author: Grant, J.

text:
    Gilbert A. Watkins v. Nelson Green.

      Adverse possession — Right of entry — Tenants in common — Life estate — Payment of taxes — Estoppel.
    1. One who purchases an undivided interest in lands, and enters as a stranger to the rights of his cotenants, is not estopped from setting up as against them an adverse title that originated 'before his purchase; citing Blackwood v. Van Vleit, 30 Mich. 118; Campan v. Dubois, 39 Id. 274; Sands v. Davis, 40 Id. 14.
    2. Where the owner of a life estate and of an undivided interest in the fee of land permits an adverse claimant to remain in undisturbed possession until such possession ripens into a valid title, neither he nor his grantees can separate his interests in the land, under the plea that, as to some of them, he had not the right of entry.
    3. There can be no adverse possession against one whose right of entry is not complete; citing Cook v. Knowles, 38 Mich. 316; Marble v. Price, 54 Id. 466.
    4. Where, by reason of the failure of a life tenant to pay valid taxes assessed against the land, it is sold under valid proceedings, title passes to the purchaser, and the only remedy of the remainder-man is against the owner of the life estate.
    5. It is the duty of the holder of a life estate to pay all taxes that may be assessed upon the land subsequent to the creation of the estate, though before' he became the owner thereof; and, neglecting this duty, he cannot assert an adverse claim founded upon tax titles issued by reason of such default.
    Error to Wayne. (Hosmer, J.)
    Argued January 19, 1894.
    Decided September 25, 1894.
    Covenant. Plaintiff brings error.
    Reversed.
    The facts are stated in the opinion.

      George W. Radford (Edward A. Barnes, of counsel), for appellant.

      Jay Fuller, for defendant.
   Grant, J.

The defendant executed to plaintiff a warranty deed of certain lands. This actioh is brought to recover for alleged breaches of the covenants of warranty.

The title to the property was originally In one Toussaint I/Esperance, who died testate in 1842, leaving a widow and six children. He devised to his widow one-third of the land in fee, and a life estate in the remainder. Upon the termination of the life estate the two-thirds were devised in equal shares to his six children.

Prior to 1853 the land had been unoccupied, except that the timber had been removed. In October, 1850, the entire land was sold for the taxes of 1848, and was again sold in October, 1851,, for the taxes of 1849. October 21, 1851, the Auditor General issued his deed to Edward Meyers upon the first sale, and on November 16, 1852, a second deed upon the sale of 1851. The first sale was to one Williams, who assigned to Meyers. The second sale was direct to Meyers. Two of the children died, leaving no issue; one is dead, leaving one child; and three are still living. The widow died May 2, 1887.

July 19, 1851, Meyers obtained by quitclaim deed the interest of Edward, one of the six children, who was the owner of an undivided one-ninth. May 23, 1854, the widow and one of the children quitclaimed their interests to one Nathan H. White, who, on July 1 of the same year, conveyed the land by quitclaim deed to one Daniel Ball. In 1856 Ball reconveyed to White, who deeded to one Boltwood in 1857. June 4, 1858, the interests of two of the other children passed by guardian’s deed to one Dow, "who in turn conveyed these interests to Boltwood. October 3, 1853, the entire land was sold for the taxes of 1851 and 1852. Two deeds were issued upon these sales to one Stevens, who on July 2, 1855, conveyed the interest acquired by these deeds to Ball. The tax titles passed to Boltwood under the deeds from Ball to White and from White to Boltwood already referred to. May 17, 1887, Boltwood conveyed to James B. Judson. In 1886 Judson purchased the interest of the two remaining heirs of Toussaint L’Esperance.

There is no competent evidence that Meyers ever went into possession of the land, or was intrusted with its care and supervision, either by L’Esperance or his widow. The only testimony upon this subject is given by one of the children of L’Esperance, who testified to his understanding from conversations he had with his mother. Such testimony was hearsay and incompetent.

July 4, 1853, Meyers conveyed the entire land to one John Hanley by warranty deed. The land was then in the state of nature, except that the timber had been removed, and was covered with water and willows. Hanley immediately went into possession with his family, drained and fenced it, and the 'following year built a house, barn, and other buildings upon it, and continued in such possession until he conveyed by warranty deed to defendant, Green, October 13, 1879; meanwhile paying the taxes and cultivating and improving the land. Green executed a warranty deed to plaintiff, Watkins, January 8, 1881. Green occupied the land, through tenants, until the conveyance to plaintiff.

Mr. Judson commenced an action of ejectment against the plaintiff, who notified defendant of Judson’s claim, and demanded that he defend the suit. This defendant refused, claiming that he had a good title by adverse possession. Plaintiff then purchased the interests held by Judson, and brought this suit.

The court below directed a verdict for the defendant, holding:

'' 1. That John Hanley went into possession of the property in dispute under a claim of title, i. e., the Meyers tax deeds and his deed from Meyers, and that under this claim he held an open, notorious, hostile, distinct, and adverse possession for over 27 years,
''2. That, of the 'patent title/ defendant obtained one-ninth by his deed from Meyers.
"3. That the statute of limitations had run in favor of Hanley and his successors, against the widow, as to the three-ninths willed to the widow absolutely.
''4. That there was a merger of the life estate and the three-ninths of the estate obtained from Enos, Philip, and Charles, and passing to Boltwood on June 12, 1860, and that the statute of limitations had run against the three-ninths, in favor of Hanley and his successors.
"5. That the Sears Stevens tax titles were paramount titles, and, when purchased by Ball, extinguished the two-ninths of the 'patent title’ still held by Elizabeth Crouch and Josephine Page, and the right of entry accrued at once to Boltwood, and that the statute of limitations had run against the entire 'patent title/ in favor of Hanley and his successors.
" 6. That the tax titles purchased by Meyers were paramount to the title of the children and- that of the widow, and that Hanley’s possession under the paramount title extinguished the title of the widow and children to the property in question.” '

Meyers, at the time of the purchase of his one-ninth interest from Edward L’Esperance, was not in possession, nor did he take possession either under that deed or his tax deeds. He occupied no relation of trust or confidence towards the widow and heirs. He was therefore under no obligation to pay their taxes, or to buy up outstanding interests or titles for their benefit. Hanley went into possession under his warranty deed from Meyers, claiming the entire title, and under a deed which purported to convey the entire and absolute fee. It cannot be said that he accepted this deed charged with any duty to protect the life estate, or the undivided interests of any of the tenants in common. Hanley’s possession at once became open, notorious, hostile, and exclusive to all claiming any interest in the land. That possession continued in Hanley and his grantees for nearly 40 years, and more than 20 years after the minor children became of age. It is established in this State that one who purchases an undivided interest in lands, and enters as a stranger to the rights of his cotenants, is not estopped from setting up against them an adverse title that originated before his purchase. Blachwood v. Van Vleit, 30 Mich. 118; Campau v. Dubois, 39 Id. 274; Sands v. Davis, 40 Id. 14.

Such entry operated as an ouster of all those having an interest in the land and the right of entry. The widow was then entitled to the possession of one-third by virtue of her one-third ownership, and to the possession and enjoyment of the other two-thirds by virtue of her life estate. Clearly, therefore, her rights and those of her grantee of these two interests were lost by adverse possession, and the title vested in the defendant.

When Ball purchased the interest of the widow and one of the children, and the tax titles for the taxes of 1851 and 1852, which were then outstanding, all these titles became merged in him. He was then entitled to possession, as against Hanley. The right of entry became complete, and the statute of limitations began to run. By the deed from Ball to White, dated in 1856, and from White to Boltwood, in 1857, Boltwood succeeded to the same rights and interests, and was entitled to possession. Boltwood, by his purchase of the interests of Enos and Philip in 1860, became possessed of the entire title, including the life estate, except the one-ninth purchased by Meyers and the two-ninths outstanding in Josephine and Elizabeth. He took no steps to enforce his rights, and the defendant, by the adverse possession of himself and his grantors, obtained title to all the interests owned by Boltwood. Boltwood, being the owner of the life estate, was obligated to pay the taxes, and protect the interests of the remainder-men. If he chose to permit Hanley and his grantees to remain in adverse and undisturbed possession till such possession ripened into a valid title, neither he nor his grantees can now separate his interests, under the plea that, as to some of the interests, he had not the right of entry.

Josephine and Elizabeth, or their grantees, acquired no right of entry until the death of their mother, in May, 1887, when the life estate terminated. How. Stat. § 8700. As to these* interests, therefore, there has been no adverse holding, so as to convey title. Cook v. Knowles, 38 Mich. 316; Marble v. Price, 54 Id. 466.

If, therefore,, the tax deeds to Meyers are void, there was a breach of the defendant’s covenants of warranty, for which the plaintiff is entitled to damages. Of course, if the tax deeds obtained by Meyers are valid, they cut off the entire title of the widow and heirs. ^Where the owner of the life estate neglects to pay the taxes assessed upon the land, and it is sold for valid taxes and under valid proceedings, title passes to the grantee,' and the only-remedy of the remainder-man is against the life owner.

Judgment must be reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Accounting of Harvey Joslin, Assignee of Henry M. Goebel, Insolvent.
    [See 81 Mich. 413; 90 Id. 71.]

      Assignment for benefit of creditors — Bight of wife of assignor to purchase at sale — Duties and liabilities of assignee — Compensation.
    1. The wife of an insolvent debtor’ has the same right as any one else to purchase the assigned property at assignee’s sale; and the mere fact that a third party makes such purchase in her interest is no evidence of fraud on the part of the assignee.
    2. In the absence of evidence to show an actual appropriation of goods, or of money received upon sales, it would certainly be a harsh rule to hold an assignee of an insolvent debtor liable for an assigned stock of goods at its appraised value.
    3. The fact that an assignee has been loose in some of his methods, and negligent in not preserving the original inventory of the assigned property, which was taken on loose sheets of paper, and certain other books and documents, is not a sufficient reason for charging him with the loss of all compensation for his services.
    4. The assignee of the stock in trade of an insolvent debtor continued to carry on the business at retail, and to that end employed the assignor at a weekly salary, and placed him in charge of the main store. And it is held that the wisdom of such employment depends entirely upon the character of the assignor; that it may have been for the benefit of the creditors, he being more familiar than any one else with the business, the character of the goods, and the responsibility of his debtors.

      Appeal from Kent. (Grove, J.)
    Argued April 28, 1894.
    Decided September 25, 1894.
    Appeal by creditors from tbe allowance of tbe personal account of Harvey Joslin, assignee of Henry M. Goebel, insolvent.
    Decree modified and affirmed.
    The facts are stated in the opinion.

      Taggart, Knappen & Denison, Fletcher & Wanty, and Bundy & Travis, for appellants.

      Harvey Joslin and Butterfield & Keeney, for the assignee.
   Grant, J.

For some 17 years prior to August, 1888, Henry M. Goebel had been engaged in the business of merchandising in wall paper, paints, oils, and work connected therewith. August 31 of that year he made a common-law assignment to Mr. Joslin for the benefit of his creditors. It is not necessary to relate the circumstances which caused the assignment. He had two stores in Grand Eapids, one at Battle Creek, and was also interested in another at Kalamazoo. Others were interested with him in the Kalamazoo store, which was also assigned to Mr. Joslin, but does not enter into this litigation. An inventory was taken, bond given within the statutory 10 days, and Mr. Joslin took possession, and entered upon his duties. Mr. Goebel’s liabilities were $48,151.49. His assets, including stock at cost price and accounts receivable at their face, were $56,961.03. The appraised value was $43,345.23. Deduct Kalamazoo stock, $8,998.81, and the appraised value of stocks here involved is $34,346.42. Shortly before the assignment, Goebel deeded a house and jot in Grand Eapids to his wife. The creditors, claiming that this transfer was fraudulent, obtained permission from the court to file a bill in chancery, in the name of the assignee, to set aside the deed. The amended bill was filed November 16, 1888. The date of the filing of the original bill does not appear. The courts did not find the transfer fraudulent in fact, but held that Mr. Goebel had an interest in the property of the value of $4,020.86. Joslin v. Goebel, 90 Mich. 71. Mr. Joslin continued to carry on the business at( retail, but whether by direct authority of the court does not appear.

November 30, 1888, he rendered an account to the chancery court of his doings as assignee to November 24, which report covers 38 printed pages. From this it appears that his cash sales amounted to $4,719.27, and his collections of old accounts to $2,694.88. It was apparent that this method of disposing of the property was unprofitable. The creditors, who were represented by several attorneys at Grand Rapids, on December 26, 1888, presented a petition to the circuit court for the county of Kent, setting forth the substance of this report, and charging, under advice and belief, that the assignment was managed and conducted in the interest of Henry M. Goebel, and not in the interest of the creditors; that the design of so conducting the business was to keep it alive, in the interest of said Goebel, instead of seeking to effect an expeditious, economical, and advantageous closing up of the business; that Goebel was employed in the Canal street store, which was the principal one, at a salary of $25 per week, and had the charge and management of the business. The petition prayed that the assignee be ordered to consolidate the three stocks of goods, place them in the Canal street store, and in the basement and ware rooms used in connection with the same; that the assignee be directed to take steps at once for the sale of said stock at auction, and a time ordered when such sale should begin. We do not find the answer to this petition in the record, but it appears from the order made by the court January 2, 1889, that the assignee made answer. By this order he was directed to proceed at once to advertise the goods to be sold, either in job lots or the entire stock, and to sell them for the best price he could obtain, subject to the approval of the court. Under this order, the particulars of which it is unnecessary to give, he caused the goods to be arranged in job lots for sale. Meanwhile he had procured an offer of $500 for the Battle Creek stock. This was reported to the -creditors and the court, and the sale ordered to be made. It was made, reported, and approved, and no objection made to it until the reference of the assignee’s accounts to the commissioner. Some of the job lots were sold, the largest being one fox $4,300 to Bissell, Studley & Foote. This sale was contested by the creditors, but was confirmed by the court, and no appeal taken. The remainder of the goods was then sold at auction, the assignee himself acting as auctioneer. The sale took place at the store where the goods were situated, and the attorneys of the creditors were present. This sale, by which all the goods were closed out, began February 7, 1889. It is evident that the order of the court Was promptly complied with, for in the assignee’s second quarterly report, made the last of February, 1889, he reports these sales. His account of the receipts is there stated as follows:

Canal Street Store.
Cash collections..................................$ '481 39
Cash sales, retail.............................. 2,682 49.
Cash sales, job lots.............................. 4,800 14
Cash sales, auction............................... 4,925 56
$12,889 58
South Division Street Store.
Cash collections..................................$ 6 90
Cash sales, retail................................. 431 44
Cash sales, entire stock........................... 575 00
$1,013 34
Battle Creek Store.
Cash collections.-..................................$ 5 00
Cash sales, retail..................;................ 328 84
Cash sales, entire stock............................ 500 00

On May 20, 1891, the court made an order of reference to Hon. John S. Lawrence, of Grand Rapids, to take testimony in regard to the assignee’s accounts, state an account, and report the same to the court. Before entering upon the consideration of this reference and the contested items, we refer to certain other transactions between the creditors and the assignee.

As early as September 17, 1888, the creditors filed a bill in chancery against Mr. Goebel, his wife, his stepson, Cook, Henry D. Kingsbury, and the assignee, praying for the removal of the assignee and the appointment of a-receiver. This bill set up the transfer to Mrs. Goebel, already referred to, and ’other transfers to Mr. Cook and Mr. Kingsbury shortly before the assignment. In this bill they charged that the assignee had been the attorney of Mrs. Goebel prior to the assignment; that he drew the deeds conveying the property; that they requested him to-subject said real estate to the terms of the assignment; that he refused to comply, stating that the deed to Mrs. Goebel was Iona fide, and was for money and property which she had furnished in purchasing the premises. No-charge of dishonesty, or violation of trust, or. neglect of duty is made in this bill, other than that he refused to-institute litigation to subject the property mentioned in the bill to the trust. To this bill, answers were filed, and upon the hearing the court refused to remove the assignee, or appoint a receiver. Early in 1889 the creditors petitioned the court, under Act No. 215, Laws of 1889, for the removal of the assignee. This petition was not filed for any misconduct, but on the ground that they were entitled to his removal under the act, although he was appointed prior to the time the law took effect. The court removed him. He appealed to this Court, and the order of removal was vacated. Old National Bank v. Joslin, 81 Mich. 413.

The contested claims may, for convenience, be included in three classes: (1) Clerical errors; (2) unauthorized and

illegal payments; and (3) negligent loss of assigned goods, or missing goods.

1. The clerical errors are few, insignificant, and need not be discussed. A statement will be handed down, disposing of them.

2. The same may be said as to unauthorized payments.

3. The principal claim of the creditors is that goods to the amount of several thousand dollars have in some way disappeared, and that such disappearance and consequent loss are the result of the carelessness and negligence of the assignee, for which he should be held liable. This claim appears in the amended order of reference, under the head Surcharges,” and is stated 'as follows:

Loss on goods sold at retail, and below inventory value.................................... $1,000 00
Loss on inventory on wagons, sleighs, and harnesses......................................... 47 00
Costs collected in Supreme Court, not charged.. 47 50
Costs collected in Bissell; Studley & Foote matter............................................ 28 10
'The following jobs done by, or paid for to, H.
M. Goebel while in assignee’s employ:
M. E. Bissell....................... $312 11
McCord & Bradfield................... 50 00
W. H. Anderson......................, 80 00
A. Preusser........................... 110 00
.J. B. Brittain......................... 225 00
Dr. Best............................... 190 00
--— 1,167 11
Wall paper unlawfully given to Goebel as exemptions'...................................... 250 00
Goods shipped to Battle Creek, January 5, 1889, not accounted for............................. 800 00
Goods shipped to Battle Creek, January 9, 1889, above amount accounted for.................. 1,050 00
Attached stock not accounted for............... 800 00
Other goods, details unknown, which, or the proceeds of which, reached Mr. or Mrs. Goebel, and not accounted for.................... $2,500 00
Value of South Division street lease above amount received.!_____________________________________ 25 00
Amount received from Hetherington for services 10 00
Goods sold to S. M. Goebel, private sale________ 99 41
Money received for odds and .ends______________ 10 00
Cash on hand at time of assignment in South Division street or Battle Creek store, amount unknown______________________________________________
Value of Battle Creek stock above amount received_________________________________________ 500 00
Interest on trust funds unnecessarily retained, mingled with his own, and allowed to be retained by others.............................. 500 00

Amendments to this claim were subsequently allowed.

It is conceded that Mr. Joslin appropriated none of the goods or money; that he did not knowingly permit Mr. Goebel, or any other person, to take them away, or appropriate the moneys received therefor; and that he did not in any manner profit by the disappearance of the goods, if there was any. It is also established beyond controversy that no goods were stolen or removed, except those sent to Battle Greek. The goods were bulky, and the employés of the assignee testify that it would have been impossible to remove goods of any considerable value without their notice. This also is substantially conceded. The position of counsel for creditors is stated in their brief as follows:

The shortage which the commissioner found at appraised values was a little less than $6,000. The commissioner did not find that the missing goods had disappeared from the store, and, except as to part of them, the creditors have never made any such claim. Indeed, our complaint is, as to a part of tjhis property, that it remained at the store during and after the sales, and until Mrs. Goebel came into possession, and without being accounted for.”

The sale of the Battle Creek stock for $500 was made to one Jones, who, it appears, did not buy for himself, but for Cook, Mrs. Goebel's son, who afterwards transferred it to her. Bissell, Stndley & Foote transferred the goods they purchased to Mrs. Goebel. She rented the Canal street store after the auction sale, and entered into business there, placing her husband in charge. Considerable is said in the briefs about these two sales being made in the interest of Mr. and Mrs. Goebel. There is no reliable testimony to show that Mr. Joslin colluded with any one else in these sales, or even that he had knowledge that the purchases were made for Mrs. Goebel. If they were so made, it would be no evidence of fraud. Both purchases were ratified by the court, and would have been valid if they had been made to Mrs. Goebel direct. She had property, and possessed the same right to purchase as did any one else. But, as to the sale of the Battle Creek stock, criticism is put to rest by the report of the commissioner, who said:

It is due to the assignee to say that there is no showing that he was aware at the time of the sale that Jones was not a purchaser of the property in good faith.”

It is equally clear that Bissell, Stndley & Foote purchased in good faith. After their purchase, Mrs. Goebel mortgaged her property, and paid them for the goods. We find no evidence of unfairness or misconduct on the part of the assignee in either of these sales. In the former the facts were fully presented to the court, and were known to the attorneys for the creditors, with the exception that they did not know of the two shipments of goods from the Grand Kapids stores to the Battle Creek store, which will be hereafter referred to. The court and creditors were fully informed of . all the facts in regard to the sale to Bissell, Stndley & Foote. This sale having been confirmed, all questions in regard to it are at rest.

Counsel for the creditors claim that the proofs show that most of the goods sold at retail brought prices equal to or above the appraised value. Upon this basis they assume that there is a large deficiency, for which they seek to hold the assignee. They insist that se'veral tons of paper were sent to Battle Creek; that wall paper of unknown amount and value was set out to Goebel a second time, as exempt under the statute; that the property sold to Bissell, Studley & Foote, and through them to Mrs. Goebel, remained in the store or warehouse, and thus afforded an opportunity to appropriate, as included in that sale, almost any desired amount of property; and that certain property attached, before the assignment was not all accounted for, but that portions thereof remained in the subbasement at the time of the closing-out sale.

To hold that goods were left in the store, unsold, would be to run counter to the evidence of all those who assisted in arranging them for sale, and who were at the sale-. The goods were in different rooms. The creditors were represented by their attorneys, who watched the sale. Those who conducted and were present at the sale testify that all the goods were sold. They had the best of opportunities to know, and there is nothing to impeach their testimony, except the inference that there was an actual shortage because the appraised value was not realized. It is contrary to reason to suppose or to find that $6,000 worth of goods escaped the attention of Mr. Joslin or his employés, and the keen eyes of the creditors, who were watching every movement made by the assignee. The commissioner, in paragraph No. 47 of the objections, under the head Shortage,” states the manner in which he reaches his conclusion. He places the stock, as inventoried, at $20,-684.09. He deducts the retail, job lots, and auction sales, and two small items, thus leaving for goods unaccounted for $3,023.53. He is of opinion that this does not represent correctly the actual shortage, but that it was materially larger. He then divides the goods into two classes, wall paper and other goods, takes the inventory of the paper, and fixes an average price by taking certain sales, and estimating tbe value by them. He then states that some old goods must have accumulated, which, if sold at all, would naturally be sold low. He fixes the amount of such goods at 10 per cent., and puts them in at appraised prices. He fixes at an advance of 50 per cent. 40 per cent, of the goods, and estimates the remainder of them at 93 per cent, profit. -'In this way he establishes the retail value of the goods appraised at $8,350.16 at $17,-371.11, from which he deducts the retail sales reported, less pay roll, $5,116.49. In this way he fixes the shortage, for which be holds the assignee liable, at $12,254.62, retail value. He then says:

“That the proceeds of goods to the amount of over $12,000 disappeared during Mr. Joslin’s administration as assignee, and with his consent, I am unwilling to believe; but all the testimony leads me to the irresistable conclusion that, except in name, Henry M. Goebel was allowed to be his own assignee, and made himself a preferred creditor without proving his claim. The goods may have disappeared from the store bodily, and in any case I do not think the assignee can be charged more than their appraised value.
“ I propose to obtain the value of the shortage at appraisal prices. To be accounted for, $8,350.16, which had a retail value of $17,371.11, or 208 per cent, of appraised value. Eetail sales reported, $5,116.49, which, at 208 per cent., appraised value, makes that value $2,459.85.
To be accounted for at appraised value__________$8,350 16
Appraised value of goods retailed.................2,459 85
Shortage.....................................$5,890 31
“ I think this is the lowest amount at which the shortage can be properly computed. It covers the shipments to Battle Creek, above the $150 received; the value of the wall paper set out to Goebel as his second exemption; and the profits on materials taken by Goebel for his jobs.
I allow for these.................................$1,390 31
And the balance, as the full amount claimed as shortage in the amended surcharge............. 4,500 00 .
$5,890 31”

It is impossible to tell the specific goods which were sold at retail. At first the assignee required the items of goods sold, as well as the amount, to be reported. This was found to make additional expense, and was abandoned, and each salesman reported to the cashier the amount only each sale. In this manner the business was conducted before the assignment. Some goods were sold below appraised prices. How many, and to what extent, is matter of conjecture. It required no evidence to prove stocks of this character have considerable of old, shop-worn, and unsalable goods. The proofs show that this stock was not an exception. In the absence of evidence to show an actual appropriation of goods, or of money received upon sales, it would certainly be a harsh rule to hold a trustee liable for an assigned stock.of goods at their appraised value. It must also be remembered that Mr. Goebel did not have a key to either the store or the money drawer; that he handled money only as he made sales, and reported the same, with the cash, to the cashier. Were this suit directly against Mr. Goebel, for the appropriation to his own use of either money or goods, there is no tangible evidence by which he could be held liable for one dollar’s worth. Upon no sound principle, therefore, can the trustee he held liable. It is suggested that goods may have been appropriated by Mr. Goebel in jobs which he took upon his own account after the assignment, and while in the employ of the assignee. It is not enough to show an opportunity to steal or defraud. Undoubtedly, Mr. Goebel might have taken away more goods than he purchased for use in these jobs, but there is no proof of it. The testimony of himself and the other employés in the store is that he accounted for the goods so taken, and no one testifies that he took any more than he accounted for. There would be just as much reason to charge the other employés with appropriation of goods or money. That goods were not stolen, misappropriated, or left in the store for Mrs. Goebel, seems to ns apparent from the following statement: The appraised inventory of the assigned estate was $34,346.42. Sales and collections are $27,665.71. This leaves a shortage of $6,680.71. Counsel for neither the creditors nor the assignee agree with the figures above given as to the inventory. We have taken them from the recapitulation of the inventory, as found on page 83 of the record. Now, the shrinkages that appear conclusively established are as follows: On-auction sales, $2,552.00; on stock of the Nason Lumber Company, $1,200; on bills receivable, $1,900.43. There are other small items, which need not be mentioned. These are enough to show that there is no suph loss as is claimed, since the shrinkages on these items amount to $5,652.43.

The Exemptions:

„ Mr. Goebel was entitled to an exemption. Goods were selected by him, and were undoubtedly chosen out of the best. They were set apart by themselves in the store, and marked. Subsequently, similar goods were required, in order to make sales of others. It was arranged that thesp goods should be placed back in stock, and that Mr. Goebel might make another selection. This was subsequently done. A subsequent agreement was then made between him and the assignee, by which these goods were also returned to the stock, and his exemption arranged and allowed by certain jobs for papering, which were out. standing at the time of the assignment. This arrangement was made upon the knowledge and advice of the circuit judge, and was afterwards ratified by him. We find nothing wrong in the arrangement, and no evidence that the interest of the creditors was injured thereby.

Outside jobs:

The assignee claimed that, he was entitled to the profits from outside jobs outstanding at the time of the assignment. As already shown, this was settled by the authority of the court in the exemption matter, and need not be further mentioned. After the assignment, and while Mr. Goebel was in the employ of the assignee, he took a few other jobs upon his own account, hired and paid his men> bought the goods of the assignee at the usual prices at which they were sold to others, and received whatever profits were made. This course was known, and received the sanction of the assignee. The propriety of such course may possibly be questionable, though there is no impropriety in permitting a clerk to perform work outside of his employment, so long as that does not interfere with the interests of, or his duty towards, his employer. The testimony appears reasonably conclusive that but little, if any, of his time which belonged to the assignee was used in attending to these jobs. We see no good reason •tfhy an employé who purchases goods should be charged more than other parties. To enter upon these jobs was not a part of the assignee’» duties, and if, in so doing, loss had followed, he would undoubtedly have been responsible for such loss.

Battle Greek Bale:

The Battle Creek stock was put in by the appraisers at the cost price, and then 25 per cent, deducted from the total to fix the appraised value. When the assignee reported the offer of $500 for the sale of the entire stock which was left, he reported the appraisal of the stock as it then stood, made by the original appraisers, and they recommended the sale. The cost of removal to Grand Rapids was also stated. This stock did not include the shipments of January 5 and 9 from the Grand Rapids stock. We think that all the facts in connection with this sale were reported and known to both the court and the creditors, that Mr. Joslin was guilty of no suppression of facts or deception, and that he cannot now be held liable, after its ratification by the court, even if it were shown that the sale was an unwise one. It is, however, by no means established that the sale was not for the benefit of the creditors. An examination of the inventory of that stock discloses the fact that it was composed very largely of low-grade goods. It is manifest that during the four months of retail sales the better class of goods were disposed of.

Sales and Shipments of January 5 and 9:

We think the creditors have failed to establish that goods of the amount or value claimed by them were included in these shipments. Nor do we find any evidence of dishonesty or culpable negligence on the part of the assignee. The shipment of January 5 was 147 bundles of paper, weighing 5,910 pounds. The shipment of January 9 consisted of 17 bundles of paper, weight 850; 12 cases of paper, weight 2,690. The first shipment was of common paper, for which the assignee has accounted at $120. Counsel for creditors claim that it was worth $252. This is upon the basis that 2,000 rolls of this shipment were gilts, which were appraised at 5J cents per roll. This claim is based entirely upon the testimony of one Strickland, who was employed in the Battle Creek store, who testified to the opening of these goods, as well as the shipment of January 9, and to placing them in the racks in the store. He did not know the value of the goods, nor was he able to state how many were gilts. The assignee was not present when this shipment was made, but had given instructions to ship some of this low-grade paper to Battle Creek. We think it established by a fair preponderance of evidence that there was no such amount of high-priced paper shipped to Battle Creek in these two shipments as counsel for the creditors contend. We find no reliable testimony which places the valne of the first in excess of $120, or of the .second in excess of $150. The assignee testified that if, upon further investigation, he should become convinced that goods of greater value were shipped, he should take steps to recover them. This should be done.

The claim for loss on goods sold at retail below inventory value was withdrawn upon the hearingbefore the commissioner.

Compensation:

The commissioner recommended that the assignee should be required to seek compensation elsewhere than out of what remains undivided of the trust fund. This is based upon the conclusion reached by the commissioner that the assignment was managed in the interest of the assignor, and that he permitted the assignor to plunder the estate without any attempt to interfere. The circuit judge, who was familiar with the conduct of the assignee from the beginning to the end, and before whom the homestead case was tried, and who heard also the contest over the Bissell,. Studley & Foote sale, as well as the various other litigated proceedings in the case, arrived at the contrary conclusion. We are constrained to concur in the conclusion of the circuit judge. That the assignee was loose in some of his methods, and that he was negligent in not preserving the original inventory, which appears to have been taken on loose sheets of paper, and certain other books and documents, is true. But we do not think this sufficient to charge him with the loss of all compensation. The wisdom of the employment of an assignor depends entirely upon the character of the-assignor. In many cases his employment would be for the benefit of the creditors, for he is more familiar than any one else with the business^ the character of the goods, and the responsibility of his debtors. The assignee testified that he was advised by one of the attorneys, who represented one-fonrth of the creditors, to employ Mr. Goebel. This is not contradicted. Not until after the first account was filed, wherein it conclusively appeared that it was unwise to sell at retail, does any fault appear to have been found with the employment of Mr. Goebel. If there were proof that Mr. Goebel had stolen or appropriated any of the goods or money to his own use, a different question would be presented. The principal claim then made appears to have been that the assignee was continuing the business in order to enable Mr. Goebel to effect a settlement with his creditors, and not that there was a misappropriation of money or goods. Within a month or six weeks after this charge was made, the entire stock was disposed of, during which time there is no evidence that he removed any goods. Furthermore, there is nothing upon this record to show that Mr. Goebel, pzior to his assignment, was regarded as dishonest, nor that the assignee had any knowledge or information to warn him that it was unsafe to employ him as a clerk. The compensation of the assignee will be fixed at $500, besides what has been allowed for his services and time in the various litigations in which he has been engaged. This compensation is small, but we do not think that the assignee is blameless in the unfortunate controversies in which he became involved with the creditors.

The Attached Stock:

Prior to the assignment a creditor had brought suit against Goebel by attachment, and levied upon goods to the value of $84=1.31. The assignee petitioned the court to pay tins claim, to replace the goods in stock, on the ground that they were needed in the retail trade. This order was granted, the claim paid, and the goods replaced-It is now claimed that all these goods were not sold, but are a part of the shortage. We find no reliable evidence to sustain the claim.

There are many other phases of this controversy in the briefs of the counsel for the respective parties, but we deem it unnecessary to discuss them.

Our conclusion is that, except as herein modified, the decree of the court below must be affirmed. The assignee will recover his taxable costs, including a fee of $900 for his solicitors, to be paid out of the funds in his hands. The case will be remanded for a decree to be entered in accordance with this opinion, and for the- closing up of the estate.

MoG-rath, C. J., Long and Hooker, JJ., concurred. Montgomery, J., did not sit.


author: Hooker, J. Montgomery, J.

text:
    Howard S. Jaffray et al. v. Ward H. Jennings and Ward L. Jennings.

      Attachment — Partnership—Fraud of one member of firm.

    The individual property of an innocent copartner is not liable to attachment for a firm debt fraudulently contracted by the other member of the firm.
    So held where, after a suit had been commenced against two partners for a firm debt, a writ of attachment was sued out upon an affidavit alleging that the defendants had fraudulently contracted the debt upon which the action was brought, and the same was levied upon the individual property of one of the defendants, who was innocent of the alleged fraud, the same having been perpetrated by his copartner. At the time of the levy the firm had sufficient personal property out of which the claim could have been satisfied. The defendant whose property had been seized moved for the dissolution of the attachment, and an order granting the relief prayed for is affirmed.

      Certiorari -to Lapeer. (Moore, J.)
    Argued April 27, 1894.
    Decided September 25, 1894.
    Plaintiffs bring certiorari to review proceedings dissolving an attachment.
    Order of dissolution affirmed.
    The facts are stated in the opinion.

      Fletcher & Waniy, for petitioners in certiorari.

      Geer & Williams, for defendants.

       For note on “Attachment of Individual Property of one Partner for Fraud of his Copartner,” see report of this case in 25 L. R. A. 645.

   Hooker, J.

Plaintiffs were copartners', residing in New York, and were jobbers, of whom the defendants (father and son, and also partners) purchased goods. The son, Ward L. Jennings, having purchased a quantity of goods for his firm from the plaintiffs, the latter commenced proceedings by attachment upon an affidavit which alleged that the defendants fraudulently contracted the debt upon which the action was brought, viz., that arising from the purchase mentioned. The writ was levied upon property belonging to the father, and upon his application the attachment was dissolved by the circuit judge. It was admitted that at the time of the levy the firm had sufficient personal property out of which the claim could have been satisfied. Defendant’s contention is that the individual property of the innocent defendant was not subject to seizure by attachment.

Counsel for the plaintiffs build a strong argument upon the doctrine that each partner is an agent of his fellows, citing May v. Newman, 95 Mich. 501, to the proposition that an attachment lies against a debtor whose agent fraudulently contracted the debt. But the statute upon which the remedy by attachment depends has relieved the innocent partner from the application of this rule. An examination of the statutes may aid in solving this question. We start with the proposition that attachment is a harsh and extraordinary remedy, unknown to the common law; and the statutory provisions upon which the right depends, being in derogation of the common law, must be strictly construed, and cannot be extended beyond their terms. See cases cited in 1 Jac. & C. Dig. p. 96, § 1; Estlow v. Hanna, 75 Mich. 219, 224.

An action against joint debtors is like any other action. It is aimed at the individual debtors. A service on one is not a service upon the other; they may appear separately; their defenses may be different; the judgment is against each for the whole amount; the execution issues against the individuals, the officer being commanded to collect the debt from the goods and chattels, and, for want thereof, of the lands and tenements, of the individuals. And this is as true where the joint obligation is a partnership debt as in cases where the debtors are not •copartners. The act authorizing proceedings in attachment permits any creditor to have an attachment against his debtor, upon conditions mentioned. The conditions are that he shall show that the defendant — i. e., the debtor— is believed to be guilty of certain acts, or to possess certain intentions regarding the debt or his property, fraudulent in character, the general tenor of which indicates danger that such debtor will put his property beyond the reach of the creditor. The law lays hold of the property of such debtor, to preserve it for the creditor. So long as there is a sole debtor, n© difficulty is likely to arise; but, when tbe debt is joint, tbe question arises, how far should the fraudulent acts and intentions of one subject the property of another to seizure? The acts, if strictly construed, only provide for attachment against the debtor who is guilty of the fraud. An additional remedy, summary in its nature, is given against him. It is given, in terms, against no others. And where the act is done by one only, the law can only be made applicable to another by invoking the doctrine of agency.

No one will question the fact that one can, through an agent, subject his property to attachment; and this is as true where the agent is a partner as where he is not, and where the act complained of is the fraudulent purchase of goods by a partner, as in this case. There is much persuasiveness in the argument that, as the firm received the benefit and appropriated the fruit "of the transaction (whether with knowledge upon the part of both, or not), the rule that a partner is an agent of his copartner makes his act the act of both. It would not be so convincing if the cause for attachment were another of those named in the statute — e. g., if one only was shown to have an intent to dispose of the firm property, or had actually done so without the knowledge of his partner, or where he absconded, or removed out of the State, or was about to do so, with intent to defraud the firm creditors. Still more hard would be the attachment against one where his copartner has merely resided out of the State for three months, which in itself is ground for attachment, regardless of the honesty of his intention. Can it be said that in all of these cases these acts are partnership acts, binding the partners under this application of the doctrine of agency? Is it true that the creditors of a firm in Michigan, one of the members of which lives in Chicago, have the absolute right to commence all actions against the firm by attachment, and to levy not only on the firm property, but that of each resident member, as well as that of the non-resident? If not, it must be that this doctrine is improperly applied, or a distinction must be drawn between the different causes for attachment named in the statute, and the liability limited to those acts which we may say, either as a conclusion of fact or law, are the acts of the firm, which would seem to limit the cases to those where the debt was fraudulently contracted, and where the property of the firm had been assigned, concealed, or disposed of with intent on the part of one to defraud the firm creditors. If plaintiffs’ theory -is correct, these would be the acts of all partners, and subject to seizure not only the partnership property, but the individual property of each partner, no matter how honest, and notwithstanding their solvency. There can be no doubt that partners are bound by the contracts, and many times by the torts, of one of their number, to the extent of liability. But is it as clear that the nature of the remedy is always subject to the same rule? As already stated, this remedy is statutory, and the statutes must show the design to cover such cases as this, or they are not to be treated as within them.

The attachment statute is borrowed from New York. It will be found in the Revised Statutes of 1838 and 1846 and the Compiled Laws of 1857. The section of which How. Stat. § 8015, is an amendment remained unchanged from the time of its adoption until 1861. It is section 19, chap. 1, tit. 4, pt. 3, p. 512, Rev. Stat. 1838. The same is found in Rev. Stat. 1846, chap. 114, § 30, p. 517, and 2 Comp. Laws 1857, § 4771. It reads as follows, viz.:

“When two or more persons are jointly indebted as joint obligors, partners, or otherwise, the attachment may be issued against the separate or joint estates or property of such joint debtors or any of them, and the same proceedings shall be had as hereinbefore prescribed.’’

It goes without saying that under this act, where all the joint debtors are shown to have participated in the statutory act, or where it appears that each has entertained the fraudulent intent, the writ should issue against all; and it •is as plain that in such case the writ could be issued against the separate or joint estates of- the debtors. So far it lays down a plain, consistent, and just rule. Shall we go further, and say that it was meant that the writ would be as far-reaching in cases of joint debtors who are not partners, where one was innocent of wrong? That would probably not be claimed by any one. As to partners, the same claim might'be made as is made here, viz., that in dealing with the partnership property the act of one is the act of all, and that the consequences are the same to all.

But this act had received a construction before it became a law in Michigan. In Re Cyrus Chipman, an absconding debtor, 14 Johns. 217, decided in 1817, it was held that an attachment might issue against the property of one of several partners who absconded, for a debt due by the frm, although his copartners were resident within the ¡state, and subject to process. This is not conclusive of vthe question here, and is cited only to show that counsel in that case did not resort to the remedy by attachment against all of the partners. Two years later the same court held that an attachment might issue against the separate property of an absconding debtor upon a debt due from his copartnership. Here, again, the writ appears not to have been sought against the partner who remained. But the case went further, and held that the partnership property could not be seized; and the reason was that the other partner had a right to retain it to pay the partnership debts. In re Smith, 16 Johns. 102.

It may still be said that in neither of these cases were ¡all of the partners sued ‘in attachment, and therefore there yet remains doubt if the right contended for does not exist under this statute; and it is probable that such doubt led to the amendment of 1861, which reads as follows:

“When two or more persons are jointly indebted as joint obligors, partners, or otherwise, and an affidavit shall be made, as provided -in section two of this chapter, so as to bring one or more of such joint debtors within its provisions, and amenable to the process of attachment, then the writ of attachment shall issue against the property and effects of such as are so brought within the provisions of said section; and the officer shall be also directed in said writ to summon all such joint debtors as may be named in the affidavit attached thereto, to answer to the said action as in other cases of attachment.”

Before discussing the statute, let us review the situation. Under the previous statute, attachment lay against all joint debtors, whether partners or not, where it could be shown as matter of fact that all participated in the act constituting a cause. It was also plain that, where one joint debtor only committed such act, his property only was subject to the writ, unless there was a partnership. There was, then, no necessity for legislation to reach either of these cases, for joint debtors, where not partners, were fully, protected where innocent of wrong, and the creditor had his remedy against both where both participated, and against the offender where only one was guilty. In this condition of affairs, the Legislature passed section 8015, thereby giving immunity from attachment to joint debtors, including partners, who were not themselves participants in the wrongful act. Now, by a construction of this act, it is sought to say that partners are not within its terms, because the act of one is the act of all, and that, as a matter of law, they are, therefore, all participants in the fraudulent act. If that is so, the statute seems to have no office to perform. It has relieved nobody. Joint debtors, not partners, could not be attacked by attachment before unless guilty. But there may have been a doubt about partners. That doubt seems to have caused the enactment of a law whose only object must have been to reach and relieve the very class of cases which the construction contended for seeks to exclude from its protection.

As said at the outset, attachment is a harsh and extraordinary remedy. The law may well restrict its use, and deny it as against all honest persons, though they -have the misfortune to be connected in business as partners with dishonest persons. Such persons have legal obligations to, discharge in relation to the partnership affairs. They must see that obligations are discharged, and the law presumes that they will faithfully do so. No very good reason suggests itself why the private foitune of an honest partner should be seized because his partner has been detected in a fraudulent act in connection with partnership affairs. • It is common knowledge that few men or firms can survive an attack by attachment. It is the almost certain precursor of insolvency, as in former days it was of bankruptcy, and we should hesitate before broadening the scope of the act in question.

A case quite similar to the present was before the Court, viz., Edwards v. Hughes, 20 Mich. 290. Mr. Justice Cooley wrote the opinion, and seems to have taken a similar view of these statutes to that expressed above. It is true that the facts in that case may permit it to be distinguished from the present, but the language used is broad, and iWs hardly possible that the Court could have overlooked the'contingency of such cases as this. Since this decision we think the bar have understood that the liability was limited to such partners as personally participated in the fraudulent act. See Tiffany’s Justice Guide (5th ed.), p. 62, note 1, where this doctrine is laid down; 1 Shinn, Pl. & Pr. § 307. See, also, Miller v. Circuit Judge, 41 Mich. 326, where a writ issued against non-resident partners only.

We think the learned circuit judge correct in his conclusions, and that his order dissolving the attachment should be affirmed, with costs. Ordered accordingly.

Long and Grant, JJ., concurred with Hooker, J.

Montgomery, J.

(dissenting J. Plaintiffs sued out an attachment against the defendants, alleging that the defendants, comprising a copartnership which consisted of Ward H. Jennings and Ward L. Jennings, fraudulently incurred the indebtedness for which suit was brought. The writ of attachment was levied upon the property of Ward H. Jennings, and he filed an application to dissolve the' writ, which was allowed. The sole question is whether the allegation in the writ that the indebtedness was fraudulently contracted by the defendants was made out.

The evidence is abundant that Ward L. Jennings made false and fraudulent representations as to the standing of the defendants and as a basis for the credit which was extended at the time the goods in question were sold. It is contended, however, that the defendant Ward H. Jennings’ individual property cannot be made subject to attachment by the fraud of Ward L. Jennings. This question must be determined by ascertaining whether the institution of the proceedings was justified as against the two defendants.

The affidavit very properly alleges that the defendants fraudulently contracted the debt, not thar one of the defendants did so. Each partner was, in the matter of the contracting of the indebtedness, the agent of the partnership; and the fraud of the agent in contracting snoh indebtedness is the fraud of the principal, as was held in May v. Newman, 95 Mich. 501. The statute in terms provides the remedy by attachment against the defendant, when it is shown “that he fraudulently contracted the debt or incurred the obligation respecting which the suit is brought.” Who is to be' said to have fraudulently contracted the debt or incurred the obligation? Obviously, the purchaser of the goods; not Ward L. Jennings alone. Both members of the firm incurred the obligation simultaneously, and both contracted the indebtedness.

Section 8015, in my judgment, has no application. That provides that,—

“When two or more persons are jointly indebted as joint obligors, partners, or otherwise, and an affidavit shall be made, as provided in section two of this chapter, so as to bring one or more of such joint debtors within its provisions, and amenable to the process of attachment, then the writ of attachment shall issue against the property and effects of such as are so brought within the provisions of said section.”

This section gives no support for the suggestion that one partner may not, when representing the firm, fraudulently contract a firm indebtedness. Nor is the case of Edwards v. Hughes, 20 Mich. 290, relied upon by defendants, in point. In that case, it is true, it was said, construing the section just quoted:

“It will be seen from this section that when the plaintiff is able to make a case against one of several debtors, whether they are indebted as partners or otherwise, he is not to allege a joint wrong by them all, but must set forth his case in the affidavit according to the facts. There is good reason and plain justice in this statute, since otherwise the party who has the misfortune to be joined in the same legal obligation with a dishonest person may himself be subjected, not only as to his property owned jointly with the other, but as to his individual property also, to -all the inconveniences and rigorous treatment to which he could have been made liable if personally guilty of the like dishonesty.”

But the misfortune of the present defendant Ward H. Jennings does not arise from his having joined in the legal obligation oí Ward L. Jennings, a dishonest person." His liability grows out of the fact that the firm of which he was a member fraudulently incurred an obligation. In Edwards v. Hughes the fraudulent act of the copartner consisted of transferring his individual property in fraud of the creditors of the firm. It is perfectly apparent that he could not, by an act thus disconnected from the business of the firm, subject the. property of his copartners to the extraordinary process of attachment. But, in the case under consideration, the act of Ward L. Jennings was the act of the firm. Any other view of this statute results in this: that a partner having a nominal interest may incur indebtedness on behalf of the firm fraudulently, and no process can issue against either the copartnership property or the property of his copartners. The extent to which the creditor could go would be to issue his process against the interest of the nominal partner. This is plainly not the purpose of the statute, in my judgment.

I think the case falls within the principle in May v. Newman, and the order dissolving the attachment should be reversed, with costs.

McGrath, O. J., concurred with Montgomery, J.

       After the commencement of suit by declaration against both defendants, the attachment was sworn out under How. Stat. §§ 8018-8028, which authorize the issuance of a writ of attachment in a suit already commenced.


text:
    Simon Westra v. The Estate of Janet Westra, Deceased.

      Practice in circuit court — Charge to jury — Requests—Appeal— Husband and wife — Contract—Estates of deceased persons — Commissioners on claims — Pleading — Set-off.
    1. Where the circuit judge,' in his oral charge, correctly states the law applicable to the case, it is not error to refuse specific requests; citing Shearer v. Middleton, 88 Mich. 621; People v. Hubbard, 93 Id. 322, 326; Stevens v. Pendleton, 94 Id. 405; Ellis v. Whitehead, 95 Id. 115.

    2. Where the record does not purport to set forth all of the evidence bearing upon a certain question, it will be assumed that there was sufficient in the record upon which to base the charge of the court upon that subject.
    3. On the trial of an appeal from the allowance of a claim filed by a husband against the estate of his deceased wife for materials furnished and work done in improving her land, the court, after instructing the jury at the request of the claimant that they might find that the improvements were made under an implied contract between the parties, defined express and implied contracts, and added that, as between husband and wife, the law does not imply any agreement on the part of one to pay for labor performed or money expended for his or her benefit by the other, without any agreement or understanding that such services should be paid for or expenditures repaid; but that, if they found that the claimant did the work and furnished the materials upon an understanding with his wife that he should be paid for the same, he would be entitled to recover, even though the very words of the bargain between them might not be proved or be susceptible of proof; and that this wag all that was meant by the word “implied,” as used in the instruction first given. And it is held that while the request, standing alone, was clearly erroneous, with the explanation given, the jury could not have failed to understand the law applicable to the case.
    4. Where, on an appeal from the allowance of a claim against an estate, no formal issue is made in the circuit court, the case must be tried in the same manner as if it were before the commissioners on claims.
    5. In such a case the administrator-is not required, under How. Stat. § 5896, which makes it the duty of administrators or executors to exhibit the claims of the deceased in offset to those of creditors, to give notice of set-off until the court, upon motion, shall order him to do so, or until an issue has been framed which precludes any claim of set-off.
    Error to Kalamazoo. (Buck, J.)
    Submitted on briefs April 5, 1894.
    Decided September 25, 1894.
    Appeal from the allowance of a claim by commissioners. The estate brings error.
    Reversed.
    The facts are stated in the opinion.

      Osborn, Mills & Master, for appellant.

      Wesselius & Corbitt (Frank E. Knappen, of counsel), for ■claimant.

       See Kinney v. Ferguson, 101 Mich. 179.

   Grant, J.

Simon Westra, the claimant, was the husband of Janet Westra, deceased. He presented a claim against the estate for $626.29 for materials furnished and work done in the construction of a house, barn, and fence upon his wife's land. The record is meager, and does not purport to set forth all the testimony.

The first error alleged is upon the charge of the court. The court gave certain requests presented in behalf ■of both parties. The first request given on behalf of the claimant reads as follows:

“That you may find that Mrs. Westra did agree fully to the details, terms, and prices with her husband, and such other things as would render the understanding between the parties full and complete in every detail, or that the same may have been done under an implied contract; that is, a contract arising by implication, arising from the situation of the parties and the relation and dealings of the parties, conduct of the business, or the statements of the parties made with reference thereto."

Standing alone, this charge is clearly erroneous; but the court immediately proceeded to instruct the jury as to what he meant by this instruction, stating that the word implied ” was not used therein in its ordinary, technical, legal sense. After stating what express and implied contracts are, the court added:

" As between husband and wife, the law does not imply any agreement on the part of one to pay for labor performed or money expended for his or her benefit by the other, without any agreement or understanding that such services should be paid for or expenditures repaid. But if you find that the claimant did work in improving his wife’s property, or paid out money for material used in improving her property, upon an understanding between them that he should be repaid such expenditures and be compensated for his work, then claimant would be entitled to pay for his services and expenses in improving the wife’s property, even though the very words of the bargain between them might not be proved or susceptible of proof; and this is what is meant, and all that is meant, by the word 'implied,’ as used in the instruction given you in the request of counsel for the parties in this action.
"In this case the claimant is prevented from testifying to any matters that were equally within the knowledge of Janet Westra, deceased, and a contract, therefore, cannot be maintained by his testimony. He has produced, however, certain witnesses who have related conversations which they testified they had with Mrs. Westra in her lifetime; and if you find from these conversations a conclusion to the effect that Mrs. Westra did agree to pay her husband for the labor performed by him and others, and for which he paid, and for the materials which entered into the construction of said buildings, and if you find such statements to be true, then you are at liberty to find that a contract did exist between himself and his wife, and he is entitled to recover therefor.”

The court also gave the request offered on behalf of the estate, to the effect that, unless the jury found by a preponderance of evidence that the deceased wife of the claimant entered into a specific and express contract to repay any money he might expend in building on or improving the property owned by her, 'claimant could not recoyer in the ease. This instruction the court, in a verbal charge, also modified and explained substantially as above stated in his explanation when giving the claimant’s request. We think that with these explanations the jury could not have failed to understand the law applicable to the case.

Had the court given a connected charge, in its own language, covering the .law of the case, the apparent inconsistencies would undoubtedly have been avoided. The learned circuit judge said to the jury that he gave these instructions in the very language of the requests of counsel, because this Court had ruled that it was the duty of the courts to do so whenever it could be done. If any such dicta are found in the decisions of this Court, we hold, as we have frequently done, that it is not the law. If the circuit judge, in his oral charge, correctly states the law which is applicable to the case, it is not error to refuse the specific requests. Ellis v. Whitehead, 95 Mich. 105, 115; Stevens v. Pendleton, 94 Id. 405; People v. Hubbard, 92 Id. 326; Shearer v. Middleton, 88 Id. 621. Upon this question, we call special attention to the language of this Court in People v. Hubbard, supra.

The court, as appears from the above charge, left it to the jury to determine from certain conversations had with Mrs. Westra whether she agreed to pay her husband for the labor and materials. These conversations are not given in the record, and there is only a briet statement that testimony was given, in the nature of admissions by her, tending to prove that he did not expect to furnish the materials or do the work gratis, and that she did not expect him to do so. The record does not show that this was all the evidence in the case bearing upon this alleged agreement. We must therefore assume that there was sufficient in the record upon which to base the charge of the court. When the relation of husband and wife or parent and child exists, there is no implied contract to pay for services rendered. The presumption in such case is against a contract relation. In these cases it is, of course, the duty of the court to determine that there is evidence legitimately tending to establish an express contract; and, if there be a conflict upon such evidence, then it is a question for the jury. As this record does not purport to contain all the evidence, we do not think it best to pass upon the effect of what it is alleged these admissions tended to establish. The court considered them sufficient to establish, if found to be true, an express contract. When all the evidence, or the substance of it, which was before the court below, is before us, the question will be fairly presented for 'our determination.

The case was tried in the circuit court upon the same papers and pleadings that were before the commissioners. Upon the trial the administrator offered evidence of an offset, which was ruled out by the court because no notice had been given, and it did not appear that any claim of offset was made before the commissioners. There was no evidence upon this point except the report made by the commissioners. This report was evidently made upon the customary blank furnished for that purpose. The headings upon the blank were as follows, and in the following order:

1. Names of claimants or creditors, and character of claims.

2. Amount claimed.

3. Amount thereof disallowed.

4. Amount of offset.

5. Amount thereof disallowed.

6. Amount of final balance, favor of creditor.

7. Amount of final balance, favor of estate.

The amount of the claim was set forth in the second column. There were no entries in the third and fourth columns. In the fifth was $326.29. In the sixth, $300. It does not therefore appear of what the amount of $326.29, disallowed by the commissioners, consisted. It might have been set-off, payment, or disallowance of certain items of the claim.

How. Stat. § 5896, makes it the duty of the administrator or executor to exhibit the claims .of the deceased in set-off to the claims of the creditor. No formal issue was ffemed in the circuit court, to which the administrator had appealed. It does not appear that any bill of particulars was demanded by either party, either before the commissioners or in the circuit court. Under these circumstances, we think it was error to exclude evidence of set-off. Where no .formal issue is made in the circuit court, the case must be tried in the same manner as if it were before the commissioners, and, under the statute above cited, an administrator is not required to-give notice of set-off until the court, upon motion, shall order him to do so, or until an issue has been framed in the circuit court which precludes any claim of set-off.

Judgment reversed, and new trial ordered.

The other Justices concurred."


author: McGrath, C. J.

text:
    Henry Naegely v. The City of Saginaw et al.
    [ See 94 Mich. 240.]

      Municipal corporations — Council proceedings — Bridge bonds — Right to issue — Conditions precedent.

    1. A corporate act which can only be taken by a majority vote of all of the aldermen elect cannot be rescinded except by a like vote; citing Stoclcdale v. School-District, 41 Mich. 226; WhitnQy v. Village of Hudson, 69 Id. 189.
    2. A resolution authorizing the issue of bonds in a given sum is not rescinded by a subsequent resolution limiting the present issuance to a less amount.
    3. A city charter provided that the common council should prescribe the rules for the transaction of its business and for its proceedings, which rules should have the effect of law. Among the rules adopted was one providing that no resolution or proceeding imposing taxes or assessments, or requiring the payment, expenditure, or disposition of money, or creating a debt or liability therefor, should be passed at the same meeting at which it was introduced, if objection should be made by any member. The council, proceeding upon the theory that a prior resolution had limited to $90,000 the present issue of bridge bonds theretofore duly authorized in the sum of $200,000, adopted a resolution providing for the issue of $165,000 of such bonds, arid directing the manner of their disposition. And it is held that said resolution was not new business, within the prohibition of the rule.
    4. An objection that a direction by the common council of a city to the mayor, controller, and clerk to accept bids and make sale of bonds is an illegal delegation of power is sufficiently answered by the fact that, within two days after a bill was filed by the objectors to restrain the issuance of the bonds, the officers named reported their action to the council, and the same was ratified and confirmed by that body.
    5. The charter of the city of Saginaw, which makes the declaration by the common council of the necessity of public improvements, the cost, or any portion of the cost, of which is to be assessed upon the locality of the improvement, essential as preliminary to the making of the same, does not contemplate that, before a tax shall be levied or bonds issued to provide the fund out of which the proportion of the cost to be borne by the city is to be paid, such necessity shall be first declared.
    6. The state of the record is held not to warrant the conclusion that the Emerson bayou, adjoining the Saginaw river in the city of Saginaw, at the point where it is sought to be crossed by a bridge which the city desires to construct __across said river, is navigable for boats or vessels of 15 tons-burden or more, within the meaning of How. Stat. § 495, which requires the permission of the board of supervisors of a county to the construction of a bridge over a river which is thus capable of navigation.
    7. The Secretary of War, in response to the application of a city for his approval of the location and plans of a bridge which the city desired to construct over a navigable river, forwarded to the city engineer an instrument in duplicate, which, after reciting the act of Congress governing the matter, certified that the map of location and plans of the bridge, attached to the instrument, had been approved by the Secretary of War, subject to the condition that a government 'engineer should supervise the construction of the bridge. The instruments were accompanied by a request that, when said condition had been accepted by the mayor of the city, they should be returned to the war department for completion, and below the blank left for the signature of the Secretary of War appeared an acceptance of said condition, ready for the signature of the mayor. And it is held that, conceding that the approval of the Secretary of War was a condition precedent to the issuance by the city of bonds to raise money with which to construct the bridge, the correspondence was a sufficient guaranty that his formal approval would follow the city’s acceptance of the condition as to supervision of the construction of the bridge to warrant the issuance of the bonds.
    8. Where an issue of bonds is authorized for the purpose of raising money with which to construct a bridge and to procure the right of way therefor, it is no objection to the issuance of such bonds that the right of way has not been obtained.
    Appeal from Saginaw. (Gage, J.)
    Submitted on briefs April 13, 1894.
    'Decided September 25, 1894.
    Bill to restrain the issuance of certain bridge bonds. Complainant appeals.
    Decree affirmed.
    The facts are stated in the opinion, and in Tillotson v. City of Saginaw, 94 Mich. 240.

      Holden & Bradt, for complainant.

      Charles S. Smith (Benton Hanchett, of counsel), for defendants.
   McGrath, C. J.

The bill in this case was filed to restrain the issue of bonds for the construction of bridges. The resolutions ordering the issue, and the authority of the city in the premises, were passed upon in Tillotson v. City of Saginaw, 94 Mich. 240. Other questions are raised which were not presented in that case, and subsequent action of the common council is relied upon.

In October, 1891, the city obtained permission from the board of supervisors of Saginaw county to construct three bridges across the Saginaw river. On February 23, 1892, the council adopted resolutions proposed by Aid. Eellis, which are set forth in the opinion in the Tillotson case, on pages 242 and 243, providing for the issue of bridge bonds in the sum of $200,000, of which $125,000 were to be issued under section 25, tit. 5, of the charter, and $75,000 under Act Ho. 321, Local Acts of 1891. Appended to each of said resolutions was a further resolution fixing the amount of each bond; the date thereof; the rate of interest, and when payable; where principal and interest should be made payable; the time when said bonds should mature and fall due, — and directing that the bonds be made, executed, issued, negotiated, and sold by the mayor, controller, and clerk at the best obtainable price therefor, but not below their face or par value.

On April 5, 1892, the council had adopted resolutions for the issue of Genesee street improvement bonds in the sum of $30,000. After the decision in the Tillotson case, and on January 23, 1893, resolutions were presented to the council by Ald. Reynolds, and adopted, as follows:

“Resolved, by the common council of the city of Saginaw, that the mayor, controller, and city clerk of said city be and they are hereby instructed to limit the present issuance and sale of the bridge bonds ordered by'the resolutions of Ald. Reilis, adopted February 23, 1892, found on pages 652 and 653 of the C. C. P. for the years 1891 and 1892, to the amount of $90,000. * * * * *
“Resolved further, that the mayor, controller, and city clerk be and they are hereby instructed to limit the present issuance and sale of the bonds known as Genesee Street Improvement Bonds/ ordered by the resolution of Aid. Cadagan, adopted April 5, 1892, found on pages 711 to 712 of C. C. P. for the years 1891 to 1892, to the sum of $2o;ooo.”

On January 25, 1893, the controller issued a circular asking for proposals for the bonds. At the regular meeting of the council' held January 30, 1893, Aid. Smith presented the following resolutions:

“Resolved, that the resolutions offered by Aid. Rellis, and, found on pages 652 and 653 of the common council proceedings for the years 1891 and 1892, and adopted by the common council February 23, 1892, directing the raising of $125,000 for the purpose of constructing a bridge across Saginaw river and Emerson bayou, on a line of Court street extended easterly to the street authorized November 2, 1891, by the council, etc.; also a bridge across said river on a line of Maple street, in the village of Carrollton, extended into the First ward of the city of Saginaw; and also a bridge across said river east from Perry street, in said city, — and to procure the light of way for said bridges, and authorizing the issuing of the bonds of the city as a means of raising said amount for said purposes, etc.; and also directing the borrowing of $75,000 to be used in defraying the expenses of procuring the right of way for and approaches to and the building of three bridges across said river for said city, as provided by Act 321 of the Laws of Michigan, approved May 8, 1891, etc., and authorizing the issuing of the bonds as a means of borrowing said snm for said purposes, etc., — be and the same are hereby rescinded.
“And resolved further, that the mayor, controller, and city clerk be and they are hereby directed to not make, execute, issue, negotiate, or sell any such bonds whatever.”

When the reading of the resolutions was commenced, eight of the aldermen present retired. The journal of the council records said resolutions as having been adopted by a vote of 14 ayes and 5 nays. The journal also shows that a motion to reconsider said resolutions was made, and laid upon the table.

Thereupon a call for a special meeting of the common council was signed by 11 aldermen, and a special meeting was held January 31, 1893, at which 28 aldermen and the mayor, who is ex officio a member of the council, were present. At said meeting the mayor presented a veto of the action of the council in adopting the resolutions last aforesaid. Thereupon, the following resolution was presented by Aid. Achard:

“Resolved, that the resolution offered by Aid. Smith, at the regular meeting held on Monday evening, January 30, .1893, rescinding the resolutions adopted February 23, 1892, ^providing for the issuing of bonds in the sums of $125,-<000 and $75,000, for the purpose of building three bridges across Saginaw river, be and the same is hereby rescinded and annulled.” '

The resolution was adopted by a vote of 16 ayes to 13 nays.

On February 6, 1893, at a regular meeting of the common council, Aid. Johnson presented the following resolution:

“Resolved, by the common council of the city of Saginaw, that the mayor, controller, and city clerk be and they are hereby instructed to proceed with the issuance and sale of the $90,000 of bridge bonds referred to in the resolution of Ald. Reynolds, adopted January 23, 1893, found on O. C. P. page 615, in accordance with the provisions of section 25 of title 5 of the charter, as required by the first resolution of Aid. Rellis, adopted February 23, 1892, and found on page 652, C. O. P. 1891 and 1892, and that they 'proceed with the issuance and sale of the bridge bonds in the sum of $75,000, in accordance with Act 321, Local Acts of 1891, as required by the second resolution of Aid. Rellis, adopted February 23, 1892, and found on page 653, C. C. P. 1891 and 1892, and that they accept the bid of the highest responsible bidder for the bridge and Genesee street improvement bonds, provided the said bid is not below the par value of said bonds.”

Objection was made to the consideration of the resolution, but the mayor ruled that the resolution was not new business, and that one objection did not postpone its consideration. An appeal was taken from the ruling of the mayor, and the chair was sustained by a vote of 20 to 9. The resolution was then adopted by a vote of 16 to 14. On February 11 the bids for the bonds were opened, and this bill was filed on the same day. On February 13 the controller and clerk reported their action upon the bids to the council, and such action was approved.

Respecting these resolutions complainant’s counsel contend:

1. That the resolution of Aid. Reynolds not only limited entire amount of bridge bonds to be issued to $90,000, but that it in effect entirely annulled the former resolutions of Aid. Rellis.

2. That, assuming that the Reynolds resolution limits the entire issue of bridge bonds to $90,000^ it is invalid, because it does not provide that they shall be issued under the charter, or under Act No. 321, Local Acts of 1891.

3. That the resolution of Aid. Johnson was ineffectual to authorize the issuance of $165,000 bridge bonds, because it was irregularly adopted, inasmuch as it was not' laid over a week when objected to by Aid. Nauer, and further because it only fixes the dates of bonds, their maturity, denominations, and rate of interest, by reference to the Rellis resolutions, which, it is claimed, had been annulled.'

4. That the original resolutions of Aid. Rellis were rescinded by the resolution of Aid. Smith.

5. That the mayor had no authority to veto the resolution of Aid. Smith.

6. That the action of the council at the special meeting held January 31, when they attempted to rescind the resolution of Aid. Smith, was ineffectual and void, because the special meeting was not regularly called.

The resolution of Aid. Reynolds does not purport to rescind the Rellis resolutions. It, in express terms, instructs the mayor, etc., “to limit the present issuance and sale.” The second objection made to it clearly shows that it was not intended as a substitute for the Rellis resolutions. It is evident, also, that the limitation was intended to apply to the issue of $125,000, under the first of the two Rellis resolutions. The preamble contemplates a necessary expenditure of $165,000, exclusive of the Genesee street improvement, which could only be met by the limited issue of $90,000, and the issue of $75,000 under the second Rellis resolution. It is made clear by the Johnson resolution that this was the understanding of the council respecting the Reynolds resolution.

Under the provisions of section 6, tit. 3, of the charter, the resolutions authorizing the issue of bonds required a majority vote of all the members elect of the council. A corporate act which can only be taken by a majority vote-of all the aldermen elect could not be rescinded except by a like vote. Stockdale v. School-District, 47 Mich. 226; Whitney v. Village of Hudson, 69 Id. 189, 202. The resolution offered by Aid. Smith received but 14 votes, and did not prevail. It is unnecessary, therefore, to consider the veto power of the mayor, or the validity of the action taken at the special meeting held January 31.

The resolution of Aid. Johnson was not new business, in any sense. In any event, its only office was to redirect what had already -been ordered.

It is next urged that the direction given to the mayor, controller, and clerk was an illegal delegation of power. It is sufficient answer to say that, within two days after this bill was filed, those officers reported their action to the council, and the same was ratified and confirmed by-that body.

The,next objection is that the common council has not declared the construction of the bridges in question to be a necessary public improvement. Section 1 of title 6 of the charter provides that—

“The 'common council of the city of Saginaw shall have full power to lay out, open, widen, alter, close, fill in or grade, vacate or abolish, any highway, streets, avenues, lanes, alleys, public grounds, or spaces in said city, whenever they shall deem it a necessary public improvement.”

Section 2 is as follows:

“Whenever the common council shall deem any such improvement necessary, they shall so declare by resolution.”

The issue of these bonds is authorized by the act quoted at length in the Tillotson case, and by section 25 of title 5 of the 'charter, also quoted in that opinion. Title 6 relates to “Street and Public Improvements.” Section 15 provides that—

“The term 'public improvement/ as used in this act, shall be held and construed to include not only those set out and recited in the first section of this title, but the •stumping, ditching, and grading of all public streets, highways, lanes, and alleys, the construction of plank roads, the laying of pavements of wood or stone, including the crosswalks, flagging or macadamizing, with broken or pounded stone, of the streets or roadways of said city, the draining and filling of all the low lands and lots, and the general betterment of all streets, highways, lanes, alleys, parks, public places and grounds within said city.”

Title 5 relates to “ Taxes, Funds, Revenues, and Expenditures.”

The declaration of the necessity is made essential as preliminary to public improvements the cost, or any portion of the cost, of which is to be assessed upon the locality of the improvement. Title 6 contemplates that the cost, or a part of the cost, of the public improvements shall be assessed upon the locality, and it also contemplates that a portion of such cost may be paid from the city treasury. The charter does not contemplate that, before a tax shall be levied to provide the fund out of which the proportion of the cost to be borne by the city is to be paid, the necessity for the various improvements shall be first declared. Provision is made in the annual budget for these funds upon estimates, and without reference to particular improvements, and in the absence of any declaration of necessity for the improvements in which the moneys raised are to be expended. The right to raise, by tax or otherwise, the necessary funds for public improvements, is not conditioned by the charter upon a prior declaration of the necessity for the improvements.

It is next insisted that the consent of the Secretary of War to the construction of the bridges had. not been obtained; that the board of supervisors had not consented to the bridging of a bayou, which it was necessary to cross; and that the rights of way for the approaches to the bridges had not been obtained. It appears that measures had been taken to obtain the consent of the Secretary of War to the construction of the bridges in question, and on February 5, 1892, there had been sent to the city engineer, from the department at Washington, a communication as follows:

There are sent you herewith instruments in duplicate, indicating approval by the Secretary of War of the plans for three bridges to be built across Saginaw river on the extensions of Maple street, Court street, and Center street, in the city of Saginaw, Mich. When the conditions of these instruments have been accepted by the mayor of The city of Saginaw, please return all the copies to this office for completion by the Secretary of War.”

The' inclosures were formal instruments for execution by the city, and contained the following recitals and certificate:

“Whereas, by section 7 of an act of Congress, .approved September 19, 1890, entitled ‘ An act making appropriations for the construction, repair, and preservation of certain public works on rivers and harbors, and for other purposes/ it is declared that it shall not be lawful to construct, by virtue of legislative acts of the state, any bridge not already authorized by law over navigable waters of the United States wholly within the limits of said state, without the approval of the Secretary of War of the location and plans of such bridge;
“And whereas, the city of Saginaw, Michigan, has authority, under an act of the Legislature of the State of Michigan, to construct a bridge over the Saginaw river, on the extension of Court street, in said city and State, and has submitted a map of the location and plans of the same:
“Now, therefore, this is to certify that the map of location and plans of said bridge, which are hereto attached, have been approved by the Secretary of War, subject to the following conditions: That the engineer officer of the United States army in charge of the district within which the bridge is to be built may supervise its construction in order that said plans shall be followed.
“Witness my hand this--day of--, 1892.
“---, Assistant Secretary of War.
“ The conditions of this instrument are hereby accepted by the city of Saginaw, by--, its mayor, thereunto lawfully authorized, this--day of February, 1892.”

It further appears that in October, 1891, the board of supervisors of the county granted permission to construct the bridge in question across the Saginaw river, but in the petition to said board no mention was made of the Emerson bayou, although, to make the bridge available, it would necessarily have to cross the bayou. There are other bridges across the Saginaw river in this vicinity, and one bridge across the bayou; and, about 800 feet further up, two railroad tracks cross upon trestles. There are no docks south of the bridge, and the depth of water in the center of the bayou at the crossing point, according to soundings made in February, 1893, was less than four feet. The testimony tends to show that the water in the bayou has been gradually receding for years. The state of this record does not warrant the conclusion that this bayou at this point is “navigable for boats or vessels of 15 tons burden or more,” under the statute. How. Stat. § 495.

It will be observed that under the federal statute, in a case where the legislature of.a state authorizes the construction of a bridge over navigable waters wholly within the limits of such state, the approval by the Secretary of War of the location and plans of such bridge is made requisite, while in other cases permission to bridge is an essential prerequisite. Even though it be conceded that the approval of the Secretary of War was a condition precedent to the issuance of the bonds, the correspondence was, we think, a sufficient guaranty that the formal approval would follow the city's acceptance of the condition, to warrant the city's action.

Eespecting the approaches, one of the very objects of the issuance of the bonds was to provide the funds necessary to procure the rights of way and approaches.

The decree of the court below dismissing the bill is affirmed, with costs to defendants.

The other Justices concurred.

       Act No. 455, Local Acts of 1889.


text:
    James Barney v. William Love and Albert H. Schofield.

      Certiorari — Continuance—Conditions—Costs—Waiver—Contempt— Vacation of order — Attachment,
    1. Certiorari to review an order adjudging the petitioners guilty of contempt in refusing to pay the costs of a continuance is not a proper proceeding in which to raise questions relating to the taxation of said costs.
    2. In the absence of a prompt waiver by the moving party of a continuance of a case, the order therefor must be regarded as absolute, and the clause respecting the payment of costs as indicating the terms upon which the continuance is granted, the words used being treated as words of agreement, rather than of condition.
    3. The party in whose favor costs are granted on the continuance of the case may, on the refusal of the opposite party to pay the same, move either to vacate the order granting the continuance or for an attachment.

      Certiorari to St. Clair. (Vance, J.)
    Submitted on briefs April 27, 1894.
    Decided September 25, 1894.
    Defendants bring certiorari to review an order adjudging them guilty of contempt in refusing to comply with an order of the court requiring the payment of costs as a condition to a continuance.
    Writ dismissed.
    The facts are stated in the opinion.

      John M. Kane and Thomas Wellman, for petitioners. ■

      Northup & O’Donnell, for plaintiff.

       See Circuit Court Rule No. 56, which provides that “ when a rule, order, or continuance is granted upon payment of costs, such costs, on being taxed, shall be paid on demand of the party, his agent or attorney; and if not so paid, on affidavit of the fact, .such rule, order, or continuance may be vacated, or the court may grant an attachment therefor, with the accruing costs.”

   McGrath, C. J.

A term of the St. Clair circuit court commenced April 3, 1893. This cause was regularly on the jury docket for that term. On May 10 defendants applied for a continuance, and the court granted an order—

That said cause be continued for trial until the next term of this court, upon condition that said defendants pay to the said plaintiff all legal costs he has incurred for the present term, including an attorney fee of 85, on taxation thereof.”

On the same day, plaintiff served upon defendants* counsel a bill of costs, with notice for the taxation thereof for May 13. On that day defendants appeared, and the costs were taxed. Thereupon defendants moved the court for a retaxation. On May 22 the court affirmed the taxation made by the clerk. On May 23 a demand for the payment of the costs as taxed was made upon defendants. On July 17, the costs not having been paid, affidavits of the fact were made, upon which an order to show cause was afterwards issued, and on October 3 the court found defendants guilty of a contempt of court, and ordered them into custody. Application was afterwards made to' vacate the order last aforesaid, which was denied.

We do not regard this as a proper proceeding in which to review the questions relating to the taxation of costs.

The contention of the defendants is that the order for thp continuance was not absolute, but was conditional, and that, upon refusal to pay the costs, plaintiff had the right to proceed. The defendants cannot be heard now, after the lapse of 13 days, during all of which time their acts indicated an acceptance of its terms, to insist that the order was a conditional one. Plaintiff was in readiness for trial. Defendants applied for a continuance, which was granted on payment of costs. It was defendants' duty to then waive the continuance, if they did not desire it upon the terms suggested. It is not enough to say that the court was still in session May 23. Defendants had accepted notice of taxation of costs without question. Plaintiff was justified in assuming that the terms had been accepted. The costs to which plaintiff was entitled were costs as of that date. He was not entitled to tax the fees of witnesses detained after that date.

In the absence of a prompt waiver of the continuance, the order therefor must be regarded ’ as absolute, and the clause respecting the payment of costs as indicating the terms upon which the continuance was granted. The words used must be treated as words of agreement, rather than of condition. Pugh v. Kerr, 5 Mees. & W. 167; Horton v. Improvement Co., 7 Exch. 911; Gilliland v. Rappleyea, 15 N. J. Law, 138; Fenn v. Railway Co., 76 Tex. 380. In such case the party in whose favor the costs are granted has the choice of remedies, and may move either to vacate the order or for an attachment. In Henderson v. Circuit Judge, 40 Mich. 244, the party upon whom the costs had been imposed promptly waived the continuance, rather than pay the costs.

The writ must therefore be dismissed, with costs.

The other Justices concurred.