text:
    ATTORNEY GENERAL, ex rel. MOORE, v. AMERICAN EXPRESS CO.
    1. Courts — Jurisdiction—War-Revenue Tax.
    State courts have jurisdiction of a proceeding to compel an express company to receive and forward goods tendered to it by a patron, which involves the determination of the question whether the company or the patron must pay for the revenue stamp required by the federal statute to be affixed to the company’s receipts.
    2. Corporations — Neglect oe Public Duties — Mandamus.

      Mandamus will lie by the attorney general, on the relation of an individual, to compel an express company to perform the duties imposed upon it by law with reference to the receiving and forwarding of' goods.
    3. Same — Joint-Stock Associations.
    Circuit Court Rule No. 46, giving circuit courts jurisdiction in mandamus proceedings involving the action of any “private corporation,” uses the term “corporation” as embracing joint-stock associations, and other associations of a corporate nature.
    4. Express Companies — Revenue Stamps — Liability.
    Under the war-revenue act of June 13,1898, making it the duty of express companies to issue to every shipper or consignor a bill of lading or other evidence of receipt, to which there shall be attached a revenue stamp of the value of one cent, and prescribing a heavy penalty for failure to issue such bill, the express company, and not the shipper, has the duty of paying for the stamp.
    5. Same — Evasion oe Duty — Increase oe Rates.
    The duty resting upon the company under said act cannot be evaded by it, and the burden shifted to the shipper, by adding in each transaction, to its former fixed charges, the cost of the stamp, under the pretext of establishing new rates by virtue of its authority to prescribe reasonable regulations for its business.
    6. Same — -Mandamus by Attorney General — Parties Interested.
    A writ of mandamus issued in a proceeding instituted by the attorney general, on the relation of a shipper, to compel an express company to receive goods for transportation without requiring the consignor to pay the stamp duty imposed by the war-revenue act of June 13, 1898, should not be limited to the parties to the record, but may run against the express company for the protection of the shippers within the State, where it definitely appears from the petition and answer that the requirement complained of is the uniform practice of the company.

      Certiorari to Wayne; Frazer, J.
    Submitted November 15, 1898.
    Decided December 6, 1898.

      Mandamus by Fred A. Maynard, Attorney General, on the relation of George F. Moor? and others, to compel the American Express Company to receive and forward goods without requiring the payment of the stamp tax by the consignor. From an order granting the writ, respondent brings certiorari.

    Affirmed.

      Warner, Códd & Warner, for relators.

      Wisner & Harvey (H. C. Wisner, of counsel), for respondent.
   Long, J.

The attorney general, on the relation of various merchants in the city of Detroit; filed a petition in the Wayne circuit court for a mandamus to compel the respondent, its officers, agents, and servants, to receive, accept, transmit, and deliver any and all goods, wares, and merchandise duly offered and tendered to it, in- boxes, packages, etc., for transportation, when the fees and charges for such goods shall be paid or tendered, and to issue to the shippers or consignors throughout this State a bill of lading or evidence of receipt for each shipment, with the stamp duly attached thereto and canceled by it, as provided by the act of Congress of June 13,1898, entitled “An act to provide ways and means to meet war expenditures, and for other purposes,” without' requiring of consignors or shippers said stamp, or the value thereof. The court below issued an order to show cause, and, a return having been made to such order by the respondent, the court granted the writ as prayed. The case comes into this court by certiorari'.

The respondent is a joint-stock association organized and existing under the laws of the State of New York, and having its principal business office in the city of New York. It is a common carrier, transacting express business, so called, and engaged in the business of receiving, carrying, forwarding, and delivering goods, wares, and merchandise. It is doing business in this State in pursuance of a license issued by the state treasurer under and by virtue of chapter 103, 1 How. Stat. The petition shows that the respondent, upon delivery of packages to it for transportation as a common carrier, refused to accept goods for transportation unless the shipper or consignor would pay for the stamp provided by said act of Congress; that this refusal was general throughout the State, by all its officers and agents; and that it has 489 agencies within this State. The respondent, in its answer filed in the court below, admits many of the allegations in the petition, but it alleges that in the act Congress has refrained from providing, as between shipper and carrier, which shall bear the burden of the tax, thereby intending to leave it a matter of adjustment between the parties, conditioned, however, that the tax must be paid; that the respondent, being organized and having the right, under the statutes of this State, to carry on an express business, becomes vested with the right to regulate the carrying on of its business by reasonable rules and regulations, and to fix, and insist upon the payment of, such rates of transportation as it deems best, provided the same are not .unreasonable in amount nor in manner of payment; that, the enactment of the stamp act referred to being an important change in the then condition of things, it becomes necessary for respondent to change and regulate its method of transacting business, and to re-establish its rates of transportation, so that it may meet the change in a way to .prevent its resources from being so depleted as to weaken its financial condition; that respondent therefore decided ta raise, and has raised, its rates of transportation to an amount reasonable and just, and only necessary to meet the change of conditions made by the act, and save itself from great loss of revenue and profits as compared with its earnings before the passage of the act, which it has the lawful right to do; that under its right to regulate its manner of doing business, and with view to accommodating the public, so far as paying said increase of rates, respondent has accorded to responsible shippers the right to pay such increase (either using a stamp or money for the purpose) upon delivery of the goods, and the privilege of paying the balance of the rate of transportation at the point of delivery to the consignee. It is admitted that this change in the manner of doing business in effect throws the burden of the tax upon the shipper, but it is claimed that such effect is in accordance with the principie of taxation that the burden shall be distributed equitably among the many, rather than be cast upon the few; and it is claimed that should the respondent be compelled to pay the tax, which would amount to many thousands of dollars, without the right to guard against the effect of such expenditure in the manner adopted by it in raising its rates of transportation, as has been done, its financial condition would be greatly weakened.

In the answer it is also alleged that, in any case of pretended violation of its duties as set forth in the petition, it was not pretended or alleged that the charges were paid or tendered; but it appears from the opinion of the court below that this point was abandoned on the argument there, and the case was left to the court below to decide the same as if the charges had been tendered. That question will not, therefore, be discussed here, but it will be taken as settled that the charges were so tendered.

The act of Congress (30 U. S. Stat. at Large, chap. 448) provided:

“Sec. 6. That on and after the first day of July, 1898, there shall be levied, collected, and paid, for and in respect of the several bonds, debentures, or certificates of stock and of indebtedness, and other documents, instruments, matters, and things mentioned and described in Schedule A of this act, or for or in respect of the vellum, parchment, or paper upon which such instruments, matters, or things, or any of them, shall be written'or printed, by any person or persons or party who shall make, sign, or issue the same, or for whose use or benefit the same shall be made, signed, or issued, the several taxes or sums of money set down in figures against the same, respectively, or otherwise specified or set forth in the said schedule. * * *
“Sec. 7. That if any person or persons shall make, sign, or issue, or cause to be made, signed, or issued, any instrument, document, or paper of any kind or description whatsoever, without the same being duly stamped for denoting the tax hereby imposed thereon, or without having thereupon an adhesive stamp to denote said tax, such person or persons shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall pay a fine of not more than one hundred dollars, at the discretion of the court, and such instrument, document, or paper, as aforesaid, shall not be competent evidence in any court.”

Schedule A of said act, among other things, provides as follows:

“Express and Freight: It shall be the duty of every railroad or steamboat company, carrier, express company, or corporation or person whose occupation is to act as such, to issue to the shipper or consignor, or his agent, or person from whom any goods are accepted for transportation, a bill of lading, manifest, or other evidence of receipt and forwarding, for each shipment received' for carriage and transportation, whether in bulk or in boxes, bales, packages, bundles, or not so inclosed or included; and there shall be duly attached and canceled, as is in this act provided, to each of said bills of lading, manifests, or other memorandum, and to each duplicate thereof, a stamp of the value of one cent: Provided, that but one bill of lading shall be required on bundles or packages of newspapers when inclosed in one general bundle at the time of shipment. Any failure to issue such bill of lading, manifest, or other memorandum, as herein provided, shall subject such railroad or steamboat company, carrier, express company, or corporation or person to a penalty of fifty ■dollars for each offense; and no such bill of lading, manifest, or other memorandum shall be used in evidence unless it shall be duly stamped as aforesaid.”

The relators contend that the duty to pay this tax is cast upon the respondent by the terms of the act, and that, when the proper charges were tendered for the transportation, it became the duty of the respondent to undertake the carriage, and that respondent has no right, under the guise or pretense of raising its rates, to cast 'this burden upon the public.

1. It is contended by counsel for respondent that the question is one over which the federal courts have exclusive jurisdiction. We cannot agree with counsel in this contention. This is not an action for the recovery of the penalty which the statute imposes for failure to issue the bill of lading, but a proceeding for an order to compel the respondent, a common carrier, to accept and carry the goods tendered it for shipment when the regular charges are paid or tendered. The respondent is a common carrier, and as such it is its duty to receive for carriage and to carry the goods of any person tendered to it for transmission, provided they are such as it holds itself out as willing to carry, and the party tendering them offers to pay its proper charges. This duty is imposed by law. 5 Am. & Eng. Enc. Law (2d Ed.), 158, 159. The respondent is permitted to do business in this State, though not incorporated under the laws of the State, but it is subject to all the duties and obligations which the law imposes upon common carriers; and for a refusal to carry goods when tendered, and charges paid, the State courts may be appealed to for redress. This matter is entirely between the shippers and the company. This view is held by the attorney general of the United States in a recent opinion, in which he says:

“In controversies arising between shippers and express companies as to which one shall be required to bear the expense of the stamp, the general government has no direct concern under the war-revenue law.”

The general government, it appears, refuses to proceed against express companies for a violation of the act, unless it be made to appear that the company has accepted goods for shipment, and has refused to attach the stamp to the receipt given therefor; that is, the general government may and will prosecute for the penalty fixed by the act when goods are received and shipped without the company’s affixing the revenue stamp to the receipt or bill of lading, but it will not interfere between the public and. the company for refusal to carry. The commissioner of internal revenue on August 1, 1898, decided that the aggrieved parties, — that is, the parties offering goods for shipment,- — -when the company refuses to carry without payment of the stamp, must depend for redress upon the common or the statute law of the State defining the obligations of common carriers.

2. Unless, therefore, the shipper should pay the tax, the company is bound to carry, upon the payment or tender of the regular charges. The company is vested with the exercise of public functions under the permissive power of the State; and, when it refuses to discharge the duties imposed by law, mandamus is the proper remedy to compel the discharge of that duty. The American courts have taken such occupations under their control, and, regarding them as public agencies, have enforced the common law or the statutory law against them, and have not hesitated to grant the writ of mandamus against any party who, having assumed public duties, refuses to discharge them. Haugen v. Water Co., 21 Or. 411; Olmsted v. Aqueduct Proprietors, 47 N. J. Law, 311.

But counsel contend, further, that the power given to the circuit courts to issue mandamus rests upon Cir. Ct. Rule No. 46, which provides, “Circuit courts shall have jurisdiction within their respective counties in all mandamus proceedings involving the action of any officer or board of any county, township, city, or school district, or of the common council of any city or village, and the action of any private corporation or officer or board thereof,” and that, this rule not having included joint-stock associations, the circuit courts are not vested with power to issue the writ. “Corporations” and “associations” are convertible, and often used as synonymous, terms. There is no reason for. any distinction or discrimination between corporations and joint-stock associations, in applying this rule. It is the intent of the rule to place all mandamus proceedings of this character primarily in the circuit courts. In reference to the assessment and collection of specific taxes, the legislature of this State has recognized the terms as convertible. Section 1255, 1 How. Stat., provides:

“The term ‘corporation,’ as»used in this act, shall be construed to include all associations and joint-stock companies having any of the powers or privileges of corporations not possessed by individuals or partnerships.”
In Maltz v. American Express Co., 1 Flip. 611, it was held that, whether a corporation or not, a joint-stock association is a distinct legal entity, and that so long as this fact exists, and it possesses the attributes of perpetual succession, and the capacity of suing and being sued, it is a juridical person, and must be regarded as a citizen of the State which creates it; and it is wholly immaterial whether it be termed an “association,” “joint-stock association,”. ot “guild.”

3. J'he main question in the case relates to the construction to be placed upon the act in question. By the act every express company is compelled to issue to every .shipper or consignor, etc., a bill of lading for each shipment received for carriage, to which bill of lading and duplicate thereof there shall be attached and canceled a stamp of the value of one cent. The law therefore imposes upon the carrier the obligation to issue the receipt. With this the shipper has nothing to do. He delivers the package to the company, and pays or tenders the usual charges. This ends the shipper’s duty, and the law then compels the carrier to issue the receipt or bill of lading. This bill must be stamped, and the stamp canceled. It is evident that it is as much the duty of the company to place the stamp upon the receipt and cancel it as it is to issue the receipt. This duty is made more apparent by 'the fact that the act further provides that failure to issue the receipt makes the carrier so failing amenable to a heavy penalty. But it is contended by counsel, in a brief filed with this court, that the penalty was directed, and intended by Congress to be directed, to the failure to issue the receipt, and nothing more, leaving the question of the stamping of the same to be settled by the parties. It seems to us that what is meant by this clause is that the receipt must be such as is provided, — that is, a receipt bearing the proper stamp, — -and that the penalty is provided for such a failure as this. It is, and always has been, the custom of express companies to issue receipts for goods delivered for shipment. The only interest the government has or can have is the affixing and cancellation of the stamp to aid it in its war revenues. We are therefore led to the conclusion that the duty to issue the receipt, and the penalty prescribed for the failure to do so, imply that it is to be a receipt which would bring the government the revenue provided. Therefore the act makes it the duty of the company to affix the stamp.

4. It is contended, however, that the company hhs. the right to make new regulations and establish new'rates to meet this burden. It is conceded that the effect of this is to throw the burden upon ¿the shipper. It is apparent upon the face of this proceeding that the very purpose of-this change in the regulations and the increase of rates is to avoid the payment of the tax, and thus cast upon the shippers the burden which the act of Congress puts upon the company. This is but an evasion and a subterfuge to avoid the terms of the act. The pretense that raising the charges on each package just one cent, without reference to the distance to be carried, the weight or bulk of the package, and the former fixed charges, is a regulation of charges, can hardly be treated seriously. If the charges established were regarded as too small, it would seem that the action would have been to make the additions in some manner to correspond to the length of carriage, weight, etc.; but to add one cent to every charge for carriage bears upon its face evidence of the attempt to evade the act. Where the charge established was 25 cents it is now 26 cents; where it was 50 cents it is now 51 cents; where $1 it is now $1.01; and so on, adding just one cent to each charge. It cannot be that this was done because the charge was too low for each carriage, however long the distance, or however weighty the article. The statement of this claim is its own refutation. We are aware that Judge Lacombe, of the United States circuit court of New York, has held the other way upon this question, in the case of Crawford v. Hubbell, 89 Fed. 961, as also the United States district courts of North Carolina and California; but we are unable to agree with those cases. Judge Tuley, in the superior court of Cook county, 111., has, however, held in accordance with our views here expressed. It is said by him that “it is not in fact a revision or increase of rates, but an arbitrary attempt of the company to maké the shippers pay a tax which the law requires the company to pay. The court must regard the substance of the contention, and not the pretense.” People, ex rel. Western Wheel Works, v. United States Express Co., 30 Chicago Legal News, 408.

5. It is further contended that the order of the court below is too broad; that the writ should run against the company only so far as to affect the parties to this record. The petition is filed by the attorney general of the State, in which it is stated that these cases constitute but few of the many of like character, and are presented for the purpose of representing the uniform course of practice of the respondent company. This is not denied by the answer, but, on the contrary, the claim is made therein that the regulation of its business affairs, and the change in its rates of transportation, throw the burden of the tax upon the shipper, by force of circumstances. It is thus apparent fhat the attorney general’s petition, taken with the answer of the respondent, is sufficient to show that the respondent is attempting to enforce this rule throughout the State in. its dealings with all its customers; and the case involves-the question whether the order should be broad enough to reach the rights of all classes who are shippers within the State. - We think the order should not be modified as-claimed.

The order of the court below must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    PEOPLE v. WILLIAMS.
    1. Criminal Law — Assault with Intent to do Great Bodily Harm — Sufficiency of Evidence.
    A conviction under respondent’s own testimony might properly he had, in a prosecution for assault with intent to do great bodily harm less than murder, where such testimony is to the effect that he, with no reasonable provocation, knocked the complainant down and kicked him in the head several times, and repelled with a knife the efforts of bystanders to interfere.
    2. Same — Continuare—Juror as Witness.
    A continuance on the ground that one of the jurors for that term of court was one of the res gestee witnesses for the prosecution, and that his name was indorsed on the information, was properly refused, where those jurors called upon the panel who-were acquainted with him stated that such acquaintance would not bias their minds.
    3. Same — New Witnesses — Indorsement on Information — Consent of Counsel.
    One week before a criminal cause was brought on for trial, the prosecuting attorney called one of respondent’s counsel to the rooms of the judge of the court, and stated that he proposed to> indorse upon the information the names of certain additional witnesses. Counsel made no objection at the time, but, after consulting with the other counsel, moved the court to strike off the names. Held, that in view of 2 How. Stat. § 9549, provid. ing that the prosecutor may, at such time before the trial as the court may prescribe, indorse the names of additional witnesses, the court was justified in denying the motion, notwithstanding no showing had been made as to when the prosecutor became cognizant of the fact that such witnesses were material to the prosecution.
    4. Same — Ruling not Prejudicial.
    One accused of an assault is not prejudiced by the court’s re. fusal at the trial to have indorsed on the information the name of an alleged witness, whose presence is denied by the other witnesses, and whose deposition thereafter'introduced in his behalf alleges that she ran away after seeing him strike complainant.
    5. Same — Jurors—Prejudice.
    ■ A juror is not disqualified to sit on a trial for assault, because he sat in a case in which the proprietor of the house in which respondent boarded was charged with keeping a house of ill fame, where he states that he has no opinion or prejudice on the question of the guilt or innocence of the respondent, nor any prejudice that would in any way affect his credit upon the stand as a witness.
    <5. Same — Evidence—Self-Defense—Instructions.
    Refusal to charge the jury on a trial for assault, that, if the respondent acted in self-defense, they must acquit, is not error, where there was no testimony in the case to warrant such a charge, and the jury might properly have convicted the accused upon his own testimony.
    Error to superior court of Grand Rapids; Burlingame, J.
    Submitted November 18, 1898.
    Decided December 6. 1898.
    George Williams was convicted of assault with intent to do great bodily harm less than the crime of murder.
    Conviction affirmed.

      Nathan P. Allen (Brown & Adams, of counsel), for appellant.

      Fred A. Maynard, Attorney General, Frank A. Rodgers, Prosecuting Attorney, and Benn M. Corwin, Assistant Prosecuting Attorney, for the people.
   Long, J.

Respondent was convicted in the superior court of Grand Rapids of an assault upon one Frank Daley, with intent to do him great bodily harm less than the crime of murder. The information was filed under section 9122a, 2 How. Stat. It appears that the respondent was convicted of a misdemeanor under a former complaint made by Daley, the complaining witness in the present case. That case came to this court, and was affirmed. City of Grand Rapids v. Williams, 112 Mich. 247. The case being remanded with directions to proceed to judgment, Williams was sentenced to 90 days’ imprisonment in the county jail, his term expiring about July 1, 1897.

The testimony in the present case introduced by the prosecution shows that, on the 4th of August following his release, respondent was fishing in Grand River from a footbridge, when Daley, in company with a Mr. Bennett, crossed the bridge. Daley passed the respondent some feet, and stopped to talk with a Mr. Ten Hopen. After some conversation, Daley asked Ten Hopen, “What are they fishing with, — worms?” At this respondent said, “Who are you talking to, — me?” Daley responded, “No; to this gentleman.” Respondent then said, “I thought you would have a lot of gall to speak to me;” adding some profane words. Daley responded, “I am not talking to you,” and started to go away, when respondent ran up behind him, knocked him down, and kicked him eight or ten times on the head. Mr. Bennett started to separate them, when respondent took out a knife, and struck at him, and said, “ I will stick this into you.” Bennett retreated, when respondent again knocked Daley down, and again kicked him. Daley finally got up, and started to run across the bridge, but was followed up by respondent, who overtook him, knocked him down again, kicked him, at the same time striking at him with a knife, and cutting a gash in his finger three-fourths of an inch in length, and saying to him, “You made me serve 90 days in jail, and I will cut your-white heart out.” Mr. Bennett then called others who were passing by to come and help him, when the respondent turned, and ran back across tho bridge. On his return across the bridge,' he stated to a Mr. Moon that he would kill Daley if he had to follow him to his house to do it. Daley was badly injured, and confined to his house for some two weeks or more.

The respondent was called as a witness in his own behalf. His testimony does not vary materially from the other witnesses as to what occurred, though he denies having used the knife on Daley. He does admit, however, that he drew it on Bennett, and that he knocked Daley down, and kicked him, as described by the witnesses for the prosecution. Under his own testimony, the jury might properly have found the respondent guilty of the offense charged.

Six errors are assigned by counsel for respondent:

1. A continuance was asked by respondent, for the reason that Mr. Bennett, one of the jurors for that term of court, was one of the res gestee witnesses for the prosecution, his name being indorsed on the information. This was denied. It appears that Mr. Bennett was on the bridge, and present at the time of the assault by respondent. The jurors, when called upon the panel, were fully examined, and were each shown to be qualified to sit. They were asked about their acquaintance with Mr. Bennett. Some of them had no acquaintance whatever with him, and those who knew him stated that such acquaintance would in no wise bias their minds. The mere fact that Bennett was returned as a juror for the term did not prejudice the rights of the respondent, though Bennett was one of the witnesses to be called in the case. If continuances are to be granted because some of the juroi'S are acquainted with the witnesses for the prosecution, it would be difficult to bring criminal cases on for trial at any term. There is no such rule as contended for. The matter of continuance rested in the discretion of the court, and there was no abuse of it here.

2. The trial of the cause was commenced on January 17, 1898. It appears that on January 10th the prosecuting attorney indorsed the names of two witnesses on the information. Before doing so, he called one of the counsel for the respondent to the rooms of the judge of the court, and stated to him that he proposed to so indorse the , names. Counsel made no objection at the time, but thereafter, on consultation with the other counsel, objection was made, and the court was asked to strike these witnesses’ names from the information. This was refused. Section 9549, 2 How. Stat., provides that the prosecuting attorney shall indorse on all informations the names of1 the witnesses known to him at the time of filing the same; and, at súch time before the trial of any case as the court may by rule or otherwise prescribe, he shall also indorse thereon the names of such other witnesses as shall then be known to him. We think the statute was complied with. The names were indorsed seven days before the trial commenced. It is true that no affidavit was-filed showing the time when the prosecuting attorney became cognizant of the fact that such witnesses were material for the prosecution; but, when their names were indorsed, counsel for respondent made no objection. The names could have been indorsed after the trial commenced, without the showing, if consented to by counsel for respondent. The court very properly refused to strike them off. People v. Howes, 81 Mich. 396.

3. During the trial, the respondent asked to have the name of one Dora Gardner indorsed on the information. This the court z’efused, and exception was taken. On motion for new trial, the same point was pressed, and the court said, in refusing the new trial:

“The prosecuting attorney stated that he had no knowledge of any such person as Dora Gardner being present, and that he had several witnesses who swore that no such woman, nor any woman, was present at the time of the assault, and the court doubts of .her being there at all. This Dora Gardner was used originally to try to get this case over the term, and finally, failing in this, she was used as a witness for respondent by deposition, which could not have been if she had been the people’s witness, so that the fact that her name was not on the information redounded to the respondent’s advantage.”

In addition to this, it appears from the testimony of Dora Gardner that all she saw was that respondent struck Daley, when she ran away from the scene. Under the circumstances, the respondent was not prejudiced by the prosecution’s failure to indorse the name of this witness on the information.

4. It is claimed that the court was in error in not sustaining the challenge for cause made against the jurors John Muir and Cornelius Kelley. It appears that the case of People against Eliza Conway was tried in that court a. few days before the case against respondent was called. Eliza Conway was charged in that case with keeping a house of ill fame. It was shown that respondent and Dora Gardner boarded at the Conway house. The above-named jurors were on the panel for the trial of the Conway case, and testimony was given on that trial as to the character of the house kept. These jurors were asked in the present trial whether they had any opinion, bias, or prejudice .at all on the question of the guilt or innocence of the respondent on the charge he was being tried upon, or any prejudice against him that would in any way affect his credit upon the stand as a witness. They answered, “Not in the least.” The court, in its sound discretion, overruled the motion to reject these jurors for cause. It was said in the case of People v. Thacker, 108 Mich. 654:

“It has been repeatedly held in this State; and may be regarded as the well-settled law, that one is not disqualified from serving as a juror, simply because he has heard and read about the case, and has formed an impression based upon what he has heard and read, if the impression is not of that fixed character which repels the presumption of innocence.”

And in People v. Barker, 60 Mich. 287 (1 Am. St. Rep. 501), it was said:

“The opinion entertained by a juror which disqualifies him is an opinion of that fixed character which repels the presumption of innocence in a criminal case, and in whose mind the accused stands condemned already.”

In the present case the jurors had no fixed opinion whatever, and, in fact, stated they had no bias or prejudice against respondent. The mere fact that they sat in another case, in which another party was charged with immorality, and that the respondent was an inmate in that house, did not disqualify them to sit in the present case. It was not error to overrule the motion to discharge for cause.

5. Counsel tor respondent substantially asked the court to charge the jury that, if they found that respondent was acting in self-defense, they must acquit. There was no testimony in the case which would warrant such a charge; and, as we have before stated, the jury might properly have convicted the respondent upon his own testimony.

This, in effect, covers the remaining assignment of error.

We find no error in the case, and the conviction must be affirmed.

The other Justices concurred.


author: Moore, J.

text:
    PEOPLE v. PHILLIPS.
    Forgery — Order for Property — What Constitutes.
    An instrument reading, “ Mr. G., would you let me have [certain property], and I will settle with, you,” signed “Mrs. S.,” is an “order” for property, within the meaning of 2 How. Stat. § 9213, relating to the crime of forgery.

    Error to Ingham; Person, J.
    Submitted November 18, 1898.
    Decided December 6, 1898.
    Clarence Phillips was convicted of forgery, and sentenced to imprisonment for three years in the state prison at Jackson.
    Affirmed.

      Bartlett Wiley, for appellant.

      A. M. Cummins, Prosecuting Attorney, for the people.

       On the question what instruments are of such legal efficacy as to be subjects of forgery there is an extensive note to the case of People v. Munroe, (Cal.) 24 L. R. A. 33.

   Moore, J.

The respondent was convicted of forgery, under section 9213, 2 How. Stat. The information charged, and Mr. Phillips pleaded guilty to, the forgery of an instrument reading as follows:

“Mr. Gleason, would you let me have one bottle of St.
Jacob’s oil, and I will settle with you when I come to town. I have a small bill with you now.
“Mrs. Smith, Gunnisonville.”

It is claimed that to forge such a paper is not a crime, under the statute. It is said this is not an order for property, but a mere request, and that, to constitute such an order as is intended by the statute, the drawer of the order must have a disposing power over the goods, and the person upon whom it is drawn must be under obligation to accept the order; citing Bish. Stat. Crimes (2d Ed.), §§ 328, 329; State v. Lamb, 65 N. C. 422; State v. Leak, 80 N. C. 403.

The English rule was originally as stated by. the counsel for respondent, and the North Carolina cases follow the English rule; but the weight of authority is quite the other way. The words “ any order * * * for money or other property ” should be given their usual and accepted meaning. If the construction urged by. counsel is to control, the evils which the statute sought to prevent may be suffered, and the offender go free. The criminally inclined would soon be so cunning as to frame the order in the form of a request, and direct it to one who was under no obligation to accept it, but who, nevertheless, would do so. The drawee of the order would he led to part with his money or property, the mischief would be accomplished, and the person wrongfully accomplishing it escape. We do not think this is consistent with the language of the statute, or the reason of its enactment. State v. Holley, 1 Brev. 35; People v. Shaw, 5 Johns. 236; State v. Cooper, 5 Day, 250; Hoskins v. State, 11 Ga. 92; Com. v. Fisher, 17 Mass. 46.

Judgment is affirmed.

The other Justices concurred.


text:
    BELCHER v. CURTIS.

    1. Mortgages — Withholding prom Record — Subsequent CredITORS.
    The withholding a mortgage from record in order not to impair the mortgagor’s credit operates as a legal fraud upon persons extending credit in reliance upon the mortgagor’s apparently unincumbered title.
    2. Same — Foreclosure—Partnership—Judgment by Conpession.
    One seeking to foreclose a mortgage which he withheld from record to enable the mortgagor, a copartnership, to obtain credit, cannot attack a confession of judgment in favor of one who extended credit in reliance upon the record, on the ground that it was signed by only one of the partners, where the partner not signing raises no question as to its validity.
    3. Same — Fraud—Judicial Sale — Estoppel.
    A judgment creditor as against whom a mortgage is fraudulent cannot, after purchasing the property at judicial sale under his judgment, challenge the validity of the mortgage, since competitors would take the incumbrance into consideration in making their bids, and the creditor cannot use the mortgage to prevent competition, while he secretly relies upon the debtor’s fraud to invalidate it.
    Cross-appeals from Eaton'; Dodds, J., presiding.
    Submitted October 5, 1898.
    Decided December 13, 1898.
    Bill by Fred S. Belcher, executor of the last will and testament of Frank S. Belcher, deceased, against Jonathan J. Curtis and Henry H. Curtis, copartners as Curtis & Son, and others, and also against Swift & Co., a corporation, and Wenzel Schrenk and others, copartners -as Schrenk & Co., judgment creditors of Curtis & Son, to foreclose a mortgage. From a decree for complainant except as to defendant Swift & Co., complainant and defendants Schrenk & Co. severally appeal.
    Affirmed.

      Huggett & Smith, for complainant.

      Garry G. Fox (A. W. Brickwood, of counsel), for defendants.

       Rehearing denied January 20, 1899.

   Moore, J.

This is a proceeding to foreclose the Belcher mortgage, to which Swift & Co. and Schrenk & Co. are made parties. The circuit judge found that the withholding of the mortgage from the record was a legal fraud against Swift & Co. and Schrenk & Co. He also found that Schrenk & Co. are not in a position to challenge the priority of the mortgage, but that Swift & Co. may challenge its priority. He granted a decree in favor of the complainant against all the defendants except Swift & Co., and postponed the mortgage as to its claim. The complainant appeals from that portion of the decree affecting the claim of Swift & Co. Schrenk & Co. also appeal from the decree.

It is claimed on the part of the complainant that the testimony of the copartners Curtis and son was not competent evidence, as Mr. Belcher is dead, and had knowledge of the same facts about which they testified. We do not think it important to discuss that question. While there is nothing to indicate any moral turpitude, it is not possible to read the record, omitting their testimony, without coming to the conclusion that the mortgage was withheld from the record because it was believed to record it would affect the credit of Curtis & Son. The withholding it from the record enabled them to obtain credit of Swift & Co. and Schrenk & Co., when they would not have been able to do so if the mortgage had been recorded. The failure to record the mortgage operated as a legal fraud upon these creditors.

The complainant attacks the judgment of Swift & Co. —First, because of its form; and, second, because the confession of judgment was signed qnly by Henry Curtis. We do not think the form of the judgment is fatally, defective. The property which is. sought to be reached by the execution issued upon the. judgment is partnership property. There is nothing in the record to show Jonathan Curtis ever questioned the right of Henry Curtis to confess judgment. In 1 Black, Judgm. § 57, it is said:

“ A member of a firm has no authority, by virtue of his mere relation to the partnership or his general power to act as its agent, to confess a judgment against the firm; and, if judgment be entered on such a confession, it will be void as against his copartners, though binding as a personal charge upon himself.”

In 17 Am. & Eng. Enc. Law, 1042, it is said that one partner, cannot confess judgment without the consent of his copartners, and the court will relieve the nonassenting partners, either by setting aside the judgment, or by restraining execution when issued against their individual property.

“But it will not be infex’red without proof that the confession was unauthorized, and the judgment cannot be * * * ' collaterally impeached. * * * Prior parol assent is sufficient, however, to authorize such a confession, and a subsequent ratification may be established by proof of circumstances indicating assent.” Id. 1045.

In the note to 1 Lindl. Partn. (2d Amer. Ed.) 644, it is said:

“ Though one partner cannot confess a judgment against another partner, even for a partnership debt, yet a creditor of the firm caxxnot be permitted to make objection to the judgment on that account; and a sale of partnership property, on axi execution issuing upon such a judgment, will pass a perfect title to the pux’chaser, axxd, if the first lien, will be entitled to the px’oceeds of the sale; but the judgment will not affect the persons xxor the separate property of the other partners. Grier v. Hood, 25 Pa. St. 430.”

And in Ross v. Howell, 84 Pa. St. 129, it was held that—

“The interest of all the partners in the pax'tnership property may be sold under an execution upon a judgment confessed by a single partner in the firm name and for a firm debt.”

There is no. question about the indebtedness. Tbe other partner is not questioning the judgmexit. We do not think the complainant is in a position to successfully do so.

Was the decree wrong as to Schrenk & Co.? The questions involved are not new in this court. When these defendants learned of the Belcher mortgage, they did not levy upon the property, and then seek to set aside the mortgage before making a sale. The mortgage was good between the mortgagors and the mortgagee, and as to every one else, except creditors who had been induced to give credit, who would not have done so had it been recorded. No one but Schrenk & Co. knew whether they intended to attack the validity of the mortgage. Other bidders at the sheriff’s sale found the property with what appeared to be a valid mortgage upon it. In making their bids, they would necessarily take that fact into consideration. Would it not be unfair to other bidders and to the mortgagee to enable the judgment creditor to make his bid, and then allow him to have the mortgage set aside ?

There is a full discussion of the principles involved, in the case of Messmore v. Huggard, 46 Mich. 558:

‘ ‘ It cannot plausibly be claimed that the law will suffer the judgment creditor to occupy any more favorable position as bidder at his sale than do all other persons. Judicial sales are required to be public for the purpose of inviting full and free competition, with the primary object of producing for the benefit of parties concerned as large a price as public biddings can secure for them. A secondary object is to give all who may desire the property an equal opportunity to compete for it. But full and free competition implies that all parties have equal knowledge of the state of the title; and the policj of the law is defeated if some one party may bid with such advantages as render competition impossible. Ledyard v. Phillips, 32 Mich. 13. But nothing can be plainer than that if the judgment creditor could bid with the secret assurance that he was to have an unincumbered title, when others must suppose they were buying subject to the mortgage, this assurance gave him an advantage in bidding to the full amount of the mortgage, and practically put competition entirely out of the question. Not only would this be unfair to other bidders, and for that reason inadmissible, but it would be particularly unfair to the mortgagee. When the sale appears to be of the equity of redemption only, the mortgagee has no occasion to trouble his mind about it; but, if he were distinctly notified that it was made in hostility to Jais mortgage, he might, even if conscious of his good faith, prefer to redeem, rather than encounter the risks of litigation. This would be his legal right, and it cannot lawfully be taken from him through a secret understanding between the officer and the creditor, of which he has neither actual nor implied notice. It is true that if the defendant Francis Huggard hhs knowingly accepted a fraudulent mortgage, and becomes a loser thereby, he is entitled to no sympathy; but even voluntary fraud does not put one’s interests out of the protection of the law, or entitle the party defrauded to confiscate them. A fraudulent conveyance is good as between the parties (Cleland v. Taylor, 3 Mich. 201; Millar v. Babcock, 29 Mich. 526; McMaster v. Campbell, 41 Mich. 513); and even creditors are not permitted to assail it, except by judgment and execution (Fox v. Willis, 1 Mich. 321). And there may be equities between the parties which will support a mortgage, void as to creditors, when the creditors do not attack it by proper proceedings. While, therefore, the complainant had an undoubted right to have the bona fides of the mortgage tested before sale, there can be no equity in permitting him to purchase the land apparently subject to the mortgage, and then to have its lien annulled afterwards. He has a right to reach his debtor’s property, and have it sold for what it will bring at a fair and open sale; but he has no claim to speculate out of his debtor’s fraud, and, by using the mortgage to keep others from competing, obtain the property for so much less than its value. A purchase under such circumstances must be held to be what it appeared to be at the sale, — a purchase subject to the mortgage.”

See, also, Cranson v. Smith, 47 Mich. 189; Wolf v. O'Conner, 83 Mich. 301.

Decree is affirmed, with costs.

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


author: Grant, C. J.

text:
    RICHARDS v. McCORMICK.
    Parent and Child — Gift—Inconsistent Contentions.
    A father who has testified positively in one case that an amount advanced by him to his son was a gift, and not a loan, should not be permitted in another case, involving the rights of the son’s creditors, to prevail in the contrary contention.
    Appeal from Wayne; Daboll, J., presiding.
    Submitted October 20, 1898.
    Decided December 13, 1898.
    Judgment creditor’s bill by Frank E. Richards against James C. McCormick, Hugh McCormick, Jr., and Hugh McCormick, Sr. From a decree dismissing the bill as to Hugh McCormick, Sr., complainant appeals.
    Reversed.
    This is 'a suit in equity by Frank E.. Richards, a judgment creditor, against James C. McCormick and others, to reach property claimed to have been fraudulently transferred. Complainant recovered judgment for $208.70 against the defendants James and Hugh McCormick, Jr., who were engaged in the grocery and meat business. They failed, and transferred the goods to defendant Hugh McCormick, Sr., their father, for the consideration of $1,100. It appears to be conceded that he advanced $500 for the purchase of the stock, and that he paid $600 in cash at the time of the transfer. It is conceded that $1,100 was the fair value of the stock. Complainant’s indebtedness was incurred before the transfer, but was not due until some time afterwards. It is contended by complainant that the $500 was not a loan, but a gift, and that the father is liable as trustee of the same to the sons’ creditors. The bill was taken as confessed as to the defendants James C. McCormick and Hugh McCormick, Jr. The case was heard on pleadings and proofs as to the other defendant, and decree was rendered in his favor.

      Henry B. Graves, for complainant.

      John J. Jackson, for defendant Hugh McCormick, Sr.
   Grant, C. J.

(after stating the facts). Upon the hearing, complainant introduced the testimony of defendant Hugh McCormick, Sr., taken in another case, in December, 1895, in which it is claimed he testified that this $500 was a gift to his son, and not a loan, and rested. The defendant was then sworn in his own behalf, and testified that the $500 was loaned. The question presented is one entirely of fact, viz., whether the court should have found that the defendant gave his son the money. His former testimony cannot be well construed to mean anything else than that he desired to help his son start in business, and made a gift to him of this $500 for that purpose. The stock to this amount was therefore subject to the claims of creditors.

Decree reversed, with costs of both courts, and decree rendered for complainant.

The other Justices concurred.


author: Hooker, J.

text:
    PINKERTON BROS. CO. v. BROMLEY.
    1. Fraudulent Purchase — Evidence—Question for Jury.
    The question of fraud in the purchase of goods should be submitted to the jury, where the evidence tends to show that one employed by a corporation as bookkeeper embezzled funds with which he established credit with the seller for a store managed by a partner, and, after overstocking it, sold the goods for half their value, and absconded.
    2. Same — Notice.
    It was error to refuse to submit to the jury the question whether defendant was a bona fide purchaser of a stock of goods a part of which was fraudulently obtained from plaintiff, a wholesale dealer, where it appeared from the testimony that defendant bought the stock for 50 cents on the dollar, under circumstances that aroused his suspicions, and that, while he waited a short time before closing the deal, he took no steps towards ascertaining whether plaintiff had a claim against the goods, notwithstanding he was aware that plaintiff had supplied nearly the entire stock.
    Error to Wayne; Donovan, J.
    Submitted October 21, 1898.
    Decided December 13, 1898.
    Replevin by the Pinkerton Bros. Company against Joseph H. Bromley. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      John Miner, for appellant.

      William B. Jackson, for appellee.
   Hooker, J.

The plaintiff was engaged in the wholesale grocery business in Ohio, and had dealings with the Cambridge Fuel Company through Bothwell, its bookkeeper. Bothwell made an arrangement with one Axford to go into the retail grocery business as copartners, Both-well to furnish the money and Axford to attend to the business, profits to be divided equally. Bothwell stocked the store heavily, through successive purchases, of goods, mostly from the plaintiff, with whom he succeeded in establishing a credit for the firm by means of considerable payments from time to time. These payments were made by diverting from their proper use drafts bought with the funds of the Cambridge Fuel Company for use in its business. Finally Axford became suspicious, and quit the business, and, prior to the arrival of the plaintiff’s agent at Detroit, Bothwell absconded. Plaintiff’s agent found the goods in the possession of defendant, from whom they were replevied, after futile efforts to adjust the matter and an offer to reimburse him for money paid for the stock. Defendant made the claim to the plaintiff that he had purchased the goods, and had paid 50 cents upon the dollar, as per an alleged inventory which he said was taken. No testimony was offered upon behalf of the defendant, and the learned circuit judge directed a verdict for the defendant. The brief of counsel for the appellee concedes that, ‘ ‘ if the plaintiff had shown any fraud on the part of Bothwell in obtaining the goods, the defendant would have had; under the law, to prove the bona fides of his purchase, ” and proceeds to argue that fraud in the purchase of the goods was not shown.

We are of the opinion that there was evidence from which the jury might have inferred fraud, as the testimony indicated that Bothwell deliberately planned to establish a fictitious reputation for his firm, by applying embezzled funds in part payment for purchases. The large quantity of goods purchased was disproportionate to the business of the concern, and the disposition of the property for a price much below its value, followed by the absconding of Bothwell, are significant facts, and leave little doubt that the scheme was a fraudulent one from its inception.'

Whether the burden of showing' his bona fides was upon the defendant we need not inquire, as the testimony shows that he admitted that he had suspicions regarding the proposed sale of the stock, and waited to see if any one would assert rights against the goods; and, although he knew that the goods were nearly all bought from the plaintiff, and thought it strange, he took no steps to ascertain whether it had a claim upon them, but, after waiting for a time, concluded to take his chances and close the deal. He did not take the witness stand himself, or offer any proof as to the bona fides of his purchase or the payment for the goods. This testimony was sufficient to raise a question for the jury.

“To constitute good faith, there must be an absence, not alone of participation in the fraud or collusion with the vendee, but also of knowledge or even notice the fraud, or of facts and circumstances calculated to put an ordinarily prudent business man on inquiry, so that he would ascertain the truth.” 8 Am. & Eng. Enc. Law, 841, and cases cited.

In this case the defendant admitted, not only that there were facts calculated to make a man suspicious, but that they actually raised his suspicions; yet he took no means to ascertain whether they were well founded, and allowed his suspicions to be allayed by the fact that Bothwell was working for a reputable house.

The case should have gone to the jury upon both questions.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    SMITH v. GEORGE T. SMITH MANUFACTURING CO.
    Corporations — Petition por Accounting! — Intervention by '
    General Creditors,
    A general creditor of a corporation will not be permitted to intervene in a proceeding by a stockholder and creditor under 2 How. Stat. chap. 281, to compel a contribution of capital and an accounting, in the absence of anything tending to show an attempt at a collusive adjustment between the petitioning creditor and the corporation.
    Appeal from Jackson; Peck, J.
    Submitted November 1, 1898.
    Decided December 13, 1898.
    Bill by George T. Smith against the George T. Smith Manufacturing Company, a corporation, and others, stockholders therein, to compel a contribution of capital and an accounting. The George T. Smith Mill Building Company, as a creditor of defendant corporation, petitioned for leave to intervene. From an order dismissing the petition on defendants’ demurrer thereto, petitioner appeals.
    Affirmed.

      John W. Miner (Grove H. Wolcott, of counsel), for petitioner.

      T. E. Barkworth, for defendants.
   Long, J.

The bill of complaint in this cause was filed by George T. Smith, a stockholder, and also claiming to be a creditor, of the George T. Smith Manufacturing Company, a corporation organized under Act No. 232 of the Public Acts of 1885, and the acts amending the same. It is claimed by the bill that the capital stock of such company was $200,000, consisting of 20,000 shares, of the par value of $10 each, and that the articles of association were executed by Dwight S. Smith (who subscribed for 4,500 shares), Henry H. Smith (who subscribed for 3,000 shares), and the complainant (who subscribed for 4,000 shares), on the 17th day of February, 1897; that the complainant turned over to the company certain patents and designs and appliances in payment of his stock subscription; and that Henry H. and Dwight S. Smith were, by their agreement, to convey to the company real estate of the value of $75,000 in settlement for their respective subscriptions, but that such transfer of real estate was never made. The bill also sets forth that, at the date of the filing of the same, the debts of the corporation amounted to $9,826.57, which did not include the sum of about $1,500 remaining due to complainant for salary and expenses. Complainant charges that defendant Hiram H. Smith purchased of the company 1,000 shares of so-called “treasury stock,” at the par value of $10 per share, but that such stock was never paid for, and such defendant is still indebted to the corporation on that account in the sum of $10,000; that defendant Henry H. Smith caused to be entered in the books of the company false and fraudulent entries, amounting to about $10,000, in favor of himself and brother, Dwight S. Smith, deceased, and against tbe corporation; that tbe company has ceased to carry on business, and has sold the aforesaid patents. The bill charges that the report of the company made February 26, 1898, was false, fraudulent, and untrue in fact, and known to be so by Henry H. Smith, one of the directors; and also that Henry H. Smith is attempting to cheat and defraud the company out of its rights and equities as to the aforesaid land, and, by means of said false charges, out of the $10,000 due from Hiram H. Smith for the 1,000 shares of stock assigned to him. The bill asks to have defendants Henry H. Smith and Thomas E. Barkworth account for their official action in the management of the effects and the disposition of the funds of the corporation, and that they be required to account to the corporation and its creditors for all sums of money and the value of all property that they have acquired or transferred or lost or wasted through any violation of their duties as directors and officers, and that a receiver be appointed, and the corporation dissolved.

The George T. Smith Manufacturing Company filed its-answer to such bill, neither admitting nor denying the averments of the bill in regard to the sale of the patents mentioned, the land of the value of $75,000, and whether or not'Hiram H. Smith was president and a stockholder, as charged, but admits that Hiram H. Smith has never paid the sum of $10,000, to the knowledge of the corporation. Defendant company neither denies nor admits that omissions of entries from the books of the company have been made, or that Henry H. Smith made a fraudulent entry in such books, but avers that the company would not recognize any liability on account of such entry. Defendant alleges that the charge that its annual report was false and fraudulent was not known to the company. Defendant denies that it is necessary, in order to protect creditors and stockholders, that a receiver should be appointed, and also that complainant has any right to such relief. Defendant sets forth a release by the complainant of all claims against the other stockholders of the company, and authorizing R. M. Newman to collect and settle claims, and cancel and annul a contract with Smith Bros, regarding the organization of the aforesaid company.

• The defendants BarkwPrth, Henry H. Smith, Hiram H. Smith, and Zoe M. Smith, administratrix of the estate of Dwight S. Smith, also filed their answers to such bill. Defendant Barkworth denied that the report of the company was false or fraudulent, or that he had any knowledge that Hiram H. Smith was a stockholder, and averred that said Henry H. Smith had agreed with him that the indebtedness standing to the credit of Smith Bros. (110,000) should not be considered until all the indebtedness to creditors had been paid.

The answer of Henry H. Smith admits that complainant conveyed certain patents, etc., to the company, but denies that the same were received in full payment of his stock, and insists that the land in question had been conveyed by himself and Dwight S. Smith to the Jackson Vehicle Company at the time articles of association were executed; also denies that there was any agreement by which the land, should be conveyed to the corporation in consideration of the stock issued to him and his brother. He also denies making any fraudulent entries in the books of the concern, and that Hiram H. Smith was a stockholder therein.

Hiram H. Smith, by his answer, denies that he purchased any stock in the company, or that he is indebted to it, and claims that the land mentioned is the property of the Jackson Vehicle Company.

The defendant Zoe M. Smith neither admits nor denies the averments of the bill, and leaves complainant to his proofs.

On the 21st day of April, 1898, the George T. Smith Mill Building Company, of Cleveland, a corporation, by David Morison, its president, filed its petition in this cause, setting forth therein that it was a creditor of the George T. Smith Manufacturing Company, holding two notes of such company, each for the sum of $3,756, dated March 18, 1897, — one payable on or before one year from date, and the other payable on or before two years from date, with interest at 6 per cent. These notes were indorsed by Smith Bros, (composed of Henry H. and Dwight S.), and by George T. Smith. It is asserted in the petition that the petitioning company became aware of the charges of fraud and mismanagement from the bill of complaint in this cause, and charges that the land of the value of $75,000 was contributed by Henry H. and Dwight S. Smith in payment of the stock issued to them, and that Hiram H. Smith was a stockholder of the company, holding 1,000 shares, for which he was indebted. The petition sets forth that the debts of the company amount to about $22,000, and the total personal estate to about $14,000, and that, if such real estate and indebtedness could be recovered, such company would be solvent. Petitioner claims that its rights as a creditor (such notes and interest thereon, so far as due, being wholly unpaid) entitle it to be heard in the case, and asks that it may be made a party complainant, and that it may have the benefit of all allegations in the bill, and that defendants may make further answer to the petition, and that Hiram H. Smith may be decreed to pay to the George T. Smith Manufacturing Company the sum of $10,000 which he owes for stock, and that the said land may be decreed to be the property of such company.

To the petition defendants entered their general demurrer. The petitioner moved to strike such demurrer from the files for irregularity, but such motion was waived. Hiram H. Smith, one of the defendants, died on the 15th of May, 1898, and, on July 9th following, an order was made reviving the cause against his administrators; and, on the same date, a decree was entered sustaining the demurrer and dismissing the petition, from which decree the petitioner appeals.

It is claimed that the statute gives the petitioner the right to intervene. This is the only question involved. Chapter 281, 2 How. Stat., in addition to the general jurisdiction of courts of chancery over matters concerning corporations, gives authority to such courts to entertain bills and petitions in behalf of the State under the direction of the attorney general; also bills in behalf of any creditor of a corporation, or any director, trustee, or officer having general supervision of the affairs of a corporation, or any stockholder or judgment creditor. Section 8150, 2 How. Stat., being a part of the same chapter, prescribes the relief to be given upon a proper application by any person entitled to file a bill or petition. It is therefore contended by counsel for the George T. Smith Mill Building Company, which seeks to intervene, that if, under this statute, any creditor, whether a judgment creditor or not, may file a bill or petition to compel the officers of a corporation to account, and for other purposes mentioned in the statute, then such creditor is entitled to intervene in a proceeding such as this.

In Riverside Iron Works v. Wayne Circuit Judge, 100 Mich. 124, the petitioner sought to intervene, and answer and file a cross-bill resisting a petition filed under this same chapter. The petition was denied in this court. It was said that petitioner could gain no advantage over the other creditors, and that any equities sought to be-reached would not be disturbed by the sequestration; that the petitioner was entitled to such relief as the parties filing the bill asked for. In the present case, if the petitioner is allowed to intervene, then any general creditor might be so permitted. "Whatever may result from the original proceedings will belong to the creditors. The petitioner has not shown that it has any other or greater rights than any other creditor, or any specific right in the thing which forms the subject of the controversy. General creditors are not permitted to intervene in such cases. Horn v. Volcano Water Co., 13 Cal. 62 (73 Am. Dec. 569); Welborn v. Eskey, 25 Neb. 193; Lewis v. Harwood, 28 Minn. 428. See, also, Heap v. Heap Manfg. Co., 97 Mich. 147. We think the statute cannot have the construction contended for. Such construction would permit all creditors to intervene, and might cause endless delays and confusion in the settlement of the questions in litigation. We do not say that a case might not arise in which a general creditor would be permitted to intervene to prevent a collusive adjustment between the petitioning creditor ' and the corporation, but no. such showing is made here.

The order below must be affirmed.

The other Justices concurred.


text:
    WARD v. OBENAUER.

    Foreclosure — Deficiency—Conolusiveness of Decree.
    One who, having appeared and answered in foreclosure proceedings, is adjudged personally liable for a deficiency, is concluded by the decree from denying such liability upon a petition for execution for the deficiency.
    Appeal from Wayne; Donovan, J.
    Submitted November 15, 1898.
    Decided December 13, 1898.
    Petition by John Ward against Frederick P. Obenauer, Mary B. Brownell, and others, for execution for a deficiency on foreclosure of a land contract. From an order granting the prayer of the petition,. defendant Mary B. Brownell appeals.
    Affirmed.

      John Ward, in pro. per.

      Bayard T. Brown, for appellant.

       Rehearing denied September 37, 1899.

   Hooker, J.

On May 14, 1891, Charles R. Brownell and Mary B. Brownell, his wife, made a land contract in writing with Obenauer, whereby they agreed to sell premises therein described, upon terms therein stated. On the 1st of the following June, the Brownells assigned their title to the land contract to Ward. This writing contained an undertaking that there was $362.50 unpaid upon the contract, and that, if not paid at maturity, they would be holden for and pay the same. Ward' foreclosed the contract in chancery. The Brownells were parties, and Mrs. Brownell answered, disclaiming any interest in the lot or contract, and denying her personal liability.

The decree shows that the cause was heard upon testimony taken in open court, and it contains an adjudication that Mary B. Brownell'was personally liable for a possible deficiency. The deficiency being reported by the commissioner, Ward filed a petition for execution. Mary B. Brownell answered, setting up the same defense as that contained in her former answer, and appeals from an order granting the prayer of the petition. We are of the opinion that the question was adjudicated on the hearing of the foreclosure case, and that such adjudication is conclusive upon her, under the authority of Jehle v. Brooks, 112 Mich. 131.

The order of the learned circuit j udge is affirmed, with costs.

The other Justices concurred.


text:
    MARX v. WAYNE CIRCUIT JUDGE.
    1. Garnishment — Claimant oe Fund — Interpleader—Notice.
    An order in garnishment proceedings interpleading a copartner of the principal defendant as claimant of funds in the hands of the garnishee is not void, if irregular, because made without notice to the defendant.
    2. Same — Disclosure and Examination.
    Under 2 How. Stat. § 8085, providing that, if any person shall claim property in a garnishee’s hands, the court may permit or cause him to appear and maintain his right, plaintiff is entitled to have an issue framed with one whose claim appears for the first time upon examination of the garnishee subsequent to his disclosure.
    3. Same — Payment into Court.
    Payment into court by a garnishee of a fund claimed by a third person is not a prerequisite to plaintiff’s light to have the ‘claimant interpleaded and an issue framed under 2 How. Stat. § 8085.

      Mandamus by Adolph Marx and Herman Marx to compel William E. Grove, acting circuit judge of Wayne county, to vacate an order framing an issue in garnishment proceedings.
    Submitted November 29, 1898.
    Writ denied December 13, 1898.

      Sloman & Groesbeck, for relators.
    . Brennan, Donnelly & Van De Mark (Selling & Hatch, of counsel), for respondent.
   Hooker, J.

Relators ask a mandamus to compel the respondent, a circuit judge, to vacate an order denying a motion to set aside an order framing an issue in a garnishee proceeding.

Section 8085, 2 How. Stat., reads as follows:

If any person shall claim any property, as aforesaid, in the hands of any garnishee, by assignment from the principal defendant or otherwise, the court may permit or cause him to appear and maintain his right in such mode as the court shall direct. The testimony of the principal defendant, or of any competent witness, may be taken in such manner as the court shall direct, and attached to the disclosure, and the court may award such costs between such complainant, the plaintiff, and the garnishee as justice and equity may require.”

The garnishee’s disclosure denied that it had a fund belonging to Herman Marx, but' its subsequent examination under the statute disclosed the fact that it had a fund deposited by him in the name of himself and brother as co-partners. The court ordered them to be interpleaded on application of plaintiff’s counsel. An answer was after-wards filed, and an issue was framed three days later. We do not discover that the defendant’s counsel were present, or-had notice of the application; but, on the other hand, if this was irregular, it was not void, and, in the absence of some meritorious reason, we think the court should not be compelled to vacate the order.

The other grounds of the motion involve a construction of the statute. The relators’ contentions are:

First. That, inasmuch as the disclosure proper did not show that the bank had a fund belonging to the garnishee defendant, or that a third party claimed a fund in its possession,, the plaintiff was not entitled to an issue.
Second. That payment of the fund into court was' a requisite to the right to an issue.

We are of the opinion that it is more reasonable to hold that the right of the plaintiff to try the title to this fund under the method pointed out by the statute should extend to any case where the disclosure and examination show a disputed claim to a fund in the garnishee’s possession, which the plaintiff claims to be the property of the principal defendant, or owing to him; and that there is, no reason for limiting the application of the statute to cases where the fact appears in the disclosure, so called. The examination is in fact a part of the garnishee’s disclosure. And we think, also, that this right cannot be cut off by the failure of the garnishee to pay the money into court.

The writ is denied.

The other Justices concurred.


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    PEOPLE, for use of EMACK, v. THOMPSON.
    Public Buildings — Contractor’s Bond — Material Men.
    One who furnished slate blackboards to a contractor engaged in the construction of a school building is a material man, and entitled as such to maintain an action on the contractor’s bond, where the order was given him without reference to plans or specifications, and the blackboards required were of the dimensions ordinarily kept in stock.
    Error to Bay; Maxwell, J.
    Submitted November 16, 1898.
    Decided December 13, 1898.

      Assumpsit by the people of the State of Michigan, for the use and benefit of John D. Emack, against John W. Thompson as principal, and Gustave Hiñe and Darwin O. Smalley as sureties, upon a statutory bond. Erom a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Affirmed.

      Simonson, G-illett & Courtright (J. L. Stoddard, of counsel), for appellants. '

      James JS. Duffy, for appellee.
   Moore, J.

The circuit judge directed a verdict for plaintiff in the sum of $340.85. The defendants bring the case here by writ of error.

In April, 1895, defendant Thompson contracted to erect a school building in Bay City. All of the defendants joined in making a bond containing the following conditions:

Whereas, the said John W. Thompson has entered into a contract with the Union school district of Bay City for the erection of a school building in the 11th ward of Bay City, which said contract is of even date herewith: Therefore, the condition of this obligation is such that, if the said Thompson shall pay, as the same becomes due and payable, all indebtedness which may accrue to any person, firm, or corporation on account of any labor performed or materials furnished in the erection of said building, then this obligation to be void; otherwise of force.”

Mr. Thompson let a portion of the contract to Heumann & Trump. They let a portion of their contract to Waelde & Cary. The last-named persons had some talk with the agent of Mr. Emack about the purchase of slate for roofing and the slate which was to be used for blackboards in the school building. In answer to an inquiry,' Mr. Emack, on September 6, 1895, quoted prices for slate roofing and slate blackboards, giving the price for boards three feet high at 19 cents per square foot. In October an order by mail was sent to him for different lengths of blackboard at the price given in the letter of September 6th. The blackboards furnished .measured 2,049.2 square feet. The slate, in the lengths ordered, was shipped soon after. Mr. Thompson had his man spread the mortar on the walls. Waelde & Cary set the slate in the mortar, and a molding was then put in on top of them to hold them in place.

It is the claim of defendants that Mr. Emack was not a material man, but .was a subcontractor, and for that reason is not entitled to maintain this action; citing Avery v. Board of Sup’rs of Ionia Co., 71 Mich. 538. We do. not think this case sustains the claim of counsel. Mr. Emack was requested to quote prices for roof slating and for slate blackboards. He quoted prices at so much a square foot for the blackboards. An order was given him, in which there was no reference to plans or specifications, but .h© was directed to send certain lengths of three-foot slate blackboard. This order was filled. The blackboards furnished did not differ from the three-foot slate blackboards ordinarily kept in stock and ordinarily sold. Suppose Mr. Emack had been requested to quote prices on 3x16 joists, and had named a price of $25 a thousand feet, and an order had been given him to furnish a certain number of joists of one length, and a certain number of another, and this order was filled, would it be claimed he would not be a material man, but would be a subcontractor ? We think not. The case is controlled by Board of Education of Detroit v. Grant, 107 Mich. 151; People, for use of Hirth, v. Powers, 108 Mich. 339; People, for use of Smith, v. Collins, 112 Mich. 605

It is claimed the slate was furnished by plaintiff in the usual course of his business, without any knowledge it was to be used in this particular building, and therefore, under Van Cleve Glass Co. v. Erratt, 110 Mich. 689 (64 Am. St. Rep. 383), plaintiff cannot recover. The evidence discloses very clearly that Mr. Emack understood this slate wás going into the building where it was put.

The court very properly directed a verdict.

Judgment is affirmed.

The other Justices concurred.


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    PEOPLE v. HILLIARD.
    1. Appeal — Rulings not Excepted to.
    Error assigned upon the exclusion of evidence cannot be considered when no exception was taken to the ruling excluding it.
    2. Trial — Evidence—Harmless Error.
    Where, on a prosecution under the local option law, a detective employed by county officials to search out violators of the law had stated the substance of. the arrangement between him and the officers, and that he was unable to recall what the sheriff had said to him, the exclusion of further questioning as to what the sheriff had said, upon the ground that the communication was privileged, was harmless.
    3. Intoxicating Liquors — Local Option Law — Violations—Instructions.
    On a prosecution of a druggist’s clerk, under the local option law, for selling beer to be used as a beverage, a statement in the charge that the law prohibits the sale of liquor by druggists to be used as a beverage or to be drank on the premises is not erroneous as authorizing a conviction for the separate offense of selling liquor to be drank on the premises, where the statement simply related to some of the provisions of the law, and the jury were otherwise clearly told what offense was charged and what must be proved to justify a conviction.
    4. Trial — Requests to Charge.
    Respondent cannot complain of a failure to give requested instructions, where all that was essential in them was incorporated in the general charge.
    Exceptions before judgment from Van Burén; Buck, J.
    Submitted November 18, 1898.
    Decided December 13, 1898.
    Harvey Hilliard was convicted of violating the local option law.
    Conviction affirmed.

      T. J. Cavanaugh, for appellant.

      James E. Chandler, Prosecuting Attorney, for the people.
   Moore, J.

The respondent, who was a clerk for* a druggist at Hartford, was convicted of having sold to one Benham two bottles of beer to be used as a beverage. From that conviction he has appealed to this court.

• Hartford is in Van Burén county, where the local option law is in force. Nearly all of the téstimony on the part of the people was furnished by two detectives who were employed by the officers of the county to look up violators of the law. A good many of 'the assignments of error relate to the admission of testimony. The detectives testified to the purchase of the beer at Hartford between 4 and 5 o’clock in the afternoon. They were subjected to a long cross-examination. Among other questions, they were asked if they had beer at Lawrence about noon, while they were on their way to Hartford. This was objected to, and the objection sustained. This is said to be error. No exception was taken to the ruling, and we do not deem it necessary to discuss* the question.

These men testified they were to receive five dollars a day for their work, and that the arrangement was made with the officers of the county, including the sheriff. The witness was asked what the sheriff had to say to him. Objection was made upon the ground that it was immaterial and incompetent. The court sustained the objection, saying it might be immaterial if it was not privileged, and that it came under the head of privileged communications. The people now. say what occurred between the witness and the sheriff was privileged upon the ground of public policy; citing People v. Davis, 52 Mich. 573; 1 Greenl. Ev. § 250; Whart. Or. Ev. § 513. Because of what is disclosed by the record, we do not deem it necessary to say whether the conversation was privileged or not. The witness had already stated the substance of the arrangement between him and the officers. He also said he could not recollect what the sheriff said to him. A good deal of latitude had been allowed in the cross-examination, and it is very evident from the answer of the witness that he had already answered the question put to him as fully as he could. The ruling, therefore, was without harm.

Other errors are assigned in relation to the admission of testimony and to remarks made by the prosecuting attorney in the nature of badinage. We do not think either of them is well taken.

„ In the course of his charge the trial judge used this language:

“The law allows druggists to sell liquor, as you have already been instructed, for medicinal, mechanical, scientific, and sacramental purposes, and for that alone. The law absolutely prohibits the sale of liquor by druggists to be used as a beverage or to be drank on the premises. There are other restrictions and prohibitions which it is not necessary to name, as they are not involved in this case. So long as a druggist complies with the law in these regards, he is justified in making sales. ”

It is now said, as the respondent was charged with selling beer to be used as a beverage, that the jury were given to understand by this charge they might convict for the sale of beer to be drank on the premises; and that as the sale of liquor to be drank on the premises is one offense, and the sale of liquor to be used as a beverage is another, the court committed error. This contention is not sustained by the charge. The court was stating to the jury some of the provisions of the law in relation to sales made by pharmacists. He was careful to state what the charge against the respondent was, and told the jury repeatedly that “the vital question is whether the respondent sold a quantity of beer at the time -and place named in the information to Charles T. Benharn, to be used as a beverage.” The jury were given to understand very clearly with what offense respondent was charged and what must be proven to justify a conviction.

Complaint is made because some of the respondent’s requests were not given. Some of these requests contained propositions not warranted by the record, and for that reason were properly refused. The court gave some of respondent’s requests, and also gave a long general charge, which did not omit any essential thing in favor of respondent. Where this is done, it is not error to refuse to give the requests prepared by counsel. People v. Weaver, 108 Mich. 649.

The other assignments of error have had attention, but will not be discussed.

The conviction is affirmed.

The other Justices concurred.


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    PEOPLE, for use of WINKLE TERRA-COTTA CO., v. COTTERAL.
    Public Buildings — Contractor’s Bond — Subcontractors.
    One who furnishes to a contractor, for an agreed sum, all the terra-cotta work used in the construction of a school building, preparing special molds for the same from the plans and specifications attached to and made a part of his contract, is a subcontractor, and not a material man, though he has nothing to do with setting the work in the building; and he cannot, therefore, maintain an action upon the contractor’s bond, given under 3 How. Stat. § 8411a, for the protection of material men and laborers.
    Error to Wayne; Frazer, J.
    Submitted November 18 1898.
    Decided December 13, 1898.

      Assumpsit by the people of the State of Michigan, for the use and benefit of the Winkle Terra-Cotta Company, against Joseph W. Cotteral, Sr., and Joseph W. Cotteral, Jr., copartners, as principals, and Charles E. Bresler and John E. Calnon as sureties, upon a statutory bond. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Warner, Codd & Warner, for appellant.

      Elliott G. Stevenson, for appellee Bresler.
   Moore, J.

In March, 1895, Cotteral & Co. contracted to build the Central High School Building in Detroit. The usual bond given in cases of contracts for the construction of municipal buildings was given by Cotteral & Co. It is claimed the other defendants are sureties upon the bond. The plaintiff furnished the terra-cotta work in the building under a contract made with Cotteral & Co. The contractors failed before the building was completed. The Terra-Cotta Company was not paid for the work which had been furnished by it at the time of the failure, and it brought this suit to- recover upon the bond. The defenses were: First, that plaintiff was a subcontractor, and not a material man; second, that plaintiff had granted an" extension of time of payment, which released the sureties. Charles E. Bresler claimed he never signed the bond. The circuit judge directed a verdict in favor of the defendants, upon the grounds: First, that plaintiff was a subcontractor; and, second, that an extension of the time of payment had been granted, which released the sureties.

Cotteral & Co. took the contract for the entire construction. The plans and specifications required the use of a good deal of terra-cotta work. Much of this was of an ornamental character. The arrangement made between the plaintiff company and the contractors is shown by the following correspondence:

“Cincinnati, 0., June 4, 1895. “Winkle Terra-Cotta Co.,
“St. Louis, Mo.
Gentlemen: We would like to receive from you your best quotations on the ornamental terra cotta for the Detroit Central High School, furnished and set complete in accordance with the plans and specifications on file in our offices, room 84, Home Bank Building, Detroit, Mich., and Blymyer Building, Cincinnati. The plans and specifications for this material have not been changed since the time of the awarding of the work, but the architects will allow you to furnish your own designs for the construction, provided they maintain the same exterior faces, and the work will be guaranteed strong and secure. We would also like your price on the above material f. o. b. cars Detroit, so that we may figure our own setting, should we think it to our interest.
“ Respectfully,
“ J. W. Cotteral & Co.”
“St. Louis, Mo., June 6, 1895. • “Messrs. J. W. Cotteral & Co.,
“Cincinnati, Ohio.
Gentlemen: We have at hand your favor of the 4th inst., regarding the job at Detroit, Mich. We have notified our representatives at Detroit to see your firm in person at Detroit. Messrs. Holmes, Strachan - & Co. are at present representing us. We did not make price set in building, as we found, on a building of this kind, and the way the work runs, the masons could run the terra-cotta setting much cheaper than we could do it. Messrs. Holmes & Co. will see you at Detroit. We would like very much to do this work for you. We will give you the best of material, and get the work out in the very best shape; and our head draftsman understands terra-cotta construction thoroughly, and the men in the different departments are experienced hands.
‘ ‘ Very respectfully,
“The Winkle Terra-Cotta Company,
“Jno. G-. Hewitt.”
“St. Louis, Mo., Aug. 9, 1895. “Messrs. J. W. Cotteral & Co.,
‘ ‘ Cincinnati, Ohio.
Gentlemen: Yours, with revised drawing of cornice as made by the architects for the Detroit High School Bldg., at hand. In reply, would say, if the work is made according to the plan just received, we will make and deliver the terra-cotta work on cars at Detroit, for the High School Bldg., for the sum of seventy-three hundred dollars ($7,300.00). We have gone over the work carefully. The changes made by architects help us little in making any saving in the work. We have cut the price as close as possible, and hope to receive your order. The bids we made as per our drawings will stand, and, if architects will accept the changes, we will do the work at the prices named.
“ Very truly,
“The Winkle Terra-Cotta Co., “Jno. G. Hewitt, Sec.”
“Cincinnati, 0., Aug. 14, 1895. “Winkle Terra-Cotta Co.,
“St. Louis, Mo.
“Gentlemen: We inclose you herewith our order for terra cotta for the Detroit High School Building, with the wish that you proceed as rapidly as possible with this ‘work, and prepare details for the more important features that have not already been argued, so that same can be submitted to the architects for their approval. We have a letter from Messrs. Malcomson & Higginbotham, stating they would like to have the detail of the belt work sent to them, so that they can mark the exact height of same, for the purpose of having them work correctly with the brick courses. The belts will have to be reduced some in height from that shown on the scale drawings.
Bespectfully,
“J. W. COTTERAL & Co.”
“Cincinnati, 0., Aug. 15, 1895. “The Winkle Terra-Cotta Co.,
‘ ‘ Chicago, 111.
Gentlemen: Agreeable to the conditions named herein, please enter our order for all of the terra cotta in connection with the exterior walls of the Detroit Central High School Building. Workmanship and material is to be strictly first-class, and subject to the approval and acceptance of the properly authorized authorities of the city of Detroit and ourselves. Workmanship and material is to be in accordance with the plans and specifications, and the general conditions thereto. Copy of said specifications are attached herewith. You are to make all of the details necessary for the correct execution of this work, and same are to be submitted to the architects of the building, and must receive their approval before you proceed with the work. The section of the gutter and cornices which form the trough of the gutter is to be made in one piece. Every section of terra cotta must be properly marked with number or letter cast on the section, and an erection diagram must be furnished us for all of the material, in which the location of each piece is to be shown by the numbering or lettering above referred to. This material is to be promptly manufactured, and must be shipped in the order required for the construction of the building; and the entire order must bé shipped not later than October 15, 1895. For the furnishing of this material under the conditions named herein, delivered f. o. b. cars Detroit, Michigan, in good order, we are to pay you the sum of seven thousand three hundred dollars^?, 300.00). Should you fail to furnish this material as specified herein, it shall be optional with us to purchase same in the open market, and charge any excess of cost in so doing to you. Your acceptance of this order will conclude this agreement between us.
“ Respectfully,
“ J. W. Cotteeal & Co.”
“St. Louis, Mo., *Aug. 16, 1895. “Messrs. J. W. Cotteeal & Co.,
“Cincinnati, Ohio.
Gentlemen: We have your favor of the 15th, with ■ order for the terra-cotta work for the Detroit High School Building, as per plans prepared by Messrs. Malcomson & Higginbotham, architects, price $7,300.00. Gutter must be in one piece, and made as per last tracing received. Your order reads as if we had the drawings, and could go to work at once on the job. Such is not the case, however, and we have wired you to please forward plans from Detroit. Hence it will take a few days beyond October 15th to complete the order. We will put job in hand at once, when plans received. Please send us sample color, if you have any, showing what shade is wanted, and oblige. Thanking you for the order,
‘‘Yours truly,
“The Winkle Teeea-Cotta Co., “Jno. G. Hewitt, Secy.”

The plaintiff company is located at St. Louis, Mo. Terra cotta is made of clay. It is shaped and formed by the use of molds. One of the members of the firm testified that special molds had to be prepared for all the work, while another member of the firm testified that one-fourth of the work could be shaped in the molds on hand, while the balance of the work must be shaped in molds especially prepared in order to comply with the designs of the architect. It is the claim of the plaintiff that as it simply manufactured the material, and had nothing to do with placing it in the building, it was a material man. It is conceded on its part that, if its contract required the material to be put into the structure, it would be a subcontractor, but it is claimed that, as it was not required to do this, it was a material man.

It has been repeatedly held that the bond required by section 8111a, 3 How. Stat., is for the protection of laborers and material men, and is not for the benefit of subcontractors. Many cases arise where it is difficult to decide whether one is a material man or a subcontractor. It is very clear that Cotteral & Co. could not themselves furnish the terrá cotta for this building, nor could the plaintiff out of its stock of material. Without the plans and specifications, so far as they related to the terra-cotta 'work, which must control between the school board and the contractors, it would not be possible for any manufacturer to furnish material which would comply with the contract made by the constructors of the building. The plans and specifications of the architect were to be followed in the manufacture of the terra cotta. The plaintiff was to furnish all of the terra cotta that was to go in the entire building under the original contract. The plans and specifications were made a part of the contract, and the plaintiff was as much bound by them as was the principal contractor. If plaintiff’s contention is true, it is to be protected as a material man, because, not being a resident of Detroit, it could not run the terra-cotta setting as cheaply as could a local contractor, and for that reason did not include the setting in its contract, while a local contractor, who included .the terra-cotta setting, which would form but a small percentage of the cost, would not be protected, because he was a subcontractor. We think this distinction is too subtle. Almost the precise question was presented and settled in the case of Avery v. Board of Sup’rs of Ionia Co., 11 Mich. 538. I cannot she how the cases can be distinguished. Cotteral & Co. took the contract to construct the entire building; the terra-cotta work to be done according to certain plans and specifications. The plans and designs called for original forms and ornamentations. The plaintiff made a contract under the contractor to create or make all of this special work required in the building, and was to be paid, upon the cqmpletion of its contract, a lump sum of money. It is difficult' to reach any other conclusion than that plaintiff was a subcontractor.

It will not be necessary to discuss any of the other questions;

Judgment is affirmed.

The other Justices concurred