author: Stone, J.

text:
    STANDARD FASHION CO. v. CUMMINGS.
    Constitutional Law — Interstate Commerce — Corporations — Right to Sue — Sales.
    Where a foreign corporation entered into a contract with a resident of Michigan granting an agency for the sale of Standard patterns, for a stated term and from year to year thereafter, until it should be terminated by the parties, binding the corporation to sell and deliver f. o. b. New York or Chicago, Standard patterns, with advertising matter, at prices named, the buyer or agent agreeing to purchase a quantity of fashion plates for distribution and stipulating that all goods should be paid for on the 15th day of the month succeeding delivery, the agent agreeing to handle the line exclusively, did not amount to doing business in the State so as to bar an action by the corporation, under Act No. 34, Pub. Acts 1903; the business of the plaintiff was interstate commerce and, though called an agency in the writing, the other party thereto became liable as a purchaser without regard to the name by which he was called.
    Error to Wayne; Murphy, J.
    Submitted November 17, 1914.
    (Docket No. 73.)
    Decided July 23, 1915.
    Assumpsit by the Standard Fashion Company, a foreign corporation, against Mary E. Cummings upon a special agreement. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Raymond E. Van Syckle, for appellant.

      Arthur H. Covert, for appellee.
   Stone, J.

The plaintiff, a New York corporation, brought suit in assumpsit in justice’s court, declaring orally on all the common counts, and specially on the contract hereinafter set forth. Defendant pleaded the general issue. From a judgment for defendant, after a trial upon the merits, plaintiff appealed to the circuit court. Plaintiff’s case upon trial in the circuit court was substantially as follows: Prior to .January 23, 1907, plaintiff had sold to I. Jay Cummings, who owned and conducted a retail store at Paw Paw, Mich., a stock of paper patterns amounting to $150, of which $75 remained unpaid. On that date Cummings entered into a written contract with plaintiff, signed by plaintiff’s traveling representative, as follows:

“Mutual agreement between the Standard Fashion Company of New York, first party, and I. Jay Cummings of Paw Paw, State of Michigan, second party.
“First party hereby grants to the second party an agency for the sale of Standard Patterns for-in the city of Paw Paw, State of Michigan, for three years from date hereof, and from year to year thereafter until this agreement is terminated, as hereinafter provided, and agrees to sell and deliver f. o. b. New York, or at Chicago, 111., to second party, Standard Patterns at a discount of fifty per cent, from retail prices, and advertising matter at the prices and on the conditions named on the reverse side hereof; also such other publications as may be issued by first party, at regular agent’s rates; to allow second party to return discarded patterns semi-annually, between January 15th and February 15th, and July 15th and August 15th, in exchange at nine-tenths cost for other patterns to be shipped at the time of return or thereafter, but not in exchange for other goods than patterns. Patterns returned for exchange must have been purchased by second party from first party direct and must be delivered in good order to first party at its general office in New York.
“Second party agrees, in consideration of the above to purchase from the first party, for free distribution, Standard fashion sheets to a number not less than three thousand (3,000) per annum, and handy catalogues to a number not less than-per annum, to pay transportation charges on all goods ordered or returned under this agreement; to purchase and keep on hand at all times, except during the periods of exchange specified above, one hundred fifty (150) dollars’ value in Standard patterns, at net invoice prices, and to pay first party for a pattern stock of the amount stated above, to be selected by the first party, the terms of payment to be as follows:-dollars at time of signing this contract, and-dollars in thirty days after shipment of stock, in regular monthly account as herein provided, the balance of the purchase price, seventy-five (75) dollars, to remain unpaid, as a standing credit, during the continuance of this agreement, and to become due and payable at its termination, second party to pay interest on this standing credit at the rate of 5 per cent, per annum on January 15th of each year; all other purchases to be paid for on or before the 15th day of the month succeeding the date of shipment.
“Second party also agrees not to assign or transfer this agency, nor to remove it from its original location without the written consent of said first party, not to sell or permit to be sold on the premises of second party, during the term of this contract, any other make of patterns and not to sell Standard Patterns except at label prices. Second party further agrees to permit first party or its representative to take account of pattern stock whenever it desires, to pay proper attention to the sale of Standard Patterns, to conserve the best interests of the agency at all times, to reorder promptly all patterns as sold, and to give the department a prominent position on the ground floor in the store.
“Either party, desirous of terminating this agreement, must give the other party three months.’ notice in writing, within thirty days after the expiration of any contract period as above specified, the agency to continue regularly during such three months. Upon expiration of such notice, second party agrees to promptly return to first party all standard patterns bought under this contract and then on hand, which first party agrees to credit on receipt in good order at three-fourths cost, paying to second party, within thirty days after receipt of same, in cash, any balance due. Neglect to return the pattern stock within two weeks after expiration of three months’ notice shall relieve first party from all obligation to redeem the same. Failure to require compliance with the strict letter of this agreement shall not constitute a waiver of any condition nor forfeit nor prejudice any right hereunder.
“It is hereby acknowledged by both parties that there are no verbal understandings between them conflicting with this contract.
“Dated January 23rd, 1907.
“Done at New York, State of N. Y.
“Standard Fashion Company,
“Per A. J. Connell.
“[First Party.]
“I. Jay Cummings.
“[Second Party.]”
Reverse side:
“Advertising Matter — Rates and Privileges.
“Fashion Sheets: $6.00 per thousand.
“In lots of 500 and over per month, front card and upper portion of back printed with agent’s advertisement (without extra charge) if changed only twice a year. Each additional change $2.00.
“In lots of 1,000 and over per month, front card and upper portion of back page printed with agent’s advertisement, which may be changed quarterly (without extra charge).
“In lots of 2,000 and over per month, front card and upper portion of back page printed with agent’s advertisement, which may be changed monthly (without extra charge).
“Copy of advertisement for March issue must be in our hands by January 15th, to insure insertion. Make some allowance of time on all changes of advertisements. We reserve the right to repeat last advertisement if change is not received by us in due time.
“Fashion Sheets: In lots of less than 500 of one issue, without extra printing; 50 cents per hundred; blank space on front page in which merchant may stamp his business card. When 250 or more of one issue are ordered, merchant’s card will be printed on front page at a charge of 50 cents for each printing.
“Handy Catalogues: (Issued February and August) . $2.00 per hundred, with agent’s card printed on first page of cover on orders of 100 or over of one issue, and entire last page of cover in addition, with same advertisement as running on sheets, when 500 or more are ordered of one issue.”

Subsequent to signing this contract Cummings carried in stock patterns he procured from plaintiff, until his death on September 28, 1908, before the contract terminated. After Cummings’ death there was evidence tending to show that the business was conducted by the widow, the defendant, on her own personal responsibility, until she sold out the business in November, 1909. During that period she ordered and received patterns from the plaintiff, by mail, from time to time, in accordance with the terms of the contract. There was evidence tending to show that both parties treated the contract as subsisting. Between November 1 and December 10, 1909, defendant sold the business, returning no patterns to the plaintiff. Upon the original contract there was claimed to be due the $75 remaining unpaid at the time the contract was signed, and $2.62 for patterns later ordered.

At the conclusion of plaintiff’s testimony, the trial court granted defendant’s motion for a directed verdict in her favor, on the sole ground that plaintiff, a foreign corporation, was carrying on business in Michigan without having complied with the requirements of Act No. 206, Pub. Acts 1901, as amended by Act No. 34, Pub. Acts 1903, and was therefore precluded from maintaining this action. By the charge of the court it appears that its decision was based solely upon the ground above stated. In its charge the court said:

“The position is taken by the defendant that the plaintiff, which concededly is a foreign corporation, is engaged in carrying on its business, or was at the time in issue here, in this State without having first filed in the office of the Secretary of State a certified copy of its charter, or articles of incorporation. It is conceded that the plaintiff has not filed any such copy of its articles of incorporation in this State.”

After holding that plaintiff was carrying on its business in this State in violation of the statute, and that such business was not a sale of goods or merchandise which would be protected by the rights of interstate commerce, the court further said:

“This statute provided that any foreign corporation, subject to the provisions of the law in question, shall not maintain any action in this State upon any contract made by it, after the taking effect of this act, until it shall have fully complied with the requirements of the act. Now, not having complied with the requirements of the act, the plaintiff in my view cannot maintain this action. It is precluded by our law from doing it.”

A judgment for the defendant was thereupon entered. There was a motion for a new trial, which was denied, the reasons stated for the denial being substantially those contained in the charge of the court. Plaintiff, having excepted to such reasons and the refusal of the court to grant a new trial, brings the case here upon writ of error, and the principal question discussed under appropriate assignments of error is: Was plaintiff carrying on business in this State within the meaning of our statute?

The point is made by plaintiff by assignment of error that this defense, not having been affirmatively pleaded, was improperly before the court under subdivision (c) of Circuit Court Rule 7. But as this case arose in justice’s court, and as the learned trial judge stated that it was conceded that the plaintiff had not. filed any such copy of its articles of incorporation in this State, we think that we should dispose of the question upon its merits.

It is the claim of the plaintiff that it was not, and the contract did not contemplate, carrying on business in Michigan within the prohibition of the statute, that the business canned on by a foreign corporation in this State, to be unlawful, must be local business, or “intrastate” commerce, and that the importation and sale of goods to residents of Michigan by a foreign corporation constitute interstate commerce, and cannot be prohibited by the act. It is urged that the sale of plaintiff’s merchandise to a citizen of Michigan, and its importation were protected by the rights of interstate commerce; that plaintiff did not go further and by the contract provide for the carrying on in Michigan of its own business through defendant as its agent. We have read this contract with great care in connection with the other evidence in the record, and have also re-examined, not only our own recent cases, but the Federal cases as well. And While it may be said that the instant case is near the border line, yet we are of opinion that it falls within that line of cases holding that where a sale takes place under the circumstances surrounding this transaction, the rule relating to interstate commerce applies. The following Michigan cases have- been examined upon this subject: Rough v. Breitung, 117 Mich. 48 (75 N. W. 147); Neyens v. Worthington, 150 Mich. 580 (114 N. W. 404, 18 L. R. A. [N. S.] 142); Haughton Elevator, etc., Co. v. Candy Co., 156 Mich. 25 (120 N. W. 18); Showen v. J. L. Owens Co., 158 Mich. 321 (122 N. W. 640, 133 Am. St. Rep. 376); Imperial Curtain Co. v. Jacob, 163 Mich. 72 (127 N. W. 772); Despres, Bridges & Noel v. Zierleyn, 163 Mich. 399 (128 N. W. 769); Nernst Lamp Co. v. Conrad, 165 Mich. 604 (131 N. W. 120); E. A. Lange Medical Co. v. Brace, 186 Mich. 453 (152 N. W. 1026). In our opinion, the instant case differs and should be distinguished from the foregoing cases, and is controlled by the decisions relating to interstate commerce. We are constrained to hold that under this contract and the evidence this plaintiff, a foreign corporation, was not doing business in Michigan, but that it sold its goods to I. Jay Cummings, who, it is true, had the exclusive right to sell them, but they were not sold by Cummings for or on account of the plaintiff, but exclusively on account of said Cummings.

In the recent case of E. A. Lange Medical Co. v. Brace, supra, Justice Kuhn reviewed the Federal decisions upon this question. We call attention to the case of Butler Bros. Shoe Co. v. Rubber Co., 156 Fed. 1, 84 C. C. A. 167, where Judge Sanborn, of the United States Circuit Court of Appeals, reviews the Federal decisions, and also to the case of In re Monongahela Distillery Co., 186 Fed. 220, where Judge Denison, of the United States District Court, again reviews the question, and, referring to the case of Butler Bros. Shoe Company, states that a writ of certiorari was denied in that case by the Supreme Court of the United States, 212 U. S. 577, 29 Sup. Ct. 686, and also refers to the fact that the case has been cited and followed by the United States District Court in the Western District of Wisconsin, in Atlas Engine Works v. Parkinson, 161 Fed. 223, 229. The question of what is interstate commerce is a Federal question, and the Federal decisions are controlling; but we are of opinion that they are not in conflict with our own cases. Many other cases, Federal and State, might be cited. We content ourselves with citing only the following: Standard Fashion Co. v. Hayes-Brown Co., unreported opinion of the Supreme Court of Tennessee, rendered July 5, 1907; Standard Fashion Co. v. McLeod (7 Alberta L. R. 145), decision rendered April 25, 1914,. in the supreme court of Alberta. Both these decisions reached the conclusion that the transactions under the contracts, similar to the one involved in this suit, amounted to a sale, and fell within the rule applicable to interstate commerce. In the instant case it is true that the written agreement between the plaintiff and Cummings purported to be an appointment by the plaintiff of Cummings as the company’s agent; but as was stated in the McLeod Case:

“There is no magic in a word, and we must see the sense of the agreement as a whole.”

Taking the contract as a whole, the company agreed to sell and deliver, f. o. b. New York, or at Chicago, 111., to Cummings “Standard Patterns” at a discount of 50 per cent, from retail prices, and also advertising matter at certain prices and on certain conditions, and also such other publications as might be used by the plaintiff at regular agents’ rates, Cummings to be at liberty to return discarded patterns semi-annually, between certain dates, in exchange at' nine-tenths cost for other patterns. Cummings agreed to purchase from plaintiff for free distribution “Standard Fashion Sheets” to a certain number, to pay transportation charges on all goods ordered or returned under the agreement, etc. We need not repeat all of the terms of the contract. We cannot doubt that when these articles of merchandise were delivered to Cummings they became his property, and the sales were made on his own account, and not on account of the plaintiff. We are of opinion that the delivery of these goods to the common carrier at the places named to be transported to Cummings at Paw Paw, Mich., was an act of interstate commerce, and, so long as the business of plaintiff, a foreign corporation, was limited to the acts of interstate commerce, and did not establish within the State a local agency to represent it in the sale of its goods, wares, and merchandise, it was not amenable to the law of this State requiring foreign corporations, as a condition of transacting business in this State, to file a copy of their charter or articles of association as prescribed by the Michigan act. It is well established that the proper construction of a contract is not dependent upon any name given to the instrument by the parties, or any one provision, but upon the entire body of the contract, and the legal effect of it as a whole. The learned trial court in its charge to the jury seemed to think that if the transaction tended to further the business of the plaintiff within this State, it fell within the terms of our statute. We do not think that a controlling test. Probably the great bulk of interstate business is done for the purpose of furthering the business of the foreign corporation. We think the test is: Was the plaintiff engaged in carrying on a local business within this State? We are constrained to hold that under this record it was not, and that the learned trial court erred in directing a verdict for the defendant.

Many other questions relating to the liability of this defendant suggest themselves to one who reads this record, but as those questions were not presented to us, and have not been discussed by counsel, we express no opinion beyond holding that the directed verdict, for the reason stated by the trial court, was erroneous.

Some questions relative to the admission of testimony were discussed by appellant’s counsel, especially the deposition of the witness John T. Scanlon, the president of plaintiff company. We think the court did not err in holding that some portions of his deposition were hearsay and inadmissible.

For the error pointed out the judgment of the circuit court is reversed, and a new trial granted.

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

This case was' originally assigned to the late Justice McAlvay.


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    LOOSE v. TOWNSHIP OF DEERFIELD.
    1. Evidence — Negligence—Personal Injuries — Damages.
    In an action for personal injuries, evidence that plaintiff was not working steadily was admissible for the purpose of showing his incapacity by reason of his injuries.
    2. Same — Conclusions—Trial.
    Where the witness stated a fact only, in answer to a question that was objectionable on the ground that it called for a conclusion, no reversible error was committed by the court in allowing the answer to stand.
    3. Same — Pain and Suffering — Hearsay—Declarations.
    Where witness was asked how many times he had heard plaintiff complain of his back hurting him, since he was hurt, it was not error for the court to receive the answer, since such statements are acts rather than declarations, and are not regarded as hearsay.
    4. Same — Admissions of Driver — Negligence—Contributory Negligence.
    Admissions by the driver of the ear in which plaintiff was riding when injured, made some time after the accident occurred, and not in the presence of plaintiff, are not admissible as substantive evidence, although admissible for the purpose of impeachment.
    5. Same — Highways and Streets — Expert Witnesses — Municipal Corporations.
    The question of the construction and condition of a country highway is a subject which does not require expert testimony to enable a jury to decide whether it was reasonably safe, and no error was committed by the court in rejecting expert testimony. Harris v. Township of Clinton, 64 Mich. 447.
    6. Municipal Corporations — Highways and Streets — Contributory Negligence.
    Where plaintiff was injured when an automobile in which he was riding plunged into an excavation in a public highway, which was not guarded by lights or barriers, the driver was not guilty of contributory negligence, as matter of law, in proceeding, after slowing down and taking suck precautions as tke’ situation to kim appeared to demand.
    7. Trial — Conduct of Court — Jury—Absence of Counsel from Court Room.
    Wkere tke jury came into court after deliberating for a time, and indicated tkat tkere was some disagreement as to tke testimony of certain witnesses, it was not error for tke court, during tke absence of appellant’s counsel from tke court room, to cause tke testimony of two witnesses to be read, and to omit certain otker testimony now claimed by counsel to be material to a correct understanding of tke matter in doubt.
    Error to Livingston; Miner, J.
    Submitted October 12, 1914.
    (Docket No. 71.)
    Decided July 23, 1915.
    Case by Edward C. Loose against the Township of Deerfield for personal injuries caused by an alleged-defective highway. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      William E. Robb and W. P. Van Winkle & Son, for appellant.

      Louis E. Rowlett and Francis J. Shields, for appellee.
   Bird, J.

Plaintiff was riding with his neighbor in his automobile at a late hour at night on one of the north and south highways of the defendant township, when they came to an intersecting highway which was being converted into a State reward road. At the point of intersection, a cut had been made in the east and west highway about ten inches in depth and nine feet wide, and the dirt had been thrown out on both sides, thereby forming a ridge four or five inches in height on each side of the excavation to receive the gravel. The automobile ran into this excavation, and plaintiff was thrown violently about in the automobile, and as a consequence suffered injuries for which he claims he should be compensated. The declaration charged the defendant with a failure to keep the highway in reasonable repair and in condition reasonably safe and fit for travel; the particular negligence alleged being its failure to place lights or barriers thereon to warn travelers of the danger. The question was submitted to a jury, and they returned a verdict for the plaintiff of $300. Several reasons are assigned by defendant why the judgment should be reversed. A few of them will be considered.

Error is assigned on the admission of the following testimony:

Dennis McCarty, a neighbor of plaintiff, was asked:

(а) “Q. Now, do you know what his condition of health was after he received this injury in June?
“A. I saw he wasn’t working • steady himself, and had help there on the farm.
“Mr. Van Winkle: I object to that as not tending to prove his condition of health, and move it be stricken out.
“The Court: It may stand.
(б) “Q. At any time when you saw him along through the months and days of June after he got hurt, did you hear him make any exclamations that showed to you that at that time he was in pain?
“A. Why, I noticed when he was talking to me he had difficulty in breathing.”

The witness Chester Downer, a near neighbor to plaintiff, was permitted to answer the following question:

(c) “Q. How many times have you heard him during the last summer, since he got hurt, speak of his back troubling him?
“A. Not a great many times.”

The answer to question “a” was not wholly immaterial. The fact that plaintiff was not working steadily, and that another was doing his work, was at least consistent with his claim of incapacity by reason of his injuries.

Question “b” was somewhat objectionable as calling for a conclusion, but the answer which it brought forth attempted to state only a fact.

Question “c” was not improper. It did not call for narration of past suffering, as is urged, but called for complaints, if any, made by plaintiff of his then condition. Such statements are not regarded as hearsay because they are received upon the theory that they are acts rather than declarations. Hyatt v. Adams, 16 Mich. 180, 200; Johnson v. McKee, 27 Mich. 471, 473; Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537, 543 (31 Am. Rep. 321); Will v. Village of Mendon, 108 Mich. 251 (66 N. W. 58).

Defendant attempted to show as a substantive fact that certain admissions were made by Trollman, the driver, as to the speed of the car. The refusal of the court to admit these is assigned as error. Had the foundation been laid and the admissions offered as impeachment of Trollman, they would have been competent ; but as substantive evidence they were not competent because they were made some time after the accident and not in the presence of the plaintiff. Edwards v. Foote, 129 Mich. 121 (88 N. W. 404).

Expert testimony was offered and rejected on the question as. to whether the highway at the place of the injury was reasonably safe for automobiles. The question of the construction and condition of a country highway is a subject which, does not require expert testimony to enable a jury to decide as to whether it was reasonably safe for the passage of vehicles. And it was not error for the trial court to reject it. Harris v. Township of Clinton, 64 Mich. 447 (31 N. W. 425, 8 Am. St. Rep. 842).

The refusal of the trial court to charge the jury that plaintiff and the driver were guilty of contributory negligence as a matter of law is made the ground for an assignment of error. In support of this contention, it is argued that both plaintiff and Trollman knew that the highway in question was being repaired, both admitted seeing the elevation when from 15 to 20 rods away,- and that it appeared from the testimony of Trollman that at the rate of speed he was traveling he could have stopped his car in one rod. The testimony of the driver is that, as he approached the highway, he noticed a slight raise in the roadbed, and from its appearance he concluded that it was a recently repaired sluiceway; that he slowed down his car to á speed of six or seven miles an hour to go over it, and did not discover the excavation which lay behind the ridge until he was so close that he was unable to avoid it. It was conceded that there were no lights nor barriers to warn the driver of the danger. The situation as it appeared to the driver was such that he had a right to proceed (Harris v. Township of Clinton, supra), but as to whether in so doing he exercised the care and caution that an ordinarily careful and prudent man would have exercised, under similar circumstances, was a question entirely within the province of the jury.

After deliberating for a time, the jury came into court and indicated that there was some disagreement between them as to the testimony of certain witnesses who had testified upon the trial. Thereupon the court ordered the stenographer to read the testimony of two witnesses, after which the jury again retired to their room. This action of the trial court is assigned as error, because it was. done in the absence of defendant’s counsel, and because certain other testimony should have been read in order to have given them a correct understanding of the matter in doubt. It is sufficient to say of those objections that counsel was aware that the jury were deliberating, and they were also aware of the fact that such requests are not infrequently made by juries during their deliberations and granted. With this knowledge, if they chose to absent themselves from the courtroom, they are in no position to complain of the trial court because he complied with the request of the jury, nor because he omitted to have read certain other testimony in the record which would have thrown some light on the question about which inquiry was made.

Other errors are assigned, and we have examined them, but find no reversible error in them. The judgment of the trial court is affirmed.

Brooke, C. J., and Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred in the result.

The late Justice McAlvay took no part in this decision.


author: Moore, J.

text:
    ANDERSON v. ANN ARBOR RAILROAD CO.
    Amendments — Pleading—Declaration—Continuance.
    In an action for personal injuries, where the court allowed an amendment of plaintiff’s'declaration .on the day of trial, which created an entirely different situation, and defendant was not prepared to meet the new issue, a continuance should have been granted.
    Error to Benzie; Lamb, J.
    Submitted October 8, 1914.
    (Docket No. 14.)
    Decided July 23, 1915.
    Case by Thomas A. Anderson against the Ann Arbor Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Gustavus Ohlinger and M. G. Paul (Alexander L. Smith, of counsel), for appellant.

      Nevius & Harwood (Thos. Smurthwaite, of counsel), for appellee.
   Moore, J.

The plaintiff, while working as a brakeman on defendant’s railroad, received severe personal injuries. This suit was brought to recover damages because of them. From a judgment of $6,500, the case is. brought here by writ of error.

The errors relied upon are by counsel classified as follows:

(1) Error of the trial court in allowing plaintiff to amend his declaration on the day of trial, and in refusing defendant’s motion for a continuance after the amendment was made. A further error is predicated upon the action of the court in allowing plaintiff, at the close of the evidence, to amend his declaration by substituting “Y” for “side track” as the location of the accident.
(2) Errors in the introduction of evidence not competent under the pleadings: (a) In permitting testimony in regard to an accident on a “Y,” when the amended declaration refers to a “side track;” (5) in allowing testimony in regard to injuries not claimed in the amended declaration; (c) in permitting testimony to be received regarding the absence of end stakes or racking on the the flat car, when the amended declaration contained no allegation in regard to these matters.
(3) Other errors in the introduction of evidence.
(4) Errors in the charge of the court.

It was entirely competent for the court to allow the proposed amendment; but the serious question grows out of his refusal to grant a continuance of the case at the request of counsel, who stated they were prepared to try the case upon the issues involved in the original declaration, but wére unprepared to meet the case as presented by the amended declaration. It becomes important to note the difference in the two declarations. The accident happened while two cars were being shunted upon a Y, or switch, connecting the defendant road with the Pere Marquette Railroad at a point where these railroads cross each other. In the original declaration it was stated that plaintiff, by reason of his duties as brakeman, was required to stand between the lumber loaded on the flat car and the brake wheel at the end of said car, and that when the two cars were thrown into the'Y, or switch, the forward one came in contact with a car on the siding, and the impact shifted the load of lumber back of the brakeman against him, and he was thrown against the brake wheel of the flat car and severely injured. The proofs showed that the impact of the cars, instead of throwing the lumber toward the brake wheel on the flat car, would throw it away from the only brake wheel on that car. Evidently the pleader did not understand the facts when he drew the original declaration, and when he did understand them it became necessary to amend the declaration, so as to state that the brake wheel was on the end of the gondola car, and that in setting the brake on the gondola car plaintiff stood with one foot on the bumper or platform of the flat car, with his back to the lumber of that car, and the other foot on the gondola car, and that when he was attempting to set the brake on the end of the gondola car the impact of the cars shifted the lumber on the flat car and crushed plaintiff against the brake wheel on the end of the gondola car.

It will be noticed that under the original declaration the impact of the cars would take the lumber of the flat car away from the brake wheel on that car, so that the proofs would make no case under that declaration, and, if plaintiff was to have any standing in court under the proofs, an amendment showing he was setting the brake on the end of the gondola car at the time of the accident was necessary. When counsel stated they were not prepared to meet the new situation presented by the amended declaration, we think a continuance should have been granted. See Ruscyh v. Railway, 180 Mich. 399 (147 N. W. 514).

The other assignments of error do not call for discussion, as they are either not well taken or will not arise on the new trial.

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

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

This case was originally assigned to the late Justice McAlvay.


text:
    CHISHOLM v. ANN ARBOR RAILROAD CO.
    1. Carriers — Negligence—Contributory Negligence — Railroads —Evidence—Alighting erom Train.
    In an action for personal injuries received by plaintiff while alighting from defendant’s passenger train, the court was not in error in admitting evidence as to where the train stopped on former occasions, as to its position with reference to the station platform the night of the accident, and as to the condition of the right of way at the point where plaintiff alighted; such evidence being competent for the purpose of determining whether either or both of the parties was negligent.
    2. Same — Directed Verdict — Evidence.
    Where the evidence was conflicting, some of it tending to show that defendant was negligent and that plaintiff was free from contributory negligence,' the court was not in error in refusing to direct a verdict for defendant.
    3. Trial — Requests to Charge — Instructions.
    Refusal of the trial court to give requested instructions was not error, where the charge as given fully instructed the jury upon the law of the case.
    Error to Isabella; Dodds, J.
    Submitted November 23, 1914.
    (Docket No. 115.)
    Decided July 23, 1915.
    Case by Susan H. Chisholm against the Ann Arbor Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Gustavus Ohlinger and F. H. Dusenbury (Alexander L. Smith, of counsel), for appellant.

      De Foe, Hall & Converse, for appellee.
   Moore, J.

The issues involved in this case are so clearly stated by the trial judge in his charge to the jury that we quote from it freely as follows:

“Gentlemen of the jury, the plaintiff in this case seeks to recover damages she claims she has sustained by reason of an injury received while alighting from a train of the defendant at the Rosebush station, in this county. It is her claim that on the evening of April 8, 1913, she entered a regular passenger train of defendant at its station at Mt. Pleasant and became a passenger thereon for hire to be carried to the station of Rosebush, in this county; that when the train stopped for the station at Rosebush, about 10 o’clock in the evening, or a little later, plaintiff left her seat and went to the platform of the coach to dismount in the usual and ordinary manner; that there is a level board platform constructed along the tracks at such station, and that theretofore such train had regularly stopped thereat, and certain of the trainmen had theretofore made it a practice to place upon said platform and in proper position beneath the steps of such coaches a stool, or stepping box, so that the passengers, in alighting from such train, could step upon such box and then to such board platform in safety; that it was dark when such train arrived at said station on the evening in question, and that there were no lights either in said station building nor upon said station grounds, and no lights were furnished thereat by the men in charge of said train, other than shone from the windows thereof, and that this cast no reflection upon the steps or the ground beneath; that certain passengers preceded plaintiff in leaving such train by the' same steps, and that one of such trainmen stood on the ground and at the side of said steps in the usual position to render assistance to passengers; that, in emerging from such lighted train into the darkness, plaintiff was unable to distinguish the exact location of said train with reference to said platform, but supposed and judged from the position of such trainman, 'and his failure to give any warning to or advise her to the contrary, that said train had stopped in its usual position, opposite said platform, and that she would be required to pass from said steps to such stool and then to such board platform. But plaintiff claims that said train had stopped before the steps of such coach had reached said platform, and that the ground thereat and beneath the steps of such coach was the ordinary sand and gravel roadbed; that it was slanting instead of level and formed an insecure footing and an improper and insecure resting place for such step box, and that the distance from the step of such coach to such step box 'was considerably greater than when such step box is placed upon the board platform; that, before she stepped from such train, she looked and thought that she saw that the step box had been placed, and assumed that it was in its usual position upon such board platform, and was not warned or advised to the contrary, and that, as she stepped down, the trainman took her by one arm and another gentleman by the other, but owing to the fact that such step box had been placed too far beneath the step, and being slanting and insecure and of small area, only a portion of her foot struck the top of the box, and she was thrown, causing the injuries complained of.
“There is no claim on the part of the plaintiff that she was thrown clear to the ground, but her claim is that she stepped with her heel upon the west edge of the step box, she getting out on the west side of the train, and that then her foot slipped forward and sideways to the south, as I understand her, descending in that way, and in some way injured her knee.
“She claims that defendant was negligent in not stopping at the beard platform, and claims that the place where she was required to alight was an unsafe and unsuitable place for the passengers to dismount from this train in the darkness. She further claims that, the train having been stopped at this place, it was the duty of the defendant to have provided reasonably safe means for her to have left the train and to have furnished her with sufficient light and assistance to have alighted in safety, by the exercise of reasonable care on her part.
“Now the defendant claims that while the train did not stop at the platform, so that this coach, in which the plaintiff was riding, would stop with the steps of the coach on the platform, still it was in a safe place for her to alight, and that the place and means provided were reasonably safe for her to alight, and that in that particular the defendant was not negligent at all. It is also claimed that these men who had charge of the train — the brakeman assisted -her to the best he coiild to alight, and, as I understand, their claim is that the defendant’s brakeman told her to step out, and that she failed to do it, and that, by reason of her failure, her foot went inside the box towards the train instead of alighting on the box, as she ought to have done. * ‡ ‡
“The claim on the part of the defendant is that it did all that it was required to do under the law at that time to have her ali'ght in safety, and that it was by reason of her own negligence in not paying attention to what she was doing, when she ought to have done so, that caused the injury. * * *
“Negligence is the basis of this action. The plaintiff sues this company because she claims that the company was negligent at the time of her alighting from that train and by reason of their negligence that she was injured and not because of any negligence on her own part. That is the basis of her case. If she fails to prove that she hasn’t any case, or if she should prove that the company was negligent and fails, to prove that she herself was in the exercise of due care, then she cannot recover. So that it is necessary for jmu to pay particular attention to what negligence is. It consists in the want of that reasonable care which would be exercised by a person of ordinary prudence under all the existing circumstances, in view of the probable danger of an injury, and also of a failure to observe that 'degree of care which the law requires for the protection of interest likely to be injuriously affected by the want of it; a failure to observe, for the protection of another’s interests, such care, precaution, and vigilance as the circumstances justly demand and the want of which causes, injury. Now that negligence is. what is charged here .against the defendant. The plaintiff not only charges negligence upon the part of the defendant, but affirmatively that she was herself in the exercise of due care. That is to say, that she had not contributed, to the injury she sustained by reason of her own want of care or her own negligence, and, as applied to her, this definition means that it was her duty, at the time of alighting, to use such due care on the occasion as a prudent person would have done under the circumstances.
“Now the burden of proof is. upon the plaintiff throughout this ease upon these two important points; in fact, upon three points. There are three things you must find in this case in order that the plaintiff recover : First, that the defendant was negligent in the manner that is charged as negligence in the plaintiff’s declaration, and that, by reason of that negligence, she was injured; and she must also show that her own negligence did not contribute to that injury. Then, if she has shown these two things, the burden of proof being upon her to show by a preponderance of the testimony in her favor, she must show she has been injured thereby and the extent of the injury. * * *
“Nov/ these are the things that are claimed to be negligent, and that I think you may consider: First, that there was no light there, as the plaintiff claims, if you find that to be a fact that there was no light there. Defendant' claims that the brakeman had a lantern on his arm, and that it showed sufficient light for all purposes. Now, the plaintiff says that there wasn’t any light; that the brakeman didn’t have any light there at all. Now, if it was entirely dark there, or if it was, so dark that the plaintiff could not see where to step, and the train stopped there for her to get out, and she missed her way by reason of not being able to see, when she thought it was safe for her to step down, then that might amount to such negligence, upon the part of the defendant, as would justify recovery, if you find it to be such. That is, it is for you to say whether or not that was such negligence as I have explained to you it consists of, and, if you find that that comes under the definition I have given you, then it is proper for you to base a verdict upon that, provided proof of other things are made, but you must find, in order to determine that that was the reason of the injury, that that was the cause of it. And it is claimed that the distance was great from the step to the ground, and that is for you to consider whether that was a proper distance to require a passenger to step down; and this woman is, to be judged by her condition at that time, because it is shown in this, case that the brakeman himself did have hold of her arm, and must have known, or ought to have known, something about the fact that it was, a woman, and her size, etc., and anything that he could tell when he was there, and you should consider that in determining whether defendant was guilty of negligence in allowing her to step down that length of step.
“Now, it is. claimed also that the box was placed upon tilting ground, and that it did tilt toward the west, and that is. claimed as negligence. This is for you to consider under what I have stated to you of what negligence is, and for you to deliver of your verdict whether placing of that box in that way, if you find it to be tilting, was negligence; defendant depying that the ground was slanting, and claiming that the ground was level at the time.
“It is claimed also on the part of the plaintiff that the box was placed too far under the step, and that plaintiff, when stepping off, instead of stepping on the box securely, stepped on the outside edge of it, and in that way she slid off the box, and that that caused the injury of which she complains.
“Now, I think you may consider these, and if you find that defendant was guilty of any act of negligence in any one of these four things, and that complainant was not at all negligent herself (that is, that no negligence on her part contributed to the injury), then it would be proper for you to find a verdict in her favor. * * *
“Now, on the part of the defendant, I am asked to charge you that the evidence is undisputed that plaintiff was informed, before leaving, the last step of the coach, that it was a long step from there to the top of the box. In connection with that, the language is a long step. The request refers to the statement made by Mr. Johnson that the step was high. It was therefore her duty, on the occasion in question, to use more care in alighting from the coach than she would otherwise have been called upon to exercise. That is to say, if she knew the danger, she should conduct herself accordingly. If she failed in this regard to use such care as she ought to have used, and her failure contributed to her own injury, the company is not liable, and your verdict must be not guilty, if you find that to be true. If you find that she did exercise the amount of care that she ought to have exercised, that is for you to say whether she did or not.
“I charge you that, in providing for a safe place to alight, defendant is held only to the exercise of reasonable care; that is, such care as a man of ordinary prudence would exercise under the same circumstances. I have stated that to you before; but, inasmuch as the request is proper and in such language as the parties desire, it is my duty to state it to you also in their language.
“I charge you further that, when plaintiff attempted to step on the box, she had already been apprised of the fact that it was somewhat dark, and that the box was some distance below the step. It was therefore incumbent on her to use care commensurate with these conditions; and if she failed in this regard, and her failure contributed to. the accident, then the company is not liable.
“I charge you if the defendant was negligent, and if the plaintiff knew of such negligence, then it was her duty to use proper care to avoid any effects of such negligence; and if she failed therein, and her failure contributed to cause the injury, then the defendant would not be liable.
“I instruct you further that the law does not require, under ordinary circumstances, that the employees of a railroad company hold the arms of .passengers to assist them in alighting.
“Further I charge you, if you find this injury was accidental and not caused by the fault or negligence of either of the parties, either the plaintiff, Mrs. Chisholm, or the defendant company, or its crew, then your verdict should be no cause of action or not guilty.
“I am asked to charge you, gentlemen, that, unless you find by a preponderance of the evidence that the plaintiff fell over the west edge of the step box, then your verdict must be for the defendant. Instead of giving that to you in that language, I say to you that the words ‘fell over’ — I don’t give it to you in the terms here because of those words, but I do charge you that, in order for the plaintiff to recover, you must find that she stepped upon the west edge of the box, as she claims she did (as it is claimed), and that she did not fall as the defendant claims, stepped over the south end of the box. In that, plaintiff is held to the charges made in the declaration specifically as alleged. Her claim is she stepped with her heel on the front edge of the box, and that she slipped off in that way, and doesn’t say to the south, and that that was how the injury was caused. * * *
“The defendant desires me to state a little more particularly the claim of the defendant. The claim of the defendant is (I think I stated it before, but so as to .be sure you understand it) that the plaintiff did not step on the box, and consequently the position where the box was has nothing to do with the claim; that, inasmuch as the plaintiff did not step on the box, it makes no difference whether the box was there or not, and has no connection with the injury; that the distance of the step does not enter into it; and further that the position where the box was placed, whether in under the step or not, makes no difference, if she didn’t step at the place where the box should have been; that she tipped over toward the south. That is the claim of the defendant. I stated to you in the beginning what the claim of the plaintiff is and what the claim of the defendant is. The defendant asked me to state that more clearly so you could understand it.”

The jury returned a verdict in favor of the plaintiff in the sum of $1,400. From a judgment on that verdict, the case is brought here by writ of error.

The errors assigned are discussed under the following heads:

I. (a) In denying defendant’s motion to strike out all the testimony in regard to where the train stopped on former occasions. (b) In denying defendant’s motion to strike out all the testimony in regard to the position with reference to the platform where the passengers alighted on the night of the accident, (c) In denying defendant’s motion to strike out all the testimony, in regard to the condition of the right of way at the point where plaintiff alighted, as to whether it was slanting or not, and with what it was covered.
II. Error in overruling defendant’s motion made at the close of plaintiff’s testimony and again at the close of all the testimony for a directed verdict, upon each of the reasons assigned by defendant for such directed verdict.
III. Errors in refusing to charge as requested by defendant.

I. The plaintiff lived at Rosebush. She weighed nearly 200 pounds. She had frequently taken trains on defendant’s road at Rosebush and alighted from them at the same station. The testimony disclosed there was at Rosebush station a wooden platform about 4 feet wide and upwards of 150 feet in length, opposite which trains usually stopped when passengers were leaving or boarding the trains. The accident happened about 10 o’clock in the evening. The car in which plaintiff was riding was the first car back of the smoker. When the station was called, she left the car at the front end. The brakeman assisted her to alight. The train, instead of stopping opposite the platform, stopped so that the front end of the car plaintiff was leaving was 30 feet or more from the end of the platform. We think the testimony objected to was entirely competent for the purpose of enabling the jury to determine whether either or both of the parties to the litigation was negligent.

II. Did the judge err in refusing to direct a verdict? The testimony was somewhat conflicting, and from some of it the jury would be warranted in finding defendant negligent, and that the conduct of the plaintiff was that of a reasonably prudent person. There were questions of fact for the jury.

III. Did the judge err in refusing to give some of the defendant’s requests to charge? While we have quoted freely from the charge of the court, we did not quote all of it, but we think it clear, from reading the entire charge, that the jury was fully instructed upon the law of the case. The case was tried with care. We find no reversible error.

Judgment is affirmed.

Brooke, C. J., and Kuhn, Stone, Bird, and Steere, JJ., concurred with Moore, J. Ostrander, J., concurred in the result.

This ease was originally assigned to the late Justice McAlvay.


author: Kuhn, J.

text:
    FIRST NATIONAL BANK OF MANISTEE v. STAR WATCH CASE CO. OF LUDINGTON.
    1. Bills and Notes — Negotiable Instruments — Indorsement— Burden of Proof.
    A plaintiff suing on an indorsement of a negotiable note that was dishonored has the burden of proving notice of dishonor.
    2. Same — Notice of Dishonor — Evidence.
    Where the notary that protested the paper testified that he mailed notice of nonpayment within due time to the indorser, the witness being cashier of plaintiff’s bank, and the payee gave evidence that it received no notice of dishonor, and several days after the maturity there was no protest attached to it, the question whether notice was duly mailed became a question for the jury under section 107, Act No. 265, Pub. Acts 1905, providing that if addressed and deposited in the post office sufficient notice shall be presumed to have been given.
    Error to Mason; Withey, J.
    Submitted January 20, 1915.
    (Docket No. 11.)
    Decided July 23, 1915.
    Assumpsit by the First National Bank of Manistee against the Star Watch Case Company of Ludington on an indorsement of a promissory note. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      A. A. Reiser (Howard L. Ca,mpbell, of counsel), for appellant.

      David K. Tone and Robert J. Quail, for appellee.
   Kuhn, J.

This is a suit brought by the plaintiff to recover on a note given by the Manistee Watch Company to the defendant company for the sum of $5,-994, and which note was discounted by the plaintiff upon its being indorsed by the defendant. At the maturity of the note it was dishonored by nonpayment; the Manistee Watch Company being unable at the time to meet the demand. The note on its face was a foreign bill of exchange, being dated at Chicago, March 24, 1910. On its being dishonored, the plaintiff, according to its claim, took the proper legal steps to bind the defendant to its obligation as indorser upon the note, and, the defendant not having met its obligation as indorser, this suit was instituted to enforce the obligation.

Mr. George A. Dunham, who is the cashier of the plaintiff bank and also a notary public, testified that on March 24, 1911, it being the day on which the note fell due, he presented it for payment to the bank where the note was made payable, and that, payment not having been made, he sent a notice of the nonpayment to the Star Watch Case Company of Ludington, Mich., and that afterwards he wrote up and attached a certificate of protest to the note, and that later on the same day he wrote across the face of the note:

“Protested for nonpayment March 24, 1911.
“G. A. Dunham, Notary Public.”

He further claimed that he took the notice and personally carried it to the post office and there deposited it, it being inclosed in an envelope directing it to be returned to the bank in five days. On the hearing of the case, testimony was admitted by the trial judge to show that the notice of nonpayment was not received by the appellee. It also appears that Mr. Rath, who was the president of the Manistee Watch Company, testified that on March 27th, three days after the note was due, he saw Mr. Dunham, who asked him at that time what he was going to do about the note, and that he was shown the note, and that the words “Protested for nonpayment March 24, 1911,” were not written thereon at that time.

Counsel for appellant thus state the only question which is before us for review:

“The question in this case, then, is simply whether the evidence offered by the defendant of its nonreceipt of the notice was competent and proper proof to be submitted to the jury in contradiction of the sworn testimony of the notary upon the witness stand that such notice was given in the manner required by law.”

Section 107 of Act No. 265, Pub. Acts 1905 (2 How. Stat. [2d Ed.] § 2778), which act is known as the “Negotiable Instruments Acts,” provides:

“Where notice of dishonor is duly addressed and deposited in the postoffice, the sender is deemed to have given due notice, notwithstanding any miscarriage in the mails.”

As a preliminary question, counsel for appellant contend that the court erred in instructing the jury that the burden of proof rested upon plaintiff to establish the fact of mailing the notice, and that the failure to receive notice is rather matter of affirmative defense, special notice of which must be given under Circuit Court Rule 76. We are of the opinion, however, that the trial judge correctly charged that the burden of proof rested upon the plaintiff to show a- compliance with the statutory provisions in order to hold the indorser, as the liability of the indorser depends entirely upon compliance with the statute as to notice. This is sustained by the following authorities: Commercial National Bank v. Zimmerman, 185 N. Y. 210 (77 N. E. 1020); Robinson v. Aird, 43 Pla. 30, 38 (29 South. 633); Rolla State Bank v. Pezoldt, 95 Mo. App. 404, 411 (69 S. W. 51).

It must be conceded that by virtue of the negotiable instruments act it is of no importance whether or not the notice required by the statute is received, if it appears that the notice of nonpayment was placed in the mail as required by the statute. And the question here is whether under the circumstances of this case any question of fact can be raised as to whether or not the notice of nonpayment was actually deposited in the post office as testified to by the cashier. It is true that where a disinterested witness, a notary public, testifies that such notice was properly mailed, or where a properly executed certificate of such a notary public showing such mailing is introduced in evidence, testimony of nonreceipt of the notice has been held immaterial. Bunker on Negotiable Instruments, p. 163, and cases cited. In Roberts v. Wold, 61 Minn. 291 (63 N. W. 739), the court said:

“Evidence that a communication alleged to have been sent by mail was never received may, in many cases, justify a verdict of finding that it was never sent; but such evidence, standing alone and uncorroborated, is not sufficient to overcome the probative force of the solemn official certificate of a notary public to his act of protest. The reasons for this rule are fully stated in Wilson v. Richards, 28 Minn. 337 [9 N. W. 872].”

But in the case before us we are not dealing with the certificate of a notary public, nor with the testimony of what we conceive to be a disinterested witness. The facts here presented are very similar to those in the case of Kingsland Land Company v. Newman, 1 App. Div. 1 (36 N. Y. Supp. 960), in which case the court said:

“The question presented was whether the notice of nonpayment had been deposited in the post office. Vail testified that he personally deposited it, properly directed, with the postage prepaid. But the note was then_ held by the Commercial Bank, and Vail was its cashiqr and a notary public, who undertook to present and protest the commercial paper held by it. He was not a disinterested witness, and we are of the opinion that the credibility of his testimony was for the jury to determine.
“In Canajoharie Bank v. Diefendorf, 123 N. Y. 191 [25 N. E. 402, 10 L. R. A. 676], in speaking of the relation of a cashier to his bank, the court said:
“ ‘The claim that the plaintiff’s cashier was a disinterested witness, whose testimony must be regarded as controlling, if not contradicted, cannot be sustained. * - * He was the financial agent of the plaintiff, and * * * responsible to his principal for the care, fidelity, and prudence with which he discharged his official duties. His interest in the transaction was co-extensive with that of the plaintiff, and brings him directly within the cases which hold that the credibility of such a witness is a question for the jury to determine.’
“We are of the opinion that Vail’s relation to the bank was such that the jury should have been permitted to determine whether his testimony was to be believed.
“The fact that the notice had not been received by the appellant, though it would- have been of very little weight against the positive testimony of a disinterested person that it had been deposited in the post office, was yet a circumstance which, in this case, the appellant was entitled to have the jury consider.”

We are of the opinion that the fact that Mr. Dun-ham was- an officer of the bank, and in that way an interested witness, and the testimony of Mr. Rath as to seeing the note without any writing thereon three days after it was claimed by Mr. Dunham that he made the memorandum, constitute sufficient evidence to raise a question of fact as to whether or not the notice was actually mailed, and justify the court in submitting this question to the jury.

The judgment must therefore be affirmed.

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

The late Justice McALVAY took no part in this decision.


text:
      In re ABBOTT.
    1. Equity — Creditor’s Bills — Debtor and Creditor — Judgment.
    It is a recognized rule that a general creditor must secure a judgment before he can ask for equitable remedies against his debtor.
    2. Same — Corporations—Receivers—Dissolution.
    In proceedings for dissolution of a corporation under chapter 300, 3 Comp. Laws, after appointment of a receiver, an intervening creditor, who had reduced his claim to a justice’s court judgment and caused an execution to be issued that had been returned nulla hona, was in position to intervene without filing transcripts in the circuit and and issuing execution there.
    3. Same — Intervening Parties.
    Such creditors were not required to await a decision of the court on the issue of solvency, but were justified in presenting their petitions to intervene and in asking the aid of the court in the enforcement of their demands.
    4. Same — Remedies—Intervention.
    No independent proceedings in equity were necessary or required; the judgment creditors might file intervening petitions without resorting to a bill in chancery in another suit.
    5. Same — Petition—Distribution.
    And the court was authorized, on their petition, in ordering the corporate assets sold, and the proceeds distributed among the interveners. 3 Comp. Laws, § 9761 et seq.

    6. Same — Situs oe Property — Insolvency.
    Having jurisdiction of the proceedings for dissolution, and having appointed a receiver of the property and assets of the insolvent, the court had power to enforce the rights of the judgment creditors, though the property to be sold was situated in another county.
    Appeal from Wayne; Van Zile, J.
    Submitted January 26, 1915.
    (Docket No. 89.)
    Decided July 23, 1915.

      Charles S. Abbott and others filed a petition for dissolution of the Chippewa Construction Company. John McBride and other creditors filed petitions to intervene. From a decree for interveners complainants appeal.
    Affirmed.

      Selling & Brand and Abbott & Abbott, for complainant Charles S. Abbott.

      Moore & Moore, for intervener C. C. Field.

      Orla B. Taylor, for Hudson Estate and Robert B. Tannahill.

      James G. Kress, for labor creditors.

      Chapman, McNamara & Matthews, for intervener Guffnett and others.

      Corliss, Leete & Moody, for receiver.

      Angelí, Bodman & Turner, for appellees.
   Kuhn, J.

We believe that the facts necessary to properly understand the questions involved in this appeal are clearly and sufficiently stated in the opinion of this court in Abbott v. Circuit Judge, 182 Mich. 61 (148 N. W. 349).

The validity of the order of October 29, 1912, appointing the Detroit Trust Company the temporary or possessory receiver, as it is called is not here brought in question. As counsel for appellant Abbott say in their brief:

“We very clearly stated upon our argument that we do not consider that upon this appeal the question of the validity of the appointment of the temporary receiver should be raised.”

But it is contended that the order of March 29, 1913, appointing the Detroit Trust Company receiver in the intervening judgment creditors’ proceedings, and sequestrating the property of the Chippewa Construction Company, was void, because such a receiver cannot be appointed, under chapter 300, 3 Comp. Laws (that being the chapter with reference to proceedings for dissolution of a corporation), until the coming in of the master’s report (section 10859, 3 Comp. Laws [5 How. Stat. (2d Ed.) § 13567]), and that the proceedings under chapter 300 for the dissolution of the corporation could not be turned into a judgment creditors’ proceeding under chapter 269, 3 Comp. Laws. From this order of March 29, 1913, appointing a permanent receiver, and also from the order of November 12, 1913, ordering the sale of all the property and assets of said company, the appeals now before us were taken.

We think it unnecessary, and it would serve no purpose, to determine in this proceeding whether under chapter 300, supra, the court might appoint a temporary receiver in advance of the decree of dissolution, although counsel contend that it is clearly inferable from the provisions of the statute that such a receiver might be appointed, section- 36 of said chapter (8 How. Stat. [2d Ed.] § 13595) reading as follows:

“Whenever a receiver of the property and effects of a corporation has been appointed before its dissplution, or afterwards, new suits may be brought and carried on by any such receivers, either in their own names, or in the name of the corporation for which they shall have been appointed.”

It should be borne in mind, in considering the situation here created, as is indicated in the opinion of this court in the case of Abbott v. Circuit Judge, supra, that the corporations involved were insolvent when the petitions for their dissolution were filed, and that the appellant Abbott joined in the proceedings which resulted in the appointment of the temporary receiver to secure protection from the assault of creditors whose demands were pressing. He contends, as was stated in the former opinion—

“that he was forced, cajoled, or seduced into participation in the proceedings to dissolve, but he says that a bankruptcy proceeding was the alternative — a fact which was also manifest.”

There is no escape from the conclusion that at the time the petition in the dissolution proceeding was filed it was imperative that some step be taken to delay action on the part of the creditors who were pressing their claims.

The first question which it seems it is necessary to consider is whether, after a petition for the dissolution under chapter 300 is filed, creditors of the corporation are required to wait until the court determines whether it is in the interest of the stockholders that the company be dissolved. This question is determined by the decision of this court in Travis v. McBride, 166 Mich. 126 (131 N. W. 520). There the receiver was not appointed until after the order of dissolution had been made, and it was held that the receiver took the corporate assets subject to the liens of creditors who had levied execution thereon subsequent to the filing of the petition for dissolution and before the date of the receiver’s appointment. But here we have a receiver appointed, in charge of all the property of the corporation by an order of the court, and under these circumstances the question is, What was the proper procedure for the creditors to take in order to protect and collect their claims?

As appears from the previous opinion of this court, two labor creditors, Guflnett and McBride, who had recovered judgments in the justice’s court, for $106.05 damages and costs, and $97.20 damages and costs, respectively, had caused executions to be issued to collect the same and placed them in the hands of the sheriff, and they had been returned unsatisfied, and the judgments remained unpaid. After a hearing by Judge Codd, they were allowed to intervene in the proceedings for the dissolution in behalf of themselves and other creditors. The prayer of the bill was that it might be treated as an intervening petition in the proceeding to dissolve the corporation, and that the court sequestrate the stock, property, things in action, and effects of the corporation, and apply the same to the payment of the indebtedness due complainants and other creditors; that a receiver be appointed, etc. It is contended by appellants that these judgment creditors were in no position to file this petition for intervention — which was in the nature of a judgment creditors’ bill — because they had not exhausted their legal remedies, in that transcripts had not been taken to the circuit court and executions issued thereon, for upon such executions the real estate, as well as the personal property of the corporation, could have been reached.

It must be conceded that the rule is elementary that a general creditor must obtain a judgment before he can have relief against his debtor in equity. McKee v. Garbage Co., 140 Mich. 497 (103 N. W. 906); Hatch v. Daugherty, 145 Mich. 569 (108 N. W. 986); Strelow v. Color Co., 162 Mich. 709 (127 N. W. 716). The reason of this rule is stated by the author of a note to the case of Ziska v. Ziska (20 Okl. 634, 95 Pac. 254) in 23 L. R. A. (N. S.) page 10, to be—

“the same as that which marks the limit of all forms of equitable jurisdiction,'original as well as ancillary, and that is that resort cannot be had to equity where there is an adequate remedy at law. This ancient rule has become so worn and axiomatic that the reason for it is well-nigh forgotten, and perhaps that reason might not be regarded with the same respect now that it was once. Nevertheless the reason still exists, and, if it is borne in mind, will be of great assistance in solving some of the questions arising with reference to judgments as a condition precedent to equitable relief by creditors against their debtors. It will be recalled that the reason for the rule mentioned was this: that, while equity was a welcome refuge from the hard and fast rules of the common law, there was still one institution of the common law which was to be most zealously guarded, and that was the right of trial by jury. Under no circumstances should a court of equity be allowed to swallow up that great privilege. So' the rule was made that equity must not interfere where the remedy at law was adequate. The real basis of the rule that a judgment at law is a condition precedent to affirmative equitable relief on behalf of a creditor is, therefore, that the debtor has the right to have the issue of indebtedness determined by jury.”

In the instant case it must be conceded, however, that although execution might have been issued out of the circuit court if transcripts from the justice’s court judgments had been taken to the circuit court and levies made, nevertheless no sale under such levies could have been had without having filed a petition in the dissolution proceeding asking permission of the court, so to do, in view of the fact that the entire property of the corporation was then in the hands of the court’s receiver. It thus appears, and must be perfectly obvious, that the issuance of a circuit court execution would have been a mere matter of form, and would have been futile as a means of exhausting the remedy at law.

The statute under which proceedings by judgment creditors may be had (chapter 269, 3 Comp. Laws) provides that the jurisdiction shall be exercised “on bill, or petition, as the case may require, or as the court may direct.” Section 9759. Section 9760 (5 How. Stat. [2d Ed.] § 13533) provides:

“Whenever a judgment of law, or a decree in chancery, shall be obtained against any corporation, incorporated under the laws of this State, and an execution issued thereon shall have been returned unsatisfied in part or in whole, upon the petition of the person obtaining such judgment or decree, or his representátives, the circuit court within the proper county may sequestrate the stock, property, things in action and effects of such corporation, and may appoint a receiver of the same.”

It should be noted that this statute does not require that an execution out of the circuit court be returned unsatisfied. And while it may be contended that under ordinary circumstances, under the authorities cited in appellant’s brief, it would be necessary to take out a transcript from a justice’s court judgment to the circuit court and have execution issued and levies made thereunder, in order to exhaust the remedy at law, before a court of equity would assume jurisdiction, nevertheless, considering the situation here presented, we do not think that it should be said that a creditor who has obtained a judgment in a justice’s court, and taken out execution which has been returned unsatisfied, cannot proceed to file a judgment creditors’ bill under the proceedings provided for in chapter 269, 3 Comp. Laws — at all events when the property of the corporation is already in the possession of a possessory receiver appointed by a court of competent jurisdiction. As we have intimated, when the petition was filed for leave to intervene, the property of the corporation was in the custody of the law, in charge of the receiver appointed by the court, and the issuance and attempted levy of execution would have been, it

seems to us, a vain and idle ceremony. Blair v. Steel Co., 159 Ill. 350 (42 N. E. 895, -31 L. R. A. 269); Sage v. Railroad Co., 125 U. S. 361, 8 Sup. Ct. 887. These creditors proceeded in what appears to us to have been an orderly and legal manner, by petitioning the court is. charge of whose receiver the property was, for permission to intervene.

The conclusion here reached amounts simply to this: Although dissolution proceedings were pending, creditors who had a right to enforce their claims were not required to await a decision as to whether the corporation was insolvent or whether dissolution would be for the benefit of the stockholders; they had a legal right to ask the court in whose charge the property of the corporation was to take appropriate proceedings to enforce their rights.

It is earnestly contended that it should not be permitted to change, by intervention, proceedings for dissolution under chapter 300, supra, into an adversary proceeding under chapter 269, supra. But we think that where the funds and property of a debtor are in the hands of a court of equity, judgment creditors should be allowed to file an intervening petition, and should not be bound to resort to independent proceedings in equity. See 12 Cyc. p. 45. The anomalous, situation might otherwise be created of having the judgment creditors’ proceeding pending, and a receiver appointed thereunder, and at the same time, in the same court, a temporary receiver claiming the property of the corporation under a proceeding instituted under chapter 300, supra. Such a situation should, in our opinion, be avoided. Earle v. Humphrey, 121 Mich. 518, 523 (80 N. W. 370), and cases cited; McKay v. Van Kleeck, 133 Mich. 27, 34 (94 N. W. 367).

It is contended that the order of sale was void, because it was premature, in that the court had not finally and formally passed upon all the indebtedness of the corporation, and because the order was improvidently made, in that dissolution proceedings were pending in which all the creditors had a right to prove their claims. In the opinion in Abbott v. Circuit Judge, supra, it was determined that the corporations involved were insolvent when the petition for their dissolution was filed, in that they were unable to pay their debts as they matured in the regular course of business.

Section 9761, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13534), part of chapter 269, provides;

“Upon a final decree on any such petition, the court shall cause a just and fair distribution of the property of such corporation, and of the proceeds thereof, to be made among the fair and honest creditors of such corporation, in proportion to their debts respectively, who shall be paid in the same order as provided in the next succeeding chapter, in the case of a voluntary dissolution of the corporation.”

Chancery Rule No. 31, with reference to the powers and duties of receivers appointed upon judgment creditors’ bills, provides:

“And it shall oe his duty, without unreasonable delay, to convert all the personal estate and effects into money; but he shall not sell any real estate of the debtor without the special order of the court.”

The order of sale was made upon a petition of the judgment creditors, to which an answer was filed by the Detroit Trust Company, receiver of the Chippewa Construction Company, and from the order it appears that the sale was ordered “upon the testimony taken in support of said petition in open court.” No case has been settled upon the testimony or proceedings taken in respect of this order of sale, so that it cannot be said that the question of the necessity or expediency of the sale is before us for determination. We think it was clearly within the power of the court, under the statute above cited, to order the property sold in order to cause a distribution of the property of the corporation and the proceeds thereof to. be made among the fair and honest creditors of such corporation.

We do not think there is any merit in the contention that the proceedings under chapter 269 could not be brought in Wayne county because all the property of the corporation is in another county. At the time that these judgment creditors’ proceedings under chapter 269 were brought, all the property was in the hands of the temporary receiver of the court. As we have stated before, we consider it not only proper, but the orderly method of proceeding, to have instituted these proceedings in the proceedings in which the receiver was appointed.

Being of the opinion that the contentions of the appellants are without merit, the orders appealed from are affirmed, with costs to the appellees, and the cause remanded to the lower court for further proceedings.

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

The late Justice McAlvay took no part in this decision.