text:
    PEOPLE v. BIRD.
    False Pretenses — Conspiracy — Complaint — Sufficiency — De fenses — Verdict. '

      1. Where a complaint alleges a conspiracy to obtain money under false pretenses; that, in pursuance thereof, the respondents obtained the money by false pretenses; and an examination was had before the justice, detailing the transaction, — held, that a count charging false pretenses is valid.
    2. In a complaint or information for conspiracy, it is not necessary to set forth the means resorted to.
    3. A general verdict will be sustained if there is one good count in the information.
    4. The criminal statute in regard to false pretenses is designed for the protection of the weak and ignorant and those whose minds are unbalanced. In such case it is no defense that the false representations were absurd and irrational.
    5. Whether the respondents were honest in their peculiar religious teachings, by which they obtained money, is a question for the jury.
    Error to Lenawee; Chester, J.
    Submitted February-14, 1901.
    Decided May 21, 1901.
    Theodore Bird, Theodore Williams, Jay Lawrence, and Charles Ray were convicted under an information charging conspiracy to defraud and false pretenses.
    Affirmed.
    The respondents were arrested under a complaint and warrant charging them with a fraudulent conspiracy to obtain from one Thomas J. Curtis, by divers false pretenses, subtle means and devices, $300, and that by said false pretenses, etc., the respondents obtained from said Curtis $300. The complaint is a general one, and does not set forth the specific means by which the conspiracy was carried out. The first count in the information is general, like the complaint. The second count is one for false pretenses, and sets forth the specific methods resorted to by the respondents to accomplish their object. The methods, in substance, were that the respondents represented to said Curtis that they were the apostles of Christ; that said Curtis and they were to be the judges of the people in that part of the country; that the son of Curtis was to be Christ in his second coming; that they (respondents) were sent by the Lord to tell Curtis these things; and that the Lord required of him to pay to them $300, to make a home for them. The respondents were convicted.

      Lehmann Bros, and F. J. Biggs, for appellants.

      J. N. Sampson, Prosecuting Attorney, for the people.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). The first point raised is that respondents had no examination upon the offense with which they are charged in the second count. The principal objection is that the complaint alleges a conspiracy, and not the crime of obtaining money under false pretenses. The printed record is very imperfect. It does not show any plea or return of the justice. But the return to the writ of error shows that the respondents stood mute when arraigned, and that an examination was had before the justice. The complaint and first count of the information are good. They contain all that is necessary in charging a conspiracy. People v. Clark, 10 Mich. 310. The complaint alleges a conspiracy to obtain money by false pretenses, and that “in pursuance of and according to said combination, conspiracy,” etc., “by said divers false pretenses,” etc., the respondents “did fraudulently obtain and acquire of and from said Curtis the moneys,” etc. The testimony taken upon the examination shows the false pretenses and means resorted to. We think the complaint and the evidence elicited upon the examination sufficient upon which to base a count for false pretenses. Both counts are based upon the same transaction. People v. Annis, 13 Mich. 511; People v. Summers, 115 Mich. 537 (73 N. W. 818); People v. Pichette, 111 Mich. 463 (69 N. W. 739). Aside from this, the verdict was a general one, and one good count is sufficient to support it. Shannon v. People, 5 Mich. 71 ; People v. McKinney, 10 Mich. 54, 89.

It is urged that the pretenses were so absurd and irrational that they do not come within the statute. This question has been adjudicated against the contention of the respondents in People v. Summers, 115 Mich. 537 (73 N. W. 818), where many authorities upon the point are cited. Mr. Curtis, from whom the respondents obtained • the money, was evidently an ignorant and weak man. It appears from his own testimony and from other evidence that his mind is unbalanced upon the subject of religion. The statute is designed for the protection of such, and for the punishment of those who will take advantage of their weaknesses to perpetrate fraud.

It is next urged that, though the respondents held peculiar views, yet that they were honest in their belief. We agree with counsel that their views were peculiar. Whether they were honest in them was a question for the-jury. The court, in very clear language, instructed the jury that, if they were honest in their religious belief, ru> matter how misguided they might be, they could not be convicted. The evidence is that Bird and Williams were very active in preaching their doctrines to Mr. Curtis, that it was his duty to give them money, and that the Lord had so directed. We think, also, that there was evidence from which the jury might reasonably infer that respondents Lawrence and Ray were parties to the fraud, although they did not make direct representations to obtain the money.

We find no error in the record, and the conviction is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, C. J.

license: Public Domain

text:
    CRAWFORD v. ROSS.
    Municipal Corporations — Title to Lands — Adverse Possession-Constitutional Law.
    Section 129 of the charter of Ann Arbor (Act No. 331, Local Acts 1889 ), providing that no person shall be deemed to have gained any title, as against the city, by lapse of time, to any street, lane, alley, common, or public square theretofore laid out or platted, or to any part thereof, by reason of any en. croachment on or inclosure of the same, is within the object expressed in the title to the act (viz., “An act to reincorpórate the city of Ann Arbor, revise the charter of said city, and repeal all conflicting acts relating thereto”), and is valid legislation, operating to preclude the acquiring of title to the lands therein mentioned, as against the city, by adverse possession.

      Error to Washtenaw; Kinne, J.
    Submitted February 15, 1901.
    Decided May 21, 1901.
    Trespass quare clausum fregit by Kate L. Crawford against Daniel Ross. From a judgment for plaintiff, defendant brings error.
    Reversed.
    The court instructed the jury, among other things, that if they should find that the fence along the street in question had stood and been maintained at the point and on the line where it stood at the date of the alleged trespass for the full period of 15 years nest before the trespass, that the plaintiff and her predecessors in ownership had occupied the land up to the fence during such period, and that such possession on her part had been adverse, continuous, open, and hostile, then the plaintiff had established her title to the land up to the fence by adverse possession.

      E. B. Norris, for appellant.

      Frank E. Jones, for appellee.
   Montgomery, C. J.

The defendant is street commissioner of the city of Ann Arbor, and as such entered upon the locus in quo with the purpose of improving it, claiming it to be a part of one of the streets of the city. The land in controversy is a strip seven feet in width, which had been fenced in by the plaintiff. The defendant, acting as street commissioner, removed this fence and entered upon the work of filling in and grading the ground. The plaintiff then instituted this action of trespass quare clausum..

It was claimed on the part of defendant (and there was testimony tending to support this claim) that the true line of the street, as laid out, passed seven feet east of the fence which plaintiff had erected. Plaintiff claimed that the statute of limitations had run against the city. The charter of the city of Ann Arbor contains a provision as follows:

“No person shall he deemed to have gained any title, as against the city, by lapse of time, to any street, lane, alley, common, or public square heretofore laid out or platted by the proprietors of said city, or any part thereof, by reason of encroachment or inclosure of the same.” Act No. 331, Local Acts 1889, § 129.

This provision, in substance, was enacted before the last amendment to the statute of limitations, and has been re-enacted at least three times since the general statute was last amended.

We are not advised as to the grounds upon which the learned circuit judge treated this charter provision as inoperative, nor are we referred by counsel to any authority which sustains the instruction given. It is true, reference is made to the constitutional provision that private property shall not be taken for public use without due compensation, and to the fourteenth amendment of the United States Constitution, that no State shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. But we are not able to see the pertinency of these references. The legislative intent is clear enough, and the subject of the regulation of streets and of the property in streets is not foreign to the general purposes of a city charter. This act does not purport to take from the owner of private property property which vests in him. It, in effect, simply declares that property of the city shall not be acquired without compensation; that is to say, that owners of adjacent property may not, by fencing in a portion of the street, deprive the city of its ownership. The converse of this proposition has been before the court in at least two cases. In Springer v. City of Detroit, 118 Mich. 69 (76 N. W. 122), a special statute of limitations, limiting actions against the city, was treated as valid. Such a provision was held to be within the general title of an act to amend an act entitled “An act to provide a charter,” etc. City of Detroit v. Wayne Circuit Judge, 112 Mich. 317 (70 N. W. 894). See, also, Benackowsky v. Board of Water Com’rs, 122 Mich. 613 (81 N. W. 581). We think it was competent for the legislature to provide in this charter that the title of the city to its public streets should not be devested by encroachments, and that the instruction of the learned circuit judge was erroneous.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


text:
    PEOPLE v. ASCHER.
    1. Homicide — Motive—Evidence.
    On a trial for murder, it appeared that respondent had assumed to be a spiritualistic medium, and had induced deceased to make and wear a certain helt, containing gold coins, for the purpose of “developing power as a medium,” and that deceased, when found, was without such belt and coins, and his clothing was in a condition indicating that the belt had been torn from his body. Held, that it was competent for the people to show that respondent was dishonest in his dealings with deceased, and intended to obtain his money by false pretenses; and to that end evidence that respondent had assumed to be a medium on former occasions, and had induced others to wear such belts and gold coins, and had once substituted nickels for the gold by sleight of hand, was admissible.
    3. Same — Distinct Offenses.
    Respondent on a trial for‘murder testified that he had been arrested on a previous occasion for another murder, but had been discharged on the examination. Held, that it was error to permit the prosecution, on rebuttal, to go into the details of the alleged offense, and to urge that respondent was guilty of murder on that occasion.
    3. Criminal Law — Trial—Conduct of Counsel.
    While intemperate argument by the prosecutor in a criminal case may frequently be attributed to the improper conduct of respondent’s counsel, it is always better to rely on the trial court to correct any abuse of privilege by counsel than to attempt to retort in kind.

      Error to recorder’s court of Detroit; Murphy, J.
    Submitted February 15, 1901.
    Decided May 21, 1901.
    Edward Ascher was convicted of murder in the first degree, and sentenced to imprisonment for life in the State prison at Jackson.
    Reversed.

      George F. Monaghan, for appellant.

      Allan H. Frazer, Prosecuting Attorney, for the people.
   Montgomery, C. J.

The respondent was convicted of murder in the first degree. The facts upon which the prosecution was based, as claimed by the prosecution, were as follows: Valmore C. Nichols was a farmer, aged 49 years, residing on a farm near Ypsilanti, in Washtenaw county, this State. At the time of his murder his family there consisted of his wife and grown-up daughter. He became interested in the subject of spiritualism, and in 1898 undertook to make an investigation into its teachings. To that end, in the month of February he came to Detroit to talk with an alleged medium named Donovan, located at 124 Lafayette avenue, corner of First street. Mr. Nichols did not see Donovan, but fell in conversation at the place above named with a man who called himself Robert Lang, and who claimed to be a medium. Their conversation led to relations between them which went on from that time, periodically, until Valmore C. Nichols was murdered, on the evening of the 10th day of August, 1898, his person robbed, and his body thrown into Detroit river. The first that was known of his death was on the 18th day of August, 1898, when some boatmen, rowing about for pleasure in the vicinity of the Detroit Boat Club House, in the American channel, at Belle Isle, discovered a body 200 yards from shore, and 300 yards above the Detroit Boat Club House. The water at this point was not very deep. The people who discovered the body called for assistance and got the body ashore, when it appeared that the body was fully •dressed, and attached to the feet were two large stones, bound around with copper wire, and the rest of the copper wire was wound around the legs of the deceased. The top button of the coat was buttoned, his vest and pants were open, and his shirt was pulled up. There was no money on his person, but his gold watch and chain were there, and a pair of eyeglasses, some other personal effects, and two ticket stubs, good for the .return trip from Belle Isle to Detroit for the date stamped on them, which date was the 10th day of August, 1898. Nichols never told his wife of the gold belt, but she felt the money in it, and Ascher said he never told any one about the gold in Nichols’ belt. There was a mark on the head, where he had been struck with some blunt instrument; and an •examination of the contents of the stomach by Dr. Samuel P. Duffield, of Dearborn, an expert chemist, revealed the fact, as he testified, that he had received a dose of arsenic, although upon this point the testimony was in conflict.

Alice Nichols, wife of the deceased, testified that she saw him alive last on the 10th day of August, 1898, at about 10 o’clock in the morning, taking an electric car from Ypsilanti to Detroit. He never talked with her about his spiritualistic investigations, and with his family and friends and business acquaintancés he was very secretive. From the fact that his clothes were open in front, and the shirt drawn up, and the condition in which his clothes were found after his death, it was claimed that the person who murdered him had done so to get possession of a cotton belt that he wore, into which were sewed 20 $20 gold pieces, — in all, $400 in gold, — which he wore about his person. It appeared that he was in the habit of coming periodically to Detroit and holding seances with the defendant, Edward Ascher, but who was known to Mr. Nichols by the name of Robert Lang, and who corresponded with Mr. Nichols under that name; that he commenced writing to him in May, 1898; that on June 10,1898, Nichols received from Robert Lang a pair of 5-cent slates through the express office, and for which Nichols paid Lang $10, as they were magnetized, according to Lang, and were part and parcel of the necessary equipment for Nichols to have, to be properly developed as a medium; and a letter which Lang sent to Nichols instructed him to use the slates Monday, Wednesday, and Saturday evenings for sittings, and to wear the gold belt all the time, and not to take it off, but to sew it in, and not pin it, but to wear it next to him.

On the 17th day-of July, Lang wrote Nichols another letter, in which he told Nichols that he (Lang) felt that the gold was not strong enough, but that another medium, could not do him any more good than he was doing. On the 25th day of June, Nichols made for himself a belt of muslin, which Mrs. Nichols swore that Mr. Nichols wore, and in which she felt money the size of 50-cent pieces. Afterwards, on the 3d day of August, a week before he was killed, he made a second belt, which he put on instead of the other, and that he had sewed on. On that same day (the 3d day of August) Mr. Nichols went to the Ypsilanti Savings Bank, where he did some business, and deposited $423.30, and got the bank to give him back in gold $420. Previously he had got from the bank on the 25th day of June $220 in gold, but returned it in gold on July 14th. This belt was on him when he left home at 10 o’clock on the morning of August 10, 1898. He took with him on that occasion a bunch of letters which Mrs. Nichols had seen in his writing desk, which letters were signed, “Robert Lang,” and which Mr. Nichols had received in the due course of mail from Robert Lang. He brought those letters to Detroit on the 10th day of August, under instructions from the defendant.

After Mr. Nichols came to Detroit on the 10th day of August, he was at the house 124 Lafayette avenue, and was there until nearly 3 o’clock, in the presence and company of the defendant. He was next seen at the public boat house on Belle Isle at 7:45 o’clock in the evening. He at that hour receipted for boat No. 6, and paid for it 10 cents. He was then in the company of another person. There was testimony tending to identify that person as the defendant, Edward Ascher. The boat went away with the two persons in it. The records of the boat house show that boat No. 6 came back at 8:50 o’clock with only one man in it, and that the smaller man. The smaller man left the boat about 50 feet away from the office, and, upon the boatman asking him what number it was, the smaller man, who brought the boat back, said it was No. 6, and went away from the boatman, in another direction, and he did not get a good look at the smaller man’s face; but he testified that the smaller man, in size, was about the same as Ascher.

Edwin Hulbert reached the public boat house at 20 minutes to 8, and took notice of Mr. *Valmore C. Nichols and his companion, who were getting the boat ahead of Mr. Hulbert. He identified Mr. Nichols, and described how he was dressed on that occasion. He described the person who accompanied Mr. Nichols as a good deal lighter build; dark-complexioned; wore a brown suit and a derby hat,— and that he had a dark mustache, and he saw them get in the boat, and saw them out on the water, and that, in size, complexion, and general appearance, Ascher resembled Nichols’ companion.. When Ascher was arrested, he wore a blue serge suit of clothes; and Hulbert, upon looking at him at the police station, informed the police that on the night of the murder the man who was with Nichols wore a brown suit. Upon going to Ascher’s grip, it was found that he had a brown suit, and that the blue serge which he had on was purchased by him, under the name of E. Schultz, two days after the murder, August 12th, and that he paid $12 for the same, and the amount of money which he handed in for the suit was $20. Whether it was gold or not, there was no way of determining, after the lapse of time. He also went out to Island Lake, to the encampment, and, when he was arrested, $51 was taken off his person, so that after the murder he seemed to be well supplied with money, although up to that time he had been wearing an old suit of clothes, where the pants were ragged and patched, on August 10th, and claiming that he had $150 before the murder, but borrowed $18 on Sunday before the murder to go to Island Lake. It also appears that this defendant bought arsenic at Cook’s drug-store, on Michigan avenue, two days before the murder of Nichols. The drug clerk testified that, at the time Ascher bought the arsenic, he (Ascher) stated that he wanted it for a friend in Canada. Ascher admitted purchasing the arsenic as testified to by the drug clerk, but stated that he wanted to kill the fleas on a dog with it, but that he did not use it to kill the fleas; that he afterwards thought of another remedy, viz., tobacco. Although the defendant stated that upon Wednesday, the 10th day of August, he had not been on Belle Isle, still Abijah Whittemore, who had known Ascher since he was a boy, testified that he saw him on Belle Isle bridge, coming back from the island towards the city, about 10 or 12 minutes to 9 o’clock in the evening of the 10th of August.

The prosecution, under objection and exception, also introduced testimony tending to show that on two previous occasions the respondent had assumed to be a medium, and had advised his dupes to get a belt and get a considerable quantity of gold and place in it, with a view to developing power as a medium, and that on one occasion, by sleight of hand, he substituted nickels for gold pieces, and retained the gold. One of the important questions presented is whether this testimony is competent. It is contended by the prosecution that anything tending to show that Ascher was dealing dishonestly with Nichols, and attempting to get his money dishonestly, was admissible; that the prosecution could prove that Ascher was attempting to obtain Nichols’ money by false pretenses; and that therefore proof of other false pretenses was admissible.

We have no doubt that respondent’s dealings with Nichols were admissible as part of the res gestee, and to show knowledge that Nichols had the gold in his possession; and it was also competent for the prosecution to show, as bearing on the question of motive, that the accused was engaged in a scheme to defraud and obtain the money of Nichols by false pretenses. The question of fact, therefore, as to whether the accused was endeavoring to obtain this money by false pretenses, was triable as in any other- cause. While the general rule is that proof of another distinct offense may not be given in evidence for the purpose of convincing the jury that it is more probable that the offense charged has been committed, an exception is made when a particular intent is to be proved; and it has been held in many cases that, where a charge of false pretenses is made, proof of similar false pretenses practiced upon others is admissible. People v. Wakely, 62 Mich. 297 (28 N. W. 871); Bielschofsky v. People, 60 N. Y. 616; Cook v. Perry, 43 Mich. 623 (5 N. W. 1054); Stubly v. Beachboard, 68 Mich. 401 (36 N. W. 192). See, also, People v. Seaman, 107 Mich. 348 (65 N. W. 203, 61 Am. St. Rep. 326), and cases cited; Wallace v. State, 41 Fla. 547 (26 South. 713). The testimony should in all, cases be limited in its use to the purpose for which it is admitted.

The respondent, while on the stand as a witness in his own behalf, testified that on a previous occasion he was arrested for the murder of one Mrs. Kotz, and was discharged on examination. On rebuttal the prosecution was permitted to go into all the details of the alleged offense, and to urge before the jury that the accused had been guilty of murder on that occasion. Such testimony does not come within any exception to the general rule, and was inadmissible, and could not have failed to affect the rights of the respondent.

A large portion of the .brief of counsel is taken up by a discussion of error alleged to have been committed in the argument of the prosecuting attorney. We need not consider whether there was error committed in this regard, as it is not likely that the question will again arise in the same form, and as our previous rulings on the subject cannot well be misapprehended. We are not unmindful of the frequent unseemly attempts made by the defending counsel to direct attention from the main issue, and to put the prosecuting attorney and the people’s witnesses on trial in place of the respondent, and it is perhaps not surprising that the prosecutor should at times retort in kind. The better practice, however, is to rely upon the trial court to correct any abuse of privilege by respondent’s counsel.

For the error pointed out, the conviction will be reversed, and a new trial ordered.

The other Justices concurred.


author: Grant, J.

text:
    SECRETARY OF STATE v. NATIONAL SALT CO.
    Mandamus to Foreign Corporation.

      Mandamus will not lie to compel a foreign corporation to perform an act which is a prerequisite to its right to do business in this State. The proper remedy is quo warranto, or the imposition of the penalty for doing business without complying with the law.

      Certiorari to Saginaw; Snow, J.
    Submitted February 15, 1901.
    Decided May 21, 1901.

      Mandamus by Justus S. Stearns, Secretary of State, to-compel the National Salt Company to file its articles of association and a resolution appointing a resident agent. From an order denying the writ, relator brings certiorari.
    Affirmed.

      Horace M. Oren, Attorney General, for relator.

      Benton Hanchett, for respondent.

       Head-note by Grant, J.

   Grant, J.

The respondent is a corporation organized under the laws of New Jersey. It had paid its franchise fee, — $6,000,—as required by section 8574, 3 Comp. Laws 1897. Relator filed his petition in the court below for a writ of mandamus to compel the respondent to file its articles of association, and a resolution designating a resident agent in this State, under section 7072, 2 Comp. Laws 1897. The court below denied the writ.

Mandamus is not the proper remedy. The courts cannot compel parties by mandamus to comply with any of the provisions which the statutes require as conditions precedent to the right to transact business. The respondent may prefer to do no business, if required to comply with the terms which the relator claims the law imposes upon it. If it chooses to do business without compliance with the law, it does it at its risk, and is subject to a suit by quo warranto, or to pay the penalty provided by the law, as was done in Rough v. Breitung, 117 Mich. 48 (75 N. W. 147). If the order should be made, how would this court enforce it ? If by proceedings for contempt, the respondent might show that it had gone out of business. The only proper remedy is by quo warranto, or by an action for violation of the statute, if any penalty is provided.

Judgment affirmed.

The other Justices concurred.


author: Long, J.

text:
    GITCHEL v. WHIPPLE.
    Drains — Amendment oe Statute — Pending Proceedings.
    Act No. 272, Pub. Acts 1899, amendatory of the draiu law, is not applicable to proceedings pending at the time it became operative; the saving clause of said act expressly providing that such proceedings may be carried forward and completed under the pre-existing law. Brady v. Hayward, 114 Mich. 326, distinguished.

      Certiorari to Ottawa; Padgham, J.
    Submitted February 26, 1901.
    Decided May 21, 1901

      Mandamus by George W. Gitcbel to compel William Whipple, Jr., drain commissioner of Ottawa county, to recognize the action of a board of review in enlarging an assessment district. From an order denying the writ* relator brings certiorari.

    Affirmed.

      Wilkes & Hoffman and (J. J. Diekema, for relator.

      Smedley & Corwin, for respondent.
   Long, J.

In April, 1898, application was made to the county drain commissioners of Ottawa and Allegan counties to lay out a drain, called the “Black Creek Drain,” through those counties. No question is made but that the proceedings were regular up to and including the letting of the drain and the making of the assessment of benefits. In October, 1899, the county drain commissioner of Ottawa county (the respondent here) made his assessment of benefits for the township of Jamestown. The relator and other freeholders of said township thereupon made application to the probate court for an appeal from the assessment of benefits made by the drain commissioner, claiming-the benefit of chapter 5, Act No. 272, of the Public Acts of 1899. They filed a bond with the probate court as required by that act, and thereafter the probate judge proceeded, as directed by the act, to appoint a board of review of such assessments. The respondent concurred in this order, and the board of review was appointed. That board reviewed the assessment of benefits, and added a large amount of land to the assessment district, as the act of 1899 provided it might do. In January, 1900, the board notified the respondent drain commissioner, in writing, of its proceedings. He then refused to recognize the action of the board of review, claiming that the act of 1899 did not apply, as the drain must be completed under the drain laws as they existed prior to this amendment. Application was then made by the relator for a mandamus to the circuit court of Ottawa county to compel the drain commissioner to recognize the action of the board of review. The circuit court refused to make the order, and held, with the drain commissioner, that the drain must be completed and assessments made in accordance with the provisions of the act in force at the time the proceedings were commenced. The case comes into this court by writ of certiorari to review the order made by the circuit court.

It appears that, since the enactment of the law of 1885, there has always been a provision in the drain law that existing drains not completed may be completed under the provisions of the amended law. It is the contention of the relator that it has been the plain intention of the legislature since 1885 that drains might be completed under the new law, and that - the real reason for the saving clause when the statute was chauged from time to time was to avoid the possible claim that, without the saving clause, all rights acquired under the old law would be lost.

A somewhat similar question as now presented was presented in Brady v. Hayward, 114 Mich. 326 (72 N. W. 233 ). The proceedings mentioned in that case appear to have been commenced • prior to the amendment of the drain law in 1895, and the application and proceedings were in accordance with the drain law prior to 1895. The claim was there made that the amendment of 1895 repealed the law of 1885, and that the commissioner could not go on from that point, but that all proceedings must be dropped, and commenced anew under the law of 1895. It was said:

“It is impossible to read the law of 1885, with the amendments since made thereto, without coming to. the conclusion that it was the intention of the legislature that drain proceedings which had been commenced were not to fail because of the amendments, but were to be carried forward to completion, subject to the provisions of the law as amended, so far as applicable.”

It will be noticed that the saving clause in the act of 1885, referred to in the above case, provides that drains for which an application has been made, or which have been partly constructed, may be completed under the provisions of that act. The act of 1895 (Act No. 217, Pub. Acts 1895) contains no saving clause, and the body of the act does not purport to repeal any of the provisions of the old act, except section 20, chap. 3; and it was expressly held in Brady v. Hayward, supra, that the drain should be completed under the act as amended. In the present case, however, it is expressly provided by the saving clause of Act No. 272, Pub. Acts 1899, that:

“All acts or parts of acts heretofore enacted that are inconsistent with the provisions of this act are hereby repealed, saving all acts done and all rights acquired at the time this act takes effect; and any proceedings had or begun may be carried forward and completed thereunder, the same as they might have been done had this act not passed.”

We think it was the legislative intent that the act of 1899 should not be construed as having any effect upon proceedings partly completed under prior laws, but that it was the intention of the legislature to have such proceedings completed under the laws in force prior to the amendment of 1899. We think, therefore, the court below was correct in his construction.

The order made by the court below must be affirmed.

The other Justices concurred.


text:
    DOWD v. DOWD.
    Dog-Lien Proceedings — Discontinuance—Second StatementEstoppel — Waiver oe Lien.

       1. Where a statement of lien is made, and proceedings commenced thereunder, but discontinued, and a second state ment of lien is made, the first proceedings do not constitute-an estoppel against the second, where the lienor has continued to work between the last day’s labor as fixed by the first statement, and the last day as fixed by the second.
    2. An instruction by the lienor-to pay his wages to the principal defendant does not operate as a waiver of the lien, only so far as such instruction has been acted upon and the amount paid.
    Error to Grand Traverse; Mayne, J.
    Submitted March 7, 1901.
    Decided May 21, 1901.
    Log-lien proceedings by Albyn Dowd against Charles S. Dowd, principal defendant, and Clarence C. Tuxbury, Charles S. Bacon, Bayard T. Bacon, and Charles M. Ayer (the last three named doing business as Bacon Bros. & Ayer), timber owners. Prom a judgment for plaintiff, defendant timber owners bring error.
    Affirmed.
    This suit was brought to enforce a lien for work and labor upon timber, was tried by the court without a jury, and a finding of facts and law made. From the finding it appears that the defendant Tuxbury entered into a contract with defendants Bacon Bros. & Ayer to manufacture and sell to them 6,000,000 shingles, to be manufactured from cedar timber on certain described lands. The principal defendant, Dowd, owned a shingle mill, which he removed to a site on or near- these lands, upon an agreement with Tuxbury to manufacture the shingles. Plaintiff worked for defendant Dowd. On September 9th he commenced attachment proceedings against said shingles, alleging that the last day’s labor was done on the 18th day of August. This proceeding was discontinued, and another statement of lien made September 19th, in which it was stated that the last day’s labor was done on August 28th. Upon this latter statement this suit is based.. When not engaged at the mill, plaintiff assisted in building roads and in hauling and skidding timber. From August 18th to August 28th he was employed in removing refuse from the mill, building roads, and getting out timber to manufacture into shingles; but no shingles were-cut between August 18th and 28th. Plaintiff informed Tuxbury that he should pay the principal defendant for his labor, and Tuxbury did ,pay said principal defendant $75.17. Upon this state of facts the court rendered judgment against the principal defendant for $200, and found, a lien upon the shingles for $124.83. (.

      Underwood & Umlor, for appellants.

      M. M. Larmonth, for appellee.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). The filing of the first statement of lien and the discontinuance of proceedings thereunder did not constitute an estoppel against the second statement of lien. Neither did the instruction to Tuxbury to pay plaintiff’s wages to the principal defendant operate as a waiver, only so far as such instruction was acted upon and the amount paid. There was nonovation, and plaintiff was at liberty to rescind this instruction at any time, and insist upon his lien.

Judgment affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    MICHIGAN LAKE SUPERIOR POWER CO. v. ATWOOD.
    1. Replevin — Property Seized Under Tax Warrant.
    Under 3 Comp. Laws 1897, § 10651, forbidding replevin for property seized under a tax warrant, the failure of a collecting officer to verify his return of delinquent taxes, required by statute as the basis for their reassessment; will not authorize replevin for property taken to satisfy the reassessed tax.
    2. Taxes — Collection — Distress and Sale — Special Assessments.
    Under a city charter providing that lands returned delinquent for special assessments shall be reassessed on the general roll, the amount of such special assessment to be placed in a separate column, and the total tax carried out in the last column of the roll, the statutory remedy by distress and sale, under the warrant attached to the roll, is available as to the special tax as well as the general taxes; and this notwithstanding the owner of the lands at the time of the reassessment did not own them when the original proceeding was taken.
    Case made from Chippewa; Steere, J.
    Submitted March 8, 1901.
    Decided May 21, 1901.
    Replevin by the Michigan Lake Superior Power Company against Prank B. Atwood, treasurer of the city of Sault Ste. Marie, to recover property seized under a tax warrant. There was a judgment for plaintiff, and defendant assigns error.
    Reversed.

      John W. Shine, for appellant.

      Oren & Webster (George A. Cady, of counsel), for appellee.
   Hooker, J.

The plaintiff is a corporation organized for the purpose of constructing an hydraulic canal in the city of Sault Ste. Marie, and the defendant is the treasurer of said city. The action is replevin for two locomotives seized by the defendant under his tax warrant attached to the general tax roll of the city for the year 1899; and the plaintiff claimed upon the trial, and the circuit judge found, that the warrant conferred no authority to seize property for the assessment in question. The defendant has assigned error.

In the year 1896 a special assessment roll was made, to ■cover the cost of a sewer constructed in 1895, and included various parcels of land owned by different persons, none of which were then owned by the plaintiff, or by Mr. Douglas, who afterwards took title to some of them in trust for plaintiff. The greater part of the sum assessed was not paid, and in September, 1897, the common council determined that the roll was invalid for certain reasons, and a new roll was ordered. This was made in 1898, and it was approved by the board of review in December of that year, and placed in the hands of the treasurer for collection. In November, 1899, the roll was returned to the city comptroller, who spread the uncollected sewer tax taken from this special roll upon the general tax roll of the city for the year 1899, acting under section 9 of chapter 21 of the charter (Act No. 374, Local Acts 1889), hereinafter quoted. The sworn statement required by section 9 was not filed with the comptroller.

The plaintiff came into existence as a corporation in 1898. Douglas was its promotor and president, and took title to the lands in question, in trust for the company, •subsequent to the making of the first special assessment roll, but whether before or after its organization does not clearly appear; but all the parcels were formally conveyed by him to the plaintiff on May 29, 1899, upon a nominal consideration. The finding shows that, of the 17 parcels of land, only one was assessed to the plaintiff on the special roll of 1898, though others were assessed to Douglas, its trustee. The plaintiff paid the other taxes, but did not pay these assessments.

The failure of the treasurer to make oath to the statement of unpaid taxes was an irregularity, which is not available in an action of replevin, because the statute forbids that remedy when property is seized for the collection of a tax in obedience to the command of a valid tax warrant. See Northwestern Cooperage & Lumber Co. v. Scott, 123 Mich. 357 (82 N. W. 76), and cases cited.

Plaintiff asserts broadly that this portion of the tax appearing upon the general assessment roll cannot be lawfully collected by the distraint and sale of its personal property, and that, unless voluntarily paid, the only method of collection permitted by law is by a return of the same as delinquent, and sale of the lands. This must depend upon the provisions of the charter. It is undeniable that the charter confers the power of distraining the property of the owner of lands to pay a special assessment upon said lands appearing upon a special assessment roll against him, and this does not' depend upon his having been the owner at the time the improvement was determined upon or made. If it did, the collector would have no means of knowing whether or not the ownership had changed. He would be justified by his warrant in dis-training the property of the person charged with the tax upon his roll. This is also true in case of a reassessment, or when the uncollected assessment is carried upon the general roll. The warrant authorizes the collector to collect the tax, as mentioned in the last column of the general roll, by distress against the property of the apparent owner of the property taxed, as shown by the roll, and unless the law (which he must be presumed to know and understand) applies only to the current tax, and not to items of special assessment brought to and put upon the general roll from an uncollected special roll, he may dis-train for both. Counsel seem to recognize this, and plant their case upon the claim that the charter should be construed as limiting the right to distrain personal property to the period of 60 days under the warrant attached to the special roll, and that the warrant upon the general tax roll gives no such authority as to the special assessments ap. pearing there in a separate column as prescribed by law. Section 9 of chapter 21 and section 13 of chapter 24 of the charter must determine this question. They are as follows:

“Sec. 9. On the first Monday of June and the first Monday of November in each' year, the treasurer shall return to the comptroller any and all special assessment rolls remaining in his hands, the time of returning for which shall have expired, together with a statement on oath of the parcel or parcels upon which the amounts assessed have not been paid.” Act No. 374, Local Acts 1889.
“Sec. 13. Upon the equalizing of the said assessment roll by the board of supervisors of Chippewa county, the comptroller shall proceed to assess the taxes apportioned to the said city according to and in proportion to the valuation entered by the board of review in the assessment roll of the city for the year. * * * He shall further assess and levy in the same roll, in a separate column or columns headed ‘Special Assessments,’ upon the land, property, and persons chargeable therewith, all special assessments returned as delinquent by the city treasurer and remaining unpaid. * * *' The total of all taxes assessed against any one valuation or parcel of property shall be footed up and carried out in the last column on the right-hand side of such roll. All the taxes there assessed shall become at once a debt to the city from the persons to whom they are assessed.” Act No. 346, Local Acts 1891.

The latter section explicitly requires the inclusion of the special assessment in the footing contained in the last column on the right-hand side of the roll, and clearly makes all a debt to the city from the person assessed.. The following section authorizes a levy by distress and sale of the tax assessed, under the warrant, which commands the treasurer to collect the several sums mentioned in the last column of the roll.

We have, then, a case where the treasurer, in obedience to his warrant, has seized property for the collection of the amount remaining due of the aggregate of taxes as shown by the last column of his roll. This the law ex■plicitly authorizes, as we have seen, and it as explicitly requires the contested item to be included in the aggregate •contained in the last column.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Moore, J.

text:
    CARR v. LYLE.
    ISquity Jurisdiction — Antenuptial Contracts — Probate Courts.
    The jurisdiction of equity to entertain a bill by executors against decedent’s widow to enforce an antenuptial contract, to compel defendant to abide by a settlement made thereunder, and to restrain ejectment for dower, is not barred by the pendency in probate court of proceedings by the widow for her statutory allowances, her right to which is resisted on the ground of such contract; the probate court not having authority to grant the full measure of relief asked by the bill.
    Appeal from Van Burén; Yaple, J., presiding.
    Submitted April 2, 1901.
    Decided May 21, 1901.
    Bill by John R. Carr and Levi Lyle, executors of the last will and testament of John Lyle, deceased, against Emma V. Lyle and others, to enforce an antenuptial contract. From an order overruling a plea to the bill, defendant Emma V. Lyle appeals.
    Affirmed.

      Thomas J. Cavanaugh, M. L. Howell, and Edward Eacon, for complainants.

      McKnight & McAllister, for appellant.
   Moore, J.

The following statement of facts is substantially taken from the brief of the solicitors for complainants, and is fully supported by the record: This is an appeal from an order overruling a plea to a bill for the construction of a will, and for specific performance. The bill states the following matters: That August 19, 1896, the first wife of John Lyle, and mother of his children, died; that, for many years before his death, John Lyle had been a resident of the county of Van Burén, living on a farm, and was possessed of lands and personal property to the amount of $95,000', and indebted at the time of his. death in the sum of $15,000; that Emma V. Lyle, while living in the family of John Lyle as a domestic, was married to one Charles Marshall, a hired man of said John Lyle, from whom in July, 1875, she was divorced; that for more than 25 years next prior to the 8th day of March, 1897, she had been intimately acquainted with the financial circumstances of said John Lyle.

March 8,1897, the parties made an antenuptial contract, in which Emma V. Lyle released dower, allowances, and distributive share for a consideration of $5,000. March 9, 1897, John Lyle made a will, which was fully understood by both parties, and contains provision for payment in full of the consideration for the antenuptial contract. March 10, 1897, the marriage provided for in the contract took place; John Lyle being then of the age of 83 years, and Emma V. Lyle being of the age of 47 years. After the marriage the husband and wife lived together in the village of Paw Paw; Emma V. Lyle acting in the capacity of a clerk for her husband in his business, and becoming familiar with all his financial circumstances.

October 5, 189.9, John Lyle died. November 13, 1899, the will of John Lyle was duly probated on petition of Emma V. Lyle, a copy of the will and petition being annexed to the bill, and letters testamentary to the complainants were issued. After the issuing of the letters testamentary, Emma V. Lyle applied to the executors for the unpaid consideration provided for in the said contract and will, and received such consideration in full settlement of her claims against the estate, and in full performanee of said contract. That, relying on such settlement, the executors proceeded to administer said estate and to carry into effect the instructions contained in the will, sold land belonging to the estate to the amount of $34,000, and turned over a number of devises, legacies, and bequests mentioned in the will, and performed other acts in discharge of the trust, in reliance upon said contract and the full performance thereof. Said bill claims that, as a result, said Emma V. Lyle is estopped from making any further claim against said estate. January 4, 1900, Emma V. Lyle notified the executors that she would attempt to repudiate her contract, and filed her claim in the probate court for statutory allowances. The executors answered her claim, setting up the contract and will, including the codicil. She replied, and now threatens to bring ejectment against the executors and legatees for her dower in the real estate.

March 2, 1900, the bill in this suit was filed, and alleges that the antenuptial contract is valid and the attempted repudiation thereof will be inequitable, and prays relief, including specific performance of the contract, enforcement of equitable estoppel, and injunction against suit for dower and the prosecution of proceedings for widow’s allowances; also prays for general relief. There was due service of subpoena, but no answer; the only pleading on behalf of Emma V. Lyle being her plea, setting forth the proceedings in the probate court, the decision against her, and her appeal, as a complete defense to the entire bill. Her reply to the protest and claim of the executors filed in the probate court claims that, if said antenuptial contract exists, it is void, for reasons among which are the following: Want of knowledge on her part as to the extent and value of John Lyle’s estate, and of her legal rights and interests, and alleging, substantially, that her signature to the contract was obtained by artful concealment, false representations, and'fraud, and that there was no discovery by her of the frauds and wrongs aforesaid until after she had received certain money and securities from the executors; that, as soon as she made such discovery, she tendered restitution and insisted on her rights as widow. March 6, 1900, the decision in the probate court was entered. The appeal came afterwards, both the decision and the appeal being after the commencement of the chancery suit. August 19, 1900, the plea was duly overruled, and 20 days allowed for defendant to answer.

The record, as made, presents the question whether the complainants, on account of the proceedings had and taken in probate court, are thereby deprived of the right to proceed in a court of equity (1) to enforce the ante-nuptial contract; (2) to compel defendant Emma "V\ Lyle to abide by the settlement, made with the executors in accordance with the terms and conditions of the ante-nuptial contract, and her consequent election to take under the will; (3) to enjoin the commencement of suits in ejectment which it is alleged in the bill were threatened by her. Counsel for Mrs. Lyle contend that the probate court had jurisdiction to try and determine these questions, and, having entered upon the trial and rendered a judgment upon the same, such proceedings are a bar to a bill in equity filed by the complainants for the same purpose. The petition of Mrs. Lyle in the probate court was for the allowances provided by the statute to the widow during the settlement of the estate. While, in the determination of whether the petition should be allowed or not, the probate court might very properly take into consideration the antenuptial agreement, the order which it would make would be to either grant or refuse the allowances prayed for. The relief asked in the bill in chancery is much more than could be decided by the probate court in the proceeding then before it. The questions involved in this proceeding are fully discussed in the late cases of Thompson v. Tucker-Osborn, 111 Mich. 470 (69 N. W. 730), and Koch v. Koch, ante, 187 (85 N. W. 455). We do not deem it necessary to do more than call attention to these cases.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    WILLIS v. BESSER-CHURCHILL CO.
    Injury to Employé — Assumption of Risk.
    An employé in a shingle mill, -who had had considerable experience in and about such mills, assumed the risk of injury from the failure of the movable table of a cut-off machine, which he was operating, to clear the saw, due to an accumulation of refuse at the foot of the machine, and cannot recover therefor against his employer; the tendency of such material so to accumulate, and the probable effect thereof, being open to ordinary observation.
    Error to Alpena; Emerick, J.
    Submitted May 10,1901.
    Decided May 21, 1901.
    Case by Samuel T. Willis against the Besser-Churehill ■Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Keversed.

      U. B. Loranger, for appellant.

      Charles B. Henry and Joseph H. Cobb, for appellee.
   Moore, J.

The plaintiff, while operating a circular saw for defendant, severely injured his hand. For this injury he brought suit and recovered judgment. The case is brought here by writ of error. Many questions are xaised by counsel, but we think one of them is decisive.

The plaintiff was a man of at least ordinary intelligence, 37 years old. According to his testimony, he had lived in the lumber region about 15 years, and had worked around or about sawmills 8 or 9 years. He worked 30 or 35 days in defendant’s mill, taking bolts from the drag saw to the cut-off table. He quit work for a time, when he was employed to work at the cut-off table and saw. The manner of doing the work is described as follows by the counsel for plaintiff:

“The cut-off table and saw were used in sawing and cutting the long bolts taken from the drag saw in proper lengths for shingles, and consisted of a fixed, stationary, circular saw, with hooked teeth, and a movable, trough-shaped table, with a slot and opening transversely through the back and partly through the bed or base of the table, through which the saw would protrude when the movable table was pushed back towards the saw. The table was built on frame timbers or legs fastened near the floor of the mill on an iron rod in such a manner as to be swung or moved by the operator from an upright position over and towards the saw far enough to saw off the bolts. The legs on which the table rested, and to which it was fastened, held the table in an upright position when not in operation, and were so constructed as to prevent the table from coming further towards the operator than in an upright position by means of stationary stop timbers at the base of the legs of the table, against which the legs of the table came in contact when upright, and when bolts were not being sawed by the operator. When the table with the bolt on it was pushed forward by the operators onto the saw, a V-shaped opening would be made between the stop timbers and the base of the legs of the table; and, if any material dropped into this V-shaped opening, it would prevent the table from coming back in its proper place, and cause the saw to protrude through the slot in the table to an extent controlled by the size of the obstacle.
“Two men operated this table. The plaintiff was one at the time of the injury; John McAuliff, the other. Together they would place a long bolt on this trough-shaped table, square off one end of the bolt, together shove it along against a stop-gauge attached to the back of the table and to the left of it, as you face the table, to gauge the length of the cut. They would then shove the bolt into the trough of the table, and together would shove the table against the saw. When the cut was sawed off, they would pull the table back to its upright position; and, if no obstacle lodged between the stop timbers and the legs of the table at the base of the legs aforesaid, the table would come back so as to clear the saw.”

The plaintiff worked with this machine 5-J days, when he was hurt. At the time of the accident, which occurred about 11 o’clock in the forenoon, the men had a wet, slimy, cedar log, about 10 inches in diameter, on the table. They had squared off the end of the log, and cut from it one shingle bolt. What occurred then is described by the plaintiff as follows:

“We cut a shingle length off, and McAuliff put it to the bolter. The table came back, and the bolt rolled back on the back of the table. I shoved it to the gauge, and my hand slipped over the back of it, and the saw catched my hand. I grabbed my hand like this, and I says, ‘My God! this is awful.’ I stood there just long enough to see that those teeth were projecting through the slot. Then I seen what was wrong underneath, — that there was some obstruction that was keeping this timber from coming back to the stop timber here,- — and I left the table. After the first cut had been taken off, one cut remained, which had to be squared on the right-hand end. After the first cut had been cut, I let the table drop back in the usual way. Then, after the bolt rolled away from the trough, I did as I usually did, — grasped the bolt with my left hand and shoved it towards the gauge. This time my hand slipped, the bolt rolled a trifle in, and the saw catched me on the back of the hand. ”

It is the claim of the plaintiff that, because of the liability of bark and sawdust to prevent the table coming back, the machine was a dangerous one, known to be such by the defendant, and that allowing plaintiff to work with this machine without instructing him about the danger made it guilty of such negligence as would entitle him to recover. The saw in use was four feet four inches in diameter. A model of the machine was produced in court by the plaintiff. An inspection of it, as well as a perusal of the description of the machine and the manner of its operation, shows it to be of very simple construction. It was apparent to anybody that, if sawdust and bark were allowed to accumulate at the bottom of the machine, it was liable to prevent the table from coming back sufficiently to clear the saw. If the person operating the machine exercised such care as was due to himself, as well as to his employer, td see whether the table was clear of the saw before pushing the bolt along, he would have no trouble in learning that fact. It would be shown not only by the protrusion of the saw through the opening* but it would be shown by the position of the table itself, swinging as it did upon a pivot. It does not require a very high degree of intelligence to know that a rapidly revolving saw, more than four feet in diameter, is a source of danger to any one working in its immediate vicinity. It must have been apparent to the plaintiff that it was dangerous to push the log along until the table was in proper position. In the exercise of ordinary care, he should have known the table was in proper position before he pushed the log along. The injury which the plaintiff has received is greatly to be regretted, but it occurred under such circumstances as to be one of the risks of the business in which he was engaged. Schroeder v. Car Co., 56 Mich. 132 (22 N. W. 220); Sjogren v. Hall, 53 Mich. 274 (18 N. W. 812); Kean v. Rolling Mills, 66 Mich. 288 (33 N. W. 395, 11 Am. St. Rep. 492);. Balle v. Leather Co., 73 Mich. 158 (41 N. W. 216); Toomey v. Steel Works, 89 Mich. 249 (50 N. W. 850); Wheeler v. Berry, 95 Mich. 251 (54 N. W. 876); Johnson v. Hovey, 98 Mich. 343 (57 N. W. 172); Mackin v. Refrigerator Co., 100 Mich. 276 (58 N. W. 999); Lamotte v. Boyce, 105 Mich. 545 (63 N. W. 517); Journeaux v. E. H. Stafford Co., 122 Mich. 396 (81 N. W. 259).

Judgment is reversed. No new trial ordered.

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


text:
    LANSING v. MICHIGAN CENTRAL RAILROAD CO.
    Infants — Contracts—Settlement—Disaffirmance.
    A compromise and settlement by an infant of a claim for personal injuries is voidable only, and cannot be repudiated by him before attaining his majority.
    Error to Monroe; Kinne, J.
    Submitted April 17,1901.
    Decided May 21, 1901.
    Case by Edith Lansing, by next friend, against the Michigan Central Railroad Company, for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Ira G. Humphrey and Willis Baldwin, for appellant.

      C. A. Golden {Henry Russel, of counsel), for appellee.
   Moore, J.

In November, 1899, plaintiff was injured in a railroad accident upon defendant’s railroad. To recover damages for said injury, she sued defendant in the Monroe circuit court. No next friend was appointed. Her attorneys were Look & Humphrey. Negotiations were had between Mr. Pond, acting for the defendant, and Mr. Look, acting for plaintiff, looking to a settlement of the controversy. Mr. Look telegraphed plaintiff to come to Detroit, and she did so. A settlement was agreed upon. The plaintiff signed and caused to be delivered to defendant the following paper:

“May 25, 1900.
“The Michigan Central Railroad Co.
“To Edith Lansing, Dr.,
“ Toledo, Ohio.
“For amount agreed to be paid by said company and received by Edith Lansing in compromise of a claim presented to this company by said Edith Lansing for damages on account of injury to her person and property alleged to have been suffered by her by wreck of a train of said company on November 9th near Vienna station, between Detroit and Toledo, and in settlement and compromise of the suit now pending in the circuit court for the county of Monroe, Michigan, in which said Edith Lansing is plaintiff and the Michigan Central Railroad Company is defendant (said suit to be discontinued),...........$750.00.
‘ ‘ Said company claims that said train was wrecked without fault on its part, but maliciously, by persons having no connection with it, and that it is neither morally nor legally liable in the premises; and it has consented to make this payment solely in compromise of the claim so presented.
“Received, May 25th, 1900, seven hundred and fifty dollars ($750.00), in full of above.
“Edith Lansing, [l. s.]
“In presence of
“Joseph F. Vieson.
“Alfred Levy.
“William Look.
“ To John E. Griffiths, Local Treasurer M. C. R. R. Co., Detroit, Mich.:
“You are hereby authorized and requested to pay the above amount of seven hundred and fifty dollars by check to the order of William Look, my attorney.
“ Edith Lansing, [l. s.]
“In presence of
‘[Joseph F. Vieson.
“Alfred Levy.
“William Look. [Revenue stamp.]
“Received check of Michigan Central R. R. Co. for $750.00 in payment of within voucher.
“May 26, 1900. William Look,
“For Look & Humphrey.
“Witness: George E. Tegart.”

Upon the payment of the money the suit in the circuit court was discontinued, Some time after this the present suit was brought, Mr. Humphrey acting as the attorney for the plaintiff. It is her claim that she was induced by the false statements of Mr. Look to agree to the settlement; that she was under age when she signed the papers, and is not bound by the settlement, because she was a minor when she entered into it. She claimed on the trial that but $300 was paid to her, and offered to show that she had spent the money for necessaries, and for that reason could not return it to the defendant.

Upon the trial plaintiff gave testimony tending to show the accident, and the fact that she was injured, and claimed that, when the settlement was entered into, she was under the age of 21 years, and was still under 21 years of age at the time of the trial. Defendant offered in evidence the settlement, and also the testimony of the father of the plaintiff, and admissions made by the plaintiff, tending to show she had attained her majority when the settlement was made. The circuit judge was of the opinion that, upon any theory of the case, plaintiff was not entitled to recover; that if she was of age when the settlement was made, as it is not claimed that defendant was party to any fraud, the plaintiff would be bound by it; that, if she was not 21 years of age when the case was tried, then she was too young to disaffirm the settlement, and for that reason could not recover.

It is claimed by counsel for plaintiff that the settlement was not a contract, and could be avoided at any time. It is also contended that, even if it is deemed a contract, it could be disaffirmed at any time; counsel citing a number of authorities. An examination of these authorities shows a good deal of confusion in the various decisions, but the questions involved are not new in this State. If the plaintiff had attained her majority at the time when she agreed upon a settlement with the attorney for defendant, and signed the papers which she did sign, she would Rave been bound by the settlement, in the absence of fraud. Lewless v. Railway Co., 65 Mich. 292 (32 N. W. 790). Conceding that the plaintiff at this time was under age, what was done was not void, but voidable only. The railroad company was bound by it. It could be avoided only by the infant. In Dunton v. Brown, 31 Mich. 182, it is said:

“ An infant’s partnership agreement is not void. It is, at best, only voidable; and we have found no authority which enables the infant or his guardian to determine whether a voidable contract shall be affirmed or annulled while the infancy continues. It appears to be a matter for his own decision when he arrives at mature age. It is only such agreements as are not possibly to be regarded as. beneficial to him which are null from the beginning.”

In Armitage v. Widoe, 36 Mich. 124, it is said:

“In what has thus far been said, we have not touched upon the authority of the infant to disaffirm a contract of purchase before coming of age. If the contract had become his in any way, it would be, we take it, only a voidable contract; and in Dunton v. Brown, 31 Mich. 182, the right to disaffirm a voidable contract during infancy was denied.”

See, also, Osburn v. Farr, 42 Mich. 134 (3 N. W. 299).

The direction of the circuit judge is justified by the Michigan cases.

Judgment is affirmed.

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


text:
    STORRS v. MICHIGAN STARCH CO.
    Injury to Employé — Assumption op Risk.
    An adult employé in a starcli factory, who, in the course of his employment, was required to step over an open conveyor containing a revolving screw, assumed the risk of contact with the screw from slipping on pulp accumulating on the floor, and cannot recover for an injury so received.
    Error to Grand Traverse; Mayne, J.
    Submitted April 17, 1901.
    Decided May 21, 1901.

      Case by Addison E. Sfcorrs against tbe Michigan Starch Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      W. H. Foster, for appellant.

      Farm. 0. Gilbert (Harry E. Hooker, of counsel), for appellee.
   Moore, J.

Plaintiff, while at work for defendant, was injured by coming in contact with some of its machinery. For these injuries he sued the defendant, and recovered a judgment. The case is brought here by writ of error.

According to the testimony of plaintiff, he was 22 years of age when he received his injuries. For seven years he had worked in a basket factory, making baskets upon a form. There was some machinery in this factory, but plaintiff says he did not work in that part of the building where the machinery was. He also worked about three weeks in a sawmill, carrying slabs from a slitting saw. He worked for defendant about a month, first on the second floor and then on the first floor, before he was put to the employment where he received his hurt. He disclaimed upon the trial any knowledge of machinery. Two or three days before he was hurt, he was put in charge of six shakers, and that portion of a conveyor which they supplied. These shakers were sieves having an inclination of about three inches. They were separated by an alley between them. A continuous supply through slides came to them, at the upper side, of ground potato pulp. The supply was regulated by opening or shutting the slides. A quick motion was imparted to these sieves, and the starchy part of the potatoes passed through the sieves, while the more solid portions of the potatoes passed over the surface of the sieves or shakers, and dropped from the lower edge thereof into a long square box, called a “conveyor,” the open upper side of which was a little lower than the lowest portion of the sieves. This was a long box running in front of all the shakers. It was about seven inches wide, and running the entire length of it was a spiral conveyor or screw, which revolved; and, as a result of its revolutions, the pulp which fell into the box was conveyed to a tank at the end of the conveyor. To prevent the pulp from clogging on the sieves, and to facilitate the separation of the starch from the mass, if .was necessary for the operator to thump upon the sieves, and also to throw, by means of a hose, water upon them. There ivas also a tendency on the part of the pulp, after it reached the conveyor, to clog, and then accumulate and run over the box upon the floor. This tendency was remedied by also throwing water, by means of the hose, upon the pulp in the conveyor.

.The plaintiff says the top of the conveyor was but 13 or 14 inches from the floor. The man who planned and constructed it testifies it was 1? inches from the floor. The top of the revolving screw was a little ways below the top of the box. To pass from one of the alleys between the shakers to another, it was necessary for the workman to step over the conveyor. Upon the morning plaintiff was hired, the • foreman went with him to the place where he was to work, and showed him how to do the work, passing from one shaker to the other, and stepping over the conveyor as he did so, showing him in detail how the work was done. It was part of the work of the plaintiff to clear the floor. The second or third day after he was set at work, the plaintiff claims that, without fault of his, a good deal of pulp had accumulated upon the floor; that he was washing the sieves with the hose, and had occasion to step over the conveyor; that, as he got his foot part way over, owing to the slippery condition of the floor he slipped, his foot dropped into the open top of the conveyor, and was caught by the revolving screw and badly hurt. The only other person who saw the accident testified that, .while using the hose, the plaintiff, with his back to the conveyor, and without looking around, attempted to step over it, and did not step far enough, but put the toe of his foot into the open top, when it was caught by the revolving screw.

Many errors are assigned, but the one chiefly relied upon is that, taking plaintiff’s own version of the situation, a verdict should have been directed in favor of defendant. Before proceeding with that contention, we desire to speak of the claim of counsel in the brief of plaintiff that the ■record.does not contain all the testimony, and therefore the verdict should be affirmed; citing Van Werden v. Winslow, 117 Mich. 564 (76 N. W. 87). The counsel have evidently overlooked the statement in the certificate of the circuit judge “that the foregoing is all the evidence given in the case covering or in relation to the matters assigned as error.”

It is the claim of plaintiff: That “the uncovered and unguarded screw-shaped conveyor was located where plaintiff must step over it when performing his duties. No word of caution was given to plaintiff by defendant with reference to this conveyor, or informing him of the fact that the floor would become wet and slippery and covered with potato pulp.” That “it was a question for the jury whether the defendant was not negligent in failing to guard the screw-shaped conveyor, and in failing to notify plaintiff of the danger arising from the slippery floor.” That “the case of King v. Lumber Co., 93 Mich. 183 (53 N. W. 10), is a parallel to the one at bar, and that the citation of further authority is unnecessary.”

An examination of the case cited will show it is entirely unlike the one at issue here. The plaintiff was shown about his work before he commenced to do it. He knew he must step over the conveyor, — a task not at all difficult to do. To say of him that he did not know he was likely to get hurt if he put his foot into a box in which there was a revolving screw is not to attribute to him a very high degree of intelligence; nor can we believe it possible that a person of his age and experience did not know that the starchy, wet pulp of the potatoes upon the floor would make it slippery. It is difficult to understand how he would have had any more knowledge upon those subjects if he had been told, than his own observation would have given him. The conditions surrounding him were not at all complicated. They were as open to his observation as to anybody. If, under the circumstances of this case, a liability attaches, an employer does, indeed, become an insurer of the employé. See Swoboda v. Ward, 40 Mich. 423; Hutchins v. Wagon Co., 61 Mich. 252 (28 N. W. 85); Balle v. Leather Co., 73 Mich. 158 (41 N. W. 216); Fisher v. Railway Co., 77 Mich. 546 (43 N. W. 926); Willis v. Besser-Churchill Co., ante, 659 (86 N. W. 133), and cases there cited. The court should have directed a verdict in favor of defendant.

Judgment is reversed. No new trial.

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


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    FIRST UNIVERSALIST CHURCH v. PUNGS.
    1. Contracts — Subscription to Purchase Church Site — Con SIDERATION.
    An agreement by several subscribers to pay a certain percentage, respectively, of the cost of a church site, is supported by a sufficient consideration, and is not . void because no payee is named therein.

      Ü. Same — Estoppel.
    Defendant and others signed a subscription by which they severally agreed to pay a certain percentage of the cost of a church site, such cost to be fixed by appraisers in accordance with the terms of an option to purchase contained in a lease under which the church then occupied the property. An appraisement was made and the price agreed upon, but not in exact conformity with the terms of the lease. The church being unable to pay for the property at the expiration of its option, an extension of time was arranged for on its agreement to pay interest, and the title was taken in the name of a third person, who contracted the property to the church. Held, that defendant, having participated as a trustee of the church in carrying out the purchase in the manner stated, was estopped to assert that his subscription was on the implied condition that the full purchase price should be subscribed, and to rely on the several departures from the terms of the subscription agreement, as a defense to an action for his subscription.
    Error to Wayne; Carpenter, J.
    Submitted April 17, 1901.
    Decided May 21, 1901.

      Assumpsit by the First Universalist Church against William A. Pungs to recover the amount of a subscription. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Barbour & Bexford, for appellant.

      Walter E. Oxtoby (Wilkinson, Post & Oxtoby, of counsel), for appellee.
   Long, J.

The parties to this cause do not disagree upon the facts. Plaintiff is an incorporated church society. In February, 1880, by a written lease, it leased the property now occupied by its church edifice from the McKinstry estate for an annual rental of $250, payable quarterly. The lease contained an option under which the land and building thereon might become the property •of the church upon its giving to the McKinstry estate written notice of its intention to purchase on or before April 1, 1894, and upon payment of a price to be •determined in the following manner: Each party to the lease to select an appraiser, and these two to select a third, and the three persons so chosen to appraise the land without regard to improvements thereon. On January 3, 1893, the church society being desirous of taking advantage of the option contained in the lease, a meeting was held at the house of Mr. Simon J. Murphy. At this meeting a subscription paper was presented to those present, among whom was defendant, Pungs, who was at that time a member of the board of trustees of the society. This subscription. paper, after reciting the conditions of the lease under which the property could be purchased by the society, stated:

“The value of the land or the debt we have to meet may be represented by 100 per cent. It cannot be known exactly what the amount will be. It can be approximated. You are asked to sign what proportion you are willing to assume — subscription—for the purpose of paying for the lot on which the Universalist church, the Church of our Father, stands in the city of Detroit, Michigan; the value of said lot to be determined according to the terms of the contract existing between the estate owning the lot and the church occupying the lot. We, the undersigned, do hereby agree to pay such proportion or per cent, of the indebtedness,, when determined according to the terms of the contract, as is set opposite our names. These subscriptions shall be due on or before May 1, 1894.”

Mr. Murphy subscribed 25 per cent., Mr. Newcomb 25 per cent., Mr. Bowling 10 per cent., and defendant, Pungs, subscribed “.05.” Seven others subscribed per cents., and still others subscribed fixed amounts. The percentages subscribed amounted to 85 per cent., and the fixed subscriptions to $1,300 additional.

While the record does not contain a notice served on the McKinstry estate by the church society of its intention to take the property under the terms of the lease, it does contain an acknowledgment of the receipt of the notice in a paper signed by the trustee of the estate and other parties, the heirs, who were interested in the estate. This writing also contains a recitation of the appointment of George Dingwall as the appraiser to act on the part of the estate, and an agreement that, in case the two appraisers appointed by the parties agreed upon the value of the property, the estate would waive the' appointment of a third appraiser, and that the appraisal by the two should have the same force and effect as though made by the three. The church society appointed Samuel A. Plumer, and the clerk of the church signed an agreement that, if the two appraisers agreed, the appraisement should stand. The two appraisers thus appointed appraised the value of the land, without regard to improvements, at $30,000.

On April 26, 1894, a special meeting of the trustees of the church was held, at which the defendant, Pungs, does not appear to have been present. At this meeting a resolution was adopted authorizing the president and clerk to arrange for an extension of time for the payment of the appraisal of $30,000 to September 1, 1894, with interest. Another trustee meeting was held on September 4, 1894, at which Mr. Murphy reported that no word had been received from the McKinstry estate. From this it appears that the society was making every effort to take care of its right to purchase. Another meeting was held December 2, 1894, at which time it was reported that the Mc-Kinstry estate did not wish to accept the $30,000 without the $900 interest which had accrued. Matters finally culminated by the calling of a special meeting at the house of Mr. Murphy on December 10, 1894. The call was signed by all the trustees, including the defendant, who signed, “ Wm. A. Pungs. Yes.” Accordingly, a meeting was held on this date, at which Mr. Pungs was present. A plan was adopted by which Mr. Murphy was to be substituted for the McKinstry estate, and assume its relations with the church. The McKinstry estate was, therefore, on motion of Mr. Pungs, authorized to execute a contract with Mr. Simon J. Murphy for the church property, and the church officers were authorized to contract with Mr. Murphy for the property. December 31, 1894, another trustee meeting was held, at which defendant, Pungs, was present. A resolution was here passed unanimously which recited that the society had elected to purchase the property, and was under obligation to pay to the McKinstry estate $30,000 and interest; that the church was unable to raise the necessary sum, and Mr. Murphy had consented to assume the obligation, a .id extend the time of payment to himself. The resolution requested the McKinstry estate to execute a contract to Mr. Murphy. Another resolution was adopted unanimously, directing the church officers to contract with Mr. Murphy for the property for the sum of $30,000. Accordingly, the MeKinstry estate, by an instrument dated November 1, 1894, did contract with Mr. Murphy for the purchase by him of the church property; and on November 1, 1898, Mr. Murphy received a deed of the land from the McICinstry estate, and is now the owner of the property. The church entered into a contract with Mr. Murphy for the purchase of the property from him for $30,000. The subscriptions were never abandoned nor allowed to lapse. A record book was kept, in which the various subscribers were charged with the amounts severally subscribed; and upon these amounts interest has been regularly paid, and in many cases the principal likewise.

Defendant, William A. Pungs, failed to pay the amount of his subscription, and this action is brought to recover such amount. The court below directed the verdict in favor of plaintiff for $1,986.24, which is conceded the correct amount, if plaintiff be entitled to recover at all. The defendant brings error.

The argument of defendant’s counsel is:

1. That there was no binding contract between the parties.

2. That the extension of time of payment sought by the plaintiff by agreeing to pay interest upon its purchase was not done in reliance upon the subscriptions, and, if it were, it released defendant if he did not consent to it, because his subscription was for the payment presently of a valid appraisement, without interest.

We think the subscription was valid and binding ^pon the defendant in its inception, within the rule laid down by the court many times. In Underwood v. Waldron, 12 Mich. 73, the defendant was sued upon his subscription made for the purpose of purchasing land or erecting a college building. This court held that, where a subscription is made by which the signers promise to pay the several sums subscribed for the purpose of erecting a building for educational purposes, and something has been ■done, or some liability or duty assumed, in reliance upon the subscription, in order to carry out that object, the promises are binding, and may be enforced, although no pecuniary advantage is to result to the promisors. It was said •

“We cannot hesitate to hold that a school, or church, ■or other similar institution which men are anxious to have built, and promise to pay for, is ‘ valuable ’ to them in a legal sense. In most cases there is a pecuniary value in the enhanced price of neighboring property. I But, apart from this, any worthy purpose for which men geher-' ally are willing to expend money must be regarded by courts as worth money when it is promised, j We know ■of no safer test to apply to human transactions.”

In Comstock v. Howd, 15 Mich. 237, it was expressly field that a subscription by which several persons promised to pay the sums set opposite their names to provide a free dinner on the Fourth of July to returned soldiers was legally binding, notwithstanding no promisee was named, and might be collected in the name of one of the number, who was selected by the rest to collect and disburse the money. It was also held that, the object being a meritorious one, and the subscription by the defendant being an inducement to others to subscribe and pay their money, both constituted a valid consideration.

In Allen v. Duffie, 43 Mich. 1 (4 N. W. 427, 38 Am. Rep. 159), the action was brought upon a subscription made for the purchase of a house of worship for a religious society. One Morrill had built the church on his ■own land, and the society was desirous of buying it. The •donors did not actually subscribe, but announced their gifts at a church service on Sunday, and a Mr. Mills subscribed for them. The owner deeded the property to the church society. Mr. Allen was called upon for a note for Jais subscription so made by Mills under his (Allen’s) direction, but refused to give it, saying his word was as good as his note, and, anyway, that the promise was made on Sunday, and was void. It was held that a recovery could be had for the amount of Allen’s subscription, and that a mutual subscription could be supported, even though no payee was named, provided the object be made definite and certain; that the mutual promises of the subscribers were all the consideration needed to support the promise.

The subscription in the present case was made, it was for a meritorious purpose, and was of sufficient certainty as to the object sought and the amount to be paid. The claim that the defendant was relieved from his undertaking by the after-agreement to pay the interest of $900 cannot be upheld. The record shows conclusively that at a meeting held by the trustees, at which defendant was present, on December 31, 1894, he assented to pay the interest then demanded by the estate.

It is claimed that the subscription by defendant was conditioned upon the full amount being raised, and that the court erred in holding the defendant waived that condition. We think the action taken by the defendant in the meetings held by the trustees amounts to a waiver of that claim, if such subscription was made upon any such condition. The language of the subscription paper has been heretofore set out. It is not conditioned on the full amount being subscribed. Each subscriber absolutely and unconditionally agrees “to pay such proportion or per cent, of the indebtedness, when determined'according to the terms of the contract, as is set opposite our names. These subscriptions shall be due on or before May 1, 1894.” The subscriptions were made January 3, 1893, and the option to buy did not exist until April, 1894.

It is the further claim that the court erred in holding that the defendant waived an appraisement according to the terms of the lease; also in holding that the plaintiff’s inability to purchase from the McKinstry estate did not render the defendant’s subscription void; and in holding that the plaintiff’s contract with Murphy was not á waiver of defendant’s subscription. The facts have been very fully set out. The defendant acquiesced in the taking of the title in the name of Mr. Murphy, and also in the appraisement made by the two appraisers. He made the motion that Mr. Murphy take the contract from the McKinstry estate, and acquiesced in the action taken at the same meeting by which it was agreed that the plaintiff should enter into a contract with Mr. Murphy. We think the court below was not in error in his rulings.

We find no error in the record, and the judgment must be affirmed.

Hooker, Moore, and Grant, JJ., concurred. Montgomery, C. J., did not sit.


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    WESTINGHOUSE CO. v. BOYLE.
    Statute op Limitations — Part Payment op Debt — Foreclosure op Chattel Mortgage.
    The application of the proceeds of a chattel-mortgage sale on a note which the mortgage was given to secure is not such a part payment of the debt, under 3 Comp. Laws 1897, § 9744, as will arrest the running of the statute of limitations, since there is nothing to justify the inference of a new promise to pay.
    Error to Ingham; Wiest, J.
    Submitted April 17, 1901.
    Decided May 21, 1901.

      Assumpsit by the Westinghouse Company against James Boyle on certain promissory notes. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Black & Dolan, for appellant:
    To the point that the case was taken out of the operation of the statute, counsel cited Blair v. Carpenter, 75 Mich. 167 (42 N. W. 790); Sornberger v. Lee, 14 Neb. 193 (15 N. W. 345, 45 Am. Rep. 106); Moffitt v. Carr, 48 Neb. 403 (67 N. W. 150, 58 Am. St. Rep. 696); Bank
      v. Rowland, 1 Colo. App. 468 (29 Pac. 465); Haven v. Hathaway, 20 Me. 345; Porter v. Blood, 5 Pick. 53; Whipple v. Blackington, 97 Mass. 476; Taylor v. Foster, 132 Mass. 30.

      L. B. McArthur (Thomas, Cummins & Nichols, of counsel), for appellee:
    Cited to the contrary: Jewett v. Petit, 4 Mich. 510; Parsons v. Clark, 59 Mich. 417 (26 N. W. 656); Lester v. Thompson, 91 Mich. 254 (51 N. W. 893); Sweet v. Ellis, 109 Mich. 466 (67 N. W. 535); Brown v. Latham, 58 N. H. 30 (42 Am. Rep. 568); Winchell v. Hicks, 18 N. Y. 558; Harper v. Fairley, 53 N. Y. 442; Smith v. Ryan, 66 N. Y. 352 (23 Am. Rep. 60); Wolford v. Cook, 71 Minn. 77 (73 N. W. 706, 70 Am. St. Rep. 315); Campbell v. Baldwin, 130 Mass. 199; Jones v. Langhorne, 19 Colo. 206 (34 Pac. 997); Gowan v. Forster, 3 Barn. & Adol. 507; Turney v. Dodwell, 3 Ellis & Bl. 136; Irving v. Veitch, 3 Mees. & W. 90.
   Long, J.

These two cases were tried as one before a, jury, and verdict directed by the court in favor .of defendant. It appears that in 1891 defendant bought a bean thresher of plaintiff for $430, giving a chattel mortgage-thereon for the full amount, together with his three promissory notes for $143.33 each, due respectively as follows :. December 28, 1891, September 28, 1892, and September-28, 1893, — with interest from maturity. These notes-were secured by the chattel mortgage. Defendant paid the first note at the time it became due. In September, 1893, plaintiff called on defendant for payment of the other notes, and he refused to pay on the ground that the plaintiff should repair the machine. On December 16,, 1893, defendant wrote the plaintiff as follows:

“Leslie, Mich., Dec. 16, 1893.
“Westinghouse Co.,
“Schenectady, N. Y.
“Gentlemen: Your Mr. Bates was at my place yesterday ; notified me that he was going to sell the bean huller, by chattel-mortgage sale, bought of you in ’91, for which: you hold two of my notes to the amount of $280, or thereabouts. As you are aware, I heretofore notified you that I could not do satisfactory work with the machine, and have asked you and your agents repeatedly to repair it up, and I would then willingly pay for it. As you paid no attention to these requests, I delivered the machine to your Mr. Bates at the transfer house at Jackson this fall. I wish to notify you now, before making yourselves any expense, that I am ready and willing to satisfy my no.tes when you make the machine satisfactory to me or my customers. Unless you do this, I wish to give you notice that I shall pay nothing further on the notes, nor pay any attention to any chattel-mortgage sale you may have. As the notes are both past due, I am entitled to an offset against them, and shall defend myself to the end, in case you should try to collect them by force. If your intentions are strictly honorable, and your State agent would call on me with that intention, before any sale, and arrange to repair this machine up in satisfactory shape, all could be'made satisfactory; but, until the machine has first been put in A 1 shape, I shall do nothing, so you can act your own pleasure, but please answer this letter. I send this by registered letter, that there may be no mistake about your getting it. Yours truly,
“James Boyle.”

Thereafter the plaintiff found the machine at the transfer house at Jackson, took it under its chattel mortgage, and proceeded, under the power of sale contained in the mortgage, to sell it. It sold for $25, from which the costs of sale were deducted, leaving a balance of $9.40. The sale was made on December 22, 1893, and reported to the home office in New York, where the plaintiff indorsed on each note $4.70. These suits were commenced on these notes December 7, 1899. It is conceded that the notes were barred by the statute of limitations at the time suit was commenced, unless taken out of the bar by the indorsement on December 22, 1893, of the $4.70 on each.

The contention of counsel for plaintiff is that the notes and mortgage must be taken together, and construed as one transaction; that, under the power of sale contained in the mortgage, it was the right of the plaintiff to sell the security upon default of payment, and, when the sale was made, it was plaintiff’s duty to indorse the proceeds upon the notes; that in making the sale plaintiff was acting as the agent of defendant under the power contained in the mortgage, and that therefore in making the indorsements it was acting for defendant and in his interest; that the indorsements were as much the act of the defendant as though he had made them himself; and that the application of the proceeds of the sale was a good part payment, within the terms of section 9744, 3 Comp. Laws 1897, which provides:

“Nothing contained in the four preceding sections shall alter, take away, or lessen the effect of a payment of any principal or interest made by any person; but no indorsement or memorandum of any such payment, written or made upon any promissory note, bill of exchange, or other writing by or on behalf of the party to whom such payment shall be made or purport to be made, shall be deemed sufficient proof of the payment, so as to take the case out of the operation of the provisions of this chapter.”

Counsel cite Blair v. Carpenter, 75 Mich. 167 (42 N. W. 790), as sustaining this claim. We think not. In that case it was conclusively shown that the agent of Myron Harris turned over the new mortgage, the amount of which was indorsed upon the old mortgage, and that payment operated to take the first mortgage out of the bar of the statute. In the present case, while it may be said that, on the sale of the machine, the plaintiff was bound to indorse the net amount of moneys received upon the notes, it does not follow that in making such indorsement the notes were taken out of the bar. In order that indorsements may have such effect, there must be something in the case to show, or tending to. show, a new promise, either express or implied. It cannot be said that by the giving of the chattel mortgage in 1891, containing a power of sale upon default of payment, though the plaintiff, in acting under such power as the agent of defendant, would be bound to apply the proceeds upon the notes, it follows that it was the intention of the defendant to have such payments operate as a renewal of the notes; In other words, there is nothing in these facts that shows a new promise, either express or implied. In Jewett v. Petit, 4 Mich. 508, this question was discussed, and the rule stated that unless the debtor renounces the benefit and protection of the statute, and voluntarily makes a new promise to pay the old debt, the bar is not removed. In Lester v. Thompson, 91 Mich. 254 (51 N. W. 893), it was said:

“The rule is well settled that part payment is but evidence of an admission of an indebtedness; but an admission of an indebtedness, to take the case out of the statute, must be such as reasonably leads to the inference that the debtor intended to renew his promise to pay.”

See, also, Parsons v. Clark, 59 Mich. 417 (26 N. W. 656); Home Life Ins. Co. v. Elwell, 111 Mich. 689 (70 N. W. 334).

We think these cases are conclusive of the present.

The judgment must be affirmed.

The other Justices concurred.


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    ROULEAU v. STRADLEY.
    Lost Deed — Evidence—Appeal.
    Evidence reviewed, and held to warrant a decree establishing a lost deed.
    Appeal from Chippewa; Steere, J.
    Submitted April 17, 1901.
    Decided May 21, 1901.
    Bill by Joseph Rouleau against John G. Stradley, administrator of the estate of Alice J. Rouleau, deceased, and others, to quiet title. From a decree for complainant, defendants appeal.
    Affirmed.

      Holden & Holden, for complainant.

      Warner & Sullivan, for defendants.
   Long, J.

This bill is filed to quiet title. The complainant was the husband of Alice J. Rouleau, deceased. Defendant Stradley is administrator of the estate of Alice-J. Rouleau, and the other defendants are the children of complainant and Alice J. Rouleau. The complainant’s claim is that he was the owner by purchase of two certain pieces of property in Sault Ste. Marie in the year 1895;, that he deeded the same to his wife, as his health was-greatly impaired, and he desired her to have the benefit of the whole property if he should not survive her; that afterwards, in consultation with his attorney, he was-advised that he would be stripped of all his property if he survived his wife, and that it was agreed between himself and wife that she should make quitclaim deeds back to-him, which she did; that two deeds were made, — a deed', of each piece, — and acknowledged and delivered to him by his wife; that he put them away unrecorded; and that after the death of his wife he was unable to find them, as they either had been surreptitiously taken away or had become lost. The defendants claimed that the deed given by the complainant to his wife was to defraud creditors, and that no other deeds were ever made to complainant by his wife, as claimed. Some considerable testimony was taken on the hearing in open court, and the court found that quitclaim deeds had been given, as claimed by complainant, and entered a decree quieting title, as prayed in the bill, in him. Defendants appeal.

The complainant introduced a witness by name of Rains, a nephew of the deceased wife, who testified that he was reading law with Mr. Cady at Sault Ste. Marie in the spring of 1896, and upon two occasions saw the quitclaim, deeds in the hands of complainant; that he knew the property described in the deeds, and examined the deeds; that they were from Alice J. Rouleau to the complainant; that they were acknowledged before M. F. McDonald, notary public, a lawyer of that town, and witnessed by him and Bertha Rouleau, a daughter of the parties. Mr. McDonald was called as a witness, and testified that he drew the deeds and witnessed their execution. The defendants introduced some evidence showing circumstances which they claim made it apparent that the deeds were never made as claimed by these witnesses. It would be of no interest to the parties litigant or the profession to set out the testimony here upon either side of the controversy, as, from a reading of the whole record, we are satisfied that the complainant has established his claim by a preponderance of the testimony. Any other finding would convict the complainant, Mr. McDonald, and Mr. Rains of willful and deliberate perjury, and we cannot arrive at that conclusion from a reading of the whole record.

The decree below must be affirmed, with costs to complainant.

The other Justices concurred.