author: McAlvay, J.

text:
    ANTOSIK v. MICHIGAN ALKALI CO.
    1. Master and Servant — Infant—Dangerous Work — Statutes —Child Labor Law.
    Act No. 113, Pub. Aots 1901, prohibiting the employment of any one under 16 years of age at work dangerous to life and limb, was not intended to prevent the hiring of a minor under that age as a common laborer to work at handling limestone and later at cleaning the inside of a still in a chemical works, nor was the work of aiding several laborers in attempting to close the heavy iron door of the still, which broke from its hinges and fell on plaintiff, within the statutory prohibition.
    2. Same.
    As a matter of law, plaintiff’s age and inexperience could not be said not to have contributed to his injury.
    3. Same — Inspection—Bolts.
    Evidence that the bolt holding a hinge of the door had rusted half off, that the upper part had rusted fast to the hinge, that a long time had elapsed since inspection, and that the bolt broke permitting the door to fall, tends to establish negligence.
    4. Same.
    Actual knowledge of the defect by the employer was not required to be shown, but it was enough to show such facts and circumstances that if the employer had exercised reasonable care he would have discovered the defect.

    5. Evidence — Curing Error.
    Where testimony was excluded'as not responsive and appellant later recalled the witness and examined him concerning the exoluded matter, no prejudicial error appeared.
    6. Trial — Argument.
    Argument of plaintiff’s attorney appealing to the sympathy of the jury upon matters not at issue is improper.
    7. New Trial — Motions—Newly Discovered Evidence.
    The trial court rightly denied a new trial on a showing by letter from plaintiff’s father that he was over 16 years of age at the time of the injury, and by an unsworn statement of the registration of plaintiff’s birth, no competent evidenoe of the facts being offered or produced.
    Error to Wayne; Murphy, J.
    Submitted January 12, 1911.
    (Docket No. 78.)
    Decided July 5, 1911.
    Case by Peter Antosik, by next friend, against the Michigan Alkali Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Gray & Gray, for appellant.

      Dohany & Dohany, for appellee.

       Knowledge as element of employer’s liability, see note in 41 L. R. A. 33.

   McAlvay, J.

Plaintiff recovered against defendant in an action for damages against it for personal injuries to him caused by the negligence of its agents and servants. The case is brought to this court for review upon a writ of error by defendant, upon the claim that reversible errors were committed upon the trial.

Defendant company is engaged in the manufacture of soda ash and its by-products. In the plant of defendant are a number of stills, used in the manufacture of its products and located in what is called the process room. The stills, after having been in use for five or six weeks, require cleaning to remove theiime scale which forms on the inside. For this purpose a still is opened and men enter with hammers and chisels to clean off the scale, which is swept up and carried away. Each still when in use is closed air tight by a manhole cover and an outside iron door. The day before plaintiff’s injury a still was opened for cleaning, and he worked in it cleaning off and removing the scale. When the cleaning was completed, which was on the day of the injury, the assistant foreman and three, or four workmen including plaintiff proceeded to close it. A rubber gasket to make the door tight is placed between it and the frame of the door, and to bring the door up so as to fasten requires considerable force. The door in question was iron. The bottom was 18 inches above the ground. It was 7 feet 4 inches in height, 25J inches wide, 1J inches thick, and weighed between 700 and 800 pounds. The door was hung upon heavy iron hinges, one part of each hinge being fastened to the door, and the other part to the door jamb, and the parts were connected with a one-inch bolt six inches in length. These hinges were so made that the half of the lower hinge which was fastened to the door was above the half fastened to the jamb, and the half of the upper hinge fastened to the door was below the half fastened to the jamb. The men, after the gasket was put in position, started to close the door, but it did not come up tight. Then the assistant foreman took hold of the outer edge and swung it back and forth two or three times, and feeling that it was giving way he shouted a warning to the men standing near to get out of the way. All of the men except plaintiff escaped the falling door. He was caught under a part of it and injured severely. The bolt had broken at a point between the two parts of the upper hinge and the door had fallen outward.

There was a dispute in the case as to the age of plaintiff, and some testimony tending to show that he was more than 16 years of age was offered by defendant and excluded by the court. The negligence relied upon was that plaintiff being under 16 years of age was employed by defendant at employment whereby his life and limb were endangered; that defendant did not furnish a safe place in which to work, did not properly inspect these hinges, and failed to warn plaintiff of his danger.

The errors assigned will be considered in the order presented and discussed by appellant.

Upon the question as to whether plaintiff was employed in violation of the child labor law, the court charged that the work at which he was employed in handling limestone and in cleaning out the still was not dangerous to life and limb and added:

“The plaintiff’s claim in this respect rests upon the theory that when he was instructed to close the door in question he was put at dangerous employment within the statute; that is for you to say, gentlemen of the jury.”

Appellant contends that the court erred in this portion of the charge because the employment in assisting in shutting this door was not within the scope of the statute, and, further, that the age of the plaintiff in no way contributed to the accident. The plaintiff had worked but two days for defendant company before the injury. On the first day he had handled limestone, and on the second day he had cleaned scale from the still. He had been requested to remain overtime for the purpose of assisting in closing the still door. He had been hired as a common laborer at $1.65 per day. The work he had been called to do previous to the injury could be said as a matter of law not to be within the scope of the statute. "We also think that it could be said, as a matter of law, under the facts disclosed by this record, that this employment in assisting to close this door was not dangerous to life and limb, and hold that it was error to submit the question to the jury for determination. Such employment was not within the spirit and intent of the prohibition of Act No. 113, Pub. Acts 1901.

It is further contended that the plaintiff’s age in no way contributed to the accident, and, therefore, under the decisions of this court, employment in violation of the act was immaterial. The cases cited and relied upon are all cases where the plaintiff was guilty of contributory negligence, and in but one of them was the violation of the statute involved. Beghold v. Auto Body Co., 149 Mich. 14 (112 N. W. 691, 14 L. R. A. [N. S.] 609). In the instant case no claim is made that plaintiff was guilty of contributory negligence, nor could such claim be made from the evidence. It is not for the court say, as a matter of law, from this record, that plaintiff’s age and inexperience in no way contributed to his injury.

On the question of negligence by defendant by reason of neglect to reasonably inspect these hinges, appellant concedes a duty on the part of a master in the following words:

“We concede a duty on the part of a master to make reasonable inspection. We contend, however, that when plaintiff relies upon the neglect of this duty, he must show such neglect before defendant is obliged to prove that reasonable inspections were made.”

Appellant contends that such negligence cannot be inferred from proof of the accident and consequent injury; “that the burden of proof is upon the plaintiff to show a defect and notice to the defendant of such defect, or that by the exercise of ordinary care defendant would have had notice.” The appellant urges that there were no facts or circumstances shown that would charge defendant with the duty to inspect.

The record shows that the bolt in the upper hinge of this door broke while an attempt was being made to close it; that the door weighed 700 to 800 pounds, and that the bolt had rusted in the hinge so that it was necessary to drill the upper half out; that the lower half was tight and was driven out with a hammer; that there had been no inspection for a long time. There is a dispute between the witnesses as to whether the break in the bolt was a new one or an old one which had rusted half-way across and only one-half was new. There was therefore evidence in the case to make an issue of fact for the jury upon the question of neglect to make a reasonable inspection, and the court submitted this question under proper instructions.

This court has said:

“ It is not necessary in order to recover for injuries arising from defective machinery that the master had actual knowledge of such defects, but it is enough to show such facts and circumstances to exist that if he had exercised reasonable care and diligence he would have ascertained its true condition by examination and inspection.” Johnson v. Spear, 76 Mich. 139 (42 N. W. 1092, 15 Am. St. Rep. 298).

It was not error to refuse to direct a verdict for defendant on the ground that there was no evidence tending to show that defendant had been negligent in the matter of the inspection of the door and hinges.

The only error discussed relative to the exclusion of testimony relates to certain testimony of the assistant foreman. This witness, an employé of defendant, was called by plaintiff under Act No. 307, Pub. Acts 1909. He was examined through an interpreter, and gave an answer which plaintiff’s counsel asked to have stricken out as not responsive and a conclusion. An objection was made and an exception taken by defendant upon the granting of the motion. The record shows that this witness was recalled by defendant and testified to the same effect without objection. Appellant therefore has no ground for complaint.

Error is assigned upon claimed prejudicial argument of counsel for plaintiff, in closing the case to the jury. The portion of the argument was objectionable which appealed to the sympathies upon matters not at issue in the case. We suggest that upon the new trial which must be ordered care be taken that such argument be not repeated.

All that remains for consideration is the error assigned upon the denial of the motion for a new trial made on the ground of newly discovered evidence relative to the age of plaintiff who testified that he was under 16 years of age. A letter purporting to be from the plaintiff’s father and a birth certificate purporting to be a statement of the registration of plaintiff’s birth were produced on this motion. In his written opinion denying the motion the learned trial judge said:

“Neither the letter nor the certificate would be admissible upon the trial. No proffer of any competent testimony is made tending to substantiate the wholly incompetent statements contained in these two exhibits. Were a new trial granted, not only is no assurance given that proof conformable to the claims of these documents would be adduced, but there is no intimation that any admissible evidence whatever upon the topic would be tendered. The defendant wholly fails in this respect to make the necessary showing prerequisite to granting a new trial upon the ground of newly discovered evidence.”

The reasons of the court for denying a new trial upon this ground were sufficient.

For the reason stated in this opinion, the judgment is reversed and a new trial granted. .

Moore, Blair, and Stone, JJ., concurred with McAlvay, J. Brooke, J., concurred in the result.


source: Caselaw Access Project

author: Bird, J. Ostrander, C. J.

license: Public Domain

text:
    NEWTON v. NEWTON.
    1. Divorce — Decree—Piling Nunc Pro Tunc.
    Upon a petition and proofs showing that complainant filed a bill for divorce 15 years previously against her husband, obtained substituted service, brought on the cause for hearing, and that the trial court directed her solicitor to prepare a decree, which the judge subsequently signed, but which became lost or destroyed without having been filed in the cause, the administrator of the defendant’s second wife whom defendant afterwards married in. California, was, after his death, entitled to an order entering the decree nunc pro tunc.

    2. Same — Judgment—Laches.
    The delay in asking for relief being excused by the probability that the parties remained in ignorance of the defect, since they would not be expected to know of it, is not a bar to relief.
    Ostrander, C. J., and Brooke and Blair, JJ., dissenting.
    Appeal from Muskegon; Davis, J., presiding.
    Submitted February 10, 1911.
    ( Docket No. 153.)
    Decided July 5, 1911.
    Bill by Evaline Newton against Lyman Newton for divorce. A number of years having elapsed subsequent to the hearing, one O. H. Lent, administrator of the estate of Nellie Newton, deceased, filed a petition to have a decree entered in said cause in accordance with the opinion and direction of the trial judge at the hearing. From an order denying the relief prayed, petitioner appeals.
    Reversed.

      Edward Waer, for appellant.

      Charles B. Cross, for appellee.
   Bird, J.

The petition alleges that a decree of divorce was granted complainant in this cause in 1894; that the same was prepared and signed by the court, but by the neglect of some one it was neither filed nor entered, and he prays that it may now be filed and entered on the records of the court as of the date when it was rendered. The Chief Justice finds from the records and oral testimony that a decree was granted, prepared, and signed, and that the marriage was dissolved, as alleged by petitioner, but denies to him a nunc pro tunc order to complete the record. I concur with his finding that such a decree was granted, prepared, and signed, and that the marriage was dissolved; but I disapprove of his refusal to grant the relief prayed. If a decree was actually granted, prepared, and signed, but by the neglect of some one it was never filed or entered on the records, and we are convinced of these facts, as we are, I think "the petitioner is entitled to the relief which litigants usually get when they prove their case.

It is safe to assume that the parties did not know of the defect in the record. They would not be supposed to know of it. Such matters are usually attended to by counsel and other officers of the court. It required some such occasion as the present one to bring the defect to the light.

It is said that defendant had no opportunity to ask for a rehearing or a review of the proceeding. If defendant had desired a review of the proceeding and had taken steps to that end, the defect would have been discovered and corrected many years before this petition was filed, and from the fact that 15 years have elapsed without any such attempt being made, upon his part, we may safely conclude that he did not desire a review of the proceedings.

The order of the trial court is reversed, and an order will be entered therein agreeable to the prayer of the petition.

Hooker, Moore, McAlvay, and Stone, JJ., concurred with Bird, J.

The complainant filed her bill against the defendant December 5, 1894, for a decree of absolute divorce on the ground of nonsupport. There was no personal service of process, but, upon an affidavit of nonresidence being filed, an order for the appearance of defendant was made and published. The bill was taken as confessed by the defendant June 17, 1895. The cause came on for hearing on June 21, 1895, and proofs were taken. No decree was ever filed or entered. The last entry on the chancery calendar in this cause, in the year 1895, is under date June 17th, when an affidavit of regularity was filed. The next entry in order is July 22, 1907, “Order dismissing suit filed.” The next entry, March 22, 1909, “ Copy of marriage certificate filed,” and, on the same date, “Order permitting removal of marriage certificate from the files filed and entered.” The paper writing upon which the entry of July 22, 1907, is based is entitled in the cause, and is as follows:

“In this cause, on motion of Evaline Newton, the above complainant, it is ordered that the said cause be and the same is hereby dismissed. Evaline Newton, complainant.”

On the 2d day of November, 1909, one O. H. Lent, of Riverside, Cal., filed a petition in said court and cause, setting up, upon information and belief, that after the proofs were taken in the divorce suit a decree of divorce was granted by the court to the complainant, and that such a decree was prepared and signed by the judge, but that the decree was never filed, is lost, and cannot be found; that after the decree was granted, the defendant who was a resident of the State of California, and had learned of the decree, married, on October 21, 1908, Nellie R. Cunningham, and, on January 9, 1909, died, the said Nellie surviving him; that on June 26, 1909, the said Nellie Cunningham Newton died in the State of California, and petitioner was appointed administrator of her estate; that as widow of Lyman Newton said Nellie was entitled to property of which Lyman Newton died seised, and that petitioner, as administrator of her estate, is entitled to it. The prayer of the petition is that an order be made for signing, filing, and' entering a decree of divorce in the cause, to bear date prior to October 21, 1908, to take the place of the former decree.

This petition was answered by Evaline Newton, who denies that a decree of divorce was granted or signed, or that the court did anything more than to take the case under advisement. She admits that she caused the order, signed by herself, dismissing the said cause, to be entered; admits that Lyman Newton went through the form of a marriage ceremony in the State of California with Nellie R. Cunningham, but says that it was secretly performed, and that the said Lyman Newton knew that he was still the lawful husband of complainant. Further answering, she says that she is the widow of said Lyman Newton, entitled to, and that she has claimed an interest in, his property, and has been recognized as such widow by the courts of California, and is now acting as administratrix of Lyman Newton’s estate. She further avers that subsequent to the taking of proofs in the original cause a reconciliation was effected between herself and her husband, who thereafter resumed marital relations, and at different intervals lived together as husband and wife.

Proofs were taken in open court. On the part of the respondent, Evaline Newton, the proofs tended to show that she never knew of any decree having been granted; never saw a decree; that she cohabited with Lyman Newton after July 22,1907, and that in September, 1906, there was pending in the superior court, in the county of Los Angeles, State of California, a suit instituted by Lyman Newton, as plaintiff, against Evaline Newton, as defendant, the complaint in which set out that plaintiff and defendant intermarried on or about the 13th day of March, 1868, “and ever since have been and now are husband and wife,” and further alleging that on or about the 25th of August, 1890, the defendant deserted and abandoned the plaintiff without cause, and against his will and without his consent. The prayer of the complaint is that the bonds of matrimony between plaintiff and defendant be dissolved.

The testimony relied upon by the petitioner, aside from the files and records in the cause, is the following: An entry on the printed calendar of the circuit court for the county of Muskegon, for the May term, 1895, kept by Judge Russell and in his handwriting, reading: ‘ ‘ Evaline Newton v. Lyman Newton. Divorce. P. W. Kniskern. Decree;” the minutes of the stenographer on file with the clerk of the court, read by his successor, which show that upon the hearing of the divorce case three witnesses were examined (two besides the complainant), and at the conclusion of the testimony the entry, “You may prepare a decree;” the testimony of Mr. Kniskern, who was one of the solicitors for complainant, who examined the witnesses at the hearing, who testified that a decree was prepared and signed by the court, and that afterwards he had the decree in his office and cannot tell the reason for not filing it; that it was in his table drawer for a long time; that his client soon after the hearing went to Chicago; that he had a number of talks with her about the decree, and as to what had become of it. In this respect the testimony of Evaline Newton contradicts that of Mr. Kniskern, as does also that of her daughter. The question is whether the court below, upon this record, should have made and entered a decree as of a date prior to the 21st of October, 1908, which was the date when it is claimed said Lyman Newton married Nellie Cunningham, in the State of California.

Ostrander, C. J.

(after stating the facts). ■ The statute (1 Comp. Laws, § 557) provides that any decree of a circuit court, in chancery, “that may have been duly passed and signed, * * * and which may have failed to be recorded or enrolled, may be directed by the court, * * * in its discretion, to be recorded and enrolled by the register of the court, nunc pro tunc; and when so recorded and enrolled the same shall be as effectual as if recorded and enrolled at the end of thirty days after its allowance.”

The statute (3 Comp. Laws, §§ 10276-10280) is “An act to provide for the restoration of lost records, papers, or other proceedings in courts of record.” The petition does not distinctly show that a statute is relied upon, and in the brief for petitioner and appellant, referring to the statute last mentioned, doubt is expressed whether it is applicable. The point is probably immaterial, since the statutes appear to provide for doing nothing which courts of record have not inherent power to do. See Drake v. Kinsell, 38 Mich. 232, 235. Both statutes expressly give to the courts discretion to restore or not to restore lost records. The exercise of discretion is involved in the exercise of the inherent power possessed by the courts.

The interest of the petitioner in fact is admitted, namely, that the ceremony of a marriage between Lyman Newton and Nellie R. Cunningham was performed in California; that Lyman Newton died in California January 9, 1909; that said Nellie died in California June 26, 1909; and that petitioner is administrator of her estate. Inferentially, at least, it is admitted that the widow of a deceased person has, in California, some rights in the deceased husband’s estate. We regard this as a sufficient showing of the right of petitioner to inquire about and to establish, if he can, the status of Lyman Newton, as a married or an unmarried man, at the time he contracted marriage with petitioner’s decedent.

For all purposes of enforcement or of appeal, a decree of a court of chancery must at least come to the hands of the register of the court. Sellers v. Botsford, 9 Mich. 490; Newbould v. Stewart, 15 Mich. 155; Wolverine Land Co. v. Davis, 141 Mich. 187 (104 N. W. 648). A decree of divorce, which evidences no more than that a marriage is annulled, contains no provision for alimony, and imposes no obligation upon either party litigant, is not a decree which may be enforced, within the usual meaning of the term. It fixes the status of the parties; frees them from all obligations to each other; dissolves the relations theretofore existing between them growing out of the contract and ceremony of marriage. For the purposes of an appeal, the time would run from the entry of such a decree. So, undoubtedly, in ordinary cases the time within which, under the provisions of 1 Comp. Laws, §§ 496, 497, a defendant proceeded against as a nonresident may appear and be permitted to defend, after decree, would run from the date of filing and entry of the decree, unless notified in writing that the decree had passed. See Coffin v. Ontonagon Circuit Judge, 140 Mich. 420 (103 N. W. 835). This statute, however, expressly excepts decrees for divorce, and such decrees, and the proceedings in which they are entered, are in many respects exceptional, when compared with proceedings within the ordinary jurisdiction of courts of equity.

We are satisfied that in the divorce suit the court, upon a hearing, announced a conclusion in favor of complainant and later signed a decree of divorce. We are satisfied that the decree, which should have been at once handed to the register of the court, was handed to, and remained for some time in the possession of, complainant’s solicitor and has been lost. We may assume, we think, that the decree followed the bill of complaint and did no more than dissolve the marriage. The judgment of the court had then, and not until then, been pronounced; the status of the parties had been determined. It would be intolerable if, after such determination, a party, or the solicitor of a party, could vacate or assert the judgment by filing or refusing to file the decree with the register of the ’’court; could then determine, at pleasure or by inadvertence, whether the parties were or were not husband and wife. In the absence of a statute rule, we must hold that the marriage was dissolved when the decree was signed.

This conclusion does not necessarily dispose of the matter in appellant’s favor. Fifteen years elapsed between the making of the decree and the application to restore it. During that period neither party to the divorce proceeding —and it appears that the husband had knowledge that it was instituted — have been in a position to show, by the record of a court, that their relations were other than those of husband and wife; relations which, it is admitted, originally existed. The husband had no opportunity to appeal from the decree or to ask for a rehearing or review of the proceeding. Only after his death is it sought to secure record evidence of a changed relation and status. We are disposed to leave the parties, so far as the record of the court is concerned, where they left themselves.

The order of the circuit court, in chancery, for the county of Muskegon, should be affirmed, with costs to appellee.

Brooke and Blair, JJ., concurred with Ostrander, 0. J.


author: Bird, J.

text:
    HARPER v. CONCRETE PUBLISHING CO.
    1. Payment — Application oe Credits — Contracts.
    Plaintiff sold all his stock, a controlling interest in a publishing corporation, reserving to himself all book accounts to Juna 80, 1906, except unpaid subscriptions. After the transfer of control of defendant to the purchaser, an advertiser owing a book account to plaintiff for advertising prior to that date and a like amount to defendant for advertising subsequent to June 80, 1906, sent a check to defendant corporation which applied the payment on its account. The check was introduced in evidence and showed an indorsement, “bal. to and including June issue,” which defendant claimed was not on the check when received. Held, that it was a question of fact whether the indorsement was thereafter added and in that case defendant was entitled to apply it on the aocount which it should elect.
    2. Contracts — Corporations—Oeeioers.
    Whether or not plaintiff owed defendant for mileage which it was claimed he obtained in consideration of advertising after the sale of his interest was for the jury.
    8. Trial — Prejudicial Error.
    Ruling and remarks made by the court relative to items that plaintiff claimed and that were allowed to him by defendant or by the court were not prejudicial.
    Error to Wayne; Murphy, J.
    Submitted February 10, 1911.
    (Docket No. 155.)
    Decided July 5, 1911.
    Assumpsit in justice’s court by David N. Harper against the Concrete Publishing Company. Plaintiff appealed to the circuit court from a judgment for defendant on defendant’s claim of set-off and recoupment. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Edward A. Barnes, for appellant.

      James Swan, for appellee.
   Bird, J.

This is an action in assumpsit begun in a justice’s court by plaintiff to recover for certain money items which he claimed were due him from defendant. The defendant pleaded the general issue and gave notice of set-off. A trial resulted in a verdict for defendant. In the circuit court the defendant recovered a judgment of $57.83, which was afterward reduced to $27.83 by the trial court on the hearing of a motion for a new trial. From that judgment the plaintiff assigns error in this court.

The defendant is a corporation whose business in 1906 was the publication of “Cement” a trade journal. The plaintiff was president, general manager, and director of the company, and owned all of its 600 shares save 6 qualifying shares owned by two other directors. In June, 1906, plaintiff sold all the shares of the company to Edward Kranich with the agreement that plaintiff should pay all the indebtedness of the company up to June 30, 1906, and should retain all book accounts and credits of the company except subscriptions which were in arrears. The parties made collections on each other’s account as it was agreed they should do, and soon fell into differences over the ownership of certain items collected. Not being able to agree, plaintiff brought this suit, and filed a bill of particulars containing several items. The defendant filed a bill of particulars of its set-off. In passing through the two trials and the hearing upon a motion for a new trial, the plaintiff’s claims were reduced to one of $37.50, paid to the defendant by the Corn Belt Manufacturing Company for advertising, and the defendant’s claims were reduced to three as follows: For mileage obtained by plaintiff after June 30, 1906, from the Atchison, Topeka & Santa Fé and Southern Railways, and for an unused Erie Railway mileage book, which plaintiff failed to turn over to defendant at the time of the sale.

The Corn Belt Manufacturing Company paid defendant $37.50 for advertising, which plaintiff claimed belonged to him. The evidence disclosed that this company was in arrears to plaintiff in the sum of $37.50 for advertising for the months of April, May, and June, 1906, and that it was also in arrears to defendant in a like amount for the months of July, August, and September, 1906. On October 4, 1906, the company sent a check for $37.50 to pay for three months advertising and defendant applied it upon its own account. Plaintiff insists that it should have been applied upon his account. The trial court left the question to the jury, and in doing so instructed them as follows:

‘ ‘ If the indorsement upon the check was not upon it when the defendant company received it, then, and in that event, the defendant would be entitled, under the evidence in his case, to apply that $37.50 upon the advertising for the quarter beginning July first, because where no direction is given by a debtor to his creditor as to how the money which he (the debtor) pays, applies, the creditor may apply it on any debt he desires. In this case it is claimed by the plaintiff that the check remitted, for $37.50 at the time remitted, bore on its back the indorsement that the check was in full for the quarter ending June 30th; and, if so, the debtor had the right to direct the application of that check upon the quarter which expired June 30th; if, however, that indorsement was not then upon the check, the creditor — in this case the defendant company — could apply that check upon any debt then owing; and it appears that the company did apply it in payment of advertising which ran from and after July 1st. So, gentlemen of the jury, the sole question and the determining question with reference to the Corn Belt item is, Was or was not that indorsement upon that check when it was remitted to the defendant company ? If the evidence satisfies you that it was, the plaintiff should be allowed that item. If the evidence does not satisfy you that the indorsement was then upon it when received by the defendant company, plaintiff should not be allowed that item.”

Plaintiff assigns error on this instruction. We think the instruction was proper. Plaintiff introduced in evidence the canceled check, which showed a memorandum on its back in writing that it was “ Bal. to and including June issue.” The defendant, claimed that this memorandum had been indorsed on the cheek after it had been returned to the Corn Belt Manufacturing Company, and to support the contention it showed that the check was sent in response to a statement for advertising for the months of July, August, and September, and offered in evidence a letter from that company referring to the check as payment for those months. Waiving the question whether the memorandum on the check was established by any competent evidence, we think the testimony of the defendant made an issue of fact for the jury.

We are also of the opinion that the question as to whether plaintiff was indebted to defendant for the mileage he obtained from the Atchison, Topeka & Santa Fé and Southern Railways after he sold his interest in the company, and as to whether the unused Erie Railway mileage the plaintiff had in his possession at the date of the sale of his stock belonged to the defendant were issues of fact, and that the trial court was not in error in submitting them to the jury.

Counsel complains of certain rulings and remarks of the trial court in relation to the claim of defendant for taxes and in relation to plaintiff’s claim for money paid to Nirkham. In view of the fact that these claims were both eliminated from the case before it reached this court, we think plaintiff has no just cause for complaint. The defendant’s claim for taxes was withdrawn, and plaintiff’s claim for money advanced to Kirkham was allowed by the trial court on the motion for a new trial.

We have examined the record with reference to the other assignments of error, and find nothing calling for a reversal of the case.

The judgment of the trial court is affirmed.

Ostrander, C. J., and Brooke, Blair, and Stone, JJ., concurred.


author: Brooke, J.

text:
    ACME FOOD CO. v. KIRSCH.
    1. Bills and Notes — Judgment—Warrant op Attorney — Statutes.
    A warrant of attorney to confess judgment contained in a promissory note is void under 3 Comp. Laws, § 10399, requiring that the authority to confess judgment be contained in a separate instrument.
    3. Judgment — Contracts—Validity op Foreign Judgment.
    In this State a judgment is void whioh was secured in Illinois without service of process on an invalid warrant of attorney to confess judgment contained in a promissory note executed in Michigan payable in the State of Illinois.
    3. Contracts — Conpliot op Laws — Validity.
    Contracts valid where made are as a rule valid everywhere, while a contract invalid where made is invalid everywhere.
    Error to Manistee; Withey, J.
    Submitted February 15, 1911.
    (Docket No. 14.)
    Decided July 5, 1911.
    Assumpsit by the Acme Food Company, a foreign corporation, against R. G. Kirsch and E. O. Thompson on a foreign judgment. On the trial before the court without a jury judgment was rendered for plaintiff. Defendants bring error.
    Reversed, and no new trial granted.

      F. H. Stone (Thomas Smurthwaite, of counsel), for appellants.

      Frank L. Fowler, for appellee.
   Brooke, J.

Plaintiff is an Illinois corporation. The defendants are residents of Manistee county, Mich. A judgment was obtained by plaintiff in the municipal court of the city of Chicago against defendants, July 13, 1907, upon a warrant of attorney contained in the following instrument:

“$250.00.
“Grand Rapids, Mich., March 9, 1905.
“ On or before eighteen months after date, for value received, I, we, or either of us, promise to pay to the order of Acme Food Company, a corporation organized and ex-t isting under the laws of the State of Illinois, two hundred* and fifty and no/100 dollars, payable at the First National Bank, Chicago, Illinois, with interest annually, from date hereof until paid, at the rate of six per cent, per annum, payable and negotiable without offset or counterclaim. * * * And to secure the payment of said account, I, we, or either of us hereby authorize, irrevocably, any attorney of any court of record to appear for me in such court in term time or vacation, at any time hereafter, and confess a judgment * * * for such amount as may appear to be unpaid, thereon, together with costs, and twenty-five dollars attorney’s fees, and to waive and release all errors which may intervene in any such proceedings, and consent to immediate execution upon such judgment, hereby rectifying and confirming all that my attorney may do by virtue thereof.
“R. G. Kirsch,
“E. O. Thompson.”

No process was issued from said municipal court, or served upon the defendants, or either of them. The certified copies of the proceedings in said court show that this judgment was based solely upon a warrant of attorney to confess judgment contained in the writing above set forth. Later plaintiff brought suit in the circuit court for Manistee county, Mich., upon this judgment. The case was tried before the court without a jury. Plaintiff offered in evidence a duly certified transcript of the judgment rendered by the municipal court of the city of Chicago, which was objected to, because it did not appear that the court had jurisdiction. Plaintiff then offered the Illinois statutes containing the municipal court act, and also section 88 of the practice act of Illinois [Hurd’s Rev. Stat. 1909, chap. 110] relative to confessions of judgment without process, and the rule of the municipal court, adopting section 88 and certain other sections, to govern its proceedings in civil cases. Defendants further objected to the judgment offered on the grounds that the court had no jurisdiction, stating at length the grounds of the objections. These objections were overruled by the court and the documents admitted in evidence. Defendants offered no evidence, and the court rendered judgment against them for the amount of the Chicago judgment, with interest and costs. Defendants bring the case to this court for review upon writ of ■error.

Errors assigned by defendants necessary to be stated are as follows:

“Defendants claim that the municipal court aforesaid did not have jurisdiction to render said judgment for the reasons: (1) That the alleged warrant of attorney was void and insufficient to confer jurisdiction upon said court. (2) That the said municipal court never obtained jurisdiction over the said defendants.”

Upon the face of the judgment of the Chicago municipal court, it appears that it was rendered upon a warrant of attorney to confess judgment made by the defendants, and it also sets forth the instrument relied upon, which contains both the authority for confessing such judgment and the note or contract which is the evidence of the demand for which such judgment was confessed.

The only proof introduced by plaintiff in this suit upon the judgment was the certified transcript of it, and the statute of Illinois establishing the municipal court. It is admitted that no process was issued in the case where the judgment was secured, and that defendants were both citizens of Michigan.

It is contended by appellants that the instrument in suit in the Chicago court was a Michigan warrant of attorney, and was therefore insufficient to confer jurisdiction. To establish this contention, defendants invoke the provisions of our statute (§ 10299, 3 Comp. Laws), which provides:

“ Judgments may be entered in any circuit court in vacation as well as in term, upon a plea of confession, signed by an attorney of such court, although there be no suit then pending between the parties, if the following provisions be complied with and not otherwise:
“1. The authority for confessing such judgment shall be in some proper instrument, distinct from that containing the bond, contract or other evidence of the demand for which such judgment was confessed,” etc.

This statute has been in force for many years in this State, having been embodied in the compilation of 1857. This fact is a strong indication of the policy of this State, evidently for the protection of the unwary. The necessity to conform with the requirements of this statute has never been questioned.

If on this instrument, called a note, a valid judgment by confession on this warrant of attorney could not be entered in this State, we must ascertain by what metamorphosis it acquires validity for that purpose when presented to a court in another State. The two undertakings executed in Grand Rapids, Mich., contained in one instrument, were separate undertakings: The first a promissory note for $850, payable 18 months after date at the First National Bank, Chicago, Illinois, with interest, etc.; the second a warrant of attorney to confess judgment.

There is no dispute about the validity of this promise to pay or its enforceability. It was to be performed in Chicago, and its performance and matters respecting the remedy for enforcement would be regulated by the laws of Illinois. We find difficulty, however, when we consider the warrant to confess judgment contained in this note as of force and efficient in the State of Illinois. It was an illegal agreement where made, and, if not an exception to the general rule, it is illegal everywhere.

This general proposition is stated as follows:

“The validity of the contract, that is, the question whether the contract is a legal or illegal one, is judged by the law on the subject in the State or country in which the contract is entered into; the general rule being that a contract good where made is good everywhere, and a contract invalid where made is invalid everywhere.” 9 Cyc. p. 672, and cases cited from many States, including lili-. nois and Michigan.

See, also, 1 Beach on Modern Law of Contracts, §§ 584, 595. There are a few exceptions to this general rule, but the contract under consideration is not within them.

The fact must not be lost sight of that this was not a suit regularly brought upon the agreement to pay. As already stated, the judgment relies entirely upon the warrant of attorney to confess judgment. No cases are called to our attention in the briefs, nor have we been able to find any exactly in point.

The question was not before this court in First Nat. Bank v. Garland, 109 Mich. 515 (67 N. W. 559, 33 L. R. A. 83, 63 Am. St. Rep. 597), as is claimed. In that case a judgment was taken by confession of attorney in Ohio upon a note of $5,000 made in Ohio, and containing a warrant of attorney to confess judgment, which was valid in that State. The suit in this State was brought upon that judgment. The holding of this court was, as is stated in the headnote:

“A warrant of attorney, purporting to authorize ‘ any attorney at law ’ to confess judgment on a note in any court of record,’ is sufficient to sustain a judgment entered in a court of the State in which the warrant was executed, on confession of an attorney of such court, even though the warrant could be given no extraterritorial effect.”

And the court said:

“* * * In our opinion, the warrant of attorney was such as to confer necessary jurisdiction.”

We are dealing in the instant case with a warrant of attorney to confess judgment which is absolutely void in this State, and it so appears upon transcript of the judgment upon which this suit is brought. We conclude that, as a matter of law, the judgment sued upon was void upon its face, because founded upon a void warrant of attorney. To hold otherwise would be to hold against the letter and spirit of the statute invoked, and the decision of this court. Trombly v. Parsons, 10 Mich. 272. It would operate to nullify this statute and bring about a condition which this statute was intended to avoid, and would be contrary to public policy. Notes could be obtained by fraud, and judgments obtained in another State upon void warrants of attorney and suits brought upon such judgments, and the maker of the notes cut off from all defense.

The excellent briefs of counsel and the cases cited have been examined. Our view of the case does not require that they be further discussed; nor is it necessary to consider the other questions raised. Our determination disposes of the case.

The judgment is reversed, and no new trial granted.

Hooker, Moore, McAlvay, and Blair, JJ., concurred.


text:
    PATRONS’ MUTUAL FIRE INSURANCE CO. OF MICHIGAN, LIMITED, v. ATTORNEY GENERAL.
    1. Insurance — Mutual Benefit Associations — By-Laws—Arbitration — Exhausting Remedies.
    By-laws of a mutual fire insurance company providing for a permanent board of arbitration to be appointed from the members of the association as a board of' appeal, and for the appointment of an adjusting board of three members to report on the loss and the claim of insured, and providing that the board of arbitration shall have exclusive jurisdiction and their finding-shall be final, are valid and do not conflict with 2 Comp. Laws, § 7296, authorizing suit after 60 days from the date that a claim shall become due.

      2. Same.
    As no claim can become due under the policy until the board' of arbitration shall award it, the by-law does not oust the courts of jurisdiction.
    3. Same — Compromise and Settlement — Arbitration.
    Such arbitration tribunal is lawful and in the absence of bad faith its decision is final.
    Mandamus by the Patrons’ Mutual Fire Insurance Company of Michigan, Limited, against Franz C. Kuhn, attorney general of said State, to compel the approval of amended articles of association of the relator.
    Submitted March 18,1911.
    (Calendar No. 24,494.)
    Writ granted July 5, 1911.

      G. O. Leibrand (Thomas, Cummins & Nichols, of counsel), for relator.

      Franz C. Kuhn, Attorney General (A. P. Hicks, of counsel), for respondent.
   Bird, J.

The relator instituted this proceeding to compel the respondent to approve its amended articles of association, in compliance with section 7292, 2 Comp. Laws.

The relator company became a corporation in March, 1902, by virtue of Act No. 262, Pub. Acts 1895 (2 Comp. Laws, §§ 7287-7301). At its regular annual meeting held in December, 1910, it amended its articles of association, and when in due form submitted them to the attorney general and requested his certificate that the amended articles were in conformity with the act under which it was organized. The amended articles provide for an adjusting board of three members to be appointed by the president and secretary. They further provide for an arbitration board composed of three members to be appointed by the directors, to which an appeal may be taken by the company or a member in the event that either party is aggrieved by the decision of the adjusting board.

The duties and powers of the adjusting board are defined as follows:

“(c) The duties of said adjusting board shall be to investigate the standing of the losing member in his subordinate grange, his compliance with the policy contract, the justice of his claims, the validity of his policy, the cause of the loss and the liability of the company, and to fix the amounts and valuations of property lost, and shall make a full report of their proceedings and findings to the secretary of the company.
“(d) If required, the loser shall submit to a full examination under oath by the adjusting board or, in case of an appeal, by the board of arbitration, of all matters pertaining to said loss, his application for insurance, his policy, his membership in the grange, his standing as regards dues, etc. And if there be any fraud or evasion on his part with fraudulent intent, the claimant shall forfeit all claims for such loss under his policy.”

The duties and powers of the board of arbitration are:

“ When an appeal is taken to the board of arbitration, said board shall investigate, try, hear and decide upon the justice of the claim, the validity of the policy, the liability of the company and fix the amounts and valuations of the property lost or destroyed, and no suit at law or in equity shall be commenced or maintained by any loser or the company to determine the justice of the claim, the validity of the policy, the liability of the company or to fix amounts or valuations, but the board of arbitration shall have exclusive jurisdiction to determine all controversy between the loser and the company, and such determination shall be binding and conclusive upon any such loser and the company.”

The application blanks for insurance contains the following clause:

“ I accept this insurance subject to the articles of association and the rules and regulations and by-laws of said company, now in force or that may hereafter be in force.’

In its policy the company agrees to pay “as specified in the articles of association and by-laws as printed hereon, and which are, together with the application, a part of this policy and agreement.”

After examination of the articles by the attorney general, he declined to certify that they were in conformity with the statute, and assigned the following reasons for his refusal:

“ (1) That "they are in contravention of section 10 of the act under which petitioner is incorporated, which section provides that ‘ suit at law may be prosecuted and maintained by any member against such corporation for claims which may have accrued, if payments are withheld more than 60 days after such claims shall become due.’
“ (2) That the provisions in said amended articles relative to an adjusting board and board of arbitration are invalid for the reason that they operate to oust the courts of jurisdiction, and hence are contrary to well-settled rules of public policy.”

The respondent makes the point that the act under which the relator is organized provides that “suit at law may be prosecuted and maintained by any member against such corporation for claims which may have accrued, if payments are withheld more than sixty days after such claims shall have become dueand argues that the charter provision that “no suit at law or in equity shall be commenced or maintained by any loser or the company to determine the justice of the claim,” etc., is an infringement of the statute. This precise question seems to have been passed upon in Hembeau v. Knights of Maccabees, 101 Mich. 161 (59 N. W. 417, 49 L. R. A. 592, 45 Am. St. Rep. 400), and approved in Raymond v. Insurance Co., 114 Mich. 393 (72 N. W. 256), where it is said:

“ ‘ This is not a case of an attempted exclusion of remedy by the legislature, but a case where the parties have agreed that only on certain terms and under certain conditions shall a member be entitled to receive any benefits, or the beneficiary named be entitled to receive any sum in case of the death of the member.’
“We cannot distinguish between this case and one that arises upon a certificate of a mutual benefit society insuring life. The language used in the cases cited seems equally applicable to this. Nor can we say consistently that the bylaw is inconsistent with section 4258 of the statute, which only mentions claims that have become due. By the terms of the contract this claim has not become due, and could not, unless a sum should be awarded by the arbitrators.”

The case of Raymond v. Insurance Co., supra, was one where the defendant was organized under this act, and the same questions were raised as are here raised, and they were disposed of by the court adversely to the respondent’s contention. We think this question is ruled by the holding in that case.

The objection that the clause in the articles which provides that no suit at law or in equity shall be commenced or maintained by any loser of the company to determine the justice of the claim, etc., operates to oust the courts of jurisdiction, is likewise answered by the Raymond Case.

The doctrine is well established in this State that members of a voluntary society may set up a tribunal to adjust the differences that arise between the association and its members, and make its decision final in the absence of bad faith or a refusal to act or to pay after an adjudication has taken place. Van Poucke v. St. Vincent de Paul Society, 63 Mich. 378 (29 N. W. 863); Canfield v. Knights of Maccabees, 87 Mich. 626 (49 N. W. 875, 13 L. R. A. 625, 24 Am. St. Rep. 186); Hembeau v. Knights of Maccabees, 101 Mich. 161 (59 N. W. 417, 49 L. R. A. 592, 45 Am. St. Rep. 400); Fillmore v. Knights of Maccabees, 103 Mich. 437 (61 N. W. 785); Raymond v. Insurance Co., 114 Mich. 386 (72 N. W. 254); Russell v. Benefit Association, 116 Mich. 699 (75 N. W. 137).

We are therefore of the opinion that the relator’s amended articles are within the statute and decisions of this State. The writ will issue as prayed.

Hooker, Moore, McAlvay, and Brooke, JJ., concurred.


author: Moore, J.

text:
    PATEK v. PATEK.
    1. Injunction — Appeal and Error — Preliminary Order — Supreme Court Practice — Issuance after Appeal.
    In a suit to follow a trust fund into the hands of the receiver of a national bank, after the denial of an injunction in the lower court, the Supreme Court, on appeal, may grant complainant’s application, renewed upon different grounds, for an injunction restraining the receiver from removing the funds out of the jurisdiction of the court.
    2. Same — National Banks — Receiver.
    Pending the determination of the ownership and right to the alleged trust funds, the court has jurisdiction to restrain the removal thereof from the State by the receiver.
    Application by Julius J. Patek for a temporary injunction in a suit in which petitioner is complainant and Bertha Patek, First National Bank of Iron wood, and Philip Tillinghast, as receiver thereof, are defendants, to restrain the removal of trust funds from the State pending an appeal by complainant. Order to show cause issued March 13, 1911.
    Submitted April 14, 1911.
    (Calendar No. 24,329.)
    Writ granted July 5, 1911.

      Julius J. Patek, in pro. per.

      Chester Gf. Rogers (P. Tillinghast and Herb M. Norris, of counsel), for defendant Tillinghast.
   Moore, J.

The bill of complaint in this case is filed for the purpose of following what complainant claims is a trust fund which should inure to, his benefit. Pending an appeal to this court, and after the case reached this court, the appellant applied for a temporary injunction against the receiver, to restrain him from transmitting said trust fund beyond the jurisdiction of the court.

Three objections are made:

(1) That a like application was refused in the circuit court, thereby bringing the case within section 431, 1 Comp. Laws.
(2) The Supreme Court has no original equity jurisdiction and cannot issue writs of injunction.
(3) A State court cannot issue an injunction affecting the property of a national bank.

A reference to the original bill of complaint will show that the prayer for a writ of injunction was not the same. There was no claim there that the property was to be removed.

This is not a proceeding where the Supreme Court takes original equity jurisdiction. The case originated in the circuit court. Pending its appeal here, it is claimed that an emergency has arisen requiring a temporary injunction, if the decree, should one be made in favor of complainant, is to be effective. Under such circumstances this court is frequently called upon to grant temporary injunctions, and does grant them.

It must be conceded that there is a great conflict in the authorities. The complainant claims that the restraining order will not affect the property of a national bank, but will prevent the receiver of the bank from removing beyond the jurisdiction of this court a trust fund in his hands which never belonged to the bank, but which does belong to complainant.

We quote from the brief of counsel:

“ The only cases in point that we were able to find in the books are those of American Can Co. v. Williams, Receiver, the record in which is on file in this court, reported last in 153 Fed. 882, 82 C. C. A. 628, and Capital Nat. Bank v. First Nat. Bank (five cases), 172 U. S. 432 (19 Sup. Ct. 202). On granting an injunction in the first mentioned or on continuing the injunction granted in that case by the State court, Hazel, J., says:
“ ‘An injunction restraining the payment by the receiver of the Fredonia National Bank of the amount of plaintiff’s claim, to the comptroller of the currency of the United States, is on consideraation of the question presented not thought contrary to the spirit of section 5234 U. S. Rev. Stat. [U. S. Comp. Stat. 1901, p. 3507]. A restraining order merely suspends payment by the receiver of the funds in the jurisdiction of the court until the action is terminated, and the plaintiff’s right established. The question for determination at the trial of the action is whether the assets coming into the possession of the receiver at the time of his appointment, and when the bank suspended payment, were impressed with the trust mentioned in the complaint. A probable right of recovery is shown in the complaint, * * * and therefore, in view of the attitude of the defendant, or rather the comptroller of the currency, as shown by the correspondence set out, * * * I incline to the opinion that a case is presented for preserving the status quo during the pendency of the action.’
“And in affirming such action the court of appeals uses the following language:
‘“It is within the discretion of the trial court to retain the property within its jurisdiction until the questions at issue can be determined. To permit the property to be removed from the jurisdiction of the court is, in effect, deciding “in limine” that complainant has no cause of action.’
“And again, in Capital Nat. Bank v. First Nat. Bank, supra, the Supreme Court of the United States says:
“ ‘The decision did not purport to affeot the assets of the bank, or attempt to direct the distribution thereof, or in any way to interfere with the disposition of the assets actually belonging to the bank; nor did it affect the receiver as receiver, or his appointment or authority under the banking act. As the trial court found that certain moneys held by the bank in trust for plaintiff had come into the receiver’s hands, he was directed to return them, for he had no stronger title to the trust fund as against the plaintiff than the bank had.’”

This language appeals to us, and we are satisfied that funds which complainant claims belong to him, and not to the bank, should not be removed from the jurisdiction of the court until the question who is entitled to the fund can be determined.

The temporary restraining order will be granted as prayed.

Ostrander, C. J., and Bird, Hooeer, and Mc-Alvay, JJ., concurred.


text:
    PATEK v. PATEK.
    1. Trusts — Banks and Banking — Debtor and Creditor — Deposit.
    Averments of a bill of complaint representing that complainant’s wife, without his knowledge or consent, while he was absent from home, deposited funds of clients, held by him, in defendant national bank, that neither complainant nor his wife had deposits in the bank, establish the contention that title to the money never passed to the bank so as to create the relation of debtor and creditor.
    2. Same.
    And it was immaterial that the bank had no notice or knowledge that the deposit belonged to third parties.
    3. Same — Insolvency.
    Although the funds may have been mingled with the general funds of the bank, complainant is entitled to a lien upon the entire fund upon a bill showing that the bank which became insolvent had on hand an amount in excess of the deposit at all times since it was made.
    4. Same — Intermingling Trust Funds.
    Money subject to a trust and intermingled with other funds is presumed to have remained intact as long as a sufficient amount remained to satisfy the lien of the cestui que trust.

    5. Same — Discovery.
    And the complainant was entitled to a discoverynotwithstanding that he waived an answer under oath in his bill of complaint.
    Appeal from Gogebic; Cooper, J.
    Submitted April 14, 1911.
    (Docket No. 55.)
    Decided July 5, 1911.
    Bill by Julius J. Patek against Bertha Patek, the First National Bank of Ironwood, and Philip Tillinghast, as receiver of defendant bank, for a discovery and other relief. From a decree sustaining a demurrer to the bill of complaint, complainant appeals.
    Reversed.

      Julius J. Patek, in pro. per.

      Chester C. Rogers (Herb M. Norris and P. Tilling-hast, of counsel), for defendants.
   Bird, J.

The bill of complaint in this cause was filed to establish a trust relation and to obtain a temporary injunction. A demurrer was interposed and sustained, and complainant appeals.

The allegations of the bill in substance are: That complainant is a lawyer and practicing his profession at Ironwood, in this State; that on April 3, 1909, just prior to departing on a business trip, he came into possession of $1,000 belonging to one of his clients, and placed it in a trunk in his dwelling; that during his absence, and on the 7th day of April, 1909, his wife, who is a native of Bohemia and who knows little about our language and business methods, took the money from the trunk and gave it to one of her small boys, with directions to take it to one of the three banks then doing business in that city. The boy took the money and delivered it to the defendant bank and was given a savings book, showing that Bertha Patek had deposited $1,000 in the bank. That complainant was away from home much of the time until June 19th, when he was first informed of the deposit by his wife. That on June 20th the bank was closed by the Federal authorities because of its insolvency, and Philip Tillinghast was appointed the receiver thereof. It is alleged that neither he nor his wife was a depositor at defendant bank, and that his wife had no title nor interest in the money, and had no authority to remove the money from the trunk and deposit it in the bank, and that it was done without his knowledge or consent.

It is further alleged that the amount of the bank’s funds turned over to the receiver was far in excess of said $1,000, and that the funds of said bank were always, from the time it received the deposit down to the time it went into the receiver’s hands, far in excess of said sum of $1,000. It is charged in said bill that the relation of debtor and creditor, with, reference to said sum of $1,000, never existed between the said bank and the complainant, and it is further charged that the said sum in the hands of the said bank and now in the hands of the defendant receiver constitutes a trust fund in favor of the complainant, and that in equity and good conscience the same should be paid to the said complainant as a preferred claim.

By way of relief the complainant prays that said fund may be declared a trust fund, and that the defendant receiver be directed to recognize it as such; that defendant Bertha Patek may be decreed to surrender said savings book into court; that the defendant receiver be required to make a complete discovery and disclosure of the assets and liabilities of said banking association on the 6th day of April, 1909, and at other times between that date and the date on which it went into the hands of a receiver; and that until the final hearing the defendant receiver be restrained from disposing of the fund or assets of said bank, and for general relief.

The grounds of demurrer are:

(1) That it appears by the complainant’s own showing by the said bill that he is not entitled to the relief prayed for in said bill against this defendant.
(2) That it appears by the complainant’s said bill that there is no privity between the complainant and the First National Bank of Ironwood, or this defendant, the receiver thereof, to enable the complainant to call upon this defendant for the payment of any debt claimed to be due to the complainant from the First National Bank of Ironwood.
(3) That the complainant has no right to call upon this defendant in a court of equity for a discovery of matters and things alleged in paragraph B, subdivision A, of the prayer of the said bill of complaint, for the reason that there are no allegations in said bill of complaint that entitle the complainant to any discovery of the matters and things alleged in the said subdivision A of paragraph B of the prayer of said bill of complaint.
(4) That said bill of complaint of the complainant is wholly without equity.

The complainant alleges and offers to prove that the money deposited was his money, and that his wife, without any authority, caused it to be delivered to the defendant bank without his knowledge or consent; that she had no title nor interest in the money, and that neither was a depositor in the defendant bank. If the complainant is able to establish these facts, we think he is right in his contention that title to the money never passed from him to the bank, and that the relation of creditor and debtor never existed between them as to said fund. Burtnett v. National Bank, 38 Mich. 630; Cady v. Omaha Nat. Bank, 46 Neb. 756 (65 N. W. 906). And the rule is the same, even though the depositary had no notice or knowledge at the time the deposit was made that it was the money of another. Burtnett v. National Bank, supra; Union Stock Yards Nat. Bank v. Campbell, 2 Neb. (Unof.) 72 (96 N. W. 608); Van Alen v. National Bank, 52 N. Y. 1.

It is argued by defendant that, as the bill shows that the deposit has been mingled with the general funds of the bank, it has become dissipated, and, in consequence thereof, complainant must share with the general creditors of the bank. We cannot agree with counsel in this contention. When complainant shows that the general funds of the bank have been in excess of the amount deposited at all times since the deposit was made, he establishes the presumption that his money is-still in the possession of the bank. Under such circumstances, his claim would become a lien upon the whole fund. Sherwood v. Savings Bank, 103 Mich. 109 (61 N. W. 352); Emigh v. Earling, 134 Wis. 565 (115 N. W. 128, 27 L. R. A. [N. S.] 243); State v. Bank of Commerce, 61 Neb. 181 (85 N. W. 43, 52 L. R. A. 858); Butler v. Bank, 159 Fed. 116, 86 C. C. A. 306. In Sherwood v. Savings Bank, where a like contention was made, Mr. Justice Hooeeb said:

“ If the trust actually existed, and the identical fund received had been intact when it came into the hands of the receiver, it would have been subject to the petitioner’s claim. Why should it bo any less so, if it is clear that the fund into which it went (such fund being money legally belonging to the bank) never was reduced to the amount of the trust fund ? The bank could not complain, for the decisions are numerous that the claim of the cestui que trust would become a lien upon the entire fund when the intermingling occurred, and the law would presume that the trust fund was not paid out as long as an equal amount remained.”

We are of the opinion that the bill of complaint states a case calling for equitable relief.

The third ground of demurrer is that complainant is not entitled to the discovery prayed for in his bill, for the reason that in his bill he has waived defendant’s answer under oath. We think the point is not well taken. That seems to be the rule where discovery is the only relief prayed. Torrent v. Rodgers, 39 Mich. 85. The prayer for discovery in this case is only incidental to other relief prayed for; therefore the rule does not apply.

The order sustaining the demurrer is reversed, and the cause remanded for further proceedings. Complainant will recover costs of both courts.

Ostrander, C. J., and Hooker, Blair, and Stone, JJ., concurred.


author: Ostbandeb, C. J.

text:
      In re McNAMARA’S ESTATE. MICHIGAN TRUST CO v. McNAMARA.
    1. Trial — Demand for Jury — Practice — Continuance — Adjournment to Subsequent Term.
    On the adjournment of a cause at the request of appellant’s attorney for a week during which a new term commenced, at which the cause was noticed for trial and a jury demanded, although no demand for a jury had been filed at the term during which the cause was originally noticed for trial, the cause properly stood for trial as a nonjury case and a jury was properly refused to appellant.
    2. Same — Executors and Administrators — Estates of Decedents.
    • It is for the court, not for a jury, to determine whether fees paid to commissioners on claims by the administrator of an estate and amounts disbursed for legal services were reasonable.
    3. Appeal and Error — Saving Questions for Review — Exceptions — Assignments of Error.
    Objections made on appeal to proceedings on the trial of an administrator’s account, not based on exceptions and assignments of error, are not considered in the Supreme Court.
    4. Estates of Decedents — Commissioners on Claims — Fees.

      Held that the conclusion of the trial court allowing extra compensation to the commissioners on claims was supported by the evidence.
    5. Same — Special Account — Res Judicata.
    Where a special administrator, in presenting a final account, included therein, as estimated liabilities, fees due to attorneys and after the allowance of the final account in probate court and, pending an appeal from the order of such court, filed a petition showing the items due for attorney’s fees, praying leave to pay the same when funds might become available, the order of the probate court granting petitioner’s prayer, and not appealed from, was final.
    6. Same — Extraordinary Services — Discretion.
    Only a manifest abuse of the discretion of the circuit and probate courts being reviewable on error, in allowing extra compensation to an administrator, the allowance of $380 for extraordinary services upon a record showing unusual services performed by the administrator is affirmed.
    Error to Kent; Perkins, J.
    Submitted June 7, 1911.
    (Docket No. 11.)
    Decided July 5, 1911.
    The Michigan Trust Company presented its annual account as administrator of the estate of Mary McNamara, deceased, in the probate court for the county of Kent, by which the account was allowed. J ames McNamara appealed to the circuit court. Judgment was entered affirming the order of the probate court. Contestant brings error.
    Affirmed.

      Francis W. Balcomb (Emil B. Gansser, of counsel), for appellant.

      Thomas P. Bradfield (Kleinhans & Knappen, of counsel), for appellee.
   Ostbandeb, C. J.

The probate court for the county of Kent approved and allowed the first annual account of the Michigan Trust Company as general administrator of the estate of Mary McNamara, deceased. From the order and determination of the probate court, James McNamara, an heir at law, appealed to the circuit court for the county of Kent. In that court the account was investigated without the aid of a jury, and with the result that the order of the probate court was affirmed. The court made and filed findings of fact and law. Appellant proposed certain amendments to the findings of fact and law which were not allowed. -He excepted to the findings and to the refusal of the court to amend them. Twenty-two errors are assigned, and are discussed in the brief for appellant under seven heads.

When the cause came on to be heard on December 9, 1909, appellant claimed the right to a trial by jury, and a jury was refused. The cause was noticed for trial at the September, 1909, term of court, and was regularly on the nonjury calendar for that term. On December 1, 1909, which was during the September term, the cause was reached and was adjourned to December 2d at the request of appellant because of the absence of his attorney. On December 2d there was a substitution of attorneys for appellant; the attorney then appearing asking for a delay of a week to enable him to become familiar with the facts. The cause had also been noticed for trial at the December term, and upon the giving of that notice a jury was demanded. The December term of court began December 6, 1909. It is apparent that the cause was not brought to trial upon the notice which was given for its hearing at the December term, but upon the notice for the September term of court. It is not claimed that it was reached upon the December docket or was set or called for trial as a cause standing upon the December docket. The trial should have begun during the September term. The cause was in fact called during that term, and the trial adjourned at the request and for the convenience of appellant. All of the proceedings relate to a cause for the trial of which no jury had been demanded.

Aside from this, we think there was no question of fact for a jury to determine. It is said in the brief that the amount of compensation to be paid to the commissioners on claims and the amounts to be paid to certain attorneys for legal services depended upon the reasonableness of the charges, and that whether they were or were not reasonable was a question of fact for a jury. Under repeated decisions of this court, some of which are referred to in this opinion, it was for the court, and not for a jury, to determine whether the disbursements referred to in the brief should be allowed.

The administrator’s account covers a period of more than one year. It is said in the brief for appellant that the account is not sufficiently itemized, for which reason fair opportunity was not afforded to appellant to examine the account and the witnesses called in relation thereto. The contention does not appear to be based upon an exception or upon an assignment of error, and is not discussed.

It is said that improper evidence was offered by appellee and admitted over the objection and exception of appellant. We cannot under our rules discuss this contention. It appears by the record that certain testimony was admitted over the objections of appellant and that exceptions followed the rulings, but we find no errors assigned upon the exceptions.

The court found that the fees allowed the commissioners on claims for their services were reasonable. At least three claims presented to commissioners were contested. The statute (3 Comp. Laws, § 11228) provides for the fees of commissioners, and that they ‘ ‘ shall have such further compensation as the probate court, after such notice as such court shall direct to the parties interested in the premises, shall deem proper and by an order shall allow.” The probate court allowed the fees as they were paid by the administrator. There was testimony given in the circuit court tending to prove that the amounts charged by the commissioners were not unreasonable, and we see no occasion for disturbing the conclusions of the probate and circuit courts.

It appears that the Michigan Trust Company as special administrator of this estate filed a final account which was heard and approved January 25, 1908. It turned over the estate then in its hands as special administrator to itself as general administrator. Thereafter it filed its petition for the allowance of certain attorney fees for services rendered to the special administrator. The petition was brought on for hearing and the claims allowed by the probate court. We learn from the briefs that an appeal was taken from the allowance of the final account of the special administrator in which these items for attorney fees were mentioned as estimated liabilities, and it was then ruled that they were not included in the final account, and could not be litigated upon that appeal. The general administrator paid these accounts after their allowance by the probate court, and appellant now objects that they were in fact rendered for the special administrator, were charged against it personally, and have never been allowed against the estate in favor of the special administrator. . It is not pointed out how the special administrator could, with certain matters in litigation when it filed its final account, have done more than to call the court’s attention to the fact that services had been performed for it by attorneys as special administrator, to estimate the liabilities for such services, and thereafter, upon the coming in of the accounts and their allowance by the probate court, pay them, putting an account of the disbursement into the annual account. The time for litigating these claims was when the matter was pending in the probate court upon the special petition of the administrator for their allowance. The probate court had jurisdiction, and no appeal was taken from the order which was made.

It seems to be contended that the personal representative of this estate has filed too many petitions in the probate court for the allowance of claims and charges; that theoretically such a course of conduct might be oppressive, requiring parties in interest to perfect a multitude of appeals. It is said that the Michigan Trust Company filed its final account as special administrator January 25, 1908; that almost immediately thereafter it filed its petition as administrator for the allowance of several thousand dollars as attorney’s fees; that it filed its annual account, which was approved April 18, 1909, and thereafter filed its special petition praying for the allowance of attorney’s fees rendered during a period covered by the annual account but not included therein; and, lastly, that as late as September, 1910, it filed its special petition for the allowance of attorney’s fees for services not included in the prior annual account, although rendered during the period thereof. W e think it is unnecessary to do more than to state the contention of the appellant. We find no claim made in the brief that the services to which the various items of expenditure relate were not rendered, were not valuable, or that the amounts charged were not reasonable.

The administrator was allowed for extraordinary services $880, in addition to a statutory fee of $156.80. It is contended that the testimony wholly fails to prove that the services rendered were in any sense .extraordinary. If there are circumstances disclosed which call for the exercise, first by the probate court, and upon appeal by the circuit court, of the discretion which with respect to the allowance of fees to administrators and others is reposed in those courts, nothing but a manifest abuse of such discretion will be reviewed by this court. It is the application of this rule which forbids leaving to a jury the determination of the reasonableness of the compensation to be allowed in such cases. Mower’s Appeal, 48 Mich. 441, 451 (12 N. W. 646); Loomis v. Armstrong, 63 Mich. 355, 364 (29 N. W. 867); In re Brewster’s Estate, 113 Mich. 561 (71 N. W. 1085); In re Pfeffer’s Estate, 117 Mich. 207 (75 N. W. 454); In the Matter of Fischer’s Estate, 158 Mich. 1 (122 N. W. 257). There was testimony tending to prove the performance of services unusual and uncommon in their nature by the administrator. The probate court and the circuit court upon appeal were required to determine whether extra compensation should be made for such services and to what amount.

No error is found. The order and judgment of the circuit court is affirmed.

Bird, Hooker, Moore, and McAlvay, JJ., concurred.


author: Ostrander, C. J.

text:
    RUGGLES v. MERRITT.
    Trusts — Real Property — Accounting—Notice.
    Where complainant and another invested funds for their principal, under an agreement in writing providing that title should be taken to all real property in the principal’s name, he to retain title to the land if so required for five years, and, upon selling the property, should account for one-half of the net profits, no interest in the lands was created, but merely an interest in the proceeds; so that upon the conveyance to a third party subject to the agreement, and upon his death purchasers of the land from the heirs of decedent could not be compelled to aocount for proceeds under the agreement of which they had notice.
    Appeal from Manistee; Withey, J.
    Submitted April 10, 1911.
    (Docket No. 65.)
    Decided July 5, 1911.
    Rehearing denied September 29, 1911.
    Bill by Charles E. Ruggles against James E. Merritt, Nellie Merritt, and the Buckley & Douglas Lumber Company, for an accounting. From a decree overruling demurrers to the bill of complaint, defendants appeal.
    Reversed.

      Norris & McPherson, for complainant.

      Wilson, Wilson & Pice, for defendant Buckley & Douglas Lumber Co.

      Geo. E. & M. A. Nichols, for defendant Merritt.
    The bill of complaint was filed April 25, 1910. The case made by the bill may be briefly stated as follows: A writing was made by one D. W. Bradley, dated April 8, 1867, reciting that D. D. and C. F. Ruggles were to proceed to locate and purchase pine timber lands, and marsh, and cause the same to be entered in the name of, or to be conveyed to, D. W. Bradley and to make no charge or claim against the land or against Bradley for their services and expenses in that behalf. Bradley was to furnish money to pay for the land — not less than $2,000 — ■ hold the land for a term of five years if the Ruggleses required him to do so.
    “And the party of the second part hereby agrees and stands bound to the parties of the first part, to pay over to them or account to them, the parties of the first part, for one-half of the balance of proceeds of said land, or of the sale thereof, after being reimbursed for all payments for and expenditures on said land as aforesaid with interest on the same, meaning hereby one-half of net profit derived from the same.”
    Subsequently, and before May 2, 1868, lands were purchased in accordance with the agreement so recited and title was taken in the name of Bradley, and specific descriptions of land given in the bill amounting to 240 acres. These lands were conveyed May 2, 1868, by Daniel W. Bradley and his wife, by quitclaim deed, to William H. Bradley, the deed reciting that as a part consideration for the lands the grantee undertook to carry out the said contract of the grantor. Complainant succeeded to all the rights of Daniel D. Ruggles in the profits arising out of lands purchased under the contract.
    On or about April 8, 1872, the accounts between William H. Bradley and complainant were adjusted and settled in such manner that thereafter they became equally interested in the proceeds of said lands thereafter received, subject to allowances for advancements and disbursements thereafter made by either. William H. Bradley died, and his heirs and devisees conveyed the described land, on or about November 28, 1903, by quitclaim deed, to defendant Nellie Merritt. The deed conveyed also about 1,800 acres of other lands, the consideration being $500. The timber on 200 acres of the described land and on about 120 acres of other land was conveyed by Nellie Merritt, by warranty deed, to defendant Lumber Company, on or about September 15, 1904, for a consideration of $6,549. Complainant is advised and believes that defendant James E. Merritt negotiated for the transfer from the Bradley heirs to his wife Nellie and received and retained all or some of the proceeds derived from the sale by her to defendant Lumber Company. Complainant is also advised, and believes and therefore charges, that Nellie W. Merritt, because of the recital in the deed from Daniel W. to William H. Bradley, “by reason of the inadequacy of the consideration paid for the lands conveyed to her by the heirs of said William H. Bradley * * * by reason of the fact that the conveyance to her was by quitclaim deed, and by reason of other facts and circumstances of which she had knowledge, obtained and holds said lands * * * and the proceeds thereof,” subject to complainant’s rights to have an accounting therefor and to receive a portion thereof, and that James E. Merritt in so far as he received the proceeds holds them subject to an accounting with complainant. The defendant Lumber Company purchased with full knowledge of complainant’s interest and “with knowledge of such facts and circumstances as to charge it with notice ” that the Merritts intended to appropriate the entire proceeds of the lands to their own use without accounting to complainant for any portion thereof. None of the defendants have accounted and paid over to complainant any part of the proceeds of said lands or timber. For relief it is prayed that the said defendants account to complainant for his interest in the proceeds. Defendants Merritt demurred to the bill and defendant Lumber Company filed its separate demurrer. The demurrers were overruled, with leave to answer. Upon various grounds, the demurrers challenge the sufficiency of the bill, and so far as may be necessary these will be noticed.
   Ostrander, C. J.

(after stating the facts). From the facts stated, and admitted by the demurrers, it follows that the original agreement was fully performed by the Ruggleses during the life of Daniel W. Bradley; it was partly performed by Mr. Bradley, who furnished the money. What remained to be done was to sell and convey the land and upon accounting pay over to the Ruggleses a portion of the profits, if there were profits. A sale and conveyance by Bradley involved no exercise of a conferred, or a reserved, power, but the act of an owner, unrestrained, at least after five years, by any duty or obligation growing out of the contract relation except the duty of fair dealing. In no event, and according to no legal theory, had the Ruggleses any interest in the land, nor was the land charged with any trust. The interest of the Ruggleses was an interest in proceeds of sales to be made. Petrie v. Torrent, 88 Mich. 43 (49 N. W. 1076); Carr v. Leavitt, 54 Mich. 540 (20 N. W. 576 ). This relation of the parties has not changed.

We shall assume that it was by consent of complainant that William H. Bradley was introduced to the contract relation, and that it was mutually understood that he should be substituted for Daniel W. Bradley with respect to the contract duty to divide the profits derived from sales of the land. It is said that upon the death of William H. Bradley the legal title to the lands descended to his heirs, subject to a trust in complainant’s favor, and Fowle v. Barnes, 99 Mich. 8 (58 N. W. 63), is relied upon to support this contention. In that case the bill was filed to compel executors to come to an accounting for proceeds of sales derived by the testator and his executors from sales of real estate, to secure a sale of real estate unsold, and a division of proceeds. There was involved nothing more than the enforcement of a contract relation, personal in nature, but relating to the proceeds of sales of certain lands. In the case at bar, it would have been eminently proper for the complainant to have taken similar action upon the death of William H. Bradley. If he had in his lifetime sold any of the lands, the profits remaining undivided at his death, complainant’s demand for such profits would have been one against his estate. And as to lands unsold we think it was equally the duty of complainant, instead of permitting a settlement of the estate, and a sale of the lands for the benefit of the estate, or the beneficiaries thereof, to have filed his bill against the representatives of Mr. Bradley to secure a sale of the lands and a division of proceeds in accordance with his alleged contract rights; to have compelled execution in full of a contract partly executory, because the estate of Mr. Bradley, as to its real extent and value, was affected by the contract with the complainant. Assuming that the duty to perform the contract devolved upon the legal representatives of Mr. Bradley and upon his heirs and devisees, it was still a duty to sell the land, acting in good faith, and divide the proceeds with complainant. Complainant’s relation to the land did not change. And if the representatives, or the heirs, sold and conveyed the land, we can conceive of no reasonable theory according to which the contract duty could be devolved upon successive grantees until such time as the complainant chose to ask for an accounting. For the purposes of this case it is immaterial whether the conveyances were warranty or quitclaim deeds. It is material that the beneficiaries of the estate of Bradley sold the lands and were immediately liable to account to the complainant. These grantors are not made parties to the bill. It is not charged that the sale made by them was fraudulent. If fraudulent, it is not plain how any but the parties to the fraud could be held re-* sponsible. We are not advised by the bill of the manner of administering the estate of William H. Bradley, if it was administered, and we do not decide that the heirs of Mr. Bradley, or his devisees, owed to complainant a duty to account for any portion of the proceeds of the land in question. What we do decide is that, assuming that the contract obligation became their obligation, the duty to account became fixed when they sold and conveyed the land, and successive grantees, although having knowledge of the duty, are not required to ascertain at their peril whether they have or have not accounted.

We sustain the demurrer of defendants Merritt upon the fourth and fifth grounds assigned therein and the demurrer of defendant Lumber Company upon each of the grounds therein assigned. The order and decree of the court below is reversed, with costs of both courts. Complainant may have 30 days after entry of decree in this court to amend the bill.

Bird, Hooker, Blair, and Stone, JJ., concurred.


text:
    BRANDAU v. BRANDAU.
    Divorce — Alimony—Homestead.
    In a decree divorcing complainant and her husband and awarding as alimony one-half the personal property which belonged to the husband and requiring her to deed to defendant the homestead held by the entireties on complainant’s being paid $500, the provision for her should be increased by awarding to complainant all the household furniture and requiring a payment of $800 as a condition of the execution to him by her of the deed.
    Appeal from Wayne; Donovan, J.
    Submitted April 13, 1911.
    (Docket No. 106.)
    Decided July 5, 1911.
    Bill by Dorothea Brandau against Henry Brandau for divorce. From a decree awarding complainant alimony, she appeals.
    Modified and affirmed.

      Charles M. Hammond (McGregor & Bloomer, of counsel), for complainant.

      Btellwagen & MacKay, for defendant.
   Ostrander, C. J.

Complainant has appealed from so much of the decree of the court below as awards her alimony. The defendant is a mechanic. After the marriage of the parties in 1899, and up to the time they separated in 1908, they had accumulated the following property, namely: Some household furniture, variously estimated to cost from $230 to $400 or $500, but to be worth now much less than its first cost, and a home, consisting of a piece of real estate and a dwelling, which cost $1,675 and is assessed, for the purposes of taxation, at the sum of $1,420, and the present value of which is stated by different witnesses to be from $1,550 to $2,000. The title to this property is held by the husband and wife by entire-ties. There are back taxes on this property amounting to $150. There is testimony tending to prove that considerable repairs must be made to the dwelling to make it properly habitable. There is one child, a daughter. The decree of the court below divides the household furniture and fixtures equally between the parties. It requires the complainant to execute to the defendant a deed to the real estate upon the payment by the defendant to the complainant of $500.

Without setting out the testimony, which we have reviewed with some care, we think, with respect to both of these provisions, the decree should be amended. It is stated in the briefs of counsel that since the decree was made the husband has voluntarily offered to pay to the complainant for a deed of the real estate the sum of $750. We are of opinion that the complainant should be awarded all of the household furniture and fixtures. We find a fair value of the real estate to be not less than $1,600, and are of opinion that complainant should be permitted to pay defendant $700 and receive from him a conveyance of his interest in the homestead, or, upon the payment to her of the sum of $800 by the defendant, to execute to him a deed conveying her interest therein. If within 30 days she shall not have exercised her option, the defendant shall be entitled, upon the payment to her of $800, to a conveyance of complainant’s interest in the real estate.

In all other respects the decree below is affirmed. Appellant will recover the costs of this appeal.

Bird, Hooker, Blair, and Stone, JJ., concurred.