author: Grant, J. Per Curiam.

text:
    SCHEEL v. CITY OF DETROIT.
    1. Negligence — Cross-Walk—Personal Injury — Appeal.
    In an action against a city for damages for personal injuries caused by a fall upon a cross-walk, a determination by the jury that there was no negligence on the part of the city renders it unnecessary to consider assignments of error relating - to the testimony of physicians who examined the plaintiff.
    2. Same — Contributory Negligence.
    A determination by the jury that the defendant was not negligent renders the question of contributory negligence immaterial.
    3. Same — Evidence—Defective Walk — Lapse of Time.
    It was not error to exclude testimony showing the condition of the walk more than two years prior to the injury.
    Error to Wayne; Brooke, J.
    Submitted January 30, 1902.
    (Docket No. 40.)
    Decided March 18, 1902.
    Rehearing denied May 8, 1902.
    Case by Casper H. Scheel against the city of Detroit for personal injuries. From a judgment for defendant; plaintiff brings error.
    Affirmed.

      Plaintiff claims that he fell into a hole on a cross-walk of the defendant city on November 2, 1899, and received a very serious injury. He brought suit to recover damages, alleging negligence on the part of the defendant. The defense was that there was no defect in the cross-walk, that plaintiff was negligent, and that plaintiff’s condition was the result of injuries inflicted upon him in 1891. Three special questions were submitted to the jury:
    1. Did plaintiff have a disease of . the spine or spinal cord prior to November 2, 1899 ?
    2. Was the cross-walk described in the declaration in a condition reasonably safe and fit for public travel November 2, 1899 ?
    3. Did the plaintiff, under all the circumstances, exercise reasonable care in crossing the point in the cross-walk where the accident is alleged to have happened ?
    The first two questions were answered, “Yes;” the third, “ No.” The jury rendered a verdict for the defendant.

      Frederic T. Harward {Arthur Webster, of counsel), for appellant.

      P. J. M. Hally and A. B. Hall { T. F. Tarsney, of counsel), for appellee.
   Grant, J.

{.after stating the facts). Plaintiff’s counsel concede that the instructions upon the questions of the negligence of the defendant and the contributory negligence of the plaintiff were correct, for no question is raised upon them. All the errors assigned relate to the admission of the testimony of the two oculists who examined the eyes of the plaintiff about the time of the accident, and who were permitted to testify as to their condition; to the instructions upon the measure of damages, and the cause of plaintiff’s injuries.

If the cross-walk was in a reasonably safe condition, as required by the statute, or if plaintiff was guilty of contributory negligence, all the other questions become immaterial. We must assume that this jury was one of average intelligence. To assume that they would be prejudiced by the testimony of the physicians, or by the charge of the court upon the other branches of the case, would impeach their intelligence. Naturally, the first question for the jury to determine would be, Was the defendant negligent ? If they found this question in the negative, it would be unnecessary for them to consider any other branch of the case. A determination that there was no negligence on the part of the defendant is conclusive of all the other questions in the case, and renders it unnecessary to consider the alleged errors. Kramer v. Gustin, 53 Mich. 291 (19 N. W. 1); Germaine v. City of Muskegon, 105 Mich. 213 (63 N. W. 78); Anderson v. Boom Co., 57 Mich. 216 (23 N. W. 776); Johnston v. Davis, 60 Mich. 56 (26 N. W. 830).

Complaint is made that the judge refused to permit plaintiff to show the condition of the cross-walk prior to 1897. Its condition for two years prior to the accident was certainly sufficient time to establish the implied notice which the law holds sufficient, and this is the sole object of such testimony.

Judgment affirmed.

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

ON MOTION EOR REHEARING.

Per Curiam.

An application for rehearing has been filed, in which it is stated that we were in error in stating that no question was raised upon the instruction of the court as to the question of contributory negligence. We find, upon referring to the three briefs filed in the case on behalf of the plaintiff, that we were in error in this statement. The error probably arose from the fact that the question was not raised in the main brief, but was raised in a second brief. It is undoubtedly due to counsel that this correction be made. This, however, cannot change the result, for the determination by the jury that the defendant was not guilty of negligence renders the question of contributory negligence immaterial. Upon the other points raised in the application, we see no occasion to change our former opinion.

The application is denied.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    HEATH v. KOON.
    1. Chattel Mortgages — False Representations — Husband and Wipe.
    The validity of a chattel mortgage given by a man to his wife was at issue in an action by the wife against the sheriff, who had seized the goods on execution for the husband’s debt. Held, that statements as to his assets and liabilities, made by the husband to the execution creditor at the time the credit was given him, were admissible as tending to prove fraud on the part of the debtor.
    2. Same — Wipe’s Knowledge.
    The mortgage would not be invalidated unless it were also shown that the wife had knowledge of the representations.
    3. Fraud — Evidence.
    In cases of fraud great latitude is permitted in admitting evidence, and inferences are generally for the jury.
    Error to Bénzie; Aldricb, J.
    Submitted January 30, 1902.
    (Docket No. 113.)
    Decided March 18, 1902.
    Trover by Anna M. Heath against William H. Koon. From a judgment for plaintiff, defendant brings error.
    Reversed.
    The statement of facts made by the appellant is conceded to be correct. We take therefrom that which is essential to an understanding of the point to be decided.
    Plaintiff is the wife of Edgar Heath. They were married in October, 1893. Until 1896 he supported’his family by working as clerk, peddling, and other work. In the spring of 1896 he kept for sale a small stock of groceries in the rural district of Homestead township, Benzie county. In 1897 he moved to Frankfort, taking with him the remnant of his stock of merchandise, and opened a small store, plaintiff attending to the business in the absence of her husband. He obtained goods upon credit down to the summer of 1898, purchasing a bill of goods from a Wisconsin corporation. In July and August, 1898, he sold large quantities of the merchandise so purchased at auction, with the consent of his wife. On October 1st following he executed to his wife a chattel mortgage on what was left of the stock, purporting to secure to her the payment of $1,175. On October 12th of the same month he left his home in the evening, took the train that night or in the early morning for the State of Ohio, and took with him, with the consent of his wife, considerable quantities of merchandise, which had been packed in boxes. He left instruction for the remaining portion of the goods to be shipped to him in Ohio. His wife immediately took possession, and on the 17th of October foreclosed the mortgage, and bid the goods in for herself. October 20th of the same month the Wisconsin corporation sued out a writ of attachment, levied upon these goods, and sold them at public vendue for the sum of $398, which was not sufficient to cover its debt. In November following the wife took her household goods and went to her husband in Ohio. On November 21st she commenced this action of trover against defendant, who was the sheriff of Benzie county, and levied upon the goods and sold them. Plaintiff recovered verdict and judgment.

      N. A. Parker, for appellant.

      I). G. F. Warner, for appellee.
   Grant, J.

(after stating the facts). Several errors are assigned. We need to discuss only one. The defense was that the transaction between plaintiff and her husband was fraudulent, and there was good evidence to sustain it. Plaintiff claimed that she had received money from her father’s estate at various times, which she loaned to her husband. She was unable to tell how much. She kept no records, and could give no dates or amounts. The administrator, who was her brother-in-law, testified to the items paid. Defendant offered to show statements made by plaintiff’s husband to R. G. Dun & Co., and to the salesman of the Wisconsin corporation, of his assets and liabilities. This was excluded by the court for the reason that no proof was offered to show that she knew about them.

It was essential to show fraud on the part of the plaintiff’s husband, the purchaser of the goods. Representations made by him at the time the goods were purchased, if shown to be false, were evidence of fraud upon his part. The evidence was competent. The relations of the plaintiff and her husband, the clandestine removal of the goods with her consent, her knowledge of his indebtedness and the manner of conducting his business, of his financial condition, and other circumstances, were competent evidence for the consideration of a jury in determining the good faith of the transaction. Testimony tending to show any fraud upon his part or upon hers was competent. Naturally,.in such cases, the first purpose of the defendant is to show the fraud on the part of the debtor. If, at the conclusion of the evidence, there is nothing to indicate any fraud, the court will direct a verdict; and if there is nothing to indicate that plaintiff had knowledge of any representations made by the debtor to his creditor, he will so instruct the jury. But in these cases of fraud wide latitude should be permitted in admitting evidence, and inferences are generally for the jury to draw.

Judgment reversed, and new trial ordered.

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


author: Gbant, J.

text:
    CALKINS v. GREEN.
    1. Benefit Societies — Settlements—Illegality of Contracts.
    Where the certificate of a member of a mutual benefit association has been matured, fully paid, and settlement had with the company according to the terms of the certificate, of which all the members are fully aware, such settlement will not be set aside in a suit by a receiver of the company, asking relief on the ground that the scheme of the association was impracticable and illegal, and that all moneys paid in under the contracts should constitute a trust fund, to be distributed pro rata among the members.

    2. Settlements — Receivers.
    Settlements between debtors and creditors, made in good faith and in accordance with the terms of their contracts, cannot be set aside by a receiver.
    Appeal from Wayne; Hosmer, J.
    Submitted January .30, 1902.
    (Docket No. 121.)
    Decided March 18, 1902.
    Bill by Charles W. Calkins, receiver of the Supreme Assembly of the National Dotare, against William H. Green, Jr., and Annie Green, to reinstate and foreclose a mortgage. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    This is another suit involving the rights and obligations of the members of the Supreme Assembly of the National Dotare. Its organization, illegal methods of doing business, and the proceedings for the appointment of a receiver are sufficiently stated in Calkins v. Bump, 120 Mich. 335 (79 N. W. 491), and need not be restated here. The further facts applicable to this case are well stated by counsel for the complainant, are not disputed by counsel for the defendants, and are as follows:
    The National Dotare issued to its members certificates varying in amounts from $200 to $1,200, payable six years after the date of issue. There were 2,672 certificates issued. The members paid monthly assessments of 50 cents for each $100 of the face value of their certificates. So that, according to the terms of the certificates, the corporation agreed to pay $1,200 to each member who would contribute to its funds $432 in 72 monthly assessments, of $6 each. Prior to June, 1894,10 per cent., and after that date 20 per cent., of the funds collected by assessments, were used to defray the running expenses of the organization. The receipts not used to defray the running expenses were placed in a fund designated as the “ Guaranty Reserve Fund,” which, according to the constitution of the order, was set aside to be used in paying certificates at maturity, and was to be invested in bonds and mortgages. The losses resulting to the fund as a result of unsafe investments were greater than the interest earned. In 1894 the organization began paying surrender values on certificates; i. e., purchasing them for less than their face value, but for more than had been paid in on assessments on them. March 1, 1896, the first issue of certificates matured.
    The result of these operations was that the organization became unable to pay to its remaining certificate holders more than one-third of the amount they had contributed to the fund. On March 18, 1896, there had been paid out in surrender values and on matured certificates more than $108,000 to 225 certificate holders, who had contributed to the fund less than $43,000; and on that date there remained in the fund less than $85,000, to be distributed among 2,064 certificate holders, who had contributed more than $150,000 thereto. Two hundred and twenty-five certificate holders had received $2.50 for every dollar contributed, and there was enough left to pay the remaining 2,064 members only 56 cents for each dollar contributed. By April 6, 1896, there remained less than $51,000 to be distributed among members who had contributed $150,000 to the fund, and had received nothing in return.

      April 1, 1890, there was issued to William H. Green, Jr., a benefit certificate of the face value of $1,200. March 30, 1891, William H. Green, Jr., and Annie Green, his wife, borrowed from the reserve fund $1,200, and gave a mortgage on real estate to secure payment of the loan. Monthly assessments of $6 each were paid on the certificate, and interest at 7 per cent, on the loan. The mortgage loan became due March 30, 1896, and the certificate matured April 1, 1896. The warrant or check received in payment of the certificate was returned to pay the principal of the mortgage loan on April 6, 1896. There was paid in in assessments on the certificate $408, of which $359.40 was placed in the reserve fund. The defendant Green received from the reserve fund $3.33 for every dollar he had contributed thereto, when, on a pro rata distribution of the fund among the contributors thereto, he would have received only 34 cents for each dollar contributed. By canceling his mortgage with his certificate, he received nearly 10 times as much as he would have received if the fund had been distributed among all the contributors, who had received nothing from the fund, pro rata their respective- contributions thereto.
    The complainant receiver filed this bill, setting up the above facts, the invalidity of the certificate, the injury to others beneficially interested in said fund, and prayed that such mortgage might be reinstated and foreclosed. Decree was entered for the defendants.

      Frederick W. Stevens, for complainant.

      Corliss, Andrus & Leete (John J. Speed, of counsel)^ for defendants.

      See, also, Calkins v. Beekman, 127 Mich. 249 (86 N. W. 836).

   Gbant, J.

(after stating the facts). The learned counsel for complainant states the theory upon which complainant seeks a decree as follows:

“A large number of persons put money into a common fund. The purposes for which it was paid are illegal. The fund became a trust fund, in which every member who contributed thereto became beneficially interested pro rata the amount of his contribution. Some put in more than others. Equity requires that there should be an adjustment among all the contributors on a fair accounting. A receiver has been appointed to'make the proper and equitable distribution. In order to'clo this, there should be returned to him all amounts which have been taken from the fund in violation of the trust. The holders of matured certificates are not entitled to be paid in preference to other certificate holders.”

In support of this theory he cites Burton v. Schildbach, 45 Mich. 504 (8 N. W. 497); Stamm v. Benefit Association, 65 Mich. 317 (32 N. W. 710); Calkins v. Bump, 120 Mich. 335 (79 N. W. 491); In re Youths Temple of Honor, 73 Minn. 319 (76 N. W. 59).

All these cases involved the rights and liabilities of the membership of the corporations at the time of dissolution and the appointment of receivers. They relate to the distribution of the assets of the corporations as they existed at that time. Neither one is authority for setting aside settlements with and payments to members which have been made in accordance with the terms of their contracts. It may be very properly said that the scheme to mature these certificates in six years was impracticable, and that it could not be maintained for any length of time; but there was nothing morally wrong in the proposition. All parties acted in good faith. Mr. Green’s certificate was matured and the company paid it while it was a going concern, and more than a year before proceedings were taken to wind up the affairs of the company. There was no fraud in the settlement. Mr. Green had performed his contract. The corporation also performed it, by paying the money. The fact that it was paid by canceling a mortgage is of no consequence. The same principle which would now reinstate the mortgage would also compel Mr. Green to repay the money. Under complainant’s theory (and we presume this is a test case to establish the rule), every person who has once been a member, and received his money upon his matured certificate, can be compelled to repay it into the common fund. The statute of limitations, in that event, would be the only bar to recovery from members who have been paid.

Settlements between debtors and creditors, made in good faith and in accordance with the terms of their contracts, cannot be set aside by a receiver. Hyde v. Lynde, 4 N. Y. 387. The learned counsel concedes this rule, but maintains that it is inapplicable to cases of this character, where the contracts are ultra vires, and the funds paid in, therefore, constitute a trust fund to be distributed among the members interested. I do not find that this point has been raised in any of the cases arising out of these mutual benefit associations. Certainly the corporation itself, when a going concern, could not have sued the defendant to recover payments made by the express authority of its articles of association, and contracts based thereon. The members of the corporation deliberately entered into these contracts, hoping to make large returns. Every one undoubtedly expected to make the same profit that Mr. Green did. In six years he invested in his certificate $408, and received back therefor $1,200. Every member knew that this money would be paid to each certificate holder as his certificate matured. Each member made his contract with his eyes wide open. Each, upon reflection, would undoubtedly have concluded that the scheme was wholly impracticable and must fail. Its members are not, therefore, in position to appeal very strenuously to the conscience of a court of equity for relief. Mr. Green was paid just as they agreed he should be paid. If the company itself could not sue Mr. Green to recover the money back, we think that, for the same reason, the receiver cannot do it. If no right of action existed in the corporation against Mr. Green, certainly it was not a part of the assets of which, under the decree of the court, he was appointed receiver.

The decree is affirmed.

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


text:
    HUTCHINSON v. BOARD OF SUPERVISORS OF IONIA CO. CURRY v. SAME.
    1. Criminal Law — Justices’ Courts — Security for Costs.
    A bond signed in blank by a surety, and left with a justice of the peace, to fill in and use as he sees fit in disorderly cases where the prosecutor has not given an. order for the arrest, is not a compliance with section 1061, 1 Comp. Laws, providing that no warrant shall issue “unless security for costs shall have been filed with said justice.”
    2. Disorderly Persons — Previous Conviction — Duty of Justice.
    Section 5927, 2 Comp. Laws, makes it the duty of justices of the peace, when disorderly persons are brought before them, to examine their dockets, and ascertain from the officer making complaint, if they can, whether the person has been previously convicted of a similar offense.
    3. Justices of the Peace — Forfeiture of Fees — Report to Prosecutor.
    Section 1062,1 Comp. Laws, providing that justices of the peace shall, in their report to the prosecuting attorney, make “an itemized statement of the officers’ and court fees, and how the same were disbursed, if paid to such justice,” requires an itemized statement whether paid to the justice or not, and failure to make such statement results in a forfeiture of his fees.

      Certiorari to Ionia; Davis, J.
    Submitted February-18, 1902.
    (Calendar Nos. 19100, 19101.)
    Decided March 18, 1902.

      Mandamus by Frederick S. Hutchinson and James Curry to compel the board of supervisors of Ionia county to allow certain fees to relators as justices of the peace. From orders granting the writs, respondent brings certiorari.

    Reversed.
    The relators are justices of the peace of the city of Ionia, Ionia county. They presented bills for their services as such justices in the alleged trial of offenders brought before them, as they assert, under sections 5923, 11736, Comp. Laws. The respondent refused to allow the bills, claiming that the relators had not complied with the statutes, and were therefore not entitled to their fees. It is also charged that there was collusion between the relators and the officers to bring these prisoners (mostly tramps) before the relators. Issues were framed in the circuit court, testimony taken thereon, and the court found that the relators were entitled to their fees.
    The police officers who arrested these vagrants were both constables and police officers of the city. The prosecuting attorney refused to give a written order allowing these arrests, and the justices therefore required security for costs, under section 1061, 1 Comp. Laws. The constables made complaints. The bonds were signed in blank by one surety, and left with the justices. When a prisoner was brought in, one of these blank bonds, with the surety’s name attached, was filled out by the justice with the name of the prisoner, the offense charged, and the amount of the bond. The bond was also signed by the constable making the arrest and complaint, but when does not appear. The prisoners always pleaded guilty, and were committed to jail. In the case of relator Hutchinson, the commitments were from 1 to 15 days. One was committed 15 days; 16 were committed 10 days; 2, 8 days; 1, 7 days; 37, 6 days; and 21, 5 days.

      Morse & Locke, for relator Hutchinson.

      Miller & McKenna and James Curry, Jr., for relator Curry.

      William K. Clute, Prosecuting Attorney, for respondent.
   Grant, J.

(after stating the facts). It is contended that the method of giving security for costs adopted by the relators was not in compliance with the law. We concur in this contention. Counsel cite several authorities to the effect that, where a party signs and delivers an instrument in blank, authorizing a party to fill it in after signing, he is estopped to deny its validity, and the instrument is therefore binding. This rule of law is not disputed. That, however, is not the question to be determined. The question is, Are bonds in criminal cases, signed in blank by a surety, and left with the officer of the law to fill in and use as he sees fit, after the alleged offender is arrested, a compliance with the statute providing that no warrant shall issue ‘ ‘ unless security for costs shall have been filed with said justice?” If this be the law, then any officer, judicial or otherwise, required to take bonds in specific cases, can induce some one to sign a lot of blank bonds as surety, keep them in his office, and, whenever occasion requires, take one out, fill in the date and amount, and file it where the law requires. This is a novel proposition, and one we have never heard advanced before, where officers of the law are required to take bonds. If this be the law, then justices of the peace can keep a lot of blank bonds, signed by sureties, to be used in cases of appeal from them to the circuit courts, and use them years after they are signed. So, also, can the circuit judges of the State, for convenience, keep a lot of such bonds on hand, to be used in taking appeals from their decisions and judgments to the Supreme Court. The statement of the proposition is sufficient to condemn it. Such a procedure is contrary to public policy. The statute clearly contemplates that the bondsmen shall come before the justice in each case; that a bond, with such sureties as he may require and approve, shall then and there be executed and filed with him, before the warrant issues. The custom of relators is a clear evasion of the statute.

In their reports to the prosecuting attorney, the relators made a statement of their own fees, but did not state the fees of the officers making the arrests. It is claimed on behalf of relators that this is not necessary, under the statute. Section 1062, 1 Comp. Laws, provides that in this report the justice shall, among other things, give “an itemized statement of the officers’ and court fees and how the same were disbursed, if paid to such justice.” Counsel insist that this itemized statement is required only when the fees are paid to the justice by the party arrested. The reason for this is based upon the fact that there is no comma in the sentence after the word “fees.” They admit that the contention of the prosecuting attorney would be correct if a comma were there inserted. We do not think this a fair construction. It is of more importance that the reports contain the officers’ and the court fees where they are not paid than where they are. ' If the offender is found guilty and pays the costs, the public is not interested, only so far as it may desire to see that even a prisoner is justly treated, and that no more costs are collected from him than the law allows. We think it plain that the statute requires a statement of the fees of both the officer and the justice. The blanks furnished to relators on which to make these returns have columns for the statement of the officers’ expenses, as well as for the court expenses. The reports are fatally defective in this respect. A failure to comply with the statute result^ in a forfeiture of fees. Sunderlin v. Board of Sup’rs of Ionia Co., 119 Mich. 535 (78 N. W. 651).

It also appears from the admissions of the relators themselves that they did not comply with section §927, 2 Comp. Laws, which makes it the duty of justices of the peace, when offenders of this character are brought before them, to examine their dockets, and to ascertain from the officers, if they can, whether the person brought before them has been previously convicted. If he has, the law requires that he shall be proceeded against in the manner provided by section 5924, 2 Comp. Laws, for a second or third offense. The statute provides that for a third and all subsequent convictions, the offenders being so charged, the punishment shall be imprisonment not less than six months, nor more than two years. It is quite evident that these relators ignored this important statute, which, if enforced, would undoubtedly do much to prevent drunkenness, and the various disorderly acts which are made criminal under section 5923.

The judgment of the circuit court is reversed, and a judgment entered in this court for respondent.

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


author: Moore, J.

text:
    MACKLEM v. FALES.
    Contracts — Specific Performance — False Representations —
    Corporations — Voluntary Mortgage.
    The owners of a patent for a harrow brought suit for the specific performance of a contract by which complainants and defendants agreed to organize a joint-stock company for the manufacture and sale of harrows, the complainants to con- ( tribute the patent as their share of the capital, and the dedendants money, of which they paid a part. Afterwards the defendants voluntarily caused the company to give a chattel mortgage on all its property to secure its creditors. Had they paid their subscriptions in full, there would have been no debts. Defendants claimed that complainants, when entering into the contract, made false representations as to the expense of selling the harrows. No mention of the expense appeared in the contract. Held:

    (1) That no fraud was shown which would justify setting aside the contract.
    (2) That the chattel mortgage should be set aside.
    (3) That the defendants should be decreed to pay the balance of their subscriptions.
    Appeal from Wayne; Waite-, J.
    Submitted February 18, 1902.
    (Docket No. 24.)
    Decided March 18, 1902.
    Bill by William E. Macklem and John H. Brown against James W. Fales, Alexander McVittie, and others for the specific performance of a contract. From a decree .for complainants, defendants appeal.
    Affirmed.

      Philip T. Van Zile, for complainants.

      Stevenson & Butzel, for defendants.
   Moore, J.

The relief prayed for in the bill was granted. The defendants have brought the case here by appeal. The opinion of the trial court states the questions involved so clearly that we insert it here.

“On the 7th day of April, 1899, James W. Fales, J. D. Leland, John H. Brown, William E. Macklem, A. W. McVittie, and Frederick D. Bolison entered into a contract wherein said parties agreed to organize a joint-stock company. The rights, duties, and obligations of the parties are set forth in the contract. On the same day, or the day following, the articles of incorporation were executed and signed pursuant to said contract. The organization was for the purpose of manufacturing and selling the Common-Sense harrow and other agricultural implements. The Common-Sense harrow was made under patent issued to the said John H. Brown. This bill was filed by William E. Macklem and said John H. Brown to compel specific performance of the contract, praying, among other things, that the stock of said company be issued to the owners thereof, as provided in said contract, and that said Fales and McVittie pay into the treasury of the company certain moneys, as per the terms of said contract, which were as follows:
“ ‘Said Fales and McVittie have agreed, and do hereby severally agree, to pay into the treasury of said corporation, as the needs of its business shall require, each the sum of §6,250 in cash.’
“The testimony shows that the business of the company was carried-on for some time, and that the company became and is at the present time indebted to certain individuals, aggregating about $9,000. Fales was elected general manager of the company. His son, himself, and Mc-Vittie were directors of the company. The proof shows that they refused and neglected to deliver the stock certificates of the company to-the owners thereof, and Fales and McVittie have declined to pay in money according to the terms of the contract, beyond the sum of $1,500 each, which has been paid by them into the treasury of the company.
“It is claimed by the defendants Fales and McVittie that the contract is void; they having been induced to enter into the same by false and fraudulent representations on the part of Brown, Rolison, and Macklem. Previous to the contract and organization of the company, the right to manufacture said harrow and the patent for the States of Ohio, New York, Pennsylvania, Virginia, West Virginia, Delaware, New Jersey, and Maryland was owned by Macklem, Brown, Rolison, and J. D. Leland. Their contribution to the capital stock of the company was the right to manufacture said harrows in said territory; and Fales and McVittie, according to contract, agreed to put in the money as against this right. Fales and McVittie claim that false representations were made to them by said Brown and Rolison as to the price which Rolison and Macklem had paid for the territory. But it is conceded finally that' Macklem used no deception in this regard, but that False was fully advised as to what he had paid before the company was organized, which does not appear to be the fact as to the interest which was claimed to have been purchased by Rolison. However this may be, I don’t think Fales and McVittie were induced to go into the company by the price which it is claimed Rolison had paid, as no' intimate relations appear to have been shown between Fales, McVittie, and Rolison; nor is there anything to show that they relied upon his judgment as to the value of the territory.
“It is further claimed, as a reason for setting aside this-contract, that Brown represented that the harrow could be sold and placed upon the market for 25 cents a section. The evidence shows there was talk concerning this subject at the time, and previous to the signing of the contract. There can be no doubt that the question was discussed, and it seems to be the opinion now, as expressed upon the stand, of Mr. Fales, that Mr. Brown could sell the harrows at that price. But if the contract is set aside by reason of any misrepresentations as to the selling price, or because there was an agreement to sell it at that price, it must be — First, because it was a fraudulent representation upon the part of Brown, upon which Fales and Mc-Vittie relied; or, second, that it was a part pf the contract to sell at that price, which has not been fulfilled. In the former case, I hold it was a representation as to what could be done in the future, and therefore could not be made the basis for setting aside the contract on the ground that it was a fraudulent representation. On the other hand, if it was a contract or agreement to do the work at that, price on the part of Brown or any other person, if it was intended to be a part of the contract in question, it should have been embodied therein. If not a part of the ■contract in question, then the only liability would be upon a separate and distinct contract to perform, and the remedy would not reach to the annulling of the contract in ■question in this suit. It is not clear to the court that the harrow cannot be sold for the price mentioned; and, further, the court is of the opinion that it was not considered, at the time of the making of the contract, that the provision was to be any part of the same, or that Fales and McVittie intended to make an undertaking to that effect upon the part of Brown or any one else a sine qua non of their entering into the contract or organizing the ■company. Hence I conclude that the contract should stand, and is enforceable. From which it follows that Fales and McVittie should pay into the company the balance unpaid, as provided by the contract, which, according to the evidence, would be $4,750 each. I think that the evidence shows that the needs of the company require that the whole amount should be paid in immediately.
“On the 7th day of November, 1899, the Detroit Harrow & Manufacturing Company, by A. McVittie, president, executed to James W. Fales, trustee, a chattel mortgage upon all the tangible property of the company, to secure the debts of the company, and to secure the payment to said McVittie of $1,500, and to said J. W. Fales of $4,000. This mortgage was determined upon at what is claimed to be a meeting of the board of directors, at which said Fales and McVittie were the moving parties, and without having been demanded by the creditors of the company. Such mortgage, as before stated, covers all tangible assets of the company, and really is a conveyance of all its property. Good faith upon the part of the directors demanded that the stockholders should have been notified; and the law requires that the directors, at least, should have been notified, and also should have been notified of the purpose of the meeting. It does not appear to me that ■such was the case, however. The conditions of this mortgage are as follows:
“ ‘That if the said Detroit Harrow & Manufacturing Company ■shall pay or cause to be paid to the said several parties tp whom it is indebted as aforesaid the amount, with interest, of said indebtedness, and also all costs and expenses as hereinafter provided then this obligation is to be void; otherwise to remain in full force and effect. But if default shall be made in the payment of said debts or demands, or any thereof, or the interest fail, or any portion thereof, as the same shall become due, then the party of the second'part is authorized to take possession of and manage the said business of the said first party, complete and carry out its contracts, and sell said property, or any portion thereof, in such manner as he shall deem best for the parties interested in said trust, either at public or private sale, in bulk or in parcels, in the ordinary course of business or otherwise, at such times and ón such terms as may, in his discretion, be advisable, and for the best interests of the said creditors and of the party of the first part; and he is hereby authorized to collect all its book accounts and bills receivable, and to that end to use the ordinary means, including the use of the first party’s name, but at his own expense as trustee, and, after all reasonable efforts have been exhausted to collect such accounts, to sell, after five days’ notice to said first party, the same, or such portion thereof as may remain uncollected. And said trustee is hereby authorized, at anytime when he shall deem himself, for said indebtedness, or any portion thereof, insecure, or if said party of the first part shall sell or assign or dispose of, or shall remove or attempt to remove, the whole or any portion of said property from the city of Detroit, without the written consent of the said party of the second part, except in the usual course of trade, then from this time to enter upon said premises, or-any place or places where said mortgaged propeuty or any part thereof may be, and take possession thereof, and sell and dispose of the same, or so much thereof as may be necessary to pay the expenses incurred in and about the taking of possession of said property, and in the care thereof, and in and about the foreclosure of this mortgage, the costs and charges, taxes and insurance, hereinafter mentioned, and the claims and indebtedness hereinbeforementioned, and each and all thereof, and the interest thereon.’
“ Then it provides that he may pay taxes, insurance, and attorney’s fees, and a reasonable compensation to-himself for his services as trustee, etc.
“It will be seen by this instrument that the entire business was taken from the hands of the company, and placed in the hands of Fales, or might be, at his will and pleasure. It is proposed to secure Fales, and provide for the payment to him of $4,000, which the court holds he was not entitled to; and to said McVittie the sum of $1,500, which he was not entitled to. The terms of the mortgage are as severe as would be expected between antagonistic and hostile parties, and the management of the business, the disposition of the property, is all placed in the hands of one who, to say the least, was not, at the time of the giving of the mortgage, displaying any great amount of zeal in the interests of all the stockholders. I do not think the mortgage ought to be sustained. In my judgment, the courts ought not to look with favor upon transactions of this kind. It really amounts to the gratuitous mortgage given by parties to secure themselves, without notice to the stockholders or to all the parties interested. The mortgage, therefore, will be set aside and held for naught.
“When the money is paid into the company by Fales and McVittie pursuant to the terms of the contract, the company will not be insolvent. Hence the court does not feel at liberty to provide for a receiver at this time, but the future destiny and management of the company should be left to the stockholders and board of directors, who, it is assumed, will act in good faith for the best interests of the company.
“Some question might be raised as to the rights of the creditors. It doesn’t appear from the evidence that the creditors, outside of Fales and McVittie, ever requested the mortgage or ever accepted it, or in fact, at this time or at any other time, have relied upon it as security for their claims; but they are fully protected, or will be upon the payment by Fales and McVittie of the amount mentioned, which will make the corporation solvent and place it in a position to pay the debts, to which, in the opinion of the court, that money ought to be dedicated first of all.
“ I can see no legal reason for not delivering the- certificates of stock to Macklem. They should be so delivered.
“A decree may therefore be entered providing (1) that the certificates of stocks be delivered to Macklem and others, if there are any others to whom they belong; (3) that the contract is valid and binding, and Fales and- Mc-Vittie should pay into the treasury of the company the balance as mentioned above; (3) that the chattel mortgage purporting to have been given by the company to Fales as trustee be set aside.”

The legal proposition discussed by counsel for defendants is stated by them as follows:

“ Undoubtedly equity has jurisdiction, where a person has been induced by fraudulent representations to enter into a partnership, to rescind the contract at his instance, and put an end to it ab initio.” Oteri v. Scalzo. 145 U. S. 588 (12 Sup. Ct. 895).

It is insisted that Mr. Fales and Mr. McVittie were induced to enter into this contract by means of fraudulent representations, and especially by the statement that the harrow could be sold at the expense for selling of 25 cents a section. It is said this was not an expression of an opinion simply, but was made in bad faith, by one possessing superior knowledge, and with the intention to deceive, and, this being so, defendants could refuse to go on with the contract; citing French v. Ryan, 104 Mich. 630 (62 N. W. 1016). In this connection it is a somewhat significant fact that, in the written contract which was entered into by the parties, no suggestion is made as to what the expense would be for selling the harrows.

The record is very long. A great deal of testimony was taken. The circuit judge was of the opinion no fraud was shown which would justify setting aside the contract. We agree with him in that conclusion. See Gordon v. Butler, 105 U. S. 553, 556; Pike v. Fay, 101 Mass. 134; Dawe v. Morris, 4 L. R. A. 158, and note (s. c., 149 Mass. 188, 21 N. E. 313, 14 Am. St. Rep. 404); “Matters of Opinion,” Cooley, Torts, p. 483; French v. Ryan, 104 Mich. 625, 630 (62 N. W. 1016). The important question is one of fact. It would profit no one to set out the testimony here, or to attempt to analyze it. We shall content ourselves with saying we agree with the conclusions reached by the circuit judge.

The decree is affirmed, with costs.

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


text:
    WILSON v. TERRY.
    1. Deeds — Life Estate — Mortgage.
    A deed conveying to the grantee, her heirs and assigns, certain real estate, to have and to hold such premises to the grantee during her natural life only, with remainder iirfee simple to the heirs of her body, conveys a life estate only to the grantee, and a mortgage given by her cannot be foreclosed against her heirs.
    2. Same — Habendum—Repugnancy—Intention.
    Where there is a repugnancy between the granting clause and the habendum, the latter will control, if it is clear from the whole instrument, and the attendant circumstances, that such was the intention of the grantor.
    3. Shelley’s Case — Abrogation of Rule.
    The rule in Shelley’s Gase is abolished by statute. 3 Comp. Laws, § 8810.
    Appeal from Mason; McAlvay, J.
    Submitted February 19, 1902.
    (Docket No. 99.)
    Decided March 18, 1902.
    Bill by David Wilson against Alice Terry and others, heirs at law of Ada O. Terry, deceased, and George Blass, to foreclose a mortgage. Defendant Blass filed an answer in the nature of a cross-bill, asking the foreclosure of a prior mortgage. From a decree for complainant and defendant Blass, the other defendants appeal.
    Reversed.

      Henry C. Hutton, for complainant.

      Loud & Stezvart, for defendant Blass.

      Fitch & Reek, for appellants.
   Moore, J.

The bill of complaint in this case was filed to foreclose a certain mortgage made and executed by one Ada O. Terry, deceased, to complainant. The defendants Alice Terry, Blanche Sullivan, and Stewart Terry are the minor heirs at law and next of kin of the said Ada O. Terry. The defendant George Blass is a prior mortgagee. The principal question involved in the case is the construction to be placed upon the deed through which Ada O. Terry derived title. This deed was given to Ada O. Terry on March 21, 1887, by the heirs at law of one James Chinnery, deceased, who—

“For and in consideration of the sum of two thousand four hundred (2,400) dollars, to them in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, do by these presents grant, sell, remise, release, alien, and confirm unto the said party of .the second part, and her heirs and assigns, all those certain pieces or parcels of land, * * * together with, all and singular, the hereditaments and appurtenances thereunto belonging or in any wise appertaining: To have and to hold the above-described real estate and appurtenances unto the said party of the second part for and during the natural life, only, of her, the said Ada O. Terry, with remainder in fee simple to the heirs of the body of the said Ada O. Terry her surviving, and, in default of such heirs, then remainder in fee simple to all other heirs of her, the said Ada O. Terry.”

The mortgage ‘to complainant sought to be foreclosed was given March 10, 189G, by Ada O. Terry, and the mortgage to George Blass was given by her February 27, 1896. The defendant George Blass answers in the nature of a cross-bill, asking to have his mortgage foreclosed, and that his lien be declared a first lien on said premises, and a prior lien to that of the complainant under his mortgage.

There is another deed in evidence, given by Sarah J. Corwin, guardian, to said Ada O. Terry, of an undivided one-ninth interest in the same lands, reciting that the same is given for the purpose of correcting a supposed error in a former deed; but it does not appear what the former deed was, nor the supposed error contained in it. This deed conveys a one-ninth interest in the land to Ada O. Terry. The record does not show the date of this deed.

The question to be determined is whether the habendum clause of the deed, which upon its face would indicate that a life interest, only, was to be enjoyed in the estate of Ada O. Terry, is repugnant to the ‘ ‘ premises ” of said deed. The circuit judge held that the limitation in the habendum clause of the deed is repugnant to the premises, and the recital in the premises of the deed must control. He found, as a matter of law, that the deed in ■ question conveyed to Ada O. Terry the title in fee simple to said premises, and that the mortgages of the complainant and the defendant George Blass are subsisting liens upon said premises. The minor heirs have brought the case here by appeal.

Was the circuit judge right in this construction ? The rule in Shelley’s Case is abolished in this State by statute. 3 Comp. Laws, § 8810; Bailey v. Bailey, 25 Mich. 188. In Smith v. Smith, 71 Mich. 633 (40 N. W. 21), it is said:

“It is well settled by numerous cases that, when the habendum is repugnant and contrary to the granting clause, it is void. It can only affect the grant when it can be construed as consistent with the premises. It cannot devest the grantee of the legal estate already granted him in the premises, nor can the habendum frustrate a grant complete before, or abridge or lessen the estate granted. Nightingale v. Hidden, 7 R. I. 118; Pynchon v. Stearns, 11 Metc. (Mass.) 316 (45 Am. Dec. 210); 4 Kent, Comm. 468; 2 Bl. Comm. 298; Green Bay, etc., Canal Co. v. Hewett, 55 Wis. 105 (12 N. W. 382, 42 Am. Rep. 701); Huntington v. Lyman, 138 Mass. 205; Hafner v. Irwin, 34 Am. Dec. 390 (20 N. C. 433); Warn v. Brown, 102 Pa. St. 352; Flagg v. Eames, 40 Vt. 23 (94 Am. Dec. 363). It must be conceded that the habendum cannot perform the office of devesting the estate already vested by the granting clause, and it is void if repugnant to the estate granted.”

In the same case it is also said:

“The object to be arrived at by courts in construing deeds or other contracts is to ascertain clearly the intention of the parties. It is said by the court in French v. Carhart, 1 N. Y. 102:
“ ‘It is a cardinal rule in the construction of contracts that the intention of the parties is to be inquired into, and, if not forbidden by law, is to be effectuated. Too much regard is not to be had to the proper and exact signification of words and sentences, so as to prevent the simple intention of the parties from taking effect. And whenever the language used is susceptible of more than one interpretation, the courts will look at the surrounding circumstances existing when the contract was entered into, the situation of the parties, and of the subject-matter of the instrument.’
“It was said by Mr. Justice Cooley in McConnell v. Rathbun, 46 Mich. 305 (9 N. W. 426):
“ ‘ All grants must be construed reasonably, and in the light of the surrounding circumstances.’
“And in that case the circumstances proved by parol testimony controlled the construction of the deed.
“In ascertaining the true meaning of the parties, the entire instrument is to be examined, and provisions apparently inconsistent with each other are to be reconciled, if possible.
“In Smith v. Packhurst, 3 Atk. 136, Lord Chief Justice Willes laid down the rule:
“ ‘ Such a construction should be made of the words in the deed as is most agreeable to the intention of the grantor. * * * We have no power, indeed, to alter the words, or to insert words which are not in the deed; but we may and ought to construe the words in a manner the most agreeable to the meaning of the grantor, and may reject any words that are merely insensible.’ ”

In Powers v. Hibbard, 114 Mich. 533 (72 N. W. 339), it is said:

“It is undoubtedly the rule that wnere an estate is expressly granted, and there follows a reservation, exception, or condition which destroys the grant, it is void, being repugnant to the thing first granted; and the rule is stated by Kent (4 Kent, Comm. 468) that when an estate is expressly granted or demised in the premises of a deed, and the habendum is repugnant to the estate granted or demised, the habendum is void; as, if a grant be to A. and his heirs, habendum to him for life, the habendum would be utterly void. In Smith v. Smith, 71 Mich. 633 (40 N. W. 21), this same rule was stated. This is the extent to which the cases cited by counsel for defendants go. But these rules must be understood and taken in connection with other rules of construction; as, where the grant is uncertain or indefinite concerning the estate intended to be vested in the grantee, the habendum performs the office of defining, qualifying, or controlling. Sumner v. Williams, 8 Mass. 162 (5 Am. Dec. 83). Again, where it is impossible to determine from the deed and the surrounding circumstances that the grantor intended the habendum to control, the granting words will govern; but, if it clearly appears that it was the intention of the grantor to enlarge- or restrict the granting clause by the habendum, the latter must control.
“ In Bassett v. Budlong, 77 Mich. 338 (43 N. W. 984, 18 Am. St. Rep. 404), a quitclaim deed from a husband, purporting to convey to his wife, and to her heirs and assigns forever, the farm on which they resided, but which was declared to be upon certain express conditions and reservations following the habendum clause, viz.: (a) That the grantee should not convey or mortgage the land during the lifetime of the grantor without his written assent, or his joining in the conveyance; (b) that, in case of the death of the grantee prior to the grantor’s decease, the land should revert to him and his assigns, — was held not to convey the land to the grantee in fee simple absolute, but that the effect of the arrangement entered into was that the title should, in the event of the death of either of the parties, pass to the survivor. Certain rules of construction of deeds of conveyance were laid down in that case by Mr. Justice Champlin, as follows:
“1. The proposition that a condition, reservation, or exception which restricts a grant of a fee simple absolute title to land, being repugnant to the granting part of the deed, is void, can only be true in those cases where the repugnancy is such that the intention of the parties cannot be ascertained from the whole instrument, or, if ascertained, cannot be carried into effect in accordance with established principles of law.
“2. Every deed or contract is supposed to express the intention of the parties executing it, and, when the object or .purpose of such instrument is palled into question in a court of justice, the first inquiry is, What is the intention of the parties, as expressed therein ? and it is the duty of the court to so construe said instrument as to carry out such intent, if no legal obstacle lies in the way.
“In Bodine’s Adm’rs v. Arthur, 91 Ky. 53 (14 S. W. 904, 34 Am. St. Rep. 162), it was held that where there is a repugnancy between the granting clause and the habendum of a deed, and it cannot be determined from the whole instrument and the attendant circumstances that the grantor intended that the habendum should control, the granting clause must control; but where it appears from the whole conveyance and the attendant circumstances that the grantor intended the habendum to enlarge, restrict, or repugn the granting clause, the habendum must control, for the reason that it is the last expression of the grantor’s wish as to the conveyance. In a note to that case, as reported in 34 Am. St. Rep. 162, the rule is stated that the habendum, though repugnant to the estate previously granted, controls, if it is in accord with the intention of the grantor, — and citing, in support of the proposition, Fogarty v. Stack, 86 Tenn. 610 (8 S. W. 846); notes to Berridge v. Glassey, 56 Am. Rep. 324 (112 Pa. St. 442, 3 Atl. 583), and Bassett v. Budlong, 18 Am. St. Rep. 409 (77 Mich. 338, 43 N. W. 984). See, also, McCurdy v. Mining Co., 3 Nev. 27; Downing v. Birney, 112 Mich. 474 (70 N. W. 1006).
“Who can doubt, upon a reading of the whole instrument urider consideration here, what 'the intention of the parties was as to the estate to be granted, when we take into consideration the attendant circumstances and surroundings of the premises ? ”

See Karchner v. Hoy, 151 Pa. St. 383 (25 Atl. 20).

If we read the whiole of the deed, and seek to find from it the intention of the parties thereto, is it not clear what the intention was ? Is it not clear that it was intended not to convey the title in fee to Mrs. Terry, but to grant to her the right “ to have and to hold the above-described real estate and appurtenances unto the said party of the second part for and during the natural life, only, of her, the said Ada O. Terry, with remainder in fee simple to the heirs of the body of the said Ada O. Terry her surviving, and, in default of such heirs, then remainder in fee simple to all other heirs of her, the said Ada O. Terry?” We think both of these questions must be answered in the affirmative. There is nothing in the habendum repugnant to the granting • clause, but when the two are read together the intention of the parties is clear, and should be respected.

The decree of the court below is reversed, and one will be entered here in accord with this opinion. Appellants will recover costs of this court.

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


author: Hooker, C. J.

text:
    LOUDON v. CARROLL.
    1. Pleading — Joinder of Counts — Tort—Assumpsit.
    A count for damages for fraud and deceit in a contract for the sale of land may be joined in a declaration with a count for money had and received to recover the'purchase price, where the contract has been rescinded for fraud' or mistake. Hallett v. Gordon, 123 Mich. 56?, 573.
    2. Same — Election.
    Such counts are not inconsistent; both treat the contract as voidable; and the plaintiff will not be required to elect upon which count he will recover.
    3. Jurisdiction — Rescinded Sale.
    Where a grantee wishes to rescind a sale for fraud, or mistake, and tenders a reconveyance, he may recover the purchase price in an action at law.
    Error to Grand-Traverse; Mayne, J.
    Submitted February .19, 1902.
    (Docket No. 55.)
    Decided March 18, 1902.

      Assumpsit by William Loudon against Frederick N. Carroll to recover the price paid for land. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Patchin & Crotser, for appellant.

      Pratt & Davis, for appellee.
   Hooker, C. J.

The defendant, being owner of some timbered lands, deeded them to the plaintiff for a consideration of some $2,000. Subsequently the plaintiff, who bought the land for the timber, claimed that in estimating the stumpage a mistake was made, whereby his estimator went upon a different tract, containing a greater amount of timber than the tract that he was looking for; that this mistake was due to wrong directions given to him by defendant’s foreman. He tendered back the deed and demanded the money paid, and this was refused. The plaintiff then commenced this case by attachment. His declaration contains two counts, alleging fraud and deceit on the part of the defendant and claiming damages. To these were appended the common counts. The plaintiff recovered, and defendant has appealed.

Two theories are set up by the declaration, — one that the defendant has practiced fraud and deceit, whereby upon rescission he became liable in damages; the other, that the contract has been rescinded for the fraud or mistake, and the plaintiff has thereby become entitled to recover the consideration. Defendant says that the first are counts sounding'in tort, and, being so, the action as to them is in form ex delicto, which cannot be joined with a count for money had and received to plaintiff’s use. It may be that, upon demurrer, we should be compelled to hold that the special counts are not technically counts in assumpsitj but the charge made by them, and the damages sought to be recovered, might be made and sued for in assumpsit, and, these counts being filed in an attachment case, and joined with other counts clearly in assumpsit, we should treat them as such upon the trial, and therefore hold that there is not a misjoinder for the reason stated. See Hallett v. Gordon, 122 Mich. 567, 573 (82 N. W. 827).

It is said these counts are inconsistent, but we think not. All treat the contract as voidable; some for fraud and deceit, and the others — i. e., the common counts — for either fraud or mistake; and either justifies rescission and recovery of the contract price. It was not the right of the defendant to require an election, as plaintiff might recover on either theory, unless there is something to prevent in the fact that this was an executed contract for the sale of land.

Counsel contend that equity alone has jurisdiction in such cases of rescission. There is a plain distinction between a case where a grantor seeks to rescind a contract which he has executed by giving a deed when the grantee refuses to reconvey, and one where the grantee wishes to rescind and tenders a reconveyance to that end. In the former case the intervention of a court of equity may be necessary, because a court of law cannot afford adequate relief; but such is not the case in the other instance. There are cases which support the right to bring an action for the consideration after a tender of reconveyance of land, and no satisfactory reason for denying the application of the general rule in other cases suggests itself. The case of McKinnon v. Vollmar, 75 Wis. 82 (43 N. W. 800, 6 L. R. A. 121, 17 Am. St. Rep. 178), is squarely in point, and Newton v. Tolles, 66 N. H. 136 (19 Atl. 1092, 9 L. R. A. 50, 49 Am. St. Rep. 593), is analogous.

We are of the opinion that the undisputed proofs show that the parties labored under a misapprehension of fact. Both understood that an attempt was made to ascertain the stumpage on given descriptions of land, and an estimate was made and acted upon by both upon the supposition that it was an estimate of the timber upon those lands. It is proved to a demonstration that it was not. When discovered, plaintiff at once complained, and took steps within a reasonable time to rescind. A verdict might have been directed for the plaintiff, and, as the amount of damages could not be in dispute, there was no necessity for the services of the jury, further than to formally render such a verdict as the court should direct. Hence it is unnecessary to discuss other questions.

We find no error, and the judgment is therefore affirmed.

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


author: Montgomery, J.

text:
    BOLIO v. MARVIN.
    1. Deeds — Reservation—Easement.
    The clause, “Saving and preserving from the operation hereof the road running along the southerly line of said parcels,” following the descriptive part in a deed, reserves in the grantor the right to use the road, but does not except the fee, which xiasses to the grantee.

      2. Same — Construction.
    In the construction of a deed, the intent of the grantor is to be gathered from the whole instrument, and the language employed is to be taken most strongly against the grantor.
    Error to Wayne; Carpenter, J.
    Submitted February 19,1902.
    (Docket No. 76.)
    Decided March 18, 1902.
    Ejectment by Marie Bolio and others against Martha Marvin. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      Charles C. Stewart (U. H. .Markham, of counsel), for appellants.

      Tarsney & Fitzpatrick, for appellee.
   Montgomery, J.

In 1854 Gideon Bolio owned certain lands in the county of Wayne, and conveyed by warranty deed to one John L. Whiting 30 acres of this land. The following clause followed the descriptive part of this deed:

“Saving and preserving, however, from the operation hereof, the road running along the southerly line of said parcels from the said Saginaw turnpike, and the road in the rear or westerly side of said first-described tract.”

It appears that these roads or ways were used by Gideon Bolio in passing to and from other lands belonging to him, and were, to some extent, used by the public. In 1875 the road running along the southerly side of said land, together with 33 feet lying immediately south, was laid out by the proper highway authorities as a public highway. In 1892 certain proceedings were taken to vacate this highway by the common council. The defendant, who derived title through the conveyance to Whiting, proceeded to fence in the 33 feet included in the original Whiting deed, and the plaintiffs, descendants of Gideon Bolio, bring this action of ejectment to recover this strip. The learned circuit judge directed a verdict for defendant, and plaintiffs bring error.

The decision of the circuit judge rested upon the construction of the deed of Gideon Bolio to Whiting. The circuit judge correctly held that, in determining whether this clause was intended as an exception to the grant or was simply a reservation of an easement, the two cardinal rules of construction should be kept in mind, namely, that the intent of the grantor is to be gathered from the whole instrument, and that the language employed is to be taken most strongly against the grantor. Having these rules in mind, we think the circuit judge reached the correct conclusion. It is to be kept in mind that the grant was broad enough to cover the land included in this road, and that the road would not have been open to the grantor to use unless by some stipulation he retained the right to use it. The language employed was, “ Saving and preserving the road.” We think this language means, “Saving and preserving the right to use the road.” As pointed out by the learned circuit judge, had the purpose been other than this, the fair inference is that the land conveyed would have been bounded by the highway. There was not the slightest occasion to include this land in the deed unless some interest was intended to be vested in the grantee. We find this view sustained by'numerous cases. See Gould v. Howe, 131 Ill. 490 (23 N. E. 602); Sullivan v. Eddy, 154 Ill. 199 (40 N. E. 482); and Capron v. Kingman, 64 N. H. 571 (14 Atl. 868), — a case quite in point.

Counsel for plaintiffs cite the case of Reynolds v. Gaert ner, 117 Mich. 532 (76 N. W. 3); but the language employed in the deed construed in that case is very different from that which we are now construing. In that case the language was, Except two and forty-six hundredths acres to the Chicago & Canada Southern Railroadand it was found that the plaintiff intended to convey all the land described, excepting therefrom the 2.46 acres. So, in Patrick v. Young Men's Christian Ass'n, 120 Mich. 185 (79 N. W. 208), the language employed plainly imported an exception. We do not so construe the language of the deed here in controversy.

The judgment will be affirmed.

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


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    MACK v. COLE’S ESTATE.

    1. Evidence — Conclusions—Facts.
    Where the genuineness of a note presented by a woman as a claim against her mother’s estate is involved}, a witness cannot state that the deceased had no opportunity, on the day of the date of the note, to sign it; but facts which would show she had no opportunity may be proved.
    2. Same — Admissions.
    A conversation which occurred between the witness and claimant soon after her mother’s death, in which she asked him if he did not know she had her mother’s note, and he said “No,” is competent on behalf of the estate in such suit.
    3. Same — Genuineness of Note — Former Suit.
    It was claimed on behalf of the estate that the note was not genuine, and that the items which entered into the consideration of the note had been paid and satisfied by the conveyance of certain real estate. Held, that it was competent to introduce the testimony and proceedings in a former suit brought by the mother to set aside the deed, as there was a strong presumption from the entire record in that suit that all the items entering into the note were used as a defense, and made the basis of a decree confirming the title to part of the premises.

      4. Admissions — Execution of Note.
    An admission of the genuineness of a signature over which a note is claimed to have been written is not an admission of' the execution of the note.
    Error to Wayne; Rohnert, J.
    Submitted February 20, 1902.
    (Docket No. 112.)
    Decided March 18, 1902.
    Esther C. Mack presented a claim against the estate of Sarah C. Cole, deceased, on a promissory note. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for claimant, defendant brings error.
    Reversed.

      Ignatius J. Salliotte and Thomas Hislop, for appellant.

      Barbour & Bexford, for appellee.

      Rehearing denied April 22, 1902.

   Hooker, C. J.

The claimant, Mrs. Mack, presented a claim against the estate of her mother, Sarah C. Cole. It consisted of a promissory note for $600, purporting to have 'been signed by the deceased, the claimant being named as payee. It was dated April 2, 1895. The claim was disallowed, but on appeal the jury found for the claimant, and the case has been brought to this court by the defendant.

After claimant had made her prima facie case, the defendant, while admitting the signature of the deceased, claimed that the note .was written over her signature, and was a forgery. Counsel also sought to show that the claimant had, for some years previous to April, 1895, lived with .the deceased under an arrangement to care for her, in consideration of certain deeds of property theretofore given to her; that about April 1, 1895, a violent personal encounter occurred between them, which resulted in her going away, and that a few months later a suit was commenced in chancery by the deceased to set aside these deeds; that, upon the hearing, testimony was introduced showing many items of labor and expense incurred by claimant in relation to the previous contract, all of which were taken into consideration by the trial judge, who rendered a decree which gave to this claimant a portion of the property as remuneration for her labor and expense. It was not claimed that the note itself was before that court, but it was claimed that all of the items which went to make up the amount for which the note was given were litigated there.

The questions in the case may be divided into two classes First, those which relate to the question of forgery; second, those growing out of the attempt to prove a former adjudication.

The body of the note was in the handwriting of the claimant, and was in different ink from that used in the signature. There was testimony that there had been seen at the residence of the deceased previous to April, 1895, some blank sheets of foolscap paper with deceased’s signature upon them, and that the existence of the note was unknown to other members of the family until after Mrs. Cole’s death. On the other hand, the claimant’s daughter testified to the circumstances attending the alleged execution of the note, and explained the use of two kinds of ink.

It was proper that the witness Carpenter should be denied the privilege of stating that deceased had no opportunity to sign the note upon April 2, 1895. If it was true, she could state the facts which would show that there was no opportunity, and this the judge held that she might do. His course was vindicated by the subsequent testimony, which showed that she was not in a situation to know that no such opportunity occurred.

One Stevenson testified that he had a talk with claimant about this note soon after her mother died, and that she told him that she had “ Ma’s note,” and that she supposed lie knew about it, and inquired if be did not, and he told her “ No.” The court struck out this testimony, and error is assigned. We think this testimony was competent.

Counsel offered in evidence the files and records in the chancery case for the purpose of showing a former adjudication. The court held that they were admissible only so far as they related to this note. Now, the note was not mentioned in the pleadings or testimony in that case, and we understand that the proceedings were ruled out. We are of the opinion that, if the defendant could show by them that the items which made up the consideration for which the note was given were used by way of defense against the intestate’s bill to set aside the deeds, and were made the basis upon which the court made a decree allowing complainant to retain a portion of the lands theretofore deeded to her, it would be a defense to the note, for it would show payment or satisfaction of the debt for which the note was given. Whatever may be said about the pleadings in that case, the testimony shows that claimant asserted a right under the deeds by reason of a part performance of her contract, and brought in some evidence regarding the items. It does not appear that she then claimed to have a note, or omitted any items. The finding of the judge contains the following statement, viz.:

. “ It is clearly established on both sides that defendant has paid enough by actual work and money to own and deserve the Beech property, and her title to it will not be disturbed, but confirmed. It is equally clear that the Dearborn property cannot be paid for by defendant in the care and attention such as complainant expected. * * * A decree will be granted for complainant as to one-half of the Dearborn 16£ acres, being the portion on which the dwelling house is located, and that defendant deed the same back to complainant, to enable complainant to raise money, if need be, to be cared for therefrom, and to enjoy the income of the entire acreage during complainant’s lifetime; the Beech property to belong to defendant.”

It was evident that the court was of the opinion that the land more than paid the daughter for her labor and financial aid to the mother, and therefore compelled her to reconvey a portion of the premises. It is equally clear that he allowed'her to retain some of the land only because of such labor and aid. Whether the items that had gone to make up this note were included or not is a question of fact. The pleading does not expressly show it, but it is .claimed that the testimony taken in the chancery case shows that they were considered, and it may be argued that there is a strong presumption from the entire record that they were all included. This record was competent testimony upon the question, which should have been submitted to the jury if the evidence was- not so conclusive as to justify a decision of that question by the court.

The claimant was a witness in the chancery case, and was examined at length in relation to the transactions between her mother and herself on and after April 1, 1895. The defendant claims that this testimony was admissible as bearing upon the probability of the execution of the note. We think defendant is right about this. It is claimed, however, that the execution of the note was admitted-on the trial; but the admission is qualified, and, in view of the proofs offered and contention made, could hardly have been considered an admission of more than the genuineness of the signature.

There are other assignments of error, but many of them are not based on exceptions, and others need not be discussed, as they are not likely to affect another trial. We think the alleged books of account of Mrs. Cole were not admissible under the preliminary proof offered regarding them.

For the reasons stated, we feel constrained to reverse the order of the circuit court, with costs, and remand the cause for a new trial.

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


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    WALTERHOUSE v. WALTERHOUSE. [Two Cases.]
    1. Deeds — Wrongful Destruction — Contents.
    In a suit to restore a deed purposely destroyed by the defendant, the complainant will not be required to make strict and technical proof of its contents, but will be aided by presumptions.
    2. Evidence — Other Suit — Parties.
    In a suit by cbmplainant as next friend for minors, defendants cannot introduce the testimony of a witness taken in another suit between themselves and the complainant, but in which the minors were not parties.
    8. Appeal — Questions of Fact.
    The most important question in this case is one of fact, in which the court concurs in the finding of the circuit judge.
    Appeals from. Clinton; Stone, J.
    Submitted February 19, 1903.
    (Docket No. 90.)
    Decided March 18, 1902.
    Bills by Charlotte E. Walterhouse and Myrtle V. Walterhouse, infants, by Sylvia E. Walton, their next friend, against Frank Walterhouse, Elmer Walterhouse, and others, to restore a deed. From decrees for complainants, defendants appeal.
    Affirmed.

      Norton & Fooling, for complainants.

      J. O. Flynn and Lyon & Moinet, for defendants.
   Hooker, C. J.

These are companion cases, and were heard as one. The two complainants were the infant daughters of George Walterhouse, deceased. Frank was his son, and Sylvia E. Walton, the next friend of the complainants, was the widow of George Walterhouse. The complainants allege that on March 16, 1895, George Walterhouse executed a deed, in which he conveyed to Myrtle 20 acres of land, and to Charlotte 40 acres; that the same was acknowledged before a magistrate named Bates, to whom it was given, with directions to deliver it after the grantor’s death. He died on April 14, 1896. The deed was subject to a life estate in his widow, created at the same time by another paper, also left with Bates. The bills charge that the deed was delivered to the widow after the death of her husband, and that it came to the possession of the complainants’ brother Frank, who was-incensed at the disposition of the property, and destroyed or concealed it. The bills pray for its restoration. Counsel for defendants raise three questions: (1) That there-was no valid delivery of the deed; (2) that, if any one destroyed the deed, it was Frank’s mother, and not himself ; (3) that the evidence is not sufficient to show that a. deed was made.

Taking these questions in the inverse order, we may say that we have no doubt of the soundness of the grantor’s, mind. The secondary evidence of the contents of the deed is somewhat indefinite' and technically incomplete, but it maybe helped by the application of the maxim, “Omnia prcesumuntur in odium spoliatoris. ” See In re Lambie’s Estate, 97 Mich. 55 (56 N. W. 225). This involves the second question, and leads us to say at this point that we-find Frank Walter ho use responsible for the destruction or suppression of the deed.

It remains to discuss the question of delivery. It is contended by the defendants that, if the deed was made at all, it, ‘with other papers, was given by the grantor to Bates, the scrivener, with instructions that if he, the grantor, should get up again, and want the papers, he should have them, and, if he died, they were to be given to his wife. This is said to have been, in substance, a delivery,subject, to the right of recall; a deposit with Bates, to be delivered after the grantor’s death, not unconditionally, but if the grantor should not direct otherwise. It is contended by the defendants that this is not a valid delivery in escrow, and that it conveyed no title. Complainants’ counsel contend, on the other hand, that under the rule as it exists in this State there was a continuing delivery, which became valid and related back when the grantor died without exercising the reserved right to recall the deed; and the case of Thatcher v. Wardens, etc., of St. Andrew’s Church, 37 Mich. 264, is cited as the first enunciation of that doctrine in this State.

The only testimony which tends to show the directions given by the intestate to Bates was the stenographic minutes of testimony given by Bates in a replevin case between Sylvia E. Walton and Frank Walterhouse over some property presumably claimed by the former under one of the papers confided to Bates’ care. Neither of the minors was a party, nor was Elmer Walterhouse. Elmer did not object to the introduction of this testimony, but counsel for the minors did object, and, as they had no opportunity for cross-examination on the trial of the replevin case, not being parties, the testimony offered was not admissible, under the general rules applicable in such cases, unless the fact that their next friend was a party in interest in that suit affects the question. • She is but a nominal party here, and the rights of the minors are not affected by the fact that she was a party to the former case, and in fact called Bates as a witness for herself. See 1 Greenl. Ev. (16th Ed.) §§ 163, 163a, and Appendix 2, § 164; Jones, Ev. § 341. The complainants insist that this testimony of Bates should be disregarded, and that there is no evidence in the case of any reservation of a right to recall the deed, and that there is evidence in the case from which a valid delivery in escrow may be inferred; and that, even if there were not; the fact that the deed was delivered to the widow raises a presumption of a valid delivery, and imposes upon the defendants the burden of proof.

The learned circuit judge, who saw and heard the witnesses, was of the opinion that there was testimony tending to show something more than a mere leaving of these papers with Bates as agent for the intestate, and that it justified the inference that they were given to him with a view to a final disposition of this property, and not subject to recall. In this we concur, and think that the conduct of all the parties was consistent with that understanding. It therefore becomes unimportant to discuss the legal question growing out of the alleged reservation by the intestate of the right to recall the deed.

The land conveyed consisted of 60 acres, and the circuit judge found that the 40-acre parcel, conveyed to Charlotte, was a homestead, and that the deed was void to the extent of a legal homestead, but valid as to the excess, if the value exceeded $1,500. He entered a decree restoring the deed, and provided for a reference to set off a homestead from Charlotte’s parcel. The defendants do not complain of this portion of the decree, and complainants have not appealed.

The decree of the circuit court is affirmed, with costs of this court against defendants personally, except the minor defendants, Myrtle and Charlotte, in the respective cases.

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