text:
    MILLER v. TANNERS’ SUPPLY CO.
    1. Contracts — Offer and Acceptance — Construction.
    A letter from defendant to plaintiffs informing them that B. H. will deliver it several hundred cords of 16-inch wood on cars at C., and stating, “When they begin the delivery of this wood, if you will advise us of the amount which you would like to have us deliver to you we will accept your order, subject to their delivery, at $1.35 per cord on cars at ” C., and “ If you will advise us by letter, or written order, from time to time, of your needs in this line, we will be pleased to turn over such cars as they may load from time to time,” is an offer to sell such quantity of the wood as plaintiffs might desire to buy at the price quoted, subject to B. H. delivery at C. ; and an acceptance of such offer does not bind plaintiffs to take all the wood coming to defendant from B. H.
    3. Same — Sufficiency of Acceptance.
    A proposal to furnish “ 16-inch wood” coming to defendant under a contract with B. H. is sufficiently accepted by a letter in which plaintiffs agree to take “beech and maple block-wood ” where it appears that defendant’s contract with B. H. was for beeoh and maple blockwood.

      3. Statute of Frauds — Sales of Goods — Description of Goods —Extrinsic Evidence.
    Where a proposal in writing is to sell a quantity of wood coming to the seller under a certain contract, and the written acceptance is to take a certain quantity of beech and maple blockwood coming to the seller under the contract referred to, it may be shown by parol that the contract referred to covered beech and maple blockwood, though the contract created by the offer and acceptance is one which the statute of frauds requires shall be in writing.
    4. Parties — Pleading—Amendment—Formal Matters — Effect.
    A claim by defendant, in an action for breach of contract, that plaintiff partnership has changed in its personnel since the contract was made, and that plaintiffs cannot recover without showing an assignment from the original partners, which cannot be shown because not pleaded, at most entitles the defendant to ask that the declaration be amended by averring the assignment, an amendment which is a mere matter of form the failure to make which under section 10270, 3 Comp. Laws, does not entitle defendant to a reversal.
    5. Evidence — Admission—Harmless Error.
    Errors in admitting evidence the exclusion of which could not have changed the result will not be considered.
    Error to Kent; Perkins, J.
    Submitted October 15, 1907.
    (Docket No. 61.)
    Decided December 10, 1907.
    Assumpsit by Henry B. Miller and Harry E. Miller, copartners as H. B. Miller & Son, against the Tanners’ Supply Company, Limited, for breach of a contract for the sale of certain wood. There was judgment for plaintiffs, and defendant brings error.
    Affirmed.

      James J. Danhof (W. E. Ryan, of counsel), for appellant.

      Glapperton & Owen, for appellees.
   Carpenter, J.

This suit was tried in the circuit court without a jury, a finding of facts made, and judgment rendered for the plaintiffs. We quote from said finding of facts:

“First. November 18,1903, Harry E. Miller and Richard B. Yos composed the firm of Miller & Yos, with whom Henry B. Miller was associated as a silent partner. Later [January 2, 1904] Henry B. Miller purchased the interest of Yos in the business, and the firm was thereafter styled H. B. Miller & Son.
“Second. On the date mentioned, the defendant and Miller & Yos were and had been engaged in the business of buying and selling wood for and in the Grand Rapids market, and later, the firm of H. B. Miller .& Son continued in the same business.
“Third. November 19, 1903, the defendant and Miller & Yos entered into a written contract whereby the latter were to buy for a consideration and upon the terms therein expressed, a certain wood yard from the defendant company. Miller & Yos took possession of the wood yard and thereafter payments were made from time to time, as provided in the contract, either by Miller & Yos or by H. B. Miller & Son, until the full purchase price was paid, whereupon a bill of sale dated January 13, 1904, was duly executed and delivered by the defendant company to H. B. Miller & Son. .
Fourth. At the time of the execution of the contract for the sale of the wood yard, the defendant made certain representations and offers relative to certain wood it had contracted for with the Belding-Hall Co. to be delivered to it at Chippewa Lake, Michigan, which representations and offers were relied upon by the purchasers and constituted a part of the consideration which entered into the wood yard contract. These representations and offers were set forth in a communication delivered to Messrs. Miller & Son on the execution of that contract and reads as follows:
“ ‘Grand Rapids, Mich., Nov. 19,1903.
“ ‘ Messrs. Miller & Vos,
‘“City.
“ ‘ Gentlemen: We have an agreement with Belding-Hall Go. that they will deliver us several hundred cords of 16-inch wood on cars at Chippewa Lake.
“ ‘When they begin the delivery of this wood, if you will advise us of the amount which you would like to have us deliver to you, we will accept your order, subject to their delivery, at $1.35 per cord on cars at Chippewa Lake, Mich. * *' *
“ ‘If you will advise us by letter, or written order, from time to time, of your needs in this line, we will be pleased to turn over such oars as they may load from time to time.
“‘Yours very truly,
(Signed) “ ‘Tanners’ Supply Co., Ltd.,
“ ‘C. F. Young, Mgr.’
Fifth. The following letters were written to the defendant company from time to time by Miller & "Vos and by the plaintiffs, H. B. Miller & Son:
“ ‘Grand Rapids, Mioh., Dee. 9, 1903.
“ ‘Tanners’ Supply Co., Ltd.,
“ ‘Grand Rapids, Mich.
“ ‘ Gentlemen: We are now ready for a few oars of the BeldingHall wood at the price mentioned in your letter to us of 11-19 — ’03, f. o. b. Chippewa Lake.
“ ‘Yours respectfully,
(Signed) “ ‘Vos & Miller.’
“ ‘ Grand Rapids, Mioh., Jan. 25, 1904.
“‘Tanners’ Supply Co., Ltd.,
“ ‘ Grand Rapids, Mich.
‘Gentlemen: We must again ask you to commence shipping of the Belding-Hall wood from Chippewa Lake. We have made ar- ' rangements to take care of all of their wood, seven or eight hundred cords. In fact we are depending on this amount from you people and have not arranged for other wood which we might of purchased. Wish you would make a desperate effort to get this wood coming, as we have only about sixty days more for sale of blockwood this reason.
“ ‘Yours respectfully,
(Signed) “ ‘ H. B. Miller & Son.’
“ ‘ Grand Rapids, Mich., Mar, 28, 1904.
“ ‘Tanners’ Supply Co., Ltd.,
“ ‘ Grand Rapids, Mich.
“ ‘ Gentlemen: We have relied upon our arrangement with you for the Belding-Hall beech and hard maple blockwood as set forth in your letter of November 19, 1903, and have been greatly disappointed and suffered inconveniences and loss because it was not delivered during the early winter according to our understanding, as we depended upon it and had to buy at higher prices. We can still use all the wood or as much of it as you can deliver from now to April 16,' 1904, but we cannot take it after that time and season We hope you can still deliver it within the time named, although it would have been much better for us had you delivered it in December and January.
“ ‘ Kindly let us know at once how much of the wood we can depend upon.
“ ‘Yours respectfully,
(Signed) “ ‘ H. B. Miller & Son.’
Sixth. On the change of the firm name from Miller & Vos to H.. B. Miller & Son, the defendant company continued its negotiations with the latter firm as the successors of and as having been substituted for the former firm, and dealt with them as such, expressly continuing the arrangement and offer theretofore made.
“Seventh. On account of snow blockades, and for other reasons, the Belding-Hall Co. did not begin the delivery on the Chippewa Lake wood to the defendant company on the cars at Chippewa Lake until March 24, 1904. * * *
“Eighth. That March 31, 1904, the defendant company prepared for and requested the plaintiff to sign the following order, which was refused.
“ ‘ Grand Rapids, Mich., Mar. 31,1904.
“ • Tanners’ Supply Co., Ltd.,
“ ‘Grand Rapids, Mich.
“ ‘ Gentlemen: We agree to accept from you during the spring of 1904, at such time as fast as you are able to have the wood loaded, 700 to 800 cords of 16-inch fuel wood at $1.35 per cord, f. o. b. cars Chippewa Lake.
“ ‘ Inagreeingto purchase this wood at $1.35 per cord f. o. b. cars Chippewa Lake, Mich., we purchase the same subject to delays of the railroad company in providing empty cars for loading the wood, and for the delay in handling the cars into Grand Rapids after they are loaded.
‘“If you deliver to us, or upon our order, any part of the 700 or 800 cords of wood, we understand that it binds us to the acceptance of the whole amount of 700 or 800 cords, provided you wish to deliver the same, and the failure of the railroad company to deliver all of the wood in Grand Rapids as promptly as we might expect and wish cannot be used by us as an excuse for refusing to accept any of the earlier delivery.
“ ‘ Yours very truly,’
“Ninth: April 2, 1904, plaintiffs wrote the defendant the following letter:
‘‘ ‘April 3, 1904.
“ ‘Tanners’ Supply Co., Ltd.,
“ ‘ Grand Rapids, Mich.
“ ‘ Gentlemen: We are still depending on you for the Balding-Hall bloekwood. In fact we must again ask you to turn over to us this wood as last as it arrives, as we need it very much as the yard is entirely empty of bloekwood. We have also contracted a part of their wood to other parties and they are depending on it. We will take all of the wood if the last of it is turned over to us on or before April 20, 1904, but we cannot accept any after that date and season, as the weather will be undoubtedly warm by that time and the party that is to take a part of the wood will not agree to take any after the date mentioned.
“ ‘Now, gentlemen, we only wish to be fair in the matter as we have - been with you in all others, and will accept all that you can deliver up to April 20, 1904, if you will turn over all as fast as it arrives, but do not feel that we can afford to take the chance of disposing of the wood later. We sincerely hope that this proposition will be perfectly satisfactory to you, but if it is not satisfactory we will abide by our former arrangements with you of November .19, 1908.
“ ‘Yours respectfully,
(Signed) “ ‘ H. B. Miller & Son.’
Tenth. All of the wood referred to in the following paragraph was received by the defendant company and sold to various other wood dealers in Grand Rapids than the plaintiffs.
“jEleventh. That the quantity of wood delivered to the defendant company at Chippewa Lake, Mich., by the Belding-Hall Co. prior to and including April 16, 1904, was 280f cords.
“Twelfth. That the difference between the market value of like wood at Chippewa Lake, Mich., and the contract price of the wood in controversy at the time of the breach of the contract of delivery was 50c per cord.”

From these facts the trial court found the following conclusions of law:

“First. That the defendant’s letter of November 19, 1903, constituted an offer to sell to Miller & Vos such quantity of the Chippewa Lake wood as they might desire to buy at $1.35 per cord, subject to Belding-Hall Co. delivery at Chippewa Lake.
“Second. That the letter of March 28, 1904, supplemented by the letters that had preceded it, and the oral communications shown to have been had between the parties, constituted an acceptance of the offer, and constituted a binding agreement on the part of the defendant company to deliver to the plaintiffs all wood delivered to it up to and including April 16th following.
Third. That there had been no repudiation or withdrawal of the offer of November 19, 1903, prior to its acceptance of March 28, 1904, after the delivery of the wood to the defendant company by the Belding-Hall Co. had begun, and that said offer and arrangement was expressly continued and extended to the plaintiff.
“Fourth. That the memorandum order prepared by the defendant for the plaintiffs to sign on March.31, 1903, contained terms and conditions not included in the original offer of sale and its acceptance, and that the plaintiffs were justified in not signing it.
“Fifth. That the plaintiffs are entitled to recover one hundred and forty-one and 31-100 dollars ($141.31) with interest thereon from the time of said breach, amounting to one hundred and fifty-three and 31-100 dollars ($153.31).”

The most important question in the case arises from defendant’s contention that plaintiffs’ letter of March 28, 1904, is not an acceptance of its proposition of November 19, 1903. Many of the arguments advanced in support of this contention assume that plaintiffs were bound to take all the wood covered by the Belding-Hall contract. This assumption is erroneous. We agree with the learned trial judge that “defendant’s letter of November 19, 1903, constituted an offer to sell such quantity of the Chippewa Lake wood as they might desire to buy at $1.35 per cord, subject to Belding-Hall Co. delivery at Chippewa Lake.”

A more doubtful question arises however from the description of the wood as “beech and hard maple block-wood ” in the letter of acceptance, whereas in the proposition the wood is simply described as “ 16-inch wood.” Defendant argues that under its proposition it might deliver any “kind of wood fit for fuel such as beech, ash, elm and oak, as well as beech and maple.” This argument is not entirely sound. Defendant proposed to sell not any “kind of wood fit for fuel,” but part of the particular wood covered by its agreement with the BeldingHall Co. If the wood covered by that agreement was “beech and maple blockwood” — and this is a fact which might be shown by parol, though the statute of frauds required defendant’s agreement to be in writing (see Eggleston v. Wagner, 46 Mich. 610)—there is no force in the objection under consideration. In that case, plaintiffs in accepting defendant’s offer to sell “beech and maple blockwood ” did accept its offer to sell the wood described in the Belding-Hall Co. contract. It cannot be said that any witness testifies in positive terms that the Belding-Hall Co. wood was beech and maple blockwood, but there is evidence from which that inference may be drawn. For instance, defendant’s manager, in stating the objections to plaintiffs’ letter of March 38th, did not claim that it did not properly describe the wood contracted to be sold, and plaintiff Henry B. Miller testified that one reason why he declined to sign the acceptance prepared by defendant was “ that it stipulated fuel wood, which could be any kind of wood, instead of beech and maple blockwood,” thereby implying that the wood contracted was beech and maple blockwood. We therefore think that the trial court was justified in finding that plaintiffs’letter of March 38, 1904, was an acceptance of defendant’s offer of November 19, 1908.

It is contended that as defendant’s offer of November 19, 1903, was addressed to Miller & Vos, plaintiffs can base no contract rights thereon, except by obtaining an assignment from Miller & Vos, and that as such assignment is not averred in the declaration, it cannot be proved in this case. This objection under the circumstances as set forth by this record is a purely technical one. Plaintiffs, two of the partners of the firm of Miller & Vos, had to the knowledge of defendant acquired, long before suit was commenced, all the rights of the third partner Vos. The most that defendant could ask was that the declaration be amended by averring the assignment. The failure to make that amendment was a mere matter of form which under section 10370, 3 Comp. Laws, does not entitle defendant to a reversal of the judgment.

It is contended that the trial court erred in admitting certain evidence offered by plaintiffs. We do not consider this complaint because the result would not have been different had the evidence under consideration been excluded.

Judgment affirmed.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    HALL v. MILLER.
    Taxation — Tax Sales — Decree—Bill of Review.
    Where complainant did not contest the right of the State to a decree for the sale of his land for taxes, and did not for nearly two years after actual notioe that a decree had been granted and that his premises had been sold in pursuance thereof seek to set aside the sale, he cannot maintain a bill to review the decree and to restrain the prosecution of an action of ejectment, though he paid the taxes assessed for the year for whioh the sale was made and the sale was based on taxes of previous years which it is claimed were illegally reassessed.
    Appeal from Berrien; Coolidge, J.
    Submitted October 15, 1907.
    (Docket No. 63.)
    Decided December 10, 1907.
    Bill of review by Charles W. Hall against John A. Miller, Clarence J. Miller, and James B. Bradley, auditor general, to set aside a decree for the sale of certain land delinquent for taxes. Defendants Miller filed an answer in. the nature of a cross-bill to quiet title. From a decree for complainant, defendants appeal.
    Reversed, and decree entered for defendants.

      H. 8. Whitney, for complainant.

      Brown & Farley, for defendants.
   Ostrander, J.

Without leave of court and without notice to defendants ( Chancery Rule 27, Clark v. Huron Circuit Judge, 40 Mich. 166), complainant on October 24, 1905, filed a bill of review, in which it is charged that pursuant to a decree of the circuit court for the county of Berrien, in chancery, made April 24, 1902, certain lands belonging to complainant, situated in said county, were sold for taxes assessed thereon in the year 1899, bid in by the State, and, later, sold by the State and deeded to the defendants Miller; that “at the time said property was sold for taxes there were no taxes due or assessed against said property that were not paid, and that the return of said lands as delinquent and the sale of said lands for taxes as set forth in said petition * * * so far as. it affected the lands of your orator was an error and mistake.”

It is charged, also, that defendants Miller, at a date not stated, recovered judgment in ejectment against complainant in the circuit court for the county of Berrien under claim of the title evidenced by their said tax deed. Without the averment of any further facts affecting said tax or defendants’ title, the bill prays that the said decree may be reviewed and reversed and that defendants may be enjoined from further proceedings in reliance upon said tax deed or the judgment in ejectment. On motion of the attorney general, the bill was dismissed as to the defendant the auditor general with leave to complainant to make further application. Upon petition and notice, on March 27, 1906, an order was entered granting leave to file the bill of review. This petition asserts no reason fox-granting leave. The auditor general filed his answer in which it is denied that complainant has in his bill set out facts entitling him to relief. The answer of defendants Miller, filed in November, 1905, alleges that the laches of complainant, the rules of court, and the provisions of section 70 of the general tax law, alike preclude the granting of relief. They asked, also, for affirmative relief. The cause came on to be heard on pleadings and proofs and a decree was entered granting the relief prayed for by complainant, setting aside the decree of 1902, the sale, and the tax deed. The tax deed is dated and acknowledged October 17, 1903. Under date October 29, 1903, complainant was notified, by mail, of the purchase by defendants, from the State, and replied that he had a receipt for the taxes for 1899, adding, “Your client probably has bought the State’s tax for 1873-’74-’76 ‘reassessed.’ The tax was on block 33, hence invalid as the court has passed on all these years.” Other correspondence followed, in the course of which complainant wrote, “ I am now acting under advice of my attorney unless you accept my offer of compromise.”

On November 10, 1903, the notice provided for by section 141 of the general tax law was served on complainant, personally, by the sheriff, and proof of service made and filed with the register of the court. Thereafter the defendants Miller recovered, in ejectment, judgment for the land and that judgment is in force.

It appears that complainant paid the regular taxes for the year 1899 and obtained a receipt therefor, and did not pay certain taxes reassessed in that year for taxes of previous years. The jurisdiction of the court to render the decree which is attacked is not questioned. See Rice v. Auditor General, 30 Mich. 12; Flint Land Co. v. Auditor General, 133 Mich. 542, 545. It is a reasonable inference from all of the evidence that complainant in fact knew of the reassessment. He did not contest the right of the State to a decree and did not for nearly two years after actual notice that a decree had been granted and that his premises had been sold in pursuance thereof seek to set aside the sale.

The case is ruled by Hayward v. O’Connor, 145 Mich. 52, and we are required to reverse the decree below and enter a decree here dismissing the bill. See, also, Shaaf v. O’Connor, 146 Mich. 504. It is not contended in this court that if complainant is denied relief defendants should not be granted the relief prayed for in the cross-bill. A decree will be entered here quieting the title to the premises in defendants Miller. Neither party will recover, costs.

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


text:
    GILLESPIE v. GRAND TRUNK RAILWAY COMPANY OF CANADA.
    1. Master and Servant — Personal Injuries — Fellow-Servants — Safe Place to Work.
    The duty of the employer to furnish a safe place for the employe is a continuing one to be reasonably performed by inspection and repair and cannot be delegated for performance so as to relieve the master from responsibility.
    2. Same — Railroads—Safety of Roadbed — Temporary Obstructions — Duty to Remove — Fellow-Servants.
    It cannot be said, as a matter of law, that a railroad company has performed its duty of exercising ordinary care to maintain its switchyard in a condition reasonably safe for the use to which it is put by providing servants whose duty it is to inspect, repair, and remove obstructions, where it appears that piles of gravel causing injury have been allowed to remain between and outside the rails for two to four days after falling there from cars being moved about the yard.
    3. Same — Assumed Risk.
    A switchman does not assume the risk of being tripped by piles of loose gravel allowed to remain between and outside the rails of the switchyard for several days after falling there from cars being moved about the yard.
    4. Same — Contributory Negligence — Question for Jury.
    Plaintiff, a switchman, attempting to couple a moving car to a standing one, and finding that the automatic coupler would not open, stepped in front of the moving car and attempted to open the coupler as he walked ahead of the car when he stumbled on a pile of loose gravel which had fallen from another car at some previous time and was injured by the moving car. A rule of the company forbade switchmen going in front of moving cars, but a custom to disregard the rule was shown and plaintiff testified that his act was not dangerous but for the obstruction of which he had no knowledge. Held, that whether plaintiff’s negligence contributed to his injury was a question'for the jury.
    Error to Shiawassee; Miner, J.
    Submitted October 15, 1907.
    (Docket No. 52.)
    Decided December 10, 1907.
    Case by William Gillespie against the Grand Trunk Railway Company of Canada and the Grand Trunk Western Railway Company for personal injuries. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      H. Q-eer, for appellants.

      Watson & Chapman, for appellee.
   Ostrander, J.

The testimony tended to prove that, in the operation of defendant’s road, cars loaded with sand and gravel were moved, and that in the yard used for switching and for making up trains some of the material had fallen upon and across the track, forming piles or ridges from 16 to 20 inches wide at the base, narrower at the top, and high enough to stand two inches above the rails, extending between the rails and from 15 to 20 inches outside the rails. The obstructions were upon the main line track and had existed for a period of from two to four days. The yard was, otherwise, in proper conditioñ, and, apparently, unusually well surfaced. Plaintiff was employed with a night crew in switching cars. While walking, or running, in front of a moving car, adjusting an automatic coupler, he stumbled upon or in one of the piles of loose gravel and was injured. Defendants had provided for daily inspection of the tracks in the yard in which plaintiff was injured. The general competency of the section men is not questioned. Proper rules for carrying on their work had been made. The section foreman testified that it was his duty to see that this track was kept clear “ and if any sand or coal or anything else should fall off the train to see that it was removed. There were four men in my gang, and it was their duty under my instructions to keep this track in proper condition. ” He further testified:

“ The proper way to keep tracks in the yard where switching is done is to keep them clear of all obstructions and keep the track level up between the ties and between the track. That is done so that there may be nothing to cause an accident .while a man is switching. In that case if a man should go in front of a moving train there would be nothing to trip him.”

He further testified that he had, daily, gone over the track in question and had discovered no such obstructions as the testimony for plaintiff tended to prove were there.

As to the negligence of defendant. It is stated in the brief of counsel for appellants:

“The question then is under such circumstances, had the defendants failed to use reasonable care to provide a reasonably safe place in which this switchman could perform his work, because of the fact that a pile of fresh gravel, which was from four to six inches high, had fallen between the rails upon a roadbed which was level, smooth and in good condition, and over which plaintiff fell and received the injury ? ”

And in the reply brief:

“We do not at this late day deny the principle contended for by the counsel, to sustain which, many cases are cited that one of the positive duties of the master is to use reasonable care to provide a reasonably safe place in which servants may perform their work and that such duty is non-delegable. We say, however, this principle of law has no application to the case at bar.
“ The duty of removing obstructions from the defendants’ yard had been delegated to the section men. This, however, does not render them vice-principals unless the duty to be performed is what is termed a positive duty of the master. We deny that this was a positive duty.”

If the removal of material which in the course of the business carried on falls from locomotives and cars upon the tracks is a mere detail of operation of the road, undoubtedly those charged with performance of the work, as the section men, are fellow-servants of those who are required to use the premises. If, on the other hand, it is or may be a work of maintenance, reference being had to the uses to which the premises are put, it is a duty of the master and he is chargeable with knowledge of what reasonable inspection would have discovered and with liability for results of failure to reasonably repair. The rule, now generally accepted, that the duty to furnish a safe place for the employé cannot be delegated for perform-, anee so as to relieve the niaster from responsibility and that the duty is a continuing one, is the rule of this State. The duty to maintain a safe place is one to be reasonably performed by inspection and by repair. Van Dusen v. Letellier, 78 Mich. 492; Balhoff v. Railroad Co., 106 Mich. 606; Anderson v. Railroad Co., 107 Mich. 591. See, also, Nichols v. Railroad Co., 145 Mich. 643. It is, therefore, important to determine, in the case presented, whether the defect or obstruction complained about was one which a reasonable performance of the duty to maintain should have discovered .and remedied. An argument is made, based upon the facts that the defect was not one of construction, was not created by defendants, was not a defect in the roadbed itself. It is. true that in the cases above cited, as in Ragon v. Railway Co., 91 Mich, 379, in De Cair v. Railroad Co., 133 Mich. 578, and in most of the cases in which the negligence of defendant in this regard has been considered by this court, the defect was structural, and in some of them, as in the Balhoff Case, was directly or indirectly related to original construction. It is also true that in Loranger v. Railway Co., 104 Mich. 80, this court, and in Cincinnati, etc., R. Co. v. Mealer, 50 Fed. 725, 1 C. C. A. 633, the circuit court of appeals for this circuit, said in the opinions rendered that it was the duty of the section men to remove such obstructions as were shown to have existed, and that they were the fellow-servants of the injured employé. But in the Loranger Case it is also said that “in order to bind defendant, actual notice of the obstruction must be shown, or it must have existed for such a length of time that the law will imply notice.”

In the Mealer Case, it appeared that plaintiff struck his foot against a small piece of coke and that it was the duty of the section men to go through the yards daily and remove all obstructions, including lumps of coke and coal, from the tracks and keep them cleared up. In neither of these cases was it shown that the obstruction had existed for any considerable time, and in the Loranger Case the obstruction was ashes dumped from a locomotive in a forbidden place.

In Piquegno v. Railway Co., 52 Mich. 40, it appeared that a brakeman was injured on account of an obstruction caused by accumulated ice and snow. The court considered whether the duty to keep the ground clear of ice and snow existed and was one which could not be delegated. In affirming the judgment for defendant, the court, by Mr. Justice Cooley, said:

“ It is also to be observed that these substances (ice. and snow) are not the only ones that might cause a similar accident. A stick, a stone, a piece of baggage or freight lying near the track might in like manner cause a brakeman to stumble and fall, and the company at it's peril must provide against the likelihood of such a casualty. So stringent a rule has never been applied to railroad companies, nor could it be without making them insurers against a species of accident which could seldom occur without carelessness on the part of the person injured.”

We are not persuaded by either the argument advanced or by the decisions last above referred to that the case is one for the application of the fellow-servant rule. The “place” in which the work of the plaintiff was performed was the yard of defendants. W hat the roadbed is to the train men, the surface of this yard was to plaintiff. The master had performed the duty of supplying a safe place and had appointed servants to inspect and to maintain it in a safe condition. We are required to assume that it was, at the time of the injury, an unsafe place, because of the obstruction, and, further, that if the section men had performed their duty it would not have been unsafe. It is impossible that material falling from locomotives and loaded cars, which the record shows is a common occurrence, can be, in all cases, immediately removed from the right of way. Of necessity, employés assume, in some degree, in fact and in law, the risk of injuries therefrom. It may be said to be an ordinary risk of employment in the case of a switchman whose duty it is to assist in the work of switching cars and making up trains. The controlling rule goes no further than this, that it requires on the part of the master the exercise of ordinary care and diligence to maintain the place in a condition reasonably safe for the use to which it is put. To this extent, it is a positive duty. Upon this record, we cannot say, as matter of law, that this duty had been performed.

For the reasons given, we think the question of assumed risk must be determined adversely to appellants’ contention.

It is said that plaintiff was, as matter of law, guilty of negligence contributing to his injury. This is predicated upon the proven facts that he walked, or ran, in front of the moving car, in a yard in and over which large numbers of cars were daily moved, including, within plaintiff’s knowledge, cars loaded with sand and gravel and, within his experience, the probability that some of the material would fall from the cars. A rule of defendant forbade switchmen going in front of moving cars. Plaintiff testified:

“ Just preceding the accident the engine had kicked a car down to the main line and I went up to this car and set the brake on it and put a red light on the tail end of it, as required by the rules, and I tried to open the knuckle on it. The knuckle was closed but jammed some way so I couldn’t open it. When they kicked the other car in, I went down to meet this car. I stepped into and was in front of it trying to open the knuckle on it. While I was doing that, I stumbled over the gravel; the brake beam caught my heel, kind of threw me forward; before I could catch my balance again I was kind of jumping along trying to catch my balance. The brake beam caught my heel and my toe caught in this plank. That is the planking described by the witness Eldridge. When the brake beam brought me against the planking, the box part of the car struck my back and shoved me over.”

He also testified that the car, when he went in front of it, was traveling at speed a little faster than a walk and that he could walk faster than the car was moving when he was injured; that he was in front of the car because the automatic coupler was not in proper order; that the night was dark and he carried a lantern; that he was an experienced switchman, and that it was the custom of the men to go ahead of moving cars as he did upon the occasion in question. As to the custom, he was supported by the testimony of other witnesses. While plaintiff knew that gravel had sometimes fallen from cars upon the track and had seen the section men clearing it away, he had no knowledge, so he testified, of the piles of gravel in question and affirms that but for the obstruction his going in front of the car to fix the coupler would have been a safe operation. The case upon this point cannot be distinguished from De Cair v. Railroad Co., 133 Mich. 578.

The judgment is affirmed.

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


author: Hooker,. J.

text:
    ATTORNEY GENERAL v. COMMON COUNCIL OF THE CITY OF DETROIT.
    Municipal Corporations — Powers — Manufactures — Paving Brick.
    A city cannot engage in the manufacture of paving brick for use upon its own streets without an express grant of power, the brick being purchasable in the open market, and their manufacture therefore not being necessary to the exercise of the city’s right to pave its streets.
    Appeal from Wayne; Mandell, Murphy, and Brooke, JJ.
    Submitted October 15,1907.
    (Docket No. 53.)
    Decided December 10, 1907.
    Bill by John E. Bird, attorney general, to enjoin the common council of the city of Detroit, Frances A. Blades, controller, William B. Thompson, treasurer, and Frank Reich from using a fund raised by taxation for the construction of a municipal paving-brick plant. From a decree for complainant, defendants appeal.
    Affirmed.

      Charles Flowers, for complainant.

      P. J. M. Hally (Timothy E. Tarsney, of counsel), for defendants.
   Hooker,. J.

The attorney general filed the bill in this cause to enjoin the city of Detroit from using a fund raised by tax for the purpose of paying for the construction of a municipal plant for the manufacture of brick to be used in paving, for which a contract had been made with one Frank Reich, by direction of the common council. The defendant has appealed from a decree sustaining complainant’s contention, and perpetually enjoining the payment of the fund as prayed. The only question in the case is whether the legislature has authorized. the city to make such a contract.

We agree with the opinion filed in the circuit court that the power to engage in the business of brick making, is not included in the powers expressly granted to the city, and that it is neither fairly implied in, nor incident to, such powers as are expressly granted, nor is it indispensable or even essential to the declared objects and purposes of the corporation. While the law permits municipal corporations to do those things which are necessary to accomplish the objects of their creation, under an implication of power (see 1 Dillon on Municipal Corporations [4th Ed.], § 89; 8 Current Law, p. 1062), the right has not usually been held to go so far. as to permit them to engage in the manufacture of articles necessary to their lawful enterprises, where they are in common use and are to be had in the open market.

The decree is affirmed, with costs.

Me Alva y, C. J., and Carpenter, Ostrander, and Moore, JJ., concurred.


author: Hooker, J.

text:
    BRUNSWICK-BALKE-COLLENDER CO. v. NORTHERN ASSURANCE CO.
    1. Eire Insurance — action on Policy — Ownership of Property-Knowledge of Agent — Evidence.
    In an action on a fire-insurance policy, defended on the ground that plaintiff had not the unconditional ownership of the property insured, plaintiff may show by defendant’s agent who issued the policy that he inquired and was told who had the title and who had possession of the property, the conversation being admissible as res gestse and as showing the knowledge of defendant’s agent that plaintiff had the title while another had possession.

      2. Evidence — Conclusions—Admissibility.
    To ask o£ the purchaser of property on a contract of conditional sale when he was to have the title refers to the agreement and is not objectionable as asking for a conclusion as to the effect of the contract.
    3. Sales — Conditional Sale — Chattel Mortgages — Waiver op Title.
    The seller of property on a contract of conditional sale does not waive his title by taking a chattel mortgage of the buyer for the unpaid portion of the purchase price.
    4. Fire Insurance — Ownership of Property.
    The title to property insured against fire is none the less in its owner because he has sold it by a contract of conditional sale and taken a chattel mortgage for the unpaid portion of its price.
    5. Appeal and Error — Decision on Former Appeal — Law of the Case.
    The decision of a point- on a former appeal is the law of the case, the proof being the same.
    6. Fire Insurance — Breach of Conditions — Forfeiture of Policy — Gasoline.
    The keeping of gasoline on the premises in breach of the conditions in a policy of insurance will not work a forfeiture unless it causes or contributes to a loss. Section 5182, 2 Comp. Laws.
    Error to Delta; Stone, J.
    Submitted October 15, 190?.
    (Docket No. 65.)
    Decided December 10, 1907.
    Assumpsit by the Brunswick-Balke-Collender Company against the Northern Assurance Company on a policy of insurance. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      T. B. White (Myron H. Beach, of counsel), for appellant.-

      Judd Yelland, for appellee.
   Hooker, J.

The plaintiff is a corporation doing business in Chicago, dealing in saloon furniture. In 1901 Guy and Neis W. Rawson made a contract of purchase and obtained from the plaintiff saloon fixtures at the agreed price of $2,050, and of that value, to be used by them in a saloon which they proposed to open in Escanaba, Michigan. At or subsequent to the time of the negotiations they paid $500 upon the contract, and for the remainder of the purchase price they gave to the plaintiff their promissory notes, each of which contained the clause, “The title to remain in the Brunswick-Balke-Collender Company until the goods are fully paid for.” There was evidence tending to show that these notes were secured by a chattel mortgage upon the property and at the time the Bawsons were authorized to procure insurance upon the property at Escanaba in the name and behalf of the plaintiff. They applied to one McKana, an insurance agent at Escanaba, for such insurance in plaintiff’s name, who, after issuing a policy which his company refused to accept and canceled, and being unable to place it in any other company represented by him, went to Linden, defendant’s local agent at Escanaba, for the insurance, and procured the policy sued on in this case. . This was in December, 1901.

On April 11,1902, the Bawsons sold and transferred by bill of sale to their mother, Yiola Bawson, all of their interests in this property, and she afterwards procured from Linden additional insurance upon this and other property but in different companies. On April 19, 1902, the property was destroyed by fire except a billiard table valued at $200 which Bawson Brothers had previously shipped to Minneapolis by plaintiff’s direction. * The policies issued to Mrs. Bawson were settled. Proofs of loss signed and sworn to by John Cummiskey, as agent and attorney for the plaintiff, were made, in which it was stated that no assignment of the policy or the interest of the assured had been made; that the property insured belonged to plaintiff at the time of the fire, and no other person had any interest therein, except that about November 1, 1901, it sold and transferred the property to Guy and Neis Bawson, and they executed to plaintiff a chattel mortgage on the same for $1,400; that the insured was informed of a subsequent assignment by Guy and Neis Rawson to Viola Rawson; that the property was wholly destroyed; that the value of the property and the loss was $2,165, and that the whole insurance consisted of three policies, defendant’s of $1,100, running to plaintiff, and $2,300 to Mrs. Raw-son.

This action was brought upon the policy to recover the loss, and a verdict and judgment for the plaintiff followed and the defendant has brought the cause to this court by writ of error. It has been before us on a former occasion when we passed on several questions which appear in this record. See 142 Mich. 29. It will not be necessary to discuss them at length here. We will refer to the assignments of error in the order of their discussion in defendant’s brief.

Linden, defendant’s agent, was asked if he knew who had possession of the property at the time the policy was issued. He said he inquired of McKana and was informed that the Rawson Brothers had. The plaintiff was allowed to show by the same witness that he asked Mc-Kana who owned the property and was told that it belonged to the pi aintiff. It was proper to show this as part of the res gestee and as showing the knowledge of the defendant’s agent that plaintiff owned the property while the Rawsons had possession. Moreover it is conclusively proved that Rawsons had the possession and that plaintiff reserved the title, by witnesses who testified to their own knowledge of the matter.

These assignments relate to questions regarding the title to the property. Guy Rawson was asked, “When was the title to vest in Rawson Brothers? When were you to get title ? When were you to own it ? ” We construe these to be questions concerning the agreement rather than an asking for a conclusion as to the effect of the contract. A question asked plaintiff’s vice-president does call for a conclusion, but it was harmless, for there was an abundance of uncontradicted testimony that the title was in the plaintiff.

Counsel are insistent that the taking of a mortgage made plaintiff a mortgagee and indicates that it had not the unconditional and sole ownership of the property. We held in Stack v. Olmsted, 127 Mich. 359, that an owner did not necessarily waive title by taking a mortgage from.a purchaser. It is doubtful if the record fairly raises the question, but assuming that it does, the plaintiff’s interest was not incumbered by mortgage. It was in no way lessened by the fact that plaintiff’s reserved title was supplemented by a mortgage upon the purchasers’ interest, whatever it may have been. Had this mortgage been given by the plaintiff upon its interest it might justify defendant’s claim.

It is claimed that the policy became void according to its terms, for the reason that plaintiff had, at the time of the fire, a floating policy which covered the same property. The question is ruled by our former decision, the proof being the same. 142 Mich. 37.

Defendant’s counsel requested the court to instruct the jury that if gasoline was kept on the premises it was a breach of the conditions of the policy, and that plaintiff could not recover. This was given with the limitation that such instruction would not apply unless an explosion proved in the case was caused by gasoline kept on the premises, and that fire ensued, by which the property was destroyed. It is claimed that the keeping of such gasoline and its explosion were facts conclusively proved. We think otherwise, and that the question was one for the jury. The addition to the request was in conformity to the condition of the standard policy, provided for by 2 Comp. Laws, § 5182.

We see no occasion to reverse the order denying a motion for a new trial.

The judgment is affirmed.

McAlvay, C. J., and Carpenter, Ostrander, and Moore, JJ., concurred.


text:
    WEATHERWAX v. GORMAN.
    1. Fraudulent Conveyanoes — Bankruptcy — Deeds—Setting Aside — Evidence.
    On a bill by a trustee in bankruptcy to- set aside as fraudulent a conveyance of land made by one who held the title in fraud of the bankrupt’s creditors, evidence examined, and held, not to show that defendant was a party to any fraudulent purpose of the grantor or the bankrupt, or that he had any knowledge of any infirmity in the title received.
    2. Bankruptcy — Fraudulent Conveyances — Subrogation.
    Where a good faith grantee of land from one who held it in fraud of the creditors of a bankrupt took it subject to certain incumbrances, which were valid and enforceable as against the bankrupt, he is entitled, on a bill by the trustee in bankruptcy to set the conveyance aside, to be repaid the amount of consideration actually paid, together with the sums paid to discharge the incumbrances, as a condition of granting the relief prayed.
    3. Same — Trustee’s Bond — Record—Notice.
    The record of the bond of a trustee in bankruptcy cannot operate as notice to a grantee of land from a solvent grantor who appears to have title that such title is affected by the fraud of an insolvent who is an entire stranger to the record title.
    Appeal from Washtenaw; Kinne, J.
    Submitted October 16, 1907.
    (Docket No. 77.)
    Decided December 10, 1907.
    Bill by I. H. Weatherwax, trustee in bankruptcy of the estate of George K. Harder & Company, against Peter Gorman, Peter Hendrick, and C. E. Collins to set aside certain deeds. From the decree rendered, complainant appeals.
    Affirmed.

      Elmer N. Peters, for complainant.

      J. S. Gorman {A. J. Sawyer, of counsel), for defendants.
   Ostrander, J.

The bill in this cause was filed by the trustee of the bankrupt estate of George K. Harder & Company, the purpose being to secure a decree setting aside certain deeds of land and vesting the title to the land in complainant as such trustee. The petition in bankruptcy was filed September 28, 1904. It is charged that defendant Gorman claims to be owner of the land by virtue of a purchase made by him from one Hendrick, who held title for the bankrupt, and that Gorman is not a good faith purchaser. The court below found that Gorman acted in good faith in purchasing the land, but as there was testimony .tending to prove the land to be worth from $1,500 to $1,800, as the purchase price which Gorman was to pay was $800, and as the amount which Gorman had actually paid was $661.48, a decree was entered giving complainant the privilege of paying this amount to Gorman within 60 days, in which case the deeds were to be set aside; if the money was not paid, the title was confirmed in Gorman, subject to a small mortgage, the validity of which is not disputed. From this decree, complainant, alone, appealed. The title to the premises was never of record or otherwise, by any conveyance, in the bankrupts, or either of them. It was owned June 22, 1904, in fact and of record, by William O. Briggs and wife of Eaton Rapids, and on that day was conveyed by them by warranty deed to Peter Hendrick, who, it is charged, and we may assume, held the title so.conveyed in fraud of the bankrupts’ creditors. The land when owned by Briggs was incumbered by a mortgage known as the Whittaker mortgage, amounting, at the time of the transfer to Hendrick, to $430, which Hendrick assumed and agreed to pay. As against all other incumbrances, the deed executed by Briggs, covenants that the premises are free and clear. The good faith of Briggs is not assailed. There was in fact another mortgage, known as the Collins mortgage. There was also a record of an attachment levy, made a year previous to the sale to Gorman, in a suit in which the National Grocer Company was plaintiff and the Harders defendants, and a certified copy of the trustee’s bond was also recorded in the office of the register of deeds. The deed from Briggs to Hendrick was never recorded, for the reason that taxes upon the land were unpaid. On or about April 25, 1905, Harder, acting as the accredited agent of Hendrick, sold the farm to Gorman. Harder produced an abstract of title, apparently genuine, posted to date, showing title to be in Hendrick and showing certain incumbrances, including the Collins mortgage, but not the attachment levy or the trustee’s bond. He also produced what appeared to be the original warranty deed from Briggs to Hendrick, bearing the indorsement of the register of deeds, showing that it had been recorded. The sum of $117.21 was paid to Harder in cash. Incumbrances, including taxes and the Whittaker and Collins mortgages, were computed to amount to $682.79. Harder delivered to Gorman a quitclaim deed of the property, executed by Hendrick and his wife, which recites a consideration. of $300. The sum of $177.19 was retained by Gorman until the Collins mortgage, admitted to be valid, but which Harder claimed that Briggs, by reason of his covenant of warranty, was bound to release, should be discharged and, as Gorman claims, until, also, he should be furnished with a warranty deed. Later, Gorman paid the taxes and Whittaker mortgage, which, with the sum he paid to Harder and interest, makes up the total of $661.48.

The questions presented in this court are (I) whether complainant is entitled to the land discharged of Gorman’s claim, and if not (2) whether, because it appears that the trustee has not sufficient money to discharge this claim, he is entitled to the land subject to a lien for the Gorman claim. As to the first question, the position of complainant is, that if Gorman did not accept and claim title under the quitclaim deed, he is a mere volunteer in the payments he made; if ‘he acquired an interest in the land, he assumed the payment of the mortgage and taxes and cannot be subrogated to the mortgagees’ rights; if he was a party to the fraud of Hendrick and the bankrupts, he will not be aided by the equitable doctrine of subrogation.

It is claimed that evidence of the bad faith of defendant Gorman is found in the circumstances here stated:

(1) He was one of the appraisers of this land at the time the attachment was levied on it by one of the creditors of Harder prior to the adjudication in bankruptcy; the appraisers fixed the value of the land at $800. The appraisal was made June 27,1904. Gorman explains this transaction by saying that he did not know that he was appointed appraiser in an attachment suit, or that an attachment suit had been begun; that he was approached by strangers and asked to fix a value upon the property; that he gave them his estimate of the value; it was written down and he signed it.

(2) The acceptance of a quitclaim deed. The testimony for defendant Gorman tends to show that he offered to pay $800 for a good title of the land; that upon the production by Harder of a quitclaim deed executed by Hendrick and his wife, he insisted upon a warranty deed but retained the quitclaim deed upon the assurance of Harder that he would procure and deliver to him a warranty deed and would secure the discharge of the Collins mortgage. The Collins mortgage has never been discharged and a warranty deed has never been furnished nor has the money which was reserved to secure the performance of both of these undertakings, and which was deposited in the bank by Gorman, ever been paid over; that he in fact knew nothing of the condition of the record title except as it was disclosed by the abstract, which appeared to be genuine.

(3) The inadequacy of the purchase price. The testimony concerning the value of the land is conflicting. It was valued on the tax roll for the year 1903 at $1,600; in 1904 at $1,800, and in 1905, when it was assessed to defendant Gorman, at $1,350. As opposed to this, there is the appraisement made in the attachment suit and testimony of people who live in the neighborhood of the land that it is worth seven dollars an acre and there are 130 acres; testimony tending to prove that it was trading property, only a portion of it being hard land; Gorman’s own testimony that in 1905 the land was worth no more than $800.

(4) Other circumstances disclosed. Gorman immediately took possession of the land and, prior to the filing of the bill in this cause, which was in December, 1905, he had cut and removed considerable valuable timber therefrom. He paid the delinquent taxes. May 15,. 1905, according to his testimony, he paid the Whittaker mortgage.

We are not satisfied that Gorman was party to any fraudulent purpose of Harder and Hendrick, and find that he had no actual knowledge of any infirmity in his title. The character of Harder as disclosed by the record sufficiently accounts for a fraudulent abstract and the production of a spurious deed. The alleged inadequacy of price, alone, complainant’s proof of value resting upon the assessed value as shown by tax rolls for 1903, 1904, and 1905, and defendants’, upon opinions of neighbors, including Gorman, is not so clearly apparent as to support a finding of fraudulent action on the part of Gorman. Whether defendant Gorman agreed to accept or was in fact willing to purchase and receive a quitclaim deed, is a question of more difficulty. Assuming it to have been the kind of conveyance bargained for, it does not follow that he is entitled to no consideration. Taylor v. Roniger, 147 Mich. 99; Cleland v. Clark, 123 Mich. 179. Except as against creditors of Harder, Hendrick owned the land when he conveyed it to Gorman. If it had .passed to Harder instead, he would have taken it subject to existing liens. Complainant could succeed to no greater rights. So that if defendant Gorman is held to have had notice of the claim of complainant by reason of the record of the trustee’s bond and the law of Congress (bankruptcy act of 1898, section 31 e; Brandenburg on Bankruptcy [3d Ed.], § 559), equity does not require that the trustee shall now take the land discharged of the liens. The fact that Gorman had agreed to pay the incumbrances as a part of the purchase price is in no manner controlling of equities here. The argument made, based upon the rule that one assuming and agreeing to pay a mortgage or the grantee of such a purchaser, who pays it, thereby extinguishes and satisfies it so far as his grantor is concerned, is inapplicable. The grantor is not corn-planing. No rights of innocent purchasers have intervened the payment and the decree. And we are not inclined to hold that the act of Congress referred to has any such force as is claimed for it, as notice; If it has, then no one can safely purchase land from one who appears to have title thereto and who is solvent-and whose grantors were solvent, except at the peril of discovering later that some of the conveyances in his chain of title are affected by the fraud of an insolvent who is an entire stranger to the record title. Whether, therefore, defendant Gorman did or did not receive the kind of conveyance bargained for, complainant is entitled to no more favorable decree than the one appealed from. It is affirmed, with costs to defendant Gorman.

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


author: Carpenter, J.

text:
    BLACKMAN v. ANDREWS.
    1. Wills — Undue Influence — Evidence—Sufficiency.
    The fact that testator, after the making of her will disposing of practically all of her property to proponent, her daughter, manifested the same affection as before for contestant, another daughter, gives rise to no inference that the will was procured by undue influence, but rather indicates the absence of such influence.
    2. Same — Failure to Testify — Effect.
    The circumstance that proponent’s husband, though present in court, and active in procuring the probate of a will, did not take the stand as a witness, is unimportant in the absence of evidence tending to prove the impropriety of his conduct.
    S. Same — Evidence—Sufficiency.
    Undtte influence cannot be predicated upon mere opportunity for its exercise.
    4. Same — Testamentary Capacity — Evidence—Sufficiency.
    On the issue of testamentary capacity, evidence examined, and held, that the question should not have been submitted to the jury.
    5. Same — Evidence—Opinions.
    Nonexpert witnesses, who testify to no facts or sayings inconsistent with sanity, should not be permitted to state that in their opinions testator lacked testamentary capacity.
    Error to Lenawee; Chester, J.
    Submitted October 16, 1907.
    (Docket No. 42.)
    Decided December 10, 1907.
    Seraph C. Blackman presented for probate the last will and testament of Eliza M. Straight, deceased. The will was allowed in the probate court, and Eliza A. Andrews appealed to the circuit court. There was judgment for contestant, and proponent brings error.
    Reversed.

      Fellows & Chandler and Bird & Sampson, for appellant.

      John L. CMealey and Smith, Baldwin & Alexander, for appellee.
   Carpenter, J.

The object of this suit is to secure the probate of the will of Eliza Straight, who died in 1904, at the age of 78 years. The wi'll was made in February, 1902, when testatrix was in her 76th year. Proponent and contestant are the children of testatrix and her only children. Each of these children is married and in comfortable circumstances. The contestant has no children, and it would seem from her age that she is likely to have none. Proponent has two children; one of them a son who is named after the husband of testatrix who has been dead several years. His name is Enoch Blackman. By her will testatrix bequeathed her homestead farm to • said grandson, Enoch Blackman. She bequeathed to contestant the sum of $500 during her lifetime, and no more. The remainder of her property, consisting of several thousand dollars, she bequeathed to proponent.

The circumstances attending the execution of the will were these: On the morning of February 26,1902, testatrix rode with proponent’s husband, Nathan Blackman, from her home in the country to Thompson’s bank in the village of Hudson. On arriving at the bank Blackman left her. Testatrix then had an interview with Mr. Thompson and asked him to draft her will. Mr. Thompson suggested that it would be wiser to have the will drafted by Mr. Grant Fellows, the bank’s attorney. To this testatrix assented. Mr. Fellows was called in, and testatrix told him just how she desired her will drawn. Mr.- Fellows drew the will in accordance with her directions.

“Read it over to her and asked her if it was as she wanted it, and she said it was, and she said that she expected that Mrs. Andrews would not be satisfied with the provisions of the will; but she said Mrs. Andrews’ people were comfortably well off, had a good home, and that the child which they had was an adopted child, and while she didn’t blame Mrs. Andrews for that, she didn’t feel as though she wanted the property to go outside of the family.”

The will was then executed in the presence of Mr. Fellows and Mr. Beall who was called in from the bank for that purpose, and they each signed it as subscribing witnesses. It cannot be claimed — and I do not understand that it is claimed — that there was any issue respecting the execution of the will to be submitted to the jury. Its execution was conclusively established. But the trial court left to the jury the question of testatrix’s mental capacity, and the question of whether the will was procured by undue influence. The jury found that it was procured by undue influence and rendered a verdict disallowing the will.

The important questions for our consideration arise from the contention of proponent that there was no evidence justifying the submission to the jury, either the question of lack of testamentary capacity, or that of undue influence. In determining these questions, it should be borne in mind that the will was not an unnatural one. The slightest knowledge of human nature explains why testatrix should prefer her property to go to her own direct descendants rather than to a stranger, even though, as claimed by contestant, she had no dislike for her adopted grandson.

The first question for our consideration is this: Was there any evidence that the will was procured by undue influence? The person whom contestant charges with exercising undue influence is Nathan Blackman, the son-in-law of testatrix and the husband of proponent. After the death of her husband, which occurred in November, 1900, testatrix advised with her son-in-law Blackman and also with her son-in-law Andrews respecting her business affairs, — though it seems that she advised more with Blackman than with Andrews, — and during this time she was on terms of intimacy with Andrews as well as with Blackman. It cannot be said that Blackman ever improperly obtruded his advice or that he ever gave testatrix bad advice. In this connection it is proper to refer to a particular instance upon which contestant’s counsel lay great stress, viz., Blackman advised testatrix after her husband’s death that she must take out letters of administration upon his estate. This was eminently proper advice, for one of the assets of the estate consisted of a mortgage which otherwise could not have been legally collected.

It is contended that it may be inferred that undue influence was exercised because, at the time the will was made, and ever afterwards until she died, the testatrix manifested the same affection for contestant. This claim is very remarkable. For the circumstance relied on indicates the absence of undue influence. Had testatrix manifested an aversion for contestant, the change in her affection would have been significant; it would have afforded ground for believing that some malignant minded person had poisoned her mind, and in that way exercised undue influence on her will. The contention under consideration is, in my judgment, based upon a misconception. The testatrix disposed of her property in the manner she did, not because she entertained more affection for proponent than for contestant, but because she preferred that property go to her own direct descendants rather than to a stranger. The notion that a parent can show his affection for a child only by giving something having a material value is utterly incorrect. It is a false idea of parental affection.

Emphasis is laid upon the circumstance that Blackman, though present in court, and active in endeavoring to procure the probate of the will, did not take the stand as a witness. This circumstance is utterly unimportant, unless contestant offered evidence tending to prove the impropriety of his conduct. The failure of a party to take the stand may strengthen the inference to be legitimately drawn from testimony in the case, but it does not warrant an inference in no. manner justified by that testimony. If it were otherwise, the plaintiff in any suit could submit his case without testimony and demand a verdict and judgment because the defendant remained silent. The most that can be said in support of contestant’s claim that there was evidence of undue influence is this, viz., there was opportunity for its exercise. It is well settled that that is not enough. See Severance v. Severance, 90 Mich. 417. The trial court erred in submitting that issue to the jury.

Second. As this case must be remanded for a new trial, it is proper for us to determine whether there was any evidence which justified the trial court in submitting to the jury the question of testatrix’s testamentary capacity. Up to the time of her death testatrix, assisted by the advice of her sons-in-law, managed her business affairs. Her right to manage them never was challenged. She managed them well. She made few if any mistakes. She possessed unusual natural capacity. In her conduct she exhibited marked independence of character and an intelligence far above the average. Several years before her death she had a stroke of paralysis which certainly did not permanently impair her mental vigor, but which did leave her lame and partially blind. In November, 1900, she lost her husband. She had lived with him for many years, and the relation between them was one of the deepest affection. It was claimed by contestant that, commencing from this time, she gave evidence of impaired mental capacity. And witnesses, upon observations detailed in their testimony, were permitted to testify and did testify, that, in their judgment, testatrix lacked capacity to make the will in question, and the opinions so given furnish the sole justification for the claim that the issue of testamentary capacity was properly submitted to the jury. Did these witnesses have any right to express the opinions they did ? It is difficult to deal seriously with much of this testimony. One witness was of the opinion that testatrix lacked testamentary capacity because she was independent and set in her way, and because she wanted to live alone after her husband’s death. Another testified that he did not think “ a person who arrived at that age (77 or 78 years) is mentally competent to make a will or do business.” Others based their opinion of lack of testamentary capacity, either in whole or in part, upon the fact that by her will testatrix made an unequal distribution of her property.

After the death of her husband testatrix was melancholy and despondent, and both by word and action exhibited the peculiarities of despondency. At times she was preoccupied and disinclined to engage in cheerful conversation. These circumstances were thought by some witnesses to indicate testamentary incapacity. She often sat quietly in her chair and for a long time gazed out of the window. This circumstance was thought to indicate mental impairment. Their error will be apparent when it is understood that, owing to her impaired eyesight, testatrix could neither read nor sew, and that on most of these occasions she was doing the only thing she could do. In relating incidents that occurred long before, particularly in stating figures, she sometimes made mistakes, which, however, she recognized and corrected when they were brought to her attention. Sometimes, when engaged in conversation, she passed from one topic to another, and later recurred to the first. We scarcely need to say that this is not an uncommon characteristic of sane minds. For the purpose of restoring strength to her paralyzed limbs, testatrix occasionally ran about the garden, thus affording an exhibition, which, to say the least, was peculiar, but I do not understand that any witness thought —and he certainly had no ground to think — that it indicated insanity. Other peculiarities even less indicative of insanity were described. Not one of contestant’s witnesses testified to a single act inconsistent with sanity; not one of them testified to a single saying inconsistent with sanity. Under the authority of Hibbard v. Baker, 141 Mich. 124, the opinions of these witnesses that testatrix lacked téstamentary capacity should not have been received, and the trial court should have directed the jury to render a verdict admitting the will to probate.

Judgment reversed, and new trial ordered.

McAlvay, O. J., and Ostrander, Hooker, and Moore, JJ., concurred.


text:
    HAMMOND v. PORTER.
    1. Slander — Justification—Evidence—Sufficiency.
    In an action for slander in charging plaintiff with stealing defendant’s chickens, in which a justification is pleaded, a contention that the evidence tending to prove justification was insufficient because.it only justified the language used in a literal sense, and not in the sense in which it is charged in the declaration, is untenable where, though .defendant testified on cross-examination that he could not swear that plaintiff stole his chickens, the inference that he did steal them could be drawn from defendant’s testimony.
    2. Same — Pleading—Notice of Justification — Objections.
    A complaint on error that a notice of justification in an action for slander is insufficient because it only justifies the language used in a literal sense, and not in the sense in which it is charged, is an objection to a variance in a mere matter of form which, not being raised in the trial court, cannot be considered.
    3. Trial — Instructions — Requests — Necessity — Specific )Instruotions.
    Where plaintiff in error has no just ground to complain of what the court said in its instructions, he cannot complain of failure to give more specific instructions as to points about which he preferred no requests.

      4. Slander — Trial—Instructions—Inference of Malice.
    A claim that, by reason of a modification of one of plaintiff’s requests, the jury would not understand that defendant’s malice was to be inferred if he charged that plaintiff stole his chickens, is not meritorious where the court charged that, if the jury found that the words were spoken as alleged in the declaration, the law presumed they were spoken maliciously and that good faith was no defense.
    5. Damages — Evidence—Instructions—Harmless Error — Cure by Verdict.
    Errors in excluding testimony and in charging the jury respecting the measure of plaintiff’s damages are not reviewable in a case in which the jury found a verdict for defend" ant.

      Error to Eaton; Smith, J.
    Submitted October 16, 1907.
    (Docket No. 78.)
    Decided December 10, 1907.
    Case by Orvil C. Hammond against Benjamin Porter for slander. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      P. A. Colwell and Huggett & McPeek, for appellant.

      JSlmer N. Peters, for appellee.
   Carpenter, J.

Plaintiff and defendant are neighbors. Each owned a large number of chickens of the same variety. They had a quarrel, arising from the fact that defendant charged that plaintiff had sold some of defendant’s chickens. Plaintiff contends that in the course of this quarrel, which took place in the presence of plaintiff’s wife, defendant charged that plaintiff stole said chickens. This suit is brought to recover damages for that slander.

The declaration avers that defendant said:

“ I have found right here to your neighbors where you kave sold chickens with our shear marks on them * * * that they did not all go at once, they went a few to a time and when you opened your coop we saw fifteen come right straight home.”

The declaration also avers other slanderous statements, and that defendant thereby meant and intended to charge that plaintiff stole his chickens. Defendant pleaded the general issue and gave notice that the above quoted statements were true. The suit was tried before a jury and a verdict and judgment rendered in defendant’s favor.

First. It is contended now that the notice of justification, and also — as we infer from plaintiff’s brief — that the evidence tending to. prove justification, each was insufficient because it only justified “the language used in the literal sense,” and not “in the sense in which it is charged by plaintiff in his declaration.” Whatever may be said respecting the notice, there was no' insufficiency in the testimony introduced to establish justification. It is true that defendant, when being cross-examined, testified — and very properly testified — that he could not swear that plaintiff stole his chickens, but the inference that he did steal them could none the less be drawn from the testimony. The real complaint of plaintiff, then, is, not that justification was not proved, but merely that it was not alleged. This is an objection to mere matter of form, to a variance, which should have been made in the trial court. Stone v. Covell, 29 Mich. 359; Merkle v. Township of Bennington, 68 Mich. 142; Alderton v. Williams, 139 Mich. 302. It was not so made and we therefore decline to consider it.

In this connection we notice the complaint of plaintiff that the trial court erred in not charging the jury that, to succeed in his justification, he must justify the language used in the sense in which it is averred in plaintiff’s declaration. Plaintiff has no just ground to complain of what the trial court did say. At most he has a right to complain only of an omission in the charge. In other words, his real complaint is that a more specific instruction was not given. Had he desired such instruction, he should have asked it. ' That he did not do. Under these circumstances, the failure of the trial judge to give such instruction was not error. People v. Smith, 122 Mich. 284; Miller v. Shumway, 135 Mich. 654.

Second. The trial court, in charging the jury, modified one of the requests preferred by plaintiff. It is contended that this modification was an error. The only argument advanced in support of this omission is the following:

‘ ‘ The proposition that malice is to be inferred when a person is falsely charged with a crime, is so well settled as not to require citation of authority.”

In other words, plaintiff contends, as we understand the above argument, that by reason of the modification of said request the jury would not understand that defendant’s malice was to be inferred if he charged that plaintiff stole the chickens. There is no merit in this complaint, for the trial court charged the jury:

“And if you find they (the alleged slanderous words) were spoken as alleged in the plaintiff’s declaration, then the law presumes they were spoken maliciously. * * * Further, if you find that the defendant did utter the slanderous statements or some of them alleged in the plaintiff’s declaration in good faith and in the honest belief that said statements were true, that is no defense to this action.”

Third. It is also contended that the court erred in charging the jury respecting the measure of damages and in excluding testimony which tended to enhance the damages. As the jury found a verdict for the defendant they did not reach the question of damages. They had, therefore, no occasion to make use of the excluded testimony, or to apply the rule of law complained of. The alleged errors could not have been prejudicial, and we are not called upon to review them. Brown v. Harris, 139 Mich. 374; Sterling v. City of Detroit, 134 Mich. 22; N. & M. Friedman Co. v. Assurance Co., 133 Mich. 212.

No other complaint demands discussion.

Judgment affirmed.

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


text:
    McQUISTEN v. DETROIT CITIZENS’ STREET-RAILWAY CO.
    1. Evidence — Character—-Admissibility.
    In an action against a street-railroad company for the death of a person crossing the track, testimony that deceased was a careful man is not admissible for plaintiff in the absence of an attack on his character by defendant by similar evidence.
    3. Same — Death—Damages.
    In an action under the “ death act ” for damages sustained by dependents of deceased by his death, evidence that he was a careful man is not material on the question of damages.
    3. Street Railroads — Crossing Accident — Contributory Negligence — Instructions.
    In an action against a street-railroad company for the death of a person while crossing the track, requested instructions that in considering whether deceased looked for the approaching car the jury should take into consideration the fact that his right eye was destroyed, and the testimony of plaintiff’s witnesses before the coroner’s jury, are properly refused as argumentative.
    Error to Wayne; Carpenter, J.
    Submitted October 17, 1907.
    (Docket No. 88.)
    Decided December 10, 1907.
    Case by William D. McQuisten, administrator of the estate of Peter Trudell, deceased, against the Detroit Citizens’ Street-Railway Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Brennan, Donnelly & Van De Mark, for appellant.

      William Look (Thomas A. E. Weadoek, of counsel), for appellee.
   Hooker, J.

The plaintiff’s intestate, Peter Trudell, was killed by a Jefferson avenue car, in the suburbs of Detroit, under the following circumstances. At the point of the accident, the defendant’s street railway did not occupy the traveled portion of the highway, but was located near where the curb would be, were the street paved, on the northerly side of the highway. A short distance west of the intersection of Bowen avenue with Jefferson avenue, and a few feet north of the track, there was a well, somewhere from three to seven feet distant. From Bowen avenue the track extended westerly in a straight line, for a distance of 2,900 feet, all visible from the well.

Trudell and others stopped their teams opposite the well for the purpose of watering their horses. After waiting a short time, Trudell is said to have crossed the track to the well to get a pail of water, remaining there a minute or two, when he took up his pail of water and started back across the track, when he was struck by a car coming from the west, and killed. He was blind in his right eye, that side being toward the approaching car.

In the course of the trial-the following occurred. One John Parker, deceased’s fellow teamster, was testifying, being called for the plaintiff. He had stated the circumstances and said:

‘c Q. What do you know, if anything, about his being a careful, prudent man ?
“A. He was always a careful, a good sober, industrious fellow. (Objected to as incompetent and moved to strike it out.)
The Court: I will let the answer stand. The question is improper, in my judgment. Note an exception. If you want it struck out I will strike it out, Judge.
“ Mr. Look: No, let it stand.”

Counsel for the defendant asked the court to charge:

“ (4) In considering whether the deceased looked for the approaching car the jury may take into consideration the fact that his right eye was destroyed.”

Also:

“(5) In considering the testimony of plaintiff’s witnesses Oakum and Parker, to the effect that the deceased looked for the car, you have a right and it is your duty to consider their former testimony before the coroner, when both testified that they did not know whether he looked or not.”

The court said:

“Now the question is, and it is to my mind the most important question in this case, whether or not Trudell, himself, was negligent. There is no dispute as to the surroundings up there where' he was injured. Nowit is a rule of law, as I understand it, and as I charge you, that a person about to cross a railroad track, whether that be a steam road or an electric road, is bound to look and listen for an approaching car, and ■ he is chargeable with what looking and listening would have discovered. Now the question is what looking and listening would have discovered to Trudell on this occasion. All the testimony in the case from the plaintiff indicates that as Trudell approached the track at the time he met his death, he did look and looked in a westerly direction, looked toward this approaching car. It is true that the testimony indicates that he was blind in his right eye — I suppose it means blind in his right eye, that he had a glass eye and he could not, of course, obtain any aid from that eye. Nothing appears however to have been the matter with his left eye. The testimony, as I have, already said, indicates that he did look as he approached the track. Now he is chargeable with being able to see what he could have seen at that time. Under any calculation that you can make the car was in full sight at that time. There cannot be any question about that. There is no testimony in the case which would warrant you in concluding any differently, but that the car was in sight, because he could see as he approached that track, according tó Kehl’s testimony, a quarter of a mile. He is the only one, as I recollect, who gave any evidence on that; so that the car was in full sight. Whether he saw it or not I cannot tell, and perhaps you cannot, but he is chargeable with what he could have seen. You may treat him in that way.”

He made no allusion to the subject of the fifth request.

A verdict of $3,500 was rendered in favor of the plaintiff. Subsequently this verdict was set aside and a judg- ■ ment entered of “ No cause of action.” See former opinion, 147 Mich. 69. After the filing of the opinion in that case the judgment of this court was so modified as to permit the review of the questions saved by counsel for the defendant, and a new record is before us. The three points- mentioned are relied upon.

It seems to be conceded that a plaintiff’s reputation or character is not admissible in his own behalf, unless attacked by similar evidence. The natural tendency of evidence that the deceased ‘ ‘ was always a careful * * * man ” would be to impress the jury with the thought that he was not likely to overlook the approach of.the car,, thereby having a direct influence on their view of the question of contributory negligence. The learned circuit judge doubted the propriety of allowing it to stand as evidence and would have struck it out had not plaintiff’s counsel deliberately elected to have it stand.

It is contended that this testimony was admissible, as bearing on the question of damages. This action is brought under what has been denominated the “death act,” and under it the damages recoverable are measured by the injury which certain dependents of the deceased can be shown to have lost by the death. We cannot see that the' fact that he was a careful man would have any proper bearing upon the question, even if it could be said to be admissible as bearing upon the question of damages in any case, which need not be determined. We cannot say that this testimony was not injurious. While we have held that this was a proper case to go to the jury, there was strong evidence of negligence on the part of the deceased, so strong indeed that the trial judge might well, as he did, consider it near the line of cases conclusively established.

Of the other two questions it is sufficient to say that the first was sufficiently covered in the charge, and while both referred to subjects proper for the jury to consider, the requests are of the nature of arguments upon the facts, more proper to come from counsel than the court. We are constrained to reverse the judgment.

A new trial is ordered.

McAlvay, C. J., and Montgomery, Ostrander, and Moore, JJ., concurred.


text:
    La PLANT v. LESTER.
    1. Homesteads — Rights—Two Plages.
    One cannot have homestead rights in two places.
    2. Same — Abandonment—Acquisition op New Right.
    Where a husband left his wife and family temporarily, leaving them residing upon their homestead, and acquired land in another place upon whioh he resided without them for many years, the fact that he deeded his wife his interest in the original homestead did not operate as an abandonment by her of the original homestead so that she might claim homestead rights in the land upon which he resided.
    3. Same — Dower—Release.
    Where, after a husband had left his wife and family residing upon a homestead which he had provided, and acquired other land upon which he resided alone, the husband and wife exchanged deeds to the respective lands occupied by them as a part of a separation agreement, his deed to her was a sufficient consideration for her release of her dower and homestead rights in the parcel occupied by him and prevents her claiming that she still has homestead rights in his land.
    Appeal from Luce; Steere, J.
    Submitted October 18, 1907.
    (Docket No. 90.)
    Decided December 10, 1907.
    Bill by Joseph La Plant and Rosa La Plant against Solon Lester to remove a cloud from the title to certain land. Prom a decree dismissing the bill, complainants appeal.
    Affirmed.

      M. B. Peters, for complainants

      L. H. Fead, for defendant.
   Hooker, J.

The complainants are husband and wife, and their bill is filed to cancel and remove the cloud occasioned by a mortgage upon a 40-acre parcel of land in Luce county, the title to which is in the husband. The mortgage was given by bim, his wife not joining, and the case turns upon the question of homestead rights. The learned circuit judge dismissed the bill, and the complainants have appealed. The testimony shows the following facts, about which there is little dispute:

The complainants married during the late civil war, and at once moved to Detour, Chippewa county, Michigan. They lived in that vicinity thereafter, and about 1893 he entered the northeast quarter of the northeast quarter of section 25, township 42 north, range 3 east, Chippewa county, Michigan, under the homestead laws. . He built a house upon the land and lived there for two years or thereabouts with his wife and children. He then moved his family into a house which he built upon rented ground, in the village of Detour. Later the family bought a piece of land and moved the house upon it, and have continued to live therein, or upon the homestead land, ever since. Two or three years after entering the land Joseph La Plant left home and went to Luce county and he has been there since. It does not appear that he has at any time returned to his family, but he testified that his wile had visited him on three occasions, and he stated that they had not separated. Nevertheless we have no difficulty in determining that he left home because of differences that arose between them, in which she took the part of her sons against her husband, and, to use his language, “got ugly.” They had “ children staying around home,” that he “didn’t like to support any longer.” His wife “upheld the children” and he “left home, the big boys would not help me (him) any.” He staid there ever since. He went to Luce county about eleven years ago, and on leaving home, as he says, “ got a job that kept him there.” In April, 1901, La Plant bargained with Solon Lester for the parcel of land in Luce county, and a year later, April 7, 1902, he received a quitclaim deed of the premises from Lester and on the same day he mortgaged it to Forbes for $50, payable in a year. On June 10, 1903, this mortgage was assigned to Solon Lester, and on April 13, 1904, the mortgage in controversy, for $356, was given to Lester. The amount of the prior mortgage was a portion of the consideration for this one. Mrs. La-Plant’s first visit was eight or nine years before the trial of this cause. She went there to investigate rumors relative to La Plant’s conduct, and staid with him a week on Solon Lester’s farm which adjoined the land in question. Her next visit was in 1900 or in 1901, when she remained a week, staying with him on land owned by one Leigh*ton. Her errand was to induce her husband to go back with her and “prove up” on their homestead. Apparently she did not succeed. In 1902 she again visited Luce county, her errand being to adjust their property matters. She had made the necessary proof and obtained a patent of the homestead running to her husband, and the parties finally agreed that he should deed the homestead to her, and she should deed the Luce county parcel to him. This was done on May 1,1902. La Plant afterwards commenced a suit similar to the one now before us, which he afterwards withdrew, his wife not being a party. Subsequently they joined in the present suit. The husband has a house in which he lives upon the land in Luce county. The wife has never lived there but has always maintained a home upon the Chippewa tract or in Detour. Complainants’ children are adults. The evidence warrants the conclusion that La Plant furnished his wife and children a homestead at Detour. His wife has not only occupied it since, but has shown an indisposition to leave it, and has at no time been disposed, or willing, to abandon it, and go to Luce county to live with her husband. Up to the time that he deeded the Detour property to her, there was but one place in which she could claim homestead rights as against creditors, and that was in Detour. That was the homestead furnished by the husband and continuously occupied by the family. It is true that he left home and acquired this land in Luce county, but he never sought to move his family from the former home, and if the complainants had not separated, as he claims they had not, he still had homestead rights therein.

It is settled that one cannot have homestead rights in two places. See Wheeler v. Smith, 62 Mich. 373; McMonegal v. Wilson, 103 Mich. 264. Up to the time of the deed to Mrs. La Plant, neither husband nor wife had homestead rights in Luce county, because their homestead was in Detour, and had never been changed. By that deed he conveyed the homestead to her. It was none the less her homestead thereafter, and unless she abandoned it for another homestead it continued to be her homestead. She has acquired no other, unless, by reason of her acquiring the title to the homestead, she acquired a right to claim homestead rights in any other land that he might have and reside upon during his absence from her.

If we are to credit La Plant’s testimony, he has not separated from his wife. They have always maintained a home for the family, and if he has lived upon the Luce county land, it was an enforced absence and a necessary occupancy to care for the land. He testified that he left home because he got a job, and he struck that piece of land which kept him there. We feel justified in saying, therefore, that the evidence fails to show an abandonment of the Detour homestead and the establishment of a new one in Luce county by either husband or wife.

If, on the contrary, they have separated, and the deed to her of the Detour property was made in view of that fact to provide for her, it was a sufficient consideration for her release of dower and homestead rights (if she would otherwise have had the latter) in the Luce county land — under the case of Randall v. Randall, 37 Mich. 573, where Chief Justice Cooley expressly says that such a release would be “good in equity whether it was at law or not.” It may be well contended that there should be no difficulty in treating it as a valid release in law, as she might lawfully convey her interest to one holding the legal title without j pining with her husband, but we need not pass upon that question. See Rhoades v. Davis, 51 Mich. 309; Wright v. Wright, 79 Mich. 531; Dakin v. Dakin, 97 Mich. 287. Whichever view we may take, the claim of these complainants cannot he sustained.

The decree is affirmed, with costs.

McAlvay, C. J., and Ostrander, and Moore, JJ., \concurred. Carpenter, J., concurred in the result.