author: McGrath, 0. J.

text:
    Thomas B. Goodwillie et al. v. The City of Detroit.

      Municipal corporations — Public improvements — Assessments—Preliminary estimate — Paving—Power of council — Estoppel.
    1. The charter of the city of Detroit requires the common council, before proceeding with any public improvement, except the opening of public streets, to secure from the board of public works a detailed estimate of the cost of the proposed improvement. Under the charter, plans and specifications for the various kinds of pavement are prepared in advance by the board of public works, and approved by the council. The paving of a certain street being under consideration, its estimated cost in gross was reported by the board of public works to the council, and, without any more particular estimate, its paving was ordered. And, in a suit to enjoin the collection of the paving assessment, it is held that the question of the cost of the proposed pavement would naturally be considered in detail upon the preparation by the board of public works, and approval by the council, of the plans and specifications therefor; that the duty of furnishing the estimate of cost is imposed upon the board of public works; that the council called upon the board for such estimate; that, an estimate having been furnished, and no further particulars having been called for, it must be assumed that the information received was sufficiently specific to enable the council to act intelligently.

      2. The charter provides that the board of public works shall establish a system of sewers for the entire city, and cause to be designated the streets through which the same are to be-constructed; that no street shall be paved until the sewer to be constructed through it shall be completed so far as the pavement is to extend: “ Provided, that all sewers, water-pipes, gas pipes, and all connections be made and completed at least one year before such paving is ordered to be done.” As respects water and gas pipes and connections, neither the board of public works nor the council has authority to lay either. The water board has exclusive management and control of laying water pipes and connections, and the same are laid in its discretion, and gas is supplied by private corporations owning and managing the entire plant. The water board is empowered to lay pipes in the streets, and the consent of neither the council nor the board of public works is required, nor is there any provision in the charter enabling the council or the board of public works to direct or compel the laying of water pipes by the water board. And it is held that; the proviso, so far as it relates 'to water and gas pipes and their connections, is inconsistent with the proper exercise of the general powers respecting street improvements conferred upon the common council, and void.
    8. Section 188 of the charter (compilation of 1893) provides that “ the proceeds of each special assessment levied for the grading or paving of aDy street or alley shall become part of the street-paving fund, and be credited therein to the account of the specific improvement for which the assessment was made: Provided, that the common council shall not, in any one year, enter into contracts for the grading and paving of streets, alleys, and public places, the cost of which will exceed in the aggregate 8200,000, except upon the petition of the holders of the larger portion of the real estate directly abutting upon the portions of the street or alley proposed to be improved.” And it is held that said section relates to such paving as might be done upon the petition of abutting owners; that'the charter contains no provision for repaving upon petition of abutting owners or others; that, in view of the language used, and of the limitations contained in other sections upon the power of the council to raise money by general taxation for other paving, the limitation in section 188 must be held to be for the benefit of persons liable to special assessment, and to refer to contracts for paving, the cost of which is to be made by such special assessment.
    4. In a suit to restrain the collection of a paving assessment, it appeared that a portion, at least, of the complainants, before the letting of the paving contract, filed with the common council a remonstrance against the paving of the street, placing their objection solely upon the ground of the “depression in business,” and asking that the paving be deferred until the next season; and that all of the objections made in the bill were available when the remonstrance was filed. And it is held that the relief asked for ought to be denied upon the ground that said complainants, notwithstanding their knowledge of the fact that the council was proceeding in the matter, stood by until the pavement was completed, the bonds probably issued, and then joined in a bill .to set aside the assessment; citing Byram v. City of Detroit, 50 Mich. 56; Dundbom v. City of Manistee, 93 Id. 170.
    Appeal from Wayne. (Donovan, J.)
    Argued October 23, 1894.
    Decided December 22, 1894.
    Bill to enjoin the collection of a paving assessment. Defendant appeals.
    Decree reversed, and bill dismissed.
    The facts are stated in the opinion.

      Brooke & Spalding, for complainants.

      John J. Speed, for defendant.
   McGrath, 0. J.

The bill in this case is filed to enjoin the collection of a paving assessment. The case was heard on bill and answer. It is alleged that the proceedings are invalid—

“1. Because the board of public works never furnished the common council with the detailed estimate of cost of pavement required by the charter.

“2. Because the laying of water and gas pipes in the portion of the street paved was not completed a full year before the pavement was ordered, as the charter requires, but, on the contrary, the city laid the water main in the street immediately before the laying of the pavement.

“3. Because, by entering into this paving contract, the council exceeded the charter limitation upon the aggregate cost of paving contracts entered into in one year without the petition of the owners of abutting property.”

Compiler’s section 320 of the charter of the city provides that, when any public improvement is proposed, the common council, before proceeding with the same, shall refer the matter to the board of public works, which shall forthwith examine it, and report thereon to the council, giving detailed estimates of the costs of the improvement, and making such recommendation as it may deem expedient. An estimate of the cost in gross was reported to the common council. The bill does not allege that a detailed estimate was not actually made by the board. It does, however, allege that no other estimate was reported, to the council. In this respect only does the present case differ from the case of Cuming v. City of Grand Rapids, 46 Mich. 157, 158. The charter of Grand Eapids provided that, when the council should decide that any public work was a necessary improvement, the board of public works should determine as to the particular kind and quantity of materials to be used therefor, and estimate the probable cost and expense of such work, and of the material to be used, in detail, and cause to be prepared, so far as necessary, plans and specifications for such work, and report its estimate to the common council. Mr. Justice Cooley, speaking for the Oourt in that case, says:

“The board of public works must undoubtedly make a detailed estimate, but there is much reason for contending that if only the sum total is reported to the council, and that body sees fit to act upon it, the objection cannot be taken afterwards. The estimate is for the information of the council, to enable that body to determine how much money shall be raised; and if they have the sum total, and act upon it without calling for further particulars, it may well be urged that the question is precluded.”

Under the charter provision in that case, plans and specifications were prepared by the board of public works for each particular street, as its improvement was contemplated, while, under defendant's charter, plans and specifications for the various kinds of pavement are prepared in advance by the board of public works, and approved by the common council. The question of the ■cost would naturally be considered in detail upon the preparation and approval of such plans and specifications. The duty of furnishing the estimate is imposed upon the board of public works; the council called upon the board for such estimate; and an estimate, having been furnished, -and no further particulars having been called for, it must be assumed that the information was sufficiently specific to enable the council to act intelligently. In Butler v. City of Detroit, 43 Mich. 552, the board of public works made no report as to the expediency of the proposed improvement, nor did they report any estimate of the cost. In Mills v. City of Detroit, 95 Mich. 422, the board reported no estimate whatever as to the cost.

As to the second objection, complainants rely upon section 314, which is as follows:

“They shall establish a system of sewers for the entire ■city, and cause to be designated on said plats the streets ( through which the same are to be constructed; and no ’.street shall be paved until the sewer to be constructed through the same shall be completed so far as the pavement is to extend: Provided, that all sewers, water-pipes, .gas pipes, and all connections be made and completed at least one year before such paving is ordered to be done."

The section is section 6 of chapter 15, relating to the hoard of public works. Respecting water and gas pipes .and connections, neither the board of public works nor the council has the authority to lay either. The water board has exclusive management and control of laying water pipes and connections, and the same are laid in its ■discretion, and gas is supplied by private corporations owning and managing the entire plant. The water board is •empowered to lay pipes in the streets, and the consent of neither the council nor the board of public works is required, nor is there any provision enabling the council or board of public works to direct or compel the laying of water pipes by the water board. Water connections are usually made at the expense of the consumer, and under the rule laid down in Jones v. Water Commissioners, 34 Mich. 273, the expense of these connections cannot bo made a charge upon the abutting property in advance of their use. However, these connections are made under rules formulated by the water commissioners. The answer - avers that the laying of the water pipes in the street in question was begun after the confirmation of the contract for paving, and was done by the board of water commissioners, without any actual notice to or knowledge of defendant or the board of public works. When the contract was let, there was no charter obstacle to the improvement. It certainly was not the intention that subsequent action by the water board would prevent the improvement, involve the city in litigation with respect to its contract, or, invalidate the assessment. The section referred to prohibits pavement until the sewers contemplated by the plan adopted shall have been completed, and then specifies that they shall be completed at least one year before pavement, but it does not prohibit paving until the water-pipes are laid. This section, so far as it relates to sewers, is consistent with the proper exercise by the common council of its powers. So far, however, as it relates to water or gas pipes or connections, the council has no authority over the subjects, except, in the case of gas pipes, to refuse permission for laying the same. The necessity for a pavement may not depend upon the presence of consumers of' water. Large belts of unimproved and unoccupied property often divide thickly-settled districts, which are supplied with water; and for convenience, and police and fire protection, it frequently becomes necessary to pave streets leading from one of these districts to the other in advance of any demand for water or gas in tbe unsettled territory. In view of these conditions, the power is given to the common council to order the improvement of streets in the absence of any petition therefor. Again, there is no rule governing the number of water or gas connections which may be needed upon a given frontage. That matter depends upon the number of habitations, rather than the number of lots. Action by the common council, in response to the demands of the public, cannot be made dependent upon the discretionary action of the water board, which is prompted by other exigencies, nor can the action of the council be made to hinge upon individual demands for water connections. The proviso, so far as it relates to water and gas pipes and their connections, must be held to be inconsistent with the proper exercise of the general powers respecting street improvements conferred upon the common council.

In support of the third objection, complainants rely upon section 188 of the charter, which is section 6 of chapter 11, relating to taxation and finance. That section provides that—

“'The proceeds of each special assessment levied for the grading or paving of any street or alley shall become part of the street-paving fund, and be credited therein to the account of the specific improvement for which the assessment was made: Provided, that the common council shall not, in any one year, enter into contracts for the grading and paving of streets-, alleys, and public places, the cost of which will exceed in the aggregate $200,000, except upon the petition of the holders of the larger portion of the real estate directly abutting upon the portions of the street or alley proposed to be improved."

Section 121 of the charter confers upon the council power to pave, repair, and otherwise improve streets, and to provide for paying the cost thereof by assessment upon abutting property: “Provided, that the costs and expenses ■of all repaving and repairing of streets * * * shall be paid out of the repairing fund, created and raised for such purpose.” Section 217 provides that the cost of paving within the lines of the intersection of cross streets, and .also the cost of the cross-walks, shall be paid out of the general road fund, and the cost of all repaving out of the repaving fund. Section 224 provides for the issue of bonds for the cost of original paving, as estimated and assessed, which are made payable out of the street-paving fund. Section 1 of chapter 11, above referred to (compiler’s section 183), divides the revenues and moneys of the corporation into different funds. Subdivision 7 provides for a general road fund, to defray the expenses of repairing paved streets and alleys, and of grading, paving, and improving the highways, streets, and alleys of said city in front of or adjacent to the property of the corporation, and to defray the expenses of constructing and repairing cross-walks in the several wards of the city. Section 2 of the same chapter (compiler’s section 184) empowers the council to levy, assess, and collect taxes, not exceeding 1 per cent., in order to defray the expenses for which the general fund, contingent fund, fire commission fund, poor fund, general road, fund, and recorder’s court fund are created. The charter contains no provision for the creation of any other fund out of which the cost of repaving or intersections may be paid. There is no such fund as a repaving fund, except as section 121 makes the general road fund such fund. There is no provision for raising money for the street-paving fund, except by assessment.

It will be observed that section 184 limits the amount which may be raised by taxation for the payment of the cost of repaving and intersections. Section 188 relates to the proceeds of special assessments levied for paving, and to paving the cost of which is payable from the street-paving fund. It relates to such paving as might be done upon the petition of abutting owners. The charter contains no provision for repaving upon petition of abutting owners or others. Clearly, in view of this language, and of the limitation contained in the other sections upon the power of the council to raise money by general taxation for other paving, the limitation in this section is for the benefit of persons liable to special assessment, and refers to contracts for paving, the cost of which is to be made by such special assessment. The history of this section, and of the legislation on the subject of paving, is referred to, but from an examination thereof it will appear that originally the entire cost of paving and repaving was paid by the abutting owner. By subsequent legislation the cost of intersections, cross-walks, and repavement has been made payable from another fund, and from the proceeds of the general tax levy. The office of the limitation, as it originally appeared, was to protect abutting owners liable to assessment. The contention of the complainants is that the language shall be extended to embrace paving the cost of which is paid for by general taxation, and out of other funds, the amount of which is limited by the provisions relating to such funds. The fact that the limit was increased from $50,000 in 1857 to $200,000 in 1889, in a city, the area as well as the population of which had in the meantime vastly increased, does not necessarily tend to support the contention.

There is further ground, however, upon which the relief prayed for should be denied, at least as to those of the complainants who, before the letting of the contract for paving, filed with the common council a remonstrance against the paving of the street. The parties remonstrating placed their objection solely upon the ground of “the depression in business,” and asked that the paving be deferred until the next season. All the objections now made were available at the time. Notwithstanding their knowledge of the fact that the council was proceeding in the matter, they stand by until the pavement is completed, the bonds prpbably issued, and then join in a bill to set aside the assessment. Byram v. City of Detroit, 50 Mich. 56; Lundbom v. City of Manistee, 93 Id. 170.

The decree of the court below is reversed, and the bill dismissed, with costs to defendant.

The other Justices concurred.

       These cases, together with Erie v. Brady, 150 Penn. St. 462, were cited by complainants’ counsel in support of their contention.


source: Caselaw Access Project

author: McGrath, C. J.

license: Public Domain

text:
    Mary Ann Moore v. The City of Detroit and George E. Currie.

      Municipal corporations — Public improvements.

    This case is ruled by Goodwillie v. City of Detroit, ante, 283.
    Appeal from Wayne. (Donovan, J.)
    Argued October 31, 1894.
    Decided December 22, 1894.
    Bill to enjoin the collection of , a paving assessment. Defendant city of Detroit appeals.
    Decree reversed,’ and bill dismissed.
    The facts are stated in Goodwillie v. City of Detroit, ante, 283.

      Washington I. Robinson (Edwin F. Gonely and Orla B. Taylor, of counsel), for complainant.

      John J. Speed, for appellant.
   McGrath, C. J.

Complainant files her bill to restrain the collection of an assessment for paving a street- upon the ground that the water-pipes had not been laid in said street at least one year before the pavement was ordered. The fact is that, after the pavement had been determined upon and ordered by the council, — but whether before or after the letting of the contract does not appear, — the board of water commissioners laid the water pipes in the street. The case is ruled by Goodwillie v. City of Detroit, ante, 283.

The decree of the court below is reversed, and the bill dismissed, with costs to defendant.

The other Justices concurred.


author: Long, J.

text:
    William N. Bartlett v. Edward Bartlett.

      ;Statute of frauds — Parol agreement for sale of lands — Part performdnce — Summary proceedings.

    In summary proceedings to recover the possession of lands, instituted by the holder of the legal title, the defendant cannot set up as a defense a verbal agreement made by him with the owner for the purchase of the land, coupled with evidence of part performance on his part, his remedy, if he has any, being in equity.
    Error to Jackson. (Peck, J.)
    Argued October 24, 1894.
    Decided December 22, 1894.
    Summary proceedings to recover the possession of land. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      L. B. Tompkins (Herbert H. Winsor, of counsel), for appellant.

      Barkworth & Blair, for complainant.
   Long, J.

This action was commenced before a circuit court commissioner, under the provisions of How. Stat. § 8395, relative to summary proceedings for the recovery of lands. The trial resulted in favor of complainant. The cause was appealed to the circuit, and, after a full hearing, that court directed a verdict in favor of complainant.

The defense to the action was that, prior to the year 1881, the complainant owned the land in controversy. It consisted of a farm of 315 acres. The defendant, who is the son of the complainant, claims that during that year he was living with his father upon the farm, and at that time announced his intention of leaving and going west, when his father made the following arrangement with him; That he (the defendant) was to take the whole of the farm and work it, to have charge of and occupy the same, improve and fix it up, clear off certain land which was not cleared,, keep the stone drawn off, and furnish the complainant and his wife a home and a comfortable support on the-farm; that the expense of running t;he farm was to be-first paid off the farm before anything else; that the families of both were to have their living and support and such reasonable amount of money as was necessary forth eir personal expenses out of the proceeds of the farm;, that the debts were then to be paid, consisting of a mortgage of $3,500, then on the north 96 acres; that, when such debts were paid, complainant was to execute to defendant a good and sufficient deed of the north 96 acres of the farm, and that the defendant was to have the possession of said farm until such debts were fully paid; that this indebtedness was in the year'1883, by mutual consent, increased $1,000, to raise money to build a barn; that the-barn was built, but not upon the 96 acres, at a cost of' $1,350. The defendant went into possession of the farm under his claimed agreement; and he claims to have carried out, so far as he could, the terms of it, when, on Decernber 30, 1892, the complainant served him with a three months' written notice to quit. Claiming rights under this contract in the premises, he refused to surrender possession; and on September 1, 1893, this proceeding was commenced.

The court below, in directing the verdict in favor of complainant, stated that this agreement, as claimed by defendant, was too indefinite and uncertain to be enforced. This was the point upon which the case was ruled below, and the brief of counsel for defendant is devoted almost entirely to that subject. We think that question has no bearing upon the rights of the parties, as such contract cannot be set up as a defense to this action. The complainant, on December 30, 1892, gave the defendant a three months' written notice to quit, and, in the following September, commenced this proceeding. The legal title is in complainant. He has never made any agreement in writing to convey. The whole defense rests upon the oral contract set forth. It is claimed that the possession of the premises by the defendant under it, and its part performance by him, may be shown in this action as a complete defense. We think not. How. Stat. § 6181, provides:

“ Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof, be in writing, and signed by the party by whom the lease or sale is to be made, or by some per.son thereunto by him lawfully authorized by writing.''

But it is further provided in section 6183 that—

“Nothing in this chapter contained shall be construed to abridge the powers of the court of chancery to compel the specific performance of agreements in cases of part performance of such agreements."

By the terms of this statute, all contracts for the sale of lands or any interest in lands are void unless in writing, and signed by the party by whom the sale is to be made. or by some person thereunto by him lawfully authorized in writing. In an action-at law, an oral contract for such sale cannot be set up either as a ground of action or as a ■defense. In a note to Dwight v. Cutler, 3 Mich. 566, it is said:

“This language renders the oral contract as unavailable as a ground of defense as it is as a ground of action/'’

It is only by virtue of section 6183 that courts of chancery have compelled specific performance of such oral contracts; and it is held that even in a court of chancery, to authorize a decree for specific performance of a parol contract to convey, etc., there must be (1) a contract, the terms of which are so clear and complete as to allow of no reasonable doubt respecting the enforcement of it according to the understanding of the parties; (2) such acts of part performance as, according to equitable principles, will -justify its employment; (3) payment of purchase price. Kinyon v. Young, 44 Mich. 339. Though it is held that, where possession of the land has been given and ■ taken in pursuance of a verbal agreement, the part performance is sufficient to authorize a specific performance (Davis v. Strobridge, 44 Mich. 157), and it has been repeatedly held that giving and taking possession in pursuance of a verbal contract of sale, and making valuable improvements in reliance thereon, will constitute part performance and an equitable ground for specific performance (Lamb v. Hinman, 46 Mich. 112), yet all these cases where specific performance has been sought have arisen in equity, and no case can be found under such a statute as ours where it has been held that in an action at law such oral agreement can be set up as a defense against the legal title to defeat recovery of possession. We need not decide in this case what interpretation would be given to the oral contract, or the right of defendant to have it specific•ally enforced, if, in the proper forum, enforcement should be sought. All we hold is that in this action it cannot ■be set up as a defense.

Judgment is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    In the Matter of the Appeal of Sarah C. Nuckols from the Allowance of the Final Account of Charles E. Samson, Administrator of the Estate of Cecilia A. Underhill, Deceased.

      Executors and administrators — Compensation—Claims against estate.

    .1. A charge by an administrator of $5 per day for 9 days, for time and expenses, and on some occasions for the use of a horse' and buggy, in looking after the estate, which consisted principally of real property situated some miles from his residence, is not an immoderate charge, it appearing that the services charged for covered a period of over ten months.
    42. The allowance to an administrator of §150 as a gross sum, without a particular specification of the items, for time and services, covering a period of over three years, in obtaining possession of real estate, collecting rents, renting farms, etc., is not without precedent, a similar charge having been allowed in Loomis v. Armstrong, 63 Mich. 355; and in Wisner v. Mabley Estate, 70 Mich. 271, although the propriety of specific charges is mentioned, an allowance in gross was made, based upon the testimony.
    43. Where the trial court finds as a fact that a claim against the estate of a deceased person was duly allowed by the commissioners on claims, it will be presumed that he also found that the claim was properly presented.

      Error to Washtenaw. (Kinne, J.)
    Submitted on briefs October 24, 1894.
    Decided December 22, 1894.
    Appeal from the allowance of the final account of an administrator. Sarah C. Nuckols, one of the heirs of the-deceased, brings error.
    Affirmed.
    The facts are stated in. the opinion.

      Barlcworth é Blair, for appellant.

      Charles R. Whitman, for the administrator.
   Hooker, J.

The questions raised by this r.ecord involve-the reasonableness of certain charges for time spent in the-management and settlement of an estate, consisting principally of real property situated some miles from the residence of the administrator. The items objected to consist-of jper diem charges for time spent, including the use of' horse and vehicle, amounting to $45, a charge of $150 for time and services in getting possession of real estate, collecting rents, renting farms, etc., and a charge of $279.15-allowed by commissioners. These items were allowed by the probate judge, whose action was approved by the circuit judge; and, so far as the first .two are concerned, we see-no reason to disagree with them. Five dollars a day for time and team for the limited number of days during the-period covered by these services does not seem immoderate. The items of expenditure forming a part of the account-show that the affairs of the estate were a matter of everyday consideration, for which no. other specific charge was-made. The evidence shows the nature of the services, and we think the charges are sufficiently specific.

The allowance of $150 as a gross sum, without particular specification of the items, is not without precedent. Such a charge was allowed in Loomis v. Armstrong, 63 Mich. 355; and in the case of Wisner v. Mabley Estate, 70 Mich. 271, cited by counsel, although the propriety of specific charges is mentioned, this Court made an allowance in gross based upon the testimony.

The item of $279.15 is attacked upon two grounds:

1. It is said to be invalid as an allowance by the commissioners, because it was not seasonably presented, and becartse no sworn testimony was offered before the commissioners in support of it.

2. It contained an item of $150 for a horse, which died while the appellee was on a trip for the intestate, previous, to her death.

The circuit judge found that this item ($279.15) was duly allowed by the comnlissioners. It appears from the-report of the commissioners, dated April 10, 1891, that an account was allowed amounting to $279.15. The same-report shows that public notice was given that the commissioners would meet for the purpose of receiving, examining, and allowing claims on September 26 and December-26, 1890, and that they did so meet, etc. The commissioners took the oath August 30, 1890. Upon' the trial at. the circuit, counsel questioned the validity of the allowance, contending that the evidence showed that the claim could not have been presented upon either day set for the presentation of claims. The appellee testified that.he presented it between the dates mentioned for the presentation of claims. Two copies of the account appear in the record, and appellant's contention seems to be based upon the fact-that one of them (which she claims that the appellee testified was the one presented) has at the head the following: “Ypsilanti, January, 1891." It has, however, a. verification dated March 5, 1890. The other copy is dated 3-29-1890, and is indorsed on back: ífAcct. C. E. Samson as allowed by commissioners." From these papers and the testimony of the appellee, the trial court found the fact that the claim was duly allowed by the commissioners. We must infer that he found that the claim was properly presented and allowed.

Upon the other point it is enough to say that the claim for the- horse was one of which the commissioners had jurisdiction. The circuit judge appears to have been satisfied that the claim was not a fraudulent one, and that the allowance was not collusive.

Again, the statement that there was no evidence before the commissioners is not borne out by the record. The ■only testimony upon the subject that our attention is ■called to is that of the appellee, and he states that he does not remember whether any one was sworn or not in his ■behalf. Consent to this allowance by two of the heirs was filed with the commissioners. Unless we are to infer, from the fact that the appellee says he does not remember that any testimony was taken, that no evidence was given in support of the claim, we must say with the circuit ■court that the subject was settled by the commissioners. He testified that it was possible that he was sworn, but he did not remember.

The order of the circuit court will be affirmed.

The other Justices concurred.

       The period covered by these items extended from May 5, 1890, to March 10, 1891, both days inclusive, and they embraced charges-for time spent at time of appointment as special and general administrator; securing notices to creditors to present claims; posting said notices; trips to see a mortgagor, who was holding over after foreclosure; and two trips to Detroit to attend a suit against, the mortgagor, — making in all 9 days.


text:
    Ferdinand Schneewind v. The City of Niles.

      Municipal corporations— Taxation — Limitation.
    1. The word “raised,” as used in a city charter which provides-that the amount that may be voted or raised in any one year under provisions for the levy and collection of taxes and the borrowing of moneys shall not exceed a certain percentage of' the assessed valuation, means “raised by taxation;” citing Board of Supervisors v. Warren, 98 Mich. 146.
    2. Section 80 of the charter of the city of Niles (Act No. 414, Local Acts of 1898) limits the amount of taxes which the council is authorized to levy and collect in any one year to defray the-expenses of the city to' one and one-half per cent, of the valuation of the real and personal property within the limits of' the city, and, after authorizing the voting by the freeholders-of the city of an additional sum by way of tax or loan, provides that the amount that may be voted or raised in any year under-the provisions of the section shall not exceed two per cent, of the assessed valuation of the property in the city, as shown by the last preceding tax roll made therein. And it is held that the aggregate of the loan authorized by the freeholders, and the amount ordered to be assessed by the council in any one year cannot exceed said two per cent.
    Appeal from Berrien. (Buck, J., presiding.)
    Argued October 30, 1894.
    Decided December 22, 1894.
    Bill to enjoin the defendant from issuing or negotiating certain waterworks bonds. Complainant appeals.
    Decree-reversed, and one entered as prayed.
    The facts are stated in the opinion.

      George A. Lambert and Edward Bacon, for complainant.

      William J. Gilbert and George 8. Clapp, for defendant.
   Long, J.

On August 28, 1893, the common council of the city of Niles passed the following resolution;

“ Resolved, that a meeting of the freeholders of the city ■of Niles be called to meet at the common council rooms on September 18, 1893, polls to open at 3 p. m. and close at 8 p. m., to vote upon the following proposition: 'That the city council be authorized to borrow, on the faith and credit of the city of Niles, a sum not exceeding $32,-■000, to be used and expended for the purpose of constructing a new system of waterworks, to be owned and controlled by the city, for the extinguishment of fires and for ■other purposes.”

This resolution was voted upon at the meeting so called, and was by the mayor, who presided, declared carried by •a vote of 200 in favor, and 42 against.

This bill is filed for the purpose of enjoining and restraining the city of Niles, its officers, agents, servants, and attorneys, from issuing, signing, negotiating, or selling any of such bonds of said city in the sum of $32,000, or any part thereof. The complainant is a resident freeholder and tax-payer of the city, and sets out in his bill that such proceedings are void, and that the amount authorized to be raised is in excess of the amount authorized under the ■charter of the city, but that the common council is now about to issue said bonds and sell them to third parties. It is further alleged that the assessed valuation of the property in the city, as shown by the last preceding tax roll, — that is, the tax roll for the year 1893, — is the sum of $1,697,855; that at a meeting of the common Council held on the 19th day of June, 1893, it voted to raise, levy, and collect, by taxation of the property in said city, the amount of 1 per cent, of such valuation, and in pursuance of such vote the common council did thereafter, and before the said 28th day of August, cause such amount of 1 per cent, of said assessed valuation to be duly assessed and levied against such property in said city, and is now collecting such amount of taxes of said property; and that the vote of the -freeholders authorizing the borrowing of said $32,000 is void, as being in excess of the power of such freeholders. Many other reasons are set up in the 'bill why the action of the council and of the freeholders \is void, and why the council should be restrained, but which it will not be necessary to notice, from the view we "take of the principal question. The city answered the >bill, proofs were taken, and the case fully submitted to the court below on pleadings and proofs. The bill was ■dismissed. Complainant appeals.

No questions of fact are raised in reference to this main ■issue; but it is contended that under the charter the coun•cil, by the vote of the freeholders, had power and authority to raise 2 per cent, over and above the amount of the 1 per cent, already voted and raised for other purposes. The only provisions of the charter which, it is claimed, -confer the power, are as follows:

“Sec. 30. The common council shall have power and ■ authority to levy and collect such amount of taxes on all real and personal property within the limits of said city as they may deem necessary to defray the expenses thereof, not to exceed one and one-half per cent, on the valuation 'thereof, exclusive of the cost of collecting the same, in ■ any one year, and shall have power and authority, at any time previous to the collection of the city tax for any one year, to borrow a sum not exceeding one-third of the amount •of taxes levied for city purposes that year, and to pledge the faith and credit of the city therefor; but they shall have no power and authority to levy, assess, or collect any additional tax the same year, nor to contract debts, incur -liabilities, or make expenditures in any one year which shall exceed the revenue for the same year, unless first authorized so to do by a majority vote of the freeholders of said •city at a public meeting thereof, called and conducted as hereinafter provided. Such meeting may be called by the ■common council by a resolution appointing a time and place in said city for holding the same, and setting forth the purpose of the proposed expenditure, the amount proposed. to be raised, and whether by tax or loan. Such resolution shall be passed, and published in one of the newspapers of the city, and copies thereof posted in five -of the most public places in each ward of the city, at least .14 days before the meeting at which the vote is to be taken. The .mayor of the city, or, in his absence, the recorder, shall preside at such meeting, and none but freeholders of' the city shall be allowed to vote. Whenever authorized by a majority vote of a freeholders’ meeting called and conducted as aforesaid, it shall be lawful for the common council to levy, assess, and collect such additional tax, or-to borrow on the faith and credit of said city such sums-of money, as may be determined at such meeting, and for-that purpose to issue the bonds of the city, signed by the mayor and countersigned by the recorder, in such form as • the common council may direct, and payable at such time, and. bearing such interest, not exceeding the rate of seven per cent, per annum, as the common council may determine. Such ■ bonds, when authorized and executed as aforesaid, may be-sold by direction of the common council, but not below their par value: Provided, that not more than two such, meetings may be called in any one year, the second of which shall be called only by a vote of three-fourths of' the members-elect of the common council. The amount, that may be voted or raised in any year under the provisions of this section shall not exceed two per cent, of the ■ assessed valuation of the property in the city, as shown by the last preceding tax roll made therein.”

“Sec. 36. All moneys and taxes raised, loaned, or appropriated for the purposes of any particular fund shall be-paid in and credited to such fund, and shall be applied to-the purposes for which such moneys were raised and received, and to none other; nor shall the moneys belonging; to one fund be transferred to another fund, or be applied to any purpose for which such other fund is constituted,, except when there shall be a surplus in any general fund, at the close of any fiscal year. In such case, the surplus-may be transferred to the sinking fund-, should there be a deficiency in that fund; otherwise the council may apply such surplus as they shall deem proper.”

The classification of the general funds is in section 31 of the charter, the seventh fund being “water fund, for-defraying the expenses of the public water service,” and the eleventh fund being “interest and sinking fund, for-the payment of the public debt of the city and the interest thereon.” The learned court below filed a written, opinion, in which he said:

“A question which, to the mind of the court, presents greater difficulty in its solution than any of those which have so far been discussed, arises from the peculiar phraseology of the concluding portion of section 30 of the city charter,” — quoting from section 30, as above.

The court then continues:

“It appears by the proofs taken in the case that the city council had already voted to raise an amount equal to 1 per cent, of the assessed valuation of the property in the city for defraying the ordinary city expenses, and, if this sum of $32,000 were to be added to the sum raised by taxation, these two sums would amount to considerably more than 2 per cent, of the valuation of the property in the city. The city attorney, who drafted the section of the charter under, consideration, contends that by this language it was intended that there should not be voted or raised by a vote of the freeholders of the city a sum equal to more than 2 per cent, of the taxable property in the city in any one year. I was, however, very strongly impressed cn the argument of this case with the view that the legislative intent must be held to be that no amount which should exceed 2 per cent, of the valuation of the property in the city should be raised by tax or loan in any one year, but on further examination and reflection I am led to doubt the correctness of this view. The fact that the city council could, without a vote of the freeholders, levy a tax equal to one and one-half per cent, of the assessed valuation of the property in the city, certainly lends some support to the theory of counsel for defendant, and after a careful examination of this section I am led to the conclusion that the word ‘or5 in the phrase ‘voted or raised5 should be read as though it were ‘and,5 and that this prohibition was intended to apply only to such sums as should be voted by the freeholders at a public meeting, as provided in those parts of the section immediately preceding the part under consideration.”

If we concede the rule of interpretation of this statute to be 'as liberal as claimed by the trial court, yet we must hold that it is not open to the construction placed upon it. It is plain that there could not be borrowed a greater sum than could be raised in any one year by taxation.' Unless this be so, there can be found no limitation in the charter upon the power of the freeholders. It is evident that it w.as the legislative intent to place a limit upon the amount that the freeholders could vote, as well as upon the amount that the council could vote. The limitation is placed upon the council of one and one-half per cent.,, and in the same section it is provided that “the amount that may be voted or raised in any year under the provisions of this section shall not exceed 2 per cpnt. of the assessed valuation of the property in the city, as shown by the last preceding tax roll made therein.” If, as contended by the court below, the word “or” should be construed as “and,” the evident meaning would then be that the aggregate of all debt and tax to be put on the roll in any year should not exceed the 2 per cent., as it is provided that that must be the limit “under the provisions of this section.” The word “ raised ” means raised by taxation. Board of Supervisors v. Warren, 98 Mich. 146. It seems clear to us that no amount of authorities could make the meaning clearer than the language of the section itself makes it. 3

We are satisfied that the council has no power to issue the bonds provided for, and the decree of the court below must be reversed, and a decree entered here in favor of complainant, as prayed in the bill.

The other Justices concurred.


text:
    Frank F. Sommers v. Wesley A. Reynolds and Henry A. W. Blackburn, Trustees, etc.

      Voluntary associations — Dissolution—Rights of members to club property — Landlord and tenant — Forfeiture of lease.

    1. The members of a voluntary association have the right to the use of its property, according to and for the purposes of the association as shown by its articles, as long as any of the members remain; citing Wilson v. Livingstone, 99 Mich. 594.
    2. Upon the dissolution of a voluntary association, a lease of a hall held by the society belongs to its members.
    ■3. After the dissolution, the members of the society in good standing organized a club, with the intent and purpose of taking the lease, and using and subletting the leased premises, and using the revenue thus obtained, through one of their number, who acted as treasurer, to pay the rent. And it is held that they did not, by such concert of action, lose their joint property in the lease. ,
    4. The lease provided that the hall should be occupied for holding lodge meetings and socials, and that the lessee should not release or assign the lease, or sublet the leased premises, except for society purposes, without written .consent, and contained the usual clause providing for re-entry in case of default in payment of rent or in any of the covenants of the lease. After the formation of the club, the hall was rented to various societies, which occupied it five evenings in the week for lodge meetings, socials, concerts, and dances, and, in addition, a dance was once held in the hall by four members of the club. And, in summary proceedings by the lessor against the lessee to recover possession of the hall, it is held that a forfeiture under the covenants can only be claimed when the hall is sublet (not used) for other than society purposes; that the only use to which it is shown to have been put, that can be said not to fall within that term, was that of the dance held by the four members of the club; that, if that should be technically so held, there is nothing to indicate a subletting for that puipose, but a mere user by those having charge and control of the premises, and who were part owners of the term.
    Error to Wayne. (Carpenter, J.)
    Argued October 31, 1894.
    Decided December 22, 1894.

      Summary proceedings to recover the possession of a hall. Complainant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Edwin F. Oonely and Orla B. Taylor, for appellant.

      George 0. Green (E. F. Bacon, of counsel), for defendants.
   Hooker, J.

The complainant is the owner in fee of premises known as “ Sylvester Hall.” On May 23, 1890, he executed a lease of the same to “W. A. Reynolds and H. A. W. Blackburn, trustees of the Royal Adelphia, Godfrey Conclave No. 131, parties of the second part.” The foregoing is the only illusion to the Godfrey Conclave, or to a trust, that can be found in the lease. This lease was for the term of five years, “on the terms and conditions hereinafter mentioned, to be occupied for holding lodge meetings and socials.” It contained a provision that the said parties of the second part should not re-lease or assign the lease, or sublet said premises, except for society purposes, without written consent, and also contained the usual clause providing for re-entry in case of default in payment of rent or in any of the covenants of the lease.

Defendants’ brief asserts that the Royal Adelphia was a charitable society, having an existence as a voluntary association, of which Godfrey Conclave 131 was a branch. Nothing indicates that this was not so, and, as the statement appears to be unquestioned, we shall assume that this is true. The testimony shows that the lease was taken by the defendants under an appointment by Royal Adelphia, Godfrey Conclave No. 131, as trustees to rent a hall, and that it was occupied by the Godfrey Conclave for about a year, when the Royal Adelphia ceased to exist. The members of this conclave had anticipated the collapse of the Royal Adelphia, and for a time had withheld the assessments paid by its members from the Eoyal Adelphia, keeping the fund itself.

After the collapse of the Eoyal Adelphia, some members of the society were in favor of keeping up the conclave. Many failed to pay their assessments, however, and ■some witnesses testify that this Godfrey Conclave No. 131 went out of existence towards the last of the year 1890. Blackburn resigned as trustee in October, 1890, but attended a meeting in February, 1891, of the members, when they talked of keeping the society up among themselves. Finally, 12 of the members in good standing of Godfrey Conclave No. 131 undertook to get something out of the lease. In the language of one witness, they “organized a club called the 'Godfrey Conclave’ when the Eoyal Adeljjhia went out of existence, with the intent and purpose of taking the lease." Just what was done in the nature of effecting a new organization does not appear. Suffice it to say that 12 former members of Godfrey Conclave proceeded to use and sublet the hall. The revenue thus cbtained was used to pay the rent, one of their members acting as treasurer. This condition of affairs came to the knowledge of the complainant late in December, 1891, and on the 31st of that month he served a written notice to •quit upon the defendants, “for the reason that the terms and conditions of the lease of said premises had not been fulfilled," and “because said premises had been sublet for ether than society purposes without his written consent." A few days later he accepted rent for the month of January, 1892, and February 2 commenced these proceedings. The court directed a verdict for the defendants, and that is the error complained' of.

Complainant bases his right to a reversal upon two grounds:

1. That the alleged dissolution of Godfrey Conclave No. 131 terminated the lease, inasmuch as it did not, and! under the terms of the lease could not, assign it.

2. That the lease was forfeited by reason of the premises having been sublet for other than society purposes-without complainant's written consent.

If it be conceded that the lease was the property of Godfrey Oonclave No. 131, what was necessary to divest the title? That society was a voluntary association. What-its articles of association were we have no means of knowing; its objects are not shown; but that it procured a hall for its meetings is plain. As long as it existed, it certainly had a title to its lease, and this lease was undoubtedly subject to the payment of any debts that it might have, and these could not be out off by disintegration or voluntary dissolution of the society. There can be no. doubt that the members of a voluntary society have the right to the use of the property, according to and for the purposes of the society as shown by its articles, as long as any members remain. See Wilson v. Livingstone, 99 Mich. 594. Can it be said that they lose their property upon a-voluntary dissolution? May they not sell it or divide it?' Shall we say, because when a member dies, or abandons the, society, his interest lapses in favor of his associates, that, when the remaining members voluntarily disband, the property reverts to its former owner? The contention here is that when this Godfrey Conclave No. 131 went out of existence it abandoned this lease. Again, it is said the Godfrey Conclave then formed was a distinct organization, or person, having no rights to the lease, by assignment or otherwise. We think this cannot be sustained. If it be true that Godfrey Conclave No. 131 still exists, it still has a right to its lease, if it ever had any. If it does not exist, the lease belongs to its members, unless we are to admit the very technical theory that they cannot take it because the conclave was a different entity, and could not transfer or transmit the estate to its constituent parts because the lease did not run to the society, its successors and assigns, — a theory which has no force, for the reason that the title was always in the members, who held jointly, but upon the conditions of their articles. If, at the dissolution of Godfrey Conclave 131, the lease became the property, jointly, of the remaining members, we think they did not lose it by concert of action in using it, although they found it convenient to call themselves by the name of “Godfrey Club." We have no doubt that persons who are associated under the name of “ Godfrey Club " have rights in this property if the original conclave had such rights, which we need not discuss, for the proceeding is based upon that theory.

It remains to inquire whether the lease has been forfeited, or rather whether there was evidence entitling the complainant to go to the jury upon that claim. It appears that the hall was let to various societies, among them the United Friends, the Iron Hall, the Aegis, the Eechabites, and others. It was occupied by these societies five nights in the week, and it was used by these different lodges or societies for socials, concerts, and dances. In addition to these, a dance was once held by four of the members of the Godfrey Conclave. It does not appear that they paid for this privilege, or that the hall was sublet to them for the pm-pose". They simply had the dance. No reason seems apparent for giving to this lease an unduly technical construction, and we do not feel clear that the “ society purposes" mentioned therein might not properly be held to include social dances. But if it is to be limited by the fact that the hall was rented by a society, to be occupied for lodge meetings and socials, still a forfeiture under the covenants can only be claimed when it is sublet (not used) for something other than society purposes. In our opinion, the only use to which this hall is shown to have been putx_ that can be said not to fall within the term “society purposes," was that of the dance held by the four members of Godfrey Conclave; and, if that should be technically so held, there is nothing to indicate a subletting for the pulpóse, but a mere user by those having charge and control of the premises, and part owners of the term. There is no provision in the lease for a forfeiture in case of a misuser by the lessee; it is only in case of a prohibited subletting.

The judgment of the circuit court meets our approval, and it will be affirmed.

The other Justice's concurred.


author: Montgomery, J.

text:
      Maggie Sias v. The Village of Reed City.

      Municipal corporations — Defective sidewalk — Contributory negligence — Damages—Evidence.
    1. The plaintiff in a personal injury case, who at the time of the accident had been engaged for about six months in cooking for a lunch counter at $4 per week, was permitted to testify that, for five or six years previous to the injuiy (which was received early in the month of April), her business háü been that of a pastry cook, and that her wages had been $1 per day, except in the winter time, when she received $5 per week. And it is held that, as the testimony covered the time up to within a very few months of the accident, it was not too remote.
    8. Plaintiff, on a dark and stormy night in April, was injured by stepping into a hole in a defective sidewalk. She testified that she knew of the bad place in the walk; that, on gassing over it earlier in the evening, she spoke of it to two girls who were with her; that on her return she said to the girls, “We will have to look out for that bad place in the walk;” that she was walking on the outside of the walk, and her companions on the inside; that they all walked somewhat rapidly in that way until she stepped into the hole; that she was paying attention to the defect in the walk, watching for it, but reached it sooner than she expected. And it is held that the case is ruled by Lowell v. Township of Watertown, 58 Mich. 568, where it was held that “a person is not necessarily precluded from recovering for an injury caused by a defect in a highway «imply for the reason that he was aware of such defect, but this fact, with all others, is proper to be taken into consideration by the jury in determining whether, under all of the facts and circumstances, he was guilty of such carelessness or negligence without which he would not have been injured.”
    Error to Osceola. (McMahon, J.)
    Submitted on briefs October 31, 1894.
    Decided December 22, 1894.
    Negligence case. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      G. A. Withey, for appellant.

      G. H. Bose, for plaintiff.
   Montgomery, J.

The plaintiff recovered a verdict of $400 for injuries received by stepping into a hole in a defective sidewalk. No question is raised but that the proof showed that the sidewalk was defective, and the appellant raises but two questions. It is claimed, first, that there was error in the admission of testimony bearing upon the question of damages, and, second, that error was committed in refusing to instruct the jury as matter of law that the plaintiff was guilty of contributory negligence.

1. At the time of the injury the plaintiff was engaged in cooking for a lunch counter at Eeed City, at the price of $4 per week. She testified that, for five or six years previous to the injury, her business had been that of a pastry cook, and was asked what wages she had received during that time. This was objected to as too remote. Her answer was that she had received a good share of the time $1 per day, except during the winter, when she received $5 per week. We think this testimony was admissible. Her testimony tended to show that she had been accustomed to receive less wages during the winter time, and it would be manifestly unjust to exclude testimony as to the wages which she had received during other seasons of the year, and, as the testimony brought it down to within a few months of the time of the injury, we think it was not too remote.

%. The plaintiff testified, in substance, that the injury occurred about 9 o’clock in the evening of the 9th of April, 1893. The night was dark and stormy. Plaintiff, with two other ladies, had been to make a call, and she received the injury on the return trip. She knew of the fact that there was a bad place in the walk, and had spoken about it to the young ladies with her on the way over. On their way back it was snowing somewhat, striking them in their faces. The plaintiff again called the attention of the ladies with her to the defective place in the walk, saying: “We will have to look out for that bad place in the walk." It snowed a little harder coming back than on the way over. The plaintiff was walking on the-outside of the walk, and the other two girls on the inner side. They walked somewhat rapidly in that way, without-changing positions, until the plaintiff stepped into the defective place and received the injury. The plaintiff testified:

“It was not so dark but what one could see the G-abel house if he was looking for it. I was paying attention to the defect in the sidewalk as I came back, watching for it; but I got to it sooner than I expected."

Defendant’s counsel strenuously insists that this evidence conclusively showed contributory negligence. But we think the case is ruled by the previous decisions of this Court. Lowell v. Township of Watertown, 58 Mich. 568; Dundas v. City of Lansing, 75 Id. 499; Brezee v. Powers, 80 Id. 172; Graves v. City of Battle Creek, 95 Id. 266. See, also, McKeigue v. City of Janesville, 68 Wis. 50; Kendall v. City of Albia, 73 Iowa, 241; Kelley v. Town of Fond du Lac, 31 Wis. 179. The case of Lowell v. Township of Watertoion is directly in point. Mr. Justice Champlin, speaking for the Court, said:

The defendant’s counsel claim that his [plaintiff’s] knowledge of the defect, and his having it in his mind at the time,- was conclusive evidence of his want of ordinary care in stepping into the very hole he had it in mind to avoid, and that for this reason the case should have been taken from the jury. We cannot accede to this view. A person is not necessarily precluded from recovering for an injury caused by a defect in a highway simply for the reason that he was aware of such defect; but this fact, with all others, is proper to be taken into consideration by the jury in determining whether, under all of the facts and circumstances, he was guilty of such- carelessness or negligence without which he would not have been injured.’’

The judgment will be affirmed, with costs.

The other Justices concurred.


text:
    Michael Davis v. August Marxhausen.
    [See 86 Mich. 281.]

      Libel — Malice—Instructions to jury — Retraction—Damages—Evidence.

    1. A newspaper, the circulation of which was limited to subscribers, published an article stating that a certain person, naming him, and giving the number and street where he resided, had been arrested for larceny. Plaintiff resided at the place designated, but another person bearing the same name had been arrested for the offense mentioned. In the next issue but one of the paper appeared a correction in so far as the residence was concerned. Six days later the publisher received a notice from plaintiff's attorney that he had been retained by him to bring a suit for libel in publishing the article. On the same day an article was published in the newspaper, in which it was stated that the residence of the alleged thief was erroneouly given in the article complained of, and that in the house designated lived a party of the same name, who was a thoroughly honest man, and to whom, on account of the error, an unfortunate injury had been done. And in a suit for libel it is held that it was not conclusively shown by the facts stated that the publication was made for justifiable ends, and that the article was made to point to the plaintiff through a mistake; that it was therefore error to charge the jury that there was no evidence from which improper motives on the part of the defendant could be inferred; citing Post Co, v. McArthur, 16 Mich. 451; Whjlttemore v. Weiss, 33 Id. 353; Association v. Tryon, 42 Id. 549; Bacon v. Railroad Co., 55 Id. 224.
    2. It was competent for the defendant to offer testimony to show the want of actual malice, as that the publication was made through mistake, and that all proper precautions were observed, by which the damages would be reduced to such a sum as would compensate for the injury which must inevitably have resulted; citing Scripps v. Reilly, 88 Mich. 23; Association v. Tryon, 42 Id. 549.
    8. The retractions were not evidence of the circumstances under which the original publication was made, or of its good faith, but proof of the same was admissible in mitigation of damages, their publication having occurred before suit brought, and immediately following the publication of the libel.
    Error to Wayne. (Carpenter, J.)
    Argued November 1, 1894.
    Decided December 22, 1894.
    Case for libel. Plaintiff brings error.
    Reversed.
    The facts are stated in the opinion.

      Sloman, GroesbecJc & Robinson, for appellant.

      Morse Rohnert (John G. Hawley, of counsel), for defendant.
   Montgomery, J.

This case was before the Court at the April term, 1891, and is reported in 86 Mich., at page 281. On the first trial, defendant recovered. The judgment was reversed by this Court, and a new trial ordered. On the retrial a judgment for nominal damages was recovered by plaintiff, and he again appeals.

The action is for libel in publishing the following article:

“ The police detectives Noble and McDonald yesterday arrested Michael Davis, who resides at number 311 East Columbia street, and Charles Davis, living at number 441 Hastings street, on account of the larceny of a quantity of lead pipe belonging to the company who are about to bring natural gas to Detroit.”

In the next issue but one of the paper the following was published:

“ The Michael Davis who was arrested for the larceny of lead pipe — the item which we published shortly on last Friday — does not live at number 311 Columbia street. This error was caused by a fault in the writing.”

Six days later, plaintiff’s attorney addressed a letter to the defendant, stating that he had been retained to bring an action for libel, and that the notice was given in compliance with the libel law of 1889. And on the same day the defendant published an article as follows:

“A Mixing Up of Persons.

“ In the number of the Abend Post of Saturday, November 15, there was a small item published, in which it was stated that Michael Davis and another man had been arrested on account of stealing lead pipe, or had stolen some lead pipe, and on that account had been arrested. So far the notice was correct. But the residence of Michael Davis was given as being at 311 East Columbia street. In this respect it was error. In that house — that is, number 311 East .Columbia street — there lives truly a Michael Davis, and a thoroughly honest man, to whom, on account of this error, an unfortunate injury has been done. In last Sunday’s paper, scarcely 12 hours after the publication, we corrected the mistake in this erroneous notice, but we do it now in order to do the fullest justice to the man who is injured.”

The proofs also show that the paper is only furnished

to subscribers, so that presumptively the correction reached the same persons who read the libel. The court directed a verdict for the plaintiff, and the only questions which we need discuss, therefore, are those which relate to the rulings respecting the subject of damages.

The plaintiff requested the court to charge that—

“The law presumes that the article was published maliciously, and. the burden is upon the defendant to show that he acted in good faith and with proper motives;”

And that—

“ The willful publication of injurious statements involves the design to produce whatever injury must necessarily follow, and when done purposely, knowingly, and for no good purpose or justifiable end, it is malicious, in the sight of the law, even if done without any actual personal ill will.”

These requests undoubtedly embodied the law on the subject, and should have been given, unless the defendant had shown conclusively that the publication was made for justifiable ends, and that the article was made to point to the plaintiff through a mistake. The record fails to show this state of facts. It was therefore error to refuse to give the instructions asked, and to charge the jury, as the circuit judge did on his own motion, that “there was no evidence from which improper motives on the part of defendant could be inferred.” Detroit Daily Post Co. v. McArthur, 16 Mich. 451; Whittemore v. Weiss, 33 Id. 353; Evening News Association v. Tryon, 42 Id. 549; Newell, Defam. pp. 319, 321; Bacon v. Railroad Co., 55 Mich. 224. It was competent for the defendant to offer testimony to sffow the want of actual malice, as that the publication was made through mistake, and that all proper precautions were observed, by which the damages would be reduced to such a sum as would compensate for the injury which must inevitably have resulted. Scripps v. Reilly, 38 Mich. 23; Evening News Association v. Tryon, 42 Id. 549. But the defendant did not, in this case, make these facts appear conclusively. The circumstances of the publication are not shown, except as the jury are left to infer that because another Michael Davis was arrested the defendant must, in publishing this libel, have intended, in good faith, to refer to that Michael Davis, and not to the plaintiff. If any such inference is deducible from the testimony, it should have been left to be drawn by the jury. The. retractions were not evidence of the circumstances under which the original publication was made, or of the good faith of the original publication. They were admissible— their publication having occurred before suit brought, and immediately following the libel — in mitigation of damages. Newell, Defam. p. 907; Storey v. Wallace, 60 Ill. 51. While the case is manifestly one in which large damages should not be awarded, yet it is clear that the record fails to show conclusively that the publication occurred through mistake, and while in the exercise of reasonable care.

There are no other questions which .we think require discussion.

For the error pointed out the judgment will be reversed, with costs, and a new trial ordered.

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


author: McGrath, O. J.

text:
    O. Scott Wood v. Willard B. Wells.

      Real-estate brokers — Commissions—Instructions to jury — Waiver of objections.

    1. A real-estate broker who secures a purchaser, and brings the parties together, cannot be deprived of his earned commissions by the acceptance by the owner of the land of substantially the same offer, secured from the same customer by another party, and upon terms more favorable to the purchaser, notwithstanding the fact that the sale may have been finally consummated by the other party.
    2. In a suit to recover a commission for the sale of real estate, the court stated to the jury that, under the undisputed evidence in the case, the plaintiff had the right to secure a purchaser for the land, and, in case of a sale through his procurement, he was entitled to a stated commission on the selling price. And it is held that, if the statement of the court was incorrect, it was the duty of the defendant’s counsel then and there, before the case was finally submitted to the jury, to direct the attention of the court to the fact, and, not having done so, it must be presumed that the court was correct, and counsel cannot afterwards be permitted to contend otherwise.
    Error to Ionia. (Dodds, J., presiding.)
    Argued November 2, 1894.
    Decided December 22, 1894.

      Assumpsit. Defendant brings. error.
    Affirmed.

      The facts are stated in the opinion.

      John Nichol (R. A. Haioley, of counsel), for appellant.

      Ghaddock & Scully, for plaintiff.
   McGrath, O. J.

Assumpsit is brought to recover a commission for the sale of real estate. Defendant resided in Vancouver, Wash., and plaintiff at Ionia, where the property is situate. In November, 1892, plaintiff secured from one Welker an offer of $3,000, and communicated said offer to defendant. Within a few days thereafter, the property was sold and conveyed, through one Calkins, to Welker, for $3,650. But, under this contract of sale, defendant paid the taxes for the year 1892, which did not become a lien upon the land until December, and which amounted to $51.41.

On the 12th of October, plaintiff wrote to defendant that he had a purchaser for the property; and on November 8 the offer and the name of the purchaser were communicated to defendant, with the request that defendant wire his acceptance. On November 14 defendant telegraphed to plaintiff to “accept offer, unless I telegraph you by Saturday;” and on November 16 defendant telegraphed: “Will not sell property for $3,600.” On November 14 defendant had written, saying that he had received a better offer, which he had accepted. This letter was not, however, received until some days after its date.

Defendant insists that he finally sold the property, through Calkins, for $3,650. In his testimony he says:

“This sale was consummated through the efforts and instrumentality of Charles K. Calkins.”

Nowhere does he claim that the offer of $3,600 and the name of the purchaser were not first communicated to him by plaintiff. The purchaser testifies as to a conversation had with Calkins as follows:

“He asked me $3,700 or $3,800. Before he left me, he asked me if I would give him $3,700, if I remember right. I says: ‘No; I won't; not to-day.' He says tome, would I give $3,650. ‘Well, sir,' I says, ‘I will think about it, and let you know.’ And if I remember right, the next morning I went to Mr. Calkins' house, and told him I would give him $3,650; and I wanted him to give me possession of it, and I wanted him to pay the taxes, as it was getting near the end of the year, and I had had no.use of it. He said he would give me possession of the house, but disputed about paying the taxes. The taxes seemed to divide us. It seemed to be upsetting the trade. We both found out what the taxes were. * * * Finally, I said to him: ‘You telegraph the judge, and I will pay for it, and he will pay the taxes himself.’ I paid for the telegram to Vancouver, and he answered back to Mr. Calkins to pay the taxes and let me have it. I never made Mr. Wood any higher offer than $3,600, and .there was nothing said about the taxes.”

Under these facts, plaintiff must be held to have procured the purchaser, and brought the parties together, and cannot be deprived of his earned commissions by the acceptance of substantially the same offer, and upon terms more favorable to the purchaser, notwithstanding the fact that the sale 'may have been finally consummated by another. McCreery v. Green, 38 Mich. 184; Fox v. Rouse, 47 Id. 558; Hannan v. Moran, 71 Id. 261; Scott v. Clark, 3 S. D. 486; Fraser v. Wyckoff, 63 N. Y. 448. The court left it to the jury to determine who was the procuring cause of the sale, and they found for the plaintiff, and the verdict should not be disturbed.

The court instructed the jury that, if they found that plaintiff was the procuring cause of the sale, he would be entitled to a verdict for 2per cent, commission on the amount for which the sale was made. It is urged that the statement as to the amount to which plaintiff was entitled was not warranted by the evidence. Plaintiff had other property belonging to defendant in his hands for sale, at a stipulated commission of 2-| per cent. But it is urged that this contract, relating to other property, did hot warrant the court’s instruction. The court had already said to the jury that—

“Under the evidence in this case, that is undisputed, the plaintiff had a right to procure a customer and purchaser for the land in question; and, in case of a sale through his procurement, he was entitled to- have a commission of two and one-half per cent, on the selling price.”

No suggestion was made to the court in connection with this.statement, nor does it appear there was any controversy over that question. Courts have the undoubted right to narrow the issues presented to the jury to such as are contested, and it is eminently proper so to do. If the statement of the court was incorrect, it was counsel’s duty then and there, before the case was finally submitted to the jury, to direct the attention of the court to the fact. Not having done so, it must be presumed that the court was correct, and counsel cannot now be permitted to contend otherwise.

The judgment is affirmed.

The other Justices concurred.


author: Grant, J-..

text:
    Daniel J. Davis and Thomas Rankin v. William Kneale.
    [See 97 Mich. 72.]

      Contract — Escrow—Delivery,
    The direction of a verdict in favor of the defendant, on the ground that the contract sued upon had never been delivered to the plaintiffs, is sustained.
    Error to Ionia. (Dodds, J., presiding.)
    Argued November 2, 1894.
    Decided December 22, 1894.

      Assumpsit. Plaintiffs bring error.
    Affirmed.
    The facts are stated in the opinion, and in 97 Mich. 72.

      George E. & M. A. Nichols, for appellants.

      B. A. Hawley, for defendant.
   Grant, J-..

For a general statement of the nature of this case, see 97 Mich. 72. IJpon the second trial the court directed a verdict for the defendant upon the .ground that dhe contract signed by Kneale had never been delivered. This charge was based upon certain statements made by three witnesses, Pilkingt.on, Oaswell, and McClellan, which were .admitted by counsel for plaintiffs to be true. Mr. Briggs, the agent of plaintiffs, testified as follows:

“I explained to Mr. Kneale that this signing, it didn’t bind him unless we got enough to sign to amount to at least $5,300, that being the price of the cheapest plant. A question arose in regard to our house that I represented, and this creamery business, and I said to Mr. Kneale that we had a meeting down town, and a committee of gentlemen had been appointed to help me go around and ride with me, and to introduce me to the farmers from place to place; that Mr. Carbaugh was one; that these contracts were in the hands and under the control of the committee until the amount was raised, and if, any time before the amount was raised, they found that there was a fraud in it, or anything wrong, that the committee were authorized to burn the contracts up, and never deliver them.”

Mr. Caswell stated the arrangement concisely, as follows:

“The committee were to go around and solicit subscriptions, and see if they could raise the $6,000; and, providing we could, and the building was completed, .that before the building was accepted, or before we were to pay any of our subscriptions, we were to appoint two mechanics out of the village there, that we thought were competent, and he would pay their fare to Iowa or Illinois, where these creameries were being built, and let them look them over; and, if this creamery was satisfactory, after they came back we were to pay our subscriptions, and, if it wasn’t, why, the subscriptions were null an'd void, if everything wasn’t satisfactory.

“Q. What was said, if anything, in regard to it if you found anything wrong about the transaction or the scheme, or anything fraudulent in it, — as to whether the contract should be delivered or not?

“A. It was not to be delivered. -

“Q. Whose hands were these contracts to remain' in until delivery?

“A. The committee’s hands, of course.”

Mr. McClellan testified that the committee ascertained through correspondence that the price of the creamery ($6,000) was too high, and that it could be built cheaper; that he so stated to Mr. Briggs, who agreed to build it for $1,500 less; that he took this proposition to the committee, and a day or two afterwards told Mr. Briggs that he thought they could raise the amount ($4,500), but that Mr. Briggs refused, and said that if he remained, and helped to raise the money, he must have the $6,000. The committee then met, and voted to abandon the scheme, and so notified Mr. Briggs. He left town for a few days, but returned, completed the subscriptions to the full amount, and built the creamery. The testimony of the other witnesses is substantially the same as that of Mr. Caswell, except that Mr. Pilkington testified that, the committee should ascertain in regard to the price, which was to be as low as the creamery could be purchased.

We think the court was correct in directing a verdict for the defendant. Counsel for plaintiffs argue that the sole condition precedent to the delivery or abandonment was that the committee should go to Illinois or Iowa and make the investigation. The difficulty with this argument is that it leaves out-of consideration the testimony of Mr. Pilkington that the price was to be as low as the creamery ■could be purchased, and that they were not limited to those two states, but might make the investigation anywhere they chose. They did investigate the price, and submitted their evidence to Mr. Briggs, who agreed to reduce it $1,500, but afterwards refused to do so. The investigation into the price could just as well have been made in Michigan as in any other state, and no place was specified by the agreement in which it was to be made. It was made. The committee met, resolved not to go on because of the price, so notified Mr. Briggs, abandoned further action, and disbanded. The committee took no further action as a committee, and whatever its members may afterwards have done individually was not binding upon defendant. At the time of this action the contract had not been delivered. The amount required to warrant delivery had not been raised. How it came into the hands of Mr. Briggs does not appear. It is sufficient to say that it was never delivered by the committee.

Judgment affirmed.

The other Justices concurred.


text:
    The Walter A. Wood Mowing & Reaping Machine Company v. Joseph W. Oliver and Fred B. Oliver.

      Partnership — Dissolution—Suretyship—Release of retiring member..
    With notice of the dissolution of the partnership existing between the makers of certain notes at the time they were made, and of an arrangement between the two partners that one of them, to whom the property for which the notes were given had been turned over, should pay the notes, and after suit had been commenced on the notes, the payee, at the request of said partner, and without the knowledge of the retiring partner, extended the time for the payment of the notes, and accepted from said partner a chattel mortgage n on his individual property to secure such payment. And it is held that, as between the partners, the retiring partner was merely a surety, and that by extending the time of payment of the notes, and accepting the chattel mortgage, the payee released said surety from liability on the notes.
    Error to Kent. (Adsit, J.)
    Argued November 21, 1894.
    Decided December 22, 1894.

      Assumpsit. Defendant Joseph W. Oliver brings error.
    Eeversed as to appellant, and no new trial ordered.
    The facts are stated in the opinion.

      •Wolcott & Ward, for appellant.

      Turner & Carroll, for plaintiff.
   Long, J.

This case was tried before the court without a jury, and the following findings made:

“1. That the said defendants, Joseph W. Oliver and Fred B. Oliver, were in the year 1884, and for some time prior thereto, engaged, as copartners, in farming in Northern Dakota, and that they continued together in the farming business until about the 1st of August, 1885, when Fred B. Oliver took charge of his brother’s (Joseph W. Oliver’s) part of the business.

“ 2. That the said Joseph W. Oliver and Fred B. Oliver jointly, on the 1st day of August, 1884, at Steele, Dakota, executed three certain promissory notes, — one for eighty dollars ($80), payable on or before the 1st day of November, 1885, with interest at 10 per cent, per annum from August 1, 1884, until paid; one for eighty-five dollars ($85), payable on or before the 1st day of November, 1884, with interest at 10 per cent, per annum from August 1, 1884, until paid; and one for eighty dollars ($80), payable on or before the 1st day of November, 1886, with interest at 10 per cent, per annum from August 1 until paid.

“3. I further find that these notes were given by the defendants as the purchase price of a Walter A. Wood harvester and binder, and that said machine was used by them for the purpose of carrying on their farming operations until about the 1st of August, 1885, when the harvester and binder was turned over by Joseph W. Oliver to his brother, Fred B. Oliver, and after that time Joseph W. Oliver had no further interest in the machine.

fí4. I further find that, by an agreement between the agent of the plaintiff and the defendants, the time of payment of the notes falling due on the first day of November, 1884, and on the 1st day of November, 1885, was extended until the'1st of October, 1886, and I find that such extension was made with the knowledge and consent of Joseph W. Oliver. I further find that on or about .July 23, 1888, by agreement between plaintiff and Fred B. Oliver, the time of payment of the two notes mentioned in the fourth finding of fact was extended for one year, and that plaintiff, to secure the payment of said notes, took from defendant Fred B. Oliver a chattel mortgage on his individual property.

“5. I therefore find, as a matter of law, that the said Joseph W. Oliver is liable as a joint maker of said notes, and plaintiff is therefore entitled to a judgment for $258.80 and costs.”

Exception is taken by counsel to the action of the court:

1. In refusing to add to the first finding, as requested, the following: “Taking the assets of the firm, and assuming and agreeing to pay the debts of the firm, including the notes hereinafter described, and. that this agreement was made with the full knowledge of the plaintiff.”

2. In refusing to add to the fourth finding that “this extension was made without the knowledge and consent of defendant Joseph W. Oliver.”

3. In finding, as matter of law, that Joseph W. Oliver was still liable on the notes.

It appears that at the time the notes were given the defendants were partners,in business, and gave the notes as such, or at least as joint makers. Joseph W. never denied his liability until suit was brought upon the notes, though it seems that he told plaintiff’s agent that he had turned over the property to his brother, and that he would pay the notes. At the time the notes became due, neither could pay them, and they were extended, and apparently with the consent of Joseph W. Fred says, “My brother agreed that I might make any terms I could with reference to these notes,” and he says he notified Joseph what arrangement he had made.

But it is claimed that by taking the mortgages from Fred the plaintiff released Joseph W. Oliver. When the second mortgage was taken, Fred says that Joseph told him to see what arrangement could be made with the agent. After suit was commenced the third mortgage was taken. On June 5, 1888, Fred wrote plaintiff:

tcMy brother J. W. Oliver, of Grand Rapids, informs me that your man has been there to collect 'the harvester notes signed by us jointly. * * * I want to relieve him of any further trouble,” etc.

In this letter he proposes to give a chattel mortgage as security, describing the property on which the mortgage would be given. In answer to this the plaintiff wrote on June 16 that suit had been commenced, but a chattel mortgage would be taken to secure the judgment, and he could have time to pay it. This mortgage was given July 23, 1888, and recites that it is to secure the payment of the notes, and the time of payment was extended to 1888 and 1889. There is no showing that Joseph 'W. ever consented to this, or in fact ever knew of it. The plaintiff knew that the partnership had been dissolved, and that there was an arrangement between the defendants that Fred was to pay the notes. As between the partners, therefore, Joseph was merely a surety, and this with the knowledge of plaintiff; hence, when plaintiff extended the time on the notes by taking the third chattel mortgage, it must be held to have discharged Joseph W. Smith v. Shelden, 35 Mich. 42.

The judgment must be reversed as to Joseph W., and no new trial will be ordered.

The other Justices concurred.

       The first mortgage was given by both defendants at the time of the execution of the notes; the second by Fred B. when the first extension was made.