author: Steere, J.

text:
    LETOURNEAU v. ERICKSON.
    1. Eminent Domain — Highways and Streets — Boundaries—Inconsistent Verdict.
    Where the highway commissioner filed a petition to condemn a public highway along the boundary line between two sections of land two rods on either side of the said line which formed the boundary between respondent and his neighbors, and where, at the trial, a contest arose as to the true position of the quarter post and of the section boundary, upon the testimony Showing surveys made by different parties, and the jury found that the survey as made or claimed by one surveyor was correct but awarded damages on the basis of another survey, for 4% acres of land, although the parcel as set forth in the petition was two rods wide on the east side of the section line, and 160 rods long, containing only two acres, the verdict was inconsistent and' must be reversed' on error.
    2. Highways — Commissioner of Highways — Petition.
    The jury in eminent domain proceedings, on appeal from a verdict and award for taking appellant’s property for a highway, has authority under the statute (Act No. 283, Pub. Acts 1909; 1 How. Stat. [2d Ed.] §2173 et seg.), to determine disputed boundaries involved in the taking of a part of the lands, where a controversy arises out of a disagreement as to the location of the section line by the surveyors.
    3. Same — Section Line, Location.
    Where the question of locating the correct section line at one end was in dispute, and was properly raised in the court,below, appellant was entitled to have the issue tried by the jury, and settled, before steps were taken to open and improve the highway.
    Error to Bay; Collins, J.
    Submitted June 22, 1914.
    (Docket No. 113.)
    Decided October 2, 1914.
    Eminent domain proceedings by Carl Erickson, highway commissioner of the township of Greenfield, Bay county, against Nelson Letourneau and others for the taking of private property for a public highway. From a determination of the commissioner laying out the highway and assessing damages, the respondent named appealed to the township board and later to the circuit court. Judgment establishing the highway; respondent brings error.
    Reversed.

      Charles W. Hitchcock, for appellant.

      Kinnane & Lane, for appellee.
   Steere, J.

This case involves proceedings taken under Act No. 283, Public Acts of 1909 (1 How. Stat. [2d Ed.] § 2173 et seq.), to lay out a highway in the township of Garfield, Bay county, Mich., under an application, dated February 11, 1912, signed by a proper number of qualified freeholders, describing the proposed highway applied for as follows:

“Commencing at the northwest corner of section 1 of said township of Garfield, being town 16 north, range 3 east, and running thence south along the section line between sections 1 and 2 of said township to where it intersects the east and west quarter line of sections 1 and 2 of said township.”

This called for a highway one-half mile in length running north and south between the north halves of the two sections mentioned. Upon this application the township highway commissioner proceeded to lay out such highway according to the provisions of said statute. Appellant, an adjacent landowner, being dissatisfied with the commissioner’s determination, appealed to the township board, where the action of the commissioner was affirmed, with a modification increasing appellant’s awarded damages, whereupon he appealed to the circuit court of Bay county. On trial of the matter in said court by jury a verdict was rendered affirming the decisions of the commissioner and township board in laying out said road, but again .increasing his award of damages, the material part of said verdict as recorded being that said jury—

“Say upon their oath that the highway as laid out and established by the highway commissioner -of Garfield township through the lands of appellant is necessary and they appraise and assess the damages of said appellant for the land taken for such highway and the moving of his house, fence, and buildings therefrom at the sum of $335.” '

A motion for a new trial was denied.

None of the testimony is included in the record, which contains the pleadings, recorded proceedings, charge of the court, minutes of the stenographer at the time of taking the verdict, and certain exhibits. Appellant’s assignments of error relate to the charge of the court and denial of motion for a new trial. The facts in the case must necessarily be gathered from the pleadings, exhibits, charge of the court, reasons for denying the motion for a new trial, and undisputed statements in the briefs of counsel.

Appellant was represented by counsel at the time of appealing to the township board from the action of the highway commissioner, and filed written reasons for his appeal which, condensed, are: That the commissioner had no jurisdiction to make any determination in the matter, and all his proceedings are illegal and void; that he attempted to settle boundaries without authority; that he made no legal tender of damages to appellant; that the survey of the proposed highway as made by the county surveyor and attached to the return of said commissioner is not in accordance with law; that the route of the proposed highway is not on the section line between sections 1 and 2 in said township; that said route is a confiscation of appellant’s property without due remuneration therefor, his damages being more than $500, and that said highway could be laid out without cost to the township for right of way “by deflecting the route of said road a short distance to the east at the extreme south part of appellant’s land, to the point or place where appellant claims the section line really is, and where the government stake shows it- to be.” To what extent these various reasons were urged before the court upon the trial can only be inferred from the present contentions of counsel, the charge of the court, and reasons given by the court in denying the motion for a new trial. This record contains the minutes of only one survey of the highway made by Calvin Thornthwaite, county surveyor, under the statute at the instance of the highway commissioner, as follows:

“Commencing at the post in the north boundary of township sixteen north, range three east, between sections one and two, thence south one degree west 19.35 chains to the 1/8 post, thence continuing on same course, 20.25 chains to the 1/4 post between sections one and two and end. Said highway to be four rods in width and the right of way to be two rods in width on each side of said line.
“Dated this fourth day of March, A. D. 1912.
“Calvin G. Thorñthwaite,
“County Surveyor, Bay County, Michigan.”

It appears from the charge of the court and undisputed statements of counsel that there was a contention over where this line really was,' on the land, other surveys having been made by surveyors named Bass, Johnson, Kelly, Turner, and Schindehette, all, as we infer, corresponding with that of Thorñthwaite except Kelly’s. The line as laid out by the highway commissioner was spoken of as the “Johnson-Turner-Thornthwaite Survey.” The Kelly survey bore more to the east than the other, as it ran south, and ended farther south. Maps of both surveys appear to have been in evidence before the jury, though not in the record before us. Both surveys ran from the same starting point, being the agreed corner post at the north end of the section line between sections 1' and 2, running thence south to the claimed quarter post between said sections, which they did not locate at the same spot. It is said in the brief of counsel for appellant that the Kelly quarter post is “at a point approximately 91 feet east and 53 feet south of the post or point which the township claims to be the terminus of the road.” In charging the jury the court recognized this as an important issue of fact, and in submitting it devoted approximately seven of the ten printed pages of the charge to that subject, saying, among other things:

“Now, the same questions are before you that were before the highway commissioner and were before the township board, and these questions are these: First, was it necessary for the establishment of that highway on the line where it was laid out, and that question is a question of fact for you to decide. Second, if you find that there is a necessity for a highway, then you must determine the question — the disputed question —as to the line and determine the amount of damages. * * *
“Now, gentlemen of the jury, it appears right in the start of this case that, there is a conflict between the opposing parties, that is, between Mr. Letourneau, the appellant in this case, and the highway commissioner, Mr. Erickson, representing the township in this case; that is, that there is a conflict as to the location of the section line between sections 1 and 2 and the east and west quarter line running through sections 1 and 2, and there have been described to you surveys made by Mr. Bass, Mr. Johnson, Mr. Kelly, Mr. Turner, and Mr. Schindehette. These various surveys and the lines that they have laid out and the work that they have done have been laid in evidence before you, and I will give you the law governing the surveys, and these matters will have to be considered by you. * * *
“But that does not meet the question altogether, because it is the claim of the township, or of Mr. Erickson representing the township, that Mr. Letourneau is entitled to but two rods, the two rods immediately west of the Johnson and Thornthwaite line. It is the claim of Mr. Letourneau that that does not give him all the land .that he is entitled, to because he is entitled to claim, as he says, as.far east as the line laid out by Mr. Kelly, so that the controversy as to the amount of land depends upon these various lines. If the Johnson-Turner-Thornthwaite survey is correct, then it is two rods east and west and the length of the 80. If the Kelly line governs, or the Kelly survey, then the true line is farther to the east on the east side, and farther to the south on the south side, or, in other words, Mr. Letourneau claims that he is entitled to land to the east of this line and to the south of the line. * * *
“Now, gentlemen, I want to fix this point in your minds in considering these different surveys. In the first place, the government laid out that land, surveyed it and subdivided it, and the question is all referred back to the original work of the government. There is no such thing as changing a corner in law or changing a line. The law does not recognize but one corner and one line. There is only one correct line according to the government survey, and only one correct corner according to the government survey, and the thing to do and the question to get at is what the line or lines actually were as laid out by the government.
* * * * ❖ * sjs * * * # *
“The question of Mr. Kelly’s survey, and his placing of the post that he claims at the quarter post between sections 1 and 2 comes before the jury in this case as a question of fact, and it is for you to determine from all of the evidence in the case whether or not the so-called Kelly quarter post was correctly or erroneously located.-
“As to which of these surveys is correct, the Kelly survey or the Johnson-Turner-Thornthwaite survey, is a question of fact for you to decide from all the evidence that has been put before you under the instructions of the court.
“Now, gentlemen, as I have said before, the first question for you to take up is the question of necessity. If you find that the road is not necessary, that will end the case. If you find that it is necessary, then I advise you to take up the question as to which’ of these surveys is correct, and in that way settle the amount of land which will be taken for this highway. After you have settled the amount of land, if you come to that point, then I advise you to take up and consider the question of damages which Mr. Letourneau shall be allowed on account of the establishment of the road.”

Much more was said to the jury as to their duties in determining the true line.

When the jury returned into court to render their verdict the foreman said, in response to the usual question:

“We have agreed that the road is a necessity; we also agreed that the Kelly stake is the proper stake, and we also find that it is necessary to take 4% acres of land at $30 per acre, $135, the moving of the house at $125, the outbuildings, $40, and the fence, $35, a total of $335.”

Whereupon the following took place:

“The Court: That seems to be full and clear.
“Counsel for Appellant: All I can say, the verdict of the jury finding the Kelly stake to be correct is probably—
“Counsel for Appellee: That is not a question submitted to the jury.
“The Court: That does not make any difference.
“Counsel for Appellee: They passed upon two questions, one is that the road is a necessity, and the damages or compensation, $335. * * *
“Counsel for Appellant: Let me have this on record. The jury finding that the Kelly stake is correct, it would seem to me that the Thornthwaite stake is not correct, and that the road is not on the proper route.
“The Court: Well, that is not a question you can raise now.
“Counsel for Appellant: I want the record, is all.
“The Court: Gentlemen of the jury, you have heard the verdict as announced by your foreman. Is that your verdict?
“The Jury: Yes.
“The Court: So say you all, gentlemen of the jury?
“The Jury: Yes, sir.
“The Court: The material parts are first, that the road was a necessity, and you all agree to that?
“The Jury: Yes, sir.
“The Court: Second, that the total amount of Mr. Letourneau’s damages is $335. You all agree to that?
“The Jury: Yes.
“Counsel for Appellant:. Thirdly, that the Kelly stake is correct.
“The Court: I have not said anything about that. * * *
“Counsel for Appellant: I would like to have—
“The Court: That is already in the case, and once in it is enough.”

The court then discharged the jury.

Before the verdict was formally entered counsel on each side prepared proposed forms.for journal entry which they desiréd adopted by the court; that of appellee being substantially the one already quoted from in part; that of counsel for appellant particularly including the statement “that the Kelly stake is the proper stake.”

We think this record shows conclusively that three questions of fact were submitted to the jury, the necessity, the true line, and the damages. The jury answered all three. The court .appears to have regarded the second, to which most of the charge was devoted, as not of controlling importance, material only in connection with the measure of damages, and entered a verdict and judgment on the other two.

In denying the motion for a new trial the court said in part:.

“The identity and the place of the piece of land 4 rods wide by 80 (160) rods long to be appropriated there is no reasonable question about. The actual controversy in this case was the question of necessity, arid as to how much of this piece of land 4 rods wide by 80 (160) rods long belonged to Mr. Letourneau.”

We must assume this riieans the identity and place indicated by the plat and minutes of survey made by Thornthwaite, the county surveyor, and made a part of the return, by the commissioner on laying out the highway, for if the identity and place indicated by the Kelly survey was taken into consideration, there was a question between two places, in relation to which the measure of damages varied materially.

But upon any theory which the record before us will support we are unable to conceive how a straight highway four rods wide and one-half mile long laid out upon and extending two rods wide on each side of a section line, which is the east boundary of appellant’s 80 acres of land, can take from him more than 2 acres, wherever the true line might be. The documentary evidence, charge of the court, and statements of counsel seem to show without question that appellant owned the E. % of the N. E..% of section 2, and two men, named Johnson and Monsion, who deeded to the township the right of way on their side of the line, for $i each, owned the W. % of the N. W. % of section 1, and that the proposed highway four rods in width was to b.e laid out along the north half of the section line running between said two sections, the right of way to be two rods in width on each side of said line. When the jury determined that the Kelly line was the true section line, but assessed damages for a highway laid out on the other line and not on the true section.line, finding it necessary to take 44/2' acres of appellant’s land for said highway, they rendered an inconsistent verdict, unwarranted by either the facts or law of the case. Eliminating all question or consideration of the Kelly survey from the case and recognizing the highways as correctly located by the Thornthwaite survey, the verdict appropriates 2% acres of appellant’s land for highway purposes in excess of the quantity authorized.

Aside from the validity of the statutory steps taken by the commissioner to lay out a highway, which as a rule involves only questions of. law for the court, to be determined from the records and undisputed facts, the usual and paramount issues for the trial are public necessity for the highway and the damages which should be awarded to those whose property is taken. It becomes evident at once, as was graphically illustrated in this case, that before a jury can understandingly determine and justly award damages, they must know what land is included within the right of way and necessary to be taken. In one case the road might so invade the adjacent owner’s curtilage, taking fences, orchards, buildings, and other valuable improvements, as to result in heavy damage, while in another case, though but a short distance away, it might take only unimproved or unoccupied land and the damage be comparatively slight.

Either the jury should have been positively instructed that the established highway took the piece or strip of land as’marked and laid out according to the survey made a part of the return of the commissioner, which survey could not be questioned and must alone be considered in awarding damages, or that, the location being in dispute, the jury must first determine from the conflicting evidence the true line and location of the road, and then assess damages with reference to the land so taken. In the latter case, after the jury determined the identity of the land within the right of way and assessed appellant’s damages with reference to it, that strip of land in law and in fact became the location where the road must run; therefore the finding of the jury on that question became a material part of the verdict. A jury could not determine the true location of the road to be in one place for one purpose and the commissioner or court determine it to be in another place for another purpose.

These proceedings are purely statutory. The provisions for appeal might seem to suggest in the first instance, as held by the trial court, that only the two questions of necessity and damages were open for consideration on appeal.

Section 8 of said Act No. 288 authorizes an appeal from decisions of the township board. The pertinent parts of that lengthy section, amongst other things, provide:

“Any party or parties dissatisfied with the determination of such township board, either as to the value of the property taken or as to the determination upon the necessity for laying out, altering or discontinuing a highway, when the amount involved or damages claimed exceeds the sum of three hundred dollars, may appeal therefrom to the circuit court for the county in which, said land is situated, and a return may be compelled and the same proceedings shall be had thereupon, as near as may be, and with a like effect as in cases of appeal from judgments rendered before justices of the peace, * * * and the said circuit court shall also have full power and jurisdiction over said proceedings to hear and determine the same and render judgment therein, as if the said proceedings had been originally commenced before the said circuit court. And either party to said proceedings on said appeal shall be entitled to have the issue in such proceedings tried by a jury, as in ordinary suits in said court.”

It is to be borne in mind that this road was intended to be and purports to be laid out one-half mile in length on a section line running south from the north section corner post between sections 1 and 2 to the quarter post, an authentic, official government survey which had once been made and marked, and of which public record existed. The petition, return of the commissioner, and all the surveys are directed to and in harmony with that proposition. The record contains no suggestion to the contrary. The highway commissioner had authority to lay out a highway on this line without a petition or application from any one. Section 1 of said act, subdivision 4. The purpose of the survey was not to run a new line for a highway, but to relocate on the ground the old government survey. The location of one end of the old line was in dispute, and that question was timely raised by appellant. All the surveys in evidence were directed to the same end and claimed to have done exactly the same thing, retraced the old section line from the section corner post, which was not in dispute, to the quarter post half a mile south, which was in dispute.. This raised an issue of fact in the proceeding, which appellant was entitled to have tried by jury and settled before steps were taken to open and improve the highway. We think by fair construction the statute authorized this, and that such construction is in avoidance of multiplicity of suits and protraction of litigation, for otherwise the aggrieved party must be. relegated to a subsequent action of trespass or in ejectment or. a suit for an injunction in order to determine the question.

In Hartz v. Brown, 165 Mich. 660 (131 N. W. 75), it is said this statute furnishes a complete and adequate remedy by appeal to, the 'circuit court. It would be inadequate and incomplete if the question of where the true line was, when an issue of fact, could not be finally determined between the contesting parties, on an appeal to be tried “as if the said proceeding had been originally commenced before the said circuit court.”

For .the reasons stated, the case is reversed and a new trial granted.

McAbvay, C. J., and- Brooke, Kuhn, ¿'tone, Ostrander, Bird, and Moore, JJ., 'concurred.


source: Caselaw Access Project

license: Public Domain

text:
    CUNNINGHAM v. IRWIN.
    1. Accord and Satisfaction — Payment—Compromise.
    The rule of law is generally recognized as well settled hy the great weight of authority that payment of less than the full amount of a past-due, liquidated, and undisputed debt, although accepted and receipted for as in full satisfaction, is only to be treated as a payment pro tanto, and does not estop the creditor from suing and recovering the balance.

    2. Same — Exceptions.
    , The following exceptions to this general rule are recognized: when the claim is unadjusted or unliquidated; when payment is made before it is due; when a new security is given; when there is a composition with creditors and where part payment in full settlement is made by a third party who is a stranger to the claim and under no legal obligations in relation to it.

    3. Principal and Agent — Contracts—Payment.
    The question whether an agency exists is a mixed question of law and fact.
    4. Same.
    A gratuitous payment, though made upon request, by a father, of his son’s debts, to which he is a stranger and for which he is not legally responsible, does not necessarily involve an agency in law: one may act in the interest of another, with or without his knowledge, without becoming technically his agent.
    5. Accord and Satisfaction — Compromise — Principal and Agent.
    Where defendant’s father gratuitously undertook to pay his obligation that was due to plaintiff, paying in full satisfaction and settlement of the debt a less sum, without any consideration or promise of the son to pay back the amount advanced for this purpose, which was withdrawn from the private funds of the parent, and where the son did not bring about this arrangement, and where plaintiff intended to and did deal with the father as principal, looking to him and receiving the funds in settlement, it was a valid accord and satisfaction for a series of notes which defendant had executed to plaintiff in adjustment of a balance due on an open account.
    Error to Macomb; Tucker, J.
    Submitted June 8, 1914.
    (Docket No. 37.)
    Decided October 2, 1914.
    Assumpsit in justice’s court by John A. Cunningham against Alphonso J. Irwin upon five promissory notes. From'a judgment for plaintiff, defendant appealed to the circuit court. • Judgment for plaintiff. Defendant brings error.
    Reversed.

      Silas B. Spier (William F. Sawn, of counsel), for appellant.

      William S. Jenney, for appellee.

       On the question of accord and satisfaction by part payment of liquidated and undisputed demands, see note in 45 L. R. A. (N. S.) 1063.

       As to the effect of payment of debt by a volunteer or stranger to the original undertaking, see note in 23 L. R. A. 120.

   Steere, J.

This case involves the question of an alleged discharge of debt by way of accord and satisfaction through payment by or through a third party of less than the demand, which was accepted and receipted for by the creditor as a settlement in full.

The action was commenced August 13, 1912, in a justice’s court of Macomb county to enforce payment by defendant of five promissory notes of $50 each, given by him to plaintiff, on June 19, 1908, at Jacksonville, Fla., where they both then resided. Plaintiff was in the furniture business, and defendant, who at that time was running a restaurant and hotel there, had dealt with him, buying furniture, rugs, etc. These notes are the last of a series, aggregating $943.30, given .in adjustment of, and to cover, a balance then owing on his account. They are serially numbered, and due a month apart, the last one falling due 18 months after date. The earlier notes of the series were paid. Defendant subsequently removed to Mt. Clemens where he resided when this suit was begun.

On the return day of the summons, August 22, 1912, plaintiff declared orally on the common counts and specially on the five notes. Defendant orally pleaded the general issue and statute of limitations. The cause was then adjourned until September 10th, when trial was had. At that time, by permission of the court, defendant withdrew his former plea, and by a plea puis darrein continuance claimed settlement and satisfaction of plaintiff’s demand, producing and offering in evidence receipts in full'therefor given defendant’s father. Objections to this evidence were sustained by the justice, and judgment rendered upon the notes and interest in the sum of $300, the limit of jurisdiction of that court. From this judgment defendant appealed to the circuit court, where the case was tried without a jury.

It appears undisputed from the evidence and findings of the court that defendant’s father, R. L. Irwin, who resided at Jacksonville, Fla., was an old acquaintance of plaintiff, and in an interview with the latter in his store an agreement was entered into between the two, on August 27, 1912, by which R. L. Irwin paid plaintiff $125 in full of all demands against his son, including these five notes, plaintiff agreeing to write his Mt. Clemens attorney to deliver up the notes upon which suit had been brought, at that' time giving R. L. Irwin the following receipt:

“Jacksonville, Florida, Aug. 27, 1912.
“Received of Mr. Raymond L. Irwin, address St. Augustine, Florida, one hundred and twenty-five dollars ($125) on account, subject to agreement, account Alphonso J. Irwin in full.
“No. 13528. John A. Cunningham,
“By D. C. Corus.”

Subsequently, but bearing the same date, apparently to make more clear the “agreement” of the first receipt, plaintiff gave him the following receipt:

“Jacksonville, Florida, August 27, 1912. .
“Received of Raymond L. Irwin for account of Alphohso J. Irwin, one hundred and twenty-five ($125.00) dollars in full of all demands, including five (5) notes forwarded to our attorney, William S. Jenney, Mt. Clemens, Michigan, for collection.
[Signed] “John A. Cunningham.”

On September 12, 1912, plaintiff gave the following letter, addressed to his Mt. Clemens attorney, to R. L. Irwin, who at once forwarded it to defendant at Mt. Clemens:

“Jacksonville, Fla., September 9, 1912.
“Mr. Wm. S. Jenney,
“Attorney at Law,
“Mt. Clemens, Mich.
“Dear Sir:
.“This will confirm our letter to you of August 27th. Kindly surrender the five notes, which you were handling for collection, to Mr. Irwin, as we have accepted his'check at this'end of the line in settlement of the matter. ••
“Yours respectfully,
“John A. Cunningham,
“D. C. Corus, Manager.”

Plaintiff’s attorney refused to recognize this settlement, and proceeded with the suit as stated, treating the $125 as payment on account. His reasons and position in the matter are embodied in the following motion to strike out evidence of such settlement:

“There is no question about it in this State that a compromise where a man pays you $125 in settlement of a $300 claim and receives from the creditor a promise to accept that in full settlement is absolutely void, and it does not bar recovery unless there is some consideration other than the $125, and no consideration other than that has been shown, and I think that receipt should, be stricken out until such time as such consideration is shown.”

Against this defendant’s counsel contended that the demand was in dispute, and not liquidated; that the money was paid in settlement of a suit then at issue involving a legal controversy, and by a third party who was a stranger to the indebtedness, under no legal obligation in that connection.

The rule of law is generally recognized as well settled by the great weight of authority that a payment of less than the full amount of a past-due, liquidated, and undisputed debt, although accepted and receipted for as in full satisfaction, is only to be treated as a payment pro tanto, and does not estop the creditor from suing for and recovering the balance. This is ancient bench law, supported by no statutory authority or rule of property, and, though often criticised as unreasonable, unfair, and unjust, it is said its long and general acceptance commends itself to the courts with almost irresistible force. This aspect of the rule is commented- on in Tanner v. Merrill, 108 Mich. 58 (65 N. W. 664, 31 L. R. A. 171, 62 Am. St. Rep. 687), which, however, recognizes the rule, and in 1 R. C. L., p. 185, with many authorities cited, where it is said:

“And as it is rigid and unreasonable and defeats the express intention of the parties, it should not be extended to embrace cases not within the very letter of it.”

The reason upon which the rule is now held to be founded is that such agreement is without consideration, which appears to be equally satisfying as that of Lord Coke, who, in an early day, pronounced it a proper rule “because it appears to the judges that by no possibility a lesser sum can be a satisfaction for a greater sum.” In a number of States the rule has been abrogated by statute, and in a few repudiated by the courts. Of the latter are Clayton v. Clark, 74 Miss. 499 (21 South. 565, 22 South. 189, 37 L. R. A. 771, 60 Am. St. Rep. 521), and Frye v. Hubbell, 74 N. H. 358 (68 Atl. 325, 17 L. R. A. [N. S.] 1197), where the subject is entertainingly reviewed.

The rule is, however, recognized in this State in line with the weight of authority which now recognizes numerous exceptions, amongst which are: When the claim is unadjusted or unliquidated; when payment is made before it is due; when a new security is given; when there, is a composition with creditors; and where part payment in full settlement is made by a third party who is a stranger to the claim and under no legal obligations in relation to it. While.this court, in accepting the general rule, has had little occasion to deal with these exceptions, they are well settled by almost universal weight of authority.

Defendant claimed and introduced testimony, against objection, to show that, although notes were given in adjustment of his account, the goods purchased from plaintiff had not all then been delivered, and some of them proved not to be as. represented, that he had claimed a rebate, and that he'notified the plaintiff, who promised to make it right,. or make a reduction on the last payment. This .claim was very flatly disputed and met by testimony which we think fully sustained the finding of the court that the claim was liquidated, and—

“That the notes in question in this suit were given in settlement for whatever account the defendant then owed the plaintiff, and the defendant cannot now be heard to say that this controversy was still open and subject to further compromise' on the 27th day of August, 1912.”

Plaintiff makes no denial or explanation of the settlement with R. L. Irwin, nor the written evidence of it, nor the circumstances as related by the latter, although plaintiff’s testimony was taken by deposition, with, his counsel present, after the settlement was pleaded. He ignores the subject in his testimony, which is devoted to the nature of the consideration for the notes, the circumstances of giving them, denial that any question of rebate was left open, and, in general, to sustaining them as a valid, liquidated demand. The only evidence of his repudiating the settlement is the continuance of the litigation.

The trial court was of the opinion the fact that a suit was pending which would be stopped by the settlement would not be a new consideration which rendered the compromise valid, and, amongst other things, said:

“It is contended by the plaintiff that the settlement made by Raymond L. Irwin in Florida was really a settlement by the defendant through him. On the other hand, it is the claim of the defendant that the settlement by Raymond L. Irwin was made on his own account, although with the knowledge and consent of the defendant. * * * This question of whether the payment made by R. L. Irwin by check on R. L. Irwin’s own private account, although the payment was directed by and made for A. J. Irwin, amounted to a valid discharge of the entire debt is really the only question in the case.”

Based upon the assumption or finding that the payment was directed by and made for A. J. Irwin, and consequently to be construed as if he had himself made the same in settlement of his notes, the court found, as a conclusion of law, that the case was governed by, and could not be distinguished from, Bliss v. Shwarts, 65 N. Y. 444, in which it was held, under the circumstances of that case, that where an agent of the debtor negotiated a settlement with the creditor for less than the full amount of the debt, and closed the transaction by giving his own draft in lieu of the money, which was accepted and receipt given in full settlement of the debt, the acceptance of the draft instead of cash did not amount to a new consideration, and recovery could be had for the balance of the original indebtedness.

Agency is a mixed question of law and fact, and to ascertain if this conclusion of law is supported by any legal evidence resort must be had to the testimony. The only testimony bearing on this claim of agency is that of the defense, and is undisputed. Defendant himself testified that the first notice he had that the notes were sent to an attorney for collection was when he was served with a summons by the sheriff, which he took to an attorney, and he afterwards wrote his father, with whom he regularly corresponded, mentioning this and telling him the situation. Plaintiff’s counsel relied upon, and the court accepted as conclusive proof of agency, an affidavit of R. L. Irwin filed in the case, over the admission of which there was a controversy we do not deem it important to consider here, in which he briefly relates the circumstances of the settlement made by him with plaintiff, saying, in part, that:

“The said sum of $125 paid by him * * * was in full settlement and satisfaction of said notes of A. J. Irwin, and was paid at the request of said A. J. Irwin, for him, the said A. J. Irwin.”

Relying upon and quoting this language as sufficient proof of agency, the court found:

“If this is true, the matter is to be considered as if A. J. Irwin had himself paid the $125 in settlement of the notes in question.”

R. L. Irwin does not say the $125 was paid with his son’s money, or even on any promise of the son ever to pay it, or on any agreement with the son to pay it for him, but, on the contrary, testifies positively that he independently made the settlement with plaintiff, paying the amount agreed upon with his own money drawn from his private account, without any arrangement or agreement with his son to reimburse or remunerate him for any expense and service in making the settlement. He states: That he was an old acquaintance of plaintiff, who, at about the time of sending the notes to an attorney for collection, told him of it, and witness said in reply:

“I don’t think it requires a suit against the boy, and let me know what the amount (account) can be settled for, and perhaps you and I can settle, and he went into his office and saw his manager and said he would settle and for me to make an offer.”

That thereupon they went over the matter, negotiated and settled as stated, plaintiff stating amongst other things: When a settlement was reached and the $125 paid, that A. J. “Irwin’s account was closed in full.”

A gratuitous payment, though on request, by a father of his son’s debts, to which he is a stranger and for which he is not legally responsible, does not necessarily involve an agency in law. It is elementary that one may act in the interest of another, with or without his knowledge, without becoming technically his agent. An agency in legal concept is a legal contract, and, to be binding, must possess all the legal elements of a contract, amongst which is a valid consideration. Plaintiff is now seeking to defeat this very settlement because it was void for want of a consideration, and by claiming a contract of agency in which he fails' to show consideration, and which the testimony shows was without promise of reward or even reimbursement.

Conceding any elements of agency shown, they were gratuitous and undisclosed. Plaintiff manifestly intended to, and did, deal with the father as a principal, looking to him for and receiving from him the money paid in settlement.

In the foregoing and other particulars the case of Bliss v. Shwarts, supra, is distinguishable. In that case the settlement was effected by and through George Butler & Co., firm of collecting agents, professionally acting as - such, their agency for the debtor being a pure business matter, known and understood by all parties. A question of composition with the defendant’s creditors was involved, and they were active in his behalf in that respect. Plaintiff refused to accept the general proposition of settlement offered to creditors. Negotiations were had in which a settlement was reached between the parties for a payment by defendant of a certain sum “in cash.” “To carry out this settlement,” Mr. Butler gave his draft to the agents of plaintiff, for and with his firm acting as agent of defendant in perfecting the transaction. The court held this was no new consideration from a third party, but simply a “means of payment,” and said:

“A very different question would have been presented if the agreement had been to take the draft of Mr. Butler in lieu of the plaintiff’s claim. * * * There was no bargain that Mr. Butler’s money should be used, or that his draft should be taken. That was but an incidental matter connected with the principal act, which was the payment of cash by the defendant.”

In this case it is undisputed that the bargain was that R. L. Irwin’s money should be used, or his check taken in lieu of plaintiff’s claim, which was the principal act, with no suggestion between the contracting parties that defendant was to pay anything.

In this case the evidence is undisputed that when the settlement was consummated R. L. Irwin (irrespective of at whose request or whether he was reimbursed later) made his own bargain with, and paid his own money to, plaintiff, which is the gist, of the third party exception to the general rule. The agreement contemplated furnishing the money by a third party, and it was- so furnished; the money paid never belonged to the debtor and a new consideration moved from said third party for plaintiff’s benefit. When this is true the questions of agency and request are not necessarily controlling. In 2 Chitty on Contracts (11th Am. Ed.), p. 1183, it is said:

“But the correct doctrine would appear to be that satisfaction made by a stranger to a party having a cause of action, and adopted by the party liable to the action, is a good bar to an action for such cause. And so it would seem that, if the defendant and the party from whom the satisfaction proceeded, stood in the relation of principal and agent, such satisfaction would be a good bar for the defendant.”

In volume 1 of Ruling Case Law, a work assuming to winnow by a process of judicial and editorial selection the essence and drift of leading decisions, the law upon this question is. thus stated, on page 193, §28:

“The view that such a part payment may so operate is another well-settled exception to the general rule as regards part payments of liquidated demands, and it is settled that if part payment is made by a third person at the request of and with the authority of the debtor, and is received by the creditor in full satisfaction, there is a good accord and satisfaction, as the creditor receives a benefit in securing the payment by such third person; otherwise, due to the financial condition of the debtor, he may not have been able to secure payment of any part of the debt.”

We are of opinion there is no testimony in this case to sustain the finding that there existed a contract of agency of legal force to defeat the third party exception to the rule plaintiff invokes, that the record conclusively discloses a settlement'made with and payment .of his. own money by.-a volunteer, third party, a stranger to the demand and under no legal obligation to pay it; that it was by authority of the debtor; was received and receipted for by the creditor in full satisfaction of his claim; and that it operated as a valid'accord and satisfaction between the parties to this action.

The judgment is reversed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred.


author: Bird, J.

text:
    GUSTIN v. FITZPATRICK.
    1. Taxation — Title—Notice—Logs and Logging — Timber.
    After a valid sale for taxes and after the period of redemption has expired, the State possesses the absolute title; the only interest which the landowner has is the privilege of securing a reconveyance upon sale to an individual by the State. .
    2. Same — Timber—Replevin.
    The owner of the record title of land which haS been sold to the State for delinquent taxes, the period of redemption having expired, and which is thereafter acquired by a purchase- of the tax title, has no right to maintain replevin for posts and ties, cut on the premises, although a statutory notice has not been served by or on behalf of the holder of the tax interest.
    Error to Cheboygan; Shepherd, J.
    Submitted June 3, 1914.
    (Docket No. 16.)
    Decided October 2, 1914.
    Replevin by Henry K. Gustin against Thomas Fitzpatrick and Henry Fitzpatrick for a quantity of ties and posts. Judgment for defendants upon a directed verdict. Plaintiff brings error.
    Affirmed.

      H. K. Gustin, in pro. per.

      Victor D. Sprague, for appellees.
   Bird, J.

The plaintiff brought an action of replevin to recover the possession of certain fence posts and ties which he claimed to own, by reason of their having been cut from certain lands which he owned on section 24 in' Cheboygan county. It was conceded that he acquired the original title thereto in July, 1906, and that the same was duly recorded in the register of deed’s office for Cheboygan county. Plaintiff omitted to pay the taxes assessed thereon for the years 1906 and 1907, and, as a result thereof, the lands were sold and bid in by the State for the taxes of 1906. After the equity of redemption had expired, and on the 5th day of August, 1910, the lands were sold to the Michigan Land & Title Company. This company conveyed it to one William Gainor, who cut the fence posts and ties in the winter of 1910 and 1911, and sold them to the defendants. Neither the Michigan Land & Title Company nor Gainor served the statutory six months’ notice required by the statute. The lands were wild and unimproved, and plaintiff never had the actual possession of them. Upon this state of facts the conclusion of the trial court was that, inasmuch as there was an outstanding tax title at the time of the commencement of suit, which plaintiff had made no attempt to redeem, or to obtain a reconveyance of, he could not maintain the replevin suit, and therefore directed a verdict for the defendants. The assignments of error present the question as to whether the trial court was in error in so disposing of the case. The question therefore presented by the record is whether the owner of the original title to lands may maintain replevin for timber cut therefrom, while a valid outstanding tax title is held by another, but before the six months’ notice is given. It is conceded upon the record that the tax title held by Gainor is a valid one, but it is argued by plaintiff’s counsel that, until he served the statutory six months’ notice, the plaintiff has, or ought to have, such an interest in the lands as would entitle him to maintain the suit. Counsel present an able argument to the effect that the tax laws, construed as a whole, evince an intention upon the part of the legislature to leave such right in the original owner until the six months’ notice terminated it. The difficulty of giving the provisions of the tax laws'this construction becomes apparent from the repeated decisions of this court in which it is held that after a valid sale for taxes, and after the period of redemption has expired, the State possesses the absolute title to the land, and that the only interest which the landowner has is the privilege of securing a reconveyance upon a sale of the land by the State. Griffin v. Kennedy, 148 Mich. 583 (112 N. W. 756); Haney v. Miller, 154 Mich. 337 (117 N. W. 71, 745); Haney v. Auditor General, 165 Mich. 681 (131 N. W. 386); White v. Dunsmore, 167 Mich. 542 (133 N. W. 523).

If there is to be any change in the tax law as now construed by this court, we think it should be effected by additional legislation rather than by the court. The conclusion of the trial court was the proper one. The cáse is ruled by White v. Dunsmore, supra, where the questions are fully discussed.

The judgment is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


author: Moore, J.

text:
    PEOPLE v. GRIMM.
    1. Certiorari — Justices of the Peace — Return.
    The return of a justice of the peace in certiorari to review respondent’s conviction of the crime of larceny must be taken as true.
    2. Larceny — Value—Evidence—Inferences.
    Testimony in a larceny case that the hog which respondent was accused of having stolen weighed 137 pounds and had been sold for about 10 cents a pound, sufficiently tended to prove the value of the animal and sustained a conviction of the charge: evidence as to value might properly be of an inferential character.
    3. Venue — Criminal Law — Justices of the Peace.
    Testimony that stolen property was taken from the farm of a person in- Dorr township, at the trial of a larceny case before a justice, sufficiently proved the venue to be in the county in which the action was tried and in which a township of Dorr was located; and the jury might properly take judicial notice that such township was situated in that county.
    Error to Allegan; Cross, J.
    Submitted June 12, 1914.
    (Docket No. 102.)
    Decided October 2, 1914.
    Louis Grimm was convicted of larceny and removed the cause to circuit court by certiorari. The conviction was affirmed. Respondent brings error.
    Affirmed.

      Grant Fellows, Attorney General, and E. W. Stone, for the people.

      Clare E. Hoffman, for respondent.
   Moore, J.

This case was tried before a jury in justice’s court. Respondent was convicted, sentenced, and then removed the case to the circuit court by a writ of certiorari, where the same came on to be heard before the court on the 14th day of March, 1914.

The complaint and warrant charged respondent with stealing a hog of the value of $13, of the property of Jacob Laube, at the township of Dorr, in Allegan county, this State, on the 1st day of December, 1913.

The affidávit for a writ of certiorari is in the' usual form. The judgment and conviction is alleged to be void because:

(1) The testimony failed to show the value of the property alleged to have been stolen.

(2) There was no proof of venue.

(3) The testimony was insufficient to sustain a verdict of guilty.

The circuit judge sustained the conviction. .The case is brought here by writ of error.

It is a well-established rule that the return to a writ of certiorari must be accepted as true. Galloway v. Corbitt, 52 Mich. 460 (18 N. W. 218); Alt v. Lalone, 54 Mich. 302 (20 N. W. 52); People v. Etter, 72 Mich. 175 (40 N. W. 241); Henika v. Brown, 155 Mich. 559 (119 N. W. 1083). Accompanying the application for the writ is what purports to be a transcript of the testimony.

The return of the justice contains the following:

“I do certify that the transcript of the testimony attáched to said affidavit does not contain all the evidence given on the trial of said cause, and that the witness Frank Laube testified that the hog which it was claimed was stolen by the said Louis- Grimm weighed the sum of 137 pounds, and that said hogs, one of which was stolen, had been sold to Mr. Pitsch at North Dorr, at the price of a little less than 10 cents per pound, which was conclusive evidence that the hog claimed to have been stolen was worth about $13.”

On the question of the proof of venue, the justice makes the following return:

“That the evidence produced on said trial was that the place where the hog was taken from was at the home of Jacob Laube, who lived on a farm about 2% miles west of Dorr, in Dorr township, being southeast of here about five miles (the case being tried at Burnips Corners), and that said transcript of the testimony is not a true and correct transcript of the testimony given on said trial in the particulars above stated.”

There is testimony in the transcript of the record also tending to show the venue.

1. Is there sufficient proof of value? The complaint states the value to be $13. Does not the proof warrant a fair inference that the hog was of value?

In 2 Wharton’s Criminal Law (11th Ed.), §1190, the rule is stated thus:

“In order to constitute the offense of larceny * * * it is necessary at common law that the thing stolen be of some value, however small.”

And in section 1194:

“There need be no direct evidence of value of the article stolen. The value may be inferred generally from the facts in evidence.”

The note to this section contains a copious note to the same effect. Underhill on Criminal Evidence, § 298; McClain on Criminal Law, § 582; 25 Cyc. p. 127; 18 Am. & Eng. Enc. Law (2d Ed.), p. 519. We think the return shows that the requirements of the rule were met.

2. Was there proof of venue? The complaint was made and the case tried by a jury in a court held by a justice of the peace in Allegan county. The testimony was that the property was taken from the farm of Mr. Laube in the township of Dorr. Dorr is one of the townships in Allegan county. It was very proper for the jury and the court to take notice that the township of Dorr was in Allegan county. See People v. Telford, 56 Mich. 541 (23 N. W. 213); People v. Curley, 99 Mich. 238 (58 N. W. 68); People v. Ayers, ante, 241 (148 N. W. 383).

3. Was the testimony sufficient to sustain a conviction? It would profit no one to quote the testimony. A careful reading of it satisfies us that, after listening to it, no normal juror ought to hesitate a moment in finding that relator was guilty of the offense charged.

Judgment is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.


text:
    BOLENDER v. SOUTHERN MICHIGAN TELEPHONE CO.
    Telegraphs and Telephones — Highways—Shade Trees.
    Shade trees in the highway adjacent to a farm belong to the owner of the land and may not be destroyed or injuriously trimmed by a telephone company in violation of 2 Comp. Laws, § 6691 (3 How. Stat. [2d Ed.] §7214), Act No. 283, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 234?).

    Error to St. Joseph; Knowlen, J.
    Submitted June 17, 1914.
    (Docket No. 88.)
    Decided October 2, 1914.
    Case by William F. A. Bolender against the Southern Michigan Telephone Company for injuries done to shade trees in the public highway. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      H. P. Stetvart (Boudeman, Adams & Weston, of counsel), for appellant.

      George H. Arnold, for appellee.

       As to the liability to abutting owner for mutilating trees in highway by erecting poles or stringing wires, see notes in 12 L. R. A. (N. S.) 1125; 30 L. R. A. (N. S.) 1084, and 51 L. R. A. (N. S.) 1082.

   Moore, J.

This suit is brought to recover damages for the cutting of shade trees by .defendant company. From a judgment of $250 in favor of the plaintiff, the case is brought here by writ of error.

The version of the plaintiff as to what happened is as follows:

“I reside in Lockport township; my farm joins on the west side of the village of Centreville. I have resided there 30 years. I am the plaintiff in this case. The Southern Michigan Telephone Company put a line along what is known as the Centreville road in the latter part of October, 1906, as near as I can remember. In putting that line through, they cut the crown right out of the trees that were in the road. There were 2 large oaks, 1 elm, and 39 hard maples. Those trees had been set out there when I bought the farm; they were quite nice trees; They were very thrifty trees. They had a nice appearance. Aftei the cutting of the crown of them they looked pretty bad; the tops were all cut out. There is a row on each side of the street, and they are now about 10 feet lower than those on the other side. I couldn’t say how much of the tops they took out, but they must have taken off 10 or .15 feet. There is branches there that are— oh, they are 6 inches in diameter, 5 or 6 inches, standing straight up; the heart of the tree is cut off. Those limbs have died down now, and the bark is all off about 4 feet from the top, they are dead. * * * The damage by depreciation of the farm is at least $1,000.”

It was the claim of defendant that it did no more trimming than it was obliged to do, and that, in fact, no injury was done to the trees or the farm.

We quote enough from the brief of counsel to present its claim:

“The case is peculiar in this, that here was, by a public service corporation, a public work which of necessity must be placed within the public highway, and which was authorized to be so constructed.
“It is just as essential that a telephone line be constructed as it is that a telegraph line, a sewer, a waterworks, an electric light plant, a gas plant, or a railroad be built. Perhaps these various public service concerns are not all of equal value to the community, but certainly our modern civilization calls for the use of the telephone more than it does for some of the other things mentioned, although all of such things are of considerable convenience. * * *
“A highway is made for public convenience and as a public necessity, and the person who owns the land over which such highway passes is paid for his land which is taken just the same as he is paid for it if a railway company takes a portion of his land for railway purposes. If a railroad gets and pays for 100 feet in width across a farm, the man who formerly owned the strip has no right to plant trees on it, and on principle he ought not to have any more right to plant trees upon the land taken for the public use as a highway. * * * This action is one of trespass upon his lands, according to the plaintiff’s declaration. The trees in question standing in a public highway, there could be no trespass on the lands described. If any right of action accrued to plaintiff on account of the alleged cutting of these trees, it was an action of trespass on the case, not for an entry and trespass upon his farm, but for the injury of property in which he had an interest standing within the highway.”

These various claims make it important to consider the status of the parties.

In 4 Words and Phrases, under the subject “Highway,” at page 8297, appears the following:

“A highway is nothing but an easement comprehending merely the right of all the individuals in the community to pass and repass, with the incidental right in the public to do all the acts necessary to keep it in repair. This easement does not comprehend any interest in the soil, nor give the public the legal possession of it. Adams v. Rivers, 11 Barb. (N. Y.) 390, 398); Kelsey v. King, 33 How. Prac. (N. Y.) 39, 44; Peck v. Smith, 1 Conn. 103, 132 (6 Am. Dec. 216); In re Road from Fitzwater St. to Shippen St., 4 Serg. & R. (Pa.) 106; Starr v. Camden & A. R. Co., 24 N. J. Law, 592, 597; Smith v. City of San Luis Obispo, 95 Cal. 463 (30 Pac. 591, 593); Newton v. New York, N. H. & H. R. Co., 72 Conn. 420 (44 Atl. 813, 815); Lynch v. Town of Rutland, 66 Vt. 570 (29 Atl. 1015, 1016).” * * *
“Highways are regarded as easements in the land over which they are laid out; hence the owner of the land is not divested of his title, but it is merely made subject to the easement. When a highway is laid out the public acquires no more than a right of way with the powers and privileges incident to that right, such as digging the soil, cutting timber and other materials within the space of the road in a reasonable manner for the purpose of making and repairing the road and its bridges. Jackson v. Hathaway, 15 Johns. (N. Y.) 447, 452 (8 Am. Dec. 263 [cited and approved in Whitbeck v. Cook, 15 Johns. [N. Y.] 483, 490, 8 Am. Dec. 272]).” * * *
“A public highway is a way in which the public are entitled to a right of passage. The title to the soil, stone, etc., in such a way continues in the owners of the lands over which the way passes. The land is merely dedicated to the public for particular purposes. Chambers v. Furry, 1 Yeates (Pa.), 167, 169.”

Whatever may be said of the rights of the public in the streets of a city, we think these quotations are descriptive of the rights of the public in a country highway.

In Clark v. Dasso, 34 Mich. 86, Chief Justice Cooley, speaking for the court, made use of this language :

“The policy of our laws, as is clearly indicated by the statute already quoted, favors the planting and preservation of shade trees in the public streets where they do not constitute actual obstructions. Undoubtedly there must be some officer clothed with,authority to protect the highways against the excessive planting or the improper location of trees, and the commissioner of highways is a very suitable officer to be intrusted with this authority in the townships. But, where he is authorized to order the removal of shade trees, it is a great mistake to assume that he may exercise his power in a wanton or reckless manner with impunity. Certain principles must always govern the action of these officers, if they are to keep within the protection of the law. In the first place, the policy of the law is to be considered, which would be wholly defeated if one had no better protection for his shade trees than the whim or caprice of successive commissioners, any one of whom might destroy in an hour all that had been accomplished in many years. Then, again, it is to be remembered that the trees are the property of the adjacent owner, who cannot lawfully be deprived of any species of property in the summary mod'e which was adopted in this case.”

In People’s Ice Co. v. Steamer “Excelsior,” 44 Mich. 229 (6 N. W. 636, 38 Am. Rep. 246), Justice Marston made use of the following language:

“Ordinarily it may be said that the entire width of the highway may be used, yet the owner of the land over which it passes may, within the limits thereof, plant trees, set posts, and do such other acts as will add to his convenience or assist in beautifying his premises. He is encouraged in doing this by public sentiment: in the remission of taxes by the public authorities for the planting of trees; and in the protection which the law gives him by the punishment of those who interfere with or destroy what he has done. Public convenience may in time in particular locations require the removal of some of these things, and, whenever the necessity arises and the public authorities request their removal, then the private must give way to the public or paramount right. But while permitted to remain, no one traveling the highway could wilfully injure or destroy them, and should any one do so he would justly be held responsible, notwithstanding his plea of a claim of right to travel over any part of the highway. If the law were otherwise, the streets in our cities and villages, and our public highways, would soon be stripped of their shade and ornament. Clark v. Dasso, 34 Mich. 86.”

The legislature has recognized the desirability of shade trees in highways and in 2 Howell’s Statutes (2d Ed.), § 2345, provides many details as to where they shall be placed. Section 2346 authorizes the highway commissioner to set out shade trees and to expend a share of the public moneys for that purpose. Section 2348 reads as follows:

“2348. Sec. 4. Telephone companies shall have power to construct and maintain lines of wire or other material, for use in the transmission of telephonic messages along, over, across, or under any public places, streets and highways, and across or under any of the waters in this State, with all necessary erections and fixtures therefor: Provided, that said telephone companies, before the construction and erection of said telephone lines and poles, shall first obtain the consent of the duly constituted authorities of the city, village or township through or along which said telephone lines and poles are to be constructed and erected: Provided further, that the same shall not injuriously interfere with other public uses of the said places, streets and highways, or injure, deface, tear, cut down, or destroy any tree or shrub planted along the margin of any highway in this State, or purposely left there for shade or ornament nor shall the same interfere with the navigation of said waters, or the running of railway trains.”

We had another statute in relation to telephone companies and the rights possessed by them in the highways. That statute was construed in Wyant v. Telephone Co., 123 Mich. 51 (81 N. W. 928, 47 L. R. A. 497, 81 Am. St. Rep. 155), and a reference to that opinion will show it to be in harmony with some of the views expressed by counsel which we have already quoted, but, after that opinion was handed down, the so-called “telephone statute” was amended so as to now read as follows:

“Every such corporation shall have power to construct and maintain lines of wire or other material, for use in the transmission of telephonic messages along, over, across, or under any public places, streets and highways, and across or under any of the waters in this State, with all necessary erections and fixtures therefor: Provided, that the same shall not injuriously interfere with other public uses of the said places, streets, and highways, or injure any trees located along the line of such streets or highways.” Section 7214, 3 How. Stat. (2d Ed.), 2 Comp. Laws, § 6691.

The statute we have just quoted was construed in Boland v. Telephone Co., 161 Mich. 315 (126 N. W. 425). The opinion in that case settles against the contention of appellant many of the questions involved in this case.

The instant case, then, presents a situation where the plaintiff is the owner in fee of the land where the shade trees are, with the public having an easement in the highway, which is properly described in the quotations we have made from Words and Phrases. The telephone company has such rights in the highway as the statutes of the State have given it, and it possesses no other rights therein. The language used in sections 2348 and 7214, which we have quoted, is not ambiguous. No right is given in those sections, to a telephone company, to injure, cut down, or destroy any shade tree; not only so, but to do those things is forbidden. As the rights of the company are limited by the statute, when it goes outside of the limitations imposed by the statute, it becomes liable in damages.

We find no reversible error.

Judgment is sustained.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.


text:
    LAKE-ULRICKSEN CO. v. GRAND LODGE I. O. O. F.
    Principal and Agent — Contracts—Directing Verdict.
    In an action for coal which plaintiff claimed, to have provided for use during the construction of a society home for indigent members or families of defendant, evidence considered and held, to present an issue of fact whether the hoard having charge of the construction work authorized the purchase of the materials.
    Error to Jackson; Parkinson, J.
    Submitted June 19, 1914.
    (Docket No. 23.)
    Decided October 2, 1914.
    Assumpsit in justice’s court by the Lake-Ulricksen Company against the Grand Lodge of Independent Order of Odd Fellows for coal sold and delivered. From a judgment for plaintiff defendant appealed to circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Brakie J. Orr, for appellant.

      John E. Shekell, for appellee.
   Moore, J.

During the years 1907 and 1908, the defendant caused to be erected in Jackson, at an expense of upwards of $30,000, a home for its aged and indigent members and their widows and orphans. The contract for the construction of the building was let to Doland & Co. The plaintiff furnished materials that went into the building, and coal which was used to heat the building during the construction. The bill, amounting to more than $2,000, was paid, except the coal bill, amounting to about $51. It was to collect this amount suit was brought in justice’s court. No contest was made in that court by defendant. From a judgment in favor of the plaintiff, an appeal was taken to the circuit court, where a trial was had before a jury. From a verdict and judgment in favor of the plaintiff of $63.56, the case is brought here by writ of error.

There are many questions argued by counsel for the appellant, but the decisive question is whether the court erred in submitting the case to the jury instead of directing a verdict for the defendant, as requested. As before stated, the defendant let a contract for the construction of the building to Doland & Co. It is the plaintiff’s claim that, soon after entering upon the work, this company became financially embarrassed, and that an arrangement was made which we cannot state better than to quote the substance of the testimony of Mr. Ulricksen, a member of the plaintiff company, as follows:

“Shortly after Mr. Doland commenced this building as contractor, Mr. Barr, with whom I had a number of conversations, in one of the earlier or first conversations with me, told me that 'Mr. Doland had taken the contract at a considerably lower figure than the others, and that he was financially unable to carry on the work, not having any capital; that the board, of which Mr. Washington L. Barr was president, had taken out of Mr. Doland’s hand the financial end of the affair; and that, if we continued to furnish material for the building, we should render invoices for each and every item as delivered, and at the end of each month render an itemized statement for Mr. Doland to check up his- invoices with, so that he could pass them on to the architect for his approval and estimates, and that payments would be made direct to us by the board of control. This arrangement was carried out absolutely to the letter, and on a number of occasions I personally brought monthly statements to Mr. Doland myself. Payments upon this account were made by mail by checks, as shown here this morning, but in no instance were settlements in full for any monthly statements made; in other words, the checks received were only to apply on account of the previous statement as rendered. I could explain that more fully by saying that on December 31st we have a credit of $800, which applied on a statement rendered December 1st of $950. * * * Prior to making this payment of $800, we had delivered on November 26th one item of coal and another one on December 23d. These items were included in that statement. When this check was sent for $800, no attention was called to the fact they did not intend to pay for the coal items or any other item, but simply to apply on account. We had another remittance March 12th, which was shown this morning, of $300. Between the payment of the $800 on December 24th and March 12th we delivered three different lots of coal, one on December 9th, $8, one on February 6th, $11.80, and one on February 13, $11.80. There was nothing indicating any items would be kept out. * * * Bills including the coal were rendered every month, and remittances were made while these deliveries were being made, but not for the full amount of the bills rendered. There never was any statement from anybody that the omissions to remit in full were on account of the coal items and on no items never. The first that we knew at all about the coal items having been taken out and eliminated was their last settlement, which was made on July 24, 1908. * * * We have received no remittance from them since then. There is a balance of $55.51 that hasn’t been paid for stuff we furnished to the Odd Fellows’ Home.”

Before this testimony was received, Mr. Barr was called as a witness by the plaintiff. He denied that he had a talk with Mr. Ulricksen of the nature indicated in his testimony, and denied that he had any authority to make any such arrangement. In his testimony the following appears:

“To the best of my recollection I never saw Mr. Ulricksen there only on two different occasions. I know who had charge of the building of that home. It was built by the Odd .Fellows of the State of Michigan. The Grand Lodge furnished the money and built the home. It belongs to them, and always has. I was a member of the board of control at the time the home was built. The board represented the Grand Lodge in the building of the home. I was president of the board of control. The Grand Lodge had the charge of the building of that home, and the board of control represented the Grand Lodge in the building of it, and was given certain money to expend for the building of it. Reports were made to them and through them to the Grand Lodge in the interim. They represented the Grand Lodge in the interim, and, as far as I know, represented the Grand Lodge in the building of the home. I went upon the board in October, 1906, and resigned in October, 1909.
“Q. Now, just tell what the board had to do with the building of the home out there, Mr. Barr. * * * What did you have to do with it — your board?
“A. There was an architect employed to furnish plans and specifications. Those plans and specifications were accepted by the board of control, and the board advertised for bids, and the contract for the building of the home was let to John L. Doland & Son, of Battle Creek. E. A. Bowd, architect, of Lansing, was employed as supervising architect. We paid the bills upon estimates given from time to time, according to the terms of the contract. I can’t tell you who signed the contract with Doland & Sons, whether the board signed it or the officials of the Grand Lodge. The secretary, Mr. Wilde, will be able to tell that. * * *
“Q. You made the arrangements; the board of control, you as president, made arrangements with Mr. Doland, didn’t you?
“A. I should say, yes. The board of control was constituted, I think, at that time, of Mrs. Ida M. Bailey, of Traverse City, R. G. Jackson, of Negaunee, was treasurer, and Theodore Merrill, of Kalamazoo, and Mrs. Addie F. Carpenter, of Grand Rapids — in 1906. * * * It was the duty of this board to make the contract, employ an architect, and see that the home was built. I was president of the board, but had no duties whatever in regard to the home, other than being a member of the board. We simply acted as a committee, and represented the Grand Lodge in the interim of Grand Lodge meetings, making full report of our actions to the Grand Lodge at the proper time, and were given that authority by the Grand Lodge.
“Q. Now, after you — you did employ an architect yourself, didn’t you?
“A. The board did.
“Q. You, as president?
“A. Yes. * * * I was represented here in this city by Mr. W. J. Evans, who made weekly and often daily reports to me at my home in Cheboygan, Mich. The estimates of the architect were handed by Mr. Doland to W. J. Evans, of the city of Jackson, who mailed them to me, and I sent them to the secretary. * * '* We added extras to the building, new furnishings, and so on, put seats in what we called the assembly room; they were ordered by the board by myself, and paid for on our order from requisitions we drew, out of the funds furnished by the Grand Lodge for the maintenance of the home itself and for permanent improvements.”

There was also introduced in evidence three checks, all alike except dates and amounts, one of which reads as follows:

“Union Bank No. 78.
“Jackson, Mich., Dec. 27, 1907.
“Pay to the order of Lake-Ulricksen Co., $800.00 eight hundred and no/100 dollars.
“Grand Lodge, I. O. O. F. of Michigan,
“Washington L. Barr, Pres.,
“Board of Management, Odd Fellows’ Home, Building Fund.
“John A. Wilde, Sec’y.”

And a letter which came with the last check, reading as follows:

“July 22/08.
“Lake-Ulricksen Co.,
“Jackson, Mich.
“Gentlemen:
“Inclosed please find check for $128.30, balance due for materials furnished John L. Doland & Son, contractors for the Odd Fellows’ Home Building at Jackson, Mich.
“This covers the amount of your itemized statement, less $55.51 for coal, which, you will please present to Mr. Doland for settlement.
“Very truly yours,
“John A. Wilde,
“Sec’y Board of Management.”

Explanations were made, on the part of the defendant, as to the giving of these checks and the sending of the letter which'it is insisted makes them inadmissible as evidence against the defendant for any purpose.

There is other testimony which we will not quote, which plaintiff insists tends to support its theory that agency has been shown, or at least an appearance of agency upon which it was authorized to act. We think, in view of the relation this board of control sustained toward the procuring of the plans and the making of the contract for the erection of the building, and the. dispute between the plaintiff and Mr. Barr, that the question of agency could not be decided as a matter of law, under Whitaker v. Kilroy, 70 Mich. 635 (38 N. W. 606); Hirschmann v. Railroad, Co., 97 Mich. 384 (56 N. W. 842); Constantine v. Beet Sugar Co., 132 Mich. 480 (93 N. W. 1088); 1 Am. & Eng. Enc. Law (2d Ed.), p. 990, and the many notes thereto.

Judgment is affirmed.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred.


text:
    GABLE v. TOWNSHIP BOARD OF THREE OAKS.
    1. Intoxicating Liquors — Retail Liquor Dealers — Bond — License — Approval—Townships—Municipal Corporations.
    Townships have no authority to suppress the liquor traffic by ordinance.
    2. Same — Bond—Rejection.
    It is not within the authority of a township board to reject a bond offered by a retail liquor dealer who applies for a license, on the ground that the instrument is signed by a surety company, 'without reference to the legal sufficiency of the bond or an investigation as to the actual responsibility of such surety.
    3. Same — Application—Place oe Business.
    Only the township, ward or village in which the applicant proposes to do business need be stated in the application: any additional information, whether correctly given or not, should be treated as surplusage. Act No. 291, Pub. Acts 1909 (3 How. Stat. [2d Ed.] § 5058).
    4. Same — Bond—Requisites.
    However, the rule is different as to the bond, which must distinctly describe the locality and place where he proposes to establish the business, and the lot or building and location must be exactly stated so as to distinguish it from any other and prevent the licensee from moving without securing permission of the township or other authorities.
    5. Same.
    Although application and bond may be considered and approved at the same meeting, and are sometimes passed upon together, the application should be considered first. And while the rejection of the bond may have been warranted because it failed to state, with sufficient particularity, the place where relator intended to conduct his saloon, mandamus will issue to compel respondent to reconvene and approve a proper application.
    Certiorari to Berrien; Bridgman, J.
    Submitted July 25, 1914.
    (Calendar No. 26,288.)
    Decided October 2, 1914.
    Mandamus by David F. Gable to compel the township board of Three Oaks to réconvene and approve his application for a retail liquor dealer’s license and to approve his bond. Relator reviews on certiorari an order denying the writ.
    Reversed.

      O’Hara & O’Hara, for appellant.

      Gore & Harvey, for appellee.
   Steere, J.

This proceeding is instituted to review on certiorari the action of the circuit court of Berrien county in denying relator a writ of mandamus to compel the township board of Three Oaks township, in said county, to approve his bond and application for a liquor license. Said township, exclusive of a village of the same name within its boundaries, contains a population of 798 persons, according to the census of 1910, and no saloon for the sale of intoxicating liquors has existed in said township for many years.

On April 18, 1914, relator filed with the clerk and presented to the township board of said township his application for a liquor license and bond in connection therewith, in the sum of $6,000, signed by himself and the Michigan Bonding & Surety Company. The bond was a regular liquor dealer’s surety company bond, and the application followed the usual form, in general compliance with the statutory requirements, stating, however, as to location:

“That the place in which he proposes to carry on such business is the one-story frame building in the east part of the east one-half of southeast quarter, section 4, town 8 south, range 20 west, in the township of Three Oaks,” etc.

The same description of the “place of business” is also set out in the bond.

At a meeting attended by all members, held April 22, 1914, the township board unanimously rejected said bond and application.

On April 25,1914, relator applied to the circuit court of Berrien county for a writ of mandamus to compel said board to “convene and approve the application for license and liquor bond of your petitioner,” etc., upon which the court issued an order requiring said board to show cause why the writ applied for should not be granted. Return to said order and answer to relator’s petition having been made, the court, after a hearing had thereon, denied said petition and refused to issue the writ of mandamus as requested. The return to this writ of certiorari comprises copies of the petition and answer, with other files and records, including the opinion of the court in said mandamus proceeding. The facts are practically undisputed.

The verified return and answer of the township board to the order to show cause, amongst other reasons, stated that an investigation revealed there “is no one-story frame building in the east part of the east one-half of the southeast quarter of section 4, town 8 south, range 20 west, in the township of Three Oaks, Berrien county, Mich., and respondents also aver that said David F. Gable is not the owner of any land in the east part of the east one-half of the southeast quarter of section 4, and has no valid lease or rights therein, said lands and premises now being occupied and used by Schuyler Ray for farming purposesthat an ordinance, a copy of which is set out, previously adopted by said board, prohibiting the licensing of saloons for the sale of intoxicating liquor in said township, was in force when such application was made; that said bond was refused, as appears by the record of said meeting, “for the reason that said township board does not deem the said surety company a proper, responsible, or sufficient surety,” and under the law and facts “respondent had a legal right to reject both the application and bond.”

Most of the questions raised in this proceeding were reviewed in full and determined contrary to respondent’s contentions in the recent cases of Price v. Township Board of Oakfield, ante, 216 (148 N. W. 438); McCabe v. Township Board of Burnside 181 Mich. 683 (148 N. W. 197).

It is sufficient to state that, under those decisions and others which have gone before, township boards have yet no authority to suppress the liquor traffic by enacting prohibitory ordinances. The ordinance which respondent pleads as justifying it in rejecting relator’s application was without authority of law and void. Neither was it within the power of the board to arbitrarily reject relator’s bond on the ground that it was a surety company bond, without reference to its legal sufficiency, or without honestly and in good faith making an investigation of and determining the actual responsibility of the surety.

The remaining ground of refusal, that the “place of business” is not sufficiently nor truthfully described, is of legal force as to the bond, but not as to the application. For the latter, the statute only requires the applicant to state the “ward, village or township” in which it is proposed to carry on such business. Section 4, Act No. 291, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §5058). This application distinctly states that it is proposed to carry on such business in the township of Three Oaks, Berrien county, State of Michigan. All further description is mere surplusage.

But, when the applicant comes to present his bond for approval, he is required to be more definite in stating the locality, and the designated place where he proposes to establish his business must be distinctly described, to the exclusion of any possibility of migration, so that the exact building, lot, location, or place is plainly pointed out and can be distinguished from any other, for the licensee is prohibited from carrying on the business in any other building or place than that specified in said bond, without first giving notice, securing consent of the local authorities, and executing another bond describing the new location. Section 8 of said act; People v. Lester, 80 Mich. 643 (45 N. W. 492); People v. Brown, 85 Mich. 119 (48 N. W. 158). The bond was clearly questionable in the particular stated, and, when it further appeared that no such building as-it assumed to describe was in existence in that locality, respondent was legally justified in rejecting it.

Although it is common for the presentation and consideration of an application and bond to take place at the same meeting of the municipal board, and the two are often taken up together, the application must nevertheless be considered and passed upon first. Each should be separately considered in its proper order. It would of course be idle for an applicant to present a bond if his application was legally rejected, but the opportunity is given him to procure his bondsmen, and execute and present his bond after he ascertains his application is approved. Section 4 of said act, . amongst other things, provides:

“If such application shall be approved by said board as provided in this act, such applicant shall then present to said board for approval a bond. * * * Such approval of any such application shall expire and be null and void if the applicant therein does not, within two weeks of the date of such approval, execute the satisfactory bond, secure the approval of such bond,” etc.

Relator’s petition asked that respondent be directed to reconvene and do two things: First, grant his application for a license; and, second, approve his bond.

While the refusal to approve the bond found support in the statute, and was justified for the reason stated, the only reason shown for rejecting the application at any time, calling for serious consideration, is its claim that the so-called Warner-Cramton law, as amended, authorized township boards to prohibit and suppress the liquor traffic within the township. That question has since been settled against respondent’s contention, in the recent cases before mentioned, and we are constrained to conclude that, as to relator’s application for a license, the writ of mandamus prayed for must be granted directing said township board to reconvene and reconsider relator’s application, and if found without legal objections, in compliance with the statute, to approve the same.

In view of the condition of the law at the time of respondent’s refusal, we are satisfied that its members acted in good faith. For this, and the further reason that good cause was shown for not approving relator’s bond, no costs herein will be allowed to either party.

McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred.