text:
    MOREHEAD MANFG. CO. v. ALASKA REFRIGERATOR CO.
    1. Contracts — Warranty— Dissatisfaction — Cause for Rejection — Rule.
    Where the subject-matter of a contract involves a question of individual taste or sentiment rather than of utility, the good faith of the party declaring his dissatisfaction cannot be inquired into; but where the subject-matter of the contract relates to a thing which is ordinarily desirable only because of its commercial value or of its mechanical fitness, it is held that the party must act in good faith and must be honestly dissatisfied.
    2. Same — Question for Jury.
    In an action by plaintiff on a written contract for certain material furnished for installation in defendant’s factory, guaranteeing that the system sold will “handle all of our exhaust steam and all of our live steam that we use for heating purposes throughout the dry kilns and entire plant, * * * making a saving of 5 per cent, in fuel daytimes and 20 per cent, increase of heat in daytimes on the fans, * * * reduce the back pressure on the engine one-third,” and agreeing that if-the equipment does not do the work as guaranteed plaintiff will remove the same without expense to defendant, on conflicting testimony the question of whether defendant arbitrarily and in bad faith asserted dissatisfaction and refused to accept and. pay for the equipment which in fact came up to the guaranty, because through information furnished by plaintiff’s agent defendant could get the desired results without it, was a proper question for the jury.
    3. Same — Evidence—Admissibility.
    The court below was not in error in excluding a book containing a record of temperatures taken two years before, where no record was kept for the intervening period, nor any evidence offered that the condition and equipment of the plant was then the same as when the contract was entered into.
    4. Same — Warranty—Trial—Instructions.
    An instruction by the court that the guaranty to “give 20 per cent, increase heat daytimes on the fans,” meant not the temperature in the kilns, as defendant contended, hut at the mouth of the tube or fans, held, not erroneous, since the sentence of simple words required no interpretation or evidence to determine its meaning.
    5. Same — Admissions—Evidence—Trial—Instructions.
    A letter signed by defendant’s assistant manager, stating that certain instructions as to changes to he made had been given to defendant’s engineer, and that the traps were then working O. K., keeping the system drained dry, was competent testimony for its bearing upon the issue, and upon defendant’s claim that it was obtained by subterfuge, that it was signed at the request of plaintiff’s agent without knowing its contents, and that defendant’s engineer had no knowledge of the letter, and never received any such instructions referred to, its weight was for the jury, and it was error for the court, in his instructions, to discuss said letter argumentatively, indicating his opinion as to its effect.
    6. Same.
    Where the testimony as to whether the warranty as to reduction of hack pressure had been fulfilled was conflicting, it was a question for the jury, and it was error for the court to discuss said question argumentatively, practically taking it from the jury.
    Error to Muskegon; Sullivan, J.
    Submitted June 13, 1918.
    (Docket No. 88.)
    Decided December 27, 1918.
    Assumpsit by the Morehead Manufacturing Company against the Alaska Refrigerator Company for goods sold and delivered. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Cross, Foote & Sessions, for appellant.

      Hatch, McAllister & Raymond and Willard J. Turner, for appellee.
   Steere, J.

Plaintiff is a corporation located in Detroit, Michigan, engaged in the manufacture of specialties for drainage of steam apparatus used for heating, evaporation, power purposes, etc., and issued a catalogue of its products in which was advertised what is called the “Morehead Trap” or “Morehead System” manufactured for that purpose. Defendant is a corporation located at Muskegon Heights, Michigan, engaged in the manufacture of refrigerators. In 1911, its plant was heated by exhaust steam which after performing its purpose in the engine was utilized to heat the feed water for its boilers and passed through heating coils into its dry kilns for curing or drying lumber.

Defendant’s engineer, Thomas Pedler, had requested and received a catalogue from plaintiff, which was accompanied by a letter stating that its agent, Mr. Crowley, would call upon defendant in reference to the matter if desired, to which defendant replied it would be agreeable for him. to call. Crowley was an engineer particularly experienced in matters relating to drainage of steam-heating apparatus, and under directions from plaintiff visited defendant's plant as soon as engagements permitted. As a result of their negotiations defendant sent plaintiff the following signed order:

“The Alaska Refrigerator Company,
“Muskegon, Michigan, 10/16/11.
“To The Morehead Manufacturing Company,
“Detroit, Michigan.
“Order No. 98.6N.
_ “Please ship us promptly to Muskegon, Michigan. via......................the following goods:
“Please enter our order for
“1 No. 5 Condenser
“1 No. 5 Return Trap
“1 No. 1 Return Trap
N"o« 1 Rbcgív©!*
“Price $775 f. o. b. Muskegon, Michigan.
“Your representative, Mr. Crowley, guarantees that this equipment mentioned above will handle all of our exhaust steam that we use for heating purposes throughout the dry kilns and the entire plant.
“He guarantees to make a saving of 5 per cent, in fuel day times and 20 per cent, increase in heat day times on the fans.
“Night times, holidays, and Sundays he claims a saving of at least 20 per cent, in fuel and 20 per cent, increase in the heat on the fans. He also agrees to reduce the back pressure on the engine one-third.
“The temperature of No. 3 and No. 4 kilns varies from 110° to 115° at the kiln; the temperature of No. 1 and No. 2 kilns is 140° to 150° at the kiln.
“This complete equipment is to be furnished subject to 60 days’ trial and subject to our approval, as per the guarantee above.
“Mr. Crowley agrees that if this does not do the work as he guarantees it, to remove the equipment without any expense to the Alaska.”

To which plaintiff responded on October 18th as follows:

“The Alaska Refrigerator Company,
“Muskegon, Michigan.
“Gentlemen,: Your order No. 9865 at hand and contents noted. The same will receive our very prompt attention. We note guarantees which have been inserted in this order and wish to congratulate your secretary on the same. We don’t think that he overlooked anything.
“We at' the same time beg to advise you that Mr. Crowley is a man who has had lots of experience in this line and knows the goods thoroughly, and knows how to install them, and knows what to do, and we cheerfully accept the conditions laid down by him, and we don’t doubt for a moment but he can do just Whát he says he can do.”

On Optober 20th defendant sent plaintiff the following supplemental order:

“Order No. 6543.
“Please ship us promptly to Muskegon, Michigan, by freight the following goods:
“4 — 3" Brass Rouse check valves
“2 — 1" Brass Rouse check valves
“Same as you recommended for our use.
“Mr. Pedler stated that you suggested buying these for us as you might be able to save us $2.00, or thereabouts, on a valve. We understand that these valves are necessary in installing your equipment, so kindly plan to order these for us, if that is the case, so they will be here when the other material arrives.”

This equipment was shipped on October -27, 1911, put into its plant by defendant, which was to make its own installation according to catalogue directions and instructions which Mr. Crowley had given when negotiating the sale while at Muskegon Heights.

On December 9, 1911, defendant wrote plaintiff complaining that the Morehead System which it had installed according to catalogue and as Crowley suggested was not working satisfactorily, the particular complaint being:

“The trap over the boilers does not take care of the water from the trap in the basement and is working continuously to get rid of the supply.’’

On December 12th, Crowley visited the factory and examined the installation to ascertain the difficulty, if any. He testified that the only trouble was due to a failure to follow instructions, 0but even as installed he found on testing it out the equipment was meeting the full requirements of the guaranty. Before leaving he gave further instructions and obtained the following paper, signed by defendant per J. L. Gillard, assistant of defendant’s general manager, who was then in charge of defendant’s office and had a hand in preparing the same, and who stated he did not think his right to sign defendant’s name on any business which came up in the office had been questioned during the past 15 years:

“Muskegon, Michigan, 12/12/11.
“Morehead Manufacturing Company,
“Detroit, Michigan.
“Gentlemen: Have given instructions to John Pedler to raise the trap as high as possible and also put 2-inch lines in boiler instead of 1%-inch and which will be done as soon as possible. The traps are working O. K. at the present time, keeping the system drained dry.
“We will follow up the above.
“Alaska Refrigerator Company,
“J. L. G.”

On December 27th defendant wrote plaintiff that the system was not giving results and it had discontinued its use, asking for instructions at once as to the disposition of the traps, following which Crowley again visited the plant, made thorough inspection and tests which showed, as he testified, that the apparatus when operated exceeded the guaranty, although his instructions as to raising the trap and use of a 2-inch pipe in boiler had not been followed; but he also discovered from conversations with Mr. Ford, defendant’s manager, and on inspection of the plant, that they had availed themselves of the information received from him, in regard to the proper method of draining steam apparatus as worked out by plaintiff, and applied it to defendant’s plant, securing the desired results without using the equipment bought from plaintiff. Of this he testified:

“In my conversation with Mr. Ford, Mr. Ford acknowledged that he was willing to pay me for my information for increasing the heat in their kilns, but he didn’t believe in paying for the traps. Through our demonstration they could see where they could get almost the same results, or practically the same results by taking my information and carrying on the old system, so he was willing to pay me for my information given them, but he wouldn’t pay for the traps. He didn’t make any claim that I know of at that time that we had failed to fill our guarantees because it had been proved that I had done what I agreed to. I told him I wasn’t selling information. I was selling Morehead steam traps. * * * On my tests there I found that they were using the by-passes open on the pumps, which is the same as I recommended on my traps.”

Without direct reference to Crowley’s testimony as to such proposal, Ford testified in general denial:

“I have no knowledge that any ideas were suggested by these machines or by Mr. Crowley that were utilized in continuation of the old system of heating. * * * The matter of the steam plant and the kiln and the heating system and the electric light system is left with the chief engineer.”

On January 24, 1912, defendant wrote plaintiff:

“We have made further tests of your traps, and we find we can get better results with our oWn pumps and have accordingly discontinued the use of the traps and would ask you to kindly .send us shipping instructions.”

Claiming that the equipment it furnished fully complied with the guaranty plaintiff demanded payment and on refusal brought this action for the contract price in the circuit court of Muskegon county where on trial by jury it recovered verdict and judgment for the same.

Defendant’s assignments of error include the proposition that by the terms of the contract it had an absolute right to reject the equipment as unsatisfactory and a verdict should therefore have been directed in its behalf as requested; that testimony offered by defendant was erroneously rejected and the charge as given was erroneous in the court’s construction of the contract, and various other specified particulars.

Upon the first proposition defendant contends that by the terms of the contract it had the option, and absolute right as a matter of Jaw, to determine whether the equipment was satisfactory to it and if not to reject the same under the ruling in Wood Mowing Machine Co. v. Smith, 50 Mich. 565 (45 Am. Rep. 57), and analogous cases cited; while plaintiff contends that the subject-matter of the contract was only desirable for mechanical fitness and value in increasing the efficiency of a manufacturing plant, involving no question of personal sentiment or individual taste, making the refusal a question of whether it was in bad faith or honest dissatisfaction because of failure to meet the guaranty an issue of fact for the jury under the testimony.

The contract provides that the equipment is to be furnished subject to defendant’s approval, “as per the guarantee above.” The guaranty above is that the system sold will “handle all of our exhaust steam and all of our live steam that we use for heating purposes throughout the dry kilns and entire plant, * * * make a saving of 5 per cent, in fuel day times and 20 per cent, increase of heat in day times on the fans, * * * reduce the back pressure on the engine one-’ third,” and agrees that if the equipment does not do the work as guaranteed plaintiff will remove the same “without any expense to the Alaska.”

Defendant based its refusal to accept the equipment on the ground that it did not do the work as guaranteed. Plaintiffs claimed that although not installed as directed, it did on thorough test prove to more than fill the guaranty. The testimony in the case was largely devoted to that square issue of fact. A claim was also made by plaintiff that defendant’s refusal to accept was arbitrary and in bad faith, it having availed itself of information furnished by Mr. Crowley which enabled improvements to be made in the plant to produce the desired result without utilizing plaintiff’s system, which was also a disputed question of fact.

The case of Wood Mowing Machine Co. v. Smith, supra, is discussed and the true rule stated in Hutton v. Sherrard, 183 Mich. 359 (L. R. A. 1915E, 976). This rule is also concisely stated in 13 C. J. p. 678, as follows:

“It would seem that, where the subject-matter of the contract involves a question of individual taste or sentiment rather than of utility, the good faith of the party declaring his dissatisfaction cannot be inquired into. But where the subject-matter of the contract "relates to a thing which is ordinarily desirable only because of its commercial value or of its mechanical fitness, it is held that the party must act in good faith and must be honestly dissatisfied.”

Under the claims of plaintiff and conflicting testimony, the question of whether defendant arbitrarily and in bad faith asserted dissatisfaction and refused to accept and pay for the equipment, which in fact came up to the guaranty, because through the information furnished by Crowley it could get the desired results without it, was a proper question for the jury.

Of the rulings upon objections to offered testimony, that most strenuously urged as error by defendant is the exclusion of a book which Pedler testified contained a record of temperatures kept by him in 1909 taken at No. 2 kiln, the fan, and at the return of the air coming back into the fan room. He testified that he also kept records of temperatures for 1910 and 1911 but they were lost when a new roof was put upon the engine room. A book which he produced showing records of temperatures taken in 1912, which he stated he started to take when Crowley was out there, was admitted in evidence against the plaintiff’s objection although copied from what he called the “pencil book” which was not offered, and defendant was allowed full latitude in whatever proofs and records it desired to offer as to temperatures and other matters relating to the equipment and operation of its plant at, and a reasonable time before, the contract was made, as well as after, but the court excluded the book for 1909 as relating to a too remote and disconnected period. We find no error in this ruling; the records in that book were made nearly two years before the contract was entered into, were followed by no continuing record of the intervening period or any evidence that the condition and equipment of the plant was then the same as when the contract was entered into.

It is further earnestly contended that the charge wrongly construed the contract and was made prejudicially unfair to defendant by argument in which the court practically decided questions of fact which should have been impartially left to the jury. Upon the warranty in the contract of an increased temperature of 20 per cent., the court instructed the jury that it meant not the temperature in the kilns as defendant contended but at the mouth of the tube or fans, saying in part:

“Now, still farther, to justify that conclusion, that is the very construction that the parties themselves put upon this contract, by the undisputed evidence in this case. Why do I say that? I say that because Mr. Pedler took Mr. Crowley out there at the time that he came to investigate and see if there was anything wrong, took him out to those flues, not out to the kilns at all, and pointed out the thermometer there, and there he took the readings of the thermometer, at that place, so that it is the construction that was placed by the parties upon the meaning of that contract, so that you are to take that.”

While perhaps unnecessarily stressed by argument, this instruction was not erroneous as applied to the warranty to which it was directed — to “give 20 per cent, increase heat day times on the fans.” That plain sentence of simple words requires no interpretation, or evidence to determine its meaning.

But unfortunately the charge was not limited in argument to construction of the contract. In dealing with the testimony the court by argument quite clearly indicated an opinion on important controverted facts which were for the jury.

Pedler testified that when installing the equipment he carefully followed the directions in the catalogue and instructions given by Crowley when the order was taken; that Crowley knew the size of the pipe going into the boiler and gave no instructions to change it. Crowley also admitted he did not then direct that it be changed. He testified that on December 12, 1911, when he visited the plant on defendant’s complaint, and wrote the letter of that date signed by Gillard, the equipment was filling the warranty although his instructions had not been followed. Gillard signed the letter at his request. It stated certain instructions had been given for changes, including a larger pipe. Pedler testified he did not know what the letter contained, was not consulted when it was written,' and did not promise to put in the two-inch pipe; that he did raise the trap higher as suggested by Crowley when they were looking over the plant but had not changed the pipe. Gillard testified he knew nothing about the facts stated in the letter and signed it on Crowley’s plea that he “wanted a paper to show he had been there,” doing it primarily to show that fact and the date, and also with the idea of working out his suggestions. , .

The situation at that time is in marked dispute. Crowley testified that the equipment was working up to the warranty and plaintiff had then fulfilled its contract, although his instructions had not been followed. Pedler testified all instructions as to installment had been fully complied with and the equipment failed to better conditions in the particulars guaranteed. On the conflicting theories and testimony of both parties each had fulfilled its contract obligations and the other had not. This letter was competent testimony for its bearing upon the major issues of fact involved. It is claimed and denied that the letter was obtained by subterfuge. It was the function of counsel to argue and the jury to determine what weight should be given it in connection with all the other testimony in the case. The court emphasized and dwelt upon it partly as follows:

“And this last letter — it is all important; it all goes together — is important because it was written there in the office of the Alaska Refrigerator Company and concerning the single complaint that they had made in the letter before that, and there they say that that had been remedied, in writing, put it down in black an.d white, and there also was the promise to follow out the placing of those lines in the boiler, putting in a 2-inch pipe in place of an inch and a quarter pipe. They said they would follow up the above, and do whatever other suggestions was made by Mr. Crowley. They didn’t do that; they didn’t do that.”

Defendant contended that the warranty to reduce back pressure on the engine was not fulfilled. Plaintiff claimed that it was. Pedler and Crowley were the principal witnesses on that subject. Their testimony was in direct conflict in various particulars. Each assumed to explain the meaning of back pressure and manner by which it could be reduced. Pedler testified that in defendant’s plant they used a valve in the exhaust line, and explained how it operated for that purpose. Asked: “Q. What was the result of 'these traps with reference to that?” He replied: “It didn’t make any difference whatever.”

Crowley testified in relation to a vacuum in the system working to that end which he said did not necessarily have to be maintained through the whole system. Asked: “Where is this vacuum maintained?” He answered: “In the tank of the trap. Q. Is that over the entire system? A. No, sir; just on my condenser trap running back into the system of the tail pipes of the heater. Sometimes it recedes way back in the heater.”

It was contended by defendant that if there was not a continuous vacuum on the whole system the back pressure was not and could not be reduced one-third. Under the testimony as to scientific principles involved, methods and results, the question of meeting the warranty as to reduction of back pressure was clearly one of fact. This the court discussed argumentatively and practically took from the jury, saying in part as follows:

“It isn’t enough for a man to say that the back pressure was reduced. That is simply a conclusion. But in relation to matters of this kind it would be very easy indeed to go into this matter and make an experiment to determine whether the back pressure was reduced or not, very easy to know how much the back pressure was before those traps were installed. They have told you how that might be done in relation to the safety valve that they had there, and they haven’t shown any change as far as that is concerned. I call that to your attention. They had the right and it was easy for them to make experiments to determine about those other matters, but they haven’t made any experiments or anything of that kind, and, as I said before, a simple conclusion made by a witness, even Mr. Pedler, that the back pressure was not reduced is not sufficient, because the pressure before the time of the guarantee and the pressure after the time of the guarantee was material, and it is for the defendant to show by some proof that the court tells the jury should be accepted as proof in relation to that matter.”

The court did not, however, specifically point out to the jury what proof should or could be accepted in relation to that matter.

More or less argument of the facts along similar lines runs through the court’s discussion of the testimony in this lengthy charge, disclosing views or impressions from which a jury would unavoidably be advised of the court’s opinion as to issues of fact. In McDuff v. Journal Co., 84 Mich. 1, it is said:

“Appellate courts must presume that one occupying so important a position as that of circuit judge can influence a jury.”

This charge considered as a whole in the light of the verdict following its tenor leads to the conviction that such was the case here; which prejudicially deprived defendant of its right to a fair trial of the facts in dispute by a jury whose sole duty it was to independently determine them under applicable principles of law impartially given by the court without argument of facts. Hine v. Commercial Bank, 119 Mich. 448; Walts v. Walts, 127 Mich. 607.

The other errors assigned do not call for serious consideration or are such as not likely to occur upon a retrial.

The judgment is reversed, with costs, and a new trial granted.

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


source: Caselaw Access Project

author: Fellows, J. Bird, J.

license: Public Domain

text:
    LUDWIG v. BRUNER.
    1. Banks and Banking — Joint Deposits — Survivorship — Statutes — Joint Tenancy in Personalty.
    Under Act Noi 248, § 3, Pub. Acts 1909 (section 8040, 2 Comp. Laws 1915), money deposited in a bank payable to husband or wife “either or the survivor,” on the death of the wife becomes the sole property of the husband.
    2. Joint Tenancy — Personal Property — Survivorship.
    Joint tenancy in personal property with its right of survivorship does not exist in this State.
    3. Same — Estates op Decedents — Husband and Wipe.
    Where a husband and wife, on the sale of a farm held by them by the entireties, took a purchase money mortgage “as joint tenants,” the husband as survivor of his wife did not take title to her interest in the mortgage, in the absence of testimony tending to establish a gift 'inter vivos or one causa mortis. Bird, Moore, and Brooke, JJ., dissenting.

      See note in L. R. A. 1917C, 550.

      Appeal from Kalamazoo; Weimer, J.
    Submitted January 11, 1918.
    (Docket No. 51.)
    Decided December 27, 1918.
    Bill by Samuel D. Ludwig against Henry W. Bruner, executor of the last will of Sarah E. Ludwig, deceased, to determine the title to a certificate of deposit and a mortgage. Defendant filed a cross-bill for an accounting. From a decree for defendant, plaintiff appeals.
    Affirmed in part, and reversed in part.

      David Anderson, for plaintiff.

      W. J. Losinger, for defendant.
    On October 9, 1883, plaintiff purchased a farm in St. Joseph county, Michigan, taking title thereto in his own name. On January 17, 1885, the title to said farm was placed in “Samuel Ludwig & Sarah E. Ludwig, husband and wife, as joint tenants.” At the time, the title to the farm was placed in the names of plaintiff and his wife as tenants by the entireties, Mrs. Ludwig contributed a considerable portion, perhaps more than one-half of the value thereof, which was used to pay off the mortgage thereon. From January 17, 1885, until December 11, 1914, a period of almost 30 years, plaintiff and his wife lived upon said farm. On the latter date they sold it for $3,500. Of this sum there appears to have been paid $1,800 in cash and a purchase money mortgage was given by the vendee to the vendors for $1,700. This mortgage runs to “Samuel Ludwig and Sarah E. Ludwig as joint tenants.” The mortgage was made collateral to a promissory note for the same amount in which the payees are described as in the mortgage. Of the $1,-800 paid in cash, $1,750 was at once deposited in the Kalamazoo County State Bank of Schoolcraft under a certificate made payable to “Samuel or Sarah E. Ludwig, either or the survivor.”
    On August 30,1915, Sarah E. Ludwig executed with proper legal formalities a last will and testament by the terms of which she gave, devised and bequeathed all her estate both real and personal to her husband, the plaintiff herein, so long as he should live, with remainder over to her brother, Henry W. Bruner, defendant herein. On September 22, 1915, Sarah E. Ludwig died. Her will was admitted to probate without objection on the part of the plaintiff and a contest immediately arose between plaintiff and defendant, as administrator of Sarah E. Ludwig’s estate, as to the ownership of the certificate of deposit and the mortgage described. Plaintiff herein filed his bill in which the foregoing facts were set up and prayed that defendant be required to show by what right or title he claimed any of said securities or personal property. To this bill defendant filed an answer and cross-bill in which he prayed that plaintiff be compelled to account to defendant, as executor of the will of Sarah E. Ludwig, for said securities. The learned circuit judge filed an opinion in the case, by the terms of which the estate of Sarah E. Ludwig was held to be the owner of an undivided one-half of the proceeds of the certificate of deposit and of the mortgage, and a decree was entered in conformity with such opinion. From this decree plaintiff appeals.
   Fellows, J.

(after stating the facts). SO' far as the certificate of deposit is concerned, we must hold that the court was in error, and that the property in the same rests solely in the plaintiff. There is not sufficient evidence in the case to lead us to conclude that the presumption created by the statute (Act No. 248, § 3, Pub. Acts 1909; 2 Comp. Laws 1915, § 8040) has been overcome. That act is applicable to the instant case. In re Rehfeld’s Estate, 198 Mich. 249; People’s State Bank v. Miller’s Estate, 198 Mich. 783; Powell v. Pennock, 198 Mich. 573.

Touching the mortgage I think a different situation is presented. There is no testimony establishing or tending to establish a gift inter vivos or one causa mortis. This court has repeatedly held that in the absence of proof sufficient to establish either a gift inter vivos or causa mortis the survivor in case of joint title in personal property does not take the entire title by such survivorship. Wait v. Bovee, 35 Mich. 425; Luttermoser v. Zeuner, 110 Mich. 186; Burns v. Burns, 132 Mich. 441; State Bank of Croswell v. Johnson, 151 Mich. 538. These cases and others which might be cited establish to my mind the doctrine in this State that joint tenancy in personal property with its right of survivorship does not exist. I fully discussed this question in the recent case of Hart v. Hart, 201 Mich. 207, and shall not here repeat what was there fully considered.

I am impressed that under our decisions, neither by force of the language here employed or by force of the law, did the defendant as survivor of his wife take title to her interest in this mortgage. The doctrine of stare decisis, in my judgment, prevents us from holding that the defendant here takes the entire mortgage.

Wait v. Bovee, supra, was written over 40 years ago. It laid down a rule. It was a rule of property which has been followed by this court without deviation ever since. In the instant case the mortgage runs to the husband and wife “as joint tenants”; in the case of State Bank of Croswell v. Johnson, supra, the certificate of deposit was indorsed with a direction to issue a new certificate to the husband and wife “or the survivor of them.” Had the argument here advanced by my Brother Bird been there accepted by this court there would have been no occasion to there consider the questions of fact involved. But this court there declined to deviate in the slightest degree from Wait v. Bovee and expressly stated:

“Our decisions that the law of survivorship does not apply in the case of joint ownership of personal property does not affect the right of a donor to make a gift to his surviving wife.”

—and held that the transaction there involved partook of the nature both of a gift inter vivos and of a gift causa mortis. In Burns v. Burns, supra, the deposit originally stood in the name of the husband; by his direction the wife’s name was added, the husband saying, “That it was as much her money as it was his money.” The money was held to belong to the husband’s estate.

I doubt that it may be said to be a matter of common knowledge that many married people iñ every community are holding their personal property in supposedly joint tenancies. I think it may be a matter of common knowledge that many of them have their savings deposited in banks payable to them or either or the survivor of them, or words of similar purport. The legislature of the State has taken cognizance of this fact and has provided a rule of evidence in such cases. Section 8040, 2 Comp. Laws 1915. But it has gone no farther. If, in legislative wisdom, it should go farther and apply such rule of evidence to personal property generally, affirmative action by that co-ordinate branch of the government should be required. This court should not reverse a rule of property which has been unquestioned for over 40 years, and under which, rights of creditors of decedents have, been protected and no small amount of revenue by way of inheritance taxes has been contributed to the support of the State government.

I think the decree of the court below as to the certificate of deposit should be reversed, and as to the mortgage should be affirmed. Plaintiff should have his costs in this court, but neither party should recover costs of the hearing at the circuit.

Ostrander, C. J., and Steere, Stone, and Kuhn, JJ., concurred with Fellows, J.

Bird, J.

{dissenting). I am in accord with 'Mr. Justice Fellows’ conclusion in this case that the certificate of deposit is the sole property of the plaintiff, but I am unable to subscribe to his conclusion that plaintiff owns only an undivided half of the mortgage. It is my opinion that upon the death of his wife the plaintiff, as survivor, became the sole owner of both the bank deposit and mortgage.

The common law recognized joint tenancy in both real' and personal property. 1 Cooley’s Blackstone (4th Ed.), pp. 180, 399. At common law when a conveyance was made of either real or personal property to two or more persons, it was construed to be in joint tenancy and it was, therefore, necessary in creating an estate in common to use some words indicating such an intention. Pruden v. Paxton, 79 N. C. 446; 38 Cyc. p. 5. Early in the history of our jurisprudence the legislature reversed this rule as to real estate and provided that a conveyance of real estate to two or more persons should be construed as an estate in common unless expressly declared to be in joint tenancy. And this is the law today. Section 11562, 3 Comp. Laws 1915. Analogous to this legislative rule with reference to real property this court promulgated a like rule with reference to personal property and refused to construe conveyances of personal property to two or more persons as joint tenancies. Wait v. Bovee, 35 Mich. 425; Luttermoser v. Zeuner, 110 Mich. 186. These cases have gone no further, however, than to refuse to recognize joint tenancies in' conveyances where there 'was nothing beyond the designation of the names of the parties to indicate the kind or quality of the estate intended to be conveyed. In Wait v. Bovee nothing appears in the mortgage aside from the joint names to indicate the nature of the tenancy, and the same is true of the case of Luttermoser v. Zeuner, although there is some language in the opinion of the latter case which might lead to a different conclusion. The mortgage in that case was offered in evidence but only the following appears in the record:

“Mortgage, ordinary form, given by Fairview Land Company April 12, 1893, consideration $15,470, to Carl Frederick Zeuner and Johanna Rebecca Zeuner, on 19.47 acres of land in Springwells, Wayne County, Michigan.” R. & B., June Term, 1896, Docket No. 8, p. 20.

Inasmuch as the question of joint tenancy was involved in those cases I assume if there had been any language of the parties indicating that the mortgage was to be held in joint tenancy, it would have appeared in the record. No case of this court has been called to our attention where it has refused to recognize the right of parties to make such an agreement if they chose, and it has enforced such conveyances of personal property where it was clear from the instrument that it was intended to be owned in joint tenancy. An illustration of this is the late case of Negaunee National Bank v. Le Beau, 195 Mich. 502. In this case a father made' a deposit in a bank for himself and his daughter. The deposit appeared upon the books of the bank in the following form:

“The sum deposited to this account belongs to
Signature: “Euchrist Le Beau,
“Sophia Charles,
jointly: it being understood each may withdraw on his or her individual order during their joint lives, and that any balance upon the death of either shall belong to the survivor.
(Signed) “Euchrist Le Beau,
(Signed) “Mrs. Ed. Charles.”

The right of the daughter as survivor to take the deposit after the death of her father was contested, and upon reaching this court it was said:

“In this case it is not necessary to predicate determination upon the fact that the passbook prior to the death of Euchrist Le Beau was in possession of the donee and to draw an inference from that possession that the same was given to her in his lifetime with the intention of giving her the fund represented thereby. He had already given her the fund by his unequivocal act at the moment the deposit was made.”

An attempt was made to sustain the right of the survivor to take the deposit by force of the provisions-of Act No. 248, Pub. Acts 1909, but opposing counsel questioned the constitutionality of that act. The court, however, laid aside this argument, saying:

“It is asserted by appellant that said statute, if applicable, is unconstitutional for various reasons assigned. Without casting any doubt upbn the validity of the legislation in question and following our usual practice, we decline to construe this phase of the question, being able to reach a determination of the issue involved upon other grounds.”

The right of the survivor to take the deposit was sustained and upon no other theory than that she was a joint tenant with her father and took the deposit as survivor. The daughter stood in the same relation to the deposit that plaintiff does to the mortgage in question. If the entire deposit was hers as survivor the plaintiff is sole owner of the mortgage as survivor. See In re Rehfeld’s Estate, 198 Mich. 249.

It is within the knowledge of nearly every practitioner that many married people in every community are holding their personal property as well as their real estate, as they think, in joint tenancy to avoid the trouble and expense of probating their estates. I am unable to see any valid reason wfcy such an agreement should not be enforced by this court where it appears upon the face of the conveyance that such was the intention of the parties. There is no statute prohibiting it, neither is there any rule of construction which has been followed by this court which would make such a holding inconsistent. Our court has simply refused to recognize the common-law rule in the creation of a joint estate in personal property, namely, that a simple conveyance of personal property to two or more persons creates an estate in joint tenancy, but the right of the parties themselves to create the relation by express words has never been denied, and is upheld by this court in Negaunee National Bank v. LeBeau, supra.

In other States where the common-law rule has been abrogated, as here, joint tenancy with its incident of survivorship is recognized where the parties themselves have provided for it. Joint tenancy has been abolished in the State of Georgia, but it is held that the doctrine will be recognized where it is created by act of the parties. In the case of Equitable Loan & Security Co. v. Waring, 117 Ga. 599 (62 L. R. A. 93, 44 S. E. 320), where a like question is discussed, it is said:

“While the doctrine of survivorship as applied to joint tenancies has been distinctly abolished and does not exist in this State, there is no law of this State that we are aware of which prevents parties to a contract, or a testator in his will, from expressly providing that an interest in property shall be dependent upon survivorship. Of course, all presumptions are against such an intention; but where the contract or will provides, either in express terms or by necessary implication, that the doctrine of survivorship shall be recognized, we know of no reason why a provision in the contract or will dependent upon such a doctrine may not become operative under the laws of this State. * * * In Georgia the mere creation of the estate in two or more persons never draws to it survivor-ship as an incident, and the presumption is in all cases that survivorship was not intended. But where, by express terms or necessary implication, a survivor-ship is provided for, the law of Georgia allows it to exist. This exact question has been passed upon in other States having statutes abolishing the doctrine of survivorship as applied to joint tenancies.. In Arnold v. Jack’s Ex’rs, 24 Pa. St. 57, the supreme court of Pennsylvania held that, though survivorship as an incident to joint tenancies had been abolished in that State, it might be expressly provided for by will or deed; Knox, J., in the opinion saying:
“ ‘But conceding that the right of survivorship as an incident of a joint tenancy, no matter how created, is gone, it by no means follows that this right may not be expressly given, either by a devise in a will or by grant in a deed of conveyance. It may cease to exist as an incident and yet be legally created as a principal.’ Citing authorities.
“In the case of Taylor v. Smith, 116 N. C. 581 (21 S. E. 202), the supreme court of North Carolina held that the act abolishing survivorship in estates in joint tenancy did not prohibit contracts making the right of the parties dependent on survivorship. In the opinion Avery, J., said:
“ ‘The act of 1784 abolishes survivorship where the joint tenancy would otherwise have been created by the law, but does not operate to prohibit persons from entering into written contracts as to land, or verbal agreements as to personalty, such as to make the future rights of the parties depend upon the fact of survivorship.’ ”

I think the decree should be reversed and plaintiff should be declared to be the sole owner of the bank deposit and mortgag’e. See, also, 17 Am. & Eng. Enc. Law (2d Ed.), p. 650, and cases cited. Plaintiff is entitled to his costs in this court.

Moore and Brooke, JJ., concurred with Bird, J.


author: Kuhn, J.

text:
    YOUNG v. PHILLIPS.
    1. Sales — Reservation of Title — Conditional Sale — Definition.
    A conditional sale, as that term is used and understood in the affairs of business, is an agreement for the sale of an article of merchandise or other chattel in which the vendee undertakes to pay the price, and possession of the article or chattel is immediately given to the vendee; but the property in — that is, the title to — the same is not to pass to the vendee until the purchase price is fully paid.
    2. Same — Remedies—Right to Sue — Passing Title.
    Under such contract, if the vendee fails to make the payments in accordance therewith, the vendor can immediately exercise his right to take the property, or he may sue upon the contract and recover for the unpaid purchase money; but by taking the latter position he makes the sale absolute. Button v. Trader, 75 Mich. 295.
    3. Same — Intent—Chattel Mortgage — Recording Contract.
    The giving of an instrument, in form purporting to reserve title in the vendor, where the intent of the parties is the giving of security, is in reality the making of an absolute sale with the retention of a lien by way of security, and must be recorded as a chattel mortgage under section 11988, 3 Comp. Laws 1915.
    4. Same — Reserving Title — Conditional Sale — Action to Recover Debt — Inconsistency—Remedies.
    If of the two elements, reservation of title and the right to maintain an action to recover the debt, the latter is missing, there is no inconsistency, and such contract is a pure conditional sale, under which the goods may be retaken by the vendor even from third parties, and the vendor may still have an action for breach of contract against his vendee.
    5. Same — Reserving Title — Intent—Chattel Mortgage.
    But if the instrument purports to reserve title and to give a right of action to recover the debt without passing title, the two being inconsistent according to the test in Atkinson v. Japink, 186 Mich. 335, it must be concluded that the intent of the parties was to make an absolute sale with the reservation of a lien by way of security.
    See notes in 64 L. R. A. 833; 35 L. R. A. (N. S.) 385; L. R. A. 1917D, 942.

      Error to Wayne; Davis, J., presiding.
    Submitted June 4,1918.
    (Docket No. 13.)
    Decided July 18, 1918.
    Reargued October 24, 1918. Former opinion affirmed December 27, 1918.
    Replevin in justice’s court by Mathew A. Young against Andrew T. Phillips and another for the possession of an automobile. There was judgment for defendants, and plaintiff appealed to the circuit court. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      Barbour, Field & Martin (Thomas G. Long and Stevenson, Carpenter, Butzel & Backus, of counsel), for appellant.

      Welsh, Bebout & Kahn, for appellee.

      William Van Dyke, amicus curiae.

   On Rehearing.

Kuhn, J.

The motion for rehearing was granted in this case because of the claim made that the tests announced in Atkinson v. Japink, 186 Mich. 335, were wrongly applied to the contract here in question, and that the rule announced in the opinion in this case (202 Mich. 480) was in conflict with previous adjudications of the law of conditional sales by this court. Counsel representing other interests than those immediately involved have been permitted to file briefs as amici curias, and the various contentions advanced by counsel have been fully argued and ably briefed. In our opinion, however, the presentation of the entire matter calls upon us rather to determine, not whether the present case was correctly decided, but whether or not the tests to be applied as set forth in Atkinson v. Japink were correctly announced.

The language of the various forms of conditional sale contracts which are in everyday use by business houses varies, but the underlying idea of, and the objects and purposes to be accomplished by all of these different forms of contracts are stated by counsel in their brief, in the main properly we think, and which we quote, with certain modifications, as follows:

“A conditional sale, as that term is used and understood in the affairs of business, is an agreement for the sale of an article of merchandise or other chattel in which the vendee undertakes to pay the price, and possession of the article or chattel is immediately given to the vendee; but the property in — that is, the title to — the same is not to pass to the vendee until the purchase price is fully paid.”

If, under such a pure conditional sale contract, the vendee fails to make the payments in accordance therewith, the vendor can immediately exercise his right to take the property, or he may sue upon the contract and recover judgment for the unpaid purchase money; but by taking the latter position he makes such sale absolute, in accordance with the decision in Button v. Trader, 75 Mich. 295. We may assume, then, that if the contract simply attempts to do what is set forth in this definition, there can be no question that the instrument is a conditional sale, and, under our recording laws, would not have to be recorded. But, when it becomes evident from the instrument itself that it was the intention of the parties not to create a pure conditional sale contract, but, as was said in Atkinson v. Japink, that the title to the property was retained in the vendor simply for security, thereupon the instrument loses its characteristics as a pure conditional sale and in reality becomes á “conveyance intended to operate as a mortgage of goods and chattels,” and must be recorded according to the terms of the recording statute. 3 Comp. Laws 1915, § 11988. We may have been, perhaps, unfortunate in the use of certain language in saying that the title is reserved for security only, because, under the present theory of a chattel mortgage, the title to the property remains in the mortgagor and the giving of the instrument does not transfer title. People v. Bristol, 35 Mich. 33; Grove v. Wise, 39 Mich. 163; Brink v. Freoff, 40 Mich. 613; Cadwell v. Pray, 41 Mich. 307; Haynes v. Leppig, 40 Mich. 602; Wilson v. Montague, 57 Mich. 640; Corbett v. Littlefield, 84 Mich. 35 (11 L. R. A. 95). So that the giving of an instrument, in form purporting to reserve title in the vendor, where the intent of the parties is the giving of security, is in reality the making of an absolute sale with the retention of a lien by way of security. It may be conceded that the state of the law was somewhat confusing before the decision in Atkinson v. Japink, supra, and it may be difficult to harmonize the various decisions of the court on this question, such as Fuller v. Byrne, 102 Mich. 461, and American Harrow Co. v. Deyo, 134 Mich. 639; but with the tests so clearly announced in the Atkinson Case, it seems to us that there should be no difficulty encountered in attempting to determine the character of any of this class of instruments by applying the tests therein set forth. We think that decision announced a rule and tests which can be readily applied and was of distinct value because of that fact. If, of the two elements, reservation of title and the right to maintain an action to recover the debt, the latter is missing, there is no inconsistency, and such a contract answers to the application of test 1 by remaining within that test, and the conclusion may be immediately drawn that there was no intention to make an absolute sale with the reservation of lien by way of security. Such a' contract becomes a pure conditional sale, under which the goods can be retaken by the vendor even from third parties, and the vendor may still have an action for damages for breach, of contract against his vendee, if he has suffered any such damage. But if the instrument purports to reserve title and to give a right of action to recover the debt without passing title, the two being inconsistent according to the test in Atkinson v. Japink, it must be concluded that the intent of the parties was to make an absolute sale with the reservation of a lien by way of security.

Being of the opinion that the case was properly decided according to the rules announced in Atkinson-v. Japink, it follows that we cannot arrive at any different result than heretofore announced, and the judgment is therefore affirmed.

Bird, Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. Ostrander, C. J., did not sit.


author: Ostrander, C. J.

text:
    VAN LONKHUYZEN v. DAILY NEWS CO.
    1. Libel and Slander — Justification—Res Judicata.
    On a former hearing of this cause (195 Mich. 283), this court held that the words complained of were libelous per se, and that whether they were justified — excused, warranted — because they were fair comment was a question for the jury.
    2. Same — Matters of Public Interest — Criticism.
    Where plaintiff published an article upon a matter of current public concern, criticising action of public officials, comment and criticism from those who held other views were invited or at any rate excused.
    3. Same — Burden of Proof — Fair Comment — Question for Jury.
    The onus is on plaintiff, where a defense of fair comment is raised, just as in any other case, to show that the words are reasonably capable of being understood as a libel on him, and it is for the judge to say whether the published article is capable in law of being a libel, and, the court having determined this point favorably to the plaintiff, then whether the words complained of are, or are not, fair comment, is essentially a question for the jury.
    4. Same — Right to Criticise — Newspapers—Privilege.
    In making the defense of fair comment, defendant had no benefit of privilege; the liberty of the press, unless affected by statute, being no "greater and no less than the liberty of every citizen; it is the right of every one, not the privilege of any particular one, to comment fairly and honestly on any matter of public interest.
    5. Same — Trial—Instructions.
    . The court should have instructed the jury that the article in question is libelous unless it is fair comment, and that whether or not it is fair comment was for them to decide, under proper instructions.
    6. Same — Evidence—Repetition oe Libel — Mauce—Damages.
    Evidence of repetition of the libel before suit was begun is admissible in aggravation of damages, and repetition after suit began and after a first trial may be proved as evidence of malice if the publication is not found to be in fact fair comment.
    7. Same — Evidence—Sele-Serving Evidence.
    It was error to admit in evidence, as tending to rebut malice, an editorial headed “Dr. Van Lonkhuyzen,” printed in defendant newspaper after the first trial of the case was ended in the circuit, since if regarded as favorable to defendant, it is self-serving evidence made by defendant in its own behalf, and is not in the “same class” as other articles published by defendant after the publication of the alleged libel, and offered by plaintiff to show malice.
    Error to Kent; Perkins, J.
    Submitted October 16, 1918.
    (Docket No. 56.)
    Decided December 27, 1918.
    Rehearing denied May 1, 1919.
    Case by John Van Lonkhuyzen against the Daily News Company for libel. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Dorr Kuizema and Smedley & Linsey, for appellant.

      Norris, McPherson, Harrington & Waer, for appellee.
    Upon a former trial of this cause, a judgment for the defendant, entered upon a verdict directed for defendant, was reversed and a new trial granted. 195 Mich. 283.
    There are two special defenses of which notice was given, one, justification, that—
    “The statements contained in the article entitled ‘Playing with Fire’ published by defendant in the Grand Rapids News on July 2, 1915, and alleged in plaintiffs declaration to be libelous, are true”;

      second, a privilege, or qualified privilege, in publishing the alleged libelous article. The defense of privilege relied upon is pleaded in the following form (it is called by defendant notice of the defense of privilege) :
    “That the conduct and motives of the said plaintiff and his acts and doings in composing and publishing in said ‘De Wachter’ the said article, ‘Spelen Met Vuur,’ and in causing the same to be widely circulated throughout the United. States among the citizens thereof, and in instigating the composition of the said communication addressed to the President of the United States, and in causing said communication to be published in said ‘De Wachter’ as aforesaid, and to be widely circulated among American citizeps generally, with the view and purpose of obtaining signatures of such citizens to said communication, and with the view and purpose of presenting the said communication to the President with such signatures, for the purposé and with the intent of influencing the government of the United States to act along the lines suggested in said communication were all believed by said defendant to amount to disloyalty to the'government of the United States, and to threaten the peace, neutrality and welfare of the nation; and the said acts and doings of the said plaintiff as aforesaid, and the matters therein involved, concerning which the said alleged libelous article was written and published by the said, defendant, were matters of great importance and of interest to all citizens of the United States and to the nation; and involved the welfare of American citizens generally, which American citizens could only be communicated with through the public press, and the acts, doings and motives of said plaintiff as aforesaid were the proper subject of discussion in the public press, and the said defendant believed, and does believe, that the said acts and doings of the said plaintiff, and the movement sought to be instigated thereby, amounted to a public misfortune and a serious injury to the community and the American citizens in general, and the defendant, so believing, in the said article alleged by plaintiff to be libelous, diácussed the said plaintiff’s said acts and doings and his conduct and motives in and about the same in good faith, and without malice, and made only such statements, observations and deductions in regard thereto as it believed, on due inquiry and reasonable grounds, and under the circumstances, to be true and just, and warranted by the acts and doings of said plaintiff.”
    It appears from the record of the case made at the former trial that defendant offered no testimony except as its manager was called by the plaintiff for cross-examination and gave testimony, that argument followed the making of the motion by defendant for a directed verdict, in the course of which counsel for plaintiff stated that the court must not infer from what had been said in argument that there was not, or might not be, a question of fact for the jury upon the question of privilege. In advising the jury of his conclusions, the trial court said, among other things:
    "There has been a motion made to take this case from the jury and direct a verdict for the defendant on the ground that the words used by the Daily News Company were not libelous and that the Daily News Company were justified in printing what they did print in view of what Dr. Van Lonkhuyzen had issued in his paper called De Wachter, an argument has been made, and it is the court’s view of the matter that the motion is well based and that you should be directed to return a verdict for the defendant without any further consideration of the case.” * * *
    The reasons so assigned by the court were challenged in this court by the plaintiff and appellant, who in the brief and in argument discussed them under the heads, (1) Was defendant’s article libelous per se, and (2) Were defendant’s words justified, and, aside from discussion of exceptions based upon rulings made by the court in admitting and rejecting testimony, were the points, and only points, urged. The defendant, in the brief, discussed these two principal points only, reversing the order and contending, first, that “the publication was justified,” and, second, that “the publication was not libelous.”
    Under the first of these heads, it was argued, without reference to authority, that—
    “It must be conceded that the editorial complained of contained a full and fair statement of all the facts upon which its inferences and deductions were based. It stated (1) that appellant was an alien owing no allegiance to the American flag; (2) that he had not taken out his first naturalization papers or signified his intention of so doing; (3) that he had instigated the circulation of a protest among Holland-Amerieans generally; (4) which protest rings throughout with dissatisfaction and doubt of President Wilson’s motives, and criticises him for the kind of diplomacy he has adopted in dealing with the question of German encroachments on American commerce.
    “None of these facts could either be disputed or complained of by appellant whose only complaint is that the inferences and deductions which the appellee drew as to the significance and effect of such acts and doctrines were not justified by the facts set forth in the editorial.
    “The Daily News expressed the opinion that an alien is not rightfully privileged to influence American citizens in their conduct of American public affairs; and that when such a one chooses a time of great stress and tension, when a crisis impends in which only great unanimity of public sentiment and loyalty to the government may avert war, to procure one great class of our citizens to make a public, organized assault upon the good faith and fairness of our officials in the conduct of diplomatic negotiations relating to such crisis, then that alien is not only a busybody, a meddler, and a spreader of distrust, discontent, and dissatisfaction in our government, but is a spreader .of un-Americanism and sedition.
    “It occurs to us, as it did to the trial court, that a political rather than a legal question is here involved, and that it requires nothing more than the instinct of American patriotism to judge as to the correctness of the appellee’s estimate of the appellant’s public conduct in taking the startling action that he took at such a peculiarly inappropriate time.
    “We respectfully submit that the trial court did not err in holding the publication justified on the admitted facts, and that the verdict was properly directed.”
    Under the second head, it was argued, in part:
    “The defendant dealt with the significance of appellant’s political doctrine and' neither attacked private character nor left doubt as to the basis of fact upon which its conclusions were based, whereby any person reading the article could assume that the defendant had other grounds for its conclusions than that which it had set up, or that private character was being commented upon. The defendant’s agents were not even acquainted with the plaintiff. Any person reading the article had all the facts upon which it was based before him. He was not bound to draw the same inferences therefrom which the defendant had drawn, but was at liberty to draw his own inferences and conclusions and agree or disagree with the logic of the defendant, as he saw fit.
    “Libel arises out of a false statement of fact and not from the inferences which may be logically drawn from a full, fair and true statement of fact, however uncomplimentary or unpleasant the inferences may be, and the defendant, after fully and fairly stating all of the pertinent facts in regard to the case, cannot be charged with libel for merely setting forth sincere and reasonable inferences and conclusions which follow therefrom.”
    It was decided, (1) that the court was in error in ruling that the language, a portion of which was,
    “The Rev. Mr. Van Lonkhuyzen is an interloper, a meddler, and a spreader of distrust, discontent and sedition,”
    was not libelous per se, and (2) that it could not be determined as matter of law that the libelous language was justifiable. It is also said, in the opinion:
    “In the case before us, the publishers were not satisfied to state the facts and allow the readers to draw their own conclusions, but followed it up by making the libelous statement for the very purpose, as admitted, to hold him up to scorn and ridicule. While the question of whether or not the limits of fair criticism have been transcended may sometimes be a question of law, ordinarily it is a question of fact for the jury, and we are satisfied that under all the facts and circumstances of this case the question of justification became one of fact for the jury to determine.”
    No question of privilege, or qualified privilege, was suggested, or debated, by counsel, as a question for decision by this court.
    Upon a second trial, a jury returned a verdict for defendant, upon which judgment was entered. Plaintiff, appellant, states in the brief that the evidence produced at both trials was substantially the same and refers, for a statement of the facts, to that made by this court on the former appeal. He adds, however, the following:
    “The defendant did not have any personal acquaintance with plaintiff at the time of the printing of the libelous editorial, and,
    “On July 29th, after defendant was sued, it caused a reprint of the editorial to be published on the first’ page of its paper.”
    Appellee adds to this reference and statement of facts the following excerpt from the testimony of defendant’s manager:

      “Q. State to the jury what your purpose was in writing — strike it out. In causing to be published this article in your paper, this editorial of July 2, 1915.

      “A. For the purpose of stopping the circulation of .a dangerous doctrine, at a critical time, because it was my duty as the head of this newspaper to comment on subjects of importance to the people and the nation at that time, for the purpose of stopping just such demonstrations as we are having at the present time. * * * Furthermore, for the purpose of doing what I thought was my duty, understanding as I did conditions in other lands and the conditions in this country. * * *

      “Q. You claimed and now claim that the issue involved was one of some national importance, did you not?

      “A. I do. * * *

      “Q. Whether they were true or untrue, they injure a man’s standing just the same, do they not?

      “A. I never knew the truth to injure any man’s standing. Did you ?

      “Q. I have heard of such things, but you wanted it to be understood by all the readers of your paper throughout Michigan that this man was an alien busybody?

      “A. As referring to his views, yes, sir; political views, his propaganda and his doctrines.

      “Q. You didn’t so state when you wrote the newspaper article?

      “A. Oh, that is all we talked about. You will' find no reference in the article to Dr. Van Lonkhuyzen’s personal standing and character.

      “Q. So now you believe, his personal standing is not injured at all?

      “A. I would not think so.

      “Q. Now, you knew that by commenting the way you did, it would offend Mr. Van Lonkhuyzen, didn’t you?

      “A. Yes, I knew that.

      “Q. And you knew it would be doing him as much damage as any one could with reference to his reputation and feelings?

      A. In connection with the subject.”
    And the following:
    “Mr. Johnson, the publisher, and Mr. Etten, the editor of defendant’s paper, were not personally acquainted with plaintiff and had no hatred or ill-will toward plaintiff at the time of the publication of the article in question.”
    Plaintiff, appellant, contends:

      “1. The court erred in charging the jury that defendant had a qualified privilege in publishing the libelous article. ,

      “2. The court erred in charging the jury that the question of justification was one of fact to be determined by the jury.
    “3. The court erred in refusing to charge the jury the only question for them to determine was the amount of damages.
    “4. The court erred in permitting in evidence the editorial dated November 4, 1915, headed, ‘Dr. Van Lonkhuyzen.’
    “5. The court erred in charging that the subsequent publications could only be considered as bearing upon the question of malice and not upon the question of damages.”
    Plaintiff is a clergyman and at the time referred to was co-editor of a church paper called “De Wachter.” In this paper, on June 16, 1915, appeared an article, written by him, entitled, “Playing with Fire.” In an issue of the same paper of June 80, 1915, appeared a protest or petition to the President of the United States, drawn by plaintiff and another minister of the same church — Christian Reformed Church. The petition was not signed by plaintiff, who was an alien, but was circulated among members of the church in the United States, and a large number of signatures obtained. On July 2, 1915, .defendant published the alleged defamatory article. Innuendoes omitted, the article, as set out in the plaintiff’s declaration, is as follows:
    “ ‘Playing with Fire.’
    “ ‘ “The dreadful world-war now waging, with its threat of involving us and with the very unhealthy upgrowth during the past 10 months of aggressive hyphenated Americanism in our own country has emphasized the need that we of this nation shall become wholly united. There should be no more hyphenated Americans. Each American of foreign birth or origin should show his good citizenship by being wholly and without reserve and without divided allegiance an American citizen and nothing else.”
    “ ‘portions of an article written by Theodore Roosevelt, the most distinguished of American citizens of Dutch extraction.
    “ ‘It is to be sincerely and deeply regretted that a number of residents of Grand Rapids, of Holland origin, have signed a protest which is to go to President Wilson criticising him for the kind of diplomacy he has adopted in dealing with the question of German encroachments upon American commerce.
    “ ‘They were led into this mares’ nest of un-Americanism by the Rev. John Van Lonkhuyzen, pastor of the Alpine Avenue Christian Reformed Church. The Rev. John Van Lonkhuyzen is not an American citizen. He has lived in this country only four years and has not yet taken out his first naturalization papers, nor even signified his intention of so doing.
    “ ‘In other words, hundreds of good American citizens have been led into a grievous error by an alien, who owes no allegiance whatever to the Stars and Stripes.
    “ ‘All Americans of Holland parentage will be asked to sign the paper to be sent to President Wilson, which will criticise and seek to embarrass' him, and which, at the same time, will reflect upon the good sense and patriotism of the entire Holland branch of our foreign born population.
    “ ‘The petition, or protest, or whatever it may be, relates that the President’s attitude of late is not entirely in accordance with the motive which directed him when he called for a day to be set apart for prayer. It asks that the exportation of arms be stopped and that the investigation of the Lusitania incident be all-sided — inferring that the President has been biased.
    “ ‘The protest rings throughout with dissatisfaction and doubt of President Wilson’s motives.
    “ ‘The whole muss was stirred up by the Rev. Mr. Van Lonkhuyzen in an article published in his church Weekly, “The Wachter,” entitled “Playing with Fire.” The article deeply criticised the American press, and criticised the American people for announcing that they would stand behind the President in any step he might take, claiming that all the citizens might not stand behind the President. It stated that public opinion had been poisoned, that one-sided actions had been taken and one-sided policies pursued. _ Mr. Van Lonkhuyzen, in closing his incendiary article, said:
    “ ‘ "It is highly necessary, therefore, that a powerful protest be brought against this one-sidedness and this stirring up of public opinion towards one side. We should prevent worse things than these while it is yet in our power.”
    “ ‘The News was somewhat amazed to find what virtually amounts to sedition in Grand Rapids. The first thing to do was to investigate the source. Consequently The News telephoned Mr. Van Lonkhuyzen, to find out his exact status.
    “ ‘ “Are you an American citizen, a naturalized American?” was asked.
    “ * “No, I am not an American citizen. I have never been naturalized,” he replied.
    ‘““Have you taken out your first naturalization papers?”
    “ ‘ “No. I have not taken them out yet.”
    “ ‘ “Do you intend to become a citizen of the United States, and do you intend making application for your first papers.”
    ‘““Ves, I intend to take out my first papers in the near future.”
    “ ‘ “How long have you resided in the United States?”
    “ ‘ “Pour years. If any more inquiries come to your office, tell them I intend to become a citizen in the near future.”
    “ ‘Another alien, much more famous and able than Mr. Van Lonkhuyzen, came over here a short time ago. His name was Dernburg, and he attempted to do some criticising of the manner in which our gov-eminent was being conducted. It was hinted to him that his presence in this country was undesirable, and he took the hint and departed for foreign shores.
    “ ‘Evidently all the foreign meddlers did not take advantage of this rather forcible lesson. Maybe Mr. Van Lonkhuyzen never heard about it, there seems to be so much that he doesn’t understand.
    “ ‘So far as Mr. Van Lonkhuyzen is concerned personally, it makes no difference, but the pity of the thing is that probably thousands of good, loyal Americans of Holland descent are putting themselves into a false light by signing the petitions criticising our President and doubting the sincerity of his motives.
    “ ‘The fact that the first organized criticism of President Wilson should emanate from Grand Rapids is no credit to the city.
    “ ‘We are ashamed of the petitions and we are ashamed of the Rev. John Van Lonkhuyzen, or, rather, we are ashamed of the fact that he should live here.

      “ ‘As he is an alien and nobody knows what fish he has to fry, it would seem that he should be the recipient of one of the famous hints from.headquarters such .as caused Dr. Dernburg to take his hat and go' back home.
    “ ‘We do not want trouble makers in America, whether they be English, French, Dutch, German or Japanese. The United States is today made up of a citizenry that is standing solidly behind President Wilson in his determination to protect our national honor. The Holland people have stood behind him until this plague of sedition broke out in the vicinity of Alpine avenue a few days ago.
    “ ‘Those who have signed these protests will be sorry for what they have done. Perhaps many of them signed without thinking. That is the most charitable view of the case to take. If the protests have not been forwarded to the President, they should be thrown into the fire.
    “ ‘The protest is a reflection upon the patriotism of every man who signs it. There has never been any reason to doubt the loyalty of American citizens of Holland birth. There should never be any reason.
    “ ‘The Rev. Mr. Van Lonkhuyzen is an interloper, a meddler, and a spreader of distrust, discontent and sedition. His protest against the “one-sidedness” of America’s policy of dealing with its foreign affairs should entitle him to an invitation to pack his grip and go back to Europe where he belongs.
    “‘If the. petition, or protest, ever does reach the President, the News will make sure, that Mr. Wilson will receive it in the full knowledge that it originated in the brain of a busy-body alien and that it does not represent the opinions of the loyal péople of Grand Rapids, be they natives or of Holland birth or extraction.’ ”
    The article in “De Wachter” and the petition to the President, which it is claimed by defendant caused and justified the alleged libelous editorial which it published, are here set out as pleaded by defendant:
    “ ‘Playing with Fire.’
    “ ‘Playing with fire — that is what the attitude of the American Press toward the war may well be termed. We see this, too, in Italy what the result is when passions are whipped up and gain the mastery. There the people do not rule but the government rules, although it be in the form of a constitutional monarchy. That government and thereby the nation was for many years bound by treaty with Germany and Austria. That nation under the alliance has grown great. It had enjoyed all the advantages. Just recently had it received a free hand, without right, to claim and take a part of Turkey in Africa. • It mixed, with Germany’s support in so doing a bitter drop in the cup of England and France, both having power and influence in the Mediterranean Sea and on the coast of Africa. Now, in the hour of danger, she reverses her position. With a faithlessness rarely found in history, Italy now, in this war of nations, throws her force against her allies who helped to make her great. Where is now the confidence and faith in one another. Moreover, bribed by a nation whose mouth is filled with Germany’s violation of treaties, and says, note well, and says that therefore she declared war upon Germany.
    “ ‘And what is the origin of all this in Italy? In a great measure, through the same means used here to fire the passions. The public press in Italy played continually upon the hatred against Austria.^ The government did not desire war. But finally it was obliged to yield before the storm. Otherwise (so constantly was the threat) there would be revolution and barricades erected. It was uttered publicly. It hissed members of the Royal Family publicly on the street. It wished to and should fight, and although Austria, yielded nearly all that Italy could by means of a few victories have desired. And the war is on. Thousands shall fall and Italian hotheadedness shall be cooled in blood.
    “ ‘Well, now, America and the American press should use this experience as a mirror. What the result is when once war passions are become overwhelming. And America with all her varying nationalities may well be doubly careful. Since the Lusitania disaster one can see how among so peaceful a nation as the American the tendency is. What a one-sided presentation, to but express it mildly. What an overwhelming of the government and an assurance to the President that he take strong measures knowing the whole people are behind him, although this last might have an entirely different result. See, thus are wars made. Instead of seeing the matter from both sides and being careful, we arouse ourselves and the people, although there was in this instance plenty of reason to (speak more mildly. What were the people doing on a boat loaded with ammunition sailing under an unfriendly flag in the war zone? They could just as well have been sitting on an ammunition wagon on the firing line. • Far-reaching recklessness. And they would have us look surprised when everything blows ■ up into the air. And from England, naturally, there is just the selfsame treachery as during the Boer war, whereby the wives and children of the Boers were placed before English cannon, to which the Calvinist referred to recently. But to all that we are blind, as also that if England shall accomplish her intentions, hundreds of thousands of women and children in Germany abiding in hopelessness shall die of starvation. About this cruelty which it has not been able to accomplish, but for which it is still striving, naturally nothing is said. Nor do we speak of the brutality that we are not on account of patriotism, but only for a handful of gold manufacturing ammunition and all kinds of war materials by which the war is continued and thousands, and yet thousands are killed. Killed by American tools in a war in which America has no concern. For a handful of gold do these American citizens permit themselves to be used as murderers and at the same time with their mouths full of the brotherhood of men!
    “ ‘And all this because the public is weak and poisoned and* permits itself to be more and more aroused by the press. More and more one-sided sympathy is being nurtured, and from it one-sided acts result which mock all so-called neutrality, so that before we know it, we too shall sit in the midst of war.
    “ ‘It is high time, therefore, that mighty protest be made against this one-sidedness and this whipping up of public sentiment to one side. So that something worse may not overcome us.
    “ ‘Perhaps it would not be bad if such a protest went out from the thousands of descendants of the Holland nation, .a nation which up to this time, although lying in the midst of the storm of the peoples engaged in the war, yet through God’s goodness knows how to keep itself so wonderfully out of the war. We have a right to speak with the rest.
    “ ‘Remembering your laudable appeal to the people for a day of prayer for the restoration of peace in Europe and a day of humiliation of ourselves before God Almighty that peace may be continued in our own country;
    _ “ ‘We American citizens, believe that America’s attitude of late is not entirely in accordance with the noble motive which directed you when you set apart the mentioned day of prayer and humiliation, because;
    “ ‘Munitions and other instruments of warfare are sold in large quantities to one side of the belligerent nations; the public press is inciting public opinion of America against our fellow-men and spreading feelings of hatred towards a friendly nation; the Lusitania incident — however much we too deplore the loss of so many lives — is issued one-sidedly; besides other questions the fact does not seem to be taken into consideration that English merchantmen are said to be instructed to ram submarines and are rewarded for accomplishing such; that in this way the submarines are prevented from investigating a hostile vessel; that merchantmen also are really used as instruments of warfare; not to say that a Christian nation as America may not allow the plans of the starving of millions of innocents by a nation befriended to us.
    “ ‘We therefore earnestly ask you to use your power to do everything possible that the feelings of prayer and humiliation set forth by your note of November, 1914, may continue in our nation, that exportation of ammunition and instruments of warfare may be prohibited, the propagation of hostile utterances in public life be restricted, the investigation of the Lusitania incident be allsided, and the dealing with other nations be done in the spirit of peace.
    “ ‘We, American citizens of Holland descent, beg to be allowed to submit the above to your consideration. We do so the more freely as descendants of a neutral people.
    “ ‘Most faithfully and respectfully.’ ”
    The learned trial judge instructed the jury that the particular language used by defendant was in and of itself libelous and, unless privileged, implies both damage and malice, and upon the subject of privilege, entered into at length in the charge, said, among other things, after reviewing the alleged libelous article, that the comments and conclusions relate to public matters—
    “and, therefore, constitute a qualified privilege, according, as you may determine the question as to whether or not there was express malice in publishing them”;
    ■ — and said that the burden rested upon plaintiff to prove express malice. Upon the subject of justification, the jury was told:
    “It is for you to say under the evidence in the case whether the limits of fair criticism were transcended by the defendant company under the facts and circumstances disclosed by the testimony in this case.
    “It is for you to say whether the defendant company was justified in publishing the alleged libelous article by reason of what had gone before, including the conduct of the plaintiff, as disclosed by the evidence.”
   Ostrander, C. J.

(after stating the facts). The considerable reference which has been made in the foregoing statements to the points presented upon the former appeal and to the opinion delivered is made partly because of- the use made in the briefs and in the opinion of the words justified and justifiable, partly to show the theories of counsel presented on the first appeal, and partly because it is a contention now made by counsel for plaintiff that this court, by its opinion, left to be determined upon a new trial (upon the same facts) only the question of damages, while the counsel for defendant say that the trial court correctly read the opinion as holding that on a new trial the questions directed to be submitted to the jury were:

(1) “Whether or not the limits of fair criticism have been transcended,” and
(2) “The question of justification.”

It is clear that the article complained about is either a libel (actionable defamation), or it is fair comment. Plaintiff says it is actionable defamation; defendant, in substance and effect, that it is fair comment. The lower court, upon the first trial, held that the article was not libelous, and then, and illogically, if the term justified is used with its technical meaning, that the defendant was justified in publishing the article. This court held (1) that the words employed were libelous, and (2) that whether they were justified — excused, warranted — because they were fair comment, was a question for the jury. Unless we did then, and do now, wholly misapprehend the case presented by the pleadings and- the proofs, then, allegations of minor errors aside, no other points of law were then, or are now, involved in a proper determination of the main question presented by the record. No separate question of justification or of privilege, giving these words their technical meaning, is presented, and we do not read the notice, given by defendant, of special defenses as raising these questions; we do read it as presenting, with the plea of the general issue, the contentions that the language is not libelous and, if it is, that all that was published was fair comment and therefore not actionable.

Plaintiff cannot be heard to say that what he himself published and circulated was not matter of public interest, because he' addressed the public upon a matter of current public concern, criticising action of public officials and advocating certain action of public officials. What he published therefore invited, or at any rate excused, comment and criticism from those who held other views. Plaintiff, however, is not a public officer, nor a candidate for office, but is a person who had the legal right to frame and circulate a petition to the President of the United States, and to comment, fairly, upon governmental policies and actions. Good taste might well have influenced him, in view of his status, to omit the particular activity, and his status, if known, would be likely to qualify his arguments; but his legal right cannot be denied. Defendant commented upon and criticised what plaintiff had published and criticised his political activity, and in doing so used language about him • personally which we held, and now hold, to be libelous per se; of such a character as to require the court to advise the jury that unless defendant’s contention that it was fair comment was made out it imputed malice and injury.

The onus is on plaintiff, where a defense of fair comment is raised, just as in any other case, to show that the words are reasonably capable of being understood as a libel on him, and it is for the judge to say whether the published article is capable in law of being a libel, McQuire v. Western Morning News Co., L. R. 2 K. B. Div. (1903) 100, 111, and the court having determined this point favorably to the plaintiff, then whether the words complained of are, or are not, fair comment is essentially a question for the jury. Campbell v. Spottiswoode, 3 B. & S. 778, 32 L. J. R. Q. B. 185; Merivale v. Carson, L. R. 20 Q. B. Div. 275.

“Fair comment does not negative defamation, but establishes a defense to any right of action founded on defamation.” Per Buckley, L. J., in Walker & Son v. Hodgson, L. R. 1 K. B. Div. (1909) 239, 253.
“It is precisely where the criticism would otherwise be actionable as a libel that the defense of fair comment comes in.” Per Lord Loreburn, L. C*, in Dakhyl v. Labouehere, L. R. 2 K. B. Div. (1908) 325, 327.

See Cooper v. Stone, 24 Wend. (N. Y.) 434; Dowling v. Livingstone, 108 Mich. 321 (32 L. R. A. 104); Newell on Slander and Libel (3d Ed.), chap. 20, p. 686 et seq.; Fraser’s Law of Libel and Slander (5th Ed.), art. 24, p. 155 et seq.

In making the defense of fair comment, defendant had no benefit of privilege, in the sense in which the learned trial judge used the term in advising the jury; no privilege attaches to a newspaper in such a case, and the liberty of the press, unless affected by statute, is no greater and no less than the liberty of every citizen. McAllister v. Free Press Co., 76 Mich. 338; Bee Pub. Co. v. Shields, 68 Neb. 750 (94 N. W. 1029, 99 N. W. 822) Although some eminent judges have used the word “privilege” to describe the public right of'fair comment (Gray, C. J., in Gott v. Pulsifer, 122 Mass. 235, 238, 239), bona fide comments on matters of public interest are not privileged; because it is the right of every one, not the privilege of any particular one, to comment fairly and honestly on any matter of public interest, and the defense of fair comment is equally applicable whether the criticism be oral or written. One distinction between fair comment and privileged communications is that in the latter case the words may be defamatory, but the defamation excused or justified by reason of the occasion, while in the former case the words are not defamation of the plaintiff and hence not'libelous, the stricture is not upon the person himself but upon his work — upon what he has said or has written. Another distinction is that if criticism or comment is privileged, strictly, the plaintiff would in every case be required to prove actual malice, however false and however injurious the strictures, while the defendant would only have to prove that he honestly believed the charges he made; and this is not the law.

Clearly, the court was in error in instructing the jury that there was involved any question of qualified privilege, in the sense in which the court used the term, and in advising them that plaintiff must prove express malice in order to recover. Quite as clearly, the court was not in error in refusing to charge, as requested to do by the plaintiff, that the only question for the jury was the damages sustained by the plaintiff. The jury should have been instructed that the article in question is libelous unless it is fair comment, and that whether or not it is fair comment was for them to decide, under instructions to be given them. If it was fair comment, plaintiff could not recover; if it was not, the rules to be applied in respect to the measure of recovery are those applicable to any other case of libel.

In view of the foregoing, it seems to us unnecessary to consider further and comment upon the charge of the court. However, it perhaps ought to be said that evidence of repetition of the libel before suit was begun may be received in aggravation of damages, and repetition after suit begun and after a first trial may be proved as evidence of malice if the publication is not found to be, in fact, fair comment.

It was error to admit' in evidence the article — editorial — headed, “Dr. Van Lonkhuyzen,” printed on November 4, 1915, after the first trial of the cause was' ended in the -circuit court. It was offered and received as tending to rebut malice. The editorial reads:

“Dr. Van Lonkhuyzen.
“You have declared before our magistrates your intention of becoming an American citizen. It is no reflection upon your character, your intelligence nor upon your ideals that in your four years of residence in the United States you have not as yet been able to grasp the spirit of American .patriotism in all its depths and fullness. You cannot understand in its entirety the American spirit until you become, thoroughly imbued with it. You cannot understand. the blessings .of American citizenship until you have shared in them. An American court has impressed you with some of these essentials.
“We will welcome you as a citizen of our free country, as we welcome all men with Christian ideals. We will welcome you as we welcomed all men of leadership and achievements. We will extend to you the hand of freedom’s fellowship in the thought and hope that you, when instilled with that spirit which moves America, will lend your many excellent qualities, your unquestionable high character and your intellectual endowment to the forces that have made American citizenship what it is.”

It is said by appellee that the plaintiff had offered to show malice, various publications appearing in defendant’s newspaper after the publication of the alleged libel, and that this article is—

“only another article of the same class tending to show that the defendant was not actuated by personal ill will against the plaintiff.”

It might have been argued by plaintiff’s counsel, the article being in evidence, that it was a confession that the original editorial and its repetition were designed by defendant, not as fair comment upon what the' plaintiff had written and published, but to teach plaintiff himself a lesson, to personally humiliate him. We are of opinion that the court erred in receiving it. It is not of the “same class” as those offered by plaintiff. If regarded as favorable to defendant, it is self-serving evidence made by defendant in its own behalf.

The judgment is reversed and a new trial ordered, with costs to appellant.

’ Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.