author: Grant, J. Moore, J.

text:
    RAUCH v. MICHIGAN MILLERS’ MUTUAL FIRE-INSURANCE CO.
    1. Additional Insurance — Estoppel.
    Where a policy holder writes the insurer that he has taken out additional insurance, that his policy issued by it is in a certain bank, and that he does not remember its conditions, and says, “If there is anything that conflicts with your policy, please advise me,” the insurer, receiving the letter and not answering it, is estopped to claim that its policy is avoided by additional insurance, whether taken out before or after the writing of the letter. Grant, J., dissenting.
    2. Letters — Mailing — Receipt — Presumption — Question for Jury.
    A letter shown to have been properly addressed, stanrped, and mailed is presumed to have been delivered; and, while such presumption is not conclusive, a denial of its receipt is none the more so, but makes the question one for the jury.
    3. Estoppel — Future Transactions.
    An estoppel cannot be based upon future transactions, unless the party against whom the estoppel is sought to be enforced was informed that such things would be done. Per Grant, J.
    Error to Eaton; Smith, J.
    Submitted April 10, 1902.
    (Docket No. 70.)
    Decided June 27, 1902.

      Assumpsit by Henry S. Rauch against the Michigan MiHers’ Mutual Fire-Insurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Crane, Norris & Drew, for appellant.

      Lyman H. McCall and J. M. C. Smith, for appellee.
   Grant, J.

(dissenting). Plaintiff recovered verdict and judgment upon a policy of insurance for a loss by fire. The policy was dated August 3, 1899. In his application were the following question and answer: “What will be the total insurance on the buildings, machinery, boiler, and engine? Answer. Two thousand five hundred dollars.” The applicatipn further stated :

“The undersigned applicant hereby warrants that the above is a just, full, and true exposition of the facts and circumstances in regard to the property to- be insured, and is and shall be considered as the basis on which insurance is to be effected and continued in force, and the same is understood as incorporated in and forming a part and parcel of the policy as a continuing warranty during the life of such policy.”

The policy was of the Michigan standard, and contained the following provisions:

“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance, or the subject thereof. * * *
“ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.”

Plaintiff was permitted to testify to conversations between the defendant’s solicitor, who took the policy, and himself, as follows:

“ I wanted the policy fixed so that I could take other concurrent insurance on it, — on the entire plant throughout, any place, on the building or machinery, stock, engine room, boiler, and so forth. He said that would be all right. He said it would be perfectly satisfactory with them, and they would fix the policy so that I could. * * * After he read it over again, I again called his attention to the policy being fixed so that I could take out other concurrent insurance; that after I got tho mill going I intended to take out more insurance on it than I had at the present time, — after the mill was completed and in operation. He agreed to that, and said it would be perfectly satisfactory to the company, and they would fix my policy so that I could.”

Plaintiff was also permitted to testify that in December, 1900, he met defendant’s solicitor at Albion, and told him that he had taken out another policy, and that the solicitor said:

“ ‘ You can carry more than that on all your stock.’ * * * He said I could take out more insurance, and I told him I wasn’t able to at present; that perhaps after awhile I would give, him some more insurance.”

On September 28, 1899, plaintiff took out additional insurance in the Michigan Manufacturers’ Mutual Fire-Insurance Company of Bay City, for $1,000. Plaintiff further testified that on January 15, 1900, he wrote and mailed a letter to the defendant, which reads as follows:

Gentlemen: I thought perhaps it would be advisable to inform you that I have taken out more insurance on the stock in process, grain, machinery, and on the mill building. Not just remembering the conditions of your policy, as the bank at Charlotte holds the same, if there is anything that conflicts with your policy, please advise me.”

Defendant denied receiving such a letter.

On February 7, 1901, plaintiff secured additional insurance to the amount of $1,500 in the Detroit Fire & Marine Insurance Company, upon the same property, without the knowledge or assent of the defendant. Of this policy, defendant had no notice or knowledge until after the fire.

The court instructed the jury that the plaintiff was bound by the contract; that he had the opportunity to examine it, and was chargeable with knowledge of its contents; that all previous oral negotiations are contained in the writing, and bind both parties; that plaintiff was therefore precluded from claiming that the contract was not in accordance with the oral agreement; and instructed the jury to disregard the testimony of the conversations between the plaintiff and the defendant’s solicitor. He also instructed them that they must disregard the testimony in regard to the conversation which plaintiff testified he had with defendant’s solicitor at Albion, after the policy of insurance was issued, and that that conversation in regard to other insurance did not bind the defendant. Only one question was left to the jury, viz., was the letter of January 15, 1900, written and mailed by the plaintiff and received by the defendant? The court instructed them that, if they found that such a letter was mailed and received, the defendant was estopped from denying its liability on account of the policy subsequently issued. There was no dispute on the amount of the loss.

1. The question of whether the letter of January 15th was written, mailed, and received was a question of fact to -be determined by the jury, in the light of all the surrounding circumstances. If mailed, the presumption is that the postoffice officials performed their duty, and that the letter was delivered. The defendant could rebut this by evidence that it did not receive the letter. The testimony of neither party makes a conclusive case, but one of doubt for the jury to solve. It was not a question for the court. Rosenthal v. Walker, 111 U. S. 185 (4 Sup. Ct. 382), and authorities there cited.

2. The instruction of the court as to the binding force of this policy upon the plaintiff was correct. Cleaver v. Insurance Co., 65 Mich. 527 (32 N. W. 660, 8 Am. St. Rep. 908); Gould v. Insurance Co., 90 Mich. 308 (52 N. W. 754); Wierengo v. Insurance Co., 98 Mich. 621 (57 N. W. 833); Ranspach v. Insurance Co., 109 Mich. 699 (67 N. W. 967). Did the letter of January 15th waive this provision of the policy, and authorize the plaintiff to thereafter secure additional insurance ad libitum? The provisions of the policy were perfectly plain. Plaintiff did not need to write to defendant asking for its conditions. It was in his control at the bank, where he could read it for himself. The letter did not ask for permission to get other additional insurance, or notify defendant that plaintiff intended to do so. It referred solely to the fact that he had taken out more insurance. Whether the failure to reply would estop the defendant as to the prior policy, we need not determine. I think it clear that it did not-authorize the plaintiff to get other insurance in the future, or estop the defendant from avoiding the policy if he did so without the assent of the defendant. Allemania Ins. Co. v. Hurd, 37 Mich. 11 (26 Am. Rep. 491). Estoppel cannot be based upon unknown facts, or upon future transactions, unless the party against whom the estoppel is sought to be enforced was informed that such things would be done.

3. It follows, from what has been said, that the court erred in admitting in evidence the conversation preceding the issue of the policy or contemporaneous with it. Northern Assur. Co. v. Grand View Bldg. Ass’n, 183 U. S. 308 (22 Sup. Ct. 133), where the decisions upon this point are reviewed. It also follows that the conversation between plaintiff and the defendant’s solicitor, after the issue of the policy, was incompetent.

4. In view of a new trial, it is proper to state that it was not competent to prove that no premium had been returned by the defendant. This is not a case for the application of the doctrine that the* receipt and retention of premiums are of force in determining the liability of the defendant. It was under no obligation to return any of the premiums.

Judgment should be reversed, and new trial ordered.

Moore, J.

In reference to the letter of January 15, 1900, the circuit judge charged the jury as follows:

“That leaves just one question, and it is the important one. The material or controlling question in the case, in my judgment, is as. to whether the company is estopped from denying liability because of other insurance taken out by Mr. Rauch without its permission indorsed on the policy.
“Parties are sometimes estopped by their conduct; that is to say, if, having knowledge of the fact, a party remains silent, and permits another interested to do certain things which he would not have done had he spoken, he is estopped from asserting that such an act is a defense on his part. Take this case, gentlemen; The plaintiff claims he wrote a letter January 15, 1900, to the defendant, in substance that he had taken out other insurance on the property in question, and stating to the company in this letter that his policy was at the bank at Charlotte; that he did not remember its conditions; and closes the letter by saying, ‘If-there is anything that conflicts with your policy, please advise me.’ If he wrote this letter, and it was received by the company, the company would be in duty bound to reply to it, and give to plaintiff its decision regarding the information referred to in the letter ; and, if it did not do so, plaintiff might as well think he would have the right to take out other insurance, and, if he did so, the company could not defend, against the policy on that ground in case there was a loss.
“And so, gentlemen, I instruct you that if you find, by a fair preponderance of the evidence, that the plaintiff wrote a letter to the company January 15, 1900, of which that read from the letter-press book is a copy, and mailed the same in an envelope, with his return card thereon, as testified to by him, and the same was properly stamped, and addressed to the .insurance company at Lansing, Michigan, and mailed by plaintiff in the postoffice at Vermontville, Michigan, that the presumption of law is that such letter was received by. the defendant in the due course of mails. The defendant claims it never received this letter, and the question, gentlemen, for you to determine in the case, is whether or not such letter was received by the defendant,-the insurance company. And I instruct you that, if you find that defendant company received the letter claimed to have been written by Mr. Rauch, it was the duty of the company, upon receipt of such letter, to cancel the policy in suit, or reply to the inquiry therein made, which is substantially a request to know whether or not additional insurance was permitted under the policy in suit, which had been delivered to the bank in conformity to the rider placed thereon by the defendant company; and a failure to so notify Mr. Rauch, or to answer his letter, was a waiver on the part of the company of any of the terms of the policy prohibiting additional insurance, and the defendant is now estopped from claiming such forfeiture on account of any and all additional insurance, either on the property at the time of the receipt of such letter, or subsequently placed thereon by Mr. Rauch, if you find it was received; the law being, if a party, by his silence, directly leads another to his injury, he will not be permitted, after his injury has happened, to then allege anything to the contrary. The sole question in this case which will give you any trouble will be, was this letter written, properly addressed and stamped, and duly mailed, and did it reach defendant’s office by due course of mail ? The burden of proof is with the plaintiff to satisfy you, by a fair preponderance of the evidence, of the claim he makes, and this applies, of course, to the question as to the receipt of this letter by the company. If you find, by a fair preponderance of evidence, that the letter was received by the. company, then the plaintiff should have your verdict for $3,078.75. If you find defendant did not receive this letter, then your verdict should be for the defendant, no cause of action.”

It is evident that, under the instruction of the court, the jury could not have rendered the verdict they did without finding as a fact the letter was sent and received as claimed by plaintiff. If plaintiff advised the defendant he had taken out additional insurance, and that the policy was not where he could refer to it, and requested the company, if the taking of the additional insurance conflicted with the terms of the policy, to advise him, it became the duty of the company to inform the plaintiff if it did conflict. The company could not remain silent until after a loss, retaining the premium paid, and then claim the policy was void. There is no contest about the amount of the loss or the cause of the fire. The defense is a technical one, and ought not to prevail if the facts are as found by the jury.

The judgment should be affirmed.

Hooker, C. J., and Montgomery, J., concurred with Moore,, J.

Long, J., did not sit.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    CROSBY v. PERE MARQUETTE RAILROAD CO.
    1. Railroads — Discrimination—Penalty—Party Aggrieved.
    2 Comp. Laws, § 6285, provides that every railroad company shall transport passengers and property without partiality or favor, under a penalty for each violation of such provision of $100, to be recovered by the party aggrieved. Held, that such penalty could not be recovered by another common carrier, to whom property was consigned to be carried to its destination.
    2. Statutes — Construction.
    A penal statute must be strictly construed.
    Error to Muskegon; Russell, J.
    Submitted April 10, 1902.
    (Docket No. 50.)
    Decided June 27, 1902.
    Debt by Edward Q-. Crosby and Robert R. Rice, copartners as the Crosby Transportation Company, against the Pere Marquette Railroad Company, to recover a penalty. Prom a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Aifirmed.

      William Carpenter, for appellants.

      Smith, Nims, Hoyt & Enoin (F. W. Stevens, of counsel), for appellee.
   Montgomery, J.

This is an action to recover the penalty prescribed by 2 Comp. Laws, § 6235, which reads as follows:

“ Every such corporation shall furnish sufficient accommodation for the transportation of all such passengers and property as shall, within a reasonable time previous thereto, offer or be offered for transportation at the place of starting, and the junctions of other railroads, and at siding and at stopping places established for discharging and receiving way passengers and freight, and shall take, transport, and discharge such passengers and property at, from, and to such places on the due payment of toll, freight, or fare legally authorized therefor; and every such corporation shall transport merchandise, wood, lumber, and other property, and persons, from the various stations upon said road, without partiality or favor, when not otherwise directed by the owner of said property, and with all practicable dispatch, and in the order in which such freight and property shall have been received, under a penalty for each violation of this provision of one hundred dollars, to be recovered by the party aggrieved in an action of debt against such corporation: Provided, that perishable or explosive freight and property shall have the preference over all other classes of merchandise. In case of the refusal by such corporation or agents so to take and transport any such passenger or property as aforesaid, or to deliver the same, or either of them, without a legal ór just excuse for such default, such corporation shall pay to the party aggrieved all damages which shall be sustained thereby, with costs of suit, or the penalty prescribed in this section, at the election of the party aggrieved.”

The declaration avers, in the first count, that plaintiffs are copartners doing business under the firm name of the Crosby Transportation Company, and operating a line of steamboats carrying goods and merchandise for hire from the cities of Muskegon and Grand Haven, in the State of Michigan, to the city of Milwaukee, in the State of Wisconsin. It then avers the duty of defendant to furnish accommodation for the transportation of property offered for transportation, and to transport the same with áll practicable dispatch, without partiality or discrimination, under a penalty of $100. It next avers that on the 26th day of August, 1901, one Charles F. Hale, of Shelby, Mich., within a reasonable time previous to the starting of defendant’s train, offered to defendant’s agent at its station at Shelby one car of fruit, consigned to the Crosby Transportation Company, at Muskegon, Mich., and offered to prepay the freight, but that defendant’s agent, without legal or just excuse, refused to receive the car load of fruit, and that by reason thereof, and by force of the statute, “an action has accrued to the plaintiffs, who were the parties aggrieved by the said refusal, for the recovery of the penalty named in the statute.” The second count is general, alleging that defendant exercised partiality in accepting at its station at Shelby a car load of fruit to be delivered to the Goodrich Transportation Company, at Muskegon, and refusing to accept a certain other car load of fruit to be delivered to the plaintiffs, contrary to the form of the statute, by reason whereof “an action has accrued to the plaintiffs, they being the parties aggrieved, to recover from the defendant the penalty named in said statute,” etc.

The case presents numerous interesting questions; but the question which meets us at the threshold of the case is whether the plaintiffs occupy such a relation to this proposed shipment of goods as entitles them to maintain this action. It is not averred that the fruit was the property of the plaintiffs, or that- they had any interest therein other than the prospective profits which they might have earned as common carriers had the freight been shipped to them. This calls for a construction of the terms of the statute, which confine the recovery of the penalty to the “ party aggrieved.” It will be noted that the penalty fixed is “a penalty for each violation of this provision, to be recovered by the party aggrieved.” The penalty arises “in case of the refusal by such corporation or agents so to take and transport any such passenger or property, or to deliver the same, without a legal or just excuse for such default.” It would be an enlargement of this statute to hold that more than a single penalty was contemplated. A penal statute is not to be enlarged by construction. It would seem clear that the one offering the goods for shipment, or his principal, if he be an agent, would be a party aggrieved, within the terms of this statute. He is the person who, either on his own behalf or on behalf of the owner, has sought to invoke the service. It is his right which is, in the first instance, violated. Can it be said, then, that the plaintiffs, having no further interest than as common carriers, prepared to perform a service in case the freight was shipped and reached the point of connection with their line, have suffered a legal injury, such as excludes the right of the shipper to recover, and transfers the cause of action to them ? We think not.

A somewhat similar question was presented in St. Louis, etc., Packet Co. v. Missouri Pac. R. Co., 35 Mo. App. 272. In that case plaintiff was a common carrier. Goods had been consigned to the plaintiff’s agent. Instead of delivering the goods to the plaintiff’s agent, they were delivered to another carrier, and plaintiff thereby lost the freight which it would have earned. It was held that the plaintiff had no such interest in the contract between the shipper and the first carrier as entitled it to maintain an action. It was said:

“The rule which enables one to sue upon a contract made for his benefit does not, in its very nature, include cases where the contract is made for the benefit of the main contracting parties.”

So in the case of Lafaye v. Harris, 13 La. Ann. 553, under a statute which broadly declared that “every act whatever of man, that causes damage to another, obliges him by whose fault it happened to repair it,” it was held that the refusal of a common carrier to take goods consigned to the plaintiff was a violation of the obligation to the shipper, and not to the consignee, and that an action for damages by the consignee would not lie in such a case.

A case which furnishes persuasive authority in the present is the case of Hadley v. Telegraph Co., 115 Ind. 191 (15 N. E. 845). In that case the court had before it for construction a statute which, in respect to the prohibition of discrimination, is singularly like the statute under consideration in this case. It provided that telegraph messages should be received during the usual office hours, whether from other telegraph lines or from individuals, and should be transmitted upon the usual terms, with impartiality and in good faith, and in the order of time in which they were received. It also prohibited discrimination in rates charged, and in the manner or conditions of service, between any of its patrons. A third section provided that any person or company violating the provisions of the act should be liable “to any party aggrieved” in a penalty of $100 for each offense. It was contended that the expression “any party aggrieved” was broad enough to include as well the person to whom or corporation to which the dispatch was directed, when aggrieved by a noncompliance with the requirements of the act, as the sender of the dispatch. The court applied the well-understood rule that, in construing a statute authorizing the recovery of a penalty, a strict, rather than a liberal, construction ought to be given to its provisions; and, while conceding that the fixed penalty was imposed for the breach of a duty which telegraph companies owe to the public generally, and not as damages for the nonperformance of a contract to properly transmit a dispatch, the court says that nevertheless ‘ ‘ such a breach of duty cannot arise until after a telegraph company has either entered into a contract, or has become obligated to transmit the dispatch,” and holds that the primary object of the statute was to protect the interests of patrons by preventing discrimination between them, and that the person to whom a dispatch is sent cannot become a party aggrieved, in the sense contemplated by the act under consideration; adding, “Any other construction might result in a multiplicity of suits to recover the same penalty.” Our statute more clearly excludes the consignee, for not only is a single penalty provided for each violation, but the damages are given to “ the party aggrieved,” while under the Indiana statute “ any party aggrieved” might recover the penalty.

Having reached the conclusion that these plaintiffs are not entitled to recover the penalty under this statute, it would be premature to discuss the other questions involved in the case. The circuit judge having directed a verdict for the defendant, the judgment will be affirmed, with costs.

Hooker, O. J., Moore and Grant, JJ., concurred. Long, J., did not sit.


author: Moore, J.

text:
    HOFFMAN v. GOLDSMITH.
    Married Women — Contracts—Liability.
    Plaintiffs furnished certain saloon furniture to defendant’s husband, who had leased a store and obtained a license in his own name. The goods were charged to the husband, and statements of the account were made out to him. No evidence was introduced showing that the credit was extended to defendant, or the work done for her. The husband gave his wife a chattel mortgage, and afterwards a bill of sale, of the property in the saloon. They both testified that these were to secure her for money loaned, and that she did not own the saloon and did not order the furniture. The husband testified on another trial that.she was the owner and lessee of the premises. Held, that a verdict should have been directed for defendant.
    Error to Wayne; Frazer, J.
    Submitted April 11, 1902.
    (Docket No. 85.)
    Decided June 27, 1902.

      Assumpsit by Charles Hoffman and others, copartners as the Hoffman Manufacturing Company, against Anna Goldsmith, for goods sold and delivered. From a judgment for plaintiffs, defendant brings error.
    Reversed.

      George C. Green and Bacon & Yerbes, for appellant.

      Henry O. L. Forler and M. M. Nesbitt, for appellees.
   Moore, J.

This case was tried before a jury. The defendant requested the judge to direct a verdict in her favor. He declined to do so. The jury rendered a verdict for $92.20. The case is brought here by writ of error.

The defendant is a married woman. During 1897 the plaintiffs were engaged in the business of manufacturing furniture and fixtures for barrooms and other places of business. Valentine Goldsmith is the name of the husband of defendant. The record shows that March 13, 1897, he leased in his own name No. 37 Cadillac Square, for two years. About April 1st he took out a saloon license in his own name. During the month of April the plaintiffs furnished to him furniture and fixtures for the saloon amounting to $193.20. These items were charged to Valentine Goldsmith on the books of the company, and at least three statements of account were made out to him, headed: “V. Goldsmith, in Account with the Hoffman Manufacturing Company. 1897, April 6. To Mdse., $58.50.” And then followed other items. Payments were made from time to time, but a balance was left unpaid.

This, suit was commenced in June, 1901. About six months before the commencement of the suit, the records-in the city hall were examined by direction of the plaintiffs, and they decided to bring suit against the defendant. In trying to make their case, Mr. Krause, a member of the firm, was sworn. He was not present when the order for the work was given, and there is nothing in his testimony from which it can be fairly inferred that the credit was extended to Mrs. Goldsmith, or that the work was done for her. The fair inference from the testimony is that the work was done for Mr. Goldsmith, and the credit extended to him. A clerk from the office of the city clerk was sworn, by whom it was shown that a chattel mortgage and bill of sale were given. On April 12, 1897, Mr. Goldsmith gave to his wife a chattel mortgage for $600 on the property in the saloon. Mr. Goldsmith and his wife testified it was for borrowed money; and later, when Mr. Goldsmith became the proprietor of the hotel, he gave his wife a bill of sale of the property contained therein, including that in the saloon, for $1,500, which they both testify was to secure her for the $600 and an additional $900 which she loaned him. The testimony of both Mr. and Mrs. Goldsmith was that she was not the owner and had nothing to do with the management of the saloon, and that she never ordered the articles for which the suit was brought, or authorized any one else to do so. Plaintiffs were allowed to show that, in a suit brought in justice’s court in 1901 by Mrs. Goldsmith, Mr. Goldsmith swore she was owner and lessee of the premises.

After a careful reading of the record, we are satisfied there was no evidence showing any liability on the part of Mrs. Goldsmith, and that, under the rule laid down in the following cases, a verdict ought to have been directed for defendant: West v. Laraway, 28 Mich. 464; Russel v. Bank, 39 Mich. 671 (33 Am. Rep. 444); Kenton Ins. Co. v. McClellan, 43 Mich. 564 (6 N. W. 88); Fechheimer v. Peirce, 70 Mich. 442 (38 N. W. 325); Three Rivers Nat. Bank v. Gilchrist, 83 Mich. 253 (47 N. W. 104); Artman v. Ferguson, 73 Mich. 146 (40 N. W. 907, 2 L. R. A. 343, 16 Am. St. Rep. 572); Chamberlain v. Murrin, 92 Mich. 361 (52 N. W. 640); Fisk v. Mills, 104 Mich. 433 (62 N. W. 559).

Judgment is reversed, and new trial ordered.

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


author: Montgomery, J. Grant, J.

text:
    BOETTCHER v. DETROIT CITIZENS’ STREET-RAILWAY CO.
    Street Railways — Collision With Traveler — Negligence—
    Question eor Jury.
    Plaintiff, while driving along a street, in order to pass a buggy-standing next to the curb, without looking back, turned in towards defendant’s tracks, and the front wheel of her buggy was struck by a car going in the .same direction. There was testimony tending to show that she turned when 20 feet from the buggy, and had nearly passed it when struck; that the car was 250 feet away when the turn was made, and could have been stopped within 100 feet. Held, that it was a question for the jury as to whether the motorman could have seen the plaintiff and stopped his car in time to prevent the accident. Grant, J., dissenting.

      Error to Wayne; Carpenter, J.
    Submitted April 25, 1902.
    (Docket No. 136.)
    Decided June 27, 1902.
    Case by Augusta Boettcher against the Detroit Citizens’ Street-Railway Company for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      William Look {Harry F. Chipman, of counsel), for appellant.

      Brennan, Donnelly & Van De Mark, for appellee.
   Montgomery, J.

In this case it appears that, while plaintiff was driving east, the front wheel of her buggy was struck by a car approaching from the west. The testimony shows that she turned in towards the track to pass another buggy standing by the curb. Before this inturn was made, the appearance did not indicate to the motorneer any danger. It is defendant’s contention that the turn was made so suddenly that the motorneer had not time to check the car after discovering plaintiff’s danger, and that the case falls within the case of Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007), and is not within any exception to the rule there laid down. The circuit judge so held.

The evidence tended to show that there was standing by the side of the road a buggy, which made it necessary for the plaintiff to turn in towards the track, and that she did in fact turn in. One witness testified that she turned in towards the track when she was about 20 feet from the other buggy, and that at this time the car which came in contact with her was half a block away. The- block, according to the offer of proof, treated as made, was 500 feet in length, and the plaintiff offered to show that the car could be stopped on that track within 100 feet. It is true that one witness was made to state, on cross-examination, that from the time plaintiff turned in on the track until she was struck did not take very long, and, in answer to'the question, “Wasn’t it instantly, almost?” replied that it was. The examination was attempted of another witness upon this subject, on cross-examination, when the following occurred:

Q. If she was midway between the curb and street-railway track, how did she get within a foot of the track ?
A. When the car struck her, she was pretty well past this other buggy, and she had to come near to the track.
“Mr. Brennan: I don’t want that.
“Mr. Humphrey: I object.
“The Court: Ask another question.”

The circuit judge held that the plaintiff was guilty of negligence in going so near the track without looking for the approaching car. We think the question whether the plaintiff was in position to have been seen by the motorneer a sufficient length of time to have enabled him to stop the car was a question for the jury. See Tunison v. Weadock, 130 Mich. 141 (89 N. W. 703), and cases cited; Quirk v. Railway, 130 Mich. 654 (90 N. W. 673).

Judgment reversed, and a new trial ordered.

Hooker, C. J., and Moore, J., concurred with Montgomery, J.

Grant, J.

(dissenting). I think the learned circuit judge properly directed a verdict for the defendant, within the former decisions of this court. Plaintiff herself testified that, when she began to turn towards the track, she was only five or six feet from the stationary buggy, and that, when she turned in towards the track, she did not look to see whether a car was coming. In reply to a question she said: “I could not see; I got-my phaeton] how can I look back ? My phaeton was up; how can I look back ?” She must have known that she was suddenly turning within the path of the approaching car. When one does that, he should be held to the same duty to look as when he intends to cross the track.

A motion for a new trial was made, when the circuit judge filed a written opinion which, in my judgment, is so convincing that I quote it with approval:

“A new trial is asked in this case on the ground that I erred when on October 16, 1896, I directed a verdict for the defendant. In determining this question, the most favorable view possible to plaintiff should be taken of the testimony. According to that view, plaintiff, seated in a covered phaeton, drove from Riopelle street on the north side of Gratiot avenue. She looked at this point, and saw no car coming from either direction' on Gratiot. She then crossed the tracks, and drove slowly in an easterly direction on the south side of Gratiot until she reached the middle of the block between Riopelle and Orleans streets. At this point, which, according to the testimony, is about 250 feet from Riopelle street, a vehicle was hitched to the south curb. ‘ It was up the same as a horse would be that was tied and brought up to the curbstone,’ testified Mr. Yonderheide, plaintiff’s witness, who is the only witness who testified on that subject. When plaintiff reached this vehicle at a distance testified by plaintiff to be five or six feet, and by one of her witnesses twenty or thirty feet, she turned north towards the south rail of the track to pass this vehicle. At this time one of the defendant’s cars was approaching from the west at the rate of 15 miles an hour, and was, according to one of plaintiff’s witnesses, 20 feet, and, according to another, half a block, away. While plaintiff was passing said vehicle, or just after she passed it, the running-board of said car, of whose approach said plaintiff was not warned, collided with the forward wheel of her phaeton, the phaeton was overturned, and plaintiff injured. It is not claimed that plaintiff made any observation after she left Riopelle street, and the evidence, in my judgment, conclusively proves that she did not, to ascertain if any car was approaching from the west. The distance from the south track to the south curb is 15£ feet, and the gauge of an ordinary vehicle is conceded to be four feet eight inches.
“Plaintiff was guilty of contributory negligence in voluntarily driving where her vehicle was in the path of the approaching car, without making any observation. Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007). It is said that the Fritz Case is practically overruled by Ryan v. Railway Co., 123 Mich. 597 (82 N. W. 278). I cannot agree. I think, if the Supreme Court intended to overrule a case which it has repeatedly approved, the public and profession would have explicit notice. In the Ryan Case it was held that it was not, as a matter of law, negligent for a person, to attempt to cross a track when he had by observation ascertained that no car was within 70 or 80 feet. In tnis case' plaintiff drove 250 feet after she had made her last observation before attempting to cross the track. While plaintiff went this 250 feet at the rate of three miles an hour, which is estimated to have, been her rate of speed, the car which struck her, and which was going at the rate of 15 miles an hour, would have moved 1,250 feet. The observation she made at Riopelle street gave her no right to believe no car was within 1,250 feet. That observation afforded no more protection than as if it had been made the day before. It counted for nothing. It did not bring her case under the principle of the Ryan decision. It left it governed by the principle of the Fritz Case.
“ It is argued that there was evidence from which the jury could have found that the contributory negligence of the plaintiff was not a proximate cause of her injury. It is urged that the motorman had an unobstructed view of plaintiff, and should have seen that, unless the car was checked, there would be a collision. A careful examination of the testimony convinces me that there is no evidence from which it can be inferred that the motorman should have seen that, unless the car was stopped, a collision would result, long enough before it occurred to prevent it. Plaintiff’s vehicle was not in a position to be struck by the car long before the collision occurred. Plaintiff testifies that she was a distance estimated to be five or six feet from the stationary vehicle when she turned to pass it, and that she was struck before her buggy had entirely passed said stationary vehicle. Her witness Koehn says she was struck ‘ instantly almost ’ after she turned in on the track. Her other witness, Yonderheide, says that plaintiff was about 20 feet ahead of the car when he first saw her (she was then in the middle of the space between the curb and the south track), that the gong was sounded eight or ten feet away from her, and that the brakes were applied a moment before the collision occurred. Of course, these estimates of time and distance are not accurate; but, accurate or inaccurate, the testimony of these witnesses — - and theirs is all the testimony on the subject, for I cannot regard plaintiff’s affidavit, which is not consistent with her testimony nor with that of her witnesses- — does not justify the inference that plaintiff’s vehicle was in the path of the approaching car for any appreciable time before the collision. Nor can that inference be drawn from the fact that the point of collision was the left forward wheel of the phaeton just as it was turned towards the curb. This fact proves that the forward wheels were nearer the track than the hind wheels. It does not prove, what is denied by plaintiff’s witness Koehn, that the wheels had been nearer, or in this position, until that instant.
“It will not do to argue that the motorman should have commenced to check the car when plaintiff attempted to pass the horse and vehicle tied on the south side of Gratiot avenue, and that his failure so to do was such negligence as to make defendant liable notwithstanding the contributory negligence of plaintiff. As already shown, plaintiff, to pass the stationary vehicle, did not pass upon the street-railway track. She was only sufficiently near to collide with its projecting running-board. It was 15i- feet from the curb to the nearest rail of the track. That stationary vehicle seems to have been close to the curb, and that, as well as plaintiff’s phaeton, was less than five feet in width. As testified by plaintiff’s witness Koehn, there was room for these two vehicles, if properly driven, ‘side by side, to let the car go by.’ To pass the stationary vehicle, the evidence fails to show that it was necessary for plaintiff to drive upon the path of the approaching car. The collision could have been averted as well by plaintiff keeping close to the stationary vehicle as by defendant’s motorman checking the car. It was certainly as much negligence for plaintiff to needlessly drive her phaeton in the path of the approaching car as for the motorman to neglect to check the car’s speed. The duty of the motorman to check the car’s speed was by no means the same as it would have been had it been apparent that, to pass the stationary vehicle, plaintiff must pass upon his track. The motorman had the same right to rely on plaintiff’s keeping away from the track as plaintiff had to rely on his checking the car. In no sense was plaintiff’s negligence remote and defendant’s proximate. If defendant was negligent at all, plaintiff was negligent at the same time and in an equal degree. If defendant’s negligence caused the collision, plaintiff’s negligence equally caused it. The principle upon which the plaintiff’s negligence is adjudged remote, and the defendant’s proximate, is, as I understand, that, at a time after plaintiff was negligent, plaintiff could not, but defendant by due care could, have prevented the injury. There never was a time, when due care on the part of the defendant would have prevented the injury in question, that plaintiff could not also by due care have prevented it.
‘ ‘ It follows that the motion for a new trial should be denied ”

I do not think the case of Tunison v. Weadock, 130 Mich. 141 (89 N. W. 703), controls this case. The prevailing opinion in that case appears to be based largely k upon the fact that the plaintiff was riding in a beaten path which “took him and his conveyance very near to the car track,” and that the evidence did not conclusively show that the driver of the vehicle suddenly turned towards or across the track.

Long, J., did not sit.


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    LILLIS v. PENNSYLVANIA CASUALTY CO.
    Attorney and Client — Employment — Services Rendered— Interest in Litigation.
    A railroad company, being sued for an accident, forwarded the declaration to an indemnity company, whose policy it held. The declaration was delivered to the general attorneys for the indemnity company, who were also local attorneys for the defendant casualty company. These attorneys wrote plaintiff, also an attorney, that the railroad company was insured in the defendant company, and directed him to appear and defend, the suit. Plaintiff entered his appearance and rendered some services, corresponding thereafter with the indemnity company, to which he at one time presented his bill. Held, that, since defendant was not interested in the litigation, and plaintiff was not employed by defendant nor by any one authorized by it to hire him, he could not recover for his services.
    Error to Oakland; Smith, J.
    Submitted April 25, 1902.
    (Docket No. 41.)
    Decided June 27, 1902.

      Assumpsit by Michael F. Lillis against the Pennsylvania Casualty Company for services rendered. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Graves & Hatch, for appellant.

      George E. Beardslee (A. It. Tripp and ií. H. Colvin, of counsel), for appellee.
   Moore, J.

The plaintiff is an attorney at law. He brought this suit to recover $265.20 for services rendered and for expenses incurred by him, which he claims defendant should pay. The case was tried by a jury, who rendered a verdict for $193.50. The case is brought here by writ of error.

The defense claimed is: First, that plaintiff was never employed by defendant; second, that, when the case which Mr. Lillis was employed to defend was about to be tried, he abandoned it, without cause, making it necessary to employ another attorney, who did not have time to familiarize himself with the case before it was brought to trial, and the service rendered by Mr. Lillis was of no value. In our view of the case, it will not be necessary to express any opinion in relation to the second of these defenses.

The record discloses that in December, 1899, one Erard was injured on the Detroit & Pontiac Railway. At this time the railway company had a policy in the American Mutual Indemnity Company insuring it against loss by reason of such accidents as Erard claimed to have suffered. A similar policy was taken by the railway company in the Pennsylvania Casualty Company, January 1, 1900. In June or July, 1900, Mr. Erard sued the railway company. The declaration commencing suit was forwarded by the railway company to Mr. Kingsbury, who was assistant to the president of the American Mutual Indemnity Company and secretary of the Pennsylvania Casualty Company, living at Scranton, Pa. The declaration was delivered to Watson, Diehl & Kemmerer, who were the general attorneys of the American Mutual Indemnity Company, and local attorneys of the Pennsylvania Casualty Company. Mr. Watson, of this firm, was president of both companies. He was absent from home at this time, and Mr. Diehl, assuming the Pennsylvania Casualty Company was interested in the litigation, sent the declaration by letter to Mr. Lillis, writing him, in the name of Watson, Diehl & Kemmerer, that the railway company was insured in the Pennsylvania Casualty Company, of which his firm were the general attorneys, and directing him to appear in the case, and make a defense. Mr. Lillis entered an appearance in the case, and looked after it, and employed an officer to look up the testimony. Afterwards he did all his correspondence with the American Mutual Indemnity Company, and before bringing suit presented his bill to that company, explaining his action in doing so by saying that he had mislaid the letter from the attorneys inclosing the declaration, and, having attended to a suit of like character before, in which the American Mutual Indemnity Company was looking after the litigation, he supposed it was doing so in this case. Later, Mr. Lynch, who had attended to other business for the railway company, received the following letter:

“Detroit & Pontiac Railway Co., Detroit.
“Office, 217 Hammond Building.
“Detroit, Mich., September 21st.
“James H. Lynch, Esq.,
“Pontiac, Mich.
Dear Sir: The Pennsylvania Casualty Company has requested us to take active interest in the Erard matter, and I suppose they have written Mr. Lillis to the same effect. Will you please consult with him, bringing up the matter especially of improving the strength of the medical testimony?
“Yours truly,
“Strathern Hendrik,
“Manager.”

After receiving this letter he showed it to Mr. Lillis, and sought to have a consultation with him. Mr. Lillis took offense at this condition of affairs, and at once wrote to the attorneys who had sent him the declaration, and also to the American Mutual Indemnity Company, withdrawing from the case. Upon receipt of the last-named letter the following telegram was sent:

“Scbanton, Pa., Sept. 24, 1900.
“M. F. Lillis, Esq.,
‘ ‘ Pontiac:
I do not understand your letter. Want you to take care of the Erard case. See Kingsbury at the Russell House. ■ W. W. Watson.”

Upon receipt of this telegram Mr. Lillis went to the Russell House, but, as Mr. Kingsbury had gone to Pontiac, they failed to see each other. The result was that Mr. Lillis gave Mr. Lynch such papers and files as he had, and the députy sheriff co-operated with Mr. Lynch, who tried the case. Mr. Lillis did not participate in the trial, which commenced September 26th, and resulted in a very considerable verdict against the railway company. Mr. Lillis presented his bill to, and had some correspondence with, the American Mutual Indemnity Company; and later, having found the letter in which the declaration was sent to him, and being unable to effect a settlement, instituted this suit.

The record is very clear that the Pennsylvania Casualty Company was not the successor to, and did not assume the liabilities of, the American Mutual Indemnity Company. It is also clear it was not interested in the litigation between Mr. Erard and the railway company. It is equally clear that there is an entire failure to show a hiring of Mr. Lillis by the defendant company, or by any one authorized by it to hire him. Mr. Lillis no doubt performed active and valuable services, and acted in good faith. There seems to have been an unfortunate mistake all around as to the relations of the parties to each other. It is probable, had not this mistake occurred, there would have been no trouble, and no occasion for this litigation; but, under the rule of law putting the burden of proof upon Mr. Lillis to make his case, we think it was the duty of the court to direct a verdict in favor of the defendant.

The judgment is reversed, and a new trial ordered.

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


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    KERRIGAN v. POOLE.
    1. Mackinac Island State Park — Jurisdiction of State —
    Authority of Park Commission.
    The jurisdiction of the State over the lands now constituting the Mackinac Island State Park is dependent entirely on the act of Congress of March 2, 1895 (28 Stat. 946), turning the same over to it for parís: purposes; and the State has seen fit to commit the management and control of such property to a park commission, provided for by 1 Comp. Laws, §§ 1258, 1259, rather than to the municipality within whose territorial limits it is situated.
    2. Same — Vehicles—License Fees.
    By virtue of the authority so conferred, such commission has power to impose license fees upon the owners of carriages for hire, using the roads in the park.
    Error to Mackinac; Shepherd, J.
    Submitted June 4, 1902.
    (Docket No. 59.)
    Decided June 27, 1902.

      Assumpsit by Patrick Kerrigan against Samuel B. Poole, superintendent of the Mackinac Island State Park, to recover license fees paid under protest. From a judgment for plaintiff, defendant brings error.
    Reversed.

      T. J. O'Brien, J. H. Campbell, and Henry Hoffman, for appellant. ■

      James J. Brown, for appellee.
   Moore, J.

The defendant is superintendent of Mackinac Island State Park. In June, 1901, the commissioners having charge of that park adopted the following resolution :

“Resolved, that the park superintendent be authorized and directed to collect a license fee from each driver of vehicles used for hire, as follows: One dollar yearly for each one-seated carriage, two dollars yearly for each two-seated carriage, and three dollars yearly for each three-seated carriage.”

In the summer of 1901 Mr. Kerrigan was the owner and driver for hire of one two-seated carriage and of one three-seated carriage, and on demand of Mr. Poole, superintendent, and under protest, paid license fees amounting to $5 for the carriages owned and driven by him. Mr. Kerrigan had before this paid a license fee exacted of him by the authorities of the city of Mackinac Island. The sole question is whether the commission having charge of this park has the right to collect fees from owners of carriages for hire, using the roads running through the park.

Mackinac Island contains about 2,200 acres, about half of which is contained in this park. The title to the land contained in the park has for a great many years been in the government of the United States. There has been the following legislation in relation to these lands:

An act of Congress of March 3, 1875 (18 Stat. 517), by which all of the island of Mackinac then held by the United States, under military reservation or otherwise, excepting the fort, and the land extending 400 yards each way from the flagstaff, was reserved and withdrawn from settlement, and dedicated and set apart as a national park, under the control of the secretary of war.

An act of Congress of March 2, 1895 (28 Stat. 946), to turn over to the Statfe, for use as a State park, the lands of the National Park on Mackinac Island, which provided:

“Military Reservation on Mackinac Island, Michigan) The secretary of war is hereby authorized, on the application of the governor of Michigan, to turn over to the State of Michigan, for use as a State park, and for no other purpose, the military reservation and buildings and the lands of the National Park on Mackinac Island, ■Michigan: Provided, that, whenever the State ceases to use the .land for the purpose aforesaid, it shall revert to the United States.”

An act of the legislature of the State of Michigan of May 31, 1895, accepting the park, and establishing a board of commissioners, to be known as the “Mackinac Island State Park Commission,” and providing that the -commission should have the control and management of the Mackinac Island State Park. 1 Comp. Laws, §§ 1257-1260.

In 1865 the legislature incorporated the village of Mackinac, which included within its limits the entire island. In June, 1899, the legislature incorporated the city of Mackinac Island; giving to it the same area .the village had, and conferring the usual powers conferred upon cities.

We are satisfied the State never had any jurisdiction or night over' the land in the park and military reservation -until after the passage of the act of Congress of March 2, 1895, by which the park was turned over to the State. By •the act of Congress of March 2,1895, the secretary of war was authorized to turn over to the State of Michigan these lands for use as a State park, and for no other purpose; and it was provided that, whenever the State ceased to use the land for that purpose, it should revert to the United States. ‘The State has no other right to the land. It became possessed of it for use as a park, with all the powers and rights incident thereto — of control, maintenance, improvement, and regulation — that the government itself would have if the land continued to be a national park. We think the commission did not exceed its authority in requiring this license fee to be paid.

The judgment is reversed, and no new trial ordered.

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


author: Hooker, C. J.

text:
    CORYELL v. HOTCHKISS.
    Equity — Specific Performance — Deceit.
    Equity will not decree the specific performance of a land contract in favor of one who has obtained it through deceit.
    Appeal from Saginaw; Beach, J.
    Submitted June 4, 1902.
    (Docket No. 5.)
    Decided June 27, 1902.
    Bill by Mabel A. Coryell against Philo P. Hotchkiss and Georgiana Hotchkiss for the specific performance of a land contract. Prom a decree for complainant, defendants appeal.
    Reversed.

      C. L. Collins, for complainant.

      Nathan S. Wood, for defendants.
   Hooker, C. J.

The defendants have appealed from a decree requiring them to specifically perform a contract for the sale of land. The question is one of fact, and requires no discussion. We are satisfied that the contract was procured by complainant’s brother through deceit, and that she is not equitably entitled to specific performance. We agree, however, that the complainant acquired a valid title to the mortgage upon said premises, as against the defendants, by virtue of the assignment of the same.

The decree is reversed, and the bill is dismissed, with costs.

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


text:
    MEAD v. MEAD.
    Divorce — Evidence—Appeal.
    A decree dismissing a bill for divorce, held to have been justified by the testimony.
    Appeal from Calhoun; Winsor, J.
    Submitted June 6, 1902.
    (Docket No. 28.)
    Decided June 27, 1902.
    Bill by Sarah A. Mead against Carey A. Mead for a divorce. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Miller & Miller (Clement Smith, of counsel), for complainant.
   Hooker, C. J.

We are of the opinion that the decree of the learned circuit judge, dismissing the complainant’s bill, was justified by the testimony, and should not be dis-' turbed. As the case involves no disputed question of law, it is unnecessary to say more.

The decree is affirmed.

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


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    MILLER v. PARKE’S ESTATE.
    Subscriptions — Construction.
    A subscription to the endowment fund of a diocese in the following form: “Payable at my death, provided for in my will, and agreement to pay interest on same at 6 per cent, semi-annually from the date that §50,000 is subscribed, §2,500,” — is an unconditional subscription of §2,500, payable at death.
    Error to Wayne; Rohnert, J.
    Submitted June 6, 1902.
    (Docket No. 34.)
    Decided June 27, 1902.
    Albert E. Miller, treasurer of the diocese of- Marquette, presented a claim against the estate of Hervey C. Parke, deceased, for the amount of a subscription. The claim was disallowed by the commissioners, and claimant appealed to the circuit court, where verdict was directed for defendant. Claimant brings error.
    Reversed.

      Gray & Gray, for appellant.

      Wells, Angelí, Boynton &, McMillan, for appellee.
   Hooker, C. J.

At the triennial convention of the Protestant Episcopal Church of the United States held at Minneapolis in October, 1895, provision was made for the diocese of Marquette, at which time proof of the necessary endowment fund was furnished to the “house of bishops.” This included the first subscription of Mr. Parke, hereinafterment-ioned. This first subscription was for $2,500, and was upon the conditions named at the head of the-paper. It was followed by this writing, viz.: “H. C. Parke, on same conditions as named by Peter White, above mentioned, twenty-five hundred dollars ($2,500).” The subscription referred to was:

“Peter White, Marquette, Mich., upon following conditions, viz.; Additional to $2,500, payable at my death, provided for in my will, and agreement to pay interest on same at six per cent, semi-annually from the date that fifty thousand dollars is subscribed, $2,500.”

The defendant asserts that this should be construed as a promise to pay $2,500 at the death of the subscriber, provided that the sum of $50,000 should be subscribed within a reasonable time, and before death. We are of the opinion that it was not conditioned upon the subscription of $50,000, but was an unconditional subscription of $2,500, payable at death. We think it is not affected by the statement that it shall be' mentioned in the subscriber’s will.

The order of the circuit court is reversed, with costs, and the cause remanded for further proceedings.

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


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    BICE v. WALKER.
    Sale — Breach of Warranty — Reco'hpment.
    Plaintiff sold defendant a restaurant, including a soda fountain that had been but partly paid for, the title to which remained in the vendor. A bill of sale was executed in the usual form, but stating that $200 was unpaid on the fountain, which defendant was to pay. Defendant soon learned that more than that amount was unpaid, but did not attempt to rescind the sale; nor did he make any payments on the fountain, which was retaken by the vendor. Held, that he could not complain of a judgment against him for the balance of the purchase price of the restaurant, less the difference between the 8200 he had agreed to pay on the fountain and the amount for which he could have settled with the vendor.
    Error to Ionia; Davis, J.
    Submitted June 11, 1902.
    (Docket No. 61.)
    Decided June 27, 1902.

      Assumpsit by Dora Bice against John W. Walker to recover the balance of the purchase price of certain chat-, tels. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      R. A. & W. JE. Hawley, for appellant.

      Chaddock & Scully, for appellee.
   Moore, J.

Plaintiff sued to recover $300 and interest. The case was tried by the circuit judge, who made findings of fact and law, and entered a judgment in favor of plaintiff for $222.18. The case is brought here by writ of error.

The record discloses that in October, 1897, plaintiff sold defendant her restaurant and bakery for $500. There was at this time in the restaurant a soda fountain bought of one Zwietusch for $450, the title to which was to remain in him until paid for, and two soda founts bought of Tufts for $60, the title to which was not to pass until paid for. The plaintiff gave defendant a bill of sale in the usual form. These soda founts and the soda fountain were included in the list of articles mentioned in the bill of sale. The closing part of the bill of sale was as follows:

“In witness whereof I have hereunto set my hand and seal this 9th day of October, A. D. 1897.
“There is $200.00 yet to pay on soda fountain, which Mr. Walker is to pay.
“Dora Bice. (L. S.)”

The defendant did not sign this bill of sale. He paid $40 at the date of the bill of sale. October 23, 1897, he accepted an order given Mr. Dehn for $120, due, $40 on December 9th, January 9th, and February 9th. These amounts he paid with another payment, making $200 paid in all by him. The two soda forints were taken from him on the 12th day of November. He knew as early as the 1st of December that Mr. Zwietusch claimed there was more than $200 due on the soda fountain, and had some correspondence with him about a settlement of his claim. December 9th Mr. Zwietusch accepted an offer made by-Mr. Walker, but for some reason it was not carried out. December 18th he offered to accept $217.82 as the balance due him on the soda fountain. This was not paid, nor was any payment made by Mr. Walker to apply on the soda fountain. In the latter part of February or the first of March it was taken away by Mr. Zwietusch. When Mr. Walker learned the situation as to the soda founts and the soda fountain, he did not attempt to rescind the shle and return the property to Mrs. Bice, and he has never returned any part of it to her. He did not pay Mrs. Bice the $300 she claimed was due her, and this suit was brought to recover that amount.

Upon the trial Mrs. Bice sought to show that Mr. Walker was informed, at the time the bill of sale was drawn, that nothing had been paid on the two soda founts, but the court refused to permit her to do so. Upon the trial it did appear that Mr. Walker was informed that the payments made upon the soda fountain were represented by notes, which were taken up at the time the several payments were made, all of which notes were, at the time the bill of sale was drawn, delivered to Mr. Walker, so that, if he had looked over these notes, he was fully advised of the amount of payments which were actually made. It was the claim of plaintiff that Mr. Walker was told the amount remaining unpaid was $200 and the interest. It is the claim of defendant that, as the bill of sale represented the title of the soda founts and the soda fountain to be in the plaintiff, and but $200 was unpaid upon the soda fountain, when it appeared this was not so there was a breach of the contract, and defendant was not obliged to pay more than $200 upon the soda fountain, and if, as a result of his refusal to do so, the soda fountain was taken away from him, that he could recoup the value of the soda founts, $60, and the value of the soda fountain less the $200, which would be $250, amounting in all to $310; and, as this was more than the $300 unpaid to Mrs. Bice, a judgment should have been rendered in his favor. The circuit judge held that Mrs. Bice was bound by the statements contained in the bill of sale, and refused to consider the oral testimony as to what was told to Mr. Walker. He allowed the defendant, by way of recoupment, $60, the value of the two soda founts, and also allowed him the difference between the $200 he had agreed to pay and the' $217.82, for which Mr. Walker could have settled with Mr. Zwietusch.

As the plaintiff has not appealed, we are not called upon to decide whether the court erred in refusing to consider the oral testimony, but we are all agreed that defendant has no reason to complain of the result reached by the circuit judge.

Judgment is affirmed.

Hooker, C. J., Grant and Montgomery,- JJ., concurre^. Long, J., did not sit.


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    CARPENTER v. WOOD.

    Estates of Decedents — Administration—Creditors—Disputed-Claim.
    Under 3 Comp. Laws, § 9324, providing that, in case of the neglect of the widow and next of kin of an intestate to apply for administration within 30 days after his death, the same may be granted to a creditor, if competent and willing to take it, evidence that the claim of a petitioning creditor was disputed by the widow, by reason of which much feeling had arisen between them, was sufficient to justify a finding that the creditor was not a competent and suitable person to appoint as administrator.
    Case made from Kent; Perkins, J.
    Submitted June 4, 1902.
    (Docket No. 8.)
    Decided July 1, 1902.
    Frank L. Carpenter petitioned the probate court for his appointment as administrator of the estate of Samuel S. Wood, deceased. The petition was denied on a contest made by decedent’s widow, Loretta R. Wood, and petitioner appealed to the circuit court, where the order of the probate court was affirmed, and he again appeals.
    Affirmed.

      Frank L. Carpenter, in pro. per.

      Dunham & Malcolm, for appellee.
   Moore, J.

Mr. Samuel S. Wood died, leaving a small estate. His widow did not apply for administration of his estate. After about 50 days had elapsed, Mr. Carpenter, who claimed to be a creditor, petitioned for the appointment of himself or some other person as administrator. Mrs. Wood was opposed to the appointment of Mr. Carpenter. She claimed the estate was not indebted to him. The probate judge was of the opinion that, because of his interest and the feeling between the widow and Mr. Carpenter, the latter was not a suitable person to be appointed administrator, and appointed Mr. Kirwin. Mr. Carpenter appealed to the circuit court, where the case was tried without a jury. The circuit judge affirmed the action of the probate judge, and Mr. Carpenter has brought the case here.

Upon the trial in the circuit court the probate judge was sworn as a witness, and testified:

“I think I made it plain in the disposition of the matter, to both counsel, that the reason I declined to appoint Mr. Carpenter was that in view of the difference existing between him and the widow over the status of his claim, and the enmity between them, and the dispute between them, that it was improper for either party, either, creditor or widow, to be appointed administrator of the estate. That was the contest on the final hearing.”

Mr. Carpenter was also sworn, and testified that he had Mr. Wood’s note for $175, upon which $35 had been paid, and that the balance was due and unpaid.

Mrs. Wood was sworn, and testified that, shortly before the death of her husband, she heard a talk between him and Mr. Carpenter, in which—

“Mr. Wood said he was not going to take the piano, because it was not as recommended; that he could take the piano out, and he would call it square with him on account of what he had paid. Mr. Carpenter said he would take it out as soon as he could find a place for it, and in the meantime for us to try and dispose of it, and he would do the same. Mr. Carpenter’s claim arose from the sale of that piano to my husband. I don’t claim that he owes him anything.”

There is a direct conflict between the widow and Mr. Carpenter. The circuit judge, among other things, found:

‘ ‘ Mr. Carpenter claims to be a creditor of said estate, and said widow denies that said estate is indebted in any sum whatever to said petitioner, and by reason of such claim much feeling has arisen between said claimant and said widow; and by reason thereof I find that said petitioner is not a competent and suitable person to administer said estate in its interests and the interests of the creditors of said estate, and that the said Joseph Kirwin is a competent and suitable person to perform the duties of administrator of said estate.”

It is claimed' in this court there was no testimony justifying this finding; that Mr. Carpenter is not disqualified, and, because the widow did not ask for administration within 30 days after the death of Mr. Wood, that Mr. Carpenter, as a matter of right, is entitled to letters of administration.

This court does not have the advantage which the probate judge and the circuit judge possessed in seeing the witnesses, their manner and conduct in giving testimony, but the record discloses an abundance of evidence upon which to base the action of the circuit judge. See 3 Comp. Laws, § 9324; Wilkinson v. Conaty, 65 Mich. 614 (32 N. W. 841).

The judgment is affirmed.

Hooker, C. J., and Montgomery, J., concurred. Grant, J., took no part in the decision.


text:
    BARBER v. EBERLE’S ESTATE.
    Married Women — Contracts—Employment op Nurse.
    A married, woman whose husband has transferred to her the homestead and the personal property about the house, and agreed to pay her $100 per year during her life,, in consideration of the release of her dower and all claims, present and future, to his property, is competent to make a valid contract for the employment of a nurse for herself, although her husband is still living with her.
    Error to Wayne; Frazer, J.
    Submitted June 4, 1902.
    (Docket No. 64.)
    Decided July 1, 1902.
    Mary Barber presented a claim against the estate of Margaret Eberle, deceased, (for services rendered. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for claimant, defendant brings error.
    Affirmed.

      John D. Gonely, for appellant.

      Hang & Yerkes, for appellee.
   Moore, J.

The claimant presented a claim for services as nurse to Mrs. Eberle. This claim was disallowed by the commissioners, hut was allowed by a jury in the circuit court. The case is brought here by writ of error.

It is contended that as Mrs. Eberle was a married woman, whose husband and she were living together when the services were rendered, and as the claimant did some housework as well as nursing, Mrs. Eberle was not liable; that, even if there was a contract of hiring as claimed, it was not such a contract as could be made by a married woman.

The record shows that, some years prior to the time these services were rendered, Mr. Eberle deeded to his wife the house and lot where they then lived, and made to her a bill of sale of the personal property in and about those premises, and agreed to pay her $100 a year during her life. At the same time she executed, a release of all dower rights and of all claims she had or might have to all property he then had or might thereafter acquire, both real and personal. At the same time he gave her a bond, secured by mortgage, to secure the payment of the $100. A marginal discharge was afterwards made of this mortgage.

The claimant contends the contract was made with Mrs. Eberle to render to her services as á nurse, and Mrs. Eberle agreed to pay her; that the services were rendered for her; that after the arrangement was made between Mr. and Mrs. Eberle,' mentioned above, it continued in fore©; and that it was entirely competent for Mrs. Eberle to make the contract she did. The defendant insists the circuit judge ought to have directed a verdict in favor of defendant. The judge declined to do so, but submitted the case to the jury under instructions in relation to the law which are justified by the rulings in the following cases: Hirshfield v. Waldron, 83 Mich. 116 (47 N. W. 239); Meads v. Martin, 84 Mich. 306 (47 N. W. 583); Mosher v. Kittle, 101 Mich. 345 (59 N. W. 497); Goodman v. Shipley, 105 Mich. 439 (63 N. W. 412); Foster, Charles & Ewen Co. v. Felcher, 119 Mich. 353 (78 N. W. 120).

Judgment is affirmed.

Hooker, . C. J., and Montgomery, J., concurred. Grant, J., took no part in the decision.


text:
    WHITE v. SCHABERG.
    1. Appeal — Evidence—Objection—Executor’s Bond.
    On appeal from a judgment upon an executor’s bond given on the sale of real estate, the question whether it was error to admit the bond in evidence, for the reason that no authority was shown for bringing suit on the bond, cannot be raised under an objection to the bond on the ground that no suit had previously been brought on the executor’s general bond.
    2. Same — Findings—Exceptions.
    Where no exceptions are taken to findings of fact made by the trial judge, assignments of ’error based thereon will not be considered.
    3. Same — Assignments op Error.
    An assignment of error upon the finding that judgment should be entered for plaintiff is equivalent to an assignment that the findings do not support the judgment.
    4. Executor’s Bond — Sale op Real Estate — Action.
    An action on the general bond of an executor is not a prerequisite to a suit on a bond given by him on the sale of real estate.
    Error to Kalamazoo; Adams, J.
    Submitted April 9, 1902.
    (Docket No. 27.)
    Decided July 1, 1902.

      Assumpsit by James E. White, judge of probate of Kalamazoo county, for the use and benefit of Henry L. -Chipman, against Herman H. Schaberg, impleaded with Lawrence N. Burke, executor, etc., and Patrick H. Burke, upon an executor’s bond. From a judgment for plaintiff, ■defendant brings error.
    Affirmed.

      N. H. Steivart, for appellant.

      Moore & Goff and Howard, Boos & Howard, for appellee.
   Montgomery, J.

This is an action against the principal and sureties on a bond given on a sale of real estate made by authority of an order of the probate court by an executor, the principal on the bond in suit. Under the record as presented to us, we find it impossible to deal with most of the points made in the brief of counsel for appellant.

It is first contended that there was error in receiving the-bond in evidence, and in basing judgment upon it, for the reason that no authority was shown for bringing suit upon the bond. The court found as a fact, however, that such authority had been duly and regularly given, and no exception to this finding of fact appears in the record. Unless the point is made, therefore, by an exception to the introduction of testimony, the question is not properly before us. The introduction of the bond in question was objected to, it is true, but the objection was put upon the-distinct ground that no suit or proceeding had previously been brought against the principal or bondsmen on the general bond of the executor, and that action could not be brought upon this bond until a suit had first been brought upon the executor’s general bond. No other point was suggested by the objection, and the exception must be. limited to the ruling upon the objection made. Detzur v. Brewing Co., 119 Mich. 286 (77 N. W. 948, 44 L. R. A. 500).

The brief of defendant’s counsel also attacks certain of the special findings of the court. The record shows no exception to these findings. Under Cir. Ct. Rule 26 it is settled by repeated decisions of this court that the record will not be examined for the purpose of ascertaining whether the testimony supports the findings of fact, unless the findings are excepted to under the rule. Haines v. Saviers, 93 Mich. 440 (53 N. W. 531); Robards v. Waterman, 96 Mich. 233 (55 N. W. 662).

It is, of course, competent for the appellant to assign as error that the findings do not support the judgment. While there is no such distinct assignment in terms, yet, as error is assigned upon the finding concluding that judgment should be entered for plaintiff, we think it sufficiently raises the question as to whether, upon the findings, the plaintiff is entitled to judgment; and, as there is no finding that any suit had been brought against the sureties on the original bond of the executor, the meritorious question in the case is fairly presented for our consideration. Both counsel rely upon the case of Durfee v. Joslyn, 92 Mich. 211 (52 N. W. 626). The appellant contends that, under the authority of that case, the bond here in suit is an additional security, and that the primary obligation is upon the general bond of the executor; and deduces from that the conclusion that, until the remedy upon the executor’s general bond is exhausted, no action can be maintained upon the bond in suit. We do not so construe the holding of the court in that case. It is distinctly stated in that case by Mr. Chief Justice Morse that “the representatives of the estate are entitled to recover upon both bonds, with the only limitation that they cannot recover more in both suits than the whole amount due from the administrator, and no greater sum upon the special bond than has been realized from the sale of real estate under it.” It is true that the special bond is referred to as an additional security, which does not supersede the general bond; but, had the term “cumulative security” been employed, it would have been equally apt, as appears by the holding above quoted. We think the circuit judge was right in holding that an action upon the executor’s bond was not a prerequisite to the maintenance of the suit upon the present bond.

As this is the only question which it is open to the appellant to raise upon the present record, and the court rightly ruled this, the judgment will be affirmed, with costs.

Hooker, C. J., and Moore, J., concurred. Grant, J., took no part in the decision.


text:
    PETERS v. UNION TRUST CO.
    Banks — Insolvency—Commingling of Savings and Commercial Deposits — Rights of Savings Depositors to Mortgages.
    Under 2 Comp. Laws, § 6118, — providing that a bank doing a commercial and a savings business shall keep separate books for each kind of business, and that all investments for the savings department shall be kept distinct from other business, and, together with the unloaned savings deposits, shall be held solely for the payment of the savings depositors, — where such a bank becomes insolvent, and it appears that there has been a commingling of the funds, but the books show the amount received by the savings department, and the reports to the banking commissioner show the amount of savings deposits invested in bonds and mortgages, such securities should, be held for distribution to the savings depositors, except where it may be shown that any such mortgages were taken in payment of commercial loans.
    Appeal from Wayne; Donovan, Hosmer, Carpenter, and Brooke, JJ.
    Submitted June 5, 1902.
    (Docket No. 58.)
    Decided July 22, 1902.
    Petition by Ernestine Peters against the Union Trust Company, receiver of the City Savings Bank of Detroit, and Harris & Tkroop, representing the commercial depositors of said bank, to establish a preference in certain securities in favor of tbe savings depositors. Prom a decree for petitioner, defendants appeal.
    Modified and affirmed.

      Barnes & Stowers (Alfred Lucking, of counsel), for petitioner.

      WashingtonL. Robinson, Byron R. Erskine, FitzGerald & Barry, H. E. Spalding, and Michael JBrennan, for commercial depositors.
   Montgomery, J.

In this proceeding the City Savings Bank has been found insolvent, and a receiver appointed to take charge of its assets and distribute the same among the creditors. The petitioner was a depositor in the savings department of the bank, and in this petition asks that, in the distribution of the assets, the investments made of the funds deposited with the savings department be held solely for the benefit of the depositors of savings funds; and the sole question presented is whether there are any ■assets as to which petitioner is entitled to this preference.

Section 27 of the general banking law (2 Comp. Laws, § 6116) provides as follows:

“A savings bank shall keep on hand at least fifteen per cent, of its total deposits. * * * Three-fifths of the remainder of its savings deposits shall be invested by the board of directors in bonds of the United States or of this State, or in the bonds of any other State of the United States, * * * or in the public debt or bonds of any city, * * * or upon notes or bonds secured by mortgage lien ■upon unincumbered real estate,” etc.

And section 29 of the banking law (2 Comp. Laws, § ■6118) reads:

“Any bank combining the business of a commercial bank and a savings bank shall keep separate books of ■account for each kind of business: Provided, that all receipts, investments, and transactions relating to each of said classes of business shall be governed by the provisions and restrictions herein specifically provided for the respective kinds of banks: And provided further, that all the investments relating to the savings department shall be kept entirely separate and apart from the other business ■of the bank, and that the fifteen per cent, reserve, required by the provisions of this act to be kept on the savings deposits, shall be kept separate and distinct from the reserve required on the commercial deposits, and that such portion of said savings deposits as are on hand unloaned, or deposited with other banks or reserve agents, and the investments made with the funds deposited by savings depositors, shall be held solely for the payment of the depositors of said funds.”

These provisions are not ambiguous. They are perfectly clear. And we agree with the learned judges of the circuit court, who heard this case below, that the question of convenience in banking, or inconvenience resulting from the enforcement of the law, can in no way concern us, if we ascertain the legislative intent, and that we are bound to enforce the law as we find it upon the statute books. The difficulty in this case arises from a claimed inability to follow the particular funds which were received as savings deposits. It is undoubtedly true that there was a commingling of funds. But the books of the bank always showed the amount which had been received by the savings department. From time to time, reports were made to the banking commissioner, showing that the savings funds had been invested in mortgages and bonds to the amount of about $1,000,000. It also appears from the testimony of Mr. Muer that the real-estate loans were conducted through and carried in the savings department, and so-reported to the banking commissioner. It appeared by the testimony of the cashier that this was true not only of the real-estate securities, but of the bonds, amounting to about $100,000. The rest of the savings-department deposits were invested in commercial securities. So long-as it is entirely possible to trace the fund which was invested in these securities as a fund derived from the savings department, we think there is no difficulty in saying that it should be impressed with a trust in favor of the savings depositors. See Ledyard v. Hibbard, 48 Mich. 421 (12 N. W. 637, 42 Am. Rep. 474); Sherwood v. Bank, 103 Mich. 109 (61 N. W. 352); Board of Fire & Water Com’rs of Marquette v. Wilkinson, 119 Mich. 655 (78 N. W. 893, 44 L. R. A. 493).

The point is made that some,of the commercial loans were secured by mortgages, and afterwards the mortgages-accepted in satisfaction of the loans; and it is said, as to these securities, that they had not their origin .in a loan of funds from the savings department, but from the commercial department of the bank, and should be so treated. We think this point is well taken, and that the case should be remanded, with leave to the receiver to apply to the court for direction regarding any mortgages claimed to • fall within this class. In all other respects the order of the circuit court, which provided that the real-estate securities and bonds be applied to the savings deposits, and that, as to the excess of savings deposits over and above these securities, the depositors should share with the commercial creditors, will be affirmed, and the case remanded for further proceedings. No costs will be awarded on this appeal.

Hooker, C. J., Moore and Grant, JJ., concurred.


author: Per Curiam.

text:
      In re MILLS.
    Juvenile Offenders — Report of County Agent —Habeas Corpus.
    A juvenile offender sentenced to the industrial school at Lansing will be released on habeas corpus where it appears that the report of the county agent, required by 1 Comp. Laws, § 2261, was dated five days after the commitment.

      Habeas corpus proceedings by Jennie Mills to secure the release of Lee Mills from the industrial school for boys at,j Lansing.
    Submitted July 1, 1902.
    (Calendar No. 19,439.)
    Prisoner discharged July 29, 1902.

      Gleason, Fitzgibbon & Black, for petitioner.

      Horace M. Oren, Attorney General (Charles W. McGill, of counsel), for respondent superintendent of industrial school.
   Per Curiam.

Lee Mills, a juvenile offender, was sentenced to the “reform school” at Lansing upon his plea ■of guilty. The record indicates that the statute (1 Comp. Laws, § 2261) requires a report from the county agent to be made after the arrest and before further proceedings. That said report must be in writing is clear, for the reason that the law provides that it shall be attached to the commitment if the offender is sentenced to imprisonment. As the commitment is dated October 16, 1901, while the report attached is dated five days later, it is manifest that the-statute was not complied with.

The prisoner is therefore discharged.