text:
    KUENNAN v. UNITED STATES FIDELITY & GUARANTY CO.
    1. Evidence —Books op Account — Performance of Contract.
    The plaintiff’s books of account showing the number of loads of material furnished under a contract to deliver sand and gravel for the construction of a public sewer, are admissible in evidence to show the number of loads delivered when they are supported by further testimony showing their correctness, in an action against the surety on the statutory bond to protect materialmen.
    2. Municipal Corporations — Public Improvements —Bonds — Public Buildings and Works.
    A contract is executed for public works within the meaning of 3 Comp. Laws, § 10743 when a construction company submits a proposal which is accepted and the work completed upon the giving of statutory bonds for the performance of the work and payment for materials and labor, although no formal contract was executed.
    3. Same — Public Officers — Construction Bonds.
    It is the duty of public officials of a municipal corporation to secure a compliance with the statute governing the construction of public buildings and works.
    4. Corporations — Foreign Corporations — Validity of Contracts.
    A surety is liable on its bond for the construction of a public work where the contractor, a foreign corporation, which has omitted to comply with the requirements of statute for the carrying on of business within the State, fails to pay for material furnished.
    5. Same — Foreign Corporations —Estoppel to Dispute Validity of Contracts.
    A foreign corporation engaged in business in Michigan is es-topped to dispute the validity of its contracts for non-compliance with the statute regulating the transaction of local business. Act No. 34, Pub. Acts 1903.
    6. Same — Validity of Contracts.
    Such contracts are not void, but merely unenforceable by the foreign corporation until it complies with the statute.
    Error to Kent; McDonald, J.
    Submitted October 22, 1909.
    (Docket No. 19.)
    Decided December 10, 1909.
    Assumpsit by Frederick W. Kuennan against the United States Fidelity & Guaranty Company and the National Construction Company on a statutory bond. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant the United States Fidelity & Guaranty Company on writ of error.
    Affirmed.

      Judah, Willard, Wolf & Beichmann and Bundy, Travis & Merrick, for appellant.

      Thomas P. Bradfield, for appellee.
   Ostrander, J.

This is a suit brought to recover the price and value of materials used in building a public work, namely, in the construction of a sewer in the city of Grand Rapids by the defendant National Construction Company. The bond, specially counted on in the declaration, is the statute bond (3 Comp. Laws, §§ 10743-10745), and was made in August, 1905. The defendant National Construction Company was not served with process and did not appear. There was testimony tending to prove that service of process could not be made upon it within the State. Verdict for the plaintiff against the defendant surety company was entered by direction, and judgment followed the verdict. The contentions of appellant are: (1) That the court was in error in holding that the demand of the plaintiff against the construction company was proven. Involved in this is the question whether certain books of account kept by plaintiff should have been received in evidence. (2) It having been pleaded and admitted that the defendant construction company is a foreign corporation which had not acquired the right to do business in this State, therefore its contract with the city is illegal and invalid; for which reason the collateral and dependent liability of the surety company, appellant, upon the bond in suit, cannot be enforced.

Plaintiff established his demand, by undisputed testimony, if his account was competent evidence of the quantity of ’material delivered to the contractor. His arrangement with the contractor required him to furnish all of the sand and bank gravel needed in the construction of the sewer. The price was agreed upon. The material was furnished, and all that was furnished was used. These facts were established without recourse to the account. There was no witness, who, without reference to the account, could testify to the number of loads of material which were furnished. The teamsters who delivered material when directed so to do were not called as witnesses nor was it shown that they could not be called. The account was made by the plaintiff on the evening of each day, from the report of his foreman. The slips upon which the foreman kept his tally were destroyed daily.

Appellant relies upon the rule of Jackson v. Evans, 8 Mich. 478; Swan v. Thurman, 112 Mich. 416 (70 N. W. 1023); Taylor-Woolfenden Co. v. Atkinson, 127 Mich. 633 (87 N. W. 89). It would, of course, have been competent to prove by the teamsters that they delivered to the contractor all material which they were directed to deliver to him. And if such testimony had been produced, it is probable that no objection would have been made — none would have been proper — to admitting the account in evidence. There was testimony which, with inferences therefrom which it was proper for the court to draw, tended to prove that the account correctly tallied or numbered the loads of material which were furnished. The contractor —or its representative — said that it wanted gravel enough and did not want any left over. When material was needed it was ordered by messenger or by telephone. It was delivered, not at one point, but at different points along the line of the sewer where it was used. The teamsters were in the employ of plaintiff. As loads left the pit, they were directed by the foreman where to deliver the material and the loads were tallied. The foreman testified :

“ I used to get my orders, and I used to have to send teams where the orders were to go. If I got an order to send to the Big Ditch [the sewer] I would send them over there. I kept track of the teams that went out on the different contracts, and when night came I would go into the house and give Mr. Kuennan the account and he would mark them off. * * * I know that when I would send a team to go to the Big Ditch they went right there. * * *”

Plaintiff testified:

“ Every evening or in the morning the names were put on the slips where he [the foreman] was to send material. Frequently I went down to see if they had any material or were running out. When I went there I could see they were using our material. I used to go down once in a while with this Heath, their superintendent, to check up once in a while, and he would ask me how many loads I had, and he would look up his.”

It is a reasonable, if not necessary, inference from the testimony that the contractor kept account of the material delivered by plaintiff, and that the two accounts, when comparisons were made,' agreed. Without questioning the rule that performance of a contract to deliver articles may not be proved by books of account, or the one that when goods are delivered by agents and entries in books are made from their memoranda, or statements, the agents or some one having knowledge must be called to prove delivery, we are of opinion that the spirit and reason of the rules were not violated in holding that the books of account were admissible in evidence. Practically, there was a single fact to be established by the account, and that one not whether plaintiff performed his agreement with the contractor, but how many loads of material were required to do it. This fact, from necessity, must be proven by some memorandum. The circumstantial evidence of the trustworthiness of the memorandum produced is so convincing that it would be unreasonable to doubt it.

The defendant construction company entered into contract relations with the city of Grand Rapids, the subject-matter thereof being the construction of a public work. Some reference is made to the fact that the construction company did not formally execute the written agreement. It did submit its proposal to do the work and it gave a bond conditioned for the performance of the work, in which reference is made to “ the foregoing contract.” It would appear from the printed record that the proposal, contract, and the bonds were so attached, and by references in each were so connected, as to constitute practically one complete transaction. The construction company entered upon the work and built thé sewer under the contract. We hold there was a contract within the meaning of the statute presently to be referred to. It was the duty of the proper officials of the city to secure a compliance with the provisions of the statute. The statute is entitled:

“An act to insure payment of wages earned, and for materials used, in constructing, repairing, or ornamenting public buildings, and public works.”

What is required by the statute is “security by bond, for the payment by the contractor, and all subcontractors, for all * * * materials furnished. * * * ” The bond in suit was tendered and was accepted. By the terms of the statute:

“ Such bond may be prosecuted, and recovery had, by any person, firm, or corporation,' to whom any money shall be due and payable on account of having * * * furnished any materials in the erection * * * of such building or works. * * * ”

The plaintiff is a person strictly within the provision of the statute above set out. Appellant refuses to pay because, it says, its liability is dependent upon the validity of the contract made by the city and the contractor, and that the contract is invalid because the contractor, a foreign corporation, is not admitted — has no legal right — to do business within the State. It is assumed that the appellant is organized for the purpose of furnishing the security demanded by the statute, charging and receiving a sufficient consideration for its undertaking. It would seem that its legal liability to laborers and materialmen ought at least to be co-extensive with the legal liability of the contractor to the same men. In its written undertaking are no conditions avoiding its liability excepting the one that the contractor itself pay such obligations as are due and payable. It is not contended that the construction company is not under legal obligation to pay the plaintiff. It had the benefit of plaintiff’s material in the work. I think decision might be safely rested here. The same conclusion is arrived at, and for the same reason, when it is considered that the construction company is estopped to assert the invalidity of its contracts made in this State. Showen v. Owens Co., 158 Mich. 321 (122 N. W. 640). Further than this, its contract with the city was not void. It could not be enforced by the construction company until it had complied with the statute. Act No. 34, Pub. Acts 1903; Hastings Industrial Co. v. Moran, 143 Mich. 679 (107 N. W. 706).

The judgment is affirmed.

Grant, Montgomery, Moore, and Me Al v ay, JJ., concurred.

       3 Comp. Laws, § 10743. See, also, Act No. 187, Pub. Acts 1905.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    NATIONAL CASH REGISTER CO. v. RICHARDS.
    1. Justices of the Peace — Appeal prom Justice’s Court — Return-Opportunity to be Heard.
    Under Act No. 475, Local Acts 1903, giving justices of the city of Detroit authority to grant motions for new trial, the hearing and determination of the motion by the court in the absence of counsel for one of the parties who had appeared at the time for which the motion was noticed, and left because the opposite counsel did not appear, is valid where the justice returned on a motion to vacate the order granting a new trial, that upon the showing made by the respective parties he thought a new trial should be granted.
    2. Sales — Conditional Sales — Contract—Right to Possession.
    Upon the default by a vendee of personal property in making specified payments, the vendor is entitled to possession on declaration of forfeiture.
    3. Same — Forfeiture—Reservation of Title.
    The seller may elect, under a conditional contract of sale reserving title, to waive the default and continue the contract in force.

      4. Same — Notice of Forfeiture — Evidence.
    A letter advising the purchaser that the conttact of sale will be held by an attorney until a specified date, after which possession will be demanded, is an election to waive the default until the date named, and continue the contract in force.
    5. Same — Consideration—Contracts.
    No new consideration is required to render such waiver valid.
    6. Same — Conditional Sale — Reservation of Title.
    A sale of personal property with reservation of title to the seller, gives the purchaser only the right to possession, but no lien or special property in the subject-matter.

    7. Damages — Replevin—Return of Property — Nominal Damages.
    In replevin by the seller of a cash register under a contract reserving title, the defendant who waives a return of the property is entitled, not to the value of the property, but to only such damages as are shown to have resulted from the seizure, and in the absence of evidence of actual damages, a judgment for nominal damages should be rendered.
    Error to Wayne; Donovan, J.
    Submitted October 22, 1909.
    (Docket No. 156.)
    Decided December 10, 1909.
    Replevin by the National Cash Register Company against Katie Richards and another. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed,' and judgment entered for defendants for nominal damages and costs.

      Graves, Hatch & Wasey, for appellant.

      Frank C. Moriarty [M. J. Lehman, of counsel), for appellees.

       As to rights and liabilities of vendor and purchaser by conditional sale on default of payment, see note to Cole v. Hines (Md.), 32 L. R. A. 455.

   Ostrander, J.

Plaintiff sold a cash register to defendants and gave them possession thereof. The contract required defendants to pay $50 for the register, in installments, and title to the property was retained by plaintiff with the right, in case of the default of defendants in making any payment, to take possession of the property and forfeit payments made. On June 6, 1908, defendants had paid $20 and owed $30, all overdue. Possession of the register was demanded, refused, and this action of replevin instituted in justice’s court. There was a judgment for the plaintiff. A new trial was granted on motion of defendants. A motion of plaintiff to set aside the order granting a new trial was denied, and on July 31, 1908, a judgment for defendants was rendered. They waived the return of the property, and their damages were assessed at $20. In the circuit court, to which plaintiff appealed, the jury, by direction, returned a verdict for defendants, assessing their damages at the sum of $20. Judgment was entered on the verdict, with costs to defendants.

At the trial in the circuit court, plaintiff offered no testimony; but a statement of facts made by the attorney for plaintiff appears to have been accepted as true. Defendants, without objection, introduced in evidence two letters written by plaintiff to defendant Katie Richards and received by her, dated, respectively, June 3 and June 12, 1908. Katie Richards was sworn and testified that the register was in good condition when taken upon the writ; that she could not value it, but it was worth at least $20. There is no other evidence of defendants’ damages or of their interest in the property. The letter of June 3d, written by the plaintiff, by its treasurer, calls attention to the fact that the payments due February 7th, March 7th, and April 7th are unpaid, and states that, unless a remittance of $30 to cover the balance of the purchase price is made on or before the 10th instant, the account will be placed in the hands of plaintiff’s attorney for collection. The letter of June 12th, written from Dayton, Ohio, is signed by the attorney of the plaintiff, states that the account has been received by him from the treasurer’s department, with the correspondence, including the letter of June 3d, and that he will hold papers until June 25th before sending them to the attorney representing plaintiff at Detroit. If .it is made necessary to forward the papers, “I will be forced to instruct him to take immediate possession of the register.” Counsel for plaintiff requested the court to charge: That the said letter of June 3d was without consideration “so far as any extension was given to the defendants; that is, that. the defendants parted with no consideration whatever, and the agreement for the extension is nudum pactum;” that the letter of June 12th is subject to the same objection, and also to the further objection that it was written after the suit was begun. The court was further requested to charge that there was no evidence of any damages sustained by defendants, that from any estimate of damages should be deducted the value of the use of the machine, and that a verdict for plaintiff with nominal damages be entered.

Defendants’ notice of the motion for a new trial specified that it would be brought on for hearing before said justice at the opening of court, or so soon thereafter as counsel could be heard. Counsel for plaintiff attended at 9 o’clock, at the opening of court, and remained in the office of the justice until 9:45 o’clock, when the call of cases was concluded, and then, counsel for defendants not having appeared, asked the justice if he had the file of the case, and was told that he did not have it and did not know of said motion. Thereupon counsel for plaintiff left the office. The motion was called at 2 o’clock, and the order granting a new trial was entered; counsel for plaintiff being absent. In the affidavit for appeal, plaintiff raised the question of the regularity of this proceeding — indeed, the question of the power of the justice, in view of the notice of the motion, and in the absence of plaintiff, to vacate the first judgment. See Act No. 475, Local Acts 1903. Plaintiff having moved to set aside the order and the justice having returned that at the hearing of said motion plaintiff and defendants were heard, and the motion denied “ because, upon the showing made by the respective parties, I thought a new trial should have been granted,” we conclude that the principal objection, namely, that the judgment was vacated without giving plaintiff opportunity to be heard, is answered, and that the circuit court was right in so ruling.

The other exceptions relate to refusal of the court to charge as requested by plaintiff. It is contended: (1) That, if it is admitted that the letters referred to were offers on the part of plaintiff, there was no acceptance of such offers; (2) that, if accepted, there still was no consideration for forbearance or for the offer to forbear. The letters aside, plaintiff had the right to possession of the property after defendants’ default and after demand. This would be so if the contract had not, in terms, so provided. Wiggins v. Snow, 89 Mich. 476 (50 N. W. 991); Ryan v. Wayson, 108 Mich. 519 (66 N. W. 370). But the defendants did not forfeit any rights by the mere neglect to pay on the day or days named (Deyoe v. Jamison, 33 Mich. 94), and plaintiff might either declare the forfeiture and retake the property, or waive the default and continue the contract in force (Cable Co. v. Wasegizig, 130 Mich. 387 [90 N. W. 24]). Plaintiff’s letter of June 3d is plainly an election to continue the contract in force until the 10th instant, and the notification of such election to defendants. Cole v. Hines, 81 Md. 476 (32 Atl. 196, 32 L. R. A. 455). It was an election to receive the unpaid installments, rather than to forfeit the money which had been paid. For this purpose it was wholly unnecessary that a new consideration should move from defendants to plaintiff.

It follows that the demand made on June 6th was at least premature, and that when the writ of replevin was executed plaintiff was not entitled to possession of the property; but defendants’ right to the property is the contract right. They have no lien upon, and no special property in, the register. Ryan v. Wayson, supra. A judgment in their favor for its value would manifestly be unjust. At most, they had a right to its possession until plaintiff elected to forfeit their rights, and to damages for detention. No proof was made of any damages suffered, and the right to a return of the property was waived. Under the circumstances, a judgment for defendants for nominal damages and for costs should have been rendered. Farrah v. Bursley, 100 Mich. 547 (59 N. W. 245); Harris v. O’Gorman, 118 Mich. 553 (77 N. W. 12).

The judgment of the circuit court is reversed, with costs of this court. The record will be remanded, with directions to enter a judgment for defendants, with nominal damages and costs.

Grant, Montgomery, Moore, and Me Alva y, JJ., concurred.


text:
    PEOPLE, for use of KUENZEL, v. NATIONAL CONSTRUCTION CO.
    Contracts — Bonds nor Public Improvements — Materialmen — Words and Phrases — Subcontractors.
    A person who agrees with the contractor to manufacture and furnish cement blocks for a public sewer, making the blocks with machines furnished by the contractor, without undertaking to perform any part of the original contract with the city, is not a sub-contractor but a materialman, entitled to recover on the bond of the contractor for the security of laborers and materialmen. 8 Comp. Laws, § 10748.
    Error to Kent; McDonald, J.
    Submitted October 22, 1909.
    (Docket No. 150.)
    Decided December 10, 1909.
    Assumpsit by the people of the State of Michigan, for the use and benefit of Alfred H. Kuenzel and Frederick W. Kuennan, against the National Construction Company, principal, and the United States Fidelity & Guaranty Company, surety, on a statutory bond. A judgment for defendants on a verdict directed by the court is reviewed by plaintiffs on writ of error.
    Reversed.

      Thomas P. Bradfield, for appellants.

      Bundy, Travis & Merrick and Judah, Willard, Wolf & Beichmann, for appellees.
   Ostrander, J.

This suit is brought upon the statute bond referred to in the opinion of this court in the case of Frederick W. Kuennan against these defendants. Ante, 122 (123 N. W. 799). That opinion is decisive of the defenses interposed by the defendants in the court below in this case, excepting only of the question whether plaintiffs were materialmen or were subcontractors. Being of opinion that they were subcontractors, the learned trial judge directed a verdict for defendants. The material facts are not disputed and may be stated in few words. The National Construction Company undertook to construct in and for the city of Grand Rapids a sewer according to certain plans and specifications. In the construction of the sewer, concrete blocks were used and these blocks were of different sizes as the sewer varied in its diameter. Six blocks of the same size, when in position, completed a circle. Plaintiffs manufactured and furnished 15,814 blocks, at an agreed price of 22 cents each, which were used in the sewer, and the construction company is indebted to them therefor in the sum of $1,-153.48. The steel molds in which the blocks were formed were furnished to the plaintiffs by the construction company. When plaintiffs entered into parol agreement with the construction company to furnish these blocks, the sewer was partly constructed and the concrete blocks theretofore used were made either by the construction company or by some one for it. Plaintiffs agreed to furnish so many as should thereafter be needed. Plaintiffs did not carry such blocks in stock, but had before manufactured similar blocks for use in a smaller sewer. There is nothing novel in molding concrete into the form of blocks, the size of the blocks varying as the particular use they are put to demands. A block made in the form furnished by the contractor in fact answered the requirements of the specifications as to form and size, and also answered in these respects the contract between the plaintiffs and the contractors. So if made of proper material, if properly hardened, and if delivered for use at the sewer without being broken or damaged, it answered the requirements of both contracts. The number required would be determined by the length of the sewer to be made of them, and the length of the sewer would be found by consulting the plans. Nevertheless, it is clear that plaintiffs were concerned only to manufacture blocks of proper material in the forms or molds which were furnished, to allow them to properly harden and to deliver them on the line of the sewer. A block not according to specifications would be a block not conforming to the mold or one otherwise imperfect, and would be acceptable neither to the contractor nor the city. It would be wholly immaterial whether it was rejected by an inspector employed by the contractor or by one employed by the city. It is not always easy to determine whether one is a subcontractor or a materialman, though at various times attempts have been made to state a rule according to which the relation may be determined. We think it is made clear in this case that plaintiffs never undertook to perform any part of the original contract with the city, however complete their knowledge of its requirements may have been. They undertook to, and it appears that they did, perform their contract with the contractor, and the case upon the facts cannot be distinguished from People, for use of Hirth, v. Powers, 108 Mich. 339 (66 N. W. 215); Staffon v. Lyon, 104 Mich. 249 (62 N. W. 354). On the other hand, the facts are essentially unlike those appearing in Avery v. Board of Sup’rs of Ionia Co., 71 Mich. 538 (39 N. W. 742); People, for use of Winkle Terra-Cotta Co., v. Cotteral, 119 Mich. 27 (77 N. W. 312); People, for use of Reynolds, v. Banhagel, 151 Mich. 40 (114 N. W. 669).

The judgment is reversed. As the record leaves it uncertain whether the amount due to the plaintiffs, if defendants are found to be liable, is agreed to, a new trial is granted. .

Grant, Montgomery, Moore, and McAlvay, JJ., concurred.


author: Moore, J.

text:
    MAYO v. LATHAM.
    1. Fraud — Deceit—Expression oe Opinion.
    The expression of an opinion that the price of goods sold is cheaper than the buyer can procure them for elsewhere, does not constitute fraud although it is untrue.
    2. Sales — Contract—Breach—Damages.
    A purchaser of shrubbery who cancels the order after the . seller has dug up and set aside the property for him, is not liable for the entire purchase price, but for damages for the breach merely.
    Error to Wayne; Donovan, J.
    Submitted October 20, 1909.
    (Docket No. 129.)
    Decided December 10, 1909.
    Assumpsit by Emerson S. Mayo against Charles K. Latham for breach of a contract for the sale of certain trees. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      W. G. Stuart, for appellant.

      Clark, Lockwood & Bryant, for appellee.
   Moore, J.

On January 27, 1906, appellant signed a written order to plaintiff for certain trees and shrubbery amounting to $74.30. This order was received by plaintiff January 31, 1906. It was accepted by plaintiff on February 1, 1906, by letter, and prior to February 27th, when defendant, claims to have canceled the order, the trees and shrubs had been dug and set aside for plaintiff. On January 31,1906, plaintiff paid to the agent, who took this order, a commission amounting to $22.29. On February 20, 1906, appellant wrote plaintiff, in effect, that he desired to make some little change in the order. On February 27, 1906, he wrote, canceling the order. Plaintiff refused to cancel the order, and the stock was shipped about April 14, 1906. On April 17th the appellant wrote that he would not receive nor accept the goods. In due course of time, suit was commenced in justice’s court. The plaintiff declared, “in an action of assumpsit on all the common counts, specially for a breach of written contract, claims damages $500.00 or Under, the defendant pleads the general issue,” etc. The case was tried by the justice and resulted in a judgment for plaintiff. An appeal was taken and judgment was rendered for plaintiff of $74.30 and costs. The case is brought here by writ of error.

Two defenses were interposed: First, that the order was obtained by fraud; second, that the order was canceled. T,he fraud claimed is that the agent who sold the goods said that the price charged was as cheap or cheaper than they could be bought for elsewhere. We think the record discloses only an expression of opinion on the part of the agent, and, even though it should appear that similar goods could have been secured elsewhere at a less price, it would be no ground for annulling the contract. Collins v. Jackson, 54 Mich. 186 (19 N. W. 947); Moon v. McKinstry, 107 Mich. 673 (65 N. W. 546).

As before stated, the defendant notified plaintiff by letter that he canceled the contract and would not take the goods. Defendant preferred a number of written requests to charge. The judge declined to give these and gave a general charge that was not clear, and some parts of which it would be difficult to harmonize with other parts of it. In one part of the charge, the jury were instructed that the only defense in the case was the false statement of the agent. This we have already seen was a mistake. The jury were told:

The contract between the parties was executory; that is, it was not complete. It was in the course of execution, and when broken by the defendant by his letter to the plaintiff — well that is incomplete, strike it out.
“Mr. Latham: That refers back. It is also executory when made and when the letter was written.
The Court: Executory when made, and it remains so. That is the claim of the defendant, if you believe their testimony, that would be true. An executory contract is an agreement between parties to do a certain thing. It is an executed contract when the thing is done. An executed contract cannot be broken, because it is complete of itself. An executory contract can be broken by either party thereto, by his refusal to execute it, but the one who breaks a contract is liable for damages to the other party if the damages had been sustained and are proven. * * * Now we are to look at this matter .in a substantial manner, and I will state it in my own way as I thought it over after I went home last night. The parties entered into a written contract. The order accepted is a written contract. Only one of the parties consented to the breaking of that contract; that is, Mr. Latham. The other side did not consent to it. ' The party is the defendant then that consented, or took upon himself, the risk of breaking it and standing the consequences. If he did it without any legal cause, why it will stand as though not broken at all. If you find that he had legal cause, it would stand, a verdict for the defendant. That is, in other words, if you believe the plaintiff, his depositions, his evidence, you would find $74.30 with interest about two years; but if you believe the defendant’s evidence, that he was induced to buy shrubs at an exorbitant price, at a price beyond what they were reasonably worth, and not knowing so much about them as the agent, if he has maintained his case, you will find no cause of action.”

The rule as to the measure of damages which should control in the case is stated in Wigent v. Marrs, 130 Mich. 609 (90 N. W. 423). The attention of the court was called to this case; but he failed to give the proper instructions.

Judgment is reversed, and new trial ordered.

Grant, Montgomery, Ostrander, and McAlvay, JJ., concurred.


text:
    SCHOENFELD v. BOURNE.
    Attachment — Process—Constructive Service — Publication of Notice.
    Published notice of an action pending in attachment proceedings without personal service, is jurisdictionally defective as constructive service by reason of an incorrect designation of one of two joint defendants as “William H. Dunton” instead of “William H. Denton.”
    Error to Gratiot; Searl, J.
    Submitted October 19, 1909.
    (Docket No. 109.)
    Decided December 10, 1909.
    Attachment proceedings by Fred Schoenfeld against Benjamin W. Bourne and William H. Denton. A judgment quashing the writ is reviewed by plaintiff on writ of error.
    Affirmed.

      Hollis O. Johnson, O. G. Tuttle, and John T. Mathews, for appellant.

      Stone & Watson, for appellees.
   Moore, J.

The plaintiff is a resident of Ohio. The defendants reside in the Republic of Mexico. Plaintiff proceeded against the defendants in the circuit court for the county of Gratiot, by attachment, by reason of the nonresidence of the defendants. The writ issued July 10, 1908. Plaintiff attempted to publish a notice of attachment, but in the published notice named the defendants as “B. W. Bourne and William H. Dunton.” On October 15, 1908, an affidavit of publication was filed, made by one of the publishers of the Gratiot Journal, stating therein that the notice annexed thereto had been published in said paper at least once in each week for six weeks, and that the first publication thereof was on the 27th day of August, 1908. This affidavit was subscribed and sworn to on October 9, 1908. On November 6, 1908, the plaintiff filed his declaration, and on the following day entered the default of the defendants. On November 12, 1908, plaintiff took a judgment against the defendants for $6,070.66, and costs. On January 4, 1909, defendants entered a motion to set aside the judgment and quash the writ. On March 4, 1909, the court entered an order granting defendants’ motion. The case is brought here by writ of error.

The contentions of defendant are:

(1) That, because of the failure of the plaintiff to publish the notice of attachment as required by statute, the court never acquired jurisdiction in the case.
(2) That, because of the plaintiff’s failure to file proof of publication of the notice of attachment as required by statute, the court, in any event, did not acquire jurisdiction to render judgment in the case.

Both of these contentions are opposed by the plaintiff, and while he concedes that, because of lack of personal service of process, it would be the duty of the court to set aside the judgment, and permit the defendants to come in and defend, yet it is his contention that his proceedings and judgment are regular, and the court has only discretionary power to set aside the judgment. In our view of the case, the only question necessary to be considered is whether the publication of notice was fatally defective because defendant William H. Denton was called therein William H. Dunton.

The claim of plaintiff as to this feature of the case is stated by counsel as follows:

“ It seems to me clearly the name of ‘Dunton’ is idem sonans to ‘Denton,’ or perhaps, more properly speaking, the names of ‘Bourne and Dunton’ are idem sonans to ‘Bourne and Denton.’ Especially is this so where they are brought into court at the suit of Fred Schoenfeld, and declared against as joint defendants under a written contract relation. It will be interesting, in this connection to examine some of the cases in Michigan upon the question of idem sonans. The name of Kinney and Kenney are held idem sonans. Kinney v. Harrett, 46 Mich. 87 (8 N. W. 708). Also Dixon and Dickson. Reading v. Waterman, 46 Mich. 107 (8 N. W. 691). Also Brearley and Brailey. People v. Gosch, 83 Mich. 31 (46 N. W. 101). Also Ruty and Ruthe. Ruthe v. Railroad Co., 37 Wis. 344; Van Benschoten v. Fales, 126 Mich. 176 (85 N. W. 476).’’

An examination of these cases will show that they are clearly distinguishable from the one before us. Only one of them, the last one, was an attachment case. There an alias writ was taken out, and the names of the defendants were therein correctly given, and a personal service of the writ was had upon one of the defendants. In the case at bar there was no personal service.

In Granger v. Judge of Superior Court of Detroit, 44 Mich. 384 (6 N. W. 848), Justice Campbell, speaking for the court, said:

“ Where cases and proceedings are not according to the usual course, and are special in'their character, they are held void on slighter grounds than regular suits, because the courts have not the same power over their records to correct them. So where there has been no personal service within the jurisdiction, the doctrine prevails that proceedings not conforming to the statutes are void; but this is on the ground that there has been no service whatever, and the party therefore has not been notified in any proper way of anything. The purpose of the statutory methods is to furnish means from which notice may possibly or probably be obtained; but, as a court acting outside of its jurisdiction is not recognized as entitled to obedience, the special statutory methods stand entirely on their own regularity, and, if not regular, cannot be said to have been conducted under the statutes. The distinction is obvious, and is not imaginary.”

In Steere v. Vanderberg, 67 Mich. 530 (35 N. W. 110), Justice Champlin, speaking for the court, said:

“ It is a settled rule of law that all exceptional methods of obtaining jurisdiction over persons not found within the State must be confined to the cases and exercised in the way precisely indicated by the statute, and it may also be regarded as settled law that a failure to comply with the statutory requirements where the jurisdiction conferred is special, and no personal service is obtained, renders the judgments null and void. Thompson v. Thomas, 11 Mich. 274; King v. Harrington, 14 Mich. 532; Millar v. Babcock, 29 Mich. 526; Johnson v. Delbridge, 35 Mich. 436; Woolkins v. Haid, 49 Mich. 299 (13 N. W. 598); Rolfe v. Dudley, 58 Mich. 208 (24 N. W. 657).”

In Jaffray v. Jennings, 101 Mich. 515 (60 N. W. 52, 25 L. R. A. 645), Justice Hooker, speaking for the court, said:

“ We start with the proposition that attachment is a harsh and extraordinary remedy, unknown to the common law; and the statutory provisions upon which the right depends, being in derogation of the common law, must be strictly construed, and cannot be extended beyond their terms. See cases cited in 1 Jac. & C. Dig. p. 96, § 1; Estlow v. Hanna, 75 Mich. 219, 224 (42 N. W. 812).”

In the opinion in the case of Fanning v. Krapfl, 61 Iowa, 417 (14 N. W. 727, 16 N. W. 293), is found the following language:

“ In considering the question, we must not be misled by the singularity of the name. If a notice to A. B. Smith would not be sufficient, if published, as to B. A. Smith, then we think that the notice in this case is not sufficient. The question before us concerns the title to real estate, and it would not be possible to base any safe rule upon the distinction between names that are peculiar and those that are not peculiar. Notice by publication, even'where there is no misnomer, does not afford a very strong natural presumption that the fact of the pendency of the action will be brought to the defendant’s actual knowledge. Notice by this mode is allowable only out of necessity. It must often happen that great injustice is done and great hardship suffered. We are not disposed to open the door any wider than necessity requires. Whoever undertakes to give notice by publication, and misnames the defendant, is without excuse. It requires very little care to publish the defendant’s name correctly. We are evidently justified in holding the plaintiff who gives notice by publication to a considerable degree of strictness. If we were to adopt the rule contended for by the appellee, that not only can the Christian names be entirely omitted, but the initial letters of the Christian names transposed, this might become the favorite mode of giving notice by publication. It appears to us that we should open the door to mischief of which no one could see the end.”

In Hubner v. Reickhoff, 103 Iowa, 368 (72 N. W. 540, 64 Am. St. Rep. 191), it was held that where service in an action for divorce against a nonresident is by publication, and defendant makes default, the court cannot assume that the name “ Keesel ” in the notice should be understood as “ Keisel,” the name of the defendant, on the principle of idem sonans, and the decree was held void. See, also, Estlow v. Hanna, 75 Mich. 219 (42 N. W. 812), and Cochrane v. Johnson, 95 Mich. 67 (54 N. W. 707).

Applying the principles stated in these cases, we think it clear that in an attachment case against Benjamin W. Bourne and William H. Denton, nonresidents, where no one is personally served with process, the court does not get jurisdiction, because of the publication of a notice describing the defendants as Benjamin W. Bourne and William H. Dunton.

Judgment is affirmed.

Grant, Montgomery, Ostrander, and McAlvay, JJ., concurred.


author: Grant, J.

text:
    McCALL v. McCALL.
    1. Real Property —Life Estate — Remainders—Mortgages— Duty to Pay Interest.
    A life tenant who omits to perform his duty .to pay the interest on a mortgage covering the premises, and who obtains a conveyance from the purchaser at the foreclosure sale, holds the property subject to the rights of his minor children who own the remainder, and their interest is not divested by a transfer of the realty to a son who had notice of the facts.
    2. Equity — Laches—Knowledge and Notice.
    Complainants are not barred by laches from questioning conveyances of the property to their brothers, where they moved promptly after their father’s death and after notice, by the assertion of an adverse claim that the repurchase was not intended for their benefit, being entitled until such notice to assume that the repurchase was originally for their benefit and that the subsequent conveyances affected only the life estate.
    3. Same — Estates in Remainder — Reimbursement op Life Tenant.
    In a suit to set aside an- invalid conveyance to the defendant, who claimed to have paid a certain amount due on an outstanding mortgage and taxes for the construction of a drain, and who claimed an allowance for care and support furnished to his father, a decree disallowing the other claims and requiring reimbursement to the defendant for the amount paid on the mortgage is affirmed on the ground that it is supported by evidence of the defendant’s having had the use of the farm and having moved valuable buildings from it to his own land.
    Appeal from Gratiot; Dodds, J., presiding.
    Submitted October 19, 1909.
    (Docket No. 107.)
    Decided December 10, 1909.
    Bill by Daniel McCall and others against Abram McCall and another to set aside certain deeds. From a decree for complainants, defendant Abram McCall appeals.
    Affirmed.

      John M. Ever den (John T. Mathews, of counsel), for complainants.

      Stone & Watson, for appellant.
    One John H. McCall and his wife, Barbara, owned in their lifetime 160 acres of adjoining land, each owning 80 acres. The 80 acres belonging to the wife was the homestead. Complainants and defendants are their children. Two days before the mother died, she and her husband made a disposition of these lands. The husband executed a deed of his 80 acres to his two sons, Robert and Abram, deeding to each a 40. Mrs. McCall joined in that deed. The mother executed a deed of her 80 to her husband for life, with remainder to her children, the complainants, and the defendant William, the same to be equally divided among them upon the death of her husband. These deeds were executed April 5, 1892, and were at once delivered and recorded. There was a mortgage originally given for $600 upon the land owned by the mother, with interest at 8 per cent. Four hundred ninety-five dollars and fifty-three cents remained unpaid at her death. Some of the children were then minors. After the mother’s death, the father and children continued to live upon the farm; the daughters doing the housework; one remaining at home and keeping house, while the other worked out. The older boys were at work elsewhere much of the time.
    In 1897 Mr. McCall leased the 80 acres in which he had a life estate to the defendant Abram. Abram took possession of the land, moved into the house, and his father lived with him. The father sold his personal property and paid his debts. Abram continued to occupy the premises under his lease until November 21,1904. Meanwhile Mr. McCall, the father, failed to pay the interest on the mortgage. The mortgagee, one Mrs. Cameron, foreclosed, bid the property in for the amount due, with interest and costs of the foreclosure, amounting in all to $560.19. The sale became absolute March 2, 1897. On April 14th following Mrs. Cameron deeded the 80 acres back to John H. McCall, the father, for $635, being the amount of principal, interest, and additional costs, and took back from him a mortgage for that amount. Meanwhile, Abram built a house upon his own 40, deeded to him by his father, and moved the buildings of the former home to his own land. His father continued to live with him until his death, June 19, 1906.
    On November 21, 1904, the father deeded the west 40 acres of the mother’s 80, which was the homestead, to the defendant Abram. He at the same time, or shortly before, deeded the east 40 acres to defendant William. By the arrangement William assumed and agreed to pay $500 of the mortgage, and the defendant Abram was to pay the balance, $135. On December 2, 1907, complainants filed this bill praying that the deeds made by their father to the defendants be set aside, and that the title to four-fifths of the lands described therein be decreed to them. The claim against William has been satisfactorily settled by the parties, so that the controversy now is entirely between defendant Abram and complainants. The case was heard upon pleadings and proofs taken in open court and decree entered for complainants; the decree, however, requiring the complainants and defendant William to pay to defendant Abram the $135, which he had paid upon the mortgage.
   Grant, J.

(after stating the facts). Mr. McCall, the life tenant, occupied a position of trust towards his children, the remaindermen. It was both his legal and moral duty to pay the taxes and interest upon the mortgage. His moral obligation was greater because of the minority of some of the remaindermen. The law does not permit a life tenant for any reason to neglect to pay taxes and interest, and obtain title in fee by purchasing the land at tax or foreclosure sales. In making such purchases, the life tenant is only paying what the law compels him to pay. He then stands in no other or different relation to the remaindermen than he would if he had paid the taxes and interest in season. We are not concerned with the motives of the life tenant in the instant case in neglecting to pay the interest and permitting a foreclosure. It would not avail the defendant if there was no understanding or agreement between the life tenant and the mortgagee that the title after foreclosure should be reconveyed to the life tenant. The interest was less than $40 per year, and the interest was all that the mortgagee desired. The defendant purchased only the interest of his father, the life tenant, and that was a life interest. He is not an innocent purchaser. He knew the conditions of the deed from his mother to his father, and his brothers and sisters. He knew that it was the duty of his father to protect those interests. Estates in remainder cannot thus be destroyed. The case is controlled by Bowen v. Brogan, 119 Mich. 218 (77 N. W. 942, 75 Am. St. Rep. 387); Lewis v. Wright, 148 Mich. 290 (111 N. W. 751).

The complainants were not guilty of laches. If they knew of the foreclosure and repurchase by their father, they had a right to assume that the repurchase was for the protection of their interests. There is evidence that the father so stated. Even if they learned that their father had deeded the land to the defendant, they had the right to believe, that the deed conveyed only the life estate which the father had possessed. They moved promptly after their father’s death, and the assertion on the part of the defendant that he owned the title in fee.

Defendant claims that, if he had not title in fee, the complainants should compensate him for the care of his father, and a certain drain tax which he paid. The evidence shows that the father worked upon the farm with his son until he was stricken with páralysis, about 18 months before his death. He was more or less helpless for about seven months before his death. Defendant and his wife took care of him, but employed no nurse or other person to attend him. Defendant had the use of the land, and appropriated to his own use the buildings that were on it. These were worth between $200, the least valuation put upon them, and $1,000, the highest. Under the evidence, we think he is not entitled to compensation for the care of his father or the taxes paid, and that the requirement that complainants pay that part of the mortgage which he assumed, with interest, is all to which in equity he is entitled.

The decree is affirmed, with costs.

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


text:
    BOARD OF EDUCATION OF CITY OF GRAND RAPIDS v. BROWN.
    1. Eminent Domain — Necessity—Evidence—Damages.
    Evidence of the damaging effect of a proposed public improvement on any portion of the public is competent to affect the • question of public necessity.
    2. Same — Evidence.
    The admission of testimony tending to show damage from a public improvement to a portion of the public whose property is not to be taken for the improvement, is noterror where the fact appeared from other competent testimony and from the view of the premises.
    3. New Trial — Reasons for Denial — Request for More Specific Finding Necessary.
    In the absence of a request for more specific reasons for the denial of a motion for a new trial, a case which contains no prejudicial error will not be reversed on appeal for the reason that the lower court made a general finding that he found no grounds for awarding a new trial.

      4. Same — Mandamus.

      Quaere — Is mandamus the proper remedy to compel the trial judge to file more specific reasons for denying a new trial ?
    Appeal from the superior court of Grand Rapids; Stuart, J.
    Submitted October 19, 1909.
    (Docket No. 122.)
    Decided December 10, 1909.
    Proceedings by the board of education of the city of Grand Rapids against William B. Brown and Mattie Brown to condemn certain land for school purposes. From a judgment for defendants, petitioner appeals.
    Affirmed.

      Moses Taggart and Raymond M. Ferguson (Taggart & Taggart, of counsel), for petitioner.

      Kleinhans & Knhppen, for defendants.
    In 1907 the legislature passed an act conferring upon the board of education of the city of Grand Rapids authority and power to institute and maintain proceedings for the condemnation of private property for public use for schoolhouse sites, athletic grounds, and playgrounds, and for all purposes for which said board is authorized by law to acquire and hold property. Act No. 525, Local Acts 1907. Acting under this authority, the petitioner filed its petition in the proper court to condemn a small lot of land known as lot 8 of Briggs subdivision of lot 19, Ooit & Curtis partition plat, of said city. A somewhat minute description of the property and its surroundings is essential to a proper understanding of the questions raised. The petitioner owns a schoolhouse site situated in the middle of a block, with a frontage upon the south along Fountain street 439.8 feet. On the west of said site is a school building now occupied as a grade school, but is eventually to be used as a gymnasium, in connection with a large high school building in the course of erection to the east, upon the other part of the site. The block in which this schoolhouse site is located is bounded on the west by North Prospect street, on the north by Lyon street, and on the east by North College avenue. A street named Lyon Place extends from Lyon street, upon the north to the schoolhouse grounds, and over this street petitioner has access for all purposes. This street is located in the easterly part of said block, and enters the schoolhouse grounds 56.5 feet from its east boundary line. Briggs Court is located on the westerly part of said block, and is 57.3 feet from the westerly line of said schoolhouse site, prolongated north. Briggs Court is a paved street, is 30 feet wide, with a narrow sidewalk of about 3 feet on each side. The buildings are located close to the street line. The sidewalks and street are paved with concrete, and all the lots along it are occupied with houses except one. The lot in question is situated at the south end of Briggs Court, contains 150 square feet, rectangular on three sides, with a segment of a circle on the fourth. The object of the owner in platting this land and leaving the lot at the south end of the court as private property, was for the purpose of preventing its being extended through, thus making the court a cul-de-sac, attractive for residence purposes. The court has a water main and sewer. There are also water mains and sewers in Lyon Place, Fountain street, and North College avenue, and the other streets surrounding the block. The distance between the rear of the school buildings and the north line of the school grounds is about 30 feet.
    The plat, introduced in evidence by petitioner, shows a public alley extending from the east side of the school site 142 feet north of Fountain street to North College avenue. Whether this is in fact a public alley cannot be determined from the record. If, however, it be a private alley, it extends to and opens into the school ground. The petition states “ that it is necessary to take the said private property * * * for a schoolhouse site and grounds for the public use and benefit in said city of Grand Rapids.” A large amount of testimony was taken. The jury viewed the premises and returned a verdict that the taking of this land “is not a necessary public improvement, and that it is not necessary to take and use the private property described in the petition for the use and benefit of the public for the proposed improvement in said petition described.” The verdict was subsequently confirmed by the court, and from the verdict and confirmation the petitioner has appealed.
   Grant, J.

(after stating the facts). The first and most important assignment of error relates to the admission of testimony. The petitioner’s fight to condemn is based upon the testimony of one member of its board and other similar testimony. Mr. Sheppard testified on direct examination as follows:

“ If the board of education owned lot 8, the advantage would be access for pupils from Lyon street and the streets west and north of Lyon street, more direct and quicker than going around by Prospect street. It would enable the board to have a water main directly across, connecting the mains in Lyon and Fountain streets by joining onto the main already in Briggs Court, a six-inch main, bringing the water supply between the two buildings, increasing the efficiency of the supply in both buildings, enabling us to divide the sewer service from the buildings, sending a portion through Briggs Court to Lyon and the rest to Fountain street. It would be advantageous to have all kinds of supplies enter at the rear, and to be able to pass in or along Briggs Court and out by the other court, whichever it might be, and it would be much simpler to pass in one street and out the other than to turn behind the building.”

This same witness, upon cross-examination, said that, as far as outlets for teaming, water, and sewage, the same advantages could be obtained by other outlets, but at considerable more expense. These outlets were upon the school grounds and the streets already open to the petitioner.

Another of petitioner’s witnesses, Mr. Barlow, testified, under direct examination, after being shown the sizes of the mains in Lyon Place, Lyon street, Fountain street, and Briggs Court, that he thought a connection with the water main and sewer in Briggs Court would be of advantage; and “it looks as though it would be a little handier for a good many of the children to come through Briggs Court.” He also testified that without this piece of land the petitioner could get practically the same advantage by utilizing what they now have. This statement, of course, referred to water, sewage, and teaming. Evidence was given that it would be convenient to use a fire hydrant located near the south end of Briggs Court. The same witness, however, admitted that the hydrant could be placed without much expense upon the school grounds.

The city engineer, a witness for petitioner, testified that to carry a large sewer from Prospect street to the center of the school grounds, sufficient to take care of the sewage, would cost $994 in the street and $135 in the grounds. If from this arrangement the cost of the proposed improvement be deducted, the additional cost to the city Would be small.

Several of the witnesses for petitioner admitted, on cross-examination, that the taking of this lot and its use for the purposes designed would be a damage to the property and residents on Briggs Court. The respondents offered similar testimony, which was received under objection and exception. This testimony was not admitted as affecting the question of damages, but as proper matter for the consideration of the jury in determining the public necessity which they must find before the land could be condemned. There was no claim on the part of respondents to recover any damages on this account. Buhl v. Union Depot Co., 98 Mich. 596 (57 N. W. 829, 23 L. R. A. 392). It was admitted and submitted to the jury solely for its bearing upon the question of public necessity. Cases like First Parish in Woburn v. County of Middlesex, 7 Gray (Mass.), 106, do not apply. In that case a portion of the land surrounding a church, and belonging to it, was condemned for a public highway. The church and parish sought to recover damages for annoyance to its worshipers by the use of the highway from noisy and dissolute persons riding for pleasure on Sunday. It was held that damages for this anticipated annoyance could not be recovered.

The damaging effect of a public improvement upon any portion of the public is competent for the jury to consider in determining whether there is a public necessity for making the improvement. Otherwise, those whose property it seriously affected, but who cannot recover damages, must close their mouths and be subjected to damages without a hearing. The residents upon Briggs Court are a part of the public, and they are the part of the public most seriously affected by the proposed improvement. Why should it be held that the benefit and advantage to one portion of the public must alone be considered, and not the damage and disadvantage to another portion of the public ? Suppose there are 500 school children who, by going through Briggs Court, would save travel of 200 to 300 feet, and there are 500 residents upon this narrow street with their dwellings upon the street line, are not the 500 residents as much a part of the public as the 500 children? Must a jury in condemnation proceedings consider only the advantage — if it is one — to the children, a part of the public, and not consider the disadvantageous effect upon the residents, the other part of the public interested? If, however, it should be held that this testimony was inadmissible, we think the case falls within City of Detroit v. Brennan & Co., 93 Mich. 338 (53 N. W. 525), where it was held that the verdict in a street opening case should not be set aside because of the erroneous admission of testimony that could not have misled the jury. There was little occasion for much of the testimony on both sides. The jury viewed the premises, and had the surroundings before them. They knew, as well as any witness could tell, what convenience or benefit it would be to the school children to be allowed tó come and go through Briggs Court. It is apparent that those coming from the east on Lyon street would not be benefited, and that’those coming from the west on Lyon street cars could leave the cars at Lyon Place, and be nearer the schoolhouse than if they should leave the cars at North Prospect street, and go around to the front of the schoolhouse on Fountain street. In this event, they would have to walk no farther than if they could alight at Briggs Court, and walk through that street to the schoolhouse. The superintendent of the schools admitted that it would be no serious inconvenience to pupils to alight at North Prospect street and go around by Fountain street, 400 feet farther. Those who walked from the north and west would be compelled to walk the additional distance from Briggs Court to Lyon Place, 265 feet.

The jury had before them the sizes of the sewers and mains, the testimony of two engineers, and the facts in regard to the opportunity and ability of the petitioner to secure proper outlets without this improvement. It would seem that men of common sense needed no further testimony for their guidance than these facts, and their own view to determine whether this improvement was a public necessity. If there is any advantage to be obtainbd by connecting the water mains and sewers from the school buildings with those in Briggs Court, it seems apparent that that could be obtained without injury to the property or inhabitants of Briggs Court. All that would be necessary in that case would be to condemn a right of way under ground for the laying of the sewers and water mains. It also appears uncontradicted that the sewer in Briggs Court is not, in times of heavy rains, sufficient to carry off the water and sewage, and that at such times the water backs up into the cellars. Under these established facts, it would be a reflection upon the intelligence of the jury to hold that they were prejudiced by the testimony in support of the fact, patent to every one, that this proposed improvement would, if carried out, result in damage to the property and property owners on Briggs Court.

The errors assigned upon the refusal to give certain of petitioner’s requests and upon the oral charge of the court relate to the admission of the evidence above stated. It is therefore unnecessary to discuss them. The court very clearly stated to the jury the claims of the petitioner and of the respondents, and, under proper instructions, left them to determine the question of public necessity and damages. We find no error in the. refusal to give the instructions or in the charge as given.

Counsel for petitioner made a motion for a new trial for three reasons, as follows:

First. Because the verdict was against the legitimate testimony.
Second. Because it was against the great weight of the testimony.
Third. Because the court erred in its rulings and instructions to the jury, and the refusal to give petitioner’s instructions, and the several rulings of the court adverse to petitioner upon the objections made upon the trial.

The court filed a decision saying that, “after due and careful consideration of all the matters set forth in said motion, I do not find any error in the proceedings as claimed in said petition, nor do I find any ground or reasons for awarding a new trial, and therefore a new trial is denied.” To this finding counsel excepted for four reasons :

First. Because the motion was not granted.
Second. Because the court did not file specific reasons for its refusal.
Third. Because every point made as a basis for a new trial was not passed upon.
Fourth. Because the finding is a mere statement of the conclusion of the court.

If counsel desired a more specific finding, they should have made application to the court for that purpose. Queere: Would not mandamus in such case be the proper remedy ? Appellate courts will not set aside a judgment and grant a new trial where no prejudicial error was committed upon the trial, because the judge has not filed a specific finding upon the motion for a new trial. The third reason why a new trial was asked is certainly as general as is the finding of the court. It included more than 20 objections. The decision of the court, however, fully notified counsel that the court overruled all their reasons for a new trial. The first and third reasons have already been disposed of above. As to the second, we are of the opinion that the weight of evidence was clearly with the respondent rather than with the petitioner. Petitioner’s evidence made out a case of some convenience and some saving of expense rather than a case of public necessity, which the law requires in order to deprive a man of his estate.

The judgment is affirmed.

Ostrander, Moore, and McAlvay, JJ., concurred with Grant, J.

Montgomery, J. I concur in the result.


author: Montgomery, J.

text:
    FORS v. FORS.
    1. Deeds — Alteration—Question of Fact.
    It is a question for the jury to determine whether or not an alteration was made in a deed which contained the interlineation of the letter “ S ” in the grantee’s name and the abbreviation, “Jr.,” after it, referring to defendant’s son, and which the defendant claimed he told the notary to execute to himself as grantee; his testimony being contradicted.

      2. Trial — Instructions—Abstract Statements op Law.
    The trial court may properly refuse to give to the jury instructions upon abstract questions which could in no way aid the jury in coming to a conclusion as to the facts.

      3. Same — Instructions to Jury — Intimating Opinion of Judge —Perjury—Alteration of Deed — Notary Public.
    A charge which informs the jury that if a notary who testified in the case made certain alterations in a deed after its execution, he is guilty of forgery and perjury, erroneously emphasizes the opinion of the trial court upon a question of fact, and omits the theory that the notary might be mistaken in his recollection, or have believed he was entitled to change the instrument, or that he might have attempted to correct a supposed mistake in the conveyance.
    Error to Houghton; Streeter, J.
    Submitted October 20, 1909.
    (Docket No. 126.)
    Decided December 10, 1909.
    Ejectment by John S. Fors, Jr., and another against John S. Fors, Sr., and another. A judgment for plaintiff is reviewed by defendants on writ of error.
    Reversed.

      John Kiishila (Burritt & Burritt, of counsel), for appellants.

      Hanchette & Lawton, for appellee.
   Montgomery, J.

This is an action of ejectment to recover the east half of a village lot in the Hancock Copper Mining Company’s addition to the village of Hancock. The plaintiff and the defendant John Samuel Fors are father and son.

It appears by the undisputed testimony that in 1900 Bernard Harris was the owner of the lot in question, and in April a contract had been made for the purchase of this lot. It is the claim of this defendant that this contract was made in his name. The defendant took possession of the lot on the 22d of May, made some improvements, and on the 4th of October, 1900, the parties met at the office of John Eichkern for the purpose of having the deed prepared. The plaintiff accompanied the defendant to this office, and the case centers upon what occurred at this office at this time. A deed was there prepared, and executed by Bernard Harris and wife; possession of it was taken by Mr. Eichkern, and he, accompanied by the plaintiff, went to the office of a building and loan association; a mortgage was executed, the sum of $600 received, brought back by Mr. Eichkern to his office, and paid over to Harris as the balance of the consideration price.

The deed contains two interlineations. Between the words “ John ” and “ Eors ” appears the letter “ S.,” and after the word “ Fors ” appears the abbreviation Jr.” The theory of the defendant is that these alterations were made after the deed was executed, signed, and delivered to Eichkern. The only support of this contention is the appearance of the deed and the testimony of the defendant as to the res gestee. He testifies that when the parties were together in the office, the scrivener, Mr. Eichkern, asked in whose name the deed should be made, and that the. plaintiff said that it should be made in defendant’s name, and that the deed was thereupon drawn up and executed. This testimony is disputed. The circuit judge was evidently of the opinion, and we agree with that opinion, that there was enough to make an issue of fact upon this question.

Errors are relied upon which do not require discussion. The circuit judge very properly stated to the jury that the case must turn upon the simple question of fact as to whether the alterations made in the deed were made before or after it was signed and acknowledged before the notary public. This was the single question in the case, and it was not error to decline to give instructions upon abstract questions which could in no way aid the jury in coming to a conclusion as to the fact.

We are constrained to hold, however, that the circuit judge inadvertently indulged in language, in the course of the instruction, which was well calculated to impress upon the jury his own views of the evidence most forcibly. He instructed the jury as follows:

“ Now, it has been very properly said by the attorney for the defendant that this is a very serious case, and, gentlemen, it is a very serious case for a reason which has not been pointed out to you at all in the argument of counsel. There is no question, under the testimony in this case, that different alterations were made in that deed by John J. Eichkern. They are not made by the plaintiff in this case at all. The testimony is absolutely without dispute. The alterations in the deed were made by John J. Eichkern. If he made these alterations after the deed was executed, he is guilty of forgery, and he ought to be in the penitentiary. If he made those alterations after the deed was executed, he is guilty of perjury on this stand, and ought to be in the penitentiary for that also. You are to consider these things in considering the question of when those alterations were made. They are in the case, and they are brought for your consideration.”

The jury could not well fail to understand from this instruction what the views of the judge were upon the question of fact. Not only did he emphasize the fact that a verdict in favor of the defendant would seriously affect the witness Eichkern, but he excluded the theory of mistake on his part, either in his recollection or as to his right as a notary to alter the deed after it was executed. We can conceive of cases in which alterations might be made in a deed after it was executed, and the party not be guilty of technical forgery, if it was done for the purpose of correcting a supposed mistake. We are constrained to hold that this instruction was erroneous. See Pokriefka v. Mackurat, 91 Mich. 399 (51 N. W. 1059); Sterling v. Callahan, 94 Mich. 536 (54 N. W. 495); Kelly v. Emery, 75 Mich. 147 (42 N. W. 795); Williams v. West Bay City, 119 Mich. 395 (78 N. W. 328); and Renaud v. Bay City, 124 Mich. 29 (82 N. W. 617).

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

Grant, Ostrander, Moore, and McAlvay, JJ., concurred.


text:
    CARTER v. REAUME.
    1. Vendor and Purchaser — Damages — Land Contract— Breach.
    In an action on a land contract brought by the vendor without a prior tender of a deed, the measure of damages is the difference between the purchase price payable under the contract and the value of the land at the time of the breach.
    2. Same — Nominal Damages — Saving Questions for Review.
    A judgment for nominal damages will not be awarded on error in a case where the question was not presented to the trial court.
    3. Same — Taxes Paid — Statute of Limitations.
    Separate items of taxes paid more than ten years prior to the commencement of the action, except in so far as they might be included in the total sum due, under a clause providing that they might be added thereto, are barred by the statute of limitations and are not recoverable as a part of the contract price unless a deed was tendered.
    Error to Wayne; Brooke, J.
    Submitted October 20, 1909.
    (Docket No. 40.)
    Decided December 10, 1909.
    Debt by Richard Carter against Frank C. Reaume. James H. Cody, Ralph B. Wilkinson, and others, for the amount of a land contract. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      James H. Pound, for appellant,

      Navin, Sheahan & Bourke, for appellee Cody.

      Edwin Henderson (Wilkinson & Younglove, of counsel), for appellee Wilkinson.
   Montgomery, J.

This is an action of debt to recover an amount claimed to be due upon a land contract entered into between Martha F. Stewart and the three defendants Reaume, Lindsley, and Cody, which, contract was afterwards assigned to defendants Radcliffe and Wilkinson, who assumed and agreed to carry out the terms; the original contracting parties not being released. One thousand dollars was paid upon the purchase price on the execution of the contract, and interest was kept up for some four years. The entire consideration reserved in the contract became due on the 18th of April, 1897. The contract was assigned by Martha F. Stewart to S. Wight-man Stewart, and the property conveyed to him, and in 1900 the contract was assigned by S. Wightman Stewart to the plaintiff as security for $3,700. The plaintiff or his assignor has paid all the taxes accruing on the contract, both before and since the 18th of April, 1897.

This action was commenced just one day less than 10 years from the time the contract became due. In the court below the plaintiff claimed the sum of $13,303.12, being the entire amount due upon the contract, with interest thereon, and taxes paid. No tender of a deed was made to the defendants, and there was no direct proof that the plaintiff was in a position to tender a deed. The circuit judge was of the opinion that, under these circumstances, the plaintiff had not shown a right to recover, and directed a verdict for the defendants, basing his verdict upon the case of Stewart v. McLaughlin’s Estate, 126 Mich. 1 (85 N. W. 266, 87 N. W. 218). The court stated:

The plaintiff’s claim was that the measure of damages was the whole amount due under the contract price, plus interest and taxes. No testimony was offered at the trial tending to show the value of the land to the vendor at the time the contract was broken.”

The court held that the proper measure of damages would be the difference between the amount reserved in the contract and the value of the land at the time the contract was broken, and that, as there was no evidence on this point, the plaintiff could not recover. In this court the contention is made that at least nominal damages should have been allowed; but it is sufficient to say that no such contention was made in the court below, and that this point is also answered by Stewart v. McLaughlin’s Estate, supra.

It is also claimed that the plaintiff should in any event be entitled to recover the amount paid for taxes. It was not claimed in the court below, so far as the record shows, that a recovery for these payments as distinct payments could be had; but we think a further answer to this claim is that, as to the taxes paid prior to maturity of the contract, the statute of limitations is pleaded and would be a complete answer to an action to recover for these separate items. The provision of the contract is that, upon failure of the purchaser to pay the taxes and insurance, the same may be added to the amount due on the contract payable forthwith, with interest at the rate of 8 per cent, per annum, and shall be treated as a part of the money payable under the contract. It is manifest that on the 18th of April, 1897, this contract matured, and all sums whatever unpaid which constituted a part of the contract price were due. The rights of the parties were then fixed. The plaintiff or his assignor were entitled to maintain an action in debt upon condition that a tender of conveyance should be made. So, when this action was brought, there was no obligation to pay any particular sum of money under a covenant which was independent of the obligation of the plaintiff to convey. The fact that some of the consideration consisted of taxes paid by the plaintiff or his assignor in no way affects this question. The amount so paid became a part of the purchase price or money payable under the contract. The plaintiff had the right to demand payment of all on this condition. By the express terms of the contract, the money paid by him for taxes became a part of the contract price. He sues in debt. He could hardly be permitted to recover piecemeal when all was due. The condition upon which he could recover what was due was, under the authority of Stewart v. Mc Laughlin’s Estate, that he should first tender a deed. Had the action been in assumpsit, or had there been evidence to show that land, the title to which is in the plaintiff, is of less value than the contract price remaining unpaid, there might have been some basis for a judgment; but on this record there is no such basis.

The judgment is affirmed.

Grant, Ostrander, Moore, and McAlvay, JJ., concurred.


text:
    MEILKE v. SCHABBLE.
    1. Evidence — Admissions—-Agency.
    Testimony is competent to show that the plaintiff, after his colts were injured by defendant’s dog, was refused permission to see the animal by defendant’s servant in the presence of the defendant.
    2. Same.
    It was not prejudicial to admit evidence that the wife of defendant also refused to permit the plaintiff to see the dog.
    3. Same — Identity.
    That there was no other dog of similar appearance in the vicinity is proper evidence to identify the defendant’s animal.
    4 Principal and Agent — Vicious Animals — Scienter—Notice to Agent.
    Notice of the vicious character of the defendant’s dog may be imputed to the defendant from the fact that his servant, who had charge of and managed his farm, knew of attacks made by the dog on other persons and on animals in the highway.
    5. Animals — Vicious Character — Knowledge.
    An instruction to the jury was not error, that if they found the dog was of such vicious character that it might have been known by the defendant, had he exercised reasonable care and attention and should have known of its character, the jury might infer notice to him of its vicious propensities.
    Error to Van Burén; Des Voignes, J.
    Submitted October 19, 1909.
    (Docket No. 105.)
    Decided December 10, 1909.
    Case by Herman Meilke against August Schabble for injuries to plaintiff’s colts caused by a vicious dog. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Barnard & Lewis, for appellant.

      Cook & Chandler, for appellee.
   Montgomery, J.

This action originated in justice’s court, and was brought to recover damages for injuries to plaintiff’s colts, caused by defendant’s dog chasing said colts through a barbed-wire fence. The declaration was a common-law declaration. The circuit judge held that it was necessary to show the scienter. The plaintiff recovered a verdict for the damages to the colts, and the defendant brings error.

The assignments of error are nine in number. The first is based upon a ruling of the court admitting testimony that the plaintiff, after his colts were injured, went to the farm of the defendant and undertook to see the defendant’s dog, and that he was refused the opportunity of doing so by Arnold Schabble; but, as it appears from the testimony that the defendant himself was present, and heard the conversation and the refusal of Arnold Schabble, we think this testimony was clearly competent. It is claimed in the brief that the defendant could not understand English, but there is testimony of witnesses that the defendant could understand a whole lot of English.

Error is also assigned upon a ruling admitting testimony to show that the plaintiff was refused by Mrs. Schabble the opportunity of seeing the dog. We think this could not have prejudiced the jury, and indeed was competent, if only for the purpose of showing the efforts made by thé plaintiff to ascertain whether the dog in question was the one that caused the injury.

Error is assigned upon evidence given to show that there was no other dog of a similar appearance in the vicinity where this injury occurred. But this hardly needs discussion. It is referred to in the brief as negative testimony; but, if it were shown that the dog in question was the only bulldog owned in that township it would have some bearing upon the question.

The main contention of the defendant, as raised by his various assignments of error, is that error was committed by refusing to instruct the jury as requested, in substance, that if the facts tending to show the vicious character of the dog were communicated to Arnold Schabble, but he failed to communicate them to August Schabble, the defendant, that would not constitute knowledge on the part of the defendant, within the meaning of the law. A similar question was raised by an exception to an instruction given by the court, in substance, that if the attacks made by this dog upon persons in the highway, upon a cow of the witness Diefenbach, and upon other persons and stock, were brought home to the knowledge of Arnold Schabble, and if the jury found that he was an inmate of the household, and was managing and directing the farm, or if they found that the dog was of such a vicious character that such character might have been known by the defendant, had he exercised reasonable care and attention, and such that the defendant ought to have known of such character, then the jury had a right to infer that he did have notice of such vicious character. The claim of the defense in this respect is based upon the claim that there is no evidence of agency on the part of Arnold Schabble, and that the mere fact that he was the son of defendant, or a mere servant of defendant, and that the information was communicated to him, was not sufficient to charge the defendant with notice.

The case relied upon be defendant is Twigg v. Ryland, 62 Md. 380 (50 Am. Rep. 226). That case states the rule contended for by defendant, with certain limitations. It makes for the rule that knowledge of a mere servant of the mischievous propensity of a dog is not sufficient to bring home knowledge to the defendant. But cases are also cited in the opinion which proceed upon the ground that, where the defendant had deputed to his coachman the care and control of the dog, notice to him of the vicious propensities or nature of the dog was notice to the master. And in the case of Corliss v. Smith, 53 Vt. 532, it was held that, where one employs an agent to control his farm and the property thereon, the agent’s knowledge of the vicious habits of a dog owned and kept by the principal on the farm is the knowledge of the principal, and evidence which tends to show that the agent had such knowledge is admissible in an action against the principal for damages caused by the dog. The evidence in the present case we find clearly brings the case within this rule. There was testimony tending to show dealings with Arnold Schabble, by numerous of the neighbors, as the manager of the farm in question. There was testimony that, even when the plaintiff went to see defendant about the dog in question, Arnold Schabble, in the presence of the defendant, was the one who did the talking. There was at least enough testimony to carry the case to the jury tending to show the control and management of the farm in question by Arnold Schabble. This being so, the abstract proposition contended for that knowledge of a mere servant is not knowledge of a principal has no application. In view of this testimony the requests which were proffered by defendant were properly refused, and a careful scrutiny of the record fails to disclose any error in the submission of the case to the jury.

The judgment will be affirmed.

Grant, Ostrander, Moore, and McAlvay, JJ., concurred.


text:
    SMITH v. PROVIDENT SAVINGS LIFE ASSURANCE SOCIETY.
    1. Actions — 'Venue—Process—Service—Loous.
    As a general rule transitory actions must be brought in the county where service of process may be had, which is usually, although not neeessarily, the county of residence of the defendant.
    2. Same — Loous op Action — Foreign Corporations — Transitory Causes — Plage op Commencement.
    In the case of resident parties an action must be brought in the county where one of them resides, ,but where nonresidents are sued, the action lies in any county where process may be served. 3 Comp. Laws, § 10216.
    3. Same— Nonresidents — Foreign Corporations — Insurance.
    Under 3 Comp. Laws, § 10015, regulating service of process on foreign insurance corporations, an action may be brought against such corporation in the county of plaintiffs residence, or in any county where service can be had upon a duly authorized agent of the defendant; the statute not being intended however to extend the jurisdiction so as to confer it upon any other court of the State.
    Certiorari to Wayne; Murphy, J.
    Submitted October 22, 1909.
    (Docket No. 158.)
    Decided December 10, 1909.
    Assumpsit by Richard W. Smith against the Provident Savings Life Assurance Society, principal defendant, and garnishment against the National Bank of Commerce of Detroit as garnishee. The defendant moved the court to quash the proceedings in the principal case. A judgment quashing the proceedings for want of jurisdiction is reviewed by plaintiff on writ of certiorari.
    Affirmed.

      Arthur Jones, for appellant.

      Gray & Gray (H. 13. Spalding, of counsel), for appellees.
   Montgomery, J.

The plaintiff brought an action in the circuit court for the county of Wayne against the defendant life assurance society, and later instituted garnishee proceedings against the defendant, the National Bank of Commerce. These proceedings are not claimed to have any significance as to the question of jurisdiction which is here raised. In the case against the principal defendant suit was instituted by service of process upon the commissioner of insurance. The plaintiff at the time resided in the county of Manistee. The insurance company had an agent residing in the city of Grand Rapids, Kent county. The circuit court, on application of the defendant, dismissed the proceedings upon the ground that the court was without jurisdiction, because the plaintiff was a nonresident of the county of Wayne, and was a resident of the county of Manistee, and that the only process upon the principal defendant was the service of summons upon the commissioner of insurance of Lansing.

As a general rule, transitory actions must be brought in the county where service of process may be had, which is usually, although not necessarily, the county of residence of the defendant. In a case where residents of the State alone are concerned, the suit must be brought in the county of the residence of one or the other. See section 10216, 3 Comp. Laws, and Haywood v. Johnson, 41 Mich. 598 (2 N. W. 926). Proceedings against nonresidents, however, may be brought wherever service of process may be had upon them, without regard to the residence of the plaintiff. Atkins v. Borstler, 46 Mich. 552 (9 N. W. 850).

Plaintiff’s counsel rely upon the statute providing for service upon insurance corporations. Section 10015 et seq., 3 Comp. Laws. This statute provides that a foreign insurance company shall, as a condition precedent to doing business in the State, file a stipulation agreeing that any legal process affecting such company served on the insurance commissioner or his deputy shall have the same effect as if personally served upon the company or its authorized attorney in this State. The question presented is whether this statute is a modification of the rule of law previously existing, to the extent that it authorizes the bringing of a suit in any county in the State if service of process be had upon the commissioner. We do not so construe the statute. The general rule and statutes relating to service of process fix jurisdiction, and undoubtedly the action might be brought in the county of plaintiff’s residence or in any county where service might be had upon a duly authorized agent of the defendant. But this statute is designed to avoid the necessity of such service, but was not intended to change the jurisdiction, and to confer it upon any court in the State. It should require very clear terms to indicate any such purpose, as the inconvenience in permitting a suit to be brought in a remote part of the State is manifest.

The circuit judge correctly interpreted the statute, and the judgment is affirmed.

Grant, Ostrander, Moore, and McAlvay, JJ., concurred.


author: Hooker, J.

text:
    CAMPAU v. NATIONAL FILM CO.
    1. Reformation — Landlord and Tenant — Offices—Equity.
    A lessee who deliberately signs a writing which restricts his use of rented premises to office purposes only, and prohibits the use for any business deemed extra hazardous on account of fire, when he was doubtful at the time whether it would permit him to conduct his business therein, and relied upon the unauthorized statement of the bookkeeper of the lessor that the lessor knew the intended purpose, and of the real estate agent conducting the negotiations, that there would be no trouble, is not entitled to reformation in equity upon a cross-bill claiming mistake or fraud.
    2. Same — Parol Evidence — Rule.
    In such case the written instrument must prevail over prior oral agreements.
    3. Injunctions — Discretionary Nature of Writ.
    The injunction, not being a writ of right, will be denied to a complainant who rented premises for the lessee’s business, known to the lessor at the time, under the terms of a written lease which in effect prohibited thé use of the premises for such business because of the increased hazard of fire.
    4. Same — Injury Resulting from Issuance.
    An injunction may be withheld if it is likely to inflict greater injury than the grievance complained of.
    Cross-appeals from Wayne; Donovan, J.
    Submitted November 8, 1909.
    (Docket No. 147.)
    Decided December 10, 1909.
    Bill by Daniel J. Campau against the National Film Company to restrain the use of leased premises contrary to the terms of the lease. From the decree rendered, both parties appeal.
    Reversed, and bill dismissed.

      Hunt & Altland, for complainant.

      Merriam, Yerkes & Simons, for defendant.
   Hooker, J.

Complainant leased, by written lease, to the defendant, for the period of a year and 11 months, designated rooms in his building in Detroit. This controversy arises over the following provisions of the lease, i. e.:

“To be occupied for office purposes, and for no other purpose or purposes whatever, without the written consent of the party of the first part, and in no case to be used for any business deemed extra hazardous on account of fire.”

The defendant entered, and is conducting the business of renting moving picture films, which involves their storage and repair, but not their manufacture.

The complainant asserts that such occupancy is not for “office purposes only,” and also that it is a business “deemed extra hazardous, inasmuch as the films are made of inflammable material, viz., celluloid.” He has filed the bill in this cause to restrain such use of the premises. Defendant’s answer asks affirmative relief in the way of reformation of the contract to conform to the alleged understanding and oral agreement of the parties, that he might conduct this business upon the premises if the contract as written shall be construed to exclude it. The evidence shows that this lease was signed by the defendant with the full knowledge of its provisions. After the parol arrangement for the lease was concluded, complainant caused the lease to be written, signed it, and left it with his bookkeeper to secure the signature of the defendant. On presentation the latter’s manager read it, noticed the provision quoted, and “objected to signing it on that point,” when Mr. Stevenson, a real estate agent through whom the arrangements were brought about, said to the bookkeeper, “Is not this question thoroughly understood with Mr. Campau what these premises should be occupied for?” and he (the bookkeeper) said it was, and that “there was not any question about it.” Defendant manager still being unwilling to sign the lease, Stevenson says: “ I told him, from what I knew of Mr. Campau— I didn’t know him very well — (Objected to.) He signed it when I was in there.”

Under the well-settled rule, defendant cannot be allowed to alter or vary the writing that he deliberately signed, by proof of conversations or oral agreements had or made prior thereto. The claim that the contract should be changed upon the ground of fraud or mistake is untenable. Defendant’s manager deliberately signed the writing with full knowledge of its provision, with doubts of its sufficiency to cover the business contemplated upon a bare assurance of the bookkeeper (who is not shown to have had authority to give it) that Campau understood the purpose for which defendant rented the place, and Stevenson’s assertion (if it can be called such) that there would be no trouble about it. The defendant’s claim to a reformation must be denied.

We are of the opinion, however, that the evidence shows that the complainant understood the purpose for which the defendant intended to occupy these premises, and made no objection until after the lease was executed, and the defendant had been to expense in moving his business. He knew that the basement was rented because it had commodious fire-proof vaults, which defendant intended to use for the storage of films. He testified that he supposed that the office would be used for the exhibition to defendant’s customers of films in two machines which he (complainant) understood were to be used for that purpose. While we are' not satisfied that the business carried on was a use of the premises for “office purposes only” or that the business was not within the term “extra hazardous ” (which we find it unnecessary to determine), we think that complainant is not entitled to the relief he asks for several reasons. The bill is filed for an injunction to restrain defendant from conducting a business of keeping or storing films upon the premises. This is unconscionable under the proof, for, under complainant’s theory, the defendant must not only forego the benefit of his lease, but must continue paying a rental of $1,200 per year for the premises. It cannot even sublet or assign its lease without written consent of the complainant. Relief by injunction is not a matter of right in a case like this. It rests in discretion.

“It is not enough to show that defendant is without right. The complainant who seeks equity must do equity, and must affirmatively show himself to be equitably entitled to the relief asked.” 22 Cyc. p. 776, and cases cited.”

That is the general rule in all equity cases, and there is no reason for relieving a complainant from it in a case where he asks the drastic relief of an injunction. We applied this rule in the case of Edwards v. Mining Co., 38 Mich. 46 (31 Am. Rep. 301), where we held that—

“ Injunctions are to prevent irreparable mischief and stay consequences that could not be adequately compensated. Their allowance is discretionary, and not of right, calls for good faith in the petitioner, and may be withheld if likely to inflict greater injury than the grievance complained of.”

Again, we said in that case that:

“Where, by inviting an injury, one places himself in a position to call for an equitable remedy, his motives can be inquired into, even though he grounds himself on strict legal right.”

See, also, Turner v. Hart, 71 Mich. 128 (38 N. W. 890, 15 Am. St. Rep. 243).

The proof in this cause, as we interpret it, also shows that the danger from fire arising from the business as conducted is comparatively small when measured by the increased insurance rates chargeable to its presence, while the precautions taken by the defendant minimize the actual hazard, and the rapid substitution of noninflammable films promises still further reduction of the danger. We have already adverted to the injury to the defendant if denied the privileges for which he rented the building, and is still compelled to pay rent. The following authorities are in point on this branch of the case: McBryde v. Sayre, 86 Ala. 458 (5 South. 791, 3 L. R. A. 861); Trustees of Columbia College v. Thacher, 87 N. Y. 311 (41 Am. Rep. 365); Starkie v. Richmond, 155 Mass. 188 (29 N. E. 770); Clarke v. Clark, L. R. 1 Ch. App. Cas. 16; Durell v. Pritchard, L. R. 1 Ch. App. Cas. 251; Edwards v. Mining Co., 38 Mich. 46 (31 Am. Rep. 301); Hall v. Rood, 40 Mich. 46 (29 Am. Rep. 528); Potter v. Railway, 83 Mich. 297 (47 N. W. 217, 10 L. R. A. 176); 3 Pomeroy on Equity Jurisprudence (3d Ed.), § 1295, note.

The learned circuit judge who heard, this cause was apparently convinced of the hardship and injustice of complainant’s claim, and required his consent to a surrender of the lease by defendant as a condition of relief. We think that this was well within, and a conservative exercise of, his authority, and more than complainant was justly entitled to, for it imposed costs upon the defendant, and, as both parties have appealed, there is no obstacle to doing full justice to the defendant in this court by dismissing the bill with costs of both courts, leaving complainant to his remedy at law, if upon a trial it shall be found that defendant’s business as conducted is prohibited by the lease, a question we do not determine.

The bill is dismissed, with costs of both courts.

Blair, Montgomery, Ostrander, and Brooke, JJ., concurred.