author: Ostrander, J.

text:
    DE VRIES v. CROFOOT.
    1. Insane Persons — Contracts—Avoidance.
    A contract for the sale of land made by an insane person may be avoided by him on his restoration to sanity.
    2. Same — Guardianship—Effect.
    Where the probate court refused to order specific performance of a contract for the sale of land by an insane person, whereupon the parties instituted guardianship proceedings and procured a guardian’s sale, the guardian’s acts being purely perfunctory and the proceedings being conducted for the purpose of carrying out the contract, resulting in the sale of the land for an inadequate sum, the proceedings amount to a fraud and a court of equity will treat the entire proceeding as invalid.
    3. Same — Trusts—Accounting.
    Where, through fraudulent guardianship proceedings, the lands of an insane person were sold at an inadequate price to defendant, who resold them at a substantial advance to another under circumstances making it inequitable to deprive him of them, the first purchaser will be regarded, in equity, as the trustee of the land and of the proceeds thereof, and will be required to account to the original owner for the amount received.
    Appeal from Ottawa; Padgham, J.
    Submitted January 24, 1907.
    (Docket No. 103.)
    Decided April 30, 1907.
    Bill by Nicholas De Vries and Henrietta De Vries against James R. Crofoot, Jane B. Crofoot, Hilbert De Kleine, and Alice De Kleine to set aside certain deeds, and for an accounting. From a decree dismissing the bill, complainants appeal.
    Reversed as to defendants Crofoot, and affirmed as to defendants De Kleine.

      Walter I. Lillie, for complainants.

      Diekema & Kollen, for defendants.
   Ostrander, J.

Complainant Nicholas De Vries owned 40 acres of land, which cost him in 1894 $2,200, and upon which he placed a mortgage of $1,500. The farm was rented, complainant and his family living upon other land. In December, 1901, complainant agreed to sell the land at the price of $2,350, the intending purchaser, however, declining finally to take it; not because the price was too great, but for other reasons. In December, 1901, Nicholas was adjudged insane, and was sent to the asylum for the insane at Kalamazoo. There is testimony supporting the idea that his mental affliction may be ascribed to his feeling that he was not prospering financially, and that the failure to make the contemplated sale of this land increased his disorder. In August, 1902, he went home; but he was returned to the asylum in about 30 days, and there remainéd until August 29, 1904. While so temporarily at his home, and on August 23, 1902, he, his wife joining him therein, entered into a written contract with defendant James R. Crofoot to sell him this 40 acres of land for the sum of $2,350. He was to pay $50 down, $800 on or before the 24th of the succeeding March, with interest at 3 per cent, per annum, and the interest upon the mortgage from date of the contract, and a deed subject to the mortgage was to be executed by the vendors and possession given to the vendee Crofoot on or before said March 24, 1903. The 50-dollar payment was made. In April, 1903, Crofoot, the vendee in the land contract, who had gone into possession of the land, petitioned the probate court for an order for specific performance of the' contract. This order was refused upon the ground that the vendor had not been discharged from the asylum as cured at the time he entered into the contract. Thereupon a son of complainant, who was a practicing physician in Grand Rapids, who was, to some extent, advising his mother and his sister and brothers, who testifies that it was his opinion that the land should be disposed of, that the contract price was a fair one, and “ I wanted my father to live up to the contract made with Crofoot even if he was insane,” undertook to have the contract performed .by certain proceedings in probate court under the provisions of chapter 244, 3 Comp. Laws, as amended in 1899 (Act No. 2.36) and 1903 (Act No. 207). Upon his petition a guardian was appointed. The guardian petitioned for leave to sell the land and invest the proceeds at interest. Leave was granted, and the land was sold at private sale to Crofoot for $850. He made some minor improvements upon the land, and in February, 1904, sold the property to defendants De Kleine for $3,400, which sum was paid in full. Nicholas, who testifies that he has no recollection of the circumstance of executing the land contract and knew nothing about any of the other proceedings until after his discharge from the asylum, seeks to set aside said contract, the guardian’s deed, the quitclaim deed which his wife executed under circumstances to be related, and the deed from Crofoot and his wife to the other defendants. He asks for an accounting of rents and profits of the land, and for repayment of certain money paid out by his wife, Henrietta. There is also the prayer for other and further relief.

Defendant Crofoot was cognizant of the purpose of the proceedings which resulted in securing for him the guardian’s deed. He understood that complainant’s son proposed to secure him the land at the contract price. The representations made by the son, added to the fact that other members of complainant’s family were either passive or, apparently, assenting, had the effect of rendering all that was done by the guardian perfunctory. Except for the purpose of making the sale, there was occasion for, and there would have been, no guardian. The guardian did not assume and did not propose to assume the duties and the responsibilities, generally, of a trustee of the property of an insane person. He did not seek for purchasers of the land. He exercised no volition so far as. determining, as guardian, whether it was for the interest of his ward that the property be sold. Complainant’s family was in no difficulty. The son testifies:

“At the time I made this petition it was about six months after the property was sold by my father. He was in the insane asylum, and I did it to clear up the contract he had made six months previous to that time. My mother and brothers on the farm were not hard up. They did not need any help from me or anybody else, and that is the reason I took pay from my mother for expenses down here. I thought she was better able to pay than I was to pay my own expenses. * * * I did this service for Crofoot because I thought it was the best way out of the condition things were in. I did not know there was nearly $1,000 worth of personal property there when I made the petition, but I knew there was enough to run the farm successfully. I knew they had money enough to live on, and that they had means to support themselves and care for themselves.”

It is due the son to say that he states his opinion to be that his father was competent to enter into the land contract. But insanity immediately previous and immediately subsequent to the act is established. There is no other evidence of a lucid interval. See 13 Cyc. pp. 573, 752; 22 Cyc. p. 1115. Defendant Crofoot, however, testified that he made the contract, although he knew Nicholas was insane at the time.

Assuming that the record of the proceedings which were taken is, upon its face, regular, it remains that the statute purpose was not the real purpose of those proceedings, and that the real purpose was known to defendant Crofoot. The facts brought to the attention of the probate judge and upon which he acted were not, all of them, true. The petition for appointment of a guardian made by UilkeDe Vries sets out that the estimated value of personal estate of his father is $200, and of his real estate $2,250 or thereabouts, subject to a mortgage of $1,500. The petition of the guardian' sets out that “the income from said estate in its present condition will not exceed the sum of $10,” that the value of the personal estate of his ward which had come to his hands was $215. His inventory described the personal estate as one horse, another horse, three cows, four yearlings, and these were valued by appraisers at $215. In fact, the guardian knew nothing whatever about the matter except as informed by Uilke DeVries. No one pretends that there was a true inventory and appraisement of the personal property, or that the real estate produced so small an income. It is explained by one of the appraisers tnat what they were doing was finding out what property there was in 1901 instead of in 1903. It appears, also, that the real estate was really valued by the appraisers*- subject to the mortgage, at the sum of $1,000, but that it was considered that the dower interest of the widow was worth $150, and so $150 was deducted. It is a fair inference that the $50 paid upon the land contract must have been considered in order to appraise the real estate at $800, as was done. Defendant Crofoot did not pay the guardian $850, the upset price to be obtained at private sale. He paid but $800, and obtained credit for the $50 paid on the contract. He paid, also, 3 per cent, interest upon the $800 and the interest on the mortgage after the date of the contract, as in the contract he agreed to do. He obtained from complainant’s wife, without consideration, a quitclaim deed of the land upon the representation that she, having signed the land contract, had obligated herself thereby to convey her interest in the land. Various expenses of the proceeding, upwards of $30 in amount, were paid by Henrietta. The mortgage, which was not d.ue, has not been paid, although Crofoot has procured it to be assigned by the mortgagee and is carrying it at a rate of interest lower than, by its terms, it bears.

It is said for defendant Crofoot that the evidence warrants no conclusion other than that the parties were acting in good faith, there was no desire or intention to defraud' the complainant, the land sold for all that it was worth, the price which the owner himself fixed was obtained, the whole matter was, in fact, in his interest, and resulted beneficially to him. In this connection we are told that the increased value of the land is due to the fact that an electric railway passed this farm at some time after the contract to sell was made by complainant and before the sale was made by Crofoot to the other defendants. We assume that the road was projected before it was built, and that the fact would have affected the action of a guardian who was conserving the estate of his ward. Whatever the intention of the parties to the proceedings may have been, the purpose and the result was. to enforce in 1903 a land contract made in 1902 by an insane man, and to divest him of his estate upon the terms of that contract. This contract was in any event voidable. Wolcott v. Insurance Co., 137 Mich. 309. It has been avoided if, as we assume, complainant is now sane. His sanity is not questioned in the record. He has not accepted the proceeds of the sale of his land. In the proceedings taken there was lacking, also, the essential elements of official supervision, exercise of official judgment, the moral responsibility of official, fiduciary action. Complainant was not, in fact, represented in the proceedings. No one can say with certainty what sum a guardian charged with that duty could have secured for the land. It is a reasonable conclusion from the evidence that a larger sum could have been secured. We are inclined to the opinion that some care was taken to so value the land that a private sale could be made, under a statute which permits such a sale when the interest of the estate in the land does not exceed, as valued, $1,000. We acquit the son and all others concerned in the probate proceedings of profiting out of what was done. Nevertheless, in equity, if not at law, a fraud was perpetrdted, and a court of equity will treat the entire proceeding as invalid. Encking v. Simmons, 28 Wis. 272; Helbreg v. Schumann, 150 Ill. 12; 1 Story on Equity Jurisprudence (13th Ed.), § 227; Tong v. Marvin, 26 Mich. 35. It is the general rule of law that—

“A legal wrong is committed whenever a man is dispossessed of his property against his will; and, if he demands his property back, and does not see fit to name a compensation for it, it is clear that nobody else can name one for him. He cannot be forced to submit to a sale at other people’s estimates of value.” Tong v. Marvin, supra.
‘“A sale may have been conducted legally in all its process and forms, and yet the purchaser may have been guilty of fraud, or may hold the property as a trustee. In this case the complainants rely upon no irregularity of proceeding, upon no absence of form. The forms of law were scrupulously observed.’ * * * Jackson v. Ludeling, 21 Wall. (U. S.) 616.
‘ ‘ Had the question of .fraud been before the probate court in any of these proceedings, and had the complainant been apprised of them, the case might have been different. This court would not try over again a case already tried, nor permit the complainant to litigate matters which he had notice of and which he had an opportunity to litigate in the probate proceedings.” Bradley, J., in Johnson v. Waters, 111 U. S. 668, 669.

See, also, Encking v. Simmons, supra. The rule thus stated is applicable here. Such a sale will always be set aside if it is for the benefit of the person non compos mentis where injustice will not be thereby done, or where the parties can be placed in statu quo. And if defendant Crofoot were now the owner of this property, such would be the disposition made of the case.

It is not claimed that the record of the proceedings is infirm, or that it carried to defendants De Kdeine notice of improper or fraudulent conduct. It is claimed that certain circumstances of the manner of their purchase from Crofoot and of their subsequent actions furnish grounds for the inference that they are chargeable with notice of what was sought to be and wás accomplished. Without denying the power of the court to compel them to restore the property and to look to Crofoot for indemnity, we are of opinion that substantial equity can be otherwise done, and therefore as to them we affirm the decree. But the defendant James R. Crofoot should not be permitted to profit by the transaction. We treat him as vendee in a void land contract, who has succeeded in enforcing it, to his profit, against the will and the interest of the vendor. He occupies, in equity, the position of a trustee of the land and of the proceeds thereof. The proceeds are $3,400 as of date March 5, 1904. From this sum will be deducted $2,350 (the money in the hands of the guardian to be paid to complainant), and $125, the value of the improvements Crofoot placed on the premises. The balance, which is $925, with interest at the rate of 5 per cent, per annum from March 5, 1904, he will pay to complainants, with costs of both courts.

The decree below, as to defendants Crofoot, is reversed, and a decree will be entered in this court in conformity with this opinion. As all defendants joined in the answer to the bill of complaint, and have appeared by the same counsel, no costs of the appeal will be awarded to defendants De Kleine.

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


source: Caselaw Access Project

license: Public Domain

text:
    GIER v. DAIBER.
    1. Contracts — Building Contracts — Performance — Acceptance-Taking Possession.
    The act of the landowner in taking possession of buildings, erected on his land under contract with a builder, after the builder has left the premises, cannot be construed as an unequivocal acceptance of performance, but is to be considered, with all the other circumstances in determining the question of waiver of the condition precedent to acceptance.
    2. Mechanics’ Liens — Right to Lien — Performance.
    Where buildings are erected under a contract requiring them to be constructed to the satisfaction of the owner, who is given power to reject materials and workmanship not in conformity with the specifications, the contractor, after remedying defects pointed' out, and requesting that others be pointed out, which is not done, is entitled to maintain his suit to enforce his lien, though it develops that there are minor defects in material and workmanship, the existence of which does not indicate any purpose to defraud, which might have been overlooked, and which might have been remedied, if attention had been directed to them.
    3. Same — Defective Materials and Workmanship.
    On a bill to enforce a mechanics’ lien, evidence examined, and held, that though the shingles put upon the roofs were of poor quality, they were of the quality specified, and though the contract did not permit poor workmanship, and the roofs were unsatisfactory, the shingles were as 'ivell laid as shingles of that .quality could be, and that complainant was not barred of his remedy because he refused to replace the roofs.
    4. Same — Claims for Extras.
    Where a building contract provides against claims for extras unless agreed upon in writing, the contractor cannot enforce a lien for extras supplied upon a verbal demand by the owner as a matter of right, coupled with an order to supply them or abandon the work.
    5. Same — Allowance for Defective Work.
    On a bill to eñforce a mechanics’ lien, evidence examined, and held, to support a claim by the owner for allowances for defective work.
    Cross-appeals from Wayne; Mandell, J.
    Submitted January 23, 1907.
    (Docket No. 86.)
    Decided April 30, 1907.
    Bill by James J. Gier and Catherine Bousson, copartners as James J. Gier & Company, against Philip Daiber to enforce a mechanics’ lien. From the decree rendered, both parties appeal.
    Modified and affirmed.
    Complainants, copartners, filed a bill to enforce a mechanic’s lien.- The answer of defendant sets out the written contract entered into by the parties and the plans and specifications according to which complainants were to build, furnishing all labor and materials, and defendant to pay for, three houses for $3,450. It is a part of the agreement that the superintending owner (defendant) shall have power to reject material and workmanship not in full accord with the- spirit and meaning of the plans, drawings, and specifications which form a part of the contract, and that the work was to be done “to the entire satisfaction of the said owner.” It is a part of the specifications that “no charges can be made for extra work unless agreed to in writing.” Complainants’ claim is for unpaid balance of contract price, $920, extras, $85.10; a total of $1,005.10. In the answer of defendant, it is alleged with particularity the respects in which the materials used were defective and the labor performed unworkmanlike. The cause coming on to be heard upon proofs taken in open court, the claim for extras was disallowed, certain sums were allowed to defendant for defects in material and labor, and a decree entered for complainants for $845 and interest from September 22, 1904; a total of $904.50, with interest from date of decree, which was February 19,1906. Both parties have appealed from this decree.

      Edward A. Barnes, for complainants.

      Edmund Atkinson {William F. & Frank W. Atkinson, of counsel), for defendant.
   Ostrander, J.

{after stating the facts). It is one of the contentions made by defendant that complainants should be remitted to an action at law. It is based upon the proposition that the written contract requires the buildings to be constructed to the satisfaction of the owner, who is given power to reject materials and workmanship not in conformity with the specifications, and that the evidence shows defective materials and workmanship. Hanley v. Walker, 79 Mich. 607 (8 L. R. A. 207); Boots v. Steinberg, 100 Mich. 134. The learned trial judge disposed of this contention by finding that defendant, though protesting, took possession . of the buildings, after which complainants remedied certain defects pointed out by defendant, and thereafter requested to have further defects, if there were any, pointed out; that the conduct of defendant amounted to an acceptance of the work under the contráct. . But he was of opinion that the contract had not been performed, and that equity, in preserving and enforcing the lien, demanded also that certain allowances should be made to defendant in diminution of the contract price. As was done in the opinion in the case last above cited, I quote from the opinion in Hanley v. Walker so much as is necessary to state what I understand to be the settled law of this State:

“ When a person contracts with another to build, or to do some portion of the work in constructing buildings, upon real estate belonging to the owner of such real estate, his taking possession after the other has left the premises cannot be construed as an unequivocal acceptance, although he thereby takes possession of, and appropriates to his use and benefit, the labor or materials of the contractor. He must do so, as a matter of necessity, in many cases, or suffer the property to stand idle and unused, to the great detriment of all parties, and especially so of the owner. The most that can be said, in such cases, is that the act of the party, and all the circumstances, may be taken into consideration in the determination of the question whether there is an implied waiver of the condition precedent.”

I find no evidence to support a finding that defendant ever accepted the buildings as completed or waived his right to insist that they were not built according to contract. On the contrary, he made written demand to have the roofs on each house removed and new roofs built, and has since put on new roofs. Complainants refused to build new roofs, agreed to, and did, remedy other defects which defendant and certain disinterested builders employed by complainants called their attention to, and requested defendant by speech and writing to point out any other or further discovered or supposed defects. This, defendant did not do. I find, therefore, that if defendant’s objections to the roofs are without substantial basis— are captious — the suit is properly maintainable, although it has since developed that there are minor defects in material and workmanship, the existence of which does not indicate any purpose to defraud, which might have been overlooked, and which might have been remedied, if attention had been directed to them. As to the roofs, the complaint made by the defendant was:

“The roof boards are too far apart, and are besides too shaky, split, and rotten. The shingles are not the quality specified by our contract, the butts having knots and worm holes, and, such as they are, they are not properly laid. * * * I must insist upon your replacing the three roofs at once with proper roofs such as were contacted for by me.”

A review of the conflicting testimony introduced leads to the conclusion and finding that the shingles were of the quality specified, the roof boards were of proper material, and properly put on. I have had most trouble over the question whether they were properly laid. The contract calls for cheap material. It does not permit poor workmanship. Giving effect to that testimony which appears to be best entitled to be believed, I find that the shingles were, substantially, as well laid as such shingles can be laid. It appears, also, that defendant .was present from time to time, inspecting the work as it progressed, and that at his request the workmen were permitted to select, to some extent at least, the shingles which were put upon the houses, using the worst of them to cover the outhouses. Complainants were warranted in refusing to replace the roofs.

There were no written agreements for extra work. Counsel for complainants invoke the rule that, where parties to a contract containing such a clause as appears here deal with each other, the provision is waived when the owner himself requests that the work be done or the materials furnished. Ford's Case, 17 Ct. Cl. 60; Barlow v. U. S., 35 Ct. 01. 514; 30 Am. & Eng. Enc. Law (2d Ed.), p. 1283. The testimony of some experts who inspected the plans and specifications and the buildings was that all items claimed as extras were extras. Counsel for defendant content themselves by saying that the trial judge disposed of the matter properly, and that there is no occasion to say anything upon the subject. The circuit judge was of opinion that, inasmuch as complainant testified that defendant demanded the extras charged for as matter of right, telling complainant that he could supply them or abandon the work, and complainant thereafter supplied what was demanded, there was no room for the idea that a parol contract had been entered into for such extras. The reply made is that, as these things were in fact extras, the demand upon condition being a variation, and, if insisted upon, a breach of the contract, the law will not put the contractor in the difficult position of treating the whole contract as at an end and suing for his damages. I am satisfied that the contract did not require these items to be furnished — that they were in fact extras — and agree with counsel for complainants that the cost of them would be a proper measure of damages for breach. of the contract in a case where a contractor was not allowed to perform according to the terms of the contract. This is not such a case. Complainants are asserting a lien as upon performance of a written contract according to its terms. The court was right in refusing a decree for these items. Moore v. Locomotive Works, 14 Mich. 266.

Counsel for complainants say that the court was in error in making certain allowances to defendant on account of defects which he found to exist, without evidence of the expense of remedying such defects, and the inference, from the argument made, is that defendant was bound to supply such proof. But as to some of these alleged defects there was no dispute. It is admitted that the foundation walls were not made of material consisting of four parts gravel and one part cement, as the contract specified. The proportions were six parts to one. This was discovered by defendant during the hearing in the court below. The evidence strongly supports the idea that the proportions used were proper, and were as usually specified in such cases and that the specification was made by inadvertence. So, too, bolt holes through the foundation walls were not closed from the outside, as they should have been. The court allowed defendant $45 for the three houses on account of defects in foundations. The facts were particularly within the knowledge of complainants. There was some evidence, not very clear or specific, to sustain the allowance made on account of defective foundation walls, and, under the circumstances, the finding will not be disturbed. An allowance was made, too, of $30 as a proper expense of repairing the roofs of the houses. For this I find no warrant. Counsel for complainants concede that an allowance of $6 should be made for two doors.

The decree will be modified, by adding to the same $24 as of February 19, 1906, and, as modified, affirmed. Neither party will recover costs of this appeal, but the cost of printing the record will be equally divided between them.

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


author: Moore, J.

text:
    BOOTH v. DINGLEY.
    Specific Performance — Contract of Sale — Enforcement Against Third Person.
    Where the owner of the capital stock of a corporation agreed to sell it to her son on terms including the reorganization of the corporation by complainant and the son under a scheme that should leave the management and a controlling interest in the corporation in the son, a contract between the son and complainant, by which he agreed to sell 61 per cent, of the-stock to complainant and reorganize the corporation on a basis involving the ownership of 61 per cent, of its stock by complainant, cannot be specifically enforced against the owner of the stock.
    Appeal from Kalamazoo; Adams, J.
    Submitted January 25,1907.
    (Docket No. 105.)
    Decided April 30, 1907.
    Bill by Ralph H. Booth against Edward N. Dingley and others for the specific performance of a contract. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      William J. Gray (Dallas Boudeman, of counsel), for complainant.

      Osborn & Mills, for defendants.
   Moore, J.

Complainant seeks the specific performance of the terms of a paper, the material parts of which are as follows:

“ Memorandum of Agreement.
‘ ‘ For and in consideration of the payment of the sum of $35,000.00 to be paid to me by R. H. Booth, I hereby agree to sell, transfer and set over 61 per cent, of the stock of the Kalamazoo Telegraph Co., owner of the Kalamazoo Evening Telegraph and Semi-Weekly Telegraph, with all of its plant, including two Potter presses and motors and stereotyping outfit, four linotype machines and complete composing room plant, all office furniture and fixtures and all supplies on hand and in transit and franchises and all property understood to constitute the assets of the said the Kalamazoo Telegraph Company, including also the subscription list, advertising contracts, books of accounts and all that goes to make up the good will of the said newspapers. * * *
“ It is understood that I am the owner of, or have po wer to deliver all the above described property and stock aforesaid.
‘ ‘ I hereby acknowledge receipt of $500 to me in hand paid (receipt. given herewith) which shall be forfeited to me in event of the balance of the amount $34,500 not being paid to' me by March 5, 1906.
“It is understood that the Kalamazoo Telegraph Company expects to remain in its present building and that for the first year the rental shall not exceed $1,200 for space occupied by it. Also that it is the sense of our understanding that if it can be arranged satisfactorily as to details of salary, duties, etc., that I shall be the managing editor for one year from date.
“It is understood that the statement of receipts and expenses for the year 1905 given herewith is substantially true and correct.
“It is further understood that the salary of the president shall at no time exceed 3 per cent.- of the annual gross receipts, and that all other salaries shall be solely for service rendered in accord with business practice. It is expected that you will reorganize the company with capital increased to one hundred thousand dollars of which you, Ralph H. Booth, shall have 61 per cent, or $61,000, and I to have 39 per cent., or $39,000. Following this agreement there shall be prepared a bill of sale covering all details of above intentions.
[Signed] “Edward N. Dingley.
“Dated February 27, 1906.
“Accepted: Ralph H. Booth.”

In his answer, Edward N. Dingley made claim that the contract did not correctly express the agreement, and prayed for its reformation; that complainant knew he (Dingley) was not the owner of the stock, and that his power to deliver the same depended upon an agreement acceptable to the owners of the stock, and that they never saw the memorandum which it is sought to enforce. Salome Dingley, Henry M. Dingley, for himself, and as executor, answered. Among other statements in said answers are the following:

“ They deny that they, or either of them, saw or knew of the memorandum of agreement signed by the complainant and Edward N. Dingley, which is attached to the bill of complaint, until after this suit was brought, and they deny that the said Edward N. Dingley had any authority from them, or either of them, to enter into such a memorandum, or said memorandum as affecting them, or either of them, or their stock, or property, in the Kalamazoo Telegraph Company.”

The case was heard in open court. The trial judge filed a written opinion, in which he used the following language:

“ My opinion is that this court cannot require specific performance of this contract in controversy in this suit for the following reasons:
“First. E. N. Dingley was not and is not now the owner of the shares of capital stock in the Telegraph Company which he contracted to sell to complainant; they being owned by Mr. Dingley’s mother. She agreed with her son, but not with the complainant, to sell her son her capital stock in the Telegraph Company (she owning substantially all the stock of said corporation which had been issued) for the sum of $23,209 in cash and three notes of $5,000 each. These notes to be secured by $15,000 of the capital stock of the Telegraph Company. Mrs. Dingley made this agreement with her son on the understanding, through her son, E. N. Dingley, that the Telegraph Company would be reorganized by complainant and E. N. Dingley, with a capitalization of $75,000 to $100,000, and that E. N. Dingley was to own a majority of such capitalization. Dingley’s contract with complainant stipulated that the company should be reorganized with a capitalization of $100,000, of which amount E. N. Dingley was only to receive $39,000. This was placing Mrs. Dingley in a different position than she had contracted with her son, E. N. Dingley, to be placed in. She agreed to let her stock go to her son, with the express understanding that he was to retain a majority of the stock as his own. This was a vital part of her sale. Perhaps, she wanted him to remain in the business as a majority, and not minority, stockholder. Perhaps, she would not have consented to sell her son her stock, if she had known he was going to surrender control of the corporation. Perhaps, it was not merely a desire on her part to get all her money out of the corporation. Perhaps, it was her wish that her son should be identified with the business as its head and with power through ownership of stock to dictate the management and policy of the paper. Who could say that she would have sold the stock on these terms, had she known that her son was going to surrender control and management of the paper.
“ To do what complainant now wants the court to order —that is, to permit complainant to pay Mrs. Dingley in full for her stock — might be making her do something she never intended to do. If she were a party to the contract, the court might then order her to'do just what she had contracted to do; but, not having signed the contract, the court should not put her in a different position than she supposed she would be in when she told her son he could have this stock. To do what complainant asked the court to do with reference to Mrs. Dingley might make her do something she never contemplated. If the court cannot do what complainant asked done with reference to Mrs. Dingley, then complainant has no standing in this court, and- for the reason suggested Mrs. Dingley cannot- be required to sell her stock, principally because E. N-. Dingley and complainant had agreed that Dingley would surrender a majority of the capital stock. The question of whether the .corporation was to have a capitalization of $75,000 or $100,000 is not very vital, so long as Dingley retained a majority of the capital stock; but this was not done.”

He further found the contract was indefinite. A decree was made dismissing, the bill of complaint. The case is brought here by appeal.

It is the contention of the complainant: First, that the contract is definite; second, that because of its character, the business and property involved, and the purpose the complainant had in view in entering into the agreement, an action at law would not give him an adequate remedy; and, third, that, because of the relations of Edward N. Dingley to his mother and brother, and his correspondence with them resulting in their sending their stock to the defendant bank, and the willingness of complainant to pay therefor, the court may very properly make a decree in favor of complainant.

It is the claim of defendant Edward N. Dingley that the agreement does not embrace all of the agreement between him and Mr. Booth; that it was to be followed by a further agreement covering all the details of their intentions ; that provision was to be made for the renting of his building for a term of years and for his employment as managing editor, with absolute control of the editorial policy of the paper; that, when complainant with his counsel from Detroit met him later with another and detailed agreement, it did not contain the provisions it was to contain, and defendant was justified in not going on with the agreement. It was his further claim that complainant had a complete and adequate remedy at law, and that specific performance could not be decreed, for the first reason stated in the opinion of the trial judge. In our view of the case it will be unnecessary to pass upon any but the last of these claims.

Are the relations of Henry M. Dingley, Henry M. Dingley, executor, and Salome Dingley with the complainant, as shown by the record, such as to justify a court in compelling each or either of them to part with their stock to the complainant? So far as the record shows, neither of these parties ever saw Mr. Booth, or ever had any direct communication with him before the suit was brought. The correspondence is somewhat voluminous, and it would serve no good purpose to set it out in full. Upon the part of Mrs. Dingley, it was conducted by her son Henry M. The substance of it was that Edward had a plan of reorganizing the Telegraph Company, retaining a controlling interest therein, and that he would pay his mother for her stock $20,000 down, and execute to her three notes of $5,000 each, payable in one, two, and three years, respectively, at 5 per cent., interest semi-annually, stock of the new company to be given her as security, and would also pay other debts due to Henry M. and his mother,, amounting to $3,209. On March 1st Henry M. sent the stock, duly assigned, also the small notes and checks, to the defendant bank, with instructions as follows :

“You will please deliver the above to Edward N. Dingley, upon payment to you of the sum of $23,209 in cash and the delivery to you of three notes to be signed by Edward N. Dingley for $5,000 each, due in one, two, and three years, respectively, with interest at 5 per cent., due semi-annually; each note to be secured by assigned stock (new) of the Kalamazoo Telegraph Company to an amount equal to the face of the notes; stock to be attached to notes.
“Upon the completion of these payments and the receipt of the three notes, you will please send cash and notes to Salome N. Dingley, Lewiston, Me.”

On March 5 1906, Edward N. Dingley wrote Henry M. Dingley:

“ The deal is all off. The parties refuse to come to my terms on certain points.”

There is not a suggestion in any of the correspondence that the complainant desired to buy Mrs. Dingley’s stock, or that Mrs. Dingley desired to sell it to him. In fact, Mr. Booth’s name does not appear anywhere in the correspondence. The record also discloses that Mrs. Dingley never saw the written memorandum signed by Mr. Booth and Edward N. Dingley until after this suit was brought, and was in no way a party to such agreement. Edward N. Dingley did not tender the bank the money and notes which were to be delivered to it before the stock should be delivered. Mrs. Dingley had a right to make her own contract for the sale of her stock. The court cannot make another and a different one for her. Without the stock of Mrs. Dingley, it is impossible for Edward N. Dingley to convey to complainant 61 per cent, of the stock of the Kalamazoo Telegraph Company. Under such circumstances, a decree for specific performance will not be granted. See Miller v. Smith, 140 Mich. 524; Gaines v. Molen, 41 Ark. 232; Columbine v. Chichester, 2 Phil. (Eng.) 27; Knott v. Manufacturing Co., 30 W. Va. 790; Jones v. Tunis, 99 Va. 220; Kelly v. Railroad Co., 74 Cal. 557; Kennedy v. Hazelton, 128 U. S. 667; 26 Am. & Eng. Enc. Law (2d Ed.), p. 40, and the many cases cited in the note.

The decree is affirmed, with costs.

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


author: Hooker, J. Blair, J.

text:
    PEOPLE v. THORNE.
    1. Embezzlement — Evidence—Sufficiency.
    On a prosecution for larceny by embezzlement under section 11570, 3 Comp. Laws, by converting money supplied accused with which to purchase mining stock, evidence examined, and held, sufficient to go to the jury on the question of fraudulent intent.
    2. Same — Fraudulent Conversion — Subsequent Relations of Parties.
    Where, on a prosecution for larceny by embezzlement, a justifiable inference arises that accused converted the money of the complaining witness to uses other than that for which it was supplied him, with a fraudulent intent, the offense is made out, and the subsequent relations of the parties, claimed to establish the relation of debtor and creditor, cannot change the fact, though they may rebut the inference of guilt.
    3. Criminal Law — Trial—Remarks of Counsel.
    Where, on a prosecution for embezzlement, respondent’s counsel on cross-examination drew from the complaining witness the statement that he had swindled her out of other funds, whereupon counsel confronted her with a paper she had signed releasing respondent from certain claims, a statement by the prosecuting attorney, “If we go into that I cannot see any place to stop; I shall want to show he got 512,000 of this woman’s money, and of her mother’s money, and all she has to show for it is personal notes and bill of sale,” was not error.
    4. Witnesses — Impeachment—Hearsay.
    Where a witness for respondent on a criminal trial admits his friendly relations with respondent, a letter written to respondent by him in which he warns respondent to “get under cover,” etc., is admissible to show his connection with respondent, though it contains statements of fact which the jury might believe, and to prove which it is incompetent; and where the court discriminates clearly between the proper and improper use of the letter, and strikes out portions of it, there is no error.
    Error to recorder’s court of Detroit; Phelan, J.
    Submitted January 24, 1907.
    (Docket No. 144.)
    Decided April 30, 1907.
    Walter W. Thorne was convicted of larceny under section 11570, 3 Comp. Laws, and sentenced to imprisonment for not more nor less than one and one-half years in the State prison at Jackson.
    Affirmed.

      A. B. Hall, for appellant.

      Ormond F. Hunt, Prosecuting Attorney, and Frank F. Bumps, Assistant Prosecuting Attorney, for the people.
   Hooker, J.

The defendant was convicted of and sentenced for the offense of statutory larceny, under section 11570, 3 Comp. Laws, which provides that;

“(11570) Sec. 34. If any person to whom any money, goods, or other property which may be the subject of larceny, shall have been delivered, shall embezzle or fraudulently convert to his own use, or shall secrete with the intent to embezzle, or fraudulently use such goods, money, or other property, or any part thereof, he shall be deemed by so doing to have committed the crime of larceny.”

The complaining witness was a Miss Packard, who testified that the defendant importuned her to allow him to purchase for her a thousand shares of Gold Coin mining stock, at 75 cents a share, which he stated to be the bottom price for the stock, and she gave him #750 for that purpose. He told her that the stock would come in his name, with several thousand more shares of the same stock, and he reiterated the statement after the purchase by saying that he had received said larger number of shares. The testimony shows that only 1,000 shares were sent, and they came in his name, through a bank, and with a collection account of $370 against them. He never paid all of this collection, and never received or delivered the stoek, although she frequently asked him to do so.. It was claimed that Miss Packard’s conduct and dealings with him in relation to this matter established the relation of debtor and creditor, and that this was inconsistent with his guilt, and made it the duty of the court to direct a verdict of acquittal. It was also claimed that there was nothing in the case indicating concealment, or a felonious disposition, apparently upon the theory that his free admission at all times that the stock was at the bank subject to collection charges showed an absence of both.

We are of the opinion that the court did not err in sending the question to the jury. The evidences of misrepresentation regarding the stock as an inducement to Miss Packard to purchase, the indication that all of her money was not required, or used in paying for the stock, lead to a justifiable inference that he converted it to other purposes, with a fraudulent intent, and, if so, the offense was complete, and what the relations of the parties became afterward could not change that fact, though they might tend to rebut such inference.

Statement of the Prosecutor.

Error is assigned upon the statement of the prosecuting officer that “if we go into that, I shall want to show this jury that he got $12,000 of this woman’s money, of her mother’s money, and all she had to show for it is his personal notes and bill of sale.” This statement came about in this way: Upon cross-examination of the complaining witness, defendant’s counsel showed that, as treasurer of the Wolverine Leather Company, she signed a testimonial of character and ability, commendatory of the defendant, and he examined her at length about it. She attempted to explain that she knew it was untrue, but did it out of commiseration for his wife and baby, and that she said to the defendant at the time: “What would people think of me signing anything like that, after what he had swindled me out of ?” etc. Defendant’s counsel extracted from her the statement that he swindled her out of money in connection with the affairs of the leather company in which a large investment by her was lost.. The dialogue continued as follows:

“A. His expense account there was overdrawn $700 in three months.
Q. Didn’t you sign a release, as an officer of that company, releasing Mr. Thorne from liability in that company, in consideration of certain services that he had rendered in organizing the company ?
Mr. Bumps: I object to the question.
The Court: No; I think I will allow the answer now, Brother Bumps, in view of the questions and the statement she made on the stand. I was in hopes that this entire matter could be kept out of this case.
Mr. Bartlett: No, your honor; the defense is perfectly willing to go into every phase of this case.
The Court: I don’t care, Mr. Bartlett, what the defense is willing to do. I believe it only just to the defendant to have her give her answer to that question. Read the question again, Mr. Reporter. (Question read.)
“A. I released — the release I signed called for the $750 or over $700; that was it, of his expense account that he had overdrawn; that was the release I signed.
“Mr. Bartlett: Now, perhaps, this will refresh your recollection, Miss Packard. I offer this in evidence.
The Court: I think I will let it in now, in view of the statement.
“Mr. Bumps: He drew it out himself, your honor. I did not ask it. He was fishing for incompetent testimony, and he got it in. Now he wants to contradict it. I object to it.
“ Mr. Bartlett: Nothing of the kind. Your witness made a statement that Mr. Thorne had swindled her out of several thousand dollars.
The Court: Just a moment, Mr. Bartlett.
Mr. Bumps: If we go into that, your honor, I cannot see any place to stop. If we go into that, I shall want to show this jury that he got $13,000 of this woman’s money, and of her mother’s money, and all she has got to show for it is personal notes and a bill of sale.
“Mr. Bartlett: You cannot show anything of the kind. I object to Mr. Bumps making a statement of anything of that kind.
The Court: Just a moment now. Proceed with the cross-examination, Mr. Bartlett. The object of offering this testimony at the present time is to refute a statement made by the witness on the stand that the respondent had swindled her out of money in connection with the Wolverine Leather Company, and now counsel for defendant desires at this time to submit to the jury a statement signed by this witness in relation to that very same matter, and the court believes it proper and just at this time that he should be permitted to have that statement.
Mr. Bumps: The whole matter, I move that that whole subject, be stricken from the record as incompetent and immaterial.
“The Court: I would cheerfully do that my Brother Bumps, but I have no power to strike from the minds of these jurors whatever impression the complaining witness may have made on them when she made that statement.
“Mr. Bartlett: I think that statement was entirely improper for a witness to make.
“The Court: Now, Mr. Bartlett, the prosecuting attorney and I are discussing it. You got your question and answer from the witness. It was a question you asked for, and you got an answer to it.”

The cross-examination continues through several pages of the record, and before it was through counsel had succeeded in getting before the jury enough of the Wolverine Leather Company transaction to show that her claim regarding his conduct was not altogether groundless. While it is true that the bare question of whether he swindled her in the Wolverine Leather matter was not admissible to prove the charge upon which he was being tried, it was to some extent, at least, admissible, to explain the circumstances under which the recommendation and release were given, and to overcome the damaging effect of the former upon the complainant’s charge. Counsel not only courted full inquiry, but he called out the testimony himself. He is not therefore in a situation to complain of its introduction. The language of the prosecutor was in the nature of an objection to this proof of the release, a protest against its introduction, and notice that he should desire to show what led up to it, proof that would in that case become competent. Under the circumstances it was not error. Moreover, while an objection was made, no exception was taken; counsel being apparently satisfied with the ruling of the court.

The Arena Stock.

The complaining witness was allowed to state that before the transaction with the defendant complained of she purchased through him, paid for, and received some Arena stock, and had not complained regarding the transaction. Counsel for defendant has failed to point to anything injurious in this testimony, while the references to the testimony in the prosecutor’s brief indicate that it was not injurious.

The Powell Letter.

One Powell was called by the defense, to show that $183.50, alleged to have been received by defendant from the proceeds of the sales of the Gold Coin stock, was applied upon the Wolverine Company pay roll; Miss Packard being a large stockholder in that company. On cross-examination the prosecutor sought to discredit him by showing his relations to the defendant. He extracted from him the admission that he was specially friendly to defendant, that after he left Detroit for the West he kept him ‘ ‘ posted in what was going on here;” and by a letter which he admitted sending to him that he gave him information of an intention on the part of a Capt. Horn, who was connected with the Wolverine transaction, to try to “get him back,” and warned defendant to “get under cover,” that Horn was going to get Miss Packard to sign some kind of a paper, and that “brass buttons would be on his track by tomorrow night.” This letter contained the following:

‘ ‘ Received a letter yesterday from Jackson. She wants to know where to write you, etc. Donaldson, Emile, and Johnson of Seely’s made out the inventory. It was certainly very cleverly done. Johnson represented the Captain, and Emile represented Miss Packard, and Donaldson was the go-between. In other words, Miss Packard was not represented at all. Everything was inventoried atred flag prices. Now they have Miss Packard to believe that you did the steal, instead of — well, you know.’
The Court: Do you claim that is competent in a criminal trial, what was done in the absence of this defendant down there, about the inventory ? This is something that was done, you know, in this man’s absence. It was something that Capt. Horn had done; I presume, had an inventory made there.
Mr. Bumps: I do not think that part of it is Competent.
The Court: I am pretty sure it is not. Well, it is before the jury.
Mr. Bartlett: It is before the jury.
“Mr. Bumps: It is more to the advantage of the defendant than a detriment, if it is.
“ The Court: I think that is true.
“Mr. Bumps: So, it not being competent, I will ask to have that part of it stricken out in relation to the inventory.
The Court: It may be stricken from the record.
‘ ‘ Mr. Bartlett: Mr. Bumps is going to read that entire letter and then afterwards objections be made and stricken out, possibly to get it before the jury.
“Mr. Bumps (reading): ‘I do not dare trust any one for your sake until this all blows over.’
Mr. Bartlett: Is that competent, your honor ?
“Mr. Bumps: That goes with the rest of the letter, and shows that this man is in hiding. He is keeping him informed.
The Court: I know, Mr. Bumps, but there is no proof in this case; you have not shown anything where this man is in hiding. It is an inference indulged in by the writer of that letter that this man is in hiding.”

It was competent (within the discretion of the trial court) to show this witness’ connection with the defendant. The letter was admissible for this purpose, notwithstanding the fact that a jury might believe the statements contained in it which were hearsay, and to prove which the letter was not competent evidence. The court discriminated clearly between the proper and improper use of the letter, even striking out some portions, notwithstanding the fact that they tended to show that this witness was in collusive relations with defendant regarding doubtful transactions. We think there was no error in this.

-Requests to Charge.

Of the requests to charge, it is sufficient to say that some of them are argumentative, and were properly refused. The sixth was sufficiently covered by the charge.

Failure to Instruct.

It is said that the trial judge did not explain to the jury what was necessary to be proven in order to show an intent to embezzle or fraudulently convert. No exception was taken to the failure in relation to this. We think, however, that the charge made the subject sufficiently clear.

Mason’s Testimony.

Mr. Mason, the bank’s cashier, testified that the stock came subject to a charge of $370. The court said that, “upon the proposition of defendant’s intent, the jury might take into consideration the value of the stock as testified to by Mason, when it arrived at the bank.” We think that this could not well be misunderstood. The exact complaint we take to be that this was a suggestion that Mason had stated that the cost of stock to defendant was only $370. There was little opportunity for a mistake as to wbat Mason said, and we think the case should not be reversed upon this ground. It must have been evident that all that was meant was that Mason’s testimony that the stock came to the bank subject to a claim of $370 was proper to be considered upon the subject of the price paid by the defendant in determining his intent.

The judgment is affirmed.

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

Blair, J.

The record does not disclose that any exception was taken to the reading of portions of the Powell letter, nor any motion to strike out or request to charge concerning it. I therefore concur in the result.


author: Carpenter, J.

text:
    PERRY v. AVERY.
    Bankruptcy — Trusts—Payments by Bankrupt — -Recovery by Trustee.
    Where a deed of trust provides: “The trustees during my life are authorized to use for the support and maintenance of my son H., his wife and family, such sum as they may deem necessai'y, not exceeding * * * per month. Payment thereof may be made directly to said H. or to his wife, or to any of his children, or the trustees may themselves expend such money in such support and maintenance” — the trustees, while not bound in advancing money to H. to obtain his promise to repay the same, may do so, and, this having been done, his promise created an obligation which justified his payment to such trustees on account thereof, so that it cannot be recovered by his trustee in bankruptcy.
    Appeal from Wayne; Hosmer, J.
    Submitted February 12,1907.
    (Docket No. 130.)
    Decided April 30, 1907.

      Bill by George B. Perry, trustee in bankruptcy of Horace W. Avery, against George E. Avery and others for an accounting. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    Bowen, Douglas, Whiting & Murfin, for complainant.

      Gray & Gray and Leo M. Butzel, for defendants.
   Carpenter, J.

Complainant, the trustee in bankruptcy of Horace W. Avery, seeks by this suit in equity a decree compelling defendants to pay to him a certain fund, amounting to $4,337.93. This fund originally belonging to said bankrupt came into the hands of defendant, George E. Avery, nine months before the bankruptcy proceedings were instituted, but after said bankrupt was insolvent, though before his insolvent condition was known to the defendants in this suit. Said George E. Avery, by the consent of Horace, paid said fund to his codefendants, who were trustees in a deed of trust made by Nancy Avery, the mother of Horace and of each of the above-named defendants. The purpose of the payment was to repay the aggregate amount of certain advances theretofore made by said trustees to said Horace W. Avery. These advances were made in pursuance of the following provision in said deed of trust, viz. :

“The trustees during my life are authorized to use for the support and maintenance of my son Horace, his wife and family, such sum as they may deem necessary, not exceeding the sum of $208.33 per month. Payment thereof may he made directly to the said Horace W. Avery, or to his wife, or to any of his children, or the trustees may themselves expend such money in such support and maintenance.”

When each of said advances was made, a receipt was given by Horace, of which the following is a copy:

“Received of Avery trustees $208.33, being an advancement made to me by said trustees under the authority of the declaration of trust executed by Nancy C. Avery, upon the transfer to them of her property, and dated July 25th, 1901.
“Horace W. Avery.”

The decisive, question in this case is this: Was Horace under any obligation to repay these advances ? If we consider only the declaration of trust and receipt, we should agree with complainant that he was not. But George E. Avery testifies — and he is corroborated by Horace — that these advances were made upon the promise of Horace that he would repay the same if he subsequently acquired funds, and that, in accordance with this promise, the payment complained of in this case was made. The learned'trial judge, who had the opportunity of observing the witnesses, credited this testimony, and dismissed complainant’s bill. Many reasons are urged why this decree is erroneous. Nearly all those reasons are answered when wé say that we, too, credit said testimony. We think the trial court correctly decided that these advances were made upon the promise of Horace that he would repay the same, if he- subsequently acquired funds.

Complainant insists that the decree is erroneous, because the trustees had no authority to advance money to Horace upon his promise to repay the same. It is said that they had authority to advance the money as a gift, but not as a loan. We answer this contention by saying that they had, in our judgment, authority to do precisely what they did. While they were not bound in advancing money to Horace to obtain his promise to repay the same, it was not improper for them to do so. Indeed, it was in furtherance of the trust that they should, and when they did, the promise of Horace to repay created an obligation which justified the payment under consideration.

The decree is affirmed.

McAlvay, C. J., and Grant,- Blair, and Montgomery, JJ., concurred.


author: Grant, J.

text:
    KROLIK v. CURRY.
    1. Judgment — Res Adjudioata — Matters Concluded.
    A judgment in Canada in favor of a corporation in a suit against it for fraud by means of misrepresentations in the sale of land bars a subsequent suit in this State against the officers of the corporation for the same fraud.
    2. Compromise and Settlement — Effect.
    Where, after affirmance of a judgment in favor of a corporation in an action against it for rescission of a contract for the sale of land, or ior damages for fraud, the plaintiffs settled the controversy with the corporation, such settlement bars a subsequent suit against the officers of the corporation for the same fraud.
    3. Principal and Agent — Fraud of Agent — Liability of Principal.
    A principal accepting the benefits derived from the misrepresentations of his agent, acting within the scope of his authority, is liable.
    4. Same — Action—Parties.
    Where a principal is liable for the misrepresentations of his agent because of ratification, both may be joined in the same action, or each may be sued separately.
    Error to Wayne; Brooke, J.
    Submitted February 15, 1907.
    (Docket No. 47.)
    Decided April 30, 1907.
    Assumpsit by Day Krolik against John Curry and others for fraud and deceit. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Affirmed.
    This is an action of assumpsit, brought under 3 Comp. Laws, § 10421, for fraud alleged to have been committed by the defendants in inducing the plaintiff and his assignors to .enter into a contract for the purchase of certain land in Windsor, Canada. Plaintiff and his assignors were residents of the city of Detroit. Some of the defendants lived in Detroit and others in Windsor; the two cities being on opposite sides of the Detroit river. All resided within a short distance of the land. Its location and character were open to their inspection by the expenditure of a short time and a few cents for transportation across the river. The issues and facts involved are well stated by the learned circuit judge in directing a verdict for the defendants Curry and Anderson, which statement we adopt. It is as follows:
    “This is an action brought by Day Krolik, on behalf of himself and as assignee of seven others, against John Curry and James Anderson, Howard Gr. Harris, and Frank M. McMath, as defendants; the gist of the action being that of fraud. It appears from the exhibits and evidence in the case that the plaintiff and his associates in the year 1892 purchased from the Essex Land, Loan & Improvement Company some 11.2 acres of land in the city of Windsor. Among those associated with the plaintiff in the purchase of the land was one Frank M. McMath, who took a one-tenth interest in the purchase. Some year or two after the purchase McMath sold his interest out to others, and the plaintiff and his then associates continued to hold the property in question up to the year 1900. The land was purchased by the plaintiff and his associates at a time when land values in Detroit and Windsor were very high; the year 1892 having seen values in real estate reach their highest point. It became obvious, however, shortly after that these were fictitious values, and the plaintiff and his associates found themselves unable to dispose of the property at a profit. Various efforts were made by them to close it out during the succeeding eight years until 1900, when an effort was made to dispose of it at auction. This proved abortive, and shortly after that auction sale the plaintiff claims that it was discovered that one of his associates, McMath, to whom I have already adverted, had received $1,000 from the Essex Land, Loan & Improvement Company, as commission for effecting the sale. Thereupon notice of a rescission of the .contract was served upon the Essex Land, Loan & Improvement Company. The company, however, refused to rescind the contract. Some time after this happened the plaintiff in this suit and his associates commenced a suit in the high court of justice of Ontario. This was in the year 1902. This suit was brought for a rescission of the contract, or, if the court should find that the plaintiffs were not entitled to a rescission, then for damages against the Essex Land, Loan & Improvement Company for deceit practiced upon them by that company, through its agents, Curry and Anderson, two of the defendants here. That case was heard by the court without a jury, and the opinion of the learned judge who heard the case goes into the facts quite fully, and finds distinctly that no fraud was perpetrated by the Essex Land, Loan & Improvement Company, through its agents, Curry or Anderson, either in respect of these representations made by McMath as to the value of the land, or in the matter of the concealment from Krolik and his associates of the fact that a commission of #1,000 has been paid by the company to McMath for securing a purchaser for the land. Krolik and his associates appealed that case to the court of appeals for Ontario, and a decision was handed down by the court of appeals upon the 27th day of November, 1903. According to the terms of the judgment then entered, the decision of the court below was affirmed, with the single exception that the plaintiffs were there given leave to apply to the master, when the accounting between the parties was had under the judgment, to be allowed a credit on account of the #1,000 paid to McMath as commission.
    “The matter stood in that shape until April 28, 1904, nearly six months later, when the parties, through their proper representatives, got together in Windsor and settled that action and entered into a new agreement. By the terms of that settlement and agreement, the plaintiffs returned to the Essex Land, Loan & Improvement Company the lands then held by them, and turned over to them the outstanding contracts upon the same, and agreed to pay and did pay the sum of $4,600 in lieu of the amount then due upon the original contract, which was, as I understand it, some #8,000 or $9,000, and the Essex Land, Loan & Improvement Company undertook to carry out the contracts entered into by Krolik and his associates for the sale of the individual parcels of said land, to hold them harmless on account of their covenants respecting the same, and to release them from all of their several obligations under the original contract which was canceled and assigned. The terms of the new agreement were carried out in all respects.

      “Three months later, or on the 27th day of July, the suit at bar was commenced by Day Krolik, acting for himself and as assignee of all the other parties who had been parties plaintiff in the suit in Ontario, and this suit, is against Curry, Anderson, McMath, and Harris. McMath seems to have left the jurisdiction of this court and has not been served, and no appearance has be'en made on his behalf. Harris has all the time since the happening of the events narrated been a resident of Michigan, and therefore the statute of limitations has run against him, so that although the plaintiff was obliged to make the defendant Harris a party, it being his claim that Harris was a participant in the fraud perpetrated upon him, and one of the conspirators in the fraudulent acts complained of, yet he admits here that he is not entitled to any relief as against Harris by reason of the fact that the statute of limitations has run in behalf of said Harris. So that, as the case stands, it is in effect a case of Day Krolik, acting for himself and as assignee of his associates, against Anderson and Curry, for fraud and deceit practiced Upon them in the sale of this property to them through McMath.
    “After the examination of the plaintiff, Day Krolik, and the introduction of various exhibits constituting the testimony, opinions, and judgments in the Canadian courts, the attorneys for the various defendants move that the court direct a verdict for the defendants upon two grounds: First, that the subject-matter of this suit, to wit, the fraud of Curry and Anderson in inducing this plaintiff and his associates to enter into this contract through misrepresentations made by McMath, has already been litigated in the suit tried in Canada, and is therefore res judicata; or, in other words, settled by the judgment in the Canadian case. The second claim made by the defendants’ counsel is that, even though the judgment of the Canadian court does not constitute a bar to the prosecution of this action, the settlement arrived at betweerfthe parties upon April 28, 1904, and the new contract then entered into, operates as an accord and satisfaction between the parties to this suit, and also as a waiver of any rights which the plaintiffs might have had to proceed against these two defendants for fraud and deceit, under the original contract.
    ■ “Upon the first of these questions, it seems to me quite clear that the judgment of the court of appeals fully affirms the judgment of the lower court, which I understand to mean that the plaintiffs failed to make out a case of fraud against the defendant, the land company. It is quite obvious that the Essex Land, Loan & Improvement Company could not be guilty of fraud, except through the acts of its executive officers, and those executive officers are and were then Curry and Anderson, the two defendants who are here, and who it is admitted conducted all the negotiations and did all the acts which constitute the subject-matter of this litigation. It is true-that the court of appeals intimated that Justice Ealconbridge might be in error with regard to the $1,000 commission paid; but the plaintiff has up to the present time declined to avail himself of the intimation contained in the judgment of the court of appeals, and, in fact, by his settlement of that suit, has now precluded himself from the right to avail himself of that clause, unless we assume that, in the adjustment had between the parties already adverted to, that was taken into consideration, as it doubtless was.
    “ I have therefore reached the conclusion, upon this branch of the case, that the whole question now before us for consideration has been litigated and a final judgment had thereon.upon the merits in another jurisdiction, and that by that judgment the court declared that no fraud had been committed by the Essex Land, Loan & Improvement Company, and by clear inference no fraud had been committed by Curry or Anderson, its executive officers.
    “ Touching the second question, that of the settlement, it may be true, as urged by counsel for the plaintiff, that when the settlement was reached between the plaintiffs and the Essex Land, Loan & Improvement Company, and the new agreement entered upon, it was not specifically set down that each party released the other party, its agents, and privies from any claim, but it seems to me obvious that it was the clear intention of the parties at that time to reach an adjustment of this whole matter. By that settlement this plaintiff clearly adjusted whatever was in controversy in that suit, and it is idle to claim that among the things sued for was not the question of damages for the alleged fraud and deceit of these two defendants as representing the corporation, the land company. So that, in view of that adjustment and settlement, whether or not the judgment entered in the appellate court operates as a bar to the prosecution of this action, I am constrained to instruct you that the cause of action for which this present suit is brought, has been fully adjusted and satisfied.
    “Your verdict will therefore be for the defendant.”
    The learned trial judge of the Canadian court, in his opinion, said:
    “ The defendant company did not recognize the attempted rescission, but continued to claim payment of the balance due to them under the agreement, and this action was not brought until June 5, 1902, more than 10 years after the date of the agreement. Leaving out of consideration for the moment the question of the responsibility of defendant company for any statements of McMath, I should not find on this evidence the alleged misrepresentations as to the value to have been anything more than a statement of opinion. I do not know that I would be justified in finding any statement which he made to have been so flourishing as to reach the limit of exaggeration.
    ‘ ‘ Eighteen ninety-two was, in the parlance of the day, a ‘ boom ’ time for Windsor. Prices were no doubt beyond actual values for any immediate purpose except to sell again, but still higher prices were looked for. The purchasers could have no ground for neglecting to examine for themselves property so accessible, and to ascertain its real condition.
    “ The president and secretary of the defendant company swear that it was worth the price paid in 1892, and is worth it now, although it was not so probably in 1900. Mr. H. T. W. Ellis says that he would not have taken less than $1,000 or $1,200 per acre for it if it had been his in 1892.
    “Mr. B. H. Rothwell says he would not be afraid to take it today at $1,000 an acre, and make money out of it. Mr. Noble A. Bartlett thinks the price paid was fair at the time. Mr. Patrice Guillette says it was worth in 1892, according to the properties around it, $1,000 an acre, anyway. There were other witnesses who gave opinions of value of a widely different character, but these examples are sufficient to show that.no man expressing an opinion on the same line of these gentlemen could be accused of making a fraudulent misrepresentation.
    “ I do not find that there was any fraudulent suppression of the fact that McMath was getting a commission from the defendant company brought home to any officer or member of the company. They simply employed him as an agent to sell the land for a definite commission. The amount of the commission was $1,000, which was large, having regard to the amount of the purchase money, $11,500, but that is explained by the fact that the defendants, who were also interested in other adjoining properties, thought they were securing purchasers who would advertise, develop, and ‘boom’ the property to the advantage of the other interests which defendants had in the vicinity. And I find, as a fact, that defendant company, being moved by these considerations, refused an offer which would have netted them $?00 more than plaintiffs agreed to pay.
    “ I do not find that the fnere fact that Curry was told by McMath that he (McMath) was taking a temporary interest in the transaction cast on him the duty of informing the others that McMath was getting a commission and to what amount. This statement, made in Krolik’s presence, was likely to have the opposite effect upon Curry, and it was the duty of Krolik then to have investigated the nature of the relations between McMath and the vendors. * * *
    “The action will be dismissed, with'costs, and there will be a judgment for defendant company on the counterclaim, with costs, amount of balance due to be settled by the master, if the parties cannot agree.”

      Bernard B. Selling, for appellant.

      Malcolm McGregor and Brennan, Donnelly & Van De Mark, for appellees.
   Grant, J.

(after stating the facts). By the judicature act of the Ontario legislative assembly of 1881, it was enacted:

“ The high court of justice and the court of appeal respectively, in the exercise of the jurisdiction vested in them by this act in every cause or matter pending before them respectively, shall have power to grant, and shall grant, either absolutely, or on such reasonable terms and conditions as to them shall seem just, all such remedies whatsoever, as any of the parties thereto may appear to be entitled to, in respect of any and every legal or equitable claim properly brought forward by them respectively in such cause or matter; so that, as far as possible, all matters so in controversy between the said parties respectively may be completely and finally determined and all multiplicity of legal proceedings concerning any of such matters avoided.” 1 Rev. Stat. 1887, chap. 44, § 52, subd. 12.

The rules adopted by the Canadian court provide:

“ Every statement of .claim shall state specifically the relief which the plaintiff claims, either simply or in the alternative, and may also ask for general relief. And the same rule shall apply to any counterclaim made, or relief claimed by the defendant, in his statement of defense. If the plaintiff’s claim be for discovery only the statement of claim shall show it. * * *
“All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative, and, without any amendment, judgment may be given against one or more of the defendants, according to their respective liabilities.”

The plaintiffs planted their suit in Canada under the above act and rules of pleading. They deliberately asked two remedies: (1) The rescission of the contract; and (2), if they were not entitled to rescission, damages for fraud alleged to have been practiced upon them by the agents of the corporation. The corporation through its officers, the appellees in this suit, specifically denied the fraud and misrepresentations, and asserted a counterclaim for the amount due under the contract, and asked judgment for that amount. All the issues that are now made were there deliberately made by the plaintiffs. AlPthe issues were decided against them. Not content with the decision of the trial court, they appealed to the appellate court, and in their statement of claim, which, under the practice in Canadian courts, they were required to make, they deliberately alleged error, both in the failure to grant the rescission of the contract, or, in the alternative, to give damages for the fraud, if they were denied rescission.

This, therefore, is not a case of mistaking a remedy. It is rather a case where the plaintiffs seek to try anew the same issues that were tried in the Canadian court. Where a litigant has chosen to proceed against the agents of a corporation for misconduct on their part and has been defeated, he is thereby barred from litigating the same cause of action against the principal. Emma Silver Mining Co. (Limited) v. Emma Silver Mining Co. of New York, 7 Fed. 401. It follows that a determination of the issue in a suit brought against the principal bars an action against the agents. Emery v. Fowler, 39 Me. 329.

After the affirmance of the judgment in the appellate court the plaintiffs'settled the entire controversy. They were relieved from the payment of a large part of the judgment against them, and reconveyed the property to the corporation. That settlement was made with and through the appellees, Anderson and Curry, as the duly authorized officers' of the corporation. McMath, who is charged with making the false representations as to value, was the accredited agent of the corporation to effect the sale.

We agree with the finding of the Canadian court that there was no false representation as to value. Plaintiffs bought the land for speculation. They bought during a “boom,” when values were at the highest point. They soon after contracted to sell some of the lots for $6,950. They were sold upon a contract, and, with the fall of the boom, prices went down, and most of the lots reverted to them. They would have realized a very large profit on these lots, in some cases 100 per cent.

It is not claimed that Anderson and Curry made any representations or authorized McMath to make any representations as to the value. The court was right in holding that the representations were simply expressions of opinion. Counsel for the plaintiffs seek to make the fraud in this case a deceit, and therefore claim that the corporation would not be liable in an action for deceit. The true test is: Was the fraud or deceit (the name is immaterial) practiced by the agent one for which the principal is liable ? If the agent acts within the scope of his authority and his principal accepts the benefits derived from the misrepresentations, the principal is liable, and both may be joined in the same action, or each may be sued separately.

In the case of Wilson v. Hotchkiss, 2 Ont. L. R. 261, the court says:

“ The case established is the ordinary one of principal and agent, and there is nothing to take it out of the general rule that the master or principal is answerable for every such wrong of his servant or agent, as is committed in the course of his service or for his master’s or principal’s benefit, or, to speak more accurately, for his master or principal, though no express command or privy be proved.”

See, also, Mackay v. Commercial Bank of New Brunswick, L. R. 5 P. C. 394; Citizens’ Life-Assurance Co. v. Brown, A. C. (1904) 428; Frankenburg v. Horseless Carriage Co., L. R. 44 Q. B. Div. 504; Ontario Industrial Loan & Investment Co. v. Lindsay, 4 Ont. R. 473; 10 Cyc. p. 1207; 2 Current Law, pp. 6008.

It follows that the entire issue in this case was settled against the plaintiffs by the judgment of the Canadian court, and is res adjudicata. It also follows that the settlement with the corporation was also a settlement with these defendants.

The judgment is affirmed.

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


author: Montgomery, J.

text:
    ATWOOD v. SAULT STE. MARIE LIGHT, HEAT & POWER CO.
    1. Names — Identity oe Persons — Evidence.
    Identity of names prima facie establishes identity of persons.
    2. Corporations — Actions—Process—Service.
    Service of process against a corporation-on an officer or agent whose relation to the plaintiff or the claim in suit is such as to make it to his interest to suppress the fact of service is unauthorized, though the person served is within the terms of the statute authorizing service.
    3. Same — Assigned Claims.
    Where suit is brought against a corporation on an assigned claim for personal services, service of process on the officer who assigned the claim is unauthorized.
    Error to Chippewa; Steere, J.
    Submitted February 35, 1907.
    (Docket No. 142.)
    Decided April 30, 1907.
    . Assumpsit by Frank B. Atwood against the Sault Ste. Marie Light, Heat & Power Company for services rendered. There was judgment by default for plaintiff based on a defective service of the declaration, and defendant brings error.
    Reversed.

      Oren, Webster & Oarleton and J. H. More, for appellant.

      M. F. McDonald (F. S. B. Sutton, of counsel), for appellee.
   Montgomery, J.

This case was commenced by declaration, filed in the office of the clerk of the circuit court for Chippewa county. The declaration was in assumpsit, and counted specially upon a contract for personal services performed by John N. Goltra for the defendant corporation for a period of 25 months succeeding the date of the contract, alleged to have been made on December 5, 1901, and alleging that there was due and owing said Goltra on account thereof the sum of $1,875. The declaration also averred that on September 11, 1905, said John N. Goltra had duly assigned said claim to the plaintiff in this case, Frank B. Atwood. The return of the sheriff shows that service was made upon the defendant company by delivering a true copy of the declaration, etc., to John N. Goltra, secretary and assistant treasurer of the defendant corporation. No appearance was entered by defendant, and judgment was entered by default in the sum of $2,200. The writ of error was sued out, and the defendant assigns as error that the service was invalid, for the reason that, the claim sued upon being one assigned by John N. Goltra, service upon him was unauthorized.

The plaintiff contends that the record does not sufficiently show that the John N. Goltra who was served is the same John N. Goltra who assigned the claim sued upon. We think, however, that the identity is prima facie established bytheidentity of names 6 Enc. Evidence, p. 913. John N. Goltra was an officer of the company upon whom service could be made under the statute. But it is established by authority — if authority for a rule so manifestly just were needed — that even though a person is within the terms of a statute, if his relation to the plaintiff or the claim in suit is such as to make it to his interest to suppress the fact of service, such service is unauthorized. Buck v. Manufacturing Co., 4 Allen (Mass.), 357; St. Louis, etc., Coal & Mining Co. v. Edwards, 103 Ill. 472.

It is insisted, however, that, as the claim of Goltra had been assigned before service was made upon him, he was at the time of service disinterested. There is nothing of record, except the statement that the account was assigned, to show the nature of the contract of assignment. We think that in such case there is a prima facie presumption that there was an implied warranty that a chose in action which was the subject of the contract existed in fact. 2 Am. & Eng. Enc. Law (3d Ed.), p. 1090.

It follows that Goltra had an interest in the claim in suit adverse to the defendant, and that service upon him was unauthorized. See White House Mountain Gold Mining Co. v. Powell, 30 Colo. 397.

The judgment is reversed, with costs.

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


text:
    COURTIS v. GARRISON.
    1. Justices of the Peace — Special Appeals — Grounds.
    In a special appeal from the judgment of a justice of the peace, allegations of error that the court had no jurisdiction, that defendant being a nonresident the case should have been begun by short summons, etc., are too general to require definite answer.
    2. Same — Review in Supreme Court— Questions Considered.
    On review in this court of a cause originating in justice’s court and appealed specially to the circuit court, the point that an unauthorized adjournment was had injustice’s court will not be considered, where the affidavit for special appeal does not specifically raise it and the return is silent upon the question.
    3. Same — Defects of Process — Short Summons.
    It is error to reverse a judgment of a justice of the peace on special appeal on the ground that defendant being a nonresident the case should have been begun by short summons, where the summons did not show the fact-of nonresidence, the defendant did not appear, and at the time the judgment was rendered there was nothing on the record to suggest the fact of nonresidence.

      4. Same — Special Appeal — Questions Considered.
    Section 903,1 Comp. Laws, limits the questions to he reviewed by special appeal from justice’s court to those actually decided by the justice or reasonably involved in his action.
    Error to Wayne; Mandell, J.
    Submitted February 12, 1907.
    (Docket No. 150.)
    Decided April 30, 1907.
    Assumpsit in justice’s court by William M. Courtis against Samuel Garrison for services rendered. There was judgment for plaintiff, and defendant took a special appeal to the circuit court. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      Sloman & ploman, for appellant.

      Manchester & Prentis, for appellee.
   Montgomery, J.

Plaintiff brought suit against defendant in the justice’s court of the city of Detroit, and on March 31, 1905, recovered a judgment of $190 damages and $1.75 costs. The action was commenced by a long summons, and defendant was duly served, as shown by the officer’s return and the admissions of the defendant.

Defendant filed a special appeal to the circuit court, setting up the following grounds therefor:

“ 1. That said justice erred in rendering said judgment on said 31st day of March, A. D. 1905, because he had no jurisdiction to render said judgment at that time.
“ 2. That said justice erred in entertaining and trying said case, the summons issued in said cause being returnable more than six days from the date thereof, and affiant being a nonresident of the county of Wayne and State of Michigan, and the law of Michigan requiring a summons issued against a nonresident to be made returnable not less than two nor more than six days from the date thereof.
“3. Bepause affiant being a nonresident of said Wayne county, Mich., said case should have been commenced by short summons instead of by a long summons.
“ 4. Because said deputy sheriff, Frank G. Curtis, had no right or authority to accept plaintiff’s declaration in said case on said March 24, A. D. 1905.
“ 5. Because said justice, Felix A. Lemkie, had no jurisdiction to render any judgment in said cause or to do any act with regard to said case upon said 31st day of March, A. D. 1905, except to dismiss said case.”

The justice’s return to the special appeal answers the second point as follows:

“Tothe second allegation of error, I return that there was nothing on the face of the summons (of which I hereto attach a copy) to show that the defendant was a nonresident of the county of "Wayne, and, as the defendant did not appear, and no objection on that ground being made, so that an issue of fact might be framed and tried, and no showing being made before me of such nonresidence, I had no alternative but proceed to the trial of said cause and render judgment as herein stated.”

The other allegations of error are obviously too general to call for definite answer.

It is true defendant’s cofinsel seek to make the point in this court that an unauthorized adjournment was had, but no one reading this affidavit would have been led to consider this point, and the return is silent upon the question.

The question which it would seem controlled at the circuit was that presented by the second assignment of error. The judgment of the justice of the peace was reversed, and the plaintiff brings error.

The statute (1 Comp. Laws, § 903) permits the party appealing from a judgment in justice’s court to raise by special appeal any objection to the process, pleadings, or proceedings, and to the decision of the justice thereon, which would not be allowed to be made on the trial of the appeal. In the present case the return of the justice does not affirmatively show that the defendant is a nonresident. On the other hand, it shows affirmatively that, when the decision of the justice was made, there' was nothing on the record to suggest that such was the fact. It is clear that the purpose of the special appeal is to enable .the appellant to have reviewed the decision of the justice upon the questions covered by the special appeal. The justice may be called upon to make a decision of a question which may be thus reviewable when the point is not distinctly made before him where a defect of jurisdiction appears of record. Wright v. Russell, 19 Mich. 346; E. S. Knowles & Son v. Cavanaugh, 144 Mich. 260. But the statute plainly limits the questions. to be reviewed by special appeal to those actually decided by the justice or reasonably involved in his action. Lymburner v. Jenkinson, 50 Mich. 488. The defendant does not prove error by an affidavit, and there is no provision for framing an issue to have a determination of facts not within the knowledge of the justice or established by his return. See case last cited. There was error in reversing the justice’s judgment on this ground.

The judgment of the circuit court is reversed, with costs of this court, and an attorney’s fee at the circuit as for a trial of an issue of law, and the case is remanded for trial upon the general appeal.

McAlvay, O. J., and Carpenter, Grant, and Blair, JJ., concurred.


text:
    TOWNSHIP OF PORTSMOUTH v. CRANAGE STEAMSHIP CO. SAME v. McGRAW TRANSPORTATION CO.
    1. Taxation — Situs of Property — Navigation Companies.
    The property of a corporation engaged in maritime commerce or navigation is taxable in the place where its general business office is located, and not at the place named in its articles of association as the location of its general office for business, but at which it has no property.
    2. Same — Estoppel to Contest Assessment.
    The act of the officers of a navigation company in listing its property for taxation in a township in which it is not legally taxable does not estop the corporation from contesting the validity of the tax, where their course in so listing their property, and that of the township officers in assessing it, was based on an erroneous assumption that a statute which had already been declared unconstitutional was constitutional.
    8. Same — Failure to Contest Before Board of Review.
    The navigation company is not estopped because it failed to appear before the board of review and contest its assessment.
    Case made from Bay; Collins, J.
    Submitted February 14,1907.
    (Docket No. 151.)
    Decided April 30, 1907.
    Assumpsit by the township of Portsmouth against the Cranage Steamship Company and the McGraw Transportation Company for taxes. There was judgment for defendants, and plaintiff appeals.
    Affirmed.

      Cooley & Hewitt, for appellant.

      Qillett & Clark, for appellees.
   Carpenter, J.

A suit to recover taxes assessed for the year 1905 was brought by said plaintiff against each of the above-named defendants. The facts in each case being the same, the two suits were consolidated. They were tried before the court without a jury. A finding of facts was made, and judgment rendered in favor of defendants. The proceedings are brought before this court for review by a case made after judgment. The defendants are corporations engaged in maritime commerce or navigation. Their articles of association name Portsmouth township as the location of their general office for business. The corporations listed their property for taxation for the year 1905 in said township. No property of said defendant corporations was in fact situated in said township, and their general business office was located in Bay City. Defendant corporations were therefore taxable, not in plaintiff’s township, but in Bay City ( Teagan Transportation Co. v. Detroit Board of Assessors, 139 Mich. 1 [69 L. R. A. 431]), and it was in fact there taxed.

Plaintiff contended in the lower court and contends in this court that the principle of estoppel applies, and obligates defendants to pay said taxes. Does that principle apply ? Plaintiff insists that it. does. It insists that the tax was assessed and obligations thereby imposed on plaintiff, because defendants stated in their articles of incorporation, in their report to plaintiff’s assessing officer, and verbally to said assessing officer, that their general business office was located in said plaintiff township. It is true that such statements were made, and the consequent liabilities resulted therefrom, but there is no finding of facts that plaintiff’s assessing officer believed that defendants’ general office for business was actually located in said township, and from the facts found no such inference can be drawn. It appears from said finding of facts that after the foregoing statements were made, plaintiff’s assessing officer was in such doubt as to his duty that he “consulted the assistant prosecuting attorney, who advised him that the principal business office of such a corporation was wherever the officers swore it was located, and it is there that such corporations are liable for assessment.” It is to be inferred from the finding of facts that the property was assessed in plaintiff township, not because its assessing officer believed defendants’ general business office was there located, but because he believed that defendants had a right to select, and by the statements above referred to had selected, that township as the situs for the taxation of their personal property. It appears, too, from said finding that the defendants “ acted in good faith, and had not at that time been advised that the excepting of navigation companies from the general provisions of section 11 of the general tax law had been held unconstitutional.” (It is to be observed that what is above referred to as an exception to the tax law — declared unconstitutional in Teagan Transportation Co. v. Detroit Board of Assessors, supra — made the personal property of transportation companies taxable in the municipality, which is stated in their articles of association to be the location of their general office for business.”) This, then, is not a case in which plaintiff’s taxing officer was deceived by any statement of fact made by defendant. It is a case in which everybody concerned acted upon the erroneous assumption that the law which had already been declared unconstitutional was constitutional. It is simply a case of a mutual mistake of law. It is ruled by Smith v. Sprague, 119 Mich. 148, where we held that the doctrine of estoppel did not apply. See, also, McKeen v. Naughton, 88 Cal. 467; Brewster v. Striker, 2 N. Y. 19; Bigelow on Estoppel, p. 572.

Plaintiff also contends that defendants are estopped because they did not appear before the board of review and contest their assessments. This contention is answered by the following decisions: City of Detroit v. Transportation Co., 140 Mich. 174; Woodmere Cemetery Ass’n v. Township of Springwells, 130 Mich. 466.

Judgment affirmed.

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