text:
      In re BUSH’S ESTATE. SIGNS v. BUSH’S ESTATE.
    1. Contracts — Promises-—Consideration.
    A promise made by one person to another for the benefit of a stranger to the consideration will not support an action by the latter.
    2. Trusts — Not Created by Parol — Statutes.
    A claim against the estate of a deceased person for a sum of money which it is claimed that deceased orally promised the mother of the claimant he would bequeath to the latter in consideration of the promisee furnishing him with a part of the purchase price of certain land,- cannot be sustained on the theory that the portion of the land represented by the amount furnished, was held in trust for the claimant, since under 3 Comp. Laws, § 9509 (3 Comp. Laws 1915, § 11975), a trust in land cannot be’ created by parol.
    3. Same — Resulting Trusts — Statutes.
    The claim, would not be sustained on the theory of the existence of a resulting trust, since the statute, 3 Comp. Laws, § 8835 (3 Comp. Laws 1915, § 11571), provides that “when a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made,” etc.
    4. Same — Trusts in Personalty.
    The claim could not be sustained on the theory of the existence of a trust in personalty whereby the deceased was to pay the trust fund from the proceeds of the sale of "the land at a later timé, or of a fund which was not in existence at the time the agreement was made, since no trust could be created in the personalty until the sale of the land, and there was no evidence of any contract or express declaration of trust, written or oral, after such sale was actually made, and the transaction created a mere debt.
    5. Same — -Promises.
    The promise made to bequeath did not create a valid trust enforceable by the daughter after the promisor’s death, but at most was a mere debt, recovery on which may be had by the proper party as claimant.
    6. Contracts — Judicature Act — Retroactive Effect.
    Act No. 314, Pub. Acts 1915, chap. 12, § 2, of the judicature act (3 Comp. Laws 1915, § 12353), providing that “every action shall be prosecuted in the name of the real party in interest,” etc., cannot be invoked to give to an alleged “real party in interest” a right of action which did not exist at the time of bringing action.
    Error to Genesee; Stevens, J.
    Submitted October 9, 1917.
    (Docket No. 68.)
    Decided December 27, 1917.
    Grace A. Signs presented a claim against the estate of Charles W. Bush, deceased, for an amount agreed by testator and another should be devised to claimant by will. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. Judgment for contestants on a directed verdict, claimant brings error.
    Affirmed.

      Ellis & Ellis, for appellant.

      Clarence Tinker (George W. Cook, of counsel), for appellee.
    The claim which appellant is asserting against the estate of Charles W. Bush arose as follows: In February, 1881, her parents, William H. and Harriet E.. Bush, were residing in South Ionia, in a house owned by. the latter. At that time claimant’s uncle, Charles W. Bush, was desirous of purchasing a certain farm of 100 acres in Sebewa, Ionia county, and of having his brother William and family make their home thereon. Finding that the owner would be willing to take in part payment the house and lot in South Ionia belonging to Harriet E. Bush, he explained his plan to Mr. and Mrs.'Bush, and asked the latter to help him carry out the transaction by deeding her said home, at a valuation of $1,000, promising her that, if she would do so, he would by his will bequeath $1,000, plus a sum equal to interest thereon at the legal rate from the date of the transaction to the time of his death, to her two daughters, or the survivor in case either died leaving no children; if either died leaving children, such children to take her one-half. After some objection, Mrs. Bush agreed to this proposition and deeded her house and lot to the owner of the farm, named Collier, who at the same time deeded the farm to Charles W. Bush for a consideration of $4,500, of which $2,500 was paid in cash by Charles W. Bush, and $1,000 by Mrs. Harriet Bush’s house and lot, the balance being taken care of by Charles W. Bush assuming mortgages outstanding on the farm property amounting to $1,000. The arrangement and agreement between Charles W. Bush and Harriet E. Bush was made orally.
    It appears that pursuant to an oral agreement between Charles W. and William H. Bush, the latter moved onto the farm with his family and lived therec, until his death — and the family, or some of them, for a while after his death — paying the taxes, keeping up the interest on the mortgages, making improvements on the property, and having the use and benefit of the farm. Some time after the death of William, however, Charles W. Bush requested the widow, Harriet, to leave the farm, promising her that if she would leave peaceably, and not cause him any trouble, he would buy a smaller place and give her the use of it during her lifetime, and also that he would carry out his agreement relative to bequeathing the $1,000 and interest to her daughters as above set forth. Prior to the death of Charles W. Bush, one of the two daughters of Harriet E. Bush died, leaving no children. The surviving daughter is the claimant, Grace A. Signs. To the said Grace A. Signs, Charles W. Bush, by his will made in 1906, bequeathed only the sum of $100; said bequest being preceded by the following clause:
    “I hereby make the following bequests upon the express condition that they shall be in lieu of and in full payment and satisfaction of all claims, right, title, and interest of the legatees and devisees hereinafter named in and to my estate.”
    Upon his death, this instrument was admitted to probate as his last will and testament. Mrs. Signs did not take the $100 mentioned in the will, but filed a claim in the probate court for:
    “One thousand dollars ($1,000.00), together with interest thereon as follows: At seven (7) per cent, from February 23, 1881, to October 2, 1891; at six (6) per cent, from October 2, 1891, to September 22, 1899; at five (5) per cent, from September 22, 1899, to the date of the above testator’s death, less one hundred dollars ($100.00) provided for by testator’s will”
    —setting up, also, the foregoing facts by way of explanation. The probate court thereupon appointed commissioners on claims, who disallowed the claim,, and an appeal to the circuit court resulted in a directed verdict in favor of the estate, upon which judgment was duly entered.
   Kuhn, C. J.

(after stating the facts). We think that the situation here presented is fairly summed up in the brief of counsel for appellee in the following statement:

“Thus we have a contract that Harriet E. Bush conveyed a piece of real estate to Collier, Collier conveyed real estate to Charles W. Bush, and Bush promised to make a will leaving a bequest to two daughters of Harriet E. Bush, or their survivor (strangers to the contract), of one thousand ($1,000.00) dollars, with legal interest from the date of such conveyance to ¿he date of the death of Charles W. Bush.”

The trial judge, after hearing the evidence, on motion duly made, directed a verdict for the defendant, in which he in part said:

“She (referring to Mrs. Bush) furnished the consideration; but the will was not to be made to her, made to her daughters. Her daughters were strangers to the transaction, and I believe it to be the law that no one can maintain an action of this kind upon such a promise, except it be the one who made the contract, and that was the mother of this girl. So, gentlemen, I do not think this plaintiff can maintain the action. I think that is the simple proposition; that she is not a party to the contract. She furnished no consideration. The consideration for the promise of Mr. Bush came through their mother, and the fact she had some talk with them afterwards about it I do not think is material at all. So, gentlemen, your verdict will be in this case that the claim is disallowed, and the clerk will take your verdict without your leaving your seats.”

No serious claim is made that a promise made by one person to another for the benefit of a third — a stranger to the consideration — will support an action by the latter, according to the law of this State. See Linneman v. Moross’ Estate, 98 Mich. 178 (57 N. W. 103, 39 Am. St. Rep. 528); Wheeler v. Stewart, 94 Mich. 445 (54 N. W. 172); Edwards v. Clement, 81 Mich. 513 (45 N. W. 1107); Hicks v. McGarry, 38 Mich. 667; Knights of Modern Maccabees v. Sharp, 163 Mich. 449 (128 N. W. 786, 33 L. R. A. [N. S.] 780); Edwards v. Thoman, 187 Mich. 361 (153 N. W. 806). But the contention is made that a trust relationship was created by this transaction, and that Charles W. Bush held the $1,000 in money in trust, and that in effect he agreed to invest it and to pay the beneficiary by his will the principal, with legal interest. There is no question raised but that the alleged agreement was oral, and that there was no writing to evidence the agreement. Did the oral agreement between Charles Bush and Harriet Bush create a trust whereby Charles Bush was to hold the fund of $1,000 in trust for Grace Signs, the claimant herein?

It is stated in the brief for the appellee that if a trust existed, it must come under one of the following three subdivisions:

“First. That that portion of the farm represented by the sum of $1,000 was held in trust for claimant; or
“Second. That the title to the farm having been taken in the name of Charles W. Bush, a trust resulted because of the fact that a portion of the purchase price was provided by Harriet E. Bush; or
“Third. That a trust in personalty was created by the agreement, whereby Charles W. Bush was to pay the trust fund arising from the proceeds of the sale of the farm at a later time, or of a fund which was not in existence at the time that the agreement was made.”

With reference to the first subdivision, we think it is properly contended that there could be no trust created by parol as to any interest in the real estate, because the statute (4 How. Stat. [2d Ed.] § 11393, 3 Comp. Laws 1915, § 11975) provides that no trust or power over or concerning lands, or in any manner relating thereto, shall be created, granted, assigned, surrendered or declared, unless by act or operation of law or by deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by some person thereunto by him lawfully authorized by writing.

Neither could a resulting trust be created by parol under the second subdivision, because of the statute (4 How. Stat. [2d Ed.] § 10675, 3 Comp. Laws 1915, § 11571), which provides:

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

With reference to the third subdivision, it appears that there is no evidence in this record of any contract or express declaration of trust, written or oral, after the sale of the farm by Charles Bush. No trust could be created in the personalty until the sale of the real estate. This is not a case of a cestui que trust suing to recover from the trustee for property which she had turned over to the trustee to be invested for her, as the case of Frank v. Morley’s Estate, 106 Mich. 635 (64 N. W. 577). In this class of cases the verbal agreement was in reference to personalty then in existence and does not present the same situation which is now before us. In the case at bar the evidence does not disclose that there was any agreement whatever about the sale of the Sebewa farm. The contract with Charles Bush was to make, a will and leave $1,000 to the two daughters of Harriet E. Bush, or their survivor. Under this contract it was to be done whether he had sold the farm or not, and no reference is made to the proceeds of the sale of the farm, when sold. We conclude that there is no valid and enforceable trust created by the alleged' contract. See 39 Cyc. p. 65; Wellington v. Sedgwick, 12 Cal. 469; Steele v. Clark, 77 Ill. 471; Clark v. Wright, 24 S. C. 526; Billings v. Warren, 21 Tex. Civ. App. 77 (50 S. W. 625); Marston v. Humphrey, 24 Me. 513. The transaction at most created a mere debt, recovery for which might be had by the proper party as claimant. See 39 Cyc. p. 73.

It is suggested that .by virtue of section 2, chap. 12, of the judicature act (Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 12353), this action could now be prosecuted by the claimant, as she is the real party in interest. This section provides:

“Every action shall be prosecuted in the name of the real party in interest,” etc.

This was not in effect at the time that the claim was filed, and the claim was pending when this law went into force. It is urged that the judicature act is merely a practice act and that a practice act should be held to apply to cases pending when such act went into effect, and the case of C. H. Little Co. v. L. P. Hazen Co., 185 Mich. 316 (152 N. W. 95), is referred to, to sustain this contention. We there held that where a statute affects purely the method of applying the remedy to the rights of the parties, and not the rights themselves, even though passed subsequent to commencement of suit, it is fully applicable to all pending cases. But the situation before us is not merely a question of applying the remedy to the rights of the parties, but under the law as it existed at the time this claim was filed, the claimant had no rights arising out of the transaction against the defending estate. To hold that the statute here invoked would sustain appellant’s contention would give the claimant a right which she did not possess at the time she filed her claim. If she had had a right or a claim at that time and had pursued an improper remedy, which was subsequently recognized by statute, it would present a similar situation to that referred to in the Little Case, supra.

It is- further claimed that the contract was in effect assigned by the mother to the claimant, and that a written assignment was made by the mother to the claimant in the affidavit filed by her in support of the claim. We are of the opinion, however, that this affidavit, which recites the history of the transaction, is nothing more than a statement of the legal conclusion of the mother as to the status of the claim, and should not be construed as an assignment by her to the claimant of any of her rights arising out of the transaction.

We are of the opinion that the judgment of the court below must be and is hereby affirmed.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


source: Caselaw Access Project

author: Kuhn, C. J.

license: Public Domain

text:
    PORRITT v. DETROIT UNITED RAILWAY.
    Master and Servant — Workmen’s Compensation Act — Course op Employment.
    The death of a railroad fence repairer arises as the result of an accident in the course of his employment, where it is his duty to report at a substation for instructions as to place to work at a certain time each morning, and he receives pay beginning at such time, but, owing to rain, does not report at such time one morning, and is requested by the foreman to proceed to the place of work, to which he assents, but declines a ticket proffered by the foreman, stating that he prefers to walk, and, pursuant to custom among employees, when not riding, starts down the right of way and is struck and killed by one of the employer’s cars.

    Certiorari to Industrial Accident Board.
    Submitted October 22, 1917.
    (Docket No. 84.)
    Decided December 27, 1917.
    Ethel Porritt presented her claim for compensation against the Detroit United Railway for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Affirmed.

      Corliss, Leete & Moody and Benjamin S. Pagel, for appellant.

      Pelton & McGee, for appellee.
    The facts necessary to understand the issue involved are thus concisely stated in the findings of the board on hearing on review:
    “The applicant in this case claims compensation for the death of her husband, Joseph Alfred Porritt, an employee of the Detroit United Railway, killed by a car of that railway on the 29th day of November, 1916.
    “For three weeks prior to the accident, deceased had been employed as a fence builder along the line of respondent. The foreman of the gang either called' at his house or he reported to the substation, which was adjacent to his home in the village of Oxford, every morning, and he received directions from said foreman. The respondent carried the employees, including the deceased, to the work on the local passenger car, and brought them back to the substation on the local passenger car. They were paid from the time they left the substation until the time they returned to it, with an hour out for lunch. The service on this line was a two-hour service, and, when a car was not available, they walked along the direct route to their work, which was along the railway tracks. This was done by the foreman as well as the employees. There was no other way to reach the place in question except by a circuitous route around upon the public highway. It was considerably farther that way. On the morning in question, it was raining, and the decedent did not intend to go to work. The foreman called at his house very shortly before the hour for leaving and said he was going to work, and told the decedent to come to work as soon as he could, and that they would work that day. The foreman offered the decedent a ticket to ride, which was refused on the ground that the employee could get there quicker by walking, to which the foreman assented. The deceased employee apparently started down the right of way, which was the usual route in the absence of taking a car, and in so doing was struck and killed by one of respondent’s, cars. The place where they were working was known as Groover’s Stop, or Rose-dale. It was about a mile from the substation. The decedent was about 80 rods from the place where he was. to work at the time he was struck.”

      On construction and effect of workmen’s compensation acts, generally, see note in L. R. A. 1916A, 23, L. R. A. 1917D, 80.

   Kuhn, C. J.

(after stating the facts). It is the defendant’s contention that the accident did not arise out of and in the course of deceased’s employment, as he had chosen the route to his employment of his own free will and had not even reached the vicinity of his work when the accident happened. The real question seems to be as to whether or not, under the peculiar facts of this case, the relationship of master and servant existed between the claimant’s decedent and the defendant at the time of the accident. In our opinion a critical analysis of this testimony shows that the-relationship had been created. The nature of the employment, that of a fence repair man, precluded any fixed place of employment, and the distance 'to the place of actual work depended, of course, upon the location of the particular fence along the right of way where the repairs were needed, and the testimony of the defendant’s foreman is that the decedent’s pay began at the substation, where the decedent was supposed to report for instructions, and that he drew his pay until his return to the substation, with an hour out for lunch. It was the primary duty of the decedent to report to the substation for his directions for the day, and as he had not appeared on the morning of the accident because of the unfavorable weather conditions, the foreman called at his house, as he had previously done, and there gave him directions for the day. The purpose of the foreman in going to the house was, as he said, to get him to the work, because they needed him. To have waited for the electric car furnished by the company would have necessitated a delay of an hour to an hour and a half, and, in response to the order to report for duty, the decedent said that he would not wait for the car, but would walk, to which suggestion the foreman said he acquiesced.

The case of City of Milwaukee v. Althoff, 156 Wis. 68 (145 N. W. 238, L. R. A. 1916A, 327), is similar in many respects. In that case the decedent was to report to his foreman at 7:30 o’clock each morning to receive instructions as to his work. He did so report, and, after receiving instructions as to where he was to work, proceeded towards the place, and while on his way injured himself, from which injuries he subsequently died. The court in that case said:

“In the instant case, when the servant reported to his foreman and received his instructions for the day and proceeded to carry out these instructions by starting for the place where he was to work, we think the relation of master and servant commenced, and that in walking to the place of work the servant was performing a service growing out of and incidental to his employment.”

We think that an examination of the cases of Hills v. Blair, 182 Mich. 20 (148 N. W. 243), and Guastelo v. Railroad Co., 194 Mich. 382 (160 N. W. 484, L. R. A. 1917D, 69), will show that they are readily distinguishable from the facts now before us. In neither of these cases does it appear that the employee at the time of the accident was acting under direct orders of the employer, and that it was necessary for the employee to report at a certain place apart from the scene of his work before directions as to his day’s work could be had. See Beaudry v. Watkins, 191 Mich. 445 (158 N. W. 16, L. R. A. 1916F, 576); Kunze v. Detroit Shade Tree Co., 192 Mich. 435 (158 N. W. 851, L. R. A. 1917A, 252).

We are of the opinion that it conclusively appears that, at the time the applicant’s decedent met his death, he was on duty in the line of his employment, acting under the direction of his employer, and therefore that the relationship of master and servant had commenced. We conclude therefore that the accident did arise out of and' in the course of the decedent’s employment, and that the board acted properly in so holding. The award is accordingly affirmed, with costs.

Stone, Ostrander,,, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    REESE v. DYER.
    1. Bills and Notes — Lost Instruments — Negotiable Instruments — Indemnity Bonds — Statutes.
    Before an indemnifying bond is required under 3 Comp. Laws 1915, § 12544, it must affirmatively appear that the note was negotiable, because by section 12543, relating to suits on lost notes, the filing of a bond for indemnity is confined to negotiable instruments.
    2. Appeal and Error — Weight op Evidence — Necessity por Exceptions — Assignments op Error — Statutes.
    Under Act No. 314, Pub. Acts 1915, chap. 18, § 15 (3 Comp. Laws 1915, § 12587), providing that exceptions may be filed to findings of fact, that such facts are against the clear weight of evidence, and error may bé assigned upon such exceptions, and, if an appeal is taken, the same shall be reviewed by the Supreme Court, where no exceptions are filed alleging that the findings of a trial court are against the clear weight of evidence and no error is assigned upon any such exception, the evidence will not be weighed, and, if there is any evidence to sustain the findings of the trial court, they will be deemed to be conclusive.
    3. Limitation of Actions — Part Payment — Operation and Effect.
    The statute of limitations does enter into the case in an action on a note, where such note is dated April 21, 1897, is drawn without interest, and no payments are due thereon until 1903, when a sum sufficient to cover payments due for six years is paid, and in 1909 the payment due in such year is paid and an action is .commenced on such note within the statutory period after the first unpaid payment falls due in 1910.
    4. Appeal and Error — Evidence—Depositions—Harmless Error.
    Where the evidence was sufficient to support the court’s findings that a note was not outlawed and no exception was filed alleging that the findings of the court were against the clear weight of the evidence and no error was assigned upon any such exception, the court will not weigh the evidence, and it is consequently immaterial whether a deposition was improperly admitted. ,

      5. Same — Pleadings—Variance—Amendments.
    Any variance between the declaration and proof in an action on a promissory note cannot be availed of where the attention of the trial court was not called to such variance at any time during the trial or thereafter, as, if the objection was timely made, an amendment of the declaration might have been permitted.
    Error to Cass; Des Voignes, J.
    Submitted October 12, 1917.
    (Docket No. 107.)
    Decided December 27, 1917.
    Assumpsit by Ella A. Reese against Arthur G. Dyer and another on a promissory note. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      C. M. Lyle and M. L. Howell, for appellants.

      John R. Carr, for appellee.
   Kuhn, C. J.

This is an action of assumpsit to recover an amount plaintiff claims under the terms of a contract between the defendants and herself and a promissory note referred to therein. Suit was commenced January 27, 1916. The contract in question was entered into on April 21, 1897, in settlement of an appeal taken by plaintiff from the probate of the will of her father, James M. Dyer, and reads as follows:

“Whereas, Ella Wetherbee has appealed from the probate of her father’s will on the ground of mental incompetency and undue influence, and whereas, said appeal is pending in the circuit court for the county of Cass, and whereas, said Ella is the only child of said James Dyer, deceased, and whereas, Phoebe Dyer is the widow of said James Dyer, deceased, and whereas, Arthur G. Dyer and the said Phoebe are sole legatees and devisees under the said will, excepting $25.00 willed to the said Ella; therefore, in consideration that the said appeal be dismissed from the circuit court and the settlement of the estate proceeded with in the probate court,
“We, the undersigned, Phoebe Dyer, widow aforesaid, and the said Arthur G. Dyer, do promise to pay the said Ella Wetherbee the sum of $800.00, according to the terms of a promissory note this day executed by us to her, and also in consideration of the said Phoebe deeding to the said Ella a house and lot in the village of Corey, in said county, valued at $200.00. Also in consideration of the dismissal of said appeal for the purpose aforesaid, I, said Arthur G. Dyer, do hereby promise to give to the- said Ella Wetherbee my individual promissory note for the sum of one hundred dollars ($100.00), payable to her four years after the death of the said PEoebe. Dyer. Upon the execution of this paper, and the execution of the aforesaid promissory note, said appeal is to be dismissed and the settlement of the estate proceeded with according to the rules and practice of the probate court. The provision of this agreement is. hereby made binding upon our and each of our heirs, administrators, executors and assigns.
“In witness whereof, we do hereby set our hands this 21st day of April, A. D. 1897.
[Signed] “Phcebe C. Dyer.
“A. G. Dyer.
“Ella A. V/etherbee.”

(Acknowledged by all the parties April 24, 1897, before Samuel P. King, Notary Public, Cass county.)

Since the making of this contract, plaintiff’s name has been changed by marriage from Ella A. Wetherbee to Ella A. Reese. Arthur G. Dyer is plaintiff’s foster brother, and Phoebe Dyer her mother. By the contract the $800 was payable “according to the terms of a promissory note this day executed by us to, her.” The note was not produced at the trial. According to the testimony and the finding of the trial judge, the note was in fact executed by both Phoebe C. Dyer and Arthur G. Dyer and delivered to plaintiff, who appears to have had it in her possession until about 1900, when she claims she took it to her mother, who was then living on the farm with Arthur G. Dyer, and asked her to put it in the safe there. She took the contract to her lawyer in Three Rivers, Mich. Some years afterwards she asked her mother for the note, but Mrs. Dyer was unable to find it, and Arthur Dyer said he knew nothing about it. They both claimed that the key to a drawer in the safe was lost, and refused to break it open. The declaration alleges that the note was for $8.00, due seven years from date, with interest. Plaintiff’s testimony is to the effect that the note was for $800, drawn up without interest, and that nothing was to be paid on the note for the first six years, and that defendants were to pay $50 a year from that time on until it was all paid. There was-no contradictory testimony, and the trial court so found. The first installment, therefore, under the contract and note, was due April 21, 1903, and the last will not become payable till April 21, 1918.

Plaintiff’s duplicate of the contract, which was offered in evidence, bore three indorsements of payments, the first, April 30, 1903, $300 in land; the second, May 17,1909, $50; and the last, April 12,1915, one gasoline oven, valued at 50 cents. It is admitted that the first credit was given for a piece of land deeded to plaintiff by her mother, and that the indorsement of the $300 on the contract was made with the knowledge and under the direction of Arthur G. Dyer. The second credit was for a payment of $50 in money made by Mrs. Dyer. Arthur Dyer did not know of this payment at the time it was made, but was advised of it afterwards. Plaintiff insists he then told her to indorse it on the contract. He denies this, but says he made no objection when she told him she had indorsed it. As to the last credit item, it appears that plaintiff, after asking Arthur Dyer for a small payment on the contract, either in cash or merchandise, and having been refused, went to her mother, who gave her a gasoline oven. Plaintiff testified that Mrs. Dyer told her she could indorse that on the contract as a payment, and also testified that • Arthur Dyer had told her before she went to her mother:

“Anything you can get out of her I am willing you should indorse on the contract.”

Arthur Dyer at first denied making this statement, but later said he could not remember and would not say positively that he did not. He admitted plaintiff came to him for a payment, and that he told her he could give her nothing.

The case was tried December 9, 1916, without a jury. Three weeks before, the deposition of defendant Phoebe Dyer had been taken at Cassopolis, the county seat, on behalf of the plaintiff, pursuant to a notice which stated as the reason for taking same:

“Because said witness is temporarily in the village of Cassopolis, and there is reasonable cause for apprehension that her testimony cannot be had at the trial of said cause.”

The deposition was allowed to be read in evidence on the trial over the objection of defendants’ counsel, who stated Mrs. Dyer was still in town and no reason appeared why she was unable to. be present in court. Aside from this deposition, the only testimony in the case was that of plaintiff and defendant Arthur G. Dyer. At the close of the testimony the court delivered an oral opinion, which was taken down by the stenographer. He found that the note was signed by both defendants, that its terms were as testified to by plaintiff-, that the payments had been made as indorsed and testified to by plaintiff, and announced that he would render judgment for the balance due up to date of trial, $349.50, leaving two $50 installments yet to mature. Judgment was entered accordingly.

On December 12, 1916, defendants filed exceptions to the findings of fact and law in the oral opinion delivered by the court, and on December 30, 1916, filed a motion for a new trial. Subsequently the court filed an opinion denying the motion for new trial, to which defendants filed exceptions.

The points relied upon for reversal, as stated by counsel for appellants in their brief, are as follows:

(1) Failure to file indemnifying bond.

(2) Error in admission of Phoebe C. Dyer’s deposition.

(3) That the note was outlawed as to both defendants.

(4) That the note was outlawed as to Arthur G. Dyer.

(5) Fatal variance between the declaration and the evidence.

The declaration upon which plaintiff bases her right of action alleges that the note was payable to her, and the contract introduced in evidence also states that the promise to pay was made to Ella A. Wetherbee, according to the terms of a promissory note. There is no testimony in the record to show that the note was other than alleged in the declaration, which allegation, if true, would make it a nonnegotiable instrument. Before an indemnifying bond is required under section 12544, 3 Comp. Laws 1915, it must appear that the note was negotiable, because by virtue of section 12543 the filing of a bond for indemnity, where a suit is brought upon a lost note, is confined in its operation to negotiable instruments. See Coon v. Bouchard, 74 Mich. 486 (42 N. W. 72). It not having been made to affirmatively appear that the note is negotiable, the point that the bond was not filed is not in our opinion well taken. See 25 Cyc. p. 1616.

Section 15 of chapter 18 of the judicature act (Act No. 314, Public Acts of 1915, 3 Comp. Laws 1915, § 12587) provides, with reference to the findings of fact and the conclusions of law upon the trial by the court of any question of fact or law, as follows:

“In such cases, either party may file exceptions to the findings of facts, that such findings are against the clear weight of evidence, and may assign error upon such exceptions, and if an appeal be taken, the same shall be reviewed by the Supreme Court.”

No exception was filed by the appellants in this case alleging that the findings of the court were against the clear weight of the evidence, and no error was assigned upon any such exception. Because of the failure to file such exception and to assign error, we will not weigh the evidence taken before the court, and if there is any evidence to sustain the findings of the court, it must be held that such findings are conclusive, under the repeated decisions of this court. As appears from the statement of facts herein set forth, the testimony of the plaintiff herself and the written evidence in our opinion is sufficient proof to support the findings of the court that the claim had not outlawed against these defendants, even if the deposition of Phoebe C. Dyer is not considered. The court found, and there were proofs to sustain his findings, that the note, which was dated April 21,1897, was drawn without interest, and no payments were due thereon until the end of six years, and that thereafter the defendants were to pay $50 a year until it was fully paid. The proofs further show that in 1903, $300 was paid on the note, which, applied upon the payments as they matured, resulted in there being no payment due until 1909. The proofs further show that in 1909 a $50 payment was made, so that under the proofs no payment was due until 1910 and the years thereafter. Under these facts as found, the statute of limitations did not enter into the case, because the suit was commenced within the statutory period after the first unpaid installment on the note fell due. We must refuse to weigh the evidence, and it is therefore immaterial whether the deposition in question was admitted.

With reference to the claim of variance between the declaration and the evidence as to the terms of the note, it appears that the attention of the court was not called to this alleged variance in any manner during the trial or after the trial. It' was not a reason given or assigned in the motion for a new trial, and we are of the opinion that the point' should not be. raised at this time, because if the objection had been timely made, an amendment of the declaration might have been permitted.

The judgment should be, and is hereby, affirmed.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


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    PLANKINTON PACKING CO. v. BERRY.
    1. Evidence — Admissibility—Carbon Copies op Letters.
    ■ Carbon copies of letters are inadmissible, because not best evidence, where no showing is made of demand upon the adverse party to produce the originals.
    2. Appeal and Error — Weight op Evidence — Review—Statutes.
    Where proper exceptions are taken to written findings of fact by a trial judge on the ground that they are against the clear weight of the evidence, in accordance with the provisions of the judicature act, Act No. 314, Pub. Acts 1915, chap. 18, § 15 (3 Comp. Laws 1915, § 12857), and error assigned thereon, such findings will be reviewed by the Supreme Court.
    3. Principal and Agent — Authority of Agent — Estoppel.
    A mother who issues blank checks to her son, who: is running a meat market, for a period of several months, receives letters from the meat packers, knows that the checks were to be used and were actually used in the business of the meat market, fails to examine the letters or paid and canceled checks as returned to her by the bank, is estopped to deny the authority of the son to act as her agent and to make purchases on her credit.
    Error to Emmet; Shepherd, J.
    Submitted October 23, 1917.
    (Docket No. 116.)
    Decided December 27, 1917.
    Assumpsit in justice’s court by the Plankinton Packing Company against Alice Berry for goods sold and delivered. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Mesick & Miller, for appellant.

      Wade B. Smith, for appellee.
    It is sought to recover the price of two shipments of meat, consigned by plaintiff to defendant upon the order of one Roy Berry. The goods were invoiced at .$193.13.
    Plaintiff is a corporation, conducting a wholesale meat business at Milwaukee, Wis. In May, 1914, defendant’s son, Roy Berry, bought out a retail meat business in Petoskey, which he conducted from that time until early in October of the same year, when he failed. About the time the market was opened, the defendant, Alice Berry, a resident of Petoskey, gave h<A son $200 to put into the business. He was then about 31 years of age, and was not residing with his mother, but was married and maintaining a home Qf his own. Upon receiving the $200, he at once opened a checking account with a local bank under the designation of “Alice Berry, Shop Account.” Defendant did not know of this arrangement in advance; but, immediately after opening the account, Roy told her what he had done, and explained that it would be necessary for her to sign the checks. To her inquiry why he had put the account in her name, he merely replied: “Well, it’s all right; you can check it out.” And she let it stand that way without protest. Within a few days defendant began to receive letters bearing the return card of various wholesale méat firms. She testified that she did not open these letters, but sent fdr her son and asked for an explanation, saying it did not look right for letters to come in her name from meat firms, and that he replied:
    “That is all right. Don’t worry about that at all. That money was in your name and you have to sign those checks. Now that is all there is to it. There is nothing out of the way with it.”
    She claims that nothing further was said about the matter, and that she continued to turn over to him all letters from meat firms that came' addressed to her, without opening them and without further inquiry. The checks on the bank account were, according to defendant’s testimony, signed by her in blank and delivered to her son. She claims she did not know the amounts of the checks, nor to whom they were to be made payable. She admits that the canceled checks were returned to her by the bank, but states that she burned them without examining them to see how they had been filled out.
    Plaintiff’s salesman, William Schroeder, called at the meat market every week and took orders for meat, and the goods ordered through him were shipped by plaintiff, consigned find invoiced to Alice Berry, and were obtained from the carriers by Roy Berry. Mr. Schroeder collected each week from Roy Berry the amount due for goods received by him the preceding week, as per terms of the orders, and the payments were made by checks signed “Alice Berry, Shop Account,” and delivered to Schroeder by Roy Berry. Mr. Schroeder testified tliat occasionally the check was not ready when he came, and that he .would wait while Roy went over to his mother’s to get a check signed. Defendant claims she had no knowledge that any goods were being purchased in her name or upon her credit, nor that Roy Berry was dealing with plaintiff.
    Before the account was opened with Mrs. Berry, plaintiff, through its credit manager, made the usual investigations as to the identity and responsibility of defendant, and upon the basis of the information obtained extended credit to her, and to her alone. Neither prior to nor during the continuance of these dealings did plaintiff ever inquire of defendant herself as to the authority of Roy Berry to order goods shipped in her name and upon her credit. Mr. Schroeder testified he never saw Mrs. Berry nor had any conversation, writing, or correspondence with her, though she continued to reside in Petoskey during the entire period of these transactions. All goods ordered by Eoy Berry of plaintiff were paid for, except those which came in the two shipments in question, which, together, represent the last order Berry gave. When Schroeder arrived in .Petoskey the week after this order was given, he found that'Berry had failed and that the market was closed. This was in the early part of October, 1914. He saw Berry, however, and asked him on several occasions to pay for these goods, arid Berry said that he would take care of it.
    Suit was brought by plaintiff against Alice Berry before a justice of the peace, who rendered judgment in favor of defendant, and upon appeal the trial in the circuit court, without a jury, resulted in a like judgment.
   Kuhn, C. J.

(after stating the facts). The appellant raises questions concerning the ruling of the court as to the admissibility of certain evidence. A part of the testimony in support of plaintiff’s case was taken by deposition, and it was sought to introduce in evidence two carbon copies of letters purporting to have been written by the plaintiff to the defendant asking for payment. The court properly refused to receive these two exhibits for the reason that they were not the best evidence) no showing having been made of any demand upon the defendant to produce the originals.

Question is also raised concerning the refusal on the part of the court to admit plaintiff’s Exhibit D, which was a letter written by the plaintiff’s agent to his concern asking them to get a commercial report on Mrs. Berry and advising them that she was about to start in business. It is claimed that this exhibit should have been admitted for the purpose of showing to whom the plaintiff extended credit. We do not think it necessary to consider this question, because, under the undisputed proofs, the credit was extended by the plaintiff to the defendant.

This case was tried before the court, and the learned trial judge at the conclusion of the hearing made written findings of fact and of his conclusions of law. To these findings counsel for the plaintiff took exception that they were against the clear weight of the evidence, in accordance with the provisions of section 15, chap. 18, Act No. 314, Pub. Acts 1915 (judicature act, 3 Comp. Laws 1915, § 12587). In accordance with the provisions of that act, proper exceptions having been taken and error assigned thereon, we will review these findings.

The judge made the following finding:

“There is no evidence in this case of anything said or done by defendant, with knowledge on her part that plaintiff might be led to rely thereon, tending to show that Roy Berry had authority to buy any goods in her name or upon her credit.”

With this conclusion we cannot agree, because we are of the opinion that this record discloses that the defendant, by her course of conduct, permitted it to appear that her son was her agent for the purpose of conducting this business, and, because of her conduct in relation thereto, she is estopped to deny such agency to the injury of the plaintiff, who in good faith and, as we believe, in the exercise of reasonable prudence, dealt with the agent on the faith of such appearances. The issuing by her of the blank checks over a period of several months, the receipt of letters from the meat packers, the knowledge that the checks were to be used, and were used, in the business of the meat market, and the failure of the defendant to examine the letters or the paid and canceled checks as returned to her by the bank, was such a course of conduct on her part, in our opinion, as to force the legal conclusion that her authority to her son to act for her as agent would be conclusively presumed so far as it may be necessary to protect the rights of the plaintiff, who relied thereon in good faith and in the exercise of reasonable prudence.

The general rule is thus stated by Mr. Mechem, in his work on Agency, Vol. 1 (2d Ed.), § 246, in discussing this question, where it is said:

“Gathering together all of these elements, it may be stated as a general rule that whenever a person has held out another as his agent authorized to act for him in a given capacity, or has knowingly and without dissent permitted such other to act as his agent in that capacity, or where his habits and course of dealing have been such as to reasonably warrant the presumption that such other was his agent authorized to act in that capacity — whether it be in a single transaction or in a series of transactions — his authority to such other to so act for him in that capacity will be conclusively presumed to have been given, so far as it may be necessary to protect the rights of third persons who have relied thereon in good faith and in the exercise of reasonable prudence; and he will not be permitted to deny that such other was his agent authorized to do the act he assumed to do, provided that such act was within the real or apparent scope of the presumed authority.”

The principle here involved was recognized by this court in the recent case of Pettinger v. Alpena Cedar Co., 175 Mich. 162 (141 N. W. 535), in which opinion the case of Clark v. Dillman, 108 Mich. 625 (66 N. W. 570), is referred to. See, also, the earlier case of Heyn v. O’Hagen, 60 Mich. 150 (26 N. W. 861).

Upon this record the circuit judge should have entered a judgment for the plaintiff for the amount of its claim. The case will be reversed, and a new trial granted, with costs to the appellant.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


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    JOHNSON v. MARY CHARLOTTE MINING CO.
    Master and Servant — Workmen’s Compensation Act — “Accident” — “Disease”—Proximate Cause — Evidence..
    The proximate cause of the death of a laborer who was employed at unloading a car of ties on a coal trestle, and, after removing some ties which had lodged on the running board of the trestle, slipped and fell while climbing back on the car, and was found dead on the coal pile a few feet under the trestle with superficial scratches and bruises on his face, was not due to his work, where such work was his usual work, and he had previously been afflicted with heart disease and an examination disclosed that he died of such disease and his condition was such that he might have died while lying quiet.

    Certiorari to Industrial Accident Board.
    Submitted October 16, 1917.
    (Docket No. 139.)
    Decided December 27, 1917.
    Annie Johnson presented her claim for compensation against the Mary Charlotte Mining Company for the accidental death of her husband jn defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed.

      M. J. Kennedy, for appellant.

      T. A. Thoren, for appellee.
    The husband of the claimant, Carl O. Johnson, met his death March 30, 1916, at the mine of the respondent, where he had been employed as a surface laborer. The deceased was 57 years of age, and for a considerable period of time> beginning in the early spring of 1915 and until the latter part of August of that year, was confined to his home, and a part of that time to his bed, suffering from organic heart trouble; his condition being described as a leakage of the valves of the heart. On the day of his death, and on the preceding day, he was at work unloading a car of ties on a coal trestle. The trestle, at the point where the car stood upon it, was about 10 feet from the ground. Beneath the trestle there was some coal, which had been piled up so that the platform of the car was about 8 or 9 feet from the top of the coal pile. On the top of the trestle a platform or running board was built, and it was about 4 feet from this running board to the platform of the car. Johnson and another employee were engaged in unloading ties, weighing from 75 to 80 pounds, from the car. It appears that some of the ties which had been.thrown off the car had lodged on the running board, and Johnson climbed down from the car to the running board and threw a number of the ties from the running board onto the pile below. After he had completed this work, he turned to climb back onto the car. As he was in the act of going up, he was seen to slip and fall, and was found on the coal pile about 31/2 to 4 feet below the track. There were bruises over his eye and on the side of his cheek. There is some dispute in the testimony as to where Johnson was found after the accident, the testimony introduced by the appellant tending to show that Johnson sank down on the running board, while the testimony of the appellee’s witnesses shows that Johnson was found on the coal below between the stringers supporting the trestle.
    Two physicians were sworn as to the cause of the death, and both testified that the deceased died because of heart failure. An award was made by the industrial accident board, and the cause is brought here by certiorari to review the action of the board.

      On construction, and effect of workmen’s compensation acts, generally, see comprehensive note in L. R. A. 1916A, 23, L. R. A. 1917D, 80.

   Kuhn, C. J.

{after stating the facts). It is the: contention of claimant’s counsel that the work the decedent was doing at the time that he met his death, was hard and laborious, and that it would be impossible to say that this hard work, done just prior to his. death, was not the proximate cause thereof. The testimony of the physicians showed that in the condition that the decedent was in, death might have come to him while lying quiet, even while taking a breath. We are not satisfied that this record discloses, or that-there is any evidence to warrant the claim, that any accident occurred or that anything unforeseen or unexpected happened in the performance of his work at the time in quéstion. The deceased was doing the work which he had been engaged to do, in the usual way. The evidence is conclusive that when stricken with heart failure, he collapsed and sank, or fell, and sustained superficial scratches or bruises on his face, which are not claimed to have contributed in any way to his death. The case of Schroetke v. Jackson-Church Co., 193 Mich. 616 (160 N. W. 383, L. R. A. 1917D, 64), is relied upon by the claimant. We are, however, of the opinion that that case is distinguishable from the situation now before us, as it was made clearly to appear that there was in that case an unexpected and fortuitous event, viz., the fire which the deceased attempted to extinguish, and as a result of his efforts to that end and to give an alarm, and of the attendant excitement, he died of heart failure. In that case the court said:

“In the instant case the whole circumstance, including the fire, the overexertion and the excitement of the deceased, may be said to have been an accident. It was certainly a fortuitous circumstance.”

The case of Kutschmar v. Briggs Manufacturing Co., 197 Mich. 146 (163 N. W. 933), is more similar to the case before us. There the employee as in the case at bar, was engaged at the moment of his injury in his usual and ordinary employment and in the usual and ordinary way.

It not having been made to appear that at the time claimant’s decedent met his death any fortuitous or unusual circumstance occurred, it follows that there is no evidence of an accident, and that the board erred in so holding and in awarding compensation, which can be only awarded for accidental injury by the terms of the act. Stombaugh v. Wire Fence Co., 198 Mich. 445 (164 N. W. 537); Van Gorder v. Motorcar Co., 195 Mich. 588 (162 N. W. 107).

The judgment is reversed.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


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    JOHNSON v. HARRISON.
    1. Bankruptcy — Preferential Payments — Recovery by Trustee —Conspiracy—Fraud—Accounting.
    A trustee in bankruptcy of a corporation may maintain a bill in equity to reach property fraudulently conveyed and for an accounting, because of the absence of an adequate remedy at law, where officers and directors of the bankrupt have fraudulently conspired with a bank to have notes due the bank of which they were accommodation makers, sureties or indorsers, canceled and paid in preference to the claim of other creditors, since there could be a recovery of only a sum sufficient to satisfy the claim, and in equity alone such an amount can be reached and marshaled in liquidation of claims.

      2. Equity — Pleading—Multifariousness.
    A bill by a trustee in bankruptcy of a corporation against tbe officers and directors of the bankrupt and a creditor to reach property fraudulently conveyed under a conspir- , acy with the creditor, to have notes of the bank due the creditor on which such officers were accommodation makers, sureties or indorsers, canceled and paid in preference to the claims of other creditors, was not multifarious, where the grounds of liability all reached the same subject-matter, and were in no way distinct from each other, and the defendants were all connected in interest and liable in the one subject.
    Appeal from Grátiot; Searl, J.
    Submitted October 11, 1917.
    (Docket No. 86.)
    Decided December 27, 1917.
    Bill by D. Lloyd Johnson, trustee in bankruptcy of the St. Louis Chemical Company, against David E. Harrison and others to recover preferential payments. From an order denying a motion to dismiss, defendants appeal.
    Affirmed.

      William A. Bahlke (Edwin H. Lyon, of counsel), for plaintiff. ,

      George P. Stone and L. C. Palmer (George E. Nichols and Romaine Clark, of counsel), for defendants.
   Kuhn, C. J.

This is an appeal from an order overruling the demurrers filed by the defendants and denying the subsequent motion to dismiss the bill covering the same ground, but entered by reason of. the judicature act (Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 12004 et seq.).

A bill of complaint was filed to recover preferential ■payments made to the defendants, by the St. Louis Chemical Company, an adjudged bankrupt under the general bankruptcy act, to reach property fraudulently conveyed by the bankrupt to. the defendants, and for an accounting and other relief. It is charged that the defendants, as officers and directors of the bankrupt, and their agents, fraudulently and dishonestly conspired and confederated together to prefer themselves as creditors of the bankrupt at a time within the four-month period, and while the bankrupt was insolvent within the provisions of the bankruptcy act of 1898 and the amendments thereto (U. S. Comp. Stat. 1916, §§ 9585-9656), and that it was intended by the said payments to give unlawful preferential payments to said directors and officers of the bankrupt within the meaning of the act relating to bankruptcy through the cancellation of the notes of the bankrupt set forth in the bill, on which the said defendants were accommodation makers, sureties, or indorsers. It is also alleged that other property was in like manner transferred and appropriated, and that all of said transfers of property and payments were unlawful and in fraud •of all other creditors of the bankrupt within the meaning of the act of congress relating to bankruptcy. It is also charged that the defendants combined and confederated together to assis.t said bankrupt to transfer and conceal its property in payment of the indebtedness owing by the bankrupt to said defendants, and that the Gratiot County State Bank, with full knowledge and notice of such purpose, received and acted as .depository of such money of said bankrupt with the intent and purpose on its part to pay itself on notes of the bankrupt held by it and assist and enable said bankrupt and the said defendants, officers and directors thereof, to carry out and execute its fraudulent scheme and purpose in preferring themselves and said bank as creditors, in fraud of the unsecured creditors of the bankrupt, and in violation _ of the terms and provisions of the general bankruptcy law. The total amount of claims that have been proven against the bankrupt amount to $15,486.13, and the total amount of money charged and itemized as having been appropriated to preferential payments through the conspiracy is $19,032.18. The prayer for relief is that the defendants may answer under oath, for discovery, for an accounting, and for such other relief as equity may require.

Counsel for appellants narrows the issue in his reply brief by the following statement’:

“I agree with counsel that his statement is correct, where he says:
“ ‘The important question before the court is simply this: Does the bill of complaint set forth or charge a liability on the part of the defendants for which the plaintiff is entitled to recover? If so, can the recovery be had in equity?’
“As to the first question, I am willing to admit that if such conspiracy as set forth was entered into, and the money of the bankrupt was thus used in making preferential payments, that a right of action exists under the statements in the bill, not by reason of the bankruptcy law or section 60 b,. but by reason of the conspiracy that, assuming the allegations of the bill to be true, that the plaintiff, as trustee of the creditors of the chemical company of the money so dissipated amounting to $19,032.18. On the other hand, in answering the second question, I submit that equity under the facts alleged in this bill has no jurisdiction and that the plaintiff has a full, complete and adequate remedy at law. So that the -issue in this case gets back to the one and sole proposition: Is the chancery side of the court the proper forum for the adjudication of the questions of fact alleged in the bill upon which the plaintiff bases his right 'of recovery?”

The case of Detroit Trust Co. v. National Bank, 155 Mich. 65 (118 N. W. 729), is relied upon in support of the contention that the plaintiff has a full, complete, and adequate remedy at law. This court there said:

“In this State equity has not taken jurisdiction of cases where a suitor has a full, complete, and adequate remedy at law, unless it is shown that there is some feature of the case peculiarly within the province of a court of equity.”

The question then is: Does this case, as made by the bill, show a situation which brings it peculiarly within the jurisdiction of equity? The solution of this question is not without difficulty, and it must be said that the case is brought close to the border line by the rulings of this court in the cases of Laubengayer v. Rohde, 167 Mich. 605 (133 N. W. 535); Excelsior Wrapper Co. v. Yund, 176 Mich. 372 (142 N. W. 353, 47 L. R. A. [N. S.] 179, Am. & Eng. Ann. Cas. 1915B, 594); Berger v. Roe, 179 Mich. 184 (146 N. W. 200); Reis v. Applebaum, 182 Mich. 582 (148 N. W. 696); Lannin v. Lynn, 184 Mich. 325 (151 N. W. 645). The feature which is appealing to us, and which in our opinion brings it within equitable jurisdiction, is the fact that the plaintiff is entitled to no more from these defendants than is sufficient to satisfy the claim, and that in equity alone such an amount can be reached and marshaled in liquidation of the claims. In effect, by this equitable proceeding the plaintiff is seeking to treat all the defendants fairly and to equitably distribute the liability among them, if the allegations of the bill are sustained by the proofs. In our opinion, an action at law cannot fairly adjust these equities and claims, and it therefore does not afford a full, complete, and adequate remedy between the parties.

We do not think that the bill is multifarious, as the grounds of liability all reach the same subject-matter and are in no way distinct from each other, the defendants are all connected in interest and liable in the one subject. A somewhat similar case arose in West Virginia (Arnold v. Knapp, 75 W. Va. 804 [84 S. E. 895]), where the court had before it the question of equity júrisdiction, and also multifariousness. It was there said:

“Besides, substitution and subrogation sought by the bill are the peculiar subjects of equity cognizance. Neff v. Baker, 82 Va. 401 [4 S. E. 620]; Haffey’s Heirs v. Birchetts, 11 Leigh [Va.], 83; McNeil v. Miller, 29 W. Va. 480 [2 S. E. 335]; Blair v. Mounts, 41 W. Va. 706 [24 S. E. 620]; Simmons v. Lyle’s Adm’r, 32 Grat. [Va.] 752. These features of the bill distinguish it from Maxwell v. Davis Trust Co., 69 W. Va. 276 [71 S. E. 270], relied on. That case simply holds there is no jurisdiction in equity at the suit of a trustee in bankruptcy against a creditor to recover preferential payments made in violation of the national- act of bankruptcy, with no ground of equitable jurisdiction alleged. If right of substitution or subrogation or‘other grounds exist in allegation and proof of course equity would have jurisdiction to convene the several lienors and enforce the lien to which plaintiff is entitled to be subrogated.
“But is the bill bad for multifariousness? We do not think it is. The statement of its objects and purposes shows that while the claim of plaintiff against Knapp is made up of several demands, some for subrogation, others not, all are recoverable for the creditors of the bankruptcy estate, and chargeable against his interest in the land in which the money paid him was invested, and that the interests of all defendants are so involved in the relief sought against him as to render it improper to proceed in their absence. To render a bill multifarious the different grounds of the suit must be wholly distinct from each other, and each ground stated in the bill must be sufficient in itself as a subject of equity jurisdiction. Hogg’s Eq. Proc. §§ 136a and 1365. And as said by Mr. Hogg in this connection: ‘The objection of multifariousness in a bill may be disregarded except in plain cases, whereby the administration of justice will be furthered and multiplicity of suits avoided.’ Id. § 136; Johnson v. Sanger, 49 W. Va. 405 [38 S. E. 645]. A good illustration of bills properly regarded multifarious is found in Turk v. Hevener, 49 W. Va. 204 [38 S. E. 476]. In the case here there is no such uniting of several and distinct matters distinct in their nature, against several defendants, unconnected in interest and liability, as to properly stamp the bill multifarious, as in Crickard v. Crouch, 41 W. Va. 503 [23 S. E. 727]; Moore v. McNutt, 41 W. Va. 695 [24 S. E. 682]; Day v. Building & Loan Ass’n, 53 W. Va. 550 [44 S. E. 779], and other cases cited and relied on by appellants. We think those cases inapplicable, and overrule the point.”

We áre of the opinion that the trial judge acted properly in overruling the motion to dismiss, and his order to that effect is affirmed, with costs to the plaintiff.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


author: Per Curiam.

text:
    BARNARD v. JUDGE OF SUPERIOR COURT OF GRAND RAPIDS.
    Indictment and Information — Motion' to Quash — Scope of Inquiry.
    A motion may be made in the trial court, before the jury is sworn, to dismiss criminal proceedings originating before a police magistrate on the ground that the preliminary examination fails to show that a crime has been committed or that there is probable cause to believe that the respondent is guilty, and upon such a motion the court will consider the evidence adduced before the magistrate and pass upon the propriety of his determination.
    Mandamus by Edward N. Barnard, prosecuting attorney of Kent county, to compel Major L. Dunham, judge of the superior court of Grand Rapids, to vacate an order dismissing certain criminal proceedings.
    Submitted June 12, 1917.
    (Calendar No. 27,704.)
    Writ denied December 27, 1917.

      Edward N. Barnard and Cornelius Hoffius, Prosecuting Attorneys, and William K. Clute and Fred P. Geib, Assistant Prosecuting Attorneys, for plaintiff.

      Myron H. Walker (Butterfield & Keeney, of counsel), for defendant.
   Per Curiam.

Mandamus is sought to compel the judge of the superior court of the city of Grand Rapids to vacate an order heretofore entered dismissing criminal proceedings instituted by the people against Frederick L. Perkins on the charge of perjury.

From the petition herein filed it appears that on September 24, 1915, complaint was made against Frederick L. Perkins, charging him with the crime of perjury, and a warrant was issued thereon. Upon arraignment the defendant demanded an examination, which subsequently took place. Upon such examination, the complaining witness and other witnesses were called and gave evidence which it is claimed sustained the charges of the complaint and warrant, and a large amount of record, documentary, and other written evidence was produced and introduced, the police judge before whom the examination took place certified that the crime of perjury had been committed, and that there was reasonable cause to believe that the defendant, Frederick L. Perkins, was guilty thereof, and bound him over to the superior court of that city for trial. On the same day an information was filed against Frederick L. Perkins by the prosecuting attorney of Kent county, charging him with the crime of perjury, and thereafter, on January 29, 1916, defendant moved to dismiss the proceedings for the following reasons:

“First. Because it does not appear from the examination in this cause that any such crime was committed as that charged in the complaint.
“Second. Because it does not appear from the evidence adduced on the examination of respondent before the magistrate that there is probable cause to believe the respondent guilty of the crime of perjury as charged in said complaint.
“Third. Because from the evidence adduced on examination before the magistrate, it does appear that there is no probable cause to believe the respondent guilty of the crime committed as charged in the complaint.
“Fourth. Because there is no just foundation for the prosecution of this cause, and the further prosecution thereof is not consistent with the ends of justice.”

Upon the hearing of this motion, Judge Dunham, of the superior court, found the grounds of said motion to be well taken, and made the order that is now attacked, granting the motion to dismiss and discharging the defendant, the court having come to the conclusion that the evidence taken on the examination does not disclose that the offense of perjury was committed, and does not show, or tend to show, that there was probable cause to believe that the respondent was guilty as charged. No further steps were taken by the people until nine months later, when the present petition for writ of mandamus was filed.

The first contention of counsel for the petitioner which demands consideration is that the act of the police magistrate in finding that there is probable cause to believe that the respondent has committed a crime as charged will not be reviewed by the superior court on the motion to dismiss or quash the information; in other words, it is claimed that the action of the magistrate upon this question is final and cannot be reviewed. Authorities are cited in the brief to sustain this contention, and it is argued that this is the rule established by the Michigan cases. We think it is unnecessary to discuss in detail the Michigan cases to which counsel refer, as we are convinced that an examination of the Michigan authorities will justify the conclusion that a motion to quash the complaint or dismiss the cause, because the examination fails to show that a crime has been committed or that there is probable cause to believe that the respondent, is guilty, is properly made, and is timely if submitted before the jury is sworn in the trial court, and that upon such a motion the court will consider the evidence adduced before the magistrate and pass upon the propriety of his determination. We have held, however, that it comes too late if interposed after the plea and when respondent has already been placed in jeopardy. See People v. Brott, 163 Mich. 150 (178 N. W. 236); People v. Davis, 171 Mich. 241 (137 N. W. 61). In the late case of People v. Auerbach, 176 Mich. 23 (141 N. W. 869, Am. & Eng. Ann. Cas. 1915B, 557), a motion was made to quash the information for reasons analogous to those here assigned. This court in that case disposed of the motion on its merits, and Mr. Justice Stone, speaking for the court, said:

“We have examined the record relating to the examination before the magistrate, and aré unable to agree with respondent’s counsel that, as a matter of law, we should say there was not sufficient evidence to hold the respondent for trial. Thé evidence before the magistrate was substantially the same as upon the trial. The circumstances surrounding the case, in the very nature of things, were themselves peculiar and unusual. Circumstances testified to by witnesses as to subsequent conversation and conduct of the respondent, some of which, it was claimed, showed evidence of a desire to keep the matter of the death of Fisher secret and to avoid publicity, the evidence of the experiments, all of these facts taken together, we think, justified the magistrate in holding the respondent for trial; and we do not think that the court erred in overruling the motion to quash the information.”

In People v. Davis, supra, the point decided is stated in the headnote thus:

“After a jury had been sworn in a criminal action for keeping open respondent’s saloon on Sunday, it was too late to raise the objection that the prosecution had offered no evidence before the examining justice to show that defendant was a saloon keeper, or had filed the statutory bond, or had secured a liquor dealer’s license.
“The question should have been raised by motion to quash before the accused had been placed in jeopardy.”

In this opinion the language of Justice Hooker in People v. Brott, supra, is quoted:

“The motion to quash for want of testimony before the justice on the examination was properly overruled. Upon that question also the magistrate was permitted to act without his attention being called to this claim, which was first raised at circuit after the jury was sworn, and when a discharge on a technical point might be final, by reason of defendant’s having been in jeopardy.” :

Our attention has been called to no Michigan case, nor have we been able to find one, which questions the propriety of such practice, and we are of the opinion that it was the duty of the judge of the superior court to pass upon the questions raised by the motion to dismiss.

The perjury is alleged to have been committed on January 10, 1910, when Frederick L. Perkins was testifying as a witness in the chancery case of Frederick L. Perkins, Executor, v. Willis J. Perkins et al., then being heard before Hon. Main J. Connine, circuit judge, in the circuit court for the county of Kent. The charges of perjury are eight in number, and they are grouped for purposes of argument in the brief of respondent into two classes: (1) The first four charges relate to testimony respecting the knowledge of Fred of the financial condition of his brother Willis; (2) The remaining charges relate to the keeping of a private ledger and the balancing figure to be obtained therefrom.

This prosecution was instigated and the complaint made by Willis J. Perkins, a brother of the respondent. Several phases of this unfortunate litigation have reached this court, and are found reported in Perkins v. Perkins, 173 Mich. 690 (140 N. W. 161), and Perkins v. Perkins, 181 Mich. 166 (147 N. W. 555).

The learned judge of the superior court has filed a lengthy opinion, in which he carefully reviewed the various charges of perjury, and in his conclusion says:

“In my judgment, the evidence in police court does not show the offense of perjury committed, and that, taking the entire testimony upon that examination altogether, it is insufficient upon which to base an information in this court against the respondent.
“Upon this motion it is my duty to determine as a matter of law from the whole evidence produced upon that examination whether the facts evidence the commission of a crime and the evidence upon that examination does not disclose that any crime was committed. This being so, the act of the judge of the police court, in my judgment, in determining that the offense charged in the complaint had been committed and that there was probable cause to believe the respondent guilty thereof, was wholly without jurisdiction.
“It is to be regretted that this action was brought at all, and still more to be regretted that respondent was bound over to this court upon that testimony. From the testimony of the complaining witness it is clearly evident that he was actuated by a most strong prejudice against his brother, the respondent, and this is evidenced by the testimony of Willis J. Perkins upon that examination” (quoting from testimony).

It would not serve any good purpose to attempt in this opinion to review the testimony, and for the purpose of this decision it is sufficient to say that we have carefully examined the testimony relied upon by the prosecution to sustain their claims that there was sufficient evidence to warrant the action of the examining magistrate, and we are of the opinion that the action of the judge of the superior court was fully warranted in holding that there was no evidence tending to show that the crime of perjury had been committed or that there was probable cause to believe the respondent guilty thereof.

The judge of the superior court acted properly in granting the motion to dismiss upon this record, and the application for writ of mandamus is denied.


text:
    RILEY v. MASON MOTOR CO.
    1. Master and Servant — Workmen’s Compensation Act — Findings of Industrial Accident Board — Evidence—Sufficiency.
    If there is any evidence to support findings of the industrial accident board, the Supreme Court will not undertake to weigh the evidence, or disturb the findings, even though it might have reached a different conclusion on the facts.
    2. Same.
    In proceedings for ©ompensation under the workmen’s compensation act, evidence held, to tend to support a finding that a foreign substance, which got into claimant’s eye, caused its loss.
    3. Same — Wilful Misconduct of Employee — Evidence — Sufficiency.
    Evidence held, sufficient to sustain a finding of the industrial accident board that claimant was not guilty of wilful and unreasonable conduct in refusing to have his eye treated in accordance with the wishes of his physicians.
    4. Same — Workmen’s Compensation Act — Basis of Award.
    Under the workmen’s compensation act (Act No. 10, Extra Session 1912), part 2, § 11 (2 Comp. Laws 1915, § 5441), providing that if an injured employee has not worked in his employment during substantially the whole of the preceding year, his average annual earnings shall consist of 300 times the average daily wage of an employee of the same class working substantially the whole of the immediately preceding year in the same or a similar employment shall have earned in such employment during the days when so employed, the annual earnings of an employee are to be computed by taking 300 times the average wage or salary which the employee has earned in his employment during the days employed.

    Certiorari to Industrial Accident Board.
    Submitted October 18, 1917.
    (Docket No. 123.)
    Decided December 27, 1917.
    William Riley presented his claim for compensation against the Mason Motor Company fop injuries received in defendant’s employ. From an order awarding compensation, defendant and the Zurich General Accident & Liability Insurance Company, insurer, bring certiorari.
    Affirmed.

      Kerr & Lacey, for appellants.

      James S. Parker (C. W. Wilber, of counsel), for appellee.

      On construction and effect of workmen’s compensation acts, generally, see comprehensive note in L. R. A. 1916A, 23, L. R. A. 1917D, 80.

   Kuhn, C. J.

Certiorari to the industrial accident board. The claims of the applicant which find support in the testimony taken before the committee on arbitration are thus stated by the board in their findings:

“It is not denied'but that the applicant, on or about the 20th day of September, 1916, got a foreign substance into his eye while working in the plant of the respondent employer, and he testified that this sub-. stance was from an emery wheel, and that he got it into his right eye.. He claims that he went to Dr. Childs, the physician of the respondent employer, but that the doctor could not find the foreign substance. He testified that the doctor put medicine into his eye which caused him great pain, and put bandages over his eye, and told him to leave the bandages there until the next day. The next day the applicant went to Dr. Orr, who, either on that day or some other day, advised the applicant to go to a hospital, but he claims that he had no means with which to go to a hospital, and that in any event there was no room at the hospital to which the doctor telephoned. The applicant was about 77 years of age, and testified that he had good eyesight prior to the accident. It seems that Dr. Orr refused to treat him unless he would go to a hospital. The applicant claims that Dr. Orr removed the foreign substance from the eye instead of Dr. Childs. Dr. Childs’ testimony is to the effect that he removed it. The applicant testified that Dr. Orr put medicine in his eye which caused him great pain.
“The applicant also went to Dr. Bird, who advised him to have the eye taken out, and then he went to Dr. Conover. Four physicians had more or less to do with this man’s eye at the time it was hurt, but, notwithstanding that fact, he lost the eye.
“The respondents^ claim that the applicant put a potato poultice on his eye while it was sore, and that he should not have done so, and that said potato poultice may have cost the man his eye. There is some conflict in the testimony as to whether or not a potato poultice was used. He and his daughter claim none was used. One or two other witnesses claim that he once told them that he used a potato poultice.”

The committee on arbitration refused the applicant compensation, which findings and award were reversed by the industrial accident board.

The first claim made by the respondent is that the injury which it is conceded the applicant sustained in no way contributed to the loss of the eye. The industrial accident board determined against this contention of the appellant, and that the loss of the eye was attributable to the accident complained of, and the question for us to determine is whether there is any evidence to support this finding, as we will not undertake to weigh the evidence or disturb the findings, even though we might have reached a different conclusion on the facts.

It is the claim of the applicant that the original injury caused the development of a corneal ulcer, and, as a result thereof, the applicant lost his eye. As to whether or not the corneal ulcer would result as it did in the case of applicant is a question upon which the medical witnesses sworn differ. The board based its conclusion upon the testimony of Dr. T. S. Conover, and their finding with reference thereto is thus stated by them:

“Dr. T. S. Conover was sworn and testified that at a date which he could not give the applicant came into his office suffering with a corneal ulcer of the right eye; that the man was then blind, and permanently blind; that the cause was an infection; and that it might result from getting emery dust into the eye and from the inflammation attendant upon it. This doctor testified that a corneal ulcer depends upon the abrasion of the corneal surface, and that it was usually secondary to an injury, and that the infection must gain entrance to the cornea through an abrasion and through lowered resistance, and that you would not get an ulcer without an abrasion to the cornea. He was asked:
‘Q. Do you not sometimes get an ulcer without an abrasion to the cornea?
‘A. Well, no; I would not say that was possible. I believe in this case there was an abrasion, may not be seen, but it is there, that is, it may not be plain to the naked eye, but there is disturbance of the epithelium before your infection can gain entrance to do its damage.
‘Q. Now, did you find, however, any corneal abrasion, it having been determined upon carefully by examination by an expert that there was no corneal abrasion, for weeks prior to the time that he came to you; what would you say?
‘A. Well, I would think the expert just simply— his expertness. was not sufficient to locate the site of his abrasion by his investigation.
‘Q. Then, Doctor, there is no question whatsoever but what there was a corneal abrasion in this case?
‘A. Yes; in all corneal ulcers you must have an abrasion of the corneal substance before infection can gain entrance to do damage to the substance of the eye.’-
“We do not think it necessary to quote more of the testimony of this physician, but we rely considerably upon his testimony. It seems to the board that this foreign substance caused an abrasion to th'e cornea, and that the ulcer resulted, and that the man lost his eye because of the abrasion and the ulcer.”

Being satisfied that the question presented was one of fact, and that applicant’s claim in regard thereto finds support in the evidence, we are unable to disturb the findings of the board with reference thereto.

The second contention of the respondents is that the loss of the applicant's eye was not due or traceable to accidental injury, but to flagrant personal neglect in refusing to have it treated in accordance with the directions of the physicians. If the board believed the testimony of the applicant and his witnesses, we are of the opinion that it cannot be said that his conduct was so wilful and unreasonable that he should, because thereof, be denied compensation. We must take the applicant as we find him. He was a man apparently of very limited education, and no more knowledge should be expected of an employee than he actually possesses. His claims with reference thereto have been set forth in the findings above quoted, and we do not think that this case is one that should come within the ruling of the court in Kricinovich v. Foun dry Co., 192 Mich. 687 (159 N. W. 362). It is rather more like the ease of Poniatowski v. Stickley Bros. Co., 194 Mich. 294 (160 N. W. 569). It is not a case where the applicant refused all treatment, nor. has he been guilty of a failure to exercise “the primary duty owing to himself and society to make use of every available and reasonable means to make himself whole,” which is the language used in the opinion of Kricinovich v. Foundry Co., supra, in which case it was conceded that the applicant refused to submit .to a minor operation, which in the judgment of all the physicians was not dangerous in itself and would in all probability bring relief. We believe that there is sufficient testimony to support the conclusion of the board that in this case the applicant’s conduct was .not unreasonable or wilful.

The respondents make a further contention that the method adopted by the industrial accident board' in computing the applicant’s average weekly wage was contrary to the provisions of the law; it being claimed that, under the undisputed evidence, the applicant entered the employ .of the Mason Motor Company May 23, 1916, and continued there until October 6, 1916, during which period he worked a portion of 78 days, and that he did not work regularly, and that there were during this period 32 working days when he did not report at all to his employer for service. The record discloses, however, that in September there was a slacking up in the factory, and it also appears that applicant’s irregular work after September 19, 1916, was probably due to the fact that he was suffering from his injury.

Section 11 of part 2 of Act No. 10, Extra Session 1912 (workmen’s compensation law, 2 Comp. Laws 1915, § 5441), provides in part:

* * If the injured employee has not worked in such employment during substantially the whole of such immediately preceding year, his average annual earnings shall consist of three hundred times the average daily wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or a similar employment in the same or a neighboring place, shall have earned in such employment during the days when so employed.” * * *

We are of the opinion that the legislature had in mind that in every employment the employees work more or less irregularly, and that the annual earnings of any employee shall be determined by taking 300 times the average daily wage or salary which the employee has earned in such employment during the days so employed. This was undoubtedly the best method that could be provided for compensating a person; for if the employee does not work often enough to satisfy his employer, the employer has the option to discharge him. We see no error in the method adopted by the board in measuring the compensation.

Being of the opinion that there is no error in the proceedings of the board, the award is affirmed in all respects, with costs in favor of the applicant.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.