text:
    The Blue Iron Mining Company v. The City of Negaunee.

      Taxes — Certificate to assessment roll— Sufficiency.

    A city charter provided that the hoard of review should attach to the assessment roll a certificate, stating, among other things, that they had estimated the real estate described in said roll at what they believed to be the true cash value thereof, and not at the price it would sell for at a forced auction sale. The charter further provided that no general or special tax should be held invalid for the purpose of collecting the same for want of any matter or thing not affecting the merits thereof. And it is held that, under this latter provision, a certificate identical with that prescribed by the charter, exc'ept that the word “auction” was omitted, is a substantial compliance with the charter, as “forced auction sales” are necessarily included in the broader term “forced sales.”
    Error to Marquette. (Stone, J.)
    Argued April 4 and 5, 1895.
    Decided May 21, 1895.

      'Assumpsit. 'Defendant brings error.
    Reversed.
    The facts are stated in the opinion.

      Frank A. Bell (E. E. Osborn and J. Q. Adams, of counsél), for appellant.

      Hayden & Young (Dan H. Ball, of counsel), for plaintiff.
   Hooker, J.

Plaintiff recovered in assumpsit for money paid a tax collector to relieve its property from a levy for a tax. The defendant appealed. At the circuit the case turned on the question of the validity of the certificate attached to the roll by the council, acting as-a board of review.

The charter of the city of Negaunee provides that said board shall affix to the roll a certificate, which may be in the following form:

“We do hereby certify that the above assessment roll contains a description of all the real estate in the city of Negaunee liable to be taxed, according to our best information, and that we have estimated the same at what we believe to be the true cash value thereof, and not at the price it would sell for at a forced auction sale; that the said assessment roll contains a true statement of the aggregate valuation of the taxable personal estate of each and every person named in said roll, and that we have estimated the same at its true cash value, according to our best infórmation and belief.” Local Acts of 1891, page 364, chap. 8, § 3.

The certificate attached was identical with that prescribed, except that the word “auction’’ was omitted.

The charter (chapter 8, § 13) provides:

“No general or special tax assessed in said city, upon any property therein, shall be held invalid for the purpose of collecting the same, for want of any matter or thing not affecting the merits thereof.”

Under this provision, the certificate may be held a sufficient compliance with the law if in substantial accord with that prescribed. In several cases taxes have been held void for want of certificates. Under a former general tax law, the certificate prescribed was substantially like that prescribed by this charter, except that the words used were “forced or auction sale,” instead of “forced auction sale.”

In Silsbee v. Stockle, 44 Mich. 566, the supervisor omitted the words “and not at the price it would sell for at forced or auction sale.” Mr. Justice Cooley, with the concurrence of Judges Campbell and Graves, said:

“The early statutory form did not contain the words which the supervisor has omitted (Comp. Laws 1857, § 806), and the change in the form was made in a. revision of the tax law in 1869. If the change in the form' whereby these words were brought into it had no important purpose in view, we may well hold that the proceedings are not affected by the supervisor continuing the use of the form which had been in use before. But it is a matter of common knowledge that the change was made for the very purpose of effecting an important change in the assessments. It was notorious that supervisors had been in the practice of evading the previous law, and making assessments at a mere fraction of the real value of the property, when sworn to make it at the cash value. It was very easy to excuse the evasion of duty under the pretense that the cash value of the property was only what it would bring if forced upon the market; and the law was amended for the very purpose of taking away this excuse. It will not do to say that such an amendment is unimportant, and therefore may be disregarded with impunity; it goes to the very essentials of the assessment, and was intended, not only to control that, but also, through that, all the subsequent proceedings. There is not the slightest doubt the Legislature intended that the adoption of the form given, or one that should be equivalent in substance, .should be compulsory in every instance. The failure to adopt it is therefore a fatal defect. Clark v. Crane, 5 Mich. 151.”

It will be observed that it this case the entire substance of the averment was wanting.

In Dickison v. Reynolds, 48 Mich. 162, Mr. Justice Cooley, again speaking for the Court, said:

“In the certificate to the assessment roll for 1874, not only was the word ‘true’ omitted before the words ‘cash value’, but the words ‘or auction’ were omitted between the words ‘forced’ and ‘sale.’ We doubt .if we can hold these omissions to be merely clerical and presumptively accidental. This certificate is no mere matter of form. It has been prescribed by the Legislature on reasons supposed to be imperative, and for the purpose of correcting a notorious and very serious abuse. The statutory requirement has always been that the supervisor should assess property at its ca,sh value, and that he should certify the fact; but, in their anxiety to make the assessment low, it has been customary for these officers to assess at a fraction of 'the cash value only, while they excused themselves to their consciences by some such sophistry as that, if the property were put up to a forced or auction sale, it would bring no more than they had assessed it at. The Legislature undertook to render this subterfuge impossible by requiring the supervisor to certify that he had assessed the property at the true cash value, and not at what it would sell for at forced or auction sale; and, as the Legislature has deemed these words necessary to prevent evasions, we are not at liberty to dispense with them. A forced sale is not necessarily an auction sale; an auction sale is not necessarily a forced sale; and it is not admissible, therefore, to say that one of the two terms answers the requirement for both. But, even if they were synonymous, the omission of one, in the light of the history of the statute, has too much the appearance of an intentional departure from the required form, as if the certificate of cash value was made with mental reservation. The defect is fatal.”

Here, again, it will be observed tbat substantial averments were lacking, by reason of the omission -of the word “true” and the words “auction sale.’’ the law. required the certificate to sbow not only tbat the value, fixed was not the price tbat the propery would bring at a forced sale, but it also excluded the price it might bring at an auction sale, which Mr. Justice Cooley very'pertinently said was not necessarily a forced sale. the law excluded two tests of value, while the certificate excluded but one. Sinclair v. Learned, 51 Mich. 343, Daniels v. Watertown, 55 Id. 377, and Westbrook v. Miller, 64 Id. 132, are on all fours with Silsbee v. Stockle.

In Paldi v. Paldi, 84 Mich. 354, the words used were “fixed or auction sale,” instead of “forced or auction sale.” Mr. Justice Cahill very truly said that the Court-could not say that this was a clerical error, or that it was intended by the supervisor that the word “fixed” should have the same meaning as “forced.” He cites Fuller v. Hannahs, 44 Mich. 578, saying that the only words omitted in that case were the words “as aforesaid;” but an examination of the case wiíl show that this omission was tantamount to the omission of the wordsomitted in the case of Silsbee v. Stockle, and that it carries the rule no further than does that case. It is noticeable that the case of Paldi v. Paldi leaves room- for the! inference that, if the word “fixed” could have been said to mean “forced,” the certificate would have been valid. It is also significant that Mr. Justice Cooley, in the two.' opinions quoted from, has taken the pains to sbow that the words used were not synonymous with those pre?, scribed, and that the variance was consistent with a mental reservation, or an evasion by the officer of the spirit as well as the letter of the act. We may reasonably conclude that, bad the word “compulsory” been used instead of “fixed,’’ Mr. Justice Cahill would have hesitated before holding the certificate insufficient; while, had the certificate in Dickison v. Reynolds contained the words “at forced sale or public vendue,” it is not improbable that the Court would have found the terms used synonymous with those prescribed. Another significant fact in. connection with these cases is that they appear to proceed upon the theory that these variances may be designated as shifts or evasions, to enable the assessing officer to1 list the property at a lower valuation than the law requires. Mr. Justice Cooley, in Silsbee v. Stockle. alludes to the “notorious practice of making assessments at a mere fraction of the cash value,” and says that the purpose of the amendment was to cure the evil. He discusses the subject in much the same strain in Dickison v. Reynolds.

We therefore conclude that if the certificate in this case is not open to this criticism, and if the term actually used is so broad as necessarily to include the words prescribed by statute, we may properly distinguish it from those cases, and hold the certificate valid. The words required by the charter are “forced auction sale;” the words used were “forced sale.” The form prescribed does not include all auction sales, but only forced auction sales, and they are necessarily included in the term “forced sales,” and the object of the law is fully met by the use of the broader term “forced sales.” We think, therefore, that the court erred in holding this certificate invalid.

The judgment must therefore be reversed, and a new trial directed.

McGrath, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.


source: Caselaw Access Project

author: McGrath, C. J.

license: Public Domain

text:
    Arthur Yeomans et al. v. William E. Parker et al.

      Mechanic’s lien — Sufficiency of affidavit — Set-off.
    1. A claim of lien signed and verified by one member of a firm, in which he states that he is such member, giving the names of the remaining members; that he makes the affidavit for and on their behalf; that the firm furnished the material for which the lien is claimed in pursuance of a contract with the contractors; and that there is justly due said firm therefor a specified sum, for which said firm claims a lien, — properly shows the deponent’s interest in and authority to make and verify said claim of lien.
    2. A building contract provided that the contractors should complete the building to the entire satisfaction of the proprietor and architects, and the architects were given full power to reject all materials and workmanship not in full accordance with the spirit and meaning of the plans, drawings, and specifications, which were declared to form a part of said contract. After twice notifying the contractors to proceed with the work, the architects served a notice upon the contractors that they intended, in order to facilitate the work, to put a force of carpenters on the house, and have factory work ready by a given date; that all charges against the job would go against the contract; but that, if the contractors desired to effect a settlement, the architects were ready to talk to them. The contractors did not respond, or make any effort to comply with the contract, and, after waiting a reasonable time, the architects, who complained not only of the delay, but of the unsatisfactory character of the work, received bids from a number of persons for the completion of the work, and let the contract to the lowest bidder. The contractors neglected on demand to deliver up the plans and specifications, and the eontraetee was obliged to pay the architects for new ones. And, in proceedings by subcontractors to enforce a claimed lien, it is held that the eontraetee was entitled to offset as • against the original contractors or the subcontractors the actual cost of the completion of the work, including the amount paid the architects for new plans and specifications.
    3. The court refused to allow the amount paid by the eontraetee to subcontractors wbo did the plastering, included in the original contract, and wbo refused to proceed unless tbe contractee would guarantee tbe payment to them of tbe contract price for said work, which tbe contractee did. And it is held that he should have been allowed said item.
    Appeal from Wayne. (Lillibridge, J.)
    Argued April 3 and 4, 1895.
    Decided May 21, 1895.
    Bill to enforce a mechanic’s lien. Defendants appeal.
    Decree modified.
    The facts are stated in the opinion.

      George IF. Radford and Edward A. Barnes, for complainants.

      James H. Pound, for defendants.
   McGrath, C. J.

This is a proceeding to enforce a subcontractor’s lien under Act No. 216, Laws of 1885.

There is no force in the objection that the claim of lien does not properly show the affiant’s interest and authority.

The other objections to the form of the affidavit, to the omission of the notary’s name in the copy filed, and to the proof of service, are disposed of by Kirkwood v. Hoxie, 95 Mich. 62.

The defendants Matthews agreed to complete the house to the entire satisfaction of the proprietor and architects for $1,970, and the architects were given full power to reject all materials and workmanship not in full accordance with the spirit and meaning of the plans and specifications. As early as July 26, 1890, the architects served the following notice upon the contractors:

“You having had due notice, and nothing having been done on Mr. Parker’s house, we will start men to work there, and charge ■ to your contract as per contract signed.”

Again, on. October 4, 1890, another notice was served setting forth' that— • ....

■ “The work is dallying along at Mr. Parker’s house in-an unsatisfactory manner. Your contract and work is two weeks overdue,” etc.

No attention was paid to this letter, and on October 8, 1890, the following notice was served:

“We hereby notify you that, in order to facilitate work on Mr. Parker’s house, we intend to put a force of carpenters on house, and have factory work ready by Monday next. This in accordance with general conditions, last paragraph. In this way all charges against job would go against your contract; but, if you want to effect settlement now, we are ready to talk to you.”

The contractors did not respond, nor did they make any effort to comply. After waiting a reasonable time, the architects, who complained not only of the delay, but of the unsatisfactory character of the work, received bids from a number of persons for the completion of the work, and let the contract to the lowest bidder. It cost Parker $734 to complete the work, and, because the original contractors neglected on demand to deliver up the plans and specifications, Parker was compelled to pay $50 additional to the architects. The circuit judge allowed Parker $600 for completing the work, basing that allowance upon estimates of witnesses as to the probable cost of completion.

The evidence was uncontradicted that the architects took proper measures' to let the contract; that a number of bids were received; and that the contract was let to the lowest bidder. The evidence tends to show entire good faith on the part of the architects. Under such circumstances, Parker was entitled to offset as against the original contractors, or as against any subcontractors, the actual cost of the completion of the work, including the amount paid to the. architects.

The court refused to allow the amount paid by Parker to the subcontractors who did the plastering. The plastering was included in the contract with Matthews & Son, and the parties to whom this amount was paid took the subcontract. They, however, refused to proceed unless Parker guaranteed the payment to them of the contract price. Parker did so, and subsequently paid the same, and we think he should have been alloVed that item.

Otherwise the decree is affirmed, with costs of this Court to defendant Parker.

Grant, Montgomery, and Hooker, JJ., concurred. Long, J., did not sit.


author: Long, J.

text:
    Henry G. Poupard v. Joseph Dumas.

      Malicious prosecution — Advice of counsel — False imprisonment.

    1. Where, in a suit for malicious prosecution in causing the arrest of the plaintiff on a criminal charge, it appears that the defendant fairly submitted to his counsel all the facts that he knew were capable of proof, and acted bona fide on the advice given in making the complaint, he negatives the want of probable cause, and is not liable, even though the facts did not clearly warrant the advice and prosecution.

    2. Where a party goes before a magistrate to make a criminal complaint, accompanied by counsel, expecting to make complaint in writing, and that a warrant will issue in the usual way, and is in no manner at fault that it does not so issue, he cannot be held liable for the act of the magistrate in directing the arrest of the respondent without a warrant.
    Error to Wayne. (Donovan, J.)
    Argued April 5, 1895.
    Decided May 21, 1895.
    Case. Defendant brings error.
    Keversed.
    The facts are stated in the opinion.

      Albert J. Chapman, for appellant.

      Edward 8. Crece and Thomas P. Penniman, for plaintiff.

       For cases bearing upon the effect of legal advice a.s a defense in an action for malicious prosecution, see Harris v. Woodford, 98 Mich. 147, and note; Govaski v. Downey, 100 Id. 429; Thompson v. Price, 100 Id. 558; LeClear v. Perkins, 103 Id. 131.

   Long, J.

This was an action for damages for false imprisonment and malicious prosecution. Plaintiff recovered judgment in the court below for $1,000.

Plaintiff was arrested for obtaining money by means of false representations. The complaint was made to a police magistrate in Detroit by the defendant. One of the defenses made upon the trial of the present case was that defendant, before making the complaint, stated fully all the facts and circumstances within his knowledge to Albert J. Chapman, an attorney at law, and that he relied upon his advice in making the complaint. Mr. Chapman testified that the facts were fully stated to him by the defendant; that he advised the making of the complaint after such statement was made; that he went with the defendant before the magistrate, and there, in the presence of the defendant, laid the case before him, and stated fully the facts communicated to him by defendant, and in his presence; that the magistrate suggested that he would send an officer for the plaintiff, and that he would not, at that time, issue a warrant, but, if Mr. Dumas (the defendant here) was needed he would send for him; that Mr. Chapman remonstrated about arresting Poupard without a warrant, but the magistrate insisted on having the arrest made in that way. The magistrate testified that he suggested the bringing of Mr. Poupard in without a warrant, and he apparently sent the officers to make the arrest. While the magistrate testifies that he has no recollection about Mr. Chapman stating the facts to him, he does not contradict defendant’s statement that the facts were all stated that defendant now testifies to.

The court charged the jury:

“You have a right to consider what Mr. Dumas did; that he went to counsel in order to shield him. Not that one fact that he took counsel to shield him, because a man might abuse that privilege to go to counsel and lay a matter before his counsel, and say lie acted upon the advice of his counsel; but you may take that into account. He went to a man learned in the law, presented his matter, and acted upon his advice. Because you must remember that men in their actions have motives; that they are governed by something; and if this Sir. Dumas went,' as he did, to Mr. Chapman, and took legal advice, and acted upon it, you are to consider that as one of the circumstances, and one of the circumstances in his favor ; that is, that he acted not so rashly thereby. Had he gone in, and without taking any counsel, while it would not be absolutely exonerating him (the fact that he took counsel), it would be in his favor. But when he comes to the police justice, to'the magistrate, and states his case, he is bound in law, in view of the rights of other people— he is bound to state all the case. He will state it truly and fairly, that no man’s rights will be trespassed upon.”

This charge does not state the law. There is no distinction between civil and criminal actions upon the questions of probable cause and malice. In this State the rule has been adopted and followed that, where one places all the facts before his counsel, and acts upon his opinion, proof of the fact makes a case of probable cause, provided the disclosure appears to have been full and fair, and no material facts withheld. In LeClear v. Perkins, 103 Mich. 131, decided in December, 1891, the cases were fully discussed, and the rule stated that, if a prosecutor has fairly submitted to his counsel all the facts that he knows are capable of proof, and has acted bona fide on the advice given, he negatives the want of probable cause, and is not liable to an action for malicious prosecution, even though the facts did not clearly ’warrant .the advice and prosecution. The cases are so fully considered in that case that it would not be profitable to restate them here. The charge was in direct conflict with the settled law of the State.

In view of the fact that a new trial must be awarded, we think it proper to state that the defendant could not be held liable for the apt of the magistrate in directing the arrest of the plaintiff without a warrant, even if liability could attach to any one for that act. He went before the magistrate to make a complaint, accompanied by counsel. It is apparent that the defendant and counsel expected to make complaint in writing, and that a warrant would issue in the usual way, and the defendant was in no manner at fault that it did not, as' appears by all the testimony in the case.

We do not deem it necessary to discuss the various assignments of error that are raised. Upon á retrial the court will undoubtedly protect the rights of the defendant.

• The judgment must be reversed, and a new trial awarded.

The other Justices concurred.


author: Grant, J.

text:
    Samuel Krause, Administrator, etc., v. The Equitable Life Assurance Society of the United States.
    [See 99 Mich. 461.]

      Life insurance — Surrender of policy — Evidence.
    1. In a suit by an administrator upon a policy of insurance payable to the decedent, his executors, administrators, or assigns, the defendant sought to defeat a recovery by proof of the surrender of the policy, and the issuance of a policy payable to certain beneficiaries therein named. And it is held that plaintiff can recover only upon proof of the existence' of the first policy, and the question of such alleged surrender was properly left to the jury.
    • 2. A clerk or stenographer in the office of the general agent of an insurance company is not an officer or agent of the company, within the meaning of that portion of 3 How. Stat. § 7545, which provides that when any suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person against a corporation or its assigns, no person who is or has been an officer or agent of any such corporation shall be allowed to testify at all in relation to matters which, if true, must have been equally within the knowledge of such deceased person.

    3. The mere fact that a life insurance policy is returned to the general agent of the company, and by him to the company, for the sole purpose of changing the terms of the payment of the premiums and the beneficiary, does not operate to cancel the policy, or give the company the right to demand a new health certificate.
    4. In a suit by an administrator upon an insurance policy, the main issue of fact involved was whether or not the policy had been surrendered, and a new one issued in its place. The policy sued upon provided for the payment of an annual premium, while the one issued, as claimed by the defendant, on the surrender of said policy, called for the payment of the same premium in quarterly installments, and made the insurance payable to certain beneficiaries therein named. After the negotiations for the change in the policy, the premium note given on the issuance of the first policy was paid, and the plaintiff claimed that such payment established the validity of said policy; that the assured had then the right to treat it as in force, and, having tendered the payment of the second annual premium, the plaintiff was entitled to recover. The testimony on the part of the defendant tended to show that the mistake in collecting the full amount of the note was promptly corrected, the assured notified, and the amount collected, less one quarter’s premium, tendered back, and that, at the time of the death of the assured, the defendant held the second policy for delivery to the assured when called for. And it is held that, under such circumstances, the collection of the note cannot be held to have operated as a waiver of the new arrangement, if one was made, and to have conclusively established the restoration of the first policy;, and that it was a question for the jury to determine whether, under all of the evidence, such an agreement was made, and whether it was in force.

      Error to Wayne. (Maxwell, J., presiding.)
    Argued April 5, 1895.
    Decided May 21, 1895.

      Assumpsit. Defendant brings error.
    Reversed.
    The facts are stated in the opinion, and in 99 Mich. 461.

      Atkinson & Haigh, for appellant.

      Edward A. Gott (Alfred Bussell, of counsel), for plaintiff.

       For cases bearing upon the construction of the portion of How. Stat. § 7545, above cited, see Krause v. Life Assurance Society, 99 Mich. 461, and note; Latourette v. McKeon, 104 Id. 156, and note.

   Grant, J.

This case was before us at the January term, 1894. 99 Mich. 461. Upon the second trial plaintiff recovered. The case was submitted to the jury, with the instruction that if they should find that the first policy was surrendered under an agreement to change the beneficiary, and that agreement was carried out and the change effected, the plaintiff could not recover, but that, if this agreement was not carried out, the plaintiff was entitled to recover. After the writing of the letter found in the former opinion, plaintiff wrote two other letters to the agent of the company at Detroit, demanding the delivery of the first policy. In reply to these letters, the general agent, under date of March 25, wrote plaintiff as follows:

“Your brother applied for $1,000 policy, annual premium, for which he gave agent Heffron a note of $48.70. He afterwards came to this office, and informed me that he was not able to carry the insurance, and that he could r.ot pay the premium, and returned the policy. I then proposed that, if he would pay the quarterly premium, T would have the policy changed, and he could pay the premiums quarterly, amount $12.91. He consented to this arrangement. The agreement with him was as follows: I was to hold the note until the return of the policy changed. When advised that the policy was returned to this office, he promised to come in and take possession of it, and pay the quarterly premium, and I would surrender the note. This promise was not complied with. I wrote him at least two letters, advising him that the policy was here for his acceptance. To these letters I never received a reply. I afterwards gave; the, note to agent Heffron, and requested him, if possible, to find Krause, and collect the quarterly premium of $12.91, and return him the note, and also to collect the second quarterly premium, provided a health certificate would be furnished by the assured. This is the entire matter and all the instructions that have been given. Mr. Heffron erred in forwarding the note for collection without instructions, as before mentioned. As the case now stands, Mr. Heffron is entitled to only the first quarterly premium of $12.91. The renewals for the second and third quarter cannot be delivered on payment of the premium, only on receipt of a satisfactory health certificate from one of our medical examiners. The attorney has been instructed to return you the money, less $12.91.”

Plaintiff testified that his brother told him that he intended to have the policy changed so as to make the payment of premiums quarterly, and the loss, if any, payable to his mother, or, if she did not survive him, to his unmarried sisters. A second policy was made out corresponding in all respects with the first, except that the payments were to be quarterly, of $12.91 each, and the loss was made payable to his mother if she survived him, and, if not, to his unmarried sisters. This policy, at the date of his death, was in the hands of the general agent. The amount of the premium of the second policy exceeded the first by $2.94. Practically, however, the premium was the same, the difference being interest. Defendant gave evidence tending to show that Mr. Heffron, the solicitor, had been charged with the amount of the note by Mr. Day, to whom the same had been delivered; that Mr. Day returned the note to Heffron, stating that he had no right to collect any more than the first quarterly premium; that Heffron had been credited back with the amount of the note less such quarterly premium; that Heffron sent the note to an attorney at Ann Arbor for collection, without any other instructions except to collect; that plaintiff, for his brother, paid to the attorney at Ann Arbor the full amount of the note, which amount was offered to Mr. Day, who refused to receive it; that the attorney tendered the amount back to the plaintiff, who refused to receive it; that at that time the assured was sick with a disease from which he died December 15 following; that defendant charged the first' premium for a year to Mr. Day; that, on receiving the first policy and issuing the second, the same was credited back, except the premium for one quarter. The father and mother and the sisters of the deceased assigned all their interest in the policy to the plaintiff, which assignment was forwarded, with proofs of death, to the defendant. A proper tender of the second year’s premium was made to the defendant.

A valid contract of insurance was consummated by the issuance of the first policy and the- acceptance by Day of a note for the premium. The mere fact that the policy was returned to the general agent, and by him to the company, for the sole purpose of changing the terms of payment and the beneficiary, did not operate to cancel the policy, nor give the right to demand a new health certificate. Nor is it claimed by the defendant that a new certificate was required until after default in the payment of the premium. It is, however, insisted on behalf of the plaintiff that the payment of the note on March 13, 1890, after the negotiations for the change in the policy, established its validity; that the deceased had then the right to treat it as in force, and to pay the annual premium for the second year; and that, having tendered it, plaintiff is entitled to recover. We, however, feel compelled to hold otherwise. If the statements of Mr: Day in his letter were true, he had compliéd with the new arrangement with the assured, and held the second policy for delivery to him when called for. If the defendant’s testimony was true, the mistake in collecting the full amount of the note was promptly corrected, the assured notified, and the amount tendered back. Under such circumstances, the collection of the note cannot be held to have operated as a waiver of the new agreement, if there was one, and to have conclusively established the restoration of the first policy. It became, therefore, a question of fact for the jury to determine whether, under all the evidence, such an agreement was made, and whether it was in force. Plaintiff sued as administrator, and not as assignee. He therefore could recover only upon proof of the existence of the first policy, for the estate of the deceased had no interest in the second policy. The question was therefore properly left to the jury, and it remains to determine whether any error occurred upon the trial.

Testimony of a clerk or stenographer in the office of Mr. Day was offered, to show that she was present when the alleged agreement was made between the assured and Mr. Day for a change in the policy, and what it was, and excluded upon the ground that the facts were equally within the knowledge of the deceased, and inadmissible under the statute. This was error. She was not an “officer or agent” of the company, within the meaning of the statute. Brennan v. Railroad Co., 93 Mich. 160. In fact, she was not in the employ of the company, but was an employé of the general agent in Detroit.

We think the court committed error in saying to the jury that the defendant insisted upon a new examination for a 'health certificate, as a condition precedent to the issue and delivery of the second policy. The company could not and did not make such a claim. It only claimed such right in case the assured had defaulted in the payment of his premium, which it insisted it had done. The effect of such default, if any there was, is not now before us, and upon it we express no opinion.

Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    Jane Gage v. The Pontiac, Oxford & Northern Railroad Company.

      Railroad companies — Purchase on foreclosure — Defective crossing— Proximate cause.

    1. The obligation imposed upon a railroad company by 3 How. Stat. § 3323, subd. 5, as amended by Act No. 90, Laws of 1891, to restore a highway across which it has constructed its road to its former state, as near as may be, and to construct suitable crossings for the passage of teams, rests equally upon a railroad company which receives a conveyance under 3 How. Stat. § 3408», of the railway or railroad tracks and their appurtenances of another company from the purchaser thereof upon the foreclosure of a mortgage of the property and franchises of said eompahy.i
    2. Where, upon receiving such conveyance and commencing to operate the railroad so conveyed, the railroad company- finds that in order to make the approach to a bridge, which its predecessor found it necessary to construct by reason of a cut at a point where its road crossed a public highway, reasonably safe for public travel, it was and is necessary to erect barriers at the sides of said approach, which duty has not been performed, it is the duty of the company receiving said conveyance to erect such barriers, and it will be liable for an injury thereafter received by reason of its failure to perform said duty.
    8. A railroad company, in order to enable the public to pass over a bridge which it had erected over a cut at a point where its road crossed a public highway, constructed an approach to said bridge from dirt taken from the cut. Said approach was built as steep as the dirt would lie, was about 16 rods long, and, at the place where plaintiff received the injury co-m- . plained of, was 12 and one-third feet wide, and 13 and one-third feet high from the natural level of the ground on either side. Before the building of the bridge and approach, the ' highway was perfectly safe for public travel. And it is held that it was a question for the jury to determine whether barriers were or were not necessary; citing Malloy v. Township of Walker, 77 Mich. 448.
    4. Plaintiff was riding in a sleigh, drawn by a horse 13 years old, kind and gentle, and which had been safely driven over the bridge a great many times before. * At the foot of the approach the driver, in order to lighten the burden of the horse, the traveled track being barren of snow, got out of the sleigh, and walked beside and drove the horse from the right side. While thus driving in the center of the track, and about 3 or 4 feet from the edge of the embankment, as shown by plaintiff’s evidence, the horse made a sudden shy to the right, went over the embankment, drawing the sleigh after him, and plaintiff was thrown out and injured. The defendant’s evidence tended to show that the sleigh, an the point where the tracks went off, was being drawn within a foot and a half or two feet of the embankment; that the roadbed was muddy, but along the side there was some snow; that there was a path along the embankment on each side;, and one of defendant’s witnesses testified that he saw plaintiff and the driver just as they were driving up the approach, and it looked as if the horse stumbled or slipped, lost his bal-’ anee, and fell over the embankment. It appeared from all of the evidence that there was no train coming, no teams' near the horse, or other thing to frighten him, and that there" was no defect in the highway. The jury, under a proper charge, found that the horse was under the control of the-driver. And it- is held that it cannot be said, as matter of' • law, 'that the mere shying of the horse, and not the improper and dangerous condition of the highway (absence of barriers), was the proximate cause of the injury; that they were' apparently concurring causes, — the one, the shying of the' horse, where neither party can be said to have been in fault; and the other, the defect in the highway, for which, under the finding of the jury, the defendant is liable.
    Error to Tuscola. (Beach, J.)
    Submitted on briefs April 17, 1895.
    Decided May 21, 1895.
    Negligence case. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Aug. O. Baldwin, for appellant.

      J. D. Brooker and T. O. Quinn {Black & Dodge, of counsel), for plaintiff.

       3 How. Stat. § 3408a, provides “that upon the foreclosure of any mortgage of the property and franchise of any railroad corporation, if the railway or railroad tracks and its appurtenances are or have been sold at the sale thereunder, the purchaser or purchasers are hereby authorized to sell and convey the property so purchased, together with all the rights and franchises acquired under said sale, to any other railroad company or corporation authorized by the laws of this State, not having the same terminal points, and not being a competing line, and upon such sale and the confirmation thereof, as herein provided, the company receiving such conveyance shall have the same rights, powers, and privileges, and franchises as are or may be secured to the original company whose property may have been sold under such decree.”

   Long, J.

This action is brought by the plaintiff to. recover damages from the defendant for negligently, maintaining an unsafe and dangerous approach to a cross-, ing over its railroad, constructed by the Pontiac, Oxford. & Port Austin Railroad Company, the defendant’s predecessor, across a public highway, and upon which approach the plaintiff sustained permanent injuries on the 23d day of February, 1892, by being thrown down the aforesaid embankment, together with the vehicle in which she was riding and the horse hitched thereto.

In the year 1881 the Pontiac, Oxford & Port Austin Railroad Company constructed its railroad across the angling highway running north-easterly and south-west-, erly across section 1 of the township of Elmwood, in the county of Tuscola. At the point in said highway, crossed by said railroad the said company made a cut, necessitating the building of a bridge by the company. This bridge was about 20 feet higher than the natural level of the ground. It was about 95 feet long, and 11 feet 4 inches wide. In order that persons using this angling highway could get on and over the bridge, said. company constructed an approach on the north-easterly side of said bridge. This approach was built of dirt taken from the cut, was built as steep as the dirt would lie, and about 16 rods long, and was from 12 to 13 feet wide. At the place where the accident to the plaintiff occurred, the approach was 12 feet 4 inches wide, and 13 feet 4 inches high from the natural level of the ground on either side. Before the building of the bridge and approach, the highway was perfectly safe for public travel. The defendant company has owned and operated the railroad upon which are this crossing and the approach since March 1, 1889. It appeared that the Pontiac, Oxford' & Port Austin Railroad Company constructed this railroad under contract with the Farmers^ Loan & Trust Company, and that a mortgage was given this company, which, upon default, took possession of the railroad, and operated it for a time. Subsequently this mortgage was foreclosed, and the railroad bid in by a committee representing the bondholders, who transferred the same to the defendant company.

• Plaintiff’s evidence, and the evidence of William C. Come, who was driving the vehicle in which the plaintiff was riding at the time of the accident, show that plaintiff and Come started from the home of plaintiff, situated about a mile and three-quarters from this approach, to drive to the village of Gagetown. There was no other road to Gagetown from plaintiff’s home without going around a square, nearly four miles. Come was driving a horse hitched to a sleigh. At the foot of the approach Come got out of the sleigh, and walked beside and drove the horse from the right side of the sleigh, and continued driving the horse from that position until the plaintiff and the horse and sleigh went down the side of the approach. The reason for Come’s getting” out of the sleigh and driving from the side of the same was to lighten the burden of the horse, the traveled track of the approach being barren of snow, and because one of the tugs of the harness was weak. Come was driving in the traveled track, and in the center of the track, and about three or four feet from the edge of the embankment. When about 60 feet north-easterly from the bridge, the horse made a sudden shy to the right, and went over and down the embankment, and drew the sleigh after him. Plaintiff was thrown from the seat of the sleigh very close to or on the horse’s head, and thereby sustained the injuries complained of.

The bridge and the approach were erected in 1881 or 1882, and the place where the horse and sleigh went over was outside the defendant’s right of way. There were no barriers along the embankment. The defendant gave* evidence tending to show that the sleigh was being drawn within a foot and a half or two feet of the embankment where the tracks went off; that the roadbed was muddy, but along the side there was some snow; that there was a path along the embankment on each side. One of the defandant’s witnesses testified that he saw the plaintiff and Come just as they were driving up the approach, and it looked as if the horse stumbled or slipped, and lost his balance, and fell over the embankment. It appeared from all the evidence that there was no train coming; no teams near the plaintiff’s horse, or other thing he cause fright to the horse. There was no defect in the highway; and the only explanation given for the going over is that of Coiné, and the cfcCendant’s witness who testified that the horse seemed to have stumbled or slipped. Plaintiff’s claim is that the original highway was safe; that it was the duty of the railroad company, when it made the crossing, to restore it to its original condition, as nearly as possible, or at least to make it reasonably safe for those passing over it; that it never was so made; and that, therefore, it was the duty of the defendant company, when it became the owner, to restore it or make it reasonably safe; that, if barriers had been erected, the injury would not have occurred.

The defendant contended—

1. That the railroad was built by another company, between which and the present owner there was no privity.
2. That the embankment having been built in 1881 or 1882, and remaining without objection or accident resulting until the first company had entirely passed out of existence, the presumption is that it was built originally in due compliance with the law, and the new company, becoming the purchaser in 1880, was under no obligation to look outside of its right of way or perform any duty in such places.

These two propositions may be discussed together. The statute makes it the duty of railroad companies to restore the highway to its former state, as nearly as may be, and to construct suitable crossings for the passage of teams, etc. How. Stat. § 3323. The court below directed the jury substantially that it was the duty of the original company to construct a reasonably safe approach to the bridge, — that is, comparing it with the original highway, and that it was a question for the jury to say whether, from its height, width, and situation, and absence of railings, it was or was not a reasonably safe approach as compared with the original highway; that, if no proper approach had ever been constructed, when the defendant company purchased, it was the duty of such company to construct it so as to make it reasonably safe. We think there was no error in this charge. The question is not raised whether the approach had once been constructed and got out of repair, as it appears that no railings or barriers had ever been erected, and the only question was whether it had ever been made safe by either company. It is settled in Thayer v. Railroad Co., 93 Mich. 150, that the obligation imposed by this statute continues until its proper discharge. The defendant in that case purchased from the former company, which built the road; and it was said by this Court that, by the transfer to it, the defendant took subject to all the obligations and duties prescribed by the general railroad law. Act No. 10, Laws of 1889. We think the obligation rested equally upon the defendant company here, though it took its title through foreclosure of the mortgage. If, when it took title and commenced operating the road, it found that its predecessor had not restored the highway, it was its duty to do so. Act No. 35, Laws of 1887, confers upon other railroad companies purchasing at foreclosure sale all the rights, privileges, and franchises held and enjoyed by the original company; and the defendant must be held to the same obligations and duties to the public as the former company, and if, to make the road safe, it was necessary to erect barriers there, it was the duty of the company to do so. Thayer v. Railroad Co., supra. It was a question for the jury to determine whether barriers were necessary. Malloy v. Township of Walker, 77 Mich. 448.

It is contended, further, that the proximate cause of the injury was not the want of railings or barriers. The top of the roadbed was 12 feet 4 inches wide at that place. It was a smooth road, with no obstructions in it, and the plaintiff and her driver had for several years passed over it in safety. The horse was 13 years old, kind and gentle, and had been driven there a great many times. No accident had ever happened before. Plaintiff’s witness Come explains the way the accident happened by saying that at this point—

“The horse pricked up his ears, and looked off to the left side as though he saw something, made a sudden shy to the right, and went down to the bottom of the embankment.”

While defendant contends that the driver did not have control of the horse at that time, we find no evidence to that effect, as we cannot say that he lost control, or had not as good control of it while on foot as he would have had if riding in the sleigh. Whether he was negligently driving was a question for the jury, and the court submitted that question as follows:

“If the jury find that the highway in question had been traveled uninterruptedly for a period of 10 years nearly without an accident having resulted, and was in passable condition at the time of the accident to the plaintiff or the injury to the plaintiff (the question whether it was an accident or injury is a question of fact for you, gentlemen), and was from 12 to 18 feet in width at that place, and that she and the horse and driver had frequently traveled over the highway, and were well acquainted with it, and, instead of traveling in the usual traveled track of the same, they voluntarily traveled on the side thereof at that place, — that is, on the edge of the embankment, — thus causing the accident, then the defendant would not be liable, and the plaintiff could not recover. And the same may be said in relation to the absence of railings. If there was no railing there, It was the duty of the plaintiff to exercise due care in driving near the edge of the embankment.”

The charge was in accordance with the rule laid down in Langworthy v. Township of Green, 95 Mich. 93. The jury found, under this charge, that the horse was under the control of the driver; and it cannot be said, as a matter of law, that the mere shying of the horse, and not the improper and dangerous condition of the highway, was the proximate cause of the injury. They were apparently concurring causes, — the one, the shying of the horse, where neither party can be said to be in fault; and the other, the defect in the highway, for which, under the finding of the jury, the defendant company is responsible.

In Hunt v. Town of Pownal, 9 Vt. 411, the rule was held that if there be no fault on the part of the plaintiff which common sagacity and forecast could have anticipated and provided against, and the loss be the combined result of accident and the insufficiency of the road, the plaintiff may recover. This rule is also held in Ring v. City of Cohoes, 77 N. Y. 83.

In Palmer v. Inhabitants of Andover, 2 Cush. 600, it was held that,—

“In an action against a town to recover damages for an injury alleged to have been caused by a defect in a highway occasioned by the want of a rail or barrier, the town will be liable therefor if such rail or barrier were necessary for the proper security of travelers, and would have prevented the happening of the injury complained of.”

In Houfe v. Town of Fulton, 29 Wis. 296, it was held that where, besides the defect in the highway, there is another proximate cause contributing directly to produce the injury, which cause is not attributable to plaintiff’s negligence nor that of any third person, the town is still liable in case the jury find that the damage would not have been sustained but for the defect in the way. So held where plaintiff’s horse, passing over a bridge without guards, suddenly stopped, staggered, and fell sidewise, and went over the side of the bridge into the river, carrying him with it; there being no want of caee and prudence on plaintiff’s part. It was said in this case that—

“Whether the same rule would apply where the horse, at the time of the injury, was in a condition of flight or unmanageableness, not itself caused by any defect in the highway, is .not decided. But, if there is an exception of that kind, it does not include cases where a horse merely shies or starts or is momentarily not controlled by the driver.”

The distinction there stated was made by this Court in Bleil v. Railway Co., 98 Mich. 228. In that case the injury occurred through the horse’s taking fright at an object remote from the accident, and while not under the control of the driver, and running against some rails piled by the side of the street. The doctrine of an intervening cause was also applied in St. Clair Mineral Springs Co. v. City of St. Clair, 96 Mich. 463.

It is apparent that the injury in the present : case would not have occurred if tbe defendant company had discharged its duty in respect to this highway, and that no fault was attributable to the plaintiff is settled by the jury.

The judgment must be affirmed.-

The other Justices concurred.

       3 How. Stat. § 3408a.

       In support of this contention, counsel cited Smith v. County Court, 33 W. Va. 713; Herr v. City of Lebanon, 149 Penn. St. 222.


author: Hooker, J.

text:
    Aylena Youell v. Andrew J. Kridler.

      Lease — Assignment—Surrender—JEteletting—Questions for jury.

    A lessee, in violation of his covenant not to assign the lease or sublet the leased premises without the written consent of the lessor, assigned the lease. The assignee made a second assignment, and, at the request of the lessee, the lessor consented to the occupancy of the premises by the second assignee, coupled with the statement that she should look to the lessee for the rent. The second assignee arranged to sell his interest in the lease, and the proposed purchaser and the lessee, the latter representing the second assignee, called upod the lessor, who, as she testified in an action brought by her against said proposed purchaser to recover rent subsequently accruing, made an oral lease of the premises to him, while he testified that she consented to his occupancy, but told the lessee that she should look to him for the rent. The lessee testified that the lessor said she was satisfied to let the proposed purchaser take the place of the second assignee so long as he paid the rent, and, if not paid by him, she should look to the lessee for it. The second assignee thereupon surrendered the premises to the proposed purchaser. And it is held that these negotiations and circumstances may have amounted to a surrender of the term, and a leasing to the proposed purchaser, which questions were properly submitted to the jury.
    Error to Kent. (Ádsit, J.)
    Submitted on briefs April 17, 1895.
    Decided May 21, 1895.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Charles A. Watt, for appellant.

      Lombard Bros., for plaintiff.
   Hooker, J.

Plaintiff, being owner of a building, leased the same, by written lease, to Gerrit Vander Meulen, for one year, at a monthly rental of $83.33, payable in advance upon the first day of each and every month. Vander Meulen covenanted that he would not assign or transfer the lease, or sublet the premises, without the written assent of the plaintiff. The lease commenced June'3, 1893, Vander Meulen going into possession immediately. On June 19, 1893, he assigned the lease to Amberg & Bro. On July 13, Amberg & Bro. assigned to one Looey. Plaintiff claimed that both of these assignments were without her knowledge or consent. About the time (and, plaintiff claims, before) Looey took possession, Vander Meulen called upon the plaintiff, and asked her to consent to Looey’s occupancy, which she did. She says that-she stated that'if Looey failed to pay the rent she should still look to Vander Meulen for it. Looey paid two months’ rent. About October 1, 1893, the defendant, Kridler, arranged with Looey to buy him out, and Kridler and Vander Meulen called upon the plaintiff in relation to the matter. The plaintiff testified that Vander Meulen said he had no money to keep the place, and that Mr. Kridler was responsible, and that she thereupon made an oral lease to him at the same rental, and he went into possession. Kridler testified that on this occasion she consented to his occupancy, but told Vander Meulen that she should look to him for the rent. Vander Meulen says that she said she was satisfied to let Kridler take Looey’s place, so long as he paid the rent, and that if he did not pay it she should look to him (Vander Meulen). He also said that he had no interest in the place at the time, and went with Kridler, to call upon the plaintiff, for the accommodation of Looey, who could not speak English. Vander .Meulen’s testimony is substantially in accord with the plaintiff’s, in relation to the talk about Looey, and he said he told her he had sold out to Looey. Kridler entered October 1, and occupied a month and 1,1 days, when he sold out to one Hayer.

The court submitted the case to the jury upon the claim by the plaintiff that she made an oral lease ,to Kridler, who took possession under it upon a surrender by Vander Meulen, and a verdict was rendered in the plaintiff’s favor, from which defendant appealed.

The defendant alleges error in the refusal to give certain requests, upon the following grounds:

“1. Because there-were no contract relations between the parties.
“2. Because, at most, defendant was merely a subten-' ant, and could not be sued by the original lessor.
“3. Because, if the Court should consider the defendant was an assignee of the lease, he bad reassigned, and thereby avoided the obligation.”

The court submitted to the jury the question of fact, whether an oral lease was made between these parties. This was right, unless it can be said that the evidence conclusively showed that no such lease was made, or unless the condition of affairs precluded plaintiff from making a valid lease to defendant. There was certainly evidence tending to support the plaintiff’s theory. The contention that her conduct had been inconsistent, by reason of various notices to quit served by her attorney upon different persons, was for the jury. We think, also, that there was evidence which justified the jury in finding a surrender of the premises by Vander Meulen at the time of the arrangement with Kridler. It is not disputed that Vander Meulen, as the representative of Looey, conducted the negotiations for Kridler’s occupancy. Whatever they were, they bound him and Looey, and Looey acquiesced by yielding possession to Kridler. These negotiations and circumstances may have amounted to a surrender of the term, and a leasing to Kridler, as the plaintiff asserts. See Logan v. Anderson, 2 Doug. 101; Donkersley v. Levy, 38 Mich. 59.

It is unnecessary to discuss the other assignments of error.

The judgment will be affirmed.

The other Justices concurred.


author: McGrath, O. J.

text:
    Charles C. Amerine v. John Porteous and Thomas Hunter.

      Negligence — Defective elevators.

    Defendants were proprietors of a five-story building, and had provided, as a conveyance by which persons could reach the upper floors, a passenger elevator, which started from the street floor, while a freight elevator ran from the basement to the upper floors. Plaintiff, who was an agent for the sale of lubricating oil, being desirous of seeing the defendants’ engineer, went from the street'floor, via a stairway, to the basement, and, upon finding that the engineer was upon the fifth floor, without any invitation so to do, took passage on the freight elevator, and was injured. And, in a’ suit brought to recover damages for said injuries, it is held that the invitation extended from the defendants to take the passenger elevator was in its nature express; that the situation negatived any possible inference of an invitation to take the freight elevator; and that the trial court did not err in directing a verdict for the defendants.

    Error to Wayne. (Hosmer, J.)
    Argued April 17, 1895.
    Decided May 21, 1895.

      Negligence case. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      Griffin & Warner, for appellant.
    ■ DieMnson, Thurber & Stevenson, for defendants.

       As to liability-for injuries to passengers on elevators, see note to Mitchell v. Marker (U. S. C. C. App. 6th C.), 25 L. R. A. 33.

   McGrath, O. J.

Defendants are engaged as retail dealers in dry goods in the city of Detroit. They occupy a building several stories in height. From the street floor in the front part of the store a passenger elevator is provided to reach the upper stories. From the same street floor a stairway is also provided to reach the upper floors, and the basement also. The passenger elevator does not connect with the basement. In the rear of the store is a freight elevator, running from the basement' to the attic floor. ‘ Plaintiff was engaged in selling lubricating oils. He first called at the office a few months before the accident, when he was directed to the engineer, one Herz. He was then told to take the stairway to the basement, and did so. On the 8th day of October, 1892, he went by the stairway to the basement, to see the engineer. He says:

“Mr. Herz was not there. His brother said he was up on the fifth floor, and that he might be down presently. Right after that the elevator came down to the basement, and it was just about to go up, and I said, ‘Well, I gues(s I will go up there.’ John Herz [a brother of the engineer] saíd, ‘I think he will be down soon, and you might as well wait.’ I said, ‘Well, I may wait five minutes, and I may wait an hour, and, as I have not the time to spare, I will go up and see him.’ I stepped onto the elevator, and the boy closed the door to the entrance, and we started up. When stepping on the elevator, the boy let me pass to the west side of the elevator platform. [The witness here identified a model or plan of the elevator and elevator shaft.] The entrance to the elevator was on the north side. I went in at the lower or basement door. The elevator boy stood near the opening. ■The boy stepped back, and let me step here (on the west side of the elevator), and, when I stopped, my back was to the west side of the elevator, — the open side. Then he closed the door, and we started np, and he carried the elevator up to the third floor, and stopped and let on a woman, and I think a boy. At least, I know there was a woman stepped onto the elevator at that floor. This was the third floor. When she stepped onto the elevator, she moved over. The boy let her pass between him and this corner, this side of the entrance, in my direction; and in doing so I moved back to make room for her, and my left foot went over the edge of the platform; I don't know how many inches, but not far enough for me to notice it or for my foot to drop down. When she got on, the boy closed the door, and the elevator ascended. My left foot was on that side (west side), and just before we got to the third floor my heel was caught between the elevator platform and a joist, and my foot swung around, and closed up between the joist and the platform of the elevator.”

Again:

“I was not invited to go up on the elevator that morning. Mr. Herz’s brother says, ‘If I were you, I would not go up to see him, because he will be down here presently.’”

He testifies that he knew that this was a freight elevator, and that there was a passenger elevator in .the front part of the store. He says that he had been invited by Herz, on two or three occasions, to go up in this elevator from the basement floor to the first or store floor, but on these occasions Herz and himself would go together to get a cigar or a drink . He had not before the occasion of the injury been above the first or store floor on this elevator. Testimony was offered tending to show that others had been in the habit of riding in this elevator, but the testimony was confined to other agents having business with the engineer and to employés.

We think that the trial court was right in directing a verdict for the defendants. Defendants had made ample provision for the transportation of persons to the upper floors of the building. Plaintiff chose to ride in an elevator which to- his knowledge was provided for another purpose, knowing at the same time that a passénger elevator had been provided and was in operation. The invitation extended from the defendants to take the passenger elevator was in its nature express, and the situation negatived any possible inference of an invitation to take the freight elevator. See Pelton v. Schmidt, 97 Mich. 231; Sweeny v. Railroad Co., 10 Allen, 373.

The judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    Charles Upham v. Charles H. Clute.

      Order — Verbal acceptance — Statute of frauds.

    The verbal acceptance by a debtor of an order from his creditor for the payment by him to a creditor of the orderer of a certain sum of money, to be applied, when collected, upon the debt due from the orderer, there being no novation nor previous agreement to accept the order, is void, under How. Stat. § 1583, which provides that no person within this State shall be charged as an acceptor on a bill of exchange, unless his acceptance shall be in writing, signed by himself . or his lawful agent.
    Case made from Calhoun. (Smith, J.)
    Submitted on briefs April 17, 1895.
    Decided May 21, 1895.

      Assumpsit. Defendant assigns error.
    Reversed, and judgment entered in this Court in favor of the defendant.
    The facts are stated in the opinion.

      R. S. Loclcton, for appellant.

      Louis C. Miller, for plaintiff.
   Montgomery, J.

Plaintiff recovered a judgment of $15.15 and costs on a trial in the circuit before the court without a jury. Special findings of fact and law were made, and the only question which we consider it necessary to review is whether the findings support the judgment.

The facts found are that on the 26th of October, 1891, one Charles I. Martin made the following order on defendant:

“C. H. Glute:
“Please pay G. B. Canney, agent for Charles Upham’s place in Marshall, $21, and I will allow you the same on settlement. You are now owing me about $40, before paying this order.
“ Charles I. Martin.”

The court found that defendant promised to pay on this order $16, and verbally accepted it for that amount, and paid $2.50, and has never paid any further sum. The court also found that Martin rented the house in Marshall of Charles Upham, and that the house belonged to plaintiff’s wife. It was also found as a fact that the order was given to be applied in payment of rent which Martin owed for the Upham house; that it was not given in payment, but was to be applied, when collected, on the rent due.

Defendant contends that the action should have been brought in the name of Canney, or, if brought in the name of the person beneficially interested in the written order, that Mrs. Upham, and not Charles Upham, is the proper party plaintiff.

In the view we take of the case, we need not consider these questions, as we think the further contention of defendant, as to the binding force of the oral promise of acceptance, must prevail. It will be observed that it was not found that there was any novation. On the contrary, the findings negative this. Martin was not discharged from his liability to Upham. The amount of the order was to be applied only when collected. Nor, according to the finding of facts, was there at any time any previous agreement to accept the order. The case can-, not be distinguished from Pfaff v. Cummings, 67 Mich. 143, which is very similar in its facts. In that case it was said by Chief Justice Campbell:

“We have two statutes of frauds which govern the suit, both on the special and on the common counts. One makes invalid the unwritten promise to pay the debt of another [How. Stat. § 6185, subd. 2], and the other forbids action on any unwritten acceptance [How. Stat. § 1583].”

Plaintiff relies on Mitts v. McMorran, 64 Mich. 664. In that case there was a precedent arrangement between' Boynton, the debtor, and Mitts, by which Boynton agreed to give the order, and an agreement by McMorran to accept the order. The order was then obtained, and presented to McMorran, who verbally promised to pay the same. The payment, by the terms, of the order, was to be made out of means of Boynton which were to come into' the hands of McMorran; the case showing that Boynton had assigned to McMorran a contract upon which a sum of money was to become due to Boynton, and that this' assignment was as security for advances to be made by McMorran. The Court say:

“If the testimony showed only that McMorran promised to pay Boynton’s indebtedness to Mitts when he received certain moneys from Pittsburgh which belonged to himself, the promise would have been collateral, and void under the statute of frauds. But there was evidence which tended to show that Boynton had placed in defendant’s hands a fund or means for obtaining money belonging to Boynton, and at Boynton’s request, and by the consent of Mitts, defendant promised Mitts to pay him the debt which Boynton owed him out of the money which should be received by him, belonging to Boynton. This would be an original promise, and not within the statute of frauds.”

So it has been held in other cases that where the verbal promise to accept an order is in effect a promise to disburse funds held by the drawee for the purpose, or where the acceptance is conditional on having funds of the drawer on hand, such verbal promise is enforceable. Sturges v. Bank, 75 Ill. 595; Hughes v. Fisher, 10 Colo. 383; Comstock v. Norton, 36 Mich. 277. But no such state of facts is shown in the present record. Here we have the simple case of an order drawn by a creditor upon his debtor, and a verbal acceptance. There is no novation. There is no agreement to disburse funds belonging to the drawer, by the drawee, and we think the case clearly falls within the prohibition of the statute.

The judgment will be reversed, and judgment entered in this Court for defendant, with costs of all the courts, in the taxation of which defendant will be limited to an attorney fee of f 15 in the circuit.

The other Justices concurred.


text:
    The Union Central Life Insurance Company v. Norton Smith et al.

      Insurance companies — Authority of State agent — Action on bond— Advances.

    1. The bond of an insurance agent was conditioned for the payment over of all moneys which he should thereafter owe the company, either on account of advances to him or otherwise. In a suit upon the bond, the testimony of the’ defendants tended to show that, at a certain date, the agent notified the State agent of the company, who was charged with the duty of making said advances, that ho would no longer work under his contract of employment, and that the sureties in the bond also notified said State agent, through a local agent, that they would no longer hold themselves accountable for the dealings of their principal; that thereupon said State agent assented to a new arrangement, under which future advances were to be made upon the personal credit of the agent. And it is held that, to this extent at least, the relation of the State agent to the transaction was such as to make his acts binding upon the company.
    • % The court - instructed the jury that the company only had power to charge the sureties for advances to the extent of the payment of - hotel bills, traveling expenses, and other expenses incident to the transaction of the company’s business. And it is held that, assuming that the original contract continued, in the absence of any evidence showing bad faith on the part of the agents of the compauy in making the advances, or which tends to show that they were unreasonable in amount, the limitation as to the amount of advances ought not to have been made.
    Error to Saginaw. (Edget, J.)
    Argued April 17, 1895.
    Decided May 21, 1895.

      Assumpsit. Plaintiff brings error.
    Beversed.
    The facts are stated in the opinion.

      Bwarthout & O'Keefe, for appellant.

      Harris & Kendrick, for defendants.
   Montgomery, J.

This is an action on an agent’s bond, with the following condition:

“Whereas, the above bounden Norton Smith has been appointed by said company as their agent for the purpose of procuring applications for life insurance, and performing such other duties therewith as may be intrusted to him:
“Now, if the said Norton Smith shall pay or hand over all moneys belonging to said company which shall at any time be received by him, or for which he shall be liable, whether the same shall be or shall have been received by him personally, solely, or by, through, or together with any copartner, coagent, subagent, or other person, as well as that received thereafter, as also all moneys which hereafter he may owe said company, either on account of advances to him or otherwise, and shall faithfully discharge the duties as said agent, then this obligation shall be void, otherwise to remain in full force and effect; it being understood and agreed that this obligation shall not be annulled or revoked without the consent of the above-named company, bnt shall be and remain in force so long as said Norton Smith shall continue to be agent of said company, and until all transactions under such agency shall have been fully adjusted and settled, and all liabilities of said Norton Smith by reason thereof shall have been discharged.”

This obligation bore date May 11, 1889, and was required by a contract of agency between the company and Smith bearing date May 10, 1889, and which was to continue in force for the term of one year from date, subject to be terminated by the company for good cause, and with a proviso that it should not be binding upon the company until the bond had been furnished. The plaintiff offered testimony tending to show that advances were made to the agent from time to time, beginning with May 13, 1889, and ending on the 20th of November of the same year’, amounting in the aggregate to $447.45, and that defendant Smith was entitled to credits amounting to $135.16, leaving a balance due the company of $312.29. The defendants then offered testimony tending to show that defendant Smith continued in the employment of the company under this contract until June 10, when he quit- the employment, and gave notice to the State agent, Mr. C. C. Kelso, that he would no longer work under the contract, and could not, and that the bondsmen gave, notice to a Mr. Howell, a local agent of the company at Saginaw, who in turn communicated the fact to the State agent, Mr. Kelso, the substance of which notice was that the sureties would no longer hold themselves accountable for the dealings of defendant Smith; that thereupon there was an agreement made between Mr. Kelso and Smith, by the tenns of which Kelso agreed to advance to Smith $25 per week, which he was to receive in any event, and, if commissions at the rate of 50 per cent, on premiums exceeded the same, his compensation was to be increased to that rate, and that the advances made after June 10 were made under this agreement, and that it was expressly agreed that the sureties were to be discharged.

It is strenuously insisted by the-plaintiff’s counsel that it is not shown that the State agent had authority to employ agents on behalf of the company. There was no direct evidence of authority to employ agents on the company’s behalf, and at the charge of the company; but, in our judgment, the more important question is whether notice to the State agent of the new relation, and of the terms under which the advances would be received, if at all, was notice to the company. The circuit judge charged the jury as follows:

“If you should find that the State agent, under the testimony in this case, was vested with the general powers vested in State agents in the supervision of the business and agents in the State, and received remittances from the agent, or made advances to the agent, or that no one else had correspondence with the agent but him, then a notice to him is a notice to the company. I think the 'company is charged to receive notice through the State agent. My judgment is there was no need, in order to cease doing business under this contract, to bring the notice home to the central office.”

• We think this instruction correctly embodied the law. The question in the case was whether the advances which were made after June 10 were made in reliance upon the bond in suit. It seems clear enough- that the agent through whom these advances were made had authority to receive notice that they were not being received under the original contract of hiring. Indeed, it becomes a question as to what the advances were for; and the State agent, as representing the company in making the advances, and presumptively possessing the authority also of withholding them, was bound to act in that matter upon the notice which he received directly from the agent. A different question might be presented if the agent were charged with withholding premiums collected. But such is not this case. The person charged with making advances not only had notice, as the defendant’s testimony tended to show, that the’ advances would not be received upon the credit of the bond in suit, but he further is shown to have assented to a new arrangement, by which they were to be made upon the personal credit of the agent. To this extent, ¿t least, his relation to the transaction was such as to make his acts binding upon the company.

This is the principal question involved in the case, and, if we could be convinced that the jury determined the case upon this point, the other questions would not call for discussion. But the whole case was submitted to the jury, and among other instructions was the following, relating to the advances:

“The company only had the power to charge the sureties for advances to the extent of the payment of hotel bills, traveling expenses, and other expenses incident to the transaction of the company’s business; and, if you find that the advances were made in excess of that extent, they cease to bind these sureties. You will ascertain, when you come to examine the account here, as shown by these vouchers, that advances were made from the 18th of June down to the 20th of November, and these advances amount to $447.45.”

We think this instruction was erroneous. The bond itself contemplated that advances would be made to the agent. There is no evidence in the case, if it be assumed that the original contract continued, which shows any bad faith on the part of the agents of the company in making these advances, or which tends to show that they were unreasonable in amount. We think, under these circumstances, the limitation as to the amount of advances ought not to have been made.

There are numerous other questions raised in the record, but, we think, none which require special discussion, in view of the conclusion we have reached upon the two*points referred to.

Judgment will be reversed, and a new trial ordered.

The other Justices concurred.


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    James C. Thomson v. The Massachusetts Mutual Life Insurance Company.

      Insurance — Copartnership agreement — Deferred premiums.

    A general agent for an insurance company, under a contract providing for the payment to him of a commission on all ■ premium notes or loans allowed by the company in payment of any part of the first year’s premium on any policy after the policy had been in force for five full years, on forming a partnership with another agent, assigned to him an undivided half of all commissions'due or to become due to the assignor after a certain date, antedating by one day the' time when the partnership agreement was to become operative, under his aforesaid contract. The insurance company then made a contract, with the partners containing similar provisions as to commissions as the contract with the original agent, and a further provision that “ on first year’s premiums, or deferred portions thereof,” collected on and after the date when the partnership agreement became operative, on policies issued prior to that date upon applications secured by the original agent, the company would pay commissions, which should belong exclusively to said original agent. Eight months afterwards the original agent transferred to his copartner his interest in all commissions to which he might be entitled, excepting only such commissions or share of commissions as might thereafter become due on premium loans accepted by said company in part payment of first year’s premiums. After this date, commissions become due from the company on two policies issued while the first agreement with the original agent was in force, upon which premium notes had been received and accepted by the company, representing a portion of' the first year’s premiums. The original agent sued the company for the entire of said commission, one-half of which was claimed by his copartner: ' And it is held that the plaintiff is entitled to recover the whole of said commissions.
    Error to Wayne. (Carpenter, J.)
    Argued April 18, 1895.
    Decided May 21, 1895.

      Assumpsit. Plaintiff brings error.
    Reversed, and judgment entered in this Court for plaintiff for $283, and interest from December 11, 1894.
    Tbe facts are stated in tbe opinion.

      Julicm G. DicMnson, for appellant.

      James S. McDonald, for defendant.
   Montgomery, J.

Prior to the date of tbe contract between tbe plaintiff and Charles W. Pickell hereinafter referred to, tbe plaintiff bad been acting as general agent for tbe defendant company, with headquarters at Detroit, under a contract bearing date November 15, 1888, under which be was entitled to a premium on new business written of 55 per cent, of tbe first year’s premium, and an additional commission on renewal premiums during tbe first 11 years of tbe life of tbe policy. Tbe contract contained tbe following provision:

“Commissions on first year’s premiums, allowed by this agreement, will be computed on cash payments only; and, when a premium note or loan is allowed by tbe company in payment of any part of tbe first year’s premium on any policy, no commissions will be allowed on such premium note or loan until tbe policy has been in force five full years, at tbe end of which period said Thomson will be allowed first year’s commissions on such original premium note or loan.”

On the 11th of February, 1891, an agreement for a copartnership, to take effect on the 16th of March following, was entered into between plaintiff and Pickell. This contract was made with the approval of the company. Three instruments in writing were prepared, two of which were signed by Pickell and plaintiff, as parties, and the third was executed by Pickell and plaintiff, on the one part, and the insurance company on the other. the first of these instruments provided for a copartnership, as before stated, and, in consideration of a payment in cash and notes made by Pickell to plaintiff, be (plaintiff) assigned to and transferred to Pickell—

“One undivided one-half of any and all commissions due or to become due me [plaintiff] after March 15,1891, under the provisions of my [plaintiff’s] contract with said company, bearing date November 15, 1888.”

The second agreement furnished a basis of settlement in case of a later dissolution of the copartnership, and gave certain options to Pickell; but it is not very material here, for the subsequent purchase by Pickell was admittedly broader than the option, so that the option will furnish little aid in construing the other instruments between the parties. The agreement between plaintiff, Pickell, and the company, made on the same day, constituted plaintiff and Pickell agents, and provided a basis of commissions, and contained the following provision:

“Commissions on first year’s premiums, allowed by this agreement, will be computed on cash payments only; and, when a premium note or loan is allowed by the company in payment of any part of the "first year’s premium on any policy, no commission will be allowed on such premium note or loan until it is paid off in cash, or until the premium on the policy has been paid in full for five years, at the end of which period said general agents will be allowed first year’s commission on such premium note or loan.”

Also the following:

“On first year’s premiums, or deferred portion thereof, collected on and after March 16, 1891, on policies issued prior to said March 16 upon applications secured by said Thomson, the said company will pay commissions reckoned according to the rates for the first year’s commissions contained in section 9 hereof, with the stipulated additions thereto contained in section 11 hereof, but it is understood and agreed that all commissions referred to in this section shall belong exclusively to said Thomson.”

The business was conducted under this agreement until October 15, 1891, when plaintiff retired from the copartnership, and made a transfer to Pickell as follows:

“I do hereby sell and convey unto the said Charles W. Pickell all my right, title, and interest in and to any and all commissions, either first year’s or renewal commissions, to which I may now he entitled, or which may hereafter become due, by reason of any contract between me and the Massachusetts Mutual Life Insurance Company, or between me and the said Pickell, as copartners, and said company, excepting only such commissions or share of commissions, if any, as may hereafter become due me on premium loans accepted by said company in part payment of first year’s premiums.”

After this date, commissions became due from the company on account of two policies issued while the agreement of November 15, 1888, was in force, upon which premium notes had been received and accepted by the company, representing a portion of the first year’s premium. Plaintiff sues to recover these commissions.

The sole question is whether the plaintiff is entitled to the whole of this commission, or whether Pickell is entitled to one-half. It is clear that in the sale to Pickell, of October 15,1891, plaintiff reserved to himself all commissions or shares of commissions thereafter becoming due to him on account of premium loans. But the circuit judge held- that under the agreement of February 11, 1891, one-half of these commissions were assigned to Pickell, and hence that the reservation of October 15, 1891, was a reservation of one-half only, and gave judgment for one-half of the commission in question. From this holding, plaintiff appeals.

The case must turn upon the construction of the February agreement. The three instruments — the two between Pickell and plaintiff, and that between plaintiff, Pickell, and defendant — are to be construed together, and both parties apparently concede this. But the parties are at variance as to their construction of section 17 of the last-named agreement, as to what was meant by “first year’s premiums, or deferred portions thereof.” The defendant offered testimony to explain what was meant by deferred premiums, and the circuit judge found as a fact that—

“In insurance business the terms ‘deferred payment’ and ‘preminm loans’ have separate and distinct meanings, and these terms, as they are used by insurance men, refer to different matters. The former is an unpaid part of the premium, and the latter what has been used to pay a premium.”

There was testimony tending to show that, during the time plaintiff and Pickell were in business together, one premium loan was paid to the company, entitling the agent to commission, and the plaintiff received the whole of this without objection from Pickell, but this was explained by Pickell showing that to be a special case. There was also testimony that a list of premiums and renewal commissions were shown to Pickell in February, and that the premium loan did not appear thereon. But the circuit judge states:

“I do not find that it was the intent of the parties to Exhibit A to limit the claim thereby assigned to sai.d list above mentioned.”

These facts, therefore, are not material in construing the instrument, unless it be said that, because premium loans and deferred payments have distinct meanings, it follows that the language of section 17 of the contract is not broad enough to include as a reservation to the plaintiff unpaid first year’s commissions on premium loans. We do not think the finding above quoted is controlling. The term “deferred payment” is not used in the contract, and there is no finding as to whether first year’s premiums include those represented in part by premium loans or not, even if it were possible to control the language of this instrument by evidence of the custom or use of these terms by insurance men. We do not think that the language of the section is at all ambiguous or uncertain, or that any aid is furnished by the testimony or the finding relating to the technical meaning of insurance terms. Section 17 reserved to the plaintiff commissions oh all “first year’s premiums, or deferred portions thereof.” The contract itself, to which Pickell and the company were both parties, designates the premium represented by an insurance note or loan as a “first year’s premium.” It is stated:

“When a premium note or loan is allowed by the company in payment of any part of the first year's premium on any policy, no commission will be allowed on such premium note or loan, until it is paid off in cash, or until the premium on the policy has been paid in full for five years, at the end of which period said general agents will be allowed first year's commission on such premium note or loan.”

Can it be said that the unpaid portion of the premium, which is to furnish a basis for commission when it is paid, is not a deferred or postponed portion of the premium? We think not. We are all agreed that the true construction of this contract entitles the plaintiff to commissions on premiums represented by premium notes, and thereafter paid.

The judgment below will be reversed, and a judgment entered in this Court for plaintiff for $283 and interest, from December 11, 1894, the date of judgment below. Plaintiff will recover costs of both courts.

McGrath, C. J., Long and Hooker, JJ., concurred. Grant, J., did not sit.


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    Jennie Corry v. Nelson U. Lackey.

      Divorce — Extreme cruelty — Bes judicata — Necessaries—Liability of husband.

    1. A decree of divorce granted to a wife on the ground of. extreme cruelty is not res judicata of that question of fact so as to prevent the husband from contesting its truth in a suit by a third person against him to recover for neces-saries furnished the wife pending the.divorce proceedings.;

      2. In an action by an aunt against the former husband of her niece, from whom the niece had secured a divorce on the ground of extreme cruelty, to recover for necessaries furnished the niece pending the divorce proceedings, two letters were produced, written, as the evidence tended to show, by the plaintiff, one to her niece, concluding as follows: “This is from your aunt Jennie, who clothed and fed you and your daughter, and did what your father and mother would not do, so you could put away your husband, and get an old man, because he had more money;” and the other to the defendant, urging him to sue the second husband for damages, the niece having remarried, and promising to furnish the necessary witnesses. And it is held that said letters might well be interpreted as supporting the defendant’s' contention, that the niece left the defendant without justification, intending to institute the divorce proceedings, that she might marry a wealthier man, whom she had already determined upon, all with the knowledge and through the connivance of the plaintiff, and justified a charge that, if the jury" so found the facts to be, plaintiff could not recover.
    Error to Shiawassee. (Wisner, J.)
    Argued April 18, 1895.
    Decided May 21, 1895.

      Assumpsit. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      D. P. Sagendorph, for appellant.

      E. E. Pulver and Lyon <£- Eads all, for defendant.
   Montgomery, J.

Plaintiff brought suit to recover for board, washing, clothing, music lessons, and school bills furnished to and paid for the wife and 10 year old ¿(aughter of defendant. The plaintiff was an aunt of the defendant’s wife. The jury returned a verdict for the defendant, and plaintiff brings error.

There was testimony tending to show that defendant’s wife left his home, taking her daughter with her, because of his extreme cruelty, and that she was justified in so doing, and "that the plaintiff furnished the items of necessaries set out in her bill of particulars during her absence from defendant. On the part of the defense this claim was denied, and there was testimony tending to show that defendant’s wife left him without justification, and ostensibly with the purpose of visiting relatives in Missouri and Kansas, and instead went to Jackson, and that the purpose was to institute proceedings for a divorce, in order that she might marry a wealthier man, who had already been determined upon, and that this was not only with the' knowledge of plaintiff, but through her connivance. There was also testimony tending to show that plaintiff had been fully paid by defendant’s former wife, at least to the satisfaction of plaintiff, it having been agreed upon that no charge would be made beyond what Mrs. Lackey was able to furnish in labor and funds, from time to time, and did in fact furnish.

The court charged the jury as follows:

“While a. husband and father is charged with the duty I have mentioned, yet, if he conducts himself in a manner proper to the relations, he has a right to select the place where he will discharge such duties. But if he treats his wife in the home so as to subvert the. happy relations which should exist between husband and wife, and is guilty of such conduct, either by word or act or both, as to make his wife’s condition an unhappy one, without fault upon her part, and to such an extent as justifies her leaving the home, then in such case she takes With her the implied authority to pledge the'credit of the husband for such purposes, and for such articles as are necessary to her support and maintenance in the manner of life before that time maintained and supported by. the husband to an extent commensurate with his means. Provided that the jury find from all the evidence that Mrs. Lackey was justified in leaving her husband and leaving his home by reason of his conduct and treatment of her, and that plaintiff furnished her necessaries, it would be the duty of the husband to pay.for the same; and, if such necessaries have not been paid for, then plaintiff is entitled to verdict for the value of such necessaries, with interest at six per cent, from the date upon which they were furnished. But if you find that Mrs. Lackey did not leave her husband because of his acts or doings, or that she was not justified in so doing, then she had no right to pledge her husband’s credit for necessaries for herself to be furnished away from defendant’s home.”

This instruction correctly embodied the law of the case, and is not open to criticism, unless we admit the contention of plaintiff’s counsel that a decree of divorce subsequently granted to the wife of defendant is res judicata. It appears that defendant’s wife procured a divorce from him on the ground of extreme cruelty, and it is contended that he cannot now be heard to say that he was not guilty of this cruelty. We do not think this contention can be allowed. As between the parties to that litigation the finding of fact is final and conclusive, but between plaintiff and defendant it is not. Gill v. Read 5 R. I. 343. See, also, Jacobson v. Miller, 41 Mich. 90.

The circuit judge also charged the jury as follows:

• "If you find from all the evidence that Mrs. Lackey left or remained away from her husband, not because of his acts or conduct, but for the purpose of having the marriage relation between them dissolved, that she might marry another man, and if you further find that Mrs. Corry took any part in inducing Mrs. Lackey to leave or remain away from her husband under such circumstances and for such purposes, then, under the law, she cannot recover for necessaries furnished Mrs. Lackey or her daughter either. The law will not favor improper interference between husband and wife, and he or she who may be guilty thereof cannot, under the law, be permitted to profit thereby.”

It is claimed that this instruction raised a false issue; that there was no evidence to support it. But we think there was testimony justifying the submission of this question to the jury. Letters which there was testimony tending to show were in the handwriting of plaintiff were produced. One was addressed to defendant’s former wife, in which the following occurred:

“I thought I would write again, and let you know that we are all coming out there next month to see you; so don’t put yourself to any trouble, as the deserted hus.band can stop with a friend of mine. Have you got into society yet? How many receptions have you attended, and how is the sunshine we heard so much about last year? . We will give you a real standup party when we get there. All the swell of Cleico invited, and no fooling. This is from your aunt Jennie,, who clothed and fed you and your daughter, and did what your father and mother would not do, so you could put away yarn Imsbmd, and get an old man, because Tie had more money. That will looh well in print to Cleico people, won’t itV’

There was also a letter produced, which was addressed to the defendant himself, in which the following occurred:

“You are a greenie not to prosecute the old brute of a doctor. Why, man, don’t you take him for damages? Sue him for $10,000, and get your children. He would settle, and you would get a good sum. He is worth about $6,000, and has about the same of his mother’s invested in New York and Denver, Colorado. You can have all the witnesses from here you want. Come to Jackson, and take advice, and see what you can do. I know where they are, ánd will help you get witnesses. I would like to talk with you. I know all the facts you need to make a clear case, if you can come and see me.”

These letters might well have been interpreted as supporting the defendant’s contention, and warranted the charge last quoted.

Errors are assigned upon the admission of testimony, but a careful examination of the record convinces us that no error was committed to the prejudice of the plaintiff. The testimony was fairly limited to the questions covered by the charge, and, as pointed out on the argument, we think there was sufficient testimony to admit the letters from which quotations have been made.

The judgment will be affirmed.

McGrath, C. J., Long and Hooker, JJ., concurred. Grant,-J., did not sit.

       See Bond v. Markstrum, 102 Mich. 11.