author: Long, J.

text:
    Stephen O. Coon v. William C. Anderson.

      Money had and received — Payment by giving credit — Parties— Pleading — Abatement.
    Defendant, who was a member of a firm engaged in the sale of agricultural implements, and a stockholder and director in a corporation which manufactured such implements, by means of false and fraudulent statements, induced plaintiff to purchase a threshing machine of said corporation, he paying the sum of $100 thereon. The corporation, on learning of the fraud practiced upon the plaintiff, repudiated the sale, and gave defendant’s firm credit on account for the amount so paid on the purchase price, and allowed the same in a subsequent settlement. Between the date of such credit and the time of settlement, the assets of the firm were absorbed by a corporation which succeeded to its business, and defendant denied any knowledge of the entry of such credit before the settlement. In a suit brought by the plaintiff against the defendant for money had and received, the defendant sought, under the plea of the general issue, to rely upon the fact that the money was credited to the firm, and not to himself. And it is held:
    a — That; if the defendant desired to make such a defense, he should have pleaded the non-joinder of his copartners in abatement, and that he could not raise the question under the plea of the general issue.
    b — That the jury.should have been instructed, as requested by the plaintiff, that, plaintiff having paid the $100 to the corporation on account of the purchase of the machine, if they found “that the corporation relinquished the sale, and returned the $100 to the defendant, or to the firm of which he was a member, their verdict should be for the plaintiff.
    Error to St. Clair. (Vance, J.)
    Submitted on briefs June 8, 1894.
    Decided June 26, 1894.

      Assumpsit. Plaintiff brings error.
    Reversed.
    The facts are stated in the opinion.

      Avery Bros. <& Walsh, for appellant.

      Phillips t& Jenlcs, for defendant.
   Long, J.

This is an action of assumpsit, commenced in justice’s court, where plaintiff had judgment. On appeal to the circuit, verdict was directed for defendant.

The facts show that on September f, 1885, plaintiff made arrangements with one Stout, agent for the Birdsell 'Threshing Machine Company, to purchase a thresher. Stout lived in Pontiac, and the company was located in the state of New York. The machine was to be' sent to Port. Huron, and was to arrive there September 8 or 9. Plaintiff went to Port Huron on the 9th, with men and teams, to bring the machine home, but found it had not arrived. He telegraphed both the company and Stout about it. While waiting for an answer, hb saw the defendant, who attempted to sell him a thresher. He told defendant he could not buy from him, as he expected his machine in at 2 o’clock, and was going to the train at that time to see about it. Defendant said that was not necessary; that Stout had been there the day before, and it was probable he could not get the machine, and had gone home; but that he would telephone to the depot, and find out whether the machine had come. Defendant called .through the telephone, and pretended to inquire if the machine had come, and advised plaintiff that the agent of the railroad company had' said that it had not, and that Stout had been there the day before, and gone, and they had not seen him since. Upon this the defendant induced the plaintiff to go about a mile, and look at an Upton machine, manufactured and sold by a company of which defendant was a stockholder and director. Arriving there, defendant went through the pretense of trying to call Stout by telephone, but said to plaintiff that he could not reach him. Defendant thereupon induced plaintiff to purchase an Upton thresher; and, as he says, it being in the midst of the threshing season, and he being hurried and under expense, he made the arrangement, and paid $100 on it. They went into the Upton office, and Anderson said to the agent:

“Mr. Ooon has made up his mind to take one of our machines. He will pay you $100 on it. You can make out the papers.”

The papers were made out and signed, and, at the direction of Anderson, plaintiff paid to the agent of the Upton Company the $100. The parties then returned to the city, and had no sooner arrived there than Mr. Stout came alongside the buggy in which they were, when the defendant hurried away. The plaintiff then learned that the Birdsell machine had arrived, and that Stout had not been away, but had been looking for him. He also learned that when defendant called up the freight office, through the telephone, he had been advised that Stout was then in the city, and was looking for plaintiff. Plaintiff then went to Anderson and demanded repayment of his money. This was refused, unless the Birdsell Company would allow him to retain $50. The Upton Company was called upon, and repudiated Anderson’s conduct and the sale as soon as the particulars were made known.

It appears that the Upton Company had an open account with Anderson & Co., and upon learning of Anderson’s conduct the agent in charge of the Upton Company’s affairs credited upon its books, to Anderson & Co., this 1100, “ By cash from Coon.” Plaintiff thereafter saw defendant, and told him that he knew he had received the money back from the Upton Company, when defendant said: “ Yes, I received it in a kind of a way, — in a kind of deal. I don’t know just how it was.” It was also shown upon the trial that Anderson said before the suit was brought that he had the money ready in the office, and “ Coon will have no more trouble about it, as I have the money here in the office for him.” Plaintiff never took the Upton machine, and some time in July, 1886, the Upton Company and Anderson & Co. had a settlement of the account, in which Anderson & Co. were allowed this $100. The defendant showed on the trial that in January, 1886, the incorporation of Anderson & Co. was formed, and that this corporation absorbed the business of the old copartnership of Anderson & Co., and denied ever having had, personally, this $100 back from the Upton Company. The reasons given by the court for directing a verdict for defendant are as follows:

“It is my conclusion that it would not be sufficient to justify this action to show that the Upton Manufacturing Company credited Anderson with this $100 which they got from Coon, on the books, unless they brought home that fact to Mr. Anderson, and he was shown to have known it. I think there is no testimony in this case to show that 'William C. Anderson or Anderson & Co. knew of that credit of $100 which Coon paid to them on the books of the Upton Manufacturing Company until about the time of the' settlement, in July, 1886. Mr. Anderson could not be made liable to Mr. Coon for money had and received, by the Upton Manufacturing Company simply crediting him up with $100 they received from Mr. Coon. Neither, do I? think, could the firm of Anderson & Co. be made liable in an action for money had and received, if the Upton Manufacturing Company actually received Coon’s money, and, in the dealing between themselves and Anderson & Co., gave Anderson & Co. credit for it. That would be a matter of dealing between themselves. The action is based upon the proposition that one man has money belonging to another, and if it is credited up, one way or the other, in that way, unless Anderson & Co. would assume the possession or hold the money for Mr. Coon, or acknowledge that it was taken for Coon, if they received it upon a settlement of their business transactions, it would not justify the action for money had and received.
“As I said before, the testimony here seems to me conclusive and undisputed that this money, if it passed out of the hands of the Upton Manufacturing Company at all, passed by a credit to Anderson & Co. * * * If Anderson & Co., as a copartnership, were liable for money had and received on account of a credit from the Upton Manufacturing Company, the action should have been brought against all the partners. It would be a joint liability, and not joint and several, and Mr. Anderson could not be sued alone for it.”

The plaintiff had asked the court to charge the jury as follows:

“ The plaintiff having paid to the Upton Manufacturing Company the sum of $100 on account of the purchase of a certain threshing machine, if you find that said Upton Manufacturing Company relinquished said sale, and returned said $100 to W. C. Anderson, or the firm of Anderson & Co., then your verdict should be for plaintiff.”.

This request should have been given. The plea was the general issue, and the defendant could not insist, under it, that the money was paid over to his firm, and not to himself. If he desired to make this defense, he should have pleaded the non-joinder of defendants in abatement. He could not raise thé question under the general issue. Ballou v. Hill, 25 Mich. 204; Bowen v. Culp, 36 Id. 224.

If defendant received the money from the Upton Company, or bad credit for it in tbe settlement with the Upton Company, he would, under the circumstances here stated, be liable for its repayment to the plaintiff. By his false and fraudulent statements, he procured the plaintiff’s money to be paid to the corporation of which he was a stockholder and director. The money was paid over to him, or credit given him for it in account; and an action of assumpsit, as for money had and received, would lie against him for its recovery. The court should have submitted the question to the jury, as requested.

Judgment must be - reversed, and new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    John Osborn v. Robert Potter and Clara Clarke.

      Fixtures — Landlord and tenmit — Conversion.
    Plaintiff purchased from a tenant a building which he had erected upon the leased premises under a lease which provided for the conveyance of the land to him on the payment of a given sum before the expiration of the lease. Plaintiff entered into pos- . session, with the knowledge of the lessor, who agreed to give him a new lease, which she did after the expiration of the first lease. After receiving said lease, the plaintiff sublet the land and building. The lessor subsequently conveyed the land to another party, to whom plaintiff paid the ground rent. After the expiration of his lease, plaintiff requested permission to remove the building, which was refused, whereupon he brought suit in trover to recover its value. And, in affirming a judgment in his favor, it is held: a — That the building became no part of the realty, and that the first lessee had the right to remove it at any time before the lease expired; citing Kerr v. Kingsbury, 39 Mich. 150.
    b — That the contention that, because said lessee had the privilege of buying the land within five years if he chose, it is to be conclusively presumed that the building was placed on the land with the intention of permanently annexing it to the freehold, is untenable; that the lessee still retained his option to purchase after, as well as before, the erection of the building, and, if he elected not to purchase, it was his privilege to remove the building as personal property at any time before the expiration of his lease; that it appears from the findings of fact that, when the building was erected, it was the lessee’s intention, if his business should prove satisfactory, to purchase the land, but, in case he should not prefer so to do, to remove the building; and that, under these circumstances, the building did not become a part of the realty; citing Manwaring v. Jenison, 61 Mich. 117. \
    Error to Bay. (Cobb, J.)
    Argued June 7, 1894.
    Decided June 26, 1894.
    Trover. Defendants bring error.
    Affirmed.
    The facts are stated in the opinion.

      J. W. Clarice (Frank L. Fales, of counsel), for appellants.

      Pratt, Van Kleeck é Gilbert, for plaintiff.
   Montgomery, J.

This is an action of trover for the conversion of a frame building erected by one Dorr E. Kinney, in 1878, upon land owned by Antoinette Beck-with. On the 14th of October, 1878, Mrs. Beckwith executed a lease to Kinney for the term of five years. The lease provided that if the second party should pay said first party, in addition to the rent and taxes, $500 within five years, then “said first party will convey said land to him.” Kinney occupied the premises until January 6, 1881, when he sold the building to the plaintiff. Plaintiff went into possession at once, with the knowledge and consent of Mrs. Beckwith, the lessor, and paid rent to her. Mrs. Beckwith agreed to give the plaintiff a five-year lease. It passed on from day to day, and ran four years without any written lease. On March 5, 1885, Mrs. Beckwith executed a lease of the land to the plaintiff for five years from that date. This lease contained a provision permitting the plaintiff to remove any and all buildings from the land at the time of the expiration of the lease. Plaintiff sublet the land and buildings to Potter & Banker for two years from March 7, 1885, with the privilege of five years from that date. Potter is one of the defendants in the present case. Potter testified that he paid rent to Osborn until March 7, 1892; that he did not pay him rent any longer because he came to the conclusion that the property belonged to another party. About the time of the expiration of the lease from Mrs. Beckwith to plaintiff, and while he was in negotiation with her for a purchase of the land, the defendant Clarke made the purchase, and obtained a deed. Plaintiff paid the land rent to defendant Clarke up to March 7, 1892. After Potter refused to pay rent to plaintiff, plaintiff demanded the building from defendants, and requested to be allowed to remove it from the land, and, upon defendants’ refusing to allow him to do so, brought this suit for the conversion of the property.

Upon this state of facts the case would appear to be very simple. We think the building became no part of the realty, and that the lessee had the right to remove it at any time before the lease expired. Kerr v. Kingsbury, 39 Mich. 150. It is urged that, because Kinney had the privilege of buying the' property within five years if he chose, it is to be conclusively presumed that the building was placed upon the premises with the intention of permanently annexing it to the freehold. But we do not think such inference is at all necessary from that fact. Kinney still retained his option after, as well as before, the erection of the building. If he should elect not to purchase, it was his privilege to remove the - building as personal property at any time before the expiration of his lease. There is a special finding of fact in which it is stated that, when the building was erected, it was the intention of Kinney that, if his business should prove satisfactory, he would avail himself of the option to purchase contained in said lease, but, in case he should not prefer to avail himself of said option to purchase, to remove said building. Under these circumstances, the. building did not become a part of the realty. See Manwaring v. Jenison, 61 Mich. 117.

It is claimed that defendant Potter was evicted from the premises before the commencement of this suit, and entered into a contract with one Kate A. Smith, who had become the owner, and that he Iona fide yielded up possession to prevent being actually expelled, and that, therefore, his refusal to deliver possession to plaintiff cannot be treated as a conversion. But the circuit judge finds that the premises described in the proceedings to evict Potter are not the premises upon which the building in question stands, and the record fails to disclose any right of ownership in Kate A. Smith.

The suggestion that the lease to plaintiff was not executed with the formality required for the execution of contracts for the sale of lands is sufficiently answered by the finding of fact, which we think fully justified, that the building never in fact became a part of the realty.

We think there was no error committed on the trial of the case.

The judgment will be affirmed, with costs.

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

       The lease was not dated or witnessed, and was signed by the lessor only.


author: Hooker, J.

text:
    Hiram Peek and John Peek v. James M. Peek and George Peek.

      Equity — Rescission of deed — Parent and child — Undue influence.

    Complainants, as two of the five heirs of their mother, filed a bill to set aside a quitclaim deed given by them'to their father of their interest in a farm which he purchased and paid for, but the legal title to which was taken in the name of their mother, and of which she died seized. The bill charges that the deed was never intended to pass title; that it was given by complainants upon the representation by their father that one of their sisters ‘ had agreed to quitclaim her interest in the land for a given sum, a large portion of which she had received, but that she refused to execute a deed unless complainants released their interest, and that he desired their deed to show to their sister, and thereby induce her to perform her ¿greement, and that, after using it for that purpose, he would destroy the deed. And it is held that, while equity usually refuses to aid parties to such transactions, the evidence in this ca'se tends to show a degree of ascendency over the complainants, growing out of the parental relation, which, together with the circumstances under which they lived (complainants, although of full age, living with their father at the time), puts the case upon a little different footing from those where the parties are equals; that the circuit judge, who saw the witnesses, was impressed by the fact that, as between the parties, the equities were strong in favor of the complainants, and the Court are not disposed to disturb his decree.
    Appeal from Ingham. (Person, J.)
    Argued June 7, 1894.
    Decided June 26, 1894.
    Bill to set aside a deed on the ground of fraud, and for an accounting. Defendants appeal.
    Decree affirmed.
    The facts are stated in the opinion.

      John M. Corbin, for complainants.

      Lawton T. Remans {Smith, Lee é Day, of counsel), for defendants.
   Hooker, J.

For many years previous to November 27, 1880, the defendant James M. Peek, and his wife, Ann Peek, lived upon the premises in controversy, which constituted their homestead. The land was purchased by the defendant, and title taken in the name of Ann Peek. The consideration seems to have been paid by defendant, and he afterwards made substantial improvements in the way of buildings. On the day above mentioned, Ann Peek died, leaving five children of herself and the defendant, of whom the complainants were two. There was another son, George, who was younger, and two daughters, who were older. The daughters were married, and lived with their husbands. At the time of their mother’s death the complainants were aged, respectively, 27 and 25 years, and had always lived with their father, the defendant, upon the premises. On February 22, 1881, the complainants executed a life lease of the premises to their father at his request. An administrator of the wife’s estate was appointed, and in May, 1881, the complainants and their father went to the residence of Alvira J. Tallman, one of the daughters, who lived in an adjoining township, where a difficulty occurred, ending in a prosecution for assault and battery. Finally the parties arranged the matter, and upon May 21, 1881, Alvira deeded her interest to the defendant for $525. This deed was witnessed by one of the complainants, and the mortgage which .defendant gave to Mrs. Tallman for a portion of the consideration bore the signature of the other complainant as a witness. She testified that the boys (these complainants) had previously signed a life lease, but that she was- never asked to do so. She stated further that upon that day the complainants signed a paper to allow defendant the same amount for building the house, out of their respective shares, as she did, which we understand was $100. No such paper appears in the record, unless it be tbe following, which bears that date:

“To Huram Bristol,
“Administrator of the Estate of Ann Peek, Deceased:
“This- is to certify that all matters in controversy in ■ relation to' the above estate are amicably settled by the heirs of said estate, and we desire that no further business be done or expense made, as all costs made to date will be paid within 30 days.
“Mason, May 21, 1881.
[Signed] “Hiram Peek.
“John Peek.
.“ALYIRA J. TALLMAN.”

This writing was delivered to the father upon that day.

On the 16th day of August following, the complainants executed, and allowed the defendant to take into his possession, a quitclaim deed of their interest in the land, and he recorded it in November, 1881. The bill is filed to set aside this deed, it being claimed by the complainants that the deed was never intended to pass title, but that it was made upon the representation by the defendant that Mrs. Tallman had agreed to quitclaim her interest for $525, and had received a large portion of the purchase price, but that she refused to execute a deed unless the boys did, and that he wanted this deed to show her, so that she would deed her interest as she had agreed to do, and that, after using complainants’ deed for that purpose, he would destroy it. Defendant claims that the deed was made to convey to him complainants’ interest, and that no such-representation or agreement was made. On August 20, 1881, the other daughter, Mrs. Reeves, who resided in Isabella county, quitclaimed her interest to her father. She testified as follows:

“Well, he came to my place, and my husband was called away. After he went away he says to me, ‘Mary, I will come out there if you will sign this life lease.’ Says I, ‘No, pa; I don’t want to.’ Says he, ‘You will be sorry, Mary, if you don’t.5 Those were the words. He said he could throw me and my husband out in the road before the next morning if he had a mind to do so. I finally signed it rather than to have myself put out in the road. He said I was signing a life lease, and I did not know that I signed a quitclaim deed. He discharged a mortgage for $150, which he had on my husband’s farm, which he agreed to do if I would sign the life lease, but, if not, he could make me trouble. He said my brothers would sign it when he got back home.”

On August 29, 1881, the four children mentioned signed and delivered to the defendant a receipt as follows:

“ Received of James M. Peek the full amount due me from the estate of Ann Peek, late of Aurelius, Ingham county, deceased, in consideration of which I do hereby sell, assign, transfer, and set over to the said James M. Peek my entire portion, distributive share of said estate, of every kind and nature whatsoever.
“Dated August 29, 1881.
“John Peek.
“Hiram Peek.
“Mart Reeves.
“Alvira J. Tallman.”

On March 19, 1882, the father, James M. Peek, married his present wife, with whom he has resided upon the land in question to the present time. On November 8, 1882, complainant Hiram Peek employed a lawyer, Mark S. Wolcott, now'of Jackson, Mich., to prepare a contract between his father and stepmother and himself, which was accordingly prepared by Mr. Wolcott, and signed by the parties, by the terms of which, after reciting that James M. Peek and Minerva Peek were the owners of the land described, it was provided that Hiram Peek should go upon the land, and assist his father in paying the.debts, care for his father and mother, and work upon the farm for 10 years, and upon the expiration of the 10 years, November 8, 1892, he should have a deed of the land in question. On November 24, 1882, complainant Hiram Peek was married, and did not live at his father's home to speak of after that date. March 14, 1884, James M. Peek made a conveyance to his wife, Minerva Peek, of a life estate in said lands, to commence after has death, provided she survived him, which instrument was recorded October 29, 1884. Mrs. Peek, the wife, disclaimed at the-trial any interest by this instrument, and again by disclaimer filed in this case. Administration of the estate of the mother was applied for by the daughter Alvira J. Tallman. Mr. Bristol, the administrator, and the justice, Mr. Day, who prepared the conveyances, and before whom the settlement was negotiated on May 21, 1881, both died before the commencement of this suit. Mr. Day died in the year 1884.

The bill was filed in December, 1891. The decree of the circuit court sustained the claim of the complainants, upon the theory that the defendant James M. Peek in some way, not clearly shown, obtained from his sons a valuable piece of property without consideration, and that a court of equity would not inquire with too much particularity whether this was done by fraudulently recording a deed never intended to pass title or by unduly taking advantage in some other way of the natural trust relation existing between parent and child. In his finding he adds:

“Even if the boys made the deed to assist in defrauding their sister, which is not the theory of their bill, they were not in equal wrong with their father, and the father should not in that case be permitted to enjoy the fruits of the wrong which he himself persuaded them into.''

It is impossible to read this record without concluding that the defendant James M. Peek had a strong influence over his children, though they were adults, and that he lost no time after the death of Ann Peek in securing the title to the premises, though at the same time be was owner of other lands. He imposed upon Mrs. Reeves, if she is to be believed, and brought sufficient pressure upon Mrs. Tallman to bring about a fight with her husband, which led to the arrest of the complainants, who were championing their father’s cause; he told Mrs. Russell of a scheme by which he designed to obtain the interest belonging to his minor son, George, of whom he was guardian; and we are disposed to credit the statements of the complainants about the method taken to obtain their deed. It is plain enough that he did not want it to show Mrs. Tallman, for she had deeded nearly three months before.

It must be admitted, however, that the complainants do not come here with perfectly clean hands, in view of the admitted object upon their part in giving the deed. On the other hand, it shows a deeper degree of craftiness upon the part of the father, who seeks to put up the bars behind him, when ■ he gets this deed, by pretending that he wants it for a fraudulent purpose, to which he thereby •ostensibly makes them a party. So much abhorrence has equity to such transactions that it usually refuses to aid parties who are connected with them. In this case, however, the evidence tends to show a degree of ascendency over the complainants, growing out of the parental relation, which, together with the circumstances under which they lived, puts the case upon a little different footing from those where the parties are equals. The circuit judge, who saw the witnesses, was impressed by the fact that, as between the parties, the equities were strong in favor of the complainants, and we are not disposed to disturb his decree.

The decree of the circuit court in chancery will be affirmed, with costs.

Long and Grant, JJ., concurred with IIooker, J. Montgomery, J., concurred in the result. McGrath, 0. .J., did not sit.


text:
    James Fero v. The H. M. Loud & Sons Lumber Company.

      Reformation of contract — Equity—Mistake—Evidence.
    Complainant filed a bill to enforce the specific performance of a. contract for the sale of 40 acres of land for the sum of $80. The defendant set up in its answer that, by mistake in drafting the contract, a provision reserving the timber on the land was omitted, and asked that the contract be reformed accordingly. The evidence showed that the timber was worth $800; that the complainant understood that the agent who made the sale had no authority to sell the land with the timber; and that complainant’s attention was called to the omission of the reservation clause at the time the contract was delivered to him. And it is held that the whole case shows a very plain attempt to overreach on the part of complainant, and that the prayer of the defendant for a reformation of the contract must be granted.
    Appeal from Alcona. (Simpson, J.)
    Submitted on briefs June 7, 1894.
    Decided June 26, 1894.
    Bill for the specific performance of a land contract. Defendant' appeals.
    Decree reversed, and one entered reforming tbe contract as prayed by defendant.
    The facts are stated in the opinion.

      O. E. M’Cuicheon, for complainant.

      M. J. Connine, for defendant.
   Montgomery, J.

The defendant is the successor of the Oschda Salt & Lumber Company. This bill is filed for the specific performance of a land contract, bearing date the 12th day of April, 1886, between the Oscoda Salt & Lumber Company and the complainant, by the terms of which the company agreed to sell to complainant 40 acres of land in township 26 N, range 8 E., for the agreed price of $80, payable in installments. The defense set np is that, by mistake of the parties, a provision in the written contract reserving the timber was omitted, and the answer asks that the written contract be reformed so as to conform to the original agreement and intent of the parties in that regard. The complainant was granted the relief prayed for in the bill, by the court below, and defendant appeals.

We are unable to agree with the conclusion reached by the circuit judge upon the question of fact. We think the testimony very clearly shows that the original contract was a contract for a sale of the land, reserving the timber, and that the complainant’s course in insisting upon its performance is unconscionable. It is true the complainant does not admit the fact that, by the terms of the original parol agreement, the timber was reserved, but his testimony'upon this point is not very satisfactory. He testifies on cross-examination:

“Q. Now, he reserved the timber, didn’t he?
“A. No, sir.
“Q. What do you mean by that?
“A. I mean what the contract says.
“Q. Before the contract was signed, he was talking with you about the land, and told you the timber was not for sale?
“A. No, sir.
“Q. What did he tell you about the timber?
“A. He did not say very much about the timber.
“Q. Tell me what he told yon about the timber.
“A. I could not tell you every word that he said about the timber.
“Q. You remember something?
“A. Of course, I would have to take the contract as it read.
“Q. Tell me what he said about the timber before the contract was made.
“A. I did not know anything about it at all.
“Q. Tell me what he said about the timber.
“A. The timber was not reserved, and it was not to be reserved, as I understood it.
“Q. I am asking you what he said about the timber.
“A. Of course, I know of some land that had been, but not exactly at that time, or previous to this, since this. I don't know whether they had before this or not. Since this time I think they have.
“Q. I ask you again what Mr. Buyers said about the timber.
“A. He did not say that there ever would be any timber reserved, or anything of the kind.
“Q. I am asking you what he did say.
“A. I could not exactly tell you what he said. I thinlc he said about the land.
“Q. What did he say about the timber?
“A. There was nothing said about the timber; nothing specially.”

The witness further testified that he made no estimate of the timber before he bought the land, and the testimony fairly shows that the timber on the land was worth $800.

Mr. Buyers,' the agent, on the other hand, testifies very fully that, before the contract was made, it was distinctly understood that the timber was to he reserved; that he received the contract, signed by Mr. Loud, as agent for the lumber company, and, when he delivered the contract to the complainant, called attention to the fact that the timber was not reserved, and the complainant said, It is good enough for me,” and signed the contract, and retained it. The testimony is very clear that Buyers had no authority to-sell the land with the timber, and it is very clear that the complainant so understood it, and must have understood that the officers of the company had made a mistake, in drawing the contract.

It is suggested in the brief of complainant's counsel that Buyers was not charged with the duty of knowing whether there was in fact any pine on lands that he bargained away, and there is no evidence that he had such knowledge in this ease; but there is evidence that he had sufficient sp that he advised the complainant in the outset that the timber was to be reserved, and there is evidence that the complainant knew of the fact of there being timber upon the land, although he had made no estimate of it. The whole case shows a very plaiD attempt to overreach on the part of complainant. The case is in its facts much like that of Osterhout & Fox Lumber Co. v. Rice, 93 Mich. 353.

The decree will be reversed, and a decree entered reforming the contract as prayed in the answer of defendant. Defendant will recover costs of both courts.

The other Justices concurred.


text:
    Ransom Roscoe v. Bridget McDonald et al.
    [See 91 Mich. 270.]

      Infants — Necessaries—Authority of guardian.

    An executrix, who is also guardian of the infant children of the testator, and who has in her hands sufficient personal property for their support and maintenance, cannot, by the purchase of necessaries for them, charge their real estate with the indebtedness thereby incurred.
    Appeal from Oakland. (Moore, J.)
    Argued June 8, 1894.
    Decided June 26, 1894.
    Bill to charge the estate of infants with necessaries furnished to their guardian. Complainant appeals from decree sustaining demurrer.
    Decree affirmed.
    The facts .are stated in the opinion, and in 91 Mich. 270.

      George P. Voorheis, for complainant.

      Charles F. Collier, for defendant Bridget McDonald.

      James H. Lynch, for remaining defendants.
   Long, J.

This case was in this Court at the January-term, 1892, and is reported in 91 Mich. 270. That bill was demurred to in the court below, and the demurrer overruled. In this Court the demurrer was sustained, and the bill dismissed. Complainant thereupon filed another bill, setting out substantially the same facts as in the former^ bill, but adding thereto an averment that the defendant Bridget McDonald was also the guardian of the minor children at the time the indebtedness to him was incurred, and now seeks by the present bill to charge the real estate of James McDonald for its payment, on the ground that it was for necessaries that the indebtedness was incurred.

The bill, however, alleges that there was of the personal estate of the deceased about the sum of $2,500 coming into the hands of the executrix, and no debts; but that the executrix, while having the rents, issues, and profits of the farm, did not use or expend the whole of this income for the purchase of necessaries for herself and the infant children, but for some other purposes outside; and that, in view of this fact, the complainant has equities superior to the children in the real estate of the deceased father. The claim, therefore, is that the executrix, being guardian of these infants, may charge their real estate by any debts she may contract, though she has sufficient personal estate in her hands for their support and maintenance.

It was held, when the case was in this Court on the former hearing, that the executrix had no power to bind the estate by contract. It must be held that, though guardian of these minors, she had no power to charge their real estate under these circumstances. She had sufficient personalty for their support and maintenance; and it cannot be said that complainant has superior equities over the infants, or that the guardian may in this indirect way charge the real estate. She could not mortgage or incumber the real property without an order of the court authorizing such action, and certainly it could not be accomplished in this way.

The bill was demurred to in the court below, and the demurrer sustained. That decree will be affirmed, with costs.

The other Justices concurred.


author: Grant, J.

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    The Haslett Park Association v. Frank J. Haslett and Sarah A. Haslett.

      Lost deed — Restoration—Conditions,
    Complainant filed a bill to restore a lost deed executed to it by the father and husband of the defendants, respectively, in his lifetime. The deed stated that it was subject to and accepted under the condition, among others, that the stipulations and conditions contained in a mortgage of even date should be faithfully complied with and performed in all parts and particulars: The mortgage was never executed, but there was nothing in the testimony to show that the grantor waived any of the conditions of the deed. And it is held that a delay on his part of less than two years to secure the execution of the mortgage cannot be construed into such a waiver, and that complainant is entitled to the restoration of the deed only upon the conditions of the original grant.
    Appeal from Ingham. (Person, J.)
    Argued June 8, 1894.
    Decided June 26, 1894.

      Bill to restore a lost deed. Defendant Frank J. Haslett appeals.
    Decree modified and affirmed.
    The facts are stated in the opinion.

      Oahill & Ostrander, for complainant.

      Phillips & JenTcs and Avery Bros. & Walsh, for appellant.
   Grant, J.

The bill in this case was filed to restore a lost deed claimed to have been executed by one James H. Haslett on August 24, 1889. Mr. Haslett died intestate, June 23, 1891. The defendant Sarah is his widow, and Frank his son. The complainant is a spiritualistic corporation organized under chapter 147, How. Stat. The land conveyed consists of 18 acres situated on the shore of Pine lake, in Ingham county. Mr. Haslett was an ardent spiritualist, and had for a long time been interested in the formation of an organization for the purpose of developing its philosophy and practices. He owned other lands adjoining this. He had openly and frequently declared his intention to convey this land to such an organization. He had employed an attorney to draw articles of association, a deed, and a mortgage to be executed by the association simultaneously with the deed. Previous to the meeting, which was held at the park August 24, when articles of association were executed, he had issued a circular to the spiritualists of Michigan, in which he set forth his purposes, the necessity of an organization, and his intention to convey the property. In this circular he published in full the proposed articles of association and the mortgage. It was contemplated that the three should be executed at the same time. The articles were executed, and one of the members drove hastily to Mason, 14 miles, to have them recorded in the register’s office, as provided by law. After his return, it is claimed, the deed was executed.

We are convinced, upon a careful examination of the evidence, that the deed was executed and delivered. This was the conclusion, of the learned circuit judge, before whom the case was heard in open court. It would be profitless to enter into any detailed statement of the evidence upon which, this conclusion is based. It is purely a question of fact, concerns no one but those directly interested, and can form no valuable precedent for guidance in future cases.

The-court decreed that the defendants had no interest, right, or title in the premises, and that they should execute a deed in the same form as that copied into and a part of the record of the complainant association in evidence in the case. A copy of the deed was preserved, and éxpressly states that it was subject to and accepted under the following conditions:

“First. James H. Haslett shall be perpetually elected one of the board of trustees of said corporation, and shall be president of such board during his life, and, after his death, such person as he shall designate in his will shall be such president, and such person shall remain president during his life.
“Second. The stipulations and conditions contained in a mortgage of even date herewith to James H. White shall be faithfully complied with and performed in all parts and particulars.-”

The mortgage was never executed. While it is not conclusively established what became of the deed after its execution, it is quite possible that it was handed to Mr. Haslett as president of the association, and was lost by him. Its loss was discovered some time before his death, which was sudden, and efforts were made to find it. It is evident that money did not come in as fast as was expected, and it is quite possible that the execution of the mortgage was delayed for this reason. Some bonds, however, were issued under the terms of the mortgage and the direction of the complainant. A resolution was passed by the trustees shortly after the date of the deed, directing the issue of $3,000 worth of bonds to Mr. Haslett. The mortgage provided for the raising of $25,000 for the purpose of erecting buildings and making improvements upon the property, and the bonds were to be issu'ed of the denomination of $5 each. The deed contemplated the execution of the mortgage, and made the stipulations and conditions therein a part of the deed. It may have been the intention of the court below to incorporate them in the decree. Haslett and others had contributed, and were to receive bonds for such contribution. There is nothing to show that Mr. Haslett waived any of the conditions in the deed. A delay of less than two years cannot be construed into a waiver. Complainant is entitled to this deed only upon the conditions of the original grant. There is much force in the position taken by the defendants’ counsel that the deed was not recorded, but was retained until the mortgage should be executed, so that the two might be simultaneously placed upon record.

The decree must be amended by providing for the execution of the mortgage to Mr. White as trustee, and for the issue of bonds to Mr. Haslett’s representatives for such amount as they may be able to establish by the proper proceeding that they are entitled to. As thus amended, the decree will be affirmed. No costs will be allowed.

Long, Montgomery, and Hooker, JJ., concurred. McGrath, 0. J., did not sit.


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    Charles E. Burgess v. John Isherwood.

      Conversion — Sale by landlord — Right of entry to remove property.

    1. The fact that one’s property is upon the land of another does not deprive him of the right to its delivery at a seasonable time and place, or an opportunity to enter and take the same; and captious refusal to deliver, especially if followed by appropriation or wanton destruction of the property, would amount to a conversion.
    So held where the owner of a farm, after leasing it, sold two stacks of straw on the farm, and, after the purchaser had taken away a portion of the straw, the tenant unconditionally refused to allow him to remove the remainder, and later burned and destroyed what was left in one of the stacks, and the purchaser sued him in trover for its value.
    2. Whether the purchaser attempted to remove the straw at unsuitable times, and therefore was lawfully prevented, or whether the defendant unlawfully converted the straw to his own use, should have been submitted to the jury.
    Error to Kalamazoo. (Buck, J.)
    Submitted on briefs June 8, 1894.
    Decided June 26, 1894.
    Trover. Plaintiff brings error.
    Beversed.
    The facts are stated in the opinion.

      Hawes & Luby, for appellant.

      E. M. Irish, for defendant.
   Hooker, J.

Mrs. Hall, being the owner of a farm, upon which there were two stacks of straw belonging to her, made a written contract with the defendant, whereby she covenanted and agreed to lease ” to him the premises, for five years from and after April 1, 1892. Subsequently, she sold to the plaintiff the two stacks of straw, to be drawn as he needed it, and at a suitable time. He drew off . several loads, and was then prevented from drawing the remainder by the defendant. He therefore brought this action in trover.

According to defendant’s theory, he had a right, under the writing, to deny plaintiff the right to enter upon the place, and his reason for doing so was that such entry would injure °his crop. Plaintiff testified that defendant unconditionally refused to let him have the straw, and that later he burned and destroyed what was left in one of the stacks, and claims that this amounted to an unlawful conversion of the straw. No evidence was offered upon behalf of the defendant. The judge, in a brief charge, instructed the jury that defendant was in the lawful possession of the premises, and had the right to deny plaintiff the privilege of entering to remove the straw, and that the testimony did not show a conversion. He accordingly directed a verdict for the defendant.

If it be conceded that the writing gave to the defendant the right to the possession of the land, it conferred no right to the two stacks of straw. These were the property of Mrs. Hall, and she had the lawful right to sell them. It may be that defendant was under no obligation to suffer their removal ’ at the time plaintiff attempted it, if he had a right to the exclusive possession of the land; but he certainly had no right to convert them to his own use, by using or destroying them. The testimony indicates that he intentionally burned a portion of the straw. Moreover, it seems undisputed that Mrs. Hall contracted these premises, but reserved property upon them. - She was evidently to keep stock upon them, for which she reserved pasture and hay. She owned the straw in these stacks, which a reasonable construction of the contract would give her a right to remove. This she need not do personally, but might authorize others to do it for her, so long as the defendant was not injured thereby. This she did by selling the straw, with the privilege of removing at a suitable time. Whether the plaintiff attempted to remove the straw at unsuitable times, and therefore was lawfully-prevented, and whether the defendant unlawfully converted the straw to his own use, were questions for the jury. If the defendant merely prohibited the plaintiff from taking his own, under" circumstances that justified such prohibition, he could not be said to have converted the property. If, however, it was done with a view to depriving plaintiff of his straw, or if defendant purposely destroyed the property, or some of it, these things were evidence from which the jury might have found an unlawful conversion. The fact that one's property is upon the land of another does not deprive the owner of the right to the delivery of such property, at a seasonable time and place, or an opportunity to go and take the same. Captious refusal to deliver, especially if followed by appropriation or wanton destruction, would amount to a conversion. The court was in error in taking the question from the jury.

The judgment will be reversed, and a new trial ordered.

The other Justices concurred.


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    A. R. Peck v. Herman C. Freese and Charles N. Rohde.

      Sale — Order—Countermand—Unilateral contract.

    1. A letter written by the orderers of a machine to the orderee, directing him to hold the machine until further notice, amounts to a countermand of the order.
    2. Such countermand would be rendered non-effective by the depositing by the orderee in the post-office of a postal card, properly directed to the orderers, notifying them of his acceptance of the order, before he received the notice of countermand.
    3. Defendants gave plaintiff’s agent an order for a cash register, ■ subject to plaintiff’s acceptance. The order stated that it was expressly agreed that it should not be countermanded. And it is held that, until acceptance, the contract was unilateral, and the order could be countermanded; citing Challenge Wind & Feed Mill Co. v. Kerr, 93 Mich. 328.

    Error to Van Burén. (Buck, J.)
    Argued June 8, 1894.
    Decided June 26, 1894.

      Assumpsit. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      Bréele Bros., for appellant.

      Mills, Osborn é Oavanaugh, for defendants.

       The effect of a unilateral agreement, such as an option, is examined, in the light of the numerous decisions on the subject, in a note to Litz v. Goosling, 21 L. R. A. 127.

   Long, J.

Defendants are copartners, doing business as Ereese & Rohde. On March 22, 1892, they gave an order in writing on plaintiff, who resides at Cortland, N. Y., for a cash register. The order was procured by plaintiff’s agent, O. W. Port, at Paw Paw, this State, and was for a register similar to the sample shown defendants, and for which they agreed to pay $45. The register, by the terms of the order, was to be delivered f. o. b. at Cortland, N. Y. It was stated in the order:

“ This order is given subject to your approval, and it is expressly agreed that it shall not be countermanded.”

The defendants on the trial contended that the contract was never completed, for the reasons:

1. That the order was countermanded before acceptance.

2. That there was no delivery of the register.

3: That the register was unfit' for the purpose for which it was purchased.

These questions were submitted to the jury, and they found in accordance with defendants claim.

Plaintiff claims, however, that the letter which defendants contend amounted to a countermand cannot be so construed. It is as follows:

“Paw Paw, Mich., March 24, 1892.
“A. E. Peck,
“Dear Sir: You received an order from us for one Peck Eegister from your man, O. W. Fort. Please hold same until further notice.
“Yours respt., Freese & Eohde.
“C. N. R."

The court was not in error in construing this as a countermand of the order.

Plaintiff claims, further, that he had accepted the order before receiving the notice of countermand. He says that on March 26 he sent a postal-card to defendants, saying that he was pleased to receive the order, and that the register would be shipped as soon as possible. It is denied that this postal-card was ever received, and defendants say the first they heard from plaintiff after the countermand was that he “ would send the register just the same.55 The question whether the notice of countermand was sent and received before acceptance of the order was submitted to the jury under the facts shown, and they found, in favor of defendants5 theory, that the order was countermanded before acceptance; the court stating to the jury that if the order was received by plaintiff, and he accepted it, by putting his postal-card in the post office, notifying defendants of his acceptance, before he received the notice of countermand, the countermand would not be effective. Under the testimony in the case and the claims made by the parties, this was a fair submission of that question.

Some claim is made that tbe order was one which could not be countermanded. The case is ruled by Challenge Wind & Feed Mill Co. v. Kerr, 93 Mich. 328. The order in that case recited that “this order is not subject to countermand.” The defendant wrote countermanding it; and it was said by this Court:

“ The order was one which the plaintiff could accept or not, as it pleased. * * * Up to the time of acceptance, * * * the defendant had the right to countermand, as no period was fixed within which the plaintiff might accept defendant’s terms.”

This is true of the order in the present case. It was one which plaintiff might accept or not, as he pleased.

This was expressly reserved in the order, and until acceptance the contract was unilateral. It was stated in the order that all claims for verbal agreements not embodied therein were waived.

As there had been no acceptance before countermand, the questions whether there had been a delivery of the register, and whether it was. fit for the purpose for which it was sold, become unimportant in this case, as no recovery could be had if the order was countermanded. We think that question was fairly submitted to the jury, and, they having found in defendants’ favor, judgment must be affirmed.

The other Justices concurred.


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    Charles Blumeno v. The Grand Rapids & Indiana Railroad Company.

      Carriers — Ejection of passenger — Instructions—Damages.
    1. Where the circuit judge, in charging the jury, incorrectly states the theory of the plaintiff, and, on his attention being called to the matter, corrects the erroneous statement, and makes it conform substantially to the plaintiff’s claim, the plaintiff is not injured by the statement complained of.
    2. The rule laid down in Sheahan v. Barry, 27 Mich. 217, 227,— that the use by the circuit judge, in his charge, of language which may lead the jury to infer that the court has little confidence in the testimony of the plaintiff, is not error if they are fully informed and understand that they are not bound to follow the views of the court, but have the right and are in duty bound to decide for themselves, — is not to be 'extended to cases where the instruction implies a duty on the part of the jury to yield their judgment to that of the circuit judge.
    3. It is reversible error for the circuit judge, in a personal injury case, to instruct the jury practically that the plaintiff has not sustained serious injury, his testimony to the contrary notwithstanding.
    So held where -the circuit judge stated to the jury that the plaintiff claimed that he was seriously injured, and incapacitated for work, and that he was a well man before receiving the injury, and never had to take medicine; that, as against this claim, was the testimony of two witnesses who testified that the plaintiff took treatment in their presence time after time, and complained of being ill, and stated that he intended to quit the business in which he was engaged because of poor health; that the latter evidence tended to show that plaintiff’s testimony was not true; and, further, that the case was not a very serious one, and would not justify very large damages, and that a verdict for any very substantial amount would not stand at the hands of the court.
    Error to Osceola. (Judkins, J.)
    Submitted on briefs .June 8, 1894.
    Decided June 26, 1894.

      Negligence case. Plaintiff brings error.
    Reversed.
    The facts are stated in the opinion.

      Charles A. Withey, for appellant.

      T. J. O’Brien and J. H. Campbell, for defendant.
   Hooker, J.

The plaintiff appeals from a verdict and judgment in his favor for the sum of $30. The action was brought to recover damages for injuries alleged to have been sustained by the plaintiff upon occasion of his having been denied admission to defendant's train, and his ejection therefrom by defendant's brakeman.

The plaintiff testified that, when he came to the rear end of the train, there were two or three men behind him, and the brakeman told him that he “should let by those men,'' and, after they got on the car, he said, “You can't get in here on this car;" that he could not ride in that car, but must go into the smoking car; that plaintiff expostulated with him, but he would not let him get upon the car; that the conductor shouted, “All aboard," and the train began to move, and the brakeman commenced to jerk, and jerked him from the train, and tore his clothes in three or four places. He testified further that he was a peddler, and that he was so injured that he has never since been able to carry a pack, or do any manual labor. He did not make a further attempt to board defendant's train on the occasion mentioned, but remained in Reed City.

The court said to the jury that certain facts were admitted, mentioning them, and then proceeded to state the- theories of the respective parties. In mentioning that of the plaintiff, the judge said:

“It is also a fact that he did not go, and was not allowed to enter the car at the rear end, and entered nowhere else at all, but was left there in town, and he brings an action here, and seeks to recover damages on the theory that he had a right to enter the car at the rear end, and was unlawfully and forcibly evicted and shoved off the car by the defendant's brakeman.”

Counsel for plaintiff says in his brief:

“The court put the plaintiff's case to the jury fon the theory that he had a right to enter the car at the rear end, and was unlawfully and forcibly evicted and shoved off the rear car by the defendant's brakeman.' This was; not the theory of the plaintiff's case at all, and the court's attention was called to the fact then and there that it was not his theory, but he failed to correct what he had said. Plaintiff's theory was, as made by his declaration and as proved, that he was forbidden to enter that car, and was told that if he rode on that train he must go into the smoking car.”

The subject was called to the court's attention at the time of the charge, and he modified the passage quoted as follows:

“The plaintiff's theory is that he went to the rear end of the passenger car, the last car of the train, and offered to get in the back door or rear door; that he was confronted by the defendant's brakeman, Mr. Heath, rand was not allowed to go in, but was told that he should go into the smoking car; that he sought to go into the car, but was pushed off in a violent and rough manner, and injured more or less.”

In the light of this, we think the plaintiff was not injured by the statement complained of, which was at at once corrected, and made to conform substantially to the claim of counsel.

This practically covers the fourth assignment of error, where complaint is made that the plaintiff’s theory was not presented to the jury at all, and it is said that this branch of the charge ignored plaintiff's theory. Inasmuch as it was a discussion of the defendant's theory, it is not surprising that the court, for the time being, should have ignored the plaintiff’s theory. ” Plaintiff’s theory had already been stated to the jury, and was again, in the paragraph following, in which it was quite fully explained and discussed.

The charge is said to be erroneous because it left the jury to believe that, if the company had a regulation requiring the closing of the rear door, it had a right to enforce it as against the plaintiff, regardless of whether it was enforced against others; that the evidence showed that others were permitted to enter at the very time that plaintiff was excluded, which situation was wholly ignored by the charge. The jury returned for instruction, and the following colloquy ensued:

The Court: I understand, gentlemen, you desire some further instructions.
“A Juror: The matter stands in this shape: We are 11 to 1. There is one of us-that seems to desire some further instruction on the evidence, or the evidence itself. He can state it himself.
“ The Court: What is the point?
A Juror: The point was whether this man had a right to guard that end of the train. II it was a rule that they had that he should lock that door, and he didn’t lock it, whether he had a right, when he found it unlocked, to stand and guard it. I claim he had.
“The Court: I think I covered that in my instructions. I say, if it was the regulation to close that door, and allow no one in that door at Reed City, that they had a right to require passengers to go to the front door, if that was the general regulation, and so understood and acted upon.
“A Juror: Wasn’t it the evidence in the case that it was?
“The Court: There is evidence on both sides of the question, I suppose.
“Mr. Campbell: There is no dispute that it was the general regulation of the road.
“Mr. Withey: I think your honor should instruct the jury that they have no right to enforce it as against one man and ignore it as to another.
“The Court: It should be a general regulation. They had the right to make a general regulation and enforce it, and they had the right, if it was a general regulation, to enforce it against this man, too.
“A Juror: Is there anything in the testimony to the effect that it was a regulation of the road? I didn't hear any.
“Hie Court: That was admitted in the case. It was" admitted by counsel on both sides.
“Mr. Withey: I ask the court to instruct the jury that they had no right, even though there was such a general regulation, to enforce it against, the plaintiff while at the same time and occasion they did not enforce it against others.
“The Court: I shall hold so, if that was the case. It should be a general regulation, applying to all alike. I think it is claimed that parties went in that same day at that same door. The, brakeman claims not, so it becomes a question of fact whether it was a general regulation, and whether it was applied to all parties alike at that time or not.''

Error is assigned upon the last paragraph. The court instructed the jury upon this point as contended for by the plaintiff.

The circuit judge said to the jury further:

“ Now, it is for you to say, gentlemen, whether, under the circumstances of this case, the damages amount to very much or not; whether the mere fact that the man was shoved off of the platform, as claimed by himself, and backed onto his feet to the platform below, would necessarily have been very serious, and whether or not, as a matter of fact, it has not. been magnified to a large degree. These are questions which appeal to your common sense as experienced men in the ordinary affairs of life. You certainly have no right and no desire to allow this man anything beyond what is fair and just, or to compel this company to pay anything more than is fair and just. He would be entitled to recover at your hands whatever would be fair, just, and proper under the circumstances as they existed at the time. He claims he was injured seriously; that he could not work after that; that he lost his job, and has been unable to earn as much as theretofore; that he never was sick before; never took medicine before; that he wras a well man, and that after that he was not well. That is his claim upon that head, while, as against that, you have the testimony of the two ladies who came upon the stand and swore that he took treatment in their presence time after time, complained of being ill, and made the statement to them that he intended to quit the business of carrying his pack for the reason that his health was poor; that he had a pain in the back; was feverish, etc. That evidence tends to show that his testimony is not true when he says in your presence that he never was sick before and never took medicine; it is a direct contradiction of his testimony, and should be considered by you, gentlemen, for what it is worth in this case, as bearing upon the credibility of this witness and the general scope of his claim and the general nature of his claim.
“Now, that is all that I care to say to you about this case. It is not a very serious case, and I say on this record it will not justify very large damages under any view of it in its strongest light, and a verdict here in any very substantial amount will not stand at the hands of this court, because, on the whole case in its strongest light, it will not justify it, and I don't think counsel for the plaintiff think so. You are men of intelligence, men of common sense, and I trust you can see right through this case from first to last in all its bearings and ramifications, and will stand out boldly and do justice between both these parties. That is what law is for. It should not be misused or abused. It should not be made the machinery for oppression, robbery, and fraud; it should be the machinery for the administration of justice between the parties. * * * Do what you think is right, gentlemen of the jury, using your keen common sense, your shrewdness, and your sense of justice.''

That the language complained of might lead the jury .to infer that the court had little confidence in the testimony of the plaintiff is apparent. But this was not error if the jury were fully informed and understood that they were not bound to follow such opinion, and had the right and duty to decide for themselves. This is the rule laid down in the case of Sheahan v. Barry, 27 Mich. 217, 227, where the late Mr. Justice Campbell cites and discusses the authorities. See, also; Elliott v. Van Buren, 33 Mich. 49, 58. But this Court has in many cases indicated that this rule is not to be extended to cases where the instruction implies a duty on the part of the jury 4o yield their judgment to that of the judge. In our opinion this charge went further, and practically instructed the jury that the plaintiff had not sustained serious injury, his testimony to the contrary notwithstanding, especially in view of the fact that he informed the jury that a verdict for a “substantial” amount would not be allowed to stand.

It is not impossible that the circuit judge placed a proper estimate upon the value of the testimony and the character of the case, and we have no reason to doubt his motives in giving these instructions. They are, however, made the basis of caustic strictures upon the trial judge, strictures which ought not to have been tolerated by him, if brought to his notice by being embraced in exceptions to the charge, and which should not pass unnoticed here. Counsel could as well have made his points without charging misconduct on the part of the judge, which he does by saying that—

“It is impossible to read this charge without being impressed with the idea that the trial judge made a much stronger defense for the railroad than its regular counsel, and that said judge was ‘gunning for game’ on Ms own account.”

In this conection we quote another unseemly comment upon the trial court. Speaking of the charge, it is said:

“It bears upon its own face its utter dishonesty. I make no pretense of respect for the charge or the judge that delivered it. It means nothing else than that the trial court deliberately and purposely, with preconceived intention, defeated the plaintifE, so far as in him lay. It cannot be excused as inadvertent, or even as carelessness. It is simply malicious, — a wanton prostitution of the most sacred element of his office.”

Such attacks in court records upon honorable members of the profession are without the pale of professional ethics, and, as such, we feel that we owe it to the judiciary and the profession to set the seal of our disapproval upon them.

The judgment will be reversed, and a new -trial ordered.

The other Justices concurred.


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    The Union Central Life Insurance Company v. Clarence M. Howell et al.

      Principal and agent — Bond—Pleading — Denial of execution— Evidence — Instructions to jury.

    1. Where, in a suit upon a bond given by an agent to secure the performance of his contract with the principal, a copy of the bond is served with the declaration, and the defendants plead the general issue, and no affidavit denying the execution of the bond is filed under Circuit Court Rule No. 79, the plaintiff cannot be put to proof of the execution of the instrument or the handwriting of the defendants, and testimony tending to show that the bond was not executed until some time after the date which it bears is inadmissible.

    2. Where, in such a case, the testimony is conflicting as to whether the contract, to secure the performance of which the bond was given, was superseded or suspended for a time by a later contract, such disputed fact should be left to the jury.
    3. Where, in such a case, there is evidence tending to show that the agent received some items, -at least, under the original contract, for which the bond would stand as security, the court cannot properly deny plaintiff the right to a verdict ' upon the ground that the amount so received is in dispute, it being the province of the jury to say how many and what items are shown to have been due to the plaintiff.
    Error to Saginaw. (Edget, J.)
    Submitted on briefs June 8, 1894.
    Decided June 26, 1894.

      Assumpsit. Plaintiff brings error.
    Reversed.
    The facts are stated in the opinion.

      Swarthout & O’Keefe, for appellant.

      John A. Oombs and Herbert A. Forrest, for defendants.

       See note at end of the opinion.

        DENIAL OP EXECUTION OP WRITTEN INSTRUMENT UNDER CIRCUIT COURT RULE NO. 79.
      For cases bearing upon the proper construction of and practice under Circuit Court Rule No. 79, which provides- that upon the plea of the general issue in an action upon any written instrument, under seal or without seal, the plaintiff shall not be put to the proof of the execution of the instrument or the handwriting of the defendant, unless the defendant, or some one in his behalf, shall file and serve a copy of an affidavit denying the same; that this rule shall apply in actions brought against indorsers as well as other parties, and in favor of a defendant in cases where claims by way of set-off are insisted upon by him; that it shall be filed, when by the defendant, with the plea, and, when by the plaintiff, within' 10 days after service of the specific set-off claimed; but that the court may, upon proper showing, enlarge the time for filing such affidavit, — see:

        To What Instruments the Buie Applies.

      1. Hoard v. Little, 7 Mich. 468, holding that the rule was adopted with reference to the statutes which provide that, in all actions on bills of exchange and promissory notes, the plaintiff may declare on the money counts only, and give the bill or note in evidence thereunder, where a copy of the bill or note has been served with the declaration, and that, in case of default, the clerk may assess the damages as though the bill or note had been specially declared upon; and that the rule is not restricted to instruments specially counted on.
      2. Elliott v. Green, 10 Mich. 113, holding that the rule was designed to cover cases of private instruments, and not such undertakings in the course of justice as are at least prima facie evidence of themselves when produced; and that, although a recognizance of special bail is in one sense a written instrument, it is not covered by the rule.

        Amendment of Plea by Filing Affidavit.

        1. Polhemus v. Savings Bank, 27 Mich. 44, holding that the circuit court has power, in its discretion, to allow a defendant to amend his plea by putting in an affidavit denying the execution of the instrument declared upon.
      2. Freeman v. Ellison, 37 Mich. 459, holding that there is no reason why a circuit court should not allow an affidavit of denial to be filed at any stage of the cause; and that such leave ought not to be refused where it will work manifest injustice to decline it.
      3. Towle v. Dunham, 76 Mich. 251, 253, where suit was brought against the members of a firm upon promissory notes purporting to have been executed in the firm name. Three of the defendants pleaded separately, and gave notice that the notes were signed by the fourth defendant while he was a member of the firm, and used by him in his own business, of which fact plaintiffs had notice when they received the notes. Prior to the death of the fourth defendant, the case had been noticed for trial at three several terms of court, and after his death it was revived against the remaining defendants, who on the trial asked leave to file an affidavit denying the execution of the notes by them or either of them, said affidavit to be in substantial compliance with the notice attached to their plea. No showing was made to excuse the delay in filing such affidavit. And it was held that the discretion of the court in denying the motion was properly exercised.
      4. Savings Bank v. Circuit Judge, 83 Mich. 647, where, on the trial of a suit brought on village bonds, the testimony tended to show that the bonds sued upon were not the ones authorized to be issued, but another set of the same amount, and containing recitals upon their face which the plaintiff claimed induced it to purchase in the belief that the bonds were such as the village had power to issue. The village had not denied the execution of the bonds under the rule, and, after the case was submitted to the court for decision, entered a motion for leave to amend its plea by adding an affidavit denying such execution, claiming that the latter bonds were never issued by authority of the village. And it was held that the allowance of the amendment, as in the nature of one to cover proofs, was within the discretion of the trial judge.

        Sufficiency of Affidavit.

      1. McCormick v. Bay City, 23 Mich. 457, holding that the affidavit of denial should not be subjected to any very technical rules of construction; that if it appears that the defendant means to contest the execution or delivery of the instrument declared upon, in good faith, any legal questions concerning the sufficiency of the defense should be reserved for the trial, when the facts can all be presented; that it never was designed that a defendant should be compelled in his affidavit to state every fact, but merely to indicate his defense, or to make a plain denial.
      2. Mills v. Bunce, 29 Mich. 364, where an action was brought against three partners upon two promissory notes, purporting to have been made by the firm in the firm name. Two of the defendants made and filed an affidavit, in which each for himself denied that he ever signed, executed, or delivered either of the notes. And it was held that this was such an affidavit as in every case of a partnership note might be made by each of the partners except the one who actually signed in the partnership name, and delivered the instrument; that the denial in such a case should either be jointly on the part of all the defendants, or, if a part of them only file an affidavit on their own behalf, the denial should be broad enough to negative such a proper execution of the instrument in the partnership name by another partner as would bind the defendants who file it as makers.
      3. Anderson v. Walter, 34 Mich. 113, where the declaration counted upon a negotiable note, and the defendant pleaded the general issue, and filed an affidavit setting forth that the signature to the note he believed to be his, but that the same was procured under circumstances, fully set forth, which would render him not liable thereon. Upon the trial, evidence offered by the defendant to show that he never signed the note was objected to, because in his affidavit he had not denied the execution of the note. And it was held that a defendant cannot be required to swear that the signature appearing upon an instrument is not his genuine signature, in order to deny the execution; that the signature may be genuine, and yet the instrument a forgery; that in such a case he could not deny the signature under oath, but would admit it, and set up facts from which it would appear that he was not bound by or ever executed the instrument sued upon.

        Effect of Affidavit may be Rebutted by any Competent Testimony.

        Hunter v. Parsons, 22 Mich. 96, where plaintiff sued upon a promissory note purporting to have been made by the defendant to a third pex-son. . The defendant filed an affidavit denying that he ever executed any such note as the one sued upon, and on the trial testified that he believed the note produced was signed by him, but that it had been altered; that the words “or bearer” had been inserted, and the rate of interest changed. The payee was not called by the plaintiff as a witness to the genuineness of the note. Exception was taken by the defendant to the x-efusal of the court to instruct the jury that if the plaintiff had means of showing that the note was executed by the defendant, as then produced, by the person to whom it was given, it was his duty to produce him or account for his absence. And it was held that the affidavit merely put the plaintiff on proof of the execution of the note; that there is no rule of law which makes one witness admissible or necessary in px-efex-ence to another, except where thex’e are subscribing witnesses; and that in other cases an insti'Ument may be proved by any competent testimony.

        Effect of Affidavit Denying Delivevy but not Signature.

        Burson v. Huntington, 21 Mich. 415, 427, where suit was brought in justice’s court upon a promissory note, the delivery of which the defendant denied under oath, under How. Stat. § 6875, which provides that the execution of a written instrument filed with the justice shall not be denied except under oath, and How. Stat. § 6928, which provides that when any such instrument, purporting to be executed by one of the parties to the suit, is declared upon or set off, it may be used upon the trial without proving its execution, unless such execution is denied upon oath. Axxd it was held that granting, but not deciding, that, under the statutes, the execution of the note would include its delivery as a part of such execution, the signature certainly constituted a part of such execution; that the affidavit, being special, — not denying the execution of the note generally, but merely its delivery, — admitted, by a very clear implication, defendant’s signature; and that the case upon the trial stood in all respects as if such signature had been admitted in open court. And Machine Co. v. McKee, 51 Mich. 426, holding the same doctrine where the suit was commenced in the circuit court, and the delivery of the note sued upon was denied under the rule.

        Effect of Affidavit of Denial.

      1. Ortmann v. Merchants’ Bank, 41 Mich. 482, where the defendant was sued as drawer and indorser of a bill of exchange which the plaintiff had discounted for the acceptors, and the defense relied upon was that the time of payment had been changed after the bill was signed and indorsed by defendant, without his consent or knowledge. That a change had been made was not disputed on the trial, and the question was whether it was made before or after the defendant’s execution of the paper. Defendant denied the execution of the instrument under the rule. And it was held that the burden of proof was upon the plaintiff to show that the instrument set forth in the declaration was signed by defendant as alleged.
      2. New York Iron Mine v. Citizens’ Bank, 44 Mich. 344, where the defendant was sued upon a bill of exchange purporting to have been drawn in its name “by W. L. Wetmore.” It pleaded the general issue, and filed an affidavit denying the execution of the bill. And it was held that this plea and denial imposed on the plaintiff the necessity of proving that the draft was drawn by Wetmore with competent authority.
      3. Wren v. McLaren, 48 Mich. 197, where suit was brought on a note signed “ McLaren & Wren.” Wren was defaulted, and McLaren pleaded the general issue, and annexed to his plea an affidavit denying not only the execution of the note by himself, but also its execution by any one having authority to bind him or to bind defendants jointly. And it was held that the affidavit was sufficient to put the execution and validity of' the note in issue.

        Effect of Failure to File Affidavit of Denial.

      1. Insurance Co. v. Perkins, 16 Mich. 380, 384, where the plaintiff, as assignee, counted in his declaration upon an insurance policy as issued at a certain date, and continued by renewal, and on the trial submitted in evidence the policy and instrument of renewal. Testimony having been given on the part of the plaintiff to show that he was at the time of the renewal, and for some time theretofore had been, the agent of the company, the latter offered several items of testimony, and consisting chiefly of entries in the insurance register of the plaintiff, with the avowed purpose of proving that the original policy was canceled, and that the renewal receipt, if given at all, was fraudulently given by the plaintiff after the fire. The plaintiff opposed the admission of this testimony as incompetent and immaterial, and the court held the testimony admissible to affect the credit of the plaintiff as a witness, and inadmissible for any other purpose. And it was held that the policy and instrument of renewal constituted the contract on which the action was brought, and, since these were in writing, their due execution as alleged could not be questioned by the company under its plea of the general issue, which was unaccompanied by the affidavit required by the rule; that the failure to-mate such an affidavit was an admission by the company that it did not mean to contest the fact of execution, and, as a consequence, the policy and renewal must be taken as having been duly executed as alleged, and there could be no occasion to inquire as to a supposed cancellation of the policy before the renewal, inasmuch as the latter, if well executed, as admitted, gave life to the former, which continued to the. time of the fire; and there was nothing, therefore, in the decision of which the company could complain. And Insurance Co. v. Manufacturing Co., 31 Mich. 346, 351, holding the same doctrine.
      2. Thatcher v. Bank, 19 Mich. 196, where, in a suit by an indorsee upon a promissory note, a copy of the note with the indorsement was served with the declaration. No affidavit under the rule was filed. On the trial the note and indorsement were read in evidence without objection. And it was held that the court was right in refusing to charge that it was necessary to-prove the indorsement in any other way.
      3. People v. Johr, 22 Mich. 461, where suit was brought for an alleged breach of the bond of a county treasurer, given to the Auditor General, in failing to pay over to the State Treasurer-moneys received for sales of lands for taxes, and objection was made that there was no evidence that the bond had ever been delivered to or filed with the Auditor General. There was no affidavit of the defendants, or any of them, filed under the rule, denying the execution of the bond. And it was held that, under the rule, the execution included delivery, by which alone the instrument, though signed, could become effectual, and that, therefore, the delivery of the bond was admitted.
      4. Spicer v. Smith, 23 Mich. 96, holding that the failure- of the maker of a promissory note, who is sued alone by an indorsee, to deny under oath the execution of the note or the indorsement, or the authority of the agent by whom the indorsement purports to have been made, will not relieve the plaintiff from proving that the indorsement was made by said agent, and that he had authority to make it; ,and that the admission of the note without such evidence of plaintiff’s title is error.
      5. McCormick v. Bay City, 23 Mich. 457, holding that a plea of the general issue to a declaration upon a sealed obligation admits the execution of the instrument described in the declaration, but not of any other; that such an admission will not dispense with the necessity of producing the instrument in court; that if, on being produced, it proves to be an unsealed bond, it is error to assume that there is no variance, and receive it in evidence without proof of execution.
      6. Polhemus v. Savings Bank, 27 Mich. 44, holding that the effect of the failure of the defendant to deny the execution of a promissory note set forth in the declaration is to admit that the note was given substantially in the form specified in the declaration, which admission he is not at liberty to contradict; and Jenkinson v. Monroe Bros. & Co., 71 Mich. 630, holding the( same doctrine.
      7. Jennison v. Haire, 29 Mich. 207, where in a suit upon a replevin bond, which was expressly counted upon in the declaration, and the execution of which was not denied under oath, the defendants and appellants assigned as error the admission of evidence to establish the execution of the bond. And it was held that, by omitting to question the execution of the bond, the defendants admitted it, and by so much narrowed the issue; that, for the purpose of the trial, this admission conclusively established the execution and delivery of the bond; and that the outside .facts which were gone into, as to the way in which the paper was really executed, did not impair or overreach the effect of the admission, or work any legal prejudice to the defendants.
      8. Lobdell v. Bank, 33 Mich. 408, where suit was brought against the makers and indorsers of a promissory note, the execution of which, or of the indorsements, was not denied under oath. The makers were copartners, and the note purported to be executed in the firm name. And it was held that, under the plea of the general issue, each defendant thereby admitted that he signed the note as alleged in the declaration, and also that it was executed by the parties declared against; that no proof of the copartnership of the makers was necessary, as the admission of the execution of the note was an admission that it was executed by .the defendants (makers) by the name and description alleged in the declaration.
      9. Curran v. Rogers, 35 Mich. 221, where one member of a firm, in the presence of the other, signed in the firm name a contract for the purchase of standing timber. The contract also provided for the refusal of the land for a given time at a stated price. Within the term of the option, a notice in the firm name, signed by the same partner who had signed the contract, that the firm had concluded to buy the land, was served on the vendor. The firm afterwards took possession, and exercised and asserted acts of ownership beyond what related to the timber. The vendor sued for breach of the contract, and the partner who did not sign the contract sought to avoid it as invalid on the ground that his co-partner was not authorized to act for the firm. And it was held that the plea of the general issue, which alone was pleaded, admitted the execution of the contract and notice, which were set out verbatim in the declaration, and alleged to have been jointly executed.
      10. Freeman v. Ellison, 37 Mich. 459, where plaintiff declared specially upon an alleged joint note for $500, made by the three defendants, two of whom signed as copartners, and also upon the common counts, with a copy of the note attached, in which it appeared that the third defendant signed on the back, and the other defendants as makers on the face, of the note. The third defendant pleaded the general i§sue, without affidavit of denial, but accompanied by a notice purporting, in brief, to rest on the defense that the note was made and delivered to the plaintiff as a complete obligation; that he indorsed it, without any consideration, at plaintiff’s request; and that no steps were taken to notify him of its non-payment. The other defendants suffered judgment to go by default. Upon the trial, after the introduction of the note, the third defendant was excluded from showing that the indorsement was made by him after the original note had become operative, the plaintiff claiming that the rule precluded any inquiry into the date of delivery, or the circumstances of the signing, as-bearing upon any defenses dependent on time in any way. And if was held:
      a — That there is no authority for any such construction of the rule; that, while a plaintiff who produces in court an instrument corresponding to the one set forth in his declaration is exempted from proving its execution, the actual time of delivery may involve questions which it would be absurd to hold foreclosed by any such assumption; that if a note -is dated back in order to include usurious interest, and that defense is set up, it would hardly be regarded as bearing on the question of execution; that execution can only refer to the actual making and delivery, and cannot involve other matters without enlarging its meaning beyond reason; that the only object of the rule is to enable a plaintiff to make out a prima facie, not a conclusive, case, and it cannot preclude a defendant from introducing any defense on the merits which does not contradict the execution of the instrument introduced in evidence.
      b — That the declaration with the common counts, to which a copy of the note was attached, presented the note with all of the signatures upon it, and it was offered generally, and not under the special count; that, had there been no special count, it could not be pretended that the note itself indicated of necessity any contemporaneous joint liability, the existence of which would depend entirely upon the date of the indorsement; that the special count did not describe the note by its form, but only by its legal effect; that the production without objection of the note, which was admissible under the common counts, whether indorsed contemporaneously or not, could not be regarded as precluding objections to its accordance with the special count, and it could not be claimed that on its face it was any more consistent with a contemporaneous than with a subsequent execution by the third defendant.
      11. McMillen v. Beach, 38 Mich. 397, where, after the defendant had appealed from a justice's judgment, the plaintiff filed a new declaration, differing from the one filed with the justice only in that there was appended thereto a copy of the note sued upon. It did not appear that this amended declaration was ever served on the defendant or his attorney, or broitght to the attention of' either until the case was on trial. The plaintiff offered the note in evidence without making any proof of its execution, and it. was admitted over defendant’s objection. And it was held that the rule is one in furtherance of justice, and to save the necessity of proof where the defendant declines to dispute the-execution of the contract on oath when full opportunity is allowed him for the purpose; and that to apply it in a case like the one-in question would be subversive of justice, instead of being in furtherance of it.
      12. Jacobson v. Miller, 41 Mich. 90, 95, holding that where, in a-, suit to recover rents reserved in a written lease, the execution of the lease is not denied under the rule, the question of its execution is left wholly outside the issue made and actually passed upon, and the defendant will not be precluded, by the recovery of a judgment in favor of the plaintiff, from denying the execution of the lease in a second suit brought to recover rents claimed to have accrued thereon subsequently.
      13. Insurance Co. v. McClellan, 43 Mich. 564, holding that the defense that the note - of a married woman was not given on such a consideration as binds her is not waived by her failure to file an affidavit under the rule denying the execution of the note.
      14. Montross v. Insurance Co., 49 Mich. 477, holding that where in a suit upon an insurance policy, which the plaintiff alleges has been renewed, the declaration fails to set forth a written renewal, the plea of the general issue is sufficient to put plaintiff to proof of the execution of the renewal.
      15. Simon v. Insurance Co., 58 Mich. 278, holding that the averment in a declaration on an insurance policy, that the policy was made and issued to the plaintiff as described, is admitted if not denied by an affidavit filed with the plea, and that questions arising out of an alleged mistake in the name of the insured, or relating to the ownership of the policy, or the mode of its procurement, are not open to consideration.

        16. Lorscher v. Knights of Honor, 72 Mich. 317, holding that where, in a suit on a certificate issued by a benefit association, the declaration avers that there was duly prepared a paper, in the usual form, assuring to the member and to the plaintiff the benefit sued for on the death of the member, which averment is not denied by the defendant under the rule, the execution of the certificate will be deemed to be admitted for the purposes of the trial, which admission will support a verdict in favor of the plaintiff, although the certificate is not introduced in evidence.
      17. Towle v. Dunham, 76 Mich. 251, holding that, while the neglect of defendants, sought to be charged as copartners, to deny the execution of the note sued upon, purporting to be signed by one partner in the firm name, admits the genuineness of such firm signature and the authority of the partner to affix the same (citing Danaher v. Hitchcock, 34 Mich. 516), it does not admit that the firm received a consideration for such promise, or preclude the defendants from showing the fraud practiced upon them in the use made of the firm paper.
      18. Brewing Co. v. McKittrick, 86 Mich. 191, holding that in a suit by the payee in a judgment note, commenced by declaration, to which a copy of the note is annexed, with a notice that it •constitutes the plaintiff’s sole cause of action, the execution of the note need not be proved unless denied under oath.
      19. Dewey v. Railway Co., 91 Mich. 351, holding that the failure of a railroad company to deny the execution of a note purporting -.to have been signed by the company by its auditor is an admission that the note was so signed; but whether the authority of the ¡auditor to execute the note is also admitted, quaere, the jury having found that he had such authority.
      20. Inglish v. Ayer, 92 Mich. 370, holding that by pleading the general issue, and failing to deny under oath the execution of a contract set forth in the declaration, its execution, as also the authority of the agent by whom the defendant’s name purports to have been signed to the contract, is admitted.
      21. Hemminger v. Western Assurance Co., 95 Mich. 355, where in a suit upon a contract with the defendant to recover whatever was worth saving from a sunken vessel, in consideration of one-half of the net amount realized by defendant from the sale of the articles recovered, the contract was set forth in full in the declaration, and its execution was not denied under oath. And it was held that proof of the execution of the instrument was therefore unnecessary.

   Hooker, J.

The plaintiff having appointed defendant Howell its general agent, a contract was executed between them, and a bond, signed by Howell as principal and the other defendants as sureties, was delivered to the plaintiff, upon which bond this action was brought, a copy of the bond being served with the declaration. The plea was the general issue, and no affidavit denying the execution of the bond was filed under Circuit Court Rule No. 79. Hpon the trial it appeared that the parties to the contract had dealings under it, and that advances were made to Howell by the company, commencing in January, 1890, and continuing to March, 1891, and there was evidence tending to show a balance due to the plaintiff under said contract. The defendants were allowed to introduce the evidence of one of their number to the effect that he executed the bond some time in March, 1890, and testimony tending to show that the bond was not accepted by the company until that time. They were also permitted to give evidence tending to show that, during the period mentioned, there was a time when Howell associated himself with one Clark in the business, and that a new contract was made with the plaintiff, under which they worked, and which superseded the contract in question. This was disputed, and Howell not only did not produce such contract, but said, on re-direct examination by plaintiff’s counsel, that the arrangement between himself and Clark was' private, and not between them and the plaintiff, and that the amount of business done by them was small, and kept entirely separate; that “ my account was kept entirely separate from Mr. Clark’s;” that “that was a private arrangement between Mr. Clark and myself, and not between Mr. Clark and the company;” that “the contract was from June, 1890, to the end of the year, but it did not affect the old contract.”

The court directed a verdict for the defendants, holding:

1. That there was no liability for dealings before the delivery of the bond, which he found to be in March.

2. That “ the original agreement was superseded in June by a fresh agreement, made with Mr. Howell and Mr. Clark jointly, and, when Mr. Howell himself resumed business under the original contract in September, the proof fails to disclose how much he collected, and how much he held for his own purposes, for the period commencing with September and continuing to March 4, 1891, and there is no way on the basis of the proofs of eliminating the months of June and July, and leaving the others to stand separately.”

3. That, as against the sureties, no proofs in the case disclosed the amount due by the defendants to the plaintiff.

The court said that, if counsel could agree upon the . amount due from the defendant Howell, a judgment might be rendered against him, but his counsel declined, saying that they “ objected to any judgment against Howell, because there was no way of ascertaining the amount due at that stage of the case.”

The trial judge was in error in permitting evidence in contradiction of the writing. Under Circuit Court Rule No. 79, the plaintiff qould not be put to proof of the execution of the instrument or the handwriting of the defendants, such execution not being denied by affidavit. It was as though admitted that' the defendants executed and delivered the writing according to its terms. Jenkinson v. Monroe Bros. & Co., 71 Mich. 630; Inglish v. Ayer, 92 Id. 370; People v. Johr, 22 Id. 461. Furthermore, the bond was an undertaking to “pay or hand over all moneys belonging to said company, which shall at any time be received by him or for which he shall be liable, whether the same shall be or shall have been received by him personally and solely, or hereafter may owe said company, either on account of advances to him or otherwise, and shall faithfully discharge the duties as said agent,” and by its terms covered amounts received as such agent from the date of his appointment, if afterwards due and owing to the company.

We think, also, that it was not for the court to determine that the contract was superseded or suspended, the fact being disputed. It should have been left to the jury to say whether it was or not.

Neither could the court properly deny plaintiff the right to a verdict upon the ground that the amount was in dispute. There was evidence tending to show that Howell had received some items, at least, and it was the province of the jury to say how many and what items were shown to have been due to plaintiff.

Other allegations of error appear, which we think it unnecessary to discuss.

The judgment will be reversed, and a new trial ordered.

The other Justices concurred.