text:
    SNYDER v. SNYDER.

    1. Parent and Child — Transfer of Property — Bona Fides— Borden of Proof.
    A son who is the confidential adviser of his old and ignorant mother, and has entire authority and control over her business, has the burden of showing the bona fides of an assignment of mortgage made by her to him.
    2. Gift Inter Vivos — What Constitutes.
    To constitute a valid gift inter vivos, it must take effect at once, and pass entirely beyond the control of the donor.
    3. Same — Assignment of Mortgage.
    An assignment of mortgage, given upon the understanding that payments made on the mortgage during the lifetime of the assignor should belong to her, the amount unpaid at her death to go to the assignee, cannot be sustained as a gift inter vivos.

    4. Equity Jurisdiction — Setting Aside Conveyances of Decedent-Parties — Appointment of Administrator.
    Equity has jurisdiction of a suit by the heirs of a decedent to set aside a deed made by him, a mortgage back, and a subsequent assignment of the mortgage, and, on finding the deed and mortgage to be valid and the assignment void, will retain such jurisdiction to permit complainants to procure the appointment of an administrator and make him a party to the suit, that the mortgage may be turned over to him.

      Appeal from Hillsdale; Winsor, J., presiding.
    Submitted October 8, 1902.
    (Docket No. 22.)
    Decided December 2, 1902.
    Bill by William Snyder, John Snyder, and others against Benjamin F. Snyder and Thomas C. Snyder to set aside a deed and an assignment of a mortgage. From a decree dismissing the bill, complainants appeal.
    Affirmed as to defendant Benjamin, and reversed as to defendant Thomas.
    Jacob Snyder and Elizabeth Snyder, his wife, came to Michigan in 1851, and settled upon a farm of 10 acres in Hillsdale county, where they lived during their lives. They had five children, — complainants William and John, defendants, Benjamin and Thomas, and a daughter, Amelia, the mother of the other complainants. They were the sole heirs at law of said Jacob and Elizabeth. Jacob died in October, 1886, and Elizabeth in May, 1899. The title to the 10 acres was in Elizabeth. Both of them were illiterate, neither being able to write or read writing. At the time of Jacob’s death, the farm was worth about $3,300. John was then working the farm under a lease, his father and . mother living with him. Mrs. Snyder soon after went to live with the defendant Benjamin. John and Elizabeth did not agree, and John, soon after his father’s death, left the farm. March 5, 1886, Mrs. Snyder executed a power of attorney to defendant Thomas, giving him entire authority and control over her business affairs. On April 7, 1888, Mrs. Snyder deeded the land in question to the defendánt Benjamin for an express consideration of §1,600, and the further consideration expressed in the deed in the following language:
    ‘ ‘ Besides the above amount, one thousand six hundred dollars, the party of the second part is to maintain, clothe, and support in a respectable manner the said Elizabeth Snyder, of the first part, during her natural lifetime. All doctors’ bills and funeral expenses is to be credited on his .notes paid by him.”

      At the same time he gave back to her a mortgage upon the land for $1,600, and a promissory note, due six months after her death. The mortgage contained the following provisions:
    “Besides the above amount, one thousand six hundred dollars, the parties of the first part is to maintain, clothe, and support in a respectful manner the said Elizabeth Snyder, of the second part, during her natural lifetime. All doctor bills and funeral expenses is to be credited on his notes paid by him. * * * Said note to become due six months after the death of said Elizabeth Snyder, and all moneys paid by him to be credited on his note.”
    On January 18, 1893, defendant Thomas placed upon record a pretended assignment of this mortgage from his mother to him, dated May 29, 1888. After the death of Mrs. Snyder, complainants filed this bill to set aside said deed, the mortgage, and the assignment thereof, on the ground of undue influence *by the defendants, and the incompetency of Mrs. Snyder to execute them. The bill prays that the deed may be set aside, but, if that should be found to be valid, that the assignment of the mortgage to defendant Thomas be set aside and declared void. Testimony was taken in open court, and decree entered dismissing the bill.

      B. E. Sheldon and O. A. Shepard, for complainants.

      Sampson & Barre, for defendants.

       Rehearing denied February 2, 1903.

   Grant, J.

(after stating the facts). 1. The circuit judge saw the witnesses, whose testimony in regard to the alleged incompetency of Mrs. Snyder is in direct conflict. Neither of the defendants testified. Perhaps their testimony would have been of little avail on the question of her mental condition, on account of the bitter feeling existing between complainants and defendants. We are not able to say that the preponderance of evidence is with the complainants upon this question, as well as upon the question of undue influence, and are constrained, -therefore, to sustain the finding of the circuit judge.

2. We cannot, however, concur with him that the assignment of the mortgage and the note by Mrs. Snyder to defendant Thomas was a gift inter vivos. It is not claimed that Thomas paid a valuable consideration. The record is barren of any evidence explaining the circumstances of the assignment, or tending to show any gift to him. A disinterested witness, whose testimony is unimpeached by anything in the record, testified that Mrs. Snyder once said to him, “They say I have signed away that mortgage, but I never knew I didand that defendant Benjamin also ‘ ‘ told him that his mother told me the same thing. ” Benjamin does not deny this. The notary who took the acknowledgment is the sole witness called to prove the assignment. He has no recollection whatever of its execution, and the sole knowledge he has is the fact that his name appeal's to the acknowledgment, as well as a witness. The other witness to the assignment was not called. The silence of Benjamin and Thomas is significant, and is very conclusive that they are .acting in concert. Mrs. Snyder was then 76 years old, and ignorant. She had already given a power of attorney to Thomas to manage her business. He was evidently her adviser and manager, and stood in very confidential relations with her. The duty, therefore, devolved upon him to explain the circumstances of that transaction, and to show its bonafides. He kept silent when he should have spoken. The law does not permit him, under such circumstances, to retain this property.

It was not a gift inter vivos under the allegation in the defendants’ answer, which is the sole reference upon the record to a gift. The allegation reads thus:

“That, soon after the sale of said lands to the said Benjamin F. Snyder by their mother, she caused to be prepared and executed said assignment, and then said to the said Thomas C. Snyder that she desired him to accept the same upon the following terms and conditions: That all moneys paid on such note and mortgage during the life ■of said mother should be paid over to her for her own use, and that whatever sum should remain unpaid at her death, if any, should be the property of said Thomas C. Snyder. That she further said that she did this because of the fact that the said Thomas C. Snyder had paid off two mortgages on said land from money earned by him in the army, and that in consideration of that fact she desired him to have what property she had, if any, at her death.”'

This allegation was specifically denied in the replication. No testimony was offered to support it. It appears to be the sole basis for the finding of the court below that this was a gift inter vivos. To constitute a valid gift inter vivos, it must take effect at once, and pass entirely beyond the control of the donor. The retaining of any control in the hands of the donor over the subject of the gift renders it invalid. Thornt. Gifts, § 76; Holmes v. McDonald, 119 Mich. 563 (78 N. W. 647, 75 Am. St. Rep. 430),— where we held that the jus disponendi must be placed beyond the power of the donor to recall. See, also, 14 Am. & Eng. Enc. Law (2d Ed.), 1014 et seq. Under defendant Thomas’ own statement in his answer, his mother retained the entire control over this gift, and had the right to retain as her own all sums that Benjamin paid to her or to Thomas during her lifetime. She could collect and use the entire amount. It follows that this assignment must be held void.

3. No administrator has been appointed over the estate of Mrs. Snyder, and it is insisted that the administrator is the only person who can test the validity of the assignment. We cannot concur in this view. The equity court is the proper forum in which to test the validity of the deed, mortgage, and assignment. Having obtained jurisdiction, it will retain it for the purpose of deciding all questions in controversy.

The decree is affirmed as to defendant Benjamin, reversed as to Thomas, the assignment set aside and held for naught, and the cause remanded, with permission to the complainants to procure the appointment of an administrator, make him a party to the suit, and the mortgage turned over to him for foreclosure. The complainants will recover costs of both courts as to defendant Thomas.

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


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    DETROIT & BIRMINGHAM PLANK-ROAD CO. v. OAKLAND RAILWAY CO.
    1. Street Railways — Right of Way — Plank Roads — Encroachments — Construction of Contract.
    A plank-road company, granted an electric-railway company permission to build a second track between the roadway and the fence, in such a manner as not to encroach upon the roadbed; and if, at any place, it should be necessary to construct the track so near the roadway as to encroach upon it, then the railway company should extend the roadbed upon the opposite side. Held, that the purpose of the contract was to enable the railway company to double-track its road, and that necessary encroachment upon the traveled portion of the highway was contemplated.
    2. Same — Injunction—Remedy at Law.
    A street-railway company which has obtained from a plank-road company permission to lay its track in the highway in such a manner as not unnecessarily to encroach upon the roadbed will not be enjoined, at the instance of the plank-road company, from making an alleged unnecessary encroachment, as there is an adequate remedy at law.
    Appeal from Wayne; Frazer, J.
    Submitted October 14, 1902.
    (Docket No. 24.)
    Decided December 2, 1902.
    Bill by the Detroit & Birmingham Plank-Road Company against the Oakland Railway Company to enjoin the laying of certain track. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Frank B. Leland and Ralph L. Aldrich, for complainant.

      Brennan, Donnelly & Van De Mark and Fred A. Baker, for defendant.
   Moore, J.

This is an injunction bill. After a full hearing it was dismissed. The complainant has brought the case here by appeal.

The appellant is a plank-road company, owning and operating a plank or gravel road extending from the city limits of the city of Detroit to the village of Birmingham, along the continuation of the street in the city of Detroit known as “Woodward Avenue.” Prior to the 1st of March, 1899, the parties entered into a contract by which complainant granted to defendant certain rights, which need not be mentioned in detail. After this contract was made, defendant constructed and operated a single-track railway from Detroit to Pontiac.

March 21, 1899, another contract was made between them, the material parts of which, so far as they relate to this controversy, read as follows:

“ Thai Whereas, second party now owns and is operating a single-track electric or street railway between a point about 246 feet north of the Kanady road, so called, on the line of Woodward avenue, extended, and a point in Birmingham, which is the northerly terminus of first party’s right of way; and
Whereas, second party desires to construct a second electric or street railway track between a point about 246 feet north of the Kanady road, so called, on the line of Woodward avenue, extended, and a point in the village of Birmingham, which is the northerly terminus of the first party’s right of way, upon a private right of way which it has purchased and is purchasing adjacent to the highway controlled by the first party, and through the village of Birmingham, and perhaps at one or two other points, to encroach upon the right of way of said first party; and * * * .
“Note, therefore, in consideration of the payment in cash hereinafter mentioned by second party to the first party to this instrument, said first party hereby agrees to permit as aforesaid, and make no objection or not to obstruct the second party, or its assigns, from constructing, maintaining, and operating said second electric-railway track; said second electric-railway track, where it is built upon the highway, except in the village of Birmingham, to be constructed between the roadbed of said highway and the fence in such a manner as in no way to encroach upon said roadway, or hinder the public travel thereon, nor to obstruct or damage any public or private approach to said toll road. It being mutually agreed that if, at any place, it shall be necessary to construct said second electric-railway track so near the roadbed as to cause any damage or encroachment upon said roadbed, second party shall, at its expense, but under the supervision and direction of first party’s foreman, whose time shall be paid for by the second party, extend the roadbed as far upon the opposite side of the roadway as it encroaches upon it with its track or grading; such newly-built portion of the highway to be constructed in a substantial and satisfactory manner, and left in as good condition as that part of the roadway which is appropriated. And second party further agrees that, in constructing said second electric street-railway track, it will at all times have regard for the safety and convenience of teams passing along said highway, and at all places along said highway will leave ample and sufficient room for the free passing of each other by teams drawing loaded vehicles; it being the undertaking of second party in this regard that it will not in any way interfere with the safety or convenience of the traveling public which have occasion to use the toll road owned and controlled by first party.
“ It is further mutually agreed that, contemporaneously with the paving of any portion of the highway now maintained as a gravel road by the party of 'the first part, the two tracks, or either of them, of the party of the second part, may be moved to the center of the street, and there laid and constructed in accordance with the usual methods of laying track in paved streets. * * *
“If at any time said electric road shall cease to be operated by electric power, or by any other power permitted upon the streets of the city of Detroit, this agreement shall be null and void.”

Some time prior to the commencement of this suit, the «defendant had conveyed its single track and its rights through the village of Highland Park to the Detroit Citizens’ Street-Railway Company. The village decided to pave this street, from Detroit through the village to its northern boundary, known as the “Six-Mile Road.” Double tracks were l^iid through the center of this street to the Six-Mile road, and it became necessary to connect these tracks with the single track running north from the Six-Mile road, which track was laid on the westerly side of the highway, and west of the traveled portion thereof. In November, 1899, the defendant entered upon the work of making this connection. Complainant claimed it proposed to do it in an improper manner, and filed this bill, asking for an inj unction. The application for a preliminary inj unction was refused. At about this time the solicitors for the respective parties had a conference with a view of reaching an amicable adjustment. A map or plat had been prepared by a civil engineer at the request of complainant. This plat was indorsed, “Plat accepted,” and signed by the solicitors for the respective parties, both of whom say an agreement of settlement was then reached. The defendant was to pay $42 for the expense of making the plat and other expenses which had then accrued. A day or two thereafter a check was sent for the amount. Later it was returned by complainant, it contending that the connection was not made according to the lines drawn upon the plat, while it was the claim of defendant that the connection was made according to the terms of the plat. Afterwards a hearing was had, and proofs taken. The circuit judge was of the opinion there had been no violation of the terms of the contract, and, if there had been, that complainant had an' adequate remedy at law, and dismissed the bill of complaint.

The controversy arises over the making of the connection between the double track at the Six-Mile road and the single track north of that point. It is the claim of complainant that, before the double tracks were extended to the north boundary of the village, the connection was made within 171 feet, and that the new connection could have been made within the same distance, but that defendant did not do so, but encroached unnecessarily upon the traveled portion of the road, by taking 440 feet in which to make this connection, and that, when the agreement was made between the attorneys, the plat showed the connection was to be made within 171 feet. It is the claim of defendant that the only purpose of making the second agreement was to enable it to double-track its road; that, when the bill was filed, it had done so from Birmingham to a point less than a mile north of the Six-Mile road, and that it had the rails distributed between these points, and intended, as soon as it could, to complete the double track, and that the plat presented when the agreement between the attorneys was reached, showed, in red ink, how the connection would be made when the double track was completed, and that the connection was made, having the plat, and the fact that the double track was to be completed to the Six-Mile road, in mind; and that defendant has done nothing not justified by the contract.

"Without going into detail, we are satisfied that the purpose of the contract was to enable defendant to double-track its road. To do this, it was contemplated it might be necessary to encroach upon the traveled portion of the highway. We are not satisfied from the testimony that defendant has unnecessarily encroached upon the traveled portion of the highway, but, if it has done so, the complainant has an adequate remedy at law. We decline to express any opinion as to whether the defendant ought to build the double track west of the existing track, for the reason that it is not necessary to do so, and for the further reason that all the parties in interest are not before us.

The decree is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


author: Montgomery, J.

text:
    BEDELL v. DETROIT, YPSILANTI & ANN ARBOR RAILWAY.
    Street Railways — Injury to Traveler on Highway — Contributory Negligence — Subsequent Negligence op Depend-ant.
    Plaintiff’s intestate rode along the highway on his bicycle for a considerable distance in dangerous proximity to the track of an electric railway, and in plain view of the motorman of a car coming from behind, and finally dismounted on the track, and was struck by the car and killed. He was signaled to and warned by his companions, but, apparently from deafness, did not understand the signals, and was not aware of his danger. Held, that his negligence would not preclude a recovery against the company, if, in view of all the circumstances, the motorman was negligent in the management of the car.
    Error to Washtenaw; Kinne, J.
    Submitted October 16, 1902.
    (Docket No. 71.)
    Decided December 2, 1902.
    Case by Aretus A. Bedell, administrator of the estate of Aretus Alfred Bedell, deceased, against the Detroit, Ypsilanti & Ann Arbor Railway, for negligently causing the death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Corliss, Andrus, Leete & Joslyn, for appellant.

      A. J. Saivyer & Son, for appellee.
   Montgomery, J.

This is an action for negligent injury, and the case may be described and the law laid down by the court understood best by an extract from the charge of the court, as follows:

“The case here is not one arising upon a street crossing, which has been a very fruitful source of litigation, but the situation is one where the decedent was riding upon his wheel in the public highway, close by the side of the defendant’s railway, and was overtaken and killed by a car coming from behind. It is sometimes said, very correctly, that, if one discovers another to have been negligent, he must take precautions accordingly, omitting which, he is liable to the other for the damages which follow from his own want of care, for, however related the separate negligences may be, the one cannot bar an action for the other, unless it be contributory; and, though an unseen position might contribute to an accident, a discovered one cannot.
“ The decedent, Mr. Bedell, was not a trespasser upon the street-car tracks, in any sense. The right of the street railway in the street is only to use it in common with the public. It has no exclusive right of travel, even upon its track, and it is bound to use the same care in preventing a collision as the driver of a wagon, or any person crossing or entering upon the railway. Street cars have precedence, necessarily, in the portion of the way designated for their use. This superior right must be exercised, however, with proper caution, and a due regard for the rights of others; and the fact that it has a prescribed route does not alter the duty of the defendant railway company to the public, who have the right to travel upon its track until they are overtaken by its cars. In this case there is no dispute but that the motorman saw the decedent, Mr. Bedell, for some time and for a considerable distance before he overtook and struck him with the car. It is undisputed that the motorman saw the decedent riding upon his wheel along a path in very close proximity to the track of the railway company. It is in dispute, however, whether the bell or gong was rung by the motorman. The motorman himself testifies that the decedent gave no indication that he heard the bell or gong of the rapidly approaching car until it was too late to escape disaster.
“Applying some of these principles to the facts in this case, I instruct you that if the decedent, Mr. Bedell, by reason of being upon his wheel, with his back to the approaching car, and apparently giving no indication of any knowledge of the warning given him by the motorman, was rhanifestly in a place of imminent danger when and as seen by the motorman, then it became the duty of the motorman to run his car with corresponding care, and in a manner reasonably safe under those circumstances, both as to speed and as to the control of his car; and if, under these circumstances and such duty, the motorman intentionally ran his car, or recklessly or wantonly allowed his car to run, at what he knew was a high and dangerous rate of speed, and in reckless disregard of safety and the consequences to the decedent, although with no thought or intention to injure any one, and if, by reason of such reckless and wanton conduct on the part of the motorman, the decedent, Mr. Bedell, was struck and killed, then I think that the railway company was to blame, and the defendant is liable in this action for whatever damages plaintiff received.
‘ ‘ If the decedent, Mr. Bedell, was not in a place of danger, as seen by the motorman, then the defendant would not be liable. If the car was not running at a high rate of speed, which the motorman knew, and a reasonable man ought to have known, to be dangerous and improper under the circumstances, then the defendant would not be liable. If the railway company, through its servants, was not wanton or reckless under the circumstances, it is not liable. Whether or not the railway company is liable, you are to determine from the evidence. In other words, you are to determine from the evidence whether or not the plaintiff has shown, by a fair preponderance of the evidence, that under the facts and circumstances known and apparent to the motorman, and in view of the situation as it appeared to him, this car was run at a high and dangerous rate of speed, with reckless and wanton disregard of consequences, and whether or not this accident was caused thereby. ' If these things have not been so shown, the defendant is not liable; if they have not been established, then the defendant is not liable.
“ If you find from the evidence that no bell or gong was rung or sounded, this would be an act of negligence on the part of the defendant company. If you should find from the evidence that the motorman was aware that the decedent, Mr. Bedell, was deaf, and knew that the person riding upon the wheel in front of the car was Mr. Bedell, this knowledge would impose upon the motorman the duty of greater care and caution in the movement and control and handling of his car.”

These instructions embodied the law as established by previous rulings of this court. See Montgomery v. Railway Co., 103 Mich. 60 (61 N. W. 543, 29 L. R. A. 287); Tunison v. Weadock, 130 Mich. 141 (89 N. W. 703), and cases cited. The only question which can fairly be made upon this record is whether the facts justified the submission of the question to the jury in the form adopted by the circuit judge. It is contended by the defendant that the evidence shows that the decedent was signaled by his companions, and warned of the danger. This is doubtless true, but.it is also apparent that the decedent did not understand the signals given, and there was testimony from which the jury might have inferred that the motorman observed that these signals were not being understood or observed by decedent.

The defendant also contends that the case is one like Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007), namely, an attempt to cross the track, unexpected and sudden. But the present case differs from that in this: That for a considerable distance the decedent, while pursuing his way on his bicycle, ahead of and in the same direction in which the electric car was going, was near enough to the track to be in a place of danger; and this within the observation of the motorman. There was testimony, therefore, bringing the case within the rule of the cases first above cited, and, as the only error relied upon is the refusal of the circuit judge to direct a verdict for the defendant, the judgment will be affirmed.

Hooker, C. J., Moore and Grant, JJ., concurred.


author: Grant, J.

text:
    DUTCHER v. GRAND RAPIDS FIRE-INSURANCE CO.
    1. Attachment — Affidavit—Validity.
    An affidavit in the alternative for a writ of attachment is void.
    2. Same — Jurisdiction—Waiver.
    In an attachment proceeding in justice’s court, the affidavit is jurisdictional, and, if void, the whole proceeding falls with it, unless the defect is waived by an appearance.
    3. Same — Evidence—Collateral Attack — Docket Entries.
    An affidavit for a writ of attachment in justice’s court may be introduced in evidence, in a collateral suit, to show the invalidity of the attachment judgment, as against an objection that the docket entries are conclusive.
    4. Garnishment — Payment—Protection oe Garnishee.
    A garnishee is not protected in paying a judgment against him, if the judgment in the principal suit is void.
    Error to Kent; Perkins, J.
    Submitted October 17, 1902.
    (Docket No. 58.)
    Decided December 2, 1902.

      Assumpsit by George L. Duteher against the Grand Rapids Fire-Insurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    The defendant issued a policy of insurance to one Riley. A loss occurred, and the amount thereof was duly ascertained and admitted. Subsequently one Heald commenced a suit against Riley in justice’s court, and garnished the defendant company. The defendant Riley could not be found, and plaintiff commenced attachment proceedings under the statute (1 Comp. Laws, § 717). There was no service of summons or writ upon, and no appearance of, the defendant in the attachment suit. The day following the commencement of that suit, plaintiff served on defendant a notice of his assignment from Riley. Such proceedings were had that judgment was finally rendered against the principal defendant and against the garnishee defendant, and the judgment paid by it. Plaintiff brought this suit to recover the amount of the loss. It was tried before the court without a jury, finding of facts made, and judgment rendered for the plaintiff.

      Stuart & Heald, for appellant.

      Smedley & Corwin, for appellee.
   Grant, J.

(after stating the facts). Defendant introduced the entries upon the docket of the justice of the peace, and rested. Plaintiff then offered in evidence the files in the case, including the affidavit upon which the writ of attachment was based. Defendant objected, insisting that the docket entries were conclusive, and could not be impeached by the introduction of the files. The affidavit was admitted. Defendant introduced evidence tending to show that the affidavit found in the files of the case was not the affidavit upon which the writ was issued. The court found against this contention. The evidence was 'conflicting. We cannot, therefore, disturb the finding.

Statutory attachment proceedings are in derogation of the common law, and the proceedings thereunder must be strictly complied with. The affidavit was in the alternative, and is conceded to be void, under Kegel v. Schrenkheisen, 37 Mich. 174. The affidavit in these proceedings is jurisdictional, and, if the affidavit is void, the whole proceeding falls with it. Jurisdiction will not be presumed. Defendant was required to show a valid affidavit for the attachment and judgment under which it claimed protection. Goodrich v. Burdick, 26 Mich. 39. The affidavit was not offered to impeach the record. The entry did not assert its validity. Without a valid affidavit, the court does not obtain jurisdiction, unless the jurisdictional defect is waived by general appearance.

Judgment affirmed.

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


text:
    FREDONIA NATIONAL BANK v. TOMMEI.

    1. Evidence — Second Deposition — Discretion op Court.
    The admission of a second deposition, taken after due notice, to bring out facts not shown in the first deposition, rests in the discretion of the court, and is not ground for reversal.
    2. Bills and Notes — Banks—Discount—Purchase for Value.
    A bank which discounts a promissory note, crediting the proceeds to the indorser’s account, which becomes exhausted before the maturity of the note, is a purchaser for value, notwithstanding the indorser subsequently has deposits equal to the amount of the note.
    3. Same — Bona Fide Purchaser — Fraud—Evidence.
    In an action on a promissory note, where plaintiff makes a prima facie showing of bona fide purchase, evidence of fraud in the inception of the note is properly excluded until defendant has introduced some evidence of malafides.

    Error to Houghton; Streeter, J.
    Submitted November 18, 1902.
    (Docket No. 92.)
    Decided December 2, 1902.

      Assumpsit by the Eredonia National Bank against Paul Tommei on certain promissory notes. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.
    This is a suit upon two promissory notes, — one dated December 20, 1900, for $300; the other dated February 19, 1901, for $328.25; both executed by the' defendant to the order of White & Flagg. White & Flagg were manufacturers of grape juice and wine in Fredonia, N. Y. Mr. Flagg sold to the defendant 75 barrels of grape juice on December 20th, for which he received two notes. The one dated February 19th is a renewal for one of the same amount dated December 20th. These notes were indorsed by White & Flagg, and were discounted by White at the plaintiff’s bank. The proceeds were placed to his credit, and the entire amount checked out. White on two or three occasions overdrew his account before the notes became due. White & Flagg were held as indorsers. The defense set up with the plea was that the sale was illegal because White & Flagg had procured no license to •sell wine in Michigan, and that the wine or grape juice was worthless.
    The testimony of White and Flagg and the cashier of the bank was taken by deposition at Fredonia, N. Y. All three testified to the purchase of the notes by the bank. White’s account with the bank was also introduced, showing the credit given to him. The court held that the evidence on the part of the plaintiff established the fact that it was a bona fide purchaser for a valuable consideration, and refused to permit the defendant to show the character -of the wine or grape juice, or that White & Flagg had taken out no license from this State to sell liquor, until he had introduced evidence tending to show that plaintiff was not a bona fide purchaser. This he failed to do, and the court directed a verdict for the plaintiff.

      M. E. Louisell (Larson & Galbraith, of counsel), for .appellant.

      Hanchette & Lawton, for appellee.

      Rehearing denied March 9, 1903.

   Grant, J.

(after stating the facts). 1. A second deposition of the cashier was taken, after due notice, in Fredonia. Counsel for the defendant objected to the introduction of this deposition in evidence. Its admission rested in the sound discretion of the court, in the same manner as the recall of a witness for further examination rests in its discretion. The second deposition was taken mainly to show the condition of White’s account, which was not given in the first deposition. We think there was no error in admitting it.

2. We think the evidence on the part of the plaintiff conclusively established that it was a bona fide purchaser of these notes. It paid for them by crediting the amount thereof upon White’s account, and permitting him to check It all out before their maturity. Defendant gave notice of fraud in the inception of the notes. Plaintiff then assumed the burden of showing bona fides. It was then incumbent upon defendant to first show some evidence of mala fides, before introducing evidence of fraud. The case is within Drovers’ Nat. Bank v. Blue, 110 Mich. 31 (67 N. W. 1105, 64 Am. St. Rep. 327). It was immaterial that subsequently White, who kept his account at the bank, had deposits equal to or exceeding the amount of these notes.

The judgment is affirmed.

The other Justices concurred.


author: Hooker, C. J.

text:
    SCHULTE v. AUDITOR GENERAL.
    Taxation — Void Salís — Resale—Certifícate of Error.
    A sale of land to the State for a delinquent tax of 1887 was set aside by the circuit court in 1890 because there was no dollar sign in the decree, and in May, 1901, the land was again sold by the auditor, general for the same tax. In January, 1901, the owner of the original title procured a statement from the county treasurer that there was no tax of record against the premises, and in September, 1902, petitioned the auditor general for a certificate of error against such sale, under subdivision 4, § 98, of the tax law (1 Comp. Laws, § 3921), providing for the issuance of such certificate by the auditor where a certificate that no taxes were charged against the property has been given by the “proper officer” within the time limited by law for payment or redemption. In denying the owner’s right to such relief, held:

    (1) That the right to pay the tax to the county treasurer under sections 58 and 59 ceased on the original sale to the State, and hence such treasurer was not the proper officer to issue the certificate referred to in section 98.
    (2) That, such sale having been declared void because of a technicality not affecting the validity of the tax, the auditor was justified in reselling the land under section 188, Act No. 169, Pub. Acts 1899.'

      Mandamus by Frank A. Schulte to compel Perry F. Powers, auditor general, to issue a certificate of error.
    Submitted November 11, 1902.
    (Calendar No. 19,635.)
    Writ denied December 2, 1902.

      Keena & Lightner, for relator.

      Horace M. Oren, Attorney General (Charles W. McGill, of counsel), for respondent.

      Thomas, Cummins & Nichols, for William O’Connor, claimant under tax deed.
   Hooker, C. J.

Schulte claims to be owner of the original title to premises described in his petition, having purchased them on January 15, 1900, for the benefit of and in trust for the People’s Savings Bank of Detroit, taking them subject to a mortgage held by said bank, dated June 28, 1897. He is in possession. In 1887 a reassessed drain tax was included in the taxes for that year, the same having been originally assessed in 1882. In default of payment of this reassessed tax, the property was bid in for the State at a tax sale held for that year. This sale was declared void in the year 1890 by the circuit court for the county of Oakland. In 1900 the auditor general repetitioned, and included this land in the tax sale held in 1901, when the premises were purchased by O’Connor.

On September 6, 1902, petitioner (Schulte) applied to the auditor general for a certificate of error under section 98 of the tax law (Act No. 206, Pub. Acts 1893), said petition being made upon the ground “that a certificate that no taxes were charged against said lands had been given by the proper officer within the time limited by law for the payment or redemption thereof. ” The circumstances relied on, as stated in the petition, are that in March, 1897, when the bank proposed to take the mortgage referred to, the relator, as vice-president of the bank, sent the abstract of title of the land to the persons engaged in making and selling abstracts of title in the county where the land is situated for certification, and received back from them a tax statement, showing a cancellation of the tax of 1887 by the circuit judge, and a further certificate that the taxes for 1895 had been paid. Subsequent to January, 1899, he received a certificate from the same persons, in answer to a letter of January 14, 1899, asking for the amount of taxes outstanding for the years 1896, 1897, and 1898, which certificate showed that the taxes for those years were marked “Paid,” except those for 1898, and that the roll for that year was not in the hands of the county treasurer. In January, 1901, relator’s agent sent to relator a letter from the county treasurer stating that “ there is no tax of record against” the premises. “For 1900 tax write township treasurer.” The tax for 1900 — $23.64—was subsequently sent the town treasurer. On November 27, 1901, relator’s agent wrote the county treasurer to advise him of the amount of taxes due for the years 1899 and 1900, and received answer that “taxes of 1899 and 1900 are paid.”

On June 15, 1902, relator received notice from O’Connor of his purchase, on May 21, 1901, for $110.45, and claiming that he was entitled to $265.90. About July 19, 1902, he received from O’Connor the statutory notice, with claim of $110.45, together with 100 per cent, and fees provided by law in case relator should choose to redeem. He sent with his petition to the auditor general $119.06, being the purchase price and 6 per cent, interest. The auditor general replied that the sale on the reassessment of 1887 was held void because there was no dollar sign in the decree, whereupon the sale was canceled, and, without reassessment, the lands were included in a later petition, and a decree was taken for sale in 1901, when O’Connor purchased, as stated. He stated further that no objections were filed to this tax in the year 1890, and, second, that the cancellation and readvertising were done under sections 138 and 139 of the tax law (Act No. 169, Pub. Acts 1899), and that, in his opinion, such taxes were not subject to payment at the county treasurer’s office, but to the auditor general only, and that the certificate of the county treasurer did not warrant the cancellation asked, and the application was denied, and the deposit returned to relator. We are now asked to compel the auditor general to cancel by writ of mandamus.

The answer of the auditor general to the order to show cause has been anticipated by the foregoing statement made by the auditor general in answer to relator’s application. The contention of the relator is reduced to this: i. e., that, by the cancellation of the sale based on the action of the circuit court in holding the decree void, the tax, which was in no way affected, became again a delinquent tax, subject to payment at the county treasurer’s office, under the provisions of sections 58 and 59 (Act No. 206, Pub. Acts 1893), the latter of which is said to provide that payment of delinquent taxes may be made at the county treasurer’s office at any time before the land is sold. On behalf of the auditor general it is insisted that, after sale and cancellation of the certificate or deed, these lands were not to be treated as delinquent lands within the provisions of sections 58 and 59, but were to be considered in a different class, governed by sections 138 and 139, which are said to specifically provide for their treatment ; and, further, that there is no provision under which the county treasurer can have either information as to their condition or authority over them.

The whole controversy appears to be over the amount required for redemption. We are of the opinion that the auditor general has placed the right construction upon these statutes. The land had been sold, and by such sale the right to pay the tax to the county treasurer, under section 58, ended. Tbe sale was afterward held invalid, but it was for a technical defect in the decree, and this defect in no way affected the validity of the tax. The auditor general had authority, therefore, under section 138, to include this land in a subsequent petition for sale, and did so. Undoubtedly, the owner might have paid this tax to the auditor general under the provision’s of section 138, but there is no express provision authorizing the county treasurer to act further in the premises. The land is in a class by itself, under the charge and control of the auditor general. Hence the county treasurer cannot be said to have been the proper officer to give the certificate relied on in the case. Subdivision 4 of section 98 gives relief to those who have been misled by certificates issued by the proper officers, but this relief, being statutory, applies only to such cases. We cannot enlarge the statute.

The writ is denied.

Moore, Grant, and Montgomery, JJ., concurred.


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    HARTS v. CITY OF MACKINAC ISLAND.
    1. Taxation — Description of Property — Sufficiency.
    An assessment of land described as the “ W. f part of P. C. No. 331, five (5) cottages and bam (less lot deeded to J. B.)is not void for indefiniteness, since it refers to a deed presumptively of record.
    2. Same — Record of Equalization.
    Where the records of a board of supervisors showed that a motion was made “that the report of the committee on equalization be amended, and that the several townships and cities be equalized as follows,” setting out the equalized value of each, which motion was duly cai’ried, the fact that the clerk of the board, in entering the vote on the motion, referred to it as a motion merely to amend the report of the committee, did not invalidate the equalization.

      Error to Mackinac; Shepherd, J.
    Submitted November 21, 1902.
    (Docket No. 238.)
    Decided December 2, 1902.

      Assumpsit by Daisy H. Harts, and Daisy H. Harts and Edwin B. Harts, as administrators of the estate of E. S. Hanson, deceased, against the city of Mackinac Island, to recover taxes paid under protest. Erom a judgment for defendant, plaintiffs bring error.
    Affirmed.
    Plaintiffs paid their taxes under protest, and brought this suit to recover the amount so paid. The case was tried before the court without a jury, and a finding of facts made. The findings material to the understanding of the questions raised are these: The property assessed was described as the “ W. f part of P. C. No. 331, five (5) cottages ahd barn (less lot deeded to Jno. Barrow).” At the regular annual meeting of the board of supervisors for Mackinac county in October, 1901, a committee on equalization was appointed. The committee reported on October 24th. The report was in due form, was approved, adopted, and the board adjourned until the following day. On that day a motion was made to ‘ ‘ reconsider the motion to adopt the said report of the said committee.” This motion prevailed. The record of the board upon this subject is as follows:
    “Motion of Supervisor Morrison that the report of the committee on equalization be reconsidered, carried by yeas and nays as follows: Yeas [vote given], nays [vote given].
    “ Motion by Supervisor Burton that the report of the committee on equalization, as brought in yesterday, be amended, and that the several townships and cities be equalized as follows:
    “City of Mackinac Island ............$635,000.
    “ [Here follow other cities and townships.]
    “ Supervisor Rap'in moved an amendment to Supervisor Burton’s motion that the several townships and cities be equalized as follows: -
    “City of Mackinac Island...............$600,000.

      “ [Here follow other cities and townships.]
    “Which amendment was lost as follows: Yeas [vote given], nays [vote given].
    “Supervisor Burton’s motion to amend the report of the committee on equalization was then voted on and carried as follows: Yeas [vote given], nays [vote given]. Carried.
    “ The following are the amounts as found by the boards of review of the several townships and cities of St. Ignace and Mackinac Island, in Mackinac county, and as equalized by the board of supervisors, viz.:
    “City of Mackinac Island, real property, $467,070; personal property, $184,840. Amount deducted from the real property by the board of supervisors was $16,910. ■
    “ [Here follow other cities and townships. ] ”
    After this action the board adjourned to the following day. Upon reassembling, the minutes of the previous day were read, and, on motion, approved, and the board adjourned sine die.

    The court rendered a judgment for the defendant.

      Edwin B. Harts (Henry Hoffman, of counsel), for appellants.

      James McNamara, for appellee.
   Grant, J.

(after stating the facts). 1. The first objection to the validity of the tax is that the description of the land is void for indefiniteness. Counsel cite and rely in support of this contention upon Hubbard v. Winsor, 15 Mich. 146; Petit v. Railroad Co., 114 Mich. 362 (72 N. W. 238). In the former case the description was, “N. E. U” etc., “less lots sold.” In the latter case it was, “W. fractional -J-,” etc., “excepting and reserving the lands heretofore sold to E. Fitzgerald, Smith, Wright, Read, and others, and about one and a half acres in the northwest corner, and one and a half acres being in the Indian reserve, and also the Chicago & Grand Trunk Railway, being about 55 acres.” Those cases do not control this. In those cases it is manifest that no reference is made to any deed or other instrument for a description of the property reserved from the governmental description. There might have been a deed, there might have been a written contract for sale, or there might have been a parol contract. In this case the reference is made to a deed presumptively of record, and upon which, presumptively, the grantee in that deed has been assessed upon the same roll as was the land of the plaintiffs. It is not claimed that there was in fact any difficulty in determining the exact description of the assessed land by reference to the deed of Barrow.

2. The second point made is that the supervisors never in fact adopted the report of the committee on equalization, and that therefore- the equalization is void, under Auditor General v. Roberts, 83 Mich. 471 (47 N. W. 442), and cases there cited. We cannot adopt this view. After the vote to reconsider was carried, the motion was made “to amend the report, and that the several townships and cities be equalized as follows.” This motion included all the townships and cities, with the proper amounts opposite as equalized. A motion to amend this motion was made and defeated. Thereupon Supervisor Burton’s motion was carried. While the clerk recorded the motion as one to amend the report of the committee on equalization, it was evidently the motion made by Mr. Burton, which covered the entire subject of equalization, and was sufficient. The motion, as recorded, must control, and not the construction put upon it by the clerk in his minutes. In Auditor General v. Roberts this question was not involved.. There changes were made in several townships, and it did not appear “what the amounts of the valuation of each town and ward were, as made by the supervisors, nor how much in any case was added to or deducted from the valuation as returned by the supervisor.” What was there held fatal to the validity of the tax was in fact done in this case.

Judgment affirmed.

The other Justices concurred.


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    DARLING MILLING CO. v. CHAPMAN.
    1. Trial — Findings—Immaterial Facts.
    A circuit judge is not required to find specially upon questions immaterial to the issue, or which are sufficiently answered in his general finding.
    2. Same — Effect of Findings.
    Findings of fact by a circuit judge are in the nature of a special verdict, and are conclusive if there is evidence to support them.
    Error to Newaygo; Palmer, J.
    Submitted November 21, 1902.
    (Docket No. 119.)
    Decided December 2, 1902.

      Assumpsit by the Darling Milling Company against Robert A. Chapman and others, copartners as the R. A. Chapman Hay Company, for the breach of a contract for the purchase of hay. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      Martin Bozema, for appellant.

      McKnight & McAllister and J. Byron Judkins, for appellees.
   Moore, J.

Plaintiffs sued defendants to recover damages for the breach of a written contract. The case was appealed to the circuit court, where it was tried by the judge without a jury, who rendered a judgment in favor of the defendants. The case is brought here by writ of error.

The record discloses that in December, 1900, plaintiff entered into a written contract with defendants to sell them ten cars of hay. One car load was sent forward. A draft was drawn upon defendants, and was paid. It was the claim of plaintiff that afterwards some cars were loaded with hay, which Mr. Robert Chapman, acting for defendants, agreed to inspect, so they could go forward, but did not do so, and that his conduct was such as to justify plaintiff in believing defendants did not intend to take any more hay, and were guilty of a breach of the contract. Defendants denied any breach of the contract, and claimed they were ready and willing to take the hay if it conformed to the kind and quality required by the contract. The testimony is comparatively brief, consisting of two witnesses upon the part of the plaintiff, and one witness on the part of the defendants, and certain written exhibits. Though the facts were so simple, the judge was requested to make 27 specific findings of fact and 9 conclusions of law. Instead of doing this, the judge made a finding of the material facts in the case, the concluding one of which was that the plaintiff had wholly failed to establish a breach of the contract as alleged in its declaration, and found as a conclusion of law that judgment should be entered in favor of defendants. Upwards of 20 amendments were then proposed to the findings of fact, which the judge declined to make. Exceptions were then filed, and error assigned.

The important question in the case was whether or not there had been a breach of the contract. If there had been no breach of the contract, the plaintiff could not recover, and all the other questions were immaterial. In Schuler v. Eckert, 90 Mich. 165 (51 N. W. 198), the judge refused to find upon certain questions of fact which were presented to him, and his action was affirmed, the court saying:

“A circuit judge is not required to pass specifically upon questions of fact presented by either party, where the same are immaterial to the issue, or are plainly and sufficiently answered in his general finding.”

It has been repeatedly held that the findings of fact by the circuit judge are in the nature of a special verdict, and conclusive in this court, if there is evidence to support them. Neumann v. Mining Co., 57 Mich. 104 (23 N. W. 600), and the many cases there cited. There was an abundance of evidence to justify the finding of the judge that there was no breach of the contract.

The judgment is affirmed.

The other Justices concurred.


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    EDWARDS v. MICHIGAN TONTINE INVESTMENT CO.

    1. Equity Jurisdiction — Fraudulent Contract.
    Where a bill alleges that complainant has paid money to a corporation under a contract not wholly illegal, supposing it was legal and acting in good faith, while defendants knew that the business to be transacted under the contract was a cheat and a fraud, the parties are not in pari delicto, and equity has jurisdiction to compel an accounting.
    2. Same — Remedy at Law — Pleading.
    A demurrer to a bill on the ground that complainant has an adequate remedy at law should be overruled, where the bill alleges that defendants, the directors and stockholders of a corporation, .conspiring together, obtained complainant’s money by means of fraud, that the corporation did a large business, is insolvent, that defendants have converted the money taken in by the corporation, and prays for an accounting and an examination of the books.
    Appeal from Ionia; Stone (George P.), J., presiding.
    Submitted October 17, 1902.
    (Docket No. 91.)
    Decided December 16, 1902.
    Bill by Minnie L. Edwards against the Michigan Ton-tine Investment Company and others for an accounting. From an order overruling a demurrer to the bill, defendants appeal.
    Affirmed.

      John T. Mathews, for complainant.

      A. A. Ellis, Allen B. Morse, and F. C. Miller, for defendants.

       Rehearing denied March 23, 1903.

   Moore, J.

This is an appeal from an order overruling a demurrer to a bill in equity. This bill was filed against the Michigan Tontine Investment Company, a corporation. The incorporators and stockholders of said corporation are individually, jointly and severally, made parties defendant. The prayer of the bill is for an accounting on the part of said corporation, and on the part of the stockholders and officers individually, of the funds which came into the hands of said officers, for an injunction restraining the officers and stockholders from paying out or appropriating any of the funds of the company, and for discovery of all matters and things pertaining to said corporation; and the prayer for relief is for decree against the said corporation, and the stockholders and incorporators personally, for the amount of money paid in by the complainant, with interest thereon.

The bill alleges the incorporation of the defendant ton-tine company, and its purposes, as stated, “to buy, sell, manufacture, and deal in all kinds of jewelry, gold, silverware, precious stones, scientific and musical instruments, and any business naturally appurtenant to the same or connected therewith;” that the said corporation was capitalized at the sum of $5,000; and that the period for which it was incorporated was 30 years. The bill nest alleges an unlawful confederacy by and between the original incorporators and the others who subsequently associated-themselves as stockholders to use the corporate name as a cloak to cover up and protect them in the doing of an unlawful business; that an office was opened at the city of Ionia; and that the said incorporators and their agents commenced to solicit business upon a so-called diamond investment contract, the details of which are fully set up. The bill further alleges the manner of soliciting business, and the unlawful, untrue, and fraudulent representations made and held out to complainant and the public in general, which induced complainant to place her money with said defendants; that, in pursuance of the alleged contract made by complainant with said defendants, she (complainant) paid to defendants the sum of $800 upon 10 of said contracts; that she made a demand for her money, and was offered for her contracts $300. It further charges, on information and belief, that the said defendants had, at the time said demand was made, large sums of money in their hands, which they had received from complainant and other persons who had contributed to said funds, which they were secreting with the intention of converting the same to their own use. It further alleges that said contracts were ultra vires and wholly illegal and void as contracts, and that, at the time said defendants issued said contracts under said corporate ■ name, they knew they were ultra vires and void, and that they used the corporate name and character as a cloak to shield themselves from individual liability in the doing of an unlawful business. Complainant further charges that the said defendants are jointly and severally liable to complainant for said fraudulent representations, and that they are trustees of the funds in their hands which came from complainant and others, and are answerable as such.

The bill further charges that defendants individually have withdrawn to themselves, refunded, and appropriated to their own use large sums of the funds of complainant and others in their hands; that the money paid by complainant to said officers was paid through fraud and misrepresentation of the stockholders, officers, and managers, and was paid without consideration. The bill then charges directly that Thomas B. Waring, one of the defendants, who was acting on his behalf and on behalf of the other defendants, solicited complainant to go into said business by means of false and fraudulent representations. The bill further charges that, at the time it was filed, the said defendants were claiming that, by reason of the opinion of the attorney general of the State of Michigan, they were unable to longer do business on said investment contract plan, and claiming that they were not liable to refund to complainant the money she had paid in, or any money whatever; that by reason of said premises she (the complainant) is entitled to recover from said corporation, or the officers thereof, any funds that may be now in defendants’ hands or under defendants’ control, not exceeding the amount she has paid in, with interest thereon, and that she is entitled to a personal decree against the defendants for any deficiency that may exist; and that all of said defendants, whether officers, directors, or stockholders, are jointly and severally personally liable and subject to a personal decree against them individually. The bill further alleges that the funds of this complainant are now held in trust for her as funds paid without consideration, such payment having been induced by such false, fraudulent, and illegal representations, and that the same ought, in equity, to be recovered from the parties who have received the same and have appropriated the same. Said paragraph also charges that complainant acted in the' utmost good faith, fully believing that the said corporation had full power, right, and authority to make and carry out the contract so offered by him, the said Waring.

The bill then claims the right of discovery of the books, records, and memoranda, and all things pertaining to the said corporation and its business, in order that she (the complainant) may determine and know what, in justice and equity, belongs to her of the funds now in the hands of said corporation. The bill further charges in that connection that the said stockholders, officers, and directors have mixed and intermingled the funds now rightfully belonging to complainant with their own funds, and that, unless restrained by the court, they will dispose of their money, and the complainant be deprived of her remedy. Then comes the prayer of the bill, as previously stated.

This bill was demurred to by the several defendants for many reasons, which it will not be necessary to state. The important ones are two in number: First, because the complainant purchased the contract with full knowledge of its conditions, and never intended to buy any diamonds, but to receive 50 per cent, on her money; that she ' aided the corporation in violating its charter, if it was violated, and is in pari delicto with defendants, and the law will leave the parties where they have left themselves.

Contracts of a similar character to the one involved here were before the court in Rehberg v. Surety Co., 131 Mich. 135 (91 N. W. 132), and Barney v. Surety Co., 131 Mich. 192 (91 N. W. 140), in which cases it was held these contracts were not gambling contracts, within the meaning of the law, and were not wholly illegal. It is true that in one of the cases the business was characterized as a cheat and a fraud. The complainant, in her bill, alleges substantially the same thing, and that the defendants had knowledge of its character, while she did not, but, on the contrary, she supposed the business was legal, and acted in good faith.

The second important ground for demurrer is that complainant has a complete and adequate remedy at law; counsel citing, among others, the two cases mentioned above. It is not alwaj's true that, because a remedy might be pursued upon the law side of the court, the chancery side may not also have jurisdiction. The bill alleges that complainant’s money was obtained from her by means of fraud; that defendants conspired together, and were parties to the fraud; that a large business was done by the corporation; that it is insolvent; that defendants have converted the money taken in by the corporation, including the complainant’s money, to their own use; that an accounting is necessary, and an examination of the books of the borporation. If the case stated in the bill is true, — and it must, on demurrer, be deemed to be true,— under the repeated decisions of this court the chancery side of the court has jurisdiction. Wheeler v. Bank, Har. Ch. 449; Wallace v. Harris, 32 Mich. 380; Wyckoff v. Machine Co., 43 Mich. 309 (5 N. W. 405); Tompkins v. Hollister, 60 Mich. 470 (27 N. W. 651); Sherman v. Stove Co., 85 Mich. 169 (48 N. W. 537); Cogswell v. Mitts, 90 Mich. 353 (51 N. W. 514); Warren v. Holbrook, 95 Mich. 185 (54 N. W. 712, 35 Am. St. Rep. 554); John Hancock Mut. Life Ins. Co. v. Dick, 114 Mich. 337 (72 N. W. 179, 43 L. R. A. 566); Blodgett v. Foster, 114 Mich. 688 (72 N. W. 1000, 68 Am. St. Rep. 504); Lieberman v. Sloman, 118 Mich. 355 (76 N. W. 757); Mactavish v. Kent Circuit Judge, 122 Mich. 242 (80 N. W. 1086); Noble v. Grandin, 125 Mich. 383 (84 N. W. 465).

The order of the circuit court is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


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    MAY v. ULLRICH.
    1. Witnesses — Officer of Bank — Estates of Decedents.
    Where, in a proceeding in equity by the receiver of an insolvent bank to enforce an assessment against the estate of a stockholder, it was stipulated that the testimony of the cashier should stand as the testimony of the bank commissioner, such evidence is competent, although the cashier, as an officer of the bank, was disqualified to testify to those facts which were equally within the knowledge of the deceased person.
    2. Interest — Assessment on Bank Stock.
    Interest is recoverable upon an assessment by the receiver of an insolvent bank against a stockholder, when such assessment is past due and not paid on demand.
    Appeal from Ingham; Wiest, J.
    Submitted October 17, 1902.
    (Docket No. 88.)
    Decided December 16, 1902.
    Bill by John A. May, receiver of the Ingham County Savings Bank, against Paul J. Ullrich, administrator of the estate of Paul Ullrich, deceased, impleaded with James R. Trimble, to enforce an assessment on stock. Prom a decree for complainant, defendant appeals.
    Affirmed.

      S. L. Kilbourne, for complainant.

      Blade & Dolan, for defendant.
   Hooker, C. J.

On November 1, 1886, Paul Ullrich, of Mt. Clemens, since deceased, became the owner of and received a certificate for 10 shares of the capital stock of the Ingham County Savings Bank of Lansing, Mich., and the same was held by him when the bill was filed in this cause. On October 23, 1893, he became the owner and received a certificate for 50 shares of said stock, and continued to own the same until July 27, 1896, on which day his son and present administrator, under instructions from his father, surrendered the certificate for cancellation, requesting the issue of a new certificate to one James E. Trimble. On August '6, 1896, the bank voluntarily closed its doors, was taken in charge by the State banking commissioner, and on August 13, 1896, was decreed to be insolvent. The complainant is the receiver appointed by the court. On July 26, 1897, an assessment of 65 per cent, of the stock was made by order of the court upon petition of the receiver, which petition stated the transfer of the stock from Ullrich to Trimble, and alleged that it was fraudulent and void. Demand of payment was made upon Ullrich, and refused, and the bill in this cause was filed to collect the assessment, both Ullrich and Trimble being made parties defendant. Ullrich died’before answer, which was subsequently filed by his son and administrator. The bill was taken as confessed against Trimble. The bill was dismissed as to Trimble, and a decree was entered in favor of the receiver against the administrator, who has appealed.

Three questions only need consideration: (1) Was the bank insolvent when the stock was transferred to Trimble ? (2) Was such transfer fraudulent ? (3) If the first two questions be answered in the affirmative, should the receiver recover interest upon the amount assessed upon this stock ?

Counsel for defendant do not appear to discuss the first question stated above, but the fact of insolvency is denied in the answer, where it is said that the court had not jurisdiction to make the order of assessment. We do not find anything in the proofs showing that the order is void, and the evidence convinces us that the bank was insolvent. It is unnecessary, therefore, to discuss the legal questions that might be raised upon a different record relating to this subject.

Were we to treat all of the testimony offered upon the hearing as competent, there would be no lack of evidence to support the complainant’s contention; but much of this testimony was given by Dr. May, the receiver and cashier of the bank, by two other witnesses, — Pratt and Esselstyn, —who were directors, and by Trimble; and counsel for the appellant contend that much of their testimony was inadmissible under the statute (3 Comp. Laws, § 10212, which excludes interested parties from testifying to matters equally within the knowledge of one deceased), upon the ground that the first three, being officers of the bank, are excluded by the express terms of the statute, and that Trimble is within its spirit for the reason that, if Ullrich should not be held liable, he (Trimble) should be.

There is much force in this claim of appellant’s counsel. Dr. May gave testimony concerning a transaction which occurred on July 16th, on which occasion both the cashier and Ullrich were present, with other officers of the bank and the State banking commissioner. The record contains a stipulation that the cashier’s testimony regarding this meeting should stand as the testimony of the bank commissioner, whom it was inconvenient to call. We are of the opinion that this testimony discloses circumstances which make it improbable that Mr. Ullrich, the president of the bank, was ignorant of the straitened condition of the affairs of the bank, and, together with Trimble’s pecuniary condition and business relations with Ullrich, as shown by the testimony of the younger Ullrich, justify the conclusions reached by the learned circuit judge, both as to Ullrich’s design and Trimble’s willingness to aid him in avoiding his personal liability. We may therefore disregard the questionable testimony, and still find the bill' sustained by the evidence.

The remaining question, relating to the interest, needs little discussion. The claim was liquidated by the assessment, and, not being paid when due, interest is recoverable as upon any other overdue obligation.

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

Moore, Grant, and Montgomery, JJ., concurred.


author: Carpenter, J.

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    OESTERREICH v. FOWLE.
    1. Removal of Policeman — Trial—Appearance—Waiver.
    An appearance and trial on the merits, before a police commissioner, of a charge to remove a policeman, under Act No. 416, Local. Acts 1901, waives the requirement that the complaint should be under oath.
    2. Same — Complaint—Offense—Specifications.
    To determine what offense a policeman was charged with, and of what he was convicted, in a proceeding to remove him from office, the specifications must be examined, rather than the general language in the complaint and order of dismissal.
    '3. Same — Power of Police Commissioner — Department Rules.
    It is provided by sections 5 and 10 of Act No. 416, Local Acts 1901, that the police commissioner of Detroit shall have power, for cause assigned, to remove and suspend policemen from office, and that any citizen or police officer may make a complaint touching the character or conduct of any policeman, or for violation of any of the rules of the police department, and that the police commissioner may make an order of removal of the accused officer. Held, that the commissioner’s authority to remove is not limited to a violation of the rules of the department.
    4. Same — Absence from Duty — False Report.
    A charge that a policeman reported himself sick, when he was at home, engaged in manual labor, “ showing falsehood and , deception in his report to his superior officers, prejudicial to good order and discipline,” is more than a charge of absence from duty, and, upon conviction thereof, the commissioner is not limited to the penalty fixed by the rules for the latter offense.

      Certiorari to Wayne; Donovan, J.
    Submitted November 18, 1902.
    (Calendar No. 19,623.)
    Decided December 16, 1902.

      Mandamus by Robert R. Oesterreich to compel George W. Fowle, police commissioner of the city of Detroit, to revoke an order dismissing relator from the police force. From an order denying the writ, relator brings certiorari.

    Affirmed.

      Palmer & Palmer, for relator.

      John J. Speed, for respondent.
   Carpenter, J.

This is a proceeding to review the action of the circuit court for the county of Wayne in denying relator a mandamus compelling respondent to vacate an order dismissing him from the police force of the city of Detroit.

On June 2, 1902, the following charge was preferred against relator:

“Hon. Board op' Metropolitan Police Commissioners op the City op Detroit: I hereby prefer the following charges against Doorman Robert R. Oesterreich:
“ Charge, conduct unbecoming an officer.
“Specification 1st: Doorman Robert R. Oesterreich reported as being sick on the evening of May 19, 1902, and was absent until May 24, 1902, and carried on the time-book as reported sick, during which time he was at his home, engaged at manual labor; showing falsehood and deception in his report to his superior officers, prejudicial to good order and discipline.
“Witnesses:
“Albert M. Stoddard, Lieutenant.
“Peter Jocques, Sergeant.
“John Higgins, Sergeant.
“Respectfully submitted.
“A. Baker,
“Captain.”

On June 3, 1902, a copy of said charge was served on relator, with a written notice that he must furnish an answer in writing within three days. Relator filed a sworn answer, substantially denying the charge made against him. A hearing was' had, at which relator appeared, and testimony was introduced which satisfied respondent that relator “had not only been engaged in manual labor during the time he was absent, but that the labor was of a kind which showed that relator had been guilty of falsehood and deception in reporting himself sick.” On June 30, 1902, the following order was promulgated :

“ Doorman Eobert E. Oesterreich, arraigned on June 5, 1902, charged with conduct unbecoming an officer and neglect of duty, in that he was doing manual labor on his own premises whilst reporting himself unable to do police duty, was found guilty, and sentenced to be dismissed from the force, to take effect July 1, 1902.”

Eelator contends that he is entitled to a, mandamus on two grounds: First, that “the commissioner of police had no jurisdiction to try and remove the relator in these proceedings had before him, the complaint required by the statute not having been sworn to;” second, that, “if he [respondent] had jurisdiction to try him [relator], no offense was charged in the complaint, and his [respondent’s] findings and sentence were irregular and illegal.”

Section 10 of Act No. 416 of the Local Acts of 1901 required the complaint to be on oath. We think, however, that the relator waived this requirement by not raising this point at the hearing, and proceeding to a trial upon the merits. This is in no sense a criminal proceeding, nor is it like a criminal proceeding, and therefore the authorities relating to criminal proceedings, relied upon by relator’s counsel, have no application.

Did the complaint charge such misconduct on the part of the relator as to justify his dismissal from the force? In effect, the relator is charged with procuring himself to be carried on the time-book as sick, when in fact he was at home, engaged in manual labor, “showing' falsehood and deception in his report to his superior officers, prejudicial to good order and discipline.” He is found guilty of this precise charge, as is apparent by closely examining the order promulgated June 30, 1902. There is nothing to' justify the argument of relator that he was' charged with “conduct unbecoming an officer”'and convicted of “neglect of duty,” because, to determine what he was charged with, and what he was convicted of, we look at the specifications, and not at the general language contained in the complaint and order of dismissal.

It is urged that, under the law governing this case (Act No. 116, Local Acts 1901), relator could be removed only for conduct which violated rules and regulations of the police department, and that such rules and regulations were not violated by the misconduct charged in the complaint against relator. We cannot agree with relator in his position that he could not be removed except for violation of the rules and regulations of the department. Section 5 of the act under consideration provides:

“'Said commissioner shall also have power, for cause assigned, * * * to remove and suspend from office. ”

Section 10 provides:

“Any citizen of Detroit, or officer of the police force, with a view to the trial and suspension or removal from office of any officer or patrolman of the police force, may, on oath, in writing, prefer or make * * * charges or complaint touching the character or competency, or affecting the acts, conduct, or omissions, of such officer or patrolman, or for violation of, or misconduct as defined or prescribed by, the rules and regulations of the police department ; and said commissioner of police * * * may make an order of removal or suspension for some certain period, or may impose a fine, to be deducted from the pay of the officer accused.”

In our opinion, the foregoing provisions give ample power to the commissioner to try and remove any member of the police force for other cause than violations of the rules and regulations of the police department. We cannot think it was intended by this act to compel the commissioner to retain, as a member of the force, a man guilty of such falsehood and deception as that charged, and, as we must assume, proved, against th6 relator in this case. '

Relator also urges that the charge made against him was that of absence from .duty only, for which the maximum penalty prescribed by the rules of the department was forfeiture of pay during the time absent. What has been stated respecting the charge made against relator sufficiently shows that, in our opinion, he was charged with sotnething more than mere absence from duty.

It results from these views that we think the court below correctly disposed of this case, and therefore his order will be affirmed.

The other Justices concurred.


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    JONES v. CODY.
    Public Schools — Enforcement of Rules by Teacher — Authority Over Pupils After School.
    A principal of a public school, who enforces a rule of the school board requiring pupils to go directly home at the close of school, adopted under a statute conferring authority on the board to make rules relating to the good government of the schools and the welfare of the public concerning the same, is not liable for the damages sustained by the owner of a store arising from a loss of trade due to such enforcement.
    Error to Wayne; Brooke, J.
    Submitted November 19, 1902.
    (Docket No. 98.)
    Decided December 16, 1902.
    Case by John P. Jones and Catherine Jones against Frederick Cody to recover damages for a loss of trade. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      Counsel for appellants has made no statement of the case as provided by Sup. Ct. Rule 40, which reads as follows :
    “.The brief of a party bringing a cause into this court shall contain a clear and concise statement of the facts of the case, distinct from argument, and of the errors upon which he relies, the questions involved, and the manner in which they are raised. The court will consider such statement sufficient and accurate unless the opposite party shall point out in his brief wherein the statement is insufficient or inaccurate.”
    We might affirm the judgment for this reason, but, as the case is one of considerable importance, we will dispose of it on the merits. Defendant’s counsel has made a clear statement, which we have verified and find correct.
    The plaintiffs are the owners of a small confectionery store situated opposite the Webster School, one of the public schools of the city of Detroit. Mrs. Jones had full charge of the business. The defendant was principal of the school. The schools are under the control of the board of education, which derives its powers from a special act of the legislature. Section 8 of the act gives the board—
    “Authority to make by-laws and ordinances * * * relative to the employment and examination of teachers, their powers and duties; relative to the regulation of schools, and the books to be used therein; * * * relative to anything whatever that may advance the interests of education, the good government and prosperity of the free schools in said city, and the. welfare of the public concerning the same.” Laws 1869, No. 233.
    This controversy arises over the enforcement of rule 87, subdivision c, which provides that “pupils are required to go directly to their homes at the close of school at noon and at night, unless required or specially permitted by their teachers to remain.” This has been a rule of the board for many years. In the fall and winter of 1899 the defendant had not required a strict compliance with this rule. It was his habit, after the various rooms had been dismissed at noon and night, to go around, straightening up his affairs inside the school building. He then went to the principal’s room, got his coat and hat, and started for home. This occupied about 10 minutes after the pupils had been dismissed. In passing out of the school block, if he noticed any of the boys loitering in the streets, he told them to go home; and if they were in the stores he stepped to the door, or inside, and said: “Come, boys, your'time is up; you must go on home.”
    Plaintiffs found no fault with the rule or method of enforcement until' January 10, 1900. On that date the principal, seeing some of the boys in plaintiffs’ store, stepped inside, as had been his custom, to send them on their way home. He was then informed by Mrs. Jones that she did not wish him to come into her place of business to order the boys out, and he at once informed her that, if not allowed to enforce the rule in the manner he was enforcing it, he would be obliged to enforce it strictly, and require the pupils to go directly to their homes at the close of school sessions. In the interval between January 10 and February 14, 1900, the trouble was brought to the notice of the superintendent of schools, and also the committee of the board on teachers and schools. Mrs. Jones made a complaint in person to the superintendent, and wrote a letter and called upon Mr. Love, the chairman of the committee. Mr. Cody went to the superintendent for instructions, and later appeared before the committee. From both the superintendent and the committee he received instructions to enforce the rule, and accordingly on February 14, 1900, he had the teachers read the rule to the pupils in the various rooms of the school. It is this action in enforcing the rule strictly in accordance with its terms of which plaintiff makes complaint. ’ She says her trade, which amounted to $5 or $6 per day, “fell off right away;” and because, as she claims, the enforcement of this rule of the board lessened her trade with the scholars, she brings this action against the defendant, who was carrying out the instructions of his superiors. The court directed a verdict for the defendant.

      James H. Pound, for appellants.

      Arthur Webster, for appellee.
   Grant, J.

(after stating the facts). No malice is alleged in the declaration, and none shown by the proofs. The assertion of plaintiffs’ counsel that defendant acted malo animo has not even a shadow for a basis.. No fault is or can be found with the manner in which the defendant enforced the rule. Plaintiffs made no objection to defendant’s method until Mrs. Jones requested him not to enter her store to notify the pupils to go home. He then ceased doing this, and, by the direction of the committee, caused the rule to be read to the pupils in all the schpolrooms. This action was commendable, and obedience on the part of the pupils was equally commendable. The rule and the method of enforcing it are reasonable, unless it be the law that those in control of our public schools have no jurisdiction over pupils outside the schoolhouse yard. It is not only the legal right, but the moral duty, of the school authorities, to require children to go 'directly from school to their homes. All parents who have a proper regard for the welfare of their children desire it. The State makes it compulsory upon parents to send their children to school, and punishes them for failure to do so. The least that the State can in reason do is to throw every safeguard possible around the children who in obedience to the law are attending school. The dangers to which children are exposed upon the streets of cities are matters of common knowledge. Humanity and the welfare of the country demand that a most watchful safeguard should, so far as possible, accompany children, when required or allowed to be on the streets. Parents have a right to understand that their children will be promptly sent home after school, and to believe that something untoward has happened -when they do not return in time. In no other way can parents and teachers act in harmony to protect children from bad influences, bad companionship, and bad morals. No trader or merchant has the constitutional right to have children remain in his place of business, in order that they may spend money there, while they are on their way to and from school. The liberty of neither the child nor parent nor trader is at all unlawfully restrained by this rule and its reasonable enforcement. The rule does not interfere with the right of the parent to send his child upon an errand, to a store or other reputable place, or to the home of a relative or friend to visit. Neither does it restrict the authority of parents over their children. This action on the part of the school board of the city of Detroit and its teachers is fully sustained by the authorities. Lander v. Seaver, 32 Vt. 120 (76 Am. Dec. 156); Deskins v. Gose, 85 Mo. 485 (55 Am. Rep. 387); Sherman v. Inhabitants of Charlestown, 8 Cush. 160; Mechem, Pub. Off. § 730.

Judgment is affirmed.

The other Justices concurred.


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    DELRAY LUMBER CO. v. KEOHANE.
    1. Homestead — Residence.
    One who resides on property’ owned by himself cannot claim a homestead in another parcel upon which he is;at the time erecting a dwelling.

      2. Same — Mechanic’s Lien — Evidence.
    In a suit to enforce a mechanic’s lien upon a dwelling, defendant claimed the house was her homestead, and testified that, while it was being built, she lived on a certain street in a house which she did not own, and that she had no other property in the city than that involved in the suit. Complainants put in evidence a deed executed by her after the lien had attached, conveying a lot on the street upon which she lived. Held, that the circuit judge was justified in discrediting her testimony, and his finding that the property involved in the suit was not her homestead would not be disturbed on appeal.
    3. Building Contract — Changes—Waiver—Lien.
    Such changes by the owner from the original contract as are frequently made, in good faith, during the construction of a house, do not constitute such a waiver of the contract as .will exclude its terms in determining his liability under the lien law.
    4. Promise to Pay Subcontractor — Lien.
    A. promise by the owner of a house to pay a subcontractor a balance due him from the contractor would not establish a lien against the owner’s property which did not otherwise exist.
    5. Abandonment of Contract — Cost of Completion — Liens.
    Where a contractor has abandoned his contract for the construction of a hodse, subcontractors and materialmen are entitled to liens for such a proportion of the amount of their claims arising before the abandonment as the contract price is of the actual cost of constructing the house in accordance with the original contract.
    Appeal from Wayne; Donovan, J.
    Submitted November 19, 1902.
    (Docket No. 99.)
    Decided December 16, 1902.
    Bill by the Delray Lumber Company and Joseph E. Hugg and Albert Oltz, copartners as Hugg & Oltz, against Katherine Keohane and James Scheel, to enforce mechanics’ liens. Erom a decree for complainants, defendant Keohane appeals.
    Reversed.

      Wilkinson & Younglove and Alex. M. Rea, for complainants.

      James H. Pound, for appellant.
   Carpenter, J.

This is a chancery suit to enforce two mechanics’ liens against the property of the first-named defendant. The first-named complainant claims a lien by reason of lumber furnished in the construction of a house for the defendant Keohane. The other two complainants are partners doing business under the firm name of Hugg & Oltz. They claim a lien for the balance unpaid on a contract to do the masonwork on said house, and for labor performed in lathing said house. The court below decreed the enforcement of these claims at their full amount. Defendant Keohane appeals. She claims that the decree should be reversed on two grounds: First, that the property in question was the homestead of defendant Keohane, and that, as the complainants’ contracts were verbal, it is not subject to the lien’s asserted by them; second, that complainants are not entitled to payment in full for the amount of their claims. A discussion of the questions raised by these claims will review every question presented by the record. .

Was the property a homestead? When the complainants’ liens attached, the property was unoccupied. If, therefore, defendant resided on other property owned by her, she could not claim a homestead in the property in question. McMonegal v. Wilson, 103 Mich., at page 268 (61 N. W. 495). Defendant testified that, when the house was built, she lived on Lansing avenue, Detroit, part of the time, and boarded part of the time; that she did not own the house in which she lived, and at that time owned no other property in Detroit than that involved in this suit. Complainants put in evidence a deed executed July 18, 1901 (this was after complainants’ liens had attached), from defendant Keohane to Thomas Gaffney and wife, conveying lot 31 of P. Williams’ subdivision of private claim 31, fronting on Lansing avenue. When this testimony was introduced, complainants’ counsel stated:

“The testimony shows she was living on Lansing avenue, and that she did not own the house. I will produce further proof of that.”

No further proof was produced either by complainants or by defendant.

The trial judge, in his decision,, stated:

“I find, also, * * * that this was not the homestead of the defendant at the time the liens were filed. Indeed, she had another and separate homestead.”

It must be admitted that the evidence respecting the homestead was left in an unsatisfactory state. It is difficult to understand why complainants’ counsel did not carry out his proposed plan, which was, as we understand, to prove that defendant resided on the land subsequently conveyed to Gaffney. On the other hand, it is even more difficult to understand why, if this land was not that on which defendant lived, she did not, as she surely could, prove that fact. If this condition of the record did not furnish affirmative testimony that defendant resided on the land subsequently sold to Gaffney, it certainly did justify the trial judge in discrediting, as he did,'defendant Keohane’s testimony that she did not own the house in which she lived. This decision we will not disturb.

Are complainants entitled to payment in full ? Defendant James Scheel was the principal contractor. The contract price was $1,100. About June 1, 1901, and after $550 had been paid him, Scheel abandoned his contract, leaving the building incomplete. Of the amount so paid, Scheel had paid out to laborers and materialmen $405.02, though this had not been distributed as required by the principles announced in Fairbairn v. Moody, 116 Mich. 65 (75 N. W. 469), and Smalley v. Gearing, 121 Mich. 190 (79 N. W. 1114, 80 N. W. 797). At that time he owed the first-named complainant $312.50, the amount of its claim .asserted in this case, for material used in the building. He also owed the other complainants, Messrs. Hugg & Oltz, but just how much it is impossible, by this record, to state; and the building at that time was very far from completion. After this abandonment, defendant Keohane proceeded and completed the building at an additional expenditure of $1,016.35. The complainants insist that the rule for determining the" amount of claims announced in Fairbairn v. Moody, 116 Mich. 65 (75 N. W. 469), and Smalley v. Gearing, 121 Mich. 190 (79 N. W. 1114, 80 N. W. 797), should not be applied, for two reasons: First, themontract between Keohane and Scheel was so vague and indefinite that it must be disregarded; second, defendant Keohane, in completing her house, made a different house from that contemplated by the original contract, and thereby waived all rights under said contract.

There is no merit in the first contention. While the contract is informal, its meaning is made sufficiently clear by the accompanying plans and specifications.

In completing the house after the abandonment by defendant Scheel, defendant Keohane did make some changes in the original contract, which obtained for her a house, as she stated, “a little better” than was originally contemplated. These changes, however, were simply such changes as an owner, in good faith, not infrequently makes during the process of construction. For instance, a window was extended out; grills were put in; inside woodwork was filled and oiled, when the specifications called for three coats of paint; bevel plate glass was put in the front door, when the specifications required No. 1 glass. Surely, these changes do not justify a disregard of the principles of the case of Smalley v. Gearing.

The condition of this record, however,, is not such as to enable this court to finally dispose of this controversy. It has already been stated in this opinion that it is impossible to determine from this record what amount was due Messrs. Hugg & Oltz at the time defendant Scheel abandoned the contract. It is shown by the testimony in this case that, after that abandonment, Messrs. Hugg & Oltz did some work under an agreement with defendant Keohane that she should pay for the same; that the' total amount due for work done under said agreement with defendant Keohane, and the balance remaining due under their contract with defendant Scheel, aggregated $93.50. But how much of this $93.50 consisted of the balance due under their contract with defendant Scheel, or how much arose from work done under the agreement with defendant Keohane, the record does not disclose. It is obvious that the amount due Messrs. Hugg & Oltz for work done directly under a contract with defendant Keohane should not be reduced, under the principles of Smalley v. Gearing, supra. It is equally obvious that the amount due them for work done under their contract with defendant Scheel must, in accordance with those principies, be reduced. This is true, notwithstanding other testimony in the record that defendant Keohane promised to pay this balance, as this promise certainly would not establish a lien against her property which otherwise did not exist. The record furnishes no data by which the court can determine the cost of completing the building in accordance with the original contract. It is true, we are informed that it cost $1,016.35 to finish the building, but this amount was expended for building according to the method adopted; in other words, there is included in these figures-a sum, which we cannot determine, for some extras and departures from the original contract.

Complainants Hugg & Oltz are entitled to a decree for the full amount of their claim for work done after the abandonment by defendant Scheel. The balance of their claim, and the claim of the complainant the Delray Lumber Company, must be reduced according to the principles announced in the case of Smalley v. Gearing, supra; that is to say, they will have such a proportion of the amount of their claim as $1,100 is of the cost of constructing the house in accordance with the original contract. The record shows every element of this entire cost, except one, viz., the amount expended by defendant Keohane in constructing the house according to the original contract. This amount may be determined by subtracting from $1,016.35 (the amount it cost the defendant Keohane to complete the building in the way it was completed) the cost of changes and extras. The remainder, added to $405 (the aggregate of complainants demands), and $405.02 (the amount expended by defendant Scheel), will represent the entire cost of constructing the house according to the original contract.

The decree will be reversed, and the record remanded to the court below, with directions to take proofs and to enter a decree in accordance with the principles herein stated. Defendant Keohane will recover the costs of this court. Complainants will recover costs in the lower court.

The other Justices concurred.