text:
    ENGLE v. ENGLE.
    1. Specific Performance — Oral Contract for Conveyance of Land — Must Be Clear and Complete.
    A court of equity will not grant specific performance of an oral contract to transfer real estate unless the terms of the contract are clear and complete so that no reasonable doubt can exist respecting the enforcement of it according to the understanding of the parties.
    2. Same — Contracts—Evidence—Sufficiency.
    In a suit for specific performance, evidence examined, and held, sufficient to establish the making of the contract as claimed by plaintiff, viz., that he was to have a farm belonging to his father’s estate, and defendant, his brother, was to have the personalty.
    3. Same.
    Evidence held, sufficient to establish the fact that defendant wife was a party to the agreement and gave her assent thereto.
    4. Same — Inadequacy of Consideration — Fraud.
    While specific performance of an oral contract to convey land rests in the legal discretion of the court, a court of equity should not decline to grant it because of inade- • quacy of consideration or because it is unfair and inequitable, unless its enforcement will operate as a fraud upon the rights of defendants.
    5. Same — Division of Inherited Property by Agreement Favored by Courts.
    Compromises and divisions of property thereby reached after the death of a parent are favored by courts of equity.
    6. Same — Inadequacy of Consideration — Knowledge of Value— Fraud.
    Where defendants, in agreeing to deed to plaintiff a farm belonging to the father’s estate, while they were to take the personalty, were in no way deceived as to the inadequacy of the part of the estate they agreed to accept when compared with the whole, and said division was assented to for more than two years, specific performance will not be refused on tbe ground of inadequacy of consideration.
    7. Same — Frauds, Statute of — Oral Contract for Conveyance of Land — Part Performance — Proof—Sufficiency.
    Proof that defendants took possession of tbe personalty and converted it to tbeir own use, and that plaintiff took possession of tbe farm, put in crops, and made considerable improvements thereon, in pursuance of said contract, held, sufficient as to part performance to relieve from the effects of the statute of frauds under the rule applicable thereto.
    Appeal from Kent; McDonald (John S.), J.
    Submitted January 21, 1920.
    (Docket No. 53.)
    Decided February 27, 1920.
    Bill by William Engle against Eugene Engle and another for the specific performance of a land contract. Defendants filed a cross-bill for an accounting. From a decree for plaintiff, defendants appeal.
    Affirmed.

      C. Sophus Johnson and M. Thomas Ward, for plaintiff.

      Smedley & Linsey and Roland M. Shivel, for defendants.
   Sharpe, J.

The trial judge filed an opinion, in which he stated the facts in dispute and his conclusions thereon as follows:

“The object of this bill is to enforce specific performance of a parol agreement by the heirs for the division of an estate. The plaintiff, William Engle, and the defendant, Eugene Engle, were the sole heirs-at-law of John Engle, who died in January, 1916. The defendant, Jennie Engle, is the wife of Eugene. The plaintiff claims that after the father’s death he and his brother Eugene Engle and Jennie Engle made an agreement as to the division of the property, which consisted of real estate and personal property. That "by the terms of this agreement plaintiff was to have a conveyance of the real estate, and defendant was to have the personal property. That in pursuance of the agreement he went into possession of the land, cleared up twelve acres and made other improvements, and paid the taxes from year to year. That the defendant Eugene Engle took possession of the personal property, consisting of grain, money and stock, and has sold or disposed of the greater part of it. That thereafter trouble arose between the brothers and defendant’s wife refused to sign the deed conveying her dower interest in the real estate.
“The defendants deny that Jennie Engle was a party to any contract between her husband and William. They claim that when the father died he was indebted to Eugene in the sum of eleven hundred dollars, and that a part of the consideration for the deed of the real estate to William Engle was that he was to pay Eugene one thousand dollars of this indebtedness. Defendants also claim that the contract for the division of the estate was procured through fraud and coercion on the part of William. They admit that he has had possession of the farm since 1916, and in their cross-bill ask for an accounting.
“In my judgment, the testimony clearly establishes the fact that the contract was made as plaintiff claims. That is, that Jennie Engle was a party to it, and that he was to have the real estate and the defendants the personal property. It is also clear that no fraud or coercion was used in procuring the contract.”

He concluded that there was such part performance of the oral agreement as rendered it enforceable, and decreed specific performance thereof. The defendants appeal. It is their claim:

(1) The contract is not clearly proven.

(2) Specific performance cannot be decreed as against defendant Jennie Engle.

(3) The contract as claimed is unequal and unreasonable, and specific performance is clearly inequitable.

(4) There was no consideration to support the contract.

(5) There was no sufficient performance to relieve from the effect of the statute of frauds.

1. Counsel are agreed that a court of equity will not grant specific performance of an oral contract relative to the transfer of real estate unless the terms of the contract are clear and complete so that no reasonable doubt can exist respecting the enforcement of it according to the understanding of the parties.

The defendant Eugene admits that such a contract was made between him and William. They only differ in whether William was to pay him $1,000 of the indebtedness of $1,100 he claims his father owed him at the time of his decease. About two weeks after the father’s death, William signed a petition to the probate court, asking that Eugene be appointed administrator of the estate. On May 22, 1916, an inventory was filed by- Eugene as administrator, in which he listed the real estate, valuing the same at $4,000, and stated that the value of the personal property, not listed, was $1,000. Appended to this inventory, and signed by both Eugene and William, was the following:

“We, Eugene Engle and William Engle, the only heirs in the above estate, agree to the foregoing inventory and request that it be accepted as the appraisal in this estate, as we desire to divide the property between us by mutual agreement.”

Judge Higbee, of the probate court, testified as •follows:

“Q. Did they come to you with reference to a settlement of the estate of John Engle, deceased?
“A. Yes.
“Q. Was there some agreement made between the two brothers as to a division and settlement of that estate ?
“A. They told me they had made an agreement.

“Q. What did they tell you the agreement was ?

“A. Why, it seems that there was some one piece of property that had been deeded in the lifetime of their father in escrow to one of them. The one to whom this farm had been deeded was to receive the personal property, and the other was to receive the real estate of which the father died seized! They asked me what would be necessary to carry their agreement into effect. I told them that the estate of their father would have to be probated, and that after the order assigning the residue had been made to the two heirs, that then they could carry out any agreement between' themselves that they saw fit, and they were particularly anxious to know what it would cost. I told them that if it were a matter that was perfectly agreeable between them, the only expense would be the publication fees and a copy of the order assigning the residue, probably around five dollars.
“Q. Is that the substance of your entire conversation?
“A. Yes; it took much longer than I am telling. They were there, I think, oh, an hour or so, perhaps.”

On cross-examination, he was asked:

“Q. Do you know what the son Eugene claimed was due from the estate of his father?
“A. There was no talk of that, at least when this proceeding was talked of, none originally when they first came in. I never heard anything of it.
“Q. Don’t you recall that Eugene claimed that he had $1,100 due from the estate that his father owed him?
“A. No, I do not.”

Robert E. Springett, an attorney at Lowell, who prepared the inventory and the note appended thereto, testified that the brothers came to him after their father’s death and talked about the division of the estate and the agreement they had made as to how the property was to be divided. On being asked to give the substance of this conversation, he said:

“There was certain land that Will was to have, and Gene was to have the personal property.”

It further appears that Eugene filed his final account on October 8, 1918, in which he charged himself with receipts from personalty, $871.18, and disbursements of $14.80. William at this time gave Eugene the following receipt:

“Grand Rapids, Mich., October 8, 1918.
“Received of Eugene Engle, administrator of the estate of John Engle, deceased, one dollar and other property in full of my share of the estate, in full settlement of all claims against said administrator, and I do hereby consent to his discharge as such administrator.
“William Engle.”

The probate judge then made an order, reciting that all debts, etc., had been paid and that the 136 acres of real estate remaining be assigned to Eugene and William, each an undivided one-half thereof.' Following this, John Dalton, the register of probate, prepared a deed from Eugene and his wife to William of the 136 acres. In answer to a question, Dalton said:

“Eugene took the deed. As regards the deed, the substance of the conversation was that Eugene was to take the deed and have his wife sign it.”

As to this deed, Eugene testified:

“Q. Now, you took that deed home to have it signed?
“A. Yes, sir.
“Q. Had you had your thousand dollars then?
“A. No, sir.
“Q. And still you took that deed home to get your wife to sign it, didn’t you?
“A. I took the deed, yes.
“Q. And you were not going to get your thousand dollars then, either, were you?
“A. Why, no; I couldn’t get nothing from him.
“Q. And still you took the deed and agreed at that time?
■ “A. I couldn’t get nothing from him.
“Q. And you agreed at that time to give him the deed?
■ “A. Well, I was going to let him have it; there was no agreement made.”

Several other witnesses testified as to statements made by Eugene and his wife that he was to have the personalty and William the farm. We cannot but find beyond a reasonable doubt that the terms of the contract as claimed by the plaintiff were specifically agreed upon between Eugene and himself.

2. Was Jennie, the wife of Eugene, a party to such agreement? Both she and her husband testified that, she never assented to the agreement for a division of the property as claimed by plaintiff. Henry Parker, John Aussiker, and Edwin F. Straub all testified that Jennie said to them that Eugene was to have the personalty and William the farm. Jennie admits that Eugene and William talked in her presence about the division of the property, and she claims that William used insulting language toward her when she made some suggestion concerning it. On cross-examination, she said:

“Q. You knew that Eugene and Will had come down here to settle up this estate, on October 8, didn’t you?
“A. Yes, sir.
“Q. Eugene came home and he had that deed in his pocket, didn’t he?
“A. Yes, sir.
“Q. Now, hadn’t you heard about the division of the property like that before October 8 ?
“A. That Eugene was to have the money and the personal property.
“Q. Eugene was to have his money and the personal property, and Will was to take the real estate?
“A. Yes, sir.
“Q. That was the agreement, wasn’t it?
“A. Yes, sir.
“Q. And that is the way you understood it?
“A. Yes, sir. * * *
“Q. Yes, and you knew the whole deal, didn’t you?
“A. Yes, sir.”

She also testified that she knew plaintiff was living on the farm and had cleared some of the land and was working it and that her husband had put in some crop there of which plaintiff was to receive a part. We feel constrained to agree with the trial judge that this defendant yielded her assent to the contract as made between these brothers and that the acts of part performance on the part of both of them were in reliance thereon. The action of her husband after the estate was closed in submitting the deed to her for her signature is strongly confirmatory of his understanding of the matter.

3, 4. Was the consideration so grossly inadequate and the contract so unfair and inequitable that specific performance should not be decreed? The right to such relief is within the legal discretion of the court, but a court of equity should not decline to grant it for either of the reasons stated unless the facts justify the conclusion that enforcement of the contract will operate as a fraud upon the rights of the defendants. As was said in VanNorsdall v. Smith, 141 Mich. 355:

“Mere inadequacy of consideration, not accompanied by other elements of bad faith, is not a sufficient ground for rescission of a contract or for refusing specific performance of it, unless so excessive as to furnish satisfactory evidence of fraud. Fraud is always a sufficient ground for refusing specific enforcement, and inadequacy of consideration may be, with other facts and circumstances, convincing evidence of fraud.”

Eugene became the owner, by the delivery of the deed deposited in escrow, of one of his father’s farms at his death. While it is his claim, and there is nothing in the record 'to dispute it, that he had furnished the money with which the father purchased this farm, the fact that he had it, and William none, may have had much influence over the minds of defendants in concluding to make the division as agreed upon. Compromises. and divisions of property thereby reached after the death of a parent are favored by courts of equity. While under the proofs it is apparent that the defendants agreed to part with their interest in this real estate for much less than its fair value, it is. also apparent that they were in no way deceived, as to the inadequacy of the part of the estate they agreed to accept when compared with the whole. The division was assented to for more than two years, and we cannot but conclude from a reading of the record that it would have been carried out but for the advice of others. We have examined the many authorities cited by counsel for defendants. We do not find them controlling where an amicable arrangement is made by the heirs of an intestate as to a division of his property. Frequently, the apparent necessities of one heir cause the others to conclude that he should as a matter of fairness, not of legal right, receive a greater share than the others. This was a matter of family arrangement, and, as the defendant Eugene was willing to carry it out when the deed was prepared in 1918 and submitted the deed to effectuate such purpose to his wife, we do not think specific performance should be refused for the reasons stated.

5. Was there sufficient part performance? After the agreement was made,' Eugene took possession of, and converted to his own use, practically all of the personalty. William took possession of the farm, put in crops, and made considerable improvements thereon. These facts the defendants concede by asking for an accounting and division in that part of their answer in the nature of a cross-bill.

We have not overlooked the claim of defendants that William was in possession before the oral contract was made and that his possession was that of a co-tenant in common with Eugene. But Eugene admitted that he worked a part of the land on shares, giving William one-half of the product, and that William made no accounting to him for that which he worked. He also admitted that the improvements made oy plaintiff were substantial and added somewhat materially to the value of the property. We find the proofs as to part performance ample to relieve from the effect» of the statute under the rule applicable thereto.

The decree rendered is affirmed, with costs to plaintiff.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Bird, JX, concurred.


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    PEOPLE v. STURMAN.
    1. Criminal Law — Stolen Property — Identification.
    In a prosecution for receiving stolen property, where, on direct examination, the complaining witness testified that he could identify Exhibit “A,” a case or box of cigarettes as his, which had; been stolen from him, but on cross-examination he admitted he could not identify the cigarettes that were in the box because they were similar to-other cigarettes of like brand, a motion to strike was. properly denied, since he might be able to identify the case or box and yet be unable to identify the cigarettes.,
    2. Same^-Appeal and Error — -Hearsay — Failure to Object — - Saving Questions for Review.
    The Supreme Court, on error, will not consider a complaint based 'on the testimony of complaining witness that he-knew the cigarettes were his because the man who stole them told him they were, where no objection appears of record, and no motion to strike the same was made.
    3. Same — Voluntary Action — Waiver.
    Although defendant could not have been compelled to write his name and that of his supposed alias for the purpose of comparison with certain checks claimed by the prosecution to have been given in payment for the stolen cigarettes and cashed by him, where he did so voluntarily, held, that he waived his rights therein.
    4. Same — Statutory Rights — Waiver.
    Such waiver of defendant’s right to refuse to sign his name, held, not a waiver of his right to object to the comparison with said checks under 3 Comp. Laws 1915, § 12539.
    5. Same.
    The withdrawal of defendant’s objection to the examination of the witness called to compare defendant’s handwriting with that on the canceled checks, after the prosecution had laid the proper foundation for his qualification as an expert, and defendant’s failure to interpose his right to have such comparison excluded under 3 Comp. Laws 1915, § 12539, held, to be a waiver of his rights thereunder.
    6. Same — Witnesses — Handwriting Expert — Qualifications — ■ Sufficiency.
    Testimony by a witness called as an expert on handwriting that he had been working as a bookkeeper in a bank for five years, and that in his duties he compared 400 or 500 signatures daily, held, sufficient to qualify him as an expert.
    Error to recorder’s court of Detroit; Wilkins (Charles T.), J.
    Submitted January 15, 1920.
    (Docket No. 104.)
    Decided February 27, 1920.
    Abraham Sturman was convicted of receiving stolen property, and sentenced to imprisonment for not less than 2% nor more than 5 years in the State prison at Jackson.
    Affirmed.

      Doyle & Cameron, for appellant.

      Alex. J. Groesbeeh, Attorney General, Matthew H. Bishop, Prosecuting Attorney, and Van H. Ring, Assistant Prosecuting Attorney, for the people.
   Bird, J.

An information was ¿filed in the recorder’s court in.the city of Detroit, charging the defendant and one Nathan Rifkin with having received and concealed 360,000 Camel cigarettes, knowing the same to have been stolen. Defendant demanded, and had, a separate trial at which he was found guilty. It appears by the record that one August Quandt, a wholesaler of tobaccos in the city of Detroit, lost, by burglary, from his place of business on the night of December 19, 1917, 36 cases containing 360,000 Camel cigarettes, the market value of which was $1,701. That a day ,or so thereafter defendant, under the alias of J. Rubin, sold to one Schurgin, a retailer of tobacco, the same number of cases of Camel cigarettes for a consideration of $1,260, which Schurgin paid for by four -checks. The checks bore different dates. Two of them were cashed and payment was stopped on the other two. It is the claim of the people that the two checks which were cashed were endorsed as J. Rubin by defendant. Schurgin- learning that the cigarettes had been stolen stopped payment on the other two checks, whereupon all the cigarettes remaining unsold were taken away by defendant and his partner, Rifkin. Subsequently they were found and seized by the, officers at the house of one McGraw. McGraw and Schneider, alias Kelly, were then arrested for stealing them. It does not appear by the record what the result of the proceedings against them was, but it is stated in defendant’s brief that proceedings were taken against them in the police and recorder’s court upon the charge of having stolen the property from the business place of August Quandt.

The defense of defendant was that he sold them on a commission for Schneider, alias Kelly, and that he had no knowledge they were stolen. The proofs, however, upon the part of the prosecution showed that the defendant admitted he purchased them from Schneider for $900.

1. The first point raised is that the cigarettes seized at McGraw’s house were not properly identified as the cigarettes which were stolen from Quandt. For the purpose of identifying the cigarettes, Quandt was interrogated as follows:

“Q. Did you see your property later, Mr. Quandt?
“A. Yes, a good part of it.
“Q. Whereabouts?
“A. Well, police headquarters some of it, and some of it at the police barns on Fort street, east.
“Q. I will ask you to step down, Mr. Quandt, and tell us whether you recognize this case we will call Exhibit ‘A.’?
“A. Yes, I do recognize it.
“Q. What does it contain?
“A. Camel cigarettes. ■
“Q. Whose cigarettes are they?
“A. Mine.”

Witness then testified that he knew the cigarettes were his because he was told by the man who stole them. Upon cross-examination the witness testified:

“Q. Have you yourself any means .of identifying these cigarettes in this box, if this box contains cigarettes, as being your property?
“A. No, sir. There is no difference from lots of other Camels.
“Q. You yourself could not possibly identify the contents of this box, if it contains cigarettes, as being your cigarettes?
“A. No, sir.
“Q. The only reason why you say these are your cigarettes is because some man told you they were yours?
“A. Yes. Somebody did steal 36 boxes of cigarettes from my place of business. I received back 160,000 of them. The remainder of 200,000 are still out of my possession.”

During the taking of this testimony much controversy was interspersed by court and counsel, the contention of defendant’s counsel being that the testimony was not admissible, because he had no basis for his conclusion. No formal objection to the testimony appears on the record, but subsequently, when the people rested, counsel moved as follows:

“I move, if your honor please, that his testimony— that question and that answer wherein he was asked whether these were his cigarettes, and the answer that they were, be stricken out as based upon hearsay and being a conclusion.”

It will be noted that the precise inquiry made of the witness was whether he could identify exhibit “A” which was a case or box, and he replied he could. In reply to defendant’s counsel he frankly admitted he could not identify the cigarettes that were in the box because they were similar to other cigarettes of like brand. He might very well be able to identify the case or box which contained the cigarettes and yet be unable to identify the cigarettes for the reason that the cases or boxes had been in his own store, and he had seen them since they were stolen while in the possession of the officers. For this reason the motion to strike out was properly denied. Further complaint is made in this connection of the testimony of Quandt that he knew they were his cigarettes because the man who stole them told him they were. As no objection appears of record, nor is it included in the motion to strike out, we will not consider it. People v. Martin, 208 Mich. 109. We think the testimony bearing on the identity of the cigarettes taken as a whole was sufficient to support the finding of the jury.

2. It was the theory of the prosecution that J. Rubin was an alias of defendant, and that he received and indorsed the checks which were given him for the cigarettes -and which were made payable to J. Rubin. It was the claim of defendant that J. Rubin was an alias of Schneider, one of the parties indicted for stealing the cigarettes. Upon cross-examination defendant denied that the indorsements on the checks were his own. The prosecution, in an attempt to show that the indorsement was his, asked him to write his name on a piece of paper and directly under it the name of J. Rubin. Defendant, without objection, complied with this request. The prosecution then called an expert and showed that, in his opinion, the name of “J. Rubin” on the checks, and the signature of “J. Rubin” on the paper were written by the same person. Complaint is made of this testimony because the comparison of the signatures was incompetent and because Mr. Hampel did not qualify as an expert. Counsel, to support his argument in this court, cites the following statute, but did not call it to the attention of the trial court:

“Whenever in any suit or proceeding in any of the courts of this State, it shall be necessary or proper to prove the signature or the handwriting of any person, it shall be competent to introduce in evidence for the purpose of comparison, any specimen or specimens of the handwriting or signature of such person, admitted or proved to the satisfaction of the court to be genuine, whether or not the paper on which such handwriting or signature appears is one admissible in evidence or connected with the case dr not: Provided, That if such paper is not one admissible in evidence for some other purpose, or connected with the case, it shall not be admissible in evidence for the purpose of comparison unless it was made before the controversy arose concerning which such suit or proceeding was brought.” 3 Comp. Laws 1915, § 12539.

Quite likely it would have been error to compel the witness, against objection, to make the signatures he did. (First National Bank v. Robert, 41 Mich. 709), but we see no occasion for holding it reversible error, when it was done voluntarily and without any objection upon his part, or upon the part of his counsel. But this does not dispose of the question. Defendant could, if lie chose, waive that right without waiving the right to have the paper excluded under the proviso of the statute. When the witness Hampel was recalled for the purpose of comparing the signatures on the checks with those made by defendant in court, counsel objected that the witness had not qualified as an expert. The suggestion of the court to lay a proper foundation was followed and the trial court announced that the witness might answer. Hampel was then asked his opinion as to whether the indorsement of J. Rubin on the checks and the signature “J. Rubin” as made by the defendant were made by the same party. The witness then answered:

“A. Do I understand that the man that wrote Abraham Sturman on this exhibit ‘D’ wrote ‘J. Rubin’ also?
“Counsel for Defendant: Just a moment. ' I object to that, if the court please. That is not theques- “ tion he was asked.
“(Question read by reporter.)
“A. Exhibit T>’ is the paper written here by Mr. Sturman.
“Counsel for Defendant: That is not right. I did not understand the question that way, if the court please.
“The Court: Then your objection is withdraWn?
“Counsel for Defendant: Yes.”

This left the question to be answered without objection. Under these circumstances we must hold that by not interposing an objection his right under the statute to have the paper containing his signature excluded for the purpose of comparison was waived. This conclusion makes further construction of the statute unnecessary.

3. The further question is raised that the witness Hampel did not show himself qualified as an expert on handwriting. The witness testified that he had been working for the Detroit Savings Bank for five years in its- bookkeeping department. That in his duties he compared 400 or 500 signatures daily, and that he was familiar with various types of handwriting. In view of this testimony the trial court did not err in permitting the witness to testify as an expert.

We are of the opinion that a case was made for the jury and that the trial court was in no error in refusing a new trial on the ground of newly-discovered evidence.

The judgment of conviction is affirmed. .

Moore, C. J., and STEERE, Brooke, Fellows, Stone, Clark, and Sharpe, JJ., concurred.


text:
    CITY COMMISSION OF THE CITY OF JACKSON v. VEDDER.
    1. Municipal Corporations — Bonding Limits — Legislative Question — Constitutional Law — Statutes.
    Under the Constitution (Art. 8, §§ 20, 21) authorizing the legislature to provide by a general law for the incorporation of cities and to restrict their powers of borrowing, the question of the bonding limits of cities is a legislative one over which they have no control except as provided-in the enabling act.
    2. Same — Jackson Charter — Automatically Controlled by General Act.
    Where the general law (Act No. 294, Pub. Acts 1909) under which the city of Jackson was incorporated was amended by Act No. 5, Pub. Acts 1913 "(1 Comp. Laws 1915, § 3307), amending the requirement for changing the bonding limits of a city from a two-thirds vote of the electors voting thereon to a three-fifths vote, the charter of said city was , automatically changed thereby, and a three-fifths vote held, sufficient to authorize the raising of the bonding limit of said city from three per cent, of the assessed valuation to five per cent.
    Certiorari to Jackson; Parxinson (James A.), J.
    Submitted January 27, 1920.
    (Calendar No. 29,087.)
    Decided February 27, 1920.
    Mandamus by the city commission of the city of Jackson to compel Clifton H, Vedder, city clerk, to countersign and to deliver to the city treasurer certain sewer bonds. From an order granting the writ, defendant brings certiorari.
    Affirmed.

      W. S. Cobb, for appellant.

      Lyman B. Trumbull, for appellee.
   Bird, J.

A writ of mandamus was asked of the trial court to compel defendant to countersign and deliver to the city treasurer certain sewer bonds, which, it is claimed, had been authorized by a vote of the people. The trial court granted the writ and the proceedings are here on certiorari at the instance of defendant. The proceedings show that when the city of Jackson adopted its present charter in 1914 its bonding limit was three per cent, of its real and personal property. The new charter provided that:

“The bonded indebtedness in the city shall not at any time hereafter exceed three per cent, of the real and personal property therein, according to the assessed valuation thereof, unless such limit shall be raised or lowered by a two-thirds vote of the electors voting on the question at a regular or special election.”

In November, 1919, an amendment to this section was proposed and voted upon to change the limit from three per cent, to five per cent. This proposition carried by a three-fifths majority vote, but fell short of a two-thirds majority vote. The failure to secure a majority of two-thirds of those voting thereon is the defendant’s reason for refusing to countersign and deliver the bonds.

The question, therefore, presented is whether the proposed amendment to increase the bonding limit from three per cent, to five per cent, received the necessary majority to make it operative.

The Constitution of 1908 provides that:

“The legislature shall provide by a general law for the incorporation of cities, and by a general law for the incorporation of villages; such general laws shall limit their rate of taxation for municipal purposes, and restrict their powers of borrowing money and contracting debts.
“Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter, and, through its regularly constituted authority to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this State;” Article 8, §§ 20, 21.

In obedience to this mandate, the legislature at its session in 1909 enacted laws for the incorporation of cities and villages, and in the city act provided that:

“Each city may, in its charter, provide: * * * For borrowing money on the credit of - the city, in a sum not to exceed eight per cent, of the assessed value of all real and personal property in the city: Provided, That in cities where the amount of money which may be borrowed is now limited by law, such limit shall continue until it shall be raised or lowered by a two-thirds vote of the electors voting on the question at a general or special election.” * * * Act No. 279, Pub. Acts 1909, § 4.

Act No. 5 of the Public Acts of 1913 (1 Comp. Laws 1915, §§ 3307) amended this section so as to read “by a three-fifths vote” instead of a two-thirds vote.

Under these constitutional and legislative nrovisions the cities have the right to determine what the bonding limit shall be up to eight per cent, of the valuation of their real and personal property, but they have no right to prescribe the mode or manner of raising or lowering the bonding limit. That question is a legislative one over which the cities have no • control. The legislative act which followed these constitutional' provisions does not delegate to the cities the right to prescribe the mode and manner of raising or lowering the bonding limit. It is true, the Jackson charter contained the provision requiring a two-thirds vote, but this was not inserted therein by the framers of the charter, by reason of any judgment or discretion which they exercised, but it was inserted therein because it was a legislative requirement. Had the charter provided the bonding limit might be raised or lowered by any different vote than that prescribed by the statute, it obviously would have been of no force. Or had the charter been silent as to the requisite majority, and this controversy had arisen, a construction of the charter would have required us to read Info it the legislative provision. This being true, when the legislature amended the act by requiring a three-fifths vote instead( of a two-thirds vote, the amendment was automatically read into the. charter, and is now a part of it.

It appearing by the record that'the proposed amendment raising the bonding limit to five per cent, carried by a three-fifths vote, it must be declared valid and in operation. The trial court made the proper order and it will be affirmed. We will follow our rule to allow no costs in proceedings affecting the public interest.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Sharpe, JJ., concurred.


text:
    EMERY v. THE OCEAN ACCIDENT & GUARANTEE CORPORATION.
    1. Insurance — Burglary Insurance — Nonjoinder of Parties.
    .In an action on a policy of burglary insurance by one of several parties named as assured, where plaintiff was the sole owner of the property stolen for which recovery is sought, defendant’s contention that plaintiff could not recover because of nonjoinder of the other parties assured, held, properly overruled, since the policy, although in form a joint one, was evidently intended to cover the several as well as joint property of the parties, as evidenced by the provision that “the release of either the assured or the actual owner of the property shall relieve the corporation from all further liability.”
    2. Same — Splitting Cause of Action.
    Where plaintiff was the sole owner of the property insured, was entitled to enforce the whole claim, and her recovery will relieve defendant from further liability therefor, her action without joining the other parties assured, held, not a splitting of the cause of action.
    3. Same — Special Defenses — Notice —Pleading—Amendments— Abuse of Discretion.
    In said action, where the defense of failure to give immediate notice as required by the policy was not pleaded, the denial of a motion to amend in this respect after the proofs were closed and the witnesses dismissed, held, not an abuse of discretion.
    4. Same — Evidence—Sufficiency.
    Evidence held, sufficient to support an inference that the property insured had been stolen.
    5. Trial — Evidence—Inconsistent Testimony fob the Jury.
    Where the testimony of a witness is inconsistent, the question as to which statements should be given credence is for the jury.
    6. Insurance — Circumstantial Evidence — Sufficiency.
    Where there was nothing in a burglary insurance policy to the contrary, circumstantial evidence establishing the fact that an insured article had been stolen, held, sufficient.
    On several and joint property covered by burglary and theft insurance, see notes in 46 L. R. A. (N. S.) 564; L. R. A. 1918B, 565.

      Error to Kalamazoo; North (Walter H.), J., presiding.
    Submitted January 7, 1920.
    (Docket No. 20.)
    Decided February 27, 1920.
    Assumpsit by Elma L. Cahill-Emery against The Ocean Accident & Guarantee Corporation, limited, on a policy of burglary insurance. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Alfred J. Mills, for appellant.

      Harry C. Howard, for appellee.
   Bird, J.

Plaintiff resides in the city of Kalamazoo with her husband and family. On November 16, 1916, Ralph Emery, her husband, took out a policy of insurance in the defendant company in which it agreed, in consideration of certain premiums then paid, to indemnify the assured against direct loss by burglary, theft or larceny of their personal property of the class described in a schedule annexed thereto, up to the amount of $1,000. Plaintiff was included among those named in the policy as the assured.

•In the fore part of June, 1917, plaintiff lost a diamond pin of the value of $750. She became satisfied, on June 9th, that it had been stolen, and soon thereafter the local agent of the company was notified of the loss. The defendant investigated the circumstances attending the loss, but, after doing so, refused to pay the claim on the ground that while the pin appeared to “be missing” the proofs were not sufficient to establish that it had been stolen. Persisting in its refusal to pay, plaintiff brought this suit to enforce her claim, and a jury awarded her the full amount of it.

1. Defendant argues that no recovery can be had in this suit because of the nonjoinder of the other parties mentioned with her as assured in the policy.

The persons named as assured in the policy are Ralph Emery, Elma Cahill-Emery, Lee H. Cahill and Margaret Cahill Hazelton, and the dwelling in which they reside is described as 421 W. South street, Kalamazoo, Kalamazoo county, Michigan. The contract, in part, is as follows:

“The Ocean Accident & Guarantee Corporation * * * hereinafter called ‘the corporation,’ in consideration of the payment of the premium specified herein, and of the statements in the schedule forming a part hereof * * * agrees to indemnify the assured for direct loss by burglary, theft or larceny of any property of the assured described in the schedule hereinafter given and stated to be insured hereunder, occasioned by its felonious abstraction from the inferior of the house, building, apartment or rooms actually occupied by the assured, and described in said schedule and hereinafter called ‘the premises,’ by any domestic servant or employee of the assured, or by any other person or persons excepting any person whose property is insured hereunder, and for direct loss by damage to said property and to the said • premises caused by burglars or thieves.
“It is understood and agreed that for the purposes of this insurance, property belonging to any permanent member of the household of the assured who does not pay board or rent, except domestic servants or other employees, or property belonging to a relative of the assured permanently residing with him, is deemed to be the property of the assured. In the. event of claim for loss of such property the release of either the assured or the actual owner of the property shall relieve the corporation from all further liability.”

While the policy in form is a joint policy we think it was obviously the intention of the parties that it should cover the several property as well as the joint property of the assured. Without doubt the suit would have been properly planted had it named as plaintiffs all of the assured. Graves v. Insurance Co., 82 Iowa, 637 (49 N. W. 65). But we can see no legal or valid reason why Mrs. Emery cannot recover as plaintiff, inasmuch as it is conceded that she .was the sole owner of the pin, and since it is expressly agreed in the contract that a release from her “shall relieve the corporation from all further liability.” This view finds support in the following:

“Ordinarily one of two beneficiaries in an insurance policy cannot maintain an action to enforce the policy without making the other a party, especially where they are jointly insured, but where a policy of insurance covers property owned in severalty by two persons insured, one of the owners may maintain an action in his own name to recover for- a loss affecting his portion of the property, or both may join and recover the full loss.” 14 R. C. L. p. 1425.

This doctrine was applied in the case of Beebe v. Insurance Co., 98 Mich. 514 (18 L. R. A. 481). In that cáse plaintiff brought suit upon two fire insurance policies to recover for a loss. In one of the policies Sophia Webb was named with her as the assured, but none of her- property was destroyed. Objection was made there, as here, that plaintiff Beebe should have joined Sophia Webb as a co-plaintiff. In answering that contention this court said:

“It appeared in the findings of the court that no part of the property belonging to Sophia Webb'was destroyed by fire. The property covered by policy No. 1,441 belonged partly to the plaintiff and partly to Sophia Webb, each owning in severalty their respective shares, although the property thus secured was commingled and used in common by them for farming purposes. * * * It is evident that, if the property of both of the insured under this policy had been destroyed by fire, a joint action could have been brought by them, and the proceeds of the judgment afterwards apportioned between them according to their respective interests in the property. Castner v. Insurance Co., 46 Mich. 18.
“In the above case it was said:
“ ‘When the entire property belongs to the persons insured, it can mate no necessary difference to the insurer in what way their interests are apportioned. If they deem it material, they should inform the applicant before accepting his money.’
“In the present case, much more clear is it that the insurer should not take advantage of this fact, for the reason that Mr. Morris, the agent, was fully informed where the title rested, and had assured the plaintiff that her interests were fully protected under the policies * * * Each owned in severalty and they were the absolute owners of it.”

To hold that plaintiff has a right, as plaintiff, to maintain this suit will not result in splitting the cause of action. She was the sole owner of the property. Therefore, she is entitled to enforce the whole claim, and in the event that she succeeds in having her judgment affirmed by this court, her satisfaction of the judgment will relieve the corporation from all further liability. Defendant’s contention in this respect must be overruled.

2. The stipulations in the policy required immediate notice to be given to the police authorities in event of a loss for which a claim was to be made. Defendant claims that this notice was not given. Plaintiff’s counsel does not concede this, but insists that if it were not given, the defense is not available to the defendant because not pleaded in compliance with Circuit Court Rule No. 23, § 4. At the close of the trial the defendant asked permission to amend its notice in this respect, but the application was denied. It is now argued by defendant that this was an abuse of discretion. In view of the fact that this defense must have been known to defendant some considerable time before the plea and notice were filed, and as the application to amend was not made until the proofs were closed and the witnesses dismissed, we cannot say that a denial of the motion was an abuse of discretion.

3. Contention is made that the evidence of theft or larceny of the pin was not sufficient to justify the jury in reaching the conclusion that it had been stolen. It is said that the most the evidence shows is, that the pin is missing. Plaintiff testified that she kept the pin in a drawer in her dresser under her handkerchief box, that she kept it wrapped in white tissue paper, and that the last time she wore the pin was on the evening of June 3d. That when she returned home she placed it in its usual place, and when she went to look for it on June 9th it was gone, although the paper in which it was wrapped was there. She also ■testifies that she made a thorough search but was unable to find it. Mr. Emery corroborates her in her testimony that she wrapped it in the paper and put it away when she returned on the evening of June 3d. Mr. and Mrs. Emery, during that time, were the only members of the household who were at home, and both testified that they had not seen it since that occasion and that they knew nothing as to its whereabouts. Between the 3d and 9th of June a maid was employed in the family, but left soon thereafter. It further appears that between the 3d and 9th of June workmen were in the house redecorating the rooms. Counsel argues that Mrs. Emery’s testimony does not show that she was certain she placed the pin in its usual place when she returned from the social function on the evening of June 3d. At some stages of the cross-examination she did appear to be uncertain as to this fact, but later she made the statement positive, as will be shown by the following:

“Q. But you have no independent recollection of it outside of these facts?
“A. Well, I am sure I did it, and that is all there is about it; I know positively I did it. Perhaps Mr. Emery was in the room when I did it.”

If it can be said that her testimony was inconsistent as to this fact, the question as to which statements should be given credence was one for the jury. Kelly v. Freedman, 56 Mich. 321; Watson v. Watson, 58 Mich. 507; People v. Hansen, 183 Mich. 565; Parnell v. Pungs, 190 Mich. 638; Burtch v. Child-Hulswit & Co., 207 Mich. 205.

To furnish direct proof that an article-of the character involved here has been stolen is usually attended with much difficulty. Nothing has been called to our attention in the policy which would prevent the fact being shown by circumstantial evidence. If it were competent for plaintiff to establish the fact that it had been stolen by circumstantial evidence, we think the testimony was sufficient to support an inference that the pin had been stolen. For cases which discuss the quantum of evidence necessary to establish the fact, see Miller v. Insurance Co., 247 Pa. St. 182 (93 Atl. 320); Reed v. Bonding Co., 102 Neb. 113 (166. N. W. 196) ; Stich v. Fidelity & Deposit Co., 159 N. Y. Supp. 712; Haas v. Fidelity & Deposit Co., 160 N. Y. Supp. 1101; Hornbech v. Insurance Co., 195 S. W. 1054; Great Eastern Casualty Co. v. Boli (Tex. Civ. App.) 187 S. W. 686; 38 Cyc. p. 277; 9 C. J. p. 1099.

As we find no reversible error in the record the judgment will be affirmed.

Moore, C. J., and Brooke, Fellows, Stone, Clark, and Sharpe, JJ., concurred with Bird, J. Steere, J. concurred in the result.


text:
    LANIER v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE RAILWAY CO.
    1. Railroads — Crossing Accident — Warnings—Right to Rely Upon.
    In an action for personal injuries caused by a collision between plaintiff’s automobile and defendant’s locomotive upon a public crossing, plaintiff had a right to expect that the usual warnings would be given if a train was approaching the crossing.
    .2. Same — Contributory Negligence — Want oe Ordinary Care.
    But plaintiff’s reliance upon this custom being complied with would not relieve him from the charge of contributory negligence, if, independent of this reliance, he had an opportunity to protect himself by the exercise of reasonable care, and failed to do so.
    S. Same — Negligence—Contributory Negligence — Directed Verdict.
    Where plaintiff had an unobstructed view of the track while traveling 114 feet, his failure to slow down so that he would have time to look both ways and avoid the accident, held, contributory negligence precluding recovery notwithstanding defendant’s negligence in failing to give the customary crossing warnings.
    4. Same — Appeal and Error — Gross, Negligence.
    The question of gross negligence, not being argued in plaintiff’s briefs, will not be considered by the Supreme Court.
    5. Negligence — Contributory Negligence — Comparative Negligence — Rule.
    The rule that, however much defendant was negligent if slight negligence upon plaintiff’s part contributed to'his injury he cannot recover, is followed by the courts of this State; the rule of comparative negligence not prevailing.
    On failure of railroad company to give customary signals as excusing nonperformance of traveler to look and listen before crossing track, see note in 3 L. R. A. (N. S.) 391.
    On care required of driver of automobile at' railroad crossing, see notes in 21 L. R. A. (N. S.) 794; 29 L. R. A. (N. S.) 924; 46 L. R. A. (N. S.) 702.
    Error to Schoolcraft; Collingwood (Charles B.), J., presiding.
    Submitted January 20, 1920.
    (Docket No. 3.)
    Decided February 27, 1920.
    Case by John W. Lanier against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company for personal injuries and damage to plaintiff’s automobile by collision. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Larmonth & Goetz, for appellant.

      C. W. Dunton and W. A. Hayes, for, appellee.
   Bird, J.

This is a personal injury ease in which the trial court directed a verdict for defendant on the ground that plaintiff was-guilty of contributory negligence. Whether the trial court was right in disposing of the case on this ground is the sole question presented to us for consideration.

On the morning of October 11, 1917, plaintiff, accompanied by his daughter, left the Hotel Hiawatha, in the city of Manistique, and drove his car south one block and turned west on Deer street.- About 1,500 feet west of the turn he crossed what is known as the transfer track, a track which connects the Soo Line railway with the Manistique & Lake Superior railway. Upon both sides of the street on the transfer track stood several freight cars. From this track to the Soo main line it was 114 feet. Plaintiff passed over the transfer track at a speed of from 12 to 15 miles an hour. After he passed the cars he looked to the west but saw nothing approaching. He then looked to the east and just as he did so his daughter screamed, and he saw a locomotive tender within 12 or 15 feet of them. It struck the automobile nearly in the center and shoved it 180 feet down the track before the locomotive came to a stop. As a result of the accident plaintiff was injured in his left leg and hip, and his automobile destroyed, and he brought' this suit to recover compensation, alleging as grounds for recovery that the locomotive was being backed over the crossing without any lookout thereon and without giving any warning of its approach.

It is argued, in support of the court’s ruling, that after, plaintiff passed the cars he had an unobstructed view of the Soo main line, that he ought to have seen the approaching locomotive, and his failure to see it made him guilty of contributory negligence and bars his right of recovery. Plaintiff replies that he did look but that he could not look both ways at once; that he looked to the west and saw nothing, that he then looked to the east but before he could act upon what he discovered the tender was so close to him he could do nothing to avoid the collision, and it is pointed out that in traveling the 114 feet of clear vision at the rate of 15 miles an hour he would cover the distance in less than five seconds, thereby showing the brief time in which he had to make observations in both directions. It is also argued that had the customary warning been given at the usual distance from the crossing, his attention would have been attracted to the locomotive, and the danger averted.

We fully agree with the trial court that the proofs upon the question of defendant’s negligence presented a case for the jury. We also agree that one approaching a railroad crossing has a right to expect the. usual warnings will be given if a train is approaching (Morgan v. Railroad Co., 162 Mich. 573), but we do not think that plaintiff’s reliance upon this custom being complied with will relieve him from the charge of contributory negligence, if, independent of this reliance, he had an opportunity to protect himself by the exercise of reasonable care. It is true, plaintiff had a very brief time at the rate he was running after passing the transfer track to make observations in both directions, and we are not going to hold, as a matter of law, that his failure in this respect made him guilty of contributory negligence, but we must hold, under the rules we have heretofore laid down, that he was guilty of contributory negligence, as a matter of law, in not slowing down his car, so that he would have time, after passing over the transfer track, to make observations in both directions while he was in a place of safety. Plaintiff'had been over this crossing two or three times a week for two years, and knew the conditions thereabouts and, therefore, must have known and appreciated the distance between the transfer track and the main line, and the time it would take to cover the distance.

The case of Rouse v. Blair, 185 Mich. 632, is much relied upon by plaintiff’s counsel to support their contention. In that case the standing cars which helped to obstruct the plaintiff’s view were very close to the track upon which the train was moving, and beside there were several buildings which helped to cut off his view as he approached the track. In the present case the whole situation came into full view as soon as plaintiff drove over the transfer track. In this respect, the facts of the present case more nearly resemble those in Pershing v. Railway Co., 206 Mich. 304.

It appears to be charged in the declaration that defendant was guilty of gross negligence. The trial court, in directing a verdict, held defendant was guilty of negligence but made no mention of the claim of gross negligence. As the question is not argued in plaintiff’s brief, we do -not consider it.

It may not be the better rule to say that however much the defendant was negligent the plaintiff cannot recover, if slight negligence upon his part contributed to his injuries. But this rule will doubtless be followed by this court until the legislature changes the rule to one of comparative negligence, leaving it to the jury to measure the degree of fault with which each party shall be charged. We are of the opinion that the trial court took the proper view of the case. The judgment will be affirmed.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Sharpe, JJ., concurred.


author: Stone, J.

text:
    PEARSON v. SULLIVAN.
    1. Landlord and Tenant — Lease—Subletting—Notice—Forfeiture — Waiver.
    Knowledge of the lessor that, at the time of the mating of a lease, part of the leased premises was occupied by a subtenant, held, to be a waiver of the clause in the lease prohibiting subletting without the written assent of the lessor.
    2. Same.
    Lessor’s action in continuing to receive the rent from month to month for over a year and a half after she had notice that the lessee was subletting part of the leased premises without written assent thereto, held, to be a waiver of lessor’s right of forfeiture therefor.
    3. Same — Lease—Permissive Use — Restrictive Use.
    The clause in a lease authorizing the use of leased premises for a hotel and bar, held, to be permissive rather than restrictive.

      4. Same — Peaceable Occupancy — Injunctive Reuep.
    On a bill by the lessee to restrain the lessor from interfering with, or preventing the full, continuous, and peaceful occupation of leased premises by plaintiff or his subtenants, held, in the light of the record, that plaintiff is entitled to relief.
    5. Same — Alteration op Leased Premises.
    In the absence of express stipulation, a tenant has no right to make material or permanent alterations in the demised premises.
    6. Same — Waiver.
    Where plaintiff’s lease will expire May 1, 1920, and although he has the option of renewing same for ten years he has not exercised that right, a court of equity will not compel the landlord to consent to extensive structural alterations, entirely changing the character of said premises, proposed to be made by plaintiff, in the absence of waiver by the landlord of any of the provisions of the lease calling for the premises to be delivered up at the expiration of the term in like condition as when taken, reasonable use and wear thereof, and' damage by the elements excepted.
    Appeal from Wayne; Mandell (Henry A.), J.
    Submitted January 16, 1920.
    (Docket No. 75.)
    Decided February 27, 1920.
    Bill by Henry A. Pearson against Catherine Sullivan to enjoin the forfeiture of a lease and for other relief. From a decree dismissing the bill, plaintiff appeals.
    Reversed, and decree entered.

      Frederick E. McCain, for plaintiff.

      Beaumont, Smith & Harris (Archibald Broomfield, of counsel), for defendant.
   Stone, J.

Bill for. injunction to restrain defendant from forfeiting a lease, and for other relief. On March 5, 1912, James Sullivan, now deceased, was the owner of the premises involved in this suit, which premises are located on the east side of Woodward avenue, near the intersection of Piquette avenue, in the city of Detroit, and are known as Nos. 1368-1370 Woodward avenue, upon which premises is located a two-story brick building. On that date he leased the premises to the plaintiff for “hotel and bar” for a period of five years from May 1, 1912, at an annual rental of $2,000. The lease gave the plaintiff the privilege of a further period of three years from May 1, 1917, at an annual rental of $2,500; and the privilege of a still further period of 10 years from May 1,. 1920, at an annual rental of $3,000. The lease contains the following clause:

“Said party of the second part further covenants that he will not assign nor transfer this lease, or sublet said premises, or any part thereof without, the written assent of said party of the first part.”

James Sullivan died testate on June 16, 1912, being a little more than three months after the date of said lease, and the defendant, Catherine Sullivan, by virtue of the will of her husband, the said James Sullivan, became, and still is, the sole owner of said premises. The prayer for relief in the amended bill of complaint contains the following:

. “That said defendant, Catherine Sullivan, and her representatives and agents, be forever restrained by the order and injunction of this honorable court from interfering with, or preventing the full, continuous and peaceful occupation of the said premises, by this plaintiff, or any of his, subtenants, either now or in the future; or from making or installing any repairs, alterations or improvements therein during the life of said lease.”

As to the conditions, existing when the lease was made, and eliminating the testimony of the plaintiff as to matters equally within the knowledge of James Sullivan, deceased, it appears, and is uncontradicted, that the plaintiff had been a tenant and occupant of said premises for some time prior to the making of said written lease; and that he had sublet the southerly portion of the building, known as 1368, to a barber named Dorr.

The hearing in this case occurred in September, 1919, and Mr. Dorr, among other things, testified as follows:

“I am engaged in the barber business and am located at 1368 Woodward avenue. I have been there eight years, over eight years. I pay my rent to Mr. Pearson and have done so all this time. * * * That was July eight years ago. It was a barber shop before my time at the same location. During the years 1917 and ’16, perhaps, a restaurant was in the rear of my place. A man by the name of Webber was in there about two years I should .think, around that time. * * * There are tenants upstairs at the present time other than Mr. Pearson. There were tenants, and have been tenants upstairs to my knowledge, before Mr. Pearson moved out in May. No I have not had any dealings or have ever known any of the Sullivans, or Mr. Sullivan, James Sullivan, -or Mrs. Catherine Sullivan, or Mr. Frank Sullivan.”

There was no evidence at the hearing that either James Sullivan, Catherine SuHivan, the defendant, or Frank Sullivan, her son and manager, has ever been upon the premises during the life of the' present lease. The rent has been collected monthly by an agent of the defendant, or of Frank Sullivan, who seems to have visited the premises for the purpose of collecting the rent.

It is one of the claims of the plaintiff that the occupancy of these premises must have been known to the agent who collected the rent, and that the principal is chargeable with such facts as are known to his agent; and counsel for the plaintiff cites Ireland v. Nichols, 46 N. Y. at p. 416, and quotes the following language:

“The evidence authorized the judge to assume, that John B. Ireland was the general agent of the plaintiff, in respect to the leasing and care of the premises, and collecting the rents. His knowledge of the subletting, and the receipt by him of rent, subsequently accruing with such knowledge, had the same effect in waiving the forfeiture as such receipt by the plaintiff personally, with like knowledge, would have had.”

Counsel has failed to state that in the Ireland Case the plaintiff’s agent was the same person who signed the lease; and there was positive testimony that he was told of the under-letting of the premises. We doubt if a mere agent for the collecting of rent would have authority to waive a clause of the lease, or to so act as that his conduct should operate as an estoppel of the landlord from asserting his rights. Notice to the agent within the scope and purview of his employment is undoubtedly notice to the principal, but this qualification should be borne in mind.

We confess that it is almost inconceivable, however, that the occupancy of these premises, covering a period under the lease of over, six years, should not have been brought to the knowledge of the defendant or her son, who seems to have been her general manager, and both of whom reside in Detroit. It is undisputed, and appears by competent testimony, that the occupancy of - the barber shop and restaurant in the rear thereof, and other occupancies in the upper story, had existed to a greater or less extent during the entire period of the lease; yet it must be said, in the light of this record, that there is no affirmative evidence that James Sullivan, the defendant, Or her son and manager, had actual knowledge of such occupancy. There is no doubt that occupancy of the premises by a subtenant at the time of the making of the lease and known to the defendant would be a waiver of that clause in the lease to prohibit subletting without the written 'assent of the landlord. In such a case, we think, the principle announced by this court in Gordon v. Insurance Co., 197 Mich. 226 (L. R. A. 1918E. 402), should apply. We there held that the insurance company should be estopped from asserting a forfeiture for a condition of the premises, existing at the time of the fire, which existed to the knowledge of the company at the making of the contract. See cases there cited.

It is urged by plaintiff that Mrs. Sullivan, or her son, Frank Sullivan, cannot claim with any show of reason that they did not know that Mr. Pearson had subtenants, for, if they were not aware of the fact, how did it happen that they instructed their attorneys, Messrs. Wurzer & Wurzer, to write the letter, Exhibit 4? That was a letter dated March 1, 1918, and addressed to the plaintiff in this suit. After speaking of rent claimed to have been in arrears, that letter contains the following language:

“We further call your attention to that section of the lease which reads as follows: ‘Said party of the second part further covenants that he will not assign nor transfer this lease, or sublet said premises or any part thereof, without the written assent of said party of the first part.’ If you have any subtenant or subtenants on said premises, you will kindly remove them at once, otherwise the lease will be canceled and you will be removed as well.”

In the 6th paragraph of her answer to the amended bill the defendant said:

“She further says that about March 1, 1918, her agents and attorneys received certain information that the plaintiff was subletting, or might sublet said premises, and that her said agents and attorneys sent a written notice to the said plaintiff on said day calling his attention to said subletting clause, and objecting to any subletting without her written consent, and thereupon the agent of the plaintiff notified this defendant’s attorneys that he had no subtenants.”

In paragraph 10 she said:

“That when her agents first obtained information of subletting, on March. 1, 1918, they did in her behalf object to the same in writing as aforesaid, and were informed that the plaintiff was not subletting, and she denies that she is now estopped from forbidding or objecting to further subletting.”

In the 11th paragraph she denies that the plaintiff believed that she had no objection to subletting said premises, for the reason that he was notified on March 1, 1918, of said objection. And similar language occurs in the 13th paragraph of her answer. It should here be said that there is no evidence in the record that the plaintiff, or his agent, ever notified the defendant, or her attorneys, that he had no subtenants.

It is urged by plaintiff’s attorney that even if it should be conceded that this constituted the defendant’s first knowledge of the subletting, and it appearing undisputed that the defendant had continued to receive the rent each month since, and was still receiving it at the time of the hearing, that it would constitute a general waiver in itself.

We think that under the authorities there is much force in this position. For over one year and a half after the defendant concedes that she, or her attorneys, had notice of subletting she continued to receive the rent from month to month down to the time of the hearing of this case. The conditions here appear to have been continuing and constant. It was not a case of only temporary subletting for a short period, and by special arrangement, but a general, open an<j. notorious condition. Upon this point the plaintiff cites the following cases: Barrie v. Smith, 47 Mich. 130, 132; Patterson v. Carrel, 171 Mich. 296; Conger v. Duryee, 90 N. Y. 594, 599. There the court of appeals of the State of New York said:

“A single condition dispensed with is dispensed with forever. Receiving rent after the forfeiture waives the forfeiture and affirms the lease, freed from the condition.”

Counsel also cites Murray v. Harway, 56 N. Y. 337; 24 Cyc. p. 970, and the following language in 18 Am. & Eng. Enc. Law (2d Ed.), at p. 382:

“It may be stated as a general rule that when the lessor, after knowledge of the breach of the covenant or condition for which he could enforce a forfeiture, expressly or impliedly, recognizes the continuance of the tenancy; he thereby waives the forfeiture for such breach, and is afterwards precluded from asserting it. * * * But it seems that actual knowledge is not necessary where the cause is such that the lessor should have known it, and it is equally within the cognizance of the landlord and tenant. * * * Where his act amounts to the waiver of a forfeiture or a recognition of the continuance of the tenancy, he is precluded from asserting that it was not his intention to waive the forfeiture.”

Counsel also cites upon this point Ireland v. Nichols, supra; Collins v. Hasbrouck, 56 N. Y. 157, the latter illustrating a case of subletting by special permission of the landlord, such as is found in Wertheimer v. Wayne Circuit Judge, 83 Mich. 56; Warner v. Cochrane, 63 C. C. A. 207, 128 Fed. 553. See, also, 18 Am. & Eng. Enc. Law (2d Ed.), at p. 386.

It is also urged by plaintiff’s counsel that the business which plaintiff conducted on the premises in question, to-wit: that of a saloon, is now unlawful, and to prevent him from continuing to sublet will in effect work a forfeiture of his lease, which is not favored by the courts. We hardly need cite authorities in support of the position that the courts do not favor a forfeiture. We think that the plaintiff is entitled to possession and use of the premises during the term of his lease, relieved of the clause against subletting without the written consent of the party of the first part in the lease. The better doctrine seems to be, that a provision in a lease authorizing the use of the premises for a specified purpose is generally regarded as permissive instead of restrictive, and does not limit the use of the premises by the lessee to such purpose. 16 R. C. L., title “Landlord and Tenant,” p. 735, and see the following cases there cited: Burr v. Spencer, 26 Conn. 159 (68 Am. Dec. 379) ; Hayton v. Brewing Co., 66 Wash. 248 (119 Pac. 739, 37 L. R. A. [N. S.] 432).

We are of the opinion that the plaintiff is entitled to have the defendant and her representatives and agents restrained by the decree and injunction of this court from interfering with, or preventing the full, continuous and peaceful occupation of the said premises by the plaintiff, or his subtenants, either now or in the future. To this extent we think the plaintiff, in the light of this record, is entitled to relief.

This brings us to what we consider the most important question in the case: Should the defendant be restrained from interfering with the plaintiff in making or installing repairs or alterations under the lease? There is no claim of the plaintiff that the defendant has. waived any of the provisions of the lease in this respect. By the terms of the lease the plaintiff is to keep the premises, and every part thereof, in as good repair, and at the expiration of the term yield and deliver up' the same in like condition as when taken, reasonable use and wear thereof, and damage by the elements excepted. The general rule, as stated in 24 Cyc. at p. 1094, is as follows:

“In the absence of express stipulation, a tenant has no right to make material or permanent alterations in the demised premises.” See cases there cited

The doctrine seems to be well established that a tenant cannot, without the consent of the landlord, make material changes or alterations in a building to suit his taste or convenience, and if he does so, it is waste. And any material change in the nature and character of the buildings made by the tenant is waste although the value of the property should be enhanced by the alterations. See Brock v. Dole, 66 Wis. 142 (28 N. W. 334), and numerous cases there cited. See, also, 16 R. C. L. p. 733, and cases cited.

In the Brock Case the court quotes from Jackson v. Andrew, 18 Johns. (N. Y.) 434, the following language:

“ ‘That a tenant cannot, under the pretense of advantage to the reversioner, change the nature of the buildings; and many cases show that such changes, though beneficial, would be waste.
“ ‘The ground on which alterations in demised premises, not prejudicial to the value of the property, have been declared waste is, that they change the identity of the estate.’ Willard’s Eq. Jur. 373.”

The taking down of partitions, the making of two rooms into one, the putting up of permanent partitions, any change in the structural character of the premises, is waste. Abel v. Wuesten, 141 Ky. 766 (133 S. W. 774) ; 143 Ky. 513 (136 S. W. 867, Ann. Cas. 1912C, 389).

In this case a peculiar condition exists, and upon this branch of the case the plaintiff’s claim for relief may be termed a “fishing expedition.” The plaintiff’s present term expires on the first day of May, 1920. He has not exercised the option or privilege of claiming or asking a continuation of the terms of the lease after that date. While, by the bill of complaint, he claims to be negotiating with a party known as the Ueata Lunch Company, it appears that such negotiation hinges upon obtaining the consent of the owner to the alterations proposed, and that there is no existing contract shown between the plaintiff and said company, but it rests in a proposition contingent upon this court compelling the defendant to consent to the alterations proposed. Those alterations are very extensive. The said lunch company proposes to tear out the present store front and put in a new one principally of tile, granolithic floors throughout, tile walls, and metal ceilings, and bricking in of the space under the rear porch, thus increasing the size of the store proper. They propose to change or remove the center or north stairway, and to take out and change certain partitions and stairways. This, in our judgment, will change the structural character of the building. There is nothing in the evidence, or in the lease, preventing the plaintiff from continuing on the premises any business contemplated by the lease; but the lunch company will not make this lease without the written, consent of the defendant to the proposed alterations.

In her answer to the amended bill of complaint the-defendant says:

“That she does not wish to have structural changes, made in said premises; that she does not wish to have said premises converted, so that they can be used only for restaurant purposes; that she does not wish to permit any subtenant to demolish a portion of said premises and then be given the right to abandon the same with impunity; that it might impose mechanics’ liens, on her title, which, she would be required to remove; that she has no security whatever under said lease for any default in the making of said alterations,, or for any damages caused to the premises by reason of the same, or from any mechanics’ liens; that said alterations and improvements probably would increase the assessed value of the premises without increasing her revenue under the lease; that she also-owns the premises adjacent to and directly north of' the premises involved in this suit, and the same are-under a nine or ten year lease to the Peoples State. Bank, and that the proposed alterations might jeopardize said premises and said lease.”

It' is significant that the plaintiff himself testified as follows:

“Now in this lease the first term is a period of five-years, I believe the period would expire May 1, 1917,. then I have an option for a further period of three years. Sure, that option I have exercised. I have signified my willingness to keep the premises for that three-year period, that period will expire May 1, 1920. As to the lease containing a condition for a further period of ten years after May 1st, there, of course, lias been no exercise of that option by me.
“Q. So that as the matter now stands, both parties are bound under the lease continuing until May 1, 1920?
“A. I have the right, before May 1, 1920, to extend the time for a period of ten years more. That is a right.that exists in me, but does not exist in Mrs. Sullivan.”

So it appears that there is no existing or subsisting contract between the plaintiff and defendant for any period beyond May 1, 1920. Whether the plain-tiff shall exercise this option depends no doubt upon the result of this lawsuit. We do not recognize the right of a party to thus speculate upon the result of a litigation where there is no existing contract between the parties. In our opinion it would be unjust and inequitable to compel the defendant, under the cir-. cumstances stated, to consent to the structural changes proposed in this record. As to that branch of the case, we think the plaintiff should be denied relief.

This court has no power or authority to compel the plaintiff to exercise this right or option. The plaintiff may exercise it or not as he chooses; but he asks us to say that, if he does exercise that right, then that he or his subtenant shall have the right to make the changes and alterations proposed, and that the defendant be ordered to consent to such changes.

The decree of the court below dismissing the bill will be reversed; the plaintiff will be given the relief herein indicated, and to that extent only, to-wit: to restrain the defendant from forfeiting the lease by reason of the clause of the lease heretofore set forth, which clause we hold has been waived by the conduct of the defendant and that she should be estopped from enforcing the same. No costs will be awarded to either party.

Moore, C. J., and Steere, Brooke, Fellows, Clark, and Sharpe, JJ., concurred. Bird, J., did not sit.


text:
    LOSEY v. HUTCHINSON.
    Specific Performance — Oral Agreement for Lease — Part Performance — Frauds, Statute of.
    On a bill for the specific performance of an agreement to make a written lease for three years, testimony by plaintiffs that, in pursuance of said agreement, they went into possession of said premises, paid the stipulated rent in advance, and, on defendant’s refusal to make certain agreed repairs, made them themselves at a cost of approsimately $200, held, sufficient part performance to take the agreement out of the operation of the statute of frauds and to entitle plaintiffs to a decree.
    ón part performance under parol lease to satisfy the statute of frauds, see note in 49 L. R. A. (N. S.) 113.
    Appeal from Wayne; Webster (Arthur), J.
    Submitted January 14, 1920.
    (Docket No. 90.)
    Decided February 27, 1920.
    Bill by Bert Losey and another against Laura T. Hutchinson for the specific performance of an oral lease. From an order granting a motion to dismiss, plaintiffs appeal.
    Reversed, and remanded.
    • James H. Pound, for plaintiffs.

      William O’Neill Kronner, for defendant.
   Bird, J.

The bill of complaint in this case which was filed on August 26, 1919, prays for specific performalice of an agreement to make a written lease for three years. Defendant filed a motion, in the nature of a demurrer, to dismiss the bill. The chancellor granted the motion and plaintiffs have appealed. The issue presented to this court is whether, upon the face of the bill, sufficient appears by way of performance to take the agreement out of the operation of the statute of frauds. In order to determine this the substance of the showing made in the bill will have to be considered.

It appears from the bill that plaintiffs are husband and wife, and that prior to October 15, 1918, they resided at 29 Maybury Grand Avenue, in the city of Detroit, where they conducted a rooming house and received considerable income therefrom. That some time during the latter part of September or the fore part of October, 1918, Alice Whelan, a mutual friend of the parties, was sent by defendant to plaintiffs to induce them to lease a certain dwelling which she owned at 376 Military avenue at a rental of $50 a month. After some negotiations, in which plaintiffs refused to lease by the month, plaintiffs submitted the proposition to defendant that they would abandon the house in which they were living, and take a lease of her house from the 10th day of October, 1918, for a term of three years, on condition that she would make certain repairs in and about the house. These’repairs were specified in the offer. This proposition was accepted by the defendant on condition that they pay $50 a month and make the payments in advance.

It is further shown that in pursuance of this agreement plaintiffs moved into and took possession of defendant’s premises on the 10th day of October, 1918, and that they have ever since paid $50 a month in advance, in accordance with their said agreement, but that defendant has refused and neglected to make the repairs in and about said house, and that after waiting some considerable time for her to comply with her agreement in that regard, they made the repairs themselves at an expenditure of approximately $200. That they have repeatedly requested her to execute and deliver to them the lease which she promised; that she has promised, on several occasions, that she would do so, but she has never fulfilled any of her said promises in this regard; that the said plaintiffs caused a lease to be prepared, embodying the terms agreed upon and tendered it to her for execution, but she refused to execute it. It is further charged in the bill that the reason why she refuses to execute it is because rents have advanced to that extent in the city of Detroit that she is now able to rent the premises for very much more than $50 a month, and that she has assigned that reason why she will not execute the lease. It is further shown that defendant threatens to eject the plaintiffs.

In discussing the enforcement of such contracts, it is said in 36 Cyc. p. 680, that:

“The doctrine of part performance-applies to such contracts to lease premises or to renew a lease as fall within the statute of frauds, equally as well as to contracts of sale. Contracts to give a written lease therefore may be part performed by taking possession and paying rent, or by taking possession and making valuable improvements ; or in England and in some of the United States by taking possession without further act.”

And it is held in the following cases that possession and payment- of rent are sufficient part performance to validate a parol lease for a term of years. Seaman v. Ascherman, 57 Wis. 547 (15 N. W. 788) ; Clark v. Clark, 49 Cal. 586; Morrison v. Herrick, 130 Ill. 631 (22 N. E. 537); Dunckel v. Dunckel, 141 N. Y. 427 (36 N. E. 405) ; Spear v. Orendorf, 26 Md. 37; Waterman on Specific Performance, § 275.

It is said by Taylor in his work on Landlord and Tenant that:

“As a general rule, also, the specific performance of an agreement for a lease will be ordered only when it is in writing, and conforms to the statute in all other respects; but it may be decreed, although not in writing, if it is fully set forth in the bill and confessed by the answer, or if it has beep, partly carried into execution by the performance of such acts as clearly appear to, have been done with a view to the agreement being fully performed; or, under such circumstances as would manifestly operate as a fraud upon the other party unless the agreement should be so performed.” 1 Taylor Landlord & Tenant (9th Ed.), §49.

The case of Eaton v. Whittacre, 18 Conn. 222, is an interesting exposition of the application of the principle and supports the doctrine contended for by plaintiffs. The principle has also been followed and applied by this court in Charlet v. Teakle, 197 Mich. 426. In that case while the tenant was in possession of certain premises the landlord orally agreed to extend the lease, if the tenant would make certain improvements in the room he was occupying and lease the adjoining room. The tenant made the improvements and took possession of the adjoining room and paid the rent in accordance with the oral agreement. Upon the landlord’s refusal to extend the lease the tenant filed his bill for specific performance of the oral agreement, and this court affirmed the holding of the trial court in which it decreed specific performance of the oral agreement.

We are of the opinion that the plaintiffs have stated a case in their bill which calls for equitable relief. Taking this view of it the order dismissing plaintiffs’ bill must be reversed and the case remanded to the trial court for further proceedings thereon. Plaintiffs will recover their costs in both courts.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Sharpe, JJ., concurred.