text:
    PAGE v. BOEHMER.

    1. Saving Questions for Review — Objection Below — Sufficiency of Petition for Highway.
    On error to review the judgment in an action of trespass for removing a fence obstructing a highway, the point that the petition for laying out the highway was insufficient cannot he first raised in this court.
    2. Highways — -Establishment—Petition—Requisites.
    The highest degree of certainty in describing a proposed highway is not required in the petition for laying it out; it being sufficient if places are designated which will enable persons familiar with the locality to locate the way with reasonable certainty.
    3. Same — Petition—Sufficiency.
    A petition for laying out a highway examined, and held, in view of the geographical situation, to sufficiently designate the proposed highway to confer upon the commissioner jurisdiction over the subject-matter of the proceedings.
    4. Same — Landowners—Jurisdiction.
    Jurisdiction over the person of an abutting landowner was conferred by his participation in the proceedings for the laying out of a highway, and taking an appeal.
    5. Same — Participation—Acceptance of Award — Estoppel.
    Where the commissioner had jurisdiction of the person and the subject-matter in proceedings to lay out a highway, the participation of a landowner in the proceedings, and his acceptance of the award, estopped him and his grantee from contesting the validity of the award.
    Error to Calhoun; North, J.
    Submitted October 14, 1908.
    (Docket No. 62.)
    Decided November 30, 1908.
    Trespass quare clausum fregit by James C. Page against Hugh Boehmer and others. There was judgment for defendants, and plaintiff brings error.
    Affirmed.

      Edward J. Dennison (Winsor & Miller, of counsel), for appellant.

      Hatch & Page, for appellees.

       Rehearing denied March 3, 1909.

   Blair, J.

This was an action to recover damages for an alleged trespass in removing a certain fence in the township of Lee, in Calhoun county. The defendants justified under the claimed statutory authority of the defendant Stultz to remove the fence as an obstruction of a public highway. The proceedings to lay out the alleged highway were founded upon a petition signed, among others, by William H. Hoag, describing the proposed highway as follows:

“Commencing on the section line running east and west between sections twenty (20) and twenty-nine (29) of said township where said section line intersects the road running north and south on the southwest quarter of section twenty (20) and the northeast quarter of section twenty-nine (29), running thence east on said section line until it connects with the highway already laid and opened on the section line between section twenty-one (81) and section twenty-eight (88).”

The premises in question are immediately north of “the section line between ” sections 21 and 28, and at the time of the condemnation proceedings were owned by said William H. Hoag. The only highway “already laid out and opened ” when the petition was filed, with which the proposed highway could connect “ on the section line between • section twenty-one (21) and section twenty-eight (28),” was a highway crossing said section line at right angles about 80 rods from the eastern boundary of the two sections. Notice was served of hearing upon the petition, and William H. Hoag appeared and was heard. The commissioner “did thereupon consider and determine that a highway was necessary, and should be and the same was thereupon, laid out,” and he awarded to the said Hoag the sum of $25 as compensation for his land con demned for the highway. From this determination of the highway commissioner Hoag appealed to the township board, of which, as supervisor, he was a member. The township board increased the award in favor of Hoag to $30, and, according to his testimony:

“I did not take an appeal after they appraised it. I read a line, and it said the town board’s decision was final, and I didn’t go any further. I took the order and collected it, and gave my vote.”

After voting for the award and collecting the sum awarded to him, Hoag sold the premises upon land contract to the present plaintiff, who was fully informed as to the condemnation proceedings and the collection of the amount awarded to Hoag.

The trial judge instructed the jury, among other things, as follows:

“ I simply say to you as a matter of law that under the undisputed proof in this case a highway along this line was laid out; that there might have been some irregularities in the proceedings by which it was laid out, but that notwithstanding that there were or might have been some irregularities; that the participation of Mr. Hoag in the proceedings of the township board when they met to review the proceedings of the commissioner, having taken an appeal to that board, and his subsequent acceptance of the compensation for the damages which resulted to his land, would constitute a waiver of those irregularities in the proceedings in establishing the highway; and that situation is not only binding upon Mr. Hoag, but is likewise binding upon his grantee, Mr. James Page, who is the plaintiff in this case. In other words, as I view the law, these parties cannot in this proceeding attack the regularity of that proceeding in laying out a highway on the ground that it is defective in the manner in which it is claimed in this case to be defective, for the reason that the conduct of Mr. Hoag has waived those irregularities and the defects, if any, are thereby cured, and the situation is binding upon Mr. Page, the plaintiff in this case. Now, the question has been suggested to you that there has been no release of a right of way of this particular strip of land, but I say to you as a matter of law, that if the proceedings are valid as I have already indicated to you, that the title to the land passed by virtue of the proceedings and by virtue of the party who is parting with the land having accepted the compensation assessed as being due him for resulting damages, the title passed as a matter of law.”

The only question of fact submitted to the jury was whether the commissioner had served the statutory notice to remove the fence, as to which the testimony was in conflict. The jury found that the notice had been served, and rendered a verdict in favor of defendants. Plaintiff brings the record to this court for review upon writ of error.

Plaintiff’s counsel contend:

(1) That the petition did not describe any highway between sections 21 and 28, but that the highway described terminated at the western boundary line of the sections and related solely to a highway between sections 20 and 29.

(2) That the commissioner did not file with the township clerk the record required by 2 Comp. Laws, § 4041, and that the return required by section 4038 was, as filed, defective, and the affidavit required by section 4039 was not filed.

1. This point was not made in the court below, and cannot be raised in this court for the first time. However, we are satisfied that, if it had been raised, it should have been overruled. The highest degree of certainty is not required.

“ If places are designated which will enable persons familiar with the locality to locate the way with reasonable certainty, the description will be deemed sufficient.” Elliott on Roads and Streets (2d Ed.), § 337.

In our opinion the petition did sufficiently designate the proposed highway between sections 21 and 28, and conferred upon the highway commissioner jurisdiction over the subject-matter of the proceedings.

2. It is clear that jurisdiction over the person of Hoag was conferred by his participation in the proceedings and taking the appeal. The commissioner having jurisdiction of the person and of the subject-matter, the participation of Hoag in and his acceptance of the award estops him and his grantee from contesting the validity of the award. Elliott on Roads and Streets (2d Ed.), § 367; Baltimore, etc., R. Co. v. Johnson, 84 Ind. 420; Branch v. Lewerenz, 75 Conn. 319; Pool v. Breese, 114 Ill. 594; Hunt v. Haven, 52 N. H. 162. There are no other points which, in our opinion, require discussion.

Judgment affirmed.

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


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    SOUTHGATE v. KARP.
    1. Wills — Construction—Ambiguity—Equality op Shares.
    Where there is an ambiguity in a will as to the shares devised, the construction should favor an equal distribution.
    2. Same — Disinherison.
    Heirs at law are not to be disinherited by conjecture, but only by express words or by necessary implication.
    3. Same — Intestate Property — Disinherison.
    Where a testator is held to be intestate as to a portion of his property, mere negative words in his will will not suffice to disinherit heirs, but there must be an actual disposition of the estate to some other person. ,
    4. Same — Real Estate — Disposition—Heirs Excluded.
    A paragraph of a will reading “(4) The following number of acres of land I have given my children by deeds already free as a part of their share. John twenty-three 23 Conrad twenty acres 20 Anna thirty acres 30 all I intended to give her by this instrument Barbara twenty acres 20,” makes no disposition of testator’s real estate, and cannot be construed to exclude Anna from participation therein; and there being no other clause disposing of real estate, testator died intestate as to that portion of his property.

      5. Same — Intestate Property — Disposition.
    Real estate not devised by testator’s will passes, under the statute of descent and distribution, to all of testator’s living children, and the children of any deceased child, share and share alike.
    Appeal from Saginaw; Gage (William G.), J.
    Submitted October 15, 1908.
    (Docket No. 73.)
    Decided November 30, 1908.
    Bill by Barbara M. Southgate and John G. Zimmermann against Anna Karp and others to construe the last will and testament of John Zimmermann, deceased. From the decree rendered, defendants appeal.
    Reversed, and decree entered for defendant Karp.

      Snow & Snow, for complainants.

      William E. Crane, for defendants.
   McAlvay, J.

For the purpose of obtaining a construction of the will of John Zimmermann, deceased, his executrix and executor, being two of his children, filed their petition in the circuit court for Saginaw county. Issue was joined upon the answer of Anna Karp, a daughter, and Rose Zimmermann, guardian of children of a deceased son of testator; they being all of the defendants named in the petition.

Those portions of the will necessary to the understanding of the case are as follows:

“In the name of God, Amen; I, John Zimmermann, a resident of the township of Saginaw, county of Saginaw and State of Michigan, being of a sound and disposing mind, do make, publish and declare this instrument as and for my last will and testament, hereby revoking any and every will by me heretofore made.
“ (1) My just debts and funeral expenses shall be paid by my executor hereinafter named, to be paid out of the money on hand or out of the personal estate as soon after my decease as shall be found convenient.
"(2) After the payment * * * my just debts and funeral charges, I give and bequeath and devise all my personal estate and moneys wherever situated; and the use of my real estate of which I may die seised for and during the term of her natural life, but I do hereby expressly authorize and empower her in case she may deem it necessary for any reason whatever to mortgage said real estate, any and all my real estate, and use the proceeds thereof the same as I might did when life and I do hereby bequeath and devise the same to accordingly including said power to mortgage said real estate.
“(3) In case my wife, Barbara shall during her term of occupancy of said farm mortgage the same, then I hereby instruct my executor and those who are interested in my real estate after myself and my wife are death, shall pay off all indebtedness before taking possession or have any use therefrom and in case of nonpayment by parties their share then my executor or administrator shall by sale to satisfy said claim either by private or public auction as most practical.
“(4) The following number of acres of land I have given my children by deeds already free as a part of their share, John Q-. Zimmermann twenty-three 23 Conrad Zimmermann twenty acres 20 Anna Karp thirty acres 30 all I intended to give her by this instrument Barbara M. Southgate twenty acres 20.”

Then follows the appointment of executors, signature, etc. It will be observed that the will contains no residuary clause.

In the decree granted in the case the court construed the will as follows:

(1) Paragraphs 1 and 2 of the last will and testament of the said John Zimmermann are hereby construed to give the personal property and money of said deceased absolutely to his widow, Barbara Zimmermann, after all just debts and funeral expenses of said deceased are paid; and it is therefore hereby decided that all debts and the funeral expenses of said deceased shall be paid from the money and personal property of said deceased at the time of his death by him owned or possessed, and the balance left after such payments is hereby decreed to have been the property absolutely of the said Barbara Zimmermann.
" (2) It appearing from the proof in this cause that the real estate mentioned in paragraph 3 of said last will and testament was not mortgaged by said Barbara Zimmermann during her lifetime, the construction of said paragraph is unnecessary; the same being now obsolete.
“ (3) Paragraph 4 of said last will and testament aforesaid, taken together with the other provisions of said will, devises the real estate of said deceased, after the death of said widow, Barbara, to John G. Zimmermann, Conrad Zimmermann, and Barbara M. Southgate, and said Anna Karp is to receive none of the real estate of said deceased by the provisions of said will.”

The defendants nave appealed, claiming that the court did not correctly construe paragraph 4 of the will, and that under the will the daughter, Anna Karp, is entitled to share with the other heirs in the real estate to be distributed. John Zimmermann was a thrifty German farmer, who accumulated during his lifetime a valuable farm and considerable personal property. Evidently he had but a limited knowledge of the English language. His will, a construction of which is sought, was in his handwriting. It was identified as such by a witness, but, as far as the record shows, was not introduced in evidence, and the original is not before us. An inspection of this document might be of assistance to the court. By the third paragraph of his will it appears that the testator understood that as to this real estate he had as yet made no testamentary disposition. Does the fourth paragraph make any testamentary disposition of this property ? It reads:

“(4) The following number of acres of land I have given my children by deeds already free as a part of their share. John G. Zimmermann twenty-three 23 Conrad Zimmermann twenty acres 20 Anna Karp thirty acres 30 all I intended to give her by this instrument Barbara M. Southgate twenty acres 20.”

It is not disputed that he made the distributions contained in the above recital. All these gifts were of valuable land near the city, cut out of the home farm, except the 30 acres given the eldest daughter, Anna Karp, which was not so valuable, and was five miles away. The preponderance of the competent testimony in the case shows that there had been no quarrel or misunderstanding with this daughter or her children. There are no words contained in this fourth paragraph of the will of gift, devise, or bequest. Nor cap these words, “Anna Karp thirty acres 30 all I intended to give her by this instrument,” be said to be precatory words. They do not express a request, wish, or direction. Can it be said that the words quoted are sufficient to and do devise this land to all the heirs, share and share alike, to the exclusion of Anna Karp? If we follow the construction of the decree appealed from, that must be our conclusion. If it may be said that there is here an ambiguity or a doubt as to the meaning of this clause, the law is well established that the construction to be given should favor the heir who by another construction would be deprived of an equal share in the distribution of the property. 30 Am. & Eng. Enc. Law (2d Ed.), p. 668 et seq., and cases cited in notes. From the text we quote:

“Heirs at law are not to be disinherited by conjecture, but only by express words or by necessary implication.” Wilkins v. Allen, 18 How. (U. S.) 385.; Leigh v. Savidge, 14 N. J. Eq. 124.

In Bender v. Dietrick, 7 Watts & S. (Pa.) 287, the court said:

“ It is a maxim which applies here, as well as in England, that an heir at law can only be disinherited by express devise or necessary implication, and that implication has been defined to be such a strong probability that an intention to the contrary cannot be supposed.”

We think the clause under consideration can be considered only as negative words or of the same effect as negative words. Where under a will a [portion of an estate is held to be intestate property, there is abundant authority holding that—

“Mere negative words will not suffice [to disinherit heirs], but there must be an actual disposition of the estate to some other person.” 30 Am. & Eng. Enc. Law (3d Ed.), p. 669, and cases cited. Hurst v. Von De Veld, 158 Mo. 339; Ford v. Whedbee, 31 N. C. 16; Hitchcock v. Hitchcock, 35 Pa. 393.

See, also, Page on Wills, § 467, and cases cited. We think the case at bar is within the rule last above considered, and that by the fourth paragraph of the will no dis- • position was made of any of testator’s estate. We therefore hold that John Zimmermann, as to the estate over on the termination of the life interest reserved to his widow, died intestate. This intestate estate consisted of the homestead of 37 acres which he had not distributed to his children during his lifetime. This real estate, not having been devised by the will, under the statute of descent and distribution, would pass to all of his living children and the children of any deceased child, share and share alike.

The decree of the circuit court as to the construction of the fourth paragraph of the will is reversed, and a decree will be entered in accordance with this opinion, including Anna Karp as entitled to share equally with the other children in the distribution of the real estate in question, and that defendants recover their costs of both courts.

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


author: Grant, C. J.

text:
    KALKASKA COUNTY STATE & SAVINGS BANK v. KALKASKA CANNING CO.
    Corporations — Mortgages—Foreclosure—Deficiency—Indors- / ers — Leave to Sue.
    A petition for leave to sue a director of a corporation at law to enforoe his liability as indorser for a deficiency remaining upon foreclosure of a mortgage of corporate property securing the indorsed and other notes, which alleges that the note was indorsed by all the directors with the understanding and agreement that the proceeds of the foreclosure sale should be applied in satisfaction of the unindorsed notes, sufficiently alleges defendant’s participation in the agreement as against a demurrer.
    Appeal from Kalkaska; Chittenden, J.
    Submitted October 15, 1908.
    (Docket No. 88.)
    Decided November 30, 1908.
    Bill by the Kalkaska County State & Savings Bank against the Kalkaska Canning Company to foreclose a mortgage: On petition for leave to bring an action at law against Darwin D. Lewis. From an order sustaining a demurrer to the petition, petitioner appeals.
    Reversed, and remanded.

      Chcmncey O. Jencks, for petitioner.

      Ernest G. Smith, for defendant Lewis.
    From a decree sustaining a demurrer to the complainant’s petition for leave to bring a suit at law against the defendant, the complainant has appealed. The petition alleges that complainant on July 12, 1906, filed its bill of complaint against the Kalkaska Canning Company to foreclose a mortgage upon its real estate for $4,762.80; that that suit regularly went to a decree and sale of the property thereunder; that the sum found due was $5,-336.50; that at the sale the property was bid in by the complainant for the sum of $3,000; that the sale was confirmed, and a deficiency reported of $2,560.60; that a deed was duly made by the commissioner to complainant by virtue of said sale; that the company was insolvent; that on March 29, 1905, the company was indebted to complainant in the sum of $2,300 above the mortgage indebtedness, which sum had been advanced from time to time to the defendant by the complainant to enable it to carry on its business; that said sum was partly secured by warehouse receipts for the canned products of the company; that said company was also indebted to other parties in the sum of $800, which it could neither pay nor secure, and which was then past due; that the insolvency of said company at said date was known to complainant and the officers and directors of the defendant company; that there were seven directors of the company, including the defendant Lewis, who had constituted the board of directors of said company from its organization; that prior to said 29th day of March, 1905, the directors had indorsed the company’s notes to enable it to borrow money from the petitioner; that said mortgage was given as collateral security to three notes — one for $2,000 and one for $263.80, both otherwise unsecured, and one for $2,500, indorsed by all the directors, including the defendant Lewis; that on the 27th day of July, 1905, complainant was for its own protection compelled, under threats of bankruptcy proceedings against the company, to pay this indebtedness held by other parties, and thereby became the sole creditor of the company, which then owed complainant $7,864; that before paying and assuming this outside indebtedness “it was at all times understood and intended by the directors of said defendant company, as well as by your petitioner, that said directors should and would remain and be personally liable and responsible to your petitioner for any loss or deficiency on said indebtedness which your petitioner might otherwise suffer in said matter to the extent of at least the sum of $2,500, for which amount they had indorsed as aforesaid, and that, with that purpose and intent in view, the said directors, after the execution of the aforesaid mortgage and on the 1st day of July, 1905, indorsed another note of said defendant company in the said amount of $2,500; that said note was duly authorized by the board of directors and left with complainant, with the understanding on the part of said directors and complainant that the note would not be accepted until all of said directors had indorsed it;” that each of said directors had indorsed it, and that said note was received and accepted in lieu or extension of the $2,500 note mentioned in said mortgage; “ that it was then and at all times understood, intended, and agreed, between your petitioner and said directors, that in the event of the necessity arising for the foreclosure of said mortgage the same should be foreclosed for the full amount thereof at such time found to be due thereon, and that said directors would be personally liable on said note for any deficiency found to be due after foreclosure and sale of the mortgaged premises, to the extent of not to exceed said sum of $2,500 and the accrued interest thereon;” that after said foreclosure sale, and the purchase of the land by complainant, complainant and defendant company, without waiting for the period of redemption to expire, disposed of said property at private sale for $2,899.17; that the full amount of the $8,000 bid "by complainant was credited on the mortgage indebtedness; that the sale of the goods covered by the warehouse receipts was by complainant and the officers of said company jointly; that the amount received therefor was insufficient to pay the unsecured indebtedness of the company, and that the deficiency was charged to profit and loss by your petitioner; that the complainant and the defendant company by agreement closed out the assets of said company and applied the proceeds in payment of the aforesaid indebtedness, and that there remained unpaid on the aforesaid note of $2,500 the sum of $2,000 and the accrued interest; that complainant then called upon the directors as indorsers to pay the note; that six of said directors each paid his proportionate share thereof, amounting in all to $1,714.29; that defendant Lewis refused to pay; that thereupon complainant, without leave of the chancery court, brought suit against defendant Lewis to recover his proportionate share; that said suit was dismissed, on motion of the defendant, because complainant had not obtained leave from the chancery court to bring suit. Thereupon the complainant filed this petition to the court in chancery, asking leave to bring suit against defendant Lewis, and that an order be made and entered nunc pro tunc as of a time prior to the commencement of the suit at law. This petition was accompanied by the affidavits of several of the directors of the company asserting the truth of the statements made therein. To this petition the defendant demurred on the ground that it appears upon the face of the bill that the note of $2,500 is fully paid and discharged.
   Grant, C. J.

(after stating the facts). Defendant contends that the $8,000 realized upon the foreclosure sale should be applied in general reduction of the debt decreed in the mortgage decree, and not be applied in full satisfaction of the payment of the two unindorsed notes. He insists that there is no allegation in the petition of any special agreement on the part of defendant Lewis to waive his right to participate in the benefits of the mortgage. Counsel for each party have argued in their briefs very fully the doctrine of the application of payments. In the view we take of the case, that question is not now before us.

Counsel for defendant admits that, if the petition alleges that defendant Lewis participated in such an agreement, “ there would have been no grounds of demurrer to it.” The petition fully and specifically alleges that this note was indorsed by all the directors, with the understanding, intention, and agreement that the proceeds of the foreclosure sale should be applied as they were applied, and that the directors should be held upon the note which they indorsed for the deficiency. This allegation includes the defendant. Sis of the directors so construed their understanding and agreement, and have paid.- It would be too technical a rule of pleading to say that the pleading should select the defendant, and allege a specific understanding, intention, and agreement upon his part, when the allegation includes him in the statement as to all. The allegation was sufficient to require an answer and proofs, if the defendant desired. We must not be understood as concurring in the correctness of the order of the court in dismissing the suit at law because leave of the court of chancery had not been obtained. The indorsers were not made parties to the bill of complaint, and it is not claimed that they were necessary parties. They were liable simply as indorsers upon one of the three notes secured by the mortgage. It is not clear that leave of the chancery court was necessary. Complainant, however, rather than appeal from the judgment of the law court, wisely chose to acquiesce in the position taken by defendant Lewis and the finding of the court therein, and filed its petition for leave.

The decree is reversed, with the costs of both courts, and the record remanded for further proceedings.

Blair, Hooker, Moore, and McAlvay, JJ., concurred.


text:
    HOOCK v. SLOMAN.
    1. Mortgages — Foreclosure — Sale — Notice — Publication — Character of Newspaper.
    Publication of a notice of foreclosure sale in a weekly newspaper of legal and business information, which has been published for many years in the city in which the sale is held, and which is a medium for the publication of legal advertisements, is sufficient against the objection that it should have been published in a daily newspaper of general information, the statute making no such requirement.
    2. Same — Sale —- Confirmation — Objections — Inadequacy of Price.
    Objections to the confirmation of a foreclosure sale on the ground of inadequacy of price are not sustained where defendant makes no offer to increase the bid if a resale is ordered, and complainant offers to accept the amount due with interest and costs.
    Appeal from Wayne; Brooke, J.
    Submitted October 15, 1908.
    (Docket No. 74.)
    Decided November 30, 1908.
    Bill by Henry Hoock against Adolph Sloman and Lottie T. Sloman for the foreclosure of a mortgage: On objections of defendants to the confirmation of sale. From an order overruling the objections, defendants appeal.
    Affirmed.

      Edward 8. Grece, for complainant.

      Maybury, Lucking, Emmons & Helfman, for defendants.
   Grant, C. J.

After the decision of this court in the above-entitled cause (145 Mich. 19) affirming the decree, except as to the taxes and interest thereon which had been paid since the filing of the bill, the case was remanded, further proofs taken, decree entered arid a sale made by the commissioner, and the report thereof to the court confirmed. From the order of confirmation defendants have appealed.

They allege four reasons for setting aside the order of confirmation:

(1) That the sale was unfair.

(2) That it was made in undue haste.

(3) That the notice was not published in a newspaper authorized by law.

(4) That the mortgaged premises are worth more than the sum for which they were sold.

We find nothing in the record to indicate that the sale was unfair, or that any undue haste was exercised therein. The defendants had a representative at the sale, and he made no protest against the manner in which it was conducted.

The law journal in which notice of sale was published is “a weekly newspaper of legal and business information.” It has been published for many years in the city of Detroit, and is a medium for the publication of legal advertisements. Counsel for the defendants claim that the notice should have been published “in a daily newspaper of general circulation.” The statute has no such requirement. ' A publication in a weekly newspaper is as valid as in a daily one.

As to the fourth reason, it is sufficient to say that the defendants’ petition makes no offer to increase the bid if a resale is ordered. Leonard v. Taylor, 12 Mich. 398; Farmers’ Bank of Grass Lake v. Quick, 71 Mich. 534. See, also, Nugent v. Nugent, 54 Mich. 557; Page v. Kress, 80 Mich. 85. Aside from this, however, we do not think the affidavits filed in opposition to the confirmation make a case of gross inadequacy of price. This claim is further answered by the offer on the part of the complainant to accept the amount due, with interest and costs.

Decree affirmed, with costs..

Blair, Hooker, Moore, and McAlvay, JJ., concurred.


author: Moore, J.

text:
    CITIZENS’ SAVINGS BANK v. GLOBE BRASS WORKS.
    1. Corporations — Promissory Notes — Action—Denial of Execution-Ultra Vires.
    Where a corporation sued on a promissory note fails to deny its execution under oath, as provided by Cir. Ct. Rule No. 8, it cannot claim that the execution of the note was ultra vires, or that it was not specially authorized.
    2. Same — Accommodation Maker — Corporate Liability.
    A corporation cannot deny its liability on a promissory note made by it, on the ground that it is merely an accommodation maker, where the debt which the note represents was previously secured by a chattel mortgage on the assets of a business to which the corporation succeeded, which lien was discharged on the acceptance of the note sued upon.
    3. Usury — What Constitutes.
    Where G. purchased a bank’s claim against a defunct corporation at its face value at a time when no one could know how large a portion thereof would be paid in the way of dividends through a receiver, and gave his notes for the amount thereof and for money advanced to him to purchase the assets of the corporation, reassigning the claim and others as collateral security, and payments consisting of receiver’s dividends and cash were made without directions from him as to how they should be applied, a renewal note for the unpaid portion of the debt, given after all the assets, of the corporation had been distributed by the receiver, was not usurious for including an amount for the claim against the corporation in excess of the amount realized from receiver’s dividends.
    Error to Wayne; Rohnert, J.
    Submitted October 15, 1908.
    (Docket No. 89.)
    Decided November 30, 1908.
    Assumpsit by the Citizens’ Savings Bank against the Globe Brass Works, Hyman L. Goldman, and Maurice Goldberger on a promissory note. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Affirmed.

      Robert M. Brownson, for appellants.

      Barbour & Field, for appellee.
   Moore, J.

The following statement of facts is taken, in the main, from the brief of counsel for the appellants:

On March 27, 1906, a petition was filed by the Globe Brass Company, a corporation, for its voluntary dissolution, under the provisions of chapter 300, 3 Comp. Laws. On July 26, 1906, a decree was entered dissolving the company, and appointing a statutory receiver. Among the claims filed against this corporation was one of the Citizens’ Savings Bank for $8,029.23. On August 31, 1906, Maurice Goldberger acquired by purchase, for the sum of $20,000, from the receiver of the company, all of its property and assets of every nature, including its accounts receivable. In order to pay the receiver the purchase price for this property, it was necessary for Mr. Goldberger to borrow a portion of this sum, and he accordingly secured a loan of $15,000 from the Citizens’ Savings Bank. The transaction with the plaintiff was as follows: He gave the Citizens’ Savings Bank his note for $8,029.23, which amount represented the full amount of the claim of the bank against the receiver of the Globe Brass Company. The bank then advanced him $15,000 cash, taking his three promissory notes for $5,000 each, payable in two, three, and six months, respectively, secured by chattel mortgage on all of the property purchased from the receiver. In addition he gave the bank a bond for $4,000 for the purpose of guaranteeing to the plaintiff the difference between the face of its claim- against the defunct Globe Brass Company and any amounts that might be collected from the receiver of the Globe Brass Company by way of dividends on that claim. He also assigned to the bank, as collateral security for his loan of $15,000, this same claim against the Globe Brass Company which he had purchased from the plaintiff, amounting to $8,029.23, and also a claim of the Fort Wayne Smelting & Refining Company amounting to $3,800. This transaction between defendant Mr. Goldberger and the plaintiff was entered upon plaintiff’s books by charging his account with the following items: August 31, note $5,000, due October 31,1906; August 31, note $5,000, due November 30, 1906; August 31, note $5,000, due February 28, 1907; August 16, note $8,029.23, due on demand. Shortly after this Mr. Goldman purchased an interest in the property acquired by Mr. Goldberger, and on October 31, 1906, he indorsed three notes of Mr. Goldberger held by the plaintiff. On October 31, 1906, when the first note for $5,000 came due, $2,500 was paid plaintiff in cash, and a renewal note for $2,500 given by Mr. Goldberger. On November 80,1906, when the second note for $5,000 came due, $1,000 was paid plaintiff in cash, and a renewal note for $4,000, due March 30, 1907, was given by Mr. Goldberger.

The plaintiff collected from the receiver of the Globe Brass Company a dividend amounting to $4,924.49 on the claim of $8,029.23, and also collected a dividend amounting to $2,552.44 on the claim of $3,800 filed by the Fort Wayne Smelting & Refining Works against the old Globe Brass Company. Both of these amounts were credited to Mr. Goldberger’s account on the plaintiff’s books, together with three other items of $100.92, $210, and $25, collections made by the bank’s attorneys on claims due to the Globe Brass Company at the time of the commencement of the dissolution proceedings, and which were in-eluded in the assets purchased by Mr. Goldberger, and by him pledged to the bank as security for his loan of $15,000. By giving Mr. Goldberger credit for these amounts, ‘and charging him with interest on his loan, the books of the plaintiff show that on December 22, 1906, Mr. Goldberger owed the plaintiff $12,007.04. On or about the 18th of December, 1906, the defendant corporation, the present Globe Brass Works, was organized, and filed articles of association with the secretary of State and in the Wayne county clerk’s office. Its authorized capital stock is $70,000, divided into 7,000 shares of the par value of $10 each. The purpose for which the corporation was organized is the ‘ manufacture of brass goods. ” All of the property, of every kind and nature, purchased by Mr. Goldberger from the receiver of the defunct Globe Brass Company was transferred and conveyed by bill of sale to the new corporation, the Globe Brass Works, in consideration of, and payment for, full-paid and nonassessable shares of capital stock issued to the following persons: Maurice Goldberger, 2,000 shares; Hyman L. Goldman, 2,000 shares; John A. Matthews, 1,500 shares; William E. Graham, 500 shares. All of the above-named persons were elected directors of the corporation, and officers were chosen. On December 22, 1906, under the authority and direction of the board of directors of the Citizens’ Savings Bank, the corporate note of the newly organized Globe Brass Works, signed by Mr. Goldberger as president, and Mr. Goldman as treasurer, for $12,000, payable two months after date, was substituted for the individual notes of Maurice Goldberger, and his notes were returned to him. The chattel mortgage executed by him was released and discharged. When this note for $12,000 became due, on February 25, 1907, sundry indorsements of payment amounting to $600 had been made upon it, and a new note for $11,400 was given by the defendant Globe Brass Works in renewal. Upon the maturity of this $11,400 note on May 12, 1907, sundry payments, amounting to $946.29, had been made upon it, and a new note payable three months after date for $10,600, signed by the Globe Brass Works, by H. L. Goldman, treasurer, and Mr. Goldberger, president, was given in renewal. Plaintiff brought suit in assumpsit on all the common counts against defendant Globe Brass Works as maker, and defendants Mr. Goldman and Mr. Goldberger as indorsers, of this note, claiming a balance unpaid of $8,755.22.

It was claimed by the defendant the Globe Brass Works:

First. That the note sued upon is a renewal of a portion of a certain note for $12,000, dated December 22, 1906, signed by said defendant the Globe Brass Works, and payable to said plaintiff two months after the date thereof, and which said note was given to said plaintiff for the purpose of guaranteeing the payment to said plaintiff of a certain balance then due on three certain promissory notes for $5,000 each, dated August 31, 1906 (secured by a chattel mortgage), executed by said Maurice Goldberger and payable to said plaintiff in two, three, and six months, respectively, from the date thereof.

Second. That the said defendant the Globe Brass Works signed said note for $12,000, dated December 22, 1906, and each of the renewals thereof, including said note sued upon, as an accommodation maker merely, and upon no other consideration whatsoever.

Third. That the signing of said note for $12,000, dated December 22, 1906, and each of the renewals thereof by the said defendant the said Globe Brass Works was an ultra vires act upon its part, and that by reason thereof said note, and each of said renewals thereof, was and is void.

Fourth. That for a large portion of said note sued upon herein, for at least the sum of $3,104.74, there was an entire want of consideration paid, advanced, or given to any or either of said defendants herein.

Fifth. That said note sued upon is usurious, and that, in addition to the actual money originally advanced to the said Maurice Goldberger, said plaintiff now seeks to recover a large amount, to wit, at least the sum of $3,104.74 by way of a bonus for making said loan.

The trial court directed the jury to return a verdict in the full amount of plaintiff’s claim.

In addition to the above statement of facts, it should be stated that the chattel mortgage given to the bank by Mr. Goldberger was duly filed in the office of the city clerk. It secured the payment of $15,000, and covered “the entire plant, business and property formerly of the Globe Brass Company of Detroit, Mich.” Said property was described in said mortgage in detail. Accompanying the declaration was a copy of the note sued upon. While the defendants pleaded the general issue, and gave notice of the defenses before mentioned, none of them denied under oath the execution of the note upon which suit was brought.

Counsel for the appellants says the question presented in this case is a question as to how far the authority to execute a note by a corporation, in payment of the debt of one of its stockholders, is sustained by the corporate powers which the law of this State has vested in corporations. He argues that what was done was ultra vires. We quote from the brief:

“It is conceded that the note of December 22, 1906, for $12,000, was given by the Globe Brass Works for the individual obligation of Maurice Goldberger. It is therefore presumptively ultra vires, and in order to support it, it would be necessary to overcome the presumption against authority by express affirmative showing. * * * Plaintiff made no attempt to ‘ overcome the presumption against authority’ by affirmative showing of special authority to execute the note of December 22, 1906, or either of its renewals. The defendants’ proof, however, showed conclusively that the. execution of none of these corporate notes was specially authorized.” •

There are two answers to this contention: First. There is no denial, under oath, of the execution of the note upon which suit was brought, as required by Cir. Ct. Rule 8. See Dewey v. Railway Co., 91 Mich. 351; Ing lish v. Ayer, 92 Mich. 370, and the cases there cited. Second. The record discloses something more than the taking up of the note of Maurice Goldberger. It shows that the Globe Brass Works succeeded to the business formerly owned by Mr. Goldberger, and took over the assets of that business, and that the plaintiff bank had a valid subsisting lien stated in the chattel mortgage to be for $15,000 on these assets. This mortgage was duly filed. It is true a bill of sale of this property had been made to the Globe Brass Works, but that did not operate to discharge the lien. The property covered by the lien constituted a large proportion of the assets of the new company. The chattel mortgage could be foreclosed if the debt secured thereby was not paid and the assets of the new company wiped out. It was natural that the new company should desire to make some arrangement by which its assets should be relieved of this lien, and that was what was done. The company became the debtor in the place of Mr. Goldberger, and the assets formerly owned by him, which had passed to the new company with a lien of $15,000 on them, of which the stockholders of the new company were bound to take notice when the new company was organized, passed to it free of the lien. It would be a travesty upon justice if the company could retain these assets free from this lien and at the same time repudiate the giving of the note which was the sole consideration for the cancellation of the chattel mortgage. The doctrine of ultra vires cannot be invoked for such a result. See Carson City Sav. Bank v. Elevator Co., 90 Mich. 550; Dewey v. Railway Co., 91 Mich. 351, and the many authorities therein cited.

It is further urged, and we again quote from the brief:

“Even if it should be held that the note of December 22, 1906, and the renewals thereof were not void because they were ultra vires notes, still the court was in error in directing a verdict for $8,755.42, because included in this amount is the sum of $3,104.74, for which there was an entire want of consideration.”

This claim is based upon the fact that the claim of plaintiff against the first Globe Brass Company was $3,104.74 in excess of the dividends which were paid by that company. We are not impressed with this claim of counsel, and certainly not as to defendants the Globe Brass Works and Mr. Goldman. The record shows very conclusively that Mr. Goldberger bought this claim when no one could know how large a part thereof would be paid in the way of dividends through the receiver. He also borrowed $15,000 from the bank, making in all a debt of upwards of $23,000. He gave no directions as to how the payments made should be applied. The indebtedness of $23,000 had been reduced to a little over $12,000 when the defendant became debtor to the bank, and the bank released its chattel mortgage. No one made any claim of usury until this suit was brought. The bank had a right to sell its claim against the old company to Mr. Goldberger, and the latter had the right to buy it. We think it cannot be said that any part of the present debt is tinctured with usury.

Judgment is affirmed.

Grínt, C. J., and Blair, Hooker, and McAlvay, JJ., concurred.


author: Hooker, J.

text:
    WOODRUFF v. SCHULTZ.
    1. Building Contracts — Bonds—Release of Sureties.
    Material alterations in a building agreed upon by the owner and contractor will discharge the surety on a bond given to secure performance of the contract, though the owner and contractor agree that the alterations shall be made without increasing the cost of the building, where it does not appear but that the alterations increase the cost to the contractor, though not to the owner.
    2. Same — Damages Recoverable — Unpaid Portion of Contract Price.
    The owner of a building erected under contract cannot recover of the surety on the contractor’s bond any part of the contract price which has not been paid to the contractor, notwithstanding laborers and materialmen have claims against the contractor for a similar amount, it not appearing that the owner is under any obligation to pay them.
    Error to Wayne; Brooke, J.
    Submitted October 15, 1908.
    (Docket No. 76.)
    Decided November 30, 1908.
    Debt by Elizabeth Woodruff against George W. French and Dunning Butler, copartners as French & Butler, principals, and Albert W. Schultz, surety, on a bond for the performance of a building contract. There was judgment for plaintiff, and defendant Schultz brings error.
    Reversed.

      Barnes & Stowers, for appellant.

      Henry G-. Nicol, for appellee.
   Hooker, J.

Defendants French and Butler were principals, and defendant Schultz their surety, on a bond given to the plaintiff to secure the faithful performance of a building contract, whereby French and Butler agreed to erect a building for the plaintiff according to certain plans and specifications. This action was brought upon the bond, and the trial resulted in a verdict and judgment for the plaintiff, and the defendant Schultz has appealed.

The testimony shows that during the time that French and Butler were at work on the house several agreements were made between them and the plaintiff for changes in the house. One was that it should be made larger by an extension of one of its dimensions 5 feet 8 inches. Electric wiring, said to have cost $60, was added, and two partitions not provided for by the contract were put in, under agreement that they should be substituted for other requirements, which were to be waived. According to the plaintiff’s contention, these changes, with the exception of the one first mentioned, were not to increase the cost of the building, being fully paid for by the items agreed to be omitted. The extension of the building was said to be balanced by some omissions and an additional sum of $50 to be paid by plaintiff, and plaintiff contends that these were not material changes, and, if they should be held to be such, it would only have the effect of reducing the amount of the surety’s liability, and apparently the learned circuit judge was of that opinion, for he so charged the jury, in substance. There was proof in the case tending to show that these changes increased the expense to the contractors, and a well-defined and sharply contested issue of fact arose in that particular.

Who can say that the change did not affect the surety injuriously ? Some of the testimony would indicate that it did, because, while it did not increase the cost of the building to the plaintiff, it may have done so to French and Butler, and perhaps prevented their completion of the job for fear of an impending loss, which has often been recognized as a sufficient cause for the release of sureties. It is a settled rule that an obligee in a bond will release the surety by any act that tends to increase his liabilities, unless done with the assent of such surety. Illustrative of this is the familiar instance of an extension of time for payment made upon a sufficient consideration. American Iron & Steel Manfg. Co. v. Beall, 4 Am. & Eng. Ann. Cas. 884, and note (101 Md. 423); People, for use of C. H. Little Co., v. Grant, 138 Mich. 60, and cases cited; Smith v. Shelden, 35 Mich. 42, 24 Am. Rep. 529, and note. Or an alteration in the terms of a lease. Stern v. Sawyer, 6 Am. & Eng. Ann. Cas. 356, and note (78 Vt. 5).

In the present case by subsequent agreements for changes the contract for the full and complete performance of which Schultz became surety, has been altered, and French and Butler had no right thereafter to perform it, except as modified. It was not the case of an agreement for mere additions, which might be treated as a new, separate, and distinct contract, leaving the original contract undisturbed, but one where some of the provisions of that contract were sought to be abrogated, and something else, that the surety never consented to, substituted. To permit this, and to hold the surety liable, upon the ground that there was to be no increased expense, is to make a.new contract for him. For a discussion of such a case, see Backus v. Archer, 109 Mich. 666.

In Grasser & Brand Brewing Co. v. Rogers, 112 Mich. 112, one became surety upon a contract to purchase beer at $5 a barrel in car lots. The surety was held to be discharged by a purchase in smaller lots; Mr. Justice Moore saying, with the approval of his associates:

_. “ He had a right to choose the terms of the agreement into which he entered. His agreement was in relation to sales which were made in and to be paid for in car-load lots, and in no other quantities. A surety can insist that he will not be bound except upon his own terms, and his obligation cannot fairly be extended beyond the scope of his written agreement, as, under the statute of frauds, his agreement must be in writing.” '

See, also, Board of Com’rs of Morgan Co. v. Branham, 57 Fed. 179. We deem it unnecessary to discuss authorities from New York, cited in behalf of the plaintiff, further than to say that they admit the above rule, but turn upon questions of construction of the contracts; and the same may be said of Nebraska cases referred to. We think this case plainly distinguishable from some that have arisen upon statutory bonds given to protect laborers and materialmen, where sureties have been held not to have been released by departures from the contracts; the laborers and materialmen not being responsible therefor.

The foregoing is the principal question in the case. Error was assigned upon some statements of fact, which counsel assert to have been questions for the. jury; but we need not discuss it, as all know that disputed questions of fact are for the jury, and it would be of little interest or importance to ascertain the state of the evidence in this case, as we must reverse it on other grounds.

Again, defendant’s counsel say that the surety was not liable for any sum that plaintiff was not obliged to pay upon the building contract. They claim that there was a sum of $614 of the contract price still in her hands. It appears that an equal sum was due and owing to material-men and subcontractors on the job, and as we understand it the proposition is, that, no liens having been filed, and there being no legal liability on plaintiff’s part to pay these men, she cannot recover the sum from the surety; and, if this is all there is to the proposition, we think the claim of defendant’s counsel is correct. In other words, she cannot recover from this surety for a sum that she has yet in her hands, and which she is under no legal obligation to pay, if such is the situation. Counsel appear to be in disagreement about the facts, and we are unable to say from the record referred to that these are not legal outstanding obligations against her, growing out of transactions following French and Butler’s abandonment of the job, if they did so.

We are constrained to reverse the judgment and direct a new trial.

Grant, C. J., and Blair, Moore, and McAlvat, JJ., concurred.


text:
    DEITSCH v. TRANS ST. MARY’S TRACTION CO.
    1. Street Railroads — Operation—Negligence—Collision with Yehiole.
    A street-railway company has no exclusive right to the use of that portion of the street occupied by its track, but persons using the street have a right to drive upon or across it whenever necessary, provided they exercise reasonable care and caution in so doing, and they also have a right to rely to some extent upon the watchfulness and prudence of the motorman in charge of a car and upon his ability to stop within a reasonable distance.
    2. Same — Contributory Negligence — Crossing Tracks.
    Street railways have ordinarily the right of way over other vehicles, and the driver of a vehicle owes the duty of looking before going onto the tracks; but when the circumstances are such that he may reasonably assume, and honestly think, that he has time to cross, it is not negligence for him to attempt to do so, even if a car be in sight and coming.
    Error to Chippewa; Steere, J.
    Submitted October 15, 1908.
    (Docket No. 72.)
    Decided November 30, 1908.
    Case by Frank Deitsch against the Trans St. Mary’s Traction Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Horace M. Oren (John H. More, of counsel), for appellant.

      George B. Holden, for appellee.
   Moore, J.

The plaintiff, a young man, was in the employ of a circus company that exhibited at Sault Ste. Marie. His duty was to drive a six-horse team which drew a circus wagon or van. The horses were hitched to the van in ordinary fashion, in teams two abreast. The distance from .the heads of the lead horses to the rear of the van was 54 feet. While attempting to cross the track of defendant company with the above-described outfit, Mr. Deitsch was struck by a street car owned by defendant, and severely injured. For these injuries he sued, the defendant, and recovered a verdict. The accident happened at about 10 o’clock at night. The case is brought here by writ of error.

The plaintiff gave testimony tending to show that when he started to cross the track the approaching car was so far away that he supposed, and had a right to suppose, he had ample time to cross the track; that the car was in fact run at a speed in excess of 20 miles an hour. It was the claim of the defendant that the car was run slowly. In addition to the testimony offered, the jury also saw the premises where the collision occurred. Upon the cross-examination of the plaintiff the following occurred:

“Q. Now, Mr. Deitsch, when you testified here on the last case, you were asked this question: Assuming that you were approaching the street crossing with this rig, a six-horse team, and so on, and you saw the car approaching, coming at an apparent rate of about six miles per hour, how far would you, in your judgment, consider that the car should be away to justify you in starting to cross ?
“A. Well, that is something I could not tell, unless it was coming right there at the crossing.
“Q. You testified in the previous case, that you would not consider it reasonably safe to make the crossing under those circumstances if the car was less than 500 feet away, did you not ?
“A. Well, I could not figure it out or—
“Q. Weil, didn’t you so testify ?
“A. Yes, but—
“Q. Answer my question, didn’t you so testify ?
“A. I testified; yes, but—
Q. And that was your deliberate judgment at that time, was it not ?
“A. Well, I could not tell unless I was at the crossing.
“Q. You did so testify, didn’t you ?
“A. Well, I said I could tell if I was right there.
tcQ. No; I say you testified just as I have said here ?
'“A. Yes; but I had no idea of the distance or anything. I could not figure it. I didn’t know.
“Q. When you were questioned on the previous trial you said that when you would come to a crossing that way, and saw a car coming at an apparent rate of six miles per hour, and only about an ordinary block away, that you would not consider it reasonably safe to attempt a crossing, didn’t you ?
“A. I have no idea—
“Q. Did you so testify ?
“A. I so testified—
“Q. How?
“A. Yes, but I don’t know how big a block was or anything.
“Q. You don’t know how long an ordinary city block was ?
“A. No, sir.
“Q. And yet you have been in all the leading cities of the United States and Canada driving on the streets ?
“A. Yes, sir.
“Q. And you know that the distance from that second light to where your team was when you made that crossing was about the length of an ordinary city block, didn’t you ?
“A. I didn’t know just how far it was. I know there was two lights there.”

On the direct examination he had testified that when he started to cross the track the car was beyond the second arc street light. Other witnesses testified to the same thing. A plat made from actual measurement shows that the second arc light was 460 feet from the place of collision.

Many assignments of error are made, out we do not think it necessary to discuss them all.

Counsel asked the court to charge the jury:

‘£ Except in case of necessity, such as did not exist in the case at bar, plaintiff would have no right to turn upon the track if it was reasonable to suppose that his occupancy of the track would compel the car, in order to avoid collision or injury, to reduce its speed below that at which it had the right to run. The right of way on its tracks belongs primarily to the street-car company in this sense, viz., that while vehicles have also the right to drive on and across the portion of the roadway occupied by street-railway tracks, when and where the tracks are not in actual occupancy of street cars, yet vehicles are required to turn out and yield the right of way in the face of approaching cars, and are also not to turn upon street-railway tracks in the face of approaching cars so as to impede their lawful movement and progress.”

It was claimed that the defendant had the legal right to run its cars at this location in the city at a speed of 10 miles an hour, and that, in view of the plaintiff’s cross-examination, it was error to refuse the above request. The trial judge upon that feature of the case charged the jury as follows:

“ In other words, to make it more concise, it is the law that in all cases of negligence, before the plaintiff can recover he must show to the satisfaction of the jury that there was negligence on the part of the defendant which caused the accident, and also that he was free from negligence on his part, and did not by his carelessness contribute to the injury.
“ It is charged in this case, as a ground of negligence, that this car was being run at an unlawful rate of speed; that it was recklessly and unskillfully managed. In reference to this allegation that defendant was driving the car at an unlawful and excessive rate of speed, you are instructed that it appears, and is conceded in this case, that, under an ordinance of this city granting a franchise to the defendant street-car company, it was permitted to run its cars along the street on which this collision occurred at a speed of not to exceed 10 miles an hour. Therefore it would not be negligent for the company to run its cars at 10 miles an hour or at any speed less than that. So far as the respective duties of the parties in this case are concerned, you are instructed that a street-railway company has no exclusive right to the use of that portion of the street occupied by its track, but a person using the street has a right to drive upon it or across it whenever necessary, provided that person exercises reasonable care and caution in so doing. And people have a right to rely to some extent upon the watchfulness and the prudence of the motorman in charge of the car, and upon his ability to stop his car within a reasonable distance. It would be the duty of the motorman in this case, who represented the company, and who was in charge of the car when running it, to be cautious and vigilant, not to run his car at an unlawful or dangerous rate of speed, to watch out and give reasonable and timely warning of the approach of his car to travelers upon the street, or who were about to go upon the track ahead of his car, and to check or stop his car when it seemed to be absolutely necessary to do so to avoid obstructions on the track, or collisions which might, and evidently would, result if he did not do so. And it is the duty of the motorman, if he observed an obstruction on the track ahead of him, to prevent a collision, if it is possible to do so, by stopping his car within the range of his ability. He has no right to recklessly continue on, but is bound to use the same care in preventing a collision as the driver of a wagon or any other vehicle along the street would be expected to use. It would not be the duty of the motorman in this case to slacken the speed of his car if the car was not exceeding 10 miles an hour, unless the track ahead of him was occupied, or reasonably likely to be occupied, by some obstruction, such as a pedestrian crossing, or a vehicle, that in the ordinary course would not be out of the way, and would be placed in danger of being hit, unless the car was stopped or the speed slackened. • Where a vehicle comes upon a track unexpectedly, and obstructs a track which was previously clear, the speed at which the car was going at the time at which the obstruction came within range where a collision would be apprehended would be the speed to be considered by the jury in determining whether the car was going at an unlawful rate of speed, and in this case upon that question the issue would be whether or not, at the moment the front team of horses drawing this circus van turned across the track, the car was going at a rate of speed exceeding 10 miles an hour. If it was not at that moment going at a rate of speed in excess of 10 miles an hour, the jury cannot find negligence in this case against the defendant upon the question of speed.
“Now, on the other hand, the driver of a vehicle upon a public street is bound to take notice of existing conditions, and govern himself accordingly. The plaintiff in this case was the driver of a heavy vehicle. When he contemplated crossing the track on which he saw a car coming, he was bound to know that cars on railway tracks run down the rails on the track, and that it is impossible for the motorman to turn out or to turn aside to avoid a collision, as the driver of an ordinary vehicle can do. It was easy for the plaintiff to turn aside and to avoid a collision by changing the course of his team, and it was impossible for the motorman to avoid a collision by turning out. The motorman’s only means of avoiding a collision is to stop the car, and the plaintiff is bound to know that such was the case, and to know that, from the weight of the car, it could not be stopped instantly. It is therefore, as a matter of law, negligence which precludes recovery for the driver of a vehicle to suddenly turn directly in front of an approaching car and to attempt to cross the track, unless the car was so far away he could safely do so, as it appears to him, relying on the car not reaching him, if it is not running at an unlawful rate of speed, because he has a right to assume, at such a time, that the car was not running in excess of the rate of speed fixed by law. So long as this plaintiff with his team was traveling down the street alongside of the track, parallel to it, with no indication of an intention upon his part to turn across, the motorman would have no reason to apprehend a collision, or to exercise special care, or to check his car, and he would not be required, as a matter of law, to do so.
‘ ‘ Street railways have ordinarily the right of way over other vehicles as they approach each other, and the driver of a vehicle owes the duty of looking before going onto a track. But when the circumstances are such that he may reasonably assume, and honestly think, that he has time to cross, it is not negligence for him to attempt to do so; even if the car be in sight and coming. But if the approaching car is so near, or coming at such a rate of speed that, to a reasonably cautious and prudent man, it would appear unsafe and uncertain, under the circumstances as they presented themselves at the time, to attempt to cross, then the party doing so takes his chances, runs his own risk, and if he is hurt, his own carelessness and contributory negligence prevent a recovery in court for any injury he may sustain. Now in this case it is undisputed that the plaintiff was driving a six-horse team, hauling a heavily loaded wagon. It is undisputed that the car was approaching him, and that he saw it. Under those circumstances it was his duty to exercise the especial care and caution to avoid a collision which such circumstances demand of a reasonably cautious and prudent man, and he had no right to take any chances, or to gamble upon the possibility of getting across; and, if he did so, he cannot afterwards appeal to the courts for compensation for losing on the gamble. He can only recover in this case by showing that the car was so far away, at the time that he turned upon the crossing, that he could reasonably assume that he might cross before the car reached him. if the car was running at a lawful rate of speed, and that he did have a right to assume. If the car was running at an unlawful rate of speed, he could not even then recover, unless he exercised reasonable care and caution. Even though the car was not running at an unlawful rate of speed, if he suddenly turned upon the track when the car was too near him for an accident to be avoided, and if he turned upon the track when the car was so close that the motorman had no reasonable warning and opportunity to get his car under control, and stopped before the accident, then the plaintiff cannot recover. In order to recover in this case he must satisfy you that the car Was running at an unlawful rate of speed; that it was not under control; that it was so very far away that he could have safely passed if the speed had not been excessive, such as an ordinarily prudent man under like circumstances would exercise. In other words, briefly stated again, he must satisfy you that the accident was wholly due to the unlawful, negligent, and reckless manner in which the car- was run, and not to any contributory negligence on his part.”

In Ryan v. Railway Co., 123 Mich. 597 the court said:

“We have said that street railways have ordinarily the right of way over vehicles, and that the driver owes the duty of looking before going upon the track. But both have rights upon all parts of the highway, and a driver is not obliged to wait until all cars in sight pass before attempting to cross. If he were, his progress would be slow. There is testimony in the case that the whole car could have been seen from the place where the accident occurred when it reached the top of the hill, which was two blocks away. The plaintiff stated that he looked to the point of the hill, and saw no car, and thought he could get across. He estimated the distance at 75 or 80 feet. Others make it more.”

In a concurring opinion written by Mr. Justice Grant, it is said:

“There was testimony that the car was running down this hill at a speed of 30 miles an hour. I do not think the evidence conclusively shows that plaintiff was from 15 to 20 feet only from the car when he attempted to cross. If this were so, he would clearly have been guilty of contributory negligence. He had got nearly across the track when the hind wheel of his buggy was struck. There was testimony that the car was more than 100 feet away when plaintiff started to cross. I think it was for the jury to determine the speed of the car, its distance from plaintiff when he turned to cross, and the negligence of defendant and contributory negligence of plaintiff.”

In Chauvin v. Railway, 135 Mich. 85, Chief Justice Hooker, speaking for the court, said:

“ The use of cars upon highways does not deprive persons of the right of walking and driving. They are constructed and operated upon the assumption that they will be driven upon and over, and that mutual care will be taken to avoid collisions. Necessarily the driving public must exercise some judgment in relation to the opportunity to cross tracks, especially in places where cars are always in sight; and, as we have intimated in another case, if one were to be always chargeable with negligence for driving upon a track when an approaching car was in sight, there are places where he could never cross the track without being negligent. When, in the exercise of common prudence, he may reasonably think there is time to cross safely, he is not chargeable with negligence.”

See, also, Moran v. Railway, 124 Mich. 582; Gaffka v. Railway, 143 Mich. 456; La Londe v. Traction Co., 145 Mich. 77.

The case was tried with care. The defendant has no just reason to complain of instructions as to the law of the case.

Judgment is affirmed.

Grant, O. J., and Blair, Hooker, and McAlvay, JJ., concurred.


author: Ostrander, J.

text:
    LUM v. FAIRBANKS.
    1. Appeal and Error — Notice of Appeal — Failure to Serve —Failure.
    Counsel for the appellee can take no advantage of failure of appellant to serve notice of perfecting a chancery appeal where they accepted copies of the record and brief of appellant and expected the case to be heard at the ensuing term.
    2. Same — Chancery Appeal — Register’s Fee — Payment — Necessity.
    Both section 552, 1 Comp. Laws, and Act No. 340, Pub. Acts 1907, are mandatory with respect to the requirement that the register’s fee shall be paid within the time limited to perfect a chancery appeal, and require that in the absence of such payment or waiver on the part of the appellee the appeal shall be dismissed.
    3. Same — Waiver.
    Where appellee had no knowledge until October that a delay of nearly four months in perfecting the appeal had occurred because the register’s fee was not paid, and that it was finally paid, after the lapse of the time for perfecting the appeal, there was no waiver of the point by appellee urging appellant in August and later to expedite the appeal, since appellee was not required to learn of the delay.
    4. Same — Register’s Fee — Time to Pay.
    Under Act No. 340, Pub. Acts 1907, a chancery appeal is not perfected until the register’s fee is paid; and as the time for perfecting an appeal is limited to one year from the filing of the decree, and cannot be extended, an appeal is not taken and perfected if the fee is not paid until after the year has elapsed.
    Bill by Harrison V. Lum against Eveline H. Fairbanks to enjoin an encroachment upon a street. From a decree dismissing the bill, complainant appeals: On motion to dismiss.
    Submitted November 2, 1908.
    (Calendar No. 23,003.)
    Motion granted November 30, 1908.

      jFrost & Farrell, for the motion.

      D. O. French, contra.
   Ostrander, J.

A final decree was entered April 26, 1907, claim of appeal made June 18, 1907, the time extended 90 days from June 22, 1907, bond filed July 8, 1907, case settled April 18, 1908, and the certified transcript filed in the office of the clerk of the circuit court April 21, 1908. The register’s fee was not paid until August 19, 1908, when the case was forwarded to' the clerk of this court. No notice of perfecting the appeal was given to counsel for the appellee. It appears that the record is printed and the case noticed for hearing at the present October term of this court. The records, however, were not received by the clerk of this court until after the first day of the term, for which reason the cause was stricken from the docket, under the rule. Copies of the printed record were delivered to counsel for appellee on August 26, 1908, and on September 19, 1908, appellant’s brief was served. A motion to dismiss the appeal was entered October 12, 1908 — the reasons assigned being (1) that the transcript was not filed with the clerk of the court below immediately upon being certified by the judge; (2) that the statute fee was not paid to the register for nearly four months thereafter; (3) that no notice of perfecting the appeal was served.

The delay of three days in filing the certified case is explained, and counsel for appellee are not in position to take advantage of the failure to serve notice of perfecting the appeal. They accepted copies of the record and of the brief for the appellant, and expected the case to be heard at the present term of this court. It appears, however, that they did not know when the register’s fee was paid or the transcript returned to this court until some time, the date not stated, three or four weeks before October 24th. The statute (1 Comp. Laws, §§ 551, 552) treats an appeal as perfected when the certified case is duly filed with the register of the court. And where an appeal was not perfected within the statute period, and the delay was due to default on the part of the appellant, jurisdiction of the appellate court was denied. Waterman v. Bailey, 111 Mich. 571. See City of Kalamazoo v. Power Co., 122 Mich. 489. And it was held in Bennett v. Hickey, 110 Mich. 628, and in Trombly v. Klersy, 139 Mich. 311, that failure to pay the register’s fee within the time limited by 1 Comp. Laws, § 553, would require that the appeal be dismissed, in the absence of waiver on the ¿art of the appellee.

It is now required that all appeals in chancery cases shall be taken and perfected under the provisions of Act No. 340, Pub. Acts 1907, which went into effect June 38, 1907. By its terms this act limits the time for perfecting an appeal to one year from the filing of the decree, and requires that the register’s fee be paid when the settled case is filed with the register. It has been held that the requirement of this statute relative to payment of the fee is mandatory. Thompson v. McKay, 154 Mich. 228. So that, whether we consider the appeal as taken and perfected under 1 Comp. Laws, § 553, or under the statute of 1907, the appeal must be dismissed, unless it should be said that the right to a dismissal has been waived. There has been no waiver; for, although it appears that counsel for appellee have since August last urged counsel for the appellant to expedite the hearing of the case, they did not know, and we think were not required to learn, that a delay of nearly four months occurred because the register’s fee was not paid, and that it was finally paid after the lapse of the time for perfecting the appeal. We are of opinion that, under the statute of 1907, an appeal is not perfected until the register’s fee is paid, and as the time for perfecting an appeal is limited to one year from the filing of the decree, and cannot be extended, an appeal is not taken and perfected if the fee is not paid until after the year has elapsed.

The motion to dismiss the appeal is granted, with costs.

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


text:
    STABLER v. CLARK.
    1. Appeal and Error — Review — Pleadings — Sufficiency — Amendment.
    On appeal from a decree granting foreclosure of a mortgage, an objection to the consideration of evidence tending to show a payment, on the ground of lack of affirmative averments in the answer, is not sustained, where the answer, fairly interpreted,-raises the issue, the case was tried on the merits, permission was asked to amend the answer, and there is nothing indicating that the court below would have refused permission to amend if defendants’ contention had been sustained.
    2. Evidence — Book Entries — Sele-Serving Declarations — Hearsay.
    On a bill to foreclose a mortgage, the answer claiming payment, entries in a diary kept by defendant wife, reciting a payment claimed to have been made by defendant husband, as to which the wife had no knowledge except as informed by her husband, the entries not being relied upon to refresh recollection, are not admissible.
    3. Appeal and Error — Evidence — Consideration — Chancery Case — Inadmissible Evidence.
    On appeal from a decree granting foreclosure of a mortgage over defendants’ claim of payment, an objection that the court did not give full weight to evidence presented in the form of entries in a diary kept by defendant wife, is untenable, the entries not being admissible.
    4. Same — Review—Question oe Fact — Conolusiveness oe Finding.
    A decree granting foreclosure of a mortgage notwithstanding defendants’ claim of payment, the evidence being in sharp conflict, and the case being one in which the manner of the witnesses is likely to aid the court in arriving at a correct conclusion, is affirmed, the court not being able by any fair analysis of the evidence to reach a conclusion other than the one reached below.
    Appeal from Ingham; Wiest,'J.
    Submitted November 9, 1908.
    (Docket No. 123.)
    Decided November 30, 1908.

      Bill by Charles F. Stabler against Andrew C. Clark and Gertrude Clark for the foreclosure of a mortgage. Defendants filed an answer in the nature of a cross-bill praying for a discharge of said mortgage. From a decree for complainant, defendants appeal.
    Affirmed.

      Charles F. Hammond (Bollin H. Person, of counsel), for complainant.

      L. B. Gardner, for defendants.
   Ostrander, J.

Defendants claimed that on March 5, 1902, they paid $300 on the mortgage debt. Whether they did this is the sole question involved. The trial court was not convinced that the payment was made. It is not claimed on the part of appellants that any improper or incompetent testimony was received. It is claimed that it is apparent from the opinion delivered by the court that certain evidence was not rightly valued. Defendant Andrew C. Clark testified that on March 5, 1902, he paid $300 to the wife of complainant at her house in the absence of complainant. She positively denies that such a payment was made to her then or at any other time. Complainant denies that he ever received the money from defendants or from his wife. Defendant has fairly established the fact that he had more than $300, received from a sale of cattle made on the day named to a man named Horne, and he says it was upon his return from the city with the money that he stopped at the house of the complainant; his wife holding the horse while he went into the house and made the payment. He took no receipt, and did not demand to see the indorsement of the payment upon the note or mortgage. With this sharp and irreconcilable conflict of testimony, defendants produced a book containing various entries made by Mrs. Clark, among which are the following : Under date March 5, 1902, is the entry: “ Sold 9 head of cattle. Went to L. Lovely day,” This in a portion of the volume used as a diary of daily events; each line of the pages being numbered consecutively to correspond with the days of the months. On another page, headed, “Sales Account,” is the entry as of March 5, 1902: “Young cattle,9 head, Horne. Weight 8135. Amount $325.40.” On still another page, under the heading “Cash Paid Out,”is the entry: “March 5, cash paid on mortgage 300.” These entries, having been called to the attention of the witness Andrew C. Clark, were read into the record, the only objection made being ‘ ‘ the formal objection,” and later the book itself was offered and received in evidence without objection. The weight of this evidence is supposed to have been disregarded by the court, the opinion declaring that—

“A diary made by a person must be considered when in court as a self-serving statement of events, and, while it is proper to consider it and give it such weight as it should be given in the determination of questions of fact, yet the court must never lose sight of the fact that it is a self-serving act.”

It is to be noted that the book was not used at the hearing as an aid to the recollection of a witness, nor was it claimed or assumed that it was more trustworthy than the present recollection of witnesses. Neither of the defendants professed that they had not exact, independent memory of the narrated facts. Quite the contrary. Mrs. Clark had indeed no knowledge that the money had been paid by her husband, except that she claims he told her he had paid it, and she on the evening of the day in question made the written narrations in the book; nor is the book one of accounts kept in the usual course of a business. It is the settled law in this State that such evidence under such circumstances will not be received. Weaver v. Bromley, 65 Mich. 212; Collins v. Shaw, 124 Mich. 474. See 1 Wigmore on Evidence, §§ 734-738. Appellants are therefore not in a position to complain that the court considered the evidence aided by such arguments as were presented by counsel. It would benefit no one to review in this opinion the other evidence. Numerous independent facts calculated to affect belief were proven. The case is one of those in which the manner of the witnesses is likely to aid the court in arriving at a correct conclusion. The record and the briefs of counsel have been carefully examined, with the result that we are unable by any fair analysis of the evidence to reach a conclusion other than the one embodied in the decree.

We are not satisfied that the payment was made, and therefore affirm the decree, with costs to complainant.

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


text:
    SPRAGUE v. HOSIE.
    1. Contracts — Offer—Continuing Offer — What Constitutes.
    A letter respecting a sale of corporate stock, in which the writer states that he “ would not sell for less than 154 net at this time,” if it can be said to contain an offer to sell, is not a continuing offer; and even if it were, a refusal would end the negotiations, there being no renewal of the offer.
    2. Statute of Frauds — Goods—Corporate Stock.
    Stock in an incorporated company, the shares of which have been actually issued, are “goods” within the meaning of the statute of frauds (section 9516, 3 Comp. Laws).
    3. Same — Pleading—Declaration—Sufficiency.
    A declaration in an action for breach of a contract to sell corporate stock is good though it alleges no facts to show whether or not the contract was obnoxious to the statute of frauds.
    4. Same — Pleading—Defenses—General Issue.
    In an action for a breach of a contract for the sale of corporate stock, the defense that the contract is unenforceable under the statute of frauds is available under the plea of the general issue, without notice of the special defense.
    5. Pleading — Defenses—General Issue — Scope.
    The scope of the plea of the general issue is as a general rule a denial of every material averment of fact in the declaration.
    Error to Wayne; Rohnert, J.
    Submitted November 13, 1908.
    (Docket No. 27.)
    Decided November 30, 1908.
    Assumpsit by Thomas S. Sprague against James R. Hosie for breach of a contract for the sale of certain bank stock. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Frederic T. Harward, for appellant.

      Stellwagen & MacKay, for appellee.
    The suit is brought to recover damages alleged to have been sustained by the plaintiff by reason of the refusal of defendant to perform his contract to sell plaintiff 20 shares of bank stock at $154 a share. The declaration contains the common counts in assumpsit and a special count in which the said contract and a breach thereof are averred. The plea is the general issue. Defendant offered no testimony. A verdict for defendant was directed by the court, and judgment on the verdict was entered. Plaintiff is a dealer in stocks and bonds. He testified, however, that he desired to purchase this stock for himself, and not for any client. In a letter written by him to defendant of date August 22, 1906, is the following:
    ‘c I have a client who may purchase a limited amount of Michigan Savings Bank stock. * * * If you decide to offer the stock to me, please make the price to hold good until September 1st as my client is hard to find at times and it may take 2 or 3 days to hear from him.”
    In reply defendant of date August 30th wrote:
    “Replying to above, I have only 20 shares Mich. Sav. Bank stock and will sell same for 155 or 3,100.00 net. This is the best price I can make. Have refused an offer of 150; on account of vacations your letter has been neglected till now.”
    Of date November 5, 1906, plaintiff again wrote to defendant, saying:
    * ‘ If you wish to sell your 20 shares of Michigan Savings Bank stock at this time at $149.00 per share net to you, I think I can make sale of the same ” — concluding the letter as follows:
    “If you desire to let me offer the'stock for sale at this price, please make price good for this week, as tomorrow is a holiday and it may take a day or two after that to accomplish anything.”
    The reply, dated November 7th, was:
    “I have an offer’of 150 Jan. 1, 1907. In the meantime I will get a dividend of 4 to 5 per cent. Would not sell for less than 154 net at this time.”
    Plaintiff on November 12th again wrote defendant:

      “Replying to your favor of the 7th inst. regarding 20 shares of Michigan Savings Bank stock, which you offered to sell at 154 net to you, if you will sell 5 shares at 153, I will take it, if I am not supplied when I hear from you. Please advise me at once. I purchased some of this stock at a much less price since writing you and my client is willing to pay 153 for 5 shares to even up the block, if the matter is closed at once. I have no doubt I can get it for less money by looking around, but he told me to make you this offer to close the matter without delay. I do not see how you expect to get 4 to 5 per cent, dividend January 1st, as the bank is only paying 7 per cent, per annum, which would make the accrued dividend about 2.60 per cent, at this date.”
    To this defendant made no reply. The plaintiff testified that on November 17th, by telephone, he advised defendant that he would take 20 shares at $154 a share, and told defendant to send the certificate with draft attached to the savings bank, and that defendant said he would send the stock, but that it might be two or three days before he could do so; that immediately thereafter, on the same day, he sent to defendant a letter confirming the offer made by telephone. This letter was not produced. A motion to strike out the testimony of the oral communication was granted, and plaintiff excepted. Later, on December 7th, plaintiff demanded the stock, saying he was ready to pay for it, but defendant refused to deliver the stock, claiming he had never bargained for its sale. Later, a tender, in the form of a cashier’s check for $3,080, was made to defendant and was refused. On December 7th the market value of the stock was $180 per share, plus a dividend of $3.50 per share. It is claimed on the part of appellant, first, that the letters make a complete and binding contract; second, that bank stock, ownership of which is usually evidenced by certificates, is not goods, wares, or merchandise within the meaning of the statute of frauds; third, that the defense that the contract, if resting in parol, was void under the statute of frauds, was waived because no notice of such defense was given with defendant’s plea.
   Ostrander, J.

(after stating the facts). 1. There was no continuing offer to sell the stock at the price of 1154 a share. Defendant’s letter of November ?th, if it can be said to contain an offer to then sell the stock, was not a continuing offer. Moreover, whether it be treated as a present or a continuing offer to sell, it was refused and was not thereafter renewed. The bargain, if one was made, rests in parol.

2. Whether stock in an incorporated company, the shares of which have been actually issued, is goods, wares, or merchandise, within the meaning of the statute of frauds (3 Comp. Laws, § 9516), is a question which has been answered differently in different jurisdictions. In essentials our statute is a copy of the seventeenth section of the statute of Charles II, and was adopted in this jurisdiction in 1819 from the laws of the State of New York. The English courts, to a period as late as 1839, had not apparently determined conclusively, that such shares were or were not within the statute. Mussell v. Cooke, Pre. Ch. 533; Crull v. Dodson, Sel. Cas. in Ch. 41. Lord Denman in Humble v. Mitchell, 11 Ad. & El. 205, a case decided in 1839, held with the concurrence of his associates that “shares in a joint stock company like this [a bank] are mere choses in action, incapable of delivery, and not within the scope of the seventeenth section. A contract in writing was therefore unnecessary.” It is stated in the opinion that no case had been found directly in point. Humble v. Mitchell has apparently been since followed in England. See 29 Am. & Eng. Enc. Law (2d Ed.) p. 961; 20 Cyc. p. 244; 1 Beach on Modern Law of Contracts, § 558. See, also, note to Weightman v. Caldwell, 4 Wheat. (U. S.) 85-89. In 1838, in Tisdale v. Harris, 20 Pick. (Mass.) 9, the precise converse of the modern English rule was laid down; it being decided that the words “goods” and “merchandise,” are broad enough in meaning to include stocks or shares in incorporated companies. The rule is affirmed in Boardman v. Cutter, 128 Mass. 388. To the same effect are North v. Forest, 15 Conn. 400; Pray v. Mitchell, 60 Me. 430; Spear v. Bach, 82 Wis. 192; Johnson v. Mulvy, 51 N. Y. 634. It must be admitted that at the common law shares of an incorporated company occupied much the same position as promissory notes and other mere choses in action. Indeed, it is held in Massachusetts that a promissory note is within the statute. Baldwin v. Williams, 3 Metc. (Mass.) 365. To the contrary is Vawter v. Griffin, 40 Ind. 593, which approves the rule of Humble v. Mitchell. Such shares have, however, come to be subjects of common barter and sale, are usually evidenced by certificates which, in the absence of statute provisions, operate by assignment and delivery to transfer title to the shares as between the parties. They are in this State by statute subject to levy and sale on execution. In many other respects they are treated as something more than mere choses in action. It was said by this court in Weston v. McDowell, 20 Mich. 353, 357, in considering the meaning to be given the words “goods, wares and merchandise,” as employed in the common counts in assumpsit, that it has always been considered that the phrase as employed in' the statute of frauds embraced animate as well as inanimate property, and that the word “ goods ” may well include oxen. The case is not in point here except as indicating that a broad rather than a narrow meaning should be given to the word “ goods.” That contracts for the sale and delivery of shares of stock are subject to the mischief aimed at by the statute, must be admitted. We are of opinion that reason and the weight of authority favor the conclusion that shares of stock in an incorporated company, the shares having been issued, are goods within the meaning of the statute of frauds. It follows that the parol contract for their sale was invalid.

3. The declaration alleged no facts to show whether the contract sued upon was or was not obnoxious to the statute.' It was nevertheless a good pleading. Dayton v. Williams, 2 Doug. (Mich.) 31; Harris Photographic Supply Co. v. Fisher, 81 Mich. 136; Stearns v. Railway Co., 112 Mich. 651; Kroll v. Diamond Match Co., 106 Mich. 127. See, also, 9 Enc. Pl. & Prac. p. 700; Seaman v. O’Hara, 29 Mich. 66, 67. The language of the statute in question here is:

“No contract for the sale of any goods, wares or merchandise, for the price of fifty dollars or more, shall be valid, unless,” etc.

It is clear that such a contract may be valid and enforceable, although no note or memorandum in writing of the bargain be made and signed by the party to be charged therewith. The plaintiff in his declaration asserts the existence of a valid contract and upon the motion or objection of the defendant must prove such an one. The scope of the plea of the general issue is as a general rule a denial of every material averment of fact in the declaration. The precise question presented was answered adversely to plaintiff’s contention in Third Nat. Bank of New York v. Steel, 129 Mich. 434 (64 L. R. A. 119).

It follows that the judgment must be, and it is, affirmed.

Montgomery, Hooker, Moore, and McAlvay, JJ., concurred.


text:
    BONNAZZA v. JOSEPH SCHLITZ BREWING CO.
    1. Principal and Agent — Authority or Agent — Making Lease.
    A corporation cannot be held liable for the rent of a building claimed to have been rented by its.agent, it not being shown that the agent had such general authority as would authorize him to make the contract, or that he was specially authorized.
    2. Use and Occupation — Liability—Evidence—Surrioienoy.
    Liability for use and occupation does not arise from the fact that goods and fixtures belonging to defendant remained in plaintiff’s building for a time, where it appears that they were there originally in possession of a third person as tenant, and there is no showing that defendant ever received possession from him.
    Error to Gogebic; Shepherd, J., presiding.
    Submitted November 11, 1908.
    (Docket No. 161.)
    Decided November 30, 1908.
    Assumpsit by Dominic Bonnazza against the Joseph Schlitz Brewing Company for rent. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Herb. M. Norris and. George O. Driscoll, for appellant.

      George C. Foster and M. M. Riley, for appellee.
   Moore, J.

In April, 1904, the plaintiff bought of Charles Leader a building in Ironwood, occupied in part as a saloon by one Marketti. Possession was to be given the .plaintiff May 1, 1904. It is his claim that Mr. Fred Horn was the agent of defendant, and on the 30th of April, 1904, rented the saloon of plaintiff for defendant for one year from May 1st at a rental of $35 a month. It is also Ms claim that, when he purchased the building, the saloon fixtures therein belonged to defendant, and that they remained in the building some months after the 1st of May, 1904. He sued to recover for 12 months’ rent, and also claimed that, if he failed to show he was entitled to this rent, in any event, he was entitled to recover for use and occupancy during the time the fixtures were in the building. No testimony was introduced on the part of the defendant. At the close of the testimony for the plaintiff, the defendant asked the judge to direct a verdict in its favor. In response thereto' the judge said:

“I fail to find in the evidence any fact that would tend to show that the defendant company had exercised actual ownership over this building in question. There is some testimony that they owned the property that remained there, but they do not seem to have disturbed its possession in any way for a long time, do not seem to have done anything actively towards taking possession of the property. The property remained, for all the testimony shows, in the legal possession of Marketti. There is no evidence to show that the possession of any of the personal property ever passed from Marketti to the defendant, and I think that would be the only ground upon which the plaintiff could go to the jury that the defendant had had the benefit of the use and occupation of the property. I think I will take the case from the jury and direct a verdict for the defendant. Gentlemen of the jury, the plaintiffs have rested their case, and it appears to the court that the evidence of any contract on the part of the defendant is deficient in the fact that there is nothing to show either that Mr. Horn had such general authority as would authorize him to enter into this alleged contract, or that he was specially authorized by the defendant company to enter into the contract. The evidence being deficient in that respect, I have concluded that there is nothing for the jury to decide. You will therefore say that you find no cause of action.”

The case is brought here by writ of error.

We have read the briefs of counsel and every word of the testimony with great care. While the record does show that for some purposes Mr. Horn was the agent for defendant company, we agree with the circuit judge that there is a failure to show that he was authorized to make the contract sued upon. See Grover & Baker Sewing Machine Co. v. Polhemus, 34 Mich. 247; Hirshfield v. Waldron, 54 Mich. 649; Bond v. Railroad Co., 62 Mich. 643; Ironwood Store Co. v. Harrison, 75 Mich. 197. It is proper to add, when plaintiff wrote defendant in July, claiming rent, that it at once denied having rented the saloon.

We also agree with the circuit judge that there is a failure to show such use and occupancy as would make defendant liable.

Judgment is affirmed.

Montgomery, Ostrander, Hooker, and McAlvay, JJ., concurred.