text:
    HOEFT v. KOCK.
    Corporations — Sale of Stock — Misrepresentations.
    The signing by an officer of a corporation of a certificate of stock reciting that the capital stock is 825,000, when it was in fact $50,000, does not render him responsible to the purchaser of the stock for misrepresentations as to the amount of stock and its value, made by, directors to induce the sale, where it does not appear that he knew of such representations.
    Error to Wayne; Donovan, J.
    Submitted February 8, 1899.
    Decided March 6, 1899.
    Case by August Hoeft against Jacob Kock, Charles Uelsmann, Gustave Rogge, and Albert Clemens, for alleged misrepresentations in the sale of corporate stock. From . a judgment for plaintiff, defendants Kock and tTelsmann bring error.
    Reversed.

      Thomas Hislop, for appellants.

      Walter Barlow, for appellee.
   Moore, J.

The plaintiff brought suit against the defendants to recover from them a subscription of $2,000 to the capital stock of the American Brass & Metal Works, claimed by him to have been obtained by fraudulent representations made to him as to the value of the stock, the amount of the stock of the company, and the profitableness of the business. The plaintiff obtained a judgment, and from that judgment defendants Kock and . Uelsmann have appealed. It is their claim that, giving the fullest effect to the testimony offered upon the part of the plaintiff, he has not established a cause of action against the appellants, and a verdict should have been directed in their favor.

The record shows that in May, 1894, plaintiff bought 200 shares of stock, for which he paid $2,000. There is not a word of testimony in the record indicating that defendant TJelsmann made any representations to plaintiff, or authorized any person to make them for him, which influenced the plaintiff in the purchase of stock. It is urged that, as Mr. TJelsmann signed the certificate of stock, that fact, taken in connection with the other testimony, and the further fact that the certificate recites that the capital stock of the company is $25,000, when it is claimed that the capital stock was $50,000, makes him liable. • This contention has no force, because it is not shown Mr. TJelsmann made any representations to the plaintiff, or knew of any representations made by any one else, either as to the amount of the stock or its value. Upon the record as it stood, a verdict should have been directed m favor of Mr. Uelsmann.

The plaintiff obtained his stock in the company, in May, 1894, after going through the plant, which was then a going concern, employing 80 to 100 men. February 22, 1895, he was present at a stockholders’ meeting, and was elected a director of the company, and afterwards participated in its management. He’ heard read the annual reports of the company, voted to secure loans and give mortgages, and remained with the company until September, 1896, when its affairs were such the company passed into the hands of a receiver. '

It is claimed that Mr. Kock represented to the plaintiff that the affairs of the company were in good shape and that it was making money, and that his representations amounted to a fraud. Mr. Kock denied he made any representations whatever, or-authorized any to be made, to induce the plaintiff to purchase the stock. For the purposes of this case it must be assumed he did make the representations claimed. What is there in the case to show that in May, 1894, the affairs-of the company were not as represented? The record shows the business first started as a small, private enterprise. Then a company was organized with $5,000 of capital stock. Tbe business continued to grow, and the capital was increased to $25,-000, all paid. Before plaintiff bought his stock, a resolution was adopted to increase the stock'to $50,000. The record is silent as to the value of this stock in May, 1894. It does show that in 1892 one of the witnesses paid 12 per cent, premium for his stock. It also shows, during the stringent times following 1893, the need of more than $25,000 of paid-up capital to do the business they were doing. The fact the company used to get 4 months’ credit in which to pay its bills for brass, when later it was required to pay them within 30 days, and was obliged to pay from 1 to 7 cents a pound more for brass, without •obtaining corresponding advances in the price of products, and the ever-increasing difficulty in making collections, will go far to account for the subsequent failure of the business.

It is said the falsity of the statements made by Mr. Nock is shown by the annual reports, and counsel says the report for January, 1892,- shows that the debts of the company were $10,433, and credits $4,480, and that of January, 1894, shows that the debts were $19,733, and the credits $8,629, and that this demonstrates that the business was . not successful. This argument omits some very important items in the annual statements. In the statement for January, 1892, it is stated that the capital stock paid in was $20,750, and the value of the personal property was $29,180, while the January statement in 1894 shows that the capital stock paid in was $31,820, and the amount of the personal estate was $47,503. The record does not disclose that what Mr. Block said to Mr. Hoeft was not true, and a verdict should have been directed in his favor.

Judgment is reversed, and new trial ordered.

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


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    WEBSTER v. WARNER.
    Homestead — Alienation—Signature of Wife — Land Contract —Specific Performance.
    Complainant, by agreement with his mother and stepfather, took a deed of an undivided half of the homestead, which the latter owned, and, in consideration, assumed certain indebtedness outstanding against him, securing payment by a mortgage on the premises. At the same time a contract was executed whereby complainant, in consideration of his providing his- parents with support during their lives, should receive at their death the other undivided half of the homestead. While the deed was properly executed, the contract was not signed by complainant’s mother. Held, that the wife’s signing the deed did not render the contract for a conveyance of an undivided half of the homestead valid without her signature, and that the contract, though fully performed by complainant, could not be specifically enforced against the heirs.
    Appeal from Washtenaw; Kinne, J.
    Submitted January 25, 1899.
    Decided March 6, 1899.
    Bill by William I. Webster against Sarah A. Warner and others for the specific performance of a land contract. From a decree for complainant, defendants appeal.
    Reversed.

      Randall & Jones, for complainant.

      E. B. Norris, for defendants.
   Hooker, J.

In 1877, James Waugh and wife resided on a 40-acre farm, worth about $1,500, owned by the former. His stepson, the complainant, in response to a letter requesting it, had come from Ingham county, where he resided, to the home of Waugh, and the parties named had agreed upon an arrangement by which Webster was to receive a deed of the undivided one-half of the 40 acres, and to give back to James Waugh a mortgage thereon, to secure the payment by Webster of certain outstanding indebtedness against James Waugh. A written contract was to be made, covering the other undivided half of the farm, by which Webster was to agree to manage and work the same, and to give the crop to Waugh and his wife, and the survivor of them, during life, to pay taxes, and keep the place in repair; and, at the death of the survivor, Webster was to receive from the “heirs, executors, and administrators ” of Waugh a deed conveying an unincumbered title in fee simple. Accordingly, on the 27th day of August, the deed and mortgage were made and executed, and a land contract in accordance with the above arrangement was made and signed by Waugh, but not by his wife, though she was mentioned as a party therein. She executed the deed. Webster entered upon the premises, and'occupied the same with Waugh and his wife, and faithfully performed his contract. Waugh died some time before his wife. Both being dead, Webster filed the bill in this cause against the heirs of Waugh, to compel specific performance of the contract. The defendants raise the point that the contract was void, because not signed by Waugh’s wife, the place being a homestead at the time the contract was made. In the circuit court the relief prayed was granted, and the defendants have appealed.

The principal question in the case grows out of 2 How. Stat. § 7722, and Const. Mich. art. 16, § 2. These have been before the court in many cases, and it has been uniformly held that a husband is powerless to convey a valid title to any interest in a homestead, without the signature of his wife, and that instruments made by the husband which, but for these provisions, would be valid, are absolutely void. Phillips v. Stauch, 20 Mich. 369; Hall v. Loomis, 63 Mich. 709; Engle v. White, 104 Mich. 15; Gadsby v. Monroe, 115 Mich. 282. The case of Ring v. Burt, 17 Mich. 465 (97 Am. Dec. 200), applies the rule to a case where a husband made a verbal contract by which he agreed that his homestead should be conveyed to another in consideration of the support of himself and wife, notwithstanding the fact that she assented to the contract, and participated in the enjoyment of the consideration until the death of her husband, when she refused support and claimed the land. Counsel for complainant cite the case of Whitmore v. Hay, 85 Wis. 240 (39 Am. St. Rep. 838), as an authority warranting the relief prayed for; but we think our own decisions must . rule the case. See Gadsby v. Monroe, supra; Showers v. Robinson, 43 Mich. 502, 512; Robinson v. Baker, 47 Mich. 622; Riggs v. Sterling, 60 Mich. 652 (1 Am. St. Rep. 554). The strong equities in this case induce regret that we cannot give the complainant the relief prayed. We have no doubt that Mrs. Waugh, who was complainant’s mother, supposed that the contract was valid, but it was clearly void; not only as to the wife, but the husband as well, and even as to the heirs, as was held in Sherrid v. Southwick, 43 Mich. 519.

The court below held that the agreement was one transaction, and that Mrs. Waugh’s signature to the deed was a sufficient compliance with section 7722. We cannot concur in this view. We are constrained to reverse the decree, and dismiss the bill, with costs of both courts. A decree will be entered in conformity to this opinion.

The other Justices concurred.


author: Montgomery, J.

text:
    CANDLER v. MITCHELL.
    1. Trust Deed — Possession—Control of Premises.
    Where the owner of real property executes a trust deed thereof to secure creditors, and thereafter joins with the creditors in a request to the trustee to permit a certain person to occupy the premises, he thereby places the trustee in possession, and the trustee becomes the landlord of such person.
    2. Landlord and Tenant — Notice to Quit — Option.
    A notice to quit unless the tenant shall immediately pay in advance a stated rental is not insufficient, as it gives no option which may be exercised after the expiration of the time fixed by the notice. D’Arcy v. Martyn, 63 Mich. 602, distinguished.
    3. Same — Service by Mail — Sufficiency.
    Service by mail of a notice to quit is sufficient, where the tenant receives it in time.
    Error to Wayne;. Frazer, J.
    Submitted January 26, 1899.
    Decided March 6, 1899.
    Summary proceedings by George Y. Candler, as trustee, against William Mitchell, to recover the possession of a house. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Bacon & Palmer, for appellant.

      Sloman & Groesbeck, for appellee.
   Montgomery, J.

This is a summary proceeding to recover possession of a house in the city of Detroit known as the “Reading House.” It appears that in April, 1896, Richard W. Reading, the owner, was indebted to various parties for labor and material furnished in building the house, and on that date gave a trust deed of the property to plaintiff, as trustee for these creditors, of whom defendant was one. On the 1st of September, 1896, the creditors united in the following request to plaintiff:

“Detroit, Mich., September 1, 1896.
“Mr. George Y. Candler, Trustee.
“ Dear Sir: We, the undersigned creditors of R. W. Reading for labor and material furnished in the construction of the Reading House, on Wabash avenue, hereby request you to allow William Mitchell to occupy said house; it being understood that during the occupancy of said house by Mitchell the sum of $15 per month will be deducted from the amount now due William Mitchell from R. W. Reading. And it is agreed by said William Mitchell that he will vacate said house at any time, upon 30 days’ notice from trustee.”

This request or agreement was signed by all the secured creditors, including the defendant, and by the owner of the property, Mr. Reading. There was also underwritten an agreement, signed by defendant, as follows:

“ I hereby agree to do all necessary repairs and fix leaks in mason work (in cellar) in and around the building and cellar; and I also agree to the stipulation mentioned above, and agree to leave the premises in as good condition as when I entered the house.
“William Mitchell.” .

The defendant did not vacate the premises within the time prescribed, and this proceeding was thereupon instituted. The circuit judge directed a verdict for the plaintiff, and defendant brings error.

It is contended that the trust deed is no more, in effect, than a mortgage, and gave no right to the trustee to occupy the premises. This is doubtless true, in the absence of any other agreement; but it is equally true that it is competent for a mortgagor to' place the mortgagee in possession, or assent to the possession, which the mortgagee may defend or assert as against those in privity with him. The inference is clear that this is what was intended in this case. The owner joins in a request to the plaintiff that defendant be allowed to occupy the premises, and in pursuance of that request the defendant went into possession. The plaintiff became his landlord.

It is now contended that the notice was insufficient, as . it gave defendant an option to vacate or do something else; citing D’Arcy v. Martyn, 63 Mich. 602. That case is clearly distinguishable from the present. The notice allowed the tenant the option of remaining upon paying rent, and there had been acquiescence in his occupancy, which the court said seems to have created a new tenancy. The notice did not require, as a condition to future occupancy, the payment of rent-in advance. In the present case the notice was to vacate, unless the tenant desired to remain on other terms, which terms must, of necessity, be determined on at once, and not after the lapse of the time fixed by'the notice. There was no option which the tenant had the privilege of exercising at the time when he was required to leave by the terms of the notice, as was the case in D’Arcy v. Martyn.

It is contended that the service by mail was insufficient; but the proofs show that the service was actually received as early as May 14th by defendant.

The judgment is affirmed.

The other Justices concurred.

       The notice, which was dated May 13, "1897, read: “Unless you wish to remain in said house by paying $15 per month, in advance, beginning from the 15th of May, 1897, you will please vacate the same within one month from date.”


text:
    SKINNER v. MICHIGAN HOOP CO.
    1. Sale — Fraudulent Purchase — Replevin—Return of Consideration.
    Whether plaintiff, in replevin for goods fraudulently purchased, must tender back negotiable paper, past due, given for the goods, or whether it is sufficient if he show at the trial that the paper has not been negotiated by him, — qucere.
    2. Same — After-Conceived Fraud — Goods in Transit.
    A sale of goods is not rendered fraudulent, so as to entitle the seller to rescind, by the buyer’s conceiving the intention, while the goods are in transit, of not paying for them.
    3. Same — Solvency of Buyer — Representations.
    A letter ordering goods to be shipped in car lots, for which the writer agrees to accept 30-day drafts for the cost of filling the order, and to send check for the balance of the price when the goods are unloaded, is not a representation that the writer is solvent.
    4. Same — Rescission.
    A sale may be rescinded, and the property recovered, where the buyer, at the time of purchasing, was insolvent or in failing circumstances, and did not intend to pay for the goods, or had no reasonable expectation of doing so, and fraudulently misrepresented or concealed the facts.
    Error to Saginaw; Snow, J.
    Submitted January 25, 1899.
    Decided March 6, 1899..
    Replevin by Myron Skinner against the Michigan Hoop Oonipany and Melvin O. Robinson. From a judgment for plaintiff, defendants bring error.
    Reversed.

      Trask & Smith, for appellants.

      Snow & Snow (C. H. Gage, of counsel), for appellee.
   Hooker, J.

In August, 1890, the Michigan Hoop ■Company, a corporation doing business at Saginaw, agreed to sell, upon commission, all hoops consigned to it by the plaintiff. The parties dealt for a time under this agreement. On February 11, 1897, the defendant wrote the following letter to the plaintiff:

“Saginaw, Mich., February 11,1897.
“Myron Skinner,
“West Point, Ky.
“Dear Sir: We have arranged for storage at Detroit, and can take a good many hoops, if you can buy them. We do not want many syrup hoops, but can take one or two cars. We want mostly pork and tierce hoops. We will pay the following prices: Syrups, $7.00; pork, $7.00; tierce, $8.00 per M.; flour hoops, $4.00. You make 30-day drafts for what you will have to pay for the hoops, and, as soon as the hoops are unloaded, we will send you check for the balance. Bill all cars via C. H. & D. and M. C., and send us shipping receipts for each car promptly. Load straight car loads as much as possible; however, you can load some mixed car loads if you wish. This will give you a chance to do some business, if you get out and hustle. There are a good . many hoops being made now, and the market is dull, but we think there will be a good trade during the summer. I inclose a letter, which you can show .to people you wish to give drafts, which will help you some. Be sure and make all your billing as directed. Yours truly,
“Michigan Hoop Co.,
“By E. W. Tbavee, Sec’y.”

This paper accompanied the letter, and read as follows, viz.:

“ Feb. 11, A. D. 1897.
“To Whom it May Concern:
“We will accept 30-day drafts drawn on us by M. Skinner, and made in payment for hoops.
“Michigan Hoop Co.,
“By E. W. Teavee, Sec’y.”

The plaintiff testified to shipping several cars under this arrangement, and drew upon the defendant, but the drafts were not paid, and, upon learning that the defendant had failed, he replevied one car load of the hoops in Detroit, He replevied three car loads in Gladwin, but, being unable to give tbe necessary bond, they were left in the custody of a transferee of the defendant. • He subsequently replevied three car loads in Saginaw. These last are involved in this action, and were worth $544. The defendant Bobinson is cashier of a bank, and held a mortgage on the hoops and other property, in trust for certain creditors. It seems to be conceded that prior to February 11, 1897, the plaintiff had drawn, and the hoop company had paid, drafts to an amount exceeding $11,000. The defendant claims that there was due to it upon these about $8,000 on February 11th. This the plaintiff denied, claiming that from February, 1891, to a short time before February 11, 1897, he had bought hoops for the defendant in the capacity of agent, and that the $8,000 was accounted for by losses through fire, theft, etc. Prior to the replevin of the hoops, and subsequent to February 11th, the plaintiff had drawn six drafts upon the hoop company. Four of these drafts were accepted by the hoop company, but were not paid by it when they matured. There was testimony tending to show that the defendant was hopelessly insolvent.

It is claimed that the court erred in refusing to direct a verdict for the defendants, inasmuch as it appeared that the plaintiff had not tendered back the unpaid drafts at the time of rescinding the contract. It was shown that the drafts were worthless, and that the plaintiff had at least three, if not all, of the four accepted drafts with him at the time of the trial, and that none of them had been paid, except what he paid. These were filed with the court before judgment, one only — for $87 — -of the accepted drafts not being produced and filed. This was some days after the trial. There were five car loads of the hoops which plaintiff did not succeed in replevying. The letter quoted shows the nature of the contract, and that the parties acted under it is undisputed. Several lots of hoops were shipped, and several drafts were drawn. The plain intent of the letter was that settlements should follow shipments, upon which money previously advanced should apply. Therefore, if we were able to ascertain the dates of shipment of the lots replevied, we might be able to determine whether the $87 draft should or should not be treated as a payment upon such shipment. If not, we should think it unnecessary to show that such draft had been tendered or produced, because not a part of the consideration for the hoops replevied. But if, on the contrary, it was to be applied upon such shipment, and at the time of the trial was in the hands of a bona fide holder for value, the plaintiff would fail for not putting the defendant in statu quo. The acceptance would then be an outstanding obligation, against which the defendant would have no defense. But if, like the others, it was in the hands of, and owned by, the plaintiff, its production upon the trial and deposit with the court would protect the defendant, and it would be governed by the same rule as though it were a promissory note. In the case of Nichols v. Michael, 23 N. Y. 273 (80 Am. Dec. 259), it was held that restoration of such a note was unnecessary, because, the moment the contract was rescinded, the note in the hands of the plaintiff became invalid and worthless. It was held in such . case that the surrender of the note to the court upon the trial would be sufficient.

Several cases of our own seem to recognize the rule of the New York case. Dayton v. Monroe, 47 Mich. 193, was the case of a note, though the action differed in its nature. The case of Waterbury v. Andrews, 67 Mich. 287, holds that a void note need not be restored. In Stubly v. Beachboard, 68 Mich. 414, it was held that the note of a third person need not be surrendered before suit; and in Pangborn v. Ruemenapp, 74 Mich. 572, a tender of a worthless note upon the trial was held sufficient. "While we think that such surrender might be necessary, either at the time of rescission, or, at all events, upon the trial, in the case of negotiable paper of the defendant, not due, it would seem to be unnecessary where it was overdue, provided it should be made to appear that it was still held and owned by the payee, and not by a bona fide purchaser for value. Sisson v. Hill, 18 R. I. 212 (21 L. R. A. 206). We are unable'to tell, from this record, whether the plaintiff had all of the accepted drafts or not. He says in his testimony that he had these drafts in his pocket at the trial, but the brief of his counsel indicates that one had been negotiated, and was still outstanding. The case need not turn upon this point, however.

The judge charged the jury that:

• “If, after ordering the goods, and while* they were in transit, the defendant hoop company conceived the intention of not paying for the property, and took the property at Detroit with the design to transfer it to other creditors, and not pay the plaintiff for the goods, and that intention continued up to the time of the seizure of the goods by the plaintiff on his writ, the plaintiff would be entitled to rescind the sale and recover the property.”

We are of the opinion that this extends the rule. The delivery was complete when the hoops were put in the hands of the carrier, and the title then passed to the defendant, and would not be devested by a subsequent change of purpose. This question has been recently decided in Iowa in the case of Starr v. Stevenson, 91 Iowa, 684. It is there pointed out that the supposed analogy between “rescission” and “stoppage in transitu” does not exist.

' We are also of the opinion that the court should not have said that:

“If, at the time of making the contract, the buyers asserted themselves to be solvent, and were in fact insolvent, * * * the intention not to pay will be presumed from their condition; and a purchaser’s knowledge that he will not be able to pay for goods bought on credit is equivalent to an intention not to pay.”

The letter should not have been construed to contain a representation of solvency.

The court also instructed the jury that:

“ Where a buyer is insolvent at the time of making the contract of sale, or is in failing circumstances, and conceived the intention of not paying for the goods, or had no reasonable expectation that he could do so, and fraudulently concealed or misrepresented the facts, the sale may be rescinded by the seller, and the property recovered.”

We think there was no error in this. Belding v. Frankland, 41 Am. Rep. 633 (76 Tenn. 67), note; Davis v. Stewart, 8 Fed. 803.

In Le Grand v. Bank, 81 Ala. 133 (60 Am. Rep. 140), the rule is laid down that, to authorize disaffirmance of a sale, the concurrence of three facts must be shown:

1. The purchaser must have been insolvent, or in failing circumstances.
3. He must have had at the time a preconceived intention not to pay for the goods, or no reasonable expectation of being able to do so.
3. There must have been on his part an intentional concealment of these facts, or a fraudulent representation in reference to them.

Without saying that a man must always be insolvent, or in failing circumstances, to authorize rescission, we think the charge complained of was in accord with the rule there laid down, which was applicable to the facts in this case.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Long, J.

text:
    WEBB v. FEATHER’S ESTATE.
    1. Triar — Examination op Witnesses — Leading Questions.
    The matter of permitting leading questions is entirely within the discretion of the trial court.

      2. Married Women — Separate Estate — Promissory Note — Evidence.
    Evidence that deceased, who owned the farm on which she lived with her husband, employed and paid the help, kept the accounts, and received the money for the products, is admissible in proceedings to charge the estate upon a note executed by her jointly with her husband for money borrowed.
    3. Same.
    A claimant against the estate of a married woman upon a note signed by her and her husband jointly may show that he told the husband, who negotiated the loan represented by the note, and who acted in all transactions as her agent, that he would not let him have the money, but would loan it to his wife.
    4. Same.
    There is not a total lack of evidence to show that money loaned, for which a married woman, since deceased, executed a note, was for the benefit of her separate estate, where the loan was negotiated by her husband, who acted as her general agent, and she was actively engaged in the conduct of a farm, handling the money, keeping accounts, and paying the help.
    Error to Washtenaw; Kinne, J.
    Submitted January-26, 1899.
    Decided March 6, 1899.
    Charles M. Webb presented a claim against the estate of Caroline Feather, deceased. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for claimant, defendant brings error.
    Affirmed.

      Frank E. Jones (Seth C. Randall, of counsel), for appellant.

      M. J. Lehman and Arthur Brown, for appellee.
   Long, J.

This appeal from the decision of the commissioners on claims was tried in the Washtenaw circuit court, where the claimant had judgment for the amount of the note in controversy. The note is for $250, signed by the deceased and her husband, Joseph Feather. The claim of the contestant is that the note was signed by the wife as surety for her husband; while the claimant contends that the. note was for money going to the deceased for her separate estate. It appeared on the trial that the deceased had a farm of 72- acres, and that she and her husband owned jointly another farm of 80 acres some 2 miles distant. It was shown by the claimant that the deceased carried on her own business, hired and paid the help on the farm, sold the crops, and took into possession the moneys therefor. The claimant testified that, at the time the note in question was given, Mr. Feather called upon him for the loan, and that he refused to let him have-the money, but told him he would loan it to Mrs. Feather if she would sign the note; that Mr. Feather returned shortly with the note signed by Mrs. Feather, and the money was paid over to him. There is no controversy but that Mrs. Feather signed the note. • She died in 1890. The questions involved were submitted to the jury under a very fair charge, which correctly stated the law.

The contestant claims:

1. That there were many leading questions asked by counsel for claimant, and permitted by the court.- While these questions were somewhat leading, they were matters entirely within the discretion of the trial court.

2. It appears that, on the first examination of the claimant, he testified that Mr. Feather came to him, and wanted to borrow the money, and that he told him that, if he would have his wife sign the note, he would let him have it, and that it was upon that condition he let him , have it. H¿ was afterwards recalled, and testified that, when Mr. Feather came to him for the money, he would not let him have it, but told him, if Mrs. Feather would sign the note, he would let her have it, and that Feather afterwards came with the note signed by her. On his cross-examination he testified that he was told by his counsel that he had made a mistake about it, and that he thereupon was called to the stand to correct it. Some of the leading questions complained of refer to the testimony when claimant was recalled to make the explanations. The whole matter was properly before.the jury, and no error was committed in the questions asked, or in permitting the explanations.- It was .a matter entirely within the discretion of the court.

3. Some contention is made that the court was in error in permitting counsel for claimant to ask Lizzie Feather the following question: “During the time your father and Mrs. Feather lived together, you may state who, if anybody, kept an account of all the financial transactions of the farm.” She answered, “Mrs. Feather did.” She also testified that Mrs. Feather employed and paid the help on the farm, kept an account book; that her father, when he sold the products of the farm, handed the money to Mrs. Feather; and that this continued all the time they lived together. We think this was a proper inquiry.

We think, also, that the court was not in error in permitting the claimant to show the circumstances under which he let Mr. Feather have the money. It was not a fact within the knowledge of the deceased; but the facts stated by the claimant, coupled with the fact shown that Mr. Feather acted as the agent of his wife in the transaction of all her business, had a tendency to show that the money borrowed was for the benefit and use of the deceased.

4. It is contended that there was no testimony tending to show that the money was borrowed for the use and benefit of the deceased. There is no direct testimony upon this point, but, as we have said, the circumstances under which it was borrowed, the fact that Mr. Feather was the general agent of his wife in all her business, that she handled all the money, paid the help upon the farm, that it was her farm upon which they lived, and the stock and tools were kept there, and that the business was transacted from there, all had a tendency to show what was done with the money borrowed, and that it was for her use. We are not able to say that there was a total lack of evidence that the money was had for the use of Mrs. Feather. The case falls within the ruling of this court in Feather v. Feather’s Estate, 116 Mich. 384.

The judgment must be affirmed.

The other Justices concurred.


text:
    STONE v. DOWLING.
    1. Garnishment — Indebtedness—Unaccepted Order.
    The drawee in an order for money is not indebted to the payee, so as to render the amount liable to garnishment by the latter’s creditors, before a written acceptance of the order.
    2. Same — Partnership Credit.
    A demand due to a partnership cannot be garnished in a suit against one partner alone.
    3. Same — Proceedings in Justice’s Court — Claimant’s Notice.
    Under 3 How. Stat. § 8057a, providing that, in garnishment in justice’s court, when the garnishee discloses that a person other than defendant claims the fund, “the garnishee may deliver such money * * * to the justice, who shall cause to be served on such claimant a written notice,” and that “after the service of such notice, and the payment * * * to the justice of the money, * * * the garnishee shall be discharged from all liability * * * in respect to the money * * * so paid,” the payment of the money to the justice is a condition precedent to his right to issue the claimant’s notice.
    4. Same — Notice to Partnership.
    Where the fund is claimed by a partnership, service' of the claimant’s notice on one of the partners only is insufficient.
    Appeal from Wayne; Lillibridge, J.
    Submitted January 26, 1899.
    Decided March 6, 1899.

      Bill by Richard Stone and Ransom E. Hall against Thomas W. Dowling, George S. Trevor, and Samuel Ellsworth, to enforce a mechanic’s lien. From a decree for complainants, defendant Trevor appeals.
    Affirmed.

      Henry B. Graves, for complainants.

      Trevor & Trevor, for appellant.
   Long, J.

This bill is filed to enforce a mechanic’s lien for labor and materials furnished in painting a house in course of construction by defendant Dowling, as contractor for defendant Trevor, the owner of the property. Complainants were subcontractors under Dowling. Defendant Ellsworth was another lien claimant, whose claim is settled, and is out of the case. Complainants were partners, and agreed with Dowling, the contractor, to paint the house' for $30. They did so, both working on the job. They were never paid, but Stone was given an order for $30 on Walter M. Trevor, the agent of defendant Trevor. The order was never accepted in writing, and has never been paid. Instead of paying the order, a suit was instituted before a justice of the peace by the firm of Trevor & Trevor (not defendant Trevor) upon a claim held by them for collection against Stone alone, and Walter M; Trevor was garnished in that action. After judgment against Stone in that action, a judgment was rendered against Trevor as garnishee. Complainants ignored these garnishment proceedings, filed their bill to enforce the lien, and, in the court below, recovered a decree for the amount of their claim. From this decree, the defendant Trevor’appeals.

Ownership of the property, and the requisite steps to file and enforce a lien, are admitted. The partnership between Stone and Hall is not denied, but is fully proved. The claim of lien filed avers a partnership, and the ownership of the debt by the partnership. The bill is filed by the complainants as partners, and both were sworn on the trial as witnesses. It was shown that the debt due them was a joint one, due them as partners. The defense is that the garnishment proceedings held the fund as moneys belonging to Stone, for the reason that Dowling had given Stone an order on Trevor for the money; but, as has been seen, the order 'was never accepted in writing by Trevor. He therefore never became indebted to Stone. Upham v. Clute, 105 Mich. 850. But, aside from this, a demand due to Stone and Hall jointly could not be garnished in a suit against Stone alone. Kennedy v. McLellan, 76 Mich. 598.

It is the contention, however, of counsel for defendant Trevor, that, in the suit in justice’s court, Trevor was served with summons in garnishment, and made disclosure on December 10, 1897, that $30 was due Stone on an order which he had, and that the same was claimed by Stone and Hall; that on the same day, December 10th, the justice caused a claimant’s notice to be issued to Stone and Hall, and the same was served on Stone, and was made returnable December 31st; that defendant Trevor proceeded in justice’s court under, section 8057a, 3 How. Stat., and made his disclosure, setting up all the facts as above stated. The above statute provides that;

“ The garnishee may deliver such money * * * to the justice, who shall cause to be served on such claimant a written notice. * * * After the service of such notice, and the payment or delivery to the justice of the money, * * * as above provided, the garnishee shall be discharged from all liability to any person in respect to the money * * * so paid or delivered.”

It is the claim of counsel that defendant Trevor had the right to rely upon this statute; and, if the complainants questioned the validity of the statute or the garnishable nature of the fund, their remedy was in raising the question in justice’s court; and not having done that, and that judgment not having been appealed from, it remains final, and as to this fund it is res adjudicatei.

It is also claimed by counsel for the defendant that the complainants appeared in the justice’s court in said action. This is denied; and, from the return made by the justice, we think it is clear that they did not appear, but, under the advice of counsel, properly remained away from the justice’s court.

We think the judgment in the justice’s court against the garnishee cannot be upheld. The proceedings after -disclosure are wholly invalid. The claimant’s notice was issued December 10th, and served and returned before the garnishee paid any money into court. Section 8057a, 3 How. Stat., requires the delivery of the money tq the justice as a condition precedent to the issue of the claimant’s notice. This is necessary, as no money judgment can be rendered against the claimant. Pecard v. Home, 91 Mich. 346.

But, aside from this, there was never any service of notice on Hall. His rights to the fund could not be cut . off by a suit against Stone and service of claimant’s notice on Stone alone.

As we have found that the complainants did not appear in justice’s court, the judgment of the justice cannot be held to be res adjudicata.

The decree must be affirmed, with costs.

The other Justices concurred.


text:
    LUDINGTON WATER-SUPPLY CO. v. CITY OF LUDINGTON.
    1. Water Companies — Legal Existence — Pleading—General Issue.
    The objection, that a water-supply company, organized under the provisions of 1 How. Stat. § 3110 et seq., to furnish water to a city, has no legal existence as a corporation, because its formation was never authorized by resolution of the common council, as required by section 3110, cannot be raised to defeat an action by it, after plea of the general issue; 2 How. Stat. § 8140, providing that a corporation plaintiff need not prove its existence unless defendant denies the same under his plea.
    2. Same — Public Contract — Authority oe Common Council— Estoppel.
    A city which, for a number of years, has acted under a contract made by its council with a water-supply company, is estopped from denying the authority of that body to enter into the contract, on the ground that there is no record of the adop-. tion of the resolution contemplated by 1 How. Stat. § 3110, declaring it expedient to have waterworks constructed, but inexpedient that the city should construct them, where the contract recites the passage of such resolution, and the company has made large expenditures on the strength of the contract.
    3. Same — Exemption prom Taxation — What Constitutes.
    An agreement by a city to pay the taxes assessed against the property of a water-supply company, in excess of a certain amount, as a part of the consideration for a supply of water, is not invalid as an exemption of property from taxation.
    4. Same — Monopolies.
    Neither is such agreement invalid on the ground that it gives the particular company an advantage over similar companies that might wish to do business in the city, and tends, therefore, to create a monopoly.
    5. Municipal Corporations — Contractual Powers — Limitations.
    A municipal contract for a water supply, valid when made, cannot be impaired by subsequent legislation limiting the taxing power of the municipality.

      6. Same.
    A charter provision that, for the purpose of paying all liabilities of the city, the council “may raise annually, by tax, * * * such sum as they may deem 'necessary, not exceeding one per cent, on the valuation,” etc., does not prohibit the incurring of such a liability as will accrue annually from performance of the contract creating it, merely because the aggregate of the accruals will exceed the one per cent, limit.
    7. Same.
    A municipal contract for future services, to be paid for as rendered, is not an “incurring of indebtedness,” within a charter provision limiting the authority of the council in such respect.
    8. Same — Investigation oe Claims — Premature Suit — Presumptions.
    Where two claims under one contract were presented to a city at the same time, and one of them was. acted upon by the council, it will be presumed in an action on the other claim, where there is no evidence to the contrary, that the council had a reasonable time for investigating the claim in suit, and that, therefore, the action is not premature because of the reservation of such right to the council in the charter.
    Case made from Mason; McMahon, J.
    Submitted February 7, 1899.
    Decided March 6, 1899.

      Assumpsit by the Ludington Water-Supply Company against the city of Ludington for water rentals and for taxes paid under protest. Plaintiff had judgment, and defendant assigns error.
    Affirmed.

      Henry C. Hutton, City Attorney (Fitch & Reek, of counsel), for appellant.

      Charles G. Wing (J. W. Champlin, of counsel), for appellee.
   Montgomery, J.

The plaintiff is a corporation organized in 1881, under the provisions of chapter 84, 1 How. Stat. It has maintained its organization since that time, and has built and continuously operated a system of waterworks since its organization in the defendant city. The defendant city was first incorporated in the year 1873, under a special charter, received a new charter in 1893, and passed under the general law of 1895, by taking no' action after that act went into operation. On the 10th of August, 1882, the plaintiff had constructed a system of waterworks in the defendant city, and on that day a contract was entered into between the parties. The contract provided that the plaintiff company should have the right to construct and maintain a system of waterworks in the streets and alleys of the city, and contained the following recital:

“Whereas, the common council of said city hath, by resolution, declared that it is expedient to have constructed in said city waterworks for the purpose of supplying said city and the inhabitants thereof with water, but that it is inexpedient for said city, under the power granted in its charter, to build such works; and whereas, the said water-supply company, under the authority granted to them by the common council of said city, hath gone on and erected such works, and now has the same in operation in said city: Therefore, the said party of the first part,” etc.

The contract, by its terms, was to remain in force for a period of 30 years from the 1st day of July, 1882. The city was to use 35 hydrants for fire protection, and to pay the company for them $80 per hydrant, and also to pay at the rate of $80 each for such watering troughs as the city might establish and maintain. The company agreed to complete its works within a certain time, to obtain sufficient water to supply the city and inhabitants, to maintain sufficient pressure on its mains for fire protection, etc. Under this contract, the company was permitted to obtain the water which it furnished from the channel of the harbor where the river flowed into Lake Michigan; and, as a matter of fact, it did obtain the water it furnished at that point until after the year 1892. The parties went on under this contract until July 29, 1885, when anew agreement was made between them. The new agreement recited that it was intended to supersede the former agreement between the parties. This last agreement was, by its terms, to be and remain in force until the year 1901. By it the city agreed to pay the company the sum of $80 per hydrant for each of the 40 hydrants then in use, and a like sum for each watering trough in use, to be paid quarterly. It was provided that the company was to furnish, place, and maintain 24 additional hydrants, and one additional watering trough, to be placed as provided in the contract, and the city was to pay for them at the same rate as for the hydrants and watering troughs then already in use. The water furnished by the company was very impure. The people were dissatisfied with the quality of-the water furnished, and from 1890 to 1892 — a period of two years — -there were almost continuous negotiations between the city and the company looking to a large extension of the system, and to the furnishing by the company of pure water.

The main point of serious difference between the parties was the matter of hydrant rentals. They had great difficulty in agreeing on the price. Finally, in 1892, the parties made a new contract, which recited the existence of the contract of 1885, and the time it had to run, the length of pipes then laid, and the number of hydrants and watering troughs in use, and then provided that the company, by the new contract, agreed to lay five miles of standard iron mains, to furnish 14 hydrants to the mile, to be placed as directed by the city, and to keep the whole 138 hydrants provided for in good repair and condition. The company agreed to keep up an ordinary water pressure of 40 pounds to the inch, to be increased to 80 pounds within 10 minutes after notice of a fire. The company further agreed that, as early in the season of 1892 .as possible, it would extend its works into Lake Michigan, and -furnish wholesome water, suitable for drinking, culinary purposes, and family use, and that any failure thereafter on the part of the company' to furnish an abundant supply of water suited to the health of the city should work a forfeiture of the contract. The company agreed to furnish free a supply of water for the city hall, for fire-department displays, for watering troughs then in use, for drinking fountains, and flushing sewers, etc., and then follows:

“Article 5. For the purposes of this contract, it shall be the duty of the second party to pay whatever taxes may be levied upon the following assessed valuations of its property, real and personal: For a period of five years from January 1, 1892, the taxes on an assessed valuation of $10,000; for the second five years on $15,000; for the third five years on $20,000; for the fourth five years on $25,000; for the fifth five years on $30,000; for the sixth five years on $35,000.”

Article 9 of the contract provides as follows:

“For a period of 30 years from January 1, 1892, unless this contract should sooner terminate by purchase, under article 8, or otherwise, said first party agrees to protect said second party in the exercise of all street rights necessary for the proper conduct'of its business; to pass and keep in force -an ordinance prohibiting waste of water and meddling with fire hydrants; to pay all taxes levied against the property of said second party in excess of those mentioned in article 5 above; to pay quarterly $1,250 on the 15th of February, May, August, and November of each year, with interest at 6 per cent, after due, for the fire protection afforded by the 12 miles of main and 138 hydrants above provided for; and further agrees to pay $40 per hydrant, with not less than 14 hydrants to the mile, for all extensions hereafter ordered; and further agrees to enter into a new contract or purchase the works at the end of 30 years.”

The contract contains various other provisions, and, among others, a provision giving the city the right to buy the plant, exercisable at periods of five years, on six months’ notice, and provides that, if the parties do not agree as to price, the price shall be determined by three disinterested persons, not residents or property owners in the city; and the contract fixes the rate to be charged for water to private takers. This contract was duly executed by the mayor and recorder on the part of the city, the common council having authorized them to execute it.

Under this contract, the water-supply company went on, and made the extensions called for by,the contract, and fulfilled its part thereof in every substantial particular. The city also carried out its part of the contract substantially, with these exceptions: There is $1,000 due on the payment for hydrant rentals, due August 15, 1896; $1,560 was due November 15, 1896, which has not been paid; and a balance of $1,040.40 due February 15, 189?. For these items, with interest, the plaintiff brings this suit. Also, in the year 1897 the plaintiff was assessed on its property for taxes at a valuation of $50,000. Notice was served on the city, asking it to take steps to pay or take care of this tax so far as it was levied upon a valuation in excess of $15,000; but the city neglected and refused so to do. The city treasurer insisted upon collecting the whole amount. This tax amounted to the sum of $2,034.49, and it is sought to recover that amount in this suit. The city treasurer levied upon and advertised certain personal property of the company for sale under levy for said tax. The company finally, on February 28, 1898, paid this tax under protest, filing with the treasurer a written protest, setting up the contract aforesaid between the city and company as a reason why the company should not pay said tax. These claims were filed with the city in writing, and presented to the common council for audit and allowance. The claims were not verified by affidavit, nor certified to by any officer of the city; but they were received by the city without objection on that ground, referred to the proper committee, and acted upon. On March 7, 1898, the committee reported on the matter of the claim for taxes to the council, and the council rejected the claim upon its merits. The council did not act upon the claim for rentals until after this suit had been commenced, when the claim was allowed, but has not been paid. The suit was commenced March 12, 1898. The circuit judge found as a fact that the want of verification of the claims was waived by the council by accepting the claims without objection, and acting upon them on their merits. This, so far as waiver is a question of fact.

Until 1897 the property of the company had always been assessed within the contract amount, as a matter of fact, so that there was no claim for the city to pay. Under the contract of 1892, the company expended about $80,000 in extending its works, and procuring water from Lake Michigan. The property of the company, when it was assessed in the year 1897, was worth more than $50,000 at a fair cash valuation. The valuation of property in the city of Ludington for purposes of taxation for the year 1896 was $1,309,980, and the amount of taxes spread on the rolls was $30,644.09 for city purposes, exclusive of school taxes. The valuation of taxable property of the city for 1897 was $1,324,535, and the total amount of taxes levied for city purposes, exclusive of school taxes, was $22,815.60. The valuation of property for taxation in the city for 1895 was $1,325,735. In 1895 the council ordered spread for contingent purposes 1 per cent, on the valuation of 1894, and \ per cent, for highway purposes, and $7,650 was spread on the rolls for the purpose of paying liquidation bonds, park bonds, and interest on the bonds.

The circuit judge ruled the questions hereinafter referred to in favor of the plaintiff, and judgment was entered on his written findings, which embodied the above statements of fact, and elaborate and well-considered findings of law, accompanied by a discussion and citation of authorities, which have been of exceptional aid in the consideration of the case.

The defendant contends that the plaintiff has no existence as a corporation capable of contracting, for the reason that no resolution declaring it expedient to have waterworks constructed, and that it was inexpedient for the city to build such works, was adopted by the common council; that the city had no authority to enter into such a contract for a like reason, and, further, because no such authority is given by the charter, and the contract creates an obligation prohibited by section 25 of the charter. It is also insisted that the clause in the contract agreeing to continue in force the schedule of prices for water furnished to private consumers is an abdication of governmental functions, such as the city may not deprive itself of by contract. It is also contended that the agreement to pay taxes is nudum pactum; that it is against public policy, in that it furnishes an inducement to the assessing officers to assess property at less than its true cash value; that it is, in effect, an exemption of property from taxation pro tanto, made without legislative authority; that it creates a monopoly, in that it grants such benefits to plaintiff that it would be impossible for any other water company to compete with it.

The plaintiff was organized under chapter 84, 1 How. Stat., the first section of which (1 How. Stat. § 3110) provides for the organization of such a company in any city when the common council shall, by resolution, declare that it is expedient to have waterworks constructed, and that it is inexpedient for the municipality to build such works. The finding of the circuit judge on this question is somewhat ambiguous. He states:

“It is true that there is no evidence of the passage of such a resolution. The first contract, however, entered into in 1882, recites that the common council had adopted such a resolution, and the council directed the execution of the contract by the mayor and recorder. I am of the opinion that this is sufficient evidence of the passage of such a resolution. ”

The statement quoted must be construed to mean that there was no evidence of record of the adoption of such a resolution. It does appear that the circuit judge was satisfied of the fact that such a resolution was adopted.

We need not determine whether it was competent to prove by parol the fact of the adoption of this resolution, as to which see Stevenson v. Bay City, 26 Mich. 44; Hall v. People, 21 Mich. 456; Ten Eyck v. Railroad Co., 74 Mich. 232 (32 L. R. A. 378, 16 Am. St. Rep. 633). The plaintiff is undoubtedly a corporation de facto, and the defendant has in this case admitted its corporate existence by the plea of the general issue. 2 How. Stat. § 8140; Garton v. Union City Bank, 34 Mich. 279. In the same connection, however, it is contended that, because of the failure to adopt this resolution, the city council did not have authority to contract with the plaintiff for a water supply. The point is not that the council was wholly without authority to make this contract under any circumstances, but that it failed to observe the preliminary formalities. The objection does not appeal strongly to the sense of justice. It is undoubtedly true that, when conditions precedent to corporate action exist, they are to be respected; and in any case where, as a condition to corporate action by the local governing body, such as the common council of the city, a previous vote of the people must be had, the council can neither waive nor dispense with such vote. In this case, however, the original contract recites the adoption of the resolution; and it appears by the finding that this contract was submitted to and approved by the common council, — the same body having authority to adopt such a resolution. If this be not equivalent to the adoption of a resolution, it should estop the city after 16 years of action under it, and after large expenditures have been made on the strength of it. Moore v. Mayor, etc., of New York, 73 N. Y. 238 (29 Am. Rep. 134); 2 Dill. Mun. Corp. § 936; 1 Dill. Mun. Corp. § 463. It has been held that a contract which it was within the power of a corporation to make may be ratified by the same authority; otherwise if the contract is, in the true sense of the word, ultra vires. This distinction is noted in the authorities cited above, as well as in East Jordan Lumber Co. v. Village of East Jordan, 100 Mich. 201, cited by defendant. See, also, Carey v. City of East Saginaw, 79 Mich. 73.

It is contended that the provisions relating to taxes are invalid, for the reason that the city has no power, under its charter, to exempt property frpm taxation, and that this contract is an attempt to exempt the property of the plaintiff in excess of a certain amount from its share of the public burden. The contract does not purport to provide that the property of plaintiff shall not be assessed. Its terms indicate that it was intended by both parties that it would be assessed, and that the plaintiff would pay the taxes on the property up to a certain amount, and the defendant all in excess, as a part of the consideration for the supply of water. The city no more exempts the property of the plaintiff from taxation by such an agreement than does the mortgagor who agrees to pay the taxes levied against the mortgaged property exempt the mortgaged property from taxation. Possibly neither possesses the power to exempt property from taxation. Certainly neither has done it. The two cases cited by the learned circuit judge — CartersvilleWater Co. v. Mayor, etc., of Cartersville, 89 Ga. 683, and Grant v. City of Davenport, 36 Iowa, 396 — not only support the plaintiff’s position in this case, but go further than it is necessary for us to go to sustain the plaintiff’s contention. We need not, and therefore do not, determine what would be the effect of a distinct agreement to exempt plaintiff’s property from taxation. We do hold that an agreement to pay a portion of the taxes which may be assessed against plaintiff, made upon good consideration, is not an exemption from taxation in any proper legal sense.

The proposition is stated by counsel for the defendant that a municipality, acting under charter rights granted by legislative enactment, cannot create a monopoly, unless the power to do so is expressly given, and proceeds to argue that the contract in question, in its provisions requiring the city to pay the taxes assessed, regardless of the extent of the mains or the amount of plaintiff’s property, gives the company an advantage, in competition with any similar company that might wish to do business in the city; that this amounts to a practical monopoly. The proposition, baldly stated, gets down to this: The plaintiff has made a contract with the city on terms so favorable that other companies cannot compete with it. If this constitutes a monopoly, the courts will be under the duty of scrutinizing contracts with municipalities with greát care. We cannot assent to the views of counsel in respect- to this claim. No exclusive rights were conferred upon the plaintiff. The city was authorized to contract for a water supply. To the extent that the contract of the city to take its supply of water from the plaintiff, and pay for it, gave the plaintiff an advantage over others desiring to do business of a like nature, it is á necessary and legitimate result of the right of contract.

It is contended that the contract is in excess of the powers of the council, for the reason that it requires an expenditure which, when added to other expenditures, exceeds the limit fixed by the charter in force when the ■ contract was made. This charter provides as follows:

“For the purpose of defraying the expenses and all liabilities of the city (except the principal of the bonded debt), and paying the same, the common council may raise annually, by tax levied upon the real and personal property within said city, such sum as they may deem necessary, not exceeding one per cent, on the valuation of such real and personal estate within the limits of said city, according to the valuation thereof taken from the assessment roll of the year preceding the levying of such tax.”

The new charter, in force in 1897, fixes the limitation of taxation at 1£ per cent, for general purposes, ‡ per cent, for street improvements, and 3 mills on the dollar for the interest and sinking fund. The record does not disclose the amount of the assessed value of the property in the city in 1892, when this contract was made; and unless we hold that this contract may be avoided by the fact that the expenditure required to fulfill it, when added to the expense of conducting the other affairs of the municipality, exceeds the limit, or that the city was not authorized to make a contract which would create a liability to accrue in the future, the contention must fail.

If the contract was- valid when made, it could not be impaired by subsequent legislation. Von Hoffman v. City of Quincy, 4 Wall. 535; Hammond v. Place, 116 Mich. 628, and cases cited. Did the charter, as it existed when this contract was niade, prohibit the incurring of such a liability as would from time to time accrue from performance of the contract on the part of the water company, the aggregate of which would exceed the 1 per cent, limit? Defendant contends that the charter should be so construed, and cites, in support of this contention, Putnam v. City of Grand Rapids, 58 Mich. 416, and Niles Waterworks Co. v. Mayor, etc., of Niles, 59 Mich. 311. Each of these cases rested on a charter restriction which denied to the council authority to create liabilities. In the present case the restriction in the section above quoted relates to the amount of taxation for each year, and there is no express inhibition as to incurring future contingent liabilities.

The charter does limit the authority of the council in respect to incurring indebtedness, but the rule (recognized in Putnam v. City of Grand Rapids) that a contract for future services, to be paid for as rendered, is not an incurring of indebtedness, is supported by abundant authority. Smith v. Inhabitants of Dedham, 144 Mass. 177; Davis v. City of Des Moines, 71 Iowa, 500; Crowder v. Town of Sullivan, 128 Ind. 486; Davenport v. Kleinschmidt, 6 Mont. 502; Carlyle Water, etc., Co. v. City of Carlyle, 31 Ill. App. 325; Seward v. Town of Liberty, 142 Ind. 551; Stedman v. City of Berlin, 97 Wis. 505; 1 Dill. Mun. Corp. § 136a.

Our conclusion is that the contract is valid. The only remaining question which need be discussed is whether the action for rentals is premature. It is stated in the brief of counsel that this item of claim was presented on March 7th, and suit brought March 12th, but the finding does not so state. The charter provides that it shall be a sufficient defense to any action that it is brought before the council has had a sufficient time to investigate and pass upon the claim.. There is no finding that the council had not sufficient time to investigate this claim, and take action upon it. The finding implies that the two claims were presented at the same time; and, inasmuch as the council did take action on the claim for taxes on March 7th, the inference is that it had time in which to consider the claim for rentals.

The judgment is affirmed.

The other Justices concurred.


text:
    PETIT v. FLINT & PERE MARQUETTE RAILROAD CO.
    1. Title to Land — Estoppel.
    An heir’s right to recover his undivided interest in land conveyed by executors without authority cannot be defeated by showing that the executors received full value for the premises, and disbursed the purchase money in part for his benefit, since title to land cannot rest in estoppel.
    2. Ejectment — Betterments — Good-Faith Occupancy— What Constitutes.
    The “good-faith” occupancy which, when accompanied by color of title, entitles a defendant in ejectment, under 3 How. Stat. § 7836, to compensation for betterments in case of plaintiff’s recovery, means simply occupancy under an honest.belief in his right or title.
    3. Same — Diligence.
    The fact that the exercise of diligence would have disclosed to the occupant that he had no title does not necessarily negative the good faith of his occupancy.
    4. Same — Value of Improvements — How-Estimated.
    The value of the improvements in such a case is to be determined by the actual relative value of the land with or without the improvements, and not by their cost or peculiar value to the occupant, or what they may be worth to the plaintiff in view of the purposes to which he intends to devote the property.
    5. Same — Color of Title-Deeds.
    That a deed of premises limits their use to a particular purpose does not prevent it from constituting color of title under said statute.
    Error to St. Clair; Eldredge, J., presiding.
    Submitted February 8, 1899.
    Decided March 6, 1899.

      Ejectment by Frank B. Petit against the Flint & Pere Marquette Railroad Company. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Benton Hanchett (Atkinson & Wolcott, of counsel), for appellant.

      N. E. Thomas (H. W. Stevens, of counsel), for appellee.
   Montgomery, J.

This case has once been before this court. See 114 Mich. 362. On the former hearing the questions which relate to the plaintiff’s title were dealt with, and the conclusion reached that the plaintiff had shown title to an undivided one-fourth of the premises in dispute, and that, on the record there presented,' no estoppel was shown. After the case was remanded, the defendant was permitted to amend its plea by adding thereto a claim for improvements. The case has been retried, resulting in a judgment for plaintiff, based on a verdict directed by the court, and defendant has brought error.

On the second trial the evidence was not essentially different from that which was offered on the first, in so far as it was directed to establish title.

Defendant offered testimony to show that the executors of Edward Petit received full value for the premises, and that the money so received was disbursed for the benefit of the heirs, including plaintiff. This testimony was offered for the purpose of showing an estoppel. The court rightly held that this testimony was not available to defeat plaintiff’s title in an action of ejectment. Hayes v. Livingston, 34 Mich. 387 (22 Am. Rep. 533); Huyck v. Bailey, 100 Mich. 223; Penfold v. Warner, 96 Mich. 179 (35 Am. St. Rep. 591)

The principal question presented on this record is whether the circuit judge was right in refusing to submit to the jury the question of the increased value of the land by reason of the improvements. Plaintiff seeks to sustain this ruling on two grounds: First, that as the will under which the executors attempted to convey did not, as a matter of law, authorize the conveyance, the defendant was bound to know that fact, and cannot be deemed a good-faith occupant; and, second, that the evidence fails to show that the improvements placed upon the land were of any value to the land, disconnected from their use in connectioh with defendant’s railroad. We think neither proposition tenable. The statute (section 7836, 3 How. Stat.) affirms an equitable right, and should receive no technical construction which will interfere with the purpose aimed at. The good faith intended by this statute means honest belier of the occupant in his right or title, and there was testimony in this case tending to show that the agents of defendant acted in good faith in entering into and retaining possession. The fact that diligence might have shown defendant that it had no title does,not necessarily negative good faith. Griswold v. Bragg, 19 Blatchf. 94; Canal Bank v. Hudson, 111 U. S. 66; Cole v. Johnson, 53 Miss. 94; Rawson v. Fox, 65 Ill. 200.

The evidence tends to show that the land is more valuable to sell with the improvements placed thereon by the defendant than it would have been had no such improvements been made. Possibly the testimony is not conclusive on this point, but such is the tendency of some of the testimony. We think this must be the test under this statute, — the actual relative value of the land with or without the improvements. On the one hand, because structures had been erected or placed upon the land which cost the defendant money, and which are of value to it, the plaintiff cannot be charged with this cost, or special, peculiar value to defendant, if the actual value of the premises has not been enhanced thereby. On the other hand, the defendant cannot be denied all relief under this remedial statute on the ground that the improvements are not adapted to the use to which the plaintiff may assert it “to be his intention to devote the property upon recovering it.

The fact that, by the terms of the deed under which the defendant held, the use of the premises was limited to a particular purpose, does not prevent the deed’s constituting color of title.

The judgment will be reversed, and a new trial ordered.

The other Justices concurred.


author: Moore, J.

text:
    LITTEN v. CITY OF DETROIT.
    Personal Injuries — Damages—Erroneous Instruction Favoring Appellant — Harmless Error.
    Plaintiff, claiming to have been ruptured by a fall on a defective sidewalk, brought suit for his injuries. It was the claim of defendant city that the rupture had existed from childhood. After charging the jury that they should not consider the question of damages at all unless they believed the testimony of the plaintiff, the court gave, on his own motion, the further instruction that if plaintiff was somewhat ruptured before the accident, and was additionally ruptured thereby, his previous condition should be taken into consideration in deciding how much his earning capacity had been diminished. Held, that defendant could not complain of the instruction, the evident purpose of which was to caution the jury against giving excessive damages against the city.
    Error to Oakland; Smith, J.
    Submitted January 27, 1899.
    Decided March 6, 1899.
    Case by George Litten against the city of Detroit for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Charles Flowers, for appellant.

      Elliott G. Stevenson and Edward McNamara (Leo M. Butzel, of counsel), for appellee. .
   Moore, J.

The defendant has appealed from a judgment obtained against it by plaintiff for injuries received upon a defective walk. The only error relied upon by counsel relates to that part of the charge of the judge reading as follows:

“Of course, 'gentlemen, although not much has been said about it, this will follow: That if he was somewhat ruptured before the accident occurred, and was additionally ruptured by the accident, then the previous condition will be taken into consideration in passing upon how much or how little his earnings will be diminished. ”

It was the claim of the plaintiff that previous to the injury he was a well man, and the injury caused a double rupture. It was the claim of the defendant that the ruptures were not the result of the injury, but had existed from childhood. Counsel for the city contends the charge brought into the case a theory which was not claimed by either of the parties, and was therefore harmful error; citing Wilkinson v. Spring Works, 73 Mich. 405. This case is unlike the Wilkinson Case, in that there is nothing in the declaration that would prevent recovery for an aggravation of a previous infirmity. The case is more nearly with Phippen v. Railway Co., 110 Mich. 351.

We do not deem it necessary, however, to decide whether this isolated portion of the charge was strictly accurate or not. The record does not purport to contain all the evidence. The trial was a long one. The charge of the court was very long, and very carefully prepared. He charged the jury, among other things, as follows:

‘ ‘ The burden of the proof, gentlemen, is upon the plaintiff to establish his case by a preponderance of evidence. Involved in that burden of establishing his case is the proof of several independent facts or propositions by the. plaintiff, and I have subdivided them for ease to the jury, —for your convenience in remembering and understanding them: First, he should prove he was injured; second, that the injury was by reason of the sidewalk not being in a condition reasonably safe and fit for travel; third, that the defendant city was negligent in permitting the walk to be in this unsafe condition; fourth, that the plaintiff’s own negligence in no manner contributed to his own injury. These things you will consider before approaching the question of damages at all. If the plaintiff fails to establish any one of these four facts or propositions to your satisfaction by a preponderance of evidence, he must fail in his suit, and your verdict be for the defendant. Of course, if he shall establish these facts or propositions, or has established them, by a fair preponderance of evidence to your satisfaction, then the verdict will, of course, be for the plaintiff, and you will proceed to assess the damages.
“Now, as to the first proposition, — that he must establish that he was injured,— I state it in that way, because it is the claim of the city that he was ruptured from childhood, and evidence has been introduced tending to establish this claim. The city has introduced medical evidence also as to the improbability of a fall upon a sidewalk producing a double rupture; and they introduced alleged statements also of Litten himself that he was ruptured before the date of the alleged injury. The plaintiff has, upon the case in chief (as was his right), assumed the burden of meeting this by evidence of his work; the evidence of witnesses who saw him in childhood; and the evidence of witnesses who have seen him since, — who have seen his physical condition, and who describe the character and nature of the work they claim they have seen him do. Now, this whole question, gentlemen, is one wholly for you to determine from the great mass of evidence introduced on both sides, whether or not he was injured as he claims, or as to whether he was suffering from a rupture, and is using it now to improperly secure a verdict against the city.
“Second. That he was injured by reason of this sidewalk not being in a condition reasonably safe and fit for travel. The city of Detroit, gentlemen, is not an insurer against accidents "upon its streets and sidewalks, nor will the city be liable for a defect that is practically unavoidable, or for injuries that are clearly accidental. It is not obliged to make and keep its walks in a perfect condition. The place where the walk is should be considered. What would be a suitable walk, for instance, upon Kirby avenue, would not be a suitable walk for the business portion of Woodward avenue, and vice versa. It is a sufficient defense for the city in this case if the sidewalk in question, at the place in question, was in a reasonably safe and fit ■condition for travel at the time the plaintiff claims to have been injured; and it cannot be held liable unless the walk at that point was not reasonably safe and fit for travel, considering its location and the travel likely to pass over it. The plaintiff must also have been injured at that particular point by reason of its defective condition. The plaintiff states that he was alone when injured, so that no one else testifies that the unsafe condition of the walk caused his injury, if the walk actually caused his injury; and it is insisted by counsel for the defense in their argument that his testimony should be rejected by you, — that is, not to be believed by you. That, gentlemen, is a question for you to decide; as to just what credit you should give the plaintiff, or any of the witnesses in the case, is a question solely for your consideration. It is a rule of law that if, in the judgment of the jury, a witness has given willful false testimony concerning a material fact, then the jury may reject his testimony entirely. That, however, is a rule that the jury shall say as to when it shall be applied, and as to how it shall be applied. So that it is a question addressed to the judgment of the jury as to just what credit shall be given to the testimony of a witness. If, in your judgment, the testimony of the plaintiff should be discredited, and if, in your judgment, you ought to discredit it, then, of course, it is your duty to do so, and you should give no verdict for him, because his testimony alone is the testimony by which one of the material facts in this case is established.”

It will be seen that the jury were very clearly told that, unless they believed the testimony of the plaintiff, he could not recover. The judge then discussed in detail the other two of the four propositions, and told the jury that, if all four of them were established in favor of plaintiff, they would then approach the question of damages. It was w;hen instructing the jury as to the measure of damages the language of which complaint is made was used. It is apparent from the context that its purpose was to caution the jury against giving excessive damages against the city. Taking the charge as an entirety, it is clear the jury were not misled to the prejudice of the defendant.

Judgment is affirmed.

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


text:
    WRIGHT v. WAYNE CIRCUIT JUDGE.
    1. Capias — Sufficiency of Affidavit — Knowledge of Af-
    ' FIANT.
    An affidavit for a capias ad respondendum, alleged that, on a day specified, defendant said of and concerning deponent, “You (meaning this deponent) stole my wheel;” that defendant charged deponent with the larceny of said bicycle, saying to a certain police officer, “That woman (meaning this deponent) stole my wheel, and I want her locked up;” and that thereupon defendant caused deponent to be arrested by the police officer there present. Held, that the language sufficiently imported that some of the statements were made to affiant personally, and that she had personal knowledge of the facts stated in the affidavit.
    2. Same — Appearance.
    The fact that a writ of capias ad respondendum, following the form prescribed by Circuit Court Rule No. 1, states the time within which defendant may enter his appearance as 15 days after service of the writ, while the statute (2 How. Stat. § 7306), which must govern in such cases, allows 20 days after the return day, does not render the writ void.

      Mandamus by Oliver A. Wright to compel George S, Hosmer, circuit judge of Wayne county, to quash a writ of capias ad respondendum.

    Submitted February 21, 1899.
    Writ denied March 6, 1899.

      Selling & Hatch, for relator.

      Frank C. Cook and R. E. Van Syckle, for respondent.
   Moore, J.

The relator was arrested upon a writ of capias ad respondendum. He moved the respondent-to quash the writ. His motion was overruled. This is a proceeding to have the order overruling his motion vacated. Two questions are involved: First. Was the áffidavit insufficient? Second. Was the writ of capias void as being contrary to the terms of the statute ?

The relator contends the affidavit does not show the facts stated therein were within the personal knowledge of the affiant, and for that reason is fatally defective; citing Proctor v. Prout, 17 Mich. 473; Brown v. Kelley, 20 Mich. 33; Badgers. Reade, 39 Mich. 774; Marble v. Curran, 63 Mich. 288; Graham v. Cass Circuit Judge, 108 Mich. 425; Shaw v. Ashford, 110 Mich.. 534. These cases undoubtedly establish the doctrine that the affiant must state he has personal knowledge of the facts stated in the affidavit, or that fact must be made to appear by what is stated in the affidavit. The language used in the affidavit is in part as follows:

“On the 16th day of July, 1898, * * * said Oliver A. Wright then and there said of and concerning this deponent, * * * ‘You (meaning this deponent) stole my wheel;’ ‘that woman (meaning this deponent) stole my wheel, and I want her locked up,’ — thereby meaning to insinuate * * * that this deponent had been guilty of the crime of larceny; * * * that said Oliver A. Wright * * * charged this deponent * * * with the larceny of said bicycle, the property of Oliver A. Wright, in manner and form aforesaid, saying to a certain police officer of the city of Detroit there present, ‘That woman (meaning this deponent) stole my wheel, and I want her locked up; ’ and that thereupon the said Oliver A. Wright then and there falsely and maliciously caused and procured this deponent to be arrested and taken into custody by the said police officer there present upon the aforesaid charge,” etc.

Giving this language its ordinary meaning, the conclusion is irresistible that some of these statements were made to affiant personally, and that the affiant knew of her own personal knowledge the facts stated in the affidavit. The ' affidavit was not defective. Pease v. Pendell, 57 Mich. 315; Hatch v. Saunders, 66 Mich. 181; Pamper v. Roberts, 83 Mich. 547; Paulus v. Grobben, 104 Mich. 42.

It is claimed the writ of capias is void, because it commands the defendant, if he desires to defend, to have his appearance entered within 15 days after service of the writ, while the statute (2 How. Stat. § 7306) gives the defendant 20 days after the return day; citing Reid, Murdock & Co. v. Benzie Circuit Judge, 115 Mich. 418. This case holds that proceedings by capias are governed by the statute, and not by the rules of court. Section 7295, 3 How. Stat., provides what the form of the writ shall be, and contemplates it may be altered by rule of court. Cir. Ct. Rule No. 1 prescribes the form of the writ. The form there prescribed was followed in this case. The right to appear in the case is controlled by the provisions of the statute, and nothing was done in the case which has deprived the relator of. that right. We do •not think it follows that, the writ is void because the time stated therein for entering an appearance is shorter than the time fixed by statute.

The writ of mandamus is denied.

The other Justices concurred.


text:
    ISMOND v. SCOUGALE.
    1. Court Rules — Writ oe Error — Stay oe Execution.
    3 How. Stat. § 7621c et seq., providing for a stay of proceedings pending the settlement of a bill of exceptions upon the applicant’s filing a proper bond, and declaring a further bond on issuance of writ of error to be unnecessary, gives a proposed appellant no right to have execution stayed indefinitely, until issuance of writ of error, that is contravened by Circuit Court Rule No. 47 (h), declaring inoperative any order staying execution in case writ of error does not issue within 10 days after settlement of bill of exceptions.
    3. Same — Recall oe Execution — Jurisdiction.
    Under the proviso to Circuit Court Rule No. 47 (7i) for recall of execution on cause shown, on special motion and on proper terms, such a motion must be addressed to the court from which the execution issued.

      Trover by Oscar O. Ismond against Monroe L. Scongale, sheriff of Shiawassee county. Defendant, having appealed from an adverse judgment, applied to the Supreme Court for an order recalling an execution issued out of the circuit court.
    Submitted February 15, 1899.
    Motion denied (without prejudice to its renewal in the circuit) March 6, 1899.

      Charles M. Hamper (Van Ranst Pond and Charles A. Withey, of counsel), for the motion.

      Watson & Chapman, contra.

   Long, J.

Motion is made to recall an execution issued out of the circuit court for Shiawassee county in the above cause before its removal to this court, and to stay proceedings until the case is heard in this court. It appears that the judgment was rendered October 15, 1898, for $1,702.90', and execution issued to the coroner on January 31, 1899. On the evening of the day that execution issued, a writ of error was issued to remove the cause to this court. A bill of exceptions had been settled in the cause, signed by the circuit judge, and filed with the clerk of said court, on January 17, 1899. It also appears that a bond in the penalty of $3,405.80, duly approved by the court and accepted by plaintiff’s attorneys, had been filed in the cause on November 4, 1898. The writ of error was returned into this court on February 3, 1899. On February 7th, defendant’s counsel caused to be served on the coroner a copy of such stay bond, with the certificate of the county clerk of the filing of said bond in his office, and of the service of the writ of error.

The facts are admitted, but counsel for plaintiff contend that under Gir. Ct. Rule No. 47 (h) the execution was properly issued, and should not be recalled. That rule provides that:

“Unless, within ten days after the settlement of a bill of exceptions, the proposed appellant cause a writ of error to be issued out of the Supreme Court and filed, any order staying execution shall become' inoperative, and the adverse party shall be entitled to an execution: Provided, that on cause shown, on special motion and on propei terms, the court may order the recall of such execution.”

It will be noticed that the bill of exceptions was settled on January 17th, and the writ of error was not taken out until the 38th of the same month. This writ of error was not taken out; therefore, within the 10 days after the settlement of the bill of exceptions; and, within the above rule, the plaintiff was entitled to an execution.

But counsel for defendant contend that the above Buie 47 is in violation of the statute, and that it is therefore void. Prior to the adoption of Buie 47, subd. h, it was held in some of the circuits that an appellant, after obtaining a settlement of a bill of exceptions (which the lower court might compel within a reasonable time), could postpone the issue of a writ of error until the end of one year from the date of the judgment (that time being allowed by 3 How. Stat. § 8686, for the issue of a writ of error), and that in the meantime, if a bond were filed by the appellant, the appellee could take no steps towards the collection of the judgment, nor to expedite its review in this court. We think the statutes relative to the issuing of writs of error and bonds to stay proceedings were never intended to permit such practice; yet, without some such provision as subdivision h of Buie 47, it lies within the power of the appellant to delay the collection of the judgment and delay the hearing in this court. Buie 47 was adopted to prevent such unreasonable delay, and it was clearly within the power of this court to adopt such a rule, under article 6, § 5, of the Constitution, which provides that “the Supreme Court shall, by general rules, establish, modify, and amend the practice in such court and in the circuit courts, and simplify the same,” and under section 6409, 5 Hów. Stat., which provides that “the judges of the Supreme Court shall have power, and it shall be their duty, within three months after this law shall take effect, by general rules, to establish, and from time to time thereafter to modify and amend, the practice in said court, and in the circuit courts, at law and in equity, in the cases not provided for by any statute.” Laws 1851, Act No. 93.

As we have said,.the acts relative to writs of error and stay bonds do not conflict with this rule. Prior to Act No. 276, Pub. Acts 1887, as amended by Act No. 114, Pub. Acts 1889 (3 How. Stat. § 7621c et seq.), the appellant had no right to a stay of execution until the actual filing of the stay bond, and the actual service of a writ of error upon the clerk, under the provisions of sections 8679 -8681, 2 How. Stat. Under those sections, if an execution had been taken out prior to the filing of the bond and service of the writ of error, the further proceedings upon the execution were stayed by serving a certificate upon the sheriff. ' By the terms of the act of 1887 as amended, this situation whs remedied by providing for a bond pending the settlement of the bill of exceptions, and prior to the issue of the writ of error; and, as the bond provided for in that act would protect the appellee in the same manner that a bond under the former act would protect him, it was provided in the amendment of 1889 that, if the appellant had filed a bond pending the settlement of the bill of exceptions, he should not be required to file any further bond in order “to stay and supersede execution upon any writ of error issued out of the Supreme Court by or on behalf of the party filing the bond.” These statutes do not contain anything which implies that the party appealing may have the execution stayed indefinitely, or until the expiration of a year from the entry of judgment, without seasonable issue of a writ of error. It was to compel the issuance of the writ of error within a reasonable time that the rule was adopted, and 10 days from the settlement of the bill of exceptions was regarded as a reasonable time to sue out such writ. ,

In the present case, perhaps from a misunderstanding of the rule, or perhaps from the belief of counsel that the rule was in conflict with the statute, and could not be upheld, the writ of error was issued one day too late, and execution was thereupon issued. The rule, however, provides that “on cause shown, on special motion and on proper terms, the court may order the recall of such execution.” But that motion cannot properly be addressed to this court. The execution was. issued from the court below, and must be recalled into that court, if recalled at all, and hence the motion must be made there; and that court will very likely, under the circumstances, order the recall. We have given our views upon this rule, though not assuming jurisdiction to act, so that the circuit courts and the bar may be advised upon it.

The motion must be denied, 'with costs in favor of the appellee, but without prejudice to the right of the appellant to apply to the court below.

The other Justices concurred.


author: Per Curiam.

text:
    WISCONSIN, MICHIGAN & NORTHERN RAILWAY CO. v. STATE RAILROAD CROSSING BOARD.
    1. Railroad Crossing Board — Expiration op Oppioe — Abatement op Pending Proceedings.

      Mandamus proceedings to compel the state railroad crossing board to take official action, upon a railroad map presented for its approval will not abate because, pending a determination of the cause, the terms of office of a majority of the board expire, but the writ may issue in such case to their successors in office.
    3. Same — Approval op Map — Mandamus.
    3 How. Stat. § 3831, provides that the railroad crossing board shall approve a map of a railroad within 30 days after its presentation, or within such time file in the office of the commissioner of railroads written reasons for disapproving it, and serve a copy thereof upon the company. Held, that mandamus will lie to compel the board to reduce its objections to writing.

      3. Same — Discretionary Powers — Review.
    Whether, when the reasons for the board’s disapproval of a proposed route have been reduced to writing, the exercise of its discretionary powers will in any case be subject to review, — queer e.

      Mandamus by the Wisconsin, Michigan & Northern Railway Company to compel Sybrant Wesselius, commissioner of railroads, and others, constituting the state railroad crossing board, to take official action upon a map.
    Submitted February 7, 1899.
    Writ granted March 6, 1899.

      Mason, Holmes & Mason (Russell C. Ostrander, of counsel), for relator.

      Fred A. Maynard, for respondents.
   Per Curiam.

This is an application for mandamus to compel the respondents, as the crossing board, to approve the map of the relator. It appears that the map was presented, and that at the time the petition was filed the same had not been approved by a majority of the board. The railroad commissioner had approved the map, the secretary of state had signed a statement showing reasons why he did not approve it, and the then attorney general, while he had orally stated his reasons for not approving the map, had not reduced them to writing and filed them with the commissioner. The statute (section '3321, 3 How. Stat.) provides that the board shall approve the map within 30 days from the time it is presented by the company, or within 30. days shall file in the office of the commissioner of railroads written reasons for the disapproval of said map, or any part thereof, and serve a copy of said reasons upon the said company.

Since the petition was filed, Secretary of State Gardner and Attorney General Maynard have been succeeded in office, their respective terms having expired. The question is raised as to whether, under these circumstances, the court should proceed to grant an order in the case, or whether the relator should be required to proceed de novo. The proceeding is against members of the board as officers, and a writ is asked to compel official action. The proceeding does not, in such cases, abate, but the order may-run to the present members of the board. Merrill, Mand. § 238; Reeder v. Wexford County Treasurer, 37 Mich. 351; People v. Bacon, 18 Mich. 247.

It is contended that the reasons for .the refusal to approve the map of relator, assigned by the respondents on the hearing, are insufficient. We do not determine this. As was said in Fort-St. Union Depot Co. v. State Railroad Crossing Board, 81 Mich. 248, 257, the board is “vested with a discretionary power to approve or disapprove.” Whether, in any case, this power is subject to review, we do not now decide. The action of the board was not taken in th.6 manner prescribed by statute. The relator is entitled to have the reasons for refusing to approve the map set forth of record.

The writ will issue directing the board to proceed to approve or disapprove the map.