text:
    FOREST CITY STEEL & IRON CO. v. DETROIT & TOLEDO SHORE LINE RAILROAD CO.
    1. Sales — Actions—Pleading—Construction.
    An account filed with a receiver in a creditors’ suit for the price of goods sold and delivered could not be said, under strict rules of pleading, to allege a claim for damages based on refusal to perform the contract of purchase.
    2. Insolvency — Claims—Breach of Contract.
    Damages for breach of contract are legitimate claims against an insolvent’s estate.
    8. Bankruptcy — Claims—Breach of Contract.
    Claims for damages for breach of contract are provable under the bankruptcy law against the estate of the bankrupt.
    4. Judgment — Res Judicata — Collateral Attack — Claim Presented to Receiver.
    Where a Federal court in equity was in possession of the estate of defendant through its receiver appointed in a creditors’ suit, and plaintiff presented its claim to the receiver as for goods sold and delivered, and the court, on denying the claim on the ground that there was no delivery, treated the statement of claim as sufficient to admit proof of refusal to perform the contract of purchase, and heard evidence in support of such claim, which he also denied, this court cannot inquire, in support of an action for damages, whether the pleadings justified his inquiry, since he had jurisdiction, and, if he erred, the remedy was by a direct proceeding.
    Error to Wayne; Rohnert, J.
    Submitted June 18, 1908.
    (Docket No. 27.)
    Decided September 10, 1908.
    Assumpsit by the Forest City Steel & Iron Company, against the Detroit & Toledo Shore Line Railroad Company for breach of a contract for the sale of certain building material. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Brennan, Donnelly & Van De Mark {Henry L. Lyster, of counsel), for appellant.

      Bowen, Douglas, Whiting & Murfin, for appellee.
   Hooker, J.

The plaintiff brought this action, claiming damages for breach of a written contract to deliver certain iron building material to be paid for on delivery. It proved the contract and the offer to deliver the goods upon payment, the refusal to pay, and the ultimate'reshipment of the goods to Cleveland, and a subsequent offer to sell them. By way of defense the defendant showed that at the time of such tender of delivery the defendant’s property was in the hands of a receiver in a creditors’ suit pending in the Federal court at Detroit; that the plaintiff filed a claim in said court upon an alleged open account stated, or, perhaps, more properly, for the contract price of the iron; that the same was heard, and the petition for allowance dismissed.

It appeared that the ground of such action was that, as the property was not delivered to defendant, the plaintiff could not recover the contract price, and that—

“ The utmost claim that the petitioner could be allowed under any circumstances would be the damages it had suffered by the nonacceptance of the property, viz., the difference between the cost of doing the work and the contract price, including the freight to Monroe and return, and demurrage, if any, paid or incurred, and that there was no evidence what the difference would be and therefore no basis for a decree in favor of petitioner.”

He also found that there was evidence that the plaintiff had rescinded the contract by ordering the goods back to Cleveland, and treating them as its own property, and offering them for sale, and that both parties regarded the contract as rescinded. The petition filed in the Federal court alleged the contract, petitioner’s compliance with its terms, the refusal of the defendant and its receiver to permit petitioner to erect the building contracted, the return by defendant and its receiver of the iron at petitioner’s expense, and an admission of its liability for the value of the materials and the freight paid, and prayed that it he allowed to intervene and present its claim and for other relief. Thereupon a general order for the presentation and hearing of claims was made. Plaintiff then filed its claim in an affidavit, stating that it was owner of a certain account, a copy being attached, amounting to $1,457.08, with interest; that there were no set-offs or counterclaims, and that if held no security therefor; that it was a valid claim, and had been admitted to be such by the receiver. The following statement of account was attached:

Cleveland, O., February 3, 1902.
Allen F. Edwards, Receiver,
Detroit & Toledo Shore Line R. R. Co.,
Detroit, Mich.
Bought of the Forest City Steel and Iron Co.
To steel Roof Trusses and Purlins, per contract dated
11-29-01_______ $1,440 00
To freight on same, Cleveland to Monroe, Mich........ 40 04
To freight on same, Monroe, Mich., to Cleveland...... 40 04
To labor, unloading same at Cleveland, 30 hours at 40 cents............... ............................... 12 00
Cr.
By value of material returned______
$1,532 08 75 00
$1,457 08

Under strict rules of pleading, it might be said that plaintiff’s account filed in the Federal court did not allege a claim for damages based on refusal to perform a contract, but was more in the nature of a claim for the purchase price of goods sold and delivered. The court declined to sustain the plaintiff’s claim upon the ground that it had never delivered the material, and therefore had not become entitled to the contract price. That was a complete answer to such a claim. So far the finding was not inconsistent with plaintiff’s present claim. The court further found that the utmost that could be allowed the petitioner would be damages for a breach of contract, and that they could not be allowed for two reasons: (1) It had omitted to make proof of their amount; and (2) the parties by mutual consent had rescinded the contract by reason of the insolvency of the company. This last finding of fact was adverse to the plaintiff’s present claim, and, unless we can say that it was unnecessary to a decision of the question before that court, it must be conclusive in this case. So, too, if the question before him involved the allowance of damages for a breach of the contract, plaintiff must be concluded here, for it could not be allowed a second trial of the question merely because of a want of proof upon the first. We have, therefore, to determine what was before the Federal court, if we can. Plainly there is nothing upon the face of the claim itself filed indicative of a nonacceptance of the goods and damage therefor. But nonacceptance of the goods by defendant and plaintiff’s knowledge of defendant’s insolvency are indicated by one of plaintiff’s three petitions, and the facts stated in the opinion filed indicate that full proof was made of the circumstances, and that the court did consider and decide the question of giving damage for breach of com tract and denied such claim for two reasons, viz., those already stated.

Unless the court can be said to have gone beyond his jurisdiction in considering the matter of damages for refusal to accept the goods, we cannot say that the decision of those questions was not essential, for each was conclusive of plaintiff’s right to recover damages in the view of that court, and, each being decided against plaintiff, it would be concluded elsewhere. Damages for breach of contract are legitimate claims against an insolvent’s estate. Lothrop v. Reed, 18 Allen (Mass.), 294. Under bankruptcy law they may be proved. See Loveland on Bankruptcy (3d Ed.), p. 337, and following cases there cited: In re Hirschman, 104 Fed. 69; In re Pettingill & Co., 137 Fed. 143. See remarks of Peckham, J., in Dunbar v. Dunbar, 190 U. S. 350. See, also, In re Stern, 116 Fed. 604, 54 C. C. A. 60, where it is held that claims for damages for breach of contract are provable claims. In any event, it is obvious that the court was in possession of defendant’s estate, charged with the duty of allowing claims. This plaintiff’s claim was filed and heard. The judge passed upon the claim for goods sold and delivered, and denied it as not proved; there being no delivery. He then dealt with the question of damages for nonperformance, and denied those. The proceeding was in equity, and, having treated the statement of claim as sufficient to admit proof of the refusal to perform and heard proof which supported it, the judge evidently treated that view of the case as a subject for decision. If he erred, the remedy was in a direct proceeding. We cannot say that he was without jurisdiction, and we cannot be asked to inquire whether the pleading, if called such, justified his inquiry. A similar question arose in Kellogg v. Thompson’s Estate, 115 Mich. 621, where it was held that the inadequacy of pleadings in the former suit was not an answer to the claim-of “former adjudication.” See, also, Reid, Murdoch & Co. v. Parks, 122 Mich. 364.

Being constrained to hold that the present claim was one provable before the Federal court, that proof was made tending to prove it, and the question considered and decided, we have no alternative but to reverse the judgment. A new trial is ordered.

Blair, Montgomery, Ostrander, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    De CONICK v. De CONICK.
    1. Wills — Estates Created — Conditions—Precedent or Subsequent.
    There are no technical appropriate words which always determine whether a devise be on a condition precedent or subsequent, the question being always one of intention. If the language used shows that the act on which the estate depends must be performed before the estate can vest, the condition is, of course, precedent, and, unless it be performed the devisee can take nothing, but if the act does not necessarily precede the vesting of the estate, but may accompany or follow it, the condition is subsequent.
    2.'Deeds — Estates Created — Conditions—Precedent or Subsequent —Construction.
    In construing a 'deed to determine whether the conditions therein are precedent or subsequent, the court avails itself of the light afforded by surrounding circumstances.
    3. Same — Condition Subsequent.
    Where decedent executed a deed of certain lands to her son, conveying to him on condition that he provide her niece with a home and suitable support in his family, in default of which the estate was to revert to the grantor and her heirs, and left the conveyance with counsel who drew it to be delivered on her death, keeping it otherwise secret, the condition was subsequent and not precedent, and the grantee was not obliged to furnish the support to the niece until after the grantor’s death.
    4. Same — Construction—Propriety.
    A condition in a deed by which the grantor intended to provide a life support for a niece, whom she acknowledged herself to be legally and morally bound to support, will not be construed to create a condition precedent rather than subsequent, if the latter construction is consistent with a lawful and reasonable construction of the language used, and the former would invalidate the instrument and defeat the purpose for which the estate was created.
    Appeal from Wayne; Donovan, J.
    Submitted June 18, 1908.
    (Docket No. 54.)
    Decided September 10, 1908.

      Bill by John De Conick against Edward De Conick and others to set aside a deed. From a decree for complainant, defendants appeal.
    Reversed, and bill dismissed.

      M. F. Lillis and O-eer, Williams, Martin & Butler, for complainant.

      Perry & Lynch (John O. Donnelly, of counsel), for defendants.
   Hooker, J.

The complainant and defendant Edward De Conick are sons of Johanna De Conick, deceased. Jennie is the wife of Edward De Conick, while Mary Nagle is a niece of Johanna De Conick, who has lived in the families of Johanna and Edward nearly all of the time since she was 11 or 12 years of age. Johanna De Conick was the owner of two parcels of land, one an 80-acre parcel, a part of the homestead, the other a 20-acre parcel, in or near Detroit. Edward De Conick has always lived with his mother, and, since John left home at the age of 23, has worked the farm. On May 28, 1894, Johanna causedher counsel todrafttwo deeds, one to John of six acres of the 20-acre parcel, the other to Edward of the 80-acre parcel and the remainder of the 20-acre lot. She did not then execute these deeds, but took them away with her. The deeds were warranty deeds, and we state the material portions, which were the same in both:

“For and in consideration of the sum of one dollar, love and affection and the performance of the conditions hereinafter set forth to him in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, has granted, bargained, sold, remised, aliened and confirmed, and by these presents does grant, sell, remise, release, alien and confirm unto the said party of the second part, and to his heirs and assigns, forever. * * * Provided always and this conveyance and the estate in said premises hereby created is subject to the express conditions following, viz.: (1) That the said party of the second part, his heirs and assigns, shall at all times faithfully provide and supply Mary Nagle, niece of first party, and for whom first party is under legal and moral obligations to provide, with a comfortable home and. a suitable support and maintenance in and with the family of second party and his heirs. (2) That said second, party shall within three years after the death of the said first party pay said Mary Nagle the sum of three hundred (300) dollars ($300.00). In case the grantee (second party), his heirs and assigns, shall fail, neglect, or refuse to well and faithfully fulfill and comply with and perform the said conditions as above set forth, then the entire title and estate in and to the said described premises hereby created shall cease, and the title to the said premises shall thereupon at once revert to and vest in the said party of the first part, her heirs and assigns forever, and it shall then be lawful for the said party of the first part, her heirs or assigns, to enter upon the said premises, and said party of the second part, his heirs and assigns, and every person claiming under him or them, wholly to remove, expel, and put out. * * * And the said party of the first part, for his heirs, executors, and administrators, does covenant, grant, bargain, and agree to and with the said, party of the second part, his heirs, and assigns, that at the time of the ensealing and delivery of these presents she is well seised of the premises above described as of a good, sure, perfect, absolute, and indefeasible estate of inheritance in the law in fee simple; and that the said lands are free from all incumbrances whatever and that the above-bargained premises in the quiet and peaceable possession of the said party the second part, his heirs and assigns against all and every person or persons lawfully claiming, or to claim, the whole or any part thereof, she will forever warrant and defend, on the performance by second party, his heirs and assigns, the conditions hereinbefore set forth.”

She desired to execute and leave these deeds with her counsel, but he advised against it, telling her that, if she should do so, she would lose all control over them, and could not recall them. He also advised against the course taken, upon the ground that she might be unable to execute them when the emergency should arise that should make it necessary to carry out her intentions, which she said were to give John the six acres, Edward the remainder, and to secure to Mary Nagle a sum of money and her support during Edward’s lifetime. She insisted, however, and took them away with her. Counsel next saw the deeds on April 21, 1902, when she brought them in and expressed an intention of executing them. She did so, and stated to counsel that she wished him to keep them, and deliver them to John and Edward, respectively, after her death. On January 20, 1905, counsel was called to draw a will for her. In that will she disposed of some personal property that she had. She died soon after, and the deeds were delivered by counsel, in accordance with the directions theretofore given by her. The bill was filed by John as an heir to set aside the deed to Edward on the grounds that the grantor was at the time of its execution mentally incompetent, that its execution was procured by undue influence, and that there was no valid delivery of the deed during her lifetime. Upon a hearing on pleadings and proofs, a decree was made in favor of the complainant in accordance with the prayer of the bill, and defendants have appealed.

Counsel seem to agree that there is but one question in the case, viz.: Did the title to the property vest in the respective grantees at the time of the delivery of the deeds to Mr. Lynch, and that this depends upon the nature of the conditions, i. e., whether precedent or subsequent? Both recognize the rule that the latter is a question of the intention of the grantor. Everything indicates that Mrs. Johanna De Conick informed no one of what she had done. It first came to the knowledge of the grantees after her death. She and Edward, his wife, and Mary Nagle continued up to.the time of her death to live as one family. Counsel for complainant insists that, to comply with the conditions of this deed, required Edward to support Mary Nagle during the remainder of his mother’s life, and to pay her $300 within three years after her death, that these constituted almost the entire consideration for the deed and were mentioned as part of the consideration, which, he says, creates the presumption that the condition is precedent; citing Markham v. Hufford, 123 Mich. 508 (48 L. R. A. 580). It is not necessary to go further than the next sentence after the language relied on of the case cited to show that such is not a necessary conclusion, where the opinion of Chief Justice Marshall in Finley v. King’s Lessee, 3 Pet. (U. S.) 346, is quoted approvingly as follows:

“ ‘ It is certainly well settled that there are no technical appropriate words which always determine whether a devise be on a condition precedent or subsequent. The same words have been determined differently, and the question is always a question of intention. If the language of the particular clause or of the whole will shows that the act on which the estate depends must be performed before the estate can vest, the condition is, of course, precedent, and, unless it be performed the devisee can take nothing. If, on the contrary, the act does not necessarily precede the vesting of the estate, but may accompany or follow it — if this is to be collected from the whole will — the condition is subsequent.’ ”

We have often recognized the doctrine, and understand that it is not questioned, as a general rule, but that counsel claim that the circumstances of this case should be held to show an intent to create a condition precedent. We may properly avail ourselves of the light afforded by surrounding circumstances in interpreting the words used. Leonard v. Leonard, 145 Mich. 566. If we do this, we think it impossible to treat these as conditions precedent.. We must conclude from her secrecy that Johanna did not intend that her sons should know what she had done during her life. As in all other such cases, she apparently intended that no change should occur in the possession until her death. Manifestly she could not have intended that Edward would perform a condition during her life that she intended to keep from him. Moreover, it would be unreasonable to conclude that Edward’s obligation to care for Mary Nagle after the death of Johanna and at all times, even up to her death, was intended to be a condition precedent. We think the more reasonable conclusion is that she expected family relations to continue as they were at the time, and, as they did continue, that the conditions should not be considered as precedent, but that title' should pass subject to forfeiture, in which case it should “revert and revest” as expressly provided in the deed. Any other construction will invalidate the instrument and deprive Mary Nagle of any benefit of her aunt’s intended bounty, a thing to be avoided if it can be found consistent with a lawful and reasonable construction of her language.

In this connection we call attention to the language used in Taft v. Taft, 59 Mich. 193:

“ It was said in Foster v. Mansfield, 3 Metc. (Mass.) 412, that where a deed is deposited with a third person, and ‘ the future delivery is to depend upon the payment of money, or the performance of some other condition, it will be deemed an escrow. Where it is merely to await the lapse of time, or the happening of some contingency, and not the performance of any condition, it will be deemed the grantor’s deed presently. Still it will not take effect as a deed until the second delivery; but, when thus delivered, it will take effect by relation, from the first delivery.’”

This delivery by Lynch was subject to no condition. It was to he made on the happening of the inevitable event of Johanna’s death. Is not this an additional circumstance showing that support of Mary Nagle before Johanna’s death was not part of the condition, and that her support afterwards was not intended to be a condition precedent ?

The decree is reversed, and the bill dismissed, with costs of both courts.

Blair, Montgomery, Ostrander, and Moore, JJ., concurred.


author: McAlvay, J.

text:
    AMERICAN HEALTH & ACCIDENT INSURANCE CO. v. COMMISSIONER OF INSURANCE.
    Insurance — Commissioner — License — Refusal — Mandamus — When Issued.
    Mandamus will not issue to compel the commissioner of insurance to renew the license of an insurance company to do business in this State where the relator fails to show specifically that it has. complied with the law entitling it to a certificate of authority to do business, and that its business in all material respects has been conducted according to the provisions of the statute under which it is organized.
    Mandamus by the American Health & Accident Insurance Company to compel James V. Barry, commissioner of insurance, to renew relator’s license to do business in this State.
    Submitted June 27, 1908.
    (Calendar No. 22,894.)
    Writ denied September 10, 1908.

      Abbott & Abbott, for relator.

      John E. Bird, Attorney General, Henry E. Chase, Deputy Attorney General, and Arthur P. Hicks, Assistant Attorney General, for respondent.
   McAlvay, J.

This is an application for a writ of mandamus to compel respondent insurance commissioner to renew the license of relator company to do business in this State. Relator is a Michigan corporation organized under the laws of this State on January 25, 1898, under the corporate name of the American Benefit Association. By amendment to its articles of association on or about July 15, 1901, its corporate name was changed to the American Health & Accident Insurance Company. Relator was organized under the provisions of Act No. 187, Pub. Acts 1887, and its principal office and place of business is located in the city of Detroit, Wayne county, Mich. Relator, after its organization, was granted by the insurance commissioner of this State a certificate of authority to do business as provided by law. Such certificate afterwards from year to year was issued annually until the year 1908. By requirement by law, relator’s duty was to file its annual report each year with the department of insurance. This requirement was understood and complied with by relator from the year of its organization. The reports must be filed within 60 days after the 31st day of December of the year for which the report is required. Such report was not filed for the year ending December 31, 1907. The foregoing facts appear from relator’s petition.

The answer of respondent shows that the attention of relator was called by letter on April 21, 1908, to its neglect to file its annual report; that during said month of April relator’s attention was also called to this fact by telephone ; that no answer having been made to said letter, or excuse given for the failure to file said annual report, on April 28th the case was reported to the attorney general, and on May 1st proceedings were instituted by him in the Wayne circuit court, in chancery, by information, praying for a receiver to be appointed to wind up the affairs of relator as provided by law. These proceedings are still pending. On May 12th the annual report for 1907 was filed by relator. The delay in filing is excused by the statement that “it was owing to inadvertence.” In addition to the matters above stated, respondent’s answer shows that he caused an official examination of relator’s books and accounts to be . made as provided by law, and attaches the report of such examination as an exhibit; that relator failed to make an annual statement of its transactions and financial condition for the year 1906 at the annual meeting of its members, and failed to mail a copy of such annual statement, together with a certificate or policy account, to its members within 30 days after filing its annual statement, as required by law; that it did not keep its books, papers, etc., at its principal office in Detroit; that it did not after January 1, 1907, carry out its contracts with its members in good faith; that during that period the president and general manager, George F. C. Eyre, without authority, appropriated exorbitant sums of relator’s money for salary and services. The case is before us on petition, answer, and replication. The foregoing facts stated are an abstract of the material facts contained in the record.

There is no charge in the petition that respondent has been guilty of any abuse of discretion in withholding the certificate demanded, and we find that no such abuse appears from the record. The burden in this application is upon the relator to show specifically that it has complied with the law entitling it to a certificate of authority to do business, and, further, that its business in all material respects has been conducted according to the provisions of the statute under which it is organized. Citizens’ Life-Ins. Co. v. Commissioner of Insurance, 128 Mich. 85. Relator has admitted in its petition that it has failed in the first requirement, and gives no satisfactory reason for such failure; and in the second the allegations of the answer, which are to be taken as true, show that its business has not been lawfully conducted. It is urged by relator that the Wayne circuit court refused to appoint a receiver. That is but a part statement of the fact. The court, after hearing proofs on the application of the attorney general, withheld an appointment until the respondent had an opportunity to pass upon the matter, and exercise his discretion. Pending this application to this court, the case before the Wayne circuit court is held in abeyance.

The writ of mandamus is denied.

Grant, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.


text:
    A’HERN v. LIPSETT.
    Sales — Conditional Sales — Payment of Consideration — Interest — Waiver—Title to Goods.
    Where defendant sold plaintifE certain furniture for a consideration payable, with interest, in installments, reserving title until paid for, and plaintiff made payments from time to time, aggregating an amount equal to the principal, to defendant’s agents, who made no claim for interest, and such agents rendered statements in which no claim for interest was made, but no authority to the agents was shown to waive interest, and there was no consideration for such waiver, the consideration was not wholly paid until the interest was paid, and defendant was the owner of the property and entitled to take possession of it.
    Error to Chippewa; Steere, J.
    Submitted June 27, 1908.
    (Docket No. 108.)
    Decided September 10, 1908.
    Replevin by Charles P. A’Hern against William P. Lipsett. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      F. T. McDonald, for appellant.

      George B. Holden, for appellee.
   Hooker, J.

The learned circuit judge directed a verdict for the defendant in this cause, and plaintiff has appealed.

The action is replevin for some bar fixtures which defendant furnished to the plaintiff several years ago under a contract of sale; title being reserved. Defendant took possession of them for alleged nonpayment. It is admitted that the price to be paid according to the contract was $485, and interest at 8 per cent., in weekly payments of $10, and that $485 was paid, the first payment being made November 7, 1898, the last on November 27, 1905. It is admitted that an amount equaling all accrued interest has not been paid. These payments were made to the local agents of the defendant (or to their bookkeeper, or driver of their beer wagon), and by them sent to the defendant’s home office, and there indorsed on the contract. During this period defendant was furnishing plaintiff with beer through its local agents at Sault Ste. Marie. The plaintiff had a book in which the beer account and an account of the payments on thé contract were kept on separate pages in defendant’s agent’s handwriting — a sort of passbook we infer — and this account1 showed some balances struck after payments, the last being: “Bal. 1905 —$45.” Below this were nine $5 entries; the last two being November 37th. The plaintiff claims that the entire dealings with these agents warrant the inference that they made no claim for interest, and that this is corroborated by the account with its balances, kept on the book.

The contract bound plaintiff to pay interest. He has never done so. There is nothing in the case to warrant the inference that these agents had any authority to waive the payment of interest, or that defendant had any knowledge or suspicion that they were attempting to do so. It is admitted that there was no consideration for such waiver. The plaintiff knew that defendant claimed a balance due on the contract in the summer of 1906. The fixtures were not taken by defendant until the spring of 1907. He had, therefore, an opportunity to protect himself by payment. Under the undisputed facts the defendant’s possession was láwful.

The judgment is affirmed.

Grant, C. J., and Blair, Moore, and McAlvay, JJ., concurred.


author: Moore, J.

text:
    ADAMS v. HARRINGTON HOTEL CO.
    Statute of Frauds — Contract Not to be Performed Within One Year — Validity—Mutuality.
    A contract in writing by the terms of which plaintiff was to furnish, and defendant to exhibit, in its hotel, an advertising cabinet, for the term of six years, plaintiff to change the cabinet every two years, was a contract which by its terms was not to be performed within one year, and, not being signed by plaintiff, was void as to him, and hence unenforceable by him, as lacking mutuality. Section 9515, 3 Comp. Laws.
    Error to St. Clair; Tappan, J.
    Submitted July 1, 1908.
    (Docket No. 123.)
    Decided September 10, 1908.
    Assumpsit by John Q. Adams against the Harrington Hotel Company on a contract for certain advertising. There was judgment for defendant, and plaintiff brings error.
    Affirmed.

      Avery & Walsh, for appellant.

      Phillips & Jenks, for appellee.
   Moore, J.

This case was tried before the circuit judge without a jury. At the request of the plaintiff the judge made findings of fact and law. The court rendered judgment for defendant. Exceptions were taken to his findings. The case is brought here by writ of error. The facts are not in dispute. The defendant delivered to the plaintiff a paper reading as follows :

“Port Huron, 6-16, 1903.
“ In consideration of the Adams Advertising Agency of Omaha, Neb., supplying us with one of their ink well and stationery counter cabinets, like photo, of Los Angeles Mexican onyx & silver, holding elc. light, free of charge, we agree to place same upon our office counter and make it a permanent fixture thereon for a term of two years. We agree to keep said cabinet in good order, and refer our guests seeking purchases or professional services to the cards thereon whenever opportunity affords. This contract is made for a term of six.years, with a change of cabinet each two years.
“A. C. Stuart, Manager,
“Harrington Hotel.”

This paper was not signed by plaintiff, nor did he sign any other paper relating thereto. He solicited advertisements from the business men at Port Huron which he expected to place in the cabinet, for which they were to pay him $318. The cabinet was shipped to the defendant, who notified plaintiff that it would not be received and was subject to his order, and it was returned to plaintiff. Plaintiff claims he is entitled to a judgment for $318, the amount he would have received for the advertisements.

The court found that the cabinet was suitable in workmanship and in material, and was in full performance of the requirements of the agreement, but held that the agreement was unilateral, and the plaintiff was not bound by its terms. Counsel for appellant insist:

“A promise upon a condition to be performed by the other party is a valid contract when the condition is performed. It is then clothed with a valid consideration which relates back to the promise, and it then becomes valid as an express promise. People v. Taylor, 2 Mich. 254.
“‘Want of mutuality in the inception of the contract may toe remedied by the subsequent conduct of the parties, or by the execution of the agreement.’ 7 Am. & Eng. Enc. Law (2d Ed.), p. 115.
“‘ It is now generally held that if a proposition be made, to be accepted within a given time, it constitutes a continuing offer, which, however, may be retracted at any time. But if, at any time before it is retracted, it is accepted, such offer and acceptance constitute a valid contract.’ Cooper v. Lansing Wheel Co., 94 Mich. 272.
“See, also, Miller v. Smith, 140 Mich. 524; Orr v. Kenny, 150 Mich. 159.
“Where the vendee accepts the proposal and pays money on it, the element of mutuality is supplied and the contract is binding. Mull v. Smith, 132 Mich. 618. In onr case the expenditure of money on the cabinet and sending it to defendant supplies the element of mutuality.”

One trouble with this contention is that it overlooks some of the conditions stated in the paper signed by the defendant. It is stated therein that the cabinet shall be placed upon the office counter and made a permanent fixture thereon for two years. It is also stated therein “ this contract is made for a term of six years, with a change of cabinet each two years.” It is apparent that the contract, if it is to be regarded as a contract, cannot by its terms be completed in one year. It is also evident that the change of cabinet each two years must be made by plaintiff, and yet he has signed no agreement to make said change. It is clear, we think, that the contract is void under the provisions of section 9515, 3 Comp. Laws, because the agreement which is to be performed by the plaintiff cannot be performed in one year from the making of the agreement. See Wilkinson v. Heavenrich, 58 Mich. 574, where there is a full discussion of the principle involved. See, also, Davis v. Insurance Co., 127 Mich. 559; Co-operative Telephone Co. v. Katus, 140 Mich. 367; McIlroy v. Richards, 148 Mich. 694.

Judgment is affirmed.

Grant, C. J., and Montgomery, Ostrander, and * Hooker, JJ., concurred.


author: Montgomery, J.

text:
    McNAMARA v. KENT PROBATE JUDGE.
    Appeal and Error — Appeal prom Probate Court — Bond—Approval — Necessity Before Filing.
    Under sections 669, 670, 1 Comp. Laws, providing for appeals from probate court, the bond on appeal must be approved before filing, and must be filed with the notice or claim of appeal.
    Mandamus by James McNamara to compel Harry D. Jewell, probate judge of Kent county, to approve an appeal bond.
    Submitted July 7, 1908.
    (Calendar No. 22,931.)
    Writ denied September 10, 1908.

      Black, Beasoner & Hayden, for relator.

      Thomas P. Bradfield (Kleinhans & Knappen, of counsel), for respondent.
   Montgomery, J.

On the 10th of April, 1908, an order was entered in the probate court for the county of Kent in the matter of the estate of Mary McNamara, deceased, licensing the Michigan Trust Company, as administrator of said estate, to sell a certain parcel of real estate owned by the deceased in her lifetime. On the 9th of June, 1908, the petitioner appeared in the probate office, the judge not being present; he having at some time on that day left the county, of Kent. The petitioner thereupon filed a claim of appeal and a bond in the penalty of $200. The bond was not approved by the judge of probate, nor by either of the circuit judges, who might have acted in the absence of the judge of probate. Subsequently, upon the bond being brought to the attention of the probate judge, he fixed a date for hearing the parties, and, upon that hearing, determined that he had not the power to approve the bond after the lapse of the 60 days’ time provided by statute for the appeal. Mandamus is now sought to compel him to approve the bond filed as hereinbefore stated.

The question is controlled by sections 669, 670, 1 Comp. Laws, which read as follows:

“(669) Sec. 25. In all cases not otherwise provided for, any person aggrieved by any order, sentence, decree or denial of a judge of probate, may appeal therefrom to the circuit court for the same county, by filing a notice thereof with the judge of probate within sixty days from the date of the act appealed from, with his reasons for such appeal, together with such bond as is required in the next section.
“ (670) Sec. 26. The party appealing shall, at the time of filing notice thereof, file with the judge of probate a bond to the adverse party, in such penalty, with such surety or sureties as the judge of probate shall approve, conditioned for the diligent prosecution of such appeal, and the payment of all such damages and costs as shall be awarded against him, in case he shall fail to obtain a reversal of the decision so appealed from.”

It is contended by the relator that it is not required that the bond shall be approved before it is filed with the probate judge, but that it may be filed and approved at some later date. Clearly there is no express provision of the statute that the bond may be approved at a later time, and, unless the bond is required to be approved when filed, there is no legislative provision regulating in any manner the time of its approval. We think the language of the statute is as olearas is the statute — sections 9387 and 9395, 3 Comp. Laws — construed in Bartlett v. Wayne Circuit Judge, 133 Mich. 604. Section 669 requires, not only that the claim of appeal shall be filed within 60 days, but that it shall be filed together with such bond as is required in the next section. The next section then provides that the party appealing shall, at the time of filing notice thereof, file with the judge of probate a bond to the adverse party in such penalty and with such sureties as the judge of probate shall approve, etc. Unless the bond is at that time approved, both as to its sureties and as to its penalty, it cannot he filed at the time of filing the notice as an approved bond. The language is not ambiguous. The relator has failed to comply with the terms of the statute.

The mandamus is denied.

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


text:
    WALDRON v. MERRILL.
    1. Trusts —Resulting Trusts — Payment of Consideration — Effect.
    Under section 8835, 3 Comp. Laws, the fact that complainant furnished the consideration for his divorced wife joining with him in a convoyance of land to defendant does not entitle him to a decree against defendant establishing his title to the land.
    3. Same — Parol Trust in Land — Validity.
    Under section 9509, 3 Comp. Laws, no equitable title to land arises from a .parol agreement by defendant to reconvey to complainant a parcel of land conveyed to defendant by complainant and his divorced wife in settlement of their property rights.
    Appeal from ■ Muskegon; Davis, J., presiding.
    Submitted February 24, 1908.
    (Docket No. 104.)
    Decided September 15, 1908.
    Bill by Leonard A. Waldron against Esther E. Merrill to establish a title in certain real estate, and for an accounting. • From a decree for complainant, defendant appeals.
    Reversed, and bill dismissed.

      F. W. Cook and Chamberlain & Walker, for complainant.

      Cross, Lovelace & Boss, for defendant.
   McAlvay, J.

The bill of complaint in this case was filed in the Muskegon circuit court, in chancery, to establish complainant’s title to a business lot and building in the city of Muskegon, to compel a conveyance of said property to complainant by defendant, in whose name title stands, and for an accounting between the parties for rents and profits of this property, and certain money transactions between them. There was but little dispute between the parties upon the principal facts in the case. The court granted complainant the relief asked, confirming the report of a commissioner, to whom had been referred the matter of the accounting, and finding that complainant was indebted to defendant in the sum of $132.1?, which was secured by a certain mortgage. Defendant asks a reversal of this decree.

(1) That complainant is seeking to declare and allege a parol trust void under the statute of frauds.

(2) That the deed to defendant cannot be construed as a mortgage.

(3) That complainant does not come into court with clean hands.

Complainant and defendant are brother and sister. The property in question was first acquired by him many years ago. By the foreclosure of a mortgage he lost his title. He afterwards repurchased it. It is worth about $3,000. He placed the title in defendant where it remained several years. She had assisted him with money, and, among other reasons, the title was in her to secure her for bona fide loans of money. When she first acquired title to this property, defendant gave Cordelia Waldron, who was then complainant’s wife, a land contract therefor, for the amount she (defendant) had paid for it, and agreed to convey title and receive a mortgage for the balance when one-half of said amount was paid. On account of trouble between complainant and his wife, it is claimed that the parties to this suit made an arrangement whereby this contract was declared forfeited on account of default instipulated payments, and thereupon these parties finally adjusted their relations to this property. Defendant at that time, upon payment by complainant to her of $809 — which, with money of her own, went to the discharge of a mortgage given on this property by her at the time she first obtained title for his benefit — on June 2, 1897, conveyed the title to him, taking back a mortgage for $1,000. This mortgage is conceded to have been in part fictitious. She claims it was to secure*an actual indebtedness of $400, and complainant that he owed her but $326.25. Defendant admits that from this date until May 24, 1905, she was in possession of this property as complainant’s agent, and, but for the fact that complainant does not come into court with clean hands, he would be entitled to an accounting for that period of time.

In February, 1903, complainant’s wife obtained a pro confesso decree of divorce from him on service by publication, which decree gave a lien to her upon this property for alimony. Complainant, on defendant’s recommendation, consulted her attorney, and upon his advice the parties agreed that the title to this property should be deeded by complainant and Cordelia Waldron to a third person, who was to be this defendant, and by her to be reconveyed to complainant. This deed was executed May 2, 1905, and sent to complainant’s counsel for delivery and record, and was by him duly recorded May 24, 1905, complainant having settled with his wife for $100, which she testifies was entirely satisfactory. Defendant refuses to reconvey in accordance with this agreement. Suit was brought with the result given above. The record does not support the claim of defendant that the conveyance from Cordelia Waldron was obtained by fraud. Her testimony fully disposes of any such claim. She united in the deed with complainant for a consideration, freely and with knowledge of the arrangement between the parties to this suit that defendant would reconvey to complainant. Was this agreement to reconvey such a one as will be enforced in á court of equity ? This we consider to be the only serious question in the case. The bill was not filed, nor was relief prayed, upon the theory that the deed to defendant should be construed as a mortgage; and the other proposition, that defendant does not come into court with clean hands, fails in the light of the testimony of Cordelia Waldron. If complainant is entitled to. a decree, he must base his right upon one of the following claims: (1) That he furnished the consideration for the grant from his former wife to defendant; (3) that the parol agreement between himself and defendant gave him an interest in land which he can enforce in equity. Neither of these claims is tenable. The first is prohibited by section 8835, 3 Comp. Laws, which reads:

“When a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made; but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section.”

, The second is prohibited by section 9509,3 Comp. Laws, which reads:

“No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by some person thereunto by him lawfully authorized by writing.”

To say that a resulting trust arose by this parol agreement is to simply adopt an indirect method of doing precisely what the statute forbids. As a matter of law, therefore, complainant is not entitled to relief.

The decree of the circuit court is reversed, and the bill dismissed, with costs of both courts. -

Grant, C. J., and Hooker, Moore, and Carpenter, JJ., concurred.


author: Grant, C. J. Carpenter, J. Grant, C. J.

text:
    GODKIN v. WEBER.
    Contracts — Offer and Acceptance— Letters— Construction.
    Letters containing an offer and acceptance cannot be construed together to form a completed contract where it is apparent from reading them that the letter containing the acceptance is not an answer to the one containing the offer, but is an answer to another letter not in the record.
    ON REHEARING.
    Statute of Frauds — Sale of Goods — Parol Contract —Acceptance of Goods — Necessity. •
    Where defendant, having possession of a quantity of lumber belonging to plaintiff, made him an oral offer for it through an agent of plaintiff, which, being communicated to plaintiff, he accepted, but defendant ■ thereafter performed no act which indicated his acceptance of the lumber, as required by section 9516, 3 Comp. Laws, there was no sale, notwithstanding defendant kept silence for five days before communicating to plaintiff his refusal to buy in accordance with his offer. Grant, C. J., and Blair and Moore, JJ., dissenting.
    Error to Wayne; Rohnert, J.
    Submitted November 12, 1907.
    (Docket No. 161.)
    Decided January 31, 1908.
    Rehearing granted May 27, 1908; former opinion modified September 15, 1908.
    Assumpsit by John Godkin against Joseph E. Weber for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Jasper O. Gates, for appellant.

      Lee E. Joslyn, for appellee.
    Plaintiff, a wholesale lumber dealer in Bay City, had a conversation over the telephone with the defendant, a retail lumber dealer in Detroit, on the evening of December 19, 1904, in regard to the purchase of certain lumber. That conversation is immaterial, as all prior conversations and orders were merged in the written contract afterwards made. On December 20th plaintiff wrote defendant stating what he understood the bargain to be, namely,— a sale of 130,000 feet of hemlock piece stuff [giving the dimensions], less what mill culls there may be among it, at the price of $13.50, delivered at Detroit, at the Gratiot avenue station of the Grand Trunk,— one-third to be shipped the present week, about one-third the following week, and the balance the third week; settlement to be made January 4, 1905, etc. To this defendant replied December 21st, saying that the plaintiff’s understanding of the agreement was correct, except that defendant was to pay for the lumber as soon as it is unloaded, which may not be before January 4th, if the railroads delay shipment. On December 22d, plaintiff replied by letter, saying that this was satisfactory. There is no ambiguity in this contract. It contemplated there would be some mill culls mixed with the lumber shipped, and that was to be deducted. Plaintiff shipped two cars December 30th, two January 4th, and one January 5th. These five cars involve all the lumber that is in dispute in this case.
    The first two cars reached Detroit on January 6th or 7th, the others not later than January 17th. The first two car loads were taken by the defendant to his yard January 7 th, and one was sorted after it was unloaded from the car. The others were not sorted.
    On January 7th, defendant paid plaintiff $500, and on January 28th, $200. No complaint was made as to the character of the lumber until January 21st, fourteen days after the first two cars were received, and four days after all had been received. On that day defendant wrote, stating that the lumber received ran about 35 per cent, to mill culls, that he had inspected one car showing this amount, and that the other cars ran about the same, and requesting plaintiff to advise what disposition he wished made of the culls. Defendant gave as a reason for not sooner notifying plaintiff of the character of the lumber that there was such a large amount of culls he thought he would be obliged to have some disinterested inspector put on it, and because he had paid $500, and feared that if there was going to be an objection to the lumber on his part plaintiff might stop it, and defendant might have some trouble in getting his $500 back.
    On the 23d plaintiff wrote defendant that he did not sell him any mill culls, asked to have them laid out so that he could have them examined, and that “if there are any mill culls I will not ask you to take them.” On January 24th defendant wrote plaintiff that he had laid out the culls from only one car, that the other cars were all piled in together, and that the plaintiff must take the inspection on one car as a basis for settlement on the entire shipment, or they must be inspected. Subsequently, under agreement, the lumber was sorted, and the mill culls, amounting to 29,392 feet, piled by themselves.
    On February 8th plaintiff went to Detroit and examined the culls. February 14th defendant wrote plaintiff acknowledging invoices for two cars. In that letter he wrote:
    “We suppose this is out of the same stock as the other five cars. If so, rather than have further disputes with you over any question of grading, we will refuse same unless you consent to our laying out culls and paying for same at $9.50 per M.”
    On February 16th, one Ward, plaintiff’s inspector, inspected the culls. He testified that defendant offered to take the culls at $9.50 per thousand, and that he communicated this to plaintiff on the same day. On the following day plaintiff wrote defendant saying:
    “As regards those mill culls, left in your yard, the inspector informed me that you will not pay any more than $9.50 per M. for them, which is one dollar under the price, but if that is the most you will pay, I can only say for you to take them, as I do not wish to have them eaten up in expenses looking after them. Hoping that you will forward your check on receipt of this,” etc.
    On February 22d, defendant again wrote plaintiff offering #9 per thousand. On the following day- plaintiff instituted this suit. Defendant with his plea interposed a notice of recoupment and set-off, consisting mainly of expenses in sorting and storing the lumber.
   Grant, C. J.

{after stating the facts). The sole controversy in this cases arises from the mill culls. Was there a valid sale of them ? is the only important question. The original contract excluded mill culls, but contemplated that some would be mixed with the lumber. Whatever were so shipped defendant had the right to throw out. Upon notification it would have been the duty of the plaintiff to take thém away. If the mill culls, as the court instructed the jury, were sufficient in quantity to justify the defendant in refusing to accept the lumber, it was his duty to promptly notify the plaintiff. He did not do so, and furnished no legal excuse for the delay. Rut, as the court instructed the jury, this became immaterial, except as it might affect certain expenses to which the defendant claims he was subjected, because it was subsequently agreed that the merchantable lumber contracted for should be separated from the culls, and that defendant was liable only for the merchantable lumber.

Plaintiff claims that a sale of the culls was afterwards made at $9.50 per thousand. This claim is based,— (1) upon defendant’s letter of February 14th, and plaintiff’s letter of the 17th. (2) Upon the proposition made by the defendant to Mr. Ward, the inspector, to pay $9.50 per thousand, by him communicated to .plaintiff, plaintiff’s letter of acceptance of February 17th, and defendant’s retention of the goods without notice until February 22d.

Counsel for defendant insists that his letter dated February 14th referred solely to the two cars mentioned therein, and did not include the culls piled in the defendant’s yard. Plaintiff’s counsel contends that it did include the culls in the yard, and that plaintiff’s letter of February 17th was an acceptance of the offer contained in the letter of the 14th. The court left it to the jury to determine whether the two letters included the culls in the yard as well as those upon the two cars, and were understood by the parties to be an offer on the part of defendant to purchase the entire lot, and an acceptance thereof by the plaintiff. In this we think the court erred. Defendant’s letter does not refer to the culls in the yard, but solely to the culls upon the two cars. The plaintiff’s letter makes no reference to the letter of the 14th, but appears to be in reply to a letter of the 16th. We must therefore hold that plaintiff’s letter of the 17th was not a reply to defendant’s letter of the 14th, and the letters do not constitute a contract. The court should have so instructed the jury.

The court also instructed the jury:

“If you find, however, that this letter of February 14th was not for the mill culls, but that he proposed, and that the proposition accepted by Mr. Godkin was the one that was made to Ward when in the yard, then it would be a completed contract for the sale of those mill culls to Mr. Weber by Mr. Godkin, unless Mr. Weber unreasonably delayed in notifying Mr. Godkin. It was his duty on receipt of the letter to immediately disclose to Mr. Godkin exactly what he, Mr. Weber, considered to be the status of the case; if he did not do it, he would be considered in law as having accepted Mr. Godkin’s offer as binding upon himself. ’

Defendant contends that this was error, and that the alleged oral sale is void under the statute of frauds (3 Comp. Laws, § 9516), because there was no delivery or acceptance within the meaning of the statute. The lumber was in the possession and under the control of the defendant. He had made an oral offer of purchase. The plaintiff wrote an acceptance of the offer. Any further ceremony as to the delivery would have been unnecessary and impracticable.

Mr. Mechem says:

‘ ‘ Where the goods, at the time of the contract of sale, are already in the possession of the purchaser, * * * the nature of the delivery and receipt which will satisfy the statute is necessarily different. It is not necessary that the parties should go through the idle ceremony of returning the property to the seller that he may make a new delivery to the buyer, who is then to receive it anew. * * * Whether the acts show a receipt of this nature is ordinarily a question of fact for the jury, though where the facts are not in dispute the court may determine it. ” 1 Mechem on Sales, § 389.

Where an oral agreement was made for the transfer of 20 hogs mingled with others, and the vendor and vendee went where the hogs were and pointed them out, and the vendor charged the vendee the purchase price on account, the hogs remaining together in the same pasture as before, in the possession and care of the vendor, it was held that there was a sufficient delivery to satisfy the statute of frauds. Webster v. Anderson, 42 Mich. 554.

The rule is thus laid down in 29 Am. & Eng. Enc. Law (2d Ed.), pp. 984, 985:

“A long and unreasonable delay in returning the goods to the seller after they have been delivered to the buyer constitutes strong evidence of acceptance, and it has been said that practically the question resolves itself into whether the buyer, within a reasonable time, has rejected the property; the question whether the buyer has failed to reject the goods within a reasonable time being one for the jury. * * *
“ Where goods are sold to a buyer who is already in possession of them, the question what constitutes the requisite acceptance and receipt of the goods is one with which the courts have had considerable difficulty and have not always been in harmony. Although the facts and circumstances of each particular case are to be considered, it may be stated as a general proposition that the buyer has little more to do, if anything, than to remain in possession and claim under the contract of sale. According to some authorities the law does not require that he should go through the idle ceremony of delivering up possession to the seller and then taking back possession under the contract of sale.” See authorities there cited.

Laymen of average common sense would not consider that it was necessary to go through some ceremony to constitute a delivery and acceptance under such circumstances. Suppose these parties had met, the defendant having the property in possession, and defendant had said to the plaintiff, “ I will pay you $9.50 per thousand,” and that plaintiff had replied, “I will take it,” and the parties had separated, would defendant five days after-wards be permitted to say that there was no delivery or acceptance ?

Where goods are delivered under a parol sale, void under the statute of frauds, it is held to be the duty of the purchaser to repudiate immediately. Spencer v. Hale, 30 Vt. 314.

Where logs had been sold and were repurchased, being in possession of the repurchaser, it was held that no written memorandum of resale was necessary. Couillard v. Johnson, 24 Wis. 533.

The court left it to the jury to determine whether the delay from February 17th to the 22d was unreasonable. In this connection it must be borne in mind that in the due course of mail a letter mailed in Detroit would reach the plaintiff in Bay City in a few hours, and that there were other speedier methods of communication.

The other assignments of error are unimportant.

For the error mentioned, the judgment is reversed, and new trial ordered.

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

ON REHEARING.

A detailed statement of the facts in this case will be found in the former opinion written by Chief Justice Gra'nt, ante, 207. The testimony, stating it most favorably to the plaintiff, may be briefly summarized as follows: On the 16th of February, 1905, there was in defendant’s possession mill culls belonging to plaintiff amounting to 22,957 feet. Defendant made a verbal offer to plaintiff’s agent to purchase these at $9.50 per M. This offer was communicated to plaintiff February 17th. On that day plaintiff wrote defendant, accepting the offer. Very soon thereafter defendant informed plaintiff’s agent that he would not purchase at that figure, and later, on the 22d of February, he wrote plaintiff offering to purchase at $9 per M. This last offer never was accepted. Did this evidence justify an inference of sale ?

Carpenter, J.

(after stating the facts). The important question in this case is this: Has there been a compliance with section 9516, 3 Comp. Laws ? That section reads:

“No contract for the sale of any goods, wares or merchandise, for the price of fifty dollars or more, shall be valid, unless the purchaser shall accept and receive part of the goods sold, or shall give something in earnest, to bind the bargain or in part payment, or unless some note or memorandum in writing of the bargain be made, and signed by the party to be charged thereby or by some person thereunto by him lawfully authorized.”

When this case was first determined by us, we decided that there was in writing nothing to indicate defendant’s assent to the sale. We adhere to that determination for the reason stated in our former opinion; that is, to be specific, we hold that defendant’s letter of February 14th, which it was claimed contained an offer for these culls, referred to other culls, and not to those in controversy. It is urged that the section was complied with because the goods were already in defendant’s possession. We assented to this view on the former hearing. In doing this I think we failed to note — at least, I failed to note— that the statute required acceptance as well as delivery. There is in this case no evidence of acceptance. And to hold that the statute was complied with is to disregard that portion of the statute requiring acceptance. In Duplex Safety Boiler Co. v. McGinness, 64 How. Prac. (N. Y.) 99, it is said (this is quoted from the headnote, but it is correct):

“In order to constitute a delivery and acceptance of goods, something more than words are necessary; and the fact that the goods are already in the defendant’s possession under a prior understanding does not amount to a delivery or acceptance. There must be some affirmative act of his to ta'ke the case out of the statute.”

This is supported by a long line of cases. See Dorsey v. Pike, 50 Hun (N. Y.), 584; Follett Wool Co. v. Deposit Co., 84 App. Div. (N. Y.) 151; Hinchman v. Lincoln, 124 U. S. 88; J. H. Silkman Lumber Co. v. Hunholz, 132 Wis. 610 (11 L. R. A. [N. S.] 1186); Lillywhite v. Devereux, 15 M. & W. 285; Proctor v. Jones, 2 C. & P. 532; Taylor v. Wakefield, 6 El. & Bl. 765.

It is contended that Webster v. Anderson, 42 Mich. 554, Couillard v. Johnson, 24 Wis. 533, 1 Mechem on Sales, § 389, and 29 Am. & Eng. Enc. Law (2d Ed.), p. 985, are opposed to this view of the law. We think otherwise. In Webster v. Anderson and Couillard v. Johnson there was no question about an acceptance. The question of delivery alone was in doubt, and therefore these authorities have no application. It is not to be inferred from 1 Mechem on Sales, § 389, or 29 Am. & Eng. Enc. Law (2d Ed.), p. 985, that evidence of acceptance is unnecessary where the goods are in possession of the purchaser. I quote from Mr. Mechem as follows:

“‘If it appears,’ said the court in a leading case upon the subject, ‘ that the conduct of a defendant in dealing with goods already in his possession is wholly inconsistent with the supposition that his former possession continues unchanged, he may properly be said to have accepted and actually received such goods under a contract, so as to take the case out of the operation of the statute of frauds.’ Lillywhite v. Devereux,” supra.

It is said in 29 Am. & Eng. Enc. Law:

“It may be stated as a general proposition that the buyer has little more to do, if anything, than to remain in possession and claim under the contract of sale.”

The necessity of an acceptance is here sufficiently indicated.

It is urged that because defendant, after receiving plaintiff’s letter of February 17th, delayed replying until February 22d, an inference of acceptance may. thereby be drawn. In other words, it is argued that defendant was bound by the void parol contract because he did not repudiate it. This is only an indirect method of evading the statute, and it forces upon defendant the obligations of a contract contrary to the provisions of the statute. It should also be said that the record does not sustain the claim that defendant delayed until February 22d in notifying the plaintiff that he refused to accept the culls in accordance with the terms of the letter of February 17th; for it is shown by a letter of plaintiff’s written February 21st that prior to that time defendant had informed plaintiff’s agent that he would not purchase the culls on those terms. Out of the mill culls rejected by defendant, plaintiff’s agent Ward cut out 5,424 feet of merchantable lumber, which defendant accepted and paid for as such. Plaintiff insists that this was an acceptance of the mill culls. We do not think this argument sound. This 5,424 feet was accepted and paid for upon the ground that it was not a part of the mill culls. Its acceptance had no effect upon the transfer of title of the mill culls. In my judgment, the trial court should have directed a verdict in defendant’s favor.

Judgment reversed, and a new trial ordered.

Montgomery, Ostrander, Hooker, and McAlvay, JJ., concurred with Carpenter, J.

Grant, C. J.

(dissenting). I see no occasion to retreat from my former opinion. The question, as I read the record, is not: Was the defendant bound by a void parol contract because he did not repudiate it? The question is: Was the contract, otherwise void, made valid by delivery ? Under the record as I read it, defendant made a parol offer for the property already in his possession, bulky, and as to which further delivery was unnecessary and impracticable. This parol offer was promptly communicated to plaintiff. He wrote accepting the offer, and defendant kept silence for five days. Where one having goods in his possession belonging to another makes a parol offer to buy and that parol offer is accepted, the law does not require the vendee to accept the acceptance of his offer to purchase in order to complete the sale. Remaining in possession and keeping silence for five days, when an answer, if the vendee intended repudiation, could have been made in a few minutes by telephone or a few hours by letter, are evidence of delivery and acceptance of the goods. The circumstances in this case are in my judgment sufficient to justify the finding by the jury that there was a delivery which satisfied the statute of frauds and made a valid contract.

The inspection of the culls made by plaintiff’s inspector in conjunction with the defendant’s inspector and the defendant’s men, was made February 15th, and at that time the ends were cut off from certain culls, leaving the balance merchantable lumber. The amount of this merchantable lumber was 6,435 feet, leaving the amount of the culls 22,957. Defendant’s offer to pay $9.50 per M. was made after this inspection and communicated to the plaintiff on the 16th. On the 21st of February plaintiff wrote defendant, demanding payment. The bill claimed 22,957 feet of mill culls at $9.50 per M. I am unable to find anything in that letter indicating that defendant had informed plaintiff’s agent, subsequent to the time of his offer, that he would not purchase the culls on those terms. There is evidence of a refusal to purchase before that time.

Blair and Moore, JJ., concurred with Grant, O. J.


text:
    YOUNG v. HUBBARD.
    1. Brokers — Real Estate —Commissions—Action—Evidence-Admissibility.
    In an action by a broker to recover commissions on the sale of real estate, the defense being that plaintiff’s employment had been canceled before sale was made, evidence that defendants had a more favorable offer for the property than that made through plaintiff was material.
    3. Same — Instructions—Modification—Propriety.
    A requested instruction to the effect that plaintiff could not recover if the purchaser had in fact and in good faith abandoned negotiations through plaintiff, before the matter was taken up with the same purchaser by another broker who made the sale, was proper to give, and was improperly modified by an addition to the effect that plaintiff must have led defendants’ agent to believe he had abandoned the transaction ; since defendants had the right to cancel the employment, and had the right to be the moving party in such cancellation.
    Error to Wayne; Rohnert, J.
    Submitted April 15, 1908.
    (Docket No. 78.)
    Decided September 15, 1908.
    Assumpsit by John C. Young and Justice R. Pearson against Kate L. Hubbard and the Hubbard Land Company for commissions on the sale of real estate. There was judgment for plaintiffs and defendants bring error.
    Reversed.

      Walker & Spalding, for appellants.

      A. W. Wier, for appellees.
   McAlvay, J.

This is an action to recover a commission on a sale of real estate. Prom a judgment entered on a verdict for plaintiffs, the defendants bring error.

That the plaintiffs were, in October, 1905, employed by defendants, on certain terms, to negotiate the sale of certain real estate in the city of Detroit is undisputed, as also is the fact that plaintiffs entered into negotiations with a Mr. Reed and wife,,and from them, on December 13, 1905, submitted to defendants a proposition to purchase on certain terms, which proposition was afterwards dropped. There is a dispute as to which party declined to carry it through. It is also undisputed that this was the only proposition plaintiffs submitted to defendants relative to a sale by them of these premises. Defendants sold the property, through W. H. Pocock, to the same Mr. Reed and wife, on or about March 15, 1906, for the sum of $35,000.

The defense to the suit was (1) that, after the submission of the proposition above referred to, plaintiffs stated to them that they had given it up; “that the thing was off;” (3) that the Reeds had in fact abandoned all negotiations of purchase through plaintiffs before it was taken up with them through Mr. Pocock; that plaintiffs were informed defendants were negotiating a sale through other parties; (3) that plaintiffs did not have the exclusive right of sale;' and that defendants had abandoned the employment of plaintiffs in this transaction. The errors assigned relate to the refusal of the court to admit certain evidence offered by defendants, to refusing certain requests to charge presented by defendants, and to certain parts of the charge as given. Defendants in their brief contend that,

“ Irrespective of an abandonment by the plaintiffs, and provided the parties acted in good faith,
“ (1) The defendants had the right to abandon or cancel the employment of the plaintiffs.
‘ ‘ (3) The defendants had the right to engage a second agent to sell the property, and to make a sale through such agent to a person whom the first agent had brought as a prospective purchaser, and it would then be a question for the jury as to which agent was the procuring cause of the sale.
“ (3) The defendants had the right to engage a second agent to sell the property, and to make a sale through such agent to a person whom the first agent had brought as a prospective purchaser, and the plaintiff cannot recover (a) if such prospective purchaser had given up the purchase of the property before being approached by the second agent, or (6) in the absence of reasonable ground for the defendants’ believing that the first agent was still negotiating with such prospective purchaser.”

The errors assigned are discussed by defendants with reference to their bearing upon these propositions.

Tinder the first proposition, during the trial, defendants offered evidence which they claimed tended to prove that they had abandoned plaintiffs’ employment. Mr. Walker was testifying. Among other things he said:

“ Between the time that Mr. Pearson (one of the plaintiffs) was in and said the deal was off and the time that Mr. Pocock took hold of it, I think Mr. Reed had been in once or twice, and had had some negotiations with reference to buying the Boulevard half of the property. I had been negotiating with Mr. Dingwall for a sale to another party, and had also negotiated with Partridge and Blackwell for a sale for a Catholic hospital, and had finally gotten a proposition from them, which I submitted to Mrs. Hubbard.
“Q. On more or less favorable terms than those originally granted in the Reed proposition, the Partridge, etc.—
“Mr. Weir: Objected to as immaterial.
“Mr. Spalding: The purpose is this, I wish to show an abandoning on our part.
“The Court: I will exclude it. Note an exception.”

Defendants excepted, and assign error. This testimony was offered as bearing upon the question whether defendants had abandoned or canceled the employment of the plaintiffs. We do not find that the right to do so is disputed. Plaintiffs’ claim is that it was not canceled or abandoned. If the right be conceded, then evidence tending to show the fact was material, and its exclusion would be erroneous. This evidence which was excluded would tend to prove the contention for which it was offered. Bailey v. Smith, 103 Ala. 641. In that case the court said:

“The defendant had a right to revoke the brokers’ authority at any time; and, having revoked it, and it being impossible to sell to McClintock, except upon terms much less favorable to the defendant, and good faith being exercised throughout — no intention to defraud plaintiffs of their commissions — defendant had the. right to make the sale to McClintock, without incurring liability to plaintiffs for commissions.”

In Earp v. Cummins, 54 Pa. 894, where the same question was before the court, it held:

“ An advertisement or any other service is enough if it be the immediate and efficient cause of the bargain. But if the services of the broker, whatever they be, fail to accomplish a sale, and, several months after the proposed purchaser has decided not to buy, he is induced, by other persons, to reconsider his resolution, and then makes the purchase as a consequence of such secondary or supervening influence, the broker has no right to a commission. In a certain sense it may be true that the purchase was in consequence of the broker’s advertisement; * * * but the evidence in this case shows that it was at least due to another, so distinct and separate a cause that it was a mistake to permit the broker to recover. * * * His agency was not the immediate and efficient cause of the sale.”

Defendants presented the following request to charge:

“ That the plaintiffs cannot recover if the Reeds had in fact and in good faith abandoned their negotiations for the purchase of the property, through the plaintiffs, before the matter was taken up with the Reeds by Mr. Pocock.”

This the court refused to give as presented, but added a modification as follows:

“The plaintiff cannot recover if Mr. Reed had abandoned negotiations for the purchase of the property before the matter was taken up by Mr. Pocock, if Mr. Pearson had led Mr. Walker to believe that he had abandoned all efforts to make the sale, and had abandoned the idea of association with the transaction any further.”

This is assigned as error. We have already held that defendants had the right to abandon or cancel the employment of plaintiffs. It follows that they had the right to employ another agent. Plaintiffs, in order to recover, must make it appear that their services were the efficient cause of the sale. There was proof in the case tending to show that the Reeds had abandoned all negotiations for the purchase of this property through plaintiffs. Whether they had or not was a question of fact for the jury, and defendants were entitled to have the request given without modification. The theory advanced by the court in the modification, as a condition before recovery could be defeated, was erroneous. The defendants could be the moving party in the cancellation of agency, and whether they had' done so or not was also a question of fact. This is the holding of the courts upon both propositions in the cases above cited. The fact that the first agent had negotiations with a purchaser is not the controlling fact. Such services of the agent, as already stated, must have been the efficient cause of the sale, which could not be the case if the jury should find the facts as contended for by defendants in the suit at bar. The owner and the purchaser under all circumstances must of course be found to have acted in good faith. This disposes of all matters necessary to be discussed.

The judgment of the circuit court is reversed, and a new trial ordered.

Grant, C. J., and Blair, Montgomery, and Hooker, JJ., concurred.


text:
    GASKILL v. WEEKS.
    1. Executors and Administrators — Accounting—Interest in Firm.
    On a bill against executors for an accounting, evidence examined, and held, that complainants’ contention that the executors should be charged with what they recived at the inventory figures was not supported, defendants having administered the estate, consisting in part of an interest in a mercantile firm in which one of the executors was also a partner, with care and economy, and having accounted for all the property which came into their hands.
    3. Partnership — Dissolution—Death of Partner —Rights of . Survivor.
    On the death of a partner the surviving partner is entitled by law to continue the business and to use his best judgment in winding it up.
    3. Executors and Administrators —Allowance for Services.
    Where a surviving partner was his deceased partner’s executor, and continued the business, using the deceased partner’s property without interest, and drew a salary while managing the business, its share of which and the other expenses of conducting the business the interest of the deceased partner paid, he was not entitled to a further allowance for his services as executor, which were perfunctory.
    4. Wills — Construction—Persons Entitled — Children.
    Under a clause in a will directing that the residue of testator’s estate shall be divided “ between all the children of my brothers and sisters and W. theniliving, share and share alike, and in case any of said children shall die leaving issue living at the time of the distribution of my estate such issue shall take the share of their deceased parent,” the children of W. share equally with the children of the brothers and sisters, and on like terms with them.
    Appeal from Jackson; Parkinson, J.
    Submitted April 16, 1908.
    (Docket No. 92.)
    Decided September 15, 1908.
    Bill by Mary H. Gaskill and others against Eugene J. Weeks, Charles C. Bloomfield, and Thomas A. Wilson, executors of the last will and testament of Chester Warriner, deceased, and others, for an accounting, and for a construction of said will. From a decree for defendants, complainants appeal. Modified and affirmed.

      D. P. Sagendorph, for complainants.

      Wilson & Cobb, for defendants.
   McAlvay, J.

The bill of complaint in this cause was filed for an accounting, and for construction of the will of Chester Warriner, deceased. Complainants are the surviving heirs of deceased, entitled under his will to share in the distribution of his estate. The principal defendants, Eugene J. Weeks, Charles C. Bloomfield, and Thomas A. Wilson, were named as executors in the will, and qualified as such. They have administered the estate and are called upon as trustees to account for all assets belonging to said estate which have come into their hands. From an adverse decree of the circuit court of Jackson county, the terms of which will be stated later, complainants have appealed.

The facts necessary to be stated are as follows: Chester Warriner died at Jackson, Mich., October 7, 1886, leaving a widow, but no children. He died testate. His will is as follows:

“I, Chester Warriner of the city of Jackson and State of Michigan, do hereby make and publish this my last will and testament thereby intending to dispose of all my worldly estate of which I shall be possessed at the time of my demise. I direct that all my just debts including funeral expenses and expenses of administration be paid out of my estate. The residue and remainder of my estate, both real and personal, I devise and bequeath to Eugene J. Weeks, Charles C. Bloomfield, and Thomas A. Wilson, my executors, hereinafter named, in trust for the following purposes:
“First. To my wife, Lucy Jane Warriner, during her natural life the net income of my estate and in case such income shall not be sufficient to suitably support her to use and appropriate sufficient of the principal of my estate for that purpose.
“Second. After the death of my wife and the payment of her funeral expenses to convert my remaining estate into money and divide the same between all the children of my brothers and sisters and Eugene J. Weeks then living share and share alike, and in case any of said children shall die leaving issue living at the time of the distribution of my estate such issue shall take the share of their deceased parent.
“ I hereby appoint Eugene J. Weeks, Charles C. Bloomfield and Thomas A. Wilson, executors of this my last will and testament and revoke all other wills by me at any time made.
“In witness whereof I have hereto set my hand this first day of July, A. D. 1884.
“Chester Warriner.
“Signed by the testator, Chester Warriner, as and for his last will and testament in the presence of us, who, at his request, in his sight and presence and in the presence of each other, have subscribed our names as attesting witnesses this first day of July, A. D. 1884.
“Eugene J. Weeks, Jackson, Mich.
“Thomas A. Wilson, Jackson, Mich.”

The executors made and filed an inventory of the estate, real and personal, and an appraisement of all the property, amounting to $21,155.53. They proceeded under the will to administer the estate. At the time of his death, testator, among other property, owned a one-third interest in the firm of Weeks, Latimer & Co., conducting a drug business, which interest was appraised at $3,383.47. The partner Latimer had a contract with the firm for a term of years, by which he was entitled to manage the business, and, in case of death of a partner, the business was to continue foriihat period. He continued the business until his death one year later. During this time decedent’s interest remained in the business. After Latimer’s death, the surviving partner Weeks (one of the executors) continued the business as Weeks & Co., keeping the interest of the estate in the business. A corporation was organized later, which, in fact, continued this business, and of which a certain amount of stock was issued to the Warriner estate. Afterwards a stock dividend was declared when more stock was issued to the estate. The record contains an extended statement of receipts and disbursements made by the executors during the years of administration of this estate, and a large amount of testimony material to the issue. We do not think that an abstract of these accounts and this testimony would be of benefit to the profession. We find that the contention of complainants that the executors should be charged with what they received at the inventory figures would work an injustice and is not supported by the evidence. They have accounted for the property which came into their hands, and the record shows that they have administered the estate with care and economy. The partner Latimer was entitled to continue the business under his contract, and Weeks, the survivor, was also entitled by law to continue the business, and use his best judgment in winding it up. We do not find that continuing this business has defeated the estate. The allowance to the widow during her lifetime was a reasonable one, and there is no dispute in the record but that it was paid as claimed in the account. From our examination of this account, we are satisfied that the court arrived at the correct amount due the estate and in the hands of the executors, using the books kept by defendants as the basis of such accounting.

We do not agree with the allowance made to defendant Weeks for services. He drew a salary while managing the business. He was a partner, conducting this business, and had the use of this property without interest. It paid its share of all the expenses of the business, and the services of the executors were perfunctory. Such allowance was not warranted by the' facts. Whether the circuit court had authority to make it we need not determine in this case.

Our construction of the second paragraph of the will of Chester Warriner is that the children of Eugene J. Weeks are to share equally with the children of the brothers and sisters of deceased, and on like terms with them. We do not agree with the court that the amount admitted to be in the hands of these defendants is admitted as a matter of grace to this estate and those entitled to it, or that by any proper system of stating this account the estate can be said to be indebted to defendants. Their admissions foreclose any discussion of the matter. Nor do we agree that any heir or person is entitled to a share of this estate because he accepts or rejects the actions of defendants in conducting the business as was done by them. The law determines who is vested with an interest in an estate, and from the facts the courts determine as near as may be the amount of an estate. It is a fact that complainants’ solicitor refused to accept the accounting of defendants, although asked, to do so by the court. Complainants are entitled to share in this estate according to the terms of the will. The amount to be divided and distributed among these parties in interest is the sum of $10,666.65, with interest at 5 per cent, per annum with annual rests from and after June 30, 1904. This does not include the cemetery lot and improvements thereon.

The decree of the circuit court will be modified in accordance with the foregoing opinion. The costs and solicitor’s fees as fixed by the circuit court are affirmed to complainants, together with costs of this court to be taxed.

Grant, C. J., and Blair, Montgomery, and Carpenter, JJ., concurred.


author: Per Curiam.

text:
    THOMPSON v. McKAY.
    Appeal and Error — Chancery Appeal — Payment ox Register’s Fee — Neoessity.
    Under Act No. 340, Pub. Acts 1907, § 5, the payment of the register’s fee of $5, at the time of filing the certified transcript in a chancery case, in which an appeal has been claimed, is mandatory, and an appeal in a case in which the fee was not paid as required, until after the lapse of four months from the date of filing, was dismissed.
    Bill by H. Jay Thompson, Oscar M. Smith, and Morris A. Knight, copartners as Jay Thompson & Company, against Mary Ann McKay and Eugene McKay to cancel a deed, and in aid of execution. From a decree for complainants, defendants appeal:
    On motion to dismiss.
    Submitted May 12, 1908.
    (Calendar No. 22,838.)
    Granted September 15, 1908.

      E. V. Ingersoll, for the motion.

      R. A. McKay (James Van Kleeck, of counsel), contra.
   Per Curiam.

In this case a decree was entered in the circuit court in chancery for Bay county July 12, 1907, in favor of complainants. A claim for an appeal was filed August 20, 1907. The transcript of the testimony was settled and signed by the circuit judge November 26, 1907. On the same date this transcript was delivered by counsel for appellants to the register in chancery, of said circuit, when the statutory fee of $5 was demanded, but not paid. On February 26, 1908, complainants moved, before the circuit court, to dismiss the appeal for nonpayment of the register’s fee. This motion was denied. The fee was paid, and the case returned to this court March 23, 1908.

On this motion it is claimed, and supported by the affidavit of the register in chancery, that, when the transcript certified as settled was presented and delivered to him by defendants’ solicitor, he demanded the fee of $5, and informed said solicitor that the transcript would not be filed, and no return would be made, until such payment was made. The payment was promised in a few days. These facts are not denied by appellants, but are excused by their solicitor in his affidavit on account of “sickness and personal matters,” and on account of a claimed oral agreement with complainants’ solicitor made on the date the fee was paid. This agreement is denied by counter affidavit. The payment of the fee to the register is mandatory and jurisdictional. The statute of 1907 (Act No. 340, Pub. Acts 1907, § 5) provides that the filing of the certified transcript and the payment of the fee are contemporaneous. The statute reads:

“ The transcript certified by the trial judge as having been settled by the parties as provided for in either of the preceding sections shall be filed with the register of the trial court immediately upon such certification * * * and a fee of five dollars shall then be paid to said register.”

It is not necessary to construe the meaning of the word “immediately,” as connected with the filing of the transcript and paying the fee. The fee was paid four months after the transcript was presented to the register. This statute was intended to expedite the matter of taking appeals in chancery to this court. The requirement relative to filing the transcript and paying the fee is not unreasonable. If printing has been done and expense incurred in taking this appeal, the blame cannot be put upon complainants. The fact that no bond was filed and a sale under execution has been made of the property involved so that no hardship or loss accrues to complainants cannot be taken into consideration. There is no question of discretion here. It is a matter of construction.

The motion is granted, and the appeal is dismissed, with costs of motion fixed at $5.


author: Ostrander, J.

text:
    EBEL v. HULCE.
    Boundaries — Fences—Location by Parties.
    Where a fence has been claimed by defendant and his grantors to mark the true boundary between his land and plaintiff’s for nearly 50 years, and nothing is claimed to have taken place impeaching defendant’s adversary holding until long after he had occupied the land for 20 years, his subsequent willingness to have a contemplated new fence built upon a straight line, his joining with his neighbors in paying for a survey of the section, and later with plaintiff in employing the same surveyor to designate where the true line as established by the previous survey would fall, and his statement that he never claimed more land than his deed called for, do not impeach his title to the land enclosed by the fence, where he never admitted the correctness of the new boundary, and always claimed that what his deed called for was laid out upon the ground, and its boundary marked by the fence.
    Error to Eaton; Smith, J.
    Submitted June 3, 1908.
    (Docket No. 14.)
    Decided September 15, 1908.
    Ejectment by John Ebel against Benjamin Hulee. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      Horace 8. Maynard, for appellant.

      Elmer N. Peters, for appellee.
   Ostrander, J.

The owner of a quarter section of land sold the east one-half of the east one-half thereof in 1856 to defendant’s grantor. In 1857 said grantor and grantee built a line fence which has ever since been maintained ; defendant and the original grantor. and his successive grantees occupying to the fence and joining in its maintenance. Plaintiff bought the land to the west of the above-given description in 1883, and was told by defendant that the fence was on the line. Thereafter he and defendant maintained the fence. This suit was begun in 1907 to recover a narrow piece of land lying east of the line of the old fence. The trial court, over the contention of defendant that a verdict should be directed in his favor, submitted to the jury two questions of fact; the first involving the integrity of a survey made 16 or 17 years before this case was tried, and of a line run in accordance with that survey some 2 or 3 years before the case was tried; the second, the intention and understanding of the owners in laying the old fence and in occupying the land on either side thereof. That the proprietors had, in fact, exclusively, continuously, peaceably for nearly 50 years occupied the land on either side of the fence, and joined in maintaining it, is not disputed. The original owner of the quarter section of land is dead. His widow, who succeeded to the title to land west of the fence, is dead. Their son, who lived on the land for more than 28 years and until it was sold to the plaintiff, testified that he supposed the fence was on the line. He never heard the matter mentioned until he was old enough to and did manage the farm for his mother, when defendant told him how he and the father of the witness had divided the fence for purposes of its maintenance. Witness thereafter maintained the portions so designated by defendant. Defendant testified, without objection, that the fence was originally built upon a line designated by a surveyor, agreed to by the original owner and himself as the dividing line. He was cross-examined upon the subject. On his cross-examination the following occurred:

“ Q. When you built the first 40 rods, you did not build a straight true line fence. What I mean is, it was not a wire fence like your present wire fence. I do not mean by that just the crooks in the worm fence.
“A. We had a worm — it was a five feet worm. I don’t think there were crooks and bows in that rail fence. We [defendant and his grantor] calculated that was a true line.
“Q. You calculated it was a true line between your properties. I concede that. That is not what I am driving at; but what I mean wasn’t that fence somewhat crooked after you got it done, wasn’t that fence bowing some and somewhat crooked ?
“A. Not but very little, if any.”

Later a motion was made for plaintiff to strike out testimony relating to matters equally within the knowledge of the deceased grantors. The court refused to strike it out. With this undisputed testimony and the concession of counsel in the record, it was clearly error for the court to submit to the jury, as he did, the question whether the original fence was provisional, built for convenience, and with an understanding that, when the true line was found, it should be resorted to. But defendant was in any event entitled to have a verdict in his favor directed by the court. His claim that the old fence marked the boundary is repeated and insistent. Nothing is claimed to have taken place impeaching his adversary holding until long after he had occupied the land for 20 years. Nothing has since transpired to divest him of the title thus acquired. There is testimony tending to prove that the old fence was not straight, and that defendant desired to have the contemplated new post and wire fence built on a straight line. He joined withhis neighbors in 1890 or 1891 in paying for the services of a surveyor to survey the section. There is testimony tending to prove that plaintiff and defendant and the same surveyor, two or three years before this case was tried and when a new fence had become a necessity, found out where it was claimed the true line as established by that survey would fall. But it is not claimed that defendant did otherwise than deny the correctness of the line and refuse to agree to the new boundary. Plaintiff relies upon the statement of defendant, given at the trial, that he never claimed more land than his deed called for. But he did claim that what his deed called for was laid out upon the ground and its west line marked by the old line fence. There is no testimony tending to prove a new boundary by agreement. Neither the joining in the movement for a new survey nor the desire to have a straight fence operated to divest him of his title.

The judgment is reversed, and a new trial granted.

Grant, C. J., and Blair, Montgomery, and Hooker, JJ., concurred.