author: Stone, J.

text:
    FIRST NATIONAL BANK OF ANN ARBOR v. HOLMES.
    1. Appeal and Error — Statement of Errors Relied Upon — Briefs of Appellants — Supreme Court Rules.
    The brief of appellant should conform to Supreme Court Rule No. 40, stating the errors relied upon, the questions involved, and the manner in which they are raised.
    2. Evidence — Parol Evidence — Written Contracts.
    Parol evidence is inadmissible to vary or contradict a contemporaneous written contract.
    3. Same — Bills and Notes — Parol Evidence — Consideration.
    In an action upon a promissory note, which is absolute upon its face, no evidence of a verbal agreement made at the same time, qualifying its terms, is admissible, but the circumstances'under which it was given may be inquired into as hearing upon the consideration.
    4. Trial — Bills and Notes — Consideration—Evidence—Question for Jury.
    Conflicting evidence as to the circumstances under which the note sued upon was given, bearing upon the consideration, held, to present a question of fact for the jury.
    5. Principal and Agent — Authority of Agent — Question for Jury.
    Where one of the defendants and another had authority to negotiate a loan with a bank for a corporation in which they were interested, as to whether they had authority to dispose of the proceeds of the same, held, properly submitted to the jury.
    6. Same — Apparent Authority of Agent.
    The apparent authority of an agent to act as the representative of his principal is to be gathered from all the facts and circumstances, and, ordinarily, this is a question of fact for the jury.
    7. Contracts — Bills and Notes — Consideration.
    Where $2,000 of the proceeds of a loan negotiated with a bank for a corporation was applied to the payment of the private debt to the bank of one authorized with defendant to make the loan, he substituting $2,000 worth of stock of the corporation for the cash, and defendants, with notice thereof, signed the note sued on for that amount, in order to make up the amount necessary to carry through the transaction for which the loan was negotiated, the parties interested refusing to accept the stock in place of the money, it cannot be said that there was no consideration for the same moving to the defendants, although they protested against said action.
    8. Same — Election of Remedy — Estoppel.
    That plaintiff bank filed a bill against defendants’ associate to compel the return to it of the $2,000 and collateral security delivered to him, which bill was dismissed, held, not to estop plaintiff from maintaining the present action on the note.
    9. Appeal and Error — Evidence—Admissibility—Miscarriage of Justice.
    While evidence complained of was remote, if it cannot be said that its admission was prejudicial, or that it resulted in a miscarriage of justice under 3 Comp. Laws 1915, § 14565, the case will not be reversed therefor.
    10. New Trial — Weight of Evidence.
    Motion for new trial on the grounds that the verdict was against the clear weight of the evidence, and against the charge of the court, held, properly denied.
    Error to Washtenaw; Sample (George W.), J.
    Submitted October 13, 1920.
    (Docket No. 62.)
    Decided February 3, 1921.
    Rehearing denied March 31, 1921.
    Assumpsit by the First National Bank of Ann Arbor against Harmon S. Holmes and another on a promissory note. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Frank E. Jones (A. A. Ellis, of counsel), for appellants.

      Cavanaugh & Burke and Arthur Brown (E. R. Sunderland, of counsel), for appellee.
   Stone, J.

This case has been brought to this court by the defendants on writ of error to. review a judgment in the court below, for the plaintiff upon a promissory note made by the defendants, in the words and figures following:

“$2,290.00 Ann Arbor, Mich. Aug. 25, 1917.
“One year after date I promise to pay to the order of the First National Bank of Ann Arbor twenty-two hundred and ninety dollars, at the First National Bank of Ann Arbor. Value received with interest at six per cent, after date, payable semi-annually.
“A. F. Freeman,
“H. S. Holmes.”

There are 63 assignments of error. The original brief of counsel for appellants is subject to the criticism that it does not contain a statement of the errors relied upon, the questions involved and the manner in which they are raised. Supreme Court Rule No. 40; Mason v. Partrick, 100 Mich. 577; Hunter v. Township of Dwight, 157 Mich. 634. As said by Justice Hooker in the last-cited case:

“As we have often said, such omissions are productive of much inconvenience to the court, and are hazardous to the interest of appellant.”

Counsel for appellants in their original brief say:

“It seems to us unnecessary, and really not in good taste, to consider or treat separately each of the many assignments of error; but we do not thereby mean to abandon any of such alleged errors, not a single one of them, for we regard them all legally well taken and sound; but, of course, we were required to assign the error to have the benefit of the exception.
“The exceptions taken and the errors assigned will fairly swing about a few general headings conveniently grouped, which also fairly embrace the mistakes made at the trial and the error for. refusing to grant a new trial, and are all covered by the assignments in such respects.”

This is not a compliance with either the letter or spirit of the rule. The language of this court in Stowe v. Express Co., 179 Mich. 349, is applicable here, but we have concluded to consider such, propositions as are discussed by counsel and are raised by the assignments of error.

Under the plea of the general issue the defendants gave notice:

(1) That there was no consideration for this note.

(2) That it was signed and issued under conditions making it void as against public policy.

(3) Set-off of $2,000 which it is alleged the plaintiff had received for the use and benefit of these defendants.

What appellants really claim under the notice of set-off is, that the $2,000 received for the original of the note in suit was money then and there legally belonging to them. That is only another way of saying that there was no consideration for the note, which is the first defense pleaded. So that there is no question of set-off as an independent inquiry involved in the case.

The case has been tried twice, before juries on these issues, and each time the plaintiff recovered for the full amount of its claim; the first verdict having been set aside, the case is now here to review a judgment entered upon the second verdict.

The evidence showed that the note in suit was the third renewal of an original note given by the two defendants on April 26, 1915, for $2,000 payable to the plaintiff in 10 days. About 20 days after the making of this original note, the first renewal note was made, payable to the plaintiff, on demand, for the same amount by the same makers, and was dated back to April 26, 1915, the date of the original note. In October, 1916, a second renewal note was made, also payable to the plaintiff on demand by the same makers, for the same amount, plus one year’s interest, viz.: $2,120, and was dated April 26, 1916, one year after the making and delivery of the original note. In August, 1917, a third renewal note, the one in suit, was made and delivered by and to the same parties, due one year after date, for the same amount plus accrued interest, viz.: $2,290, dated August 25, 1917. Certain letters claimed to have been written to plaintiff by defendant Freeman upon the occasion of the last two renewals will be referred to later. We agree with appellee’s counsel that, as a renewal note, the note in suit would doubtless depend upon the original note for its validity, whether it were so specified or not, so that the circumstances surrounding the making of the original note become important.

We glean from the statement of facts the following circumstances surrounding the giving of the original note. Both of the defendants were prior to April 8, 1915, interested in a 4,000-acre tract of land in the Province of Alberta, Dominion of Canada, under an ordinary land contract to purchase from Leffingwell & Egan as vendors and land owners, residents of Alberta, defendant Freeman and George B. Rhead being the original contract purchasers, but assignment having been made in February, 1914, of said contract interest to said Rhead, by reason of the sickness of said Freeman, he still having an equitable interest therein. Defendant Holmes with others had also by assignment or otherwise become equitably interested in such contract which was dated June 15, 1913.

In the fall of 1914, by correspondence between Freeman and Leffingwell & Egan, and the other parties in interest, it was proposed to abandon- the land contract terms, and incorporate the property involved, forming a Michigan corporation, whereby the parties so interested would take capital stock for an amount which their respective invested interest represented. With that end in view, Leffingwell visited Ann Arbor in December, 1914, and a conference was held by the interested parties and a tentative arrangement was made to incorporate under the name of The Michigan-Alberta Farming Company, with capital stock $100,-000, and Leffingwell signed the articles as one of the incorporators, and with defendant Freeman and Rhead made affidavit as to the value of the property. At that meeting it was also arranged that the interest of Leffingwell & Egan was $60,000 as unpaid purchase price of the lands under the land contract, and they were to take as payment $30,000 in cash, and $30,000 par value of the capital stock of the corporation.

To finance the company and raise the $30,000 cash going to Leffingwell & Egan, it was at first suggested and attempted to negotiate two mortgages of $15,000 each upon the property, each mortgage to cover one-half of the land. It was arranged that defendant Freeman would attempt to place one of the proposed mortgage loans, and Rhead the other. Rhead reported to defendant Freeman that he had arranged with the plaintiff for his loan; later Freeman in conversation with Clarkson, the cashier of the plaintiff, asked: “What is the use if we could get that money all in one place of dividing that up into two ?” Freeman’s efforts to place the $15,000 mortgage having failed, the matter drifted along for a time.

A little later Clarkson informed defendant Freeman that Rhead had arranged with Leffingwell & Egan that they would take, when the corporation was perfected, and the stock issued, $5,000 of Rhead’s stock in part payment to them of the $30,000 cash payment. Upon learning of this arrangement Freeman was dissatisfied and told Rhead that unless he would divide with him, so that he might furnish one-half of the stock thus going to Leffingwell & Egan, he would see that no corporation would be perfected. Later this matter was arranged by correspondence with Leffingwell & Egan to the end that it was agreed that they would also take $5,000 of Freeman’s stock in the $30,000 cash payment, thus reducing the pre-arranged cash payment to $20,000. Finally the plan for the two $15,000 loans was given up, and Freeman proposed to Clarkson to have the company, when perfected, make its three promissory notes of $10,000 each to one of its stockholders, and then also have the company execute its mortgage upon its lands to secure the stockholder payee of such notes, and thereupon such payee with five or six of the other stockholders were to indorse such notes, and then negotiate or discount them at a bank or banks, and thus obtain the $30,000 to satisfy the terms of the arrangement with Leffingwell & Egan. This plan met with approval. On April 8, 1915, the organization of the corporation was perfected, the capital stock being $100,000 — there being 10,000 shares of the value of $10 each. The amount of capital stock subscribed was the sum of $81,790. The names of the stockholders and the number of shares subscribed for by each were as follows:

Prank S. Leffingwell............................. 3,000
George B. Rhead................................ 1,912
Amariah F. Freeman............................ 1,912
Egbert G. Hoag................................. 210
Martin L. Belser................................ 210
Frank Emory Chase............................. 105
Harmon S. Holmes.............................. 210
Frank M. Stewart............................... 200
Edward D. Kinne............:.................. 105
Reuben Peterson ............................... 210
Joseph A'. Goodyear............................. 105

The articles were signed by all of the above named parties, and by them acknowledged before S. W. Clark-son, notary public, and said articles were filed with the secretary of State on April 9, 1915. The stockholders took action on April 13, 1915, as follows:

“On motion duly made and carried, that this company does, by and through its proper officers, the president and secretary when elected, as provided by its by-laws, execute and deliver its certain three promissory notes of $10,000 each dated April 14, 1915, payable six months from date, with interest at 6 per cent. to Harmon S. Holmes, as payee, who will indorse and negotiate the same, having also the signatures of certain others indorsed thereon, and with the moneys thus secured by such negotiations, the. said president and secretary are authorized to pay the same to Leffingwell & Egan of Warner, Alberta, Canada, to liquidate and pay to them the certain obligation or debt owing by this company to them in the purchase of property and lands for the use and purpose of this company, and for which this company now has transfer therefor; and shall likewise execute and deliver the mortgage of this company upon all of its lands and real estate so, as aforesaid transferred to it in the province of Alberta, Canada, by said Leffingwell & Egan, to said Harmon S. Holmes, as trustee, to fully indemnify and secure all of the indorsers of said notes, by reason of his respective name thus indorsed, and as fully set forth in said trustee mortgage, and the declaration of trust of said Holmes, running in connection therewith.”

On the same day, at a meeting of the directors of said company, the action of the stockholders aforesaid was adopted and approved. Defendant Freeman was elected president and Egbert G. Hoag, secretary. The notes and mortgage were executed, also a trust agreement by defendant Holmes, which latter instrument was acknowledged before S. W. Clarkson, notary public. The three $10,000 notes were made all bearing date April 14, 1915, due six months after date, payable to the order of Harmon S. Holmes, with interest at six per cent., after date, and were all indorsed by Harmon S. Holmes, A. F. Freeman, G. B. Rhead, E. G. Hoag, Reuben Peterson and M. L„ Reiser.

The cashier, Clarkson, had told Rhead and Freeman that the plaintiff could not take the whole loan of $30,-000, but Freeman took the three notes to him with the understanding that Clarkson would attempt to negotiate two of them in Detroit and keep one of them for the plaintiff bank. Clarkson, cashier, went to Detroit and sold two of the notes to a bank there, and returned with two checks for $10,000 each, the avails of two of the notes, one check payable to defendant Freeman and the other to George B. Rhead, and the plaintiff bank took the third note. It was the claim of defendants at the trial that Clarkson was not authorized to have said checks made payable to Freeman or Rhead, or to anybody other than defendant Holmes. However, they were indorsed respectively by Freeman and Rhead and turned over to the plaintiff.

We now come to the first real material conflict in the testimony, and that is as to what were the terms and conditions under which the plaintiff undertook to negotiate and purchase these notes, and under which it disposed of the avails. Rhead testified that he had originally made an arrangement with Leffingwell & Egan to turn over to them $7,000 of his stock in the company in place of that much cash, and he had so informed plaintiff’s cashier when he and Freeman were at work on their scheme to float two $15,000 loans. The cash thus to be held back by Rhead was to be turned over to the plaintiff in payment of a debt of $7,000 which Rhead owed the bank. The plaintiff’s cashier testified that the arrangement with Rhead was that, if the bank enabled Rhead and his associates to finance their land purchase, the whole of Rhead’s debt of $7,000 was to be paid out of the avails of the loan, Rhead having assured him that he had an arrangement with Leffingwell & Egan to take $7,000 in stock in lieu of $7,000 in cash. Defendant Freeman, on the other hand, testified that Rhead and Clarkson told him that $5,000, and not $7,000, was to be sent by Rhead in stock in lieu of cash.

We compile from the testimony of Clarkson and defendant Freeman their claims as to what took place .at the bank on April 21st and 26th. Clarkson testified in substance as follows in his direct-examination: That the money was procured from the bank in Detroit, and from the plaintiff bank, as agreed, on the three notes. He went to Detroit and obtained two checks for $10,000 each, one payable to defendant Freeman and one to Rhead. They were indorsed respectively by them, and they asked for a draft payable to Leffingwell & Egan. When they came to the counter to get it, the statement was made by Rhead, or the witness, that there was $2,000 to come out; that Rhead had made arrangement for $2,000 more of his stock to be taken by Leffingwell & Egan, and a draft was finally issued for $18,000 and turned over to Freeman. Defendant Freeman stated that he did not know anything about the difference between the $18,000 and $20,000, and did not understand that. Witness told him that was the arrangement which the bank had with Rhead as the condition of making the loan and putting through the transaction, and that Rhead had assured the bank that he had the arrangement made, and the bank was to'keep $2,000; that so far as the bank and the witness were concerned they had nothing whatever to do with the arrangements that were made, or were being made between the company and the men making up the company, and Leffingwell & Egan. Witness did not know that anything was said there, at that time, with regard to raising this additional $2,000; that Freeman accepted the draft under protest, saying he didn’t understand there was any such agreement, and he didn’t know that it would be accepted in that way. “That is all that was done that day.” Witness stated to Freeman that that was the agreement with Rhead in regard to that matter. A day or two after Freeman came in and said he had a telegram from Leffingwell & Egan, and they said they had no such arrangement with Rhead, and they would need and must have $2,000 to send up there. Witness thought Holmes was not present at that time; that there was a lapse of several days and Freeman came in again and said he would have to have the money. Witness said the bank had carried out its contract exactly as it had agreed, and if there was anything wrong he should settle that with Rhead; that finally one day he and Holmes came in (that was four or five days after the original arrangement), and said they had got to have that $2,000 to send to Leffingwell & Egan. Witness said:

“All right, gentlemen, you can get it any . way you like, we have fulfilled our part of the contract, and I refuse to go any further with it; I will have nothing more to do with it; we have fulfilled our part as we agreed exactly between ourselves and Mr. Rhead.”

Four or five days after that Freeman and Holmes said they must have that money to send to Leffingwell & Egan. Witness said: “The bank has fulfilled their part of the contract, you can do as you have a mind to”; that Holmes then said: “You have got our money, $2,000, we want to send it up there.” Witness said:

“No, we have not, we did exactly as we agreed when we undertook the negotiation of this loan, the bank has done everything, Mr. Rhead has done as he agreed, if there is any more to be done it is between Holmes, Freeman and Rhead, the bank has done everything it agreed to in the whole matter.”

Thereupon Holmes and Freeman went out of the bank. Soon after they came back with Judge Kinne (the president) and came into witness’ office and had a talk with Judge Kinne that they had got to have this money, that they had got to send it up in order to close this contract, and that Leffingwell & Egan refused to do it on any other basis; that after talking with Judge Kinne for a time the latter said to the witness, “You make a note and let those gentlemen sign it and give them a draft for $2,000”; that the note was drawn up, and witness did not remember whether he, or Freeman, or the teller drew it; that it was signed by Freeman and Holmes and handed to the teller, and a draft was given them. That the only bookkeeping conditions that required the taking of the note were, “that if we loan money we have to take a note for it.” And that no paper, letter or any other writing whatever accompanied this original note.

The testimony of defendant Freeman is very voluminous, covering more than 100 pages of the printed record. By reason of much reiteration it has been difficult to state its substance concisely. Referring to the transactions at the bank on April 21st and April 26th, and after testifying that the making of the Detroit checks payable, one to him and one to Rhead, was a mistake, which he called Clarkson’s attention to, and that they were finally indorsed and passed back to Clarkson, the witness saying: “Mr. Clarkson, give me a draft, you know these are going to Leffingwell & Egan,” to which Clarkson replied, “Yes,” the witness testified that a few minutes later Clarkson called him and said: “Say, I want to give you a draft for $18,000, Mr. Rhead has an arrangement, so he says, with Leffingwell & Egan for $2,000 more of his stock, so that I only want to give you a draft for $18,000”; that witness replied, “I don’t know anything about that, this is the first I ever heard of it”; that Clarkson replied, “that is some arrangement Mr. Rhead has with Leffingwell & Egan”; to which witness replied:

“I don’t believe it, it cannot be possible, after I have just received recent letters from Leffingwell & Egan that I am to send it back there as soon as possible, and you are a little late because you have been down east, and those letters say, ‘we understand there are $20,000 to send.’ ”

Rhead was called up, and on being interrogated said: “Yes, I have that arrangement with Leffingwell & Egan.” Clarkson repeated that the arrangement would go through all right, and Freeman reiterated that it would not, and that he wanted a draft for $20,-000. Clarkson asked Rhead to indorse $2,000 of stock and give it to Freeman, and the latter reiterating that there was no use doing that, and that he wanted a draft for $20,000, Clarkson said to witness, “No, Freeman, I wish you would let this go this way. I want to collect this matter against Mr. Rhead.” To which witness replied:

“I will be pleased to do anything for you, Mr. Clark-son, I cannot do this, it is not my money, I am carrying it out for the benefit of the company, and Mr. Holmes has indorsed $30,000 of paper, we all have, it is to go for the purpose as we understand it, now I want you to let this go.”

Whereupon Mr. Clarkson handed out a draft payable to Leffingwell & Egan for $18,000 and the stock. Witness testified that he did not so consent, but that he took the draft under protest, as Clarkson had testified ; that in reply to a telegram sent by witness, Leffingwell & Egan, on April 22d, telegraphed witness:

“Absolutely no agreement with Rhead in regard to this deal, send on the other $2,000 or there is nothing doing”;

that as soon as he received that telegram witness showed same to Clarkson, when he reiterated his belief that it would “work out all right in a few days.” 0;n April 26,1915, witness and defendant Holmes went to the bank and Holmes said to Clarkson, “We must have that $2,000”; the latter insisted that it should be put off. Holmes said:

“We have got to have it. Look what has happened. My name has gone with the others to the Detroit banks for $20,000, a draft for $18,000 has gone in, Freeman and Rhead have had their $5,000 each.”

Finally Holmes said, “Freeman, come on, I want to go over and talk with Judge Kinne, the president of this bank.” They accordingly went together to the office of the judge, and had a talk with him. Witness said to the judge:

“We have been forming up that corporation, financing it, whereby we were raising $30,000 which was going over to Leffingwell & Egan, less an arrangement that had been made of $5,000 each to Rhead and me, and the other day when matters came together through Rhead claiming that he had an arrangement for $2,000 more, making $7,000 of his stock that was going to Leffingwell & Egan, whereby there would be only $18,-000 going to them. That $18,000 has gone and $2,000 of Rhead’s stock has gone as well. Here are telegrams from Leffingwell & Egan saying there is no such arrangement. Your bank over there has $20,000 of our money, and we have got to have $2,000 to complete this arrangement because so much time has passed. The judge said, T cannot see any reason why, but what you are entitled to it, if it was raised for that purpose you tell me.’ I said, ‘Yes, certainly, the mortgage has been given to secure the different indorsers on that paper, and that $30,000 was raised for that special purpose, it has got to go so.’ He said, T cannot see any reason why it should not.’ I said, ‘Will you come over to the bank now and talk this matter over with Mr. Clarkson?’ He said, ‘Yes,’ and he put on his hat and we three then went over to the First National Bank * * * and we began to talk with Mr. Clarkson about this matter.”

The conversation in the bank is then given, in the course of which the witness testified:

“Mr. Holmes said: ‘It has got to come right now, if you don’t pay this immediately and give us the $2,000 of our money, I will sue this bank before night.’ Judge Kinne laughed and said, T would not blame you if you did, I guess you ought to.’ Mr. Clarkson said, ‘If I do it right away I shall have to charge off $2,000, for I have given up the paper of Mr. Rhead’s and the security that went with it, I have given up $7,000 of his notes and his life insurance policy that was along " with it.’ ”

After much more of repetition the witness testified:

“Mr. Clarkson said again, ‘Give a note for a short time, it will come out all right,’ having first said, ‘Lay in a note for a short time, for you know, as a banker, that I shall have to charge this off, I have given up the note of Mr. Rhead and the security, I will not have anything on the books to represent what is given up.’ Mr. Holmes said, T don’t know about that, I appreciate you may have to charge it off, but I must have that money to send up to the bank.’ * * * After a few minutes Mr. Holmes said, ‘Mr. Clarkson, if this will accommodate you I will lay in my note here, but understand, I am only doing it to accommodate you and not be liable.’ ”

Whereupon the note was filled out and signed by the defendants, and handed to Clarkson and the draft was drawn and delivered.

Judge Kinne testified in rebuttal as follows:

“Q. It has been testified by Mr. Freeman that you accompanied him to the First National Bank with Mr. Holmes, and while there stated to Mr. Clarkson, the cashier of the bank, that he, Mr. Clarkson, should give them $2,000 in money from the bank because it belonged to them; did you ever make such a statement?
“A. I think not. I do not think I had any occasion to make such a statement as that. I do not think I had any such knowledge. I never stated that I authorized or instructed Mr. Clarkson to deliver this note on the theory that it was not an obligation that had to be paid.
“Q. State whether or not you ever made such a statement as that to either of these gentlemen?
“A. I never did.”

The letters testified to by defendant Freeman as having been sent to the cashier of plaintiff upon the respective renewals are as follows:

“October 14, 1916.
“First National Bank,
“City.
“Dear Mr. Clarkson:
“I have had another conference with Mr. H. S. Holmes about the note of $2,000, dated April 26th, 1915, and taking the one up and giving another in its stead — the one attached for $2,120, dated April 26th, 1916.
“Mr. Holmes has now authorized me to deliver this last-mentioned note to you, but on the understanding, however, only under the relation existing when the first note was given which will control the situation— in this respect no change; and the fact that $120 is added, as manifestly the interest charge, shall in no way change or affect that relation.
“And Mr. Holmes also says that he can well see, on account of Federal banking department rulings and for your bank bookkeeping conditions, some such adjustment, for the time being, should be made, and he is pleased, after thinking it all over, to help out. I am,
“Very truly,
“A. F. Freeman.”
“August 23, 1917.
“Mr. S. W. Clarkson, Cashier, etc.,
“Ann Arbor, Michigan.
“My dear Clarkson:
“I saw Mr. Holmes here in Detroit today and I brought up the subject of signing the new note for $2,290, dated August 25, 1917.
“I had no little trouble in succeeding in getting him to again sign, for he always argues that your bank has the same amount of money in your hands belonging to him which would take care of this matter. However, I urged him strongly and finally he signed the note but only authorizes me' to deliver it to you as the other one was as set forth in my letter to you of October 14th last, so under the same terms and understanding I am delivering this note to you herein signed by both of us. And we are doing this to accommodate the situation which we know arises in the banking department, and upon that understanding we are both pleased to help out and satisfy the department and your bank bookkeeping conditions. And I will be able to talk with you in some more detail when I reach home from Chicago, possibly not before next Monday. I am,
“Very truly,
“A. F. Freeman.”

The foregoing testimony is here set out at considerable length to show that there were disputed questions of fact which were properly submitted to the jury. The plaintiff’s requests to charge do not appear in the record. Defendants presented 19 requests to charge, nearly every one of which ended with an absolute direction of verdict for defendants. While refused as presented, many of them were modified and given, to be applied if the jury found the facts as claimed by defendants. The case was submitted to the jury, and they were, among other things, instructed as follows:

“2. If you find from the evidence in this case that the Michigan-Alberta Farming Company or those interested in the company authorized Freeman and Rhead to negotiate with the bank' for the loan of $30,000 and that the Michigan-Alberta Farming Company allowed Freeman and Rhead to use its three promissory notes for the sum of $10,000 each indorsed by the interested parties, and that these notes were brought to the bank by Freeman and Rhead, or by one of them, and that the plaintiff bank dealt with Freeman and Rhead in regard to them, then so far as the bank was concerned, Freeman and Rhead had control of the notes and the bank was not obliged to look to any one else for authority to take the notes or deal with the proceeds. Freeman, Rhead and the bank being the principals involved in the transaction, could make any agreement they chose to make in regard to the notes or their proceeds. Therefore, if you find from the evidence in this case that when Freeman learned from Mr. Clark-son that Rhead claimed to have an agreement with Leffingwell & Egan to accept $7,000 of his stock in lieu of that amount in cash and that he first objected to such amount being retained by the bank for that purpose, and when he found that the bank would not go on with the transaction unless said $7,000 was retained and applied by the bank upon Rhead’s debt to the bank, that he then consented to such application of said $7,000, then the plaintiff bank did have the right to retain the sum of $7,000 and apply it upon Rhead’s debt in the bank.
“3. If you find from the evidence in this case that the plaintiff bank distributed the proceeds of the three $10,000 notes as it was directed to do by Freeman and Rhead, provided you further find from the evidence that the Michigan-Alberta Farming Company authorized Freeman and Rhead to negotiate the $30,000 loan upon its three $10,000 promissory notes, and allowed Freeman and Rhead to deal with the proceeds thereof in settling with Leffingwell & Egan for the land in question, then the plaintiff bank at the time it issued the $2,000 draft and took the first note signed by Freeman and Holmes, the plaintiff did not have $2,000 in its hands belonging to the defendants or to the Michigan-Alberta Farming Company, and the plaintiff will be entitled to recover in this action the sum of $2,290 and interest thereon from the 25th day of August, 1917, to this date, interest to be computed at the rate of 6 per cent, per annum.”

Error is assigned upon this part of the charge. There was a motion for a new trial, presenting substantially the same questions as are presented in the assignments of error. The motion was denied, and exceptions duly taken.

In this court, one of the principal propositions urged by appellants is that the note in suit was delivered for a specified purpose only and was never to be enforced. The note was absolute in form. It is a general rule of law that parol evidence is inadmissible to vary or contradict a contemporaneous written contract. If a note be absolute upon its face, no evidence of a verbal agreement, made at the same time, qualifying its terms, can be admitted. Phelps v. Abbott, 114 Mich. 88, 91.

In both of the letters above set forth reference is made to the “understanding” when the first note wás given, “which will control the situation.” It is not claimed that either of the renewal notes changed the original situation. The pertinent question then is, What were the circumstances under which the first note was given? These may be inquired into as bearing upon the consideration for that note. Lovell v. Willard, 28 Mich. 346; Macomb v. Wilkinson, 83 Mich. 486; Kulenkamp v. Groff, 71 Mich. 675 (1 L. R. A. 594); Kelley v. Guy, 116 Mich. 43; Graham v. Alexander, 123 Mich. 168; Nowack v. Lehmann, 139 Mich. 474. The evidence being in conflict there was here a question of fact for the jury.

It is also urged by appellants that the full legal title to the $20,000 fund raised was in defendant Holmes, and the equitable title was in the Farming Company. We think that is not the precise question involved. Defendant Freeman was the president of the company. There was evidence that he and Rhead had been given authority by the principal to negotiate the notes.

There is authority to the effect that in the absence of knowledge of any limitation upon the authority apparently conferred by the principal, a bank may rely upon such apparent authority. 3 R. C. L. p. 609; Merchants, etc., Nat. Bank v. Furniture Co., 70 L. R. A. 312 (57 W. Va. 625, 50 S. E. 880).

The apparent authority of an agent to act as the representative of his principal is to be gathered from all the facts and circumstances in evidence, and, ordinarily, this is a question of fact for the jury’s determination. 21 R. C. L. p. 854 et seq.; Austrian & Co. v. Springer, 94 Mich. 343, and cases cited. It was probably in view of these principles that the court charged the jury as above stated.

It is further claimed by appellants that there was no consideration for the note in suit; that no loan was made nor benefit given to defendants, and that they secured no fund which that note represents. To use a common expression this “begs” the principal question in the case. If the testimony on behalf of the plaintiff is true, a loan of $2,000 was made to the defendants, and they obtained that amount of money when they gave the note. There was undoubtedly some dispute between the cashier and defendant Freeman, but if there was a bona fide settlement of the matter in dispute that would furnish a valid consideration for the note.

Before bringing the instant suit the plaintiff filed a bill in chancery against Rhead to compel him to deliver to the bank a note for $2,000 and an insurance policy, as security, to take the place of the notes and securities surrendered to him. Upon the hearing the bill was dismissed. Defendants contend that by such conduct the plaintiff is estopped from maintaining the instant case. The elements of an estoppel are not present here. The claimed inconsistent conduct of plaintiff, and its cashier, was for the consideration of the jury.

Was matter prejudicial to appellants admitted in evidence? While counsel do not refer to any assignment of error, they do complain that the court allowed “counsel to journey with the jury over the "Canadian Northwest’ and enlarged upon that for "all they were worth.’ ” It is difficult to answer such an assertion. We infer that counsel mean to complain that in the cross-examination of defendants they were required to state what finally became of the lands upon foreclosure of the mortgage — that defendants were still interested in them, etc. The mortgage and declaration of trust had been offered in evidence by defendants. While the evidence complained of was remote, we cannot say that the admission of this testimony was prejudicial, or that it resulted in a miscarriage of justice. (See section 14565, 3 Comp. Laws 1915.)

By an assignment of error it is claimed that the court erred in denying the motion for a new trial. In that motion it was stated that the verdict was against the clear weight of the evidence and against the charge of the court. We do not agree with either contention, and it is unnecessary to refer to our numerous decisions stating the rules that control such questions. We think that the weight and sufficiency of the evidence were peculiarly questions for the jury, and warranted the verdict rendered. We have spent much time in the examination of this record, and have examined and carefully considered every assignment of error. In our opinion the errors assigned are not well taken. We think the case was, fairly tried and properly submitted to the jury, and finding no reversible error in the record, the judgment below is affirmed.

Steere, C. J., and Moore, Fellows, Clark, Bird, and Sharpe, JJ., concurred.

The late Justice Brooke took no part in this decision.


source: Caselaw Access Project

author: Steere, C. J.

license: Public Domain

text:
    TOWNSHIP OF ZILWAUKEE v. SAGINAW-BAY CITY RAILWAY CO.
    1. Contracts — Construction — Evidence — Parol Evidence — Written Contracts.
    The terms of a written contract cannot be altered or enlarged by proof of contemporaneous or previous oral agreements upon the subject.
    2. Same — Construction—Ambiguous Contracts.
    There is no room for construction or explanatory evidence of the unexpressed intention of the parties where the wording of a written contract between them is not obscure or ambiguous.

      3. Same — Patent Ambiguity.
    A patent ambiguity is one apparent upon the face of the instrument, arising by reason of inconsistency, obscurity, or an inherent uncertainty of the language adopted, such that the effect of the words in the connection used is either to convey no definite meaning or a double one.

      4. Same — Latent Ambiguity.
    A latent ambiguity is defined as one which arises not upon the words of the will, deed, or other instrument, as looked at in themselves, but upon those words when applied to the object or to the subject which they describe.
    5. Same — Extrinsic Evidence — Latent Ambiguity.
    Extrinsic evidence is not, as a rule, admissible to explain or remove a patent ambiguity, but is admissible to show a latent ambiguity, if one exists, and to remove it.
    6. Same — Omission ob Mistake Not Ambiguity.
    An omission or mistake is not an ambiguity.
    7. Same — Franchises — Construction — Street Railways — Ambiguity.
    A franchise contract between a township and a street railway company, to construct a railway through said township, and providing that the rate of fare through said township should not exceed five cents per passenger per trip “from the township of Zilwaukee to Genesee avenue in Saginaw,” held, not ambiguous for failure to state the exact point on Genesee avenue where transportation was to begin and end.
    8. Same — Practical Construction Controlling Only Where Ambiguous.
    Practical interpretation by the parties can only be regarded where the contract is of doubtful or ambiguous meaning.
    9. Same — Practical Construction Not Controlling to Change Unambiguous Contract — Injunction.
    There being nothing doubtful in the wording of the franchise contract between plaintiff township and defendant street railway company as to the rights of passengers thereunder, the fact that defendant had, for 23 years, been carrying passengers farther for the fare provided therein than required, held, not to entitle plaintiff to an injunction restraining defendant from charging extra fare beyond the point where defendant’s railway intersects Genesee avenue in said city of Saginaw. '

      Appeal from Saginaw; Snow (Ernest A.) and Brown (Clarence M.), JJ.
    Submitted October 13, 1920.
    (Docket No. 71.)
    Decided February 3, 1921.
    Bill by the township of Zilwaukee against the Saginaw-Bay City Railway Company to enjoin an increase of rates of fare. From an order denying a motion to dismiss and granting a temporary injunction, defendant appeals.
    Reversed, and bill dismissed.

      Frank A. Rockwith, for plaintiff.

      Weadock & Weadock, for defendant.
   Steere, C. J.

This controversy involves the right of defendant to charge passengers to and from Zilwaukee township additional fare within the city of Saginaw beyond where its interurban line from the north intersects Genesee avenue on the west side of Saginaw river. Defendant owns and operates an interurban electric railway line running on the west side of Saginaw river between Saginaw and Bay City. It passes through the township of Zilwaukee, which lies immediately north of Carrollton township, which joins the city of Saginaw on the north. It also owns and operates urban street railways in the cities of Saginaw and Bay City under franchises from said municipalities. The present city of Saginaw lies on both sides of the Saginaw river and includes the two former municipalities known as the city of Saginaw and city of East Saginaw, separated only by the Saginaw river which was the boundary line between them. A thoroughfare known as Genesee avenue runs east and west across the northern portion of the west side and continues east across the river into and through the east side, continuing east for some distance and then diverging to the southeast within the city and is said to be crossed or intersected by 23 streets. On the east side, running northeasterly and southwesterly, nearly parallel with the river, Washington avenue intersects Genesee. A well-known hotel named the Bancroft House was located at the southwest corner of this intersection. On the west side somewhat further back from the river and also running practically parallel with it a main thoroughfare called Michigan avenue intersects Genesee avenue also.

Defendant’s line operates through the township of Zilwaukee under a franchise right granted its predecessor by the township authorities in 1894, to which it succeeded. The franchise was granted to three applicants named Frank E. Snow, William Jackson and John W. Nicol, who in their proposition and application to the Zilwaukee township authorities, presented for them by one Hart, said their purpose was—

“the construction of an electric street railway, from the city of Saginaw to the city of West Bay City, Michigan, upon the west side of the Saginaw river, and respectfully ask your honorable board to grant, convey and quitclaim to them, their successors and assigns, the exclusive and perpetual right to construct, maintain and operate said railway with all necessary wires, poles, fixtures, conduits and appliances whatsoever with the right to collect a rate of fare of five cents per passenger per trip in and through said township, upon and along the following route, that is to say: Beginning at the northerly boundary of the village of Carrollton, running thence northerly along the Saginaw road or Westervelt avenue and through private lands to the township of Kochville or the northerly boundary of said township of Zilwaukee.”

By a resolution with introductory recitals in which it was said, “the construction of said railway is deemed to be a valuable improvement to the property along said road and to the township aforesaid,” the “prayer of said petition” was granted on September 12, 1894, with the following paragraph as to rates, which is the subject of controversy here, added:

“It is agreed between- the parties that the rate of fare on said railway through said township shall not exceed five cents per passenger per trip, ‘from the township of Zilwaukee to Genesee avenue in Saginaw,’ except that after 12 o’clock p. m. double fare may be charged.”

Defendant’s interurban line extending south into the city of Saginaw first touches Genesee avenue at the corner of Michigan and Genesee avenues on the west side of the river.

It appears that up to shortly before November 4, 1919, defendant had not charged any extra fare within the city limits beyond the intersection of its interurban line with Genesee avenue to Zilwaukee passengers- who desired to begin or end their trip at the corner of Washington avenue and Genesee avenue on the east side of the river near the Bancroft House; but thereafter it took steps to and did collect an additional fare on the street railway within the city limits from those desiring to ride beyond where the interurban line at Michigan avenue connected with Genesee avenue on the west side of the river, claiming the right so to do under its city franchise and the laws of the State.

Plaintiff thereupon filed this injunction bill to restrain defendant from charging more than a five-cent fare to interurban passengers on its line between any point within its township limits and the Bancroft House, claiming that the Zilwaukee franchise as understood and agreed upon between the parties and as construed in practical application made the Bancroft House the southern terminal of the interurban line for such passengers without extra charge. On filing the bill plaintiff made application for a temporary injunction. Defendant appeared and made a motion in the nature of a demurrer to dismiss the bill of complaint on various grounds; also answered and opposed the motion for a temporary injunction in case its motion to dismiss did not prevail. The legal questions involved were argued both as a demurrer on said motion to dismiss and on the pleadings supported by affidavits. The court overruled defendant’s motion to dismiss and granted plaintiff’s motion for temporary injunction. Defendant took an appeal by permission of this court from denial of its demurring motion to dismiss plaintiff’s bill, and also appealed from the order granting a temporary injunction. The two appeals were heard together.

Defendant urges that the written franchise granted by plaintiff township to Snow, Jackson and Nicol is clear, plain and unambiguous both in stating the rate of fare and in fixing the terminal point to and from which Zilwaukee passengers would be carried for that price at the intersection of its. line with Genesee avenue, and is therefore not subject to be changed by parol or extraneous evidence, that no allegation appears in the bill of complaint of Hart’s authority as agent to make a franchise contract other or different than the written one made and signed by the parties, for which reasons its motion to dismiss should have been granted; that the mere fact defendant in more auspicious times did not exact from its passengers to and from Zilwaukee an additional fare within the city limits, was not as a proposition of law a practical construction of the franchise and it did not thereby surrender any of its rights under the same, that the order granting a preliminary injunction is an adjudication upon the entire matter in difference and in its nature ,a final disposition of the case.

On the part of plaintiff it is contended that the order granting a preliminary injunction was discretionary and there was no abuse of discretion, that it only maintains the status quo between parties, does not divest defendant of any legal right, is not final and therefore not appealable, that the application was supported by affidavits and therefore not defective because based on information and belief; that it is not sought by affidavit or other extraneous evidence to change the franchise provision in question, but such proof is offered in explanation of its ambiguity, the provision as to fares being ambiguous because in it the point on Genesee avenue where the interurban transportation is to begin and cease is not fixed, and the same has been construed by defendant, and all parties in interest, for the past 28 years as meaning the Bancroft House.

At least the best, if not the exclusive, proof of the franchise contract of 1894 upon which plaintiff relies for an injunction is the evidence put in writing by the parties at the time. Hart as agent of the three parties to whom it was granted presented their petition therefor in writing to the township board. It asked for a franchise, or the right, to construct a portion of its continuous interurban line between the city of Saginaw and West Bay City, “on the west side of the Saginaw river,” through Zilwaukee township along a-described route, “with the right to collect a rate of fare of five cents per passenger per trip in and through said township.” The township board by a preamble and resolution in writing, called “this franchise,” reciting essential features of the proposition and' its desirability and value to the township, granted the “prayer of said petition” as offered, except that it extended the distance passengers should be carried for five cents beyond a trip through Zilwaukee township, as the petition proposed, to a continuous ride from said township through Carrollton township “to Genesee avenue in Saginaw.” This franchise, granted plaintiff September 12, 1894, with plaintiff’s modifying paragraph requiring a longer ride for their proposed yate of fare added, was accepted by the petitioners on September 19, 1894, and became a binding contract in writing between the parties. Nowhere in the petition or franchise is the Bancroft House or the east side of the river mentioned, or any suggestion of an intent to include transportation to any place in the city along Genesee avenue or any other street on the city line after Genesee was reached. The accepted proposition was for a line between the two cities on the west side of the river, and “Genesee avenue in Saginaw” was on the west side of the river. Failure to specify an exact spot on that street would not affect the validity of the agreement. That provision of the contract was plain, binding and capable of being fully performed as it read. That it did not include other, or more specific, provisions which the parties may have had in mind, or even orally agreed upon, in no sense makes it ambiguous. It is elementary that the terms of a written contract cannot be altered or enlarged by proof of contemporaneous or previous oral agreements upon the subject. There is no room for construction or explanatory evidence of the unexpressed intention of the parties where the wording of a written contract between them is not obscure or ambiguous.

Of the claimed ambiguity it is said in the briefs of plaintiff’s counsel that the provision as to fares “is ambiguous because the point in Genesee avenue where transportation is to begin and to cease is not fixed,” which, it is further said, “renders the franchise indefinite, obscure and creates a latent ambiguity, because in view of the allegations of the bill one cannot tell from the franchise itself what particular part of Genesee avenue patrons of the road were to be conveyed to” and therefore extraneous proof was admissible to clear this uncertainty by showing what the parties actually meant, said and agreed upon at the time.

A patent ambiguity is one apparent upon the face of the instrument, arising by reason of inconsistency, obscurity or an inherent uncertainty of the language adopted, such that the effect of the words in the connection used is either to convey no definite meaning or a double one. As opposed to a patent ambiguity, a latent ambiguity is defined as one—

“which arises not upon the words of the will, deed, or other instrument, as looked at in themselves, but upon those words when applied to the object or to the subject which they describe.” Black’s Law Dictionary.

Extrinsic evidence is not as a rule admissible to explain or remove a patent ambiguity. It is admissible to show a latent ambiguity if one exists and to remove it.

Plaintiff’s proposition as to a shown latent ambiguity is stated in counsel’s brief as follows:

“The language of the franchise, viz.: ‘from the township of Zilwaukee to Genesee avenue in Saginaw,’ upon its face may seem perfectly plain, but by an examination of the bill of complaint it appears that Genesee avenue extends for a distance of one and a half miles,_ lies partly upon the east and partly upon the west side of the Saginaw river, is intersected by 23 intersecting streets, and this collateral matter makes the meaning of the language of the franchise uncertain, because from the franchise itself it does not appear what particular part or point of Genesee avenue is intended.”

And the removal or “interpretation” of the disclosed latent ambiguity is claimed to be shown by the statement in its bill, supported by affidavits, that at the time the franchise was granted the agent of the three grantees represented—

“that they proposed to and would lay their tracks so that after entering the city limits of the city of Saginaw on the west side of the Saginaw river that their said railway would cross said Saginaw river to the east side thereof, and from such crossing point would extend to Genesee avenue at a point in the immediate vicinity of the Bancroft House hotel situated at the corner of Genesee and Washington avenues in the city of Saginaw, on the east side of said river, and that all passengers traveling upon the road would in any event be entitled to ride to the east side of the Saginaw river to Genesee avenue at a point at or near the Bancroft House hotel, at the corner of Genesee and Washington avenues in the city of Saginaw, Saginaw county, Michigan, for a fare of not to exceed five cents per passenger, except,” etc.

It is apparent that the language of the franchise under consideration is in itself free from ambiguity. Plaintiff’s counsel admit that “upon its face, it may seem perfectly plain.” The extraneous facts admittedly existing at that time, by which it is proposed to show a latent ambiguity, create no doubt or difficulty as to a proper application of the language quoted to the subject-matter of the contract or its capability of performance according to the plain meaning of the words used. The subject-matter of the petition and franchise was an interurban railway on the west side of the Saginaw river to run between West Bay City and Saginaw, passing through Zilwaukee township, carrying passengers through and from said township “to Genesee avenue in Saginaw,” for a five-cent fare. The railway was to be, and the city with the avenue in it both were, on the west side of the river. The language of the written franchise certainly expressed, then as now, in simple, non-technical language a legal obligation capable of performance without any uncertainty as to the object or extent of the engagement which nowhere in its scope crossed to the east side of the river nor mentioned any such place as the Bancroft House. The paragraph providing a longer ride for five cents than the petition proposed was plaintiff’s, put by it in the franchise it granted. It was as simple and easy to insert “Bancroft House” as “Genesee avenue” if that was the oral agreement. An omission or mistake is not an ambiguity. Parol evidence under the guise of a claimed latent ambiguity is not permissible to vary, add to or contradict the plainly expressed terms of this writing or to substitute a different contract for it to show an intention or purpose not therein expressed. The principles of law applicable to the situation here are concisely summed up, with citation of abundant sustaining authority, in the following texts:

“The rule that where an ambiguity is created by parol it may be removed by parol, was never intended to violate the rule that a writing shall not be contradicted or explained by inferior testimony.” 22 Corpus Juris, p. 1194.
“It is a general rule that where the words of any written instrument are free from ambiguity in themselves, and where external circumstances do not create any doubt or difficulty as to the proper application of those words to claimants under the instrument, or the subject-matter to which the instrument relates, such instrument is always to be construed according to the strict, plain, common meaning of the words themselves, and that in such case evidence de hors the instrument, for the purpose of explaining it according to any surmised or alleged intention of the parties to the instrument, is utterly inadmissible. In short, the words of an instrument, unambiguous in themselves, cannot be controlled by proof that the parties used them with a definite and limited meaning, for the purpose of that particular instrument.” 10 R. C. L. p. 1070.

Plaintiff’s contention that the practical construction put upon this franchise contract by the parties themselves is controlling against the strict construction now contended for, is necessarily predicated upon the proposition that the writing is open to construction in the particular claimed, for practical interpretation by the parties can only be regarded where the contract is of doubtful or ambiguous meaning. Extraneous evidence is not allowable to interpret a writing which has no need of interpretation.

“If clear and free from ambiguity, the intention shown upon its face if written must be followed, though contrary to the practical interpretation of the parties, and even if such practical construction has been acquiesced in for a long period of time.” 2 Page on Contracts (1905), § 1126.
“Before any appeal can be made to practical construction, it must appear that the meaning is doubtful.” Fairbank v. United States, 181 U. S. 283, 311 (21 Sup. Ct. 648).

We find nothing doubtful in the meaning of the phrase “from the township of Zilwaukee to Genesee avenue in Saginaw” in the connection used as a part of the franchise contract.

This is purely an injunction bill. No legally tenable ground is shown in the bill itself or the affidavits filed in its support against the plain and explicit wording of the contract which clearly expresses the rights and duties of the contracting parties.

The temporary injunction will be dissolved and plaintiff’s bill dismissed, with costs to defendant.

Moore, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.

The late Justice Brooke took no part in this decision.


author: Clark, J.

text:
    BATTIGE v. WALKER SHOE CO.
    1. Corporations — Receivep.s — Dissolution — Evidence — Sufficiency.
    On appeal from the decree dismissing a minority stockholder’s bill for the appointment of a receiver for a corporation, for its dissolution, and for an accounting, proof held, insufficient to show that plaintiff was ever excluded from participating as an officer or stockholder in the conduct of the business of said corporation.
    2. Same — Estoppejy
    Where the bill alleged that defendant corporation was incorporated, and plaintiff signed the annual report, he is estopped from denying the fact of said incorporation.
    3. Same — Fraud—Evidence—Sufficiency.
    Plaintiff’s claims that defendant corporation was never incorporated, and that the effort to effect such was a mere sham to defraud him, held, not supported by the evidence.
    4. Same — Usurpation of Authority — Evidence—Sufficiency.
    Plaintiff’s claim that the individual defendant’s usurpations entitled plaintiff to distribution of the assets of the corporation, held, not supported by the evidence.
    Appeal from Wayne; Hunt (Ormond F.), J.
    Submitted October 12, 1920.
    (Docket No. 44.)
    Decided February 3, 1921.
    Bill by John C. Battige against the Walker Shoe Company and others for the appointment of a receiver, the dissolution of defendant corporation, and an accounting. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Rood & Visscher, for plaintiff.

      Guy W. Moore and Hal P. Wilson, for defendants.
   Clark, J.

The facts in this case as appear from the admitted allegations in the bill of complaint and the testimony of the defendant Walker, he having been the only witness sworn, are substantially as follows: In 1917 the plaintiff and the individual defendants organized the defendant corporation under Act No. 232, Pub. Acts 1903 (2 Comp. Laws 1915, § 9017 et seq.). The amount of the capital stock was fixed at $5,100, of which Walker subscribed for 300 shares, plaintiff 200 shares, and Marsteller 10 shares, each of the par value of $10. The amount actually paid in was stated to be $2,000, of which $700 was paid in cash and the stock, fixtures, etc., of a shoe business, theretofore conducted by plaintiff, accepted as payment at a valuation of $1,300. The articles of association were filed in the office of the secretary of State on February 11, 1918, and with the county clerk on September 24,1919. The money for the purchase of Marsteller’s stock was loaned him by Walker and has not been repaid. On May 12,1919, the annual report of the corporation for the year 1918 was filed with the county clerk of Wayne county. It is signed by plaintiff and defendant Walker and was sworn to by the latter on February 28, 1919. In it the amount of the capital stock paid in in cash is stated to be $4,000 and in property $1,000. The personal property is stated to be worth $8,862.70 and the cash on hand $196.81. The liabilities are given as $3,575.37.

By a stipulation of counsel it appears that the defendant Walker testified that there was a meeting of the stockholders, at which plaintiff was present and at which he was elected president, Marsteller, vice-president, and Walker, secretary and treasurer, and that this is denied by plaintiff. No minutes have been made of any stockholders’ or directors’ meetings. It is admitted by the stipulation that plaintiff has at all times had access to the books of the corporation, of which a somewhat regular set has been kept.

While the bill of complaint alleges that Walker, assuming to be secretary and treasurer, has taken the exclusive possession and management of the business and excluded plaintiff from any participation therein, and on information and belief it is charged that Walker “has had but one purpose which he has pursued * * * viz., to cheat, wrong and defraud this plaintiff out of his said property and business,” it may be here said that there is no proof to sustain either of such charges. The bill prays that the affairs of the corporation be wound up and its assets be disposed of and distributed, and to that end a receiver is asked for.

It appears from the testimony of defendant Walker that he drew out a salary of from $15 to $80 per week and the plaintiff the same amounts; that the business has been conducted at a profit, the net assets at the time of the hearing being about $6,000; that no dividends have been declared or paid; that Walker had paid in $3,000 in cash on his stock and $100 for the Marsteller stock; that plaintiff gave the whole or a part of his time to the business until June, 1918, since which time he has been employed elsewhere.

The trial court dismissed the bill and plaintiff has appealed. His counsel claim:

That the exclusion of plaintiff as a minority stockholder is ground for a dissolution of the corporation. A sufficient answer to this claim is that there is no proof that plaintiff was ever in any way excluded from participating as an officer or stockholder in the conduct of the business of the corporation.

It is urged that the defendant corporation was never incorporated and that the effort to effect such was a “mere sham to defraud Battige.” The bill alleges the incorporation. The plaintiff signed the annual report of the corporation for the year 1918. He cannot now insist on this claim. Besides, we find no evidence to support it.

3. It is finally insisted that “Walker’s, usurpations entitle plaintiff to distribution of assets.” There is no evidence whatever to show that Walker usurped any authority or that there ever was any disagreement between himself and plaintiff in regard to the amount of the business. The many cases cited by plaintiff’s counsel in his brief, in our opinion, have no application to the case as made by the pleadings and proofs.

The decree dismissing the bill of complaint is affirmed, with costs to the defendants.

Steere', C. J., and Moore, Fellows, Stone, Bird, and Sharpe, JJ., concurred.

The late Justice BROOKE took no part in this decision.


text:
    KEYSTONE COAL & COKE CO. v. FORREST.
    1. Trial — Instructions — Contracts — Acceptance — Appeal and Error.
    In an action for a balance due for coke furnished under two written contracts, where defendant accepted all the coke shipped to him, although he complained that part of it was inferior, 7¡,eld, that he could not complain because the question as to whether he was entitled to an allowance for loss by reason of said claimed inferiority was submitted to the jury.
    2. Same — Contracts—Breach.
    Where the contracts provided for the shipment of a certain number of tons of coke a month, and provided further that failure to accept the agreed amount, during the warmer months gave plaintiff the right to deduct any such shortage from the amount to be furnished during the colder months, and there was evidence that defendant requested that instead of the amounts provided in the contracts, coke be shipped only on his order, and all his orders were filled, his contention that plaintiff wgs conclusively shown to have breached the contract cannot be sustained.
    3. Same — Instructions—Contracts—Construction.
    Where the contracts were introduced in evidence, were unambiguous and required no construction, and there was also a large number of letters and telegrams introduced which were properly for the consideration of the jury, the charge of the court that the exhibits were all for the consideration of the jury, held, not objectionable as submitting to the jury' the construction of the contracts.
    4. Same — Issues Submitted.

      Held, that the charge as a whole fairly submitted the issues to the jury.
    Error to Genesee; Brennan (Fred W.), J.
    Submitted October 8, 1920.
    (Docket No. 69.)
    Decided February 3, 1921.
    Assumpsit by the Keystone Coal & Coke Company against George Forrest for goods sold and delivered. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Carton, Roberts & Stewart and Charles A. Withey, for appellant.

      Van Benschoten & Millard, for appellee.
   Clark, J.

The plaintiff is a corporation of Pittsburgh, Pennsylvania, engaged in mining coal and marketing coal and coke. The defendant is a retail dealer in coke at the city of Flint. On February 4, 1915, they entered into the following contract:

“Keystone Coal & Coke Company, Park Building, Pittsburgh, Pa. No. D-6568. Contract. Pittsburgh, Pa., February 4, 1914 (1915). The Keystone Coal & Coke Company, of Pittsburgh, Pa., agrees to sell and George Forrest, of Flint, Michigan, agrees to buy: Material — Connellsville egg, stove and chestnut sized crushed coke. Quantity — Five thousand tons. Period — April 1, 1915, to April 1, 1916. Price — Egg size, $2.15 per net ton, F. Q. B. ovens; chestnut size, $2 per net ton, F. O. B. ovens. Terms — Net cash settlements in full upon arrival of cars. Shipping directions — George Forrest, Flint, Michigan. Route— Toledo, Ohio, Grand Trunk delivery.
“Note — Two thousand five hundred tons of coke to be delivered in equal monthly quantities during the months of April, May, June and July, August and September, 1915, and two thousand five hundred tons to be delivered in equal quantities during October, November and December, 1915, and January, February and March, 1916. It is further agreed that should the buyer fail to accept the said 2,500 tons during the months of April, May, June, July, August and September, 1915, in monthly quantities as above stated, any such shortage may be deducted, at the option of the sellers, from the 2,500 tons required during the months of October, November and December, 1915, and January, and whatever that balance might be, is to be delivered in equally distributed amounts throughout the last half of this contract. It is further agreed that 50 per cent, of this amount is to be stove, 25 per cent, egg and 25 per cent, chestnut size crushed coke. Every effort will be made for the prompt and faithful fulfillment of contract, but seller will not be responsible for the delivery of same, if prevented by strikes or combinations of miners or laborers, accidents in the mines, or interruptions of transportation, or by inability to secure the necessary cars, or from any other cause or occurrence beyond seller’s control. In such cases obligations to deliver under this contract are limited and qualified to such extent as deliveries shall be prevented thereby, and no liability shall be incurred by the seller for damages resulting therefrom. It is understood and. agreed that if there should be a shortage of cars the shipper will endeavor to apportion shipments equitably and uniformly on all orders. Buyers will not be under obligations to receive under this contract providing works are not in operation and due notice thereof is given to seller. Each month’s delivery is to be treated and considered as a separate and independent contract.
(Signed) “George Forrest.
“Accepted:
“Keystone Coal & Coke Co.,
“By (signed)' E. M. Gross, Mgr.”

Because of shortage of cars and other causes beyond its control, as plaintiff claims, coke sufficient to supply defendant’s demands under the contract was not furnished. Late- in 1915, plaintiff suggested to defendant that coke might be obtained from another company, the United Connellsville Coke Company. On November 15, 1915, after some correspondence, a second contract between the parties was made respecting “United” or “United Connellsville” coke. It seems there was an agreement between the plaintiff and the United Connellsville Coke Company that at the plaintiff’s request and to its. order for delivery to defendant coke would be shipped to Flint. Under this second contract plaintiff was to cause to be shipped for the defendant of the United coke four cars per week, two of stove, one of egg and one of chestnut. The contract, like the first, was to expire April 1, 1916. The contract in part:

“Except when otherwise provided for, above, deliveries are to be as nearly as possible in equal proportionate monthly amounts on buyer’s written orders. Any delivery in excess of any monthly pro rata to be at seller’s option. Time and terms of payment are essential hereto, and any default therein, and also any failure of orders during any entire current month, or any proceedings in insolvency or bankruptcy, or for a receiver, against the buyer shall authorize the seller, at its option, to cancel this contract without notice, and such right shall continue and shall not be waived by any failure of seller to exercise its right in any particular case. * * * Seller will make every effort for the prompt and faithful fulfillment of contract, but will not be responsible for delivery hereunder if prevented by strikes or combinations of miners or laborers, accidents in mines or otherwise, fire or flooding, interruptions of transportation, failure of car supply, or from any other cause beyond seller’s control. In such case the obligation of the seller to deliver coke hereunder is limited and qualified to such extent as deliveries shall be prevented thereby, and no liability shall be incurred by the seller for any damages resulting therefrom. It is understood also that in case there should be a shortage of cars at the mines from which the seller proposes to ship this contract, shipments will be apportioned equitably and uniformly on all contracts or orders so far as the same can be accomplished.”

On November 20, 1915, plaintiff, upon receiving the second contract signed by defendant, by letter stated to defendant:

“If the coke is not satisfactory, we will have to know, say, by December 15th, otherwise it will be understood that the coke will be taken.”

Thereafter certain shipments of both Keystone coke under the first contract and United coke under the second contract were made. The defendant, though he complained several times of the quality of a part of the chestnut coke,, accepted all cars shipped to him. He had no yard or sheds, it seems, and delivery to his customers was made by wagons directly from cars, which method of handling the coke resulted in his being obliged to pay for car service.

On April 10, 1915, defendant wrote plaintiff as follows:

“Please do not ship coke until I order; weather keeps warm here. It costs me nearly á dollar a ton to move it.”

which was followed by correspondence, the plaintiff complaining of defendant’s refusal to accept shipments of coke under the contract and defendant insisting that such refusal- was unavoidable.

About May 10th, defendant ordered one car of egg coke, on May 20th, one car of stove, and on May 28th, one car of egg. These were shipped by plaintiff. On June 4th, plaintiff requested defendant to accept a car or two of chestnut. This he refused. Thereafter the defendant from time to time during the term ordered coke, of which a witness for plaintiff testified:

“Q. Mr. Syroth, did you fill all the orders given your company by Mr. Forrest?
“A. Yes, sir; every order sent us was filled the size and quantity and every order was met, and we sent no coke to him except as we had written advice to do so.
“Q. Do you say that both the contracts of February 4, 1915, and November 15, 1915, were filled?
“A. Yes, sir. They were filled because we shipped the amount of coke Mr. Forrest ordered.” * * *

Defendant in January, 1916, complained that he was receiving too large a proportion of chestnut coke, and he complained several times of delays in arrival of cars. A few days before the date of the expiration of the contracts, April 1, 1916, plaintiff wrote to defend-. ant suggesting that the contracts were about to expire and that coke was commanding higher prices and inquiring as to further dealings. To this point the relar tions of the parties seem to have been friendly,. and marked by mutual concessions and recognition of the difficulties attending manufacture, transportation and sale of the product. Defendant replied that he had 45 cars due him according .to contract. This was followed by correspondence, the plaintiff claiming that coke had been shipped as ordered by defendant, and that it had fully met the requirements of the contracts, and asked that the balance due it, $1,259.37, be paid. Defendant on May 5, 1916, sent remittance of $648.51, and a claim for credit of $10.86 and said as to the balanee: “leaving balance of $600 due you” and “you will get your $600 soon.” Later, the amount not being paid, plaintiff brought suit to recover the balance of $610.86. Defendant pleaded the general issue with notice of counterclaim:

“To the amount of egg and stove coke short on delivery on the contract of plaintiff, dated February 4, 1915, based on the percentage of chestnut size received under that contract:
Stove size coke short, 741-7/20 tons at $1.87% per ton ....................................$1,390.03
Egg size coke short, 466-9/10 tons at $1.87% per ton .................................... 875.44
Chestnut size coke short, 516-7/10 tons at $1.87% per ton .................................... 968.81
To loss on inferior quality of coke shipped under second contract, 1,594 tons at $1.50...... 2,391.00
To shortage on car of coke, No. 87,494........ 10.86
$5,636.14
To interest on the above amount at 5 per cent, per annum from date of failure to supply until this date .................................. 868.90
$6,505.04”

The trial resulted in a verdict for plaintiff for the full amount of its claim. Defendant here has numerous assignments of error.

Overruling defendant’s motion for a new trial. Defendant contends that upon undisputed evidence he was entitled to a verdict for the amount of claimed loss on inferior quality of coke shipped, $2,391 less the amount of plaintiff’s claim and interest, $690, or the sum of $1,701, and that the court therefore erred in the denial of the motion. Defendant accepted all this coke. He complained of part of it but said, “we will try and get along with it.” After all the coke had been delivered and accepted defendant paid a part of the account of plaintiff and promised to pay the balance. The court permitted the jury to say whether or not defendant might recover on this part of his claim, and, from a reading of all of the evidence, we think the defendant on this point may not complain. A new trial was also asked on the ground that the verdict was against the great weight of the evidence and, seemingly under this assignment, counsel argue that a breach of the contract by the plaintiff respecting the furnishing of coke was conclusively shown. There was evidence that defendant requested that coke be shipped only on his order and that all his orders were filled. Following the contracts there was correspondence indicating an understanding that coke shipped under the second contract might be applied on the first. The first contract provided that a failure to accept the agreed amount of coke during the warmer months gave the plaintiff the right to deduct any such shortage from the amount to be furnished during the colder months. There Was evidence that defendant did not accept during the warmer months the amount of coke he agreed to accept, and there was some evidence supporting a further claim of plaintiff that under the saving clause of the contract it was prevented from supplying coke by circumstances beyond its control. All this evidence, disputed in part, made, at least, a question of fact for the jury, and its verdict is well sustained by the record.

The following excerpt from the charge is said to be erroneous:

“There have been a great many exhibits introduced here _and _ they include Exhibits 1 and 2, or 1-A and 2, I think it is called, which constitute the contracts. They are all for your consideration, gentlemen, and it is for you to sift out from this multitude of correspondence and documentary evidence the rights of these parties.”

The contracts, Exhibits 1 and 2, were not ambiguous, were not claimed to be, and required no construction. The court, therefore, could not have intended, though counsel contend otherwise, to have submitted to the jury the construction of the contracts, which, if necessary, would have been for the court, not the jury. See Wenzel v. Kieruj, 168 Mich. 92; Tompkins v. Gardner & Spry Co., 69 Mich. 58. But in addition to the contracts there were 136 exhibits, principally letters and telegrams of the parties. These were important to a consideration of the issues of fact, heretofore mentioned, raised by the parties, and were for the jury. We do not think that the jury was misled by the language quoted.

Many other errors are claimed, largely in the charge. All have been considered. By the charge taken as a whole the issues of -fact were fairly submitted to the jury. We think the verdict is just. We find no reversible error.

The judgment is affirmed.

Steere, C. J., and'Moore, Fellows, Stone, Bird, and Sharpe, JJ., concurred.

The late Justice Brooke took no part in this decision.


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    PEOPLE v. CLINE.
    New Trial — Great Weight op Evidence — Newly-Discovered Evidence — Criminal Law.
    Defendant’s motion for a new trial because his conviction of the offense of taking indecent liberties with the person of a female child was against the great weight of the evidence, and because of newly-discovered evidence, held, properly denied.

      Exceptions before judgment from superior court of Grand Rapids; Brown (William B.), J., presiding.
    Submitted December 15, 1920.
    (Docket No. 120.)
    Decided February 3, 1921.
    Christopher Cline was convicted of taking indecent liberties with the person of a female child.
    Affirmed.

      H. Monroe Dunham, for appellant.

      Cornelius Hoffius, Prosecuting Attorney (Fred P. Geib, of counsel), for the people.
   Clark, J.

There were two counts in the information, the first charging statutory rape, the second the taking of indecent and improper liberties with the person of a female child without committing or intending to commit the crime of rape. Sections 15503, 15504, 3 Comp. Laws 1915. The child was 10 years of age, the defendant 30. The conviction was under the second count. It is urged that the court erred in denying defendant’s motion for a new trial because the verdict was against the great weight of the evidence and because of newly-discovered evidence. To discuss either of the questions the evidence must be reviewed. But no good will come of that. The offense, unfortunate to all concerned, is most revolting in its details. The case is well briefed and we have given it careful consideration. We think the motion was properly denied.

The conviction is affirmed.

Steere, C. J., and Moore, Fellows, Stone, Bird, and Sharpe, JJ., concurred.

The late Justice Brooke took no part in this decision.


text:
    ENGELMAN v. ENGELMAN.
    1. Divorce — Modification of Decree eor Alimony — Statutes.
    Under 3 Comp. Laws 1915, § 11417, the court may, after a decree for alimony or other allowance for the wife or children, on petition of either of the parties, revise and alter such decree respecting the amount of such alimony or allowance.
    2. Same — Evidence—Sufficiency.
    A showing that the health of plaintiff has failed, that the health of some of the minor children, who are in plaintiff's custody, has also failed, and that plaintiff’s financial condition is much worse than at the time of granting the decree of divorce, whereas defendant’s financial condition has much improved since that time, he having inherited property of the value of $8,000, bringing him a monthly rental of $74, and having received an increase of $10 a month in salary, held, to- justify a modification of the decree, allowing a sale of the homestead for plaintiff’s benefit, increasing her allowance from $22.50 to $35 a month, and increasing the allowance of one of the children from $7.50 to $10 a month.
    Appeal from Wayne; Dingeman (Harry J.), J.
    Submitted January 6, 1921.
    (Docket No. 76.)
    Decided February 3, 1921.
    Bill by Mary F. Engelman against George C. Engelman for a divorce: On petition of plaintiff for a modification of the decree respecting alimony. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Lodge & Brown, for plaintiff.

      James H. Pound, for defendant.
   Stone, J.

This case is here upon appeal by the defendant from an order of the circuit court for the county of Wayne, in chancery, dated June 5, 1919, granting the petition of plaintiff for a modification of a decree for the payment of alimony. On February 11, 1914, the plaintiff obtained a decree of absolute divorce from the defendant upon the ground of extreme cruelty. The record shows that there are 7 children of the parties, 4 of whom were minors at the time of the granting of the original decree. By the terms of the original decree the plaintiff was awarded the custody and control of the three youngest children, to wit, Francis, Marion, and Gertrude, until the further order of the court. It was also thereby ordered that the defendant pay, or cause to be paid, to the plaintiff as and for the maintenance, support and education of each of the said 3 minor children the sum of $7.50 per month, or a total of $22.50 per month, in advance, on the first day of each month thereafter, so long as they should respectively remain in her custody or were dependent upon her, and until the further order of the court. The defendant was given the right to visit, take and entertain said children at reasonable times and places, and to have the custody of the boy, Francis, during the months of July and August of each year, until the further order of the court. As permanent alimony and in lieu of all dower, homestead and other property rights which the plaintiff might have against the defendant, or in his property both real and personal, she was awarded and defendant was ordered, adjudged and decreed to deliver, turn over and pay to plaintiff the same as follows:

(a.) The absolute title to an undivided two-fifths interest in the fee of the homestead of the parties thereto, then occupied by the plaintiff, which premises were known as 1297 Helen avenue, in the city of Detroit, and were particularly described in the decree.

(6) The exclusive right to the use and occupation of the remaining three-fifths interest of said premises, terminable upon plaintiffs death, remarriage, or by valid agreement of the parties.

(c) The exclusive use until the further order of the court of all the household furniture in the homestead, except in the personal paraphernalia and wearing apparel of defendant.

(d) It was ordered that the legal title to the said furniture so used by plaintiff should vest equally in the parties, subject to the aforesaid right of occupancy by plaintiff, the survivor to take the whole.

(e) The defendant was ordered to pay to plaintiff $22.50 monthly in advance on the first day of each month thereafter so long as plaintiff remained unmarried.

(/) The taxes and all other charges against the aforesaid homestead premises accruing prior to December 15, 1913, the defendant was ordered and decreed to pay, or cause to be paid, within the space of two months, and that plaintiff should pay all of said charges thereafter.

(g) The defendant was to pay the sum of $200 as, and for, the cost of renewing the roof upon said homestead premises, said sum to be payable one-half in 30 days and one-half in 60 days. The defendant was ordered to execute and deliver to plaintiff proper deeds and other instruments conveying to her title to the property and interests awarded to her, and that in default thereof the decree should stand as such instrument. Plaintiff was to have a lien upon defendant’s interest in the aforesaid homestead premises to secure to her the performance by him of each and every part of the decree.

In June, 1918, plaintiff filed a petition for the modification of this decree, setting forth certain changes both in her own condition and that of her children; also that defendant had inherited property since the date of the final decree of the value of from $8,000 to $10,000. To be more specific, it should be stated that the petition represented that the homestead premises consists of a lot 35 feet wide by 104 feet long upon which there is a frame dwelling of one and one-half stories, which was then about 30 years old and was in a state of extreme dilapidation and lack of repair, although it was alleged that petitioner had herself spent all of the money she could possibly spare in keeping the same in repair, besides herself doing a great deal of personal work upon the house in the way of painting, papering, etc. It was further alleged that the premises were constantly becoming moré dilapidated and expensive to maintain, and furnishing less and less of the protection to petitioner which said decree intended her to have.

As to the condition of the children the following appears in the petition:

“(3) While the children mentioned in said decree belonging to the parties were not in strong or robust health at the time said decree was rendered, the physical and mental condition of certain of them has steadily grown worse since the custody of same was awarded your petitioner.
“As your petitioner is informed, and believes, certain hereditary constitutional tendencies, for which your petitioner is not to blame, have caused said children to be afflicted in various ways. Since the rendition of said decree one of the children of the parties hereto has been adjudged insane, and is now confined in the Michigan State hospital at Pontiac, Michigan. The ill-health and crippled condition of Francis,' another of the children of the parties, has continued, although he is now able to earn a certain amount of wages. Marion, another of said children, has for some time last past been insane and physically ill as well. In the effort to keep her physically well, and preserve her reason, your petitioner has been compelled to incur large and unexpected expense for physicians and medical attendance and medicines, and has been compelled to devote much of her own time and nervous force to her care. And your petitioner has been informed by the physician in attendance upon said daughter, that while they hope for her restoration, nevertheless her illness will probably be long, tedious and expensive.
“ (4) Since said decree was signed and filed, the cost of living has very nearly trebled, and it is now impossible for your petitioner, even with such help as has been heretofore given her by her sons, Verne and Francis, to longer maintain herself and said children comfortably unless the relief herein prayed for is awarded her.
“(5) Her son, Verne Engelman, has recently been drafted, and has been examined and accepted for membership in the United States army, and is liable at any time to be ordered from home, and thereby your petitioner will be entirely deprived of his contributions.
“(6) The nervous and physical force and strength of your petitioner is gradually wearing out under the continued strain of the illness of their children herein-before referred to, and unless some relief is afforded her she has been warned by her physician that her health will be broken down entirely, and said children will lose her care.
“(7) Since the rendition of said decree, defendant, by the death of his mother, has come into possession of a large amount of property, which your petitioner is informed and believes, aggregates ten thousand dollars ($10,000) and is in better position to care for his said children than he was at the time said decree was rendered.
“(8) It would be for the best interest of all concerned if said homestead should be sold, and the proceeds applied under the direction of this honorable court for the support and maintenance of your petitioner and the minor children of the parties hereto.
“Therefore, your petitioner prays that the decree heretofore made and entered in the above entitled cause be modified in the following particulars:
“(a.) To provide for the sale of said homestead, and the proper application of the proceeds thereof be to increase the amount of monthly alimony to be paid said petitioner, in accordance with the change in existing conditions.”

To this petition answer was filed. Modification of the decree was opposed by defendant. After an extended hearing upon testimony in open court the decree was modified, the court finding that since the rendition of the decree the defendant had acquired certain property by inheritance worth $8,000 or thereabouts, from which he was deriving at the time of the hearing $74 per month. That the condition or ill-health of Marion and Gertrude has been greatly aggravated since the rendition of said decree, and that neither the aforesaid property nor said aggravation of ill-health on the part of Marion and Gertrude was in the contemplation of the court when the original decree was entered. That the value of the homestead mentioned in said decree was $4,000 or thereabouts. That the increased cost of living and the changed condition of plaintiff and their daughter, Gertrude, requires that the monthly allowance to plaintiff be $35 per month, and that of the daughter, Gertrude, to be increased from $7.50 to $10 per month. The order concludes as follows:

“That the decree heretofore entered herein be increased so that the allowance to plaintiff for her permanent alimony be increased to $35 per month; and that for the daughter of the parties, Gertrude Engelman, be increased to $10 per month, until she shall have reached the age of fourteen years, or until the further order of the court. That the homestead at 1297 Helen avenue be sold under the direction of this court, or by plaintiff by private sale, subject to confirmation by this court, and that the proceeds thereof be invested under the direction of this court, either in a new home for plaintiff and her children, to be held and operated by her the same as the present premises, 1297 Helen avenue, are now operated, or that the proceeds thereof be. invested under the direction of this court and income thereof devoted to the support of plaintiff and said children.”

The testimony taken upon the hearing upon the petition was very lengthy and covers more than 130 pages of the printed record. Much of it was, in our judgment, irrelevant and not pertinent to the question before us, as it related to acrimonious charges of defendant against plaintiff, and the claimed refusal of the plaintiff to permit the defendant to see or visit the children mentioned in the decree, although defendant had made no complaint or application to the court in that regard. The testimony, however, showed an exceptional and most distressing condition as to the health and circumstances of the plaintiff and the minor children. The testimony also showed that one of the older boys, Lindel, has been adjudged insane and is now confined in the Michigan State hospital at Pontiac. This testimony, as well as the testimony relative to the oldest son, Verne, having been drafted into the military service, does not appear to be very pertinent to the issue here. The testimony, however, shows very clearly the failing condition of the health of the plaintiff since the date of the decree, owing to her increased labor in the care and maintenance of the home and the support of the three youngest children, all of whom are in' a most deplorable condition. The boy Francis has a crippled arm which interferes seriously with his ability to labor, although the record shows that he has been able to assist the mother in a small degree, the extent of which does not appear. Marion is an epileptic, is insane at times, and her condition has grown gradually worse since the decree. She has since undergone an operation, consisting of the removal of her ovaries, and she is now in St. Joseph’s retreat at Dearborn, Michigan, and seems to have been taken there in the fall of 1918. The petitioner is assisting in her support there, paying $20 a month — besides her clothes. The child Gertrude is also a cripple, having been crippled from birth in the arm and shoulder, and she is weak and sickly and lias been ailing for the last year.

It may be pertinent to also state in this connection that the salary of the defendant has been increased $10 per month since the date of the decree. From his own testimony it appears that he is receiving $74 a month for the rental of the three houses described by him, which he inherited from his mother; which with the increase of his salary shows that his annual income has been increased about $1,000 since the date of the decree, although it also appears that he has expended in the repair of the inherited houses from $1,800 to $2,000.

It seems to us that it is not material or proper to consider the circumstances or condition of the older children of this family, nor to inquire as to their duty respectively to aid in the support of the mother or younger children. The pertinent and meritorious question is: "Has the petitioner’s financial condition changed since the date of the decree to such an extent as to justify the court in modifying that decree?” A careful reading of the evidence satisfies us that there has been such a change in the condition of the petitioner and the two girls (the youngest children) as' to warrant and justify the court in modifying the decree. The statute (section 11417, 3 Comp. Laws 1915) provides that after a decree for alimony or other allowance .for the wife and children, or either of them, the court may, from time to time, on the petition of either of the parties revise and alter such decree respecting the amount of such alimony or allowance and the payment thereof, and may make any decree respecting any of the said matters which such court might have made in the original suit. Jurisdiction of the court to revise is affirmed in many of our decisions, some of which will be found cited in the note to the section above quoted. See, also, Skinner v. Skinner, 205 Mich. 243.

That the plaintiff is, financially, in a much worse condition than she was when the decree' was granted, by reason of failing health on her part, of the increased expense attending the late illness of the girls, of the increasing dilapidation of the homestead and cost of keeping it in repair, and the increased taxes and cost of living, cannot be questioned, we think, in the light of this record. While the plaintiff’s condition has been growing worse from year to year, the financial condition of the defendant has materially improved, and his income increased. We believe the sale of the homestead, as ordered by the court below, and the investment of the proceeds as therein directed is a wise measure. The increase of amount to be paid plaintiff is $15 per month, aggregating $60 per month. It is difficult to see how, with her own efforts, she will be able to live and care for the younger children upon any less sum.

The decree and order of the court below will stand affirmed, with the costs of this court to the plaintiff to be taxed.

Steere, C. J., and Moo-re, Fellows, Clark, Bird, and Sharpe, JJ., concurred.

The late Justice BROOKE took no part in this decision.