text:
    CITY OF ST. JOSEPH v. SEEL.
    Adverse Possession — Licensee.
    The possession of one who enters upon land under license from another claiming title, and who occupies the land for a series of years, doing nothing' inconsistent with his holding as licensee, does not begin to be adverse until he notifies the licensor of a hostile claim.
    Error to Berrien; Coolidge, J.
    Submitted October 6, 1899.
    Decided December 2, 1899.
    Ejectment by the city of St. Joseph against Henry Seel and others, trustees of the First German Baptist Church of St. Joseph. From a judgment for defendants, plaintiff brings error.
    Reversed.

      O’Hara & O’Hara, for appellant.

      Lawrence C. Fyfe and N. A. Hamilton, for appellees.
   Long, J.

Action of ejectment. Defendants, as trustees, are in possession of the land in controversy. This land, known as “ Lot 383,” is a part of a plat made by the proprietors of the town of Newberryport, and duly recorded, and situate within what is now known as the “ City of St. Joseph.” The proprietors of the land platted, in 1834, gave a deed of it, with other lands, to the president, trustees, and freemen of the village. It was called in the plat “Academy Lot.” It appears that the village of St. Joseph deeded to the defendant society lot 384, which was shown on the plat as “Church Lot.” This deed was made in 1860. The defendant society at once erected a church building thereon. Lot 383 remained vacant until some time in 1873, when a man by the name of Lessing moved upon it, but by what authority does not appear. He had a small house there, but it is not shown that he claimed title. In the spring of 1881 the defendant society was desirous of building a brick church upon lot 384, to which it had title. The society thereupon moved the old church —a frame building — upon lot 383, the title to which is in controversy here. Some arrangement was made with Lessing by which he vacated the lot, and his house was moved off when the old church was moved on. The defendant society claims to have been in open, hostile, and adverse possession of the property since that time. The facts upon this branch of the case are not much in dispute.

The only title which the plaintiff showed was the plat, and the deed to the village of St. Joseph. It was not shown that the village or city of St. Joseph was ever in possession. The court stated to the jury that the plaintiff had not shown title, or that it had ever had possession of the land. Counsel for plaintiff claimed, however, that the defendant society went into possession in 1881, under a license from the city, and that, therefore, it was in no position to set up a claim of title adverse to the city. The court charged the jury as follows:

“The plaintiff in this case has not shown any title to this land by record or possession. The evidence on the part of the plaintiff in this respect has failed; that is, the plaintiff has not shown what we call title either by possession or by record. It is claimed, however, by the plaintiff, that in April, 1881, the defendants sought permission of the city to occupy the premises for temporary purposes; that they obtained such permission of the council, and thereupon entered upon the premises under the leave and license of the council, and recognizing the title of the plaintiff in the premises. If this theory be true, then the possession of the defendants, the church, so obtained, would not be adverse, and no title would be acquired by the defendants so long as that kind of occupation continued; and, if that kind of occupation continued into a period of within less than 15 years before the commencement of suit, then the plaintiff can recover. The defendants in this case, however, claim that they have held adverse possession of these premises for more than 15 years before the commencement of this suit. Suit was commenced September 9,1898. A person is said to be in adverse possession of a piece of land when he occupies a piece of land claiming to own it. If such possession is continuous, open, exclusive, notorious, _ and hostile, then such possession ripens into a complete title, as good as any other title, at the expiration of 15 years. No deed is necessary, or any written title or paper of any kind, to base adverse possession upon. Naked possession alone, without any deed or paper of any kind, is sufficient to base adverse possession upon, if the party claims the land to be his own, and such occupancy continues for 15 years openly, exclusively, and in a hostile way. This law, gentlemen of the jury, is a wise one. * * *
“ It is immaterial,, also, whether possession was originally acquired by permission or not, if at some time after entry the party claimed the land, and occupied it continuously, openly, and exclusively, and in a hostile way, asserting ownership, and so occupied it for 15 years. If, however, the party entering enters under a license, or by permission of another party, and does not claim to own it, but occupies it subordinate to the party permitting him to occupy it, and under certain conditions, then there can be no adverse possession so long as that condition of things exists. That is to say, if the party goes in under some license, and recognizing the title of the party that lets him in, no adverse possession can exist so long as that condition of things exists. If permission is given to enter upon the land, and the party enters upon the land, claiming it as his own, then adverse possession may begin. The defendants in this case claim that upon their entry upon this lot, or shortly after, they actually claimed to own the land, and made improvements, and have openly, notoriously, and exclusively been in possession of these premises, claiming them to be their own. If these facts be true, the plaintiff is not entitled to recover. Mr. Benning and some other witnesses testify in this case on the part of the defendants that, after the church took possession of the premises, the church claimed to own them, and used them continuously and openly, and have had exclusive possession of these premises for more than 15 years prior to the commencement of the suit. If these witnesses testify to the truth, then the plaintiff cannot recover. It is for you to say whether they testify to the truth or not. If you do not believe these witnesses, if you believe the church went upon the land under a license of the city ■council, recognizing the ownership of the city, with no idea of claiming to own it themselves, then the possession of the church would not ripen into a title so long as that kind of occupancy continued. There would be no adverse possession under that state of -facts. But if the church entered upon the lot with the idea that the city had no use for the lot, and had no objection to the occupancy by the church, and took advantage of the permission of the council to occupy it under a claim of ownership, then, although the church may have been mistaken, and although the council may not have intended to give the land to the ■church, such occupancy would be the basis of adverse possession. The real question before you is, What was the real character of the possession by the church ? Have they occupied it under the idea and claim that they owned the land, that it was theirs, for 15 years prior to the commencement of this suit, or is their claim in this respect fraudulent and untrue? This is the square issue before you. It is for you to determine. The whole facts are before you, and the responsibility, so far as the facts are •concerned, devolves upon you entirely. I have endeavored to give you the law as I believe it to be. I don’t think there is any particular controversy among the attorneys ns to the law that governs the case.”

The jury returned a verdict in favor of defendants. Plaintiff brings error.

Counsel excepted to the refusal of the court to give the requests asked and to the charge as given. Counsel for plaintiff asked the court to charge the jury that:

“If you find that the trustees of the First German Baptist Church recognized that the plaintiff was the owner of the lot in question in the spring of 1881, and requested permission of the council of St. Joseph to remove’ their old church building upon this lot for temporary purposes, and that such permission was granted by the council, and that, acting under that permission solely, the-church people moved upon said lot, then I charge you that plaintiff is entitled to recover.”

This was refused, except given modified in the general charge.

Counsel also asked the court to charge :

“It matters not what may have been in the minds of the church people, if they did obtain permission from the-council, before their possession would commence to be-adverse, they must notify the landlord of such hostility before adverse possession can commence.”

The court, in refusing this request, stated to the jury:

“I don’t understand it is necessary in cases of this kind, that any written notice must be given to the party that gave the permission. The adverse possession may be-shown by proof of facts, notorious possession, exclusive,, making improvements, and all those things. It is not necessary to prove any direct verbal notice. Still it is necessary that the defendants sháll show by a preponderance of evidence that there were acts — -notorious acts— indicating a claim of ownership, and under such circumstances that the city would reasonably be expected to take notice of it.”

1. It is contended that the court did not give the jury proper instruction upon the question of what would constitute adverse possession which would ripen into title. We need not consider that question, as we think the requests to charge should have been given.

2, It is contended that the court erred in not giving the requests to charge, and that the second request, given above, stated the law correctly; that, if the defendants did obtain permission from the city to move onto tbe land, they could not be treated as holding it adversely until they had notified the city that they intended to hold in hostility to it. There was testimony given by plaintiff tending to show that the trustees of the defendant church society, or some of them, in 1881 appeared before the council, and asked permission to move the old church on the lot in question. Two of the trustees of the church society were at that time members of the board of trustees of the village. These two trustees both testified that, as soon as the old church was moved on the lot, the church society claimed to own it; but they admitted that nothing was said to the other trustees of the village about the claim then made. There is no evidence in the case that the trustees of the village were notified that the church society claimed to own the property. . It appears that, after this license to occupy the lot was granted by the-village officers, the building was moved upon it, and put upon brick piers; the lot was filled by hauling in earth, and a sidewalk built in front of the property; trees were planted, and the old church occupied. During two years the church society rented the property to the-board óf education at an annual rental of $200. While it appears that the members of the society talked among themselves that they did not recognize that the city had any interest in the lot, yet it is not claimed that they ever told any one outside of the society that they made such claim of ownership. Here, then, is shown an entry upon the property by the defendants under a license from the city, the city then claipfing title under a deed from the platters. There is nothing in the record showing that the acts done by the defendants were any different from what might be expected from a mere licensee. The church society paid no rental, and, naturally, what improvements were made it made itself. It moved its building upon the lot. The lot was low, and it filled it up. It planted frees, and built the sidewalk. It continued in possession from 1881 to 1898, when this suit was commenced; and during all that time, if the testimony of the two trustees is to be believed, they intended to claim title for the society, and yet said nothing to the village officers about it, although these two trustees were members of the village board ¿t the time the license was granted. We think it is the settled rule of law that, if possession of real estate is held by mere indulgence or by consent of the owner, and the person so going into possession understands this, the possession is not adverse, and cannot ripen into a title which will defeat the right of the legal owner. This doctrine is fully stated in Larwell v. Stevens, 2 McCrary, 311, 12 Fed. 559. See, also, Main Township School District v. Reichard, 142 Pa. St. 226. It was said in Smith v. Hitchcock, 38 Neb. 109:

‘ ‘ There is no evidence in the record that establishes or tends to establish the fact that Mrs. Smith’s possession was an adverse one, nor that she entered into possession of these premises with the intention of claiming them as her own, nor that she ever held, after entry, in hostility to the defendant in error. Mrs. Smith’s entry on this lot was ■by permission of the owner of the legal title, and her possession thereafter was permissive, and not adverse; nor could it become so until such time as she began to occupy under a claim of right, with'notice of such claim brought home to the owner,” — citing in support of that doctrine: Harvey v. Tyler, 2 Wall. 328; Allen v. Allen, 58 Wis. 202, 209; Perkins v. Nugent, 45 Mich. 156; Davenport v. Sebring, 52 Iowa, 364; Pease v. Lawson, 33 Mo. 35; Smith v. Stevens, 82 Ill. 554.

In the present case there was no claim that any notice was ever given the city that the defendants set up any such claim, or intended to claim title, and that they held possession in hostility to the city. The court should have given the requests tendered by the plaintiff.

We need not discuss the other assignments of error. The judgment below must be reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, C. J.

license: Public Domain

text:
    REED v. REED.
    Tenancy in Common — Foreclosure Sale — Purchase by Co-Tenant — Bill eor Partition — Offer to Redeem. '
    Tenants in common cannot maintain a bill for partition against a co-tenant who has bid in the premises on foreclosure of an outstanding lien, without offering to contribute their proportionate shares in redemption from the sale.
    Appeal from Livingston; Smith, J.
    Submitted October 24, 1899.
    Decided December 2, 1899.
    Bill for partition by Melissa Reed, Alice Secor, and Frank Ray against Charles Reed, John Ray, Sarah Wright, and Horace Pierce. From a decree for complainants, defendant Reed appeals.
    Reversed.
    Lucy A. Reed died intestate, possessed of two parcels of real estate. Defendant Reed was her husband, and the complainants and other defendants her brothers and sisters, except defendant Pierce, who is the son of a deceased sister. The parties, complainants and defendants, were therefore tenants in common of the land. There was a mortgage upon one parcel for $1,000, and upon the other parcel for $400. Defendant Reed purchased these mortgages in the name of one Joseph H. Tiffin. This was done by the advice of his attorneys, in order to avoid any question of merger. The mortgages were due, and were foreclosed by advertisement in the name of Mr. Tiffin, and bid in by Mr. Reed for the sum of $1,587.69, —the amount due, with interest and costs. The defendants Ray, Wright, and Pierce are interested with the com-' plainants. Mr. Reed made no attempt to conceal the transaction. No fraud or concealment is charged. The time for redemption expired April 5, 1899. On January 30, 1899, complainants filed this bill for a partition, without tendering or offering to pay their proportions of the amount in redemption from the sale. The case was heard upon pleadings and proofs on May 1, 1899. At the hearing defendant Reed was permitted to file a supplemental answer, showing that there had been no redemption from the foreclosure sales. The court entered a decree fixing the amount of Mr. Reed’s lien at $1,641.29; directing a sale of the premises; that the amount due Reed be first paid, and the balance divided among the co-tenants.

      Louis E. Howlett, for complainants.

      Gray & Gray, for appellant.
   Grant, C. J.

(after stating the facts). The theory of the bill is that the foreclosure deed to defendant Reed is absolutely void, and that he could obtain no title, as against his co-tenants, by purchasing and foreclosing the outstanding liens. The deed was not void, but voidable. This is conceded by counsel for Mr. Reed, and they admit that timely proceedings in redemption by the co-tenants would have defeated his title. It was necessary for the protection of all that some one of the co-tenants should either pay or purchase these mortgages, or, if foreclosed by the mortgagee, protect their interests upon the sale by purchase, or redemption after sale. Mr. Reed was the owner of the undivided six-twelfths, and he chose to purchase and foreclose the liens. The law' gave him the right to do,this. The law also gave the right to his co-tenants to share in the benefits of that sale by contribution. They did not do this, but seek to impose upon Mr. Reed all the cost and risk. If the property should not sell for sufficient at tbe sale upon this decree to pay the amount of indebtedness, he will be out all his expenses, and has been subjected to the coats of this suit, while his co-tenants lose nothing and assume no risks. The law does not permit co-tenants to thus speculate with their common property. Law and equity deal with co-tenants after one of them, as lie has the right to do, has purchased the outstanding liens •or titles. Before co-tenants can take proceedings to secure the.benefit of such purchase by another co-tenant, they must do equity, namely, tender or offer to contribute their ■proportionate shares of the amount paid in purchase of these outstanding liens. Freem. Co-Ten. § 154; 11 Am. & Eng. Enc. Law, 1083; Lee v. Fox, 6 Dana, 171; Brittin v. Handy, 20 Ark. 381 (73 Am. Dec. 497); Flagg v. Mann, 2 Sumn. 523; Buchanan v. King’s Heirs, 22 Grrat. 419; Mandeville v. Solomon, 39 Cal. 133; Wilmot v. Lathrop, 67 Vt. 671; Stevens v. Reynolds, 143 Ind. 467 (52 Am. St. Rep. 422). Co-tenants desiring to share in such purchase must move promptly; that is, within a reasonable time. The co-tenants in this case have not moved at all, except upon the theory that the purchase by the co-tenant was absolutely void, and that they were not ■subject to contribution. They have neither done, nor ■offered to do, equity.

Decree reversed, and bill dismissed, with the costs of Loth courts.

The other Justices concurred.


author: Moore, J.

text:
    STEKETEE v. PRATT.
    1. Landlord and Tenant — Surrender of Lease — Evidence.
    Where a lessee gave 30 days’ notice of intention to quit, and the-parties then, without waiving any other rights or admitting-any liability, agreed that, if the lessor’s attorney should procure a satisfactory tenant, no claim would be made on the lessee for rent after the commencement of such latter tenant’s term, and at the end of the 30 days the lessee took the key to-the lessor, who told the lessee to leave it with the lessor’s attorney, no intention of the lessor to surrender his rights under the lease by acceptance of the key is shown.
    2. Same — Parol Agreement for Lease — Statute of Frauds.
    The tenancy is not at will, but from year to year, or at least for a year, -where entry was under a parol agreement for a lease for three years, at a specified annual rental, payable monthly in advance.
    Error to Emmet; Adams, J.
    Submitted October 24, 1899.
    Decided December 2, 1899.

      Assumpsit by George G. Steketee against Charles R. Pratt for rent. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Maher & Salsbury, for appellant.

      Halstead & Halstead, for appellee.
   Moore, J.

Plaintiff sued defendant to recover for the-rent of a store situated in Grand Rapids, from December 1, 1898, to March 24, 1899. In May, 1898, the parties had an interview at the store in relation to its rental. The defendant desired to rent it for three years, with the privilege of three years more if he desired. The plaintiff asked him $1,400 a year rent, payable monthly in advance. The defendant agreed to pay that rent if plaintiff would make certain repairs, which the plaintiff agreed to make. To-avoid any misunderstanding as to what repairs should be made, the defendant made a memorandum reading as follows :

“Run partition across store where wanted, not north of jog. Put old linoleum back of partition, and new linoleum to cover floor front of partition, selected by tenant. Paper store front of partition; nice paper, selected by tenant. Toilet room upstairs, and any little repairs needed and not mentioned above. Lease to commence June 1, 1898, and run three years, with privilege of three longer at expiration.”

It was agreed that a written lease should be signed later. The plaintiff made the repairs, and the defendant took possession of the store, and paid the rent for several months. A written lease was prepared by plaintiff, and, according to- his version, was left- with defendant, who said he would look it over and sign it later. It in fact was never signed. According to the version of defendant, the lease contained some minor provisions which were objectionable to him, and he told plaintiff he would not sign the lease as drawn. Defendant continued in the possession of the store until October 1st, when he sold his stock of goods to Mr. Mitts, who occupied the 'store during October and November, and paid the rent for those months, through defendant’s attorney, Mr. Doran, to the plaintiff. A dispute arose between the parties, and the following agreement wasrnade:

Memoranda of agreement between Charles R. Pratt and George G. Steketee Witnesseth, that a controversy having arisen between said parties as to the continuing liability of said Pratt to said Steketee for rental of store and basement, number 89 Monroe street, Grand Rapids, Michigan, from and after December 1, 1898, it is hereby agreed by them as follows:
“1. That Edgar A. Maher be authorized to procure a tenant for said store, if he is able to do so upon terms satisfactory to said Steketee.
“2. If such tenant is procured, said Steketee will make no claim upon said Pratt for rental of said store for any time subsequent to the commencement of such tenant’s term of rent.
“3. Said Steketee does not, by making this agreement, waive any right or claim of right to recover from said Pratt for any time that said store shall not be rented to such tenant subsequent to December 1, 1898.
“4. Said Pratt does not, by making this agreement, admit that he is or will be liable to said Steketee for rent of said store from or after December 1, 1898.
“Dated November 4, 1898.
“Charles R. Pratt.
“ George G. Steketee.”

Mr. Maher found a tenant, whose term began March 24, 1899. It is to recover the rent for the period the store was unoccupied that this proceeding is brought.

To the declaration filed by the plaintiff, the defendant pleaded the general issue, and gave notice of the following defenses:

“1. That the contract of lease between the said parties was a lease at will, terminable by 30 days’ notice, and that the same was terminated in due form, in writing, before any of the sums claimed by said plaintiff in his declaration as due him matured, and that the same were not earned by plaintiff.
“2. That plaintiff could have replaced defendant by a tenant before any of the said sums claimed by him were lost by plaintiff by the vacancy of the building described in declaration.
“3. That nothing is due plaintiff from defendant.”

In his opening statement to the jury, counsel for defendant claimed that what occurred between the parties was simply an agreement that a lease should be executed, and that no lease was ever made. He claimed that, as the oral talk was for a leasing for a term of years, it was void, and that the tenancy was a tenancy at will. On the defense he showed as follows by Mr. Doran, defendant’s attorney:

“I served a copy of this [referring to paper]. I served it on Mr. Steketee personally on October 29, 1898. I served at Mr. Pratt’s request or instructions, as his attorney. (Said paper was then read to the jury as follows:)
“ ‘Please to take notice that, on the 30th day of November next, I shall quit possession and remove from the premises I now occupy, known as the store and basement at No. 89 Monroe street, in the city of Grand Rapids.
“ ‘Dated this 28th day of October, 1898.
“ ‘Yours, etc.,
“ ‘ Charles R. Pratt.
‘“To George G. Steketee, Owner.’
“The last of November (30th of November), I took the keys — -after everything had been cleaned out of the store— I took the keys over. Well, I went to Maher & Salsbury’s office, as they were attorneys for Mr. Steketee, and they were not in town; they were not either of them (Mr. Maher or Salsbury) in; and I went to look for Mr. Steketee, and I found him at the Masonic rooms, playing cards. I tendered him the keys. He says, ‘You give them to Maher & Salsbury.’ I says, ‘They are not in town today.’ ‘Well then,’ he says, ‘they are all right. Take them and deliver them over to the office.’ I says, ‘You are the person to deliver them to.’ He says, ‘You take them over there.’
“Q. Did you do so?
“A. Yes, sir.
Q. When was that ?
“A. The 30th of November.
“Q. 1898?
“A. Yes, sir.”

Cross-examination by Mr. Maher:

“A. Mr. Steketee did not mention Mr. Salsbury’s name. He says, ‘ Mr. Maher is my attorney; ’ and I told him I had been over to your office.
“Q. At that time you knew of the arrangement that had been made ?
“A. Yes, sir.
“Q. You yourself had delivered to me this paper with Mr. Pratt’s signature on it ?
“A. Yes; that’s right.
“Q. You went there to deliver the key to me, in the first instance, before going to Mr. Steketee?
“A. Yes, sir. Well, I wanted to see you about whether you would consider it all right for me to deliver it to you, or if I should see Mr. Steketee and deliver it personally to him, and found you were not in town; that is what the office informed me.
“Q. You left the key there at my office?
“A. I did, after I had seen Mr. Steketee, and he told me to leave it at your office. I offered it to him, and he told me it was all right to leave it at your office.”

Mr. Steketee’s version of the transaction is as follows:

Q. Do you know what became of the key or keys of that building on their surrender by Mr. Pratt ?
“A. My attorney, I believe, had it. I do not know when it was they were turned over to him. I remember of their being brought to me by Mr. Doran. I don’t remember when that was. He brought them to me. I says: ‘ I have nothing to do with them. You take them to my attorney.’
‘c Q. Mr. Maher was your attorney in that transaction, the same as in this one ?
“A. Yes, sir.
Q. Didn’t Mr. Doran say to you at that time that your attorney was not in the city ?
“A. No, sir.
Q. And that you stated to him he should leave the keys in the office ?
“A. He did not.”

I have quoted all of the testimony upon the subject of the surrender of the keys.

The plaintiff requested the judge to direct a verdict in his favor. This he declined to do. The defendant requested the court to instruct the jury that the tenancy was at will, and was terminated by the notice served in October, and defendant was under no obligation to pay rent after November. This the judge declined to do. He instructed them that the bargain created a tenancy from year to year, or at least for one year, and then proceeded to tell them that the parties might surrender their rights under such a lease, and told them, if Mr. Steketee accepted the key, intending to surrender his rights under the lease, that he could not recover. This last proposition was error. It was the theory of the defendant, from the time he interposed his plea until he filed his request to charge, that the tenancy was one at will, which had been terminated by notice. There was no claim in the case, until made by the circuit judge, that, by the delivery made of the key by Mr. Doran, the plaintiff had changed the legal relations, whatever they were, which existed between the parties. It is evident Mr. Doran was seeking by giving the notice in October to terminate the tenancy in November, which he construed to be a tenancy at will. Giving his version of what occurred at the time he offered the key to the plaintiff the. most favorable construction possible to the defendant, it is consistent with the idea that he was referred by the plaintiff to Mr. Maher because, by the agreement between the parties, Mr. Maher was to get a tenant as soon as he could. It fails entirely to show that Mr. Steketee intended by that act to surrender the rights which he claimed existed by virtue of the bargain made between the parties. In Stewart v. Sprague, 71 Mich. 50, it is said, “In all cases of a leasing, to show a surrender, a mutual agreement between the lessor and the original lessee that the lease is terminated must be shown.” It must be shown the lessor and the lessee mutually agreed to a surrender of the term. This was not done, and the court erred in allowing the jury to so find, in the absence of any testimony tending to show that it was done. Scripps v. Reilly, 38 Mich. 10.

It was urged in the court below, and it is urged here, that the tenancy wás a tenancy at will; counsel citing, among other cases, Barrett v. Cox, 112 Mich. 220. In that case Justice Montgomery said:

“In the present case, the oral lease being void, there was no definite term of occupancy fixed by the contract. Neither was there a reservation of annual rent, or rent payable at any stated intervals. Under these circumstances, we think a tenancy from year to year cannot be said to have been created.”

In the case at bar there was to be an annual rental of $1,400, payable monthly in advance. In Huntington v. Parkhurst, 87 Mich. 38 (24 Am. St. Rep. 146), there is an exhaustive discussion of this question, and it is shown that the tenancy created here was from year to year, or at least was for one year.

Under the facts as shown upon the trial, a verdict should have been directed in favor of the plaintiff.

■Judgment is reversed, and new trial granted.

Grant, C. J., Montgomery and Long, JJ., concurred. Hooker, J., took no part in the decision.


author: Long, J. Grant, C. J.

text:
    KOMPASS v. LIGHT.
    1. Malicious Prosecution — Attachment—Advice oe Counsel— Probable Cause.
    Proof that defendant in an action for malicious prosecution of a writ of attachment acted upon the advice of counsel, given after a full and fair statement of all the material facts known to defendant, establishes probable cause, even though the advice given was not warranted by the facts disclosed to the attorney.
    2. Same — Questions eor Court.
    The question of probable cause for suing out a writ of attachment is one of law for the court, where the facts are undisputed.
    3. Attachment — Excessive Levy.
    The fact that property seized on attachment for a debt of $1,150 was inventoried at $4,400 does not show that the levy was so excessive as to defeat plaintiffs rights under the writ.
    Error to Berrien; Coolidge, J.
    Submitted October 24, 1899.
    Decided December 2, 1899.
    Case by Rudolph E. Kompass and Matthew Stoll, co-partners as Kompass & Stoll, against William Light, for malicious prosecution of a writ of attachment. From a judgment for defendant, plaintiffs bring error.
    Reversed.

      Marshall L. Howell and Edward, Bacon, for appellants.

      O’Hara & O’Hara, for appellee.
   Long, J.

Plaintiffs commenced business in Niles in 1895, as manufacturers of tables. They constructed a factory and bought machinery. It appears that a considerable loan of money was necessary with which to commence business. They gave a mortgage on the real estate to Reddick & Johnson for $7,800, payable in monthly installments of $50. In 1897 the firm became. largely indebted. It owed the bank at Niles something over $7,000, and also owed the defendant $1,150. It gave the bank a chattel mortgage for the amount of its claim. This mortgage was given December 9, 1897. On January 15th following, the defendant sued out a writ of attachment against the plaintiffs in the circuit court of that county, stating in his affidavit for the writ that “he has good reason to believe, and does believe, that the said defendants have assigned, disposed of, and concealed their property with intent to defraud their creditors.” The writ was placed in the hands of the sheriff, and he at once took possession of all the property in and around the mill, which property was inventoried at the sum of $4,401.60. The sheriff, also, under the direction of the attorney for the plaintiff in the writ, closed the mill, and held possession of the property until February 1st following. The plaintiffs here were at that time employing some 25 or 30 men, and apparently doing quite a large business. The plaintiffs here commenced proceedings before the circuit court for a dissolution of the attachment, and on February 1st the attachment was dissolved, and the plaintiffs restored to possession. The present suit was then commenced to recover damages which plaintiffs claim resulted from the malicious and wrongful suing out of the writ of attachment. The case was tried before a jury. Verdict was returned in favor of defendant, and plaintiffs bring error.

The defense was that there was probable cause for the suing out of the writ, that there was no malice, and that defendant relied upon the advice of his counsel.

The court charged the jury upon these questions as follows:

“If he [defendant] has no cause of action, and knows it, or believes he has none, or has no good reason to believe he has any, he is liable in this form of action; but if he has reason to believe that a fraudulent conveyance has been made by the debtors, or that they have concealed their property fraudulently, and in good faith causes a writ of attachment to issue upon those grounds, and because he believes that a fraud has been perpetrated, then he is protected from liability. In such cases probable cause exists. He cannot act upon every surmise or conjecture, unwarranted by any facts or information. He must have such facts and information before him as lead men of ordinary prudence, under like conditions, to believe that a fraud has been committed. It is claimed in this case by the defendant that he is protected from liability on account of the advice of counsel. - The general rule is, if a client in good faith states all the facts which he knows or could have learned by reasonable diligence to his attorney, and his attorney then informs him he has a cause of action, and he after that acts upon such advice, he is protected from liability by reason of such advice. The facts communicated must bear upon the remedy adopted. In this case it is claimed by the defendant that he proceeded upon the ground that the chattel mortgage to the bank was void, and the plaintiffs had fraudulently concealed their property. If he stated all the facts to his attorney bearing upon these issues, and the attorney thereupon advised him he had a cause of action, he would be protected, if he acted in good faith. If, however, attachment proceedings were instituted, not because he had good reason to believe the chattel mortgage was void, but as a mere expedient to collect a debt when he knew he had no ground to base an affidavit of attachment upon, then he would be liable. If the attachment proceedings arose from a mere arrangement between the attorney and client for the purpose of collecting a debt, when they both understood that they had no ground for suing out the attachment, the client would still be liable. The client has a duty to perform as well as the attorney. He must act in good faith, and with a belief, not merely that an attachment is the remedy, but the proper and lawful one. If he has disclosed the facts, and the attorney then tells him that such facts furnish sufficient ground for him to make the affidavit, and the client relies-in good faith upon this advice, and makes the affidavit, he will be protected. It is contended by the defendant that such is the fact. It is contended by plaintiffs that the defendant did not state any facts authorizing, or tending to authorize, the making of the affidavit for attachment, and the attachment was instituted, not because there was any lawful ground for it, but simply as an experiment, without lawful ground, to enforce the payment of the defendant’s claim. This is a matter of fact for you to determine.
“It is also claimed that the act of the defendant in suing out the attachment was reckless and negligent. If this be so, the defendant is liable, even though the áttorney may have advised him to commence attachment proceedings. A mere direction by the attorney to commence an attachment is not sufficient alone to protect the client from liability. It must be advice that the attachment proceeding is proper and authorized, upon the facts stated by the client to counsel, or upon facts known by both, or advice that the client has good reason for instituting the attachment. The attorney, however, may be mistaken in giving his opinion, — that is, he may be mistaken as a matter of law, — and yet, if the. attorney gives his advice in good faith to his client, the client would have a right to rely upon it even though the attorney was mistaken. If the attorney informed his client, after a full statement of the facts, that an attachment proceeding is proper and lawful, and the client himself acts in good faith and relies upon the advice, he is protected. A client cannot act, however, upon mere suspicion or conjecture alone. He must exercise that prudence which men of ordinary prudence would use under like conditions. Then the law will protect him. If he acts carelessly and recklessly, he is liable for the consequences of his wrongdoing. Attorneys sometimes advise clients to commence attachment proceedings, not because there is lawful ground for it, but as an expedient for forcing the payment of a debt. In such cases they inform their clients very often, although they have no good ground for attachment, that they stand a good chance of collecting their debt in this way. In such cases the client takes his chances. He is liable for damages if he causes property to be seized ' under such circumstances. Of course, in this case, the defendant denies that any such circumstances exist, while the plaintiffs claim that they do exist.
“There are two main questions before you: First, whether there was probable cause for the issuing of this attachment; second, whether the advice was given by counsel under such circumstances that it furnished a protection to the defendant in this case. Those are the two main questions. So far as the question of the unlawfulness of this attachment proceeding, that has been determined by the proper tribunal having jurisdiction in the matter. That tribunal decided that the attachment itself was unlawful, and no cause existed for it. So there is nothing upon that question for you to act upon. You are simply to act upon the question whether there was probable cause for getting out the attachment, and whether the defendant acted upon legal advice, under circumstances that justified him.”

Counsel for plaintiffs asked the court to charge:

1. That plaintiffs are entitled to recover, and the only question for determination is the amount of the verdict.

2. That the advice of defendant’s counsel was not given upon such a state of facts as makes it a protection to the defendant.

3. That the levy was excessive to such an extent as to make the defendant liable.

4. That the writ of attachment dated January 15, 1898, was illegal, and was adjudicated to have been issued without any valid cause whatever.

These requests were refused, except the last, which was given in the general charge. The main contention in the case arises out of the first and second requests to charge.

The facts testified to by the defendant, and upon which he claims to have acted, are that Kompass & Stoll owed him $1,150; that he had dealt with them for several years, and had been in the habit of taking their notes for lumber sold them, and discounting them at the bank, where they would be paid by Kompass & Stoll when due; that, as to • this claim of $1,150, he tried to get a note from Kompass & Stoll, but, before doing this, he went to the cashier of the bank, and was informed by him that, if the books of Kompass & Stoll showed that they were doing as well as they thought or claimed, the bank would take the note if he got it; that, not getting the note, he delayed a week, and then found that Kompass & Stoll had given the chattel mortgage to the bank for $7,660.72, covering the whole of their personal property. This mortgage was given December 9, 1897. Defendant also testified that, on December 23d following, he received a circular letter from Kompass & Stoll, as follows:

“Niles, Mich., Dec. 23, 1897.
“Dear Sir: It is unnecessary for us to say that the past two and a half years that we have been in business at Niles have been hard years for small manufacturers of furniture. We have worked hard and practiced the strictest economy, but the pinch lasted too long, and the First National Bank of Niles, which has carried us since we started in business, compelled us to secure them by chattel mortgage, December 9, 1897. The debt amounted to $7,660.72. We also owe a mortgage of $7,800 on our plant, put on in July, 1895, to raise money for its construction. On this we have 13 years’ time from July, 1895, in monthly payments. There is balance due on same of $7,100. If bank forecloses their chattel mortgage, we are satisfied the assets will not bring enough on forced sale to pay the mortgage. We have friends who will give assistance to enable us to go ahead and finish up stock on hand, and we believe we can save a thousand dollars out of it for creditors, and continue the business. This assistance we can only get cm condition we can compromise our debts and save the business. Our unsecured indebtedness is $7,091.72, and we figure we can pay 15 cents on the dollar if we get the assistance. We send this statement to each of our creditors, and, if the same is accepted by all before the 15th day of January next, we will pay the 15 per cent, on or before February 1, 1898. We are willing any creditor or committee of creditors come here and investigate our affairs. If this offer is accepted, please sign and return inclosed sheet, filling in amount of your claim.
“Yours,
“Kompass & Stoll.”

Defendant also testified that he had heard that a man by the name of Imhoff was intending to bring replevin for some lumber; that he (defendant) then procured a copy of the chattel mortgage given to the bank, and took it to his attorney. On defendant’s direct examination, he testified, in response to a question asked him by his attorney:

“ I left the whole thing to you; didn’t make any plan; it was your plan. * * *
Q. I told you to sign that affidavit ?
“A. Yes, sir. * * *
Q. You did that because I told you to ?
“A. Yes, sir.”

On cross-examination defendant testified that he authorized and ratified everything his attorney did.

The attorney for defendant testified:

‘£ I was kept advised from time to time by telephone by Mr. Ferguson, the sheriff, as to what was going on. Whatever Mr. Ferguson did at Niles he did under my instructions. * * * It was by my authority that the factory was shut up and kept shut. I didn’t order the attachment of $4,000 worth of stuff. It was to take it all, every single thing there, except exemptions; take every other thing he could find there, without regard to the value of it, to compel the payment of the debt. I had a homely idea that possibly they might pay; if they didn’t pay, they would resort to replevin. I thought of the question of the dissolution of the attachment. I thought it would go through the ordinary way; the circuit judge would have other business than to sit and try the case as commissioner. Inasmuch as there was a circuit court commissioner at Niles, it would be before the circuit court commissioner, and, if it was adverse, we could appeal to a jury of Berrien county, so we could hold the attachment on the property. My idea was to get the money. I don’t know whether I said at Niles that, if it was brought before a commissioner, we would have held it there until we got our judgment; I would have done so, whether I told you so or not. I didn’t believe there would be any proceedings to dissolve the attachment. I thought, if the money wasn’t paid, the remedy would be replevin by the bank, because I made up my mind, if the bank insisted that the mortgage was a good mortgage, they would have the manhood to assert it in a court of law. Mr. Light was able to pay the damages. We were unable to show by a fair preponderance of the evidence, to the satisfaction of the court, that the mortgage was fraudulent. The burden of proof was upon us. In. a replevin suit the burden was upon the other fellow to show it was good; that is what I figured on; if the evidence was equally balanced, we would win.”

The defendant also testified that he thought if he took everything plaintiffs would settle up. He further stated that his attorney told him to hurry up, and get there before Imhoff could bring replevin. The only reason given by defendant or his attorney for believing that the mortgage to the bank was fraudulent was because it was too large for the amount of the indebtedness. No proof was made in the case that the mortgage was not given for the actual amount of the indebtedness, and neither of these witnesses testifies to any fact or circumstance which came to his attention before the attachment was issued which in the slightest degree had a tendency to show that the mortgage was fraudulent. It appears that they made no inquiry about it, saw none of the officers of the bank, and made no inquiry of Kompass & Stoll. The only reasons given by the attorney for thinking the mortgage was fraudulent were the following:

“It was not the Imhoff matter alone that made me think the mortgage was fraudulent. Taking, the mortgage and the letter [the letter written by plaintiffs to defendant, above set forth], and the other mortgage, and the fact that Johnson held the other mortgage for $7,800, to be paid $50 per month, without interest, and there ought to have been paid on it something like $1,300, and only $700 paid on it, according to their letter. From my understanding of the law, the bank could not hold real-estate security. The title to that first mortgage was actually in the bank; that is, the loan was made by the bank, and the mortgage was actually the bank’s. I thought the bank would bring replevin.”

It appeared that the title to this first mortgage was in Mr. Johnson, and not in the bank. There was no claim but that this real-estate mortgage was bona fide.

There is no evidence in this record- tending to show probable cause for issuing the writ of attachment. Where the facts are undisputed, probable cause is a question of law, to be determined by the court upon the facts of the case. Le Clear v. Perkins, 103 Mich. 131 (26 L. R. A. 627); Israel v. Brooks, 23 Ill. 575; Cloon v. Gerry, 13 Gray, 201.

But it is contended by counsel that, the defendant having fully and fairly placed all the facts before his counsel, and acted upon his opinion, probable cause is established. It is the rule that where one places all the facts before his counsel, and acts upon his opinion, proof of the fact makes a case of probable cause, provided the disclosure appears to have been full and fair, and no material facts are withheld; and this may also disprove malice. Stanton v. Hart, 27 Mich. 539; Perry v. Sulier, 92 Mich. 75. There is nothing in the present case showing, or tending to show, that the defendant did not place all the facts within his knowledge before counsel; and, under the well-settled rule in this State, the advice given to him by his counsel is a sufficient showing of probable cause.

It is contended, however, by counsel for plaintiffs, that the advice of counsel cannot protect unless it is founded upon facts tending to justify the advice. If this were the rule, we would be led to the conclusion that the facts stated to the attorney did not justify the advice given, and the case should be reversed. But the rule is not limited to that extent. The advice may not be justified by the facts stated, yet if the party takes the advice of counsel after statement is fully made, and acts upon such advice, probable cause is established. That question was very fully and fairly left to the jury under the charge as given.

But, as we have said, the facts upon which the defendant claims to have relied as a justification for suing out the writ do not establish probable cause. The court was therefore in error in leaving that question to the jury. We are unable to say that the jury did not rely upon that part of the charge in finding the verdict they did, rather than upon the fact that the defendant relied upon advice of counsel.

The court properly refused to give the first and second requests to charge. In effect, the court did give the fourth request. We think the third request should not have been given, as there was no such excessive levy, as claimed, as could affect the defendant’s rights under the writ.

For the error pointed out, however, the judgment must be reversed, and a new trial granted.

Montgomery, Hooker, and Moore, JJ., concurred with Long, J.

Grant, C. J.

I concur in the conclusion reached by my Brother Long. I am, however, of the opinion that there was no question of fact for the determination of the jury, except the amount of damages sustained by the plaintiffs. Neither the defendant nor his attorney had any facts before them sufficient to justify either in making an affidavit that he had good reason to believe, and did believe, that the plaintiffs had assigned, disposed of, and concealed their property with intent to defraud their creditors. The debts secured by the mortgages given by plaintiffs were bona fide, and neither defendant nor his attorney made any investigation or showed any reason for believing otherwise. Defendant did not testify that his attorney told him that the facts placed before him were sufficient to justify him in making the affidavit. It would be a reflection upon the intelligence of the attorney if he had done so. In reply to the question by the court, defendant testified:

“I told Mr. O’Hara— I says: ‘I don’t want to make a botch thing out of this. If you don’t think this thing will work, we will not go ahead at all; I will not run the risk.’ You talked very favorable that this was all right. I left the whole thing to you; didn’t make any plan; it was your plan.”

On cross-examination, he testified as follows:

“Q. All you told him up to that time was that there was two mortgages, and they owed you, and they hadn’t paid you. He told you to go and get a copy of the chattel mortgage, didn’t he ?
“A. Yes, sir.
“Q. He gave you no advice at all, did he?
“A. Gave me what?
‘ Q. Gave you no advice at all ?
“A. Not the first day.
“Q. The next day you saw him was the 15th, wasn’t it?
“A. I think so; yes, sir.
“Q. What did you tell him on the 15th?
“A. I didn’t tell him anything; he done the talking IyÍ ÍY1 QaI "p
“Q. What did he say?
“A. Told me the best thing was to get out a writ, and shut the shop down.
“Q.'Had. you told him anything else between the 6th and the 15th ?
“A. Not as I know of.
“Q. He said the best thing to do was to get out a writ, and shut up the shop ?
“A. Yes, sir.
“Q. What else did he-say?
“A. I don’t know.
“Q. Did he say anything else?
“A. Not as I know of.”

Defendant further told his attorney that he believed Mr. Kompass to be an honest man. It follows that defendant did not believe him guilty of any intent to defraud his creditors. When two defendants are jointly charged with the fraudulent disposition of their property, the attachment cannot be sustained unless fraudulent action is shown on the part of both. Cottrell v. Hatheway, 108 Mich. 619, and authorities cited. I think the record conclusively establishes that both defendant and his attorney sought to force the payment of his claim by seizing all the property of the plaintiffs, shown to be nearly four times the amount of his claim, and by closing up their business, and that neither had any facts before them sufficient to justify any reasonable person in forming a belief that plaintiffs were guilty of fraud.


author: Long, J.

text:
    FERGUSON v. WILSON.
    1. Appeal — Assignments of Error — Waiver—Briefs of Counsel.
    Assignments of error not mentioned in appellant’s brief will ba treated as waived.
    2. Same — Form of Brief — Court Rules.
    The nonobservance of Supreme Court Rule No. 40, prescribing the contents and arrangement of appellant’s brief, is criticised.
    3. Suits — Abatement and Revival — Formal Order.
    The fact that an order reviving a suit in the name of plaintiff’s administrator was signed by the attorneys, instead of by the court, is immaterial, where defendant afterwards pleaded the general issue without raising the objection, and, from the showing made, the court would have granted the order as of course.
    4. Chattel Mortgages — After-Acquired Property.
    A chattel mortgage securing the payment of a specified sum annually for a number of years, which covers specified chattels, and provides that it shall also cover “all other personal property that may be owned or acquired during such years,’.’ is void, as to subsequent good-faith purchasers gor attaching creditors, so far as it attempts to create a lien upon after-acquired property having no connection with that owned by the mortgagor at the time of the giving of the mortgage.
    Error to Sanilac; Beach, J.
    Submitted October 25, 1899.
    Decided December 2, 1899.
    Trover by James F. Ferguson, administrator of the estate of Charles Ferguson, deceased, against Henry W. Wilson. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      F. E. Burton and E. C. Babcock, for appellant.

      O. F. Gates and D. 8. McClure, for appellee.
   Long, J.

There are twenty assignments of error in this case. None of them are, however, mentioned in the brief of the appellant, except, perhaps, two. The ones not mentioned will be treated as waived, under the rule in Black v. Dawson, 82 Mich. 485. Supreme Court Rule No. 40 provides that the appellant, in his statement of facts, and distinct from the argument, shall state the errors upon which he relies, the questions involved, and the manner in which they are raised. This rule was adopted to save the time of the court in going through voluminous records to ascertain the questions involved and the errors relied upon, by putting this burden upon counsel for appellant. It is observed that many of the attorneys do not live up to this rule in full, as they very frequently mix up the facts with arguments and their conclusions drawn from the facts. No attempt has been made by appellant in this case to follow this rule. While we shall examine the case and determine the questions which we think are involved, it must not be taken as a precedent for future cases.

This suit was brought in trover by the administrator of the estate of Charles Ferguson, deceased, to recover the value of certain personal property. The cause was tried by a jury, who returned a verdict in favor of plaintiff. Defendant brings error.

1. It is contended that it developed on the trial, for the first time, that the plaintiff was acting as administrator for Charles Ferguson. From what we gather from the record, it appears that the suit was commenced in the lifetime of Charles Ferguson; that after his death it was revived in the name of his administrator, and a new declaration filed, to which the defendant pleaded the general issue only. The record shows the proceedings from the probate court appointing the plaintiff as administrator. While the order that the suit be revived in the name of the administrator appears to have been made and signed by the attorneys in the case, and not by the court, it is not shown that any objection was taken to the form of it when the declaration was filed, but that a plea of general issue was filed. On the trial, when the plaintiff sought to make his case, the objection was first made that the testimony could not be received because the suit had not been revived. This was overruled. While the order should have been signed by the court or entered in the court journal, instead of by the attorneys and entered in the book of common rules, yet there was no error in overruling the objection. It was shown by the records that Charles Ferguson had deceased, and that the plaintiff had been appointed administrator; and the order was one which the court would have granted, of course, upon this showing. The case will be treated as though the court had then and there granted the order.

2. Plaintiff’s claim to the property in controversy arises:

1. Under a certain chattel mortgage given by one George Wiggins to Charles Ferguson, plaintiff’s intestate, on November 1, 1893,' and filed in the town clerk’s office, November 6, 1893, the consideration mentioned being $150, and covering one bay horse, one gray horse, one binder, one mower, five yearlings, and one calf.

2. Under a chattel mortgage given by Wiggins to Charles Ferguson, October 27, 1893, and filed in the town clerk’s office, November 6, 1893, covering all the crops and stock raised on the farm let by Ferguson to Wiggins on that day, and also all the stock, sheep, cattle, hogs, horses, tools, and machinery that might be used or kept on said farm. This chattel mortgage is contained in a lease given by Ferguson to Wiggins for the farm, and to secure the rent thereof.

3. Under a bill of sale of all the property described in the two mortgages above mentioned, given by Wiggins to Charles Ferguson, and dated November 6, 1895.

The defendant claimed under a chattel mortgage given by Wiggins to him on February 6, 1893, to secure'the payment of $380, payable $50 each year for sis years, and $80 seven years from date, with interest at 7 per cent. This mortgage covered the binder claimed by plaintiff to be covered by his mortgage and bill of sale, and certain cattle, sheep, crops on the farm, etc.; and also provided that it should cover “all crops, of whatsoever name or nature, to be sown, planted, and grown on said premises during the years 1893 to 1899, inclusive, also all the increase of the above-described stock, and all other personal property which I may own or acquire during said years.” This mortgage was prior intime of filing to the mortgages given by Wiggins to plaintiff’s intestate, and was duly recorded in the town clerk’s office, and renewed from year to year.

The real controversy between the parties arises over the interpretation of the clause in defendant’s mortgage, “and all other personal propertj7 which I may own or acquire during said years.” It appeared that Mr. Wiggins was the owner and was in possession of the property described specifically in the mortgage given by him to the defendant. The court instructed the jury substantially that, as to the articles of property specifically mentioned in his mortgage, there could be no question as to defendant’s right and title, but that defendant could not claim a lien under the general clause, “and all other personal property which I may own or acquire during said years,” upon the property afterwards acquired, and having no connection with the property owned by him at the time of the giving of the mortgage. It is this last part of the charge of which counsel for defendant complain, their contention being that defendant’s mortgage was a lien upon all of the after-acquired property. It is conceded by counsel for plaintiff that it is settled in this State that one may mortgage after-acquired property, and the mortgage will be upheld; but it is contended that this rule does not apply to goods and chattels subsequently acquired which have no connection with property actually in existence at the date of the mortgage. This was undoubtedly the view taken by the court below. The general rule in many of the States is that at common law a mortgage can operate only on property actually in existence at the time of giving the mortgage, and then actually belonging to the mortgagor, or potentially belonging to him as an incident of other property then in existence and belonging to him; that a mortgage on goods which the mortgagor does not own at the time of making the mortgage, though he may afterwards acquire them, is void in respect to such goods, as against subsequent purchasers or attaching creditors; and the rule in Massachusetts and Missouri and some other States is that, if a mortgage be made of a stock in trade, it will not at law cover additions after-wards made to the stock, though it be expressly framed to cover additions to the stock intended to be'made to replace such as should be sold. Barnard v. Eaton, 2 Cush. 294; Gregory v. Tavenner, 38 Mo. App. 627. Cases from other States might be cited where the same rule is laid down. In this State, however, it has many times been held that a mortgage on a dealer’s stock may be made to cover after-acquired goods; but it is held that they must be brought within its descriptive words, and a mortgage drawn to cover goods to be “added to” the stock, or gotten “for use” in the business, will not include goods bargained for, but never received at the place of business, or which, on being received, are devoted to some other purpose. Curtis v. Wilcox, 49 Mich. 425.

In Eddy v. McCall, 71 Mich. 497, the property in question covered by the chattel mortgage was certain horses, wagons, etc., and certain mill machinery, lumber, shingles, posts, and other materials in and about the planing mill of the mortgagors. The mortgage contained the following clause:

‘ ‘And also all such other lumber, stock, or material of every kind which they may hereafter add to said business, and all other property which they, may hereafter purchase and use in connection with said business. ”

The property was attached by a creditor, and the mortgagee brought trover. It was held that the'clause in the mortgage was valid, even as against third parties; citing Gay v. Bidwell, 7 Mich. 525; People v. Bristol, 35 Mich. 29; Cadwell v. Pray, 41 Mich. 307; American Cigar Co. v. Foster, 36 Mich. 368; Curtis v. Wilcox, 49 Mich. 425; Leland v. Collver, 34 Mich. 418.

In no case, however, has this court held that a clause in a chattel mortgage like the one in the present case, to wit, ‘ ‘ and all other personal property which I may own or acquire during said years,” creates a valid lien upon after-acquired property not connected with the business in which the mortgagor was engaged, as against subsequent good-faith purchasers or attaching creditors, whatever may be the rule as between the parties themselves. The property in controversy here had no relation to that in possession of the mortgagor at the time of giving the mortgage. He did not then own the property, but afterwards acquired it, outside of the business in which he was then engaged. The case is not like the case of Eddy v. McCall, siipra, nor like the case of Dunn v. Michigan Club, 115 Mich. 409. In the last case it appeared that the mortgage covered all the mortgagor’s stock in trade, all book accounts, notes, etc., owned by him or appearing on the books of said business then being conducted by him, “and all future book accounts representing proceeds of sales of goods in mortgagor’s stock, and all additions to the same.” It was held that this covered all future book accounts, though not entered on the books.

The court below was not in error in the charge as given. The judgment must be affirmed.

The other Justices concurred.


text:
    SALTMARSH v. CHICAGO & GRAND TRUNK RAILWAY CO.
    1. Trover — Conversion op Bailroad Tibs — Measure op Damages.
    Where, in an action of trover, it appeared that plaintiff and-defendant had each contracted with a logger and sawyer for the delivery of a specified number of railroad ties, and that defendant had paid the seller for, and appropriated to his own use, ties manufactured from plaintiff’s logs and delivered upon plaintiff’s contract, the value of the ties, and not of the logs before they were made into ties, was the proper measure of damages.
    2. New Trial — Argument op Counsel — Misstatement op Evidence-Failure to Object.
    An application for a new trial on the ground that plaintiff’s counsel misstated the evidence in his argument to the jury is properly denied, where no objection was made at the time by ° defendant’s counsel, and their failure is sought to be excused only on the ground that they were not themselves sure that the language complained of was a misstatement.
    Error to Ingbam; Person, J.
    Submitted October 25, 1899.
    Decided December 2, 1899.
    Trover by John F. Saltmarsh against the Chicago & Grand Trunk Railway Company. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      L. G. Stanley (JE. W. Meddaugh and Geer & Williams, of counsel), for appellant.

      F. S. Porter, for appellee.
   Moore, J.

The plaintiff obtained a judgment in an action of trover against defendant for the value of nearly 1,000 railroad ties. There was no dispute about the defendant having received and converted the ties to its own use, but its defense was that it bought them of George Pope, who had a right to sell them, and paid him for them. The record discloses that prior to January, 1894, the plaintiff was the owner of a portable sawmill, which he had leased to his son, John A. Saltmarsh, and George Pope, who in February, 1894, moved the mill upon land owned by Hiram Smith, adjoining land owned by the plaintiff. It is the claim of plaintiff that upon his own land was timber suitable for ties, sufficient to make twelve or fifteen hundred of them. It is also his claim that young Saltmarsh and Pope bought of Mr. Smith, for the sum of $150, timber suitable for making ties. He claims Saltmarsh and Pope were indebted to him for the rent of the mill, and agreed to make for him 2,000 ties, and deliver them upon the right of way of defendant. February 15, 1894, plaintiff made a written contract with defendant to deliver to it, upon its right of way, 2,000 ties. It is the claim of plaintiff that, prior to March 28d, young Saltmarsh and Pope had paid Smith some money, and had sawed him 40,000 feet of pine, to apply on their timber purchase, and at the same date had delivered on the right of way of defendant, for plaintiff, upwards of 300 ties. On the 23d of March the partnership between young Saltmarsh and Pope was dissolved, and one formed between Pope and George Klotz. It is the claim of plaintiff that Pope and Klotz succeeded to the rights of Saltmarsh and Pope in the Smith timber and the mill. On March 23d the plaintiff made a contract with the new firm to cut and deliver to him, on the right of way of the defendant, 2,000 ties, 500 of which were to be delivered every 15 days, until all of them were delivered. It is his claim that, early in May, 957 of these ties had been delivered on the right of way for him, and it is these ties which are in controversy. It is the claim of defendant that the Smith timber was bought by Pope, and that Pope rescinded the contract with the plaintiff in April. On the 2d of May Pope entered into a contract with the defendant, in his own name, to furnish it 2,000 ties. The 957 ties in dispute were received by the railroad company, who on June 27th paid Pope for them. All of these ties were cut by the mill operated by Pope and Klotz, and it is the claim of the plaintiff that he had no knowledge of such a contract until the day Pope was paid for the ties. The plaintiff testified he had no knowledge of this contract, and Klotz also testified he had no knowledge of it, until the 27th of June. A second 1,000 ties were made and delivered by Pope and Klotz to defendant. Both the plaintiff and Pope claimed title to these ties, and the defendant declined to take them until both consented in writing that it might do so and pay the money to Mr. Sturgis, a justice of the peace. This was done, and the title to those ties is not in controversy here. All of the ties were cut by the mill originally owned by the plaintiff. The respective parties gave testimony tending to support their claims. The testimony was very contradictory. The circuit judge gave a very long and careful charge to the jury, who returned a verdict in favor of the plaintiff.

Many assignments of error are made and discussed, which we do not think it would be profitable to discuss in this opinion.

Counsel say in their brief that the purchase by Pope of the Smith timber is one of the salient points of the defense, and is not disputed. Counsel are in error in this. The testimony and some of the established facts in the case indicate that the purchase of this timber, while made by Pope, was for young Saltmarsh and Pope, and was in large part paid for by them, and that Pope and Klotz succeeded to their rights in it.

It is claimed the contract was for 2,000 ties, and was never completed, and that plaintiff could not be deemed to have accepted any of the ties until they were marked by the number of his contract, and that the court erred in his instruction to the jury in relation to delivery. The contract did not provide the title should not pass until the ties were marked. It did provide where they should be delivered, and that 500 of them should be delivered every 15 days. Without going into detail, it may be said the charge of the court upon that feature of the case was quite as favorable to the defendant as it was entitled to have it.

Complaint is made because the court charged the jury that the measure of damages to which plaintiff would be entitled should be the value of the ties, and not the value of the logs before they were made into ties. Before there was any delivery of this timber upon defendant’s right of way, it was manufactured into ties. When the title passed to the plaintiff by the delivery upon defendant’s right of way, he became the owner of the ties. They were after-wards converted to the use of the defendant. If the plaintiff was entitled to recover at all, the measure of damages was correctly stated by the learned judge.

After the judgment a motion was made for a new trial, —among other reasons, because counsel for plaintiff had improperly stated the testimony in his argument to the jury. This motion was based upon the affidavit of the court stenographer, which affidavit was controverted by the affidavit of the attorney. The circuit judge overruled the motion. He finds that the counsel used the language as testified by the stenographer. He also finds the argument of the counsel was not objected to at the time it was made, and was of the opinion that no harm was done by the argument. Counsel seek to excuse their failure to call the attention of the court and counsel to the misstatements made in the argument by the fact that they were not able to get a statement from the stenographer earlier that the attorney was misstating the evidence. If the recollection of the counsel as to the evidence was so faulty they could not rely upon it sufficiently to call the attention of the counsel and court to the fact, not very much blame can attach to opposing* counsel for not correctly remembering it. Counsel heard the argument of the attorney for the plaintiff. They made no claim to either the court or counsel that the argument was an improper one. They cannot remain silent, as we have repeatedly said, under such circumstances, until a verdict is rendered against their client, and then use the improper argument as a basis for a new trial.

Judgment is affirmed.

The other Justices concurred.


text:
    GORDON v. ALEXANDER.

    1. Insolvent Debtors — Sale op Stock — Consideration.
    Where demand negotiable notes were given for the sale of an insolvent’s stock, and the buyer paid a debt of the insolvent, on which he was liable as surety, it cannot be said that the sale was without consideration.
    2. Same — Requests to Charge — Fraud.
    A request to charge which assumes the existence of fraud on the part of an insolvent in the transfer of his stock of goods is properly refused, where there is evidence from which the jury might find that the transfer was in good faith.
    3. Trial — Refusal of Instructions — Harmless Error.
    Refusal to give an instruction to which appellant was entitled will not warrant a reversal, where the verdict, viewed in the light of the general charge, shows that the refusal worked no harm to the appellant.
    Error to Sanilac; Beach, J.
    Submitted October 25, 1899.
    Decided December 2, 1899.
    Trover by James G. Gordon against Joseph C. Alexander. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Bacon & Palmer, for appellant.

      J. 8. Crcmdell and W. H. Burgess, for appellee.

       Rehearing denied April 3, 1900.

   Moore, J.

Plaintiff sued defendant in trover. The declaration contained a count claiming special damages for injury to his business and credit because defendant unlawfully took his goods froth him. He recovered a judgment of upwards of $1,800. The charge of the court contains a statement of the claims of the respective parties, and is as follows:

“Previous to November 12, 1891, Alexander McDonald had been engaged in the mercantile business at Tyre, in this county, — general merchandise. At that date he was largely indebted, and on that date he made a sale of his entire business to the plaintiff in this case. On that sale nothing was paid down’ by the plaintiff, who bought of McDonald, but notes were given by Gordon, the plaintiff, and taken by McDonald as a consideration for that purchase. It appears from the undisputed testimony that those notes were payable on demand, which fact made them payable immediately, and that Gordon went into possession of the business and the stock of goods; that some time in March, 1892, Allan Shelden, a creditor of McDonald, procured an attachment from this court, and attached and took possession of the entire stock in Gordon’s possession, and afterwards made a sale of it, and closed out the stock and business. Now, this action is brought by Mr. Gordon, as plaintiff, claiming that he was the actual, bona fide owner of that stock of goods, and that he is entitled to recover in this action. His claim is, the value of that stock of goods, as being the owner, and having been wrongfully deprived of them.
“Now, the defense meet that claim of ownership by this claim, — that the sale by McDonald to Gordon was a fraudulent sale; and they make the particular claim that it was made with the intent to hinder and delay McDonald’s creditors in the collection of their debts. They claim that, so far as Gordon’s purchase was concerned, it was not a bona fide purchase, within the law, because there was no actual consideration paid, as they claim; the consideration being evidenced by notes, simply. The defendant claims that the facts and circumstances concerning the transaction were such as to indicate that the transfer was fraudulent on McDonald’s part, at least; and they also claim that it was fraudulent so far as Mr. Gordon was concerned. They claim that he had notice from the facts and circumstances of the conditions under which the sale was made. Now, gentlemen, the first prime question of fact for you in this case is this: Was the sale by McDonald, on McDonald’s" part, a fraudulent sale? It will not matter, under some phases of the law, whether Gordon knew of that fraud or not, as I shall explain to you hereafter. The first prime question is, What was McDonald’s purpose, or what was the effect as to creditors of his acts, under these circumstances ? Now, the testimony, as I have said to you, indicates a certain condition of the affairs of Mr. McDonald at that time, — that he was very largely in debt, in excess of any visible property in the business there; that demand had been made upon him for payment, and that conversations had been had with representatives of the defendant in this case, Mr. Shelden, and that following these conversations this sale was made; that no money was paid down upon that sale; and that demand notes were taken. From these principal facts, and the facts that the parties connected with the transaction were relatives, and some other circumstances concerning the transaction, it is claimed by the defendant here that the transfer was, in law and in fact, fraudulent.
“Now, I say to you that question of fact is for you to determine. Now, an act may be fraudulent as to creditors when it was not really intended as such, — when there was no direct purpose. For instance, a man may be in business, and may be very largely indebted; he can sell in the ordinary course of business, from his store, all the articles of merchandise which he has, and such a sale is not fraudulent as to creditors, because that is the only purpose of his business. He is there for that purpose, and his creditors presume that he will sell in the ordinary course of business. And a person under these circumstances may close out his entire stock, and clean up the business; and such an act as that may, under some circumstances, be fraudulent as to creditors, because the creditors have relied, presumably, upon his continuing his business, and that he would pay them from the proceeds of the business, as his business went on in the ordinary course of commercial transactions. -Now, I say to you,you have a right to take into consideration all these circumstances existing at this time, — the situation in which Mr. McDonald was as to this creditor, the amount of his stock, the relationship of the parties, the pressure of creditors, and any other circumstances which you have in evidence,— and then determine for yourselves the fact as to whether McDonald’s act, of itself, was fraudulent as to these people whom he owed, as putting his visible property beyond the reach of their process, or of delaying or 'hindering the creditors in the collection of their claims. That is the first question for you to determine. If you find that McDonald’s transactions there in that respect hindered or delayed, or had the effect to hinder or delay, the creditors in the collection of their claims, by putting his visible property out of his possession, then that would be a fraudulent act, within the meaning of the law. It is for you to say whether it was so, under these facts and circumstances, or not. Now, if you should find that it was not fraudulent on McDonald’s part, then you will find a verdict here for the plaintiff.
• “If you find that it was fraudulent on his part, then there would be other questions for you to determine, as to the amount, — whether any recovery can be had or not. If you find that it was fraudulent, and that his stock was subject, under the law and under these instructions, to the attachment, then there would be the other question, as to whether Gordon had notice of McDonald’s purpose in the disposition of this stock. If Gordon knew — had knowledge — that McDonald’s purpose was fraudulent, then he cannot recover anything in this case. But, if he didn’t have knowledge that the sale was fraudulent on McDonald’s part, then he would be entitled to recover back such sum as he had actually paid, less what he had received from the property. Now, there may be some difficulty in arriving at that amount, under the testimony here, but you are to take the testimony as near as you can get at it, if you find that Gordon did not have any notice or knowledge of the fraudulent purpose, and determine what he is entitled to. His testimony is that he paid $608 in money after the sale on the transaction, and that he retained of the property which he received some personal property. You will recollect that from the testimony. It is apparent that he must have made some sales from November to March. It is left in very great doubt what the amount is, but you have the two inventories, and, from all the facts that you may have there, you may determine, under this phase of the case, the probabilities. You are not required to arrive at that with actual, definite certainty, if you don’t have the testimony, but what are the probabilities as to the amount he has had out of that transaction.
“Mr. Burgess: And take into consideration the stock afterwards purchased and put in, and the horse and buggy and harness that he sold?
“Court: Yes.
“Mr. Crandell: I suppose, interest on the amount at 6 per cent, from March, ’92 ?
“Court: Yes; to date.
“One further proposition, perhaps, in relation to these notes, — in determining whether a valuable consideration was paid or not.- Those demand notes, as I say to you, were due immediately, being made upon demand. If there had been a transfer to Mr. McDonald’s brother the same day, they would have still been due, and past due, in the hands of the purchaser; so that Gordon, whenever he was attacked upon that sale, could protect himself against those notes in the hands of anybody. They were past due. You may take that into consideration in determining the character of the consideration paid, — whether it was valuable consideration, and whether he has been injured in the transaction otherwise than the payment of the actual money which he has paid upon the transaction.”

On thé trial the plaintiff was allowed to state what his credit was before his' goods were taken, and how it was afterwards. It is claimed this was error, as the measure of damages was the value of the property, with interest, at the time it was taken; counsel citing 2 Greenl. Ev. § 276; McGuire v. Galligan, 57 Mich. 38; Woods v. Gaar, Scott & Co., 93 Mich. 143. I do not think these authorities sustain the contention of counsel, but, on the contrary, they recognize that where special damages are the direct result of the unlawful taking of the prbperty, if they are alleged and proved, they may be recovered. See Wait v. Kellogg, 63 Mich. 138. The other justices are of the opinion it is unnecessary to discuss or determine this question, because, if it was error, the charge of the court and the verdict of the jury eliminated it. The case was submitted to the jury upon the sole theory that the value of the property seized was the measure of damages, and it is -evident that the jury followed the instruction.

The defendant requested the court to charge the jury as follows:

“1. Under the undisputed evidence in this case, your verdict should be for the defendant.
“2. It appears from the undisputed evidence that, at the time Alexander McDonald sold this stock of goods, he was largely indebted to Allan Shelden & Company and other creditors, and that the plaintiff did not pay a valuable consideration for the same, but gave his notes for the purchase price, and under those facts the plaintiff would not be a bona fide purchaser, and, if Alexander Me-Donald intended to defraud his creditors by the sale of this stock to Gordon, such sale would be void, even if Gordon had no knowledge of such fraud.
“3. If the sale of this stock of goods by Alexander McDonald to plaintiff had the effect of hindering or delaying his creditors, such sale would be fraudulent as to McDonald’s creditors, and, the plaintiff not having paid value for the stock, he is not a bona fide purchaser; and your verdict should be for the defendant.
“4. Under the undisputed facts in this case, plaintiff can, in any view of the case, recover from the defendant only the amount he had actually paid for the stock, less the amount which he had received from the sale of the horses, buggies, harness, and other goods; and the burden is on the plaintiff to show such amount.
“5. It appears from the testimony of the plaintiff that he has only paid the sum of $608 on the purchase price of the stock of goods and other property which he purchased from McDonald. It also appears from his testimony that he has disposed of the horses, harness, and buggy; that he continued to carry on the business and sell from the stock of goods from November 12, 1891, to March 20,-1892; and, under the undisputed facts in this case, the burden is on the plaintiff to show that he did not receive from such sales a sufficient amount to reimburse him for the sum paid by him on the purchase price; and, the plaintiff not having furnished any evidence from which the amount of such sales can be found, your verdict must be for defendant.
“6. The plaintiff was not a creditor of McDonald, but a purchaser; and, if he had knowledge of facts sufficient to put an ordinarily prudent man on inquiry, such knowledge on the part of Gordon would be sufficient to avoid the sale, without any active participation in the fraud by him.
It appears from the plaintiff’s testimony that the paper given by him for the stock of goods was dated the 12th of November, 1891, and was payable on demand, and that such paper has not been paid or renewed in any manner, nor has any suit or proceeding been commenced to collect the same; and I charge you that such paper is barred by the statute of limitations, and is not a valid claim against the plaintiff.”

These requests were refused, except as covered by the general charge. The refusal is said to be error. The first five and the last one of these requests could not be given by the court, under the evidence introduced by the plaintiff. He claimed that he made the purchase of the goods 'in good faith, without any knowledge of any intention on the part of Mr. McDonald to defraud his creditors, or that the fact of the sale would defraud his creditors. His claim was that, prior to the purchase, he had indorsed Mr. McDonald’s note for $300, and as part of the consideration for the purchase he assumed the payment of that note, and afterwards did pay it. He also claims that for some years Mr. McDonald was in partnership with his brother in this same business; that Mr. McDonald and his wife purchased the one-half interest of the brother in the business in August, 1887, for which they gave their notes, some of which were unpaid at the time the plaintiff bought the stock of goods; and that, to apply on this indebtedness, the notes plaintiff gave to apply on the purchase were turned over to the brother, who released Mr. and Mrs. McDonald for a like amount of their indebtedness to him, and after the notes were turned over he had paid on them $308, and promised to pay the balance when this litigation was ended. The brother also claimed that plaintiff had written him, promising to pay the notes as soon as he could. Plaintiff gave testimony tending to prove his claim. The law does not prohibit honest sales of goods upon credit, even though the seller is in debt at the time. It cannot be said that the giving of negotiable notes was not a sufficient consideration for a sale, and it is very clear that a part of the purchase price was paid by plaintiff. Dixon v. Hill, 5 Mich. 404; Lewis v. Rice, 61 Mich. 97; Wait v. Kellogg, 63 Mich. 138. These requests, except the sixth one, assume certain facts to exist, when there is evidence from which the jury might make a different finding. Under such circumstances, they should not be given. Lewis v. Rice, 61 Mich. 97.

The plaintiff did not claim upon the trial that, when he made the purchase of the stock, he was a creditor of McDonald. This being so, defendant was entitled to have his sixth request given. Hough v. Dickinson, 58 Mich. 89; Bedford v. Penny, Id. 424; Allen v. Stingel, 95 Mich. 195. But, in view of what follows, we think the refusal to give the request worked no harm to defendant. A reference to the general charge of the judge shows that the jury were instructed that, if Gordon knew McDonald’s purpose was fraudulent, he could recover nothing, but, if he did not have knowledge it was fraudulent, if it in fact was fraudulent, he would be entitled to recover such sum as he had actually paid, less what he had received from the property. The judge called the attention of the jury to the fact: ‘ ‘ His testimony is that he paid $608 in money after the sale on the transaction, and that he retained, of the property which he received, some personal property.” There was no claim plaintiff had actually paid, at the time of the trial, of the purchase price, more than this amount. The jury returned a verdict in favor of plaintiff of $1,834. The inventory made at the time the property was attached by the sheriff shows it was appraised at $1,827.93; so we think it clear the jury could not have returned the verdict they did, without finding the sale by McDonald was not fraudulent. This being so, it is evident the giving of the sixth request would have made no difference with the verdict. The plaintiff insisted the sale by McDonald was not a fraudulent sale. The defendant averred it was a fraudulent transaction. Each gave testimony tending to suppoi*t his claim. The weight of the evidence so given was for the jury. Lewis v. Rice, 61 Mich. 103; Redpath v. Brown, 71 Mich. 258; Cortland Manfg. Co. v. Platt, 83 Mich. 419; Ferris v. McQueen, 94 Mich. 367.

A motion was made for a new trial, based upon the errors assigned in the case as it is now here. ' The motion was overruled. There is nothing in the record that makes it our duty to overrule the action of the circuit judge in disposing of this motion.

Judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    REYNOLDS v. LEVI.
    Breach op Contract — Damages.
    Plaintiffs, having contracted to put down a drive well for defendant — a well that defendant could not pump dry — at a specified price per foot, and having made four borings, and abandoned each because of obstructions, cannot, when prevented by defendant from proceeding with a fifth boring, recover, as part of their damages for breach of contract, the cost of the four unsuccessful borings.
    Error to Sanilac; Beach, J.
    Submitted October 25, 1899.
    Decided December 2, 1899.

      Assumpsit by Dwain Reynolds and William N. Rogers against Edward Levi for breach of a well-drilling- contract. From a judgment for plaintiffs for less than the’ amount claimed, they bring error.
    Affirmed.

      F. F. Burton, for appellants.

      C. F. Gates and D. 8. McClure, for appellee.
   Montgomery, J.

The case made below, as stated by the plaintiffs and appellants, was as follows: On or about October 1, 1894, plaintiffs were the owners of a well-drilling machine, and were engaged in the business of drilling farm wells in the vicinity of Marlette, Sanilac county. Defendant was the owner of a farm near Marlette, upon which he did not live at the time. The parties entered into a verbal contract, under the terms of which plaintiffs were to put down a drive well on defendant’s farm, — a well that defendant could not pump dry, — for which defendant agreed to pay plaintiffs $1.25 per foot. Plaintiffs commenced .work, and, after going down about 100 feet, struck shale rock, and got “hung up.” Defendant was present at this time, and designated a new place for plaintiffs to drill, and also designated another place for plaintiffs to drill in case they got ‘ ‘ hnng up ” in the second hole. Plaintiffs made a new boring at the place designated by defendant, and, after going down about 60 feet, met with another obstruction, and had to pull out. Plaintiffs then made an arrangement with defendant to go aiyay for a time to do other work, and to return and start a third boring, and to board themselves on their return. Plaintiffs returned in the spring of 1895, and made the third boring-, going down about 70 feet, and, meeting with another obstruction, made a fourth boring in the vicinity designated by defendant, going down about 100 feet, when another obstruction was met; whereupon the parties made an agreement whereby the plaintiffs were to have time to get special tools with which to complete the work. Immediately upon obtaining the tools and the completion of the jobs on hand, per agreement with defendant plaintiffs proceeded to make another boring, and, after going down about 40 feet, were stopped by defendant. Under the charge of the court, recovery was limited to the last boring, for which plaintiffs received a verdict of $15.

The plaintiffs offered no proof of the damages sustained by the breach of the contract by defendant, except as the cost of the work in the effort to find water bears on the question. The plaintiffs contend -that the value of labor expended is the proper measure of damages. We do not consider this position tenable. The award of damages for a breach of contract is for the’ purpose of compensating the nondefaulting party for the injury sustained. It is apparent that, up to the time when the plaintiffs attempted the last boring, the labor which they had expended, and which, according to their present claim, amounted to nearly $250, had been expended in vain. No part of its cost could have been recovered if they had completed the contract. Why, then, should they recover it now, unless, instead of compensating them for the injury which they sustained by the breach, they be permitted to recover a sum which has no true relation to the damages sustained, but' operates rather by way of punishment to the defendant P It is none the more to be considered as compensatory because it happens to be a sum equal to the cost to them of work which before the breach proved unavailing. Had the plaintiffs shown loss of profits in putting down the well.on which they were at work, a different question would have been presented.

The judgment is affirmed.

The other Justices concurred.,