belonged to complainant. The bill further alleges the expenditure of large sums of money by complainant, to the knowledge of Joseph Buhler, in repairing, improving, and beautifying the property, all in reliance upon the said contract; that complainant has at all times lived up to and carried out the duties and obligations resting on him under said contract; and that Joseph Buhler has never expressed a desire nor made an attempt to change or alter or revoke said contract, and that the contract has at all times continued to be, and is now, in full force and effect.

The decree appealed from by defendant finds and recites an agreement considerably broader in terms than the one set out in the bill of complaint, adjudges that complainant is entitled exclusively to “the use, possession, and enjoyment and ownership of the aforesaid premises during the lifetime of said Joseph Buhler,” and restrains permanently the attempt to collect rent, and any disturbance or interference with the quiet and peaceable possession of the premises by complainant.

Joseph Buhler was not sworn as a witness. At the hearing in the court below, the files and records in the case of Robert Trombly, guardian, etc., complainant, against Andrew Elersy and Helen Elersy, defendants, were offered in evidence. The bill in that case was filed on August 5, 1903, and the decree therein on April 11, 1904, and an appeal from that decree has been taken to this court. The offer made is broad enough to include the testimony taken in that case, from which testimony it appears (and it has been examined for no other facts) that Joseph Buhler was at the hearing in the circuit court sworn as a witness, and attempted to give testimony, and that he appeared to be unable to understand the questions asked him, or the character of the business being transacted for him.

In the case at bar the only witness sworn on behalf of defendant was the defendant himself, and there is nothing in his testimony to indicate that he 'has any knowledge of the alleged agreement.

The testimony shows that some time prior to 1866 Joseph Buhler and^ his wife, a childless couple, then residents of Detroit, took complainant, an infant, into their home, and that Joseph, and his wife, while she lived, thereafter always treated him and spoke of him as their son. In 1866, when he was about 8 years old, he was baptized in St. Mary’s Church, Detroit, the baptismal record describing him as Christian, adopted son of Joseph Buhler and his wife. From the age of 7 until he was past 12 he attended St. Mary’s School, and later, for a period of six months, a classical school. He then went to work for Joseph, who kept a butcher shop at 210 Randolph street, the family living over the shop. The boy was not paid wages until he was about 22 or 23 years of age, but was clothed and furnished some money. When he was about 23 years of age, he for 6 months worked by agreement for $8 a week, and then Joseph made him a partner in the business. Complainant did not contribute to the capital of the partnership. There were no written articles of partnership.

Complainant testified that Joseph said:

“ I will tell you, I will take you right into business with me, and we will be right in together, and whatever you will use you will use, and whatever I use I will use, and we will all be at home, one, partners.”

On cross-examination he testified:

“And after while he said he would take me in business, and then I could use what I wanted. * * * I went into that business with Joseph Buhler, and drew out what money I needed. I am not guessing about the amount of money I drew out of that business, but I should judge it would be about three or four hundred dollars a year— what it cost me to live — and probably $500.”

They did considerable business. Complainant worked early and late, and was apparently in all respects a dutiful foster son and a valuable aid in affairs of business. No division of profits was made, and complainant says that over and above the sums which he took Joseph had the proceeds of the business. In 1887 complainant was Inarried. Five or six months before his marriage, complainant being then 28 years old, he had, he says, a talk with Joseph, then a man 59 or 60 years of age, in which he spoke of getting married, and it was at or about this time that the alleged agreement was made. In substance, complainant testified that Joseph Buhler said that, if he would settle down and get married, he wanted him to be near the business.

“He told me: ‘I will buy a home for you, because I want you right near the business, because I am not as young as I used to be, and it is hard to work, and you will have to be here early and late, and you cannot live far away; and I will ,buy a home for you, and this house is yours free of rent until I die, and after that the house is yours.’ ”

On cross-examination he testified:

“ I spoke of getting married. So he says, £ Yes, that would be very good.’ We would settle down. He didn’t want me to live far from the house, so he says: £ I will buy a house for you in the neighborhood here, and-1 want you to be right here near the business, and we had the use of the barn as well and everything handy, because you have to be here early in the morning and late at night, and you know you can’t live far away; ’ and he bought the house, three or four months before I was married, for me. * * *
Q. Do I understand you to say that you would not have got married at all if this proposal had not been made to you F
A. That is something I cannot say. I would very likely have got married as'well.
Q. You would have been willing to go right on as you were before, whether he made this proposal or not, would you not ?
“A. How do you mean ? Proposal for what F
Q. Proposal to buy you «this homestead.
“A. I have not' made any proposal to him. He proposed it to me.
Q. You expected to get married anyway ?
A. Oh, certainly; naturally I would.
Q. And you were willing to continue in the business ?
“A. Certainly.
Q. Whether he bought that house for you or whether he didn’t, you were willing to continue in the business ?
“A. Certainly.
Q. You didn’t have any other business to go to but that?
“A. No, sir. I was always home, and from a child up never knew anything else.”

Prances Knopp, a witness sworn for complainant, who had known Mr. and Mrs. Buhler since she was a little girl, entered their family to work and as a companion in February, 1887. At that time the sign on the butcher shop, she says, was “Joseph Buhler & Son,’’and the family lived over the shop. She ate at the same table and sat at the same fireside with the family. She heard a conversation between Joseph Buhler and Christian before his marriage about a house; that they agreed, and wanted to buy Chris a house, so that he would be near the shop; that, if they could have had Mr. Chris Buhler upstairs in the same building with them, it would have suited them better to have him near the shop; that they wanted Chris to live as close as that because he was the main hand in the shop.

“It was Mr. Joseph Buhler who made the advances and induced Chris that he wanted him, to have him near the shop, and that he would buy him a home close by; and it was his wish and inducement that he did that. Mr. Joseph Buhler made the advances. He said he wanted Chris to live there so that he would be early and late right near the shop, and be right with it always. Chris, agreed to that. Chris was satisfied. * * * Chris was present when it was spoken about and decided to buy the home on Macomb street. Mr. and Mrs. Buhler and Christian were present at that time. I think it was at the breakfast table they spoke of it. Joseph Buhler said, ‘We will buy the house on Macomb street, and give it to you for a home.’ Chris said, ‘All right.’ Chris was satisfied, and he says, ‘All right, if it suits you, it suits me/ That is about all they said. So the house was bought. There might have been a lot more said, but I could not give just every word about it. That is all I remember. Chris was not present at any other time when this subject was mentioned by Joseph Buhler. I don’t remember any other time when he was present. It was mostly spoken of at the butcher shop. * * * He says that to have the house nearer the shop the better, the nearer he lived the better he would like it. He wanted Christian to live near the shop. If he could have taken him upstairs, and arranged with him to live above the shop, it would have been better. That could not be done. There was something said at the time Joseph Buhler spoke to Chris about buying this house about living upstairs and being close to the business. That was the time it was said. It was all at one time, and Chris agreed to anything his father asked him to do; if it was satisfactory to his father it was satisfactory to him.”

There is some other testimony to the same effect. There is testimony that when the premises in question were purchased by Joseph Buhler he said, and it was otherwise talked in the family, that the deed would have been taken in complainant’s name but for the fact that there was a barn upon the premises which the old gentleman desired to use and did use more or less; that the desire to control the barn and the use of it was more or less determinative •of the question of who should be named as grantee in the •deed.

We think this testimony and all of the testimony in the ■record lacks something of proving the agreement set out in the bill, or any agreement. At the time of the talk or •talks upon the subject between complainant and his father, complainant was already a partner in business with his father. He had been told, as he testified, by his father, that eventually the business would all be his. Both the interest and duty of complainant were served by continuing his relations with his father and with the business. Complainant did not assume any obligation nor forego any advantage because of what his father proposed to do and did do for him. He worked no more hours after the house was bought than he had previously worked. It was rather the promise of a gift than a bargain or agreement in the ■proper meaning of that word. Complainant says that he has performed faithfully the contract and agreement. As has already been said, there was nothing to perform. He has done nothing that he would not have done if the home •had not been furnished to him by his father, unless it may be said that some money expended upon the property entitles him to consideration. As to that, it appears that he was married in 1887; that some time after that .Joseph Buhler bought the property in question; that when .he bought it, it was leased, and that for a year, or until the lease expired, Christian lived on Columbia street, sleeping at home, but for the most part taking his meals, as he had always done, over the shop; that after the tenant left the property in question some $300 was spent upon the house in tearing out partitions, painting, papering, and other changes. This money was drawn out of the firm, and so was the money paid for taxes so long as the partnership continued. Some of the windows have been replaced, the house has been occasionally painted,- some other repairs have been made to it and also to the barn upon the premises. Apparently, complainant has kept the premises at all times in good repair. Joseph Buhler has all the time since dissolution of the partnership paid the taxes, and upon at least one occasion assisted in a small way to pay for painting. ■ Complainant has never paid any rent, and has occupied the premises upwards of 16 years, during a part of which time he himself says the rental value was.$30 a month, and the remainder of the time $20 a month. If we were to say that all of these expenditures were made in reliance upon the promise of Joseph, it would not be part performance of a parol contract to convey land. There is ground for finding that the changes in the building were for convenience of complainant, as have been the repairs made during his occupancy of the premises. The most that can be said of the matter is that there was- a promise on the part of Joseph, to give a life estate, and finally a fee, carried out, so far as he was concerned, by placing complainant in possession of the premises; a promise which might at any time be recalled without doing violence to legal rules or creating any right of action on the part of complainant. If Joseph. Buhler had the right to recall his promise, his guardian, who has control of his person and estate, may likewise recall and revoke the promise.

There is more or less persuasive testimony in the record,, not specifically referred to, tending to show that Joseph Buhler intended that the property in question should be-occupied by complainant without payment of rent, and.should, upon his death, belong to complainant, and that he, upon different occasions and to different people, spoke of the property as Chris’ property or Chris’ home. The fact that complainant was left in possession after the dissolution of the partnership is some evidence that the origi: nal intention continued. But it also appears that in 1891 the partnership was dissolved, the place of business moved, Joseph Buhler retired from the firm, and Christian continued the business; that on May 1, 1891, complainant gave to Joseph Buhler his note, due one year after date, containing no provision for interest, for $2,464, and that this sum represented the assets of Joseph Buhler & Son on February 4, 1891, as Christian testified, or represented the stock that was left and ■ the fixtures and the horses and wagons and the money that was in the bank; and that his father told him he never would have to pay the note, as it simply represented the value of the property which he had turned over to his son.' Complainant never has paid the note nor paid interest upon it, and it is apparently, because of the statute of limitations, not a valid obligation. September 1, 1897, he borrowed from Joseph Buhler $1,291, giving his note therefor, due one year after date, no provision being made in the note for interest. Upon this note he has paid neither principal nor interest, and it is apparently, because of the statute of limitations, no longer a valid obligation. September 11, 1900, he borrowed of his father $1,000, giving his note ther.efor, due five years after date, and this note contains no provision for interest, and no interest has been paid. It is in evidence that the defendant, before being appointed guardian for Joseph Buhler, acted as his agent, beginning in 1896 or 1897; that in June, 1900, which was prior to the giving of the last note to Joseph Buhler by complainant, he was sent by Mr. Buhler to see if he could not make arrangements with Christian to pay a certain amount of rent for the house; that he did go, asked Christian to pay rent, and was told by him that he could not pay any rent; fhat the taxes upon the property have averaged since 1887 $40 to $45 a year. Complainant testified thát the first demand for rent of the premises was made after defendant was appointed guardian, but he does not specifically deny the fact sworn to by the defendant. His testimony is, “While Robert Trombly was the agent of Joseph Buhler, I don’t think he has asked me to pay rent for the premises; not to my knowledge.”

It is said on the part of complainant that the case is on all fours with that of Wright v. Wright, 99 Mich. 170 (23 L. R. A. 196). That case has been cited as authority for the proposition that an oral contract to give property at death in consideration of care or labor will be enforced in equity if the consideration has been paid or performed. See Owens v. McNally, 113 Cal. 444 (33 L. R. A. 369).

In Wright v. Wright two justices agreed that a parol contract to convey land could rest in implication, and that there could be such part performance of the implied contract as to warrant a decree for specific performance. A third justice agreed to the decree entered, but in a separate opinion, and upon a different ground, and two justices strongly dissented.

In Albring v. Ward, 137 Mich. 352, the opinion in Wright v. Wright was relied upon by complainant to sustain devolution of property by virtue of the adoption of a child under the provisions of a void statute, and its authority for any such proposition was denied. But Wright v. Wright is otherwise easily distinguished from the present case. In none of the other cases cited and relied upon by complainant do we find authority for the decree in the present case. It is unnecessary to review them. In each case an agreement was proven, and satisfactory proof furnished of substantial performance of the agreement on the part of the party seeking relief. Here we do not find any agreement — any contract — to have been made. Considered in the light of complainant’s own testimony, there was an act of bounty, merely, on the part of his father, which complainant naturally, and to his profit, was willing to accept; and, as has been already stated, it ■does not appear that he agreed to do anything, or ever did or refrained from doing anything, ever in any way changed his condition or circumstances,~was induced to forego any benefit or assume any liability, because of or relying upon the promise of the father.

There is much in the case inclining one to look kindly upon the claims of the complainant, and to wish that the bounty of the foster father might equal the expectations of the son. It is to be considered, however, apart from the very clear effect of the testimony referred to, that Joseph Buhler is living, that he- is shown to have been a rather careful business man, that he is owner of the premises in question, and that to sustain, the decree below will amount to first making and then enforcing an agreement based upon no legal consideration, to divest him of the use and of the fee of the premises in question.

The decree of the court below is reversed, with costs, and a decree will be entered in this court awarding to defendant restitution of the premises, unless complainant shall, within 30 days after notice of said decree, pay to defendant, at the rate of $20 per month, rent from July 1, 1903, to the time of said payment; occupancy thereafter of the said premises to depend upon the agreement of the parties.

Moore, C. J., and Carpenter, Montgomery, and Hooker, JJ., concurred.

on rehearing.

Ostrander, J.

I have found no reason for changing the opinion expressed when the case was first before this court.

Grant, Blair, and Hooker, JJ., concurred with Ostrander, J.

Carpenter, C. J.

(dissenting). The object of this •suit is to enforce a certain oral agreement described in complainant’s bill-as follows:

“Said Joseph Buhler (defendant’s ward), a short time prior to your orator’s marriage, proposed to your orator and promised and agreed with him that, if your orator would continue after his said marriage to remain in said business with said Joseph Buhler (this was a meat business in which said Buhler and complainant were partners), and would live close to the place or store where the same was being conducted, said Joseph Buhler would purchase for your orator a home in the vicinity wherein your orator and his family should live without paying rent therefor, and that upon the death of said Joseph Buhler the same should be and become the sole property of your orator; that your orator then and there accepted the proposal of said Joseph Buhler as hereinbefore set forth, and promised and agreed to conform to and abide by the terms and conditions thereof.”

The bill also, sets out that thereafter Joseph Buhler purchased the premises in question, turned them over to complainant for a home, and that from a period shortly after his marriage complainant and his family have occupied the premises continuously under and by virtue of the terms of said agreement.

The trial court rendered a decree in favor of complainant. This court (see ante, 557) reversed that decree upon the ground that the testimony of complainant and his witnesses — and this testimony was uncontradicted — did not warrant the conclusion that any agreement was made by him and defendant’s ward. The facts are fully stated in our former opinion. A rehearing was granted. The case has been reargued and we are called upon to again determine whether or not such an agreement was made, and, if so, whether it can be enforced. I think that the agreement was made and that it was also enforceable. I proceed to state such of the testimony as, in my judgment, establishes the agreement.

Complainant testified that defendant’s ward “told me, ‘ I will buy a home for you because I want you right near the business. * * * I will buy a home for you and this house is yours free of rent until I die, and after that the house is yours. * * * Í will buy a house for you in the neighborhood here and I want you to be right near the business” that he shortly thereafter — in 1888 — moved into this house and has lived there ever since. Frances Knopp testified:

“ It was Mr. Joseph Buhler who made the advances and induced Chris that he wanted him to have him near the shop, and that he would buy a home close by. * * * He said he wanted Chris to live there so that he would be early and late right near the shop and be right with it always. Chris agreed to that; Chris was satisfied.”

There is other testimony corroborating what I have quoted, and to which I need not refer. It is obvious — and this was recognized in our former opinion — “that there was a promise on the part of Joseph to give a life estate and finally a fee,” but we held that promise “might at any time be recalled without doing violence to legal rules or creating any right of action,” because “it does not appear that he (complainant) agreed to do anything, or ever did or refrained from doing anything, ever in any way changed his condition or circumstances, was induced to forego any benefit or assume any liability, because of or relying upon the promise of the father.”

In making this statement, we overlooked this, viz. (at least I overlooked it in assenting to said statement), that complainant agreed to live in the house in order that he might be near the joint business conducted by his foster father and himself, and that he faithfully carried out this agreement. By making this agreement, and by performing it, complainant was induced to forego a benefit, and did thereby furnish a consideration which entitles him to enforce the promise of Joseph Buhler. Had not complainant made this agreement, he might have lived wherever he chose. By making it and by performing it, he deprived himself of this right which was otherwise his.

In determining whether or not this is a consideration for the promise of defendant’s ward we resort to elementary principles.

“ If the promisee, at the instance of the promisor and moved by his promise, do any act which occasions him even the slightest trouble or inconvenience, or in doing which he incurs a risk, the act so performed constitutes a valuable consideration for the promise.” 6 Am. & Eng. Enc. Law (2d Ed.), p. 722.
“ Indeed there is a consideration if the promisee, in return for the promise, does anything legal which he is not bound to do, or refrains from doing anything which he has a right to do, whether there is any actual loss or detriment to him or actual benefit to the promisor or not.” 9 Cyc. pp. 312, 313.

In accordance with these principles it has been held:

The abandonment of one’s plan to accept employment in a distant town and making his home upon a farm is a consideration for a promise to deed the farm. Welch v. Whelpley, 62 Mich. 15.

The giving up of one’s home and employment and moving to a farm is a consideration for a promise to deed the farm. Bigelow v. Bigelow, 95 Me. 17. (These cases are in my judgment legally indistinguishable from the case at bar.)

Attending, or promising to attend, the promisor’s funeral is a consideration for a promise to pay money. Earle v. Angell, 157 Mass. 294.

Granting to the promisor at his request the privilege of naming the promisee’s child is a consideration for a promise to “provide for it generously and give it a good education.” Wolford v. Powers, 85 Ind. 294.

Changing' the name of a female child at the request of the promisor is a consideration for his promise to leave her by his will $500. Babcock v. Chase, 92 Hun (N. Y.), 264.

The disclosure of certain information is a consideration for a promise. Green v. Brooks, 81 Cal. 328.

Abstinence from smoking, chewing, drinking, swearing, and playing billiards for six years, or until plaintiff’s assignor was 21 years old, is consideration for a promise to pay $5,000. Hamer v. Sidway, 124 N. Y. 538.

Abstinence from use of tobacco until after promisor’s death is consideration for a promise to pay $500. Talbott v. Stemmons’ Ex’r, 89 Ky. 222.

Abstinence from use of intoxicating liquors is consideration for promissory note. Lindell v. Rokes, 60 Mo. 249.

The incurring of expenses of a trip, to Europe is consideration for the promise to reimburse such expenditures. Devecmon v. Shaw, 69 Md. 199.

The promise by a divorced wife that she will “ conduct herself with sobriety, and in a respectable, orderly, and virtuous manner,” is consideration for a promise to pay an annuity; the court saying: “She was legally at liberty * * * to conduct herself in these respects as she might think fit, and her promise to surrender her liberty * * * constituted a good consideration for his promise.” Dunton v. Dunton, 18 Vict. 114.

I submit that the foregoing authorities correctly state and apply the law, and that if we follow that law, we must hold that there was a consideration for the promise of defendant’s ward. I conclude, therefore, that there was an agreement between these parties. By the terms of that agreement defendant’s ward agreed that complainant should have during the life the house rent free and on his death the fee, and complainant agreed to reside in the house, and performed his agreement.

Was this agreement enforceable ? It was an oral agreement. It related to the transfer of land and was therefore within the prohibition of the statute of frauds. The fact, however, that complainant, in conformity with his contract, took possession of the land and held it for many years is such a part performance as to entitle him to relief in equity. Lamb v. Hinman, 46 Mich. 112; Welch v. Whelpley, supra; Bigelow v. Bigelow, supra.

As stated in our former opinion, after making the foregoing contract, complainant became indebted to defendant’s ward. This indebtedness has never been paid, and the larger part of it is no longer a valid debt because of the operation of the statute of limitations. In considering complainant’s moral culpability in not paying this indebtedness, it should be remembered that complainant testifies — and this testimony is undisputed — that he was often assured by defendant’s ward that he need not pay it. Said indebtedness has, however, no relation whatever to this controversy. Complainant’s failure . to pay it— whether morally justified or not — did not release defendant’s ward from the obligations of his contract. Indeed, our consideration of this indebtedness will only tend, in my judgment, to obscure our view of the real contror versy.

The decree of the circuit court should be affirmed.

McAlvay and Montgomeby, JJ., concurred with Cabpenteb, C. J.

Moobe, J., did not sit.


author: Montgomery, J.

text:
    LOVE v. HALLADAY.
    1. False Imprisonment — Evidence—Question for Jury.
    In an action against two defendants for false imprisonment, evidence examined, and held, not to conclusively show that one of defendants participated in the arrest, but to sustain the finding of the jury that he was not responsible therefor.
    2. Same — Instructions—Harmless Error.
    In an action for false imprisonment against two defendants, error, if any, in charging that exemplary damages were limited to such a sum as would constitute a just verdict against the defendant least culpable, was harmless, where the jury found in favor of one defendant.
    S. Damages — Inadequacy—Remedy.
    The remedy for inadequacy in the amount of the verdict is a motion for a new trial.
    Error to Eaton; Smith, J.
    Submitted January 10, 1905.
    (Docket No. 28.)
    Decided April 4, 1905.
    Case by Sarah A. Love against Oliver A. Halladay and Burton P. Love for false imprisonment. There was judgment for plaintiff against defendant Halladay, and she brings error.
    Affirmed.
    , Lyman H. McCall and Horace 8. Maynard, for appellant.

      Garry C. Fox and J. M. C. Smith, for defendant Halladay.
   Montgomery, J.

This is an action for false imprisonment. On the trial a verdict was rendered acquitting the defendant Love, and against the defendant Halladay for $5. A judgment according with this verdict was entered, and plaintiff brings error. The assignments of error are numerous, but the questions calling for discussion are few.

The question of first importance is whether the court should have directed a verdict against the defendant Love as well as against defendant Halladay. This question is of prime importance, in our judgment, for the reason that, if the court was right in submitting this question to the jury, the fact that the jury has found that he ought not to have been joined in the action eliminates some of the questions discussed. The facts, briefly stated, are as follows (adopting, for the purposes of this statement, the view most favorable to defendant Love, as we are bound to do, the jury having found the facts with him): The defendant Love, his wife, and little daughter, lived with plaintiff on her farm; all the parties occupying the same house. On the day that the trouble originated, the plaintiff committed an assault upon the wife of defendant Love, and when defendant Love afterwards learned of the fact, and charged plaintiff with it, also assaulted him. Defendant Love drove to the city of Charlotte for the purpose of causing plaintiff’s arrest. His wife accompanied him. They visited the prosecuting attorney, and laid all the facts before him; and, from certain statements made by defendant Love and his wife, the prosecuting attorney was evidently of the opinion that plaintiff’s sanity should be inquired into, and referred defendant Love to the judge of probate. The defendant Love then visited the judge of probate. The facts were fully stated to the latter, and a petition was signed by defendant Love, asking for an inquiry as to plaintiff’s sanity. Defendant Love was asked if some one could be secured to remain with plaintiff over Sunday, and he replied that he knew of no one. The judge of probate then directed the defendant Halladay, who was sheriff of the county, to go out to the farm and take plaintiff into custody. Defendant Love did not urge plaintiff’s arrest, and stated to the judge of probate that all he wanted was protection. It was arranged between the defendant Love and the sheriff that the former was to be present at his home when the sheriff acted. The sheriff went to the farm, arrested plaintiff, took her to Charlotte, and kept her in jail from Saturday evening until Monday, when she was released.

It is urged that these facts conclusively show the participation of defendant Love in the arrest. We are of the opinion, however, that the testimony is open to inference which the jury drew, viz., that defendant Love confined himself to stating all he knew, and no more, to the public officials charged with the duty of taking action in the matter, and left them free to take such action as they thought best. The fact that the defendant Love was present when the arrest was made is of less significance than would otherwise attach to it, when it is considered that the place of his arrest was his own home.

It is next urged that the court was in error in charging that the jury would be limited in its award of added or exemplary damages, in a case where two defendants are jointly responsible for the injury to plaintiff, to such a sum as would constitute a just verdict against the least culpable. The plaintiff contends that the correct rule is the reverse of that given, and that the damages to be awarded in such a case is such a sum as would be just as against the most culpable. We find it unnecessary to discuss the authorities bearing upon this question, as it is evident that the finding of the jury that only defendant Halladay was liable eliminates this question. It could not be maintained that the bad faith of one not legally responsible for an imprisonment could be made the basis for an added award against the only one who is legally responsible but who acts in good faith.

Numerous assignments of error are directed to the rulings of the court in refusing requests, and to the charge as given upon the subject of damages. All have been considered, and no error is discovered. The charge fairly submitted the question of defendant Love’s responsibility for the arrest. The abstract instructions on the question ■of immunity from arrest could not have served any useful purpose, in view of the direct charge that the arrest was unlawful. The instructions as to added damages growing out of the wantonness or recklessness of defendant were sufficiently full.

The verdict does impress us as being very small, considering the circumstances of the arrest, but the remedy for any inadequacy in this respect was a motion for a new trial.

No error is found.

Judgment affirmed.

Moore, O. J., and Carpenter, Ostrander, and Hooker, JJ., concurred.


text:
    JEWELL v. JEWELL’S ESTATE.
    1. Principal and Agent — Relations—Evidence—Memoranda.
    A memorandum book kept by an agent in Ms own handwriting, in which are entries relating to his principal’s business, and covering a period of many years before and after the date of a settlement between them, the entries before the settlement being crossed out and those made thereafter not being so crossed, is competent evidence, after the death of the agent, of the nature and extent of the business relations between him and the principal; but its completeness is a question for the jury, and, as evidencing liability, only those entries after the settlement are to be considered.
    2. Same — Limitations.
    A right of action in favor of a principal to recover money collected by his agent, whose duty to remit is fixed without an accounting, accrues as soon as the money is paid to the agent.
    3. Limitations — Principal and Agent — Trust Relation.
    The relation between a principal and an agent who has ceased doing new business for his principal, and whose duty it is merely to collect and remit the money due his principal on outstanding mortgages, is not such a trust relation as .suspends the running of limitations.
    4. Same — New Promise — Sufficiency of Writing.
    A letter written by an agent to'his'principal, stating, “I have used the money and I want to turn out my property to make you all right,” constitutes a sufficient acknowledgment by the agent of the existence of a debt in favor of the principal to satisfy the statute (§ 9740, 3 Comp. Laws) requiring acknowledgments of debts to be in writing in order to postpone the running of limitations.
    5. Appeal and Error — Questions Considered — Theory Below.
    Where defendant requested a directed verdict on the ground that the claim was barred by limitations, and did not, either in his requests to charge or assignments of error, rais,e the question of the effect of testimony offered in proof of a writing which, if as represented, postponed the running of limitations, the judgment will not be reversed' because the truth of the testimony as to such writing was not submitted to the jury, and the trial court charged that limitations had no application to the case, though the charge was based on the erroneous theory that the relations of the parties were such as to preclude the running of limitations.
    Error to Newaygo; Palmer, J.
    Submitted January 19, 1905.
    (Docket No. 80.)
    Decided April 4, 1905.
    James M. Jewell presented a claim against the estate of Joseph B. Jewell, deceased, for money loaned by decedent as claimant’s agent. The claim was disallowed in the probate court, and claimant appealed to the circuit court. There was judgment for claimant at the circuit, and defendant brings error.
    Affirmed.

      Martin Bozema and Nims, Hoyt, Erwin, Sessions & Vanderwerp, for appellant.

      W. D. Fuller, for appellee.
   Ostrander, J.

Joseph B. Jewell, a resident of Newaygo county, Mich., died testate June 29, 1897, and on August 16, 1897, letters testamentary were issued. James M. Jewell, his brother, filed September 19, 1902, a claim against the estate, which is here set out, from the record, in full:

“State oe New York, ) County of Erie, > ss. Town of Evans. )
“James M. Jewell being duly sworn, deposes and says:
“ 1. That on or about the 15th day of May, 1877, he deposited with Joseph B. Jewell, late of the town of Sheridan, county of Newaygo, State of Michigan, the sum of $1,000, lawful money; the same to be loaned on unincumbered real estate, with first mortgage security.
“2. That he appointed the said Joseph B. Jewell, late of the town, county, and State aforesaid, his agent for the purpose of loaning said money, and, to that end, granted him a power of attorney, and that he afterwards at divers times transmitted certain other sums of money to be loaned in like manner.
“3. That said moneys were loaned as set forth in the bill of items annexed hereto, a copy of the same being furnished by the administratrix of the estate of the late Joseph B. Jewell, and purported to have been transcribed from the deceased’s books.
“4. That no part of said moneys was ever, to his knowledge or with his consent, loaned to the said Joseph B. Jewell, now deceased; that said agency has never been surrendered or revoked; and that no settlement has ever been made, nor any moneys paid over to him, by either the said agent, Joseph B. Jewell, now deceased, or by his heirs or administrators.
“James M. Jewell.
Subscribed and sworn to before me this 15th day o£ September, 1902.
“Horation P. Mueeitt,
[Notary Seal.] “ Notary Public.
“Evans, N. Y., September 17th, 1902.
“Estate of Joseph B. Jewell, as Agent, Fremont, Mich.
“To James M. Jewell, Dr.:
1890, Sept. 23d. Interest on Peter Omler mortgage $60 00
Interest on $60.00 two yrs. and six mos. __ 9 00
1891, Feb. 16th. Received on Frank Westgate mortgage----------------------....... 300 00
Interest on same to March 17th, 1893 ---- 37 50
1891, Mar. 8th. Received on Prank Westgate-mortgage.......... $57 00
Interest on same to Mar. 17th, 1893 ______ 6 84
■“ Mar. 28th. Received on Charlotte Briggs mortgage........ 297 47
Interest on same to Mar. 17th, 1893 ______ 17 88
1892, Jan. 22d. Received on Frank Westgate mortgage ----------------------- 308 00
Interest on same to Mar. 17th, 1893 ______ 21 00
■“ Mar. 15th. Received on Peter Omler mortgage ---------------------------------- 50 00
Interest on same to Mar. 17th, 1893 ______ 3 00
“ Mar. 8th. Received on Prank Westgate mortgage-------------------------------- 3140
Interest on same to Mar. 17th, 1893 ..1... 1 86
.1893, Peb. 1st. Received on Peter Omler mortgage 600 00 Interest on same to March 17th, 1893 ____ 4 50
■“ Mar. 17th. Received on Peter Omler mortgage 427 48
$727 48
Less N. Y. draft, 300 00
$427 48
Received on Prank Westgate mortgage................----------------- 137 00
$2,361 93
Interest 9 years and 6 mos._____________ 1,256 15
$3,618 08”

This claim was on December 20,1902, disallowed. Appeal was taken to the circuit court for Newaygo county, and, as the result of a trial in that court, a verdict and judgment for $2,254.02 in favor of claimant was entered. No testimony was offered on the part of the estate, and the substance of all the testimony given is in the record. At the conclusion of the case made by claimant, the court was requested to direct a verdict for the estate, for the reason, among others, “that under the undisputed evidence in this case the claim, if any ever existed, is barred by the statute of limitations of this State.” The motion was denied, and a single question of fact was submitted to the jury. They were required to find whether the money collected by decedent after September 5, 1890, had been paid to claimant.

A somewhat extended examination of the testimony is. necessary to a correct understanding of the case. Meager and unsatisfactory as in many respects it is, the testimony shows that claimant is a man upwards of 85 years of age, a retired farmer, living in the State of New York. In 1877, he began to lend money in Newaygo county, securing payment by real-estate mortgages running to himself; his brother, Joseph B. Jewell, acting for him in securing loans, taking and recording mortgages, and collecting interest and principal. The record of mortgages for Newaygo county shows a number of such mortgages to have been recorded, and during the period from 1883 to 1893 a number to have been discharged by decedent, who from November, 1881, had from claimant a written power of attorney to discharge and satisfy any and all mortgages “ belonging to me, the said James M. Jewell, and which may now be or hereafter come into the custody and care of the said Joseph B. Jewell as the said mortgages shall become paid.” Various remittances are shown to have been made to claimant, and various sums deposited to his credit in a local bank; and on September 5, 1890, on. a visit made by decedent to claimant, a settlement was made, and evidence of it put in writing, and signed by both parties. In June, 1902, a representative of claimant came to Michigan, and had an interview with the widow of decedent and with the executor of his estate; and he and the executor visited the judge of probate, and secured an order opening the estate for presentation of claims. Evidence of the nature of the relations of the parties was afforded principally by the records in the office of the register of deeds, by the written power of attorney, by certain letters, and by a memorandum book. Eight of these letters, written by decedent to claimant from May 28, 1878, to'February 14,188?, with their envelopes; two, dated respectively March 16, 1887, and March 25, 1893, written by claimant to decedent; and one other letter, with its envelope, dated November 30, 1881, written by decedent to Mrs. J. M. Jewell (Linda) — were, with the memorandum book, received in evidence, subject to objection. The memorandum book was found, after his death, among the papers of decedent. The entries in it were in the handwriting of decedent. The dates of the various entries are from August 25, 1881, to February 25, 1894. They relate, with the exception of the Linda Jewell loans, to the business of claimant, and áre records of the receipt and disbursement of claimant’s money. This book contains the memorandum, signed by both parties, of the settlement of September 5, 1890, and after that eleven entries concerning the business of claimant, and one of the business of Linda Jewell. The following are examples of the entries contained in it:

Aug. 25, 1881. J. M. Jewell, Cr., by interest on the Win. Martin note that was due on the 1st day of June,’81________________________________________ §25 00
Aug. 25th. J. M. Jewell, Dr., to cash paid to Bah- 25 00
Sept. 30. J. M. Jewell, Cr., by cash received on Martin mortgage .................................... 350 00
June 30th, 1882. J. M. Jewell, Dr.', to draft on 9th National Bank by registered letter_____________ 454 00
Oct. 18, 1882. Forwarded to J. M. Jewell certificate of deposit on Weber, Hewitt & Co.-bank, Fremont, §392.40, the same being interest on the Bill Beattie mortgage.

When this book was found, all entries down to the memorandum of settlement of September 5, 1890, were crossed in ink, as if of no further moment. Those entries made after September 5, 1890, are none of them so crossed. The letters and the memorandum book were competent evidence, as showing the nature, and, in some degree, the extent, of the business relations of these parties. The jury were instructed that it was for their consideration— that it was for them to say whether it was complete or incomplete. So far as evidencing any liability, they were told .to consider none of the entries in the book prior to the settlement of September 5, 1890. No error was 'committed in receiving this evidence, nor in the charge relating to it. There was testimony from persons who paid decedent money for claimant after September 5, 1890, and receipts for money so paid, signed by decedent, were in evidence. A daughter of claimant testified to the contents of a destroyed letter which she saw and read at her home, in Wisconsin, about April 1, 1897, upon an occasion when claimant and his wife visited her. It was a letter from decedent to claimant, and contained the statement, in substance, that decedent had used claimant’s money, and wished to turn out his property to make him all right. The last entry in the book showing receipt of money belonging to claimant is dated March 17, 1893. The last remittance of money to claimant, proved, was acknowledged by claimant in a letter dated March 25, 1893, and corresponds with the remittance of March 17, 1893, charged by decedent in the book.

The nature and legal effect of the relations existing between claimant and decedent is a question, and the principal question, debated by counsel. For appellant it is claimed that no such trust relations are shown as to take the case out of the operation of the statute of limitations; that, in any event, the agency of decedent was of such character that demand by the principal and accounting by the agent must be presumed to have occurred within a reasonable time after receipt of money by the agent.

When the settlement was made between these parties in 1890, the matters left in decedent’s hands were investments already made, upon certain terms, to persons known. No other funds thereafter came to decedent from claimant for investment. The duties of decedent thereafter were confined to the receipt and remittance of moneys to become due: The claim presented specifies the Peter Omler, the Frank Westgate, and the Charlotte Briggs mortgages only, as to each of which the principal sum, the rate of interest, and the dates of payment must be presumed to have been known to claimant. The Westgate mortgage, given in 1887, matured March 8, 1892. The other two mortgages were long past due in 1890. The Westgate mortgage was discharged by decedent March 7, 1893, as appears by the record. The others are paid, and the money was paid to decedent.' The .interest on the Westgate mortgage was payable annually; on the other two, semi-annually. The memorandum book shows that the decedent collected the following sums at the times Stated, viz.:

September 23, 1890 $60 00
February 16, 1891 . 300 00
March 8, 1891..... 57 00
March 28, 1891 .... 297 47
January 22, 1892 _. 300 00
March 15, 1892 .... 50 00
March 8, 1892 ..... 31 40
February 1, 1893 .. 600 00
March 17, 1893 .... 728 20
March 17, 1893 .... 137 00

— a total of $2,561.07; and all of these sums were collected upon the securities named. r The only sum shown to have been remitted was $300, in March, 1893, already mentioned.

Counsel for appellee claims, and we agree with him, that the testimony raises the presumption that the moneys collected by decedent had not been loaned again, and that the jury were justified in finding that decedent used all of the money collected after the settlement, excepting the amount of the single remittance. We think that, under the proofs, the charge of the court correctly stated the issue, and is in no respect open to criticism.

It was more than four years after the date of the last remittance shown before decedent died, and more than five years after his death that this claim was presented. Our statute of limitations, so far. as applicable to cases like this, bars action “six years next after the cause of action shall accrue.” 3 Comp. Laws, § 9728. Where a cause of action is fraudulently concealed, the statute limitation is not effective until two years after discovery of -the fraud. 3 Comp.'Laws, § 9739.

Conceding that the relation of principal and agent existed, claimant had a right of action at law against decedent for each of the several sums of money paid to him. No accounting was required. No equitable or other defenses could have been made to such actions. It seems to be the better rule, and better supported — although there is some conflict as to when a right of action accrues to a principal against his agent who collects his money — that, if the duty of the agent to remit is fixed, he is liable to an action for the money, and that a statute of limitations, worded as is ours, begins to run when action might be brought. P. P. Mast & Co. v. Easton, 33 Minn. 161. This in no way conflicts with the holding in Kimball v. Kimball, 16 Mich. 211, 219.

There is no occasion to consider in this case any question of what would be a reasonable time to make remittance or to discover the agent’s dereliction. The proofs show that decedent collected claimant’s money at periods running from 9 to 11 years before action brought.

Nor is the relation shown by the evidence such a trust relation as suspended the operation of the statute of limitations. In 2 Perry on Trusts, § 863, it is said — and numerous cases are cited — that, ‘ ‘ as between trustee and cestui que trust, in the case of an express trust, the statute of limitations has no application, and no length of time is a bar.” Manifestly, the author had in mind some definition of an “express trust,” which definition must be discovered in order to apply the rule he gives. He cites, for example, Kane v. Bloodgood, 7 Johns. Ch. (N. Y.) 90, a leading case, which arose in 1823, in which Chancellor Kent uses this language:

“I cannot assent to the proposition that all cases of direct and express trust, and arising between trustee and cestui que trust, are to be withdrawn from the operation of the statute of limitations, notwithstanding a clear and certain remedy exists at law. The word ‘trust’ is often used in a very broad and comprehensive sense. Every deposit is a direct trust. Every person who receives money to be paid to another, or to be applied to a particular purpose, to which he does not apply it, is a trustee, and may be sued either at law, for money had and received, or in equity, as a trustee, for a breach of trust. * * *
“The reciprocal rights and duties founded upon the various species of bailment, and growing out of those relations, as between ‘ hirer and letter to hire, borrower and lender, depositary and person depositing, a commissioner and an employer, a receiver and a giver in pledge,’ are all cases of express and direct trust. * * *
“Are all such cases to be taken out of the statute of limitations, under the notion of a trust, when one of the parties selects his remedy in this court [court of equity] ? A review of the decisions will enable us, as I apprehend, to deduce from them a safer and sounder doctrine, and to establish, upon the solid foundations of authority and policy, this rule: That the trusts intended by the courts of equity not to be reached, or affected by the statute of limitations are those technical and continuing trusts which áre not at all cognizable at law, but fall within the proper, peculiar, and exclusive jurisdiction of this court.”

There follows an exhaustive review of the English and earlier New York cases. As supporting the rule above stated, Angelí on Limitations, § 166; Farnam v. Brooks, 9 Pick. (Mass.) 242; Robinson v. Hook, 4 Mason (U. S.), 152; McClane’s Adm’x v. Shepherd’s Exec., 21 N. J. Eq. 76; Hayward v. Gunn, 82 Ill. 385; Cook v. Woodley, 2 N. J. Eq. 209; Cone v. Dunham, 59 Conn. 145 (8 L. R. A. 647, and note); Boyd v. Fire Ass’n, 116 Wis. 155 (61 L. R. A. 918); Merton v. O’Brien, 117 Wis. 437; Buttles v. De Baun, 116 Wis. 326. The opinions filed in these cases cite — each of them — a large number of other decisions, and a number of these have been examined. The variations, so far as facts are concerned, are infinite, and the rule is often loosely stated.

In Merton v. O’Brien, supra, it is said:

“ It is frequently said in the authorities that in case of an express trust, as between trustee and cestui que trust, the statute of limitations does not apply. This language is not accurate, and may be very misleading.”

The case of Shepherd v. Shepherd’s Estate, 108 Mich. 82, is the only case determined by this court in which the question was raised as it is here raised. In that case it appeared that decedent was, until his death, the general agent of claimant, and had control and management of Ms business at Charlotte, Mich.; signing Ms principal’s name to notes, making settlements for him, having entire •charge of his books, and generally exercising authority without limitation. The court found that this business was in the hands of decedent, a trust estate, and the continuance of the trust was interrupted only by the death of the agent. No accounting had ever been had. -It is true that the principal presented his claim to the commissioners •on claims in probate court, and on appeal the matter was referred by the circuit court, on stipulation, to referees, who seem to have occupied 46£ days, each, in making and stating an account. It was apparently a matter which, if settled in the lifetime of decedent other than amicably, would have required the interposition of a court of equity. The case is not an authority for claimant here.

We should agree with counsel for appellant that the statute of limitations had barred this demand if it were not for the effect to be given the letter about which the witness Ina Brodie gave testimony. She says that from about April 1, 1897, until some time in October, 1897, her father, the claimant, and Ms wife, visited her at her home in Wisconsin; that while there her father received a letter from his brother, decedent, written a few weeks before his death, in regard to these matters; that she saw and read the letter; that, after the departure of her father and mother, she found this letter in the room they had occupied, and destroyed it. She testified that she saw the envelope in which the letter came; that the letter was from Fremont, the home of decedent; that she knew decedent’s handwriting; and that the letter was in his handwriting. Asked to state the contents of the letter, objection was made by counsel for the estate, and this objection is the ground for the fourth assignment of error. This assignment is abandoned in this court, and we treat the testimony called for as properly admitted. The letter contained the statement: “I have used the money and I want to turn out my property to make you all right.” This witness also testified that many letters passed between claimant and decedent while claimant was at her house. We are of opinion that if this letter, containing the matter stated, was written and received as testified to by this witness, there was a sufficient acknowledgment of the demand to which consideration was limited, within ^ the meaning of 3 Comp. Laws, § 9740; Rumsey v. Settle’s Estate, 120 Mich. 372.

The ruling of the trial court to the effect that the statute of limitations was no bar was not put upon the ground that the running of the statute had been interrupted, but upon the ground that the relations of the parties was such as to preclude the running of the statute. Upon this point, namely, the reason for the ruling, we do not agree with the learned trial judge, and do agree with counsel for appellant. We are therefore obliged to consider whether, because the matter of the truth of this testimony was not submitted to the jury, we should reverse the finding of the jury and order a new trial. Counsel for appellant do not ask for a reversal upon this ground. Indeed, this letter and the effect of it are not at all discussed in their brief. The contention on the part of the estate is that there was no question for the jury. The requests to charge do not raise the point, nor do the assignments of error. We conclude, therefore, that we must hold that no error was committed in instructing the jury that the statute of limitations had no application.

The claim was properly allowed. Claimant will recover costs of this court.

McAlvay, Grant, Blair, and Montgomery, JJ., concurred.