text:
    HENNIG v. GLOBE FOUNDRY CO.
    1. Master and Servant—Injury to Employe—Trial—Instructions.
    Where a foundry employé, who was struck and injured by a car used to haul coal and iron up an incline, brought suit against his employer, alleging that the wire cable by which the car was hoisted and lowered had become weak and unsafe, so that, by reason of a slight jerk, it broke upon the occasion of the accident, and upon the trial the engineer, who was responsible for lowering the car, testified that the cable merely became detached, and that he did not discover the fact until too late, the defendant was entitled to have the jury instructed that if they should find that the cable was in a reasonably safe and proper condition for use, and that the accident was occasioned by the negligence of the engineer in not seeing that the cable Was attached, their verdict should be for defendant, and a general instruction that the engineer was a fellow-servant of plaintiff, for whose negligence there could be no recovery, was insufficient, especially in view of the fact that the plaintiff’s theory of the case was fully presented.
    2. Same—Defective Appliance—Evidence.
    The fact that a witness who examined the cable after the accident found a “little rust” upon it was insufficient to raise a question for the jury as to its safe condition.
    3. Same—Proximate Cause—Fellow-Servants.
    If the cable was reasonably safe for the purpose for which it was intended, and the accident was due to the negligence of the engineer in sending the car down the incline with the cable slack, defendant was not liable.
    Error to Wayne; Frazer, J.
    Submitted April 15, 1897.
    Decided May 11, 1897.
    Case by William Hennig against the Globe Foundry Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      The plaintiff was an employé of the defendant. Connected with the foundry was a cupola. A steep incline led from the ground to a platform near the top of the cupola. On this incline were two tracks of iron rails, over which pig and scrap iron and coal were conveyed to the platform in a car about five feet long and three feet wide. The car was hoisted and lowered by means of a wire cable extending around an iron drum operated by steam. On the end of the cable was a loop made by bending the cable upon itself, and binding the end to the cable with wire. Attached to the car was a hook. By means of. this loop and hook the car could be attached to and detached from the cable. It was one of the duties of the plaintiff to carry the iron in a wheelbarrow to, and load it upon, the car. While he was performing this duty, the cable was usually detached from the car by him, when it reached the ground, and the' car pushed to the proper place for loading. It was also the duty of plaintiff to hook and unhook the car, and he had done so for some time. At night the car was left on the platform at the top of the incline. It was the duty of the engineer to lower this car. On the morning of the accident he had difficulty in pushing the car to the edge of the platform. He pulled it back some distance, so as to give slack to the rope. He then pushed the car to the incline. . For some reason the car became detached from the rope, and rushed down the incline, striking the wheelbarrow which the plaintiff was in the act of wheeling across the track. The wheelbarrow was thrown against the plaintiff, and he .was injured. He plants his suit for damage upon the negligence of the defendant. The negligence alleged was, in the first count, that the cable “became cracked, rusty, rotten, weak, and unsafe, so that a slight pressure or jerk was liable to cause said cable to part at the point where the ring pressed against it; all of which said defendant well knew, but which said defendant neglected and refused to change or repair after acquiring such knowledge.” The second count is, in substance, the same; alleging, for the same reasons, that the cable was incapable of supporting and holding the car. The theory of the plaintiff was that, when the car started down the incline, the cable was attached to it; that the rope was slack; that when about five feet down the incline, the slack being then taken up, the sudden jerk tore or broke the cable from the hook; that the break or tear was due to the bad condition of the rope, which condition the defendant ought to have known and provided against. The engineer, who was the sole witness to the accident, testified that, in pulling the car back, the cable became detached from the car; that he did not discover -it until it was too late to stop it; that he called out to plaintiff, in an attempt to warn him of the danger; and that the cable was used the same day, and for some time thereafter, in the same condition that it was before the accident. Plaintiff recovered verdict and judgment.

      Keena & Lightner, for appellant.

      Charles W. Chapman (Moore & Moore, of counsel), for appellee.
   Grant, J.

(after stating the facts). 1. The first error assigned is the refusal of the court to give the following request:

“If you find from the evidence in this case that the car and cable were in reasonably safe and proper condition for use, and that it was the negligence of the engineer, Marshall, in not seeing that the cable was attached to the car before he shoved it down the incline, plaintiff cannot recover.”

Nowhere in his instructions did the learned circuit judge refer to the theory of the defendant. He did charge that the engineer was a fellow-servant, and that for his negligence there could be no recovery. It was, however, of importance that the judge should state to the jury the theory of the defendant, especially in view of the fact that he fully stated the claim of the plaintiff. Poole v. Railway Co., 100 Mich. 388, where authorities are cited.

2. The following requests were preferred on behalf of the defendant, and refused:

“There is no evidence in this case that the defendant had any reason to suppose the cable was not in reasonably safe condition for the use it was intended, up to the time of the accident. The verdict of the jury must therefore be for the defendant.
“There is no evidence that the defendant had or is chargeable with notice of the defect in the cable claimed by plaintiff to have caused the accident.
“There is no evidence that the cable was not reasonably safe for the work it was intended, and the jury cannot be permitted to draw any inference of defect or negligence in the defendant from the pulling out of the hook, alone.
“The pulling out of the hook in the manner claimed by the plaintiff is not of itself sufficient to charge the defendant with negligence in this case.
“There is no evidence that the defendant had any notice of a defect in the cable, or that it was not in as good and safe condition as it was the day before, when the evidence shows it pulled the car up the incline, heavily laden, without breaking; and the plaintiff is not entitled to recover.”

In view of these requests, and the instruction of the court, it is important to fully state the testimony which it is claimed tends to sustain the charge of negligence. It is not claimed that the cable or hook was faulty in construction, or otherwise, or that they had been in use for such length of time as to require examination or replacement. Nor is there any evidence that they had become so worn that an inspection should have condemned them as unfit for use. Plaintiff, who hooked and unhooked them many times every day, does not testify that he saw any signs of wearing or weakness or unfitness for use. Thirty loads of iron and coal had been drawn up the day before, the last weighing 800 pounds. Plaintiff, on his direct examination, testified, “The rope broke, and they did not get on the brake in time, and the car came down fast.” This is all he said about the cause of the accident. On his re-direct and re-cross examination he testified that the loop on the cable was the one that broke, and that the engineer showed him the broken part in the engine room, where he was taken after the accident. He finally testified that he did not see the break himself, but that the engineer told him. All his testimony upon this point was therefore stricken out as hearsay. The only other testimony upon this point was that of Charles Licht, who was employed in the cupola at the time of the accident. We give the following excerpts from his testimony:

“I went up on top the cupola, where the rope was. I saw the end of the rope. It is a -wire rope.
“Q. Just tell the jury how the wire rope was drawn out,—how it pulled out.
“Mr. Keena: There is no evidence that it pulled out. It is leading.
“The Court: State how it appeared.
“Q. Tell how it looked,—how it appeared.
“A. How the rope broke ?
“Q. How the x’ope broke.
“Mr. Keena: There is no evidence that the rope broke.
“A. The carriage came down,—the bucket that they hoist pig iron on. They shoved the carriage down, and the rope stayed upstairs.
Mr. Keena: Who shoved the carriage down ?
“A. I didn’t see the man shove it down.
“Q. (By Mr. Moore). What did you see on the loop? What did the end of the rope look like ?
“A. It was wore out. It was not wore out, but it was pulled out.
‘ ‘ Q. And the ring ?
“A. And the ring stayed in the carriage.
“Q. It was worn out—
“Mr. Keena: Hold on. There are other ways of asking questions of witnesses.
“The Court: Ask him what he saw.
“Q. How much of it was broken? What part was broken of the end of the wire rope? You say it pulled out. How did it pull out ? (Objected to.)
“The Court: That is improper.
“Q. You say it pulled out. Will you just explain how it pulled out ?
“A. It pulled out. It was not wore, I guess, but it pulled out. It was wore through. Not woi’e through, but it broke. * * * •
“Q. What was the appearance of the wire rope, as to being rusty or bright?
“A. It was a little rusty, that it wore through. It didn’t wear through, but it pulled out.”

The end of the cable was near the top of the incline. On cross-examination, counsel for the defendant attempted to elicit from the witness whether a portion of the end of the cable forming the loop separated from the cable, but failed in doing so. The principal fact testified to by him was that the loop was pulled out.

The above comprises all the testimony from which negligence can be inferred. It is unnecessary to cite authorities to show that this accident, even if the rope broke, was not of itself sufficient evidence of negligence. The duty of the defendant towards its employés was fully performed when it had provided a cable reasonably safe for the purpose for which it was intended. The law imposed no duty upon it to provide a cable which would stand the unusual strain placed upon it through the negligence of one of its employés, who was a fellow-servant with the plaintiff. If the proximate cause of the accident was the negligence of the engineer in unhooking the cable from the car, or in sending it down the incline with a slack cable and an unset brake, the plaintiff cannot recover. There is no testimony in the case to show the weight of this car, or the strength of cable required to withstand the force upon it caused by a sudden drop of the car down the incline. The cable may have been of ample strength .to pull loaded cars up and to let empty cars down in the usual manner. There is no evidence that it was not sufficient for that purpose. In fact, it had proved sufficient for that purpose. The sudden descent of the car thi’ough the negligence of an employé was an accident which the defendant could not foresee, and against which it was not required to provide. There is no evidence that the cable was cracked or rotten. The fact that witness Licht saw a “little rust” upon it is no evidence of an unsafe condition. Rust will form on iron in a single night. The record is barren of any evidence tending to show that a cable entirely safe for ordinary use would not pull out or break by the sudden strain to which it was subjected by the negligence of the engineer. There is also no evidence that the “pressure or jerk” was “slight,” as alleged in the declaration. Piette v. Brewing Co., 91 Mich. 609. It follows that, under this record, the court should have given the above requests.

Judgment reversed and new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    CONNOR v. HURLEY.
    Contract op Employment—Wrongful Discharge—Damages— Question for Jury.
    Whether plaintiff, who was employed as a marine engineer, used due diligence, after his wrongful discharge, to obtain other employment, was a question for the jury, where it appeared that he was discharged in the spring, after the season for making up crews had passed, and when many were out of employment; that he left his name with the “Union,” as was the custom, to he referred to vesselmen desiring engineers, and also at one other place; and that he secured a position in September for the remainder of the season.
    Error to Wayne; Hosmer, J.
    Submitted April 15, 1897.
    Decided May 11, 1897.

      Assumpsit by Patrick E. Connor against Timothy Hurley for the breach of a contract of employment. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      John C. Shaw and Joseph H. Clark, for appellant.

      Charles Flowers, for appellee.
   Montgomery, J.

Plaintiff is a marine engineer, and brought this action to recover for a breach of a contract of hiring. He gave evidence tending to show that he was employed by defendant in the spring of 1892, for the season, at the agreed price of $1,100; that he commenced work under this employment, and continued working for 26 days, when he was taken sick; that he offered to secure a man to take his place during his absence, but defendant informed him that he would do that, and that he (plaintiff ) could return to work when he recovered; that he was sick for 8 or 10 days, and when he went back to resume his work defendant had employed another man for the season. The defendant testified, on the other hand, that there was no employment for the season, and that there was no agreement at the time plaintiff left that he should be re-employed; but the jury found upon these questions in favor of the plaintiff’s contention. Thus far it is clear that the case presents no question of law, but turned upon the credibility of the witnesses, and, while the defendant made a motion for a new trial, and has assigned error upon the ruling of the circuit judge refusing it, the case is certainly not so clear upon its facts as to justify us in concluding that the circuit judge erred in refusing a new trial.

The defendant also contends that the testimony of the plaintiff himself shows that he failed to use due diligence in seeking other employment. He gave testimony to the effect that the town was full of men out of employment; that he did leave his name with the “Union,”—which would appear to have been an employment bureau; and he states that if a vessel owner comes along, and wants a man, a list of these names is furnished, and a selection made therefrom. He also testified that that was the custom among engineers. He testified that he also left his name with the Riverside Iron Works; that he did finally get a job in September, for the balance of the season. The circuit judge, we think, properly submitted it to the jury to say whether the plaintiff used reasonable diligence to obtain employment during the season; and charged them that mere leaving an application at the marine engineers’ hall would not be reasonable diligence, so long as there were other places where a man of his profession might reasonably expect to get employment; and that he must be diligent in seeking employment during all the rest of the season. We think this instruction sufficiently favorable to defendant, and that it cannot be said, as matter of law, that the plaintiff did not use reasonable diligence, under the circumstances, in view of the fact that the season for making up a crew had already passed at the date of his discharge, and that there were many men out of employment, and in view of his testimony that he followed the custom prevailing among engineers.

The judgment will be affirmed.

The other Justices concurred.


text:
    STEPHEN v. YEOMANS.
    Contracts—Original Promise—Consideration.
    Where one furnishing material for a building in process of construction contracts in writing, for a valuable consideration, to see that no liens are placed upon the property, his subsequent agreement to pay the claim of a material man, in consideration of the latter’s forbearing to enforce his lien, is binding as an original promise.
    Error to Wayne; Frazer, J.
    Submitted April 15, 1897.
    Decided May 11, 1897.

      Assumpsit by William R. Stephen and Henry Mason against Arthur Yeomans and Frederick H. Yeomans for goods sold and delivered. From a judgment for plaintiffs, defendants bring error.
    Affirmed.

      W. W. Wicker, for appellants.

      S. E. Engle, for appellees.
   Montgomery, J.

Reissman & Barnes had a contract for the purchase of some lots on Tillman avenue, in Detroit. They were also engaged in building two houses upon these lots. The defendants furnished lumber to them to be used in the construction of the houses. Plain.tiffs furnished hardware to be used for the same purpose, to the amount of $176.52. Reissman & Barnes sought to make a loan on the premises through one Charles T. Miller, and the following letter was addressed to Mr. Reissman by Mr. Miller:

“Mr. G-eo.EL Reissman, City.
“Dear Sir: With reference to closing up the loans on Tillman-avenue houses, my clients wish to have it done in the following manner: Upon delivery of the Chemenski mortgages for $1,950, properly executed, we will pay out $1,185 to the several parties you mention, so as to procure release of existing mortgages and pay some more pressing accounts. The remaining $767 coming to you, we wish to go to Yeomans & Co., on condition that they or you will see that all the other bills are paid, and no liens placed on the property.
“Yours truly,
“Chas. T. Miller.”

Upon this agreement, defendants indorsed the following:

“We accept the above condition.
“Yeomans, Chesebrough & Co.”

This was also signed by Reissman & Barnes.

Thereupon Mr. Miller paid into the hands of Yeomans, Chesebrough & Co., the defendants, the $767 mentioned in the foregoing letter. Subsequently, plaintiff Mason, in company with Mr. Reissman, called upon Yeomans & Co., and what occurred is in dispute. But it is conceded that Yeomans & Co. paid $90 upon the account, leaving a balance of $86.52. The plaintiffs’ claim is that at this time Yeomans Sc Co. agreed to pay the amount of this claim of plaintiffs, and that the plaintiffs accepted Yeomans Sc Co. for their pay, and released Reissman Sc Barnes. After two payments amounting to $90 had been made, plaintiffs’ agent again called upon the defendants for the balance. Defendants then stated that they would not pay any more, whereupon plaintiffs’ agent said that the time for putting a lien upon the property had nearly expired, and plaintiffs wanted to know what defendants were going to do, so that plaintiffs could get secured. Plaintiffs’ agent testifies that defendants then told him that they were on a bond to see that the liens were paid, and requested him not to put a lien upon the property. Defendants admit that Mr. Mason called upon them in company with Mr. Reissman, and that they paid $25 upon the account. One of the defendants testified that he stated to them at that time that he would pay the bills that they brought in to him, if they had any, from the money that he was to get from Mr. Miller; that he subsequently paid out more than $767; and that he afterwards told Mr. Mason that, if he wished to put a lien upon the property, he could not keep him from it, and that he was not going to pay the bills with his own money.

The only matter in dispute was whether the defendants promised the plaintiffs to pay them their demand. The case was submitted to the jury on the following charge:

“If you believe that Yeomans Sc Chesebrough promised that, if the plaintiffs, Stephen & Mason, should not. resort to or enforce their lien against the property in question, they .would pay the bill, that would be a good and valid consideration, and the promise would be original to pay the debt, and the defendants would be liable.”

Defendants’ counsel complains of this instruction, and contends that, before a promise to pay a sum which consists of an obligation owing by another can be treated as an original promise, a consideration must pass to the promisor; and counsel cites authorities to show that it is not enough, in such case, that the plaintiffs have relinquished an advantage or given up a lien in consequence of defendants’ promise. This contention may be conceded, but counsel seems to have overlooked the fact that by the undisputed testimony it appears that there was in this case a consideration passing to the promisors. The promisors had bound themselves to keep these premises clear of liens, and, to that end, to pay all other bills than their own. Certainly, it was a consideration' passing to them to refrain from placing a lien upon this property, When, if such lien had been placed upon the property, they would have been liable for a breach of their undertaking. They had an interest in the property to that extent, and the case cannot be distinguished from one in which they were either owners or holders of a lien upon the property. They were under a legal obligation to prevent the lien being placed there, and would, of necessity, have been damaged by having one placed upon the property. We think a consideration passed directly to them, upon the undisputed testimony; and, this being the case, the charge of the court, which was evidently given with a view to the circumstances of this particular case, was not error.

Judgment affirmed.

The other Justices concurred.


author: Grant, J.

text:
    LAIRD v. COACH.
    1. Appeal—Review.
    A case tried by the court without a jury cannot be reviewed on the evidence where no findings of fact and law were requested or made.
    2. Title to Land-Tax Deeds.
    Two tax deeds, one of which conveys to the grantee an undivided three-fourths of the land for delinquent taxes of a specified year, and the other an undivided third for delinquent taxes of the succeeding year, do not necessarily convey the entire title to the purchaser.
    3. Trover—Conversion of Timber—Proof of Title.
    Plaintiff brought trover for the conversion of timber, the declaration covering all the timber cut and removed from certain land to which he claimed title. Upon the trial he proved title to an undivided two-thirds of the land only, a,nd defendant thereupon introduced in evidence;- over plaintiff’s objection, a deed through which he claimed. Held, that it was competent for defendant to show title to any interest in the land, and that the deed was admissible for such purpose.
    Error to Baraga; Hubbell, J.
    Submitted April 16, 1897.
    Decided May 11, 1897.
    Trover by William H. Laird against William Coach. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Hill & Rood, for appellant.
    P. R. McKernan (Chadbourne & Rees, of counsel), for appellee.
   Grant, J.

Suit in trover for the conversion of the timber cut and removed from certain land to which plaintiff claimed title.

The case was tried before the court without a jury, and no finding of facts and law was requested or made. We cannot, therefore, review the case on the evidence.

One exception was taken, to the introduction of a deed from one Williams to the defendant, and upon this error is assigned. Plaintiff had introduced deeds which conveyed to him the original title to the undivided two-thirds of the land. These deeds were unrecorded when defendant purchased through Williams, who is claimed by plaintiff to have been defendant’s agent. Plaintiff had also introduced two tax deeds, one of which conveyed to him the undivided three-fourths of the land for delinquent taxes of 1888, and was on record when defendant purchased ; and the other, an undivided one-third for delinquent taxes of 1889. It cannot be said that these tax deeds conveyed the entire title to plaintiff. He had shown the original title to only two-thirds. ■ His declaration covered all the timber cut and removed. It was competent for defendant to show title to any interest in the land, and the deed was admissible for the purpose. Its admission was therefore not error.

Judgment affirmed.

The other Justices concurred.


text:
    FORBES v. FORBES.
    Land Contract—Construction.
    One who goes into possession of land under a contract by the terms of which a warranty deed thereto is executed to him, and he agrees to put the land on the market, and use due diligence to sell the same within the next year, and, if sold within that time, to pay over to the vendors all above a specified amount received for the land, and, if not sold within such time, to pay over half of what he receives therefor, cannot, after postponing the sale for several years, charge the vendors with the taxes, or with the expenses of subagents employed by him to make the sale.
    Error to Allegan; Padgham, J.
    Submitted April 16, 1897.
    Decided May 11, 1897.

      Assumpsit by John Forbes, Jr., and Henry R. Scott against William E. Forbes upon a contract for the sale of lands. From a judgment for plaintiffs, defendant brings error.
    Affirmed.
    On January 7, 1878, plaintiffs, being the owners. of some land in the State of Missouri, executed a deed of the same to the defendant, the consideration expressed therein being $2,000. The real consideration was evidenced by a contract executed by defendant to the plaintiffs on the same day, as follows:
    “Know all men by these presents, that I, William E. Forbes, of Plainwell, Allegan county, and State of Michigan, am held and firmly bound unto John Forbes, Jr., and Henry R. Scott, of the same place, to fulfill the following agreement: That upon the receipt of a warranty deed from H. R. Scott for 320 acres of land in the county of Howell, State of Missouri, now owned by him, I am to pay over to the said J. Forbes and H. R. Scott $200, and that I will put the same land on the market, and use due diligence to sell the same within the next year; and, if sold within the next year, I agree to pay over to the said J. Forbes and H. R. Scott all over $400 that I receive for said land, unless the receipts shall equal or more than equal $1,200, in which case I am to pay said J. Forbes and H. R. Scott two-thirds of the receipts. If not sold within one year, I am to pay over to the said J. Forbes and H. R. Scott one-half of what I receive for said land.”
    Defendant sold none of the land until 1890. On January 15th of that year, and at various times until March 2, 1895, he sold portions of the land, which, with interest to the commencement of this suit, amounted to about $854. This suit was instituted to recover the share of the purchase price belonging to the plaintiffs under this contract, and they recovered verdict and judgment for $292.93.

      Ed. J. Anderson, for appellant.

      B. Schoonmaker, for appellees.
   Grant, J.

(after stating the facts). 1. Defendant insisted that there was a misjoinder of plaintiffs, and that, therefore, they could not recover. This claim was based upon evidence on the part of the defendant that plaintiffs had treated their obligations against the defendant as separate, and that Scott, by giving an order for $70 to his co-plaintiff upon the defendant, had parted with his'interest in the subject-matter of the contract. The order had not been paid. Plaintiff Forbes had given his note to the defendant for $120, which defendant testified included the $70 order. Plaintiff Forbes had made certain payments upon this note. Plaintiffs positively denied this transaction, and gave evidence tending to show that the note had no connection whatever with the sale of these lands. This question was left to the jury under a fair statement by the le'arned circuit judge of the claims of the respective parties.

2. The court, under objection by the plaintiffs, permitted the defendant to introduce evidence of the conversations had between the parties leading up to the giving of this deed and the contract, upon the theory that the consideration for the deed was open to parol. proof. Whether this ruling was correct, we need not determine. At the request of the defendant, the entire transaction, including the written and parol evidence, was placed before the jury; and they were instructed that if the plaintiffs agreed to pay the taxes, commissions, and expenses incurred by the defendant, or any part thereof, they should allow it. That the jury did allow some of these items is evident from the amount of their verdict. We see no error upon this branch of the case.

3. The court properly construed the written contract to mean that the plaintiffs were entitled to receive one-half the gross amount of the sales. The title was in defendant, and he could sell at any time and for any amount he chose to. Plaintiffs parted with their title, and had no control or voice in the matter. It was evidently not contemplated that defendant should employ subagents to make these sales at the expense of the plaintiffs, or postpone a sale for years, and charge the taxes against them.

All the questions were left to the jury under a very clear and- fair charge.

The judgment is affirmed.

The other Justices concurred.


text:
    HILL v. HILL.
    1. Appeal—Writ of Error—Delay in Filing Return.
    A writ of error will not be dismissed for delay in filing the return if it is filed before the motion to dismiss is heard.
    3. Bill of Exceptions — Settlement—Judge Presiding out of His Circuit.
    Under 2 How. Stat. § 7613, requiring a bill of exceptions to be settled before the judge who tried the case, except in case of his death or resignation, the expiration of his term, or vacancy in office from other cause, the fact that the case was tried before a judge from another circuit, who is absent from the county, and whose attendance cannot be procured, does not authorize the settlement of the bill before the local judge, since the bill may be settled at the trial judge’s home.
    3. Same—Stipulation of Parties.
    Parties cannot stipulate as to the judge who shall settle a bill of exceptions.
    Error to Wayne; Simpson, J., presiding.
    Case by Bridget Hill against Matilda Hill for alienating the affections of plaintiff’s husband. There was a judgment for plaintiff, and defendant brought error. On motion to dismiss.
    Submitted April 27, 1897.
    Granted May 11, 1897.

      Flowers, May & Moloney (Charles H. Kline, of counsel), for the motion.

      George X. M. Collier, contra.

   Montgomery, J.

This is a motion to dismiss a writ -of error, based upon the ground that the writ was not returned on or before the return day, and upon the ground that no bill of exceptions has been properly settled in the case.

The first objection might be overlooked, on the authority of Woodmansie v. Hollon, 16 Mich. 379, and McBride v. Rea, 33 Mich. 347, if the bill of exceptions had been regularly settled.

It appears that the case was tried before Judge Simpson, sitting at the time in the Wayne circuit court, and the bill of exceptions was settled before Judge Hosmer. The statute (2 How. Stat. § 7613) provides that the bill of exceptions shall be settled before the judge who tried the case, except in case of his death, resignation, expiration of term of office, or vacancy in office from other cause. It is assigned as a reason for the settlement of the bill before Judge Hosmer that Judge Simpson was absent from Wayne county, and'his attendance could not be procured there. But the case might have been settled before him at his home. See Oliver v. Town, 24 Wis. 512; Ex parte Nelson, 62 Ala. 376. It appears that the attorneys for plaintiff assented to the settlement of this bill of exceptions before Judge Hosmer. But it has been repeatedly held that the parties cannot stipulate to a bill of exceptions. As the time has once been extended beyond the term, we have no doubt that Judge Simpson will, upon application, settle the bill, and, if a proper showing can be made, this court possesses the power to extend the time for suing out a writ of error for six months beyond the one year fixed by statute.

This motion will be granted, without costs to either party.

The other Justices concurred.


text:
    LISKA v. LODGE.

    Principal and Agent—Unauthorized Act—Estoppel.
    An owner of land, who signs a contract for its sale, brought to him by his agent, without reading it, is bound by a provision therein authorizing the purchaser to pay in merchandise, although the agent had no authority to insert the same.
    Appeal from Wayne; Carpenter, J.
    Submitted April 27, 1897.
    Decided May 11, 1897.
    Bill by Frank F. Liska and another against Frank T. Lodge for the specific performance of a land contract. From a decree for complainants, defendant appeals.
    Affirmed.
    Defendant owned the legal title to a subdivision in the village of Highland Park, Wayne county, which had been platted, and consisted of 248 lots. The property was in fact owned by 14 persons, each of whom owned an undivided one-fourteenth interest. Among them were Shelley & Simpson, a firm of real-estate agents. The lots were placed in the hands of this firm, as agents, for sale. Contracts were printed, leaving blank only the dates, names of the purchasers, description of the property, and price. Shelley & Simpson negotiated a sale of one lot to the complainants for the price of $900, Upon the margin of this contract, in typewriting, was the following:
    “The first party hereunto hereby agrees that he will take the amount due hereunder in merchandise, and that the amount so taken will aggregate at least $200 per year from date hereof. Attached to, and forming a part of, this contract.”
    Complainants were merchant tailors, and, before the failure of Shelley & Simpson, had made clothes for them and persons in their employ amounting to about $600. Shelley & Simpson had entered these payments upon their books as cash. Shelley & Simpson failed, and at the time of their failure were indebted to the defendant, or to the syndicate represented by him, $9,500. Upon learning of the failure, complainants called upon defendant to perform his contract. The defendant refused, alleging that he knew nothing of this provision of the contract, that Shelley & Simpson had no authority to make it, and that it was not binding upon him. Complainants thereupon filed this bill for the specific performance of the contract, having tendered in cash the balance due.

      Charles C. Stewart, for complainants.

      Edward Minock and Frank T. Lodge (in pro. per.), for defendant.

       Rehearing denied June 18, 1897.

   Grant, J.

{after stating the facts). This contract was signed by the defendant himself, and not by Shelley & Simpson as agents. It appears that they had no authority to sign contracts. When a sale was agreed upon, the contracts were taken to the defendant for execution. Defendant once or twice signed contracts in blank, leaving them to be filled out by Shelley & Simpson, upon the terms agreed upon. But this contract was evidently not one of those, if the testimony of complainants is true. The defendant, in his argument, treated the relation of Shelley & Simpson to this transaction as purely an agency, and as if they were authorized to sign contracts in the name of their principal. If this were so, and Shelley & Simpson had executed it as agents, the defendant would clearly be right. Shelley & Simpson had no authority to make such a contract, and the provision in question was of so unusual a character that it would not come within the scope of an agency to sell lands; and in such case the purchaser would act at his own .risk, it being his legal duty to inquire into the authority of the agent. But that rule does not apply here. If this contract was signed by the defendant with this provision written in, it is binding upon him. Upon the determination of this question must depend the result reached. There was no finding by the learned circuit judge, and we are unable to determine upon what basis he made his decree. Complainants testified that Shelley & Simpson brought them an unsigned contract without this provision in; that they declined to sign it; that Shelley & Simpson took it away, and, a day or two after, brought another contract, in duplicate, with this provision written upon the margin; that defendant’s signature was not then attached; that they (complainants) then signed the two; that they were taken away, and one of them was subsequently returned to complainants by Shelley & -Simpson, with the defendant’s signature attached. His signature was also attached to the duplicate, and retained among the papers of the syndicate in the office of Shelley & Simpson. The defendant, on his direct examination, testified that he did not sign this contract with this rider upon it, and that he never knew of the existence of such a contract until complainants called his attention to it after the failure of Shelley & Simpson. On his cross-examination the following question was asked:

“Then, as I understand, you emphatically deny that you signed that contract after it had been filled out ?
“A. Yes; as far as I can possibly recollect now.”

Mr. Lodge and his associates had the utmost confidence in the honesty and integrity of Shelley & Simpson. We think it far more probable that this contract was signed by the defendant without reading it, than that the complainants are mistaken in saying that the contract was signed by them before it was signed by the defendant and delivered to them. If Mr. Lodge signed it with this provision in it, it is, of course, binding upon him, whether he read it or not. It was his duty to examine the contract, to know what he signed, and complainants cannot be made to suffer for this neglect upon his part.

It follows that this decree must be affirmed, with costs.

The other Justices concurred.


text:
    HOYT v. CLEVELAND, CINCINNATI, CHICAGO & ST. LOUIS RAILWAY CO.
    Railroad Companies—Passenger Trains—Failure to Stop At Station—Penalty.
    That a regular train has already taken on more passengers than it can properly accommodate, and that others are waiting at a regular station to board the train, rendering it, in the conductor’s judgment, unsafe to stop, does not constitute a “legal or just excuse” for a failure to discharge a passenger having a ticket for such station, within 1 How. Stat. § 3324, providing that a railroad company, in case of its failure, without a legal or just excuse, to deliver a passenger at his destination, shall be liable to a penalty of $100.
    Error to Berrien; Coolidge, J.
    Submitted April 28, 1897.
    Decided May 11, 1897.
    Debt by Lewis Hoyt against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company to recover the statutory penalty for failure to discharge plaintiff at his destination. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff sued to recover a penalty of $100, under 1 How. Stat. § 3324. This statute requires all railroad corporations to transport and discharge passengers who offer themselves for transportation, at their destination, under a penalty of $100, to be recovered in the action of debt. The only defense to such action provided by the act is “a legal or just excuse.” The case was tried before the •court without a jury, and the finding of facts is as follows:
    “The defendant, on the 4th day of July, 1895, was a railroad company operating a line of railroad in Berrien county, and on that day the plaintiff, a resident of Niles, purchased a regular passenger ticket for transportation from the city of Niles, a station on said road, to Eau Claire, a regular stopping station on said road, situate about 13 miles north of Niles. The plaintiff took “the regular morning train on said day, about 9 o’clock. Excursion rates had been advertised by the defendant for the day, and the ticket was purchased by the plaintiff at excursion rates. The train which the plaintiff took did not stop at Eau Claire, but proceeded, without stopping, to the station of Hartman, where a stop was made, and plaintiff got off the train and walked back to Eau Claire. It appears by the evidence that the train was made up of three passenger coaches, each of which had a seating •capacity of 60 persons, and a combination coach, which had a seating capacity of 30 persons. When the train reached Niles, there were 50 passengers on the train. There the train waited 40 minutes, and 412 passengers, who had purchased tickets, boarded the train. At Berrien Center, a station 10 miles north of Niles, more passengers were received, so that, when the train left Berrien Center, the train, still consisting of three passenger coaches and one combination car, had on 541 passengers. The train being badly crowded, the conductor then made up his mind that it would be dangerous to stop to receive -any more passengers, and so directed the engineer not to stop again until the train reached Benton Harbor. At Eau Claire a large crowd had collected upon the platform at the station to take the train, but the train, under the directions given by the conductor to the engineer, ran through the village, without stopping, at the rate of about four miles an hour. It appears from the testimony of J. A. Courtright, the train-master of the defendant corporation, whose business it was to look after the train service - an dv provide sufficient cars and trains to handle passengers, that on July 4, 1895, there were 250 miles of road in the Michigan System of the defendant’s road, and that there were celebrations at many stations on the line of the road that day. Estimates of the number of passengers likely to want transportation were made by the agents of the company, and sent to Courtright the night before. Upon these estimates, Courtright apportioned his passenger equipment. There were 42 passenger coaches and seven baggage cars provided for the Michigan Division, and these would have been sufficient to have handled the passengers reported to the train-master by the agents. These cars had a seating capacity of 2,730. As a matter of fact, 6,343 passengers were transported on the Michigan Division on the day in question. According to the testimony of Mr. Courtright, the agents on that part of the road which runs from Elkhart to Benton Harbor reported a probability of 250 passengers for the day in question. The morning train would have carried that number comfortably.”
    The finding of law was that the defendant was liable.

      Samuel H. Kelley and C. E. Cowgill, for appellant.

      George A. Lambert, for appellee.
   Grant, J.

{after stating the facts). The contention of the defendant is that it had taken reasonable precautions on the day before to ascertain from its agents at various points along its road their estimates of the number of passengers likely to present themselves for transportation, and that the unexpected number presenting themselves at Niles and taken on board furnished a legal excuse for not stopping at Eau Claire and letting the plaintiff off. The argument is that it was unsafe to stop there, where more passengers were waiting to get on, and that common prudence dictated the course taken by the conductor. We cannot concur in this contention. The defendant had furnished a train with a seating capacity of 210. It had taken on 462. This was a condition of affairs for which it alone was responsible. If it had refused to take on at Niles any more than it had reasonable accommodations for, and had refused to take the plaintiff for that reason, a different question would be presented, upon which we express no opinion. If the conductor had stated before leaving Niles that, on account of the excessive number, the train would not stop at other stations, and the plaintiff had chosen to get on board, possibly the defendant might have been excused. But the conductor knew that this was a regular train, and that passengers were liable to buy tickets for intermediate stations. Notwithstanding the crowded condition of the train at Niles, the conductor stopped at Berrien Center, a station between Niles and Eau Claire, and took on more passengers. The defendant having made a contract with plaintiff to carry him to Eau Claire, the crowded condition of the train, for which it alone was responsible, is not the “legal or just excuse” named "in the statute. The case of Reed v. Railvay Co., 100 Mich. 507, has no application here, because the condition there was caused by a severe storm, which the company could not anticipate.

The judgment is affirmed.

The other Justices concurred.


text:
    LOWRIE v. GOURLAY.
    Land Contracts—Default—Estoppel.
    Where a purchaser of land under a contract providing that payments should be forfeited in the event of his default, seeks to obtain relief in equity from the penalty of his default by bill for specific performance, and suffers his bill to be dismissed because of his refusal to pay the balance due upon the contract, he is thereafter estopped from maintaining an action at law to recover the forfeited payments and the prospective profits.
    Error to Wayne; Frazer, J.
    Submitted April 27, 1897.
    Decided May 11, 1897.

      Assumpsit by Charles J. Lowrie. against James Gourlay and others for an alleged breach of a land contract. From a judgment for plaintiff, defendants bring error.
    Reversed.
    The parties to this suit entered into a written contract December 6, 1889, by which the defendants agreed to sell to plaintiff certain parcels of land for $700,—$240 on delivery of the contract, and the remainder in three semiannual payments, with interest. It also provided that, upon failure of the plaintiff to perform the contract, the defendants might elect to consider it at an end, and in that event all payments and improvements made by the plaintiff were to be deemed forfeited as stipulated damages for the nonperformance of the contract. Plaintiff’s declaration sets up this contract in hœc verba, alleging the payment of the $240; the further payment of $179.83, and tender of the balance; the sale of the land to other parties for a largely increased price; and damages, consisting of the portion of the purchase price paid, and the profits he might have made by a rise in the value of the land. The declaration also contains the common counts. Defendants pleaded the general issue, with special notice of a former suit in equity upon the same cause of action.
    The undisputed facts are that plaintiff neglected and refused to pay the second installment when due. Defendants brought suit therefor in justice’s court. He defended. They recovered a judgment. He appealed to the circuit court, where trial was had, and judgment was again rendered for the defendants. Execution was issued, but no property, either of plaintiff or his sureties, could be found upon which to levy. Execution was finally issued to the sheriff of Tuscola county, and collected. Plaintiff made none of the other payments as they became due. On May 26, 1892, the defendants, treating the contract as abandoned by the plaintiff, sold the lands to Robert and John Kestell. Plaintiff never tendered to the defendants or the Kestells the amount due upon the contract. On August 6, 1892, plaintiff filed a bill in equity in the circuit court for the county of Wayne, in which he set up the contract, alleging that he had always been willing to comply with the terms of said agreement; that he had offered to pay the amount due; that the defendants had sold the lots to the Kestells; and prayed that they be decreed to account to him for the actual amount of cash they had received for the property, less the amount that might be found due upon the contract; and also for any increase in the value of the lots. The bill also contained a prayer for general relief. The Kestells were made parties to that bill. Both the Kestells and the defendants answered, offering to accept the amount, due and execute a deed, and alleging that they had always been ready and willing to do so. Plaintiff refused to pay the amount due and accept a deed. His bill was thereupon dismissed.

      Charles C. Stewart, for appellants.

      James H. Pound, for appellee.
   Grant, J.

(after stating the facts). Plaintiff has no standing in a court of law. He neglected to pay and has never tendered the amount due. The court cannot make a contract for him. Defendants have never been in default. If he desires to be relieved from the legal effect of his default in making payments, a court of equity is the proper and only forum in which he can get relief. He entered that forum, and filed a bill under which he was entitled to specific performance. This was tendered him and declined. He is therefore estopped to maintain a suit at law.

Judgment reversed, and no new trial ordered. Defendants will recover the costs of both courts.

The other Justices concurred.


text:
    PEOPLE v. PIPER.
    1. Witnesses—Exclusion prom Court Room—Evidence on Rebuttal.
    A witness is not disqualified from testifying for the prosecution on rebuttal in a criminal case, by reason of his having remained in the court room after an order excluding witnesses, where it was not known or anticipated when the order was entered that his testimony would be required.
    2. Criminal Law—Homicide—Self-Defense.
    The law of self-defense is inapplicable to a case where the respondent told the deceased that, if he repeated an accusation of theft, he would kill him, and thereupon passed out of the room and procured a revolver, returning with the evident purpose of compelling the deceased to withdraw the charge, and immediately afterwards shot him while he was stooping to recover a cigar which respondent had struck from his hand,—even though respondent thought that the deceased was making a movement to take a revolver from his pocket.
    Error to recorder’s court of Detroit; Chapin, J.
    Submitted April 29, 1897.
    Decided May 11, 1897.
    John Piper was convicted of murder in the second degree, and sentenced to life imprisonment in the state prison at Jackson.
    Affirmed.

      George X. M. Collier, for appellant.

      Allan H. Frazer, Prosecuting Attorney, for the people.
   Grant, J.

The respondent was convicted of murder in the second degree.

1. Several assignments of error are directed to the admission and rejection of testimony. They were fully argued in the briefs of counsel and orally. We have carefully examined them, and find no error in the rulings of the court in this regard. A discussion of them would not be of value as a precedent or as a guide in future cases. There is no good reason for writing and publishing opinions which can be of no valuable aid in the trial of other cases.

A Two witnesses were called by the prosecution in rebuttal. Their names were not indorsed upon the information. An order had been entered by the court excluding all the' witnesses from the court room during the trial. These two witnesses had been in the room during a part of the time while the trial was in progress. The prosecuting attorney did not anticipate or know that they would be witnesses. There was no error in the admission of this testimony.

3. Complaint is made that the court did not correctly state the rule of law as to self-defense. The court did instruct the jury as follows:

“If you find from the evidence in this case that Piper killed the deceased in self-defense, honestly believing his own life to be in jeopardy, or that he was in imminent danger of receiving serious bodily injury at the hands of the deceased, and that he used no more force than was necessary to protect himself, then it would be justifiable homicide; and under such circumstances, of course, the respondent would not be guilty.”

This is a correct statement of the law. The respondent’s counsel requested the following charge:

“I charge you, as a matter of law, that if you find, as a matter of fact, that the respondent, John Piper, actually believed that William Doston, the deceased, made a motion to draw his revolver from his hip pocket, with the intention of taking the life of John Piper, or to do him great bodily harm, by shooting him, the respondent, John Piper, had a lawful right to kill his assailant, to save his own life or prevent the intended bodily harm; and if you believe, as a matter of fact, that the respondent actually believed his life was in danger, and fired the fatal shot to save his own life, it is your duty to render a verdict of not guilty.”

This was refused. Ifwas sufficiently covered by that portion of the oral charge above given.

At the request of the prosecution, the court also gave the following charge:

“Before a person can avail himself of the defense that he used a weapon in the defense of his life, he must satisfy the jury that that defense was necessary, that he did all he could to avoid it, and that it was necessary to protect his own life, or to protect himself from such serious bodily harm as would give him reasonable apprehension that his life was in immediate danger. Ill will of deceased, and former quarrels and affrays, could have nothing whatever to do with respondent’s peril, however hostile deceased may have been, and however many quarrels and affrays the parties may have had, if deceased, by his acts and cries, did not threaten peril to respondent. He would not be authorized by law to infer peril on account of ill will or prior contests.”

He further gave the following request of respondent:

“If you find, as a matter of fact, that the deceased, Doston, had the general reputation of a quarrelsome and dangerous man, and, further, that Doston was in the habit of carrying a revolver before and after he was a deputy sheriff, and that he had at one time made a brutal attack upon the respondent, and made threats against him, and that these threats came to the knowledge of the respondent, I charge you that, as a matter of law, you have a right to consider this testimony as bearing upon the question of whether they had an influence upon the mind of the respondent, and created fear in his mind as to the danger of receiving serious bodily injury, and whether he acted honestly and in good faith that he must fire the shot to save his own life, or to save himself from further great bodily harm.”

To this request the court added:

“You must.be satisfied, however, gentlemen, that the deceased had assailed him, or was about to assail him, and the respondent shot to protect himself.”

We think that these requests were more favorable to the respondent than he was entitled to under the facts of this case. It is very questionable whether the claim of self-defense should have been submitted to the jury at all. The affray in which the respondent had been beaten by the deceased and his brother occurred about three years before. The matter was amicably settled, the deceased and his brother paying the respondent damages for the assault, after which the respondent was employed by them in their saloon, and was so employed at the time he killed the deceased. The deceased, the respondent, and some others had been together during the night previous to the killing of the deceased. Neither had any weapons at the time the dispute began. The parties came into the saloon of the deceased and his brother about 8 o’clock in the morning. The deceased charged Piper with having taken a diamond pin from one Aldrich, who was with them during the night. Respondent denied having taken the pin, and, upon finding that the deceased was evidently in earnest in charging him with having taken it, he said, “If you say that I took that pin, I will kill you.” He then threw down his coat, went out of the room into the room where there was a cigar stand, passed around the cigar stand, went behind the bar, got his revolver, went back into the saloon, and flourished it at the deceased, striking his hand and knocking his cigar out of it. The deceased persisted in saying that he took the pin, and, while he was in the act of stooping to pick up the cigar, the respondent fired two or three shots at him, from the effects of which he died the same day. The respondent admitted getting the revolver and going back into the room. He claims that when he fired he thought that the deceased was making a motion to take a revolver from his pocket. When the respondent went out of the room, he was within three steps of the front door leading to the street, and could have gone out. He deliberately got his revolver and returned for the evident purpose of compelling the deceased to withdraw the charge. There was no occasion for arming himself with a deadly weapon. His counsel, in the oral argument, stated that he did not expect, even if a ,new trial were granted, to acquit the respondent of any crime. This was an admission that he was guilty of manslaughter. While this admission is not binding upon the respondent, it shows that'even in the opinion of his. counsel the claim of self-defense cannot be maintained, and in this opinion we concur. Where one kills another in self-defense, he is not guilty of any crime. The deceased had made no threat, and had shown no disposition to provoke an affray. The law does not recognize the right of one to assault another because he had accused him of a crime. Under his own testimony, the respondent was rightly convicted.

The conviction is affirmed.

The other Justices concurred.


text:
    PEOPLE v. WELLS.

      1. Criminal Law—Instructions—Reasonable Doubt.
    The court properly refused to instruct the jury in a criminal case that if a reasonable doubt of any of the facts necessary to convict the accused was raised in their minds by the-evidence itself, or by the “ingenuity of counsel” upon any hypothesis reasonably consistent with the evidence, they should acquit.
    2. Same—Disorderly Houses—Conduct oe Inmates.
    Upon a trial for keeping a house of ill fame an instruction that, if the respondent and her associates had always been well-behaved when on the streets, the jury ho aid take that fact into consideration as to their chastity, as, if they were unchaste, they would be liable to demonstrate acts of rudeness, or, in some way, throw out inducements, was properly refused, as invading the province of the jury.
    3. Same—Reputation—Previous Misconduct.
    One convicted of keeping a house of ill fame cannot com plain that the jury were instructed that, “however bad she may be, or however guilty of other offenses, the question. is whether she is guilty of the offense charged; ” the instruction having been in her interest, to prevent undue weight being given to evidence which had appeared in the case affecting her character for chastity, and showing that she had previously been accused of selling liquor without a license.
    4 Same.
    An instruction on a criminal trial that the questions for the jury to determine “ are cold, plain questions of fact,” is not erroneous as leading the jury to think that respondent is bad, and should be found guilty on general principles.
    Error to Macomb; Eldredge, J.
    Submitted April 29, 1897.
    Decided May 11, 1897.
    Sadie Wells was convicted of keeping a house of ill fame, and sentenced to imprisonment for two years in the Detroit House of Correction.
    Affirmed.

      Franklin P. Monfort (George X. M. Collier, of counsel), for appellant.

      Fred A. Maynard, Attorney General, and John A. Weeks, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of the offense of keeping a house of ill fame. The record contains 49 assignments of error. Not all of them are discussed in the brief of counsel, and we shall still further limit the discussion in this opinion to such questions as may have some possible interest to the profession. It was urged that there was not sufficient evidence to justify a verdict. It will suffice to say that we think the evidence was not only abundant, but overwhelmingly convincing. It was, however, of a character which would render it improper to set it out at length in this opinion. An examination of all the exceptions to testimony satisfies us that no error was committed in this regard.

Error is assigned on the refusal to give respondent’s fifth request, which reads as follows:

“Upon the trial of a criminal case, if a reasonable doubt of any of the facts necessary to convict the accused is raised in the minds of the jury by the evidence itself, or by the ingenuity of counsel upon any hypothesis reasonably consistent with the evidence, that doubt is decisive in favor of the prisoner’s acquittal. ”

This request was properly refused. The jury should not be instructed to regard the ingenuity of counsel as equivalent to evidence. The.court did charge the jury upon this subject as follows:

“But, in cases of circumstantial evidence, each circumstance necessary to constitute a chain of evidence of guilt should, to justify conviction, be established by proof beyond a reasonable doubt; and, if you can reconcile the circumstances in evidence on any other theory than that of guilt on the part of respondent, your duty would be to acquit.”

This sufficiently covered the ground.

Error is also assigned on the refusal to give the thirteenth of respondent’s requests, which reads as follows:

“If it is shown that the respondent and her associates have always, when on the streets and about where they went, always been good-behaved, you should take that into consideration as to their chastity, as, if they were unchaste, they would be apt to demonstrate acts of rudeness, or, in some way, throw out inducements for persons.”

We think this was also properly refused. To have given the instruction would have been to usurp the functions of the jury. The court can hardly know judicially the facts assumed by the proposed instruction.

Complaint is made of an instruction as follows: ’

“However bad she may be, or however guilty of other offenses, the question for you to determine here is whether she is guilty of the offense charged, and has that guilt been shown beyond a reasonable doubt ? ”

There was no error in this instruction. It had crept out in the testimony that respondent had been charged with selling liquor without a license, and testimony affecting • her character for chastity had been given. This instruction was in her interest, and to ward against the jury giving undue weight to those items of testimony which tended to show her guilty of other offenses.

The court said to the jury that the questions for their determination were cold, plain questions of fact. Counsel criticise this instruction as follows:

"The court could have said to the jury, ‘ The questions for you to decide are questions of fact;' but when he says. ‘So really the questions for you to determine are cold, plain questions of fact,’ emphasizing the adjectives ‘cold’ and ‘plain,’ he erroneously hardened the hearts of the jury, and they doubtless thought from this she was bad, and to be found guilty upon general principles, and not entitled to common consideration.”

We are unable to see how this deduction is made, and we think the instruction not open to the criticism.

The other questions raised do not require discussion.

Conviction affirmed.

The other Justices concurred.


text:
    STEARNS v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Pleading—Declaration on Contract—Statute op Frauds.
    An averment in a declaration that a contract was made between the parties to the suit imports a valid contract, and renders proof admissible to show that the contract was in writing, when essential to its validity under the statute of frauds.
    2. Contracts—Mutuality—Consideration.
    An employer’s agreement, in consideration of an employé’s compromising a claim for personal injuries, to retain the latter in his service for life, or as long as he is able to do the work required, is enforceable, although the employé does not bind himself to continue in the employment.

      3. Same—Suspension of Agreement—Reservation of Rights.
    Such a contract is not terminated by the employé’s resigning to accept another position, which he holds for a few months, and, becoming dissatisfied, returns to his original employment, where it was agreed by the employer’s superintendent, with whom the employé was required to deal, before the resignation was accepted, that, if he did not like the new place, he could have his old one again upon the same conditions that existed before he left it.
    4. Same—Authority of Agent.
    Under such circumstances, the authority of the superintendent to make a new contract upon the same terms as the original is not involved, his engagement being equivalent to granting the employé an indefinite leave of absence, the latter reserving his rights under the original contract.
    5. Same—Damages.
    The measure of damages for the breach of an agreement to employ a person for life, or during his ability to work, is the amount that he would have earned up to the time of trial at the contract price, and the present worth of what he would be able to earn in the future, so long as he would, in the ordinary course of affairs, be able to perform the service, less any amount that he would be able to earn in other employment.
    Error to Lenawee; Lane, J.
    Submitted April 30, 1897.
    Decided May 11, 1897.

      Assumpsit by George C. Stearns against the Lake Shore & Michigan Southern Railway Company for the breach of a contract of employment. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      C. E. Weaver (George C. Greene and O. G. Getzen-Danner, of counsel), for appellant.

      Watts, Bean & Smith, for appellee.

       The validity and effect of a contract for permanent employment is considered in a note to Carnig v. Carr, (Mass.) 35 L. R. A. 512.

   Montgomery, J.

The plaintiff brought this action to recover damages for the breach of a contract of employment. The declaration averred that, in the year 1872, plaintiff, while in the employ of the defendant, received serious personal injuries; that a claim was made against the defendant company; that in settlement of this claim the defendant paid him the sum of $175, and at the same time entered into an agreement to employ him in the capacity of train baggage master on the train running between Jackson and Adrian, at a salary of $47.50 per month, during his natural life or his ability to do the work; that the defendant had on the 1st of April, 1895, discharged plaintiff from employment, and has ever since refused to employ him or to pay him. The case was tried before a jury, and a verdict rendered sustaining the plaintiff’s claim. Defendant moved for a new trial, which was refused, and has now brought the case here for review on error. The case is, in many of its aspects, similar to the case of Brighton v. Railway Co., 103 Mich. 430, and reported on second appeal at page 217, ante. We shall not discuss now the points decided in that case.

1. The declaration did not state whether the contract counted upon was in writing or rested in parol. Defendant contends that an oral contract would not be valid, and that the declaration should have described the contract as one in writing. The rule is clearly settled the other way. It is not necessary in pleading to aver that a contract required by the statute of frauds to be in writing was reduced to writing. It is enough to aver that a contract was made, which imports a valid contract, and admits the requisite proof to show its validity. Harris Photographic Supply Co. v. Fisher, 81 Mich. 136.

3. It is insisted that the contract is not enforceable, because not mutual; that the plaintiff was not bound to work for any stated time for the defendant. In a case where no consideration passed for the employment, there might be force in this contention; but in this case, under the proofs, a valuable consideration was paid to the defendant for the conditional agreement which the defendant saw fit to enter into, leaving it optional with the plaintiff to continue in defendant’s employ,—the engagement of the defendant resting, not upon the consideration of any promise by the plaintiff, but upon a consideration actually paid in hand at the time of the engagement, namely, the compromise of the disputed claim. Upon this question the following cases are in point: Pennsylvania Co. v. Dolan, 6 Ind. App. 109; Harrington v. Railway Co., 60 Mo. App. 223; Brighton v. Railway Co., supra.

3. In 1889 the plaintiff entered the railway mail service, and at that time tendered his resignation to the defendant, which was accepted. At the expiration of four months he applied for re-employment, and was again employed, and continued in the employment until his final discharge, in 1895. The defendant insists that this had the effect to terminate the contract relied upon by plaintiff. This would undoubtedly be true were it not for the fact that the plaintiff testifies that, prior to entering the mail service, he had a talk with the division superintendent, and that he went into the mail service upon the understanding and agreement that, if he did not like the service, he should return right back to the same job he had, upon the same conditions that he quit, and that he would not have gone into the mail service had it not been for this reservation of rights accorded him by. the company. It is contended by the defendant that the division superintendent had no power to make such a contract, but the answer to this is that he is the person with whom the plaintiff was required to deal, and that the engagement did not amount to the making of a new contract, but was, in effect, granting an indefinite leave of absence to the plaintiff, the plaintiff reserving his rights under the former contract.

4. The plaintiff was permitted to recover as damages the amount which he would have earned up to the time of the trial, at the rate of $47.50 per month, and the present worth of what he would be able to earn in the future, so long as he would, in the ordinary course of events, be able to perform the service, less any sums which he would be able to earn in other employment; the court distinctly stating to the jury that it was the duty of the plaintiff not to lie idle, and that the value of his services in any employment which he could reasonably get should be deducted from the allowance which the jury would otherwise make. Some verbal criticism is made upon the instruction relating to the measure of damages,- but we think the jury could not have misapprehended the meaning of the court, and that the charge, as a whole, is sufficiently clear. But it is also urged that the plaintiff could not recover for prospective damages. This question is fully considered in the cases of Pennsylvania Co. v. Dolan and Brighton v. Railway Co., supra.

5. A motion for a new trial was made, based in part upon the ground that the verdict was not supported by the evidence. The circuit judge, who saw the witnesses, was of the opinion that the verdict was not so clearly against the weight of the evidence as to justify an interference with the verdict. We are impressed that the evidence was too nicely balanced to authorize us to say that the jury must have reached the result which they did through prejudice. In numbers, the witnesses of the-plaintiff to the making of the contract exceeded those-offered by the defendant; and, while the circumstances, of corroboration may have been greater with the defendant than on the side of the plaintiff, we would not be justified, upon this record, in interposing our judgment in place of that of the tribunal to whom the decision of the question of fact was, under proper instructions, committed.

We have not discussed at length all the assignments of error, but a careful examination of the full brief of defendant’s counsel has failed to disclose any error which is prejudicial to the defendant.

The judgment will be affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    CLARK v. BOARD OF EDUCATION OF DETROIT.
    Public Officers—Resignation.
    TKe resignation, of a public officer is not complete until it has been accepted by the proper authority.

      Certiorari to Wayne; Carpenter, J.
    Submitted April 27, 1897.
    Decided May 11, 1897.

      Mandamus by John E. Clark to compel the board of education of the city of Detroit to recognize him as a member of such board. From an order granting the writ, respondent brings certiorari.

    Affirmed.
    The relator tendered to the mayor of the city of Detroit his resignation from the office of “member of the board of education,” to take effect on November 15, 1896, and gave notice to the board of his action. Before November 15th he was requested by the mayor to reconsider his resignation, and continue to hold the office, and, at his request, the mayor said the same to him in writing on December 14th, as follows:
    ‘ ‘ I desire to say that your resignation has not been accepted, and would request that you serve out your time, if consistent with your private affairs.
    “H. S. Pingree, Mayor.”
    On December 16th relator notified the secretary of the board that the mayor had refused to accept his resignation, and upon the issue, “Did the mayor expressly accept the resignation of the petitioner on or before December 14, 1896 ? ” the circuit court found that he did not. On February 11th the board refused to recognize relator as a member of the board, whereupon the relator obtained from the circuit court an order for a mandamus to compel his recognition, which order is brought here by certiorari.

      S. S. Babcock, for relator.

      W. E. Baubie, for respondent.
   Hooker, J.

(after stating the facts). Upon the facts above stated, the order of the learned circuit judge was warranted. While there is not absolute harmony upon the subject, the weight of authority accords with his view of the case. The subject will be found discussed in Edwards v. U. S., 103 U. S. 471; Throop, Pub. Off. § 408 et seg.; 19 Am. & Eng. Enc. Law, 562r. The case of Edwards v. U. S., supra, arose over a Michigan office, and much that is there said is applicable here.

The order of the circuit court is affirmed.

The other Justices concurred.


text:
    BOLTWOOD v. MILLER.

    1. Estates oe Decedents — Administrators — Sale oe Personalty—Power to Warrant.
    It is within the power of an administrator to warrant the soundness of personal property belonging to the estate upon disposing of the same at private sale.
    2. Same—Right oe Recoupment.
    One who purchases personal property from an administrator under an express warranty as to its quality may recoup damages arising from a breach of the warranty in an action for the purchase price.
    3. Same —Contracts oe Deceased — Commissioners on Claims.
    A claim for damages arising from the breach of a warranty as to an animal delivered by an intestate to the claimant under a contract providing that, if the animal should not be returned within a given time, a specified amount would be charged to the claimant as the cost of the animal, is a claim against the estate, which must be presented to the commissioners, if any are appointed therein, as required by 2 How. Stat. § 5901, although the intestate died before the time mentioned, and the title did not pass to the claimant until after his failure to return the animal at such time.
    4. Same—Claims—When Barred.
    The failure to present a claim arising against an intestate in his lifetime, to the commissioners of his estate, does not prevent the owner from availing himself thereof as a set-off in a suit against him by the assignee of the administrator of the estate, under 2 How. Stat. § 5901, providing that every person having a claim against deceased, proper to be allowed by commissioners, who shall not exhibit his claim to them within the time limited for that purpose, shall be barred from recovering the same, or from setting it off in any action whatever, where it does not appear that commissioners have ever been appointed.
    Error to Kent; Grove, J.
    Submitted January 13, 1897.
    Decided May 25, 1897.

      Assumpsit by George S. Boltwood, assignee of George W. Longwell, administrator of the estate of George E. Breck, deceased, against Jacob L. Miller, for the purchase price of certain sheep. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Osborn, Mills & Master, for appellant.

      Wolcott & Ward, for appellee.

       Rehearing denied July 16, 1897.

   Hooker, J.

Breck, a dealer in sheep, sold to the defendant a ram named “Sir Thomas.” The defendant claims that this sale was accompanied by a warranty, and this the plaintiff, who is assignee of Breck’s administrator, disputes. The price of Sir Thomas was $105, for which defendant gave his note, which, getting into the hands of a bona fide holder, he subsequently paid. A few months after the sale, the defendant wrote Breck, complaining that Sir Thomas was a failure as a stock getter, and on November 30, 1894, Breck wrote a letter expressing confidence in Sir Thomas, and offering to send another, which he stated to be “a ram that proved very successful this fall, and which is an excellent sheep.” On December 8th Breck wrote as follows:

“December 8, 1894.
“Mr. Jacob L. Miller,
“Caledonia, Mich.
Dear Sir: Your letter came a day or two ago, but I was busy in court, and did not read it until today. As today is Saturday, I will wait until Monday, and ship you one of my best and surest stock rams; but he is no more so than Sir Thomas has always been considered. There must be something the matter with your ewes, or the water on the place, or something of the kind. * * * However, I will let you take this ram, to be returned to me in good condition, and free of expense, on or before the 1st day of March, and I think you should keep him until that time for the use of him, and I will charge you nothing if he is returned in good condition; but, if you should not return him, he will cost you $40, and I will make the charge in that way on my books.
“Yours truly,
“George E. Breck.”

This ram was received by the defendant, and it is claimed that he proved of no value as a stock getter, that he got but 13 lambs, where he should have gotten 33, and, of these, 7 died, and 5 were worthless, by reason .of the glute, which they inherited from the ram; and that the defendant did not discover this condition of the ram or his lambs until April, when it was past the time set for his return. Neither ram was returned. Breck died December 10, 1894, and George W. Longwell was appointed and qualified as administrator. Some negotiations were had relating to Sir Thomas and the other ram, but the administrator refused to do anything about the matter. The defendant purchased from the administrator some ewes, and wanted to have .their cost turned upon his claim growing out of the former deal, but to this Longwell would not consent. These two ewes were bought on February 19th, at $33.50 each. They were never paid for. This action is brought for the price of the second ram, $40, and of the two ewes, $65. Upon the trial the defendant sought to recoup damages as follows:

First, damages occasioned by the failure of the two rams to comply with the warranty which he alleges them to have been purchased under.

Second, damages upon the ewes, which he claims were not of the character represented.

Third, damages growing out of misrepresentation concerning the sire of the lambs born of these two ewes, and with which they were pregnant when bought.

These alleged warranties were oral, and it was therefore for the jury to determine whether there were any such warranties or not. It is said that this is not so as to the second ram, which was purchased through correspondence, and that it was for the court to construe this contract. This would be so were it not for the fact that there is opportunity for the claim that he was delivered by Breck with the understanding that, if the defendant should conclude to keep him, he should be applied, at the price of $40, on the price of Sir Thomas, and with the expectation that Sir Thomas would be returned, or, if not returned, that the price- of the second ram ought to be subject to reduction by damages sustained through the breach of warranty of Sir Thomas. The court allowed the jury to consider the question of damages for inferiority of the lambs and of the rams, and the failure to get lambs from the defendant’s flock. In this connection he submitted to the jury the question whether the purchase of the rams constituted one transaction. The plaintiff appeals, and raises several questions, the following being the more important:

1. That there could be no recoupment growing out of the purchase of Sir Thomas.

2. That there could be no recoupment against the administrator for a breach of contract made with deceased in his lifetime.

3. That there could be no recoupment and set-off of any claim without first presenting it for allowance to commissioners on claims.

Counsel contend that it was not within the power of the administrator to bind the estate by a warranty of soundness, upon sale of a personal chattel at private sale. The only authority cited in support of this proposition is 7 Am. & Eng. Enc. Law, 296, and cases there cited. An examination of these shows that some of them involve the sale of land, which an administrator can only sell under statutory authority, and generally under a license from a court, by neither of which is he usually authorized to do more than sell the interest of the intestate. Such were the cases of Sumner v. Williams, 8 Mass. 162 (5 Am Dec. 83); Lynch v. Baxter, 4 Tex. 431 (51 Am. Dec. 735). The case of Mockbee’s Adm’r v. Gardner, 2 Har. & G. 176, decides that an implied warranty of title does not arise against an administrator who sells a slave. The opinion, however, ventures the statement that—

“Where fraud exists, or there is an express warranty, tie would undoubtedly be personally answerable to a purchaser in case of eviction; * * * and, while this exception from the general principle exists in their favor, we by no means intend to assert that they would not be answerable, in case of a failure of title, while the purchase money for the property sold remained in their hands undistributed and unadministered.”

See, also, Joslin v. Caughlin, 26 Miss. 134, 142. Several cases hold that an administrator may bind himself personally in a sale of property by a warranty. See Buckels v. Cunningham, 6 Smedes & M. 358, 365; Sumner v. Williams, 8 Mass. 162 (5 Am. Dec. 83). The case of Ramsey v. Blalock, 32 Ga. 376, holds that “an administrator cannot bind the estate of his intestate by a warranty of the soundness of an article sold by him.” The “article” in this case was a slave, and perhaps the use of the word “article” implies that it was a chattel, instead of realty, as considered in some States; but we have not the means at hand of determining whether this decision turned on a statute, or was thought to enunciate the common-law rule. See 2 Williams, Ex’rs (7th Am. Ed.), 133, note, where it says the estate is not bound by the warranty of an administrator. In the case of Craddock v. Stewart’s Adm’r, 6 Ala. 77, 80, it was held that at common law “an administrator, in virtue of his powers as such, can make a warranty of the soundness of personal property belonging to the intestate’s estate.” We are of the opinion that this states the better rule. See White’s Heirs v. White’s Adm’rs, 3 Dana, 374.

We see no legal impediment to the recoupment of damages in a suit upon a contract made by the administrator, as a claim upon such a contract is not a matter to go before commissioners. The sale of the two ewes was a contract of that kind. Willard v. Fralick, 31 Mich. 431. The same would be true of the purchase of the second ram, if the plaintiff is right in his claim that it was purchased from him, and not from Breck. We discover nothing to show that there were any negotiations between Longwell (the administrator) and the defendant, looking towards a sale of the ram, and counsel only claim such sale as the result of the application of legal principles. All of the negotiations occurred before Breck died, and the property was delivered by him. But it is said that it was a bailment with an option, and only became a sale when the defendant exercised his right to purchase, and signified his intention by keeping the animal beyond March 1st; that until that time no title passed. It cannot be gainsaid that the title remained in Breck and the administrator, but does it follow that the contract relations were between the administrator (instead of Breck) and the defendant? The contract was complete before Breck died, and the administrator had only to carry it out. He made no promise, nor did the defendant make any to him. All promises were made before Breck’s death. Even the conditional promise to pay was implied by his receiving the ram, and it became absolute when the time transpired without the return of the animal. If we are able to say it was the contract of the administrator, it must simply be because litle did not .pass, and the promise to pay become absolute, before Breck died. What was this promise which became absolute? Can it be determined from anything that the administrator did or .said? Are we to say that it was a promise to pay cash, and that it was unconditional? May we not inquire whether it was a promise to pay in some other commodity, or to some ether person, or was subject to some rights growing out of the bargain under which the ram was delivered, and possibly in pursuance or modification of, and therefore a part of, such first contract ? And, if we may, does it not follow that the claim that this was a contract with the administrator is untenable ? The essence of the -transaction occurred without his intervention, and before his official existence. To our minds, it is clear that the contract relations, as to the rams, existed and were complete before Breck died; and the rights of the defendant fall within the category of claims against a deceased person, rather than those acquired during and in course of the settlement of the estate. McKeown v. Harvey, 40 Mich. 226.

Were Breck living, and a party to this litigation, we should have no doubt that the questions relating to both rams would be for the jury; and we see no reason why the same is not true in this case, unless the failure to present defendant’s claim to commissioners precludes it. The case of Quinn v. McGovern, 97 Mich. 114, discusses a similar question and the statute (2 How. Stat. § 5901) which is relied on by plaintiff in this case, the section being as follows:

“ Every person having a claim against a deceased person, proper to be allowed by the commissioners, who shall not, after the publication of notice as required in the second section of this chapter, exhibit his claim to the commissioners within the time limited by the court for that purpose, shall be forever barred from recovering such demand, or from setting off the same in any action whatever.”

In the present case it does not appear that commissioners on claims in the estate of George E. Breck had been appointed, and the opportunity given to defendant to present his claim for allowance. In Quinn v. McGovern the question involved was whether a person holding a claim against an estate, which might have been made the subject of set-off in an action by the deceased, who had permitted the' meetings of the commissioners on claims to transpire without presenting his claim for allowance, could thereafter set off such claim in an action brought by the executor. On the authority of section 5901, it was held that he could not. That section provided that “every person having a claim against a deceased person, proper to be allowed by the commissioners, who shall not * * * exhibit his claim to the commissioners within the time limited by the court for that purpose, shall be forever barred from recovering such demand, or from setting off the same in any action whatever.” The extent to which it was necessary for the court to go in that case was to hold that this section is to be construed in connection with sections 5905 and 7369, providing for set-offs in suits brought by executors, and that, when so construed, the statutes did not permit the Set-off of a claim barred under section 5901. In the present case it does not appear that the claim of defendant was barred by section 5901, and therefore Quinn v. McGovern does not apply; but, if sections 5905 and 7369 be held to govern the case, by analogy the defendant had the right to recoup.

Several assignments of error relate to the refusal of requests to charge, but our examination of them impresses us with the belief that no prejudicial error is shown.

The judgment is affirmed.

The other Justices concurred.


author: Long, C. J.

text:
    TERRY v. DURAND LAND CO.
    1. Mortgages—Authority to Collect.
    A letter from a mortgagee’s agent, directing a firm that has looked after the collection of the interest upon the mortgage to call in the loan, or foreclose, if certain interest moneys are not paid at once, does not, where the interest is promptly paid, authorize a mortgage company subsequently incorporated, and controlled by the individuals who composed the firm, to receive payment of the principal.
    2. Same—Assignment—Want oe Consideration.
    A grantee who assumes a mortgage upon the property conveyed cannot set up against an assignee of the mortgage that the assignment was without consideration.
    3. Same—Fraud—Estoppel.
    An assignee of a mortgage is not estopped to foreclose by the act of his agent in withholding the assignment from record for the purpose of escaping taxation.
    Appeal from Shiawassee; Smith, J.
    Submitted January 15, 1897.
    Decided May 25, 1897.
    Bill by Katherine W. Terry against the Durand Land Company and others to foreclose a mortgage. From a decree for complainant, defendants-appeal.
    Affirmed.

      John H. Bissell, for complainant.

      Will H. Brunson (Fedewa & Walbridge, of counsel), for defendants.
   Long, C. J.

This bill was filed to foreclose a mortgage given by Charles C. DeCamp and wife to Walker & White, of St. Johns, for $3,000, due in three years, with interest at 7 per cent., payable semi-annually, and covering property in Durand, Shiawassee county. The mortgage was made May 12, 1888. On October 16, 1888, Walker & White assigned it to Anita M. McDermott, of Morristown, N. J., who on October 25th following, by her attorney in fact, Frederick T. Sibley, assigned it to the complainant in this case. June 11, 1888, De Camp and wife conveyed the premises covered by the mortgage to the Durand Land Company. This deed contains a covenant by which the grantee assumed and agreed to pay the mortgage. At this time Walker & White were doing business at St. Johns, Clinton county, consisting principally of loaning money for other parties, taking mortgages, and conducting a general real-estate business. Some time thereafter they organized what was known as the Michigan Mortgage Company, Limited, the business being carried on by Walker and White. The power of attorney from Anita M. McDermott to Mr. Sibley, under which he acted in transferring the mortgage to the complainant, is shown in this record. After the mortgage was assigned to her, the interest was paid thereon through Mr. Sibley, the payments being made for the mortgagors by the Michigan Mortgage Company. Certain parcels of land were from time to time released from the lien of the mortgage as the Durand Land Company made sales.

It is contended upon the part of the defendants that this mortgage was paid in the following manner: That on July 8, 1892, a note and mortgage were executed by the president and secretary of the Durand Land Company for $3,500, running to the Michigan Mortgage Company as mortgagee; that $3,000 of these moneys were credited on the books, of the Michigan Mortgage Company to Frederick T. Sibley, and the moneys so received were paid by the Durand Land Company to the Michigan Mortgage Company for the purpose of paying off and discharging complainant’s mortgage; that Frederick T. Sibley and John H. Bissell, of Detroit, attorneys at law, have been for the last 15 years the agents of Anita M. McDermott and the complainant, and had full authority to do anything with all the mortgages and notes belonging to them that each of said parties could have done, respectively; that the Michigan Mortgage Company, Limited, ever since its organization, has been the general agent of Sibley & Bissell, with full power to receive payment of principal and interest of all notes and mortgages belonging to the clients or principals of Sibley & Bissell, or to them individually, to reinvest the. moneys, and to act generally as their agents, respectively, in all matters pertaining to such notes and mortgages, as well as to the notes and mortgages belonging to said Sibley & Bissell individually; that said Michigan Mortgage Company had collected -the interest and principal on scores of mortgages for said Sibley & Bissell, and reinvested the money, and that all mortgages taken by said Michigan Mortgage Company similar to the one in question, and sold by it to others, were handled by it as agent of the owners, with full power to collect both principal and interest and receipt for the same, and that said Michigan Mortgage Company had for many years frequently invested money in mortgages for Sibley & Bissell and for their clients, including the complainant and Anita M. McDermott; that these facts were well known to the Durand Land Company, its stockholders and officers, and they believed and understood that said Michigan Mortgage Company had full power to collect and receipt for moneys on this mortgage, and that this belief was brought about by the acts and conduct of Sibley & Bissell, Anita M. McDermott, and complainant, as well as by the acts of all the owners of mortgages made payable at the office of said Michigan Mortgage Company, or at the office of Walker & White.

The moneys were never paid by the Michigan Mortgage Company to Sibley or to the complainant, and the Michigan Mortgage Company thereafter failed. On the hearing in the court below a decree was rendered in favor of complainant, ordering a sale of the mortgaged premises for the payment of the amount due. From this decree, defendants appeal.

There is no express authority shown in this record to the Michigan Mortgage Company, Limited, to collect and receive the principal upon this mortgage. The evidence is made up largely of letters passing between the parties. The only letter which refers to the collection of the principal due upon this mortgage is one from Mr. Sibley, dated August 14, 1889. That letter was addressed to Walker & White, and not to the Michigan Mortgage Company, and was written before the latter’s organization. In it Mr. Sibley said: “Unless the Charles DeCamp interest is paid instanter, you may call in the loan or foreclose. The interest was due May 12, 1889, and should have been paid without delay.” It appears that that interest was paid, and the loan was not called in. From that time forward, interest was paid to June, 1892, and no further direction was ever given to collect this mortgage. We think this record is entirely barren of evidence showing that the Michigan Mortgage Company, Limited, was authorized to collect the mortgage in suit. There was no specific authorization, and we are unable to say that such facts are shown as would establish a general agency. The question is governed by Joy v. Vance, 104 Mich. 97; Bromley v. Lathrop, 105 Mich. 492; Trowbridge v. Ross, Id. 598.

It is averred in the answer that the assignments of this mortgage from Walker & White to Anita M. McDermott, and from her to complainant, are absolutely void, as against public policy and for want of consideration, for the reason that they were made, and the latter one kept off the record, for the purpose of defrauding the government of its taxes on the mortgage, and that no taxes were paid on the same by the complainant. We think, however, that the assignments were made for a valuable consideration, and the defendants are not in a position to raise the question of want of consideration. The Durand Land Company, in taking its deed, assumed to pay the mortgage. The grantee who assumes and agrees to pay a mortgage waives all defenses except payment. Crawford v. Edwards, 33 Mich. 354, and cases there cited.

The question whether the leaving of the last assignment off the record made void both assignments, and estops the complainant from foreclosure of her mortgage, is discussed at considerable length by counsel for defendants. The facts shown cannot have the effect upon complainant’s rights contended for. The complainant herself is not charged or shown to have kept the assignment off the record for this purpose; but the charge is made that Sibley, her agent, in withholding the assignment from the record, did so with intent that no taxes should be charged against it. This precise question was before the courts in Nichols v. Machine Co., 27 Hun, 200; and it was held by that court that such act did not make the bond and mortgage void, and that it would be no defense for .the defendant to show that the principal motive of the complainant was to loan his money in a way to escape taxation. This case was finally determined in the court of appeals (97 N. Y. 650), and the judgment below affirmed, all the judges concurring.

The decree below must be affirmed.

The other Justices concurred.