text:
    F. B. HOLMES & CO. v. CITY OF DETROIT.
    1. Contracts — Interpretation — Unilateral Agreements — Mutuality.
    A contract to furnish to the city of Detroit all the Portland cement that may be required by it and ordered by its department of public works during a given year, in consideration of a fixed price per barrel, entered into in pursuance of an advertisement for proposals fixing the amount at “5,000 barrels, more or less, as may be required by the department of public works,” is mutual and binding.
    S. Same — Breach—Municipal Corporations.
    Such contract does not by its terms limit the amount of cement to 5,000 barrels, and the contractor is bound to furnish the entire amount required by the municipality.
    Error to Wayne; Murphy, J.
    Submitted April 16, 1909.
    (Docket No. 42.)
    Decided September 21, 1909.
    Assumpsit by F. B. Holmes & Company against the city of Detroit for goods sold and delivered. A judgment for plaintiff on a verdict directed by the court for less than the amount claimed is reviewed by plaintiff on writ of error.
    Affirmed.

      Gray & Gray, for appellant.

      Walter Barlow (P. J. M. Hally, of counsel), for appellee.
   McAlvay, J.

Plaintiff brought suit against defendant to recover for an amount claimed to be due for certain cement furnished by it under a certain agreement entered into between the parties. Defendant on January 11, 1906, through the department of public works, advertised for proposals for furnishing “ 5,000 barrels of Portland cement more or less as may be required by the department of public works from the date of contract to January 31, 1907',” to be delivered in sacks at a warehouse within the control of the board in a designated locality. Plaintiff tendered a proposal in writing to furnish the cement in sacks “as per your advertisement of January 11, copy of which is hereto attached,” at $1.69 per barrel, and to repurchase the sacks at 7£ cents each. On February 15th following, the parties entered into a written contract, in which plaintiff agreed—

“ To furnish all the * * * Portland cement that may be required by the city of Detroit and ordered by the department of public works in and during the year ending January 31, 1907, * * * said cement to be delivered in such quantities and at such times as the department of public works may direct. * * * The furnishing of said Portland cement to be according to the specifications and proposals hereunto attached and made a part of this contract.”

The agreement of defendant in this contract was—

“ To pay the said first party the compensation in the manner provided, that is to say, the sum of one dollar and sixty-nine cents ($1.69) for each and every barrel of Portland cement delivered and satisfactory to the department of public works.”

A bond was required and furnished by plaintiff to the defendant in the sum of $3,500, conditioned, that if plaintiff,—

“Who has executed the annexed contract for furnishing all the Portland cement that may be required and ordered by the department of public works in and daring the year ending January 31, 1907, * * * shall in all respects well and faithfully execute and perform,” etc.

Plaintiff also furnished as required a bond to the people of the State of Michigan in the sum of $3,500, which recites that plaintiff has agreed—

“ To furnish all the Portland cement that may be re- ' quired and ordered by the department of public works in and during the year ending with January 31, 1907.”

The foregoing papers, together with the specifications for Portland cement, were attached and constituted the contract between the parties. Under this agreement, according to its terms, plaintiff having furnished 6,242J barrels of Portland cement, upon orders of the department of public works, on September 4, 1906, wrote to defendant, as follows:

“Mr. J. J. Haareb,

“Commissioner Dept, of Public Works,

“Detroit, Mich.

“Dear Sir: In accordance with advertisement for Portland cement we were to supply you five thousand barrels, more or less, and in this connection would say we have supplied up to the first of September 6242¿ barrels, and since then a considerable quantity.

“We think the more or less quantity should not exceed 20% on the face of the amount, and as cement has advanced very materially and we are losing money on every barrel of cement we are furnishing to you we think that we have fulfilled our agreement and should not be expected to fill any more except at an advanced price, which we will make to you at just the cost of the material.

“ Yours respectfully,

“F. B. Holmes & Company.”

On September 6th plaintiff refused an order for 100 barrels of cement given by defendant, and on the following day again wrote:

“Dear Sir: Under our contract for the furnishing of Portland cement to the city of Detroit, based upon your call for proposals, dated January 11th, 1906, we have upon your order already delivered over 6,200 barrels. This is more than 20 per cent, in excess of the 5,000 barrels specified in your call. We are advised that we are not under obligation to furnish any more cement and you are notified hereby that we shall not furnish any more cement under said contract.”

On the same date the commissioner of public works notified plaintiff in writing that the contract would be enforced, and that the cement required would be purchased in the open market, and plaintiff and its bonding company held responsible for excess in cost.

The following facts are stipulated:

“First. At the time the notice of September 7, 1906, was given, the plaintiff had delivered 6,833^ barrels of cement at the aggregate contract price of $10,878.73, upon which there had been paid in sacks and money $9,361.25, leaving unpaid $1,517.48.

“Second. After September 7, 1906, and prior to January 31, 1907, the plaintiff furnished and delivered to the defendant 3,715 barrels of cement, as set forth in the notice attached to defendant’s plea, all of which has been paid for in full by the defendant, such payment being $1,079.04, in excess of what the defendant would have been required to pay under the prices named in said contract of February 15, 1906.

“ Third. That at varying times, between the 13th and 21st days of September, 1906, defendant purchased in the open market and at the market prices and values from other parties and paid for 1,017-g- barrels of cement at a cost of $1,966.77, which was $425.97 in excess of what the defendant would have been required to pay at the prices named in said contract of February 15, 1906.

Fourth. That after September 7, 1906, and prior to January 31,1907, in addition to the amount delivered and paid for as set forth in paragraph 2, plaintiff furnished and delivered to defendant 832 barrels of cement, 644 barrels at $1.68 per barrel, and 188 barrels at $1.98 per barrel, making a total of $1,455.17, being $242.29 more than the price named in the contract of February 15th. Against this, defendant is entitled to $503.60 credit for sacks returned, and $11.39 for 5f barrels of cement returned to plaintiff, which had been paid for in the amount included under paragraph 2.

“Fifth. All of the cement received by the defendant after September 7th, as hereinbefore stipulated, was required by the department of public works. If, after giving the notice of September 7, 1906, the plaintiff was not obliged to furnish any more cement under the contract of February 15, 1906, then the plaintiff is entitled to recover from defendant (including interest) $2,703.42; but if, on the other hand, the plaintiff was bound, after giving the notice of September 7, 1906, to continue furnishing cement under the contract of February 15, 1906, then there should be deducted from said amount the excess cost of the cement gotten by defendant after September 7,1906, to wit, $1,747.32, leaving the net amount due plaintiff (with interest) $781.37.”

Plaintiff requested the court to direct a verdict in its favor for the sum of $2,703.42. This request was refused, and a verdict was directed for plaintiff for $781.37. We are asked to reverse this judgment upon claimed errors of the court, which are assigned as follows:

(1) Because the court refused to admit testimony as to the amount of cement delivered by plaintiff to defendant under the contract of 1905.

(2) Because the court refused to admit testimony as to the amount of cement which plaintiff provided for the purpose of filling the contract (Exhibit 1).

(3) Because the court refused to direct a verdict for plaintiff for $2,703.42.

There is no dispute as to the facts in the case. It turns upon the construction of the written agreement between the parties. The contentions of the plaintiff are:

(а) That the contract covers nothing beyond 5,000 barrels “more or less” and was fulfilled when 6,833] barrels had been delivered.

(б) That this was a mere offer by plaintiff to furnish cement at a given price and the offer was withdrawn before acceptance either for a fixed amount or what the city required.

(c) That the agreement was unilateral.

The specifications and proposals were made part of the contract.

It will not be necessary, in giving a construction to this agreement, to go outside of the writings which are attached to and made a part of it. The proposals solicited by the advertisement were—

“For furnishing and delivering * * * according to the specifications 5,000 barrels of Portland cement, more or less, as may be required by the department of public works from date of contract to January 31st, 1907.”

The proposal submitted by plaintiff under and according to the terms of this advertisement was accepted. The plaintiff and defendant entered into the contract on February 15, 1906, to furnish “all the Portland cement * * * that may be required by the city of Detroit and ordered by the department of public works in and during the year ending January 31, 1907,” and defendant agreed to pay the stipulated price for each barrel of cement delivered. The department of public works is one branch of the municipal government of Detroit. This department alone could order the cement which was to be used in the public improvements carried on by it. The department was not the municipality, so we find in the contract the agreement to furnish the city of Detroit all the Portland cement that may be required by it and ordered by the department of public works.

We may eliminate the contention that this was a unilateral contract. The proposition of plaintiff was accepted by defendant. It was certainly agreed that plaintiff should furnish cement, and defendant would pay for it. After the contract of February 15th, this proposition was not subject to withdrawal. This contract covered all the cement required by defendant during the year ending January 31, 1907, for the use of the department of public works. It was a mutual agreement, binding upon both parties. We find no difficulty in ascertaining the prime object and purpose of these parties as expressed in the writings considered. They had in mind so many barrels of cement as the operations of this department would require during this period. The exact amount of cement which would be required could not be known at the time of entering into the contract, as the first meeting of the board of estimates does not occur until in March. The clause “5,000 barrels of Portland cement, more or less, ” was the expression of an estimate subject to the controlling object of the agreement expressed in the words of the contract, “all the Portland cement that may be required by the city of Detroit and ordered by the department of public works,” the last clause expressing the method required to secure the delivery of the property to defendant.

This is not within the line of cases where the agreement construed turned upon the acceptor’s “ wish,” “desire,” or other like contingency. There is no reason that, under this contract with the municipality, the same rule should not be applied as in the case of an established business in construing the clause “ as may be required” and the construction be given as if reading “all of the Portland cement which may be required.” This case is within the rules laid down in the cases relied upon and cited in the opinion of the trial court, viz.: Brawley v. U. S. 96 U. S. 168; Merriam v. U. S., 107 U. S. 437 (2 Sup. Ct. 536); Day v. Cross, 59 Tex. 595. And also the following cases: Coldblast Transportation Co. v. Kansas City Bolt & Nut Co., 114 Fed. 77 (52 C. C. A. 25, 57 L. R. A. 696); E. G. Dailey Co. v. Clark Can Co., 128 Mich. 591 (87 N. W. 761). See, also, Marx v. American Malting Co., 169 Fed. 582.

The judgment is affirmed.

Blair, C. J., and Grant, Montgomery, and Brooke,, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    RAWLINGS v. CLYDE PLANK & MACADAMIZED ROAD CO.
    1. Negligence — Damages—Aggravated Disease.
    While the fact that an injury aggravates a pre-existing disease must, to permit a recovery for such aggravation, be specifically set forth in the declaration, testimony tending to show that the plaintiff, whose declaration omitted such claim, had previously suffered from his knee, and had not until after his-injury been affected in other portions of his body, warrants an instruction to the jury that he could recover for injuries which were not an aggravation of previous difficulties, and were solely and directly caused by the negligence shown.
    2. Evidence — Witnesses—Credibility—Instructions to Jury.
    A request to charge the jury is properly refused, where, without limiting its effect to intentionally false testimony, it permits the jury to disregard entirely the testimony of any witness who testifies untruthfully.
    3. Negligence — Burden of Proof — Personal Injuries.
    Failure of the trial court to give a requested instruction that the burden of proof as to all the issues is upon the plaintiff, is not cured because the negligence of defendant was admitted, and because the jury were charged that plaintiff must show by a preponderance of the evidence that he was not guilty of contributory negligence.
    Error to St. Clair; Tappan, J.
    Submitted April 24, 1909.
    (Docket No. 84.)
    Decided September 21, 1909.
    Case by Harry Rawlings against the Clyde Plank & Macadamized Road Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Moore & Wilson, for appellant.

      John B. Mellwain and Frank T. Wolcott, for appellee.

   Brooke, J.

The plaintiff in the case, a young man about 26 years of age, was injured on the 22d day of November, 1905, upon a toll road controlled by the defendant company. It appears that he was engaged as salesman for the Singer Sewing Machine Company, and was driving along the highway late at night. Situated in the highway and across a ravine thereon is a bridge some 30 feet long and 14 or 16 feet in width. The ravine was approximately 15 feet in depth. The defendant company had permitted the railing upon the east side of the bridge to rot away and become displaced. The railing had been missing for upwards of a year prior to the accident. The night in question was very dark, and the bridge was somewhat overhung by trees. Upon reaching the bridge, the horse,' a quiet one, either stumbled or shied, and the front wheel of the wagon in which the plaintiff was riding 'dropped from the east edge of the bridge, precipitating the plaintiff and his companion to the bottom of the ravine, where they alighted upon broken timbers and planks. Plaintiff was able to reach the toll gate in the vicinity, and was from there taken to the city of Port Huron, where he received medical treatment for his bruises. The injuries complained of by the plaintiff caused pain in the stomach and side, limbs, and in one foot. After being treated in Port Huron for about three weeks, he was removed to his father’s home, where he remained for about three months, and was then removed to a hospital in Detroit where he was operated upon. Both knees had become very much swollen. The operation performed in Detroit was that of inserting rubber tubes through the affected part of the knees for the purpose of draining off the fluid that had accumulated there. The plaintiff recovered to some extent, but had been unable to perform any labor up to the time of the trial.

The plaintiff averred in his declaration that at the time of receiving said injuries he was 26 years of age and in good health. Upon cross-examination he testified that he had received an injury about six years prior to the happening of the injury complained of in this case. He testified that he slipped through a hayrack, hurting one of his legs. He further gave testimony tending to show that from the time of the happening to him of this earlier injury he had suffered more or less constantly in the left knee; that it would swell after a day’s work and give him pain, and the cords would contract. But he likewise testified as follows:

“ I didn’t experience any difficulty in other parts of my body as results of that pain at any time. I had no stomach trouble or difficulties of any kind or character at any time prior to this accident. * * * It was my knee that bothered me. * * * My leg never laid me up a day.”

He further gave testimony tending to show that after the receipt of the injury complained of in the case at bar he suffered pain in his arms, his right leg as well as his left leg — particularly his back and bowels.

At the close of plaintiff’s case, defendant’s counsel moved for a direction of a verdict upon the ground that there was a fatal variance between the allegation of the declaration and the proof offered on behalf of the plaintiff. The court overruled the motion, upon which ruling defendant assigned error. We are of opinion that the court did not err in so holding. The fact that plaintiff had a diseased condition of one leg would not bar a recovery for an injury to the other leg or other parts of the body “caused solely by and resulting from the accident, although he was more susceptible to suffering because of other ailments or disease.”

Hunter v. Village of Durand, 137 Mich. 53 (100 N. W. 191).

Upon this branch of the case the trial court instructed the jury as follows:

“Inrelation to this branch of the case, you are instructed that if you find from the evidence that rheumatic or other disorders actually existed in plaintiff’s legs or knees prior to the accident, and you also find that the injuries to his knees and legs received in November 22, 1905, by means of the accident, augmented or aggravated or made worse a preexisting disease or disorder or lameness, then there can be no recovery for any injuries on account of such augmented injury, disease, or condition, nor on account of pain and suffering resulting therefrom. Now, let me make this matter plain. If the injuries to the legs or knees on November 22, 1905, were in any degree an aggravation of a former injury, disease, or condition of either or both legs or knees, then there can be no recovery by plaintiff on account of such injuries that simply aggravated the former conditions.

“You are instructed, further, gentlemen, upon this branch of the case, that the fact that plaintiff suffered an injury to his legs some years prior to the accident, and that its effects had continued to the time of the accident in the form of lameness, rheumatism or otherwise, does not deprive the plaintiff of a sight to recover for injuries that are directly and solely attributable to the accident itself, unaffected by former conditions. It is your province to consider all of the evidence of those former injuries and conditions, and also the evidence of the general health of the plaintiff, and to give it such weight as you think it deserves upon the question of their effect upon the real injuries that the plaintiff now suffers and their effect as to mitigating or reducing damages to be awarded to him, if any. But, subject to these precautions, the question for you to determine is this: What are the plaintiff’s injuries, losses, and sufferings that are directly and solely traceable and attributable to the accident ? That is the meaning of it. And, if you find from the evidence that the plaintiff suffered injuries that are the direct and sole result of the accident, then, if you find for the plaintiff under these circumstances, you will proceed to award him damages commensurate with such injuries.”

Under the authority of Hunter v. Village of Durand, supra, we think this charge was justified, and that the rights of the defendant were fully protected thereby.

Defendant’s 5th request to charge was as follows:

“ If you should find that any witness who has been produced and sworn upon the trial of this cause has not sworn truthfully to all the material facts in reference to which he has been interrogated, then I charge you that you should carefully scrutinize all of the testimony of said witness; and you would have a right to entirely ignore the testimony of any witness who had not truthfully testified as to any of the material facts in said cause.”

This request is not a proper statement of the law, inasmuch as it is silent upon the question of intent. As was said by this court in the case of Gerardo v. Brush, 120 Mich. 405 (79 N. W. 646):

“The false swearing must be intentional or wilful to justify a jury in disregarding the testimony entirely.”

The request was evidently directed to the testimony of the plaintiff himself, and, while under the authority of Gerardo v. Brush, supra, we cannot reverse the judgment because of its refusal, we are of the opinion that the court, its attention having been directed to the matter, should have properly instructed the jury upon the point raised, because of the fact that the plaintiff’s testimony, upon direct examination, was in conflict in some respects with his testimony upon cross-examination and with the testimony of numerous other witnesses.

Error is assigned upon the court’s refusal to give defendants’ 18th request, which was as follows:

‘ ‘ I charge you that the burden of proof of all the material facts necessary to substantiate the plaintiff’s claim is on the plaintiff, and he must prove each and every necessary element of his case by a preponderance of the evidence, and, if he fails to do so, you must find no cause of action.”

Upon this point the court charged:

“ It is also the duty of the plaintiff to prove to your satisfaction by a fair preponderance of all of the evidence that at the time he was injured, if you so find, he was himself free from negligence that caused or contributed to cause the accident.”

The defendant had in effect admitted its negligence in failing to keep the bridge in reasonable repair. This admission relieved the plaintiff from proof upon that point, but it did not relieve him from the necessity of proving all the other elements necessary to his recovery by a fair preponderance of the evidence. Among these elements was the question of how far the injury complained of was the cause of plaintiff’s subsequent condition, and how far that condition was induced by his earlier ailments. Upon this point there was a sharp conflict in the testimony, and nowhere in the charge of the court is the jury instructed thát the burden of proof was upon the plaintiff as to this matter. This request should have been given. Miller v. Railway, 144 Mich. 1 (107 N. W. 714).

The judgment is reversed, and a new trial ordered.

Blair, C. J., and Montgomery, Ostrander, and Hooker, JJ., concurred.


author: Montgomery, J.

text:
    WEBER v. CITY OF DETROIT.
    1. Constitutional Law — Retroactive Legislation — Special Assessments — Eminent Domain.
    A taxpayer, whose property was assessed by special assessment for opening a village street, could not be made personally liable for the tax, which, under the village charter, was enforceable only against the property, by reason of provisions in the charter of the city of Detroit to which the village was subsequently annexed, creating a personal liability to the amount of the benefit received.
    2. Eminent Domain — Statutes—Jury—Waiver op Depeots.
    Persons interested in the condemnation of land for a street may waive their right under Act No. 176, Pub. Acts 1903, to a jury of twelve, in a case where eleven jurors rendered the verdict, the award being accepted and no appeal taken.
    3. Taxation — Municipal Corporations — Special Improvements —Notice and Publication.
    The requirements of 1 Comp. Laws, § 2834, providing for a notice of public improvements in villages, and of the district to be assessed, does not apply to condemnation proceedings under Act No. 176 of the Public Acts of 1903.
    4. Same — Special Assessments — Municipal Corporations— Valuation — Reassessment.
    Failure to fix the valuation of complainant’s property, in assessing a special tax for condemnation proceedings under 1 Comp. Laws, § 2837, is fatal to its validity, but would not preclude a reassessment in correct form.
    Appeal from Wayne; Donovan, J.
    Submitted April 16, 1909.
    (Docket No. 59.)
    Decided September 21, 1909.
    Bill by Joseph F. Weber against the city of Detroit and Forbes Robertson, county treasurer, to vacate the levy of a special assessment. From a decree for defendants, complainant appeals.
    Reversed, without prejudice to proceedings for a reassessment.

      Jasper G. Gates, for complainant.

      Walter Barlow (P. J. M. Hally, of counsel), for defendants.
   Montgomery, J.

The bill in this case was filed to vacate a levy of a special assessment levied by the authorities of the village of Fairview for. the costs and expenses of opening a portion of Taylor avenue, in said village. The bill was originally filed against the village of Fair-view, its treasurer, and the present defendant, Forbes Robertson, county treasurer. After the bill was filed, the village of Fairview was annexed to the city of Detroit, and the city was substituted as defendant in place of the village and its treasurer.

On the hearing the circuit judge determined that the proceedings were irregular, but, apparently acting upon the authority of section 197 of the charter and laws of the city of Detroit, which provides that “no special assessment or reassessment heretofore or hereafter made shall be vacated, set aside or held invalid by any court on account of any defect or omission in the proceedings had or taken in the making of said improvement, or in such assessment roll, unless the person or persons complaining thereof be required to pay such sum or sums as said court may find the property assessed in said assessment roll shall have been benefited by the making of suchimprovement,” determined the amount of benefit to the property of complainant, and entered a decree in favor of defendants and against complainant for the amount. From this decree, complainant appeals.

We are not cited to any section of the law which makes the owner of the land personally liable for an assessment of the character here involved. If the law annexing the village of Fairview to the city of Detroit should be given a retroactive effect, and the attempt be made to apply the curative section above quoted, a difficulty would be encountered in the Constitution, as it is beyond the powers of the legislature to create a personal liability for a claim -of this character by retroactive legislative enactment. See Mogg v. Hall, 83 Mich. 576 (47 N. W. 553); City of Grand Rapids v. Railway Co., 130 Mich. 238 (89 N. W. 932, 97 Am. St. Rep. 473). It is open to grave doubt as to .whether the section in question can in any case be operative, in view of the decision in Houseman v. Kent Circuit Judge, 58 Mich. 364 (25 N. W. 369). It is obvious that the decree as entered cannot be sustained.

The question as to the relief to which the complainant is entitled is one of more difficulty. The complainant attacks the condemnation proceedings by which the city acquired the street in question, upon several grounds. As these proceedings are the basis of the assessment, it becomes important to inquire whether fatal defects are shown. It is first contended that the verdict of the jury finding the necessity was given by 11 jurors, and that for •this reason the entire proceeding is void. The statute (Act No. 176, Pub. Acts 1903) provides for condemnation by a jury of 12. By section 12 (Act No. 3, Pub. Acts 1895, chap. 13, as amended by Act No. 176, Pub. Acts 1903) it is provided that, upon filing the verdict rendered by the jury, same shall be entered upon the docket of the justice, and that judgment of confirmation shall be entered by the justice. All parties are required to take notice of this confirmation, and the act proceeds:

“Any such judgment of confirmation shall be final and conclusive as to all parties not appealing therefrom, within the time hereinafter provided.”

In the present case no appeal was taken, and it appears that the award was paid and accepted by the parties interested. It must be held that the public and those interested in the adversary proceedings for condemnation might waive the irregularity as to the number of jurors and that they had done so in this case. See Borgman v. City of Detroit, 102 Mich. 261 (60 N. W. 696), and Boussneur v. City of Detroit, 153 Mich. 585 (117 N. W. 220).

It is also contended that the record shows that 17.41 feet were taken from the west side of lot 4 and 32.59 feet from the easterly side of lot 5, and that for this latter strip no compensation whatever was awarded, and that this avoids the proceeding. The award shows that the owners and occupants of each of these strips or parcels were identical, and, while the compensation in the tabulation appears to have been placed opposite the first description, the jury in terms find as follows:

“We find that it is necessary to take the portions of lots 4 and 5 as prayed for in the petition, filed herein, and, as all the respondents are interested in each piece in the same manner, way, and proportions, we have allowed to each respondent in a lump sum all the compensation each is entitled to for the taking of the portions of both of said lots 4 and 5 so taken as aforesaid.”

How the contention can be seriously urged that there was no allowance whatever for any portion of lot 5 taken, in view of this finding, we are at a loss to understand.

It is next urged that the assessment upon complainant’s-property was without jurisdiction, and numerous arguments are also urged. The village of Fairview was incorporated under the general act for the incorporation of villages. 1 Comp. Laws, chap. 87. It is claimed that there was a failure to comply with section 2834, which provides:

“ Before ordering any public improvement, any part of the expense of which is to be defrayed by special assessment, the council shall cause estimates of the expense thereof to be made, and also plats and diagrams, when practicable, of the work of the locality to be improved, and deposit the same with the clerk for public examination; and they shall give notice thereof and of the proposed improvement or work, and of the district to be assessed, by publication for two weeks at least in one of the newspapers of the village, if any be published therein,” etc.

It will be noticed that this section relates to improvements to be ordered by the common council. We think it has no reference to a condemnation for a street opening or other improvement taken under the authority of Act No. 176 of the Public Acts of 1903, amendatory of the general village act. Act No. 3, Pub. Acts 1895, chap. 13. Under this act, by section 3, it is provided that “Whenever the council of any such village shall have declared a public improvement to be necessary in the village, and shall have declared that they deem it necessary to take private property, describing it, for such public improvement,” etc., proceedings may be instituted to have the question of necessity determined by a jury. Section 31 of this act provides:

“After the recording by the village clerk of the final judgment and verdict as provided in the last preceding section the proper and necessary proceedings in due course may be taken by the village council for the collection of the sum or sums awarded by the jury. If the council believe that a portion of the village in the vicinity of the proposed improvement will be benefited by such improvement, they may, by an entry in their minutes, determine that the whole or any just proportion of the compensation awarded by the jury, and of the costs and expenses incurred in connection with the proceedings, shall be assessed upon the owners or occupants of real estate deemed to be thus benefited, and thereupon they shall, by resolution, fix and determine the district or portion of the village benefited, and specify the amount to be assessed upon the owners or occupánts of the taxable real estate therein. * * *

It then provides that the “ amount of the benefit thus ascertained shall be assessed upon the owners or occupants of such taxable real estate, in proportion, as nearly as may be, to the advantage which each such lot, parcel or subdivision is deemed to acquire by the improvement,” and that the “ assessment shall be made and the amount levied and collected in the same manner and by the same officers and proceedings, as near as may be, provided in and by the act ” for the incorporation of villages. It is apparent that the legislative intent was that the district should be * fixed by the common council, not under section 3834, before ordering any public improvement, but after the improvement had been determined upon and the condemnation had under the provisions of the act of 1903. No notice of the fixing of the assessment district is required, but notice of the filing of the assessment roll was required, and this appears to have been given.

It appears that through a clerical error the assessment district as fixed by the council was not identical with that adopted by the board of assessors; that by some clerical error a portion of one of the pieces of property involved in this litigation was excluded from the assessment district, but it was included in the assessment by the assessors. We need not determine whether the assessment roll, if a full compliance with the law, would have cured this defect, as we are constrained to hold that the assessment roll itself was jurisdictionally defective. As above stated, the law of 1903 required that the assessment should be made and the amount levied and collected in the same manner and by the same officers and proceedings, as near as may be, as provided in the general village act. This act provides:

“When any special assessment is to be made pro rata upon the lots and premises in any special district, according to the frontage or benefits, the council shall by resolution, direct the same to be made by the board of assessors, and shall state therein the amount to be assessed, and whether according to frontage or benefits, and describe or designate the lots and premises, or locality constituting the district to be assessed. Upon receiving such order and directions, tíffe board of assessors shall make out an assessment roll, entering and describing therein all the lots, premises, and parcels of land to be assessed, and the valuation thereof with the names of the persons, if known, chargeable with the assessments thereon. * * *” 1 Comp. Laws, § 2887.

In the present case no valuation of the lands assessed against the complainant was made. Upon the authority of our own cases it must be held that this defect rendered the assessment void. See Steckert v. City of East Saginaw, 22 Mich. 104; Beidler Manfg. Co. v. City of Muskegon, 63 Mich. 44 (29 N. W. 678); and Walker v. City of Ann Arbor, 118 Mich. 251 (76 N. W. 394).

It follows that the complainant is entitled to relief from this assessment; but, as it is apparent that his property has had some benefit, that relief should not preclude the authorities from making a proper reassessment. We do not feel ourselves authorized to determine the amount to which this property is subject to assessment; but a decree will be entered granting the relief prayed, but without prejudice to any new proceedings which may be taken to reassess for the benefits which the complainant’s property has received by this improvement.

Complainant will recover costs.

Blair, C. J., and Grant, McAlvay, and Brooke, JJ., concurred.


author: Me Alvay, J.

text:
      In re PHILLIPS.
    1. Incompetent Persons — Probate Court — Insanity.
    Proceedings to adjudicate an individual insane should show a strict compliance with all the statutory requirements.
    2. Same — Jurisdiction.
    An order adjudging the respondent to be insane and committing her to an asylum, is void for want of jurisdiction, upon a record which shows that the petition was filed on May 21, 1902, an order for hearing made on May 22d, fixing the time of hearing on May 23d at 4 p. m., and that the hearing was held on May 22d at 4 p. m.
    3. Same — Evidenoe—Admissions—Estoppel—Res Adjudioata.
    It was error to admit in evidence, for the purpose of showing an estoppel, subsequent proceedings in probate court upon a petition to declare respondent restored to'mental soundness wherein, at respondent’s request, an order of discontinuance was entered, with costs against her.

      4. Same — Mental Incapacity — Evidence.
    An admission of insanity can never fix the status of incompetency.
    5. Same — Statutes—Restoration to Mental Soundness.
    Proceedings under 1 Comp. Laws, § 1942, for an order declaring the petitioner restored to sanity, are not required but are permissive.
    6. Same — Evidence—Presumptions.
    Persons are presumed to be sane until the contrary is shown by a preponderance of the evidence.
    7. Same.
    Jurisdictional defects in an order determining insanity may be attached collaterally, where no rights of innocent third persons are involved.
    8. Same.
    Such proceedings are not adversary, but in the interest of the public, to protect deficient citizens.
    9. Same.
    Where the only evidence of incompetency was the cross-examination of the respondent, who showed a fair degree of intelligence in business affairs, and. of acquaintance with her property, and gave no evidence of mental incapacity under a lengthy cross-examination, an order appointing a guardian is not sustained by the proof.
    Error to Houghton; Streeter, J.
    Submitted April 15, 1909.
    (Docket No. 51.)
    Decided September 21, 1909.
    Petition by Arthur Phillips for the appointment of a guardian of the person and estate of Gertrude C. Phillips, an alleged insane person. The petition was granted in probate court, and respondent appealed to the circuit court. A judgment for petitioner is reviewed by respondent on writ of error.
    Reversed. -

      Hanchette & Lawton, for appellant.

      W. J. Galbraith, for appellee.
   Me Alvay, J.

An application was made to the probate court of Houghton county for the appointment of a guardian of the person and property of Gertrude C. Phillips, upon the ground that she was mentally incompetent, by reason of insanity, to have charge, custody, and management of her person and property. The petitioner was a son and a prospective heir at law. It was alleged that the estate was of considerable amount. A hearing was had, the prayer of the petitioner granted, and the guardian of the person and estate appointed. A review of the action of the probate court was sought by writ of certiorari to this court, and it was held in this case not to be the proper remedy. 154 Mich. 139 (117 N. W. 630). An appeal was then had from this order and decree of the probate court, and the cause was heard in the circuit court for said county before the court and a jury. A verdict was rendered that the prayer of the petition be granted. The case is before us, upon writ of error, for review.

The principal question raised by the errors assigned is that the court should have instructed a verdict for respondent on the ground that there was no evidence in the case showing insanity.

It appears that on May 21, 1902, proceedings were begun by John Phillips, the husband of respondent, praying that she be admitted as a private patient to the Upper Peninsula Hospital for the Insane, as an insane person. On the same day an order was made appointing two reputable physicians to examine respondent as to her alleged insanity, and to certify to her condition as to sanity on or before May 22, 1902, at 4 o’clockp. m.; “that being the time and place heretofore assigned for hearing the application.” On May 22, 1902, an order was made for hearing said application on May 23, 1902, at 4 o’clock p. m., and on the same date, May 22, 1902, a hearing was had, and the order was made declaring her insane, and committing her to the hospital as a private patient. She remained there about six months, and was discharged. Since that time she had been at her home without restraint, going about her own affairs and transacting business for herself.

The record shows that upon the trial of this case the only evidence offered by petitioner related to these proceedings had in probate court, from which this appeal is taken, and the proceeding to commit respondent to the Hospital for the Insane above described, and consisted of: (1) Exhibit A, which was the petition, order of hearing, the order appointing the guardian, and the opinion and finding of the probate court in the proceedings appealed from in the case at bar. (2) Exhibit B, which was proof of service of notice of appeal and notice of trial. These two exhibits composed the material parts of the files and records in the case, and were received in evidence. (3) Petitioner also offered in evidence Exhibit C, which was a certified copy of the order of the probate court made May 22, 1902, declaring Gertrude Phillips insane, and ordering her to be removed to the hospital as a private patient.

Counsel for respondent objected to the admission of this order because it was not accompanied by the record of the proceedings; that it was void because no proper service was had, and the hearing was premature, and respondent was not represented by a guardian ad litem. The objection was overruled, and an exception taken. The record of these proceedings was afterwards offered by respondent for the purpose indicated, and received in evidence. (1) Petitioner also offered in evidence Exhibit D, being a copy of a petition of Mrs. Phillips filed in probate court for an order declaring her to be restored to soundness of mind, dated December 27, 1907, and Exhibit E, being a copy of an order made by said court, dated March 10, 1908, withdrawing said petition on her motion, and adjudging costs against her, taxed by the court, at the sum of $72.50. Objection was made to the admission of both these exhibits because they were immaterial and irrelevant to the issue. The objections were overruled, and respondent excepted. No further evidence was offered by petitioner, and he rested his case. The question was again raised at the close of the case, by request to charge the jury to return a verdict for respondent.

Proceedings taken for an adjudication of insanity against an individual should require the strictest compliance with all the statutory requirements provided. The determination affects the rights of the individual to the enjoyment of life, liberty, and property. Courts will ever protect the rights of the individual who is so unfortunate as to be called upon to make a showing to maintain his or her mental integrity. It is apparent that the original proceedings offered in evidence did not comply with the statute. The record shows that the petition was filed May 21st; the order for hearing was made May 22d to be held May 23d at 4 o’clock p. m. This hearing was had 24 hours before the time fixed in the order, and the respondent was declared insane and committed to an asylum. Whether this was purposely done or not we cannot say,, but it is significant that this order determining insanity was made on the date and at the hour the medical experts were required to report, by an order which recited that this was the time fixed for the hearing of the application. This order is shown to be void because made without jurisdiction. Eespondent was declared insane, and committed within 24 hours after the husband’s petition was filed. To hold this to be an orderly judicial proceeding would be a travesty upon the administration of justice. No reason for such remarkable haste is even offered, . This respondent was not a raving maniac. Her husband in his petition alleged “that [she] has delusions; thinks somebody is trying to kill her, and worries about members of the family; thinks that they have been injured and has other delusions ” — as the reasons for applying to the court for an adjudication of. insanity. The court was in error in not excluding from the case this order of adjudication of insanity and commitment to the hospital for the insane.

The petition for restoration to soundness of mind made by respondent in 1907, and the order discontinuing such proceedings, were offered in the case at' bar as part of petitioner’s showing of the insanity of respondent. The objection made was that they were immaterial and irrelevant. Petitioner insists that they were material and relevant to show that respondent is estopped from making objection to the proceedings and order declaring her insane. An admission of insanity can never fix the status of unsound mind in the person making the admission. The law prescribes the only way a determination of insanity may be declared.

It is doubtful whether in any case, where no rights of innocent third parties intervene, any conduct of any person will estop him from questioning in any proceeding the regularity and determination of his insanity. The statute providing for proceedings to secure an order of restoration of soundness of mind after one has been adjudicated insane is not mandatory. It is permissive merely. Section 1943, 1 Comp. Laws. The proceedings begun and discontinued under the restoration act were not material or relevant to the issue, and should not have been admitted. The doctrine of estoppel is not applicable.

All persons are presumed to be sane, and in every proceeding the burden of proving insanity rests upon the one challenging the sanity of the individual. It is always a question to be tried out in the proceeding then pending where it was raised. It is intimated that this was a collateral proceeding in which the regularity and validity of the adjudication of insanity could not be attacked. Whether this is, strictly speaking, a collateral proceeding, we do not determine. It is sufficient answer to the argument to say that jurisdictional defects which appear upon the face of the proceedings may be raised at any time between the parties, even in a collateral proceeding, when the rights of innocent third persons are not concerned. Palmer v. Oakley, 3 Doug. (Mich.) 433 (47 Am. Dec. 41), and cases cited and digested. Gillett v. Needham, 37 Mich. 143, and footnote; Breen v. Pangborn, 51 Mich. 39 (16 N. W. 188).

The proceeding leading to an adjudication of insanity is not an adversary proceeding. It is. a proceeding in the interest of the public to protect deficient citizens. It is therefore not a proceeding where any act or admission of respondent could prejudice an adverse party. The evidence objected to should not have been admitted.

Petitioner, then, is left to rely entirely upon the cross-examination of respondent for any proof of her alleged insanity. There was no proper evidence in the case to go to the jury at the time petitioner rested. At that time a motion to dismiss the proceedings, if made, should have been granted.

Unless we find some evidence tending to show respondent insane contained in her cross-examination, petitioner must fail in these proceedings. We have examined her testimony to discover such evidence. We find her a woman acquainted with business affairs, one who has intelligently dealt in stocks, and who understands how and when to buy, and gives the reasons therefor. She knows her property and her transactions relative to it. The vigorous cross-examination by counsel for petitioner continued for several hours, with the purpose of showing her insane condition. We think that in this there was a failure. It shows more knowledge of affairs, better understanding of questions asked, and less confusion in the answers, than like examination shows of the average witness in court. We do not discover in this record any evidence of respondent’s mental incapacity, and we have all such parts of the record certified which are necessary to determine the questions raised. Petitioner produced no lay witness or medical experts, and without doubt the jury were influenced by this improper proof, and felt as did the judge of probate in his statement in his finding offered by petitioner and received in evidence in Exhibit A. This is quoted to show the effect of the adjudication of insanity allowed in evidence upon the ordinary mind. He said:

“I find that Gertrude Phillips at the present time has sufficient sense and judgment to transact the ordinary business affairs of life, and I should not appoint a guardian for her person and estate on the! parol proof presented at this time; but the records of this court show that on May 22, 1902, she was adjudged insane, and this decree has not been set aside by an order of restoration as provided for by statute.”

The court was in error in not charging the jury in favor of respondent as requested. •

The judgment of the circuit court is reversed, and a new trial granted. The respondent and appellant will recover costs of both courts against the petitioner.

Blair, C. J., and Grant, Montgomery, and Brooke, JJ., concurred.


text:
    DIME SAVINGS BANK v. FLETCHER.
    Fraud— Agency — Corporate Officers — Statutory Reports.
    False statements of the condition of a corporate business, signed by an officer who was likewise secretary and director of the Fletcher Paper Company, defendant, which held stock in the corporation, were filed with the secretary of State. The complainant made a loan to the defendant Kenny, upon his note, accompanied by stock of the reporting corporation as collateral, relying on ratings obtained from mercantile reports that were made from the statement on file. Upon obtaining the loan the stock held by the Fletcher Paper Company was purchased by defendant Kenny, and the note being unpaid, the corporation becoming insolvent and its stock valueless, complainant filed a bill to have a trnst declared in the proceeds of the loan in the hands of the Fletcher Paper Company. Held, that the complainant is entitled to the relief prayed as for a fraud committed in behalf of the Fletcher Paper Company.

      Appeal from Wayne; Rohnert, J.
    Submitted May 3, 1909.
    (Docket No. 1.)
    Decided September 21, 1909.
    Bill by the Dime Savings Bank against Allan M. Fletcher, the Fletcher Paper Company, and others, to cancel a loan obtained by fraud, for an accounting, and the establishment of a trust. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.
    Beaumont, Smith & Harris, for complainant.

      Russel, Campbell, Bulkley & Ledyard, for defendants Fletcher and Fletcher Paper Company.
   Brooke, J.

The bill in this ease is filed to rescind and cancel a loan of $15,000 fraudulently procured to be made November 27, 1905, by the complainant to George F. Kenny; also, to cancel the notes given for said, loan and to cancel an assignment of certain certificates of corporate stock deposited as collateral therefor; also, to declare the proceeds of the loan a trust fund in the hands of all defendants who received it, and to obtain an accounting therefor and repayment thereof; also, for discovery by defendants Allan M. Fletcher and the Fletcher Paper Company as to which of them finally received the money, or, if both received it, in what proportion. The defendants Allan M. Fletcher and the Fletcher Paper Company filed a joint and several answer denying the material averments of the bill. The defendant Beach filed an answer admitting some allegations of the bill and left complainant to its proofs as to the remainder. A decree was entered dismissing the bill, from which decree complainant appeals.

The facts involved in controversy are, in brief, as follows: Prior to November 14, 1905, the Fletcher Paper Company of Alpena was the owner of $15,000 par value of the stock of George F. Kenny Paper Company of Detroit. The Kenny Paper Company was also acting as selling agent for the Fletcher Paper Company in marketing its products. The current indebtedness between the two companies varied from month to month, and the relations between the two companies were not entirely satisfactory to the Fletcher Paper Company in November, 1905. Kenny was slow in making remittances and settlements for the various papers shipped to his company by the Fletcher Paper Company. Mr. EL M. Campbell, counsel for the Fletcher Paper Company, advised it that it would be wise to investigate and see how the Kenny Paper Company stood. Consequently one Victor, the treasurer, and Allan M. Fletcher, the secretary, of the Fletcher Paper Company, on November 14, 1905, came from Alpena to Detroit for the purpose of making such inquiry. They went to the office of the Kenny Paper Company and took up with Kenny the general conditions of his business, and during the conference EE. M. Campbell, their counsel, was called in. They insisted upon an examination of the books of the Kenny Paper Company, which Mr. Kenny refused to permit, giving various evasive reasons why such an examination could not at that time be made. Finally Kenny stated that, if the Fletcher Paper Company did not like the way he ran the business, he would buy its stock at par, #15,000, letting the Fletcher Paper Company collect a $3,000 dividend, and that he would sell the stock to some other people in the paper business. After some negotiations Kenny agreed to add the amount of the dividend to the purchase price of the Fletcher Paper Company stock, making the entire price $18,000. Thereupon an agreement was entered into between the Fletcher Paper Company and Kenny to the effect that he should pay $18,000 for the 1,500 shares of stock held by that company, on or before November 25, 1905. On Monday, the 27th day of November, Kenny sent over to Mr. Campbell a certified check for $18,000 and received in return the Fletcher Paper Company stock in the Kenny Paper Company indorsed in blank. It appears that between the 14th day of November and the 27th Kenny made application to the complainant for a loan of $15,000 upon his individual note for that amount, to be secured by the $15,000 of stock in the Kenny Paper Company as collateral. This application was refused by the complainant upon the ground that the Kenny Paper Company was a close corporation and its stock not readily salable upon the open market. The complainant demanded, in addition thereto, an indorser, which indorser Kenny secured in the person of defendant Beach. After investigation of the commercial reports as to the financial standing of the Kenny Paper Company and Beach, the complainant accepted the loan, and on November 27th issued to Kenny its cashier’s check for $15,000, payable to his order, receiving therefor two promissory notes of $7,500 each, payable, respectively, in two months and in four months, indorsed by Beach, and later the $15,000 par value of Kenny Paper Company stock indorsed in blank was deposited as collateral therefor with complainant.

At the time of negotiating the said loan, Kenny represented to the officers of the complainant that the stock he was about to purchase was really worth much more than par, to wit, about $4,000, that the business of the Kenny Paper Company was prosperous, and that it had a large surplus of assets over liabilities. These representations were shown upon the trial to have been absolutely false. The notes were not paid at maturity, and on the following January the Kenny Paper Company became insolvent, and its assets were wholly insufficient to meet its commercial liabilities, so that its capital stock was of no value whatever. Defendant Allan M. Fletcher, besides being the secretary of the Fletcher Paper Company, was the vice president of the Kenny Paper Company, and as such had signed an annual report of the George F. Kenny Paper Company, which was filed May 6, 1904, in which it was represented that he (Allan M. Fletcher ) was the owner of $15,000 par value of the stock of said George F. Kenny Paper Company, that the amount of capital actually paid in in cash was $80,000, and that the then net value of its assets over liabilities was upwards of $70,000. The complainant failed to protest the notes at maturity, thereby releasing defendant Beach, but thereafter Beach entered into a contract undertaking to pay the same and arranged with the bank to commence the present suit in its name but for his benefit. The suit was launched in the name of the bank by counsel for Beach; but Beach himself afterwards became insolvent, and it has been prosecuted on behalf of the bank.

At the time of the hearing in the court below, the complainant showed the false and fraudulent representations of Kenny in reference to the value of the stock, and that in making the loan it had relied in part upon said false representations. It showed, further, that in part it relied upon the statement of the commercial agencies which gave the Kenny Paper Company a rating of from $75,000 to $100,000; and, further, that said rating was based in part upon the report already noticed of said company filed with the secretary of State. It further showed that the said report was incorrect in several particulars, especially as to the amount of capital paid in in cash. The defendants offered the testimony of Victor, treasurer of the Fletcher' Paper Company, and of H. M. Campbell, its counsel, to the effect that the defendant had no knowledge of the real financial condition of the Kenny Paper Company and made the sale of the $15,000 of stock in question in the ordinary course of business. The defendant Allan M. Fletcher was in court during the hearing of the case below, but was not placed upon the stand by either the complainant or the defendants.

The third ground urged by the complainant as the reason why it should prevail is as follows:

“ Because the $15,000 was loaned to Kenny in part reliance upon the supposed truth of the Bradstreet rating of the Kenny Paper Company, which rating was based upon an untrue financial statement signed by Allan M. Fletcher.”

Other grounds for relief are urged, but the foregoing is the only one considered by the court.

As before noted, the report set out that the capital stock of $80,000 was- paid in in cash. The record shows that in fact it was paid as follows: Two post-dated checks aggregating $7,500; notes of subscribers aggregating $22,500; $25,000 was paid by the transfer of the physical assets of the paper business conducted by Kenny and $25,000 by alleged good will of that business. Subsequently $7,500 of the $22,500 notes was paid; but when the company became bankrupt its reported assets consisted of $15,000 of the notes originally given for capital stock; $7,500 of these notes were the notes of Kenny and were worthless; $5,000 was the note of one Armstrong, and was given upon condition that it should be paid only out of the earnings. It clearly appears from the record that the rating of the Kenny Paper Company given by the Bradstreet Company was based upon this report. This report was obviously false and misleading. It was signed by Allan M. Fletcher as one of its directors and certified to by him as being—

“A true statement of the condition of the company, together with the names and addresses of the stockholders and the number of shares held by each.”

We do not attach much importance to the fact that the report stated that Allan M. Fletcher was the owner of the 1,500 shares of stock in the Kenny Paper Company; whereas, in fact, the Fletcher Paper Company was the owner of 1,200 shares of the stock and 300 shares still stood in the name of Kenny, it being apparent from the record that the entire 1,500 shares were owned beneficially by the Fletcher Paper Company, and that the acts of Allan M. Fletcher in the premises were performed by him as its agent and for its benefit, for which it should be held accountable. Representations made by a person in business to a commercial agency are presumed to have been made for the purpose of obtaining credit, and we are of opinion that the fact that the representations in the case at bar were made in the report to the secretary of State, and thus indirectly to the commercial agency, is of no consequence.

See Emerson v. Spring Co., 100 Mich. 127 (58 N. W. 659), where this court said:

“It sufficiently appears that Dun’s reports were based upon the sworn reports of the company to the secretary of State, that both the plaintiffs in attachment extended credit upon the strength of these reports, and we are satisfied that these statements of the company were false and could have been made with no other purpose than that of establishing a false credit.”

In Silberman v. Munroe, 104 Mich. 352 (62 N. W. 555), this court, in considering the same question, used the following language:

“ The report (to the secretary of State) was very clearly intended as a means of furnishing information to those dealing with the corporation’; and when parties deal with the corporation upon the strength of such report, acquired through the usual channels, they have the right to rely upon the fairness and honesty of the statement.”

In Genesee County Sav. Bank v. Barge Co., 52 Mich. 170 (17 N. W. 793), this court said:

“We think a person furnishing information to a commercial agency as to his means and pecuniary responsibility is to be presumed to have done so to enable the agency to communicate the same to persons interested for their guidance in giving credit to him, and, so long as such intention exists and the representations reach the persons for whom they were intended, it is immaterial whether they passed through a direct channel or otherwise, provided they were reported by the agency as made by the party.”

In Mooney v. Davis, 75 Mich. 188 (42 N. W. 802, 13 Am. St. Rep. 425), the court said:

“We further think the testimony tending to show defendant Dudley’s approval of these statements was so recent before the sale in question that he must be held bound thereby, or, at least, if there had been any material change in his financial standing after the statements were given, he should have notified the agencies to whom the information was given, that persons with whom he had commercial dealings should not be misled as to the extent of the credit they might safely give. These agencies have become almost a necessity in the transaction of a commercial business, and the rules by which they are governed and the information they gather and impart are well known to business and commercial men generally, and such information is perhaps more frequently relied upon among such men than that obtained from all other sources, and the courts cannot shut their eyes to these facts, and the changes in Dudley’s business relations we do not think were such as affect the question now under consideration. The responsibility and the amount of assets over liabilities available for business purposes, or from which money could be realized for the exigencies of business, were the important questions presented to the creditors, and upon which they made sale of their property.”

See, also, Hinchman v. Weeks, 85 Mich. 535 (48 N. W. ?90).

The record does not disclose under what circumstances the signature of Allan M. Fletcher was obtained to the false report to the secretary of State; nor, under the facts in this case, is it important whether the untruthful representations contained in said report were made by him with knowledge of their falsity or a careless disregard as to their truth or falsity. Such information is demanded by the law from corporate officers for the very purpose of affording the general public, or that portion of it about to enter into contractual relations with such corporation, with accurate and honest information respecting its financial standing. It must be presumed that all officers in making such representations know this fact. Stripped of all details, the situation is, in brief, as follows: The complainant, relying in part upon the false statements contained in the report to the secretary of State, made by an officer of the defendant, the Fletcher Paper Company, parted with $15,000 and received nothing in return; whereas, the Fletcher Paper Company, as a result of the transaction, is the possessor of $15,000, for which it parted with nothing of value.

The decree of the court below will be reversed, and a decree will be entered in this court against the defendant the Fletcher Paper Company in accordance with the prayer of the bill of complaint.

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


author: McAlvay, J.

text:
      In re SAIER’S ESTATE. APPEAL OF ZIMMER.
    1. Appeal and Error — Saving Questions for Review — Necessity of Exceptions.
    Failure to except to the submission to the jury of questions arising on appeal from the disallowance of an administrator’s account, precludes a review of the point on writ of error.
    2. Same — Findings of Court.
    Exceptions to findings of the trial court, too general to indicate the ground of objection, will not be considered on error.
    S. Executors and Administrators — Final Account — Negligence — Interest.
    Evidence that the administrator neglected to collect rent and failed to deposit funds of the estate where they might draw three per cent, interest, but mingled them with his own, sustains a finding by which the rents and interest on semi-annual balances are charged to him.
    4. Appeal and Error — Consolidation of Appeals.
    Where both parties bring error from a judgment, the appeals should be heard as one case.

      Error to Ingham; Wisner, J., presiding.
    Submitted May 6, 1909.
    (Docket No. 5.)
    Decided September 21, 1909.
    John J. Zimmer presented his final account as administrator with the will annexed of the estate of Elnora Saier,- deceased. The. account was allowed in the probate court, and Charles Saier and others appealed to the circuit court. A judgment allowing the account in part only is reviewed by the administrator on writ of error.
    Modified and affirmed.

      John J. Zimmer {Black, Reasoner & Hayden and Frank L. Dodge, of counsel), in pro. per.

      O. J. Hood, for appellees.
   McAlvay, J.

The appeal in this case, taken by both parties to the controversy, from the order of the probate court of Ingham county, was heard in the circuit court for said county before Hon. Charles H. Wisner, presiding, and a jury which had been asked for by one of the parties. After hearing all the evidence, the court submitted to the jury in writing eight issues for them to find and to answer each in writing. The jury agreed upon a verdict, answering all the special questions. The several appeals were consolidated by consent of the parties and the order of the court. Thereupon the court made a finding of the facts, restated the account, and entered judgment thereon. Objections and exceptions were taken to these findings and determination of the court, errors were duly assigned by both parties, and each has taken a writ of error. The cases should have been consolidated and heard together in this court. The appeal of those interested in the estate has been heard and decided. It is reported as Zimmer v. Saier, 155 Mich. 388 (119 N. W. 433).

The facts there stated are sufficient for the purposes of this case, except such specific matters as may require statement as they are considered. Reference is therefore had to the opinion of this court in Zimmer v. Saier, supra. The decision in that case is res adjudicata upon certain matters in this case. The cases are in effect parts of the same appeal, and, as intimated, should have been heard and decided as one case. Such would have been the action of the court had the situation been understood. The court will consider this case and determine the questions not discussed in the former opinion. Such course can work no hardship upon the contestants whose errors assigned were fully considered.

In this case the administrator with the will annexed has assigned error upon the submission of the case to the jury. We do not find in the record any exception covering this assignment of error. It therefore cannot be considered.

The remaining assignments of error relate to the account in question, and refer to claimed errors of the court in admitting, and refusing to allow, evidence relative to certain items, to the action of the court in refusing the administrator certain credits, and in surcharging his account with certain amounts in the restatement of the account made by the court, and to the judgment entered by the court against the appellant, and the sureties on his appeal bond. This final account of the appellant is of great length, and much time has been spent in giving it and the evidence in the record relative to the disputed items, and those amounts which the appellees claim should be charged to the administrator, such examination as has been necessary to a proper understanding of the facts in relation to the questions raised.

Some of the exceptions to the findings of the court are too general. What the objection may be is not indicated. To go into detail as to the others would be of no benefit to the profession. Only such as require special consideration .will be referred to.

The charges made by appellant for professional services rendered by himself and others disallowed by the trial court are referred to in the opinion in the other case as unjust and illegal charges. There is no question that appellant had no authority to make them, and they were properly rejected.

The decision of the court on the other appeal, disallowing $400 paid to counsel, disposes of that item, and is res adjudicata in this case.

The trial court surcharged his account with certain items for uncollected rent, interest on a certain claim, interest and charges on taxes neglected, and interest on semi-annual balances. We think such finding was warranted by the evidence. Appellant had failed to make. deposit as he should have done, and had commingled the estate with his own funds, and thereby lost to the estate 3 per cent, on semi-annual balances. The rent charged was lost by his neglect, and the interest was on a claim he was ordered by the court to pay, which order he neglected to obey. The foregoing shows the character of the items disallowed or surcharged in this case by the trial court. Many other items were disallowed, and in tracing them in the record we find that in each instance the court was correct in so doing. By the restatement of the account according to his findings the court charged appellant with the sum of $6,203.70, credited him with $4,190.99, leaving a balance charged to him of 12,012.71. Adding to this balance the amount of $400, held in the other case to have been improperly allowed, and $94.50 found in that case to be a charge against him for interest, the balance due the estate from appellant is found to be $2,507.21.

The judgment of the circuit court, except as modified, is in all respects affirmed, with costs in favor of the appellees, and against the appellant personally.

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


text:
      In re CAMERON’S ESTATE. APPEAL OF SMITH.
    1. Guardian and Ward — De Facto Guardian.
    A guardian defacto is subject to all the duties and liabilities of a duly appointed guardian.
    2. Same — Landlord and Tenant.
    Where real estate is controlled and cultivated by a defacto guardian, it should be treated as a trust estate, since hardship might be worked by treating the guardian as a lessee.
    3. Same — Life Tenant — Real Property — Insurance—Duty to Remainderman.
    Funds received from insurance taken in the guardian’s name, c on a barn of which the title was held by the ward as a life tenant, are properly invested in reconstructing the building, and should be charged to the estate, on the theory that an equitable apportionment of the fund between the life estate and remainder was made by the disbursement.
    4 Same — Final Account — Improvements to Farm Property.
    The expense of improvements to real estate, shown to be necessary to good farming and to the enjoyment of the life estate, and to have improved the property materially, should be credited to the guardian on a final accounting.
    5. Same — Expenses and Disbursements.
    Reasonable expenditures for cultivating the farm should be credited to the guardian.
    6. Same — Household Expenses.
    Twenty dollars per year, used in purchasing household necessities, is a proper and reasonable charge by a guardian who furnishes personal care and a home for the ward.
    7. Same.
    Labor of the husband of the guardian in cultivating the farm is properly charged to the estate.
    8. Same — Nursing and Personal Care.
    A reasonable charge for attending, nursing, and caring for the ward should be charged to the estate.
    9. Same — Charges to Guardian’s Account.
    Where childreh of the guardian lived on the farm, their board should be credited to the estate.

      Error to Newaygo; Palmer, J.
    Submitted May 3, 1909.
    (Docket No. 65.)
    Decided September 21, 1909.
    Susie Smith presented an account as guardian of Hiram Cameron, an incompetent. The account was disallowed in the probate court, and she appealed to the circuit court. A judgment dismissing the appeal is reviewed on writ of error.
    Reversed, and judgment ordered to be entered in circuit court.

      Turner & Turner (Cross, Lovelace & Loss, of counsel), for appellant.

      George Luton (Albert G. Day, of counsel), for appellee.
   McAlvay, J.

In an opinion handed down (In re Cameron's Estate, 157 Mich. 398 [122 N. W. 278]) will be found a statement showing the facts relative to this controversy. The appellant, as is held in that opinion, was guardian de facto of Hiram Cameron, and he had the undoubted right to have an accounting of her administration. This case is concerned only with that accounting. Such accounting was had in the probate court, and an appeal was taken by the acting guardian from the order made thereon to the circuit court, where the small balance of the account in her favor as found by the probate court was disallowed, and the appeal dismissed, Prom this order and judgment the case is brought to this court upon a writ of error by the acting guardian. In the case above referred to the order of the probate and circuit court revoking and canceling the appointment of the guardian left the matter of the accounting to be determined upon the record in this case. The findings and judgment of the circuit court must be considered as an allowance of the account as restated and allowed by the probate court, except as to the balance of $24.50 there found to be due the appellant. Therefore, in discussing the errors which are assigned, we will consider the original account and the restatement of the probate court as the basis for the judgment appealed from.

This appellant has already been held by this court to have been de facto guardian of this estate. This defacto guardian will be held subject to all the duties and liabilities of a guardian. There is no dispute that this is the law governing the acts of such guardians. 15 Am. & Eng. Enc. Law (2d Ed.), p. 123;

The theory of considering this guardian a lessee from year to year, acted upon by the probate court in stating and passing upon her final account, and which the court below adopted, was one not applicable to this case, and one which might work hardship to either or both parties. The rule is that the rights of a de facto guardian will be recognized so far as to entitle him to an equitable credit for expenditures which were made for the ward, and which would have been allowed had the guardian been a legal one. 15 Am. & Eng. Enc. Law, supra.

It does not appear that appellant in this case did not undertake the guardianship in good faith. The irregularities which made her appointment invalid doubtless were not of her making. She was not a guardian without any color of right. Nevertheless she must be held to a strict accounting of all her acts and doings relative to this estate. She will be charged with all of the property which came into her hands, all receipts from all sources during the period covered by the accounting, and be given credit for property on hand and for all lawful disbursements. The guardian’s account is itemized, showing all receipts and all disbursements, and also showing all personal property on hand. As to this part of her accounts, and of their accuracy, there is no dispute.

Immediately after her supposed appointment, she moved with her family upon the farm occupied by her ward, and took possession of the personal property, of which an inventory was taken. The ward was a tenant for life of the real estate. The barn situated on this land was destroyed by fire caused by lightning. There was insurance in the name of the guardian on the building and on the contents, consisting of hay, grain, and other personal property. The loss was adjusted and paid, $400 total loss on barn and $407.46 loss on contents, consisting of 58 tons of hay, 200 bushels of oats, and 87 bushels of wheat. The amount of this insurance has been charged by the guardian against herself as cash received.

Complaint is made that the court was in error in the disposition made of this insurance item. It was error upon the theory of a leasing, for in that case the hay, grain, and produce belonged to the lessee, and she would be personally entitled to the insurance recovered upon her property destroyed. And upon any other theory we think there was error in the disposition of this item. It was correctly credited to the estate, but the court refused to charge against the estate the amount expended by the guardian in building a new barn with this money, on the ground that it went to the benefit of the inheritance. It is included in a long schedule of items amounting altogether to the sum of $1,012.08, all of which were disallowed upon the same ground. The argument is made in this court on behalf of the ward that the entire insurance belonged to the life tenant, and, although he has not appealed, it is asserted that the court was in error in holding otherwise. This is a dispute between the de facto guardian and the ward. The company paid the insurance promptly. The barn was a total loss and insured for more than the interest of the life tenant. The authorities are not harmonious upon the question here involved. They agree that, where no requirement is contained in the instrument creating the life estate, the life tenant is not bound to insure the interest of remaindermen — also, that either party may insure for his own benefit. 16 Cyc. p. 632. A line of authorities holds that neither life tenant nor remainderman has any claims upon the proceeds of the policy of the other; that the contract of insurance is a personal contract of indemnity against loss, and the sum paid is in no proper or just sense the proceeds of the property. Harrison v. Pepper, 166 Mass. 289 (44 N. E. 222, 33 L. R. A. 239, 55 Am. St. Rep. 404), and cases cited. A well-considered case taking a contrary view of the question is Green v. Green, 50 S. C. 514, 532, et seq. (27 S. E. 959, 46 L. R. A. 525, 62 Am. St. Rep. 851-854), which holds that a trust arises in favor of remaindermen where the life tenant recovers the value of buildings destroyed by fire. The court said:

“We therefore think that sound public policy requires that any money collected by a life tenant on a total loss by fire should be used in rebuilding or should go to the remainderman, reserving the interest for life for the life tenant.”

See 8 Ballard on Real Property, § 386, and cases cited. See, also, Hopkins v. Keazer, 89 Me. 347 (36 Atl. 615). In the case at bar the de facto guardian was one of the remaindermen, and from the record it may be inferred that she intended to provide protection for them. The de facto guardian in this case must be considered as trustee for the life tenant in taking this insurance as such guardian. She received from the insurance company and held the full value of the barn in her hands, and put it to a lawful and necessary use. It would certainly be inequitable to give this money to the ward, and much more inequitable to charge it to the de facto guardian, who in good faith has used it in the interest of both the ward and remaindermen, having made an equitable apportionment of the fund by her action. In equity this credit should have been allowed to her. See Convis v. Insurance Co., 127 Mich. 616 (86 N. W. 994).

The other items in this schedule for which she was disallowed credit were for building fences, hoghouses, corn-crib, and digging wells, for lumber, brick, cement, and labor used and employed in constructing the same, and for some general repairs. The record shows that, when the guardian was appointed and entered upon her supposed duties, this farm was run down. There were no wells, and it was necessary to carry drinking water two miles. There were no fences, and no proper places to keep and care for the stock and produce. About $100 per year has been expended for these purposes, which, in connection with good husbandry, has increased the value of the farm in an amount from $1,500 to $3,000 and the rental value $100 a year. This increased value has directly benefited the ward, and will continue to benefit him during the remainder of his life expectancy of 31 years. The record also shows that these expenditures were absolutely essential and necessary to the enjoyment of the life tenancy. It was good, business judgment on the part of the guardian who acted in good faith, and she should have been allowed these disbursements. The court was in error in disallowing them.

An itemized schedule amounting to $494.19 was disallowed by the court under the theory of a leasing, because they pertained to the cultivating and carrying on the farm and included items of family expense. The farming was carried on for the benefit of the ward. It was his source of income. It is certain that the record shows that the farming was conducted in a profitable manner. We are to determine whether these items should be credited to the guardian. In so far as they pertain to cultivating the land and carrying on the farming, they are proper charges, and amount to $375. The household expenses charged were not heavy, and amounted to $20 per year, showing that but little was required outside of the products of the farm. This amount was not unreasonable to expend for this purpose, and was for flour, meat, and other necessaries. They should have been allowed.

There were some items outside of the general receipts and disbursements in this account which were not allowed. These consist of (1) a charge for services of Leon Smith, husband of the acting guardian, employed by her in working upon and managing the farm for 72 months at $30 per month; (2) an item charged for her personal services as guardian and for nursing and caring for the ward for 62 months at $10 a month. The first item was disallowed and stricken out and the leasing theory substituted. There is no dispute concerning these services or the value of them. It is not shown that like services could have been procured for less money. Mr. Smith used his own heavy team to do the heavy work, and no charge is made for its use. These services were necessary to the proper working of the land. The item was a necessary expense and should have been allowed. The acting guardian should be allowed reasonable compensation for care of the ward, who was her brother. He was quite deficient physically, being deaf and nearly dumb. He was given to the use of intoxicants, and was frequently sick. She attended to his wants during these years, and the record shows that she did it well and with patience and tenderness. Her charge of only $10 a month is reasonable, and it is allowed.

It is claimed that the board of the children of the Smiths should be considered in adjusting the charge of Mr. Smith for his services. The husband, acting as hired man, and the wife, devoting her time to her brother and the household duties, were each entitled to board and lodging. The children cannot be so considered. From the evidence we determine that on the average two of the children lived on this farm during the six years. A fair charge for board and lodging would be at the rate of $150 per year each for two children for the entire time, which would amount to $1,800. From this should be deducted $100 a year for produce brought to the farm by Mr. Smith and used in support of the family and the ward. This would leave $1,200 to be deducted from the item of Mr. Smith for labor and services. None of the other items of this account are disputed.

The final account presented will be stated and allowed in accordance with the foregoing opinion, which, if footings are correct, will leave a balance to the credit of the defacto guardian of $1,365.65. The personal property on hand at the time of the account rendered, amounting to $1,434.34, showing an increase of $1,124.47 over the amount received, belongs to the ward, and, if not already delivered to him, is held by Mrs. Smith subject to his order, or the order of the representative of the ward duly appointed by a court of competent jurisdiction, and on the order of such court.

The judgment of the circuit court is reversed, and the cause will be remanded to the circuit court, where a judgment will be entered in due form, in accordance with this opinion, in favor of the appellant for the amount above stated and against the petitioner and ward, Hiram Cameron, and a certified copy of such judgment will be transmitted to the probate court of Newaygo county, Mich., and appellant will recover costs of the circuit and Supreme courts, to be paid out of the estate.

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


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    SHEPARD v. PLATT.
    1. Intoxicating Liquors — Liability for Assault — Bondsmen of Liquor Dealers.
    Evidence that plaintiff was assaulted in a saloon by one of the customers who had .been drinking intoxicants and was under the influence of liquor, sustains a verdict against the saloonkeeper and his sureties.
    2. Trial — Argument of Attorney.
    Where counsel make an argument in good faith, based on the testimony, and the verdict was in accordance with the weight of evidence for a moderate amount, the refusal of the trial court to grant a new trial is warranted.
    Error to Lenawee; Lockwood, J.
    Submitted May 4, 1909.
    (Docket No. 124.)
    Decided September 21, 1909.

      Case by John Shepard against Charles Platt, principal, and James F. Burton and Andrew B. Berry, sureties, under the civil-damage act. A judgment for plaintiff is reviewed by defendants on writ of error.
    Affirmed.

      Herbert B. Clark, for appellants.

      Smith, Baldwin & Alexander, for appellee.
   McAlvay, J.

Plaintiff recovered a judgment against defendants in a suit brought under the statute, upon a retail liquor dealer’s bond, wherein Charles Platt was principal and the other defendants were sureties, for personal injuries received from an assault made upon him by Wesley Kirk, a person in the habit of becoming intoxicated, while intoxicated with liquors furnished and sold to him by defendant Platt, his clerks and agents, at his place of business in the city of Adrian in this State. In denying a motion for a new trial, the judge presiding made a statement of the facts in the case which is adopted by us:

“ The plaintiff went to the barroom in the hotel owned by defendant Platt for the purpose of securing a pint of whisky, to be used at his home in the treatment of his wife, who was then being confined. The plaintiff stepped into the barroom and saw John Kirk standing by the bar with another man whom the plaintiff did not know. The second man was Wesley Kirk, a brother of John Kirk. After securing the whisky, the plaintiff placed the bottle in a basket containing groceries, which he was taking to his home, and started to leave the building. It appeared that the plaintiff and John Kirk had previously had some disagreement; that, as the plaintiff passed from the barroom into the poolroom, John Kirk stepped in front of him and engaged him in a conversation, and, according to plaintiff’s testimony, he finally struck at plaintiff; and that the plaintiff held up his arm with the basket of groceries upon it and attempted to ward off the blow, and at the same time backed away from his assailant. While the plaintiff was backing away from John Kirk, Wesley Kirk picked up a billiard cue and struck him from behind, over the head, crushing his skull. The injury was a very serious one. The testimony showed that Wesley Kirk had no acquaintance with the plaintiff, and did not know of the trouble between plaintiff and his brother John. * * * It was the claim of the plaintiff that at the time Wesley Kirk struck this blow he was under the influence of liquor purchased from defendant, and that the defendant was liable for the damages resulting because he had sold and delivered this liquor to Wesley Kirk, who was a man in the habit of becoming intoxicated.”

Defendants upon writ of error ask for a review of the case and a reversal of the judgment on account of error committed on the trial.

We will consider the errors assigned which are discussed in defendants’ brief. Defendants contend that a verdict should have been instructed for want of evidence. It appears from the record that the assault on plaintiff by Wesley Kirk is not a disputed fact in the casé. John Kirk, his brother, testifies that Wesley struck plaintiff. Two other witnesses called by defendants testify that they saw the blow struck. There is also no dispute but that the injury was a serious one. It is admitted also that Kirk drank whisky in that saloon shortly before the assault. The disputed facts are that the Kirks were not persons in the habit of becoming intoxicated, that they were not intoxicated on that day, and that the drinks they procured there at the time had nothing to do with the assault on plaintiff. The court would not have been justified in directing a verdict in this case for defendants! It was clearly a case for the jury to determine upon the facts.

The correctness of the charge of the court in submitting the case to the jury is not questioned. The motion for a new trial, which was denied, was urged for the reasons that the verdict was against the law and evidence, that it was against the weight of the evidence, and because of prejudicial argument of plaintiff’s counsel to the jury. We have already said that there was evidence in the case to submit to the jury, and we add that the verdict of the jury was not, in our opinion, against the weight of the evidence. We have examined the testimony admitted, to which defendants except, and do not find that it was erroneously allowed. No question is involved of sufficient importance to warrant giving it extended attention.

The remaining matter which requires attention relates to the argument of plaintiff’s counsel. The matter was presented to the learned trial judge on the motion for a new trial. In his written findings giving his reasons for denying it, he said, as to this matter:

“This is not all the argument, and some of the part given is removed from its context. I heard the argument, and have read that portion of it set up in the motion, and while it was a very strong argument, and one calculated to move the jury to render a verdict in favor of the plaintiff, I do not think it was unwarranted, or that it constitutes a sufficient ground fcr setting aside the verdict in this cause; * * * but, so long as arguments to juries are to be made, some latitude must be given counsel, and where the argument is honestly made, and based upon the testimony, the deductions and conclusions drawn by counsel must be allowed to go to the jury.”

In accepting this conclusion of the court, we take into consideration, as he did, the amount of the verdict found by the jury. This was an aggravated and unwarranted attack upon plaintiff by a man he had never seen before, and who was, without provocation to his assailant, knocked down with a billiard cue which crushed the skull on the side of his head. The verdict of $1,400 returned by the jury was not a large one and indicates that the jury were not prejudiced by the argument of counsel.

The judgment will be affirmed.

Blair, C. J., and Montgomery. Hooker, and Brooke, JJ., concurred.